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Oy eer Li Se Uor{sang Ksepunogd NADY PUB res aa SOW Q554 LP 4 ME I Cornell University Library F 2554.P4M82 Brazil and Peru, boundary question iT 3 1924 019 984 321 Brazil and Peru Boundary Question By John Bassett Moore Brazil and Peru Boundary Question With the Compliments of the Athan The Knickerbocker Prees Rew Work Brazil and Peru Boundary Question By John Bassett Moore The thnickerbocker Prees Rew Work TABLE OF CONTENTS THe AcrRE (AQUIRY) TERRITORY. : : ; . 1 Lack or ESTABLISHED COLONIAL BOUNDARIES 2 . 2 THe PRINCIPLE OF ‘UTI PossIpDETIS”’ . : i . 6 DISPUTE BETWEEN BRAZIL AND BOLiviIA : 5 . 8 THE INTERNATIONAL SYNDICATE 9 NAVIGATION OF THE AMAZON ‘ é : : eT THE BRAZILIANS OF ACRE : ; ; : : oD PRELIMINARY ADJUSTMENTS . : ; : ‘ . 13 TREATY OF PETROPOLIS, NOVEMBER 17, 1903 . : Bers DECREE OF APRIL 9, 1904 ’ : ; : : . 16 CLaims OF PERU. ‘ ‘ ‘ ‘ 2 , zg 39 TREATY OF OCTOBER 23, 1851 ‘ : 5 ; . 19 Braziv’s TITLE . : : : 3 . ; . at PERUVIAN ENCROACHMENTS . ‘ : ‘ : 87 Mopvs VIVENDI, JULY 12, 1904 g ; ‘ ‘ . 29 Maps: No. 1; No. 2 Brazil and Peru Boundary Question During the past six years, disquieting reports have from time to time appeared in the press concerning dis- putes between Brazil and her neighbors, Bo- livia and Peru, as to the national ownership The Acre of an extensive territory deriving its name 4%") territory. from the river Aquiry, or Acre, an affluent of the river Purts. This territory, which forms a part of the immense region watered by the southern affluents of the Amazon, including the Purts and the Jurud, east of the Javary, is a geographical dependency of Brazil. In ‘fertility and varied natural resources,’’ which em- brace rich forests of rubber, it is said to have no superior in South America, but the trade with it has been carried on under enormous difficulties: The only ready access to the territory lies through the waters of the Amazon system. This fact suffices to explain why it was explored and settled by Brazilians. As early as 1872 “‘the adventurous Brazilian population of the middle Amazon valley’’ began to push up the Purtss and occupy the lands. By 1878 it was estimated that 8000 had settled in the valley; and a large influx took place in the following year from the drought-stricken Brazilian province of Ceard.2, The process has since gone 1 Col. G. E. Church, in The Geographical Journal, May, 1904, p. 597. 2 Ibid., p. 598. 2 Brazil and Peru Boundary Question steadily on, till, in 1903, as stated by Baron Rio-Branco, Minister for Foreign Relations of Brazil, there were, south of a geodetic line drawn from the confluence of the rivers Beni and Mamoré to the source of the Javary, ‘“more than 60,000 Brazilians who work on the banks and in the neighboring forests of the upper Purds and its tributaries, among which are the Aquiry, the Hyuacu or Yaco, the Chandless, and the Manoel Urbano, and, in those of the upper Jurud, including its most southerly affluents, the Moa, Jurud-mirim, Amonéa, Tejo, and Breu. In the territory of the wpper Acre, to the south of the Cauqeta, there are,’’ adds Baron Rio-Branco, “about 20,000 inhabitants of Brazilian nationality, principally engaged in the industry of gathering India rubber. Such is the calculation—and it accords with that of other per- sons who are familiar with these regions—which I find in a recent official report of a Bolivian official who resided there by commission of his government.’’ ! In the controversies regarding their boundaries, Brazil and her neighbors have stood as the successors respect- ively of Portugal and Spain; and there can be fe 4 nO more conclusive proof of the futility of the cntenial “attempts made by Portugal and Spain to fix boundaries. the limits of their dominions in South America than the fact that they left to their successors no treaty by which those limits nurported to be de- termined. It is a matter of common knowledge that, immediately * Report of Baron Rio-Branco, Minister for Foreign Relations, to the President of Brazil, Dec. 27, 1903, on the treaty between Brazil and Bolivia, signed at Petropolis, Nov. 17, 1903, for the exchange of territories and other compensations, by which the boundary question between those countries was settled. For the statement of the Bolivian official, mentioned by Baron Rio-Branco, see Monthly Bulletin of the International Bureau of the American Republics, August, Ig03, p. 428. Brazil and Peru Boundary Question 3 after the first discoveries of Columbus were made known in Europe, the Pope, Alexander VI., by a Bull issued on May 4, 1493, declared that all lands discovered and to be dis- covered ‘‘to the west and south”’ of a line drawn, from the North to the South Pole, 100 leagues ‘“‘ west and south” of the Azores and Cape Verde Islands, and not in the actual possession of any Christian power, should belong exclusively to Spain. This line proving to be unacceptable to the Portuguese Government, it was modified by the treaty of Tordesillas of June 7, 1494, by which a dividing line between the lands discovered or to be discovered by Spain and Portugal was drawn at 370 leagues west of the Cape Verde Islands. The Papal Bull, as modified by the treaty of Tordesillas, is often. referred to by writers as having divided the “New World”’ be- tween Spain and Portugal; but a moment’s consideration will convince us that this conception of the matter in- volves an anachronism. As much as fifteen years after the first discoveries of Columbus, although one may find on the map a segment of what we now know as the con- tinent of South America, he will also find to the north, lying between Europe and Asia,:.a vast stretch of ocean, obstructed only by afew islands.2, The New World, as we now know it, was still unknown, so that, however broad the terms of the Papal Bull and the treaty of Tordesillas may be, there was no actual concrete intention of divid- ing between Spain and Portugal the continents of North and South America. Nor was this all. When in later years the American continents were revealed, and Spain and Portugal had prosecuted their discoveries not only in the Western Hemisphere but also in the Eastern, it was found to be impossible to apply the line of demarca- * Dumont, Corps Diplomatique, vol. iii., part 2, pp. 302-303. 2See Ruysch’s Nova et universalior Orbis cogniti tabula, Romae 1508, in Nordenskidld’s Facsimile-Atlas, 1889, p. 63 et seq., map Xxxii, 4 Brazil and Peru Boundary Question tion of the fifteenth century. Owing to the defective state of geographical science, no agreement could be reached even as to the length of a degree on a great circle, the extent of a league was undetermined, and no man could tell where the line, even if it were to be ad- hered to, should actually run. Moreover, each country had, in its explorations and settlements, overstepped what the other conceived to be its proper sphere, so that any attempt to run the line would necessarily involve sacrifices. If it were fixed at one place, Portugal must give up a part of Brazil; if it were fixed at another, Spain must give up the Philippines. As the only way out of their difficulty, the two Crowns decided to renounce their ancient disputes, and ‘‘agreed in consigning to oblivion the rival claims growing out of the demarcation line, and began all over again, declaring Alexander’s Bull and the treaty of Tordesillas and others based thereon all null and void.’ : This conclusion, which was merely the necessary sum- mary of existing conditions, was formally announced in the treaty between Spain and Portugal, signed at Ma- drid, January 13, 1750. In this treaty the contracting parties declared that they had resolved to put an end to past and future disputes and to forget and desist from all actions and rights which they might have had by virtue of previous treaties, agreements, or acts, and to observe two rules, the principal one of which was that the best-known landmarks, such as the sources and courses of rivers and the most notable mountains, should be adopted in defining the boundaries, and the second, that each party should remain in possession of what it then held, with the exception of such mutual cessions as should be made for purposes of convenience, in order that the boundaries might be as little subject to contro- 1 The Demarcation Line of Alexander VI., Yale Review, vol. i., p. 54. Brazil and Peru Boundary Question Dd versy as possible. In conformity with these designs, a line, which was intended to afford a basis for the de- marcation of the boundaries, was drawn. We are here concerned with only a part of it, defined in Articles VII. and VIII. of the treaty, by which it was stipulated that the divisional line, after following the river Guaporé to its junction with the Mamoré, thus forming, as it was then conceived, the river Madeira, should thence proceed along the Madeira to a point half-way between the mouth of the Mamoré and the Amazon, and should then be drawn due westward to the eastern bank of the Javary. This is the line on which Peru founds her claim to-day. By the treaty signed at El Pardo, February 12, 1761, however, Spain and Portugal annulled the treaty of 1750; and their next attempt to adjust their boundaries was made in the treaty concluded at San Ildefonso, October 1, 1777. In respect of the section above men- tioned, it substantially readopted (Arts. X. and XI.) the line of 1750. But the treaty of 1777 was in terms de- clared to be a “preliminary treaty,’’ intended to “serve as a basis and foundation to the definitive treaty of limits”? which was later to be drawn up. The treaty was in reality one of exploration rather than of definitive settlement, and it was therefore enjoined upon the com- missioners who were to carry it into effect, that they were to take ‘‘no heed of any little gain or loss in territory to either Crown,” provided that they attained the purpose of effecting a practicable and convenient line. The object of the treaty of 1777 was not destined to be fulfilled. By a manifesto of February 28, 1801, the King of Spain declared war against the Queen of Portugal, her kingdom and dominions, and instructions were after- wards given to the Spanish viceroys and governors in South America to begin hostilities against Brazil. The ”? 6 Brazil and Peru Boundary Question treaty of 1777 was thus broken, and by the treaty of peace, concluded at Badajoz on June 6, 1801, no provision was made for its reinstatement or for the restoration of the status quo ante bellum. Portugal had indeed made during the war acquisitions of territory from Spain in America, which were definitively incorporated into Brazil. It is unnecessary here to discuss the general rules with regard to the abrogation of treaties by war, since it was on all sides admitted that by reason of the war of 1801 and the silence of the treaty of Badajoz, the preliminary treaty of 1777 was annulled. Former treaties of peace between Portugal and Spain had shown the understand- ing of the two Courts to be that the express restoration of all ante bellum conventions, and especially of those re- lating to limits, was an indispensable condition to their reacquiring their previous force. Thus, the treaty of peace between Spain and Portugal, signed at Utrecht, February 6, 1715, Article XIII., expressly restored the treaties of February 13, 1668, and June 18, 1701; the treaty of Paris of February 10, 1763, Article II., restored the treaties of 1668, 1715, and February 12, 1761; while the treaty of 1771, Article I., restored the treaties of 1668, 1715, and 1763, in all that was not incompatible with the engagements of the new convention. Such was the understanding of Spain and Portugal, and such has since been the understanding of their successors, Brazil and her Spanish neighbors; for which The princi- reason they have, in their attempts to deter- ple of “ uti ‘ 3 ‘ possidetis,” Mine their boundaries, confessedly not been governed by any conventional right. Thus, by the treaty of limits between Brazil and Uruguay, con- cluded at Rio de Janeiro, October 12, 1851, it was ex- pressly declared (Article II.) that the contracting parties recognized ‘‘as the basis which is to regulate their limits the uti possidetis.” ‘Uti possidetis” is a phrase incor- Brazil and Peru Boundary Question 7 porated into international law from the Roman law, sig- nifying the holding of lands by virtue of the right of possession. Where an attempt was made to infringe this tight, the judgment of the praetor was uti possidetis, that is to say, the party in possession was to prevail. By the treaty between Brazil and Peru, concluded at Lima, October 23, 1851, to which reference will again be made, it was distinctly agreed that the boundaries be- tween the two countries were to be ‘‘regulated on the principle of uit possidetis.”’ So, in the treaty of limits between Brazil and Venezuela, signed at Caracas, No- vember 25, 1852, it was declared (Article II.) that the contracting parties agreed upon and recognized “as a basis for the determination of the frontier between their respective territories the uti possidetis.”’ By the con- vention between Brazil and Paraguay, signed at Rio de Janeiro, April 6, 1856, the contracting parties agreed that they would “respect and reciprocally cause the present uti possidetis to be respected.’’ The same principle was embodied in the treaty of limits and the accompanying protocol between Brazil and the Argentine Confederation signed at Paranda, December 14, 1857. Finally, in the treaty between Brazil and Bolivia, signed at La Paz, March 27, 1867, it was declared (Article II.) that the contracting parties agreed ‘‘in recognizing as a basis on which to determine the boundaries between their respec- tive territories, the wtz possidetis,”’ It is true that, in the boundary discussions between Brazil and her neighbors, the lines laid down in the old treaties between Spain and Portugal have often been men- tioned. But, as is correctly explained in the protocol between Brazil and the Argentine Confederation of December 14, 1857, they have been referred to, not for the purpose of asserting anything with regard to the validity or invalidity of any former treaty, but merely,for 8 Brazil and Peru Boundary Question the purpose of indicating some line which the parties wished to discuss. Such being the situation as to limits between Brazil and her neighbors of Spanish derivation, we may now consider the events of the past six years as af- Dispute fecting her relations with Bolivia and Peru. ae By Article II. of the treaty between Brazil Bolivia. and Bolivia of March 27, 1867, heretofore men- tioned, it was stipulated that the boundary from the place where the Mamoré and Beni converge to form the Madeira, should proceed westward from the left bank of the Madeira “by a parallel line . . . in lati- tude 10° 20’, until it meets the river Javary,’’ and that, if the Javary’s sources should prove to be north of this line “‘from east to west,’’ then the boundary should “run on from the said latitude in a line to seek the prin- cipal source of the said Javary.’’ In adopting this line, Brazil yielded territory which she might reasonably have claimed to the south of it; but she afterwards went still further. It was subsequently ascertained that the sources of the Javary lay far to the north of the parallel of 10° 20’. According to the natural interpretation of the treaty of 1867, by which the boundary westward from the Madeira was to follow a line “from east to west,’’ the boundary would have been held to follow that line as far westward as the longitude of the sources of the Javary and then to ‘seek the principal source” by a line due north. But the Brazilian Government mani- fested a disposition, which public opinion in that country eventually did not approve, to accept an oblique line drawn northwestwardly from the confluence of the Mamoré and Beni directly tothe principal source of the Javary. The Brazilian pioneers, however, in the prosecution of their industry, wandered far beyond this line, and overran the forests of the Aquiry and other tributaries of the Purts. Brazil and Peru Boundary Question 9 In January, 1899, Bolivia established a custom-house at Puerto Alonzo, but four months later the Brazilian settlers broke it up. Subsequently, a small Bolivian force was sent into the territory, and a Brazilian consulate was established at Puerto Alonzo. A temporary arrange- ment seemed to be assured, when a crisis was precipitated by the action of Bolivia. On July 11, 1901, the Bolivian Government, apparently realizing that its hold on the territory was precarious,’ entered, through its minister in London, into a contract with an Anglo-American Syndicate, , a4 : 7 ernational which was organized in New York with a syndicate. nominal capital, and which was incorporated under the title of ‘‘The Bolivian Syndicate of New York City.”” By this contract, which was approved by the Bolivian Congress, December 20, 1901, and duly pub- lished as a law, the Bolivian Government assumed to make to the syndicate a CONCESSION of important rights, powers, and privileges in the whole of the territory of Acre, concerning which the controversy with Brazil was then pending. “The Syndicate,’”’? so the concession declared, was formed for the purpose of “constituting and incorporat- ing’? a “‘company,’’ which was to take over for thirty years, witha privilege of renewal, the “fiscal administra- tion’’ of the entire territory of Acre, and which was to that end to be invested with “ powers,”’ and with ‘‘rights, privileges and lands,”’ for its development and ‘“‘coloniza- tion.” This company was to be incorporated ‘in Eng- land, or in the United States of North [sic] America, or one of such States, or in some other foreign country,”’ and was to have a capital ‘‘of not less than £500,000 sterling,’ in ‘‘the currency of the country in which”’ it should be ‘‘incorporated”’; and the first privilege it was “The in- * The Geographical Journal, May, 1904, p. 600. 10 Brazil and Peru Boundary Question to possess was the enjoyment for five years of the exclusive right to buy in fee simple lands not already disposed of in the territory. It was also to possess ‘‘all mineral rights’’ in the terri- tory, the mineral laws of Bolivia meanwhile remaining suspended,—as well as the right to construct and main- tain docks, railroads, tramways, telegraphs, electric works, and telephones; and these things it might do either itself, or through other companies which it might constitute, thus exercising the power indefinitely to re- produce itself and to increase the hold of foreign interests. These vast privileges were, however, but subsidiary to the political and sovereign powers to be exercised by the company. It was to possess for thirty years ‘‘the sole, absolute, exclusive, and uncontrolled right, power, and authority to collect and enforce payment of” revenues, rents, and taxes, subject only to an accounting and division with the Bolivian Government; and, subject only to the pro- visions of treaties, and of the traffic ‘‘of such vessels as now exist,” it was to have “the exclusive right to grant concessions for the navigation”’ of the rivers and naviga- ble waters of the territory. The Bolivian Government was indeed to be permitted to appoint a representative in the territory to be known as the ‘‘national delegate’; but, subject only to the “supervision”’ of this delegate, whose salary the company was to pay, the company was to “ provide and maintain’’ a sufficient force of police for the “protection of the in- habitants’’ and the enforcement of law and order; and if at any time the Government should think it necessary the company was to equip and maintain, in addition to the police force, military and naval forces ‘‘for the de- fence of the rivers’? and ‘the preservation of internal order.” Brazil and Peru Boundary Question 11 Finally, it was stipulated that if, on the expiration of the specified term, the concession should not be renewed “on the same conditions,’’ or on others mutually agreed on, the Government was to “‘resume’’ the ‘‘administra- tion”’ of the territory. The Government of Brazil justly viewed this action of the Bolivian Government with grave apprehensions, since it constituted, as Baron Rio-Branco had said, the first at- tempt to introduce in the continent of South America “the African and Asiatic system of chartered companies.’’ This attempt, made in respect of territory which she herself claimed, and which could be conveniently reached only through her own rivers, Brazil conceived it to be her duty" to resist, As a step in that direction, the Minister of Finance, by a circular of August 13, 1902, declared the free navi- gation of the Amazon, so far as concerned the importation and exportation of merchandise N#vigation a of the to and from Bolivia, to be suspended. By a amazon. decree of December 7, 1866, the Emperor of Brazil, “with a view to promote the aggrandizement of the Empire, ever facilitating its intercourse more and more,’’ opened to the vessels of all nations, after Septem- ber 7, 1867, the navigation of the Amazon and certain of its affluents. The exercise of this privilege was regulated by a decree of July 31, 1867. By these measures the Amazon was declared to be open as far as Tabatinga, on the Brazilian frontier; the river Tocantins, as far as the city of Cametd; the Tapajoz, as far as the city of San- tarem; the Madeira, as far as the town of Borba; the Rio Negro, as far as the city of Mandos; the San Francisco, as far as the city of Penedo. Custom-house regulations were established, and it was provided that the presidents of the provinces of Amazonas, Para, and Alagoas, who were required immediately to inform the Government of 12 Brazil and Peru Boundary Question their action, might, “under extraordinary circumstances, and in the interest of public health and safety,’’ tem- porarily prohibit the importation, deposit, or transit of merchandise in one or more of the ports or places men- tioned as well as its circulation within a determinate zone within the frontiers of the Empire. By a decree of January 25, 1873, the navigation of the Madeira was opened beyond Borba, as far as Santo Antonio, its first fall. Against the circular of August 13, 1902, the Govern- ments of France, Germany, Great Britain, Switzerland, and the United States remonstrated, as a measure in- jurious to their commerce with Bolivia. Meanwhile the inhabitants of Acre had revolted against the attempt of Bolivia to establish her authority over the country, and had proclaimed their inde- pendence, with the intention of ultimately offering to Brazil the territory north of the river Orton. With the exception of Port Acre (Puerto Alonzo), where the Bolivian authorities held out till January, 1903, the country was controlled by the Brazil- ian insurgents. In the State of Amazonas, representa- tives of the syndicate were on the point of ascending the Purtis, and they shortly afterwards began the voyage in the hope that they might reach Port Acre. In January, 1903, President Pando, of Bolivia, set out from La Paz at the head of an expedition to repress the Acreans and give possession to the syndicate. He reached the con- fines of the territory in the following March, but Brazil had despatched a force and recovered possession of the country. Thus, early in 1903, the Brazilian Government was confronted with four difficult questions, relating respect- ively to the suspension of fluvial commerce with Bo- livia, the international syndicate, the Brazilians of Acre, The Brazil- ians of Acre. Brazil and Peru Boundary Question 13 and the sovereignty of the disputed territory. To deal with these questions, President Rodriguez Alvez called to his aid an