Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1911

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The American commissioner concurs in the findings of the presiding commissioner to the effect that the treaties of 1848 and 1853 did not establish a fixed and invariable line; that the treaty of 1884 was retroactive, and in the finding of the presiding commissioner and the Mexican commissioner to the effect that the United States has not established a title to the Chamizal tract by prescription. He is compelled to dissent in toto from so much of the opinion and award as assumes to segregate the Chamizal tract and to divide the parts so segregated between the two nations, and from that part of the opinion and award which holds that a portion of the Chamizal tract was not formed through “slow and gradual erosion and deposit of alluvium” within the terms of the treaty of 1884.

The reasons for the dissent are threefold: First, because in his opinion, the commission is wholly without jurisdiction to segregate the tract or to make other findings concerning the change at El Chamizal than “to decide whether it has occurred through avulsion or erosion, for the effects of articles 1 and 2 of the convention of November 32, 1884” (and art. 4, convention of 1889), Secondly, because, in his opinion, the convention of 1884 is not susceptible to any other construction than that the change of the river at El Chamizal was embraced within the first alternative of the treaty of 1884. And, thirdly, because, in his opinion, the finding and award is vague, indeterminate, and uncertain in its’ terms, and impossible of execution.

division of tract a departure from convention of 1910.

In the judgment of the American commissioner, articles 1 and 3 of the convention of June 24, 1910, providing for the present arbitration, submit to this commission the question as to the international title of the Chamizal tract in its entirety and this question only. Article I of the convention bounds the Chamizal tract with technical accuracy, while article 3 provides that “the Commission shall decide solely and exclusively as to whether the international title to the Chamizal tract is in the United States of America or Mexico.”

It is believed that by those provisions, when read together, the two governments have asked this commission a specific and definite question and that the commission is “solely and exclusively “empowered and required to give a specific and definite answer—either that the international title to the Chamizal tract as defined in the convention is in the United States or that it is in Mexico. The prima facie meaning of the language of the convention is reinforced when the convention is read in the light of the history of the controversy which called it into being, and in the light of the conduct of the two parties before this commission. From Señor Romero’s note of January 9, 1867 (U. S. Case App., p. 553) which is, so far as appears, the first reference to what is now known as the Chamizal tract in the correspondence between the two governments, down to the concluding arguments before this commission on June 2 last, there is not the slightest suggestion on the part of either of the two governments that there could be any question of a division of the tract. The presiding commissioner was the first to raise the question of a division of the tract in connection with another point which was under discussion by counsel for the United States. (Record, pp. 430, 432.) Subsequently, counsel for Mexico defined the attitude of Mexico as to the issue before the Tribunal in the following language:

In answer to that (i. e., the suggestion that no monuments were fixed) I have but to remind this court that the treaty of 1910 says that the monuments are fixed, says that the line was run, tells this court where to find it and says that either that is the line between this country and Mexico or the present channel of the Rio Grande as it runs is the line. (Record, p. 500.)

Thereafter, counsel for the United States recurred to the question and specifically took the position that the only question before the Tribunal was as to the international title to the tract in its entirety, called attention to the evident agreement of the parties upon this point, and pointed out that a decree segregating the tract “would be a departure from the terms of the convention.” (Record, pp. 535, 536.)

Even in ordinary tribunals of general jurisdiction it is regarded as a dangerous practice for the court to award a decree not solicited or indorsed by counsel for either party. Is not this danger accentuated when an international tribunal, which has no powers except those conferred upon it by the terms of the submission under which it sits, assumes to raise and answer a question never suggested by the parties in the course of negotiations extending over fifty years and not indorsed by either party in argument when suggested from the bench? Particularly is this true when it can be asserted without fear of contradiction that if there had been the slightest idea in the minds of the negotiators of the treaty of June 24, 1910, that it was susceptible of the construction which has been placed upon it by the majority of the commission, the possibility of such an unfortunate result would have been eliminated in even more precise and affirmative language.

The commissioner for the United States is unable to understand the force of the reference in the opinion of the presiding commissioner to the case of Nebraska v. Iowa as a “precedent” for “dividing the tract in question between the parties.” There is an apparent difference between the powers of the Supreme Court of the United States, acting under the provisions of the Constitution of the United States, conferring general and original jurisdiction in controversies between States on a bill and cross bill in equity to establish a disputed boundary line between two States, and this commission with powers and jurisdiction strictly limited by the conventions which have called it into being. Indeed, the opinion of the majority of the commission seems to recognize this distinction in another connection in stating the proposition, in which the American commissioner concurs, that the present commission, unlike the Supreme Court in Nebraska v. Iowa, is bound by the terms of the convention of 1884. It is also bound by the terms of the convention of 1910.

It is axiomatic that “a clear departure from the terms of the reference” (Twiss, The Law of Nations, 2d ed., 1875, p. 8) invalidates an international award, and the American commissioner is constrained to believe, that such a departure has been committed by the majority of the commission in this case in dividing the Chamizal tract and deciding a question not submitted by the parties.

two kinds of erosion a departure from convention of 1884.

