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,[28] (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, where 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 idea both of the extent and the limitations of this right. Ins. 1. 2. t. 1. § 4. [29]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, [30]littorum 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. [31]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; 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.