« PreviousContinue »
They are entirely enclosed within the territories of the United States and Great Britain, and the right to their navigation, common to boih, is guarantied by the faith of treaties, and rests upon the still higher authority of the law of nature. These great lakes are united by but one natural outlet to the ocean, the navigation of which is common to all mankind. That outlet along a considerable part of its course, forms a common boundary between the territories of the United States and Great Britain, and to that extent the right of navigating it is enjoyed by both. The United States contend that they are invested with a right to pass from those lakes, the incontested privilege of navigating which they exercise, through that natural outlet, to the ocean—the right of navigating which, by all nations, none presumes to question. The right asserted, in other words, is, that their vessels shall be allowed, without molestation, to pursue their trackless way on the bosom of these vast waters, gathered together, in no inconsiderable degree, in their own territory, through that great channel of the St. Lawrence, which nature itself has beneficently supplied, to the ocean, in which they are finally deposited. They ask that the interests of the greater population, and the more extensive and fertile country above, shall not be sacrificed, in an arbitrary exertion of pow.
ér, to the jealousy and rivalry of a smaller population, inhabiting a more limited and less productive country below. The United States do not claim a right of entry into British ports, situated on the St. Lawrence, against British will, and to force their productions into the consumption of British subjects. They claim only the right of passing those ports, and transporting their productions to foreign markets or to their own, open and willing to receive them; and, as incident and necessary to the enjoyment of that right, they claim the privileges of stoppage and transhipment, at such places within the British jurisdiction, and under such reasonable and equitable regulations, as may be prescribed or agreed upon."
“Such is the right, the assertion of which shocked the sensibility of the British Plenipotentiaries. The impartial world will judge whether surprise most naturally belonged to the denial or to the assertion of the right."
“ If the St. Lawrence is regarded a strait, as it ought to be, connecting navigable seas, there would be less controversy. The principle on which the right to navigate straits depends, is that they are accessorial to those seas which they unite, and the right of navigating which is not exclusive, but common to all nations, the right to navigate the seas drawing after it that of pass
ing the straits. Let that principle be applied to the present case. The United States and Great Britain have, between them the exclusive right of navigating the lake.
The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from the one to the other through the natural link. Is it reasonable or just that one of the two co-proprietors of the lakes should altogether exclude his associate from the use of a common natural bounty, necessary to the enjoyment of the full advantages of them? But if that vast mass of water, collected from a thousand tributary sources, in the immense reservoirs of the North American lakes, and cast by them into the Alantic ocean, through the channel of the St. Lawrence, is to be considered, in its transit through that great channel, as a river, the name which accident has conferred, and not a strait, the right of the United States to navigate it is believed to be, nevertheless, clearly and satisfactorily maintainable.”
The 8th Article of our treaty of 1783, with Great Britain, provides, on the above principle, that the navigation of the Mississippi should be forever free and open to the subjects of Britain and the citizens of the United States. This treaty fully established the American doctrine as Spain in 1783 owned Louisiana, embracing both banks of
the river for a great distance from the mouths of the Mississippi. In 1786 the United States, in negotiation with Spain, asserted this right to free navigation of this river. Spain by treaty, in 1795, in Article 4, admitted this right in us.
We have now given the policy of our republic in reference to the inland seas, the Mississippi, the Columbia and the St. Lawrence, which is based upon the noble principle of doing to others as we would they should do unto us. The moral law of nations confirms this doctrine.
OF MARITIME CURTILAGE.
Some nations are maritime and border the oceans and seas, or the straits connecting them. Our next inquiry is as to the extent of a nation's maritime curtilage, or what portion of the contiguous ocean, sea or strait belongs to, and is appurtenant to the adjacent soil and jurisdiction.
This maritime limit is important, as the internal and municipal jurisdiction of a nation has exclusive authority within it, and beyond it the laws of each nation alone govern its ships and all persons on board on the high seas and their connecting straits. The Supreme Court of the United States in the case of the Mariana Flora say, that jurisdiction is claimed by all nations within cannon
shot of their shores, in virtue of their general sovereignty." The Court say, it is “founded upon the principle of sovereignty and permanent appropriation, and has never been successfully asserted beyond it.” (See 11 Wheaton's Reports, 42, 55.)
During the presidency of Mr. Jefferson in January, 1804, the Secretary of State of the United States, in a letter of instruction to our envoy, James Monroe, at London, explained the views of our government. Refering to the right of search claimed by Britain on the high seas over neutral ships, and insisting that the claim was unfounded, the Secretary relying on the principle that " a neutral flag on the high seas" is "a safeguard to those sailing under it," proceeds to say: " It is not then from the law or the usage of nations, nor from the tenour of treaties, that any sanction can be derived for the practice in question. And surely it will not be pretended that the sovereignty of any nation extends, in any case whatever, beyond its own dominions, and its own vessels on the high seas.” Again he says : “ The British pretensions to dominion over the narrow seas are so obsolete, and so indefensible, that they never would have occurred as a probable objection in this case, if they had not actually frustrated an arrangement by Mr. King with the British ministry on the subject of impressments from Ameri