Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1852-12-11


missioner BARTLETT out of abundant caution to attach
his signature to the convention all posi-
bic objection which might be raised TO the agreement
the ground that it had not been authenticated in
conformity with the words of the treaty. Mr.. Gray
however refused TO sign the agreement and that fac
communicated to this Department by despatch from
the Commissioner AS foresaw that any difficulty which
might arise this point would necessarily affect oui
relations with Mexico felt it to be my duty to bring the
subject 10 the attention of the late Secretary Of State
Mr Webster and to ask his advice to what course
" was proper for me to pursue We examined the proy
sons Of the treaty together and concurred in the opinion
that the Commissioners alone empowered to decide
upon all disputes which might arise regard TO the boun-
dary and that the surveyors ministerial agents
to carry into effect the decisions of the Commissioners
and to authenticate them by their signatures. We re-
garded the relative functions Of the Commissioners ana
Surveyors bearing strong analogy to the duties OF
Commissioner and Surveyor appointed under order OF
court to make partition Of tract of land between two
joint owners 1t is the province of the Commissioner to
decide where the dividing line shall and Of the Sur
yeyor to and mark in conformity with his decision
The signatures of both, however properly re-
CURED to authenticate the report and to show that 1t
correctly sets forth the action Of both In conformity
with this view of the subject the Secretary of State ad
yised me to request Mr. Gray to sign the agreement 1
ing the initial point, and letter TO .nect was &C
cordngy addressed by me to Mr. Gray the stday of
October, 1851.
As the object of this letter to have been msun
dersood by many persons whose opinions entitled to
respect deem the present suitable occasion to
all doubts the subject In my judgment neither the
Department OF the Interior, the Executive Con-
gres have any power regulate control the action of
the officers designated by the treaty of Guadalupe Hdago
TO perform the duty Of ascertanng and marking the
surface of the earth the line between the countries
These officers derive their authority from the treaty
SELF Whch Is The joint act Of the too conacng parties, and
not from their respective Governments Their functions
those of arbtrators and their decision is in the
ture of an award which neither party set aside and
accordingly by the terms of the treaty it is expressly
stipulated that the result agreed by them shall be
deemed part of this treaty, and shall have the
force as if it were inserted therein"
In view Of this clear and distinct provision for the OBJ
servance of which the national faith has been soemny
pledged the Department of the Interior has claimed
exercised any right interfere with the action of the
commissioners. 1t has expressed official opinion to
the ncoectness of the point agreed upon
by the commissioners to the beginning point on the
Rio Grande of the southern line of New Mexico and if
had been satisfied that their decision clearly erro-
neous did not conceive that it competent to
alter modify In any particular what had been done by
them With the distinct declaration of the treaty before
me- that the result agreed upon by them shall be deem
ed part Of this treaty and shall have the force
if it inserted therein it would have been strange
had asserted any such right.
But it has been contended that the letter Mr. Gray
necessarily involves such pretenson certainly had
such purpose in writing that letter. the contrary
my object clearly to intimate to Mr. Gray that he
had neither coequa powers with the commissioners
control their action and that although
his signature might be necessary for the formal au
thentcaton of the convention between the two COM
it not essential to its validity, in like
manner as the signature of the Clerk of the Supreme
Court of the United States may be necessary to formal
certificate Of judgment of the inferior tri-
buna and the absence of that signature does
anywise affect the validity of the judgment itself
The objection to the action of the Department proceeds
upon the idea that the commission contemplated by the
treaty of Guadalupe Hdago consisted Of four members
two commissioners and two surveyors all possessing
equal powers If such be the construction Of the
treaty, then acknowledge have in with the
late Secretary Of State and his predecessor Mr Buch
anan misunderstood its provisins.
1t will be recoeced that the treaty of Guadalupe Hi
dalgo, which was proclaimed the 4th day of July,
lS4S was negotiated and concluded under instructions
issued by MIR. Buchanan The commission to run and
date supervision, by the appointment Of Mr. Weller as
commissioner and Mr.. Gray surveyor.
That Mr.. Buchanan did not regard the surveyor as
possessing equal powers with the commissioner be-
ing associate commissioner is obvious from the fact
that all his instructions the mode performing that
duty addressed to the commissioner alone and
TO the commissioner and surveyor jointly The language
OF the instructions tends also strongly repel such
presumption. In his letter to the commissioner under
date of February IL, l849 he says:
"Ayou win be held responsible for the able and faithful
execution Of the important trust eOnhdeeo you by this a
Gle Of the treaty. the President deems it proper leave
you the organization Of the commission"
Again he says in the same letter:
In organizing the commission you referred for any
necessary IL
Gray, ESQ., who has been appointed surveyor"
After the transfer Of this service from the State De-
parment TO the Department Of the Interior my prede
cessor Mr. Ewing following the Interpretation which had
been given TO the treaty by the Department of State d
rected all his instructions to the commissioner alone and
not TO the commissioner and surveyor Jointly aud have
continued 10 pursue the course.
The records Of the Department contain nothing TO show
that while Mr. Weller held the Office Of commissioner
there any claim set up by the surveyor be an
socate commissioner, TO have power to revise and
annul the official acts Of the commissioner by Withholding
his signature from the record Of them The records
shos that the surveyors did not participate in the deli
beratons Of the joint commission They performed none
Of the functions Of commissioners and gave upon
any controverted questions The commissioners alone
decided upon every question involving the exercise
Judgment and the surveyors the operative agents
and mark the line, ia conformity with the principles
established by the commissioners.
The surveyors did not attend the sessions Of the
commission, except when their presence required
give information to the commissioners to authenticate
the necessary records required by the treaty.
In confirmation Of this view Of the relative duties Of the
commissioner and surveyor, it is proper to remark that
the clause in the treaty Of Guadalupe Hdago which pro-
vdes Tor commission TO and mark the dividing line
between the two countries is literal transcript except
70 Names Of the convention for marking the boundary
between the United States and Texas concluded on the
10Th Of April 1889 The provisions Of that treaty
follows
Art l. Each q The contracting parties shall appoint
commissioner and surveyor Who shall before the tem-
nation Of twelve months from exchange Of the
Of this convention New Orleans ana proceed Ia run ana
mark that portion 81 the said boundary which extends from
the mouth of the Sabine where river enter the uf az
Mexico 70 the Red syer They shall make plans and
keep journals Of their proceedings aud the result agreed un
by them shall be considered part of this convention and
shal have the force NJ iii inserted therein
The Two GSernments will aneably agree respecting the
l A. Ia Nwa k.Na