Full opinion text
HANNAY, District Judge. This law suit is brought by the plaintiffs, who allege that they are resident citizens of the Republic of Mexico, to recover title to property located in the south half of Section 44 of the Paul Subdivision of the Robert Driscoll Ranch, in Nueces County, Texas. The land in question lies between the Nueces River and the Rio Grande and was, until at least 1836, in the Mexican department, or state, of Tamaulipas. For cause of action plaintiffs rely on land grants issued by the Spanish Government in 1806, through which they claim as heirs of one Pedro Ygnacio Garcia, who, they assert, became the owner of said lands in 1811. The basis of plaintiffs’ assertion of title is under Article VIII of the Treaty of Guadalupe Hidalgo, 9 Stat. 929, which was signed at the place from whence it gets its name, located about four miles from the City of Mexico. Article VIII of said Treaty of Guadalupe Hidalgo reads as follows : “In said territories, property of every kind, now belonging to Mexicans, not established there, shall be inviolably respected. The present owners, the heirs of those and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it, guarantees equally ample, as if same belonged to citizens of the United States.” This Treaty was proclaimed on July 4, 1848. (The italics in the above extract, as well as elsewhere in this opinion, whether in a quotation or not, is made by this Court in the interest of clarity and emphasis.) Plaintiffs strongly press upon the court their contention that “in said territories, property of every kind, now belonging to Mexicans, not established there, shall be inviolably respected,” means that the land here in dispute is still subject to the laws of Mexico and is not now and never has been subject to the laws of Texas. It is further plaintiffs’ contention that the Constitution of the United States is superior to any laws of Texas because Texas became subject to it when she became one of the United States. The Constitution provides : Art. VI, Cl. 2, Supreme Law. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” And, therefore, that no rule of prescription, limitation or laches operates against them. Plaintiffs seek judgment for title and possession of the land and premises above mentioned, for general relief, and in addition thereto, have filed a motion for summary judgment against the defendants herein, which motion they have supplemented by documentary evidence. The defendants have answered and, generally speaking, urge the following defenses : 1. That the land in question is not “within territory previously belonging to Mexico” or “ceded territory” as contemplated by the Treaty of Guadalupe Hidalgo. 2. That, assuming the treaty does apply, ■then, based on the second sentence in the above quoted part of Article VIII, there should not be any discrimination in favor of Mexican citizens as against citizens of Texas or citizens of the United States, and that this suit is without merit. (Whenever the word “treaty” is used in this opinion, the Guadalupe Hidalgo Treaty is referred to.) 3. That the land in question is subject to the laws of Texas, particularly with reference to the statutes of limitations of three, five, ten and twenty-five years, and Texas land laws applicable to abandonment of title and presumptions of grant, under which laws defendants assert they have full .and perfect title. Defendants have asked for general relief, that their title be quieted in them, and in .addition thereto, have made a motion for summary judgment, which motion is supported by affidavits on file herein. Inasmuch as this is one of a number of -similar lawsuits filed by attorneys representing these plaintiffs, on behalf of other .alleged resident citizens of Mexico, and be•cause the effect of the decision herein is so important to the owners of the land lying between the Rio Grande and the Nueces River, which area is so vast and valuable, it is deemed well to discuss briefly the historical facts relating to this law suit. On March 2, 1836, the Texas Declaration of Independence was declared at Washington on the Brazos, by 59 delegates. Previously thereto, and at that time, Texas and Coahuila were joined in a single state, or department. The only references to the State of Coahuila are as follows: “It has sacrificed our welfare to the State of Coahuila, by which our interests have been continually depressed through a jealous and partial course of legislation carried on at a far distant seat of government, by a hostile majority, in an unknown tongue,” and “It has dissolved by force of arms, the State Congress of Coahuila and Texas, and obliged our representatives to fly for their lives from the seat of government; thus depriving us of the fundamental political right of representation.” The last paragraph reads as follows: “We, therefore, the delegates, with plenary powers, of the people of Texas, in solemn convention assembled, appealing to a candid world for the necessities of our condition, do hereby resolve and declare that our political connection with the Mexican nation has forever ended; and that the people of Texas do now constitute a free, sovereign and independent republic, and are fully invested with all the rights and attributes which properly belong to independent nations; and, conscious of the rectitude of our intentions, we fearlessly and confidently commit the issue of the decision to the Supreme Arbiter of the destinies of nations.” It is thus seen that this declaration was made by the people of Texas and, except as above mentioned, that neither Coahuila nor Tamaulipas, called Nuevo Santander, were not mentioned as being departments, or states, included in the Declaration of Texas. The name “Texas” was adopted by the delegates, mostly Anglo-Americans, included among whom was Sam Houston, who signed the declaration on the anniversary of his birthday, to-wit: March 2, 1836. On April 21, 1836, the Battle of San Ja-cinto was won by the Texas army under General Sam Houston. This battle, known as the sixteenth decisive battle in the history of the world, resulted in the almost total annihilation of the Mexican army and in the capture of the Mexican President, Santa Anna, and some 800 of his soldiers. At the time of the capture of Santa Anna, the following conversation, which is significant when considered in connection with the Treaty of Velasco and the Secret Agreement, of even date, took place: “After embracing Almonte and recovering entirely from his embarrassment, Santa Anna, with the air of one born to command, rose and said to General Houston: “That man may consider himself born to no common destiny who has captured the Napoleon of the West; and it now remains for him to be generous to the vanquished. “Houston: You should have remembered that at the Alamo. “Santa Anna: You must be aware that I was justified in my course by the usages of war. I had summoned a surrender, and they had refused; the place was then taken by storm, and the usages of war justified the slaughter of the vanquished. “Houston: That was the case once, but it is now obsolete. Such usages among civilized nations have yielded to the influence of humanity. “Santa Anna: However, this may be, I was acting mider the orders of my government. “Houston: Why, you are the government of Mexico. “Santa