Mr. Foster to Mr. Lincoln.
Washington , February 8, 1893 .
Sir: In May, 1892, in consequence of representations made by the Southern Pacific Company that its steamers plying between New Orleans and Bluefields, Nicaragua, had recently been subjected to an increase of port charges, the Government of the United States addressed that of Nicaragua inquiring the facts of the case and the grounds of the increase in question. The Nicaraguan minister for foreign affairs, Don Jorge Bravo, replied, under date of July 19, 1892, expressing [Page 314] inability to make responsible reply and pointing out the anomalous state of things in the Mosquito Reservation owing to the claim of Her Majesty’s Government to intervene, with more or less of indirection, as the protector or advocate of alleged rights of the Mosquito Indians, and the consequent impediments to the exercise, by Nicaragua, of responsible acts of sovereignty in that quarter. For these reasons Señor Bravo announced the necessity of taking “measures near the court of St. James to the end that there may be given a practical meaning to the sovereignty which, according to the treaty of Managua, this Republic (Nicaragua) has in the Mosquito territory.”
Señor Bravo did, in fact, address a note* to Her Majesty’s minister at Managua, under date of the 13th of September, 1892, of which a translation is annexed for your information. Mr. Audley Gosling replied, under date of October 14, 1892, announcing his reference to Señor Bravo’s note to Lord Rosebery, and making, in the mean while and before his lordship’s opinion in the matter could reach him, sundry observations upon the points suggested by the Nicaraguan minister’s note. A copy of this note† of Mr. Gosling is also appended hereto.
I am somewhat at a loss to determine what weight, if any, should be attached to Mr. Gosling’s utterances, being, as they confessedly are, voluntary. But Mr. Gosling’s views are in so many particulars erroneous as to demand passing consideration.
It is unnecessary at this juncture to review the discussion in regard to the Mosquito Indians, which has for nearly half a century continued between the United States and British Governments. It will suffice to recall the elaborate presentation of the subject made by my predecessor, Mr. Bayard, in his instruction to Mr. Phelps, No. 999, of November 23, 1888, a presentation which remains practically unanswered, since the acknowledgment thereof made by the Marquis of Salisbury in his instruction to Mr. Edwardes, of March 7, 1889, amounts to little more than exception to certain details of statement. It does indeed contain a declaration that Her Majesty’s Government “have no desire to ‘assert a protectorate’ in substance or in form, or anything in the nature of a protectorate,” a declaration which would be valuable, and perhaps conclusive, were it not obviously neutralized by the equally positive prior assertion of Great Britain’s claim to remonstrate with Nicaragua in case of complaint by the Mosquito Indians that their rights are infringed by Nicaragua.
The line of Mr. Bayard’s argument culminates in showing that the arguments and pretensions of Great Britain lead to the assertion of the existence of imperium in imperio in Central America. And yet this untenable doctrine of imperium in imperio is put forward by Mr. Gosling as the ground and justification of his argument. His proposition is vitiated by the attachment of a double meaning to one and the same word. He confounds the right of tribal self-government by the Mosquito Indians—that is, as defined by Article in of the treaty of Managua, “the right of governing according to their own customs and according to any regulations which may from time to time be adopted by them not inconsistent with the sovereign rights of the Republic of Nicaragua, themselves and all persons residing within such district”—with the functional attributes of government pertaining to an autonomous and internationally responsible commonwealth, and substitutes the one for the other at will.[Page 315]
The tribal regimen of the Indians resident in the Mosquito Reservation, which is expressly exercisable only so far as it may not be inconsistent with the sovereign rights of Nicaragua, is in no wise such a government as a foreign sovereign state can look to or deal with in defense of its rights or in protection of its interests. Still less can it create such a state of facts as would authorize or render admissible the dependence of the rights and interests of a foreign sovereign state in respect of the region occupied by the Mosquito Indians, upon the intervention of Great Britain with the Government of the sovereign and independent Republic of Nicaragua.
The statement that the Mosquito Reservation is actually imperium in imperio is merely an empty phrase, void of meaning because resting on a logical fallacy, incompatible with the express stipulations of the treaty of Managua, and impossible of existence both as respects the sovereignty of Nicaragua and the sovereign rights of other states in their relations to Nicaragua.
