ingly by the practice of Nations, that a Nation having physical possession of both banks of a river is held to be in juridical possession of the stream of water contained within its banks, and may rightfully exclude at its pleasure every other Nation from the use of the stream, whilst it is passing through its territory, and this rule of Positive Law holds good whatever may be the breadth of a river. Moreover, the fact, that other Nations have freely navigated the stream before both banks of a river have come into possession of one and the same Nation, will not control the operation of this rule. Thus the recognition of the Independence of the Seven United Provinces by the peace of Munster on the part of Spain" (Jan. 30, 1648) carried with it the recognition of their right to close the navigation of the River Scheldt in all its branches within their territory. The same rule was applied to the stream of the Mississippi, below the point where the Southern Boundary of the United States struck that river, by Spain, after the Spanish Nation had acquired possession of both banks, although the navigation of the entire river had been previously common to all Nations whilst it formed a common Boundary of the French and British Possessions. The United States of North America contested at first the claim of Spain, but were fain to conclude the dispute by the Convention of San Lorenzo el Real, 12 under which the free navigation of the entire river was conceded by Spain to citizens of the United States in common with subjects of Spain. At a subsequent period after Louisiana and Florida had been ceded to the United States, the entire river became included within the Territory of the North 11 Schmauss, Corp. Jur. Gent. I. p. 618. 12 Martens, Recueil, VI. p. 146. American Union; the United States have thereupon asserted in their turn their Right of Exclusive Use over the entire stream, and have, in virtue of their Right of Possession, prohibited all other Nations from the navigation of any portion of the river. In a similar manner Great Britain maintains her exclusive right over the stream of the St. Lawrence during its passage through British Territory. By the Treaty, however, of Washington 13 (5 June, 1854), Great Britain has agreed, that the citizens and inhabitants of the United States shall have the right of navigating the river St. Lawrence and the canals in Canada used as the means of communication between the great Lakes and the Atlantic Ocean, as fully and freely as the subjects of her Britannic Majesty, 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 may be observed in regard to this Right of Exclusive Use, which a Nation that is in possession of both banks exercises over the stream of a navigable river, that a Nation so established has a physical power of constantly acting upon the stream, and of excluding at its pleasure the action of any other Nation, which power constitutes Juridical Possession. On the other hand the stream, whilst it is included within the territory of a Nation, cannot be considered to be destined by the Creator to continue open to the common use of mankind any more than the banks and adjacent lands, which have been appropriated and so withdrawn from common use. Nature would thus appear to have interposed neither a material 13 Martens, N. R. Gén. Tom. XVI. p. 502. This Convention is to remain in force for ten years, and further, until the expi ration of twelve months after either Nation shall give notice to the other of its wish to terminate the same. Modifica tions by obstacle nor a moral impediment to the exclusive use of a navigable river on the part of a Nation within certain territorial limits. That a river, whilst it flows through the territory of a Nation, should be regarded in any other light than as part of its Possessions, would seem to be inconsistent with the integrity of its territory, whilst it might be incompatible with its security, if the use of the river was not subject to its exclusive control. § 142. The exercise on the part of a Nation of its Compact. right to exclude other Nations from the use of its territorial waters has often been modified either expressly or implicitly by Compact. Thus Spain, being in possession of both banks of the river Mississippi for some distance upwards from the sea, conceded to the citizens of the United States by the Treaty of San Lorenzo el Real, (anno 1795,) the free navigation of the river, from its source to its mouth, reserving however the power to extend the same privileges to the subjects of other Powers by a Special Convention. In a similar manner it was agreed between Great Britain and the United States by the Eighth Article of the Treaty of Paris (17th Sept. 1783),14 "that the navigation of the river Mississippi, from its source to the Ocean, should for ever remain free and open to the subjects of Great Britain and the citizens of the United States." "The subsequent acquisition," writes Wheaton, "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 14 Martens Recueil, III. p. 559. in 1814, the right of navigating the Mississippi is now vested exclusively in the United States."15 Thus over Fron $143. A Nation which has established itself on Empire one of the banks of a river, prior to the occupation of tier Rivers. the opposite bank by any other Nation, may, with a view to its own security, reduce the channel of the river into possession without occupying the other bank. 16 It may for this purpose either station an armed fleet upon its waters, and thereby occupy the fairway of the river, or it may erect armed forts upon its own bank, and thereby command the fairway, and in either case it will be able effectively to exclude other Nations from the use of the river. the Romans became sole masters of the Rhine, the Danube, and some other rivers, because the barbarians who inhabited on the other bank having no boats, the Romans constantly kept what they called "naves lusoriæ" upon them. So likewise the Republic of Paraguay in South America has established its possession of the channel of the river Paraguay which separates the territory of Paraguay from El Gran Chaco," and the Republic of Paraguay claims by right of established possession to exclude not merely the Indians of El Gran Chaco who inhabit the opposite bank, but Nations of European origin, such as the Brazilian Nation which possesses the upper part of the river, and the Argentine Confederation which is in possession of the lower part of the river, from navigat 15 Wheaton's Elements, Part II. c. 4. § 18. 16 Wolffii Jus Gentium, § 106. Vattel, Droit des Gens, L. I. § 266. 17 The Indians of the Chaco have no canoes. The river throughout the extent of Paraguay is occupied by a river-po lice stationed by the government Treaty Stipulations tier Rivers. ing that portion of the river which separates the Republic of Paraguay from the territory of the warlike Chaco tribes, 18 That a Nation which is settled on one of the banks of a river may nevertheless have a Right of Empire over the entire river, is thus noticed by Grotius. “But though, as I have said in case of any doubt, the jurisdictions on each side reach to the middle of the river that runs between them, yet it may be, and in some places it has actually happened, that the river belongs wholly to one party, either because the other Nation had not yet possession of the other bank till later, when their neighbours were already in possession of the whole river, or else because matters were so stipulated by some treaty.' The sanction, which Usucaption or established possession in such a case gives to the claim of a Nation to exclude other Nations from the use of a river, has not been overlooked by Vattel: "A long and undisputed possession establishes the Right of a Nation, otherwise there could be no peace, no stability between them, and notorious facts must be admitted to prove Possession. Thus, when from time immemorial a Nation has without contradiction exercised the Sovereignty upon a river which forms its boundary, nobody can dispute with that Nation the supreme dominion over it. 20 " 19 §144. Grotius has remarked that a Riverain State as to Fron- may have jurisdiction over the entire channel of a river, to the exclusion of other Riverain States, "because matters have been so stipulated by some Treaty.' A remarkable instance of this occurs in the Treaty of 18 The warlike Chaco tribes have alone, amid the degradation of the native races upon the American Continent, defied for more than three centuries the power of the white man. 19 De Jure B. et P. L. II. c. 3. $18. 20 Droit des Gens, L. I. § 166. |