Anna: I have orders in my possession commanding me to so act. “Houston: A dictator, sir, has no superior.” Shortly thereafter, on May 14, 1836, the Treaty of Velasco was entered into by Santa Anna, in his character as President of the Mexican Republic and clothed with the supreme power, and President David G. Burnet, of Texas, and his cabinet, by which the independence of Texas was acknowledged. This treaty reads, in part, as follows: “Articles of Agreement entered into between his Excellency David G. Burnet, President of the Republic of Texas, of the one part, and his Excellency, General Lopez de Santa Anna, President-General-in-Chief of the Mexican Army, of the other part, * * * “Art. 3. The Mexican troops will evacuate the territory of Texas, passing to the other side of the Rio Grande del Norte.” At the same time a secret agreement was made with Santa Anna, Article 4 of which reads: “Art. 4. A treaty of commerce, amity and limits will be established between Mexico and Texas, the territory of the latter not to extend beyond the Rio Bravo del Norte.” “Rio Grande del Norte” or “Rio Bravo del Norte” as used in the Treaty of Velas-co and the secret agreement, and elsewhere in this opinion, mean, of course, the Rio Grande. After the execution of this treaty and the secret agreement, and as a reward for his signing same, on the same day (although there was a great popular demand in Texas for the return of Santa Anna to the scene of the Goliad massacre, there to be executed), Santa Anna was permitted to leave Texas and return to Mexico^ The Treaty of Velasco was likewise approved by other Mexican general officers and by its Secretary of War, although it was not ratified, but expressly rejected, by the Mexican Congress. A copy of these agreements were forwarded to the Mexican General, Filisola, then at the head of about 5,000 Mexican troops, and he was permitted by the Texas Republic to retire beyond the Rio Grande without molestation, to thus save his army from destruction. It is argued that Santa Anna, having signed the above mentioned treaties while he was-a prisoner of war, was thus under duress and, therefore, the treaty was not binding on his government. However, the conversation with General Houston, above quoted, immediately after his (Santa Annas’) capture, throws strong light on his power and authority to so represent Mexico. Life and Select Literary Remains of Sam Houston of Texas, Crane, 101. This, however, was not the first assertion by citizens of Texas that the Rio Grande was the boundary between Texas and Mexico.. The first record of any such claim is contained in a report of Edward Burleson, Commander in Chief of the Volunteer Army of Texas, to Henry Smith, Provisional Governor of Texas, from Bexar, in December, 1835, wherein General Cos, a Mexican officer, after the battle near the Alamo, in which battle Ben R. Milam lost his life, agreed in writing to retire with his officers and men beyond the Rio Grande. Such agreement was signed on December 11, 1835, by General Martin P. de Cos on behalf of Mexico and Edward Burleson, Commander in Chief of the Volunteer Army of Texas. Readings from Texas-History, Barker. On December 19, 1836, the first Congress of Texas passed a law which reads as follows : “To define the boundaries of the Republic of Texas. “Sec. 1. Be it enacted by the senate and house of representatives of the Republic of Texas, in Congress assembled, That from and after the passage of this act, the civil and political jurisdiction of this republic be, and is hereby declared to extend to the following boundaries, to-wit: “Beginning at the mouth of the Sabine River, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande, then up the principal stream of said river to its source, thence due north to the forty-second degree of north latitude, thence along the boundary line as defined in the treaty between the United States and Spain, to the beginning; and that the president be, and is hereby authorized and required to open negotiations with the government of the United States of America, as soon as in his opinion the public interest requires it, to ascertain and define the boundary line as agreed upon in said treaty.” This identical description is upon the attached map marked Exhibit A: This act of Texas has never been repealed, and at the time that Texas was finally admitted to the United States, to-wit: December 29, 1845, a new constitution was adopted which expressly provided for the continuation of such prior enactment in full force. Almost immediately thereafter, on December 31, 1845, only two days after Texas was admitted as a state, the Congress of the United States passed a law establishing a collection district in the State of Texas. Corpus Christi, west of the Nue-ces, was made a port of delivery, for which a surveyor was afterwards appointed. It is thus contended that the territories claimed by Texas, particularly as between the Republic of Mexico and the Republic of Texas, were approved and adopted by the United States at the time that Texas became a state. This matter will be further discussed in this opinion. From after the battle of San Jacinto, in 1836, until the Treaty of Guadalupe Hidal-go, customs houses, post offices and post roads, as well as election precincts, were established around the town of Corpus Christi. The County of San Patricio was laid out, which reached to the Rio Grande. Members of the Texas Congress were elected who resided on the right bank of the Nueces, and that part of Texas was represented in the Congress and in the Convention by which the resolution of an nexation to the United States was accepted. Texas sent out boats to watch the coast and reconnoiter the Laguna Madre and the Brazos. In the fall of 1838, when their ports were blockaded by the French Fleet, the Mexicans secretly landed a cargo of flour at a place about ten miles west of the present town of Corpus Christi, for the purpose of conveying it across the country to Mexico. The vessel was seized and the flour destroyed under orders of the Collector of the District, for violating the revenue laws of Texas. It is from this incident that “Flour Bluffs,” now the site of a great United States naval base, received its name. The Republic of the Rio Grande was proclaimed, which had for its purpose the forming of a separate republic between the Nueces River and the Rio Grande, having for its capítol, Laredo. This venture ended disastrously in the year 1842. In 1837 the United States recognized Texas as a separate republic. In this connection, Texas furnished the United States with a description of the boundaries of Texas, taken almost literally from the Texas Act of December 19, 1836. Shortly thereafter, France, Holland and Belgium likewise recognized Texas as a republic. During the administration of the first President of the Texas Republic, Sam Houston, an attempt was made to secure the admission of Texas as a state in the Union. This attempt was unsuccessful, but another attempt was made in 1844, and negotiations continued until the final consummation, as hereinafter described more in detail. During all of this time the claim of Mexico was to the entire length and breadth of Texas, and not to any lesser portion thereof. During the negotiations of 1844, and in compliance with the call of the Senate, pending