Des parties du territoire national qui restent communes, et particulièrement des fleuves et des rivi

CHAP. 12: Of the parts of the national territory that remain common, and particularly of rivers and streams.

It never happens that all the parts of which a great basin is composed are converted into private properties. There are several that, by their nature, are not susceptible of division, or whose partition would almost entirely destroy their utility. There are others that one is obliged to consecrate to communications, and which must, consequently, remain common to all the members of society. Rivers and streams, for example, belong, by their nature, to the mass of the population, and cannot be transformed into private properties [^55]. It is the same with public roads, without which the various fractions into which a nation is divided could neither communicate with one another, nor effect the exchanges necessary for their existence, nor even cultivate their properties. Seaports and harbors remain, like rivers and public roads, in the national domain, and are consecrated to commerce or to the defense of the state. Finally, it often happens that certain parts of the territory, such as forests or pastures, remain in the public domain, or belong to communes, because partition among private individuals would in part destroy the utility they have for the entire population.

Although goods of this kind do not, in general, owe to human industry all the utility we find in them, they render immense services to the nations that possess them; they give to all other goods a considerable part of their value, and are a condition of the existence of the populations that enjoy them. It is important, therefore, to form very exact ideas of the nature of these goods, of the services they render or can render, and of the causes that can destroy them or ensure their duration. Watercourses being the most important of the properties that the members of a nation enjoy in common, it is with them that it is important to begin.

In observing the laws according to which peoples form and develop, I have shown elsewhere that families first move toward the places that furnish them, with the least difficulty, with means of existence. The bays, the banks of rivers, the confluences of streams are the first places occupied, because subsistence is less rare there, communications are easier, and the land is more fertile. It is evident, in effect, that between lands of different qualities, those that furnish the most subsistence with the least labor are always the first that men cultivate. If, to obtain a hectoliter of wheat on lands of a certain quality, only half the labor is needed that lands of a different quality would require to produce a similar quantity, it is clear that the latter will be cultivated only when all the others have been appropriated and put into a state of cultivation [^56].

The lower parts of the basins of rivers and streams being, in general, more productive and of less difficult cultivation than the steep flanks of the mountains, or than the highest plateaus, always contain the most numerous and most industrious populations. The least fertile lands, those that require the most labor and capital to give the least subsistence, are not only the last to be cultivated; they are also those on which is found the most miserable part of the population. As for those that are fit only to serve as pasture, or to produce timber or firewood, they often remain common properties, because human industry can add almost nothing to them, and because they would lose a great part of their value if they were partitioned [^57].It is therefore at the bottom of the basins, and particularly on the banks of rivers or at the confluence of streams, that the great masses of population form; it is there that all kinds of industry and commerce are established and develop: agriculture, manufactures, mills, the arts, and in a word all that multiplies the riches of a people; the streams or rivers that traverse these basins, and which are the most active agents of civilization, remain the common property of the populations they have contributed to forming, because they are necessary for the existence of all, and because they have been produced by no one in particular [^58].

The services that rivers, streams, in a word all the watercourses that traverse its territory, render to a population, consist principally in receiving and carrying away the waters that are discharged, whether from public properties or from private properties, in supplying aqueducts or canals, in watering the riparian lands, in putting mills in motion, in transporting foodstuffs, merchandise, or objects necessary for cultivation, in watering men and animals, in preparing their foods, and in a host of other uses that it is useless to enumerate [^59].

It is with rivers, relative to the populations whose property they are, as with the things that belong to all peoples, such as the air, the light, the waters of the seas; each can make use of them for his particular needs, but on the condition of not hindering the use of others. The care that an administration takes to guarantee to each the free enjoyment of this kind of good, and consequently to prevent them from being deteriorated to the prejudice of the public, is what principally distinguishes a well-ordered nation from one that is not. In countries where no institution guarantees the interests of all, attacks executed for the profit of a few, as were all the states of Europe under the feudal regime, and as are still the countries subject to the domination of the Turks, public properties are always the first to be invaded or to perish for lack of maintenance. Properties of this kind are, on the contrary, as well guaranteed as those that belong to private individuals, among all peoples who are subject to a sound public administration [^60].

