YALE UNIVERSITY
LIBRARY

Gift of the
Institute of
International Studies

A STUDY

QUESTION OF BOUNDARIES

BETWEEN THE

REPUBLICS OF PERU AND ECUADOR

DON VICENTE SANTAMARIA DE PAREDES
Ex-Minister of Public Instruction,
Senator for Life, Professor and Ex-Dean o." the Faculty of Law in the Central University
of the Royal Academies of History and Moral and Political Sciences.

Translated by
HARRY WESTON VAN DYKE
Member of the Bar of (he United States Supreme Court and of the
Supreme Court of the Philippine Islands
Washington, D; C.

PRESS OF BYRON S. ADAMS
WASHINGTON, D. C.
1 g i o

A STUDY

QUESTION OF BOUNDARIES

BETWEEN THE

REPUBLICS OF PERU AND ECUADOR

INTRODUCTION.

At the request of His Excellency, Sr. D. Felipe de Osma, Envoy
Extraordinary and Minister Plenipotentiary of Peru at this Court
(Madrid), that I examine and report upon the question of boun
daries between the Republics of Peru and Ecuador, submitted to
the arbitration of His Majesty, the King of Spain, I have prepared
this work, dividing it into two parts: General Part, antecedents
and history of the case, and Special Part, a consideration of the
diverse questions embraced therein.
The purpose of the General Part is to facilitate the reader
in his study of the problem and offer a guide to all the data and
events, in their chronological order, that must be considered to
enable him to form a general idea of the affair, and to perceive the
historical connection of the different facts set forth and the relation
of certain of the questions to each other.
That part begins with an exposition of the former Spanish
colonial regime or governmental system in America, which, being
constantly alluded to, it is well fully to understand before entering
upon the domain of its application. Then follows an historical re
view of the insurrectionary movement and of the formation of the
Spanish-American States, which it is important to present with the
greatest clearness because of the confusion with which those events
usually recall themselves — occurring, as they did, simultaneously, in
so many localities — and also because they were the origin of the
so-called "Spanish-American public law," the basis upon which the
question must be resolved. I prefer to relate them at the outset,
to the end that there shall afterwards be no interruption in the
examination of the various aspects of the problem, and because it
will permit, besides, their appreciation in conjunction with each other
unprejudiced by any criteria whatever.

Of those States were born those of Colombia and Peru, and, on
the dissolution of the Republic of Colombia, Ecuador came into
being, when Peru had already been in existence almost ten years.
And, without entering into details respecting their formation, which
1 shall reserve, because of their importance, for a more opportune
place, I pass to an explanation of the origin and historical develop
ment of the question of boundaries existing primarily between Peru
and Colombia, and later between Peru and Ecuador, concluding with
the history of the arbitration from its inception, in 1887, down to
the present moment.
I subdivide the Special Part, devoted to an examination
of the diverse questions comprehended in the general question
of boundaries, into two sections, which respectively treat of what I
designate as intercolonial boundaries and international boundaries,
in order to distinguish between those separating the ancient
circumscriptions of the colonial regime, as prescribed by the Spanish
law, and those which separate, or ought to separate, the modern
States in accordance with international law.
Under the title intercolonial boundaries, I consider, first, what
were the territories and general boundary lines of the Viceroyalties
of Peru and New Granada, and then, separately, and with all
necessary detail, those of the Comandancia general of Maynas (that
is, the region of the Amazonas) and of Jaen, Guayaquil, Piura and
Tumbes, examining the question in its various aspects — juridical,
geographical and historical — confining myself to the colonial regime,
and independently of any solution afforded by international law con
cerning the question whether those international boundaries should,
or should not, be, in whole or part, the same as the intercolonial.
In any event, it is clear that the international question is formu
lated in the light of a geographical, historical and legal knowledge
concerning the Spanish dominions within which are located the
contending States.
The question in the second section being founded in international
law, I proceed to examine into its solution by applying to the
treaties and conventions entered into or proposed between Peru
and Colombia and Ecuador, the doctrine of international law par
ticularly relating to Spanish America, and that established by the
Arbitration. In the carrying out of this plan, I have sought for my work, in
default of other qualities, the order and clearness that are so

essential in the exposition and examination of questions of this
nature, always so complicated because of their variety of aspect
and the multitude of facts involved, avoiding vagueness and giving
attention to documentary proofs of which I furnish a detailed
analysis.1

1In order to simplify the citations, I have adopted the following abbre
viations: B. P. — Brief for Peru (Alegato del Peru), by Sr. Pardo y Barreda.
M. P. — Memorial of Peru {Memoria del Peru), by Sres. Cornejo and Osma.
D. B. P. — Documents attached to the Brief for Peru, indicating the number
of the document or page of the corresponding volume.
D. M. P. — Documents attached to the Memorial of Peru with the same
arrangement.

GENERAL PART
ANTECEDENTS AND HISTORY OF THE CASE

GENERAL PART

ANTECEDENTS AND HISTORY OF THE CASE

CHAPTER I.
The Ancient Colonies of Spain.
Summary:
I. The system of territorial division established by the laws of the Indies.
II. Organization of colonial government in the XVIIth century. — 1.
Audiencias, gobiernos and corregimientos of New Spain and
Peru. — 2. The system of audiencias. — 3. The government exer
cised by the Viceroy of Peru in the audiencia districts.
III. Organic reforms of the XVIIIth century. — 1. Viceroyalties of Santa
Fe and Buenos Aires; captaincies-general of Venezueli and
Chile. — 2. The establishment of new audiencias. — 3. The creation
of intendencias de provincia.
IV. Great circumscriptions or bounds existing at the beginning of the
XlXth century.
§1. System of Territorial Division Es
tablished by the Laws of the Indies.
The Compilation of Laws of the Kingdoms of the Indies, framed
in the time of Philip IV and published by Charles II in 1680, shows
the system of territorial division followed by Spain in the civil,
ecclesiastical and military organization of her vast dominions in
America, from the period when she commenced to systematize the
newly discovered countries until the consolidation of her govern
ment' by the promulgation of that most notable Code.

The original basis of that organization was the division of the
American territories made by the Emperor Charles V in 1542, be
tween two great Viceroyalties which he created, one in Mexico
and the other in Peru, names which synthetize the conquests of
Spain. "We order and decree," says Law 1, Title 3, Book III, of
the Compilation, "that the Kingdoms of Peru and New Spain
(Mexico) be ruled over and governed by the Viceroys who repre
sent our royal person, who shall exercise superior power, do and
admink tr justice equally to all our subjects and vassals, and apply
themselves to all that will promote the tranquillity, repose, ennoble
ment and pacification of those provinces * * *"
The Viceroyalties were divided into royal audiencias,2 considered
as "major provinces," which embraced the gobernaciones,3 the
alcaldias mayores,* the corregimientos5 and the alcaldias ordinarias,8
provided for in Law 7, Title 2, Book II; Law 1, Title 15, of the
same Book, and Law 1, Title 1, Book V.
In harmony with this civil division, Law 7, Title 2, Book II, above
cited, prescribes that there shall be also an ecclesiastical division of
the territory into archbishoprics, religious provinces, suffragan
bishoprics, parishes and curateships, providing that both divisions
shall conform and correspond: that is, the archbishoprics and re
ligious provinces with the audiencia districts, the bishoprics with
the gobernaciones and alcaldias mayores, and the parishes and
curateships with the corregimientos and alcaldias ordinarias.
The civil division was not, however, uniform. Viceroys gov
erned the greater provinces, that is to say, the territories of the

