No. 352.
Mr. Marsh to Mr. Fish.

No. 513.]

Sir: Referring to my last dispatch, No. 512, dated September 15, 1874, I have the honor to report the further proceedings of the Italo-Swiss boundary arbitration.

I returned to Milan on the 16th of September, and immediately entered upon the duties of umpire under the convention agreed upon by the governments of the two countries interested.

The proofs and arguments of the agents of the parties, and the arguments of the disagreeing arbitrators, were laid before me in writing, and I devoted eight days to their examination and the preparation of a decision, which was pronounced, in Italian, in the course of Wednesday the 23d, and I returned to Florence the same evening. I shall go to Rome in a day or two, but as the minister of foreign affairs will not return to that city until after the middle of October, and as there is almost a complete suspension of business at the capital, I shall not remain constantly there until about that date. The royal family and court are not expected to return to Rome many days before the sesssion of Parliament, which, it is understood, will be convoked on the 23d of November.

The indisposition of one of the arbitrators, and pressing engagements [Page 751] on the part of the other, as well as of the agents of the respective governments, imposed upon me the necessity of limiting myself in the examination of the points before me to such as I conceived to have a substantial importance, and though I carefully read the whole discussion more than once, and consulted the principal documents referred to, I found it possible to confine my own argument to one or two questions which I conceived to embrace the real matter at issue. But, after all, my opinion covers sixteen closely-written large folio pages, and I could not even procureitto be copied, still less could I translate it, during the session of the board. When a copy is furnished me, I will transmit a translation to the Department. In the mean time, I submit the following statement of the facts, and of the principles by which I was guided in arriving at a decision.

As was observed in my No. 51, the title of the Italian communes of Crodo and Pontemaglio to the soil of the Alp of Cravairola was admitted by Switzerland, but in illustrating the nature of their title, it is proper to remark that those communes produced conveyances of undivided fractions of the territory, dated at various periods from A. D. 1367 to A. D. 1497, and that these conveyances were not from the commune of Campo or any of its citizens, but from inhabitants of the Val Antigario. How the grantors acquired title did not appear, and it was noticeable that in some of the conveyances the land was described as of the commune of Crodo in Val Antigario, and often as lying in Val Maggia. This evidence was accompanied with proof of the exercise of civil jurisdiction over the Alp by the authorities of Val Antigario, in one or two instances.

It is highly probable, judging from the general usage of the population of the Alps, that the people of Campo, which is said to have been occupied and inhabited for at least nine centuries, first partially cleared the forests of the Alp, and improved its territory; but of this there was no proof whatever, nor did it appear that the commune of Campo, or its people, had ever laid claim to the soil or sovereignty at any time before the middle of the sixteenth century, or thereabouts, if indeed even then. Switzerland conquered the Val d’Ossola and the Val Maggia in 1513, but the Val d’Oesola was given up in 1515. In 1516, by a treaty between Francis I, of France, (as Duke of Milan,) and Switzerland, the Val Maggia was recognized as belonging to the latter power.

It was contended by Switzerland that upon general principles of political geography, the water-shed is, in the absence of clear proof to the contrary, to be taken as the limit between conterminous states in mountainous countries, and further, that the designation of the valley of a considerable river includes the basins of all its tributaries, and, therefore, that as the Alp of Cravairola is a basin which discharges all its precipitations through the Rovano into the river Maggia, it must be held to be embraced within the territory of Val Maggia, secured to Switzerland by the treaty of 1516.

Considerations of political and economical convenience were appealed to with great force by Switzerland, and it was contended that certain proceedings before a Swiss magistrate, in 1554, involving a question of the eastern boundary of the Alp, were a recognition of the jurisdiction of Switzerland, by the commune of Crodo, which bound Italy. Numerous acts of attempted jurisdiction over the locus in quo by Swiss local authorities, after the year 1641, were alleged by Switzerland, which, however, were met by proof of similar acts of Italian officials about the same period, but there was no evidence whatever that Switzerland ever made any claim of sovereignty over the Alp before 1554, or indeed, according [Page 752] to my interpretation of the evidence, before 1641. The conflict of jurisdictions from 1641 to the present day did not appear to me to have resulted in anything like the establishment of either, and I held that the rights of the parties must be determined by the status of the question in 1641.

