El Paso Herald from El Paso, Texas on June 15, 1911 · Page 2
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El Paso Herald from El Paso, Texas · Page 2

El Paso, Texas
Issue Date:
Thursday, June 15, 1911
Page 2
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& Jf Interesting Furniture 25 % Discount On Bedroom Furniture r For the balance of the week we offer a 25 percent discount on birdseve maple bedroom suits. Birdseye maple furniture is so pretty and this is a liberal discount. June brides with the new home to furnish should not overlook this offer. Mahogany Parlor Suit Look at the mahogany parlor suit now shown in our* window. Five pieces, and the price is only $80.00. Medicine Cabinets $1.50 A medicine cabinet is a handy thing to have. These at $1.50 come in oak and white enamel.v The enameled ones are nice for the bathroom where everything is white. Price only. .................................................. $ 1.50 ^ e have a larSe stock of go carts. ViO tS ^Te have a special cart, complete with hood, at $5.95. Also, we mention specially some extra large styles at $13.50 and $15.00. EL PASO FURNISHING C o . BOTH PKONCS 2044 OF COMMISSIONER Ul FLEUR FfilLS TO SETTLE (Continued from Page 1.) We manufacture any and all kinds, Tents. Awnings. Curtains, Shades, Flys, Stack, flay and Wagon Covers, Paul ins, Bed Sheets, etc/ A full line of Tent and Camp Supplies. A full line of Duck, IJight, Heavy, Wide and Narrow. H. J. COLLINS, Mgr. HISTORY OF mm CASE The contention of Mexico from the j very start of the case many years j ago, and the main rorce or Her argu- j anent during the trial of the case I here this year before the especially selected board of arbitration has been that the treaty of 1848 be« ! tween the United States of America ! and the United Mexican States made ; that boundary a fixed and invariable | one and that this line was marked ! both on the lai%l and along the cefi- i tral channel of the river as it then ! ran. Following up this theory Mexico J contended further that the changes ^in j the river were due to evulsion, which | means the sudden separation of large pieces of land from one side and their transfer to the other by the changing of the course of the river. On this ground Mexico ‘contended that the land was by right hers and she alone was entitled to it. The River the Boundary.*'» The United States has always contended that the treaty of 1848 was a fluvial boundary; that is that it was a river boundary and therefore not fixed and invariable as contended bj' Mexico. Following up this theory and the treaties that have been made from time to time bet\«een the two countries, the United States contended that the land on the American side was put there by accretion; that is, that it was caused by the .gradual erosion of the river against the Mexican bank and the deposit of silt on the American sid'e. The property involved, worth several millions of dollars, is that part of the city of El Paso lying south of Seventh street in that district better knowft as ChihuahuaUta. There are about 6000 residents in the strip and the land is worth at least $7,000,000. The Origin of the Case. The Chamizal case was first brought up as an issue between the two governments in 1895, when Pedro I. Gar­ cia represented to his government that his land on the Mexican side of the river had been washed away by a sudden change in the river’s channel. The question was taken up between the two countries and the commissioners of Mexico and the United States met for the purpose of deciding it. Gen. Anson Mills was then acting for the United States and commissioner Orsono for Mexico. But they could not agree. Mills contended that the change had been caused by erosion and Ors.ono contended that it had been made by evul­ sion. Then the two commissioners, failing to reach an agreement, recommended their governments that a third commissioner be selected to act as an arbitrator and settle the question. The Arbitration Treaty. On June 24, 1910, a treaty was signed between the two countries arranging for this plan. Gen. Anson Mills was appointed to represent the United States and Fernando Beltran y Pu^a to represent Mexico, while the two countries through the state departments selected Eugene Uafleur, a prominent lawyer of Montreal, Canada, to act as arbitrator, and it was arranged that the two governments would abide by the decision of this commission. « Trial of the Case. During the trial of the case the United States was represented by attorneys W. O. Dennis, of Washington, D. C., a^ent for the United States, and Richard F. Burges, of El Paso, and Walter B. Grant, of Boston, Mass., his assistants. Mexico was represented by Joaquin Casasus, fc*mer ambassador of Mexico to the United States; W. J. Davis, an attorney of Montreal, Canada, and Seymour Thurmond, an El Paso attorney. The