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EL CHAMIZAL: TH£ HISTORY OF A
BOUNDARY PROBLEM BETWEEN
MEXICO AND THE UNITED STATES

Thesis {'or “to Degree 0% M. A.
MECHIGAN STATE UNIVERSITY

Karl. Hofmaran
1953

 

THESIS

 

  
 

LIBRARY

Michigan State
University

 

 

 

_‘ - _ h..__A____ _.
. .—. _

15

ABSTRACT

EL CHAMIZAL: THE HISTORY OF A BOUNDARY PROBLEM
BETWEEN MEXICO AND THE UNITED STATES

by Karl Hofmann

Since its creation in 1848 the Rio Grande boundary has divided
the United States and Mexico. The changing nature of the course of
this river has given rise to a number of boundary disputes. One, involving
the question of sovereignty over the Chamizal tract near El Paso, Texas,
has been especially important for its longevity, the" location of the area
involved, and its incorporation of nearly all the ideas advanced to solve
other boundary disputes along the Rio Grande border. Most of the prob-
lems connected with‘El Chamizal arose, because the treaty of 1848
between. Mexico and the United States had neglected to furnish standards
for dealing with the frequent changes in the channel of the river. - The
manner of viewing such changes was left undefined and statesmen were on
their own when they had to decide whether they were dealing with a natural
boundary subject to international law, or with an artificial boundary,
which would remain permanently fixed, despite variations in the course
of the river.

The negotiations surrounding the Chamizal dispute often appeared
to be a maze of self-contradictory positions. Two ways of approaching
the problem of change on the Rio Grande boundary, however, do stand out.
The first, most frequently held by the United States, attempted to solve
boundary questions such as arose during the discussion of the Chamizal
problem by reference to international law. The second way, advanced

almost exclusively by Mexico, held that the boundary as established by

l

Karl Hofmann

the Treaty of Guadalupe Hidalgo in 1848 was astronomically fixed and
unchangeable. Both sides, however, complicated matters by changing
positions and by setting conflicting precedents.

In treating the history of the Chamizal dispute this paper hopes
to present not only an account of the many negotiations which surrounded
the attempts at settling the problem, but also intends to enumerate,
analyze and clarify the technical, philos0phical and legal factors which
made up the dilemma. The author tries to achieve this goal by discussing
the positions taken by the two parties at each successive stage of the
negotiations .

In 1911 both sides adopted positions which seemed practically
irreconcilable. . For almost fifty years thereafter prospects for a solution
of the Chamizal problem looked so forbidding that no earnest attempt was
made by either side to reopen negotiations. Yet in 1963 a solution to the
Chamizal dispute seems imminent. The nature of this pending solution
and its relationship to earlier attempts at solving the Chamizal problem

are the topic of the last part of this essay.

EL CHAMIZAL: THE HISTORY OF A BOUNDARY PROBLEM
BETWEEN MEXICO AND THE UNITED STATES

BY

Karl Hofmann

A THESIS

Submitted to the College of Arts and Letters
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Department of Hi story

1963

ACKNOWLEDGEMENT

I would like to express my gratitude to
Professor Harold B. Fields for his en-
couragement, guidance and help during
the preparation of this thesis.

**************

ii

TABLE OF CONTENTS

Page
INTRODUCTION . . . . ........ . . . . . . . . ..... 1
GEOGRAPHICAL DESCRIPTION AND SETTLEMENT OF THE
EL PASO AREA. . . . . .................. 7
FIRST INCIDENTS. . . . . . . . . . . ............. 16
EL CHAMIZAL: CASE NO. 4. . . ......... . . . . . . 27
ARBITRATION OF EL CHAMIZAL ........ . . ..... 41
SOLUTION............. ............... 59
CONCLUSION . . . . . .......... . .......... 61
ANNOTATED BIBLIOGRAPHY ..... . . . . . . 66

iii

INTRODUCTION

The Rio Grande, as a boundary between the United-States and
Mexico, has had a history as tortuous as its course. This dividing line
was adopted by the Treaty of Guadalupe Hidalgo in 1848 l and was sur-
veyed by a joint Mexican-American boundary commission in 1852 and
1853. Article V of this treaty relates especially to the boundary between ,
the two countries and contains a definition of the sector following the
Rio Grande:
The boundary line between the two Republics shall commence
in the Gulf of Mexico, three leagues from land, opposite the mouth
of the Rio Grande, otherwise called Rio Bravo del Norte, or
opposite the mouth of its deepest branch, if it should have more
than one branch emptying into the sea; from thence, up the middle
of that river, following the deepest channel, where it has more
than one, to the point where it strikes the southern boundary of
New Mexico. . . .2
During the thirty years that followed the survey, the river
changed course quite frequently. This was especially true in the El Paso-
Juarez valley. A number of boundary disputes arose which involved
rights of sovereignty over tracts of land transferred from one bank of the
river to the other because of a change incourse. El Chamizal, the sub-

ject of this study, is perhaps the most prominent of the many disputed

territories that arose thus in the E1 Paso-Juarez valley.

 

1U. S. ,. Statutes at Lage and Treaties of the United States of
America, from December 1, 1845, to March-3, 1851; Arranged in Chrono-
l_ogica1 Order; with References to the Matter of Each Act and to the‘Subse-
quent Acts on the Same Subject (Boston, 1862), Vol. IX, pp. 922-942--
hereafter cited as Statutes at Largf.

 

 

zStatutes at Large, Vol. IX, p. 925.

 

l

Article V of the treaty of 1848 had not considered the well-known \
capricious behaviour of the Rio Grande. Consequently there was no uni-
form approach to solving the boundary problems which arose because of
changes in the course of the river. Both sides used arguments and
interpretations of Article V aimed at furthering their respective claims.

Prominent among these interpretations was the position fre-
quently held by Mexico that the boundary along the Rio Grande was
astronomically fixed. - No change in the course of the river was to have
any effect on the boundary line which would always correspond to the
course of the river as charted in 1852 and 1853. The Mexican argument
for an immutable boundary was based on the final section of Article V
which provided that "in order to designate the boundary line with due
precision, upon authoritative maps, and to establish upon the ground
landmarks which shall show the limits of both republics . . . the two
Govermnents shall each appoint a commissioner and a surveyor who . . .
shall meet at the port of San Diego, and proceed to run and mark the said
boundary in its whole course to the mouth of the Rio Bravo del Norte. "
According to the Mexican viewpoint a boundary which was permanently
marked and monumented by definition could not be affected by changes in
the topography over which it ran. The Rio Grande frontier was as
artificial as that section of the border which runs from San Diego east-
ward across the desert. The middle of the river, therefore, could be
the boundary only as long as it matched the line drawn on the surveyors'
maps of 1852 and 1853.

The United States most often held that the treaty of 1848 did
not create an artificial boundary along the Rio Grande, but took advantage
of what was offered by nature. Hence the American opinion was that the
w Rio Grande was a natural boundary which for its regulation depended on

accepted principles of international law.

Geographers generally mark three types of river behaviour.

- All three forms can be found in the Rio Grande valley. First, there
are those rivers in which the channel is actively cutting through rock.
This applies particularly to rivers which flow through narrow channels
or throughcanyons. . The second type consists of rivers that are more
or less stable. They frequently meander through broad valleys,

neither cutting down one bank nor building up the other rapidly. The
body of international law dealing with changes in the course of rivers
most frequently refers to this type of meandering behaviour. Lastly
we find rivers which are actively building their beds. They usually
carry heavy loads of sediment which fill the channels causing the rivers
to overflow. A labyrinth of braided courses develops, ever changing,
and often without a persistent main channel.3 The‘Rio Grande especially
the E1 Paso-Juarez valley is characterized by this last type of river
behaviour.

In .time the number of unsolved boundary disputes increased,
causing continuous friction between the Mexican and American settlers
whose properties were affected by the erratic behaviour of the river.

An international agreement setting up some standard for dealing with

the situation was clearly needed. The result was the convention of 18844
which reaffirmed Article V of the treaty of Guadalupe Hidalgo. -It adopted
international law as a criterion for dealing with boundary problems caused

by changes in the course of the river. Articles I and II of the convention

 

f

3Stephen B. Jones, . Boundary MakinLA Handbook for Statesmen,
Treaty Editors and Boundary Commissioners, Carnegie Endowment for
International Peace, Division of International Law, Monograph No. 8
(Washington, . 1945), p. 119.

 

i" ‘U- S. , Statutes of the United States of America, Passed at the
First Session of the Forty-Ninth.C3n:gress, 1885-1886 and Recent Treaties
and Executive Proclamations (Washington, 1886), Vol. XLIX, pp. 37-40--
hereafter cited as Statutes.

 

/

of 1884 refer to international law and adopt the principles of aluvion and

avulsion.

Article I

The dividing line shall forever be that described in the aforesaid
treaty [1848] and follow the center of the normal channel of the
rivers named, notwithstanding any alterations in the banks or in
the course of those rivers [Rio Colorado and Rio Grande], provided
that such alterations be effected by natural causes through the slow
and gradual erosion and deposit of alluvium and not by the abandon-
ment of an existing river bed and the opening of a new one.

Article 11

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 line at the time of the survey made under aforesaid treaty,
. shall produce no change in the dividing line as fixed by the surveys
of the International Boundary Commission of 1852; but the line then
fixed shall continue to follow the middle of the original channel bed,
even though this should become wholly dry or be obstructed by
deposits.5 /
Aluvion can be broken down into two distinct processes of change.
First, there is erosion or the cutting away of soil from the river bank.
Accretion, the opposite of erosion, is the adding of sediment to a river
bank. The combination of these, that is the cutting away of land from one
side and the subsequent adding of it to the other, is called aluvion.
However, international law seems agreed on an additional factor which
must be-present to have true aluvion. The erosive and accretive changes
must be slow and gradual.
- Land which (in this manner is transferred from one side of a river

to the other belongs to the owner of the bank to which it is added. In other

words the property line continues to follow the river banks, the center of

 

SStatutes, XLIX, p.. 38.

the main channel, or whatever line may have been provided for in a
boundary treaty.

The principle of aluvion as defined above has beenstated and
accepted by various authorities on international law since the days of
the late Roman'Empire. The Roman lawyer Gayus states in the
- Institutas that as long as the addition of sediment is gradual and invisible
to the eye it would benefit the personvwhose property was increased.
Another concretedescription of the nature of aluvion appears inLaw XXVI

of Las Siete Partidas or the Laws of Aljhonso X of Spain. . It defines

 

 

aluvion very clearly as the increase of property due to sediment originat-
ing from another property. To be called aluvion it needs one character-
istic however: slowness and imperceptibility.6 Lastly, Hugo Grotius, a
17th century Dutch scholar, states in relation to pr0perty rights affected
by aluvion that "in arcifinious lands, where the bounds are formed by
nature, any gradual change in the river makes a change also in the
boundary, and whatever accession is given tothe river on one side, it
will also belong to the possessor of the land on that side. "7
Avulsion, in contrast to aluvion, covers a variety of rapid and

often destructive changes in the course of a river. _Article 559 of the

Code de Napoleon has the following to say about the nature of avulsive

 

change and its effect on property rights: "If a river or stream, navigable
or not, tears suddenly a considerable and recognizable section of river
frontage away and leaves it with an inferior land or with the opposite
shore, the owner of the torn away part can reclaim his property. "

Las Leyes de Partidas and the Institutas also treat avulsive changes in

 

the same manner as Article 559.8

 

6A1berto MariaCarrefio, Mexico y loerstados Unidos de America
(Mexico, 1922), pp. 397-398.

 

7Hugo Grotius, The Rights of War and Peace: Including_the' Laws
-of Nature and of Nations, trans. A. C.. Campbell (Washington, 1901), pp.
106-107.

 

 

8Carrefio, Mexico, pp. 399-400.

 

 

Another type of avulsive change is recognized by international
law and consists of the river's abandonment of the streambed and the
cutting of a new one. . The Institutas which recognize the different nature
of this type of change, deal with it in the following manner: "If, having
abandonedcompletely its natural course, the river begins to flow some-
where else, the former river bed remains the boundary between
properties along its banks, to the extent to which each side had property

along the banks. . . . " Article 563 of the Code de Napoleon makes the

 

same provisions as to the ownership of land.9

Grotius, who agrees entirely with Gayus and the Code de
Napoleon concerning changes in the thalweg or the river bed, makes some
very interesting statements as to where avulsion ends and aluvion begins:
". . . in doubtful cases the territories bordering upon the river ought to

be considered as arcifinious because nothing can be a more apt mark of

. distinction than those impassable bounds assigned by nature. "1° - In other

words, visible but moderate changes could fall under the heading aluvion.
This is good to bear in mind for it constituted a part of the American
argument during the arbitration of the Chamizal case. The United States
at that time insisted that the phenomenon of rapid erosion was distinct
from avulsion and properly belonged in the same category as aluvion.
The principles of aluvion and avulsion were adopted by the con-
ventionof 1884 in the hope of solving boundary problems caused by changes
in the course of the Rio Grande. In most cases the high expectations of
the men responsible for the convention of 1884 were borne out. One
problem, however, the dispute over the Chamizal tract near‘El Paso,
seemed even more unwieldy after 1884. ‘For almost eighty years after

the signing of the convention of 1884, the Chamizal problem was to defy

 

9Carrefio, Mexico, pp. 399-400.
”Grotius, The Rights of War and Peace, p. 107.

 

all attempts at solution. -Only in 1963 was a way found of resolving the
question. .The turbulent history of El Chamizal, the positions taken

by the United States and Mexico during the negotiation of the dispute, and
the justification of such positions by treaty and precedent are the subject

of this thesis.

GEOGRAPHICAL DESCRIPTION AND SETTLEMENT
OF THE EL PASO‘AREA

The El Paso-Juarez valley, where the Chamizal tract is located,
derives its name from the two principal cities in that area. It stretches
from the point where the Rio Grande breaks through the pass dividing
the Franklin mountains and the Sierra Maestra Oriental to the site of
old Fort Quitman. From there on the river again flows through mountain-

I

one country. 1 The elevation of the river at El Paso is 3710 feet above

sea level. (At this altitude winters can be quite severe in character and

. . 1
occasmnally the river freezes over. 2

The geological characteristics
of the valley are those of a flood plain. A flood plain is created by a
river which carries a large amount of silt and gravel filling up its bed
with sediment. In the past this resulted in frequent overflowing of the
channel during the flood season in June and July. -New river beds were
formed as a result of these floods. 13 Around the turn of the century and

during the nineteen-thirties the river was tamed through diking, .levees ;

and canalization. . Both governments have spent considerable effort and

 

' 1rlLaura Gilpin, The Rio Grande: River of Destiny; An Interpre-
tation of the River, the Land, and the People (New York, 1949). PP.
162-172. ‘

 

12Paul Horgan, Great River: The Rio Grande in- North American
History (New York, 1954), Vol.- I, p. 248.

