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hour. By reference to the treaty, it will be found that it amounts to a simple recognition of the independence and the limits of the United States, without any language purporting a cession or relinquishment of right on the part of Great Britain. In the last article of the treaty of Ghent will be found a provision respecting grants of land made in the islands then in dispute between the two states, which affords an illustration of this doctrine. By that article, a stipulation is made in favor of grants before the war, but none for those which were made during the war. And such is unquestionably the law of nations. War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails can only derive validity from treaty stipulations.”
OPINION OF THE ATTORNEY-GENERAL OF THE UNITED
(8 Op. Att.-Gen. 175.)
When a river forms the boundary between two states.
SIR,Your note of this date, communicating a clause in the draft of the proposed report of the commissioners for determining the boundary between the Mexican Republic and the United States, presents the following question of public law:
“A portion of the boundary is formed by the Rio Bravo, which is subject to change its course in two ways: first, by gradual accretion of one of its banks, followed, in many cases, by corresponding deg. radation of the opposite bank; and, secondly, by the more violent action of the water, leaving its actual bed and forcing for itself a new one in another direction. In case of any such changes in the bed of the river, does the boundary line shift with them, or does that line remain constant where the main course of the river ran as represented by the maps accompanying the report of the commissioners ?
“ The response to this inquiry depends, in part, on the terms of the treaty between the two republics prescribing the boundary line, the material part of which, in so far as regards the present question, is to effect, that the line · beginning in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande,' shall proceed thence up the middle of that river’ to a certain point. The treaty further provides that commissioners appointed by the two governments shall survey and mark out upon the land the stipulated line, which, as agreed upon and established by them, shall in all time be faithfully respected, without any variation therein, unless by express and free consent of both republics (Treaty of December 30, 1853, 10 Stat. at Large, p. 1032.)
“ If the question here were of certain other parts of the boundary which are to run on parallels of latitude or by straight line from point to point, in that case the monuments placed by the commissioners, or the line as otherwise fixed by descriptive words referring to natural objects, or by the drawings and maps of the commissioners, would, it is plain, be conclusive, in all time, by force of the stipulations of the treaty. It would be the line agreed upon and established, even although it should afterwards prove that, by reason of error of astronomical observations or of calculation, it varied from the parallel of latitude where that was the line, or in the other part did not make exactly a straight line. So, if, in another portion of the boundary, which calls for the rivers Gila and Colorado, there were controversy concerning the identity of either as upon the northeastern boundary of the United States, as there once was in regard to the true St. Croix, then, also, by force of the treaty, the determination of that point, by the commissioners, would be conclusive in all time. But the present question is a different one, and depends in part for its solution upon other considerations.
“In this case the boundary is not an astronomical or geographical line, but a natural object, defined by the treaty. And there is no equivocation here between two distinct natural objects, each of them answering to the descriptive language of a stipulation. It is the Rio Bravo, with a course as definite, and almost as destitute of tributaries and embranchments, in its main course, as the Nile. That is a fact which cannot be modified by surveys or reports.
“ However, the established principles of public law come in here to settle the question in all its relations.
“ The respective territories of the United States and of the Mexican Republic are arcifinious; that is to say, territories separated not by a mathematical line, but by natural objects of indeterminate natural extension which of themselves serve to keep off the public enemy. Such are mountains and rivers. (Barbeyrac's Grotius, liv. ii., chap. 3, § 16 and note; Coceii Grotius Illustratus, ibid.)
“When a river is the dividing limit of arcifinious territories, the natural changes to which itself is liable, or which its action may produce on the face of the country, give rise to various questions, according to the physical events which occur, and the previous relation of the river to the respective territories. The most simple of all the original conditions of the inquiry is where the river appertains by convention equally to both countries, their rights being on either side to the filum aquæ, or middle of the channel of the stream. That is the present fact.
“With such conditions, whatever changes happen to either bank of the river by accretion on the one or degradation of the other; that is, by the gradual and, as it were, insensible accession or abstraction of mere particles, the river as it runs continues to be the boundary. One country may, in process of time, lose a little of its territory, and the other gain a little, but the territorial relations cannot be reversed by such imperceptible mutations in the course of the river. The general aspect of things remains unchanged. And the convenience of allowing the river to retain its previous function, notwithstanding such insensible changes in its course, or in either of its banks, outweighs the inconveniences even to the injured party; it is a detriment, which, happening gradually, is inappreciable in the successive moments of its progression.
“But, on the other hand, if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation, through whose territory the river thus breaks its way, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary.”
SECTION 6.—THE EFFECT OF A CHANGE OF SOVEREIGNTY.