But this is not all; as The Hague Court recently pointed out in the case of the Orinoco Steamship Co., “excessive exercise of power may consist not only in deciding a question not submitted to the arbitrators, but also in misinterpreting the express provisions of the agreement in respect of the way in which they are to reach their decisions, notably with regard to the legislation or the principles of law to be applied.” (United States v. Venezuela, before The Hague Court. American Journal of International Law, vol. 5, No. 1, pp. 232 and 233.)

The preamble of the convention of June 24, 1910, prescribed the law which governs this commission, namely, “the various treaties and conventions now existing between the two countries and * * * the principles of international law.” The commission has held the convention of 1884 retroactive and therefore in general applicable to this case. While the convention of 1884 purports to cover all changes that may occur in the course of the Rio Grande and the Rio Colorado where they constitute a boundary between the United States and Mexico, it nevertheless makes provision for but two methods of effecting such changes, or rather distinguishes the changes which may occur into two distinct classes, viz, one covers alterations in the banks or the course of those rivers, effected by natural causes through the slow and gradual erosion and deposit of alluvium, and the other covers “any other change wrought by the force of the current, whether by the cutting of a new bed or when there is more than one channel by the deepening of another channel than that which marked the boundary at the time of the survey made in 1852.”

The American commissioner deems it unnecessary to examine further into the question of the cutting or deepening of a new bed since the presiding commissioner and the Mexican commissioner have found that no change which has taken place opposite the Chamizal tract since 1852 has resulted “from any change of bed of the river” (Opinion, p. 29), and in that finding the American commissioner concurs.

The commissioner for the United States does deem it proper, however, to point out that the language of Article II of the convention of 1884 makes no provisions respecting the boundary in the event of any other change of the river than that embraced in “the cutting of a new bed” or the “deepening of another channel than that which marked the boundary at the time of the survey” of 1852.

It is true that Article II of the convention begins with the words “any other change wrought by the force of the current,” but those words are immediately followed by the provision “whether by the cutting of a new bed, or when there is more than one channel by the deepening of another channel than that which formed the boundary at the time of the survey made under the aforesaid treaty.”

It is a rule of interpretation which the Supreme Court of the United States says to be “of universal application” (United States v. Arredondo, 6 Pet., 691) that “where specific and general terms of the same nature are embraced in the statute, whether the latter precede or follow the former, the general terms take their meaning from the specific and are presumed to embrace only things or persons designated by them.” (Fontenet v. The State, 112 La., 628, 36 So. Rep., 630.)

Authorities to support this proposition might be adduced without number, hut reference will be made to a few; U. S. v. Bevans, 3 Wheat, at p. 390; Moore v. American Transportation Co., 24 Howard, 1–41; U. S. v. Irwin, Federal Cases No. 14445; Supreme Court of Ky. in City of Covington v. McNicholas Heirs, 57 Ky., 262; Rogers v. Boiller, 3 Mart. O. S., 665; City of St. Louis 17. Laughlin, 49 Mo., 559; Brandon v. Davis, 2 Leg. Rec, 142; Felt v. Felt, 19 Wis., 183, also State v. Gootz, 22 Wis., 363; Gaither v. Green, 40 La. Ann., 362; 4 So. Rep., 210; Phillips v. Christian Co., 87 III. App., 481; In re Rouse, Hazzard & Co., 91 Fed. Rep., 96; Barbour v. City of Louisville, S3 Ky., 95; Townsend Gas & Electric Co. v. Hill, 64 Pac. Rep., 778, 24 Wash., 369; State v. Hobe, 82 N. W., Rep., 336, 106 Wis., 411.

In Regina v. France, 7 Quebec Q. B., 83, it is stated that:

It is immaterial, it has been held, whether the generic term precedes or follows the specific terms which are used. In either case the general word must take its meaning and be presumed to embrace only things or persons of the kind designated in the specific words. (Quoted from Am. & Eng. Enc. of Law, vol. 26, p. 610, under captain “Statute.”)

did the united states abandon vested rights?

Not only does the language of Article II confine its meaning to specific changes of channel described therein, but the fifth article of the same convention makes provision for the protection of property rights “in respect of lands which may have became separated through the creation of new channels as defined in Article II,” but it makes no provision whatever for the protection of property rights in contemplation of any other change in the course of the river, much less does it make such provision as to lands degraded by rapid and violent erosion. It was suggested by the honorable presiding commissioner during the argument of this case that no provision was necessary to protect private rights in case the land was carried away by any character of erosion because the property itself was destroyed and no private rights could remain. (Record, pp. 704, 705.) In this proposition the United States commissioner concurs, but he is wholly at a loss to discover how a public or international title could remain in property that was so effectually destroyed as to annihilate private rights. Even supposing it was unnecessary to protect private rights on the banks thus degraded, would no idea have suggested itself with regard to the rights of those who had taken up their residence on the other side, for instance at El Chamizal, or at Santa Cruz Point? As suggested by the presiding commissioner, “all the great changes in the course of the Rio Grande had occurred and practically the whole Chamizal tract had been formed * * * but the fact remains that all the great and visible changes which are reported to have taken place during the floods extending from 1864 to 1868 had done their work, and, in the case of the Chamizal tract, the changes had been so considerable in the upper portion of the river, which is proved to have been less liable to modifications owing to the nature of its soil than the lower part of the river, that it formed the subject of much diplomatic correspondence.” (Opinion, p. 20.) And yet the record in the case discloses that every foot of the accretion at El Chamizal had been occupied prior to 1884 under color of American title. (See official map of El Paso, Tex., 1881, U. S. Countercase, Portfolio, Map No. 10; also act incorporating the city of El Paso, U. S. Countercase, p. 139, and Patents of the State of Texas and Minutes of the City Council of the City of El Paso, U. S. Countercase, pp. 139–168.)

