Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873, Part I, General Correspondence; and Papers Relating to Naturalization and Expatriation, Volume II

No. 320.
Mr. Riotte to Mr. Fish.

[Extract.]

United States Legation,
Managua, June 20, 1872. (Received July 18.)

No. 113.]

Sir: Subsequent to ray last dispatch of the 27th ult. upon the state of relations between Nicaragua and Costa Rica on the boundary and canal-route questions, the Official Gazette published a long appeal of Mr. Herrera from his fellow-negotiators, General Zavala, to the minister for foreign relations, and Mr. Rivas’s-reply. Of the latter, in which the principal points made by Mr. Herrera are incidentally mentioned, I beg to submit inclosed copy and translation, for the reason that it seems to state the position of his government on those subjects more distinctly, more fully, and with more fairness than any other document that emanated from the same source. It is my deliberate opinion that when Mr. Herrera de facto declined continuing the negotiations upon that broad and conciliating basis, and took so abruptly his leave the very day, without waiting for his enlarged instructions, whereof he was for weeks prating, and which, in the regular course of the mail service, were to arrive but two days later, he did so because he was from the beginning instructed not to come to an agreement short of an absolute surrender of Nicaragua to all and every Costa Rican demand, and feared, from the yielding disposition shown by this government, to have to spoil the game marked out for him at San José.

Whatever may be thought of Mr. Rivas’s views on the regulation of the boundary, his fairness as to the canal cannot be gainsaid. In fact, I, for my part, do rejoice that Mr. Herrera, by his sudden withdrawal, frustrated the execution of those propositions. * * *

Costa Rica, on the other hand—so every day’s experience is more fully persuading me—seems determined not alone to continue the game which in your dispatch No. 72 you have so correctly pictured.

It is most unfortunate that Nicaragua herself, led on by that fatal man, Mr. Ayou, when minister for foreign relations, took the first false step, giving, to some extent, color to the course adopted by Costa Rica. I beg here to refer you particularly to my dispatch No. 67, of February 4, 1871. Mr. Ayou’s life ambition was bound up in the success of the Chevalier Ayou contract. That success was contingent upon the approval of the contract by Costa Rica. When, after the ascen dence of the dictatorial chair by Mr. Guardia, and the appointment of Mr. Montufar, the old enemy and inveterate rival of Mr. Ayou for the championship in diplomacy, the approval was refused, and an exchange of notes on the subject took place between those two men, it was the bitterest I ever read, and-ended with a menace of war by Mr. Ayou, and its acceptance by his antagonist. Mr. Ayou then found, in the narrow-mindedness and weakness of President Guzman, a willing instrument to wreak his revenge upon Mr. Montufar, by convincing him that to secure to Nicaragua in future her proper free action on the canal, there was no remedy left but to declare the boundary treaty of 1858 null. Mr. Ayou, in his report to Congress, submitted, with some caution, that view, and Congress, as is its habit, too lazy to trouble itself with its single points, approved the report in a lump. By all kind of means, that view has been worked into the heads of this people, always prone for a quarrel and sharp practice, and never troubled with conscientious doubts, to such a degree that I really believe there is not a single person on the entire extent of the republic entertaining the other side of the question. The only man I have found who has at least doubts on its correctness is President Quadra. His honesty and good sense tell him that Nicaragua must abide by the treaty, and not touch the old sore of Guanacaste, but he says: “I am neither a lawyer, nor a diplomatist, or politician, and all those who are tell me that the treaty and the possession of Guanacaste by Costa Rica are not valid in law.” I have frankly told him twice that I entertained a contrary view, and stated my reasons, as well in law as in equity, and laid before him all the facts, some of the most important of which were unknown to him.

* * * * * * *

Nicaragua I consider wrong on the boundary and the Guanacaste question; Costa Rica on her canal pretensions and her recent action in reference to the mouths of San Juan and Colorado Rivers, But these subjects are so intimately connected and intrinsically and artificially interwoven, that one cannot now be well solved without the other; and here it is Nicaragua, who, having made the first aggressive move, ought also be the first to retract it.

* * * * * * *

To enable you to argue the case with Mr. Bénard, if required, I will now state the reasons upon which this government and people deny the validity of the boundary treaty, of which, to that end, I inclose copy and translation.

