"By the treaty of 1783, the two nations fixed a certain boundary line through the lakes and the connecting waterways, each claiming for itself and conceding to the other territorial jurisdiction in the waters on the respective sides of the boundary line up to the line itself. "By the treaty of 1794, the right of common navigation of the boundary waters was reciprocally stipulated in favor of the citizens and subjects of the two countries. By the treaty of 1871, these rights of navigation and passage were extended and defined as regards the several waterways of communication and access lying wholly within. the territory of the respective parties. "The rights so shared by convention relate to navigation and transit alone. As to other uses or purposes the two countries have uniformly reserved and asserted territorial jurisdiction over their respective treaty waters. "A recent recognition of this jurisdiction is contained in the reciprocal legislation of the United States and Canada whereby each country gives wrecking privileges in the lakes and waterways on its side of the line to vesels of the other country. "The right of fishing cannot by any parity or stretch of reasoning be deemed a part of the stipulated rights of navigation and transit; and it has not, by convention or reciprocal legislation in the nature of a treaty, been created in favor of the citizens of either country fishing in the waters of the other. "It is assumed that the Canadian authorities act in accordance with the law of the Dominion in prohibiting unlicensed fishing on the Canadian side of the boundary line running through the Great Lakes as fixed by existing treaty. That no corresponding prohibition has been established on this side under Federal or State laws in no wise affects the competence of Canada to legislate for the regulation and protection of its fisheries on its side of the boundary. The right of the United States to so legislate is equally complete. "The right of fishing in the waters of the lakes or in the connecting waterways thereof depends merely upon the local law, and this Government cannot complain against the action of Canada in excluding our citizens from unlicensed fishing on the Canadian side of the conventional boundary, even though at a greater distance than three miles from shore. . . "Any cases of Canadian interference with the operations of American citizens taking fish within the territorial waters of the United States will be promptly considered and pressed upon due establishment of the fact. In this regard the question is not novel, similar cases having occurred in the past, especially in the narrow waterways where the location of the boundary admitted of little doubt, and having been disposed of upon the ascertained facts. That the Do minion authorities have not heretofore systematically asserted their fishery rights in the more open waters of the lakes is supposed to be because until this year no adequate patrol force had been established." Mr. Uhl, Acting Sec. of State, to Messrs. Laughlin, Ewell & Houpt, May 23, 1894, 197 MS. Dom. Let. 118. See, to the same effect, Mr. Gresham, Sec. of State, to Mr. Hooker, Jan. See, also, Mr. Uhl, Act. Sec. of State, to Mr. Springer, Feb. 8, 1895, 200 An American fisherman is not entitled to damages for the seizure of his "The international boundary in the river [St. Lawrence] channel is not (3) NAVIGATION. § 138. In respect of the right of navigation, the lakes that separate the two countries, i. e., Lakes Ontario, Erie, Huron, and SuLakes Ontario, perior, and their water communications, are treated Erie, Huron, as international waters, being dedicated in perpetuity to the common navigation of all the inhabitants. and Superior. It may be superfluous to remark that this common right of navigation does not embrace the respective coasting trade of the contracting parties, a limited participation in which was reciprocally conceded by Article XXX. of the treaty of Washington of May 8, 1871. This article was terminated by notice, in conformity with the stipulations of the treaty, July 1, 1885. The act of Congress of March 3, 1851 (9 Stat. 635), limiting the liability of ship owners in certain cases, in terms declared that its provisions should not apply to vessels used in "rivers or inland navigation." It was held that this exception did not embrace a propeller enrolled and licensed for the coasting trade between places in different ་་ States on the Great Lakes and actually engaged in a voyage from Buffalo to Detroit, such navigation not being properly regarded as "inland navigation." The Great Lakes, said the court, "form a boundary between a foreign country and the United States " for a distance of some 1,200 miles, and are of an average width of at least 100 miles. . The aggregate length of these lakes is over 1,500 miles, and the area covered by their waters is said to be some 90,000 square miles... The waters of these lakes, in the aggregate, exceed those of the Baltic, the Caspian, or the Black Sea, and approach in magnitude those of the Mediterranean. They exceed those of the Red Sea, the North Sea or German Ocean, the Sea of Marmora, and of Azoff, and, like the lakes, all of these seas, with the exception of the North Sea, are tideless." Moore v. American Transportation Co., 24 How. 1, 37. By Article XXVIII. of the treaty of Washington of May 8, 1871, it was stipulated that the navigation of Lake MichiLake Michigan. gan, which lies wholly within the jurisdiction of the United States, should, for the term of years mentioned in Article XXXIII. of the treaty, "be free and open for the purposes of commerce to the subjects of Her Britannic Majesty, subject to any laws and regulations of the United States or of the States bordering thereon not inconsistent with such privilege of free navigation.” a By Article XXXIII. it was provided that Articles XVIII.