tary of the Interior had directed the Commissioner of the General Land Office

"to suspend action on any and all applications for right of way through public lands for the purpose of irrigation by using the waters of the Rio Grande River or any of its tributaries in the State of Colorado or in the Territory of New Mexico until further instructed by this department.""

And the Secretary inquires of Colonel Mills, whether, in his opinion, this order for suspension should be maintained as to dams in the Pecos River. Then, the Secretary breaks off and proceeds on a new line, as follows:

"As an entirely distinct matter, I desire to know whether the Rio Grande River is a navigable water of the United States within the sense of the constitutional provision giving Congress the power to regulate commerce among the several States (Const., Article I, section 8, clause 3). I will briefly define a navigable river in this sense to aid you in making your report. It is a river which affords a channel for useful commerce. The commercial traffic need not necessarily be carried on in boats or vessels. Waters which are capable only of floating rafts or logs are public highways for that kind of commerce. The navigable condition need not be perennial, but it must recur regularly at stated seasons. A stream which can be used for commercial purposes on extraordinary occasions only is not navigable in this sense. It is not essential that waters in order to be navigable shall afford a continuous passage throughout the entire extent of the stream, but for the purpose in view there must be capacity to float commercial products from one State to another or between a State and a foreign country. The river must be an interstate or an international highway for commerce.

"The department is aware that the river is not navigable for large craft in the part under consideration; but if the stream in its natural condition be capable of use at certain periods of the year in transporting commercial products by boat or raft, it is a navigable water of the United States and subject to the laws which Congress has enacted or may enact for the regulation and protection of interstate and foreign commerce. It should be remembered, however, that mere capacity to float a log or a boat will not alone make a river navigable. The question is whether the river can be used profitably for the transportation of merchandise. I have been informed that wood is sometimes brought down the river to Ciudad Juarez in flatboats and that logs are rafted or floated down from the timbered lands on the upper river for commercial purposes.

"The department has no intention of putting upon you the task of deciding the legal question whether this river is navigable, but the

1 The Secretary of State to Col. Anson Mills, Commissioner, January 4, 1897. Appendix to the Answer, p. 281.

above brief expression of the legal requisites for a navigable river is given in order to guide you in your investigation and in the exposition of the facts which are desired. A description of the river in the particular under consideration, with special reference to its actual navigability, is what is wanted.""

This full and exact quotation from Secretary Olney's letter should be compared with the following passage from the British Memorial:

"In commenting on General Anson Mills' allegations that the Rio Grande is navigable both above and below El Paso, Texas, and that the carrying out of the said (original) Elephant Butte Dam Project would obstruct or impair' a navigable river of the United States." 2 President Cleveland's then Secretary of the Department of State, the Honorable Richard Olney, in a letter dated January 4, 1897, addressed to General Anson Mills, pointed out that:

"A navigable river is a river which offers a channel for useful commerce.'

666

'A stream which can be used for commercial purposes on extraordinary occasions only is not navigable in this sense."

666

'Mere capacity to float a log or a boat will not alone make a river navigable.' Sen. Doc. 229, 55th Cong., 2d session, pp. 18-19, Exhibit C." 2

In order to bring out clearly the true position of the fragments, printed in the British Memorial, in their original context, they have been printed in italics in the full quotation as given above.

It will be observed that the British Memorial not only picks out a sentence and parts of two other sentences, all disconnected, and throws them together without asterisks or context; but, more than this, the British Memorial says

"In commenting on General Mills' allegations that the Rio Grande is navigable * * * the Honorable Richard Olney *** pointed out," etc.3

So far as the Agent for the United States is informed or as the record shows, General Mills had up to that time made no "allegations" that the Rio Grande is navigable. So far as a careful search has revealed, the idea of questioning the right of the claimant company to impound the waters of the Rio Grande, upon the ground that its works would impair the navigability of the river, was here first suggested, ap

1 The Secretary of State to Col. Anson Mills, Commissioner, January 4, 1897. Appendix to the Answer, pp. 282-283. Italics ours.

2 British Memorial, pp. 13-14.

3 British Memorial, pp. 13-14.

parently by Secretary Olney himself.1 It is hardly necessary to point out that Secretary Olney was one of the foremost men at the American Bar, who had held the office of Attorney General before he became Secretary of State in President Cleveland's cabinet.

On January 5, the Mexican Minister answered Secretary Olney2 enclosing a copy of a draft convention for the equitable distribution of the waters of the Rio Grande. In arguing in defense of its provisions he stated that the loss of public wealth in Mexico in the last ten years, due to the diminution in the waters of the river, amounted to $35,685,000.

Two days later, Colonel Mills replied to the Secretary of State in a careful letter, in which he not only stated what he knew of his own. knowledge of the Rio Grande, but went into the history of navigation on the river, quoting from the reports of Major Emory, the first Boundary Commissioner, and other officers who had explored the river. Having given Secretary Olney the facts, so far as he knew them, either personally or on the authority of others, he concludes his letter as follows:

"While it is certain that a portion of the river, as before described, is or was a navigable stream in the broadest sense, your suggested question in the following language: 'As an entirely different matter I desire to know whether the Rio Grande river is a navigable water of the United States within the sense of the constitutional provision giving Congress the power to regulate commerce among the several states' (Const. article 1, sec. 8, clause 3) seems to embrace the entire river as a whole so far as it constitutes the international boundary; that is to say, from El Paso to the Gulf.