 

13U. S- Congress, Senate, 34th Congress, lst Session, Executive
Document No. 108, Vol, XX, pt. 1, pp. 90-92, "Report of the United
States and Mexican Boundary Survey Made under the Direction of the
Secretary of the Interior, by Major William H. Emory. "

 

money on river rectification and flood control. 14
Several international dams across the Rio Grande provide water
for the irrigation of the flourishing agriculture of the valley. -In 1949
there were over 82, 000 acres under cultivation on the Texan side of the
river and 52, 000 acres on the Mexican side. The main products grown
in the valley are cotton, grapes, fruits, wheat and vegetables. 5
At the site of the present day Ciudad Juarez we find the oldest
settlement in the valley. The nameiof this border city was changed in
1888 from El Paso del Norte to Ciudad Juarez because of the confusion
over such similar names as El Paso del Norte,. Chihuahua and El Paso,
- Texas. The Mexican El Paso was renamed after Benito Juarez who had
his seat of government in this town during the reign of the emperor
Maximilian. 1‘
Much new building and business activity has taken place at
Ciudad Juarez since the nineteen forties and the city has grown in
importance because of the increasing commerce between the two countries.
Two railway and two automotive bridges span the Rio Grande making the
towns of Juarez and El Paso not only important rail centers, but main
crossing points for the ever increasing tourist traffic. 17
The city of El Paso, Texas, received its name in 1873.
It stands on the site of the former Franklin, which was a small settle-
ment established by Americans on the north bank of the Rio Grande

following the treaty of 1848. . From an insignificant military and western

outpost this settlement grew rapidly into a metropolis with the advent of

 

14G. Frederick Reinhardt, "Rectification of the Rio Grande in
the Juarez-El Paso Valley,- " American Journal of International Law, Vol.
XXXI. (January, 1937), pp. 44-54; Gilpin, Rio Grande, p. 170.

 

 

”Gilpin,.Rio Grande, p. 241.

 

mGilpin, Rio Grande, p. 168.

 

”Gilpin, Rio Grande, p. 168.

 

railroads in 1881. Because more than half of its population is of
Mexican extraction, El Paso is of doubtful American character. 18'

Aside from processing much of the agricultural produce of the
valley, El Paso is also a center of heavy industry. Practically the
only processing of metal in the entire Rio Grande valley takes place at
El Paso, now the largest city along the river. The city has a huge
copper refinery and an ore smelter where metals from both the United.
(States and Mexico are processed. A cement factory using clay from
the north bank of the river also is of importance. 19 I

The first mention ”of the El Paso area appears in the tale of
four conquistadores. They were the only survivors of an abortive
expedition into Indian territory organized in 1528. Under the leader-
ship of Panfilo, de Narvaez this expeditionary force of several hundred
men had set out from Havana to explore the unknown land mass between
Florida and the Rio Grande. Nothing was heard of the expedition for
seven years. . Finally in 1535 four ragged men appeared at a Spanish
out-post in northern Mexico. From their story we know that they had
been picked up by friendly Indians camping in the vicinity of El Paso.
These Indians apparently lived a semi-nomadic existence, for they
were growing corn in the valley of the Rio Grande during part of the
year and went on long hunting trips for months on end.”

Gaspar Castafio de Sosa, a Spanish captain of cavalry, is
credited with making the second visit to the El Paso region. In 1590
he engaged in an unauthorized expedition into the pueblo country of the

northern Rio Grande. On his way north he travelled through the valley
of El Paso.21

 

“Gilpin, Rio Grande, pp. 162-163.

 

”Gilpin,. Rio Grande, pp. 164-165-

 

onorgan, Great River, Vol. I, p. 96.

 

21Horgan, Great River, Vol. I, p. 157.

 

10

Don Juan de Ofiate, conquerorand first Captain General of
New'Mexico, discovered a ford across the Rio Grande at El Paso on
'May 4, 1598. After his army had crossed he proceeded northward
following the river. Within a day he marched through the pass dividing
the Sierra Maestra and the Franklin mountains. Accordingly he named
the area the ford of El Passo [sic] del Norte.”

Franciscan missionaries, following in the footsteps of Ofiate's
conquering army, arrived at the Northern Pass in the winter of 1616 to
1617. They were on their way to the newly subdued pueblo country.

At El Paso they encountered parties of Manso Indians engaged in fishing
and hunting. From a report sent back by the friars we also know that
the river‘was frozen over solidly. This natural phenomenon caused the
leader of the Franciscans to express his belief that the Rio Grande must
have its origin at the North Pole.23

As soon as the missions in‘New Mexico were established, supply
trains heading north crossed the ford and pass with regularity. The
Franciscans, worried about safe communication with New Spain, re-
quested that a town be founded at the Northern Pass with a mission
station to christianize the local Indians. - Nothing came of the request
until 1659 when a mission complex was erected near El Paso del Norte.
According to a contemporary chronicler it consisted of a church made
of "branches and mud and a monastery thatched with straw. " In 1668
the makeshift church of the mission was replaced by a more substantial
edifice dedicated to "Our Lady of Guadalupe of El Paso. "7"

El Paso soon became the first wholly Spanish town along the

- Rio Grande. - In the beginning it existed to meet the needs of the mission

 

zzHorgan, Great River, Vol. I, p. 166.

 

23Horgan, Great River, Vol. I, p. 224.

 

24'Horgan, Great River, Vol, I, pp. 248-260.

 

11

with its vineyards, its irrigated fields and pastures. As the importance
of the pass as a gateway to the north increased, roads drew to it from
all directions. By 1670 a town had grown around the mission and the
parish books record weddings, baptisms and burials of Spanish
settlers.“
In 1680 El Paso became the capital of the province of New Mexico.
During the following ten years the missions of Ysleta, Socorro, San Lorenzo
and San Antonio de Senecfi were founded near El Paso.“ Almost a century
later in 1764, a Franciscan inspector called the mission of Guadalupe at
El Paso "the flower of them all, both on account of its fruits and garden
products and because of its climate. " Indian farmers under the super-
vision of Spanish masters were collecting pears, peaches, apples and
grapes. Sacramental wine was manufactured and brandy was distilled to
be sold to those crossing at the busy junction of El Paso. To the weary
traveller coming from the desert to the north and south of El Paso the
valley must have been a Garden of Eden.27 So' at least it seemed to this
same inspector who praised it as "a beautiful image of the river Nile. "28
Yet all was not bliss at El Paso. A report dating from 1795
complains that the Rio Grande was always muddy. It also gives a first
account of the river's habit of changing its course. During high water
season, the report states, large areas were flooded making traffic in the
valley extremely perilous. The river bed was constantly being built up by
debris and sediment, until the river rose above its walls and fell into a
nearby lower course. The irrigation dams at El Paso had to be rebuilt

every year because of such changes in the course of the river.29

 

storgan, Great River, Vol.1 I, p. 261.

 

z‘E’Horgan, Great River, Vol. I, pp. 264-298.

 

z“'I-lorgan, Great River, Vol. I, pp. 347-348.

 

zaHorgan, Great River, Vol. I, p. 348.

 

29Horgan, Great River, Vol. I, p. 347.

 

12

'In the middle of the 18th century El Paso was the largest of
the four towns in the north; the other three being Albuquerque, Santa Fé
and Santa. Cruz. -More than half the Spanish population of New Mexico,
totaling about 10, 000, lived in these four cities. Yet even in 1797 when
the first bridge was built across the Rio Grande at El Paso, there were
no medical facilities in this largest of the northern cities.30

The first North American known to have seen El Paso was the
explorer, Lieutenant Pike. He had been sent by. General Wilkinson of
Louisiana to explore the plains and mountain areas of Northern-New
’Mexico and to befriend the local Indians. While he was operating near
Santa Fé, he was captured by Spanish cavalry. From there he was
escorted to Chihuahua for further prosecution. .His route of travel took
him through -El Paso in 1808. Around 1810 many more Americans
illegally entered the Northern provinces of New Spain to settle there,
-Many were captured and sent to prisons in the state of Chihuahua by
way of El Paso.31

In the early eighteen twenties all settlement at El Paso. clung to
the southbank of the river. The town itself was an almoSt continuous
village spreading along the banks of the Rio Grande for almost eight
miles. . But not until 1827 did the town expand to the other side of the
river, when a Spaniard named Mari’a Ponce de Leon started a farm on
the northbank. ~Others soon followed. 7 Their small settlement was to

form the nucleus of the American town of Franklin.32

 

3l’Horgan, Great River, Vol.-I, pp. 348,395.
31Horgan, Great River, Vol.-I, pp. 414-418.

 

 

”Horgan, great River, Vol.11, p. 542; to avoidconfusion the
Mexican El Paso hereafter will be referred to as Juarez, the name it
acquired in 1888. The American settlement of Franklin will hereafter
be referred to as El Paso, the name it acquired in 1873.

13

In 1848 Juarez became a border town when the treaty of
Guadalupe Hidalgo made the Rio Grande a part of the boundary between
the United States and Mexico. Following the ratification of the treaty
bothesides engaged in setting up surveying parties to map and chart
the new border in accordance with Article V of the treaty. The chief
commissioner of the Mexican boundary commission was General Pedro
Garci’a Condé. His assistant and surveyor was José Salazar y Larregui.

. Colonel John B. Weller of Ohio headed the American commission.
Lieutenant A. B. Gray and Major William Hensley Emory were surveyor
and astronomer respectively.33

The American section witnessed several changes in personnel.
In1850 Colonel Weller was removed as chief commissioner and replaced
by Colonel John C. Fremont of California.“ Fremont, however, was
elected United States Senator fromCalifornia in the same year. He never
joined the commission.35 John R. Bartlett in turn replaced Fremont.“

InJuly of 1849, seventeen months after the signing of the-treaty
of Guadalupe Hidalgo, the commissioners met for the first time at
San Diego, California. Almost at once they ran into unforeseen difficulties,

because the discovery of gold in California had attracted all surplus labor.

 

33U. S. Congress, Senate, 55th Congress, 2d Session, Exec.
Doc.lNo. 247, Vols. XXIII-XXIV, pp. 11-12, "Report of the Boundary.
Commission upon the Survey and Remarking of the Boundary between the
United States and Mexico West of the Rio Grande. "

 

“U. 5.. Congress, Senate, 31st Congress, lst Session,. Exec.
Doc. No. 34, Vol. X, p. 10, "Secretary of State John M. Clayton to
J.. C. Fremont," June 28, 1849.

 

 

”U- S. Congress, Senate, 34th Congress, lst Session,. Exec.
Doc..No. 108, Vol. XX, pt. 1, p. 5,' "Report on the United States and
Mexican Boundary Survey, made under the Direction of the Secretary of
the Interior, by William H. - Emory, 1857. "

 

“U. S. Congress, Senate, 32d Congress, lst Session,. Exec.
Doc. No. 119, Vol. XIV, pp. 7-9,- "List of the Members of the Mexican
and United-States Boundary Commission with their Pay. "

 

14

With little assistance the commissioners managed to demarcate the new
international boundary from-San Diego to the Rio Colorado. After finish-
ing this assignment they agreed to meet again at Juarez in November of
1850."

While stationed at Juarez the Mexican commissioner Conde’ and
the American Bartlett were in disagreement over the exact location of the
intersection of the southern boundary of New Mexico and the Rio Grande.
Their differences of opinion had their origin in the reference of the treaty
of 1848 to an inaccurate map of Mexico. This chart was published in
1847 by a Mr. J. Disturnell and among other errors gave a totally false
location of both Juarez and the Rio Grande river.38 After the two com-
missioners had agreed on a compromise solution their decision was
challenged by Lieutenant Gray, the surveyor of the American party.
When Gray refused to accept the compromise between Condé and Bartlett,
he was dismissed by order of the Secretary of the Interior, Stuart. His
place was taken by W. H. Emory. Shortly thereafter in 1852 ‘Emory
succeeded Bartlett as chief commissioner.39

Work on surveying and charting the Rio Grande continued
throughout 1852. Despite many disagreements, not only between Ameri-
cans and Mexicans, but among the staff of the American commission in
particular, the survey of the Rio Grande boundary was completed for the
greater‘part by the middle of 1853. Reports which included maps and
surveying data were issued by the commissioners and added to the treaty

of 1848 as prescribed in Article V.

 

37Paul Neff Garber, The Gadsden Treafiy (Philadelphia, 1924),

 

p. 12.

38U. S. Congress, Senate, 32d Congress, lst Session,,Exec.
Doc. No. 119, Vol. XIV, pp. 392-394,. "Commissioner John R. Bartlett
to the Secretary of the Interior Alex. H. H. Stuart,- " Dec. 28, 1850.

 

39U. S.,Congress, Senate, 32d Congress, lst Session, Exec.
Doc. No. 119, Vol. XIV, p. 121, "Alex. H. H. Stuart, Secretary of the
Interior to A. B. Gray," Nov. 4, 1851.

 

15

Following the agreement to purchase of a section of Mexican
territory by the United States, the Gadsden Treaty or Treaty of
-La Mesilla was signed in 1853.40 This addition to United States territory
consisted of lands lying to the south of the river Gilain present day
New Mexico and Arizona. Except for shortening it a few miles the treaty
of 1853 had noveffect on the Rio Grande boundary. Article‘I of the Treaty
of La Mesilla contains the provisions for the Rio Grande border which
were virtually the same as those stated in Article V of the Treaty of
Guadalupe Hidalgo.

A new boundary commission was established to implement the
Gadsden treaty. It was headed by W- H. Emory as the American com-
missioner and by José Salazar y Larregui as the Mexican chief com-

missioner.41

Their energies were expended mainly on charting and
monumenting the land boundary created by the treaty of 1853. However,
there-were surveys of certain areas of the Rio Grande as well, especially
in the area where the land boundary and the river boundary met one
another. - Emory followed Salazar's trail six months later. When the

two commissioners compared their maps they noted great differences as
to the location of the river bed. .Within six months the Rio Grande had
changed course-dramatically- But the commissioners stated that this did

not matter and the Salazar map of 1852 was adopted by the treaty of
La Mesilla.“

 

 

“Siatutes at Lei-53, Vol. XXXIII, pp. 123-129.

41U. 3. Congress, Senate, 34th Congress, . lst Session,. Exec.
Doc.-No. 108,.Vol. XX, pt. 1, pp. 26, 35.

 

“Charles A. Timm, The International Boundary Commission;
United States andMexico, University of Texas Publication, No. 4134
(Austin, 1941), pp. l48-149--hereafter cited as Int. Bound- Comm.

 

 

 

16
FIRST INCIDENTS

The boundary problem concerning the territorial status of 4;...
E1 Chamizal has existed since the year 1864 when the Rio Grande during
one of its floods cut off a considerable section of Mexican territory
and subsequentlydeposited it on the American side of the river.43//The
land involved was owned by Pedro I. Garci’a, a Mexican resident of
Juarez. Garci’a' 8 claim of ownership was well documented. - The land
he claimed was originally acquired by one Ricardo Brusuelas throughra
grant activated on June 3, 1818. From Brusuelas the property passed
into the hands of Lorenzo del Barrio on the 15th of June, 1827. His heir
Antonio del Barrio in his testament gave the property to Pedro I. Garci’a.“

During 1865 and 1866 the Rio Grande continued to erode and
tear off sections of land from the Mexican bank. Each year the stream
moved closer to Juarez and eventually the city itself was threatened
with destruction. To prevent further damage the city administration
orderedcanals to be dug in order to divert the current of the river north
so it would retake its bed of 1863. The digging involved work in the
territory now on the American side of the river. It was interfered with
and halted by the residents of El Paso who had begun to occupy the newly
added land in front of their settlement. /.

