PRi;sKNTi-;i) i;y 01 1 A 10 ilc AW Gosta Rica -Panama Arbitration OPINION Concerning the Question of Boundaries BetweeB Tbe Republics of Costa Riga and Panama Examined with Respect to the Spanish Law and Given at the Request of the Government of Costa Rica by their Excellencies, DON SEGISMUNDO MORET T PRENDERGAST Ex-President of the Cabinet Council, Ex- President of the Congress of Deputies, Deputy to the Cortes, Ex-President of the Central University, Member of the Permanent Court of Arbitra- tion of the Hague, and DON VICENTE SASTAMARIA DE PA REDES Professor of Public Law in the Central University, Ex-Minister of Public Instruc- tion, Senator of the Kingdom, President of the Council of Public Instruction, Member of the Royal Academies of Moral and Political Sciences and of History President of the Technical Commission in the Arbitration Between the Republics V# of Honduras and Nicaragua, Decided by ' H. M. the King of Spain. PRINTEBS: • THB COMMONWEALTH COMPANY, ROaSLYN, VA., V. S. A. 1913 The docmnents to which parenthetical reference is made herein are to be found in *' Documents Annexed to the Argument of Costa Eica Before the Arbitrator, Hon. Edward Douglass White," etc., in four volumes. INTRODUCTION. I. The Arbitration of the Boundary Question Pend- ing Between the Republics of Costa Rica and Panama. On the 15th of March, 1825, the Eepublic of Colom- bia (whose rights are now claimed by that of Pana- ma) and the federated Eepublic of Central America (of which that of Costa Eica formed a part) entered into a treaty by which, in article 5, the parties mu- tually guaranteed the integrity of their respective ter- ritories *'as they existed prior to the present war of independence," and, in article 7, they obligated them- selves ' ' to respect the boundaries of each other as they now exist," reserving to themselves the duty to make amicably and by means of a special agreement, the demarcation of a divisionary line as soon as circum- stances might permit (Doc. No. 257). On the dissolution of that federation, the Eepublic of Costa Eica and that of Colombia undertook at vari- ous times to establish that divisionary line, preparing agreements which were never ratified and passing through serious conflicts in consequence of their dif- ferent conceptions as to the extent of their territorial sovereignty. With the laudable purpose of putting an end amica- bly to their differences, they entered into an agree- ment on December 25, 1880, submitting to arbitration "the question of limits existing between them and the designation of a line that shall separate for all time and with entire clearness the territory of the one from the other." By virtue of this agreement, the arbitra- tion was entrusted to His Majesty, the King of Spain, at that time Don Alfonso XII (Doc. No. 364). On the death of that Monarch, Costa Hica anc| Colombia, on January 20, 1886, entered into another convention, ''additional" to that of 1880, in Article 1 of which the Government of Spain is declared to be "competent to proceed with the execution of the arbi- tration and to deliver a definitive sentence of an irre- vocable and unappealable character" (Doc. No. 369). In Article 2 of this additional convention the extent of the disputed territory was determined, and the claims of the parties litigant were set forth as follows : ''The territorial limit which the Republic of Costa Rica claims, on the Atlantic side, reaches as far as the Island of the Escudo de Veragua and the River Chiriqui (Calcbebora) inclusive, and, on the Pacific side, as far as the River Chiriqui Viejo, inclusive, to the east of Punta Burica. ' ' The territorial limit which the United States of Colombia claims reaches, on the Atlantic side, as far as Cape Gracias a Dios, inclusive, and, on the Pacific side, as far as the mouth of the Golfito River in the Gulf of Dulce." In Article 3, it is stated that the arbitral decision should be confined to the territory in dispute situated within these extreme limits, and should not affect in any way the rights of a third party who may not have intervened in the arbitration. New dissentions between Costa Rica and Colombia and their persistent desire for a friendly settlement, led to a third convention, signed November 4, 1896, by which the arbitration was offered in the first place to the President of the Republic of France, but it was given to be understood that the failure to designate the Gov- ernment of Spain as arbitrator was due solely to Colombia's reluctance to exact from that Government so much continuous service, she having only shortly before then subscribed with Ecuador and Peru a boundary treaty in which His Catholic Majesty was named as arbitrator, and this after his laborious trial of the question of the Colombian -Venezuelan frontier (Doc. No. 403). In this third convention the two prior ones of 1880 and 1886 were ratified and held to be in force, except Articles 2 to 6 of the former, and 1 and 4 of the latter. So that there remained in force : Article 1 of the Con- vention of 1880, stating the question of limits, and Articles 2 and 3 relating to the boundaries claimed by each of the parties, and the condition that the arbi- trator be confined to the territory in dispute. The arbitral proceedings having been submitted to the President of the Republic of France, His Excel- lency Monsieur Loubet, who was then in charge of that very high ofl&ce, handed down his decision on September 11th, 1900 (Doc. Nos. 413 and 414), estab- lishing as a divisionary line that which he traced from Punta Mona on the Atlantic Ocean to Punta Burica on the Pacific Ocean. The award of Monsieur Loubet sets forth none of the reasoning on which it is based; only the bare decision is given, prefaced by a list of memoranda, documents and maps presented by each party, and an enumeration of the Eoyal acts cited by both. The Government of Costa Rica made respectful ob- servations to that of France, in regard to the difficul ties of carrying out the Award; and the Minister of Foreign Affairs, Monsieur Delcasse, in his note of 8 November 23, 1900 (Doc. Nos. 421 and 422), addressed to the Minister of Costa Rica in Paris, answered saying : "For lack of precise geographical data, the Arbitrator has not been able to fix the frontier except by means of general indications ; I deem, therefore, that it would be inconvenient to trace them upon a map. But there is no doubt, as you have observed, that in conformity with the terms of Articles 2 and 3 of the Convention of Paris of January 20, 1886, this frontier line must be traced within the limits of the territory in dispute, as they are found to be from the text of said Articles. It is according to these prin- ciples that the Republics of Colombia and Costa Rica will have to proceed in the material de termination of their frontiers ; and the Arbitra- tor relies, in this particular, upon the spirit of conciliation and good understanding which has up to this time inspired the two interested Governments. ' ' The Government of Costa Rica understood that the decision did not meet all the conditions stipulated in the arbitration agreement, since it did not establish the divisionary line for all time and with entire clear- ness; it even went outside the limits of the disputed territory, and left open the field of controversy. In its desire to settle the question of boundaries definit'-vely and as soon as possible, that government sought and in December, 1907, obtained (Doc. Nos. 440 and 442) the friendly mediation of the United States ; there was excellent reason for this choice inasmuch as the latter had been constituted by the Treaty of November 3, 1903, guarantor of the independence of the new Repub- lic of Panama. The result of these negotiations was the Convention of March 17, 1910 (Doc. No. 473^, between the Repub- lics of Costa Rica and Panama, submitting the defini tive settlement of the matter to the Chief Justice of the United States, in the following form : ''The Republic of Costa Rica and the Repub- lic of Panama, although they consider that the boundary between their respective territories designated by the arbitral sentence of His Ex- cellency, the President of the Republic of France, of the 11th of September, 1900, is clear and indisputable in the region of the Pacific, from Punta Burica to a point beyond Cerro Pando in the Central Cordillera near the ninth degree of North Latitude, have not been able to reach an agreement in respect to the inter pretation to be given to the Arbitral Award as to the rest of the boundary line; and for the purpose of settling their said disagreements agree to submit to the decision of the Honorable Chief Justice of the United States, who will determine in the capacity of Arbitrator : What is the boundary under and most in accordance with the correct interpretation and true inten- tion of the Award of the President of the Re- public of France made the 11th of September, 1900." The convention immediately adds : *'In order to decide this, the Arbitrator will take into account all the facts, circumstances and consid^erations which may have a bearing upon the case, as well as the limitation of the Loubet Award, expressed in the letter of His Excellency, M. Delcasse, Minister of Foreign Affairs of France, to His Excellency, Senor Peralta, Minister of Costa Rica in Paris, of 10 November 23, 1900, that this boundary line must be drawn mthin the confines of the territory in dispute as determined by the Convention of Paris between the Republic of Costa Rica and the Republic of Colombia of January 20, 1886. ' ' II. Object and Plan of This Opinion. This matter being under submission before the Hon- orable Chief Justice of the United States, the Govern- ment of Costa Rica has been pleased to engage the undersigned counsel to examine all the antecedents of the case, the allegations of the Parties litigant, and the laws and Royal acts invoked, and to give an opin- ion in regard to the boundary question between the Republics of Costa Rica and Panama, as affected by the Spanish colonial law. In order to fulfill the duty with which it has hon- ored us, we have carefully examined all the data re- lating to the question, and after mature reflection, have prepared the present opinion. We will not go beyond the sphere of Spanish colonial law, as to which we are consulted, and we wish to state that we adopt this denomination, not because it lias been used in Spain — who called her territories of the Indies kingdoms and provinces, instead of colonies — but for greater clearness and in contradistinction to international law, into which we shall not intrude. What may be the efficacy of the decision of Monsieur Loubet under international law, and what the value of the intercolonial boundaries in fixing the international lines between two adjoining provinces dependent upon the same mother country and now converted into sov- ereign States, are questions foreign to our exami- nation. 11 But we do contend that to determine the question ot* the boundaries between Costa Rica and Panama ac- cording to Spanish colonial law is equivalent to de- ciding it under international law, because that law has been fundamentally the basis of the boundary set- tlements of the Spanish-American republics, because the entire discussion in the present litigation turns upon that law solely, and because the 'Hrue intent of the Award" of Monsieur Loubet was to sustain that system of laws. Although, as we have indicated, this Award con- tains no reasoning whatever, it clearly appears that the Arbitrator did not have any other intention, since it refers only to the laws. Royal cedulas and Royal orders of the colonial epoch which it cites in detail in the preamble, save the Treaty of 1825, between the Republics of Central America and Colombia, which recognized as boundaries those then existing, that is to say, the intercolonial boundaries. And since, according to the Convention of J.910, tiie Chief Justice must take into account all the facts, cir- cumstances and considerations of the case, and since the case involves the legality of the demarcations of Costa Rica and Panama according to Spanish colonial law, we will have to set forth all those facts, circum- stances and considerations arising during the period of the sovereignty of Spain inasmuch as they contrib- ute to clear up the matter. The question of boundaries being placed, therefore, in the field of Spanish colonial law, we divide this opinion into three parts, comprising the three proposi- tions following: 1. The Province of Costa Rica and that of Veragua 12 were definitively established and marked out by the Crown in the Sixteenth century (1573). 2. The Recopilacion de Indias (Compilation of the Laws of the Indies) respected and confirmed the ex- istence and demarcation of Costa Rica. 3. Costa Rica continued in the same legal status of differentiation from Veragua, from the publication of the Recopilacion down to the independence. Under these three heads we shall group the differ- ent controverted questions, developing our opinion thereon as we proceed. 13 FIRST PART. The Province of Costa Rica and Veragua Were Definitively Established and Bounded by the Crown in the XVIth Century (1573). SUMMARY. I. Necessity for Studying the Formation of the Prov- inces of Veragna and Costa Rica. 1. The "Veragua" Equivoque as the Premise of the Principal Argument of Columbia. 2. The History of the Formation of the Provinces of Veragua and Costa Eica Clears Up the Equi- voque and Clearly Demonstrates How They Were Recognized and Differentiated in the XVIth Century. II. The Primitive Veragua (1502 to 1537). 1. The Veragua of Christopher Columbus (1502). 2. The Veragua of Nicuesa (1508). 3. The Veragua Bordering on the Castilla del Oro of Pedrarias Davila (1513 to 1527). 4. The Veragua of Felipe Gutierrez (1534). III. Province of Veragua. 1. Creation of the Dukedom of Veragua; Royal Cedu- lasofl537. 14 I 2. Limits of this Dukedom. 3. Suppression of the Ducal Seignory (1556). 