Papers Relating to the Foreign Relations of the United States, 1925, Volume II

711.1215/566

The Secretary of State to the Ambassador in Mexico (Warren)

Washington, May 9, 1924.

No. 68

Sir: The Department encloses a copy of a letter of December 1, 1923, from the American Commissioner on the International Boundary Commission, United States and Mexico,⁵⁷ in which he advised the Department that he was forwarding under separate cover the minutes of the first formal meeting between the American and Mexican sections of the Commission since the resumption of diplomatic relations with Mexico.⁵⁸ It appears from the Commissioner’s letter that the Mexican Commissioner had requested that a survey be commenced south of El Paso, Texas, for the elimination of bancos under the Convention of 1905 between the United States and Mexico.⁵⁹ You will observe the statement of the American Commissioner in relation to the suspension of action looking to the elimination of bancos, and in this connection it may be stated that prior to January 6, 1911, at the instance of the Mexican Government, the Department agreed to instruct the Boundary Commission to suspend awards concerning bancos pending the settlement of the Chamizal ease,⁶⁰ and that by the Department’s letter to the American Commissioner of the date last mentioned,⁶¹ the Department indicated its acquiescence in the further suggestion of the Mexican Ambassador that this suspension should apply “only to the bancos lying above Bio Grande City and that the investigation and settlement of the case of bancos in the lower stream between Bio Grande City and the Gulf of Mexico proceed.”

Accordingly the suspension of awards in banco cases above Rio Grande City was continued pursuant to the Department’s letter of January 6, 1911, and has remained in force to the present time.

The Mexican Commissioner’s request that these banco cases be now taken up for investigation and settlement raises interesting and important questions.

The Department desires that the Boundary Commission resume the important work of the elimination of bancos suspended because of the differences between the two governments with respect to the Chamizal case, which unfortunately were not adjusted by the arbitration of 1911,⁶² but the resumption of this work would seem to be a matter attended with great difficulty unless Mexico has abandoned the novel theory of treaty interpretation promulgated by presiding Commissioner Lafleur, and together with this theory, her claim upon the Chamizal tract.

The record shows that at the first trial of the Chamizal case before the International Boundary Commission in 1894–1896, Mexico contended that the Chamizal tract was formed as the result of an avulsive change and that at the second trial of the case in 1911, Mexico contended for the so-called fixed line theory, that is, that the boundary remained in the thread of the channel of the Rio Grande as shown by the original surveys of 1852. However, Mr. Lafleur, the presiding Commissioner at the second trial, in his opinion and award found against both these contentions on the part of the Mexican Government, and advanced the entire novel, and in the opinion of the Department, the wholly unsound theory that Articles 1 and 2 of the Boundary Convention of 1884 between the United States and Mexico,⁶³ as interpreted by Article 4 of the Boundary Convention of 1889,⁶⁴ were not confined to changes brought about through “avulsion or erosion”, as set forth in the last mentioned article, but that there is another kind of change which might perhaps be called a change wrought by violent erosion that is to be assimilated as to legal effects to an avulsive change. The effect of the application of this theory of Commissioner Lafleur would be to dissever the boundary line from the river to substantially the same extent as the fixed line theory. It would separate the boundary line from the river as it runs today throughout a distance of about eight hundred miles, except at the point of intersection of the present channel with the channel of 1852. The practical results of this theory were admirably stated by General Anson Mills, the American Commissioner of the International Boundary Commission, at the first trial of the Chamizal case in 1896, when he was dealing with the then Mexican contention that the erosive change which took place at the Chamizal tract could be classified as an avulsive change. In the course of his opinion General Mills said:

“In the opinion of the United States Commissioner, if the change at El Chamizal has 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.” (Appendix to the United States Case, Chamizal Arbitration, page 211.)