final trial of the case was opened in the federal courtroom in El Paso on May 15, and was ended on June 2. Argument of counsel for both sides filled 725 pages of typewritten matter. than the present city of El Paso to its •mouth in the Gulf of Mexico, was constituted. the boundary line between tihe United States and Mexico. The contention on behalf of the I nited States of Mexico is that this dividing line was fixed, under these treaties, in a ^permanent and invariable manner, and consequently that the changes which 'have taken «place dn the river have not affected the 'boundary line which was established and marked in 1852. American Contention. On behalf of the United States of America it is contended that according to the true intent and meaning of the treaties of 1848 and. 1S53, if the channel of the river changes by gradual accretion the boundary follows the channel, and that it is only in case of a sudden change of bed that the river ceases to be the boundary, which then remains in the abandoned bed of tihe river. It is further contended on behalf of the United States of America that by the terms of a subsequent boundary convention in 1884. rules of interpretation were adopted which became applicable to all changes in the Rio Grande which have occurred since the river became the international boundary, and that the changes which determined the formation of the Chamizal tract are changes resulting from slow and gradual erosion and deposit of alluvion within the meaning of that convention, and consequently changes which left the channel of the river as the international boundary line. The Mexican government, on the other hand, contends <t<hat the Chamizal tract having been formed before the coming in force of the convention of 1884, that convention was not retroactive and jrould not affect the title to the tract, and further contends that even assuming the case to be governed by the convention of 1884 the changes in the channel have not been the result of slow and gradual erosion and deposit of alluvion. Finally the United States of America have set up a claim to t'he Chamizal tract by prescription, alleged to result from the undisturbed, uninterrupted, and unchallenged possession of the territory since the treaty of 1848. In 1889 the governments of the United States and of Mexico, by a convention, created the international boundary commission for the, purpose of carrying out the principles contained in the convention of 1884 and to avoid the difficulties occasioned ¡by the changes which take place in the bed o!f the Rio Grande where it serves as t'he boundary between t’he two republics, and for other purposes enumerated in Article 1 of the convention of 1889. At a session of the boundary commissioners, held on the 4th of November, 1895, the Mexican commissioner presented the papers in a case known as “El Chamizal Xo. 4.” These included a complaint made by Pedro Ignacio Garcia, who alleged in substance that he had acquired certain property formerly lv- ing on the south side of the Rio Granule known as El Chamizal, which in consequence of tihe abrupt and sudden change of current of the Rio Grande was now on the north side of the river and within the limits of El Paso, Texas. This claim was examined by the ^international boundary commissioners, who heard witnesses upon the facts, and who, after consideration, were unable to come to any agreement, and so reported to their respective governments. As a result of this disagreement the convention of June 24. 1910, was signed, and the decision of fhe question was submitted to the present commission. Fixed Line Theory. Article \ of the treaty of Guadalupe Hidalgo of 1848 provides for a boundary i (between the United States and Mexico ! in the following terms: j “The boundary line between the two I republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, othemviae called Rio Bravo del Norte, or opposite the mouth of its deepest, branch, if it should have more t'lian one branch emptying directly into the sea. From thence, up the middle oi that river, following the deepest channel, where it has more than one, to the point where at strikes ‘the southern (boundary cif Neiw Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line ot Now Mexico until it intersects Uie first branch of the river Gila; (or il it should not intersect any branch of that river, then, to the point on the said line nearest to such branch, and thence m a direct line to the same) thence clown the middle of the same branch and of the said river, until it empties into the Rio Colorado; thence, across the Rio Colorado, following-the division line between L pper and Lower Californa, to the Pacific ocean. “The southern and western limits, of Now Mexico, mentioned in this article, are those laid down in the map entitled, “Map of the United Mexican States, as