They say:

1. When in 1858 the treaty was entered into, the constitution of 1838 was in force in Nicaragua. Article 2 thereof laid down the boundaries of the republic. A change in them, as involved by the treaty, consequently constitutes an amendment of the fundamental law, which, pursuant to article 194 of that instrument, can be effected only by two distinct approbations in two different congresses. The Canas-Jerez treaty was approved by but one—that of 1858—and is, therefore, not binding on Nicaragua now. It is not denied that, in addition to that ratification, the ratifications were exchanged with quite unusual solemnity (see the translation) by the Presidents of the two republics themselves, assisted by their respective ministers for foreign relations; that it, later, was published, as a part of the public law of the republic, in the official organ, and that it was, faithfully and without caviling, complied with by Nicaragua for a period of thirteen years. Nor can it be denied that if there was, quoad formam, a cloud hanging over it, Costa Rica had neither caused nor any means of removing it. Nicaragua, by her own negligence or bad faith, (I have reason for believing by both,) created that cloud, and nothing to clear it away, as she was in duty bound. It would be carrying owls to Athens would I undertake to show before you, Mr. Secretary, why she, and she alone, is foreclosed from availing herself of that cloud.

2. The commissioners for the survey of the dividing line, (articles of the treaty,) have not been appointed, nor has ever a survey taken place. Now it seems simply incredible that such flimsy argument can be brought forward seriously by hosts of lawyers and statesmen, and be repeated by the press in all times. The survey was simply a measure of partial execution, which, if not otherwise stipulated, might or might not be resorted to without exercising any influence upon the substance and existence of the treaty. For thirteen years none of the two governments urged the appointment of the commission. This is equivalent to a tacit mutual understanding that hitherto they did not consider it of sufficient weight to have it attended to; but it seems unquestionable that either one of the parties may still any day demand the survey.

3. Most stress is laid by Nicaragua upon the fact that, according to article 10 of the treaty, the Salvadorian envoy took the treaty under the guarantee of his government, and that it never ratified his act. But it is not true, in fact, that said envoy warranted the entire treaty. He merely acted as mediator to it. His guarantee was restricted to “lo estipulado en el articulo anterior,” namely article 9, containing the prohibition of hostilities in time of war, in the port and river San Juan and on Lake Nicaragua. Mr. Negrete expressly declared that he had authority from his, the Salvadorian, government to do so, and both the Nicaraguan, as well as the Costa Rican negotiators, who, according to the preamble, had taken cognizance of his powers and found them sufficient, were satisfied with Mr. Negrete’s declaration, so that none of these republics could complain even if Salvador had disowned Mr. Negrete’s action, which she never did, or not complied with it, for which there was no opportunity. It is not known, and has to be seen if a case occurs, whether Salvador will consider herself bound by that declaration to an intervention or not. But in law it seems doubtless that, as between the original contracting parties, provided the ratification of the guarantee clause is not made a conditio sine qua non of the very existence of a treaty or contract, that treaty or contract is binding upon them, whatever may be the fate of the guarantee.

4. Finally, it is contended that the treaty, while transferring to Costa Rica territory use of waters, and navigation privileges, did not specify a consideration. If this were so, the remark would hold good that, according to Nicaraguan law, it is not necessary (as in the common law) to express the consideration; it is sufficient that it exist and may be proved. But it is not so. The treaty, in article 11, distinctly and discernedly enough for any interpreter acting in good faith, acquainted with the circumstances under which it was concluded, states the consideration. Costa Rica for two years bad been straining every nerve to save Nicaragua (Nicaraguans retort: herself too) from the iron grasp of Walker, and had spent a large sum of money and sacrificed many lives in the attempt, for which, without presumption, she might have claimed indemnity. She had possession of a number of steamers taken from the filibusters; she held, right or wrong, the Nicaraguan forts on San Juan River. All this she gave up to Nicaragua by that article, under the designation of creditos activos (assets) and of reclamations for indemnity. It is true the stipulations of the article are mutual, but that they merely meant obligations on the part of Costa Rica, every Nicaraguan knows full well, though not one is upright enough to confess it. This disingenuousness of Nicaragua on this occasion is so transparent that any foreign power treating with her will do well to heed the precedent. The editor of the government organ, in an article published in the Forvenir, proclaimed it as a tenet of international law that treaty stipulations are to be observed only so long as they are advantageous or as the power is wanting to break them, and this outrageous sentiment was not only not rebuked, but seems to be accepted with general approval.