eminent statesman of wide experience, the Baron Rio-Branco, who assumed ee in December, 1902, the post of Minister for ae Foreign Relations. On February 20, 1903, the freedom of commercial transit in respect of Bolivia was restored, though the importation of war material into that country through the Brazilian rivers was pro- hibited till further notice... The syndicate was induced, t Note of Baron Rio-Branco, Minister for Foreign Relations, to Mr. Seeger, U. S. Consul General in charge of the Legation, Feb. 20, 1903. The text of the note, translated, is as follows: “T had the honor to receive the letter which Mr. Eugene Seeger, Consul-General in charge of the Legation of the United States of America, wrote me on January 20, in reference to the decision the Federal Government took on August 8, 1902, of suspending on the Amazon free transit to Bolivian import and export trade. “Tt was in 1866 that the Brazilian Government opened the Amazon to the merchant ships of all friendly nations; but of the affluents of that river which have their source in Bolivian territory or pass through it the only one to which it extended this liberty, and in fact the only one in Brazil which can serve Bolivian foreign commerce, was the Madeira, from its confluence to the port of Santo Antonio. The Purts, and therefore its tributary, the Aquiry, or Acre, never were open to international navigation. Brazil has always maintained that when a river passes through the territory of two or more States the freedom of navigation or of transit through the country of the main river depends on a prior agreement thereto with the country of the tributary river, an agreement which in its nature implies reci- procity. ‘‘There has not been and there is not in force any treaty of com- merce and navigation between Brazil and Bolivia, and free transit by Brazilian rivers for Bolivian foreign commerce was only a matter of tolerance on the part of Brazil. But since the Bolivian Government has thought’ to be able to transfer rights of a quasi-sovereign nature to a syndicate of foreigners of different nationalities, Americans and Europeans, a syndicate without international capacity, and which, by the way it is constituted and by the means it undertook to employ in Europe, clearly showed that it was conspiring against the so-called Monroe doctrine, and inasmuch as the same Government has besides 14 Brazil and Peru Boundary Question for the sum of £110,000, to renounce all rights and claims under its concession, the effect of which was thus completely nullified. On March 21, 1903, a modus v1- vendi with Bolivia was concluded, under which Brazilian troops were permitted to occupy the banks of the Aquiry and Bolivian troops those of the Orton, while Brazil was to collect the export duties on rubber from the disputed territory and divide the proceeds equally with Bolivia. The Brazilian military governor was also authorized to send detachments south of parallel 10° 20’, within agreed limits, for the purpose of preventing conflicts between the Bolivian troops and the armed Acreans, during the term for which hostilities were to be suspended. Mean- while, negotiations were to be undertaken for a definitive settlement, and, in case they should not be concluded within a certain time, arbitration was to follow. this conferred upon that syndicate the power of disposing at will of the navigation of the river Acre and its affluents, Brazil concluded it was her duty to make reprisals, and for that reason, in the absence of con- ventional law between the two parties, suspended the tolerance which has existed for some years. “The situation which obligated the adoption of that expedient has now changed, and, therefore, since the Federal Government is de- sirous of attending as promptly as possible to the interests of commerce, it has by a decision of this date re-established free transit on the Amazon for merchandise between Bolivia and the foreign countries; it has continued, however, to prohibit the importation to that country of war material by Brazilian rivers. “In thus informing Mr. Seeger that the resolution has now been taken, which I announced to him verbally was near, I thank him for the terms in which he asked for it in the name of the American Govern- ment, and the earnestness with which he referred to the strong bonds of tried friendship which unite our two countries. It will ever be the endeavor of Brazil to do her full share to strengthen and stimulate on every occasion the time-honored relations of mutual good will which bind her to her great and glorious sister of the north, and for this reason I take particular pleasure in announcing an act which will be agreeable to his Government.’’—Foreign Relations of the United States, 1903, P. 42. Brazil and Peru Boundary Question 15 The negotiations resulted in the signature at Petropolis, on November 17, 1903, of a treaty “‘for the exchange of territories and other compensations,” by which the Acre question, so far as it concerns Brazil _Treaty of and Bolivia, was finally adjusted... This treaty sso is founded on the broad and enduring basis 1083. of mutual interest and convenience. Bolivia concedes to Brazil the whole of the basin of the Aquiry, embracing 191,000 square kilometers, part of which was admitted to belong to Bolivia under the treaty of 1867, and receives in return, besides an area of 2,296 square kilometers, between the Madeira and Abunan rivers, inhabited by Bolivians, and certain tracts of land on the Paraguay, the sum of £2,000,000 sterling ($10,- 000,000), which Bolivia “accepts with the intention of using the same mainly in the construction of railways or other works tending to improve the communications and develop commerce between the two countries.’ 2 Brazil, in addition to the other compensations to Bolivia, agrees to build a railway from port Santo Antonio, on the Ma- deira River, to Guajard-mirim, on the Mamoré, with a branch running to Villa Bella, at the confluence of the Beni and Mamoré, and to grant to Bolivia the same priv- ileges and rates as she shall herself enjoy in the use of the line. “The gain,’’ says Col. Church, ‘‘ which Bolivia will reap from the construction of the Madeira and Ma- moré railway alone is worth all of her territorial sacri- fices, while the opening of such a grand trade avenue will give life and activity to the 533,000 square miles of dor- mant Matto-Grosso, a Brazilian State which possesses almost boundless agricultural, pastoral, and mineral 1 The signers, on the part of Brazil, were Baron Rio-Branco and Mr. J. F. de Assis-Brasil; on the part of Bolivia, Messrs. Fernando E. Guachalla and Claudio Pinilla. 2 Treaty of Petropolis, Art. III. 16 Brazil and Peru Boundary Question resources.”” The treaty also pledges perpetually “the most ample freedom of transit and river navigation to both countries,’’ and secures to each country the right, in connection with such transit and navigation, to keep customs agents at certain ports of the other. It is with reference to these stipulations that Col. Church further declares that the treaty “goes far towards making the grand inland reservoir of the Amazon an international sea, to be used in common by all the republics which have tivers flowing into it.’’