The Supreme Court of the United States, in the case of United States v. Arredondo, supra, says:

That it has been very truly urged by the counsel of the defendant in error that it is the usage of all the civilized nations of the world, when territory is ceded, to stipulate for the property of its inhabitants. An article to secure this object, so deservedly held sacred in the view of policy as well as of justice and humanity, is always required and never refused.

And further in that case the court, in alluding to the treaty between the United States and Spain, concluded on the 27th of October, 1795, said:

Had Spain considered herself as ceding territory, she could not have neglected a stipulation which every sentiment of justice and national honor would have demanded and which the United States could not have refused.

Under the fluvial boundary, which this commission has held the treaties of 1848 and 1853 created, a title had vested in the United States and the citizens thereof in all accretions to the Chamizal tract under the recognized principles of international law. If the language of the convention of 1884 recognized in Mexico or its citizens any right in any portion of such accretions, however formed, the United States divested itself and its citizens of rights which international law had given them and yet the United States did, if the opinion of the majority of this commission is correct, neglect “a stipulation which every sentiment of justice and national honor would have demanded, and which the United States [Mexico] could not have refused,”

Vattel says (Law of Nations, Book I, chap. 2, sec. 17):

The body of a nation can not then abandon a province, a town, or even a single individual who is a part of it unless compelled to it by necessity or indispensably obligated to it by the strongest reasons founded on the public safety.

The foregoing views are in entire accord with the opinion of the Mexican commissioner as expressed in the second paragraph of the dissenting opinion.

what law governs?

The commissioner for the United States has been unable to discover, although he has made a careful study of the opinion of the majority of the commission, under what provision of the convention of 1884 it is conceived that Mexico can be entitled to any portion of the Chamizal tract, the formation of which may be ascribed to any character of erosion, whether slow and gradual or rapid and violent. Had the commissioner for the United States been able to expel from his mind and to disregard the language of the treaties of 1889 and 1905, had he been able to forget and disregard the construction which has been placed upon Article I of the convention of 1884 by the International Boundary Commission since its organization in 1893, and had he been wholly uninfluenced by the fact that counsel for Mexico as well as counsel for the United States were agreed that the convention of 1884 embraced but two classes of changes as hereinbefore set forth (Record, p. 608), he might have been able to concur with the majority of the commission that the degradation of the Mexican bank of the river at some uncertain points and at some uncertain times was not within the meaning of Article I of the treaty of 1884; but the commissioner for the United States does not believe that by any strength of the imagination or any elasticity of the law, any character of erosion and deposit can be brought within the meaning of Article II of that convention. Therefore, the result must have been the same; if the change which occurred at El Chamizal was not within the meaning of either Article I or II of the convention of 1884, then said convention becomes inapplicable and we must look to the principles of international law for the rule which is to govern our action. But it is admitted both in the language of the commission as embodied in the record of our hearing (Record, pp. 203, 300) as well as in the printed argument of counsel for Mexico (Mexican Argument, p. 31) that under the principles of international law the change in the course of the river due to erosion and deposit would carry the boundary line with it, no matter how rapid might be the degradation of one bank by erosion, provided only that the growth of the other bank was accomplished by gradual deposit of alluvium, and such the American commissioner conceives to be the undisputed evidence and the admitted facts of this case.

The precise language in which the learned agent of Mexico sets forth his position upon this point is so significant as to deserve quotation:

In fact, the convention only occupied itself with two classes of alterations or changes of the bank and channel of the river; one, that originated by the slow and gradual erosion of one bank and the deposit of alluvium, and the other by the abandonment of an old bed and the opening of a new one. (Record, p. 203.)

In view of the foregoing the commissioner for the United States can not but regard it as unfortunate that the commisson should have indicated no desire to hear further argument on this point (as appears in the record of the hearing at pp. 608–614), where the commission indicated that it scarcely seemed desirable to pursue this point since counsel for both sides seemed agreed that the convention of 1884 embraced but two classes of changes, because he ventures to believe that counsel for the United States would have convinced the commission that it must assign the change at El Chamizal to the first alternative in Article I of the convention of 1884, or else disregard the convention of 1884 entirely and decide the case upon the principles of international law.

