Pedro Pérez Zeledón.

Reply to the argument of Nicaragua on the question of the validity or nullity of the Treaty of Limits of April 15, 1858, to be decided by the President of the United States of America, as arbitrator online

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Online LibraryPedro Pérez ZeledónReply to the argument of Nicaragua on the question of the validity or nullity of the Treaty of Limits of April 15, 1858, to be decided by the President of the United States of America, as arbitrator → online text (page 1 of 14)
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RK F»LY

TO THE

ARGUMENT OF NICARAGUA



QUESTION OF THE VALIDITY OR NULLITY OF T
TREATY OF LIMITS OF APRIL 15, 1858. ^^



TO BE DECIDED BY



The President of the United States of Americ



AS ARBITRATOR.



FILED ON BEHALF OF THE GOVERNMEXT OF COSTA RICA

BY

F>EDRO PKREZ ZELEIDON,

ITS ENVOY i;XTR.\ORniN.\RV AND MINISTER PLENIPOTENTIARY
IX THE LMTICD STATES.

(TnASi-LATED INTO English by J. I. Rodriguez.)



WASHINGTON' :

Gibson Bbos., Primters and Bookbinders.
1887.



^



liJs^L/^^



R E FV



ARGUMENT OF NICARAGUA



QUESTION OF THE VALIDITY OR NULLITY OF THE
TREATY OF LIMITS OF APRIL 15, 18^8,



TO BE DECIDED BY



The President of the United States of America.



AS ARBITWATOR,



FILED ON BEHALF OF THE GOVERNMENT OF COSTA RIGA

r



PEIDRO F»EREZ ZELEOON,

ITS ENVOY EXTRAORDINARY AND MINISTER PLENIPOTENTIARY
IN THE UNITED STATES.

( Tkanslatei) into English by J. I. Kodriguez.)



WASHINGTON :

GiHSON Bkos.. Printei s and Bookbinders

1887.



67 Pf



LIBRARY

XJNTVERSITY OF CALIFORNIA

SANTA BARBARA



v1

CONTENTS



INTKODUCTION, :i

PART FIRST. — Historical Antecedents.

Chapter I.

Limits of the ancient Province of Nicaragua, .... 9
Chapter II.

Limits of Costa Rica, ......... 30

PART SECOND. — Elucidation of the Principal Point.

Chapter I.

Arguments of Nicaragua against the validity of the treaty of April
15, 1858, 39

Chapter II.

The Treaty of Limits was made in strict jjursuance of the funda-
mental law in force in Nicaragua at the time of its conclusion, 41

Chapter III.

Demarcation of the territory' of Nicaragua according to her first
Constitution, promulgated April 8, 1826. — Nicoya, . . .48

Chapter IV.

Demarcation of the territory of Nicaragua according to her first
Constitution. — Southern bank of the San Juan river, . . 5fi

Chapter V.

The Convention of Limits of 1858 is an international treaty like
any other, and not an unfinished amendment to the Nicaraguan
Constitution, .......... 59

Chapter VI.

Even granting that the treaty of 18.")8 involved a cession of terri-
tory, this cession could be made by only one Legislature, ac-
cording to the Constitution of 1838, . . . . .62

Chapter VII.

Whether the treaty of 1858 was exchanged before it was ratified, 64
Chapter VIII.

Whether the treaty of 1858 was rather imposed upon Nicaragua
than accepted by her. ........ 68

Chapter IX.

Whether the Treaty of Limits is null for want of ratification by
the Government of Salvador, . . . . . .71



76



IV



Chapter X.

NVhether Nicaragua can repudiate the Treatj- of Limits for being
pernicious, .........

Chapter XI.

Constant recognition by Nicaragua, until 1872, of the validity of
the Treaty of Limits. 79

Chapter XII.

Importance of the documents referred to in this chapter for de-
stroying the effect of the persistence with which Nicarngua has
maintained, ever since 1872, the non-validity of the Treaty of
Limits, ......... .83

CONCLUSION, 89

DOCU:HENTS.

No. 1.

Royal Ordinance of February 10, 1576, for the reduction of the
Province of Tausgalpa, situated to the north of the San Juan
river, ............ 101

No. 2.

