may or may not be incorporated ultimately within the law of nations, necessitated by the changed conditions of maritime warfare, it is evident that the absolutely unrestricted use of the seas, at all times, remains to be established. The partial restrictions which still endure in time of peace, exerting a negligible limitation on the freedom of the seas, are but a slight handicap to the pursuit and extension of maritime enterprise. The onerous restrictions occur during war.

The usage of the sea is, in principle, free to all maritime nations throughout the world, subject only to such derogations as arise from the necessary respect to the equal rights of others, or those which are recognized by reason of long-established usage, or the obligations of treaties or international law. The limitations upon the freedom of navigation, endured by neutrals during war, are defensible only by general usage or by virtue of specific treaty stipulations. Though a belligerent may secure command of the sea there is no assumption, as formerly, of the complete ownership; the sovereignty of the seas. Such pretensions to dominion, maintained through an extended period of futile contest, terminated in the universal recognition of the freedom of the seas at the beginning of the nineteenth century. The appreciation by all nations of the incalculable benefit to be secured by the destruction of the anachronistic pretensions which had endured for three centuries, engendered an energetic co-operation among the principal European maritime nations to extend still further the opportunity for commercial intercourse with all the world through the establishment of a similar freedom of navigation, for commercial purposes, upon all the navigable, inland waterways, traversing or separating several states; a liberty of commercial navigation, in peace, which approximates the freedom of the seas, and which may escape the restrictions imposed by belligerent seapower, because of the concurrent rights or obligations of neutrality appertaining to the riverain states.

CHAPTER VIII

THE FREEDOM OF NAVIGATION ON INLAND WATERWAYS

Since the freedom of commercial navigation on international, inland waterways has been evolved from the fundamental principle which assures the common benefit of the high seas to all maritime nations without the necessity of preliminary treaty, it might appear that the declaration of a Congress of Nations, defining explicitly the conditions warranting the international use of inland waterways, would suffice for the immediate establishment of the right on all inland waters susceptible of internationalization. Certain fundamental differences in the character of the respective rights forbid such procedure.

The freedom of navigation on the high seas arises from the recognized inability of any nation to acquire property beyond the waters of the marginal sea, with the result that claims to sovereignty are untenable. The freedom of navigation on inland waters exists by virtue of the voluntary modification by the riverain states of the fullest enjoyment of their jurisdictional rights, undeniably appertaining to the exercise of sovereignty throughout the national domain. From the moment a foreign vessel enters the territorial waters serious problems arise, problems concerned with the public safety, health, and finance of the nation. The peculiar conditions surrounding the commercial navigation by foreign vessels of a particular inland waterway necessitate appropriate recognition and adequate protection. As a necessary preliminary, therefore, the interests and security of the riverain states must be vouchsafed by the execution of treaties or other appropriate instruments, sanctioned by all foreign states which seek to engage in such inland transportation, save in the exceptional instances when the

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participation by foreign vessels is provided for by the municipal legislation of the riverain states. All rights of property over such inland waters are retained by the riverain states, as are compatible with the stipulated enjoyment of peaceful commercial navigation by foreign vessels.

Obligations imposed upon the riverain states in obedience to the principles of international law must be scrupulously observed and this obedience may accord commercial opportunities to foreign vessels upon inland waterways, impossible to secure on the high seas. In the present war between the Entente and the Central Powers, the dominant sea-power of Great Britain has driven enemy shipping from the high seas, yet on the international waterways of China, Teutonic commercial navigation, protected by the neutrality of the Chinese, has enjoyed extensive development since the outbreak of the war. Wherever the riverain states remain neutral, the enjoyment of inland, commercial navigation by vessels of a foreign power engaged in war cannot be interrupted, despite the superior sea-power of the enemy.

Objections are sometimes raised to the application of the principle of freedom of navigation on inland waterways because of certain difficulties encountered in properly safeguarding the interests of the territorial sovereign. Opposition, based on similar grounds, would exclude foreign merchant vessels from sailing through the marginal sea; yet this right of innocent passage is clearly recognized.

