each the exclusive navigation of so much of the river as was adJacent to our several shores-in which way it would have been useless to all-but it was placed on that footing on which alone it could be worth anything, to wit: as a right to all to navigate the whole length of the river in common. The import of the terms and the reason of the thing prove it was a right of common in the whole, and not a several right to each of a particular part. To which may be added the evidence of the stipulation itself, that we should navigate between New Orleans and the western bank, which, being adjacent to none of our States, could be held by us only as a right of common. Such was the nature of our right to navigate the Mississippi, as far as established by the treaty of Paris.

2. In the course of the Revolutionary war, in which the thirteen colonies, Spain, and France, were opposed to Great Britain, Spain took possession of several posts held by the British in Florida. It is unnecessary to inquire whether the possession of half a dozen posts scattered through a country of seven or eight hundred miles extent, could be considered as the possession and conquest of that country. If it was, it gave still but an inchoate right, as was before explained, which could not be perfected but by the relinquishment of the former possession at the close of the war; but certainly it could not be considered as a conquest of the river, even against Great Britain, since the possession of the shores, to wit, of the island of New Orleans on the one side, and Louisiana on the other, having undergone no change, the right in the water would remain the same, if considered only in its relation to them; and if considered as a distinct right, independent of the shores, then no naval victories obtained by Spain over Great Britain, in the course of the war, gave her the color of conquest over any water which the British fleet could enter. Still less can she be considered as having conquered the river, as against the United States, with whom she was not at war. We had a common right of navigation in the part of the river between Florida, the island of New Orleans, and the western bank, and nothing which passed be

tween Spain and Great Britain, either during the war, or at its conclusion, could lessen that right. Accordingly, at the treaty of November, 1782, Great Britain confirmed the rights of the United States to the navigation of the river, from its source to its mouth, and in January, 1783, completed the right of Spain to the territory of Florida, by an absolute relinquishment of all her rights in it. This relinquishment could not include the navigation held by the United States in their own right, because this right existed in themselves only, and was not in Great Britain. If it added anything to the rights of Spain respecting the river between the eastern and western banks, it could only be that portion of right which Great Britain had retained to herself in the treaty with the United States, held seven weeks before, to wit, a right of using it in common with the United States.

So that as by the treaty of 1763, the United States had obtained a common right of navigating the whole river from its source to its mouth, so by the treaty of 1782, that common right was confirmed to them by the only power who could pretend claims against them, founded on the state of war; nor has that common right been transferred to Spain by either conquest or cession. But our right is built on ground still broader and more unquestionable, to wit:

3. On the law of nature and nations.

If we appeal to this, as we feel it written on the heart of man, what sentiment is written in deeper characters than that the ocean is free to all men, and their rivers to all their inhabitants? Is there a man, savage or civilized, unbiased by habit, who does. not feel and attest this truth? Accordingly, in all tracts of country united under the same political society, we find this natural right universally acknowledged and protected by laying the navigable rivers open to all their inhabitants. When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind. The late case of Antwerp and the Scheldt was a striking proof a general union of sentiment on this

point; as it is believed that Amsterdam had scarcely an advocate out of Holland, and even there its pretensions were advocated on the ground of treaties, and not of natural right. (The commissioners would do well to examine thoroughly what was written on this occasion.) The commissioners will be able perhaps to find, either in the practice or the pretensions of Spain, as to the Dauro, Tagus, and Guadiana, some acknowledgments of this principle on the part of that nation. This sentiment of right in favor of the upper inhabitants must become stronger in the proportion which their extent of country bears to the lower. The United States hold 600,000 square miles of habitable territory on the Mississippi and its branches, and this river and its branches afford many thousands of miles of navigable waters penetrating this territory in all its parts. The inhabitable grounds of Spain below our boundary and bordering on the river, which alone can pretend any fear of being incommoded by our use of the river, are not the thousandth part of that extent. This vast portion of the territory of the United States has no other outlet for its productions, and these productions are of the bulkiest kind. And in truth, their passage down the river may not only be innocent, as to the Spanish subjects on the river, but cannot fail to enrich them far beyond their present condition. The real interests then of all the inhabitants, upper and lower, concur in fact with their rights.