? By a decree published at Petropolis, April 9, 1904, by the Minister of the Interior, Brazil has pro- ree of vided for the organization of the Acre terri- 1904. tory. The first two articles read as follows: “Art. I. The Acre territory is bounded on the north by the geodetic Javary-Beni line from the source of the Javary up to the new boundary with Bolivia on the Abunan River; on the east and south by the limits established by the treaty of November 17, 1903, between Brazil and Bolivia; and on the west, from the sources of the Javary up to 11° south latitude, by the limits which shall be stipulated between Brazil and Peru to the south of the source of the Javary. The jurisdiction of the authorities created by this decree will extend as far as the line which divides the waters of the Ucayale from those of the affluents of the Amazon to the east of the Javary, that is to say, from those of the Jurud and Purtis, a line which limits on the west the territories to which Brazil had an incontestable right prior to the treaty of March 27, 1867, and then implicitly ceded to Bolivia and now re- covered by the treaty of November 17, 1903, Brazil acquiring, besides, by force of the last-mentioned treaty, a right to the 1 The Geographical Journal, May, 1904, p. 612. Col. Church at the same place remarks: ‘‘It [the treaty] is characterized by broad and far-reaching statesmanship. . . . The Premier of Brazil, Baron Rio-Branco, shows himself to be a statesman of the first rank.” Brazil and Peru Boundary Question 17 zone which Bolivia claimed or could claim from Peru to the north of the parallel 11° in the basin of the Ucayale. “Art. II. The Acre territory is divided into three admin- istrative departments with the following names: Alto Acre, Alto Purts, and Alto Jurud. ‘“‘r,. The department of Alto Acre comprehends the region watered by the Abunan, Rapirran, Iquiry, Alto Acre or Aquiry, and Alto Antimary, within the limits agreed upon with Bolivia. “2. The department of Alto Purts comprehends the region watered by the Yaco or Hyuacu and the Alto Purts, with all the other affluents of the latter, including the Chand- less, the Curanja, and the Coruja as far as the sources of these rivers, provided they do not lie to the south of 11° south lati- tude; and to the west of these sources all that Bolivia claimed or could claim from Peru in the basins of the Urubamba and Ucayale. “3. The department of Alto Jurud comprehends the lands watered by the river Tarahuaca and its affluents and the Alto Jurud and all its tributaries, including the Moa, Jurud-mirim, Tejo and Breu, as far as the sources of these rivers; and to the west of these sources all that Bolivia claimed or could claim from Peru in the basin of the Ucayale.” In this decree, Brazil expressly reserves any territorial rights which may be claimed by Peru. This was done in conformity with the spirit of the treaty of Petropolis, in which Brazil declares ‘+ that she “will negotiate directly with the Republic of Peru concerning the boundary question relative to the territory comprised between the sources of the Javary and parallel 11°, and will endeavor to reach a friendly solution of the dispute without imposing responsibility upon Bolivia in any event.” The Government of Peru, however, not only alleges title to territory within the limits agreed upon by Brazil t Art. VIII. Claims of Peru. 18 Brazil and Peru Boundary Question and Bolivia, but also claims to the north of the Acre ter- ritory, as is shown by the accompanying maps, a vast region to which Brazil has always considered her own title to be unquestionable. In July, 1903, the Government of Peru formally re- quested to be allowed to become a party to the negotia- tions then about to take place between Brazil and Bolivia. This request was in substance a renewal of an informal proposal made to Brazil, through the Peruvian minister at Rio de Janeiro, in January, 1903, for the organization of a mixed tribunal, composed of representatives of Brazil, Peru, and Bolivia, to solve the boundary ques- tion. This proposal Baron Rio-Branco unhesitatingly declined. His reasons were manifold. Brazil and Bolivia had reached in their relations a grave crisis, which it was necessary promptly to solve. Apart from this, the aims of the three powers, and the grounds of their claims, were different. Brazil and Bolivia desired to proceed on the basis of reciprocal interest and convenience, or else on that of the treaty of 1867, which Peru did not recognize, while Peru and Bolivia relied on titles emanat- ing from Spain, and on decisions of the Cortes of Ma- drid, the authority of which Brazil, as the successor of Portugal, necessarily was unable to admit. The dis- cussion would be long and complicated, and one of three things would necessarily happen: Either Peru would unite with Brazil against Bolivia, a result which could be accomplished only by Brazgil’s sacrificing to Peru at least the region of the upper Jurud, long occupied by Brazilians; or Peru would unite with Bolivia against Brazil; or Bolivia would unite with Brazil against Peru. The conference would end in a rupture, or in a tripartite treaty of arbitration which, as experience had shown, would not be carried into effect. In 1894 Peru, Ecuador, tSee Map, No. 1. Brazil and Peru Boundary Question 19 and Colombia, after long discussion, concluded a treaty to refer their boundary question to the King of Spain. Ten years had elapsed, and no arbitration had taken place; the treaty itself was eventually declared to be of no effect; and Peru had been seeking to revive a sepa- rate treaty of arbitration concluded with Ecuador in 1890, in which Colombia had no part. Peru had, in fact, concluded a separate treaty with Bolivia on De- cember 30, 1902, for the submission of their territorial claims to the President of the Argentine Republic as arbitrator, without communicating with Brazil. But, while declining to enter into a tripartite negotiation or a tripartite arbitration, Baron Rio-Branco declared that Brazil would not hesitate to submit her dispute with Peru to an arbitrator at the proper time, provided that Peru would (1) evacuate the positions militarily occupied by her in the disputed territory since the latter part of 1902, and (2) produce the titles on which she founded her territorial pretensions. The only treaty stipulation between Brazil and Peru with regard to their boundaries is that which is comprised in the convention of commerce oe and navigation signed at Lima, October 23, aoe 1851, which contains the following article: ; “Art. VII. In order to prevent disputes respecting the frontier alluded to in the stipulations of the present Conven- tion, the High Contracting Parties agree that the boundaries between the Empire of Brazil and the Republic of Peru are regulated on the principle of utt possidetis; consequently, they respectively acknowledge as frontier the hamlet of Tabatinga, and from thence in a direct line to the north as far as the river Japuré, opposite the mouth of the Apaporis; and to the south of Tabatinga the River Javary from its confluence with the Amazon. “A mixed Commission, to be named by both Governments, 20 Brazil and Peru Boundary Question will decide upon the frontier according to the principle of utz possidetis, and will propose such exchange of territories as they may judge proper for fixing upon the most natural and convenient boundaries for both nations.” It thus appears that Peru, although she now lays claim to a line extending more than 600 miles due east, along the parallel of 6° 50’ south latitude, from the source of the Javary to the river Madeira, under the extinct treaty between Spain and Portugal of 1777, expressly accepted, in 1851, as the basis of her boundary with Brazil, the principle of uit possidetis, and agreed with Brazil in designating Tabatinga as a frontier post, and southward therefrom the river Javary, on which Taba- tinga is situated, as the boundary. It would naturally be supposed that if Peru had then possessed or claimed any title to territories east and south of the sources of the Javary, on the confines of Brazil, she would have put it forward, and would have proposed that the boundary should be formed either by a continuation of the line of the Javary or by some modification of it. But nothing of the kind was suggested; and, instead of the east-west line from the Javary to the Madeira described in the treaty of 1777, the two countries concurred in adopt- ing the principle of uti possidetis.. Twelve years later, however, in 1863, the Peruvian Government proposed that the line of 1851 should be extended by a line from the Javary to the Madeira; and in 1868, and again in 1874, suggested a conference of Peruvian, Brazilian, and Bolivian plenipotentiaries, to consider questions of boundary. These proposals, which betrayed a purpose on the part of Peru to revert to the treaty of 1777, the Brazilian Government declined. 