26 THE ARGUMENT OF THE UNITED STATES. 



would be a departure from, and therefore a modification of, existing 

 international law. 



The correctness of the analogy between the servitudes of Roman 

 law and those of international law has been questioned by a few 

 writers, among whom may be mentioned Jellinek and Nys. It is not 

 deemed necessary to stop now to notice these writers, since they all 

 recognize the practical adoption of the institution into international 

 law, and it is the practice of nations, and not the theoretical correct- 

 ness of conceptions on which they act, which constitutes interna- 

 tional law. 



The writers differ in theory as to the nature or character of the 

 sovereignty which servitudes may limit. One school holds that it is 

 only the sovereignty of the state in relation to its territory which 

 may be limited; another school, that any limitation of sovereignty, 

 short of its entire destruction, creates a servitude. Both schools 

 agree, however, as to the essentials of a servitude, which in simple 

 terms, adopting the theory of the first school as sufficient for the 

 purposes of this case, may be defined as a grant of rights by one state 

 to another, which restrict and limit the territorial sovereignty of the 

 first state in favor of the second, to be exercised and enjoyed by the 

 latter state, or to be exercised and enjoyed by the citizens or subjects 

 of the latter state if the rights acquired be in reality for the benefit 

 of its citizens or subjects. 



In parting with the sovereign right of control, unless there be 

 a reservation in fact or intent of the parties, the dominant state has 

 acquired what the burdened state granted, namely, a sovereign right 

 to be exercised by the dominant state independently of the grantor, 

 in so far as the servitude requires such exercise. The right acquired 

 is a real right, as distinguished from an obligation, that is to say, 

 it is a right inhering in the soil and goes with the soil or territory 

 burdened with it into whose hands so ever it may pass. 



It is true, as stated by the writers, that a right of such a sovereign 

 nature should be strictly interpreted, that is to say, that it should 

 not be presumed without evidence, (i. e., a treaty or other satisfactory 

 evidence,) that a state has parted with the exclusive right to exercise 

 territorial sovereignty within the burdened territory; but, as the 

 grantor is sovereign in all respects in the territory in which the servi- 

 tude is to be created it may grant or restrict its sovereignty absolutely 

 or qualifiedly, for the greater includes the lesser. 