As a result of the American action the military commander of
the district of Bravos at Juarez sent a very indignant letter to the governor
of. Chihuahua on October 17, 1866. The letter contained the commander's
interpretation of the nature of the Rio Grande boundary and a number of

complaints concerning the interference by Americans with the canal

digging operations. It expressed the belief that in 1848 the deepest channel

 

43Carrefio, Mexico, p. 393.

“Carrefio,~Mexico, pp. 394-395.

17

of the river was named the dividing line and that the commissioners, who
had been aware of the erratic behaviour of the Rio Grande, resolved to

fix the boundary line along its course astronomically and topographically.
The letter went on to mention that the course of the river hadchanged
considerably since the survey of 1852, most notably at San Elizario‘where
it had destroyed most of the woods belonging to that community, and next
to Juarez in theChamizal sector where more than 1500 varas were lost

to Mexico. a The military commander then proceeded to accuse the
American settlers of employing a double standard when they accepted
‘Mexican respect for the American claim to the woods left on the Mexican
side of the river near. San Elizario and at the same time refused to recog-
nizeas Mexican those territories which had been transferred to the left
bank or the American side of the river in front of El Paso... After describ-
ing the preventive measures undertaken in the Chamizal territory and the
subsequent American actions, the report concluded by saying that only

the Mexicans had respected the boundary marked by the commissioners.“

From the letter of the military commander of the Bravos district
we receive a clue as to the opinion of the Mexicans of the valley of
El Paso concerning the nature of the boundary. . From their point of view
the boundary was artificial, fixed, and permanent regardless of any
changes in the-course of the river.

To support his contention that the boundary along the Rio Grande
was artificial the military commander of Bravos referred to opinions
voiced by-various commissioners concerning the nature of the boundary.
As he did not mention any specific names it is not clear to what opinions
hemade reference. .One of the most probable, however, is that of Gray,
the chief surveyor of theAmerican commission. . On June 20, 1851, . Gray

had insisted during a meeting of the twocommissions at Santa Rita del Cobre

 

'4SCarrefio, Mexico, p. 347.

18

that it was necessary to mark and fix the course of the river astronomic-
ally and that it was absurd to suppose that should the river change course
the boundary would change likewise. . Referring to the probable loss of
Brownsville, Texas, if the boundarylwere to change with the river, he
demanded that once rivers had been marked as boundaries, the boundary
line should remain always as marked. 7 The demarcation agreed upon,
he continued, should form a part of the treaty of 1848 as specified-in
, 7 Article V.‘6 In a letter to the Secretary of the InteriorStuart he defends
the same position."
John Bull, first assistant surveyor, also was convinced that the
‘Rio Grande should be made into a well marked and monumented artificial
boundary. He stated that no river in the northern hemisphere was more
variable than the Rio Grande. — He pointed out that half the land formerly
on the American side of the Rio Grande in the 'El Paso-Juarez valley
had passed from the left to the right, or Mexican bank, within the few
months of the two chief commissioners' residence at Juarez. *Lastly Bull
clairvoyantly predicted a never ending chain of boundary problems which
would arise if the river were to be treated as a natural boundary.48
When on the occasion of the meeting at Santa Rita del Cobre the
Mexican commissioner expressed apprehension to his government con-
cerning changes in the course of the Rio Grande he received the following

instructions:

 

“Cari-e50, Mexico, pp. 355-357.

47U. S..Congress,. Senate, 32d Congress, lst Session,.Exec.
Doc.- No. 119,. Vol. XIV, pp. .300-305,- "A. B- Gray to the Secretary of
the Interior-Stuart,- " Santa Rita del Cobre, July 20, 1851; U. S. .Congress,
Senate, 32d Congress, 2d Session, Exec.. Doc. No. 55, Vol. VII, pp.
14-16, "'Report of Captain A. B. Gray’Relative to the United States-
gMexican Boundary Survey, " February 8, 1855.

 

 

“U. S. Congress, Senate, 32d Congress, 2d Session, Exec.
Doc.-No.. 38,. Vol. III, pp.. 2-4,- "John Bull to John R. Bartlett, "
February 10, 1853.

 

l9

Concerning the marking of the boundary line in the rivers which
Change course, the commission will proceed to determine it
according to the course which they have at present or which
would be the most frequent . . . and will mark it with signs which
will correspond with astronomical designations. . . . "49

This note from the Mexican government does not make express
reference to the Rio Grande boundary being artificial. But it does
demand that it be determined astronomically. . This could be interpreted
to mean fixed and unchangeable.

Although there were many statements to back up the opinion
expressed by the Bravos district commander, Opinions demanding a
natural frontier along the Rio Grande were heard also. . John B. Weller
as early as 1849 in a letter to the Secretary of State, _ Clayton, stated that
, "as a natural boundary, the Gila and the Rio Grande constitute a large
portion of the remainder of the line. It is thought no difficulty will be
found in establishing it. "50 Emory voiced similar sentiments concerning
the Gila river boundary, sentiments which equally apply to the Rio Grande.
- "The Gila, " he states, "does not always run in the same bed; whenever it
changes, the boundary must change, and no survey, nor anything else
can keep it from changing. The survey of that river--as it fixes nothing--
determines nothing. " Emory's attitude remained the same throughout his

51 Upon his becoming chief com-

work with the boundary commission.
missioner of the American section in 1853 his viewpoint must be regarded

as the official position held by the American party. This attitude also

 

‘?Carrefio,-Mexico, p. 337.

50U. S- Congress, Senate, 3lst Congress, lst Session,. Exec.
Doc. No. 34, Vol. X, p. 34,. "John B. Weller to John M. Clayton, "
'October5, 1849.

 

 

'51U. S- Congress, Senate, 31st Congress, lst Session,. Exec.
Doc. No. 34, . Vol. X, p. 34, - "Emory to the State Department, " April 3,
1850; William Hensley Emory, Notes on the Survey of the Boundary Line
between Mexico and the‘United States (Cincinnati, 1851), pp. 5-7.

 

 

 

20

explains his refusal to worry about the discrepancies between his survey
of the Rio Grande and that by Salazar. The neglect of both Salazar and
' Emory to make provisions for maintaining a fixed boundary could mean
that they considered the Rio Grande frontier to be a natural border and
subject to the body of international law governing arcifinious boundaries.

The governor of the state of Chihuahua, Luis Terrazas, for-
warded the report from the Bravos district to the Secretari’a de Relaciones
which at the time was in the hands of Lerdo de Tejada. The‘Mexican
Foreign Minister Lerdo made the complaint known to the American Secretary
of State, Seward, through the offices of Mati’as Romero, head of the Mexican
legation at Washington.” In this message of December 5, 1866, Lerdo de
Tejada took the position that in dealing with river boundary problems
changes by accretion could be ignored. Avulsive changes, though, would
not deprive owner or nation of property.53

Mati’as Romero reported personally to Seward, who after listen-
ing declared the matter to be potentially grave, but at present quite harm-
less. . He asked Romero for copies of the Bravos district commander's
letter for further study.“

After having received the information requested from the
Mexican minister, . Seward presented his written reply to Mexico's com-
plaint. - It was forwarded to the Mexican legation at Washington on
February 5, 1867.55 Included in it was a-statement made in 1856 by
Attorney General Cushing which, according to the Secretary of State,

contained the principles supported by the United States. Cushing's opinion

 

S‘ZCarrefio, Mexico, p.. 337.

53Timm, Int. Bound..Comm., p. 157.

 

54'Carreiio, Mexico, p. . 349.

55Timm, Int. Bound- Comm., pp. 151-152.

 

21

in essence was that in a stream subject to avulsion and aluvion the
boundary line would be found in the middle of the stream. However,
should a river abandon its old bed and chose a new one the boundary
would remain in the middle of the old bed. In the case of changes
stemming from erosion and accretion the boundary'line would stay in
the middle of the channel.“ (The principles voiced by Cushing were none
other than those of international and civil law concerning property near
rivers.

~Mati’as Romero hastened to express his conditional agreement
with Caleb Cushing's opinion, but he reserved for the government of
! Mexico the right to reject or accept these principles. . For his part he
stated that he considered them justified. OniFebruary 6, 1867, he trans-
mitted Caleb Cushing's statement to Lerdo de Tejada. There was no
- answer forthcoming from the Mexican Foreign ministry.57

The problem of El Chamizal reappeared on June 8, 1874, in
a note by Dr. M. O. Samaniego, Mexican Vice-Consul at El Paso, Texas.
In thismessage to the'Mexwican government Samaniego noted that since
1852 when the boundary was established the river had undercut the right
bank every year during floods. This had destroyed the property of
many‘families forcing them to leave Juarez and to settle elsewhere.
The Mexican authorities, he continued, had tried to originate several
preventive .measures to check the destruction, but none had helped.
. Mainly. to blame for this lack of success, he stated, was the attitude of
. the inhabitants of El Paso who insisted that the Mexicans had no right to
alter the course of the river. He also was of the opinion that the dividing
line of 1852 had been-fixed astronomically and that the boundary as

charted in 1852 was about 1000 varas to the north of the present river bed.

 

“Opinions of the Attorneys General of the United States, Vol.
VIII, p. 175.

 

57Carrefio, Mexico, pp. 354-355.

22

The Rio Grande therefore was flowing through Mexican territory and
the inhabitants of Juarez were perfectly within their rights when they
attempted to change its course up to the point where it met the original
boundary line.58
A letter by Sr. Armendariz, administrator of the custom house
of Juarez, followed Samaniego's message. The note which Armendariz
sent to the Secretari’a de Hacienda on August 3rd of the same year con-
tained a statement of the position which Mexico was to adopt during the
arbitrational stage of the Chamizal dispute in 1911:
Nothing seems easier, than to have stated in the Treaty of Guadalupe
Hidalgo that the perpetual boundary between the two countries should
be from the port of San Diego to the Rio Bravo, and along this river
to the delta. But instead it was said with great clarity that the
boundary in all its course should be marked by the commissions . . .
in order that the line as marked on their charts would constitute the
perpetual and invariable boundary between the two nations. What
would be the purpose of marking the deepest channel of the boundary
wherever the river had two arms . . . if the river, changing course
from one side to the other, would also change the boundary? Is it
possible that the distinguished statesmen of both nations drew up and
ratified such a treaty, knowing that it would cause constant discord
and insecurity among those living adjacent to the river. . . ? 59
As a direct result of the two communiques Lafragua, the Mexican
Foreign Minister, soon forwarded a series of documents concerning the
recent boundary difficulties to Ignacio Mariscal, the head of the Mexican
legation at Washington. He attached a letter explaining to Mariscal the
position of the Mexican government concerning the nature of the Rio Grande
boundary. The border in its entirety, he believed, was made up of

mathematical lines which were to be considered invariable since nothing

was provided in the treaties of 1848 and 1853 to deal with the unforeseen

 

”Carrefio, Mexico, p. 358.

59Carrefio, - Mexico, p.359.

23

event of major changes in the course of the river. Some agreement
would have to be reached between the two nations to permit speedy
settlement of river boundary questions.60

IgnacioMariscal after receiving Lafragua's note went to see
the American. Secretary of State,-Fish, and informed him of the instruc-
tions he hadireceived concerning the initiation of negotiations to settle
all outstanding boundary questions. - Fish promised to think over the
problem—and agreed to meet again soon to discuss necessary details
with Mariscalf’1

On March 25, 1875, Mariscal issued a tentative proposal for
a convention. , It amounted to a complete negation of the artificial
boundary theory. In essence the proposal stated that although the treaty
of 1848 presumed the boundary line to remain always as providedfor in
that treaty, gradual change through the natural work of aluvion would
change the boundary line. Mariscal's proposal was nothing less than
a restatement of the opinionexpressed by the Attorney General Cushing
in 1856. . As such it represented a complete disregard of the opinions
of the'Mexican officials whose complaints had initiated the negotiations.

. Mariscal's project was forwarded to the Secretari’a de Relaciones,
and on-April 30, 1875 he was informed that it was acceptable to present
the treaty project in the general terms in which it was conceived. - But it
would be necessary, the message continued, to amend it with one or
‘two clauses. The first amendment to be added was to state that "if land
gave way from one of the two banks because of violent changes in the
course of the river, those people who found themselves in one or the
"other territory, separated by the new current from their old land, would

continue to belong to the country of which they we re a part before being

 

“Timm, Int. Bound. Comm., p. 153.

 

61Carrefio, Mexico, p. 362.

24

cut off by the change in the course of the river. " The other amendment
provided that "if in a river with-two or more currents one should be-
come so strong that it would abandon the one which served as a boundary
line, the rule would be to consider those bancos and lands now trans-
ferred to belong to the nation which owned them before the change in
current occurred. "

Mariscal included these two amendments in his treaty proposal
and also added a third one of his own. It contained the provision that
"if by the force of the current a part of the territory of one of the two
nations would be torn away from its shore and moved next to the border
of the neighboring country, such a part would continue to belong to the
nation which had owned it before. " This proposal was forwarded to the
' Secretary of State, Fish, but the American government was not in a
receptive mood and matters containued in a state of ambiguity for several
years. Not until the case of Beaver or Morteritos Island arose was the
argument concerning the nature of the Rio Grande boundary resumed.“

The Morteritos or Beaver Island boundary dispute came into
existence because of a controversy between the United States and Mexico
over rights of sovereignty on this island. Morteritos is located in the
lower Rio‘Grande opposite the Texan town of Roma.” Although far re-
rmoved from the El Paso-Juarez valley the impact of statements made
during this quarrel influenced the treatment of E1 Chamizal at a later
time. The precedents set up during these negotiations are too important

to be disregarded.

 

62Timm,lnt. Bound. Comm., p. 154.

 

”Humberto Escoto Ochoa, Integfacion y_Desintegracion de
Nuestra Frontera- Norte, Universidad Nacional de Mexico, Faculdad
del Derecho, y Ciencias Sociales, Thesis (Mexico, D..F. , 1949). P. 158.

 

 

25

The Morteritos problem became an international dispute when
Don Manuél Garga Pefia, a Mexican citizen and a resident of the village
of Mier,‘ approached the Mexican consul in this town to protest the
actions of twoAmerican customs officials, Luziano Munoz and Jorge
Lowe. The two officers had ordered him to stop farming the island and
had confiscated the oxen he had used in his work. The animals had been
taken to Roma.64 The Mexican government resolved to protest the
actions of Munoz and Lowe. It considered the inhabitants of the island
Mexican citizens since they had paid taxes to Mexico and not to the
United States. The matter was brought to the attention of the American
Secretary of State, Frelinghuysen, on March 13, 1884. 65

In the meantime the American customs officials also had filed
a protest with the Department of State. They protested the invasion of
American territory, Morteritos Island, by authorities and private
individuals from Mexico. Consequently, the letter continued, the Arneri-
can-military commander of the Roma sector had ordered the forceful
occupation of the island. According to the commander he was acting
under orders from the Secretary of War.66

On June 12, 1884, Mati’as Romero, the Mexican Minister at
Washington, presented a series of documents concerning Morteritos
Island to Secretary of State Frelinghuysen, Included was a report by
Garga Pefia telling of the invasion of the island by the justice of the peace
and fifty other men from Roma. According to Garga Pefia's testimony
they had committed acts of violence on January 20, 1884, and had

threatened the Mexican residents should they remain on the island.

