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the Dutch Canals of the Sas and the Swin, and that this peculiarity probably caused the insertion of the stipulation in the Treaty of Westphalia; that the case of the St. Lawrence differed materially from that of the Scheldt, and fell directly under the principle of free navigation embodied in the Treaty of Vienna respecting the Rhine, the Neckar, the Main, the Moselle, the Meuse, and the Scheldt. But especially it was urged, and with a force which it must have been difficult to parry, that the present claim of the United States with respect to the navigation of the St. Lawrence was precisely of the same nature as that which Great Britain had put forward with respect to the navigation of the Mississippi when the mouth and lower shores of that river were in the possession of another State, and of which claim Great Britain had procured the recognition by the Treaty of Paris in 1763.

The principal argument contained in the reply of Great Britain was, that the liberty of passage by one nation through the dominions of another was, according to the doctrine of the most eminent writers upon International Law, a qualified occasional exception to the paramount rights of property; that it was what these writers called an imperfect, and not a perfect (o) right; that the Treaty of Vienna did not sanction this notion of a natural right to the free passage over rivers, but, on the contrary, the inference was that, not being a natural right, it required to be established by a convention; that the right of passage once conceded must hold good for other purposes besides those of trade in peace, for hostile purposes in time of war; that the United States could not consistently urge their claim on principle without being prepared to apply that principle, by way of reciprocity, in favour of British subjects, to the navigation of the Mississippi and the Hudson, to which access

(0) The inaccuracy of this phrase has been already noticed. It was intended to say that the navigation was a right not stricti juris, but a concession of comity.

might be had from Canada by land carriage or by the Canals of New York and Ohio.

The United States replied, that practically the St. Lawrence was a strait (p), and was subject to the same principles of law; and that as straits are accessory to the seas which they unite, and therefore the right of navigating them is common to all nations, so the St. Lawrence connects with the ocean those great inland lakes, on the shores of which the subjects of the United States and Great Britain both dwell; and, on the same principle, the natural link of the river, like the natural link of the strait, must be equally available for the purposes of passage by both. The passage over land, which was always pressing upon the minds of the writers on International Law, is intrinsically different from a passage over water; in the latter instance, no detriment or inconvenience can be sustained by the country to which it belongs. The track of the ship is effaced as soon as made; the track of an army may leave serious and lasting injury behind. The United States would not "shrink" from the application of the analogy with respect to the navigation of the Mississippi, and whenever a connection was effected between it and Upper Canada, similar to that existing between the United States and the St. Lawrence, the same principle should be applied. It was, however, to be recollected, that the case of rivers which both rise and disembogue themselves within the limits of the same nation is very distinguishable, upon principle, from that of rivers which, having their sources and navigable portions of their streams in States above, discharge themselves within the limits of other States below.

Lastly, the fact, that the free navigation of rivers had been made a matter of convention did not disprove that this navigation was a matter of natural right restored to its proper position by treaty.

The result of this controversy for many years produced no effect. Great Britain maintained her exclusive right. The

(p) Vide post, the law as to Straits.

United States still remained debarred from the use of this great highway, and were not permitted to carry over it the produce of the vast and rich territories which border on the lakes above to the Atlantic Ocean.

It seems difficult to deny that Great Britain may have grounded her refusal upon strict Law; but it is at least equally difficult to deny, first, that in so doing she put in force an extreme and hard law; secondly, that her conduct with respect to the navigation of the St. Lawrence was inconsistent with her conduct with respect to the navigation of the Mississippi. On the ground that she possessed a small tract of domain in which the Mississippi took its rise, she insisted on her right to navigate the entire volume of its waters on the ground that she possessed both banks of the St. Lawrence where it disembogued itself into the sea, she denied to the United States the right of navigation, though about one half of the waters of Lakes Ontario, Erie, Huron, and Superior, and the whole of Lake Michigan through which the river flows, were the property of the United States.

