SERVITUDES

Origin and Application of the Term. The term servitude is borrowed from the Roman law, and is applied in the international relations of states to express an obligation upon the part of one state to permit a thing to be done or a right to be enjoyed, by another state, within or upon its territory. The thing done, or the right enjoyed, however, must not be sufficient in amount or importance to constitute a restriction upon the sovereignty or independence of the servient or subordinate state. The state enjoying the benefit or privilege of the servitude is called the dominant state. The state lying under the obligation involved is called the servient state. The existence of a servitude is not inconsistent with entire sovereignty and independence on the part of the servient state. The following examples are illustrations of servitudes: Suppose two states, A and B, to be separated by a river; A may lie under a servitude to B not to construct works of improvement upon the boundary river which shall injure the opposite bank. Suppose two states, C and D, to be situated, one above the other, upon the course of a navigable river, the mouth and lower waters being situated in the territory of C; C may lie under a servitude to D of allowing its citizens the privilege of navigating the river to the sea; D may lie under an obligation to C not to use the banks of the river within the territory of C for the purpose of loading and unloading cargoes.

How Created and Terminated. Servitudes may exist by immemorial prescription, such existence being tacitly or expressly recognized by other states. Such, in great part, was the case of the Danish Sound Dues. They may also be created by treaty, and may be amended, increased, or modified in

the same manner. They may be extinguished by treaty, by

'Under the name of easements the principle of servitudes is recognized by the common law, with this difference, however, that whereas a servitude could have been imposed upon an individual or his property

by the sovereign authority of the state, an easement must, according to the common law, originate in an agreement between the interested parties.

non-user, and in some cases by forcible denial of the obligation. They must consist in an obligation to allow a thing to be done, or a right to be exercised, or in refraining from doing a thing; they can never consist in an obligation to do a thing.' They are further classified into positive and negative. A positive servitude consists in allowing a thing to be done, or a right to be exercised upon the territory of the servient state; a negative servitude consists in refraining from the exercise of a right by a servient state.

Examples of Servitude.

A servitude created by treaty

is seen in the lease by Cuba, July 2, 1903, of land for naval stations, the lease, nevertheless, being solely intended as an aid to the United States in maintaining Cuban independence and the protection of the Cuban population; the initial article of the treaty reads:

ARTICLE I

The United States of America agrees and covenants to pay to the Republic of Cuba the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said Agreement.

All private lands and other real property within said areas shall be acquired forthwith by the Republic of Cuba.

The United States of America agrees to furnish to the Republic of Cuba the sums necessary for the purchase of said private lands and properties and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of said Agree

ment.

EXTRA-TERRITORIAL JURISDICTION OF A STATE

Nature and Extent. It has been seen that sovereignty and territory are, in general, conterminous; under certain circumstances, however, a state may exercise jurisdiction over its subjects beyond its strict territorial limits; this extension of jurisdiction is sanctioned in the following cases: (a.) Over its merchant vessels on the high seas; in matters which relate exclusively to persons on board, this jurisdiction, as will presently be seen, follows them into the ports and ter'I Phillimore, § 281; Morey, Outlines of Roman Law, pp. 288-293.

ritorial waters of foreign states into which they may pass in the prosecution of a voyage.

(b.) Over crimes committed by its subjects in territory occupied by savages, or unoccupied, and not claimed by any civilized power. If this jurisdiction were not assumed such crimes as kidnapping, engaging in the slave-trade, etc., would go unpunished. For this reason most states, in their municipal laws, provide for their trial and punishment.

(c.) Over the crime of piracy, by whomsoever committed, on the high seas, or on land without the jurisdiction of any civilized state.

A similar immunity from local jurisdiction attends its public armed vessels, its armies in the field, and other organized bodies of its land-forces, its sovereign, its ambassadors and public ministers, and, in certain cases, its consular representatives; these will presently be discussed under the head of "Ex-territoriality.""

