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', t . c ;?« ' "^^ V ^ o,^ !L^^° %^' ^,^n%: ^.# rA'i^//^ t^ r A' >^ .*/\^^ .Oo ^*5L!L5„5 - ,0 < >, '. v,J? ■' ^..^ / ' Jra* "^ « ^ ■--■ .,\ -s>^ -^ » '*»^^ f"; •>:^"^ V ' ^^ /% ^,e~-l' ^ ^ % Digitized by tine Internet Arciiive in 2010 witii funding from Tine Library of Congress littp://www.arcliive.org/details/americanbananacoOOpalm 33 Tlio SUolii Ul?or iniirhs ttm tlatiit quo ot Jurlwllotlon bolwooH Oo»U Itlcft and Punnimv. Tho MoUoniioll rimitnlloiiB llo bolwoon the doltwl linoR mid tlio Wvor I »l(lo. Tlio Aiiliiu THE AMERICAN BANANA COMPANY An account of -the operations of Herbert L. McConnell in planting banana lands on the Sixola river, and of his acts in Ccsta Rica and Colombia (later Panama) relating thereto, with an explanation and copies of documents and correspondence. Also an account of the boundary controversy between the nations mentioned. B. W. PALMER 33 t PRIVATELY PRINTED BOSTON Geo. H. Elljs Co., Printers, 272 Congress Street 1907 DEC le m^ .X37T/3 v5: o. /3j '^SCD *' •X CONTENTS. PAGE iNTRODtrCTOET EXPLANATION i Chapter I. — H. L. McConnell Letters: Important Letters from and to H. L. McComiell A Chapter II. — Agreement of H. L. McConnell not to compete, etc.: Agreement for the Formation of the Camors-McConneU Com- pany and Agreement of H. L. McConnell not to compete with said Company 1 Chapter III. — The Romero Concession: Copy of the Romero Concession 6 Transfer of Romero Concession 8 Suspension of Romero Concession 11 Refusal of Panama to recognize Romero Concession 12 Licenses to plant so-called (McConneU's only Titles) 14 Chapter IV. — The American Banana Company: Prospectus of the American Banana Company 23 Certificate of Incorporation of the American Banana Company 26 Assignment from H. L. McConnell to the American Banana Company 30 Transfer in Bocas from H. L. McConneU to the American Ba- nana Company 32 Chapter V. — Injunction Proceedings against H. L. McConnell in the United States Circuit Court: Opinion of Judge Toulmin granting Preliminary Injunction against H. L. McConnell 36 Opinion and Judgment of the United States Circuit Court of Appeals, affirming Judgment of Circuit Court 43 Testimony of John B. Camors 45 Decree of Judge Toulmin granting Perpetual Injimction ... 52 Perpetual Injunction 53 Chapter VI. — Correspondence with and Action of the State Depart- ment OF THE United States: Preliminary Letters 55 McConneU's First Memorial 71 Further Correspondence and Attempts to obtain Modus Vivendi from the Government of Costa Rica 85 Communication of H. L. McConnell to the Secretary of State of Costa Rica, dated April 3rd, 1905 91 Letter of JMinister Astua Aguilar dated April 12th, 1905 ... 93 Letter of Everett P.Wheeler relating to McConnell's Second Memorial 132 McConnell's Second Memorial 135 Fiirther Correspondence 152 Letter of Minister Astua Aguilar dated March 3rd, 1906 . . . 154 Letter of Minister Root dated April 16, 1906 163 Letter of Minister Luis Anderson dated May 26th, 1906 . . . 170 Memorandum of Storey, Thorndike, Palmer & Thayer on the Law of de jure and de facto Jurisdiction 178 Chapter VH. — Legal Procedure in Costa Rica: Acquisition of the Astua Denouncement 185 McConnell's Power of Attorney 190 Decision of the Court of Contencioso Administrativo rejecting McConnell's Objections 192 Decision of the Supreme Court aflfirming above, dated 13th of October, 1905 193 Decree of the Com't of Contencioso Administrativo authorizing and directing the Execution of a Deed to the Northern Railway Company, dated January 26th, 1906 197 Protest of McConnell to Same 200 Deed of the Lands covered by the Astua Denoimcements to the Northern Railway Company, dated 14th March, 1906 . . 202 Legal Procedure through which the Northern Railway Com- pany obtained Possession of the Lands in Costa Rica in- cluded in the Astua Denouncements on which McConnell's Plantations lie 211 Decision of the Supreme Court authorizing the Same .... 223 Chapter VIII. — McConnell's Agitation in Panama in the Fall of 1906: McConnell's Memorial addi'essed to the National Assembly of Panama on the Subject of the Jurisdiction of the Sixola Lands 226 Open I;etter on the Same Subject 244 Reply to McConnell's Memorial by R. J. Alfaro (representing the Government) 248 Report of a Committee of the National Assembly in Favor of McConnell .258 Final .Action of the National Assembly of Panama rejecting McConnell's Memorial 263 Official Correspondence showing the Location of the Status Quo Line of Jurisdiction between Costa Rica and Colombia . 264 Ijetter of Julio Rengifo dated February 22nd, 1894, promising that Concessions of United States Citizens in the Disputed Territory would be respected bj^ Colombia 267 Chapter IX. — Explanation of Laws of Colombia and Panama BELATiNf? TO THE Cultivation of Unoccupied Public Lands: Extracts of the Laws cited by MoConnell 273 Opinion of Eusebio A. Morales on the Same 274 Decree No. 92 of 1881 suspending the General Laud Laws of Colombia from Operation in the State of Panama .... 276 Resolutions of Colombia showing Decree No. 92 of 1881 still in Force 277 Decree No. 4 of 1903 showhig the Laws in Force in the Repubhc of Panama 285 Executive Resolution of Panama dated July Uth, 1906, showing Decree No. 92 of 1881 in Force until Passage of Law No. 61 of 1904 285 Law 61 of 1904 suspending all Proceedings for the Acquisition of Public Lands in Panama 288 Law 57 of 1887 showing Codes in Force in Colombia .... 289 Law 61 of 1874 comprising Statutes for Denouncem.ent of Unoccupied Lands in Colombia 290 Law 48 of 1882 supplementing Same 293 Decree No. 832 of 1884 relating to Law 61 of 1874 and Law 48 of 1882 296 Circular No. 94, dated October 15th, 1884, relating to above Laws 303 Various Resolutions showing Operation of the above Land Laws in Colombia 309 Forms for Procedure under above Land Laws of Colombia . 312 Same , 314 Chapter X. — The Boundary Controversy: Letter of Professor Edward Seler on the Boundary Dispute between Costa Rica and Colombia 323 MAP showing Various Historical Boundary Lines between Costa Rica and Colombia End of Volume INTRODUCTORY EXPLANATION {The references at the bottom of the pages are to this publication). FOHMATION OF CaMORS-McCoNNELL COMPANY HERBERT LEE McCONNELL, of Mobile, Alabama, had for a num- Firm of ber of years been engaged in growing, importing and selling bananas. M^c^nneu On the 22nd of July, 1899, he combined his business with others, and & Company, became a partner in the firm of Camors, McConnell & Company. His partners in the firm were Kroesman, Braden & Company, John B. Cam- ors, Victor Camors, and possibly others. This firm engaged actively in the business of growing bananas and tropical fruits in Bocas del Toro, then under the jurisdiction of Colombia, now of Panama, and in selling the products in Mobile, New Orleans, and other places in the United States, and buUt up a large and thriving business mth good credit, a good name, and a valuable good-wiU.' On the 8th of December, 1899, the firm of Camors, McConneU & Com- Agreement to pany agreed to sell its business, good-will and property to Camors-Mc- M™onn"i°"' ConneU Company, a corporation to be organized under the laws of New Company, and Jersey, for the consideration of $40,125 par value in stock, and in the compete, same contract A. W. Preston agreed to buy from the partnership one- half of the same stock or $20,125 par value, for $30,000. The partner- ship, therefore, were to receive $20,000 in stock worth $30,000, and $30,- 000 in cash for their business, good-will and property, making a total con- sideration of $60,000 in value.^ As the tangible assets of the partnership were valued at $30,000, the consideration to be paid for the good-will was $30,000.' In order to render effective the transfer of the good-will, H. L. Mc- Connell and the other partners of Camors, McConnell & Company cove- nanted and agreed in the same contract that they would "not, either in- dividually or by or through a corporation jointly or severally, directly or indirectly, engage in the growing or importing or selling of tropical fruits" in competition with Camors-McConnell Company.* The Camors-McCormell Company was formed on the 12th of January, 1900, all the property, effects, good-will, and business of the partner- ship of Camors, McConnell & Company were transferred to it, the consid- eration was duly paid, and McConnell received his proportion thereof in stock and cash. According to the terms of the contract, McConnell 'Deposition of J. B. Camors, page 45; ^ page i. 3 pagg 48. « Page 3, par. 5th. Receipts of McConnell from Camors McConnell Company, was elected president and general manager of the Camors-McConnell Company and served m that capacity fron. the formation of the cTm pany imtil January 21st, 1904. From the organization of the company until February 18, 1904 shortiv received $12,950 for salary and $77,666.25 for dividends aggregating $90 616, all withm a penod of four years. This was certainly a very hS" some return on the amount of capital invested by McComieU^n the Tuie^t tt.L .7:f 'y- ''' ''''' *^- -d^- accession of wealth by one who had theretofore been in very moderate circumstancerand engaged m small affairs, turned his head. ^cumstances, and As president and general manager of the Camors-McComieU Com pany, he had complete control and direction of aU its busTnerboth" Bocas del Toro where the plantations of the company were sTtuated and where . obtamed its supplies of tropical fruits, and In the iSd States where the same were sold. ^'^u^eu ocates He begins planting on the Sixola River and acquires the Romero Concession. Sixola River the jurisdic- tional boundary. Impossibility of obtaining title to Sixola Lands. McConnell 's Secret Plans Early in 1903 McConnell began secretly to plan to engage in the business of planting and dealing in bananas on his own account. In AprH 190^3 began planting tracts of land on both banks of the Sixola^^ ' He obtained from one Ricardo Roman Romero, a Colombian subject a con cession ^nore f.illy explained hereafter), pm-porting to gi e le conces" sionaire the right to build a railroad from the right (or TouthX bank IcL^dtnT^^ Caribbean%ei.« TZ^^ was dated April 2, 1903, and on May 1st McConnell obtained an assign dot; T"^ ?;' '" '' °"^ ^"^^^^^ d°"-« t« Romero five huXd Mn n r'/?'' "'^° ^^"^ ^°"^^ ^^^«^^«t, and having kgreed to pav Mot five hundred dollars more if the port mentioned in the on Lbn sb^uld prove a success. It is safe to say that he has not paid ^ Suer The Sixola River divides the jm-isdictions of Costa Rica and Panama S W of' T^ ^' ''^ *™^ ^°"^^^^^'- -^ ^- expTirriate ' riiis hne of division has existed for at least one hundred years and the territory on the left or north banl. of the Sixola has alwarSen unJer tha L !nL ; ^:^'^^^''' ^'^^^d ^P"I 23, 1903.= Furthermore, he knew As tn thM . r. *''^ '^'^ "^'^^ '' '^'' ^^^d^ °^ -either side of he rive^ As to the lands on the south side of the Sixola, the general laws of ColombTa relating to the denouncement of unoccupied public lands were not in force in the Department of Panama. This was brought to McConneU's atten- tion by his attorney, R. K. Warren, in a letter dated July 8, 1903, in which the latter, after consulting McConneU's counsel, said, "It seems that under the present law all Panama province lands are open and title to same can- not be secured except by special act or coniirmatiou by special dispensa- tion from Bogota."^ As to those on the north side, McConnell himself stated that he understood that Costa Rica retained possession as far as the noi'th bank of the Sixola, and that titles to lands along navigable streams and the ocean front remained in the government. (Letter to F. J. Alvarado & Co., Port Limon, April 23, 1903,' letter to T. D. Nettles, same date.) In fact, McConnell actually opposed the acquisition of these very lands in Costa Rica by another person, on the ground that the title to the navigable mile along the river remained in the government of Costa Rica.'" Besides this, the soldiers of Costa Rica actually stopped McConneU's First operations when he first went on the land in that country, and it was only of CMta Rioa. after he had made some "temporary arrangements" with the commanding officer that he was permitted to proceed. This permission, however, as McConnell expressly admits, was contrary to the commanding officer's orders, and the work was liable to be stopped again at any time. (Letter McConneU ^to Nettles, April 23, 1903.)^ It apparently was at least in- terrupted again soon, for McConneU wrote to Sefior Valdes on the 28th of July, 1903, that the Costa-Rican government had refused to permit a commissary on its side of the river, and had objected to McConneU's landing laborers at Gadocan." McConnell used his' position in the Camors-McConnell Company and McConneU's the organization, employees, money and property of that company in clmors- many ways in supporting and advancing his new enterprise. The local McConneu manager of the Camors-McConnell Company at Bocas, Robert H. War- Ms'^rivate™ ren, who was vmder the direction and control of McConnell as president, enterprise, became McConneU's attorney in fact and representative at Bocas. Mr. Warren used the funds of the Camors-McConnell Company to a very considerable extent in pa5'ing the expenses of McConneU's planting and otlier operations, but the funds were subsequently returned to the company. Mr. Warren devoted a large amount of time daily to McConneU's private interests. He visited the Sixola plantations several times. He sold and leased launches and fighters belonging to Camors-Mc- Connell Company to McConneU, for use in connection with the Sixola plantations. Even the suckers for plantiag bananas at Sixola were ob- tained from Camors-McConneU Company's plantations.*^ « Letter, Warren to McConnell, July 8th, 1903, page J. 'Letter, F. J. Alvarado & Co., April 23d, 1903, page C. ■» Page 192. " Letter to Senor Valdes, July 28th, 1903, page L. " Testimony of Warren and Herbert in the injunction suit and letters of R. H. Warren. McConnell was able to carry on this work without objection in the first instance, because he created or permitted the impression among the employees of the company at Bocas that the new work was for account of the Camors-McConnell Company. Later, when this appeared to be untrue, it created dissension among the employees at Bocas, and caused the resignation of one of the principal ones. He was not interfered with by the other officers of his company because his actions were kept secret from them." [It is true, however, that Mr. Minor C. Keith, vice-president of the United Fruit Company, became aware of his acts, and repeatedly endeavored to persuade McConnell either to desist or to declare that the new enterprise was to be for account of Camors-McComiell Company. Mr. Keith on several occasions reminded McConnell of his agreement, and called upon him to respect it. Mr. Keith made McConnell "most reasonable propo- sitions to induce me [McConnell] to withdraw from my intentions to plant Sixola, but I declined to entertain them until after I had ascertained defi- nitely whether or not Gadocan could be made a satisfactory port."]" McConnell boldly proceeded. In May and June, 1903, he caused five witnesses to appear before a notary in Bocas and make affida- vits, shomng that he had planted laud along the Sixola River. The exact description of the lands claimed is as follows: "lands that lie on both sides of the river Sixola in the jurisdiction from three miles up from the mouth of said river up to five miles of its course and an equal distance to the depth of the forest on each side of the river, thereby forming on both sides a perfect square.'"* These affidavits, defective and of no possible value, since the laws on which they were supposed to be based were not in force in Panama, constitute the only basis of title to any of the lands or cultivations now claimed by McConnell or the American Banana Com- pany. The cultivations actually made by McComieU extended over twenty- six miles up the said river, and were onty from 200 to 1,000 meters in width.^' The Romero concession required the concessionaire to file a plan of the proposed raihoad with the government of the Department of Panama. McConnell did so, and thereupon on the 9th of September, 1903, the gov- ernor of Panama stated that the concession had been given under a mistake of facts, and ordered that it be suspended. The concession authorized a raih'oad to run from the right bank of the Sixola River to Gadocan. From the plans filed, it appeared, however, that Gadocan lay to the north of the " Letter, McConnell to Warren, June 10th, 1903, page I. " Pages 14 to 22. " Page 33. Sixola River, and that the proposed raiboad was to run from the left bank of the Sixola to Gadocan. As the Sixola River formed the accepted boun- dary between the jurisdictions of Colombia on the south and of Costa Rica on the north, pending the determination of the permanent boundary be- tween the two nations, the governor of Panama declared that he had had no intention of granting rights in territory that was under the jurisdiction of Costa Rica, and therefore suspended the concession.'" In the mean time the same concession had come before the general gov- Declaration of ernment of Colombia at Bogota for approval. The said government passed of^^e'R^CTo upon the matter, and declared that the governor of a department had not concession by the power to grant such a priAdlege, since the power to do so was vested ° °™ "*" solely in the departmental legislatm-e under the constitution and laws of Colombia. Therefore, the general government of Colombia declared the concession to be A'oid." McCoimell still continued his planting and began to clear a way for his Further railroad. Upon learning of this, the Costa-Rican government again sent ™f*^g^4^R°ca officials in September, 1903, to investigate McConnell's actions •within the jurisdiction of Costa Rica, and they required him to desist from further trespassing in Costa-Rican territory.'^ On September 24, 1903, McConnell wi'ote to Secretary Hay. He stated McConneii that he had bought a railroad concession from a Colombian citizen, that secretary Hay. the railway would run through territory awarded to Colombia by Presi- dent Loubet, but over which Costa Rica still retained jurisdiction until the boundary line should be fixed by a joint commission, and that the government of Panama was unaware of the existence of such an under- standing between the Colombian government and Costa Rica when the concession ia question was issued and when transferred to McConnell.'" (Note. — It may be obsei^ved, in passing, that McConneU neglected to advise Secretary Hay that the Colombian government had expressly declared his railroad concession to be invalid, and also that his state- ment that the government of Panama was unaware of the existence of the boundary understanding is directlj' contrary to the fact shown by Governor Duran himself. Governor Duran suspended the operation of the railroad concession on the sole ground that the line of the railway lay in territory that was under the jurisdiction of Costa Rica, and expressly stated that, if the true location of the railway had been known on the date of the contract, the government would not haA^e entered into the same. McConneU also said that Governor Duran had declined to approve the plans and profile of the proposed railroad, unless subject to Costa "Page 11. 17 Page 10. ■» "McConneU to Secretary Hay, September 24th, 1903, page 55. Rica's temporaiy jurisdiction. This is certainly a veiy inadequate man- ner of stating what Governor Duran had actually done; to wit, suspended and really annulled the entire contract.)'" McConnell did not in this letter claim the right or title to any land, but stated that the fruit which he had planted in the river land would be lost unless the port of Gadocan were improved and the proposed railroad built.^" It is to be obsei-ved and remembered that even the Romero Concession contains no authority whatever to open, use or improve the port of Ga- docan, or to erect, maintain or use any of the constructions necessary, and M'hich McConnell contemplated, for that purpose. In other words, the utmost claims of McConnell, — to wit, the right to build a raUroad under the railroad concession, and rights in unoccupied land arising from actual cultivation thereon, — did not include the further right which, he states, was essential to his whole enterprise. The importance and neces- sity of the harbor improvement is clearly set forth and dwelt upon in his letter." The position of the Costa-Rican government in claiming jurisdiction and in preventing McConnell from surveying, planting, erecting buildings, building the railroad, and improving or using the port without that gov- ernment's consent, is also clearly stated. Certainly, McConnell never had anj^ misconception as to this government's attitude from the very beginning, and it never did anything more than he had always antici- pated and expected. Upon receipt of this letter the State Department communicated with its representatives, both at Bogota and San Jose." Minister Merry at the latter place reported that the territory between the Sixola and Gadocan was disputed, and that Costa Rica did not then claim jurisdiction and had not demanded that McConnell's work be stopped under threat of confiscation or otherwise.^^ This statement of facts thus reported through Minister Merry to the State Department was not strictly accurate, since Costa Rica had stopped McConnell's work on the north side of Sixola, and had claimed and exercised jurisdiction there. However, it is clear that after these communications McCoimell was not further interrupted for some time. It is apparent that this quiescence on the part of Costa Rica was really out of deference to the wishes of the United States, coupled possibly with a desire to escape responsibility, but was not in any sense a renunciation of the rights and duties of sovereign jurisdiction. He continued his operations uninterruptedly for eight months. He claims to have planted 5,000 acres of land with about 500,000 banana 2" Page 56. 21 gee also page six . 22 page 58. ^^pageSS. plants, and to have spent in such work upwards of $88,000. He claims to have cut and cleared a waj- for a railroad of about twenty-five rmles in length.^ He actually planted 1,469 hectares, about 3,630 acres, and un- derbrushed 161 hectares, about 398 acres additional, on the north side of the river.^" FORSIATION OF THE AmEHICAX B.\Js"AXA CoMP.ANT. On June 18, 1904, McConneh caused to be formed a corporation imder the laws of Alabama, called the American Banana Company, mth a cap- ital of $750,000, for the purpose of engaging generally ia the banana business.® He had intended to form such a company from the very beginning, Agreement but refrained from doing so temporarily, "on account of Costa Rica's Y^*^»*« ° ^ ^ ^ Amencan jurisdiction and the consequent difiRculty of importing railroad iron. Banana Co. machinery for harbor improvements, etc." -' On the 24th of June, 1904, he executed an assignment to the said corpora- tion purporting to transfer to it the Romero concession (which was void), all his titles in the lands claimed by him on the Sixola River (but he had no titles whatever to the said lands), and the cultivations for $250,000 in stock, reser^ong, ho'never, the cost of cultivations." Under the reservation he caused the corporation to pay back to him the entire cost and expense that he had incm'red, to vAt $65,672.80. He obtained cash subscriptions from others for a very large amotmt, about $300,000. He made no actual Transfer to transfer to the corporation in Panama untU the 31st of July, 1905, when, *•»« American imder deed No. 184 before Notary Adolfo Cervera, his attorney executed an instrument pm'portulg to transfer to the American Banana Company for the sum of $25,000 the following; one banana plantation of 3,000 manzanas * of land lying on both sides of the Sixola River, from the fourth nnle for about twenty-six miles with a depth varjdng from two hundred meters to one thousand meters, several wooden b^iildings with zinc roofs, some materials for construction, many thatched huts (in all about fortj- biuld- ings), ten head of cattle, ten pigs, and several fowls, two gasolene launches, "Sixola" and "Messenger," three wooden hghters, some pro^osions, stores, and fm-niture in the said buildings, and some tools, machinery and agTi- ciiltm-al implements, five iron cars, and all rights that he had acquhed under the laws of Panama to the adjacent lands, and all rights in Adrtue of the Romero concession.^* * A manzana is about 2J acres. -* Pages 76, 79. --^ See copy of map- of W. L. Collins, McConneU's engineer, opposite frontispiece. ^ Charter on page 26. * Letter, McConnell to Otto F. Bolder, September 19tli, 1903, page N. 2' Page 30. 28 Page 32. The Voyage of the "Orn." On the 9th of July, 1904, McConnell shipped by the steamer "Orn" from Baltimore 916 tons of steel rails and 26,000 steel ties with appurte- nances. Ou the 5tli of August, 1904, he also shipped by the schooner "Oscar G " from Mobile about 50,000 feet of lumber, five flat cars, and some general merchandise and provisions and tools of the value of about $2,500.^* The steamship "Orn" cleared from Baltimore to Bocas del Toro. Upon arriving there, she cleared for Gadocan on July 22, 1904, and probably arrived there the next day.^" 'When the "Orn" arrived at Gadocan, there were present there some customs officials of Costa Rica from the established port of Limon who forbade the ship to unload because Gadocan was not a legal port, and such act would be in violation of the customs laws of Costa Rica. The officials were, however, prevailed upon to wait until the government of Costa Rica in San Jose could be communicated with, and in the meantime not to prevent the unloading of the cargo. Communication was held with San Jose on the subject, and the government forbade the entrance of the cargo.'' During the interval, however, about two-thirds of the goods in tonnage, but three-quarters m value, about $60,000 worth, had been un- loaded. WhUe unloading, one of the fighters was sunk, and McConnell claims that the customs officials went so far in the performance of their duties as to forbid his saving the material sunk with it. The officials of Costa Rica took possession of the part of the cargo which had been landed.'* On the 12th of August the "Orn" proceeded to Bocas del Drago, and landed there the remainder of her cargo. The customs officials of Panama imposed the usual import duties on the same, to the amount of $10,149.90, Colombian currency. In default of payment the goods were seized, and aftei-wards sold by the same officials.'' The schooner "Oscar G" landed her cargo at Bocas del Drago, which suffered the same fate.'* 2" Pages 80, 81. =" Page 66. ^1 At this very moment neKotiations to settle the national boundary were being carried ou between the official representatives of Costa Rica and Panama at the city of Panama, and the questions raised by the arrival of the "Orn" were seriously involved in that controversy. (See the "Memoria" of the Sec- retary of State and Foreign Affairs to the National Assembly of Panama, 1906, p. Iv.) Up to that time McConnells' acts in planting some unoccupied lands and erecting unimportant huts had not introduced any international complications. His acts of trespass raised simple questions of private right which Costa Rica, out of deference to the wishes of the United States, had refrained from pressing, but without in any way resigning or qualifying its right of jurisdiction. The arrival of the "Orn," however, propos- ing to land under claim of authority from Panama and to import merchandise for the purpose of constructing a railroad under a Colombian concession, all contrary to Costa Rica's laws, created a very different situation. It was one which Costa Rica could not ignore, since the very omission to act would have constituted a renunciation of jurisdiction. Costa Rica had always firmly maintained that theLoubet Award was void, and had never accepted it in any way. Its representative was insisting upon this same position in the pending negotiations, and it is readily seen that the renimciation of jurisdiction over territory which could only become subject to Panama's jm-isdietion through the operation of the l.onbet Award, would seriously have compromised Costa Rica's claims. Therefore, that country was compelled to forbid the "Om" to laud, without any regard to the private rights involved or the unofficial wishes of the United States. The reasons for this conclusion can readily be understood after a study of the history of the boundary controversy explained on page .xx. The propriety of Costa Rica's action was shown by the action of Panama in disclaiming jurisdiction over the land north of the Sixola. (Resolu- tion No. 28, August 2nd, 1904. page 95. i'tlrn. See also page ISS.) ■sPageSO. 33 Pages 33, 235. " page 81. Second Appeal to the State Department McConnell thereupon again appealed to the State Department, and costa Rioa's further official correspondence ensued. This brought a clear statement q^^I^" of Costa Rica's position and of McConneU's acts in a letter from Hon. deaned. Jose. Astua Aguilar, Secretary of Foreign Relations, dated September 21 , 1904. The Minister stated that the land north of the Sixola was under Costa-Rican jurisdiction, and that no one could obtain any right, title, or interest in the said lands except through title derived from Costa Rica; that McConnell, without anj^ right, had taken possession of a large area of land, cut down trees, planted cidtivations, constructed a tramwaj', and violated the customs laws. Costa Rica had sent, not soldiers as Mc- Connell had misrepresented to the State Department, but customs officials from the nearest established port, to enforce the customs laws and to put an end to the acts of usurpation. ^^ In the meantime McConnell visited Panama, and after a month of jicCoimeu patient effort failed completely in obtaining either of the tM-o objects "ii'a°^°'a- sought b}^ him: &'st, the recognition of the Romero concession; second, a communication of remonstrance from the govermnent of Panama to Costa Rica.^** On the first point the government of Panama absolutely declined to recognize the Romero Concession as valid. (Resolution, 14th of September, 1904.)" On the second, the government declined to de- mand a cessation of interference on the part of Costa Rica in McCoimeU's works, giving as one reason the fact that the question of boundaries was even then being discussed between the representatives of the two nations. (Resolution of Foreign Relations, dated September 22, 1904.)^* Incidentally, McConnell did all in his power to prevent the representa- tives of Costa Rica and Panama, then in Panama, from agreeing to a settlement of the boundary question.^^ Minister Merry advised McConnell to apply to Costa Rica for peraiission McConneU ii to continue his work. For this purpose he and Adolf Dolder, after leaving ®*° ■'°^^' Panama, visited San Jose and were pleasantly received by the government officials, to whom he was presented by Minister Merrj', even though these same officials knew that McConneU had just been urgmg action at Panama prejudicial to Costa Rica. He was, however, unsuccessful. (Despatches of Minister Merry, dated October 9th and 15th, 1904.)" » Page 63. ^- Page 67. ^ Page 12. 3s page 14. 39 pgge 956. " Pages 65. 67. The Circuit Court of the United States enjoins McConnell FROM doing any BanANA BUSINESS. On the 30th of November, 1904.. Camors-McConnell Company brought an action against McConnel] m the Circuit Court of the United States for the Southern District of Alabama. The object of the suit was to compel McConnell to respect his agreement which he made when the said corporation was formed. After a prolonged and bitter contest the court granted an injunction forbidding McConnell to be an officer or man- ager of the American Banana Compaii)^ or to engage in the business of growing, buying or selling bananas. In rendering its decision, the court significantly said: — " 'If there is one thing more than another which is essential to the trade and commerce of this country, it is the inviolability of contracts deliberately entered into; and to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligation which he has undertaken is prima facie, at all events, contrary to the interest of any and every country.' "" The Court thereupon (31st August, 1905) granted a preliminary injunc- tion against McCoimell, which was affirmed on appeal, by the United States Circuit Court of Appeals for the Fifth District (30th October, 1905)." The case was then tried upon its merits, testimony was taken, and the injunction made permanent on the 9th day of June, 1906. The Court decreed that "Herbert L. McConnell he and he is hereby perpetually restrained and enjoined from being an officer of the American Banana Company, and from ynanaging, directing, or controlling its affairs, and otherwise from directly or indirectly, either individually or by or through a corporation, engaging in the growing of tropical fruit in competition with the com- plainant" (Camors-McConnell Company), "or in the importing or sell- ing of tropical fruit anywhere in the United States in competition with the complainant," etc., etc.*^ McConnell's First Memorial to the State Department.^'' On the 21st day of December, 1904, McConnell filed a petition with the State Department at Washington. In it he claimed that he had obtained full title in the lands planted by him under Law 61 of 1874 and Law " Copy of opinion on p. 36. 140 Federal Reporter, 412. <2 Page 43. 140 Federal Reporter, 9S7. « See pages 52, 53, 54. « Page 71. 48 of 1882 of the Republic of Colombia, and stated that these laws had been adopted by the Republic of Panama. This viay have been one of the errors of his counsel, since McConnell must have known, from Ms long experience in Bocas del Toro and vicinity, that which was and is currently known there by all, to Avit, that no titles of anj' kind could be obtained to any pubhc or unoccupied lands there. All the lands in the state (after- wards the department) of Panama had been withdrawn from denounce- ment for many years, on account of the land grant ceded to the French canal companies, and for other pubhc reasons arising from the proposed construction of an interoceanic canal, and the very law cited by McConnell (Law 61 of 1874 to which Law 48 of 1882 is merely supplementary), was in 1881 expressly suspended from haAdng any operation in Panama.^" McConnell discussed at some length the boundary controversy between Colombia and Costa Rica, and expressed the wholly erroneous view of the real facts and of the true relations between the two nations that he has steadfastly, and to Ms great cost, maintained to the present time. This boundary controversy will be explained further on.^" As to the railway, he claimed the legal right to build a private rail- McConneu 1 ^ ' ^ -\ ' l^ ± • c i. ^ i abaBdons the road over his land without any concession irom any govermnent, and ^oraero abandoned any further claim under the Romero concession.^' In concession, this connection it is important to observe that the lands planted by him, and which alone he could claim on any pretext whatever, were distant at least three miles from the port of Gadocan, and by limiting his claim to build the railroad as stated in his memorial, he abandoned the right to connect it with the port of Gadocan. As a matter of fact, the only work he actually did upon the railroad was at Gadocan, ex- tending from the coast inland and it did not lie upon or extend to any portion of the lands described in the affidavits of possession as mentioned above, or to any of those planted by him.^^ McConnell stated, "It was not until long after I had entered upon McConneii's these lands, and had expended large sums of monej^ in planting, ^c^'^at^g"'^""* that I had any intimation whatsoever that either government con- tended that there was any dispute over the boundary line between the two republics which would in any way affect the land that I was occupying." Previously in Ms memorial McConnell had slated that it was in April, 1903, that he had first entered upon the lands."*^ In making the statement quoted, McConnell evidently forgot what he had written in the letter from Bocas to T. D. Nettles dated the 23rd of April, 1903, from which the following is an extract:— ^ ChapterQ, page 273, especially Decree No. 92 of 1881, page 276 ; this decree is still in force, page 285. ^8 Page XX. ■'' Page 75. ■** See map frontispiece. ^" Pages 78, 74. ThoNetties "I have iiot j'et arranged to do any planting, but have spent much a'hi "igle'* *^"^^ ^"^*^^ '"^' arrival here in exploring different sections of this coun- try and have finally determined that Sixola River is the proper place to plant, provided control can be secured and it is found that a port close by can be made a safe harbor. Several parties besides my- self are making an effort to secure the land and port, and it remains to be seen who will he successful. It was until some two and a half years ago disputed territory, when the President of France as arbi- trator decided in favor of Colombia and against Costa Rica. On account of the revolution in this country a joint commission has never been appointed to survey and fix the exact line. The terri- tory is therefore still under Costa-Rican jurisdiction, and that coun- try sent soldiers a few days since and stopped my work of securing the land, according to Colombian laws. Temporary arrangements were, however, made with the commanding officer for a continuance of the work, but, as that was contraiy to his orders, the work is likely to be stopped again at any time. "In addition to the com.plications named the C. R. government some years ago granted this land to an American in consideration of military services rendered. I expect to leave for Panama on this business Saturday, and may be there a week or two, but expect to return here before going to New York."^" McConnell also failed to remember his statements in his letter to Hon. John Hay, dated 24th September, 1903, in which he reiterated sub- stantially the foregoing statements, and also said : — "Costa Rica has on several occasions interrupted temporarily my work of surveying and planting, and refused to allow a commissary built on the north bank of the Sixola River or within the limits of its temporary jurisdiction, and I am forced to ship all supplies over the river bar, which is rough and dangerous both to life and property. Any shipments handled through Gadocan would be subject to confiscation, hence under such circumstances it is impossible to do anything towards the improvement of the port and the building of the railroad. The Colombian Government is, of course, responsible to me under the con- cession for any losses inflicted by the Costa-Rican Government, but I of com'se desire to work harmoniously with that Government. Fur- thermore, the payment for goods confiscated would not secure the end desired; namely, that of building the road and opening the port for vessels." ^^ It is clear that McCormell planted on the north side of Sixola River with the fullest knowledge of the jurisdiction of Costa Rica there. It is to be noticed that McConnell failed to advise the State Department, 5" Full copy of this letter on page A. "Full copy of this letter on page 55. either that his concession had been declared void by the central govern- ment of Colombia or that it had been suspended by Governor Duran. For the acts of Costa Rica in interfering with his work, he demanded Damages $2,210,000 damages, although he claimed to have spent in the enterprise c^teRi^!^'' only $198,200. He asked the United States Govermnent to demand from both Costa Rica and Panama the release of the property seized, and that the memorialists, McConneU and the American Banana Company, should be permitted "to pursue the work of planting, cultivating, and developing the territoiy in question, including the completion of said tram or railway, the raising of the sunken materials, and the landing of those delayed, and of such others as may be necessary and appropriate at Gadocan, and in all respects continue the work of development and improvement upon which they have entered, free of and from any mo- lestation whatsoever by said govermiients or either of them."^^ It is to be observed that in characteristic fashion he wanted the United States govermnent to demand for him from the two nations more and greater rights than he had ever claimed. In his memorial he also stated that on the 18th of June, 1904, the Ameri- can Banana Company was organized, and through it a large number of other American citizens became interested with him in the enterprise. As already stated, it was on the 24th day of June, 1904, that McConneU executed an assignment of his lands, concessions, and plantations to the said corporation. His statement in the memorial is to be remembered when considering the representations which McConneU presented to the government of Costa Rica in which he claimed to be the sole planter and possessor of the said plantations. The purpose of his making and continuing in this false statement in Costa Rica will be understood when we come to consider the litigation that has taken place there.'^'' As a result of McConnell's memorial, Minister Hay requested Minister Merrj'- at San Jose to arrange a modus vivendi which would have the effect of saving McConneU and the American Banana Company from unnecessary and voidable losses."^ As a result of this request, extended communications took place between Negotiations McConneU and the government of Costa Rica in which all the incidents of ^1^^ ^^^ McConnell's entrance into Costa Rica and the actions of the Costa-Rican modus officials relative thereto were fuUy explained.^* Passing comment may also be made upon McConneU 's communication to the Secretaiy of State Department of Foreign Affairs, dated April 3rd, 1905, in which he says: "I should also state that in those uncultivated regions I saw no indications '2 Page 83. «» Page xviU. '^ page 85. « Pages 85 to 131. whatever that the Government of Costa Rica was not in accord with the interpretation of the decision as understood in the neighboring Republic as well as other countries. Furthermore, the Goverimient of Costa Rica did not advise me as to its attitude respecting those lands until my agri- cultural works had attained a great development."^" This also is hardly consistent with his oft-forgotten letter to Mr. Nettles, dated April 23, 1903, in which he carefully explained that the land was under the jurisdiction of Costa Rica, that that government had actually exercised its jurisdiction by stopping such work, and that the same thing was liable to occur again. Although the foregoing inconsistency was not known in Costa Rica, the answer of Minister Jose Astua Aguilar to the same letter, under date of April 12th, 1904, is especially worthy of consideration. In it Minister Astua carefully and satisfactorily explains aU of Costa Rica's acts and position. This is conclusive, and no further answer of any kind is necessary.^" To the same effect is the statement of the same Minister Aguilar in his letter to Minister Merry, dated 3rd March, 1906, in which he states: "That the territory of Gandoca and the Sixaola river from the very bank of this river and of the Yurquin have been and are now subject to the sovereignty of Costa Rica, that Mr. H. L. McConnell has attempted without title, in virtue of his own will alone, by means of an occupancy which our laws and universal right qualify as the act of an usurper, to appropriate as lord and master a great area of that region; that the same gentle- man imported merchandise clandestinely by the unopened port of Gan- doca, for which he chartered ships wliich he caused to arrive at that point; that my government, in the exercise of the national sovereignty and under the necessity of inculcating respect for its laws, acted through the fiscal authorities to proceed against that unlawful action and smuggling, and notified Mr. McConnell that he could not possess or make use of the lands mentioned, since he had not acquired them in accordance with our laws."" The course of the negotiations is fully set out in the documents printed later, from which three main points are firmly established : — 1st. That the State Department and the United States representatives, especially Minister Merry, exerted unusual efforts to procure benefits for McConnell. 2nd. That the government of Costa Rica most sincerely endeavored to meet the cashes of our government, notwithstanding the many reasons influencing them to be offended with McConnell's acts, and 55 Page 91. 58 Page 93. w Page 154, also pages 64, 160, 173. obtain modus Vivendi. 3rd. That the negotiations were unsuccessful solely because of the ex- cessive demands and unreasonable attitude of McConnell himself. The truth of the fu-st statement is shown by the most casual examina- tion of the communications that passed between the State Department and Minister Merry. In fact, the latter became so zealous in behalf of McConnell's interest that Mr. Loords, as acting secretary, found it neces- sary to write Minister Merry that he should "avoid giving to the Costa- Rican government the erroneous impression that the Department is in any way committed in support of Mr. McConnell's claims, its attitude in fact being simply favorable to the preservation by means of a modus Vivendi of whatever property he may have." (Letter dated Washington, May 12th, 1905.)^' Proof of the same is further shown in Mr. Merry's letter of June 11, 1905, in which he says, "It seems proper for the writer to state that no effort has been spared to obtain for Mr. McConnell a modus vivendi."^" In substantiating the second and third points, reference may es- FaUureto pecially be made to Mr. Merry's letter dated March 7, 1906, in which he advises Mr. Root that "Mr. McConnell was about reaching a modus vivendi which I had been instructed by the Honorable Secretary of State, Mr. Hay, to aid him in obtaining, when, over night, he decided to insist on the right to place an additional area under cultivation, thus changing the modus vivendi for a modus crescendi, and therein I cannot justly find fault with the Minister for declining. It was not, in fact, a claim in accordance with my instructions or with the intent of Mr. Hay." And also to the statement at the close of the letter of Mr. Aguilar to Minister Merry, dated 3rd March, 1906."'' McConnell's Second Memorial to the State Department."^ Failing in his attempts to obtain & modus vivendi, McConnell filed a second memorial with the State Department on the 22nd of October, 1905. As a result, Secretary Root cabled to Minister Merry on the 27th January, 1906, in effect questioning the sovereignty of Costa Rica over the territory in dispute. In answer to wliich the above-mentioned letters of Minister Merry, dated 7th March, 1906, and of Minister Aguilar, dated 3rd March, 1906, were sent."" 58 Page 107. 59 Page 129. »» Pages 154, 161. " Page 132. Emphatic declarations by Secretary Root in favor of McConnell. Answers of Costa Rica and Panama denying Secretary Root's position. On the 19th of March, 1906, Secretary Root sent a further cable to the United States representative at San Jos6 and Panama, stating that an American citizen, meaning McConnell, and the American Banana Com- pany claimed title to a valid location under the laws of Colombia, and that it would be deemed a violation of the rights of the American posses- sors of such property to interfere with their possession and enjoyment ex- cept upon the judgment of a court."^ This was followed bj' a letter in which Secretary Root went as far as possible in maintaining the rights claimed by McConnell, and setting forth distinctly the principle that in Secretary Root's opinion the jurisdiction of Costa Rica in the said territory was temporary and precarious, and that the title to property rights were determinable according to the laws of Colombia and Panama, and in effect demanding that the property of McConnell and the American Banana Company should be protected and preserved without any destruction, until such time as the ultimate rights of the parties should be passed upon by a court of competent jurisdiction."' The governments of both Costa Rica and Panama answered this com- munication and denied the conclusions of Secretary Root as to the char- acter of Costa Rica's jurisdiction in unmistakable terms. Panama stated that it conceded to Costa Rica the right to exercise complete jurisdiction (see telegrams of Governor Magoon, dated April 27 and May 2, 1906).'" Costa Rica stated in the letter of Minister Luis Anderson, dated May 26, 1906, "Our right, therefore, to govern and dispose as sovereigns of the land that we are possessors of, as long as the boundary question is in abeyance, is, therefore, a point which is not doubted either by Colombia formerly or by Panama at the present moment. And the complete sov- ereignty of both countries over that which each of them is occupying now up to the time of the definitive demarcation comprises without limit — both governments have understood it thus — all the attributes making up sovereignty." °^ The.Astua Denouncements. In the mean time, as had been suggested in the above-mentioned cor- respondence, the title to a large area (5,850 hectares, 5,915 square meters, excluding 2 per cent, for roads), including all of the very lands on which McConnell's cultivations north of the Sixaola River lay, was claimed by other American citizens. They had acquired the rights under a denounce- ment made in conformity with the laws of Costa Rica by a citizen of Costa 62 Page 163. "^ Page 163. « Page 166. K Pages 170, 175. See also the officially inspired note of Senor Alfaro, page 248. Rica, on the 1st of March, 1900 (prior to the date of the Loubet award on the 11th September, 1900). A certificate showing tliis fact was issued by Secretary Carillo of the Court of Contencioso Administrativo, dated 4th February, 1905.™ Then followed extensive litigation in the courts of Costa Rica respecting Legal the validity of these denouncements. McConnell appeared in the courts r'^|°°|'^'^t^(, by his duly constituted attorney,""'^ and filed an objection to them, the His objection was passed upon and dismissed by the Supreme Court mTut^°^" of Justice of Costa Rica on the 15th of October, 1905."^ In this decision the claims and position of McConnell were fully con- sidered and decided, the court finding as follows: — "And whereas the objection raised by Mr. Herbert Lee McConnell lacks McConneii all foundations because the said gentleman is not a party entitled to appear ^^^efTated"* under any form whatsoever in the present denouncement, since he neither alleges any right of ownership to the tract involved nor even the right which he might possess as an earlier denouncer of the same land, limiting himseK to alleged rights of an improving possessor, and to making sundry allegations concerning the invaUdity of the denouncement and the non- denounceabiUty of the tracts comprised therein; "And whereas the fact that the opponent has made improvements on national property does not give him any rights to demand that his posses- sion be respected, as long as he has not shown that he had comphed with the formahties indicated in section 530 of the Fiscal Code." ^ On the 26th of January, 1906, the Court of Contencioso Administrativo rehearsed the denouncement proceedings, and ordered the Executive to execute a deed convejdng a title to the land covered by the denouncement to the Northern Railway Company, a corporation organized under the laws of New Jersey, and legally domiciled in Costa Rica. (It is to be noted that the said railway company is substantial, as it owns and operates aU of the railways in Costa Rica except a small detached portion on the Pacific side.)«' On the 22nd February, 1906, McConnell, through his same attorney. Deed granted Ricardo Jimenez, Esq., filed an objection to the last said judgment, but ^J^^g,^ notwithstanding this, on the 14th March, 1906, the government of Costa Railway Rica executed a deed granting to the Northern Railway Company all of the lands covered by the denouncement mentioned. This deed contains an accurate description of the land, and rehearses all of the legal steps leading up to its authorization and execution.'" On the 23rd of April, 1906, the Coxu-t of Contencioso Administrativo '^ Page 187. ^^ Copy of McCounell's power of attorney to Ricardo Jimenez, page 190. 6' Pages 190 to 121. «« Page 193. ^ Page 197. "Pages 200, 202. Withdrawal of McConnell. Possession granted to the Northern Railway Company. decreed that the possession of the lauds adjudicated to the Northeru Rail- way should be given to itJ' On the 26th of April, 1906, McConnell, through his attorney Ricardo Jimenez, protested against the last-mentioned decision, and petitioned the court that it order McConnell's improvements to be appraised by experts.'^ On the 16th of May, 1906, the Supreme Court revoked the decision of the lower court so far as it decreed material possession to the Northern Railway Company of the lands upon which McConnell claimed cultivations, for the reason that it was necessary first to settle the question of the im- provements and the right of retaining possession claimed by McConnell.'^ On the 27th of July, 1906, McConnell, through his same attorney, peti- tioned the Court of Contencioso Ad^jiinistrativo that the judge himself should visit McConnell's plantations to see their existence and extent, and that the "experts estimate most carefully the plantations, buildings, and other improvements." " Subsequently McConnell withchew from further participation in the proceedings, stating that he had already transferred his title to the land in dispute, and therefore had no interest in the litigation.'^ It will be remembered that he had assigned all his rights and interests in the Sixola lands to the American Banana Company on June 24th, 1904,^' which was long before his appearance in the litigation in Costa Rica. He took part in that litigation in his own name, claiming to have the rights of possession accruing from cultivation,'" and the greater part of the litiga- tion was relative to his alleged rights of possession as cultivator." When he failed to prevent the acquisition of the lands cultivated, by virtue of a superior title, he announced that he had transferred his interest, — a statement du'ectly contrary, when the date of the transfer is remem- bered, to the representations he had made as the only basis of being ad- mitted to the litigation. The American Banana Company never was domiciled in Costa Rica,'* as is necessary under the laws of that country before a foreign corporation can have any legal standing. On the 3rd of December, 1906, the Supreme Court took cognizance of McConnell's withdrawal, and then gi'anted the Northern Railway Com- pany the right to take possession of aU the land covered by the Astua denouncement, and on the 5th day of December, 1906, under order of the Com't of Contencioso Administrativo the governor of Limon sent officers with the representatives of the Northern Railway Company, and they formally took possession of all the lands on which McConnell's cultiva- tions stand on the north side of the Sixola River, in the name of the North- ern Railway Company." " Page 211. '2 Pages 212, 214. " Page 217. " Page 219. '= Page 221. '6 Page 214. "Pages 194, 197, 201, 219, 221. 's Page 157. " pageg 223 to 225. The Port of Gadocan. The cultivations of McConnell are inaccessible except by the Sixola river or through Gadocan, and thence overland for several miles. The river is not available to take out bananas because of a bar at its mouth which renders navigation impossible for large vessels, and so dangerous and uncertain as to be practically impossible even for the smallest boats. The only possible way open for McConnell was that which he chose, namely, to make a port at Gadocan and to build a railroad from there to the plan- tations. Gadocan is on the open sea, and, though favored by a freak which has left open a narrow passage through the bar, it is doubtful whether any permanent or safe port could be made there. Skilled engi- neers and others more familiar with the conditions and waters there have declared the plan of making a port at Godocan to be utterly imprac- ticable and imsafe. (All of the foregoing facts are clearly shown by the letters to and from McConnell.)*" Besides, it is elementar}' that the right to make a harbor, and to place constructions in the sea, requh-es the consent of the government having jurisdiction. McConnell and the American Banana Company never had and do not claim any such consent whatever. There is nothing about making a port or harbor in the Romero concession, and McComiell never received any other authority of any kind from either Panama or Colom- bia. He never received any authority at aU from Costa Rica, under whose jurisdiction Gadocan actually Ues." It is even more elementary that a 'port cannot be opened for exporting or importing, or for receiving vessels, without governmental authoiity, and proper provision for governmental machinery incident to a legal port of entry. But neither government ever suggested or assented that a port might be opened at Gadocan." Regarding a railroad, the only right McConnell ever claimed for himself or the American Banana Company was by virtue of the Romero concession, which was utterly void and of no effect. McConnell himself acknowledged the latter fact, and thereupon claimed that he proposed and had the right to build a private tramway on his own land." But his cultivations and all the land ever claimed bj' him lay at least several miles away from Gadocan, and he never had or claimed any right whatever to the land between. Be- sides, the only place where he made any actual preparations for building a railway was at Gadocan and on the land of others between that place and 8" Chapter 1. Also letter to Secretary Hay, September 24th, 1903, page 53. 6> Pages 64, 94, 154, 173. his plantations. That part was essential to his plans, for without it any railways within the lines of his cultivations would have been without con- nection with the sea and valueless. McConnell was not permitted to land railroad material at Gadocan, because that was not an open port, and it was contrary to the customs laws of Costa Rica, and therefore illegal to do so.*' It is clear that he could not have built a private tramway on the land of another \\'ithout the owner's permission, nor a public one without governmental authority. This was really the bottom cause of his trouble, and he surely can blame no one 'but himself for having planted bananas which were only available for commerce through Gadocan and a connecting railroad, without first having gained the opening of the port, and the right to make the necessary improvements thereof, as well as the right to build the railroad. An Account of the Boundary Controversy.* The controversy over the true boundary between Costa Rica and its next neighbor to the east and south (New Granada, the United States of Colom- bia, the Republic of Colombia, and finally the Repubhc of Panama) has played a conspicuous part in the history of those nations. A short ex- planation of the controversy will enable its present bearing on the affairs and transactions now being considered to be better understood. Origin prior to The Controversy had an early origin. It was officially recognized in 1576 when King Phihp II. of Spain wi'ote a communication on the subject to the Audiencia of Guatemala, to whose jurisdiction the two administra- tive districts of Costa Rica and Veragua were subject. The king directed the Audiencia to ascertain to which district the Rio de Guaymi, the Bahia del Almirante, and the Bocas del Drago belonged, stating in his letter that these three were the same and formed the true boundary between those districts. There were no sufficient maps in those days, and the king relied chiefly for his information on the letters and accounts of discoverers, who were more concerned with the gold supplies than with the accuracy of their geographical descriptions. The Rio de Guaymi was surely the same river that bears that name at the present day. It flows into the Chiriqui Lagoon, a part of the two broad sheets of water or bays which were then known as Bahia del Almirante. Between these bays and the ocean are a number of islands, and the waters or straits between these islands were generally known as the Bocas del Drago (the Mouths of the Dragon). A glance at the accompanying map mil show that, while the Guaymi River might have formed an acciu-ate boundary fine, the Bahia del Almirante * See the explanatory map at ttie end. 1576. and the Bocas del Drago, extending many miles in width, could not have done so. Then, too, the king was wrong, because the true boundary at that time was really the westerly limit of the Ducado de Veragua, which of all the ancient boundaries is the one most nearly capable of definite ascertainment. Even this line is somewhat indefinite because it is de- scribed as twenty-five leguas from the mouth of the river Belen to the western part of the bay of Ceravaro (Almirante), and beyond if necessary, to make up the full twenty-five leguas. The distance mentioned passes the western shore line of the principal portion of the former bay of Cera- varo which is now Chiriqui Lagoon, but does not reach the western shore line of the present bay of Almirante. Unfortunately, the Audiencia of Guatemala failed to solve this uncer- tainty, or, if it did so, its decision is lost. Consequently, the same uncer- tainty, with varying differences, has existed down to the present day. The former administrative district of Costa Rica has been ultimately succeeded by the republic of the same name, and the district of Veragua by the Republic of Panama. In a treaty executed between the Repubhc of Central America and the Guai-MoUna Repubhc of Colombia, 15th May, 1825 (Bogota), this uncertainty was ''^^fl/-'^^^^' recognized, and the powers interested agreed to respect their limits as they the status Quo. then were until such time as the true boundary should be settled. This was the origin of the status quo. But even this line of the status quo never was definitely fixed, either by the treaties or otherwise, and the limits of the temporary jurisdiction remained subject to conflicting opinions of. the adjoining nations, until by mutual consent gradually formed it has of recent years been accepted that the line of the status quo on the Atlantic side is the Sixola River, extending inland at least as far as the mouth of the Yurquin, and on the Pacific side Punta Burica." The discussion of the boundary has had a varied course. In 1856, caivo-HerrSn June 11th, at San Jose was signed a provisional treaty known as the "'®^''''° Calvo-Herran treaty. This described a proposed boundary running north and north-west from Punta Burica to the source of the Doraces River, thence by the course of the same to the sea. The river intended was described by the legislature of New Granada, in adopting a con- ditional ratification of the treaty, to be the present Sixola.*' It is safe to say, however, after considering the maps and geographical in- formation then available, that the course of the principal stream of the Doraces or Sixola River, running as it does far to the Avestward from its mouth, was not then known, and that to follow the course of the branch Yurquin would have fulfilled the intention of New Granada at this time. S2 A full explanation of the status quo is found in the "notes'* of Senor Alfaro beginning on page 248, eppecially from page 254 on, and in the letter of Minister Anderson on page 170. Official historical prec- edents to the same effect are found on pages 264 to 272. Also page 238. See page xxvi. 83 See pages 255 and 256. This treaty, liowever, v^as not ratified by Costa Rica, and never took ef- fect. Costa Rica did not agree with the aforesaid location of the Doraces, claiming that it coincided instead with the present Changuinola. It is to be observed, however, that this line, solemnly fixed by the representatives of both powers, should coincide with the line subsequently agreed for the status quo, if we accept the location of the Doraces claimed by New Granada. Important evidence is furnished by Felipe Perez, who published in 1862, at Bogota, a geography of the State of Panama, under the order of the general government of the United States of Colombia. He described the boundary as following the course of the Dorados, Doraces, or Culebras (now the Sixola), and as ending either in the river Golfito or at Punta Burica, acknowledging a dispute as to the proper point of ending on the Pacific side.'** The most significant part of this testimony, however, is the description of the course of the Dorados (Sixola) River in a southerly direction, thus confirming the impression that that river was supposed to run south and not loest from its mouth. ^* " Castro- Another official attempt was made to fix the boundary in 1865, March to^^Trf 1865. 