4. Organization of the Province of Veragua with a Grovemor Captain-General. IV. Province of Costa Rica. 1. Royal Veragua; Province of Costa Rica; Govern- ment of Sanchez de Badajoz (1539). 2. Province of Cartago; Government of Diego Gu- tierrez (1540). 3. Province of New Cartago or Costa Rica, From the Birth of the Province of Veragua (1560) : (a) Differentiation of the Two Veraguas, After the Suppression of the Ducal Seignory; (b) Ortiz de Elgueta (1559); (c) Juan de Cavallon (1560) ; (d) Denial of the Request of the Governor of Tierra Firme, Figuerola (1561); (e) Vazquez de Coronado (1562) ; (f) Perafan de Ribera (1566). 4. The Province of Costa Rica Definitively Organ ized; Govermnent of Artieda (1573) ; (a) Royal Cedula of Philip II of December 1, 1573; (b) Formation of the Province of Q^ei>uzgalpa by the Segregation of That of Costa Rica, Prior to 1573; (c) Boundaries With the Province of Veragua. V. The Question of Boundaries Settled by the Royal Cedula of 1573 and not by That of 1537. 1. Importance, Confirmations and Subsistence of the Royal Cedula of 1573. 2. Inefiicacy and Abrogation of the Royal Cedula of 1537. I. NECESSITY FOR STUDYING THE FORMATION OF THE PROVINCES OF VERAGUA AND COSTA RICA. 1. The "Veragua'* Equivoque as the Premise of the Principal Argument of Colombia. The question of boundaries pending between the Republics of Costa Rica and of Panama (the successor to that of Colombia) refers to the territory which was called *'Veragua;" out of this was fonned the Prov- ince of Costa Rica, which is now the Republic of that name, and the Province of Veragua, which belonged to the Republic of Colombia and now belongs to Panama. Placing this question of boundaries within the sphere of Spanish colonial law, we find that it was set- tled in the XVIth century by the formation of these two provinces, and more specifically by the Royal cedula of December 1, 1573 (Doc. No. 62), which es- tablished forever the differentiation between them. And if it is always useful to know how any political entities which litigate their geographical boundaries were formed, it becomes indispensable in the present case, inasmuch as Colombia has enlarged her claims to the extent of denying the very existence of Costa Rica as a Spanish province, and has asked as her limits those mth which Costa Rica ends on the side opposite to the Colombian borders, in order clearly to get from the Arbitrator the greatest extension pos- sible, although it could not be expected that the arbi- tration would result in the suppression of the adverse international personality. 16 The ancient Veragua passed through various phases in its historico-legal evolution, until its name became concreted into one of the three provinces that arose out of it ; Colombia makes use of the ' ' equivoque ' ' to which the variety of the applications of the name gives rise, and founds thereon her argument. All of Colombia 's counsel employ, as their principal argument, the one which may be formulated in the following syllogism: Law 9, title 1, book V, of the Recopilacion de Indias (Doc. No. 135), with reference to the Royal cedula of Carlos V of March 2, 1537 (Doc. No. 13), says that ''the whole Province of Veragua belongs to the Government of Tierra Firme;" there- fore it is that since to Colombia belongs that which was under the Government of Tierra Firme, it follows that all of the Province of Veragua belongs to her. And as the Veragua of 1537 comprised all of the territory in- cluded between Castilla del Oro and Cape Gracias a Dios, and as within that territory was included that which Costa Rica now holds, the latter should have it, as also that which extends from the Desaguadero, or River San Juan (the boundary of Costa Rica with Nicaragua) as far as Cape Gracias a Dios. Don Francisco Silvela, who signed the first "Memo randum of Colombia," asserts that according to the Royal cedula of March 2, 1537, Veragua comprised from Castilla del Oro as far as Cape Gracias a Dios. but as the litigation was only with Costa Rica — which went no farther than the River San Juan — that river should be the northern limit on the Atlantic (p. 61). Monsieur Poincare says the same in the second and third "Memorandum of Colombia." declaring in the latter, in capital letters, "let the whole Province of Veragua belong to the Government of Tierra Firme" ; 17 this being the decisive phrase, which solemnly ex- presses, in his judgment, the thought of the Spanish Monarch (p. 2). In the ''Summary (resume) of the Conclusions of Colombia," also presented to the Ar- bitrator by Monsieur Poincare, he condenses the argu- ment as follows: "The whole of the Province of Veragua de pended from the Audiencia of Panama and this Audienca was swallowed up in the Viceroyalty of Santa Fe. Colombia is unquestionably the suc- cessor to the right of the Government of Tierra Firme, of the Audienca of Panama and the Vice- royalty of Santa Fe. All of the Province of Vera gua ougbt, therefore, to belong to Colombia. Sincp its origin the Province of Veragua has extended as far as Cape Gracias a Bios. (See the Eoyal ce- dula of March 2, 1537). It has never been di- vided. ' * 2. The History of the Formation of the Province of Verague and Costa Rica Clears Up the Equivoque and Clearly Demonstrates How They Were Recognized and Differentiated in the XVIth Century. History clears up the equivoque upon which Colom- bia bases her argument, for it shows the different sig- aifications which the denomination of "Veragua" had until it came to be applied solely to one determinate province. This investigation of the formation of the Province of Veragua and Costa Kica has, besides its historical interest, the immense importance of clearly demon- strating how the question, which is now being tried be- tween Costa Rica and Panama, was settled in the XVIth century by the Spanish colonial law — ^not by virtue of the Royal cedula of 1537, but of the Royal 18 cedulas of December 1, 1573, (Doc. No. 62) and Feb- ruary 18, 1574 (Doc. No. 63). We think that Colombia's counsel, by taking as a point of departure the Recopilacion de Indias, have obscured the controversy; they have mixed legal con- siderations deduced from its texts with historical as- sertions difficult of comprehension in connection with those texts, without previously taking up the history of the formation of those provinces, as was done by counsel for Costa Rica in his first Memorandum. It seems to us better to explain and discuss first the acts and legal dispositions that preceded the Recopilacion, and then, afterwards, to examine the Recopilacion^ and, taking its laws altogether, apply them to the facts and prior dispositions which are already known, with- out having to interrupt the doctrinal demonstration with historical digressions appropriate to the preced- ing epoch. For greater clearness, also, we divide the historico- legal examination of the epoch prior to the Recopila- cion into three sections, which cover respectively: (1) that which we call primitive Veragua, that is, from the discovery by Columbus, in 1502, down to its divi- sion into Ducal Veragua and Royal Veragua, in 1537 j (2) the Province of Veragua, and (3) the Province of Costa Rica. Within each section we follow the chro- nological method, which, thus combined with the geo- graphical division, obviates the confusion that results when, by observing the former exclusively and keep- ing the order of the dates, different facts relating to distinct provinces, are mingled. From all this ex- amination we shall deduce, at last, that the question of boundaries was settled by th« Royal cedula of 1573, and not by that of 1537. reRRiToniEs of centr/^l ^jmer/c/j ay COLI/MBV3 MIS FC^'^TM YOr/JGC ^ /SO z) n. THE PRIMITIVE VERAGUA (1502 TO 1537). 1, The Veragua of Christopher Columbus (1502). For many years the territories of Central America lying along the coast of the Atlantic, from Cape Hon- duras as far as the port of Retrete (nov/ the port of Escribanos) near Cape San Bias, and which Christo- pher Columbus discovered in his fourth and last voy- age of 1502, were known by the name of "Veragua." Strictly speaking this name belonged only to a ham- let and a small surrounding territory. Columbus re- lates, in Ms letter from Jamaica, of July 7, 1503, to the Catholic Sovereigns (Doc. No. 1), in which he gives an account of this voyage, that two Indians took him to Carambarii (Zorobaro), where the people went naked, with but a mirror of gold at the neck, telling him of many places on the coast in which gold was to be foimd; ^'the farthest," he said, ''was VeragvM, distant from there about 25 leagues." And in de scribing in detail the same voyage, Diego de Porras explains how Columbus, entering by the river he called Belen, '-'in the territory of Veragua," proved the ex- istence of the mines. So Columbus understood that Veragua was situated 25 leagues to the east of Zoro- baro and extended to the River Belen. The great fame acquired by this territory of Ve- ragua — ^in which Columbus stated that in the first two days he had seen greater signs of gold than in Es- paiiola (the Island of Hispaniola, or Hayti) during four years — caused its discovery to be considered as the most important of that fourth voyage, and the 20 name *'Veragiia" was applied to all that was discov- ered there, from Cape Honduras as far as the Cape of San Bias. 2. The Veragua of Nicuesa (1508). When Columbus returned to Spain he claimed from the Catholic Sovereigns the fulfillment of the promises made to him, especially as to the seignory of the terri- tory of Veragua, which was the one that he held in the greatest esteem. But he did not have the support of Queen Isabella, who had died, and the Catholic King did not admit his claims, considering them excessive and dangerous to the Royal sovereignty. The Admiral having died without succeeding in his desires, Don Diego Columbus, his son and heir, instituted a suit, in 1508, against the Crown, which was in great part settled by the creation of the Dukedom of Veragua, in 1536. By the Royal cedula of Dona Juana, of June 9, 1508 (Doc. No. 2), the Government of Veragua was granted to Diego de Nicuesa ; therein he was given besides the military command, "full power and jurisdiction, civil and criminal," although restricted by the right of appeal to the Governor of the Island of Espanola. In this Royal cedula the extremity of Veragua was clearly fixed on the side of Tierra Firme, in the Gulf of Uraba, and it was provided further that the part of Uraba is that granted to Alonso de Ojeda; but there is no indi- cation where the Government of Veragua which was granted to Nicuesa, terminated on the west and nortli. Fray Bartolome de las Casas and other historian.^ of the Indies (like Herrera and Navarrete) say that the Veragua of Nicuesa extended from the Gulf of 21 Uraba as far as Cape Gracias a Dios. Fernandez de Oviedo asserts that it was from the same Gulf of Uraba **as far as the end of the territory called Veragua.'' Senor Peralta observes very properly, that the only data which the Catholic King had before him on which to base the grant of the Government of Veragua, were the courses and indications of Columbus, and if thes<3 be ignored, there is just as much reason to conjecture that it extended to Cape Gracias a Dios as that it extended to Cape Honduras, or any other point in the voyage of the Great Discoverer. This strengthens the extension that was given to the name of Veragua. Nicuesa did not succeed in founding anything in the territory which was allotted to him ; he stayed only in the Veragua of the Belen river and in the Island of the Escudo of Veragua (or Nicuesa), and there en- dured many misfortunes, disappearing, in 1511, in a shipwreck. Vasco Nunez de Balboa, who had founded the colony of Santa Maria del Darien, within the jurisdiction of Nicuesa on the western coast of the Gulf of Uraba, in a letter of January 20, 1513 (Doc. No. 3), giving an account to the King of the progress of that colony, asked that he might be allowed to bring back some Indians "of the part of Veragua from a gulf called San Bias, which lies at a distance of 50 leagues from this town down the coast." So that according to Nunez de Balboa, Veragua did not terminate on its eastern side at the Belen river, but included also the territories of the Gulf of San Bias. Vasco Nunez de Balboa discovered the South Sea (Pacific) on September 25, 1513. 22 3. The Veragua Bordering on the Castilla del Oro of Pedrarias Davila (1513 to 1527). By the Royal cedula of July 27, 1513 (Doc. No. 4), Pedrarias Davila was appointed Captain-General and Governor of the Province of Castilla del Oro (the first time that this denomination was applied to Tierra Firme) "so long as it does not include nor have em- braced within it the Province of Veragua, the admin- istration of which belongs to the Admiral Don Diego Columbus, because the Admiral, his father, discovered it in person." The Province of Castilla del Oro was, therefore, differentiated from the ** Province of Ve- ragua," which was thus denominated before the crea- tion of the dukedom of the same name ; but the bounda- ries between the two were not fixed. Gonzalo Fernandez de Oviedo, the official historian of the Indies, who intervened in the conquest of Tierra Firme and Nicaragua, says that "Castilla del Oro on the North Coast reaches as far as Veragua, with which the Punta de Chame corresponds more or less on the South Coast, fifteen leagues to the West from Panama. ' ' This limit agrees with that of the jurisdiction of the city of Panama, fixed by the Royal cedula of 1521 (Doc. No. 5), wherein it is stated that it reaches "as far as the Province of Chirii," which is situated a short distance from the Punta de Chame. According to this, the Province of Veragua, border- ing on Castilla del Oro, did not terminate on the east at the Belen river, but extended as far as the said Punta de Chame. Pedrarias Davila governed Castilla del Oro until 1527, when he left to become Governor of Nicaragua. 