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Show ARKANSAS RIVER LITIGATION 489 which controls foreign and independent States in their relations to each other; that by the law of Nations the primary and absolute right of a State is self-preservation; that the improvement of her revenues, arts, agriculture and commerce are incontrovertible rights of sov- ereignty; that she has dominion over all things within her territory, including all bodies of water, standing or running, within her bound- ary lines; that the moral obligations of a State to observe the demands of comity cannot be made,the subject of controversy between States; and that only those controversies are justiciable in this court which, prior to the Union, would have been just cause for reprisal by the complaining State, and that, according to international law, reprisal can only be made when a positive wrong has been inflicted or rights strieti juris withheld. But when one of our States complains of the infliction of such wrong or the deprivation of such rights by another State, how shall the existence of cause of complaint be ascertained, and be accommo- dated if well founded? The States of this Union cannot make war upon each other. They cannot "grant letters of marque and reprisal." They cannot make reprisal on each other by embargo. They cannot enter upon diplomatic relations and make treaties. As Mr. Justice Baldwin remarked in Rhode Island v. Massachu- setts: "Bound hand and foot by the prohibitions of the Constitution, a complaining-State can neither treat, agree, nor fight with its adver- sary, without the consent of Congress; a resort to the judicial power is the only means left for legally adjusting, or persuading a State which has possession of disputed territory, to enter into an agreement or compact, relating to a controverted boundary. Few, if any, will be made, when it is left to the pleasure of the State in possession; but when it is known that some tribunal can decide on the right, it is most probable that controversies will be settled by compact." 12 Pet. 657,726. "War," said Mr. Justice Johnson, "is a suit prosecuted by the sword; and where the question to be decided is one of original claim to ter- ritory, grants of soil made jlagrante hello by the party that fails, can only derive validity from treaty stipulations." Harcowt v. Gail- lard, 12 iTOeat. 523,528. The publicists suggest as just causes of war, defence; recovery of one's own; and punishment of an enemy. But as between States of this Union, who can determine what would be a just cause of war? Comity demanded that navigable rivers should be free, and there- fore the freedom of the Mississippi, the Rhine, the Scheldt, the Danube, the St. Lawrence, the Amazon and other rivers has been at different times secured by treaty; but if a State of this Union deprives another State of its rights in a navigable stream, and Congress has not regulated the subject, as no treaty can be made between them, how is the matter to be adjusted % Appjlyin^ the principles settled in previous cases, we have no special difficulty with the bare question whether facts might not exist which would justify our interposition, while the manifest importance of the case and the necessity of the ascertainment of all the facts before 94-497-69 |