-XXV., which related to the fisheries, and Article XXX., which granted to the citizens of each country a certain participation in the coasting trade of the other, should remain in force ten years after they should come into operation, and further till the expiration of two years after either party should have given notice to the other of its wish to terminate them. July 2, 1883, the United States, pursuant to a joint resolution of Congress gave notice of the termination of Articles XVIII-XXV.. inclusive, and Article XXX. of the treaty of May 8, 1871; and it was agreed that Article XXXII. fell with them, it being wholly dependent upon them. No mention was made of Article XXVIII.c (4) WATER COMMUNICATIONS. § 139. In the discussion of the boundary from Lake Superior to the Lake of the Woods, by the commissioners under Article VII. of the treaty a See Art. IV. of the reciprocity treaty of 1854. For. Rel. 1883, 413, 435, 441, 451, 464; For. Rel. 1884, 214–215. See, also, H. Ex. Doc. 434, 50 Cong. 1 sess. See speech of Mr. Hitt, House of Representatives, Sept. 4, 1888, Cong. Record, 50 Cong. 1 sess. XIX. 8272, 8274-8275. of Ghent, the British commissioner offered to enter and ascend the Pigeon River and proceed by a certain water communication to Lake Namekan, provided that the Grand Portage should remain free to both parties. The Government of the United States held that the powers of the American commissioner under the treaty did not authorize him to enter into such an engagement, but added: "Any stipulation that the Grand Portage should remain free to both parties is, moreover, unnecessary according to the principles which the Government of the United States considers applicable to the subject. Agreeably to these principles, both parties, Great Britain and the United States, have the right of navigation from the highest navigable source of the Lakes to the sea, through all the water communications by which they are connected with one another, or with the ocean. To enter into a stipulation by which that right shall be affirmed in regard to any particular link of that chain, would therefore not only be superfluous, but might bring into question the soundness of those principles in their application to other parts of the same chain." Mr. Clay, Sec. of State, to Mr. Porter, Nov. 13, 1826, 21 MS. Dom. Let. 422. A question of a different kind was referred to in a letter of Mr. Buchanan, Secretary of State, to the governors of the States of New York and Vermont, communicating to them a copy of a note and accompanying memorial received at the Department of State from the British chargé d'affaires ad interim at Washington, remonstrating on behalf of certain inhabitants of Canada against the placing of any impediment in a position to interrupt the navigation of the waters connecting Missisquoi Bay with the River Richelieu. The Missisquoi Bay, it may be observed, lies in Canada on the east and the Richelieu River on the west of a tongue of land that extends down into Lake Champlain about a sixth of a degree of latitude below the line that divides the States of New York and Vermont from the British possessions, so that it was necessary to round this point in United States waters in order to navigate between the river and the bay. Mr. Buchanan, in communicating the copy of the note and memorial, said: "Although the Federal Government does not admit the right of the Canadian authorities to interfere in this matter, yet I have deemed it due to our amicable relations with Great Britain to transmit this application to your excellency. This has been done under the conviction it will receive that degree of consideration to which it may be justly entitled, proceeding, as it does, from the subjects of a friendly power in a neighboring province." (Mr. Buchanan, Sec. of State, to the governors of New York and Vermont, April 7, 1848, 36 MS. Dom. Let. 405.) By Article VII. of the Webster-Ashburton treaty of August 9, 1842, it is "agreed that the channels in the river St. Lawrence on both sides of the Long Sault Islands and of Barnhart Island, the channels in the river Detroit on both sides of the island Bois-Blanc, and be tween that island and both the American and Canadian shores," and all the several channels and passages between the various islands lying near the junction of the river St. Clair with the lake of that name, shall be equally free and open to the ships, vessels, and boats of both parties;" while by Article II. of the same treaty it is declared to be “understood that all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon River, as now actually used, shall be free and open to the use of the citizens and subjects of both countries." tions. (5) USE OF CANALS. § 140. By Article IV. of the reciprocity treaty of 1854 the right to naviTreaty stipula- gate the canals in Canada used as part of the water communication bewteen the Great Lakes and the Atlantic Ocean was temporarily secured to the inhabitants of the United States; while the Government of the United States engaged to urge the State governments to permit British subjects to use the several a In June, 1895, the American tug Grace A. Ruelle, while towing a scow loaded with garbage from Detroit to a dumping place in Lake Erie, was arrested by Canadian officials at a point in Detroit River, on the British side of the boundary, between the island Bois-Blanc and the Canadian shore, and was taken to Amherstburg, in the township of Malden, Province of Ontario, where the master and crew were eventually charged with bringing a scow loaded with garbage into the township of Malden, and on t's charge were tried, convicted and fined. "It is clear that under the treat, which opens the Canadian as well as the American waters of the river to American navigation at this point, the mere passage of a boat loaded with garbage through that part of the township of Malden which covers the open channel of the river is not a violation of the municipal health laws or regulations of that township. . . . The stoppage of the garbage-laden barge and the conveyance of it into the harbor of Amherstburg was the work of Canadian officials, whose forcible intervention prevented the passage of the garbage onward to its original and lawful destination." (Mr. Olney, Sec. of State, to Mr. Bayard, amb. to England, April 14, 1896, MS. Inst. Gr. Br. XXXI. 421.) It having been intimated, with reference to projected improvements in the Detroit River by the U. S. Engineer Corps, that the collecter of customs at Amherstburg would seize any American plant working in Canadian waters, the British ambassador at Washington was requested, in view of the pleasant relations which had previously prevailed in the prosecution of the work and of the benefit Canada would derive from it, to obtain the permission of the Dominion authorities for the improvements to be proceeded with "along the best lines without regard to the exact location of the international boundary line." (Mr. Gresham, Sec. of State, to Sir J. Pauncefote, Brit. amb., July 6, 1893, MS. Notes to Gr. Br. XXII. 352.) See Webster's Works, VI. 351–352. |