The old quarrel about the Costa Rican province of Guanacaste has also been trumped up again by Nicaragua on this occasion. It seems a well-established fact that, under Spanish rule, it formed a part of Nicaragua, though Mr. Montufar, in his late report to Congress, makes an ineffectual attempt to show that it belonged to Costa Rica. If that gentleman would peruse the old archives of Costa Rica at Cartago, he would find therein, as I did, the most incontrovertible evidence (whereof I still preserve extracts) of the error of his position. But, on the other hand, it is a matter of history that since 1824, without interruption, the province of Guanacaste formed an integral part of the republic of Costa Rica. Nothing has more embittered the feeling in Costa Rica than this eternal harping for the “lost brethren” by the Nicaraguans, keeping up in the minds of the inhabitants of that province an insecurity and uneasiness, the principal cause of its miserable condition. It is really too bad that this people, barely able to exercise its authority of one-third of its undisputed territory and incapable of making it felt over two-thirds thereof, should run riot after a distant, wretched province, separated from the bulk of the republic by high mountain ranges, inaccessible for six months in the year, and heedlessly provoke the enmity of a comparatively powerful neighbor. That hellish spirit of rapacious and inconsiderate conquest, into which the successors of Columbus degenerated, is still rife among these factions of the old greedy stem. In the same way as Nicaragua leers on Guanacaste, and would, if she had the power, take it to-morrow by war, without the remotest idea what to do with it after the conquest, so does Costa Rica covet all the territory down to the Golfo de Toros, even at risk of war with the United States of Colombia. What a very good fortune it is that these countries are so weak and assigned upon each other.

I am very sanguine that if, upon my Government’s friendly advice, Nicaragua, with good grace, will retract her steps as to the boundary treaty and the province of Guanacaste, Costa Rica will also not hesitate to take back hers as to the navigation of “Los Portillos” and the Colorado River, which, aside from being against the customs of all nations, as I endeavored to show in my dispatch No. 112, are plainly in contravention to both the words and spirit of the very boundary treaty which she affects to uphold. (See arts. 6, in beginning, 4, 5, 9 and 10.) And then will come the proper time for these two republics to settle their future polity, for which Mr. Rivas’s dispatch holds out so tempting a prize as the partial or total political union. I must say, however, that I have no faith in negotiations or conferences among themselves alone.

* * * * * * *

I have, &c.,

C. N. RIOTTE.

[Inclosure.—Translation.]

Mr. Rivas to Mr. Herrera

Managua, April 18, 1872.

No. 113.]

Mr. Vicente Herrera, &c., &c.

I had the honor of receiving your excellency’s dispatch of the 10th instant, wherein you explain the reason for which the Costa Rican government lays claim, as natural boundaries, to San Juan River and Lake Nicaragua, and for intervening directly in the enterprise of the interoceanic canal, concluding with the observation that in case this government “had said its last word on either point,” you saw yourself, though with deep regret, in the necessity, agreeable to your instructions, to consider your mission as ended, and request the appointment of a day and hour for your official leave taking.

Since your excellency states having come to this determination in consequence of a new memorandum, delivered to you by the Hon. Zavala, and of the reply he gave to your note of the 4th instant, both in this department, from the tenor of which two documents you conclude it to be necessary, for the time, to give up all hope of approaching the definite arrangement of the vexatious boundary question and not to enter into other and more transcendant negotiations, which might serve as cement for the future greatness of both countries, and lay the blame for their not having reached a favorable issue upon this government, I consider it my duty, ere replying to the concluding portions of your note, to submit to you some remarks, leaving certain ideas and considerations, to which my government has given no occasion, unnoticed.

Your excellency says that the boundary project submitted by Mr. Zavala, in his memorandum of 2d instant, made you see the situation plainly and comprehend, “with painful grief, the idea that Nicaragua did not harbor the best dispositions toward her friend and sister, the republic of Costa Rica, whom it seemed more the intention to repulse, like an enemy to be feared, than to attract as a friend whose affection it is desirable to preserve,” and that, under that impression, you directed Mr. Zavala the said communication of the 2d instant, wherein you asked explanation on three points which you considered primordial for the settlement of your course as soon as the fundamental ideas of this government were known.

