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Maps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre film6s d des taux de reduction diffirents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est film6 A partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la mdthoda. 1 2 3 1 ^ 2 s ' 4 . : i_ « ■J$ jjotli CoNGBRss, . [Doc. No. 48."| Ho* or Reps. ist Ses^on. Executive. NAVIGATION OF THfc ST. LAWRENCE. raoX THB PRESIDENT OF THE UNITED STATES, TRANSMITTINa A RKFORT FKOU THE SECRETARY OF STATE, AXD TBS CORRKSPONDBNCE WITH 7BB oovxBzmsxn!' or oabat bsxtazn, RBLATIVE TO TUB \f' Free Navigation oj the River St. Lawrence^ January 7, 1828. n • \ ft {' . . rM / ) ■ ■ , »^ _ *. ♦- .•;,. ^- ,-n mmmmUt [Doc. No. 43. ] #■ The Secretary of State, to whom has been referred a resolution of the House of Ue))i-escntativc.s, of the I7th ultimo, i-oquesting tlic I'residciit of the United States to communicate to that House, ** if not, in his opinion, incompatible witli the public interest, the corres- pondence of this Government with that of Great Britain, relative to the free navigation of tiie river St. Lawrcnre," has the honor to sub- mit to tlic Pivsident the accompanying pai>ers, being extracts and copies of letters and documents, connected w itii that subject, and ex- planatory of the same. II. CLAY. Department of State, ff'usliington, 5th Januurtj, 1626. ' LIST OF PAPERS »iccompanyins the report of the Secretary of State, oj '■'■■:. 5th January, 1828. Extract. Mr. Adams to Mr. Rush, dated 23d June, 1823. Ml. Rush to Mr. Adams, Mr. Clay to Mr. Gallatin, Mr. Clay to Mr. Gallatin, Mr. Gallatin to Mr. Clay, Mr. Gallatin to Mr. ClaV, B. Protocol 18. N. Protocol 24. 12th August, 1824. 19th June, 1826. 8th August, 1826. 21st September, 182r. 1st October, 1827. ». • ■ ■ ' m [Doc. No. 43.] Extract of a letter from Mr, Mams to Mr. Ruth, dated Department qf State, 9fashington iBd June, 18SS. « ^ith regard to the right of that portion of our people to navigate the river St. Lawrence, to and fi-om the ocean, it has never yet been discussed between us and the British Government. I have little doubt that it may be established upon the sound and general principles of the law of nature ; and if it has not been distinctly and explicitily as- serted in negotiation with the British Government, hitherto, it is be- cause the benefits of it have been, as the committee remark, tadUy conceded, or because the interest, now become so great, and daily ac- quiring additional moment, has, it may almost be said, originated since the acknowledgment of our independence by the treaty of 1783. «The memorial from the committee of the inhabitants of Franklin county, New York, is perfectly correct, when it asserts this right upon the principles asserted at the period when our right to the navi- gation of the Mississippi was in question ; and so far as the right, by the law nature, was maintained on the part of the United States, in that case, so far is the Government of tlio United States bound to maintain, for the people of the Territory of Michigan, and of the States of Illinois, Indiana, Ohio, Pennsylvania, New York, and Vermont, the natural right of communicating with the ocean, by the only outlet, provided by nature, trom the waters bordering upon their shores. ** We know that the possession of both the shores of a river, at its nouth, has heretofore been held to give the right of obstructing or interdicting the navigation of it to the people uf other nations, inha- biting the banks of the river, above the boundary of that in possession of its moutli. But the exclusive right of jurisdiction over a river, ori- ginates in'the social compact, and is a right of sovereignty. The right of navigating the river is a right of nature, preceding it in point of time, and which the sovereign right of one nation cannot annihilate, as belonging to the people of another. *< This principle has been substantially recognized by all the parties to the European alliance, and particularly by Great Britain, at the negotiation of the Vienna Congress treaties. It is recognized by the stipulations of those treaties, which declare the navigation of the Rhine, the Necker, the Main, the Mozelle, the Maese, and the Scheldt, free to all nations. The object of tliose stipulations, undoubtedly, was, to make the navigation of those rivers effectively free to all the peo- pfe dwelling upon their banks, and to abolish all those unnatural and unjust restrictions, by which the people of the interior of Germany had, before that time, been deprived of their natural outlet to the sea, by the abuse of that right of sovereignty which imputed an exclusive u [Doc. No. 43.] botti |M>ri jurisdiction and property over a river to tlio State possessing L 'shores, at its in:iufli> There is no prinriple of national law u whicli 'those articles of the Vienna Congress treaties could be found- ed, which will not apply to sustain the right of the I'eople of this Union to navigate the St. Lawrence river to the ocean. « These ideas are suggested to you, to be used, first, in conference with the British Minister of Foreign Affairs, and, afterwards, if ne- cessary, in correspondence with him. The manner and the time of presenting them, will, be best Judged of by your discretion. By the two nets of Parliament, of Sd Geo. 4, chs. 44 and 1 19, the navigation of the St Lawrence, fi-om our Territories to the ocean, is, in fact, conceded to us. By the first, from the ocean to Quebec ; and, by the se* cond, from any part of our territoricR to the same port. But a discre- tionary power is given to the Colonial Government in Canada, to withdraw the latter of these concessions, by excepting any of the Canadian ports from those to which our vessels are by the act made admissible ; and the duties imposed by the act, upon all those of our exports which could render the trade profitable, are prohibitory. '* •' 'i 5 Extract of a despatch {Xo. 10) from »Vr. Rush to Mr. Mams, dated LoNDOX, August 13, 1834. "The act of Parliament of the fifth of August, 1822, having im- mediate relation to the commercial intercourse between the United States and the British continental ]»(»sse8sions in their neighboriiood, I naturally regarded it. as your instructions to me had done, in con- nexion with the act of June the 24tli, 1822. This brought under con- sideration our claim to the navigation of tlic river St. Lawrence. Between this question, and the questions of commercial intercourse under the act of June, 1828, the British Plenipotentiaries were con- stantly unwilling to acknowledge any connexion. Nevertheless, look- ing to your instructions, and as well to the reason of tlicm, as to their authority, I treated the two questions as belonging to one and the same general subject They asked whetlier, taking tlic two acts of Parliament together, the United States did not already enjoy the na- vigation of this river ? I said that they did : by the act of June the 24th, 1822, they enjoyed it from the ocean to Quebec ; and by that of August the 5th, 1822, from any part of the territories of the United States to Quebec. But from the fact of the colonial Governments, in Canada, being invcstetl w ith a iliscretionary power to withdraw the latter of these concessions, !»y excepting any of the Canadian |K)rts from those to which our vessels were made admissible, it lollowed that our enjoyment of the navigation of tliis river was rendered con- tingent upon British permission. This was a tenure not i-econcllablc in the opinion of the Government of the United States, v;itli the grow- ing and iicrmanent wants of tlieir citizens in that portion of the Union «r a 01 1" th Ja 8h tvli (lei inh rep doc Uut; tion] sedJ ditil andf torj artii nen{ that four LDoc. No. 48.] 9 crcnco , If ne- tlme of By thB •igation in fact, y the w I discrt- nada, to ly of the act made ,0 of our tory." having im- thc UmtoJ igliborhooil, ;,,e, in coi»- undcrcou- Lawvenc*'. iiitcrcourw 3 wcrecoii- ;helc9s,look- ,,astotlieii- one at>i^ "":. c two acts ol enjoy the im- a,d by that «.f ;,• the United vcinmcntS jn ^viU»<^ra^v the auiuJian l^rts c it lollowcd r'enacrcd con- )t i-ec«nciiaolc with the gro^- ,„ of the Union or with the rights of the nation. It was due to both these considers- tions that it should Ntand u|M)n a oiflTcrent tenurt?. and the time had arrived wlicn it was desirable that tlio two nations should come to an understanding u|M)ri a(|uestion of so inucii importance. •• The British IMeiil|i(>tentiaries next asked, whether any question was about to be raised on ihe riglit of Ui-eat Britain to exclndct alto> getlier, vessels of the Uniteil States from trading with British ]iort8 situHtcd upon the St. Lawrence, or elsewhere, in Canada f I replied that 1 was not prepareii absolutely to deny such a right in Great Bri«. tain, to whatever considerations itsoxercisn might be open. I rcniark- ed, also, that it seemed ali-eudy to have been substantially exercised by this act of the 5th of August, 1822 : for, by its provisions, only certain enumerated articles wer« allowed to be exported from the United States into Canadian ports, and duties were laid upon these articles, which might be said to amount a prohibition. I added, that, although the foregoing act had not laid any duty on the merchandise of the United States descending the St. Lawrence with a view to ex- portation by sea, yet that an act of the preceding year did, viz. upon th)'ir timber mid lumber, which made it highly exjiedient that the re^ lative rights of the parties to the use of tlie waters of this great stream, should be asceilained. 1 here went into A review of the footing'upon which the trade betw(%n the United StatcH and the Canadas stood, un^ der the stipulations of the treaty of 1794. The memorial from the inhabitants of Franklin County, in the State of New York, and the report of the Committee of the House of Representatives upon that document, furnished me with the necessary lights for executing this duty, as well as for pointing out the injurious and burdensome opttra- tion of tlie art of the 5th of August, 1822. The latter act hud super- seded all the former conditions of this intercourse. With these con- ditions, the citizens of the United States had been. I said, content, and it was believed that they had been found, on experience, satisfac- tory on both sides. The treaty stipulations of 1794, were among the articles of that instrument declared, when it wa« made, to be perma- nent ; and so mutually beneficial had ap|)eared to be their operation, that both parties continued, in practice, to make them the rule of their conduct for some years after the war of 1812, until, by the acts of Parliament, just recited. Great Britain chose to consider the interven- tion of that war as putting an end to their validity. This state of things, by remitting each party to their anterior and original rights, rendered it manifestly incumbent upon the Government of the United States now to attempt to settle, by convention, or in some other manner, with Great Britain, the true nature of the tenure by which tliey held the navigation of this stream. Such was the character of the remarks by which 1 illustrated the propriety of adding to tlie two articles which I had offered for the regulation of the commercial intercourse between the United States and the British colonies, whether continen- tal or insular, a third article relating exclusively to the navigation of the St. Lawrence. A third article will be found, accordingly, in this connexion, as part of our projet, already referred to, as annexed to 2 '.li! I" iO [Doc. No. 43.] the protocol of rjit tliiifl conference. Its stipulations were, that the navigation of the St. Lawrence in its whole length and breadth, to and from the sea, should be at all times equally free to the citizens and subjects of both countries, and that the vessels belonging to either party should never be subject to any molestation whatever by the otlier, or to the payment of any duty for this right of navigation. After this une(]uivocal provision, it concluded with a clause that, re< garding such reasonable and moderate tolls as either side might.claim and appear to be entitled to, the contracting parties would treat at a future day, in order that the principles regulating such tolls might be adjusted to mutual satisfaction. t* I deemed it most advisable to ingraft upon the article this princi- ple respecting tolls, althssession of both the shores of a river below, had conferred the rigiit of interdicting the navigation of it to the people of other nations inhabiting its upper banks, the examination of such a> land ti Istipoli lother Iple dv Itions I {often « iright < {both t iThpre ^^of the yithe cai .jdoctrii t^*naviga Great iside, t "I which to be n agreei Srotoc ^^ ''^ ^ variou comni pie of subjec eacli ] to the TDoc. No. 48.] 13 fites must be prc- ;ht in which thojr •ight. they hope4 y were willing to lly novel and ex- lings of Rurprise e absolute Hove- Rnk8 were of her a foreign nation to be discusKcd. 1. They oppos- ^istance. traonlinary. It nment, and was 4 of public law. IS of the United le world, would d, in relation to Mg to the South* nks were under ncijiles that had er. lcni|)otentiaries» declaring that totally and une- public law, the Could I shew r its assertion ? nount authority le for one nio> by the United in it ; yet, that lokcd at but in r this course of prnment might sfore, far from >c subject to a two Goveni- mown, on be- nced — a duty ;onsidered our il right. This This was the no less than iretofore been 2r below, had to the people tion of such a principle would at once disclose the objections to it. The exclusive right of jurisdiction over a river could only originate in the social Dinpact, and be claimed as a right of sovereignty The rigiit of navi- gating the river was a right of nature, preceding it in point of time, ind which the mere sovereign right of one nation could not anniliilate belonging to the people of another. It was a right essential to the condition and wants of human society, and conformable to the voice if mankind, in all ages and countries. The principle on which it (rested, challenged such universal assent, that, wherever it had not ^been allowed, it might be imputed to the triumph of power or injus- tice over right. Its i-ecovery and exercise had still been objects pre- ^'cious among nations, and it was happily acquiring fresh sanction from the highest examples of mfidern times. The parties to the Eu- ropean Alliance had, in the treaties of Vienna, de(;lared tliat the navi- igation of the Rhine, the Necker, the Maync. tlie Moselle, the Maese, and the Scheldt, should be free to all nations. The object of these .stipulations was as evident as praiseworthy. It could have been no lotlier than to render the navigation of those rivers free to all the pco- Iple dwelling upon their banks ; thus abolishing those unjust restric- Itions by which the people of the interior of Germany had been too [often deprived of their natural outlet to the sea, by an al»use of that |right of sovereignty, which claimed'for a State, happening to possess Itoth the shores of a river at its mouth, the exclufdve property over it. ^riiere was no principal of notional law upon which the stipulations ftf the above treaties could be founded, which did nut equally apply to Uie case of the St. Lawrence. It was thus that I opened our general fdoctrine. It was from such principles that I deduced our right to navigate this river, independent of the mere favor or concession of Great Britain, and, consequently, independent of any claim, on her side, to an equivalent. <* I abstain from any further recapitulation to you of the principles which I invoked, orof the authorities to which I referred, for a reason to be now mentioned. It will be seen, by the first protocol, that our agreement had been to carry on the negotiation by conference and protocol. This, the more usual mode at all times, was conceived to be peculiarly appropriate where the subjects to be handled were so various, and their details, in some instances, so extensive. Ft was re- commended, also, and this was of higher sway with me, by the exam- ple of the negotiation of 1818. in the course of which some of the same subjects had been discussed with this Government. Nevertheless, cacli party had reserved, under this agreement, the right of annexing to the protocol any written statement that might be considered neces- sary, as matter either of record, or of explanation. In your instruc- tions to mc rcsi)ecting this claim to the navigation of the St. Law- rence, a question wholly now as between the two nations, you had ad- verted to my presenting it in writing, if necessary, and I determined, under all the circumstances, that I should not properly come up to my duty, unless by adopting this mode. The question was not only now, but of the greatest moment. I saw, also, from the beginning. I'l ill [ 11 ( I 14 [Doc. No. 48.] that it would encounter the most decided opposition from Great Bri- tain. In proportion as her Plenipotentiaries became explicit and peremptory in denying it, did it