ARTICLE IV.

The citizens of either of the two contracting countries who, by virtue of the stipulations of this convention, shall in future be located on the land of the other may remain thereon or remove at any time to whatever place may suit them, and either keep the property, which they possess in said territory or dispose of it. Those who prefer to remain on the eliminated bancos may either preserve the title and rights of citizenship of the country to which the said bancos formerly belonged, or acquire the nationality of the country to which they will belong in the future.

Property of all kinds situated on the said bancos shall be inviolably respected, and its present owners, their heirs, and those who may subsequently acquire the property legally, shall enjoy as complete security with respect thereto as if it belonged to citizens of the country where it is situated.

ARTICLE V.

This convention shall be ratified by the two high contracting parties. in accordance with their respective Constitutions, and the ratifications shall be exchanged at Washington as soon as possible.

In witness whereof, we, the undersigned, by virtue of our respective powers, have signed the present convention, both in the English and Spanish languages, and have thereunto affixed our seals.

Done in duplicate, at the City of Washington, this 20th day of March, one thousand nine hundred and five.

The Plenipotentiaries of the United States and Mexico who, on March 20, 1905, signed the treaty for the elimination of bancos in the Rio Grande, having omitted involuntarily to sign the maps mentioned in Article I thereof and which form a part of the said instrument, the undersigned Plenipotentiaries have met together this day and signed the above mentioned maps in conformity with the authority conferred upon them by their respective Governments.

In witness whereof they have signed the present Protocol of Signature and have affixed their seals thereto.

Done at Washington this fourteenth day of November one thousand nine hundred and five.

[SEAL.] [SEAL.]

ALVEY A. ADEE
JOSE F. GODOY.

From the foregoing only one conclusion can be drawn: that both Mexico and the United States understood that the Treaty of 1884 applied to all these cases; those formed before the date of the treaty as well as those formed afterwards, and the banco treaty states that

Whereas, as a result of the topographical labors of the Boundary Commission created by the Convention of March 1, 1889, it has been observed that there is a typical class of changes effected in the bed of the Rio Grande, in which, owing to the slow and gradual erosion, coupled with avulsion, said river abandons its old channel and there are separated

No.

Name.

from it small portions of land known as "Bancos" bounded by the said old bed, and which, according to the terms of Article II of the aforementioned Convention of 1884, remain subject to the dominion and jurisdiction of the country from which they have been separated:

And further, in Article I of the treaty it is stated that the bancos shown on the maps and mentioned in the proceedings of the Commission "are hereby eliminated from the effects of Article II of the Treaty of November 12, 1884."

Of course it goes without saying, especially in the case of the bancos formed prior to 1884, that unless it was considered that the Treaty of 1884 applied it would have been unnecessary to have eliminated them from the provisions of that treaty.

Of the 58 bancos eliminated under the Treaty of 1905, the following, thirty-six, were formed prior to 1884, as indicated by the following table: List of bancos formed prior to 1884, and eliminated by treaty of 1905.

Report of consulting engineers on survey of 1897-98, giving tabular statements of bancos, pages 192-204, Proceedings of International Boundary Commission.

Hectares.

ComInternational Date of cutoff given in Engineer's Report, Proceedings

JO

Boundary mission.

Page. Date.

Report of consulting engineers on survey of 1908-9 on pages 1726, Elimination of Bancos Report, first series, Nos. 1 to 58.

The thirty-six bancos above described, formed prior to 1884, together with twenty-two formed subsequent to that date, were the inspiration of the Treaty of 1905. The maps thereof and the detailed Report of the Consulting Engineers setting forth the origin and history of the bancos were before the plenipotentiaries when they negotiated and signed the Treaty. The map of each banco was signed by them. It is respectfully submitted that the elimination of each of the thirty-six bancos formed prior to 1884 was a several adjudication that the Convention of 1884 was retroactive.

Nor, finally, has the attitude of the International Boundary Commission in applying the interpretation of the Banco Treaty of 1905 to the Boundary Treaty of 1884, undergone any change since the elimination of the original fifty-eight bancos, nor even since the presentation by Mexico of the "fixed line" theory in January, 1910.