23 4. The Veragua of Felipe Gutierrez (1534). Whilst the suit instituted by Don Diego Columbus was still pending, but with the declaration made in hi:* favor by the Crown respecting Veragua (excluding it from the Government of Castilla del Oro), the widow, Dona Maria de Toledo, as guardian of his children and Vicereine of the Indies, determined to grant the Gov- ernment of Veragua to Felipe Gutierrez, and applied to the Council of the Indies for the issuance to him of the requisite Royal provisiones. But in accord with the Council, the King Don Carlos preferred to ^rant the concession directly to Felipe Guterrez ; this he did by the capitulacion approved by the Royal cedula of December 24, 1534 (Doc. No. 8), and at the same time, by another Royal cedula, of the same date (Doc. No. 6), he declared that this **is understood to be without prejudice to any right that the said Admiral Don Luis Columbus claims to have to the said government by virtue of his privileges." In the Royal cedula of February 6, 1535 (Doc. No. 9), the title of Governor of Veragua was conferred upon Felipe Gutierrez with all that pertained thereto. Both in the Royal cedula of capitulacion, as well as in the title the text reads : "The Province of Veragua, which is on the coast of Tierra Firme of our Indies of the Ocean Sea, whence terminate the boundaries of the Government of Castilla del Oro, called Tierra Firme, and which were designated to Pedrarias Davila and Pedro de los Rios, who were our Gov- ernors of the said province under the Provis- iones which were given to them, as far as the Cape Gracias a Dios." 24 Felipe Gutierrez as Governor of Veragua, having presented a complaint against the Governor of Tierra Firme, because the latter had invaded his territory, the Eoyal cedula of July 14, 1536 (Doc. No. 10), was issued, directing the latter not to enter within the lim- its of the Province of Urraca, as it fell within that of Veragua. The territories of Urraca were contiguous to Nata and occupied the heights which divided the waters of the north and the south; so that by this Royal cedula the eastern boundaries of the Province of Veragua were concretely defined. Almost at the same time Felipe Gutierrez abandoned his charge and set out for Peru, having failed in his undertaking and being unable to support so many misfortunes. ni. PROVINCE OF VERAGUA. 1. Creation of the Dukedom of Veragua; Royal Ce- dillas of 1537. The long suit based upon the claims of Christopher Columbus, which his son Don Diego began in 1508 and which was continued by the widow of the latter, Dona Maria de Toledo — for herself and in the name of her first born, Don Luis, and other children — was de- cided by the arbitral decision of July 7, 1536^; this decision was delivered by the Cardinal Fray Garcia de Loaysa, Bishop of Sigiienza, Confessor of the Em- peror and President of the Council of the Indies, who was appointed arbitrator by mutual agreement be- tween the Vicereine and the Crown. ' Document published by Fernandez Duro, Coldn y Pincdn. ' ' — ■-^~-" — ■— T/tf VsR/ievft OF Feci PS Sur/^^/tez -'^ ^^y^fSTN C/SS¥ - /SS7J <. i^''-,^^ /'ao/towt TO rut fior/iL. ciouias or OtceMOe/i SV, /fi¥ \, ftartuititr 6. /S^S^ /imo Ji/t-r /<^, /S36 ^^AC-Cmiclffi « Dim ^K jra/fos/>rro ar tmb /for/n. ctouLU ^B^ <" MnncM X, /SS^ ^^H m •• M r \. ^^^_i-"Cr^ '^\~'v^^ y' {o\K N^ ', \ _. s. \ $n^ V \ 25 Carlos V, in his Eoyal cedula of January 19, 1537 (Doc. No. 12), states how both parties entrusted the settlement to the Cardinal in order that he might "determine and arbitrate therein as he shall deem best, taking from one party and giving to the other, accordingly as may appear to him proper;" he con- firms the Cardinal's decision and, in pursuance thereof creates the Dukedom of Veragua in favor of Don Luis Columbus and his successors, making a grant to him and to his house and estate of 'Hwenty-five leagues of land in a square in the Province of Veragua which is in Tierra Pirme, with its civil and criminal jurisdic- tion, high and low, simple, mixed imperial, leaving the supreme to His Majesty." The creation of the Dukedom of Veragua which segregated a square of twenty-five leagues on each side of the territory known under the name of Veragua and the government of which had been granted to Felipe Gutierrez, compelled provision to be made in regard to the legal and the governmental situation in which that territory was left, especially since, at the end of 1536, the desertion of that governor had become known in Spain. This led to the Royal cedula of March 2, 1537 (Doc. No. 13), in which the Emperor revoked the capitulacion and government of Felipe Gutierrez, reproduced the disposition concerning the creation of the dukedom and directed that the territo- ries left in the said Province of Veragua, after taking out the twenty-five leagues given to Don Luis Colum- bus, be understood to belong to the Government of the Province of Tierra Firme, called Castilla del Oro, ''during our will and pleasure." By virtue of this Royal cedula, upon which counsel for Colombia mainly rely in defense of her rights, the 26 territory of the ancient Veragua granted to Felipe Gutierrez was divided into two parts, which, in order to distinguish them, are designated in the present con- troversy Ducal Veragua and Royal Veragua, refer- ring respectively to that which constituted the Duke- dom of Veragua and to that which was reserved by the Crown for its free disposal. 2. Limits of This Dukedom. In this Royal cedula of March 2, 1537, as well as in the earlier one of January 19th, the boundaries of the Dukedom of Veragua were fixed in the following manner : << * * * ^ square of land twenty-five leagues, in the said Province of Veragua * * * and they begin from the River Belen, inclusive, counting by a parallel, as far as the western part of the Bay of Zorobaro; and all the leagues that may be lacking for the said twenty-five leagues, shall be counted forward from the said bay by the said parallel; and where these twenty-five leagues terminate, another twenty- five shall begin by a North-South meridian ; and as many others begin from the said River Belen by the said meridian of the said river, North- South ; and where these said twenty-five leagues shall end, there shall begin another twenty-five leagues, which shall continue, counting by a parallel, until they end where the twenty-five leagues terminate that are counted proceeding forward from the Bay of Zorobaro; which ter- ritory we have commanded to be called the Bay of Zorobaro, and with it we direct to be given him the title of Duke * * *" 27 As may be seen, the demonstration is mathematical ; the grant forms a perfect quadrangle, which has one side definitely determined by the meridian correspond- ing to the Belen river, included therein. It should be noted that Zorobaro and the Belen river were for Christopher Columbus the indicatory points of the Veragua discovered and coveted by him under this name ; and it appears that between the meridian of the Belen river and the Province of Castilla del Oro, which the prior demarcations refer to as bordering on the Province of Veragua, there were lands which were not included in the Dukedom of Veragua. These facts must be taken into consideration when the time comes to interpret the Recopilacion de Indias in its relation to the Royal cedula of March 2, 1537; and without concerning ourselves now with the terri- tory of the Royal Veragua left on either side of tha twenty-five leagues of the dukedom, let us see how the latter was converted into the Province of Veragua properly so-called. 3. Suppression of the Ducal Seignory (1556). Don Luis Columbus was not fortunate in the con- quest and government of the dukedom which was ex- ercised and carried on by governors and captains ap- pointed by him, and after the disaster in which his brother Francisco perished and the failure of Rebol- ledo, he made a cession to the Crown of the territories and seignory of the Dukedom of Veragua, in consid- eration of an annual pension of seven thousand ducats , but the title he retained, as he stipulated with the Council of the Indies in writing on July 4, 1556, which stipulation the King approved and directed to be car 28 ried out by the Eoyal cedula of December 2 of tlie same year (Doc. No. 31). The territory of the suppressed dukedom was left added to the Government of the Province of Tierra Firme, called Castilla del Oro, it not being true that it was placed under the jurisdiction of the city of Natd, as coimsel for Colombia assert. The fact is that, by the Royal cedula of January 21, 1557 (Doc. No. 32), the Governor of Tierra Firme was authorized to per- mit the inhabitants of Nata to settle the territory of the dukedom as they had asked permission to do. The inhabitants of Nata organized an expedit'.oij under the command of Francisco Vazquez, who was commissioned by the Governor of Tierra Firme, and who, in May, 1558, entered the territory of Urraca, founded some settlements and discovered some mines- The Governor of Tierra Firme, Monjaraz, learning of this, wanted to make the conquest himself, and set our for Nata; but Vazquez hastened to make a cjm plaint to the Audiencia of Peru (Doc. No. 33) and with his men resisted the entry of Monjarez, defeating him on the banks of the Gatu river, the boundary of the Dukedom of Veragua on the side of Nata. 4. Organization of the Province of Veragua With a Governor Captain-General (1560). In view of the complaint instituted by Francisco Vazquez, the Audiencia of Peru, by Royal provision of May 20, 1559 (Doc. No. 33), appointed Bernardino de Roman to take up the matter and arrange its settle- ment. Bernardino de Roman was informed of all that 29 had happened and then made a long report to the King, giving an opinion very favorable to Vazquez.^ Philip II put an end to the question by the Royal cedula of August 20, 1560 (Doc. No. 40), instituting the Province of Veragua with a Governor Captain- General and appointing for this post Francisco Vaz- quez, to whom he granted all the attributes necessary for the good government and administration of jus- tice in that province. The boundaries of the new Government were not fixed; but there can be no doubt that it had for its territory that of the suppressed dukedom, according to the antecedents of this Royal cedula and to the lan- guage used therein respecting the origin of the ques- tion decided. Francisco Vazquez, in his petition to the Audiencia of Peru, appears, represented by at- torney, as a resident of the city of Nata by virtue of the rights established by the Royal cedula of January, 1557, which, he says, ''commands the Governor of the Province of Tierra Firme to appoint a person who should settle and conquer the Province of Veragua, that was the Dukedom of the Admiral Don Luis Co- lumbus, but which His Majesty had placed again under the Royal Crown * * *." The Royal cedula of 1560, appointing him Governor, began by stating that he made an agreement and capitulacion with the Gov- ernor or Tierra Firme in order to settle the Province of Veragua, as the latter had been authorized. Francisco Vazquez, then, was the first of the gov- ernors who ruled the Province of Veragua, which con- tinued under that kind of authority during the whole of the Colonial epoch. * Leon Fernandez, Coleccidn de Documentos para la Historia de Costa Rica, Vol. V, p. 153. IV. PROVINCE OF COSTA RICA. L Royal Veragua; Province of Costa Rica; Govern- ment of Sanchez de Badajoz (1539). As we have said, by Royal cedula of March 2, 1537, the Veragua the governinent of which was granted to Felipe Gutierrez, was left split up into two parts : the dukedom, that is to say, the square of twenty-five leagues given to Don Luis Columbus ; and the rest of that territory, herein called for greater clearness Royal Veragua, in contradistinction to Ducal Veragua. The said Royal cedula, from which Colombia dejives all her rights, simply says in respect of Royal Ver- agua, that it was left in the Government of Tierra Firme (Castilla del Oro) during the Monarch's pleas- ure; and the Monarch repeatedly disposed of it, to that extent, at least, therefore, repealing the Royal cedula referred to. In the first place the jurisdiction over Royal Ver- agua passed from the Government of Tierra Firme to the Audiencia of Panama, which replaced the for- mer in 1538. Because of the fact that Royal Veragua depended upon the Government of this Audiencia, its Judge, Dr. Robles, thought that he was authorized to make a capit- ulacion giving it to his son-in-law, Hernan Sanchez de Badajoz, who already, through the Vicereine, had the Government of the dukedom under his charge, and because ** the one did not go without the other." It was so stated by him in his letter to the Council of the Indies of the 19th of July, 1539 (Doc. No. 15). 31 But Rodrigo de Contreras, Governor of Nicaragua, had commissioned two captains to undertake the ex- ploration of the Desaguadero, or River San Juan, and, as the latter disembogued on the Veragua coast which had been granted to Sanchez de Badajoz, the Au- diencia of Panama informed that governor of the undertaking by Royal provisiones of December 17, 1539 (Doc. No. 16) ; in this he was told that the grant to Sanchez de Badajoz comprised the right of conquest and Captaincy-General of the Province of Costa Rica, "which extends from the borders of the Dukedom of Veragua and Zoroharo as far as Guaymura (Cape Camaron) and from Sea to Sea." This is the first time that the name of Costa Rica appears officially, and as equivalent to the wider acceptation of Veragua, that is to say, to the coast discovered by Columbus during his last voyage (as far as the dukedom) with the addition of the extension ' ' from Sea to Sea. ' ' The King, in accord mth the Council of the Indies, by Royal cedulas communicated to Sanchez de Bad ajoz, and to the Audiencia, on April 24th, 1540 (Doc. No. 17), declared void the concessions which the latter made of *'the lands which are left to us in the Province of Veragua * * * because this is a matter that must be treated solely by our Royal Person and in our Council of the Indies." 