occur to me that it would be proper, on my part, to be unequivocal in its assertion. This could be best | done upon pafier. This would carry the claim distinctly to the ar- chives of thiH Government, rather than truat it to foundations more uncertain and fugitive. It would explain, as well as record, the sense in which it was inserted on the protocol. Another motive with me for this course, and scarcely a secondary one, was, that it would serve to draw from Great Britain, in the same form, a precise and full avowal of the grounds on which she designed to oppose the claimt On a question so large, and which, from all that I perceived to mark its first opening between the two Governments, could hardly fail to conic under discussion again hereafter, it appeared to me that it would be iiiore acceptable to my Government to be in possession of a written document, which should embody the opinions of this Government, than to take the report of them from me, under any, form less exact or authentic. "1, accordingly, drew up a paper on the subject, which, under the right reserved, 1 annexed (marked B) to the protocol of the eighteenth cunferrnce, and so it stands amongst the papers of the negotiation. Tlie British Plenipotentiaries continued to urge their animated pro* tests against this proceeding on my part ; not that they could divest me of my privilege of recording my sentiments in the shape of this written statement, but that they earnestly pressed thepropnety of my abandoning, altogether, any claim to the navigation of this river, as a claim of ligh^ which shut them out from treating of it upon other bases. But, having taken my determination, under other esti- mates of my duty, I did not depart from it. « The paper which I drew up, aimed at presenting a broad, but in- telligible, outline of the principal reasons in support of our claim. These were such as you had set before me, and as I judged to be im- mediately deducible from them. Under the latter, 1 included the ar- gument on the Mississippi question, used by an illustrious individual, then the organ of our Government in its intercourse with foreign States. I considered this argnment as virtually comprehended in your instructions by the reference which they contained* to it ; the questions in botli cases, so far as each drew support from the deep foundations of tiie law of nature, being tlie same. Of this luminous State paper 1 followed the track, adopting its own language, whenever this could be done, as the safest, the most approved, the most national. The only view of the subject not elicited on that occasion, which I ventured to take up, was one pointed out by the locality of the St. Lawrence. I will briefly explain it. •< The exclusive right (lOMscHsed by Gi'eat Britain over both banks of this river, was won for her by the co-operation of the people who now form the United States. Their exertions, their treasure, their blood, were profusely embarked in every campaign of the old French war. It was under this name that the recollection of tit^at w^r stijl livf d in 5 ■■♦-^ taT r, ■,.,.»i^„ -*i«i/fi from Great Bri- me explicit and ivould be proper, lis could be best, inctl^ to the ar> Dundations more ecord, the sense motive with me it it would serve precise and full ppose the claim, rceived to mark d liardly fail to me that it would ion of a written s Government, rm less exact or irhich, under the f the eighteenth the negotiation. * animated pro> ley could divest le shape of this propriety of my ' this river» as ig of it upon ider other esti. broad, but in- of our claim, dged to be ini- icluded the ar- ms individual, with foreign iprchended in ned*to it ; tha from the deep (his luminous ige, whenever Dost national, lion, which I y of the St. both banks of aple who now ^tlieir blood, rench war. still lived in [Doc. No. 48.] 15 I le United States ; a war which, but for the aid of New England, [ew Yoik, and Pennsylvania, if of no more of the States, would pro- bably nut have terminated, when it did, in the conquest of Canada im France. If these States were, at that epoch, a part of the colo- lial empire of Great Brit^'n, it was, nevertheless, impossible to ob- literate the recollection of historical facts, or exclude the inferences that would attach to them. The predecessors of the present inhabit- in ts of those States had borne a constant and heavy burdeh in that 'ar, and had acquired, simultaneously with the then paitrnt State, the right of descending this stream, on the hypothesis, assumed fur the loment, of their not having possessed it before ; a right of peculiar IIMmportaDce to (hem, from their local position and necessities. It was j^plo this effect that 1 noticed a title, by joint acquisition, as, also, suscep- ,',|tible of being adduced for the United States, to the navigation of this river. There was, at least, a strong natural equity in it, which would Icome home to the people of the United States, impressing them with ew convictions of ^hc hai'dship of now refusing them the use of this tream, as an innocent pathway to the ocean. But, as I had not our elucidations of this view of the subject, I was careful to use it nly in subordination to the argument of natural right. The latter I ireated as sufficient, in itself, to make out our title, and repudiated the necessity of resorting to any other. 1 will own, however, that y disposition to confide in the argument founded upon joint arquisi- ion, was increased by the analogy which it appeared to me to bear to the course of reasoning pursued with Great Britain,^by my pi-edcces- sor in this nussiou, in relation to the fisheries. If oiir title to a full participation with Britain in the fisheries, though they were within the acknowledged limits and jurisdiction of the coasts of British Ame- rica, was strengthened by the fact of the early inhabitants of the United States having been among the foremost to explore and use the fishing grounds, why was the analogous fact of their having assisted to expel the French from the lower shores of the St. Lawreitce to be of no avail ? I had believed in the application and force of the argu- ' ment in the one instance, and could not deny it all the consideration that it merited in the other. ** The necessity of my recounting to you the British argument in'; answer to our claim, is superseded by my being able to transmit it"^ to you in their own words upon paper. It is sufficiently elaborate^' and was drawn up with great deliberation. It is annexed (marked N.) I to the protocol of the twenty-fourth conference. The intention avowed by the British Plenipotentiaries, at the nineteenth conference, of ob- taining for its doctrines, before it was delivered to me, the full.sanc- tioii of their highest professional authorities on matters relating to the law of nations, may serve to show the * gravity and importance,' to repeat their own expression, which the question had assumed in their eyes. I have, otherwise, reasons for knowing that their argu- ment was prepared under the advice and assistance of five of the most eminent publicists of England. With all the respect due to a paper matured under such auspices, I am not able to look upon it as impugn- L*! "■ ' '\ m\ 16 [Uoc. No. 48.] i i :i I H ingthe argument which, under your direction., and following the course o( otiiei-s bei'ore me, I had becumv the organ of making known on behalf of the United States. «« In Ncveral instances the British paper has appealed to the same authorities that are to be found in mine. It is in the application of them only, that the difTcrenco is seen. In other parts, the difference is made to turn u|H)n words rather than substance. But an error that runs throughout nearly the whole of their paper, consists in attribut- ing to mine a meaning which does not belong to it This applies espe- cially to the particular description of right which we claim ; how far it is one of mere innocent utility ; how far a right necessary to us and not injurions to Britain ; how far a right which, if not falling under the terliniral designation of absolute, is, nevertheless, one that cannot be witlilielil. Tliesc are all qualifications which were not overlooked in my exposition of the doctrine ; a light* however, in which the Brit- ish pa])cr does not appear to have regarded it. But as each document is now of record, and will be judged by the terms which it has used* and the construction that justly attaches to them, I will not enlarge upon this head. « The British paper deals with our claim as standing upon equal fttoting with a claim to the use of the roads, canals, or other artificial ways, of a country ; forgetting that the rase in dispute is that of a natu- ral stream, forming the only natural outlet to the ocean — tlie stream itself being common, by nature, f o both countries. Commenting upon the acquired title of the United States, which I had put forward un- der the i-cstrittion described, their pnper argues, that the same ground would justify a correlative claim, by Great Britain, to the use of the navigable rivers, and all other ])uhlir posnessions, of the United States, which existed when boih countries were united under a cominon Gov- ernment ! By a like misapplication of obvious principles, it argues that our claim would silso justify Britain in asking a passage down the Mississippi, or the Hudson, though neither the one nor the other touch any (tortion of the British lerritories ; or that it might equally justify a claim, on her side, to ascend, with British vessels, the principal rivers of the United States, as far as their draft of water would admit, instead of depositing their cargoes at the appointed ports of entry from the sea ! On doctrines such as these, I could only say to the British Plenipotentiaries, that I was wholly unable to perceive their application to the argument, unless the United States had been advanc- ing a claim to the navigation of the river Thames, in England. . *' Their argument also assumes that the treaty stipulations of 1794, exclude all idea of a right, on our side, to the navigation of this river, forgetting, that if, under those stipulations, vessels of the United States were interdicted the navigation of British rivers between their mouths and the highest poil of entry from the sea ; so, on the other iiand, British vessels were interdicted tlic navigation of the ri- vers of the United States, beyond the higlicst ports of entry from the sea; and, also, that the whole terms of the international intercourse, in that quarter, were, by this compact, such as at the time satisfied both ■ b \ [Doc. Uto. 4t:] «l piHlM^ withinit impairing tlie rights wliich either pmw ia e d indtpoi- dent of the compact, and which only remained in suapemte daring ita existence. This observation suggests another to which their argument is open; in parts which they press as of decisive weight. It allegea that becaune, by the general treaty' of Yiona, the powers wboae States were crossed by the same navigable rivers, engaged to ngai-> late, by common consent, all that rc^pwdcd their navigation ; because Russia held by treaty the navigation of the Black sea; and hrcause of the miiny instances, capable of bdng cited, were the navigation of rivers or straits that separated, or flowed through the territories of diflbrent countries, was expressly provided forliy treaty,; that, be- cause of these facts, the inference Was irresistible, tiiat tiie right of navigation, under such circumstances, depended upon eommon eotuenti and could only be claimed iw treaty. Here, too, it seems to have heed forgotten, that it is allowable in treaties, as well as oftentimes expe* d|«nt, for greater safety and precision, to enter into stipulations for the e^foyment or regulation of pre-existing rights ; that treaties are, in fac^ expressly declared, by the writers upon the laws of nations, to be (^ two general kinds : those which turn on things to which we are al- ready bound by the law of nature, and those by which we engage to do something more. In their quotation, also, of the note frum the first volume of the Laws of Congress, containing an intimation ttiat the United Statrs could not he expected to yield the navigation of the Mississippi, a'ithout an equivideht. they seem wholly to have over- looked, besides the otl|:r points of that note, that it was made at a pe- riod when it was well known that no part of ihftt river touched the territories of a foreign Power ; and when, therefore, its exclusive navigation belonged to the United States, as much so as the Dela- ware, or the Fuiomac. '^ «Tlie foregfring are some of the remarks upon the British paper, which I submitt^ at the conference, after receiving it. The first impressions that I had of my duty in regard to it, and, conseqoendy, my first determination was to reply to it at large, in writing, an- nexing my rejj^ly to the protocol; But, on more reflection, I deem it rniMt proper to abstain, at present,. from this step. As a view of the whole subject, given out under the immediate eye and antiiwity of this Govemmmt, and with extraordinary care, it appeared, to dm that the British paper ought to come under the knowledge of my own Ckivernm^nty'before receiving a formal or full answer from any source less high. If it be thought to require such an answer, a short delay could be nothing to the advantage of its being aflforded. either through me, or my successor in this missioh, under the light of furtlitirjnstnic- iions from home. The jmuse seemed the more due, not otil; from the newness of the discussion between the two Governments, but be- cause I may not, at^ this moment, be sufliciently apprised of all the modifications bitder which mine may desire it to he presented in a seicoMd and emre fiill argiiment. I b«q[» that this fbrbearauice, on mf patt« lNi|U%e approved^ as havii^itieeni under the exigency, tl^maiit circHiiiq^ and b«ctoniilig course. I gave the British PleniptftMtta^ ' 'I 1 ,i(i J (ii li - *t- ■( :, f NV- V \' d. i t 18 LD6C. No. 43. J ries to understand, that the written argument,' on the side of Hk j United States, must not be considered as closed, but, on the contra* ry, onljr as opened." Extract of a Utter from Mr. Clay to Mr. Gallatiitf (Jfb. 1.) DSPARTMENrr OF Statb, WashUtgtont \9th June, 1826. « 3. Tlie navigation of the St. Lawrence fi^ni tlie Territories of the United States to the sea. <• Tiie Government of the United States have seen, with very great surprise and regret, the manner in which the assertion of this riglit of navigation, througli Mr. Rush, during tiie fuinner negotiation, was met and resisted by the British Pletiipotentiariefi. The President has i'ea|)ectfully and deliberately examined and considered the British pa|icr which was delivered in by them, and which is annexed to tlie protocol of the ii!4th conference, and ho has been altogether unable t<» discern, in its reason or its authorities, any thing to impeach the riglit of the United States, or to justify the confidence with which the exriusive pretensions of Great Gritain arc brought forward and maintained. Wliat is the right claimed by tiie United States ? The North American lakes are among the largeslPinland seas known on the globe. Tiicy extend from about the 41st to the 49th degree of north latitude, stretch over sixteen degrees of longitude, and thus present a surface, altogetlier, of upwards of eigtity-tliree thousand square miles. Eight States of this Union, (three of them among the largest in it) and one Territory, border on them. A population al- ready exceeding two millions, and augmenting beyond all exam|de, is dii-ectly and deeply interested in thfir navigation. They are entirely enclosed within tiie Territories of the United States and Great Bri- tain, and tlie right to their navigation, common to botii, is guarantied by the faith of treaties, and rests upon the still higher authnrity of the law of nature. Thesis great lakes are united by but one natural outlet to tlie ocean, the navigation of ' which is common to aN man- kind. That outlet, along a considerable part of its course, forms a ctiinmon boundary between the territories of the United States and Great Britain, and to that extent the right of navigating it is enjoyed by butlK Tlie United States contend that they are invested with a right to pass fnmi those lakes, the iticontested privilege of naviratii)g which they exercise, through that natural outlet, to the ocean — the right of navigating which, by all nations, ninie presumes tn question. The right assei'ted, in other words, is, that their vessels siiall be allow^, without molestation, to pursue their trackless way on the bosom of those vast waters, gathered together, in ho inconsi- ^rahle degree, in their own territory, through that great cbimnel of the St. Lawrence, which nature itself ba» beneficently supplied, to \ i ■■n <^j ■^-.i^v. [11^. ljc>;48.] t» onthesideof tiit on the contra. tin, (Mb. I.) thJune, 1826. lie Territories of i with very great ion of tfiis right negotiation, was he President has sred tlje British annexed to t)i» gether unable ti* to impeach the "ce with which ;ht forward and i States ? The seas