Therefore, if the Lafleur theory of “violent erosion” is to be applied by the Boundary Commission, it would appear to be useless to begin the work of the elimination of bancos. On the other hand, it would of course be inconsistent and unjust for Mexico to claim the Chamizal tract if it be conceded that the work of the Commission is to proceed upon the American theory of “slow and gradual erosion” as opposed to “avulsion”, the Lafleur theory of violent erosion being reserved solely for use in the Chamizal case. The inconsistency of such contention on the part of Mexico is clearly shown by the case of the Weber banco mentioned by the American Commissioner in his letter of December 1, as one of the first bancos requiring the attention of the Commission. This banco is but a short distance from the Chamizal tract and is understood to have been formed by the rapid erosion which shifted the channel of the Rio Grande from its course in 1889 to its course in 1907. The river appears rapidly to have eroded the American bank at that point and built up an accretion on the south bank and then in 1911 to have made an avulsive change, thereby throwing the accretion to the Weber tract to the north or left bank of the Rio Grande and constituting a typical banco. If the American theory of avulsion and erosion is applied to this banco it will doubtless be held to the Mexican territory and then eliminated to the United States. If on the other hand the Lafleur theory of “violent erosion” be applied thereto, the banco would probably be adjudicated wholly or at least in great part to the United States in the first instance. In other words, if the American theory of construction is applied in this case the banco will be awarded to Mexico, thus preserving the Mexican private titles therein and then eliminated to the United States, but if the Lafleur theory is applied the banco will be held to be American territory and the Mexican titles to this property will be voided. The application of the Lafleur theory will apparently produce the immediate result in the case of this banco of a great injustice to the private persons interested and the ultimate result of confusion all along the boundary, while the application of the American theory will result in the doing of justice in the case of this banco. Nevertheless, it would be highly unjust for Mexico to invoke sound principles of construction in order to obtain the Weber banco while still clinging to her claim, based on precisely the opposite theory, to the Chamizal tract in the immediate vicinity.

In view of the foregoing it will be seen that a satisfactory adjustment of the questions indicated should be arrived at before the elimination of the bancos can well proceed, and the Department believes that the time has arrived when such an adjustment can be reached. You will observe that in his communication of December 1, 1923, the American Commissioner states that the Mexican Commissioner is of the opinion that “as far as our Boundary Commission is concerned the Chamizal zone case is disposed of and is now placed before the two Governments for such disposition as they may deem proper”. This expression on the part of the Mexican Commissioner would seem only to go to the extent of saying that the Chamizal case is disposed of as far as the Commission is concerned without committing the Mexican Government itself, but the Department has been informed by you in your letter of January 31, 1924,⁶⁵ that during the course of your informal discussions with the Mexican Commissioners during the summer of 1923 you brought the Chamizal case informally to the attention of one of them and that he advised you, after consultation with the Foreign Office, that the Mexican Government was disposed to abandon the controversy and recognized the correctness of the view of the United States that the award of Commissioner Lafleur could not be carried out. You further stated that the Mexican Commissioner said that the matter could be readily adjusted through the usual diplomatic channels when relations were restored.

In view of the whole history of the Chamizal controversy culminating in your informal discussions with the Mexican Commissioner, the Department believes that the occasion offered by the present proposals of the Mexican Boundary Commissioner for recommencing the surveys for the elimination of the bancos should be improved in an endeavor to terminate once and for all this longstanding and vexatious boundary question.

So far as the Chamizal case itself is concerned it could, of course, be settled simply by the unconditional relinquishment by Mexico of her claims on the tract, and it may be, in view of the attitude of the Mexican authorities as it appeared in the conversation of the Mexican Commissioner with you, that such an unconditional relinquishment can be brought about. Therefore, the Department suggests that, in view of what it believes to be the untenable character of Mexico’s claims to this tract when viewed in the light of the history of the practical construction placed upon the boundary treaties for many years, it is proper for you to attempt to obtain an unconditional relinquishment of the Mexican claims. It is suggested that this might well be done in your discretion by taking up the matter in informal conversations with the Foreign Office, referring to the proposals of the Mexican Boundary Commissioner for the re-commencement of the surveys for the elimination of the bancos and to your informal conversation with the Mexican Commissioner in the summer of 1923 with regard to the Chamizal matter and indicating that if, as the Department assumes from these conversations, the Government of Mexico is no longer disposed to press its claims to any portion of the Chamizal tract, there would seem to be nothing to prevent the immediate resumption of surveys for the elimination of the bancos so far as the appropriation available for the American Commission now permits and that upon the receipt by you of a note from the Foreign Office confirming the foregoing understanding appropriate instructions in that case will be sent to the American Boundary Commissioner.