2. Province of Cartago; Government of Diego Gutier- rez (1540). At the solicitation of Diego Gutierrez, brother of Felipe, and in accord with the views of the Council of the Indies, the Crown authorized him to undertake the conquest and settlement of Royal Veragua, and 32 issued the Eoyal cedula of November 29, 1540 (Doc. No. 18), which approved the capitulacion. and con- ferred upon him by Royal cedula of December 16 of the same year (Doc. No. 19), the title of Governor of that province, which was then designated by the name of Cartago. As appears from these documents, the government granted to Diego Gutierrez under this denomination of Cartago, is the same as that which the Audiencia of Panama improperly granted, under the name of Costa Rica, to Sanchez de Badajoz, but with greater precision as to boundaries. The line of the dukedom is fixed as a basis by the meridian corresponding to the termination of the twenty-five leagues which were to end towards the Bay of Zoroharo; the province stretches in length along the coast as far as the Eiver Grande, to the west of Cape Camaron; its width is fixed as from ''sea to sea" up to Nicaragua and then limited by this province to fifteen leagues from its Lake Nicaragua and by that of Honduras as far as the River Grainde. This demarcation established by the Royal cedulas of 1540, was confirmed by that of January 11, 1541 (Doc. No. 20), in which all the governors of the prov- inces were commanded to respect the boundaries of the Province of Cartago ; by the sentence of the Coun- cil of the Indies, of April 9, 1541 (Doc. No. 232), in the suit instituted iu regard to the Desaguadero, and by the Royal cedula of May 9, 1545 (Doc. No. 29), adding the Province of Cartago to the Bishopric of Nicaragua. All of these go to show that the vague reference to the Royal Veragua, made in the Royal cedula of 1537, had no importance and even no legal 33 force after the recognition and delimitation of the Province of Cartago. Diego Gutierrez died in a fight with the Indians, and the Crown, in conformity with the designation made by his son in favor of Juan Perez de Cabrera, con- ferred upon the latter the title of Governor of Cartago, on February 22, 1549 (Doc. No. 30). The Council of the Indies having agreed that the conquest of this province be postponed, Cabrera was transferred to the Government of Honduras (1552). 3. Province of Cartago, or New Cartago or Costa Rica, From the Birth of the Province of Ve- ragua (1560). (a) Differcntiafion of the Two Veraguas, After the Suppression of the Ducal Seigiwry, It may be thought that hy the retrocession of the Dukedom of Veragua to the Crown, in 1556, the dif- ference between the Dukedom of Veragua and the Royal Veragua disajjpeared, and that they returned to form the Province of Veragua as it existed before the creation of that dukedom by Royal cedula of March 2, 1537. But such was not the case, for each con- tinued with an independent life, with governments of distinct origin and constituted as distinct provinces under different names. We have already seen how the conquest and settle- ment of the suppressed dukedom was made, from. Tierra Firme, by Francisco Vazquez, under whose command, as Governor and Captain-General, the Province of Veragua was organized in 1560 — since then the only province of that name. 34 In order that the ambiguity of the denomination oi Veragua might disappear and not be confused with that of the dukedom, the Audiencia of Panama called the Eoyal Veragua which was improperly granted to Sanchez de Badajoz, Costa Rica, and Charles V called that same Veragua which he granted to Diego Gutier- rez, Cariago, perhaps also by not admitting even the name of that grant which he had revoked. The historian, Fernandez de Oviedo, says that Diego Gutierrez ordered that his Government be called Car tago and Costa Rica, under penalty of a hundred lashes to whoever should dare to call it Veragua. In the period that intervened between his government and the year 1573, it was designated indiscriminately by the names of Cartage, New Cartago and Costa Rica, and with each change the latter name came more fre- quently to be used. Costa Rica is, then, the province that was definitively constituted in 1573 by the separa- tion of the portion north of the Desaguadero, which was to be called the Province of Teguzgalpa to dif- ferentiate it from that of Veragua ; for the latter was reserved the name of Veragua, which has led to so much confusion. Whilst the formative current of the Province of Veragua came from the side of Tierra Firme, that o? the Province of Costa Rica proceeded from Nicaragu'i and Guatemala, that is to say, from the opposite side. (b) Ortiz de Elgueth (1559). The King, Don Philip II, by an unquestionable act of sovereignty and without the intervention of any capitulacion whatever, entrusted the settlement and 35^ government of Royal Veragua to the Licentiate Alonso Ortiz de Elgueta, as Alcalde mayor of the Province of Nicaragua, by Royal cedula, dated at Toledo De- cember 13, 1559 (Doc. No. 34), which begins thus : ''We are informed that between that Province of Nicaragua and that of Honduras and the Desaguadero of Nicaragua, on the side of {a la parte de) the cities of Nombre de Dios and Panama, between the South Sea and that of the North, there are many Indians without light or knowledge of the faith, but who have shown great evidences of yielding obedience and re- ceiving the Christian doctrine; and since we much desire that this country may be settled and properly governed, as well as the natives thereof enlightened and taught in our Holy Catholic Faith, and also that the Spaniards who go that way be benefited and established and may have a fixed location and livelihood * * * We directed it to be discussed in our Council of the Indies * * * and so we command you that you undertake the same * * * and in the said settlement and exploration you will ob- serve, and will cause to be observed, the direc- tions in this instruction contained, which are as follows:" (Then follow the directions.) By Royal cedula of February 23, 1560 (Doc. No. 37), this resolution was communicated to the Audiencia of the Confines (Guatemala), directing it to give to the Licentiate Ortiz *' every encouragement and aid;" and by another of the same date (Doc. No. 38) the com- mission conferred upon the latter was reiterated, with new instructions; in the latter he was authorized, as he was in the former, to give lands to the settlers and to exempt them from imposts, so that one could almost say that it had the character of a carta de poblacion (Royal charter), like those which were given at the period of the Spanish reconquest. In both of these Royal cedulas the territory allotted to the Alcalde mayor' of Nicaragua is described in the same words which we have underlined in that of De- cember 13th, from which it may be instantly inferred that this territory was the same that was granted to Sanchez de Badajoz under the name of Costa Rica, and to Diego Gutierrez under that of Cartago, though it is described with less precision of boundaries than in the latter case. The illustrious French jurisconsult, Monsieur Poin- care, says in the third Memorandum in defense of Co- lombia (No. 30), that ''the province designated under the name of Costa Rica in the cedula of February 23, 1560, and granted to the Licentiate Ortiz, Alcalde mayor of Nicaragua, did not embrace the ancient Prov ince of Veragua and was no more than a little scrap of land {un petit lamheau de terre) included between the Provinces of Honduras and Nicaragua and the Desaguadero. " But in reading this Royal cedula, the name of Costa Rica is not to be found; on the other hand, it may be observed that Monsieur Poincare has omitted the last part of the description * * * "on the side of the cities of Nombre de Dios and Panama, between the South Sea and that of the North." With the text thus clipped, the result for Colombia was that "le petit lamheau de terre" called Costa Rica was the Mosquito Coast extending from the Desa- giiudero or .iM\'or San Juan, toward the north, which later became the Province of Teguzgalpa. And if it is certain that this portion was also included in the 37 Costa Eica of Sanchez de Badajoz and the Cartago of Diego Gutierrez, it is not that the territory entrusted (not granted) to the Alcalde mayor of Nicaragua should terminate at the Desaguadero, but that it was extended ''to the side of {a la parte de) the cities of Nombre de Dios and Panama, between the South Sea and that of the North," that is to say, as far as Tierra Firme, which signifies a further abrogation of the Royal cedula of 1537, upon which Colombia bases her rights. (c) Juan de Cavallon (1560). While Philip II conferred upon Ortiz de Elgueta the commission mentioned, the Audiencia of the_Con- fines (Guatemala) gave a similar charge to the Licen- tiate Juan de Cavallon, who had been Alcalde mayor of Nicaragua ; and advised the King, on December 18, 1559 (Doc. No. 35), that it had commanded him to make settlements in the Province of Veragua ''which is otherwise called by the name of New Cartago * * * in this district of ours;" the Audiencia also issued a Royal provision on January 30, 1560 (Doc. No. 36), by which the said Cavallon is granted the regulation and license to explore, settle and govern (with the title of Alcalde mayor) the Province of Cartago, or New Car- tago and Costa Rica, from that of Nicaragua. The King replied to the Audiencia of the Confines by the Royal cedula of July 18, 1560 (Doc. No. 39), which begins thus: "You state that the Province of Veragua, which is otherwise called by the name of New Cartago, is in that district of yours and border's 38 on the Province of Nicoya, where we always have a corregidor, * * *'» And referring to the propositions for its exploration and settlement, the King states as follows : "For the settlement of Nicoya and territory adjacent thereto, we have provided the Licen- tiate Ortiz, our Alcalde mayor of the Province of Nicaragua, to whom was given the commis- sion necessary therefor ; and as to the territory that there is in Veragua, on the side of Nata, Captain Francisco Vazquez has settled it by oui order. When the commission of each in examined by you, the proper order will bi given. ' ' Colombia has brought to her defense a report pre- pared by various distinguished archivists, librarians and lawyers of Seville, where the Archives of the In- dies are kept, concerning this Royal cedula of July 18, 1560; they interpret it as follows: * * The King established with perfect clearness the difference that there is between the territory of Nicoya, the settlement of which had been entrusted to the Licentiate Ortiz, and the other territory not contiguous to Nicoya, territory be- longing to Veragua, and which, also by Royal order, the Captain Francisco Vazquez was set tling. The expression 'on the side of Nata' (por la parte de Natd) merely indicates the point from whence Francisco Vazquez set out with his men to conquer the territory of Ver- agua. ' ' Monsieur Poincare, making this report his own, states that there had been omitted in the copy of this Royal cedula, cited by Costa Rica, a comma after 39 **Veragua" and before "on the side of Nata," that the name of the Licentiate Ortiz has been confused with that of the Licentiate Cavallon, and that the grant to the Licentiate Ortiz was from Honduras as far as the Desaguadero (third Memorandum of Colombia, No. 30). Putting aside the latter assertion, which we have just refuted, we will say that the comma does not affect the sense of the text, which, indeed, could not be clearer. The Royal cedula does not place the territory of Nieoya in opposition to that of Veragua, nor does it say tliat only the former was entrusted to the Licen- tiate Ortiz, because the latter belonged to the othe: conquest which Francisco Vazquez had begun by Nata. What this Royal cedula does state, and most clearly, are the very conclusions we have just presented; that is, that the ancient Veragua had been divided into two parts ; one, the grant under the government of Fran- cisco Vazquez, by which the Province of Veragua was instituted; and the other, that which was entrusted to Ortiz de Elgueta, coterminous with Nieoya, and to which the Audiencia of the Confines referred in de- livering it to Cavallon, and of which, furthermore, the King had disposed in conferring it upon the former. The Royal cedula refers precisely to the commissiorv given to the Licenciate Ortiz who is mentioned therein by name, which commission was not revoked until later, and then in favor of Cavallon. It is impossible to interpret a legal document with any degree of certainty which is part of an historical series, without reading it in connection with its antecedents ; the best experts will fall into error if they do not follow this procedure or if they undertake to consider that document as an isolated fact. 40 How Cavallon himself interpreted the concessiou made to him by the Audiencia of the Confines is very clearly shown by the legal authority which he granted on September 22nd, 1560 (Doc. No. 41), to his asso- ciate and deputy, Juan Estrada Ravage, so that he might represent him in his charge and undertaking. Cavallon declares that the Province of Cartage and Costa Rica, the settlement of which belonged to him, '' * * * is all the territory that is left in the Prov- ince of Veragua, from sea to sea, inclusive, and which begins from where ends the square of twenty-five leagues that His Majesty granted to the Admiral Don Luis Columbus, towards the West * * * and it terminates at the Rio Grande, towards the West, on the other side of Cape Camaron. ' ' Philip II, who had, as we have seen, reserved the right to provide in regard to the matter, acted by Royal cedula of