The daily union., 1852-12-11


written convention 10 that effect was also drawn up
and signed by the commissioners and BY The survey
or The part OF Mexico, and by Lieut. A. w Whlppe.
the acting surveyor on the part OF NE United States ~
the date OF this convention. Mr.. A. b. Gray, who had
been appointed surveyor behalf OF the United otaes,
had not arrived III Pdso, and to AVOID the delay ana
which would from awaiting his ar
rival agreed by The two commissioners that Lieut.
Whipple who was The acung surveyor, should omciae
in his place When Mr. Gray joined the commissioners.
about tue 10Th Of July, 1851 he was requested by CON-
missioner Bartlett, of abundant caution, TO attach
his signature 10 the convention, so as To remove al pos
sble objection which might be raised TO the agreement
the ground that had not been anthenticaed IN exact
conformity with the words oil the treaty. Mr. Gray,
however, refused 10 sign be agreement, and tha act
was communicated this department by despatch from
the commissioner. AS foresaw thai any difficulty
which might arise this point would necessarily Affect
our relations with Mexico. felt il TO be my duty 70
bring the subject 10 The attention oil The late Secretary OF
Stale, (r Webser) and t. ask his advice as 70 wnat
course was proper Tor me to pursue, we examined ihe
opinion that The commissioners alone were empowered
decide upon all Disputes which might arise 10 regard 10
lie boundary, and that the surveyors were mere mnise-
rial agents carry elect the decisions oil the COM
mssioners, and authenticate them by their signatures.
We regarded the relative funcons OF the commissioners
and surveyors as bearing strong analogy % iae duties
ie OF court 10 make PARTITION OF tract Of land be-
tween two joint 1t is the province Of the COM
missioner decide where the dividing line shall run, and
Of the surveyor 10 run and mark II IN conformity win
! his decision,
The signatures Of both, however. are very properly
qned authenticate the report, and TO show that II cor
Iecty SETS forth the action OF both In conformity with
this OF the subject, the Secretary OF State advised
request Mr. Gray 10 sign The agreement fixing the
initial point and letter that effect accordingly ad-
dressed by me 10 Mr. Gray ON the 3lst day OF OCTOBER
1851.
AS the object of this letter 10 have been mlsun
dersood by many persous whose opinions are entitled to
respect deem the present suitable occasion to remove
all doubts on the subject In my judgment, neither the
Department OF the INTERIOR the Executive, nor Con.
i
the officers designated by the treaty OF Guadalupe Hda
90 to perform The duty OF ascerlainng and marking the
surface OF the earth the line between the two countries
These officers derive their authority from the treaty IT.
self ch,ch is e joint act of the tco contracting parties,
aud not from Their respective governments Their func
ons those OF arbalors, and their decision is in the
nature OF an award, which neither party can set aside
and accordingly by the terms OF the treaty i is expressly
stipulated thai the result agreed on By them shall be
deemed part OF this treaty, and shall have the same
4 force as ii il were inserted therein"
In view OF this clear and distinct provision, Tor the OBJ
OF which the national faith has been soemnly
pledged, the Department OF the Interior has not claimed
exercised any Igh, to interfere with the action OF the
commissioners Ii has expressed no official opinion as to
the ncoecness OF The point agreed upon
by the commissioners to The beginning point ou the
Rio Grande of the southern line OF New Mexico, and il
had been satisfied that their decision was clearly erro
neous, did not conceive that II was competent Tor me
10 alter modify in any particular what had been done
by them With the distinct declaration of the treaty be-
fore me, that the result agreed upon by them shall be
deemed part OF this treaty, and shall have The same
force If il inserted therein, would have been
But it has been conended that the letter 10 Mr. Gray
necessarily involves such pretension certainly had
no such purpose IN writing that letter on The contrary.
my object was clearly 10 intimate TO Mr. Gray that he
had neither coequa powers with the commissioners, nor
supervisory control their action, and that although
his signature might be necessary for The formal auhen
cation OF the convention between the two commission
was not essential TO is validity. IN like manner as
the signature OF the clerk OF the Supreme Court oil the
United States may be necessary 10 formal certificate o
judgment of the court to an inferior tribunal; and yet
the absence OF that signature does not anywse affect
the validity OF the judgment itself
The objection the action OF The department proceeds
upon the idea that the commission contemplated by The
treaty OF Guadalupe Hdalgo consisted OF four MEMBERS
vz two commissioners and two surveyors all possess
ing equal powers II such be the construction OF
the treaty, then | acknowledge have, in common with
the late Secretary OF State and his predecessor Mr.
Buchanan misunderstood its provisions.
II will be recolected that The treaty OF Guadalupe Hi
dago, which proclaimed the 4h day OF July, ls4s
negotiated and concluded under instructions issued
by Mr. Buchanan The commission 10 run and mark the
boundary line organized under his immediate super
vision, by the appointment OF Mr. Weller commission
| er and Mr. Gray surveyor. .trrh
That Mr.. Buchanan did not regard The surveyor as
possessing equal powers with the commissioner or az be-
ing an associate commissioner, IS obvious IRON he Tact
that all his instructions 10 the mode OF performing that
duty were addressed 10 the commissioner alone and not
TO the commissioner and surveyor jointly The language
of the instructions tends also strongly to repel such
presumption In his letter TO the commissioner, unocf
date Of February 10, ls49, he says:
AS you viii be held pouble r hs able and faithful
execution Of the important coHded by this
4
you the organ "a lon Of the commission"
| Again he says, in the same letter
in organizing the commission you referred, for any
information which you Hiay deem necessary, 10 Andrew u.
GRAY, ESQ, who has been appointed surveyor"
After the transfer of this from the State De-
partment 10 the Department oil the Interior my pedeees.
sor, Mr. Ewing, following the Interpretation which had
been given TO the treaty by the Department OF State direct
ell all his instructions the alone and not
10 the commissioner and surveyor jointly and have con-
timed 10 pursue the
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 TO be
cae commissioned TO have power to revise and annul
the official acts OF the commissioner by Withholding his
signature from the record OF them. The records show
that the surveyors did participate IN the deliberations
o the joint commission. They performed none OF the
functions OF commissioners, and gave votes upon any
controverted questions. The commissioners alone de-
oded upon every question involving he exercise OF judg
men and the surveyors the operative agents TO
established BY the commissioners.
The surveyors did even attend the sessions OF the
commission, except when their presence required
give information the commissioners authenticate
the necessary records as required by the treaty
In confirmation of this view OF the relative duties OF
the commissioner and surveyor. is proper TO remark
that the clause IN the treaty OF Guadalupe idago which
provides Tor commission 10 and mark the dividing
line between the two countries is literal transcript, ex-
cept TO names, of the convention for making the
boundary between the United States and Texas concu.
ded on The 25h Of April, 1888 The provisions Of that
treaty are as follow:
Art L. Each OF the contracting parties shall appoint
commissioned aud surveyor, who shal meet before the