organized and defined by vaiious acts of the congress of said republic, and constructed according to the best authorities. Revised edition. Published at New York in 1847 by J. Disturnell,’ of which map a copv is added to this treaty, bearing the signatures and seals of the undersigned plenipotentiaries. And, in order to preclude all difficulty in tracing upon the ground the limit separating Upper from Lower California, it is agi eed that the said limit shall consist of a straight line, drawn from the middle or the Rio Gila, where it unites, with the Colorado, to a point on the coast of the 1 aciiio ocean, distant one marine league due south of the southernmost point of ,the port of San Diego, according to the plan of said port, made in tne year 1782, by Don Juan Pantoja, second sailing master of the Spanish fleet, and published at Madrid in the year 1802, in the atlas to the voyage of the schooners Sutil and Mexieana ; of which plan a copy is hereunto added, signed and sealed by the respective plenipotentiaries. ‘•In order to designate the boundary line with due precision, upon’ authoritative maps, and to establish upon the ground landmarks which shall show the limits of both republics, as described in the present article, the two governments shall each appoint a commissioner and a surveyor, who, befbre the expiration of one year from the date of the exchange of rafifications of this treaty, shall meet at the port of San Diego, and proceed to run and mark the said boundary in its whole course to the mouth of the Rio Bravo del Nor*» “The boundary line established by this article shall be religiously respected by each of the two republics, and no change shall ever be made therein, except by the express and free consent of both nations, lawfully given by the general government of each, In conformity with its own constitution.” The fluvial portion of the boundary called for by the above treaty, insofar as the Rio Grande is concerned, extending from its mouth to the point where it strike» the southern boundary of New Mexico, appears to have been fixed by the surveys of the international boundary commission in 1852. In 1853, in consequence of a dispute as to the land boundary and the acquisition of a portion of territory now forming part of New Mexico and Arizona, known as the “Gadsden Purchase,” the boundary treaty of 1852 was signed, the first article of which deals with the boundary as follows: *The Mexican republic agrees to designate the following as her true limits with the United States for the future, retaining the same dividing line between the two Californias as already defined and established according to the fifth article of the treaty of Guadalupe Hidalgo, the limits between the two republics shall be as follows: Beginning in the gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, as provided in the fifth article of the treaty of Guadalupe Hidalero, thence as de- ifned in the said article, up the middle of that river to the point where the parallel of 31 deg. 47 min. north latitude crosses the same, thence due west 100 miles, thence due south to the parallel of 31 deg. 20 mln. north latitude, thence along the said parallel of 31 deg. 20 min. to the 111th meridian of longitude west of Greenwich, thence in a straight line to a point on the Colorado river 20 English miles below the junction of the Gila and Colorado rivers, thence up the middle of the said river Colorado until it intersects the present line between the United States and Mexico. "For the performance of this portion of the treaty each of the two governments shall nominate one commissioner to the end that, by common consent, the two thus nominated having met in the city of Paso^ del Norte, three months after the exchange of the ratifications of this treaty taay proceed to survey and mark out upon the land the dividing line stipulated by this article, where It shall not already have been surveyed and established by the mixed commission according to the treaty of Guadalupe, keeping a journal and making proper plans of their operations. For this purpose, if they shall judge It necessary, the contracting parties shall be at liberty each to unite to its respective commissioner, scientific or other assistants, such as astronomers and surveyors, whose concurrence shall not be considered necessary for the settlement and ratification of a true line of division between the two republics; that line shall be alone established upon which the commissioners may fix, their consent in this particular being considered decisive and an integral part of this treaty, without the necessity of ulterior ratification or approval, and without room for interpretation of any kind by either of the parties contracting. “The dividing line thus established shall in all time be faithfully respected by the two governments without any variation