borne out by the records of the Department of Justice published in the Appendix to the Case of the United States."

The records at the Department of Justice certainly fail to show affirmatively that the minutes of the boundary commission were before Mr. Cushing, although the opinion was rendered less than five months after the joint journal of June 25th, 1856 and while Major Emory and Señor Salazar were still in Washington and the International Boundary Commission was still holding sessions. That they are not affirmatively shown to have been before him and that in any event they are not referred to by him, so far from discrediting his opinion, is most persuasive that the minutes in question were and are unimportant and irrelevant."

It is submitted that Attorney General Cushing's opinion stands unshaken as the law in this case.

THE CONSTRUCTION PLACED UPON THE TREATIES OF 1848 AND 1853 BY THE Two GovERNMENTS IN DIPLOMATIC CORRESPOND

ENCE.

The Case of the United States makes the following statements which, it is believed, are fully sustained by the record:

"It is maintained that the views set forth by Attorney General Cushing in his opinion, above referred to, rendered within three years of the date of the signature of the treaty of 1853, have been consistently adhered to by the United States from that day to this."c

"It is submitted with deference that the record of the diplomatic correspondence shows that during the earlier portion of the period from 1853 to 1884, the Government of Mexico apparently shared the views of the United States." d

While no record has been found in the Department of State showing that Attorney General Cushing's opinion was transmitted to the Government of Mexico the circumstances under which it

a Mexican Countercase, p. 38.

See also Mexican Case pp. 39 and 40.

The Mexican Case (p. 38, 42) is also in error in its statement that the Joint Journal of the International Boundary Commission of June 25, 1856 was the "proposed report of the Commissioners' which formed the subject of Attorney General Cushing's opinion. (See Mr. Fowler to Mr. Knox, U. S. Case Appendix p. 1128 at 1129.) (See Mexican Countercase pp. 38, 40.)

c Case of the U. S. p. 36.

d Case of the U. S. pp. 36 and 37.

was rendered, namely, with reference to a proposed report of the Commissioners Emory and Salazar, then sitting in Washington, seem to render it reasonable to suppose that a copy of the opinion was furnished Señor Salazar and probably was transmitted by him to the archives of the Mexican Government. Be that as it may, an occasion very soon arose which brought about the formal communication of Attorney General Cushing's opinion by the United States Government to the Government of Mexico.

THE SEWARD-ROMERO CORRESPONDENCE OF 1867.

Under date of January 9, 1867, Señor Romero, for many years Mexican Minister at Washington, wrote a note to the Department of State communicating a copy of the instructions which he had received from the Mexican Minister of Foreign Affairs, together with a letter of the Governor of Chihuahua to the Minister of Foreign Affairs, which in turn incorporates a communication from the Jefe Politico and Military Commander of the District of Brazos to the Governor of Chihuahua. This correspondence all related to the encroachments of the Rio Grande upon Mexican territory between El Paso and Juarez; in other words, the correspondence related to the formation of the Chamizal Tract. A detailed discussion of this correspondence, which is printed in full in the Appendix to the Case of the United States," will be reserved for the oral argument.

It is submitted that while the Jefe Politico of the District of the Brazos, a subordinate officer, in a communication to his superior, the Governor of Chihuahua, does use some language which might be interpreted as asserting the fixed boundary theory as now set up by the Mexican Government, the instructions of the Mexican Minister of Foreign Affairs to Minister Romero show that this theory was not adopted by the Mexican Foreign Office. On the contrary the instructions of the Secretary of Foreign Affairs to Señor Romero appear to assume the ordinary doctrine of avulsion and accretion. That this was Señor Romero's understanding of his instructions is shown by the cordial way in which he acknowledged Mr. Seward's reply, which had transmitted Attorney General Cushing's opinion as setting forth the views of the Government of the United States. Señor Romero's note shows clearly that he was under the impression that the Mexican contention rested on an avulsive change at El

a U. S. Case Appendix p. 562–567.

b U. S. Case Appendix p. 555

Paso similar to the change lower down at the Island of San Elizario and he welcomes Attorney General Cushing's opinion as a correct exposition of the principles which should be applied equally to both cases. Señor Romero says in part:"

"I have read that opinion with interest, and it has appeared to me that the principles enunciated therein are equitable and founded on the teachings of the most accredited expositors of international law. On this date I transmit to my government a copy thereof, and of your note which accompanies it.

"In the opinion spoken of, the proper distinction is taken between the case of change of the stream of a river which serves as boundary between two states, whether gradual or by alluvion, without change in its general direction, and that in which such change occasioned by the force of the river be sudden and complete, and cause a change of current. In the first case it is considered that the actual reach of the river continues to form the divisional line, and that the land gained or lost on each bank is acquired or lost by the state to which the bank belongs which undergoes such changes; and in the second case, that the divisional line cannot follow the new stream, but continues along the abandoned one which the river followed before the violent mutation.

