to navigate the seas thus connected. The physical power which the State, bordering on both sides the sound or strait, has of appropriating its waters, and of excluding other nations from their use, is here encountered by the moral obstacle arising from the right of other nations to communicate with each other. If the Straits of Gibraltar, for example, were bounded on both sides by the possessions of the same nation, and if they were sufficiently narrow to be commanded by cannon-shot from both shores, this passage would not be the less freely open to all nations; since the navigation, both of the Atlantic Ocean and the Mediterranean Sea, is free to all. Thus it has already been stated that the navigation of the Dardanelles and the Bosphorus, by which the Mediterranean and Black Seas are connected together, is free to all nations, subject to those regulations which are indispensably necessary for the security of the Ottoman Empire. In the negotiations which preceded the signature of the treaty of intervention, of the 15th of July, 1840, it was proposed, on the part of Russia, that an article should be inserted in the treaty, recognizing the permanent rule of the Ottoman Empire; that, whilst that empire is at peace, the Straits, both of the Bosphorus and the Dardanelles, 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 main

272

man, think of the price that

Cook would have to charge for his tours to Egypty Palestine !!!

tenance 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.

§ 191. It was accordingly declared, in the 4th article The Darof the convention, that the co-operation destined to place danelles. 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. (a) 114

Rivers

of the terri

State.

§ 192. The territory of the State includes the lakes, forming part seas, and rivers, entirely inclosed within its limits.115 tory of the The 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 undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire river. (a)

Right of innocent passage on

§ 193. Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as rivers flow- to exclude others from using these elements in any maning through different ner which does not occasion a loss or inconvenience to Ştates. 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

(a) Wheaton's Hist. Law of Nations, 577-583.

[114 See note 111, ante, on the treaty of Paris of 1856.]—D.

[115 Halleck's Intern. Law, 136. Woolsey's Introd. §§ 57, 58. Kent's Intern. Law (Abdy's edit.), i. 108, and note.] - D.

(a) Vattel, Droit des Gens, liv. i. ch. 22, § 266.

des Gens Moderne de l'Europe, liv. ii. ch. 1, § 39. $$ 66-77.

Martens, Précis du Droit

Heffter, Europ. Völker.

State affected by it, and can only be effectually secured by mutual convention regulating the mode of its exercise. (a)

right to use

§ 194. It seems that this right draws after it the inci- Incidental dental right of using all the means which are necessary the banks of to the secure enjoyment of the principal right itself. the rivers. Thus 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 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. (a)

rights imperfect in

§ 195. The incidental right, like the principal right These itself, is imperfect in its nature, and the mutual convenience of both parties must be consulted in its exer- their nature. cise.

tion of these rights by

§ 196. Those who are interested in the enjoyment of Modificathese rights may renounce them entirely, or consent to modify them in such manner as mutual convenience and compact. 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

(a) 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.

(a) 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.

navigation of the Scheldt was, in like manner, secured, subject to certain duties, to be collected by the Dutch government. (a) 116

Treaties of Vienna respecting the great European rivers.

§ 197. By the treaty of Vienna, in 1815, the commercial navigation of rivers which separate different States, or flow through their respective territories, was declared to be entirely free in their whole course, from the point I where each river becomes navigable to its mouth; provided that the regulations relating to the police of the navigation should be observed, which regulations were to be uniform, and as favorable as possible to the commerce of all nations. (a)

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,

(a) Wheaton's Hist. Law of Nations, 282-284, 552.

[116 The Scheldt Dues. By the treaty of May 12, 1863, between Belgium and the Netherlands, the King of the Netherlands renounces the Scheldt dues for 17,141,640 florins to be paid by Belgium. By a protocol of July 15, 1863, the King of the Netherlands makes a declaration to all the powers interested, that the renouncement of these dues applies to all flags; and the King of the Belgians makes a similar declaration on his part; and the representatives of the other powers interested, including the chief commercial nations of Europe, and the United States, make an official note of these declarations. By the Convention between the United States and Belgium of May 20, 1863, and the treaty of July 20, 1863, the United States agrees to pay a portion of the capitalization of the Scheldt dues; provided that the capital sum does not exceed thirty-six millions of francs, of which Belgium shall assume onethird, and that the share of the United States in the residue shall not exceed 2,779,200 francs. The treaty between Belgium and the Netherlands of May 12, 1863, with the protocol of July 15, 1863, and the declarations of Belgium and the Netherlands above referred to, are appended to the treaty between the United States and Belgium of July 20, 1863. The treaty of May 20, 1863, also provides that no tonnage duties shall be levied by Belgium on American vessels navigating the Scheldt, and for a reduction of pilotage and port dues on that river. U. S. Laws, 1865, p. 57.] — D. (a) Wheaton's Hist. Law of Nations, 498–501.