2The Audiencia was a superior judicial tribunal, which, in addition under
the andent colonial regime, was a governing body exercising administrative
functions and having civil jurisdiction over one or more provinces; also the
name given to the territory over which its jurisdiction extended (Diccionario
razonado de Legislacion y Jurisprudencia, by Escriche). — Translator.
3The names Gobernacion and Gobierno are used interchangeably through
out this work to denote the civil, as distinguished from the military, branch
of the colonial governmental entities lesser in extent than the audiencias. —
Translator. *The Alcaldia mayor, as referred to herein, was the jurisdiction of the
Alcalde mayor, who, as mayor, governed a town of lesser importance than
the capital of. a province. Though not necessarily a lawyer, he exercised
judicial functions similar to those of a justice of the peace (Escriche). —
Translator. 5The Corregimiento was the district governed by a Corregidor, a correc
tional magistrate, who, in colonial times, exercised administrative functions
over a district (Escriche) . — Translator.
6The Alcaldia ordinaria, or jurisdiction of the Alcalde ordinario, was simi
lar to the alcaldia mayor, but of lesser extent (Escriche). — Translator.

audiencias (also called "audiencia districts"). But, as is explained
in Law 1, Title 1, Book V, special governors were at times appointed
over minor provinces because located at considerable distances from
the capitals of the audiencias ; and, in other localities, because of the
quality of the soil, and their location not appearing convenient
for the establishment of heads of provinces or for the appointment
of governors, corregidores and alcaldes mayores were appointed
for the government of the cities and their subdivisions.
In accordance with Law 3, Title 3, Book III, the viceroys were
captains-general of the provinces in their districts; but captaincies-
general were also formed for certain determinate territories, whether
audiencias or not. These possessed, in greater or less degree, the
attributes of government and bore distinct relations of subordination
to the Viceroys.
The Viceroys were presidents pf the audiencias at the capitals
of their Viceroyalties, the other audiencias being presided over by
the captains-general, or persons called "presidents togados"
(gowned presidents).
From that system of territorial division sprang the terms Vice-
royalties, Captaincies-general and Presidencies, to designate the
different constituents composing the colonial empire of Spain,
and which afterwards formed independent States, although with
certain variations effected by the towns that united or separated
upon their emancipation
§11. Organization of the Colonial Gov
ernment in the XVIIth Century.
i) Audiencias, Gobiernos and Corregimientos of New Spain
and Peru. — The Kings of Spain reserved to themselves the right
directly to fill the offices of viceroy, captain-general, president
and associate judge of the audiencias and prescribe the juris
diction and scope thereof and of the most important gobiernos,
corregimientos and alcaldias mayores, these being specified in de
tail in Law 1, Title 2, Book V, decreed by Charles II at the time of
the publication of the Compilation, which we should accept as
authority as to the manner in which the colonial government of
Spain was organized in 1680 in relation to the territory.
Those offices are classified by that law in two groups: "Peru"
and "New Spain."

10
A) Under the denomination "New Spain," that is, Mexico, are
included, by virtue of an ancient order, the four Royal Audiencias
of Santo Domingo (1526), Mexico fl527), Guatemala (1543) and
Guadalajara (1548). The order provides that —
a) In the district of the Audiencia of Santo Domingo de la Isla
Espanola shall be located the seat of the Governor, Captain-General
and President of that Audiencia, the seat of the Alcalde Mayor of
the country inland, that of the Governor and Captain-General of the
Island of Cuba and City of San Cristobal de la Habana, that of the
Governor and Military Captain of Santiago de Cuba, that of the
Governor and Captain-General of the Province of Venezuela, that of
Governor and Captain-General of the Province of Cumana, and that
of the Governor of Margarita.
b) In the district of the Audiencia of Mexico: the seat of the
Viceroy-Governor and Captain-General of New Spain (Mexico)
and President of that audiencia, the Corregimiento of the City of
Mexico, the seat of the Governor and Captain-General of the
Province of Yucatan, that of Castellano, the Alcalde Mayor and
Military Captain of the castle of Acapulco, the Alcadias mayores of
Tabasco, Tacuba and Montepeque and the Corregimiento of Vera
cruz. c) In the district of the Audiencia of Guatemala: the seat of the
Governor, Captain-General and President of that audiencia, those
of the Governors and Captains-General of Comayagua, Hon
duras and Costa Rica, those of the Governors of Nicaragua and
Soconusco and the Alcaldes mayores of Verapaz, Chiapa, Nicoya,
Sonsonate, Zapotilan, San Salvador and Minas de Honduras.
d) In the district of the Audiencia of Guadalajara: the seat of
the Governor and President of that audiencia, the Gobierno and
Captaincy-General of Nueva Vizcaya and the Corregimiento of
Zacatecas. B) Under the name of Peru, the law of Charles II, by virtue
also of an ancient order, comprehends the seven Royal Audiencias
of Panama (1535), Lima (1542), Santa Fe de Bogota (1549),
Charcas (1559), Quito (1563), Chile (1609) and Buenos Aires
'(1661), and provides that —
a) In the district of the Audiencia of Panama shall be located
the seat of the Governor and Captain-General of the Province of
Tierra Firme and President of that audiencia, the seat of the
Governor and Captain-General of the Province of Veragua, the

11
Gobierno of the Island of Santa Catalina and the Alcaldia mayor of
the City of San Felipe de Portobelo.
b) In the district of the Audiencia of Lima: the seat of the
Viceroy, Governor and Captain-General of the Kingdom of Peru
and President of that audiencia, the Corregimientos of Cuzco, Caja-
marca, Santiago de Miraflores de Zana and villages of Chiclayo,
San Marcos de Arica, Collaguas, Andes de Cuzco, the towns of lea,
Arequipa, Guamanga, the city of San Miguel de Piura and ports of
Paita (a single corregimiento) and Castro- Vir reina.
c) In the district of the Audiencia of Santa Fe: the seat of the
Governor and Captain-General of the New Kingdom of Granada
and President of that audiencia, those of the Governors, Captains-
General of the Provinces of Cartagena, Santa Marta, Merida and
Lagrita and of Trinidad and Guayana, the Gobierno of Antioquia,
the Corregimientos of Tocaima and Vague, of the cities of Tunja
and Los Musos.
d) In the district of the Audiencia of Char cos (upper Peru, now
Bolivia) : the seat of the President of that audiencia in his capacity
of gowned judge {en ministro togado), the Governor and Captain-
General of Santa Cruz de la Sierra, the Gobierno of Chucuito, the
Corregimientos of Potosi, La Paz and San Felipe de Austria and
the Minas de Oruro, and the Alcaldia mayor of the Minas de Potosi.
e) In the district of the Audiencia of San Francisco de Quito
(now Ecuador) : the seat of the President of that audiencia in his
capacity of gowned judge, the Gobiernos of Popayan (part of this
gobierno belongs to the Audiencia of Santa Fe), the Governors
of Quijos, Jaen de Bracamoros and Cuenca, the Corregimientos of
Quito, and the cities of Loja and Zamora and the Minas de
Zaruma, and that of Guayaquil.
f) In the district of the Audiencia of Chile: the seat of the Gov
ernor and Captain-General and President of the audiencia, and that
of the Inspector-General of the army and prisons of that province.
g) In the district of the Audiencia of Trinidad and Port of
Buenos Aires: the seat of the Governor and Captain-General of
the Provinces of the Rio de la Plata and the President of that
audiencia, the Gobierno and Captaincy-general of the Provinces of
Paraguay, and the Gobierno of Tucuman.
As will be seen, therefore, all Spanish-American territories are
classified by this law of 1680 in the two great groups of New Spain
and Peru — that is to say, the Viceroyalties of those names — and

