Glass. Book. Fis^4 Ai Digitized by the Internet Archive in 2010 with funding from The Library of Congress http://www.archive.org/details/argumentonquestiOOpr / ARGUMENT ON THE QUESTION OF THE VALIDITY OF THE TREATY OF LIMITS BETWEEN COSTA RICA AND NICARAGUA AND OTHER SUPPLEMENTARY POINTS CONNECTED WITH IT, ^ , ^ SUBMITTED TO THE / t ,\ Arbitration of tlie President of tlie Dnited States of America, FILED ON BEHALF OF THE GOVERNMENT OF COSTA EICA BY PEDRO PEREZ ZELEDON, Its Envoy Extbaokdinaex and Ministee Plenipotentiary IN THE United States. (Tkanslated into English by J. I. Rodriguez.) WASHINGTON : GrIBSON BeOS., PeINTEES AND BOOKBINDERS. 1887. ^^^:^^«^^::? ^^L^ ^o-nC^-^ ^ ) CONTENTS ANTECEDENTS. Treaty of Guatemala establishing the basis of the arbiti-ation . 5 Points which, according to the Government of Nicaragua, are doubtful and require interpretation, ..... 9 INTKODUCTION, 15 FIRST PART. — Historical Preliminaries. Chapter I. Nicoya ; its annexation to Costa Rica, . . . . . .21 Chapter II. The San Juan river during the Spanish rule, . . . .30 Chapter III. The San Juan river from 1821 to the date of the treaty of 1858, . 38 Chapter IV. Negotiations for the settlement of the question of limits from the dissolution of the Republic of Central America to the year 1858, 45 Chapter V. Continuation of the subject of the foregoing chapter, . . .51 SECOND PART. — Elucidation of the Principal Point. Chapter I. Exposition of the arguments made by Nicaragua in support of the idea that the treaty of 1858 is not valid, . . . .61 Chapter II. The treaty of limits was not made under the sway of any consti- tution, but under a Government temporarily endowed with un- limited powers, 65 Chapter III. The consideration of the exceptional regime existing in Nicaragua in 1858 continued, ......... 70 Chapter IV. The treaty of limits does not imply any reform or amendment of the Nicaraguan Constitution of 1838, 77 Chapter V. The treaty of limits was ratified, not once or twice, but on several repeated occasions by the Nicaraguan Legislatures, . . .82 IV Chaptek VI. The public law of Nicaragua recognizes the principle that the Republic is bound by an international treaty whatever the im- portance thereof may be, ........ 89 Chaptek VII. The whole of the present controversy rests substantially upon the use of a certain word. — Validity of the treaty in good faith, . 93 Chaptek VIII. Repeated acknowledgments of the validity of the treaty by dif- ferent Nicaraguan administrations, ...... 97 Chapter' IX. Costa Rica has never admitted that the treaty of limits required for its validity further ratifications, ...... 104 Chapter X. The second alleged cause of the nullity of the treaty of limits, which is the want of ratification by Salvador, examined in gen- eral, 108 Chapter XI. Whether the treaty of 1858 was, or was not, the result of violence used against Nicaragua by the Administration of Don Juan Rafael Mora, President of Costa Rica, ..... Ill Chapter XII. The Government of Salvador was not an essential party to the treaty of limits, ......... 115 Chapter XIII. The Government of Salvador was, primarily, a fraternal mediator, and subsequently, and in regard to only one secondary clause of the treaty, guaranteeing party of the execution of the said clause, 120 Chapter XIV. The guarantee cannot be construed as a condition of the treaty, . 127 Chapter XV. Examination of the latter reasons alleged by Nicaragua in support of her theory that the tretsty of limits is invalid, . . .134 THIRD PART. — Answer to the questions propounded by Nic- aragua IN REGARD TO THE RIGHT CONSTRUCTION OF THE TREATY OF LIMITS. Chapter I. Whether the starting-point of the border line is movable as the waters of the river, or whether the Colorado river is the limit of Nicaragua, and whether the waters of the San Juan river can be deviated without the consent of Costa Rica, . . 139 Chapter II. "Whether men-of-war or revenue cutters of Costa Rica can navi- gate on the San Juan river, ....... 155 Chapter III. Whether Costa Rica is bound to co-operate in the preservation and improvement of the San Juan river and the Bay of San Juan, and in what manner : and whether Nicaragua can under- take any work without considering the injury which may result to Costa Rica, 162 Chapter IV. Which is the centre of the Salinas Bay ? — Is Costa Rica a party to the grants of interoceanic canal which Nicaragua might make ? What are, in this respect, the rights of Costa Rica ? . . 169 CONCLUSIOK 179 DOCUMENTS. No. 1. Treaty of limits between Costa Rica and Nicaragua concluded April 15, 1858, . 185 No. 2. Decree of the Federal Congress of Central America in 1825 ap- proving the annexation of Nicoya to Costa Rica, . . . 192 No. 3. The state of things existing at the time of the labors of the Con- stituent Assembly is declared to be an extraordinary regime, wherein the constitutional rules in force under regular circum- stances could be laid aside, . . . . . ' . 193 No. 4. Communication from the Costa Rican Secretary of State. — It shows the ardent desire of Costa Rica to settle finally, and for- ever, the questions pending between it and Nicaragua, even at the sacrifice of its own rights and its national pride, . . 195 No. 5. Communication showing the spirit of conciliation and fratesnity which prevailed in the making of the treaty of limits. — The limits between Nicaragua and Costa Rica are, more than any- thing else, internal or domestic jurisdictional boundaries, . 197 No. 6. Congratulation by the United States Minister for the near settle- ment of the differences between Costa Rica and Nicaragua. — VI PAGE. Speech of Gen. Mirabeau B. Lamar, Envoy Extraordinary and Minister Plenipotentiary of the United States in Nicaragua, . 199 No. 7. Note of the Gosta Eican Secretary of State showing the peaceful disposition of Gosta Eica in regard to the question of limits, . 300 No. 8. Communication from the Secretary of State of Costa Eica show- ing that the initiation of the treaty of 1858 was due to the friendly mediation of the Government of Salvador and to over- tures made by Nicaragua subsequent to the repudiation made by the latter of the treaty of 1858, which Costa Eica had ap- proved of, . . 202 No. 9. Act of exchange of the ratifications of the treaty of limits, . . 204 No. 10. Editorial of the official newspaper of Nicaragua on the conclu- sion of the treaty. — It shows the spirit of conciliation and fra- ternity of Costa Eica and Nicaragua. — Thanks given to the Government of Salvador for its friendly mediation, . . . 205 No. 11. Leave-taking of President Mora, . . .. . . . . 207 No. 12. Leave-taking of Senor Negrete, 209 No. 13. Answer to the letter of leave-taking of Col. Negrete. — He is called Apostle of Peace. — Solemn and effusive expression of gratitude tendered to Salvador, ........ 211 No. 14. Editorial of the " Gaceta de Nicaragua " subsequent to the offi- cial leave-taking of Senores Don Juan Eafael Mora and Col. Ne- grete. — The latter is promoted to the rank of General as a re- ward for his services. — The Nicaraguan people feel jubilant for the friendly relations between Costa Eica and Nicaragua, . 213 No. 15. Spirit of concord which presided over the treaty. — Evident ne- cessity and advisability that it should be concluded. — Faculties of the Government to approve it. — Final character of the treaty. — Identical position of Costa Eica and Nicaragua, . . . 214 No. 16. The treaty of April 15, 1858, is communicated to the friendly Governments as a happy termination of the protracted differ- ences between Costa Eica and Nicaragua, . . . . . 217 Vll No. 17. Validity of the Treaty, 220 No. 18. The Constitution of Nicaragua declares that the Nicaraguan ter- ritory borders ou the south by the Republic of Costa Kica. — The Treaty of Limits is raised to the character of fundaruental law, 222 No. 19. The value and force of the Treaty of Limits is recognized, and one of its provisions is thus carried into effect, .... 223 No. 20. Costa Rica is recognized as a party to the contract of the Intero- ceanic Canal, and its acquiescence is asked to make certain mod- ifications in it, 224 No. 21. Official despatch acknowledging that the Nicaraguan territory ends at the Salinas Bay as declared by the Treaty of Limits of 1858, 226 No. 22. The Nicaraguan Chambers direct Article VIII of the Treaty of Limits of April 15, 1858, to be complied with, and the Execu- tive Power carries their decision into effect, .... 227 No. 23. Official despatch showing the validity and strength of the Treaty of Limits and the execution thereof by both Republics, . . 228 No. 24. Costa Rica a party to the contract of Interoceanic Canal ap- proves modifications made thereto, ...... 229 No. 25. Despatch showing the validity and strength of the Treaty of Lim- its, and its execution, ........ 230 No. 26. The Government of Nicaragua asks that of Costa Rica to remove its custom officers from the La Flor river, its former frontier, to the new limit fixed by the treaty of April 15, 1858, . . 231 No. 27. The Government of Costa Rica is invited to assist that of Nicara- gua in improving the port of San Juan del Norte, almost de- stroyed by the deviation of the waters of the San Juan river into the bed of the Colorado river, ...... 233 No. 28. Nicaragua reminds Costa Rica of the duty imposed upon her by the treaty of April 15, 1858, to defend her frontiers at San Juan and the Bolarios Bay, ........ 235 VUl No. 29. Execution of the Treaty of Limits, 237 No. 30. The Nicaraguan Chambers direct the Executive to comply with Art. VIII of the Treaty of Limits of April 15, 1858, . . .238 No. 31. The strict compliance with the Treaty of Limits demonstrated. — The Government of Costa Eica asks the rights vested in it by Article VI of a contract of transit to be expressly secured, . 239 No. 32. The Government of Nicaragua asks for some forces to be situ- ated at Sarapiqui (a confluent of the San Juan river, on the right bank), 242 No. 33. The Nicaraguan Chambers order one of the provisions of the Treaty of Limits of 1858 to be complied with, .... 244 No. 34. Validity and force of the Treaty of Limits. — Costa Eica does not accede to situate forces at Sarapiqui on the ground that it is unnecessary, 245 No. 35. Costa Eica protests against the occupation and deterioration of the Colorado river, ......... 247 No. 36. The Government of Nicaragua recognizes that the Colorado river and its mouth are in Costa Eican territory and belong to Costa Eica, and cannot be closed against the will of the latter, . . 248 No. 37. Nicaragua recognizes still more solemnly that the Colorado river and the right bank of the San Juan river are Costa Eican terri- tory, 250 No. 38. The Minister of Nicaragua in "Washington solemnly declares be- fore the American Government that the Eepublic of Costa Eica borders on the interior waters of Nicaragua, and that its flag is the only one which, in union with the Nicaraguan flag, can float on said waters, ......... 251 No. 39. The Government of Nicaragua approves the declaration of its Minister at Washington, and commends him for his zeal and fidelity, 252 No. 40. The action of Don Luis Molina, Minister of Nicaragua in Wash- ington, is approved and commended. — Executive order reward- IX PAGE. ing the important services of Don Luis Molina, Minister Pleni- potentiary of Nicaragua in the United States, and Mr. Mande- ville Carlisle and Don Fernando Guzman, .... 253 No. 41. Yaliditj' and strength of the treaty of April 15, 1858, . . . 254 No. 42. Validity and strength of the Treaty of Limits, . . • 256 No. 43. The Government of Costa Eica orders an exploration to be made of its lands bordering on the San Juan river, .... 257 No. 44. New expeditions to the banks of the San Juan river, . . . 258 No. 45. Nicaragua acknowledges that Costa Rica borders on the San Juan river, ............ 259 No. 46. Nicaragua promises that the interests of Costa Eica will be re- spected, and that its rights will suffer no detriment, . . 260 No. 47. Costa Eica protests against the deviation of the waters of the Col- orado river belonging to that Republic, ..... 261 No. 48. Despatch stating that a sanitary cordon of Costa Eica has tres- passed on the Nicaraguan frontier as established by the treaty of 1858, 262 No. 49. Nicaragua asks that a sanitary cordon be moved back to the fron- tier established by the treaty of 1858, 263 No. 50. The Government of Costa Eica consents to move back its sanitary cordon to a point indisputably located within the limits estab- lished by the treaty of April 15, 1858, 264 No. 51. Costa Eica shows her disposition to enter into arrangements with Nicaragua to determine by mutual agreement what should be done in regard to communications on the Atlantic side, . . 265 No. 52. Contract Ay6n-Chevalier. — Costa Eica is an essential party to the interoceanic canal. — The contract will be void if Costa Eica does not accept it. — Costa Eica will be invited to make in favor of the grantee such concessions in the Costa Eican territory as Nicaragua makes in her own, ....... 266 No. 53. Editorial of the Nicaraguan "Gaceta" on the Ayon-Chevalier canal contract. — -The San Juan river explicitly declared to be (1869) in great part the frontier of Costa Rica. — The adherence of Costa Rica to the contract recognized to be indispensable. — Costa Rica is asked to grant in her territory what Nicaragua has granted in hers. — All of this presupposes the acknowledged va- lidity of the Treaty of Limits, 268 No. 54. The Government of Nicaragua asks the Government of Costa Rica to request the National Constituent Convention to mod- ify certain articles of a treaty between the two Republics for the digging of an interoceanic canal, ..... 270 No. 55. Project of a road from San Jose de Costa Rica to San Carlos for the export of coffee through San Juan del Norte. — Costa Rica earnestly invited to co-operate in the restoration of the port of San Juan by uniting the waters of the Colorado river with those of the San Juan river, 271 No. 56. Remarks made by the Government of Costa Rica to the Govern- ment of Nicaragua when the latter submitted to the Nicaraguan Congress its so-called doubts in regard to the validity of the Treaty of Limits of 1858, 274 No. 57. Remarks of the Government of Costa Rica in refutation of the doubts entertained by the Government of Nicaragua on the validity of the Treaty of Limits, . . . . . . 279 No. 58. Costa Rica declares that it will keep its custom-houses and main- tain its sovereignty over the whole territory which, according to the treaty of 1858, belongs to it unless other limits are not es- tablished by mutual agreement or arbitral decision, ". . . 290 No. 59. Costa Rica protests against the non-compliance on the part of Nicaragua of Article VIII of the Treaty of Limits, . . . 291 No. 60. The ex$)lanations of Nicaragua as to the non-compliance with Article VIII of the Treaty of Limits are accepted, . . . 294 No. 61. Opinion of the historian of Central America, Dr. Don Lorenzo Montufar, at present the Secretary of State of the Republic of Guatemala, in regard to the Treaty of Limits between Costa Rica and Nicaragua, 296 XI No. 62. Extracts from the "History of Nicaragiia from the Remotest Times to the year 1852," written by order of General Don Joaquin Zavala, President of the Republic, by Seiior Dr. Don Tomas Ayon. Vol. I. Granada : Printing office of El Centro Americano, 1882. — The author of said history gives the name of Desaguadero to the San Juan de Nicaragua river, . . 305 No. 63. Organic laws of Costa Rica in regard to limits with Nicaragua, . 308 No. 64. Failure of Canal Negotiations with the Government of the United States owing to the fact that Nicaragua refused Costa Rica in- tervention in it, . . 316 ANTECEDENTS. ANTECEDENTS. Legation of Costa Eica, Washington, D. C, Jnhj 30, 1887. Sir : I have the honor to enclose a copy of the treaty signed at the city of Guatemala on the 24th of December, 1886, by plenipotentiaries of Costa Rica and Nicaragua with the friendly mediation of the Guatemalan Government, in which it was stipulated that both contracting parties should submit to the arbitration of the President of the United States of America the question whether the treaty of limits celebrated by them on the 15th of April, 1858, is or is not valid. In the name and under special instructions of the Govern- ment of Costa Rica I request you to interpose your good and valuable offices with His Excellency the President in order that he may consent to render to my country the eminent ser- vice above referred to. My Government hopes that such a marked favor will be obtained by it, and grounds its expectations upon the benevo- lent friendship shown to it by your Government and on the traditional interest that this great nation has always felt for the peace, tranquility, and welfare of the other nations of America which are its sisters. With protestations of my highest consideration, I am, your most obedient servant, PEDRO PEREZ Z. To the Honorable Thomas F. Bayard, Secretary of State, 'c&c, c&c, <&c. Legation of Costa Kiga, Washington, D. C, July 31, 1887. SiE : I have been favored by your estimable communica- tion, dated yesterday, in which you were pleased to inform me that His Excellency the President has been pleased to consent to be arbitrator to decide the controversy between Costa Rica and Nicaragua on the validity or invalidity of the treaty of April 15, 1858, celebrated by the two Republics for the final settlement of their questions about territorial limits. It is with great satisfaction that I have received this pleas- ant information, which I hastened to transmit by cable to my Government. Indeed, I never apprehended that the illus- trious Chief Magistrate of this great nation would refuse Costa Rica the inestimable service of adjusting its differences with its neighboring sister, the Republic of Nicaragua. I comply with a very gratifying duty in giving to His Excellency the President and to you yourself, for your own part in the premises, my most expressive thanks for this new testimony of friendship given to my Government. And in so doing I comply, also, with special recommendations of my Government. I shall have the honor to submit to the high consideration of His Excellency the President, within the period marked by the treaty, the grounds and reasons which, in the opinion of the Government of Costa Rica, rendered the validity of the treaty of 1858 evident and irrefutable. With feelings of high esteem, I am, your very obedient servant, PEDRO PEREZ Z. To the Hon. Thomas F. Bayakd, Secretary of State, c&c, dbc, die. Treaty op Guatemala Establishing the Basis of the Arbitkation. Convention hehceen the Governments of Nicaragua and Costa -Rica, to svhmit to the arhitrailon of the Government of the United States the ([uestion in regard: to the validity of the treaty of 15 April, 1858. The Governments of the Republics of Nicaragua and Costa Rica desiring to terminate the question debated by them since 1871, to wit : Whether the treaty, signed by both on the 15th day of April, 1858, is or is not valid, have named, respectively, as plenipotentiaries, Senor Don Jose Antonio Roman, envoy extraordinary and minister plenipotentiary of Nicaragua, near the Government of Guatemala, and Senor Don Ascension Esquivel, envoy extraordinary and minister plenipotentiary of Costa Rica, near the same Government, who having com- municated their full powers, found to be in due form, and conferred with each other, with the mediation of the minister for foreign affairs for the Republic of Guatemala, Doctor Don Fernando Cruz, designated to interpose the good offices of his Government, generously offered to the contending par- ties and by them gratefully accepted, have agreed to the fol- lowing articles : (1) The question pending between the contracting Govern- ments, in regard to the validity of the treaty of limits of the 15th of April, 1858, shall be submitted to arbitration. (2) The arbitrator of that question shall be the President of the United States of America. Within sixty days follow- ing the exchange of ratifications of the present convention, the contracting Governments shall solicit of the appointed arbitrator his acceptance of the charge. (3) Id tlie unexpected event that the President of the United States should not be pleased to accept, the parties shall name, as arbitrator, the President of the Republic of Chili, whose acceptance shall be solicited by the contracting Governments within ninety days from the date upon which the President of the United States may give notice to both Governments, or to their representatives in Washington, of his declination. (4) If, unfortunately, the President of Chili should also be unable to lend to the parties the eminent service of accepting the charge, both Governments shall come to an agreement for the purpose of electing two other arbitrators within ninety days, counting from the day on which the President of Chili may give notice to both Governments or their representatives, in Santiago, of his non-acceptance. (5) The proceedings and terms to which the decisions of the arbitrator are limited shall be the following : Within ninety days, counting from the notification to the parties of the acceptance of the arbitrator, the parties shall present to him their allegations and documents. The arbi- trator will communicate to the representative of each Govern- ment, within eight days after their presentation, the allega- tions of the opposing party, in order that the opposing party may be able to answer them within the thirty days following that upon which the same shall have been communi- cated. The arbitrator's decision, to be held valid, must be pro- nounced within sis months, counting from the date upon which the term alloAved for the answers to the allegations shall have expired, whether the same shall or shall not have been presented. The arbitrator may delegate his powers, provided that he does not fail to intervene directly in the pronunciation of the final decision. (6) If the arbitrator's aAvard should determine that the treat}' is vahd, the same award shall also declare whether Costa Eica has the right of navigation of the river San Juan with vessels of war or of the revenue service. In the same manner he shall decide, in case of the validity of the treiaty, upon all the other points of doubtful interpretation which either of the parties may find in the treaty, and shall com- municate to the other party within thirty days after the ex- change of the ratifications of the present convention. (7) The decision of the arbitrator, whichsoever it may be, shall be held as a perfect treat}^ and binding between the con- tracting parties. No recourse whatever shall be admitted, and it shall begin to have effect thirty days after it shall have been notified to both Governments or to their representatives. (8) If the invalidity of the treaty should be declared, both Governments, within one year, counting from the notification of the award of the arbitrator, shall come to an agreement to fix the dividing line between their respective territories. If that agreement should not be possible, they shall, in the fol- lowing year, enter into a convention to submit the question of boundaries between the two Republics to the decision of a friendly Government. From the time the treaty shaU be declared null, and during the time there may be no agreement between the parties, or no decision given fixing difinitely the rights of both countries, the rights established by the treaty of the 15th of April, 1858, shall be provisionally respected. (9) As long as the question as to the validity of the treaty is not decided, the Government of Costa Eica consents to suspend the observance of the decree of the 16th of March last as regards the navigation of the river San Juan by a na- tional vessel. (10) In case the award of the arbitrators should decide that the treaty of limits is valid, the contracting Govern- ments, within ninety days following tliat upon wliicli tliey may be notified of the decision, shall appoint four commis- sioners, two each, who shall make the corresponding meas- urements of the dividing line, as provided for by Article 2 of the referred to treaty of 15th April, 1858. These measurements and the corresponding landmarks shall be made within thirty months, counting from the day upon which the commissioners shall be appointed. The commis- sioners shall have the power to deviate the distance of one mile from the line fixed by the treaty, for the purpose of find- ing natural limits or others more distinguishable. But this deviation shall be made only when all of the commissioners shall have agreed upon the point or points that are to sub- stitute the line. (11) This treaty shall be submitted to the approval of the Executive and Congress of each of the contracting Repub- lics, and their ratifications shall be exchanged at Managua or San Jos^ de Costa Rica on the 30th of June next, or sooner if possible. In testimony of which the plenipotentiaries and the min- ister of foreign affairs of Guatemala have hereunto signed and sealed with their private seals, in the city of Guatemala, this 24th day of December, 1886. ASCENSION ESQUIYEL. J. ANTONIO ROMAN. FERNANDO CRUZ. Points Which, Accoeding to the Government of Nicaragua, ARE Doubtful and Require Interpretation. Department of Foreign Relations of Nicaragua, Managua, Jxtne 22, 1887. Sir : By order of the President and in pursuance of Arti- cle VI of the Convention of Arbitration, concluded at Guate- mala, between Costa Rica and Nicaragua, I have the honor to communicate to the Government of Your Excellency the points of doubtful interpretation found in the treaty of April 15, 1858, which, in the event foreseen by that Article, this Government proposes to submit to the decision of the arbi- trator. first. 1. Punta de Castilla point having been designated as the beginning of the border line on the Atlantic side, and finding itself, according to the same treaty, at the mouth of the San Juan river ; now that the mouth of the river has been changed, from where shall the boundary start ? 2. How shall the central point of the Salinas Bay, which is the other end of the dividing line, be fixed ? 3. Whether by that central point we are to understand the centre of the figure ; and, as it is necessary for- its deter- mination to fix the limit of the Bay towards the ocean, what shall that limit be ? second. 4. Nicaragua consented, by Article IV, that the Bay of San Juan, which always exclusively belonged to her and over which she exercised exclusive jurisdiction, should be 10 common to both Republics ; and by Article VI she consented, also, that Costa Rica should have, in the waters of the river, from its mouth on the Atlantic up to three English miles before reaching Castillo Viejo, the perpetual right of free navigation for purposes of commerce. Is Costa Rica bound to concur with Nicaragua in the expense necessary to pre- vent the Bay from being obstructed, to keep the navigation of the river and port free and unembarrassed, and to improve it for the common benefit ? If so, 5. In what proportion must Costa Rica contribute ? In case she has to contribute nothing — 6. Can Costa Rica prevent Nicaragua from executing, at her own expense, the works of improvement ? Or, shall she have any right to demand indemnification for the places belonging to her on the right bank, which may be necessary to occupy, or for the lands on the same bank which may be flooded or damaged in any other way in consequence of the said works ? THIRD. 7. If, in view of Article V of the treaty, the branch of the San Juan river known as the Colorado river must be consid- ered as the limit between Nicaragua and Costa Rica, from its origin to its mouth on the Atlantic ? FOURTH. 8. If Costa Rica, who, according to Article VI of the treaty, has only the right of free navigation for the purposes of commerce in the waters of the San Juan river, can also navigate with men-of-war or revenue cutters in the same waters ? FIFTH.. 9. The eminent domain over the San Juan river from its origin in the Lake and down to its mouth on the Atlantic, 11 belonging to Nicaragua according to tlie text of the treaty, can Oosta Rica reasonably deny her the right of deviating those waters ? SIXTH. 10. If, considering that the reasons of the stipulation con- tained in Article VIII of the treaty have disappeared, does Nicaragua, nevertheless, remain bound not to make any grants for canal purposes across her territory without first asking the opinion of Costa Rica, as therein provided ? Which are, in this respect, the natural rights of Costa Rica alluded to by this stipulation, and in what cases must they be deemed injured ? SEVENTH. 11. Whether the treaty of April 15, 1858, gives Costa Rica any right to be a party to the grants of inter-oceanic canal which Nicaragua may make, or to share the profits that Nic- aragua should reserve for herself as sovereign of the territory and waters, and in compensation of the valuable favors and privileges she may have conceded ? In transmitting the above to Your Excellency, and request- ing Your Excellency to acknowledge the receipt thereof, it is pleasing to me to reiterate the assurances of my respect and consideration. FERNANDO GUZMAN. To His Excellency The Minister of Foeeign Relations ' of the Government of Costa Rica. INTRODUCTION. INTRODUCTION. What is the question submitted by the Repubhcs of Costa Rica and Nicaragua to the impartial and final decision of the President of the United States of America ? It is simply : Whether the treaty of limits concluded by both Republics at San Jose of Costa Rica on the 15th day of April, 1858, is or is not valid ? This, and nothing else, forms the subject of the debate. If, as I confidently hope, the question is decided in an affirmative sense, then some other points, of secondary or accessory character, depending upon the subject-matter, and referring to the proper construction to be placed upon the treaty, shall be also considered. If, on the contrary — what in my judgment is little less than an impossibility — the question is decided in a negative sense, then the discussion about limits, which was closed and dis- posed of in 1858 by the treaty, so adjudged to be invalid, shall be reopened and restored to the condition in which it was at that time ; but the determination of the boundaries between the two Republics will not, in any way whatever, be included within the scope of the arbitration. This im- portant subject is left to be disposed of by subsequent nego- tiation between the two Governments ; and if it should hap- pen that no agreement can be reached within the period of one year, then another arbitration, the terms of which will then be discussed and agreed upon, should be resorted to to settle and set at rest the dispute. These are substantially, and as far as the fixing of the sub- ject of the controversy is concerned, bhe provisions of the 16 treaty of Guatemala of December 2, 1886, whicli established the basis of the present arbitration. Under these circumstances it is clear that I must not oc- cupy myself at all, unless incidentally, with anything which refers to limits between one country and the other, because this is not, by any means, the point to be discussed ; and that, therefore, my argument must be directed to show that the treaty of April 15, 1858, is perfectly valid ; that it cannot but be valid in the light of international law ; that it has been always recognized as valid by Costa Eica and other nations equally friendly to the two neighboring Eepublics ; and that Nicaragua herself, for many years, did also recog- nize its validity. But, in order to illustrate in such a manner as is desirable and proper this only subject of the debate, it seems to me unavoidable to preface my work by some historical remarks and refer therein to the ancient boundaries of Costa Rica, which were the San Juan river through the whole of its course, the great Lake, and the La Flor river. But this I will endeavor to do as briefly and concisely as permitted by the purpose I have in view, which is to show how far Costa Eica was carried by its spirit of conciliation and true fraternity when it consented to the treaty of 1858, which deprived her of her historical, as well as natural and legitimate, bound- aries — thus leaving beyond a doubt that if Costa Eica has always acted with proper firmness in defending and asserting its rights in regard to the treaty in question, it is not because the said treaty is in any way or manner whatsoever advan- tageous to Costa Eica, but because the Costa Eican Govern- ment and people have always desired, as they do now desire, that a perfect international agreement be respected and com- plied with. I will,, therefore, begin by making a statement of the ques- tions which the treaty of limits, now under discussion, set at rest and decided, and were, on the one side, the annexation to Costa Eica of the Nicoya district, which took place in 17 1824, when the States forming the Federal Kepnblic of Cen- tral America were organized and defined, and on the other side the ditierent claims set forth by both bordering nations on the outlet (el " Desaguadero ") of the Lake of Nicaragua or San Juan river. Subsequently I will explain the circum- stances which preceded the treaty of 1858. And then I will proceed to examine and refute such arguments as have been made by Nicaragua in opposition to that treaty and for the purpose of invalidating or rescinding it. 2 FIRST PART. FIRST PART. HISTORICAL PRELIMINARIES. Chaptee I. NICOYA ITS ANNEXATION TO COSTA KICA. The Province of Costa Rica, now the Republic of the same name, was created by Emperor Charles V in the year 1540, under the name of " Government of Cartago or Costa Rica," in that part of the Province of Yeragua which the Crown reserved for itself, west of the Dukedom of Veragua, granted in 1537 to the descendants of Christopher Columbus. The limits of this Government extended from sea to sea in latitude, while in longitude they ran along the Caribbean Sea from the Zarabaro or Almirante Bay (Lake of Chiriqui) to the Rio Grande river, now called Aguan or Roman river, west of Cape Camaron, embracing the whole Central American littoral between the 9th and 16th parallels of north latitude. ^ This demarcation expressly included within the jurisdiction of Costa Rica, and as a principal part of this Province, the territory of the mouths of the outlet (Desaguadero), or San Juan river, and a great part of its course, following it up to within fifteen leagues of the Lake of Nicaragua, and running from there toward the north, always at a distance of fifteen leagues from the coast, up to the banks of the Rio Grande river. Therefore the whole of the Atlantic coast of Nicaragua and a part of that of Honduras belonged to Costa Rica. ^ ToRBES DE Mendoza. ' ' ColeccioTi de documentos ineditos de Indias puUi- cada bajo los auspi'cios del Oohierno Espanol.''^ Peralta. " Costa Rica, Nicaragua y Panama, en el siglo xvi, Madrid, 1883," pp. 101, 113, 741 to 754. Leon Fernandez. " Coleccion," &c., vol. iv, p. — . 