Mr. Zavala replied categorically to all the points contained in your said dispatch, frankly making manifest the brotherly feelings entertained by the government and people of Nicaragua toward her friend and sister, the republic of Costa Rica. He cited also the explicitness of the president of this republic in the interview at Rivas to the president of Costa Rica on this government’s and the entire nation’s opinion of the non-subsistence of the Jerez-Cañas treaty of April 15, 1858, and of the necessity of proceeding, at the earliest day, to a revision of the dividing line, as a step to be taken previous to whatever other negotiation; and since the project submitted in those conferences by the Nicaraguan commission had been admitted in principle, which, in substance, is the same as that of Mr. Zavala, and the object whereof is to remove the obstacles created by said treaty to the development of the Nicaraguan commerce and navigation, without in any way injuring the real interests of Costa Rica, Mr. Zavala was right when he was surprised to find that you, in the statement of those wishes, so often repeated, did see an expression of the bad disposition of the government and people of this republic toward its friend and sister of Costa Rica.

Ever since the boundary question between these two republics began to be agitated Nicaragua was always disposed to give up to Costa Rica all what could not be made to serve as impediment in the free exercise of her sovereignty over the waters of San Juan River, principally for the execution of the inter-oceanic canal, which was the brightest hope comforting her in the entire course of her existence. Then Costa Rica made demands which, compared with those of to-day, may be called modest, for, though it be true that on several occasions she solicited to become possessed of the right bank of San Juan River and of Lake Nicaragua, she never raised the pretense to challenge to this republic the unquestionable right of the exclusive domain of the interoceanic canal, and proposed rather that, at all events along the whole extent of the littoral of both river and lake, a strip of land from two to three leagues wide should remain to the disposal of the Nicaraguan government, to the end that the negotiations she might undertake for opening the canal might not be paralyzed, and, moreover, offered a pecuniary indemnity for the lands that might be transferred to her till to the lake shore. (Proposition of Dn. Felipe Molina, of 1848.)

At this moment the question is presented under very different aspects. Your excellency desires it to be understood that the intervention in the affairs of the interoceanic canal attempted by Costa Rica “does not alone cover a friendly offer, but that it also constitutes a right, growing especially out of her conterminous position,” and asserts “that none of the reasons adduced by Mr. Zavala are sufficient to extenuate for the negative, considering the friendly spirit of the offer, as to impugn the right Costa Rica possesses of intervening in a work the character whereof is eminently national.”

This entirely new pretense lays open the serious inconveniences encountered by Nicaragua from the announcement of a direct intervention and joint action in the canal enterprise, and it alone would be enough to justify the apprehensions your excellency attributes to Mr. Zavala, to the government, and to the people of this republic, because the spontaneous and fraternal offers of Costa Rica toward the shortest and securest result of the negotiations upon this important work are not accepted immediately. For some time Nicaragua is endeavoring to remove the impediments thrown in her way by the boundary treaty, and the government would not be justifiable at all if, instead of doing away with those inconveniences, it contracted compromises which would raise up more insurmountable ones. If your excellency, with merely beginning colloquies upon the subject, means to leave understood a basis for future questions with Nicaragua, how many will their not be raised after celebrating a convention whose clauses may be subject to a thousand interpretations.

I repeat to your excellency what the president, in conversation, has told you several times, namely, that the government, convinced that the boundary treaty is an obstacle to the aggrandizement of Nicaragua, she will sincerely procure to modify it in terms more favorable to the republic, and that if not able to obtain that, he would prefer to continue the status quo, else he would have to respond to the nation, which feels injured by that treaty, when he would be called upon to account for what he had contracted, still more onerous compromises for the country.

At this moment I do not deem it advisable to explain the arguments of the government for considering the boundary treaty imperfect or to impugn those advanced by your excellency to prove its subsistence, for, as Mr. Zavala said, very correctly, the government is not the competent authority to decide on its validity or nullity, nor does it intend to impede its execution until the sovereign of Nicaragua (Congress) has given its decision. And, moreover, notwithstanding the serious difficulties encountered in the way of a definite and satisfactory settlement of this grave question, the hope must not be lost that one day patriotism, disinterestedness, and a spirit of strict justice will find the road leading to a lucky unraveling, which will mark an era of prosperity for both countries.