There are rivers and streams whose basins belong to different states, independent of one another: such are the Po, the Rhine, the Main, the Neckar, the Ems, and some others. When such territorial divisions are encountered, one is sooner or later obliged, by the force of things, to recognize that the use of rivers is a common right of all the populations that occupy their basin. Each of them has the right to make use of it, whether to carry away the waters that fall on its territory, or to send down to the sea the products of its agriculture or its manufactures, or to have arrive in its country the products of the territory and industry of other nations. It is thus that, by the Treaty of Paris of 30 May 1814 and by the act of the Congress of Vienna of 9 June 1815, the principal powers of Europe proclaimed the principle of the free navigation of the rivers and streams that traverse the territory of several nations, from the sea to the point where they cease to be navigable [^61].

From the fact that rivers and streams belong to the various populations that have developed in their basins, it results that no one may be permitted to weaken, slow down, or accelerate their course, in such a way as to harm navigation or the riparian properties, to make works or constructions on them, or to deposit materials there that would render navigation more difficult, that would corrupt their waters, or that would cause the fish to perish.

Watercourses have given rise to a multitude of questions of private interest; and the difficulties that arise between two private individuals can arise between two communes, between two cities, between two nations. According to the principles of Roman law, if a proprietor made on his holding a work as a result of which the neighbors received or were exposed to receiving some damage from rainwater, he could be condemned to restore things to their original state. If, for example, he caused the waters to flow back onto the neighboring lands, if he gave them a course different from their natural course, if he rendered them more considerable, more rapid, more violent, the aggrieved proprietors had the right to demand reparation of the damage caused, and the destruction of the works that had produced it. It was not even necessary for the harm to be consummated to bring an action: it sufficed that the danger had become imminent [^62].

These rules are but applications of a more general principle, that which guarantees to each his own, and which obliges every person to repair the damage he has caused. If they are just when it is a matter of determining relations from private individual to private individual, they cannot fail to be so when it is a matter of fixing the relations that must exist between the various fractions of which a people is composed. The inhabitants of a city who, for their particular advantage, were to form dams on a river, and thus cause the water to flow back onto the upper lands, would certainly give the proprietors of these lands just cause for complaint. Likewise, if the proprietors of the upper lands were to leave a navigable river almost dry, or give it an unaccustomed force; if, by their works, they caused it to take on the characteristics of a torrent, having almost no water at certain times, and having an indomitable violence in others, it is clear that the lower populations would justly complain of such enterprises.

What is true for one private individual with regard to another, and for one fraction of a people relative to the other fractions, is, with all the more reason, true for one nation with regard to others. France, for example, would be no more justified in making dams on the Rhine that would flood a part of the canton of Basel or of the Grand Duchy of Baden, than the proprietor of a field in flooding the upper field, by refusing a passage to the waters that flow from it. The obligation to let the waters that descend from high places flow freely is a law that nature herself has established, and which one cannot violate without injustice; but it is also a law for the proprietors of the high places to do nothing on their lands that could infringe upon the existence of the populations placed below them.

Some years ago, the government of the canton of Vaud claimed that the inhabitants of Geneva, by establishing on the Rhône mills or other works, had caused the waters of Lake Geneva to flow back onto the Vaudois territory. The effect attributed to the works made on the river was contested; but no difficulty arose on the point of law. No one claimed that the lower canton had the right to flood the territory of the upper canton [^63].

Whenever the population that has developed in a great basin forms but a single power, or when, if it is divided into several fractions, these fractions are united by a federal bond, it is easy to establish and enforce rules conformable to the general interest; but when a basin is shared among populations subject to governments independent of one another, and whose interests are opposed, nothing is more difficult than to have the rights of the various parts of the population respected.

The Rhine, for example, is the common property of several cantons of Switzerland, of France, of the Grand Duchy of Baden, of Bavaria, of the Grand Duchy of Hesse, of the Duchy of Nassau, of Prussia, of Belgium, and of Holland. All these peoples must therefore enjoy the faculty of navigating it, from the point where it discharges into the sea, to the point where it ceases to be navigable; and this faculty is formally recognized for them by the convention made on 31 March 1831, between most of these powers. But it is only after infinite difficulties that they have managed to come to an understanding, and to lay down some rules to which all these states have submitted. Practice will sooner or later give rise to new difficulties, and it is doubtful that they will be resolved to the satisfaction of all the powers, by the authorities that have been constituted or recognized by the treaty.

If it is difficult to establish secure customs lines between peoples who are separated by mountains, how much more difficult will it be to establish them on the banks of a river traversed by boats laden with merchandise seeking buyers, and which pass through populations that ask only to buy them! It is ordinarily in the gorges of mountains and in passages difficult to avoid that customs offices are placed; but, when a river is divided among several nations, one is obliged to establish them on the edge of the road traversed by the merchandise whose entry into the territory is forbidden.