22 Such was the original province of Costa Rica. From 1560 to 1573 Phillip II gave her new limits, which, on the Atlantic side, were the same now claimed by this Re- public. 1 The province of Nicaragua was made a Government and entrusted to the command of Pedrarias Davila by Royal Let- ters-Patent of June 1, 1527 ; but no limits were then assigned to it, nor were those suggested by Pedrarias approved of by the Court. According to Fernandez de Oviedo those limits extended from the port of La Herradura, 9° 38' north lati- tude, to' the port of La Posesion (or Realejo), 12° 30' of the same latitude. But previous to 1540 it was generally thought that the limits of Nicaragua were from the Chiriqui plains to the Gnli of Fonseca. These boundaries gradually became reduced through the creation of the new provinces of Costa Rica (on the side of the Southern Sea) and of Nicoya, which, from the condition of a simple " encomienda " granted to Pedrarias Davila and his successor and son-in-law, Rodrigo de Contreras, was raised to the station of an independent Mayoralty or " Corregimiento." On the side of the Northern Sea, Nicaragua did not pos- sess, before 1543, an inch of land. The Province of Nicoya consisted of the peninsula of that name, and was situated between the Gulf of Nicoya and the Tempisque, or Del Salto river, and the Pacific Ocean, ex- tending itself towards the north up to the shores of the Lake of Nicaragua. Of the condition of Nicoya as an independent Mayoralty abundant testimony is given by different • royal ordinances and by the chronicler Antonio de Herrera,^ who says : " The following mayoralties are provided for by His Majesty, namely : El Cuzco, the La Plata city, and the mining seat of Potosi, * * * the Province of Nicoya P &c. 'Peralta. '■'■ Costa Bica, Nicaragua y Panama,^'' &c., p. 500. ^ Descripcion de las Indias Occidentales, chap. 31. 23 Herrera -wi'ote in 1 599, or thereabouts. The " Eecopilacion " of Liws for the Indies (Law 1, Title 2, Book 5) refers to the District of Nicoya as being an " Alcal- dia Mayor " or district under the jurisdiction of a Judge of first instance, it being equal in this respect to Chiapas and San Salvador, ancient provinces of the Captaincy-General of Nicaragua, "which, subsequent to their emancipation from Spain in 1821, freely disposed of their destinies, Chiapas annexing itself to Mexico, and San Salvador becoming one of the five States of the Federal Republic of Central America. Nicoya declared her will to be incorporated into the State of Costa Rica. The final incorporation of Nicoya or Guanacaste into Costa Rica, which took place in 1824, has several historical ante- cedents. Don Antonio Gonzalez, President of the " Audiencia " or Superior Court of Guatemala, appointed, in 1572, Perafan de Ribera, Governor of Costa Rica, to be the mayor or " correjidor " of Nicoya. ^ Herrera, the chronicler, gives an account of this incorpora- tion in Chapter XIII of his "■JDescripcion de las Indiasf and it also appears from the important document which Herrera consulted and which, under the title of " Demarcacion y Division de las Indias " (Demarcation and Division of the Indies), has recently been published. It reads as follows : " And Nicoya, forty-eight leagues from tli ; city of Granada, on the coast of the Southern Sea, a mayoralty (corregimiento), composed of Indians, which, together with the Island of Chira, within its jurisdiction, eight leagues from the coast, contains about 4,000 natives paying tribute to the Crown, who formerly, and up to the year 1573, were subject to the " Audiencia " of Panama, for the reason that they had been pacified by captains appointed by that court. But in 1573, Nicoya was incorporated into Costa Rica, the Governor of ' Pekalta. '■'■Qosla Biea, Nicaragua y Panama" «&c., pages 474 and 480. u which sends a lieutenant there. " The Bishop of Nicaragua has there a vicar. Mcoya has a tolerable good port."^ Philip II appointed in 1573 Diego de Artieda, and in 1593 Don Fernando de la Cueva, Governors of Costa Rica and " Alcaldes Mayores " of Nicoya. In this way Nicoya became in fact a part of Costa Kica.^ In 1665 Don Juan "Lopez de la Flor, Governor of Costa Rica, asked the mother country for the final annexation of Nicoya to the Province of his command. The King re- ferred his petition to the Bishop of Nicaragua and to the " Audiencia " of Guatemala. The Fiscal thereof (crown so- licitor) reported in favor of the annexation. Nicoya retained, however, some kind of autonomy, and was absolutely independent from Nicaragua in executive mat- ters to such an extent that, according to a Boyal ordinance of November 24, 1692, the appointment of its " Alcalde Mayor " was to be made directly by the King and not by the Audiencia, which could only provide for that position ad interim in case of vacancy.^ This constant separation of Nicoya from the Province of Nicaragua continued to exist in the middle of the XVIIIth century, as is shown by the " Relacion de la Visita Apostolica, topografica, historica y estadistica del Ilnio. Senor Don Pedro Agustin Morel de Santa Cruz, Obispo de Nicaragua, Costa Rica y Nicoya." (Report of the Apostolic, topo- graphic, historical, and statistical visitation made by the Most Illustrious Bishop of Nicaragua, Costa Rica y Nicoya, Don Pedro Augustin Morel de Santa Cruz). ' Herrera. Descripdon, &c. , chap. xiii. Torres de Mendoza. Goleccion de Dooumentos, &c, vol. xv, p. ,409. Peralta. Costa Bica y Colombia de 1573 d 1881, pp. 50 and 56. ^ Peralta. Costa Rica, Nicaragua y Panama, pp. 497, 512, 648. Torres de Mendoza. Ubi supra. Fernandez. Colecdbn, vol. v, p. 55. Biblioteca Nacional de Madrid. Manuscritos, Codice J., 15. ^ Archivo de Indias de Sevilla. Registro de Reales Cedulas. Cartas y Expedientes delPresidente y Oidores de la Audiencia de Guatemala, file from 1694 to 1696. 25 Bishop Morel enumerates the towns induded ifi each one of the three proAances of his diocese in the following way : The Province of Costa Eica consists of the following towns : Cartago, Laborio, Quircot, Tobosi, Coo, el Pilar, Ujarras (Curredabat), Asserri, la Yilleta, Pacaca, Curru- jiiqui, Barba,' Esparza, Canas, Bagaces, Boruca, Terraba, Cabagra, Atirro, Pejivai, Jesus del Monte, Tucurrique, and Matina." " These are," he saj'S, " the towns which I have seen and the roads which I have travelled. The Province of Nicoya, although one of great territorial extent, scarcely has more than two towns, one of which is the town of Nicoya and the other Cangel. The Province of Nicaragua, which is the third one of this Diocese, consists of the following towns : Villa de Nicaragua, Ometepe island, Granada, Aposonga, San Esteban, Popo- yapa, Potosi, Ampompua, Obrage, Buena Vista, San Antonio, Nagualapa, Chiata, los Cerros, San Juan de Tolu, Apataco, Espana, Diria, Dinomo, Nandaimes, Jinotepe, Diriamba, Ma- satepe, Naudasmo, Jalata, Niquinohomo, Santa Catarina, San Juan, Masaya, Nisidiri, Managua, Namotiva, Mateare, Nagarote, Subtiada, Leon, y Pueblo Nuevo, &c., &c., &c. "7%e Diocese is as vast, Bishop Morel further says, as results from the 'aggregation of the three ahove-namecl Prov- inces." The Episcopal See was Leon. In Cartago, the Capital of Costa Bica, there was a vicar. In the Province of Nicoya there was none ; but at the time of the visitation, the priest, Don Tomas Gomez Tenorio, was appointed to fill that position. Bishop Morel's report enjoys so much credit at Nicaragua that the Government of that Republic directed it to be sent to the historian, Hubert H. Bancroft, in order that he might use it for his " History of the Pacific States of North America." Engineer Don Luis Diez Navarro, in his " Relacion del Reino de Guatemala " (Report on the Kingdom of Guate- mala), addressed to his superior, the General of the Engineer Corps, Marquis of Pozo Blanco, says the following : 26 " On the 19tli of January, 1744, I reached the mountain of Nicaragua, a very rough one, which marks the end of the province of that name, and I went up as far as I explained in the report of my former trip, and I entered the juris- diction OF NicoYA, which, although an "Alcaldia Mayor," separate from the Government of Costa Rica, is reputed to helong to this province.''^ The latter assertion seemed to be so unanswerable to the same Diez Navarro as to cause him to repeat it affirmatively in another of his papers, where he says that the coast of Costa Rica on the Southern Sea extends to the port of San Juan, two leagues far beyond the La Flor River, which is the boundary of Nicoya. Upon these facts, the Spanish Cortes of 1812, then the legitimate and sovereign power in Spain, directed the district of Nicoya, afterwards called Province of Guanacaste, to be annexed to the Province of Costa Rica. United in this way, Costa Rica and Nicoya were called to perform together the most important function of the civilized nations, the exercise of their sovereign rights by means of suffrage ; and the two, made one for political purposes, were caused to elect one rep- resentative to be sent to Spain, to the Cortes, and another to be sent to the local legislature, or provincial deputation, created at Leon, Subsequent to that time Nicoya ceased to appear as an individuality different from Costa Rica, and the local legislature was simply designated as " Provincial Deputation of Nicaragua and Costa Rica." Such was the basis of the political union of Nicoya and Costa Rica, and such the situation of Nicoya was when the provinces of the Captaincy-General of Guatemala proclaimed their independence from Spain. The declaration of independence was signed at Guatemala ^ " Bescripcion del Reino de Ouatemala,^^ printed at Guatemala, 1850. Molina. Bosquejo de Costa Rica. New York, 1850. British Museum. Spanish Manuscripts, add. 17,566. Deposito hidrografico. Madrid. 27 on the 15th of September, 1821, without the distant provinces knowiiis:; anything}; abont that happ}^ event which rendered them free, without costing them a drop of blood or a single effort. The information of what had happened reached them from Guatemala, and they did not take long in making use of their freedom. Some of them proclaimed their annexation to Mexico, under the imperial sceptre of Iturbide, and elected deputies for the Cortes of the new Empire. Others chose to form a Federal Republic, and all of them except Chiapas, which remained attached to Mexico, even after Iturbide's fall, sent representatives to a constituent assembly, which met at Guatemala, and createdthe Federal Republic of Cen- tral America under the political constitution of November 22, 1824. Nicoya, which found itself in an anomalous position be- tween Nicaragua and Costa Rica, took advantage of the cir- cumstances, followed the example of its neighbors, and, by an act of its free and spontaneous will, asked for its annexa- tion to Costa Rica in 1824. The Assembly of the new State of Costa Rica accepted the incorporation of Nicoya, subject, however, to what the Fed- eral Congress should deem best to decide ; and the Federal Congress, by decree of December 9, 1825, approved it and ordered it to be carried out ; the grounds of this decision be- ing that the authorities and the municipal bodies of the Dis- trict of Nicoya had repeatedly requested the separation of Nicoya from Nicaragua and its annexation to Costa Rica, and also that the residents of Nicoya had actually effected the said incorporation during the political troubles of Nica- ragua, and, furthermore, that so it seemed to be required by the topographic position of the district. ^ Subsequently to this period, and in spite of the threats and pretensions of Nicaragua, the people of Nicoya have - See Document No. 2. Peralta. El canal interoceanico, Brussels, 1887, p. 64. 28 maintained their firm decision to continue to be a part of Costa Rica. In 1836 they repelled by force a Nicaraguan invasion under the leadership of Manuel Quijano. In 1838, when the Federal Republic was dissolved, in the midst of the confusion and agitation which caused the National Congress to take the desperate step of breaking the compact of 1824, the Province of Nicoya or Guanacaste felt once more the necessity of again emphatically expressing its desire to remain united to Costa Rica, and, by new acts, it renewed its annexation. The Government of Costa Rica, on its part, has always performed the duties which the incorporation of Nicoya into its territory imposed on it. It has paid the portion of both the colonial domestic debt and the debt contracted by the Federal Republic, which belonged to Nicoya. It has given Mcoya peace, schools, and roads. It has sheltered it from the commotions which have afflicted Nicaragua. It has defended it. It has protected it against all aggressions and threats. In 1842 the Congress of Nicaragua authorized the execu- tive power to incorporate in fact the district of Guanacaste (Nicoya) into the territory of Nicaragua. The Government of Costa Rica looked at this decree as a declaration of war, proclaimed that Guanacaste was an integral part of its terri- tory, and prepared itself for its defence. But Nicaragua did not stand by her provocation. In 1848 representatives of Nicoya signed the constitution of the " Republic of Costa Rica," when Costa Rica deemed it advisable to take this name and cease to be called a " State " of a confederation which had ceased to exist ten years before. The citizens of Nicoya (Guanacaste) ratified, furthermore, their ancient annexation to Costa Rica. In 1856 Costa Rica maintained its rights and the integrity of its territory, invaded at Guanacaste, and repelled the invaders, and co-operated efficiently in expelling them from the Nicaraguan territory. In 1857 Nicaragua attempted again, by means of a decree, to regain the eminent domain and sovereignty over Guana- 29 caste ; but, by another decree of October 27, 1857, she was pleased to declare that she would not oppose the inhabitants of Guanacaste to remain subject to the Government of Costa Erica, should they deem it advisable. The validity of the last decree has been sanctioned by the accomplished facts ; and the inhabitants of Guanacaste re- main yet, because it is advisable for them to do so, under the sovereignty of Costa Rica. Such were the facts and the law in 1858, before the cele- bration of the treaty of limits between Costa Rica and Nicaragua. On April 15, 1858, the said treaty was signed, and by it Nicaragua finally re-acknowledged that the district of Nicoya was included within the territory of Costa Rica. This is the treaty, the validity of which the Government of Nicaragua comes now to contest, after fourteen years of faithful execution on both sides. . Chaptee II. THE SAN JUAN RIVEK DUKING THE SPANISH EULE. The San Juan river, also called Desaguadero (outlet), never belonged exclusively and in all its length to the Province of Nicaragua. Until 1539 it had not been explored or navigated as far as the sea, and then the Province of Nicaragua was understood to be the narrow strip running between the South- ern Sea and the " fresh-water lake of the city of Granada," that is, the Lake of Nicaragua. In the above-cited year of 1539 Alonso Calero and Diego Machuca de Zuazo, in compliance with the desires of the court, which had repeatedly invited the investigation of the secret of the outlet of the fresh-water sea, had the fortune and the glory of finding the mouth of the San Juan river, and pags through it into the Northern Sea.^ It was with abundant reason that Captain Calero, by letter addressed by him to the King,^ reminds His Majesty that the undertaking to which he had given so successful a termination required some reward, and complains that, instead of receiv- ing it, he had been wronged both by Rodrigo de Contreras, the Governor of Nicaragua, and by Doctor Robles, " Oidor " (Associate Justice of the Royal Court) at Panama, each one of whom, he said, was trying to derive profit from what had cost them nothing. Dr. Robles, on his own part, allotted to his son-in-law, Hernan Sanchez de Badajoz, all the lands adjoining the San Jnan river, or " Desaguadero," and entered with him into an agreement for the pacification and submission of the natives, the limits described in the instrument having been from ^ Peralta. Conta Rica, Nicaragua, y Panama, p. 728 and the following. "^ Ibid., page 94. 31 the Dukedom of Veragua to the boundary of Honduras, or Guaymura. ^ On the other hand, the " Council, Justices, and Board of Aldermen " (Concejo, Justicia y Regimiento) of the city of Leon, under date of May 25th, 1540, ^ in making opposi- tion to the pretension of Doctor Robles, gave clear evidence that the " Desaguadero " and adjoining lands did not belong at that time to the Government of Nicaragua. Here are their own words : " We request Your Majesty to take into consideration that the inhabitants of this province, since its discovery, and always, have been incurring expenses for finding out the secret of the outlet (Desaguadero), and of the lands adjoin- ing it, and that they will continue to do the same until the secret is discovered ; and not to allow either the Governor of Veragua, nor Doctor Robles, nor any other person whom- soever, except the Governor of this Province, or his Captains, and the residents or inhabitants of the same, to inter- fere with, or attempt to take away from this province, what IS so NEAR AND CLOSE TO IT, AND HAS COST IT SO MUCH," &C., &C. But there was another party having an interest in the mat- ter, and that was Diego Gutierrez, the Governor of the Prov- ince of Cartago (now Costa Rica^), who asked for him, exclu- sively, the right to populate and reduce to submission the two banks of the " Desaguadero," because this and the lands adjoining it were found within the limits of his command. In support of his petition. Governor Gutierrez referred to the articles of agreement^ he had entered into with the Crown on November 29, 1540, wherein the limits of his jurisdiction had been fixed by saying, " from the limits of the Dukedom ^ See Letter of Dr. Robles to Cardinal Sigiienza, and the Council of the Indies. Peralta. Costa Riea, Nicaragua, &c., p. 741. Royal Letters-patent to Rodrigo de Contreras. Ibid., p. 747. ^ Peralta. Ibid., p. 97, and the following. 'Pebalta. Ibid., p. 89. 32 of Veraguas to the Eio Grande river, on the other side of Cape Camaron." The Desaguadero evidently remained in- cluded, under these circumstances, within the limits of his government. The King set at rest all these differences by his celebrated Eoyal " Cedulas " or " ordinances," issued at Talavera on the 11th of January and 6th of May, 1541, and at Yalladolid on the 14th of May of the same year. In consequence of these decrees the river was divided into two parts. The upper part, 15 leagues long, from its outlet or origin from the lake down, was adjudicated to the Province of Nicaragua ; and the lower part, from the end of the above to the mouth of the river on the Northern Sea, was declared to belong to the Government of Costa Eica. And, as far as the use of the whole river and of the lake for the purposes of navigation and fishing was concerned, it was provided that both the river and the lake should be oommon for the two provinces, without any distinction. And in order to prevent the Governor of Nicaragua from making opposition to this, the Council of the Indies and the King himself ratified and affirmed it, and declared that the penalty of removal from office and a fine of one hundred thousand " maravedis " should be incurred by any one at- tempting to go against it. ^ Diego Gutierrez was succeeded in the government of Cartago, or of the " Desaguadero " as the Bishop of Nicaragua, Fray Antonio de Yaldivieso, also calls it, by Juan Perez de Cabrera ; and the Eoyal Commission, signed at Valladolid on the 2 2d of February, 1549, contains the same provisions as to limits. But the pacification of Cartago, or "El Desaguadero," was still to be accomplished. And , in order to accomplish it, the Crown decreed that Licenciate Ortiz, appointed "Alcalde Mayor " of Nicaragua, should take charge of the colonization of " A 'Peralta. Ibid., pp. Ill, 113, and 128. 33 CERTAIN LAND WHICH IS FOUND BETWEEN THE PROVINCE OF NIC- ARAGUA AND THAT OF HONDURAS AND THE DeSAGUADERO OF THE said frovince, towards the cities of nombre de dios and Panama, between the Southern and the Northern Seas." The instructions communicated to that effect to Licenciate Ortiz were dated at Toledo on the 23d of February, 1560.^ Ortiz could not fulfil his mission, and the " Audiencia " (Eoyal Court) of Guatemala, on May 17, 1541, by order of the King, appointed Licenciate Don Juan Cavallon to be " Alcalde Mayor " of the Province of New Cartago and Costa Rica, and described the limits of his jurisdiction as follows : " As FAR AS THE BOUNDARY OF THE CITY OF NaTA AND ITS JURIS- DICTION, IN THE Kingdom of Tierra firma, otherwise called Castilla del Oro, and then along this line to the limits OF the Dukedom of Veragua, and from the Southern Sea to the Northern Sea up to ' El Desaguadero,' this being included." 2 The same limits were marked down to Cavallon's succes- sor, Juan Vazquez del Coronado ; and the jurisdiction given him over that territory was confirmed by the Crown in Royal ordinances of April 8 and August 7, 1565.^ Vazquez de Coronado, who was " Alcalde Mayor " of Nic- aragua and of Costa Rica about the year 1563, reduced to submission and placed under the jurisdiction of the Province of Costa Rica the Catapas Tices and Votos Indians who in- habited the shores of the Lake of Nicaragua and the banks of the outlet.^ Upon the death of Vazquez, the King appointed Perafan de Rivera Governor and Captain-General of Costa Rica, and ^Peralta. Ibid., p. 170. ^ Peralta. Ibid., p. 194. Pekalta. The Eiver of San Juan de Nicaragua, in Ex. Doc. Senate No. 50, 49th Congress, 2d Session, pp. 36-42. ^ Peralta. Costa Rica, &c. , pp. 378 and 387. * Peralta. Costa Rica, &c. Letter or report of J. Vazquez de Coro- nado, pp. 230, 764, 766, 768. 3 34 the limits of his command were described by Royal ordinance of July 19, 1566, issued at Bosque de Segovia, exactly in identical terms as they had been marked down in Vazquez's commission 1 It appears, also, that among the distributions, " repartimi- entos," of Indians, made by Rivera, there was one which referred to the Botos, or Yotos, Indians, who inhabited the banks of the " Desaguadero," and are mentioned in the " Relacion del descubrimiento " (account of the discovery) of the river, to which I have alluded. The act was done at Cartago on the 12th of January, 1569. In 1573 articles of agreement were signed between the Crown and Diego de Artieda, who was appointed Governor and Captain-General of Costa Rica, wherein the limits of his government were described as follows : " From the Northern TO THE Southern Sea in width, and in length from the BOUNDARY OF NICARAGUA, ON THE SIDE OF NiCOYA, RIGHT TO THE VALLEYS OF ChIRIQUI, DOWN TO THE PROVINCE OF YeRAGUA ON THE SOUTHERN SIDE, AND ON THE NORTHERN SIDE, FROM THE MOUTH OF THE OUTLET WHICH IS TOWARDS NICARAGUA, THE WHOLE TRACT OF LAND AS FAR AS THE PROVINCE OF YeRAGUA."^ In regard to the extent to be given to the mouth of the outlet, the Royal Letters-Patent and Ordinances above cited explain it sufficiently : " As far as El Desaguadero, inclu- sive,'' says the Royal Letter to Lie. Cavallon, the real con- queror of Costa Rica. From 1573 to 1821, in which last date the power of Spain ceased, no alteration was made by the Crown in the limits of Costa Rica on the side of the outlet, although the Governors of Costa Rica exercised on different occasions acts of juris- diction on the cost of Mosquitia. The principal towns of the Province were founded in the ^Peralta. Ibid.^ p. 411. ^Peralta. Costa Rica, &c., p. 497. Torres de Mendoza, Coleccion de Documentos ineditos. 35 interior of the country, but the Governors were careful to ex- ercise jurisdiction over the whole territory intrusted to them. This is shown, among many other things, b}^ the record of the possession taken of the Votos Indians, a ceremony which was performed on the right bank of the Desaguadero, at the place named " El Real de los Votos," on the 26th of February, 1640. It reads as follows : " And on the 26th of February of the said year, the said Captain Jeronimo de Eetes arrived with the said infantry to the house of the said Cacique, whom he found to have with him, called to that effect by him from different parts, eighty persons of all classes and ages, natives of the country, and among them thirty Indians ; and through the interpreter, Diego Latino, an Indian guide, who had been taken from this city, and speaks and understands the language of the said Votos Indians, the said Cacique said to the said Captain Jeronimo de Retes, that in obedience to his orders and trust- ing to his word, such as he had understood it through the said Indian Pisirara, he received him in peace, and by an act of his free will, without duress or coercion of any kind, he acknowledged for himself and for all the other people, native Votos Indians, both present and absent, the allegiance which he owes to the King, Our Lord, as was owed and acknowl- edged by their forefathers ; and he promised to be a faithful vassal, in order that the Holy Gospel should be preached to them, and to continue to be faithful. And this having been heard by the said Captain Jeronimo de Retes, who listened to the reasonings of the said Cacique Pocica, accepted in the name of the King, Our Lord, the said allegiance, which was offered and given, and took actual and bodily possession of the rights of sovereignty on these and all the other native Votos Indians of the province. This was said through the interpreter to the said Cacique, and he promised again and reiterated the said allegiance." (Coleccion de Documentos para la Historia de Costa Rica, by Licenciate Don Leon Fernandez. San Jose de Costa Rica, 1882, Vol. II, pp. 226-27). 36 Betes did this by commission of the Governor of Costa Eica, Gregorio de Sandoval. By virtue of orders and decrees enacted by the King of Spain, subsequent to the instructions given by Licenciate Ortiz, a tract of land, fifteen leagues in extent, adjoining the left bank of the " Desaguadero," was segregated from the ju- risdiction of Costa Bica ; but the whole land which runs from sea to sea, from the southern bank of the river up to Mcoya, in latitude, and in longitude from the Southern Sea to the Es- cudo de Yeragua and the Chiriqui plains, east of Punta Bo- rica, was left to it. In regard to the waters of the river and the lake, the use thereof was not exclusively given either to Nicaragua or Costa Bica, and in this respect, as was natural, all that had been previously decided about the community as to the rights of navigation and fishing in favor of the two bordering prov- inces, on both the river and the lake, was left in force. In the above-cited " Descripcion de las Indias Occiden- tals " (E lition of 1730, p. 25), a map of Costa Bica, Mcoya, and Nicaragua is found ; and there it appears that the De- saguadero river is the border line between Costa Bica and Nicaragua on the side of the Northern Sea. A copy of this map has been appended to this argument. Numerous ancient documents confirm the right of Costa Bica over the right bank of the San Juan river and its waters, the principal among them being the commission given by Velasquez Bamiro, " Visitador " and Juez de Besidencia " (judge appointed to investigate the action of the superior colonial authorities for the Provinces of Costa Bica and Nicaragua), to Antonio Perera and to Francisco Pavon to explore the communication of the two seas (1591) ; the re- port of Diego de Mercado to the King upon the same sub- ject (1620) ; the report made by Don Bodrigo Arias Maldo- nado, Governor of Costa Bica, to the King, on the towns of his Province (1662) ; the letter of Don Juan Lopez de la Flor to His Majesty upon the subject of the occupation of the 37 castle by the English enemy (1G70) ; the reports of Don Jiian Francisco Laens to the King, making a geographical description of Costa Rica and suggesting the means of de- fending it (1675), etc., ctc.i In accordance with these documents, Juarros, the historian of the Kingdom of Guatemala, described the limits of Costa Rica on the side of the Northern Sea by saying " from the month of the San Juan river to the Escudo de Veraguas.''^ In this description all the geographers as well as all the cyclopredias, especially the British, fully agree. Both the sixth edition of the British Cyclopaedia (the first one published after the Independence, some rime between 1826 and 1830) and the last one, recentlj^ published, of this conscientious repository of human knowledge, prove this fact. It will be seen, therefore, that, during the Spanish rule, Costa Rica was first the exclusive owner of the lower half of the river and of the neighboring lands on both sides all along the whole extent of the said half ; and, subsequently, it was exclu- sive owner of the river and of its southern bank, without prejudice to the right that Nicaragua had to navigate and fish in the river, and which Costa Rica had, also, in the same river and in the lake, all of which has been shown by irre- futable documents. „ ^ All these documents can be found in the above cited work of Senor Peralta. See also the work of the same author, The River of San Juan de Nicara- gua, &c., previously cited and translated in Executive Doc. No. 50, Senate, 49th Congress, 2d Session, January, 1887. - Vol. 1, part 1, chap. iii. ' The right of navigation was confirmed in favor of Costa Rica by Royal ordinance, dated at Aranjuez February 6, 1796. Chapter III. THE SAN JUAN KIVEK FROM 1821 TO THE DATE OF THE TREATY OF 1858. If, during the colonial regime, the San Juan river, other- wise called " Desaguadero," did not belong exclusively to Nicaragua, it was less hers afterwards. The Constitution of Costa Rica of January 21, 1825 (Art. XV), explicitly declared that the limit of the national terri- tory on that side was the mouth of the San Juan river ;^ and such was the territory which was acknowledged to belong to that State by the Republic of Central America, without a voice of dissent or contradiction having been raised against it either at the Federal Congress or at the bordering State. This declaration was afterwards repeated and ratified in all subsequent constitutions of Costa Rica.^ Nicaragua enacted her Constitution one year after Costa Rica, in 1826, and marked as her frontier, on the Costa Rican side, the same which had existed during the Spanish rule, when the two countries were provinces of Spain. There was, therefore, between the two Constitutions, in regard to this point, the most perfect accord. The pretension of Nicaragua to extend her frontier beyond the San Juan river was an afterthought which came to her mind long afterwards, and which originated in the idea of getting some compensation for the alleged loss she had sus- tained by the annexation of Nicoya to Costa Rica. Had the latter event never happened, surely Nicaragua would never have thought of denying Costa Rica its rights on the San Juan river. The fact that an ancient fortress named " Castillo Yiejo " ^ See Document No. 63. "■ Doc. No. 63. / 39 (old castle), now possessed by Nicaragua, stood on the southern bank of the river has been alleged as a ground for the claim of that country to exclusiv*? jurisdiction on the said bank and on the river itself. But to do so, it is indispensable either to forget history or to ignore the facts recorded by it. What power, what authority, what jurisdiction could the Nicaraguan authorities exercise over that fortress when it was under the control of the Captain-General of Guatemala, who built it by order of the King and at the expense of the pub- lic treasury of the Kingdom of Guatemala, who repaired it when necessary, and who always kept it under his authority, putting it in charge of wardens and Alcaldes directly appointed by the King ? What power, what authority, what jurisdiction did the Governor of Nicaragua ever exercisd over that fortress, when by express decision of the Council of the Indies it was de- clared that the fortress and its warden should be subordinate, not to the Governor of Nicaragua, but to the Captain-Gen- eral of Guatemala ? ^ The Governor of Nicaragua did not even supply it with provisions, which duty was incumbent upon the Governor of Cartago, as stated by Bishop Morel. ^ When that Reverend Prelate visited the castle, and wanted to introduce in it certain reforms, he addressed the Governor of Nicaragua ; but the latter answered at once that he had nothing to do with that fortress. Then the Bishop turned his eyes to Guatemala, and there his representations were listened to and decided favorably. The agreement entered into between the Crown and Diego de Artieda is a document of such a strength as to have pre- vented Nicaragua from denying that the outlet, or " Desagua- ' Archives of ladies, of Seville. " Secretaria de Nueva Espana." Guate- mala. Letters aad records of secular persons. Years 1726-1736. Peralta, El rio San Juan, &c. , p. 20. Ex. Doc. Senate, No. 50, above cited. '^This is shown by the " Gaceta de Nicaragua " files of 1874. 40 dero," is the limit between the two Republics. But Nicara- gua tries to escape from the difficulty by claiming, without foundation, that ther outlet, or " Desaguadero," and the " San Juan river " are not one and the same. In connection with this aspect of the question the Nicara- guan Foreign Office, presided over by Don Anselmo H. Rivas, expressed itself on June 30, 1872, in the following language : " Your Excellency says that the Colorado river belongs to Costa Rica, not only under Art. II of the treaty of limits, but under the colonial charter issued by King Philip II at Aran- juez, on the 18th of February, 1574, which established the boundary of the Government and Captaincy-General of the Province of Costa Rica, as running from the mouths of the outlet ' Desaguadero ' on the Atlantic (Rio de San Juan) to the Province of Yeragua." * * * " As to the Royal charter of Philip II, to which Your Ex- cellency refers, it is a proven fact that Costa Rica cannot claim that its boundary goes as far as ' the mouth of the San Juan river,' which Your Excellency wishes to confuse with ' the mouths of the outlet, " Desaguadero," ' things which some other Royal orders, several historians and geographers, and even the tradition of the country, have proved to be different. Never has the San Juan river or its mouth been designated by names different from those which they have at present." * * * " Let this be said solely to prove that the claims of Costa Rica to the waters of the Colorado river and the adjoining territory cannot be traced back to the antiquity which Your Excellency wishes to attribute to them, but that they are founded only on the treaty of limits of 1858." The predecessor of Senor Rivas in the Nicaraguan State Department, Licenciate Don Tomas Ayon, author of a " His- tory of NicaraguayVo/;! the times of the Conquest^'' said, also, in a pamphlet published a few days before the foregoing des- patch of Senor Rivas, what I now transcribe, namely : " Which are the mouths of the ' Desaguadero ? ' Laws, historians, geog- 41 raphers, all, iu one word, have, since the days of the dis- covery, given the name of ' San Jnan de Nicaragua river ' to the stream which Ave know now by the same name. No one CALLED IT 'THE DeSAGUADERO,' NOR HAS THE STREAM EVER HAD MORE THAN ONE MOUTH. It is, therefore, evident that the point called by the Royal charter ' the mouths of the " Desagnadero " ' cannot be the mouth of the San Juan river, and certainly that point has to be found far beyond the Colorado river." * * * It is trul}^ astonishing that persons so enlightened and up- right as Senores Eivas and Ayon should have used, in a dis- cussion like this, an argument so much at variance with his- torical truth, and the most elementary notions of ancient and modern geography. Senores Don Anselmo Hilario Rivas and Pon Tomas Ayon affirmatively state that the San Juan river and the "Desagna- dero" are two different things ; but the fact that they are the same thing is witnessed by the Royal ordinance of Valladolid of September 9, 1536, ^ which ordered the exploration of the outlet, Desaguadero, of the Lake of Granada, by the writings of Calero and Machuca, who made that exploration ; by the Council, justices, and aldermen (Concejo, justicia y regi- miento) of the city of Leon ; by all the Governors of Nicara- gua, and by all historians and geographers from Pedrarias Davila to Senor Ayon.