kind, or should it depend on another's caprice for a great part of what makes nations fulfil their vocation in the world, merely because it lies remote from the sea which is free to all? Tran sit, then, when necessary, may be demanded as a right: an interior nation has a servitude along nature's pathway, through the property of its neighbor, to reach the great highway of nations. It must, indeed, give all due security that trespasses shall not be committed on the passage, and pay all equitable charges for improvements of navigation and the like; but, this done, its travellers should be free to come and go on that water-road which is intended for them. An owner of the lower stories of a house could hardly shut out persons living in the upper, of which there was another proprietor, from the use of the stairs.-A river is one. As those who live on the upper waters would have no right to divert the stream, so those on the lower cannot rightfully exclude them from its use.

The law of nations has not acknowledged such a right, but has at length come to the same result by opening, in succession, the navigation of nearly all the streams flowing through the territory of Christian nations to those who dwell upon their upper waters, or even to mankind. We annex a sketch of the progress of this freedom of intercourse by means of rivers.

enna. The Rhine,

An Act of the Congress of Vienna, in 1815, declared that the use of streams separating or traversing the Congress of Vi territory of different powers, should be entirely etc. free, and not be denied for the purposes of commerce to any one, being subject only to police rules, which should be uniform for all, and as favorable as might be for the traffic of all nations. Other articles require uniform tolls for the whole length of a stream, and nearly uniform,-not exceeding the actual rate,— for the various kinds of goods, rights of haulage, etc.* By this act the Rhine became free; but a controversy having arisen as to what was to be understood by the Rhine, near the sea, it was decided by the nations having sovereignty over its banks, that navigation should be open through the mouths called the Waal and the Leck, and through the artificial canal of Voorne.

* Articles 108-117 in the Appendix to Wheaton's El.

The Scheldt.

The same act opened the Scheldt, which had been closed by the peace of Westphalia to the Spanish Netherlands in favor of the Dutch, and opened by the French on their occupation of Belgium in 1792. On the divulsion of Belgium from Holland, in 1831, the treaty of separation again provided for the free navigation of this river.* All the other navigable streams of Europe were open to the inhabitants on their banks, either before the treaty

The Danube.

of Vienna, or by its general rule above mentioned, with the exception of the Danube. By the treaty of Bucharest, in 1812, and that of Adrianople, in 1829, the commercial use of this stream was to pertain in common to the subjects of Turkey and of Russia. By the recent treaty of Paris, in 1856, the Danube also came within the application of the rule of the treaty of Vienna, to which Turkey was not an original party. This was the last European stream, the freedom of which was to be gained for commerce. †

While Spain, after the independence of the United States, was mistress of the lower waters of the Mississippi, she was disposed to claim exclusive control over the navigation near the gulf. But by the treaty of San

Mississippi.

* Comp. Wheaton's Hist. 282-284, 552; Wheaton's El. II. 4, § 15.

Five articles of the treaty are concerned with the navigation of the Danube, articles 15-19. Art. 15 declares the freedom of the stream, according to the Vienna act, as a part of the public law of Europe for ever, and prohibits tolls on vessels. and duty on goods, levied on the simple account of the navigation. Art. 16 appoints a commission of delegates from the five great powers with Sardinia and Turkey, to clear out the mouths of the Danube; and, in order to defray the expenses of such improvements, fixed duties, equal in amount for all nations, may be levied. This commission, by article 18, is to finish its work in two years, and then shall be pronounced to be dissolved. Meanwhile, a permanent commission, by article 17, is to be appointed, consisting of delegates of Austria, Bavaria, Turkey and Wurtemberg, to which a commission from the three Danubian principalities is to be joined, who shall draw up rules of navigation and fluvial police, remove remaining obstacles, cause works necessary for the navigation to be executed along the whole course of the river, and when the first mentioned commission shall be dissolved, shall see that the mouths of the river are kept in good order. Art. 19 allows each of the contracting powers at all times to station two light vessels at the mouth of the Danube, for the purpose of assuring the execution of regulations settled by common conFor the act of navigation of the Danube, growing out of Art. 17, above mentioned, see Murhard Nouv. Rec. xvi. 2, 75.

Bent.

