It is unthinkable that 60,000 people living under the Stars and Stripes, together with $100,000,000 worth of American property, should be left absolutely dependent upon what happens in a foreign country, when that country is one where anything may happen at any time. Yet the entire community of Imperial Valley is dependent upon so slender a thread as the friendship and good will of Mexico. If anything happened south of the line to cut off our supply of water, people could not live 10 days in Imperial Valley, and hundreds of thousand of head of live stock would perish through inability to get them out of Imperial Valley, and the valuation of $100,000,000 would shrivel and shrink to almost nothing. Yet 60 miles of main canals and works lie wholly in Mexico. Its banks can be cut, the structures can be destroyed and the water can be diverted. One can easily imagine what might happen to Imperial Valley if, unhappily, unforeseen conflict should arise between the two nations. Imperial Valley could receive serious injury in a fight between two factions. Several battles have been fought right over the territory through which our canal traverses. I, myself, witnessed one from the top of a building, and they did a good deal of damage, killed quite a few people in that battle. If one faction thought it to its advantage, being outside of Mexicali, to shut the other faction off from water they would not hesitate to do it, and the Imperial Valley would suffer from the consequences. The United States should not leave 60,000 people who are entitled to its protection to such a fate. So long as Imperial Valley is compelled to get its water by means of the present arrangement Mexican lands have the right to take one-half and the physical power to take all the water. It is estimated that there are between 700,000 and 800,000 acres in Mexico which could be irrigated by connecting with our systems. Much of this land is held in immense tracts by rich and powerful corporations who could and probably would. if conditions were stable in Mexico, in a comparatively short time put most of it into cultivation by the use of cheap Chinese and Japanese labor. Several thousands of these have already been imported for that very purpose. It is very productive, it will grow great crops, and with cheap labor and cheaper water there is nothing to prevent them from going ahead as far as their resources will permit them.

Mr. SMITH. Are these lands in Mexico farmed in great bodies? Mr. SWING. Yes, sir.

Mr. SMITH. Are they sold out to individuals, or are they held intact?

Mr. SWING. They are leased out. These early corporations bought them at 25 cents an acre. Their lease last year on the land that was in cultivation was $10 an acre. So you see they have made back capital investment many times over. Its natural fertility is great. Mr. EVANS. In what way is the United States liable or bound to respect that agreement?

Mr. SWING. Not at all, not in any way. The United States have intentionally avoided having anything to do with it.

Mr. TAYLOR. Can you give any official confirmation of that statement?

Mr. EVANS. I thought we were to have copies of those agreements. Mr. SWING. I will file a copy of the agreement. From my discussion with the Interior Department, the Department of Justice,

and the Department of State, I formed the conclusion that our Government was under no obligation to Mexico on the water matter. (Agreement found in appendix as Exhibit E.)

Mr. TAYLOR. Would those three departments be disposed to request this committee to go on record and that Congress make a detailed disclaimer or statement as to any possibilities of that kind?

Mr. SWING. In 1901, when the California Development Co. began diverting water in the United States north of the boundary line, the Mexican ambassador, under date of November 27 of that year, wrote 4 protest to our Secretary of State complaining of the operations of this company-the California Development Co., which made the original appropriation and diversion for Imperial Valley-as being in contravention of the treaty between the United States and Mexico of 1848, commonly known as the treaty of Guadalupe Hidalgo, and Article IV of the subsequent treaty of 1853, commonly known as the Gadsden treaty. This protest was referred to the Department of Justice for investigation and report, and after very full and exhaustive investigations and study a report and opinion, known as the Burch opinion, was made to the Department of State, to the effect that the diversion of the water of the Colorado River by this company, being accomplished wholly within the United States, was not in conflict with the provisions of any of the treaties. Under the protection of this ruling of our Government, 400,000 acres in Imperial Valley, Calif., have been reclaimed and made the home of some 60,000 American citizens.

Mr. HAYDEN. What was the opinion by Judson Harmon to which you referred?

Mr. SWING. That was with reference to the international law relating to the Rio Grande, relating to the obligation of the United States to deliver water to lands below El Paso, in Mexico, which lands had used the water for a long period of time.