"I do not feel myself competent to express an opinion on this entire and broad subject that would have any material value. Having stated the facts so far as I am able within my knowledge I leave that question for others more skilled than I in the legal aspects of the

It appears, therefore, that instead of Secretary Olney having "commented" on General Mills' "allegations," as stated in the British

1 See also, Testimony of Gen. Anson Mills and Mr. J. H. McGowan, February 6, 1901, wherein General Mills testified: "After I made my report to Mr. Olney, Secretary of State, he called me to him and asked me many questions on the report, and told me that Mexico had refused to accept the international dam unless some restraint could be placed upon the use of water above, and I told him I thought Mexico was right in that matter. He then avowed his intention to bring an injunction suit against the Elephant Butte project, and he did so; Appendix to the Answer, p. 418.

2 The Mexican Minister to the Secretary of State, January 5, 1897. pendix to the Answer, p. 284.

Ap

3 Col. Anson Mills, Commissioner, to the Secretary of State, January 7, 1897. Appendix to the Answer, pp. 290-291.

Memorial,1 Secretary Olney asked General Mills a question and, in order to enable him to answer it intelligently, stated the law with respect to navigability, and that General Mills, in answering, was careful to confine himself scrupulously to a statement of facts.

Upon receiving General Mills' answer, Secretary Olney, on January 11 and January 13, took up the question of the navigability of the Rio Grande with the Secretary of the Interior2 and the Secretary of War, respectively.

In his letter to the Secretary of the Interior, Secretary Olney says:

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I have information which indicates that the Rio Grande River in some parts above the international boundary line is, and has been used as, a waterway for navigation between the United States and Mexico, and possibly between the State of Colorado and the Territory of New Mexico. If it be true that this stream in its natural condition is capable of use for the transportation of commerce between two States of the Union or between the United States and a foreign country, the river is a navigable water of the United States and as such subject to the laws of Congress enacted for the maintenance, protection, and preservation of the navigable waters of the United States. One of the principal matters of complaint by Mexico is that the diversion of the upper waters of the Rio Grande for irrigation purposes has affected the usefulness of that stream as a waterway for commerce.

"The Attorney General, in his opinion of December 12, 1895 (21 Op. 274), held that the river was not navigable above the boundary in the sense of the treaty between the United States and Mexico, but the question here is whether it is navigable within the meaning of the laws of the United States. The conditions of navigability within the meaning of our statutes are well defined in the decisions of the Federal courts. Many of these are referred to in 20 Op. Att. Gen. 101.'*

In his letter to the Secretary of War, Secretary Olney refers to the statutes under which the Secretary of the Interior acts in approving rights of way; points out that the Secretary of the Interior had ruled that he was without power to cancel, as an administrative measure, a right of way once approved, and calls attention to the Act of July 13, 1892, requiring the permission of the Secretary of War for the construction of dams and other obstructions in navigable waters of the United States. Secretary Olney proceeds:

1 British Memorial, pp. 13-14.

2 The Secretary of State to the Secretary of the Interior, January 11, 1897. Appendix to the Answer, pp. 292-294.

3 The Secretary of State to the Secretary of War, January 13, 1897. Appendix to the Answer, pp. 295-298.

4 The Secretary of State to the Secretary of the Interior, January 11, 1897. Appendix to the Answer, p. 293.

"As the proposed erection of this dam across the Rio Grande at Elephant Butte has given rise to an important and perplexing international question, I have the honor to inquire whether the parties engaged in this enterprise or others whose rights they enjoy have obtained from you as Secretary of War the permission required by the act first above quoted. If your permission has not been obtained for the placing of this obstruction across the Rio Grande River, I have the honor to request that you will ascertain whether the river in the parts which will be affected by the dam and the diminution of the volume of water consequent upon its erection is not a navigable water of the United States within the meaning of the statutes above quoted, so as to make your sanction a necessary prerequisite to the lawful erection of the dam. I have received information tending to show that the Rio Grande River is navigable for commercial purposes between the United States and Mexico, and possibly between the State of Colorado and the Territory of New Mexico. It probably will not float water craft of great size, but I understand that it has been used in the timber commerce of the country and is in its natural state capable of regular periodical, if not perennial, use as a waterway for commercial traffic between the two States of the Union or between the United States and a foreign country. If that be true, the river is a navigable stream of the United States within the meaning of the laws for the protection of such waters."'1

Secretary Olney's letter was referred by the Secretary of War, in the customary way, for the opinion of officers having technical knowledge and information in regard to the subject-matter of the communication. Their opinons are set forth in full in the Appendix to the Answer of the United States. General Mills was consulted, among other officers, and in his endorsement on the letter of the Secretary of State he makes the following pertinent suggestion:

"Whatever may be said of the navigability of the Rio Grande at the point where the dam is proposed to be constructed (Elephant Butte), there can be no question as to its navigability for many hundred miles upward from its mouth, and notwithstanding the fact that its usefulness in this respect has already been much impaired there and throughout its length by similar diversions of its waters above, in Colorado and New Mexico, the people of the Territory of New Mexico, the State of Texas, and the citizens of the Republic of Mexico still enjoy this navigation, which will be still further impaired by the diversion of the waters as proposed.

"I submit, therefore, whether this case is not so unique as to require, under the spirit of the law, a different and broader consideration, namely, as a river entire from the location of the proposed dam

1 The Secretary of State to the Secretary of War, January 13, 1897. Appendix to the Answer, p. 297.

2 See endorsements on the letter from the Secretary of State to the Secretary of War. Appendix to the Answer, pp. 298-307.