ABGTJMENT OF SIB. WILLIAM ROBSON. 1705 



" If the territorial ruler in whose territory a certain state servitude 

 is exercised possesses undiminished all sovereign rights with which 

 the exercise of a state servitude is compatible, then the right of super- 

 vision is the one which can be least taken away from him, for without 

 this essential sovereign right, the ruler cannot know what is taking 

 place in the state; he can neither prevent impending damage to the 

 state nor promote the advantage of his state." 



There is an admirable principle. Gonner says-: 



" If you infringe the sovereignty of a State, see what you are doing. 

 If you allow an alien to come into a territory, and there exercise, as 

 of his own authority, rights of jurisdiction, the proper Governor of 

 the State does not know what is happening. He does not know what 

 the other alien sovereign may be doing on his own account. He has 

 not got him under his control. He cannot prevent damage. He may 

 not be able to punish him." 



And so he gives that as a reason why the servitude right must 

 always be strictly subject to the local jurisdiction. That is one of 

 Mr. Turner's authorities which, as I say, I submit, like the others, 

 tell against him, when they come to be carefully examined. 



Then Dresch, who writes in 1808, denies the possibility of a State 

 servitude with reference to sovereign rights, altogether. He confines 

 such rights to property rights. Mr. Clauss makes him say (I can 

 give the references to Mr. Clauss, in which he deals with these 

 authors) : 



" Every agreement entered upon by a republic or monarchy the 

 purport of which is a limitation of the rights of government can 

 only be of temporary duration." 



That does not seem very much to favour that part of the definition 

 which Mr. Turner gave in regard to permanence. Dresch says that 

 in his opinion any limitation on the Government's power is invalid. 

 And it is rather interesting to note that Mr. Dresch refers to the 

 French fishing right, which then existed under the Treaty of Utrecht, 

 and he says it is a servitude. But why is it a servitude? He gives 

 the reason : because he regards it as a mere property right, not as a 

 limitation on sovereignty. When he comes to deal with the servitude 

 as to the fortifications of Dunkirk, one of the very familiar instances 

 that runs all through the authorities, he considers it altogether in- 

 valid, because it touches rights of sovereignty. So here we have got 

 to the year 1800, and so far, of these authors that I have mentioned, 

 not a single one allows that a servitude right can touch sovereignty, 

 Of course, if there is an agreement that it shall touch sovereignty, 

 that is a different thing. 



I now take a group of authors that came next : 



Saalfeld, who writes in 1809 and 1833, and Schmalz, who writes in 

 1817, and Schmelzing, who writes in 1819. Saalfeld and Schmalz 

 simply describe servitudes in general. They do not say anything 

 92909 S. Doc. 870, 61-3, vol 11 9 