 

64Escoto, Integracion, p. 159.

 

65Carrefio, Mexico, p. 368.

66Escoto, Integracion, p. 159.

 

26

‘ As a result of Mati’asRomerO's protestthe two nations agreed on a
. status quo' leaving it up to diplomatic negotiations to decide the sovereignty
of the island.67

In the ensuing diplomatic war Mexico insisted that the island had
always been a part of Mexico since it lay to the south of the main channel
of the Rio Grande at the time of the border survey of 1852. -Since then
the river had changed course leaving the island to the north of the main
current. Morteritos, including all aluvial additions, therefore belonged
to Mexico. In principle Mexico's position amounted to a restatement of
its previously held theory that the boundary line as shown in the-maps of
the original boundary commission was permanent and immutable.

A change in‘the course of the river could not affect sovereignty over the
island.

After the American State Department had been informed of
Mexico's position, Frelinghuysen at once consulted the former boundary
commissioner, Emory, requesting his opinion as to the status of the
island. Emory's decision was in favor of the United States. It was based
on evidence from the original charts, which showed according to Emory,
that the island had been north of the main current at the time of the
original survey. 68

.On July 11, 1884 Frelinghuysen instructed the American
minister at Mexico City to follow in his negotiations with the Mexican
government the decision made by Emory and to adhere to the principle
that in spite of any changes in the river caused by aluvion or for any
other reason, the boundary’line would remain unaffected and continue to
correspond with the line shown in the maps of the original boundary

commission of 1852. 69

 

6.7Carrefio, Mexico, p. 369.

“Escoto, Integracion, p. 159.

 

69Escoto, Integracion, pp. 160-161.

 

27

The Mexican government upon hearing Emory's opinion had a
second look at the maps of 1852 and decided on a different approach.
It proceeded tovask Frelinghuysen to reconsider the treaty project
offered by Mariscal in 1875. The American Secretary of State had his
objections to that proposal and reaffirmed his position that variations of
the stream bed, whether they be caused by aluvion or any other means,
were not sufficient cause to change the boundary.70 Mexico, upon
- receiving Frelinghuysen's policy statement, did not continue to press
its claim and on October 9, 1884 the‘Mexican Minister, Mati’as Romero,
informed the State Department of Mexico's consent to the loss of
Morteritos Island}1

If it was Mexico's intention to wrest an admission from the
United States that the Rio Grande boundary was artificial rather than
natural, it had succeeded admirably. For Frelinghuysen's statement
not only accepted the idea of a fixed line boundary impervious to changes
in the river, but also refuted the opinion voiced by Cushing in 1856 and
the related treaty proposal of 1875. Whatever may have been Freling-
huysen's reason for the unnecessary switch in the American position,
is unclear. .But we may be assured that it reenforced the beliefs of those
‘Mexicans who held that the boundary was astronomically fixed and not

subject to change under any circumstances.

EL CHAMIZAL: CASErNO. 4

In 1882'Mexico and the United States entered into an agreement
providing for the reconstruction of destroyed and decrepit boundary

markers along the land border west of the Rio Grande. A convention

 

79Carreno,-Mexico, p. 370.

71Escoto, Integacion, p. 376.

 

28

governing that undertaking was signed on the twenty-ninth of July.”
.A team of surveyors also was engaged in charting the Rio Grande where
it meets the land boundary. They paid little or no attention to the fact
that the river deviated considerably from the course it held in 1852 and
1853.73 As it was common knowledge that changes had occurred, the
surveyors must have been aware of them also, but they did not consider
them to be of any consequence. The philosophy underlying their work
seems to have been that the river was a changing "natural" boundary.
The'"fixed-line theory" agreed upon as the decisive principle in the
Morteritos Island dispute and the marking of the river along its course
of 1882 set two opposing precedents. The need for an international agree—
ment as to the proper way of dealing with river boundary questions
resulted in the convention of 1884. 74

The proposal for this convention originated in a message from
Mexican Ambassador Mati’as Romero, to the American Secretary of State
Frelinghuysen.75 In the projected convention the concept of a fixed and
immutable boundary was not mentioned. The proposal completely dis-
regarded the position taken by Frelinghuysen in connection with
Morteritos Island and de facto accepted Cushing's opinion of a "natural"
Rio Grande boundary. On November 12, 1884 the convention was signed.76
.Aluvial and avulsive changes were to be decided on the basis of inter-

national law.

 

"Statutes, Vol. XLVII, pp. 172-176.
73Carreirlo, Mexico, p. 376.

74‘U. S. Congress,.Senate, 50thCongress, 2d Session, Exec.
Doc. No. 144,.Vol. IV, 62 pp.

 

75Escoto, Integracion, p. 162.

 

“Statutes, Vol. _ XLIX, pp. 37-40.

29

The prospects for a speedy ratification of the treaty by Mexico
were none too promising at first. A disagreement between Mati’as
Romero and the Mexican Foreign Minister, - José Fernandez, over the
position to be adopted by Mexico had resulted in an unexpected delay.
Fernandez had instructed Mati’as Romero to adhere to the fixed line
theory and seemed rather perplexed at the Ambassador's handling of the
matter. A short resume of a letter by Fernandez to Mati’as Romero

clearly indicates this:

The Secretari’a has discovered . . . vascillation in your opinion
concerning the true meaning of the instructions which were handed
to you. Their purpose was to assist you in reaching an agreement
with the United States in order to eliminate the difficulties arising
from the frequent changes in the course of the Rio Bravo. But

at times you narrow these instructions and at other times you state
that they are exactly the same as those advocated by Mariscal in
his treaty project . . . of December 2, 1875. The theory of that
treaty pr0posal is exactly the same which the United States would
like to see prevail. . . . You held . . . in- note No. 437 . . . that
with the Objective of our government in mind, the basis for a treaty
would have to be as follows: "The boundary line from El Paso to
the Gulf of Mexico ought to be the channel in which the Rio Bravo
ran when the boundary line between the two countries was marked
by the Mixed Commission according to Article V of the treaty of
February 2, 1948. " Despite'this statement in note No. 802 you
presented to the government of the United States the treaty project
of Mariscal in which you accept the change of the line because of
slow changes in the river. In this same note you tell of having sent
another message to the Sec retari’a on October 9, [1884] in which one
reads that "if the United States wants to retain its rights to the said
island, ~ Morteritos, I recognize here that the boundary between the
two republics is fixed by the Treaty of Guadalupe Hidalgo, as it was
marked by the Mixed Commission without it having been changed by
differences in the course of the river or its sources or its number
of branches.- " At the same time I recommend to you that you will
be clear about the following: At no time will you stray from the
instructions given to you by this Sec retari’a . . . because what the
Mexican Government wants to achieve is to evade further questions,
that is to say, although the river may change course, slowly or
rapidly, thesame course which the Rio Bravo held in 1848 will
always remain the boundary line. . . .77

 

77Carrefio, Mexico, pp..379-382.

30

<~The annoyance evident in the Foreign Minister's correspondence

with his Ambassador at Washington shows that Mati’as Romero signed the
Treaty of 1884 without considering the position of his government. The
~ latter, realizing that he had committed a grave error issuedla note to the
"Encargado de Negocios at interim" in Washington instructing him that
"nothing be done which runs counter to the instruction given by Fernandez. "78

Ratification of the convention might very well have been pre-
vented had Fernandez remained in office, but at just this critical time he
was succeeded in office by Mariscal, the author of the treaty proposal of
1875. Mariscal at once sponsored the ratification of the convention of
1884.79

On March 1, 1889, a convention was concluded by Mexico and
the United States, establishing an International Boundary Commission to
apply to boundary issues the provisions made in Articles I and II of the
treaty of 1884.80 This commission was set up in 1894 and had its life

extended every year by new conventions.81

Finally it was made a
permanent commission on November 21, 1900.82
This International Boundary Commission was the successor of

the special commissions created by the treaties of 1848, 1853 and 1882

 

78Carrefio,-Mexico, p. 382.
79Carrei'io, Mexico, p. 302.

80Statutes, Vol. LI, pp. 32-37; International Boundary Com-
mission, United States and Mexico, Treaties, Joint Rules Governinj the
Commission, Personnel (Washington, 1929), 26 pp.

 

 

”Treaties extending the life of the International Boundary Com-
mission were signed on August 24, 1894; October 1, 1895; November 6,
1896; October 29, 1897; December 2, 1898; December 22, 1899.

82U. S. , Department of State, Papers Relating to the Fore_ign
Relations of the United States: with the Annual Message of the President
to ngress, December-3, 1900 (Washington, 1902), pp. 786-788--here-
after cited as For. Rel.

 

31

for surveying and marking the land and water boundary between the two
countries. In contrast to its predecessors the International Boundary
Commission was a legal and administrative body, charged with solving
all water boundary differences and questions. 83 Unchallenged within one
month, the decision of the commissioners was to have treaty force.“
Article I of the convention of 1889 gives the International
Boundary Commission a general and broad grant of jurisdiction over all
boundary disputes along the Rio Grande and other river frontiers with
-Mexico. Article‘II divides the commission into two sections, American
and Mexican respectively. Each section consisted of a commissioner,
a consulting engineer, secretaries and interpreters.85
Colonel Anson Mills of the United States and José Mari’a Canalizo
of Mexico were the first commissioners. They were appointed in 1893.
The organization of the two sections was effected on January 8, 1894,
and rules and regulations were agreed upon at the same time. Colonel
Mills remained the head of the American commission until the year 1914.
The Mexican commission saw several changes in personnel during the
same period. Most important among these were the replacement of
Jose Mari’a Canalizo by Francisco Javier Osorno in 1894. Osorno in
turn was succeeded by Jacobo Blanco in 1898. -Fernando Beltran y Puga,
.who took over from Blanco in 1906, was Mexican commissioner until
1914.“5
Mills' estimate of the commission's work during his time was

that ".during the sixteen years of our active service (the revolution of 1911

 

83James D. Richardson, . A Compilation Of the Messages and Papers
of the Presidents (Washington, 1911),.Vol. IX, p. 187; Vol. VIII, p. 815.

 

 

a“Timm, Int. Bound..Comm., p. 13.

 

85Timm, Int. Bound. Comm., p. 26.

 

86Timm, Int. Bound. Comm., p. 27.

 

32

in Mexico having (put an end to our activities), the Commission tried
over 100 cases of all kinds, disagreeing only in the Chamizal case, and
preserved the peace and quiet of the entire Rio Grande border for these
long years to the satisfaction of both governments and the people of the
two nations.- " Mills had good reason to be proud of his record, particu-
larly in respect to the Banco Elimination Treaty of 1905.37 As a result
of this agreement thousands of acres of land transferred by shifts in
the channel from one side of the river to the other were judged to belong
to the countries where they found themselves. The Rio Grande once again
became the true boundary along most of its course. -On the other hand
theChamizal case was badly handled by the International Boundary Com-
mission and remained as a poignant reminder of mutual incompatibility.
As the International Boundary Commission‘was in the process

of being established the Chamizal question was once again brought to
the fore. ' On January 23, 1894, Pedro I. Garci’a testified before the
District Judge of Bravos and submitted an application for the return of
his property, which he claimed was within the limits of the Chamizal
tract now on the American side of the river in front of El Paso, Texas.
A short excerpt from his testimony explains the basis of his claim of
reclamation:

.As a consequence of brisk and sudden changes in. the current

[1864-1867] of said Rio Bravo, this-land remained on the other side

of the river. From then on I have not dared to occupy my lands,

fearful, among other things, that I would suffer personal injury

by some North Americans who, considering the land a part of United

States territory, had occupied it. Another reason was, because ‘I

was not sure which government to recognize in order to pay taxes.88

Garci’a's testimony was forwarded by the political administrator

of the Bravos district tO‘Osorno, the Mexican commissioner. Osorno

 

87T.imm,-Int. Bound. Comm., p. 28.

 

88Carreiio,-Mexico, p. 395.

33

presented the problem to the International Boundary Commission on
September '28, 1894. From then on it became known as "El- Chamizal,
case no. 4. "89 The documents involving El. Chamizal were presented
to the commission on November 4, 1895. The commission met in
session on=November 6.90

The U. S. commissioner after viewing the-documents stated
that the boundary commission was not created to deal with matters of
national sovereignty over adjacent territories and that it was not meeting
to determine the location of the boundary line. It was to deal solely with
boundary changes in their formative stages. The claim therefore should
be rephrased in the following question: "Did the Chamizal change over
to the United States because of a change due to aluvion or avulsion?"91

In other words the question as applied toGarci’a's claim was
whether his land was transferred to the United States bank of the Rio
Grande by avulsive or aluvial change. The decision was to be made in
accordance with articles I and II of the treaty of 1884 which stated that
should the. change be through slow and imperceptible accretion and
erosion the river would remain the boundary. If the change occurred
because of avulsion theboundary would remain as it was prior to that
change. The Mexican Commissioner accepted the restatement of
Garci’a's claim\by Commissioner AnsonMills.

A small difference of opinion arose at the outset of negotiations.
The point of conflict were two maps of the E1 Paso-Juarez valley. Both
maps supposedly were drawn up by the original boundary commission in

1852 and 1853. -However, the location of the river differed from one map

 

8?Carrefio, *Mexico, p.. 395.

9°Comisi6n1nternacional de Limites, entre Mexico y- los Estados
Unidos, .Secci6n Mexicana, 'Memoria Documentada del Juicio de Arbitraje
del Chamizal (Mexico, D. F., 1911), .Vol. II, p. 646--hereafter cited as
Memoria Documentada.

 

 

 

91Timm, Int. Bound. Comm., p. 133.

 

34

to the other. This was due to the difference of time between the surveys
of Salazar and Emory. The chart presented by the Mexican com-
missioner was eventually accepted as most authentic and accurate since
it alone bore the official signatures of the boundary commissioners
Salazar and Emory.“

The American commissioner felt that the evidence presented by
Garci’a in support of his claim was insufficient to prove the contention
that the river had suffered an avulsive change in 1864; he demanded
further proof. On April 14, 1896 a number of witnesses were called to
the stand to testify in behalf of Mexico. They were Jesus Serna,
Inocencio Ochoa and Espiridién Provencio. All had been long time resi-
dents of Juarez,, Chihuahua and were there in 1864. Ochoa, a former
mayor of the . city of Juarez, had personally undertaken preventive
measures to stop the advance and destructive action of the river. The
American witnesses were two Americans, Samuel Schutz and José
Magoffin and a Mexican citizen Jose M. Flores. - Mills very skillfully
interrogated his witnesses with the intention of proving that thelands
torn away from the Mexican side did not come to the American bank in
any recognizable shape. However, as much as the witnesses disagreed
with one another they were certain that the river changes had occurred
frequently and that in 1864 they had been so violent as to destroy trees,
houses and orchards. Pieces up to 50 yards wide were cut away from
the Mexican bank in the course of a day.93

At the end of the questioning the commissioners presented their
respective positions. They agreed that the Chamizal tract, during the
period when the boundary was demarcated by Salazar and Emory, was

in one piece and could be found on the Mexican side of the Rio Grande.

 

92Carrei'io, Mexico, pp. 401-402.
”Gaucho, Mexico, pp. 403-405.