February 5, 1561 (Doc. No. 42), addressed to the Audiencia of the Confines, saying that he revoked the commission which he had given to Licentiate Ortiz, and directed that the Licentiate Cavallon execute it under the same conditions provided as to the former, and that, if the latter did not accept it, a Judge of the said Audiencia should go, or that body should appoint another person to carry out the commission in the same manner. The same directions were given in another Royal cedula of the same date, addressed to Cavallon. It is clearly understood that when the King turned over to Cavallon the undertaking he had entrusted to Ortiz, he performed an act of pure sovereignty, estab- lishing thereby a different demarcation of the Province of Veragua which was under the charge of Francisco Vazquez. In view of the results of the expeditions of Cavallon 41 the Audiencia of the Confines thereunto duly author- ized, appointed him, by Royal provision of May 17, 1561 (Doc. No. 44), Alcalde mayor of New Cartage and Costa Rica, and stated that his jurisdiction, was to extend the creation of two political sub-chiefs; of these, ac- cording to the official communication of its president of April 27, 1814 (Doc. No. 214), to the Minister of Ultramar (Affairs Beyond the Seas), one was to be assigned to Granada, where the vessels unload which 157 arrive at the port of the San Juan river, on one of whose banks it was suggested to locate a settlement of 300 families — and the other in Cartago, capital of the Province of Costa Rica, because of its extent * * * ^*and because upon its coasts, it has the ports of Punta de Arenas on the South and Matina on the North." This resolution demonstrates that the Mosquito Coast continued under the jurisdiction of Nicaragua, and the coast of Matina under that of Costa Rica, and that the establishment of settlements on the San Juan river, re f erred to in the Royal order of March 31, 1808 (Doc. No. 198), proceeded in due course. By Decree of April 29, 1814 (Doc. No. 215), the Cortes resolved to open the port of Punta de Arenas, located to the south "of the Province of Costa Rica.** (c) Description of the Province of Costa Rica in the Proposal Made by Its Deputy in the Cortes For the Creation of a Bishopric. In the session of the Cortes of May 31, 1813, pre- sided over by Don Florencio del Castillo, Deputy for Costa Rica, the proposal of the latter relating to the creation of a Bishopric of that name was read ; it begins as follows: ''In the Committee on Affairs Beyond the Seas there is a Memorial from the Noble Mu- nicipal Council of the city of Cartago, capital of Costa Rica, which asks for the separation of the said province from the Bishopric of Leon de Nicaragua to which it is now added, to the end that a separate diocese being created in Costa Rica, there shall be erected and estab- lished an Episcopal See in the aforesaid city of Cartago." 158 In presenting its arguments, the petition describes the province in general, as follows : "Costa Rica has for the boundaries of its territory the River Chiriqui, which separates it from the Province of Panama, and the River Salto, which divides it from that of Nicaragua, between which two provinces it is located. It has for its boundaries on the North and the South the Atlantic Ocean and the Pacific Ocean. From one of the rivers that are designated to the other, it is more than 150 leagues, by very rough roads and almost impassable on accounl of the multitude of mountains and the large rivers that must be crossed. The distance from one sea to the other is not uniform, but the av- erage is about 70 leagues." The petition goes on to speak of settlements in that province of the number of races among its inhabitants, and sums up by saying : ! **For these reasons Costa Rica was always considered and held since its discovery as a province separate and independent from the others ; governed in political and military affairs by a chief with the title of Governor and Com andante de las Armas, who recognized no other dependency than upon the Audiencia and Cap- taincy-General of Guatemala; so that it is only in ecclesiastical matters that it has been added to the diocese of Nicaragua." It is impossible to describe in a more concrete and positive manner the status of the Province of Costa Rica in 1813 ; and that status conforms perfectly with the status which, according to the evidence adduced from the great mass of oflBcial documents we have cited, always subsisted. 159 2. Absolute Government of Fernando VII. Fernando VII on his return to Spain, in 1814, after the evacuation of the Peninsula by the French, an- nulled all the acts of the constitutional regime, and re- established the absolute government that had pre- viously existed. He left Don Juan de Dios de Ayala as Governor of the Province of Costa Rica, and, in 1818, appointed to that ofifice, Don Bernardo Vallarino. On the death of the latter, the Audiencia of Guatemala filled the office temporarily, by the appointment of Don Juan Manuel de Canas. The Governor of Costa Rica continued in authority on the coast and at the Port of Matina, keeping in com- munication with the Captain-General of Guatemala, as may be seen by various official communications from 1815 to 1819 (Doc. Nos. 218, 219, 200, 225, 226, 227 and 229). By Royal cedula of May 26, 1818 (Doc. No. 228), addressed to the Captain- General of Guatemala, the King commanded a report to be made in regard to the amendment of the impost upon cacao derived from the Valley of Matina. The territory of Talamanca continued to belong to the Province of Costa Rica, as shown by the account given by Fray Ramon Roxas, Comisario prefecto of the Missions, to the Bishop of Nicaragua, dated July 3, 1815 (Doc. No. 217) ; in this he tells the Bishop that *'* * * the reduction of Talamanca is upon the borders of this diocese, on the side adjacent to that ol Panama," and relates how the governors of Costa Rica protect the missions of Talamanca. Although the Cortes was dissolved, Fernando VII by Royal order of June 17, 1814, exhorted those who 160 had been deputies of tlie American provinces, to sub- mit to him the petitions that they had pending, and any- other matters pertaining to their respective provinces. This was done by Don Florencio del Castillo, ex Deputy for Costa Eica, in his statement to the King of Jnly 12 of the same year (Doc. No. 216), in which he reproduces what he had presented to the Cortes on May 31, 1813, repeating the paragraphs that we have transcribed regarding the limits of Costa Rica and insisting that it had always been a province separate from the rest, ruled by a governor dependent solely upon the Captaincy-General and Audiencia of Gua- temala. By Royal cedula of May 26, 1818 (Doc. No. 228), in accord with the Council of the Indies, Fernando VII commanded the Captaincy-General of Guatemala to report concerning the proposal of Don Florencio del Castillo respecting the creation of a Bishopric of Costa Rica, and took counsel with the Intendant and the Bishop of Nicaragua, the Fiscal (Attorney General) and the Audiencia of Guatemala, in order to determine what was best to be done. 3. Second Constitutional Period. The Constitution of Cadiz was re-established in 1820, and wdth it the Provincial Deputation of Nicaragua and Costa Rica; whereupon that deputation on De- cember 13, 1820 (Doc. No. 476), again took up the proposition for the division by districts (enumerating the principal places of each) and the creation of po- litical sub-chiefs. In the note accompan5ring the com- munication concerning those matters addressed to the Minister of Affairs Beyond the Seas, it is shown that i 161 the Province of Costa Rica was under the charge of a political and military governor independent of the Governor of Nicaragua, save in the matter of Hacienda (Finances), of which a sub-iatendant had charge under the Ordinance of 1786, and he depended upon the In- tendancy- General of Nicaragua. By Royal order of February 27, 1822, it was directed that this plan be forwarded to the Minister of the Interior for investi- gation. In the session of the Cortes of May 17, 1821, Don Jose Mariano Mendez, Deputy for one of the Guate- mala districts, presented a memorial of which he was the author, entitled, '* Memorial of the Political and Ecclesiastical Condition of the Captaincy-General of Guatemala, a Plan for the Division into Eight Prov- inces, With as Many More Provincial Deputies, Politi- cal Chiefs, Intendants and Bishops," which memorial, according to the records, was favorably received by the Cortes and referred to the Committees on Pro- vincial Deputations, Ecclesiastical Affairs and Finance. This very interesting memorial (Doc. No. 230) be- gins by saying : ''Guatemala, situated in Northern America, longitude from 282 degrees to 295 degrees, and latitude from 8 degrees to 17 degrees, has a length of 13 degrees, which makes 227 Castilian leagues of 17y2 to the degree ; and by road it is calculated at more than 700 leagues from Chi lillo, the end bordering with the Audiencia of J>^ Mexico, as far as Chiriqui, the frontier line of the jurisdiction of the Audiencia of Santa F-3 de Bogota. In width it is 9 degrees, from the southern territories of Costa Rica to the north- ern ones of Chiapa. * * * jt borders on the West with the Intendancy of Guaxaca; on the 162 East with the Province of Veragua, district of Tierra Firme and Santa Fe ; on the North with the Ocean and on the South with the Pacific. ' ' It then goes on to explain that "* * * throughout the extent of this Kingdom there is but one Audiencia, which sits in the capital of Guatemala, with its Captain General, who has a large number of subordinat-^ chiefs for the political and military administra- tion and Government of the fifteen provinces into which it is divided. " This number is made up of eight alcadias mayores, two Gorregimientos, the Government of Costa Rica and the Intendancies of Nicaragua, Chiapa, Comayagua de Honduras and San Salvador. It indicates the inconveniences of this division and suggests that eight provinces be created, each with its respective civil and ecclesiastical authorities. Of the Province of Costa Rica — the first of the eight — he speaks as follows : ''This city (of Cartago) is the capital of the province of Costa Rica, situated in the center, at 80 leagues from the frontier line of Nicaragua and as many more from that of Costa Firme, jurisdiction of Veragua, and at thirty leagues from the Port of Esparza on the South Sea, and at a like distance from that of Matina, on the Nortli Sea ; so that the total length is 160 leagues and the width 60. * * * In 1813, its Dep- uty in the Cortes endeavored to have it erected into a Bishopric * * * and this same effort was repeated in the present Cortes, asking for a Provincial Deputation * * * ; its better ad- ministration and government can only be at- 163 tained by means of a Provincial Deputation, Political Chief, Intendant, University, College and Bishop without canons." IV. THE INDEPENDENCE AND THE "UTI POSSI- DETIS." 1. Independence of the Provinces of Guatemala and New Granada. During this second constitutional period, Costa Rica was emancipated from the sovereignty of Spain. The news of the Spanish revolutionaiy movement of 1820, revived the insurrection of Mexico which had been suppressed; General Iturbide placed himself at its head and on February 24, 1821, put forth the mani- festo of Iguala (Doc. No. 243), proclaiming the inde- pendence of Mexico. Following this example, Guate- mala also declared itself independent of Spain, in Sep- tember, and Costa Rica, in October, of the same year (the governor then being Don Manuel de Caiias).. General Itiirbide caused himself to be proclaimed Emperor of Mexico, with the name of Augustin I, in May, 1822. The provinces of the old Captaincy-Gen- eral of Guatemala joined the new Mexican Empire; but on the dissolution of the latter, in March, 1823, they united and sent representatives to a constituent assembly which, in July of that year, ratified their independence from both Spain and Mexico. That as- sembly adopted the Constitution of the United Prov- inces of the Center of America, of November 22, 1824 (Doe. No. 254), thus forming a republican confedera 164 tion composed of five States: Guatemala, Salvador, Honduras, Nicaragua and Costa Rica, each of which had its own constitution. This confederation lasted for fourteen years, until the federal compact, having been broken by the con- gress of 1838, there were born the five republics that now bear those names, each with an entirely inde- pendent life. The insurrectionary movement of the provinces of the Viceroyalty of New Granada was distinct. It had its principal center in Santa Fe de Bogota which, in July, 1810, rose against the viceroy and attempted to form a confederation of those provinces. The move ment, however, failed of success until Bolivar, who had achieved the independence of Venezuela, placed him- self at its head. The Congress of Angostura (in Vene- zuela), of February 19, 1819, decreed the formation of the Republic of Colombia, with the provinces of Vene- zuela and New Granada. The Congress of Rosario de Cucuta approved the Constitution of this Republic on August 30, 1821. The Province of Panama, where the Viceroy, Sam- ano, was established, was proclaimed independent of Spain, in November, 1821, and agreed to cast in its lot with the Republic of Colombia. So, tliat, in November of 1821, the sovereignty of Sy)aiii ended in the two provinces of Costa Rica and Panama, bordering on the two viceroyalties and au- dieucias, each, on its emancipation, attaching itself to those provinces with which it had been united — Costa Rii'a with the Guatemala provinces; Panama with those of New Granada. 