Itnown on > 49th degree of t'lile, and thus ■three thousand them among the ^ Papulation al- all example, is lej ai-e entirely and Great Bri- » i"* guarantied er authority of •ut one natural on to aN nian- nurse, forms a ted States and 5 it h enjoyed •vested with a of naviratirjig the ocean — presumes to t their vessels :rackless way in ho inconsi- at cbatinel of ' SBppJi«iiy to :iie ocean, in which they are finally deposited. The; ask that thff interests of the greater population, and the more extensive and fertile Icountry above, HJiall not be sacrificed, in an arbitrary exertion of Enwer, to the jealousy and rivalry of a smaller population, inha- iting a more limited and less productive country below. The United [states do not claim a right of entry into British posts, situated on Itlie 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 transiiorting 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 iirtvileges of stoppage and. transhipment, at such places within the British jurisdiction, and under such reasonable and equitable regula- tions, as may be prescribed or agi*eed upon. ** Such is the right, the assertion of which shocked the sensibility of the British Plepipotentiaries. The impartial world ivtil judge wheth- er surprise most naturally belonged to the denial or to the assertion of the right. ^' If the St Lawrence is regarded a strait, as it o6ght to be, eon> necting navigable seas, there would be less controversy. The princi- ple 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 ^ th^ right to navi- gate the seas drawing after it that of passing the straits. Let that principle be applied to the present case. The United States and Great Britain have, betwjirn thc^Hie exclusive right of navigating the lakes. The St Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) iifbludes thktof pasS' ing from the one to the othfer through the natural link. Is it Iwason- ablo or just that one of tiie two co-proprietors of the lakes should al- togctlier exclude his associate from the use of a common natural boon- ' ty, necessary to the enj«>yment of the full advantages of them ? But, if that vast mass of water, collected from a thousand tributary 80uri;e8, in the immense reservoirs of the North American lakes, and cast by them into the Atlantic ocean, through the channel of the St Lawrence, is to be considered, in its transit through that great channel, as a river, the n^me which accident has conferred, and not a strait the right of the United States to navigate it is believed to be, neverthe- less, clearly and satisfactorily maintainable. In treating tliis sub- ject^ there is, tbijpughout the whole of the British pajier, a want of just discrimination between the right of passage, claimed by ofie na- tioiv through the territories of another, on land, and that on naviga- ble water. The distinction, it is true, is not always clearly adverted to in tlie writers on the public law, but it has a manifest existence. In the former case, the passage c&n hanlly ever take place, especially if it be of- numerous bodies, without some detriment or inconvenience to the State or its citizens, whose territory is traversed. If the country be in a forest state, tir re is a destruction of timber, if not of «oU. .If.^|n acuJULj^ed;, the ^elds are trodden down and .dilapidated, 'I ■ 11 '^\ ■ 1 4'- . .■; ^ f \ SH [Dec. No. 4a. j •nd the UM of the roads more or less impairs them. In both, there is danger of collisions between the native and foreign citizens. But « pasHuge on land, through the territories uf another, whenever it in innocent, cannot be lawfully reRised. It is to be granted by a neutral to a bolligerent army, if no serious iiOury is likely to accrue to him. A» the right of judging whether the passage be or be not innocent, nnst abide somewhere, expediency suggests that it should be exercis* ed by tlw sovereign of the soil. But his judgment and dierision must be regulated by reason and justice ; and, of course, the passage ran* ■ot be rightfully refused upon grounds merely arbitrary. How stands the case ctf a passage on navigable water P In that, no injury Is done to timbet or soil, to cultivation or tn roads ; no dangerous collisions between the iniiabitants and the foreigners arise • not a trace is left by the passenger beiiind. In the passage of the St Law- rence, for example, the vessel Ih waited, on the same water which first ioats it from the territories of the United States, to the ocean. It is true, as is alleged in the British paper, tliat tins water washes the quays of Montreal and Quebec, passes under the walls of a principal lortrfss, and, also, through the Jinat settlements of Canada, and ex- tends along a space of nekr six hundred miles, within the dominions of his Britannic Miyesty. But when the American vessel shall have arrived at the ocean, to whii^h she is supposed to be bound, she will jk»ve inflicted no injury upon those quays ; the guns of the fortress will bave been silent ; tliose fine settlements of Canada, and that space of aix hundred miles, (not exactly, as is anserted, extending through the heart of a British colony,) will have i^tnained unmolested. She will have left no traces of injury behind tier : her voyage itself will not bave made on the Inhabitants tlie impressiim of a passing dream ; and, like the water on wliich she was bok'ue, she will have sought her trackless and innocent course to tite oceati, to reach which Great Bri- tain would be as much justified in claiming a power to prevent tlieono ; as the other. ^ ** Nor ought the cases of rivers which rise and debouch^ altogether within the lerritorial limits of the r.Mne nation, to be confounded with those which, having their sources and navigable portions of their bo- dies in States above, finally discharge themselves within the limits of other States below. In the former instance, tliere is no basis on which a right in common can rest The navigation of those rivers, ordinarily, can only be desired for purposes of commerce or intt^rcourse with the- nation to whose .Territories, in their whole extent, they are confined. And as every nation, strictly, has a right to interdict all foreign com- merce, and to exclude all foreigners from its Territories, as is done, • In a considerable degree, by China, it follows that every one has a right, generally, to prohibit an entry into such rivers, or the use of its artifichil roads. This right of prohibition exists when^ the direct object of the visit of foreigners is social or commercial The end be- ing forbidden, the means necessary to its accomplishment may be righi- fully withheld. But, If an innocent passage is dematideil for pui^ioses uncoi^nectcd with tlie commerce or society of the State tlirough whidt^^ it ill righ^ mer ries well M oseol of and were k. % :' »J. -f^. [Doc No. 48.] e4 21 it' to fwaiml, it cmnot justly be denied. In the enJAjment of tbi* right of pMHage, the une of the Territories, in which It is txerted, is meitlj collaterial. If it be for purposes uf lawAil war, the end car- ries the means ; and the neutral cannot deny the passage without weighty considerations. ** But the right of the inhabitants^of the upper banlc of a river to the use of its navigation in its oassage to the sea, through the territories of another Sovereign, stands upon other and stronger ground. If th«y were to bring forward the pretension to traile, or ojien other inter- course with the nation inhabiting the banlcH below, against its consent, they would And no support or countenance in reason, or in the law of nature. But it is inconceivable upon what just grounds a nation l>c- low can oppose the right of tliat above to pass through a great natu- ral highway into the sea, that it may trade or hold intercourse with other nations by their consent From the very natureof siich a river, it must, in respect to its navigable uses, be considered as common to all the nations who inhabit its banks, as a free gift, flowing from the bounty of Heaven, intended for all whose lots are cast upon its bor- ders ; and, in this latter respect, it is clearly distinguishable from ca- nals and works of art, from the use of which, being erected at tlie ex- ' pense of one, all others may be excluded. The right to prohibit the use of natural channels, deduced in the British paper, from that of the exclusive nature of those of an artiftcial kind, would establish the power, if it were practicable, to forbid the ei\joyment of the. showers of rain which are equally dispensed by the Author of all Ciood, be- cause the gardener may lawfully deny tlie employment of his watering vpssein iti the irrigation of any grounds but his own. Thf land may be divided through which a river passes, or which composes its bed, by artificial lines of demarcation ; but the water itself is incapable of such a division. It Ih confluent and continuous. And that portion of the floating mass which is now in the territorial dominion of the lower ■ tliation, was yesterday under that of Hie nation above ; and, contemning' alike the authority of all, will, to-morrow, be in that ocean to which the. presumptuous sway of no one has as yet been lawfully extended. The incontestible right which one nation haM to trade with others, by their consent, carries along with it that of using those navigable means ne- cessary to its enjoyment, which the bounty of nature has provided fqr all, in respect to seas, and, in regard to rivers, for the nations who in- habit them. ** The British paper inquires if the American Government can mean' to insist 6n a demand, involving such consequences as it describes, without being prepared to apply, by reciprocity, tlie principle on whitph the demand rests, in fkvor of Great Britain ? The American Govern* ment has not contended, and does not mean to contend, for any princ|-i>, pie, the benefit of which, in analogous circumstances, it would* deir|r' to Great Britain. Accordingly, with respect to that branch of tiie Op- lumbia which rises north of thi parallel 49, (should that parallel M miitudly ftgi^eedto as the boundary between the territbriesnf thc^wo Pov^wpSy ) R case analogous to thM of the St. Lawrence will be presented. I / v.. ID9C. No. 4a.] / ,- ■i r- i I- * And YOU have been liercinbeforo instructed, in the event of thiit brancli being navigable within tha Biitinh territory, to atipul^te for the right of navigating tlic Columbia to tlie ocean, in bohalf of Britiah Hubjecta. In rrgaid to the MiNHiHNi|iui, (tlie example put by tlio BH> ti4h PlenipotentiHi'icd.) " ''"■'tl'i^i* exploration of the country ahall de- vctope a connexion between that river and Upiier Canada, ainiilar to tliat which exists between the United States and the St Lawrence, the American Government, always fHithful to principles, would be ready to apply to the MisHissippi the doctrines which it' now holds in regard to ibt great northern rival. It is not neceasary to diacusa all the extreme cases whicii may be fancifully suggested, such as a fo- reign claim to pass the Isthmus of Diirien, to drive a trade between £uro|»e and distant ludiu. throiigli two oceans ; or that of passing through England to trade witii France or other |)ortions of the £u>. ropcan continent. Examplrs of that kind belong to the species of so- phistry which would subvert all principles, by pushing tlieir assumed consequcnres into the regions of extravagant supfiosition. <*The British pa|ier denies that tlie engagements of Paris, in 1814, and at Vienna in tlie fcillowing year, between the Powers of Europe, in respect to 'the na\ igation of rivers, give any countenance to the natural riglit assorted by tliis Ciovernment. ^t is difficult to conceive what other princi]tle than that of a strong s^nse of the ii\justice of withliolding fitim nations, whose territories are washed by rivers, tlat privilegeof their navigation, dictated those engagements. I'he clause, cited in the paper under consideration, is not in tlie nature of an original grant, but appears to be founded on a pre-existing (and which could be no uttier than a natural) right. * The Po\vers w, whobe territories are ''rossed t>y the same river ; and it is not stipu- lated that their use of the right of navigation was to remain in abey- ance until the manner of its enjoyment was regulated by the consent of all the interested Powers. (In the contrary, it cannot be doubted, that it was the understanding of the great Powers at Vienna, that all the States, concerned in the navigation of tlie Rhine and the other enumerated rivers, were to be forthwith let into the enjoyment of the navigation of them, whether it was previously regulated, or not, hy common consent. Without such an understanding, it is manifest that any one of the States, by withholding its assent to proposed regiita- tiona, upon real or ostensible grounils of objection, might indefinitely, nosiiione, if not altogether defeat, the exercise of the recognized right.. The fact of subjecting tbe use of a right to treaty regulations, as waa proposed ftt Vienna to be done with the navigation of tiie Eui^ipeaiv rivers, and as was also done in the case of the Datpube, and other in-, stances cited, does not prove that the origin of the right is ttmyren- tional, and not natural. It often happens to bo highly convenient, if. fcl a pjoc. No. 48.;i '0, not ■ometimes indispensable, to guard a^kihst collisions and contr^ venties, by prescribing certain rales Tor liie use of a natural risht. Tbe 1h>» or nature, tliougb sufficiently intelligible in its great outllncfl and general puqiose)), aoes not always rcuch every minute detail, wliicn is called Tor by the complicated varieties and wants of modern navigation and commerce. And hence the rigtit of navigating tho ocean itself, in many instances, principally incident to' a state of war. Is subjected, by innumcruble treaties, to various regulations. Thts* regulations— the transactions at Vienna, relative to (lie navigation of Die fiuropean rivers, and other unuloguus stipulations — sliouTd be re- garded only as the spontaneous homage of man to the superior wisdom of tbe paramount Lawgiver of the UuiverHc, by delivering his great works from tbe artificial sharlileN and sflAsh coiitrivaoces to which tliey have b««sn arbitrarily and unjustly nubjectcd. <• The force of the example in the definitive treaty of peace of 178S« between Great tiritaiii and (lie United States, by whicli tiiey stipu* latcd that the navigation of tlie river MissLsHippi, from its source t» the ocean, shall forever ri-iiiuiii True and upcii to both parlies, is not weakened by any obscrvutiuiis in the Britisli iw^ier. A strongei- case need not be presented of the admission of the piinciple ttiut a State, whose territories are washed by a river, cannot be justly excluded •from its navigation to the ocean by an intervening Power. Spain held the entire riglit bunk of the Mississippi t'roin its source to tlie ocean, and tiie left bank ti-om the ocean up tu the 3 1st degree of north lati- tude, from which point, to its source, thu residue of the left bank, ft was supiKised, belonged to the United States uitd Great Britain in severalty. Spain, with resiiect to the mouth of the Mississippi, thus stood, in 1783, in the Haute relation to the United States and tu Groat Britain, as Great Britain now does, in regard to the mouth of tlie Sj. Lawrence, to tlie United States. What was the law of that position of Spain, as solenuily declared by both the present contending parties i It was, that the navigation of tiie river Mississippi, from its source to the ocean, thatl forever remain free and open to them botli. If Great Britain, by tlie success of the war terminated in tlie treaty of 176!H was enabled to extort from France a concession of tlie free navigation of the Mississippi, as is asserted in tlie British argument, her condi- tion was not the same in 1783. Yet, amidst all her reverses, without consulting Spain, she did not scruple to contract with tbe United States for tlieir reciprocal fi*eedum of navigating the Mis8issip|ii, from its source to the ocean, through Sfianish territory, and passing the finest settlements and the largest city of Louisiana, as well us all the JSpanish fortresses of the- lower Mississippi. Is Gix'at Britain pre- pared to promulgate a Jaw for Spain to which she will not herself submit, in analogotis ciiTumstunccs ^ •« , **It is not thought to be neccMSury further to extend observatioaa' on the British paper, uimn which 1 have been conimcntuig. Ifotbers, in the course of your negotiation, should bo required, they will rei^dily yesent themselves to you. It is more agri^ile to turn from a jpro- tracted wbich^ although we aw entirely confident of having > -«»' ^t^ -«»»#l* ft I * f ' »! ft if it [pUttc. No. 48.