The object of the third article2 is connected with that of the second.3 The surrender of the posts naturally drew with it an arrangement with regard to inland Trade and navigation. Such an arrangement convenient in several respects appears to be in some respects necessary. To restrain the Indians on either side of the line from trading with the one party or the other at discretion, besides the questionableness of the right, could not be attempted without rendering them disgusted and hostile. The truth of this seems to have influenced the conduct of Great Britain and France while the latter was in possession of Canada. The 15th article of the Treaty of Peace of Utrecht in the year 1713 allows free liberty to the Indians on each side to resort for Trade to the British and French Colonies.4 It is to be observed too that the Indians not only insist on a right of going to Trade with whom they please but of permitting whom they please to come to Trade with them and also to reside among them for that purpose. Thus the Southern and South Western Indians within our limits maintain a constant intercourse with Spain established on the basis of Treaty5 —nor has their right to do it been hitherto contested by the U States. Indeed on what clear principle of justice, could this natural right to Trade of a people not subject to our ordinary jurisdiction be disputed? This claim on their part gives a corresponding claim to neighbouring nations to Trade with them. Spain would think the pretension to exclude her inadmissible. And Great Britain would have thought the same, if she had found it her interest to assert the right of intercourse; views which would always be seconded by the Indians from regard to their own interest and independence. It was a point therefore, which it much concerned the preservation of good understanding between the parties and with the Indians, to regulate on some equitable plan, and the more liberal the plan, the more agreeable to a natural course of things, and to the free participation of mutual advantages, the more likely was it to promote and prolong that important benefit.

In the second place, the expediency of some arrangement was indicated by the circumstance of the boundary line between the parties running for an extent of sixteen hundred Miles through the middle of the same Rivers lakes and Waters. It may be deemed impossible from the varying course of winds and currents for the ships of one party to keep themselves constantly within their own limits without passing or trangressing those of the other. How indeed was the precise middle line of those great lakes to be always known?

It appears evident, that to render the navigation of these waters useful to and safe for both parties, it was requisite that they should be common. Without this frequent forfeitures to enforce interdictions of intercourse might be incurred, and there would be constant danger of interference and controversy. It is probable too that when those waters are better explored in their whole extent it will be found that the best navigation of the Lakes is sometimes on one side sometimes on the other, and that common convenience will in this respect also be promoted by community of right.

Again. It is almost always mutually beneficial for bordering territories to have free and friendly intercourse with each other. This relates not only to the advantages of an interchange of commodities, for the supply of mutual wants and to those of the reciprocal reaction of industry connected with that interest but also to those of avoiding jealousy collision and contest of preserving friendship and harmony. Proximity of territory invites to Trade—the bordering inhabitants in spite of every prohibition, will endeavour to carry it on—if not allowed, illicit adventures take place of the regular operations of legalised commerce—individual interest leads to collusions to evade restraining regulations—habits of infracting the laws are produced—morals are perverted. Severities necessarily great in proportion as they counteract the natural course of things lay the foundation of discontents and quarrels. Perhaps it may be safely affirmed that freedom of intercourse or violent hatred and enmity are the alternative in every case of contiguity of territory.

The maxims of the U States have hitherto favoured a free intercourse with all the world. They have conceived that they had nothing to fear from the unrestrained competition of commercial enterprise, and have only desired to be admitted to it upon equal terms. Hence not only the communication by sea has been open with the adjacent territories on our Continent as well as with more distant quarters of the globe, but two ports have been erected on Lake Champlain for the convenience of an interior commerce with Canada; and there is no restriction upon any nation to come by the Mississippi to the only port which has been established for that side of the Union.6 These arrangements have excited neither c[r]iticism nor censure.

