The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-12-13

republics and no cnange snail ever De mace theTe
In, except by the express and free consent of both
nations. lawfully given by the General Govern
ment Of each, in conformity with its own conati-
tuition"
In pursuance of these stipulations, after having
completed the survey of the line from the Pacific
coast to the junction Of the ella and the dorado
rivers, the joint commission reasseinoled at II
Paso in December, 1850
So for as this Department is advised, the south
ern boundary Of New Mexico was, at the date OF
the treaty of Guadalupe Hidalgo, mere magma
ry geographical line, which had never been sur
veyed or marked under the authority OF the Mexi-
government. The point where this line strikes
the Rio Grande had never been designated with
precision and il could therefore be ascertalned
on ~ by determining it's relative position to other
points which were known and determined. Much
controversy arose on this subject, and serious ap
prehensions at one time entertained whether
| the Commissioners could come TO any satisfactory
! agreement.
| Finally, however, they agreed that it should be
| established in latitude N. 32o 90, and on the oath
of April, 1851, the Commissioners, and other per
sons attached TO the commission, assembled on the
| round, and it was publicly proclaimed that that
should be the initial point OF boundary on the Rio
Grande, and q monument was erected to mark the
| spot
A written convention TO that effect was also
| drawn up and signed by the two Commissioner
and by the surveyor on the part Of Mexico, and by
Lieut.. A. w. Whipple. the acting surveyor on the
part Of the United States. At the date OF this
convention, Mr.. A. b. Gray, who had been ap-
pointed surveyor on behalf Of the United States
had not arrived at FL Paso, and to avoid the delay
and Inconvenience which would ensue from await
ing his arrival, it Was agreed by the two Commits
sioners that Lieut.. Whipple, who was the ac ting
surveyor, should otticiate in his place. When Mr.
Gray joined the Commissioners, about the 18th Of
| July, 1851, he was requested by Commissioned
Bartlett, out of abundant caution, to attach his
| signature to the convention, so as to remove al
possible objection W hich might be raised as to the
| agreement, on the ground that it had not been
| her ttnn tod NIT
| of the treaty. Mr.. Gray, however, refused &c
| sign the agreement, and that fact was commu
| nicated to this Department by a despatch from
! the Commissioner. AS ] foresaw that any difh
Guilty which might arise this point would neces-
sarily affect relations with Mexico felt it &c
be my duty to bring the subject to the attention Of
the late Secretary Of State, (Mr Webster,) and &c
ask his advice to What course il was proper for
me to pursue. We examined the provisions OF the
| treaty together, and coIcurred in the opinion tina
the Commissioners alone were empowered to de
eide upon all disputes which might arise in regard
10 the boundary; and that the surveyors were mere
ministerial gents to carry into effect the decisions
of the Commissioners, and to authenticate them by
! their signatures. We regarded the relative func-
tons Of the Commissioners and surveyors as bear
ing a strong analogy to the duties of a commits
sioner and surveyor appointed under order Of
court, to make partition of tract Of land between
| two joint owners. 1t is the province OF the Com
missioner to decide where the dividing line shall
rum and of the surveyor to and mark 1t in con
formi.y with his decision.
The signatures Of both, however, are very pro
perIy required to authenticate the report, and tc
show that it correctly sets forth the action OF both
In conformity with this view Of the subject. the
Secretary Of State advised me to request MIR Gray
to sign the agreement fixing the initial point and
n letter to that effect was accordingly addressed
by me to MIR. Gray on the 3lst day OF October
1851.
| As the object of this letter seems to have been
misunderstood by many persons whose opinion;
are entitled prospect, deem the present suitable
occasion TO remove all doubts on the subject. In
my judgment, neither the Department OF the In
terror nor the Executive, nor Congress have any
power to regulate control the action of the Off
cers desi grated by the treaty of Guadalupe Hidal
go TO perform the duty Of ascertaining and mark
ing the surface of the earth the line between the
two countries.
These officers derive their authority from tn.
treaty Itself irhch is the joint act Of the tDo con
tracing pdrties and not from their respective GO
| vernments Their functions are those of arbtra
tors, and their decision ia in the nature OF an
award, which neither party can set aside; and &C
cordingly by the terms of thetreaty II ID expressly
stipulated that "the result agreed on by them shall
be deemed part of this treaty. and shall have the
| same force as lift were inserted therein"
In view of this clear and distinct provision, for
the observance of which the national faith haH
been solemnly pledged, the Department Of the In
terror has not claimed exercised any right to
interfere with the action Of the commissioners 1t
has expressed official opinion to the correct
ness or incorrectness of the point agreed upon by
the commissioners as to the beginning point on the
Rio Grande of the southern line of New Mexico,
and if had been satisfied that their decision was
clearly erroneous, l did not conceive that il was
competent for me to alter modify in any partiC
ular what had been done by them With the dis
tinct declaration OF the treaty before me- that "the
| result agreed upon by them shall be deemed part
of this treaty, and shall have the same force il
il were inserted therein,' il would have been
strange if had asserted any such right.
But it has been contended that the letter to Mr.
Gray necessarily involves such pretenson
certainly had no such purpose in writing that
letter; On the contrary, my object was clearly to
intimate to Mr.. Gray that he had neither coequal
powers with the commissioners, nor supervisory
control over their action and that, although bis
signature might be necessary for the formal
authe ntication Of the convention between the two
commissioners, il not essential to its validity
in like manner the signature of the Clerk of the
Supreme Court of the United States may be neces
sary to formal certificate of a judgment of the
court to an inferior tribunal; and yet the absence
of that signature docs not in anywise affect the
validity of the judg ment itself.
The objection TO the action of the Department
proceeds upon the idea that the commission con-
templated by the treaty OF Guadalupe Hidalgo
consisted OF four members, viz: two commissioners
and two surveyors, all possessing equal powers.
IL such be the true construction of the treaty then
acknowledge ! have, in common with the late
Secretary of State and his predecessor. (Mr.
Buchanan,) misundersto ID its provisions.
Ii will be recoected that the treaty of Guada-
lupe Hidalgo, which was proclaimed on the 4th
under instructions issued by Mr.. Buchanan. The
commission to and mark the boundary line
organized under his immediate supervision,
ny the appointment of Mr.. Weller commissioner
and Mr.. Gray as surveyor.
That Mr.. Buchanan did not regard the surveyor
pose sing equal powers with the commissioner,
being associate commissioner il obvio
from the fact that all his instructions to the
mode Of performing that duty were addressed to
the commissioner alone, and not to the commits
sioner and surveyor jointly The language of the
Instructions tends also strongly to repel such a
presumption. In his letter to the commissioner,
under date of February ID, lS49, he says:
GAS you will be held responsible for the able
and faithful execution of the important trust con-
fded to you by this article Of the treaty, the Presi
dent deems it proper to leave to you the organiEa-
lion of the commission"
Again he says, in the came letter.
ain organizing the commission, you E.
fcrred for any information which you may deem
necessary to Andrew b. Gray, esq, who has
been appointed surveyor"
After the transfer of this service from tho State
Department TO the Department of the Interior,
my predecessor, MIR. Ewing. following the inter
probation which had been given to the treaty by
the Depa rtment Of State, directed all his ipstruc-
tiOns to the commissioner alone, and not to the
commissioner and surveyor jointly; and l have
continued TO pursue the snue course.
The records OF the Department contain nothing