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An appeal having been taken to the Supreme Court of the United States, that tribunal, upon the proofs, concurred in the conclusion that the Rio Grande was not navigable within the limits of New Mexico. Nor was it necessary, said the court, to consider the treaty stipulations between the United States and Mexico. The questions arising under treaties or international law might under other circumstances be interesting and important, but as it appeared that the United States was under an equal obligation to preserve the navigability of its navigable waters for its own people, the court would confine itself to the consideration of the case in that aspect. By the act of September 19, 1890, it was, said the court, obvious that Congress meant that there should thereafter be no interference with the navigability of a stream without the national assent. It was urged, however, that the operation of the act was limited to obstructions in the navigable portion of a navigable stream, and that, as the Rio Grande was not navigable in New Mexico, the statute did not there apply to it; but the court declared that the terms of the act embraced not merely obstructions to navigation, but any obstruction, wherever or however created, within the jurisdiction of the United States, which tended "to destroy the navigable capacity of one of the navigable waters of the United States." The decree of the court below was therefore reversed, and the case was remanded 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 will substantially diminish the navigability of that stream within the limits of present navigability, and if so, to enter a decree restraining those acts to the extent that they will so diminish."

United States v. Rio Grande Dam & Irrigation Co. (1899), 174 U. S. 690.

The commissioners of the New York State reservation at Niagara, Niagara River and in their report for the fiscal year ending September 30, 1898 (pp. 12-13), say:

Great Lakes.

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The volume of the river and cataract at Niagara is of course dependent upon the water supply of the Great Lakes. The Niagara River is but the overflow of Lake Erie, into which flow the waters of the other lakes. The lowering of the level of these lakes would diminish the flow into Lake Erie and reduce the volume of the Niagara River. Any very large withdrawal or diversion of water from one or more of the Great Lakes would scarcely fail to be noticeable in a reduced flow at the cataract.

"The commissioners deem it advisable that the National Government be requested to appoint a commission to confer with a Canadian commission as to the means to be devised to prevent any excessive

H. Doc. 551-42

diversion of the waters of the Great Lakes, and to consider the whole subject of the uses and control of these waters, and to report its conclusions to Congress, with such recommendations as it may desire to submit."

N. Y. Assembly Documents, 122nd session, 1899, vol. 2, pt. 2. See report of
Mr. Clark, of Wyoming, Committee on For. Rel., Feb. 23, 1900, on a
joint resolution (S. R. 71) authorizing the President to invite Great
Britain to join in creating an international commission to examine
and report on the diversion of the waters that form the boundaries
between the two countries. (S. Rep. 461, 56 Cong., 1 sess.)
Referring to the damages sustained by certain American citizens in con-
sequence of the erection of a dam by the Canadian authorities at
the head of the Beauharnois Canal, in Canada, a report of the execu-
tive council of Canada was communicated to the complainants, with
an expression of the hope that it would prove satisfactory to them.
(Mr. Appleton, Assist. Sec. of State, to Messrs. H. B. & T. S. Mears,
March 14, 1860, 52 MS. Dom. Let. 41.)

4. STRAITS.

(1) DIVISIONAL LINES.

§ 133.

The question of the limits of territorial jurisdiction in and over straits or narrow passages leading from one body of water to another is governed by substantially the same principles as that of the limits of territorial jurisdiction in and over rivers.

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By the treaty of June 15, 1846, it was agreed (Art. I.) that the boundary between the United States and the British possessions westward of the Rocky Mountains should follow the forty-ninth parallel of north latitude to the middle of the channel separating the continent from Vancouvers Island, and thence proceed southerly through the middle of said channel, and of Fuca's Straits, to the Pacific Ocean: Provided, however, That the navigation of the whole of said channel and straits, south of the forty-ninth parallel of north latitude, remains free and open to both parties.” By this stipulation, as well as by their acts subsequent to the award of the German Emperor of October 21, 1872, in the case of the San Juan water boundary, the contracting parties showed their intention to treat the entire waters of the Straits of Fuca as territorial. The straits of Juan de Fuca are not a great natural thoroughfare or channel of navigation in an international sense; and in view of their situation it is not apprehended that any other nation can make reasonable objection to the jurisdiction of the Government of the United States and of Great Britain over their entire area. The breadth of the narrowest point is believed to be about ten miles, but is not equal to the width of the Delaware Bay and other bodies

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of water over which, on account of their situation, the United States have felt authorized to assume jurisdiction."

Mr. Wharton, Acting Sec. of State, to Sec. of Treasury, May 22, 1891, 182 MS. Dom. Let. 79, citing Hall, Int. Law (3d ed.), 140. See Hall, 4th ed. 163.

(2) NAVIGATION.

§ 134.

In a series of resolutions adopted by the Institut de Droit International, at its session in Paris in 1894, on the subject of territorial waters the following general principles with regard to straits were laid down:

1. That straits whose shores belong to different states form part of the territorial waters of the bordering states, which exercise sovereignty to the middle line.

2. That straits whose shores belong to one state form, so far as concerns approach to the coast, part of the territorial waters of such state, although they may be indispensable as a means of maritime communication between two or more other states.

3. That straits which serve as a passage from one free sea to another can never be closed.

From the operation of these rules, straits actually subject to conventions or special usages were expressly reserved.

Institut de Droit International, Annuaire, XIII. (1894–95) 330-331.

dues.

