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"Lawgiver of the universe, by delivering' His great works from "the artificial shackles and selfish contrivances to which they "have been arbitrarily and unjustly subjected."
DESCRIPTION OF TIIE COURSE OF THE RIVER ST. LAWRENCE, AND OF THE ST. LAWRENCE AND WELLAND CANALS.
The St. Lawrence ceases to be the boundary between the United States and Canada at or near St. Regis, an Indian village situated about sixty miles above Montreal. To the west of that place the northern shores of the river, Lake Ontario and Lake Erie belong to Canada, the southern to the United States. From St. Regis eastward the territory on both sides of the river belongs to Canada. Between St. Regis and Montreal are the Cedars, Cascade and Laohine rapids, all navigable by vessels of small draft of water descending to the sea, but unnavigable by all vessels ascending. The Beauharnois and Lachine canals have been built on Canadian territory, enabling vessels going np the river to pass from Montreal to St. Regis. The Cornwall canal is also on Canadian territory, but the Longue Sault, which it enables vessels to pass, is above St. Regis, and consequently is owned on the south adfilum aquas by the United States. Between lakes Erie and Ontario the river precipitates itself over the Falls of Niagara. On Canadian territory is the Welland canal, affording means of communication for schooners and propellers of moderate size, between those lakes.
AUTHORITIES ON THE QUESTION OF FREE NAVIGATION OF RIVERS.
By the Roman law rivers were public, that is to say, belonged to the particular people through whose territory they flowed, but could be used and enjoyed by all men: the use of their banks also was public.
"Riparum quoque usus publicus est juris gentium, sicut ip"sius fluminis. Itaque navem ad eas adplicare, funes arboribus ibi '; natis religare, onus aliquod in his reponere cuilibct liberum est "sicut per ipsum flumen navigare; sed proprietas earum illorum ': est quorum praediis haerent; qua de causa arbores quoque in "iisdem natae eorumdem sunt."*
The doctrine in England, from a period anterior to the publication of Selden's "Mare Clausum," has been, not only that certain portions of the open sea can be reduced into the absolute possession of a nation, but that all straits and rivers running through its territory belong to the nation in absolute property. Writers upon international law term this right that of exclusive use, but at bottom the right claimed and exercised is not the less one of absolute property.*
* Ins. lib. 2, tit. 1, § 4.
Of late years the question of the free navigation of rivers flowing through conterminous States has frequently been considered, and many treaties have been made regulating such navigation, to which several of the States of Europe and America have become parties:
Treaty of Paris, 30th May 1814.
"30th March, 1856.
Art. 109 de l'acte finale du Congrès de Vienne du 9 juin 1815. concernant la navigation fluviale.
Acte de navigation du Danube, signé le 7 Nov. 1857, art. 1.
Treaty between Austria and the Duchies of Parma and Modena of the 3rd July, 1849.
Treaties of 12th and 13th October, 1851, of Rio Janeiro.
Treaty of 10th July, 1853, between General Urguiza and the representatives of France, Great Britain, and the United States.
Decret du 10 Oct. 1853, de la bande Oriental.
Treaty between Brazil and Peru of 23rd Oct. 1851. f
The rights of States holding territories on rivers, as the United States and Canada do on the St. Lawrence, are treated in the following manner by the text writers:
"En vertu de ce principe l'état pourra exercer une surveillance "et une police pour regler la navigation du fleuve; et pourra "pourvoir, par des règlements opportuns, à concilier l'interêt de "sa sureté avec le droit des autres nations de se servir du fleuve "comme d'un moyen de communication; mais il ne pourra pas "défendre positivement aux autres natious la navigation sur ce "fleuve."^
"Si le fleuve par court ou baigne plusieurs territoires, les
* See 1 Twiss p. 109.
f See Carathéodary " Du Droit International concernant les Grands Cours d'Eau," pp. 112—151.
X 1 Fiore Nouveau Droit International, p. 357.
"Etats riverains se trouvent dans une communion naturelle a "l'^gard de la propriety et de l'usage des eaux, sauf la souveraineté "de chaque Etat sur tout l'entendue du fleuve, depuis l'endroit •' oil il atteint le territoire jusqu'au point ou il le quitte. Aucun "de ces Etats ne pourra done porter atteinte aux droits dcs "autres; chacun doit meme contribuer a la conservation du "cours d'eau dans les limites de sa souverainete et le faire par'•venir a son voisin. De l'autre part chacun d'eux, de meme "que le propriétaire unique d'un fleuve, pourruit 'stricto jure' "affecter les eaux a ses propres usages et a ceux de ses regni "coles, et en exclurc les autres."*
Wheaton thus expresses himself of what is called "the right of innocent use :"
'' Things of which the use is inexhaustible, such as the sea and "running water, cannot be so appropriated as to exclude others "from using those elements in any manner which does not occa"sion a loss or inconvenience to the proprietor. This is what is "called an innocent use. Thus we have seen that the jurisdiction possessed by one nation over sounds, straits, and other "arms of the sea, leading through its own territory to that of "another, or to other seas common to all nations, does not ex"elude others from the right of innocent passage through these "communications. The same principle is applicable to rivers "flowing from one State through the territory of another into "the sea, or into the territory of a third State. The right of "navigating for commercial purposes a river which flows through "the territory of different States, is common to all the nations "inhabiting the different parts of the banks; but this right of "innocent passage being what the text writers call an imperfect "right, its exercise is necessarily modified by the safety and con"venience of the State affected by it, aud can only be effectually "secured by mutual convention regulating the mode of its exercise." f
APPLICATION OF AUTHORITIES TO QUESTION.