35

Later because of successive changes in the course of the river the land
had passed from the Mexican to the American side. The Mexican com-
,missioner' then contended that any change other than slow and gradual
would not affect the boundary line. He insisted that the changes in the
case of E1 Chamizal were not slow and gradual but most violent andat
periods of time of unequal intermission. The change in the river,
therefore, was not in accordance withiArticle I of the treaty of 1884 and
the boundary line was not altered. - The American commissioner on the
other hand held that the-second characteristic of avulsive change had not
been present. The land transferred from one side to the other had not
arrived in any form resembling the land before its destruction by the
river. The changes in the course of the river therefore were caused by
erosion and accretion in conformity with Article I of the same treaty.
He also held that the phenomenon of aluvion did not have tobe uniform
in nature, but might be intermittent and perceptive. The boundary line
therefore had moved with the river.94
The divergent views of the commissioners were duly noted and
it was agreed to meet again on June 17, 1896. However, no further action
was taken after an attempt by Mexico to reopen the case had failed.
- Mills declined to answer a Mexican request to that effect following a note
by Under-Secretary of State W.. W. Rockhill asking Mills to go ahead if
an agreement were possible, otherwise to refuse consideration. 95
Although no solution was reached during this first official con-
sideration of the. Chamizal case the positions taken by the two parties
were to be of consequence later. iTheir particular significance lies in
‘Mexico's explicit adherence to the treaty of 1884 as a means of solving

boundary disputes which came into existence prior to the ratification of

 

94'Timm, Int. Bound..Comm., p. 134.

 

95Timm,'lnt. Bound. Comm., p. 134.

 

36

this-treaty. In other words Mexico considered the Rio Grande boundary
to be a natural boundary, because the treaty of 1884 was retroactively
applicable to all boundary problems since 1848. The statement by the
‘American Commissioner proved to be equally important. . For 'in stating
that aluvion could be rapid, intermittent and visible, Mills set a precedent
for the theory of rapid erosion which he supported during the arbitral
stage of the Chamizal dispute.

On December 30, 1897, the American govermnent made another
effort to solve the Chamizal question. .Clayton, the American ambassador
in Mexico City handed a proposal to Mariscal, the Foreign Minister of
Mexico, calling for the addition of a third neutral member to the Inter-
national Boundary Commission. The function of the third commissioner
was to be that of arbiter. The plan, however, was rejected by Mariscal
on grounds that the International Boundary Commission was "established
only to emit its opinion, which necessitates the ultimate approval, ex-
pressed or presumed, of the two high contracting parties. . . . "96

Once resurrected the Chamizal dispute was not left to rest for
very. long. On February 11, 1898, the Mexican Foreign Secretary in
turn made a proposal to Clayton, suggesting arbitration by the chief of
a third sovereign state.” Mariscal's proposal found a very cool reception
in the United States. The American position as expressed in Clayton's
response stated that the question was one of applying ordinary rules deal-
ing with fluctuating river boundaries and that it was not one "involving
the element of friendly compromise which is so often apparent in the

settlement of international disputes by a neutral arbiter. "98

 

”Memoria Documentada, Vol. 111, pp. 969-970, 974-975, 980-

 

983.
9f’Memoria Documentada, Vol. IH, p. 975.

 

9.8Memoria Documentada, Vol. 111, .pp. 977-978.

 

37

After rejecting Mariscal's proposal Clayton put forth the sug-
gestion of adding a jurist to the commission to cast a third vote. This
was rejected by Mariscal who held that the matter was too important to
be left in the hands of a private citizen. ‘Mariscal's answer‘was forwarded
by theAmerican-State Department to Commissioner Mills. Ina last
attempt at reaching common grounds, theAmerican Commissioner in a
note tO‘Mariscal expressed his views on the use of a neutral third
member to arbitrate disagreements. , Mills felt that the problem was solely
technical. The arbiter would have to render an entirely intellectual
decision, since the question was whether the river, in its movement over
some 600acres during the past 40 years, had changed course by gradual
erosion andaccretion or by avulsion. 'No answer was received from
Mexico and negotiations came to a standstill."9

In 1907 Mexico and the United States entered into a series of
negotiations concerning the property rights of, Mexicans residing in the
i Chamizal area. The government of the State of Texas and the administration
of the city of El Paso had repeatedly tried to exercise de facto sovereignty
in the Chamizal tract. - Most important among these actions by theState
of Texas was the issuing of land grants within the limits of El Chamizal. In-
dependently. of these concessions by the State government, El Paso had
granted a right-of-way across the disputed territory to the El Paso Transit
1 Company. The city permitted the enterprise to build bridges across the
Rio Grande. 4 One of these bridges was within the bounds of theChamizal
tract. - When conflicts arose between people holding Mexican land titles
and those with documents of the State of Texas, the marshal of El Paso
tried to expel r. all Mexican property holders from the Chamizal tract and

American courts attempted to exercise jurisdiction in these disputes. 10°

 

”Timm, Int. Bound..Comm., pp. 134-135.

 

100Carrefio,'Mexico, p. 414.

38

*Enrique C..Creel, the Mexican ambassador at Washington, pro-
tested these activities in a letter to the American Secretary of State,
.Elihu'Root. In this message of March 21, 1907, he described how several
of the inhabitants of the Chamizal tract had approached the Mexican
boundary commissioner asking him for help to prevent the activities of
the marshal ofEl Paso who was acting in the position of a federal official.
.Creel also imade it clear‘that the'Mexican settlers were in a desperate
moodrand ready to answer force with force to defend what they considered
properly their own. Finally the Mexican‘Ambassador requested that the
: State Department stop the proceedings of the marshal. 7A similar-appeal
by’Beltran y Puga to Creel also was made known to the State Department.

On the 29th of March, 1907, . Secretary of State Root acted on
Creel's message by informing the Attorney General of the United States
that the Chamizal area was disputed territory and as yet of undetermined
sovereignty. .Consequently, it was the job of the'lnternational Boundary
Commission to deal with the problem. Any judgments passed by the
Federal Circuit Court in questions dealing with the Chamizal tract there-
forewere inapplicable. The disposition of property, Root continued,
which was still subject to international negotiations put the United States
in an untenable position. Themarshal therefore should be ordered to
stop proceedings at once. 101

Root's order'was complied with by the-Attorney General. -Yet
difficulties did not disappear right away. . The local authorities of El- Paso
continued to orderMexican-title holders to leave the Chamizal tract im-
imediately. , Creel again had to ask for intervention by'the State Department.
In his letter of July 19, 1907,. Creel also suggested that a special arbitral
body be formed. It was toiconsist of the two boundary commissioners and

of a jurist selected by the government of Canada. The Canadian was to

 

101Timm, Int. Bound.-Comm., p. 135.

 

39

function as arbiter and cast the decisive vote on all questions the two
commissioners were unable to agree on. 107‘

While Creel's proposals were discussed much interest centered
on a plan for a treaty advanced by Mexico. It was to provide a new
basis for settling all river boundary problems between the two nations.
Overtures in this direction had been made by Jos-é Godoy, the Mexican
charge d'affairs, at Washington on May 21, 1908.

The Mexican treaty proposal contained provisions for exchange
of territories transferred from one bank of the river to the other. In
particular it was advocated to exchange E1 Chamizal and Cordova Island
for’San Elizario and the Horc6n bar. The last two were to go to‘Mexico
and the first to the United States. Rivers would remain boundaries in
the future regardless of any changes except those caused by avulsion and
involving more than 400 hectares or 200 people. In such abnormal cases
commissioners would be appointed to mark the old river bed and thus
preserve it as the boundary. Artificial changes in the course of the
river were to be prohibited without provisions for the restoration of the
old channel as the boundary. 103

In a letter of October 22, 1907, Root agreed in principle to
Godoy's treaty proposal. The issue was discussed forthe following two
years, but no decision was reached.1°‘ On April 6, 1909, De la Barra,
the‘Mexican Ambassador, urged the treaty on the newSecretary of
State, Knox. 105 , Knox was unwilling to accept the Godoy plan and instead
suggested a return to the idea of enlarging the commission by adding a

Canadian jurist. . Knox also proposed to maintain the status quo in the

 

lo‘ZMemoriaDocumentada, Vol. 111, pp. 989-991.
1”Memoria Documentada, Vol.4 111, pp. 992-994.
""Memoria Documentada, Vol. 111, pp. 997-999, 1000-1004.
105Memoria Documentada, Vol. 111, pp. 1005-1006.

 

 

 

 

40

Chamizal tract and to stay proceedings of dispossession against all people

able to show prima facie evidence of Mexican titles to land in the
106

 

rChamizal area.
De la Barra's answer to Knox of January 15, 1910, was a re-

affirmation of Mexico's old position thatthe Rio Grande boundary was

fixed and immutable. In support of this contention De la'Barra cited

Frelinghuysen's affirmation of the "fixed line" theory in 1884 and stressed

Root's acceptance in principle of the Go-doy proposal. Godoy's plan accord-

ing to De la Barra was based 'on the fixed-line boundary theory. It seems,

however, that Godoy, instead of calling for acceptance of a fixed boundary

as a basis of negotiations, advocated the establishment of a fluvial

boundary subject to international law. It is not clear,:therefore, as to

how De la Barra arrived at his interpretation. Knox at once rejected

De La Barra's contention and the subject was dropped for the time being.107
i In the ensuing diplomatic correspondence Mexico showed serious

interest in a new convention dealing specifically with the problem of

E1 Chamizal. As a result Knox presented De la Barra with a draft of a

convention which was to be the basis for negotiating the Chamizal dispute.

In essence it was a restatement of the ideas advanced by Creel. In other

letters Knox also guaranteed the property rights of settlers with rima

facie Mexican-land titles. He designated Wilbur‘Keplinger, an American

 

official on the-Commission for the Equitable Distribution of the Waters

of the Rio Grande and Colorado, to judge the validity of these titles.

‘ The‘Mexican Government was in an agreeable mood and within twolmonths,
on June 24, 1910, a convention was signed putting the Chamizal question

up for arbitration.

 

106Memoria Documentada, Vol. III, pp. 1006-1008. 1022-1026-

 

loI'Timm, Int. Bound. Comm., pp. 157-158.

 

41
ARBITRATION OF EL CHAMIZAL

The convention of June 24th, 1960, provided that "the United
States of America and the United States of Mexico, desiring to terminate,
in accordance with the various treaties and conventions now existing
between the two countries, and in accordance with the principles of inter-
national law, the differences which have arisen between the two govern-
ments as to the international title to the Chamizal tract, upon which the
members of the International Boundary Commission failed to agree, and
having determined to refer these differences to the said commission;
established by the convention of 1889, which for this case alone shall be
enlarged as hereinafter provided, have resolved to conclude a convention
for that purpose. . . ."108

The preamble of the convention was followed by a list of ten
articles which contained more specific provisions:

Article I, gave a geographical description of the disputed area.
It stated that "the Chamizal tract . . . is located at El Paso, Texas,
and Ciudad Juarez, Chihuahua, and is bounded westerly and southerly by
the middle of the present channel of the Rio Grande, otherwise called
Rio Bravo del Norte, easterly by the abandoned channel of 1901, and
northerly by the middle of the channel of the river as surveyed by Emory
and Salazar. . . . "

Article‘II dealt with the enlargement of the commission by the
addition of a Canadian jurist who was to function as a third commissioner
and was to preside over the deliberations. The two governments, Mexico
and the United States, were to select him by common accord. If they

could not agree the Canadian govermnent was to chose him.

 

108For. Re1., 1911, p. 566.

42

Article 111 provided that the commission was to decide solely
on the international title to the Chamizal tract. A unanimous or a
majority vote was to be binding on both governments and not subject to
appeal.

Article IV gave each government the rights to be represented
before the commission by an agent or counsel, who could make oral
argument, cross-examine witnesses and introduce new evidence.

Article V prescribeda time table for presenting evidence and
for reaching a decision.

Article VI dealt with the financial side of the arbitration pro-
cedure. Both sides were to share expenses equally in all cases where
they would derive equal benefit for a service, such as that rendered by
the third commissioner.

Article VIII provided that if the decision should be favorable to
Mexico, it should be executed within two years after the data the award
was rendered. In the meantime a status quo should be maintained in
the Chamizal tract.

.Article IX declared all previous propositions as to the settle-

ment of the case to be null and void. However, it did not forbid their use

as evidence.

It is interesting to study this selection of provisions for a
variety of reasons. First of all they state very clearly the paradox
which the Cha’mizal question had become. According to the preamble the

conflict was to be terminated in accordance with existing treaties as well

as with the principles of international law. .Since the treaties of 1848 and

1853 had never made mention of international law as the guiding principle
for solving river boundary problems, Mexico insisted that up to 1884

the Rio Grande boundary was immutable and artificial. The boundary
from the Mexican viewpoint was not subject to international law as far

as changes prior to 1884 were concerned. Because of this conflict

43

between the Mexican interpretation of the treaty of 1848 and the pro-
visions made for international law in the convention of 1910 the begin-
ning statement of the latter treaty became self-contradictory. ' It brought
on a mass of arguments which were based on opposing premises and
nevercame closer than denying the validity of each other‘s basic assump-
tions. Yet an exclusive statement in favor of international law might
have been quite acceptable to Mexico who had argued its case along these
lines in 1895.

The wording of the preamble also creates some doubts as to the
legality of the commission created to arbitrate the case. The second
article. combined with the initial statement declared this body to be a

109 changed only by the

commission set up under the treaty of 1889.
addition of a third member. Two points, however, made the commission
of 1910 radically different from that set up in 1889.

. First the decision to be made by the commissioners was given
such-a degree of finality and conclusiveness to make it wholly at variance
with the provision made in Article VIII of the treaty of 1889. This article
stated that either government could defeat a decision rendered by the
commissioners by simple disapproval within one month. Mariscal in
1897 had expressed this thought when he rejected the American proposal
toienlarge the commission and to make it an arbitral body. He held
that should such a commission be set up it would be without power to
function under the treaty of 1889.

The second point consisted of the unusual practise of using
agents to represent their governments, instead of commissioners as
required by the treaty of 1889. Altogether the function of the commission

was altered considerably and was basically different under the treaty of

1910 from the provisions of the treaty of 1889. ' Instead of merely ..

 

l°I9Statutes, Vol. LI, p. 38.

44

enlarging an already existing commission to be better able to deal with
a knotty problem, the convention of 1910 created an arbitral tribunal
which was to secure two of its three members from an already existing
boundary commission.

These discrepancies were overlooked and the respective govern-
ments entered into the process of selecting a third commissioner from
Canada.110 They agreed on Eugene'LaFleur, a Canadian jurist from
'Montreal, as the best candidate. LaFleur accepted, “I and on February
15, 1911, the two governments initiated the arbitration of the Chamizal
boundary dispute by exchanging well documented arguments for their
respective cases. Countercases were presented on April 10, 1911.

On May 15th the tribunal met and the agents summed up their arguments.
Thefinal verdict was handed down by Eugene LaFleur on June 15, 1911.

