American and British Claims Arbitration

to the Gulf, to determine in fairness whether the proposed dam would obstruct or impair' a navigable river of the United States."'

This suggestion of a man Dr. Boyd calls "illiterate' was afterwards held to be sound law by the Supreme Court of the United States.

The Secretary of War, under date of February 19, 1897, referred the whole matter to the Attorney General for his opinion as to

"whether under the existing state of the law there is any way for the United States authorities to prevent the construction of the said dam; and if so, what the remedy is."

In his letter to the Attorney General, the Secretary of War pointed out that

"permission to construct the dam has not been given by the Secretary of War, nor has he approved or authorized the same.

He discusses the navigability of the Rio Grande at some length, pointing out that "it has been recognized by Congress to be a navigable water at El Paso' (the reference here doubtless being to certain acts of Congress permitting the building of bridges), and reaches the conclusion that the proposed dam will

"materially affect its navigability throughout its entire course to the Gulf of Mexico."

In reply, under date of April 24, 1897, the Solicitor General reviews the applicable statutes, the announced purposes of the company, and the finding of the Secretary of War with respect to the navigability of the river, and answers the question of the Secretary of War as follows:

"The answer to your inquiry therefore is:

"(1) That the Secretary of the Interior had no power, under the provisions of the act of March 3, 1891 (supra), to grant the rights claimed.

(2) That the remedy of the United States is by injunction under section 10 of the act of September 19, 1890 (supra), and if the dam has been constructed, also by criminal prosecution.

"Upon being advised that the obstruction has been or is about to

1 Eighth endorsement, Colonel Anson Mills, February 15, 1897. Appendix to the Answer, pp. 304-305.

2 British Memorial, Exhibit E, p. 94.

3 The Secretary of War to the Attorney General, February 19, 1897. Appendix to the Answer, p. 314.

4 Id. 5 Id.

The Secretary of War to the Attorney General, February 19, 1897. Appendix to the Answer, p. 314.

be erected, I shall at once order proper proceedings to be instituted. by the United States district attorney under section 10 of the act approved September 19, 1890 (26 Stat. 454).''1

The War Department then called upon General Mills for information as to whether or not the "construction of [the] Elephant Butte Dam has been or is about to be commenced.'" General Mills telegraphed that, while construction at Elephant Butte proper was not under way, the claimant company had been at work for "the past five months on what they term auxiliary works below, at Fort Selden. ''3

The Attorney General then instructed the proper United States. Attorney, authorizing suit, in case the Boyd companies persisted "in their alleged purpose of obstructing the navigation of the Rio Grande by the construction of their dam.”

This record, practically as fully as the United States has now produced it, has been available in public documents of the United States for years. It is submitted that it clearly shows that the procedure of the Government of the United States was in all respects correct. The suit against the claimant company was brought upon a ground which the officers of the Government concerned, after the proper consideration and investigation, honestly believed to be sound in law and fact. Moreover, this honest belief was not only held by the officers who brought the suit, but it was held and very strongly held by the officers of the Department of Justice, who subsequently had personal charge of the proceedings. It is submitted that no one can read the subsequent correspondence of Attorney General Griggs, who took a personal interest in the proceedings and argued the case for the first time in the Supreme Court, without coming to the conclusion that Mr. Griggs, a very distinguished lawyer, firmly believed that he had a good case. And the same is true with respect to Mr. Marsden C. Burch, an attorney in the Department of Justice, who subsequently took over the active conduct of the case.2

1 The Solicitor General to the Secretary of War, April 24, 1897. Appendix to the Answer, p. 323.

2 Gen. John M. Wilson, Chief of Engineers, to Col. Anson Mills, telegram, May 1, 1897. Appendix to the Answer, p. 325.

3 Col. Anson Mills, Commissioner, to Gen. John M. Wilson, Chief of Engineers, telegram, May 2, 1897. Appendix to the Answer, p. 325.

The Acting Attorney General to the United States Attorney for New Mexico, May 7, 1897. Appendix to the Answer, p. 330.

* See the Attorney General to Mr. E. C. Roberts, March 27, 1900. Appendix to the Answer, p. 368; The Attorney General to Mr. J. L. Campbell, January 4, 1901. Appendix to the Answer, p. 415. See also, The Attorney General to the Secretary of the Interior, November 16, 1900. Appendix to the Answer, p. 407.

6 Mr. M. C. Burch to the Attorney General, April 24, 1902. Appendix to the Answer, pp. 444-450.

The Motive for the Suit versus the Ground for the Suit.

It is not contended that the decisive motive in the institution of this particular suit at this particular time was the protection of navigation. It is contended that the right and duty to protect navigation existed and that the contentions of the Government as to the law were absolutely sound and were in all essentials sustained by the courts. As to the facts, the question was doubtful and has never been determined. But it was a proper question to submit to the courts. It has already been pointed out that the desire to protect Mexico's rights and to prevent the claimant company from exacting a subsidy for not invading these rights was the decisive motive for bringing the suit, but it is submitted that nothing is better established as a proposition of Anglo-American law than that the motives of a litigant in exercising his legal rights, so long at least as these motives are not malicious, are wholly immaterial; and it is further submitted that it needs no argument before an international tribunal to establish the proposition that a desire on the part of a Government to live up to its treaty rights, nay more, to live up to its obligations based on comity and neighborly relations, is not a malicious motive, but a highly creditable motive. It would be most unfortunate if the principle should be established by an international decision that, when State A makes complaint of some action to State B, and State B, thereupon, after examining its municipal law, goes into its own courts to restrain the action complained of, as an infraction of some municipal law, it is, thereafter, to be called to account in an international court on the ground that its real motive in exercising an undoubted legal right was not the importance of that right itself, but its desire to live up to its international obligations.