However, if it appears to you as a result of your informal conversations with the Foreign Office that such an unconditional abandonment of Mexico’s claims to the Chamizal tract cannot be obtained, but that Mexico is disposed now as in the past to insist upon some consideration for this abandonment, you will inform the Foreign Office that while the American Commissioner on the International Boundary Commission will be instructed to make joint surveys in banco matters to the extent permitted by the appropriation, the Department cannot instruct him to attempt to decide banco cases with a view to the elimination of the bancos concerned until the Chamizal case is disposed of and the questions of treaty construction connected therewith settled in such a manner as to allow the Boundary Commission usefully to function in this respect. In these circumstances the Department also desires you to take up at once the general negotiations for the settlement of the Chamizal case and other boundary questions near El Paso, Texas, at the precise point where they were interrupted in 1913 and to present to the Mexican Government and earnestly urge upon its consideration the draft convention which is herewith enclosed. This draft convention was taken up substantially in its present form by the Department in the spring of 1913 for presentation to the Mexican Government in response to the memorandum handed by the Mexican Embassy to the Department January 27, 1913 (Foreign Relations of the United States 1913, page 971) and in the light of subsequent telegraphic correspondence, particularly the Department’s telegram to the Embassy of March 3, 1913, 8 p.m. (Foreign Relations 1913, page 973), the Embassy’s telegram of March 13, 1913 (Foreign Relations 1913, page 974), the Department’s instruction of March 27, 1913 (Foreign Relations 1913, page 975), and the Embassy’s telegram of March 28, 1913 (Foreign Relations 1913, page 975).

It may be observed that the draft of the convention embodies the fundamental ideas of the Mexican Embassy’s memorandum of January 27, 1913, together with the Department’s proposed modifications of March 3, 1913, and the Department believes that this convention offers not only a just solution of the Chamizal case, but of the entire boundary question at El Paso growing out of river changes at the so-called Cordova tract, as well as at the Chamizal tract.

With regard to the Chamizal tract itself it is very important to bear in mind in discussing the convention that this Government took the firm and unalterable position that the so-called Chamizal Award of 1911 was both impossible of performance in fact and utterly void as a matter of law. This position was taken by the American Commissioner and the American Agent at the time the decision was rendered (Proceedings of the International Boundary Commission for June 15, 1911, Foreign Relations 1911, page 597) and was promptly ratified by the Department of State in a memorandum to the Mexican Embassy of August 24, 1911 (Foreign Relations 1911, page 604 [598]) and announced by the President of the United States in his Annual Message of December 7, 1911 (Foreign Relations 1911, xi) and admits of no discussion so far as this Government is concerned. It will be observed that the before-mentioned Mexican memorandum of January 27, 1913 frankly provides in its first proposition for the adherence of both Governments “to the attitudes they have respectively taken on the matter and to the scope given by each to the final award”. This fundamental concept is scrupulously followed in the proposed convention and it is of the utmost practical importance that it should be followed, since if this Government even for an instant admitted the validity of the Lafleur Award of 1911, although Mexico in the next instant ceded the Chamizal tract to the United States, the result might be to cast doubt upon the private American titles to the lands in the tract upon which thousands of people make their homes and which are now understood to be worthy, with the improvements which have been placed thereon, many millions of dollars.