the attempt to secure the admission of Texas into the Union,. President Tyler sent to the United States Senate a map of the country proposed to be secured as Texas, and upon that map is-shown “Texas and the Countries Adjacent. Compiled in the Bureau of the Corps of Topographical Engineers. From the Best Authorities. For the State Department. Under the Direction of Colonel J. J. Abertr Chief of the Corps, by W. H. Emory, 1st Lieut. T. E. War Department, 1844.” A photostatic copy of this map is hereto attached, marked Exhibit A, and made a part hereof. It accepts as correct the boundaries as defined by an Act of the Texas Congress, approved December 19, 1836, a copy of which Act has been heretofore set out. This map shows the Rio Grande as the boundary line between the Republic of Mexico and the Republic of Texas. It was on this map that the negotiations were had which resulted in the annexation of Texas. See also the certificate accompanying such map, which is marked Exhibit B, and made a part hereof. After the election of President James K. Polk, but before he had taken office, the Congress of the United States passed, and President Tyler approved, on the 1st day of March, 1845, a resolution which set forth the basis upon which Texas might be admitted as one of the states of the Union, which reads in part as follows; “Joint Resolution for annexing Texas to the United States. “Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress doth consent that the territory properly included within, and rightfully belonging to the Republic of Texas, may be erected into a new State, to be called the State of Texas, with a republican form of government, to be adopted by the people of said republic, by deputies-in convention assembled, with the consent of the existing government, in order that the same may be admitted as one of the States of this Union.” 5 Stat. 797. The second paragraph of such resolution, among other things, provides for the settlement of all questions of boundary that may arise with other governments, and far the retention by Texas of all vacant and unappropriated lands lying within its limits. This was a simple resolution, not a treaty, and it passed the United States Senate by a vote of 27 to 25, largely through the efforts of James Buchanan. It passed the House of Representatives by a much larger vote. It is interesting to here note that the annexation agreement had this to say with reference to questions of boundary: “ * * * all questions of boundaries that may arise with other governments * * * shall be transmitted to the President of the United States, to be laid before Congress for its final action, on or before the first day of January, one thousand eight hundred and forty-six.” The map attached hereto as Exhibit A was included in Senate Document No. 341, 1st Session, 28th Congress. Another matter worthy of note with reference to this joint resolution was that the only ceding done by Texas to the United States was in the second paragraph, which reads, in part, as follows: “ * * * After ceding to the United States, all public edifices, fortifications, barracks, ports and harbors, navy and navy-yards, docks, magazines, arms, armaments, and all other property and means pertaining to the public defence belonging to said Republic of Texas * * The balance of such property rightfully belonging to the Republic of Texas was reserved by the new state. Also, as a part of the obligation of the United States, pending approval or rejection, as the case may have been, of the annexation agreement, the United States was obligated to defend with its armies the boundaries claimed by Texas. At the time of such negotiations with Texas, Anson Jones was the President of the Republic of Texas, and' he transmitted to the convention called by him the joint resolution for annexing Texas, which had been approved by the United States, as above mentioned, on the 1st day of March, 1845. This resolution was approved by the Convention of Texas on July 4, 1845, and as a part of the Texas Convention, a constitution was framed and adopted. It contained a description of Texas’ boundaries, which made the boundary between Mexico and Texas the Rio Grande. Congress approved’ the constitution containing such declaration of boundary on December 29, 1845, and soon thereafter, to-wit: on February 19, 1846, President Anson Jones relinquished the executive office to Governor J. Pinckney Henderson, with the statement: “The Republic of Texas is no more.” Here it is well to consider the attitude of the American statesmen concerning the annexation of Texas. The Whig Party was opposed to the annexation because, as they alleged, it would be an act of bad faith toward Mexico; because the debt of Texas, said to be more than 10 million dollars, was to be assumed by the United States; and because they were opposed to the extension or increase of slave territory. The Democratic Party, generally, favored annexation. Mr. Van Burén and Mr. Clay very nearly agreed in these opinions. Both expressed themselves favorably to the acquisition of Texas at some future time if the American people desired it; provided,, however, the consent of Mexico could be obtained, or, at least, that efforts be made to procure it. James K. Polk of Tennessee came out strongly for the immediate annexation of Texas, received the nomination of the Democratic Party for the Presidency, and was elected over his Whig opponent, Mr. Clay. The issue in that campaign was clear: “Polk and Texas” — “Clay and no Texas.” President Polk said' in his inaugural address : “The republic of Texas has made known her desire to come into our Union, to form a part of our confederacy, and to enjoy with us the blessing of liberty secured and guaranteed by our constitution. Texas was once a part of our country — was unwisely ceded away to a foreign power — is now independent, and possesses an undoubted right to dispose of a part or the whole of her territory, and to merge her sovereignty as a separate and independent State, in ours. I congratulate my country that, by an act of the last Congress of the United States, the assent of this government has been given to the reunion; and it only remains for the two countries to agree upon the terms, to consummate an obj ect so important to both. "I regard the question of annexation as belonging exclusively to the United States and Texas. They are independent powers, competent to contract; and foreign nations have no right to interfere with them, or to take exceptions to their reunion.” By the statement “Texas was once a part of our own country,” President Polk alluded to the claim made by every United States President from Jefferson down to himself, that Texas was a part of the Louisiana Purchase of 1803. This claim, however, was relinquished by the United States in the Florida Treaty with Spain in 1819. However, it is interesting to note in this connection that two members of Congress, one a future president of the United States, to-wit: Abraham Lincoln, and another, a former president of the United States, John Quincy Adams, both then members of Congress, were strongly opposed to the annexation of Texas, giving as their reasons the fact that they believed it would cause war with Mexico, to which they were strongly opposed. It is also interesting to note that two well known