« PreviousContinue »
“ It is not intended to commit the parties who may concur in that declaration, to the support of the particular boundaries which may be claimed by any one of them; nor is it proposed to commit them to a joint resistance against any future attempt to plant a new European colony. It is believed that the moral effect alone of a joint de claration, emanating from the authority of all the American nations, will effectually serve to prevent the effort to establish any such new colony; but if it should not, and the attempt should actually be made, it will then be time enough for the American powers to consider the propriety of negotiating between themselves, and, if necessary, of adopting, in concert, the measures which may be necessary to check and prevent it. The respect which is due to themselves, as well as to Europe, requires that they should rest in eonfidence that a declaration, thus solemnly put forth, will command universal deference. It will not be necessary to give to the declaration now proposed, the form of a Treaty. It may be signed by the several Ministers of the Congress, and promulgated to the world as evidence of the sense of all the American powers,"
SECTION TENTH. OF THE GREAT LAKES AND ST. LAW
RENCE, AND OTHER SIMILAR WATERS.
We have explained the territorial rights of nations. The extent and nature of their title to contiguous waters, and the boundary line of their jurisdiction, form our next subject of inquiry. Two nations sometimes border interior seas and embosomed lakes like Lakes Superior, Huron, Erie, Ontario and their connecting straits, with the river St. Lawrence their natural outlet. Prior to the treaty of peace, which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the
propriety and territorial rights of the United States," whose boundaries were fixed in the 2d Article. “By this treaty, the powers of govern- . ment, and the right to the soil, which had previously been in Great Britain, passed definitively to these States." Such is the language of the Supreme Court of the United States in Johnson against M’Intosh. By that treaty then the title and jurisdiction of the United States and States were extended over about one half those inland seas, their connecting straits and the St. Law
The great navigable seas became common to the United States and Great Britain for the
purpose of navigation, though each party held the municipal jurisdiction over its own waters.
As their waters with those of the American Lake Michigan, and many rivers from our territory formed the canal or river St. Lawrence, one half of which from Lake Ontario a great distance down, belonged to our Republic, it seemed obvious that the common right of use attached to the river as well as to the divided Lakes. These common waters moving from Lake Ontario would bear an American raft or batteaux to the ocean. Such free navigation was clearly a right appurtenant to our soil by the law of nature.
In negotiation with the British government, our American Minister, by direction of the President, thus lays down the American doctrine on this subject :
“ The right of the people of the United States to navigate the river St. Lawrence, to and from the sea, has never yet been discussed between the governments of the United States and Great Britian. If it has not been distinctly asserted by the former, in negotiation, hitherto, it is because the benefits of it have been tacitly enjoyed, and because the interest, now become so great, and daily acquiring fresh magnitude, has, it may almost be said, originated since the acknowledgment of the independence of the United States, in 1783. This river is the only outlet provided by nature for the inhabitants of several amoug the largest and most populous States of the American Union. Their right to use it, as a medium of communication with the ocean, rests upon the same ground of natural right and obvious necessity heretofore asserted by the government in behalf of the people of other portions of the United States, in relation to the Mississippi river. It has sometimes been said, that the possession by one nation of both the shores of a river at its mouth, gives the right of obstructing the navigation of it to the people of other nations living on the banks above; but it remains to be shown upon what satisfactory grounds the assumption by the nation below of exclusive jurisdiction over a river, thus situated, can be placed. The common right to navigate it, is, on the other hand, a right of nature."
“ It may well have done so, since there is no sentiment more deeply and universally felt than that the ocean is free to all men, and the waters that flow into it, to those whose home is upon their shores. In nearly every part of the world we find this natural right acknowledged, by laying navigable rivers open to all the inhabitants of their banks; and, wherever the stream, entering the limits of another society or nation, has been interdicted to the upper inhabitants, it has been an act of force by a stronger against a weaker party, and
condemned by the judgment of mankind. The right of the upper inhabitants to the full use of the stream, rests upon the same imperious wants as that of the lower, upon the same intrinsic necessity of participating in the benefits of this flowing element. Rivers were given for the use of persons living in the country of which they make a part, and a primary use of navigable ones is that of external commerce. The public good of na. tions is the object of the law of nations, as that of individuals is of municipal law. The interest of a part gives way to that of the whole, the particular to the general. The former is subordinate; the latter paramount. This is the principle pervading every code, national or municipal, whose basis is laid in moral right, and whose aim is the universal good. All that can be required under a prin. ciple so incontestible, so wise, and, in its perma- . nent results upon the great fabric of human society, so beneficient, is, that reasonable compensation be made whenever the general good calls for partial sacrifices, whether from individuals in a local jurisdiction, or from one nation considered as an integral part of the family of nations. This is accordingly done in the case of roads, and the right of way, in single communities; and is admitted to be just, in the form of moderate tolls, where a foreign passage takes place through a