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Any blame, however, attaching to the conduct of Great Britain, was removed by the Reciprocity Treaty of June 5, 1854, which provided by Article IV. as follows:-" It "is agreed that the citizens and inhabitants of the United "States shall have a right to navigate the river St. Lawrence and the Canals of Canada, used as the means of communicating between the great lakes and the Atlantic "Ocean, with their vessels, boats, and crafts, as fully and freely as the subjects of her Britannic Majesty, subject only to the same tolls and other assessments as now are or "hereafter may be exacted of her Majesty's said subjects; "it being understood, however, that the British Government "retains the right of suspending this privilege on giving "due notice thereof to the Government of the United "States; that if at any time the British Government should "exercise the said reserved right, the Government of the "United States shall have the right of suspending, if it

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"think fit, the operation of Article III. of the present Treaty, in so far as the province of Canada is affected thereby, for so long as the suspension of the free navi'gation of the river St. Lawrence or the canals may con'tinue; that British subjects shall have the right freely to "navigate Lake Michigan with their vessels, boats, and "crafts, so long as the privilege of navigating the river "St. Lawrence, secured to American citizens by the above "clause of the present article, shall continue; and the "Government of the United States further engages to urge "upon the State governments to secure to the subjects of "her Britannic Majesty the use of the several State canals "on terms of equality with the inhabitants of the United "States; and that no export duty, or other duty, shall be "levied on lumber or timber of any kind, cut on that portion "of the American territory in the State of Maine, watered "by the river St. John and its tributaries, and floated down "that river to the sea where the same is shipped to the "United States from the province of New Brunswick ” (q).

On January 18, 1865, the President of the United States put an end to this Treaty, in pursuance of a Resolution of Congress, availing himself of a provision in the Treaty, ten years having elapsed since its execution (r).

CLXXI. The Uruguay and Parana have been opened to all merchant vessels by a Treaty of July 10, 1858, between the United States and the Argentine Confederation, and by a Treaty, May 13, 1858, between the United States. and Bolivia. The latter country declares "that, in ac"cordance with fixed principles of International Law, it "regards the Amazon and La Plata, with their tributaries, "as highways or channels opened by nature on the 66 commerce of all nations." Ecuador, November 26, 1858, has declared her rivers free. Peru appears to have

(q) Hertslet's Treaties, vol. ix. 998, x. 647, xi. 898.

See Address of President Pierce, 1853, Ann. Reg. for that year, p. 414. See Lawrence's Wheaton, n. 114, p. 361.

(r) Dana's Wheaton, p. 181; U. S. Laws, xiii. 566.

still a controversy as to the Peruvian tributaries of the Amazon (s).

CLXXII. The question, whether the open sea, or main ocean, could be appropriated (t) by any State to the exclusion of others, has been the subject of celebrated controversies. Spain and Portugal, at different epochs, have claimed exclusive right, founded upon the titles of previous discovery, possession, and Papal grants, to the navigation, commerce, and fisheries of the Atlantic and Pacific Oceans. The Mare Liberum (u), written by Grotius in 1609, the chief object of which was to demonstrate the injustice of the Portuguese pretensions, founded on their discovery of the Cape of Good Hope, to the exclusive navigation of the African and the Indian seas,-the Mare Clausum, written by our own countryman Selden, to establish the exclusive right of Great Britain to the British seas,-Puffendorf, in the fifth chapter of his fourth book "De Jure Naturali "Gentium,”—and the essay of Bynkershoek in 1702, De Dominio Maris, have exhausted this theme (r). It is sufficient

(8) Dana's Wheaton, 204–5.

President Pierce's Message to United States, 1853; Ann. Reg. 1853, p. 323.

Lawrence's Wheaton, 360, n. 114.

See Speech of the Earl of Clarendon, Secretary of Foreign Affairs, in the House of Lords, June 3, 1853.-Hansard's Parl. Deb. vol. cxxvii. No. 6, pp. 1073-4.

(t) Albericus Gentilis, lib. i. c. viii. Advocationes Hispanicæ, maintains (in 1613) the claim of Great Britain to the Narrow Seas.

Wheaton's Law of Nations, 1, 225-9.

Vattel, lib. i. c. xxiii.

Martens, lib. ii. c. i. s. 43. De l'Océan, lib. iv. c. iv. s. 157. Droits sur l'Océan et sur la Mer des Indes.

Günther, ii. p. 28. "Das Hauptwerk hierbei kommt darauf an, dass man die offene See, oder das grosse Weltmeer von den einzelnen Theilen desselben, die an oder zwischen die Länder der Nationen gehen, unterscheide."

(u) A noble work, which cannot now be read without profit to the reader and admiration for the writer. It was dedicated "Ad Principes Populosque liberos Orbis Christiani."

(a) When the Spanish envoy, Mendoza, complained to the Queen Elizabeth that English ships presumed to trade in the Indian Seas, that

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