claimed, and has been sanctioned by treaties between Turkey and certain European states. A proper occasion may arise for us to dispute the applicability of the claim to United States men of war. Meanwhile it is deemed expedient to acquiesce in the exclusion."

Mr. Fish, Sec. of State, to Mr. Boker, Jan. 3, 1873. MSS. Inst., Turkey. "The United States are not a party to the convention which professes to exclude vessels of war from the Dardanelles; and while it is disposed to respect this traditional sensibility of the Porte as to that passage, the shot which it is supposed may have been intended for a national vessel of this Government might, if it had been directed according to the supposed intention, have precipitated a discussion if not a serious complication."

Mr. Fish, Sec. of State, to Mr. Boker, Jan. 25, 1873; MSS. Inst., Turkey.

The Government of the United States will not tolerate exclusive claims by any nation whatsoever to the Straits of Magellan, and will hold responsible any Government that undertakes, no matter on what pretext, to lay any impost or check on United States commerce through those straits.

Mr. Evarts, Sec. of State, to Mr. Osborn, Jan. 18, 1879. MSS. Inst., Chili. While a natural thoroughfare, although wholly within the dominion of a Government, may be passed by commercial ships, of right, yet the nation which constructs an artificial channel may annex such conditions to its use as it pleases.

The Avon, 18 Int. Rev. Rec., 165.

As to neutralized waters see infra, § 40.

V. RIVERS.
§ 30.

The message of President J. Q. Adams, on January 25, 1828, on the navigation of the Saint Lawrence, with the accompanying papers, is given in House Doc. No. 464, Twentieth Congress, first session; 6 Am. State Papers (For. Rel.), 757. Among these papers are the following:

Mr. Rush, minister at London, to Mr. Adams, Secretary of State, August 12, 1824; Mr. Clay, Secretary of State, to Mr. Gallatin, minister at London, June 19, 1826, August 8, 1826; Mr. Gallatin to Mr. Clay, September 21, 1829, October 1, 1827.

The position taken by Mr. Clay, in his instructions to Mr. Gallatin, of June 19, 1826, was that the United States claimed the right of fice navigation of the Saint Lawrence as a strait dividing two sovereignties. The British Government took the position that while not conceding the claim as a matter of right, they would be willing to negotiate in respect to it as a matter of convenience. The argument on the side of the United States is given in the American paper entitled the Eighteenth Protocol; that on the side of Great Britain in the British paper entitled the Twenty-fourth Protocol. (See also Ex. Doc. No. 43, Twentieth Congress, first session.)

By the reciprocity treaty of June 5, 1854, "the citizens and inhabitants of the United States shall have the power to navigate the river Saint Lawrence and the canals in 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 may hereafter 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. It is further agreed 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 think fit, the operations 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 Saint Lawrence or the canals may contir.ue. It is further agreed 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 Saint Lawrence, secured to American citizens by the above clause of the present article shall continue; and the Governinent 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 it is further agreed 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 Saint John and its tributaries and floated down that river to the sea when the same is shipped to the United States from the province of New Brunswick."

This treaty was terminated March 17, 1866, under resolution of Congress of January 18, 1865.

"A like unfriendly disposition has been manifested on the part of Canada in the maintenance of a claim of right to exclude the citizens of the United States from the navigation of the Saint Lawrence. This river constitutes a natural outlet to the ocean for eight States, with an aggregate population of about 17,600,000 inhabitants, and with an ag gregate tonnage of 661,367 tons upon the waters which discharge into

it.

The foreign commerce of our ports on these waters is open to British competition, and the major part of it is done in British bottoms. "If the American seamen be excluded from this natural avenue to the ocean, the monopoly of the direct commerce of the lake ports with the Atlantic would be in foreign hands; their vessels on transatlantic voyages having an access to our lake ports which would be denied to American vessels on similar voyages. To state such a proposition is to refute its justice.

"During the administration of Mr. John Quincy Adams, Mr. Clay S. Mis. 162-VOL. I-6 81

unanswerably demonstrated the natural right of the citizens of the United States to the navigation of this river, claiming that the act of the congress of Vienna, in opening the Rhine and other rivers to all nations, showed the judgment of European jurists and statesmen that the inhabitants of a country through which a navigable river passes have a natural right to enjoy the navigation of that river to and into the sea, even though passing through the territories of another power. This right does not exclude the coequal right of the sovereign possessing the territory through which the river debouches into the sea to make such regulations relative to the police of the navigation as may be reasonably necessary; but those regulations should be framed in a liberal spirit of comity, and should not impose needless burdens upon the commerce which has the right of transit. It has been found in practice more advantageous to arrange these regulations by mutual agreement. The United States are ready to make any reasonable arrangement, as to the police of the Saint Lawrence, which may be sug. gested by Great Britain.

