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Show But the unregenerate outlook of the sovereignties at Westphalia in respect to international waters is emphasized by their assent or indifference to the provisions of the Treaty of Munstcr which closed the River Scheldt, ruined the greatest commercial port of medieval Europe,6 and planted the seeds of inter- national discord which, more than a century later, produced another great war and brought from the "Conseil Executif" of the first French Republic a ringing declaration that "... the stream of a river, is the common, inalienable property of all the countries which it bounds or traverses;,no nation can without injustice claim, the right exclusively to occupy the channel of a river and to prevent the neighboring upper riparian States from enjoying the same advantages; such a right is a remnant of feudal servitude, or at any.rate, an odious monopoly which must have been imposed by force and yielded by impotence; it is therefore revocable at any moment and in spite of any convention because nature does not recognize privileged nations any more than privileged individuals, and the rights of man are forever imprescriptible."? But what of America? The, colonial, development, the clash of overlapping boundaries, the invasion of European ouarrels, the rule of viceroys and royal governors during the century after the Peace of Westphalia, all taken together, impressed the international law of Europe more and more upon the fabric of colonial government until America could rightly claim the benefits, as she had perforce assumed the burdens, of whatever usages the sovereigns of Europe had mines, minerals, quarries, marshes, waters, lakes, fishing, hawkings, huntings and fowling, and all other royalties, profits," etc., which the Duke of York in I66I4. granted in the same language to Lord Berkeley and Sir George Carterot, who, in outlining a plan of government for the province and granting concessions "to and with all and every the adventurers and all such as shall settle or plant there" did provide: "That the inhabitants of the said Province have free pass- age thro* or by any seas, bounds, creeks, rivers or rivilets etc. in the said. Province, thro' or by which they must necessarily pass to come from the main ocean to any part of the province aforesaid." 5 Thorpe fs Constitutions, "dy^hr 25I4IJ.. Later in the same Duke of YorkTs Confirmation to the 2I4. Proprietors, dated March ll;, 1682, the granting clause contained this language; ". . .as also the free use of all bays, rivers, and waters, leading into or lying be- tween the said promises, or any of them, in the said parts of East Nevr Jersey, for navigation, free trade, fishing or othervri.de, to have and to hold, . . .tf 5 Thorpe's Constitutions, 2572• Nearly identical language was used in similar grants to the original founders of all the other American colonies, including the direct grant of Charles II to Edward, Earl of Clarendon et al., of the Charter of Carolina, dated March 20, I663,-who were also given power to crea-te "such and so many seaports, harbours, creaks and other places, for lading an<d unlading of goods and merchandise ... with such jurisdiction, privileges and franchises unto the said ports belonging as to them shall seem most e:cpcdion~t.' 5 Thorpe's Constitutions, 2rJkk-2rjk9* The "Fundamental Constitution of Carolina" set up by the Proprietors in the year 1669 provided' that the admiral's court , consisting of one of the proprietors and his six councillors: "...shall have the care and inspection over all ports, moles, and navigable rivers,, so far as the tide flows, and also all the public shipping of Carolina, and stores there- unto belonging, and all maritime affairs," Like jurisdiction was given to the "high steward's court" over "passages by water above the flood of the tide . . . Corruption or infection of the common air or water, and all things in_ order to the public commerce and health." 5 Thorpe's Constitutions, 2777* |