Our Envoy therefore in agreeing to a liberal plan of intercourse with the British Territories in our neighbourhood has conformed to the general spirit of our Country and to the general policy of our laws. Great Britain in acceding to such a plan departed from her system of Colonial monopoly and exclusion—a departure which ought to be one recommendation of the plan to us; for every relaxation of that system paves the way for other and further relaxations. It might have been expected also that a spirit of jealousy might have proved an obstacle on the part of Great Britain; since especially if we consider the composition of those who inhabit and are likely to inhabit Canada, it is morally certain that there must be as the result of a free intercourse a far greater momentum of influence of the U States upon Canada than of Canada upon the U States. It would not have been surprising, if this jealousy had sought to keep us at a distance, and had counteracted the wiser policy of limiting our desires by giving us possession of what is alone to us truly desireable, the advantages of commerce—rather than of suffering our wishes to be stimulated and extended by privation and restraint.

New ideas seem of late to have made their way among us. The extremes of commercial jealousy are inculcated. Regulation, restriction exclusion are now with many the favourite topics. Instead of feeling pleasure, that new avenues of Trade are opened a thousand dangers and mischiefs are pourtrayed when the occasion occurs. Free Trade with all the world seems to have dwindled into Trade with France and her Dominions. That Country, in the eyes of a certain party, appears to be an epitome of the Universe.7

These new doctrines of commercial jealousy have been remarkably exemplified8 with respect to the article immediately under consideration. Truly estimated it is a valuable ingredient in the Treaty; and yet there is perhaps no part of it which has been more severely reprobated. It will be easy to shew that it has been extremely misrepresented—and that what have been deemed very exceptionable features do not exist at all.

We will first examine what the article really does contain and afterwards what are the comparitive advantages likely to result to the two countries.

The main stipulation is that “it shall at all times be free to his Majesty’s subjects and to the Citizens of the United States and also to the Indians dwelling on either side of the boundary line freely to pass and repass, by land and inland navigation, into the respective territories and countries of the two parties on the Continent of America (the country within the limits of the Hudson’s Bay company only excepted) and to navigate all the Lakes Rivers and Waters thereof and freely to carry on Trade and commerce with each other.”

The subject matter of this stipulation is plainly inland trade and commerce to be carried on by land passage and inland navigation between the subjects and citizens of the U States and the Indians dwelling on each side of the boundary line. This appears first from the terms of the article. The subjects and citizens of the two parties and also the Indians dwelling on each side of the boundary line are freely to pass and repass—what? The boundary line in what manner? by land and inland navigation—to what places? into the respective territories and countries of the two parties on the Continent of America (the Country of the Hudsons bay company only excepted). They are also to navigate all the Lakes Rivers and Waters thereof and freely to carry on trade and commerce with each other. This right to navigate lakes Rivers and Waters must be understood with reference to inland navigation, because this gives it a sense conformable with the antecedent clause with which it is immediately connected as part of a sentence; the right to pass and repass being expressly restricted to land and inland navigation it would not be natural to extend it by implication, on the strength of an ambiguous term, to passage by sea or by any thing more than inland navigation; because the words Lakes and Rivers have direct reference to inland navigation shewing that to be the object in view and the word “waters” from the order in which it stands will most consistently with propriety of composition be understood as something less than lakes and rivers, as ponds canals and those amphibious waters to which it is scarcely possible to give a name—and because the waters mentioned are “waters thereof” that is waters of the territories and countries of the two parties on the Continent of America—a decription which can not aptly be applied to the sea or be supposed to include navigation by sea to the U States or from them to the British territories.9

This conclusion is confirmed by the general complexion of the Treaty. It is the manifest province of the Eighteen articles which succeed the first ten to regulate external commerce and navigation. The regulations they contain are introduced thus by the 11th article “It is agreed between his Majesty and the U States of America that there shall be a reciprocal and intirely perfect liberty of Navigation and Commerce between their respective people in the manner under the limitations and on the conditions specified in the following articles” Then follow articles which provide fully and distinctly for Trade and Navigation between the U States and the British West Indies, between the Asiatic Dominions of GB and the U States, and lastly between the European dominions of G Britain and the U States. These Eighteen articles properly constitute the Treaty of commerce and navigation between the two Countries. Their general scope and some special provisions which they contain prove that the object of the third article is local and partial, that it contemplates exclusively an interior commerce by land and inland navigation (except as to the Mississippi) and particularly that it does not reach at all our Atlantic sea ports. An instance of one of the special provisions alluded to will be cited in the further examination of this article.10

