Mr. Moore, Assist. Sec. of State, to Mr. McGowan, June 15, 1898, 229 MS. President McKinley, in his annual message of Dec. 5, 1898, stated that the As to the four reports, dated June 30, 1897, in the case of bridges at Laredo and at Eagle Pass, Texas, jetties at Hidalgo, Texas, and defensive works at Brownsville, Texas, see Mr. Cridler, Third Assist. Sec. of State, to Gen. Mills, Oct. 26, 1897, 222 MS. Dom. Let. 23, enclosing the four reports of the latter, all dated June 30, 1897, with enclosures, all in original. October 12, 1894, Mr. Romero, Mexican minister at Washington, represented the urgent necessity of a decision as to the taking of water from the Rio Grande in Colorado and New Mexico, which was said to have seriously affected the existence of the frontier communities for several miles below Paso del Norte. The communication was referred to the Secretary of Agriculture. There seemed to be reason to believe that the low state of the Rio Grande at Ciudad Juarez was due to drought rather than to the use of the waters for irrigation. For. Rel. 1894, 395, 397. "The problem of the storage and use of the waters of the Rio Grande for irrigation should be solved by appropriate concurrent action of the two interested countries. Rising in the Colorado heights, the stream flows intermittently, yielding little water during the dry months to the irrigating channels already constructed along its course. This scarcity is often severely felt in the regions where the river forms a common boundary. Moreover the frequent changes in its course through level sands often raise embarrassing questions of territorial jurisdicition.” President Cleveland, annual message, Dec. 3, 1894. The Mexican Government having represented that the diminution of the water in the Rio Grande by irrigation works on its upper waters and their affluents in Colorado and New Mexico was a viola tion of international law and of Article VII. of the treaty of Guadalupe Hidalgo of February 2, 1848, the Attorney-General of the United States advised (1) that, under international law, the United States was not obliged to deny to its inhabitants the use of the waters of that part of the river lying wholly within its jurisdiction, even though such use reduced the volume of water below the point where the river ceased to be wholly within the United States, and (2) that the operation of Article VII., which prohibited "any work that may impede or interrupt, in whole or in part," the right of navigation, was in terms limited to that part of the river which formed the common boundary between the two countries. The Attorney-General observed that it did not pertain to his Department to consider whether any action should be taken on grounds of comity or of policy. Harmon, At.-Gen. (Dec. 12, 1895), 21 Op. 274. 66 Proceedings were taken in 1897 by the Attorney-General, under the acts of Congress of Sept. 19, 1890, § 10, 26 Stat. 426, 454, and July 13, 1892, § 3, 27 Stat. 88, 110, which prohibit the creation, without permission of the Secretary of War, of any obstruction to the navigable capacity of any waters in respect of which the United States has jurisdiction. It was held that this prohibition extended, not merely to obstructions built at places where a stream is navigable, but to "any obstruction to the navigable capacity," embracing anything, whereever done or however done, within the limits of the jurisdiction of the United States, which tends to destroy the navigable capacity of one of the navigable waters of the United States." Hence, although it was found that the Rio Grande was not a navigable river in New Mexico, the case was remanded to the court below with instructions "to order an inquiry into the question whether the intended acts of the defendants in the construction of a dam and in appropriating the waters of the Rio Grande [at Elephant Butte, in New Mexico] will substantially diminish the navigability of that stream within the present limits of navigability, and if so, to enter a decree restraining those acts to the extent that they will so diminish." (United States r. Rio Grande Dam and Irrigation Co. (1899), 174 U. S. 690, 708–709, 710.) See, supra, § 132, p. 654. It seems that the further use of the River Pecos for irrigation purposes would not affect the international question between the United States and Mexico, since it "falls into the Rio Grande at a point where the diminution of its waters have little if any perceptible effect upon the volume passing downward from that point." (Mr. Olney, Sec. of State, to Sec. of Interior, Jan. 11, 1897, 215 MS. Dom. Let. 160.) "The operations of the international commission organized under the convention of March 1, 1889, between the United States and Mexico to determine disputes which have arisen by reason of changes in the fluvial boundary of the two countries, having been extended for another year, until December 24, 1896, by a convention signed October 1, 1895, occasion was taken at the same time, by a friendly understanding between the two Governments, to enlarge the duties of the commissioners by charging them to examine and report touching questions of irrigation and storage dams on the Rio Grande. Important issues are involved therein, only to be determined in principle, and, as to that part of the river which forms the common boundary, in fact also, by a conventional agreement of the two countries, so that it naturally behooves them to approach the discussion and negotiation with all possible knowledge, in order that the riparian rights of the respective owners of the river banks may be justly determined and intelligently enforced.” Report of Mr. Olney, Sec. of State, to the President, Dec. 7, 1896, For. For correspondence as to the pumping station of the Arizona Improvement The International Water Boundary Commission, as the result of their consideration of the subject of the equitable distribution of the waters of the Rio Grande," recommended an international dam and reservoir, approved by Mexico, but still under consideration by this Government." President McKinley, annual message, Dec. 5, 1898. See Reports on the Investigation and Survey for an International Dam and Reservoir on the Rio Grande del Norte to Preserve the Boundary Between the United States and Mexico by Controlling the Flood Waters of Said River, with Appendices A, B, C, D, and E, by Anson Mills, Major 10th Cavalry, Supervising Engineer Geological Survey, and W. W. Follett, Civil Engineer: Washington, Government Printing Office, 1896, 86 pp. 3. THE PHILIPPINES. § 161. As to the boundary of the Philippine Islands, see supra, § 109, pp. 530-531. 