^ Engineer Don Luis Diez Navarro says : " The three 'Archives of Indies of Seville. Audiencia of Guatemala, Nicaragua. Register of Royal Ordinances. Peralta. Costa Rica, Nicaragua, &c. , p. 116. "^ Torres de Mendoza. Goleccion, &c. ToKQUEMADA. Monarqiiia Indiana. Peralta. Costa Rica, Nicaragua, &c., pp. 58, 94, 97, 113, 147, 189, 191, 559. 566, 641, 728, 752, and 754. Peralta. Costa Rica y Colombia. See in Alphabetical Index of Geographical Names : Desaguadero, San Juan de Nicaragua. Johnson's American Cyclopaedia ; word, San Juan River, &c. 42 mouths of the San Juan river are the outlet of the famous lakes of Managua and Ntcaragua. They are called San Juan, Taura, and Colorado. Said lakes empty through the same three mouths which connect at six or seven leagues, and form but one river." " From the first mouth, which is called San Juan, from west to east up to the second one, named Taura, there are two leagues ; from Taura to the third mouth, named Colorado river, there are six leagues ; from here to Matina, twenty. The rivers named Meventazon, or Ximenez, and Suerre, or Paeuare, which are large streams, are found between the three above rivers, and can be navigated towards the interior for more than ten leagues. ^ Col. Don Josef Lacayo, formerly Governor of Nicaragua, entirely agrees with Diez Navarro, as shown by his report on the Lake of Nicaragua, and the San Juan river (Relacion de la Laguna de Nicaragua y rio de San Juan), written in 1745. Lacayo affirms, furthermore, that, of the three branches of the San Juan river, the Colorado river is the most abundant in water, and is the most accessible, so that schooners and large vessels can easily enter it. Finally, Senor Ay on, in his "History of Nicaragua," re- futes both Senor Rivas and himself in four chapters of Vol. I of his work, wherein he gives the name of Desaguadero to the San Juan de Nicaragua river. ^ The voluntary errors of such learned statesmen as Senores Eivas and Ayon, who, without taking the trouble even of consulting a geographical dictionary, locate the mouth of the ' Archives of ladies of Seville. Package, " Guatemala," correspondence of the Governors President, years 1758 to 1771. Description of the whole coast of the Northern Sea and part of that of the Southern Sea of the Captaincy-General of this Kingdom of Guatemala, made by Engineer Don Luis Diez TSTavarro in 1743 and 1744. Peralta. Costa Rica y Colombia, p. 178 (edition de luxe) and p. 162 (or- dinary edition). ^ Manuscripts in the Deposito Hidrografico of Madrid. ' See Document No. 62. 43 San Juan river, or Desaguadero, far to the south of the Col- orado, in the valley of Matina, at more than twenty leagues southeast of its proper place, have constituted the ground upon which the supposed rights of Nicaragua rest, and have given color to their pretension of exclusive sovereignty over the San Juan river and its southern bank. Long and troublesome was the discussion which took place between the two Republics, on account of this pretension, from 1838 to 1858, in which the signing of the treaty of lim- its seemed to have settled the question. According to that treaty the right bank of the river, from its origin in the lake up to a point three miles from Castillo Viejo, belongs to Nicaragua. From that point to the sea, down to Punta de Castilla, the whole right bank, as well as the delta of the river, belongs to Costa Rica ; but Nicaragua was given the. sovereignty over the waters. As it is seen, Costa Rica made a very important cession in favor of Nicaragua, and sacrificed for the sake of concilia- tion and fraternity a strip of territory two miles wide and more than one hundred miles long, from the neighborhood of Castillo Viejo up to near the mouth of the Sapoa river, de- viating thereby its boundary, to the grave detriment of its interests and territorial rights, from the shores of the lake and the banks of the river. ^ This treaty, in which Costa Rica is really the party who gives, because it has been proved that the alleged rights of Nicaragua lack foundation both in written history and inter- national law, was concluded, consummated, and complied with by both parties during fourteen years, and it still continues to be the rule or basis of the present territorial status quo ; but Nicaragua, not contenting herself with the advantages secured by her, fifteen years ago, and moved by the desire to enter into ' See Executive Doc. No. 57, House of Reps., 49th Congress, 2d session. Mr. Reynolds to the President, p. 12. 44 contracts of interoceanic canals, right and left,^ without any restraint, decided to argue that the treaty was imperfect. ^ In 1876, or early in 1877, the Government of Nicaragua was negotiating at the same time for the construction of an interoceanic canal with Hon. Hamilton Fish, Secretary of State, in Washington, with Mr. Henry Meiggs, in Lima, and with Mons. Aristide P. Blanchet, a notary in France. The Government of Costa Rica contented itself with informing the Gov- ernment of the United States, represented by the illustrious Gen. Grant and by Mr. Hamilton Fish, of its acceptance of the basis proposed by Mr. Fish. C H A P T E 1? I V. NEGOTIATIONS FOK THE SETTLEMENT OF THE QUESTION OF LIMITS, FEOM THE DISSOLUTION OF THE REPUBLIC OF CENTRAL AMERICA TO THE YEAR 1858. During tlie whole Federal system (1825-1839) the question of Nicoj'a, which was the only one existing between Costa Rica and Nicaragua, remained in suspension. The circum- stances, indeed, were not favorable for the latter nation to invite discussion upon it. It was known that the unanimous opinion, as well as the resolute determination, of the inhabi- tants of Nicoya was to remain united to Costa Rica ; and, if the question would have been urged, the National Congress would have finally ratified the annexation. Such a result was so much the more to be apprehended as the credit which Costa Rica had won through its ability, prudence, and moderation in the discharge of its Federal duties, stood much higher than that of Nicaragua, which always, and at all times, had been the prey of all kinds of civil disturbances. As Nicaragua could expect nothing from the Federal power in reference to the separation of Nicoya, it was better for .her to keep silent. And owing to this, as well as to her an- cient rivalry with Guatemala, and for other reasons, her aim was then to destroy the Federation. All historians agree to the fact that Nicaragua distinguished herself in that respect. The Federation was dissolved in 1838 and 1839. The Nicoyans taking an advanced step in opposition to the pre- tensions of Nicaragua, and at the end of fourteen years of incorporation of its territory into Costa Rica, ratified by new acts their adhesion to Costa Rica. Upon the knowledge of this fact, and foreseeing that Nicaragua, which was then en- gaged in the revision of her Constitution, might perhaps insert in it some provision to the effect that Nicoya formed 4:6 part of her territory, and thus give occasion to some conflict between the two countries, Costa Rica decided to establish a Legation at Nicaragua, and sent there as its Minister one of its very first public men, Senor Don Francisco Maria Orea- muno. It was hoped in Costa Eica that Nicaragua should recede from her attempt to ignore the accomplished facts, especially when seeing the manifest decision of the inhabi- tants of Nicoya not to submit to her rule. Senor Oreamuno expressed the desire that the perpetual annexation of Gua- nacaste should be recognized by Nicaragua, and declared that his country was ready to defend the frontiers of the San Juan river, the great Lake, and the La Flor river. The Nicaraguan Government could not allow such repre- sentations to pass unnoticed, and resorted to the expedient of letting the matter remain in suspense. No conclusion was, therefore, reached, but the Revised Constitution ex- pressed that THE LIMITS OF THE COUNTRY SHOULD BE PIXED BY AN ORGANIC LAW, WHICH WOULD BE A PART OP THE CONSTITU- TION. It was avoided in this way, that the organic law of Nicaragua would contain a provision declaring that the dis- trict of Nicoya belonged to her. According to its own pro- visions, the fixing of the limits was left to an organic law, of secondary chnracter, to be enacted afterwards. The idea entertained by Nicaragua of the firmness and energy of the administration of General Carillo in Costa Rica helped, no. doubt, that result. It must be noticed particularly that the Constitution of Nicaragua of 1838 provided nothing permanently in regard to limits with Costa Rica. This is a fact of extreme impor- tance, as will be seen hereafter. In 1843 Nicaragua sent to Costa Rica a legation, in charge of Licenciate Don Toribio Tijerino, and this officer pre- sented a claim for the restoration of the district, together with its products and accessions, as might have been the case if the claim would have referred to a simple pledge. But he had not been given any authority to make or to entertain 47 any proposition of arrangement, and, as it" is easy to con- ceive, his mission did not bring forth any fruit. In 1846 Costa Rica had to pass through an exceptional crisis. Coffee, its principal export product, had experienced remarkable depreciation in the foreign markets, and could not stand competition, owing to the high freight that it had to pay when carried by the way of Cape Horn. It was of vital importance, and worthy of any sacrifice whatever, to have a passage open to the Northern Sea, that is, the Atlantic Ocean. The old port of Matina could not answer the purpose, owing to insuperable obstacles, and no recourse was left except making the exports through San Juan del Norte. As shown before, Costa Rica had always had a perfect and indisputable right of joint ownership in the San Juan river ; but, as the harbor and bay were then occupied by Nicaragua, Costa Rica decided to make an effort, and seek for a settle- ment, which, setting aside interminable discussions, would en- able its Government to carry into effect the purpose above referred to. To this end it sent to Nicaragua Senores Madriz and Escalante, with such instructions as proper, to treat with her Government. The pretensions of Nicaragua were so exorbitant that neither the Government nor the Congress of Costa Rica, in spite of their determination to yield all that was practicable for the sake of obtaining an immediate adjustment, could approve of the arrangements made. Then it was when Nicaragua, for the first time, carried her territorial pretensions on the side of the San Juan river as far as the neighborhood of Matina, and when she suggested, as a compromise, that the territory between Matina and the San Juan river should be divided equally between both countries. She demanded besides a tribute to be paid to her for the transit of Costa Rican mer- chandise through the San Juan river ! In 1848, the Government of Costa Rica made another at- tempt to obtain from Nicaragua an equitable settlement, and accredits to her a Legation which it entrusted to Licenciate #8 Don Felipe Molina. Nicaragua appointed on her side, to represent her in the negotiations, Sen or Don Gregorio Juarez. Sen or Molina submitted several projects which he himself considered afterwards to have been of unreasonable conde- scension ; but nothing was obtained. " Senor Juarez says Molina (Memoria, page 37) agreed to, and signed, one day, a convention, and on the following day he came and withdrew his signature, and explained that his Government had disap- proved of his action." Subsequently, while in London, Senor Molina received in- structions of his Government to enter into negotiations with Senor Castellon, the Minister of Nicaragua, and the latter Government was urged to instruct him accordingly. But no instructions were received by Senor Castellon. In 1852 the Washington Cabinet, through its Ministers, Mr. Bancroft and Mr. Lawrence, kindly offered its mediation, but its good offices did not prove to be more successful than all the former efforts. The negotiations initiated in this re- spect were afterwards continued with Senor Marcoleta, the Nicaraguan Charge d' Affaires at Washington ; but this officer demanded that Costa Rica should sacrifice either the district of Nicoya, which by no means could be given up, or the right bank of the San Juan river, and the river itself, which since the foundation of the colony had been, and is, one of its principal exits to the Atlantic, and which will afford to it a proper communication with both seas when the work of the Interoceanic Canal shall be accomplished. Under this condition of affairs, and owing to a great ex- tent to the stubbornness of Nicaragua in attempting to exclude Costa Eica from the San Juan river, Nicaragua fell into the hands of the adventurers who had gone there under the leadership of William Walker, whom the people of Leon had received, strewing flowers before him in his passage. The dignity and sovereignty of Central America having been trampled down in this way, Costa Kica was first in get- ting ready to defend the soil of the common countr;f . What 49 Costa Kica did, and what enormous sacrifices it had to suffer for the expulsion of Walker, history has recorded. The single fact that the struggle, together with the cholera which it brought to the country, carried away from Costa Kica, ac- cording to the best calculations, fifteen thousand precious lives, will be sufficient to give an idea of the magnitude of those sacrifices.^ If Nicaragua suffered in like proportion, or more, perhaps, than Costa Rica, the undeniable fact remains, however, that Costa Rica had taken no part in calling the foreigners. The Walker war had not yet terminated when the Nicara- guau people began to show their distrust of Costa Rica, and demanded her to abandon the positions which she, with the blood of her children, had conquered on both banks of the San Juan river, up to that time an open road for the in- vaders. It was not easy for Costa Rica to carry her sacrifices to such an extreme, much less when each mail brought news of a fresh invasion, and when the efforts of Costa Rica in opposing Walker and his followers had naturally caused her to incur their profound hatred and exposed her to their ven- geance. Things having come in this way to such a condition as to render a rupture between the two countries almost inevitable, Costa Rica, although at that time stronger than Nicaragua, de- cided to resort to conciliatory measures, and by decree of No- vember 9, 1857, invited all the governments of Central America to put an end to the dispute, by the decision of a body of rep- resentatives appointed by them to that effect, who should agree by unanimous vote to all matters of common interest. Costa Rica could, but did not want to, dictate to Nicaragua. And as it was impossible for her to sacrifice her own cause, and for the common safety of Central America it was neces- sary that peace, union, and harmony should be preserved, ' Streber. Census of Costa Rica, year 1864. Walker. War of Nicaragua, &c. 4 50 she preferred that all pending questions should be treated before a Central American Diet. Subsequently to this step, which was fruitless, and when no possibility appeared to exist of preventing the question from being settled by force of arms, when further negotiations entrusted to Don Emiliano Quadra and General Don Jose Maria Caiias had also failed, the Government of the Republic of Salvador had the generosity to oJffer its mediation, and this was gladly and gratefully accepted by both parties. The interposition of Salvador brought things once more upon the ground of conciliation. CHArTER V. CONTINUATION OF THE SUBJECT OF THE FOREGOING CHAPTER. The Minister appointed by Salvador, who was Colonel Don Pedro Eiomulo Negrete, made first liis appearance be- fore tlie Cabinet of Managua, then he came to Costa Rica, then he returned to Nicaragua, and always and in every re- spect he did all that could be desired to make his mission a success. On the part of Costa Rica, General Don Jos^ Maria Canas was appointed to treat the question. A similar appointment was made by Nicaragua in the person of Doctor Don Maximo Jerez. And both Ministers, in union with Colonel Don Pedro R. Negrete, met at San Jos^ of Costa Rica. That was, no doubt, the last and supreme effort of both countries, with the efficient assistance of a friendly government, to put an end to a question which was both ancient and apt to give occasion to a fratricidal war. Then a settlement was reached. True it is that it abridged the rights of Costa Rica by throwing its limits back far away from the Great Lake, the La Flor river, and in part from the banks of the San Juan river itself — limits all of them which, as shown in the preceding chapters, indubitably be- longed to it ; but it is true also that the rights of Costa Rica as to the rest were recognized, and that by the settlement, peace, harmony, and good order between Costa Rica, Nicar- agua, and the whole of Central America, were to be secured. The line drawn by the Canas-Jerez treaty was marked as follows : " The dividing line between the two Republics, starting from the Northern Sea, shall begin at the extreme end of Point Castilla, at the mouth of the San Juan de Nicaragua 52 river, and it shall run along the right bank thereof up to a certain point, three English miles distant from Castillo Yiejo (the old castle), said distance to be measured from the exterior works of that fortress to the point above named. From here, and taking the said exterior works as centre, a curve shall be drawn which shall run all along the said works parallel to them, always at a distance of three English miles, until reach- ing another point beyond the castle and two miles distant from the right bank of the river. Hence, and always keeping at the distance of two miles from the right bank of the river, and following all its windings, it shall continue westwards as if to meet the Sapoa river until reaching the source or origin of the said San Juan river at the lake. From here it shall continue parallel to the right shore of the lake, always at the distance aforesaid, until reaching the Sapoa river, where the parallelism shall cease and the line shall coincide with the stream. From the point of contact, which shall be as aforesaid, two miles distant from the lake, an astronomical straight line shall be drawn up to the centric point of the Salinas Bay, on the Southern Sea, where the frontier between the two contracting Republics shall terminate." As it is seen, the above line caused Costa Rica to recede from her natural and legitimate frontiers. The extent of territory which Costa Rica gave up in this way is shown, therefore, to be considerable ; but its impor- tance certainly would be undervalued if it were to be appre- ciated solely by its superficial measurement. The sacrifice will not be estimated rightly except by taking into account the topographical situation of these tracts of lands and the fact that they lay on the banks of a river which is destined to be the principal interoceanic canal in the world, and on the shores of a first-class mediterranean sea, as the Lake of Nicaragua is, and on the isthmus between that lake and the Pacific Ocean, through which the above said canal will run. It was provided in the treaty that Costa Rica should have the right to navigate the San Juan river from its mouth on 58 the ocean up to three miles this si(h^ of Oastilh) Viojo and the community of sovereignty on the bays of San Juan and of Sahnas. General Don Tomas Martinez, Provisory President of Nic- aragua, had been invested by the Constituent Assembly of that Republic, at that time in session, to which he had reported in full the situation, ample and unlimited faculties to get over its diflficulties as he might deem best, by means of treaties, which would not need ratification by the same Assembly, except only in case that the agreements made and entered into by him should prove to be at variance with the secret instructions simultaneously communicated to him. Then, and only then, the ratification by the Assembly was necessary. In compliance with this decree, President Martinez ap- proved of and ratified the treaty of April 15, 1858.^ No one has ever said that he exceeded his instructions. The decree by which he approved of and ratified the treaty reads as follows : " Tomas Martinez, the President of the Republic of Nic- aragua : " Whereas, General Maximo Jerez, Envoy Extraordinary and Minister Plenipotentiary of Nicaragua to the Republic of Costa Rica, has adjusted, agreed upon, and signed, on the fifteenth instant, a treaty of limits, fully in accordance with the hases ivhich,for that purpose, were transmitted to him, hy way of instructio7is ; finding that said treaty is conducive to the peace and prosperity of the two countries, and recipro- cally useful to both of them, and that it facilitates, by remov- ing all obstacles that might prevent it, the mutual alliance of both countries, and their unity of action against all attempts of foreign conquest ; considering that the Executive has been duly and competently authorized, by legislative decree of Feb- ruary 26th ultimo, to do everything conducive to secure the 'See Doc. No. 16. \\ 54 safety and independence of the Republic ; and by virtue, fur- thermore, of the reservation of faculties spoken of in the executive decree of the 17th instant : " Does hereby ratify each and all of the articles of the treaty of limits made and concluded by Don Jose Maria Canas, Minister Plenipotentiary of the Government of Costa Rica, and Don Maximo Jerez, Minister Plenipotentiary of the Supreme Government of Nicaragua, signed by them on the 15th instant, and ratified by the Costa Rican Govern- ment on the 16th. And the additional act of the same date is likewise ratified. " Given at Rivas on the 26th day of April, 1858. " TOMAS MARTINEZ. "GREGORIO JUAREZ, '■^ Secretary y On the side of Costa Rica the treaty was ratified without difficulty ; and as its conclusion was deemed to be a happy event for Central America, and more especially for the Re- publics immediately concerned in it, the exchange of the ratifications was made with unusual solemnity by the Presi- dents of the two Republics personally, attended by their re- spective Secretaries of State, and with the intervention of the Mediator Miiiister, Colonel Negrete. With the act of exchange of these ratifications, the old question, whiph so often had caused both countries to come to the very verge of unpleasant situations, was settled and set at rest. The Nicaraguan Executive took, however, a step further, and submitted the treaty to the Assembly. This was done, not because necessary, for the treaty, according to the terms of the decree of the Assembly, was valid without such a requisite ; nor because such a submission was required as a matter of form, since the ratifications had been exchanged, and this exchange is a formality which never follows, but precedes legislative sanction ; but because of the importance 55 of the matters involved in it. And the Assembly came then and added its supreme sanction to the treaty by decree, which reads as follows : "Number 62. "The Constituent Assembly of the Republic of Nicaragua, in use of the legislative powers vested in it, decrees : "Article only. The treaty of limits concluded at San Jose on the 15th of April, instant, hetween General Don Maximo Jerez, Minister Plenipotentiary from this JRepvhlic, and General Don Jose Maria Canas, Minister Plenipotentiary from the Republic of Costa Rica, with the intervention of Colonel Don Pedro Eomulo Negrete, Minister Plenipotentiary from Sal- vador, IS HEREBY APPEOYED. " To THE Executive Power. " Given at the Hall of Sessions of the Constituent Assem- bly in Managua, on the 28th of May, 1858 — Hermenegildo Zepeda, Vice-President ; Jose A, Mejia, Secretary; J.Miguel Cardenas, Secretary. " Thereupon : Let it be executed. National Palace, Man- agua, June 4th, 1858 — Tomas Martinez." In consequence thereof the treaty was published in the Official Journal,! ^nd the text thereof was communicated as a law of the Republic to the diplomatic body, both foreign and national. The same thing was done at Costa Rica, The Constituent Assembly framed and enacted subsequently the Constitution of the Republic, and, by its Article I, de- clared that all special laws on limits formed part of the Con- stitution. By virtue of this provision the treaty of April 15, 1858, was clearly and indisputably embodied in the funda- mental charter of that country. The Costa Rican Constitution, which, in the following ' Gaceta de Nicaragua, No. 15, May 28, 1851. 56 year, December 26, 1859, was promulgated, in describing the limits of the Republic on the side of Nicaragua, set forth the same line as established by the treaty of April 18, 1858 ;^ and this solemn enactment did not give rise to any protest on the part of Nicaragua. The treaty continued to be in force and observed by both par- ties for fourteen years, during which it served as a basis for the Constitutions, laws, and mutual relations of the two countries. In 1869, when the men and the circumstances of 1858 had long passed aAvay, Costa Eica enacted a new Constitution, ^ and defined by it its frontier on the side of Nicaragua, as had been done before, in accordance with the treaty of 1858 ; and no protest was heard, either from the political powers of Nicaragua, nor even from the private press of that country. On the contrary, some documents of utmost importance, corroborative of the strength and vigor of the treaty of limits, emanating from the Nicaraguan Congress and Executive, were published in that year. The germ of the dispute sprung up out of the displeasure which Nicaragua experienced with the measures taken by the administration of Don Jesus Jimenez, some time afterwards, to stop the destruction, by inhabitants of Nicaragua, of cer- tain forests in the Costa Kican territory, between the regions of the Rio Frio river and the plains of Tortuguero, which the former used to invade in search of rubber. That circum- stance prepared or opened the way to the ignoring of the treaty ; but the withdrawal by Costa Rica, in 1870, of her adherence to the agreement Ayon-Chevalier, decided it. Don Tomas Ayon, as Minister of Nicaragua in Paris, had entered into an agreement with Mr. Michel Chevalier for the building of a canal in the valley of the San Juan river, until reaching the Pacific Ocean. Chevalier and Ayon, well know- ing the rights of Costa Rica, and the terms of the treaty of 1858, had set forth by one of the clauses of their agreement ' See Document No. 63. * See Document No. 63. , d 57 tliat the consent of Costa Rica was essential for its validity. Costa Rica consented to it, but Nicaragua delayed for a while, and soon it was discovered, also, that Mr. Chevalier had no means to comply with the obligations he had con- tracted. Thereupon Costa Rica withdrew its consent. This step irritated Nicaragua, or rather Senor Ayon, who was then the Nicaraguan Secretary for Foreign Relations, and had been the author of the agreement ; and considering that it would be better for Nicaragua to act by herself, independ- ently of Costa Rica, in all matters concerning interoceanic canals, the Nicaraguan Executive reported to Congress and set forth that it entertained some doubts about the validity of the treaty of limits, which, in its opinion, ought to have been ratified by two subsequent legislatures, and had been only by one. The Nicaraguan Congress heard, not without profound sur- prise, these new and strange views about the treaty, but de- cided nothing whatever in the sense of its validity, or nullity. It followed that course which seemed to it to be most pru- dent and uncommital, which was to keep silent. Sixteen years have passed since, and the Nicaraguan Congress has never dared to pronounce itself in favor of the alleged nullity, al- though the relations between the two countries have been sometimes strained to the extreme that in 1876 a rupture seemed to be imminent, and that for a long time all official and commercial intercourse between them remained suspended. Congress by this action, besides postponing a disagreeable solution of the problem, indirectly, but plainly, acknowledged that such alleged doubts were groundless. Subsequent to the denunciation of the treaty there were still two attempts of arrangement. One took place in 1872, when the Presidents of Costa Rica and Nicaragua, General Don Tomas Guardia and Don Vicente Quadra, held, at the request of the former, an interview at the City of Rivas. And the second was the treaty Castro-Navas of January 19, 1884. Both projects failed. 58 Different questions, arising out of tlie anomalous condition in wliicli the riglits of both parties found themselves under these circumstances, such as trespasses on the frontiers on one and the other side, questions on navigation of the Colo- rado river, and also of the San Juan, &c., &c., have been dis- cussed during these sixteen years. They all depended upon the principal question, which is the treaty ; but they all have been decided by common agreement, and given origin to the status quo of 1858. So it is that, even under these circum- stances, if it is true that there has been a protracted discus- sion between both countries on the theoretical validity of the treaty of limits, it is also true that, practically, the treaty of limits has never ceased to regulate, or govern, the relations between Costa Eica and Nicaragua. PART SECOND. PART SECOND. ELUCIDATION OF THE PRINCIPAL POINT. Chaptek I. EXPOSITION or THE ARGUMENTS MADE BY NICARAGUA IN SUPPORT OF THE IDEA THAT THE TREATY OF 1858 IS NOT VALID. What reasons has the Government of Nicaragua alleged, in support of its pretension, that the stipulations of the treaty of 1858 are not binding upon it ? That the said treaty, although ratified by the Assembly of 1858, was not ratified as it ought to have been, to be valid, by the subsequent Legislature ; That the Government of Salvador, an essential party to the treaty because of having interposed its guarantee, did not ratify it ; And that the said treaty deeply wounds the sovereignty of Nicaragua, and is, to a great degree, injurious to her inter- ests, and depressive of her dignity and autonomy. No systematic and complete exposition of the reasonings of Nicaragua against the treaty can be found anywhere in the diplomatic correspondence of the Nicaragua foreign of- fice ; and for this reason I have been myself compelled, in order to speak intelligently, to peruse all that has been writ- ten on the subject, whether officially or unofficially, in the Republic of Nicaragua. I shall try to set forth, as faithfully as possible, all the ar- guments that have been made. It is said that the treaty of 1858 was signed under the sway of the Constitution of 1838 ; and that, therefore, in order to make the treaty binding upon Nicaragua, each and 62 all of the formalities and requisites provided for by the Con- stitution ought to have been complied with. Every irregu- lar proceeding not established and sanctioned by that Con- stitution was illegal, unauthorized, and productive of no effect. By the treaty, Nicaragua ceded to Costa Rica a great por- tion of the national territory, as defined by her Constitution, namely, the whole district of Mcoya, and a portion of the right bank of the San Juan river. And that cession involved an amendment to the Constitution, for which, according to the express provisions of the same, the national consent was required to be given not only by one Assembly but by two subsequent Legislatures. The Assembly of 1858 which ap- proved the treaty did not act as a constituent assembly, but "as a legislative power ; and so it itself declared in the pre- amble of its decree of ratification, therefore establishing in an implicit way the necessity of a second approval. In com- pliance with Article 149 of the Constitution, the treaty ought to have been ratified by two Legislatures ; but it was ratified only by one. It was not sufficient that some of the formalities required should have been complied with ; but it was neces- sary that all of them, without any exception, should have been fulfilled. The treaty of limits never reached perfection ; it never had any effect between the contracting parties ; it al- ways remained in the condition of a project or a proposition ; it has never been taken as a basis for legislation, or for regu- lating the relations between Nicaragua and Costa Rica ; and if Nicaragua has given notice to Costa Rica of certain conven- tions, entered into by her, in regard to interoceanic canals, she has done so, not by virtue of the treaty, but because of the desire that the enterprise of the canal would not find any obstacle in a dispute about limits which ought to be smothered beneath the great interests to be created by that colossal work. And the proof that the treaty never reached perfec- tion is that Costa Rica in 1869 asked Nicaragua to ratify it. This is the argument of the Government of Nicaragua, set forth in all its force, in regard to the first point. As to the 63 second, which is the alleged nullity of the treaty of limits for want of ratification by the Government of Salvador ; and as to the third, which is the alleged injury to the interest, au- tonomy, and dignity of the Republic, the Nicaraguan Foreign Office has limited itself to make only assertions, without stating a fact, or giving a single proof, or showing any reason upon which they may be founded. But as the Nicaraguan ex-Secretary of State, Don Tomas Ayon, the father and creator of the present controversy, published a pamphlet entitled, " Considerations on the ques- tion of territorial limits between the Republics of Nicaragua and Costa Rica," in which he extensively occupied himself in the discussion of this point, I have thought it pertinent to refer to it in this place, and show" the manner of his reasoning. " Nicaragua found herself," he says, " absolutely prostra- ted by both the severe civil war of 1854 and the national w^ar against the filibusters ; the treasury was empty ; there was no armament ; discouragement had taken possession of all minds ; the heart of the Nicaraguans palpitated still with gratitude for the co-operation of Costa Rica in the national war ; and under these circumstances the President of Costa Rica, Don Juan Rafael Mora, made his appearance, and with arms in his hands demanded a treaty of limits, in which Nicaragua should cede to Costa Rica as much as he was willing to ask. So it was done, and the treaty of April 15, 1858, was the painful miscarriage brought about by that act of violence." But Nicaragua wanted to be protected against new sur- prises on the unpopulated parts of the banks of the river and on the lake, and required that the two nations should bind themselves not to wage at any time, under any circumstances, even in a state of w'ar, hostilities of any kind against each other, either on the port of San Juan del Norte, nor on the San Juan river, or the lake of Nicaragua ; and the Govern- ment of Salvador, through Minister Senor Negrete, guaran- teed the faithful and exact compliance with that provision. That special guarantee caused the Government of Salva- 64 dor to become one of tlie contracting parties ; but the treaty was not ratified either bj the Executive nor by the Congress of Salvador. It is known that all the clauses of a treaty are considered as conditions of each other, and that if one of them fails the whole treaty fails. The guarantee was a condition upon which Nicaragua contracted an obligation, and as it failed Nicaragua cannot T3e considered as bound to respect the treaty. Every clause in a treaty has the same force as a condition, the failure in the performance of which invalidates the whole. It is a truth beyond discussion that a treaty has no effect until the suspensive condition therein contained is complied with. Therefore, as long as the ratification of the treaty of limits by the Government of Salvador is not proved, no one of the contracting States must consider itself bound by it. It is indubitable that, even if the treaty of limits had been ratified by Nicaragua, such ratification would not have been sufiicient to carry it into execution, since it was, besides, nec- essary that the Government of Salvador, which intervened as guarantor or surety for the fulfilment of Article IX, should ratify the treaty. Therefore the treaty of limits has no eftect. Such is the conclusion reached in the statement made by the Nicaraguan ex-Secretary of State, Don Tomas Ayon. As to the last point, neither the Government nor anything printed have gone beyond the mere assertion of the facts without proof or explanations, as above stated. The arguments of the Government of Nicaragua to con- sider itself released from the obligations of the treaty of 1858 being, therefore, known in a general way, it is time to enter into its analysis and refutation ; and this I shall do, dividing the matter in as many chapters as are required to convey a clear idea of the subject. Chapter II. THE TREATY OF LIMITS WAS NOT MADE UNDEK THE SWAY OF ANY CONSTI- TUTION, BUT UNDER A GOVERNMENT TEMPORARILY ENDOWED WITH UN- LIMITED POWERS. The treaty of April 15, 1858, was not concluded, approved, ratified, promulgated and carried into execution under tlie sway of the Constitution of 1838, but under tlie extraordinary and transitory circumstances of a regime in which the Constituent Assembly of that year exercised, in an unlimited manner, the whole power of the National Government^ — a regime which was created, subsequent to the civil struggles of 1854 to 1857, by the fusion and harmonization of the two parties, which under the names of Conservatives and Democrats, or Granadine and Leonese, had made on each other until then uncompromising war. The Nicaraguan Government of 1858 was not born out of the Constitution of 1838, nor out of that of 1853, but out of a revolution ; and it was simply what in the public law is called a de facto government. So it is easy to prove, by simply re- membering the political vicissitudes of Nicaragua during the three years of her noisy civil war.