international power which can institute condemnation proceedings for the establishment of a right of way. In the international society each nation is the judge and prosecutor of its own rights. Still the rights possessed by the nation are determined largely by the same principles of natural justice, as those which determine the rights of individuals in an organized political society. And we may reasonably claim that the moral principle upon which the state may claim a right of way over an individual estate is not fundamentally different from that upon which the world at large may justly claim a right to pass over a natural line of commerce within a nation's dominion.

§ 3. THE OPINIONS OF PUBLICISTS ON INTERNATIONAL LAW

But if we would consider more definitely the question before us we must appeal to something more conclusive than the analogies afforded by the municipal law. We must look to the principles of the international law itself, and to the considerations of justice by which international relations are determined. To ascertain these principles we may consult the authority of certain great text-writers whose opinions have carried with them unusual weight in determining the justice of international relations. We shall find in the writings of these jurists the expression of definite opinions in respect to the relativity of the right of national dominion, and the extent to which the jurisdiction of one country over its territory may be qualified by the rights and interests of other nations.

Grotius, who still retains the honor of being the founder of international law as a science, deduces the

right of national property and dominion from that primitive condition of mankind in which all things were common, and declares that the institution of property has not entirely destroyed the original and equitable rights which were common to all. “Let us consider," he says, "whether men have a common right to those things which are already made private property. Some may think this is a strange question, since property seems to have absorbed all the rights which flowed from the common state of things. But this is not so. For we must consider what was the intention of those who introduced private property; which we must suppose to have been to recede as little as possible from natural equity. . . . And so land and rivers and any part of the sea which is become the property of any people, ought not to be shut against those who have need of transit for just cause. .. Transit is to be granted not only to persons, but to merchandise; for no one has a right to impede one nation in cultivating trade with another remote nation; for it is of advantage to the human race that such intercourse should be permitted." (Grotius, De Jure Belli ac Pacis, Bk. II, ch. 3.)

Vattel, whose authority is perhaps more often quoted than that of any other great publicist, expounded more fully the principle laid down by Grotius regarding the relativity of the right of national domain, emphasizing what he calls "the rights retained by all nations after the introduction of domain and property. . . . The introduction of property cannot be supposed to have deprived nations of the general right of traversing the earth for the purpose of mutual intercourse, of carrying on commerce with each other, and for other just reasons. It is only on particular

occasions when the owner of a country thinks it would be prejudicial or dangerous to allow a passage through it, that he ought to refuse permission to pass. He is therefore bound to grant a passage for lawful purposes, whenever he can do it without inconvenience to himself. And he cannot lawfully annex burdensome conditions to a permission which he is obliged to grant and which he cannot refuse if he wishes to discharge his duty and not abuse his right of property."

In regard to the jurisdiction, for example, over straits, Vattel says: "That when they serve as a communication between two seas, the navigation of which is common to all or several nations, the nation which possesses the strait cannot refuse to others a passage through it, provided that passage be innocent and attended with no dangers to herself. By refusing it without just reasons, she would deprive those nations of an advantage granted them by nature." (Vattel, Law of Nations, Bk. I, ch. 23; Bk. II, chs. 2, 9, 10.)

It must not be supposed that the above quotations from such venerable writers are intended to indicate what has been accepted as the positive law of nations. They do, however, express the highest authority regarding the fundamental rights and duties of nations in respect to one another. In other words, they declare the principles of justice and equity which form the basis of international law. These writers, who belong to what is called the "rational school," treated law from an ethical point of view; and, hence, their views are often chiefly valuable as expressing the moral duties of nations rather than their legal rights. It may be claimed that the opinions of text-writers do not constitute an ultimate authority in respect to

international rights, that while their opinions may indicate what are the principles of international justice, they do not establish the positive rules of international law. This claim cannot be denied. No publicist, however distinguished he may be, possesses the authority to legislate for the world. It is entirely true that the principles of international justice are legally binding only so far as they have been sanctioned by the consent of nations. It is also true, however, that the principles of justice furnish a proper basis for a nation's policy in its dealings with other nations, and for insisting by diplomatic means upon a recognition of its own natural rights and essential interests. It is furthermore true, that, as the result of diplomatic claims and negotiations, the principles of justice have gradually received the assent of nations and been embodied in positive international law in the form of treaties and conventions.

§ 4. PRECEDENTS OF INTERNATIONAL TREATIES AND CONVENTIONS

It remains for us, therefore, to inquire how far the principle under discussion-namely, that the right of a nation's jurisdiction over its own territory is qualified by the right of commercial transit which according to justice is due to other nations-has been accepted in international practice and sanctioned by international treaties. The examples of this sanction are so numerous that it is possible to select only a few cases, which are more or less familiar to every student of international history.

The first and most patent illustration of the fact that mankind retains certain common rights which

cannot justly be appropriated by one nation to the exclusion of others, is seen in the futile attempts once made to exercise an exclusive jurisdiction over the sea. The pretentious claims of Venice to the Adriatic, of England to the neighboring seas, of Portugal to the Gulf of Guinea, and the Indian Ocean, of Holland to the route by way of the Cape of Good Hope to the Philippine Islands, have now scarcely more than an historical interest. The growth of the world's commerce has dissipated these claims, and has shown that the transit over the sea, at least, is a right common to all nations-a right which has become sanctioned by universal consent and incorporated into the body of international law.

The attempt of certain countries to assume exclusive control over the narrow seas and the straits connecting navigable waters, or to place obstructions to the free use of such lines of commerce, has also led to the protest of other countries and to the abandonment of such attempts. The claim of England to the dominion of the British channel called forth the famous discussion between Selden and Grotius, and provoked a vigorous protest on the part of France, resulting in a war between France and England and the ultimate abandonment of the British claim.

The exclusive jurisdiction over the straits connecting the Baltic and the North sea was formerly claimed by Denmark, a claim based upon immemorial prescription and also upon treaty recognition. As a result of this claim, Denmark imposed exorbitant tolls upon all vessels passing through these straits. With the growth of modern commerce these exactions became increasingly irksome, and aroused in other na