Aside from the extinguishment of Mexican claims on the Chamizal tract provided for in the convention, another point of large importance to the continued growth and development of the City of El Paso is the provision therein contained for drawing the boundary line so as to throw the so-called Cordova tract into the jurisdiction of the United States. This tract, although upon the American side of the river as it runs today and immediately adjoining the City of El Paso, is, in accordance with the principles of treaty construction which the United States has always maintained, unquestionably Mexican territory.

The Department is informed that the Cordova lands, owing to their geographical position, have become an ideal base of operation for persons engaged in the smuggling of liquor, narcotics, and aliens into the United States, and the resulting situation constitutes a nuisance to both Governments and a menace to the peace and good order of the border cities of El Paso and Juarez as has been clearly demonstrated by unpleasant incidents which have occurred at that point.

Aside from remedying this situation by making the river as it runs the boundary between El Paso and Juarez, the inclusion of the Cordova lands within the United States would also make it possible, if it should be found to be desirable, to bring the railroads into El Paso along the river bank instead of through the center of the city as at present, and without expressing any opinion as to the desirability of this change, which is for the consideration of the citizens of El Paso, it would unquestionably be advantageous if this question could be determined upon its technical and economic merits without reference to the situation of the international boundary line.

For all these reasons the Department regards the bringing of the Cordova lands into the United States as of great public utility and one of the principal inducements for agreeing to a convention following the general lines proposed by Mexico in 1913 and including compensation under certain conditions and in a limited amount for the Mexican private titles in the Chamizal tract, the validity of which the Department has always denied. There is enclosed a memorandum⁶⁶ as to the area and value of the lands transferred or relinquished under the proposed draft of a boundary convention. This memorandum was prepared in 1913 at the same time as the proposed convention, but it is believed that any changes in value which may have taken place since that time are of no particular consequence inasmuch as the Mexican negotiators have always disclaimed the idea of accepting money in return for sovereignty, and the negotiations have proceeded upon the basis of an exchange of a substantially equal amount of acreage which is to be for the mutual benefit of both countries as in the case of the elimination of the bancos, in addition to any compensation which may be equitably due on account of private titles. As is pointed out in the enclosed memorandum as to the area and value of the land, there is no compensation due under this head unless it be in the case of the disputed Mexican titles in the Chamizal tract, and the compensation should be made for these, if at all, only as proposed in the convention, that is, in an amount not to exceed the assessed valuation of the lands without improvements at the date of the Chamizal Award. Any subsequent increase in the value of the lands in the Chamizal tract is, therefore, immaterial.

With respect to the maps referred to in the draft convention it may be said that these maps were taken by Mr. Summerlin⁶⁷ with the copy of a draft convention on the Chamizal matter which he brought to Mexico from the Department in May, 1921. Reference is made to this by Mr. Summerlin in his letter to Mr. Hanna of September 29, 1923,⁶⁸ and it is presumed that these maps are still in the Embassy’s possession. Should this not prove to be the case, the Department upon being so informed will forward other maps.

With respect to the memorandum of area and value which is enclosed it may be observed that the Department’s information indicates that there may have been a considerable diminution of the thirty acre tract near El Paso, south of the artificial cutoff referred to in paragraph la of that memorandum and it may be in view of the constant erosion which has taken place at that point that little, if any, of this tract still remains. An official joint survey would be required to ascertain the fact in this respect but if any of the tract is still in existence convenience clearly calls for its transference to Mexican sovereignty and even if the tract has wholly disappeared through the shifting of the river to the south at this point so as to entirely destroy the tract and pass it under the river to the American side no harm can be done by establishing formally and definitively in the treaty that the running river is the boundary line at this point. Moreover the tract is so insignificant in area and of so little comparative value that its disappearance in whole or in part would seem to have no material bearing upon the question of the fairness of the territorial exchange offered to Mexico, since the area of the Horcon Bar which it is proposed to transfer to Mexico is about one-third greater than the area of the Cordova tract which it is proposed to transfer to the United States.