30th, by the Republic of Costa Rica and the United States of Colombia. Then, too, the representatives of both powers, after very long and exhaus- tive studies and negotiations, signed another provisional treaty. The line described in this treaty diverged most significantly from the former one. It started at Punta Burica, ran to the head-waters of the Chiriqui Viejo, thence easterly over the crests of the mountain ranges forming the watershed between the waters flowing into the Atlantic and Pacific Oceans respectively, passing over the peaks Picacho, Horqueta, Playita, Hornito, to Santiago, thence in a straight line northerly to the source of the river Canaveral, and thence by the course of that river to its mouth. This line corresponds very closely to the one claimed bj^ Costa Rica in the arbitration proceedings before President Loubet. The treaty of 1865, after being signed by the president and passed for ratification by the senate of New Granada, Colombia, was finally rejected by the house of representatives in 1866, after one favorable vote in 1865. Arbitration All attempts of the interested powers to agree upon the true boundary having failed, the next attempt was to leave the matter to arbitration. A treaty was concluded at San Jose on December 25th, 1880, in which it was agreed to " fix a line which shall divide for all time and perfectly clearly the territory of" the two countries, "each one remaining in the full, un- "^ To tlie same effect is the map of Colombia of 1824 mentioned on page 255. 8^a The map of Manuel Ponce de Leon and Manuel Maria Paz (Bogotd, 1864) shows the Dorados or Culebras river as running almost due north and south. treaty of 1880. ■disturbed, and peaceful possession, as far as they are concerned between themselves, of all the territory which said line leaves on their respective sides." It was also provided that the arbitrator's decision "will at once be considered as a perfect, obligatory, and irrevocable treaty of binding force between the two high contracting parties, which formally and expressly renounce every claim of every kind against the decision of the arbitrator, and bind themselves to respect and fulfil it promptly, faithfully, and for all time, pledging therefor the honor of the nation." By an additional convention dated January 20th, 1886, the former treaty Additional was supplemented, among other things, in the following manner: Upon o™8|g"°° the insistence of the United States government that the limits of the terri- torial dispute should be fixed, article 2 of the supplementary convention provided : — "The territorial boundary which the Republic of Costa Rica claims on the side of the Atlantic reaches as far as the island Escudo de Veragua and the Chiriqui (Calobebora) river inclusive, and on the side of the Pacific as far as the Chiriqui Viejo, inclusive, to the East of Punta Burica. "The territorial boundary claimed by the United States of Colombia reaches on the side of the Atlantic as far as the Cape Gracias a Dios inclu- sive, and on the side of the Pacific, as far as the mouth of the Golfito River in. the Golfo Dulce." It was further provided in article 3 that "the arbitral award shall be confined to the disputed territory which lies between the extreme bounda- ries above described." One of the original arbitrators named was King Alfonso XII. of Spain, but Additional in 1885, after having accepted orally the position of arbitrator thus ^^i^ge*'"" inaugurating the arbitration, he died. After some unimportant difficulties with regard to an arbitrator, the interested powers executed a fm-ther con- vention dated November 4th, 1896, appointing the president of France as arbitrator, and thereupon the respective claims were duly submitted to President Loubet accordingly. The claims of Costa Rica were presented by Ambassador Manuel M. ciaimof de Peralta, with most profound studies and exhaustive information. ^°^^'^'^"'^- Costa Rica claimed exactly the following boundary, to wit, from Escudo de Veragua, southward to the mouth of Rio de Chiriqui, thence following up to its source in Cerro Santiago, thence along the watershed mountain range over Cerro del Hornito, Cumbre de la Playita, and Cerro de la Hor- queta to the eastern principal source of Rio de Chiriqui Viejo, thence following the course of the same river down to its mouth in the Pacific Ocean, east of Punta Burica. Claim of Colombia President Loubet's Award, Sept. 11th, 1900. Costa Rica's interpretation of President Loubet's Award. The boundary claimed by Colombia was exactly as follows: From the mouth of Rio Golfito in Golfo Dulce along a meridian which, crossing Rio Coto flowing into the Pacific Ocean and the rivers Lari and Coen, tributaries of the Tiliri or Sigsaula (Sixola), flowing into the Atlantic, in- tersects the Tiliri at 9° 33' north latitude, and 85° 31' 30" western longitude from Paris (83° 11' 16" western longitude from Greenwich), and thence in a straight line to the mouth of Rio Saratiqui, where it flows into the Rio San Juan at 10° 43' northern latitude, and 86° 15' western longitude of Paris (83° 53' 46" western longitude from Greenwich). On September 11th, 1900, President Loubet announced his decision. He made the following finding: "The frontier between the Republics of Colombia and Costa Rica shall be formed by the spur of the mountain range which starts from Punta Mona on the Atlantic Ocean and encloses on the north the valley of the Tarire or Sixola River, and thence by the ridge of the mountain range which divides the waters between the Atlantic and the Pacific oceans as far as the 9th degree of latitude, approximately. It shall then follow the dividing ridge between the Chiriqui Viejo and the tributaries of the Golfo Dulce to Punta Burica on the Pacific Ocean." This award had the great disadvantage of not being definite. Immedi- ately Ambassador Peralta wrote to Minister Delcasse, asking more exact data and suggesting that his (Peralta's) interpretation of the boundary line was as follows: "The frontier between the Republic of Colombia and that of Costa Rica shall be formed by the spur of the mountain range which starts from Cape Mona, on the Atlantic Ocean, and encloses, on the north, the valley of the Tarire River (or Sixola River) near the mouth of this river ; it shall follow in west-south-westerly direction on the left bank of this river, up to the confluence of Yurquin or Zhorquin River (also called Sixola, Culebras or Dorados) toward the meridian 82 degrees 50 minutes West of Greenwich, 85 degrees 10 minutes West of Paris, and 9 degrees 33 minutes latitude north. There the frontier line shall cut the Tarire thalweg (riverbed), on the left bank of the Yurquin, and shall follow in a southerly direction, the mountain chain dividing the waters between the basins of the Yurquin to the east and of the Uren to the west; then by way of the range dividing the waters between the Atlantic and the Pacific as far as about the ninth degree latitude; then it shall follow the line dividing the waters of the Chiriqui Viejo from those of the affluents of the Golfo Dulce, to terminate at the Punta Burica. The Punta Mona is situated under the meridian 82° 39' west of Greenwich (84° 59' west of Paris) and 9° 39' latitude north. The Punta Burica is situated under the meridian 82° 53' west of Greenwch (85° 15' west of Paris) and 8° 2' lati- tude north. The intersection of the boundary hne with the ninth parallel is at about 82° 45' west longitude of Greenwich (85° 5' west of Paris)." Minister Delcasse's reply was neither definite nor satisfactory. He stated that in the absence of exact geographical data the arbitrator had been able to fix the frontier by general indications only, that there would be difficulty in fixing the frontier on the map, and that it was left to the friendly spirit and good understanding of the two powers to fix the same on the ground. But all attempts to do so heretofore have failed, and the award has never been regarded as effective by either nation.*^ The Loubet award was never entitled to be called an award at all, and iPresident was wholly null and void from the beginning for two reasons: first, because /award void, the description of the supposed boundary line was so vague and indefinite / that the award was incapable of execution without further agreement of I the two powers; second, because the award included a large area not claimedj by Colombia and not within the hmits prescribed by the treaty itself. The latest attempt to reconcile their differences, which Mr. McConnell Guardia- ^ ^ ^ ^ Pacheco endeavored to frustrate, resulted in the execution of another provisional treaty ot 1905 treaty. This was signed at Panama on the 6th of March, 1905, and is known as the Guardia-Pacheco treaty. It provides for a line which runs as ioUows : — "A line which starting from Point Mona on the Atlantic ocean shall run in a S. W. direction until it strikes the Sixola river, below Cuabre. From this point the dividing line will run along the left bank of said Sixola river to its confluence with the Yurquin or Zhorquin river. Here the boundary will cross the bed of the Tarire or Sixola river to the left bank of the Yurquin and will thence follow in a southerly direction the water shed first between the heads of the Yurquin on the east and the Uren on the west, and then between those of the latter and those of the Tararia river until it reaches the crest of the great mountain chain which divides the waters of the Atlantic from those of the Pacific ocean. Thence the line will run in a E. S. E. direction along the said crest to a point named Cerro Pando which marks the beginning of the divide between the waters of Goto de Terraba and Chiriqui Viejo rivers. From there the boundary will continue along the crest of the Santa Clara mountains following the divide between the waters of the Goto de Terraba and Esquinas rivers on the west, and that of the Chiriqui Viejo and Goto del Golfo rivers on the east, until it reaches the head of the Golfito river following the com-se of this latter to its mouth in the Golfo Dulce which mouth is called '^ For Costa Kica, see letter of Minister Anderson, page 170; and for Panama, see. note of Senor .\lfaro, pages 248 and 250. Ratification of Panama. McConnell's agitation in Panama in Tlie Status Quo, Golfito. From this last point to Puntareiiitas an imaginary straight line drawn shall divide the waters of the Golfo Dulce." This provisional treaty has been ratified by the national assembly of Panama, and will shortly come before the legislature of Costa Rica for similar ratification. It is likely that the treaty would also have been rati- fied without question in Costa Rica if it had not been for the agitation instituted by McConnell in Panama in the autumn of 1906. McConnell attempted to persuade the legislators of Panama that the Loubet award had gone into effect, and that Panama had the right to the jurisdiction of the territory between the Sixola River and Punta Mona. He proposed that the legislature should pass a resolution directing the executive of Panama to take possession of this district and to exercise jurisdiction there.*" He also published open letters in the newspapers of Panama advocating such action.*' The government of Panama opposed McCon- nell's memorial and caused to be published a reply by Senior Alfaro.** Not- withstanding this, however, at a meeting of the legislature, on the 13th of November, 1906, when the president and other influential members of the government were absent from the city of Panama, McConnell procured a committee of the legislature to make a report in favor of his proposed action,*" and the legislature enacted a resolution directing the executive to exercise jurisdiction in the territory described. This sudden action, without proper consideration, created a sensation in Panama, and incurred the active opposition of the government. Shortly afterwards the national assembly revoked that resolution, and passed another declining to act as McConnell had proposed."" The agitation in Panama was followed with close attention at San Jose, and it unquestionably aroused a greater interest in the boundary contro- versy than would otherwise have been anticipated at this time. The action of the legislature of Panama, even though it was afterwards revoked, was contrary to the historical precedents, and created an unfavorable impres- sion in Costa Rica. During all of this controversy as to the location of the ti-ue and final boundary between the countries interested, there has existed the agree- ment and understanding that each country should continue to exercise jurisdiction up to the line actually occupied respectively in 1825."' The exact location of their occupation at that time, commonly referred to as the line of the status quo, has been uncertain because the localities in question were wild lands and not inhabited except to a small extent «i Page 226. S7 page 244. ss page 248. ™ Page 258. ™ Page 263. " Gual-Molina Treaty of 1825, page xxi. on the Pacific side. But recently the status quo has been acciu'ately fixed so far as concerns the vicinity of the Atlantic Ocean, and is the river Sixola, at least up to the mouth of the Yurquin. This is estabhshed for Colombia by the official report of the minister of foreign affairs, Senor Marco F. Suarez, to the national assembly of Colombia, submitted in 1894,'^ and for Panama by the communication of Senor Alfaro and the authorities cited by him.'' On the side of Costa Rica, the same is admitted in the official correspondence, copies of which may be found in chapter 6, and especially in the communication of Minister Jose Astua Agiiilar, dated 3rd March, 1906.'* The course of the Une from the mouth of the Yiu-quin, following the stream of that river or the watersheds in a general southerly direction, is fairly well established, but has never been an important consideration, since the territory is inhabited only by a few Indians. In the vicinity of the Pacific Ocean there is greater uncertainty. Punta Burica was formerly regarded as the limit of the respective jurisdictions,'^ but Colombian citizens have undoubtedly occupied territory between there and Rio Golfito, and of recent years it appears that Costa Rica has not disturbed the govern- ment of Colombia up to that river." The distinction is always to be borne in mind that the line of the statiis quo is merely one of convenience, and that the true and final boundary is to be determined by the royal grants, and not by the actual occupation of the two countries. This was the position taken by the representatives of both powers in the arbitration proceedings, and is historically correct. Therefore, if either country is found in actual occupation of territory which should belong to the other as of right, this fact should not influence the determination of the final boundary. But it can readily be seen that settlements actually made in an otherwise unoccupied territory create conditions which have some practical effect. Such occupation and settle- ment by the citizens of one nation make a very real, though perhaps not a legal reason, for suffering the jurisdiction of that nation to continue, and render equally difficult the assertion of rights of jurisdiction by another nation. It is sui-ely difficult to transfer a settled community to the juris- diction of some other nation than that whence it emanated, and which it has always recognized as sovereign. Therefore actual occupation and settle- ment are bound to command consideration and allowance, especially in the case of a controversy which has existed so long a time, and where the dis- S2 Page 264. ^ Page 258. ^ Page 158, 160. In the accompanying map the line of the status quo follows H. Pittier. * Report of Minister Suarez above referred to, page 265. puted area is so vast. So, too, the actual settlements necessarily affect the hmits of temporary jurisdiction, and to this is doubtless due the grad- ual alteration, if it has been altered, of the line of jurisdiction on the Pacific side. These considerations were paramount in influencing the conduct of Costa Rica when McConnell proposed to land the steamship "Orn" and to pro- ceed to build a railroad, open a port, and make settlements under reputed Colombian authority. To have permitted McConneU to do this would not only have subjected Costa Rica to the possibility of losing additional terri- tory, in the same manner as had actually occurred on the Pacific side, but would surely have prejudiced its case in the whole boundary controversy. It is seen how important it was to Costa Rica to forbid the landing of the "Orn," and how justifiable that action was. (Note. — A fiu'ther account of the early history of this controversy will be found in the interesting and learned article by Professor Edward Seler, Ph.D., reprinted on p. 323 within.) Competition at Bocas. There always has been a large number of planters at and near Bocas del Toro, who produced bananas and were ready to sell them to the best buyer. Any one could buy them. Joseph Di Giorgio began in 1903 to send ships there and bought large numbers. A period of competition ensued in which Camors-McConneU Company took an active part. They and the United Fruit Company paid such high prices for the fruit of the indi^ddual planters that Di Giorgio, being compelled to pay similar prices, found the trade no longer profitable. McConnell thereupon bought his banana plant. This is the only instance known where a banana merchant was forced away from Bocas by competition, in which the United Fruit Company was interested, and McConneU did it.*" Since then a disease has attacked the bananas on the Chiriqui lagoon, and has destroyed practically all the supplies available from Bocas, ex- cept some grown and owned by the United Fruit Company, and by Camors- McConneU Company. It is true that no one can buy any bananas at Bocas now, but this re- sult is caused by the disease and not by any operations intended to pre- vent competition or produce a monopoly. 83 Letter of T. D. Nettles dated August 1st, 1903, with euclosure, page V, and letter of McConnell dated August 3d, 1903, page X. As to other points in Central America as well as Jamaica and Cuba, any one can buy large quantities of bananas there. And this is proved by the fact that such is actually the case, and such bananas are bought and are brought to the United States and sold here by persons and cor- porations who have no association whatever with the United Fruit Com- pany, and are its active competitors. The United Fruit Company en- joys no monopoly of the banana trade. In the year ending September 30th, 1906, it. imported into the United States only 19,352,310 bunches of bananas, while others imported at least 17,376,897. In the year end- ing September 30th, 1905, the United Company imported 19,929,433 bunches, while others imported at least 13,409,709 bunches. CHAPTER 1. Containing copies of a few important letters.* Mobile, Ala. Cable Address: "McConnell/' — Limon. Bocas del Toeo. CAMORS-McCONNELL COMPANY. Growers — Exporters BANANAS. Bocas del Toro, Rep. Col., 4-23, 1903. Mr. T. D. Nettles, Mobile, Ala.: Dear Mr. Nettles, — T\1iile the weather has continued extremely dry until yesterday morning and last night, when there was a great down- pour of rain, the planters seem to have turned out better than usual to cut fruit this week, and it now appeal's that the "Gaines" will have a cargo of something like 20,000 bu. Beckmann has no steamer loading, which fact accounts in small part for the "Gaines"' large cargo. Fruit will doubtless be more plentiful next week, and, if the "Morgan" is back in time to load with the "Fulton," she ought to get a fair cargo. There seems to be but little change in the situation in reference to the opposition line, except that the "Fulton" got quite a fair cargo last week. That seemed to be due to the fact that Beclonann made the rounds, and told all the planters that, unless they gave that ship a full load, Digiorgio's boats would be withdrawn, and the price would drop to 55 cents. He al^ reported in some sections that our orders for fmit were for the United C^. Those reports had some influence, as we had on one occasion sent out notices for that purpose, then, too, one of that Co.'s launches deliv- ered a part of our notices. It remains to be seen whether such talk had more than temporary effect. Beckmann is paying 70 cents against our $1.00, but his more liberal selection about equalizes prices. All of our fruit is now costing $1.00 with the exception of that from Robalo and our own plantations. It would be a good idea to suggest to Mr. Ellis the advisability to have some one' approach Digiorgio with a proposi- tion to take his plant off his hands, but above eveiything see to it that Victor Camors has no finger in the pie. His work here was very expen- * See also letter to Secretary Haj', September 24th, 1903, page 55. B sive and absolutely worthless. In fact, I am confident that he did our interests real harm. I have not yet arranged to do any planting, but have spent much time since my arrival here in exploring different sec- tions of this country, and have finally determined that Sixola River is the proper place to plant, provided control can be secured, and it is found that a port close by can be made a safe harbor. Several parties besides myself are making an effort to secure the land and port, and it remains to be seen who will be successful. It was until some two and a half years ago disputed territory, when the President of France as arbitrator de- cided in favor of Colombia and against Costa Rica. On account of the revolution in this country a joint commission has never been appointed to survey and fix the exact line. The territor}' is therefore still under Costa-Rican jurisdiction, and that country sent soldiers a few days since, and stopped my work of securing the land according to Colombian laws. Temporary ai'rangements were, however, made with the conunanding officer for a continuance of the work, but, as that was contrary to his orders, the work is likely to be stopped again at any time. In addi- tion to the complications named, the C. R. government some years ago granted this land to an American in consideration of military services rendered. I expect to leave for Panama on this business Saturday, and may be there a week or two, but expect to return here before going to New York. Mr. Warren has made a draft on me on this account for some S395.00. Please open a special account in my books on that account. Mr. W. will draw again in a few days for some five or six hundred dollars on this account, and later for other sums as they are needed. If you run short of funds, borrow of the bank. You might discontinue paying at once grocery bills on which no discount is offered. It may be that I will need several thousand dollars while at Panama in order to secure the land. In that event, should you not be able to get as much as I need of the Trust Co., write J. W. or R. McConnell, B'gham, for any addi- tional amount that you may need to make it up. Say nothing about this matter, as I have reason to believe that the United Co. is responsible for the C. R. government's action in stopping my work. Mr. Flynn is taking hold as cashier, and wiU, we think, prove a good man. Herbert will handle the books, and he will, I hope, have the De- cember accounts ready in ten days or two weeks. Herbert was glad to get the lumber, even at the high prices, and you will, I hope, succeed in shipping the balance by the "Gaines" next trip. I enclose a letter from Cratty Bros. & J., and would thank you to -mrite c them that the matter will have my attention on my retm^n. I also en- close statement and check from McC. & C. Please file the statement and use the check. The Central Trust Co. statements sent me make fine showings. I thank you for them. I am also obliged for the suit of clothes. I am sending in care of Capt. Jullum a package of silks which Mrs. Dehls wishes you to express as per the address on the second wrapper. Charge the expense to K. .B. & Co. It would be well to buy pots or other vessels for fumigating purposes for both the steamers, in order to avoid the necessity for stopping at the Fort on outward trips. Please send Mr. Warren an additional $2,000.00 in $500.00 N.Y. checks. He will advise you in future when more is wanted. I have requested Mr. W. to send you by the "Morgan" about 200 Limes, six doz. Pines, and eight bu. Plantains. After supplying your- self liberally, divide the balance with Miss , Joe, WiUiam, and Mrs. . If the Pines hold out, j^ou might hand a few to Miss , also send a few to the Stationery Co. for Miss . Yours truly, H. L. McCONNELL. April 23rd, 1903. Messes. F. J. Alvarado & Co., Port Limon, C.R. : Dear Sir, — I beg to enlist your good services in the following matter: — I wish to cultivate certain lands that lay north of the Sixola River, extending on the ocean front to or beyond a point called Gadocan (or Goddocan or Cadocan) some two or three miles North of the river, and on the river for some miles up. I understand that this section covers a por- tion of territory that was ceded to the Republic of Colombia under a deci- sion in arbitration rendered by the President of France, and that the de- cision is binding on the two Governments, but that actual possession does not pass to Colombia until a joint commission shall survey and establish the line. - Pending this survey, I understand Costa Rica retains possession as far as the North bank of Sixola River. If there is nothing to prevent you acting for me, I will thank you to take this matter up with the Government of Costa Rica, and secure a per- D mit for me to go ahead and cultivate such quantity of land as I may find available, from the Sixola River along the ocean front as far as Gadocan or thereabouts, and running along the North bank of Sixola River as far as I may desire to cultivate. If you find it necessary to employ an attorney, I suggest that he be not identified with the banana interests of Costa Rica, and it would be well for you to ascertain that fact before securing his services. I understand that General Herbert C. Jeffries, who was employed by the Costa-Rican Government as an army officer a few years ago, received a land concession of 20,000 hectares from the Government in recognition of his valiant services, and that he has located his concession on the Sixola River, on a portion of the soil I propose to cultivate. Will you please ascertain if this concession was made, and if the title to same passed to General Jeffries, and if he still holds the concession, and whether or not this title will hold against the claims of a bona fide cultivator of the land, so granted? Also, whether or not such a concession, which included the site for a port, would prevent me taking possession of and improving such port? In securing the permit for me to cultivate the land, please include per- mission for me to select and improve a port convenient to said land and build the necessary railway to deliver the products of the land to the port. In the event the Government feels that it has not the authority to give permits over the territory under discussion, it certainly could issue the necessary permission with a proviso that it should be subject to the Colom- bian laivs, if such laws conflict therewith. We expect to m.ake use of Gadocan as a port. I understand that in Costa Rica the mode of securing lands along water- courses and ocean front is different from the ordinary way. Your attorney will probably be able to explain the matter quite fully, which explanation I will be glad to have, together with information as to whether or not the same rule applies to navigable streams as ocean front, and a definition as to what constitutes a "navigable stream." My understanding is that the title to lands along navigable streams and ocean front, for a certain distance back or inland, remains in the Government, but that the land may be cultivated by tenants who remain in undisturbed possession. If my presence is required in Limon, I will be glad to come if you can secure a permit for me to pass the quarantme authorities. There is really no necessity for quarantine now, as the small-pox has disappeared at this port, and clean bills of health will be issued from this time forward. E In order that you may act at once, I beg to enclose to you my power of attorney. Thanking you in anticipation, I am, Yours very truly, Herbeet L. McConnell. pp R. K. Warren. Panama, April 27, '03. Mr. R. K. Warren, Bocas del Toro : Dear Mr. Warren, — I regret to have to report that Romero has secured the concession to build a road from Goddocon to Sixola. I will, however, make an effort to buy his contract, but as yet have not approached him on the subject. If you have the opportunity, direct Bolder to make a careful investiga- tion of the railroad route from the north side of Goddocon to the River. We cannot parallel Romero's route within one mile on each side. It would hardly be advisable to send Jullum to inspect the Port. Please direct Alvarado to discontinue his efforts. It is my intention to return on the "Intrepid" next week. With regards to all, I am. Yours truly, H. L. McConnell. L. Heuer & CiA. Antes: H. R. Dieterich. Direccion Telegrafica : HErER. Colon, R.C, May 19, 1903. Dear Mr. Warren, — Francisco Lopez tells me this morning that he has been appointed Alcalde of Bocas, and that he wiU arrange with you for the issuance of the permit for planting on Sixola. He, no doubt, wants a few doUars. You wUl, of course, be governed by your judgment as to what is best to be done. He expects to return to Bocas on the "Intrepid" next week. I handed my appeal to the Prefect. Yours truly, H. L. McConnell. T. S. 11.-10,000 May, '02. Panama Railroad Co., Panama Raikoad S.S. Line. S.S Colon, 5-19, 1903. Mr. R. K. Wareen, Bocas del Toro, Dear Mr. Warren, — Mr. Molt lelLs ine that he will be entirely satisfied with $1,000 gold on account of the Gadocan concession. You will therefore please accept his transfer for any interest that he may have in the concession, issue him a draft on nie for half of the amount named (five hundred dolls.) and my agreement to pay the remainder when Gado- can has proved a satisfactory port in good and bad weather. Mr. Mott will hand you maps and drawings of the port, river, and lands, and render you any further assistance that he can. Yours trul}', H. L. McCoNNELL. Mr. M. thinks that Parades is still Alcalde. Agreement to pay Mott for the Romero Concession. Whereas Oscar Mott declares that a certain point on the Atlantic Ocean coast, between the point known as "Monkey point" and the mouth of the Sixola River and known as "Godocan" in the civil district of Bocas del Toro, Republic of Colombia, is a safe harbor and good port in good and bad weather for the anchorage of large steamships, and Whereas said Mott has sold to H. L. McConnell aU his interest or claims in and to a certain concession or contract between Ricardo Roman Romero and the Government of Colombia, whereby the former is granted the exclusive right to construct and operate a railway from the said port of Godocan to a point on the Sixola River, and Whereas the said McConnell proposes to improve the said port of Godo-. can, and as a further consideration for the sale of said claims or interest of said Mott in and to the concession or contract aforseaid the said Mc- Coimell proposes to pay said Mott the additional sum of Five hundred dollars ($500.00) United States currency (in addition to the five hundred dollars ($500.00) purchase price of Mott's interest) if and whenever the said port of Godocan has proven to be a satisfactory and safe port for steamships in good and bad weather. G Now, THEREFORE, I, Herbert L. McConnell, by my attorney, Robert K. Warren, promise to pay to Oscar Mott the sum of five hundred dollars ($500.00) United States currency when and on condition that the afore- said port of "Godocan" proves to be a satisfactory and safe port in good and bad weather, after the completion of the improvements I propose to make. Whereas I; Oscar Mott, did claim an interest in a certain concession or contract entered into between the Government of Colombia and Ricardo Roman Romero, approved by the Governor on the second day of April, 1903, whereby the Government of Colombia ceded and gave to said Romero the exclusive right to build and operate a line of railway to begin at Godocan on the ocean, and extend to a certain point on the Sixola River, in the District of Bocas del Toro, being on the Northerly side of said river, and Whereas Herbert L. McConnell did purchase from said Romero all the right, title and interest of whatever character owned or claimed by said Romero in said concession or contract, Now, therefore, I, Oscar Mott, for and in consideration of the sum of five hundred dollars (.1500.00) United States currency to me in hand paid by draft on H. L. McConnell, at Mobile, Ala., the receipt whereof is hereby acknowledged, do hereby give, grant, sell, and convey unto Herbert L. McConnell all my right, title, claim or claims and all interest of whatsoever character in and to the above-named concession or contract between the Government of Colombia and Ricardo Roman Romero as aforesaid. In witness whereof, I have signed this document, in the town of Bocas del Toro, Republic of Colombia, this 22nd day of May, 1903. Translated to Spanish — and will be recorded— on stamped paper. ' R. K. W. [Extract from Letter dated June 3rd, 1903.] D ear Mr. McConnell, — ... I sent a lighter load of goods and lumber to Bolder on Friday night, which got in the river, but the sea rose so while they were inside that we could not get the lighter out, and it is yet there. Grenaldo brought the "Esmeralda" out safe, but it was very rough. The sea must be absolutely calm before I will risk the "Messen- H ger" over the bar, or another lighter. Am trying to arrange with Bolder to have a lookout at Gadocan at all times to receive important messages. . . . With regards, Yours truly, R. K. Warren. June 10th, 1903. Dear Mr. McConnell, — By the "Morgan" I have your esteemed letter of 30th ulto., written at N. Y. The ship is so near loaded at this writ- ing that I cannot answer it as fully as I want to. Matters in connection with the application to plant are not moving satisfactorily. Parades, who is still alcalde, is in with the U. F. Co. gang, and they have made application for our land. We will circum- vent them with "Grease." The bonds will be attended to, and Bolder will go with the R.R. maps, etc., to Panama. Have just arranged with Valverde to go with him and arrange matters at Colon and Panama. Diplomacy and a little dinner will fix things all right and at little expense. The Costa Rica matter is being attended to by Valverde. He is pre- paring letter to the Governor to be signed by you. Will write you fully by Saturday boat. With regards. Sincerely yours, R. K. Warren. My exchange rate is maintained at 2.50. Leer won't come in. See his note enclosed. H. L. McCoNNELL, Prest. T. D. Nettles, Secty & Treas. Cable Address : "McConnell" CAMORS-McCONNELL CO. Growers — Importers. BANANAS. C. W. Blockley, Mgr. Bocas Division, Boca del Toro, South America. Mobile, Ala., U.S.A., June 10, 1903. Mr. R. K. Warren, Bocas del Toro, S.A.: Dear Sir, — ... I really do not think that any one will make any deter- mined effort now to disturb us, as the situation is, I feel, secured. Under the railroad concession we can condemn any property through which it is necessary to run, hence you need feel no uneasiness regarding the small piece of property near the beach. Mr. Kyes reported to Keith, so he (Mr. Keith) told me, that, whUe the land on the margin of the Sixola is equal to Changuinola land, that farther back is not. It is likely that ]VIi\ Kyes' trip there was sunplj^ for the purpose of ascertaining just what was being done and to get definite in- formation regarding the entire situation so as to make a report. Mr. Keith, it seems, deemed it best to treat the matter mildly, but I found the opportunity to name some of om- grievances which I did in very plain language. He made most reasonable propositions to induce me to with- draw from my intention to plant in Sixola, but I declined to entertain them until after I had ascertained definitely whether or not Gadocan could be made a satisfactory port. I told him that I would be glad to have him join me in improving the property, but no terms were mentioned, and it is understood that the matter will rest that way imtil the port has been passed on by an expert engineer. In the meantime I would recommend that you act as though there is no possibility of any rupture taking place between the United and Caniors Companies, and try to keep on as good terras as possible with Leer. I took occasion, when talking to Mr. Keith, to men- tion our difficulties in worting with that gentleman, and he will doubtless receive instructions to modify lus policy. Yours truly, H. L. McCONNBLL. P.S. — When Mr. Dolder goes to Panama, it would be well to Lave him ascertain whether or not the Government proposes to grant my applica- tion for free import duties on commissary supplies, material for building, etc., while the planting is being done. As you will remember, that matter is being looked after by Mr. Valdes. June 19th, 1903. Dear Mr. McConnell, — . . .1 have just spoken with the alcalde (Parades), and he said he wanted to see me at my room. I told him I was ready at any time. If greasing to the extent of four or five hundred silver is wanted, I will yield. If it is for a greater sum, I will submit it to you before agreeing. Faithf-uUy yours, R. K. Warren. July Sth, 3. Mr. H. L. McConnell, Mobile, Ala. : My dear Sir, — Your esteemed favor of 1st inst. is before me. I am not quite familiar enough with the Geography of Sixola to tell you exactly what lands are claimed by McGonigal, Parades & Co., but it begins some place three or four miles above our camp, and the extent claimed is 5,000 hecktares (can't spell it). This morning Parades came to see me accom- panied by Valverde and Outten. Parades asks j'ou to let them have this land without any more trouble and Valverde thinks it well that the matter be arranged this way. The matter is so serious that I promised to refer it to you, as it is beyond the purview of my authority. Parades has already issued an order countermanding the notice to us to vacate and has issued instructions to the Commissariat at Sixola to let us pro- ceed with our work without molestation of anj^ kind. This was evi- dently preliminary to his call upon me. The proposition is accompanied by another suggestion, as foUows: Parades is going to Bogata to have his rights to his land and other matters confirmed, ratified and approved by the Congress and Government. He proposes to have your rights ratified and confiii-med at the sam.e time, both as to youi- land and the Chiriqui road, provided you allow Dr. Valverde to go with him to Bogata. Valverde wants to go. They were indefinite as to the probable cost of the trip, and I could not get from either of them an idea of the cost. It provides for breakfasts, and I presume other lobbying expenses. Mr. Parades said that he would with pleasui-e issue to Bolder and me a permit for 5,000 odd manzanas each, and this will be included in the above pro- posed ratification. It seems that imder the present law all Panama prov- ince lands are open and title to same cannot be secm-ed except by special act or confu-mation, by special dispensation, from Bogata. It is prob- able that no one would be disturbed when cultivating land, but Valverde thinks it quite desirable for you to have government title and for that reason urges you to let him go to Bogata. I cannot say whether or not Valverde's motives are selfish, but he is evidently very much interested in you and yom' welfare. The question is up to you, and I ask you what you desire me to do in the premises, both as to letting Parades have the land and as to the proposed trip to Bogata. I confess I am at sea on both propositions. My belief is that we have om- land secure as weU as the land claimed by McGonigal, Parades & Co. Whether or not legal compHcations may foUow is a matter that I cannot foretell. But as Valverde seems anxious about it, now, though he did not seem to have any fear before, it puts me in a quandary. Valverde's reputation is that of a strictly honorable man, both here and Panama, and I carmot beheve that he is trying to "milk" us, but it looks "sorter" that way. If such be the case, are we willing to be milked, or shall we stand pat and fight it out? It may possibly be a real necessity to have Bogata ratifi- cation, and it might be well to think carefully over it before deciding. Parades is anxious to go, and awaits your answer by the retm-ning "Fort Morgan." I beheve you clearly understand the matter as I have put it to you. I have had nothing from Bolder since my last letter to you. I sent launch to Gaudocan on Sunday with mail and a few laborers. The launch waited 5 hours, and fearing bad weather had to start back without Bolder's answer. I wiU send again on Sunday. I note that you hope to secure an engineer thi'ough Mr. Clarke. I hope you wUl succeed in getting a good one, because Mr. Clarke is all right. I have, however, no fear of the result of the investigations of a good engineer, if he stays at Gaudocan and studies the case thoroughly. I have not a line from Goft' since I authorized him to proceed. Romero comes with a tale that parties leaving Bavid on June 30 neither saw Goff nor heard anything of the proposed work on the road. If this could be true, I presume Goff is gettmg his men, animals, tools, and supplies together preparatory to the work, and therefore is not visible. The collections for May, Rio Biarra, were $28.00 " June, Chkiqui " 93.00 Romero says there were no collections in May on Chiriqui. I paid Romero 49 per cent, of the net. I find another road comes out near Langey Bros., and have asked them to act as oui' agents there. Pretty near as much stock comes out there as at Rio Biarra. Have not Rio Biarra for June yet. James Smith at Crickamola will not do. Old "Uncle George" promises to find some one who will make collections at this difficult place. Romero superseded Kinkaid at Chiriqui, and took it up himself. I will get him "adjusted" m a month or two as well as the others. I believe this road is going to be a good thing. July 9th, — Sleeping over the propositions made by Parades, I am forced to the conclusion that they are not for our good. The sudden flop of Valverde, while he may think it a master stroke of diplomacy, looks to me a little dubious. If the quantity of ground was not so large, I would be in favor of letting them have it, for the sake of peace and diplomacy, but that land embraces some of om- best territory, as I understand it, and I believe it worth fighting for. I presume they would produce, in a lawsuit, a permit that would antedate ours, though we firmly believe that ours was filed first, and that our work had progressed considerably before they thought of filing an application to cultivate. These people, however, swear in all kinds of directions when it suits their purposes, and there is no telling where we would land in a legal action. The secm'ing of confirmatory or ratifying action by the Columbian congress is to my mind purely problematical, and would depend on the caprice of the members of that bod3\ On the whole, it might be better to save our ammunition for later requirements. No matter what way you think of the matter, please write me a separate letter that I may show the Alcalde and Valverde, giving your decision. I regret that I am unable to save you the trouble and annoyance of these vexatious questions and verbose correspondence, but the exigen- cies seem to require it. Sincerely yours, (Sd) R. K. Warren. July 2S, 1903. Sefior Ramon M. Valdes, Panama, Colombia: Dear Sir, — Mr. Warren has sent me an English translation of your letter of the 13th instant, addressed to Dr. Valverde at Bocas del Toro, together M with a copy of his (Mr. Warren's) letter to yoa of the ISth instant. I note from yoor letter that "'there is an undeistanding by which Colombia will not e^ffiicise jniisdietion on the left mazgin of the Sirsaola River, nor will the Kepublic of Costa Sica esercise Jurisdiction on the ri^t ade or mai^m of said river until sudi time as the boundary ? ^» all have been maited out in ecmfonnity with the decMon of the Arbiter tiiat decided the boundary question." I note further tiat Dr. Guerra, Secretary of Finanee, called attention to the fact thai the eontiact between the Government and B No. 1512. Camors-McConnell Compani'. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Ala- bama, and was argued by counsel. On Consideration "Wliereof, It is now here ordered, adjudged and de- creed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed. It is further ordered, adjudged and decreed that the appellant, Her- bert L. McConnell, and the sureties on the appeal bond herein, H. P. Vass, Henry C. McEwan and H. Piser, be condemned to pay the costs of this cause in tliis court, for wliich execution may be issued out of said Circuit Court. Oct. 30, 1905. UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. I, Charles H. Lednum, Clerk of the United States Circuit Court of Ap- peals for the Fifth Circuit, do hereby certifj' that the foregoing 2 pages numbered from — to — , inclusive, contains a true copy of the opinion and decree of the court, in the case of Herbert L. McConnell, No. 1512 versus Camors-McConnell as the same remains upon the files and records of said United States Circuit Court of Appeals. (Seal) In testimony whereof, I hereunto subscribe my name and afl&x the seal of said United States Circuit Court of Appeals, at the City of New Orleans, Louisiana, this 19th day of February, a.d. 1906. Charles H. Lednum, Clerk of the United States Circuit Court of Appeals for the Fifth Circuit. 45. No. 238. The Camors-McConnell Co. Herbert L. McCoxnell. United States Circuit Court, Eastern District of Louisiana. In Equity. The Deposition of John B. Camors, witness called on behalf of the complainant, taken before Henry J. Carter, Esq., Clerk of the United States Circuit Court, on the 18th day of January, 1906, at the office of said clerk, New Orleans, La., by consent, all formalities as to the mode of taking such deposition and the signature of the witnesses to same being waived. APPEAEAXCES. Mr. W-iLKER B. Spencer, Solicitor for com'plainant. Mr. Gregory L. Smith, Solicitor for defendant. John B. Cajiors, witness sworn and examined on behalf of complain- ant, testified as follows: — Direct Exaiwination. By Mr. Spencer: Q. Please state your full name, your age and your residence. A. My name is John B. Camors. I am in my sixty-ninth year, and I reside in New Orleans. Q. What is your business? A. Well, I am m. the commission busi- ness, — flour especially. Q. Were you ever, at any time, engaged as a member of a partner- ship in the importation from Central America and the sale ia the United States of bananas and other tropical fruits? A. Yes, sir. Q. Of what partnership or partnerships were you a member of that were engaged in such business at any time? A. First I was by myself, — ^J. B. Camors and Company; second, I went with Camors, McConnell and Company. 46 Q. When you were engaged in the banana and tropical fruit business under the name of Camors and Company, where did you operate in Cen- tral America? A. I operated a little everywhere, in Costa Rica, in Colombia and in Honduras. Q. What part of Colombia did you operate in? A. Well, Bocas- del Toro. Q. Which is now in Panama, I believe? A. Yes, sir. Q. When did you first engage in the tropical fruit business imder the name of Camors and Company? A. I could not tell exactly, but you know it has always been J. B. Camors and Company for the last forty- five years, and it became Camors and Company about ten years ago. ■ Q. Subsequently, I understand, you engaged in that business tmder the firm name of Camors, McConnell and Company? A. Yes, sir. Q. Can you state who were the parties that constituted the firm of Camors, McConnell and Company, or that were interested in that firm?' A. Yes, sir, there was Kroesman, Braden and Company, Mr. H. L. Mc- Connell, the United Fruit Company, and us. Q. I mean in the Camors, McConnell and Company, the partnership? A. Well, that is it, Kroesman, Braden, McConnell, I, and the United Fruit Company. Q. Were the W^einbergers interested in the Camors, McCoimell and Company, Jacob, Louis and Charles? A. At the beginning they were,, but they sold out. Q. Now, did the United Fruit Company have any interest in the part- nership of Camors, McConnell and Company, before the organization of Camors-McConnell Company? A. No, sir. Q. Well, then, I merely want the names of the persons who composed the partnership of Camors, McConnell and Company? A. I do not recollect of any others. Q. Except that the United Fruit Company had no interest at that time? A. Had no interest. Q. Do you know whether or not Mr. Herbert L. McCoimell, prior ta the formation of the partnership of Camors, McConnell and Company, had been engaged in the banana and tropical fruit business? A. I think he had, but I do not recoUect, I could not say exactly because he was in Mobile, and I was in New Orleans. Q. Did you ever hear of the Bocas del Toro trading Company or some such concern of that name? A. No, sir. It might have been in exist- ence, but I do not recollect it. 47- Q. How did you happen to form a partnership -nath Mr. McConnell to engage in the banana business? A. Well, he had some interest in Bocas himself at that time. Q. What was he doing down there, do you know? A. I don't know. He had some interest in Bocas at that time. We had some, and we joined together. Q. Don't you remember or recall whether Mr. McConnell was engaged in the fruit biisiness before you went in partnership with him? A. I think he was, but you know at the time this thing happened I was in Europe because we had an interest there in Port Limon, in Costa Rica, and we sold out that interest in Costa Rica, and we kept the Bocas del Toro and the Bocas del Toro interest, we went with Mr. McConnell. Q. Who made the arrangements that culminated in the formation of the partnership with j\ir. McConnell ? A. I think it was my son Victor . Q. After you went in partnership with Mr. McConnell, where was the firm of Camors, McConnell and Company to get the bananas and tropical fruit it imported into the United States? A. Get it in Bocas del Toro. Q. Through what ports in the United States did they import those bananas? A. Generally New Orleans and Mobile. Q. Did they ever, to your knowledge, import fruit through any other ports? -A. I think a couple of times they went to Baltimore and PhUa- •delphia. Q. Where did they sell the fruit which they imported into the United States? A. All over the United States. Q. Did they enjoy a good business? A. Yes, sir. Q. Were the people who were interested with you in the firm of Camors, McConnell and Company well kno^Ti in Central America? A. P&r- Jeclly, they had a good refutation. Q. Were any of them residents of Central America? A. Yes, sir, Kroesman and Braden. Q. Do you know whether Mr. McConnell was well known in Central America, in Bocas? A. He must hare been well known, he had been there several times. Q. He had been doing business there some time? A. Yes, sir, he was well known, sure. Q. What was the financial standing of the people that composed the firms of Camors, McConnell and Company? Were they men of large means or men of small means? A. Well, more than sufficient, much more than sufficient, large means. 48 Q. You are a man of considerable means? A. I have a little. Q. Don't be modest. I want you to state — I mean to say you are a man of considerable means? A. Yes, sir. Q. How about Kroesman, Braden and Company, are thej^ people of means? A. They are people of means, too, judging by the way they operate. Q. And the Weinbergers, were they people of means? A. I couldn't tell as much about them, but I think they were well off at that time. Q. And Mr. McConnell? A. Mr. McConnell also. He was the youngest of the crowd, I think. Q. I would ask you to state whether or not the Camors-McConnell Company had a good business? A. Yes, sir, ive had a very good busi- ness. Q. Wliat was the reputation of it for business integrity? A. First class. Q. Did you consider the firm of Camors, McConnell and Company had any good will connected with their business? A. Oh, yes. Q. In the bill of complaint in this case, Mr. Camors, it is alleged that the tangible assets of the firm of Camors, jMcConnell and Company was about $30,000, but that as a matter of fact that partnership received the smn of $50,000 for the sale of their property, business and good will to the Camors-McConnell Company. What was that extra $20,000 paid for? A. For the good will. Q. The contract which is sued on in this case, Mr. Camors, which was made between Mr. Andrew W. Preston the one part and the vari- ous parties interested in the firm of Camors, McConnell and Company on the other part, stipulated, among other things, that the Camors-Mc- ConneU Company, the corporation, should issue, in pa3fment of the busi- ness and good will which it purchased from the firm, certain shares of stock. Do you know whether those shares of stock were delivered to and received by the members of that firm, Camors, McConnell and Com- pany? A. Yes, sir. Q. Do you know whether the Camors-McConnell Company carried out all of the agreements which it was stipulated in here they should carry out, towards the members of the firm of Camors, McConneU and Company ? A. They were carried out until lately. Q. In what respect were they broken lately? A. Because it was agreed that all the good will was to belong to Camors-McConnell Company, and no one else, and — 49 Q. How was that broken? A. Mr. McConnell went out of the line. Q. In every other respect has that contract been complied with by the parties to it? A. Yes, sir. Q. For whose benefit was the stipulation made that you and Mr. Mc- Connell and the other parties interested in this partnership should not go into busuiess in competition with the Camors-McCoimell Company? Objection. Mr. Smith: Defendant objects to the question as calling for the opinion of the witness and not for the facts. A. It was for the benefit of the Camors-McConnell Company, for no one of us, vje all had to stay there. Q. "V^Tiy was this company that was formed called the Camors-Mc- Connell Company ? Objection. Mr. Smith: Defendant objects to that question as call- ing for the opinion of the witness as to the motives of the parties. A. Because our name was best known in the country amongst the people we xoere doing business with. Q. AVho was the first President of the Camors-McConnell Company? A. Mr. McConnell. Q. How long did he remain President? A. I could not tell, about a year and a half. Q. Do you know what Vjrought about that, why he ceased to be Presi- dent? A. Just because of his stepping out of the company. Q. How do you mean by his stepping out of the company? A. Going and doing what was agreed not to be done, going in the fruit business in another way. Q. Do you mean in competition with the Camors-McConnell Com- pany? A. Yes, sir. Q. He remained President then untU he broke his contract? A, Yes, sir. Q. Did Mr. McConnell have any knowledge or experience in the banana business that was valuable to the Camors-McConnell Company? A. Yes, sir. Q. Who was the active Manager of the business of the partnership of Camors, McConnell and Company? A. At that time, at first, it was Mr. McConnell himself. Q. You are now the present President of the Camors-McConnell Com- pany? A. Yes, sir. Q. And you were the senior member of the firm of Camors, McCon- nell and Company? A. Yes, sir. 50 Q. When did you first learn that Mr. McConnell was breaking his contract and going into business on his own account in competition with the Camors-McConnell Company? A. I could not teU exactly what time, but I found out as soon as he started to buy lands over there and plant bananas. Q. Did you remonstrate with him? A. I told him at that time I thought he had such a good thing with us I did not understand his idea of gomg out of us. Q. Did you object to liis breaking his contract? A. I told him he had no business to do that. I couldn't do anything else. Q. Were you aware of the fact, and did you consent to Mr. McCon- nell using the funds of the Camors-McComaell Company, its Ughters, its ships, for the piu-pose of conducting his private enterprise? A. I was not aivare of it, and, had I been aware of the fact, he ivoidd never have done it. Objection. Mr. Smith: Defendant objects and moves to ride out so much of the answer as states "if I had been aware of the fact, he would never have done it," because it is incompetent testimony, calling for the opinion and conclusion of the witness. Q. What do you mean by saying that, if you had been aware of it, he never would have done it? A. Because I would have stopped it; I would not have allowed it. Objection. Mh. Smith: Defendant objects to the answer upon the ground previously stated. Q. Did Mr. McConnell have anj' part in building up the business of Camors, McConnell and Company and its good will? A. Oh, yes. Q. Was he not the active Manager of that business? A. He was, at first. Q. I woidd ask you to state whether you know, generally, where the business that Mr. McConnell's new company, the American Banana Com- pany, will be carried on? A. Well, Mobile is what I imderstand. Q. Is the port of entry ? A. Yes, sir. Q. Now, where do they contemplate getting theii' bananas from? A. From exactly where we get ours. Q. Would the business conducted by the American Banana Company be in competition with the business of the Camors-McCormell Company? A. Why, of course it woxdd be, in direct competitmi. Q. Do you know how Mr. McConnell happened to become President of the Camors-McComiell Company? A. Well, he had stock and he was 51 occupied in that business, you know, he was active, doing that business actively, and he thought he would keep on. Q. Did he Avant to be President, do you know? A. I suppose he did because he got it. There was no objection to him. Q. I would ask you to state whether or not, so far as the extent of ter- ritory covered, places where the fruit is bought and the places where the fruit is sold, there is any difference between the business as formerly con- ducted by Camors, McCormell and Company and the business as it is now conducted? A. Is there any difference? Q. Is there any difference or is it the same business? A. Same busi- ness. Q. Do you know whether the Weinbergers had any business in Central- America? A. Yes sir. Q. Kroesman, Braden and Company you say resided in Central America ? A. They resided there. Q. And Mr. McConnell had been engaged in business in Central America ? A. Yes, sir, and was living in Mobile. -Camors-McConnell Co. | No. 238. V. }■ In Herbert L. McConnell. equity. Having examined and duly considered the pleadings and evidence in this cause I am of opinion that the complainants are entitled to relief, and that the defendant should be enjoined from remaining an officer of the American Banana Company, and from managing, directing or con- trolling its business or affairs, and otherwise from directly or indirectly engaging in the growing, importing or selling of tropical fruits in com- petition with complainants, as prayed for in their bill of complaint. A decree will be entered accordingly. On the motion to suppress certain portions of the testimony in the cause by both complainants and defendant, on the ground of irrelevancy and immateriality, and also as illegal and incompetent because hearsay, I make no special ruling, as, in my opinion, unnecessary. There is some eAddence which is irrelevant and immaterial to the issues made by the pleadings. This I have disregarded in the consideration 52 of the case except so far as it may have tended to affect the value of or weight to be given to the testimony of the particular witness to which the objection was made; and such evidence as I deemed incompetent because hearsay I did not consider at all in reaching a conclusion in the case. Harry T. Toulmin, Judge. Rendered and filed June 9, 1906. Richard Jones, Clerk. Camors-McConnell Company, Complamant, V. Herbert L. McConnell, Defendant. In United States Circuit Court for the Southern District of Alabama. In Equity. No. 238. Let the following decree be enrolled in this cause : This cause coming on to be heard for a final decree upon the pleadings and the proof, and the same having been argued by counsel for the re- spective parties and being duly considered and understood by the court, it is considered that the complainant is entitled to the rehef prayed by its amended bill of complaint in this cause. It is therefore adjudged and decreed that the defendant Herbert L. McConnell be and he is hereby perpetually restrained and enjoined from being an officer of the American Banana Company, and from managing, directing or controlling its affairs, and otherwise from directly or indi- rectly, either individually or by or through a corporation engaging in the growing of tropical fruits in competition with complainant, or in the importing or selling of tropical fruits anywhere in the United States in competition with complainant or in any other business in competition with complainant, the Camors-McC onnell Company, until after said Com- pany shall have ceased the active continuance and prosecution of the business of importing and selling such fruit, or until it has failed to show a profit for any calendar year after the year 1899. It is ordered that a writ of injunction issue to said defendant in accordance with this decree. 