The President of the Koyal Audieucia of Guatemala transmits to
the Governor and to the Most Noble Corporation of the City of
Cartago a resolution bj' which the election of members of the
Spanish Cortes for Costa Rica and Nicoya was ordered to be
made at that city. — It appears, from this Document, that the
District of Nicoya had actually been annexed to Costa Rica
ever since May, 1813. about eight years before the independence
from the mother country, 103

No. 3.

Tkfc first Constituent Congress of Costa Rica directs that the Dis-
tricts of Nicoya and Santa Cruz should be considered as tempo-
rarily annexed to the State, and protected as such, . . 105

No. 4.

Measures taken by the Constitutional Assembly of Costa Rica to
carry into e^ecution the Federal Decree which annexed the Dis-
trict of Nicoya to her own territory, ..... 106

No. 5.

Extracts from tlie Constitution of the State of Nicaragua of April
8, 1H26, showing that at that time the District of Guanacaste or
Nicoya was not an integral part of the State, but had been, by
its own will, and with the sanction of the Federal Power, an-
nexed to th(^ biirdcriiig State of Costa llica, .... 107
No. C.

Scbi-dulf sliowing tin- way in which the districts of the State of
Costtt Rica should elect their deputies, ..... 110



No. 7.

The District of Nicoya culled to take part in the election of the
Supreme Federal authorities, by order of the Congress of Costa
Rica, and as an integral part of the latter State, . . .111

No. 8.

Nicoya is granted the right to take part in the election of the Su-
preme authorities of the State of Costa Rica according to the
Constitution thereof, 113

No. 9.

The Nicaraguau territory ends at the La Flor river, . . . 115
No. 10.

The Constitutional Assembly of Costa Rica enacts several meas-
ures for the cultivation of certain lands belonging to the State,
situated on the right bank of the San Juan del Norte river, . 116

No. 11.

The village of Guaiiacaste is raised by the Government of Costa
Rica to the category of a town, ...... 119

No. 12.

The town of Santa Cruz (iu the District of Nicoya) has a Repre-
sentative in the Assembly of the State of Costa Rica, . . 120
No. 13.

Instructions given to the Special Commissioner of the Govern-
ment of Costa Rica to visit the Districts of Nicoya and Bagaces, 121
No. 14.

Classification of the towns of Costa Rica in reference to home
government and Treasury matters, ...... 124

No. 15.

Guanacaste is declared to be one of the five judicial districts of

Costa Rica, 126

No. 10.

The faithfulness of the District of Nicoya, and its services subse-
quent to its incorporation to Costa Rica, are recognized and
rewarded, ........... 127

No. 17.

The rank and title of City is given to the town of Guanacaste in
recognition of the servi('es rendered by it to the State by resist-
ing the invasion of Manuel Quijano, 129

No. 18.

Schedule for the election of deputies to the Constituent Assembly
of the State, at the rate of one deputy for each 5.000 souls, and
fractious of that unit to the number of 3.000. — The letter A.
means the jjlace where the parochial electors must meet, and
the letter B. shows the place where the district electors must
meet 131



Tl



No. 19.

The Constituent Assembly of Nicaragua of 1838 gives power to
the Executive to enter into a treaty with the Envoy of Costa

Kica, .... - 132

No. 20.

Law enacted by the Constituent Assembly of Nicaragua on De-
cember 21. 1838. to carry into efifect Article II of the Constitu-
tion of the same year, ........ 133

No. 21.

Provisions of the Decree of Bases and Guarantees of March 8,
1841. in regard to Costa Rican Territory 135

No. 22.

The Constituent Assembly of Costa Rica of 18-12 declared that
the Province of Guanacaste is an iutegral part of the national
territory, and that it is incumbent upon the honor of the na-
tion to repel the aggression attempted by Nicaragua, . .137

No. 23.

Revenue posts are established on the Sarapiqui and La Flor rivers, 130

No. 24.

The Congress of Costa Rica ai^proves the Executive Decree which
establishes military revenue posts on the Sarapiqui river and
the western frontier of Nicaragua, ...... 141

No. 25.