Finally, the Department would point out that the negotiations for the disposition of this boundary matter have been pending for a number of years and have more than once failed of conclusion when apparently on the point of successful consummation by reason of events having no relation to the merits of the questions under consideration, such as the overthrow of the Madero Government in 1913.⁶⁹ Therefore, the Department regards it as of great importance that the present favorable opportunity arising from the recently renewed and very friendly relations between the two governments taken in connection with your own cordial personal relations with the Mexican authorities should be taken advantage of for bringing these negotiations to a successful conclusion with the least possible delay. The Department deems it particularly desirable that if practicable these negotiations be concluded before the opening of the sessions of the General Claims Commission to be constituted under the convention recently entered into with Mexico.

For your convenient reference with respect to the entire history of the Chamizal controversy the Department encloses a copy of a memorandum on the Chamizal negotiations prepared by Mr. William C. Dennis,⁷⁰ who was Agent of the United States in the Chamizal Arbitration of 1911 and thereafter Counsel for the Cotton estate and other American property owners in the Chamizal tract, and more recently also for certain American interests in the Cordova tract.

I am [etc.]

Charles E. Hughes

[Enclosure]

Draft Convention for the Settlement of the Chamizal Case and for the Better Definition of the International Boundary at Certain Points Along the Rio Grande

The United States of America and the United Mexican States, being desirous of adjusting on a basis of practical conveniences certain differences that have arisen and still subsist between them, with respect to the location of a portion of their International Boundary Line, and with respect to the validity and binding effect of the decision of the International Boundary Commission in the Chamizal Case of June 15th, 1911, the Government of the United States of America maintaining that said decision is absolutely invalid for all purposes for the reasons set forth in the dissenting opinion of the American Commissioner and in the protest of the American Agent, and the Government of the United Mexican States maintaining the validity of the said decision, have resolved to conclude a Convention for that purpose and have appointed as their respective plenipotentiaries:

The President of the United States of America
. . . . . . . . . . . . . . . . . . . .
and the President of the United Mexican States
. . . . . . . . . . . . . . . . . . . .

Who, after having exhibited their respective full powers and having found the same to be in due form, have agreed upon the following articles:

Article I

The High Contracting Parties adhere to the attitude they have heretofore taken with regard to the validity of the decision of the International Boundary Commission in the Chamizal case of June 15, 1911, but in order to terminate the differences hereinbefore mentioned, and by way of compromise, as well as in view of the fact that the Chamizal Tract is an integral part of the City of El Paso, they hereby formally and finally recognize the following described lines as the true international boundary at the points therein mentioned:

Starting from the point where parallel 31 degrees and 47 minutes north latitude intersects the channel of the Rio Grande, the International Boundary Line follows the center of the normal channel of the Rio Grande to a point as near as may be immediately below the more easterly of the two tracts of land, lying between the abandoned channel of 1901 and the artificial cut-off, which are designated “A” and “B” on a map annexed to the present Convention (Map No. 1)⁷¹ and signed in duplicate by the two plenipotentiaries. This boundary line is understood to be arcifinious and is substantially as shown by the broken red line on this map.

At the artificial bar known as El Horcon, the International Boundary Line follows the center of the normal channel of the Rio Grande. This boundary line is understood to be arcifinious and is substantially as shown by the broken red line on a map annexed to the present Convention (May Number 2), and signed in duplicate by the two plenipotentiaries.

Article II

In view of the difference of opinion with respect to the validity of the decision of June 15, 1911 of the International Boundary Commission in the Chamizal Case shown in the Preamble and in Article I of the present Convention, the High Contracting Parties agree that the decision does not establish any precedent whatever as to the construction to be given to the boundary treaties and conventions in force between the two countries.

