Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part II
No. 759.
Mr. Bayard
to Mr. Connery.
Washington, January 16, 1888.
Sir: I inclose for your information copies of correspondence between the Hon. William H. Crain, a member of Congress from Texas, and myself, touching the need of practically determining the boundary between the United States and Mexico where it follows the channel of the Bio Grande or Bravo.
[Page 1100]You may incidentally, and without making any proposition to the Mexican Government, inquire and report what machinery, if any, exists in Mexico for determining questions arising under the convention of November 12, 1884.
In conclusion, I desire to add that copies of this correspondence have also been sent to the Secretary of the Treasury, for his information and for such expression of his views as he may deem necessary.
I am, etc.,
Mr. Crain to Mr. Bayard.
Washington, D. C., January 9, 1888.
Sir: I have the honor to submit for your consideration the inclosed communication from Mr. J. J. Cocke, collector of customs of the district of Brazos Santiago, in the State of Texas, in which he forcibly presents reasons why there ought to be a treaty between Mexico and the United States for the purpose of establishing the boundary between the two countries.
Your early attention to this subject is earnestly invoked.
I have, etc.,
Mr. Cocke to Mr. Crain.
Collector’s Office, December 31, 1887.
Dear Sir: I lately applied to the honorable Secretary of the Treasury for an increase of the force of mounted inspectors for the district of Brazos Santiago, and my application was refused for economical, reasons. Since then the pay of all the mounted inspectors and clerks has been reduced on similar grounds and for lack of the necessary appropriation by Congress. On this last I hope you will make a note and try to secure the necessary amount in future. But as to the inspectors, I think it a hardship upon them to work for less pay, when they have less assistance and less rewards of compensation than before.
This district failed to pay expenses last year. But I do not think that the mounted inspectors had anything to do with it. In my opinion the revenue derived from this district would not be materially diminished if there were no mounted inspectors except one at each sub-port. The district would then pay expenses, but the business men of all southwestern Texas would be ruined and the people generally become demoralized through continuous violations of law. The honest inspectors would continue to make entry according to law, until they found it did not pay, but the bulk of the goods and stock sold on this side would be brought from the “free town” of Tamaulipas, where everything is cheaper. With an increase of force a good deal of the smuggling could be stopped. But having failed to get it, the only other remedy that suggests itself at present is a decrease of the distance to be traversed hy the mounted inspectors. This can be effected only by a change in the boundary line of the two countries, the United States and Mexico, to the actual channel of the Rio Grande as it now runs, and subjecting the numerous bancos or cut-offs to the jurisdiction of the United States. This would be a partial remedy for the evil, hut would be of great advantage in the administration of the criminal as well as the customs laws, and therefore I wish to call your attention to the anomalous condition of the boundary between the two countries along the Lower Rio Grande.
The actual boundary line at the time of the treaty of Guadalupe Hidalgo and the survey made thereunder, was the center of the channel of the river at that line. Since then no man knows where it is. For want of that knowledge, with a degree of accuracy that would satisfy the court, the most noted smuggling ease was lost by the Government at the last term of United States district court in this city, and every other case may be lost in like manner if the defendant can have a good lawyer and make the point of “boundary unknown.”
[Page 1101]The bed of the Rio Grande is constantly changing, as well by erosion and accretion as by sadden evulsion and cutting new channels, abandoning the old ones. Within the past ten years I have known the Rio Grande to move its bed 1 mile by simple erosion and accretion and cut-offs or bancos of from 20 to 200 acres in extent, to be made in forty-eight hours. Some of these cut-offs continue and increase by deposit from the river, others have been swept entirely away. Under these circumstances it is impossible for any one (and especially a smuggler when caught) to know Where the boundary is, and it is impossible to convict any man who smuggles from a banco unless caught a long way off from it. There is no survey made nor record kept of the time and place of a cut-off, and generally no one can say whether such banco or cut-off is greater or less in extent now than then.
The so-called “Morteritos treaty” of November 12, 1884, proclaimed September 14, 1886, is perfectly worthless. Though framed apparently for the express purpose of defining the boundary, it does not do it any more effectually than the former treaty. The Mexican diplomat, as usual, got away with the “Gringo.” That treaty declares that “boundary shall be the center of the normal channel, with any changes caused by erosion or accretion; any other change by cutting a new bed, etc., shall produce no change in the boundary as fixed in 1852, but the line shall continue in the middle of the old bed, even when it becomes dry.” Right there lies the trouble. Who is to determine where the old bed’s middle is? When there are two or three old beds, how is it to be decided which was abandoned by the river before 1852, and which since?
