reply to those which I addressed to the Department on the 13th of March and the 24th of the preceding May, and the 2d and 12th of June, with respect to the question raised touching the ownership of the islands of Morteritos and Sabinitos, situated in the Rio Bravo. "You were pleased to state in the aforesaid note that the island of Sabinitos appeared marked as No. 14 in the maps of the original survey made by the boundary commission in 1853, and that it remained on the Mexican side, for which reason there can be no doubt thereto, and with respect to the island of Morteritos or Beaver Island or Island No. 13, you state: "That the facts and record of the case warrant and demand that the Government of the United States shall regard its territorial jurisdiction over the island of Morteritos, otherwise Beaver Island (No. 13), as established by the boundary commission under the treaty of Guadalupe-Hidalgo. "To the end that the Mexican Government might better examine the bases presented by you in order to reach the conclusions which you expressed, I solicited, together with General Emory, permission to examine the original maps of the mixed boundary commission which exist in the Department of State, since I could not here consult the copies existing in Mexico. "There appeared to be an evident confusion in the name of Island No. 13, and it did not clearly appear whether it was or was not the island of Morteritos. "A careful examination on this subject having been made by my Government, the President has decided not to insist upon the rights of Mexico over the island of Morteritos in the supposition that it is Island No. 13, or Beaver Island. "The bases of this decision rest upon the stipulations of the fifth article of the treaty of Guadalupe-Hidalgo of February 2, 1848, that the dividing line between our two countries from the Gulf of Mexico to Paso del Norte should be the center of the Rio Grande, and that where this river had more than one channel the line should follow the deepest. This circumstance being borne in mind by the boundary commission in laying down the line, the channel which lay to the south of Island No. 13, or Morteritos, or Beaver Island, left this island upon the side of the United States. "As this is the basis presented by the Government of the United States to defend its rights to that island, it thus recognizes that the limit between the two Republics are those fixed by the treaty of Guadalupe-Hidalgo, such as were laid down by the mixed commission, without having been altered by the changes occasioned by the current of the river, whether in its margins or the deepest of its channels. "It is very satisfactory to me to see that in this important point there is an uniformity of views and principles between our two Governments. "I cannot end this note without calling your attention to the good faith and justice of the Government of Mexico in the present case, since instead of leaving this matter pending, or proposing that it should be decided by the treaty which it has submitted for the consideration of the United States, it has acted with loyalty in recognizing their rights without reserve.” Mr. Romero, Mexican Minister, to Mr. Frelinghuysen, Sec. of State, Oct. 9. "The State of Texas has municipal jurisdiction under the law of nations over the Rio Grande to the middle of the stream, so far as it divides Texas from Mexico. This is subject to such international jurisdiction as the United States may have over such waters under the Constitution of the United States, and to the right of the free use by Mexico of the channel." After quoting Article V of the treaty of Guadalupe Hidalgo, the instruction proceeds to say: "It may be proper to add that it has been held in this Department that when, through the changing of the channel of the Rio Grande, the distance of an island in the river from the respective shores has been changed, the line adjusted by the commissioners under the treaty is nevertheless to remain as originally drawn." Mr. Bayard, Sec. of State, to Mr. Bowen, June 12, 1886. MSS. Dom. Let. When a great river is the boundary between two nations or states, if the original property is in neither and there be no convention respecting it, each holds to the middle of the stream. But where a state which is the original proprietor grants the territory on one side only, it retains the river within its own domains, and the newly-erected state extends to the river only. In such case the lower-water mark is its boundary, whether the fluctuations in the stream result from tides or from an annual rise and fall. Handly v. Anthony, 5 Wheaton, 374. Where a river forms the boundary between two countries, and the only access to the adjacent territories is through such river, the waters of the whole river must be considered as common to both nations, for all purposes of navigation, as a common highway. Hence, the mere transit of a French vessel through the waters of a river which forms the boundary between the United States and the territory of a foreign state, for the purpose of proceeding to such territory, cannot be taken to subject the vessel to penalties imposed by the United States upon French vessels for entering their territory. The Apollon, 9 Wheaton, 362. In a disputed boundary case, in which a State was held to have ownership of soil and jurisdiction in the bed of a river, the bed of the river was defined to include "that portion of its soil which is alternately covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn." It was also held that in places where the bank was not defined, the line must be continued up the river on the line of its bed, as defined above. State of Alabama v. State of Georgia, 23 Howard, 505. Where a river is the boundary between two nations, it continues so notwithstanding accretion and decretion of its banks; but if it vio lently leave its bed, the latter remains the boundary. 