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

inapplicable upon the hypothesis Of
fixed line boundary, for when once
the river had moved away from the
fixed line into the territory OF one or
other OF the two nations it was idle
and useless to provide for erosive or
other changes which might subsequent
ly occur in its bed. the river being. ex
hypothesi. wholly in the territory Of
one or other Of the nations on either
side Of the supposed fixed boundary
II any doubt could be entertained
as to the intention of the parties IN
making this convention it would dis
appear upon a consideration OF the uni
form and consistent manner in which
1t was subsequently declared by the
two governments to apply TO past as
we'll as to future changes in the river
Copious references were made by
the parties to the diplomatic CORE
spondenee which preceded this conven-
ton. but these communications. when
closely examined, are inconclusive and
add little or nothing to the language
of the treaty.
Equally inconclusive are the declara-
tions made after the signing Of the
convention by high officers Of state on
both sides. For example, senior Ro-
Nero. on the 18th of April. 1884. IS
reported to have said to the Mexican
treaty did not decide cases previous
to its date. because it could not have
retroactive effect. but could only be ap-
piled to such cases as might occur
subsequently, On the other hand, the
president of Mexico, in his message OF
April 1891, recommending the adop-
ton Of the convention of 1889. which
created the boundary commission TO
carry out the provisions of the conven-
- h. nT,r
as being for the establishment of an
international commission to study and
determine PENDING boundary questions,
or those which may arise by reason
Of the variation of the course OF the
river
It would be useless to multiply cita-
tions from diplomatic correspondents,
which Is not always consistent. and
which falls under the rule laid down
by The Hague tribunal in the recent
award in the north Atlantic coast
liar unguarded expressions contained i
in diplomatic CORES pondence the pre-
siding commissioner expressed the FOL !
lowing opinion, which seems applicable |
TO a great many of the communications
which have been relied upon by one |
or other Of the parties in the present |
case:
THE tribunal. unWlHlng 10 invest |
such expressions with an importance |
emitting them to affect the general |
question. considers that such conflict |
ing or inconsistent expressions as have
been exposed on either side are suffi-
GENTLY explained by their relations TO |
ephemeral phases Of controversy OF /
almost secular duration. and should be |
held to be without direct effect on the |
principal and present issues.
The same considera lions applied TO |
the correspo ndence with reference to |
a claim to Morteritos island, on which |
reliance was placed by |
Mexican counsel as showing the aban- 4
Comment by the United States of the |
view set forth IN attorney general /
Cushing's. opinion. and an acceptance !
of the fixed line theory. Without dis
cussing the details of this case 1t Is
sufficient to say that the decision ar
rived at was in no way based upon I
the fixed boundary theory, but was a
conclusion which was inevitable from
the application of the treaties Of 1S4S |
and 1853 It Is contended, however, |
that certain expressions used by Mr.. |
Secretary Frelin ghuysen in his CORE
spondence with the Mexican govern
ment. when he was resisting the Next
can claim, are inconsistent with the
idea of a fluvial boundary. and can
only be explained on the theory that
Mr.. Frelinghuysen believed in the ex-