Restrictions in Former Periods.- Until the establishment of the right of navigation on European arterial waterways through the unequivocal declaration of the Congress of Nations at Vienna, the use of inland waters, even when restricted to riverains exclusively, suffered burdensome limitations, varying in intensity with the power of the local sovereignty to compel observance. The situation during feudal times became so unendurable that extended commercial navigation virtually ceased. In this period, the rivers passed out of the public domain and came into the exclusive jurisdiction of the king's

vassals, whose single purpose was to exact the maximum profit through the exploitation of commerce, whether borne upon the highways or on the navigable rivers, particularly throughout Central Europe. Rivers assumed a private character upon the imposition of this prohibition of general enjoyment, and navigation was burdened with excessive tolls, rights of passage, forced anchorages, seriously restricting the transit both of travellers and of merchandise. Confronted with the abuses which hindered the free navigation of waterways within the domain, the imperial or royal power appeared helpless to afford adequate relief.

Throughout the Middle Ages the Rhine constituted the principal commercial route between the Orient and the Occident, two main routes diverging at the head of navigation, one continuing southward over the Alps to the port of Venice, the other turning eastward to the navigable Danube leading to Constantinople. Along the highway of the Rhine important commercial centers, notably Strassbourg, Frankfort, Mainz, and Cologne, enjoyed exceptional prosperity, which in some instances was derived from the heavy tolls exacted from all shipping under the claim of forced anchorages or trans-shipments. With the discovery of the New World and of the all-sea route to India; fundamental changes in the commercial routes which destroyed the pre-eminence of Venice and Genoa and established the center of maritime enterprise at London, Antwerp, and Amsterdam, thenceforth; the Rhine retained its valuable commerce. In the latter part of the sixteenth century, however, exactions levied on the Rhine became so serious as to threaten communication with the sea. Having suffered heavy losses during the progress of the war with Spain, the Dutch sought to recoup by imposing costly license charges on navigation with the Rhine ports, which had been formerly unrestricted during Spanish dominion. The terms of the Peace of Westphalia (1648), consummated the ruin of commercial navigation along the Rhine by permitting the Dutch, who were seeking commercial monopoly, to levy onerous tolls on all cargoes, and by

sanctioning the Dutch claim to prohibit the passage of certain important staples, as salt and sugar, if loaded on other than Dutch vessels. (Clapp, "The Navigable Rhine," pg. 4.)

The navigation of the Scheldt was similarly restricted. Article XIV of the Treaty of Westphalia, agreed upon by France, Sweden, and the Emperor of Germany, while recognizing the independence of the United Provinces, further provided for the closure of the Scheldt to the advantage of the Dutch. Forthwith communication with the Spanish Netherlands, by way of the Scheldt, was forbidden to all vessels except those under Dutch registry. The cession of the Spanish Netherlands to Austria by the Treaty of Utrecht (1713) did not secure a relaxation of this burdensome restriction. The United Provinces contended that the channels through Dutch territory which vessels necessarily followed in navigating the Scheldt to and from the sea were maintained only by constant industry and heavy cost, and that consequently the Scheldt channel, in this portion of its course, should be considered an artificial communication, rather than a natural waterway.

The petty princes of the Holy Roman Empire, who had dominion on the principal commercial waterways, seized the opportunity afforded by the weakened control of their Emperor, resulting from the Peace of Westphalia, to secure enhanced revenues by the imposition of local traffic tolls. The tolls levied on the Rhine navigation proved particularly remunerative since this river was the chief commercial highway between the North Sea, Central Europe, and the Adriatic. Formerly the cargoes of rich merchandise had been carried from the great entrepot of Venice, but with the development of the ports on the North Sea the direction of the commerce was reversed.

In the eighteenth century, the charges levied by the various toll stations for passage between Bingen and Coblenz amounted to one-third of the cargo's valuation. Opposition appeared as futile as it was insistent. Predominant among the jurists who early recognized the unreasonable character of the arbitrary