53 Let defendant McConnell pay all the costs which have accrued in this cause, for which let execution issue. Done in term time this 9th day of June, 1906. Harry T. Toulmin, Judge. Filed June 9, 1906, and entered on minutes, page 429. Richard Jones, Clerk. Certificate. I, Richard Jones, Clerk of the Court aforesaid, do hereby certify that the above is a true copy of the original decree on file and of record in my office as such clerk in the cause aforesaid. Witness my hand and seal at said Court this June 9, a.d. 1906. Richard Jones, Clerk. (Seal) PERPETUAL INJUNCTION. United States of America. CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA, FIFTH JUDICIAL DISTRICT CIRCUIT, AT MOBILE, ALABAMA. May Term, a.d. 1906. In Equity. No. 238. Camors-McConnell Company V. Herbert L. McConnell. The President of the United States, To said Herbert L. McConnell — Greeting: Whereas, at the present term of Court on the 9th day of June, a.d. 1906, the Court made and entered a decree in the above cause granting to the complainant and said Camors-McConnell Company a perpetual injunc- tion against the defendant, said Herbert L. McConnell, and directed that 54 a writ of injunction issue accordingly, a true copy of said decree is hereto attached ; Now, therefore, pursuant to and in accordance with said decree, you, the said Herbert L. McConnell, are hereby perpetually restrained and enjoined from being an officer of the American Banana Compan}'^, and from manag- ing, directing or controlling its affairs, and othermse from directly or in- directly, either individually or by or through a corporation, engaging in the growing of tropical fruits in competition with complainant, or in the importing or selling of tropical fruits anywhere in the United States in competition with complainant, or in any other business in competition with complainant, the Camors-McConnell Company, until after said company shall have ceased the active continuance and prosecution of the business of importing and selling such fruits, or until it has failed to show a profit for any calendar year after the year of 1899. The marshal of the United States for this district or any of his deputies will execute this writ and make due return according to law. Witness Honorable Melville W. Fuller, Chief Justice of the United States and seal of said Circuit Court of the United States for the Southern District of Alabama, at the City of Mobile, Alabama, this the 9th day of June, A.D. 1906. (Seal) Richard Jones, Clerk U. S. Circuit Court for the Southern District of Alabama 55 CHAPTER 6. Containing a full account of the action of tlie State Department of the United States in behalf of McConnell and of the negotiations between him and the government of Costa Rica, including also a clear explanation of the " status quo " of the boundary between Costa Rica and Panama and of the legal principles and rights involved with regard to the disputed area. COMMUNICATIONS TO AND FROM THE STATE DEPARTMENT BEFORE McCONNELL'S FIRST MEMORIAL Mobile, Alabama, Sept. 24, 1903. Honorable John Hay, Secretary of State, Washington, D.C.: Dear Sir, — It has become necessary for me to appeal to you for assist- ance in an effort to overcome a complicated and very embarrassing situ- ation. Some months since I bought of a Colombian citizen a concession issued by the Government of Panama granting the exclusive right for building a steam tramway or railroad to connect the Sixola River with a point knovra as Gadocan. That territory through which this road would nm was until three years since claimed by both Colombia and Costa Rica, when the question was arbitrated by President Loubet of France, who in his decision fixed it as Colombian. Before the recent revolution in that country a joint commission was appointed by Colombia and Costa Rica to survey and fix accurately the boundary line, but on account of that revolution the commission never acted. It now appears that there is an understanding between Colombia and Costa Rica that the latter will hold jurisdiction over the territory in question until the boundary line is accurately fixed by a joint commission, but it seems that the Government of Panama was unaware of the existence of such an understanding be- tween the National Government and Costa Rica when the concession in question was issued and when transferred to me. Such a railroad as that contemplated would be of no value unless the river lands were improved, which I in good faith commenced at once, planting bananas largely which wiU commence producing fruit in the course of about twelve months, and, unless arrangements can be made 56 promptly for inaugurating and pushing to completion the work of im- proAdng the port of Gadocan and building the railroad, the fruit will be a loss, as there are now no facilities for shipping it. All the improvements that I propose and ^\ash to make at once in the way of planting and cultivating bananas, building the railroad, and mak- ing the port improvements, will require an expenditure of $400,000 to $500,000 which would tend to increase very greatly trade relations both in exports and imports between the United States and Colombia. When in Panama on the 31st of August, Mr. Duran, who was then Gov- ernor, at my request cabled the Secretary of Foreign Affairs at Bogota, urging that a joint commission to fix the boundary line be appointed at once and directed to act promptly. He at the same time suggested that I request any friend whom I might have in Bogota to do what he could towards that end. When I suggested our Minister, he hesitated, but stated that that would be agreeable if he did not act in an official capac- ity. If you are kind enough to instruct him to interest himself in this matter, it must of course rest with you as to whether or not he act in an official capacity. Governor Duran told me during the inter-\aew referred to that Costa Rica had already sent a minister to Bogota, who was authorized to act in the matter; but, even should the joint commission be appointed at once and act promptly, I fear that a long period would intervene before Costa Rica's temporary jurisdiction is withdrawn, hence it has occurred to me that possibly on the request of Colombia that government would recognize the terms of this concession, thereby wholly overcoming the difficulty. "According to the terms of the concession, a copy of an Enghsh trans- lation of which I herewith enclose, plans and profile of the proposed rail- road were to be submitted within a given time, which was done, but the Governor declined to approve them unless subject to Costa Rica's tem- porary jurisdiction." Costa Rica has on several occasions interrupted temporarily my work of surveying and planting, and refused to allow a commissary built on the north bank of the Sixaola River or within the limits of its temporary jurisdiction, and I am forced to ship all supplies over the river bar, which is rough and dangerous both to life and property. Any shipments handled through Gadocan would be subject to confiscation, hence under such circimistances it is impossible to do anything towards the improvement of the port and the building of the railroad. The Colombian Govern- 5T ment is, of course, responsible to me vmder the concession for any losses inflicted b}- the Costa-Rican Government, but I of course desire to work harmoniously mth that government. Furthennore, the pajmient for goods confiscated would not secm-e the end desired, namelj', that of building the road and opening the port for vessels. An expert engineer, whom I employed at considerable expense to sur- vey the port situation and direct its improvement, has just returned, and I am now very anxious to push the work ■ndth as little delay as possible. Regretting that it has been necessarj^ to ■write you at such length in order to place the matter before you fully, and trusting that you will find the time to give it attention and will advise me what action you have taken, I am, Yours respectfully, H. L. McCoxxELL. No. 38 DEPAHTilEXT OF StaTE, Washington-, September 30, 190-3. Arthur M. Beaupre, Esquire, etc., etc., etc.. United States Minister at Bogota : Sir, — I enclose a copy of a letter from ilr. H. L. McConnell, in which he states that he owns a concession issued by the Governor of Panama, grant- ing the exclusive right for building a steam tramway or railroad to connect the Sixola River with Gadocan; that the concession lies in the territory decided by President Loubet to belong to Colombia; but that the boun- dary Hne has not been fixed by the commission; and that until so fixed Colombia pemiitted Costa Rica to administer the territory; and that the latter government is preventing him from operating his concession ac- cording to its teims. The Department does not know how far the acts of the Governor of Panama in relation to concessions of this character are subject to the control of the Colombian Government, but it cannot see how Mr. Mc- Connell can do anj^thing vmder the concession rmtil the boundar}^ line between Colombia and Costa Rica shall have been definitely fixed by a joint commission. You will, however, if you find the facts as stated, use your good ofiices in view of the American interests invoh-ed to facilitate the appointment and prompt action of a boundary commission. I am, etc. Alvey a. Adee, Acting Secretary. 58 No. 889. Washington, November 12, 1903. Meerv, Minister, San Jose : H. L. McConnell, American citizen, represents he owns concession from Governor of Panama, exclusive right to build railway connecting Sixola River and Gadocan in territory determined in 1900 by arbitrators ap- pointed by Colombia and Costa Rica to belong to Colombia, but boundary line not yet fixed by joint commission. Until fixed, Colombia permits Costa Rica administer territory. Costa Rica prevents McConnell contin- uing work begun pursuant to concession under threat confiscation of property. Present disturbed condition will probably delay fixing boun- dary. McConnell offers to give any reasonable bond to secure Costa Rica against damage from the continuance of the work. If facts as represented, use good offices with Costa Rica to permit the continuance of work. (s.) Hay. Cablegram received Sau Jose, Nov. 12th, 11.30 a.m. ^ No. November 14, 1903. To THE Honorable John Hay, Secretary of State, Washington, D.C.: Sir, — I have the honor to acknowledge receipt of your cablegram dated 12th inst., code translation of which I beg to forward herewith (Enclosure No. 1). I have made the inquiry instructed of the Acting Minister of Foreign Relations with the following result: The Government of Costa Rica, having been informed that Mr. H. L. McConnell was building a banana railroad from the Rio Sixaola to the httle port of Gadocan, sent an agent there to see what he was doing, and from this agent has received a report stating that Mr. McConnell has permission to build the road, granted by the Governor of the Department of Panama. The valley of the river Sixaola is being planted with bananas, and the use of the port is necessary in shipping them for the reason that the river bar is impassable from lack of sufficient depth of water. The territory through which the road is being constructed is awarded to Colombia by the Loubet decision, but Costa Rica claimed jurisdiction prior thereto. 'Wliile the Govern- ment of Costa Rica asserts, -with obvious propriety, that only the gov- ernment at Bogota could give a concession to build a railway through what was Colombian territory, it makes no assertion of invalidity because 59 it does not at this time claim jui'isdiction. It is disputed territory near the boundary line. The Acting Mininster of Foreign Relations assm-es me that his government has not demanded that the work be stopped, neither has it given permission that constructions may be continued. It would decline to accept any bond from Mr. McConneU lest such docu- ment might indicate that it clauns jtirisdiction over the territory, — a posi- tion it declines to assume at this time. It would appear that the only manner in which Mr. McConneU can now possibly improve his position is to apply for a concession from the present Government of Panama. Costa Rica would not, in my opinion, contest its right to grant such a concession at this time, but it would appear an act wanting in cour- tesy to Costa Rica, and therefore it might be refused. It should also be considered that the independence of the new Republic may greatly change the boundary cjuestion with Costa Rica, and, if the territory alluded to is finally awarded to the latter, such action on the part of Mr. McConneU may work to his prejudice here. Without fm-ther discussion of the matter, I can state that the Government of Costa Rica asserts that it has not demanded cessation of Mr. McConnell's work under threat of confiscation or otherwise. With assurances of my respect, I beg to remain, Sir, Your most obedient servant, William Lawrence Merry, United States Minister. No. 85. May 24th, 1904. To THE Honorable John Hay, Secretary of State, Washington : Sir, — Referring to your No. 36 of April 2.3rd I have the honor to for- ward copies and translations of the communications from the Foreign Office here in answer to my inquiries in the matter of the McConneU con- cession. I am. Sir, with great respect. Your obedient servant, William W. Russell. 60 No. 364. Office of the Secretary of Government, May 19, 1904. YotfR Excellency: In addition to my official Communication 326, dated May 10th, I beg to inform Yom* Excellency that neither the American citizen McConnell (H. L.) nor any other person is concessionaire of the right to build a steam tramway or to lay tracks between the Sixaola River and the harbor of Gandocan. Under date of the 2nd of April of last year the Secretary of the Treas- ury of the extinct Department of Panama, Dr. Julio Guerra, entered into Contract No. 44 mth Mr. Ricardo Roman Romero, in \'irtue of which con- tract there was conceded to the said gentleman the exclusive privilege "for the construction and estabhshment of a steam tramway, which would connect the harbor of Gandocan with the right bank of the Sixaola River in the District of Bocas del Toro." This contract was approved by the Governor of the extinct Department, Dr. Facundo Mutis Duran, upon the same date upon which it was entered into. Sent to the National Government of the Repubhc of Colombia for approval, the Minister of Finance, Dr. Ruperto Ferreira, annulled the con- tract absolutely through a resolution dated 31st of August, 1903, and com- municated to the said government upon the same date in official despatch No. 382 of the 6th section of that Ministry. I have the honor of enclosing to your Excellency an authentic copy of the said resolution. With sentiments of my most distinguished consideration, I am, Your Excellency, Yom- obedient servant, (Sgd) ToMAS Arias. To HIS Excellency W. W. Russell, Charge d'Affaires of the United States, Panama. (A copy of the enclosure referred to is found on page 10.) No. 966. September 16th, 1904. To THE Honorable John Hay, Secretary of State, Washington, D.C.: Sir, — Your No. 592 of August 8th was acknowledged on August 20th, and a definite reply would have already gone forward in relation to the 61 interests of Mr. H. L. McConnell at the Rio Sixola and Port Gadocan, had it not been necessary to await the reply of the Government of Costa Rica to my question regarding her claim of jurisdiction over the territory alluded to. While even at this date a formal reply has not been received, the two interviews I have had with the Acting Secretary of Foreign Relations, Sur-Jose Astua Aguilar, enable me to furnish the information needed. The Government of Costa Rica now not only claims jurisdiction over the valley North of the Sixola River and Port Gadocan, but I am credibly informed that such jurisdiction is not disputed by Panama. The divisional line between the two Republics will be established at the Sixola River on the Atlantic side, all North of the middle of said river being conceded as the territory of Costa Rica when the boundary treaty is formally completed and promulgated. Under these conditions, if Mr. McConnell desires fm-ther to pursue his labors at that location, it will be necessary for him to arrange terms of occupation with the government here and under the land laws of Costa Rica. Instead of further contesting the question, it now appears to be in his interest to freely concede the jurisdiction of Costa Rica as the preliminary step in obtaining a concession to develop the territory in ques- tion and to use the Port of Gadocan, which has not thus far been opened to foreign commerce by governmental decree. With assurances of my highest consideration, I beg to remain. Sir, Your most obedient servant, William Lawrence Merry, American Minister. No. 968 Leg.\tion of the United States of America, San Jose, Costa Rica, September 21, 1904. To THE Honorable Alvey H. Adee, Acting Secretary of State, Washington, D.C.: (Sir,— Referring to my No. 966 of 16th instant and No. 967 of 17th inst., I have the honor to state that I have received a long despatch from the Government of Costa Rica bearing upon both, and which it is desirable shall reach you prior to any action regarding the McConnell case or in con- nection with the pending boundary question between Costa Rica and Panama. The despatch in question and enclosure reached me late this evening, and the mail closing mil not permit translations and copies being forwarded 62 until the direct New York mail leaving here on the 26th inst. I am alsa credibly informed that some new difficult}'' has arisen in the boundary ciuestion between the two governments wliich may prove an impediment to a friendly settlement. I hope to send you more explicit information upon these points in my next, which should reach you about three days after this. With assurances of my highest consideration, I beg to remain. Sir, Your most obedient servant, William Lawrence Merry, American Minister^ No. 969. September 24, 1904.. To THE Honorable Alvet A. Adee, Acting Secretary of State, Washington, D.C.: Sir, — I have the honor to forward herewith copy and translation (En- closm'e No. 1) of a despatch received from the Acting Secretary of Foreign Relations of Costa Rica in relation to the McConnell occupation of the Port of Gadocan and lands adjacent thereto, in the valley of the river Sixola. Also copy and translation (Enclosure No. 2) of an Executive Decree of the Government of the Republic of Panama, wherein possession of said territory and port are accorded to Costa Rica pending the settle- ment of the boundary question between the two governments. These documents appear conclusive as to the advisabihty of appUca- tion to the Government of Costa Rica by Mr. McConnell, if he desires to further prosecute his work at the location referred to, it plainly appearing that Mr. McConnell is now a trespasser upon the pubUc lands occupied by Costa Rica. Mr. Adolf Bolder, a merchant at Bocas del Toro, was at this Legation prior to my retm'n from the United States, and, I am told by the Acting Minister of Foreign Relations, was to obtain a power of attorney from Mr. McConnell, with whom he is associated in this matter, authorizing him to arrange with the goverimient here for permission to prosecute the work, but I have seen nothing of him, although he wrote me from Bocas del Toro under date of August 18th, to which I replied on Sept. 2nd, approving his suggestion to return here for the purpose above stated. I am informed that he is now at Panama. With assur- ances of my highest consideration, I beg to remain. Sir, Your most obedient servant, William Lawrence Merrt, American Minister. 63 [The enclosures mentioned are the same as those enclosed in Minister Calvo's letter following.] Legacion de Costa Rica, Washington, December 23, 1904. iSiV,— Referring to what Your Excellency was pleased to express to me on Thursday, the 22nd instant, in regard to a claim of one Mr. Mc- ■Connell against my government, and confirming the information per- sonally communicated to Your Excellency in August and September last, in connection thereon, I have the honor to send herein enclosed copy and translation into Enghsh of a note from the Secretary of State for Foreign Relations of Costa Rica to His Excellency the Minister of the United States at San Jose, and decree of the Govermnent of Panama mentioned in the same, in which the demonstration is given that no wrong has been done to the claimant, Mr. McConnell, but, on the contrary, that lie has incm-red grave responsibiUties by having violated in various man- ners the laws of the country. ^ Be pleased. Sir, to accept the renewed assurances of my highest con- sideration. (Signed) J. B. Calvo. His Excellency John Hay, Secretary of State. [Enclosure No. 1.] Department of Foreign Relations, San Jose, September 21, 1904. [Translation.] Mh. Minister: I have the honor to answer your Excellency's note of the 2d instant, in which Your Excellency is pleased to communicate to me that Mr. H. L. McConnell, alleging to have acquired rights on certain lands at Gandoka to build thereon a tramway by virtue of a concession granted to him at Panama, the exercise of which, he says, has been obstructed by my gov- ernment, has apphed to the government of Yom- Excellency requesting its high protecting intervention. By virtue of the uti possidetis which for many years has been in force between Costa Rica and Colombia, and now between Costa Rica and the RepubUc.of Panama, our bordering Une on the Atlantic side is the river Sixaola, which means that the Gandoka region is under Costa-Rican sov- 64 ereigntj', and that, therefore, no man can invoke ownership, possession, or usufiiict in the said lands, except upon some title emanating from the Costa-Rican Government and authorities. Mr. McConnell is, therefore, um-easonable in pretending to base his alleged acquisition upon a grant or permission of the Governiment of Panama; but the case is still worse for him because even this kind of an explanation cannot be made by him. The Government of the Isthmus denies the existence of the alleged concession, and, what is worse, has explicitly declared by Resolution No. 28 of the Department of Govern- ment and Foreign Relations, dated August 2nd ultimo, and published in No. 47 of the Gaceta Oficial of the present year, that Gandoka has been and will continue to be ■ndthin the jurisdiction of Costa Rica as long as the question of the boundary between the two countries is not finally set- tled. That Resolution, a copy of which I have the honor to enclose here- with, and which, as Your Excellency \\t11 perceive, refers to a violation of the immigration laws of the Isthmus, positively states that Gandoka is foreign land to the Panamanian Government. It was issued against Messrs. Adolfo Bolder & Co., who appear to be associated or cointerested with Mr. McConneU in the matter to which Your Excellency refers. There- fore, the conclusion is inevitable that the said Mr. McConneU cannot use even the argument of error or ignorance about the rights of Costa Rica in the above-stated region. The foregoing would be sufficient to show to the righteous and learned government of Your Excellency that the clahn to which this correspond- ence refers is groundless, but I deem it advisable to set forth before Your Excellency the facts and the attitude of the claimant from the stand- point of our laws and authorities. Mr. McConneU, without having obtained any concession, and acting merely de facto, by simple occupation, as if the lands were vacant, took possession of a great extent of lands at Gandoka, cut down the timber in some places, undertook cultivation in others, began to construct a tramway, and, not satisfied with this, violated our customs laws, causing ships to come to that coast, and imported merchandise as if said locality had been authorized to carry on foreign commerce. The Government of Costa Rica, desiring to put an end to those acts of manifest usm'pation of ownership and disregard of the national sovereignty, and at the same time to enforce om* customs laws, sent to Gandoka not a military force, but a smaU section of the customs officers of the custom-house of Limon, — a section which still remains there in the exercise of its functions. ^I 65 These are the facts which I have already had the honor to explain to Your Excellency in the conference with which Your Excellency was pleased to favor me in these days. I entertain the conAaction that Your Excel- lency wiU clearly see that the claimant, Mr. McConnell, has no acquired rights in Gandoka, which is a portion of Costa-Rican soil; that, therefore, no wrong has been done to him by the action of our authorities in causing the power and the sovereignty of the State to be respected, and that, very far from being right, he has incurred a graA^e responsibility by taking pos- session of lands" with no title of anj' kind and engaging in foreign trade through a port which, according to our laws, is not a port of entry. I close this communication mth the flattering hope that the wishes of Your Excellency to obtain information about this matter have been fully satisfied, and, repeating to Your Excellency the expression of my high respect and consideration, I have the honor to subscribe myself, Your most obedient servant, (Signed) Jose Astua Aguilar. His Excellency William L. Merry, Envoy Extraordinary and Minister Plenipotentiary of the United States of America. (A copy of Resolution No. 28 referred to is found on page .) No. 976 October 9, 1904. To THE Honorable- Francis B. Loomis, Acting Secretary of State, Washington, D.C. : Sir, — I have the honor to advise the arrival here of Messrs. H. L. McConneU and 0. F. Bolder, their visit being for the purpose of ascer- taining whether any arrangement can be made with the Costa Rica Gov- ernment by which they can continue the development of the North side of the Sixaola Valley and the use of Port Gadocan as tributary thereto, pending the settlement of the sovereignty over said territoiy and port, Costa Rica being now in occupation thereof and having stopped their work. In accordance with your instruction to use my good offices with the government on behalf of Mr. McConnell, I introduced him to the Min- ister of Foreign Relations, stating the purpose of his visit and the hope that a mutually satisfactory solution can be reached. I beg to forward herewith (Enclosure No. 1) copy and translation of a permit from the Inspector of the Port of Bocas del Toro, Republic of Panama, authorizing the steamship "Orn" to proceed to Gadocan to discharge her cargo. The clearance is not specified as being "Coastmse" or "Foreign," but, if the latter, would be illegal for the reason that Port Gadocan has not been declared open to commerce bj'^ the Government of Costa Rica wliich is now in possession. The document is forwarded at the suggestion of Mr. McConnell. An able attorney has been employed by Mr. McConnell to draw up his proposed agreement with the Costa Rica Government, and he hopes that it may be accepted, possibly ■with some modifications. If decUned or vitiated by onerous requirements, Mr. McConnell having failed to accom- pHsh anything with the Panama Government, intends referring the case to the Department of State, but I hope this may not become necessary. In my verbal conmiunication with the Costa Rica Foreign Office regarding tliis matter, I have been careful to avoid discussion of the Loubet award and of the present boundary contention with Panama, except to assure the Minister of Foreign Relations that the United States Government will be much pleased if an agreement can be reached satisfactory to both governments. With assurances of my highest consideration, I remain, Sir, Your most obedient servant, William Lawrence Merry, American Minister. No. 976. [Translation.] Provisional Paper. Republic op Panama. First Class. To the Inspector of the Port. (Cliief of the Guard.) Present. Please grant permit that the steamer "Orn" in charge of her Captain, Morinkel, proceeding from Baltimore, and consigned to Otto F. Bolder, may weigh anchor for the place Gadocan (Sixola). Bocas del Toro, July 22nd, 1904. Otto F. Dolder, per Grabowski. Weigh anchor. The Inspector of the Port. (Signed) C. Clement. 67 No. 980. October 15th, 1904. To THE Honorable John Hay, Secretary of State, Washington, D.C: Sir, — I have the honor to report that, after twelve days of active effort, Mr. H. L. McConnell has been unable to obtain any agreement with the Costa-Rican Government authorizing liim to continue liis work at Port Gadokan and in the Sixola Valley. He intends remaining here a few days to consult with Ms attorney, but I apprehend that he ^viU not obtain any favorable result. Although Minister Pacheco has not formally re- sumed the duties of the Foreign Office, and returns to Panama on the 20th inst., he has been active in the McConneU case, and I have called upon him twice after my visit to the Acting Mnister of Foreign Rela- tions, Seiior Astua, to suggest some arrangement favorable to Mr. McCon- nell. Mr. Pacheco asserts that he hopes to aiTange the boundary question with Panama shortly after liis arrival there on the 22nd inst., and cannot permit any arrangement here with Mr. McConneU to impress the Panama Government unfavorably; that it might seriously interfere with his nego- tiations. Mr. McConnell having failed to obtaia the arrangement he desired at Panama after a month of patient effort, and being equally unsuccessful here, I do not see what he can now do except to await the result of Min- ister Pacheco's negotiations at Panama. It is due to the Costa Rica Foreign Office to recognize that, although aware that Mr. McConnell has been m-ging action at Panama prejudicial to its interests, the government officials here have received him pleasantly, and have considered his case on its merits, as it appears to them, Mr. Pacheco remarking that he cannot blame him for trying to protect the interests of himself and associates. With assurances of my highest consideration, I beg to remain, Sir, Yoiu" most obedient servant, William Lawrence Merry, American Minister. No. 76. December 20, 1904. To THE Honorable John Hay, Secretary of State, Washington : Sir, — Referring to your unnumbered instruction of October 29th, 1904, delivered to me while home on leave of absence, in regard to the national control of the land where an American citizen, Mr. H. L. McConnell, claims to have a concession, I have the honor to report as follows : — The section of country on the Caribbean Sea, between the mouth of the Sixola River and Point Mona, in which Mr. McConnell is located, was given to Colombia (Panama) by the Loubet award. Costa Rica, however, had possession before this arbitration, and has not yet yielded control to Panama, nor has Panama formally demanded it. A discussion is now taking place here between Senor Don Leonidas Pacheco, Envoy Extraordinary and Minister Plenipotentiary of Costa Rica, and the GoA^ernment of Panama in regard to the entire boundary line between Costa Rica and Panama with reference to its complete readjustment regardless of the Loubet award. Therefore, it will be im- possible to determine until this discussion is concluded wliich nation will have permanent sovereignty. The indications, however, point to Costa Rica's retiring from this territory as part of a quid pro quo for Panama's retiring from a corresponding portion of Costa-Rican territory. In the meantime Costa Rica is exercising all police jurisdiction in this disputed section, and it would seem to me that McCoimell's complaints should be submitted to the government at San Jose. As supplementary to this despatch and as bearing upon the subject of McConnell's concession, I beg to enclose a copy of a letter addressed to me by Mr. McConnell which was not delivered to the Legation until after my departure for the United States last September, and which I haA'^e not had time to give earlier attention since my retm-n. I have the honor to be. Sir, Your obedient servant, (Signed) John Barrett. [Enclosure.] Pan.A-MA, September 27, 1904. Honorable John Barrett, United States Minister, Panama : Sir, — Referring to our interview of this morning, I earnestly beg to request that you make a report to the State Department at Washington as to the present status of the boundary question between Panama and Costa Rica as explained to me yesterday. I feel that such a report coming from you would greatly facilitate the adjustment of Costa Rica's inter- 69 ference with my operations in the territory between the left bank of the Sixola River and Monkey Point, which is a part of that awarded to Colombia (now Panama) by President Loubet, September 11th, 1900. If you can do so consistently, I would appreciate it if j^ou woidd also convey to the Department my statement to the effect that, in addition to ■Costa Rica's having about two months since stopped all M'ork in the Gadocan on the coast between Monkey Point and the mouth of Sixola River, I am just now in receipt of a copy of formal demand from the offi- •cer commanding the Costa-Rican troops that all works of whatsoever nature on the left bank of Sixola River be stopped, and stating that, unless that order is obeyed, he will be forced to carry out his "instruc- lions." That practically means the suspension of aU my operations in that section, and the resultant losses, unless arrangements are made for prompt resumption, wiR be very great. The interference has heretofore been confined to work at Gadocan, where we are starting the active work of laying the railroad track and improve- ment of the harbor. While Panama c^uestions the legality of mj^ concession (wliich my attorney insists is vaHd),it offers to execute another as soon as the present compHcations with Costa Rica have been disposed of. This -government, however, admits its obUgations to protect my plant- ing interests, and on the 14th instant ad\'ised me, through an official com- munication authorized by the President and Secretary of PubUc Works, that the Secretary of State would be requested to demand that Costa Rica discontinue its interference. But on the 21st instant the Secretary of State addressed a resolution to me to the effect that his Office did not deem it prudent to make such a demand while the execution of the terms of the Loubet award are being discussed. Both Colombia and Panama have permitted, under written application for permission to plant fruit filed according to law and custom with the proper officials, that that and other improvements be carried on. Both these governments have all along up to the time of Costa Rica's stopping our work at Gadocan issued formal clearances for our lumber for that place, treating it as a home port. Since Panama professes a desire to protect us, but is apparently too weak, we feel that we have the right to ask and expect the United States Government to do so, and urge that you present the matter to the State Department and ask, in my name, that the necessary prompt cable action be taken to that end. Quite a large number of American citizens in Mobile, New Orleans, 70 Montgomery, Nashville, Tenn., Charleston, S.C., Cambridge, Mass., New- York City, Washington, D.C., and other cities, have recently become in- terested in these operations through the organization of the American Banana Company, to which the properties and rights referred to are to be transferred. The terms of the Arbitration Treaty of 1896 stipulated clearly that whatever the decision may be will itself serve as a complete and binding treaty between the contracting parties, and will admit of no appeal whatsoever. There can be no question, therefore, but that Panama now has the right of jvu-isdiction over the territory in question, wliich fact is pubhshed by the government itself in that part of its Constitution setting forth its territorial limits. The boundary hne as set forth in the award is fuUy as distinct as the provisional one named in the statu quo or treaty of 1880 (copies of wliich are doubtless on record in Washington). Hence there can be no greater difficulties in at once putting the former into effect than in the latter in accordance with terms of the Treaty of articles 4 of 1880 and 1896. The State Department will find, by referring to Minister Merry's report of November 14th, 1903, that it clearly states that Costa Rica "does not at this time claim jurisdiction." That report reads in part, "The terri- tory through which the road [my road] is being constructed is awarded to Colombia by the Loubet decision, but Costa Rica claimed jurisdiction prior thereto." As no new treaties or agreements have been entered into since that date, Costa Rica can now have no good or legitimate reason for her forced assumption of jurisdiction. Yours respectfully, (Sgd) H. L. McCONNELL. 71 McCONNELL'S FIRST MEMORL^I. TO THE STATE DEPARTMENT. Filed 21st December, 1904. "UNITED STATES OF AMERICA. Depaetment of State. Iisf THE Matter OF The Petition of Herbert L. McConnell AND Others for Redress for Property SUMMARILY SEIZED WITHOUT PROCESS OF LaW AND Lawful Business interfered with on Territory on the Sixola Rfv^er neah the Boundaries of the Republics of Costa Rica AND Panama. To the Honorable the Secretary of State, Washington: Sir, — I, Herbert L. McConnell, a citizen of the United States of America, and residing in the City of Mobile in the State of Alabama, through my attorney and counsel, Macgrane Coxe, of the City and State of New York, do hereby respectfully show as follows : — Touching again the matter relative to which I have already made sev- eral appeals to our Government for protection, and referring to the expres- sion found in the Department's letter of November 23d, 1904, addressed to Mt. Sydney R. Prince, of MobUe, Ala., I beg to saj^ that it is apparent that the presentations of the matter, as heretofore made by me, have im- pressed the Department ■nith the A-iew that in order to protect my rights it is necessarj- that our Government intervene between Costa Rica and Panama to determine, or in respect to the determination of, the boundary line between those two Republics. I respectfully submit that the neces- sities of the case do not requii-e this, and that such misapprehension has probably arisen from my ha\ing too strongly presented the rights wliich I claimed and claim under a certain concession obtained by me from the 72 Republic of Colombia or the Department of Panama through one Romaa Romero. In my claims under that concession I have, as I am now ad^dsed and verily beUeve, and therefore aver, neglected to make a proper presenta- tion of the rights which were vested in me long before the present difference as to the jurisdiction over the territory occupied bj' me arose, and which rights are quite as important and of the very greatest importance to me. The view taken by the Department, as I understand it is that, if I en- tered upon territory in dispute between the two countries by reason of a, controversy between them as to the proper location of their common boundary Hne, I must necessarily be held to have taken such chances as may be incident to the final determination of the tme boundary line be- tween the two Republics, without interference from our Government. The legaUty and equity of this position I by no means impugn, but I take it that, if I can show to the satisfaction of the Department that I acquired under Colombia vested rights in a given territory while the jurisdiction of that territory was concededly in Colombia, then no controversy that may subsequently have arisen between Costa Rica and Colombia or Costa Rica and Panama will be permitted to disturb the rights so acquired and vested before such controversy arose. This is the assurance that, as I understand it, was in substance given me by Mr. Adee's letter of January 19th, 1904,: and it is this claim that I make and now desire to present for your consid- eration. In other words, I assume that the Government of the United States wiU, in the first place, decline to interfere in any manner in the differ- ence as to the boundary line between the two RepubUcs, but will insist that all rights that were vested in its citizens before the difference arose, or not affected by the difference, shall be recognized and protected by whatever government may have jurisdiction over the territory, either temporary or permanent. In 1880 Costa Rica and the Republic of Colombia entered into an agree- ment known apparently to their officers as the Statu Quo whereby a line of jurisdiction was established between those two countries pending the establishment by arbitration and treaty of the true and final hne di- viding their respective jurisdictions. This hne was estabhshed along the centre of the Sixola River, and gave Costa Rica temporary jurisdiction over the territory now occupied by me. In 1896, however, a treaty of arbitration was entered into, whereby it was referred to the President of the French Republic to arbitrate between their respective jurisdictions, and by this treaty it was declared that 73 "The arbitrator's decision, whatever such may be, will itself serve as a complete and binding treaty between the two high contracting parties, and will admit of no appeal whatever. Both parties bind themselves to a faithful fulfilment and to resign all claims against the decision, staking thereon their national honor." On the nth day of September, 1900, the President of the French Eepubhc made his award, which was accepted by Costa Rica. The message of the President of that Repubhc to the National Congress on May 1, 190] , reads in part as follows (the italics are mine) :— _ "Referring to our international relations, I will commence by giv- ing you an account of an important and transcendental subject whose settlement has blasted the hopes of the Government and shocked in like manner the whole country. I refer to the decision, which as arbitrator his Excellency, Mr. Emile Loubet, President of the Re- pubhc of France, rendered under date of September 11th of last year, regarding the boundary dispute between Costa Rica and Co- lombia. Costa Rica, during a long period of laborious investiga- tion, and at a cost of great pecuniary sacrifice, succeeded in obtain- ing extensive and valuable evidence respecting her territorial rights m dispute, and on that evidence she based her defence and her hope of complete success in the controversy. Unfortunately, and con- trary to all expectations, the decision which— as far as it refers to th& southern part of the Republic satisfies in a great measure our legitimate claims by adjudicating to us a goodly portion of the ter- ritory of which we ^.oere deprived under the -provisional Statu Quo of the boundanes, and with it the exclusive sovereignty of the "lit- toral" of Golio Dulce— /zxe.s the boundary on the Atlantic side upon unfavorable conditions, and which signify for Costa Rica a consid- erable loss of the rights claimed. "That decision says:— 'The boundary between the Republic of Colombia and Costa Rica shall be formed bv the spur of the Cor- dillera which runs from Monkey Point on the Atlantic Ocean, and encloses to the north the Valley of the Tarire or Sixaola River, and thence by the Cham of mountains which divides the waters of the Atlantic from the Pacific to the ninth degree of latitude approximately and h-om thence it wiU follow the watershed between the Chiriqui Vieio River and the affluents of the Golfo Dulce, terminating at Burica Point m the Pacific Ocean.' "In the judgment of this Government, the boundary line was formed by the spur of the Cordillera which runs from Cape Mona {Monkeu romt) on the Atlantic Ocean and encloses to the north the valley of the lanre or Sixola River near the mouth of this river; that from thence it takes a southwest westerly direction to the left bank of this river to the confluence of the Yurquin or Zhorquin River (also called Sixola 74 Culebras or Dorados) to 82 degrees 50 minutes west meridian of Greenwich, 85 degrees 10 minutes west of Paris, and 9 degrees 33 minutes north latitude." This portion of the boundary line fixed by the Loubet Award, as con- strued and contended for by the Costa-Rican Government, gave the terri- tory occupied by me to the Republic of Colombia, so that the location of this particular territory within the jurisdiction of Colombia was not only determined by the Award, but conceded by Costa Rica, and was not in any manner in dispute. Ai-ticle 1 of Law 61 of 1874, and of Law 48 of 1882, estabhshed by the RepubUc of Colombia, and subsequently adopted by the RepubUc of Pan- ama, and wMch were in force at the time that I first acquired the rights in the territory in dispute, and which are still in force, when translated, read as follows : — "1st. Any person that occupies uncultivated lands and estab- Ushes thereon residences and artificial cultivation, acquires the right of property over the cultivated land whatever may be its extension. "2nd. When the cultivation consists of artificial pastures, coffee, cocoa, or whatever other fruits which do not necessitate the repeat- ing of the planting in order to obtain periodical crops, the cultivator acquires the right to have allotted to him a portion of adjoining wild lands equal in extent to those cultivated." In April, 1903, after the Loubet Award had assigned the territory now in question to the RepubUc of Colombia, and after the President of the Republic of Costa Rica had, as shown above, declared the construction placed by that Government upon the Award in so far as it designated the boundary line, and by such declaration assigned the territory in controversy to Colombia, and at a time when there was no dispute between the two Republics over Colombia's jurisdiction over that territory, I entered upon the lands now in controversy which then were uncultivated lands, and planted a large portion of them, and expended many thousands of dollars in the cultivation of fruits which do not require replanting, and established and built thereon about forty residences and other buildings. In doing so, I com- pUed strictly with the laws of Colombia then in force, and I respectfully submit that by so doing I acquired a vested right in the property planted at a time when there was no controversy over the boundary hne between the Repubhcs which in any manner affected the territory under discussion. In January, 1904, the War Department of the United States Govern- ment caused an official map to be made of the territory within the juris- 75 diction of Panama. It is presumed that it not only had before it such in- formation as I was able to obtain in regard to that territory, but much other matter to which I had no access, and according to the map thus made the territory in question was placed wdthin the jurisdiction of Pan- ama. A copy of this map is here-R-ith filed, and prayed to be made a part hereof. On February 15, 1904, the Government of Panama declared un- conditionally its sovereignty and right of jurisdiction over the territory through the pubUcation of its Constitution Ai'ticle 3 of which reads as f oUows : — "The territory of the Republic is composed of all the territory with which the State of Panama was created by an additional act of the Granadian Constitution of 1S53 on the 27th of February, 1855, transferred in 18S6 into the Department of Panama, with its islands and the continental and insular territory awarded to the Republic of Colombia by virtue of the decision of the President of the French Republic on the 11th day of September, 1900. The territory of the RepubUc stands subject to the jurisdictional limitations stipulated, or \^-hich may be stipulated in the Pubhc Treaties celebrated ^^^lth the United States for the construction, maintenance and sanitation of whatsoever means of interoceanic communication. The boun- daries with the Republic of Colombia will be determined by Public Treaties." These matters are mentioned merely to show that in entering upon this territory, claiming rights under the Repubhc of Colombia, I did not reck- lessly invade territory in controversy, but took possession of property only that had been assigned by the clear terms of the Award to Colombia, as already conceded by the Government of Costa Rica, as subsequently in- terpreted by the War Department of the United States, and as heretofore sho-WTi the Government of Panama on February 15 last declared to the world that that Award was in effect. Having obtained fuU title to the lands in controversy under the laws of Colombia and of Panama, I have the clear legal right to build a private railroad over them mthout any further concession from any government. It is true that I also claim special privileges for this road under a conces- sion obtained from the Repubhc of Colombia before the formation of the Repubhc of Panama, but, as these privileges are questioned upon grounds that carmot affect either my vested right to plant this territory or my right to construct a private road, without special privileges, over these lands, nor my right to the safety of my person and property from moles- tation or seizure while in the peaceful pursuit of my la-^-ful business, and 76 as these rights were vested when there was no dispute between the Republic of Costa Rica and the Republic of Panama over the boundary line that affected this territory, I do not now claim protection for the special privi- leges that I acquired under that concession, but am insisting upon the pro- tection of my vested rights acquired in a territory admittedly within the jurisdiction of Colombia at the time that I, in strict conformity with its laws, acquired a property interest therein. Prior to the fall of 1903 I had expended large sums, not only in planting these lands, but in making preliminary preparations for the construction of a railroad over them, when Costa-Rican soldiers stopped my survejang for a day or two at a time. At my instance you cabled Mr. Merry, Amer- ican Minister at Costa Rica, to use his good offices to prevent that Govern- ment from interfering further with my operations. On November 14, 1903, Mr. Merry reported to your Department in part as follows: — "It [the Govermnent of Costa Rica] makes no assertion of invalid- ity [of the McConnell concession] because it does not at this time claim jurisdiction. "The Acting Minister of Foreign Relations assures me that his Government has not demanded that the work be stopped, neither has it given permission that the construction may be continued." "It would decline to accept any bond from Mr. McConneU lest such document might indicate that it claims jm-isdiction over the territory, — a position it declines to assume at the present time." "The territory through which the road is being constructed is awarded to Colombia by the Loubet decision, but Costa Pdca claimed jurisdiction prior thereto." And it concludes, — "Without further discussion of the matter, I can state that the Government of Costa Rica asserts that it has not demanded cessa- tion of Mr. McConneU's work under a threat of confiscation or other- wise." Costa Rica then withdrew from further interference with me or my busi- ness until the latter part of the month of July, 1904, when it sent soldiers to Gadocan, and, after permitting the discharge of a large portion of a cargo of railroad suppUes, confiscated them, stopped all of the railroad opera- tions, and on September 21, 1904, the officer in charge of the Costa-Rican soldiers issued a written order that all the work, including that of planting (extending over a territory of some twenty rdles) on the left bank of the river, be discontinued. This attitude of Costa Rica has continued ever since, greatly to my damage. 77 I already have a large body of the lands in question planted with fruit, some portion of which is now maturing and going to waste for want of shipping facilities. In addition to this I have sustained a loss of many thousands of dollars through the confiscation of the railroad suppUes re- ferred to by being compelled to retain in my employ a number of persons who are under regular salaries, and have been damaged in many other respects. As my rights were obtained under the laws of Colombia, which laws still obtain in Panama, I appHed to the Panamanian Government for protec- tion. It admitted that it owed me protection, and the President of the Repubhc caused an official communication, dated September 14, 1904, to be sent me, which communication reads as follows : — "Mr. H. L. McConuell requests, in the foregoing memorial, that the Government of the Republic of Panama shall arrange with the Government of Costa Rica that, provisionally and pending the set- tlement of the boundaries between the two Republics, no impedi- ment shall be offered to the work in which he is now engaged on the spot denominated ' Gadocan ' situated on the left bank of the Sixola River. "Although this Department has concluded that the Republic of Panama does not recognize as valid the contract entered into between Mr. Ricardo Roman Romero and the Governor of the extinct De- partment of Panama, which was eventually transferred to Mr. Mc- Connell, it nevertheless, in consideration of the work that the pe- titioner has done on the spot denominated 'Gadocan' in matters of agriculture on a large scale, investing therein a large capital, the Govermnent is wdUing to afford him all possible protection within its sphere of action. In consequence, the Government resolves: — "To request the Secretary of Government and Foreign Relations to address the Govermnent of Costa Rica and to demand from said Government that, provisionally and pending the settlement of the precise boundaries between the two Republics, no impediment be offered by the authorities of the Govermnent of Costa Rica to Mr. H. L. McConnell in the work in which he is now engaged in the place denominated Gadocan." On September 22 the Secretary of Foreign Relations of Panama, Mr. Arias, wrote me as follows: — "For your information and final consequence, I remit you herewith the resolution which on this date was dictated by this office. Such reads as follows : — "Republic of Panama: Executive National Power: Office of the Secretary of Foreign Relations: No. 42, Panama, September 22, 1904. 78 The Office of the Secretary of Construction urges in resolution No- 33 of the 14th instant that the Office of Secretary of State and For- eign Relations demand of the Government of Costa Rica the discon- tinuance of interference wdth the work which Mr. H. L. McConnell is carrying on at the place called 'Gadocan.' As the execution of the arbitrated decision on limits between Panama and Costa Rica is being discussed at these moments, this Office does not consider it prudent at present to make the recjuested demand and be it so re- solved. Inform the Secretary." It was not until long after I had entered upon these lands, and had ex- pended large sums of money in planting, that I had any intimation what- soever that either Government contended that there was any dispute over the boundary hne between the two Republics which would in any way affect the land that I was occupying, and I respectfully submit that any controversy touching tliis matter which may have arisen after my rights were vested can in no wise affect those rights or deprive me of the protec- tion of my own Government in their maintenance. The present negotiations between Panama and Costa Rica, as stated to me in September last by the President and Secretary of Foreign Relations of Panama, and as I verily beUeve, are in the nature of an exchange of territory rather than the fixing of boundary hne between the two coun- tries. Costa Rica proposed to exchange the territory on the Pacific be- tween the Statu Quo and Loubet Award lines for all that territory belong- ing to Panama near the Atlantic, west of the 82d degree 50 minutes west meridian of Greenwich, while Panama was willing to make the exchange basing the Hne near the Atlantic on the 83d degree. In October Mr. Pacheco, Costa Rica's Secretary of Foreign Relations, confirmed the state- ments of the officials of the Panamanian Government as to the exchange proposed. Even if Costa Rica had at this time temporary right of jurisdiction over the territory, that Govermnent's interference would be in bad faith both with the United States Government and -with me, since in November, 1903, it clearly disclaimed the right of jurisdiction to Mr. Merry, a copy of whose report was placed in my hands by the Department of State in a letter from the Secretary to Hon. George W. Taylor, member of Congress under date of December 1, 1903. As shown, I have under the laws of Colombia and Panama obtained vested rights in lands, the sovereignty and jurisdiction of which were at the time conceded by Costa Rica to Colombia, and in February last were unconditionally claimed by Panama through the publication of its Consti- 79 tution; that Government admits that it owes us protection, and Costa Rica -after sHght interference with my work in the fall of 1903 declared to the United States Minister that it did not claim jurisdiction, under which as- .surance I continued to carry on improvements, and expend large sums of money, feeling assured of no further interference. Under all the circumstances I respectfully submit to you that Costa Rica's action in seizing my railway supphes and stopping my work after it had been carried on for fifteen months at very heavy cost was wholly unwarranted, and especially is that tme since it could not possibly sustain any loss by allowing it continued. That Government could, if it so de- sired, and if permitted by Panama, continue to police the territory without interfering with my operations. Unless rehef is obtained at an earl}^ date, my losses, which are needlessly caused by Costa Rica, will be very great indeed through the impossibility of sliipping fruit which will be maturing in great quantities. I carried on all those operations alone until the 18th of June, 190-1, when a large number of American citizens became interested through the organization of the American Banana Company (which is to succeed to the properties), all of whom look to our Government for the protection of their interests. Not only I, but all but about six of said persons, not only are now, but at all the times herein mentioned, were native-born citizens of the United States of America, and fully intend always to con- tinue so to be. As has been shown, the lands in question are on the north bank of the Sixola River, which river empties into the Caribbean Sea, near the little port of Gadocan. The lands entered for cultivation and cultivated by me under the Colombian statutes above referred to amount to about 10,000 acres, of which about 5,000 acres were planted by me and in full cultivation until my work was stopped as hereinafter stated. These lands were planted with the best banana plants, about one-half million in num- ber, and the total expenditures made by me in and about such planting and cultivation was upwards of $88,000. These plants, when in full bearing, which stage they should reach about the month of September, 1905, will produce about nine hundred thousand bunches per year of a net value, after pa5Tnent of all cost and expenses of cultivation, gathering, handling, transportation, and selling, of about fifty cents per bunch at the Port of MobUe, or a total net value per annima of $450,000. In order to convey this crop to the coast for market, I have laid out on my said lands a tram or railway line of the projected length of about 80 twenty-five miles. But few rails have as yet been laid, owing to the inter- ference complained of, but before such interference began I had already cut and cleared the right of way, at a cost for this work alone of about $5,000. This rail or tram way is to be of forty-two inches gauge, the rails, the standard sectional steel rails (with steel angle joints), weighing thirty- five pounds to the yard, and the ties are likewise all to be of steel known as steel channel ties with steel cHps and bolts. I have also purchased and shipped to the ground one locomotive and five flat cars, but have been prevented from using them or otherwise disposing of them, as will herein- after appear. The first consignment of rails, ties, angle joints, cUps, tools, and ma- chinery for the work, and the locomotive, were shipped by the Norwegian steamship "Orn" from Baltimore on or about July 9, 1904. There were on board of steel rails 916 tons, and of steel ties about 26,000, with the- necessary angle joints, bolts, and clips for the same. The ship cleared from Baltimore for Bocas del Toro, Panama, entered the goods at the custom-house there, and duly there received a permit to proceed to Ga- docan for unloading (as will be seen by reference to Mr. Merry's No. 97& of October 9, 1904), and to that point it accordingly proceeded for this purpose. On arrival at Gadocan, however, the master, Mowinkle, was met by some Costa-Rican armed men, the commanding officer of whom forbade the unloading of the ship. Thereafter the commanding officer was prevailed upon to allow the unloading to go on until the Government at San Jos6 de Costa Rica could be communicated with. This took about eight days, during which the discharging of the cargo continued. At the end of this period, when about two-thirds of the cargo in tonnage, but three-fourths thereof in value, i.e., about $36,000, had been unloaded, the commanding officer of the Costa-Rican troops ordered all work of every kind to cease, and would not permit my agents to take or in any way use the landed merchandise or go on with the work in any manner. During the work of unloading a large fighter, about half loaded with cargo, was sunk in some sixty feet of water, and although I have procured a diving apparatus from New York at a cost of about $500 for the purpose of raising the fighter and its load, and have accessible the other appliances for the purpose, I have been prevented from doing so by like orders of the Costa-Rican officers. The "Orn" was thereupon compelled to, and did, withdraw to Bocas del Drago to unload the balance of the cargo ; that is to say, some twenty miles away, with all the added expense of transshipment and rehandhng 81 thereby made necessary. Again, on or about August 5, 1904, the schooner "Oscar G" left Mobile with about 50,000 feet of lumber, five flat cars, and some general merch'andise, provisions and tools for the works, of the value and cost in aU of about $2,500, and was obUged likewise to discharge at Bocas del Drago. Although, as shown, as much as 916 tons of steel rails and 26,000 steel ties have been seized or expelled by or under the authority or alleged authority of the Costa-Rican Government, this is by no means all the loss that Mr. McConnell and his associates suffer in this respect. They are under contracts calling for a total delivery (including those above men- tioned) of these rails and ties, with the necessary accessories, such as angle joints and cHps, of 1,375 tons of steel rails at $20.95 per ton, and 50,000 steel ties at 51J cents per tie, all f. o. b. Baltimore, and all deliverable by December 31st, 1904. Thus not only have these citizens been put to the loss of the property actually seized, and to the other great losses conse- quent on their being compelled to stop all their work, even that of the rescue of property sunk by accident into deep sea water, but they are also inaminently threatened with having to respond in damages here for the non-fulfilment of contracts for the purchase here of materials necessary and appropriate for the development and improvement of the territory in question. It is to be noted that a considerable proportion of the labor performed and money expended as herein set forth was performed and expended on the right or southerly bank of the Sixola River, that is to say, on territory not in dispute, but conceded to Panama, and that the stoppage of the work as aforesaid will render aU of this expenditure of no value whatsoever, and a total loss to your memorialists, although con- cededly made and performed by them in accordance with law. Aside from all prospective damages, by loss of crops, profits, and other- wise, Mr. McConnell's actual outlay to date, which, if he is not presently permitted to go on with the work, will prove almost a total loss, amounts (including freights, insurance, etc.) to about $200,000, as follows: — Port Gadocan and Railway Engineering $4,000 Clearing railroad right of way 5,000 Locomotive, 5 flat cars, and hand cars 4,500 Hoisting outfit and diving apparatus 2,000 Railroad tools, etc 2,500 ' 916 tons railroad steel rails 24,900 '■ 26,000 steel ties 16,300 82 Launches, lighters, etc 8,000 Buildings 10,000 Stock of merchandise 8,000 Wharf improvements at Gadocan 2,000 5,000 acres planted in bananas 88,000 $175,200 Rails and ties to be delivered before close of 1904 as per contracts 23,000 $198,200 Interest charges will more than make up a total actual expenditure of over 1200,000. "Why should all tliis property be wantonly wasted? The continuance of the work, under proper safeguards, can do no harm to either RepubUc, but must benefit both of them in bringing capital and a large new industry upon their borders. Is not the enlightened course (admitting for the sake of argument that there is a dispute as to jurisdiction, wliich we do not concede) to release this seized property at once, and permit the work to go on, the property and persons concerned to be eventually subjected to whatever sovereignty may be found to have dominion and authority? As to the seizure itself, it is respectfully submitted that there can be Uttle doubt that it was whoUy unwarranted, and so tortious in its nature that it is the duty of the Government of the United States to ask, and its clear right to expect, prompt release of the property to its 0T\Tiers. If the Republic of Costa Rica makes any claim that its customs laws or any other law has been violated by your memoriaUsts, and that it has seized and holds the property, and has caused the stoppage of said work, by reason of any such violation or for any failure or wrong-doing whatsoever, then it is respectfully submitted that such a claim was not put forth until after the said seizure, and j'our memoriaUsts had no notice or knowledge of any such claim prior thereto. On the contrary, as we have seen, but a few months before the seizure, when referring to a previous act of in- terference with your memoriaUsts' work, and one of much less gra\ity to your memoriaUsts, the Costa-Rican Government, in the most distinct and formal manner, through the Minister of the United States at San Jose, not only denied that it had made any seizure or confiscation or demanded cessation of the work, and disclaimed the same, but even disclaimed any jurisdiction or any intention of claiming any jurisdiction whatsoever over the territory in question (Mr. Merry's No. 889 of November 14, 1903). 