any great extent, the result of rains, excepting in the spring when such rains melt the mountain snows. The floods of the Lower Rio Grande come from the Conchos and Pecos, chiefly from the former, and usually from heavy summer rains.

We longed only to escape from the walls upon which we now began to look as a prison. Ten hours of hard rowing each day, every one of which was burdened with the additional labor of dragging the boats over dangerous rapids, constant wetting by wading and ducking, had put us all in a condition of tension. * * *

* *

*

* *

*

nervous

In the foregoing sentences in brackets are not Professor Hill's. From the above excerpts from Professor Hill's article in the January number of the Century it will be seen that for at least 350 miles of the course of the Rio Grande below the mouth of the Conchos navigation for commercial purposes would be absolutely impossible, and that in Professor Hill's opinion the waters of the alleged navigable section— the Gulf section below Rio Grande City, about 150 miles upstream from the Gulf of Mexico-are contributed almost wholly by the Conchos and Pecos rivers.

In fact, upon more than one occasion Professor Hill has definitely asserted that the flood waters of the Rio Grande in New Mexico do not in any appreciable degree contribute to the flow of the river below the mouth of the Rio Conchos.

For four years the Department of Justice has sought to prove: (1) That the Rio Grande is navigable in New Mexico; (2) that if the Río Grande is not navigable in New Mexico it is navigable near its mouth, and that a storage dam at Elephant Butte, in Sierra County, N. Mex., would lessen the navigability of the river at this lower point. It is obvious from the correspondence on file in the Departments that the proceedings instituted by the Government against the Rio Grande Dam and Irrigation Company were instigated by General Mills and those responsible for the international dam project. It is equally obvious that the heads of Departments were originally misled by the misrepresentations that were made as to the navigable capacity of the Rio Grande in New Mexico, for when the proceedings against the company were first begun action was based upon the specific plea that the Rio Grande is navigable in New Mexico, a raft having been floated down the river from Canutillo to El Paso (a distance of 12 miles) in 1858 or 1859. Subsequently the plaint was amended as above.

The Territorial courts and the Federal Supreme Court have declared that the Rio Grande is not navigable in New Mexico; and the Territorial courts have declared that the company's works would not diminish the navigable capacity of the Rio Grande in the Gulf section below Rio Grande City. The Supreme Court of the United States practically upheld the Territorial courts on all points of law, and only referred the case back to the lower court for inquiry as to the question of fact, viz, would the company's works "substantially diminish the navigability" of the Rio Grande "within the limits of present navigability" (i. e., the Gulf section between Rio Grande City and Brownsville, about 1,000 miles below)?

After devoting twelve days (in December, 1899) to the hearing of evidence as to the question of fact the court found that "the company's works will not substantially diminish the navigability of the Rio Grande within the limits of present navigability;" and subse

EL PAS- -9

quently the Territorial supreme court upheld the findings of the court of inquiry on all points. But after months of delay the AttorneyGeneral has ordered an appeal to the Federal Supreme Court notwithstanding the fact that the evidence submitted in this case was overwhelmingly in the company's favor and opposed to the Government's contention, and that the people of New Mexico have repeatedly, in their legislature, in various political conventions, and by formal petition, urged that the Government drop the proceedings that for over four years have deprived the farmers of the Rio Grande Valley of water for the irrigation of their lands-proceedings that have kept a large amount of capital from being invested in the Territory and that have convinced friendly investors abroad that the honesty and good faith of the United States Government can not be relied upon by foreign investors. It is true that the Attorney-General has upon several occasions offered to compromise and drop the case, but as the only question at issue is the alleged effect of the company's works upon the navigable capacity of the river about 1,000 miles below, it is obvious that the Attorney-General, in proposing a compromise, is acting not in the interests of navigation, but in the interest of the proposed international dam project, notwithstanding that he affects to have no interest whatever in bill H. R. 9710.

Maj. O. H. Ernst (report to Secretary of War, 1889), who, with other engineers, was employed under the direction of the Government for the special purpose of reporting upon the navigability of the Rio Grande, stated:

ment.

*

The stream is not navigable, and it can not be made so by open channel improve* * Certainly there is no public interest which would justify the expenditure of the many millions of dollars which such an improvement would involve. The irrigation of the valley is a matter in which the inhabitants are most deeply interested, while the possible navigation of the river receives little or no attention from them. In my judgment the stream is not worthy of improvement by the General Government.

Gerald Bagnell, assistant engineer, reported to the Secretary of War, 1889:

I consider the construction, not only of an open river channel, but of any navigable channel, to be impracticable. During the greatest part of the year, when the river is low, the discharge would be insufficient to supply any navigable channel, except, perhaps, a narrow canal with locks, the construction of which, on a foundation of sand in places 46 feet deep, would be financially, if not physically, impracticable.