1 It has been remarked in some of the discussions, that the Peruvian plenipotentiary, during the negotiation of the treaty of 1851, referred to the treaty of 1777; but it appears that he did so merely for a Brazil and Peru Boundary Question 21 Brazil, in fact, had, prior to 1851, effectively occupied the southern bank of the Amazon, and the banks of the lower courses of its affluents east of the Javary.? Her claim of title thus embraced, on clear and well-settled principles, the sources of those affluents, among which were the Jurud and Purts, with all their tributaries, neither Peru nor Bolivia having oc- cupied any point on the upper courses of those rivers. Brazil in this relation invokes the well-known rule laid down by Messrs. Monroe and Pinckney, as plenipoten- tiaries of the United States, in their note to Don Pedro Cevallos, Minister of State of Spain, of April 20, 1805, concerning the boundaries of Louisiana. In this note, Messrs. Monroe and Pinckney said: “The principles which are applicable to the case are such as are dictated by reason, and have been adopted in practice by European Powers, in the discoveries and acquisitions which they respectively made in the new world: they are principles intelligible, and, at the same time, founded in strict justice. The first of these is, that when any European nation takes possession of any ex- tensive seacoast, that possession is understood as extend- ing into the interior country, to the sources of the rivers emptying within that coast, to all their branches and the Brazil’s title. definition of the territory which he wished to obtain on the north bank of the Amazon from Tabatinga to the river Avatiparand, a western branch of the Japurd. The Brazilian plenipotentiary, how- ever, declared that Brazil did not accept as a basis of discussion the treaty of 1777, and the Bolivian plenipotentiary admitted that it was null I Lieut. Gibbon, U.S. N., who, proceeding northward from the terri- tories of Bolivia and Brazil, explored the Madeira in 1852, said: ‘‘ The Madeira River flows through the Empire of Brazil.” (Herndon and Gibbon's Exploration of the Valley of the Amazon, S. Ex. Doc. 36, 32d Cong., 2d sess., part ii., p. 289.) It evidently did not occur to him that Peru, whose territories he understood to lie hundreds of miles away, to the westward, could ever claim the Madeira as her boundary with Brazil. 22 Brazil and Peru Boundary Question country they cover; and to give it a right, in exclusion of all other nations, tothe same. It is evident that some rule or principle must govern the rights of European Powers, in regard to each other, in all such cases; and it is certain that none can be adopted in those to which it applies, more reasonable or just than the present one. Many weighty considerations show the propriety of it. Nature seems to have destined a range of territory, so described, for the same society, to have connected its several parts together by the ties of a common interest, and to have detached them from others. If this principle is departed from, it must be by attaching to such dis- covery and possession a more enlarged or contracted scope of acquisition; but a slight attention to the subject will demonstrate the absurdity of either. The latter would be to restrict the rights of a European Power, who discovered and took possession of a new country, to the spot on which its troops or settlements rested: a doctrine which has been totally disclaimed by all the Powers who made discoveries and acquired possessions in America. The other extreme would be equally improper; that is, that the nation who made such discovery should, in all cases, be entitled to the whole of the territory so dis- covered. In the case of an island, whose extent was seen, which might be soon sailed round, and preserved by a few forts, 1t may apply with justice; but in that of a continent, it would be absolutely absurd; accordingly, we find that this opposite extreme has been equally dis- claimed and disavowed by the doctrine and practice of European nations. The great continent of America, North and South, was never claimed by any one European nation, nor was either portion of it. Their pretensions have been always bounded by more moderate and rational principles. The one laid down has obtained general assent. Brazil and Peru Boundary Question 23 “This principle was completely established in the con- troversy which produced the war of 1755. Great Britain contended that she had a right, founded in the discovery and possession of such territory, to define its boundaries, by given latitudes in grants to individuals, retaining the sovereignty to herself from sea to sea. This pretension, on her part, was opposed by France and Spain, and was finally abandoned by Great Britain in the treaty of 1763, which established the Mississippi as the western boundary of her possessions. It was opposed by France and Spain on the principle here insisted on, which of course gives it the highest possible sanction in the present case.”’ The principle thus laid down by Messrs. Monroe and Pinckney, namely, that when a nation ‘‘ takes possession of any extensive seacoast, that possession is understood as extending into the interior of the country, to the sources of the rivers emptying within that coast, to all their branches and the country they cover, and to give it a right, in exclusion of all other nations, to the same,’’ though applied in the particular instance to the acquisi- tions of European nations, obviously is a principle of universal application, and as such has been freely invoked by the Government of the United States in other cases, and especially in support of its claims to the Oregon territory. It operates in the present instance, in favor of Brazil, with a twofold force; for, while it serves to give title to the first occupant of the lower course of a Tiver, as against a claimant who has actually first settled, at a later time, on the upper course, Brazil has added to her hereditary right, as the first occupant of the lower course, the highest confirmation by first actual settlement of the upper course and its affluents. The statement of Messrs. Monroe and Pinckney has re- ceived the sanction of the principal modern publicists. 1 American State Papers, ‘‘ Foreign Relations,”’ (folio) ii., 664. 24 Brazil and Peru Boundary Question Twiss, in his able and learned work, published in 1861, says: “The Commissioners of the United States on this oc- casion, in applying the above principle to the claim of their Nation, were careful not to press the doctrine of virtual possession beyond those limits within which the Nations of Europe would be in accord with them. On the authority of the principle above stated, they say, ‘It is evident that by the discovery and possession of the River Mississippi in its whole length, and the Coast ad- joining it, the United States are entitled to the whole country dependent on that river, the waters which empty into it, and their several branches, within the limits on that coast.’ In other words, they maintain that the oc- cupation of the seacoast entitled a Nation to the posses- sion of the inland territory, and of the navigable rivers included within it; in which position of law all European nations agree.’’: Phillimore, in his great work on international law, adopts the statement of the American plenipotentiaries textually ?; and in this relation he observes that “the right of dominion would extend from the portion of the coast actually and duly occupied inland, so far as the country was uninhabited, and so far as it might fairly be considered to have the occupied seaboard for its natura outlet to other nations.’’ 