« הקודםהמשך »
consequently subject to any regulations which its government may think fit to establish.
“ On the other side it was contended, by the powers interested in the navigation of the river, that the stipulations in the treaty of Paris, in 1814, by which the sovereignty of the House of Orange over Holland was revived, with an accession of territory, and the navigation of the Rhine was, at the same time, declared to be free, “ from the point where it becomes navigable to the sea,” were inseparably connected in the intentions of the allied powers who were parties to the treaty. The intentions thus disclosed were afterwards carried into effect by the Congress of Vienna, which determined the union of Belgium to Holland, and confirmed the freedom of navigation of the Rhine, as a condition annexed to this augmentation of territory which had been accepted by the government of the Netherlands. The right to the free navigation of the river, it was said, draws after it, by necessary implication, the innocent use of the different waters which unite it with the sea; and the expression “to the sea” was in this respect equivalent to the term “ into the sea,” since the pretension of the Netherlands to levy unlimited duties upon its principal passages into the sea would render wholly useless to other states the privilege of navigating the river within the Dutch territory.
“ After a long and tedious negotiation, this question was finally settled by the convention concluded at Mayence, the 31st March, 1831, between all the riparian states of the Rhine, by which the navigation of the river was declared free from the point where it becomes navigable into the sea (bis in die See), including its two principal outlets, or mouths, in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel through the first-named watercourse, and by Dortrecht and Helvoetsluys. By the terms of this treaty, the government of the Netherlands stipulates, in case the passages by the main sea by Briel or Helvoetsluys should at any time become innavigable, through natural or artificial causes, to indicate other watercourses for the navigation and commerce of the riparian
Annual Register for 1826. Vol. LXVIII. p. 259-263.
open to the
states, equal in convenience to those which
be navigation and commerce of its own subjects. The convention also provides minute regulations of police, and fixed toll-duties on vessels and merchandise passing through the Netherlands territory to or from the sea, and also by the different ports of the upper riparian states on the Rhine. *
“ By the treaty of peace concluded at Paris, in 1763, between France, Spain, and Great Britain, the province of Canada was ceded to Great Britain by France, and that of Florida to the same power by Spain, and the boundary between the French and British possessions in North America was ascertained by a line drawn through the middle of the river Mississippi from its source to the Iberville, and from thence through the latter river, and the lakes Maurepas and Pontchartraine to the sea.
The right of navigating the Mississippi was at the same time secured to the subjects of Great Britain, from its source to the sea, and the passages in and out of its mouth, without being stopped or visited, or the payment of any duty whatsoever. The province of Louisiana was soon afterwards ceded by France to Spain; and by the treaty of Paris, 1783, Florida was retroceded to Spain by Great Britain. The independence of the United States was acknowledged, and the right of navigating the Mississippi was secured to the citizens of the United States and the subjects of Great Britain, by the separate treaty between these powers. But Spain having become thus possessed of both banks of the Mississippi at its mouth, and a considerable distance above its mouth, claimed its exclusive navigation below the point where the southern boundary of the United States struck the river. This claim was resisted, and the right to participate in the navigation of the river from its source to the sea was insisted on by the United States, under the treaties of 1763 and 1783, as well as the law of nature and nations. The dispute was terminated by the treaty of San Lorenzo el Real, in 1795 ; by the 4th article of which his Catholic Majesty agreed, that the navigation of the Mississippi, in its whole breadth, from its source to the ocean, should be free to the citizens of the United States : and by the
Martens, - Nouveau Recueil.” Tom. IX. p. 252.
22d article, they were permitted to deposit their goods at the port of New Orleans, and to export them from thence without paying any other duty than the hire of the warehouses. The subsequent acquisition of Louisiana and Florida by the United States, having included within their territory the whole river, from its source to the Gulf of Mexico, and the stipulation in the treaty of 1783, securing to British subjects a right to participate in its navigation, not having been renewed by the treaty of Ghent, in 1814, the right of navigating the Mississippi is now vested exclusively in the United States.
“ The relative position of the United States and Great Britain, in respect to the navigation of the great Northern Lakes and the river St. Lawrence, appears to be similar to that of the United States and Spain previously to the cession of Louisiana and Florida, in respect to the Mississippi ; the United States being in possession of the southern shores of the lakes, and the river St. Lawrence, to the point where their northern boundary line strikes the river, and Great Britain of the northern shores of the lakes and the river in its whole extent to the sea, as well as of the southern banks of the river, from the latitude 45° north to its mouth.