American statesmen, Henry Qay and Daniel Webster, each resigned as Secretary of State shortly before the annexation of Texas, each giving as his reason therefor the fact that he believed the annexation of Texas would lead to an unjust war with Mexico. However, when the war did come, each of these gentlemen had a son, namely, Henry Clay, Jr., and Edward Webster, who fought for their country and died in Mexico. Upon the passage of the Joint Resolution on March 1, 1845, above referred to, the Mexican Minister at Washington, General Juan Almonte, under date of March 6, 1845, protested in the name of his government, and requested his passports. In his letter to John C. Calhoun, Secretary of State of the United States of America, he said, among other things, that “Mexico intended to recover the Province of Texas, of which she now holds herself unjustly despoiled, and that she will maintain and uphold those rights at all times by every means which she has in her power.” In his first annual message to Congress, delivered on December 1, 1845, President Polk communicated to the two houses of Congress, as follows: “The moment the terms of annexation, offered by the United States, were accepted by Texas, the latter became so far a part of our own country, as to make it our duty to afford such protection and defense. I therefore deemed it proper, as a precautionary measure, to order a strong squadron to the coast of Mexico, and to concentrate an efficient military force on the western frontier of Texas. Our army was ordered to take position in the country between the Nueces and the Del Norte, and to repel any invasion of the Texan territory which might be attempted by the Mexican forces. * * ” From the above it is clearly apparent that the President of the United States was strongly of the opinion that the Rio Grande constituted the boundary line between Texas and Mexico at the time of the agreement of annexation. President Anson Jones, who had served as Secretary of State just previous to being elected president of the Texas Republic, also had no doubt as to what constituted such boundary. He wrote, shortly after the annexation, as follows: “There was no subject more explicitly agreed upon, understood and settled between Major Donelson and myself, in 1845, than that the Rio Grande, from its mouth to its source, was the true and rightful boundary of Texas (as defined in the Act of 1836), and that the United States would never agree to any other adjustment of the boundary with Mexico than the one defined by said act. On the part of the United States that boundary was fully recognized; no other one was ever dreamed of.” History of Texas, L. W. Newton and H. P. Gambrell, page 244. Then, too, the first United States Senators from Texas, to-wit, Sam Houston and Thomas J. Rusk, both former generals in the army of the Republic of Texas, had similar opinions. Rusk wrote “Texas has made her mark,” and asserted that her claim was to the whole territory lying on the left bank of the Rio Grande or Rio Bravo del Norte. Houston, at the time of the consideration of the declaration of war between the United States and Mexico, made a short documented speech in the United States Senate in which he apparently convinced those who had formerly opposed Texas’ annexation, of the righteousness of Texas’ claim to the Rio Grande as its correct boundary. As before stated, the claim of Mexico at that time was not to any lesser portion of Texas, but to the entire area formerly a part of Mexico. The Mexican Government was not claiming merely the area between the Rio Grande and Nueces River, but all of Texas. It was not a question of boundary to a portion of Texas, but title to the entire state. With reference to the status of the situation between Texas and Mexico after the Battle of San Jacinto, and until December, 1843, the following extract from the message of President Tyler to the Congress of the United States is particularly apt: “The war which has existed for so long a time between Mexico and Texas has since the battle of San Jacinto consisted for the most part of predatory incursions, which, while they have been attended with much suffering to individuals and have kept the borders of the two countries in a state of constant alarm, have failed to approach any definite result. Mexico has fitted out no formidable armament by land or sea for the subjugation of Texas. Eight years have now elapsed since Texas declared her independence of Mexico, and during that time she has been recognized as a sovereign power by several of the principal civilized states. Mexico, nevertheless, perseveres in her plans of reconquest, and refuses to recognize her independence. The predatory incursions to which I have alluded have been attended in one instance with the breaking up of courts of justice, by the seizing upon the persons of the judges, jury, and officers of the court and dragging them along with unarmed, and therefore non-combatant, citizens into a cruel and oppressive bondage, thus leaving crime to go unpunished and immorality to pass unreproved.” Some of these predatory incursions referred to in President Tyler’s message had gone far east of the Nueces River. When, after the annexation, General Zachary Taylor moved with military forces, he promptly went to, but not south of, the Rio Grande. No protest was made by the Mexican Government when the United States army crossed the Nueces River. It was only after the Mexican army had crossed north of the Rio Grande to engage the army of General Taylor in combat, and after the Mexican President had declared war upon the United States, that the United States recognized that a state of war existed, and General Taylor moved south of the Rio Grande. General Taylor began to move his army from Corpus Christi to the Rio Grande on March 8, 1846, under orders of the United States War Department. He arrived opposite Matamoros on March 28, 1846, and there entrenched. A demand was then made by the Mexican General that he (Taylor) remove his army. This demand was rejected. President Paretes of Mexico, on April 23, 1846, directed that a “defensive war” against the United States be begun. The Mexican General, Arista, moved across the Rio Grande, was defeated on May 8th at Palo Alto, on the next day at Resaca de la Palma, and on May 18, 1846, Taylor took possession of Matamoros, on the south side of the Rio Grande. On May 13, 1846, President Polk signed a resolution of the American Congress declaring a state of war to exist between the United States and Mexico. Wortham, Vol. 4, pages 213, 214. Or stated in other and clearer language, as set forth in Wooten’s History of Texas, Vol. 1, page 688: “President Polk, in his second annual message to Congress, December 8, 1846, in an unusually able summary of the causes which led to the war with Mexico, among other things, says: ‘The annexation of Texas to the United States constituted no just cause of offense to Mexico,’ and sustains his position by an unanswerable array of historical facts. “Referring to the assertion which the opponents of Texas Independence and of annexation made, that the claim of Texas to the Rio Grande instead of the Nueces, as her western boundary, was the cause of the war, he says that as early as December 19, 1836, the Republic of Texas passed an Act defining the boundaries