2130 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



to another nation, or to foreigners in general, since everyone may 

 dispose of his own property as he thinks fit. Thus, several sovereigns 

 in the Indies have granted to the trading nations of Europe the 

 privilege of having factories, ports, and even fortresses and garrisons 

 in certain places within their dominions. We may in the same man- 

 ner grant the right of fishing in a river, or on the coast, that of hunt- 

 ing in the forests, &c., and, when once these rights have been validly 

 ceded, they constitute a part of the possessions of him who has 

 acquired them, and ought to be respected in the same manner as his 

 former possessions." 



To come to later witnesses, and without wearying the Tribunal by 

 going all through the long list witnesses not telling what the law 

 is at the time they write, but telling what the law long has been 

 I will testify to my confidence in the accuracy of Mr. Clauss. He 

 says, after describing what he calls the servitude, what I have been 

 calling a burden, in the words which I have already cited : 



" From this it follows that the entitled State cannot be hindered 

 in the exercise of the authority belonging to it, or even have such 

 exercise rendered difficult for it by certain measures; just as, on the 

 other hand, it is also the duty of the entitled State not to go beyond 

 the rights granted to it. Within the limits created by treaty, how- 

 ever, the dominant State is entirely free and independent of the sov- 

 ereignty of the servient State. The legislation of the servient State 

 must yield to the servitude right of the foreign State." 



That is not Mr. Clauss's opinion about what ought to be; that is 

 the evidence of one of the best, if not the best, and most approved 

 statements of recent time regarding what the law of nations has 



been and is. 

 1288 Kliiber says: 



" It is likewise essential that the State to which the right 

 belongs shall be, as to its exercise, independent of the State burdened 

 with the servitude." 



Heilborn cites as being correct the words of Clauss which I have 

 just read. 



I will not multiply these citations, they are to be found in the 

 copious extracts presented by Mr. Turner. I select them from differ- 

 ent periods, from most approved writers, showing illustrations of the 

 testimony regarding the nature of this rule, and I care not whether 

 you say that this is a real right or an obligatory right, it is proved 

 beyond perad venture that the nations have confirmed by usage, and 

 regard as a matter of rule, that this kind of right is a right which 

 in limiting sovereignty excludes the sovereignty of the burdened 

 State from diminishing, modifying, or restricting the right that con- 

 stitutes the burden. 



JUDGE GRAY : You do not depend on that, Mr. Root, do you, for the 

 contention that there was no right to modify or limit? It does not 

 depend upon its classification as a technical servitude ? 



