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

dictioni of the country to which thew
previously belonged. IN no case how
ever, shall this retained jurisdictional
right affect or control the right of
navigation common to the two coun-
tries under the stipulations OF article
of the aforesaid treaty of Guadalupe
Hidalgo; and such common right shall
continue without prejudice throughout
the actually nayigabIe main channels
of the said rivers, from the mouth of
the Rio Grande to the point where the
Rio Colorado ceases to be the inter-
national boundary, even though any
part of the channel of said rivers,
through the changes herein provided
against, may be comprised within the
territory of one of the two nations
The preamble OF this convention
states that 1t refers to those parts of
the boundary line between the two
countries which follow the bed of the
Rio Grande and the FRO Colorado and
proceeds to explain that the portions
of the dividing line between the two
countries which follows the middle of
the channel of the flo Grande and
the Rio Colorado are those mentioned
in the treaties of 1913 and 1853 The
convention thus seems to have been
, designed to apply to the whole of the
Rio Grande Insofar as the treaties of
1S4S and 1853 constitute this river as
the dividing line between the two coun-
tries. The first article provides that
the dividing line shall forever be that
described in the aforesaid treaty, and
follow the center Of che normal chan
mel of the rivers named, etc. This ap-
pears to be a clear recognition of the
fact that the line which is. according
to the agreement of the parties. to be
henceforth their boundary line. is also
that which was created by the former
treaties. It is. to that extent, a decla-
ratory article importing into the
treaties of 1913 and 1853 the construc-
ton which the parties had determined
to adopt, as the preamble states, In
order Ito avoid difficulties which may
arise through the changes of channel
to which those rivers are subject
through the operation of natural
forces" and ito lay down rules for
the determination of such questions"
On behalf of Mexico it has been
strenuously contended that this con-
yention was intended to operate in
the future only, and t.iat 1T should mott
be given a retroactive effect so as to
apply to any changes which had pre-
viously occurred. Reference was made
to a. number of weil-known authorities
establishing the proposition that laws
and treaties are not usually deemed |
to be retrospective in their effect.
this rule is that of laws or treaties |
which are intended to be declaratory, |
and which evidence the Intention of |
putting an end TO controversies |
by adopting a rule of construc-
ton applicable to laws or con- /
ventions which have been subject /
to dispute. The internal evidence con-
tanned in the convention of 1884 ap-
pears to be sufficient to show an in
he lot
for the determination of difficulties |
which might arise through the changes |
in the Rio Grande, whether those
changes had occurred prior to or after
the convention, and they appear to
have been intended to codify the rules
for the Interpretation of the previous |
treaties of 1913 and 1853, which had
formed the subject of diplomatic cor
respondence between the parties
While it is perfectly true that the
convention was to be applied to dis
putes which might arise in future it
nowhere restricts those difficulties to
future changes in the river. 1t ex-
pressly declares that by the treaties of
1S4S and 1863 the dividing line had
followed the middle of the river. and
that henceforth the same rule was to
apply.
Interpreting 1854 Treaty.
At the time this Convention was |
signed all the great changes in the
course of the Rio Grande had occurred,
and practically the whole ChamizaI
tract had been formed. 1t appears, in
fact, that the river of 1852 and the
river Of 1884 had no points in common,
except points of intersection. 1t is
quite true that the parties may not
have been aware of the entire separa-
ton of the old river bed from the new,
from FL Paso down to the gulf of Mex
leo, but the fact remains that all the
great and visible changes which are
to have taken place during
the floods extending from 1864 TO 1863
had done their work, and. in the case
Of the Chamizal tract, the changes
had been so considerable in the upper
portion of the river. which is proved !
to have been less liable to modifica-
tons owing to the nature of the soil.
than the lower part OF the river that
1t formed the subject Of much dIplo-
matte correspondence.
Having regard to the existence of
such notable changes in the river bed
it is obvious that the convention OF