The Conspiracy Theory.

It is impossible, within the limits set for this Answer, to deal in any detail with the conspiracy theory which Dr. Boyd has put forward with such virulence for so many years and which apparently has been adopted by His Majesty's Government, at least in part. This theory, in whatever form asserted, rests on inuendos, inferences, and "common knowledge," and the sinister inuendo of a line may require several pages by way of answer, if any answer is to be attempted, since it is necessary to prove a negative. It is desired, however, in this connection, to call attention to three statements in the British Memorial.

1 See British Memorial, Exhibit "N," Statement of case for the claimant, filed in the Department of the Interior, by Dr. Nathan Boyd, November 16, 1915, p. 27, infra, p. 29.

NEWSPAPER EVIDENCE.

First, as already pointed out, the British Memorial says:

"The El Paso Daily Herald, in its issue of November 16, 1900, announced that:

"When General Anson Mills went to the City of Mexico last month, he went there to ask the Secretary of State and President Diaz to continue their objections to the building of the Elephant Butte Dam and other dams on the Rio Grande above El Paso.' Exhibit E, page 27.""

Although Dr. Boyd has been reprinting this newspaper squib for many years in exactly this form, it is not correctly quoted. It will be observed that the reference given in the British Memorial in support of this newspaper statement is "Exhibit E, p. 27." In accordance with the letter of the Counselor of the British Embassy to the Agent for the United States of April 6, 1923, we must read Exhibit "N" for Exhibit E. Turning to Exhibit N, it is another "statement" of Dr. Boyd filed November 16, 1915. In this "statement" Dr. Boyd says:

"That the said Mexican claims were wholly fictitious and were inspired as well as endorsed by General Anson Mills and his associate speculators in El Paso Valley lands are matters of common knowledge. In fact, The El Paso Daily Herald, a Republican organ that supported Anson Mills' International Dam Scheme, in its issue of November 16, 1900, announced that:

Turning, however, to what may be deemed satisfactory evidence of what this "Republican organ" did say, if indeed the word "evidence" can properly be used in connection with this newspaper paragraph, we find that the paragraph occurs in an account of a meeting of the Irrigation Committee of the El Paso Chamber of Commerce, which, at that time, if the account be accurate, favored Dr. Boyd's Elephant Butte Dam Scheme. This is apparent from a paragraph which precedes the one so often quoted by Dr. Boyd. The former reads as follows:

1 British Memorial, p. 6.

2 The Counselor of the British Embassy to the Agent for the United States April 6, 1923. Appendix to the Answer, p. 759.

3 British Memorial, Exhibit "N," p. 27.

"The grounds of all former proceedings were carefully gone over, and the committee congratulated itself on the fact that all objections to the Elephant Butte Dam had been withdrawn and that Minister Azpiroz, the Mexican representative at Washington, had expressed the willingness of the Mexican Government to withdraw all objections to all schemes on the river above El Paso.''1

The article later states:

"It was stated that when Gen. Anson Mills went to the City of Mexico last month that he went there to ask the Secretary of State and President Diaz to continue their objections to the Elephant Butte and other dams in the river above here.""2

A certified copy of the entire newspaper article in question is printed in the Appendix to the Answer, pages 732 to 734. It will be observed, therefore, that when this newspaper report is traced to its source, instead of the El Paso Daily Herald announcing anything, the El Paso Daily Herald printed an account of a meeting of supporters of Dr. Boyd's Elephant Butte Dam Scheme, at which, according to the reporter, "it was stated," etc. And, after all, what was stated, even if true, and the United States is wholly uninformed as to whether it is true,-means nothing at all.

This newspaper paragraph has been discussed at this length, first, because it is typical of the arguments which have for years been introduced by Dr. Boyd in support of this claim, and, second, because, if the conspiracy theory is to be discussed, this is believed to be literally the only piece of "evidence" which there is to discuss, aside from the public documents of the United States, which are submitted in the Appendix to the Answer, and the "common knowledge" referred to by Dr. Boyd.

GENERAL MILLS' RESIGNATION.

Second, the British Memorial recites the fact that there were:

"Petitions signed by the principal owners of the irrigable lands under the defendant companies' said Elephant Butte Dam Project, and by many of the public officials and other prominent citizens of New Mexico, were addressed and forwarded to President Roosevelt, at the White House, praying that an investigation be made on the charges, preferred in the said petitions (Annex No. VI) as to

1 Article, El Paso Daily Herald, November 16, 1900. Appendix to the Answer, p. 733. 2 Id., p. 734. Italics ours.

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