The road which leads to the La Flor river, the frontier of the
States of Costa Rica and Nicaragua, is ordered to be repaired, 142

No. 20.

Bases for the formation of a Company, named the Sarapiqui Com-
pany, for the opening of a road from San Jose to the Sarapiqui
river, and for thi' navigation of the said river, in order that the
exportations of Costa Rica may be made through the Shu Juan
river. ... ......... 144

No. 27.

Costa Rica prohibits the navigation of the San Cdrlos river, an
afllucut of the San Juan, ami prt^scribcs penalties for the trans-
gressors, ........... 147

No. 28.

Costa Rica grants to the firm of Kirkland A: Goering the jirivilege
of steam navigation on the Siipo.-i river, and of establishing a
route of transit from the BolaHos Bay to the Lake of Nicara-
gua ; the grantees being authorized to use the waters of the
r..ake and of tiic San Juan and ('olorado rivers, in so far as they
bclouf.' to Costii I{i(ii. 148



Til



No. 29.

The Government of Costa Rica accei^ts the apology made by the
Government of Nicaragua for having trespassed with its forces
upon the dividing line between the two States, that is, the La
Flor river, boundary of the Costa Rican Province of Guana-
caste, 1.50

No. 30.

Congratulation of the peoijle of Leon to the Costa Rican Army
upon the seizure of the steamers and its control of the river
and Lake, 153

No. 31.

Seizure of the steamers of the San Juan river and the Lake of
Nicaragua.— Official news from the Army. — Another triumph.
— Go ahead I — The war nearly at an end, ... . 154

No. 32.

Proclamation of the President of Costa Rica upon the seizure of
the steamers and the control of the San Juan river and the
Lake of Nicaragua, ......... 156

No. 33.

Opinion of the Government of Guatemala in regard to the action
of Costa Rica during the war against Walker, and especially in
the affair of the seizure of the steamers, ..... 158

No. 34.

What happened in Nicaragua after the seizure of the steamers by
the Costa Rican forces . . 159

No. 35.

What, in 1857, was thought in Nicaragua in regard to the blow
inflicted by Costa Rica upon Walker on the San Juan river and

the Lake of Nicaragua, 161

No. 36.

The public opinion of Nicaragua in regard to Costa Rica in 1857, 163
No. 37.

Gratuitous grant of lands along the course of the Sarapiqui river
down to its confluence with the San Juan river, for agricultural
purposes. ........... 164

No. 38.

Provisions of the Niearaguan Constitution of August 19, 1858, in
regard to limits and the division of the National territory, . 167

No. 39.

Schedule of the Judicial Division of the territory of the Republic
of Nicaragua, 170



•vui



No. 40.

A road is ordered to be opened from the Capital to the Sarapiqui
river. ............ 173

No. 41.

Concessions made by Costa Kica for steam uavigation upon the
Sarapiqui and San C.irlos rivers, and for carrying the mail from
the wharf on the Sarapiqui river to San Juan del Norte and pice
tersa, ............ 174

No. 42.

Costa Kica is recognized as a party to the canal grant made to

Mr. Belly 175

No. 43.

A tax for the benefit of the public instruction of the Province of
Guanacaste is levied upon the exportation of wood shipped on
the Pacific coast between Cape Blanco and the Gulf of Salinas, 17(5
No. 44.

New rules enacted in regard to timber within the zone of the Sara-
piqui and other rivers of the Republic on the .\tlantic side, . 178
No. 45.

Costa Rica approves the contract of interoceanic canal entered

into with Mr. Felix Belly, of Paris 181

No. 40.

Territorial Division of the Republic of Costa Rica for Electoral
purposes, after the treaty of limits of April 15, 1858, . . 182

No. 47.

The Custom authorities of Costa Rica exercising jurisdiction on
the frontier established by the treaty of 1858, .... 183
No. 48.

Concessions made bj' Costa Rica for Steam Navigation on the
Sarajiiqui, San Cdrlos, and other rivers tributaries of the San
Juau river, and the Lake of Nicaragua, and for the building of
a road from the interior of Costa Rica to the Sarapiqui river.
or to any other river affluent to the San Juan, ... 185

No. 49.

