Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Mr. Seward to Mr. Romero
Sir: I have the honor to acknowledge the receipt of your note of the 9th ultimo, containing a copy of a communication addressed to you by Mr. de Tejada relative to the change of the channel of the Rio Grande on the boundary between Mexico and the United States.
In reply I have the honor to state that the views of this government on the subject complained of are expressed in the opinion given on November 11th, 1856, by the then Attorney General of the United States, a copy of which is herewith transmitted.
I avail myself of this occasion to renew to you the assurances of my most distinguished consideration.
Señor Don M. Romero, &c., &c., &c.
Mr. Cushing to Mr. McClelland
Sir: Your note of this date, communicating a clause in the draught of the proposed report of the commissioners for determining the boundary between the Mexican republic and the United States, presents the following question of public law: A portion of the boundary is formed by the Rio Bravo, which is subject to change its course in two ways: first, by gradual accretion of one of its banks, followed, in many cases, by correspondent degradation of the opposite bank; and secondly, by the more violent action of the water, leaving its actual bed and forcing for itself a new one in another direction. In case of any such changes in the bed of the river, does the boundary line shift with them, or does that line remain constant where the main course of the river ran as represented by the maps accompanying the report of the commissioners ?
The response to this inquiry depends, in part, on the terms of the treaty between the two republics, prescribing the boundary line, the material part of which, in so far as regards the present question, is to the effect that the line “beginning in the gulf of Mexico, three leagues from land opposite the mouth of the Rio Grande,” shall proceed thence “up the middle of that river” to a certain point. The treaty further provides that commissioners appointed by the two governments shall survey and mark out upon the land the stipulated line, which, as agreed upon and established by them, shall in all time be faithfully respected, without any variation therein, unless by express and free consent of both republics. (Treaty of December 30, 1853, 10 Stat, at Large, p. 1032.)
If the question here were of certain other parts of the boundary which are to run on parallels of latitude or by straight line from point to point, in that case the monuments placed by the commissioners, or the line as otherwise fixed by descriptive words referring to natural objects, or by the drawings and maps of the commissioners, would, it is plain, be conclusive in all time by force of the stipulations of the treaty. It would be the line agreed upon and established, even although it should afterwards prove that by reason of error of astronomical observations or of calculation it varied from the parallel of latitude where that was the line, or in the other part did not make exactly a straight line. So if, in another portion of the boundary which calls for the rivers Gila and Colorado, there were controversy concerning the identity of either, as upon the northeastern boundary of the United States there once was in regard to the true St. Croix, then also, by force of the treaty, the determination of that point by the commissioners would be conclusive in all time.
But the present question is a different one, and depends in part for its solution upon other considerations.
In this case the boundary is not an astronomical or geographical line, but a natural object, defined by the treaty. And there is no equivocation here between two distinct natural objects, each of them answering to the descriptive language of a stipulation. It is the Rio Bravo, with a course as definite and almost as destitute of tributaries and embranchments in its main course as the Nile. That is a fact which cannot be modified by surveys or reports.
However, the established principles of public law come in here to settle the question in all its relations.
The respective territories of the United States and of the Mexican republic are arcifmious— that is to say, territories separated not by a mathematical line, but by natural objects of indeterminate natural extension, which of themselves serve to keep off the public enemy. Such are mountains and rivers. (Barbeyrac’s Grotius, liv. ii, chap. 3, s. 16, and note; Coccéi Grotius, illustratus ibid.)
When a river is the dividing limit of arcifmious territories, the natural changes to which itself is liable, or which its action may produce on the face of the country, give rise to various questions, according to the physical events which occur, and the previous relation of the river to the respective territories.
The most simple of all the original conditions of the inquiry is where the river appertains by convention equally to both countries, their rights being on either side to the filum aquæ, or middle of the channel of the stream. That is the present fact. With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other—that is, by the gradual, and, as it were, insensible accession or abstraction of mere particles—the river, as it runs, continues to be the boundary.
One country may, in process of time, lose a little of its territory, and the other gain a little, but the territorial relations cannot be reversed by such imperceptible mutations in the course of the river.
The general aspect of things remains unchanged; and the convenience of allowing the river to retain its previous function, notwithstanding such insensible changes in its course, or in either of its banks, outweighs the inconveniences, even to the injured party involved in a detriment, which, happening gradually, is inappreciable in the successive moments of its progression.
But, on the other hand, if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation through whose territory the river thus breaks its way, suffers injury by the loss of territory greater than the benefit of retaining the natural [Page 528] river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel and within given banks, which are the real international boundary.
Such is the received rule of the law of nations on this point as laid down by all the writers of authority. (See ex. gr. Puffend., Jus. Nat., lib. iv, cap. 7, s. ii; Gundling, Jus. Nat., p. 248; Wolff, Jus. Gentium, ss. 106, 109; Vattel, Droit des Gens, liv. i, chap. 22, ss, 268, 270; Stypmanni, Jus. Marit.. cap. 5, ss. 476, 552; Rayneval, Droit de la Nature, tom, i, p. 307; Merlin Répertoire, ss. voc. alluv.)
