of the boundaries of such places as were excluded from the common liberty of fishing. The treaty was to remain in force for ten years, and after that time each of the contracting parties possessed the right of bringing it to an end by giving a year's notice to the other. The Government of the United States "denounced" it in 1865, and in 1866 it ceased to exist. The two powers were thus thrown back upon the treaty of 1818, which proved as productive of disagreements as before; and in 1871 another attempt at a settlement was made in the famous Treaty of Washington which provided for the Alabama arbitration. By it the provisions of the Reciprocity Treaty of 1854 were re-established with a few alterations and additions. British subjects received the right to fish on the eastern coasts of the United States north of latitude 39° instead of latitude 36°, and it was agreed that a commission should sit to determine whether the rights granted by Great Britain to the United States were more valuable than those granted by the United States to Great Britain, in which case a corresponding pecuniary indemnity was to be paid by the United States to Great Britain.2 This provision was a virtual abandonment of the original contention that the inhabitants of the United States had a right apart from treaty stipulations to share in the British fisheries. Indeed, the whole course of the negotiations from 1818 onwards shows that the matter was felt to be one for mutual concession. The commission appointed under the treaty of 1871 decided in favor of Great Britain, and awarded her compensation to the amount of five and a half million dollars, which the United States Government promptly paid, though they contended it was greatly in excess of the value of the rights their citizens had gained. At the end of ten years from the time when the fishery arrangements came into force in 1873, either party to the treaty was to have the right of terminating them by giving two years' notice to the other. They were brought to an end in 1885 in consequence of notice given by the President of the United States 1 Treaties of the United States, pp. 448-453. 2 Ibid., pp. 486-488. in 1883. The provisions of the treaty of 1818 were revived thereby, and the old difficulties began immediately to recur. In the hope of terminating them the British Government sent plenipotentiaries to Washington in 1887 charged with the duty of negotiating a fresh fishery treaty. They succeeded in coming to an agreement with the American plenipotentiaries upon the basis of a minute and accurate delimitation of the bays within which the inhabitants of the United States were forbidden to fish by the treaty of 1818, and of an equally elaborate description of the privileges and duties of American fishing-vessels in Canadian ports and harbors.1 But the treaty they negotiated was refused ratification by the Senate of the United States; and the contracting parties were thrown back upon the provisions of a modus vivendi which had been agreed upon by the plenipotentiaries as a means of avoiding difficulties in the interval between the signing of the treaty and its coming into force.2 It is much to be wished that no long time may elapse before a final settlement is arrived at, and an irritating controversy betwen two kindred and friendly nations ended on terms satisfactory and honorable to both. § 112. The last point we have to deal with in connection with our present subject is The navigation of great arterial rivers. International questions arise when a navigable river flows in part of its course through the territory of one state, and in part through the territory of another. There navigation of great can be no doubt that each state possesses territorial rights over that portion of the river which Rights over waters. (8) The arterial rivers. is entirely within its own boundaries. But have all the 1 British State Papers, United States, No. 1 (1888). 2 For the whole subject see Wharton, International Law of the United States, §§ 301-308; Wheaton, International Law (Dana's ed.), pp. 342–350 and note 142; Hall, International Law, § 27. 3 riverian states a right to navigate the whole river, or may each exclude the vessels of the others from its own portion of the waterway? There is no general agreement among authoritative writers on International Law with regard to this question. Some hold that there is a right of navigation,1 others deny the existence of anything of the kind,2 while a third school declare that the right is imperfect, by which they mean that it cannot be claimed apart from special agreement and may be surrounded in its exercise with what restrictions the territorial power sees fit to impose. These last are evidently using self-contradictory phraseology; for a right that cannot be insisted upon is no right at all, but a mere permission depending on good-will. The other two schools are so flatly opposed to one another in their doctrines, that they give us no useful guidance. We must therefore examine for ourselves the cases that have occurred, and endeavor to obtain from them some consistent rule. We