Municipal territorial division of Costa Rica subseciueut to the

treaty of limits of lH.58, 187

No. 50.

Grant miidt- in favor of ])tni Jost? .\utonio Chamorro for the build-
ing of a road t(» tlie ImiikH of the San Juau river. . IHH
No. 51.

Measures taken in regard to the (Juatuso [ndians, occupying the
plains of the Haiiio name in the Rio Trio river in the territorial
iurisdiction of the Province of Alajuola, south of the Lake of
Nicaragua and the Sun Juan river, IHi)



IX



No. 52.

Dr. Don Eiiamiuoudas Uribe, Commissioner of the Government
of Costa Kica, visits the San Juan and San Carlos rivers, and
suggests some measures for the foundation of two Costa Rican
towns — one at Punta de Castilla and another at the confluence
of the San Carlos and the Peflas Blancas rivers, . . . 192

No. 53.

The official organ of Nicaragua publishes the estimate of the work
to be done on the river and port of San Juan according to sur-
veys made by a mixed commission agreed upon between the
Governments of Costa Rica and Nicaragua, .... 197

No. 54.

Editorial of the " Gaceta Oficial " of Nicaragua on the reception
in Costa Rica of the Nicaraguan Minister, Don Mariano Mon-
tealegre. — Costa Rica is recognized as bordering upon the San
Juan river, as joint possessor of the navigation of the same, and
as much interested as Nicaragua in the Interoceanic Canal en-
terprise, 198

No. 55.

The exportation through San Juan de Nicaragua of the natural
products of the public lands of Costa Rica, such as timber, sar-
saparilla, rubber, balsams, resin, &c., is prohibited, in order to
prevent the natural wealth of the northern section of the Re-
public from being destroyed, ....... 201

No. 56.

The territorial jurisdiction of the " Comarca " (district) of Limon
is created. — The limits given to it are from Punta de Castilla,
frontier of Nicaragua, to the United States of Colombia, . . 203

No. 57.

Origin of the Martinez-Jerez Duumvirate. (From Memorias para
la historia de la camjiana nacional contra el filibusterismo —
1856 y '57 por Jer6nimo Perez). Masaya. 1873, . . .205

Chronological epitome of historical facts connected with

THE territorial DEMARCATION OF CoSTA KiCA AND

/ Nicaragua, 206



INTRODUCTION.



INTRODUCTION.



Two are the questions submitted to the arbitration of the
President of the United States of America under the treaty of
Guatemala of December 24, 1886. One, which is the princi-
pal, refers to the treaty of limits between Costa E-ica and Nic-
aragua, which was concluded on April 15, 1858, and to its
validity or nullity. The other, which is supplementary, or
secondary, refers to the interpretation to be given to certain
points in the said treaty alleged to be doubtful.

It was stipulated in the treaty of arbitration that both ques-
tions should be simultaneously discussed and decided, upon such
proceedings, and within such periods of time, as follows :

1st. Within ninet}'' days, subsequent to the acceptance of the
Arbitrator, the arguments and documents of the two parties
should be filed.

2d. Within eight days^ subsequent to the above, the argu-
ments and documents of each party should l)e communicated
to the other,

3d. Within thirty days, subsequent to the above, the reply of
each party to the argument and documents of the other, should
be submitted.

4th. Within a period of six months, and by onl}'^ one and
the same award, all the questions should be decided.

In spite of this, which under the provisions of the treaty
of Guatemala is plain, the Ilepul)!ic of Nicaragua has reserved
for some future time her argument upon the second supple-
mentary question, and comes and says that she holds herself
in readiness to submit that argument, when the principal ques-
tion is decided, or when the Arbitrator declares that the oppor-
tunity to do so has arrived, by signifying his intention of en-
tering upon the interpretation of doubtful points.



The defense of !N^icaraoi:ua ought to have understood, from
the unity of proceedings wliich, under the express provisions
of the treaty of Guatemala, characterizes the present arbitra-
tion, that the periods of time granted to both parties for the
tiling and answering the arguments on the two questions were
not double, but simple ; and that the two questions should be
discussed together and decided at the same time l»y one and
the same award.