From a date not definitely ascertained, the Danish Government Danish Sound levied tolls on vessels and cargoes passing through the sound and the two belts which form a passage from the North Sea into the Baltic. This exaction was justified by the Danish Government on the ground of immemorial usage, sanctioned by a long succession of treaties. It was also maintained that the Danish exercise of sovereignty had been beneficial to commerce, in the policing and lighting of the waters. The exclusive right of Denmark was recognized as early as 1368 by the Hanseatic Republics. The Emperor Charles V., by a treaty concluded at Spire, in 1544, agreed that the merchants of the Low Countries frequenting the ports of Denmark should pay the same duties as formerly. By a treaty with Henry VII. of England in 1490 English vessels were forbidden to pass the Great Belt as well as the sound, unless in case of unavoidable necessity, in which case they were to pay the same duties at Wyborg as if they had passed the sound at Elsinore. By a treaty between Denmark and the United Provinces of the Netherlands, concluded at Christianople in 1645, the amount of duties to be levied on the passage of the sound and belts was definitely ascertained, and it was stipulated that goods not specified in the tariff should pay according to

mercantile usage and the ancient practice. By a further treaty between the two powers, concluded at Copenhagen in 1701, it was stipulated that articles not specified in the tariff of 1645 should be assessed 1 per cent on their value at the place from which they came. The treaties of 1645 and 1701 were referred to in all subsequent treaties, as fixing the standard of rates to be paid by "privileged nations. Different rates were paid by nations not privileged. A revision of duties was effected by a convention between Denmark and Great Britain in 1841.a

By Article V. of the treaty of commerce and navigation between the United States and Denmark, concluded April 26, 1826, it was agreed that neither the vessels of the United States nor their cargoes should, when they passed the sound or belts, pay higher or other duties than those paid by the most favored nation. The subject of the dues was brought up for discussion in consequence of the BritishDanish treaty of 1841, which, as the United States maintained, virtually imposed on raw sugar and rice in paddy a duty of 2 per cent to the detriment of the trade of the United States. This question was duly adjusted. The subject of the dues was, however, revived by Mr. Calhoun in 1844, who instructed the diplomatic representative of the United States at Copenhagen to obtain further information concerning it.

“Under the public law of nations, it can not be pretended that Denmark has any right to levy duties on vessels passing through the sound from the North Sea to the Baltic. Under that law, the navigation of the two seas connected by this strait is free to all nations; and therefore the navigation of the channel by which they are connected ought also to be free. In the language employed by Mr. Wheaton, even if such strait be bounded on both sides by the territory of the same sovereign, and is at the same time so narrow as to be commanded by cannon-shot from both shores, the exclusive territorial jurisdiction of that sovereign over such strait is controlled by the right of other nations to communicate with the seas thus connected.' But the sound is not bounded on both its shores by Danish territory, nor has it been since the treaty of Roeskild, in 1658, by which all the Danish provinces beyond the sound were ceded to Sweden. So that even this pretext for levying the sound dues has ceased to exist for nearly two centuries.

a Wheaton's International Law (Dana's ed.), 264.

Mr. Webster, Sec. of State, to Mr. Jackson, min. to Denmark, No. 6, Sept. 1, 1841, H. Ex. Doc. 108, 33 Cong. 1 sess. 2.

c Mr. Webster, Sec. of State, to Mr. Bille, Danish min., June 27, 1842, H. Ex. Doc. 108, 33 Cong. 1 sess. 13.

d Mr. Calhoun, Sec. of State, to Mr. Irwin, min. to Denmark, No. 12, Sept. 13, 1844, H. Ex. Doc. 108, 33 Cong. 1 sess. 29.

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"It is true that for several centuries Denmark has continued to levy these dues; and she now claims this as a right, upon immemorial prescription, sanctioned by a long succession of treaties with foreign powers.' But the foundations of this claim were laid in a remote and barbarous age, even before the discovery of America; and the reasons which are now alleged in its support have no application whatever to the United States. They apply exclusively to the nations of Europe.

"It may be said that the 5th article of our treaty with Denmark of the 26th April, 1826, gives an indirect sanction to this practice, by providing that neither the vessels of the United States nor their cargoes shall, when they pass the sound or the belts, pay higher or other duties than those which are or may be paid by the most favored nation.' But this article does not recognize the right of Denmark to levy these duties. It is a mere submission to the practice for a period of ten years; and the Government of the United States may now at any moment give the notice required by the treaty, and thus terminate it at the end of one year.

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These duties are both vexatious and onerous to our navigation. The loss of time and delay of our vessels at Cronberg castle, whilst the duties are assessed and paid, constitute a serious annoyance and injury to our commerce. Besides, the amount of duties is so great as to be a heavy burden upon our trade to the Baltic. Your predecessor, Mr. Irwin, in a despatch under date of the 3d June, 1847, No. 121, to which I refer you, has furnished the department with tabular statements of the amount of these duties exacted from American vessels for a period of sixteen years, from 1828 to 1843, both inclusive; from which it appears that the average for each year would amount to $107,467.71. According to these statements, the average tonnage of our vessels going through the sound during these years was 21,415, and that returning was 21,108 tons. This sum would, therefore, be about equal to an average tonnage duty upon each vessel for passing and repassing the sound of $5 per ton, including both voyages. Besides there are other charges for light-money, fees, etc. This large tax is paid by vessels of the United States for liberty to pass through a strait between two seas, which, by the law of nature and of nations, is free and open to all mankind! The United States have thus long submitted to the exaction from deference and respect for Denmark; but it can not be expected, great as is our regard for that ancient and respectable power, that we shall submit to it much longer. . . .

"It is probable that two years might elapse before the existing convention could be terminated, as an act must first pass Congress to enable the President to give the required notice, after which a year must expire before it could be rendered effectual. During the whole period our vessels would be subject to the sound dues under the pres

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