83 Under the faith of these disclaimers your memorialists transported these large amounts of property to the lands in question for their development, and expended these large sums of money in and about the same business; and the seizure and stoppage of work, they respectfully allege, is an un- warrantable and tortious violation of their substantial property rights, without any redress in the courts of either of the Governments concerned, and therefore the proper subject of diplomatic interposition in their behaK. It is true that after having entered the steamship "Orn" at Bocas del Toro, and having given it permission to proceed to Gadocan to discharge, the Panaman Government has made a claim for duties on these goods, but said claim is in process of adjustment, and said Government has not made any protest against the discharge of said cargo, nor has it filed or asserted any claim or hen upon said goods by virtue of which they are being held by the Costa-Rican soldiers, armed men or Government, as the agents of the Panaman Government or otherwise. Wherefore your memorialists respectfully pray: — First. That the Government of the United States wiU demand of the proper Government or Governments that the property heretofore seized may be at once released to your memorialists, including houses, railway supplies, and aU their property; and that they shall be permitted to pursue the work of planting, cultivating, and developing the territory in question, including the completion of said tram or railway, the raising of the sunken materials, and the landing of those delayed, and of such others as may be necessary and appropriate at Gadocan, and in all respects con- tinue the work of development and improvement upon which they have entered, free of and from any molestation whatsoever by said Governments or either of them; and Second. That your memorialists demand damages for their losses caused them by said illegal acts on the part of the Government of Costa Rica in United States gold or the equivalent thereof, as follows:— (a) For the moneys actually expended in and about the cultivation, erection of buildings on and improvement of said lands, as per the schedule hereinbefore set forth, the sum of $200,000, with interest thereon at the rate of six per centum per annum from the 25th day of July, 1904. {b) As losses sustained by them by reason of their being prevented from carr3dng on said work, the sum of $2,000,000, with interest on said sum at the rate of six per centum per annum from the date hereof. As here- inbefore shown, a conservative and reasonable estimate of the net profits of the said banana-growing enterprise is at least the sum of $400,000 a 84 year, which, capitalized at the rate of 20 per centum per annum, produces a capital loss of the said sum of $2,000,000. (c) Under and by virtue of the provisions of the laws of the RepubUcs of Colombia and Panama hereinbefore set forth (Fols. 14 and 15, Ante), your memoriaUsts have, by Adrtue of their planting and cultivation of said about 5,000 acres of said land, as aforesaid, acquired "the right to have allotted to them a portion of adjoining wild lands equal in extent to those cultivated." For the losses of these adjoining lands, they are, at a conservative esti- mate, entitled to and they demand damages in the amount of $10,000, with interest thereon at the rate of six per centum per amium from the date hereof. Third. For such other and further reUef as in the premises may seem just. And your memoriahsts will ever pray. Dated Washington, December 21, 1904. (Sgd) H. L. McCONNELL, For himself and on behalf of the persons composing the American Banana Company. Macgrane Coxb, Attorney and of Counsel for Memorialists, 63 Wall Street, New York City, N.Y. District of Columbia, City of Washington, Herbert L. McConnell, being duly sworn, deposes and says that he is one of the memorialists mentioned in the foregoing memorial; that he has read the same, and knows the contents thereof, and that the same is true of liis own knowledge except as to the matters alleged on information and belief, and that as to those matters he beUeves it to be true. H. L. McCONNELL. Sworn to before me this 22d day of December, 1904. (Sgd) WILLIAM McNEIR, Notary Public. {Notarial Seal.) 85 FURTHER COMMUNICATIONS TO AND FROM THE STATE DEPARTMENT AFTER McCONNELL'S FIRST MEMORIAL. No. 619 Department of State, Washington, February 8, 1905. William L. Meery, Esquire, etc., etc., etc., San Jose. Sir, — I enclose duplicate copies of a Memorial filed with the Department on December 22, 1904, by Mr. H. L. McConneU, of Mobile, Alabama, on behaK of himself and others composing the American Banana Company, and of the docimients filed with the Memorial. I also enclose two copies of a letter to the Department, dated February 2, 1905, from Mr. Macgrane Coxe, attorney for McConnell and the said Banana Company. You wiU bring the matter informally to the attention of the Costa-Rican Government, and wiU also furnish it copies of the documents above men- tioned for its information. It is alleged that McConneU and the Banana Company are sustaining unnecessary losses from goods sunk in a Ughter which they are not per- mitted to salve, as well as other unnecessary losses and injuries, and it is desirable that they should be, in any event, saved from such unnecessary losses. You will say informally to the Minister for Foreign Affairs that the Department does not now undertake to pass on the merits of the question presented by Mr. McConnell in the Memorial aboA'^e mentioned. But you win add that the Department would be pleased if a modus vivendi could be arranged between the Costa-Rican government and the said McConnell and his associates, which would have the effect of saving them from im- necessary and avoidable losses for the time being. The Department does not imdertake to interfere in any matter of boundary disputes between the Costa-Rican Government and Panama, and any equitable arrangement that might be made between the former government and McConnell and his associates would be without prejudice to any rights of title which either of the parties may be eventually considered to have. You will say to the Minister that the Government of the United States is not making any intervention in the matter, reserving the whole subject for fuller considera- tion, should that become necessary, but you are simply acting in the way 86 of good offices with the earnest hope of the Department that some satis- factory modus Vivendi may be arranged between McCormell and his as- sociates, on the one hand, and the Costa-Rican Goverimient on the other. You will cable briefly the substance of the Costa-Rican reply. I am, Sir, Your obedient servant, John Hay. No. 101.5. Legation of the United States op America, San Jose, Costa Rica, February 24, 1905. The Honorable John Hay, Secretary of State, Washington, D.C. : Sir, — I have the honor to acknowledge receipt of your No. 619 dated February 8th, with enclosures relating to the McConnell claim against the Government of Costa Rica. Having carried out your instruction therein, I have sent you cablegram reading as follows, translated from code: "Costa Rican Goverimient expects to sign boundary line treaty with Panama in a fortnight. Meanwhile has agreed to mutually satisfactory modus viveiidi with McConnell." While the proximate signing of the treaty assigns to Panama Port Gadocan and the lower valley of the Sixola River, the ratification of the treaty by the Panama Congress which does not meet imtil September, 1906, unless called in special session, makes a modus vivendi with Costa Rica possibly advisable, although, after the treaty has been signed, I feel confident the Government will no longer obstruct the work of Mr. McConnell. In carrying out your instruction, I called upon Minister Pacheco to aid me, as Minister Astua has other portfolios under his control and is overworked. Mr. Pacheco leaves for Panama via Colon on Monday, February 27th, to sign the treaty. He asserts that Mr. McCoimeU has done all in his power at Panama to prevent a settlement of the boundary question, while Mr. Astua states that on two occasions he expressed his willingness to treat with Mr. McConnell for an occupation of the Sixola valley lands and Port Gado- can pro tempore, but Mr. McConnell declined his proposals. In this I think Mr. Astua is correct, Mr. McConnell decHning for the reason that he expected to be asked for a money consideration, and because Mr. Pacheco 87 lias already admitted, as stated by Attorney Coxe, that the Sixola country would ultimately be given up to Panama. One point that Mr. Coxe presents as important to his contention is, in my opinion, of no value. I refer to the clearance of the steamship "Orn" for Port Gadocan by Panama officials at Bocas del Toro. A maritime clearance has no value as proving sovereignty of the port for which a ship is cleared. It is not contended that, when the Collector of the Port of New York grants a clearance for Liverpool, the latter port is under American jurisdiction. The document merely permits the "Orn" to "clear" and "weigh anchor" for Port Gadocan. The same clearance would have been granted for Limon, Costa Rica, if requested. No pretence is found in the clearance that Gadocan is under Panama jurisdiction, and there is no pretence of permission to discharge cargo there. Consequently, the action of the supreme Government of Panama in approving the two hundred dollar fine against Bolder & Co. for bringing a Syrian from the temporarily Costa- Rican port of Gadocan is not contradicted by the clearance from Bocas •del Toro by Panama officials of a ship bound to the same port. I have no idea that the Costa Rican Government now intends to impede the work of Mr. McConnell, but a modus vivendi that will compromise its position in connection with any indemnity claim will naturally be de- clined. I shall be pleased to do anything in my power to place Mr. McConnell and associates in a position to prosecute their work in the Sixola Valley without obstruction from Costa Rica. If Mr. McConnell thinks a modus vivendi important after the boundary treaty with Panama has been signed, specifying therein the location of his present operations, I have no doubt it can now be arranged unless it be connected -nath a claim for indemnity. It is proper in discussing this question to inform the Department that prior to the commencement of work by Mr. McConnell at Sixola, and while it was expected that valley would remain under Costa Rica jurisdiction, a "denouncement" or presumption of practically the same lands was made by Costa-Rica citizens which was subsequently sold to American citizens .for $16,000. It is not certain that the subsequent legal obhgations con- nected therewith (in regard to planting, etc.) have been fully comphed Avith, but it may now happen that, when Mr. McConnell applies at Panama for ■concession of these lands, he may be confronted by a demand for recognition of such prior rights as were acquired under Costa Rica jm-isdiction. Mr. McConnell is aware of this, and has said to me that he does not attach much importance thereto, considering the denouncement forfeited by failure to fully comply -Rith the law authorizing it. I allude to this as indicating the risk he assiuned in locating his work upon territory of doubtful title, both as to sovereignty and private ownership. With assurances of my highest consideration, I beg to remain, Sir, Your most obedient servant, William Lawkence Meeet, American Minister^ No. 1018. Legation of the United States op America^ San .Jose, Costa Rica, March 9th, 1095. To THE Honorable Francis B. Loomis, Acting Secretary of State, Washington, D.C. : Sir, — I have the honor to forward herewith the following explanatory enclosures: (copies) No. 1, February 23d, and No. 2, March 8th, Min- ister Merry to Minister Astua; No. 3, cablegram from you dated March 6th, and my reply of March 7th, aU alluding to the McConneU case. With assurances of my highest consideration I beg to remain. Sir, Your most obedient servant, William Lawrence Merry, American Minister^ Three Enclosures: Minister Merry to Minister Astua. Minister Merry to Minister Astiia. Copies Cablegrams from Hon. Acting Secretary Loomis and reply. No. 1018. [Enclosure No. 1.] No. 234. February 23d, 1905, To His Excellency Senor Don Jose Astija Aguilar, Minister of Foreign Relations, etc., etc.. Republic of Costa Rica, San Jose. Esteemed Sir, — I have the honor to forward herewith informally, for the information of Your Excellency's Government, a copy of the com- plaint of Mr. PI. L. McConnell, a citizen of the United States, relating to alleged damages inflicted upon himself and associates by reason of the action of Your Excellency's Government at Port Gadocan and in the Sixola valley. The Department of State does not now undertake to pass upon the merits of the question presented by Mr. McConnell in the Memorial en- closed, but v,'ill be gratified if a modus vivendi can be arranged between Your Excellency's Government and the said McConnell and associates which wiU prevent avoidable losses for the time being. The Department of State does not undertake to interfere in the boundary question between Costa Rica and Panama Governments, and any equitable agreement thus made would be without prejudice to the rights of either of the par- ties interested. The Government of the United States is not making any intervention in this matter, reserving the subject for further consideration, should that become necessary. But if a modus vivendi with Mr. McConnell and his associates can be arranged as suggested, it will appreciate the courtesy and good will thereby manifested. Be pleased, Mr. Minister, to receive the assurances of my most distin- guished consideration, and permit me to subscribe myself Your Excel- lency's Most obedient servant, William Lawrence Merry. No. 1018. [Copies of Cablegrams. Enclosure No. 3.] Hon. Secretary Loomis to Minister Merry. Washington, March 6th, 1 905, 5 p.m. Merry, Minister, San Jos^ : Did you receive Department's instruction of February 8th last in re McConnell? What negotiations have been had? Reply by telegraph briefly. Loomis . Minister Merry to Hon. Secretary Loomis. San Jose, Costa Rica, March 7th, 1905. Sec. State, Washington: Instruction stated was received. I replied by cable and mail February ^ 90 twenty-four. Government of Costa Rica prouiised arrangement for modus Vivendi mth McConnell or agent when either arrives. Boundary treaty was signed yesterday Panama. (Code Translations.) No. 1018. [Enclosure No. 2.] No. 236. March 8th, 1905. His Excellency Senor Don Josf Astua Aguilar, Minister of Foreign Relations, Repubhc of Costa Rica, San Jose : Esteem,ed Sir, — Following my official call this a.m. at Your Excellency's office, in connection with the McConnell case, I have the honor to acknowl- edge receipt of your note inviting my personal visit at one o'clock to- morrow, which I accept -with, pleasure. Whatever may have been the status of the McConneU claim vs. Your Excellency's Government heretofore, the signing of the Panama boun- dary treaty on the 6th inst. has, in my judgment, entirelj^ changed it, indicating the advisability of prompt action to avoid useless and serious responsibihty. Mr. McConnell should, it appears to me, be at once ad- vised to hereafter address himself to the Panama Government when dis- cussing his position at Gadocan and the lower Sixola valley. It appears only an act of justice to himself and associates that Yom' Excellency's Government shall promptly permit him to proceed -ndth his work, subject to the control of the Panama Government, for which the territory is tem- porarily occupied in trust by Your Excellency's Govermnent, until the treaty shall be approved by the Congress of Costa Rica and that of Pan- ama. This course appears not onlj^ equitable, but will avoid reclama- tion for damages which must otherwise follow. For this reason I have respectfully suggested that I may be permitted to telegraph my Govermnent that, "the boundary treaty being signed, the Government of Costa Rica no longer opposes or obstructs the work of Mr. McConneU and associates at Gadocan and Sixola valley." Assuring Your Excellency that my action is induced by my desire to avoid future contention, I have the honor to subscribe myself, with most distinguished consideration, Your Excellency's most obedient servant, • William Lawrence Merry. 91 Legacion de Costa Rica Washixgtox, May 25, 1905. Personal. Hon. Willlui L. Pexfield, Solicitor, Department of State : My dear Sir, — I have the honor to send you enclosed herein, as promised, a copy of a translation into English prepared at this Legation, of the appli- cation presented to mj' Government by ilr. Herbert Lee McConnell, April 3, 1905, in relation to which I wiH have the pleasure to call on you, if con- venient, Saturday, the day after to-morrow in the forenoon. Verjr sincerely yours, J. B. Calvo. [Translation.] To THE HoXOU-iBLE THE SeCKETAET OF StATE, Departments of Foreign Affairs : I, Herbert Lee McConnell Scott, promoter, a citizen of the LMted States of America and a resident of the City of MobUe, Alabama, tempo- rarily residing in the City of Washington, District of Columbia, being of lawfvil age and vmmarried, hereby respectfully state as follows: — For a number of years I have been engaged in the business of growing bananas in the neighboring Repubhc of Panama, and in ^-iew of the deci- sion rendered by President Loubet in regard to the boundaries between the two States, and it also being imiversaUj- known in Panama that in accord- ance mth said decision the valley of Sixaola belongs to said Repubhc, I commenced, in conformity -nith the laws of that Repubhc, to plant on both banks of the river and near its mouth. I should also state that in those uncultivated regions I saw no indications whatever that the Govern- ment of Costa Rica was not in accord ■nith the interpretation of the decision as understood in the neighboiing Repubhc as well as other countries. Fur- thermore, the Government of Costa Rica did not advise me as to its atti- tude respecting those lands untU my agricultural works had attained a great development, and my object in stating these facts is to demonstrate the good faith with which I began tilling on the left bank of the Sixaola River, and why I endeavored to use the port of Gandoca for my works. Kno'ning the spirit of justice and equity which pervades the pohcy of your Government, I trust that I may be protected in the possession of said lands heretofore cultivated by me, and therefore beg leave to present to the high 92 consideration of tlie President of the Republic and through the worthy- channel of your office the following articles of agreement: — 1. Mr. McConnell shall have the right to cultivate and work one mile on the left bank of the Sixaola River, beginning at its mouth and extending to its confluence with the Uren River. 2. If Costa Rica, by diplomatic agreement, should transfer at any time to the Republic of Panama the said one mile and adjacent lands up to Gandoca, McComiell shall not have the right to make any claim against the Government of Costa Rica by virtue of this contract, provided, however, that said possession should not be respected by the Government of Panama. 3. Mr. McConnell shall furthermore have the right to establish a railroad line from his plantations to the port of Gandoca; and he shall also have the right to export his products through said harbor and to import through the same place whatever shall be necessary for his works and private use, as well as for liis employees or workmen; and the custom duties on impor- tations and exportations, including those of sliips, shall be the ordinary duties of this RepubUc. 4. All of the merchandise and articles belonging to Mr. McConnell which Avere attached in Gandoca by the Government of Costa Rica shall be re- turned to the owner thereof. Mr. McConnell shall have the right to land and float all rails, cars, and other materials for the construction of the railroad. He shall furthermore have the right to land in Gandoca all of the materials of the said kind that the authorities of Costa Rica did not allow to be landed and which materials are deposited at the present time in Bocas del Drago. 5. All the railroad materials, rolhng-stock, inclusive, as well as the ma- terials for the construction of wharves and buildings annexed to the rail- road and wharves, which may belong to Mr. McCoimell, shall enter at any time free of any duties. 6. Mr. Coimell shall have the right to construct at the port of Gandoca wharves, piers, and such other convenient works as may be necessary to facilitate the mooring of the ships wliich may arrive at that port. 7. Mr. McConnell shall give to the public service his railway Une under the same tariff conditions wliich are now in force regarding the Railroad of Costa Rica. Besides, he shall also give to the public service his pier or piers, wharf or wharves, charging therefor a fair and reasonable rate. 8. As soon as the railroad Une for the service of Mr. McCoimell's plan- tations shall be completed to the mouth of the Uren, Mr. McConnell binds himself to construct railroad branches to such places in which he may find 93 -owners of plantations who can assure him a traffic of not less than 75,000 bunches of bananas per year for each new railroad niile that he may con- struct; but -ndth the understanding that Mr. McConnell shall not be obliged to construct any longer extension than eight kilometers each year, and he shaU not be obhged to construct branches, the cost of which may exceed 25,000 colones per mile (1,609 meters, 31 centimeters). Should he con- struct more than eight kilometers a year, the excess shall be credited to his obligation in the following year. Mr. McConnell shall have the right, however, should he deem it convenient, to construct branches freely and in any direction whatever. It seems to me that the proposed arrangement would open to the com- mercial Ufe of tliis Republic all that vast territory of Talamanca. The Government would increase its revenues with all the fiscal taxes upon consumption, not only from the towns that may be formed on tliis side of the Sixaola River, but also from these already existing, or that maj^ be built on the other bank of the river. Talamanca requires an enterprise ■on a large scale to serve as a centre for the development of other small concerns; i.e., a railroad system and such works at the port of Gandoca as may seem useful both to the international and coastmse traffic. All this may be obtained and made possible by the terms of the contract which I have the honor to submit to the Government. Awaiting a reply, I remain, Yours very truly, (Signed) H. L. McConnell. San Jose, .\pril 3rd, 1905. San Jose, April 12, 1905. Mr. Herbert Lee McConnell Scott, Present. This Department acknowledges receipt of your communication of the 3rd instant addressed to mj^ Government, in which you explain the reason and manner by which you hold possession res nullius of quite a large tract of land belonging to this Republic and situated on the margin of a river marldng the southern boundary of this country towards the Atlantic, and submitting that in \iew of the justice of yom- argument this Government should grant you several concessions of extraordinary importance. In your communication you state that for several years you have carried on the business of banana raising in Panama, and believing that aU of the valley of Sixaola belonged to Panama, as was understood from the award 94 of President Loubet, as well as by the public opinion in the Isthmus, you not only carried on the work on the right bank of the river, which is the territory of Panama, but also on the left bank of said river, which is well known to have been always Costa-Rican territory and is so at present by virtue of the uti possidetis estabhshed between the two nations and in force from time immemorial, and so recognized by both nations. In setting forth the above inexplicable error, which you could have easily avoided by a diligent study of the true state of the matter, you pre- sume to estabhsh that you were acting in good faith when you took pos- session de facto, without a title or even a hcense from this Government, of lands belonging to Costa Paca, — that is to say, assimiing an unlawful occu- pancy amounting to a trespass against said sovereignty, not only in what refers to the unlawful appropriation of the land, but also in what refers to the importation of merchandise as carried on by you in Gandoca, a port not open by our foreign customs regulations ; and, furthermore, you add that my Government itself kept you in said belief by reason of not having informed you of its attitude regarding those regions before you had made a. great development in your enterprise, and because when you took possession of said land you saw no indication by which you could make out that this Repubhc was not in accord with the interpretation, which, as you say, was given in Panama respecting said award. Against the above insufficient argmnents adduced by you in order to justify the fact of your possession and advantage of said lands acquired by no legal means, for which there was no excuse, unless we set aside the most elementary principle of pubhc law, I find myself compelled to state to you, firstly, that not only by the Department of Foreign Affairs of Colombia before the secession of the Isthmus, but also by the Panama Government since its independence which gave to Panama international status, the river Sixaola has been considered as the boimdary on the Atlantic coast of both Republics, even after the award of the President of France, which award gave solely the general data for a demarcation of boundaries not yet carried into effect, evidenced by the resolution of the Secretary of the State of Panama, No. 28, dated on the 2nd day of August, 1904, against Mr. Adolfo Bolder, who tried to estabhsh for his own benefit that the ter- ritory of Gandoca belonged to said Repubhc. Said resolution was pubhshed in the Official Gazette of the 23rd of the above-mentioned months and reads as follows: — 95 No. 969 Copy of the Executive Resolution of the Government of the Republic of Panama, published in the Official Gazette of that Republic, Year One, No. 47, Second Term. Resolution No. 28, Republic of Panama: National Executive Power, Secretaryship of Government and Foreign Relations, No. 28, Panama, August 2, 1904. By the resolution of June 10th of the current year the Alcalde of Bocas del Toro imposed a fine of two hundred "pesos" ($200) upon the firm of Adolf Bolder & Co. for ha\dng carried in one of their vessels to that town a Syrian proceeding from the Republic of Costa Rica, — a decision which the Provincial Governor confirmed. As the said firm has not con- formed itself to this decision, it now requests revision by the Executive Power. As appears by the procedure instituted to impose the fine alluded to, and by the evidence given by the respective Governor, the Syrian, ■John George, embarked on the launch "Mazini," the property of Messrs. Adolf o Bolder & Co., at the place called Gandok in (Gadocan) situated between the mouth of the river Sixola and Point Mona. Although by the arbitral award made by the President of the French RepubUc, Gandokin forms part of the Panama territory, this award has not been executed yet, and, while this is the case, the Government of this Republic does not exercise jurisdiction at that place, because situated within the limits of the disputed territory which originated the arbitra- tion, and because the "statu quo" thus demands. In this manner the Costa Rican Government is the actual possessor of the place in reference, in the same way as that of Panama is the actual possessor of part of the Costa Rican territory on the Pacific. The execution of the award will give to each sovereign the possession of the territory which belongs to it, and the "statu quo" will then terminate, but meanwhile such is not the case. Gandokin uill remain under the ]urisdictionol action of Costa Rica, and, as it was at that place where George embarked with destination to the jurisdictional territory of Panama, it is clear that Messrs. Bolder & Co. have violated the law which prohibits Chinese, Turkish, and Syrian immi- gration, and the decree which regulates it, reason for which the decision under examination is correct, and it is thus declared. Register, Communi- cate, and Publish. The Secretary. Tom AS Aeias (signed), (Secretary of State, etc.) 96 It seems that Mr. Bolder has been a partner or a representative of the- aforesaid banana corporation, and such fact gives me sufficient ground for calhng yoiu- attention to the other fact; viz., that, inasmuch as the Govern- ment of Panama, the only party entitled to make declarations worthj' of attention in this respect and of informing you thereof, has never been considered to have dominion upon the left bank of the Sixaola River, your want of information upon the same subject is rather astonishing. Therefore, if you committed the mistake of depending upon popular ru- mors, uttered without knowledge of the facts and without authenticity, instead of applying to an official source to ascertain the said boundary,, it is absolutely unjust and unreasonable to shift the burden of such care- lessness upon the Government of Costa Rica. I fail to understand what material eAddence of the sovereignty of my nation you were looking for and trying to discover in the forestal zone and in other untilled lands which you have attempted to appropriate to your- self, since the boundaries of a State are established by virtue of its political, constitution and by virtue of international agreements, it being absurd to allege that countries lose their jurisdiction over such portions of their territory as are not designated by monuments, landmarks, or other par- ticular designations; in other words, that each country should build a wall on its boundaries or keep its contour within an uninterrupted cordoa of official authorities who would proclaim its nationality to those who- entertained any doubt thereabouts. In the second place, I deem it necessary to affirm that a State need not serve notice as to its sovereignty upon each individual in order to fully exercise such sovereignty, and it need not exercise ostensible acts of pos- session over every foot of its territory in order that its rights may be main- tained or that it may have the power to eject any trespasser therefrom in case of illegal occupancy, such being your case; and it is clear that, accepting the theory invoked by yoii in yoiu- communication, the integrity of all the nations of the world, even those of great populations and well defended, would be in danger. Finally, allow me to observe that my Government could not make known to you its attitude of defence of the Costa-Rican territory — an attitude which you might have kept constantly in mind as evidencing the highest characteristic of the nationality— because you acted rathout giving notice of yoin- actions and intentions to the PubHc Administration; and it was reasonable to believe that the Costa-Rican officers would ignore your works in the forest of Sixaola, which works are situated a great distance from the- 97 centre of Government, until the enterprise itself produced something ■worthy of calling attention to such places, such as the maritime traffic in Gandoka and the tramway construction which you undertook on the coast ; and it is well known to you that since that time our Goverrmient has not, in any respect, failed to exercise its authority there by enforcing such acts of jurisdiction and vigilance as belonged to it. You take this opportunity of requesting in due form, for the first time, a concession for your enterprise; and, although it is true that this matter has been heretofore considered by this Secretary, you only promised to make offers, but such offers were not, in fact, made until the present time. The foregoing arguments having been set forth as an answer to the first part of your conmiunication, I proceed now to consider the different clauses of the agreement which you propose and to state generally all of the re- quirements and conditions upon which my Government would be willing to enter into an agreement with you, in accordance with the laws now in force respecting State lands and the regulations of Customs and Harbors. You ask for the right to cultivate and work a mile on the left bank of the Sixaola River from its mouth to its confluence \vith the Uren River, — that is to say, a large tract of land, embracing the greatest and best part of Talamanca, including that region of the zone which would still belong to Costa Rica in case the treaty of boundaries, Guardia-Pacheco, be approved; the opening of the harbor of Gandoca, — that is to say, the establishment of a custom-house, which will involve a great expenditure for buildings, officers, etc., just for the service of your plantations, because there are not actually in that zone, nor will there be for a long time, mercantile or agri- cultural interests which would support or justify such a measure; a railroad and wharf grant wMch would for the present benefit you alone; and un- qualified remission regarding the confiscation imposed upon the goods landed at Gandoca in spite of the fiscal laws; and, finally, exemption from all duties upon materials for the railroad, wharves, and buildings belonging to said enterprise. You ask for all this without offering any compensation in return for such valuable grant, in which the State, besides giving you all the exploitable part of the Sixaola valley to the very heart of Talamanca, containing many thousand hectares, and leaving closed all communication with the rest of that region with its water-way, which would render impossible the culti- vation of that zone. All that would give to you very profitable privileges which are not supported by any reason whatever. In the interview which you had with the undersigned Secretary you had 98 an opportunity to become acquainted \\dth the good will of tiie President of the Republic in regard to your petition, which good will is inspired by the justice and conamon interest of both parties, in accordance mth our fiscal organization and the respect due to national sovereignty, and I have the honor to assure you now of the benevolent attitude of the President, declar- ing at the same time that the basis of your Memorial is unacceptable, because we can neither do an act of hlaerality mth such enormous territory nor allow maritime traffic to be conducted in Gandoca because it is not a port open by the law, nor proceed to the establishment of a custom-house there for the sole benefit of your enterprise, because the grant and custom con- cessions for which you ask do not insure any benefit to the State. In confirmation of the good will wliich I have heretofore expressed, I have the honor to advise you that this office is now ready and wilhng to come to a satisfactory understanding -Hith you by means of an agreement to be entered into ad referendum in accordance with the following terms, and subject furthermore to the approval of the Congress of the Republic: First. The Government of Costa Rica should grant to you a lease for twenty-five (25) years, respecting, however, the rights of third parties, of that portion of the State lands extending along the left bank of the Sixaola River, beginning at its mouth and embracing two thousand hectares, in consideration of an annuity. Second. The aforesaid area should be measured at the expense of the enterprise into lots of five hundred (500) hectares, respecting, as stated iDefore, the better rights of tliird parties, and leaving between lot and lot a free area of not less than a half of said portion, which should belong to the State. Third. The Government should have the right to rescind de facto the lease as to those portions of the lands which shall not have been cultivated^ ■within a period of six (6) years, or in the case of plantations which shall have been abandoned for a period of five (5) consecutive years. Fourth. At the expiration of the term of the lease all of the lands should revert to the pubUc domain, and the works, buildings, and improvements constructed thereon should become the property of the Pubhc Treasury, Avithout any indemnification whatever on the part of the Government. Fifth. You should redeem the goods wliich were confiscated by the authorities by paying the regiilarly prescribed charges according to the customs tariff then in force, but you could not exercise the right of navi- gating the waters of the Port of Gandoca until said port had been duly opened by the law of the Republic. 99 Sixth. A condition for the opening of said harbor should be that you pay all necessary expenses for the erection of the buildings required there for the exclusive use of the government officers, including more especially the offices for the Mayor, PoUce Station, and Custom House, and the salaries of said officials. You should deliver the necessary sums of money for the construction in a proper manner of said buildings and furnishing same in a suitable manner. Seventh. The annual salaries of the employees and the rentals shall be fixed by mutual agreement. Eighth. The harbor being thus opened, the railroad and wharf materials should pay one-half of the charges prescribed by the customs tariff. Ninth. During the period of the franchises granted to the other banana enterprises the exportation of bananas from your plantation should not be subject to duties. Tenth. The said lease, as well as all other additional covenants con- tained in this agreement, should be rescinded and rendered null and void from the date of the approval of the Guardia-Pacheco boundary treaty, which was signed at Panama by the respective Plenipotentiaries on the 6th of March ultimo, regarding the zone that, according to the demarcation of boundaries, should pass to the jurisdiction of Panama, it being under- stood that in the event of a rescission the Government shall not be hable in any maimer Avhatever. This office considers that the approval of an agreement upon this basis, which is submitted for your perusal as a project which ought to result favorably to you and an indication of the friendly manner of arranging this business without requiring you to answer for the trespass you have already committed, is a benevolent action on the part of my Government which I hope you will fully appreciate. Yours very truly, (Signed) Jose Astua Aguilar. No. 1037 Legation of the United States of America, San Jose, Costa Rica, April 23, 1905. To THE Honorable Francis. B. Loomis, Acting Secretary of State, Washington, D.C.: Sir, — I have the honor to advise that Mr. H. L. McConnell, of Mobile, 100 Alabama, with Mr. 0. F. Bolder, his Agent at Gadocan and Sixola, arrived here on 30th ult. to arrange, if possible, a modus vivendi with the Govern- ment of Costa Rica by which he can prosecute his work of planting in that section pending the approval of the treaty between Panama and Costa Rica by which that section is to become the territory of the former. On his arrival, after consultation with me, he arranged with his former attorney, Mr. Ricardo Jimenez, one of the best lawyers in the country, to present his case. On their first interview with Mr. Astua, Minister of Foreign Relations, he was requested to present his proposition to the Government. When this was submitted, Mr. Astua decUned it and jhanded him a contract for a term of twelve years under such conditions that Mr. Jimenez recommended its rejection. I do not forward copy and translation of this rejected con- tract for the reason that it is a voluminous document and its examination wiU not interest you or throw light upon the question. I was then called to take action in the matter as explained in enclosures herewith: Enclosure No. 1. translation and copy of note from Senor Carlos Lara, Sub-Secretary of Foreign Affairs, addressed to me, accompanying the proposal of the Government; Enclosure No. 2, copy of my reply thereto, joining with Mr. McComiell in its rejection, and stating my reasons therefor, also enclosing a memorandum of a modus vivendi the terms of which were arranged by Mr. Jimenez and myself, fulfilUng, in my judgment, the equitable requirements of the case. The government offices having been closed since the 20th inst. to open Monday, 24th iilst., I have not been able to see Mr. Astua and have not received a reply from the Foreign Office, but shall renew my efforts to-morrow to arrive at a mutually satisfactory result, of which I have some hope, provided the interests of third parties claiming a pre-emption or " denouacement " title from the Costa-Rican Government do not interfere. Even if without merit, a contest involving prior acquired title might possibly take the case into the Courts of Costa Rica, and prevent further action on my part at the present time. However, this is a possible contingency that we have not yet reached, and I shall spare no effort to so arrange the matter that Mr. McConneU may go on \vith his work without prejudice to other interests until the treaty has been approved or rejected by the Congress of Costa Rica and that of Panama. I hope that I shall be able to write you definitely and satisfactorily by the end of this week, and will, in any event, report the result of my next interview with the Minister of Foreign Relations, on which occasion I shall be accompanied by Mr. McConneU and Mr. Bolder as Ms interpreter and agent at Sixola. 101 With assurances of my highest consideration, I beg to remain, Sir, Your most obedient servant, William Lawbence Merry, American Minister. Enclosures : 1. Note Sub-Sec'y to Mr. Merry. 2. Mr. Merry to Minister Astua. 3. Modus Vivendi from McConiiell. No. 1037. / y [Translation. Enclosure No. 1.] San .Jose, 15th of April, 1905. Secretary of Foreign Relations: Most Excellent Sir, — I have the honor to send Your Excellency for your information the accompanying copies of the "WTiting presented to this Secretaryship by Mr. Herbert L. McConnell Scott, citizen of the United States of America, and the reply given by the Secretaryship of Fomento to the showing and solicitation of Mr. McConnell regarding concessions for the exploitation of the lands on the left bank of the river Sixola. I am confident that Your Excellency, with your clear and correct judgment will see in these documents the spirit of friendly deference which animates my Government in the matter of Mr. McConnell. I avail of this oppor- tunity to reiterate to Your Excellency the assurances of my most dis- tinguished consideration. For the Mr. Minister The Sub-Secretary (s.) Carlos Lara. To His Excellency Mr. William Lawrence Merry, Minister Plenipotentiary of the United States of America. No. 1037. (Enclosure No. 2.) American Legation, San Jose, Costa Rica, April 18, 1905. To His Excellency Senor Dr. Don Jose Astua Aguilar, Minister of Foreign Relations, etc., etc., Republic of Costa Rica, San Jose : Esteemed Sir, — I have the honor to aclaiowledge receipt of Your Ex- 102 cellency's note of 15th inst., enclosing copy of a concession proposed by your honorable Government for the acceptance of McConnell et al., as appUcable to lands at Port Gadocan and in the lower Sixola Valley, where he has already expended a considerable amount of money in cultivation and improvements. After carefully reading the proposed concession, it seems to me prob- ably applicable to a long occupation of government pubHc lands mth ascertained title and permanent sovereignty. But it cannot, in any proper conception, be considered a modus vivendi,. which is all that I am instructed by my Government to obtain for Mr. McConnell ei al., and it appears to me all that he can accept under th& doubtful conditions of title and sovereignty above alluded to. I may be permitted also with entire good will and courtesy to Your Excellency's honorable Government to suggest that the proposed concession might become a serious detriment to the Treaty of Limits with the Repubhc of Panama, the signing of which has sincerely gratified the United States Government, and now awaits ratification. For while Your Excellency aims to proAade against this by terminating all rights granted to McConnell, etc., should the ratified treaty place the territory within the jurisdiction of Panama, the fact remains that Your Excellency proposes to grant him specified rights for which he is to incur serious financial responsibiUty on a territory which Your Excellency's Government has agreed, by a treaty signed and only awaiting ratification, to transfer ownership from Costa Rica to Panama. Your Excellency will pardon this allusion which is properly not within the precise limits of my official action, and presented only because my Government will sincerely regret that my action endan- gers the approval of a treaty so valuable to both Repubhcs, for which it entertains only sentiments of friendly appreciation and esteem. An extended discussion of the conditions set forth in a document which is, in my judgment, inapplicable to the situation, seems unnecessary,, especially as Mr. McConnell, under very competent legal advice, deems it necessary to decline acceptance, and has presented me with a copy of a simple viodus vivendi such as I have been instructed to soUcit in his behalf, and for which, under suggestion made by Your Excellency, he now visits this capital. A careful examination thereof impresses me with its fair- ness to both parties in interest, with such minor modifications as may possibly suggest themselves to Your Excellency's just and clear discern- ment. It is evident that the Government of Costa Rica cannot be equit- ably taxed with any fiiiancial responsibihty by reason of the modus vivendi 103 which Mr. McConnell desires: this he must provide for -within the limits of equity. And he has no right to ask any other privilege than that of continuing the development wliich mil certainlj^ increase the value of the lands he occupies, always subject to the sovereignty and laws of the Gov- ernment that vnR have ultimate jurisdiction. But I beg to suggest to Your Excellency's discernment that Mr. McConneU can only accept a modus Vivendi which -ndU enable him to prosecute his work until the ulti- mate sovereignty of the territory is decided, after wliich he must treat with the Government that acquires jurisdiction, for a more permanent occupation through mutual approval or failm-e of the treaty of limits. I have the honor to enclose herewith the proposed modus vivendi suggested by Mr. McConnell for the consideration of Your Excellency, and subject to such amendments as may be mutually agreeable. Be pleased, Mr. Minister, to receive the assurances of my most distin- guished consideration, and permit me to subscribe myself Your ExceUency's Most obedient servant, William Lawrexce Merry, American Minister, No. 1037. [Translation. Enclosure No. 3.] Mr. H. L. McConnell to Minister of Foreign Relations, etc., etc., of Costa Rica. To the Honorable Secretary of State in the Department of Fomento (Also ilinister of Foreign Relations) : Sir, — (Matter of H. L. McConnell in reference to lands on the Sixola). In reply to your communication which you were pleased to address to me on the 12th of the present month, I have the honor to make the follow- ing statements: — I am pained to see that my conduct in beginning and continuing work on the left bank of the Sixola has been considered by your Govermnent as a violation and disregard of the rights of the Republic. The points of view from which your Government and myself regard the facts are so op- posed that it is believed a discussion of the subject will lead to no result acceptable to both parties. That consideration and the fact that I came to Costa Rica under the impression, which I stiU entertain, that your Gov- ernment was disposed to agree with me on an equitable modus vivendi, 104 cuts me off, since it is unnecessary, from any discussion as to my rights from an international point of view or as to whether the fact of not having before arrived at a satisfactory arrangement is my fault or that of the Government. Coming now to the proposition which you are pleased to make me, I am not disposed to accept it, because it does not constitute a modus vivendi. Our difficulty depends essentially on the precarious situation, for the Gov- ernment at all events, in which the lands occupied by me have been and will be while the fate of the treaty as to boundaries with Panama is unde- cided. As is inferred from the last clause of your proposition, the ratifica- tion of this treaty will leave an uncertainty as to the valley of the Sixola. Our arrangement must be based on that uncertainty, and the question ought not to be considered the same as if the Government of Costa Rica could guarantee me for a long period of time the existence of the rights which it offers to concede me. The matter of ray having to pay during twelve years all the expenses of the public administration in Talamanca and of having to deliver the buildings, railways, plantations, and other improvements to the Govermnent of Costa Rica at the end of the term of lease, besides imposing on me burdens out of proportion to my enterprise, does not take account of the probabihty that very soon the whole, or the greater part, of these lands are to be delivered to Panama, and is not in accordance with the brevity of a modus vivendi, but rather with the idea of a concession assured and of long duration. On the other hand, I understand that if at present the port of Gandoca would not be opened except on account of my enterprise, it seems to me also that within a short time, whether my enterprise were in existence or not, the force of circumstances would obhge the Government of Costa Rica to promote the development of Talamanca or to take note of the sponta- neous development which will take place there; and they will be forced to open the port and to organize and maintain all the public services which good government demands. I do not, therefore, see the justice in my having to take upon my shoulders during twelve years the whole burden of the public expenses in Talamanca. The equity of the case, all that I ask, is that for the present, and while the uncertain position in which Costa Rica and Panama find themselves by reason of their treaty is being reme- died, I bear the purely fiscal expenses wliich my importations and ex- portations through Gandoca demand. Always provided that these expenses do not exceed five hundred colones per month, more or less, I am ready to defray them. 105 As the first clause of j'our proposition reads, it leaves my rights com- pletely in the air. You know, because I had the honor to speak to j'ou about it, that Mr. Keith and others have under way proceedings of de- nouncement of the lands which I occupy, and as matters are going, if the Government does not remedy it in time, it will not be long before title to the lands ■v\t11 be given to these gentlemen, not'n'ithstanding that the denouncement ^^olates the laws of the RepubHc in two respects. Th? laws of Costa Rica declare a denouncement null and void the proceedings of which have been abandoned for six mo^ths. The said denouncement was inactive for about three j'ears and a half, and not-Rithstanding this, and the fact that I had begun m}^ plantations in April, 1903, the denouncers continued their proceedings in Ma}% 1904, as though their rights had not lapsed. On the other hand, the Fiscal Code prohibits the denouncement of lands adjacent, for the ■nidth of one mile, to na\'igable rivers; and, nev- ertheless, Mr. Keith has confined his measm'ements to the said mile. The "Promoter Fiscal," if he had ■fished, could have rendered the claim of Mr. Keith void; but, as he did not ■nish to oppose Mr. Keith and liis com- panions, notwithstanding I pointed out these defects before the judge, he approves all that has been done in the denouncement proceedings. Assuredly, the Government, no-K' that they are ad\'ised through me of what has happened, will put matters right. Its intei'vention is indispensable and urgent. Without it, on* the other hand, the lease which the Secretary of State offers me would be, in reahty, iUusorj^, due to the action of the agents of the Government, and ■without my being able, bj' ■\'irtue of the contract wliich you propose to me, to make anj^ claim. With the idea of a vxodus rirendi 1 propose the following: 1st. The Government of Costa Rica concedes to McConnell permission to continue his work at the port of Gandoca and in the lower part of the valley of the Sixola, imtU the ratification or failure of ratification of the treaty of boundaries with Panama. This authorization includes the right to con- struct a railway or tramway from any point on the lands cultivated or which McConnell may cultivate to the port of Gandoca, and to build a pier at that port and to occupy the land necessary for a station, warehouses, offices, dweUing-house, etc. 2nd. McConnell vnil recognize the sovereignty of Costa Rica pending the ratification of said treatj^ and will obey the laws of the RepubHc in those places. 3d. The port of Gandoca shall be opened to international commerce and coasting trade within the period of two months. McConnell will pay 106 the necessary expenses which the Government of Costa Rica ma}' incur in consequence of the said concession and permission, including the custom- / house expenses and of the employees of the Government in Gandoca, which may be necessary by virtue of the occupation of McConnell, always pro- vided they do not exceed five hundred colones per month. However, ]\IcConnell will construct the buildings necessary for the offices and ware- house of the Government of Gandoca, required by virtue of this agreement. McConnell will pay the duties of importation and exportation in force in the Republic. The material for the railway or tramway, pier, and for the custom-house buildings and said offices of the Govermnent, shall be ad- mitted free. Vessels consigned to McConnell shall be exempt from port dues. 4th. McConnell shall at once have the right to recover the embargoed merchandise, to disembark the cargo which is now at Bocas del Drago in consequence of the opposition which the Costa-Rican authorities made to its disembarkation, and shall also have the right to raise and disembark the merchandise now sunk in the port of Gandoca, and he shall pay the customs duties according to the stipulation in the foregoing clause (3d) . 5th. As McConnell has also plantations of bananas on the right bank of the Sixola, the Government will place no obstacle in the way of the free conveyance of the products of the right bank across the river Sixola; and of the conveyance to the same (right) bank from the left bank of IDrovisions, tools, utensils, etc., necessary for the works or the necessities of the people employed by McConnell on his plantations. 6th. The Government of Costa Rica binds itself to oppose the denounce- ments under way or which may be made, which include the mile on the margin of the river on which the plantations of McConnell are situated or the maritime mile between Gandoca and the Sixola, these denouncements being inadmissible under the laws of Costa Rica; and this without preju- dice of the rights of McConnell to oppose such denouncements by virtue ■of the present contract. With all consideration I subscribe myself Your very respectful servant, (Sig.) H. L. McConnell. (Sig.) RicARDO Jimenez, Attorney. -San Jose, April 17, 1905. 107 No. 638. Depart-Mext of State, Washington, May 12, 1905. William L. Meret, Esquire, etc., etc., etc., San Jose : Sir, — I have to acknowledge the receipt of your despatch Xo. 1037 of the 23rd ultimo, reporting that :\Ir. H. L. McConnell, with ilr. 0. F. Bolder, his agent at Gadocan and Sixola, arrived in San Jose on March 30 for the purpose of arranging, if possible, a modus vivendi with the Government of Costa Rica, by which he can prosecute his work of plant- ing in that section pending the approval of the treaty between Panama and Costa Rica, whereby said section is to become the territory of Panama. You also report the negotiations that took place between Mr. McConnell and the Costa-Rican Government since his arrival, and your efforts in his behalf. Inasmuch as your despatch fails to enclose a copy of the modus vivendi proposed by the Costa-Rican Government, the Department is unable to form any opinion on the question whether it could not be properly considered a modus vivendi, as stated in your note to Mr. Astua under date of Apiil 18 last. On the other hand, ^Ir. ^IcConnell's proposal, contained in enclosure No. 3 of your despatch, appears in some particu- lars to exceed the requirements of a modus vivendi, as, for example, clause No. 6, which reciuires the Costa-Rican Government to oppose the denounce- ments mentioned, on the alleged ground that they are inadmissible under the laws of Costa Rica. The Department does not wish that there be any misconception o f its attitude in favor of a modus vivendi, which is, that it shall not interfere ■with or prejudice the rights of third parties. All conflicting claims of title are, at last, proper matters for the determination of the courts. The object of the modus vivendi should be to preserve the property of Mr. McConnell or of the corporation he represents, untU the boundary ques- tion shall have been settled hj the ratification of the treaty between Panama and Costa Rica, when the parties would have to resort to the courts of the State within whose jurisdiction the lands he for the hearing and de- cision of the title to the property in question. The foregoing observations are not intended in any waj^ as criticising your action, but rather to express more fully than has heretofore been done the Department's view as to the line of action you should pursue in facihtating the making of a modus vivendi between ^Ir. ilcConnell ^ 108 and the Costa-Rican Government. You will, of course, avoid giving to the Costa-Rican Government the erroneous impression that the Depart- ment is in any way committed in support of Mr. McCormell's claims, its attitude, in fact, being simply favorable to the preservation, by means of a modus vivendi, of whatever property he may have, but without preju- dice to the legal rights of the Costa-Rican Government or of third parties. I am, Sir, Your obedient servant, Francis B. Loomis, Acting Secretary. No. 1043. Legation of the United States of America, San Jose, Costa Rica, May 7, 1905. !^ V^' To THE Honorable Francis B. Loomis, 1 ^" Acting Secretary of State, Wasliington, D.C.: V" Sir, — Respectfully referring to my No. 1037 of April 23d, I beg to report that I have thus far been unable to accomplish anything at the Foreign Office here in effectually aiding Mr. McCoimell. Two days since I received from the Minister of Foreign Relations a note enclosing a formal protest from Mr. Minor C. Keith and other American and Costa-Rican citizens against the pretensions of Mr. McCormell in connection with lands in the Sixola Valley, to which they claim prior title by denouncement filed in Court, and now pending, after survey of said lands. To this I replied yesterday, requesting that this Legation be furnished with copies of de- nouncement proceedings and Mr. McConnell's protest thereon, also copy of the denouncement law and outline sketch of the lands. The protest of Keith et al. is an impediment which I apprehend may defeat any effort on my part to obtain for Mr. McComiell a modus vivendi permitting liim to go on with his work at the Sixola Valley. He labors under the evident disadvantage of having filed at the Department of State a heavy claim for damages and loss of prospective profits through the interfer- ence of the Costa-Rican Government with his operations at Sixola and Port Gadocan. TMs and the defence of Minister Calvo has been pubUshed in New York Tribune of January 15th, 1905, and probably in other newspapers, copies of wliich have reached here, and doubtless Mr. Calvo has also fuUy informed Ms Govermnent. On 3d inst. Mr. McConneU presented to the Minister of Foreign Re- lations another proposition for a fitftj^ years' concession, to which no reply 109 has been thus far made. This was done without my knowledge, although he gave me a copy thereof on 5th inst. I have the impression that it will be declined by the Government, but its presentation after I had, with the concurrence of his attorney, dechned the other concession for six years, proposed by the Govermnent, will not aid my efforts for a modus Vivendi. I forward herewith copy and translation of the protest of Minor C. Keith et al. addressed to the Government (Enclosure No. 1) and copy of Mr. Keith's letter to me dated May 4th (Enclosure No. 2), asking that the title of the Sixola lands be determined by the Costa Rica Courts, to which he and his associates have appealed. It seems now to be my duty to request, and I shall await, your additional instructions before taking further action in the case, unless meanwhile my request for a modus vivendi is conceded on conditions acceptable to Mr. Mc- •Connell. With assurances of my highest consideration, I beg to remain, Sir, Your most obedient servant, William Lawrence Merry, American Minister. Enclosures: 1. Keith's protest. 2. Keith to Merry. No. 1043. [Translation. Enclosure No. 1.] To THE Secretary of State in the Office of Public Works, National Palace : W^e, Minor C. Keith, John M. Keith, Edgar J. Hitchcock, Mariano Ouardia, David Andrew Johnston, and Fehx Echeverria, come before you and respectfully submit the following: — Relying imphcitly in the stabiht}- of the National Institutions and the protection afforded by the existing laws, we obtained, together with sev- eral other parties, the rights of denouncers to a piece of Government Land situated on the Atlantic Coast along the left bank of the Sixaola River, with the firm intention of acquiring permanent titles to the land to establish on same an agricultural company on a large scale. Pursuant with this proposition, we have pushed forward the work of no proving up the denouncement, until we now actually have the land sur- veyed and measured (which includes 6,000 hectares), and placed in such condition that it can be put up at Auction. In tliis condition of affairs we are surprised to hear that Mr. Herbert Lee McConnell has presented to the Supreme Government a petition praying for a concession to exploit certain lands in which are included ours. We must call to your attention the fact that the said Mr. McConnell has already undertaken to frustrate om- legitimate aspirations by oppos- ing our denouncement before the Court of Contencioso Administrativo. But his opposition was so uncalled for that the judge threw it out as a. whole, and ordered that the denouncement be continued as set forth in resolution which to-day cannot be attacked, as it has passed the proper authority as a thing judged. There is no doubt but what, in view of his failure before the Courts, and not being able to disturb us further in legal form, Mr. McConnell has gone to the Government, soliciting a concession which will serve as a basis to make a laughing-stock, although but for a moment (which in the case in question is of sufficient import), of that which has been definitely de- cided by the Courts and the existing laws of Costa Rica, and to violate unquestionable rights. For these reasons and upon advice of what is happening, although we do not know the details of Mr. McConnell's petitions, we must respectfully call the attention of the Supreme Government to the following : — The lands denounced by us caimot be the object of any special conces- sion, because under the protection of existing laws we have acquired,, among many others, the right to purchase them at PubUc Auction, and stand ready to make good that right at the proper moment. Further, it would be unjust to accede to the petition of Mr. McConnell, even though it were to be done reserving the rights of third parties, as that would be equivalent to placing it under such favorable conditions at the moment of auction that it would be beyond all control and to the prejudice of other bidders, more especially so to ourselves, and without the Exchequer deriving the most insignificant advantage. If the Supreme Government, for any reason, desires that the transfer or adjudication of the lands under discussion be not made under the form of denouncement, and to which they are at present subject, we have no objection, if it does not prejudice our rights, to enter into negotiations- with this object in view. We beg of you that at the time of taking under consideration the propo- Ill sition which Mr. McConnell may have made relative to this subject you ■will please bear in mind what we have herein set forth. With all due considerations, we are, dear sir, (Signed) D. A. Johnston. Felix Eoheverhia. Mariano Guardia. E. J. Hitchcock. ■San Jose, Costa Rica, April 6th, 1905. M. C. Keith, ] per John M. Keith. John M. Keith, For the presentation. RICARDO PACHECO, Attorney. No. 1043. J [Enclosure No. 2.] San Jose, Costa Rica, May 4, 1905. His Excellency the Honorable William L. Merry, Envoy Extraordinary and Minister Plenipotentiary of the United States, San Jose. Sir,— As Mr. Herbert Lee McConnell has soUcited from the Govern- ment of Costa Rica a concession of lands on the North bank of the Sixola Eiver, under the jmisdiction of this Republic, we beg to call your atten- tion to the fact that we, the undersigned, hold legal rights over a large part of these lands, dating from the 1st March, 1900, on which Mr. Mc- 'Connell and his associates have squatted. Enclosed herewith please find copy of Protest presented by us to the 'Costa Rica Government, under date of the 6th ultimo. We are informed that Mr. McConnell and his associates are supported in their pretensions by you, in your official capacity, under instructions from our Government. As American citizens, we bring this matter to your attention, feehng ■confident that it is neither the intention nor the wish of our Government to intervene in behalf of one citizen to the prejudice of the interest of 4 112 another in a matter in which the Coui'ts of this RepubHc are fully qualified to act. We have the honor to remain, Your Excellency's obedient servants, John M. Keith for self and (Sg.) Minok C. Keith. in representation of minors, John M. Keith. Emily M. Keith. Edgar J. Hitchcock. Henry A. Keith. JosALiE A. Keith. John M. Keith, Jr. (Others interested named in protest.) No. 1050. Legation of the United States of America, San Jose, Costa Rica, May 21, 1905. To THE Honorable Francis B. Loomis, Acting Secretary of State, Washington, D.C.: Sir,—1 have the honor to forward herewith (Enclosure No. 1) a conmiu- nication from Mr. John M. Keith, an American citizen resident here, rep- resenting the poUtical interests of the United Fruit Company, an American corporation, addressed to the Minister of Pubhc Works of Costa Rica, asserting that Mr. H. L. McConneU, an American citizen has violated his contract with said Company, as therein set forth, for which it has en- tered suit against him in the United States Courts. The protest of Mr. Minor C. Keith et al. against the action of Mr. McCoimeU was forwarded to you with my No. 104.3 of May 7th, and I am since informed by Mr. John M. Keith that his Company is now also preparing complaint against McConneU et al. to be presented in a Costa-Rican Court of Law with the purpose of forcing McConneU to abandon his work in the Lower Sixola VaUey. Under these circumstances, and having in view Diplomatic In- stmctions, page 67, Section 173, which distinctly state that diplomatic representatives "should take no part in Utigation between citizens," it seems to me that my ofhcial action in connection with the case is no longer proper. There has not yet been time to receive reply to my No. 1043 of 7th inst., and meanwhUe I have aided Mr. McConneU as best I could to obtain a modus vivendi, considering your former instructions temporarily 113 in force. I had a long interview yesterday p.m. with Minister Astua, at which were present Mr. McConnell and his attorney, Mr. Ricardo Jimenez, my purpose being to obtain some amendments to the modus vivendi which has now been offered Mr. McConnell. I succeeded in obtaining the Min- ister's promise of recommendation to the President, and it is possible that an arrangement may yet be reached next week. Meanwhile I hope to receive some further instruction from you, and it is possible that condi- tions may present themselves deciding me to cable you, but this I shall avoid if possible, the Hmits of a cablegram being, in such a case, generally unsatisfactory. I have endeavored to carry out your instruction in this matter to the best of my abiUty, and have confidence that, when you are informed of the htigation going on between these two companies of Ameri- can citizens, in both foreign and United States Courts, the propriety of my withdrawing from even informal diplomatic action will be apparent. With assurances of my liighest consideration, I beg to remain. Sir, Your most obedient servant, William Lawrence Merry, American Minister. Enclosure: 1 . Keith to Minister of Public Worlds. No. 1050. [Translation. Enclosure No. 1.] San Jose, Costa Rica, 18th May, 1905. The Minister op Public Works, National Palace: Mr. McCoimell makes special mention of the Cultiva- tions which liis chent has on the land, the value of wliich have not been paid to hun. Although Mr. McConnell may have such improvements, the pres- ent status of the denomicement certainly does not permit of this paralyzing the comphance of judicial decisions thereby opening debate on points which have long since been alleged without having brought forth any proof whatever. This same Chamber has recogiiized tliis fact, and declared in its last sentence which appears m the Denouncement file that Mr. McConnell is not a party in this matter, and that he has no right to interfere in the proceedings, and mvich less now in the compliance of a judicial decision. This Chamber also saw fit to declare that Mr. McConnell had not proven 217 the existence of liis cultivations; and, if this at that time was sufficient reason to disquahfy his intervention in this denouncement, it must be more so to-day that the proceedings have been completed by virtue of the execution of and registered title wMch I now present, the return of which is hereby recpested. The prosecution of a public document such as this executed mider all formahties of the law and which credits the unquestionable right of my client to the denoimced lands cannot be suspended without accusing such action as being criminally false. Ai'ticles Nos. 735 and 73G of the Civil Code. To proceed in any other manner would be to concede a greater respect to the pretensions which have been debated and thrown out, to proceedings which were clearly carried on to unpede my client from realiz- ing the right of possession to which it is entitled rather than to an authen- tic document or to final decisions rendered by this same Comt. If Mr. McConnell has any rights which he wishes to make valid, let him do so in the customar}^ way and maimer. The possession of good faith which he invokes was not accredited m the proceedmgs of the Denouncement at an opportime time, and cannot, as a consequence, serve as a basis for the pretended right of retention. The case as described by Ai-ticle 328 of the Civil Code does not cover the class in question for the reason that Mr. McConnell is not nor has been the possessor of the right to the lands of my principal. The best proof of this that can be brought forward is that during all the time that he has been opposing^ the Denouncement he has never endeavored to make good his right of possession. He is well aware that the land in cpestion is Govern- ment land, and has never even alleged having acquired in any inamier as established by the Fiscal Code the right to possess. It is no more than just that he should be paid for the Betterments which he may have, and the Company to whon'i the lands have been adjudicated does not pretend to enrich itself with same. It is ready to ventUate this question as soon as he may bring same forward m legal form; but this should not give him the right to disttu-b the possession asked for and wlrich is an inevitable conse- quence of an executed title. He who denounces can only prevent the party to whom adjucUcation may be given taking possession |when the cost of survej's may not have been paid to him; and, further, he who alleges to have betterments without having proved the fact lacks all such right. The Civil Code in referring to possession treats as is weU known of those who possess, m the capacity of proprietors or at least those who have the right to possess or some title which may legitimize such possession; but 218 he who takes same without being authorized by law, without anybody having transferred to him the right to possess even though it be of a pre- carious character cannot invoke the guarantees estabUshed for such by law. All that the Fiscal Code authorizes and which is sufficient, after legal steps may have been taken, i§ the right to collect the value of betterments. In conclusion, the Company which I represent is disposed to discuss this matter of betterments if such be the desire of the opposmg party, although it be one now outlawed; but what it does not consent to is the loss of more time in the fulfihnent of stanch sentences and to be kept out of the pos- session which it has asked for, and which is a consequence of the accredited proprietorship by a registered title, and which is the ordinary procedure, legal and current, the coronation and end of denouncements which reach the status which the present one enjoys. In view of the foregoing 1 pray that this Court confirm the decision of the Judge of Contencioso Administrativo. San Jose, May 10th, 190G. (Signed) E. J. Hitchcock. For the presentation. (Signed) Ricardo Pacheco. DECISION of the SUPREME COURT declining to pennit the Northern Railway Company to enter into possession of the land occupied by McConnell's cultivations until his rights therein should be settled. 