Chief Justice Thomas Smith (supreme court of New Mexico, July term, 1897, No. 753) stated:

dam

*

It appears from affidavits and reports presented in support of the bill in this case, that the objection now raised to the construction of the defendant's dam (the Elephant Butte Dam) rose out of the proposed construction of an international dam and reservoir at El Paso. * * * Investigation of the feasibility of such an international * * evincing the deliberate intention of the Government, by its political department, to take measures, not for the purpose of improving the navigability of the river, but of permanently obstructing it * and that the object of this proceeding is not to secure a public benefit from the navigation of the Rio Grande, but rather, under the guise of a question of navigability of the stream, to obtain an adjudication of the interests of rival irrigation schemes in aid of one locality against another.

* *

In a letter dated January 4, 1901 (replying to a letter addressed to the Attorney-General by Mr. John L. Campbell, C. E., f El Paso, Tex., dated December 26 last, relating to the subject involved in the

suit of the United States v. The Rio Grande Dam and Irrigation Company), the Attorney-General says:

Some of the suggestions you make are so entirely reasonable that I am moved to express my regret that the management of the case on the part of the company has not been entirely in your hands. I recognize the truth of what you say with reference to the storage of torrential waters of the stream.

This is interesting, as it implies that if "the management of the case on the part of the company" had been in Mr. Campbell's hands the company's interests would have been less ably defended, and the decisions of the courts as to the effect of the company's works upon the navigability of the Rio Grande might have been different. But the Attorney-General does Mr. Campbell (and for that matter the judges of the several courts) less than justice, for such inference can not be said to be warranted by Mr. Campbell's letter of the 26th of December last to the Attorney-General, in which letter he makes certain specific references to the effect of the storage of torrential waters, and calls the Attorney-General's attention to the fact that the United States Government has established a notable precedent by conserving the headwaters of the Mississippi for the express purpose of improving the low-water navigation of that river.

Parenthetically, it may be stated that although the volume of water conserved on the Upper Mississippi is many times the volume that it is proposed to conserve at Elephant Butte, the effect of the flow of the Mississippi is only perceptible for between 300 and 400 miles. (Vide Report of Capt. Hiram M. Chittenden, Corps of United States Engineers, Document 141, second session Fifty-fifth Congress).

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The Attorney-General says that he "recognizes the truth" of Mr. Campbell's statements with reference to the storage of the torrential waters" of the Rio Grande, and declares that he believes now, and has always believed, that a plan of cooperation between the United States and the owners of the dams and reservo could be devised by which the navigation of the stream would not b injuriously affected, and the flow of the water in the river made more continuous than it now is." Mr. Griggs says that-

Before this case went to trial in New Mexico the last time, I (Mr. Griggs) proposed, through my representative, to come to an agreement (with the Rio Grande Dam and Irrigation Company) by which they should be allowed to construct their dam, the discharge of water to be regulated, however, by some commissioner or other third person, so that it should be let out of the reservoir into the stream below in a methodical and reasonable way, beneficial to the stream and not injurious to the company's project. * I still think that this is the true basis of the solution of this whole question. So far as my administration of this department is concerned, it has not maintained this suit through any sympathy whatever with the scheme for an international dam, but purely upon the legal principle argued by me in the Supreme Court in this case affecting the right of the United States to have the navigation of the stream unimpaired.

* *
* * *

The only possible construction to place upon this specific statement by the Attorney-General is that, despite the evidence submitted in this case and despite the findings of the courts, the Attorney-General still persists in maintaining that the Rio Grande is navigable below Elephant Butte, in New Mexico, and below El Paso, and that the impounding of the flood waters of the river at Elephant Butte would substantially diminish such navigable capacity of the stream. According to his own statement, the Attorney-General desires to enter into a compromise solely with a view to protecting navigation, for he says

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that he has not maintained the suit (against the Rio Grande Dam and Irrigation Company) through any sympathy whatever with the scheme for an international dam." Certainly it would have been more to the point if the Attorney-General had definitely formulated his plan for a compromise. With whom would the company enter into a compromise? Not with the Attorney-General, because the Attorney-General has no power or authority whatsoever to enter into any arrangement on behalf of the United States Government with the company. The Attorney-General has power to drop the case by accepting the findings of the Territorial courts as final, or he can drag the case on and more or less indefinitely defer a final vindication of the company's rights by appealing to the Federal Supreme Court against the findings of the Territorial courts as to the question of fact; and that is all he has power to do.

It is obvious that the appeal ordered by the Attorney-General to the Federal Supreme Court can serve no proper end, for not a scintilla of trustworthy evidence has been submitted by the Department of Justice in support of the Attorney-General's contention. And I desire to take this opportunity to place on record my earnest protest against the manner in which this case has been dragged on from year to year, not in the interests of navigation, but manifestly in the interest of the international dam project. It is a monstrous thing that the Treasury of the Government, the engineers of the International Boundary Commission, and the Department of Justice should, in the interests of the international dam project, be used to crush a legitimate private enterprise.