of Texas and laid down the Rio Grande to be her western boundary from its mouth to its source, and that during all the period between the adoption of the Constitution of the Republic, March 17, 1836, to annexation, December 29, 1845, she claimed and exercised exclusive sovereignty and jurisdiction over the country between the Nueces and Rio Grande; organized and defined limits of counties extending to the Rio Grande; established custom houses and collected duties and established post offices between the rivers; established a land district in the same limits; courts of justice, and, in short, exercised full sovereignty over the country between the Nueces and the Rio Grande, from the adoption of the Constitution down to annexation, the same as over other parts of Texas. “President Polk further says in the same message: ‘But Mexico herself has never placed the war which she has waged upon the ground that our army occupied the intermediate territory between the Nueces and the Rio Grande. * * *’ Her avowed purpose in commencing the war was to reconquer Texas and to restore Mexican authority over the whole territory —not to the Nueces but to the Sabine.” This Court recognizes that then, as now, there were and are many people who contend that the entry of the United States into this war was unjust. Inasmuch as the Constitution of the United States, Art. I, Section VIII, under Legislative Department, provides: “The Congress shall have Power * * * To declare War, * * *” this power is exclusively given to that branch of the Federal Government, and neither the Executive nor Judiciary Department has any right to challenge or revise such legislative action. It therefore follows that such legislative action was conclusive on that point. This war continued for some 18 months, during which times Generals Winfield Scott and Zachary Taylor were universally victorious. They captured a great portion of Mexico, including the Palacio of Mexico. On February 2, 1848, at Guadalupe Hidalgo, a treaty with Mexican Commissioners was concluded by Mr. Trist, representing the United States. Shortly after annexation, the first legislature of the new State of Texas again made quite definite what area Texas was claiming, and quoted below is a portion of the Joint Resolution, dated April 29, 1846: “Declaring the exclusive right of the State of Texas to the jurisdiction over the soil included within the limits thereof: “Section No. 1. Be it resolved by the Legislature of the State of Texas, That the exclusive right to the jurisdiction over the soil included in the limits of the late Republic of Texas was acquired by the valor of the people thereof; and was by them vested in the government of the said Republic, that such exclusive right is now invested in and belongs to the State, excepting such jurisdiction as is vested in the United States, by the constitution of the United States, and by the joint resolution of annexation, subject to such regulations and control as the government thereof may deem expedient to adopt. * * *” This joint resolution was, of course, passed before the Treaty of Guadalupe Hidalgo was entered into. In fact, everything which has been discussed up to this point took place before the Treaty of Guadalupe Hidalgo, and to say that any part of the present State of Texas was regarded as “territory previously belonging to Mexico” does not conform to the true facts. It has been definitely stated by the Supreme Court of the United States on at least two occasions that the Treaty of Guadalupe Hidalgo does not have reference and does not apply to any land located within the State of Texas. In McKinney v. Saviego, 18 How. 235, 240, 15 L.Ed. 365, it is stated: “The last question remaining for consideration arises on the 8th section of the treaty with the republic of Mexico on the 2d February, 1848, (9 Stats, at Large, 923) called the treaty of Guadalupe Hidalgo. The first clause of that article provides ‘for the Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United States.’ The second clause provides for those who shall prefer to remain in the said territories, and they are authorized to retain the title of Mexican citizens or acquire the rights of citizens of the United States. The third clause prescribes, ‘that in the said territories property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.’ To what territories did the high contracting parties refer to in this article? We think it clear that they did not refer to any portion of the acknowledged limits of Texas. * * *” In the case of Elisha Basse v. City of Brownsville, 154 U.S. 610, 14 S.Ct. 1195, 22 L.Ed. 420, it is stated: “This writ of error is dismissed for the want of jurisdiction. In McKinney v. Saviego, 18 How. [235], 240 [15 L.Ed. 365], it was decided that the treaty of Guadaloupe Hidalgo had no relation to property included within the state of Texas. * * *” Chief Justice Waite delivered the opinion of the court. By authority of the above cases it is shown that the Treaty of Guadalupe Hidalgo does not apply to Texas, and that therefore the Texas law should be applied in considering the rights of the litigants herein. The attitude of Texas towards titles to land between the Nueces and Rio Grande, which had their origin in grants from either Spain or Mexico, whether north or south of the Nueces, is impressively shown in the opinion so ably written by Judge Nelson Phillips in the case of Kenedy Pasture Co. v. State, 111 Tex. 200, 231 S.W. 683, 689, writ of certiorari denied May 18, 1921, 258 U.S. 617, 42 S. Ct. 271, 66 L.Ed. 793, from which we quote: “The land in controversy lies in what was at one time the Mexican State of Tamaulipas, between the Nueces and the Rio Grande rivers. This is the foundation of the claim, very earnestly pressed by Kenedy and others holding under Villareal, that the Governor of Tamaulipas had authority to issue Villareal a grant on April 12, 1848, and that the grant of that date in Villareal’s favor is accordingly valid and protected by the Treaty of Guadalupe Hidalgo. This is a far-reaching contention, so we will examine it. It involves the sovereignty of Texas over this territory, and is a direct challenge of that sovereignty at the time this grant was issued. “One of the things demanded by General Houston of Santa Anna following the victory of San Jacinto was that he require his subordinate commanders the immediate withdrawal beyond the Rio Grande of all Mexican troops in Texas; and this was done. This was the first assertion by the new-born Republic of dominion clear to the utmost Mexican border. On December 19, 1836, the Congress of the Republic declared that the sovereignty of Texas extended to the Rio Grande, defining the southern and western boundary of Texas as beginning at the mouth of that river, and running thence up its principal stream to its source. In the annexation of Texas to the United States as a State, the Rio Grande was accepted as the boundary between Texas and Mexico. It is fair to say that upon no other terms would Texas have consented to the annexation. “The acceptance of that boundary line was the basis of President Polk’s policy in the opening of the war with Mexico. Its dispute by Mexico led to the war. Early in 1846, following the annexation of Texas in the previous December, President Polk ordered General Taylor to