1702 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



citizens of the United States, subject to laws and regulations of Great 

 Britain or Canada. Then Article 27 is: 



" The Government of Her Britannic Majesty engages to urge upon 

 the Government of the Dominion of Canada to secure to the citizens 

 of the United States the use of the Welland, St. Lawrence, and 

 other canals in the Dominion on terms of equality with the inhabit- 

 ants of the Dominion, and the Government of the United States 

 engages that the subjects of Her Britannic Majesty shall enjoy the 

 use of the St. Clair Flats canal on terms of equality with the inhab- 

 itants of the United States, and further engages to urge upon the 

 State Governments to secure to the subjects of Her Britannic Majesty 

 the use of the several State canals connected with the navigation of 

 the lakes or rivers traversed b}' or contiguous to the boundary-line 

 between the possessions of the high contracting parties, on terms of 

 equality with the inhabitants of the United States." [British Case 

 Appendix, p. 41.] 



And then Article 28: 



" The navigation of Lake Michigan shall also, for the term of years 

 mentioned in Article XXXIII of this treaty " 



Ten years 



" be free and open for the purposes of commerce," 



There you have three temporary liberties, that is, temporary be- 

 cause the treaty was temporary, analogous to this liberty. Are these 

 servitudes or not ? I find on p. 59 of the United States Argument : - 



" These two articles secured to each country the free navigation of 

 certain rivers and lakes within the territories of the other, creating 

 undeniable servitudes in favor of each country as against the other." 



So what are we to take servitudes to be? The three elements of 

 the definition with which Mr. Turner gaily started out he finds cannot 

 be kept to the end. The prrcdiality is gone. That he says was in 

 the third factor of his definition. And the permanence is gone; that 

 was in the second element of his definition. And as to the first, that 

 it must belong to a State,- -well, anybody can judge that for himself. 

 A State cannot fish. It is only its inhabitants that can fish. So that, 

 really, there is nothing left of his definition. And yet we are asked 

 to accept the doctrine that servitudes were so well known and so 

 universally understood that even a well-informed man like Lord 

 Bathurst, and a learned and ingenious jurist like Lord Oastlereagh, 

 together with a busy patriot like Mr. Adams, and a great politician 



like Mr. Monroe must be supposed to have known all about it. 

 1030 I think I am now able to pass to the historic part of the 



case, where these servitudes come from, how they got into 

 international law, to its confusion and its detriment. 



As we know, in going through this long list of authorities, in 

 Grotius, the father of international law, the word " servitude " is 

 not to be found. He is writing in the latter part of the seventeenth 



