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SECTION 5.-BOUNDARIES.

FOSTER & ELAM v. NEILSON.

SUPREME COURT OF THE UNITED STATES, 1829.

(2 Peters, 253.)

This was the case of lands in the disputed territory between the rivers Iberville and Perdido granted to the plaintiffs by the Spanish governor. The defendant alleged that by the treaty of Ildefonso, 1800, this territory was ceded by Spain to France, and in 1803, by France to the United States. And it was a question of the interpretation of the treaty of cession.

The court refused to go into the merits of the treaty, but considered itself bound by the decision of the political department of the government, whose province it was to deal with foreign relations.

Extract from the judgment, MARSHALL, C. J.:

“** * In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government.

“ There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.

declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state from the time they were enacted.”

New states may be recognized conditionally. By the 43d article of the treaty of Berlin, 1878, it is stipulated that the independence of Roumania shall be recognized by the high contracting parties “on the conditions laid down in the two following articles." These conditions are, first, that no person shall be deprived of civil or political rights by reason of his creed ; and, second, that Roumania shall restore to Russia certain territory detached from Russia by the treaty of Paris, 1856.

Servia was recognized upon a similar condition as to religious freedom. (Articles 34 and 35.)

“We think then, however individual judges might construe the treaty of St. Ildefonso, it is the province of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed. ***

“ After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its right of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of nations, is, as has been truly said, more a political than a legal question ; and in its discussion the courts of every country must respect the pronounced will of the legislature.” 1

HARCOURT v. GAILLARD.

SUPREME COURT OF THE UNITED STATES.

(12 Wheaton, 523.)

This was the case of a British grant of land within the limits of the old thirteen colonies, made during the Revolutionary war, in 1777.

Held that such grant was invalid, on the ground that the title to lands had already passed to the United States.

Extract from the opinion of the court :

“ But this is not the material fact in the case; it is this, that this limit was claimed and asserted by both of those states in the Declaration of Independence, and the right to it was established by the most solemn of all international acts, the treaty of peace. It has never been admitted by the United States, that they acquired any. thing by way of cession from Great Britain by that treaty. It has been viewed only as a recognition of pre-existing rights, and on that principle the soil and sovereignty, within their acknowledged limits, were as much theirs at the declaration of independence as at this

i To the same effect, see In re Cooper, 143 United States Reports, 472.

hour. By reference to the treaty, it will be found that it amounts to a simple recognition of the independence and the limits of the United States, without any language purporting a cession or relinquishment of right on the part of Great Britain. In the last article of the treaty of Ghent will be found a provision respecting grants of land made in the islands then in dispute between the two states, which affords an illustration of this doctrine. By that article, a stipulation is made in favor of grants before the war, but none for those which were made during the war. And such is unquestionably the law of nations. War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails can only derive validity from treaty stipulations."

OPINION OF THE ATTORNEY-GENERAL OF THE UNITED

STATES, 1856.

(8 Op. Att.-Gen. 175.)

When a river forms the boundary between two states.

SIR,—Your note of this date, communicating a clause in the draft of the proposed report of the commissioners for determining the boundary between the Mexican Republic and the United States, presents the following question of public law:

“ A portion of the boundary is formed by the Rio Bravo, which is subject to change its course in two ways: first, by gradual accretion of one of its banks, followed, in many cases, by corresponding degradation of the opposite bank; and, secondly, by the more violent action of the water, leaving its actual bed and forcing for itself a new one in another direction. In case of any such changes in the bed of the river, does the boundary line shift with them, or does that line remain constant where the main course of the river ran as represented by the maps accompanying the report of the commissioners ?

“ The response to this inquiry depends, in part, on the terms of the treaty between the two republics prescribing the boundary line, the material part of which, in so far as regards the present question, is to effect, that the line beginning in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande,' shall proceed thence up the middle of that river’ to a certain point. The treaty further provides that commissioners appointed by the two governments shall survey and mark out upon the land the stipulated line, which, as agreed upon and established by them, shall in all time be faithfully respected, without any variation therein, unless by express and free consent of both republics (Treaty of December 30, 1853, 10 Stat. at Large, p. 1032.)

“ If the question here were of certain other parts of the boundary which are to run on parallels of latitude or by straight line from point to point, in that case the monuments placed by the commissioners, or the line as otherwise fixed by descriptive words referring to natural objects, or by the drawings and maps of the commissioners, would, it is plain, be conclusive, in all time, by force of the stipulations of the treaty. It would be the line agreed upon and established, even although it should afterwards prove that, by reason of error of astronomical observations or of calculation, it varied from the parallel of latitude where that was the line, or in the other part did not make exactly a straight line. So, if, in another portion of the boundary, which calls for the rivers Gila and Colorado, there were controversy concerning the identity of either as upon the northeastern boundary of the United States, as there once was in regard to the true St. Croix, then, also, by force of the treaty, the determination of that point, by the commissioners, would be conclusive in all time. But the present question is a different one, and depends in part for its solution upon other considerations.

“In this case the boundary is not an astronomical or geographical line, but a natural object, defined by the treaty. And there is no equivocation here between two distinct natural objects, each of them answering to the descriptive language of a stipulation. It is the Rio Bravo, with a course as definite, and almost as destitute of tributaries and embranchments, in its main course, as the Nile. That is a fact which cannot be modified by surveys or reports.

“However, the established principles of public law come in here to settle the question in all its relations.

“The respective territories of the United States and of the Mexican Republic are arcifinious; that is to say, territories separated not by a mathematical line, but by natural objects of indeterminate natural extension which of themselves serve to keep off the public enemy. Such are mountains and rivers. (Barbeyrac's Grotius, liv. ii., chap. 3, § 16 and note; Coceii Grotius Illustratus, ibid.)

“When a river is the dividing limit of arcifinious territories, the natural changes to which itself is liable, or which its action may produce on the face of the country, give rise to various questions, according to the physical events which occur, and the previous relation of the river to the respective territories. The most simple of all the original conditions of the inquiry is where the river appertains by convention equally to both countries, their rights being on either side to the filum aquce, or middle of the channel of the stream. That is the present fact.

- With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other; that is, by the gradual and, as it were, insensible accession or abstraction of mere particles, the river as it runs continues to be the boundary. One country may, in process of time, lose a little of its territory, and the other gain a little, but the territorial relations cannot be reversed by such imperceptible mutations in the course of the river. The general aspect of things remains unchanged. And the convenience of allowing the river to retain its previous function, notwithstanding such insensible changes in its course, or in either of its banks, outweighs the inconveniences even to the injured party; it is a detriment, which, happening gradually, is inappreciable in the successive moments of its progression.

“But, on the other hand, if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation, through whose territory the river thus breaks its way, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary.”

SECTION 6.—THE EFFECT OF A CHANGE OF SOVEREIGNTY.

(a) Upon Public Rights and Obligations.

TEXAN BONDS.

(1 Wharton's Digest, 20–23.)

During the period of Texan independence, that State had issued bonds to the extent of many millions of dollars, secured by the revenues of the State; and in 1815, when Texas was annexed to the United States, her custom houses and the control over customs duties passed to the federal government. Some of these bonds were held in England; and an attempt was made before the claims commis

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