“ The claim of the people of the United States, of a right to navigate the St. Lawrence to and from the sea, has recently become the subject of discussion between the American and British governments.
« On the part of the United States government, this right is rested on the same grounds of natural right and obvious necessity which had formerly been urged in respect to the river Mississippi. The dispute between different European powers respecting the navigation of the Scheldt in 1784, was also referred to in the correspondence on this subject, and the case of that river was distinguished from that of the St. Lawrence by its peculiar circumstances. Among others, it is known to have been alleged by the Dutch, that the whole course of the two branches of this river which passed within the dominions of Holland was entirely artificial ; that it owed its existence to the skill and labour of Dutchmen ; that its banks had been erected and maintained by them at a great expense. Hence, probably, the motive for that stipulation in the treaty of Westphalia, that the Lower Scheldt, with the canals of Sas and Swin, and other mouths of the sea adjoining them, should be kept closed on the side belonging to Holland. But the case of the St. Lawrence was totally different, and the principles on which its free navigation was maintained by the United States, had recently received an unequivocal confirmation in the solemn acts of the principal states of Europe. In the treaties concluded at the Congress of Vienna, it had been stipulated that the navigation of the Rhine, the Neckar, the Meyn, the Moselle, the Maese, and the Scheldt, should be free to all 'nations. These stipulations, to which Great Britain was a party, might be considered as an indication of the present judgment of Europe upon the general question. The importance of the present claim might be estimated by the fact, that the inhabitants of at least eight states of the American union, besides the territory of Michigan, had an immediate interest in it; besides the prospective interests of other parts connected with this river and the inland seas through which it communicates with the ocean.
The right of this great and growing population to the use of this its only natural outlet to the ocean, was supported by the same principles and authorities which had been urged by Mr. Jefferson, in the negotiation with Spain, respecting the navigation of the river Mississippi. The present claim was also fortified by the consideration that this navigation was, before the war of the American Revolution, the common property of all the British subjects inhabiting this continent, having been acquired from France by the united exertions of the mother country and the colonies in the war of 1756. The claim of the United States to the free navigation of the St. Lawrence, was of the same nature with that of Great Britain to the navigation of the Mississippi, as recognised by the seventh article of the treaty of Paris, 1763, when the mouth and lower shores of that river were held by another power. The claim, whilst necessary to the United States, was not injurious to Great Britain, nor could it violate any of her just rights.*
* American Paper on the Navigation of the St. Lawrence. Congress Documents, Sessions 1827, 1828; No. 43, p. 34.
“ On the part of the British government, the claim was considered as involving the question, Whether a perfect right to the free navigation of the river St. Lawrence could be maintained, according to the principles and practice of the law of nations ?
“ The liberty of passage to be enjoyed by one nation through the dominions of another, was treated by the most eminent writers on public law as a qualified occasional exception to the paramount rights of property. They made no distinction between the right of passage by a river, flowing from the possessions of one nation through those of another, to the ocean, and the same right to be enjoyed by means of any highway, whether of land or water, generally accessible to the inhabitants of the earth. The right of passage, then, must hold good for other purposes, 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, and be attached to artificial as well as to natural highways. The principle could not, therefore, be insisted on by the American government, unless it was prepared to apply the same principle by reciprocity, in favour of British subjects to the navigation of the Mississippi and the Hudson, access to which from Canada might be obtained by a few miles of landcarriage, or by the artifical communications created by the canals of New York and Ohio. Hence, the necessity which has been felt by the writers on public law, of controlling the operation of a principle so extensive and dangerous, by restricting the right of transit to purposes of innocent utility, to be exclusively determined by the local sovereign. Hence, the right in question is termed by them an imperfect right. But there was nothing in these writers, or in the stipulations of the treaties of Vienna, respecting the navigation of the great rivers of Germany, to countenance the American doctrine of an absolute, natural right. These stipulations were the result of mutual consent, founded on considerations of mutual interest, growing out of the relative situation of the different states concerned in this navigation. The same observation would apply to the various conventional regulations which had been at different periods applied to the navigation of the river Mississippi. As to any supposed right derived from the simultaneous acquisition of the St. Lawrence