nelles, are considered as shut against the ships of war of all nations. To this proposition it was replied, on the part of the British government, that its opinion respecting the navigation of these Straits by the ships of war of foreign nations rested upon a general and fundamental principle of international law. Every State is considered as having territorial jurisdiction over the sea which washes its shores, as far as three miles from low-water mark; and, consequently, any strait which is bounded on both sides by the territory of the same sovereign, and which is not more than six miles wide, lies within the territorial jurisdiction of that sovereign. But the Bosphorus and Dardanelles are bounded on both sides by the territory of the Sultan, and are in most parts less than six miles wide; consequently his territorial jurisdiction extends over both those Straits, and he has a right to exclude all foreign ships of war from those Straits, if he should think proper so to do. By the Treaty of 1809, Great Britain acknowledged this right on the part of the Sultan, and promised to acquiesce in the enforcement of it; and it was but just that Russia should take the same engagement. The British government was of opinion, that the exclusion of all foreign ships of war from the two Straits would be more conducive to the maintenance of peace, than an understanding that the Strait in question should be a general thoroughfare, open, at all times, to ships of war of all countries; but whilst it was willing to acknowledge by treaty, as a general principle and as a standing rule, that the two Straits should be closed for all ships of war, it was of opinion, that if, for a particular emergency, one of those Straits should be open for one party, the other ought, at the same time, to be open for other parties, in order that there should be the same parity between the condition of the two Straits, when open and shut; and, therefore, the British government would expect that, in that part of the proposed Convention which should allot to each power its appropriate share of the measures of execution, it should be stipulated, that if it should become necessary for a Russian force to enter the Bosphorus, a British force should, at the same time, enter the Dardanelles.

It was accordingly declared, in the 4th article of the Convention, that the coöperation destined to place the Straits of the Dardanelles and the Bosphorus and the Ottoman capital under the temporary safeguard of the contracting parties, against all

aggression of Mehemet Ali, should be considered only as a measure of exception, adopted at the express request of the Sultan, and solely for his defence, in the single case above mentioned; but it was agreed that such measure should not derogate, in any degree, from the ancient rule of the Ottoman Empire, in virtue of which it had, at all times, been prohibited for ships of war of foreign powers to enter those Straits. And the Sultan, on the one hand, declared that, excepting the contingency above mentioned, it was his firm resolution to maintain, in future, this principle invariably established as the ancient rule of his Empire, and, so long as the Porte should be at peace, to admit no foreign ship of war into these Straits; on the other hand, the four powers engaged to respect this determination, and to conform to the above-mentioned principle.

This rule, and the engagement to respect it, as we have already seen, were subsequently incorporated into the Treaty of the 13th July, 1841, between the five great European powers and the Ottoman Porte; and as the right of the private merchant vessels of all nations, in amity with the Porte, to navigate the interior waters of the Empire, which connect the Mediterranean and Black Seas, was recognized by the Treaty of Adrianople, in 1829, between Russia and the Porte; the two principles - the one excluding foreign ships of war, and the other admitting foreign merchant vessels to navigate those waters may be considered as permanently incorporated into the public law of Europe.1

§ 11. Rivers form

the territory

The territory of the State includes the lakes, seas, ing part of and rivers, entirely inclosed within its limits. The of the State. rivers which flow through the territory also form a part of the domain, from their sources to their mouths, or as far as they flow within the territory, including the bays or estuaries formed by their junction with the sea. Where a navigable river forms the boundary of conterminous States, the middle of the channel, or Thalweg, is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy and long

1 Wheaton, Hist. Law of Nations, pp. 577-583.

undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river.'

passage on

States.

Things of which the use is inexhaustible, such as 12. Right the sea and running water, cannot be so appropriated of innocent as to exclude others from using these elements in any rivers flowing through manner which does not occasion a loss or inconven- different ience to the proprietor. This is what is called an innocent use. Thus we have seen that the jurisdiction possessed by one nation over sounds, straits, and other arms of the sea, leading through its own territory to that of another, or to other seas common to all nations, does not exclude others from the right of innocent passage through these communications. The same principle is applicable to rivers flowing from one State through the territory of another into the sea, or into the territory of a third State. The right of navigating, for commercial purposes, a river which flows through the territories of different States, is common to all the nations inhabiting the different parts of its banks; but this right of innocent passage being what the text-writers call an imperfect right, its exercise is necessarily modified by the safety and convenience of the State affected by it, and can only be effectually secured by mutual convention regulating the mode of its exercise.2

§ 13. Inci

dental right

to use the

rivers.

