The Danish straits.

A. The claims of Denmark to exclusive control over Elsineur Sound and the Belts, are now matters of history, but a brief sketch of the past usage may not be without its use. Danish jurists rested these claims rather on immemorial prescription than on the cost of providing for the security of commerce by lighthouses, or by removing obstacles to navigation. In 1319, a charter regulated the duties to be paid by the Dutch. In 1544 the Emperor Charles V. stipulated the payment of the Sound dues by the merchants of the Low Countries. Subsequently, Denmark raised the tariff, which brought on a war with the Dutch and other nations. In 1645 Sweden obtained exemption from tolls, and, at the same time, by the treaty of Christianstadt, the amount of duties to be paid by the Dutch was again adjusted. France and England, in the seventeenth century, agreed to pay the same tariff with the Dutch.

Things continued thus for two centuries. In 1840, attention having been drawn in England to the Sound dues by the delays and vexations of commerce, negotiations were had which removed part of the complaints.

In 1826 a commercial convention for ten years with Denmark placed the United States on the footing of the most favored nations, which caused a reduction of the duties we had been paying hitherto. In 1843 the justice of the demand began to be more especially drawn into question, and the Secretary of State expressed himself against it. Amid the difficulties of Denmark, in 1848, the Chargé from the United States proposed, as a commutation for the claim, the sum of two hundred and fifty thousand dollars. Five years afterwards the diplomatic agent of the United States was instructed by Mr. Marcy to take the ground with Denmark, that his country could recognize no immemorial usage not coinciding with natural justice and international law. In the next year the President advised that the convention of 1826 should be regarded as at an end; and, after a vote of the Senate to this effect, notice was given to Denmark that it would be broken off in a year from that time. Denmark now, in October, 1855,

proposed to our government to enter into a plan of capitalizing the dues according to an equitable adjustment, but the government declined being a party to such an arrangement. Meanwhile, as difficulties with the United States seemed to be impending, and as other nations were interested in putting an end to this annoyance, a congress met at Copenhagen, to consider this question, and fixed on the sum of thirty-five million rixdollars (at fifty cents of our money to the dollar) as the sum for which Denmark ought to give up the Sound dues forever. This payment was divided among the nations interested, in proportion to the value of their commerce passing through the Danish straits; and an arrangement for extinguishing the claim has since been accepted by them all. In March, 1857, our government agreed to pay, as its portion of the capitalized stock, three hundred ninety-three thousand and eleven dollars.1

The Black

passage into

it.

B. The entrance into the Black Sea and that sea itself. Until Russia acquired territory on the Black Sea, Sea and the that sea, with the straits leading to it, and the sea of Marmora, lay entirely within Turkish territory. But the existence of another power on the Black Sea modified the rights of Turkey. By the treaty of Adrianople, in 1829, entrance through the straits into the Black Sea, and its navigation, were admitted to belong to Russia and to powers at amity with Russia. The ancient practice, however, had been to prohibit all foreign vessels of war from entering the Bosphorus and the Dardanelles; and by the treaty of London, in 1841, between the five powers and Turkey, this usage was sanctioned. Finally, by the treaty of Paris, March 30, 1856, "the Black Sea is made neutral. Open to the mercantile marine of all nations, its waters and ports are formally, and in perpetuity, interdicted to flags of war, whether belonging to the bordering powers, or to any other power." The treaty, however, proceeds to grant to Russia and Turkey the liberty of making a convention in regard to a small force, to be kept

1 Compare especially an article in the North American Review for January, 1857, vol. lxxxiv., from which we have drawn freely.

up within the sea for coast service. By this convention the two powers allow one another to maintain six steam-vessels of not over eight hundred tons, and four light steamers, or sailing vessels, of not over two hundred tons burden each.1

§ 62.

gation.

4. Where a navigable river forms the boundary between two states, both are presumed to have free use of it, Rights over and the dividing line will run in the middle of the river navichannel, unless the contrary is shown by long occupancy or agreement of the parties. If a river changes its bed, the line through the old channel continues, but the equitable right to the free use of the stream seems to belong, as before, to the state whose territory the river has forsaken.