Mr. HAYDEN. Are you going to put that opinion in the record? (It is made a part of this statement and annexed as Exhibit C.) Mr. SWING. Yes. While I am on this question I want to add that the Mexican Government apparently has acquiesced in this interpretation of the treaties and no longer claims any right to object to diversions made within the United States. The report of Engineer Emeterio de la Garza, jr., on the Colorado River, made to the Mexican Minister Fomento, September 23, 1912, contains the following:

Every taking of water in the American territory diminishes the property which the nation has in the part of the river which traverses Mexican territory, and, consequently, causes an injury to the nation.

The Republic, however, can not prevent the waters from being taken in American territory, but has a perfect right to prevent the waters taken in American territory from being carried across the Mexican territory; thence, if waters have been taken decreasing the volume of the river to the prejudice of the nation, the nation has the right to close the door to the entrance of these waters into Mexican territory, because it does not have to lend itself to that which may injure it or result to its prejudice. [Italics mine.]

Mexico here claims exclusive territorial sovereignty, and that is the very statement that Judson Harmon used in support of our right to use the water, that so long as the water is in the United States we have absolute and supreme control and jurisdiction over it, and can make any disposition of it that we desire, and to say otherwise is to concede that the United States is not sovereign down to its

boundary line. What can be done in Colorado and Arizona can be done in the State of California. What difference does it make how far inside the United States you are, as to the operation of the law? If a thousand miles from the boundary line you can divert water from the Colorado River, 1 foot from the boundary line you can do the same thing, if American laws are equal.

As to the question of international law, as long as we are on this question, I will briefly read from a summary I prepared on this subject.

INTERNATIONAL LAW LAYS NO OBLIGATION UPON THE UNITED STATES TO FURNISH MEXICO WITH WATER.

The right of American citizens within the jurisdiction of the United States to appropriate and use American waters in accordance with the laws of the United States for the reclamation and improvement of American lands seems to follow is a necessary corollary from the sovereignty of our Nation over its own territory.

Chief Justice Marshall, in Schooner v. McFadden (7 Cranch, page 136), said:

"The jurisdiction of the Nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power, which could impose such restriction.

"All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source."

Attorney General Judson Harmon, in an exhaustive and conclusive opinion (21 Official Opinions, 274), holds there is no obligation imposed upon the United States by international law to restrain its citizens from making a beneficial use of American waters so long as said waters are within the United States. He held:

"The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entrely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States.

"The fact that there is not enough water in the Rio Grande for the use of inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied, entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain."

This view of international law has never been doubted or criticized by any American authority, and even the Mexicans recognize the force of it, and invoke this same doctrine of exclusive territorial sovereignty in ther own behalf. As we have seen, Engineer Garza quotes with approval the opinion of Emilio Valazco:

"The Republic (of Mexico), however, can not prevent the waters from being taken in American territory, but has a perfect right to prevent the waters taken in American territory from being carried across the Mexican territory, etc."

Indeed, it would be a curious application of the principle of international law or the comity of nations or the doctrine of natural rights to deprive our own citizens of the means of life that it might be bestowed upon the citizens of another country. No authorty has been found that holds that the proprietary country may not make use of the stream within its own territory that was necessary to maintain the comfort or life of its inhabitants. If this be not true, then the lower country would have control of the lives and property of the upper country. The fundamental principle of international law is absolute sovereignty of every nation against all others. If then our treaties with

Mexico put us under no obligation to furnish it with water, which is gathered wholly on our own soil, for its use either for navigation or agriculture, certainly no law of nations or law of right calls upon us for such a sacrifice. Humanity, common sense, self-preservation, all cry out against it.

Gentlemen, even if we wanted to continue to deliver the waters of the Colorado River into the control of Mexico, our Government, as a matter of public policy and in defense of its own interests, should insist on putting a stop to it.

Mr. HAYDEN. What was done with respect to the division of the waters of the Rio Grande between the United States and Mexico? Mr. SWING. In 1906, in a treaty which is denounced in remarkable terms by Senator Thomas, of Colorado

Mr. TAYLOR. And by every other citizen of Colorado, I think. I know it was by me.

Mr. SWING. In that treaty the United States obligated itself to furnish to Mexico 60,000 acre-feet of water a year, and Congress was asked to appropriate $1,000,000 to make good this treaty, and together with the $9,000,000 furnished by the Reclamation Service with which they built the Elephant Butte Dam to supply 25,000 acres in Mexico. The treaty absolutely provides that it is not to be held, deemed, or construed as a precedent for any future cases, and I am told the people who negotiated it had the Colorado River in mind in making this reservation.