advance to the Rio Grande, which he did. The Mexican commander at Matamoros demanded General Taylor’s withdrawal to the Nueces. He refused. On April 23rd the Mexicans crossed the river and ambushed a body of American troops. Two weeks later they attacked General Taylor in the Battle of Palo Alto, — May 8, 1846, in which they were repulsed. On the next day Taylor drove them back across the river in a disastrous rout. And on the 18th of May General Taylor crossed the Rio Grande and occupied Mata-moros. “The attack upon the American troops of April 23rd was the occasion of President Polk’s message to Congress, declaring that Mexico had passed ‘the boundaries of the United States’ and had shed American blood ‘upon American soil,’ and that in consequence a state of war existed. “The territory between the Nueces and the Rio Grande remained largely under the actual possession and jurisdiction of Mexico until 1846. But after the establishment of Texas independence through the defeat of Santa Anna’s army, his recognition of Texas sovereignty, and particularly the resolution of the Congress of the Republic of December 19, 1836, that jurisdiction was never a rightful one. It was but a de facto possession. “Such as it was came to a complete end when early in 1846 United States troops in behalf of Texas and for the enforcement of her rights with respect to this very area, occupied the territory and ousted the Mexicans from it. This has never been doubted. Not only was Mexican authority at an end in the territory early in 1846, but in September, 1847, United States troops had captured the Mexican capital and the entire country was subject to their arms. “With no right at all to this territory after 1836, it would be strange to admit the sovereignty of Mexico over it in 1848, when two years before the sovereignty of Texas had been perfected by reducing the territory to possession. It is equally anomalous to contend that in 1848 Mexican de facto possession of it continued, when in 1847 the entire country, with its capital, was in the hands of American troops and the defeat of Mexico an accomplished fact. “While Mexico’s ouster from the territory was in progress, the Legislature of Texas, on April 29, 1846, enacted a joint resolution, declaring: “ ‘That the exclusive right to the jurisdiction over the soil in the limits of the late Republic of Texas was acquired by the val- or of the people thereof, and was by them vested in the Government of the said Republic, and that such exclusive right is now vested in and belongs to the State, excepting such jurisdiction as is vested in the United States, by the Constitution of the United States, and by the joint resolution of annexation, subject to such regulations and control as the Government thereof may deem expedient to adopt.’ “This was a reaffirmation of the sovereignty of Texas over all territory within the borders of the Republic as defined by the resolution of December 19, 1836, and proclaimed both its rightful and actual jurisdiction over this territory. “The Treaty of Guadalupe Hidalgo was signed February 2, 1848. It recognized the Rio Grande Rivér as the bowndary between Texas and Mexico, which was a recognition of the right of Texa-s to the entire area between the Nueces and the Rio Grande. It stipulated that the civil rights of Mexicans within territory ceded by Mexico, as they existed under the laws of Mexico when the treaty was signed, should be protected. “The proposition asserted by the claimants under the Mexican title is therefore, that though the jurisdiction of Mexico over this territory was never rightful after 1836; though such jurisdiction as it exercised was terminated early in 1846 by its complete ouster from the territory by American troops, — not only so, but with the entire country of Mexico reduced by September, 1847; and though this grant was issued in April, 1848, more than two months after the signing of the treaty of peace and Mexico’s recognition in the treaty of the right of Texas to the territory, still, that a Mexican official, in April, 1848, had authority to exercise the sovereign power of granting away land within it; and that his acts in derogation and repudiation of the sovereignty of Texas, must, in the courts of Texas, be accepted as valid. The proposition largely sets aside the freedom from Mexican rule accomplished by the establishment of Texas independence. It ignores the constant proclamation of both the Republic’s and the State’s sovereignty over this territory after December 19, 1836, and the consummation of their rightful claim by effective possession. It asserts the authority of Mexico to grant land in Texas to which it had no right and of which it had no actual control. It attempts to extend the protection of the Treaty of Guadalupe Hi-dalgo to rights not in existence when the treaty was signed, but attempted to be created afterward. It is refuted by the decisions of this court and plain principles of international law. “It is a novel proposition to say that a sovereignty having no right to given territory, long after its dispossession, its defeat in a war growing out of dispute over the territory, and its express recognition of the superior right by the provisions of a solemn treaty, may lawfully exercise the sovereign authority of disposing of it by grant. If this be the law a mere de facto jurisdiction over territory once obtained by an unlawful sovereignty, is of greater force, though terminated, than the lawful sovereignty’s de jure and de facto possession and control combined. It is met by the simple proposition that a nation cannot grant away territory to which it has no title.” As shown above, this case was carried to the Supreme Court of the United States, where writ of certiorari was denied. However, previous to this opinion, another great Texas judge, Chief Justice Roberts, of the Supreme Court of Texas, in the case of State v. Bustamente, 47 Tex. 320, said: “Texas claimed the territory, in defining its boundaries on the 19th day of December, 1836. In 1846, the claim was perfected by possession and the actual exercise of exclusive jurisdiction, and from that time it was lost by the State of Tamaulipas, in Mexico, for all purposes whatever, whether of judicial action or the exercise of powers relating to eminent domain. And it never afterwards recovered such lost powers.” It thus appears that long prior to the Treaty of Guadalupe Hidalgo the Rio Grande was recognized as the boundary between the Republic of Texas and the Republic of Mexico by the military, executive, legislative and judiciary branches of the governments of the Republic of Texas and of the United States. It is evident that this is true, because if the south boundary of the Republic of Texas had been the Nueces River, then the newly created State of Texas should have extended to that river, and not below it. If the south boundary line were properly located at the Nueces River, then all vacant land between the Nueces and Rio Grande would have belonged to the United States. It would then have necessarily followed that such land would not have belonged to the State of Texas but would have been the property of the United States, and the patents for land within that area would have had their origin in the United States and not in Texas. This Court will take judicial knowledge