When a river rises within the bounds of one state and empties into the sea in another, international law allows to the inhabitants of the upper waters only a moral claim or imperfect right to its navigation. We see in this a decision based on strict views of territorial right, which does not take into account the necessities of mankind and their destination to hold intercourse with one another. When a river affords to

an inland state the only, or the only convenient means of access to the ocean and to the rest of mankind, its right becomes so strong, that according to natural justice possession of territory ought to be regarded as a far inferior ground of right. Is such a nation to be crippled in its resources, and shut out from mankind, or should it depend on another's caprice for a great part of what makes nations fulfill their vocation in the world, merely because it lies remote from the sea which is free to all? Transit, then, when necessary, may be demanded as a right: an interior nation has a servitude along nature's pathway, through the property of its neighbor, to reach the great highway of nations. It must, indeed, give all due security that trespasses shall not be committed on the passage, and pay all

1 For modifications of the treaty of 1856 in 1871, see the sketch of the treaty of 1856, at its close. Append. ii., under 1856, at the end.

equitable charges for improvements of navigation and the like; but, this done, its travelers should be free to come and go on that water-road which is intended for them. An owner of the lower stories of a house could hardly shut out persons living in the upper, of which there was another proprietor, from the use of the stairs. A river is one. As those who live on the upper waters would have no right to divert the stream, so those on the lower cannot rightfully exclude them from its

use.

The law of nations has not acknowledged such a right, but has at length come to the same result by opening, in succession, the navigation of nearly all the streams flowing through the territory of Christian nations to those who dwell upon their upper waters, or even to mankind. We annex a sketch of the progress of this freedom of intercourse by means of rivers.

Congress of

Rhine, etc.

An Act of the Congress of Vienna, in 1815, declared that the use of streams separating or traversing the terVienna. The ritory of different powers, should be entirely free, and not be denied for the purposes of commerce to any one, being subject only to police rules, which should be uniform for all, and as favorable as might be for the traffic of all nations. Other articles require uniform tolls for the whole length of a stream, and nearly uniform, not exceeding the actual rate, for the various kinds of goods, rights of haulage,

etc.1

By this act the Rhine became free; but a controversy having arisen as to what was to be understood by the Rhine, near the sea, it was decided by the nations having sovereignty over its banks, that navigation should be open through the mouths called the Waal and the Leck, and through the artificial canal of Voorne.

The Scheldt.

The same act opened the Scheldt, which had been closed by the peace of Westphalia to the Spanish Netherlands in favor of the Dutch, and opened by the French on their occupation of Belgium, in 1792. On the divulsion of 1 Articles 108-117 in Martens' Nouv. Rec., ii., 379.

Belgium from Holland, in 1831, the treaty of separation again provided for the free navigation of this river.1

The Danube.

All the other navigable streams of Europe were open to the inhabitants on their banks, either before the treaty of Vienna, or by its general rule above mentioned, with the exception of the Danube. By the treaty of Bucharest, in 1812, and that of Adrianople, in 1829, the commercial use of this stream was to pertain in common to the subjects of Turkey and of Russia. By the treaty of Paris, in 1856, the Danube also came within the application of the rule of the treaty of Vienna, to which Turkey was not an original party. This was the last European stream, the freedom of which was to be gained for commerce.2

While Spain, after the independence of the United States, was mistress of the lower waters of the Mississippi, Mississippi. she was disposed to claim exclusive control over the

navigation near the gulf. But by the treaty of San Lorenzo

1 Compare Wheaton's History, 282-284, 552; Wheaton's Elements, ii., 4, § 15. 2 Five articles of the treaty are concerned with the navigation of the Danube, Articles 15-19. Art. 15 declares the freedom of the stream, according to the Vienna act, as a part of the public law of Europe forever, and prohibits tolls on vessels, and duty on goods, levied on the simple account of the navigation. Art. 16 appoints a commission of delegates from the five great powers with Sardinia and Turkey, to clear out the mouths of the Danube; and, in order to defray the expenses of such improvements, fixed duties, equal in amount for all nations, may be levied. This commission, by Article 18, is to finish its work in two years, and then shall be pronounced to be dissolved. Meanwhile, a permanent commission, by Article 17, is to be appointed, consisting of delegates of Austria, Bavaria, Turkey, and Wurtemberg, to which a commission from the three Danubian principalities is to be joined, who shall draw up rules of navigation and fluvial police, remove remaining obstacles, cause works necessary for the navigation to be executed along the whole course of the river, and when the first mentioned commission shall be dissolved, shall see that the mouths of the river are kept in good order. Art. 19 allows each of the contracting powers at all times to station two light vessels at the mouth of the Danube, for the purpose of assuring the execution of regulations settled by common consent. For the act of navigation of the Danube, growing out of Art. 17, above mentioned, see Murhard, Nouv. Rec., xvi., 2, 75. In the treaty of Berlin of 1878, the permanent commission above spoken of is continued. The removal of obstacles to navigation, caused by the Iron Gates and cataracts, is intrusted to Austria-Hungary. The commission can exercise its powers as far as to Galatz. No ships of war shall navigate the streams below the Iron Gates. Roumania and Servia have a seat in the commission.