The Mexican Commissioner filed a separate opinion dissenting from
that part of Mr. Lafleur's opinion relating to the fixed line and
the retroactivity and applicability of the treaty of 1884. Overruled
on these points, Mr. Puga felt himself justified in joining with the
Presiding Commissioner in construing the treaty of 1884 and therefore
united in the award dividing the Chamizal tract between the two
countries along the line of the river bed as it existed before the
flood of 1864.
I filed an opinion dissenting from that portion of the Presiding
Commissioner's opinion construing the treaty of 1884. I held the
Commission was not empowered by the two governments to divide the
Chamizal tract but was called upon to render a clean-cut decision in
favor of one or the other government. I recorded my conviction that
it would be "as impossible to locate the channel of the Rio Grande in
the Chamizal tract in 1864 as to re-locate the Garden of Eden or the
lost continent of Atlantis." And finally I pointed out, as I had in
1896, the impossible situation which would arise if any attempt were
made to apply the principles of the majority opinion in other cases,
concluding as follows:
"The American Commissioner does not believe that it is given to
human understanding to measure for any practical use when erosion
ceases to be slow and gradual and becomes sudden and violent, but if
this difficulty could be surmounted, the practical application of
the interpretation could not be viewed in any other light than as
calamitous to both nations. Because, as is manifest from the record
in this case, all the land on both sides of the river from the Bosque
de Cordoba, which adjoins the Chamizal tract, to the Gulf of Mexico
(excepting the canyon region), has been traversed by the river since
1852 in its unending lateral movement, and the mass, if not all of
that land, is the product of similar erosion to that which occurred at
El Chamizal, and by the new interpretation which is now placed upon
the Convention of 1884 by the majority of this Commission, not only is
the entire boundary thrown into well-nigh inextricable confusion, but
the very treaty itself is subjected to an interpretation that makes
its application impossible in practice in all cases where an erosive
movement is in question.
"The Convention of 1910 sets forth that the United States and Mexico,
'desiring to terminate * * * the differences which have arisen between
the two countries,' have determined to refer these differences to this
Commission enlarged for this purpose. The present decision terminates
nothing; settles nothing. It is simply an invitation for international
litigation. It breathes the spirit of unconscious but nevertheless
unauthorized compromise rather than of judicial determination."