12
subdivided into audiencia districts, each of which comprises various
minor gobiernos, corregimientos and alcaldias mayores.
2) The System of Audiencias  The division into audiencias
was not merely judicial, but general in character and well defined.
Law 1, Title 15, Book II, of Philip IV, shows that, throughout the
kingdoms and seigniories of the Indies up to that time discovered,
there had been established twelve- royal audiencias and chancelleries
(the eleven mentioned and that of Manila) "in order that our vassals
may be provided with those who will direct and govern them in
peace and justice, and their districts have been divided into gobier
nos, corregimientos and alcaldias mayores, which are subordinated
to the royal audiencias * * *" and the boundaries' of each of
those districts are prescribed in this same Title.
The Emperor Charles V, creator of the two Viceroyalties of New
Spain and Peru, was also the monarch who created the four Audien
cias of New Spain and the first three established in Peru (Panama,
Lima and Santa Fe), their number being completed with the crea
tion by Philip II of the Audiencias of Charcas and Quito, by Philip
III of that of Chile, and by Philip IV of that of Buenos Aires.
By virtue of the above-mentioned law, which also prescribes the
duties of these officers, the heads of the audiencia district of New
Spain were: for that of Mexico, its own Viceroy, Captain-General,
Governor and President; for that of Guadalajara, a Governor-
President, and for those of Santo Domingo and Guatemala, the
Captains-General, with powers of governor and president.
As to the districts of the audiencias of Peru, the heads were : for
that of Lima, its own Viceroy, Governor and Captain-General of
Peru, and President of that audiencia ; for those of Quito and Char
cas, gowned judges; for those of Panama, Santa Fe, Chile and
Buenos Aires, Captains-General, with powers of governor and presi
dent. 3) Government Exercised by the Viceroy of Peru in the Au
diencia Districts. — The governing powers of the Viceroys of Peru
with respect to the audiencia districts were diverse.
Philip II, in 1566. and 1567, conferred upon them the "authority
and capacity, in themselves alone, to possess and exercise the execu
tive power" in the audiencia districts of Lima, Charcas and Quito
(Law 6, Title 3, Book III), although declaring, in 1568, that the
presidents of Quito and La Plata (Charcas) could exercise powers
of government in certain cases (Law 5, Title 1, Book V).

13
On the framing of the Compilation, Philip IV established the
principle that the Viceroys possessed superior powers of govern
ment over the Audiencia districts of Lima, La Plata, Quito, Panama
and Chile (Law 1, Title 16, Book II). With respect to Panama,
he decreed that the President-Governor and Captain-General be
instructed that he must obey the Viceroy and execute orders given
by him in matters of government, war and finance, as his superior
officer (Law 2, Title 1, Book V) ; and, as to Chile, it was provided
on its creation by Philip III, and confirmation by Philip IV, that the
President-Governor and Captain-General should govern and exer
cise the functions of administration wholly and absolutely, except
in matters of justice and those which pertained to the Viceroy of
Peru, to whom he is subordinated (Law 12, Title 15, Book II, and
Law 2, Title 1, Book V). It is recommended, however, that the
Viceroy of Peru and the Audiencia of Lima should not intervene in
the Government of Chile except in cases of grave importance (Law
30, Title 3, Book III).
From the laws relating to the governments of the Santa Fe and
Buenos Aires audiencias it may be deduced that they enjoyed a
high degree of autonomy. Law 7, Title 15, Book II (of Charles
V, Philip II and Philip IV), after establishing the organization
and boundaries of the Audiencia of Santa Fe de Bogota, of the
new Kingdom of Granada, continues : "And we command that the
Governor and Captain-General of those provinces and the Presi
dent thereof possess, use and exercise, by himself alone, the powers
of government over the whole of the district of that audiencia, the
same as such are possessed and exercised by our Viceroys of New
Spain * * * and despatch all business and matters arising out
of the government." And Law 13 of the same title (of Philip IV),
after establishing also the organization of the Audiencia of Trini
dad, Port of Buenos Aires, comprising therein the Provinces of the
Rio de la Plata, Paraguay and Tacuman (which territories are seg
regated from the Audiencia of Charcas), provides that to the Gover
nor and Captain-General of those provinces and President of that
audiencia "pertains exclusively the duty to decide in all cases and
matters relating to government. * * * "
Such was the organization of tne colonial empire of Spain in
America, according to the laws of the Indies as set forth in the
Compilation published by Charles II in 1680.

14
§111. Organic Reforms of the XVIIIth
Century.
i) Viceroyalties of Santa Fe and Buenos Aires; Captaincies
General of Venezuela and Chile.— In the XVIIth century that
territorial division was altered by the creation of two more Vice-
royalties — those of New Granada and Buenos Aires — which were
constructed out of territories taken almost wholly from the juris
diction of the Viceroyalty of Peru.
The Viceroyalty of Santa Fe or New Granada, created primarily
in 1717 and abolished in 1723 for various reasons, was re-established
by royal decree of August 20, 1739. It was founded on the struc
ture erected out of the Audiencia district of Santa Fe de Bogota,
of the new Kingdom of Granada, with the addition of the provinces
of the Audiencia districts of Panama and San Francisco de Quito,
belonging to the Viceroyalty of Peru, and the Comandancia of
Caracas, or Province of Venezuela, which had been an appanage
of the Viceroyalty of New Spain.
Subsequently the boundaries of the Viceroyalty of Santa Fe were
reduced by the institution of the Captaincy-General of Venezuela,
with an independent government and its own audiencia (1742, 1777
and 1786), and the restitution to the Viceroyalty of Peru of the
province of Maynas (1802) and Guayaquil (1803 and 1806), of
the Audiencia of Quito.
The Viceroyalty of Buenos Aires was created July 7, 1778, from
the Audiencia districts of Buenos Aires and Charcas and certain
territories- of Chile. The Audiencia of Charcas, later called Chu-
quisaca, or Upper Peru, returned to form a part of the Viceroyalty
of Peru in 1810.
The Captaincy-General of Chile, which already had come to enjoy
a high degree of autonomy, acquired it completely by virtue of the
royal decree of March 15, 1798.
2) New Dispositions as to the Audiencias. — The colonial
regime underwent two more important changes during the last third
of the XVIIIth century : the reform of the audiencias and the crea
tion of the provincial intendencies.
By virtue of the royal decrees of April 6th and June 20, 1776,
the institution of the audiencias was altered; regents (presidents of
courts of audiencia) were created and their honors and preroga
tives, their powers as to internal management of the audiencias and
their relations with the Viceroys and other authorities were minutely

