1 See, for example, Westlake, I. 144; Oppenheim, I. 226. But see contra, Bluntachli, Droit International Codifié, 5th ed., § 314.

2 Declares Professor Moore: “It is not doubted that rivers such as the Hudson and the Mississippi, which are navigable only within the territory of one country, are subject to that country’s exclusive control.” (American Diplomacy, pp. 82–83.) See also, Mr. Foster, Secretary of State, to Sir Julian Pauncefote, British Minister, Dec. 31, 1892, U. S. For. Rel., 1892, 335, 337; Moore, Int. L. Dig., I, 626–627.

3 Concerning the navigation of rivers generally, see E. Englehardt, “Eistorie du droit fluvial conventionnel,” Paris: 1889; Communication to the Institute of International Law, Annuaire, IX, 156; A Bergès, “Du regime de navigation des fleuves internationaux,” Toulouse: 1902; Bibliography in Clunet, Tábles Génerale, I, 462–465, 882–883; Schuyler, American Diplomacy, 265–305, 319–366; J. B. Moore, American Diplomacy, 82–86; E. Nys, “Les fleuves internationaux traversant plusieurs territoires;” Rev. D. I. L. C, 2 ser., V, 517; Woolsey, 6th ed., 79–83; Oppenheim, I, 226–229; Westlake, I, 142–159; Dana’s Wheaton, 274–288; Lawrence, 186–189; Calvo, I, 433–465; Bonfils-Fauchille, 4th ed., 288–296; Martens, II, 345–355; Rivier, I, 221–229; Liszt, 3d ed., 216–228; Hall, 5th ed., 131–140.

4 U. S. Treaties in Force, 1904, 290.

5 See letter from the Minister of Spain to Mr. Pickering, Sec. of State, May 6, 1797. Am. State Pap., For. Rel., II, 15.

6 Mr. Jefferson, Secretary of State, in support of the claim of his government, relied first upon Article V of the treaty between Great Britain and France of February 10, 1763, providing for free navigation of the Mississippi by the subjects of those countries; secondly, upon the treaty of peace between the United States and Great Britain of 1782–1783; and finally, upon the “law of nature and nations.” He asserted that the sentiment was written in deep characters on the heart of man that “the ocean is free to all men, and their rivers to all their inhabitants.” Accordingly, he declared that: “When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind.” He said that the writers on the subject were agreed that an innocent passage along a river was the natural right of those inhabiting its borders above; that although this right was regarded as an inherited one, inasmuch as the modification of its exercise depended to a large degree on the convenience of the nation through whose territory foreign vessels passed, it was nevertheless: " still a right as real as any other right, however well defined; and were it to be refused, or to be so shackled by regulations, not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand redress. The right of the upper inhabitants to use this navigation is the counterpart to that of those possessing the shores below, and founded in the same natural relations with the soil and water.” He said also: “We might add, as a fifth sine qua non, that no phrase should be admitted in the treaty which could express or imply that we take the navigation of the Mississippi as a grant from Spain. But, however disagreeable it would be to subscribe to such a sentiment, yet, were the conclusion of a treaty to hang on that single objection, it would be expedient to waive it, and to meet, at a future day, the consequences of any resumption they may pretend to make, rather than at present, those of a separation without coming to any agreement.” (Instructions to Messrs. Carmichael and Short, Commissioners to negotiate a treaty with Spain, March 18, 1792. Am. State Pap., For. Bel., I, 252–257.)

7 Id., I, 547; U. S. Treaty Vol. (1776–1887), 1007.

8 U. S. Treaty Vol. (1776–1887), 380–381.

9 U. S. Treaty Vol. (1776–1887), 395.

10 See correspondence in May, 1797, between Mr. Pickering, Sec. of State, and the Spanish Minister. Am. State Pap., For. Rel., II, 14–15, 16–17.

11 I t had been supposed by the negotiators of the treaty of 1782-1783 with Great Britain, that the source of the Mississippi was in Canada, and that the boundary line should run from the most northwestern point of the Lake in the Woods on a due west course to the Mississippi. As a matter of fact such a line did not intersect that river. (See Moore, Int. L. Dig., I, 625; also Moore, Int. Arbitrations, I, 705-707.)

