rritorial power for the exercise of that advantage.
"In such a case," he concludes, "it may well be that the performance of
its promise by the territorial power becomes unlawful, on the outbreak
of war between the promiser and a third party."[26] For international
purposes the true test is, "Could the power claiming the right of way,
or other servitude, enforce its claims during peace time by force,
without infringing the sovereignty of the territorial power?" Mr. Baty's
opinion is that "if it could, and, if the servitude is consequently a
real right," the promisee might use its road in time of war, and the
owner of the territory would be "bound to permit the use, without giving
offense to the enemy who is prejudiced by the existence of the
servitude."[27] But he continues, "If the right of way is merely
contractual, then the fulfillment of the promise to permit it must be
taken to have become illegal on the outbreak of war and the treaty
cannot be invoked to justify the grant of passage." It is asserted that
in the former case where a real servitude, a right _in rem_, was
possessed, to stop the use of the road would be analogous to the seizure
by a neutral of a belligerent warship to prevent its being used against
the enemy. In the case where the treaty grants the so-called right _in
personam_, a merely contractual or promissory right exists, and the
exercise of the right would be analogous to the sale of a warship to a
belligerent by the neutral granting the permission stipulated in the
treaty. Mr. Baty is of the opinion that while the belligerent might have
"a right _in rem_ to the ship so far as the civil law was concerned," it
would have only a "quasi-contractual right _in personam_ against the
state in whose waters it lay, to allow it to be handed over." Obviously,
the performance of that duty, to hand over the vessel, "would have
become illegal when hostilities broke out."[28]

[Footnote 26: Int. Law in South Africa, p. 74.]

[Footnote 27: Ibid., p. 74.]

[Footnote 28: Ibid., p. 75.]

We have seen in previous pages that the consensus of opinion among
international law authorities of modern times is that a neutral should
in no case whatever allow the use of its territory for the purposes of a
belligerent expedition against a State with which it is upon friendly
terms. But granting the contention made by Mr. Baty that such a thing as
a real servitude may exist in international relations, let us examine
the stip