15
prescribed. And, although the honorary presidency was left to the
Viceroys and Governors, the regents were from that time the real
presidents of the audiencias. Such importance was attached to their
duties that, in the absence of the Viceroy or delegation of the lat-
ter's powers, the regent was charged with the despatch of business
of a civil and political nature.
3) Creation of the Provincial Intendencies. — Most transcen
dental in the administrative system was the creation of the office
of provincial intendent, instituted by Philip V in Spain, in
imitation of France (1718), and which Charles III established in
America, at first in the Viceroyalty of Buenos Aires (1782), and,
later, in that of Mexico, in conformity with the famous ordinance
as to intendents for the armies and provinces of New Spain, enacted
in 1783 and made to extend to the other Spanish dominions.
In accordance with that ordinance, which contained 306 articles,
an intendent was required to be placed at the head of each province,
charged with the enforcement of the laws, the government of the
towns, the decision of political and financial matters, the surveillance
and supervision of the administration of justice, and he was also to
retain in his charge the administration of the army.
It was this intrusion of the intendents in the command of the army
that supplied the motive for the royal decree of December 16, 1802,
in conformity with which the great powers delegated to them were
limited to those of a purely governmental and economic nature, not
conflicting with the authority of the captains and commandants-
general, in whom alone resided the authority relative to the com
mand, security and defence of their respective forces and provinces.
In 1803 a new Ordinance of Intendents was published, preserving
the essential features of the former ordinance and introducing modi
fications counselled by experience.
The creation of the intendents was important, in that it brought
about the operation of administrative functions on the basis of the
provinces instead of audiencias and regulated the territorial divi
sion, determining the provinces and their subdivisions, corresponding
to each circumscription.

16
§IV. Great Circumscriptions In Exist
ence at the Beginning- of the XlXth
Century.
On the initiation of the insurrectionary movement, Spain's domin
ions stood divided and organized into the seven great circum
scriptions following: the Viceroyalty of Mexico in North America,
the Captaincy-General of Guatemala in Central America,
the Viceroyalty of New Granada and the Captaincy-General of
Venezuela in the northern part of South America, the Viceroyalty
of Peru in the center of South America and the Captaincy-General
of Chile and the Viceroyalty of Buenos Aires in the southern part.
Each of those great circumscriptions embraced one or more
audiencias, various provinces governed by intendents, and different
inferior governmental entities (districts, lieutenantcies, corregimien
tos, etc.).

CHAPTER II.
Formation of the Spanish-American States.

Summary:
I. States springing from the Viceroyalty of New Spain. — 1. Mexico.
— 2. Central America : Guatemala, Salvador, Honduras, Nicaragua
and Costa Rica.
II. States springing from the Viceroyalty of Buenos Aires. — 1. The Ar
gentine Republic. — 2. Paraguay. — 3. Uruguay.
III. States springing from the Viceroyalty of New Granada. — 1. The in
surrection up to 1819. — 2. .The Republic of Colombia (of Bolivar).
— 3. The present Republics of Venezuela, Colombia and Ecuador.
IV. States springing from the Viceroyalty of Peru. — 1.. Chile. — 2. Peru. —
3. Bolivia.
§1. States Springing From the Vice-
royalty of New Spain.
Let us see how, from the immense colonial empire we have de
scribed arose the modern Spanish-American States, which, as
we have said, it is important to remember in order to Understand
well the facts set forth and the conclusions with respect to the pres
ent case that must be drawn from the formation of those States.
For more perfect clearness, we shall group the new States with
referencJ ;o their issue out of the ancient Viceroyalties.
i) Mexico. — The disagreements of the Spaniards, owing to their
doubt as to whether they should yield obedience to Ferdinand VII
or to the Supreme Junta established in the Peninsula as a result of
the French invasion of 1808, and the weakness of the authorities
who replaced the Viceroy Iturrigaray (deposed by those who sus
pected him of bearing little affection for the sovereignty of that
monarch), all favored the insurrectionary movement in Mexico,
which began with the so-called "grito de Dolores" (war cry of
Dolores) hurled forth by Hidalgo, the parish priest of the town of
that name, in 1810. That attempt failing, others were launched
by the Priest Morelos (1812), and Mina (1817); both uprisings
were quelled by the arms of Spain.

18
The news of the revolution in Spain in 1820 revived the insurrec
tion; at its head was placed General Iturbide, who rose in re
volt, and put forth, in the town of Iguala, a manifesto — the so-
called "project of Iguala"— on the 24th of February, 1821. In that
manifesto was proclaimed the independence of Mexico, under a
monarchy which was to be tendered to Ferdinand VII or his
brothers, on condition that they should always reside therein. The
Viceroy •ompromised to the extent of consulting the Spanish gov
ernment as to the project ; and, the proposal having been answered
in the negative, Iturbide, assuming the name of Augustine I, caused
himself to be proclaimed Emperor of Mexico, in May, 1822, first
by the troops and later by the Congress, which by that time had
been convened. Ten months afterwards he found himself forced to
abdicate (March, 1823), and a new Congress proceeded to frame
the "Federal Constitution of the United States of Mexico," pub
lished in October, 1824. The independence of the new republic
was definitely assured by General Santana's victory over the Spanish
forces at the battle of Tampico in 1829.
2) Central America. — Except for certain isolated attempts at
insurrection, the provinces of the ancient Captaincy-General of Gua
temala; which comprised Central America, remained submissive un
til the proclamation of the independence of Mexico, when they also
declared themselves independent on the 15th of September, 1821,
and — peacefully, however — united with the Mexican empire of
Iturbide ; but, on the dissolution of the empire, in March, 1823, they
met in a constituent assembly, and, in July of the same year,
ratified their independence, not only with respect to Spain, but
Mexico also, and from all other powers in the world. That assembly
framed the constitution of the United States of Central America
of November 22, 1824, thus forming a republican confederation com
posed of the five States of Guatemala, Salvador, Honduras, Nicara
gua and Costa Rica, and having its own constitution.
The confederation so formed lasted fourteen years, when, the
federal compact having been broken by the Congress of 1828, the
present republics of Central America, bearing the same names as
the States above mentioned and completely independent of each
other, were born.

19
§11 States Springing From the Vice-
royalty of Buenos Aires.
i) Argentine Republic. — The insurrection of the Viceroyalty of
Buenos Aires began in the city of that name in May, 1810, with
the dismissal of the Viceroy and the institution of a junta which
started to govern in the name of Ferdinand VII. In 1811 that junta
was replaced by a triumvirate which framed the "Provisional
Ordinance for the Government of the United Provinces of the Rio
de la Plata." On the 9th of June, 1816, after various vicissitudes,
a congress, convened at Tucuman, proclaimed the independence of
the "Confederate States of the Rio de la Plata," which remained
definitively separated from Spain. They, however, passed through
diverse constitutions of the republican system of government, fed
eral and centralized, until they took the present name of the Ar
gentine Republic.
2) Paraguay. — Paraguay, which belonged to the Viceroyalty of
Buenos Aires, did not wish to respond to the call of the Junta of
that town, but, acting on its own account, and by a single stroke,
achieved its independence in 1811. A republic was at once insti
tuted, which, by one congress, was organized under the leadership
of two consuls (1813), and, by another, under one consul (1814),
and continued an effective existence for a most extended period un
der continual dictatorship (of Dr. Francia and of Lopez).
j) Uruguay. — The district of Uruguay, which constituted the!
so-called "Eastern Border" of the Viceroyalty of Buenos Aires,
separated from Spain in 1814 after the Spanish general had evacu
ated Montevideo, declaring itself independent in a congress con
voked by General Artigas. The disorders following upon the
emancipation supplied the motive for the occupation of that terri
tory by the Portuguese from Brazil (1817) and its annexation to
that country (1821) under the name of the Province of Cis-PIatina;
but, on Brazil's separation from Portugal in 1822, Uruguay again
declared herself independent and, by so doing, brought about a war
between Brazil and the government of Buenos Aires. That war ter
minated by the recognition, favored by England, of the "Eastern
Republic of Uruguay."