In the opinion of the presiding commissioner (Opinion, p. 33) reference has been made to the case of the City of St. Louis v. Rutz (138 U. S., 226), and it is stated that the facts in that case are very similar to those established by the evidence in the present case. But, with all respect, the American commissioner submits that while the rapid degradation of the east bank of the Mississippi River, as described in that case, is very similar to the erosion that is shown to have occurred at certain or rather uncertain points opposite El Chamizal, the vital facts in that case and the present case are very different. In that case the evidence disclosed a rapid degradation of the east bank of the river and the complete submergence for several years of that portion of plaintiff’s surveys. Subsequently an island formed on the east side of the thread of the river and that island became joined by accretion to plaintiff’s surveys. The court held that under the laws of Illinois the plaintiff owned in fee simple that portion of the river bed lying east of the thread of the stream and that when new land formed east of the thread of the stream it belonged to the former owner. The court makes very clear that the ground of its decision is that the holder of the Missouri title on the west bank could not own the land which thus appeared first by an island formation and subsequently by accretion thereto east of the thread of the stream.

An analogous case would have been presented here if after the river had invaded Mexican territory by rapid erosion, making for itself a bed 500 yards wide, as one witness testified it did (U. S. Case, App., p. 118), an island had subsequently arisen to the south of the thread of the stream. That island would have belonged to Mexico whether it subsequently became joined to the south bank or not, or even though it might have become joined by accretion after its formation to the north bank, but there is not a suggestion in the evidence that such a fact ever occurred. On the contrary, the evidence indisputably shows that the north bank did not even move south simultaneously with the destruction of the south bank but that it grew up in a long course of years by the slow and gradual deposit of alluvium.

The American commissioner is constrained to hold, therefore, that the majority of the commission have failed to apply to the case the express rules laid down by the convention of 1884; and by this failure have departed from the terms of the submission and invalidated the award.

a departure from the convention of 1889.

In the opinion of the American commissioner this failure becomes the more manifest by reference to the terms of article 4 of the convention of 1889, to which, supplemented by the convention of 1910, this commission owes its life. By that article, the very law of its being, this commission when considering any alteration in the course of the river named, is confined “to decide whether it has occurred through avulsion or erosion, for the effects of articles 1 and 2 of the convention of November 12, 1884.” The American commissioner conceives that this provision was not only declaratory and interpretative of the changes contemplated by the convention of 1884, but that said clause is jurisdictional in so far as the powers of this commission are concerned.

In the opinion of the American commissioner, the two Governments in the preamble of the Banco Treaty of 1905 again placed an authoritative interpretation upon the words “slow and gradual” in the convention of 1884. In that treaty the two Governments after reciting articles 1 and 2 of the treaty of 1884, expressly declared that the changes whereby the so-called bancos had been formed were “owing to the slow and gradual erosion coupled with avulsion.” That the erosive action thus referred to was and is far more rapid and violent than that which occurred in the Chamizal tract is unquestionable, but the presiding commissioner and the Mexican commissioner observe, with reference to the investigations undertaken by the International Boundary Commission upon which the banco treaty was based, that

The report rendered by the commissioners to their respective Governments in no way discloses any facts tending to show the nature and extent of the erosive changes, and properly so, because that was not material to the question to be decided. It is true that, by making a minute examination of the plans accompanying the report, the actual extent of the erosive changes might have been ascertained, but there certainly was nothing in the question submitted to the Governments for solution to necessitate, or even to suggest, such an inquiry. (Opinion, p. 34.)

With all respect, it would seem that the question as to whether or not the changes which resulted in the banco formation were “slow and gradual” within the meaning of the treaty of 1884, was so “material to the question to be decided” that if those changes were not “slow and gradual” there would in most instances have been no bancos to eliminate. It is true that the commissioners did not think it necessary to state in figures the rate of erosion on each banco, but the rate of erosion was obtainable by a casual examination of the maps and reports if the plenipotentiaries were interested in knowing the rate. Having the information before them they were free to use it or not in framing their language, but no rule either of logic or justice is perceived that would relieve them or the contracting parties from being held to the accountability which binds all other men when they use language in a legal document to express ideas.

And again the American commissioner feels constrained to say that he can not understand the method of the interpretation which gives such emphasis to the words “slow and gradual” in Article I of the treaty of 1884 as to override not only the ordinary rules of international law and the uniform construction placed upon the treaty by the International Boundary Commission since its organization and by agents and counsel for both parties before this commission, but also what appears to him to be the plain and unmistakable intent of Article II to confine all “other changes” to the cutting of a new bed or the deepening of an existing channel, while the same words in the Banco Treaty of 1905, although entirely consistent with the purpose and scope of that treaty, are apparently deemed negligible and unimportant.

The failure of the presiding commissioner to regard the Banco Treaty of 1905 as placing an authoritative interpretation upon the words “slow and gradual” in the treaty of 1884, appears all the more strange to the American commissioner in view of the fact that the presiding commissioner, earlier in his opinion, in his discussion of the retroactivity of the treaty of 1884, attaches great weight to this same treaty of 1905 because it provides for the elimination from the treaty of 1884 of bancos formed prior to 1884. The presiding commissioner has no difficulty in holding the governing minds of the two countries responsible for the language which they used in the treaty of 1905 so far as it construes the treaty of 1884 retroactively. He says:

This recognition of the retrospective application of the convention of 1884 is not that of subordinates, but of the Governments themselves, which expressly adopted the views of the commissioners as to the application of the treaty of 1884 and as to the desirability of taking such cases, both past and future, out of the convention and substituting new provisions. (Opinion, p. 24.)

It is difficult to see why the plenipotentiaries should be charged with notice of the date at which these bancos were cut off and not of the rate at which they were formed.

