gation of the rivers and canals of the ancient kingdom of Poland was declared to be free "so as not to be interdicted to any inhabitant of the Polish provinces, subject to either the Russian or Austrian Government." It was agreed, however, that a tonnage duty should be levied for the purpose of maintaining the rivers and canals in question in a navigable state, and that commissioners should be appointed for the purpose of regulating this and other matters of navigation. Similar provisions were embodied in a treaty concluded on the same day between Prussia and Russia touching ancient Poland. By the treaty between Prussia and Saxony of May 18, 1815, provision was made (Art. XVII.) for the creation of a commission to regulate the navigation of the Elbe, in accordance with the general principles adopted at the Congress of Vienna. By the treaty of June 23, 1821, between Austria, Denmark, Great Britain, Prussia, Saxony, Hanover, Mecklenburg-Schwerin, Anhalt-Bernburg, Coethen and Dessau, and Hamburg, “the navigation of the Elbe, from the point at which that river becomes navigable down to the open sea, and rice versa (as well in ascending as in descending)," was declared to be "entirely free with respect to commerce." To secure this end various stipulations were made, including a provision for the appointment of a commission of revision, whose members should be appointed by the bordering states, and whose object and powers should be "to watch over the due observance of the present convention; to form itself into a committee for the settlement of any differences which may arise between the states bordering on the river, and to determine upon the measures which by experience may be found to be necessary to the improvement of commerce and navigation."

A treaty between Austria, Modena, and Parma, of July 3, 1849, to which the Pope acceded February 12, 1850, declared the navigation of the Po to be free and open to all persons, and committed its regulation to a commission."

By a treaty signed at Bucharest, December 3-15, 1866, between Austria, Russia, and the United Principalities of Moldavia and Wallachia, the navigation of the Pruth was declared to be free and open to all flags; and provision was made for a permanent mixed commission for the purpose of regulating such navigation.

The river Douro, by a treaty between Portugal and Spain of August 31, 1835, was declared to be free for the navigation of "the subjects of both Crowns." It was provided that navigation dues and the police of the river should be regulated by a mixed commission. By Article V. of the treaty of Teschen, May 13, 1779, the rivers

The treaty of Vienna, June 9, 1815, Art. XCVI., provided that the general principles adopted by the Congress in regard to the navigation of rivers should apply to the Po, and that commissioners should be appointed by the states bordering on it to regulate all that concerned its navigation.

Danube, Inn, and Salza were declared to be common to the House of Austria and the Elector Palatine for the navigation of their subjects. These stipulations were confirmed as to the Salza and Saale by the treaty between Austria and Bavaria of April 14, 1816.

By Article XV. of the Peace of Paris of March 30, 1856, it was provided that the principles established by the Congress of Vienna for the regulation of the navigation of rivers which separate or traverse different states should in future apply to the Danube and its mouths, whose navigation was declared to be free, subject to police and quarantine regulations. With a view to carry out this arrangement it was stipulated (Art. XVI.) that a European commission, composed of one delegate each from Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, should be charged with the execution of works for clearing the mouths of the river and the adjacent seas from obstructions. By Article XVII. of the treaty, provision was made for the establishment of a permanent body, called the Danube River Commission, to be composed of delegates of Austria, Bavaria, Turkey, Wurtemberg, and the three Danubian principalities, for the purpose (1) of preparing regulations of navigation and river police, (2) of removing impediments to the application of the arrangements of the treaty of Vienna, (3) of causing necessary works to be executed along the whole course of the river, and (4) of keeping the mouths and adjacent seas in a navigable state after the dissolution of the European commission.

By the treaty of London of March 13, 1871, the existence of the European commission was extended to April 24, 1883. It was further provided that "the conditions of the reassembling of the riverain commission," established by Article XVII. of the treaty of Paris, should “be fixed by a previous understanding between the riverain powers, without prejudice to the clause relative to the three Danubian principalities," and that, so far as any modification of the article should be involved, it should" form the subject of a special convention between the cosignatory powers."