4. SAMOAN ISLANDS. $162. As to the boundary of the American islands in the Samoan group, see supra, § 110, p. 553. IV. NORTHEASTERN FISHERIES. 1. TREATY OF 1782-83. $ 163. The argument on which the people of America found their Negotiations of claim to fish on the banks of Newfoundland arises, 1782. first, from their having once formed a part of the British Empire, in which state they always enjoyed, as fully as the people of Britain themselves, the right of fishing on those banks. They have shared in all the wars for the extension of that right; and Britain could with no more justice have excluded them from the enjoyment of it (even supposing that one nation could possess it to the exclusion of another), while they formed a part of that Empire, than they could exclude the people of London or Bristol. If so, the only inquiry is, How have we lost this right? If we were tenants in common with Great Britain while united with her, we still continue so, unless by our own act we have relinquished our title. Had we parted with mutual consent we should doubtless have made partition of our common right by treaty. But the oppressions of Great Britain forced us to a separation (which must be admitted, or we have no right to be independent); and it can not certainly be contended that those oppressions abridged our rights or gave new ones to Britain. Our rights, then, are not invalidated by this separation, more particularly as we have kept up our claim from the commencement of the war, and assigned the attempt of Great Britain to exclude us from the fisheries as one of the causes of our recurring to arms.” Mr. R. R. Livingston, Secretary of State, to Dr. Franklin, January 7, 1782, 5 Wharton's Dip. Cor. Am. Rev. 87, 91; 9 Franklin's Works (Sparks' ed.), 135. “Louisburg, on Cape Breton, held by the French, was supposed to be the most important and commanding station [in French North America] and to have more influence than any other upon the destinies of this part of the country. And, Mr. President, it was a force of between three and four thousand Massachusetts men, under Pepperell, and a few hundred from the colonies, with two hundred and ten vessels, that sailed to Louisburg, invested and took it for the British Crown in trust for the British Crown and her colonies." (Mr. Dana, Hallfax Com., II. 1653.) Among the subjects discussed by the peace commissioners of the United States and Great Britain at Paris in 1782, the two that were the most strongly contested and the last disposed of were those of the fisheries and the compensation of the loyalists. The provisional articles of peace were concluded November 30, 1782. On the 25th of that month the British commissioners delivered to the American commissioners a third set of articles, containing fresh proposals of the Brit a ish ministry, and representing the results of many weeks of negotiation. By the third article it was proposed that "the citizens of the United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence; and also to dry and cure their fish on the shores of the Isle of Sables and on the shores of any of the unsettled bays, harbors, and creeks of the Magdalen Islands, in the Gulf of St. Lawrence, so long as such hays, harbors, and creeks shall continue and remain unsettled, on condition that the citizens of the said United States do not exercise the fishery but at the distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery on the coast of the island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coasts of the island of Cape Breton." This proposal, by which the citizens of the United States were forbidden not only to dry fish on the shores of Nova Scotia, but also to take fish within three leagues of the coasts in the Gulf of St. Lawrence and within. fifteen leagues of the coasts of Cape Breton outside of that gulf, was unacceptable to the American commissioners. On the 28th of November John Adams drew up a counter project, which was submitted in a conference of the commissioners on the following day. It provided that the subjects of His Britannic Majesty and the people of the United States should "continue to enjoy, unmolested, the right to take fish of every kind, on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulf of St. Lawrence, and in all other places, where the inhabitants of both countries used at any time heretofore to fish," and that the citizens of the United States should "have liberty to cure and dry their fish on the shores of Cape Sables, and any of the unsettled bays, harbors, or creeks of Nova Scotia, or any of the shores of the Magdalen Islands, and of the Labrador coast;" and that they should be permitted, in time of peace, to hire pieces of land, for terms of years, of the legal proprietors, in any of the dominions of his Majesty, whereon to erect the necessary stages and buildings, and to cure and dry their fish."» One of the British commissioners objected to the use of the word right, in respect of the taking of fish on the Grand Bank and other banks of Newfoundland, in the Gulf of St. Lawrence, "and in all other places, where the inhabitants of both countries used at any time heretofore to fish." Another said that "the word right was an obnoxious expression." Adams vehemently contended for the right " a Wharton's Dip. Cor. Am. Rev. VI. 74–76. b Id. 85. |