240 FISHERIES ARBITRATION AT THE HAGUE 



about servitudes are establishing a basis for servitudes by their 

 references to the analogy of the civil law, of the Roman law. The 

 process is precisely the contrary. In international law, as in the 

 customary law of municipalities, the internal private law of states, 

 a right is discerned; men by contract, or nations by treaties, create 

 a right; natural and necessary consequences are seen to flow from 

 that right; and in international law a series of consequences flowing 

 from the creation of a particular class of rights has been explained 

 by publicists by a reference to the analogy of servitudes imder the 

 Roman law. The rights are not inade to depend upon the analogy; 

 they are explained by the analogy. That is all that an analogy 

 can ever do — to elucidate, make clear, carry home to the mind 

 the true nature of the subject to which the analogy is applied. We 

 are not here, and we never have been here claiming that we are 

 entitled to have our treaty right here held inviolable because it is 

 a right founded upon an analogy to the Roman law of servitudes. 

 We are here saying that this is a right which may be understood 

 under a treaty which must be interpreted in the light of the explana- 

 tions of this and similar rights during a long series of years, and 

 explanations accepted by the nations of the world, so that they have 

 become a rule of construction for conventions which create similar 

 rights. How are we to find, how are we to prove, in the words of 

 the Attorney-General, what the rule of international law is which 

 is to be applied to the construction of this convention ? We are 

 not without an exposition of the method of proof by a very great 

 English judge, and a very great authority in international law. 

 In the case of The Queen vs. Keyn, so often cited here, in L.R. 2 

 Exchequer Division, p. 63, Sir Robert Phillimore, in his very able 

 opinion, in which he based his construction of the statutes of Great 

 Britain and his view of the legal effect of those statutes very largely 

 upon an application of the rules of construction which had been 

 built up in this way by the common consent of nations, cites a 

 number of authorities which are very pertinent to the question as 

 to the way to prove the rule of construction to which the Attorney- 

 General appeals. 



He cites Mr. Wheaton as saying: 



Text writers of authority, showing what is the approved usage of nations, 

 or the gener,a] opinion respecting their mutual conduct, with the definitions 



