30 THE ARGUMENT OF THE UNITED STATES. 



Those who have discussed the matter with both care and fullness 

 are Kliiber, Dr. Alphonse Rivier, Heilborn, Clauss, Von Neumann. 

 Pradier-Fodere, and Von Ullmann. These latter authors leave no 

 room for doubt that the dominant state exercises its servitude right 

 independently and with entire freedom from the control of the 

 servient state, and that the latter retains no power to do anything 

 which in fact impairs, interferes with, or burdens in any manner 

 the exercise or enjoyment of the servitude. 



THE TBEATY BIGHT IN THIS CASE POSSESSES THE ESSENTIAL 

 ELEMENTS OF AN INTERNATIONAL SERVITUDE. 



The three essentials of an international servitude, as laid down 

 by the authorities, are (1) that it be created by one state for the 

 benefit of another state; (2) that its permanency must be beyond the 

 control of the state by which it is created; (3) that it make the terri- 

 tory or a part of the territory of one state serve a purpose or an 

 interest of another state. All these essentials are present in the grant 

 to the United States by Great Britain of the fishery right, made by 

 the treaty of 1818. 



First. The treaty carries a grant from one nation to another. 

 There is, therefore, no warrant for treating the right as a mere con- 

 cession to individuals, as the British Case attempts to do. The 

 United States can only enjoy a fishery right through its inhabitants, 

 and if the grant had been to the United States, without mention of 

 its citizens or inhabitants (a form it is believed, never employed in 

 granting economic servitudes) the necessary construction would have 

 been that the grant was to the United States for the benefit of its 

 inhabitants. Moreover, in its final analysis, the inhabitants of the 

 state are the state, and the ultimate sovereignty in a republic, how- 

 ever it may be considered with reference to other forms of govern- 



I'Europe, sec. 43. Bluntschli: Droit International, sec. 355, p. 212. Despagnet: 

 Cours de Droit International Public, sec. 190. Pradier-FodSre' : Traitti de 

 Droit International Public, European and American, sees. 834-838. Gareis: 

 Institutions des Volkerrechts, p. 205. Rivier: Principes du Droit des Gens, 

 sec. 23. Diena : Principi di Diritto Internasionale, p. 125. Fiore : Diritto In- 

 ternazionale Codiflcato (4th ed., 1909), sec. 1096. Oppenheim: International 

 Law (1905), sec. 203-205. Clauss: Lehre von den StaatsdienstbarJceiten, pp. 

 114-198, 224, 225, 226, 227. Kliiber : Droit des dens Moderne de VEurope, Ott's 

 2d ed., sec. 137, pp. 194, 195. Dr. Alphonse Rivier : Lehrbuch des Volkerrechts, 

 2 ed., p. 192. Heilborn: System des Volkerrechts, entwickeU ana den Volker- 

 rechtlichen Begriffen, 1896, pp. 30-34. Von Neumann : (Jrundrisx (let; leutigcn 

 Europdischen Volkerrechts, 1885, sec. 13, pp. 31-33. Von Ulluiann: Volker- 

 recht, 2 ed., 1908, sees. 99-100. 