"It pertains to the government of Mexico to express its conformity to or dissent from these principles. Until I receive its instructions on this point, which I will duly communicate to you, I hesitate not to adopt them, meanwhile, as reasonable and equitable."

Señor Romero transmitted Attorney General Cushing's opinion and his own reply to Secretary Seward to the Mexican Minister of Foreign Affairs. The Mexican Foreign Office was therefore advised not only that Señor Romero had expressed his acquiescence in Cushing's opinion but that he had requested that the opinion be sent to the United States authorities on the Rio Grande for their guidance in the future. Under these circumstances it is hardly conceivable that the Mexican Foreign Office should have failed to make known its dissent from Attorney General Cushing's opinion if that opinion did not meet the approval of the Mexican Government.

It is submitted that the Romero-Seward correspondence of 1867 shows that Attorney General Cushing's opinion was at that time asserted by the United States to be the correct interpretation of the boundary treaties with the acquiescence of the Government of Mexico.

a Señor Romero to Mr. Seward February 6, 1867, U. S. Case Appendix p. 565 at 566.

THE PALACIO-FISH CORRESPONDENCE OF 1871-1872. No record has been found of any continuation of the correspondence of 1867, but a note of Señor Palacio, the Mexican Chargé d'Affaires at Washington, dated August 11, 1871, dealing with the construction of certain dikes near Brownsville, gave occasion for a further expression of the views of the Mexican Government, entirely in accord with Attorney General Cushing's interpretation of the boundary treaties.

After pointing out the threatened inundation of Mexican territory as a result of the construction of dikes upon the American side near Brownsville Señor Palacio continues: "

a

"This, however, is not the greatest damage which a change in the course of the river may produce; it may alter the dividing line between the territory of Mexico and that of the United States which has been established in conformity to treaties. The invasion of the Mexican territory by the waters of the river, proceeding from the cause set forth, has been slowly and gradually increasing from day to day; and under these circumstances when any portion of the ground which now is on the right bank passes to the left, the Government of the United States might claim with apparent reason that said ground had become its property. It might be replied with truth that the change was not the effect of natural causes, but obtained artificially and without right; but there is no doubt that it might stir up a question necessarily disagreeable. If such a result can now be avoided, it seems most appropriate to adopt measures for doing so, and that is the object of the present note."

It will be observed that in this passage Señor Palacio clearly assumes that a slow and gradual change in the course of the river wrought by natural causes would alter the boundary line. After further exchanges between the Department of State and Señor Palacio the correspondence was closed by Secretary Fish's note of March 2, 1872, and Señor Palacio's response of March 11, 1872. Secretary Fish, by way of answer to Señor Palacio's complaint, transmitted a copy of a report from the United States Consul at Matamoros in v hich the Consul reviews the correspondence of 1867, pointing out Señor Romero's acceptance of Cushing's opinion. In Señor Palacio's note of acknowledgment he says. that he has "thought proper to give an account of your [Mr. Fish's] note aforesaid, and of its enclosure to the Government of

a U. S. Case Appendix pp. 569-570.

Mexico, to the end that, in view of the statements made in the latter, it may give me orders as to what I am to do in the matter. No further correspondence in regard to this matter has been found. For the second time the question of the effect of changes in the course of the Rio Grande had been mooted between the two governments; for the second time the United States had specifically brought Attorney General Cushing's opinion to the attention of the Mexican Legation; for the second time the views expressed by the Legation were entirely in harmony with Cushing's opinion; and for the second time the Mexican Legation had reported the entire correspondence to the Mexican Foreign Office without eliciting any expression of dissent from the Government of Mexico. Twenty-five years had passed since the signature of the Treaty of 1848 and twenty years had passed since the signature of the Treaty of 1853 and Attorney General Cushing's opinion still stood unchallenged as a correct interpretation of the boundary treaties. Under these circumstances it is submitted that the statement in the Case of the United States to the effect that "the record of the diplomatic correspondence shows that during the earlier portion of the period from 1853 to 1884 the Government of Mexico apparently shared the views of the United States" with respect to the proper interpretation of the boundary treaties is amply sustained.

THE CORRESPONDENCE BETWEEN VARIOUS OFFICIALS OF THE MEXICAN GOVERNMENT PRINTED IN THE APPENDIX TO THE MEXICAN CASE, ANNEX NO. IO.

It was pointed out in the Countercase of the United States that the correspondence relied on by the Mexican Government to show the presentation of a claim on account of the Chamizal Tract to the Government of the United States in 1874 consisted entirely of internal correspondence between various Mexican officials which could only acquire significance as regards the United States "through communication, either textually or in substance, to the Department of State through the accredited Mexican representative at Washington." It was furthermore stated that a careful examination of the pertinent files of the Department of State had failed to show any communication from the Mexican Legation

a Señor Palacio to Mr. Fish, March 11, 1872, U. S. Case Appendix p. 577.
b See supra p. 38.

See Case of the United States pp. 36 and 37.

c U. S. Countercase p. 26.