} the right'on our side, if wo are to judge fh>mifie'imlBi,mayw^ by leaving eacji party in possession of the same opinion which he en* tertaincd at its commencement, to the consideration of some practical arrangement, which, if possible, shall reconcile the views of both. A riiver, it is manifest, may pass through the territories of several Pow- ers in such manner as that, if each were to interdict the others its navigable use, within his particular jurisdiction, every one of .thehi might be deprived of all tlio advantages of which it could be snsccpti>'* ble. And, if the United States were disposed to exert, within their' jurisdiction, a power over the St. Lawrence, similar to that which is exercised by Great Britain, British subjects could be made to expe-^' rience the same kind of inconvenience as that to which American citi* zens are now exposed. The best, and, for descending navigation, tlie only channel of the St. Lawrence between Barnbart's Island and tlie Amefican shore is within our limits : and every British boat and raft, .^ therefore, that descend the St. Lawrence^ comes within the excluslv<^ ' jurisdiction of the United States. The trade of the Upper Province is, consequently, in our powcir, and a report to the Legislature of !Stw York, under date 28tK March, 1885, (of which a copy is now put into your possession) concludes by recommending an application to Con« gress to exercise the power, tims possessed by us, in retaliation for thev act of the British Parliament of 5tk August, 1622, entitled tirely destroyed by the dttties im{insed in the act of PstrlianeMt (tf Au- gust, 1822, which, inWect, if not in form, are prohibitory. •< am ■5**^. [Doc. No. 43.] 3S nay terminate wiiicli he en. lome practical '8 of both. A several Pow- ihe others its r one of .theiii il be siisccpti- I within their that which is nade to expe- merican citi- ivigation,the land and ttie •oat and raft, Ihe exclusive [»er Province itureof >iew now put into ition to Cpn> staliation for sntitled tpted by the hitherto for. imst in their iwiilingness nnituar and all existing the Britiah t »ftheterri. e St Law. osal 9f the t and pearl ■''Montreal . bat for y British ficial; the produce, inciUen- ive bem^flt trade had trans- in valuer n of that dormlto Ml Auras mostw* y « Should not the mutual interests of tiie two countries, in respect to this trade, independent of any considerations of right in the naviga^ tinn of the St. Lawrence, produce an arrangement satisfactory to both parties ? It is a little remarkable that the opposition to such an arrangement proceeds from the party having the greatest interest in making it. That of the United States, as has been already stated, is simply to sell a surplus produce of labor. The place of its con. sumption is the West Indies. If it can be disposed of short of that glace, at Montreal or Quebec, the citizens of the United States would e content But. it' they cannot sell it in those cities ; if Great Britain, by the imposition of duties, wliich it will not bear, prevent a sale ; they then desire to exercise the privilege of passing out the St. Law- rence, and seeking a market wherever they can find it. Some portion of the produce which would take that natural dircc:tion, is now trans, ported through the great canal which unites the Hudson and Lake Erie. When the canal designed to connect the great canal with the St Lawrence, at or near Uswego, which is in con> siderable progress, shall be completed, other portions of American produce will seek the market of the city of New York, instead of that of the Canadian capitals. If another canal, which is projected, shall ever be cut, that which is proposed to unite the St. Lawrence to Lake Cbamplain, the interest of this country in the navigation of the St. Lawrence will be stiil further diminished. Contrast this state of our interest in the trade in question with that of Great Britain. It will nut be denied that the two British cities of Montreal and Que^ bee would be much benefitted by the prosecution of the trade. The British tonnage enjoys, and if the navigation of tiie St Lawrence were free- ly thrown open to us, would probably continue to enjoy, the monopo. ly of the exportation of our produce, either as British or American {iroprty, to foreign possessions. Tliat produce serves to swell the ist of articles of general commerce in which Great Britain, more than other nation, is concerned, and ministers directly to the wants of British colonies. If it enters somewhat into competition with simi. lar produce of Canadian origin, that consideration should be neutral- ized, by the fact, that the British West India colonist enjoys the benefit of the competition. For it cannot be supposed to be a part 0f British policy to shut up the American supply, that one British co* lonist may thereby sell to another British colonist, at a price some- what higher than he otherwise could do, without the remotest prospect of its reduction from [fori any length of time that the exclusion and the monopoly might exist. Without evtrrJIng the comparison further, it must be evident that Great Britain is more, or at least as much, interested in the trade as we are. Our loss is not that of the entire value of the articles which are prevented from reaching a market under the operation of the British laws, but of the difference only in value, if I there ^be any, between those articles and the substitutes on which our labor exerts itself in consequence of the existence of that impedi. ment. With this view of the matter, I have prepared two articles, hvhich acconipany these instructions, under tho designation of A and '^ 26 [Dbc. No. 48.] 111 ■'t V n B ; and which may be successively proposed by you, during the pi-o- gress of the negotiatioif. Dy the first, the navigtitiuri oi' ;he St. Law- rence, up and down, from and to the siccan, is declared to belong to the citizens of the United States ; and the ports of Montreal and Que- bec are open to the importation and dis|]osal of their lumber, pot and pearl ashes, flour, and salted provisions, brought from the Lake and St. Lawrence countiy. The privilege is limited to the^e articles, because they ai*e all produced in tliat quarter, which it is important should have that vent ; and which, not being supposed to be wanted in those cities for tlie consumption of either Canada, are, subsequently^ exported from those places of entrepot to foreign countries. From thatcause, it would be unreasonable that they should be liable lo pay any higher or other duties than similar articles of Canadian origin. There is another reason for the limitation : we could not insist upon a gene- ral and indiscriminate admission into those ports of all produce and manufactures of the United States, free of duty, witliout being pre- pared to allow, as the equivalent, an admission into our northern Ter- ritories of all British produce and manufactui'es ou the same terms. But such an admission of British pi'odure and manufactures, if not unconstitutional, would be very unequal as it respects the Lake coun- try and other parts of the United States. The fii'st jai-ticle also pro- vides for a right of dcposite at Montreal and Quebec, or such other place as the British Government may designate. Possibly, the British Government may require a reciprocal privilege of introducing from the Canadas into the United States, free from dut)', and tliere disposing of Canadian lumber, pot and pearl ashes, floui , and salted provisions. Such a privilege would be of essential betiefit to the upper Province, in opening to it, thiough the canals of the State of JNew York, the market of tlie city of >jcw York. Should such a stipulation be re- quired, yon may agree to it, with a provision tiiat the inhabitants of Canada shall be subject to the payment of tlie same tolls, ferriages, and other charges, in all resjiects, as citizens of the United States, from time to time, are, or shall be liable to pay. You may also agree to add furs and |)eltries to the list of articles which each party may introduce into the territories of the other, free from duty. This would be a stipulation very advantageous to Great Britain, in opening a shorter .and better route to the ocean for those articles, than that through the St. Lawrence. «Bythe second article, ourrightsof navigation, and to a place of de- posite simply, is stipulated, without the privilege of introducing into the Canaclas any articles whatever of American produce. Both arti- cles secure to British subjects the right freely to navigate tlie St. Lawrence, where the channel is within our exclusive jurisdiction. The lii-st w (uild sccuro all that we can ask ; the second the least that wo can take. ** We could not rightfully object to a refusal to allow sales of Ameri- can produce, free of duty, within British jurisdicticm, however un- friendly it would be. But, in that case, there ought to be no limita- tion of the articles of our export or import trade. On the supposition of [Doc. No. 43.] • such a refusal, the Canadas would be strictly entrepdts, and not places of consumption of tlie objects of our trade, in either of its directions ; - and, therefore, there should be no restriction, as to what we should, or should not, export or import. « Between the maximum and the minimum, which those two articles present, there are several intervening modifications, of which I will now specify some that present tiiemselves, and to which, if you cannot do better, you are authorized to agreo : ** 1. It may be proposed to limit the right of deposite to Quebec. " 2. The sale of our produce may be limited to the port of Quebec; and, «3. The list may be increased of the articles which we may be al- lowed to sell, at either or both of those cities, free of (hity, so as to in- clude all, or other, articles of the growtii, produce, or manufsictiiies,of the United States, with tlic permission to import into the United States similar produce of Caiiiulian origin, without any correspond- ing privilege, of introducing into them British, European^ or othor foi-cign manufactures. *»lf you should find the Brit'sh Government unwilling to agree to either of the two preceding articles, with or without the modifications,, , or some of them, abovementioned, you will decline entering into any arrangement upon the subject of the navigation of tlic St. Lawrence^ and take any counter proposals, which they may offer, for reference to your Government. Neither the third article of the treaty of 1794, nor that which was proposed by either party at the negotiation of the* convention of 1815, nor that which was offered by Lord Castlereagh» in March, 1817, would serve as a proper basis to regulate the right which we claim to the navigation of the St. Lawrence. Without ad- verting to any other, decisive objections to the tliird article of the treaty of 1794, are, that it comprehended tlie Indians on both sides of the boundary between the territories of the United States and Great Britain ; and left Great Britain at full liberty to impose whatever du- ties her policy miglit dictate, upon our produce entering the Cana- dian ports. The act of Parliament of August, 1 822, would not be con- trary to the stipulations of that article. The latter objection equally applies to both the American and British projects of an article, which were proposed, but neither of wliicli was agreed to, in the negotiation of 1 8 1 5, as well as to that of Lord Castlercagh. Nor would the United States find any protection against the exercise of tlie power of im- posing duties, by agreeing to the ordinary stipulation in commercial treaties, restricting the duties imposed to the rate at which similar articles are liable when imported from otiier countries. Bc( ause, in point of fact, no article, similar to those which are imported from our northern Territory into Canada, is introduced there from any foreign country. No foreign country stands in a similar relation to Canada, that the northern parts of the United States do. And Great Britain would not, therefore, be restrained from imposing duties upon our produce, which should even be prohibitory in their effect^ by their operation upon similarproduce of other countries. r'M I »^ w : % .11 i\ I II [Doc. No. 48.] « Whilst Great Britain maybe unwilling to enter into any treaty stipulationB, aclinowledging our riglit to the navigation of the SL liawrence, she may not be indisposed to consent, by her own volun- tary act, to repeal all prohibitory and other duties imposed on Ame-^ rican produce, so as to admit it into the ports of Montreal and Que. bee on the same terms as the same l&ind of produce is received front Upper Canada. Such an equal admission of our produce, would, in a great measure, supersede the necessity of discussing and settling, at tliis time, our right to the navigation ot the St. Lawrence, and of con- siiiecing the regulations which the intei'ests of both parties might re* quire in tho practical exercise of the rigiit. Uur citizens would enjoy, ill thase cities, a ready and certain marliet for their produce, to ob- tain which, would be the primary object of securing ta them the na> ligation of the St Lawrence. It is because we cannot demand such an admission and privilege of selling our produce, as a matter of right, and because Great Britain may decline the concession of it, although manifestly beneficial to herself, that we desire to have this interest placed upon some solid and permanent foundation. But, if you should be unable to obtain the British assrnt to either of the ar- tides proposed, with or without any of the modifications of tlieni, which have been suggested, it would then be satisfactory to htive the assu- i*ance of the British Government that our piodure, or. at least, the principle articles of it. which have been mentioned, shall be received at Montreal and Quebec on the .same terms as the like kinds of Ca- nadian produce are there received. And you may, in turn, assure the British Government that the President will rccommeijd to Congress to reciprocate any British acts of liberality and good neighborhood, in regard to the admission and sale of American produce in the Ca^ nadas, by acts of equal liberality and good neighborhood, on our side, in respect to the admission and sale of Canadian produce in the Unit- ed States. It is within the competency of the mutual legislation of the two countries to remove many of the existing causes of complaint, without either party conceding or renouncing rights which there might be an unwillingness to admit or surrender. '» By an act of the British Parliament, passed on tlie 5th July, 1825, entitled r. at least, the ihall be received kc kinds of Ga- turn, assure the eijd to Congress ' neighborhood, duce in the Ca^- od, on our side, Jce in the Unit- 'gislation of the of complaint, s which there Jth July, 1825, sh Possessions Adas, from the ng to them, of lut such goods pay the same warehoused at ler certain re- the port are promulgated, S9, 30,31, authority. It leasure, from ions. If. by irevail on the^ ;atioB of the [Doc. No. 4d.] 1 8t Lawrence, In the manner which has been herein proposed,) the [privilege of warehousing our produce was placed on a more stable f footing, and we were allowed to ' xport it in our own vessels, it would ' be a considerable improvement of the existing state of things. « During the negotiation between Mr. Rush and the Britisli Plenipo- jtentiaries, a desire was manifested by the latter to couple together the [disputod points under the fifth article of the Treaty of Ghent, and [the right asserted by the United States to the fi'ee navigation of the St. Lawrence ; and, on tlie supposition of those two subjects being ; so blended, the British Plenipotentiaries stated that they were even I prepared to make offers of compromise and settlement, founded *on a I most libei'al and comprehensive view of the wishes and interests of ^the United States.' (See pages from 80 to 86 of the pamphlet, and protocols of the 17th and 18th conferences.) These offers were to be made on the basis of the United States waiving their right to the navigation of the St. Lawrence, which, however. Great Britain was willing to grant to them on a full equivalent ; and that equivalent, it is to be inferred, was expected, by thi* British Plenipotentiaries, to be furnished in the disputed territory to wliich the fifth article of the Treaty of Ghent relates. What those offers were, they declined to communicate to Mr. Rush, although invited to do so, in order that he might transmit them to his Government 'l*he Government of the United States cannot consent to renounce a right which they conceive belongs to them by the highest species of title. If, as the British CK>vernment professes to believe, the right has no just foundation, why does it insist upon its renunciation ? Mor can this Government agree to barter away any portion of the territorial sovereignty of Maine, or the proprietary rights of the Commonwealth of Massachusetts, for the navigation of a river in which neither of them has any direct in- terest. If the question of the navigation of the St Lawrence could be accommodated in a manner satisfactory to both parties, so as to let the citizens of the United States into the practical and beneficial en- joyment of it. their Government would be willing that the arrange- ment should be equally silent in regard to the admission on the one side, or the abandonmei|( im the other, of the right as claimed and de- nied by the parties, respectively. It is not easy to comprehend why the British Plenipotentiaries withheld the commutiication, to Mr. Bush, of the very liberal offers which, according to their account of them, they were charged to make. When they appeared disposed to yield to the separation of the two subjects, as urged by Mr. Rush, they still declined to make this proposal of compromise in i-espect to the northeastern boundary. Under a belief that no prejudice can re- sult to either party from a full communication and a fair considera- tion of those offers, in respect to either or both questions, you will in- vite a disclosure of them, for reference home. It is obvious, that no instructions, adapted to them, can be given, until they are known ; nor can we come under any preliminary obligation as the price of their communication. If they are ever intended by Great Britain to be brought forward, the sooner it is done tite better for the economy of flme, and the speetly settlement of the questions, should they prove \ ( 10 [Boc. No. 43.1 acceptable to this Gorernraeiit. Had tliey been communicated to Mr. Rush, the delay would have been avoided which must now take place from your transmitting them totiie United States, and receiving from hence tlie necessary instructions, if the offers should bo made known to you.