One of the key issues raised during these proceedings was
whether the treaty of 1884 reaffirmed recognized principles of inter-
national law which had been subscribed to by the two governments, or
whether this treaty marked a new departure. -In the latter case rules of
international law would have been substituted for a previously held con-
cept such as the fixed line theory. “2 Assuming that the treaty of 1884
was a new departure another question remained to be answered, namely,
whether it applied retroactively. Articles I and II of this treaty did not
expressly mention its application to past changes, but mainly referred to
(future changes. Another argument centered around the nature of the
changes that took place in 1864 and in the mid-eighteen seventies. Since
the treaty of 1884 had defined aluvion as "slow and gradual" erosion or

accretion, no real provision had been made for the possibility of rapid

 

110For. Re1., 1911, pp. 570-571.
”‘For. Re1., 1911, p. 571.

ll‘7’Tir‘nm, Int. Bound. Comm., p. 156.

 

45

erosion. Rapid erosion takes on an in-between position, neither fitting
the definition of aluvion as prescribed in Article I of the treaty of 1884,
nor sharing the characteristics of avulsive changes as described in
Article II of the treaty of 1884 and'Article IV of the treaty of 1889.

. Finally the United States raised an argument for ownership by prescrip-
tion.

The‘Mexican agent, Casasus, presented his initial case on
February 15, one copy of which went to the American commissioner while
another was handed to the presiding commissioner. It stated that the
Chamizal case had come into existence prior to 1884 and the treaty of
that year. . Because of this anteriority the Mexican argument ran that
Articles I and II of the treaty of 1884 did not apply to this case. ~ In other
words the treaty of 1884 was not retroactive. Next Casasus argued that
because of this non-retroactivity the only treaties applicable were those
of 1848 and 1853. These, the Mexican agent held, had established a fixed
and unchangeable boundary between the United States and Mexico.

Because of this permenant nature of the boundary line,:changes in the
course of the river could have no effect whatsoever on the boundary.
The Chamizal tract, therefore, belonged to Mexico. ”3

In its presentation of the "fixed-line" theory Mexico anticipated
the American contention that the boundary line established in 1848 was
arcifinious or natural. Had the‘Mexican argument been successful it
would not only have won this particular case, but would have set a
precedent for re-opening a number of other cases by questioning decisions
reached on the assumption that the treaty of 1884 was retroactive. The
'Mexican argument in support of the "fixed line" theory stated that if
Article V of the treaty of Guadalupe Hidalgo were studied only in its first

paragraph, it would seem to provide for the establishment of a natural

 

11i’Escoto, Int_e_gracion, p. 174.

 

46

and arcifinious boundary along the Rio Grande. ~ In this case changes
caused by erosion and accretion would place the boundary in the thalweg
of the river and a change in channel or an avulsive change would. leave

the boundary line in the former now deserted bed of the river. - Article V,-
however, in itslast two paragraphs provided for the boundary to be
marked precisely and accurately on maps and charts. The boundary,
therefore, was meant to be astronomically fixed. Otherwise such

special provisions would have been superfluous. By referring to the

. Morteritos Island dispute where‘Seeretary of State Frelinghuysen had
proclaimed the fixed'line theory Casasus tried to prove official American
adherence to his position. He also brought up the treaty suggestion by

, Jose Godoy of May 21, 1908 and its acceptance in principle by Elihu Root.
It will be recalled that Godoy's proposal provided for the abandonment of
the fluvial border set by previous treaties and called for the adoption of
the existing river channel instead. 1“ Casasus, echoing De la Barra,

felt that Root's acceptance in principle was further evidence of American
support of the "fixed-boundary" theory. The fluvial border set by
previous treaties, Casasus said, could be found in the charts of Emory
and Salazar. The basis of Godoy's proposal, therefore, according to
.Casasus, was a boundary line conforming to the charts of 1852. - It seems
improbable, however, that Root would have given the same weight to the
maps of 1852, completely forgetting about the treaty of 1884. .Casasus
contention, therefore, was logically unsound and unconvincing.

To lend support to his contention of the non-retroactivity of the
treaty of 1884 the Mexican agent referred to the preamble of that con-
vention-which stated that "to avoid difficulties which may arise through
the changes of channel to which those rivers are subject through the
operations of natural forces. . ~. " He interpreted this to mean that only

future changes were under the jurisdiction of the treaty of 1884.115

 

ll‘Carre‘r‘io, Mexico, p. 442.

115Escoto, Integracion, p. 175.

 

47

Dennis, the American agent, presented his initial argument in
more general terms. - Its main-ideas were that the treaties of 1848 and
1853 had established the middle of the river as the boundary between
the United States and'Mexico. In 1884, Dennis continued, both nations
accepted certain rules which were to be used in the interpretation of
all changes that had occurred‘in the course of the river. He also
reminded the Mexican commissioner that all during the first discussion
of the Chamizal case in 1895 the Mexican commissioners had argued
with reference to aluvion and avulsion as established in the treaty of 1884.
Mexico herself, he said, had made this treaty applicable to this arbi-
tration. Mexico's frequently held position of a "fixed-line" boundary was
irrelevant. The question to be answered during this arbitration was
whether the Chamizal tract was formed by slow and gradual aluvion or
because of avulsive changes.“6

To support his contention that the treaty of 1884 was retroactive
the American agent in his initial argument cited many cases of river
boundary changes that had occurred prior to 1884 but were-tried between
1895 and 1910 with reference to the treaty of 1884. .As examples Dennis
cited the four original 133199 cases. The International Boundary Com-
mission which examined these four in 1894 found erosion present at the
Banco de Camargo in 1865, and accretion at the Banco de Vela, the
Banco de'Granjeno and the Banco de Santa Margarita. Of the bancos
eliminated by the treaty of 1905,~ Dennis concluded, thirty- six had existed
prior to 1884. “7

To bolster his argument that the treaty of 1884 only restated
principles of international law already fully accepted by both sides,

. Dennis referred to the correspondence between Seward and Romero in

 

ll"Escoto, Integracion, pp. 176-177.

n7Timm. Int- Bound.- Comm., pp. 142-143.

 

48

in themid-sixties and the Mexican treaty project of 1875. He also be-

lieved that Mexico, by not protesting Cushing's. opinion, had in fact
accepted it. In all these cases, Dennis argued, Mexico had relied on
international law as the criterion for solving river boundary disputes.
In fact Mexico .had abandoned the concept of a"'fixed-line" boundary long
before the treaty of 1884..Ila

After the two sides had studied their respective demands and
arguments they prepared their answers and exchanged them on April 10.
Both sides restated their previous positions. Dennis produced some
additional material to support his position in favor of' retroactivity. . He
cited the case of San Elizario, an. island located about 25 miles to the
south of El Paso. The dispute over the sovereignty of San Elizario
arose when the problem was presented to the International Boundary
Commission on November 4, 1895. Testimony by two witnesses showed
that in 1857 and 1858 the river hadchanged course very suddenly leaving
the community and island of San Elizario on the Mexicanside of the
main channel. In accordance with Article II of the treaty of 1884 which
covers avulsive changes the International Boundary Commission decided
on the basis of the testimony that the boundary was to remain in the
channel the river held prior to the avulsive changes of 1857 and 1858.
. This decision was approved and accepted by both commissioners.119

In answer to the Mexican contention of a "fixed-line" boundary
the American commissioner Dennis asked whether it was ". . . reason-
able to suppose that commissioners Emory and Salazar would have
thought that this slight, but well-known difference in their maps of the
river could in no way affect the boundary line if the boundary line were

fixed and invariable?" Dennis expressed his conviction that neither the

 

naTimm, Int, Bound. Comm., p. 159.

 

“.9Escoto, Integracion, p. 177.

49

surveyors nor the commissioners thought that they were marking a fixed
line upon a fluvial boundary. , Emory's and Salazar's surveyswerenot
identical,“ although they were made within six months of each other. Yet
the commissioners stated that this would make no difference. This
attitude, Dennis felt, showed that they were not thinking of the boundary
as a fixed and immutab1e1ine.”° ‘

- On ‘May 15th a tribunal was set upiat the Headquarters of the
United-States Supreme Court in Washington. Both parties confronted one
another for their final arguments. The Mexican agent, Casasus, reiterated
all he had said in his initial and in his counter argument. .He then entered
into a lengthy study of the meaning of the terms avulsion and aluvion by
citing numerous private and international boundary disputes. He concluded
by stating that international law was agreed that aluvion must be slow and
gradual. This, he continued, was exactly what Article I of the Treaty of
1884 had provided. From documents and the testimony of witnesses,
however, it had been shown and proven repeatedly that the changes under
consideration were not slow and gradual, but rapid and violent instead.

The boundary therefore, he concluded, remained unchanged and the
Chamizal tract properly belonged to Mexico. 121
The American agent, Dennis, in his final argument once more
attacked the-Mexican contention that the boundary line was astronomically
fixed. 1 He again stressed his conviction that the treaty of 1884 was retro-
active. After citing the case of San Elizario and the numerous occasions
when Mexico had supported directly or indirectly the retroactivity of the
treaty of 1884, he declared the Chamizal tract to be American by right of
prescription. This was so, he held, because the United States had occupied

the area uninterruptedly for more than fifty years. 122

 

l"'°Tirmn,-Int. Bound. Comm., PP- 148'149'

 

121Escoto, Integracion, pp. 177-178.

 

12zEscoto,‘ Integracion, pp. 178-179.

 

50

On June 10, 1911, the commissioners 'met to ballot for the
purpose of arriving at a decision upon a number of“ questions.123 The
first question presented to the commissioners asked whether the
boundary line established by the treaties of 1848 and 1853 along the
Rio Grande was fixed and invariable. The Mexican commissioner voted
*in the affirmative; the American as well as the presiding commissioner
voted "no. " The second question dealt with the American claim of
sovereignty over the Chamizal by right of prescription. All the com-
missioners, including the American commissioner, denied that the
'United States had a valid claim because of prescription. -Next they voted
on the problem of retroactivity by asking whether the treaty of 1884
applied to all changes in the river subsequent to 1852. As was to be
expected the Mexican commissioner voted "no, " while the American
voted' "yes. " The presiding commissioner voted in favor of retroactivity.
Question four consider ed whether ". . . the whole of the Chamizal tract,
as defined in the convention of 1910 was formed by slow and gradual
erosion and depositof alluvium within the meaning of Article I of the
convention of 1884. " The Mexican commissioner voted "no"; the
American commissioner voted "yes" and the presiding commissioner
voted "no. " The fifth question asked whether the formation of the
Chamizal tract up to 1864 was due to slow and gradual erosion and deposit
of alluvium within the meaning of Article I of the treaty of 1884. Both
the Mexican and the presiding commissioner voted "yes. "

Mills knew that the only direct answer to this factual question
was "yes. " But he also realized that such an answer would open the way
for a division of the Chamizal tract into two sections, a very small one
created slowlyin the years immediately preceding 1864 and another

section comprising most of the disputed area, created by the floods of

 

”3PM- Re1., 1911, pp. 572-573.

51

the eighteen- sixties. Such a division would have been much to the dis-
advantage of the UnitedStates, for under the majority interpretation of
Articles I and II of the Treaty of 1884 only the smaller section would
have become American territory. The American commissioner,.there-
fore, took refuge by attacking the legality of sucha division. .He declined
to vote on grounds that Article-I of the Treaty of 1910 specifically
bounded the Chamizal tract with technical accuracy, while Article III of
the same treaty made it clear that "the commission . . .7 should decide
solely and exclusively as to whether the international title to the Chamizal
. . . was in the United States of America or in ‘Mexico. " Mills expressed
his belief that the commission was not empowered to divide the Chamizal
tract between the two countries. — He strongly felt that in dividing the
disputed area between the two contestants the commission was taking
action- "which was neither requested nor contemplated by either party. "
He also believed that the majority of the commission in dividing
the Chamizal tract was about to. apply a standard to a portion of the
disputed area which was not permitted by the treaties in force between the
two countries. He stated that the convention of 1884 recognized only two
Classes of change in the channel of the river through natural causes.
- One was through the slow and gradual erosion and deposit of alluvium,
or erosion; the other was by the abandonment of an existing river bed
and the opening of a new one, or avulsion. The commission, he held,
was not entitled to apply one class of change at one time and the second
class at another time.
. Finally the commissioners were askedto vote on the question
whether the whole erosion which occurred in 1864 and after that date
was slow and gradual within the meaning of the treaty of 1884. The
'Mexican commissioner voted that it was not slow and gradual from 1864
to 1868. . For the period after 1868, he said, he had no data to enable him

to give an answer. The presiding commissioner voted that the erosion

52

which was caused by the flood of 1864 was not slow and gradual within
the meaning of the convention of 1884, nor was the erosion during the
succeeding years up to and including 1868 of that character. - ". . . it
is immaterial whether the erosion subsequent to that date was slow
and gradual or not, inasmuch as the river had ceased to be the inter-
national boundary. "

The American commissioner «again declined to vote for the
reasons he had stated already. In addition he said that it would be wholly
impracticable and impossible to locate the position of the river'in 1864.

. Even if the commissioners, he stated, were empowered to render a
decision segregating that portion of the tract formed after 1864, their
decision would be void' "because it is indeterminate, indefinite and
impossible of accomplishment" on account of the impossibility of relo-
cating the channel of 1864. . He furthermore pointed out that even if the
commission were empowered to segregate the Chamizal tract and even
if it were possible to relocate the river channel of 1864, the evidence
conclusively showed that violent and rapid erosion could have taken place
only at certain points where the river impinged upon the banks with
peculiar force. , It was, in his judgment, the duty of Mexico to establish
by the preponderance of evidence the identity of any portion of land
within the Chamizal tract alleged to have been formed as a result of
violent and rapiderosion. He also questioned that violent and rapid
erosion was the same as avulsion.

This closed the voting and the presiding commissioner was asked
to prepare the award in accordance with the above votes. ~ The Mexican
and American commissioners were asked to submit their Opinions on
the points on which they dissented.

. After studying the diverse documents presented by both sides
in the course of argument, the presiding commissioner, Eugene LaFleur,

formulated his verdict and presented it on» June 15, 1911. The document

53

analyzed all the theories discussed, rejecting those of a "fixed-line"
boundary and the one whichadvanced right of possession by prescrip-
tion. It also contained the dissenting opinions of the Mexican and of
the American commissioners.

LaFleur came to the following conclusions. He rejected the
"fixed-line" theory advanced by Mexico, because he felt that the marking
of the boundary in 1853 was primarily for the purpose of creating a
record of the original riverbed, should the Rio Grande cut a new channel.
. The course of the river, as described by the Treaty of 1848 and as it
existed at the time of the initial survey, was not at all in discord with
the rules of international law. Likewise, he stated that although one
might make a case for a fixed line boundary when considering the treaty
of 1848 all by itself, the manner in which the commissioners Salazar
and Emory disregarded changes in, course as insignificant made the
artificial boundary theory advanced by Mexico difficult to accept. .He
also emphasized Mexico's de facto acceptance of Cushing's opinion in
1864 and 1875 and the treatment of San Elizario in 1895 as proof not
only of Mexico's repeated acceptance of the natural boundary viewpoint,
but of the retroactive nature of the treaty of 1884 as well. The treaties
of 1848 and 1853 in the Opinion of the presiding commissioner created a
natural boundary and the treaty of 1884 applied retroactively to all
changes in the course of the Rio Grande since the time of the initial
survey.