The unwarrantable attacks upon the Rio Grande Dam and Irrigation Company, and upon the rights of the English capitalists who have invested in the securities of that company, can not but tend to convince the world at large that the current suspicion abroad of the honesty and good faith of the United States officials is justified by facts; and I would respectfully submit that bill H. R. 9710, which proposes to legislate the Elephant Butte Dam case out of the courts, is an improper bill, and that it would be highly improper for Congress to defeat the end of justice in the manner contemplated by the promoters of the international dam project.

I am, sir, your obedient, etc.,

NATHAN E. BOYD.

P. S.-As bearing upon the Elephant Butte Dam case and bill H. R. 9710, I inclose for your consideration

1. Copy of Governor Otero's argument before the Senate Committee on Foreign Relations.

2. Copy of the Hon. B. S. Rodey's letter of January 5, 1901, to the Hon. H. D. Money, United States Senator.

3. Copy of the Hon. H. D. Money's letter of January 15, 1901, to Governor Otero. 4. Copy of letter from the faculty and trustees of the New Mexico College of Agriculture and Mechanic Arts, dated January 5, 1901, to the Secretary of Agriculture. 5. Copy of resolution passed by the Commercial Club of Albuquerque, N. Mex., on January 26, 1901.

6. Copies of Dr. Nathan E. Boyd's letters of July 24 and December 21, 1900, to the Secretary of State.

7. Copy of letter dated August 8, 1900, from the Hon. A. A. Adee, Assistant Secretary of State, in reply to Dr. Boyd's letter of the 24th July, to the Secretary of State.

8. Copy of Dr. Boyd's Appeal to the People of New Mexico, contributed to the Santa Fe New Mexican and other Territorial papers.

9. Copy of Dr. Nathan E. Boyd's memorial to the United States Senate, presented by Senator Carter on January 22, 1901; referred to the Committee on Foreign Relations and ordered to be printed. 10. Copy of Prof. Robert T. Hill's article in the Century Magazine, January, 1901.

NEW MEXICO PROTESTS AGAINST BILL S. 3794.-GOVERNOR OTERO'S ARGUMENT BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS.

Mr. Chairman and Gentlemen of the Committee: I appear before you representing the 200,000 people in the Territory of New Mexico, as well as the material interests of that great Territory which are vitally affected by Senate bill No. 3794, now under consideration. This bill is identically the same as that introduced in the House by Mr. Stephens, of Texas, and against the passage of which the people of New Mexico, in their their legislature, and in various political conventions, have entered their earnest protests. The same bill now appears, introduced by the honorable Senator from the State of Texas, and has been favorably reported by the Committee on Foreign Relations of that body, without any consultation with the people of New Mexico, or any attempt to get their views upon the subject, and indeed without their knowledge, until the report of the committee was made public on the 19th of last month.

New Mexico has for fifty years been the ward of this Government, and supposed to be by treaty stipulations and the relations existing between guardians and wards entitled to the fostering care of this great nation. But this bill, introduced in the Senate and recommended for passage, is calculated to deprive the Territory of its chief source of income and its main dependence for existence. Irrigation has been practiced in that Territory successfully for the last three hundred years. It was the first part of North America to be irrigated, and while the methods were crude, and the results most of them small, in the aggregate they have made the valley of the Rio Grande a succession of vineyards, orchards, and alfalfa fields for more than 200 miles along its borders.

This committee will observe that its report recommends in the fifth paragraph, under the head of recommendations, found at page 5 of the report which is before you, that in the proposed treaty for the final settlement of all questions regarding the distribution of the waters of the Rio Grande some way shall be provided with which to prevent the construction of any large reservoirs on the Rio Grande in the Territory of New Mexico, or, in lieu thereof, if that be impracticable, restrain any such reservoirs hereafter constructed from the use of any waters to which the citizens of the El Paso Valley, either in Mexico or the United States, have the right by prior appropriations.

It will be observed in this report that nothing is said in regard to the construction of such reservoirs in the State of Colorado, although in a previous portion of the report it is shown that a much larger amount of water is taken by that State than by the Territory of New Mexico. Thus it is proposed to absolutely prohibit any irrigation enterprises in the Territory of New Mexico at a time when this Government is being urged by the representatives from Colorado to appropriate $12,000,000 for the construction of reservoirs in certain States named, this bill not including the Territory of New Mexico. With New Mexico a State, as of right it ought to be, no such proposition as this would for an instant be entertained by anyone, and I most respectfully submit that our very helplessness in the national councils should be a most potent argument for the National Congress to see that her present rights are not infringed upon or curtailed for the benefit or to the advantage of the great State of Texas or our sister Republic on the south.

Under the treaty of Guadalupe Hidalgo our citizens were forever guaranteed their rights of property as they existed at that time, May 30, 1848, and to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution.

The report of the joint commission, which is made a part of your report on this bill, was made upon a wrongful assumption of the facts. After that date the United States instituted a suit against the Rio Grande Dam and Irrigation Company to restrain it from constructing or maintaining a dam across the Rio Grande at a point about 100 miles north of the city of El Paso, Tex., where the boundary line between the United States and Mexico is the center of that stream. The defendants demurred to the bill; the demurrer was sustained in the district court; the United States took