It should furthermore be remembered that in his opinion in Chamizal case No. 4 in 1896 the American commissioner called attention to the rapidity of the erosion which has been recognized as slow and gradual in the case of the bancos and gave the figures of erosion in the case of one banco, the Banco de Camargo, 87 meters a year, figures which exceed any erosion which could have taken place in the Chamizal tract, even on an assumption most favorable to the Mexican contention. In discussing the reports rendered by the commissioners to their respective Governments in 1896, in which the American commissioner asserted that if the erosion in El Chamizal was not slow and gradual, then a fortiori, the erosion which had formed the bancos in the lower part of the river could not be slow and gradual,¹ the presiding commissioner suggests that that report “was counteracted by the reply of the Mexican commissioner, who argues that there was no similarity between the two cases,” and deduces therefrom the conclusion that “under these circumstances it is reasonable to conclude that the Mexican Government adopted the view of their commissioner” (Opinion, pp. 34, 35 ). It is difficult to accept this conclusion in view of the fact that in drafting the treaty of 1905 the Mexican Government brushed aside the distinction sought to be established by its commissioner and applied the provisions of the banco treaty to the Rio Grande in the upper as well as in the lower division of the river “throughout that part of the Rio Grande * * * which serves as a boundary between the two nations.” (U. S. Case, App., p. 87.)

The irresistible logic with which the presiding commissioner drives home the conclusion that the ambiguity, if any, in the convention of 1884, in so far as the retroactivity of the convention is concerned, is removed by the practical construction placed upon that treaty by the contracting parties as well as by the language of the treaties of 1889 and 1905, compels the admiration and approval of the American commissioner, but he can not expel from his mind that the conclusion from the same course of practical construction and subsequent treaty interpretation applies with equal force to the ambiguity, if any, of the convention of 1884 when dealing with erosion and avulsion.

The words “slow and gradual” are relative terms. The treaty of 1884 was drafted specifically for the Rio Grande, and its changes at the point in question have been slow and gradual compared to other changes both in the upper and lower river or when compared with the progress of a snail.

award void for uncertainty.

The award of the presiding commissioner and the Mexican commissioner, constituting a majority of the commission, is to the effect that the—

international title to the portion of the Chamizal tract lying between the middle of the bed of the Rio Grande, as surveyed by Emory and Salazar in 1852, and the middle of the bed of the said river as it existed before the flood of 1864, is in the United States of America, and the international title to the balance of the said Chamizal tract is in the United States of Mexico. (Opinion, p. 36.)

The American commissioner is of opinion that this award is void for the further reason that it is equivocal and uncertain in its terms and impossible of accomplishment. The presiding commissioner and the Mexican commissioner “conceive that it is not within their province to relocate that line [the line of 1864], inasmuch as the parties have offered no evidence to enable the commissioners to do so.” (Opinion, p. 36.) It is submitted, with all respect, that the fact that the parties have offered no evidence of the location of the line of 1864 is suggestive of the fact that it was not within the contemplation of the parties that the tract should be divided. Perhaps the reason that agent and counsel on either side, even after the suggestion of the court as to the possibility of dividing the tract along the channel of 1864, did not ask leave to offer evidence for the purpose of relocating this channel was because they were and are well aware that it would be as impossible to locate the channel of the Rio Grande in the Chamizal tract in 1864 as to relocate the Garden of Eden or the lost Continent of Atlantis.

In concluding this dissenting opinion it is impossible to refrain from pointing out the unfortunate results which this decision would have in the contingency that the two countries should attempt to follow it in interpreting the treaty of 1884 in other cases.

The American commissioner does not believe that it is given to human understanding to measure for any practical use when erosion ceases to be slow and gradual and becomes sudden and violent, but even if this difficulty could be surmounted, the practical application of the interpretation could not be viewed in any other light than as calamitous to both nations. Because, as is manifest from the record in this case, all the land on both sides of the river from the Bosque de Cordoba, which adjoins the Chamizal tract, to the Gulf of Mexico (excepting the canyon region) has been traversed by the river since 1852 in its unending lateral movement, and the mass, if not all, of that land is the product of similar erosion to that which occurred at El Chamizal, and by the new interpretation which is now placed upon the convention of 1884 by the majority of this commission not only is the entire boundary, thrown into well-nigh inextricable confusion, but the very treaty itself is subjected to an interpretation that makes its application impossible in practice in all cases where an erosive movement is in question.

The convention of 1910 sets forth that the United States and Mexico “desiring to terminate * * * the differences which have arisen between the two countries,” have “determined to refer these differences” to this commission enlarged for this purpose. The present decision terminates nothing; settles nothing. It is simply an invitation for international litigation. It breathes the spirit of unconscious but nevertheless unauthorized compromise rather than of judicial determination.

(Signed)

Anson Mills.

Individual opinion of the commissioner of Mexico.

[Translation.]

The Mexican commissioner respectfully begs to differ from the opinion of his learned colleagues in definitely judging the subject of the Chamizal in the matter of the fixedness and invariability of the boundary line of 1852, and also in regard to the retrospective application of the convention of 1884, as it does not appear to him that the findings of the majority on both points are supported by the record and the arguments that figure in the proceedings.