find that the great European rivers which run through the territories of more powers than one were subject to tolls till the beginning of the present century. But in 1804 the Congress of Rastadt abolished the Rhine tolls; and in 1815 the Congress of Vienna decided that the great rivers of Western Europe should for the future be open to navigation, and that the tolls to be levied on each of them should be settled by common accord among the riverian powers. In pursuance of this agreement, the Rhine, the Elbe, and other rivers were at various times after 1815 opened to free navigation on payment of such moderate dues as were sufficient to recoup the territorial powers for their expenditure upon the waterway. The Danube was freed by the Treaty of Paris of 1856, and a European commission was charged with the duty of executing the necessary engineering works at its mouth and permitted to levy tolls sufficient to pay their cost. The 1 e.g., Calvo, Droit International, § 291. authority of this commission has been continued and increased by a series of international agreements, the last of which, made in 1883, prolonged its powers for twenty-one years from that date and provided for their further prolongation from time to time.1 If we turn to the New World we find the same tendencies at work with regard to the great arterial rivers of the North American continent. When the United States obtained formal recognition of their independence from Great Britain in 1783, Spain held Louisiana and Florida and thus possessed both banks of the Mississippi at its mouth and for a considerable distance inland. The American Government claimed for its citizens free navigation to the sea as a right; but after long negotiations the dispute was terminated in 1795 by the Treaty of San Lorenzo el Real, which provided that the navigation of the river from its source to its mouth should be free to the subjects and citizens of the two powers. With regard to the St. Lawrence events followed a similar course. The United States asserted and Great Britain denied, that American citizens had a right by the law of nations to navigate that portion of the river which flows entirely through Canadian territory. The Reciprocity Treaty of 1854 granted the privilege demanded in return for a grant to British subjects of freedom to navigate Lake Michigan, but reserved a right of suspending the concession on giving due notice; and finally by the Treaty of Washington of 1871 the navigation of the British portion of the St. Lawrence was thrown open "forever" to citizens of the United States.8 The conclusion to be drawn from these facts seems evident. It is that while as a matter of strict right a state possessed of one portion of a navigable river can exclude from that portion 1 Holland, European Concert in the Eastern Question, 248–250, 308–322. 2 Twiss, Law of Nations, I., § 145; Treaties of the United States, 1007, 1382-1384. 3 Wharton, International Law of the United States, § 30; Treaties of the United States, p. 488. the subjects of the other riverain states, yet as a matter of comity it refrains from exercising its full rights in this respect, nor does it levy tolls for any other purpose than to provide lights and buoys and cover the incidental expenses of keeping the waterway in good condition. We We may further say that the tendency in favor of freedom of navigation is so strong that any attempt to revive the exercise of the right of total exclusion, or even to levy tolls for profit, would be regarded as an aggression. Usage is turning against the ancient rule. It is now set aside by treaty stipulations; but in time the new usage founded upon them will give rise to a new rule, and no treaty will then be required to provide for the free navigation of a river by the co-riparian states. It is an admitted principle that the right of traversing the stream carries with it the right of using the banks for purposes incidental to navigation. When a large navigable river runs in its entire course through the territory of one state, the right of exclusion probably still remains. But few difficulties arise in practice; for most nations civilized after the European model allow, and even encourage, the navigation of their arterial waters by the ships of other states. In most cases the permission to navigate is tacitly given; but in some South American instances, where exclusion has till recently been the rule, rivers have been thrown open by a formal act of the state. Thus in 1867 the Emperor of Brazil issued a decree opening the navigation of the Amazon and its tributaries to the merchant vessels of all nations.1 The powers concerned in the opening up of Africa have already begun to apply to its arterial rivers the principles previously admitted in the case of the great navigable streams of Europe and America. In 1885 the Final Act of the West African Conference decreed that the Congo and the Niger and their affluents should be freely open to navigation by the merchant ships of all nations without exception or discrimination.2 1 Wharton, International Law of the United States, I., 98. |