I have no copies of any of the documents, or of the arguments of the parties, or, as I have said, even of my own decision; I must, therefore, for the present, limit myself to a very summary statement of my opinion and of the reasons for it.

As to the question of expediency, I was clearly of opinion that the ultimate best interests of both parties would be most effectually promoted by assigning the territory in dispute to Switzerland; but I could not construe the convention as contemplating that course on the ground of convenience alone, and as no provision was made for the transfer of the soil and compensation to the proprietors, I thought the extension of the sovereignty, institutions, laws, and administration of Switzerland over the Alp, while its proprietors and occupants remained citizens of a foreign country, would occasion continual jealousies and dissensions, and, therefore, prove prejudicial, rather than beneficial, to the peace, harmony, and good will of the two countries.

As to the water shed, I held that, as a principle of demarkation of political jurisdiction, it had not been generally recognized in Europe, and, least of all, in the boundaries between the two parties in the present case, which present numerous deviations from it.

As to the geographical rule of embracing, by the designation bf a principal valley, the basins of all the lateral affluents, I was of opinion that, in the construction of treaties, the interpretation was subject to control by the contemporaneous understanding of the parties, as evidenced by possession, claim, or non-claim, and other circumstances. I considered that the possession of the locus in quo, time out of mind, by Italian communes and their grantors, accompanied with claim of jurisdiction on their part, and absolute non-claim by Campo, so far as proof existed, was, at least, prima facie evidence that the exclusive possession of the soil by Italian municipal and quasi-political corporations was regarded as carrying the sovereiguty with it, especially at a period when lew lords and rulers could show any other title than possession to the lands they held; and that this evidence was applicable also to Switzerland, which, for nearly forty years certainly, and, as I thought, for a century and a quarter after she acquired the Val Maggia, never laid claim to jurisdiction over the Alp of Cravairola, and, therefore, probably never held it to be included within her limits.

I next considered the proceedings respecting the eastern boundary of the Alp of Oravairola—1534—which were adduced by Switzerland as evidence of the recognition of the jurisdiction of a Swiss magistrate over the Alp by the authorities of Crodo. From the vague record of these proceedings it appeared that quœdam differentia, Us et quœstio juridica had arisen, causa et occasione confinium alpis Cravairola ipsum de Crodo, et dominii ipsorum nominum de Campo cumque fuerit, etc., etc., et quod litigmido in jure coram Magnific. D. Christophorum Quantoni de Friburgo, et Honor. Com. Vallis Madix, etc., but the nature of the action, the names of the parties, and the precise points at issue were not set forth. It was contended by Switzerland that an appearance by Crodo before the Swiss magistrates named in the record was an admission of the jurisdiction of the magistrates over the locus in quo. There was also an ingenious argument as to the force of the word dominium used in the body of the record, and in the attestation [Page 753] of the notary who drew up and certified it. I was of opinion that the technical appearance of Crodo as a party was not sufficiently made out by the record; for the appearance, such as it was, might have been expressly for the purpose of excepting to this jurisdiction; and this suggestion was strengthened by the fact that there was no adjudication of the question, the communes having agreed upon a commission of citizens of Crodo itself to determine and mark the boundary, which was done accordingly. There was, however, as 1 shall show presently, a conclusive reason for giving quite a different construction and value to the proceedings in question from those ascribed to them by the agents of Switzerland. As to the word dominium, I held that Switzerland had mistaken both the grammatical category and the meaning of the word, and, of course, that it had not the force claimed for it. But the real point of the case lay, as I thought, in the subsequent action of the two governments in relation to these proceedings for fixing the boundary. In 1555, and of course the next year after the establishment of the boundary-marks, the royal government at Milan addressed a communication to the commissary or podesta of Domo D’Ossola, reciting that the ambassadors of Switzerland had complained that citizens of that province had violently entered into the Val Maggia and removed to a more easterly line the bounds which had formerly stood as limits “between one and the other jurisdiction” and that the ambassadors had demanded that the boundary stones should be replaced in their original positions. In the course of the years 1555 and 1556 followed five or six other official documents, demanding or ordering the re-establishment of those limits; and it was noticeable that in not one of these documents, except the record of 1554, is any mention made of the Alp of Cravairola; but, on the contrary, the controversy is always spoken of as “inter Domodossolanos subditos nostros ct homines Vallis Madix subditos Helvetiorum, de finibus,” or as “controversies finium inter commune Crodi et commune de Campo, finis inter ipsa communia, and termini inter ipsa communia.” The bounds were replaced; and nothing more is heard of the controversy; nor do the Swiss authorities appear to have advanced any claim of jurisdiction over the Alp until A. D. 1641. The termini referred to in those communications were certainly those set by the commissioners in 1554, and as, in all the official documents emanating from the governments of Milan and the local authorities of the province of Val d’Ossola, these termini are treated as the boundaries, not of an outlying pasture occupied by Crodo on Swiss territory, but as of the respective “jurisdictions,” and of the “communes,” it was my opinion that the two supreme governments of Milan and Switzerland considered the boundary stones of 1554 as marking the limits of the territorial sovereignty of their respective states. The acquiescence of both parties, in actual practice, in this demarkation for a period of more than four score years, I thought strongly confirmed this view of the case.