8 Op., 175, Cushing, 1856. When a river is in the territory of a particular state, then the public control of the entire river and jurisdiction of offenses committed on it, belong properly to such state. On this topic Holtzendorff, Enc. 1223, cites Wurm, Briefe über die Freiheit der Flussschiffahrt, 1858; Caratheodory, Du droit int. concernant les grands cours d'eau, 1861; Engelhard, Du regime conventional des fleuves, 1870. By the treaty of Versailles, of 1783, by which the independence of the United States was recognized, it was provided in article 8, that 'the navigation of the river Mississippi shall forever remain free and open to the subjects of Great Britain, and the citizens of the United States.' But the United States having purchased Louisiana, on April 30, 1803, from France, and Florida from Spain, on February 22, 1819, acquired possession of the banks on both sides of the Mississippi, and the treaty of Ghent, of December 24, 1814, no doubt for this reason, omitted all reference to the rights of British subjects to the navigation of the river. Since then the exclusive control of the river by the United States, so far as concerns foreigu states, has been conceded internationally; though, subject to police supervision and to the right to impose pilotage and quarantine regulations, the free navigation of this and of other navigable rivers within the United States is, by the law of nations, accepted by the United States, open to all ships of foreign sovereigns. The right freely to navigate the Saint Lawrence, was for many years the subject of controversy between Great Britain and the United States; the United States insisting on the right of free passage over this river, the lakes by which it is fed being in large part bounded by the United States. This right, however, was resisted by Great Britain. 'It is difficult to deny,' says Sir R. Phillimore (Phil. Int. Law, 3d ed., 245), 'that Great Britain may have grounded her refusal upon strict law; but it is at least equally difficult to deny, first, that in so doing she put in force an extreme and hard law; secondly, that her conduct with respect to the navigation of the Saint Lawrence was inconsistent with her conduct with respect to the navigation of the Mississippi. On the ground that she possessed a small tract of domain in which the Mississippi took its rise, she insisted on her right to navigate the entire volume of its waters; on the ground that she possessed both banks of the Saint Lawrence where it disembogued itself into the sea, she denied to the United States the right to navigation, though about one-half of the waters of Lakes Ontario, Erie, Huron, and Superior, and the whole of Lake Michigan, through which the river flows were the property of the United States.' The question, however, was settled with the withdrawal, in the reciprocity treaty of June 5, 1854, of the exclusive claims of Great Britain. This treaty, it is true, ceased to exist on January 18, 1865, by action of the Government of the United States, in pursuance of a right reserved in this treaty ; but the exclusive navigation of the river has not since then been insisted on by Great Britain." Whart. Com. Am. Law, and see, also, Lawrence's Wheaton, n. 114, p. 361. As regulating rights to navigable rivers, see treaties of the United States with Ar gentine Confederation, 10 U. S. Stat. at L., 1005; with Mexico, ib., 1031; with Bolivia, 12 ib., 1003; with Paraguay, ib., 1091. Mr. Field (International Code, § 55) states the rule as follows: "A nation, and its members, through the territories of which runs a navigable river, have the right to navigate the river to and from the high seas, even though passing through the territory of another nation, subject, however, to the right of the latter nation to make necessary or reasonable police regulations for its own peace and safety. Message of President Grant to the Congress of the United States, December, 1870, and treaties there cited." "By the Roman law a free passage is given to all parties over all navigable rivers with the use of the shore (jus littoris) for unloading cargo and anchoring vessels. (i, 96 res 1-5, Inst., ii, 1.) A distinction, however, was taken between the sea, which was communes" and navigable rivers, which were "res publicae." The same view was taken by Grotius (Lib. II, c. ii, § 12), but the great weight of authority since Vattel is that the state through which a river flows is to be the sole judge