By the treaty of Berlin of July 13, 1878, in order to increase the guaranties of the free navigation of the Danube, it was provided (Art. LII.) that "all the fortresses and fortifications existing on the course of the river from the Iron Gates to its mouth" should be razed and no new ones erected." It was also provided (Art. LIII.) that the European commission, on which Roumania was to have a representative, should be "maintained in its functions," and that it should thenceforth exercise them" as far as Galatz in complete independence of the territorial authorities." And it was further provided (Art. LIV.) that prior to the expiration of the term assigned for the duration of the European commission, the powers should "come to an understanding as to the prolongation of its powers, or the modifica

tions which they may consider necessary to introduce," and (Art. LV.) that the regulations respecting the navigation, river police, and supervision from the Iron Gates to Galatz should be drawn up by the European commission, assisted by delegates of the riverain states, and placed in harmony with those issued for the river below Galatz.

In order to come to an understanding in regard to these last stipulations, a new treaty was concluded March 10, 1883, between AustriaHungary, France, Germany, Great Britain, Italy, Russia, and Turkey. By this treaty the jurisdiction of the European commission was extended from Galatz to Ibraïla, and its powers were prolonged till April 24, 1904, and thereafter for successive terms of three years till a certain notice was given.

But, besides prolonging the existence of the European commission, the treaty also created a new commission, called the " Mixed Commission of the Danube," to consist of delegates of Austria-Hungary, Bulgaria, Roumania, and Servia, and a member of the European commission, for the purpose of superintending the execution of the regulations made for the navigation of the river. This commission is to endure as long as the Eruopean commission, to hold two sessions a year, and to make its decisions" by a majority of votes."

For the text of the treaties above cited, see Hertslet, Map of Europe by
Treaty.

The rules of the Congress of Vienna were formulated under the influence
of Baron Humboldt, who was a member of the committee on the
navigation of rivers.

For a discussion of the rules of the Congress, see Fiore, Droit Int. (ed.
1885, by Antoine), II. § 761; Hall, Int. Law, (4th ed.), 142 et seq.
See, generally, as to the navigation of rivers, Engelhardt's Histoire du
Droit Fluvial Conventionnel (1889), and the same author's Régime
Conventionnel des Fleuves (1879); Caratheodory, Droit Int. con-
cernant les grands Cours d'Eau (1861), and the same author's Das
Stromgebietsrecht und die internationale Flusschiffahrt (1887);
Woolsey, Int. Law, § 62; Hall, Int. Law (4th ed.), 136.

As to the navigation of the Danube, see Mr. Uhl, Act. Sec. of State, to Mr.
Crocker, Nov. 20, 1894, 199 MS. Dom. Let. 457, citing Encyclopædia
Britannica, VI. 819; Treaties and other documents relating to the
navigation of the Danube (Parl. Pap., 1856); Commercial No. 6
(1894); Further report on the improvements made in the navigation
of the Danube, 1878-1893 (Parl. Pap.).

In 1823 a petition was presented to Congress by the inhabitants of American rivers: Franklin County, New York, asking that the right be St. Lawrence. secured to them of exporting their produce, chiefly lumber, through the St. Lawrence River to the Atlantic Ocean."

Congress having reported favorably on the petition, Mr. John Quincy Adams, then Secretary of State, June 23, 1823, instructed Mr. Rush, United States minister at London, to bring the subject to the

a Schuyler, American Diplomacy, 282.

attention of the British Government. It appeared that the inhabitants of the United States had previously enjoyed, especially under the conditions of trade established by the Jay treaty, a certain use of the river for commercial purposes, but the continuance of this use was considered by the British Government, especially after the war of 1812, as a concession which might at any time be withdrawn; and it had in fact been restricted by certain imperial legislation. Mr. Adams stated that the right of the inhabitants of the United States to navigate the St. Lawrence to and from the ocean had never been discussed with the British Government, but that he had little doubt that it might be established upon the "general principles of the law of nature." The United States, declared Mr. Adams, was bound to maintain for the people of the Territory of Michigan and of the States of Illinois, Indiana, Ohio, Pennsylvania, New York, and Vermont the natural right of communicating with the ocean, by the only outlet provided by nature, from the waters bordering upon their shores." He admitted that the possession of both the shores of the river and its mouth had been held to give the right of obstructing or interdicting its navigation to the people of other nations, inhabiting the upper banks; but he maintained that, while the exclusive right of "jurisdiction" over a river originated in the "social compact" and was "a right of sovereignty," the right of "navigating" the river was "a right of nature, preceding it in point of time, and which the sovereign right of one nation can not annihilate as belonging to the people of another." In support of this view he invoked the acts of the Congress of Vienna, declaring the navigation of various rivers to be" free to all nations.” a