The agent of the Government of Mexico has left established a fundamental axiom in right—that the alluvium should be governed and qualified by the laws in force at the time in which it commenced to form. In the depth of this principle is enveloped the universal maxim of the irretroactivity of the laws, unless it is stipulated expressly in them, or that at the time the phenomena in question took place there should have been no provisions to cover it.

Neither of the two exceptions cited occur in the case of the Chamizal, as in 1852 there existed a perfectly defined law to apply—the treaty of Guadalupe. The convention of 1884 evidently does not contain any direct and precise stipulation as to its retrospective power.

My first proposition, according to this, is that the treaty of 1848 stipulated in a clear and precise manner a fixed or “limited” line.

The agent of Mexico expounds in methodical and sufficient form the classical division, universally adopted, of property in two large categories: “Arcifinious” property and “limited” property. The characteristic of the former is to be determined in one of its boundaries by natural geographical “accidents,” such as mountain ranges, rivers, etc., which by their manifest discernibility on the ground constitute within themselves limited lines, which in order to designate perfectly it is sufficient to mention. In order that the property may be in the second category, evidently it is sufficient that it does not pertain to the first, although further than that it is indicated characteristically as that whose boundaries in all senses are marked by means of definite and permanent lines or signs.

Now, it has remained undenied in this judgment that the treaty of 1848 directed the general setting of landmarks on the dividing line between Mexico and the United States, and the marking of these landmarks on precise and authentic plans, as well as a religious conservation in the future of the line so fixed, and it is also shown in the record, without discussion on the part of America, that the commissioners charged with executing this convention, complying with the letter of their instructions, agreed, ordered, and carried to a conclusion the erection of permanent monuments, identical in character to those of the nonfluvial line, along the length of the fluvial, and that this operation was known to the two Governments and was not disapproved by them, to which they gave account of all their acts.

In the matter of the Chamizal, there is data to prove that at least two of these monuments (of iron) were placed; one on the right bank of the river, in what is now Cuidad Juarez, and another on the left, in Magoffins-ville, now part of El Paso. That these monuments were properly “mojoneras” (landmarks) and not signs of topographical reference is undeniable, for the reason that they did not connect topographically with the lines of the survey. Their sole object was to “show the limits of both Republics,” and their erection would have been absolutely unnecessary in case of an arcifinious boundary.

It is the opinion of the majority of the commissioners that the declaration in the treaty of 1853 (Article I) that the limits between both countries should follow the middle of the Rio Bravo, as stipulated in that of 1848, is the best proof that the former treaty created an arcifinious and not a fixed line; because, it is said, if the line had been fixed before 1853, it would not have been affirmed then—both Governments knowing, as they did know, that the river had changed its course between the former and the latter treaty—that the center of the bed would continue being the point of separation between the eminent domains of the two nations. The commissioner for Mexico feels its necessary to state that he fails to see the force of the argument, because in his conception the treaty of 1853 had three objects: First, to establish a boundary line in the territory between the Rivers Bravo and Colorado; second, to finish the establishment, where it had not already been concluded, of that portion of the line of 1848 not affected by the Gadsden Treaty; third, and very important, to ratify the portions already established of the line of 1848; and the new commissioners, to whom was entrusted the execution of Article I of the agreement, were given entire and final powers for each and every one of the three parts of their trust. Therefore, when in 1857 they jointly delivered to their Governments as result of their labors a collection of plans in which was clearly shown the position of the dividing line, according to the last treaty, that line (it might have been run in 1849, in 1852, or in any other year) remained adopted as the sole and invariable line of separation between the two Republics.

In the particular matter referred to the judgment of this arbitration court, the river has varied after the survey of 1852 and before the signing of the convention of La Mesilla, and the new commissioners knew it perfectly. What should they have done had they believed the treaty of 1853 considered the river as arcifinious? Undoubtedly resurveyed map No. 29 in order to clearly mark out upon it the new and exact position of the dividing line; but as they did not so understand it, but knew that the line of 1852 ought to be fixed, and that the new line to be established after 1853 not having been already established before, would also have to be fixed, they comprehended that, assuming that in 1852 the position of said line in this valley had been finally decided and marked on official maps adopted by both commissions, the treaty of 1853 imposed upon them the obligation of ratifying it, and thus they did, signing in 1855 the final sheet No. 29, notwithstanding the fact that the river marked on it did not then correspond with the true position which its course followed in the valley in 1855. This is the reason why the argument of his colleagues works in an opposite sense in the mind of the Mexican commissioner than [sic] it does in theirs.

The opinion of the majority of the honorable commissioners is that the subsequent acts of the two Governments show: On the part of the United States, an invariable judgment in favor of the interpretation of the treaties of 1848 and 1853 as establishing an arcifinious limit in the fluvial portion of the boundary common to them; on the part of Mexico a lack of determination between the idea of the fixed line and a fluvial arcifinious limit.

Admitting, as the Mexican commissioner clearly does, the doctrine of this court that isolated expressions of officials of one or the other Governments do not in any manner constitute an international obligation binding upon the nations whom they serve respectively, it is right to pass over the diverse opinions emitted by Messrs. Lerdo de Tejada, Frelinghuysen, etc., and look exclusively to the correspondence and negotiations sanctioned internationally and recognized by both Governments, in order to ascertain their attitudes in the matters under discussion, and even then in only their vital points and not in their minor or incidental points.