20
§111. States Springing From the Vice-
royalty of New Granada.
i) The Insurrection down to 1819. — The revolutionary move
ment was initiated almost simultaneously in Venezuela, New Gran
ada and Quito and was similar, in the matter of principle involved,
in the constitution of juntas recognizing Ferdinand VII and in
pronouncements of a political nature, but with different aspects
and result" afterwards, until 1819, in which year the fate of the
ancient Viceroyalty was decided.
The insurrection of the Captaincy-General of Venezuela began
on the 19th of April, 1810, at its capital, Caracas, the revolutionary
junta of which, in 1811, convoked and assembled a congress that pro
claimed the independence of Venezuela (July 5) and formed a re
publican constitution (December 21). This first movement hav
ing been suppressed, another more important resulted. In its fore
front appeared the celebrated Simon Bolivar, afterwards called the
Liberator, who ratified, in 1813, the declaration of independence of
Venezuela, established and exercised at Caracas (of which he was
a native) a dictatorial government, and extended by his arms the in
surrectionary movement.
The revolution of New Granada was principally focused upon
Santa Fe de Bogota, which rose against the Viceroy in June, 1810,
and, in 1811, assembled a congress whereby it was constituted an
independent State under the name of Cundinamarca, and attempted
to form a confederation of the other provinces of that ancient king
dom. Another congress, calling itself the Congress of the "United
Provinces of New Granada," was convoked with that object in view.
It assembled in. October, 1812, and proclaimed the independence.
From the first moment, however, it stumbled, in its work of organi
zation, against the obstacles of rivalry among the provinces repre
sented and the protests of those who would not lend their support,
until at last it reached the determination to commit the government
to Bolivar as Captain-General (January, 1815) ; but the fortunes
of war were favorable to the Spaniards, and, after the taking of
Cartagena (1816), the insurrection of New Granada may be con
sidered as having been suppressed.
The movement in Quito was of no real importance, since it was
confined to the formation of one junta to govern in the name of
Ferdinand VII (1809), and of another to present to the Council of

21
Regency in the Peninsula (1810) the grievances against the Presi
dent of the Audiencia (1811), and to the assembling of a congress,
the members of which never arrived at an undersfanding airtong
themselves. The whole movement terminated with a complete sub
mission to the Spanish authorities in 1812.
2) The Republic of Colombia (of Bolivar). — In February,
1819, a congress convoked by Bolivar assembled at Angostura
(Venezuela), and, having sanctioned the emancipation of Venezuela
and its constitution as an independent State, equipped Bolivar with
the means to prosecute the insurrection throughout the Viceroyalty.
This Bolivar undertook, crowning his efforts with success at the de
cisive battle of BoyaCa, in Granadan territory, on the 7th- of August
of the same year, and assuring, not only the independence of Vene
zuela, but the emancipation of New Granada. On the 17th of De
cember, 1819, the same congress resolved "that the Republics of
Venezuela and New Granada stand from this day united in one
republic under the glorious, title : Republic of Colombia" ; but the
Congress of Angostura was composed only of deputies from the
provinces of Venezuela and of but one from New Granada, the
deputy from Casanare. Consequently, as much to complete the
representation as to -organize definitively the new republic, the
assembly of another congress at Ciicuta was agreed upon.
There was then assembled, therefore, at Rosario de Ciicuta, a con
stitutional congress composed of representatives of the twenty-two
Venezuelan and Granadan provinces already emancipated. That
body ratified the "Constitution of the Republic of Colombia" on the
30th of August, 1821, declaring that the territory of the republic
should be that embraced within the ancient Viceroyalty of the
Kingdom of New Granada and the Captaincy-General of Vene
zuela. The Presidency of Quito, even though as a part of the Viceroy
alty of New Granada, it was embraced in the new republic by the
Congress at Angostura, continued to remain under the authority
of Spain. Bolivar, therefore, exerted every means to emancipate
and attract it, fomenting insurrection and sending General Sucre,
who caused the insurrection to triumph completely at the battle of
Pichincha in 1822. After this, Quito resolved, at an assemblage of
citizens in May of that year, to declare herself independent of Spain
and to join and form part of the republic.
The Republic of Colombia endured until 1830, shortly prior to

22
the death of Bolivar, when it dissolved, bringing into existence other
States. In order that that republic may not be confounded with
the one bearing the name at the present time, let us call the earlier
one the "Republic of Bolivar," since he was its founder and it lived
and died with him.
3) The Present Republics of Venezuela, Colombia and
Ecuador— These are the three States into which the Republic of
Bolivar was separated in the year 1830.
The Republic of Venezuela, which was the ancient Captaincy-
General of that name, on the 22d of September of that year pro
claimed the constitution framed by the congress convoked by Gen
eral Paez.
The State which had been the Kingdom of New Granada consti
tuted itself, in 1831, the republic of that name. It underwent
changes in name from time to time, being known successively as the
Granadan Confederation (1858), the United States of Colombia
(1861) and the Republic of Colombia (1886), which it retains at
the present time.
The Republic of Ecuador was organized by a congress in 1830
with three out of the twelve departments into which the Republic
of Bolivar was divided. These were Quito, Guayaquil and Azuay
(springing from the ancient Audiencia of Quito), to which they
united Cauca (which had belonged to New Granada).
§IV, States Springing From the Vice-
royalty of Peru.
1) Chile. — The m&vement in the Captaincy-General of Chile
began at its capital, Santiago, in the month of September, 1810,
with the formation of a governing junta, and invoked the name
of Ferdinand VII, which, as we have seen, had become the general
rule at that time. The movement soon developed into revolution,
the Chileans struggling against each other for power. Because of
those dissensions, the Viceroy of Peru had little difficulty in sup
pressing the revolution in 1814; but, on General San Martin's
placing himself at the head of the insurrection in 1817, with the
support of Buenos Aires, and, after winning the battles of Chacabuco
and Maipii, the independence of Chile was achieved in 1818 and
an assembly at once proceeded to frame the constitution of the
public (1822).

r<

23
2) Peru. — Peru remained faithful to Spain until 1820. In that
year an Argentine-Chilean army invaded its territory under the
command of General San Martin, who in his march excited the
country to revolt. After his entry into Lima on the 28th of July,
1821, he proclaimed its independence and convoked a congress at
that capital (1822), before which he presented himself and resigned
his powers, committing the government of the republic to a junta.
Afterwards the advance of the Spanish troops and internal dissen
sions forced the Peruvian Congress to ask help from Bolivar, who
entered Lima September 21, 1823, and was invested with dictatorial
powers. Bolivar succeeded in securing the independence of Peru by
the battles of Junin and Ayachucho (1824), and, for the purpose of
organizing the government according to his own ideas, he caused to
be adopted, in 1826, the constitution he had that same year given
to Bolivia. With that constitution, however, the Peruvians were not
satisfied, and, the Liberator having retired, a new congress, as
sembled in July, 1827, framed another, which was published in 1828.
3) Bolivia. — The region called Upper Peru, composed of the
Provinces of Charcas, La Paz, Cochabamba, Potosi and Santa Cruz
de la Sierra, which had formed the ancient Audiencia and Gobierno
of Charcas, with its capital at La Plata, rose in insurrection in 1818
(after some abortive attempts in 1810), and succeeded in emanci
pating itself, with the support of Bolivar and Sucre, in 1825. A
congress, assembled at Chuquisaca (formerly La Plata and after
wards Sucre) solemnly proclaimed its independence on the 6th of
August, 1825, calling the new State the "Republic of Bolivia," in
remembrance of the Liberator. In May, 1826, that general caused
the Congress to adopt a very complicated constitution (providing
for three chambers), which was soon repealed (1828), and replaced
by another in 1831.