From this explanation your excellency will see that this government’s policy as to the boundary treaty of 1858 has nothing undecided, but is, on the contrary, clear and very firm. If, on one hand, as has been said so many times, the treaty is considered null, not alone for the reasons stated but for being extremely onerous to the interests of the country and humbling to its dignity, it is, on the other hand, certain that it has respected it, and will continue to respect it as long as it be not reformed by a fraternal understanding, or, as I have just said, be declared invalid by a legal enactment.

My government understands that if the boundary question could be discussed independent of that of the interoceanic canal, it would not be difficult to reach a satisfactory solution. Nicaragua has never pretended to curtail Costa Rica of any part of her territory, or to deprive her of any advantage ours might offer her. All our country has claimed is, not to be impeded in its own growth by the pretensions of its neighbor, and so true is it that the claims of Nicaragua have been limited to that, that pending the negotiations of Mr. Molina in 1848 the offer was made to Costa Rica to have for all times the superficiary possession of the lands contiguous to the right bank of San Juan River she might need to open roads for the exportation of her products.

The question of partnership of action and interest in the interoceanic canal is of a more grave character and difficult to solve.

Since these two republics consider themselves as two distinct political entities, as two sovereign and independent nations, the joint participation of the one in the great affairs of the other would be nothing else than an impracticable idea, an inexhaustible source of questions and disagreements, productive of serious conflicts, because it would be difficult to avoid that the action of the one should not interfere with the interests of the other.

Yet, what difficulty is in the way of identifying the interests of both peoples, instead of uniting their action in one enterprise?

The undersigned and his government are of opinion that the only means possible for obtaining the result which his excellency Mr. Guardia had in view in proposing to Nicaragua a joint action of both republics in the execution of the canal, is: the union of the two republics into one people. Only thus the resources of the one and the other country could be made to combine in that vast enterprise without running the risk of raising rivalries likely to undo the most vigorous efforts in its behalf. And not only would by this means a satisfactory end upon the most favorable terms for both countries be attained, but the step would at once solve the pending questions, for which there would not be any further cause, and would forever cut off every germ of misunderstanding between two nations who, by all its circumstances, are called upon to form one.

Don Gregorio Juarez, in 1848, negotiator on the part of Nicaragua, with Mr. Molino, envoy of Costa Rica, for settling the question of Guanacaste and fixing the boundaries of the two republics, said in a note to his government, when asking for enlarging his instructions: “If Costa Rica, together with Nicaragua, became one sole nation, and erected upon the territory in dispute the throne of their sovereignty, then the world would see springing from such small incidents wonderful events, whereof history furnishes many examples; but since, unfortunately, such occurrence is so far remote from us,” &c.

At that epoch it seemed almost impossible to reach a result, the beneficial consequences whereof could not be denied, but to which a thousand prejudices of various classes were opposed. But to-day, in presence of the probable realization of the interoceanic canal, which will bring about a salutary transformation in the sections of Central America, and, may be, in the other sister republics of the continent, and whose immense advantages Nicaragua and Costa Rica will most immediately earn; to-day, when both nations have passed the difficult experiment, united to sustain their independence, and have reason to hope for more intimate relations by means of telegraphs and railroads, should not the moment have come to consider seriously and maturely the ways by which to realize the intentions of nature, that these two peoples should constitute one? Why not remove the weak barriers between them that separate members of the same family? My government deems the realization of this idea of unity not difficult, which would present in relief the high sentiments of fraternity whereof, as your excellency says, your government is inspired, and mine abounds, and which, perhaps, will serve as a salutary example to the other sister republics.

Since your excellency, after the dispatch to which I am replying, has submitted to me a new memorandum for the settlement of the boundary question, which contains stipulations unacceptable for Nicaragua, the government has considered the subject more maturely, and in the hope that the present negotiations would lead to an arrangement satisfactory to both parties, has authorized me to transmit to you the inclosed project of a treaty, which I submit to your consideration. Your excellency will perceive from it that all concessions possible within the competency of the government, are made to Costa Rica, and, may be, some even transcending it, in exchange whereof the obstacles thrown in the road of the aggrandizement of Nicaragua by the treaty of 1858 are removed.

