nuisance give the general result in a very simple way. At the outset we cannot but be struck by the consideration that if this suit had been brought fifty years ago it almost necessarily would have failed. There is no pretense that there is a nuisance of the simple No per- kind that was known to the older common law. There is nothing which can be ceptible detected by the unassisted senses-no visible increase of filth, no new smell. On the is proved. contrary, it is proved that the great volume of pure water from Lake Michigan which is mixed with the sewage at the start has improved the Illinois River in these respects to a noticeable extent. Formerly it was sluggish and ill smelling. Now it is a comparatively clear stream to which edible fish have returned. Its water is drunk by the fishermen, it is said, without evil results. The plaintiff's case depends upon an inference of the unseen. It draws the inference from two propositions. First, that typhoid fever has increased considerably since the change, and that other explanations have been disproved, and second, that the bacillus of typhoid can and does survive the journey and reach the intake of St. Louis in the Mississippi.1 No clear to be drawn In the proof submitted by the State of Missouri, an increase in the death-rate from typhoid fever in St. Louis is alleged. A slight increase is admitted by the defendant, which maintains that the increase is due to causes other than those for which it is responsible. No case of an epidemic caused by infection at so remote a source on these facts was brought forward and the cases produced were controverted. On this phase of the case Mr. Justice Holmes uses language peculiarly susceptible of an international application, saying: The plaintiff obviously must be cautious upon this point, for if this suit should succeed many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the States lower down upon the Mississippi.2 The court was in a position to test this phase of the case, because it had statistics before the opening of the canal in 1900 and the hearing of this case four years later, and, assuming that the increase was real, Mr. Justice Holmes, speaking for the court, was able to say: Nevertheless, comparing the last four years with the earlier ones, it is obvious inference that the ground for a specific inference is very narrow, if we stop at this point. The plaintiff argues that the increase must be due to Chicago, since there is nothing corresponding to it in the watersheds of the Missouri or Mississippi. On the other hand, the increased defendant points out that there has been no such enhanced rate of typhoid on the typhoid, banks of the Illinois as would have been found if the opening of the drainage canal were the true cause.3 from A great deal of testimony was taken as to the survival of the typhoid bacillus on the voyage from Chicago to the Mississippi and the possibility of its detection. Counsel for both sides agreed that the detection in the water was not to be expected, and on this phase of the question Mr. Justice Holmes stated: It seems to be conceded that the purification of the Illinois by the large dilution from Lake Michigan (nine parts or more in ten) would increase the danger, as it now generally is believed that the bacteria of decay, the saprophytes, which flourish in stagnant pools, destroy the pathogenic germs. Of course the addition of so much water to the Illinois also increases its speed.4 It is a proverb that one story is good until another is told, and the tale of Illinois is quickly told by the learned Justice: On the other hand, the defendant's evidence shows a reduction in the chemical State of Missouri v. State of Illinois (200 U.S. 496, 522-3). Ibid. (200 U.S. 496, 525). and bacterial accompaniments of pollution in a given quantity of water, which would be natural in view of the mixture of nine parts to one from Lake Michigan. It affirms that the Illinois is better or no worse at its mouth than it was before, and makes it at least uncertain how much of the present pollution is due to Chicago and how much to sources further down, not complained of in the bill. . . . The defendants' experts maintained that the water of the Missouri is worse than that of the Illinois, while it Missouri also polcontributes a much large proportion to the intake. The evidence is very strong that lutes the it is necessary for St. Louis to take preventive measures by filtration or otherwise, stream. against the dangers of the plaintiff's own creation or from other sources than Illinois. What will protect against one will protect against another. The presence of causes, of infection from the plaintiff's action makes the case weaker in principle as well as harder to prove than one in which all came from a single source.1 So much for the contentions of the plaintiff, met and denied by the defendant, which might be set forth at much greater length without affecting the result and the reasons upon which the court thus delivered its opinion, per Mr. Justice Holmes, on the entire controversy then before it : Bill dis missed without We might go more into detail, but we believe that we have said enough to explain our point of view and our opinion of the evidence as it stands. What the future may develop, of course, we cannot tell. But our conclusion upon the present evidence is that the case proved falls so far below the allegations of the bill that it is not brought prejudice. within the principles heretofore established in the cause.2 56. State of Louisiana v. State of Mississippi. It is often said that only cases are submitted to arbitration which would not produce war and that only cases of the same kind would be submitted to an international court of justice. It is difficult to meet this statement, because, when a Public dispute has been settled by a mixed commission or decided by a court of justice, it opinion. is impossible to say that it would have been the cause of war if not adjusted or adjudged. We know, however, that courts of justice have been a most potent force in keeping disputants from one another's