CHAPTER III.
Historical Review of the Question of Peruvian
Boundaries.
Summary:
I. Relations of Peru with the first Republic of Colombia. — 1. Origin of
the question in 1822. — 2. Mosquera-lVJonteagudo treaty of the
same year. — 3. Galdeano-Mosquera Convention of 1823 (not rati
fied).^. Strained relations. (1826) ; war (1828-9).— 5. Guayaquil
treaty of peace and amity of 1829.
II. Relations of Peru and Ecuador. — 1. Treaty of peace and alliance of.
1832. — 2. Conferences at Quito in 1841. — 6. Disagreements of the
governments and breaking out" of hostilities.-^. Guayaquil treaty
of peace and amity of 1860 (not ratified). — 5. Incidents down to
1887.
§1. Relations of Peru with the First
Republic of Colombia.
Entering now upon the question to Which this work relates, we
offer a review showing how it has developed historically down
to the period of its present status, without stopping, however, for
details or commentaries which must later be the object of our study
when we examine its diverse aspects.
The Republic of Colombia was created by the forces of Bolivar
out of the union of the ' Captaincy-General of Venezuela with the
Viceroyalty of New Granada, and, upon its emancipation after the
battle of Pichincha in 1822, the province of Quito, which had
formed part of the Viceroyalty, expressly adhered.
That republic bordered on Peru along the southern part of the
Viceroyalty of New Granada, for, upon the formation of the two
States, Guayaquil and the Province of Quito had remained in
Colombia, while the Province of Jaen and the Comandancia general
of Maynas had remained in the new State of Peru. She con
sidered those territories as belonging of right to her, because, al
though they had been parts of the ancient Kingdom of Quito, Jaen
united with Peru on its emancipation, and the Comandancia
general of Maynas passed into dependency upon the Viceroyalty

25
of Lima by a royal decree of Charles IV in 1802. We shall not now
discuss the rights of the matter, but merely c. te the facts in order
to disclose the respective positions.
From the birth of both States (Colombia and Peru) down to
1826, the relations between them were very cordial, principally
because each looked upon Bolivar, the Liberator, as its supreme
chief, and, although the question of boundaries was agitated, those
relations were not disturbed in. the least degree. The question was
discussed with the utmost tranquillity and the two States continued
in the possession of their respective provinces.
i) Origin of the Question in 1822. — At the beginning of the
year following the proclamation of the independence of Peru (July
28, 1821) its government published the regulations for the election
of the constituent congress which was to assemble at Lima.
In consequence thereof, on- June 20, 1822, General Joaquin Mos
quera, the representative of Colombia at Lima, asked for an. ex-,
planation concerning the convocation of the inhabitants of Quijos
and Maynas (the two ancient gobiernos which had been included in
the Comandancia general of Maynas in 1802), the fact being, he
said, that, as those territories had been part of the ancient Vice-
royalty of New Granada (Audiencia of Quito), they belonged to Co
lombia. Mosquera was satisfied with the explanation given him by
the Peruvian Minister, to the effect that the inhabitants on
the other side of the Maranon were not taken into account in
computing the apportionment of the number of deputies. That,
however, constituted no obstacle to the representation of the Prov
ince of Maynas (or Amazonas region) in that congress and all sub
sequent congresses.
2) Mosquera-Monteagudo Treaty of 1822. — On tbe 15th of
July, 1822, this same General Mosquera, as Plenipotentiary of Co
lombia, and Monteagudo, as Minister of State of Peru, signed a
treaty of peace and alliance between the two republics, in the 9th
article of which it was stipulated that: "The demarcation of the
exact boundaries which must divide the territories of the Republic
of Colombia and the State of Peru will be settled by a special agree
ment after the next constituent congress of Peru may have empow
ered the Executive of that State to adjust this point; and the differ
ences which may occur concerning the matter shall be determined
by the conciliatory and peaceful means proper as between two sister
and confederated nations."

26
3) Galdeano-Mosquera Convention of 1823 (not ratified).' —
The governments of Peru and Colombia named, respectively, D.
Jose Maria Galdeano and D. Joaquin Mosquera as their special
representatives to negotiate the agreement as to -boundaries above
mentioned. In his note of December 3, 1823, the representative of Colombia
proposed the following solution: "Both parties recognize, as the
boundaries of their respective territories, the same that the Vice-
royalties of Peru and New Granada had in the year 1809, from the
outlet of the river Tumbes in the Pacific ocean to the territory of
Brazil." On the 17th of the same month the representative of Peru re
plied, stating that, although nothing appeared to him more con
sistent than that the republics constructed out of the territories of
the ex-Viceroyalties of Peru and New Grenada should preserve
the same boundaries that divided the governments in the year 1809,
still one could not proceed at once to fix those boundaries without
acting rashly and exposing the principle to contradiction by topo
graphical errors.
The representatives being in accord, therefore, they signed at
Lima, on the 18th of December, 1823, the "convention" which bears
their name, but in which it is only stipulated that "both parties
recognize, as the boundaries of their respective territories, the same
that the former Viceroyalties of Peru and New Granada had in
1809." That agreement was rejected by the Congress of Colombia
because of its ambiguity — really, however, because the second part
of Mosquera's proposal was suppressed.
4) Strained Relations (1826); War (1828-9).— In 1826 the
amicable relations between Colombia and Peru began to be strained
because of the opposition developed against Bolivar in his own Re
public (as a result of which he had stayed away for a considerable
time), and because of the discontent of Bolivar himself, who, after
leaving Peru in that year, saw the Peruvians rise against his com
mon leadership over both republics and the undoing of his favorite
work, the Bolivian constitution.
On the 7th of March, and again on the 2d of December of the
same year, the representative of Colombia objected to the inclusion
of the provinces of Jaen and Maynas in the convocation of 1826
for elections to the Peruvian Congress mat was to reform the con
stitution, protesting in his last specification against the appointment