In opposition to this construction, much11 stress is laid upon the provisions which immediately succeed the clauses that have been quoted. They are in these words “But it is understood that this article does not extend to the admission of Vessels of the U States into the sea ports harbours bays or Creeks of his Majestys said territories, nor into such parts of the rivers in his said Territories as are between the mouth thereof and the highest port of entry from the sea except in small vessels trading bona fide between Montreal and Quebec; nor to the admission of British Vessels from the sea into the Rivers of the U States beyond the highest ports of entry for foreign vessels from the sea.” The last it is said contains an implication that under this article British vessels have a right to come to our highest ports of entry for foreign vessels from the sea, while we are excluded from the sea ports of the British territories on this Continent.

But this is altogether an erroneous inference. The clauses last cited are inserted for greater caution, to guard expressly against any construction of the article, by implications more or less remote, contrary to the actual regulations of the parties with regard to external commerce and navigation. Great Britain does not now permit a Trade by sea to Nova Scotia and Canada.12 She therefore declares that the article shall not be deemed to contravene this regulation. The U States now permit foreign Vessels to come to certain ports of Entry from the sea but exclude them from other more interior ports of entry to which our own vessels may come.*13 It is therefore declared on their part that the article shall not be construed to contravene this regulation. This was the more proper as the right of inland navigation might have given some colour to the claim of going from an outer to an inner port of entry.15

But this negative of an implication, which might have found some colour in the principal provision, can never be construed into an affirmative grant of a very important privilege, foreign to that principal provision. The main object of the article it has been seen, is Trade by land and inland navigation. Trade and navigation by sea with our sea ports is an intirely different thing. To infer a positive grant of this privilege from a clause which says that the right of inland navigation shall not be construed to permit vessels coming from the sea to go from the ports of entry to which our laws now restrict them to more interior ports would be contrary to reason and to every rule of sound construction. Such a privilege could never be permitted to be founded upon any thing less than a positive and explicit grant of it. It could never be supported by an implication drawn from an article relative to a local and partial object—much less by an implication drawn from the negative of another implication. The pretension, that all our ports were laid open to Great Britain by a covert and side-wind provision and this without reciprocity16 would be too monstrous to be tolerated for an instant.17 It would be the more inadmissible, because the object is embraced and regulated by other parts of the Treaty on terms of reciprocity.

The different mode of expression, in the clauses last cited, when speaking of the British territories and when speaking of the UStates, has furnished an argument for the inference which has been stated. But this difference is accounted for by the difference in the actual regulations of the parties as described above. The object was on each side to oust an implication interfering with these regulations. The expressions to effect it were commensurate with the state of the fact on each side; and consequently do not warrant any collateral or special inference.

The only positive effect of these clauses is to confine the right of inland navigation from Montreal to Quebec to what are called “small vessels trading bona fide between Montreal and Quebec.”18 Those who are not familiar with laws and Treaties may feel some difficulty about the position that particular clauses are introduced only for greater caution without producing any new effect, but those who are familiar with such subjects know that there is scarcely a law or a Treaty which does not offer examples of the use of similar clauses, and it not unfrequently happens that a clear meaning of the principal provision is rendered obscure by the excess of explanatory precaution.

The next clause of this article is an exception to the general design of it confirming the construction I have given to it: “The River Mississippi shall however, according to the Treaty of Peace be entirely open to both parties; and it is further agreed that all the ports and places on its Eastern side to which soever of the parties belonging may freely be resorted to and used by both parties in as ample a manner as any of the Atlantic Ports or places of the U States or any of the ports or places of his Majesty in Great Britain.”

