ABGUMENT OF SIB WILLIAM BOBSON. 1679 



DR. DRAGO: In continental legislation the distinction is made be- 

 tween the public property of the State and the private property of 

 the State. 



SIR W. ROBSON : Yes ; of course, in olden times there was no such 



distinction. In the theory of English law every owner of 



1015 land and property is still a tenant of the Crown ; he is a tenant 



in fee simple. That is, of course, a merely historic survival of 



a very ancient state of things. Now the State property is, of course, 



a well-defined portion of the national territory, held exactly like that 



of any private owner. 



I will just finish with these few quotations. They will only take a 

 moment. 



Neumann says: Servitudes depend on treaties. [Sec. 13.] 



And he adds this important sentence, which I think is a very useful 

 one: 



" Their .... exact determination .... depends on treaties." 

 He says that on p. 1 " their exact determination " meaning, when 

 you want to ascertain whether or not there is some particular conse- 

 quence attaching to the establishment of a servitude, you have not got 

 to argue about it, you have got to look at your document. If you find 

 that particular consequence is attached in your document, you must 

 submit. But he says the presumption is always in favour of sov- 

 ereignty; that is to say, unless you have got in your document some 

 clearly expressed fetter on general sovereignty, you cannot put it 

 there. You must not read it in. No implication will do. And that 

 is why I say when the United States, finding their treaty not enough 

 for them, turn to the law, every jurist sends them back again. Every 

 jurist says: "We cannot assist you by presumptions against sover- 

 eignty. Our presumptions are in favour of it." And they are acting, 

 there, upon the sound instinct that what are really mere privileges, 

 touching property, ought never to be construed as privileges touching 

 sovereignty. They ought no more to be so construed in the case of 

 a foreign State than they are in fact so construed in the case of a 

 private person, or the subject of one's own State. It is that distinc- 

 tion which, I say, the jurists have kept in mind, which I respectfully 

 ask the Tribunal also to keep in mind. 

 Pasquale Fiore says: 



" No restriction [on autonomy of state] can be based upon pre- 

 sumption." 



Calvo says: 



" In all these cases necessity creates the servitude of passage, the 

 right of which is confirmed and regulated by special treaties." 



These are what Mr. Turner called the modalities, which are such 

 an essential part of a servitude. If you constitute your servitude you 