12 See Am. State Pap., For. Rel., VI, 757-777. An excellent summary of the several arguments in support of the claims advanced by the United States is contained in Moore, Int. L. Dig., I, 631-635.

13 U. S. Treaty Vol. (1776-1887), 448, 451-452. The provisions of Article IV for the navigation of the St. Lawrence and Canadian canals used as a means of communication between the Great Lakes and the Atlantic by citizens and inhabitants of the United States on the same basis as British subjects, contained also the declaration that the British Government retained the right to suspend the privilege on giving due notice thereof, and that in case of such suspension the United States might suspend also the operation of Article III (providing for the free admission of certain articles specified into the British Colonies and into the United States), for such period as the rights of navigation were suspended. Article IV also gave to British subjects the right to navigate Lake Michigan for a term of years. The United States engaged also to urge the State governments to give British subjects the use of the State canals on terms of equality with the inhabitants of the United States. It was further agreed that duties should not be levied by Great Britain on Maine lumber floated down the river St. John and its tributaries, when shipped to the United States from New Brunswick. Concerning this article see comment of Hall, 5th ed., 138.

14 U. S. Treaties in Force, 1904, 344.

15 U. S. Treaties in Force, 1904, 344. " This stipulation is understood to secure' the right of access and passage,' but not ' the right to share in the local traffic' between American and British porta, as the case may be." (Moore, Int. L. Dig., 1, 635, citing Mr. Adee, Second Assistant Sec. of State, to Mr. Woodbury, Jan. 6, 1898, 224 MS. Dom. Let. 229.) See also, id., I, 635-636.

Concerning the whole article, see also Schuyler, American Diplomacy, 290-291. Article XXVII contains an engagement by the British Government to urge upon that of the Dominion to secure for the inhabitants of the United States on terms of equality with those of the Dominion, the use of the Welland, St. Lawrence, and other canals; the United States, on the other hand, engaging that British subjects may on similar terms enjoy the use of the St. Clair Flats; and also to urge the State governments to secure for such subjects, on like terms, the use of the several State canals connected with the navigation of the lakes or rivers traversed by or contiguous to the international boundary. (U. S. Treaties in Force, 1904, 344-345.)

16 U. S. Treaty Vol. (1776-1887), 434-435. Concerning the right of New Brunswick under the treaty to impose an export duty on all timber shipped from the province, including that floated down from Maine, see Moore, Int. L. Dig., I, 636-637, and documents there cited.

Article XXXI of the treaty of May 8, 1871, contained an engagement by Great Britain to urge upon the Parliament of the Dominion and the Legislature of New Brunswick that no export or other duty should be imposed on lumber of any kind in that part of Maine watered by the St. John and its tributaries, and floated down that river to the sea, when the same was shipped to the United States from the Province of New Brunswick. (U. S. Treaties in Force. 1904, 345.)

17 U. S. Treaties in Force, 1904, 325.

18 Int. L. Dig., I, 639. Concerning the claims of the Hudson’s Bay Company, see Moore, Int. Arbitrations, T. 253, 262. See communication of Mr. Bayard, Sec. of State, to Mr. Lundy, July 25. 1885, in which a distinction is made between the rights of the upper ami l.,wer riparian inhabitants. 156 MS. Dom. Let., 358; Moore, Int. L. Dig., I, 639.

19 See Articles VI and VII of the treaty of Feb. 2, 1848, the latter of which contains the stipulation that neither Government " shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right [of free navigation], not even for the purpose of favoring new methods of navigation. Nor shall any tax or contribution, under any denomination or title, be levied upon vessels or persons navigating the same, or upon merchandise or effects transported thereon, except in the case of landing upon one of their shores." U. S. Treaty Vol. (1776-1887), 685. See also, Article IV of the treaty of December 30, 1853, U. S. Treaties in Force, 1904, p. 529. The substance of relevant provisions of the two treaties is contained in Moore, Int. L. Dig., I, 639.

20 Compare, however, Art. XXVI of treaty between the United States and Bolivia of May 13, 1858, with respect to the rivers Amazon and La Plata, U. S. Treaty Vol. (1776-1887), 98.

21 Concerning the efforts of the United States to secure free navigation of the Amazon, see Moore, Int. L. Dig., I, 640-645, and documents there cited; Schuyler, American Diplomacy, 329-344.