Mr. SMITH. Those cases are not analogous, because the Rio Grande River is the boundary line, and in this case the water is all taken out within the boundaries of the United States.

Mr. SWING. In the Rio Grande case it was proposed to take the water out inside the United States. One of the contentions that was made was that they had used the water 300 years in Mexico, long before it had been used in the United States. Senator Thomas made a speech on this subject, a very powerful speech, and almost every word of it applies to the situation on the Colorado River. In fact, in his concluding remarks he predicts that this situation would confront the Colorado River, which prediction was fulfilled. The speech was made on March 23 and 24, 1914, pages 5984 to 6006 of the Congressional Record. He winds up with this statement:

If the Government can take the waters of our State for a project like this, then it can enter into similar relations with Mexico concerning the peninsula of Lower California with reference to the waters of the Colorado River, and lay a like inhibition upon the States where the sources of that great river are found. He quotes the opinion of Judson Harmon, and with your permission I will file the speech, because it contains Judson Harmon's opinion. (Opinion Attorney General Harmon found in appendix as "J.")

Mr. SINNOT. Is that on the theory that the water belongs to the States?

Mr. SWING. No, sir; it is largely on the question of international law-that as long as the water is in the United States we can make any legitimate use of it we see fit.

Mr. EVANS. Suppose, owing to the diversion of water, those dams would break and there would be considerable damage to that territory; is there not a possibility of Mexico setting up a claim for damages against the United States upon the ground of the diversion and use of the Colorado River having caused damage from flooding Mexican soil?

Mr. SWING. If the dam should break on the American side? Mr. EVANS. No; say, on the Mexican side. Owing to the fact that we are in agreement with them in some way, could they set up a claim?

Mr. SWING. It is just the opposite. Eigthy thousand dollars' worth of claims are filed with our Secretary of State against Mexico because of the break that did occur in 1905-6, which was the result of the action of the Mexican corporation in making an open cut to the Colorado River with the consent of the Mexican Government.

Mr. EVANS. It opens up a line of thought as to cases in which enormous damages might be claimed.

Mr. SWING. Mexico is liable to United States citizens because a Mexican corporation has maintained that dam and they have it under Mexican control. Mexico absolutely declares that Americans can not control that water on their side of the boundary, and that only a Mexican corporation can do that.

Mr. TAYLOR. That would be a matter for the league of nations to decide. [Laughter.]

Mr. SWING. I will refer to these two propositions just for a minute. I will say that before this bill was introduced I had a talk with Ambassador Fletcher. I explained our situation, and that we proposed to introduce a bill along the line of this one, and I said, "Now, will that embarrass you in your relation to Mexico in any way? and we talked the thing over, and he said, "Go ahead with it; introduce it; we do not offer any objection." I prepared this brief on our international relationship, from which I have taken extracts, and took it around and filed it with the Department of Justice, Mr. Caldwell being the particular man to whom I was referred, and he read it over and he agreed with my conclusion.

In our treaties with Mexico the United States reserves to its citizens and the vessels of its citizens the free navigation of the Gulf of California and the Colorado River. Nothing was said about the citizens of Mexico or the vessels of citizens of Mexico. In fact, there were none there. There has never been a vessel in there that ever flew the Mexican flag; the navigation referred to is American. I got this out of Judge Burch's report, the kind of navigation that did go on there before the quantity of water was reduced by irrigation activities was the sort which consisted of tying a rope to a tree and using a pulley to drag themselves over a sand bar, and so in that sort of fashion navigating the Colorado River.

This first treaty, which is sometimes referred to as applying to the Colorado River, contains the following, in Article VII:

The River Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico being, agreeable to the fifth article, divided in the middle between the two Republics, navigation of the Gila and of the Bravo below the said boundaries shall be free and common to the vessels and citizens of both countries.

Notice what rivers they are-the Gila and the Rio Bravo del Norte. Mr. SINNOT. What is the Gila?

Mr. SWING. It is a branch of the Colorado, which for a time was the boundary line, until the Gadsden Purchase. It says those two rivers shall be free to the citizens of both countries [reading]:

And neither shall, without the consent of the other, construct any works that may impede or interrupt, in whole or in part, the exercise of this right;