^ On the 5th of May, 1854, the legitimate government of . Nicaragua had been intrusted to General Don Fruto Cha- morro, who had been elected in full accordance with the pro- visions of the organic law of 1853, and who had been recog- nized, inside and outside the country, as a constitutional Governor. But Senor Chamorro belonged to the Conservative party, ' This statement is based upon the facts reported by the official press of Nicaragua, the " Anuario de Ambos Mundos," and the History of the Nic- araguan war by Walker. 5 66 and the hatred between this party and the one called Demo- cratic had to lead the country into grave disasters. It was on that memorable date that Gen. Don Maximo Jerez, and many others among his followers exiled from Nicaragua by Chamorro, succeeded in surprising the garrison of the port of Kealejo, and in carrying their victorious arms as far as Leon. There they organized a provisional government, at the head of which they placed Don Francisco Castellon, formerly a minister of Chamorro and his rival in the last election ; and this Government was accepted and recognized by a considera- ble part of the country. In the meantime Chamorro concentrated his forces in Granada, the stronghold of his principal followers, and pre- pared himself for the struggle. The State saw itself divided, therefore, into two great hos- tile bands, one presided over by the legitimate Government, Conservative or Granadine, which supported the Constitution of 1853, then in force, and the other by the Eevolutionary Government, Democratic or Leonese, which supported, as it alleged, the principles of the former Constitution of 1838, then abolished. The struggle was stubborn and cruel ; and, when the Leonese party saw itself doomed to perish, called to its assistance the adventurer, William Walker, who arrived in Nicaragua in June, 1855. The cholera, which, at that time, ravaged the country, caused both belligerents to pay it their tribute by carrying off their leaders ; but the place of Chamorro was filled by Dr. Jos^ Maria Estrada, and that of Castellon by Don Nazario Escoto, and the struggle continued with still more fury. Foreign assistance inclined things in favor of the Leonese party, and on the 23d of October, 1855, General Corral, in the service of the Conservative Army, and with powers which he said he had received from Estrada, on the one side, and 67 Walker, in tlie name of tlie Democratic Government, on the other, signed a treaty by which a new Government was or- ganized, and the civil war was terminated. This treaty was afterwards ratified by the Democratic Gov- ernment. The new mixed Government was constituted as follows : President, Don Patricio Eivas, of moderate opinions. Secretary' of War, General Corral, Conservative. Secretary of Foreign Relations, General Jerez, Democrat. The rival Governments of Estrada and Escoto disappeared from the political arena. The new Government was recognized at home and abroad ; but behind it the sinister figure of Gen. Walker, Chief Com- mander of the Army, carefully watching for the moment of taking possession of the power, prominently showed itself. The outrageous assassination of the Secretary of War, exe- cuted by Walker under color of military justice, with the knowledge of and without opposition from the Rivas Cabinet, which was powerless to prevent it, afforded that occasion. Eivas and Jerez, tired of being mere instruments in the hands of the ambitious foreigner, pronounced themselves against him. Then Walker proclaimed Don Eermin Ferrer Provisional President of Nicaragua ; and subsequently, under a sham election said to have been made under the constitution of 1838, proclaimed himself President; and there were distinguished Nicaraguans, such as Vigil, Pineda, Valle, and hundreds of others, who accepted, recognized, and supported those admin- istrations. Such was the blindness of the political passions and the confusion of things in Nicaragua. In view of the new turn which the events had taken, Es- trada, then in Honduras, repealed and repudiated the treaty of the 23d of October, which had transferred the power to Don Patricio Rivas ; but Don Patricio Rivas himself con- tinued to maintain, on his part, that the only legitimate power of Nicaragua was represented by him. ^ 68 ' Walker counted, however, with great elements for resist- ance, both inside and outside the country ; and it was neces- sary for Nicaragua that the forces of Costa Rica, Salvador, Honduras, and Guatemala should come to her assistance to expel Walker, as they did on the 1st of May, 1857, from the Central American soil. The Government which then remained standing was the government of Don Patricio Rivas, born out of the treaty of the 23d of October ; but it did not satisfy the aspirations of either the Leonese or the Granadine party, which prepared themselves to enter again into a new struggle, until securing absolute control for the conqueror. The two commanders of the rival forces. Generals Don Maximo Jerez and Don Temas Martinez, succeeded in reach- ing an agreement by which they divided the power among themselves, and formed a duumvirate, which put an end to the administration of Rivas, and initiated the reorganization of the country. Blood had been shed in torrents for the Constitutions of 1838 and 1853 ; and Jerez and Martinez thought that it was advisable to promulgate a new organic law, and convoke for that purpose a Constituent Assembly. At the same time they ordered also a general election for the ojfice of President of the Republic. Popular vote decided in favor of Martinez ; and the Assem- bly which met in November declared all that had been done in Nicaragua during the revolutionary period to be null and void, and ratified the Presidential election. It was in this way that the Government of Castellon and his rival Estrada, the Government of Don Patricio Rivas, both before and after the expulsion of Walker, the administrations of Ferrer and Walker, and even the -duumvirate of Martinez and Jerez, were ignored and repudiated as if they had never existed ; and all their acts, laws, decrees, decisions, orders, grants of land, letters of citizenship, treaties, promissory notes, contracts, and obligations of all kinds, became null 69 and void, and adjudged to be without value or effect of any kind. Everything was embraced in the repudiation decreed by the Assembly. The constituent body ratified, nevertheless, such decrees of the duumvirate as had been issued for the reorganization of the country. This Assembly, where all the parties were represented, con- stituted itself, with the general consent of the country, as the supreme ruler of the destinies of Nicaragua. The Martinez Government lent to it unconditional support, and everything pointed to one object, which was the consolidation of peace and the re-establishment of order. The principle of legality represented by Estrada and by the Constitution of 1853 was left buried under the rubbish heaped up by anarchy ; and the triumphant legality was the one represented by the Constituent Assembly, which was the last and crowning step of the revolution. Chaptee III. THE CONSIDERATION OF THE EXCEPTIONAL REGIME EXISTING IN NICARAGUA IN 1858 CONTINUED. The Assembly undertook ttie great work of the political organization of Nicaragua in November, 1857, and the new Constitution did not appear until the 19th of August, 1858. During the time which intervened between the former and the latter date the Assembly exercised unlimited powers, both constituent and legislative, without restriction of any kind. That body was not a mere constituent congress in the ordi- nary sense of the word. It was much more than that ; it was a great national convention. Now it acted as a Legislature, then as a Constituent Congress ; now as forming but one chamber, then as a Congress consisting of two co-ordinate Houses ; now enacting organic laws, and then promulgating municipal statutes ; creating tribunals, amending codes, ap- proving treaties, and promulgating the Constitution. Its om- nipotence was superior even to the principle that the laws have no retroactive effect, which is found at the very root of the legislation of all countries. The Assembly which acted in that way certainly exercised an unlimited power, the greatest which can ever be exercised among men constituted in society, and did not find itself under the sway of any written law regulating its action or embarrassing its movements. Instances of such assemblies are not frequent in the lives of the nations, but they always occur after great social revolu- tions. I need not cite examples which are perfectly well known. These extraordinary constituent bodies are vested, owing to their own nature, with the plenitude of power which con- 71 stitutes sovereignty. All that the Sovereign can do they also can accomplish. The abolished Constitution of 1838, which was the flag harbored by the revolution of May, 1854, was the starting- point of the labors of the Constituent Assembly, as provided by the decree of Convocation ; but the provisions of that organic law, thousands of times trampled upon b}^ the bellig- erent parties, affected nothing, nor could they affect the ac- tion of the Assembly. That Constitution forbade the Chief Executive Magistrate to command the army ; but the Assembly decreed the con- trary. That Constitution forbade the members of the Legislative body to be, simultaneously, members of the Supreme Court of Justice, or ofl&cers and clerks in the Executive Depart- ment ; but the Assembly enacted otherwise. That Constitution provided that the Presidential term of office should be two years ; but the Assembly decided that it should be four. That Constitution established the principle that no retro- active effect should be given to laws ; but the Assembly en- acted laws to which it gave retroactive effect ; something monstrous in theory, but claimed to be necessary, absolutely indispensable in practice, under those circumstances, as ground and foundation for a new legal order subsequent to revolution and anarchy. Shortly after the meeting of the Constituent Assembly difficulties arose between Costa Rica and Nicaragua, as al- ways happened, on account of the unfortunate question of limits. Nicaragua thought that Costa Rica had invaded her territory, and prepared herself for defence, and issued a de- cree, under date of the 25th of November, 1857, declaring war against Costa Rica. In addition to that decree, and foreseeing that some ar- rangement could be made with Costa Rica, the Assembly enacted another decree, dated on the 10th of December fol- 72 lowing, by which it vested in the Executive, in full, all the powers which, in regard to foreign relations, had already been agreed to be given it by the Constitution which was then under discussion, and which some months afterwards, in August, was in fact promulgated. Let us see now which were those faculties. I shall copy from the Journal itself of the Assembly of the 25th of No- vember, 1857. I find there the following passage : " It was resolved that Section 8, relative to foreign rela- tions and negotiations of treaties, should be divided into two parts, and, upon consideration of each one, they were finalfy approved, as follows : " 1st. To conduct the Foreign Eelations ; to appoint and accredit diplomatic ministers of all grades, agents and consuls of the Kepublic, near the Foreign Governments and courtsj; to receive or admit those sent here, when legally authorized " 2d. To negotiate treaties and all other contracts whatso- ever interesting the Republic, whether with companies or private persons, both native or foreign ; to adjust treaties of peace; to celebrate concordats with the Apostolic See — all these acts being subject to ratification by the Legislative Power, and to exercise the patronage according to law." And as in this section, section 17th of the project has been embodied, the Assembly went on to discuss the other two.^ In use of these faculties, agreed upon by the Assembly since the 26th of November, and sanctioned and put into operation on the 1st of December, owing to the urgency of the occasion, the Government of Gen. Martinez entered into negotiations with Costa Eica to rid the country of a war which was believed to be imminent. Supposing that the Constitution of 1838 would have had any value at all up to that time, as rule of action for the supreme powers, the decree of December 1st, as far as for- ^ These faculties are the same described in Sees. 14, 15, and 16 of the Nicaraguan Constitution of Aug. 19, 1858. 73 eigu relations and international treaties were concerned, buried it tinally in the grave of history. But circunistaiices were most grave, and the Constituent Assembly did not content itself with the facilities it had given the Executive for the termination of the difterences between Costa Rica and Nicaragua. And, for the sake of obtaining an immediate arrangement, it issued on the 5th of February, 1858, the decree which reads as follows : "The Constituent Assembly of the Republic of Nicaragua, in use of the legislative faculties with which it is invested, decrees : " Article 1. For the purpose that the Executive may com- ply with the Decree of January 18th instant, ^ the said Ex- ecutive is hereby amply authorized to act in the settlement of the difficulties with the RepidjUc of Costa Rica in such 7nan- ner as it may deem best for the interests of both countries^ and for the independence of Central America, without the neces- sity OF eatification by the legislative power. " Article 2. Such treaties of limits as it may adjust shall be final, if adjusted in accordance with the bases which sepa- rately will be given to it ; but, if not, they shall be suhject to the ratification of the Assembly. " To the Executive power. " Given at the Hall of Sessions in Managua, on the 5th of February, 1858. " Timoteg Lacayo, President. " IsiDOEO Lopez, Secretary. " Pablo Chamoeeo, Secretary." This decree was ordered to be executed by the President ^By this decree the Constituent Assembly had ordered new Commissioners to be appointed, who, under new instructions, should enter into the nego- tiation of treaties of peace, limits, friendship, and alliance between Nic- aragua and Costa Rica, which would harmonize their respective interests, and alfirm the independence of the two countries, said treaties being sub- ject to the ratification of the Assembly. 74 on the same 5th day of February, and was duly published and promulgated. By virtue of its provisions the Executive power became vested with the faculty of making a final treaty with Costa Rica, without needing legislative ratification, provided, how- ever, that as far as limits were concerned it would con- form itself to the bases or instructions separately communi- cated to it, the ratification being indispensable only in case that the stipulation made in regard to limits should deviate from those instructions. The treaty of April 15, 1858, was made under the sway of this decree, and of the former one of December 1, 1857 ; not at all under the sway of the Constitution of 1838. The separate instructions or bases framed by the Assem- bly were respected and complied with, and no legislative ap- proval was, therefore, necessary. In proof thereof the fact can be mentioned that the treaty was published as a law of Nicaragua, and no objection was raised in the Assembly against its language. Had the Executive deviated from the instructions or bases given it by the Assembly, such an ac- quiescence would never have been witnessed. The subsequent administrations of Nicaragua have made stupendous efforts of Imagination to find out flaws in the treaty of limits ; but it has never occurred to them that Gen. Martinez went beyond the instructions given him by the Assembly of 1858. This is a good indication that the treaty was made in compliance with them. The treaty did not require, as I have said, legislative rati- fication ; but for the greater approval thereof the said ratifi- cation was granted to it by the decree of May 28, 1858.^ The treaty of limits became, then, for Costa Rica, for Nic- aragua, for the friendly nations, and for the whole world, an international compact, inviolable and sacred. The Constituent Assembly went on with its work, and in the new organic law. Article I, it provided as follows : " This decree has been embodied in First Part, Chapter V, p. 55. 75 " The laws on special limits foum a tart of the Consti- tution." The treaty of April 15, 1858, wliicli was, as it is noAv, a law of Nicaragua, and was, as it is now, a law on special limits, became, therefore, a part of the Constitution, and acquired, in a still more firm and solemn manner, the char- acter of Nicaraguan organic law. It is therefore shown by proof of irresistible character : 1st. That the treaty of limits was not adjusted under the sway of the Constitution of 1838. 2d. That it was initiated, concluded, ratified, exchanged, promulgated, and carried into execution under a transitory regime where the Government was vested with unlimited and extraordinary constituent power. 3d. And that it was made a part of the Nicaraguan Con- stitution of 1858. What now remains to be known is whether the action of a special and extraordinary regime, if a government of political reorganization, such as the one existing in Nicaragua in 1858, can bind the country. The answer is very simple. It is given by the well known authority of Don Carlos Calvo. " A de facto government, recognized by the other States and in intimate communion with the mass of the nation, possesses in regard to the national territory the same powers, the same faculties, as the legitimate government which it re- placed. All that is done by it within the limits foreseen and determined by the domestic public law of the State, wdiether for acquiring or for alienating territory, is aibsolutely valid and irrevocable. This is a principle of high practical im- portance from an international point of view."^ Of the opinion of Calvo are also Yattel, Phillimore, Heffter, Kent, Ortolan, Bello, Riquelme, Pradier Fodere, Halleck, Garden, Desjardins, and Kltiber, cited by him. ^ Droit international theorique et pratique, vol. 1, § 711. T6 Whicli was the domestic public law of Nicaragua at the time of the conclusion of the treaty ? Was it, perhaps, the Constitution of 1838 ? No ; by no means. We have seen already, that, as far as foreign relations in general, and es- pecially as far as negotiations with Costa Rica about limits were concerned, the said constitution had been abrogated by specific decrees enacted, ad hoc, by that Constituent As- sembly. The domestic public law of Nicaragua, at the time of the conclusion of the treaty of limits, consisted in the decrees of December 1, 1851, and February 5, 1858. The treaty was adjusted in conformity with those decrees. It was, besides, ratified by the Constituent Assembly. It was subsequently made a part of the Constitution of 1858. Its validity is therefore indisputable, and its firmness un- controvertible. Chapter IV. THE TREATY OF LIMITS DOES NOT IMPLY ANY REFORM OR AMENDMENT OF THE NICARAGUAN CONSTITUTION OF 1838. Even if taken for granted that, at the time of the approval of the treaty of limits, Nicaragua found herself under a reg- ular constitutional regime, where the charter of 1838 ruled supremely, and not under the extraordinary circumstances above explained, still the efficiency and validity of the com- pact would not be less. The Constitution of 1838 did not define the frontier of the Nicaraguan territory on the side of Costa Rica. And the reason of this omission was, that Nicaragua had then a question pending with her neighbor about limits, and the Constituent Legislature did not want to prejudge it in any way whatever. Therefore it chose to preserve the status quo, and declared, in general terms, that the national territory reached on the southeast as far as the frontier of Costa Rica ; and it added that the boundaries with the bordering States should he marhed hy a law which wovld rnalie a part of the Constitution. Here is the text of this provision : "Article II. The territory of the State is the same as was formerly given to the Province of Nicaragua ; its limits be- ing, on the east and northeast, the sea of the Antilles ; on the north and northwest, the State of Honduras ; on the west and south, the Pacific Ocean ; and on the southeast the State of Costa Rica. The dividing lines with the boeder- iNG States shall be marked by a law which will make a part of the Constitution." The Constitution, therefore, was left incomplete ; but it provided for the means of completing it, which should be by a law. 78 To say that tlie Charter of 1838 carried the frontiers of the State as far as the Jimenez river on the Atlantic an'cl the Salto river on the Pacific, as has been held during the last years, is to assert what the Charter itself does not say. It is to contradict openly the provision which it contains, and which postpones, until a law for that special purpose should be enacted, the determination of the bordering line. It will be remembered that when, in 1838, Nicaragua was engaged in the reform of the Constitution of 1826, Don Francisco Maria Oreamuno, Envoy of Costa Rica, requested Nicaragua, finally, to recognize the annexation of Nicoya to Costa Rica, and that, as no treaty upon the subject could then be made, and there was gome hope of an amicable set- tlement more or less speedy, but sincerely and ardently de- sired by both parties, it was decided, in order that the new Constitution should not offer any obstacle to the said settle- ment, that the language thereof would be that which has al- ready been quoted. In view of Article 2 of the Constitution of 1838, as framed under the circumstances aforesaid, it can be asserted without any hesitation that the said Constitution of 1888 did not mark out the boundary between Nicaragua and Costa Rica ; nor could it do so reasonabl}'^, since there was an interna- tional controversy pending upon that very point, loyally con- ducted on diplomatic grounds, the solution of which, amica- bly and peacefully, was desired by both parties ; and it was not proper that, by a declaration ex abrupto, made by one of them, by its own authority, the cause would be decided in its favor, and the question would be placed on the ground of accomplished facts. A public treaty, clothed with all the force of a law, was destined to supplement and complete the Constitution in which it had to be embodied so as to become a part of the organic law of Nicaragua, and as long as the treaty was not concluded the Constitution ought to remain incomplete. Such is the clear right and natural construction, as well as 79 the only possible one, to be placed upon the constitutional text, and any other which may be attempted to be placed upon it will be violent and in open contradiction to its letter and spirit. So that the treaty by which the unfortunate question of limits between Costa Rica and Nicaragua was set at rest, far from involving or implying a constitutional reform or amend- ment, was, as expressed by the text of the charter itself, the natural complement of it. It became a part of it since the very moment in which the character of a national statute was given to it. It was not necessary, under these circumstances, for the treaty of limits to be approved either by a Constituent As- sembly, convoked ad hoc, or by two subsequent Legislatures. There was no amendment to make, and there was only one void to fill. This was to be done as the Constitution provided ; that is, by means of a secondary law or statute, which was the treaty of limits. Even supposing that this treaty was concluded under the sway of the Constitution of 1838, Article 194 of the same, which refers to constitutional amendments or reforms, an article on which the Government of Nicaragua grounds its argument, has nothing at all to do with the question, be- cause Article 2, which created the void, provided at the same time for the manner of filling it. Article 2, there- fore, and not Article 194, is the one at which it is necessary to look for the decision of the point. This construction, which, as has been proved, is the only admissible one, was also the one which the supreme authori- ties of Nicaragua placed upon the domestic pubhc law of that country when the treaty was made. Neither the Commission- ers of the Nicaraguan Government, nor the Executive power of that Republic, nor her Constituent Assembly, nor her pub- lic press, nor any person whatever, said then, or even thought, that the treaty of limits would not be binding upon Nicaragua unless subject to special proceedings never before resorted to for the perfection of treaties among nations. 80 It cannot be thought, or admitted, that a whole generation of pubhc men would be ignorant to such a degree of the con- stitutional law of their own country. It cannot be thought, either, that the organic laws of Nic- aragua were then constructed in bad faith, so as to leave the door open to future controversy and afford opportunities to violate pledged faith. The only thing which can be said and thought is that the doubts which occurred to the mind of Secretary Ayon, after fourteen years of mutual and faithful execution of the treaty, on the part of both countries, has no rational foundation. The Assembly which approved the treaty was not an ordi- nary Congress, subject to the provisions of a charter, but an extraordinary Constituent Assembly, which ruled with sov- ereign unlimited power. But even supposing that it was the former, and that the Constitution of 1838 was the rule which should have governed its acts, it is clear that it had perfect authority and power to finally approve that treaty. I have maintained that the arrangement of limits did not imply a constitutional amendment or reform, and I have proved it superabundantly. But in order that even the last vestige of doubt should be vanished in this respect, I beg to be allowed to refer to Article 42, chapter 13, of the Nicaraguan Consti- tution of 1858, which is the one now in force. It reads, as far as this special matter is concerned, in the following words : " Faculties of Congress in Separate Chambersr " It belongs to Congress, * * * 24. To decide by a two-third vote on the following subjects: * * * 3d. All LAWS FIXING THE BOUNDARIES BETWEEN THIS AND THE OTHER Ke- puBLics. "^' * * 5th. The eatification of all treaties, agreements and contracts of canalization, highways and loans ENTERED INTO BY THE EXECUTIVE." Before 1858 the marking out of the boundaries of the country was, according to a provision ad hoc of the Consti- 81 tutioii, a proper subject of a statutory law ; after the Consti- tution of 1858 the exception became the general rule. During half a century, therefore, both before and after the treaty of limits of 1858, it has been held in Nicaragua, as a constitutional principle, that the questions of limits are proper matter for secondary laws or statutes, to be enacted by or- dinary legislatures, without the special requisites or proceed- ings which are necessary for the enactment of organic laws. All the efforts of Dialectics which Senores Aj'on and Ri- vas have made to convey the idea that the treaty in question involved, or implied, an amendment or a reform of the or- ganic laws of Nicaragua, have fallen to the ground before the literal, plain, express, and unmistakable text of the Nic- araguan Constitutions themselves. 6 Chaptee v. THE TREATY OF LIMITS WAS EATIFIED, NOT ONCE OR TWICE, BUT ON SEVERAL REPEATED OCCASIONS, BY THE NICAEAGUAN LEGISLATURES. It lias been shown in the preceding chapters that the treaty of limits was not concluded and approved under the sway of the Constitution of 1838 ; and, furthermore, that, even in case that such a thing should have happened, it would have been sufficient for the perfect validity of the said treaty that the ratification by one Legislature had been obtained because the treaty did not involve any amendment or reform of the organic law. ' ' But in order to follow up and refute in every respect the arguments of the opponent, I will now take it for granted that the approval of the treaty did indeed involve a consti- tutional reform, and that, therefore, two legislative ratifica- tions were required. Under this aspect of the case I shall set forth and prove that not only those two ratifications, but many others subse- quent, have been imparted to the treaty. In 1858 Mr, Felix Belly asked the Government of Nic- aragua for a grant for the opening of an interoceanic canal. In 1859 the petition was referred to the Chambers ; and the Chambers, before taking any action, having in view the .provisiojis of the treaty of limits, decided that the Executive should first cotnply, in fall, with Article YIII of the said treaty,^ and the Executive did as directed. Lately, in the same year, 1859, the same Chambers which had respected and obeyed Article YIII of the treaty of limits, decreed by one of the articles of the law enacted by them in regard to the Belly canal, as follows : ^Documents, Nos. 19 and 30. 83 " x4.rticle 4tli. In case that the line to be drawn, beginning on the Sapoa river on the Lake of Nicaragiia, and endinr^ in the Salinas Bay on the Pacific Ocean, should be considered prac- ticable by the engineers, the company shall be bound to select that line with preference to all others, for the route from the Lake of Nicaragua to the Pacific Ocean, and the route so opened shall be, by the same fact, and all along its extent, the definite limit between the two States of Nicaragua and Costa Eica. If not considered practicable this limit shall remain as it is 71010, siihject to suhsequent regulations.'^ As it is seen, the canal had to follow on the Pacific side, if possible, the same course as the line between the Sapoa river and the Salinas Bay, and become, whether built on one side or the other of the astronomic line marking the boundary, the definitive and permanent limit, forever dividing the two Republics. If the canal was built elsewhere, because the above said route proved to be impracticable, no change should be made on the frontier, which would remain as it was ; that is, as marked by the treaty of 1858, subject to subsequent arrangements. The Legislature and the Executive of Costa Kica adhered to the Belly contract ; and this was promulgated as law both in Nicaragua and Costa Rica.