Concerning prescription the presiding commissioner stated
that "upon the evidence adduced it is impossible to hold that the possess-
ion of E1 Chamizal by the United States was undisturbed, uninterrupted
and unchallenged from 1848 to 1895. As early as 1856, changes which
threatened in the El Paso-Juarez valley, had caused inquiries and had
resulted in the Opinion of the Attorney General Cushing. Much corres-

pondence concerning E1 Chamizal occurred between the two nations up

54

to 1884 which by its very existence precluded title to the area by
prescription.

. In agreement with the Mexican commissioner, LaFleur held that
up to 1864 the changes which created El. Chamizal had been slow and
gradual. After 1864 the changes could not "by any stretch of the imagi-
nation or elasticity of language be characterized as slow and gradual. "
While accretion to the American bank may have been slow and gradual,
he added, the treaty of 1884 provided that both accretion and erosion
would have to be slow and gradual.

As to the United States contention that under the treaty of 1910
the commissioners were not authorized to divide the tract, LaFleur quoted
the decision of the United States Supreme Court in the case of Iowa vs.
-Nebraska. - In that case the court ruled that up to 1877 the changes in the
‘Missouri were due to accretion, while in that year the river cut a new
channel. The decision was that as far as accretion was concerned the
boundary had moved with the river. After 1877 the boundary had not
changed from where it was when the new channel was cut. ”’4

Immediately the American commissioner Mills filed a dissenting
Opinion on behalf of the United States.125 He attacked the legality of the
award by stating that the Nebrasks-Iowa ruling of the Supreme Court had
no bearing on the Chamizal decision. He pointed out that there was a
cross distinction between the Supreme Court and its constitutional power
to decide disputes between states, and the powers of the Boundary Com-
mission which was limited not only by the treaty of 1910, but also was
bound by the treaties of 1884 and 1889. He stated that "it is axiomatic
that 'a clear departure from the terms of the reference' invalidates an

international award, and the American commissioner is constrained to

 

I“For. Re1., 1911, pp. 573-586.
125For. Re1., 1911, pp. 587-594.

55

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. "126
As to the majority's interpretation of the nature of the change
of course which occurred after 1864,. Mills held that Article II of the
treaty of 1884 made no provisions regarding avulsive changes other
than those consisting of "cutting a new bed" or‘ "deepening of another
channel than that which marked the boundary at the time of the survey. "
The changes which occurred after 1864 were not avulsive, Mills held,
because "cutting of a new channel" and "deepeningof another channel . . . "
were specific terms which qualified the general beginning of Article II
of "any other change wrought by the force of the current. "127
Mills also contended that the United States had vested rights
in the Chamizal tract. The American land holders in the Chamizal tract
for decades had been working a land which not only had been destroyed
and completely altered by rapid erosion when being transferred from
the Mexican to the American bank, but because of this destruction had
lost the property rights of previous owners.”8
9 He furthermore expressed his belief that "not by any stretch
of the imagination . . . [can] any character of erosion and deposit . . .
be brought within the meaning of Article II of the convention.- " If, as
the two other commissioners contended, Article I was not applicable,
the whole treaty of 1884 was inapplicable and the commissioners would

have to take recourse to the principles of international law for rules to

govern their decision. . Under international law aluvial change would

 

l“"‘{’For. Re1., 1911, p. 588.
127’1?or.Re1., 1911, pp. 588-589.
”iron. Re1., 1911, pp. 589-590.

56

carry the boundary with it, no matter how rapid this change might be,
provided only that the growth of the other bank was accomplished by
the gradual deposit of alluvium. . Such he conceived to have been the
undisputed fact. Again the rules of the treaty of 1884 were not applied.
By failing to apply these rules the commissioners had departed from
the terms of submission and had invalidated the award. 129
Finally Mills stated that the award would be void anyway for
uncertainty. It would be practically as impossible to relocate the
boundary where it had been in 1864 as "to locate the Garden of Eden. . . .- "
The American commissioner also felt that even if there were a way of
determining the point where slow erosion becomes rapid erosion the
practical application of such a distinction would cause nothing but the
greatest calamities. The greater part of the Rio Grande had changed
intermittently in a rapid or slow fashion since 1853 making every mile
potentially another Chamizal. The award, in his opinion determined
nothing and settled nothing. - It only represented an invitation for inter-
national ligitation and unauthorized compromise. 13°
The Mexican commissioner also stated a dissenting opinion.
However, after voicing his disagreement with the retroactive applica-
tion of the treaty of 1884 and after reaffirming, his belief in a- "fixed-line"
boundary along the Rio Grande he suffered to be overruled on this point
and'felt obligated to accept the award.131
Eugene LaFleur then proceeded to give title to the Chamizal
tract in part to Mexico and in part to the United States. The award stated

"whereby the presiding commissioner and the Mexican commissioner,

constituting a majority of said commission, hereby award and declare

 

129For. Re1., 1911, pp. 590-591.
13°For. Re1., 1911, pp. 593-594.
131For. Re1., 1911,pp. 594-597.

57

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 river as it existed
before the fldod of 1864, is in the United States of America, and the
international title to the balance of the said Chamizal tract is in the
UnitedStates of Mexico. The American commissioner dissents from
the above award. " The document was signed by the three commission-
ers and the arbitral stage of the Chamizal dispute was officially over.132
The United States rejected the arbitral decision and declared
itself unable to accept it for the reasons given previously by Mills.
While announcing the formal r ejection the American government made
a number of proposals for solving the apparent deadlock. -It suggested
that the two nations should enter into a new boundary treaty to settle the
Chamizal dispute on the following basis. First, there should be a
recapitulation of all pertinent boundary treaties and differences in their
interpretation. Secondly, formal declaratory statements should be
issued agreeing that the treaties of 1848 and 1853 established an arci-
finious river boundary and that the treaty of 1884 applied retroactively
recognizing only erosive and avulsive changes. Thirdly, provisions
should be made for the settlement of the Chamizal question. Lastly
private parties were to be indemnified for damages incurred through
such provisions. The temporary Mexican President Dela Barra refused
to accept any departure from the award. On August 31, 1911, the State
Department notified Mills not to join in any further discussion of river

changes unless specifically authorized.133

 

l3“For. Re1., 1911, pp, 586-587.
133For. Re1., 1911, pp, 593-600.

58

On June 28, 1912, the United States presented to Mexico another
plan for solving the Chamizal dilemma. The plan contained a proposal
for a convention which centered around the mutual rejection of the theory
of rapid erosion as interpreted by LaFleur. It also asked for mutual
recognition of a boundary line in the middle of the river channel at
E1 Chamizal, the Cordova tract and the Horcon bar, thus recognizing
United States sovereignty over the fir st and providing for mutual exchange
of the latter two. The new convention was to include also guarantees by
the United States of Mexican titles in the Cordova tract and by Mexico-of
United States titles at Horc6n. ‘3‘
In a letter of January 27, , 1913, Mexico replied to the United
States treaty proposal and suggested in turn a treaty of its own. Mexico
proposed that both countries adhere to the same attitude as before.
It asked that equal tracts of land be exchanged and that the Chamizal
award should not be considered a precedent. Three officials, one American,
one Mexican and one neutral, were to examine property titles. The United
States was to pay off those whose titles to land in the Chamizal tract were
valid. The Chamizal award itself was to be invalidated, and Mexico was
to recognize 'United States sovereignty in the area in return for the de-
liverance of an equal area elsewhere along the Rio Grande. This counter
proposal marked the end of efforts by the Madero administration. NO
response was forthcoming from the United States.135
In January, 1913, H. L. Wilson, the American Ambassador to
Mexico, informed Secretary of State‘Knox that the provisional govern-
ment of Victoriano Huerta had tentatively offered relinquishment of
E1 Chamizal in exchange for San Elizario and Morteritos Island. De la

Barra,, who made this proposal, however added that Mexican sentiment

 

l3‘For. Re1., 1913, pp. 968-969.
135For. Re1., 1913, pp. 971-972.

59

and public opinion would have to be prepared first.”6 A telegram by
Henry Lane Wilson to Knox marks the end of negotiations in 1913:
' "President Huerta has in effect refused further to consider the Chamizal
question until such time as the United States recognizes his adminis-
tration. " 137

In 1918 the International Boundary Commission discussed a
river rectification project which called for mutual exchange of special
areas. During the discussions the American commissioner Hill offered
the Mexican commissioner Prieto portions of San Elizario in return for
Mexico's relinquishment of the Cordova tract. - The United States also
would carry all the expenses of river rectification if Mexico were to
give up its claim to E1 Chamizal. Prieto's answer that he was not
authorized to discuss El Chamizal ended this short lived attempt at re-
0pening the issue. On and off the Chamizal question appeared in news-
papers or magazine articles. Often an imminent solution was predicted.

But no real progress was made until the year 1962,138

SOLUTION

For fifty years after 1911 neither side seemed prepared to
change the position adopted during and immediately following the arbi-
tration award. - Mexico continued to adhere to the fixed line theory and
demanded execution of the award of 1911. The‘United‘States seemed
quite happy with things as they stood. As years passed it became less
and less likely that either side would budge from a position taken so long

ago that it had become traditional.

 

136For. Re1., 1913,. pp. 972-973.
l3.7For.aRe1., 1913, p. 976.

138Timm, Int. Bound. Comm., pp. 171-172.

 

60

Yet on July 18, 1963, the Presidents of Mexico and the United
States announced their agreement to conclude a convention for the settle-
ment of the Chamizal dispute. 139 The settlement they recommended
, adopted the solution prOposed in the international award of 1911. Accord-
ingly the United States would transfer to Mexico 437 acres in the vicinity
of El Paso. Referring to previous exchanges of territory, such as the
1933 agreement to straighten the river just below El Paso, the 1963 con-
vention proposal states that the problem of maintaining the river as the
boundary existed here as well as in previous boundary adjustments on the
Rio Grande and similar transfers of territory would be involved.

Next to the Chamizal tract, Cordova island, an area of about 386
acres under the jurisdiction of Mexico jutted into El Paso north of the
river. Simply transferring the Chamizal tract to Mexico would only have
increased Mexican territory on the north side of the Rio Grande. - For
this reason the two governments agreed that in any settlement the Rio
Grande-should be relocated. This would restore the river as the inter-
national boundary for- its entire course in the vicinity of El Paso.

The recommended terms of the presidential agreement called
for a net transfer to Mexico of 437 acres of territory now under the juris-
diction of the United States. . Of this area 366 acres would actually come
from the disputed Chamizal tract. Another 71 acres would be taken from
the American territory to the east of Cordova Island. Cordova itself
would be divided equally between the United States and Mexico. -The
UnitedStates would transfer to Mexico from the 193 acres it would receive
out of Cordova Island an equal acreage from the American territory to the
east of Cordova. . Channelization would relocate the course of the Rio
Grande and once again make it the boundary between the United States

and Mexico. Cordova Island would therefore be eliminated.

 

139U. S. ,. Department of State, Press Release, No. 375, July
18, 1963, 9 pp.

 

61

All private titles within the areas to be exchanged would fall
to the respective governments. Land and improvements would be
transferred without encumbrances of any sort. - Neither country was to
make any payments to the other for lands exchanged. A private
'Mexican bank, however, would pay the United States for the value of the
structures passing intact to Mexico. .Costs for relocating the river
channel would be borne equally by the two governments.

Once the convention was approved and was in force the Inter-
national Boundary Commission would agree on a time for the transfer of
the areas. , The actual relocation of the Rio Grande and the transfer of
sovereignty would take place when the United States Commissioner had
certified that the acquisition of the properties and the evacuation of the

occupants had been completed.

CONCLUSION

The unsatisfactory outcome of the Chamizal arbitration of 1911
poses two questions. - First we can ask ourselves whether the United
States was justified legally in its rejection of the award, because it was
‘ "rendered outside of and beyond the terms of agreement" stated in
Article“ III of the convention of 1910. The second question depends on a
negative answer to the first and inquires into the real meaning of

' Article" III.

The American and Erglish Law Library, one of the standard

 

guides to international and public law of that period, tends to answer
question one in the affirmative. . It describes international arbitration
to be'"a mode of settling disputes between two or more states by sub-
mitting the controversy to the ultimate decision of third parties .. . .

the award of the arbitration is as binding upon the parties to it as any

62

treaty obligation. " The same work continues to list circumstances under
~which an arbitral award might be avoided as when "'the tribunal has
clearly exceeded its powers asconferred by the treaty of arbitration. . . . "14°

The United States rejected the award because it felt that the
arbitral decision was unrelated to the terms of submission and therefore
had‘invalidated the award, This was not the first time that the United
States or- any number of nations had rejected arbitral decisions on the
grounds just stated. A good example is given by the abortivesettlement
of the Northwest Boundary controversy between the United States and
Great Britain in 1828. In that case the arbitrator, the King of the
‘Netherlands decided that "neither the line claimed by the United States
nor the line claimed by Great Britain so nearly answered the require-
ments of the treaty that a preference could be given to the one or the
other. " "Instead the arbitrator recommended a line of convenience thereby
disregardingithe line described in the arbitration convention of September
12, 1827 between the United States and England. The Senate of the United
States in turn voted against the award and rejected it because the arbiter
had departed- from the terms of submission. 1“

Yet the quoting of precedent and international law does not in
.itself lend any support to the position adopted by the United States in 1911.
The crux of the, matter lies in the interpretation of Article III of the treaty
of 1910.

Article III if'proVided that the Commission shall decide solely
and exclusively as to whether the title to the Chamizal tract is in the

' United-States of America, or in Mexico." The United States felt that the

awardhad divided the Chamizal tract, creating a development which was

 

» 1“’Arnold Bennett Hall, "International Law, " American and
- English Law Librar_'y (La Salle Extension University, 1913), Vol. X, .p. 65.

 

 

VulJohn Bassett Moore, History and Digs st of the International

.Arbitrations to which the United States has been a‘Party (Washington,
1898),. Vol- V, pp. 4740-4742.

 

 

63

not intended by those who drew up the treaty of 1910. - Mexican opinion
expectedly stressed the legality of the award. This viewpoint is ex-
pounded in the writings of the Lic. Cesar Sepulveda, the Director of
the Faculty of Law of the National University of Mexico. Sepulveda in-
sists that the intent of Article III "was simply to insure that the
Commission dealt only with the territorial question, rather than with
ancillary matters such as water rights. "147‘ In other words the Com-
missioners were left free to solve the problem in a manner acceptable to
a majority of the arbitral tribunal provided only they stayed within the
limits of the territorial question.
It is difficult to read a clear meaning into the provisions of

Article III standing by itself. On this basis alone one could justify or
reject the American rejection of the award depending on one's loyalty.
However, if one considers that it was well-known to those concerned
with the arbitration that the changes which had taken place in the river
bed near El Paso since 1852 had been both avulsive and aluvial at dif-
ferent times in various places, matters take a turn in favor of Mexico.
It becomes rather hard to believe that the United States when signing
the arbitration treaty had expected a decision solely in favor of aluvion
or solely in favor of alvulsion as the cause and creator of the Chamizal

tract. Such would have been necessary to dispose of the Chamizal tract
in its entirety. Yet to make a decision in favor of aluvion to the exclu-
sion of avulsion or vice-versa was obviously impossible. On the basis
of the weak American argument for rejection of the award we continue
to ask ourselves: "If no solution could be expected, why then did the
United States enter an arbitration agreement in the first place?"
A plausible answer is not to give El Chamizal as a complete unit either
to Mexico or to the United States, but to dispose of the territory in an

atmosphere of compromise.

