El Paso herald. (El Paso, Tex.) 1901-1931, 1911-06-15


does not prevent him from profiting
by alluvion. The difficulty in this
case does not arise from the fact that
the territories in question are estab-
! lished by any measurement, but be-
cause the boundary is ordered to be run
and marked along the fluvia1 portion
as well as on the land, and on account
OF the further stipulation that no
change shall ever be made therein. Do
these provisions and expression, inso-
far as they refer to the f1uvia1 portion
of the boundary, convert it into an
artificial boundary which will persist,
Notwithstanding all changes IN the
course of the river? In one sense it
may be said that the adoption Of
fixed and invariable line, so far as
the river is concerned, would not be a
perpetual retaining of the river boun-
dairy provided for by the treaty. and
would be at variance with the agree
ment of the parties that the boundary
should forever run in the middle Of the
river. The direction as TO marking
the course of the river as 1t existed at
the time OF the treaty of 1913 is not
inconsistent with fluvial line varying
only in accordance with the general
rules OF international law, by erosion
on one bank and a1Iuvial deposits Oh
the other bank, for this marking OF
the boundary may serve the purpose
of preserving a record Of the old river
bed to serve as a boundary In cases
in which It cuts new channel.
Numerous treaties containing provis-
ions as to river boundaries have been
referred TO by the parties, showing
that in some cases conventional ar
ransements are made that the river
simpliciter shall be the boundary, or
that the boundary shall run along the
middle of the river or along the center
or thread OF the channel, while
a small number Of treaties con-
tain elaborate dispositions for
fixed line boundary. Notwithstanding
the alterations which may take place
in the river, with provision, however,
for periodical readjustments in certain
specified cases The difficulty with
these instances is that no cases appear
to have arisen upon the treaties n
question and their provisions throw
little. if any, light upon the present
controversy. I'm one case only among
those cited there appears to have been
a decision by the court OF cessation in
France Oalloz 1858. Part 1, page 4ol)
holding that when a river separates
two departments or two districts. the
boundary is fixed in an irrevocab,e
manner along the middle Of the bed or
the river as it existed at the time Of the
establishment Of the boundary, and
that it is not subject TO any subsequent
variation. Notwithstanding the changes
in the river. Whatever authority this
decision may have in the deIimItation
of departmental boundaries in France
it does not seem to be in accordance
with recognized principals of interna-
tionaI law If, as appears from the re-
pert, it holds that the mere designation
of a river as a boundary establishes
fixed and invariable line
The above observations as to the
treaty of 1913 would seem to apply to
the Gadsden treaty of 1853, taken by
itself. for it provides, in similar Ian
guage, that the boundary shall follow
the middle of the Rio Grande; that the
boundary line shall be established and
marked and that the dividing line shall
in all time be faithfully respected by
the tW 0 governments without any yaria-
ton therein.
While, however. the treaty OF IS4S
standing alone, or the treaty of 1853,
standing alone, might seem tosbe more
consistent with the idea of fixed
boundary than one which would vary
by reason OF alluvial processes, the
language of the treaty of 1853. taken
in conjunction with the existing cir
cumstances, renders il difficult to ac-
cept the idea of fixed and invariable
boundary. During the five years which
elapse betw the two treaties notable
variations of the course of the Rio
Grande took place, TO such an extent
that surveys made in the early part Of
1853, ct intervals of six months. re-
vealed discrepancies which are ac-
counted for only by reason of the
changes which the river had undergone
in the meantime. Notwithstanding the
existence of such changes the treaty
of 1853 reiterates the provision that the
boundary line runs up the middle or
the river, which could not have been
an accurate statement upon the fixed
line theory.
Some stress has been laid upon the
observations contained in the records
of the boundary commissioners that the
line they were fixing would be thence
forth inyariable, but apart from the
inconclusive character Of this CONVEX
sation it seems clear that in making
any remarks Of this nature the bound
airy commissioners were exceeding their
mandate and that their views as to
the proper construction of the treaties
under which they we're working couio
not in any way bind their respective
governments.
In November, 1856. the draft of tie
proposed report of the boundary COM
n1issioners for determining the bound
airy better between Mexico and the
United States under the treaty Of 1858.
was submitted by the secretary Of the
interior of the United States TO the
Hon Caleb Cushing for his opinion as
to whether the boundary line under
that treaty shifted with changes TAX
ing place in the bed Of the river. or
" neither the line remained constant
where the main course of the river ran
as represented by the maps accompany
ing the report Of the commissioners.
The opinion of Mr.. Cushing's is. val
liable contribution on the subject by
an authority on international iaw.
After considerations of the provisions
Of the treaty, and an examination of
great number of authorities on the sub
ject, Mr.. Cushing reported that the Rio
Grande retained its function of an in
ternational boundary Notwithstanding
changes brought about by accretion to
one bank and the degradation of the
other bank. but that, on the other hand,
if the river deserted its original bed
and forced for itself new channel In
another direction, then the nation
through whose territory the river thus
broke its way did not lose the land so
separated: the international boundary
III that case remaining in the middle of