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Show -24- Tennessee, as the third new State, was content to corns into the Union with a constitutional declaration that flo • « an equal participation of the free navigation of the Miss.issippi is one of the inherent rights of the citizens of this State; it cannot, therefore, be conceded to any prince, potentate, power, person, or persons whatever. "54 The "potentate" so challenged by the Tennessee constitution was His Catholic Majesty, Charles IV, King of Spain, then holding the lower Mississippi and all the coast of the Gulf of Mexico. But the federal government had already en- gaged in a pointed and vigorous diplomatic controversy with Spain over the opening of navigation on the Mississippi River, and had solved the problem at about the time Tennessee was actually admitted into the Union* In this contro~ versy, Spain claimed the right to deny, and did deny, passage or navigation to the United States, or to any one of them, as an incident of Spanish sovereignty at the outlet of the great river» Territorially was urged by Spain as the sole test of sovereignty, whether applied to the fugitive elements of nature such as water or to the permanent immovables such as land* The United States, through Thomas Jefferson as Secretary of State, urged the law of nature, ne~ cessity, the so-called right of innocent passage from upper riparian States, and succession to the rights of Great Britain to which the Mississippi had been opened by the territorial adjustments and other provisions of the Treaty of Paris (1763). be considered as a part of this constitution/1 3 Thorpe's Constitutions. 1272• This was repeated as 9, Art. VI, of the constitution of 1799« 3 Thorpe's Constitutions, 1286; and again as S9, Art. VIII, of the constitution of 1850 3 Thorpe's Constitutions, 1303, It does not appear in the constitution of 1890» 3 Thorpe's Constitutions, 1316 et seq Indiana v. Kentucky, 136 U.S. 479, 10 Sup. Ct. l05l, 34 L. Ed. 329 (1890) ; Act of May 26, 1790, 1 Stat. at L. 123; Handly's Lessee v. Anthony, 5 Wheat. (U.S«) 374, 5 L. Ed. 113 (1820). -^Vermont Const, of 1786, Art XXXVII of c. II, 6 Thorpe's Constitutions, 3760; Vermont Const, of 1793 c. II, S40, 6 Thorpe's Constitutions, 3770. This provision still remains in the Vermont constitution* Vermont was admitted into the Union in the year 1791* Act of Feb. 18, 1791. 1 Stat . at L. 191, 6 Thorpe's Constitutions, 3761. 5^ennessee Const» of 1796, Art. XI, S29, 6 Thorpe's Constitutions, jl&h* This v*ras repeated in the Constitution of I83I4.., Art. 1, S29, 6 Thorpe's Con- stitution, 3ij28; and again in that of I87O, Art, 1, S29, 6 Thorpe's Consti- tutions, 3452. Tennessee was admitted into the Union in the. je&r 1796* Act of June 1, 1796, 1 Stat. at L. i+91, 6 Thorpe's Constitutions', 3i|li».» 55 1 American State Papers, Foreign Relations, 253-2514.. That the judicial department of the United States was consistent appears from tlie decisions of the Supreme Court in The Apollon, 9 Wheat. (U*S.) 3&2, 6 L. Ed. Ill (1821}.), holding that duties laid by an act of Congress could not justify the seizure of a French vessel which merely traversed the St. Maryfs River (forming the international boundary between the United States and the |