** Extracts of a letter from Mr, Clay to Mr. Qallatin, Envoy Extraordu ry attd Minister FUnipotentiary to Great Britain, dated LexingtoUf Sth Mgitst, 1826. ** Tour letter, under date of New York, on the S9th of June last, having been duly received at the Department of State, and submitted to tlie President, was subsequently tr 4liA Indiana oifiiafi>i1 witliin mil' ISmSta. 'PliA aatna nhaAPvatinna' with the Indians situated within our limits, are applicable to Lake Champlain." The same observations Extract of a letter from Mr, OaUatin to Mr. Clay, dated London, Qlst September, 182r> *'The Britloh Pleniiiotentiaries will not entertain any proposition respecting the navigation of the St. Lawrence, founded on the right claimed by the United States to navigate that river to the sea. %^* 02 CDoc. No. 48.] «< Although it nay prove hereafter expedient to make a temporary agi-eement, without reference to the right, (which I am not authorized to do,) 1 am satiufied that, for tlie present, at least, and whilst the in- tercourse with the British West Indies remains interdicted, it is best to leave that by land or inland navigation with the North American British Provinces, to be regulated by the laws of each country, re* spectively. The British Government will not, whilst the present state of things continues, throw any impediment in the way of that intercourse, if the United States will permit it to continue." ) s «Vr. OaUatin to Mr. Clay, LoNDoir, Ut October, 18t7. Sir : I had, at an early stage of the negotiations, ascertained, not only that no arrangement, founded on a recognition of the right of the river ht. Lawrence to the sea, was practicable, but that there waa a sensibility on that subject which rendered it preferable not to ap- proach it till all others, and particularly that of the Colonial Inter- course, had been disposed of. It was, therefore, only after it had been distinctly ascertained, at the interview of the 1 3th instant, [ulti- mo,] with Mr. Huskisson and Lord Dudley, that there was no chance left of tlie intercourse with the British West Indies being opened, and after the principles of the Convention respecting the Northeast boun- dary had been substantially agreed to, that I brought forward the question officially at our conferences. I did it without any hope of succeeding, but because this negotiation being the continuation of that of 1 824. 1 apprehended that to omit altogether this subject, might bt construed as an abandonment of the right of the United States. To my first suggestion, the British Plenipotentiai'ies replied, that, however well disposed Great Britain might be to treat with the Unit- ad States respecting tlie fi*i>e navigation of the river St. Lawrence, as a question of mutual convenience, yet the views of tlio British Go- vernment hejng the same now as they were in 1 824, and they being prohibited by express instructions from entering into any discussion respecting the free navigation of that river, if claimed as heretofore, by the United States, on the ground of right, they could not entertain any proposition to that effect, if now maae by me. It is sufficiently obvious, that the determination of the British Plenipotentiaries, not t(^ enter into any discussion of the subject, was applicable to themselves, and conM not prevent my offering any pro- position, or annexing to the Protocol any argument in the support of it, which I might think praper. But it appeared to me altogether unnecessary, if not injurious, to commit my Government, by present- ing any specific proposal, with the certainty of itd being rejected ; or to make this Government commit itself still further, by reiterating its positive refusal to treat on the ground of a right oa the part of the [Doc. No. 43.] 38 United States. I therefore made the entry which you will see in the Protocol ol'tho 20th conference, and which is sittUcient for th«- object I had in view. You had, by your despatch of 8th AuguHt, 1826 in conformity with my own wishes, so far enlarged my instructions us to authorize me to judge which method would be the most eligible for the purpose of obtaining, at all events, the admission of American produce at Quebec or Montreal, fiin: of duty ; whether that by treaty* or that by acts of separate ioglslation. The alternative was not with- in my reach, as any provision reserving the right of the United States to the free navigation of the St. Lawrence, either expretisly, or by implication, was, in the present temper of this Government, out of the question. But, had it been in my power to select the mode. I would have resorted to that suggested in the original instructions^ being fully satisfied that wo may, with confidence, rely on the obvious interest of Great Britain to remove every restriction on the expurta* tion of American produce through Canada, and need not resort to any treaty stipulation short of at least a liberty, in perpetuity, to nar yigate the river, through its whole extent. Whatever motives may have induced the measures which gave rise to the first complainis of our citizens, a different policy now prevails. In consequence of the extension of the warehousing system to the ports of Quebec, Montreal, and St John's, places of deposite are, in fact, al- lowed for every s^iccics of American produce, free of duty, in case of exportation, which is all, that, in that rcs|iect, welcould ask, as a mat- ter of right. I'he navigation between Montreal and Quebec, either to the sea, or from the sea. has not been granted ; and it is precisely what cannot now be obtained by a ti*eaty stipulation, without what would be tantamoniit to a disclaimer of the right. But I do not think that, in practice, this will be much longer de- nied. There is certainly a dis|H>sitlon, not evinced on former occa- sions, to make the navigation free ; provided it was -not asked as a matter of right : and generally to encourage the intercourse between the United States and the adjacent British Provinces. This cliange of disposition is undoubtedly due, in part, to the wish of obtaining supplies for the West India Colonies, whilst the intercourse between these and the United States remains interdicted. But it a!io must bo ascribed to more correct views of what is so clearly the interest, and ought to be the policy, of Gi-eat Britain, in that quarter. It is certainly an extraoi'dinary circumstance, that the great importance of the American inland commerce to her own navigation, and to the prosperity of Canada, should not have been sooner strongly felt, and particularly attended to ; that tlie obstacles to an intercourse, by which American produce is exported through Q lebec, in preference to the ports of the United States, should have arisen on the part of Great Britain, and not of the United States. It is, therefore, to that mode of attaining the object in view, that I have turned my attention. The considerations which recommend the policy of removing, by their own acts, the practical inconvenience* which still embarrass the intercourse, liave heen stated, generally^ to 5 .( f '1 ') 1 J ■•■\.f" r * ! : ' * lO — i l ■ — L.. I .. .tT'tlk '«^%i«^;.#* ' '^ anortwr..^ / (_Uoc. No. 48.] tlio British I'iPiiipotcntiarics, but witli more Turce, and more in de- tail to Lord Dudlcy« and to otiic;r members of tlio cnbinot. In an in- terview I iiad to-ilay with his Lunlship, nt'tcr having cxpri'ssed my rrgi'ct that no arrnngcment rouM, at thin time, he made tm tliat siil)ject. and after having urged the other i-easons wliicli should induce Great Britain no longer to pi-cvont the navigation of the American raft, boats, and vessels, between Montreal and Quebec ; tliat, if she persis- ted in denying it, although I had no authority to say sucli was the in- tention of my Government, yet it seemed a natural ron^.vqnenre, and ought not to be considered as giving offence, that the l^ttited States should adopt correspimding measures in regard to tlie tiavigation of the river St. Lawi-ence, within their own limits. Lord Diidlcy, who had appeared to acquiesce in my general remarks, made no observa- tion on the last suggestion. But, what is somewliat remarkable is, that he, and several of the otiier Ministers with wlioni I liave conversed, have expressed a doubt whether I was not mistaken in asserting that the navigation of the river was interdicted to our boatf) between Montreal and Quebec. Upon tlie whole, I have great hopes tii, t setting aside the abstract question of right, and though no arrangement, by treaty, shouhl take Slacc. our citizens will, ere long, and through the acts of Great Iritain alone, enjoy all the beneiits of the navigation which tliey could obtain, even if the right were recognized. Siiould this expec- tation be disappointed, it is probable tliat a sulliciciit remedy will be found in the power to retaliate above St. Ucgis. 1 have the honor to be« &c. ALBKRT GALLATIN. Hon. Henry Ci.at, Secretary of State, irasltington. (U.) ^meriain paper on the J^'avigationofthe St. Lawrence, (18/// Vrutacol.) The piglit of the People of the United States to navigate the river- St Lawrence, to and from the si'a, has never yet been discussed between the Governments of tiie United States and Great Britain. If it has not been distinctly asserted by tlie 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 magni- tude, has, it may almost be said, originated since the acknowledg- ment of tlie independence of the United States, in 1783. This river is the only outlet provided by nature for the inhabitants of several among the largest and most jiopulous 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 heretufoi>e asserted by the Government in behalf of the people of other [Doc. No. 43.] II poi'tiuiiH ul' tlio United States, in relation to the i-iver Mississij)])!. It iias Nonietinies been said, tliat tlic posscHsioh by one nation of both the NJiorcs of a river at its moutli, given tlie right of obtitnicting the na< vigation of it to the peojile or other nations living on the banks above; but it remains to be shown upon what satisractory grounds the as- sumption by the nation below or exclusive jurisdiction over a river, thus situated, <-an be placed. The common right to navigate it, is, on the utiier hand, a right of nature. This is a principle w hich, it is con- ceived, will be found to have the sanction of the must revered authori- ties of ancient and modern times ; and, if thcfe have been temporary occasions when it has been questioned, it is not known that the rea- sons upon which it rests, as dcv(«loped in the most approved works upon public law, have ever been inijiugned. As a general principle, it stands unshaken. The dispute relative to the Sclu'ldt, in 1784. is, perhaps, the occasion when the argument ilrawn from natural right was must attempted to be impeached. Here tlio circumstances were altogether peculiar. Amongst others, it is known to have been al- leged by the Dutch, that the whole course of the two branches of this I'iver, which passed within the dominions of Holland, was entirely ar* tificial ; that it owed its existence to the skill and labor of Dutchmen ; tiiat its banks had been reared up at immense cost> and were in like manner maintained. Hence, probably, the motive for that stipula- tion in the treaty of Monster, wliicli had continued for more than a century, that the lower Scheldt, with the canals of Sns and Swin, and otiicr mouths ttf the sea htu'dering upon them, should be kept closed on the side belonging to the States, lint the case of the St. Lawi*cnco is totally dilierent. Special, also, as seemed the grounds which the Dutch took as against the Emperoi* of Germany, in this case of the Scheldt, and, althougli they also stood upon a specific and positive compact, of long duration, it is. nevertheless, known that the public voice of Europe, on this part of the dispute, preponderated against them. It may well have done so, since there is no sentiment more deeply and universally felt than that the ocean is free to uU men, and the waters that How into it, to those whose home is upon their shores. In nearly every part of tlie world we find this natural right acknow- ledged, by laying navigable rivers open to all tiie inhabitants of their banks ; and, wherever the stream, entering the limits of another so- ciety or nation, has been interdicted to the upper iidiabitants, it has been an act of farce by a sti-onger against a weaker party, and con- demned by tiic judgment of mankind. The right of the npiwr inha- bitants to the full use of tlie stream, rests upim the same imperious wants as that of the lowei- ; u\m\ the same intrinsic necessity of par- tici|iating in tlie benefits of this flowing element. Rivers were given for the use of all persons living in the country of which they niakc a pai-t, and a primary use of navigable ones is that of external commerce. The public good of nations is the object of the law of nations, as that of individuals is of municipal law. Ti>e 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, i » M :?=r.-Ss5r3:4 f«s^c^; 1 y-i It: '■• V 86 [Doc. No. 48.] nati(mat or municipal, whose haniH in laid in moral right, and ulicso aim is tlit* uniterNal good. All (hat run be ic(|uir(Ml under a priMci- ple HO incontcfltible, ho wIhc. and, in itH permanent rentilts upon the great raliHr of human society, no bcncticent, ia, that rcasonabie coinpenNatioti be made whenever the general good calh lor partial BarriiiceN, whether from individuals in a local Jiii-isdiction, or from one nation considered as an integral part of tlio family of nations. This is accordingly done in the ciiNe of roads, and the right of way, in single communities ; and is admitted to bo Just, in the form of moderate tolls, where a foi-eign passage takes place through a natu- ral current, kept in repair by tlie nation holding its sliores below. The latter predicament is not supposed to ho that of the St. Lawrence at this day, since it is not known that any artificial cimstructions, looking simply to its navigation, have yet been employed, cither upon its banks, or in kee|iing the channel clear. I'his has been the case, in connexion with other facMities and protection aflfordcd to naviga- tion, with the Elbe, the IVlHcse. the VVesei-, the Oder, and various other rivers of Europe that might be nuuied ; and the inciih'ntal riglit of toll has followed. It may be mentioned, however, as a fact, under hi»i iicad, tliat the prevailing disposition of Eui'o{ie defeated an attempt, once made by lienmark, to exact a toll at the mouth of the Elbe, by means of a fort on the licdstcin side, which commanded it. The Sound dues have l>een admitted in favor of Uenmark, but not always without scrutiny. an a ut the ies, tiiat and the stipula- »c rivers )r with- 1 unjust ny have of that (elusive shores. ]>resent |)erscde recent, They er may nation [Doc. No. 48. J 89^ over a river, under the rirnimNtances in question, the cluini, if found- ed ill Hii alleged right of sovereignty, coufd, at best, oiil^ be supjHwed to Kpi-ing from the scn-ial compact : whereas the right of naviga* ing the river, is a riglit of nature, prc-existent in point of time, not necessary to have been surrendered u|i for any purpose of the com- mon good, and unsusceptible of annihilation. Thci-e is no principle of national law, and univeraul justice, upon which the provislotis of the V ienna treaties are founded, that docs not apply to sustain the ri^htof the People of the United States to navigutu the St. Lawrence. The relations between the soil and the water, and those of man to both, form the eternal basis of this right. These relations are too intimate and powerful to be separated. A nation deprived of the use of the water flowing tlirough its soil, would sec itself strip|>cd of many of the most beneflciul uses of the soil itself ; so that its riglit to use the water, and fi-eely to pass over it, becomes an indis|)cnsablo adjunct to its territorial rights. It is a means so interwoven with the end, that to disjoin them would bo to destroy the end. \Vhy should the water impart its fertility to the earth, if the products of of the latter are to be left to jierisli upon tlie shores ? It may be projier to advert to the footing, in |H)int of fact, ii|)on which the navigation of this river stands, at present, between the two countries, so far as the regulations of Great Britain are concerned. The act of Parliament, of the Sd of Geo. IV, chapter 119, August 5, 1 822, has |K;rinitted the importation from the United States, by land, or water, into any port of entry in cither of the Canadas, at which there is a customhouse, of certain articles of the United States, enumeratid in a schedule, subject to the duties which arc specified in another schedule. Under the former schedule, many of the most im- portant articles of the United Slates are excluded ; and, under the latter, the duties arc so high as to be equivalent to a prohibition of some that are nominally admitted. The foregoing act lays no impo- sitions on the .merchandise of the United States descending the St. Lawrence with a view to exportation on the ocean ; but an act of Par- liament of 1821 docs, viz, : uimn the timber and lumber of the United States. Such, in general terms, is the footing upon wiiicli the inter- course is placed bv the British acts, ;>nd it may be alike proper, in connexion with this reference to ii, to mention the conditions of in- tercourse which it has superseded. To whatever observations the duties imposed on the products of the United States, imported for sale into the ports of Canada, may otherwise be liable, as well as the ex- clusion of some of them altogether, it will be understood that it is only the unobstructed passage of the river, considered as a common highway, that is claimed as a right. By the ti-eaty stipulations of November, 1794, between the two countries, the United States were allowed to import into the two Canadas all articles of merchandise, the importation of which was not entirely prohibited, subject to no other duties than were payable ty British subjects on the importa- tion of the same articles from Europe into the Canadas. The same latitude of importation was allowed into the United States from the 1 I ! il .