165 2. The Principle of Colonial **Uti Possidetis." ^'Uti possidetis" was the term used in the Roman law to designate the interdict of retention of possession which the praetor pronounced, in the interest of the holder of property, to protect him in his possession 80 long as he was not defeated in a trial of ownership, using a long phrase which was condensed into these words, "uti possidetis, ita possideatis;'* that is, **as ye possess, so may ye possess (so may ye continue possessing)." This term, "uti possidetis," having been adopted into international law, serves to designate the principle of *■ the conservation of the possessory status" in in- ternational relations. The principle of the "colonial uti possidetis" signifies the recognition of the posses- sory status in which the provinces or regions were found when they were colonies, and the continuity thereof after they had been emancipated and formed independent states. The importance of this principle may be easily un- derstood in the demarcation of the states that sprang into existence in America upon the cessation of Spain's sovereignty. Those states had no other history than that of the colonial period ; but during that period they had formed themselves into communities, with their own customs, traditions and social and administrative institutions that differentiated each from the others. It was but natural, therefore, that they should con- tinue to live as they had lived — ^in the same territories and undergoing no other change than that involved in the acquisition of sovereignty, or such changes as they might wish to establish in the exercise of such sov- ereignty. 166 All the territory of the Indies had been divided by the Sovereigns of Spain into viceroyalties, audiencias and governments of various classes, within the re- spective demarcations of which, those communities were formed, each with vast areas to be settled. The provinces emancipated themselves as best they could; those of one great circumscription united or passed voluntarily from one circumscription to another, or separated among themselves, and constituted them- selves into independent republics. When the common sovereign power was withdrawn, it became indispen- sably necessary to agree on a general principle of demarcation, since there was a universal desire to avoid the resort to force, and the principle adopted was the colonial uti possidetis; that is, the principle involving the preservation of the demarcations under the colonial regime corresponding to each of the co- lonial entities that was constituted as a state. Thus, also, it prevented the seizure by foreign nations of any of those vast unsettled territories. The principle of uti possidetis was introduced recip- rocally into the relations of the American republics of Spanish origin by the Treaty of Bogota, of 1811, en- tered into by the United Provinces of Venezuela and the United Provinces of New Granada ; in that instru ment they undertook to recognize and respect as the boundaries between those that pertained to the Cap- taincy-General and Viceroy alty bearing those names — a principle that was extended over the whole of Latin America. But if there was general accord in the acceptance of that principle, difficulties arose in its application, mainly concerning the character of the possessory status and the date to be taken, each republic insisting 167 upon what was most desirable for its own interests according to the situation in which it found itself. 3. Application of the Principle. Further exposition of this doctrine of the uti possi- detis, which pertains to the international law of Latin America, is unnecessary, since we address ourselves, in this opinion, to the colonial Spanish law; still we set forth the situation of Costa Rica in order to apply that principle. The fundamental law of the State of Costa Rica, of January 21, 1825 (Doc. No. 255) expressed perfectly the equation between its territory and that of the Spanish province of that name; it fixed its limits in the same way that they existed in fact and law, at the moment when the sovereignty of Spain came to an end. In its Art. 15 the law provided: **The territory of the State is now extended from West to East, from the River Salto, which divides it from Nicaragua, to the River CJiiriqui, the end of the Republic of Colombia ; and North- South from one Sea to the other, its limits being on the North at the mouth of the River San Juan and the Escudo de Veragua, and on the South at the outlet of the River Alvarado and that of Chiriqui." The expression **now,*' used in connection with Nicaragua, was adopted because the addition of Nicoya was expected, that province having manifested its desire to unite with Costa Rica ; and it was in fact so united by decree of the Federal Congress of the Republic of Central America of December 9 of the same year (Doc. No. 258). 168 That fundamental law of Costa Bica harmonizes with the law of territorial division of the Republic of Colombia, of June 25, 1824 (Doc. No. 251), which had respected the limits of the former State. Colombia divided her territory into twelve departments, subdi- vided into provinces composed of cantons. The De- partment of the Isthmus was made up of two prov- inces: That of Panama and that of Veragua. The Province of Veragua was divided into four cantons — Santiago de Veragua, Mesa, Alanje and Guaimi. All these cantons were located to the east of Costa Rica, including that of Guaymi which was another portion of the valley of that name, and had for its capital, the town of Remedies. A few days after this law was published, the Gov- ernment of Colombia issued the Decree of July 5, 1824 (Doc. No. 252), declaring illegal ''every enterprise which is undertaken to colonize any point of that por- tion of the Coast of Mosquitos from Cape Gracias a Dios, inclusive, toward the River Chagres, which be- longs to the Republic of Colombia, in virtue of the formal declaration made at San Lorenzo on November 30, 1803. ' ' It was sought by this action to give life to the Royal order relating to the Government of the Islands of San Andres, which had died still-born and to which no one had paid any attention during the co- lonial period; the nullity and inefficacy of that Royal order with respect to Costa Rica we have already dem- onstrated. And it must be observed that it was not taken into consideration in making the law of terri- torial division which was prepared and sanctioned at that time. On March 15, 1825 (Doc. No. 257), was signed in Bogota the treaty between the Republic of Colombia 169 and the Federal Eepublic of Central America of which the State of Costa Eica formed a part, and by which the latter republic bordered on the former. The par- ties mutually guaranteed the integrity of their respect- ive territories "as they existed naturally prior to the present war of independence," and obligated them- selves to respect their boundaries "as they now exist;" they also agreed to the reservation, "as soon as cir- cumstances will permit, to settle in a friendly manner the line of demarcation between the two states, or whenever one of the parties shall be disposed to enter on this negotiation." In the conferences held during the negotiation of that Treaty of 1825 the Minister of Foreign Eelations of Colombia, Don Pedro Gual, proposed a change in the existing boundaries based on the proposition to give effect to the Eoyal order of 1803. The Minister Pleni- potentiary of Central America, Don Pedro Molina, replied that he was without instructions on this point. "Well, then, responded Senor Gual, as to boundaries . t ^a^-*-^^ it is necessary to hold to the uti possidetis of 1810, or 1820, as may be desired. Senor Molina having acqui- esced, Senor Gual was charged with preparing the articles arranged at the time of making this project." It is thus set forth in the protocol of the conference be- tween the two representatives of March 4, 1825 (Doc. No. 256). From the foregoing it appears that both parties were agreed in recognizing, in 1824 and 1825 — three or four years after the independence — as the boundaries existing in fact between the Spanish Provinces of Costa Eica and Veragua at the moment of independence, the same boundaries which they promised to respect and mutually adhere to. The Colombian law of territorial yOi^ 170 division, of June 25, 1824, did not go beyond the bound- aries of Veragua; the fundamental law of Costa Rica of January 21, 1825, included from sea to sea, as far as the Escudo de Veragua and the Chiriqui {Vie jo) river ; and the Treaty of Bogota of May 15, 1825, pre- served the existing boundaries, without making the changes which the Minister of Colombia had claimed on the authority of the Royal order of 1803. The principle of uti possidetis, then, was accepted by common consent in the sense of preserving the pos- sessory status, Colombia declaring that whether the year 1810 or 1820 be adopted in connection with that status should be *'as it might be desired to understand it." This is easy enough to understand because the change proposed by Colombia not having been adopted, it was a matter of indifference which date should be selected, that possessory status being the same in both periods. But Colombia's ambition to extend herself into Central America, grew apace. Taking advantage, therefore, of the discord that prevailed among the States of the Federation, in 1836, she treated the ter- ritory of Bocas del Toro and all its islands as her own, and occupied them with force. To justify such ambi- tions and the acts that were committed in carrying them out, Colombia, resorted to the Royal order of San Lorenzo, of 1803, on the assumption that it con- stituted the uti possidetis de jure of 1810, and that under its sanction she was entitled to the dominion (which had pertained to the Viceroyalty of Sante Fe) over the Atlantic coast from Cape Gracias a Dios to- wards the Chagres river, including the Matina Coast. Colombia, therefore, interpreted the principle of uti possidetis in the sense of the preservation of the 171 right of ownership instead of that of possession; whereas, the fact is that that principle, as its name indicates, and in consonance with the interdict from which it is derived requires as an indispensable condi- tion *'the fact of being in possession." The right to property, unaccompanied by possession, may be ground for recovery, but never for the interdict of retention or the right to preserve possession that is lacking. The Eepublic of Colombia, by combatting the inter- pretation of the uti possidetis in the sense of preserva- tion of the possessory condition de facto, and alleging in favor of herself rights of ownership founded upon laws and Royal orders, recognizes that the Viceroyalty of Santa Fe had not been in possession of the territo- ries! which she has claimed as its heir. Colombia asks in the arbitration that the question of boundaries with Costa Rica be decided by the prin- ciple of uti possidetis de jure, asserting in her docu- ments that according to the Recopilacion de Indias the Government of Costa Rica must have belonged to that of Tierra Firme, by having been embraced within the Province of Veragua, which belonged to Tierra Firme, and that under the Royal order of 1803, the Govern- ment of the Mosquito Coast and that of the Atlantic coast of Costa Rica must have belonged to the Vice- royalty of Sante Fe. But she does not say that the Government of Tierra Firme had jurisdiction over Costa Rica subsequently to the creation of the Audi- encia of the Confines, or of Guatemala, nor did the Viceroyalty of Santa Fe exercise even partial control therein ; and she could not state this, since it is entirely contrary to the truth of history. The territory and boundaries possessed by Costa Rica at the moment of her emancipation, she held by 172 virtue of legal titles, having been definitively consti- tuted by her historic evolution as a province, and hav- ing lived continuously under that legal status sanc- tioned and confirmed by a long series of acts of juris- diction and sovereignty. That is why Costa Rica, although she understands that the uti possidetis cannot be conceived without possession, has accepted in this arbitration the so- called uti possidetis de jure, because she has in her favor the uti possidetis not only de jure, but de facto. The description of its territory, which the State of Costa Eica gave in Art. 15 of its fundamental law of January 21, 1825, accords with the descriptions we have given of the territory embraced therein in fact and law, when it was a Spanish province, to wit, from sea to sea, from Nicaragua to the Escudo de Veragua on the north and the mouth of the Chiriqui ( Vie jo ) on the south. Such was it possessory status when, on the 15th of March of the same year, in Bogota the treaty was signed by the Republic of Colombia and the Federal Republic of Central America; in that treaty the boundaries that ''then existed" were recog- nized, and the parties mutually guaranteed their re- spective territories. Colombia claims that the uti possidetis of all Spanish America refers to the year 1810, because it was then that the insurrectionary movement began which led to the Treaty of 1811. In that treaty the provinces of Venezuela and those of New Granada undertook to recognize and to respect as boundaries between them- selves those belonging to the captaincy-general and viceroyalty. But the principle of uti possidetis hav- ing been proclaimed to enable the new states to accept as boundaries those which their respective provinces 173 had possessed when they were emancipated and thus establish the continuity of possession, it could not be applied to all as of the same date, but as of the date of the emancipation of each province or region which became a state, for until their emancipation they con- tinued under the sovereignty of Spain who could freely dispose of them. The insurrectionary movement of 1810 was repressed by Spain, and this same Republic of Colombia was not born until December, 1819, nor was she definitively con- stituted as a sovereign state until August, 1821. The Province of Guatemala proclaimed itself independent on September 15, 1821 ; those of Costa Eica and Pan ama, in October and November of the same year. Therefore, if a common date be adopted for the uti possidetis of the provinces that figure in the question, of boundaries, it must be the year 1821. Costa Rica very properly insists on the uti posside- tis of 1821, although she would be under no disadvan- tage were that of 1810 adopted, for her possessory status as to boundaries was in fact and law, the same in one year as in the other. RESUME AND CONCLUSIONS. Summary. 