throats, that litigation and contest of wit and ingenuity in the court room have, in the vast majority of cases, replaced the resort to fisticuffs and to combats with more dangerous weapons. Indeed, we are so accustomed to the appeal to the court and the settlement of disputes by judicial process that we forget the alternative in the success of the expedient, which at most leaves a sense of disappointment, perhaps of bitterness, in the mind of the defeated party but which does not disturb the peace and harmony of the community. Public opinion persuades the disputants to go to court, public opinion insists upon observance of the judgement; for if public opinion did not do one or the other an angry litigant might relapse into barbarism and take the law into his own hands, and if public opinion did not support the marshal or the sheriff, the judgement of the court, if not voluntarily complied with, could not be executed. We live and die in an atmosphere of public opinion, and we are its slaves, not its masters. The case of Louisiana v. Mississippi (202 U.S. 1), decided in 1906, is an illustration of the wisdom of the Revolutionary statesmen who drafted the Constitution, State of Missouri v. State of Illinois (200 U.S. 496, 525-6). State of Missouri v. State of Illinois (200 U.S. 496, 526). For the final phase of this case see State of Missouri v. State of Illinois (202 U.S. 598), post, p. 425. oyster beds. providing for a court of the States, and of the citizens of the States in convention assembled, who ratified that instrument, including the provisions concerning the court of the States and its jurisdiction. A dispute In the waters adjoining the States of Louisiana and of Mississippi there are oyster as to jurisdic- beds, and, as is the wont of fishermen, they plied their calling and sought their catch tion over wherever they found it, without worrying over questions of jurisdiction or stopping to inquire whether a particular oyster was in Louisiana or in Mississippi, provided it was in their catch. The people of the State, however, took a narrower view of the matter, and Louisiana passed laws against fishing in its waters, and Mississippi took like action. As the laws were not observed, the State of Mississippi, in 1902, authorized a system of patrol of the oyster waters alleged to be within its jurisdiction and the maintenance of patrol boats to sustain the oyster laws in its territory. In the same year Louisiana followed the example of Mississippi, and authorized the establishment of patrol boats and the maintenance of an armed patrol on the Louisiana waters, to protect its rights in the oyster beds. Danger of armed conflict. Matters had come to an extreme point. Bodies of armed men were likely to come into collision, but, fortunately, between them stood the Supreme Court to stay their hands. As Mr. Chief Justice Fuller, in delivering the unanimous opinion of the court, said: In view of the danger of an armed conflict, the oyster commissions of both States, in September, 1902, adopted a joint resolution establishing a neutral territory between the two States, pending the final decision by the Supreme Court of the United States in the boundary suit to be instituted, to remain a common fishing ground.1 Whereupon the State of Louisiana, by leave of the court, filed its bill against the State of Mississippi on October 27, 1902, to establish, in a judicial proceeding, instead of an armed conflict, the boundary between the two States in controversy. The dispute, it will be observed, was one of jurisdiction, but the rightfulness of its exercise depended upon the boundaries of the two States, inasmuch as the jurisdiction of one State ended where the other began and the laws of neither could have extra-territorial effect. Were it not for the prolongation of the boundary of each State beyond the limit of its territory, and the claim to exercise jurisdiction within adjacent waters, the case would be one of an ordinary boundary dispute, in which the jurisdiction of the court was so well settled as not to be open to question, turning upon an interpretation of the treaties in point and the acts of Congress creating the territories and binding the States upon their admission to this Union of States. There is, however, a principle of law involved, not municipal but international, which gives the case an interest which it would not possess and justifies a fullness of presentation otherwise out of place. Before referring, however, to these matters, it is proper to premise that to the bill of Louisiana, setting forth the facts involving the boundary dispute, and asking that it be determined and decreed in accordance with its contentions, the State of Mississippi, by leave of the court, filed a demurrer, which, by stipulation of the jurisdic- parties, was submitted for consideration on printed arguments. The demurrer was ruled. overruled, the Court holding that a justiciable controversy was made out by the Demurrer to the tion over State of Louisiana v. State of Mississippi (202 U.S. 1, 35). bill in the sense in which that term was understood and construed by the court in a series of adjudged cases. Leave was, however, given to Mississippi to answer as defendant and to file a cross-bill as plaintiff in the case, setting forth the facts involved in the dispute as it saw them, and praying that the boundary between the two States be determined and decreed in accordance with its contentions. To the answer Louisiana filed a replication and to the cross-bill an answer denying in substance its allegations. Upon this state of the pleadings, the case came before the court for argument and decision, and after argument it was decided, it may be said in this place, in accordance with the contentions of the State of Louisiana. of the The vast stretch of territory to the west of the Mississippi River, of which the History State of Louisiana formed but an insignificant part, was purchased by the United bounStates from France in 1803 for the trifling sum of $11,250,000. The eastern boundary daries. of the State was well known and recognized