INTRODUCTION Ixxxvii 



"Fifth. The right created by the treaty of 1818 in favour of the United States, 

 was an international servitude. It is a right belonging to the United States, it is 

 one held in perpetuity, and is one to be enjoyed by the United States for its interest 

 and profit in the territories of Great Britain. The majority of the writers speak of 

 it, and of cognate rights such as the French fishery right, the English right to cut 

 log-wood in the Bay of Honduras, and other similar rights as undoubted servitudes. 



"Sixth. While servitude rights are exercised as sovereign rights by the domi- 

 nant state, the mode of exercise, in order that it may be civililer, and not interfere too 

 much with the internal administration of the servient state, is, unless the mode of 

 exercise is prescribed in the treaty establishing the right, necessarily reserved for 

 subsidiary treaties. These are called, by some writers, 'modalities.' Of this char- 

 acter were the declarations of the two Monarchs concerning the manner of carrying 

 on the French fisheries attached to the French-English treaty of 1783. The right 

 claimed by the United States here is in effect that its servitude cannot be interfered 

 with except by and through such a subsidiary treaty or other similar arrangement, 

 which shall prescribe the mode of carrjfing it on, and the extent and manner in which 

 the one or the other nation may interfere in its exercise." ' 



British counsel did not meet the issue thus squarely raised. They 

 objected that the doctrine of international servitude was dangerous; 

 that the Convention of 18 18 was the origin and measure of the right and 

 that its terms should be interpreted without invoking principles of inter- 

 national law; that the doctrine is of Roman origin and in its modern 

 form is based upon the peculiar conditions of the Holy Roman Empire; 

 that it was not universally recognized by writers on international law; 



party from taking the measures necessary for the exercise of its right. For, when a certain 

 right is granted, the measures necessary for its exercise must also be given." (Diss, de juris 

 public! servitutibus, section 34, Strassburg, 1689, quoted from Clauss' Die Lehre von den 

 Staatsdienstbarkeiten, p. 53.) 



(2) Writing in 1743 and 174s, the celebrated Christian Wolf cited examples of servitude, 

 and stated as a fundamental principle the freedom from local regulation in their exercise: 



"The fishing rights in foreign rivers or occupied parts of the sea, rights of fortification on 

 alien soil, right of garrisoning a foreign fortified place, jurisdiction in certain localities of a 

 foreign territory or for certain legal actions or over certain persons, etc." 



In the matter of jurisdiction of a state over foreigners entitled to the exercise of the servi- 

 tude, Wolf says: 



"For the exercise of his right is absolutely independent of the will of the sovereign of the 

 territory, since he is not subject to the laws of the land with regard to acts connected with the 

 exercise of his right; but as to other acts he cannot be regarded otherwise than as a foreigner 

 residing in foreign territory." (Jus Naturae, Vols. IV and V, quoted from Clauss, pp. 72, 199.) 



(3) Vattel, the Swiss publicist, said in 1758: 



"We may in the same manner grant the right of fishing in a river, or on the coast, that 

 of hunting in the forests, etc., and, when once these rights have been validly ceded, they con- 

 stitute a part of the possessions of him who has acquired them, and ought to be respected in 

 the same manner as his former possessions." (Droit des Gens, Vol. I, Bk. 2, ch. 7, sec. 89.) 



(4) In 1819, Kliiber said: 



"It is likewise essential that the state to which the right belongs shall be, as to its exer- 

 cise, independent of the state burdened with the servitude." (Droit des Gens Moderne de 

 I'Europe, sec. 138.) 



For other and more recent authorities on this point, holding that the grantee of the right 

 is free from the local restriction of the grantor in its exercise, see Senator Root's argument, 

 pp. 243-254. To this list should be added Heffter, Droit International de L'Europe, 

 sees. 64, 76. 



* Oral Argument, Vol. I, pp. 336-337- 