1. Resume and General Conclusions of This Opinion. 2. Agreement Respecting the Legal Bases For the Determination of the Case. 3. Question of Territoriality. 4. Question of Delimitation : (a) Costa Rica's Evidence. (b) Colombia's Evidence. 174 (c) Special Consideration of the Boundaries of the Dukedom of Veragua. 5. Final Deductions. 1. Eesume and General Conclusions of This Opinion. We believe that we have demonstrated the three fol- lowing propositions, which constitute the three parts into which we have divided this work : 1. The Province of Costa Eica and that of Veragua were definitively established and marked out by the Crown in the XVIth Century, in the year 1537. 2. The Recopilacion de Indias respected and con- firmed the existence and demarcation of Costa Rica. 3. Costa Rica continued in the same legal status of differentiation from Veragua, from the publication of the Recopilacion down to the independence. These propositions are the synthetic resume and the general conclusions of our opinion. The clearness with which we think we have presented the facts and the law relating to each of these proposi- tions, by means of the appropriate headings and sum- maries, as also the categorical form used in the state- ment of our opinion upon each of the questions em- braced in each proposition, renders unnecessary a fuller resume or a more extensive statement of the conclusions of this opinion; we respectfully refer to the discussions of the points in the text. We shall, however, state our conclusions as to the results of the arguments made in the arbitral pro- ceedings on the three questions following, which are the very essence of the case — the legal basis for its detemiination, territoriality and the boundaries prop- erly so-called. 175 2. Agreement Respecting the Legal Bases For the Determination of the Case. We have just seen that both parties are agreed in accepting, as the legal basis for the determination of the case, the principle of the colonial uti possidetis, as of the year 1810, although Costa Rica holds, as do we, that it ought to apply to the year 1821. And we have also seen that Costa Rica finds no difficulty in admitting the application of this principle from the point of view of law {de jure), but it must be jointly with the fact of possession {de facto) ; for we consider that without possession the uti possidetis is incon- ceivable. Both parties are also agreed in recognizing as a legal basis what was provided by the Recopilacion de Indias and the Crown of Spain in the exercise of the legislative power. ' The difference of opinions consists in the fact that Colombia denies legal force to the demarcatory provisions prior to the Recopila- cion, conceding it to others which are subsequent, whilst Costa Rica maintains the contrary, according to the character of the acts under discussion. In our opinion the Recopilacion de Indias is really the axis of the jurisprudence with which we are con- cerned. The history of Spanish colonial law is di- vided into three periods : The law prior to the Recopi- lacion, that established by the Recopilacion and that siibKoqiioiit thereto. And to these three periods of that history" we have made the three parts of our opin- ion correspond. Of the law prior to the Recopilacion, not only that which, as Colombia assumes, is expressly re-enacted, is valid, but also that which is respected, confirmed or admitted as supplementary. Of the laws provided after the Recopilacion only those are valid 176 which conform to the laws in that compilation, or their amendments, under the conditions and procedure es- tablished by it. 3. Question of Territoriality. The legal criterion under which the case must be decided having been established, it is important to distinguish two questions which have been confused under the common designation of "question of bounda- ries:" That of territoriality and of delimitation; that is to say, the question of ownership of a determined territory (a geographical, political or administrative unit), and that of the marking out of the divisional line which separates it from another or several other ter- ritories. It clearly results from the argument in the arbitral proceedings, that Colombia does not treat the question of boundaries properly speaking, but that of territo- riality. Colombia denies the territoriality of Costr. Eica: first, entirely, on the authority of the Recopila- cion de Indias; and afterwards, partially, invoking the Royal order of 1803. In order to deny it entirely, she makes use of a geographical equivoque based upon the name of Veragua by taking for the "Province of Ver agua" the primitive Veragua. In order to deny that territoriality partially, she gives to the Mosquito Coast an extent it did not have. We cannot reconcile this method of attack to a pro- ceeding international in character, except on the theory that it is resorted to in pursuance of the time-worn maneuver of asking for ever5i;hing in order to obtain something ; for, were Colombia to succeed in producing the conviction that all the territory of the State of 177 Costa Rica ought to be adjudicated to her by virtue of old colonial rights, the Arbitrator could not, in de- termining a conflict of boundaries annul or almost annul the existence of a State which had been formed by the sovereignty of an emancipated people, which has been recognized in the integrity of its territory by the other State, and which voluntarily, in its own personality, has agreed with that other State upon an arbitration which is to the tracing of a divisionary line between their respective territories. It was fully proved in the arbitral proceeding that from the primitive Veragua were formed three dis- tinct provinces : the Province of Veragua (the only one that retained that name), constituted as such in 1560, with its governor and captain-general and having for its domain the territory of the Dukedom of Veragua; the Province of Costa Rica which began by embracing the whole of Royal Veragua, formed by virtue of the commission granted by Philip II to Cavallon, in 1561, and instituted as such province with its governor, captain-general, in 1565, and definitively organized by means of the Government of Artieda, in 1573-1574, upon the segregation of the territory situated to the north of the Desaguadero or San Juan river, and the Province of Teguzgalpa which was created, in 1576, out of the segregated territory that was called later the Mosquito Coast. It has been also demonstrated that the Province of Costa Rica and that of Veragua existed as distinct provinces, with their respective territories and with different governors, from the time of their defi.nitive constitution until the termination of the colonial pe- riod; and, furthermore, that each depended upon a different superior government — the Province of Costa 178 Rica upon the Viceroyalty of Mexico and Captaincy - General and Audiencia of Guatemala and the Province of Veragua upon the Viceroyalties of Peru and New Granada and Audiencias of Panama and Santa Fe. The Recopilacion de Indias, far from suppressing the Province of Costa Rica, as Colombia pretends, con- firmed its existence and mentioned it expressly as a distinct province from that of Veragua. The Province of Veragua, which the Recopilacion declares is em- braced in the Government of Tierra Firme, was the one that sprang from the dukedom; whereas, that of Costa Rica continued dependent upon the Audiencia of Guatemala, as it is also expressly provided in that code. Colombia contradicts her own argument of the legal non-existence of the Province of Costa Rica, when she alleges that the Royal order of San Lorenzo, of No- vember 20, 1803, segregated from the Superior Gov- ernment of Guatemala the Atlantic part of Costa Rica as embraced in the Mosquito Coast, in order to add it to the Viceroyalty of Santa Fe; for this is equivalent to recognizing that Costa Rica legally existed without belonging to the Viceroyalty of Santa Fe, and that only that portion passed into dependency upon it, the rest remaining under the jurisdiction of Guatemala. It has been proved that the Royal order of 1803 did not refer to Costa Rica, since the latter did not form a part of the Mosquito Coast ; that the order had only a military and transitory character; that it could not change the laws of territorial division, and that it was inefficacious, contradicted and abrogated. The Spanish Province of Costa Rica, emancipated in 1821, brought to the Federal Republic of Central America (which it formed with the other provinces of 179 the Old Kingdom of Guatemala) the very same terri- tory that it had, in fact and in law, as such Spanish province, and with that same territory belonging to the State of Costa Rica, the Republic of Central America was recognized by the Colombian Government in the Treaty of 1825. 4. Question of Delimitation, (a) Costa Rica's Evidence. The Republic of Costa Rica, as appears in Art. 2 of the Convention of January 20, 1886, has claimed in the arbitration as the line dividing her territory from that of Colombia: on the Atlantic side, the line indi- cated by the Island of Escudo de Veragua and the Chiriqui (Calobebora) river, inclusive; and on the Pacific side, the Chiriqui Vie jo river, inclusive, to the east of Punta Burica. That line is the one fijxed by the fundamental law of the State of Costa Rica of January 21, 1825, and with which the Republic of Central America was recognized by Colombia in the Treaty of May 15 of the same year. And that same line is the one which separated the Province of Costa Rica from that of Veragua under the colonial regime, being also the divisionary line of the viceroyal- ties and the bordering audiencias. The legality of this delimitation is based upon Law 1, title 1, book V, of the Recopilacion de Indias (Doc. No. 131) ; in that law, enacted by Carlos II when that code was published, it was ordered that the viceroys, audiencias, governors and alcaldes mayores should keep and respect the boundaries of their jurisdictions "as they may be fixed by the Laws of this book, the Titles of their offices, the Provisions of the Superior 180 Government of the Province, or by use and custom legitimately introduced. ' ' The Republic of Costa Rica has fully proved in the litigation that from the demarcation of the province of that name, made in Artieda 's capitulacion of 1573, and his title of governor, granted in 1574, the boun- daries of that province were the line of the Island of the Escudo de Veragua and that of the Chiriqui (Calobebora) river, on the Atlantic side, and the Chiriqui Viejo river (or rather, the Valleys of the Chiriqui, inclusive), on the Pacific side, and therefore existed at the time of the publication of the Recopila- cion de Indias, as shown by the acts of sovereignty exercised by the monarchs, the titles of the offices of the governors, the provisions of the superior govern- ment of the provinces, and the rights based on custom. The laws of the Recopilacion did not establish any different boundaries; and in respecting all the Royal cedulas which were not in contradiction therewith, the Royal cedulas demarcatory of boundaries remained in force without denying efficacy to the capitulaciones, the validity of which was recognized in so far as they were not in contradiction with the laws of the Recopi- lacion, those capitulaciones being considered, taken to- gether, as a system .governing discovery, settlement, pacification and government of the territories of the Indies. As a result of the creation of the Viceroyalty of New Granada, and the incorporation of the Audiencia of Panama in the Audiencia of Santa Fe, the proof of the boundaries of the Province of Costa Rica is strengthened with the descriptions of the boundaries of that viceroyalty and of the audiencia that reached 181 as far as that province, harmonizing with all the ante- cedents from the demarcation assigned to Artieda. This is shown from the ''Description of the King- dom of Tierra Firme," by the Comandante general of Panama, Don Antonio Guill, in 1760; from the "De- scription of the Viceroyalty of Santa Fe, ' ' by its Vice- roy, the Marquis de la Vega de Armijo, in 1772; from the "Eeport" by the Governor of Veragua, Don Felix Francisco Bejarano, in 1775; from the "Descriptions of the Viceroyalty of Santa Fe, of Tierra Firme and of Veragua," in the most interesting work relating to southern America, by the missionary, Sobreviela, in 1796, and by the "Official Communication" of the Governor of the Islands of San Andres, Don Tomas O'Neille, inl802. The boundaries of the Province of Costa Eica con- tinued unchanged in the last years of the Spanish sov- ereignty, for it has been shown by official documents that that province continued to embrace the territory from sea to sea, including the Matina Coast and the region of Talamanca, and that the Royal order of 1803 produced no change whatever in the traditional de- marcation. Colombia recognized Costa Rica to be in possession of boundaries, the extreme points of which were the Island of the Escudo de Veragua and the mouth of the Chiriqui Viejo river, by the uti possidetis of the Treaty of 1825, and by the fact that, at the moment of the emancipation, she immediately set up against this uti possidetis de facto the uti possidetis de jure, as though Costa Rica possessed s»ch limits without au- thority of law. It has been demonstrated that Costa Rica has in her favor, not only the uti possidetis d& 182 facto, but the uti possidetis de