27
of the Bishop of Maynas, which he regarded as an act pf aggression
against the sovereignty of Colombia.
The various complaints of the republic were formulated in the
official letter addressed by the Minister of Foreign Relations of
Colqmbia to the Plenipotentiary of Peru on the 3d of March, 1828,
in which he said : "As to laen and Maynas, whether bearing in mind
the principle that has invariably guided all the American States
to refrain from eticroaching upon the limits possessed by the great
divisions of our continent as colonies, or whether remembering the
endeavors to which those provinces really owe their independence,
it is clear that the attempt to retain them as Peruvian territory must
be characterized as usurpation."
The tenseness in the relations caused by the disagreement with
Bolivar, who was annoyed by the Peruvian rejection of his
constitution and offended by the press of that country, and whose
political work was impaired by the insurrectionary movements of
Bolivia and Colombia which he attributed to the Peruvian govern
ment, developed into a war between the two States, having varir
ous results. Peru was defeated at Tarqui but continued in posses
sion of Guayaquil which she had occupied, all of which we shall
carefully explain at the proper time.
5) The Guayaquil Treaty of Peace and Amity of 1829. — On
the 28th of February, 1829, the day following the battle of Tarqui,
where the Peruvian army was routed, the generals commissioned
for that purpose signed a preliminary peace convention on the field of
Giron, establishing the basis for a definitive treaty. Article 2
of the agreement provided that the contracting parties, or
their respective governments, should appoint a commission to settle
the boundaries of the two States, "the political division of the Vice-
royalties of New Granada and Peru in August, 1809, when the
revolution of Quito broke out, to serve as the basis, and binding
themselves to cede reciprocally those small portions of territory
which, by reason of the defects of an inexact demarcation, operate
to the injury of the inhabitants." On the ratification of the agree
ment, on the first of March, General Sucre placed his signature to
the declaration that, in proof of the love borne by the government
of Colombia for the Peruvian people, "it did not wish to take a
grain of sand from her territory."
As soon- as the war was at an end, the governments of
Peru and Colombia appointed plenipotentiaries to draw up the defin-

28
itive treaty. D. Jose Larrea y Loredo and D, Pedro Gual were
named respectively and met at Guayaquil in the month of Septem
ber, 1829, holding six conferences, at which, among other questions,
they occupied themselves with the matter of boundaries. The
plenipotentiary of Colombia stated that if the State he represented
had not approved the Galdeano-Mosquera convention, it was be
cause "it did not in itself provide the means for reaching a con
clusion and thereby preventing annoyances which its indecision
could cause to both countries."
The result of those conferences was the treaty of peace and amity
between Peru and Colombia signed at Guayaquil on the 22d of Sep
tember 1829, by the plenipotentiaries mentioned.
In its text that treaty says:'
"Art, 5th. Both parties recognize, as the boundaries of their re
spective territories, the same that were possessed before their in
dependence by the ancient Viceroyalties of New Granada and Peru,
with such variations only as they may judge convenient to agree
on between themselves; to which effect they obligate themselves
f : am the present moment, reciprocally to make those cessions of
small parcels of territory which may contribute to fix the divisionary
line in the course most natural, exact and calculated to avoid con
tentions and vexations between the authorities and inhabitants along
the frontiers.
"Art. 6th. In order that this last result may be obtained as ex
peditiously as possible, it has been agreed, and is hereby expressly
agreed, that there shall be constituted and appointed by both gov
ernments a commission, composed of two persons for each republic,
who shall survey, rectify and fix the divisionary line in conformity
with the stipulations in the preceding article. That commission shall,
with the concurrence of the respective governments, place each of
the parties in possession of the territory to which it may be entitled,
accordingly as it proceeds with the recognition and tracing of said
line, beginning from the Tumbes river at the Pacific Ocean."
In the 7th Article the terms were fixed within which the com
mission had to discharge its duties, adding, that if the commission
ers should not agree as to one or more points, these should be
brought to the attention of their respective governme^ ts in order
that the latter might resolve them amicably and expeditiously and
without prejudice to the commission in continuing its labors to a
conclusion. And article 19 provided that, if doubts should arise as to the in
terpretation of any articles of the treaty, or as to the application of
Article 6th, and the two governments should fail to arrive at an un-

29
derstanding, the point should be submitted to a friendly govern
ment "whose decision shall be absolutely obligatory on both."
In order to put this treaty into effect, a commission was desig
nated to establish the boundaries ; but it could not begin its labors,
as it ceased to exist without having accomplished anything because
of the disintegration and demise of the State of Colombia in 1830.
§11. Relations of Peru with Ecuador.
i) Treaty of Amity and Alliance of 1832. — On the formation
of the State of Ecuador in 1830 after the dissolution of Colombia,
by the voluntary union of three departments which had been prov
inces of the ancient Audiencia of Quito, the question of its boun
daries with relation to Peru arose.
The Bishop of Quito, having appointed a Prefect of Missions for
Maynas in 1831, the Government of Peru, in its note of the 20th of
September, demanded of Ecuador an explanation, manifesting its
surprise at the appointment, inasmuch as the territory of Maynas
belonged to Peru, its diocese being suffragan to the Metropolitan of
Lima, and having always been occupied by persons designated
by that government by virtue of its indisputable right of patron
age. The Government of Ecuador replied on the 7th of November,
regretting the incident, which it ascribed to an excess of zeal on
the part of the Bishop, in an effort, by the establishment of missions,
to succor, as expeditiously as possible, the spiritual needs at that
point, saying also that, on the giving of the permission to the prelate,
he had been cautioned to place himself in accord with the proper
authorities of Peru in order to avoid any annoyance, but without
prejudice by this to the question of boundaries.
Ecuador was a new State ; at its institution it had not con
voked the inhabitants of Jaen and Maynas, those provinces being
in the possession of Peru ; and the States mutually recognized each
other by the treaty of Lima of the 12th of July, 1832, approved by
their congresses. It is worthy of note that in the Congress of
Peru were seated deputies from Jaen and Maynas, and that, in
order to negotiate that treaty, the Plenipotentiary of Ecuador began
by ignoring the treaties of Colombia.
This treaty of 1832, in Article 15th, stipulated that, "during the
negotiation of an agreement for the settlement of boundaries -be
tween the two States, the present boundaries shall be recognized and
respected." That is to say, the boundaries of those territories which

30
they comprised when they mutually recognized each other as such
States. After the treaty of 1832, no other was sanctioned and ratified
until the arbitration of 1887.
So many attempts were made to settle the question of boundaries,
however, that none ever arrived at an ultimation.
2) Conferences at Quito in 1841. — In the month of December,
1841, the plenipotentiaries of Peru and Ecuador, D. Matias Leon
and D. Jose Felix Valdivieso, met at Quito to negotiate and con
clude, upon solid foundations, the treaties most appropriate for
the welfare of both countries. They conferred on various ques
tions, and particularly on the question of boundaries.
The Plenipotentiary of Ecuador proposed, at the second confer
ence, that they should recognize, as the boundaries of their respec
tive territories, the same that were possessed by the ancient Vice-
royalties of New Granada and Peru before their independence, "it
being, in consequence, agreed that the Provinces of Jaen and Maynas
be restored to the Republic of Ecuador, in the same limitations in
which they were possessed by the Presidency of Audiencia of Quito,"
without prejudice to the concessions which the two States might
make in special agreements for the purpose of obtaining a natural
and suitable dividing line; and at the third of these confer
ences they determined what that dividing line should be, fixing it
point by point, with the result that for Ecuador were left the
towns and territories of the ancient provinces of Jaen and Maynas,
situated on the northern bank of the Maranon river, and, for Peru,
all the territories and towns which the Spanish government had as
signed to the Gobernacion of Jaen, on the southern bank of the
Maranon, and which the Arrowsmith map denominated as Luya and
Chillaos. The Plenipotentiary of Peru recognized the advantage of mutual
concessions by the parties in order to fix the line more adequately —
based, nevertheless, on the ancient boundaries of the Viceroyalties
of Peru and New Granada — but added that he had always noted and
heard that the province of Maynas had been a dependency of the
former, and opposed the fixing of those boundaries in the absence
of instructions to that end.
The conferences terminated badly, however, because of the failure
of the conferees to agree also as to other questions and considerations
of a political character. The Plenipotentiary of Peru stated that he