66

The British plenipotentiaries were willing to treat of this claim as a concession," for which the Unted States must offer a full equivalent, but expressed the hope that the question of "right" would not even be advanced, since they considered the claim to be " equally novel and extraordinary." The views of each side were embodied in a formal protocol, and the question was then permitted temporarily to rest.” The subject was revived two years later, when Mr. Gallatin was sent as minister to England. In his instructions dated June 19, 1826, Mr. Clay, who was then Secretary of State, maintained the claims of the United States both on the ground of the common right possessed by the two powers of navigating the Great Lakes, and also upon the ground of the law of nature. As a way connecting the Great Lakes and the ocean, Mr. Clay suggested that the St. Lawrence might be considered as a strait forming a link between the two bodies of water,

a Am. State Papers, For. Rel. VI. 757-758.

Mr. Rush, min. to England, to Mr. Adams, Sec. of State, Aug. 12, 1824, Am. State Papers, For. Rel. VI. 769, 772.

both of which the inhabitants of the two countries possessed the right to navigate. But, if the channel of the St. Lawrence was to be considered as a river, he contended that the right of the United States to navigate it was clearly and satisfactorily maintainable." He pointed out and explained the distinction between the claim of a right of way over land and of the right to navigate a stream of water, as well as the distinction, in point of free navigation, between a stream navigable only within the jurisdiction of one nation and a stream navigable within the dominions of two or more nations. The right of the inhabitants of the upper banks of a river to navigate it on their way to the sea, through the territories of another sovereign, he maintained as a natural right. "From the very nature of such a river," said Mr. Clay, "it must, in respect to its navigable uses, be considered as common to all the nations who inhabit its banks, as a free gift flowing from the bounty of Heaven, intended for all whose lots are cast upon its borders." He also appealed to the regulations of the Congress of Vienna, which should, he declared, "be regarded only as the spontaneous homage of man to the superior wisdom of the paramount Lawgiver of the Universe, by delivering His great works from the artificial shackles and selfish contrivances to which they have been arbitrarily and unjustly subjected." Mr. Clay also referred to the practical inconveniences which might result if the United States should assume to restrict the use of channels of the river lying in American jurisdiction."

a

The views of Mr. Clay were not accepted by the British Government, and the practical importance of the subject was for a time rendered less apparent by developments in the course of trade in the United States, following the opening of the Erie Canal.

This passage is quoted by Englehardt on the title-page of his Histoire du Droit Fluvial Conventionnel.

b Mr. Clay, Sec. of State, to Mr. Gallatin, min. to England, June 19, 1826, Am. State Papers, For. Rel. VI, 762–767. See also, id. 767-769; Gallatin's Writings, II. 313, 348, 368, 372, 395, 403; Schuyler, American Diplomacy, 287-289; Phillimore, Int. Law (2nd ed.), I. 207; Field, Int. Code, § 55; Wharton, Com. on Am. Law, § 191; 19 Brit. & For. State Papers, 1088.

e In 1848 a communication was made to the British minister at Washington, acknowledging the "courtesy" of the British Government and of the governorgeneral of Canada, in permitting the "transfer, via the river St. Lawrence," of "two small schooners to replace the steamers Jefferson and Dallas lately withdrawn from the United States revenue service on lakes Erie and Ontario." (Mr. Toucey, Act. Sec. of State, to Mr. Crampton, Brit. min., Nov. 21, 1848, MS. Notes to Great Britain, VII. 190.)

In 1850 it was stated as a matter of public information that the Canadian government had announced its determination not to grant to American vessels the privilege of passing "through the river St. Lawrence to the Atlantic Ocean... during the pendency of the Canadian reciprocity bill which is now before Congress." (Mr. Clayton, Sec. of State, to Mr. Buel, M. C., April 12, 1850, 37 MS. Dom. Let. 304.)