idea both of the extent and the limitations of this right. Ins. 1. 2. t. 1. § 4. Riparum quoque usus publicus est, ut volunt jura gentium, sicut et ipsius fluminis usus publicus est. Itaque et navigium ad ripes appellere, et funes de arboribus ibi natis religare, et navis onera in his locis reponere, liberum quique est sicuti nec per flumen ipsum navigare quisquam prohibetur. And again, § 5, flittorum quoque usus publicus, sive juri gentium est, ut et ipsius maris et ob id data est facultas volentibus, casas ibi sibi componere, in quas se recipere possint, &c. Again, § 1. Nemo igitur ad littora maris accedere prohibitur; veluti deambulare aut navem appellere, sic tamen ut a villis, id est domiciliis monumentisque ibi positis, et ab edificiis abstineat, nec iis damnum inferat. Among incidental rights are those of having pilots, buoys, beacons, landmarks, light-houses, &c., to guide the navigators. The establishment of these at joint expense, and under joint regulations, may be the subject of a future convention. In the meantime, both should be free to have their own, and refuse those of the other, both as to use and expense. Very peculiar circumstances attending the river Mississippi, require that the incidental right of accommodation on the shore, which needs only occasional exercise on other rivers, should be habitual and constant on this. Sea vessels cannot navigate that river, nor the river vessels go to sea. The navigation would be useless then without an entrepôt where these vessels might safely deposit their own cargoes, and take those left by the others; "The use of the banks belong also to the public by the laws of nations, as the use of the river itself does. Therefore, every one is free to moor his vessel to the bank, to fasten his cables to the trees growing on it, to deposit the cargo of his vessel in those places in like manner as every one is free to navigate the river itself." "The use of the shores also belongs to the public, or is under the law of nations, as is that of the sea itself. Therefore it is, that those who choose, have a right to build huts there, into which they may betake themselves." "Nobody, therefore, is prohibited from landing on the sea shore, walking there, or mooring their vessel there, so nevertheless that they keep out of the villas, that is, the habitations, monuments, and public buildings, erected there, and do them no injury." and where warehouses and keepers might be constantly established for the safeguard of the cargoes. It is admitted, indeed, that the incidental right thus extended into the territory of the bordering inhabitants, is liable to stricter modifications in proportion as it interferes with their territorial right. But the inconveniences. of both parties are still to have their weight, and reason and moderation on both sides are to draw the line between them. As to this, we count much on the liberality of Spain, on her concurrence in opinion with us, that it is for the interest of both parties to remove completely this germ of discord from between us, and draw our friendship as close as circumstances proclaim that it should be, and on the considerations which make it palpable that a convenient spot placed under our exclusive occupation, and exempted from the jurisdiction and police of their government, is far more likely to preserve peace than a mere free port, where eternal altercations would keep us in eternal ill humor with each other. The policy of this measure, and indeed of a much larger concession, having been formerly sketched in a paper of July 12th, 1790, sent to the commissioners severally, they are now referred to that. If this be agreed to, the manner of fixing on that extra territorial spot becomes highly interesting. The most desirable to us, would be a permission to send commissioners to choose such spot, below the town of New Orleans, as they should find most convenient. If this be refused, it would be better now to fix on the spot. Our information is, that the whole country below the town, and for sixty miles above it, on the western shore, is low, marshy, and subject to such deep inundation for many miles from the river, that if capable of being reclaimed at all by banking, it would still never afford an entrepôt sufficiently safe; that on the eastern side the only lands below the town, not subject to inundation, are at the Detour aux Anglais, or English Turn, the highest part of which, is that whereon the fort St. Marie formerly stood. Even this is said to have been raised by art, and to be very little above the level of the inundations. This spot then is what we would fix on, if obliged now to decide, with from one to as many square miles of the circumjacent lands as can be obtained, and comprehending expressly the shores above and below the site of the fort as far as possible. But as to the spot itself, the limits, and even whether it shall be extra territorial, or only a free port, and what regulations it shall be laid under, the convenience of that Government is entitled to so much respect and attention on our part, that the arrangement must be left to the management of the commissioners, who will doubtless use their best efforts to obtain all they can for us. The worst footing on which the determination of the ground could be placed, would be a reference to joint commissioners; because their disagreement, a very probable, nay, a certain event, would undo the whole convention, and leave us exactly where we now