to everybody, but distinguished between rivers and the sea, the former being classed among res publicae, and the latter among res communes. (Justinian, Iustitutes, lib. 2, tit. 1, § 1-2; Phillimore, On Int. Law, vol. 1, §§ 155–6; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 2, §§ 12-14; Vattel, Droit des Gens, liv. 2, ch. 9, §§ 126-130; ch. 10, §§ 132-134; Puffendorf, de Jur. Nat. et Gent., lib. 3, cap. 3, §§ 3-6; Polson, Law of Nations, sec. 5; Wildman, Int. Law, vol. 1, p. 76; Ortolan, Domaine International, § 44; Bowyer, Universal Public Law, ch. 28; Hefter, Droit International, § 77; Riquelmne, Derecho Pub. Int., lib. 1, tit. 1, cap. 4; De Cussy, Droit Maritime, liv. 1, tit. 2, § 57.)

§ 27. The Roman law also declares the right to use the shores to be an incident to that of the water, and the right to navigate a river carries with it the right to moor vessels to its banks, to lade and unlade cargoes, etc. Publicists have applied this principle of the Roman civil law to the same case between nations, and infer the right to use the adjacent land for the purposes, as means necessary to the attainment of the end, for which the free navigation of the water is permitted. The principal right would seem to draw after it the incidental right of using all the means which are necessary to secure its proper enjoyment. But this incidental right, like the principal right itself, is imperfect in its nature, and the mutual convenience of both parties must be consulted in its exercise. (Wheaton, Elem. Int. Law, pt. 2, ch. 4, § 13; Phillimore, On Int. Law, vol. 1, §§ 157-161; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 2, § 15; Puffendorf, de Jur. Naturae et Gent, lib. 3, cap. 3, § 8; Vattel, Droit des Gens, liv. 2, ch. 9, § 129; Justinian, Institutes, lib. 2, tit. 1, §§ 1-5; Bowyer, Uuiversal Public Law, ch. 28.)

§ 28. Such right of innocent passage, though an imperfect right, and requiring mutual conventions regulating the mode of its exercise, is, nevertheless, a real, subsisting right, founded upon the law of nature, and recognized by the most approved writers on public law. It may also be added, that it has been recognized by the general consent of nations, and must now be regarded as an established principle of international law. (Wheaton, Elem. Int. Law, pt. 2, ch. 4, §§ 12–14; Wildman, Int. Law, vol. 1, p. 76; Phillimore, On Int. Law,

vol. 1, §§ 155-169; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 3, §§ 7-12; Puffendorf, de Jur. Nat. et Gent., lib. 3, cap. 3, §§ 5, et seq.; Bowyer, Universal Public Law, ch. 28; Heffter, Droit International, §§ 77-80; Bello, Derecho Internacional, pt. 1, cap. 3, § 5; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 4; De Cussy, Droit Maritime, liv. 1, tit. 2, § 57.)

§ 29. But those interested in the enjoyment of this principal right, and its incidents, may renounce them entirely, or consent to modify them in such a manner as mutual convenience and policy may dictate. Thus, by the treaty of Westphalia, the navigation of the river Scheldt was closed to the Belgic provinces, in favor of the Dutch; and by the treaties of Vienna, and subsequent conventions, the ripuarian powers, on the banks of the great rivers of Europe, agreed to certain detailed regulations respecting their navigation through the territory of the states in which such rivers débouched into the ocean. But this agreement of the ripuarian states to regulations of police and fixed toll duties on vessels and merchandise passing through the territory of another state, to and from the sea, or even an entire surrender or renouncement of the right, cannot be adduced as an agument against the existence of the right itself. On the contrary, if no such right existed, there would be no necessity for its regulation, and its renouncement would be an act of supererogation. (Wheaton, Elem. Int Law, pt. 2, ch. 4, § 15; Wheaton, Hist. Law of Nations, pp. 282-4, 552; Phillimore, On Int. Law, vol. 1, §§ 157-160; Polson, Law of Nations, sec. 5; Heffter, Droit International, §§ 77–80.)

§ 30. The navigation of the Rhine has often afforded matters of difficulty and dispute between the states which border on it, or through whose territories it flows. By Annexe sixteen to the final act of the congress of Vienna in 1815, the free navigation of this river was confirmed "in its whole course, from the point where it becomes navigable to the sea, ascending and descending." The interpretation of these stipulations gave rise to a controversy between the kingdom of the Netherlands and other states interested in the navigation of that river, from the fact that the Rhine, properly so called, does not empty into the sea, but loses its waters among the sandy downs at Kulwick, the navigation being

carried on through the mouths or arms of the sea called the Leck, the Yssel, and the Waal and Meuse. After a long and tedious negotiation, the question was finally settled by the convention of Mayence in 1841, providing for the free navigation and commerce of the ripuarian states "into the sea," with minute regulations of police, and fixed toll duties on vessels and merchandise paying to and from the sea, and to the ports of the upper ripuarian states on the Rhine. (Wheaton, Elem. Int. Law, pt. 2, ch. 4, §§ 16, 17; Wheaton, Hist. Int. Law, pp. 498-501; Martens, Nouveau Recueil, tome 9, p. 252; Phillimore, On Int. Law, vol. 1, §§ 163-168; Ortolan, Domaine International, § 44.)

