76 NOETH ATLANTIC COAST FISHERIES ARBITRATION. 



The Tribunal is unable to agree with this contention : 



(a.) Because there is no evidence that the doctrine of international 

 servitudes was one with which either American or British statesmen 

 were conversant in 1818, no English publicists employing the term 

 before 1818, and the mention of it in Mr. Gallatin's report being in- 

 sufficient ; 



(b.) Because a servitude in the French law, referred to by Mr. 

 Gallatin, can, since the Code, be only real and cannot be personal 

 (Code Civil, article 686) ; 



(c.) Because a servitude in international law predicates an express 

 grant of a sovereign right and involves an analogy to the relation 

 of a praedium dominans and a praediuTn serviens,' whereas by the 

 treaty of 1818 one State grants a liberty to fish, which is not a sov- 

 ereign right, but a purely economic right, to the inhabitants of 

 another State; 



(d.) Because the doctrine of international servitude in the sense 

 which is now sought to be attributed to it originated in the peculiar 

 and now obsolete conditions prevailing in the Holy Roman Empire of 

 which the domini terrce were not fully sovereigns ; they holding terri- 

 tory under the Roman Empire, subject at least theoretically, and in 

 some respects also practically, to the courts of that Empire; their 

 right being, moreover, rather of a civil than of a public nature, par- 

 taking more of the character of dominivm than of imperium, and 

 therefore certainly not a complete sovereignty. And because in con- 

 tradistinction to this quasi-sovereignty with its incoherent attributes 

 acquired at various times, by various means, and not impaired 

 111 in its character by being incomplete in any one respect or by 

 being limited in favour of another territory and its possessor, 

 the modern State, and particularly Great Britain, has never ad- 

 mitted partition of sovereignty, owing to the constitution of a mod- 

 ern State requiring essential sovereignty and independence ; 



(e.) Because this doctrine being but little suited to the principle of 

 sovereignty which prevails in States under a system of constitutional 

 government such as Great Britain and the United States, and to the 

 present international relations of sovereign States, has found little, if 

 any, support from modern publicists. It could therefore in the gen- 

 eral interest of the community of nations, and of the Parties to this 

 treaty, be affirmed by this Tribunal only on the express evidence of 

 an international contract; 



(/.) Because even if these liberties of fishery constituted an inter- 

 national servitude, the sei*vitude would derogate from the sovereignty 

 of the servient State only in so far as the exercise of the rights of 

 sovereignty by the servient State would be contrary to the exercise 

 of the servitude right by the dominant State. "Whereas it is evident 

 that, though every regulation of the fishery is to some extent a limi- 