Mr. Marcy, Sec. of State, in a communication to Mr. Trousdale, Minister to Brazil, Aug. 8, 1853, declared: "You are instructed to claim for our citizens the use of this natural avenue of trade. This right is not derived from treaty stipulations — i t is a natural one — aa mueh so as that to navigate the ocean — the common highway of nations. By long usage it is subject to some restrictions imposed by nations through whose territories these navigable rivers pass. This right, however, to restrict or regulate commerce, carried to its utmost extent, does not give the power to exclude such rivers from the common use of nations." (MS. Inst, to Brazil, XV, 215; Moore, Int. L. Dig., I, 642, 643.)

22 See Article XXVI, treaty of May 13, 1858, U. S. Treaty Vol. (1776-1887), 08.

23 Thus, Article I of the treaty with the Argentine Confederation of July 10, 1853, declares that the country " in the exercise of her sovereign rights, concedes the free navigation of the Rivers Parana and Uruguay, wherever they may belong to her." (U. S. Treaties in Force, 1904, 22.) See also, Article II of the treaty with Paraguay of Feb. 4, 1859, U. S. Treaties in Force, 1904, 618.

24 See Baron Rio-Braneo, Minister for Foreign Affairs, to Mr. Seeger, American Consul-General, February 20, 1903, U. S. For. Rel., 1903, 43; Moore, Int. L. Dig., I, 646.

25 As to the various Brazilian decrees with reference to the navigation of the Amazon, see Moore, Int. L. Dig., I, 645; Brit. & For. State Pap., LVIII, 551, 552-567; Diplomatic Cor., 1867, II, 256, 257; U. S. For. Rel., 1899, 123.

With respect to the permission granted by Brazil at various times to American warships, and particularly to the U. 8. S. Wilmington, to ascend the upper Amazon, see U. S. For. Rel., 1899, 115-124; Moore, Int. L. Dig., I, 648-649.

26 Moore, Int. Arbitrations, II, 1696-1698. Concerning the concession in 1873 to General Perez of an exclusive right of navigating the Orinoco, see id., II, 1701, citing Sen. Ex. Doc, 139, 50 Cong. 1, sess. 32.

See also, extract from report of Colombian Minister of Foreign Affairs in 1894, U. S. For. Rel., 1894, 193, 200; Moore, Int. L. Dig., I, 651; also, reasoning of the Umpire in the Faber case, sustaining certain Venezuelan decrees suspending traffic on the river Zulia during 1900, 1901 and 1902. Ralston & Doyle’s Reports (Venezuelan Arbitrations, 1903), 600, 620; also bibliographical note of the reporters, id., 603.

27 As to the effect of the Brazilian Constitution on the right of that state to impose transit taxes, see opinion of Mr. L. Renault, U. S. For. Rel., 1903, 38-39.

Concerning the closing to vessels in the foreign trade of certain channels of the Orinoco by Venezuela in 1893, as a regulation of navigation in that river, and the attitude of Mr. Gresham, Secy, of State, see U. S. For. Rel., 1893, 729; id., 1894, 794; Moore, Int. L. Dig., I, 649-650; also additional documents there cited.

28 Concerning the navigation of European rivers, see Moore, Int. L. Dig., I, 628-631, and authorities cited; Woolsey, 6th ed., 80-81; Schuyler, American Diplomacy, 345-363; Westlakc, I, 142-151.

29 See Articles 108 to 117, N. R. i l , 427-429; see also, Moore, Int. L. Dig., I, 628; Oppenheim, I, 227; Schuyler, American Diplomacy, 345-363.

30 N. R. G., XV, 776, translated in Westlake, I, 149. See also, Moore, Int. L. Dig., I, 630.

The Congo: Art. II of the General Act of the Berlin Conference of 1885, made provision for the free navigation of the Congo and the Niger, as well as their tributaries, and established an international commission for their control. N. R. G., 2 ser., X, 417, translated in Westlake, I, 155; see also, British Order in Council regulating navigation of the Niger, August 10, 1903, Brit. & For. State Pap., XCVI, 230.

Concerning the opening of the Persian river Karun in 1888 to foreign merchant vessels, see Moore, Int. L. Dig., I, 652.