^ Can any one desire a more explicit recognition that the treaty was a law of Nicaragua ? Can any one desire a more authorized and authentic interpretation than the one given by the same Nicaraguan Legislature of 1859 '? The treaty did not require, indeed, any ratification ; but . it was certainly given to it by the Nicaraguan Chambers of 1859. In 1861 the Nicaraguan Government, with the approval of the Legislature, entered into a contract with an American 'Convencion Internacional entre los Gobiernos de Nicaragua y Costa Rica y Don Felix Belly para la canalizacion del Istmo. Managua Imprenta delProgreso, f rente al Palacio Nacional 1859. ^ See Pamphlet named in the preceding note. 84 company for interoceanic transit. When the Government of Costa Eica was consulted about it, in obedience to Arti- cle VIII of the treaty of limits, the latter Government sug- gested, by despatch of the 2d of March, that a special clause should be inserted in the grant saving the rights acquired by Costa Eica under Article VI of the Canas-Jerez treaty of April 15, 1858, which reads as follows : " The Eepublic of Nicaragua shall have, exclusively, the dominion and sovereignty on the waters of the San Juan river from its origin in the Lake to its mouth in the Atlan- tic ; but the Eepublic of Costa Eica shall have, in the same waters, the perpetual rights of navigation between the said mouth of the river to a point three English miles distant this side of Castillo Viejo, for purposes of commerce, either with Nicaragua or with the interior of Costa Eica, through the San Carlos or Sarapiqui rivers, or any other way, starting from the part of the bank of the San Juan river which is hereby established to belong to Costa Eica. The vessels of both countries shall have the power indiscriminately to land on both sides of the river, in the part thereof in which navi- gation is common, without charges or tax of any kind, un- less levied by agreement between the two Governments." And, by note of the 4th of March immediately following, the Nicaraguan Secretary of State replied as follows : "National Palace, " Managua, March 4, 1861. " SiE : The Chamber of Deputies, upon consideration of the remarks made by you under instructions of your Gov- ernment, under date of the 2d instant, has been pleased to resolve as follows ; * * •* " And the Chamber further resolved to communicate to the Department under my charge for the information of Senor Volio, THAT BEFORE RECEIVING THE COPY OF HIS RESPECTABLE OEPICIAL DESPATCH, AND WHEN THE CHAMBER WAS ENGAGED IN THE EXAMINATION OF ARTICLE VII OF THE ABOVE-NAMED CON- 85 TRACT, IT HAD ALREADY RESOLVED TO INSERT A CLAUSE BY WHICH THE RIGHTS OF CoSTA EiCA WERE SAVED, AS SUGGESTED IN THE FIRST rOINT OF THE ABOVE-NAMED OFFICIAL DESPATCH, AND IN SO DOING THE Chamber has done nothing else than complying AVITH one of its MOST STRICT DUTIES." " And, bv order of the President, I transmit it to jou, sub- scribing myself at the same time your most attentive servant, "J. MIGUEL CARDENAS. " To the Licentiate Don Julian Volio, " Envoy Extraordinary and Minister Plenipotentiary " of the Rejyidylic of Costa Rica^ The foregoing despatch is the answer given to the note ad- dressed by Licentiate Don JuhanVoHo, Minister of Costa Rica in Nicaragua, under date of February 23, 1861, sug- gesting to the Government of Nicaragua to save by an especial clause in the contract of transit the rights acquired by Costa Rica under Article VI of the treaty of limits of 1858. Article VII, of the law making the grant in favor of the Central American Company of Transit, enacted by the Nic- araguan Chambers, confirmed and ratified, solemnly, the treaty of April 15, 1858 ; and anticipated the wishes of the Gov- ernment of Costa Rica, founded on the said treaty, by stating that, in doing so, they only complied with one of their most strict duties. In 1863 John E. Russell and Don Jose Rosa Perez sub- mitted to the Government certain propositions intended to be the bases for an enterprise of interoceanic transit through the Nicaraguan Isthmus ; and, the subject having been referred to the consideration of the Legislature, the latter resolved to refrain from taking any action on it until the Executive shoidd^ have complied with the provisions of Article VIII of the treaty of limits concluded vnth Costa Rica in 1858. ^ This w^jS a new authentic recognition by the Nicaraguan legislative power of the fact that the treaty was a law of the ^ Documents, Nos. 30 and 31. 86 Republic. And if the second ratification spoken of would have been necessary, the recognition now made should be considered as such. In 1864 arrangements were undertaken in Nicaragua for •an enterprise of interoceanic canal, at the head of which ap- peared Mr. Bedford Clapperton Trevelyn Pirn, a Captain in the English Navy. The Government celebrated with him a contract, which was submitted to the consideration of the Chambers. And one of the modifications which the Legisla- ture made to the contract was to insert in it the express pro- vision that the contract would have no effect until the Execu- tive should have heard the opinion of the Government of Costa Rica.'^ The territory of Costa Rica was not touched in this case ; but the treaty of 1858 provided that Costa Rica should be heard in all grants of this kind, and the Chambers refused to consent to any omission on the part of the Executive in fulfil- ing an international engagement. We see, therefore, that instead of that second ratification, which in 1871 Secretary Ayon failed to discover, I have shown that actually there have been four, and I should still be able to show a great many more by only slightly perusing the laws of Nicaragua, which seem to be so lamentably un- known or forgotten by some of her first statesmen of the present day. If I open the volume published under the title of " Codigo de la Legislacion de la Republica de Nicaragua en Centro America" (Code of the Laws of the Republic of Nicaragua in Central America), compiled by Dr. and Master Lie. Don Jesus de la Rocha, by order of His Excellency the Senator President, Don Nicasio del Castillo, &c., &c., Managua, 1874, I find on its very first page a description of the territorial division of Nicaragua, made in pursuance of the laws of Au- gust 28, 1858, and March 2, 1859. And that description, ' Pocument No. 33, 87 wliicli I do not copy here, owing to its considerable length, is based npon the treaty of limits with Costa Rica, and does not include, as it could not, in the Nicaraguan territory, the district of Nicoj^'a, which before the treaty had been dis- puted between the two Republics, and which after the treaty had been liually recognized to belong to Costa Rica. The law in which this territorial division appears, and which is the first one of Title 1, Book IV, of the Code of Nicaragua, is the basis of the administration of her Govern- ment in economical and political matters, as well as munici- pal, judicial, electoral, and in all that is relative to general police and public order. So the law itself declares. I do not feel disposed to enter into a minute examination of the domestic law of Nicaragua, and thereby exhibit fur- ther eloquent proofs, certainly to be found abundantly, that the treaty Avas deeply incorporated and embodied — if so it can be said — into all the branches of law, beginning with the Constitution and ending with the most secondary statute. Such a labor is unnecessary ; the proofs already given being sufficient to establish the truth of my assertion. One ratifi- cation was sufficient, and I have shown that four were given. Many and repeated have been, therefore, the legislative confirmations and ratifications made in Nicaragua of the treaty of limits of 1858 ; but the truth is that the Govern- ment of the said Republic does not repudiate that treaty because it lacks the formality of ratification by one Legisla- ture, but because it thinks that it is injurious to its interests. I am not the one who has made this strange assertion. Its author is no less a person than Gen. Don Joaquin Zavala, the Commissioner appointed in 1872 by the Government of Nic- aragua to treat with Dr. Don Yicente Herrera, Minister of Costa Rica. General Zavala, in his despatch of April 8, 1872, expressed himself as follows : " The public opinion of the country rejects the Canas-Jerez treaty, not because it lacks the ratification of one legis- LATUEE, but because since tlie unlucky day in which that docu- ment was signed it has considered it as highly injurious to the interests of the country and depressive to its dignity and autonomy."^ These words, which the Costa Rican Minister, with pro- found surprise and deep sorrow, read in an official despatch addressed to him, were transmitted by him to the Cabinet of Managua ; but this, far from taking them back, gave them, on the contrary, through Senor Don Anselmo H. Rivas, the Secretary of Foreign Relations, by despatch of April 18, 1872, the most complete confirmation. And how could it be expected that those words would have been taken back if, as stated by Mr. C. A. Riotte, the United States Minister in Central America, in his note to Mr. Fish, Secretary of State of the United States, dated in Managua on the 20th of June, 1872, the editor of the official journal pub- licly maintained, in a paper named El Porvenir, that it was a maxim of international law that the stipulations of a treaty must be complied with only when advantageous, or as long as there is no power to break them ? Did not this untena- ble and revolting opinion receive general support instead of condemnation in the Republic of Nicaragua?^ ^ This despatch is inserted in ' ' Documentos relatives a las ultimas nego- ciaciones entre Nicaragua y Costa Rica sobre limites territoriales. Canal interoceanico, Managua, 1873. ^Foreign Relations of the United States in 1873, Vol. ii, p. 738. Chapter YI. THE PUBLIC LAW OF NICARAGUA RECOGNIZES THE PRINCIPLE THAT THE REPUBLIC IS BOUND BY AN INTERNATIONAL TREATY, WHATEVER THE IMPORTANCE THEREOF MAY BE. It lias been seen in tlie foregoing chapter tliat the deter- mination and alteration of the national territory does not belong in Nicaragua to the organic laws, but to statutory legislation. The Mcaraguan Public Law goes still farther, as I am go- ing to show. By the treaty, Zeledon-Wyke of January 28, 1860, Great Britain, up to that time protectress of what is called the King of Mosquitia, recognized the sovereignty of the Eepublic of Nicaragua over the whole territory under him ; but, in 1867, the very same power deemed it advisable to notify Nicaragua that the said Nicaraguan sovereignty over Mosquitia could not be understood to be full and complete, but limited to only those rights which, according to feudal law, the Supreme Lord retained in the domains of his vassals, and consisted only in preventing the fief from being alienated in favor of a third party. The Government of Nicaragua refused to accept such a construction which left to that Republic no more than a nominal sovereignty over a territory which really was an in- tegral part of her dominion, and suggested to Her British Majesty that the question should be submitted to arbitra- tion. The proposition was accepted, and by common con- sent His Majesty the Emperor of Austria was appointed to decide the question. From the very moment in which that matter was referred to arbitration, it was recognized as possible that the decision might be unfavorable, as it was to a great extent, to Nicara- 90 gua, and that thereby the national sovereignty might suffer detriment. Therefore, in order that the treaty of arbitration celebrated with Great Britain should be firm and binding upon Nicaragua, it was necessary that it should be clothed with all and each one of the formalities which the Constitu- tion prescribed. It cannot be believed that a serious Government as the Nicaraguan is, in dealing with such a grave and transcendental matter and with such a Government as that of Her British Majesty, would have indulged in mental reservations and omitted formalities constitutionally required for the validity of the treaty. It must be taken for granted, on the contrary, as has been said, that every required formality was faithfully complied with. But it appears that this treaty, which, no doubt, referred to a question much more important for Nicaragua than the one settled by the treaty of limits of 1858, since it did not involve a simple adjustment of disputed rights, but the affir- mation or negation of her sovereignty over an important portion of her territory which had been formerly recognized by Great Britain, did not obtain, howevee, double legisla- tive APPROVAL. And this being the fact, it seems that it proves by itself, without possible contradiction, that the pub- lic law of Nicaragua, in conformity in this respect with the laws of most civilized nations, recognized the principle that a nation binds itself by its public treaties, even in matters not purely commercial but concerning territorial integrity and the exercise of sovereignty. On June 2, 1881, Emperor Francis Joseph I rendered his decision, which, among other things, declared that the sov- ereignty of Nicara.gua over Mosquitia is not full, but limited ; that the Mosquito King has the right to use his own flag ; that Nicaragua has no right to control or take advantage of the natural productions of the Mosquitian territory, nor the power to regulate the commerce of the Mosquito Indians, &c., &c. And Nicaragua accepted with respect the decision 91 of His Apostolic Majesty, and ordered it to be complied with and carried out faithfully, without thinking for a moment that by invoking the omission of a double legislative ap- proval she might evade the consequences of a decision which indisputably affects her sovereignty and reduces the territory of the Eepublic. Far from that, the oflficial organ of the Government ex- pressed itself at that time in the following words : " Let us congratulate ourselves that questions as old (1865) and embarrassing as these have been settled in such a peace- ful and harmonious way." In view of this precedent it can be affirmed without hesita- tion that according to the Nicaraguan public law, in order to render international conventions firm and valid, no mat- ter Avhat their nature may be, and even when affecting the national territory and sovereignty, it is not necessary to amend the Constitution. Let it not be said that one thing is a treaty of limits and another thing a treaty of arbitration. As public treaties, the one and the other, there is no difference between them ; and, on the contrary, it plainly appears that the same effect, which is the dismemberment of the territory, or the abridgement of sovereignty, can be accomplished in the same way by each of them. If any difference can be found, or suggested, it will be in favor of the direct treaty of limits ; because if something is given up by it, something, or a great deal, is also obtained through it in compensation ; while in the treaty of arbitra- tion the whole thing is placed in danger. For this reason the effects of the treaty of arbitration are graver. The legal principle that the only one who can compromise or submit to arbitration is the same one who has the right to alienate the thing in controversy, is perfectly well known and needs no demonstration. From the point of view of the capacity and of the form of the transaction, there is com- plete identity between alienation, compromise, and submis- sion to arbitration. 92 When the dispute about Mosquitia was submitted to ar- bitration all the formalities and requisites which are now claimed to be wanting in the treaty with Costa Rica should have been also complied with, and, if they were not, their omission proves only that the public powers of Nicaragua did not consider them necessary, according to their constitu- tional law, for the validity of a treaty, whatever its impor- tance might be. Chaptek VII. THE WHOLE OF THE PKESENT CONTROVEESy BESTS SUBSTANTIALLY UPON THE USE OF A CERTAIN WORD VALIDITY OF THE TREATY IN GOOD FAITH. Now, I want to lay aside all that lias been said in the fore- going chapters in support of the perfect validity of the treaty of limits, and place myself on a ground much more favora- ble to the cause of the opponent ; that is, that the treaty really involved a reform of the Constitution of 1838. Even on that gi'ound, which I only accept for the sake of the argument, because it is false, I will show that the approval given to the treaty by the Assembly was clothed with the character of an amendment to the Constitution. If the argument of the opponent is carefully examined it will be found, without any great effort, that the whole of the present discussion rests fundamentally on the use, whether proper or improper, of one word. The preamble of the decree, by which the treaty of limits was approved, reads as follows : "No. 62. " The Constituent Assembly of the Republic of Nicaragua, in use of the legislative faculties with which it is invested, decrees," &c., ed of the Coloi'ado river. Nicaragua Department of Foreign Eelations, National Palace, Managua, December 13, 1859. Mr. Minister : The attention of the Government of Nic- aragua has been forcibly called to the condition of the port of San Juan del Norte, which has been filled up and almost rendered useless on account of the sand which has accumulated in it ever since its waters have abundantly flowed into the chan- nel of the Colorado river ; and such a state of things must also demand the attention of Costa Eica, because the interest of the latter in this subject is not less felt, since by existing TREATIES SHE HAS THE RIGHT of navigation and free import from there. The inhabitants of the town named Greytown have made an effort to collect subscriptions and do such work as possi- ble for the purpose of confining the waters to the channel of the Bay ; and the Government, in spite of the scarcity of the public resources, is trying to raise money among the merchants of the Eepublic, and proposes to employ all the convicts of the State prison, more than 40 in number, to carry on that work, principally by closing, by means of palisades or other proper works, the communication between the San Juan and the Colorado rivers. For such a purpose, and in the persuasion that Costa Eica will co-operate with pleasure in this work, I have been in- structed to invite it to do so, and I hope that you will be pleased to set forth in your answer in what way such assist- ance will be rendered, it being preferable to a great degree 2m that the said assistance be pecuniary, in order to provide for the support of the laborers and furnish them with tools and other implements. I pray you, Mr. Minister, to submit all of this to His Excellency the President of your Republic, to communicate to me his decision, and to accept the sentiments of esteem and consideration with which I subscribe myself your very attentive servant, PEDRO ZELEDON. To The Ministee of Foreign Relations of the Republic of Costa Rica. 235 No. 28. Nicaragua reminds Costa Rica of the duty imposed upon her hy the treaty of April 15, 1858, to defend her frontiers at San Juan and the Bolarios Bay. [seal]. National Palace, Managua, Septemher 5, 1860. Sir : Your Government must certainly be aware that Wil- liam Walker has invaded Central America ; and, as it is prob- able that that bandit may attempt some operation on the side of the river of San Juan del Norte, my Government has taken such steps as proper to protect that frontier and rein- force its military posts. But as accoeding to the treaty of Apeil 15, 1858, as EEAD IN ITS IVtH AeTICLE, BOTH YOUE REPUBLIC AND THIS OUGHT TO TAKE caee OF THE DEFENCE OF THAT LINE, my Government expects that your Government, in view of the threatening danger, will comply with the saceed and inteeesting duty INCUMBENT UPON IT, by sending there such a force as may be necessary to protect the locality and repel the enemy if the invasion should take place through that point. My Government thinks it proper to inform yours, further- more, that another filibustering expedition, under the com- mand of Henningsen, an old comrade of Walker, is now being organized in California, and that it is very probable that they intend to land at some of the ports on the Pacific coast, for which reason it is advisable that sufficient forces are sent to the Salinas Bay, the defence of which is also en- trusted to the Government of Costa Rica. All of which I have the honor to communicate to you by order of His Excellency the President of this Republic, for the purposes above referred to, hoping that you will be 2m pleased to communicate to me the decision that your Govern- ment may reach on the subject. I avail myself of this opportunity to offer you my respects. HEEMDO. ZEPEDA. To The Ministee of Foreign Kelations of the Supreme Government of the Kepublic of Costa Rica. 237 No. 29. Execution of the Treaty of Limits. San Jose, January 25, 1861. Mr. Minister : In order to send back the courier ex pro- feso, whom you Avere pleased to send to this Republic, the President has directed me to tell you that, as he has to consider the contract of transit in compliance with the stipulations of the Canas-Jerez treaty, he has decided that the Costa Rican Com- missioner, who shall leave for your Republic within a very short period, should be the bearer of the said contract and of the decision thereon reached by this Government. With this I leave your favor of the 10th instant answered, and I subscribe myself your obedient servant, A. ESQUIVEL. To His Excellency The Minister of Foreign Relations of the Republic of Nicaragua. 238 No. 30. The Nicaraguan Chambers direct the Executive to comply with Art. VIII of the Treaty of Limits of April 15, 1858. National Palace, Granada, February 25, 1863. Mr. MiNiSTEE : The contract of interoceanic transit, cele- brated between the Government and Don Jos^ Eosa Perez, an authenticated copy of which I have the honor to accompany, together with the proposal upon the same subject made by Mr. J. E. EusseU, having been submitted to the Chambers for ratification, they were pleased to abstain from doing so, AND TO decide IN COMPLIANCE WITH ARTICLE VIII OF THE TREATY OF APRIL 15, 1858, BETWEEN THIS EePUBLIC AND YOURS, THAT THE SAID DOCUMENTS SHOULD BE RETURNED TO THE EX- ECUTIVE IN ORDER THAT THEY, AS WELL AS ANY OTHER PROPOSAL WHICH MAY BE MADE, SHOULD BE SUBMITTED TO THE GOVERN- MENT OF Costa Eica for the purpose of having its opinion ON THEM. In compliance with the above decision, I have the honor to submit to you the said contract and proposal for the knowledge of His Excellency the President, and hope you will be pleased to communicate to me in due time his opinion on them. I have the honor to subscribe myself your attentive servant, PEDEO ZELEDON. To The Minister of Foreign Eelations of the Supreme Government of Costa Eica. 239 No. 31. The strict cnvipUance with the treaty of limits demonstrated. — The Govern'inent of Costa Rica asks the rights vested in it by Article VI of a contract of transit to he expressly secured. To His Excellency the Minister of Foreign Relations of the Republic of Nicarag^ia. Sir : With your estimable note of the 25th of February ultimo this department has received a copy of the contract of transit celebrated between the Government of your Republic and Don Jose Rosa Perez, and also the subsequent proposal of Mr. John E. Russell, all of which has been transmitted to this Government in order that it may express its opinion, as PEOVIDED BY ARTICLE VIII OF THE TREATY OF LIMITS OF APRIL 15, 1858. I hastened to give information of your note to His Excel- lency the President of the Republic, who, after having care- fully examined the documents referred to, has directed me to tell you in answer, as I have the honor to do, what follows : Considering that, according to the above-named stipulation of the treaty of April 15, 1858, the vote of Costa Rica is un- derstood to he advisory in all matters which do not directly af- fect the natural rights of this Republic, nor those which ema- nate from her sovereignty , or the absolute rights of property, or of the common use that it has over certain places at the port of San Juan del Norte^ the San Juan river, the Lake, and the Salinas Bay, my Government has deemed it advisable, and trusts that your Government will consider it in the same way, that the opinion or vote should be extended to some other clauses of the contracts, although they do not directly affect the territorial interests of Costa Rica. The spirit of Article YIII, and the reasons which were con- sidered when it was enacted, were, if we are not mistaken, to provide for the preservation of the common interests in all 240 cases which might produce complications with foreign conn- tries, since it cannot be doubted that such questions affect and endanger the two Eepublics, and much more so under the influence of the events which take place in other points of Central America. Under this point of view, and starting from the remark that the compact has been made with foreigners, whose claims, as shown by experience, may produce great evils and an inter- vention or invasion from abroad which would also threaten the neighboring countries, this Government is of the opinion that, in a contract of this kind, all stipulations which, by their consequences or by their language, may give occasion or pre- text to disputes and to exaggerated pretension must be care- fully avoided, and it is for this reason that I allow myself to call the attention of your Government to the following sug- gestions : * * * * * * * Aeticle 8. For tlie aake of clearness it seetns advisable to 'maJce express mention of the Treaty of Limits of April 15, 1858, saving the rights which Costa Rica has hy virtue of this treaty over the port of San Juan del Norte, the banks of the San Juan river, and the Salinas Bay, and the free navigation in all these waters, expressing that the exclusive privilege of the contractor will not prevent Costa Rica from establishing in the same waters steam navigation for the com- 7nerce with the tributary rivers of its territory, which empty into the San Juan river and the lake, and from exercising territorial sovereignty in all cases in which the transit company should be called to exercise some act of administratio7i, use, or commerce within the territory of the said Republic, or subject to the laws and authorities of the same, as, for instance, in the case of Article 9. ^ * * * * * * Aeticle 17. In consideration of the intimate relations of friendship which exist between this Eepublic and yours, and of the advantages that the enterprise of transit has to derive 241 from its frequent trade with the Costa Rican littoral, it seems to be equitable that the grantee should show in favor of citi- zens of Costa Eica, who would u.se for their commerce the means of transportation and communication of the company, and of those immigrants who would come in number of no less than 10 to settle in Costa Eica, the same liberality and the same franchises as granted to others. If this Government should determine to send European mail by the way of San Juan del Norte and Sarapiqui, the grantee will carry the said mail subject to the postal conven- tions in force and in accordance with Article X of the pro- ject of contract, and XI of the proposal of Mr. Eussell. The ideas which I have the honor to set forth, are also applicable to the proposals made by the representative of Messrs. James M. Brow and George G. Hobson, of New York, it being understood that, in case your Government gives pref- erence to the Eussell-Perez contract, it will be necessary to render the language of the provision clearer and fuller in or- der to mark well the principal points of difference between them. In everything else it is to be supposed that the pro- posing party will accept the same basis as adopted in the former contract. These are the remarks which this Government submits in regard to the contracts which the Nicaraguan Government has submitted to it ; and now the only thing left to me is to assure Your Excellency that the above remarks have been made in the best spirit and looking exclusively at the com- mon good. On the other hand, this Government is sincerely grateful for the sentiments which yours entertains in favor of the faithful and strict fulfilment of the compacts and for the confidence that it shows and the loyalty and righteous- ness of our relations with your Eepublic, our ally and sister. I take advantage of this opportunity to subscribe myself, Your very attentive servant, FEANCISCO M. IGLESIAS. Apeil 1, 1863. 16 242 No. 32. The Government of Nicaragua asks for some forces to he situ- ated at Sarapaqui {a confluent of the San Juan river, on the 7'ight hank). Government House, Geanada, A/pril 23, 1863. Mr. Minister : Mr. Felix Belly, who has recommended himself so much by reason of his former action in Central America, has submitted to this Government a project of inter- oceanic transit and steam navigation in the interior of the Republic, an authorized copy of which I have the honor to enclose to you, /br the pxirposes of Article YIIl of the treaty of April \h,\m'^. With reference to your estimable despatch of the 1st in- stant, relative to the difficulties that lately arose between the Government and the Central American Transit Co., I must inform you, for the knowledge of your Government, that two agents of the said company, duly authorized by it to revali- date the contract which the Government had declared to be void, have just arrived in this city. Up to this date the Gov- ernment has not deemed it advisable to listen officially to the proposals that they have come to make, its reasons to do so being, 1st, that they have not yet paid the sums due to this Republic as tolls for passengers ; and, 2d, because the Gov- ernment thinks that, if not all, some, at least, of the officers of the company are accessories to the piratical and filibuster outrage perpetrated on the 7th instant at the La Yirgen Bay, on board the steamer San Juan, unfortunately in con- nivance with forces of Honduras and Salvador ; but, as in the difficult situation in which Nicaragua finds herself at present it is possible for the company to do some violence to the rights of this Republic, the Government may perhaps be compelled by pure necessity to enter with it into some equitable arrangement of temporary character, but by no 243 means final, which, while bridging over the difficulties of the present moment, enables the Government to do justice when the circumstances may be more propitious. I do not think it to be inopportune in vieiv of the current events to recommend to yoit and the Supreme Government of your country to cause some forces to he stationed at Sarapiqui to meet on that side any emergency that the same events might occasion there. I take advantage of this opportunity to reiterate to you the just considerations with which I subscribe myself, your very attentive and obedient servant, EDUAEDO CASTILLO. To the Hon. The Ministee of Foeeign Eelations of the Su- preme Government of Costa Eica. 244 No. 33. The Nicaraguan Chambers order one of the provisions of the treaty of limits of 1858 to he complied with. Aet. XI. Article XYII shall be stricken out, and the fol- lowing shall be inserted in its stead : " The present contract shall have no effect until accepted by Capt. Pirn, and until the Governments of Guatemala and Costa Rica shall have given their opinion upon it ; and for that purpose the time for the exequatur is extended sixty days longer." ' [Law of May 10, 1864. See pamphlet " Contrato de ferro-carril cele- brado el 5 de Marzo entre el Honorable Sr. Ministro de Hacienda Lie. D. Antonio Silva, y el Sr. Bedford, C. T. Pirn, capitan de la Marina Real inglesa, y ratificado por el Congreso de Nicaragua el 17 de Marzo de 1864. Managua. Imprenta del Gobierno, a cargo de A. Mejia, 1864. "] 246 No. 34. Validity and force of the treaty of limits. — Costa Rica does not accede to station forces at Sarajpiqui on the ground that it is unnecessary. Department of Foreign Kelations of Costa Kica, San Jose, May 26, 1863. Sir : In taking possession, ad interim, of tliis department, my attention was called to your note enclosing a copy of the project of tlie contract of transit submitted to your Govern- ment by Mr. Felix Belly, and making some suggestions in regard to the advisability that the Government of this Re- public should station some forces at Sarapiqui to meet there certain emergencies. In regard to the Belly contract, you will allow me to call the attention of your Government to the timely remarks made by our common Minister at Washington in regard to the ex- piration of the contract celebrated with the American com- pany in his despatch addressed to your department under date of the 28th of April, a copy of which was sent to this Government. My Government thinks, therefore, that, for the present, and notwithstanding the good antecedents of Mr. Belly, the most prudent thing would be to refrain from making any new contract of transit and wait until the differences between your Government and the North American Company, in re- gard to the validity or invalidity of the contract, are set- tled ; and this is all the more to be done, as it appears, according to the remarks already alluded to, that the proba- bilities of success are on the side of the American Company. I hope that you will not see in these suggestions any thing else than the desire of carrying such an important business to success, as well as the interest that my Government has. 246 in that your Government adopts the best means to terminate a matter which, like this, may have such important results. In view of this it would be useless to enter into the sub- stance of the Belly project, since this Government expects that yours will not take any step in the subject until all questions with the Transit American Company are settled. Therefore, my Gover7iment, reserving for that occasion to give the vote secured to it hy Article VIII of the treaty of April 15, 1858, promises itself that your Government, before con- tracting new engagements, will do all that it can to bridge over the difficulties which it .now encounters. In regard to the suggestions made by you on the advisa- hility to station some forces at Sarapiqui, I am directed tore- ply that as, fortunately, the danger which threatened your Kepublic on that side has already disappeared, the necessity of sending there any forces has also ceased to exist. In transmitting the above to you I have the honor to sub- scribe myself, Your very attentive and obedient servant, JULIAN VOLIO. To His Excellency The Minister of Foreign Kelations of the Republic of Nicaragua. 