el Real, in 1795, the use of the stream with liberty to deposit goods at and export them from New Orleans, was granted to citizens of the United States. Before this the question of the rights of the parties had been agitated between them. The United States had contended that there is a natural right belonging to the inhabitants on the upper waters of a stream, under whatever political society they might be found, to descend by it to the ocean. It was acknowledged, on the part of the United States, that this was, at the most, an imperfect right, and yet the right was claimed to be as real as any other, however well-defined, so that its refusal would constitute an injury, for which satisfaction might be demanded. There seems to be a weakness in this argument, for by admitting the right to be an imperfect one, the claim of injury for not complying with it was cut off. In 1803, Louisiana, which had been ceded by Spain to France in 1800, was purchased of the latter by the United States, which thus had the territorial jurisdiction over all the course of the river.1 St. Lawrence. The The St. Lawrence, after separating for a great distance the British possessions from those of the American Union, traverses British territory to the sea. government of Great Britain, for a long time, steadily refused to concede the right of using the lower stream for the purposes of navigation, and the same diplomatic controversy was carried on, as in the case of the Mississippi, between the right according to the strict law of nations, and the claim on the principles of natural justice. Meanwhile, canals and railroads having bound the western part of the Union to the Atlantic seaboard, and New York having become a financial centre even for the Canadas, the importance of the question was greatly lessened. By the reciprocity treaty of June 5, 1854, the navigation of the river, as well as of the canals in Canada, was at length thrown open to the United States, on the same conditions which are imposed on the subjects of Great Britain. This privilege may be revoked by the latter party upon due 1 Compare Appendix ii., under the year 1803. notice. On their part the United States granted to British subjects the free navigation of Lake Michigan. rivers. The vast system of streams which find their way to the sea by means of the La Plata is open for navigation, not La Plata only to the inhabitants of the banks, but also in a system of great degree to strangers. The Argentine Republic opened its river navigation by treaties with France, Great Britain, and the United States, in 1853; and by a treaty with Brazil, in 1857, proclaimed that the Parana, the Paraguay, and the Uraguay, from their entrance into the La Plata to interior ports, opened or to be opened by the riparian states, should be accessible to the commerce and vessels of all nations. (Comp. Calvo, i., 344.) Uruguay, in 1853, made its rivers free to all nations, and granted to France and England the free navigation of the Paraguay, as far as to Assumption. Paraguay made similar treaties with the same powers in the same year, and in 1859 with the United States. Bolivia did the same the year before. Brazil, in a treaty of 1851 with Peru, agreed to apply to the navigation of the Amazon the principles of the Congress of Vienna, relating to river navigation. But not until a number of years afterward was this decree brought to fulfillment. In December, 1866, besides the San Francisco and the Tocantins, a branch of the Amazon running wholly within Brazilian territory, the Amazon itself to the frontiers was declared to be open to all nations from and after September 7, 1867. Its tributaries, the Tapajos, the Madeira, and the Rio Grande, are also opened, but not through the upper part of their course, where only one bank belongs to the Brazilian empire. (Comp. Calvo, i., 345, 346, and Dipl. Corresp. of the United States for 1867, 1868, ii., 256. The Stikine, Yukon, and Porcupine rivers of Alaska, rising in British and running into our territory, were opened to both nations by the treaty of Washington in 1871. Such have been the advances in the freedom of navigation during the last forty years. There is now scarcely a river in the Christian portions of the world, the dwellers on whose upper waters have not the right of free communication, by God's channels, with the rest of mankind. Whether the motive which brought this about has been self-interest or sense of justice, an end approved alike by justice and benevolence has been reached, and the world cannot fail to be the gainer. Intercourse of states, how far a WE have already come to the conclusion that sovereignty in the strictest sense authorizes a nation to decide upon what terms it will have intercourse with foreigners, and even to shut out all mankind from its right. borders. (§ 25.) If a protective tariff, or the prohibition of certain articles is no violation of rights, it is hard to say how far one state may not go in refusing to have commerce with another. If foreigners may be placed under surveillance, or may have various rights of citizens refused to them, why may they not be excluded from the territory? If it be said that the destination of separate states, as of separate families, is to be helpful to one another, that entire isolation is impossible, still the amount of intercourse must be left to the judgment of the party interested; and if a state, judging incorrectly, strives to live within itself as much as possible, is it to be forced to change its policy, any more than to modify its protective tariff? And yet some kind of intercourse of neighboring states is so natural, that it must have been coeval with their foundation, and with the origin of law; it is so necessary, that to decline it, involves often extreme inhumanity; it is so essential to the progress of mankind, that unjust wars have been blessings when they opened nations to one another. There could, of course, be no international law without it. The fol lowing maxims relating to the so-called right, are, in substance, laid down by Heffter. (§ 33 of his "Völckerr.," 5th ed.) may not do as it respects intercourse. 1. Entire non-intercourse shuts a nation out from being a What a state partner in international law. - [This, however, is not true, if international law is taken in its broadest sense, for to treat a nation, or its subjects, when these latter are fallen in with, as having no rights, because they have no intercourse with us, is not only inhuman but unjust.] 2. No nation can, without hostility, cut off another from the use of necessaries not to be obtained elsewhere. [But necessaries must not be confounded with articles highly desirable.] 3. No state has a right to cut another off from the innocent use of its usual ways of communication with a third state. "The older writers called this the jus transitus, or jus passagii innoxii, but disputed whether it is a perfect or imperfect right. Only necessary wants create a definite right. The refusal of something merely useful to one party, to grant which does the other no harm, is at most an unfriendly procedure. Many, as Grotius (ii., 2, § 13), and Vattel (ii., §§ 123, 132134), decide, that there is a right in this case, but naturally have to reserve for the owner the decision whether he will be harmed or not by parting with his commodities." 4. No state can, without violation of right, exclude another from intercourse with a third state against the will of the latter. 5. In its intercourse with others every state is bound to truth and honesty [without which intercourse must be broken up]. 6. No state in peace can exclude the properly documented subjects of another friendly state, or send them away after they have been once admitted, without definite reasons which must be submitted to the foreign government concerned. To these we may add that No state can withdraw from intercourse with others without a violation of a right gained by usage. |