16th May, 1906. First Chamber of Appeals of the Supreme Com-t of Justice. San Jose, at three p.m. of the 16th of May, nineteen hundred and six. Re denouncement of some unapprojiriated land in the jurisdiction of the District of Limon, effected by Messrs. Carolina Ulloa de Astua & Cons., granted now to the Northern Railway Company and to which Mr. Herbert Lee McCoimell Scott opposes himself, being represented by Licentiate Ricardo Jiminez Oreamuno. Whereas Mr. Jimenez Oreamuno appealed from the decision handed down by the Court of Contencioso Administrativo matters of the repubhc at eight fifteen a.m. of the twenty-third of April last, wherein the objection of nuUity advanced by Mr. McConnell for being extemporaneous and there- 2lS fore inadmissible in these proceedings was declared sine causa, and whereby it was ordered that material possession be given of the land adjudicated, to the interested company, for which pm-pose the coiu't instructed the civil judge of the district of Limon to whom for the pm-pose indicated the papers in the case were sent, and whereas this appeal was allowed, and considering that I. The decision appealed from, dated twenty-third of April last, 8.15 A.M., in so far as it declares without cause the nulhty of the proceedings as alleged by McConnell, because of the non-notification of him of the decisions made in the course of said proceedings, is found to have been made accord- ing to law and should be confirmed because of its having been declared by a majority of this court (confer page sixty-seven) that the opposition to the denouncement as formulated by Mr. McConnell is without cause and that the matter, in spite of said opposition, should be continued and car- ried into effect, with the permission given thereto in the same decision, and considering II. As far as the fact is concerned that the decision appealed against orders that the company to whom the land has been adjudicated be put into possession of the real estate, it should be revoked, an objection havuig been presented by Mr. McConnell demanding a declaration acknowledgmg that he has improvements existing on the land in question, and that these should be paid to him before he can be dispossessed therefrom, as he pos- sesses the right of retention. This point is to be settled, first, in the same proceedings, because if the assertions of the said gentleman should really be justified, it would not be legal to deprive him. aheady now of the pos- session. Therefore the decision appealed from shall be confirmed as far as the same declares without cause the nuUitj' to which it refers, and shall be revoked in that part which orders that the adjudicatory company be put into possession of the land, which part for the time being is declared to be void, because it is necessary that first the question of improvement and the right of retention invoked by Mr. McCoimell be settled. Alberto Brenes. Benito Serrano. Luis Davila. Manuel Saenz C, Secretario. 220 Note. — Justice Alberto Brenes saved his vote in the present matter as follows: He accepts the "whereas" considering that in a decision rendered by this chamber dictated at three forty-five p.m. of the fifth of October of last year, as can be seen on page 75 of the records, the pe- titions and oppositions of Mr. McCoimell were denied and that the gov- ernment has issued already title of possession in favor of the denouncing parties or then- assigns, the taking of possession caraiot nor should it be impeded, such taking possession being claimed by the owners of the land adjudicated. Therefore, he votes that the confirmation of the decision appealed against be made to cover all parts thereof. Alberto Brenes. Manuel Saenz C, Secretary. 27th July, 1906. To the Judge of Contencioso Administrativo (Denouncement of Dona Caro- lina Lizano de Astua and others) : I, Ricardo Jimenez, legally appointed agent of Mr. McConnell, beg to submit to your [honor.] To justify [ascertain] the cultivations and other improvements and their value, I move the following proofs by witnesses, experts and by local inspection: — I. I petition that the justice repairing officially to the places where said plantations, buildings, etc., are, visit the land, convince himself of the existence of the improvements as well as of the size of the cultivations and cause an official protocol to be made thereof. II. I petition that the witnesses which I shall present at the time of in- spection of the places depose whether it is true that all the cultivations and improvements have been made for the account and at the order of tl^e said my mandator who was and is in public and peaceful possession of all said improvements. ^21 III. I petition that experts estimate most carefully the plantations, build- ings and other improvements that there are. San Jose, 27th of July, 1906. (Signed) Ricardo Jimenez. 9th Nov., 1906. Court of Contencioso Administrativo of the Republic. San Jose, on the ninth of November, nineteen hundred and six, 9 a.m. Whereas : Licentiate Ricardo Jimenez, authorized representative of Mr. Herbert Lee McConnell, submitted on the twenty-third of August last amongst other things to this court, that his mandator has transferred the owner- ship of the plantations and improvements to which these files refer, as well as all his rights referring thereto, to the concern ' ' The American Banana Company" of the City of Mobile; that he makes this declara- tion in compliance with instructions received by Mr. McCoimell, and that he withdraws from the intervention which as an authorized agent of the said gentleman he had had in the present case. 2. Whereas Mr. Edgar Hitchcock, representing the Northern Rail- way Com-pany basmg on the foregoing declaration, insists that, owuig to this desistment which he accepts, there remains no longer any cause which might retard the material possession of the land adjudged (to it) and petitions that it be ordered that said possession should be granted to the company, his mandator. 3. Whereas this court Ijy an order of the twenty-third of April last, at 8.15 a.m., decreed that material possession be given to the concern The Northern Railway Company, the first Chamber of Appeals re- voking, however, this order by a resolution of the seventeenth of May, 3 P.M., of this year, being of the opinion that, inasmuch as Mr. McConnell had entered an objection demanding payment of improvements made on said land, before being dispossessed thereof on the ground that he en- joyed the right of retention, this point should be first settled, because, if the allegations of the objecting party shoidd really prove to be well founded, it would be an illegal act to deprive him now of the possession; and 222 4. Whereas a hearing was fixed for the other parties in tliis case regard- ing the petition of Mr. Hitchcock, of which Mr. McConnell or Mr. Jim- incz did not a^'ail themselves, while the District Attorney sided with the petition for possession. Considering 1. That Mr. McCoimell, through his authorized agent, has not opposed himself by claimmg his riglits, having, aside from objecting once more that the Courts of Costa Rica had no jiu'isdiction to pass on acts done in the territorial district where his improvements are, manifested that he has transferred to the American Banana Coynpany all the rights that come to him because of them (improvements). 2. That when now granting material possession of the land in which said improvements are, the payment of which is under discussion, said material possession having been petitioned for by the representative of the Northern Railway Company, such a decision would conflict with the resolution of the First Chamber of Appeals to which the third whereas refers. Now, THEREFORE, The party claiming the improvements is declared in default. It is declared that at the present moment the granting possession is not declared feasible of the material possession as demanded by the rep- resentative of the Company to which the land has been adjudged, until after the proceedings indicated by the Supreme Court have come to a close. (Signed) Cipriano Soto. (Signed) t^ejandro Jimenez Carrillo 223 DECISION of the SUPREME COURT ordering possession of the lands containing McConnell's cultivations in Costa Rica to be given to the Northern RaUway Company. First Chamber of Appeals of the First Supreme Court of Justice ; San Jose, at nine a.m. of the third of December nineteen hundred and six. In the files of denouncement of some unappropriated land in the jiu-is- diction of the Canton of Linion, made by Carolina Lizano Ulloa and companions, now transferred to the Northern Railway Company, and to which Mr. Herbert McConnell Scott opposed himself, represented by Licenciate Ricardo Jimenez Oreamuno, this being a matter under the jurisdiction (competence) of the Judge of Contencioso Adminis- irativo of the Republic: Whereas Mr. John M. Keith, authorized agent of the said company, appealed from the resolution handed down at nine a.m. of the 9th of No- vember last, whereby the party claiming the improvements was declared in default, and whereby it was declared that it was not feasible to give at that time the material possession demanded by the representative of the company to which said lands had been adjudged, and that it was neces- sary that the proceedings indicated by the Superior Court should fii-st have come to an end ; Whereas, as long as Mr. McConnell (H. L. MacConnell) , who has claimed the payment for the improvements made on the lands adjudged to the Northern Railway Company, has withdrawn from the present case, declar- ing that he has transferred all his rights thereto to a foreign company, and that he fails to recognize the jurisdiction of Costa Rica as regards the tracts denounced, the former resolution of this chamber cannot any longer be carried out because the claimant has withdrawn from the case by virtue of his withdrawal— and as one nmst necessarily consider such withdrawal as the abandonment of his claim — said withdrawal having been accepted by the opponent party, it therefore being proper that possession be given to the owners of said tracts as the direct consequejice of the ownership, — Therefore, and in compliance with the articles of the Civil Code, num- bers 264-277, 410, and 411 of the Code of Civil Proceedings, the decision appealed against is herewith revoked, and it is ordered that the material possession be accomplished as prescribed here, without prejudice to the rights of third parties which Mr. McConnell or anj'- other person or cor- poration which represents him or may be cessionary of his rights may have concerning the cultivations and other improvements; and the author- ity that puts into possession the Northern Railway Company shall de- 224 scribe in detail the condition of the property in general, its cultivations and buildings that may exist thereon, and with all the other details that said authority may consider proper for defining the rights of any improver which might be shown hereafter. The Secretary of the Treasury shall be given duly indorsed the check presented jjy the company to whom the property has been adjudged, for the purpose of cliallenging " sine causa" Judge Davila. Alberto Bkenes, Benito Serrano, Marcelo Brenes, Mani'el Saenz C, Secretary. Note. — Mr. Justice Benito Serrano dissented. ORDER of the COURT of CONTENCIOSO ADMINISTRATIVO to the Govei-nor of Limon directing him to give possession of the said lands, through the instrumentality of the Police Service, to the Northern Railway Company. Cipriano Soto, judge of Conlencioso Administraliro of the Republic of Costa Rica, respectfully informs the Governor of the Canton of Limon that in the file of denouncement of an unappropriated tract situate in the same canton there occurs the following resolution which textually says as fol- lows: "Court of Coniencioso Adminisirativo of the Republic. San Jose, at nine a.m. of the fifth of December nineteen hundred and six; to be carried into effect; give to the Northern Railway Company the material possession it petitions for, of the land adjudged to it, thi'ough the Police Authority of the District of Limon in compliance with article 741-742 and 1039 of the Code of Civil Procedure. And therefore letters requisitorial as de- manded in law to the Governor of the said Canton in order that he himself, or some official of the police that he may designate for the purpose, pro- ceed to carry into effect that which has been ordered, with the understand- ing that in the act of possession there shall be described in detail the con- dition of the property in general, the cultivations and buildings that may exist thereon, and other details that he may consider suitable for deter- mining the rights of any improver that might be deduced later on; but before that the adjudicatory company shall furnish the surety of 200 colones to which the previous promemoria refers"; therefore and whereas the said surety has aheady been fm'nished, I request your excellency that you cause the said decision as here inserted to be carried into effect, 'giving possession thereof as demanded, pursuant to the title-grant and plan of the lands in question which I beg to send to j'ou together with the present letter. Given at San Jose at one forty-one p.m. of the fifth of December nineteen hundred and six, Cipriano Soto, Alejandro Jimenez Carrillo. 225 ORDER from the GOVERNOR of LIMON to the CHIEF OF POLICE of LIMON. Office of the Governor of the Canton; Limon, at twelve (noon) of the seventh of December nineteen hundred and six; to be carried into effect; for this pm-pose I commission the chief of poUce of this city to whom title-gi-ant and plan received shall be delivered with these letters requisi- torial. Francisco Saborio; F. Golcher. Office of the Chief of PoUce at two p.m. of December seventh nineteen hundred and six: To be carried into effect; the undersigned will repau- to the land referred to on the accompanying letters requisitorial for the pm-- pose of putting into possession the Northern Railway Company, of such lands; for this purpose the 11, 12, ISth and 14th of the present months are designated. Filadelfo Gbanados; P. P. Boza, Nap. Sequeinara. On the 11th, 12th, and 13th of December, the Chief of Police of Limon, with proper assistants and an engineer, proceeded to the Sixola River and dtdy and legally carried out the foregoing decrees of the Supreme Com-t and of the Court of Coniencioso Adminisiraiivo, and the order of the Gov- ernor of Limon, and formally placed the Northern Railway Company in full and actual possession of all the lands north of the Sixola River, in- cluded in the Astua denouncements, on which cultivations of McConnell lie. 226 CHAPTER 8. Showing the efforts of McConnell hi Panama in 1906 to procure action of the government of Panama to take away from Costa Rica the jurisdiction of the disputed territory north of the Sixola River, and the action of the National Assembly of Panama rejecting his interference. Herbert L. McConneli-. SOVEREIGNTY OF PANAMA AND THE REGION OF THE SIX AOL A. Question of Patriotic Interest. Promemoria Addressed to the National Assembly. DRAFT OF PROPOSED I AW (whereby the National Sovereignty is extended beyond tlie Sixaola River). The National Assembly decrees: Article the First. The Executive shall at once proceed to take actual possession of the land situated to the north of the Sixaola from the mouth of said river as far as Cinocere, near Cuabre, and from there to the Cabo Mona on the Atlantic Ocean, which according to the Constitution forms a part of the national territory. The government is authorized to conclude a contract for the construc- tion of a pier at the point of the coast known as Gandocan. Article the Second. The present shall be in force from the moment of its being sanctioned. Given in Panama Mr. President of the National Assembly, Honorable Deputies: 1 the undersigned, Herbert L. McConnell, a citizen of the United States of North America, temporarily in this capital, submit the following, as may seem best, in my own name : — 227 Some time after the promulgation on the part of the President of the French Repubhc of the arbitration decision which put an end to the boun- dary controversy between Colombia and Costa Rica, and pursuant to the fact that the said decision adjudged definitely to the former the so-called Sixaola and Talamanca Valleys, I occupied, in the character as explorer and colonist, under the protection of the Colombian laws (61 of 1874 and 48 of 1882), the region through which flows the river of the same name from the place where it flows into the sea to a site called Cinocere, about three miles below Cuabre. In the first days of the month of April, 1903, I began the work, and in June 1904, I. sold the rural property to a company called The Ameri- can Banana Company. The latter canied out important improvements, but it has not been able to derive from the enterprise the profit which justly could be expected, because of the obstacles with which I sjiall entertain you further on. The plantations now extend themselves over a surface of about three thousand five hundred (3,500) manzanas to the right and left of the river, and have a productive capacity of more than one hundred thousand (100,000) bunches per month. The cash capital invested in this immense undertaking amounts in all to about $300,000 American gold. I content myseK with submitting to you these data of a general character without accompanying same by proofs which would show the truth of my statements, for I am not spealdng to you in the name of private inter- ests with an object of soliciting for them guarantees and protection which not you, but the Executive Branch of the State Power is called upon to con- cede, pursuant to the laws. My present desire is directed towards submitting to your consideration, as depositaries that you are for the sovereignty of the Republic, a question of an eminently national character bearing on the Sixaola region, — a question which for the very fact that it bears on that zone of the territory of your country affects directly the banana interests rooted there. This ex- plains my presence before you. As has already been stated, the banana plantations extend from the mouth of Sixaola River, stream upward, to the right and left, as far as Cinocere, near Cuabre; but, inasmuch, as that river in certain epochs of the year, in which it becomes torrential, does not offer any secure entrance to the vessels, I had to select at the coast a point which, connected by a tramway with the plantations, would serve as port for said vessels. The point selected for that purpose is called Gandocan, being a place situated between the Sixaola River and the Punta Mona, scarcely Ivnown prior to 228 the date to which I allude, and which I turned into a settlement, constructing there at ray expense sheds for materials and dwelling-houses for the laborers. Willie matters were in tliat condition, it occurred that in the month of July, 1904, Costa-Rican soldiers or armed guards invaded suddenly the region of the Sixaola, occupied the plantations on the left bank of this river, and hkewise the houses and sheds at Gandocan, suspending the work on the railroad or tramway in construction, and impeded, and have impeded up to the present time, the importation, at those places of provisions and the exportation of fruit. And, not satisfied with these acts of mani- fest usurpation, they laid, moreover, an embargo on two-thirds of a ship- ment of construction material consigned to me, and which had been passed through the custom-house at Bocas del Toro, pursuant to the laws, per the inspector of that port, Mr. Carlos Clement. Torn away by force, without legal formulas of any kind, from the enjoy- ment of those rights created by means of titanic efforts and a large in- vestment of capital, I have since then wandered from place to place, trying to bring about, l^y all means imaginable, the reinstatement into the territory of the Republic of Panama of the Sixaola Valley, which is yours, honorable deputies, over which you had exercised jurisdiction without protest from Costa Rica, and which the latter coimtry has oc- cupied since July, 1904, without more right than that of usurpation, and the possession of which you recover never, or but very slowly, if you submit the question thereof to the good will of the neighboring republic. I myself, although a foreigner, I have an interest, or I ought to have said an urgent necessity, in that that reinstatement take place. The rights of ownership and possession of the lands covered by the plantations of the Sixaola were acquired under the laws of Colombia, in force since then in the Republic of Panama, and therefore under the light of these laws and before the courts of justice of Panama these rights should be sustained and ventilated against any one that dares to dispute them. Therefore, the object of the representation I make before is to call forth the adoption of a law which should approximately comprise the following points : — The National Assembly decrees: Article the First. The Executive shall at once proceed to take actual possession of the land situated to the north of the Sixaola from the mouth of said river as far as Cinocere, near Cuabre, and from there to the Cabo 229 Mona on the Atlantic Ocean, wliich according to the Constitution forms a part of the national territory'. The government is authorized to conclude a contract for the construction of a pier at the point of the coast known as Gandocan. Article the Second. The present shall be in force from the moment of its being sanctioned. Given This law is rendered Mghly necessary because of its appropriateness, the pressing necessit}^ of this measure, and, moreover, incontestable reasons which I propose- to pomt out to you briefly, all the more so as to some of you they are akeady kno^Mi. These reasons are the following: — (1) That the re,gion to which I am referring is an integrant part of the Republic of Panama; (2) That over it the authorities of Panama have exercised jurisdiction without protest on the part of Costa Rica ; and (3) That the Republic of Costa Rica occupies this region since July, 1904, mthout any other title than that of usurpation. I shall expound each of these important reasons separately:- — I. That the region of the Sixaola, in the triangle comprised by the mouth of the river of that name, the place called Cinocere and Punta Mona (which is the part that solel}' concerns me) lies \\"ithin the territory of the Republic of Panama, is a matter which you, Costa Rica, and the whole civilized world know and recognize. The almost centenarian boundary ciuestion between Colombia and Costa Rica was happily terminated by the arbitration decision, promulgated on the 11th of September, 1900, by the President of the French RepubUc. This decision, pursuant to the tenor of the treaty of arbitration concluded between the parties in San Jose de Costa Rica on the 25th of December, 1880, and ratified by that of Paris of the 20th of Januarj^, 1886, and the one at Bogota on the 4th of November, 1896, is, according to the text thereof, . , . "a treaty concluded, perfect, obligator}'', and irrevocable be tween the high contracting parties which formally and expressly renounce 230 any and all claims of any kind against the arbitration decision, and oblige themselves to accept and fulfil it promptly, faithfully, and forever, pledging therefor the nations' honor." In these solemn expressions is contained the acceptance in advance of the decision on the part of Costa Rica and Colombia, — an acceptance which, for greater security and guarantee, has for guardian and custodian the national honor of the two Republics. The secession of Panama from the mother country transferred to the entity wWch arose from said movement, amongst others, the territorial rights acquired by the latter. Concerning this Ball says in his Treaty on International Law (5th edition, page 92) : — : "The right possessed within the territory that has separated itself, those acquired by treaties bearing on boundaries and by means of jm-isdictional cessions, the obligation contracted, concerning said territory, and the property wdthin its limits, which in itself has a local character, . . . are transferred to the new state." Therefore, the arbitration decision of the 11th of September, 1900, is the perfect title wdien Panama derives its right of ow^nership and dominion to the triangle already described to the North of the Sixaola. Who does not remember at once the short but precise terms of that pre-eminent au- thority? He said, — ..." The frontier between the Republics of Colombia and Costa Rica shall be formed by the counterfort of the Cordillera (mountain chain) which starts at the Cabo Mona, on the Atlantic Ocean, and closes in to the North the valley of the Tarire River on the Sixaola River." Scarceh^ had the decision been communicated to the nations interested* therein, being published in the Official Gazette of the French RepubUc of September 15, 1900, both Costa Rica as w^ell as Colombia w^ere to have abandoned speedily and at once the jurisdiction which they formerly exercised over territory which by virtue of the decision had been adjudged to one or the other. Colombia should, therefore, have abandoned to Costa Rica the cocoa forests of Burica, Coto, and Pavon which the District of Sofia used to lease to private parties every year, and Costa Rica to Colombia the large territory to the East of the mountain chain indicated in said decision as the natural frontier towards the Northwest between the two countries. If that did not happen, that is to say if one or the other of the two nations remained knowingly on territory no longer belonging to it, with the toler- 231 aticfe or silent consent of the neighboring government, so was this doubt- lessly not due to the wrong belief that the former condition of matters — that is to say, preceding the decision of the arbitrator — still continued, but rather it was due to negligence only too often to be found Avith those who are sure of their rights. A decision affecting nations, like a judgment of a definite character on private interests, puts an end to all controversies. By the decision of the President of the French RepubUc the territory of the dispute was divided up, and each nation remained integrate, with the property, or rather with that part of the property, that now belongs to it. The situations pre- ceding the arbitration decision, any provisional boundaries that had been or might have been established, that which in the case of Colombia and Costa Rica has improperly and falsely been called the statu quo, all tliat evaporated, was wiped out, disappeared, when the arbitration decision was pronounced and promulgated. Gravely, indeed, err those who assume that a decision does not bring about any effects as long as the parties do not come to an agreement as to the manner in which the same is to be executed, or that it remains a dead letter until a new treaty gives it new life, in which treat}'^ the bases of its fulfilment are settled. If that were so, international arbitration would only remain an empty recourse. It then would suffice that the less favored nation in an arbitration decision should elude, by means of pretexts and subterfuges, the carrying out thereof, to prolong in this manner for an in- definite period the same condition of matters which by the recourse of tlie arbitration had been intended to be brought to an end. Moreover, for Colombia and Costa Rica the decision acquired by mutual agreement of the parties thecharacter of a " treaty concluded and perfect," and that means that the execution thereof is a foregone conclusion as soon as the decision is rendered and the parties have been notified thereof. The treaties are fulfilled from the moment in which they acquire legal ex- istence. There is still more to be said: Strictly speaking, a decision hke the one rendered by the President of the French Republic, does not require de- marcation of the frontier line by commissions appointed by the neighbor- ing States. Natural frontiers like the ones which separate them, as in this case according to the bounding effected by the arbitration decision, need not a material demarcation on the land itself. In his treaty. Codified International Law, Spanish edition of 1891, page , Fiore says as follows: — 282 "The conventional boundaries are those established according to lines of demarcation fixed by ti-eaties, distinguishing themselves by visible signs placed between the frontier of the state and those of the limitrophe states." These visible signs are usually rivers or mountains, because it is, in fact, the duty of arbitrators on boundary questions to consider the natural boundaries when tracing the actual ones of each State. The tracing of the decision pronmlgated on the 11th of September, 1900, was fixed on the side of the Atlantic Ocean by signs of mountains, and therefore subject to that rule of Bluntschli which reads, — "When the countries are separated by a mountain range, it is ad- mitted, in case of doubt, that the frontier is formed by the crest or the dividing fine of the waters." Panama understood matters in the mamier here expounded from the very first moment of its separation from Colombia, and reassumed, there- fore, the boundaries indicated in the decision as the proper and definite ones of the new State. Decree 18 of the 16th of November, 1903, Official Gazette No. 2, of the 20th of November, 1903, issued by the Provisional Government, created the province of Bocas del Toro, and indicated for it as fron- tiers on the Northwest "the dividing line of this republic with that of Costa Rica, according to the arbitration decision of the President of the French Repubhc," and for the district of Bocas del Toro the territory which lies to the North of the Sixaola River up to Cabo Mona,Loma Bonita, and Rio de Occidente. By means of this important act of the Provisional Government of Panama there were adopted the boundaries of the arbitration decision, . and they were copied in the public right (law?) of the new State. Panama appreciated the decision according to its true value, that is to say as a just title will say perfect title of property over the region of the Sixaola as far as Punta Mona, and extended, therefore, over it its sovereign juris- diction. Therefore the governors and other authorities of Bocas del Toro were to exercise, and exercised in fact from then onward until the month of July, 1904, command and jurisdiction there. On the date last named Costa Rica started to occupy manu militari the said territory, and it thus failed to recognize the sovereignty of Panama. Nevertheless, the Decree of the Provisional Government which created the Province of Bocas del Toro is still in force as law of the republic. I 233 At that time the country had akeady been organized, and had been given a constitution, a faithful transcript of the permanent will of the nation, and also here was designated as belonging to Panama . . . "the territory, both insular and continental, which was ad- judicated to the Republic of Colombia by virtue of the arbitration decision promulgated on the 11th of September, 1900, by the president of the French Republic." In this manner the reign and jurisdiction of a country are extended as far as its boundaries reach, and thus the constitution has conveyed to the Republic of Panama command and jurisdiction of the region of the Sixa- ola, which is an integrant part of the national territory. Fiore states and aflirms that — "the territory, with all that it contains, must be considered as the base and limit of the reign and the real jurisdiction of each sovereign." From the point of view of its fundamental law, Panama is, therefore, in possession by right and fact, or, as the jurists say, de jure et de facto, of the triangle of national territory which reaches from the mouth of the Sixaola River as far as Cinocere, near Cuabre, and from there to the Cabo Mona. That fact that Costa Rica has occupied that region, and that this occu- pation has been tolerated and assented to contrary to the express text of the constitution, is a thing which it is not my business to examine. My object is to demonstrate that you are the masters with perfect title of the Sixaola, Gandocan, and Punta Mona, and that the constitution and the laws which you yourselves have given for youi own government have extended over that region the national reign and the national jurisdiction. II. In ciA-il law a title deed duly recorded is a f uU proof of possession. " In the law of nations," says Carlos Calvo, "the use in re carries with it always and in every case the use ad rem" (International Law, ed. of 1868, page ). Panama, as mistress of Sixaola, covers with her sovereignty that ter- ritory, and the authorities of Bocas del Toro are those which are in charge of carrying into practice the attributes of sovereignty, to wit, the reign and jurisdiction. 234 Of two acts of actual jurisdiction exercised by authorities of Panama mthin the territory to which I refer, I possess two positive proofs. One of these acts is that of the port inspector of Bocas del Toro, and the other that of the treasury agent of the same province, In the archives of the public offices tliere must be evidence of many other analogous acts, because it is a fact not doubted by any one that the Prefect of Bocas del Toro governed the province in all its extension, from the time when it was created up to July, 1904. The same must be said of the Inspector of the Port. This official pos- sessed legal existence under the republic by virtue of Decree 17 of the 19th of November, 1903 {Official Gazette No. 3, issued by the Provisional Gov- ernment). It seems appropriate to copy here article 12 of the said De- cree, which reads as follows: — "Article 12. There shall be a national custom-liouse officer in every one of the cities of Panama, Colon, and Bocas del Toro, with jm'is- diction within the respective provinces, under whose charge there shall be the surveillance of national income and the maritime pohcing of the respective ports." The chief of the guard exercised the jurisdiction conferred here in the whole province of Bocas del Toro, when there arrived at this port, bound from the United States, the steamship "Orn," carrying particularly ma- terials for railroads destined for the region of Sixaola. After the authori- ties had been informed as to the nature of the cargo, Mr. Otto F. Dolder, my agent at Bocas del Toro, sent the following communication to the inspector of the port : — To the Chief of the Custom-house Guard, City: Please issue permission that the Norweigan steamer "Orn" under command of Captain Movinkel, from Baltimore, consigned to Otto F. Dolder, for the place of Gandocan, Sixaola, may weigh anchor. Bocas del Toro, 22nd July, 1904. Otto F. Dolder, p. Grabowcki. At the bottom of this request there appeared the folloAving decision: — "May weigh anchor. (Signed) The chief of the custom-house guard, C. Clement." In corroboration of the preceding, and in order to show that this "May weigh anchor" was conceded in fuU appreciation and knowledge of the 235 fact that Gandocaii is national territory, tlie following certificate should be read : — The undersigned, chief of the National Custom-house Guard, at Bocas del Toro, after examining the promemoria presented by Mr. 0. F. Dolder to this office, certifies: I. That it is a fact that the office under his charge sent on board of the steamer "Orn" three officials for the purpose of being present at the unloading to be effected by said steamer in the port of Gandocan during the last days of the month of July of last year, and to record the loading of the same. II. That the names of the three officials and their rank in the office is as follows: Juliam E. Mier, sergeant of the guard; Rogelio Quintero, guard; and Manuel Antunez, guard. (Signed) C. Clement. The other act of actual jurisdiction to which I have referred was exe- cuted by the treasury agent of the province of Bocas del Toro, and con- sists in that the said official collected import duties or commercial taxes on the cargo of the "Orn," made up of railroad material, destined for Gandocan iu the district of Sixaola. The collection effected by the administration (treasury agency) amounted to $10,000 Colombian cur- rency, for which the office at Bocas del Toro has paid itself in excess, selling in public auction property belonging to the undertaking, particu- larly a gasoline launch called "Sixaola." Although I am of the opinion that the railroad material carried on board the "Orn" was not then, and is not now, subject to the payment of the commercial ckity, I have, nevertheless, cited the case as a positive example of actual possession wluch does not leave any room for uncer- tainty. The following certificate issued by the treasury agent at Bocas del Toro explains the matter more fully. It follows herewith : — The undersigned provincial treasury agent, pursuant to the pre- ceding promemoria and the documents on file in his office, certifies: Firstly. That it is a fact that in this office there was intended and 236 is pending a bill for writ of execution to collect from the American Banana Company the import duties on a cargo of raikoad material, which arrived in the steamer "Orn" at the end of July, nineteen hun- dred and foui'. Second. The articles imported in the steamer "Orn" were rails, cars, and utensils for tracks, subject at that time to the payment of import duties, because here the law 88 of nineteen hundred and four had not become operative. Third. From the files it does not become evident where the cargo of the "Orn" was discharged. Fourth. It is a fact that the import duties were liquidated in agreement with the declaration of Mr. 0. F. Bolder, as legal attorney of H. L. McConnell, in a promemoria of the 24th of July, nineteen hun- di'ed and four, which declared that per steamer "Orn" thirty-three thousand four hundred and thirty-six packages had arrived. In July of the said year the said duties amounted to ten thousand one hundred and forty-nine dollars and ninety cents. (At the present time the Republic of Panama loses because of the im- portations by way of Gandocan and the exportation of bananas a con- siderable amount of income, which otherwise — that is, by the reincorpo- ration of the said territory— would flow into the pubhc treasury. The amount that thus does not flow into the national treasui^^ anioimts to hundreds of thousands of dollars, owing to the indifference witli which up to the present time those important interests have been overlooked.) Fifth. It is true that for the payment of the sum referi'ed to my predecessor attached, stored and appraised three thousand four hun- dred and twenty-three rails. Sixth. The property of the American Banana Company attached, stored appraised and sold by the undersigned in the suit referred to. above, and pursuant to the rules laid down in articles 1079 of the ju- dicial code and 1085 of the law 105, was the gasoline launch called "Sixaola." Seventh. The sale of the gasoline launch "Sixaola" produced two thousand three hundred balboas. Eighth. On the 16th of May, nineteen hundred and six, there were adjudged in pubhc sale to Messrs. Surgeon and Company one hun- dred rails for seventy balboas, which amount was turned into the treasury of this office. On the 6th of June last, three thousand three hundred and twenty-three rails remaining to Mr. J. W. Barranco, for three thousand five hundred and fourteen balboas, five cents, a sum which has not been collected as yet, because it is made dependent upon some drafts drawn by Barranco on the United States. 237 Ninth. On this point no certificate can be issued as yet, because the final liquidation has not been as yet effected. Tenth. The only rails dehvered have been the one hundred, mak- ing up the lot sold to Surgeon and Company. Those adjudged to Barranco are stoi'ed until the drafts referred to above have been con- verted into cash. Given at Bocas del Toro on the tenth of July, nineteen hundred and six. III. Coming now to the third point, which is to the examination of the occupation on the part of Costa Rica since July, 1904, of the land where the plantations and works of the undertaking are, on the left bank of the Sixaola, I would state that this occupancy is due, according to all appear- ances, to a matter which is said to have existed between Coloml^ia and Costa Rica prior to the promulgation of the arbitration decision, under the name of "statu quo," or provisional frontier between the two coun- tries. Concerning this matter there has been prevalent a mistake which it is high time to clear up. Neither has the statu quo invoked by Costa Rica existed at any time as a formal agreement between her and Colom- bia, nor can it be maintained that it survives and subsists as provisional frontier after the promulgation of the arbitration decision which fixed and determined the definite boundary. In his work "Frontiers between Colombia and Costa Rica," Mr. Fran- cisco de P. Borda asserts that that which has been called jurisdictional statu quo of the two nations is nothing else but the sanctioning of the uti possidetis of 1810, defined in the treaty concluded in 1825 between Colombia and the United ProAances of Central America. Article VII. of this famous treaty reads as follows: — "Article 7. The Republic of Colombia and the United Provinces of Central America bind and oblige themselves formally to respect their frontiers as they are at the present time, reserving the privi- lege of effecting amicably through a special convention the demar- cation of the dividing line of either state." This statu quo or uti possidetis of 1810 threw the frontiers of Costa Rica not only beyond the Sixaola and the Tarire Valley, but deprived her also of a part of the coast on the Caribbean Sea. 238 Si'ice tliiit time there has been no other treaty. The work cited states so clearly in the following paragraph: — "Since 1825 up to the present time, if we except the arbitration treaty, there has not been concluded definitely any treaty, pact, or agreement with any of the republics of Central America. The treaties signed by the ministers of Colombia and Costa Rica have been dis- allowed by the respective congresses. If any innovation had been made in the statu quo before 1884, during the constitution of eighteen sixty-three, without the assent of the congress, it would be essentially void." In the treaty of arbitration concluded December, 1880, in San Jose by the Colombian plenipotentiary Jose Maria Quijano Otero and the minister of Costa Rica, Jose Maria Castro, the following can be read in Article VII.:— ... "is agreed and here formally stipulated that the question of boun- daries and the designation of a dividing line between the adjoining territories of Colombia and Costa Rica shall never be decided by any other means except the civilized and humanitarian means of arbitration, the statu quo agreed on being preserved in the mean- while." Referring to this unexpected revelation of the existence of a secret agreement concerning the stntii quo, Mr. Borda says that such a thing done without the approval of the Congress is essentially void. One really cannot know what can be the statu quo agreed on if it is not that of 1825 or the uti possidetis of 1810. It is certain that in the diplomatic archives of Colombia there appears a note issued from the Secretary of Foreign Relations, dated the 20th of April, 1880, which says: — " For the effect of the statu quo, according to which both republics have agreed not to change it, as long as the arbitration decision has not taken place, my goverment sustains and protests that the boun- dary of the two republics, during the time that their questions on boundaries remain pending, are the following : — " 'On the side of the Atlantic, the principal bed of the Culebras River, to its source, following a line over the Cruces mountain crest as far as the mouth of the Golfito River in the Golfo Dulce in the Pacific. This government considers any act of jurisdiction on the part of Costa Rica on this side of these boundaries as an act of usurpation. , . , (Signed) Luis Castro Rico." 239 Timnediately the Costa Rican minister replied to the note of the Co- lombian minister, indicating that^ which Costa Rica considered as the line of the statu quo. I quote herewith the pertinent part of the said reply on the 10th of June, 1880:— " I cannot admit that the occupation of Bocas'del Toro effected by Colombia and tolerated by Central America can have altered what in legal language should be called 'the state of things.' My gov- ernment maintains and protests — not by facts, but by reasons of justice which are incontestible — that the line of the stoiw quo is that which starts from Punta Biu'ica, runs straight to Escudo de Veraguas, and that any act of jiu-isdiction exercised by Colombia this side of -those boundaries must be considered as an act of usurpa- tion. . . . (Signed) Jose Maria Castro." Tt can easily be understood, in view of these differing opinions which were never brought to a voluntary agreement, that between Colombia and Costa Rica there had never been any real statu quo except that of 1825, that the line indicated by the Colombian secretary, Luis Carlos Rico, in his note of the 20th of April, 1880, as it had not been accepted by Costa Rica, obliged neither this country nor Colombia, even if we concede, and by doing so we concede a great deal, that an agreement of this kind were at all valid, and that, therefore, any occupation on the part of Costa Rica of territory east of the Hne of the idi possidetis of 1810 has necessarily had the character of invasion, and any jmisdiction which in virtue thereof it may. have exercised over the said territory has been usurped. The line, which by the by is indefinite, indicated l^y Minister Rico as provisional boundary between Colombia and Costa Rica, goes along the principal river-bed of the Culebra River (also called "Doraces"), which, according to the official map of Manuel Ponce de Leon, 1864, which must have been the one which served as a guide for the Colombian chancellery, flows into the ocean many miles north of the Cabo Mona, leaving, there- fore, on this side the region of Gandocan and the entire valley of the Sixaola. In spite of all this, and in case you should not have fixed your attention thereon, I would hke you to remember that, according to the terms of the note, that line was to subsist only while the arbitration decision had not heen brought about. This arbitration decision which was to have been rendered by His Majesty the King of Spain, and which, as the terms stipulated for it had expired, and as a new arbitration treaty had been made between Colombia and Costa Rica on the 4th of November, 1896, which fell to the President of 240 the French Republic, Einilc Loubet, to reuder, was finally promulgated on the 11th of September, 19U0. The arbitration decision was comnumicated to the interested parties on the 15th of September of the same year, so that de facto and in virtue thereof that capricious and arbitrary statu quo ceased \vhicli had been fixed by Mr. Rico and not accepted by Minister Castro. Since that time the definite frontier took by right the place of any other line or provisional frontier. It only remained to take material possession of the territory adjudged by the decision, an intention conuuunicated by Colombia to Costa Rica through its envoy extraordinary and minister plenipotentiary to the gov- ermnents of Mexico and Central America, Mr. Lorenzo Marroquin. In a nicmoranduni addressed by this diplomat to Mr. Justo R. Facio, Minister of Foreign Relations of Costa Rica, on the 27th of February, 1901, the following appears : — " Moreover, the Colombian govermiient believes to be under the obligation to look after the territories which that decision, meaning the French arbitration decision, recognizes as a part of its domain, establishing custom-houses and guards, founding militar}^ and agri- cultural colonies, starting the service of missions, providing for the political and judicial administration, and using such means as may .bring about the development of welfare, growth, and progress of the jxirts demarcated. Thus leaving aside other reasons with which I do not wisli to fatigue your excellency, the government of Colombia will send about the middle of September of the present year a com- mission to take possession of the territory which has been adjudged (o it, according to the decision, and to deliver unto Costa Rica that which belongs to the latter. The natural boundaries indicated by the arbitrator render this act easy and feasible." Although the taking possession announced for the midtile of September, 1901, could not take ]3lace because of the war that broke out at that time in Colombia, the notification transmitted to Costa Rica remained standing, to become operative at any time. Conclusion. On the 14th of September, 1904, the Secretary of Public Works rendered the following resolution, number 33, reading literally: — "Therefore the government resolves: — " The Secretary of State and Foreign Relations is to be requested 241 to address a request to the government of Costa Rica, that provisorily and until the exact boundaries are settled between the two republics no obstacle be laid in the way of Mr. H. L. McConnell by the authori- ties of the government of Costa Rica, in the work which he is under- taking in the place called Gandocan. Record and notify. For the President of the Republic, the Secretary of Pubhc Works, Manuel Quint ero V." This recommendation, in perfect conformity with the duty of legal pro- tection falling to the government, was, however, not duly carried out by the Secretary of Foreign Relations, because there were pending at that time in this office important negotiations with the neighboring Republic of Costa Rica, and, although it cannot be understood, in what form these nego- tiations have been al^le to justify the non-exercise of the sovereignty of Panama within the national territory, it is a fact that during the time required for the discussions as to the concluding of the treaty known under the name of the Guardia-Pacheco treaty, the Executive of Panama remained in a condition of absolute, although not very well founded, abstention as regards the Sixaola. Fortunately, the apparent obstacle accruing from these negotiations dis- appeared when they came to an end, culminating in a treaty not yet pub- lished, but known by all, which, as far as I know, is to be submitted to your consideration in the present session of the National Assembly. As long as the Guardia-Pacheco treat}'' has not been ratified by the respective congresses, it will not have any legal existence. It can, there- fore, only poorly be used as a pretext against the appropriateness of Panama extending its immediate jurisdiction over the territory adjudi- cated in the arbitration decision. For the more thorough understanding of the matter you should know, however, that the region situated to tlie North of the Sixaola River will remain a part of Panama, even after the treaty in question is approved, whose frontier line leaves within the na- tional territory the zone comprised between Punta Mona and (^inocere, near Cuabre, on the left bank of the Sixaola down stream to the mouth of this river. In effect the Guardia-Pacheco treaty says literally, as follows: — " The frontier between the Republics of Panama and Costa Rica shall be formed by a line which, starting from Punta Mona on the Atlantic Ocean, shall follow in a southwesterly direction until it strikes the Sixaola River below Cuabre. From this point the dividing line shall follow on the left bank of the Sixaola River up to the place where it joins the Yurquin, or Zhorquin, River." . , . 242 This demarcation, as it does, leaves as property of the Republic of Panama the valley of the Sixaola and the port of Gandocan as far as Punta Mona; and the question is now, Wliy should its usufruct be left for a longer time still to Costa Rica? It should not be forgotten that the Guardia-Pacheco treaty is await- ing ratification, not only in the National Assembly of Panama, but also in that of Costa Rica; that the latter Congress can only be convoked some time in May, 1907; and even if, expecting the best result in that matter, it is convoked in that month, three, four, and even five years more will be lost in the appointment of the boundary commissions and in the demarcating on the land of the frontier line, — a time which, nec- essarily, must finally destroy my hope. Would it be j ust to expect me to wait that long ? The Repubhc of Panama, a,s regards its territory of the Sixaola, is con- fronted by the same duty as the owner of a thing of which he has been deprived; that is, the duty of recovering it. It is not well that the atti- tude of indifference of the nation concerning its territorial rights should still be prolonged. What will foreign nations think of your carelessness? The Department of State of the United States has taken steps in this matter, to assure for American interests rooted in the north of the Sixaola the legal protection which is due to them. For this purpose it has sent to its diplomatic representatives in Panama and San Jose de Costa Rica instructions tending to obtain that end. On the 25th of January of this year it sent to the American Legation in this city, for its transmission to the office of the Secretary of Foreign Relations, the following note: — " This government . . . reserves for itself in favor of any American prejudiced against Costa Rica or Panama all the rights as regards- the territory [of the Sixaola] for the violation of which the legiti- mate sovereign is responsible." The legitimate sovereign of the territory where the American interests are situated which are discussed here is the Republic of Panama, whose authorities have the duty to watch over their protection. This republic will therefore be responsible for the losses caused by its negligence in not extending its jurisdiction over the entire national territory. In the letter of instructions, dated Washington, the 16th of April last, Mr. Ehhu Root, Secretary of State, is more explicit. He writes as fol- lows to Ambassador Charles M, Magoon:— 243 "Considering the actual relations of Panama to the territory in question [the Sixaola], it appears, that this republic has consented that Costa Rica continue as sovereign de facto until the ratification of the treat3^ [He refers to the Guardia-Pacheco treaty.] ... As such, and while Costa Rica has the possession de facto, it will possess the attributes which accompany such possession, such as collecting im- port duties, etc., in Gandocan. " But the higher attributes of sovereignty will always rest with the legitimate owner, a reason for which it would be proper that Panama see to it that the rights and titles acquired in the national imappropriated lands within the area of the territory of the Sixaola be not preju- diced by Costa Rica, which only exercises there an accidental and precarious jurisdiction. Panama can reach this result by means of discreet representations made to Costa Rica, or protests or any other mode which is not force." There is no doul^t but that the situation called forth by the negligence of the Republic of Panama concerning the region of the Sixaola has few examples in the diplomatic annals of the world. This country — master of this territory in virtue of the perfect title of .ownership, — to wit, the arbitration decision, and by mandate of its constitution and laws, — aban- dons, nevertheless, to" the Republic of Costa Rica the possession de facto, or, in other words, the usufruct of that region, and does not realize that its tolerance or tacit consent does not only bring forth a situation M'hich is exceedingly abnormal, but does also infringe and violate its internal public right. The United States recognized for Costa Rica the possession de facto which she maintains in the region of the Sixaola, founded on the consent of the Executive of Panama; but, inasmuch as such consent is contrary to the constitution and the laws of the country, or, in other words, since the government cannot accede to anything which may in any shape or form be contrary to the written law, it must necessarily be conceded that the tacit consent of Panama to the fact that Costa Rica continue in the possession de facto to that part of the national territory which lies to the North of the Sixaola River is a consent which is void, and that the occu- pation founded therein is usiu-pation. If the United States, for which the Republic of Panama only has the possession de jure in the territory of the Sixaola, is of the opinion that the latter entity as master has to look out that American interests estab- lished there, should not suffer any damage, what will they think v\'hen they know that the possession de facto of Costa Rica rests on the frail pedestal 244 of an illegal consent, and that, if Panama does not occupy that territory, it is due to mere negligence? Now is the time to act. Remember that, in view of the juridic truth of matters, Costa Rica cannot, without becoming an unpleasant and threat- ening neighbor, oppose any obstacles to your occupancy beyond the Sixaola. On the contrary, if international amity is not a vain expression, that republic should give proof of its friendship towards the Isthmus, abandoning willingly to Panama that which belongs to Panama. Mr. President, Honorable Deputies. HERBERT L. McCONNELL. October 16, 1906. [Daily Star and Herald, November 14, 1906.] Open Letter. THE SIXOLA QUESTION. To THE Editor: Sir, — Since there has been considerable discussion through the local press regarding my laiemorial to the National Assembly, in w^hich it is asked that the government repossess itself of that portion of the national territory situated between Monkey Point and the Sixola River (now held by Costa Rica), for the protection of fruit interests situated there, I beg to quote from certain documents in order tliat tlie situation may be better understood. On April 16, 1906, Secretary Root wrote to the American legation at Panama, and (with the necessary changes) to the legation at San Jose, Costa Rica, as follows : — (A copy of this communication is found on page 163.) A supplementary letter was also sent to the legation at Panama, inquir- ing in substance why the Panama Government, after collecting duties on goods landed at Gadocan, between Monkey Point and the Sixola River, failed to protect the owner in their use. On April 27th, 1906, the legation at Panama, cabled the State Department at Washington as follows:— 245 "In conference with the President, Guardia, and Obaldia, reference to jurisdiction over territory' north Sixola was made. Guardia said Panama conceded to Costa Rica the right to exercise complete jurisdiction, an^ Panama has no intention to withdraw said right until final action upon pending boundary' treaty. He admitted that Panama had collected tariff duty on railroad material brought by American Banana Company from the United States to Gadocan, thence to Bocas del Toro, but denied that they had collected or attempted to collect duty on any part of the cargo not landed at Bocas del Toro. WiH take up American Banana Company affair.s as you directed by your letter of April 16th, received yester- day." The legation later sent a letter report to Washington, a portion of which was confidential. My attorney, writing from \^'asliington concerning that portion of this report wliich was made to him, said in part: "Panama has stated positiveh' to Governor Magoon that she does not claim any sovereignty wliatever, either de facto or de jure, in the Sixola valley, and considers the Loubet award faulty in many particulars, and in case of attack ou the part of Costa Rica likely to be set aside. Her President and Minister of T'oreign Affairs have taken the posirion that they will not do anything to assert their claims to jurisdiction, or make any representation in your behalf to Costa Rica. As we have formally ad\'ised you, it would be of great ad-\'antage to us and the Department of State acting in your interests if in dealing with Costa Rica they could nominally be asserting the claiins of Panama. Panama, as you see, refuses to give us tliis ad- vantage." As to the statement emlDodied in the legation's calale despatch of April 26th (this despatch was signed "Magoon," but Mr. Sands, now American charge d'affaires, tells me that it was sent by him), to the effect that Panama has not collected, or attempted to collect, the duties on that portion of the Orn's cargo landed at Ciadocan, I have to state that my memorial contains a complete copy of the statement of the Collector of the Port of Bocas del Toro that duties have been collected on the entire cargo, a por- tion of which was landed at Gadocan. It is proper to state that during a conference on October 4th with the President and Mr. Ricardo Arias, Secretaiy of Foreign Relations, Mr. Arias, who, however, was not in office during the period that this cor- respondence took place, stated that Secretarj' Root's cable and letter de- spatches of March the 19th, and April the 16th, respectively, had never been formally placed before the Panama Government, he not ha^^ing seen 246 tliem previously. Mr. Arias further stated that the legation cable and letter reports do not correctly represent the views of his government re- garding the Loubet award, and the sovereignty and jurisdiction of the Sixola-Gadocan region. He said that Panama's views coincide exactly with Secretary Root's as expressed in his letter despatch of April the 16th . . . [That is, that Panama is the sovereign, and has the right at any time to divest Costa Rica of jurisdiction.] It is apparent, therefore, that the President did not give expression to or sanction the statements contained in the legation's reports. Mr. Sands tells me that Secretary Root's despatches of March the 19th (cable) and April the 16tli (letter) never reached the legation. I am just in receipt of a letter from my New York attorneys, dated October 16th, concerning these matters, reading in part as follows: — "The present situation in Cuba seems to us to furnish a parallel. The administration intervened there because they were requested so to do by the President of the Cuban Republic. ... In the case of Panama we think the obligation of the United States to interfere is as strong as it was in Cuba, but the Panama Government has not requested any assistance, and has not even intimated its desire to have Costa Rica withdraw from the Sixola territory." The attorne5^s suggest, especially in view of the fact that there is no direct diplomatic communication between Panama and Costa Rica, that Panama might, through its representative at Washington, request the United States to intervene. As all are aware that the United States (Panama's friend), through treaty agreement guarantees the indepen- dence of the Repubhc of Panama, and since the United States, through Secretary Root, has recognized the Sixola-Gadocan territory as a part of the Repubhc of Panama, what is more simple and proper than that Panama should ask the United States to require Costa Rica to withdraw from that territory? The United States could not, were it disposed (and there is no reason to suppose that it is), in view of its treaty obligations and Panama's reli- ance on that agreement (it having wholly disarmed), decUne to comply with such a request. Panama, because of its treaty with the United States, is just as much stronger, for purposes of defence against seizure of its territory, than the latter government as its individual strength 24t amounts to For such purposes it has the combined strength of the two governments. H. L. McCoxxELL. P.S. — Costa Rica dechned to allow the .