therein, unless of the express and free consent of the two, given In conformity to the. principles of the law of nations, and in accordance with the constitution of each country respectively. “In consequence, the stipulation in the fifth article of the treaty of Guadalupe upon the boundary line therein described is no longer of any force, wherein it may conflict with that here established: the said line being considered annulled and abolished wherever it may not coincide with the present, and in the same manner remaining in full force where in accordance with the same.” The treaty of Guadalupe Hidalgo, signed on the 2nd of February, 1848, provides that the boundary line between the two republics from the gulf of Mexico shall be the middle of the Rio Grande, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico. It is conceded, on both sides, that if this provision stood alone it would undoubtedly constitute a natural, or ar- cifinious, boundary between the two nations and that, according to well known principles of international law, this fluvial boundary would continue, notwithstanding modifications of the course of the river caused by gradual accretion on the one bank or degradation of the other bank: whereas, if the river deserted its original, bed and forced for itself a new- channel in another direction the boundary would remain in the middle of the deserted river bed. It is contended, however, on behalf of Mexico, that the provisions in the treaty providing for a designation of the boundary line with due precision, upon authoritative maps, and for establishing upon the ground landmarks showing the limits of both republics, and the direction to commissioners and surveyors to run and mark the boundary in its ful course to the mouth of the Rio Grande, coupled with the final stipulation that , the boundary line thus established should be religiously respected by the two republics, and no change should ever be made therein, except by the express and free consent of both nations, takes this case out of the ordinary rules of international law' and by a conventional agreement converts a natural, or ar- cifinious, boundary into an artificial and Invariable one. In support of this contention copious references have been made to the civil law, distinguishing between lands whose limits were established by fixed measurements iagri llmitati) and arcifinious lands, which .were not so limited (agri arcifinii). These two classes of lands were sometimes contrasted by saying that arcifinious lands wore those which had natural boundaries, such as mountains and rivers, while limited estates were those which had fixed measurements. As a consequence of this distinction the Roman law denied the existence of the right of alluvion in favor of the limited estates which it was the custom to distribute among the Roman generals, and subsequently to the legionaries, out of conquered territory. This restriction of the ordinary rights appurtenant to riparian ownership is, however, considered, by the ^est authorities to have been an exceptional provision applicable only to the case above mentione^. and one of the principal authors relied on by the Mexican consul (A. Plorque, legislation des eaux et de la navigation. Vol. 2, pag:e 66), clearly establishes that the mere fact that a riparian proprietor holds under a title which gives him a specified number of acres of land does not prevent him from profiting by alluvion. The difficulty in this case does not arise from the fact that the territories in question are established by any measurement, but because the boundary is ordered to be run and marked along the fluvial portion as well as on the land, and on account of the further stipulation that no change shall ever be made therein. Do these provisions and expression, insofar as they refer to the fluvial portion of the boundary, convert it into an artificial boundary whfch will persist, notwithstanding all changes in the course of the river? In one sense it may be said that the adoption of a fixed and invariable line, so far as the river Is concerned, would not be a perpetual retaining of the river boundary provided for by the treaty, and would be at variance with the agreement of the parties that the boundary should forever run in the middle of the river. The direction as to marking the course of the river as it existed at the time of the treaty of 1848 is not inconsistent with a fluvial line varying only in accordance with the general rules of International law, by erosion on one bank and alluvial deposits on the other bank, for this marking of the boundary may serve the purpose of preserving a record of the old river bed to serve as a boundary in cases in which it cuts a new channel. Numerous treaties containing provisions as to river boundaries have been referred to by the parties, showing that in