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)

§ 195. The incidental right, like the principal right These itself, is imperfect in its nature, and the mutual con- rights imperfect in venience 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 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.

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. (b)117

Rhine.

§ 198. The interpretation of the above stipulations re- Navigaspecting the free navigation of the Rhine, gave rise to a tion of the controversy 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 that river, dividing itself a short distance above Nimiguen, is carried to the sea through three principal channels, the Waal, the Leck, and the Yssel; the first descending by Gorcum, where it changes its name for that of the Meuse; the second approaching the sea at Rotterdam; and the third, taking a northerly course by Zutphen and Deventer, empties itself into the Zuyderzee. None of these channels, however, is called the Rhine; that name is preserved to a small stream which leaves the Leck at Wyck, takes its course by the learned retreats of Utrecht and Leyden, gradually dispersing and losing its waters among the sandy downs at Kulwyck. The proper Rhine being thus useless for the purposes of navigation, the Leck was substituted for it by common consent of the powers interested in the question; and the government of the Netherlands afterwards consented that the Waal, as being better adapted to the

(b) Mayer, Corpus Juris Germanici, tom. ii. pp. 224-239, 298. Acte Final, art. 96, 114, 118.

[117 The treaty of Paris of 1856 applies the declaration of the freedom of rivers running between or through several States, by the Congress of Vienna, to the Danube, and opens it to the trade of all nations, with no duties founded solely on the right to navigate. It makes special provisions respecting police, quarantine, and customs duties, and the removal of physical obstructions to navigation. See also Art. 17 of treaty of 1857. Martens, Nouveau Recueil, xv. 647, 776; xvii. 75, 622, 632.]-D.

purposes of navigation, should be substituted for the Leck. But it was insisted by that government that the Waal terminates at Gorcum, to which the tide ascends, and where, consequently, the Rhine terminates; all that remains of that branch of the river from Gorcum to Helvoetsluys and the mouth of the Meuse is an arm of the sea, inclosed within the territory of the kingdom, and consequently subject to any regulations which its government may think fit to establish.

On the other side, it was contended by the powers interested in the navigation of the river, that the stipulations in the treaty of Paris, in 1814, by which the sovereignty of the House of Orange over Holland was revived, with an accession of territory, and the navigation of the Rhine was, at the same time, declared to be free "from the point where it becomes navigable to the sea," were inseparably connected in the intentions of the allied powers who were parties to the treaty. The intentions thus disclosed were afterwards carried into effect by the Congress of Vienna, which determined the union of Belgium to Holland, and confirmed the freedom of the navigation of the Rhine, as a condition annexed to this augmentation of territory which had been accepted by the government of the Netherlands. The right to the free navigation of the river, it was said, draws after it, by necessary implication, the innocent use of the different waters which unite it with the sea; and the expression "to the sea" was, in this respect, equivalent to the term "into the sea," since the pretension of the Netherlands to levy unlimited duties upon its principal passage into the sea would render wholly useless to other States the privilege of navigating the river within the Dutch territory. (a)

§ 199. After a long and tedious negotiation, this question was finally settled by the convention concluded at Mayence, the 31st of March, 1831, between all the riparian States of the Rhine, by which the navigation of the river was declared free from the point where it becomes navigable into the sea, (bis in die See,) including its two principal outlets or mouths in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel through the first-named watercourse, and by Dordrecht and Helvoetsluys through the latter, with the use of the artificial communication by the canal of Voorne with Helvoetsluys. By the terms (a) Annual Register for 1826, lxviii. 259–363.

of this treaty the government of the Netherlands stipulates, in case the passages by the main sea by Briel or Helvoetsluys should at any time become innavigable, through natural or artificial causes, to indicate other watercourses for the navigation and commerce of the riparian States, equal in convenience to those which may be open to the navigation and commerce of its own subjects. The convention also provides minute regulations of police and fixed toll-duties on vessels and merchandise passing through the Netherlands territory to or from the sea, and also by the different ports of the upper riparian States on the Rhine. (a)

soever.

§ 200. By the treaty of peace concluded at Paris, in Naviga1763, between France, Spain, and Great Britain, the prov- tion of the Mississippi. ince of Canada was ceded to Great Britain by France, and that of Florida to the same power by Spain, and the boundary between the French and British possessions in North America, was ascertained by a line drawn through the middle of the river Mississippi from its source to the Iberville, and from thence through the latter river and the lakes of Maurepas and Pontchartrain to the sea. The right of navigating the Mississippi was at the same time secured to the subjects of Great Britain from its source to the sea, and the passages in and out of its mouth, without being stopped, or visited, or subjected to the payment of any duty whatThe province of Louisiana was soon afterwards ceded by France to Spain; and by the treaty of Paris, 1783, Florida was retroceded to Spain by Great Britain. The independence of the United States was acknowledged, and the right of navigating the Mississippi was secured to the citizens of the United States and the subjects of Great Britain by the separate treaty between these powers. But Spain having become thus possessed of both banks. of the Mississippi at its mouth, and a considerable distance above its mouth, claimed its exclusive navigation below the point where the southern boundary of the United States struck the river. This claim was resisted, and the right to participate in the navigation of the river from its source to the sea was insisted on by the United States, under the treaties of 1763 and 1783, as well as by the law of nature and nations. The dispute was terminated by the treaty of San Lorenzo el Real, in 1795, by the 4th article of which His Catholic Majesty agreed that the navigation of the Mississippi, in

(a) Martens, Nouveau Recueil, tom. ix. p. 252.