by the countries owning the territory at various times and by its neighbours. Upon its admission as a State that eastern boundary was enlarged by Congress. Some knowledge of the treaties relating to that portion of Louisiana adjoining the mouth of the Mississippi and the Gulf of Mexico, and of the acts of Congress concerning the boundaries of the territory and the State is necessary to a correct understanding of the case and the decree of the Court in favour of the contentions of Louisiana that the approach to the boundaries between the two States was the body of deep water known as the Mississippi Sound, and that the boundary line separating Louisiana from territory further east and to the north of the Sound from that part of Louisiana to the south thereof should be marked by a line drawn through its mid-channel, as in the case of rivers separating adjoining States. In the treaty of peace of February 10, 1716, between Great Britain, France, Treaty of and Spain, Article 7 thus dealt with the boundary line between the dominions of 1716. Great Britain and France in the New World: That for the future the confines between the dominions of His Britannic Majesty and those of His Most Christian Majesty in that part of the world shall be fixed irrevocably by a line drawn along the river Mississippi from its source to the river Iberville, and from thence by a line drawn along the middle of this river and the Lakes Maurepas and Pontchartrain to the sea. The line from the latter lake passes through the strait known as the Rigolets, continued through the northern part of Lake Borgne at the point where the Pearl River empties into it, and thence into the Mississippi Sound in order to reach the Gulf of Mexico eastwardly through the Mississippi Sound; or, turning to the south, through the deep channel and highway of commerce between Cat Island on the north and east, admittedly belonging to Mississippi, and Isle à Pitre and the Chandeleur Islands, claimed and recognized as belonging to Louisiana. It should be mentioned. in this connexion that, according to this treaty, England retained the port of Mobile and its river and everything east of the Rigolets. The Island of Orleans, formed by the river Iberville, Lakes Maurepas and Pontchartrain, the Rigolets, the Gulf of Mexico and the Mississippi river, remained the property of France.1 Mr. Chief Justice Fuller in State of Louisiana v. State of Mississippi (202 U.S. 1, 42). Therefore, a part of the waters of Lake Borgne and the Sound at that time separated the territory of Louisiana, then belonging to France, on the south, from the territory Treaty of of another power on the north. In the treaty of February 10, 1763, between Great 1763. Britain, France, and Spain, Article 7 provides that: Cession of Louisiana to Spain, 1763. Retro France, I 800. The boundary between the dominions of Great Britain and France on the continent of North America shall be irrevocably fixed by a line drawn along the middle of the river Mississippi from its source as far as the river Iberville; thence by a line drawn along the middle of this river and of the lakes Maurepas and Pontchartrain to the sea; and to this purpose the Most Christian King cedes in full right and guarantees to His Britannic Majesty the river and port of Mobile and everything which he possesses on the left side of the river Mississippi, except the town of New Orleans and the island on which it is situated, which shall remain to France. It is important to note, in this connexion, that, by the secret treaty of August 15, 1761, between France and Spain, known as the family compact, the kings of those two countries formed an offensive and defensive alliance, the fundamental principle of which was that an attack upon one was an attack upon the other. They pledged themselves to regard the two countries as one and to act as if they were one, and each was to compensate the other for losses which might be incurred by their war in common against Great Britain and its allies. In pursuance of this family compact and secret agreement, France and Spain concluded the treaty of November 3, 1762, to carry its provisions into effect, by the terms of which Louisiana, including New Orleans, was ceded to Spain. The consequence was that Spain thus obtained possession of Louisiana and the island of New Orleans as defined by the 6th article of the treaty of February 10, 1763. When Napoleon Buonaparte became First Consul and undisputed master of France, he looked to the New World to redress the balance of the Old, as Canning would have phrased it, and by Article 3 of the treaty of St. Ildefonso of October 1, 1800, between the French Republic and the Kingdom of Spain: H.C.M. promises and engages on his part to recede to the French Republick cession to six months after the full and entire execution of the conditions and stipulations herein expressed, relative to H.R.H. the Duke of Parma, the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and had while in the possession of France, and such as it ought to be in conformity with the treaties subsequently concluded between Spain and other states.1 Cession 1803. By the treaty of March 30, 1803, the French Republic ceded to the United States the territory of Louisiana agreed to be receded by Spain to France in accordance with the third article of the treaty of St. Ildefonso, which article is incorporated as Article I of the treaty between the two Republics. It is to be observed that Louisiana was not ceded but receded by Spain to France, and that therefore the eastern boundary was the boundary of the treaty of 1763, with the right of approach through the Mississippi Sound dividing the eastern portion of the Island of Orleans on the south, known as the Parish of St. Bernard, from the territory to the north and east of the Pearl River. It should be said, however, before leaving the treaty of 1803, ceding Louisiana to the United States, that not only the mainland passed but also the islands fringing the Louisiana coast and to 1 Malloy, Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers, vol. i, p. 506. |