Page:Harvard Law Review Volume 8.djvu/161

POWER TO DIVERT AN INTERSTATE RIVER. 145 "upon strict law, " says that it is a harsh exercise of "an extreme and hard law ; " and he expresses a hope " that this sttmmitmjus, which in this case approaches to summa injuria, may be voluntarily abandoned by his country. " ^ With the settlement of this mooted point we are not now directly concerned. But if the right to exclude in such a case has been seriously questioned, and has been made the subject of prolonged diplomatic controversy, what will be the fate of the far more radical claim set up in the present case ? Can it find support from the doctrines of international law .-' The present contention goes far beyond a denial of New Hampshire's right to navigate, in Massa^ chtisetts, a river flowing through both States. Massachusetts, instead of merely denying New Hampshire's right to use, in Massachusetts, that part of the river which naturally flows through Massachusetts, is, in effect, denying New Hampshire's right to use, in New Hampshire, that part of the river which naturally flows through New Hampshire, Massachusetts, instead of saying to New Hampshire, " You shall not hereafter use, in Massachusetts, that part of the common river which flows through Massachu- setts, " makes a far more startling declaration. Massachusetts says to New Hampshire, " You shall not hereafter have the use of the river, even within your own borders, for Massachusetts denies your right to have any part of the river flow through New Hamp- shire. " Can it be doubted that, as between two nations wholly foreign to each other, such a claim, if persisted in, would be cause for war 1 Even if, then, Massachusetts occupied the position of an inde- pendent nation, she would have no right to authorize the doing of this act ; although, in the event of her wrongdoing, their might be a difficulty in finding an effective remedy in a court of justice. But Massachusetts does not stand to New Hampshire in the rela- tion of one independent nation to another. On the contrary, Massachusetts is a part of the same nation with New Hampshire. They are sister States ; each being protected against the aggres- sions of the other by the Federal Constitution ; and the citizens of each having a remedy in the Federal Courts against the citizens of the other who commit injuries under the attempted, but invalid, sanction of their State. 1 See Pomeroy, International Law,§§ 131-138 ( quoting i Phillimore,Int. Law,i85). Compare i Kent's Com. 35, 36.