It is not shown in the record that there was correspondence or negotiations of that character touching the interpretations of the treaties of 1848 and 1853 but on three occasions: In 1875 between Mr. Mariscal and Mr. Cadwalader; in 1884, between Mr. Romero and Mr. Frelinghuysen, in connection with the island of Morteritos; and in the same year and between the same last-named persons, concerning the preliminaries of the convention of 1884.

In 1875 the allusion to the fixed line, in the past, appears evident by the terms of Article II, both of the draft for a convention presented by Mr. Mariscal to Mr. Cadwalader on March 25 and a second draft dated December 2 of that year. In both reference is unmistakably made to the dividing line astronomically fixed by the boundary commission of both Governments in 1852, which runs in the middle of the current of the rivers, according to their course at the time of their survey.

In regard to the case of Morteritos, the terms of the decision of the majority of this tribunal relieve the Mexican commissioner of the necessity of insisting here that the uniform attitude then shown by the Mexican Government was in the sense of the fixed line, inasmuch as it is thus recognized in such document.

Lastly, in the negotiations of the convention of 1884, a reading of the instructions which guided Mr. Romero, and c£ his correspondence with the American Department of State, does not leave room for doubt as to the position adopted by Mexico in regard to the nature of the boundary line from its original demarkation until then—that it was fixed and invariable and constituted to Mexico in her northern frontier an “ager limitatus,” as these properties are understood by civil and international law.

It being established that until 1884 Mexico considered the line of 1852 as fixed, is it admissible that in that year she would negotiate a treaty converting it into an arcifinious boundary with retroactive effect? If the declarations of the Mexican negotiator, Don Mafias Romero, are not sufficient to destroy all doubt in this respect, the following consideration would be more than sufficient: that Mexico could not in any manner have adopted a new boundary—supposing that the river had then ceased to be the boundary and was again taken as such—without protecting or ceding conveniently or by means of an express clause free from confusion, the rights of individuals and of the Mexican nation, to the lands embraced between the fixed line which was abandoned and the new fluvial line then adopted. As no such clause existed in the convention of 1884, in view of the fact that all the language of it refers indisputably to the future; and considering the nature of the negotiations that preceded it, the Mexican commissioner feels himself unable to accept the possible retroactivity of that convention.

Then, the opinion of the majority of the honorable commissioners is that the application which both Governments made of the convention of 1884 to the case of San Elizario and the 58 original bancos of the lower Bravo is another proof that the principle of the retroactivity had firm connection in the mind of the Mexican Government in respect to the application of that convenion. From such an opinion also dissents, and he believes with good reason, the Mexican commissioner.

In the first place, there is no reason to infer from the fact that the Mexican commissioner in 1894 presented the commission with the case of Sari Elizario, that the Government of Mexico, by this act, knowingly put under the jurisdiction of the treaty of 1884 the changes which occurred in the Bravo since 1857. The only thing that the cited procedure indicates is that Mexico submitted that question to the jurisdiction of the boundary commission established by the treaty of 1889. Now, the powers of such commission were not limited in any manner to the application of the principles of 1884, but they covered and they were declared “exclusive,” the resolution of all the questions or difficulties that in the future might arise between the two countries and in which affected the position of the dividing line, subject to the approval of both Governments. In San Elizario, without doubt, it was endeavored to ascertain if that so-called “island “pertained to Mexico or to the United States, and it certainly was the commission who had to decide it, whether the theory of a fixed or “of an arcifinious line in regard to that ground was in force. The case was discussed, then, in quality of question solely, and not of erosive or avulsive change. It is certain that the commission decided it, taking into consideration certain very slight alluvial changes, occurring between 1852 and 1857; but taking the terms of their judgment, and considering that the essential of it was the definition of the nationality of the ground, that was that which was asked of the commissioners, it is not to be believed that the Governments paid any attention to the insignificant divergences, shown by the consulting engineers between the courses of the river, as given by Salazar, Emory, and the survey of 1890, because such divergences might very well appear to be due to the imperfection of the methods employed by one or the other of the engineers, notwithstanding what the later commission said to the contrary.

Now, in regard to the resolutions adopted by the two Governments, in the matter of the bancos in the lower River Bravo, it is sufficient to destroy the inference that is alleged to be deduced as to the retroactivity of the convention of 1884, to say that the treaty in virtue of which it has been possible to approve said resolutions, expressly adopted as retroactive certain principles which called for “elimination” of those bancos in all those parts of the international dividing line which are constituted by the centers of the beds of the Bravo and Colorado Rivers. This condition of the internationality of the river remained plainly decided by that treaty in regard to the stretch of the Bravo embraced between its mouth and the confluence of the San Juan, due to the explicit adoption of the central line of its course of 1897 as boundary between the two countries and to the declaration that in future that boundary would follow the deepest channel, which was equivalent to converting into arcifinious this stretch of the Bravo. In regard to the rest of this river and to the Colorado, the principle of elimination will also be applicable with retroactive force in all those parts in which their course may be international, and in, no other, unless in the future some arrangement nay be made in virtue of which in the whole course of the Bravo and Colorado the fixed boundary of 1852 may be abandoned, and, as was done in the lower river, the real watercourse adopted as the new international boundary. In any event, the retroactivity that has resulted or might result from this should be attributed solely and directly to the express and clear clauses of the convention of 1905, that adopt it as a rule, but never to the power, direct or indirect, of that of 1884.