I might multiply citations to this point from the books of public law; but, in order that either the United States or the Mexican republic, whichever in the lapse of time shall happen to be inconveniently affected by the application of this rule, may be fully reconciled thereto, it seems well to show that it is conformable to the common law of both countries.
I subjoin before doing this, as authority for Mexican jurists and statesmen, citations from the works on international law of the highest authority in Spain and Spanish America.
Don Antonio Riqueline states the doctrine as follows :
“When a river changes its course, directing its currents through the territory of one of the two conterminous states, the bed which it leaves dry remains the property of the state or states to which the river belonged, that being retained as the limit between the two nations, and the river enters so far into the exclusive dominion of the nation through whose territory it takes the new course.
“Nations must, of necessity, submit their rights to these great alterations which nature predisposes and consummates. * * * * * * * *
“But when the change is not total, but progressive only—that is to say, when the river does not abandon either state, but only gradually shifts its course by accretions—then it continues still to be the boundary, and the augmentation of territory which one country gains at the expense of the other is to be held by it as a new acquisition of property.” (Derecho Internacional, tom. 1, p. 83.)
Don Andres Bello and Don José Maria de Pando both enunciate the doctrine in exactly the same words, namely:
“When a river or lake divides two territories, whether it belong in common to the conterminous riparian states, or they possess it by halves, or one of them occupies it exclusively, the rights which either has in the lake or river do not undergo any change by reason of alluvion.
“The lands insensibly invaded by the water are lost by one of the riparian states, and those which the water abandons on the opposite bank increase the domain of the other state. But if, by any natural accident, the water which separated the two states enters of a sudden into the territory of the other, it will thenceforth belong to the state whose soil it occupies, and the land, including the abandoned river channel or bed, will incur no change of master.” (Bello, Derecho Internacional, p. 38; Pando, Derecho Internacional, p. 99.)
Almeda refers to the same point briefly, but in decisive terms. He says:
“As the river belongs to the two nations, so also the river bed, if by chance it become dry, is divided between them as proprietors. When the river changes its course, throwing itself on one of two conterminous states, it then comes to belong to the state through whose territory it runs, all community of right in it so far ceasing.” (Derecho Publico, tom. 1, p. 199.)
Leaving authorities of this class, then, let us come to, those which discuss the question in its relation to private rights, and as a doctrine of municipal jurisprudence.
The doctrine is transmitted to us from the laws of Rome. (Justinian, Inst., lib. ii. tit. i, ss. 20, 24; Dig. lib. xii, tit. i, 1. 7; see J. Voet ad Pandect, tom, i, pp. 606, 607; Heinec, Recit. lib. ii, tit. 2, ss. 358, 369; Struvii Syntag, ex. 41, c. 33, 25; Bowyer’s Civil Law, ch. 14.)
Don Alfonso transferred it from the civil law to the Partidas. (Partida, iii, tit. 28, 1. 31.) Thus it came to be, as it still remains, an established element of the laws of Spain and of Mexico. (Alvarez, Instituciones, lib. 2, tit. 1, s. 6; Asso. Instituciones, p. 101 ; Gomez de la Serna, Elementos, lib. ii, tit. 4, sec. 3, No. 2; Escriche, Dic. s. voce, accesion natural, aluvion, avulsion; Febrero, Mexicano, tom, i, p. 161; Sala, Mexicano, ed. 1845, tom, ii, p. 62.)
The same doctrine, starting from the same point of departure, made its way through the channel of Bracton into the laws of England, and thence to the United States. (Bracton de Legg. Angliæ, lib. ii, cap. 2, fol. 9; Blacks. Comm., vol. ii, p. 262; Woolrych on Waters, p. 34; Angell on Water Courses, ch. 2; Lynch v. Alien, 4 De & Bat. N. C. R., p. 62; Murray v. Sermon, 1 Hawks., N. C. R., p. 56; The King v. Lord Scarborough, iii, B & C., p. 91; S. C. ii, Bligh N. S., p. 147.) Such, beyond all possible controversy, is the public law of modern Europe and America, and such, also, is the municipal law both of the Mexican republic and the United States.
In my judgment, therefore, the tenor of the report of the commissioners, in the clause submitted to me for consideration, is in substance correct; and, if it need modification to give “to it absolute exactness, that result will be accomplished by the insertion of some word or [Page 529] phrase which shall recognize the distinction which exists in law between gradual changes of a river course by insensible accretion, and changes happening through the absolute diversion of its course, effecting avulsion of land from one or the other territory, or striking out a partially new channel through the territory of one or the other, which it is suggested is subject to occur in some part of the course of the Rio Bravo.
I have the honor to be, very respectfully,
Hon. Robert McClernand, Secretary of the Interior.