If we appeal to the law of nature and nations, as expressed by writers on the subject, it is agreed by them, that, were the river, where it passes between Florida and Louisiana, the exclusive right of Spain, still an innocent passage along it is a natural right in those inhabiting its borders above. It would indeed be what those writers call an imperfect right, because the modification of its exercise depends in a considerable degree on the conveniency of the nation through which they are to pass. But it is still a right as real as any other right, however well-defined; and were it to be refused, or to be so shackled by regulations, not necessary for the peace or safety of its inhabitants, as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand redress. The right of the upper

inhabitants to use this navigation is the counterpart to that of those possessing the shore below, and founded in the same natural relations with the soil and water. And the line at which their rights meet is to be advanced or withdrawn, so as to equalize the inconveniences resulting to each party from the exercise of the right by the other. This estimate is to be fairly made with a mutual disposition to make equal sacrifices, and the numbers on each side are to have their due weight in the estimate. Spain holds so very small a tract of habitable land on either side below our boundary, that it may in fact be considered as a strait of the sea; for though it is eighty leagues from our boundary to the mouth of the river, yet it is only here and there in spots and slips that the land rises above the level of the water in times of inundation. There are, then, and ever must be, so few inhabitants on her part of the river, that the freest use of its navigation may be admitted to us without their annoyance. For authorities on this subject, see Grot. 1. 2. c. 2 §11, 12, 13, c. 3. § 7, 8, 12. Puffendorf, 1. 3. c. 3. § 3, 4, 5, 6. Wolff's Inst. § 310, 311, 312. Vattel, I. 1. § 292. 1. 2. § 123 to 139.

It is essential to the interests of both parties that the navigation of the river be free to both, on the footing on which it was defined by the treaty of Paris, viz. through its whole breadth. The channel of the Mississippi is remarkably winding, crossing and recrossing perpetually from one side to the other of the general bed of the river. Within the elbows thus made by the channel, there is generally an eddy setting upwards, and it is by taking advantage of these eddies, and constantly crossing from one to another of them, that boats are enabled to ascend the river. Without this right the whole river would. be impracticable both to the Americans and Spaniards.

It is a principle that the right to a thing gives a right to the means, without which it could not be used, that is to say, that the means follow their end. Thus, a right to navigate a river, draws to it a right to moor vessels to its shores, to land on them

in cases of distress, or for other necessary purposes, &c. This principle is founded in natural reason, is evidenced by the common sense of mankind, and declared by the writers before quoted. See Grot. 1. 2. c. 2. § 15. Puffend. 1. 3. c. 3. § 8. Vattel, 1. 2.

$129.

The Roman law, which, like other municipal laws, placed the navigation of their rivers on the footing of nature, as to their own citizens, by declaring them public,* (flumina publica sunt, hoc est populi Romani, Inst. 2. t. 1. § 2,) declared also that the right to the use of the shores was incident to that of the water. Ibid,

1, 3, 4, 5. The laws of every country probably do the same. This must have been so understood between France and Great Britain, at the treaty of Paris, when a right was ceded to British subjects to navigate the whole river, and expressly that part between the island of New Orleans and the western bank, without stipulating a word about the use of the shores, though both of them belonged then to France, and were to belong immediately to Spain. Had not the use of the shores been considered as incident to that of the water, it would have been expressly stipulated; since its necessity was too obvious to have escaped either party. Accordingly, all British subjects used the shores habitually for the purposes necessary to the navigation of the river; and when a Spanish Governor undertook at one time to forbid this, and even cut loose the vessels fastening to their shores, a British frigate went immediately, moored itself to the shore opposite to the town of New Orleans, and set out guards with orders to fire on such as might attempt to disturb her moorings. The Governor acquiesced, the right was constantly exercised afterwards, and no interruption ever offered.

This incidental right extends even beyond the shores, when circumstances render it necessary to the exercise of the principal right; as, in the case of a vessel damaged, where the mere shore could not be a safe deposit for her cargo till she could be repaired, she may remove it into safe ground off the river. The Roman law shall be quoted here too, because it gives a good

* Rivers belong to the public, that is to say to the Roman people.