\nierican Banana Company to operate for the reason that its courts had, dm'ing the present j^ear, decreed title to the lands to the United Fruit Company, stating that it was its duty to protect that compan5''s interests. The only way, therefore, that Panama can protect the American rights acquired under its laws is to repossess itself of the territory. Jly attorney, in writing fm-ther regarding the American legation's letter report to Washington, said, "Panama has stated to Governor Magoon that in case the treaties are ratified she -nill not consider the decision of the Costa-Rican com-ts binding upon her, but that she would natm'aU}- be much influenced by such a decision, being the decision of a country which she recognizes as a sovereigntj'." 248 REPLY TO McCONNELL'S MEMORIAL TO THE NATIONAL ASSEMBLY OF PANAIVM.. NOTES ON A PROMEMORIA. Mr. Herbert L. McCoiinell has addressed to the National Assembly a memorial in which, after submitting sundry reasons and explaining the damages that have been caused to him by the occupation on the part of Costa Rica of the territory beyond the Sixaola River, he finally demands of the Assembly the issuing of a law, of which petitioner also submits a draft, by virtue of Vt'liich the Executive is to be ordered to proceed imme- diately to take possession of certain tracts situated in that region, author- izing him at the same time to construct a key (quay) in the anchoring ground of Gandocan, so called. Passing over tlie inconvenience that there exists if a private person presents drafts of laws to the Assembly, we will make some reflections on the promemoria submitted by the said Mr. McConnell, and based on some theories and assertions that must not go unchallenged unless there is danger lest the public should get wrong im- pressions and form unfavorable conceptions concerning certain official facts and acts, some of which emanated from the chancellery of the Isthmus, and which are discussed in the said promemoria. There are two scientific methods by virtue of which the truth can be ascertained; viz., analysis and synthesis. Both shall be resorted to in the present reply, and we shall begin by giving a synthesis, or considera- tion as a whole, of the petition of Mr. McConnell. This gentleman wants the Republic of Panama to take possession of a tract which since time immemorial has been occupied de facto by Costa Rica, and he bases himself on the fact that Panama, according to the decision handed down in September, 1900, by the President of the French Republic, is a de jure owner of the said territory. It is a well-known fact that special circumstances of mutual convenience for the people of Panama, as well as of Costa Rica, have led to the con- cluding ad referendum of the Guardia-Pacheco boundary treaty, at the present time submitted to the National Assembly. At the very first glance the absolute inconvenience of the proceeding suggested by Mr. McConnell becomes evident, because that proceeding would break the ^49 good harmony that has at all times existed between Panama and Costa Rica. One need not be especially well versed in the science of politics and in diplomatic com'tesy to see at once how wrong it would be to effect such an occupation, which, if based on the Loubet decision, is absurd, and, if based on the Guardia-Pacheco treaty, would mean to force im- properly into action a serious govermnent. I say force into action, because this treaty will be approved by the present legislature, in all probability, because it satisfies the legitimate aspirations of the contracting parties, and it also will be approved in a very short time by Costa Rica, where three days sufhce for convoking the Congress, and where it is intended to convoke special sessions for this particular object. We will now analyze the matter, and examine the three reasons on which the petitioner bases himself: — (1) That the region referred to is an integrant part of the territory of the Republic of Panama; (2) That the Panama authorities have exercised over it jurisdiction without protest on the part of Costa Rica; and (3) That the Republic of Costa Rica occupied this region only since July, 1904, without any other title than that of usurpation. I. The first of said reasons is, — "The region to which I am referring is an integrant part of the Republic of Panama." Above all, it is necessary to distinguish from which point of view Panama should be considered in order to see whetlaer the region of Gandocan is an integrant part of its territory. Let us see whether it means the nation such as it is de facto or such as it ought to be according to right; the nation in potentia or the nation in ado; tlie juridical entity or the real entity. Therefore, if we establish beforehand the difference that exists between right and fact, we shall reach the following conclusions: — Considering the Republic of Panama as a political and geographical entity, the limits of which, according to the juridical title contained in the Loubet decision, reach beyond the Sixaola River, it can be affirmed that the region of Gandocan is an integrant part of its territory. 250 But if it is considered, that if the republic is considered, such as it exists at tlic present tmie, — that is, with respect to tlie extent of its sovereignty and jurisdiction, — if as Repubhc of Panama we designate that territory where it has estabhslied authorities that bring about tire fulfilment of its laws, that collect taxes, and, in short, aU the acts comprised within the exercise of imperium on the part of the sovereign, then the region of Gan- docan is not an integi-ant part of Panama. Therefore, the following theory estabUshed by Mr. McConnell with reference to the preceding is not admissible: — "Those, therefore, are gravely mistaken that assume that an arbitration decision does not produce effects as long as the parties do not come to an agreement as to the manner of carrying it into effect, or that it remains a dead letter as long as a new agreement does not bestow life upon it, in which treaty the basis for its fulfilment are settled. . . . Moreover, as far as Colombia and Costa Rica are concerned, the decision in arbitration acquired, by mutual agreement of the parties, the character of a perfect and accomplished matter. That means that as soon as the decision was promulgated and the parties notified of the same it was ready for execu- tion." In order to refute the above, it is only necessary to read the resolutions of Colombia and Panama * of which I speak later on, and in which become manifest the opinions which the Chancellors of Colombia and Panama have uttered on the subject. On the other hand, it is perfectly logical and natural to sustain that a territory in which a nation has exercised for immemorial time the imperimn and sovereignty does not become de facto an integrant part of another State by the mere promulgation of an arbitration decision in a boundary question. It is necessary that after the decision the boundary should be materially marked, except, of coiu-se, the arcifinious territories. It is fm'ther necessary that, after marking the frontier lines, the transfer of the jurisdiction should take place in the proper way and with the for- malities suitable thereto; that is, of the jurisdiction which used to be exer- cised by the losing State; further, that, after this has taken place, the acts and proceeding should take effect which organize the administration of the public property, subject to the laws that are to obtain in the region thus transferred. * On the suspension of a contract made by R. Roman Romero, for the construction of a railroad between Gandocan and the right bank of the Sixaola; and on the imposing of a fine on Mr. Dolder because of his having talcen a Syrian from Gandocan to Bocas del Toro. 251 We may therefore agree, basing on what has been said above, that, as regards the first reason adduced by Mr. McConnell, it is necessary — to use a magnificent expression of Santiago Perez — to look at facts as facts, and to look for the vindication of right through diplomatic proceedings, retaining in the mean while the circumspection, in order that the same may also be retained in our behalf which is proper and customary be- tween independent, adjoining, and, moreover, friendly nations. II. The second reason is, — "That over it [the said territory] the authorities of Panama have exer- cised jurisdiction without any protest on the part of Costa Rica." To prove this assertion, Mr. McConnell cites two acts of real jurisdic- tion exercised by authorities of Panama, as he says. These acts were: firstly, "a permission to weigh anchor given by the Inspector of the Port of Bocas del Toro to the S.S. Orn consigned to Gandocan, and on board of Avhich the said Inspector put three men of the coast guard in order that they be present at the unloading which was to take place at the said place; the second was the collection effected by the Provincial Tax Collector, also of Bocas del Toro, of the import duties for some materials for railroads which the said S.S. Orn carried." Admitting the truth of these assertions of which the office of the Secre- tary of Foreign Relations has no official knowledge,* we cannot but agree that, if Costa Rica has not protested as yet in writing to our government, it is only because the former government is convinced that these acts are not emanating from the Isthmus Chancellery, but are merely acts of some treasury officials who were not aware of the fact that the tacit agreement called stat^i quo entitled Costa Rica to occupy the territory beyond tlie Sixaola, while the definite demarcation of the boundary sepa- rating the two countries had as yet not taken place. In fact, our Chancellery has recognized the proAdsory jurisdiction of Costa Rica in that territory by means of two acts which refute completely the two that Ave have seen. First, the decision No. 28 of August 2nd, 1904, in which Mr. Adolfo Bolder was condemned in a fine of $200, under the provision of Law 6 and Decree 35 of the self-same year, for having taken to Bocas del Toro a Syrian who came from Gandocan, with whom * This office has demanded a report on these matters without having so far been able to get it. 252 the authorities of Bocas del Toro liad nothing whatever to do while he was there. In its pertinent part this decision reads as follows: — "Although by the Arbitration Decision handed down by the President of the French Republic Gandocan forms a part of the Territory of Panama, this decision has not been carried into effect as yet, and in the meanwhile (and while this is not carried into effect) the Government of this Republic does not exercise jurisdiction in that place, because it is situated mthin the boundaries, the dispute over which gave rise to the arl^itration pro- ceedings and because the statu quo agreed on thus demands it. There- fore the Government of Costa Rica is the present possessor of the place referred to, just as the Republic of Panama is the actual possessor of the Costa-Rican territory on the Pacific, — that is, of a certain part there. The carrying out of the Decision of Arbitration will give to each sovereign the possession of the land that belongs to him, and then the statu quo will have come to an end. But, as long as this does not take place, Gan- docan will remain under the jurisdictional action of Costa Rica, and since it was there that the Syrian, whose name was George, was shipped, with his destination being a territory under Panama's jurisdiction, it is evi- dent that Dolder and Co. infringed the law which prohibits the Cliinese, Syrian and Turkish immigration, and likewise the Decree which regulated the matter, wherefore the Decision under examination (that of the Alcalde of Bocas del Toro) is correct and is herewith declared to be so." This declaration was signed by the then Secretary- of Foreign Relations, Sec- retary of State Tomas Arias. The second act was that where the Foreign Office abstained from com- plying with the request of the Secretary of Pubhc Works in September, 1904, to request the Costa-Rican Government not to interpose any ob- stacles to the work that McConnell had started in Gandocan. This international policy is entirely conformable with precedents from the time when Colombia was sovereign of the territory of Panama, the most notable of which is the suspension of the contract made by Richard Roman Romero in April, 1903, with the government of the Department of Panama. Said Mr. Romero proposed a contract, afterwards entered into, on the construction of a steam tramway between the anchoring ground of Gan- docan and the right bank of the Sixaola. Since on the official maps of those regions there appeared no such anchoring ground, the government believed that this was East of said river, and had therefore no idea tliat an international difficultv could arise as an obstacle for tlie contract. 253 But when the contractor submitted the plan and profile of the work, and stated that the raih'oad or steam tramway connected the bay of Gandocan with the left bank of the Sixaola, it at once took steps to cancel the contract as considering it in violation of that which Mr. McConnell states neA'-er existed, and which is commonly called statu quo. The decision of the government, Vvhich entirely agreed witli instruc- tions received from Bogota, reads textuaUy as follows: — "Office of Governor of the Department; Secretary of the Treasury; ' Sh;ction 3, Number 78, Panama, September 9th, 1903. "Whereas: On April 2nd of the current year upon petition of Mr. Rich- ard Roman Romero, this office entered into a contract with the said gen- tleman, for the construction of a steam tramway which was to connect the small bay of Gandocan with the right bank of the Sixaola River. . . . Subsequently on the 1st of May Mr. Roman Romero transferred said contract to McConnell by deed Number 117 and -ndth the consent of the undersigned. In due season Mr. McConnell presented plan and tracing required by clause 2 of the said contract, when examining the same it was seen at the first glance that the proposing party had made a mistake, undoubtedly involuntary, because the tracks for the railway run from the left bank of the Sixaola river to the Atlantic, to a small bay or inlet which does not appear on the official maps of that region, a mistake for which the concessionary cannot be made responsible, as it goes against his own interests,- nor the Department either, for the same reason, and moreover because at the time when this contract was entered into it had no knowl- edge of the existence and less still of the place where this bay is situated, called Gandocan, since if that information had reached the government before it would not have entered into the said contract. "Now therefore it is resolved "1. . . . "2. As long as the boundaries are not fixed definitely with the Republic of Costa Rica and as long as Colombia cannot enter upon the possession of the land that is coming to it according to the Loubet Decision, the terms of the said contract are suspended and the contracting parties shall not therefore incm- any responsibility, since it has been shown that there was no bad faith on tlie part of either. "Record, notify and publish. "For the Governor. " The Secretary of the Government, Julio Guerra." 254 One must further remember the character of the two jurisdictional acts of which Mr. McConnell speaks and the circumstances that surrounded them, in order to become convinced that the second assertion of which we treated cannot be admitted as a reason in the form in which Mr. Mc- Connell presents it, who plainlj' and clearly asserts that Costa Rica has not protested against those acts. There is no question that no wiitten protest was entered, but it is just as certain that there was no necessity for that. The first of these acts, indeed, as we have seen, was the permission to weigh anchor given to the "Orn," on board of whicli guards were put to see to the unloading of the cargo in Gandocan. What happened as a consequence of this act? The reoccupation of the said place by Costa Rica, and that is where the protest was made (that is, the protest). As regards the second act, — that is to say, the collection of duties for import on railroad materials carried by the "Orn," some of which were discharged in Bocas del Toro, — the Costa-Rican Government had nothing to do with it. It did not even need to consider itself as having been informed. The only government that could protest against that act was that to which the person injured by said act belonged in case — a case not come about yet nor ever likely to come about, — where justice should l^e denied to said person. in. The third reason is,— That the Republic of Costa Rica occupies this region since July, 1904, by way of usurpation. Concerning this Mr. .McConnell says, "I would state that this occupa- tion is due, to all ai^pearances, to a thing which is said to have existed be- tween Colombia and Costa Rica before the pronmlgation of the deci- sion, under name of statu quo or provisional frontier between the two countries"; and he then proceeds that the statu quo has never existed as a formal agreement between Colombia and Costa Rica. In view of the facts there can be no earthly doubt but that there did exist a silent agreement between the two nations, in virtue of wliich Co- lombia exercised since time immemorial, and also after the Loubet arbi- tration decision, sovereignty over the peninsula of Burrica and a large part of the Golfo Dulce, and that Costa Rica has occupied the western part of the Sixaola River. Article 7 of the Gual-]\IoHna treaty, cited by Mr. llcConnell, proves that the state of things* in 1825 was equal to the state of possession! in 1810 (different from what is kno\NTi imder the name of de idi possidetis of 1810), for neither New Granada nor Colombia has ever exercised real sovereigntj' bej-ond the Sixaola. In the Historical and Geogi-apliical Atlas compiled by General of Engi- neers Augustin Codazzi and Mr. j\Ianuel M. Paz there appears the line of the uti possidetis in agreement ■nith the acts of the Spanish Govern- ment; but in the map of Colombia of 1824 this line of the frontier with Costa Rica is only advanced as far as the Sixaola in the North and the Golfito in the South. Since the epoch of independence up to now this hne has therefore been considered as the pro\'isional hne of the boimdaries, because only in the regions which it di\'ides each of the two countries has exercised real sover- eignty, this proAisional occupancy, which took place ■^dth mutual consent, being that wliich is called statu quo. The opinions of the foremost geographers and statisticians of Colombia are conformable as regards tliis detaU. In Apiil, 1880,± the Colombian Chancellery declared that it would only consider as acts of usurpation the jurisdictional acts which Costa Rica would exercise on the eastern side of the principal river-bed of the Culebras River in the Atlantic and hitherward of the Boca del Golfito in the Pacific. With reference to tliis matter an error should be rectified wliich ap- pears in the booklet of Mr. McConnell, which says, citing in his behalf the map of Ponce de Leon of 1864, that the Culebras River is many kilo- meters to the North of the Cabo Mona, wherefore the region of Gandocan comes on the side hitherward. I have not been able to get the map re- ferred to to consult it on that point; but, aside from the fact that there is no cause wh}' one should suppose, as does suppose ilr. McConnell, that this very map was the one which served as a guide to the Colombian For- eign Office to make the above declaration, there also exists the fact that no map shows in these regions another river of importance except the Sixaola, which is also kno'mi by the name of Culebras, Doraces, Tarire, and Telh-e. Beyond the Punta Mona, and up to a small distance from Limon, there * Statu quo. t Uti possidetis is the Latin for coma poseeis ("As you possess") + Note of Luis Carlos Rico copied in the booklet of Mr. McConnell. 256 appear no rivers of relative importance except the two following: the Men or Hone River and the Rio del Norte. Concerning this item one can consult the maps of Betancourt, Peralta, Pittier, and of the Colom- bian Chorographical Conmiission, and of the Hydrograi)hical Office at Washington, made with reference to that of Ponce de Leon 3' Paz (186+) . Inasmuch, therefore, as the Culebras or Doraces River is the same as Sixaola or Telire, I will now quote the opinions to which I referred before. Victoriano de D. Paredes, Plenipotentiary of New Granada in 1853, spoke in favor of the demarcation of the dividing line, such as was then de facto; that is, "from the Doraces or Culebras River until the centre of the Golfo Dulce." General Pedro Alcantara Herran adhered to the above when he proposed as a line not of right, but of con\'eiiience, one which " begimiing in the middle of the principal mouth of the Doraces River which flows into the Atlantic, goes up stream always through the middle of the river-bed, until its som'ce; thence along the smnniit of the cordiUera (mountain range) to the crest of the Serrania de las Cruces, from there to the source of the Golfito River, and from there through the middle of the main river-bed of this river down to its opening into the Golfo Dulce." This line was, as far as its northern part was concerned, adopted in the Herran Calvo treaty of 1856, and when reporting on said treaty Senator Pedro Fernandez Madrid suggested that it be adopted, ^vith various ex- planations, of which the following was the first one: "that the River Doraces, Dorces or Dorado ... is the first river at a short distance towards east from the Punta Carreta, vulgarly called Punta del Mono."* . . . Mr. Angel Diaz Lemos, in his official geography book on Colombia, says, when enumerating the rivers of the departnient of Panama, "the Doraces or Culebras which provisionally marks the boundaries with Costa Rica." The same is said by Carlos Martinez Silva in his well-known geography. In his Compendimn of the History and Geogra^Ay of the United States of Colombia Ricardo S. Pereira describes as follows the provisory frontiers with Costa Rica : on the east side of the Andes mountain range the Cule- bras or Doraces river in its whole length; on the west slope the line de- scends by way of a counter of the so-caUed las Cruces mountain range to the sources of the Golfito River, which follows the line down stream to the Pacific Ocean. These provisory limits are the same which are presented in the respec- * This is a new proof of that which we have affirmed before eoncerniog the fact that Sixaola is the same as Doraces or Culebras River. 257 tive works by Dr. Manuel Ancizar, General Tomas C. de Mosquera, Felipe Perez, and General Antonio B. Cuervo. We have, therefore, proven more than sufficiently that Colombia and Panama have agreed that Costa Rica should occupy provisorily the region beyond the Sixaola, just as the latter nation has not entered any opposition to our sovereignty in Punta Bmuica and Golfo Dulce. This tacit agree- ment, sanctioned by almost a hundred years of mutual consent, constitutes that thing which according to McConnell's affinnation does not exist, and which is called statu quo. It can therefore be seen that it is venturesome and incorrect to assert of Costa Rica that it occupies presently and transitorily the Gandocan region with no "other title than that of usurpation. From the above the absence of any foundation for the reasons on which Mr. Herbert L. McConnell bases himself can be seen, when he petitions the Assembly to make a law whereby the Executive is ordered to take possession of the lands Vjeyond the Sixaola River, occupied by Costa Rica since time immemorial by virtue of an agreement which does not cease to be efficient even if it be only one of custom. Such an action on the part of Panama and its government, aside from the fact that it is contrary to agreement and to the practice of the Law of Nations, would also interrupt a diplomatic negotiation which has been started under fortunate auspices, which, when it has the approval of the National Representatives, will have fixed on the imaffectable basis of cor- diality the friendly relations which should exist between two nations which, owing to their geographical situation and their political conditions, are called to march side by side towards the fortunate futm-e which appears to await them. R. J. ALFARO. 258 REPORT OF A COMMITTEE OF THE NATIONAL ASSEMBLY ON THE MEMORIAL OF McCONNELL. HONOKABLK DEPUTIES: The petition presented to the National Assembly by Mr. Herbert L. Mc- Connell is closely related to one of the most serious problems the nation has to solve, and, therefore, this committee has been compelled to make a careful and thorough investigation, — as careful and thorough as per- mitted the lack of official documents and data which might have thrown light on the doubtful historical points involved. The facts that seem to have been fully established and which have given rise to the petition submitted to our consideration are the following: — After the arbitral decision by the President of the French Republic, which ended the controversy on boundaries between Colombia and Costa Rica, had been rendered, Mr. McConnell entered and cultivated certain lands which were situated mthin the territories assigned to Colombia by the said decision. Mr. McConnell transferred his banana plantations and his properties to the American Banana Company, and this company has been deprived of same by acts of the Costa-Rican authorities. Such proceedings of the govermiient of Costa Pdca are based, as appears from semi-official declarations made by our Department of Foreign Rela- tions, upon the existence of a tacit agreement between Colombia and Costa Rica by virtue of which there had been established a temporary boundary between the two countries pending the decision of the controversy above mentioned. The above suggests the following questions :— 1. Has there actually existed between Colombia and Costa Rica a bind- ing agreement by which temporary boundaries between the two countries were established? 2. When was that agreement entered into, and what are its stipulations and provisions? 3. Admitting the existence of such agreement, may its terms be enforce- able even after the final arbitral decision has been rendered? These questions have to be considered before deciding whether the Re- public of Costa Rica had or at present has the right to exercise unlimited jurisdiction upon the regions assigned to Colombia by the Loubet deci- sion, and, consequently, to do the acts mentioned in Mr. McConneil's e:!^- tensive petition. 259 The said questions can be solved at the same time that the investigation by this committee is made. The official history of the controversy on boundaries between Colombia and Costa Rica, published in the Diplomatic Annals of Colombia, does not show the existence of the temporary agreement mentioned in the first question. An international agreement upon such an important question could not have been entered into and enforced without the expressed approval of the legislative powers of the countries interested in the controversy, and there is no law passed by Colombia containing any such approval. The Molina-Gual treaty, executed in 1825, does not contain any stipulation that can be construed as establishing a temporary boundary, and the sub- sequent treaties were not ratified bj^ the parties thereto. All these treaties contemplated the final and perpetual demarcation of a boundary line be- tween Colombia and Costa Rica, but not a temporary boundary pending the decision of the case. So it is found that the investigation of this important matter does not show the existence of any temporary agreement, either previous or sub- sequent to the arbitral treaty signed in San Jose on December 25, 1880, and exchanged at Panama on December 9, 1881. If there were any agree- ments between Colombia and Costa Rica entered into without the condi- tions required by the constitutions of both countries, such agreements would be null and void, and could not be binding upon the Repubhc of Panama. In connection with tliis point there has been mentioned a tacit agreement or statu quo upon boundaries between Colombia and Costa Rica. In international law there is no such a thing as tacit agreements. Such a term is a contradiction. Agreements are public treaties entered into for specific purposes, and which, for that reason, have a transitory existence, but that circumstance does not exempt them from having the constitutional requirements which are essential to the validity of all treaties. An international agreement cannot be tacit because tacit is what is not formally said, l^ut merely inferred, and the ^vill and the consent of two countries cannot be inferred from their silence, but from positive acts solemnly declared by their public powers in the manner prescribed by their constitutions. The so-called boundary statu quo between Colombia and Costa Rica never was an agreement, but merely an indefinite and undetermined position between two neighbors, which condition was not changed for the reason that the territories disputed were considered of little value. That 260 anomalous and precarious situation, therefore, was brought about by the negUgence of the interested parties themselves: it was not the result of a positive contractual act between them. There was between the two countries a region which was inhabited, and upon which neither of the two countries had jjractical jurisdiction, and the one that first occupied that region asserted afterwards that such occupation was the iacil alatu quo which they want to enforce now as valid, but which, in fact, is nothing more than mutual tolerance between owners of neighboring properties. That act does not establish the least right either between private individ- uals or nations. Therefore, even admitting the existence of the said statu quo, and that thereby the Republic of Costa Rica was entitled to the possession of the left bank of the Sixaola River, it would be necessary to examine what is the term of that possesison. The term statu qiio, used by dijjlomats, means a state of affairs before or after a war, a treaty, etc. (Dictionary of Zerolo e Isaza), and in the case at bar it could refer but to the state of affairs exising on the date of the exchange of the arbitral treaty between Colombia and Costa Rica, to wit, in 1S81. But what could be the purpose or the end of that so-called statu quo between the two parties to the controversy? The purpose could be no other than to leave things just as they were until the arbitrator should render his decision in the case. It would be strange and even absurd to agree upon a jurisdictional statu quo, to avoid conflicts during the period of litigation, and, after the decision ending such litigation is rendered, to argue the existence of that statu quo in support of claims upon things which, by virtue of that very decision, belong to others. The following conclusions are rightly drawn from the above statements : — 1st. There is no official evidence of the existence of anj' temporary boundaries agreement between Colombia and Costa Rica binding, as a public treaty, the Republic of Panama, successor to Colombia. 2nd. Even admitting that such treaty had existed, it could be nothing more than a transitory agreement, the force of which ceased and deter- mined on the day the arbitrator rendered his final decision, when such decision became, in accordance with the arbitral agreement, a treaty binding upon the parties, perfect and irrevocable, and to the upholding of which both countries had pledged their national honor. From the above conclusions it is evident that all the territories assigned to Colombia by the Loubet decision which afterwards became a part of 261 the Republic of Panama are under the jurisdiction of the latter in those points where the dividing line is natural, as is the case in almost all of the line fixed by the arbitrator which is marked by natural accident of the land that can be easily identified. The decision says: — "The boundary between the Republic of Colombia and Costa Rica shall be marked by the slope of the range of mountains from Cabo Mona on the Atlantic Ocean, and encloses on the north the valley of Tarire on the Sixaola River. Then by the watershed between the Atlantic and the Pacific up to the 9° of latitude, approximately, to continue, then, fol- lowing the dividing fine of the waters of the Chiriqui Viejo and the tribu- taries of the Golfo Dulce, ending in Punta Bmica on the Pacific." It will be observed that the line marking the boundary is natural in almost its whole length, the only point where it should be determined by experts being where it reaches the 9° of latitude. Colombia first, and Panama afterwards, had a perfect right to exercise jurisdiction upon all territories ■n'ithin said natural hue from the day the decision was rendered and published, and therefore the acts done by the RepulDlic of Costa Rica to the East of that line cannot be justified, and protest against them should have been entered by the Panama Govern- ment. From the brief examination made by this committee of the maps of the Republic showing the boundary line established by the Loubet deci- sion, it appears that the mouth of the Sixaola and the place known by the name of Gandocan, in wliich are situated the plantations of the Amer- ican Banana Company and the properties mentioned by Mr. McConnell, are located to the East of Punta Mona or Cabo Mona, which is the starting- point of the dividing line marking the hmit of the Costa-Rican territory. From the above it will be clearly seen that those territories belong to the Republic of Panama, and should be under the jmisdiction of its gov- ernment. The Republic of Costa Rica, a country with which we are intimately connected, has not shown on this occasion, as far as those territories are concerned, the respect due to international hai'mony. This is particularly noticealjle in a case like this where the rights of owner or lawful sovereign are involved, which rights have been recognized by a decision from which there is no appeal in accordance with the agreement of the parties to the contract. There seems to have been, on the part of that friendly Repub- lic, a tendency to create in those territories new and powerful interests which might be the cause of future troubles for Panama. 262 Such a situation should not be allowed to continue, as it ^vill have disas- trous results for the country. Now, in regard to the considerations suggested by the petition presented by Mr. McConuell, the conunittee is of the opinion that the said McConnell, as well as the company to which he transferred his properties, have a per- fect right to the protection of the Panama Government, inasmuch as said properties are located within the territory of the Republic. But such pro- tection cannot be given by mere legislative acts which could provide noth- ing that is not already provided for by the national constitution, which marks the territory of the Republic, and establishes the rights of its citi- zens and of foreigners, and by the laws that specify who are the authori- ties that must protect the rights of both citizens and foreigners. The effective protection that a State can give to individuals consists of the acts of the executive officers, not of legislative provisions made in each case of violations of the individuals' rights. In conformity with the above principles this conunittee finds that it would be useless for the National Assembly to study and pass a law instructing the Executive to exercise jurisdiction upon territories on which it is bound by the consti- tution and the laws in force to exercise the same. On the other hand, it would not be proper to pass a law providing protection for the rights of McConnell, or the company represented by him, when the Executive is duty bound to give such protection immediately upon request. However, considering the vast and important national interests in- volved, this conmiittee deems it proper that the National Assembly give emphatic expression to its firm determination to maintain the absolute integrity of the rights of sovereignty of the nation, which rights have not been defended, that their importance demands. This committee, there- fore, submits for your consideration the following resolution: — Resolved By the National Assembly of Panama That the Executive Power be notified that the National Assembly deems it of the highest importance for the interests of the country to exercise of the jurisdiction to which the RepubHc is entitled upon the territories belonging to it by virtue of the decision of the President of the French Republic, rendered on the 11th day of September, 1900, and that, there- fore, the proper executive instructions be issued for the prompt and effec- tive exercise of such jurisdiction. 263 The petition of Mr. McConnell is referred to the Secretary of State and Foreign Relations in order that he give Mr. McConnell the protection provided by law. EusEBio A. Morales, GoNZALO Santos K., Jeremias Jaen, Hector Contes C, Committee. Panama, November 13, 1906. FINAL ACTION OF THE NATIONAL ASSEMBLY OF PANAMA IN ANSWER TO H. L. McCONNELL'S MEMORIAL. Passed 29th Nov., 1906. Let H. L. McConnell be advised as result of his memorial, that the National Assembly has no power to decide the petition which he prefers. The Secretary of the National Assembly, J. D. Arosemena. 264 OFFICIAL DECLARATIONS SHOWING THE STATUS QUO AND THE EXTENT OF THE JURISDICTION OF THE TWO COUNTRIES. These are pai't of official correspondence on file with the State Department at Washington, and prove that the present declarations of the governments of Costa Rica and Panama as to the extent of their respective juriscUctions are strictly in accordance with the estabUshed historical precedents: — TO MINISTER GRESHMI. [FoH. Rel. 1894, 195.] No. 75. Legation of the United States, Bogota, October 1894. (Received November 19.) Sir, — I have taken from the report of the minister of foreign affairs a synopsis of matters wliich appear to me to be of some interest to the Government of the United States. I shall also forward the printed re- port of the minister, iu order that the Department may inform itself more particularly upon any subject. 1. Boundaries between Colombia and Costa Rica. [Translation.] At your sessions of 1892 you were informed of the modification intro- duced into the proceedings relating to our boundaries with our neighbors on the north, in consequence of the arbitration treaties having lapsed. The causes of such lapse could not be more weighty, if we look at the letter and spirit of the treaties, nor more worthy of consideration, in view of the necessity of removing all danger of inefficacy in so important a matter as that of our northern frontier. To maintain that treaties which are void, or of very doubtful force, may serve as titles to extremely valuable rights, is to maintain that a question of this gravity may remain unsettled, or liable to future objec- tions. If the admission of the lapse of the treaties involved the break- ing off of all amicable negotiations concerning the pending dispute, there would be some reason for claiming that those agreements, however de- fective, should continue to serve as a basis in tliis matter; but, as Co- lombia has declared her wish that they be renewed and amended, all claim to the contrary fails to be just or proper. In the correspondence, which I have the honor to transmit herewith, 265 is set forth in detail the course of tliese negotiations in the last phase which they have assumed. Our Government -ndshes the question of our boundary with Costa Rica to be settled in the manner prescribed by jus- tice, to wit, by renewing and amending the treaties as experience demands, and at the time and place which may be most convenient to both coun- tries. It is desired that the treaties should contain stipidations relative to the practical execution of the award, to the costs of the Utigation, to the enlargement of the powers which the arbitrator should have, to harmon- ize, as far as possible, the chief interests of the parties; and our Govern- ment, in acting in this way, is actuated by friendship toward Costa Rica, and acts in confidence of its rights, strengthened by new evidence. The Costa-Ricau Government has at last assented to these proposals, as well as to that wlrich has been made to it to fix upon a temporary boun- dary intended to put an end to the frequent complaints addressed to it by Colombia of the violations of the status quo to which both countries are pledged ■udth respect to the possession of the zone now in dispute. Complaints of this kind were mutual some time ago, owing to the sur- veys made by the Panama Canal Company in the districts adjacent to the Almirante Lagoon. The San Jose Goverimient remonstrated at that time to the Colombian Government respecting the duties imposed by the status quo which had been agreed upon. The explanations on our part, however, were so candid and sincere that Costa Rica has not since found it necessary to make the slightest complaint of Colombia's proceedings. This has not been the case with regard to our rights to present posses- sion of a part of the zone in dispute. The authorities of Panama and Bocas del Toro, the periodical publications of the couutrj'-, the documents pubUshed by Costa Rica, and respectable private indi-\aduals are con- tinually informing the Government that agents of the neighboring Re- public, by what authority is not known, are committing acts of posses- sion incompatible with the duties which have been expressly aclcnowledged. On the Atlantic side, the Costa-Rican Government has definitely admitted that the boundary of present possession is formed by the Sixaola River, so that it has no right to exercise acts of jurisdiction on the right bank of that river; but, notwithstanding this, Costa-Rican agents or i'ndividuals have recently made surveys and drawn up maps on this side of the Sixaola. On the Pacific side, the Costa-Rican Government admitted, as far back as 1880, that it could not occupy territory situated on this side of Punta- Burica, for, at the demand of our Govermnent, it vacated that territory 266 in a manner which may be designated as solemn; and yet it has just been learned, through a perfectly reliable channel, that in that territory, exclusively under the jurisdiction of Colombia, colonists are setthng, under the protection, as is asserted, of the San Jos6 Government and without the consent of the Colombian Government. To these two species of violation of the staitis quo must be added an- other, which affects the whole of the boundary between the two countries. The Costa-Rican Government recently published a geographical map of its territory in which its southern frontier does not even coincide with the extreme claims stipulated in the old treaties, but is drawn much farther this way than the straight line connecting Punta-Burica with Escudo de Veraguas, thus embracing a part of the Colombian territory which has not only been always under the jurisdiction and in the pos- session of the Republic, but forms a part of its undisputed territory. These acts would not benefit Costa Rica, even if the arbitration trea- ties were in force, but would be prejudicial to her rights and interests, because they would prove, before the arbitrator, her disregard of indis- putable and acknowledged duties. Notice having been given of the abrogation of those treaties, and Costa Rica being interested in their renewal, it is hard to understand why, at the very time that she is negoti- ating for such renewal, she puts an insuperable obstacle to it; for Co- lombia camiot consent to the amicable act of fixing upon a temporary boundary and renewing the arbitration compromise, until such irregu- larities have ceased. This consideration has been the reason that the Colombian Govern- ment has hitherto confined itself to repeatedly calHng the attention of the Government of the neighboring Republic (to these facts); and it has received from it the most satisfactory assurances in the sense asserted by. Colombia. It is, however, to be presumed that the intentions of that Government have been thwarted by its agents, as several circumstances render it certain that the duties relative to the present possession of the disputed territory have not been thoroughly performed. The theoretical statement of our rights and the protests against the violation of them have not, therefore, had the desired effect, and in this situation the Vice-President of the Republic has instructed me to ad- dress to the Ministry of Government a communication setting forth the condition of affairs and the necessity of organizing at Panama two peaceful but active and efficient expeditions, to go, one to Punta-Burica and the other to Sixaola, for the purpose of making an investigation at 267 the principal points in those districts, in order to learn the state of things and to make the rectifications demanded by the rights of the Republic. "Marco F. Scjarez. J. A. Unda." JACOB SLEEPER, Charge d' Affaires ad interim. LETTER TO MINISTER GRESHAM. [Foreign Relations 1894, p. 185]. Legation of Colombia, Washington, February 22, 1894. (Received February 23.) Sir, — When, in pursuance of the express instructions of my Govern- ment, I intended to make certain statements to the honorable Secretary of State relative to the boundary question pending between Colombia and Costa Rica, I learned with surprise that the U.S. Government was under the impression that my Government had not accepted the Idnd assurance of its friendly desire for the settlement of that dispute in ac- cordance with the spirit of the treaty that was concluded to this effect, some years ago by the two countries, and I may deem it my duty to dis- pel that erroneous impression, which the course actually pursued by my Government is very far from justifying, as I hope to have the honor to show "by means of a simple statement of what has taken place in connec- tion with this matter. The Government of Colombia and that of Costa Rica, by the treaty of arbitration concluded between them December 25, 1880, and the ad- ditional treaty of January 20, 1886, agreed to settle their boundary dis- pute by arbitration, and to this end they appointed, in the first place. His Majesty Alfonso XII., and afterwards Her Majesty the present Queen Regent of Spain, as arbitrators. According to the treaties referred to, decision was to be pronounced within twentj^ months from the date of the acceptance of the office by the arbitrator, which acceptance took place on the 19th day of June, 1887, so that, according to the express letter of the agreement, his jurisdiction was to terminate February 19, 1889. The last named day arrived, and the decision had not been pro- nounced, and the Government of Colombia informed that of Spain, through the Spanish representative at Bogota, under date of October 9, 1891, that, since the term fixed for pronouncing a decision had long since ex- 268 pired, its jurisdiction was ended, in consequence of which the Govern- ment of Her Majesty the Queen Regent of Spain dechued to have anything further to do with the matter. If a final arrangement on this subject has not been reached sooner, this is the fault of Costa Rica, wMch has claimed that that boundary should be extended until it encroached upon the region to which Colom- bia has a very ancient right of possession, and which is governed by its laws. The contrast between the course pursued by each country is very noteworthy: Colombia, acting uprightly, keeps within the limits of its right; Costa Rica, on the other hand, constantly provokes dissensions by attempting to extend its jurisdiction farther than it is now authorized to do. Both nations should respect the statu quo estabUshed in 1881, which, for Colombia, is law, and for Costa Rica a dead letter. As a re- cent practical case, I may cite, in proof of the foregoing statement, the course pursued by the present Costa-Rican minister of foreign affairs, Mr. Jimenez, who, four years ago, when he filled the same office, admitted that the river Sixaola was the dividing line betAveen the possessions of Colombia and Costa Rica, so that the eastern bank of that river belongs, incontestably, to Colombia, notwithstanding which, and in spite of the protests of the latter country, the Government of Costa Rica continues to place authorities in that region, thereby abusing the patient and up- right attitude of my Government. Fortunately, the time when these annoying differences must cease seems to be not far off. According to the last notes exchanged between the two Governments, there is a willingness on the part of both to con- clude a new treaty, submitting their conflicting claims to arbitration, only that of Costa Rica desires that, when a new treaty is concluded, the vaUdity of the old ones be submittedj to arbitration, to wliich Colom- bia objects as being useless and illegal. A new treaty is what the conditions of the dispute require, both be- cause it is evident that the preceding ones have lapsed, and because provision may thereby be made that the decision that may be pronounced in consequence thereof shall be executed independently of the legislative action of each country, and that it shall determine what is necessary for the payment of the indispensable technical conmiissions that will have to trace the final boundary line. Recent and painful experience induces Colombia to pay special attention to these points, although they are apparently mere points of detail. I will not close this note without declaring, in virtue of express author- 269 ization, that, if the decision of the arbitrator should adjudge to my Gov- ernment control over the territories which it thinks belong to it, it would recognize the rights of private parties therein, and the transfers of actual ownership made by Costa Rica. Citizens of the United States or any other foreigners that have obtained concessions of unimproved lands or who, for any other just cause, are the owners of lands, shall be main- tained in possession thereof, since every valid title is to be respected. Hoping that I have obtained the friendly purposes wliich I had in view , I have, etc. Julio Rengifo. •^ MR. SUAREZ TO MR. JIMENEZ. [For. Rel. 1894, p. 184.] Republic op Colombia, Department of Foreign Affairs, Bogota, January 12, 1894. Mr. Minister: Once more, and obliged by recent reports received by the Colombian Government, I have the honor earnestly to call your excellency's atten- tion to the grave fact that Costa Rica, as is asserted, is performing juris- dictional acts on the right bank of the river Sixaola, which river, as that government has admitted, is to mark the border line of the present pos- session of our two countries. If this fact is so, the Colombian Govern- ment, maldng use of the right which is conferred upon it by the said ad- mission, and complying with the common obligation which has for some time bound the two republics, namely, to respect the stahi quo of the international possession, will be obhged to proceed to positive acts in the defence of the im/iolability of the said territory. It is not to be supposed, however, in view of the wisdom and fairness which distinguish your ex- cellency's government, that it will be necessary to proceed to such extremes. Wherefore, once again, I beg your excellency to do all in your power to stop that occupation, against which, to protect the interests of Colombia, I solemnly protest. I also avail myself of this opportunity, Mr. Minister, to again call yom- excellency's attention to the need of completing, as soon as possible, as a practical demonstration of incontestable force, the adjustment of the provisional boundary between Colombia and Costa Rica. The mutual relations of the two states being so cordial, and the incHnations being so sincere in favor of a final settlement of the boundary question by means 270 of arbitration, it is evident that the complaints arising from the want of such temporary arrangement may have a pernicious effect upon these kind feeUngs. I beg, etc., (Signed) Marco F. Suarez. MR. JIMENEZ TO MR. SUAREZ. [For. Rel. 1894, p. 190.] Republic of Costa Rica, Department of Foreign Affairs, San Jose, February 13, 1894. Mr. Minister: I liave had tlie honor to receive your excellency's communication of the 12th of last January, in which you call the attention of my government to the fact that Costa Rica is committing jurisdictional acts upon the right margin of the "Sixaola," in -vdolation of the statu quo in force be- tween the two countries. Therefore, my govermnent, always jealous in regard to the fulfilment of its international duties, feels obliged to in- form your excellency that it has not dictated any act in deterioration of the statu quo, and that, in order to obtain the most accurate solution of this delicate matter, it has requested information from the respective authorities, and hopes that the Colombian Government will have tlie kindness to expressly state the acts which led to its reclamation, in order to proceed according to the dictates of justice and international law. I have also the honor to inform your excellency that my govern- ment has named two scientific commissions, one under the charge of Naval Captain Don Eliseo Fradin, and the other under the charge of Don Enrique Pittier, the object of the first commission being to make a plan of the Sixaola, Tarire, Tiliri, or Tilorio, of the Yurquin, tributary of the latter, known in Colombia under the name of Dorado, or Doraces, aside from other rivers and places of that locality, situated in Costa-Rican territory; and the object of the second commission being to astronomi- cally establish the position of the Sixaola, or be it the point at which the Tiliri or Tilorio flows into the Atlantic, and the spot at which the latter joins the Yurquin, whose right bank is considered as the limit of the statu quo; and also of the Lipurio, or be it San Bernado, situated unquestion- ably in Costa-Rican territory, and of other important places of that region. The said commission left this capital eight days before the receipt of 271 your excellency's communication. I therefore do not believe that it could have referred to them; but I take this opportunity to inform your ex- cellency that these commissions have been appointed for the study of the frontier territory. After the foregoing explanation, which is a guarantee of the fair dealing of my government, I trust that the Colombian Govern- ment will be satisfied; and, with the assurances of my high appreciation and distinguished consideration, I remain, etc., (Signed) Manuel V. Jimenez. MR. SUAREZ TO MR. JIMENEZ. (For. Rel. 1894, p. 191.) Republic op Colombia, DePAKTMENT of FOEEIGiN Al'FAIRS, Bogota, May 18, 1894. Mr. Minister: I have the honor to refer to yoiu- excellency's notes of the 12th and 13th of last February, relative to the boundary controversy now pending between Colombia and Costa Rica. In your first note your excellency accepts, in the name of your govern- ment, this govermnent's proposal to renew the treaty in regard to the arbitration of the boundaries and to decide upon a provisional frontier. In your second letter your excellency explains certain acts touching the interruption of the statu quo, which has been in force since 18S0, in regard to the zone of territory at present in dispute between Colombia and Costa Rica. In regard to this last point your excellency assures my government that it duly appreciates the fact that Costa Rica has not performed, is not performing, and will not perform any act in deterioration of the statu quo; that is to say, it has not performed acts of dominion, jurisdiction, or occupation in the territory extending along the right bank of the river Sixaola. This declaration is very welcome to the Colombian Govermnent, which hopes that certain public acts, such as those referring to the succession of Temistocles Penaranda, and others about which the authorities of Bocas de Toro have complained, committed by the citizens of Costa Rica, win have been distinguished by the goverimient of San Jose. It also hopes that explicit instructions will be given the commission of engineers, 2T2 about whom your excellency speaks in your note of February 13, not on any account to extend operations to the territory on this side of the said river, for such an act would violate the obligations of the two nations, and render impossible further negotiations, as I have already had the honor to inform your excellency. I improve this opportunity to call yoiu- excellency's attention to an act which can also hinder the termination of the matter which occupies us, unless immediately rectified by the Costa Rican Government. I refer to a map published not long ago, in which, instead of continuing to designate the boundaries between the two countries by the line which marks the most extreme claims of Costa Rica, it has been advanced much more toward the east, so that not only the possible rights of each nation are not taken into consideration, but an evident act of intrusion has been committed upon territory which has not been in dispute. The Colombian Govermiient hopes that yom' excellency's government will rectify as soon as possible this error, and declare that it is without signification, not only in regard to the rights, but also the pretensions of Costa Rica respecting Colombian dominions. As soon as this has been rectified, this ministry will be pleased to enter into negotiations with that under your excellency's worthy charge about the settlement of the provisional boundary, and the removal of the arbitration treaty in regai'd to definite frontiers, to which end the respective commission \\dll shortly be given to the envoy extraordinary and minister plenipotentiary of Colombia in Washington. I have, etc., (Signed) Marco F. Suarez. 273 CHAPTER 9. Containing a full citation and explanation of the laws of Colombia and Pan= ama relating to the cultivation and denouncement of unoccupied pub= lie lands, and showing that no such laws were in force in the depart= ment and republic of Panama. THE GENERAL LAWS OF COLOMBIA CITED BY H. L. Mc- CONNELL AS SUPPORTING HIS RIGHT TO PLANT. [Translation.] 41. Any individual who occupies uncultivated land pertaining to the Nation for which he has not made application by the law, and who es- tabhshes on some a habitation and work, acquires the right of proprie- torship over the territory which he cultivates, whatever may be its ex- tent. (Art. 1, law 61 of 1874.) 42. The law maintains the principle, that the ownership of the waste lands shall be acquired by their cultivation, whatever may be their ex- tent, and orders that the Public Ministry officially protect the cultivators and settlers in the possession of said lands, in conformity with the law 61 of June 24, 1874. (Ai't. 1, law 48 of 1882.) 43. The agents of the Public Ministry will officially protect the culti- vators of the waste lands, it being the duty of said agents to give them legal voice in the judgments of properties which may be moved against them. (Art. 6, Law 48 of 1882.) 44. If there is on the waste lands pasturage for cattle, or the plan- tation of cocoa, coffee, sugar cane or other class of perennial planting, the colonist, besides acquiring the property which is conceded to him by the foregoing article (Nos. 41 and 42) will have the right to be adjudged., gratuitously a portion of the adjacent territory, equal in extent to the part cultivated. The Executive Power will fix the rules which should be observed to facilitate for the colonist the demarcation and adjudg- ment of said adjacent territory. (Art 2, Law 61 of 1874.) (The full text of these laws appears on pages .) 