$14. These rights im perfect in their na ture. $15. Modification of by com pact. The incidental right, like the principal right itself, is imperfect in its nature, and the mutual convenience of both parties must be consulted in its exercise. Those who are interested in the enjoyment of these rights may renounce them entirely, or consent to modify them in these rights such manner as mutual convenience and policy may dictate. A remarkable instance of such a renunciation is found in the treaty of Westphalia, confirmed by subsequent treaties, by which the navigation of the river Scheldt was closed to the Belgic provinces, in favour of the Dutch. The forcible opening of this navigation by the French on the occupation of Belgium by the arms of the French Republic in 1792, in violation of these treaties, was one of the principal ostensible causes of the war between France on one side, and Great Britain and Holland on the other. By the treaties of Vienna, the Belgic provinces were united to Holland, under the same sovereign, and the navigation of the Scheldt was placed on the same footing of freedom with that of the Rhine and other great European rivers. § 16. Treaties of By the treaty of Vienna in 1815, the commercial navigation of rivers, which separate different states, or flow through specting their respective territories, was declared to be entirely free the great European in their whole course, from the point where each river becomes navigable to its mouth; provided that the regulations relating to the police of the navigation should be observed, which regulations were to be uniform, and as favourable as possible to the commerce of all nations.22 rivers. By the Annexe xvi. to the final act of the congress of Vienna, the free navigation of the Rhine is confirmed "in its whole course, from the point where it becomes navigable to the sea, ascending or descending;" and detailed regulations are provided respecting the navigation of that river, and the Neckar, the Mayn, the Moselle, the Meuse, and the Scheldt, which are declared in like manner to be free from the point 22 Acte Final du Congrès de Vienne, art. 14, 96, 109. where each of these rivers becomes navigable to its mouth. Similar regulations respecting the free navigation of the Elbe -were established among the powers interested in the commerce of that river, by an act signed at Dresden the 12th December, 1821. And the stipulations between the different powers interested in the free navigation of the Vistula and other rivers of ancient Poland contained in the treaty of the 3d May, 1815, between Austria and Russia, and of the same date between Russia and Prussia, to which last Austria subsequently acceded, are confirmed by the final act of the congress of Vienna. The same treaty also extends the general principles adopted by the congress relating to the navigation of rivers to that of the Po.23 § 17. Navigation The interpretation of these stipulations respecting the free navigation of the Rhine gave rise to a controversy between of the the kingdom of the Netherlands and the other states inte- Rhine. rested in the commerce of that river. The Dutch government claimed the exclusive right of regulating and imposing duties upon the trade, within its own territory, at the places where the different branches into which the Rhine divides itself fall into the sea. The expression in the treaties of Paris and Vienna “jusqu'à la mer," to the sea, was said to be different in its import from the term "into the sea :" and besides, it was added, if the upper states insist so strictly upon the terms of the treaties, they must be contented with the course of the proper Rhine itself. The mass of waters brought down by that river, dividing itself a short distance above Nimiguen, is carried to the sea through three principal channels, the Waal, the Leck, and the Yssel: the first descending by Gorcum, where it changes its name for that of the Meuse ; the second approaching the sea at Rotterdam; and the third, taking a northerly course by Zutphen and Deventer, empties itself into Zuyderzee. None of these channels, however, is called the Rhine; that name is preserved to a small stream which leaves the Leck at Wyck, takes its course by the 23 Mayer, Corpus Juris Germanici, tom. ii. p. 224-239, 298. Acte Final, art. 14, 118, 96. learned retreats of Utrecht and Leyden, gradually dispersing and losing its waters among the sandy downs at Kulwyck. The proper Rhine being thus useless for the purposes of navigation, the Leck was substituted for it by common consent of the powers interested in the question; and the government of the Netherlands afterwards consented that the Waal, as being better adapted to the purposes of navigation, should be substituted for the Leck. But it was insisted by that government that the Waal terminates at Gorcum, to which the tide ascends, and where consequently the Rhine terminates; all that remains of that branch of the river from Gorcum to Helvoetsluys and the mouth of the Meuse is an arm of the sea, enclosed within the territory of the kingdom, and consequently subject to any regulations which its government may think fit to establish. On the other side, it was contended by the powers interested in the navigation of the river, that the stipulations in the treaty of Paris in 1814, by which the sovereignty of the House of Orange over Holland was revived, with an accession of territory, and the navigation of the Rhine