ARGUMENT OF MR. ROOT 249 



The great Vattel, in 1758, just five years before the treaty of 

 1763 assured to France that her subjects should have the hberty 

 to take fish on the shore of Newfoundland, and just sixty years 

 before the treaty of 18 18 was made, says: 



"There exists no reason why a nation, or a sovereign, if authorized by 

 the laws, may not grant various privileges in their territories to another nation, 

 or to foreigners in general, since everyone may dispose of his own property 

 as he thinks fit. Thus, several sovereigns in the Indies have granted to the 

 trading nations of Europe the privilege of having factories, ports, and even 

 fortresses and garrisons in certain places within their dominions. 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 constitute a part of the possessions of him who has acquired them, 

 and ought to be respected in the same manner as Ms former possessions." 



To come to later witnesses, and without wearying the Tribunal 

 by going all through the long Hst — witnesses not telKng what the 

 law is at the time they write, but telUng what the law long has 

 been — I will testify to my confidence in the accuracy of Mr. 

 Clauss. He says, after describing what he calls the servitude, 

 what I have been calUng a burden, in the words which I have 

 aheady cited: 



"From this it follows that the entitled state cannot be hindered in the 

 exercise of the authprity belonging to it, or even have such exercise rendered 

 difficult for it by certain measures; just as, on the other hand, it is also the 

 duty of the entitled state not to go beyond the rights granted to it. Within 

 the limits created by treaty, however, the dominant state is entirely free 

 and independent of the sovereignty of the servient state. The legislation of 

 the servient state must yield to the servitude right of the foreign state.'' 



That is not Mr. Clauss's opinion about what ought to be; that 

 is the evidence of one of the best, if not the best, and most approved 

 statements of recent time regarding what the law of nations has 

 been and is. 



Kliiber says: 



"It is hkewise essential that the state to which the right belongs shall be, 

 as to its exercise, independent of the state burdened with the servitude." 



Heilborn cites as being correct the words of Clauss which I 

 have just read. 