If the general provision gives access to all our ports, which must be the doctrine if it gives access to our Atlantic ports, then it would equally have this effect with regard to the Mississippi. But this clause clearly implies the contrary not only by introducing a special provision for the ports of the Mississippi but by introducing it expressly as a further or additional agreement—the words are “it is further agreed &c” and these ports are to be enjoyed by each party in as ample a manner as any of the Atlantic ports or places of the U States, or any of the ports or places of his Majesty in Great Britain. This reference to our Atlantic Ports coupling them with the ports of Great Britain shews that the Mississi [ppi] Ports are to be regulated by a rule or standard different from the ports for that inland navigation which is the general object of the article; else why that special reference? why not have stopped at the words “used by both parties”? If it be said, that the reference to our Atlantic Ports implies that they are within the purview of the article, let it be observed that the same argument would prove that the ports of Great Briain are also within its purview, which is plainly erroneous, for the main provisions are expressly confined to the territories of the parties on this continent. The conclusion is that the reference is to a standard out of the article and depending on other parts of the Treaty.

It may be useful to observe here, that the Mississippi Ports being to be used only in as ample, and not in a more ample, manner than our Atlantic Ports and the ports of Great Britain will be liable at all times to all the regulations privileges & restrictions of the ports with which they are assorted.

The next clause is a still further refutation of the construction which I oppose—“All goods and merchandize, whose importation into his Majestys said territories in America shall not be intirely prohibited, may freely for the purposes of commerce be carried into the same in the manner aforesaid by the Citizens of the U States, and such goods and merchandize shall be subject to no higher or other duties than would be payable by his Majestys subjects on the importation of the same from Europe into the said territories: And in like manner all goods and merchandize whose importation into the U States shall not be wholly prohibitted, may freely for the purposes of commerce be carried into the same in the manner aforesaid subject to no higher or other duties than would be payable by the Citizens of the U States on the importation of the same in American Vessels into the Atlantic Ports of the said States: and all goods not prohibitted to be exported from the said territories respectively may in like manner be carried out of the same by the two parties respectively paying duty as aforesaid”.

The words “in the manner aforesaid” occur twice in these clauses and their equivalent “in like manner” once? What is the meaning of this so often repeated phrase? It cannot be presumed that it would have been inserted so frequently without having to perform some office of consequence. I answer that it is evidently the substitute for these other words of the main provision, “by land and inland navigation.” This is “the manner aforesaid.” This is the channel through which goods and merchandizes passing would be subject to no other or higher duties than would be payable in the British territories by British subjects, if imported from Europe—in the territories of the U States, by citizens of the U States, if brought by American Vessels into our Atlantic ports. No other reasonable use can be found for the terms. If they are denied this sense, they had much better been omitted, as being not only useless but as giving cause to suppose a restriction of what it is pretended was designed to be general—a right of importing in every way and into all parts of the U States goods and merchandize, if not intirely prohibited, on the same duties as are payable by our own citizens when brought in our own vessels.

These words “whose importation into the UStates shall not be intirely prohibitted” is a further key to the true sense of the article. They are equivalent to these other words—“whose importation into all parts of the U States shall not be prohibitted.” The design of this clause is to prevent importation through the particular channels contemplated by the article being obstructed by a partial, or by any other than a general prohibition. As long as certain goods may be introduced into the U States through the Atlantic ports they may also be brought into them through the channels designated by this article, that is by land and inland navigation. The making a prohibition in the given case to depend on a general prohibition is conclusive to prove, that the article contemplates only particular channels. On any other supposition the clause is nonsense. The true reading then of this part of the article must be as follows—“Goods and merchandize whose importation into all parts of the U States shall not be prohibitted may freely for the purposes of commerce be carried into the same in manner aforesaid, that is by land and inland navigation, from the territories of His Majesty on the Continent of America.”