of the fact that grants for such vacant land between the Nueces and the Rio Grande were issued by the State of Texas. Inasmuch as both the United States and the State of Texas considered and treated such lands between said rivers as the property of Texas, it only remains to consider what the attitude of the Mexican Government was on this subject, and in this connection there is another fact which must be regarded as coipclusive. “After the Treaty of Guadalupe Hidalgo, by which the war with Mexico was terminated, the Mexican Commissioners addressed a communication to their government in which they say that ‘the intention of making the Bravo a limit has been announced by the clearest signs for the last twelve years; and it would have been impossible, at the present day, to change it. After the defeat of San Jacinto, in April, 1836, that was the territory which we stipulated to evacuate, and which we accordingly did evacuate, by falling back on Mata-moros. In this place was afterwards stationed what was called the Army of the North, and though it is true that expeditions and incursions have been made there, even as far as Bexar, we have very soon retreated, leaving the intermediate space absolutely free. In this state General Taylor found it when, in the early part of last year, he entered there by order of his government.’ With these opinions deliberately expressed by some of the highest functionaries of Mexico, what need is there in pursuing the argument in support of the claim of Texas to the Rio Grande as her southwestern boundary.” Life of James Knox Polk, by John S. Jenkins, published in 1850, page 259. Although this lawsuit could well be ended here, inasmuch as from the foregoing it is clearly apparent that the plaintiffs have no legal right to the relief they seek, however, due to the importance of the questions here involved, it is deemed proper to discuss the other points at issue in this controversy. Under Point 2 defendants say that if the Treaty of Guadalupe Hidalgo is applicable to the facts in this case, then such Treaty should not be construed in such manner as to: (A) Operate as a discrimination in favor of citizens of Mexico, or (B) Subject the land in question to the laws of Mexico, but, on the contrary, the maximum rights which the plaintiffs have a right to assert and claim are that they be on an equality with citizens of Texas. Therefore, the land in question is subject to the laws of the Republic of Texas and its successor in sovereignty, the State of Texas. Let us now examine the pertinent parts of the Guadalupe Hidalgo Treaty in order to ascertain its purpose and meaning. This treaty, of course, was between the United States of America and the Mexican Republic. In the foreward it speaks of the treaty as “Treaty of Peace, Friendship, limits, and settlement between the United States of America and the Mexican Republic * * * and being in the English and Spanish languages.” Still further, it states “ * * * wherein the two Peoples should live, as good Neighbours.” (It is possible that this was the beginning of the use of that now commonly employed term — “good neighbors.”) Art. V of said Treaty states the boundary lines between the two republics as a line commencing at the mouth of the Rio Grande, thence up the middle of that river to the southern boundary of New Mexico, thence by detailed boundaries to the Pacific Ocean. Art. XII deals with the “ceded territory,” and provides for the payment by the United States to the Mexican Republic of Fifteen Million Dollars in consideration of the extension acquired by the United States, as defined in Art. V. This ceded territory did not include any portion of the acknowledged limits of Texas, but the ceded areas for which the consideration was paid under the terms of Art. XII embraced the territories which had, previous to the Treaty, belonged to Mexico, but which under the Treaty would remain within the limits of the United States. Art. VIII, and particularly the last paragraph thereof, is the part strongly relied upon by the plaintiffs herein. It reads as follows: “ * * * In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States.” It is on this language that plaintiffs base their claim that the land in question is not subject to the laws of the Republic and State of Texas. They make this claim although more than one hundred years have passed since the Republic of Texas gained its independence, and almost one hundred years have passed since the signing of the Treaty of Guadalupe Hidalgo. They make this claim in the face of the language of the Treaty, last above quoted, in which there is not a word, or combination of words, which would have the meaning or effect of putting an alien owner of land in this state on a better footing than that of a citizen of the state. The expression “inviolably respected” can mean nothing more than that such properties shall be respected the same as if belonging to citizens of the United States. There is nothing in .the Treaty that suggests that the property mentioned in Art. V would not be subject to reasonable regulations in accordance with the property laws of the country where located. The word “equally” means that property in Texas shall be subject to the same laws, and does not mean that one law shall be applicable if the rights of Texans are involved, and an entirely different law should be applicable if the rights of Mexicans are involved. Surely that sentence cannot be logically construed to mean that title to land is subject to the laws of the sovereign Texas when rights of Texans are involved, and subject to the laws of the sovereign Mexico when the rights of Mexicans are involved. Chadwick v. Campbell, 10 Cir., 115 F.2d 401. What is the meaning of the provision of Art. VIII, “Mexicans not established there,” referring to the ceded areas? Clearly, “Mexicans not established there” means Mexicans who would be aliens after the Treaty. In this connection the Supreme Court of the United States, in Ely v. United States, 171 U.S. 220, 18 S.Ct. 840, 848, 43 L.Ed. 142, speaking with regard to Art. VIII of the Treaty, said: “This government promised to inviolably respect the property of Mexicans. That means the property as it then was, and does not imply any addition to it. The cession did not increase rights.” In the case of Baldwin v. Goldfrank, decided by the Supreme Court of Texas on May 13, 1895, 88 Tex. 249, 31 S.W. 1064, at page 1067, Chief Justice Gaines spoke directly and clearly on this subj ect, using the following language: “The provision of the treaty now under consideration simply secures Mexicans in their rights of property and guaranties to them, in that respect, the same protection which is extended to citizens of the United States. Article 8 of Treaty (1 Charters & Const. U. S. page 188). The act of February 8, 1850, makes no distinction between citizens of the state or of the United States and citizens of Mexico. Its provisions are extended to all owners of land in the designated counties alike. They were all free to submit the evidences of their respective claims to the board, with a view to their confirmation; or they could repose upon their existing rights. State v. Sais, 47 Tex. 307. It is clear, we think, that this legislation was neither a violation of the treaty of Guadalupe Hidalgo, nor an invasion