■V ^ ^-H^.-*UWjM. <'«f^ >♦ 38 [Doc. No. 48.] U • I 1/ » t Canadas, subject to no other duties than were payable on tlie impui- tation of Mic same ai-ticles into the Atlantic ports of tlie United Statrs. Peltries wei-e made free on both sides. All tolls and rates of ferriage \\ere to be the same upon the inhabitants of both countries. No transit duties at portages, or carrying ;;laces, were to be levied on eitlier side. 'I'liese provisions were declared, in the treaty, to be de- signed tn secure, to both parties, the local advantages common to butli, and to promote a disposition favorable to fricndsiiip and good ncigli 1)01 hood. Tlie waters on each side were made free, with the ex- ception, reciprocally, at that time, of vessels of the United States going to the seapnits of the British territories, or navigating their rivers between their mouths and the highest jmrt of entry from the sea ; and of British vessels navigating the rivers of the United States beyond the highest ports of entry from the sea. These treaty regu- lations ai-e lound among the articles declared, when the instrument wiis made, to be |)ermanent. Both countries continued to abide by tlifui, until Great Britain passed the acts above recited, by which it appears that she has considered the intervening war of 1812, as ab- rogating the whole of the treaty of November, 1794. The United States have continued to allow, up to the prescnt.time, its iirovisiuns, regulating this intercourse, to oiierate in favor of the Canadas. By the act of Parliament, of the 3d of George IV, ciiapter 44, taken in conjunction with the act of the same year, chapter 1 1 9, above men- tioned, the right of the vessels of the United States to the whole na- vigation of the St. Lawrence appears to be taken for granted : by the first, from the ocean tn Quebec ; and, by the second, from any part of the tcritoiries of the United States to Quebec. But a discretionary power is given to the Colonial Governments in ('anada, to do away the effect of the latter permission, by excepting any of the Canadian posts from those to which the vessels of the United States arc, by tiie act, made admissible ; whilst the duties which it imposes upon such of the exports of tlie United States as could alone render the trade profitable, are prohibitory. But it is the right of navigating this river upon a basis of certainty, without obstruction or hindrance of any kitiii, or regii- istruiiient ) abide by Y which it 12, as ab- lie Uiiifcd ivjvisioiis, an ag- e of the ;gested iral one al con- cernment and attention. Having seen the grounds of necessity and reason upon which the right of so great and growing a population, to , seek its only natural patli-way to the ocean, rests, it may be expected that they should be supported by the established principles oF interna- tional law. This shall be done by the citation of passages from the writings of the most eminent publicists, always bearing in mind that the right, under discussion, becomes strong in proportion to the ex- tent which the country of the upper inhabitants, in its connexion with the stream, bears to the country of the lower inhabitants. A'^attel, in book 2, ch. 9, sec. 127, lays down the following as a general position: '* Nature, who designs her gifts for the common advantage of men, « does not allow of their being kept from their use, when they can be '< furnished with tlicm, without any prejudice to the proprietor, and by " leaving still untouched all the utility and advantages he is capable «of receiving from his rights." The same autiior, same book, ch. 10, sec. 132, says, " Property cannot deprive nations of tlic general right "of travelling over the earth, in order to have a communication with *' each other, for carrying on trade and other just reasons. Tlic mas- ** ter of a country may only refuse the passage on particular occasions, '• where he finds it is prejudicial or dangerous." In sec. 1 34. he adds, " A passage ought, also, to be granted for mercliandise, and as this " may, in common, be done without inconvenience, to rofiisc it, with- " out just reason, is injui-ing a nation, and endeavoring to deprive it "of the means of carrying on a trade with other States ; if the pas- •' sage occasion any inconvenience, any expense for the preservation *• of canals and highways, it may be recompensed by the rights of " toll." Again, in bonk ], ch. 22, sec. 266, we are told, that, if '• nei- " ther the one nor the other of two nations, near a river, can prove " that it settled first, it is to be supposed that they botli came there at " the same time, since neither can give any reason of preference; and, *' in this case, the dominion of each will be exteinlcd to the middle of " the river." This is a principle too relevant to the doctritie under consideration to be passed over without remark. It relates, as will be seen, to dominion, and not to right of passage simply. Nt:w, if simultaneous settlement confers cocquality of dominiini, by even stronger reason will simultaneous acquisition confer coequality of passage. Without inquiring into the state of the navigation of the St. Lawrence as between Great Britain and France, prior to the peace of 1763, it is sufHcient that, in the w.ir of 175G-G3, which preceded that Peace, the people of the United States, in their capacity of English subjects, contributed, jointly with the parent State, (and largely, it may be added, with historical truth,) towards gaining the Canadas from France. The right of passage, therefore, of this river, admitting that it did nut exist before, was, in point of fact, o|)cned to the early inhabitants of New York atid Pennsylvania, at an epoch at least as soon as to British subjects living, afterwards, in the newly conquered possessions. A title thus derived, is not in- voked as resting upon the same ground with the title derived from niitnral right : but it serves to strengthen it, and is of pertinent ap- -% - 40 fDoc. No. 43.] :J h lit ^■A plication, .IS against Great Britain, in this instance. Let it be looked at under eitlier of the following alternatives which present them- selves. If Great Britain possessed the navigation of tiiis river prior to 1763, so did the People of the United States, as part, at that time, of her own empire. If she did not, but only first acqtiirisd it when the Canadas wci-c acquired, the People of tlie United States, acting in common with her, ac<|uired it in common, and at as early a date. It will not be said that the right which necessarily inured to the colo- nies, as part of the British empire, was lost by their subsequently taking tlio character of a distinct nation ; since it is the purpose of this paiier to show that the right of passage may, as a natural right, be claimed by one foreign nation against another, without any refer- ence whatever to antecedent circumstances. But the latter, when they.^ist, make up part of the case, and are not to be left out of view. I'hc peculiar and common origin of the title of both parties, as seen above, is calculated to illustrate more fully the principle of comnjon right, applicable to both now. The antecedent circumstances show that the natural right always appertaining to the early inhabi- tants of the shores of this river, above the Canadian line, to navigate it, has oucc been fortified by joint conquest, and by subsequent joint usufruction. One other quotation is all that will be given from the same author. It relates to a strait, and not a river ; but the reason- ing from analogy is not the less striking and appropriate. *• It must be remarked," he says, ** with regard to straits, that, when they serve for a communication between two seas, the navigation of which is common to all or many nations, he who possesses the strait cannot refuse others a passage through it, provided that passage be innocent, and attended with no danger to tlie State. Such a refusal, without just reason, would deprive these nations of an advantage granted them by nature ; and, indeed, the right of such a passage is a n^main- der of tlie primitive liberty enjoyed in common." If we consult Gro- tius, we shall find that he is equally, or more, explicit in sanctioning, in tlie largest extent, the pi-inciple contended for. He e\en goes so far as to say, after laying down generally the right of passage, that «the fears which any Power entertains of a multitude in arms, pass- ing through its territories, do not form such an exception as can do away the rule ; it not being proper or reasonable that the fears of one 1)arty should destroy the rights of another." Book 2, chap. 2, sec. 13. [n t!:c course of the same section he declares. tlt without granted remain, ult Gro. ilioning, goes so gc. that IS, pass* i can do s of one si'c. 13. is foun- eers, or I'cople, y orca- s, after atioii." s from d he is ne his. terrco' I says, [poc. No. 43.] 4i '♦was originally introduced with a reservation of that use which miglit be of general benefit, and not prejudicial to the interest of the owner." lie concludes the section in the following manner: <'A free passage ought to be allowed, not only to persons, but to merchan- dise : for no Power has a right to prevent one nation trading with another at a i*eniotc distance ; a pennission which, for the interest of society, should be maintained ; nor can it be said that any one is in- jumi by it : for, though lie may thereby bo deprived of an exclusive gain, yet the loss of what is not his due,^as a matter oj right, can ne- ver be considered as a damage, or the vicdation of a claim." After authorities of such immediate bearing on the point under considcra. tiou, further quotation will be forborne. The question of right is conceived to be made out, and if its denomination will be foun e been anxious to en* ter upon the adjustment of this part of the negotiation. A I'ight claimed without qualification on the one side, affords no room for friendly concession on the other : total admission, or total rejection, is the onl^ alternative which it presents. On looking to the objects embraced by the American claim, we find them to be of no ordinary magnitude. The United States pre- tend to no less than the perpetual enjoyment of a free, uninterrupted passage, independent of the territorial sovereign, through a large and ry im|iortant part of the British possessions in North America. They demand, as their necessary inherent right, the liberty of navi- gating tlie St. Lawrence from its source to the sea, though, in the lat- ter part of its course, Thich lies entirely wtthiii the British dominions, and comprises a space of nearly six hundred miles, that river tra- verses the finest settlements of Canada, communicates by the south witii Lake Champlain, and washes the quays of Montreal and Que- bec. A pretension which thus goes to establish a perpetual thoroughfare for the inhabitants, vessels, and productions, of a foreign country, through the heart of a Britisli colony, and under the walls of its prin- cipal fortress, has need to be substantiated on the clearest and most indisputable grounds. It requires, indeed, an enlarged view of what is owed in courtesy by one nation to another to justify the British Government in entering, at this late period, on the discussion of so novel and extensive a claim. There will, however, be little difficulty in showing, that the claim asserted by the American Plenipotentiary rests, as to any foundation of tuitural right, on an incorrect application of the authorities which he has consulted. With respect to the claim derived from an acquired title which he has also alleged, that ground of claim will I'cmain to be examined hereafter ; but it may be observed, in the outset, that the natural and acquired title depend on principles essentially distinct ; that the one cannot be used to mak^goud any defect in the other ; and although they may be possessed independently by the same claimant, that they can, in no degree, contribute to each others validity. Proceeding to consider how far the claim of the United States may be established on either of these titles, it is first necessary to inquire what must be intended by the assertion that their claim is founded on natural right. ** The right of navigating this river," says the Ame- rican Plenipotentiary, *' is a right of nature, pre-existent in point of time, not necessary to have been suri-endercd up for any purpose o£ common good, and unsusceptible of annihilation." The right here described, can be of no other than of that kind which is generally de- signated in the law of nations a perfect right. Now, a perfect right is that which exists independent of treaty ; which n<>cessarily arises from the law of natuk^ ; which is common, or may, under similar circum' « stance, be niedorinfi Such is th peace. U|>on for the Ui gable riv another p it as a coi Applying Americai justified suming t Tothi such clai under th considei The right to tained i Refei any Vd minion ceptior says V which where descri' earth ductic occup he d< those heel righi righi publ imp< pern tion I rig ^ tioi ▼ enj rftl Gi T C Ei:?-fel •*-ijt ■••*., [Doc. No. 43.] 43 »nd, rest, [•ations of the Go. 