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ought to be lodged in the sovereign of the Island, to which the Bank attaches, on account of proximity and the obvious intentions of nature. But on the supposition of the fisheries being inexhaustible, which Paley makes, and which undoubtedly the facts warranted him in making, this jurisdiction can never be exercised so as to deprive others of their rights. Furthermore, if the country, which would naturally exercise jurisdiction over such portions of the ocean, sees that measures can be taken to render the navigation more easy and safe by erecting lighthouses and by other means, it is their duty to have it done. And it would be right in them to exact from the ships of other nations, who resort to the fisheries, a reasonable share of the expense.
There are important rights and benefits, associated with the use of great navigable rivers, which are occupied, in different places in their progress, by different and distinct sovreignties, such as the Scheldt, Rhine, Danube, and St. Lawrence. A similar remark applies to bays, sounds, and lakes, particularly the great lakes of North America. In all these cases we are to consult the principles of Natural law ; we are to consider carefully the intentions of nature ; we are to interrogate those marks of design, which the great Author of nature has in various ways disclosed. The author of the MARE CLAUSUM, the great British authority in support of British pretensions, could no doubt give us a learned Treatise on the FluviUs CLAUSUS. The learned ingenuity, which could shut the Baltic, Adriatic, and British seas, would of course find no difficulty in closing the navigation of so inconsiderable a body of water as a river. But a collection of authorities, gathered from barbarous ages and barbarous countries, however they may display the learning and ingenuity of their collector, can certainly have but little weight in these latter days, when set in opposition to the
radiant signatures of justice. If there is any principle, which bears the stamp of common reason, or the indelible impress of the great Creator's approbation, it is, that all navigable rivers, through whatever different countries and conflicting jurisdictions they may pass, are the common property, so far as the use of their waters for the purposes of navigation is concerned, of all that occupy their banks. 'Against this principle, which takes deep root in the heart of the great mass of mankind, prescription and authority will have no weight. They will have no weight, because they do not deserve to have any. It is the voice of nature and of the God of nature, that every such river, like the beams of the sun and the free air of heaven, shall be open and undisturbed to the use of all who inhabit it; not merely so far as they happen to occupy its banks, but onward through its whole length, till it mingles with the great high-way of the ocean.
We will propose an illustration, which will make this topic clear to Americans at least. The upper waters and branches of the Mississippi are inhabited by nearly four millions of Americans ; we will suppose the mouth of the river to be occupied by the Spaniards, as it was a few years since, who obstinately refuse to the upper inhabitants a deposit for their goods and an egress into the ocean. Would the Americans, cut off from the rest of the world and suffering under a multitude of privations, consider such a proceedure right ? Would they need a law-book to teach them, it is wrong? Might they not with propriety reply to the learning even of such an authority as Selden, that there is sometimes a wisdom of the heart, which has a preeminence over that of the head ? They could no more believe against the evidence within them, than they could believe, that the sun is clothed in darkness against the testimony of their own eyes, when they behold around them all nature bathed in his beams.
But it is unnecessary to speculate upon the feelings; which we may imagine to arise. It is already matter of history. The right to a free navigation of the Mississippi was guaranteed by the treaty of Spain, of 1795; and also the privilege of deposit in the island of New Orleans, it being further provided, that in case of a suspension of the privilege at New Orleans, an equivalent establishment should be assigned at some other place upon the bank of the Mississippi. But very unexpectedly the Spanish Intendant of New Orleans in October 1802 issued a proclamation, prohibiting the citizens of the United States from depositing their merchandize, and without assigning any other suitable place. There was but one opinion, one feeling. The subject immediately came before Congress; and it was very evident from the tone there assumed, that such a proceedure could never be submitted to. Public sentiment demanded an egress into the ocean, right or wrong, treaty or no treaty. Nothing but a favorable turn of circumstances, which brought the whole of Louisiana under American jurisdiction by means of negociation, saved Spain and the United States from a speedy collision and war.*
Such will always, until men are brought more fully under the principles of the Gospel, be the feelings and the results. No logic whatever can convince the nations bordering on the upper parts of great rivers, that they can be rightfully excluded from the ocean. And so far at least, they are correct. They look upon such rivers as, in some important respects, common property to their entrance into the ocean ; and will be found determined to act upon that view. There can be no doubt, that in this case the principles they maintain are conformed to
* See on this subject Lyman’s Diplomacy, Ch. VII, Vol. I, ---Report of the Am. Secretary of State in 1791, &c.
what is right, and to the suggestions and intentions of nature. And it is exceedingly desirable, that they should be sustained fully, powerfully, and unequivocally, by the Law of nations. Those nations, that in the confidence of their maritime and military strength, have committed usurpations on the natural rights of others, will be likely to set themselves in opposition to what they will probably call innovations in the established law. But they cannot sustain their pretensions for any length of time against the united sentiment of other nations, when it is aided by the luminous views and sound reasonings of those, to whom Nature has given the intellectual' ability of publishing and enforcing her decrees. And this is especially true at the present time; truth and reason possess a power over the conduct of inen, which they never had before; injustice and usurpation cannot possibly stand before it. These suggestions are obviously of importance, in connection with the great cause of Peace, because the origin of multitudes of wars is connected with the previous violation by one of the contending parties of rights, founded on the obvious intentions of nature. The more fully justice is understood, and the more generally the claims of justice are enforced by the pacific methods of discussion and reasoning, the more of peace there will be on the earth.
OF A NEUTRAL TRADE NOT OPEN IN TIME OF PEACE.
THERE is another subject of the very highest importance, where there seems to be a great difference of opinion. It is this——“whether it be a part of the law of nations, that a trade, ordinarily shut in time of peace, and opened to neutrals in time of war, on account of the war, is liable, as much as a trade in contraband of war or with a blockaded port, to capture and condemnation?” -The British government answer in the affirmative. They have pronounced, by their instructions to their armed vessels and by their judicial decrees, the trade in question to be in contravention of international law, and legally and justly liable to be condemned. This is a doctrine, however, which cannot be said to have the authority of antiquity in its favor, for no nation whatever seems to have proposed and acted upon it, until the war of 1756.* But since that period, it has been asserted and maintained on grounds concisely these. The doctrine is understood to have reference especially, and perhaps exclusively, to the colonial trade. The colonial trade is ordinarily confined to the exclusive use of the mother country, to which the colony belongs.; furnishing
* Robinson's Admiralty Rep. Vol. II, p. 186, Lond. Ed. Case of the Im