In 1641, the Swiss governor of Val Maggia advanced a claim of jurisdiction over the Alp in a very formal manner, and this was repeated in the year following, but always resisted by the Italian government of Domo d’Ossola. At length, in 1650, a congress was held at the Borro-mean Islands for the determination of the question. But no solution was arrived at, except an agreement that the people of Crodo hould have the right of floating the timber cut by them down the Rovano into the Val Maggia and the lake, and that the people of Campo might occupy a part of the Alp as a pasturage, after it had been abandoned by the people of Crodo in the autumn, and it was expressly stated that this was granted “as a favor to the Swiss commissioners at the congress.” [Page 754] The provisions of the agreement were to remain in force until the question of jurisdiction should be finally decided, which, it is needless to say, has never been done.

The subsequent history of the question is made up of a succession of private trespasses and official attempts at the exercise of local jurisdiction by both parties, but I do not find anything in them to affect the rights of either of the respective governments, and these rights, in my apprehension, remain what they were three hundred years ago.

The Comprosius Arbitral, as it is styled in the convention, is drawn up in French, and it states the question to be decided in these terms:

“La liene frontière [entre les deux pays] doit elle, comme l’estime la Suisse meire le faite de la claime principale [des montagnes] en passant par la corona di grosso Pizzo dei Croselli, Pizzo Piodo, Pizzo del Forno, et Pizzodel Monastero; en bien doit-elle, comme l’estime l’Italiaquilterastero la chaîne principale au sommet désigné Sonnenhorn, A2788m., pour descendre vers le ruisseau de la vallé li Campo, et, en suivant l’ arête secondaire nominé Creta Tremolina (ou Mosso del Lodano, 2356m., sur la Easte Suisse) rejoindre la claime principale au Pizzo del Lago Selato?”

My decision, omitting the formal part, was simply an affirmation of the second proposition in the above paragraph in the words of the convention.

I greatly regret that I could not, in drawing up my opinion, and cannot now, give the argument a fuller development, but I hope I have said enough to justify the conclusions at which I have arrived.

In order to save possible embarrassment, I informed Senator Guicciardi, president of the board, that I could accept from the respective governments no compensation, gift, or other material acknowledgment, and begged that none might be offered by way of recognition of the duty I had performed.

I have, &c.,