§ 31. The same principle was extended in 1815, by the congress of Vienna, to the navigation of the Neckar, the Mayn, the Moselle, the Meuse, and the Scheldt; and similar provisions were made for the free navigation of the Elbe in 1821, and, at other periods, for the Po, the Danube, the Vistula, and other rivers of ancient Poland. The treaty of Westphalia, 1648, by which the independence of the United Provinces was acknowledged by Spain, contained a stipulation by which the river Scheldt was to continue shut on the side of the former, who were proprietors of both banks, toward the sea. It was also stipulated, that the inhabitants of the United Provinces should abstain from frequenting the places occupied by Spain in the East Indies. Another motive alleged by the Dutch for this stipulation, closing the navigation of the lower Scheldt, was, that the whole course of the two branches of this river, which passed within the dominions of Holland, was entirely artificial; that it owed its existence to the skill and labor of Dutchmen; that its banks had been erected and maintained by them at great expense. The emperor Joseph II., in 1781, attempted to open the navigation of this river, and for this purpose, in 1784, brought forward several antiquated claims against the republic. A compromise was effected by the treaty of Fontainbleau, in 1785, by which it was agreed that the river Scheldt, from Saftingen to the sea, should continue to be shut on the side of the States General, as well as the canals of Sas, Swin, and the other mouths of the sea there terminating, conformably to the treaty of Munster. In return for these conces

sions, the Dutch accorded several of the emperor's demands, and agreed to pay an indemnity of ten millions of florins. The claim of Holland in this discussion was defended by Mirabeau, on the ground of positive conventional law. He was not absolutely opposed to the free navigation of the Scheldt, but, on the contrary, endeavored to show how it might be opened without danger to Holland and Europe, by the independence of Belgium, which would form a neutral barrier to the United Provinces. The free navigation of this river was again seriously discussed in 1792-3, in the diplomatic correspondence between Holland, Belgium, England and France; and the question finally settled, as before stated, by the congress of Vienna, in 1815, on the basis of the celebrated memoir presented by Baron Wilhelm Von Humboldt. (Wheaton, Hist. Law of Nations, pp. 282, 361, 498; Wheaton, Elem. Int. Law, pt. 2, ch. 4, §§ 16, 17; Martens, Nouveau Recueil, tome 9, p. 361; Phillimore, On Int. Law, vol. 1, §§ 164-168; Martens, Rec. de Traités, tome 30, p. 209; Mayer, Corpus Juris. Germ., tome 2, pp. 224-239, 298; Ortolan Domain International, §44; De Cussy, Droit Maritime, liv. 1, tit 2, § 57.)

§ 32. By the treaty of 1763, between France, Spain, and Great Britain, the boundary between the French and British possessions in North America was the middle of the river Mississippi, from its source to the Iberville, and thence, through that river and lakes Maurepas and Pontchartrain, to the sea. The right of freely navigating the Mississippi, from its source to the sea, was, at the same time, secured to the subjects of Great Britain. Both Louisiana and Florida were afterwards ceded to Spain by France and Great Britain. By the independence of the United States, its citizens had acquired the same rights, with respect to the navigation of the Mississippi, as had belonged to the subjects of Great Britain. But Spain, having become possessed of both banks of that river, from its mouth to a considerable distance above, claimed its exclusive navigation below the southern boundary of the United States. This claim was contested by the United States, as contrary to the treaty of 1763, as well as in violation of the law of nature and of nations. The dispute was terminated by the treaty of San Lorenzo el Real, in 1795,

by which the free navigation of the Mississippi was secured to the citizens of the United States, in its whole breadth, from its source to the ocean. By the subsequent acquisition of Louisiana and Florida by the United States, the whole river, from its source to the Gulf of Mexico, was included within their territory, and, consequently, to them belonged the exclusive right of its navigation. (Wheaton, Elem. Int. Law, pt. 2, ch. 4, § 18; Phillimore, On Int. Law, vol. 1, § 169; Wheaton, Hist. Law of Nations, pp. 506, et seq.; Waite, State Papers, vol. 10, pp. 135-140; De Cussy, Droit Maritime, liv. 1, tit. 2, § 57; liv. 2, ch. 28.)

§ 33. The relative position of the United States and Great Britain, says Mr. Wheaton, in respect to the navigation of the great northern lakes and the river St. Lawrence, appears to be similar to that of the United States and Spain, previously to the cession of Louisiana and Florida, in respect to the Mississippi; the United States being in possession of the southern shores of the lakes and the river St. Lawrence to the point where their northern boundary strikes that river, and Great Britain of the northern shores of the lakes and of the river to the same point, and of both banks of the river, from the latitude forty-five degrees north to the sea. The United States claimed the right to navigate the St. Lawrence, to and from the sea, as one to which they were entitled by the laws of nations. In addition to the arguments used in support of their right, in 1795, to the free navigation of the Mississippi, when Spain possessed both banks of that river near its mouth, the United States fortified their claim by the consideration that this navigation was before the war of the American revolution, the common property of all the British subjects inhabiting this continent, having been acquired from France by the united exertions of the mother country and the colonies in the war of 1756; and that their claim to the free navigation of the St. Lawrence was precisely the same nature with that of Great Britain to the navigation of the Mississippi, recognized in 1763, when the mouth and lower shores of that river were held by another power.

The arguments of the British government against this claim were by no means satisfactory to the United States,