5292. MISSISSIPPI RIVER NAVIGATION, Law of nature and.—
But our right
is built on ground still broader and more unquestionable,
to wit: On the law of nature and
nations. If we appeal to this, as we feel it
written in 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 of 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 will
be able perhaps to find, either in the practice
or the pretensions of Spain as to the Douro,
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.—
Mississippi River Instructions. Washington ed. vii, 577.
Ford ed., v, 467.
(1792)