some cases conventional arrangements are made that the river simpliciter shall be the boundary, or that the boundary shall run along the middle of the river or along the center or thread of the channel, while a small number of treaties contain elaborate dispositions for a fixed line boundary, notwithstanding the alterations 'which may take place in the river, -with provision, however, for periodical readjustments in certain specified cases. The difficulty with these instances is that no cases appear to have arisen upon the treaties :n question and their provisions throw little, if any, light upon the present controversy. *In one case only among those cited there appears to have been a decision by the court of cassation in France (Dalloz. 1858, Part 1, page 401) holding that when a river separate?» twTo departments or two districts, the boundary is fixed in an irrevocable manner along the middle of the bed of the river as it existed at the time of the qstabUlshment of the boundary, fand that it is not subject to any subsequent variation, notwithstanding the changes in the river. Whatever authority this decision may have in the delimitation of departmental boundaries in France it does not seem to be in accordance with recognized principals of international law If, as appears from the report, it holds that the mere designation of a river as a boundary establishes a fixed and invariable line. The above observations as to the treaty of 1848 would seem to apply to the Gadsden treaty of ¿853, taken by itself, for it provides, in similar language, that the boundary shall follow the middle of the Rio Grande; that the boundary line shall be established and marked, and that the dividing line shall in all time be faithfully respected by the two governments without any variation therein. While, however, the treaty of 1848 standing alone, or the treaty of 1853, standing alone, might seem to'be more consistent with the idea of a fixed boundary than one which would vary by reason of alluvial processes, the language of the treaty of 1853, taken in conjunction with the existing circumstances, renders it difficult to accept the idea of a fixed and invariable boundary. During the five years which elapse between the two treaties notable variations of the course of the Rio Grande took place, to such an extent that surveys made in the early part of 1853, at intervals of six months, revealed discrepancies which are accounted for only by reason of the changes which the river had undergone in the meantime. Notwithstanding the existence of such changes the treaty of 1853 reiterates the provision that the boundary line runs up the middle ot the river, which could not have been an accurate statement upon the fixed lino theory. Some stress has been laid upon the observations contained in the records of the boundary commissioners that the line they were fixing would be thenceforth invariable, but apart from the inconclusive character of this conversation it seems clear that in making any remarks of this nature the boundary commissioners were exceeding their mandate, and that their views as to J the proper construction of the treaties under which they were working couia not in any way bind their respective governments. In November, 1856, the draft of t’^e proposed report of the boundary commissioners for determining the boundary better between Mexico and the United States under the treatjr of 1853, was submitted by the secretary of the interior of the United States to the Hon- Caleb Cushing for his opinion as to whether the boundary line under that treaty shifted with changes taking place in the bed of the river, or •whether the line remained constant where the main course of the river ran as represented by the maps accompanying the report of the commissioners. The opinion of Mr. Cushing's is a valuable contribution on the subject by an authority on international m**. After considerations of the provisions of the treaty, and an examination fof a great number of authorities on the subject, Mr. Cushing reported that the Rio Grande retained its function of an international boundary notwithstanding changes brought about by accretion to one bank and the degradation of tho other bank, but that, on the other hand, if the river deserted its original bed and forced for itself a new channel In another direction, then the nation through whose territory the river thus broke its way did not lose the land so separated: the international boundary in that case remaining in the middle of the deserted river bed. This opinion ^vas transmitted to the Mexican legation at Washington and acknowledged by Senor Romero, then Mexican ambassador at Washington, who, without in any way committing his government, stated his own personal asqiiiescence in the principles enunciated as being equitable and founded upon the teachings of the most accredited expositors of international law. He further stated that he was transmitting a copy of the opinion to his government. There does not appear to have been any expression of opinion by the Mexican government at that time as to the soundness of the What Are You Paying For Your Groceries? Never mind—We will sell them to you for less money. 