jure, based upon the Recopilacion de Indias and the provisions which the latter respected or confirmed, or which were issued in accordance therewith. (5) Colombia's Evidence. The abundant proof submitted by the Republic of Costa Rica as to her boundaries presents a strong con- trast to the almost complete lack of evidence on the part of Colombia; because, as we have said, she does not occupy herself with the question properly of boun- daries, but with the territoriality. As appears in Art. 2 of the Convention of 1886, the Republic of Colombia has claimed in the arbitration, as her territorial limit : on the Atlantic side, as far as Cape Gracias a Dios, inclusive ; and on the Pacific side, to the mouth of the Golfito river in Dulce Gulf. To claim from Dulce Gulf in the Pacific to Cape Gracias a T>ios in the Atlantic, is not only equivalent to asking for all the territory included between the said Gulf, the Chiriqui Vie jo river, the Escudo de Veragua and the Culebras river, but also for the whole Atlantic coast of Costa Rica and Nicaragua, and Colombia ex- posed herself, besides, when attempting to unite the two extreme points of her claim, to invade Costa Rican territories not included in the boundary dispute, as she effectively did in the demand presented to the French Arbitrator. It is true that Colombia has left out the rights of third parties, and therefore of Nicaragua, stopping at the Desaguadero, or San Juan river, the boundary between Nicaragua and Costa Rica. But in her eagerness to justify her right as far as Cape Gra- cias a Dios or the Desaguadero, she has failed to prove 183 her boundaries with Costa Rica, by creating herself mistress of the whole of primitive Veragua. When Colombia invokes the Royal ' order of San Lorenzo of 1803, to maintain her point that the At- lantic portion of Costa Rica had bieen incorporated to the Viceroyalty of Santa Fe — whereby she recog- nized that the portion on the Pacific side continued separated from that viceroyalty — it would seem that she was under obligation to fix the divisionary line between one portion and the other, but she never has done so, forgetting doubtless, that this Royal order did not establish such divisionary line, because not demar catory of boundaries. So that Colombia has been left in this arbitral pro- ceeding in the same situation as would be the owner of a piece of property who, in litigating with an adjoin- ing owner, refused to prove the divisionary line be- tween two properties, on the ground that both belonged to him ; and the Arbitrator will be found in the situa- tion in which the judge would be left, who, holding the X ownerships to be distinct, and unable to recast them into a single one, had to mark out the properties in face of the fact that one of the holders had proved his divisionary line, whilst the other had not. A judge placed in such a position might perhaps be perplexed to decide a question of boundaries, properly speaking, through fear of being unduly inclined on the side of the one who presented the proof. But that fear cannot exist in the present case, for two reasons: (1) because Colombia has discussed the evidence of Costa Rica under conditions even more advantageous, since she presented a third brief and a summary of conclu- sions in the arbitral proceedings, of which brief and summary Costa Rica had no notice except by the Award 184 and was therefore imable to refute them; and (2) because Colombia, although she may not have made direct proof of her divisionary line, offered indirectly a most valuable proof in the very title which she al- leges as the basis of her rights and which may be used to take bearings from in order to decide with more assurance: we refer to the proof of the limits of the Dukedom of Veragua. (c) Special Consideration of the Boundaries of the Dukedom of Veragua. Those boundaries are established by the Royal cedula of Carlos V of March 2, 1537, which is cited by Law 9, title 1, book V, of the Recopilacion de Indias as a precedent for its text, in order to indicate, in our opinion, the origin of the Province of Veragua. Colombia maintains that when that law declared that the whole Province of Veragua should belong to the C>ov«rnment of Tierra Firme, it referred to the primitive Veragua, in which Costa Eica was embraced. Costa Rica aflBrms that the law referred to the Prov- ince of Veragua as it was constituted at the time of the publication of the Recopilacion de Indias, in 1680, and maintains that that province is the Dukedom of Veragua. And having proved that Panama cannot claim any other province of Veragua than the one arising out of the dukedom, she must resign herself to defending, as boundaries of this province, those which Colombia has recognized as limits of the dukedom by invoking the Royal cedula of 1537. According to that Royal cedula, the divisionary line between Panama and Costa Rica would be the straight Line from the west side of the square of 25 leagues, 185 opposed to that which might be traced npon the mer- idian of the Belen river (inclusive), embraced be- tween the parallels of the extremes and at a distance of 25 leagues. The meridian corresponding to the mouth of the Belen river, being that of 80° 51' west of Greenwich, and the mouth being on the parallel of 8° 54', that divisionary line, at the distance of 25 leagues, would be indicated by the meridian of 82° 6', starting from the same parallel in the southern direction, and counting by 20 leagues to the degree. If the league is counted at the rate of 261^ to the degree, that divisionary line would recede toward Panama, the leagues being smaller. If the league is counted at the rate of 17V2 to the degree, the divisionary line would advance upon Costa Rica, the leagues being longer, in which case (and the most favorable one for Panama) the dukedom would not extend beyond the meridian of 82° 15' 42" west of Greenwich, starting from the same parallel of 8' 54".^ Costa Rica, in designating the position of the mouth of the Belen river has made use of the most recent and exact maps of the English Admiralty Office, officially adopted by the Government of Panama, as may be seen even in the ''Map of the Republic of Panama, pre- pared by Don Ramon M. Valdes and Don Andres Vil- larreal for the text of the Geography adopted by the Government of Panama," and published after the * This point is resolved by an unquestionable document furnished by Panama itself. We refer to the "Mapa de la Repiiblica de Panama" published in 1910 by Don Ramon M. Valdes. On this map are very clearly traced the limits of the ancient Dukedom of Veragua and the divisional line with Costa Rica is indicated by the meridian 81° 58' 03" west of Greenwich, 186 Award of M. Loubet, and in which that point is fixed at 80° 50' 40" from Greenwich. Against the rational geographic proof of Costa Rica on this point, Colombia alleged that this should not be the position of the Belen river because a settlement of that name appears much further to the west in a map drawn by Diego Ribero in 1529; but even this argu- ment becomes futile if the map of Diego Ribero, cited by Colombia is examined without prejudice and as it was found in the library of the Grand Duke of "Weimar. Ribera did not trace the Belen river, and in his map this name is applied to a place or vast area of water, which may well be estimated at 25 leagues to the east of Zorobaro, if there is taken into account the de- fective and diminutive scale of the Carta Universal (Universal Chart ).2 And even though no map were in existence, that distance of 25 leagues from the Bay of Zorobaro, which results from the account of the voyage of Co- lumbus, and which the Council of the Indies must have taken into account in laying out the dukedom, would always be a very important factor. It is not our purpose to enter into a technical dis- cussion as to whether the Spanish leagues of the XVIth century were of 26i/^ to the degree, as Jorge Juan believed, or 17V2> as was maintained by the illustrious General of the Armada, Don Pelayo Alcala Galiano, in his *' Considerations Concerning Santa Cruz de Mar Pequena," of 1879, based among other data, on the fact that the league of Burgos was the one adopted in the Conferences of Badajoz concerning the demarca- "The learned commentary of J. G. Kohl upon the Carta Universal of Diego Ribero shows the error of Colombia, Vide : "The Two Old- est Maps of America, etc.," by J. G. Kohl, Weimar, 1860. 187 tion of the Spanish and Portuguese dominions in 1524, as pointed out by Humboldt. It is enough for us to repeat that even accepting the league of 17^ to the degree, the divisionary line of the dukedom would not penetrate into Costa Eica further than 82° 15' 42". Comparing now the divisionary line asked for by Costa Eica in the arbitration with that of the dukedom, the result is : that on the north side it goes beyond that of the dukedom, and reaches that of the Escudo de Veragua and of the Chiriqui or Calobebora river (meridian 81° 34' of longitude west of Greenwich) ; whilst on the south side, it does not reach the line of the dukedom, but remains at the mouth of the Chiriqui Viejo (meridian 82° 44'). The difference between the advance and the backward movement is divided equally by the meridian of 82° 9', which only differs by three minutes to the west from that corresponding to the line of the dukedom, counting the leagues at the rate of 20 to the degree. That is to say, that the advance is compensated by the retrogression. Whatever may be the divisionary meridian of the dukedom, Costa Eica enters into the Bay of Almirante or Lagoon of Chiriqui: on its western side, if the leagues are counted at the rate of 17i/^ to the degree ; at its centre, if at the rate of 20; and on its eastern side, if at the rate of 26i/2- In any event, there would always belong to Costa Eica all of that bay, with its coast and the Valiente Peninsula, under the mathe- matical demarcation of the dukedom, by being on the north of the square which encloses the parallel of 8° 54' common to all the meridians determined by different lengths of leagues. Colombia, by presenting as a justifying title for her rights the Eoyal cedula of Carlos V of 1537, which 188 establishes the demarcation of the dukedom, proves her conformity with the boundaries of the latter, which are mathematical and refer concretely to geographical points and distances, and therefore offer the assurance of not going astray in the cognizance of the localities and the estimation of the facts that are connected therewith. Costa Rica has demonstrated that this Dukedom of Veragua was converted into the Province of Veragua, and even when for this reason it would seem that she ought to have claimed as the divisionary line that of the dukedom, she did not do so, but confined herself strictly to the legal and historical reality that, from the time of Artieda (1573) to the independence (1821), was the line she has asked for, that reality having been the one recognized by the Recopilacion de Indias and the principle of the colonial uti possidetis. By accepting the straight line of the dukedom, Costa Rica would lose, on the north, the territory in which Artieda founded the city bearing his name and almost the whole of the Valleys of Guaymi, of which he took possession, as governor of the province, with perfect right recognized by the King. In exchange, Costa Rica would gain, on the south, the territory embraced be- tween the Chiriqui Vie jo river and the line of the dukedom, enlarging herself by the Valleys of Chiriqui, to which she also had a right by virtue of the Royal cedula of 1573. Costa Rica could aspire to gain without losing, by claiming all the Valleys of Chiriqui under that Royal cedula, but she has not gone beyond the Chiriqui Viejo river, to follovv- the historic reality, for she con- siders that the Governors of Costa Rica abandoned the 189 valleys on the other side of that river to the intrusions of the Province of Veragua. 5. Final Deductions. The following deductions are drawn from all that has been stated, concerning the general questions in which the case is synthetized : 1. That both of the Parties litigant are agreed in accepting as legal bases for the determination of this case the Becopilacion de Indias and the principle of the colonial uti possidetis. 2. That Colombia has swallowed up the question of boundaries in that of territoriality, denying even the legal existence of the Province of Costa Rica, which was definitively constituted in 1573 and with the same territory that it kept when it was recognized by the Becopilacion (1680) and when it was emancipated from Spain (1821). 3. That Costa Rica has fully proved that the bounda- ries which separated her from the old Province of Veragua, when it was emancipated, were the same which she possessed when her domain was marked out by the Royal cedula of 1573 and which were confirmed by the Becopilacion. 4. That Colombia, by claiming an enormous part of the territory of Costa Rica, has not undertaken to prove the boundaries of the Province of Veragua with that of Costa Rica, but by invoking as the title of her right the Royal cedula of March 2, 1537, which estab- lished the boundaries of the Dukedom of Veragua, she recognizes the boundaries of that dukedom, which is the Province of Veragua. 190 5. That the whole case between Colombia, or Pan- ama, and Costa Rica, reduces itself to the question whether there is to be fixed as the divisionary line that of the dukedom, as the said Royal cedula mathemati- cally determines it, or the line claimed by Costa Rica, which is the one that she has held in fact and law from her administrative constitution as a Spanish province until her political organization as a sovereign State. The undersigned counsel have the honor to submit the foregoing opinion in response to the questions proposed to them by the Government of the Republic of Costa Rica. Segismundo Mobet y Pbendeegast. Vicente Santamabia de Pabedes. Madrid, August 31, 1911.