But should your excellency, notwithstanding this new intimation, still insist upon withdrawing, without waiting for your enlarged instructions, which the undersigned and his government would much regret, as they had expected from this mission an entire termination of the pending questions, then the undersigned is authorized to designate to your excellency to-day, four o’clock p.m., for taking your official leave.

Again assuring your excellency, &c., &c.,

A. H. RIVAS.

Extracts from a treaty project submitted by the Nicaraguan minister of foreign affairs to the Costa Rican plenipotentiary, in twenty articles.

• Art. 2. The line between the two republics shall commence from a point three geographical miles south from the right bank of the mouth of the Colorado River, and shall follow parallel the course of that river to its bifurcation, also three miles distant; thence parallel to and at the same distance along the right bank of San Juan River, following all its windings till to a point three miles distant from its origin in the lake; thence parallel and at the same distance along the south lake shore to the intersection with Lapoa River; thence a straight astronomical line shall be drawn to the central point of Salinas Bay in the Pacific.
• Art. 4. Costa Rica is to have the right of free navigation on the lake and on rivers San Juan and Colorado in the same manner and subject to the same laws as Nicaraguans; the eminent domain and summum imperium on lake and rivers remain with Nicaragua. In the same way shall Costa Rica have the free use of the bay and port of San Juan del Norte. On the other hand shall the Nicaraguans have the same right Off free navigation on rivers Sarapiqui, San Carlos, and Frio, to Costa Rica competing the eminent domain.
• Art. 5. Costa Rica to have the right of opening upon Nicaraguan territory the necessary roads for importation and exportation from respectively, to the lake, Colorado and San Juan Rivers, and San Juan Port, and to be for all times superficiary owner of those roads.
• Art. 6. The bay of Salinas to be common; both republics to defend it and the bay of San Juan del Norte.
• Art. 7. In case of war between the two republics, no act of hostility to be committed upon the waters declared common and their banks.
• Art. 8. In case of the excavation of a canal, its right bank to be the boundary from the Caribbean Sea to the lake; thence the south shore of the lake to the Lapoa River; thence the right (this is a plain mistake, it means the left or south,) bank of said canal to its mouth; provided that it does not deviate more than six geographical miles from the line drawn in article 2. Nicaragua reserves over the canal its sovereign rights.
• Art. 11. Costa Rica to have a consulting vote on any contract entered into by Nicaragua on the interoceanic canal.
• Art. 12. Nicaragua binds herself to stipulate in behalf of Costa Ricans the same advantages in the use and navigation of the canal and in the tariff of goods and passengers (sic) as for Nicaragua.
• Art. 16. A telegraph to be established between the two republics.
• Art. 17. Minting of coins, weights, and measures according to decimal system.
• Art. 18. Extradition of criminals, &c. &c.

[Inclosure 2.—Translation.]

Boundary treaty between Nicaragua and, Costa Rica.

Preamble and article 1 unimportant.

Art. 2. The dividing line between the two republics, beginning at the Mar del Norte, (Caribbean,) shall start at the extremity of Punta de Castillo, at the mouth of San Juan River, and shall run along its right bank to a point three English miles distant from Castillo Viejo, measured from the outside fortifications of said Castillo; thence in a curve of three miles distance, whereof the fortifications form the center, to a point above Castillo two miles distant; thence in the direction to Lapoa River, that flows into Lake Nicaragua, following a course always two miles distant from the right bank of San Juan River, with its windings, to its origin from the lake, and from the lake shore to said Lapoa River, striking it parallel with said shore; from that point, also distant two miles from the lake, a straight astronomical line shall be drawn to the central point of Salinas Bay on the Pacific, where the demarkation of the dividing line between the territories of the two republics shall end.

Art. 3. The corresponding survey of this dividing line shall be taken for a whole or a portion thereof, by commissioners of the two governments, these agreeing upon a time when it shall be done. Said commissioners may, if by common understanding they may be able to find natural landmarks, deviate some in the curve around Castillo, as well as in the parallel line along the river bank and the lake shore, or in the straight astronomical line from Lapoa to Salinas.

Art. 4. San Juan del Norte and Salinas Bays shall be common to both republics, and, consequently, so their advantages and the obligation to contribute to their defense; and Costa Rica shall be bound for the portion corresponding to her on the bank of San Juan River, in the same manner as Nicaragua, by treaty, to join in watching it in the proper manner, on which both republics will agree, for its defense in case of aggression from outside, and they will do it with all the power at their command.