It seems that this right draws after it the incidental right of using all the means which are necessary to the secure enjoyment of the principal right itself. Thus the banks of the Roman law, which considered navigable rivers as public or common property, declared that the right to the use of the shores was incident to that of the water; and that the right to navigate a river involved the right to moor vessels to its banks, to lade and unlade cargoes, &c. The public jurists apply this

'Vattel, Droits des Gens, liv. i. ch. 22, § 266. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. ii. ch. 1, § 39. Heffter, das Europäische Völkerrecht, §§ 66-77.

2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, §§ 12–14; cap. 3, §§ 7-12. Vattel, Droit des Gens, liv. ii. ch. 9, §§ 126-130; ch. 10, §§ 132-134. Puffendorf, de Jur. Naturæ et Gentium, lib. iii. cap. 3, §§ 3-6.

principle of the Roman civil law to the same case between nations, and infer the right to use the adjacent land for these purposes, as means necessary to the attainment of the end for which the free navigation of the water is permitted.1

§14. These rights imper

The incidental right, like the principal right itself, is Fect in their imperfect in its nature, and the mutual convenience of both parties must be consulted in its exercise.

nature.

15. Modification of

Those who are interested in the enjoyment of these these rights rights may renounce them entirely, or consent to modify by compact. them in such manner as mutual convenience and policy may dictate. A remarkable instance of such a renunciation is found in the treaty of Westphalia, 1648, confirmed by subsequent treaties, by which the navigation of the river Scheldt was closed to the Belgic provinces, in favor of the Dutch. The forcible opening of this navigation by the French on the occupation of Belgium by the arms of the French Republic, in 1792, in violation of these treaties, was one of the principal ostensible causes of the war between France on one side, and Great Britain and Holland on the other. By the treaties of Vienna, the Belgic provinces were united to Holland under the same sovereign, and the navigation of the Scheldt was placed on the same footing of freedom with that of the Rhine and other great European rivers. And by the treaty of 1831, for the separation of Holland from Belgium, the free navigation of the Scheldt was, in like manner, secured, subject to certain duties, to be collected by the Dutch government.2

§ 16. Treaties of

Vienna re

great Euro

By the treaty of Vienna, in 1815, the commercial navigation of rivers, which separate different States, or specting the flow through their respective territories, was declared to pean rivers. be entirely free in their whole course, from the point where each river becomes navigable to its mouth; provided that the regulations relating to the police of the navigation should be

1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, § 15. Puffendorf, de Jur. Naturæ et Gentium, lib. iii. cap. 3, § 8. Vattel, Droit des Gens, liv. ii. ch. 9, § 129. 2 Wheaton, Hist. Law of Nations, pp. 282-284, 552.

observed, which regulations were to be uniform, and as favorable as possible to the commerce of all nations.'

By the Annexe xvi. to the final act of the Congress of Vienna, the free navigation of the Rhine is confirmed " in its whole course, from the point where it becomes navigable to the sea, ascending or descending;" and detailed regulations are provided respecting the navigation of that river, and the Neckar, the Mayn, the Moselle, the Meuse, and the Scheldt, which are declared in like manner to be free from the point where each of these rivers becomes navigable to its mouth. Similar regulations respecting the free navigation of the Elbe were established among the powers interested in the commerce of that river, by an act signed at Dresden the 12th December, 1821. And the stipulations between the different powers interested in the free navigation of the Vistula and other rivers of ancient Poland, contained in the treaty of the 3d May, 1815, between Austria and Russia, and of the same date between Russia and Prussia, to which last Austria subsequently acceded, are confirmed by the final act of the Congress of Vienna. The same treaty also extends the general principles adopted by the Congress relating to the navigation of rivers to that of the Po.2

gation of the

The interpretation of the above stipulations respecting $17. Navithe free navigation of the Rhine, gave rise to a contro- Rhine. versy between the kingdom of the Netherlands and the other States interested in the commerce of that river. The Dutch government claimed the exclusive right of regulating and imposing duties upon the trade, within its own territory, at the places where the different branches into which the Rhine divides itself

fall into the sea. The expression in the treaties of Paris and Vienna "jusqu'à la mer," to the sea, was said to be different in its import from the term "dans la mer," into the sea: and, besides, it was added, if the upper States insist so strictly upon the terms of the treaties, they must be contented with the course of the proper Rhine itself. The mass of waters brought down by

1 Wheaton's Hist. Law of Nations, pp. 498-501.

2 Mayer, Corpus Juris Germanici, tom. ii. pp. 224-239, 298. Acte Final, art. 14, 118, 96.