Ixxxiv INTRODUCTION 



to me that two considerations operated strongly against the admission of our right. 

 That right of taking and drying fish in harbours within the exclusive jurisdiction of 

 Great Britain, particularly on coasts now inhabited, was extremely obnoxious to her, 

 and was considered as what the French civilians call a servitude. ... I am satis- 

 fied that we could have obtained additional fishing ground in exchange of the words 

 'forever.'"! 



The American commissioners, for Mr. Gallatin uses the plural, con- 

 sidered the fishing rights acquired by the Treaty of 1783, as well as the 

 Convention of 1818, which they had just negotiated, as "partaking in 

 their nature of territorial rights." That is to say, the United States 

 was obtaining a right to enter the territory of Great Britain to enjoy 

 a right which, without treaty, American fishermen could not claim. He 

 calls attention to the fact that the right acquired by the Convention of 

 1818 was to be perpetual, not for a term of years, and he then designates 

 the right thus acquired, territorial in its nature and perpetual in its dura- 

 tion, as "what the French civilians call a servitude." 



Taking, therefore, as our starting point, the view of the American 

 negotiators first expressed in Mr. Gallatin's report, it is necessary to 

 consider the doctrine of servitude in international law, its essentials and 

 its consequences, for Mr. Gallatin says expressly that the right obtained 

 was a servitude.^ 



In speaking of servitude. Professor Rivier, a recent and highly 

 esteemed authority on international law, says: 



"Two sovereign States are presupposed, of which one is dominant and the other 

 servient. The servitude consists in non faciendo, in such a manner that the servient 

 state renounces the exercise of a determined right of sovereignty, within its territory, 

 in favor of the entitled state, or, in patiendo, in which the entitled state exercises 

 within the territory of the servient state a determined right of sovereignty as its own 

 and independently of the servient state." ' 



Just as the servitude of private law presupposes two estates, the 

 international servitude presupposes two states, and by means of con- 

 vention one state renounces the exercise of the right of sovereignty 

 within its territory which, but for the convention, it might perform, or 

 grants to another state the right within the territory of the grantor to 

 exercise a sovereign right in its own behalf independently of the grantor. 

 The private law of Rome, from which system of jurisdiction the doctrine 

 has been taken, required that the grant should be perpetual, and the 

 right created was real as distinct from personal, because when created, 



» Appendix, pp. 413, 414; Appendix, U. S. Counter Case, p. 619; Appendix British 

 Case, p. g7. 



''The practice of nations with numerous continental and English precedents is briefly 

 stated in Rivier's Principes du Droit des Gens, Vol. I, pp. 296-302. 



' Rivier, Lehrbuch des Volkerrechts, 2d ed., p. 192. Quoted by Mr. Turner, Oral Argu- 

 ment, Vol. I, p. 414. 