Indeed, throughout the whole discussion for many years past it seems to have been overlooked on the part of Great Britain that the concessions granted by Nicaragua are tribal, not territorial; and that the specified rights conferred are to be enjoyed by a particular community of indigenous Indians, thus inuring to them and not to the territory assigned for their residence. The residence of other persons than Mosquito Indians within the defined limits of the reservation imposes subjection to this tribal rule it does not secure their exemption from Nicaraguan control. And a supposititious “Mosquitia” is not to be arbitrarily substituted for the territory allotted to and reserved for the residence of the Mosquito Indians by the sovereign, with qualified liberty to live and regulate their domestic affairs therein according to the patriarchial customs usual among the aborigines.
It is as impossible as it is inadmissible that a condition of things should exist in the Mosquito Reservation whereby the Indian denizens thereof shall assume to exercise, irresponsibly, a function of national government affecting the rights and interests of another sovereign power. It would be equally impossible and inadmissible were such governmental functions alleged to be responsibly exercised; for no sovereign power could hold intercourse with the Mosquito Indians as a responsible political entity, and no claim of responsibility could be put forth by those Indians, under cover of the limited grant to them, without palpable invasion of the guaranteed sovereignty of Nicaragua.
Following this erroneous line of argument, Mr. Gosling asserts that “the right of self-government” conceded to the Mosquito Indians by the Article iii of the Treaty of Managua would surely “cover the framing by them of port regulations whereby to insure the due maintenance and safety of the harbor at Bluefields, the providing of lights and beacons, and the defraying of expenses of the police of that port,” and adds: “According to my view, the question to be considered is, whether the levying of port dues referred to is inconsistent with the sovereign rights of Nicaragua; whether or not the collection of the said dues is not absolutely necessary for the safety of navigation, and whether the supreme government has, in virtue of the treaty of Managua, the right to repudiate them.”
To this concluding proposition, as well as to the prefatory assertion above quoted, I am constrained to take exception. I do not admit that the claimed administrative functions flow from the conceded privileges of tribal regimen, or that there can be question as to Nicaragua’s right, as a supreme government, to repudiate them. The port of Bluefields, [Page 316] like any other port within the defined limits of the reservation assigned for the dwelling of the Mosquito Indians, is for all purposes of international commerce a port of the sovereign state of Nicaragua. The flag of Nicaragua floats there as the recognized symbol of supreme sovereignty. The foreign flag entering those ports can recognize no divided sovereignty, nor know any such governmental fiction as “Mosquitia.”
Should foreign rights be involved or foreign interests assailed in those ports, the foreign sovereign can look alone to the Republic of Nicaragua for redress. If there be question “whether or not the collection of port dues is not absolutely necessary for the safety of navigation,” I hold that it is the prerogative of Nicaragua to determine the point, and in the proper case to adjust and impose such dues.
It is not to be overlooked that the treaty of Managua, although in the form of an agreement between Nicaragua and Great Britain by which the latter relinquished her claim to exercise a protectorate over the Mosquito Indians in consideration of express grants of privileges to those Indians by the territorial and political sovereign, is in fact a grant to the Mosquito Indians themselves; and that, thus conceded and stipulated, the grant can not be construed to convey more than by reasonable construction may be assumed to have been within the intent of the grantor, and can in no wise be interpreted inconsistently with the express reservation of the grantor’s inherent and indefeasible rights of sovereignty.
I am not unmindful of the circumstance, which may perhaps be alleged, that Article vi of the arbitral decision of the Emperor of Austria provided that “the Republic of Nicaragua is not entitled to regulate the trade of the Mosquito Indians, or to levy duties on goods imported into or exported from the territory reserved to the Mosquito Indians. That right belongs to the Mosquito Indians.” As was declared by Mr. Bayard, in his dispatch of November 23, 1888, the Government of the United States was not a party to that agreement of arbitration, and is not bound by the award of the arbitrator. But, even admitting for the argument’s sake that the award of the Emperor of Austria recognizes the competence of the tribal Indian community to levy import or export duties on goods, I submit that the scope of that power is expressly defined and limited to the Mosquito Indians alone, subject always to the ultimate sovereignty of Nicaragua, and that its exercise may not be expanded to usurp other usual and normal functions of sovereign government, such as those now in question, neither inure to others than those upon whom it is specially conferred.
