ARGUMENT OF SIB WILLIAM KOBSOIT. 1707 



only know their works from what Mr. Clauss says about them. But 

 there is not one of them that supports the proposition of the United 

 States. 



So that, in 1818, there was no obligation on these diplomatists to 

 know anything at all about servitudes. It was purely a question for 

 that great group of states, having such very intricate relations among 

 themselves, that went to form the great German nation if one may 

 use that term of that race at that time; it had no bearing and no 

 interest in relation to international law. 



That is really conclusive. It is conclusive against the United 

 States contention. They have treated a number of writers who 

 speak of servitudes as establishing that the doctrine existed at that 

 time ; and having established, as they think, that the doctrine existed 

 at that time, they have left it there. I say they have left it, and 

 have gone on to assume that they might attach to that doctrine at 

 that time all these consequences, some of which are hinted at, or 

 expressed, or advocated by writers at a later date. Writers of later 

 date will not do. It is writers of the date up to that time alone who 

 are admissible authorities to establish their contention. And when 

 those writers come to be examined in detail, and classified according 

 to their views, it is seen that none of them supports the United States 

 view. 



Later on, no doubt, some writers did give a much wider scope to 

 the doctrine. I am really not concerned to deal with those writers. 

 I am in a position to deal with the variations that all of them show 

 in regard to their views on servitudes, but it is really quite unimpor- 

 tant. What matters to us anything after 1818? Because it is the 

 construction of this contract, this treaty which has been laid before 

 this Tribunal. When one comes, therefore, to look at the whole of 

 this doctrine of servitudes, how inappropriate it is. In the case of 

 the particular contract under review, it really has no application 

 at all; because it came into existence substantially so far as inter- 

 national law is concerned, after this contract altogether. And it 

 has since pursued a very devious and uncertain course. It has rested 

 upon an unreal distinction, an undesirable distinction so far as 

 juristic purposes are concerned, a distinction between territorial 

 and national sovereignty. These authors do not generally ask 

 themselves what sovereignty means. And it is very striking with 

 regard to Mr. Clauss, whose book has played so large a part in this 

 enquiry. He does not profess to have given much study to the con- 

 cept of sovereignty. 



One cannot help making some observation about the way in which 

 Mr. Clauss is laid before this Tribunal as an authority. His 

 industry has been admirable. As a compendium of what previous 

 writers have said on this subject, the work of Mr. Clauss displays 



