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 25th and a second draft dated December 2d 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 of 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 Matias 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 fiftyeight 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 convention. 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 San 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 bouudary 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 In 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. 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 may 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, TEXAS, 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; (56) 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. M. M. VELARDE, Secretario. WILBUR KEBLINGER, Secretary. о |