The evil becomes much more serious if misunderstanding is established between some of the powers that hold under their domination various parts of the river; the questions of right that ought to be resolved by courts of justice, according to the ordinary rules of jurisprudence, become causes of war; and wars, in such a case, have most of the effects of civil wars.

Although the inhabitants of the Rhône basin form several peoples independent of one another, the property of this river does not give rise to questions as serious and as numerous as those to which the property of the Rhine gives birth. The loss of the first of these rivers, at the Fort de l'Écluse, and the rapidity it has, on leaving Lake Geneva, are too great obstacles to navigation for it to give rise to serious difficulties. From the point where it throws itself into the sea to the point where it ceases to be navigable, the territory it traverses belongs exclusively to France, and it cannot, consequently, give rise to great debates. However, a part of the mountains that pour their waters into it is placed under the domination of an Italian government, and this is an evil for the inhabitants of these mountains and for France.

The rivers of the other parts of the European continent are not, in general, better divided; some even are still worse, especially in Spain, in Italy, and in Germany; and it is probable that this state of things will last as long as nations are considered the patrimony of the families that govern them.

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Notes

[^55]: Et quidem quæ flumina per eamdem regionem tantum labuntur, unde originem ducunt, tota sunt illius regionis. Arnoldi Vinnii Comment. in Instit. , lib. II, tit. 1, § I. [^56]: Traité de législation, bk. IV, chap. I, vol. 3, p. 241. -- "Running waters," says Mr. G. Cuvier, "carry away the stones, sands, and soils from high places, and deposit them in low places when they lose their speed. Hence the alluvial deposits on the banks of rivers, and especially at their mouths...... The lands thus formed are the most fertile in the world." Historical report on the progress of the natural sciences since 1789, p. 144–145. [^57]: The difference in fertility, which generally exists between the lands situated at the bottom of the basins of rivers and streams, and the lands situated on the highest parts of the mountains, is so great that one cannot form an exact idea of it until after having compared the product of the one to the product of the other. The mountains of France are not very high; however, there are many lands that are not susceptible to any kind of cultivation, and which are only fit to form meager pastures. Immediately below these lands, there are others that yield one or two harvests every twelve or fifteen years, and this harvest, which often ripens only with difficulty, consists of a little barley or oats. In the department of Doubs, for example, more than two-fifths of the land is without product for agriculture. See the Statistique générale de la France, published by order of the Government in year XII and in year XIII. [^58]: A decree of the fourth complementary day of year XIII (21 September 1805), rendered in execution of a law (of 30 Floréal, year X) which had ordered the establishment of a navigation right, recognizes that rivers, streams, and canals belong to the basins in which they are formed. "In execution," it says, "of art. 2 of the law of 30 Floréal, year X, establishing the right of internal navigation, the proceeds of the duties collected in each basin will be used for the benefit of the canals, rivers, and streams included in the districts of that basin, according to the distribution that will be made by our minister of the interior for each department." [^59]: In 1824, the number of mills set in motion by watercourses, in the single department of Seine-Inférieure, was more than seven hundred; at the same period, an inch of water head, situated in the vicinity of Rouen, was worth a thousand francs, as much as an arpent and a half of land. A. Daviel, Pratique des cours d'eau, p. 11 and 12 of the Preliminary Observations. [^60]: Traité de législation, bk. III, ch. 27, vol. 3, p. 127. [^61]: See art. 5 of the Treaty of Paris, and art. 14, 30, 96, 108, 109 and 110 of the act of the Congress of Vienna, and the regulations that followed from it. Supplement to the Collection of Treaties of Alliance, Peace and Truce, concluded by the powers of Europe; by G. F. de Martens, vol. 6, p. 434-449. — A treaty made at Mainz on March 31, 1831, between the French government and several German governments, promulgated in France on July 26, 1833 (Moniteur of September 3, 1833), has regulated the rights of these various states on the Rhine, which is their common property. One sees with surprise that Switzerland does not figure in this treaty, although stipulations are made for it. [^62]: Dig. lib. 39, til. III, leg. 1, in princ. et § 1, 2, 6, 12, 13, 22; leg. 2, § 1, 2, 3 et 5; et leg. 3, § 2; et leg. 6, in princ. [^63]: Having been consulted on this debate, I did not believe that the question of law should be resolved otherwise than it would have been if it had arisen between two private individuals. The extent of the damage does not change the nature of the right.