ARGUMENT OF SIR WILLIAM BOBSON. 1703 



century. And it is not to be found, either, in Vattel. It is not until 

 we get to the author Vitriarius, who, I think, writes in 1686, that the 

 word appears at all, in relation to public rights, or. I should rather 

 say, in relation to the rights of public bodies. It was purely an 

 expression current among those who are concerned with municipal 

 law. Vitriarius uses it, but he uses it of course really and strictly in 

 reference to German constitutional law. 



One must be most careful how one applies expressions, which 

 really work quite conveniently as between German mediatised States, 

 *o international relations. The Germans were able easily to deal with 

 servitudes founded upon notions of property, notions of dominium as 

 opposed to imperium, because they kept their feudal conceptions in 

 their public law, I think, somewhat longer than other States. And 

 they might quite naturally talk of one mediatised State being servient 

 to another mediatised State. And it will be found that all the early 

 writers, down to 1818 with just two possible exceptions who wrote 

 about servitudes, and whose books were laid before this Tribunal, 

 are all writing about German law not international law at all. Ex- 

 pressions are taken by Mr. Turner, printed for the benefit of the 

 Tribunal, with relation to servitudes as these writers are dealing with 

 them. But when one comes to classify these writers in order of 

 date as, after all, dates are everything here, when you are constru- 

 ing a treaty in 1818 we find that all the expressions they used, all 

 the principles they laid down, have no relation at all to European 

 law, but purely and simply to the relations of subordinate States with 

 a somewhat imperfect sovereignty. 



The first of them, still a German, who is said by Mr. Clauss to have 

 divested the concept of its garment of private law. and to introduce 

 it into the domain of public law was Engelbrecht. He wrote in 

 1739. But the public law into the domains of which he introduced 

 this term was still strictly German. For instance, he is dealing with 

 well-known rights, very necessary among German States, of the 

 passage through territory, through foreign States and rivers, to 

 enter other ports, and so on; but that he is dealing with it as a 

 German matter is shown by his saying that the court of competent 

 juridiction for deciding disputes in relation to servitudes there are 

 two such courts: One the Imperial Chamber, and the other the 

 Imperial Council. So that Engelbrecht must be treated as not 

 touching international law. It cannot be supposed that the diplo- 

 matists of Europe in making their treaties, were concerned to know 

 anything about the law of German States, as between themselves. 



I shall try to take these authors in groups, because I could not ask 

 the Tribunal to go again through them seriatim; and I think I shall 

 be able to deal with them shortly. I take some others of the authors 

 mentioned and very well dealt with by Mr. Clauss: 



