“This principle was completely established in the controversy which produced the war of 1755. Great Britain contended that she had a right, founded on the discovery and possession of such territory, to define its boundaries by given latitudes in grants to individuals, retaining the sovereignty to herself from sea to sea. This pretension on her part was opposed by France and Spain, and it was finally abandoned by Great Britain in the treaty of 1763, which established the Mississippi as the western boundary of her possessions. It was opposed by France and Spain on the principle here insisted on, which of course gives it the highest possible sanction in the present case.”
To a similar purport Vattel, b. i., § 266, writes: “When a nation takes possession of a country, with a view to settle there, it takes possession of every thing included in it, as lands, lakes, rivers, &c.” It is universally admitted, that when a nation takes possession of a country, she is considered to appropriate to herself all its natural appendages, such as lakes, rivers, &c., and it is perfectly intelligible, why the practice of European nations has sanctioned the exclusive title of the first settlers on any extent of sea-coast to the interior country within the limits of the coast which they have occupied, because their settlements bar the approach to the interior country, and other nations can have no right of way across the settlements of independent nations. In reference, however, to the extent of coast, which a nation may be presumed to have taken possession of by making a settlement in a vacant country, the well-known rule of terræ dominium finitur, ubi finitur armorum vis, might on the first thought suggest itself; but it has not been hitherto held that there is any analogy between jurisdiction over territory, and jurisdiction over adjoining seas: on the contrary, it was ruled in the Circuit Court of New York, 1825, in the case of Jackson v. Porter, 1 Paine, 457, “that under the second article of the treaty with Great Britain, the precincts and jurisdiction of a fort are not to be considered three miles in every direction, by analogy to the jurisdiction of a country over that portion of the sea surrounding its coasts, but they must be made out by proof.” The comity of nations, however, has recognised in the case of settlements made in a vacant territory for the purpose of colonisation, a title in the settlers to such an extent of territory as it may fairly be presumed that they intend to cultivate (Vattel, b. i., § 81,) and the possession of which is essential either to the convenience or security of the settlement, without being inconvenient to other nations. The limitation of this extent seems rather to have been regulated by special conventions, than by any rule of uniform practice.
On the authority of this principle as above stated, Messrs. Pinckney and Monroe contended that “by the discovery and possession of the Mississippi in its whole length, and the coast adjoining it, the United States are entitled to the whole country dependent on that river, the waters which empty into it, and their several branches, within the limits on that coast. The extent to which this would go it is not in our power to say; but the principle being clear, dependent on plain and simple facts, it would be easy to ascertain it.”
It will have been observed, that the opposition of France and Spain to the pretensions of Great Britain is adduced by Messrs. Pinckney and Monroe, as giving the highest sanction to this principle. A passage in Mr. Calhoun’s letter of Sept. 3, 1844, to Mr. Pakenham forms a striking contrast. Having alluded to the claims of France and Great Britain, first conflicting on the banks of the Ohio, he writes: “If the relative strength of these different claims may be tested by the result of that remarkable contest, that of continuity westward must be pronounced to be the stronger of the two. England has had at least the advantage of the result, and would seem to be foreclosed against contesting the principle—particularly as against us, who contributed so much to that result, and on whom that contest, and her example and her pretensions from the first settlement of our country, have contributed to impress it so deeply and indelibly.” In other respects Mr. Calhoun adopts the same view of the early European settlements in North America, that the respective nations “claimed for their settlements usually, specific limits along the coasts or bays on which they were formed, and generally a region of corresponding width extending across the entire continent to the Pacific Ocean.”
That the hypothesis of Mr. Calhoun’s argument was meant to be affirmed, may be inferred from Mr. Gallatin having categorically asserted the same fact in 1826, as being notorious. It does not however appear from the protracted negotiations prior to the Treaty of Paris, that any conflicting principles of international law were advanced by the two parties, or any question of disputed title set at rest by the treaty. On the contrary, it was intimated in the course of the negotiations, by Great Britain, that she considered France to have the natives on the left bank of the Mississippi under her protection, when she proposed that the King of France should “consent to leave them under the protection of Great Britain.”
The second rule is, “that whenever a European nation makes a discovery, and takes possession of any portion of that continent, and another afterwards does the same at some distance from it, where the boundary between them is not determined by the principle above mentioned, the middle distance becomes such of course. The justice and propriety of this rule are too obvious to require illustration.”
The principle here stated seems very analogous to that which is recognised by all writers on international law, as regulating the navigation of rivers. Thus Vattel (i., § 266)—“When a nation takes possession of a country bounded by a river, she is considered as appropriating to herself the river also; for the utility of a river is too great to admit a supposition that the nation did not intend to reserve it for herself. Consequently, the nation that first established her dominion on one of the banks of the river, is considered as being the first possessor of all that part of the river which bounds her territory. Where there is a question of a very broad river, this presumption admits not of a doubt, so far, at least, as relates to a part of the river’s breadth, and the strength of the presumption increases or diminishes in the inverse ratio with the breadth of the river; for the narrower the river is, the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation.” To make the reasoning more complete, it might have been added, “the broader the river is, the stronger claim has each party to a portion of it, as requisite for its own convenience, and not likely to be attended with inconvenience to the other party.”
Mr. Wheaton states the rule of division more explicitly (part ii., ch. iv.)—“Where a navigable river forms the boundary of conterminous states, the middle of the channel, or ‘thalweg,’ is generally taken as the line of separation between the two states, the presumption of law being, that the right of navigation is common to both: but this presumption may be destroyed by actual proofs of prior occupancy, and long undisturbed possession giving one of the riparian proprietors the exclusive title to the entire river.”
In an analogous manner, where a large tract of unoccupied land forms the boundary of conterminous settlements, the middle distance is suggested by natural equity as the line of demarcation, where such line is not inconvenient to either party, and when one party cannot establish a stronger presumption than the other of a perfect right in its own favour.
Thus, Messrs. Pinckney and Monroe contended, that “by the application of this principle to the discovery made by M. de la Salle of the bay of St. Bernard, and his establishment there on the western side of the River Colorado, the United States have a just right to a boundary founded on the middle distance between that point and the then nearest Spanish settlement; which, it is understood, was in the province of Panuco, unless that claim should be precluded on the principle above mentioned. To what point that would carry us, it is equally out of our power to say; nor is it material, as the possession in the bay of St. Bernard, taken in connection with that on the Mississippi, has been always understood, as of right we presume it ought, to extend to the Rio Bravo, on which we now insist.”