The publicists who favour the doctrine of free navigation of straits running through different States, found their opinions upon the principle, that such straits were made and intended by
* Heffter § 77, p. 155. See Kluber, § 76; Bluntschli, § 319, 322; 1 Ortolan Dip. de la Mer, p. 146; 1 Kent, pp. 35, 36; Wolsey, § 58. t Laurence's Wheaton, ed. 1863, p. 346, §12.
nature to serve as channels of communication between navigable seas the common property of all nations. The basis of the American claim to the free navigation of the St. Lawrence is, that nature intended that river as the channel of communication between the Atlantic Ocean, the common property of all peoples, and the great lakes, the joint property of Great Britain and the United States.
The right then of free navigation of the St. Lawrence depends upon the fact of that river being a natural channel of communication between the Atlantic Ocean and the great lakes. If it be not such natural channel, the American claim to its free navigation must be pronounced unfounded.
In order that a strait may be a channel of communication between seas, it must be navigable. If by nature it be not navigable, it cannot ba a channel of communication between seas. Therefore no right can exist to navigate an unnavigable strait.
The first point then to be established as the basis of the American claim to the navigation of the St. Lawrence from St. Regis to the ocean, is the navigability of that river in all its course through Canadian territory.
It has already been shewn that at three places between St. Regis and Montreal, the St. Lawrence is unnavigable by ascending vessels, though navigable by those of a light draught of water descending. It cannot therefore bo considered navigable in the full sense of the term, owing to the impossibility of its being used as a channel of communication from the Ocean to St. Regis. The right of the Americans then being measured by the natural facilities of its course for navigation, it may safely be laid down that they have a right to its navigation down to the Ocean, but have no right to navigate it from the Ocean to St. Regis.
Granting, then, the right of navigation from St. Regis to the Atlantic Ocean to the Americans, it remains to be seen whether it can be exercised independently of the Government of Canada.
From the authorities already cited, it is apparent that vessels passing through a navigable strait are subject to the sovereignty of the State to which the strait belongs. The right of passage exists in favour of the foreign vessel, the rights of jurisdiction and sovereignty of such State are unimpaired in every other particular. A State has the right of taking such precautions as may be necessary for self-defence, and the preservation of its revenues and rights within its own territory. The right to search neutral vessels on the high seas exists in favour of belligerents. The right to search all vessels coming into its maritime territory exists in favour of each State in the world, as well in peace as in war time. A State owning a strait has therefore at all times the right of search over passing vessels, and can take snch precautions as may be necessary to insure that such passage be not productive of harm to' itself. As a natural consequence of the principle, foreign vessels have but the right of innocent passage through such strait, and must submit to the regulations made by the State proprietor, to prevent their abusing the privilege accorded.
The pretension of the British Government in 182(! as to the right of passage through such strait being but an imperfect right. is incontestable.
The navigation downwards of the St. Lawrence would be of but little use to the inhabitants of the United States, if it were impossible for their vessels to make return voyages through the Gulf to the great lakes. The St. Lawrence presents insuperable obstacles to vessels, trying to ascend the channel between Montreal and St. Regis. The canals on Canadian territory alone enable vessels to take advantage of the navigable, and to avoid the unnavigable portions of the river, and thus make the upward passage to United States territory.
Without the right of navigating the canals, that of navigating the St. Lawrence would be almost worthless. As yet no direct claim of right to such canal navigation has been advanced by the United States; but in the claim so persistently pressed for many years is concealed in embryo that to the navigation of the canals. to be brought forth at the proper moment.
The foundation whereon reposes the American claim to the navigation of the St. Lawrence from St. Regis downwards is, that that river is the natural channel of communication for vessels from the great lakes to the Ocean, and that it is impossible to make use of such channel without navigating that portion of the river which flows through Canada, Thus the impossibility of passing over United States territory forms part of the corner-stone of the right of United States vessels to pass over Canadian territory, in making use of a bounty of nature.
But above St. Regis, Canadian and United States vessels have equal rights in the navigation of the river, each country owning one of the banks. There are no canals in United States territory, whilst on Canadian soil canals have been made by which vessels