Merchant Vessels on the High Seas. Merchant vessels on the high seas are, for purposes of jurisdiction, acknowledged to be a part of the territory of the state whose papers they carry; crimes, by whomsoever committed, and causes of action arising on board, to which passengers or members of the crew are parties, are triable by its courts; such jurisdiction in criminal cases is not affected by the fact that the accused is a foreigner to the nationality of the ship, the case being precisely the same as if the offence had been committed within the territorial limits of the state under whose flag she sails. From

I Halleck, chap. vii. §§ 24-26; Manning, pp. 117-122; Hall, §§ 4761; I Ortolan, chapters ix. and x.; Lawrence, Int. Law, § 120; Dana's Wheaton, $95.

2 Case of John Anderson: Anderson was a British subject and was employed as an ordinary seaman on board a vessel carrying the American flag. On January 31, 1879, while on the high seas, Anderson assaulted and killed the chief mate of the vessel on which he was em

ployed. On the arrival of the ship in Calcutta, Anderson was arrested by the local authorities on a charge of manslaughter, for which he was tried and convicted. Upon the representations of the United States the British Government expressed its regret at the action of the local authorities, and its substantial concurrence in the views above set forth in respect to criminal jurisdiction on the high seas.-I Dig. Int. Law, §§ 33, 33a; I Halleck,

this principle it follows that, in time of peace, these ships are exempt from visitation and search by foreign vessels of war, except in strict accordance with treaty stipulations. They are subject, however, to such visitation and examination by public armed vessels of their own nation as may be authorized by its municipal laws.'

Merchant Vessels in Foreign Ports. So soon, however, as a merchant ship enters a foreign port it is subject in certain respects to the municipal laws, and especially to the criminal jurisdiction of the country in which the port is situated. For any unlawful acts done by her while thus lying in the port of a foreign state, and for all contracts entered into while there, by her master or owners, she is made answerable to the laws of the place; nor can an immunity from the operation of the local law be claimed for her master or crew if they break the peace or disturb public order in such port by the commission of crimes. But the comity and practice of nations have established the rule of international law that such vessel, so situated, is, for the general purpose of governing and regulating the rights, duties, and obligations of those on board, to be considered as a part of the territory of the nation to which she belongs. It therefore follows that acts happening on board which do not concern the tranquillity of the port, or affect persons foreign to the crew, are not amenable to the local jurisdiction; such matters being, as a rule, justiciable only by the courts of the state to which the vessel belongs.'

chap. vii. § 24; Wheaton, part ii. chap. ii. § 106; Vattel, liv. i., chap. xix. § 216; Grotius, liv. ii. chap. iii. §13; I Ortolan, chap. xiii.; V Pradier-Fodéré, §§ 2263-2265. See also the article on Exterritoriality," by M. Jules Valery, in Revue de Droit International, vol. xxix. pp. 5-25; Crapo vs. Kelly, 16 Wallact, 610; Wilson vs. McNamee, 102 U. S. 574; Re Moncan, XIV Fed. Rep. 44.

'I Ortolan, chap. xii.; Woolsey, § 54; I Halleck, chap. vii. § 20;

I Dig. Int. Law, § 33: Hall, § 45;
Lawrence, Int. Law, § 120.

"I Halleck, chap. vii. § 26; Wheaton, part ii. chap. ii. §§ 101, 102; Vattel, liv. i. chap. xxiii. §§ 290, 295; I Ortolan, chap. xiii.; Hall, §§ 58, 59: Woolsey, § 68; V Pradier-Fodéré, §§ 2417-2437.

'I Halleck, chap. vii. § 26. The principle which governs the whole matter is this: disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of

Wildenhus Case. This occurred in October, 1886. The steamer Noordland, a merchant vessel carrying the Belgian flag, was lying at its pier in Jersey City, a place within the territorial jurisdiction of the State of New Jersey. During an affray which occurred on board the vessel, Wildenhus made a murderous assault upon one Fijens, both being members of