247 No. 35. Costa Bica protests against the occupation and deterioration of the Colorado river. Depaetment of Foreign Eelations OF THE EePUBLIC OF CoSTA EiCA, San Jose, Jxdy 15, 1863. Sir : Tliis Government having been informed that the Transit Company in Nicaragua attempts to obstruct the Col- orado river which runs within the territory of Costa Hica, the President was pleased to direct the proper investigation to be made ; and, as it appears from the report of the special committee appointed for that purpose, that the engineers of the above-named company sounded and marked the Colorado river, and have already prepared four useless schooners which they intend to load with sand and stones and sink in the said river in order to close it, His Excellency has directed me to address your Government and ask of it to he pleased to pre- vent said purpose from heing accomplished, since it is so ex- tremely injurious to the interests of this country, and to give notice at the same time to the directors of the company afore- said, that he is determined to prevent cdl usurpation of the ter- ritory from heing consum^mated, and that the expenses to he in- curred in the repairing of the damages caused hy them hi the river ivill he charged to those who caused them to he incurred. With distinguished consideration, &c., JULIAN VOLIO. To His Excellency The Minister of Foreign Eelations of the Eepublic of Nicaragua. 248 No. 36. The Govermnent of Nicaragua recognizes that the Colorado river and its mouth are in Costa Rican territory and belong to Costa Rica, and canriot he closed against the vnll of the latter. Government House, Leon, July 21, 1863. Mr. Minister : Under this date I have written to the general agent of the company, and transmitted to the United States Minister residing in Nicaragua the following despatch : " The Department of Foreign Kelations of the Government of the Republic of Costa Bica has addressed to this Depart- ment, under date of July 15th, the following despatch : ' This Government having been informed that the Transit Company in Nicaragua attempts to obstruct the Colorado river, which runs v)ithin the territory of Costa Rica, the President was pleased to direct the proper investigation to be made, and as it appears from the report of the special committee appointed for that purpose that the engineers of the above- named company sounded and marked the Colorado river, and have already prepared four useless schooners which they intend to load with sand and stones, and sink in the said river in order to close it. His Excellency has directed me to address your Government and ask of it to be pleased to prevent said purpose from being accomplished, since it is so extremely injurious to the interests of this country, and to give notice at the same time to the directors of the company aforesaid that he is determined to prevent all usurpat'ion in his territory from being consummated, and that the expenses to be incurred in the repairing of the damages caused by them in the river will be charged to those who caused them to be incurred. " 'With distinguished consideration I subscribe myself, your attentive and obedient servant, " ' J. VOLIO.' 249 " This Government had already received information that some old vessels had been bought by the company for the purpose of closing the mouth of the Colorado river, and noticed that this step would "cause great injury to the town of San Juan del Norte on account of the violent accumula- tion of water at the mouth of the San Juan river which would be produced by it. " On the other hand, the grant of transit made by the Gov- ernment to the companj^ is only temporary, because, in the opinion of the Government, the contract had expired ; and it cannot see without suspicion that the said company seems to be bent upon making permanent works which ought to have been accomplished during the time fixed in the contract, and which now cannot take place under the provisional grant afterwards made. " Under these circumstances I have been directed to tell you that THE CLOSING OF THE MOUTH OF THE COLORADO EIVEE, WHICH BUNS IN THE TERRITORY OF THE EePUBLIC OF CoSTA KiCA, WHICH RESISTS THAT CLOSING, CANNOT BE PERMITTED, and that UO othei permanent work in the territory of Nicaragua not within the permission lately granted of provisional transit, under the trust and confidence of the United States Minister, can either be allowed. " I have the honor to communicate it to you for your in- formation, and subscribe myself your attentive servant, "PEDEO ZELED6N." And I have the honor to transmit to you the foregoing despatch for your information, and in answer to your despatch of the 15th instant above copied, assuring you that my Gov- ernment will, on its part, always prevent any new work which may be attempted to be done upon the territory of your Republic. I subscribe myself, with all consideration, your very atten- tive and obedient servant, PEDRO ZELEDOK To the Hon. Minister of Foreign Relations of the Supreme Government of the Republic of Costa Rica. 250 No. 37. Nicaragua recognizes still more solemnly that the Colorado , river and the right ha7\k of the San Juan river are Costa Rican territory. Government House, Leon, July 28, 1863. Sir : In consequence of your estimable despatch No. 30, of the 15th instant, the proper communication has been ad- dressed to the general agent of the company, stating that the Government of Nicaragua does not permit him to do any work IN Costa Eican territory, as the right bank of the San Juan river at the confluence of the Colorado is, nor to do any other work of permanent character in pursuance of the grant made in favor of the company only temporarily, for no more than three months. The same communication was transcribed to the Minister of the United States, who has under his care and trust the property of the company. The Government of Nicaragua therefore, far from countenancing said work, relies upon Costa Rica to oppose it and prevent it from being consum.mated in its territory. I have the honor to say this to you in answer to your de- spatch above named, and subscribe myself your attentive servant, PEDEO ZELEDON. To The Minister of Foreign Eelations of the Supreme Government of Costa Eica. 251 No. 38. The Minister of Nicaragua in Washingtoji solemnly declares hefore the A merican. Government that the Republic of Casta Rica borders on the interior waters of Nicaragua^ and that its flag is the only one which, in union with the Nicaraguan flag, can float on said waters. Legation of Nicaragua, Washington, Oct. 7, 1863. Most Excellent Sir : ■s- * •»• * * * * On the other hand, I can assure Your Excellency that the present administration of Nicaragua does not feel disposed to consent that any other flag, except her own and that of Costa Kica, as a bordering State, should float in the NAVIGATION OF HER INTERIOR WATERS, a7id that it Considers that the use of the flag of the United States made hy the Central American Transit Com.pany, and even hy the meanest laborers of the same, for the purpose of evading the orders and escajnng the authority of Nicaragua, is an unauthorized abuse, and that, it being persuaded that such an abuse can only produce complications, it will maintain its right, and will demand from the said company, or from any other company owing its existence to it, that it should root itself in the country and become, therefore, national- ized, according to the law of nations, and use pre-eminently the national flag, whenever one should be required within its jurisdiction, no other flag being admitted, except under exceptional circumstances and through courtesy. ***** -x- * LUIS MOLINA. To His Excellency William H. Seward, c&c, (&c., (&c., Washington, D. C. [From "La Gaceta" of Nicaragua, No. 49, January 16, 1864.] 252 No. 39. The Government of Nicaragua approves the declaration of its Minister at Washington, and commends him for his zeal and fidelity. Department of Foeeign Eelations. In consequence of the Executive Decrees of November 29th ultimo and March 2d instant, in which the contract of interoceanic transit was declared to be invalid, because the company had failed to comply with the indispensable condi- tions under which it had been granted, and in which the property of the said transit company, already belonging to Nicaragua by virtue of the stipulations of the same contract, was ordered to be taken possession of, — the company at- tempted to give rise to an international question, and by means of protests and affidavits of interested parties it at- tempted to surprise the Government of the United States, and falsely charged that when the said property was taken pos- session of, at the San Juan del Norte river and port, the flag of the United States hoisted upon each one of the company's establishments had been unworthily insulted. His Excellency the Minister of Nicaragua at Washington, having been informed of those steps, and being zealous of the honor of the Kepublic and of the good understanding between his Government and the Government of the United States, engaged himself at once in causing an investigation of the facts to be made and communicated to that effect with His Excellency the Secretary of State of the North American Republic. The satisfactory result of this action is shown by the following communications, which the Government deems it proper to publish since they do due honor to the good faith and loyalty which govern the relations of the United States with Nicaragua, and reflect no less credit on the zeal and fidelity of our Minister at Washington. 263 No. 40. The action of Don Luis Molitia, Minister of Nicaragua in W(fs/)ingtoji, is approved and commended. — Executive Or- • der rewarding the important services of Don Luis Mo- lina, Minister Plenipotentiary of Nicaragiia in the United States, and Mr. Mandeville Carlisle and Don Fernando Gnzman. The Government, In consideration of the extraordinary and important ser- vices of our Minister Plenipotentiary in Washington, Lie. Don Lnis Molina, rendered in the question lately raised by the Central American Transit Company in the United States ; and of the new contract which has been submitted to the approval and ratification of Congress ; and also of the en- lightened and valuable assistance rendered by Mr. Mande- ville Carlisle, a lawyer, in the framing of the said contract ; and also of the services rendered by Senator Don Fernando Guzman, in his trip to the United States for the same pur- pose, has decided to reward them as follows : 1st. His Excellency Don Luis Molina, Minister Plenipo- tentiary of Nicaragua in the United States, will be paid the sum of $10,000 in American gold. 2d. The lawyer, Mr. Mandeville Carlisle, will be paid $5,000 in the same money. 3d. Senator Don Fernando Guzman will be paid $2,500 in the same money. The above said sums shall be paid by the company, as agreed between it and Senor Molina, as soon as the contract is ratified and the ratification is made known to the company. Given at the National Palace of Managua on the 11th day of January, 1864. MAETINEZ. Countersigned : Zeledon, Secretary of Foreign Relations. [From the " Gaceta de Nicaragua," No. 49, January 16, 1864.] 2S4 No. 41. Validity and sirejigth of the Treaty of April 15, 1858. National Palace, Managua, January 11, 1864. To The Minister of Foreign Relations of the Supreme Gov- ernment of Costa Rica. Sir : In compliance with the provision of the treaty in force hetween this Republic and yours, and notwitlistanding the information which you have already received from our Minister in Washington, Lie. Don Luis Molina, that this step had been foreseen and anticipated, I have the honor to transmit to Your Excellency a copy of the convention lately concluded between the said Minister under the proper in- structions and powers from this Government, and the Presi- dent of the Board of Directors of the Central American Transit Company, by which all questions lately raised by the said company against the decrees of this Government, nulli- fying the old contract and taking possession of the steam- boats and other property which, under the same contract, had become the property of the Republic, have been settled and set at r^st. This contract has been ratified by the Com- pany, and is now subject to the approval of the Government and the ratification of Congress, to which the Government wishes to submit it, together with the vote or opinion of Costa Rica and Guatemala., in compliance with the respective treaties, as soon as it meets either in ordinary or extraordi- nary session. This Government cannot on its own part re- frain from expressing that it has seen with extreme satisfac- tion that by means of this contract it has obtained the most which it desired in its instructions, and that the loyalty, efficiency, and ability of the worthy son of Nicaragua, en- trusted with this negotiation and with the representation in 255 WasliingtoD of this Eepnblic and of the Kepublic of Costa Rica, have been demonstrated. I have the honor on this occasion of repeating to you the sentiments of esteem and consideration with which I sub- scribe myself your obedient servant, PEDRO ZELEDON. 256 No. 42. Yalidity and strength, of the Treaty of Limits. National Palace, Managua, March 19, 1864. To the Minister of Foreign Relations of the Supreme Govern- ment of Costa Rica. Sir : In compliance imth the provisioris of the treaty in force hetween this Republic and yours, I have the honor to transmit for the knowledge of your Supreme Government an authorized copy of the contract lately celebrated between the Secretary of the Treasury, as Commissioner appointed to that effect by this Government, and Mr. Bedford C. F. Pim, and approved by the Executive of Nicaragua, and ratified by the Legislative Power of the same, as shown by its text, which I do in order to obtain the vote or opinion, of your Government required by said treaty. With sentiments of high consideration, I subscribe my- self your attentive servant, E. CORTES. 257 No. 43. The Government of CosUi Rica orders an exploratio7i to be made of its lands horde/ring on the San Juan river. Department of Foreign Eelations op the Republic of Costa Rica, San Josts, May 26, 1864. Sir : About two months ago, a committee consisting of Senores Nieves and Luis Serrano, Juan Florentino and Anastasio Quesada, started from the City of Alajuela,/b;' the purpose of explonng in the neighborhood of the San Juan river the most convenient places to open a road between this Republic and Castillo Viejo. After waiting in vain for the return of that committee, information was received that when the said gentlemen reached Castillo Viejo they were arrested by the authorities of your Republic and taken prisoners to fort San Carlos. My Government hopes, from the high sense of justice of that of your country, that if the said gentlemen did not give any legal reason to be committed to prison the proper orders would be transmitted to the authorities of the fort to restore them to liberty and facilitate their return to their country. I avail myself of this opportunity to subscribe myself your attentive servant, J. VOLIO. To His Excellency The Minister of Foreign Relations of the Republic of Nicaragua. 17 258 No. 44. New expedition to the banks of the San Juan river. Depaetment of Foeeign Eelations OF THE KePUBLIC OF CoSTA EiCA, San Jose, July 31, 1864. SiE : Following the suggestion that you were pleased to make in your estimable despatch of June 9th last, I have the honor to inform you of the approaching departure. of a new exploring expedition to the banks of the San Juan -river for the purpose of locating the shortest road between the interior of the Republic and the waters of that river. The said Com- mission has been provided with the proper passports. According to all information up to this time received, the opening of a road to the above-named point is a very easy matter, and it will considerably facilitate, to the common ben- efit of both Eepublics, their commercial relations. It is, therefore, to be expected that the Supreme Government of your country, if so disposed, will be pleased to direct the au- thorities of Castillo Viejo and Fort San Carlos not to op- pose any obstacle to any one who, for the purposes aforesaid, should approach those fortresses, whenever they exhibit their passports from this Government. Taking advantage of this opportunity, I have the honor to reiterate to you, &c., J. YOLIO. To His Excellency The Ministee op Foeeign Eelations of Nicaragua. 259 No. 45. Nicaragua acknowledges that Costa Rica borders on the San Juan river. National Palace, Managua, August 23, 1864. To the Hon. Minister of Foreign Relations of Costa Rica. Sir : I have had the honor to receive your estimable de- spatch of the 31st of July ultimo, in reference to mine of June last, and to a new exploring expedition sent hy your Rej^uhlic to the hanks of the San Juan river for the purpose of locating a convenient road. This road may be opened up to the San Juan river without going out of the territory of your republic, according to the treaty of limits between it and nic- ARAGUA ; but it may be also constructed, if shortness is principally consulted, in such a way that it touches the ter- ritory which this Republic reserved for itself for the proper defence of Castillo Yiejo and its free communication with San Carlos. In the latter case a previous arrangement would be necessary between the two Governments. It is for this reason that the arrival of the explorers to Castillo Viejo, or to any place whatever between it and San Carlos, cannot be but accidental ; and in order that it may not cause alarm in those garrisons I have sent a copy of this note to the respective commanding oflScers thereof, and I hope that you will be pleased to communicate the same to the contractor to avoid all mistakes. I am, with high consideration, your attentive servant, P. ZELEDON. 260 No. 46. Nicaragv a ■promises that the interests of Costa Rica will he respected^ and that its rights will suffer no detri'inent. National Palace, Managua, June 13, 1866. Mr. Minister : I informed His Excellency tlie President of this Republic of your despatch of May 25 ultimo, reiterating the statements of the communication addressed by your De- partment, under date of July 15, 1863, in relation to the work of the transit company, and for the purpose of pre- venting the latter from doing anything which might obstruct the Colorado river, or any of its branches, this reiteration being made because your Government has been informed that some work of this kind is now intended to be done by the above said company. This Department has no knowledge that any work is being done in the sense above indicated, and therefore, under this very date, it has asked the authorities at both the port and river of San Juan del Norte for the proper report. With the result thereof the proper answer will be given to your despatch of May 25 ultimo, above named ; but in the mean- time tKe Supreme Government of Costa Rica may rest as- sured that the Government of Nicaragua will respect the interests of Costa Rica, and will see that its rights are in no loay injured. This is the answer which I have been directed to give you, and I have the honor to reiterate to you the protests of my great esteem. R08ALI0 CORTES. To the Hon. Minister of Foreign Relations of the Supreme Government of the Republic of Costa Rica. 261 No. 47. Costa Rica protests against the deviation, of the waters of the Colorado river helonging to that liejjublic. Department of Foreign Eelations OF the Republic of Costa Rica, San Jose, June 26, 1866. Sir : The President of the Repubhc having been informed that the Central American Transit Company attempts to obstruct the Colorado river or some of its branches, all of which run in the territory of this Republic, in order to in- crease the vokime of waters of the San Juan river, and trusting in the promise that your Govern'ment m,ade to the Government of Costa Rica on July 21, 1863, in answer to the communication of the 15th of the same vnonih., protesting against that attempt, has been pleased to direct me to ad- dress your Government, as I have the honor to do, reiterating the statements of the said coinmunication of July 15, 1863, in order that, in due regard to the interests of both Repub- lics, your Government muy be pleased to interpose its authority to prevent the said company from carrying out its purpose of injuring the right bank of the San Juan river, belonging to Costa Rica, or the Colorado river, or any one its branches. Taking advantage of this opportunity, it is pleasing to me to offer you the assurances of my esteem, &c. J. YOLIO. To His Excellency The Minister of Foreign Relations of the Republic of Nicaragua. 262 No. 48. Despatch stating that a sanitary cordon of Costa. Rica has trespassed on the Nicaragxian frontier as established hy the treaty of 1858. Office of the Prefect of the southeen department, RiVAS, January 8, 1867. lo the Hon. Secretary of State of the Government of Nicaragua. Sir : I have the honor to report that the Government of Costa Eica moved, no doubt, by the information that cholera had broken out in this Republic, has ordered a sanitary cor- don to be stationed on the frontier. But in doing so the Costa Rican Government has invaded the territory of this Republic by establishing a garrison at the place named El Naranjito, which is two leagues, or perhaps more, distant on this side from the dividing line lately* agreed upon by the two Republics. This, in my judgment, is an attack upon our property which may create great difficulties, and for this reason I report it to Your Excellency, in order that Your Excellency may take such action as proper. MAXIMO ESPINOSA. 263 No. 49. Nicaragua asks that a sanitary cordon he moved back to the frontier established by the Treaty of 1858. [seal]. National Palace, Managua, January 12, 1867. Mr. Minister : I have the honor to enclose an authorized copy of a communication sent to this Department by the Pre- fect of the Southern Department. You will see by it that the officers commanding a picket belonging to the sanitary cordon established by your Government have trespassed upon the di- viding line by situating their forces in Nicaraguan territory. My Government hopes that yours will be pleased to issue the proper orders for the purpose that the above-named forces vacate the points which at present they occupy in this country and station themselves on Costa Rican soil. No doubt is entertained that such orders will be issued with the promptness required by the case, because it is not to be presumed, in view of the sense of justice of your Government and of the good relations which exist between the two coun- tries, that there is any desire to do any hostile act against Nicaragua. With the assurances of my greatest esteem and considera- tion, I subscribe myself your attentive servant, ROSALIO CORTES. To the Hon. Minister of Foreign Relations of the Supreme Government of Costa Rica. 264 No. 50. The Government of Costa Rica consents to move hack its sani- tary cordon to a point indisputably located within the limits estahlished hy the treaty of April 15, 1858. Department of Foreign Relations of Costa Rica, San Jose, January 25, 1867. Sir : I submitted to the President of the Republic your attentive official communication of the 12th instant, enclos- ing an authorized copy of the letter addressed to you on the 8th instant by the Prefect of the Southern Department, and stating that the officer in command of the sanitary cordon of this Republic trespassed upon the dividing line in sta- tioning forces on Nicaraguan territory, and that your Govern- ment expects from the sense of justice of my Government and the good relations existing between both countries that the proper orders should be given to the above-named forces to vacate the aforesaid territory. In consequence thereof I have been directed to give you the following answer : Although the place where the Governor of Liberia sta- tioned the first sanitary cordon is not shown to belong to the terri- tory of Nicaragna^ because the dividing line betxceen the two Republics is not yet actually drawn there, still it was sufficient that your Government should deem that point to be included within the limits of your Republic, to make my own Govern- ment, without entering into the merits of the question and for the sake of harmony between one and another people and of the sincere friendship of both Governments, to cause the sanitary cordon to be, as it has been, immediately with- drawn and established only on such places as indisputably belong to the territory of Costa Rica. The wishes of your Supreme Government are thus complied with ; and, in transmitting to you this fact, I reiterate, &c., J. YOLIO. To His Excellency The Minister of Foreign Relations of Nicaragua. 265 No. 51. Costd Rica shows her dispositio)) to enter into nrrdngewents with Nicaragua to determine hy m.utaal agreement what should be done in regard to comviunications on the Atlantic side. Depaetment of Foreign Kelations of Costa Rica, San Jose, November 25, 1868. Sir : This Department has received, toget]ier with your important despatch of the 7th instant, an authenticated copy of the report of the civil engineer of your Republic v)ho made the survey of the San Jaan and the Colorado rivers, and in due conformit}^ with the wishes of your Government, I now transmit to you a true copy of the report upon the same subject which has been made by the engineers of this Re- public. You will see that both reports entirely agree upon the principal fact, and consider that San Juan is the place where a good port can be made with less cost and more advantages. My Government will pay the greatest attention to such an important matter, and will readily enter into any arrange- ment which may be proposed to it beneficial to both Re- publics. I reiterate to you the assurances of true esteem with which I am, &c., A. ESQUIVEL. To His Excellency The Minister of Foreign Relations of Nicaragua. 266 No. 52. Contract Ay on- Chevalier. — Costa Rica is an essential, party to the interoceanic canal. — The contract will he void if Costa Mica does not accept it. — Costa Rica will l)e invited to make in favor of the grantee such concessions in the Costa Rican territory as Nicaragua makes in her own. The President of the Republic to its inhabitants., greeting : Know ye, that Congress has decreed as follows : The Senate and Chamber of Deputies of the Republic of Nicaragua Decree. Article only. The contract of the Maritime Interoceanic Canal, celebrated in Paris on the 6th of October, 1868, by the Minister of Foreign Relations, Lie. Don Tomas Ayon, and Monsieur Michel Chevalier, a French subject, consisting of 59 articles, and an additional one, whose tenor is as follows, is hereby ratified in all its parts. LIII. The Republic of Nicaragua 6mrt?s herself to nnnke every pos- sible effort to obtain as early as practicable the adherence of the Republic of Costa Rica to the present convention, in such a way that Costa Rica guarantees in favor of the grantee and in her own territory, and in all that belongs to her, the ad- vantages stipulated by Articles YI, XIY, XV, XVI, XVII, XIX, and XX ; the latter in combination with the XXI, XXIV, and XXV ; the latter in combination with the XXVI, XXVII, XXVIII, and XXIX; the latter in combination with the XXX, XXXI, XXXIII, XXXIV, XXXV, XXXVI, XXXVII, XXXVIII, and XXXIX ; the latter in combination with the XL, XLI, XLII, XLIII, XLIV, XLV, XLVI, XLIX, L, and LII, and also LVII, LVIII, and LIX foUowing. 267 LIV. The Republic of Costa Rica will be invited to treat the company in the same way as the Republic of Nicaragua does by the present Convention. LV. The Republic of Nicaragua reserves for herself to enter into arrangements with Costa Rica for the purpose of stipulating the advantages which Costa Rica will derive from adhering to the present Convention. LVI. If the lie^niblic of Costa Rica should refuse her adherence^ the present Convention shall he ipso facto annulled. ****** -x- MICHEL CHEVALIER, TOMAS AY6N. Given at the Hall of Sessions of the Senate, Managua, March 2, 1869. — P. Joaquin Chamorro, President; Vicente Guzman, Secretary ; Pio Castellon, Secretary. To the Executive Power. Hall of Sessions of the Chamber of Deputies, Managua, March 15, 1869. — S. Morales, Presi- dent ; P. Chamorro, Secretary ; Miguel Robledo, Secretary. Therefore, let it be executed. Government House, Managua, March 15, 1869. FERNANDO GUZMAN. A. H. RivAS, Secretary of the Interior. 268 No. 53. Editorial of the Nlcaraguan " Gaceta'''' on the Ay on- Cheva- lier canal contract. — The San Juan river explicitly de- clared to he (1869) in great part the frontier of Costa Rica. — The adherence of Costa Rica to the contract recognized to he indispensable. — Costa Rica is asked to grant in her territory what Nicaragua has granted i7i hers. — All of this presupposes the acknowledged validity of the treaty of limits. " Gaceta."" The Ganal Conteact and the Eepublic of Cost Eica. The contract for the canalization of the Nicaraguan isthmus is already an accomplished fact. * * * It is indubitable, therefore, that our canal contract has been made under the most favorable auspices. The only thing that now remains to he done is that the Re- public of Costa Rica co-operates in its accomplishment. By Article XLIII of the canal contract the Republic of Nicaragua binds herself to make every ■p)ossihle effort to obtain as early as p>racticahle the adherence of the Republic of Costa Rica to the Convention., in order that it may guarantee in favor of the grantee, within its own territory and in all that cor- responds to it, the advantages that Nicaragua has granted. And, in truth, it is so demanded by the topographic situa- tion of the San Juan river and of the Lake of Nicaragua, which IN A GEEAT PAET SEEVE AS A DIVIDING LINE BETWEEN THE TEEEI- TOEY OF THE TWO EePUBLICS. Would our neighbor be willing not to oppose any difficul- ties to the realization of a project which has occupied us for so many years ? Would it be willing to concur in this colossal work, which is of paramount necessity, and share be- sides the advantages which the same offers to it ? 269 We do not doubt that tlie two Republics, whose citizens have often shed their blood in defence of the Central Ameri- can independence on the fields of Eivas in 1856, will unite themselves to-day and co-operate in the opening of the canal, which offers such a vast horizon of prosperity for the two people whose interests are completely identical in this case. If Costa Eica has to make concessions it has also to en- joy IN ITS OWN TEKRITORY the same advantages as the vessels and commerce of Nicaragua, as is provided by the additional article of the Convention. We trust that the sympathy and good sense of our neigh- bor, looking at things from the true stand-point, will adhere to the above said Convention, and we trust besides that the ability and wisdom of Don Mariano Montealegre, Envoy Ex- traordinary and Minister Plenipotentiary of Nicaragua, will secure the success of the mission entrusted to him by obtaining the adherence of the Costa Eican Government to the Articles of the Canal Convention which concern it. Otherwise Article XL VI of the Convention reads clearly and inexorably : "If the Eepublic of Costa Eica should REFUSE HER ADHERENCE THE PRESENT CONVENTION SHALL BE, IPSO FACTO, ANNULLED." Would this be the end of so many discussions, so much labor, so many expectations and hopes ? That is not possi- ble. [From "La Gaceta de Nicaragua," No. 17, April 24, 1869.] 270 No. 54. The Government of Nicaragua asks the Government of Costa Rica to request the National Constituent Convention to modify certain articles of a treaty hetween the two Repub- lics for the digging of an interoceanic canal. San Jose, September 2, 1870. Sir : Senor Don Alejandro Cousin delivered to me your despatch of the 20th of August, asking this Government to request the National Constituent Convention to modify Arti- cle XXXYI of the Convention between Costa Eica and Nic- aragua for the opening of an interoceanic canal, so as not to deprive the company of the right of appointing arbitrators for the settlement of the differences which may arise on this subject. The National Convention organized itself on the 8th of August, and adjourned on the 25th of the same month. It will reconvene as soon as the committee in charge of framing a project of constitution terminates its labors. I can assure you that as soon as the Legislative Power re- convenes this Government will immediately make the request referred to by you. I am, your very attentive servant, MONTUFAR. To His Excellency The Minister op Foreign Relations of the Republic of IsTicaragua. 