kxxviii INTRODUCTION 



that no English writer had discussed the subject before the Convention 

 of 1818; that the doctrine, however prevalent in modern treatises, was 

 not before the negotiators, who could not, therefore, be taxed with its 

 recognition or consequences; that the French right, if a servitude, was 

 so because it was exclusive, whereas the American right was by express 

 terms a right in conamon; that the liberty was a grant to the inhabitants 

 of the United States, not to the United States as a nation, and that, 

 therefore, the relation of state to state was lacking. 



In reply to these objections it may briefly be said that there is cer- 

 tainly no vaUd objection to a doctrine of international law, recognized 

 by writers of authority and sanctioned by the practice of civilized states 

 merely because it is derived from the private law of Rome, for much of 

 international law is of Roman origin, and the first systematic treatise 

 on the law of nations, published by Grotius in 1625, will be searched in 

 vain for evidences that the principles there enunciated were based upon 

 common law conceptions; that authoritative writers on international 

 law, with but few exceptions, acknowledge the international servitude 

 as a constituent part of the law of nations and as the common practice 

 of nations during the past three centuries; that the failure of English 

 writers of authority to discuss the doctrine before 1818 is due to the 

 fact that there were then no such writers of authority,^ but the doctrine 

 was discussed by such masters of international law as Wolf, Vattel, and 

 G. F. de Martens; that Vattel's treatise on the law of nations, published 

 in 1758, was translated into Enghsh in 1760; that de Martens' treatise 

 of 1788, translated into English by Wilham Cobbett and published at 

 Philadelphia in 1795,^ discussed the doctrine of servitude and based it 



1 In the case of Triquet v. Bath (3 Burrow's Reports, 1479), decided by Lord Mansfield in 

 1764, that eminent judge referred to the case of Buvot ». Barbut as decided by Lord Chancellor 

 Talbot upon "the authority of Grotius, Barbeyrac, Binkershoek, Wiquefort, etc.; (here being 

 no English writer of eminence upon the subject." 



It is believed that this condition continued until the appearance of Manning's Commen- 

 taries on the Law of Nations, published in 1839. 



" There was then no English treatise on the subject (though there were two by Americans), 

 and Manning's book was noticeable for its historical methods, its appreciation of the com- 

 bination of the ethical and customary elements in international law, as well as for the exact- 

 ness of its reasoning and its artistic completeness." (Dictionary of National Biography, article 

 Manning.) 



As a matter of fact, Rutherford's Institutes of Natural Law, published at London in 1734 

 — a work reUed upon by British counsel on another point — treats services (servitudes) at con- 

 siderable length as restrictions upon the use of property. (Rutherford's Institutes, 2d Ameri- 

 can edition, pp. 35-37.) 



' In speaking of de Martens' work and its popularity in the United States, Cobbett says, 

 in the advertisement of the English edition of 1802; 



"A French copy of this work was received in America in the year 1794. It came into the 

 hands of the government, who, impressed with a high opinion of its utiUty, were very anxious 

 that it should obtain a general circulation; for which purpose it was necessary that it should 

 be translated into English, a task which it happened to fall to my lot to discharge. The trans- 

 lation met with great success. The President, the Vice-President, and every member of the Con- 