Art. 5. As long as Nicaragua be unable to recover full possession of all her rights in the port of San Juan del Norte, the Punta de Castillo shall be of absolute common and equal use and possession, both for Costa Rica and Nicaragua, fixing, during the time this community lasts, as limit thereof, the whole course of Colorado River. And it is, moreover, stipulated that as long as the said port of San Juan del Norte has to exist as a “free” port, Costa Rica can recover from Nicaragua no port duties in Punta Castillo.

Art. 6. The republic of Nicaragua shall have the exclusive domain and summum imperium over the waters of San Juan River from its outlet from the lake to its mouth into the Atlantic; but the republic of Costa Rica shall enjoy in said waters the perpetual right of free navigation from said mouth up to three English miles from Castillo Viejo, for the object of commerce, be it with Nicaragua or with the interior of Costa Rica by the river San Carlos or Sarapiqui, or by any other ways coming from the portion of the banks of the San Juan which will be determined to belong to that republic. The vessels of either country may indistinctly make fast upon the river banks wherever navigation is common withoutt being subject to any class of taxes, provided such are not established by an agreement of the two governments.

Art. 7. Has only a transitory interest.

Art. 8. Should, ere the Nicaraguan government had received cognizance of this convention, the contracts entered into for canalization, or for transit, have, for any reason whatever, become null, then Nicaragua binds herself not to enter into another upon those subjects without previously learning the opinion of the Costa Rican government on the inconveniences it may have for either country, provided that this opinion be communicated within thirty days after the receipt of the inquiry, in case Nicaragua, represents the case as urgent; and if, by the contract, the natural rights of Costa Rica are not harmed, then her opinion shall be merely consultive.

Art. 9. For no motive whatever, nor in case of war, in which, unfortunately, the republics of Costa Rica and Nicaragua may be drawn against each other, shall they be permitted to commit acts of hostility in the port of San Juan del Norte, or in the river of that name, or on Lake Nicaragua.

Art. 10. The stipulations of the foregoing article being essentially important to a due security of the port and river against foreign aggressions, affecting the general interests of the country, the strict fulfillment thereof is placed under the special guarantee, which, in the name of the mediating government, (San Salvador,) its minister plenipotentiary present is disposed to grant, and actually does grant, by virtue of the full powers he declares to be conferred upon him by his government.

Art. 11. In witness of the good and cordial understanding now established between the republics of Costa Rica and Nicaragua, they renounce upon all the assets they may possess against each other up to the signing of the present treaty, under whatever title they may be held, and, in like manner, do the two high contracting parties abstract from all reclamations for indemnity to which they may deem themselves entitled against each other.

Art. 12. This treaty shall be ratified, and its ratifications exchanged, within forty days of its being signed at Santiago de Managua.

In witness whereof we sign the present in three copies, together with the honorable minister of San Salvador, at San José capital of Costa Rica, the 15th April, 1858.

• JOSÉ M. CAÑAS,
• MAXIMO JEREZ,
• PEDRO ROMULO NEGRETE.

Approved, San José, the 16th April, 1868, by

• JUAN RAFAEL MORA,
  President of Costa Rica.
• NAZARIO TOLEDO,
  Secretary of State.

Protocols of exchange.

[April 26, 1858]

Thomas Martinez, President of the republic of Nicaragua, and Juan Rafael Mora, President of that of Costa Rica, fully and completely authorized by the respective Congresses of Nicaragua and Costa Rica to proceed to the exchange of the ratifications of the territorial boundary treaty, signed by the plenipotentiaries of either republic, and by that of Salvador, as mediating power, on the 15th of April of this year, at San José, capital of Costa Rica, &c., being met at the town of Rivas, in Nicaragua, for the above-said purpose, we have executed the exchange of the respective official documents of ratification of said treaty of 15th of April, undersigning as we do in three copies, countersigned by the ministers for foreign relations of Nicaragua and of Costa Rica, April 26, 1858.

• TOMAS MARTINEZ.
• GREGORIO JUAREZ, Minister.
• JUAN RAFAEL MORA.
• NAZARIO TOLEDO, Minister.