2 Packages Jello for 15c All Flavors 2 Packages City Soda Crackers National Biscuit Company’s 15c for • • • • •••• 2 Cans Pioneer Milk Large Size for . . . . . 15c 50 lb. sack Table Salt for................................50c 241b. Sack Gold Coin Flour for 75c Hot Weather, Ice Tea, per lb.... 35c, 50c and 75c Barrington Hall Coffee, 1 lb. 40c, 2 lb. can... 80c Gallon Can Pure Imported Olive Oil for... $3.00 100 lbs. Broken Head Rice for.. ^ .............-.$3.00 lOOlbs Monarch Flour for $2.85 DON’T FORGET- _That we have the Finest Meats and best Meat Cutters in El Paso. Send us your orders. We ship promptly. Standard Grocery Company Wholesale and Retail 208-212 Mills Street. Bell Phones 367 and 348 Auto 1901 Bell 932 Auto 1632 Night or Day Let Us «» Do Your Errands Bellevue Messenger Service 103 North Stanton Street “We Know Our Bustne»#.* views expressed by the honorable Mr. Cushing. Prom the last mentioned date until the signing of the convention of 1884, a considerable amount of diplomatic correspondence took place as to the meaning and effect of the boundary treatries of 1848 and 1853. Without go- ,ing into all the details of this corres- pandence, "Which ha» been fully discussed in the printed and oral arguments of the parties, it Is sufficient to say that during that period, with the exception of certain statements contained in a letter of Mr, Frelinghuy- sons’s, which will be adverted to later, the government of the United States Consistently adhered to the principles enunciated by attorney general Cush- inpr. On the Mexican side the correspondence revealed more fluctuations of opinion; the writers sometimes Indicating their view that the boundary created by the treaties in question was a fixed line, but more frequently qualifying such statement^ by making an exception in the ca«e of slow and sue- cessiTe increases resulting from alluvial deposits. While considerable importance appeared to be attached by the parties to various expressions contained in this correspondence, the commissioners, at an early stage ln^ the argument expressed their view that neither of the high contracting parties should be bound by the unguarded language contained in many of these letters. The only real importance to be attached to this correspondence is that it shows conclusively that a considerable doubt existed as to the meaning and effect of the boundary treaties of 1848 and 1853. However strongly one might be disposed to think that the treaty of 1848, taken by itself, or the treaty of 1853. taken by itself. Indicated an Intention to establish a fixed line boundary, it would be difficult to say that the question is free from doubt, in view of the opinion expressed by so high an authority as the Hon. Mr. Cushing upon the very point at Issue, and in view of the occasional concurrence In this opinion by some of the higher Mexican officials at the time it ^as given. It is in consequence of this legitimate doubt as to the true construction of the boundary treaties of 184S and 1S53, that the subsequent course of conduct of the parties, and their formal conventions, may be resorted to as aids to construction. In the opinion of the majority of this commission the language of the subsequent conventions and the consistent course of conduct of the hiR-h contracting parties, is wholly incompatible witji the existence o>f a fixed line boundary. Treaty of In 18H4 the following boundary convention 'was concluded between the two republics: , Whereas*, in virtue of the fifth article of the treaty of Guadalupe Hi- EL PASO SANITARY TURKISH BATHS 406 N. Oregon St. Under new management. Thoroughly Renovated. The cleanest and best ventilated Baths in t'he City. Cabinet Sulplvur Vapor Baths. Swedish Massage. First class white masseurs. Ladies by appointment. Massage given at your home. Summer rates: Turkish Rath and Massage ........$1.00 6 do. for ........................................... 4.00 Turkish Bath without Massage. .50 ^ do. for...........*.............................. 2.50 Shower and Rub ................................50 6 do. for ........................................... 2.50 Shower ..................................................25 am—mmmmmmmmmaammmmmmaa—mmmmmmmmmm (Continued on Page 3.) Make a Note that we are selling seeds of all kinds—Alfalfa seed, fresh field, garden and flower seeds. Guaranteed to produce the best results. Bruce Seeton Successor to O. Cx. SEETON & SON. Third & Chihuahua Sts.

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