As has been stated in the United States Countercase, pages 11 to 14, inclusive, the El Chamizal case was submitted to the Boundary Commission by Señor Mariscal under articles 1 and 4 of the conventions of 1884 and 1889.

U. S. Countercase, pp. 11 to 14.

U. S. Case App., p. 106.

Another very important case was submitted to the Boundary Commission under the provisions of the treaties of 1884 and 1889, which shows, perhaps better than any other case, the application of the principles of erosion and evulsion, and shows conclusively that the Government of Mexico did not rely upon the theory that the 1852 boundary was a fixed line, or that the treaty of 1884 was not intended to apply to any case where the changes in the banks of the channel of the river occurred prior to 1884. The case referred to is that of the island of San Elizario. It was presented by the Mexican commissioner November 4, 1895. (U. S. Case App., p. 104.)

The case is stated at length in United States Countercase (pp. 15 to 20), inclusive, to which reference is made for a more extensive consideration of the case. The map on page 109 of the proceedings of the International Boundary Commission shows the location of the channel as marked by Salazar, 1852; another as marked by Emory, 1852; and the third one, marked "old river channel abandoned in 1858." These channels, while all lying within a narrow compass, have substantially nothing in common except their points of intersection. The commissioners examined the case and found that the changes up to 1858 had occurred through erosion and deposit of alluvium, the change in 1858 by avulsion. The commissioners therefore, following the rules laid down in the treaty of 1884, relocated the old boundary line in the "old river channel abandoned in 1858." This decision of the commissioners, not being disapproved by either Government, became final and conclusive.

Report Int. Bound. Com., pp. 101 to 116, incl.
Treaty 1889, art. 8, U. S. Case App., p. 75.

In 1898 Señor Blanco, the Mexican commissioner, presented to the American commissioner a claim concerning the nationality of a certain extension of land separated by the Rio Grande from the Mexican side to the American side known as Real de San Lorenzo, and situated three or four miles below the city of El Paso.

The land had formed, as shown by the report of the engi

neers of the joint commission, progressively over a period of 50 years by the process of accretion, followed by an avulsive cut-off in the year 1898. The land embraced an area of some 400 acres The engineers reported that in their opinion it was, without question, a banco formed by avulsive action. (U. S. Countercase App., p. 106.)

The matter being deemed a banco, the consideration of the manner of the formation of the land was deferred until such time as the banco treaty might be signed and ratifications exchanged. After the exchange of ratifications on November 18, 1907, the Mexican commissioner, Señor Puga, in a letter addressed to Gen. Mills, the American commissioner, recited the facts of the former presentation of the case and requested that it be now given consideration. In this letter and in all of the proceedings which followed it before the joint commission, including the taking of the testimony of several witnesses and the reference to and the report by the respective engineers of the commission, not a single reference is made to the theory that the boundary line as established by the treaty of 1848 and designated on the maps by the commissioners in 1852 was a fixed and invariable line; nor was it anywhere claimed during the course of the proceedings that the treaties of 1884 and 1889 were inapplicable to a case like this, where the accretions had been forming for a period of 25 years prior to the signing of the treaty of 1884. (U. S. Countercase App., pp. 89-122, incl.)

The frequency of change of the river bed is well illustrated in the case of the banco of San Lorenzo, by the fact that five distinct maps made in the years 1852, 1889, 1899, another in 1899, and 1907, show different locations of the river bed. (U. S. Countercase App., p. 117. Portfolio Map No. 9.)

The decision in the case of the Banco San Lorenzo, as well as other pending banco decisions, is being withheld by the International Boundary Commission at the request of the Government of Mexico. (See U. S. Case App., pp. 373, 380, 383, 385, 427, 428, 440, 444, 445.)

Between the banco de San Lorenzo and El Paso there is another extension of land which is known as the Bosque de Cordova. It was given the banco form by an artificial cut-off made by the consent of the two Governments in 1900. (U. S. Countercase App., p. 64.)

The island so formed was marked by monuments by the boundary commission for the purpose of identifying the river bed as it ran at the time of the cut-off. (U. S. Countercase App., p. 69.)

The area of the tract is about 370 acres, of which 237 acres has formed by accretion to the Mexican bank since the survey of 1852. The area of the tract has varied from time to time, as will be seen by reference to map made by Consulting Engineer W. W. Follett. (U. S. Countercase Portfolio Map No. 9.)

It may be well to remark in passing that, on the theory of the present Mexican position, this land north of the survey of 1852 would still belong to the United States territory.

In placing the monuments around the Bosque de Cordova, the Mexican Commissioner assented to their being placed in the center of the channel of the river as it ran in 1899 and in a letter of Señor Puga to Señor Mariscal, Secretary of Foreign Relations, under date of March 14, 1907, it is suggested that monuments be placed in addition to those which were already fixed in order to more clearly define the old line "inasmuch as the dry channel is becoming more obliterated as time goes on." In the letter referred to, Señor Puga states as follows:

According to the treaties in force, the boundary line between Mexico and the United States should be the center of said channel and it is also this very line which divides the estates situated in the two countries and belonging in part to the said persons.

