xc INTRODUCTION 



and the admission of British counsel, even although it rejected the doc- 

 trine advanced and maintained with great earnestness by American 

 counsel. 



Among the reasons which led the Tribunal to reject the doctrine 

 of servitudes and its consequences three may be mentioned. 



The first is that "there is no evidence that the doctrine of inter- 

 national servitudes was one with which either American or British 

 statesmen were conversant in 1818, no English publicists employing 

 the term before 1818, and mention of it in Mr. Gallatin's report being 

 insufficient;" the second that the doctrine is "but little suited to the 

 principle of sovereignty which prevails in states under a system of con- 

 stitutional government," the third that it "has received little, if any, 

 support from modern publicists.^ It could, therefore, in the general 

 interest of the community of nations, and of the Parties to this Treaty 

 be affirmed by this Tribunal only on the express evidence of an inter- 

 national contract." 2 



To this positive statement it may be replied that British statesmen 

 had opportunity to familiarize themselves with the doctrine before 181 8, 

 for Great Britain had acquired servitudes and been a party to treaties 

 creating them concluded before that date; that Mr. Gallatin's report 

 of 1818, made at the time when the negotiations of 1818 were fresh 

 within his mind, and before controversies had arisen upon the subject, 

 shows that the question was discussed and that the American negotiators 

 were familiar not merely with the doctrine and its consequences, but 

 with its technical name. 



However unsuited the doctrine of servitudes and the burdens it 

 imposes may be to states enjoying the priceless boon of constitutional 

 government; there are, however, several recent instances of interna- 

 tional servitudes to be found in treaties between constitutional states. 

 Thus, by the treaty of June 30, 1899, Germany burdened the Caroline 

 Islands, which Spain had just ceded, with a servitude in favor of Spain.' 

 Again, by the Treaty of Portsmouth of September 5, 1905, between Russia 

 and Japan, the contracting parties mutually agreed not to construct 



■Notwithstanding tliis statement of the tribunal the. Doctrine lilce Banquo's ghost 

 will not down. As this volume is passing through the press, the doctrine is restated and 

 defended by Pierre Labrousse, Des Servitudes en droit International Public, 1911. 



^ Appendix, p. 4q6; Oral Argument, p. 1440. 



' (Art. i) " Spain cedes to Germany the full sovereignty over, and property of the Caroline, 

 Pellew, and Mariana islands (except Guam), in return for a pecuniary indemnity of 25,000,000 

 pesetas. 



(Art. 2) "Spain will be allowed to establish and to keep, even in time of war, deposits of 

 coal for her war and merchant fleets; one in the archipelago of the Carolines, another in the 

 archipelago of the Pellew Islands, and a third in the archipelago of the Mariana Islands." 

 (British and Foreign State Papers, 1899-1900, Vol. 92, pp. 113-114.) 