 

14'ZGladys Gregory, "The Chamizal Settlement, A View from
El Paso," Southwestern Studies, Vol. I, NO. 2 (Summer, 1963), pp. 34-35.

 

64

-Perhaps the American delegation hoped for a larger share or
most of the tract on the basis of their position that a change involving
rapid erosion, but gradual deposit of aluvium was properly classified as
aluvion. 3 It is possible that the American statesmen found it politically
unwise or detrimental to the prestige of the United States to cede
territory to a second rate power. The true cause of the rejection of the
award can only be guessed at..

The accord which Mexico and the United States achieved in
1963 does not mean that the two nations have reached common ground as
to their views concerning the nature of the Rio Grande boundary. Instead
it represents a wise attempt at removing a traditional reminder for
' Mexico of American expansionism. When President Kennedy admitted
that the position held by the United States Since it rejected the award of
1911 was in error he not only Opened the way for a settlement of the
controversy but also wiped away decades of distrust by Mexico of America's
Latin American policy. The manner in which the Chamizal question is
approached in 1963 makes discussion of the nature of the river boundary
an academic subject. By providing for a channelled and concrete-lined
.Rio Grande both nations found a face saving way out of an unwanted

dilemma.

 

vv-vvv

Bl‘li

 

 

 

/

 

EN I852 AND I907

THE RIO GRANDE

 

 

 

, /
// RiLATIVE POSITIOEOF
. EAR EL PASO E
4 w

 

 

 

 

 

 

 

 

 

 

 

 

ANNOTATED BIBLIOGRAPHY

PRIMARY SOURCES

 

Collections of documents

 

Comisi6n Internacional de‘ Li’mites, entre Mexico y los Estados Unidos,
Secci6n'Mexicana. ~Memoria Documentada del Juicio de Arbitraje
odel Chamizal. III Vols. -Mexico, D. F., 1911. Vol.11, p. 646;
Vol. 111, pp. 969-1026.

One of the best approaches to an understanding of the Mexican
position during the arbitration stage of the Chamizal dispute is
through this collection of official documents. Aside from repre-
senting the day by day proceedings of the arbitral tribunal it also
contains a large number of documents from earlier controversies,
not only over E1 Chamizal, but other boundary disputes between the
United States and Mexico as well.

(International Boundary Commission; United States and Mexico. Treaties,
Joint Rules Governingthe Commission, Personnel. Washington,
1929. 26 pp.

This is a collection of treaties between the United States and
Mexico concerning the Mexican-American boundary. - It has been a
time saver and handy reference guide.

Moore, John Bassett. History and Digist of the International Arbitrations
to which the United States has been a Party. Washington, 1898.. Vol.
V, pp. 4740-4742.

A standard guide and complete collection of arbitration treaties
and conventions involving the UnitedStates and Foreign powers. It is
especially valuable for its account of decisions and their bases in
precedent and international law.

. Opinions of the Attorneys General of the United States. (Washington,
.Vol. VIII, p. 175.

This is a collection of interpretations of public issues by
Attorneys General.

66

67

Richardson, James D. ACompilation of the Messages and Papers of the
Presidents. XI Vols. Washington, 1911. Vol. IX, p. 187; Vol.
VIII, p. 815.

This is a collection of presidential papers and messages from
Washington to Taft. Unfortunately it is only of limited usefulness
to the scholar since it leaves out a great number of documents not of
popular interest.

 

 

Senate Documents

 

U. S. Congress, Senate, 3lst Congress, lst Session. Executive Document
No. 34. Vol. X, 53 pp.

To those interested in the history of California immediately
following the treaty of Guadalupe Hidalgo this series of letters
between the American Boundary Commission and the Department of
State will be an interesting source. While primarily dealing with the
problems encountered in marking the boundary between San Diego and
the Colorado River. Doc. No. 34 also gives a first hand account of the
difficulties encountered in securing laborers because of the California
gold rush.

 

U. S. Congress, Senate, 32d Congress, 2d Session. Executive Document
No. 38. Vol. 111, pp. 2-4.

Differences of opinion among the members of the American
boundary commission concerning the nature of the river boundary were
not uncommon. _ For some statements to that effect this is the source
to see.

 

U. 8.. Congress, Senate, 32d Congress, 1st Session. . Executive Document

No. 119. Vol. XIV, pp. 7-9, 121,_ 300-305, 392-393.
This is a very complete collection of official and personal corres-

pondence relating to the work of the boundary commission along the
Rio Grande. It proved extremely valuable to this author, because it
contained a large number of Mexican documents as well, thereby
giving some insight into the basis of latter boundary positions held by
Mexico.

 

U. S. Congress, Senate, 33d Congress, 2d Session. Executive Document
No. 55. Vol. VII, pp. 14-16.

- It consists of a number of official and personal letters dealing
primarily with the controversy surrounding the point of contact be-
tween the Rio Grande and the southern boundary of New Mexico.

Of special interest might be the correspondence leading to the dis-
missal of the surveyor Gray.

 

68

U.. S. Congress, Senate, 34th»Congress, lst Session. Executive-Docu-
ment No. 108. Vol. XX, part 1, pp. 5, 16, 26, 35, 90-92.

On the subject of the early South-West we find here one of the
most authoritative treatments. This report on the United-States-
Mexican Boundary survey was edited by William H. Emory, the head
of the American boundary commission. It is divided into three parts.
.Part one gives a thrilling account of the dangers encountered by the
surveying teams because of hostile Indians, bandits and natural
calamities. Parts two and three are an illustrated description of the
flora and fauna of this border region respectively.

 

 

U. S. Congress, Senate, 50th Congress, 2d Session. Executive Docu-
ment No. 144. Vol. IV, pp. 1-62.

This is a series of documents covering boundary problems in
the Chamizal tract prior to the treaty of 1884. , It particularly deals
with the building of bridges across the Rio Grande between Juarez
and El Paso.

 

 

U. S. Congress, Senate, 55th Congress, 2d Session. .Executive Document
No. 247. Vols. XXIII-XXIV, pp. 11-12. Report of the Boundary
Commission upon the Survey and. Remarking of the Boundary between
the United States and Mexico West of the Rio Grande.

This document is of little importance for those interested in the
Rio Grande boundary, since it deals almost exclusively With the
American-Mexican land boundary.

 

State Department Documents

 

U. S. ,. Department of State. Papers Relating to the Foreign Relations
of the United States; with the Annual Messageof the President to
Congress, . Dec. 3, 1900. Washington, 1902, pp. 786-788.

 

 

 

U. S.. Department of State. Papers Relating_to the Foreig_n_Relations of
the United States: with the Annual Mes sag§_of the President Trans-
mitted to ngress, December 7, 1911. Washington, 1918. pp.
565-605.

This volume of the Foreigg Relations contains the award
rendered by Eugene LaFleur and the dissenting opinions of both
Mexico and the United States. The arbitration convention of 1910
and some of the official correspondence including the rejection of
the award by the United States are also included. . Needless to say
this has been one of the most critical sources.

 

 

 

 

69

.U. S. ,. Department of State. Papers Relatirggto the Foreign Relations of

 

the United States; with an Address of the President toCongress,
December 2, 1913. Washington, 1920, pp. 930-931, 968-977.

This volume contains a selection from the official correspondence
between Mexico and the UnitedStates concerning the reopening of
negotiations on the Chamizal boundary issue after the American
rejection of the award.

 

 

U. S. ,. Department of State. Press Release'No- 375. July 18, 1963. 9 pp.

U.

U.

 

This government press release contains recent information on
the circumstances surrounding the executive agreement between
-Presidents Lopez Mateos and Kennedy. — It gives a detailed account of
the conditions of the proposed settlement. There also is a mapshow-
ing the path of the proposed new course of the Rio Grande overlaid
over a city map of El Paso.

S- Statutes and Statutes at Largg

S. Statutes at LarLe and Treaties of the United States of America from

.December 1, 1945, to March 3, 1851, Arranged in Chronological Order;
with References to the Matter of Each Act and to Subsegent Acts on
the Same Subject. Vol. IV. Boston, 1863; pp. 922-942.

Treaty of Guadalupe Hidalgo, February 2, 1948.

 

 

. S. Statutes at Lagge of the United States of America Commencing with
, the First Session of the Thirty-Third Congres . Vol. XXXIII. Boston,

 

 

1854; pp. 123-129.
Treaty of December 20, 1853 between the United States and
Mexico.

U. S. . Statutes of the United States of American Passed at the First

U.

 

Session of the Forty-Seventh Coriggess, 1881-1882, and‘ Recent
Treaties and Executive Afleements. Vol. XLVII. Washington, 1882,
pp. 172-176.

Convention of November 7, 1882 between the United States and
Mexico.

 

 

S.- Statutes of the United States of America Passed at the First

 

Session of the Forty-NinthCongress, 1885-1886, and- Recent Treaties
and Executive‘Proclamations. Vol. XLI. Washington, 1886, pp. 37-
40.

 

 

Convention of November 12, 1884 between the United States and
Mexico.

70

U. S. Statutes of the United States of America Passed at the First Session
of the Fifty-First Congress, 1889-1890 and Recent Treaties and
'Executive Proclamations. Vol.4LI. Washington, 1890, pp. 32-38.
Treaty of March 1, 1889 between Mexico and the United States.

 

 

 

SECONDARY SOURCES.

 

Books

 

Carre‘fio, Alberto Maria. Mexico y los Estados Unidos de America.
Mexico, 1922. 521 pp.

Although giving to ‘a great extent'a detailed analysis of the Chamizal
boundary dispute, this learned author treats most of the other boundary
problems between the United States and Mexico in the 19th century as
well. It is of special value for its quotation of letters of obscure
Mexican boundary officials. This made it extremely valuable as a
means of understanding the attitude of the Mexican inhabitants of the

. El Paso area with regard to the. Chamizal boundary dispute. Carre'r'io,
though trustworthy as a scholar, is also a patriotic Mexicanand his
interpretations of facts and issues are usually aimed at proving the
aggressive nature of the American people.

 

. Emory, William Hensley. . Notes on the Survey of the Boundary Line
between Mexico and the United States. Cincinnati, 1851, pp. 5-7.

This is a paper read by Emory before the 5th meeting of the
American Association for the Advancement of Science, held at
Cincinnati, on May of 1851. It contains a general statement of Emory's
conception of the nature of the American-Mexican boundary.

 

 

Escoto, Ochoa Humberto. Integracion y Desintggacion de‘Nuestra
Frontera Norte. Universidad Nacional de'Mexico, Faculdad de
Derecho y Ciencias- Sociales Thesis. Mexico, D.- F., 1949. .213 pp.

A very valuable source of manuscripts and documents resting in
Mexican'Archives or those of the International Boundary Commission
at; El Paso, Texas. . It is based to a large extent on Alberto Maria
Carrefio's Mexico y los Estados Unidos, but lacks the excessive pro-
Mexican bias shown by Carrefio.

 

 

Garber,. Paul Neff. The Gadsden Treat . Philadelphia, 1924. pp.
This work deals with the treaty of Guadalupe Hidalgo and the
Gadsden treaty. It was of importance as a general source of back;-
ground information concerning the work of the boundary commission.

 

71

Gilpin, ‘ Laura. The Rio Grande, River of Destiny. An Interpretation of
the River, the Land, and the People. . New York“, 1949. xii, 244pp.
This is not a scholarly interpretation of conditions in the Rio
Grande valley. However, it was of use because it gave encyclopedic
information on such matters aslocal industry, the altitude of El Paso
or the number of acres under-cultivation at a certain locale.

 

 

Grotius,. Hugo. The Rights of War and Peace: Includingthe'Law of
Nature and of Nations. Translated by A. C. Campbell. Washington,
1901, pp. 106-107.

The section on the Law of Nature and of Nations was relevant in
the context of this thesis.

 

 

Hall, Arnold Bennett. American and Egglish Law Library. XIII Vols.
-La Salle Extension University, 1913. Vol. X, p. 65.

The American and Engiish Law Library is a standard work on
international and public law, featuring articles by prominent
authorities on a variety of legal subjects. The 1913 edition of the
Law Library was chosen over other more recent treatises on inter-
national law, because of its possibly greater applicability to the
problems of the early twentieth century.

 

 

Horgan, Paul. Great River: The Rio Grande in North American Histo_ry.

2 Vols.. New York, 1954. Vol. I, xv, 449 pp.; Vol. II, vii, 430 pp.

Of the subject of the settlement of the Rio Grande valley by the
Spanish to its newer function as a cultural, language and political
boundary Horgan gives an always interesting, detailed and well-
documented account. Particularly for the student of the history of
the settlement of colonial Mexico this work should be very valuable
because of its wealth of bibliographical material. I

Jones, Stephen B. Boundary Making, a Handbook for Treaty Editors,
Statesmen and Boundary Commissioners. . Carnegie Endowment for
International Peace, Division of‘hiternational Law, -Monograph'No.. 8.
Washington, 1945. xv, 268 pp.

A standard text familiar to most geographers. Its high repu-
tation is based both on its clarity of thought and its accuracy in the
quoting of sources.

 

Timm,. Charles A. The “International Boundary Commission United States
and Mexico. .University of Texas Publication. .No. 4134. Austin,
1941. 280 pp.

Timm's book has been accepted as an authoritative interpretation
of the history of the Mexican American boundary commission. - In con-
nection with the writing of this paper Timm ranks unquestionably as

 

72

the most important source of otherwise inaccessible State Department
documents dealing with the arbitral stage of the Chamizal boundary
dispute. The importance of these documents warrants their being
listed in this bibliography even though they were only used indirectly.
Their titles are: Chamizal Arbitration, Case of the United States of
America and Portfolio of Maps. Washington, 1911;: Chamizal. Arbi-
tration, Appendix to the Case of the United States of America,
Washington, 1911. 2 Vols; Chamizal Arbitration, Argument of the
United States of America, Washington, 1911; Chamizal Arbitration,
Countercase of the United States of America, with Appendix and
Portfolio of Maps. Washington, 1911.

 

 

 

 

 

 

 

 

 

Articles in Periodicals

 

Gregory, Gladys. . "The Chamizal Settlement, A View from El Paso, "
Southwestern Studies, Vol. I, 2 (Summer 1963), pp. 34-35.

Though seemingly happy about the pending settlement of the
Chamizal boundary dispute the author still defends the legalistic argu-
ments advanced by the United States in support of its rejection of the
Chamizal award of 1911. The primary value of this short article lies
in it being a succinct, condensed version of the dispute since its
presentation as Case No. 4, to its hoped for elimination in 1963.
Anyone, therefore, interested in a rapid overall comprehension of the
basic issues involved in the dispute will find a rewarding discussion
of the problem.

 

Reinhardt, G. _ Frederick. - "Rectification of the Rio Grande in the Juarez-
~El Paso Valley, " American Journal of International Law. .Vol. XXXI

(January, 1937), pp. 44-54.
This article contains a precise treatment of the history and legal

aspects of the river rectification conventions between theU. S. and
Mexico in 1933.

 

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