'US to en* Affords no or total Jainj, M'e fates pre. srrupted parge and 'America. of navi- theJat- Minions, fiver tra- fho south |wd Qiie. »ughfar« countiy, itsprin- ind most of what . British ion of so ^e claim 'ndation s which \cqtnred in to be :hat the iatiiict ; r;and inoant, s may iquire led on Ante, int of •se €i here y de- rhtis t'roia iuni' stance, be common to all independent nations ; and can never be de- nied or infringed, by any State, witliout a breach of the law of nations. Such is the right to navigate the ocean without molestation in time of peace. U|)on these principles, now universally received, it is contended for the United States that a nation possessing both shores of a navi- gable river at its mouth, has no right to re^se the passage of it to another possessing a part of its upper banks, and standing in need of it as a convenient channel of commercial communication with the sea. Applying the same principles to the case of the St. Lawrence, the American Government maintain that Great Britain would be no more justified in controlling Amencan navigation on that river, than in as- suming to itself a similar right of interference on the high seas. To this extent must the assumption of a perfect right be carried, or such claim is no longer to be considered in that character; but, falling under the denomination of an imperfect right, it becomes subject to considerations essentially and entirely different The first question, therefore, to be resolved, is, whether a perfect right to the free navigation of the river St Lawrence can be main- tained according to the principles and practice of the law of nations ? Referring to the most eminent writers on that subject ^ve find that any liberty of passage to be enjoyed by one nation through the do- minions of another, is treated by them as a qualified occasional ex- ception to the paramount rights of property. " The right of passage,*' says Vattel, « is also a remainder of the primitive communion in which the entire earth was common to men, and the passage was every where free according to their necessities." Grotius, in like manner, describes mankind as having, in their primitive state, enjoyed the earth and its various productions in common, until after the intro- duction of property, together with its laws, by a division or gradual occupation of the general domain. Among the natural rights, which he describes as having in part survived tliis new order of things, are those of necessity and of innocent utility ; under the latter of which he classes the right of passage. Following his principle, this natural right of passage between nation and nation, may be compared to the right of highway, as it exists, in particular communities, between the public at large and the individual proprietors of the soil, but with this important difference, that, in the former case, commanding and indis- pensable considerations of national safety, national welfare, and na- tional honor and interest must be taken especially into the account. It is clear that on this principle, there is no distinction between the right of passage by a river flowing from the possessions of one na- tion, through those of another, to the ocean, and the same right to be enjoyed by means of any highway, whether of land or of water, gene- rally accessible to the inhabitants of the earth. '< Rivers," says Grotius, «« are subject to property, though neither where they rise, «« nor where they discharge themselves, be within our Territory." The right to exclusive sovereignty over rivers, is also distinctly as- serted by Bynkershoek, in the ninth chapter of his treatise <« ou the X * *-^**. 44 I^Doc. No. 48.] S ' dominion of the sea." Nor is this, by any means, the lull latitude to 'which the priiiriplo, if applied at all, must, in fairncHs, he extended. "All nations," says Vattel, " have a general right to the innocent, use of the things wliich are unm their own country, they want to settle in some uninha- «bited land, or if they are going to traflic with some distant people, «or to recover, by a just war, what is their own right and due." For other purposes, then, besides those of trade, for objects of war, as well as for objects of peace, for all nations, no less than for any nation in particular, does the right of passage hold good under those authorities to which the American Plenipotentiary has appealed. It has already been shewn that, witli irfercnce to this right, no distinc- tion is drawn by tiiem between land and water, ami still less between one sort of river and another. It further appeai-s, from Vattel, that ihe right in question, ]tarticularly, for the conveyance of merchandise, is attached to artificial, as well as to natural, highways. •' If this passage," he observes, ''occ-asion any inconvenience, any expense *' for the preservation of canals and highways, it may be recompensed " by rights of toll." Is it then to be imagined that the American Government can mean to insist on a demand, involving such consequences, without being pre> pared to apply, by reciprocity, tiie principle on which it rests in fa- vor of Great Britain ? Though the sources of the Mississippi are now ascertained to lie within tije territory of the United States, the day cannot be distant when the inhabitants of Upper Canada will find convenience in exporting their sujierfluous produce by means of the channel of that I'iver to the ocean. A few miles of transport over lanil are of little consequence, when leading to a navigable river of such extent. £ven at the present time, a glance uiHin the map is Sufficient to shew that the course of the Hudson, connected as it now is with the watei's of the St. Lawrence, would afford a very commo* dious outlet for the pi*oduce of the Canadian provinces. The com* ])arative shortness of this passage, especially with reference to the West Indies, would amply compensate for any fair expense of tolls. It would also be, in some instances, convenient and profitable for British vessels to ascend the principal rivers of the United States, as far as their draft of water would admit, instead of depositing their merchandise, as now, at the appointed poi'ts of entr) from the sea. Nor is it probable tliat other nations would be more backward than the Bt'ilish in pressing their claim to a full participation in this advan- tage. The general principle which they would invoke, in pursuance of the example given by America, and a partial application of such prin- ciples no of a natu^ manda. veiling i»l more espl Panama.! ciple. as] to the oc^ The way ft"" ' be atteiij to the lias not I felt the I ciple, b and by ingum or is n» they hi It is right ( • li vant« right, proiK' propt make Tl ity.1 thiiil con> IWJt to j vkil cai fni it, 8C dc hi ▼ i K"-^^ -'A--'* >^ [Doc. No. 43. j 49 l»»g ex- Mil inlia- ffwople, eiplcs no country can ' j a riglit to oxpoct from another, is clearly of a nature to authorize the inoHt extraordinary and unlieard of de- mands. As for the right of passage from sea to sea, acroK& any inter* vening isthmus, such, for instance, as that of Corinth or of Suez, and, more esperially, from the Atlantic to tiie I'acific, by tlic isthmus of Panama, tliat right of passage folhtws as imincdiatciy from this prin- ciple, as any surh right claimed from one tract of land to another, or to tlie ocean, by water communication. I'he exercise of a right, which thus goes tiic length of opening a way for foreigners into tlie boswm of every country, must necessarily be attended with inconvenience, and sometimes with alarm and peril* to the State whose tcrritoiies arc to be traversed. This conse^iuence has not been overlooked by writers on tlie law of nations. They have felt t!ie necessity of ('f)ntn)lling tlie operation of so dungenms aprin- cl|)le, by restricting the right of transit to purposes of innocent utility, and by attributing to the local sovereign the exclusive power of judg- ing under what circiimst;inv-es the passage through his dominions is, or is not, to be regarded as innocent. In other words, the right which they have described is. at best, only an iMi;»e)/cc< right. It is under tlie hciul of innocent utility, that Gvotius has classed the right of passage, as before laid down in his own exjjressions. " Innocent utility," he adds, •' is when I only seek my own ad- vantage, without damaging any body else." In treating of the i^ame fight, Vattel remarl\ell by land as on a river, or on an arm of tfio sea, within our dependence. B'or besides tliat a too great aflluence of foreignei's is sometimes prejudicial or suspicious to a State, >ihy should not a Sovereign secure to his own subjects tlie Jirofit made by foreigners, under favor of the passage which be al- ows them '" " 1 admit that, in allowing foreigners to carry their mcrrhandi.se elnewhere, even without paying for the passage, we do not sustain .^tiy dautagc, an*) that they do us no wrong in pretending to an advanUj^e ot'wiiicli we might have possessed ourselves beforf them. L it, at the same time, as they have no right to exclude us from it, Wiiy should we not try to draw it to ourselves r Why should we not prefer our interest to theirs ?" Tbc same author observes, in the next section of his work* that ** a State may fairly la,<» a duty on foreign goods conveyed through << its territory, byway of compensation /or what its subjects lose by . « admitting a new contpetitor into the market." To apprcciiitt; the full force of these opinions, it must be borne in mind Ihat Putfendorf appears to sjicak of a foreign nation so situat* Oil as to depend exclusively on the passage in question for the sale of its superfluous produce, and the importation of supplies from abroad. Tliis part of the subject may be closed with the following decisive Words of Barbcyrar, in his Notes on Grotius : <' It necessarily fol- *^ lows from the righ*: of property, that the proprietor may refuse « another the use of his goods. Humanity, indeed, requires that he ** should grant that use to those who stand in need of it, when it can <« be done without any considerable inconveniency to himself; and, if ** he even then refuses it, though he transgresses his duty, he dotb << them no wrong, prtjierly so called, except they are in extreme ne« *« cessity, which is superior to all ordinary rules.'* But the American Plenipotentiary maintains that the right of passage, as understood by him in opposition to his ovn authorities, that is, independent of the sovereign's consent, and applied to the sin- gle predicament of the St Lawrence, has been substantially recogniz- ed by the Powers of Europe, in the treaties of general pacification^ concluded at Paris in 1814. and in the following year at Vienna. It is true that, in the solemn engagements then contracted by them, the Sovereigns of the leading States of Europe manifested a disposi- ' tion to facilitate commercial intercourse between their respective countries, by opening the navigation of such of the principal rivers as separated o. ^raversed the territories of several Powers, Thio policy vas applied more particularly to the Rhine, the Nfccker» the Maine, the Moselle, the Macse, and the Scheldt. But neither in the gene« ral, nor in the special stipulations, relating to the free navigation of rivers, is tlici-e any thing to countenance the principle of a natural» independent right, as asserted by the American Plenipotentiary. f VTe finfl* <*^ tween Franc once throwr rivers, it wi ritngenient I i^snemble at Ifrance. in on the bani The stipuli Vienna, c •♦ States a <» to I•e^ul Tliey clos shall not ' iering on It is e' to favor tions of tovereig common betweei Unowle* own en foreigr nation openei stipul gress opinv vhid lenc< tive izei und uni1 ho^ nta siv frs ti a e *» ise to in if b f [Doc. No. 43.] We find, on ttie contrary, that, in the treaty concluded at Paris be ^Up J n^ " °^" *!* S*"""^' navigation. With respect t. H.e ofl.Jr rr^emint toNt^^^^^ ""^^"^ «f extending tLtar- aSleitvSr» «'r'^ be de.cnnincd hy the Cougres? about to Jw in l^^^^^^^^ '" *'"• '""t^"^" "f the Rhino, it was natural for on the banlf« nf .? f P°'"'«««'""« which she ha.l for some time enjoyed on the banlts of that river, to stipulate a reserve of the navieation The st.pulat.ons relating to rive.' navigation, in the gcne.%T tS "f Vienna, commence in the following manner : " Ti.f l^lwTrs w K States are separated or c..«se,l hy the same navig SleiiveTJion ^to regulate, by common consent, all that rcga.ls tr.,av&ation^' sTt^fnotT/h'' ""h'S'"''""'"* *'''^* *'"^ res„I.?ti«ns, o^c' atted, It IS evident, thei-efore, that the allied Gove.^ments, in concurrinir S.;roT ontiSLY'S:' ''".'"i *''TS" *"« S-«* wat^rcITJu c"? Mons 01 cont.nental Europe, d.d not lose s ghtof what was iIhp f,. tl.A .overe.gnty of particular States ; and that, wl en tty rder^d 1 e common enjoyment of certain navigable risers to vXntlryco,nn.S between the parties mor« immediately concerned, tIefSuairic. knowledged the right of any one of those parties S bound bv Us own engagements, to withhold the passage, th. lugh its dlinLns fioS foreign merchant vessels. As f.eedo,„ of ..avigation in fetor of aU nations, a,.d not merely of those which bor.l?r on the rivers thu" SulatioL TfS;' rr '''' '"""?•">*« "•'J'^'^* «•■ t''^ abover;.enTio„ed gres8,,il they had felt themselves borne out by the practice or eeneral SlIlTti"^ ^TT^ ^""" ""i *'«^« hesitated to p.H^raim Te Ssurl I^Si« f^ "''"P/.f?' *" .""^ **f "•'*•"'»'' independent right. ThetrsU lence alone on this point might have been taken as stronRlv in Hca 117:I ^ht''.^"'^*?'"* ^^' P^«^«'""S "s^g^of Euroi^ would a" W ^i^Jl^iltf ''^^"/k ^V^' •"•'"'^''•'^ of mutual consent iT «1 unSZ ; ]• """' *''«.^?"?-«''y supposition, and must, at least, be understood to g.ve a special cha.acter to the engagements contracted under it, confining them to the rivers enumerate^d in th^^re^y : a .d however laudable, as an example to other States, whose cirrmstances inay allow o heir Imitating it without danger or detri^t exn"es! filml"" * " '"'^""'^ the occasion for which tlTe U ;aty'^wi It would take up too much time to demonstrate, by a detailed inves- tigation of every rase to which the American argument applie The negative proposition, that no nation exeirises the liberty of nav gating a nyer, th.-.,ugh the territories of anothe.-. except by pc-m'sslmo? tlSZl?!"*'""" T'l!'.'" *','"?*>• ^* '•'* '•'^*''«'- for the A.ncican Go- tf.eUn.ted States is exerc.scd explicitly as a natural, independent The case of the Scheldt, though referred to by the American Pleni- •^ iw —If.,, i'v.* :U-. ■^-i '•NUk . [Doc. No. 48.] potcntiary, is certftiiily not one of this kind. The leading circum- Btaiices relating to that river were, first, that its months, inrluding the canals of Sum and Swin, lay within the Dnich Territory, while piirtH of Its ii|)|»<*«' channel were situate within the Flemish provinces. Sic""«l'y» '1''"'^ ^'"^ treaty of Westphalia had ronfirined the right of the Dutch to close the mouths of the river. Thirdly, That the exer- cise of this rig'it was disputed, after a lapse of more than a hundred year*, by the Emperor of Germany : and. fourthly, that the dispute between that monarch and the Uut/h Kepuhlir terminated, in 1785, by leaving the Dutch in possession of the right which had been dis- puted. It is ti'ue that, at the latter period, the Dufrh founded their claim, In part, on the eNpense and lahor which they had undergone in improving the river; but, it is true, at the same time, that ihey also grounded it on the general law of nations. Above all. they rested it on the treaty (»f Westplriiia. But if the right of the Dutch Republic bad been roi:.itenanced by the law and practice of nations, why, it may asketl, should it have licen thought necessary to coniirnfi that right by t!ie treaty of Westphalia ? The reply is obvious, that conilrmation was tlie resort of the weak agaitist the strong : of the ft>rnier deinndents of Spain against the encroachments of a haughty p«>wcr. still sovereign of Antwerp, and the neighboring provinces, and not having yet renounced its claim of sovei-eignty over Holland itself. It was natural for the Dutch, under such circumstances, to fortify tlieir right by the general SHUcticm of Europe ; but it was not natural for the principal parties In the pacification of Munster, to lend their sanction to a measure in din'ct contradiction to acknowledged principles : or. if their scruples, as to the admission of such a mea- sure, had been removed by special motives, it is strange that they slioidd not liave ♦aken the obvious precaution of recording those mo- tives. During the discussions about the Scheldt, in 1785, the Em- press of Russia was the only Sovereign who otHcially declared an opini<»n in favor of the House of Austria. But the United States can derive no great advantage from a dcclaratiim couched in such terms as these : '• Nature herself hath granted to the Austrian Low Conn- «• tries the use and advantage of the river in dispute ; Austria alone, *• by virtue of the law of natui-e and nations, is entitled to an exclusive ** riglit to the river in question. So that the equity and disinterest- edness of Joseph II. can only impart this right to other pcopl *« it belonging exclusively to his States." The opinions proclaimed on this subject by the Russian Govern- ment are the more remarkable, as there is no country which has a greater interest than Russia in the disputed question. It is well known, that the only approach to the Russian ports on the Black Sea, from the Mediterranean and Atlantic, is by the passages of the Dardanelles and Bosphorus. These canals are. in fact, salt-water straits, com- miuiicating from sea to sea : passing, it is true, between the Turkish territories in Kurope and Asia, but with no great length of course, and leading to a vast cx^iansc of inland water, the shores of which ai** occupied by no less than 1111*06 independent Powers. f There is" ™« AatoftheSt.1 between rivers fact, the navigi Joyed b, Buss. tries, on the IB Even the navi accorded to A f^eftsion made the most ion Kood will of ** The case* this view oi ■vigation of in which Gi motives tha strained h object as tl respecting western b« the whole ■with the teservatK tion of til very fact tion in t sion of I to an in can Pie At a ject o1 fourth in 179 tween with river i(K.i « th It quo dra wit • for thi n u tl 'V' li -iVr=;.