Part II. Europe. In the treaties concluded at the Congress of Vienna, it had been stipulated that the navigation of the Rhine, the Neckar, the Mayn, the Moselle, the Maese, and the Scheldt, should be free to all nations. These stipulations, to which Great Britain was a party, might be considered as an indication of the present judgment of Europe upon the general question. The importance of the present claim might be estimated by the fact, that the inhabitants of at least eight States of the American Union, besides the territory of Michigan, had an immediate interest in it, besides the prospective interests of other parts connected with this river and the inland seas through which it communicates with the ocean. The right of this great and growing population to the use of this its only natural outlet to the ocean, was supported by the same principles and authorities which had been urged by Mr. Jefferson in the negotiation with Spain respecting the navigation of the river Mississippi. The present claim was also fortified 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. The claim of the United States to the free navigation of the St. Lawrence was of the same nature with that of Great Britain to the navigation of the Mississippi, as recognized by the 7th article of the Treaty of Paris, 1763, when the mouth and lower shores of that river were held by another power. The claim, whilst necessary to the United States, was not injurious to Great Britain, nor could it violate any of her just rights (¿).

On the part of the British government, the claim was considered as involving the question whether a perfect right to the free navigation of the river St. Lawrence could be maintained according to the principles and practice of the law of nations.

(i) American Paper on the Naviga- Documents, Session 1827-1828, No. 43, tion of the St. Lawrence. Congress p. 34.

The liberty of passage to be enjoyed by one nation Chap. IV. through the dominions of another was treated by the most eminent writers on public law as a qualified, occasional exception to the paramount rights of property. They made no distinction between the right of passage by a river, flowing from the possessions of one nation through those of another, to the ocean, and the same right to be enjoyed by means of any highway, whether of land or water, generally accessible to the inhabitants of the earth. The right of passage, then, must hold good for other purposes, besides those of trade,-for objects of war as well as for objects of peace, for all nations, no less than for any nation in particular, and be attached to artificial as well as to natural highways. The principle could not, therefore, be insisted on by the American government, unless it was prepared to apply the same principle by reciprocity, in favour of British subjects, to the navigation of the Mississippi and the Hudson, access to which from Canada might be obtained by a few miles of land-carriage, or by the artificial communications created by the canals of New York and Ohio. Hence the necessity which has been felt by the writers on public law, of controlling the operation of a principle so extensive and dangerous, by restricting the right of transit to purposes of innocent utility, to be exclusively determined by the local sovereign. Hence the right in question is termed by them an imperfect right. But there was nothing in these writers, or in the stipulations of the Treaties of Vienna, respecting the navigation of the great rivers of Germany, to countenance the American doctrine of an absolute natural right. These stipulations were the result of mutual consent, founded on considerations of mutual interest growing out of the relative situation of the different States concerned in this navigation. The same observation would apply to the various conventional regulations which had been, at different periods, applied to the navigation of the river Mississippi. As to any supposed right derived from the simultaneous acquisition of the St. Lawrence by the British and

American people, it could not be allowed to have survived the treaty of 1783, by which the independence of the United States was acknowledged, and a partition of the British dominions in North America was made between the new government and that of the mother country (k).

To this argument it was replied, on the part of the United States, that, if the St. Lawrence were regarded as a strait connecting navigable seas, as it ought properly to be, there would be less controversy. The principle on which the right to navigate straits depends, is, that they are accessorial to those seas which they unite, and the right of navigating which is not exclusive, but common to all nations; the right to navigate the seas drawing after it that of passing the straits. The United States and Great Britain have between them the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from one to the other through the natural link. Was it then reasonable or just that one of the two coproprietors of the lakes should altogether exclude his associate from the use of a common bounty of nature, necessary to the full enjoyment of them? The distinction between the right of passage, claimed by one nation through the territories of another, on land, and that on navigable water, though not always clearly marked by the writers on public law, has a manifest existence in the nature of things. In the former case the passage can hardly ever take place, especially if it be of numerous bodies, without some detriment or inconvenience to the State whose territory is traversed. But in the case of a passage on water no such injury is sustained. The American government did not mean to contend for any principle, the benefit of which, in analogous circumstances, it would deny to Great Britain. If, therefore,

(k) British Paper on the Navigation of the St. Lawrence. No. 43, p. 41.