There are still other expressions in the article which are likewise an index to its meaning. They are these “would be payable by the Citizens of the UStates on the importation of the same in American vessels into the Atlantic Ports of the said States.” This reference to a rate of duties which would be payable on importation into the Atlantic ports, as a rule or guide for the rate of duties which is to prevail in the case meant to be comprehended in the article is full evidence that importation in the Atlantic ports is not included in that case. The mention of importation in American vessels confirms this conclusion as it shews that the article itself contemplates that the discrimination made by our existing laws may continue.

But the matter is put out of all doubt by those parts of the fifteenth article19 which reserve to the British Government “the right of imposing such duty as may be adequate to countervail the difference of duty now payable on the importation of European and Asiatic goods when imported into the UStates in British and in American Vessels”—and which stipulate that “the United States will not increase the now subsisting difference between the duties payable on the importation of any articles in British or in American Vessels.”

This is demonstration, that the Treaty contemplates, as consistent with it, a continuance of the present difference of duties on importations in American and British Vessels, and consequently that the third article, which stipulates equal duties, as to the cases within it, does not extend to importations into our Atlantic ports, but is confined to importations by land and inland navigation.20

If it were necessary to multiply illustration of this position, it might be asked whether tis probable G B could have meant by this article to give us free admission to any ports she may ever have on the Pacific Ocean within the American Continent? The jealousy with which she guards her ports in Canada & Nova Scotia is a negative answer to this question. And yet on the doctrine, opposite to mine, as there is no special exception but of the last mentioned ports, the right of access to Ports on the Pacific would be granted. It is also known that Great Britain has extensive views in that quarter, as appeared in the question of Nootka sound.21 There is a large district of Country denominated New Albion.22

These different views of the Article establish beyond the possibility of Doubt that except with regard to the Mississippi, inland trade and navigation are its sole objects—that it grants no right or privilege whatever in our Atlantic ports—and that with regard to the ports of the Mississippi it only establishes this principle that Great Britain shall always enjoy there the same privileges which by Treaty or Law she is allowed to have in our Atlantic Ports.

I remark incidentally, for a purpose which will appear hereafter, that as far as this article is concerned we are free to prohibit the importation into the U States at large of any British article whatever, though we cannot prohibit its importation partially, that is merely from her territories in our neighbourhood by land or inland navigation, but we may prohibit the importation by sea from those territories; nor is there any other part of the Treaty by which this is prevented.

The remaining clauses of this article establish the following points “that no duty of entry shall be levied by either party on pelt[r]ies brought by land or inland navigation into the respective territories” that Indians passing and repassing with their own goods shall pay no impost or duty upon them but goods in bales or other large packages unusual among Indians shall not be considered as their goods, that tolls and rates of ferriage shall be the same on both sides as are paid by natives, that no duties shall be paid by either party on the mere transit of goods across portages and carrying places from one part to another of the territory of the same party, that the respective Governments will promote friendship good neighbourhood and amicable intercourse by causing speedy and impartial justice to be done and necessary protection to be extended to all who may be concerned therein.

I shall conclude this paper with an observation or two on the meaning of the terms inland navigation. These terms have no technical meaning defined in the laws of either country, nor have they any precise meaning assigned by the laws of Nations. They however ex vi termini exclude navigation from the sea. And as a general rule I should say that inland navigation begins there, where sea navigation ends. Where is this? I answer at the ports of entry from the sea. By the laws of Great Britain and of the U States all Rivers are arms of the sea as far as the ordinary tides flow. It would be a consequence of this principle that sea navigation would reach to the head of tide water. But as some more obvious and notorious rule ought to govern the interpretation of national compacts the ports of entry from the sea are conceived to be the proper rule.23

In the case under consideration the general spirit of the article will require that all the waters which divide the territories of the parties should be in their whole extent common to both. As to other communicating waters accessible under the article the reciprocal limit of the right will be the ports of entry from the sea. This is with the exception of the Mississippi to the ports of which access from the sea is granted under the qualification which has been pointed out.