These bancos, with their uncertain boundaries, afford safe retreats for smugglers, thieves, kidnappers, murderers, and every class of criminals, as well as bases of supplies from which to carry on their operations free from interference from either Government. Liquors and tobacco and all kinds of portable merchandise are taken there and smuggled into Texas as opportunity offers. The two inspectors at Santa Maria lately had positive information of a hundred gallons of mescal in the Bolsa Banco ready to be brought over. They watched day and night for it but could not catch it. While they were on one side the liquor went out on the other, and was consumed at some big Christmas “bailes” (dances), about 15 miles in the country. That is one instance when the officers knew of the smuggling and could not prevent it. I could give you a hundred. If these nests were broken up smuggling would be greatly reduced. I think the only way to do it is to make a new treaty, defining the boundary between Mexico and the United States to be the channel of the Rio Grande, and giving to the United States and the State of Texas both civil and criminal jurisdiction over the bancos or cut-offs on this side, ownership of the land to be settled by other provisions of treaty or courts provided for thereunder. This would enable the mounted inspectors to ride through and examine the bancos instead of going around on the outside and see nothing, besides making a saving in distance traveled of from 1 to 4 miles. The Texas cut-off on the Mexican side should be left under the political jurisdiction of Mexico. All dutiable articles in either country should be made to pay duties as soon as they cross the main stream of the Rio Grande, and only then; and the officers of either side should have every facility to detect violations of law, instead of, as now, being hampered by various obstacles of nature, aggravated by laws and treaties.
I have dwelt rather long on the subject, but hope you will be able to understand the situation and do something to remedy it.
I am, etc.,
Mr. Bayard to Mr. Crain.
Washington, January 12, 1888.
Sir: I have the honor to acknowledge the receipt of your letter of the 9th instant, submitting for my consideration a communication addressed to you by Mr. J. J. Cocke, collector of customs of the district of Brazos Santiago, in the State of Texas, touching the need of practically determining the boundary between the United States and Mexico where it follows the channel of the Rio Grande or Bravo. My thanks are due for this reference of the letter of Mr. Cocke, who treats the subject intelligently and sets forth his conclusions with clearness and force.
Mr. Cocke argues that the existing provisions of the treaty of Guadalupe Hidalgo and of the boundary convention of November 12, 1884, do not effectively meet the case of constant changes in the river bed caused by the cutting of new channels, and advocates a new treaty defining the boundary between Mexico and the United States to be the channel of the Rio Grande, and giving to the United States and the [Page 1102] State of Texas both civil and criminal jurisdiction over the or cut-offs on this side, ownership of the land to be settled by other provisions of treaty or courts provided for thereunder.”
The general question involved was exhaustively considered by Attorney-General Cushing in an opinion dated November 11, 1856 (Opinions Attorneys-General, VIII, 175), the precise point before him being the propriety of a clause proposed by the boundary commissioners, under the treaty of Guadalupe Hidalgo for determining questions of jurisdiction and ownership arising from the changes in the channel of the Rio Grande, and Mr. Cushing adduced incontrovertible precedents and arguments to show the concurrence of authorities in holding that “when a river is the line of arcifinious boundary between two nations, its natural channel so continues notwithstanding any changes of its course by accretion or decretion of either bank, hut if the course be changed abruptly into a new bed by irruption or evulsion, then the [deserted] river-bed becomes the boundary.”
Articles I and II of the boundary convention of November 12, 1884, lay down this accepted international doctrine and make it the determining rule as between the United States and Mexico. I inclose a copy of that convention for your inspection. It is seen that it merely prescribes the rule, but provides no means of applying it to determine given cases, and it is to this omission, rather than the rule itself, that the strictures of Mr. Cocke apply.
It may be practicable to arrange with the Mexican Government for an international river commission to apply the convention of 1884, the case arising, but as such an arrangement would not be effective without legislative provision for expenses, I would prefer to have some indication of the feeling of Congress in the premises before entering on any formal negotiation; and moreover, it would seem proper, in view of the association of revenue questions with that of jurisdiction, to consult the Secretary of the Treasury on the subject. I have accordingly communicated to Mr. Fair-child a copy of your letter and its inclosures and of my present reply.
I am, etc.,