274 [Copy.] RiCARDO Aeias, Special Fiscal Commission Dr. Eusebio A. Morales, of the Commissioners. Republic of Panama, Wm. Nelson Cromwell, 49 Wall Street, Room 1212. Counsel. New York, December 20th, 1904. [Tbanslation by Mr. Macgrane Coxe.] {Fol. 15 of the Memorial.) Me. Herbert L. McConnell, Washington : My dear Sir, — With much pleasure I comply \vith your request that I should state my deUberate opinion Avith respect to the rights which you have acquired as cultivator of certain lands situate in the Province of Bocas del Toro, Repubhc of Panama. In consequence of the vexatious question with respect to the terri- torial hinits between the Repubhcs of Colombia and Costa Rica, the two countries agreed upon a status quo by which they bound themselves not to exercise jurisdictional acts upon the opposite banks of the river Six- aola while the controversy respecting the boundaries should be pending before the designated arbitrator which was first the King of Spain and afterwards the President of the French Republic. The decision was rendered on September 11, 1900, and by it was de- clared that Colombia had jurisdiction of all the territory included in the valley of the river Sixaola. From the very day on which this unappeal- able decision was rendered the status quo existing between the two coun- tries became virtually abrogated, since its sole object had been to avoid conflicts of jurisdiction during the period of the litigation. The controversy having been settled {concliiida) by an arbitral deci- sion, which, in so far as it referred to the river Sixaola and its valleys, would not point to any kind of doubt, those territories became a part of the Republic of Colombia, without any further controversy or proceed- ings, since the delimitation or demarcation of the Unes by means of sur- veys is hardly a material act and can in no way affect the substance of the rights declared by the arbitrator. Considering this territory as under Colombian jurisdiction from the 275 date on which the decision was promulgated to the two adjoining nations, Colombia has ever since been empowered to exercise the rights of domin- ion and sovereignty and both its citizens and foreigners had the right to enter these regions under the protection of its laws and to inhabit and cultivate them. II. Accepting these premises as absolutely correct, if you have occupied uncultivated lands embraced in the zone adjudicated to Colombia by the arbitral judgment of President Loubet, your rights, as cultivator, in con- formity with the laws of Colombia, are indisputable. According to the laws, 61 of 1874 and 48 of 1882, which I do not copy verbatim since I have them not now at hand, every cultivator of national lands acquires the ownership of the territory which he cultivates, and, if the cultivation consists of permanent plants, he acquires in addition the right to have adjudicated to him a portion of adjoining lands equal to that cultivated. As a consequence of this ownership, such cultivators have the right to introduce on their plantations every kind of improvements for their in- ternal advantage, such as railways, electric plants, wharves, etc., etc. Solely in a case where the party interested shall desire to offer these ser- vices to the public or to extend them beyond the occupied territory has the public authority the right to estabhsh restrictions or especial condi- tions. The laws of the Republic of Colombia ^^'hich grant these rights have been in force without interruption in the Republic of Panama since the day of its separation, and they are appKcable to-day to citizens of Costa Rica and foreigners alike. I am of the opinion, therefore, that you have acquired a perfect right to the ownership of the territory in which your banana plantations are and that the RepubUc of Panama owes you the legal duty to give you efficient protection in the enjoyment (or possession) of this right. I am, sir, Your obedient servant, (Signed) Eusebio A. Morales. 276 Decree No. 92 of 1881 (9 of February) By which all transfers of unappropriated land situated in the state of Panama WERE SUSPENDED. The President of the United States of Colombia : Whereas the Senate, in its session of the fourth of the current month approved by unanimous vote, the following motion : "The executive power is to be requested to suspend all sales or adjudi- cation of unappropriated lands in the state of Panama: except the ad- judication to farmers who have acquired the right, until this congress legislates on the subject." And whereas on account of the project to excavate an inter-oceanic canal, which is now on the way to realization, the tracts of land which the nation possesses in that state may in time acquire a great value, and con- sequently it is wise to wait until express laAvs are enacted on the manner of disposing of such lands, either for the benefit of the pubhc treasury, or in order to assist the same undertaking so as to faciUtate it, Decrees That from the date of the present decree all the adjudica- tions and sales of unappropriated land situated in the state of Panama are suspended. Therefore, the president of the state shall not decree any provisional adjudication except only in favor of such farmers who, at the date of the pubhcation of this decree in the official gazette of the state, hold rights acquired according to the laws, which they will have to prove in due form. Given at Bogota, 9th February, 1881. (S) Rafael Nunez, Secretary of the Treasury. (S) tVntgnio Roldan. I hereby certify that the foregoing is a true copy of Decree No. 92, dated February 9th, 1881, as published in the Official Gazette of Panama (No. 574), under date of June 30th, 1892; said Official Gazette being t'ne official organ of the State, or Department, of Panama, and Repubfic of Colombia. 277 In Witness Whereof I have hereunto set my hand and official seal this 14th day of April, 1906, at Bocas del Toro, Republic of Panama. L. F. Ryan, American Constdar Agent. (Seal) The following are authorities showing that Decree No. 92 of ISSl re- mained in force. Resolution Concerning the Grants of Unappropriated Lands. Secret-VRT of the Treasury, Bogota, November 12, 1889. In \ievc of the preceding memorial and Whereas the sale of unappropriated lands in the extinct state of Pan- ama has been forbidden by an Executive Decree, number 92, of February, 1881, and whereas the said interdict is in force at this moment, the grants issued in favor of said extinct state and which b}^ virtue of sales of its Government, have passed into the hands of private parties, would at the present moment not have au}^ value whatsoever, unless they would be made adjudicable in some unappropriated tract of the repubhc, since at the present moment they are only so in Panama, Now THEREFORE it is decreed, That the grants issued on the 26th of September, 1881, in favor of the extinct State of Panama are made to extend to adjudications in any unappropriated tract of the Repubhc. The Secretary, Felipe F. Paul. (Official Gazette, number 7961.) Bogota, AprU 24th, 1S97. To HIS Excellency the Governor of the Department, Panama : I have the honor of referring to the esteemed communication of j^our excellency, number 18th of the 11th of February last, wherewith you for- wai'ded to the finding of this ministr}' the decree issued by the government on the 9th of Februaiy last, bearing on a consultation of the Alcalde of Bocas del Toro concerning a dispute that arose between Messrs. Teodoro 278 and Andres Nunez on the boundaries and possession of the meadow which they are occupying. Since the adjudications for any unappropriated lands in this department having been suspended absolutely, on whatever grounds they are sought for, according to Decree 92 of February, 1881, this ministry is of the opin- ion that there is no reason that to the individuals, between whom the dis- pute has arisen which gave rise to the decree and the consultation of your excellency, the character as colonists or cultivators, nor that they should be given the rights as such. The provision of article 5 of the I^aw VI. of 1874 which refers to con- troversies or disputes between settlers of unoccupied lands who' have set- tled on one and the same locahty, A\ithout there existing any prohibition to settle there, does not obtain here, since the unoccupied land of Panama is not awardable. The ministry is therefore of the opinion that it neither falls to you to adjust differences nor revise any decision caused by the occupation of lands, between individuals who have settled there subse- quent to the prohibitory decree numbered 92 referred to. Manuel Esguerra. Office of the Secretary of the Treasury. Section 3, Decree No. 95. Panama, AprU 1st, 1902. Mr. Pablo Pinel petitions by means of the preceding promemoria for the reconsideration of the order of this administration of the 1st of March last, passed pursuant to a petition made by him, and further petitions that the petition made by him be decreed conformable, said petition bearing on the adjudication of twelve hundred hectares vmappropriated land, by means of a foregoing substantiation of the matter, conformably to the decrees, regulations and executive orders obtaining in the matter, which he asserts should in no case be passed over. The petitioner says that "the only foundations which serve as basis for rejecting a priori his claim, rest on the fact that the national government upon soHcitation of the senate of plenipotentiaries issued decree Number 92 of the 19th of February eighteen eighty-one suspending, as says the Secretary of the Treasury, from that day the adjudications of unappropri- ated land situate in the State of Panama, and further on the fact that by a written communication number 18 of the 7th of February eighteen ninety- 279 seven the administration of the Department solicited from the National Government the reconsideration and modification of the said decree in that meaning that the prohibition treated therein be withdrawn, to which request the National Government would not accede, considering that the reasons which were taken into account when issuing said decree were still in existence," and to show that none of them is admissible he makes the following declaration ; — "In the first place the reservation made of a predetermined surface of unappropriated land in this department had for sole object to guarantee to the said company the right granted to it to select those [lands] which came to it pursuant to the concession, but inasmuch as the same had de- termined the zone or zones which it found suitable to take for itself, the said reservation no longer has any raison d'etre, and there disappears there- fore the prohibition to which the decree cited by you refers. With all the more reason since in the region of the Darien to which my petition refers a considerable number of hectares was adjudicated to the same company, and it could not there in any manner or shape claim any other adjudica- tion." "The spirit of the decree quoted was not and could not be that the gov- ernment should bind itself perpetually not to alienate its unappropriated land, and not to be able to grant the usufruct of them contrary to (the spirit of the legislation regulating this matter. The tnistworthy history thereof and its object so clearly manifested in its context show evidently that the prohibition or reservation had but a temporary character, which ceased to exist as soon as the object was attained which the government when issuing said decree had in mind. "Such was the understanding of the Executive Administration of Vice- President Caro when he dictated decree number 109 of the 9th of February, eighteen ninety-four, issued more than thirteen years later than the one which is cited by the Secretary of the Treasury, and which I take the liberty of inserting here in full in order to bring forth the inapphcability of the decree of wWcli I complain. Decree number 109 of eighteen ninety-four, February 9th, by which is abrogated Section 5 of Ai-ticle 1 of the decree of the 15th of Septem- ber, 1868, in which certain parts of the unappropriated land of the nation are destined for public use. The Vice-President of the Repub- lic, in charge of the Executive. Pursuant to the report of the Secre- tary of Foreign Relations, of the 27th of November, eighteen ninety- 280 three, and considering, first that the said decree was issued especially for the purpose of reserving a certain area of the unappropriated lands in anticipation of the fact that the line of the interoceanic canal pro- jected should follow the course of the Atrato River, a way which has been declared impracticable, aside from the fact that it was decided that for the digging of the said canal the region adjoining the Panama Railroad should be adopted, and considering, second, that the canal company has already taken in the region of the Darien a considerable part of the land coming to it, and that at the present time there does not exist any agreement with said Company on the part of the govern- ment, lo reserve for it any predetermmed zone, since the same must solicit like any other private party the adjudication of such land as it may need, in any other part of the territory of the Republic. From all these reasons the validity of section number 5 referred to, whereby a considerable amount of the unappropriated lands are withdrawn from agriculture and colonization: Now, therefore. Decrees Sole Article: Section 5 of the decree of the 15th of September eighteen sixt3^-eight is abolished. Given at Bogota, Februarj^ 9th, eighteen ninety-four. M. A. Caro. The Secretary of the Treasury, Pedro Bravo. Ofjicial Gazette, No. 9401. "February 23rd, 1894." "Section 5 mentioned in this decree is the one which approves the pro- hibition imjjeding the aUenation of certain unappropriated land, because the same is reserved for certain pubUc uses, and inasmuch as this has been especially abrogated, as we have just seen, it would not be possible to found on this disposition the order which I have proposed to impugn. Nor can it be argued that the suspension treated of in decree number 92 of eighteen eighty-one was instituted subsequently to that which now appears abrogated, because although no reference thereto appears in it, it also is abolished, because it contains the same prohibition, and as there exists, as it really does, another subsequent decree, which settles the matter in- tegrally. An accepted rule of construction holds that when a later pro- vision is contrary to another and preceding one, and if both antedate the fact to be judged, the later provision prevails. "If there were, therefore, some ignorant minister who declared in the conmiunication of which you speak, that there still existed the reasons for maintaining the contested prohibition, this is of no account, inasmuch 281 as the orders or resolutions given administratively by this judge are not sufficient to establish a precedent. "Aside from these considerations, in themselves powerful enough to carry to your mind the conviction that an error has been committed, an- other circumstance contributes to corroborate my petition; and that is, that adjudications have been effected of unappropriated lands in the same district of Darien, that is, the place for the adjudication of the land which I claim, in a recent period of time, and that the corresponding grant has been furnished by the Secretary of the Treasury of this Department. "Upon searching the archives, it will be found that on the 27th of No- vember eighteen ninety-seven five thousand hectares of unappropriated land were adjudicated in exchange for territorial titles, to Mr. Luis Galbois in the valley of Seteganti, in the Corregimiento of Cana, in the district of Pinogama, province of Panama, and department of the same name, and that the Executive approved everything." To dispose of the matter, the following was taken into consideration : In its decree of the 15th of September eighteen sixty-eight, the national government considered: First: that the opening of an interoceanic canal in Colombia territory has been declared by law to be of pubhc utility; Second: that the adjudication to private persons of unappropriated lands situate in the immediate neighborhood of the plan of the ways through which the interoceanic canal could be practically laid out, would increase the difficulties for the realization of this work, and that the executive should prevent as much as possible such difficulties, within the sphere of its constitutional functions, abstaining therefore from the adjudication to private parties of said land, considering it necessary for pubUc service ; Third: That for reasons also of importance for public service the Republic should preserve the ownership of the unappropriated land near the mari- time ports whose direction and administration are within the province of the general government, and likewise the ownership of such land where there are salt mines or salt wells of national ownership even if the same are not in process of exploitation; and keeping in mind the different routes through which interoceanic canals or railroads are considered practicable according to the different explorations made up to that time in the terri- tory of Colombia, it declared applicable to pubhc uses the unappropriated land comprised between 6 degrees 30 minutes and 8 degrees 20 minutes latitude north, and 2 degrees 20 minutes and 3 degrees 30 minutes west longitude of the meridian of Bogota. 282 By decree number 92 of the 9th of February eighteen eighty-one, the General Govermnent in consideration of the fact that the senate of pleni- potentiaries in its session of the 4th of that month approved unanimously the following proposition: " The executive is urgently requested to suspend all lease or adjudication of unappropriated land in the state of Panama, excepting the adjudication to farmers who have already acquired the right thereto, until congress legislates on the subject," "and for the reason that, on account of the project of excavating an interoceanic canal which is near its realization the land which the nation possesses in that state may finally reach great value, and that therefore it is prudent to wait until express laws are made concerning the manner of disposing thereof, either to the benefit of the national treasmy or for the purpose of furnishing assistance to the said enterprise so as to faciUtate it," [the government] declared suspended the adjudication and leasing of unappropriated land, situate in the state of Panama, and ordered that the President of the State should not decree any further provisional adjudications, except in cases indicated there. The prohibition involved in the decree of the 15th of September eigh- teen sixty-eight is not the same as the one to which the decree 92 of eigh- teen eighty-one refers, because they obey different motives, the first one being decreed for the purpose of obviating difficulties for the construction of the interoceanic canal, and the second is a purely fiscal measure, having for object the benefit of the state treasury. Such was without doubt the understanding of the senate of plenipotentiaries when it, in spite of the validity of the decree of the 15th of September eighteen sixty-eight, re- quested the issue of the one of eighteen eighty-one already mentioned, and such was also the conception of the executive when issuing decree 92 of the same year. Decree 109 of 1894 abrogates section 5 of the decree of the 15th of September, 1868, but it neither abolishes nor even mentions number 92 of 1881, and, although it is certain that a rule of construction in our law holds that in case one subsequent law is contrary to another preceding one, and if both antedate the fact to be tried, the subsequent one prevails, it is also certain that special provisions such as the prohibition established by decree No. 92 mentioned prevail over those which may have a general character. The copy submitted by Mr. Pinel of the telegram sent from Bogota by the Secretary of the Treasury to the Governor of the Department author- izing him to let the petition of Mr. Galbois proceed (in January, eighteen ninety-seven) is an evident proof that at that time it was not assumed 283 that decree number 109 of eighteen ninety-four abrogated number 92 of eighteen eighty-one, because tliat special authorization would not have had any sense without the existence of the said prohibition. The national executive has considered decree 92 of eighteen eighty-one in force since the issue of No. 109 of 1894, and so has stated in a letter sent to the Governor of the Department by the Secretary of the Treasuiy, No. 1074, tliird section, department of unappropriated lands, imder date of the 24th of April, eighteen ninety-seven (subsequent to the authority granted Galbois), said letter being pubUshed in No. 1060 of the Panama Gazette, and which reads as follows:— Republic of Colombia, Secretaey of the Treastjrt, No. 1074, Section 3, Department of Unappropriated Lands. Bogota, April 24th, 1897. To THE Governor op the Department, Panama: I have the honor of referring to the esteemed communication from you under number 18 of the 11th of February last, wherein you send to this secretary for its final decision the resolution issued by j^our office on the 9th of February last, because of an inquir}' on the pai't of the Alcalde of the District of Bocas del Toro, concerning a dispute wliich has arisen be- tween Messrs. Teodoro Cambes and Andres Nunez, concerning the demar- cation and possession of the land which they occupy respectively. "Inasmuch as absolutely aU the adjudications for any title whatever, of unappropriated land in your department are suspended, pursuant to a decree number 92 of Febmary eighteen eighty-one, the ministry is of the opinion that there is no reason Avhy the indiAdduals between whom the dis- pute has arisen which has been the cause for the resolution and also your inquiry, should be given the character as colonists and cultivators, nor why they should be recognized as possessing the rights of such. "Therefore the provision of article 5 of law 61 of eighteen seventy-four does not apply in this case, inasmuch as said article refers to controversies and disputes between settlers on unappropriated land who have settled in one and the same locahty mthout there being any legal impediment pre- venting the adjudication to them, and inasmuch as the unappropriated land in the department of Panama is inad judicable, this office is of the opinion that it is not pertinent to it to decide controversies or pass on orders originated through the occupation of land of individuals settled there, subsequent to the proliibition effected in the said decree number 92. 284 "At the same time I regret to inform you that as to-day still the reasons prevail which were considered as important for the issue of such a decree, it is not possible to accede to your desire concerning its reconsideration, and modification. "I return to your office on four written sheets copy of the resolutions wliich you sent with the letter to which I reply. God preserve you. "Manuel Esguerra." Inasmuch as, as has just been shown, the prohibition entailed by decree 92 of eighteen eighty-one is in force, tliis office is not competent to give free course to anj' petition concerning adjudication of imappropriated land and it is useless to argue contrary thereto, that in eighteen ninety-seven there was issued a grant of the Secretary of the Treasury of the Department for adjudicating a parcel of this land. First, because this was done by express order of the Secretary of the Treasury of the Nation, who, by law, intervenes in all adjudications made; and, second, because even in the case of this express authorization not having intervened, an}' set wliich vio- lates a law in force does not form any authorization to commit the same violation, nor does it in any case establish a legal precedent. The party interested, however, has still the recourse to the Secretary of the Treasury, and to try to obtain there an authorization of a similar character, as that obtained by Mr. Gaibois, and the undersigned governor suggests tliis course to him. For these reasons It is Resolved, That there is no cause for revoking the decree of this office, number 92, of the 1st of March last, issued in strict compliance with the specific orders of the national executive. Further report to the Secretary of the Treasury is to be made, for a definitive decision in this important matter. The Secretary of the Treasury. A true copy from the book of resolutions of section 3, for the month of April, nineteen hundred and two, entered on pages 166 to 179. Panama, July 12th, nineteen hundred and six. The Sub-Secretary of the Treasury. (Signed) The laws in force when the RepubHc of Panama was created, were con- tinued in force. 285 Deckeb No. 4 of 1903 (November 4) On the Provisional Organization of the Republic. The Provisional Government Council of the Republic decrees: Only Article. In the RepubUc of Panama shall govern the laws which have been in force until now, with the modifications and alterations which the poHtical change that has been effected requires, and with those which the provisional government decrees in subsequent decrees. To be published. Given at Panama, November 4th, 1903. J. A. Abango. Fbdeeico Boyd. ToMAS Arias. The Secretary of State Eusebio A. Morales. The Minister of Justice Carlos A. Mendoza. The Secretary of the Treasury Manuel E. Amador. Secretary of Foreign Affairs F. V. de la Espriella. Minister of War & Marine Nicanor A. de Obarrio. A specific ruling of the Executive of the Republic of Panama that Decree No. 92 of 1881 remained in force in that Republic. Republic op Panama. Ministry of Public Works. Section 2a, No. 264. Panama, July 11th, 1906. Mr. Julio J. Fabrega, in a promemoria dated the 29th of June last, di- rected to His Excellency the President of the Republic, submits the fol- lowing inquiry: First: Whether decree number 92 of eighteen hundred and eighty-one, issued by the President of the United States of Colombia, and by means of which the adjudication of unappropriated land in the then sovereign state of Panama was in force on the 3rd of November, nineteen hundred and three. Second: And if the said decree has ceased to be in force in the Republic of Panama, "within what date and for what reason." Third: And if at the present time said decree is in force "since what date and for what reason it thus obtains." 286 To resolve on the three points transcribed, the following is considered: — Tliat since the issue of decree number 92 of eighteen eighty-one the pe- titions which have been submitted at different times for the adjudication of unappropriated land in the sovereign state of Panama, afterwards de- partment of the same name, and lately Republic of Panama, have been rejected because of the prohibition entailed by the said decree, not having been considered as a temporarj'- measure, but always as a general measure as long as no law or decree should have abrogated it expressly. This is confirmed, because although Mr. Miguel A. Caro, in charge of the Executive Power, abolished in his decree 109 of eighteen ninety-four section 5 of decree of the 15th of September, eighteen sixty-eight, which contained a prohil)ition similar to the one contained in the aforementioned decree, lie did so only for the purpose of obviating difficulties for the construction of the canal, for the French canal company, but the Colombian government in said order did not even cjuote in the considerative part the said decree 92, whence it must be deduced that there was no intention of modifying a measure tending to benefit the national treasury, through the greater value which the unappropriated land situated in the territory of Panama would soon possess because of their being in the neighborhood of the im- portant works of that enterprise. Therefore, both at the time when Pan- ama was a sovereign state, and when it became a part of the central gov- ernment, in eighteen eighty-six, the secretary in charge of the branch of unappropriated lands has never in his administrative provisions or in his bills intended a modification or abolition of decree 92 of eighteen eighty- one, the issue of which was requested by the very senate of plenipotentiaries. Nor is it of any use to allege that shortly after the political transformation of eighteen eighty-six the French company entered in moram and that the work on the canal was suspended. Considerations of greater and different, value induced the secretary of the treasury, Mr. Paul, in his order of the 12th of November, eighteen eighty-nine, to state clearly that the decree was in force. Also Mr. Esguerra, holding the same portefeuille, and pur- suant to an inquiry directed to him by the governor of the department of Panama, said and resolved in the same sense in his letter of the 24th of April, eighteen ninety-seven. For the sake of discussion it might be added here that law 48 of eighteen eighty-two like other administrative provisions of a general character, on the mode and manner of making adjudications of unappropriated land, should have supplanted the decree of which we have been speaking; but, if the national executive for reasons of a high public utiUty issued the same, 287 it is clear that he established an exception and a special measure which must prevail by force of principles and juridic reasons. The above shows therefore incontrovertibly that decree number 92 of eighteen eighty-one which proliibited the adjudication of unappropriated lands on the isthmus was in force in Colombia from the date of its issue, up to the 3rd of November, nineteen hundred and three, the day on which the new Repubhc of Panama was proclaimed. When the public authorities organized, the legislative body of the coun- try after issuing the constitution, and perhaps for the purpose that the decree number 92 should not be exposed to the danger of being abrogated, issued by executive provision law 61 of the 31st of May, nineteen hundred and four, which prohibits the adjudication of unappropriated land in the territory of the Republic, until laws on the subject should be passed. In view of the foregoing considerations. It is Resolved First: The executive decree number 92 of eighteen eighty-one was act- ually in force on the 3rd of November, nineteen hundred and three ; Second: The said decree ceased to be valid in the Repubhc of Panama from the time of sanction of law 61 of nineteen hundred and four, which replaced it in its effect. Thus the three questions of the promemoria which originates this order are rephed to and resolved on. Register, communicate and publish. Signature of his Excellency the President of the Republic. Sub-Secretary in charge of the Office, Ladislao Sosa. A true copy. The Sub-Secretary of the Office, Ladislao Sosa. Ricardo Ai'ias, Secretary of State and of Foreign Relations, certifies that the above signature, which reads "Ladislao Sosa" is authentic, and that Mr. Sosa occupies the office of Sub-Secretary of PubUc Works. Given at Panama on the 12th of July, 1906. Ricardo Arl^s. 40 cent revenue stamp cancelled. 288 [Form fob Authentication of Signature.] CoNSULAH Service, U.S.A. Panama, Panama, July 14, 1906. I, Arnold Shankliri, Consul General of the United States at Panama, Panama, do hereby certify that the signature of Ricardo Arias, at the foot of the paper hereto annexed, is his true and genuine signature, made and acknowledged in my presence, and that the said Ricardo Ai-ias is personally known to me. In witness whereof I have hereunto set my hand and affixed the seal of the Consulate General at Panama, Panama, the day and year next above written, and of the Independence of the United States the 13. (Stamp.) Arnold Shanklin, (Seal) Consul General of the United States. Law 61 of 1904 (May 31) A Law of Panama on the same subject. By force of which temporarily the adjudication of national unappro- priated land is suspended. The National Convention of Panama decrees Article 1. While and until the National Convention enacts the law which will regulate the adjudication of unappropriated land for agricult- ural purposes and the exploration of forests, the proceedings which are pending on adjudication of land or which might be presented in the offices of competent administrative officials are suspended. Article 2. The president of the RepubUc will communicate this decree by telegram to the governors of the provinces as soon as this law is sanc- tioned causing the same to be pubUshed by circular if he should tliink it necessary. Given at Panama on the 21st of the month of May, 1904. The President, (Signed) J. A. Henriquez. The Secretary, (Signed) Juan Bbin. Office of the President of the Republic, Panama, May 31st, 1904. Amador Guerrero. To be published and carried out. The Secretary of Pvblic Works, Manuel Quintero V. 289 Explanation of the laws in force in Colombia. Law 57 of 1887 (April 15th) On the Adoption of Codes and the Unification of National Legislation. The Legislative National Council decrees: Article 1. Ninety days after the publication of these laws there shall govern in this Republic with the additions and modifications whereof the said law treats the following codes: The National Civil Code, sanctioned May 26, 1873. The Commercial Code of the extinct state of Panama, sanctioned Oc- tober 12, 1869. The National Code on the same matters, edition of 1884, which deals solely with maritime commerce. 325 law 153 of 1887. The Penal Code of the extinct state of Cundimamarca, sanctioned on the 16th of October, 1858. The National Judicial Code, sanctioned in 1872, and revised by the law 76 of 1873, edition of 1874. The National Fiscal Code, and the laws and decrees having force of laws concerning the organization and administration of the national revenues, and the national military code, and the laws which sup- plement, and modify it. 290 FULL TEXT of the LAND LAWS of Colombia, decrees relative thereto and official procedure thereunder which were suspended in the State (afterwards Department and then ReiJul)lic) of Panama. Law 61 of 1874. (24th of June.) SiippIeTue72tary to Title 10 of the Fiftcal Code. The Congress of the United States of Colombia decrees: AijTicLE 1. Any individual wlio occupies uncultivated land belong- ing to the nation for which no special application has been provided by the law, and who therein estabhshes his dwelling, and does farming, ac- quires the right of property on tlie laud he may cultivate, whatsoever may be the area thereof. Article 2. If in imappropriated land pastures for cattle, cocoa plan- tations, coffee plantations, cane sugar plantations, or any other class of permanent plantations be established, the settler aside from acquiring the ownership conceded to him by the previous article, will be entitled to have adjudicated to him gratuitously a portion of contiguous land equal in area to the part cultivated. The executive vn]l establish the rules which must be observed to facilitate for the settlers the demarca- tion and adjudication of the said adjacent land. Article 3. In the case that those who populate unappropriated land mark out for themselves the land in wMch they estabHsh themselves, enclosing it with firm and permanent enclosures, capable of preventing the passage of wild animals and cattle, every settler shall acquire the property of all the land comprised within his enclosures. Article 4. The settlers who may be in possession of unappropri- ated land shaU be considered owners of the parts ciiltivated, and thirty hectares adjacent to the said parts. As owners shall be considered those who have constructed dwellings, and founded permanent cultivations, during more than five years of continued possession. Article 5. When in one and the same locaUty various settlers estab- lish themselves, and if in the pursuit of their work disputes should arise, the poUtical authority in charge of the administration of the district or " Corregimiento " (district of a corregidor), within the competency of 291 wliich tlus locality is situated, shall, upon the written or verbal petition of any of the settlers, summon before it the persons between whom the dispute has arisen, and if the said authorities cannot succeed in having the said persons reach an amicable settlement, the official, after previ- ously inspecting in person the land, will proceed to demarcate provi- sorially the boundaries within which each of the colonists can continue his work. The official in charge of making the demarcation will make a record of all the incidents thereof, in a report which he shall send to the President or Governor of the State, or to the Prefect of the Territory, for his approval. Article 6. Uncultivated land in which work is done peacefully dur- ing more than one year will be considered unappropriated land, for the effect that the colonists that occupy said land may be considered as pos- sessors in good faith, and cannot be deprived of the possession except pursuant to a judgment handed down by a civil court or court of first instance. The interdicts of possession treated in article 1218 of the judicial code shall not be admissible against the settlers who shall have worked peace- fully during more than one year the laud of the possession of wMch it is intended to deprive them. The provisions of this article shall only be applicable concerning the unappropriated land that may be adjudicated subsequently, and in no case concerning real estate the title of which is dated prior to the date when this law was sanctioned. Article 7. In the locaUties occupied by cultivators of unappropri- ated lands, the executive will reserve the area of land that he may con- sider necessary in order that the present cultivators may extend their work, and for the settlement of new settlers. This area of land reserved for the settlers shall be fixed in each case by the executive, after he has been suppHed with a report from the President or Governor of the State, or the Prefect of the Territory, where the locahty is situated. Article 8. The cultivators who shall abandon the land which is con- ceded to them by this law, during a period under four years, shall lose the rights that they may have acquired in such land, which \vill revert to the national domain. Article 9. The executive is authorized to assist the fii-st one hundred famihes of European emigrants which may settle in the Sierra Nevada de Santa Marta, with a sum of one hundred dollars for each family. This subsidy shall be given after the necessary guarantee is given, to each 292 family or to the entrepreneur or entrepreneurs who undertake the col- onization of that territory, as the executive may see fit. 1. The executive is likewise authorized, first: to subsidize the gov- ei'nment of tlie State of Magdalena with the amount of two thousand pesos, for the construction of a road opening communications be- tween the colony and the port of Santa Marta, as soon as at least ten families of European emigrants have established themselves in the Sierra Nevada de Santa Marta, and second: to subsidize, if the gov- ernment of said state undertake any scientific exploration in the territory of the Nevada said enterprise with the sum of one thousand pesos. 2. In the same manner as determined in the preceding dispositions, the executive is authorized to furnish assistance to the emigrants whether Europeans or from the colonies that may establish themselves in any point of the high Sinu in the State of Bolivar. Article 10. In the immediate neighborhood of the public roads opened or to be opened subsequently no adjudications of unappropriated land can be made that may have an extent of more than two Idlometers along said road; those receiving adjudications of this kind of land, are obhged to clear and cultivate at least the twentieth part of said land, within five years following the date of the adjudication. In default of fulfilment of this obUgation, the land adjudicated will revert to the national domain. Article 11. Along the sides of each of the lots of unappropriated land that may be adjudicated in the immediate neighborhood of the roads mentioned in the preceding article, the executive power will reserve the lots of equal area, which can only be sold for money, or distributed to new settlers. Article 12. All the adjudications of unappropriated lands that may be made subsequently, and which cover an area exceeding two hundred hectares, shall be made in square lots so that the official charged with conveying possession thereof can in each case rectify the dimensions of any of their side. When the adjudication comprises an area of more than five thousand hectares, the surveyor who attends to the survey must determine the astronomical position of the land. Article 13. In the four years following the date of this law, the Presi- dent or Governors of the States and the Prefects of the Territories shall have the same promulgated once a month on that day where the largest number of people of each district congregate; and in the visits made by the said officials personally or through their agents they will see that the rights of the settlers are respected. 298 Article 14. The provision in article 914 of the fiscal code will obtain when the excess amounts to more than a tenth part of the land petitioned for; thus when it does not exceed the said tenth part all the land will be adjudicated to the denouncer, if he pays therefor in the manner pro- vided by the said code. Article 15. The Presidents or Governors of the States, or the Pre- fects of the National Territories, shall see that the land occupied under the tei-ms of the preceding articles, are bounded, and shall send the files to the Secretary of the Treasury, in order that a corresponding title of adjudication may be issued. Article 16. For the efl'ects of article 879 of the Fiscal Code, the doc- ument evidencing the payment shall be considered as a legitimate title, provided that the interested party have designated the time of adjudica- tion and that at least twenty years have passed since said payment was made. Given at Bogota, twenty-second of June, 1874. The President of the Senate of Plefiiifotentiaries, Luis Capella Toledo. President of the Chamber of Representatives, Mateo Iturralde. Secretary of the Senate of Plenipotentaries, Julio E. Perez. Secretary of the Chamber of Representatives, J. David Guarin, Bogota, 24th of June, 1874. Publish and Execute. The President of the Union, S. Perez. The Secretary of the Treasury and Public Works, Aquileo Parra. (Published in the Diario Oficial nuinero 3,199, of 1874.) Law 48 of 1882. (28th of August.) Relating to Unappropriated Lands. The Congress of the United States of Colombia decrees : Article 1. The law maintains the principle that the ownership of unappropriated lands is acquired by cultivation, whatever may be the extent and orders that the attorney general protect ex officio the culti- vators and settlers in the possession of said land, conformable to law 61 of the 24th of June, 1874. To acquire gratuitously the portion of adjacent land equal in area 294 to the oue occupied, ^^'ith pastures for cattle, conformably to article 3 of the law 61 of 1874, it is necessary that said portion occupied be covered with artificial pastures. The owners of cattle pastures who have established themselves in natural pasture grounds of the unappropri- ated lands, shall only be entitled to the use of said land as long as they are occupied. The property of the land fenced in by the colonists in the manner de- scribed in article 3 of the law 61 of 1874 shall not extend over a portion larger than twice the amount of that which is cultivated. Article 2. The cultivators of the unappropriated laud established therein with dwelling-house and farm work, shall be considered as pos- sessors in good faith, and it shall not be possible to deprive them of the possession except by a judgment handed down in a common civil suit. Article 3. Unappropriated land is considered as property of public use, and the ownership thereof does not prescribe against the nation in any case, conformably to the provision in article 2519 of the civil code. Article 4. In the plenary suit on property of land, the only admis- sible suit against the cultivators of unappropriated land established therein with house and farm work, the complainant must exhibit the legal titles of ownership of the land which he claims, which must have an age of ten years at least, and in which there must be expressed with perfect clear- ness the boundaries of the land wliich he claims as liis own. Article 5. Even in the case that the cultivator lose the ownersliip suit, he shall not be dispossessed of the land which he occupies, except after he has been indemnified for the value of the improvements wrought on the land, as possessor in good faith. 1. The improvements to which this article refers, consist in the clearings, fences, cultivations and dwellings, which will be appraised by experts, as is provided by the judicial code of the Union, in the territories, and the judicial code of the State, in which the adjudica- tion may have been effected. 2. As long as the payment has not been effected representing the value of the improvements, there exists no right to demand the eject- ment. Article 6. The agents of the attorney general shall protect ex officio the cultivators of unappropriated land, and said agents must be con- sidered as legitimate parties in the suits for ownership that may be in- stituted against the latter. Article 7. The unappropriated land winch the nation may alienate for any cause, reverts gratuitously to it at the end of ten years if, within 295 this time, some agricultural or cattle industry have been established in said land. The regulations of the executive shall determine beforehand and with absolute certainty, the relation between the area adjudicated and that which shall be cultivated or occupied for cattle raising, neces- sary to preserve said adjudicated area, but in no case shall there be fixed less than one-tenth part of the adjudicated portion for such pur- pose. Article 8. Unappropriated land which for any cause is adjudicated remains subject to the necessary servitudes for the convenient use and enjoyment of the land which remains unappropriated and which may require these servitudes. Article 9. . In every adjudication of unappropriated land, for what- ever cause it may be made, it is understood that the rights of ownership of the occupiers are expressly saved, and these shall be protected against the adjudicataries according to the terms of the present law. Article 10. In every adjudication of unappropriated land which may comprise an area of more than one thousand hectares, the surveyor who attends to the survey and drawing of plans shall determine the astronomic position of the land by longitude and latitude, of one of its points, on any of its boundaries. Article 11. In no case will it be possible to adjudicate to one and the same individual or company an area of land exceeding five thousand hectares, nor to different persons or entities in continued area an area larger than five thousand hectares. Thus between one and the other portion there shall always be left alternate lots of at least the same area as the adjudicated ones, wliich the nation may reserve exclusively for cultivators. In each case it shall be also required that the perimeter of the area wliich is to be adjudicated be such that its greatest length be approximately equal to its greatest width. Article 12. Unappropriated land that exists in the mountain ranges that serve as boundaries for two or more states, and between the populated centres of each state, and the navigable rivers that may be national traffic ways, are reserved to be applied exclusively to the following objects: first, for the founding of new towns; and, second, for adjudications to culti- vators; and, third, for the development of roads of communication. Article 13. The executive shall prescribe aU the provisions necessary that this law may be duly observed. He will order that thereof and of the provisions in force of law 61 of 1874 and its concordance there be made 296 a special edition, which shall be distributed gratis and widely in all the towns of the Republic, in order that it may come to the knowledge of the cultivators and settlers of unappropriated lands. Article 14. The provisions of the present law do not affect the rights acquired by the adjudicataries or purchasers pursuant to the provisions in the matter in force at the time when the adjudication or sale was made. Given in Bogota, Aug-ust 24th, 1882. The President of the Senate of Plenipotentiaries, Anibal Galindo. President of the Chamber of Representatives, Francisco Munoz. Secretary of the Senate of Plenipotentiaries, Julio E. Perez. Secretary of the Chamber of Representatives, Carlos Cotes. National Executive, Bogota, Aug-ust 28, 1882. Publish and execute. Francisco J. Zaldua. The Secretary of the Treasury, Miguel Samper. (Published in the Diario Oficial number 5,457, of 1882.) Decree No. 832 op 1884, (October 11th.) Enacting the Laws of 61 of 1874 and 48 of 1882. The President of the United States of Colombia : Whereas : First: To facilitate the acquaintance with the executive provisions on unappropriated land, referring to cultivators, it is necessary to embody them in one sole decree, from which it is possible to gain an insight into the proceedings for adjudication on gratuitous title; Second: It is necessary to present clearly the intent of the laws on the matter, for the purpose that it may be known positively what are the rights conceded by these laws, and what are the obhgations contracted by the cultivators that become adjudicataries of unappropriated land. Third: The lack of acquaintance with the legal and executive provisions is the cause that the officials in charge of making demarcations for the cultivators established in said lands, may consider as acquired rights, facts that have not been within the conception of the legislators, and may bound portions of land which, according to the laws, should not be alienated, 297 a proceeding with which far from furthering the object of promoting agri- culture, distribute suitably property and populate the deserted districts of the repubhc, rise is given to abuses wMch require to be remedied. Herewith decrees: Article 1. The rights which laws 61 of 1874 and 48 of 1882 concede to the cultivators who have established themselves or may estabUsh them- selves in the land of the nation, are the following : First: Every person that may occupy unappropriated land and may es- tablish therein a dwelling-house and artificial cultivation, acquires a right of ownership to the cultivated land, whatever may be its area. Second: If the cultivations consist in artificial pastures, coffee planta- tions [ht. seeded lands], cocoa plantations, or plantations of any other fruit wherein it is not necessary to repeat the sowing process to obtain periodic crops the cultivator acquires the right that he be adjudicated a portion of uncultivated adjacent land next to the cultivated portion and equal to the latter in area. Third: If the cultivations are of the kind, where renewed sowing is required to obtain crops, as for potatoes, wheat, maize, etc., the colonist acquires the right to thirty hectares more of uncultivated land, adjacent to the tilled land. Fourth: Any person who may have cultivated unappropriated land, and has thereon a house, and has not abandoned the cultivation for more than one year prior to obtaining the adjudication thereof, acquires the right of being protected ex officio by the authorities in the terms of law 48 of 1882. - Fifth: When land occupied by cultivators is soUcited for adjudication in exchange for titles of concession, such cultivators are entitled to be pro- tected in the possession of the land that they may have cultivated, and in the portion adjacent treated of in sections 2 and 3 preceding, whatever may be the time of the actual presence on that land. In this case the sur- veyors appointed for effecting the survey of the land shall demarcate the portions of the cultivators and deduct the area of the latter from that which results from the survey of the whole tract asked for in exchange of title. Without this requirement the adjudication shall not be decreed. Sixth: If by way of an exchange of title, a tract occupied by colonists is asked for in adjudication these shall not have any right of ownership nor of any indenmification if as improvements they only exhibit stubble fields or overgrowth of weeds, nor shall they have any right to indemnification 298 for improvements when these consist in clearings and fences except in the case where there are cultivations and dweUing-houses, as these two con- ditions together are the ones that create the origin for the rights conceded by law, or wliere these clearings and fences have been made recently and in the intention of cultivating the land. Seventh: No cultivator is entitled to have adjudicated to liim two or more separate lots, conformably to provision of article 913 of the fiscal code. Therefore the officials in charge of making demarcations shall not effect such demarcations except on one sole lot where the colonist has his dweUing-house. The same rule shall be observed by the surveyors when demarcating the portions occupied by cultivators in the land sohcited in adjudication, by way of an exchange of titles. Eighth: No cultivator is permitted to sell the land he may possess as cultivated land except after he has obtained the title of property issued to him by the secretary of the Treasury of the Union, a title which shall not be definitive except when the cultivator proves that after obtaining it he has not abandoned the land during a period under four years, conformably to the provisions of article 8 of law 61 of 1874. In this case the purchaser acquires the same rights and obligations which the vendor had, being therefore subject to the obUgation of continuing the cultivation of the land, because, if he were to abandon the work during the four years of which article S akeady mentioned speaks, the land would revert to the national domain. If the cultivator should sell the improve- ments prior to obtaining the title, the purchaser is held to continue the cultivation of the land if he washes to have his rights recognized, conform- ably to the provisions already established. Ninth: The right of ownersliip to land which is artificially fenced in conceded by article 3 of law 61 of 1874, shall only be recognized in the case that the occupier has estabhshed cultivations, and never to a larger ex- tent than twice the area of the cultivated part, conformably to provisions' of the paragraph of article 1 of the law 48 of 1882. It is understood that the enclosures shall be firm and permanent, capable of preventing the pas- sage of wild beasts or cattle. Article 2. Conformably to paragraph under article 1 of the law 48 of 1882 those are entitled to the use of land wliich they occupy with cattle, who have established ranches in the natural pastures of the unappropri- ated lands; but as the said paragraph provides that the said individuals do not acquire right of property in the land and as the rights of the nation do not prescribe against said nation, conformably to article 3 of the same 299 law, land thus occupied shall be adjudicable to any one who may solicit the same by way of a title of concession; but circumstances being equal, the first occupier shall be preferred. Article 3. Any person who, in the exercise of the rights conceded by laws 61 of 1874 and 48 of 1882, estabhshes himself with dwelling-house and permanent cultivations upon unappropriated land is bound to report this fact to the president or governor of the state or the prefect of the territory wherein said land is situated, stating what approximate area he has occu- pied with plantations, in order that the land occupied may be bounded for him, in conformity with the following provisions : Article 4. When at the office of a president, governor or prefect the communication referred to in the preceding article has been received, the first pohtical authority of the place where the land is situated shall be ordered to proceed, after by information as to the plain facts the land has been shown to be unappropriated, to carry out in connection with the rep- resentative of the attorney general, and two experts, the demarcation of the cultivated land, and of the adjacent portion, treated of in sub-sections 2 and 3 of article 1 of tliis decree, not forgetting, further, the provisions of sections 6 and 7 of the same article. For demarcations of portions under one hundred hectares, the experts shall measure as exactly as possible the cultivated part and the adjacent part, specifying by an entry the operations performed by them for this pur- pose, in the corresponding record of demarcation. If this survey should not be possible, owing to the fact that the experts do not possess enough knowledge to survey land, whose perifneter is irregular, then the demarca- tion shall be made in square lots. Article 5. Before effecting the demarcation, there shall appear for thirty days some advertisement in a public place of the district, where the land is situated, stating the general boimdaries of the tract cultivated, the name by wliich the land may be known, the land on which it adjoins, and the petition for demarcation which may have been made. When the time during which said notice is displayed has expired, and no opposition has been presented, the demarcation shall be carried out, and the said notices shall be taken down to send their originals together with a record of de- marcation, and the statement as to witnesses, to the president, governor or prefect, for the effects of article 922 of the fiscal code. Article 6. The record of demarcation shall contain the name of the cultivator, the area of the land, wliich is demarcated in liis favor, the boun- daries within which it is comprised, and which must be fixed on the land, 300 and described in the records as clearly as may be possible, so as to avoid subsequent disputes, between the cultivators themselves, or with the owners of adjoining land. Article 7. It is the duty of the presidents or governors of the states, or prefects of territories to procure for themselves the reports and docu- ments necessary to prove the cases of abandonment of land adjudicated to cultivators, on the part of the latter, in order that it may be declared that the abandoned land reverts to the domain of the nation. Article 8. Since up to the present time the provisions of article 15 of law 61 of 1874 have not been comphed with, the presidents or governors of the states and the prefects of the national territories shall order that the pohtical authorities of each district or corregimiento make up a list of all the cultivators estabhshed in their jurisdiction, that they demarcate the cultivated lands for those who have not as yet obtained the title of ownersliip, conformably with the provisions contained in the foregoing articles, that they report whether the said cultivators have complied with the provisions of the law, not to abandon the land, and to increase the cultivation, and that they send all these records to the office of president or governor of the state, or the prefecture of the territory for the effects of article 5 of this decree. The provisions in the foregoing article must be complied •nath as soon as possible. Article 9. The duty of the surveyors appointed for surveying unappro- priated land is as follows, both for adjudications solicited by cultivators and for those \\'hich are petitioned for by way of an exchange of title. First: To leave around the land they may survey an area sufficient so that on each of the sides of the perimeter of the land surveyed there may be formed the lots which the law destines exclusively for cultivators, said lots not to have an area less than that of the land surveyed. No adjudi- cation of land shall be decreed which forms a continuation of other land that may have been adjudicated as unappropriated to the same person" who petitions for said land. Second: The tracts which are surveyed shall be as regular as the con- formation of the land allows, and in all cases shall the line of its greatest length be approximately equal to the greatest width of the land. Third: They shall submit a scientific and specified exposition both of the operations carried out for drawing up the plan, and of the calculations made for determining the area of the land surveyed. Said exposition shall moreover contain an enumeration of the boundaries, starting from a fixed and invariable point, which is knoMoi, or can be recognized at any time, 301 the said statement to be as clear as possible, so as to avoid subsequent disputes mth the owners of adjoining land, which latter must be indicated in the said report, the quality and climatic conditions of the land, as far as possible the resources in flora, or in minerals, of said land, and the geo- graphical description of the district, wMch must embrace at least a radius of ten leagues. Fourth: "^Alieu the land surveyed has an area of one thousand hectares or more, the surveyor must determine the astronomic latitude, of one of the points, whatever it may be, of the perimeter, stating even approxi- mately the seconds, and if the surveyors should have chronometers adjusted to the meridian of Bogota, they shall also make the calculation of the longitude approximately down to seconds. In the contrary case, the cal- culation will be as close as may be possible. In the corresponding report or record a detailed statement of the calculations and observations that may be made for determining the geographical co-ordinates shall also appear. Fifth: The scale that is to be used for drawing up the plans shall be 1 millimeter to 10 meters, for adjudications below two thousand hectares, and 1 milUmeter to 20 meters for areas over two thousand hectares, and up to five thousand hectares, which is the Kmit fixed by law for all adju- dications. Sixth: The plans shall contain all the topographical details of the land. The quotations in figures of aU the fines of the perimeter, and of those appearing in the geometrical figures which may have been used for cal- culating the area; the magnetic direction of each side of the perimeter, the name of the owners of the adjoining lands, the name of the mountain ranges and of the rivers or ravines, the demarcation of land occupied by cultivators, if there be any (and concerning these, mention must also be made in the report). At the side of the plans the compass shall be indi- cated, fikewise the geographical position, the square area in detail, and the scale. These plans must be submitted in duplicate, each signed by the surveyor and the party interested, after which they shall be authen- ticated by the respective president, governor or prefect of the national territory. The government engineer in charge of the branch of unappropriated lands shall collect the geographical descriptions which each report contains in a methodical way, and the collection thus made shaU be sent each year to the secretary of pubhc works, etc., where the notes and corrections neces- sary shall be made on the maps of the repubUc. 302 Article 10. For the make up of every protocol on the adjudication of unappropriated land the display of notices for thirty days in the pubUc places of the districts or corregimientos where the land petitioned for is situated is an indispensable condition. These notices which also shall be published in the official paper of the state, shall be displayed as soon as the denouncement, and the petition of adjudication of such land are made, and shall contain the name by which the land may be known, the general boundaries defining it, the name of the owners of the adjoining lands, and the petition for adjudication made therefor. Article 11. Since the motive of the display of the notice referred to in the preceding article is that the owners of the adjoining land or those who may believe that they have some right to the land petitioned for, may make their claims in due time, the presidents or governors of the states or the prefects of the territories, shall not issue any decree bearing on survey and provisory adjudication of the land, before the time for displaying the notices has passed. In case there is any opposition the contest shall be decided on in the administrative way, in view of the titles wliich the opponent shall submit, before the decree spoken of above is issued. Article 12. Both the cultivators who may obtain the adjudication of an uncultivated portion contiguous to the cultivated portion, and the per- sons that may obtain the adjudication by way of an exchange of title, shall cultivate the land within the ten years following the date of final adjudica- tion, in the following proportions: 40 per cent, for adjudications up to 200 hectares. 35 per cent, for adjudications from 201 up to 300 hectares. 30 cent, for adjudications from 301 to 500 hectares. 25 per cent, for adjudications from 501 up to 1,000 hectares. 20 per cent, for adjudications from 1,001 up to 2,000 hectares. 15 per cent, for adjudications from 2,001 up to 3,000 hectares. 