are. Unless indeed they will engage to us, in case of such disagreement, the highest ground at the Detour aux Anglais, of convenient extent, including the landings and harbor thereto adjacent. This would ensure us that ground, unless better could be found and mutually preferred, and close the delay of right under which we have so long labored for peace-sake. It will probably be urged, because it was urged on a former occasion, that, if Spain grants to us the right of navigating the Mississippi, other nations will become entitled to it by virtue of treaties giving them the rights of the most favored nation. Two answers may be given to this: 1. When those treaties were made, no nations could be under contemplation but those then existing, or those at most who might exist under similar circumstances. America did not then. exist as a nation; and the circumstances of her position and commerce, are so totally dissimilar to everything then known, that the treaties of that day were not adapted to any such being. They would better fit even China than America; because, as a manufacturing nation, China resembles Europe more. When we solicted France to admit our whale oils into her ports, though she had excluded all foreign whale oils, her minister made the objection now under consideration, and the foregoing answer was given. It was found to be solid; and the whale oils of the United States are in consequence admitted, though those of Portugal and the Hanse towns, and of all other nations, are excluded. Again, when France and England were negotiating their late treaty of commerce, the great dissimilitude of our commerce (which furnishes raw materials to employ the industry of others, in exchange for articles whereon industry has been exhausted) from the commerce of the European nations (which furnishes things ready wrought only) was suggested to the attention of both negotiators, and that they should keep their nations free to make particular arrangements with ours, by communicating to each other only the rights of the most favored European nation. Each was separately sensible of the importance of the distinction; and as soon as it was proposed by the one, it was acceded to by the other, and the word European was inserted in their treaty. It may fairly be considered then as the rational and received interpretation of the diplomatic term, "gentis amicissimæ,"* that it has not in view a nation unknown in many cases at the time of using the term, and so dissimilar in all cases as to furnish no ground of just reclamation to any nation. But the decisive answer is, that Spain does not grant us the navigation of the river. We have an inherent right to it; and she may repel the demand of any other nation by candidly stating her act to have been, what in truth it is, a recognition only, and not a grant. If Spain apprehends that other nations may claim access to our ports in the Mississippi, under their treaties with us, giving them a right to come and trade in all our ports, though we would not choose to insert an express stipulation against them, yet we shall think ourselves justified to acquiesce in fact, under any regulations Spain may from time to time establish against their admission. Should Spain renew another objection, which she relied much on before, that the English at the Revolution treaty could not cede to us what Spain had taken from them by conquest, and "The most favored nation." what of course they did not possess themselves, the preceding observations furnish sufficient matter for refutation. To conclude the subjects of boundary and navigation, each of the following conditions is to be considered by the commissioners as a sine quâ non. 1. That our southern boundary remain established at the completion of thirty-one degrees of latitude on the Mississippi, and so on to the ocean, as has been before described, and our western one along the middle of the channel of the Mississippi, however that channel may vary, as it is constantly varying, and that Spain cease to occupy or to exercise jurisdiction in any part northward or eastward of these boundaries. 2. That our right be acknowledged of navigating the Mississippi, in its whole breadth and length, from its source to the sea, as established by the treaty of 1763. 3. That neither the vessels, cargoes, or the persons on board, be stopped, visited, or subjected to the payment of any duty whatsoever; or, if a visit must be permitted, that it be under such restrictions as to produce the least possible inconvenience. But it should be altogether avoided, if possible, as the parent of perpetual broils. 4. That such conveniences be allowed us ashore, as may render our right of navigation practicable and under such regulations as may bona fide respect the preservation of peace and order alone, and may not have in object to embarrass our navigation, or raise a revenue on it. While the substance of this article is made a sine quâ non, the modifications of it are left altogether to the discretion and management of the commissioners. We might add, as a fifth sine quâ non, that no phrase should be admitted in the treaty which could express or imply that we take the navigation of the Mississippi as a grant from Spain. But, however disagreeable it would be to subscribe to such a sentiment, yet, were the conclusion of a treaty to hang on that single objection, it would be expedient to waive it, and to meet, at a future day, the consequences of any resumption they may |