Article III

Whereas the Mexican Government contends that the parts of the Chamizal Tract covered by private titles of Mexican origin prior to the date of the decision of June 15, 1911, of the International Boundary Commission in the Chamizal case must be considered as being under a valid title, and whereas the Government of the United States of America on the other hand does not acknowledge the validity of these Mexican private titles, the High Contracting Parties, in order to dispose of this question, and without giving any force or effect to the said decision, agree by way of compromise as follows:

A commission to be established by the two governments, and composed of three representatives, one appointed by the Government of the United States of America, another by the Government of the United Mexican States, and a third by the two so appointed, shall examine these alleged Mexican private titles from the standpoint of Mexican law for the purpose of determining which if any of these titles would be valid under Mexican law if the Chamizal tract were assumed to be Mexican territory.

This commission shall meet at El Paso as soon as possible after the exchange of the ratifications of this convention. It shall be empowered to make such rules and regulations as it may deem necessary for the transaction of business. The decisions of the Commission, whether rendered unanimously or by majority vote of the commissioners, shall be final and conclusive upon both governments and without appeal. Only such claims shall be considered as are presented with the formal approval of the Mexican Minister of Foreign Relations within a period of six months after the date of the first meeting of the Commission.

Each Government shall pay the expenses of the commissioner appointed by it, and all other expenses of the Commission, including the compensation of the third member, shall be borne by the two Governments in equal moieties.

When any private title shall have been found to be valid as aforesaid, the Commission shall endeavor to locate the land covered by such private title and shall appraise the value of all land so located at an amount not in excess of the appraised value thereof as fixed by the tax assessors in El Paso at the date of the decision of the International Boundary Commission in the Chamizal case of June 15, 1911, without taking into account improvements of any description which may be found thereon except those if any made by claimants under Mexican private title prior to the date of the said decision of the International Boundary Commission, and the value so determined shall be paid by the Government of the United States of America to the Government of the United Mexican States for distribution in accordance with the findings of the Commission. The payment by the Government of the United States of America to the Government of the United Mexican States of the sums awarded by the Commission shall forever extinguish all alleged Mexican private titles in the Chamizal Tract and satisfy all claims whatsoever against the United States of America or its nationals in relation thereto.

Article IV

The Government of the United Mexican States recognizes the validity of the private titles derived from the State of Texas to the lands in any small tract southerly from the present channel of the Rio Grande within the terminal points mentioned in the second paragraph of Article I of the present Convention and between the said present channel and the abandoned channel of 1901, designated as “B” on map Number 1, mentioned in Article I of the present Convention, and also the validity of such titles to lands located in the artificial bar known as El Horeon, designated “C” on map Number 2.

Article V

The Government of the United States of America recognizes the validity of the titles derived from the Government of the United Mexican States in the so-called Cordova Tract, being the tract bounded westerly, northerly and easterly by the abandoned channel of the Rio Grande of 1901 and southerly by the present channel of the Rio Grande, and designated “A” on map Number 1.

Article VI

The present Convention shall be ratified by the High Contracting Parties in accordance with their respective constitutions. The ratifications of this Convention shall be exchanged in . . . . . . . . . . as soon as practicable, and it shall take effect on the date of the exchange of the ratifications.

In witness whereof, the respective Plenipotentiaries have signed this Convention and have hereunto affixed their seals.

Done in duplicate in . . . . . . . . . . , this . . . . . day of . . . . . . . . . . , 1921.

57. Not printed.
58. For correspondence concerning recognition of the Obregón government, see Foreign Relations, 1923, vol. ii, pp. 522 ff.
59. Ibid., 1907, pt. 2, p. 837.
60. For previous correspondence concerning the Chamizal case, see ibid., 1913, pp. 957 ff.
61. Letter of Jan. 6, 1911, not printed.
62. See Foreign Relations, 1911, pp. 565 ff.
63. Malloy, Treaties, 1776–1909, vol. i, p. 1159.
64. Ibid., p. 1167.
65. Not printed.
66. Not printed.
67. George T. Summerlin, Counselor of the Embassy in Mexico.
68. Not printed; Matthew E. Hanna was Chief of the Division of Mexican Affairs.
69. See Foreign Relations, 1913, pp. 692 ff.
70. Not printed.
71. The maps accompanying this convention have not been reproduced.