-, I- [Doc. No. 43.] H There is' tnanifcstly a wide diflTeronce between such a case and that of the St. Lawrence, nor can the marked difference in principle between rivers and straits be overlooked ; and yet, as matter of fact, the navigation of the Black Sea, and the adjacent canals, is en- joyed by Russia — by that Power which has so otten dictated its own conditions to the Porte — in virtue of a treaty, founded, like other trea- tries, on the mutual convenience and mutual advantage of the parties. Even the navigation of the Danube, downwards to the ocean, was first accorded to Austria by the Turkisli Government, as a specific con- cession made at a juncture when the Porto, involved in aquai*rcl with the most formidable of its neighbors, was compelled to propitiate tlie good will of other ChriHtian Powers. The case of the Mississippi is far from presenting an exception to this view of the subject. The treaty of 1763, which opened the na- vigation of that river to British subjects, was concluded after a war in which Great Britain had been eminently successful. The same motives that prevailed with France to cede Canada, must have re- strained her frm hazarding a continuance of hostilities for such an object as the exclusive navigation of the Mississippi. The agreement respecting that river, makes part of the general provisions as to the western boundary of the British possessions in America, by which the whole left side of the Mississippi was ceded to Great Britain, "with the exception of the town and island of New Orleans. This reservation was admitted on the express condition, that tite naviga- tion of the whole channel should be open to British subjects. The very fact of its having been thought necessary to insert this stipula- tion in the treaty, in consequence of France having retained posses- sion of both banks of the river, at a single spot, leads, irresistiblyt to an inference the very reverse of what is maintained by the Ameri- can Plenipotentiary. At a later period, the navigation of the Mississippi became a sub- ject of arrangement between Spain and the United States. By the fourth article of their treaty of boundary and navigation, concluded in 1795, a similar agreement to that which had before subsisted be- tween France and Great Britain, was effected between those Powers, with this remarkable difference, that the liberty of navigating the river was expressly confined to the " parties themselves, unless the « King of Spain," to use the words of the treaty, " should extend " the privilege to the subjects of other Powers by special conventimJ* It must not be overlooked, that, when the clause which is here quoted, and the exclusive stipulation immediately preceding it, were drawn up, the sources of the Mississippi were still supposed to be within the British territory ; and, at tlie same time, there was in force a treaty between Great Britain and the United States, declaring that «* the navigation of the river Mississippi, from its source to the « ocean, should, forever, remain free and open to the subjects of " Great Britain.*' ., .. ^ r Some additional light may, i^rhaps, be thrown on the object of the present discussion, by the quotation of a note on the fourth article 60 [Doc. No. 49.] of the Spanish trf»ty, "which is printed in the collection of the United StateH' laws, arranged and published under the authority of an act of Coitgress. It is as follows : •• Whatsoever right his Catholic Majesty had to interdict the ft«e " navigation of the Mississippi, to any nation, at the date of the tre*. « ty '>r San Lorenzo ol Real, (the srth of October, 1795,) that <• right was wholly transferred to the United States, in virtue of the « cession of Louisiana from France, by the treaty of April SOUi, « 1803. And, as the definitive treaty of peace was concluded pre- « viously to the transfer to the United States of the right of Spain ** to the dominion of the river Mississippi, and, of course, prior to tito « United States* possessing tlie Spanish right, it would seem that the « stipulation contaied in the 8ih article of the definitive treaty with <* Great Britain, could not have included any greater latitude of na^ ** vigation on the Mississippi, than that which the United States « were authorized to grant on the Sd of September, 1783." ** The additional right of sovereignty which was acquired over the « river by the cession of Louisiana, was paid for by the American Go* ** vernment ; and therefore any extension of it to a Foreign power « could scarcely be expected without an equivalent.** The natural right asserted by the American Plenipotentiary being thus examined in respect both to the principles which it involves, and to the general practice of nations, the acquired title, as distinct from the natural, stands next for consideration. This title is described in the American argument, as oHginating in circumstances which either preceded or attended the acquisition of the Canadas by Great Britain. It is said, <«that, if Great Britain pos- sessed the navigation of the St. Lawrence before the conclusion of peace in 176S, so did the People of the United States, as forming, at that time, a part of the British empire ; but if Great Britain only first acquired it together with the Canadas, then did the People of the United States acquire it common with her at the same period." In both the supposed cases, it is taken for granted, that whatever liberty to navigate the St. Lawrence, in the whole length of its course, the inhabitants of the United States enjoyed when those States were part of the British Empire, continued to belong to them after their separa* tion from the mother country. Now, if this were so, it would also be true, and in a far stronger degree, that the subjects of Great Britain have an equal right to enjoy, in common with American citizens, the nseof tlie navigable rivers and other public possessions of the United States, whicli existed when both countries were united under the atone Government. For the acquired title, be it remembered, docs not aSbct the St. Lawrence, as a river flowing from the territories of one Power, thmugli those of another, to the sea, but is manifestly grounded on the supposition that an object wliich had been possessed in common by the People of both countries, um to the time of their separation, con- tinues to belong, in point uf use, to both, a*ter they have ceased to be parts of the same community. If it be true, that tlie inhabitants of the iJmted States contributed, as British subjects, to etfect the conquest o ofC»nw\«V»*"; before their sep to th» councils kieainst their u the waters ofj •very 8»n»e ej TOentintoaB mentasgrou; rence, as «el BrltUh Prov the British « otargumenj The fact have surviv States was By that the two Pc amity and Nopor the actual treaty, c« separate*! By th« rccognia express pulfttinj and of ^ vrasta* ltnowl< either Isi phou\< liawi any< B if it totl fort r tha VIS A to ^ of tl V "■Sfurrri' in le m- of It rt e r o [Boc. No. 48.] it of Canai1a« it cannot, at the same time, be denied, that the United States, before their separation from Great Britain, were frequently indebted to the councils and exertions of tlic parent country for protection against their unquiet and encroaching ncighbora. Specifically did they owe tu Qreat Britain their first enjoyment of the waters of the Mississippi, conquered in part from France by the 'very same efforts, which transformed Canada from a French Nettlc- ment into a British Colony. The pretension of the American Govern- ment as grounded on the simultaneous acquisition of the St Law- rence, as well by tlie inhabitants of the adjacent, and, at that time, British Provinces, as by those of the countries originally composing the British monarchy, must, therefore, if admitted, even for the sake of argument, be applied reciprocally in favor of Great Britain. The fact, however, is, that no such pretension can be allowed to have survived the treaty by which the independence of tite United States was first acknowledged by Great Britain. By that treaty a perpetual line of demarcation was drawn between the two Powers, no longer connected by any otlicr ties than those of amity and conventional agreement. No portion of the sovereignty of the Britisli empire, exclusive to the actual territory of the United States, as acknowledged by that treaty, could possibly devolve upon tlic People of the United States, separated from Great Britain. By the same instrument, the territorial bounilary of the States, as recognized by their former sovereign, were carefully defined, for the express purpose of avoiding disputes in fut«ire ; and the articles sti- pulating for a concurrent enjoyment of the North American fisheries, and of the navigation of the river Mississippi, prove that equal care was taken to determine, in the general act of pacification and ac- knowledgment, those objecfa, of which the usufruct in common was either retained or conceded by Great Britain. Is it conceivable, under these circumstances, that thetreaty of 1783, should have made no mention of the concurrent navigation of the S»t. Lawrence, if the claim, now raised by the United States, had rested on any tenable grounds ? „ „ . j,.*. i p But tlie commercial treaty of 1794, would afford additional proof, if it were wanted, that the channel of the St. Lawrence, from the sea to the 45th parallel of latitwle, was never for a moment considered as forming any exception to the territorial possessions of Great Britain. The third article of the commercial treaty shows, most clearly, that the power of excluding foreign vessels from tliose parts ol the liver which flow entirely within the Britisli dominions, was deemed to belong of right to the British Government. The leading jpurpose of that arUcle is, to establish a free commercial intercourse Ijetween the two parties throughout their respective territories in North Amc« *^' The same article contains a limitation of this privUege with re- spect to a considerable portion of the St. Lawrence, to wluch it was declared that American vessels were not to have access ; and the < I ':■ U '^ [Doc. No. 43.3 ^ corresponding restriction against Great Britain, was an exclusion of British vessels from such parts of the rivers of the United States as lie above the highest ports of entry for foreign shipping fn)m the sea. It necessarily results, from the nature of the two clauses thus view- I cd with reference to each other, that the authority of Great Britain over the part of the St. Lawrence interdicted to American vessels, was no less completely exclusive, than that of the United States over such parts of their interior waters as were, in like manner, interdicted to the sliipping of Great Britain. Tlie former limitation is, besides, of itself inconsistent with the no- tion of a right to a free, uninterrupted passage fur American vessels, by the St. Lawrence, to the ocean. Nor is it less conclusive as to the merits of the case, when coupled with the declaration, contained in the very same article, that the navi- gation of the Mississippi was to he enjoyed in common by both par- ties, notwithstanding that a subsequent article of the same treaty expresses the uncertainty which already prevailed with respect to the sources of that river being actually situated within the British frontiers. With these facts in view, it is difficult to conceive how a tacit en* joymcnt of the navigation now claimed, can be stated by the American Plenipotentiary to account for the silence maintained on this subject by his Government, from the establishment of its independence to the present negotiation. In the course of forty years, during which no mention whatever has been made of this claim, there has been no want of opportunities fit for its assertion and discussion. To say nothing of periods ante- rior to the rupture of 1812, it is strange that an interest of such vast importance should have been wholly neglected, as well on the renewal of peace, in 1815, as during the negotiation of the commercial treaty which took place in the close of that year. This long continued si- lence is the more remarkable, as the mere apprehension of an eventual change in the regulations, under wtiich a p^irt of the St. Lawrence is actually navigated by foreign vessels, has been alleged by the Ameri- can Government as their reason for now raising the discussion. The regions contir^uous to the upper waters of the St. Lawrence arc doubtless more extensively settled than they were before the late war, and the inltabitants of those regions might at times find it ad- vantageous to export their lumber and flour by the channel of that river. But mere convenience, and the profits of trade, cannot be deemed to constitute that case of extreme necessity under the law of nations, to which the rights of property may perhaps bo occasionally required to give way. It has already been shown, tliat such interests 0) can, at most, amount to an imperfect right of innocent'utility, the exer- cise of which is entirely dependent on the will and discretion of the local sovereign. Of this description arc the rights and accompanying duties of nations to trade|With each other, and to permit the access of foreigners to their respective waters in time of peace ; but will any One, at the same time, call in question the co-existing right of every State,noton1lyJ «ith others, but tlditaltogcj^ If ever ther< ^ien the indis ISen with ever: tage of fnendl uSited States. It cannot « vViich make tl cealihg. that, tection, those volved in the for Americat end of Cana< Interests ( petition witl Vide, they h weight. 1 of GreaJ B will suffice It has b( States, is i exclusive It hash theiawo theopinu ty and e territorj Thefl that th througl trine sJ The| in this bccn«| feren^ ehlig ty al airel thej ♦ J Ai [Boc. No. 48.] 5d il y 0) State, not only to regulate and to limit its commercial intercourse with others, but even, as occasion may require, to suspend or to with- hold it altogether ? If ever there was a case, which particularly imposed on a sove- reign the indispensable duty of maintaining this right unimpaired* even with every disposition to consult the convenience and fair advan- tage of friendly nations, it is the present unqualified demand of the United States. It cannot be necessary to enumerate the various circumstances which make this claim peculiarly objectionable ; but there is no con- cealing, that, besides the ordinary considerations of territorial pro- tection, those of commercial interest and colonial policy are alike in- volved in the demand of a free, gratuitous, unlimited right of passage for American citizens, with their vessels and merchandise, fronv one end of Canada to the other. Interests of such high national importance are not to be put in com- petition with the claims of justice ; but witen justice is clearly on their side, tiiey have a right to be heard, and cannot be denied their fuil weiglit. That the right is, in this instance, undoubtedly on the side of Great Britain, a moment's reflection on the preceding argument will suflice to establish. It has been shewn that the independent right asserted by the United States, is inconsistent with the dominion, paramount sovereignty, and exclusive possession, of Great Britain. It has been proved, by reference to the most esteemed authorities on the law of nations, with respect as well to the general principle as to the opinions distinctly given on this point, that the right of sovereign- ty and exclusive possession extends over rivers, in common with the territory through which tlie> flow. The same principles and the same opinions have been cited to prove that those parts of the river St Lawrence which flow exclusively through the British dominions, form no exception to the general doc- trine so applied to rivers. The existence of any necessity calculated to give the United States, in this case, a special right, in contradiction to the general rule, has been distinctly denied, and the denial conclusively supported by a re- ference to known facts. With no disposition to contest such imperfect claims and moral obligations, as are consistent with the paramount rights of sovereign- ty and exclusive possession, it has been proved, from the authorities already quoted, that of those imperfect claims and moral obligations, the territorial sovereign is the judge. The title of the United States, as derived fi-om previous enjoyment at the time when they formed part of the British empire, lias been shewn to have ceased with the conclusion of that treaty by whicli Great Britain recognized them in the new character of an indepen- dent nation. It has also been shown, that, while the American Government ac- knowledge that their claim is now brought forward for the first time, H pOoc. No. 48.] not only have they had, since their independence, no enjoyment, undw treaty, of the navigation now claimed, but that the provisions of the commercial treaty, concluded in 1794, and describiMl as having been till lately in force, are in direct contradiction with their present demand. It has finally been made to appear, that the treaties concluded by European Powers, as to the navigation of rivers, far from invalidat- ing the rights of sovereignty in that particular, tend, on the contrary, to establish those rights; and that tiie general principle of protection, «ssential to sovereignty, dominion, and property, applies with pecu- liar force to the present case of the river St Lawrence. ■f -,<» ■ it,,; y-^' '• ,'(i-_ ', 1'.. . -■ ■'. ^ » tils'