of any right or reservation secured by the constitution either of the state or of the United States.” In considering the surrounding facts pertaining to the ratification of this Treaty, it is well to bear in mind these well-known facts: Previous to the Treaty of Guadalupe Hidalgo, by the annexation agreement with Texas, it was provided that Texas should retain absolute title and control over the vacant and unappropriated lands within the state. It is very probable that the annexation would not have resulted had such agreement not been made. This annexation took place nearly one hundred years ago, and throughout all that period the United States has consistently maintained a policy of non-interference concerning the lands of and in Texas. In other words, the United States has respected such annexation agreement thoroughly and consistently. It is not logical to believe that it was the intention of the United States to agree to anything in the Treaty of Guadalupe Hidalgo which would in any manner conflict with the annexation agreement made with the Republic of Texas. Directly in line with this contention respecting the sovereign right of Texas to maintain control over its lands, is the attitude of the United States in the negotiations with Mexico which resulted in the adoption of the very treaty now being considered by the court. In one of the Mexican drafts of the Treaty of Guadalupe Hidalgo, there was an Article X, reading: “All grants of land made by the Mexican Government or by the competent authorities, in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States, shall be respected as valid, to the same extent that the same grants would be valid, if the said territories had remained within the limits of Mexico. But the grantees of lands in Texas, put in possession thereof, who, by reason of the circumstances of the country since the beginning of the troubles between Texas and the Mexican Government, may have been prevented from fulfilling all the conditions of their grants, shall be under the obligation to fulfill the said conditions within the periods limited in the same respectively; such period to be now counted from the date of the exchange of ratifications of this treaty; in default of which the said grants shall not be obligatory upon the State of Texas, in virtue of the stipulations contained in this Article. “The foregoing stipulation in regard to grantees of land in Texas, is extended to all grantees of land in the territories aforesaid, elsewhere than in Texas, put in possession of such grants; and, in default of the fulfilment of the conditions of any such grant, within the new period, which, as is above stipulated, begins with the day of the exchange of ratifications of this treaty, the same shall be null and void. “The Mexican Government declares that no grant whatever of lands in Texas has been made since the second day of March one thousand eight hundred and thirty-six; and that no grant whatever of lands in any of the territories aforesaid has been made since the thirteenth day of May one thousand eight hundred and forty-six.” Miller, Vol. S, page 242. After that Article had been stricken by the United States Senate, Secretary of State James Buchanan wrote the Minister of Foreign Relations of the Mexican Republic, in part, as follows: “The third amendment of the Senate strikes from the Treaty the 10th Article. “It is truly unaccountable how this article should have found a place in the Treaty. That portion of it in regard to lands in Texas did not receive a single vote in the Senate. If it were adopted, it would be a mere nullity on the face of the Treaty, and the Judges of our Courts would be compelled to disregard it. It is our glory that no human power exists in this country which can deprive one individual of his property without his consent and transfer it to another. If grantees of lands in Texas, under the Mexican Government, possess valid titles, they can maintain their claims before our Courts of Justice. If they have forfeited their grants by not complying with the conditions on which they were made, it is beyond the power of this Government, in any mode of action, to render these titles valid either against Texas or any individual proprietor. To resuscitate such grants and to allow the grantees the same period after the exchange of the ratifications of this Treaty to which they were originally entitled for the purpose of performing the conditions on which these grants had been made, even if this could be accomplished by the power of the government of the United States, would work manifold injustice. “These Mexican grants, it is understood, cover nearly the whole sea coast and a large portion of the interior of Texas. They embrace thriving villages and a great number of cultivated farms, the proprietors of which have acquired them honestly by purchase from the State of Texas. These proprietors are now dwelling in peace and security. To revive dead titles and suffer the inhabitants of Texas to be ejected under them from their possessions, would be an act of flagrant injustice if not wanton cruelty. Fortunately this Government possesses no power to adopt such a proceeding.” Miller, Vol. 5, page 2SS. After the United States Senate had thoroughly considered the treaty, rewriting certain parts and eliminating Article X, the authorities in Washington were very apprehensive in regard to Mexico’s attitude toward the rewritten treaty. It was thought that Mexico might refuse to ratify the rewritten treaty. The United States was very cautious in regard to its method of procedure in its efforts to induce Mexico to accept the treaty. The mission to exchange the ratifications was entrusted to Ambrose H. Sevier, Senator from Arkansas and Chairman of the Senate Committee on Foreign Relations, and Nathan Clifford, Attorney General (subsequently Justice of the Supreme Court of the United States). Sevier resigned as Senator and Clifford as Attorney General, and the two men proceeded to Mexico. These gentlemen were given very detailed instructions by the State Department, a portion of which is quoted below: “You have been appointed by the President by and with the advice and consent of the Senate, to a most important and responsible mission. The task has thus been assigned to you of consummating the Treaty of Peace which was signed at Guadalupe Hidalgo on the second day of February, last, between the United States and the Mexican Republic, and which, on the 10th instant, was ratified by the Senate with amendments. “This brief statement will indicate to you clearly the line of your duty. You are not sent to Mexico for the purpose of negotiating any new Treaty or of changing in any particular the ratified Treaty which you will bear with you. None of the amendments adopted by the Senate can be rejected or modified except by the authority of that Body. Your whole duty will then consist in using every honorable effort to obtain from the Mexican Government a ratification of the Treaty in the form in which it has been ratified b}’’ the Senate, and this with the least practicable delay. * * * “Should you find it impossible, after exhausting every honorable effort for this purpose, to obtain the ratification from the President and Congress of Mexico of the Treaty as it has been amended by the Senate, it may then become