3 Commenting again on the same subject, Phillimore de- clares that writers on international law “‘all agree that the right of occupation incident to a settlement : extends over all territory actually and bona fide occupied, over all that is essential to the real use of the settlers, t Law of Nations, vol. 1., $117, pp. 171-172. 2 International Law, vol. i., § ccxxxviii. See, also, Field, International Code, 2d ed., art. 75; Pradier- Fodéré, Droit Int. Public, vol. ii., $799, pp. 357-358. 3 International Law, 2d ed., vol. i., p. 275. Brazil and Peru Boundary Question 25 although the use be only inchoate, and not fully devel- oped; over all, in fact, that is necessary for the integrity of the possession, such necessity being measured by the principle already applied to the parts of the sea adjacent to the coasts, namely, ‘2bi finitur imperium ubt finitur armorum vis.’ * Among the diplomatists of the United States, no one will deny to Albert Gallatin a place in the first rank. In a celebrated paper of December 19, 1826, in which the claims of the United States to the Oregon territory were discussed, Mr. Gallatin said: “Tt will not be denied that the extent of contiguous territory, to which an actual settlement gives a prior right, must depend, in a considerable degree, on the mag- nitude and population of that settlement, and on the facility with which the vacant adjoining land may, within a short time, be occupied, settled, and cultivated by such population, as compared with the probability of its being thus occupied and settled from another quarter.”’ ? The claim of contiguity as thus broadly asserted by Mr. Gallatin was afterwards contested by those who maintained the title of Great Britain to the Oregon territory; but, whether Mr. Gallatin’s contention be ad- mitted or denied, it evidently went far beyond the moderate, just, and well settled rule invoked by Brazil in the present instance. Hall, one of the most eminent of modern publicists, says: “There is no difference of opinion as to the general rule under which the area affected by an act of occupation should be determined. A settlement is entitled, not only to the lands actually inhabited or brought under its im- mediate control, but to all those which may be needed 1 International Law, 2d ed., vol.i., p. 277. 2 American State Papers, ‘‘ Foreign Relations ’’ (folio), vol. v1., p. 668. 26 Brazil and Peru Boundary Question for its security, and to the territory which may fairly be considered to be attendant upon them. . . . It has been generally admitted that occupation of the coast carried with it a right to the whole territory drained by the rivers which empty their waters within its line; but the admission of this right is perhaps accompanied by the tacit reservation that the extent of coast must bear some reasonable proportion to the territory which is claimed in virtue of its possession.’’ * The ‘“‘tacit reservation’ here suggested by Hall ob- viously can have no application to the case of Brazil, whose coast extends both North and South far beyond the lines of latitude which enclose the present disputed territory. On the well-established doctrine thus laid down, Brazil, prior to 1867, was in a position to maintain her title to the basins of the Jurud and Purts. But in that year she yielded to Bolivia, as has been seen, the territory south of the line drawn from east to west from the confluence of the Beni and the Madeira. This territory she has now recovered; and, besides being in a position to defend her rights in respect of it against Peru, in whose favor she never yielded any of them, she has also acquired from Bolivia all that the latter could claim from Peru in the basin of the Ucayale, under acts and decisions of the Spanish Government prior to the independence of the provinces concerned. In a note addressed to the Brazilian Government, on June 14, 1898, the Peruvian minister at Rio de Janeiro sought to obtain freedom of transit by way of the river Jurud, in behalf of Peru’s “incipient commerce”’ in that region. This was shortly after the appearance of groups of Peruvian cacheiros? on some of the western t International Law, 4th ed., pp. rro—111. 2 Gatherers of crude rubber. Brazil and Peru Boundary Question 27 affluents of the upper Jurud.t In despatches of May 26 and June 13, 1902, Mr. Amador del Solar, then Peruvian minister at Rio de Janeiro, intimated to his Govern- ment “the urgency of seriously considering’’ the establishment of an “administrative and Peruvian customs organization . . . in the sources oe of the Jurua and Purts.’’ On October 18, 1902, a small detachment of Peruvian troops, accom- panied by a number of caucheiros, established a military and customs post at the mouth of the Amonéa, an affluent of the upper Jurud, and on June 23, 1903, a similar ex- pedition appeared on the upper Purtis opposite the mouth of the Chandless, ‘‘thus invading,’ as Baron Rio- Branco declared, “territories which were discovered, ex- plored and long since peopled exclusively by Brazilians.” Baron Rio-Branco orally requested of the Peruvian min- ister at Rio de Janeiro the withdrawal of the military and civil authorities in question, since he did not wish, by putting the request in writing, to give it the appearance of a demand. The request was not complied with, and in notes of December 24 and 27, 1903, he intimated that such a state of things could not continue without risk to the maintenance of good relations. Subsequently, how- ever, a new expedition was sent out by the Peruvian Government, or by its delegate in Iquitos, with re- t “The melancholy reason why Peru is now turning for rubber sup- plies to the great district which is claimed by both her and Brazil is that she is gathering the last of the rubber from the formerly rich region of the Montafia. It is said that these rubber forests are prac- tically exhausted. This is the result of the wasteful methods pursued by the gatherers, who, instead of tapping the trees, cut them down, a destructive process that has been going on for many years. But in the basins of the Purts and the Jurud are illimitable rubber forests, only partly explored, which will now be gradually developed. Many rubber gatherers have started thither within the past two years, and several Peruvian syndicates have begun operations there.’’— New York Sun, May 8, 1904. 28 Brazil and Peru Boundary Question enforcements of men, arms, and ammunition, to the Ju- rud and Purtis. In protesting against these expeditions, Baron Rio-Branco adverted to the fact that in the bound- ary disputes which Brazil had had with the Argentine Republic, France, and Great Britain, none of those power- ful governments had ever attempted to occupy, either administratively or militarily, contested territories peo- pled by Brazilians. Collisions took place not only between the Peruvian troops and the inhabitants of the territory, but also be- tween the Peruvian and Brazilian forces; and in May, 1904, the Brazilian Government prohibited the transit of arms and munitions of war to Peru by way of the Ama- zon. By the treaty of commerce and navigation between Brazil and Peru of October 10, 1891, certain rules and regulations, in addition to those established for all nations in 1867, were agreed upon as to the navigation of that river. The Government of Brazil, however, maintained that these facilities were applicable only ‘‘to the innocent transit, and in no way to the passage of means of aggres- sion and war, to be used against Brazil and her nationals.”’ In regard to such passage, Baron Rio-Branco, in a note of May 16, 1904, declared that the conventional right of transit came into conflict “with the natural and absolute right which Brazil possesses to prevent and impede, as much as possible, future aggressions, which would disturb the peace still further. In resorting to this prohibition, the Brazilian Government makes use of the so-called right of self-preservation, which may be prudently re- sorted to before the employment of reprisals.’’ In ac- cordance with the prohibition thus ordered, the Brazilian Government caused to be removed from a steamer at Manaos certain cases of arms and ammunition shipped from Europe to Iquitos, but informed the Peruvian min- ister at Rio de Janeiro that the articles might be for- Brazil and Peru Boundary Question 29 warded to their destination by some other route. The Peruvian minister protested both against the general prohibition and also against the interruption of the tran- sit of the particular cargo, declaring that the latter was intended for commercial and not for military purposes. Peru proposed that Brazil should join her in evacuating the territory in dispute and in neutralizing the whole region. This proposal Brazil at once rejected; but, while asking for the immediate evacuation by Peru of the region inhabited by Brazilians, she proposed on May 9, 1904, the neutralization of the upper Jurua from its source to its confluence with the Breu, and of the upper Purtis from its source to its confluence with the Manoel Urbano. This proposal led to the signature, on July 12, 1904, by Baron Rio-Branco, on the part of Brazil, and by Sefior Herman ‘Velarde, Peruvian minister at Rio de Janeiro, on the part of his Government, of a ae protocol by which a modus vivendi was estab- vo" i - : 5 july 12, lished with a view to the prevention of con- 1904. flicts in the region of the upper Jurud and upper Purtis pending the effort of the two Governments to reach a definitive settlement by negotiation, or, in case such negotiation should fail, by other amicable methods. By this protocol the diplomatic discussion was to begin on the 1st of August last and is to close on the 31st of next December. In case a satisfactory direct agreement shall not have been reached within that time, the two Governments declare their desire to have recourse to some of the indirect means of amicable settlement, such as the good offices or mediation of a friendly government, or arbitration. Pending the discussion, the following territories are to be considered as neutralized: (1) The basin of the upper Jurud from the sources of that river and of its upper affluents to the left bank of the river 30 Brazil and Peru Boundary Question Breu, and from that point westward below the parallel of latitude running through the mouth of the Breu; and (2) the basin of the upper Purts from the parallel of 11° south latitude to the place called Catay, inclusive. These definitions accord with Baron Rio-Branco’s offer of May 9, 1904, with the slight modification that in the basin of the Purts the neutralization begins at Catay, instead of at the mouth of the Manoel Urbano. The territories thus neutralized are to be policed and administered by two mixed commissions, each composed of Brazilian and Bolivian officers, and the duties collected by them are to be equally divided between the two countries. After this protocol was signed there was concluded a convention for the immediate arbitration of the claims of the citizens of each country against the government of the other for injuries received in the upper Jurud and upper Purtss since 1902. As the result of the amicable arrangement thus effected, the prohibition of the transit of arms to Peru by way of the .4mazon has been revoked. The dispute between Brazil and Peru, which at one time wore so threatening an aspect, seems therefore now to be in the process of amicable and definitive settlement. While it was in an acute stage, an effort was made in certain quarters to prejudice the case of Brazil by repre- senting that Peru desired arbitration, while Brazil re- jected it, the inference being drawn that Brazil, because she was unwilling to rush into an unrestricted arbitra- tion, was doubtful as to her rights. This inference is not only more specious than sound, but is also opposed to the teachings of common experience. A nation cannot be expected to stand ready to arbitrate any and every boundary claim which a neighbor may see fit to make. The theory that claims to territory must be arbitrated but not diplomatically discussed is indeed quite novel. Brazil and Peru Boundary Question Bt By the Constitution of Brazil, Title V., Article 88, the Government is expressly forbidden to “undertake a war of conquest, directly or indirectly, either by themselves or in alliance with another nation’’; but this is not understood to preclude the Government from maintaining territorial rights of which it conceives itself to be undoubtedly possessed. In repelling demands for unrestricted arbitration, Brazil but followed the ex- ample of other nations, including that of the United States. In his memorial to the German Emperor, as arbi- trator between the United States and Great Britain in the case of the San Juan water boundary, George Bancroft, representing the United States, declared that the United States had ‘‘six times”’ received an offer of arbitration, and “six times had refused to refer a point where the im- portance was so great and the right so clear’; and when, at last, the question was submitted to the German Em- peror under the treaty of Washington of 1871, the judg- ment of the arbitrator was carefully restricted to a choice between two specified lines. It is a matter of common notoriety that the United States never consented to arbitrate the Alaskan boundary question, which was eventually submitted, not to a board of arbitration, but to a joint commission composed of three repre- sentatives of the United States and three of Great Brit- ain. A final decision was rendered, but only as the result of the fact that one of the British commissioners voted with the three American commissioners. Indeed, President Roosevelt, in his annual message of December 7, 1903, in congratulating the two countries on this settlement, declared that the issues involved were “by their nature incapable of submission to a third power for adjudication.’’ The United States has, however, on various occasions submitted boundary disputes to arbitration, but only under proper restrictions and with 32 Brazil and Peru Boundary Question a clear understanding, as the result of prior discussion, as to what was actually to be submitted. Brazil pur- sued a similar course in her arbitration with the Ar- gentine Republic under the treaty of September 7, 1889, of the question as to the territory popularly called Misiones. The arbitrator was expressly required to pro- nounce in favor of the one or the other of two specified lines. In like manner, by the treaty of April 10, 1897, for the settlement of the boundary between Brazil and French Guiana, it was stipulated that the arbitrator should adopt in his award one or the other of two rivers, or, at his option, a river lying between them. Similar restrictions may be found in the treaty between Great Britain and Brazil of November 6, 1901, for the arbitra- tion of the boundary between Brazil and British Guiana. The modus vivendi between Brazil and Peru, concluded on the 12th of July last, affords the two Governments, in the first instance, an opportunity to reach a settlement by direct negotiation. Such a mode of settlement offers, under the circumstances of the present question, mani- fest advantages, a happy illustration of which may be seen in the terms of the treaty of Petropolis,—a treaty by which the true reciprocal interests of Brazil and Bolivia are wisely recognized and permanently conserved, while a mere territorial compromise, neglectful of the conditions of geography, population and commercial de- velopment, might, whether it was reached by arbitration or otherwise, have proved to be essentially a makeshift. CoLuUMBIA UNIVERSITY, New York, October, 1904. 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