1710 NOETH ATLANTIC COAST FISHERIES ARBITRATION. 



afterwards. But, I do not care whether they do or not later ; there- 

 fore, I have not troubled to deal with them at all. 



Then the third : That this is the incident or the consequence of a 

 servitude. That is, this effect on sovereignty was so well known and 

 understood at the date of the treaty that it would at that time be 

 taken to attach to every servitude without any express stipulation to 

 that effect being inserted in the treaty by which the servitude was 

 created. 



That is not established. 



The fourth was, that a right of fishing of the kind now in question 

 is and was at the date of the treaty recognised as a servitude. 



Well, it never was at any time, at the date of the treaty or at any 

 other time. 



I have shown, therefore, that the United States has not been able, 

 in the course of its argument, to keep to its own definition of a servi- 

 tude. It has not been able to establish any one of the propositions 

 essential to the proof of its case. Upon a close examination of all 

 the authorities that were laid before us, it turns out that those author- 

 ities themselves related not to international law, but to a quite differ- 

 ent system of jurisprudence, with which the negotiators of that 

 treaty were wholly unconcerned; so that there is an end, I venture 

 respectfully to submit, of the doctrine of servitude. 



I have a statement of the extraordinary variations upon the dif- 

 ferent authors in relation to servitudes. They can scarcely, any of 

 them, be got to agree on almost any essential characteristic of the 

 doctrine. Some say that it is a real restriction on sovereignty in 

 general. Others say it is a real restriction on territorial sovereignty. 

 And those again are divided into two classes, those who say it is a 

 restriction on the power of the State within its territory, and those 

 who say it is a restriction on the powers of the State over the land 

 forming its territory. 



I do not know whether the Tribunal would care to have those 

 authors who, on all of these different points, have expressed these 

 opinions. 



For instance, take the first class, those who say it is a real restric- 

 tion on sovereignty in general. They are: Kliiber, Von Neumann, 

 Lomanaco, Despagnet, Gareis, and Merignhac. 



Then those who say it is a real restriction on territorial sovereignty. 

 Of those the first class are the ones who say it is a restriction on the 

 powers of the State within its territory : G. F. De Martens, Heffter, 

 Hartmann, Heilborn, Bluntschli, Calvo, Creasy, Pradier-Fodere, 

 Rivier, F. de Martens, Chretien, and Bonfils. 



I need not go into great detail over it. 



Then there are those who say it is a restriction on the powers of 

 the State over the land forming its territory: H. P. Oppenheim, 



