INTRODUCTION Ixxxix 



upon the practice of nations; that these two works were the familiar 

 guides and authorities of diplomatists from the date of their appearance; 

 that the supplementary report of Mr. Gallatin to his government, 

 dated November 6, 1818- — that is, a fortnight after the negotiation of the 

 convention — states specifically that the rights secured by the Americans 

 were what the French civihans called a servitude ;' that exclusiveness is 

 not essential to the conception of servitude;^ that the Convention of 

 1818 was a grant to the United States for the benefits of its inhabitants;' 

 that such a grant creates a servitude according to the authorities on 

 international law, and that the parties to the Convention of 1818 were 

 Great Britain and the United States, not the inhabitants thereof, so 

 that the relation of state to state existed in fact as it did in law. 



The doctrine, however, may have led to the admission that Great 

 Britain could not determine for itself the reasonableness of rules and 

 regulations, an admission wholly inconsistent with the Case, Counter 

 Case, and Written Argument of Great Britain. The Tribunal may have 

 been inclined to attach greater importance to the form of submission 



gress, became subscribers to it; and, I believe, there are few law-libraries in the United States 

 in which it is not to be found." 



' For text of this supplementary report, see Appendix, pp. 413-415; Appendix U. S. 

 Counter Case, p. 619; Appendix, British Case, p. 97. 



^ Thus Heffter (in a passage quoted with approval by Pradier-Fod6r6, Traits de Droit 

 International Public, Vol. II, Sec. 843), says: 



"In case of doubt, the burdened State should not be inconvenienced in any manner in the 

 coexercise of the right granted, unless the latter be entirely exclusive or of a nature only to be 

 exercised by one State or the other State has renounced the coenjoyment." (Le Droit Inter- 

 national de L'Europe, Sec. 43.) 



So Rivier: 



"Unless the contrary intention is expressed, and if the nature of things permits it, the 

 servient state is free to do by itself or by its subjects the acts which form the object of the 

 servitude concurrently with the dominant state, or to concede the same servitude to other 

 states." (Principes du Droit des Gens, Vol. I, Sec. 58, p. 301.) 



' Thus Heffter says: 



"It is a matter of little importance whether it be the State itself or its citizens or subjects 

 which may be entitled to enjoy a servitude. Thus, for example, the right of cutting dyewoods 

 in certain countries for the benefit of British subjects formed an express provision of the Treaty 

 of Paris of 1763 (Article 17)." (Le Droit International de L'Europe, Sec. 43.) 



HoUatz, the most recent writer quoted during the arbitration, says: 



"In practice the actual conditions are in many cases such that the state servitude and 

 its exercise are of no direct advantage to the State itself but only to its subjects; thus, for 

 instance. Art. 13 of the Treaty of Utrecht of April 11, 1713, reads: 



" ' French subjects shall be allowed to catch and dry fish on the coast of Newfoundland.' 



"Article 15 of the peace of Paris of February 10, 1763, reads: 



" ' The French subjects have the hberty to fish and to dry fish.' 



" This does not change the character of the servitude, provided always that two States, 

 two international subjects, are the contracting parties." (Begriff und Wesen der Staatsser- 

 vituten, p. 49, 1908.) 



That the authorities are generally in accord, see Chretien, Principes de Droit Interna- 

 tional Public, Sec. 260; Clauss, Die Lehre von den Staatsdienstbarkeiten, p. 205; Fiore, 

 Nouveau Droit International Public, Vol. II, Sec. 829; Neumann, Grundriss des heutigen 

 europaischen Volkerrechts, 3rd ed.. Sec. 13; Pradier-FodSr^, Droit International Public, Vol. II, 

 Sec. 837; Rivier, Lehrbuch des Volkerrechts, 2nd#d., p. 192. 