The text of the treaty of arbitration is so extreme!}' plain
in this respect that the division attempted by Nicaragua can-
not be satisfactorily explained. But, whether explained or not,
the fact is that it cannot be allowed, because Nicaragua Mnxild
then enjoy, in the present discussion, an undue advantage over
Costa Rica, by being permitted to make her argument and
exhibit her documents, at such time before tlie detiision as
might be suitable to lier purposes, while Costa Rica would be
deprived of the right of reading and refuting, at the time
provided for by the treaty, the arguments and proofs of her
opponent.

The treaty of arl)itration plainly states that the tirst period
of the del)ate, and no other, is the one wherein the briefs and
evidence of either party should l)e tiled. Neither of them can
pretend to enjoy other and different opportunities, in regard to
time, or otherwise, as are granted l)y the treaty.

The Government of Costa Rica has never enicrtaincd any
doubt as to the constru<-tion to be [)la('f <1 upon the treaty of
limits, the language of which seems to I. and to everybody
else not prejudiced, to be perfectly phiin. And yet, acting
with that sincerity which becomes a controversy of this kind,
it has not hesitated \<< frankly expi-ess its own o|>iiii(in upon all
the rpu'stions whi(;li tlie Government of Nicaragua propounded.

l>ut the Nicaraguan (Tovernment, after pi-esenting the strange
<l(»ubts wliicli 1 ccnrred to it, and rornnilating tlieni by means of
extremely brie i' jtropositiotis ditlicult to understand, instead of
cvplainitig them as frankly and extensively as required, within
tlie time in which Hiich a thing was possible, now comes and says



that it will enter into such explanations afterwards, at such mo-
ment as may be pleasinf^ to it, or suitable to its purposes.

The Government of Costa Rica refuses its assent to any
change or alteration in this way by the Nicaraguan Govern-
ment of the provisions of the treaty of Guatemala.

I must say, also, a few words in regard to another point,
of no less importance, referring to the distinction necessarily
to be made between the questions wliich are the exclusive
subject of the present arbitration and another different ques-
tion which may eventually arise hereafter. The questions
submitted to the present arbitration arc, in substance, whether
THE treaty of April 15, 1858, is or is not valid, and what is
the construction to be placed upon some of its provisions ? The
other question — an essentially different one, — not actual, but
potential or eventual, — which will never arise except in case
that the treaty of 1858 is adjudged void, — which is not, by any
means, before the Arl-itrator, — and which, if it ever comes up,
will come up in a forui and on terms not yet agreed upon by
the two Ilepubli(!s, — is to find out which were the respective
territorial liviits of the tivo countries p)'^ior to 1858.

In other words, the question now under discussion is not
" WHICH were the territorial limits of Costa Rica and Nic-
aragua prior to 1858 V but simplj^ to determine the validity
or invalidity of the treaty concluded on the 15th of April,
1858, for the purpose of fixing the frontier between the two
Republics.

Wliatever has been said, or may be said, by eitlier party
in regard to limits prior to 1858 has to be considered only
as historical illustrations, but never as a matter of direct, im-
mediate, and actual concern.

No opportunity exists at present to pass judgment upon tlie
strength and efficiency of the Royal Ordinances and Letters-
Patent of the Crown of Spain, speaking of limits between
Costa Rica and Nicaragua, or to decide the questions of pub-
lic law arising out of the incorporation of Nicoya into Costa
Rica, in 1824, approved by the Federal Power and accepted
by Nicaragua by her first Constitution.



Those matters will be amply discussed at the proper time,
if the opportunity to do so should ever pi-esent itself ; and
then both Governments shall tile such documents as may sup-
port, respectively, their different conclusions.

To decide the question of the day, the only one before the
Arbitrator, as Nicaragua pretends, upon bases whi(?h cannot
be estal>lislied solidly without a previous and thorough knowl-
edge of tlic ancient limits, would be to answer in advance a
question wliich has not been submitted, nor presented or de-
bated. It would be to prejudge tiie question without sutti-
cient knowledge of the subject. It would be to involve, at
the risk of nullity, things which the parties to the arbitra-
tion themselves distinctly separated in the treaty signed by
them at Guatemala.

