2nd article of the general regulations for the free navigation of rivers l), and in the ïst article of the annexe „concerning the navigation of the Rhine" *), and consequently that the prohibition of free passage to any particular species of goods in transit cannot be legally effected by any one of the river states, and it may even be doubted whether all bordering states together would be competent under these stipulations (in that form at least, however they might be able practically to effect the same result) to decree prohibition, because such an act would be manifestly unf avourable to the commerce of other nations.
It may, indeed, and I doubt not will be said by this government that this reasoning would equally militate against the exaction of transit duties, but this is not so: a free port does not exclude the perception of duties; the duty arises on the sea, not on the river, and to declare that such and such articles shall be prohibited from entering the river with aview to passing into another state is to arrogate a control over the interna! affairs of that state, which however admitted in similar cases prior to the act of Congress, it was one of the special objects of that great treaty to prevent in future. But then it will be said that if the right of exacting a transit duty is recognised, it follows as of course that the prohibitory power exists through the medium of a prohibitory duty. But neither is this so. To argue from the use to the abuse of a right is not admissible; the maxim that a right pushed to the extreme becomes an injury is a maxim of the law of nation. If the king of Denmark, for instance, should attempt directly to prohibit the entry of particular articles through the Sound into the Baltic or to raise the Sound-dutiesso as to operate the same effect, is it to be argued that all other nations, as well without as within that sea, are to acquiesce in such an assumption of power ? Since the Act f o Congress the reasoning appears to me to be generally the same with respect to the navigation of the riversr elative to which itstipulates.
If Y. L. should see this matter in the light in which I confess it strikes me, I should humbly take the liberty of recommending it to your earliest and most serious consideration. Upon a point of such magnitude it would be impossible for me to stir without being authorised so to do by instructions from H. M.
l) De Martens, Nouveau Recueil, XI, blz. 434. ') Aldaar, II, blz. 436.