Thus we find in the Joint Journal of May 14, 1910 that "the Commission took for consideration the joint report of the Consulting Engineers of May 4, 1910, with maps covering the work of the survey of twenty-two bancos on the lower Rio Grande, twentyone of which were formed subsequent to the survey of 1897-8 and one (Tortuga) previous to that date." a

In the accompanying Report of the Consulting Engineers is set forth at length the history and topography of the Tortuga Banco in which it is succinctly stated that this banco was cut off “somewhere about 1860." b

This action of the Commission received the formal approval of the two Governments."

Can it be seriously contended that during the long course of diplomatic correspondence from the recommendation contained in the Joint Journal of January 15, 1895, and even up to the action of the two Governments concerning the Tortuga Banco in May, 1910, that the Mexican authorities were not aware of the retroactive construction which they were thus solemnly placing upon the Treaty of 1884.

The distinguished learning and ability of Mexico's representatives, as well as the diligence with which they have at all times defended the interests of their country, precludes even for a moment such a conclusion.

a U. S. Case App., p. 1112.

b U. S. Case App., p. 1121.

ACCRETION AND AVULSION.

THE LAND IN DISPUTE WAS FORMED BY ACCRETION AND BELONGS TO THE UNITED STATES TERRITORY.

The Case and Countercase of Mexico appear to base Mexico's claim to the territory solely on the ground that the line of the middle of the channel of the Rio Grande as that line ran in 1852 was a fixed and invariable boundary line between the two countries. Since, however, the Government of Mexico has not expressly and categorically abandoned the contention upon which it based its claim to the Chamizal tract" at the former trial, namely, the contention that the tract was formed by avulsion, and since, moreover, within the last few days a Mexican engineer, under the instructions of the Mexican boundary commissioner and by arrangement with the boundary commissioner on behalf of the United States, has been engaged in sinking a series of transverse pits across the Chamizal tract under instructions informally communicated to the engineer on behalf of the United States, which instructions look toward the securing of evidence of the formation of the tract through avulsion, and in view of the fact that under the liberal practice which has hitherto ordinarily obtained before international commissions with regard to pleading and procedure Mexico may even yet be permitted by the commission to revert to her original theory of avulsion, it is deemed best to consider in this argument to a limited extent the manner of the formation of the Chamizal tract and the law applicable thereto.

It has been already herein demonstrated by a recitation not only of the circumstances leading up to and surrounding the convention of November 12, 1884, but also by the acts of the respective parties thereafter-both through their high officials and through the actual interpretation of the convention by the International Boundary Commission in its decision of the various changes in the Rio Grande from New Mexico to its mouth-that the treaty of 1884 is an agreement to define and interpret the language of the treaties of 1848 and of 1853, so far as those treaties fix the middle of

a See U. S. Countercase, p. 6-9.

the channel of the Rio Grande and the Rio Colorado as boundaries between the two countries. Indeed, the language of the preamble of the treaty will permit no other construction. (U. S. Case,

App., p. 67.) ·

Yet, whether the matter be decided by the law as laid down in the convention of 1884, or by the law of nations as defined by the decisions and opinions of courts and of distinguished jurists and text-writers from all countries of the world, it will be demonstrated that the disputed land was formed in such a way as to make it the territory of the United States of America.

Article I of the boundary convention of 1884 provides that the dividing line shall forever follow the center of the normal channels of the rivers named, notwithstanding any alterations in the banks or in the course of those rivers, provided that such alterations be effected (a) by natural causes, (b) through the slow and gradual erosion and deposit of alluvium, and (c) not by the abandonment of an existing river bed and the opening of a new one.

It is apparent that the treaty of 1884 intended to lay down as "rules for the determination of such questions" as might arise(1) That the dividing line shall forever follow the normal river channel so far as possible.

(2) That alterations in the banks and in the course of the river should occur without changing the natural fluvial boundary. (3) That such alterations must be from causes natural to that river.

(4) That such alterations must occur from slow and gradual erosion and deposit of alluvium; and

(5) Not by the abandonment of an existing river bed and the opening of a new one.

The first matter for consideration is to understand somewhat the nature and condition of the Rio Grande and of its valley, so that a proper interpretation of the words of the treaty may be made wherein it states that the river shall follow the center of the normal channel forever, even though alterations in the banks or in the course of the river occur by naturala causes.

The best description in the printed cases of the river near El Paso and Juarez is probably the language of O. H. Ernst, major of engineers, in a report made to the Secretary of State of the

a Italics ours.