1704 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



Rutter, who wrote in 1754 and 1770; Majer, who wrote in 1775 

 and 1776; and Romer, who wrote in 1789 all of them writing of 

 German State law, but all treated by the United States as though 

 they were really authorities upon European international law. They 

 are nothing of the kind. And Mr. Clauss is conscious of that. He 

 goes on to give us an account of Schmidt, who writes in 1764. I 

 shall trace all the authors that have been cited up to 1818. Schmidt, 

 in 1764, another German author, has something very strong to say 

 about the word " servitude." He does not like it. He thinks that 

 even as between the German States it is wholly inappropriate to 

 introduce it because it touches sovereignty and he thought, as the 

 Tribunal have suggested this morning, that it was a somewhat risky 

 thing to apply this concept to sovereignty ; that is to say, to govern- 

 ment instead of to property, to which it belongs. 



He said it: 



"has .... been incorrectly transplanted from private into public 

 law .... for he who conceives a faithful notion of servitude in 

 private law and applies it to jurisdiction competent in alien territory 

 is led into error servitude should be considered only as a lim- 

 itation of property; .... the rights which belong to the supreme 

 government of the territory .... cannot be separated from sov- 

 ereignty and possessed by another person." 



There was good sound principle. He goes on: 



" This supreme government of a territory .... brings it about 



that the prerogatives which the ruler of the land exercises in foreign 



territory are always subjected to the supervision and control of 



the person possessing the territorial sovereignty .... in that 



territory." 



1031 So that here you have a German author in 1764, still speak- 

 ing only of German constitutional law, and not of inter- 

 national law, and he says, even in that limited sphere, remember that 

 the servient State is nevertheless in point of jurisdiction the gov- 

 erning State; and the servitude itself is to be exercised subject to 

 that local jurisdiction negativing in explicit terms the proposition 

 of Mr. Turner. 



Then take the next authors. They are of much later date, but I 

 have K. A. Zacharia, because he appears early and lasts a long 

 time. He is writing in 1769, and writing again, with undiminished 

 vitality, in 1843. And he says: 



" State servitudes are contractual obligations and are to be judged 

 as such by the principles in force among nations in general in regard 

 to agreements. 



Now comes Gonner, who appears to be, from the way in which 

 other writers speak of him, regarded as a very distinguished author- 

 ity; but he also is writing on German constitutional law, and that 

 only. He is writing in 1800 ; and he says : 