was, at the same time, declared to be free, “from the point where it becomes navigable to the sea," were inseparably connected in the intentions of the allied powers who were parties to the treaty. The intentions thus disclosed were afterwards carried into effect by the congress of Vienna, which determined the union of Belgium to Holland, and confirmed the freedom of navigation of the Rhine, as a condition annexed to this augmentation of territory which had been accepted by the government of the Netherlands. The right to the free navigation of the river, it was said, draws after it, by necessary implication, the innocent use of the different waters which unite it with the sea; and the expression "to the sea” was in this respect equivalent to the term "into the sea," since the pretension of the Netherlands to levy unlimited duties upon its principal passages into the sea would render wholly useless to other states the privilege of navigating the river within the Dutch territory.24 24 Annual Register for 1826, vol. lxviii. p. 259–263. After a long and tedious negotiation, this question was finally settled by the convention concluded at Mayence the 31st of March, 1831, between all the ripuarian states of the Rhine, by which the navigation of the river was declared free from the point where it becomes navigable into the sea, (bis in die See,) including its two principal outlets or mouths in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel through the first-named watercourse, and by Dortrecht and Helvoetsluys through the latter, with the use of the artificial communication by the canal of Voorne with Helvoetsluys. By the terms of this treaty, the government of the Netherlands stipulates, in case the passages by the main sea by Briel or Helvoetsluys should at any time become innavigable, through natural or artificial causes, to indicate other watercourses for the navigation and commerce of the ripuarian states, equal in convenience to those which may be open to the navigation and commerce of its own subjects. The convention also provides minute regulations of police and fixed toll-duties on vessels and merchandise passing through the Netherlands territory to or from the sea, and also by the different ports of the upper ripuarian states on the Rhine.25 $ 18. of the Mis By the treaty of peace concluded at Paris in 1763, between France, Spain, and Great Britain, the province of Ca- Navigation nada was ceded to Great Britain by France, and that of sissippi. Florida to the same power by Spain, and the boundary between the French and British possessions in North America was ascertained by a line drawn through the middle of the river Mississippi from its source to the Iberville, and from thence through the latter river and the lakes Maurepas and Pontchartrain to the sea. The right of navigating the Mississippi was at the same time secured to the subjects of Great Britain from its source to the sea, and the passages in and out of its mouth, without being stopped or visited, or the payment of any duty whatsoever. The province of Louisiana was soon afterwards ceded by France to Spain; and by the 25 Martens, Nouveau Recueil, tom. ix. p. 252. treaty of Paris, 1783, Florida was retroceded to Spain by Great Britain. The independence of the United States was acknowledged, and the right of navigating the Mississippi was secured to the citizens of the United States and the subjects of Great Britain by the separate treaty between these powers. But Spain having become thus possessed of both banks of the Mississippi at its mouth, and a considerable distance above its mouth, claimed its exclusive navigation below the point where the southern boundary of the United States struck the river. This claim was resisted, and the right to participate in the navigation of the river from its source to the sea was insisted on by the United States, under the treaties of 1763 and 1783, as well as the law of nature and nations. The dispute was terminated by the treaty of San Lorenzo el Real, in 1795, by the 4th article of which his Catholic Majesty agreed that the navigation of the Mississippi, in its whole breadth, from its source to the ocean, should be free to the citizens of the United States: and by the 22nd article, they were permitted to deposite their goods at the port of New Orleans, and to export them from thence, without paying any other duty than the hire of the warehouses. The subsequent acquisition of Louisiana and Florida by the United States having included within their territory the whole river from its source to the Gulf of Mexico, and the stipulation in the treaty of 1783, securing to British subjects a right to participate in its navigation, not having been renewed by the treaty of Ghent in 1814, the right of navigating the Mississippi is now vested exclusively in the United States. The right of the United States to participate with Spain in the navigation of the river Mississippi was rested by the American government on the sentiment written in deep characters on the heart of man, that the ocean is free to all men, and its rivers to all their inhabitants. This natural right was found to be universally acknowledged and protected in all tracts of country, united under the same political society, by laying the navigable rivers open to all their inhabitants. When these rivers enter the limits of another society if the right of the upper inhabitants to descend the stream was in any case ob |