271 No. 55. Project of a road from San Josede Costa Rica to San Carlos for the. export of coffee through San Juan del Norte. — Costa liiea earnestly invited to co-operate iii the restoration of the port of San Juan by uniting the waters of the Col- orado river with those of the San Juan river. The " Gaceta." In number 41 of the " Debate," issued on the 28th of last month, an article full of important statements began to be pubhshed, showing the advisability that some means of com- munication towards the Atlantic should be opened through the route northwest of San Carlos. The writer, resting on good calculations and on conclusive proofs, demonstrates that a road in that direction would offer Costa Rica considerable advantages, and facilitate the trans- portation of coffee from the places where it is raised to the port of embarkation. We have noticed before this time the efforts made by the Government of that Eepublic to open a road to the northeast through the difficult and costly route of Limon. The esti- mates made for that enterprise contain, as was natural, heavy items, capable to be increased indefinitely, for the frequent and perhaps unceasing repairs which the road required, be- cause it was to be built upon muddy ground, exceedingly hilly, and totally unprovided with the material necessary to do substantial work. The Government of Costa Eica, having fixed the whole of its attention to finding the way of conquering the difficulties encountered by that enterprise, had not been able to notice that the San Carlos route was more accessible, more conve- nient to the commerce and agriculture of the country, more promising of good results for the section crossed by it, and 272 more profitable to all tlie localities where coffee is cultivated. * * * Coming back from our digression to tlie project of a northern road initiated by " El Debate," we can assure, upon inspection of the facts furnished by different surveys made at different times, both on the land as well as on the water-side, that the San Carlos route will be the easiest, the less costly, and the nearest to the principal points of the Re- public . From San Jos6, which we consider as the central point, to Penablanca, where the San Carlos river is reached and where a port can be established under favorable conditions of salubrity and sufficient area for a town, there are only eighteen leagues ; from there to the confluence of the San Juan river there are no more than twenty leagues, counting in this measure the windings of the stream ; and from there to the port of San Juan del Norte there are eighteen more leagues ; so that between this port and San Jos^ there is a total distance of fifty-eight leagues. This is much less than the distance between the same port and the Nicaraguan towns on the lake shore ; since from San Juan del Norte to Rivas there are sixty-three, and to Granada sixty-seven, leagues. To the capital there are seventy-eight ; that is to say, twenty leagues more than the distance to the capital of Costa Rica. It is, therefore^plam that Costa Rica Has more interest than Nicaragua and is more henefited than she hy the improve7nents of the San Jua7i 'river and of the port of the same name. The San Carlos river does not offer any obstacle of any kind, but, on the contrary, presents great facilities to navi- gation after Penablanca is reached ; because, as it has no other tributaries than the Arsenal river, the Rio Blanco river, and a few streams of small importance, carries sufii- cient water of its own to render the danger of scarcity or dryness in summer rather remote. The bottom of the river is generally sandy, at least in the navigable part, and it has 273 no rapids nor rocks obstructing the way ; and, if it is true that there are in it some irregular currents, still this does not constitute any danger nor difficulty for steamboats properly built for that purpose. The banks on both sides are high, showing an average altitude of from ten to twenty feet — suf- ficient to prevent overflows. The adjoining lands are en- dowed with a wonderful fertility for the cultivation of sugar- cane, indigo, cocoa, and all the fruits of our climate. The vmjyroveinents in the port of San Juan del Norte and, in the lower part of the river, sufficient to overcome all ob- stacles, absolutely depend upon the restoration of the branch named Colorado river. The incorporation of one with the other, wholly or in part, will not cost much. Some esti- mates have been made of the cost which such a work would require, and the amount reached scarcely exceeds $60,000 or $80,000. The conveniences of the port are proverbial, even now% and certainly will increase with the increase of the water and the restoration of the port to the condition in which it was a few years ago. * * * It would, therefore, be desirable that the two Governments, listening to the voice of coinmon interest, shotdd enter into the proper arranger)ients to improve, at the cost of both Republics, the port of San Juan del Norte and the lower ptart of the river. A great writer of the last century said that the utility of one nation depended precisely upon the ruin or retrograde con- dition of its neighbor ; but he was execrated by his contem- poraries for being the propagator of pernicious maxims. Will it be possible for any one in this century to think that it is right to lessen the advantages of a neighbor, even to the det- riment of his own interest ? Let us hope that there is no such person, and that the Governments, laying aside all narrow- minded sentiments, will combine to promote the prosperity of both nations. [From the " Gaceta de Nicaragua," No. 38, September 17, 1870.] 18 274 No. 56. Remarks made hy the Oovernment of Costa Mica to the Government of Nicaragua when the latter submitted to the Nicaraguan Congress its so-called doubts in regard to the validity of the treaty of limits of 1858. [seal]. San Jose, February l^i, 1870. SiE : I have read with deep sorrow that part of the mes- sage addressed by Your Excellency to the Nicaraguan Con- gress, wherein the treaty of limits between Costa Kica and Nicaragua of April 15, 1858, is discussed. That passage of Your Excellency's message reads literally as follows : " Article II of the Constitution of November 12, 1838, which was the one in force at the time in which the treaty of limits was adjusted, declared that the territory of the State of Nicaragua was exactly the same as the territory which the Province of Nicaragua had been. This Province, before the independence, embraced the whole territory of Guanacaste. "Article 194 provided that, for the amendment of or addi- tion to any article of the Constitution, it should be required among other formalities that the said amendment or addition should be approved by the two-third vote of the Senators and Members present, and that, after securing this vote, neither the amendment nor the addition should be considered as forming a part of the Constitution, as all laws on limits are, until sanctioned by the next Legislature." " The same formalities are established for similar cases by Article 103 of the present Constitution," "The treaty of limits, in which Nicaragua, abrogating Article II of her Constitution, generously ceded to Costa Eica a large portion of territory, which she has possessed quietly, both before and after the independence, required for 275 its validity to have been sanctioned by the next Legislature. It was approved by the Assembly of 1858 ; but that was not enough. It ought to have been approved, also, by the Con- gress of 1859, because the two Legislatures were considered hj the Constitution as if they were two co-ordinate legislative bodies, the approval by the first being only of initiative character and lacking legal force without the approval of the second, exactly in the same way as the action of one Chamber in the enactment of a law means nothing if the other Chamber does not act accordingly.'' " The said formality having been omitted, the treaty of limits lacks legal force, and therefore Costa Kica has no right to demand its execution, because, according to the principles of the law of nations, treaties are void and inoperative through the omission of au}'^ requisite which, according to the Con- stitution of the State, was necessary for its consummation." " The Government of Costa Rica has acknowledged that this is the condition in which the above said treaty finds it- self, because in Article VI of a convention made on the 12th of July, 1869, between the Plenipotentiaries Don Mariano Montealegre and Don A. Jimenez, about the cession of the waters of the Colorado river for the purpose that they should be thrown into the San Juan, a convention of which, in due time, I gave you the proper information, it asked Nicaragua to ratify the treaty of limits with Costa Rica, and to agree to submit to the arbitration of the Government of the United States of North America all questions arising out, either of the said treaty, or of the execution of the convention just spoken of." " Costa Rica, in asking Nicaragua to ratify the treaty of limits in which the latter State ceded to the former a large extent of its territory as preliminary for allowing the waters of the Colorado river to be thrown into the San Juan, looked as if pretending that Nicaragua first should give it the whole thing, and subsequently take back a portion of it. It is useless to repeat here the obvious reasons which you had in view for rejecting the convention." 2T6 " In order to avoid perplexities in tlie course of this busi- ness, the Executive requests your Honorable Body to define well the rights of the Eepublic in the matter of limits with Costa Rica before undertaking works or devising plans for the improvement of its ways of communication on the north- ern side." This grave subject being now under discussion in the Chambers of your Eepublic, I think it my duty to present to Your Excellency some remarks, and request that, if deemed proper, they be transmitted to the Congress of Nicaragua for their consideration. The Constitution of your Republic, promulgated on the 12th of November, 1838, as Your Excellency yourself recog- nizes, did not say anywhere that the territory of Guanacaste was part of Nicaragua. It confined itself to indicate that the territory of the State was the same as belonged to it when a Province. In reference to this I must state that Guanacaste, in the time of the Spanish Government, always was under the im- mediate jurisdiction and control of Cartago ; and that the Spanish Cortes, when they promulgated the Constitution of 1812, decided that Guanacaste should be incorporated in Costa Rica for the purposes of electing deputies both for the Cortes and for the provincial deputation or assembly. , I must say further, that according to the charter of the Colony of Costa Rica, the King of Spain appointed Don Diego Artieda y Chirinos to be the first Governor and Cap- tain-General of this Province, marking as limit for the same the San Juan river on the Atlantic. But there are other conclusive reasons founded upon doc- uments of subsequent date in support of the treaty of limits. It was approved by the Government of Costa Rica and Nicaragua. It was ratified by the Congresses of Costa Rica and Nic- aragua. The ratifications of the treaty were duly exchanged, and 277 the treaty was promulgated in both Republics as the law of the laud iu regard to limits. Thirteen rears have elapsed since that publication, and all the Legislatures which have met during that period have looked at that treaty as the basis of the relations between both countries. The Legislature of Nicaragua approved the treaty of peace and amity concluded on the 30th of July, 1868, taking for granted that the limits between both Republics were settled. The present Constitution of Nicaragua, subsequent in date to the treaty, says, in its Article I, that the laws on limits make a part of the Constitution. The treaty herein referred to is aNicaraguan law on limits, and a law of the highest importance. Therefore it is an in- tegral part of the Constitution of Nicaragua, according to its own literal language. Under these circumstances, the august Chambers of your Repubhc would need, before declaring the treaty of limits to be invalid, to be invested with all the power which Your Excellency says to be indispensable to amend the Constitution of your country, in addition to all other circumstances pre- scribed by international law to invalidate a treaty signed, ap- proved, ratified, exchanged, promulgated, and executed during 13 years. Your Excellency refers to a project of Convention cele- brated on the 21st of Jtily, 1869, between the Plenipoten- tiaries Don Agapito Jimenez and Don Mariano Montealegre. Article VI of the said project alluded to by Your Excel- lency says : " The Government of Nicaragua ratifies by this convention the treaties which it has celebrated in regard to limits with the Government of Costa Rica." I do not understand what was the reason why the Costa Rican Plenipotentiary acceded to subscribe to such an arti- cle, included in a project, which was relative to a matter en- tirely independent of all question of limits ; but I under- 2T8 stand very well that the said article does not prove at all that the treaty of limits is not valid. Senor Montealegre, Plenipotentiary of Nicaragua, came to suggest that Costa Rica should allow the waters of the Colo- rado river to be carried into the San Juan. He recognized the validity of the treaty of limits, and requested that the waters of the Colorado river be granted to his country, and the request was granted by the Costa Bican Plenipotentiary, who assented, furthermore, to the enactment of Article VI above copied. But the said project of convention, including its Article VI, was not ratified by the Congress of this Republic ; and, there- fore, it has no more force and strength than if it were simply blank paper. To have some right to argue against Costa Rica on the ground of the said convention, it would be necessary for the convention to have become a law, which never happened. Now, by virtue of the discretionary faculties vested in the President, His Excellency has the power to ratify public treaties ; but His Excellency has not only refused to ratify the convention referred to, but has been pleased besides to decree that it is invalid and void. Be pleased to accept the consideration with which I have the honor to assure Your Excellency that I am your most attentive servant, MONTUEAR. To His Excellency The Minister of Foreign Relations of Nicaragua. 279 No. 57. ReriiarJes of the Government of Casta Rica in refu.tation of the (louhts entertained hy the Govermnent of Nicaragua on the validity of the treaty of limits. [seal]. San Jose, July 22, 1872. Sir : The estimable despatch of Your Excellency, addressed to me on June 30, is now in my possession. Your Excellency is pleased to set forth in it that it is not the intention of your Government to move for an immediate decision in the matter of limits, but to explain what the Gov- ernment of Nicaragua has considered to be an undue and wrongful act of an officer of this Republic. * * * Your Excellency goes on repeating what has been said in support of the opinion that the treaty of limits is illegal ; in- sists upon declaring that what is called " Desaguadero " in the Royal Cedula of Aranjuez is not the San Juan river ; affirms that several Cedulas and geographers, and tradition, show that they are two different things ; says that the grant made by the King of Spain was on condition of conquering the territory spoken of in the Royal Cedula, and that no one will dare to maintain that the conquest was ever made, and ends by asking a frank explanation in regard to the action of the chief of the customs service. Your Excellency will allow me to say that in your despatch of May 22 you did not confine the discussion to the matter of customs service alone, but extended your remarks to some- thing else. Your Excellency said that the statu quo ought to be preserved until the treaty of April 15, 1858, is declared to be vahd or invalid ; and further said that this statu quo must be understood as follows : Nicaragua exercising the free navigation of the Colorado river and using all the places yielded to Nicaragua by the treaty of limits, so that the statu quo, according to Your Excellency, is and must be that 280 Nicaragua possesses the whole thing as absolute lord and master. Your Excellency expressed in the same despatch that, after the validity of the treaty is admitted, it will be neces- sary to proceed to make the survey, and added that Nicara- gua had granted Costa Rica a vast territory adjoining the right bank of the San Juan river. In the presence of these statements it was necessary for my Government to say all that is contained in the note of June 10th. Even in this despatch I cannot refer exclusively to the customs service question, because Your Excellency does not do so, but insists on discussing the question of limits and the validity of the treaty of April 15, 1858. In this respect Your Excellency will allow me to say that historian Juarroz describes the limits of the Nicoya district as follows : " It is bounded on the west by the ' corregimiento,' or 'Alcaldia Mayor ' (territory under the jurisdiction of a mayor or local governor) of Sutiava ; on the south by the Pacific Ocean ; on the northeast by the Lake of Nicaragua ; and on the east the boundary runs along the limits of Costa Rica." The same thing says Alcedo in his Dictionary published in 1788. The Most Illustrious Senor Don Francisco de Paula Garcia Pelez states in his " Memoirs " that the kingdom contained five Governments, namely, Guatemala, Nicaragua, Costa Rica, Honduras, and Soconuzco ; and nine "Alcaldias Mayores," namely, San Salvador, Chiapas, Tegucigalpa, Sonsonate, Ve- rapaz, Suchitepiquez, Nicoya, Amatique, and the mines of Zaragoza. In the well-known " Report " on the Kingdom of Guate- mala, made by Engineer Don Luis Diez de Navarro, in 1754, the following words are found : " On the 19th of January, 1744, I reached the mountain of Nicaragua, which is a very rugged one, where the province of that name ends, as 281 I have explained in ray first trip, and I entered the jurisdic- tion of Nicoja, which, althoiigh an 'Alcaldia Mayor,' separate from the Government of Costa Rica, is reputed to belong to the latter province. The same author further says as follows : " The capital of said province (Costa Rica) is the city of Cartago, and its boundaries and jurisdiction are as follows : On the Northern Sea from the mouth of the San Juan river to the ' Escudo ' of Veragua in the Kingdom of TierraFirma." The La Flor river was the dividing line between Sutiava and Mcoya, as shown by the land titles and by the practice observed from time immemorial in the administration of the local government of both districts. Three years after the independence Nicaragua had to suf- fer the scourge of civil war, because of the disagreement which has afflicted her so much between Leon and Granada, Managua and Masaya. Costa Rica, on the contrary, constituted itself peacefully and with the greatest tranquility. The Nicoya district did not want to follow the fate of Nic- aragua, and be agitated by discord, but decided to belong to Costa Rica ; and Costa Rica accepted this decision in 1825, with the consent and approval of the Federal Congress. When the Central American Union was dissolved each state retained the limits which it had at that moment, and this is the iiti possidetis on which their rights rest at present. In consequence of this, Nicoya formed an integral part of Costa Rica until the year 1858, in which the treaty of limits was signed. By this treaty Costa Rica receded from the La Flor river and withdrew as far as the Salinas Bay. The line which the treaty guarantees for Costa Rica is one which rests upon the firm ground of possession for many years. Furthermore, in the apportionment of the foreign debt, the share of Costa Rica included the portion which corresponded to the territory now spoken of. 282 Costa Rica also recognized such a portion of the colonial domestic debt as corresponded to the same territory. The Aranjuez Cedula describes the limits of Costa E-icaby saying, from the mouth of El Desaguadero to Veraguas. Your Excellency says that the San Juan river is not the same stream called Desaguadero in the Cedula referred to. But in the despatch of the 10th of June I had the honor to tell Your Excellency what follows : " It is very important for all nations to fix their limits with foreign countries, and the dividing lines between their prov- inces. For this purpose, whenever practicable, ranges of mountains, rivers, lakes, or seas are always looked for. In the councils of the King of Spain this well-known truth was taken into consideration, and in marking the limit between Costa Rica and Nicaragua the most striking and natural pos- sible line, that is, the San Juan river, was chosen." To this remark Your Excellency has not been pleased to give any answer. According to historian Juarroz, the southern bank of the San Juan river was reputed to belong to Costa Rica, and this proves that the San Juan river is the same which was for- merly called Desaguadero. The ancient names of the rivers which empty into the San Juan on the Costa Rican side prove the same assertion. The river which runs near Castillo Viejo is called on the old maps " Rio de Costa Rica." To maintain that the " Desaguadero " is not the same San Juan river, Your Excellency has referred to " Cedulas," geographers, and tradition ; and Your Excellency will allow me to say that neither those Cedulas have yet been produced, nor the names of those geographers have been given. In regard to tradition. Your Excellency knows very well that it is founded on a chain of competent writers, who, for an uninterrupted series of years or centuries, record as certain some facts witnessing an uniform belief in their existence. I do not know of any such series of writers serving as ' 283 foundation to the tradition which Your Excellency speaks of ; and on the contrary the writers from whom I have alloAved myself to quote demonstrate not only that there is not the absolute agreement of belief in favor of the opin- ion which Your Excellency maintains, but that on the con- trary there is a current of belief in a sense entirely opposite. Your Excellency says that the grant made by the King of Spain, in favor of Artieda Ghirinos, was on condition that he should conquer all the territory spoken of by the Aranjuez Cedula. But, Mr. Minister, Pedrarias had began the conquest of that territory before Artieda Chirinos. The latter continued it, and his successors consummated it. So one of the above- named writers sets forth, quoting from the Decades of Herrera and from other authors. So that even if the rights of Artieda would have been conditional, the condition was complied with. Furthermore, Costa Rica promulgated its fundamental law in the year 1825. By it (Article XV) the mouth of the San Juan river was designated as the limit with Nicaragua, and the neighboring Republic did not make any claim against this designation. The Congress of Central America accepted the Costa Rican Constitution, and the federal authorities respected it until the compact of the union was dissolved in 1839. The treaty of limits is objected to on the ground that con- stituent Congresses do not ratify treaties ; that the Constitu- ent Assembly of Nicaragua which ratified our treaty acted as if it were an ordinary Congress ; and that this being so it had no power to change the fundamental laws of Nicaragua in regard to limits. This argument, Mr. Minister, only deserves examination because the person who makes it has just been the Secretary of Foreign Relations of Nicaragua, and is Lie. Don Tomas Ayon. The Congresses or Assemblies are the powers in which the 284 faculty of enacting laws is vested. There are two classes of laws : one tlie fundamental or organic, and the other the secondary or municipal. The series of fundamental or organic laws constitutes what is called the Constitution. And the collection of secondary or municipal laws, which receive different names according to the category to which they belong, form what is called the municipal law of each country. The Constitution is the foundation and basis of all munici- pal laws, and to enact or frame it more power and more authority is needed than for framing or enacting municipal laws. Constituent Assemblies are the supreme legislative power, and they can enact and frame not only organic laws but also statutes of other kinds for which less power is required. The different Constituent Cortes which have been held in Spain are good proof of this well-known truth. The Constituent Assemblj^ of France did not only proclaim the principles of 1789 and the basis of the Constitution, but also abolished the tithes, took measures against nobility, and promulgated decrees of other kinds. The other Assemblies which have met on the French soil have likewise enacted both fundamental and municipal laws. The English Parliament, which is an ordinary legislative power, has also the faculty to amend laws of organic charac- ter, which is tantamount to exercising both legislative and constituent authority. No objection can be founded, as far as treaties are con- cerned, on the fact that in England the ratification thereof belongs to the Crown, because this ratification by the Crown is not sufficient when the laws of England are modified by the treaty. The Treaty of Utrecht between England and France was not carried into effect, because the English Parliament re- fused to pass the bill introduced on it giving sanction to the modification made by said treaty to the English laws on navi- gation and commerce. 285 111 England Parliament has to take cognizance of all treaties by wliicli Great Britain is bound to pay any snms of money. Without going outside of the Central American limits, we find Constituent Powers to have enacted municipal laws or statutes and approved of treaties. The treaty between Costa Rica and Guatemala of March 10, 1848, was ratified in the latter Republic b}' a Constituent Assembly, and, nevertheless, no one of our public writers has ever said that that treaty was null because Constituent Bodies cannot ratify public treaties. Senor Ayon, in his capacity of Secretary of Foreign Rela- tions of Nicaragua, sent a despatch to this Department, un- der date of August 20, 1870, asking that the Constituent Con- gress of this Republic should approve of certain modifications made to a treaty. And from this it is to be concluded that, while Senor Ayon, as Secretary of State, believed that Con- stituent Congresses have the power to ratify treaties, as a writer of pamphlets aifirms, however, that they have no such power. Constituent Congresses which have authority to enact or- ganic laws, which is the greatest power, certainly have au- thority to enact municipal laws or statutes, which is the least. Constituent Congresses lack only the power to enact those municipal laws or statutes when their convocation clearly and explicitly stated that their only power was to frame the Constitution. In that case the people elected their representatives for that purpose, and for nothing else. But the Constituent Assembly of Nicaragua, which ratified the treaty of limits, was not convoked exclusively to frame the organic law, and this ex-Secretary Ayon himself takes pains to explain in his pamphlet of the 10th of July instant. But even if the said Assembly would have had only the power to enact organic laws, it would also have had the power to ratify the treaty of limits under the doctrines 286 which the Department of Foreign Eelations of Nicaragua holds to be correct. Your Excellency says that all provisions about limits be- long to the category of organic laws ; and, therefore, under this doctrine, a constituent assembly is precisely the one which ought to have approved the treaty, because constitu- ent powers are those which can enact organic laws. The subtle distinction made by Ex-Secretary Ayon that the Constituent Assembly of Nicaragua which ratified the treaty did so as an ordinary assembly and not as a constituent power cannot satisfy any one. That Assembly was vested with the august constituent power, the first and the highest of all, a power which is never delegated, nor could it delegate ; and all its acts ought to be considered as performed in such a high capacity. I believe, Mr. Minister, that it is entirely useless to officially continue this discussion because there is no authority which can settle the controversy. If there were a tribunal of arbitra- tion to which the matter could be referred, then it would be proper to submit to it exhaustive arguments on the subject ; but there is no such a tribunal in existence, nor has the Republic of Nicaragua been, pleased to suggest its estab- lishment. It is of no use to state and prove that the treaty of limits was made by Plenipotentiaries fully authorized and compe- tent to do so ; that it was approved by the Governments of Costa Rica and Nicaragua ; that it was ratified by the Con- gress of Costa Rica and by the Constituent Assembly of Nicaragua ; that the exchange of ratifications took place ; that the treaty was solemnly published as the law of the land con- cerning limits ; that it has been carried into effect and obeyed and respected for 14 consecutive years, during which it has been used by the Congresses of Nicaragua as the basis of their deliberations, inasmuch as the true reason to oppose the treaty is, as explained to our Minister in Managua by General Zavala, competently authorized by the Government of Your 287 Excellency to discuss this subject, not because the said treaty lacks any indispensable solemnity for its validity, biit because it is believed to be injurious to the interests of Nicaragua. This assertion of General Zavala has been corroborated by the Nicaraguan press, which lia^ gone as far as saying that the repudiation of the treaties, when injurious, has prevailed in all nations when able to cause them to prevail ; that Na- poleon III nullified the treaties of 1815 ; that Germany broke the treaty by which Eichelieu had taken from her Alsace and Lorraine ; that Russia has asked to be exempted from the obligation contracted in the treaty of Paris, and that Austria will break also the Villafranca treaty. But, Mr. Minister, if I should propose to enter, to-day, into the analysis of this question, I would show that neither Napoleon III, nor Germany, nor any one of the nations which you refer to, has ever said, " We do not respect that treat}^, because it is injurious to us ; we do not respect it, because we were compelled to sign it." What has often happened is, that the circumstances and interests of the nations having been modified, the pre-existing conventions have had to be modified also, either by mutual consent or by force ; but, in this condition, neither Costa Rica nor Nicaragua find themselves. In my despatch of the 10th of June, it was gratifying to me to set forth that at the time in which the treaty was signed Costa Rica did not overpower Nicaragua ; that it was a friendly nation, a sister which had come to her territory to assist her in her war of independence and render her efficient aid against an enemy who had proclaimed, on her soil, slavery and death. ^ The disastrous discord between Leon and Granada, and the bitter opposition between the parties which called them- selves Legitimists and Democrats, attracted to Nicaragua the filibuster invasion. And when that Republic was invaded the Costa Rican people shed their blood and spent their for- tunes to save Nicaragua from foreign domination. 288 Costa Eica took possession of tlae steamers of the lake and of the San Juan river, carried its flag in triumph up to Punta de Castilla, prevented the filibusters from entering the great fluvial way, and put an end to the exterminating war which afflicted Nicaragua. • Your Excellency will allow me to say that I cannot under- stand how these acts of redemption can now be made the basis of a charge against Costa Rica and the foundation for the statement that the treaty is null, without considering that the invalidity of the same will, no doubt, bring new calam- ities upon the two sister and bordering Republics. * * * Mr. Minister, the above-made statements are explicit, very explicit indeed. They explain that the customs service is au- thorized only for the purposes herein designated, and for nothing else ; and that, therefore, the action of the officers thereof will be approved by the Government of Costa Rica, when circumscribed to the limits set forth in the paragraph above copied, and disapproved when extended to more than allowed by the language of the same paragraph. The practice among nations, and the writings of the authors on public law, show to us that the free navigation of the rivers is obtained by conventions made with the states through the territory of which they pass. It was by treaty that the free navigation of the Rhine was obtained. It was by treaty that, in the latter part of the last century, the free navigation of the Scheldt river was obtained. It was by treaty also that the free navigation of the Elbe, the Po, the Danube, the Mis- sissippi, the St. Lawrence, the La Platta, and the Amazon rivers was also obtained. This universal practice must serve Costa Rica as a guide in regard to the free navigation of the Colorado river, so much the more so as this river is found in all its extent within the Costa Rican territory. The writers of public law agree, in regard to this kind of rivers, in the doctrine that the state to which they belong can legislate in regard to them as they may deem best. Costa Rica, taking the most liberal point of view possible, 289 provided, by Article XII of its Constitution, that foreigners may exercise tlieir industry and commerce, own real estate, purchase and manage the same, navigate the rivers, and freely exercise their religion. Under this provision all Nicaraguans can na\dgate the Colorado river with no more limitations than those prescribed by the revenue laws to prevent smuggling. These revenue laws are limited to what I explained to you in my despatch of the 10th of June, and which I have re- peated in the present ; and beyond that they do not go. In order that the interest of Costa Rica may not suffer detriment and that Nicaragua is not injured, and that the freedom of navigation on the river is not interrupted, it w^ould be advisable to resort to some means suggested by mutual consent. His Excellency the Chief Magistrate of this country will hear with pleasure anything which the Government of Nicaragua should suggest in this respect, because what he wishes is a peaceful and friendly adjust- ment. I believe that the Government of Your Excellency feels itself animated by the same sentiments ; and in this confi- dence I have the honor to repeat that I am, Your Excellency's most obedient servant, LORENZO MONTUFAR. To His Excellency The Ministee of Foreign Relations of the Republic of Nicaragua. 19 290 No. 58. Costa Rica declares that it will keep its custom-houses, and maintain its sovereignty over the whole territory which ac- cording to the treaty of 1858 belongs to it, unless other li7nits are not established by mutual agreement or arbitral decision. San Jose, Decemher 3, 1875. Mr. Minister : I have the honor to acknowledge the receipt of the official communication which you were pleased to send me under date of November 3 ultimo, which did not reach me until the 30th. * * * You will allow me, Mr. Minister, in referring to the sub- ject-matter of your despatch, to set forth that the custom- house force, because it is nothing else, referred to, is not a part of the military forces of this Republic, and it is the same and even smaller than the one which in former times the Government of Costa Rica used to keep stationed either at the mouth of the San Carlos river, or on the Sarapiqui, or the Colorado river, or Punta de Castilla ; and as neither its establishment nor its preservation on any of those points can be considered as a wrong done to Nicaragua, or an abridg- ment of her territorial rights, my Government sets forth that in the use of the rights that the treaty of April 15, 1858, gives it on that territory, and within the limits by the same treaty prescribed, it will exercise' such acts of dominion and sover- eignty as may be proper as long as by decision of an Arbi- trator, to whom it has offered to submit the question of the validity of the same treaty, the invalidity of that instrument is not declared, or as long as by an act of the same Arbi- trator, or by mutual agreement of the two Governments, other boundaries are not marked out. With the greatest consideration I renew to you my re- spects, and subscribe myself your attentive servant, YICENTE HERRERA. To His Excellency The Minister op Foreign Relations of the Republic of Nicaragua. 