If it be necessary to further pursue this aspect of the question, it will suffice to observe that the apparent intendment of this dictum of the imperial arbitrator was to permit of the collection by the Mosquito Indians of a revenue to meet the needs of their permitted tribal administration, and does not cover the case of the exaction, by aliens residing within the limits of the reservation, of local port charges for purposes of local improvement which are normally within the sole control of the territorial sovereign.
For some fifty years past this matter of Great Britain’s pretension to exercise a more or less direct intervention in the regulation of the internal functions of the Republic of Nicaragua has from time to time excited discussion. Settled, as was then supposed, by Great Britain’s engagement, in the Clayton-Bulwer treaty, to abstain from assuming to make use of any then existing protection or alliance to the end of exercising dominion over or colonizing the Mosquito coast, it revived, under [Page 317] the protectoral pretensions of Great Britain, to be again ostensibly settled by the treaty of Managua of 1880, whereby Her Majesty’s Government covenanted that its claimed protection over the Mosquito Indians should cease three months after the exchange of the ratifications thereof. Notwithstanding this seemingly final withdrawal of the British claims to intervention in the affairs of Nicaragua, the extent to which they were subsequently revived and asserted is apparent from the necessity of recourse to arbitration in 1879–’81. The question of the right and scope of Great Britain’s claimed function of intervention in disputes between the Republic of Nicaragua and the Indians or other inhabitants of the Mosquito Reservation was brought before the arbitrator, and his formal award is silent upon this point. Resting, however, on a passage of the opinion or report upon which the award was based, and which purports to recognize the competency of Great Britain to insist upon the fulfillment of the stipulations of the treaty of Managua, Her Majesty’s Government has since stretched its claim so far as to intervene to contest the exercise of so evidently sovereign a function as the regulation of postal communication in the Indian reservation—as though it were possible to suppose that the phantasmic fiction styled “Mosquitia” were competent to enter into postal conventions with sovereign powers and logically (or illogically, rather), with the territorial sovereignty of Nicaragua itself.
The vagueness of even the traditional fiction of the exercise of a tribal regimen by the Indian “government” of the Mosquito reservation is illustrated by the pointed fact that the town of Bluefields is to all intents and purposes a colony of aliens, for the most part Jamaicans, in whose municipal administration of affairs no concurrence of the tribal chiefs of the reservation is apparent. Thus the right conceded to the Mosquito Indians by the treaty of Managua of governing, according to their own customs, themselves and all persons residing within the district reserved to them has been perverted into the erection of an alien settlement at Bluefields, self-administered, internationally irresponsible, as wholly withdrawn in fact from the indigenous tribal regimen of the Mosquito Indians as it seeks to withdraw itself from the sovereign control of Nicaragua, and prone to invoke British intervention in protection of its alien interests. It is scarcely necessary here to discuss how far this foreign and local self-control comports with the arbitral decision of the Emperor of Austria, which in each and every one of its six essential articles defines in terms the relations of the “Mosquito Indians,” and none others.
The United States can not look with favor upon any attempt, however indirect, on the part of Great Britain, to render illusory the sovereignty of the Republic of Nicaragua over the Mosquito Indians and the territory reserved for their dwelling. In the judgment of this Government the provisions of the treaty of Managua, as construed by the arbitral award of the Emperor of Austria, are explicit to obviate any misapprehension or doubt as to the respective rights of Nicaragua and the Mosquito Indians, or as to the right of the Mosquito Indians themselves to impose their tribal customs and regimen upon any other residents within the reservation, so far as may not be incompatible with the sovereignty of Nicaragua. Moreover, the attributes and powers of sovereignty are so unquestionably established under the law of nations as to leave no just ground for doubting or contesting the ultimate rights of Nicaragua as territorial sovereign. Hence, the Government of the United States must hold that to Nicaragua, and to Nicaragua alone, it [Page 318] must look for settlement of any international questions affecting any part of the territory of Nicaragua.
You will communicate this dispatch to the Earl of Rosebery by reading it to him, and should he so desire, furnishing him with a copy.
I am, etc.,