73 



"I should remark, also, that the free use of the navigation of the 

 Long Sault passage on the St. Lawrence must be extended to below 

 Barnhart's island, for the purpose of clearing those rapids." 



At page 352 of the same volume, in President Tyler's Message 

 transmitting the Ashburton Treaty to the Senate, it is said: 



"So, again, there are several channels or passages, of different 

 degrees of facility and usefulness, between several islands in the river 

 St. Clair, at or near its entry into the lake of that name. In these 

 three cases, the treaty provides that all the several passages and 

 channels shall be free and open to the use of the citizens and subjects 

 ■f both parties." 



After the draft treaty, which is said in this work to be in the 

 handwriting of Mr. Webster, and it had been transmitted by Presi- 

 dent Tyler to Congress, the word " equally " was inserted, and it is 

 said here in the handwriting of Mr. Webster:* To make plain and 

 clear that the usage and rights of those waters specifically mentioned 

 in Article VII of the treaty should be equally free and equally open 

 to the ships, vessels, and boats of both parties. Mr. Webster's in- 

 terest being at Detroit rather than in the St. Lawrence, and the 

 interest of Lord Ashburton, according to his original letter, being 

 more particularly in regard to the St. Lawrence and St. Clair rivers. 



That is so plain a declaration, in so prominent a document as an 

 international treaty, that I do not see how any tribunal or any court 

 could vary it or set it aside in any way; but, on the contrary, it must 

 be bound by it and give it due effect. 



Now, it was suggested in the argument of my learned friend, Mr. 

 Koonce, that perhaps it had been superseded. 



Mr. Tawxey: Before you leave that, may I ask you a question? 

 Do you contend that the word "equally" applies to any right other 

 than that of the right of navigation? 



Mr. Guthrie: It shall be "equally free and open." 



Mr. Powell: To the ships, vessels and boats? 



Mr. Guthrie: Yes; to the ships, vessels and boats. 



Mr. Powell: That is a limitation. 



Mr. Guthrie: For the moment I would think that navigation 

 would be the only thing in their minds. At that time, the develop- 

 ment of power would hardly have been present in their minds. 



Mr. Powell: The limitation to navigation means exclusion of 

 everything else. 



Mr. Guthrie: "Ships, vessels and boats" is as broad a term 

 applying to navigation as I think it could well frame. It would 

 include all the craft that were known at that time. 



Mr. Migneault: It might include the right to hsh in these 

 waters? 



Mr. Guthrie: No; I do not think the free rights to boats would 

 include a fishing right. 



*Owing to the defective accoustics of the room in which the hearinj; was held, 

 this sentence was mis-reported. Mr. Guthrie's statement was about as follows: — 



"Before the draft treaty, with the accompanying message — which is stated in 

 this work to have been written by Mr. Webster — ^had been transmitted by Presi- 

 dent Tyler to Congress, the word 'equally' was inserted and it is stated here in 

 plain and clear language that the usage and rights of those waters" etc. (Kd.) 