Lorenzo el Real, in 1795, the use of the stream and liberty to deposit goods at and export them from New Orleans was granted to citizens of the United States. Before this the question of the rights of the parties had been agitated between them. The United States had contended that there is a natural right belonging to the inhabitants on the upper waters of a stream, under whatever political society they might be found, to descend by it to the ocean. It was acknowledged, on the part of the United States, that this was, at the most, an imperfect right, and yet the right was claimed to be as real as any other, however well-defined, so that its refusal would constitute an injury, for which satisfaction might be demanded. There seems to be a weakness in this argument, for by admitting the right to be an imperfect one, the claim of injury for not complying with it was cut off. In 1803, Louisiana, which had been ceded by Spain to France in 1800, was purchased of the latter by the United States, which thus had the territorial jurisdiction over all the course of the river.*

St. Lawrence.

The St. Lawrence, after separating for a great distance the British possessions from those of the American Union, traverses British territory to the sea. The government of Great Britain, for a long time, steadily refused to concede the right of using the lower stream for the purposes of navigation, and the same diplomatic controversy was carried on, as in the case of the Mississippi, between the right according to the strict law of nations, and the claim on the principles of natural justice. Meanwhile, canals and railroads having bound the western part of the Union to the Atlantic seaboard, and New York having become a financial centre even for the Canadas, the importance of the question was greatly lessened. By the reciprocity treaty of June 5, 1854, the navigation of the river, as well as of the canals in Canada, was at length thrown open to the United States, on the same conditions which are imposed on the subjects of Great Britain. This privilege may be revoked by the latter party upon due notice. On their part the United States granted to British subjects the free naviga tion of Lake Michigan.

Comp. Wheaton's Hist. p. 506–511.

of rivers.

The vast system of streams which find their way to the sea La Plata system by means of the La Plata is open for navigation, not only to the inhabitants of the banks, but also in a degree to strangers. The Argentine confederation and Buenos Ayres opened their waters in 1853. In the same year Bolivia, whose territory is on the head waters, made a number of places on the banks of its rivers free ports. Brazil had done the same, and several years ago bound Paraguay by a treaty to the same policy; but the government of this latter country closed navigation above the capital, Assuncion, to foreigners, -allowing the use of the waters only to Brazil and the Argentine republic, and below, by police regulations, sought to throw the trade principally into the hands of one nation. A decree of the Emperor of Brazil, dated Dec. 7, 1866, opens the Amazon to the frontier of Brazil to the merchant ships of all nations from and after Sept. 7, 1867. Its tributaries, the Tapajos, the Madeira and the Rio Negro, are also opened, but not through their course within the empire. "The navigation of the affluents of the Amazon in the part in which only one of the banks belongs to Brazil is depending on a previous agreement with the other river states, as to the respective limits and police and fiscal regulations." Conventions of Brazil with Venezuela and Peru concede reciprocally navigation on the Amazon and its tributaries. (Comp. Dipl. Corresp. of the U. S. for 1867-1868, II. 256.)

The Amazon.

Such have been the advances in the freedom of navigation during the last forty years. There is now scarcely a river in the Christian portions of the world, the dwellers on whose upper waters have not the right of free communication, by God's channels, with the rest of mankind. Whether the motive which brought this about has been self-interest or sense of justice, an end approved alike by justice and benevolence has been reached, and the world cannot fail to be the gainer.

CHAPTER III.

RIGHT OR CLAIM OF INTERCOURSE.-RELATIONS OF FOREIGNERS WITHIN

A TERRITORY OF A STATE.

$ 59.

of states, how far a

We have already come to the conclusion that sovereignty in the strictest sense authorizes a nation to decide Intercourse upon what terms it will have intercourse with right.' foreigners, and even to shut out all mankind from its borders. (§ 25.) If a protective tariff, or the prohibition of certain articles is no violation of rights, it is hard to say how far one state may not go in refusing to have commerce with another. If foreigners may be placed under surveillance, or may have various rights of citizens refused to them, why may they not be excluded from the territory? If it be said that the destination of separate states, as of separate families, is to be helpful to one another, that entire isolation is impossible, still the amount of intercourse must be left to the judgment of the party interested; and if a state, judging incorrectly, strives to live within itself as much as possible, is it to be forced to change its policy, any more than to modify its protective tariff?

And yet some kind of intercourse of neighboring states is so natural, that it must have been coeval with their foundation, and with the origin of law; it is so necessary, that to decline it, involves often extreme inhumanity; it is so essential to the progress of mankind, that unjust wars have been blessings when they opened nations to one another. There could, of course, be no international law without it. The following maxims relating to the so-called right, are, in substance, laid down by Heffter. (§ 33.)