The Government of Costa Rica entertains the firm confi-
dence that neitlier the tendency shown by the argument of
Nicaragua to involve and confuse those questions will find
any encouragement in tlie i-ighteous and enlightened mind t)f
the Arbitrator, nor that Costa llica will be refused full defense
of her rights, and absolute and strict equality with Nicaragua.



PART FIRST."



PART FIRST.

HISTORICAL ANTECEDENTS.



Chaptek I.

LIMITS OF THE ANCIENT PROVINCE OF NICAEAGUA.

The present chapter, as well as the one following, in hoth
of which the frontiers of Costa Rica and Nicaragna, prior to
the treaty of April 15, 1858, are defined, might, without any
impropriety, he eliminated from the present reply, hecanse, as
it has l)een said in the introduction, such is not the suhject of
this controversy. But wishing, on the one hand, not to leave
any portion of the argument of Nicaragua unanswered, and
thinking, on the other hand, that it is in tlie interest of Costa
Rica to show that the treaty of 1858, far from enlarging her
territorial rights, actually abridged them, it has been deemed
necessary to devote a portion of this paper, as was done in the
former one, to some historical considerations, which, although
relatmg to matters not the subject of the arbitration, are, nev-
ertheless, conducive, as it cannot be doubted, to the illustration
of the question at issue.

The defense of Nicaragua has confused two questions which
the treaty of arbitration distinguished with particular clear-
ness, and the interrogatory, " which were the ancient limits
of the Province of Nicaragua ? " constitutes a cardinal basis
of her argument. In answer to that interrogatory she has
confiiied herself to simple assertions, supported only by incom-
plete and extremely compendious quotations fi-om several Royal
Ordinances and from different writers; l)ut no document em-
anating from the sovereign has been filed which shows what
the limits were during the Spanish rule.



10

It is asserted by the defense of Nicaragua that the Desa-
guadero or San Jnun river belonged ab initio to that Eepnblic :
but this assertion is not correct, either legally or historically.
Before refuting it, I must, however, be allowed to call attention
to the change of basis which is noticed in that defense.

When Senores Don Tomas Ayon and Don Anselrao H.
Rivas, Ex-Secretaries of Foreign Relations of Nicaragua, spoke
for that Republic and defended her, the Desaguadero and the
San Juan river were not oni' and the same thing; and the San
Juan river had no more than one mouth ; and the Desaguadero
was situated in the Matina valley far south of the Colorado
river. ^

Now that the defense of Nicaragua is entrusted to other hands,
the Desaguadero is the same as the San Juan river ; it has not
one but three mouths ; and the frontier of Costa Rica is not
to be found in the Matina valley, l)ut on tlie right bank of the
moutli of the Colorado river.-

Such variety and indecision in regard to such a capital point
plainly reveal that Costa Rica has alwa^'s had reason on her side ;
and tliat Nicaragua, ranch against her will, sees herself com-
pelled now to acknowledge it, at least, by plainly confessing that
their Secretaries of State who shouldered the burden and re-
sponsil)ility of e.\pt)unding and defending her rights, commit-
ted an ei'ivtr.

The truth is that the Desaguadero is the same as the San
Juan i-iver, and that, although the waters of this stream have
several outlets into the Atlantic, the historical and commer-
cial mouth pai' excellence^ the one recognized by the discover-
ers of the river, fortified during the colonial regime, the
thoroughfare of trallic; in the last years of that period, the
vehicle of (Central American conunerce from the Independence
up to some years sul»se(pient to the treaty of 1858, when the
pf)rt of San Juan became deteriorated, was always the mouth



' Suo paj^cs 40 ftnd 41, ArRUinenl of Costa Rica.


1 3 4 5 6 7 8 9 10 11 12 13 14

Online LibraryPedro Pérez ZeledónReply to the argument of Nicaragua on the question of the validity or nullity of the Treaty of Limits of April 15, 1858, to be decided by the President of the United States of America, as arbitrator → online text (page 1 of 14)