10 per cent, for adjudications from 3,001 up to 5,000 hectares. The third section of the treasury shall demand in due season the reports necessary to know concerning which adjudications the condi- tions stipulated in article 7 of the law 48 of 1882, and 12 of this decree, must be complied with, in order that in default of fulfilment the land may revert to the national domain. The compilation of every act bearing on adjudication of unappropriated land must be made in conformity with the provisions of this decree, and in conformity with the circular which the secretary of the treasury will issue in due time, in the manner in which to make up documents wherein adjudication of unappropriated land for any title is petitioned for. 303 Article 14. Decrees No. 518 of 1874 and 371 of 1879 and 640 of 1882 are herewith repealed. Likewise is repealed resohition of the 8th of July, 1872, pubhshed in the Official Gazette number 2594, in which the quota to be adopted according to the area surveyed had been defined. Given at Bogota, on the 11th of October, 1884. The Secretary of the Treasury, F. Angulo. Raf,\el Nunez. (Published in number 6230 of the Official Gazette, of 1884, and repro- duced in the No. 543 of the official register of 1893.) Circular Number 94, by which the drawing up of documents bearing on U7iappropriated lands is regulated. United States op Colombia. National Executive. Office op the Secretary of the Treasury. Section 3. Department of Unappropriated Lands. No. 94. Bogota, October fifteenth, 1884. To THE Secretary General, or to the Secretary of the Treasury OF the State of ... or to the Prefect op the National Ter- ritory OF ... : Inasmuch as through the laws and through executive decree number 832 of the current year some of the provisions on which the circular 945 of the 29th of December of 1880 of this Secretary's Office is based, have been changed, the executive Power has decided upon issuing a new set of regulations bearing on the formation of the documents connected with the adjudications of unappropriated land on any title. From the time of receipt of the present circular in your offices, all documents to be drawn up for the purpose indicated shall be conformable to the following pro- 304 Adjudications by Way of Change of Title. (1) There sliall be made an investigation de facto nvdo, by means of the depositions of equal tenor of five witnesses, made before a Judge, Alcalde or a Corregidor, and in the presence of the District Attornej', said witnesses to declare that they know for certain : ■ That the land which is desired in adjudication is unappropriated, That the land is not destined for any determinate pubUc use, And that it is removed more than a myriameter from the tracing of projected railroads or such that are in course of construction. The ofhcial who examines the witnesses shall certify at the bottom of the investigation as to the fitness of said witnesses for such deposition, in compliance with the requirements of the Judicial Code of such state or the national judicial code in force in the territories. (2) The party interested shall submit a promemoria to the President or Governor of the State or the Prefect of the National Territory, in wliich he denounces the tracts as unappropriated and petitions for their adjudi- cation of all or a part of them, stating the name by wliich they are known ^f they have one — the province, department, municipality, district or corregidor's district, wherein they are situate; the land with which they are bounded and such other indications as may convey a clear knowl- edge thereof. To this promemoria there must be added the investigation through witnesses referred to and the titles of concessions sufficient to cover the number of hectares of the tracts that are solicited, with the express warn- ing that by way of title-change no more than 5,000 hectares can be adjudicated. (3) Upon receiving the previously indicated promemoria, the Presi- dent or Governor of the State, or Prefect of the Territory will order the denouncement made to be pubUshed in the Official Gazette; he also shall order that the Alcalde or Corregidor of the District where said tracts are situated, put up notices in the pubUc places with the statement that the tracts comprised within the boundaries indicated have been peti- tioned for in adjudication as being unappropriated. In said notice the name of the lands petitioned for shall be given, the names of the owners of adjoining land and such other indications by which said tracts may be known clearly. These notices shall remain displayed for the time of 30 days. If the adjoining owners, or persons beheving to have a right to the 305 tracts solicited, put in a claim during the time in which the notices must remain displayed, such claims shall be decided upon in the administra- tive way in view of the legal titles that may be exhibited; if there be no claims the President or Governor of the State, or Prefect of the National Territory, shall appoint a surveyor and shall contract with liim to make a plan of the land at the expense of the party interested, always remem- bering when entering into said contract the provisions of article 9 of De- cree number 832 of tliis year. The Surveyor shall submit two copies of the plan and a scientific statement of the operations carried out for the survey and for the making-up of the topographical plan. (5) On the plan there shall be indicated with different colors, aside from other points concerning topographical drawing, those parts of the tract which are prairies, those that are covered with underbrush and those that are wooded. There must be equally represented all the rivers and water-courses of any importance which irrigate the land specify- ing the names they might have, and the roads or paths that lead through it. (6) Both the specified statement of the surveyor and the plans he makes pursuant to his contract, shall be signed by him and by the party interested, without which it [they] shall not have any legal authenticity for official purposes. (7) If there be any settlers established in the tracts which are petitioned for, the surveyor shall survey and demarcate, both on the land itself and on the plan, the area occupied by every one of them, remembering in such cases the provisions of article 1 of the said decree. (8) After the survey of the land has been carried out and after the plans of the same have been submitted, the President, Governor or Pre- fect, shall put on each of them a notice of authenticity with his signa- ture and that of the respective secretary. (9) When the documents have been prepared and all the requirements expressed in the previous sections have been complied with, the Gov- ernor, President or Prefect will issue the decision, provisional or that which he considers just, which will be communicated with such obser- vations as he may deem fit to the Secretary of the Treasury, sending to the latter the original documents. As an essential part of said set of documents one of the plans authenticated must be sent at the same time, and the other copy will be deposited in the archives of the respective offices of President, Governor or Prefect of a Territory, with the understanding that the party interested may make use thereof when he has to take possession of the land. 306 (10) After the documents have been received at the office of the Sec- retary of the Treasury of the Union, the Executive shall issue the deci- sion which he may deem fit and shall return it in order that througli the respective President, Governor or Prefect the delivery of the land be oitlered, in case the decision have been favorable to the party interested, in which case the office of the secretary of the treasury of the Union will cause to be caiicelled the titles which have been presented in payment of the adjudication. (11) The deUvery of the land to the persons to whom the same is ad- judicated, shall be effected conformably to the provisions in the Execu- tive Decree number 334 of 1878 {Official Gazette number 4343), taking into account when effecting it that the rights nmst be saved of the cul- tivators who may have established themselves in the land prior to the provisory adjudication, with a dweUing-house and artificial cultivations (decree number 334 of which this regulation speaks, was abolished by decree number 878, published in numbers 8207 and 8208 of the Official Gazette) . (12) After the delivery of the land has been effected and the corre- sponding protocol has been added to the files, a title will be issued to the party interested, should he so wish it, in the terms of article 931 of the Fiscal Code; after that the set of documents shall be returned to the office of the secretary of the Union to be deposited definitely in the archives thereof. This will even take place in the case where the adjudicatary shall fail to petition for the execution of the title. Adjudications to Colonists or Cultivators. (13) Conformably with dispositions of articles 932 and 933 of the Fiscal Code, 15 of Law 61 of 1874, and in comphance with those of the national civil code .obtaining here, the traditio dominii of unappropriated land cannot be considered as having been effected and perfected, if the title which proves the acquired property, be not obtained. Tliis title is made up in some cases of the protocols of adjudication, demarcation and delivery by the national officials, determined by the laws and executive decrees on the matter, and in other cases of a public deed duly recorded conformably to the Civil Code, and wherein must be contained the pro- tocols enumerated in article 931 of the Fiscal Code. But in every case the delivery of the dominium rests on an adjudication decreed by the Na- tional executive; without that the traditio does not take place, even if 307 pursuant to general laws or special laws the concession of unappropri- ated lands should have been made. (14) Every person who as colonist or cultivator believes to have ac- quired any of the rights expressed in article 1 and its subdivisions, of Decree 832 of the current year, must solicit for liimself the demarcation and adjudication from the President or Governor of the State or the Prefect of the National Territory wherein the land is situate, in the manner expressed in subsection 2 of this circular, enclosing in his petition the investigation through witnesses of wliich subsection 1 treats. In this investigation (protocol) of witnesses, the latter must in addition de- clare, that they know for certain that petitioner has a dwelling-house and artificial cultivation estalshshed thereon, and they shall Ukewise express the length of time of the occupation and the land of cultivation. In the petition referred to the colonist shall likewise indicate the area that he is occupying, which he shall calculate approximately if he does not know it exactly. (15) After a petition made up in the terms of the preceding section has been received, the President or Governor of State, or Prefect of the Na- tional Territory shall order the display of notices as indicated under No. 3 of this circular, and after the time for their display has passed, he shall order the demarcation of the land through experts acting in the com- munity with the first political (adixiimstrative) power and mth the repre- sentative of the attorney-general, at the place where the land is situated, if the latter does not exceed one liundred hectares. In the contrary case, that is to say when the land comprises an area larger than 100 hectares, the .colonist is obliged to ask from the proper authorities the survey of the land as indicated in subsection 4. The demarcation of the land by experts will be effected in compliance with the provisions of articles 4 and 6 of the Decree referred to. If during the thirty days during which the notices must remain displayed there appears any person who objects to the denouncement and the petition of demarcation made by the cul- tivator or colonist, the controversy shall be settled in the administrative way in view of what titles the opponent may present. If, however, the opponent or the colonist should appeal from the decision, then the Judi- cial Power shall decide it in conformity with articles 4, 5 and 6 of Law 48 of 1882. (16) After the demarcation or the survey has been effected and the protocol thereof has been added to the other documents, the latter will be returned to the president or governor of State or Prefect of the national 308 territory that he may decree the provisory adjudication, if the documents be in good order; if that be not the case, they shall be returned for remedy of such defects as they may have. Wlieii the documents are again re- ceived in perfect order, the said President or Governor of the State or Prefect of the National Territory shall decree the provisional adjudica- tion and shall send them to the Secretary of the Treasury in order that the latter decree the definitive adjudication. (17) If the definitive adjudication be decreed, provided there is cause therefor, and after the documents have gone back to the Governor or President of the State or Prefect of the Territory, who substantiated same, he will order that the delivery of the property adjudicated be made, in the terms of article 932 of the Fiscal Code. (18) After the delivery has l)een effected and after the corresponding protocol has been added to the flies, the authority that effected it will issue to the colonist or cultivator a certified copy of the decision of final adjudication and of the protocol of delivery, which copy after being duly recorded constitutes a legitimate title of property (articles 932 of the Fiscal Code, and 2652 and 756 of the National Civil Code). (19) After the formaUties preceding have been compUed with, the doc- uments will take the course determined in the final part of subsection 12 of this circular. For the rest I call your attention to the provisions of executive decree 832, pubhshed in the Official Gazette 6230. Yours respectfully, F. Angulo. (Published in 6230-1882 of the Off. Gaz. & reprod. in 543-1893 of the Off. Register.) 309 V-IHIOUS RESOLITIOXS SHOWIXG THE OPERATIOX OF THE L.\XD LAWS FOREGOING. Resolution ox Uxapfropkiated Lands. Secretary of the Treasukt, Section 3. Depaktment of Unappropriated Lands. Bogota, Julj^ 28, 1894. In order to settle the points consulted about in the pre%-ious promemoria it is hei'ewith considered: First: That, inasmuch as the denouncement of unappropriated land is the basis of all further administrative proceedings, beai-ing on their adjudi- cation, the former must contain the precise and exact statement of the number of hectaies solicited, in compliance ^"ith article 883 and 912 of the fiscal code, for the pm-pose that the denouncement ma)' have the char- acter essential for a document attributed thereto bj' articles 931 and 944 of the same code. Second: Inasmuch as the promemoria of denouncement must contain a minute description of the parcel of land or of the zone which is desired to be obtained, a description wliich, as guai-antee of the rights of tliird persons, is pul^lished by means of official notices, article 914 of the same code pro- %ides that the demarcation expressed in the priman,- petition should cor- respond or conform itself by an exact coincidence vn.t\\ that expressed b}' the surveyor in the respective plan. Third: Inasmuch as therefore tlie denouncers of unappropriated lands are obUged to determine ■s\ith certainty from the day on wliich the petition is submitted to the respective official, the number of hectares which is sohcited, and -nhich must correspond wath the titles presented, it is corre- lativeh' deduced that in the denouncement or primarj- petition of adjudi- cation there shaU be expressed as nearly as possible the boundaries within which the land to be adjudicated is comprised, and further that it is incor- rect to indicate in the denoimcement a demarcation covering a zone or region considerably larger than the one wliich is petitioned for, which, on the other hand, would give rise to fraud, and would interfere -n-ith the rights of other indi^-iduals to denounce and petition the adjudication of unappro- priated lands in the same zone or region to the prejudice of the government, of agricultural industrj- and of colonization. 310 It is therefork resolved First: Between two denouncers of whom the first has not met the legal formalities of which mention is made above, denouncing on the contrary a zone larger than that covering the hectares which is to be adjudicated to him, while the second although he has effected his denouncement sub- sequently has complied with said formalities, the latter shall be evidently preferred, and not only that, but the denouncement of the first party shall be rejected as infringing the law. Second: According to the doctrine laid down, it is also evident that the denouncement which fails to conform to the provisions of the law shall be rejected as of no value, in any stage in which the documents necessary for the adjudication may be from the very moment in which the respective official should find e\adence of this lack of conformity with the legal pro- visions. To be published. For the Minister. The Assistant Secretary, JUSTINIANO CaNOIST. Promemoria on Unappropriated Land, and Resolution. To His Excellency the Secretary or the Treasury, Bogota: I have petitioned the Gobernacion of this department for an adjudica- tion in the Sierra Nevada de Santa Marta, and I supplicate Yom- Excel- lency that you deign to decide whether any other person may occupy for cultivation any part of these lands, comprised in the area denounced and petitioned for in adjudication. The case to which my inquiry refers has not come about as yet, but I have good reason to fear that it is to occur, already in the next spring, when perhaps the adjudication has not been terminated as yet. It is not superfluous to inform Your Excellency that the denouncement and the corresponding notices were published during the term prescribed by law, and that no opposition has presented itself, as in fact no one could present such. I am Your Excellency's obedient servant, Manuel D. Granados P. Santa Marta, September 7, 1894. 311 Office of the Secretary of the Treasury, Section 3. Department of Unappropriated Lands. Bogota, October, 10, 1894. Inasmuch as the land which the petitioner says that he has denounced is unappropriated land, as long as it is not adjudicated, any person or persons may establish cultivations thereon, but since it is required by the corresponding provisions that the cultivators in order to obtain a right to adjudication must occupy and cultivate it for four years, the mere fact of the present occupation does not constitute any right in favor of the occu- pants, if at the time of adjudication of the land to the petitioner this re- quirement has not been met. Communicate and publish. The Assistant Secretary in Charge of the Office, JusTiNiANo Canon. {Official Gazette, No. 96 11.) R15S0LUTI0N REFERRING TO THE PRECEDING PrOMEMORIA. Office of the Secretary of the Treasury, Section 3. Department of Unappropriated Lands. Bogota, November 23, 1904. And whereas: First: Alinea 8 of article 1 of decree number 832 of 1884 says: "No cultivator shall be permitted to sell the land that he possesses as cultivated land except after obtaining the title of property issued to him by the secretary of the treasury of the union, a title which shall not be definitive except when the cultivator proves that after having obtained it he has not abandoned the land for a time of not less than four years con- formably to the provisions in article 8 of law 61 of 1874. In this case the purchaser acquires the same rights and obligations as the vendor possesses, being therefore held to continue the cultivation of the land, because if he were to abandon the tillage during the four years of which article 8 of the law 61 of 1874 already mentioned speaks, the land shall revert to the na- tional domain. "If the cultivator should sell the improvements before obtaining the title, the purchaser is held to continue the cultivation of the land, in order that any rights may he recognized for him, conformably to the provisions already established." 312 Second: And whereas the permanent cultivation for four consecutive years at least, and the building of a dwelling-house on the land is that which constitutes the right to the adjudication, the person who, without having obtained the latter, sells the improvements, loses this right, because the sale of the cultivation is equal to the abandonment thereof, before obtaining the definitive title, in which case the purchaser of the improve- ments is substituted for the vendor, as regards the obligation which the vendor had to continue the cultivation, and also as regards tlie right to obtain the adjudication of said land, after the fulfilment of the other for- malities prescribed by the corresponding provisions. Now THEREFORE BE IT RESOLVED, In virtuc of the provision tran- scribed, and of the proper interpretation of the other legal provisions on the concession of rights to cultivators of unappropriated lands, this ministry is of the opinion that tlie latter can indeed sell the plantations or improve- ments as fruit of their work, before having obtained the adjudication, but that they cannot reserve for themselves the right to the land, and still less to sell to a third party a presumed right as is that of adjudication of the land, a right which passes over to the purchaser of the cultivations and improvements because these latter, maintained and enlarged during at least four years, are those which give to the cultivator of unappropriated land the right to have issued to him the title of property of that tract on which he may have estabUshed himself, a title which is constituted by the definitive adjudication by means of the formalities prescribed therefor. Communicate to the party interested, and pubhsh tliis resolution. The Assistant Secretary in Charge of the Office, JusTiNiANO Canon. Official Gazette 9645. FORMS FOR PROCEDURE ILLUSTRATING OPERATION OF LAND LAWS. 1. Of the Promemoria for Making Investigation de Nudo Facto. Mr. (Judge, Alcalde, or Corregidor op ) : I, N. N., of age, and an inhabitant of this (or such and such a ) district, petition you herewith respectfully that you summons to your office Messrs. N. N., N. N., N. N., N. N., and N. N. (there must be at least five deponents) and that you cite and cause to be present the correspond- ing agent of the attorney-general, taking thereupon their affidavit on the foUowing points : 313 1. Age, domicile, and general information required by law as to their relation or non-relation to me. 2. Whether they know for certain, and from what cause, that the tract of land known by the name of (if it has any) situated in the place of section of Corregimiento of of jurisdiction, and bounded by the following boundaries : (Follow the boundaries). 3. If they know for certain, and for what cause, that within the said tract of land I have estabhshed a dwelling-house and permanent cultiva- tions (or alternate) such as (specify the kind) to an extent of hectares, approximately. 4. If they know for certain, and for what cause, that for years I am established on said tract of unappropriated land, without ever having abandoned it (time of occupation must not be less than four years). 5. If they know for certain, and for what cause, that the said tract of unappropriated land is not destined for the nation, for any determinate public use. 6. If they know for certain, and for what cause, that the tract of un- appropriated land involved is remote more than a myriameter from the lines of projected railroads or railroads under construction, and 7. Whether they know for certain and from what cause that within this tract of unappropriated land there are no mines or rock salt, precious stones, guano, or others, the ownership of which is reserved to the nation. I also petition you that in every one of the affidavits you comply with mandate of article 633 of the judicial code, and at the end of the protocol with, the requirement of article 596 and 599 of the same code, ordering that everything be returned to me. (Here the date.) Mr. (Alcalde, Judge, etc.). (Here the signature.) (In the promemoria drawn up for the summary investigation referred to above, for denouncing unappropriated land, by way of title of concession, the questions under 3 and 4 will not be put.) 2. Promemoria for Denouncing Land. To THE Honorable the Governor of the Department of : I, N. N., of age, and an inliabitant of this district (or some other), re- spectfully submit to Your Honor, that at the place of section 314 of corregiiiiiento of of this municipal district (or some other) province of of this (or some other) department, there is some unappropriated land, known by the name of , which is comprised within the following boundaries (follow the boundaries) ; and as I wish to acquire the property thereof as cultivator or colonist (or in exchange of title as the case may be) denounce it before you in legal form. The tract which I denounce amounts approximately to hec- tares, of which about are cultivated by me, and I would state that the cultivations which I have there consist of (specify kind). (In the projnemoria where unappropriated land by dint of a title ex- changed is denounced, it will read : The land which I denounce amounts to hectares, equal to the number covered by the title or titles which I attach.) The land which I denounce, bounded as I have said, adjoins the follow- ing properties (adjoining owners) : I enclose in tins denouncement the protocol de nudo facto, made up of the depositions of five capable and fit witnesses, by which I prove the character of the land as unappropriated, and the other conditions which the laws and decrees on the subject demand. (When the land is denounced in exchange of title, it will be added: And territorial certificates of hectares each (express series and numbers of the certificates). Therefore, my denouncement havmg been made in compliance with the provisions of the law, I supplicate your Honor that you deign to admit it, and order that it shall be given legal force. (Here the date.) To the Governor (Here the signature). PEOCEEDINGS for the Make-up of Documents by Means of which Un- appropriated Land is Denomiced and Mode of Giving them the Proper Course in the Government Offices. Measures for Preparing the Denouncement. The person or company that would like to bring about the adjudication of some tract of unappropriated land will submit a promemoria to any 315 of the judiciary or administrative officials, except the Prefects of the Provinces, in which they petition that in presence of the corresponding representative of the Ministry of PubHc Works five individuals, at least, whose Christian and family names must be given, shall be heard on the following subjects: The deponent must state : — (1) His age, domicile, general information about his person as demanded by the law, such as relationship to the petitioner, etc. (2) That which is known to him for certain, having seen it, having heard it say so, or from any other cause, that the tract of land known under the name of situated . (in such and such a place) part (such and such) of the jurisdiction of (such and such a township), is not appropriated. If the boundaries be known, they must be indicated (circular No. 94 of 1884, paragraph 1). (3) That he knows for certain (source of information) that within the tract of land referred to the petitioner has a dwelling-house and culti- vated farmlands, specifying the kind of every one of them, covering (so and so many) hectares, approximately (circular No. 94 of 1884, paragraph 14). (4) That he knows for certain (source of information) that (so and so long ago) the petitioner or soUcitant first settled in that tract of land, and that since he never^has abandoned it. The time of occupancy of the tract of land must not be less than four years (see Resolution of the Secretary of the Treasury of the 10th of October, 1894). (5) That he knows for certain (source of information) that the said tract of land is not destined for the nation nor any public use of prede- termined character (section I. of the circular). (6) That he knows for certain (source of information) that the tract of land unappropriated, involved here, is removed more than one myria- nieter from the tracings of the projected railroads or railroads under con- struction (paragraph 1 of the circular), and (7) That he knows for certain that in the said tract of land there are no mines of rock salt, precious stones, guano, or others the ownership of which the Nation has reserved for itself (articles 1116, 1117, 1121, and 1126 of the Fiscal Code). 316 In the affidavits accompanying the petition for adjudication of unap- piopriated lands in exchange of a title of concession, items 3 and 4 need not be considered. The official who receives the depositions must in every one of them meet the requirements of article 633 of the Judicial Code, and at the end of the statement the requirements of articles 596 to 599 of the Code (para- graph 1, aUnea 4 of the circular). Denouncement. After the information de fucio nudo (bare fact) has been obtained, the petitioner proceeds towards making the denouncement by means of a promemoria addressed to the governor of the province, in which said land will be denounced as being unappropriated and a petition for their adjudi- cation will be made, wherein it must be stated by which of the means, by which they can be petitioned for, the petitioner solicits their adjudication, whether as a cultivator or in exchange for titles of concessions. There will be stated, moreover: — (1) The name by which the tract of land which is denounced shall be known. (2) The district, section, corregidor's district, and province wherein they are. (3) The general boundaries within which the tract is contained. (4) The number of hectares (if the amount is not known definitely, then the approximate area), specifying the area cultivated and that not cul- tivated, stating of what kind of cultivations the former consists. (5) The lands which adjoin the tract and other indications which may help to give a clear idea of the tract (paragraph 2 of the circular). In the i)etitions which are submitted by way of change of title of con- cessions, only that is excepted from the above which refers to the dwelling- house, cultivated land, and time of occupancy; such a promemoria must contain, aside from the summary information attached thereto, the titles of concession, equal in number of hectares to the ones solicited for award (paragraph 2, alinea 1 of same circular). Wlien presenting to the government (Treasury office) the promemoria referring to the denouncement, accompanied by the above-mentioned docu- ments, these will be examined, and, if it is found that thej' are made up in proper form, the government will issue through the office of the Secretary of the Treasury a decree pursuant to which the denouncement will be 317 declared as having been admitted, and in the official gazette of the depart- ment, and at the expense of the denouncing party, a decree will be pub- lished where the denouncement made wiU be pubUshed (paragraph 3 of the circular). In that decree the name of the land which is solicited for award is ad- vertised, Ukemse its boundaries, the names of the owners of the adjoining lands, and all other indications by dint of which the land can be clearly recognised (paragraph 3 of the circular). After the decree referred to has been pubhshed, and after the number of the gazette in which it appeared has been marked on the files, the same office will issue another decree whereby other decrees of the same tenor as the one pubhshed will be caused to be hung up at accessible parts of the said Treasury office and of the Alcaldia of the district where the land is situated. If the land should reach over into the territory under the jurisdiction of another district or corregimiento cCorregidor's district), also in the offices of that Alcalde or Correg?dur, as may be the case, another decree like the preceding ones must be hung up. These decrees must remain hung up in the said places for tliirty con- secutive days (paragraph 3 of the circular). Opposition. If within the term during which the decrees remain thus exhibited, any opposition is raised, the term of exhibition shall be allowed to properly expire. Wlien that term has expired, when the decrees exhibited have been taken down and after they are returned to the Treasury office, they will be added to the files, and a decree is dictated in which the oppo- sition is declared as having been admitted (always provided that said oppo- sition has been raised before the term during which the decrees were exhibited has expired), and a notification thereof is ordered to be dehvered unto the denouncing party, a fair time being allowed to the latter to file a reply, and for this purpose the docket of the denouncing party, as well as the documents and petitions of the opponent submitted by the latter for the purpose of substantiating the opposition, shaU be at the disposal of the denouncing party. After the term stated in the above notification has expired, a reply has been filed, and after all the documents have been returned to the office of the Treasurer, the latter will cause the matter to be decided in the min- isters' conseil (council), where a resolution will be taken that will be com- municated to the parties in question. 318 If an appeal is taken from the said resolution by one of the parties, all the documents will be transmitted to the Circuit Court which has the competency over the said land, and the presiding judge of that court will decide the controversy (paragraphs 4 and 14 of the circular). After the matter has been decided upon by the said judge, this official will return to the Secretary's office the decision basing on which a decree will be issued wherein the decision of the court shall be ordered to be carried out. Demarcation or Survey. If the decision of the court does not nullify the denouncement made, the petition will be granted, and, since the granting in all cases involved the demarcation or the survey of the land, the decree will take the fol- lowing shape: — If the land which is petitioned for has been denounced under the claim of cultivator, and does not exceed one hundred hectares, the area will be defined by means of demarcation; but if it does exceed one hundred hec- tares, or if it be denounced under the claim of change of title of concession (in this case even if it does not reach one hundred hectares), the area will be defined by survey (paragraphs 4 and 15 of the circular). In the first case, that is to say when the defining of the area is to be effected by means of demarcation, a decree will be issued wherein the Alcalde of the district where the land is situated is required to bring about the demarcation, accompanied by the municipal deputy and by two experts appointed and qualified by the Alcalde previous to the act, the said demar- cation to be effected entirely in compliance with the provisions of the Executive Decree 832 and circular 94 of 1884 (paragraph 11 of the cir- cular) (see circular 574 of the government of Tolima, 1890). In the second case, that is to say when the area of the land is to be de- fined by survey, the decree issued will appoint a surveying engineer who ■ must be of recognized integrity and skill. If the Treasury should find it difficult to appoint a surveying engineer, as the land is in another district, and it is not easy to know which engineer can be appointed, then the decree will instruct the Alcalde of the district where such lands are situated to appoint the engineer, to qualify him, and to make with the solicitant the necessary surveying contract, which for the fulfilment of the obligations of the surveying engineer must meet the requirements of section 9 of Decree 832, provisions 4, 5, 6, and 7 of the circular 94, both of 1884; the decree of the Secretary of the Treasury of the 15th of June, 1890, 319 the circular of the same office of 1896, number 1, and the decree of the same office of the 3d of April, 1897. Moreover, it will be subject in all cases to the approval of the government (section 4 of circular). A record will be made of the carrying out of the demarcation, and said record must contain: (1) name of land, situation, section, corregidor's district, and general district where situated; (2) name of cultivator; (3) area of land demarcated; (4) the boundaries within which the land is comprised, which also must be marked on the land itself in as clear a manner as possible, so as to avoid subsequent disputes between the cul- tivators themselves or with the owners of the adjoining land ; (5) whether there are or not cultivators that have settled on the same land demar- cated; and finally all the data and details concerning said act. This document must be signed by the Alcalde in charge, the party inter- ested, the expert, and the person acting as Secretary (article 6, alinea 5, of article 1, Decree 332 of 1884). If there are any cultivators that have settled within the boundaries of the land demarcated, the commission wiU survey and define by bounda- ries, both on the land itself and in the corresponding act, by means of clear and precise boundaries, their lots, specifying their extent etc. (ar- ticle 5, Decree 678 of 1890). The same proceedings will be followed by the surveying engineer when surveying the land (ahnea 5, article 1, of the Decree 832, and 4 of Decree 678 of 1890). After the Treasury has received again the docket with the record of the demarcation effected, or with the plans and statement of the engineer, which must be signed both by him and by the party interested or his legal agent, the work will be examined, and, if it is found that any changes should be made therein, they will be returned to the commission or the surveying engineer, as the case may be, in order that such corrections be made, and the changes needed will be enumerated in the order in which the return of all the documents is ordered (paragraph 16 of the circular). Adjudication. After such defects are put in order, and the documents are returned to the Secretary's office, a decree will be issued whereby the provisory adjudi- cation of the land is decreed, and where it is ordered that the correspond- ing document, together with a copy of the plan made up by the surveyor, be submitted to the Ministry of the Treasury. Both plans must be 320 authenticated by the Governor of the respective department, and his signature again must be authenticated by the Secretary of the Treasury {query: presumably by Secretary of the Treasury the departmental Sub- treasury is meant) (paragraphs 9 and 16 of the circular, and alinea 6; article 9, of the Decree 832). Upon retvu'n of the files from the Ministry of the Treasury the orders of said authority are complied with and carried out as indicated in tlie decree issued by it. If the same calls for a definite adjudication of the land, tlie Secretary of the Treasury will cause this decree to be communicated to the party interested, and tlie Alcalde of the respective municipality will be instructed to effect the deliA^erj^, provided that the adjudication is made under the head of Cultivator. If it is pursuant to an exchange of titles of concession, the decree of the Secretary of the Treasury will communicate to the party interested the ci. ^tents of that of the Ministry of the Treasury, leaving at the dis- posal of the said interested party the copy of the plan of the land which will be in the hands of the Secretary's office, in order that he proceed to petition for the delivery and possession of the land before the judge of the Circuit Court within the jurisdiction of whom the tract adjudicated is situated, in compliance with article 929 of the Fiscal Code (Decree 27 of 1897). Delivery. The delivery of the land will be effected pursuant to the case in hand by two officials, viz., the Alcalde of the district where the land is situated or by the judge of the Circuit Court of the same district (article 932 of the Fiscal Code, 1 of the Decree 27 of 1897, 1 of Decree 678 of 1890, and decree of the National Government of the 31st of October, 1898). It is effected by the Alcalde M^hen the adjudication of the land is made to the party as Cultivator, whatever may be the number of hectares ad- judicated, and by the judge of the Circuit Court Avhen the adjudication is by way of exchange of titles of concession, whatever may be the num- ber of hectares adjudicated (Decree 27 of 1897). If for some reason or other, the judge of the Circuit to whom it falls to do so cannot be present in person to effect the dehvery, he can instruct the municipal judge of the district to do so (Decree 27 of 1897). The delivery of the unappropriated lands adjudicated in behalf of any titles will be effected for the boundaries indicated in the decree of the Ministry of the Treasury by which the same definitely adjudicates the 321 land. When tbe delivery is effected pursuant to a change of title of con- cession, the copy of the corresponding plan must be exlribited (Decree 678, article 2, 1890). In the record made of the act of deUvery it must be stated whether or not colonists have settled within the confines of the land delivered, and the act must be signed by the officiating official, his secretary, the party interested, and by the State Attorney of the Circuit, provided that the adjudication be in exchange of titles of concession; also the private per- sons present, and who care to do so, can sign it (articles 1 and 3 of Decree 678). If at the act of delivery of the land any oppositions should be raised, when the land has been sohcited for adjudication by way of exchange of titles of concession, the judge will meet the requirements of article 8 of the Decree 678 of 1890. If it has been for a "Cultivator," it will not be listened to; but the official present at the delivery is bound to note down in the record made of the act the name or names of the cultivators settled within the dehvered land, the extent of cultivation made by them, and the boundaries thereof. This must also be done by the judge in his case (article 4, Decree 678, and Decree of the Ministry of the Treasury of June 5, 1893). After the delivery of the land has been effected, and after the act bear- ing thereon has been returned to the Secretary of the Treasury, the act of possession will be examined to make sure whether the delivering oflicial met all the requirements of the law on the matter. If any essential irregularity is noted which has occurred in the act of delivery, the documents will be sent back to the official in chai'ge of the delivery, indicating on the corresponding order of return the defects that exist for correction thereof, and, if the irregularity took place in the act of dehvery, he will repeat that. If the record of delivery shows no defect, the files are ordered to be sent to the Ministry of the Treasury to be deposited in the archives of that office (paragraphs 12 and 19 of circular 94). After the delivery has been effected of such land, the official in charge thereof will issue to the party interested the corresponding title, according as to how the adjudication has been made, that is: if by way of claim as Cultivator, a legalized copy of the act of adjudication (definite adju- dication) ; if by waj' of exchange of titles of concession, and if the party interested so demands it, a pubhc deed will be issued by the former in the form prescribed by article 931 of the Fiscal Code. 322 The files must contain a statement to that fact (paragraphs 12 and 13 of the circular 94, 1884). Feks. In the acts of demarcation and dehvery of land unappropriated, adjudi- cated on any title, the officials are only entitled to a carriage that may be required for conveying them to the place where the act takes place, but not to any other fees: the experts will receive from the party inter- ested the fees prescribed in the Judicial Code (circular 574 of October 15, 1890, issued by the Secretary of the Treasury of the Department of Tolima). 323 [Translated from N° 11, 1900, of Petermann's "Geogra- phische mitteilungen."] professor EDWARD SELER, PH.D. THE BOUNDARY DISPUTE BETWEEN THE REPUBLICS OF COSTA RICA AND COLOMBIA. (With Map) Everybody will admire the energy and persistence with which the Span- iards, the conquerors of the New World, endeavored to colonize, Christian- ize, and, above aU, exploit agriculturally and develop the vast tracts of land discovered by them. At the same time one will understand why only in a few privileged territories the success was quick and thorough, while other territories remained for a long time unexplored and unconquered, some of them, in fact, remaining so to the very end of the Spanish colonial sovereignty. Owing to the fact that the opening up of these remaining ter- ritories was at times tried by one, at another by some one else, disputes between the different districts of administration were but a natural outcome, and in a certain way the government felt the inabHity of solving the diffi- culties, not only because it found it difficult to bring about a correct de- marcation in territories unknown, but still more so because it was not always easy to ascertain in how far the crown had already been bound by previous decrees. And from the old Spanish administration districts the dispute was transmitted to the independent State units which became the successors and heirs of the former. In this manner, since the establishment of the American republics, boundary disputes have appeared everywhere, which were settled only gradually and are now more frequently settled by arbi- tration. Such a dispute existed until a short time ago between Costa Rica and Colombia, which has its origin in similar relations of the litigating parties, but which became particularly complicated here by the fact that in the old designations of the coast tracts and the territories belonging thereto there prevailed a great uncertainty, and that the same name was formerly used in a much more comprehensive meaning than afterwards. In order to correctly understand the quintessence of the subject of contest, some 324 historical determinations become necessary. The stretch of coast in ques- tion belongs to the parts of the continent of Central America that have become known earliest. Columbus had arrived on his fom-th trip, 1502, at the opening of the great bay which he called "Carambaru," while other historians call it Cerabora, Ceraboro, Zorobaro, and which later, after its discoverer, was designated as Bahia de Almirante, but which is also known by the name of Bocas del Drago, Boca del Toro. Along the forest-covered banks the ships whose rigging swept the overhanging branches had safe entrance in any weather, and, what was of more importance still to Columbus, he saw here for the first time on the naked chests of the natives large ornaments of fine gold, and heard of a land where the gold was mined, and which he really found, about twenty-five leguas further to the east, and which he believed to be the Asiatic continent, "the gold mines of the province of Ciamba, which I was seeking." It is the name of this gold country, Veragua, which in the controversy between Costa Rica and Colombia plays a very important part. It had not been possible for Columbus to enter with his vessels the river of Veragua, but in the mouth of a neighboring river, which he called Santa Maria de Belen, he found safe anchorage, and had been able to visit from there the gold mines which were not further than eight leguas removed therefrom. Full of great hopes he rettu-ned to Spain, but there he found that his great protectress Isabella, the Catholic, had died, and her husband, Ferdinand, was not willing to satisfy the extensive claims of Columbus. His son and heir, Diego Colon, instigated in 1508 a suit against the crown, which was carried along for many years undecided. In the meanwhile, there was found in the person of Felipe Gutierrez, son of a royal treasurer, Alonzo Gutierrez, an enterprising man who was willing to take charge of the colonization and opening up of the land. The widow of Diego Colon, Maria de Toledo, consented thereto, and thus with her consent, and by a royal ordinance of the 24th of December, 1534, Felipe Gutierrez was ap- pointed governor of the Province of Veragua, and in the capitulation drawn up on the same date this province was defined more closely as the territory between the ends of the province of Castilla del Oro, or Tierra Firma, and the Cape Gracias a Dios, that is, a stretch of coast was turned over to him which is now distributed amongst the three republics Colombia, Costa Rica, and Nicaragua. And, inasmuch as the southern demarcation could be doubt- ful, the governor of the Tierra Firma was instructed on the 14th of July, 1536, by a special ordinance, "that if the land of the Cazique Urraca (that is, the central plateau of the Isthmus, at the southern slope of the watersheds) 325 belonged to the territory of the Province of Veragua, no conquest nor coloni- zation and no barter should be attempted." The expedition of Felipe Gutierrez miscarried completely. When the news thereof came to Spain, the heirs of Columbus and the crown agreed to leave their dispute to the arbitration of Cardinal Garcia de Loaysa, President of the Council of the Indies. According to the arbitration deci- sion of the latter, which was accepted by the king, by an order of the 19th of January, 1537, the heirs of Columbus were to be compensated by the island of Jamaica, and a territory of twenty-five leguas square, in the province of Veragua, which, together mth the ducal title, was transmitted to them as the hereditary property. The surveying of the twenty-five leguas in the sqviare is minutely prescribed in the ordinance. They were to start at the river of.Belen, which was included in the territory, and were to be measured on the same degree of latitude to the western part of the Bay of Ceravaro (Bahia del Almirante) and beyond, if necessary to make up the twentj'-five leguas. From the terminal point, twenty-five leguas were to be measured on a meridian from north to south, and also at the starting point at the Rio Belen on the meridian of this river, and from the end of this latter twenty-five leguas, the southern side of this square was to be measured again on a degree of latitude to the end of the twenty-five leguaS measured on the meridian of the Bay of Ceravaro. Thus from the vast territory of the Province of Veragua, as it had been defined in the above-mentioned document, a small piece was cut out as the Duchy of Veragua. The rest was, by ordinance of the 2nd of March, 1537, put under the administrative district of the Tierra Firma or Castilla del Oro, but with the especial addition "tanto quanto nuestra merced e voluntas fuere," or "as long as we are gracious and willing," — in other words, as long as we shall see fit. Therefore two Veraguas existed thenceforth. The Duchy, which is also mentioned as the Ducado de Corabaro, which was the private property of the Colon family, and the remaining Veragua, also shortly called VeraguaJ over which the king exercised immediate sovereignty, and which for the time being he had transmitted to the governor of Panama for adminis- trative purposes. The opening up of the former, the duchy, had been trans- ferred in 1539, by instructions of the chief of the Colon family, to a Con- quistador just returned from Peru, Hernan Sanchez de Badajoz. The conquest and colonization of the latter, that is the royal Veragua, was also to have been transferred to the same Hernan Sanchez de Badajoz, such having been the intention of Dr. Robles, who at that time was Prfesi- 326 dent of the Audiencia of Panama, and whose son-in-law, Hernan Sanchez de Badajoz had become in the meanwhile. This commission which Dr. Roblez thought he was justified in giving to his newly gained son-in-law Hernan Sanchez de Badajoz was, however, considered by the king as an infringement on his rights, and was annulled. The conquistador who had penetrated from the mouth of the Tarire River into the valley of the Cazique Coaza, to Corotapa, and who had founded there a colony in the midst of a dense population of Indians, was recalled. At the court of Madrid there was at that time an enterprising man, Diego Gutierrez, another son of the royal treasurer, Alonzo Gutierrez, a brother of Felipe, who in 1536 had directed the unsuccessful expedition in Veragua, and to him the king conceded by a decree of the 16th of Sep- tember, 1540, the conquest of the remaining parts of Veragua which were subject to the royal administration, from the Bay of Carabaro as far as the Cape Camaron. In spite of the objection of the governor of Nicaragua, the right was also conceded to him to occupy the land at the " Desagua- dero" as far as fifteen leguas below its outlet out of the large fresh-water lake (Lake Nicaragua). The capitulation which was concluded on the 29th of November, 1540, with Diego Gutierrez, is interesting for the reason that here, for the first time, the name of Cartago is used for that part of the old province of Veragua which remained after the elimination of the duchy of that name, while in the papers referring to the undertaking of Hernan Sanchez de Badajoz the name of Costa Rica appears for the first time for the same territories. The expedition of Diego Gutierrez was unsuccessful. To be sure, he succeeded in 1543 in getting a foothold at the mouth of the Sueri River, but he was not able to retain the colony there for any length of time, and when he sought for points of support further inland, he was attacked by the Indians at Tayutic where he and twenty-six of his companions fell. The right to continue the enterprise was reserved for his son and heir, but was finally suspended indefinitely as far as the execution was concerned. As here, in the Royal Veragua, the enterprises were unsuccessful, so it happened also in the duchy of Veragua, where the enterprises started by the Colon family since 1546 had no success whatever. A grandson of the discoverer, Francisco Colon, died in battle. Finally, in 1556 the family ceded the unprofitable possession again to the crown, against a pension of three thousand ducats. Thus the two Veraguas had again become the immediate possessions of the king, but they were not combined into one. The duchy, which retained the name of Veragua, was left, under the 327 supervision of the Audiencia of Panama, for colonization to the citizens of Nata, a Spanish city situated on the Pacific coast just at the far side of the duchy. The heutenant-governor of this city, Francisco Vasquez, ob- tained in connection therewith considerable results. He penetrated in 1558 as far as the watershed, discovered the gold mines of Turula, and founded, on the northern sea, the colony of La Concepcion, which since then bears its name therefrom. The colonization of the other part of the old province of Veragua, which it became since then customary to call Nueva Cartago, or Costa Rica, was also started successfully and from the Pacific coast, from Nicaragua. In 1560 Juan de Cavallon was given the necessary authorization by the Audiencia of Guatemala, and by a letter of the 15th of February, 1561, the king consented thereto. Juan de Gavallon penetrated from Nicoya into the territory of the Guetar, and founded there the city of Castillo de Garci-Muiioz. The simultaneous expedition of Father Juan de Estrada, who, on instructions from Juan de Cavallon, was to descend the "Desaguadero," and was to found a city of the name of Castillo de Austria, at the port of San Geronimo, on the coast of the northern sea, failed absolutely. More successful than the former were the explorations of Juan Vasquez de Coronado in the subsequent years. He subdued on the Pacific coast the villages of the Couto and Boruca, and founded in the warm and fertile valley of the Guarco the city which, after this province, was called Car- tage.- His captains, Peyerra and Diego de Trejo, penetrated from the Pacific side in the direction of Nata as far as the Llanos de Chiriqui, Cia, Xarixava, and Yado. And he himself, with his entire forces, moved from Boruca over the central cordillera, into the Valle del Guaymi, which opens towards the Atlantic side, and is populated by numerous Indian villages. This VaUe del Guaymi is identified with the valley of the Cazique Coaza which Hernan Sanchez de Badajoz had reached. From the Valley del Guaymi he came into the provincia del Duy, which is situated not very far from the islands of Zorobaro, that is, the Bahia del Almirante, and he then returned to Cartago by way of Tariaca, Tococi, Tuyotique, and Atirro. Similar distant expeditions were undertaken by Perafan de Ribera,, successor of Vasquez de Coronado, and the successor of the former, Diego de Ai-tiega Cherinos, was authorized directly by the king to take possession along the coast of both seas as far as the boundaries of the province of Veragua, being instructed at the same time to found three Spanish cities, one at the Bocas del Drago, that is, on the Bahip, del vUmirante, another in the Valley of Guanco, and the third one (on the Pacific side) in the Prov- 328 ince of Garavito (capitulation of Philip the Second in El Paso, December 1st, 1573). At the same time, however, the governors of Veragua who had their seat in Concepcion de Veragua made expeditions into the valley of the Guaymi, whicli they considered as l^elonging to their administrative district, or wanted to consider in that light, protesting at the same time against the further advance of Diego de Artiega. By a letter of the 30th of August, 1576, the king was therefore forced to instruct the Audiencia of Guate- mala to ascertain to which administrative district the Rio del Guaymi,. the Bocas del Drago, and the Bahia del Almirante belonged. To be sure, we do not know whether the said Audiencia caused an examination to be made and what was the result thereof, but the fact is that in the year fol- lowing, not at the Bocas del Drago, but on the Guaymi River, Diego de Artiega founded the Ciudad del Artieda de Nuevo Reino de Navarro, which to be sure, like the other settlements in this tropical forest coast, was not of any lengthy duration. A lasting settlement and colonization of the country was only successful for the Spaniards in the valleys of the interior, lying in front of the foot of the northern transverse series of volcanoes. The eastern boundary districts, the forest • districts on the Bahia del Almirante as well as the Llanos at the Golfo del Osa always formed an unsubdued and unexplored territory which from time to time was invaded, sometimes from one side and sometimes from the other, by expeditions and missions, practically without success. Both the Gobernacion of Costa Rica and that of Veragua were able to refer to royal letters encouraging such work. On the Pacific side, on the whole, the Punta de Burica was maintained as the boundary of the sphere of influence between the Audiencia de Guatemala which was the superior of the Gobernacion of Costa Rica, and the Audiencia de Panama or the viceregal office of Santa Fe de Bogota to wliich up to 1773 (for the former) and subsequently thereto (for the latter) the territory of Veragua' was subject. This is also expressed on the map made by the governor Lorenzo del Salto in the year 1620, and it is this map of Veragua which Manuel M. de Peralta found in the Archivo de Indias and which is reproduced in the 19th volume of the Review of the Society: " Gesellschaft fuer Erdkunde in Berlin." On the Atlantic side, however, the governors of Veragua always claimed, for themselves the dominion as far as the river Tariri, while the authorities of Costa Rica have never ceased to consider as subject to their sphere of influence the Bahia del Almirante, and that more or less in its entire extent, 329 that is, about to the river Cliiriqui, or Calabebora, or the Jand situated in front of the mouth of the same, which in old doctmients is usually called the Escudo de Veragua. The Rio Chiriqui el Viejo (old Chiriqui River) which flows into the sea east of the Punta Burica, and the Escudo de Veragua, have also been proclaimed in the constitution of Costa Rica of January 21st, 1825, as boundaries against Colombia. A status quo which Colombia virtually recognized in the treaty concluded on May 15th, 1825, in Bogota, and ratified July 9th, 1826. Veiy soon, however, the Colombian govermnent showed the intention to secure for itself the valuable ports at the Bocas del Toro, and the districts at the Golfo del Osa or Golfo Dulce. By a resolve of the chambers of May 30th, 1836, a Colombian official .was placed on the islands of Toro. More extensive claims were eloquently insisted upon by the Colombian writer Pedro Fernandez Madrid. After repeated efforts had been made to bring about a boundary regidation by means of a treaty and after repeated trangressions, complaints, and counter- complaints had been made, it was finally agreed in the treaty concluded at San Jose on the 25th of December, 1880, that the controversy be submitted to an arbitrator, and in the additional convention concluded at Paris , January 20th, 1886, Costa Rica proclaimed as boundaries claimed by it on the Atlantic side the Escudo de Veragua and the Rio Chiriqui or Calobebora and on the Pacific side the Rio Chiriqui el Viejo which flows into the sea to the east of the Punta Burica, while Colombia claimed on the side of the Atlantic the coast as far as the Cape Gracias a Dios, and on the side of the Pacific the opening of the Rio Golfito into the Golfo Dulce. Originally, King Alfonso XII. of Spain was chosen as arbitrator, but he died, however, in 1885, By a new convention, concluded November 4th, 1896, and ratified January 5th, 1897, the President of the French Republic was definitely ap- pointed arbitrator. As is customary, the Costa-Rican-Colombian boundary controversy has called forth not only a series of smaller or larger polemic treatises, but also very profound studies which are of most extraordinary value for the history and geography of the territories in question. In connection with that we must mention above aU the archivistic studies of Manuel M. de Peralta, ambassador of the Republic of Costa Rica to the courts of Europe. In the polemic treatises enumerated in the note the boundary claimed by the Republic of Costa Rica, which in the additional convention of Paris January 20th, 1886, had only been determined by its extreme point, is de- fined more in detail as follows : From the Escudo de Varagua southward to the mouth of the river Chiriqui now so called flowing into the Atlantic 330 Ocean and following its course up stream as far as the source thereof at the Cerro Santiago, then along the watershed cordillera over the Cerro del Hornito Cumbre de la Playita and the Cerro de la Horqueta to the eastern principal source of the river Chiriqui Viejo and descending the latter to its mouth in the Pacific Ocean east of Punta Burica. More exactly the bovmdary claimed by Colombia is described as follows : From the mouth of the Rio Golfito in the Golfo Dulce, on the Pacific Ocean along a meridian which crossing the Rio Goto which flows into the Pacific Ocean, and the rivers Lari and Coen which are tributaries of the Tiliri or Sigsaula, and therefore flow towards the Atlantic Ocean, reaches the Tiliri or Sigsaula at 90° 33' northern latitude, and 85° 31' 30" western longitude of Paris (83° 31' 16" western longitude from Greenwich), and from this point in a straight line to the mouth of the Rio Saratiqui where it flows into the Rio San Juan, at 10° 43' northern latitude and 86° 15' western longitude of Paris (83° 53' 46" western longitude from Greenwich). The reasons which the representatives of Costa Rica adduce for the frontier claimed by them are based above all on the manner in which they measure the twenty-five leguas square, which, according to the royal ordinance of the 15th of January, 1537, were to be cut out of the province of Veragua for the Colon family, for even Costa Rica does not deny that these twenty-five leguas in the square — that is, the old duchy of Veragua— belonged at all times to the administrative district of Panama, and namely from 1773 to the viceroyalty of New Granada, wherefore they now must fall to Colombia. Pursuant to the text of the royal ordinance Peralta measures the twenty- five leguas on the latitude of the river of Belen, but he measures them on the TRUE latitude which passes entirely outside the Bahia del Almirante, south of it, and he reached the result that he fixes the western extremity of the duchy of Veragua at 8° 54' northern latitude, and 82° 6' or 82° 16' 42" west longitude of Greenwich, according as to whether one allows twenty leguas or only 17i leguas per degree, the latter being the legu^ of Burgos. As against that Colombia asserts, and it seems justly too, that in the royal ordinance it had been said expressly that the boundaries of the duchy of Veragua were to reach to the western part of the Bay of Caravero (or Bay of Almirante) and, if necessary, beyond that; further, that according to the wording of the royal ordinance the whole duchy was to be called Bahia de Carabaro, and was actually called Ducado de Corobaro, for instance in the royal ordinances signed at Valladolid on the 26th of February, 1528, and that it was therefore impossible that the Bahia del Almirante could be left en- 331 tirely outside of the boundaries of the said duchy. In fact, it is ahnost cer- tain, and the old maps confirm this too, that the geographers of the king assumed the course of the coast as being exactly from east to west, and that they therefore wanted the twenty-five leguas measured along the coast to the western part of the Bahia del Almirante. It is even probable that in the controversy between the king and the heirs of Colon the arbi- trator only conceived the idea of prescribing twenty-five leguas square for the duchy because he desired to include the Bahia del Almirante, and the gold mines of Veragua in the duchy, for twenty-five leguas is the very dis- tance which in his letter of July 7th, 1503, written in Jamaica, Columbus calculated from Carambaru, i.e. Bahia del Almirante, to the gold mines of Veragua. The representative of Costa Rica believes that he can derive further from other reasons a title for his state to the whole Bahia del Almi- rante, inclusive of the eastern part thereof, which to-day, as a rule, is desig- nated by the name Laguna de Chiriqui. He asserts that the various ex- plorers, basing on the royal order which authorized them to extend their occupancy and colonization to the boundaries of the duchy of Veragua, also took possession of the districts at the Bahia del Almirante, and had founded there colonies, Diego de Artieda having actually been commis- sioned to settle one of the three Spanish cities which his contract obliged him to found, at the Bocas del Drago, or Bahiadel Almirante. According to Peralta, both Corotapa whither Hernan Sanchez de Badajoz was said to have penetrated, and also the Valle de Guaymi and the canton of Duy, are situated on the shores of the Bahia del Almirante, and he identifies the Puerto of San Geronimo with the Bahia del Almirante, and the Rio del Guaymi with the Cricamola River, which at the southeastern end of the large bay flows into the Lagvina de Chiriqui, and he therefore also places the two ephemerous Spanish settlements Castillo de Austria of Father Juan de Estrada, and the Ciudad de Artieda, founded by Diego de Artieda, the former at the western and the latter at the eastern end of the Bahia del Almirante. 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