ABGUMENT OF SIB WILLIAM BOBSOU. 1673 



perhaps I should not say that there are none ; it is not necessary for 

 me to prove it there are very few treaties that have got this conse- 

 quence of a transfer of sovereignty attached to a servitude. 



DR. DRAGO : It seems to me that the question of servitudes has been 

 studied by the United States, objectively, taking the terms of the 

 treaty itself into consideration and comparing its status and its con- 

 sequences with the Roman and the modern civil law. At any rate 

 the introduction of the law of servitudes into international law is 

 founded in similarities and analogies with the old Roman law. This 

 being so, I suggest that the analogy should be carried further, re- 

 ferring the question to what the French call la personne juridique 

 or juristic person of the State, considered not as a political or sov- 

 ereign entity, but as a corporate body or corporation acting within 

 the sphere of private law, with the capacity of acquiring rights, of 

 owning property, of burdening it with jura in re, of contracting 

 obligations, &c. Could not this question be referred to the juristic 

 personality of the State aforesaid, and then consider what the issues 

 would be, as distinct and apart from the political state and its 

 sovereignty ? 



SIR W. ROBSON: Yes; that, of course, is what has been done with 

 regard to servitudes. You begin with a notion applicable entirely 

 to private law ; that is to say, to owners of property as between them- 

 selves. There the concept of a servitude is, of course, simple, intel- 

 ligible, and the name servitude appropriate; it is not a name involving 

 any humiliation, or any loss of personal status. It burdens one piece 

 of land with an obligation in favour of another piece of land. There 

 the notion of a servitude fulfils a useful purpose. No questions of 

 sovereignty can arise there. They are questions of ownership, and 

 not of sovereignty. 



Then, the next step was among the mediatised German States, to 

 use this same concept, borrowed from purely private law ; because the 

 mediatised German States really were held originally on feudal prin- 

 ciples as properties, rather than as governments. That is to say, the 

 first notion of government, which prevailed when the feudal system 

 began to fade away, was the notion of a government founded on 

 property. The governor or sovereign was dominus terrce; he was lord 

 of the land. His imperium was really founded upon dominion. It 

 was government founded upon ownership. And thereupon the Ger- 

 mans thought that it was an easy and natural step to take this concept 

 of servitude, quite appropriate as between private owners, and apply 

 it as between public owners, treating sovereignty as a form of owner- 

 ship. 



It began then to be much less applicable, much less appropriate, be- 

 cause the notion of sovereignty imported a great many things that 

 were entirely foreign to ownership. It began then to be much less 

 92909 S. Doc. 870, 61-3, vol 11 7 