of the right of foreigners to the use of such river. Wheat. Int. Law, i, 229; Vattel, I, i, § 292. "On the other hand, when the free navigation of a river is conceded, this carries with it the right to use the shores so far as this is necessary to the use of the river. Phil., ut sup., i, 225; Wheat. Hist. of Law of Nat., 510." Whart. Com. Am. Law, § 191. "When a navigable river forms the boundary between between two states, both are presumed to have free use of it, and the dividing line. will run in the middle of the channel, unless the contrary is shown by long occupancy or agreement of the parties. If a river changes its bed, the line through the old channel continues, but the equitable right to the free use of the stream seems to belong, as before, to the state whose territory the river has forsaken. "When a river rises within the bounds of one state and empties into the sea in another, international law allows to the inhabitants of the upper waters only a moral claim or imperfect right to its navigation. We see in this a decision based on strict views of territorial right, which does not take into account the necessities of mankind and their destination to hold intercourse with one another. When a river affords to an in land state the only, or the only convenient means of access to the ocean and to the rest of mankind, its right becomes so strong, that according to natural justice possession of territory ought to be regarded as a far inferior ground of right." Woolsey, § 58. "Where the entire upper portion of a navigable river is included within 1 Halleck Int. Law (by Baker), 146. Portions of the correspondence with Great Britain in 1824-27, as to the river St. For notices of the free navigation of the Mississippi, the St. Lawrence, the S. Mis. 162-VOL. I-7 97 SOVEREIGNTY OVER WATER. [CHAP. II. For American and British papers prepared in negotiatious of 1822-223 see Senate As to Amoor River, and papers as to explorations of, see House Ex. Doc. No. 98, An article by M. E. Engelhardt, on neutrality in relation to "fleuves internation aux et aux canaux maritimes," is given in Revue de Droit Int., 1886, No. 2, 159. As to admiralty jurisdiction over rivers, see infra, § 35a. As to Congo River, see infra, & 51. See, further, App., Vol. III, § 30. By the treaty of April 9, 1855, the Argentine Republic conceded the free navigation of the rivers Parana and Uruguay, such "free navigation" * belonging "to the merchant vessels of all nations." By a treaty of February 4, 1859 (proclaimed March 12, 1860), the free navigation of the Paraguay, so far as belonging to the Republic of Para guay, is granted by Paraguay to the United States. Bolivia, by the treaty of May 13, 1858 (proclaimed January 8, 1883), grants to the United States similar privileges as to the La Plata and the Amazon. As to the Amazon, whose waters flow through Peru, Ecuador, and Bolivia, the following is to be observed: Peru, by its treaty of July 26, 1851, gives to the United States, as to the Amazon, the privileges of the most favored nation, which carries the privileges of free navigation granted by Peru to Brazil. Ecuador, in 1853, decrees free navigation of its rivers, which include the affluents of the Amazon. The same rights are granted by Bolivia to the United States by the treaty of May 13, 1858, above noticed. See infra, §§ 40, 157, 321. "As to the Peruvian tributaries of the Amazon, a controversy arose between the United States and Peru. By the treaty between those powers, of 26th July, 1851, it is agreed that there shall be reciprocal liberty of commerce and navigation between their respective territories,' and that 'the citizens of either may frequent with their vessels all the coasts, ports, and places of the other where foreign commerce is permitted, and shall have full liberty to trade in all parts of the territories of either'; and each agrees not to grant any favor, privilege, or immunity whatever, in matters of commerce and navigation, to other nations which shall not be immediately extended to the citizens of the other contracting party. On the 23d October following, Peru made a treaty with Brazil to regulate the navigation of the Amazon and its tributaries, in which it is agreed that vessels of either country, passing to or from portions of the other on that river or its tributaries, shall be subject only to reciprocal duties, such as either nation lays on its own products. The United States contended that this treaty came within the operation of the reciprocal clause of the treaty of the 26th July, 1851, and gave to our commerce the same right in the Peruvian tributaries of the Amazon with Brazilian commerce." Dana's Wheaton, § 205, note 118. By a decree taking effect September 7, 1867, Brazil opened the Amazon to foreign commerce, and the same course was taken by Peru, on December 17, 1868. Infra, § 157. "By the treaty of December 30, 1853, between the United States and Mexico, navigation is made free to vessels of the United States to and from their own territory, through the Colorado and the Gulf of California, and through the Mexican part of the Rio Grande below latitude 31° 47' 30"." Dana's Wheaton, § 205, note 118. |