Session 1827-28,

in the further progress of discovery, a connection should Chap. IV. be developed between the river Mississippi and Upper Canada, similar to that which exists between the United States and the St. Lawrence, the American government would be always ready to apply, in respect to the Mississippi, the same principles it contended for in respect to the St. Lawrence. But the case of rivers, which rise and debouch altogether within the limits of the same nation, ought not to be confounded with those which, having their sources and navigable portions of their streams in States above, finally discharge themselves within the limits of other States below. In the former case, the question as to opening the navigation to other nations depended upon the same considerations which might influence the regulation of other commercial intercourse with foreign States, and was to be exclusively determined by the local sovereign. But in respect to the latter, the free navigation of the river was a natural right in the upper inhabitants, of which they could not be entirely deprived by the arbitrary caprice of the lower State. Nor was the fact of subjecting the use of this right to treaty regulations, as was proposed at Vienna to be done in respect to the navigation of the European rivers, sufficient to prove that the origin of the right was conventional, and not natural. It often happened to be highly convenient, if not sometimes indispensable, to avoid controversies by prescribing certain rules for the enjoyment of a natural right. The law of nature, though sufficiently intelligible in its great outlines and general purposes, does not always reach every minute detail which is called for by the complicated wants and varieties of modern navigation and commerce. Hence the right of navigating the ocean itself, in many instances, principally incident to a state of war, is subjected, by innumerable treaties, to various regulations. These regulations-the transactions of Vienna, and other analogous stipulations should be regarded only as the spontaneous homage of man to the paramount Lawgiver of the universe, by delivering his great works from the

Part II. artificial shackles and selfish contrivances to which they have been arbitrarily and unjustly subjected (1).

§ 205a. Treaty of It is now settled by the Treaty of Washington, 1871, that "The Washington, 1871, as to the navigation of the river St. Lawrence, ascending and descending, from St. Lawrence. the 45th parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall for ever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain, or of the Dominion of Canada, not inconsistent with such privilege of free navigation" (m).

$205b. African rivers.

§ 205c.

International canals.

By the General Act of the Berlin Conference, 1885, the trade of all nations, except in so far as any independent sovereign State may neglect to apply this principle within its territory, is to enjoy complete freedom in the basin of the Congo, its mouth and circumjacent regions, extending to the Indian Ocean and the Zambesi. The signatory parties bind themselves to respect the neutrality of the same free trade zone, so long as the ruling power in any territory within it shall fulfil the duties which neutrality requires; and in case any such power shall be engaged in war, the signatory powers bind themselves to use their good offices to the end that any territory within the free trade zone, belonging to either belligerent, may be placed, in effect, in very much the same position as though it were neutral territory. The navigation of the Congo is to remain free for the merchant ships of all nations equally. The provisions of the Act of Navigation are to remain in force in time of war. Consequently all nations, whether neutral or belligerent, are to be always free, for the purposes of trade, to navigate the Congo and the territorial waters fronting the embouchure of the river, except in so far as concerns the transport of articles intended for a belligerent and, in virtue of the law of nations, regarded as contraband of war. Provisions of a like nature are made in respect of the navigation of the Niger (n).

The scientific progress of the world has added another mode of water communication, viz., by international canals, which has given rise to very important questions in international law. The Suez canal, between the continents of Africa and Asia, has long been an accomplished fact, and a successful commercial speculation; while the project of the Panama Canal, between North and South America, seems at last to have recovered from the catastrophe which overwhelmed M. de Lesseps and his unhappy shareholders, and possesses once more a working chance of being ultimately realised. In the former of these cases the works are the property of a commercial corporation,

(4) Mr. Secretary Clay's letter to Mr. Gallatin, June 19, 1826. 1827-1828, No. 43, p. 18.

Session

(m) Art. xxvi. Treaty of Washington, 1871. See Appendix E.

(n) Hertslet, Map of Africa by Treaty, p. 20.