(a) Upon Public Rights and Obligations.
(1 Wharton's Digest, 20–23.)
During the period of Texan independence, that State had issued bonds to the extent of many millions of dollars, secured by the revenues of the State; and in 1845, when Texas was annexed to the United States, her custom houses and the control over customs duties passed to the federal government. Some of these bonds were held in England; and an attempt was made before the claims commission of 1853, for the adjustment of claims between England and the United States, to hold the federal government responsible for the payment of the Texan bonds.
In his opinion, Mr. Upham, commissioner said :
“ The matter of the indebtedness of Texas was a distinct subject of agreement by the terms of the union. According to those terms the vacant and unappropriated lands within the limits of Texas were to be retained by her, and applied to the payment of the debts and liabilities of the Republic of Texas, and the residue of the lands, after discharging these debts and liabilities, was to be disposed of as the State might direct, but in no event were the debts and liabilities to become a charge upon the Government of the United States.' (U.S. Statutes at Large, vol. 5, p. 798.)
“ The lands of Texas were thus specifically set apart for the payment of the debts of Texas, by agreement of the two Governments, in addition to any separate pledge Texas had previously made of this class of property, for the payment of her debts.
“ The United States subsequently, by act of Congress, on the 9th of September, 1850, on condition of the cession of large tracts of these lands, agreed to pay Texas $10,000,000, but stipulated that $5,000,000 of the amount should be retained in the United States treasury until creditors, holding bonds, for which duties on imports were specifically pledged, should file releases, of all claims against the United States. [U. S. Statutes at Large, vol. 9, ch. 49, p. 446.]
“ It thus appears that the United States has acted, from the outset, in concert with Texas, in causing express provision to be made for the payment of these debts.
“ A difficulty early arose in carrying the law, above cited, into effect, for the reason that the pledge of payment of the debts of Texas was made generally upon her revenues, and was not specific
on imposts' eo nomine, and for the further reason that doubts arose whether any portion of the debts could be paid under this contract, unless the whole could be discharged.”
(Report of the commission of claims under the convention of 1853.) Mr. Dana says of this case:
“ It certainly would not be satisfactory to say, that the United States discharges its obligation to the creditors of Texas, to whom her customs were pledged, by paying only the amount of the customs received.
“ The United States determines what those duties shall be, in reference to the interest and policy of the whole Republic. The condition of Texas is changed by her annexation. The new government has a large control over the material resources of the inhabitants, in the way of internal revenues, excise or direct taxation, in its demands on the services of the people, and in the debts it can impose; in fact, the entire public system of Texas has passed into other hands, and no such state of things any longer exists as that to which the creditor looked. It may be better or worse, but it is not the same ; and, if the duties laid by the United States and collected in Texan ports did not in fact pay the debts, it would be unjust for the United States to limit the payment of the creditor to them. The truth is, by the annexation the United States changed the nature of the thing pledged, and is bound generally to do equity to the creditor.” (Dana's Wheaton, note 18.)
Mr. Lawrence says: “The liability of the United States for the debts of Texas came before the mixed commission, under the convention with England of 1853, in the case of a British subject who had received before the annexation, bonds secured by a pledge of the faith and revenue of Texas. It was disposed of on the ground that never having been made a subject for international interposition against the United States, it did not fall within the scope of the convention ; but it seemed to be admitted that the liability of the United States, if any, arose, not from the merger, but from the transfer, under the Constitution of the United States, to the Federal Government of the duties on imports. It was said by the American Commissioner, in announcing his opinion, that it was an inaccurate view of the case to regard this annexation as an entire adoption of one nation and its revenues by another. Texas is still a sovereign State, with all the rights and capacities of government, except that her international relations are controlled by the United States, and she has transferred to the United States her right of duties on imports.'
“ And he seemed to consider any claim arising from the previous pledge of such duties to be limited to their value. The British commissioner held that the obligation of Texas to pay her debts is not in dispute, nor has it been argued that the mere act of her annexation to the United States has transferred her liabilities to the Federal Government, though certainly, as regards foreign governments, the United States is now bound to see that the obligations of Texas are fulfilled. It is the transfer of the integral revenues of Texas to the Federal Government that is relied on as creating the new liability."
(Decisions of the Commission of Claims under the convention of 1853, pp. 405-420. Lawrence's Wheaton, ed. 1863, p. 54, note).
1 When Lombardy and Venice were respectively acquired by Italy at the close of the wars of 1859 and 1866 with Austria, the Italian government assumed no part of the general debt of Austria, but only the local debts of the ceded provinces.