Such are the ideas of the Mexican commissioner on the fixedness of the dividing line of 1852, and the irretroactivity of the convention of 1884; but as he has been defeated in both points by the majority of the court, and the latter has left established that as a result of the sequel of the case, the only principles which should govern are those contained in that convention of 1884, this commissioner believed it to be his duty to amply express his opinion from the new point of view and had the fortune to have the presiding commissioner agree with him in regard to the matter in which the convention referred to should be applied to the case, which has permitted the court to dictate by majority a final sentence, that would otherwise have been impossible, since the attitude of the commissioner of the United States in regard to such application diverges diametrically from that of the presiding commissioner.

This opinion and the context of the sentence in the points agreed to, leave sufficiently and totally explained the position of the commissioner of Mexico in the present arbitral judgment.

(Signed)

F. B. Puga.

Minutes of meeting of the Joint Commission, June 15, 1911.

El Paso, Tex., June 15, 1911.

The joint commission met at the Sheldon Hotel, at 10 o’clock a.m. (meeting being held in Commissioner Mills’ room owing to his illness). Present, the commissioners, secretaries, agent of the United States, and assistant agent of Mexico.

The presiding commissioner stated that the Chamizal case submitted to the commission for decision having been discussed at length by the commissioners an award had been made by a majority of their votes.

Then, the members of the commission proceeded to sign the award, and the journal of the proceedings in the case, and the Mexican and American commissioner submitted dissenting opinions, all of which are made a part of this journal.

A copy of the award was delivered to the agent of the United States and the assistant agent of Mexico.

The agent of the United States asked permission to make the following statement:

May it please the commission: Although I have not had opportunity to consult with my Government and must therefore act upon my own motion, subject to the consideration and action of my Government, I deem it my duty, in order to safeguard the rights of the United States in the premises, with all deference, to make suggestion of protest against the decision and award which has just been rendered, upon the following grounds:

1. Because it departs from the terms of submission in the following particulars:

a. Because in dividing the Chamizal tract it assumes to decide a question not submitted to the commission by the convention of 1910 and a question the commission was not asked to decide by either party at any stage of the proceedings;

b. Because it fails to apply the standard prescribed by the treaty of 1884;

c. Because it applied to the determination of the issue of erosion or avulsion a ruling or principle not authorized by the terms of the submission or by the principles of international law or embraced in any of the treaties or conventions existing between the United States and Mexico;

d. Because it departs from the jurisdictional provision of the treaty of 1889 creating the International Boundary Commission.

2. Because the award is uncertain and indefinite in its terms, incapable of being made certain, and impossible of application.

3. Because the award fails to “state the reasons upon which it is based “in this that it fails to state specifically whether the alleged rapid and violent erosion by which it finds a portion of the Chamizal tract was formed comes within the terms of the treaty of 1884 or is governed by the principles of international law, and fails to state reasons for the inferential finding that it comes within the provisions of the treaty of 1884, in spite of the fact that these questions were repeatedly argued by agent and counsel for the United States.

4. Because of essential error of law and fact.

The Mexican commissioner expressed the thanks of his Government for the courtesy of the Government of the United States in permitting the use of the Federal court room for the meeting of the joint commission.

The special duties of the commission under the treaty of June 24, 1910, having been completed, the presiding commissioner declared the commission adjourned without day.

• E. Lafleur.
• Anson Mills.
• F. B. Puga.
• M. M. Velarde,
  Secretario.
• Wilbur Keblinger,
  Secretary.

1. The presiding commissioner has fallen into error (Opinion, p. 34) in suggestings that the American commissioner in 1896 compared the erosion at Chamizal to that which formed the bancos only, whereas the American commissioner in his opinion was referring to the erosion at every bend in the river throughout the 800 miles where it flowed through alluvial formation.

   The following are the words used by him:

   “In the opinion of the United States commissioner, if the changes at El Chamizal have not been ‘slow and gradual’ by erosion and deposit within the meaning of Article I of the treaty of 1884, there will never be such a one found in all the 800 miles where the Rio Grande with alluvial banks constitutes the boundary, and the object of the treaty will be lost to both Governments, as it will be meaningless and useless, and the boundary will perforce be through all these 800 miles continuously that laid down in 1852, having literally no points in common with the present river, save in its many hundred intersections with the river, and to restore and establish this boundary will be the incessant work of large parties for years, entailing hundreds of thousands of dollars in expense to each Government and uniformly dividing the lands between the nations and individual owners that are now, under the supposition that for the past forty years the changes have been gradual and the river accepted generally as the boundary, under the same authority and ownership; for it must be remembered that the river in the alluvial lands, which constitute 800 miles, has nowhere to-day the same location it had in 1852.” (Proceedings of International Boundary Commission, vol. 1, p. 93.)