291 No. 59. Costa Rica protests against the non-compliance 07i the part of Nicaragua of Article VIII of the ty^eaty of limits. National Palace, San Jose, June 26, 1886. To His Excellenc]! the Minister (f Foreign Relations of Nicaragua^ Managua. Sir : Tlie courteous despatch of Your Excellency of the 31st of May ultimo, in reference to Nos. 21 and 23 of the official " Gaceta " of your Republic, has reached my hands, together with the said newspaper. In the latter one it appears published as a law of this Re- public the contract of a maritime interoceanic canal, cele- brated by your Government with the " Provisional Company of Interoceanic Canal," organized in New York. His Excellency the President, well-informed of that im- portant document, has directed me to answer Your Excellency as follows : While it is true that by Article XXIII of the contract, the dividing line established by Article II of the treaty of April 15, 1858, between this Re-public and yours has been respected, it is also true that the provisions of Article VIII of the same treaty has not been complied with. Said Article reads : " Article VIII. If the contracts OF canalization or transit which have been celebrated by the Government of Nicaragua, before it had knowledge of this treaty, should for any reason whatsoever prove to be WITHOUT force, NICARAGUA BINDS HERSELF NOT TO ENTER INTO ANY OTHER AGREEMENTS TO THE SAME EFFECT WITHOUT FIRST LISTENING TO THE OPINION OF THE GOVERNMENT OF CoSTA RiCA AS TO THE DISADVANTAGES THAT THE TRANSACTION WOULD PRODUCE FOR BOTH COUNTRIES, PROVIDED THAT THE SAID OPINION IS GIVEN WITHIN 30 DAYS SUBSEQUENT TO THE RECEIPT OF THE COMMUNI- 292 cation asking for it, should nicaragua have stated that the decision was urgent ; and if the natural rights of Costa Eica are not injured by the transaction the opinion WILL be advisory." Besides this it appears, as being almost an impossibility, that the building of the canal under the conditions agreed upon fails to affect the territorial rights of Costa Rica, since Costa Rica owns, in common with Nicaragua, the Bay and port of San Juan del Norte, and has also in common the free navigation of the river of the same name, and exclu- sively from the mouth of the river in the Atlantic up to a point three miles this side of Castillo Yiejo, the right bank, and the Colorado river. Great is the confidence that my Government reposes in the high sense of justice of the Government of Your Excel- lency, for which reason it is impossible for it to think that the non-compliance with Article VIII has been due to the evil purpose of violating the faith of a treaty and of break- ing faith with this Republic which is the most intimately con- nected with Nicaragua in family relations, interests, and des- tinies, and, at the same time, with justice and honor. My Government expects, with good foundation, that the cause of the action referred to is to be found elsewhere, and that it does not involve injury, nor does it prevent the omis- sion noticed from being corrected. But as long as such explanations as are competent from the enlightened Government of Your Excellency do not give the fact alluded to its correct meaning, the fact itself is to be declared inadmissible. Costa Rica does not consent to it, not because it is moved by material interests which it willingly would sacrifice for the sake of another greater and more important benefit for the whole of Central America, as the canal in question is, a work of which the Costa Rican press has occupied itself with great enthusiasm, and in which my Government has always been ready to co-operate in all earnest, but because its honor and 293 dignity so demand it, and the honor and dignity of a nation are above everything else. My Government expects that the Government of Your Excellency, without any injury to its own sense of self-respect, since to recognize the rights" of others is never wrongful, will find the means that the rights of Costa Rica remain respected, and that the harmony which now exists between both Re- publics and which may exercise such beneficial influence on their common future does not suffer detriment. But as long as the above said omission is not corrected in some pertinent way, my Government sees itself compelled to protest against the validity of the canal contract concluded in Managua on the 25th of May ultimo, without previous audience of Costa Rica and in violation of the article above copied of the treaty of April 15, 1858. May Your Excellency be pleased to submit the above to His Excellency the President of your Republic and accept the distinguished consideration with which I subscribe my- self, your most attentive and obedient servant, JOSE MARIA CASTRO. 294 No. 60. The ex])lanations of Nicaragua as to the non-compliance with Article YIII of the treaty of limits are accepted. Department of Foreign Relations oe the Eepublic of Costa Rica, National Palace, San Jose, Septemher 10, 1886. Sir : This Department has received the courteous despatch of Your Excellency, dated on the 23d of July ultimo, in answer to mine of the 21st of June instant, wherein I had protested against the validity of the canal contract celebrated between Nicaragua and the Provisional Company of Inter- oceanic Canal, organized in New York. . The explanations given by Your Excellency in regard to the causes which prevented the Supreme Government of your Republic from complying with the provisions of Article YIII of the treaty of April 15, 1858, are satisfactory to the Gov- ernment of this Republic. So it was desired by this Govern- ment, which was sorry to find that national dignity opposed an obstacle to its wishes under other aspects of being pro- pitious to a contract of such vital importance for the whole of Central America. Without prejudice to what I have stated, and referring to the idea enunciated by Your Excellency, that the validity of the treaty of April 15, 1858, has not been recognized by Nic- aragua, I must tell Your Excellency that, although in the opinion of my Government the said validity rests upon in- destructible grounds, and admits of the best defence, it deems it better not to discuss at present the said question, both because of the unpleasant feelings to which it has given rise at other times, and because this Government will readily accede to the rescissio?i of the aforesaid treaty, and agree that things co7ne hack to the state in which they were before April 15, 1858, provided that the Oovernment of Your Excellency 295 is the one xohich suggests such a thing, since Costa Rica does not want to take the initiative in the matter. I avail myself of this opportunity to reiterate to Your Ex- cellency the protests of high consideration with which I sub- scribe myself, your obedient servant, JOSE MARIA CASTRO. To His Excellency The Minister of Foeeign Relations of the Republic of Nicaragua, Managua. / 296 Document No. 61. Opinion of the historian of Central America^ Dr. Don Lo- renzo Mo7itufar, at present the Secretary of State of the Republic of Guatemala, in regard to the treaty of limits between Costa Rica and Nicaragua. This high body (the Central American Congress) never took further action upon this subject (the secession of Nicoya), and the Federation was dissolved, Guanacaste remaining united to Costa Rica. Nicaragua never showed herself satisfied with this diminution of her territory, but never thought it advis- able to raise an army to obtain the recovery of what she thought to be her property. The whole question became reduced to diplomatic missions, or pamphlets, or printed sheets, more or less offensive. The Walker war caused the Central American people to understand that this everlasting discord between two countries, equally interested in main- taining the independence proclaimed in September, might be- come utterly injurious to all. Through the action of the other Governments, and es- pecially of the Government of Salvador, a treaty of limits was resorted to to settle the question. The treaty was made and signed by the Plenipotentiaries Gen. Don Jose Maria Canas and Gen. Don Maximo Jerez. This treaty was ratified, exchanged, and promulgated as law of limits. Subsequently there have been questions in regard to its validity. It is necessary to give an idea of the ques- tion of limits between Costa Rica and Nicaragua, not with the particularity of details with which both Governments have treated it in their messages, their ofl&cial notes and their reports, and the respective legislative bodies, because this would be to increase too much the size of the present volume, but as laconically as possible. The importance of this question depends upon the hopes frequently entertained 297 that an international canal will be finally opened. From the times of the conquest a passage from sea to sea across the American continent was looked for. Magellan found the straits that bear his name, but his discovery does not satisfy the aspi- rations of the world because it is very near Cape Horn. The eyes of the intelligent have fixed themselves sometimes on the Darien, sometimes on Tehuantepec or other places more or less adequate, and sometimes on the Isthmus of Nicaragua. The Spanish Cortes advocated the latter idea. There is in favor of it, not only the limited extent of the Isthmus, but also the existence of two lakes, namely, the one of Granada and the one of Managua. The project is to cause the vessels to reach the Lake of Granada through the San Juan river, and from there to pass into the Pacific Ocean. Two means have been suggested for that : one consisting in cutting the ground between the Lake of Granada and the Pacific Ocean, and the second consisting in canalizing the Tipitapa river, take it to the Managua Lake, and from there open a canal to the Southern Sea. The enterprise is vast, but many engineers and a great number of scientists have thought it practicable ; and there have been Nicaraguan patriots who have sometimes imagined that the vessels were already passing from one ocean to the other. Those who believe the great canal to be practicable feel a great interest in the demarcation of the dividing line between Costa Rica and Nicaragua, because the share that Costa Rica will have in the canal will depend upon it. The historian Juarroz, in speaking of the Costa Rican terri- tory, says : " Its boundaries on the Northern Sea are from the mouth of the San Juan river to the Escudo of Veragua, and on the south from the Alvarado river, dividing line of the Province of Nicaragua, to the Boruca river, end of the King- dom of Tierra Firma." Don Felipe Mohna says the same thing ; but the testimony of Molina may with reason be impeached, because, when he 298 wrote, lie was in tlie service of Costa Eica, and, therefore, he had an interest in securing the triumph of the cause entrusted to his defence, not only for the benefit of Costa Kica, but for his own reputation. But the testimony of Juarroz is unimpeachable. Juarroz wrote in Guatemala, and had no reason of any kind to feel any more affection for Costa Rica than for Nicaragua. He based his statements upon the documents he had before his eyes, and these completely authorize his assertions. Philip II, King of Spain and of the Indies, signed at Aranjuez the commission of Don Diego de Artieda y Chiri- nos as Governor and Captain-General of the Province of Costa Elca, and marked as the limits of his command from the mouth of the Desaguadero (outlet), which is the San Juan river, to the Province of Veraguas, and from the limits of Nicaragua on the Nicoya side to the valleys of Chiriqui. The limits between Costa Rica and Nicaragua being the Desaguadero (outlet), it is indubitable that Costa Rica has a part in the interoceanic canal, because it is precisely through that outlet that the vessels are to be introduced from the Atlantic into the Lake of Granada. But no part belongs to Costa Rica on the navigation through the lake, because the Salto or Alvarado river serves as a limit. An event came to favor Costa Rica, and this was the an- nexation of Guanacaste, whose limits extend to the La Flor river. By virtue of this annexation the boundary between Costa Rica and Nicaragua was the Great Lake and the whole San Juan river. The Federal Congress approved the annexation, but not finally. The approval was temporary, until Congress, in use of its powers, should fix the limits of each State. But the Federation was dissolved and the limits were never fixed. Nicaragua claimed several times the restoration of Guana- caste, but Costa Rica refused to surrender it. This claim gave occasion ,to several acts of the people of Guanacaste favoring their annexation to Costa Rica ; and the Quijano 299 attempt of 1836 shows that they were veiy well pleased with their new allegiance. The unceasing agitation created by the disagreement of both Governments gave occasion to fear that the interest of the whole of Central America might be endangered. The filibuster war caused this danger to be serious and percepti- ble ; and as soon as the war ended the Government of Sal- vador sent to Costa Rica, upon agreement with Nicaragua, General Don Pedro Romulo Negrete, in the capacity of Envoy Extraordinary and Minister Plenipotentiary, to pro- pose some settlement. Gen. Negrete aifirmatively stated afterwards, that he had instructions to declare war against the State which would refuse to put an end to the question by means of a tTeatj. The Government of Nicaragua sent to San Jos^ Gen. Don Maximo Jerez as her Plenipotentiary ; and Don Juan Rafael Mora, then President of Costa Rica, conferred full powers on Gen. Don Jose Maria Canas, who had distinguished himself so much in the war against the filibusters. Then the Canas- Jerez ivesitj was signed, and its Article II reads as follows : " The dividing line between the two Republics, starting from the Northern Sea, shall begin at the end of Punta de Cas- tilla, at the mouth of the San Juan de Nicaragua river, and shall run along the right bank of the said river up to a point three English miles distant from Castillo Yiejo, said dis- tance to be measured from between the exterior works of said castle and the above-named point. From here, and taking the said works as centre, a curve shall be drawn along said works, keeping at the distance of three English miles from them in its whole length until reaching another point which shall be at the distance of two miles from the bank of the river on the other side of the castle. From here the line shall continue in the direction of the Sapoa river which empties into the Lake of Nicaragua, and it shall follow its course, keeping always at the distance of two miles from the right bank of the San Juan, all along its windings, up to 300 reaching its origin in the lake ; and from there along the right shore of the said lake until reaching the Sapoa river where the line parallel to the bank and shore will terminate. From the point in which the said line shall coincide with the Sapoa river, a point which, according to the above descrip- tiooi, mnst be two miles distant from the lake, an astronomic straight line shall be drawn to the central point of the Sali- nas Bay on the Southern Sea, where the line marking the boundary between the two contracting Republics shall end. By this article both Republics yielded somewhat in their pretensions. The Costa Rican territory is not limited by the whole course of the San Juan river. It begins at the mouth of this river, follows its right bank up to a point this side of Castillo Viejo, and three miles distant from its fortifications. The Costa Rican territory does not reach the lake, but de- viates from it, as expressed by the treaty. It does not either reach the La Flor river, but remains limited to the centre of the Salinas Bay. Nicaragua, on her part, abandoned also many of her pre- tensions. Now, her territory does not reach the Salto or Alvarado river, but is limited to the Salinas Bay and the line drawn by the treaty. This treaty was made by two plenipotentiaries competently authorized; it was approved by the Government of Costa Rica and by the Government of Nicaragua ; it was ratified by the Congress of Costa Rica and by a Constituent Assembly of Nicaragua ; the ratifications thereof were exchanged within the time designated in it ; it was promulgated after the ex- change and published as the law of limits in the official news- paper of Nicaragua. Costa Rica communicated the treaty to the foreign diplomatic body accredited near its Government, and also to its diplomatic body abroad. Nicaragua also com- municated it to the Nicaraguan and the foreign diplomatic body, and all the friendly nations considered it as an accom- plished and unimpeachable fact. For several years several legislative bodies of Nicaragua enacted laws fixing jurisdic- 301 tional limits, taking it for granted that the treaty was valid. The lapse of seven years gave it greater strength. During that whole period not a single word was uttered officially against the treaty. But after the lapse of more than seven years, Lie. Don Tomas Ayon, Minister of Foreign Relations of the Republic of Nicaragua, deemed it advisable to send a message to the Legislative body, objecting to the validity of the treaty. This came to pass as follows : In 1868 the Government of Nicaragua, tired of the delays of certain companies in the opening of the canal, entered, in Paris, into a contract with Monsieur Michel Chevalier, throvigh the same Senor Ayon. Chevalier was well acquainted with the Canas-Jerez Treaty, and thought that it was absolutely indispensable to respect it, and required as a si?ie qua non condition that Costa Rica should adhere to the agreement. So it was stipulated ; and the Government of Costa Rica adhered, and its Congress ratified the agreement. Senor Ayon had been dazzled by the official position of Chevalier. He thought that for a Senator of the Empire of Napoleon III nothing could be difficult, and that the Emperor had an interest in the canal, both for the sake of extending his influence in the New World and also for the purpose of accomplishing a certain scheme which had been suggested to him and which he accepted while he was imprisoned at the Castle of Ham. But circumstances had changed. The Emperor of the French was preoccupied with European affairs, and a sad disappointment had shown him that his sup- posed omnipotence did not extend to the world of Columbus. Chevalier could not get the funds required for such a vast enterprise, and although with his contract in his hands he ap- plied to the great capitalists of Europe, and looked for stock- holders and partners, he only received attentions and fair words, but nothing positive. It may be said that he went from door to door asking for protection, and that none was given him. 3Q2 All of this was perfectly well known, both in Costa Rica and Nicaragua, but Chevalier was always laboring under de- lusions, and imagined the great enterprise to be accomplished under his auspices. These delusions he unceasingly trans- mitted to Senor Ayon, who, having returned to his country from Europe, could not see, on account of the distance, the difficulties encountered by Chevalier, the repulses which he constantly met, and the hopeless prospects that the canal should be ever built under that contract. And he went as far as to call unpatriotic all those who did not share his delusions. The Government of Costa Rica, well informed by its agents abroad of the true situation of Chevalier, understood that the contract, under those circumstances, instead of doing any good was really injurious to Costa Rica, to Nicaragua, to Central America, and to the whole world, because as long as it was in existence no further negotiations could be attempted either with the United States, which was the nation called by nature to do the work, or with any other country. The Costa Rican Executive happened to be invested with unlimited powers, and, after having meditated carefully upon the subject, considering it under all its aspects, it decided to declare that the Ayon-Chevalier contract, as far as Costa Rica was concerned, had become inoperative. This declara- tion: made a great sensation among the few Nicaraguans who still shared the delusions of Senor Ayon, and caused them to endeavor to destroy the Canas-Jerez treaty, with which, if obtained, they would be able to enter into canal negotiations without the intervention of Costa Rica. Senor Ayon does not deny that the treaty was made by legitimate representatives of both countries ; nor that it was approved by both Executives ; nor that it was ratified by the Congress of Costa Rica and the Constituent Assembly of Nicaragua ; nor that the ratifications thereof were exchanged in due form ; nor that the treaty was solemnly promul- gated in both countries ,as the law on limits ; nor that the 303 two coutracting parties respected it and constantly complied with its provisions for more than seven years without any objection or opposition. Senor Ayon does not deny any- thing of the kind ; but he grounds his objection on another foundation. He says that the organic law of Nicaragua which marked the limits of the state included the territory of Guanacaste ; that the Canas-Jerez treaty marks different limits and therefore modifies • and amends the Nicaraguan Constitution ; that the Constitution, then in force in Nicaragua, provided that no amendment or change could be made in it by a decree of a Legislature without the ratifi^cation thereof by another subsequent Legislature ; that the Canas-Jerez treaty was ratified by one Legislature, but that it was not even sub- mitted for approval to the next one ; and that, therefore, there is in radice a cause of nullity. The Legislative body of Nicaragua did not take any action upon the subject ; and the question remained undisposed of. Costa Rica has replied to Senor Ayon stating that the Congress which ratified the treaty of Nicaragua was not an ordinary Congress but a Constituent Assembly, having the most competent authority to reform the Constitution and to make a new one ; that if the said Assembly was convened for the purpose of framing the organic law of the state, no reason can be alleged to deprive it of the right to mark the bound- aries. It has also been said that even in case that the As- sembly, instead of being a constituent body would have been an ordinary Congress, the treaty would not be void, as claimed by Senor Ayon, for the reason that several Nic- araguan Legislatures, one after another, took it as valid, firm, and unimpeachable, and enacted laws according to its pro- visions, and established jurisdictional limits in conformity with its text. The Costa Rican Government always maintained upon these grounds the validity of the treaty, and it may be de- pended upon that if the question should be submitted to the arbitration of a power friendly to both contracting parties, 304: no nation in the world would declare the treaty to be null upon the arguments and doctrines of Senor Ayon. Certain Executive tendencies have sometimes been felt in Costa Eiica, although unsupported by the general opinion of the Costa Eican people, in favor of the invalidation of the treaty, in order to secure, through this action, that the bound- ary should be again the whole of the right bank of the San Juan river from Greytown to San Carlos, and from the Lake of Nicaragua to the La Flor river, as it has been believed to be the limit marked by nature. If these views should prevail, and the treaty should be set aside, the questions between Costa Rica and Nicaragua would become again very grave and uncertain. But if the difficulty is confined simply to the determination of the question, whether the Canas-Jerez treaty is or is not valid, there can- not be any doubt in law as to the verdict which would be rendered. And so the two Republics understand since they have combined to respect the limits such as marked by the treaty. 305 No. 62. JExtrads from, the '■^.History of Nicaragua from the Remotest Times to the year 1852," written hj order of General Don Joaquin Zavala^ President of the Repuhlic, hy Sehor Dr. Don Tomas Ayon. Vol. I. Granada ; Printing office of J^l . Oentro Americano, 1882. — The author of said history gives the name of Desaguadero to the San Juan de Nicaragua river. From Book 3, Chapter I : " There being no necessity to stop in the Province of Nic- aragua, that is to say, in the territory which is now the De- partment of Bivas, he proceeded from Granada to Tina- bita City without stopping at Masaya, which was a great and populous city. Before leaving he took a brigantine, which he caused to explore the Great Jjake, until finding its outlet {the San Juan), but the brigantine could not go farther than this outlet, because there were many rocks and two great rapids." From Book 3, Chapter III : " In compliance with royal instructions, he engaged him- self in enlisting sufficient force to go, under the command of Captain Gabriel de Bojas, to discover the outlet (Desa- guadero) of the Lake of Nicaragua, and found there a town. This enterprise was considered by the King of Spain as a most important one, because, after careful explorations of the land and the lake, he wanted to establish through the said outlet the communication between both oceans, and find thereby the shortest route to the Spice Islands." From Book 3, Chapter II : . " Knowing the interest which the court felt in finding the route to the Moluca Islands, several persons addressed the King, and set forth that, as the natural straits of communi- cation between the Atlantic and the Pacific Oceans had not 20 306 been found, they desired to call his attention to one of the four routes which suggested themselves to establish com- munication between both oceans. The first of these routes vms the outlet {the Desaguadero) of the Great Lake of Nicara- gua, through which large vessels went up and came down^ although it has still some dangerous rapids, and by opening a canal, through the few leagues of land between the lake and the Pacific Ocean it would he easy for all vessels to reach that ocean. The second through the Lagartos river, also called Chagres, which rises at about 5 or 6 leagues from Panama, where a canal could be opened in order to connect the river with the ocean. The third, by the river of Vera Cruz or Tehuantepec, through which the Mexican merchants used to navigate with their merchandise from one sea to the other. And the fourth, the passage from Nombre de Dios to Panama, where it is assured that there is no great diJEficulty to open a road, although there are some mountains. They also set forth that between the Uraba Gulf and San Miguel there were only 25 leagues, and that, although the difficulties to open a canal there would be great, the power of the Kings of Castile was still greater. They said, further, that the ad- vantages of the work were indisputable since a third part of the distance to the Moluca Islands could be saved in this way, with the advantage that the voyage could be always made within dominions of Spain, without interference on the part of the Portuguese, and avoiding expense and labor." From Book 4, Chapter lY : " They said that from the Lake of Granada to the port of San Juan del Sur, there were onl}'^ 3 leagues of land, and that with little labor and cost cars could go from the town of Nicaragua (Rivas) to that port ; that the frigates and the other men-of-war used, to pass from the same lake, through the river of El Desaguadero, to Nomhre de Dios on the Northern Sea, where there was a port which xoas considered to be the largest and the best yet discovered. ; and that for these reasons it was advisable to order that the com- 307 7nerce with the Souf hern Sea should continue to he made hy the way of El Desaguadero, saving thereby great expenses and trouhle which were encountered at Nomhre de Dios hy those ar- riving from Spain and those who, coming from Peru and other lands, proceeded to Spain. They remarked also that the climate of Nombre de Dios was verj^ unhealthy, and that the greatest part of the Spaniards arriving there died, and that those who escaped death were left in the greatest desti- tution on account of the extreme poverty of the land." From Documents appended to the Book. "Item. Your Majesty will know that between the Lake of this city and the port of San Juan of the Province of Nic- aragua on the Southern Sea there are no more than 3 leagues by land, so that, with very little labor and expense, cars can go from the town of Nicaragua to the port of San Juan ; and from the Lake of this city to the Northern Sea the frigates and the 'tnen-ofioar which leave this j:>lace go by water to Wombre de Dios, hy the river of El Desaguadero, which empties in the Northern Sea, lohere there'is a port, the greatest and the best yet discovered. " For the reasons and causes aforesaid, and according to what we have seen here and experienced, it seems to us that if Your Majesty is pleased to order that the commerce with the Southern Sea continues to be carried on through this outlet (Deste Desaguadero), a great many fatigues and ex- penses, which are encountered and incurred at Nombre de Dios by those coming from Spain or going there from Peru and other countries, would be saved ; all of this, without counting that the greatest part of the Spaniards who come to Nombre de Dios and the cit;^ of Panama, get sick and die. And, as Hving is so expensive there, those who escape death become so poor that they scarcely have means to continue on their voyage." 308 No. 63. Organic Laws of Costa Rica in regard to limits with Nic- aragua. Decree of'''' Basis and Guarantees " of March 8, 1841. Article 1. Sec. 2. The territory of the State (Costa Rica) is comprised within the following limits : On the west, the La Flor river and the continuation of its line along the shore of the Lake of Nicaragua and the San Juan river, down to the mouth of the latter on the Atlantic Ocean ; on the north, the same ocean from the mouth of the San Juan river to the Escudo de Yeragua ; on the east, from the last named point to the Chiriqui river ; and on the south, from the last named river along the coast of the Pacific Ocean, up to the La Flor river. Constitution of April 10, 1844:. Article 47. The State recognizes as the limits of its terri- tory the following : On the west, beginning at the mouth of the La Flor river on the Pacific Ocean, continuing along the course of said river, the shore of the Lake of Nicaragua and the San Juan river, until the mouth of the latter on the At- lantic ; on the north, the Atlantic Ocean from the mouth of the San Juan river down to the Escudo de Veragua ; on the east, from the last named point to the Chiriqui river ; and on the south, from the mouth of this river to the mouth of the La Flor river. But the border line on the side of the State of Nicaragua will be finally settled when Costa Rica shall be heard in the national representation, or when in default of this hearing the affair is submitted to the impartial decision of one or more States of the Republic. 309 Constitution of Fehruary 10, 1847. Article 25. (It is exactly in the same language as that used in the Constitution of 1844.) Constitution of Hovemher 30, 1848. Article 7. The limits of the territory of the Eepublic are those of the uti possidetis of 1826. CondHutionof Deceinter '^^^ 1859. Article 4. The territory of the Eepublic is comprised within the following limits : On the Nicaraguan side, those fixed by the treaty concluded with that Eepublic on April 15, 1858 ; on the side of New Granada, the limits of the uti possidetis of 1826, subject to what may be determined by ..subsequent treaties with that nation ; and on the other two sides by the Atlantic and Pacific Oceans. Constitution of Ap>ril 15, 1869. Article 3. The limits of the territory are the following : On the north, the Atlantic Ocean ; on the south, the Pacific Ocean ; on the side of the United States of Colombia, those of the uti possidetis of 1826 ; and on the side of Nicaragua, those established by the treaty of April 15, 1858. 310 No. 64. Failure of canal negotiation toith the Oovernment of the United States, owing to the fact that Nicaragua refused Costa Rica intervention in it. [From Message of the President of the United States to the Congress of the Nation]. Towards the close of the last Administration negotiations were earnestly conducted here with Nicaragua relative to a ship canal. The result thereof, however, did not prove suc- cessful because the pretensions of the Nicaraguan Govern- ment were not acceptable. " As the canal through the Nicaraguan route must proha- hly have to 2)'iss aloyig a portion of the San Juan river, over which Costa Rica clai?ns to have Jurisdiction, it was advisable to celebrate a treaty with the latter Republic as well as with% Nicaragua in regard to this point. To this end. the proper in- structions were transmitted to the American Minister in Cen- tral America.; but he has reported that Nicaragua was un- willing to negotiate, especially in connection with Costa RicaP [From the " Gaceta de Nicaragua," No. 37, July 26, 1879.] THE END. EREATA. Page. Line. Reads — Should read— 15 9 If, as I confidently hope, If, as I confidently hope, upon grounds which cause me to en- tertain a profound conviction. 21 14 Rio Grande river. Eio Grande. 22 2 1573. 1576. 23 19 " correjidor." " corregidor." 24 4th line of notes. -Peealta. Peealta. 24 Sth line of notes. ' Archivo. " Archivo. 25 5 Ujarras (Curredabat), Ujarraz, Curridabat, Aserri, la Asserri, la Villeta, Villita, 25 16 Potosi. Potosi. 25 18 Diria, Dinomo. Dirid, Diriomo. 25 19 Naudasmo, Nandasmo, 25 20 Nisidiri, Nindiri, 25 21 Subtiada. Subtiaba. "33 8 1541. 1561. 33 13 TlEEBA FlEMA Tieeea Fieme. 36 30 Perera. Pereyra. 37 2 Laens. Saenz. 37 11 British Cyclopaedia. Encyclopaedia Britannica. 42 21 easily enter it. easily enter it.^ 42 1st line of notes. Package. File. 43 11 According to that treaty According to that treaty, a strip of the right bank of the land three English miles wide, river, from its origin on the right bank of the river. in the Lake up to a from its origin in the Lake, to a point three miles point three English miles from from Castillo Viejo, Castillo Viejo, around which the belongs to Nicaragua. boundary describes an arc of a circle, the fortress serving as cen- tre, which ends three miles be- low, on the water's edge, belongs to Nicaragua. 56 3 April 18. April 15. 56 29 Minister. Commissioner. 61 9 ratified. approved. 62 17 article 149. article 194. 65 17 1853. 1854. 65 25 the organic law of 1853, the laws of organic character passed by the Assembly of 1854. 66 19 1853. 1854. 69 14 1853. 1854. 76 11 1851. 1857. 86 6 Trevelyn Trevelyan 88 14 in Central America. to Nicaragua. 116 9 negotiator negotiatprs It EERAT A— Continued. Page. Line. Keads — Should read— 124 22 928 298. 141 5 150 90 141 8 east right 144 29 1858 1856 157 17 specia special. 158 29 Article IX Article XIX. 187 18 is concerned, is concerned, as Nicaragua is by treaties. 193 6 November November 8, 1857 208 4 Rafael Moea Juan Eafael Moea 215 36 Eafael Mora Juan Rafael Mora 231 25 straight line straight line established between the same limit and the limit on the noi-thern side 285 4 Bolarios Bolafios 242 3 Sarapaqui Sarapiqui 254 31 Nicaragua Guatemala 268 18 Article XLIII Article LIII 269 19 Article XLVI Article LVI 271 13 northwest northeast 272 34 Arsenal Arenal 280 26 Pelez Peldez 280 30 Suchitepiquez Suchitepequez 281 9 Firma" Firme " 291 5 1886 1880 294 7 1886 1880 297 34 Firma " Firme " 305 29 Chapter II Chapter IV 307 25 Deste deste LbJa^ M