If this statement is correct it would entirely conform to the attitude of the United States in the present case and would effectively set at naught the contentions of a fixed boundary line, and also that the claim that the rules established by the treaty of 1884 were not retroactive. (U. S. Countercase App., p. 75.)

In the Countercase of Mexico it is asserted that the reference by the Secretary of Foreign Relations, Señor Mariscal, of the El Chamizal case, to the Mexican Boundary Commissioner was merely a formal act in forwarding the petition of Pedro I. Garcia. That the act of Mariscal was not merely formal but decisive and personal is shown by his letter dated October 29, 1894. In that letter he states that the fiscal attorney of the district court of Paso del Norte had instituted two investigations with the view of ascertaining the changes that had occurred in the current of the river from the New Mexico line to a point 2 leagues to the east of said city, and covering the period from February 2, 1848, to September 4, 1894. The cases were sent with instructions to investigate and arrive at a decision, as called for by the treaty.

The letter is important as showing that Señor Mariscal did not regard the boundary of 1852 as a fixed line, and also that he viewed all the changes in the river both before and after the Convention of 1884 as necessary to a decision of the case. (U. S. Case

App., p. 106.)

It is worthy of comment that in a letter by Señor Don Igno Mariscal, Secretary of Foreign Affairs for Mexico, dated May 1, 1899, addressed to Chargé d'Affaires, American Embassy, Señor Mariscal states concisely his understanding of the doctrine which applies to the Rio Grande as a fluvial boundary and approves the elimination of the bancos by a new treaty outside of that doctrine, as follows:

I have laid your communications, and all matter relating to the case, before the President of the Republic, and by his direction I have the honor to inform you that Mexico, like the United States, is decidedly in favor of the elimination of the bancos, judging it to be the only way to avoid questions of sovereignty and jurisdiction. Under the old and accepted system which we have applied to the Bravo, that of using rivers to define the frontier boundary, it must be accepted as an invariable basis that one bank belongs to one country and the bank opposite to the other. The actual boundary, where the bancos are situated, interferes with the application of this basis, and therefore nothing is better than to eliminate, granting that it is not only possible but easy, the elements which interfere with it.

The references made by the Agent of the United Mexican States to the constitution and laws of Mexico and of the United States of America and to many decisions of courts and to other authorities for the purpose of showing that the treaty or convention of November 12, 1884, could not be retroactive, are not, we submit, of much practical value in reaching a conclusion upon that point. The general principles of law thus enunciated, whether sound or not, have no application to a treaty of interpretation laying down rules for the construction of the meaning of the language of a prior treaty. Such a treaty of interpretation is nothing more than a declaration by the two nations of the laws or rules applicable to the former treaty, and the latter treaty becomes in effect a part of the former one.

THE BOUNDARY TREATY OF 1884, AS INTERPRETED BY THE BANCO TREATY OF 1905.

The learned Agent of Mexico has been at much pains to show that the international title to "El Chamizal" should not be resolved "solely in accordance with the principles established in the Convention of the 12th of November, 1884." (See Mexican Case, pp. 17 to 30.) He even goes further and seeks to exclude the Convention of 1884 from any part in the settlement of this cause, saying that "it must be concluded that the precepts of the Washington Convention dated 12th of November, 1884, neither are nor can be applicable to the El Chamizal case, and that therein may not be found the principles on which the legal decision of the said case should be based." (See Mexican Case, p. 17.) To this end he invokes the doctrine that treaties, being laws, "can not have retroactive effect." (See Mexican Case, p. 25.) To this it would seem to be sufficient to answer that the Preamble of the Convention for the Arbitration of the Chamizal Case expressly declares the desire of both Nations to terminate the dispute "in accordance with the various treaties and conventions now existing between the two countries, and in accordance with the principles of international law." (See U. S. Case App., p. 3.) Because it is admitted that this tribunal is not precluded from the consideration of all the treaties and conventions subsisting between the two Governments, shall it be concluded that that treaty shall be disregarded which was the latest between the Nations and in furtherance of which the International Boundary Commission had been created and in conformity to which this identical case had once proceeded to trial?

The learned Agent for Mexico does not need to be reminded that the rule against retroactivity of laws does not apply to Statutes of Construction or Interpretation. That the Treaty of 1884 was such a law appears most forcibly in the language of the illustrious President of Mexico to the Mexican Congress in 1885, to wit: "I equally urge the approval of the treaty made in Washington ** * establishing certain rules of interpretation of the first article of the boundary treaty of December 30, 1853" (see U. S. Case App., p. 1137), as well as from the explicit language of Secretary Frelinghuysen to the Chairman of the Committee of Foreign Relations of the United States Senate, to wit: "The present convention, then, provides for no new boundary line, but only for