large commerce is carried on, exceeding in many instances the entire commerce of states on the borders of the sea. When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded. So also, by the common law, the doctrine of the dominion over and ownership by the crown of lands within the realm under tide waters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable; 'tide waters' and 'navigable waters,' as already said, being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations."

"22

SAME-RIVERS.

39. (a) A state has exclusive jurisdiction over rivers wholly within its boundaries.

(b) When a river flows through two or more states, each state has jurisdiction over that part wholly within its boundaries.

(c) When a river flows between two states, each state, in ab

sence of other agreement, has jurisdiction to the middle of the river, or in case of a navigable river to the middle of the main channel, or thalweg.

22 Illinois Central Railroad v. Ilinois, Id.

Jurisdiction over rivers should be distinguished from the subject of navigation of rivers. Jurisdiction gives to the state entitled to it the right to exercise state authority within its limits. This control may be subject to certain restrictions as in case of rights to navigate a navigable stream. The general principle is that the jurisdiction over a river is in the riparian

state or states.

(a) Rivers which are wholly within the boundaries of one state can have no divided jurisdiction, but are subject to its exclusive jurisdiction. To such rivers the state can apply any regulations at will, unless rights have been waived by international agreements. In speaking of the Hudson river in 1892, Secretary Foster said that certain foreign claims in regard to its use ignored "the salient fact that the Hudson river is a natural water way, rising and lying wholly within the territory of the United States, and in no sense an international water course, to which the riparian rules of international law are applicable." 28

(b) A river, whose course is partly within the boundaries of one state and partly within the boundaries of another, is for each part within the jurisdiction of the state within which that part may flow. It is considered that a state nearer the mouth of a river has a right to demand that a state nearer the source shall not deprive it of rights which it has in the flow of water, and, though the state or states nearer the source have a right to reasonable use of flowing water, they have not a right to appropriate the water to the undue injury of the state below.24

(c) "When a navigable river constitutes the boundary between two independent states, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The interest of each state in the navigation of the river admits of no other line. The preservation by each of its equal right in the navigation of the stream is the subject of paramount interest. It is, therefore, laid down in all the recognized treatises on international law of modern times that the middle of the chan

28 Foreign Relations U. S., 1892, p. 337.

24 1 Moore, § 132, p. 653; State of Kansas v. State of Colorado et al. (1907) 206 U. S. 46, 27 Sup. Ct. 655, 51 L. Ed. 956.

nel of the stream marks the true boundary between the adjoining states, up to which each state will, on its side, exercise jurisdiction. In international law, therefore, and by the usage of European nations, the term 'middle of the stream,' as applied to a navigable river, is the same as the middle of the channel of such stream." 25 When a river is not navigable, it is held that the jurisdiction of the states upon the opposite banks extends to the middle of the stream.

When the river suddenly changes its course and seeks a new channel, the limits of jurisdiction remain at the middle of the old channel. The limits of jurisdiction are, however, liable to gradual change through the change of the course of the stream by the deposit of alluvial formation. In such case the losses and gains would ordinarily be equivalent.

Questions of a more complicated nature may arise when the states upon opposite banks of a boundary river wish to divert a portion of the water. In 1897 the Swiss Federal Court decided that the canton of Schaffhausen had no jurisdiction over the southern half of the waterfall of the Rhine, which the canton of Lurich wished to exploit for power. This did not, however, define the respective rights of the two cantons. Professor Huber was asked for an opinion upon this phase of the relations of the two cantons. In this opinion he says:

"The text-writers, the practice of courts, and particularly the intercantonal and international practice, agree on the whole that each riparian owner has on principle full control over onehalf of the river, and, therefore, may grant concessions for works located exclusively on its side, but that the adjoining state has an international right of protest, which cannot be lost through conflicting private rights, against all measures which may affect its territory injuriously. Joint action, though not a joint granting of concessions, is necessary in all cases where a single establishment affects both territories. With respect to rights in the river both riparian states stand upon an absolute equality." 20

25 Iowa v. Illinois, 147 U. S. 1, 13 Sup. Ct. 239, 37 L. Ed. 55. 26 Translated in 1 A. J. I. p. 246.

NAVIGATION.

40. (a) The high seas beyond the marine league are open to the free navigation of all states.

(b) There is a qualified right of navigation in most other waters.

(a) While there were attempts to control the navigation of the open seas in early days, in recent years the principle of free navigation has not been questioned, though a certain degree of control over the high seas is claimed and admitted for revenue and sanitary purposes as regards vessels approaching port.

(b) The navigation of other waters is usually subject to a measure of jurisdiction varying according to the nature of waterway and of local control. Where there is what may be called a general or special right of navigation by other states of waters within the domain of a state, it partakes of the nature of a servitude.

Marginal Sea.

Within the three-mile limit innocent passage of vessels sailing the open sea is uniformly permitted. In time of war restrictions may be prescribed in regard to conduct within this limit. In the time of peace the coast state may prescribe regulations in regard to trade, fishing, revenue, pilotage, quarantine, ceremonials, etc., to which vessels coming within the jurisdiction may be obliged to conform. Foreign vessels simply passing through the marginal sea are not usually regarded as liable to the local jurisdiction unless involved in some act which takes effect outside the vessel.

Gulfs and Bays.

In general there are the same rules for navigation of gulfs and bays as for the marginal sea. The navigation of waters in the neighborhood of fortifications is sometimes forbidden or regulated.

Straits.

The general rule is that straits connecting free seas are open to innocent navigation.

Denmark for several centuries collected toll on vessels and cargoes passing between the North and Baltic Seas, and justi

fied this action on the ground of ancient usage, and on the ground of keeping up the lights and police of the Danish Sounds. These tolls were known as the "Danish Sound Dues." The European states in 1857 paid Denmark a sum in capitalization of the dues, while at the same time the United States paid $393,011 in consideration that Denmark would secure free and unincumbered navigation of American vessels through the Sound and Belts forever.27

While the Black Sea was wholly within Turkish jurisdiction, the navigation of the Bosphorus and Dardanelles was in the control of Turkey. From 1774 treaties opened the straits to navigation by merchant vessels. The exclusion of war vessels was accepted by Austria, France, Great Britain, Prussia, and Russia in the Convention of London in 1841, and again confirmed by the Treaty of Paris, 1856, though by the Treaty of London, 1871, the Sultan may, for executing the Treaty of Paris of 1856, "open the said straits in time of peace to the vessels of war of friendly and allied powers." The United States, though not a party to these treaties, has acquiesced in their provisions.28 Great Britain protested against the passage of the Straits in 1902 by Russian torpedo destroyers, even though disarmed and under the Russian merchant flag. On July 28, 1904, Mr. Balfour in the British House of Commons said of the vessels of the Russian volunteer fleet which passed the Dardanelles: "We took the strongest possible exception to that course on the ground that no ship of war could issue from the Black Sea, and that in our judgment the members of the volunteer fleet, if they issued from the Black Sea and took belligerent action, either had no right to issue or no right to take that action."

Canals.

Canals are artificial waterways. They are constructed within the jurisdiction of a state or states, and in absence of international agreement are subject to the jurisdiction within which they may be.

Certain canals are almost wholly national in character, and while shortening somewhat the routes of commerce, as af

27 Article III, Treaty of April 11, 1857.

28 1 Moore, § 134, p. 664.