"If the claim made by Mr. Clay was just when the population of States bordering on the shores of the lakes was only 3,400,000, it now derives greater force and equity from the increased population, wealth, production, and tonnage of the States on the Canadian frontier. Since Mr. Clay advanced his argument in behalf of our right the principle for which he contended has been frequently, and by various nations, recognized by law or by treaty, and has been extended to several other great rivers. By the treaty concluded at Mayence, in 1831, the Rhine was declared free from the point where it is first navigable into the sea. By the convention between Spain and Portugal, concluded in 1835, the navigation of the Douro, throughout its whole extent, was made free for the subjects of both crowns. In 1853 the Argentine Confederation by treaty threw open the free navigation of the Parana and the Uruguay to the merchant vessels of all nations. In 1856 the Crimean war was closed by a treaty which provided for the free navigation of the Danube. In 1858 Bolivia, by treaty, declared that it regarded the rivers Amazon and La Plata, in accordance with fixed principles of national law, as highways or channels, opened by nature for the commerce of all nations. In 1859 the Paraguay was made free by treaty, and in December, 1866, the Emperor of Brazil, by imperial decree, declared the Amazon to be open, to the frontier of Brazil, to the merchant ships of all nations. The greatest living British authority on this subject, while asserting the abstract right of the British claim, says: 'It seems difficult to deny that Great Britain may ground her refusal upon strict law, but it is equally difficult to deny, first, that in so doing she exercises harshly an extreme and hard law; secondly, that her conduct with respect to the navigation of the Saint Lawrence is in glaring and discreditable inconsistency with her conduct with respect to the navigation of the Mississippi. On the ground that she possessed a small domain, in which the

Mississippi took its rise, she insisted on the right to navigate the entire volume of its waters. On the ground that she possesses both banks of the Saint Lawrence, where it disembogues itself into the sea, she denies 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, are the property of the United States.'

"The whole nation is interested in securing cheap transportation from the agricultural States of the West to the Atlantic sea-board. To the citizens of those States it secures a greater return for their labor; to the inhabitants of the sea-board it affords cheaper food; to the nation, an increase in the annual surplus of wealth. It is hoped that the Government of Great Britain will see the justice of abandoning the narrow and inconsistent claim to which her Canadian provinces have urged her adherence."

President Grant's second annual message, 1870.

The treaty of Washington of May 8, 1871, provides as follows:

"ARTICLE XXVI.

"The navigation of the river St. Lawrence, ascending and descending, from the forty-fifth parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regula tions of Great Britain, or of the Dominion of Canada, not inconsistent with such privilege of free navigation.

"The navigation of the rivers Yukon, Porcupine, and Stikine, ascending and descending, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of Her Britannic Majesty and to the citizens of the United States, subject to any laws and regulations of either country within its own terri tory, not inconsistent with such privilege of free navigation.

"ARTICLE XXVII.

"The Government of Her Britannic Majesty engages to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion; and the Government of the United States engages that the subjects of her Britannic Majesty shall enjoy the use of the St. Clair Flats Canal on terms of equality with the inhabitants of the United States, and further engages to urge upon the State governments to secure to the subjects of Her Britannic Majesty the use of the several State canals connected with the navigation of the lakes or rivers trav

ersed by, or contiguous to the boundary line between the possessions of the high contracting parties, on terms of equality with the inhabitants of the United States.

"ARTICLE XXVIII.

"The navigation of Lake Michigan shall also, for the term of years mentioned in Article XXXIII of this treaty, be free and open for the purposes of commerce to the subjects of Her Britannic Majesty, subject to any laws and regulations of the United States or of the States bordering thereon not inconsistent with such privilege of free navigation.

"ARTICLE XXIX.

"It is agreed that, for the term of years mentioned in Article XXXIII of this treaty, goods, wares, or merchandise arriving at the ports of New York, Boston, and Portland, and any other ports in the United States which have been or may, from time to time, be specially designated by the President of the United States, and destined for Her Britannic Majesty's possessions in North America, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the territory of the United States, under such rules, regulations, and conditions for the protection of the reveDue as the Government of the United States may from time to time prescribe; and under like rules, regulations, and conditions, goods, wares or merchandise may be conveyed in transit, without the payment of duties, from such possessions through the territory of the United States for export from the said ports of the United States."

"The ocean is free to all men, and their rivers to all their inhabitants. Accordingly, in all tracts of country united under the same political society, we find this natural right universally acknowledged and protected by laying the navigable rivers open to all their inhabitants. 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."

Report of Mr. Jefferson, March 18, 1792. 7 Jeff. Works, 577.

"The Roman law, which, like other municipal laws, placed the navigation of their rivers on the footing of nature, as to their own citizens, by declaring them public (flumina publica sunt, hoc est populi Romani, Inst. 2, t. 1, § 2), declare also that the right to the use of the shores was incident to that of the water. Ibid., §§ 1, 3, 4, 5."

1b. 7 Jeff. Works, 580. See App., Vol. III, § 30.

Mr. Jefferson's instructions of March 18, 1792, to Messrs. Carmichael and Short, as to the navigation of the Mississippi River, and as to riparian rights, are given in 1 Am. State Papers (For. Rel.), 252.

As to title to the Mississippi, see Mr. J. Q. Adams to Mr. De Onis, Oct. 31, 1818. Supra, § 5.