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.

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. Law"rence 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 navigation 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 "(7).

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 "commerce of all nations." Ecuador, November 26, 1858, has declared her rivers free. Peru appears to have

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(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."

(x) 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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to say, that the reason of the thing, the preponderance of authority, and the practice of nations, have decided, that the main ocean, inasmuch as it is the necessary highway of all nations, and is from its nature incapable of being continuously possessed, cannot be the property of any one State. "Igitur quicquid dicat Titius, quicquid Mævius, ex "possessione jure naturali et gentium suspenditur dominium, nisi pacta dominium, citra possessionem, de"fendant, ut defendit jus cujusque civitatis proprium” (y). It is possible, as is indeed apparent from this citation, that a nation may acquire exclusive right of navigation and fishing of the main ocean as against another nation, by virtue of the specific provisions of a treaty; for it is competent to a nation to renounce a portion of its rights; and there have been instances of such renunciation, both in ancient and modern times.

CLXXIII. The treaty of peace, justly called "famous" by Demosthenes (z) and Plutarch (a), whereby the Athenians extorted from the Persians a pledge that they would not approach the Greek sea within the space of a day's journey on horseback, and that no ship of war should sail between the

queen gave for answer,-"That she saw no reason that could exclude her, or other nations, from navigating to the Indies, since she did not acknowledge any prerogative that Spain might claim to that effect, and much less any right in it to prescribe laws to those who owed it no obedience, or to debar them trade. That the English navigated on the ocean, the use of which was like that of the air, common to all men, and which, by the very nature of it, could not fall within the possession or property of any one.”—Camd. in Vita Elizabeth, ad ann. 1580, p. m. 328 et seq. (y) Bynkershoek, Opera, t. vi. p. 361.

(2) Καλλίαν τὸν Ἱππονίκου, τὸν ταύτην τὴν ὑπὸ πάντων θρυλλουμένην εἰρήνην πρεσβεύσαντα, ἵππου μὲν δρόμον ἡμέρας πεζῇ μὴ καταβαίνειν ἐπὶ τὴν θάλατταν βασιλέα ἐντὸς δὲ Χελιδονέων καὶ Κυανέων πλοίῳ μακρῷ μὴ πλεῖν. — Orat. de falsa Legat., Demosth.

(α) Τοῦτο τὸ ἔργον οὕτως ἐταπείνωσε τὴν γνώμην τοῦ βασιλέως, ὥστε συνθέσθαι τὴν περιβόητον εἰρήνην ἐκείνην, ἵππου μὲν δρόμον ἀεὶ τῆς Ἑλληνικῆς ἀπέχειν θαλάσσης, ἔνδον δὲ Κυανέων καὶ Χελιδονέων μακρᾷ νηὶ καὶ Xaλkeμßóλ μη λeiv.- Plutarch, in vita Cimon.

Grotius, 1. ii. c. iii. s. 15.

Vattel, 1. i. c. xxiii. s. 284.

Cyanean and Chelidonian isles; the treaties whereby the Carthaginians bound the Romans not to navigate the Mediterranean beyond a certain point, and whereby the Romans imposed restrictions of the like kind upon the Illyrians, and on King Antiochus;-these are memorable examples of the voluntary resignation of a nation's intrinsic rights.

So, in modern times, the House of Austria (b) has renounced, in favour both of the English and Dutch, her right to send ships from the Belgic provinces to the East Indies; and the Dutch attempted to interdict Spanish ships, sailing to the Philippine Islands, from doubling the Cape of Good Hope.

CLXXIV. Instances of this kind, however, are far from proving that the main ocean is capable of becoming property. "Possunt enim ut singuli" (Grotius truly remarks) “ita "et populi pactis, non tantum de jure quod proprie sibi com

petit, sed et de eo quod cum omnibus hominibus commune "habent, in gratiam ejus cujus id interest decedere "(c). He illustrates this position, according to his wont, by a reference to the Roman Law. A person sold his maritime farm with the condition that the purchaser should not fish for thunnies to the prejudice of another maritime farm, which the seller retained in his possession. Upon this case Ulpian gave his opinion that, although the sea belonged to the class of things which could not be subjected to a servitus (d) of this kind,

(b) Traité de Vienne, 16 mars 1731, Art. 5.

(c) Grotius, 1. ii. c. iii. s. 15.

Vattel, 1. i. c. xxiii. s. 284.

Barbeyrac remarks in a note on this passage: "Cela est vrai; mais rien n'empêche aussi que, quand on fait des traités comme ceux dont il s'agit, on n'ait dessein de s'assurer par là la propriété de quelque mer, et d'obliger les autres à la reconnoître. M. Vitrarius, dans son Abrégé de notre auteur (1. ii. c. iii. s. 18), pretend que, si celui qui fait un tel traité étoit dejà maître de la mer dont il veut que l'autre s'éloigne, il ne seroit pas nécessaire de stipuler une telle clause. Mais il ne s'est pas souvenu de ce qu'il établit lui-même, après notre auteur (1. ii. c. xv.), qu'il y a des traités qui roulent sur des choses déjà dues, même par le Droit naturel."

(d) Dig. 1. viii. t. iv. leg. 13: "Venditor fundi Geroniam fundo Ba