31
would continue no longer in the performance of his mission and that
he would request his passport for departure, as it appeared to him in
decorous to remain near a government the representative of which
had made declarations so offensive as to reveal a hostile attitude
toward his government.
3) Disagreements of the Governments and Breaking Out of
Hostilities. — In order amicably to adjust the diplomatic embroglio
resulting from the conferences of Quito and to settle pending mat
ters, the governments negotiated for further conferences, delegating
General Daste as Plenipotentiary of Ecuador and D. Guillermo
Chariin, Minister of State of Peru, who met at Lima on the 13th of
April, 1842; but the conflict was only further aggravated by the
intemperate form in which General Daste presented the complaints
of his government against that of Peru, demanding that "as a pre
requisite to any settlement, the immediate restoration of the Prov
inces of Jaen and Maynas be stipulated, the only means by which
the affront can be wiped out." The conference, therefore, came to
an end at the very outset and the relations between the two gov
ernments remained interrupted.
Those relations resumed, they were again broken in 1853 on ac
count of the question of . boundaries.
Conformably to the principle of uti possidetis, adopted by the
American Republics, and by virtue of the Royal Decree of July 15,
1802, separating those territories from the Viceroyalty of new
Granada and restoring them to Lima, the Government of Peru,
on the 10th of March of that year, issued a decree creating
the political and military government of Loreto, which embraced,
from the boundary of Brazil, all the territories located on the north
and south of the Amazonas and Maranon rivers, as well the rivers
which emptied into them. Against this act the Republics of Ecu
ador and New Granada protested. To those protests, however,
Peru replied, maintaining her rights over the territories which had
constituted the ancient Comandancia of Maynas.
In November of the same year the Government of Ecuador pre
sented to Congress a projecto de ley (draft of a law) in which free
dom of navigation was declared for the Chinchipe, Santiago,
Morona, Pastaza, Tigre, Curaray, Huanaca and other "Ecuadorian
rivers," which the proposed law stated emptied into the Amazonas
river; and the Government of Peru protested in its turn, invoking
the above-cited Royal Decree of 1802 ; in reply to which the Gov-

32
eminent of Ecuador insisted that that Royal Decree had no force
in law ; that it had never been put into execution and ought not to
be enforced.
Four years later, in 1857, on learning that Ecuador was about to
pay part of her .English indebtedness by the cession of certain terri
tories located between rivers flowing into the Amazonas, Peru re
newed her protest, insisting upon her argument of uti possidetis and
the Royal Decree of 1802. To this the Government of Ecuador re
joined that in 1810 the provinces of Jaen and Maynas and the ter
ritory on the northern shores' of the Amazonas belonged to the
jurisdiction of the Presidency of Quito, because said royal decree
was neither valid nor in effect.
Thus the question of boundaries proceeded, increasing more and
more in bitterness as it became complicated in political events, un
til diplomatic relations were severed and Peru began hostilities,
occupying Guayaquil. That condition of affairs was brought to an
end by the peace protocol of December 4, 1859, which was to serve
as the basis of a definitive treaty.
4) Guayaquil Treaty of Peace and Amity, 1860 (not ratified): —
After declaring that the good relations between the two republics
were fully re-established and giving all kinds of satisfaction for past
occurrences, the treaty takes up the question of boundaries, pro
viding, in Article 5, that "the Government of Ecuador, upon con
sideration of the documents presented by the Peruvian representa
tive, among which the Royal Decree of July 15, 1802, is given chief
place in support of the rights of Peru to the territories of Quijos
and Canelos, declares null and of no effect the adjudication of any
part of those territories to the British creditors."
And adding, in Article 6, that the Governments of Ecuador and
Peru agree to adjust the boundaries of their respective territories
and to appoint, within a term of two years, reckoning from the ex
change of ratifications of the present treaty, a mixed commission
which, in accordance with observations to be made and proofs to
be submitted by both parties, should establish the boundaries of the
two republics. In the meanwhile, the republics were to accept, as
such boundaries, those based on the uti possidetis recognized in the
fifth article of the treaty of September 22, 1829, between Colombia
and Peru, and which were possessed by the ancient Viceroyalties of
Peru and Santa Fe in conformity with the Royal Decree of July
15, 1802.

33
The treaty signed at Guayaquil on the 25th of January, 1860, was
ratified there on the 26th by General Castilla as President of Peru,
and, on. the 27th, by General Franco, as the Chief Executive of
Ecuador. But, on the deposition of General Franco from power and the
assembling at Quito of a convention for the reconstruction of the
government, the new government rejected the treaty; and, on its
part, the Peruvian Congress also withdrew its ratification on Jan
uary 28, 1863, taking the position that it had not been in negotia
tion with an actual government of Ecuador but rather with the
chief of a party or faction; and, as to the question of boundaries,
Peru insisted that the principle of uti possidetis of 1810 once ac
cepted by the treaty of 1829, and she having proven her rights by
the Royal Decree of 1802 and the documents found in the archives
of the ancient government of Maynas, there remained only to exact
from Ecuador their explicit recognition.
5) Incidents down to 1887. — The new constitution of Ecuador,
promulgated March 10, 1861, provided that "the boundaries of the
Republic shall be definitely fixed by treaties to be entered into with
bordering States." But Ecuador, without taking into account the
provisions of the treaty of the year before, or waiting until others
should be negotiated, published a law of territorial demarcation on
the 29th of May of that year. In that law were included, as belong
ing to that republic, the "territories situated in the Gobierno
of Jaen, of the ancient Kingdom of Quito, the Cantons of Napo
and Canelos, the territories constituting the Gobierno of Quijos, as
far as the Amazonas, in the Kingdom of Quito, and the territory of
the Gobierno of Maynas." To this Peru had to protest in her note
of August 24th, setting forth her rights and the absence of authority
in one State to legislate respecting matters of property and owner
ship pertaining to another.
It is thus that matters progressed, except with regard to incidents
of little moment — such as the request by Quito in 1875 for the scien
tific exploration of the Morona river — down to 1887, in which year
the Government of Ecuador reverted to its project to cede part of
the territories of Maynas to her British creditors in settlement of
debts, which was the cause of the hostilities of 1858, and against
which the Government of Peru again protested, both republics there
after joining in the present arbitration.

CHAPTER IV.
The Arbitration of His Majesty, the King of Spain
SuMMAB" :
I. Ar itral convention of 1887.
II Direct negotiations.— 1. Garcia-Herrera treaty of 1890 (rejected).—
2. Protocol of 1891 as to the Spanish arbitration.— 3. Supple
mental arbital convention of 1894 (not ratified) .
Ill Prosecution of the Spanish arbitration— 1. Cornejo-Valverde pro
tocol of 1904.— 2. Arbitrations of Colombia with Ecuador and
Peru.  3. Peru's modus vivendi with Colombia and with Ecua
dor.
IV Claims formulated by the parties to the Spanish arbitration.— 1.
Claims of Peru: (a) briefs, (b) final memorial.— 2. Claims of
Ecuador: (a) historical- juridical statement and memorial of
1902, (b) final memorial.
§1. Arbitral Convention of 1887.
In consequence of the protests of the Government of Peru against
the proposal of Ecuador, above mentioned, to cede to. her creditors
part of the northern territories of Maynas, both republics deter
mined to submit their differences to arbitration, without prejudice,
however, to a settlement by means pf direct negotiations.
To this effect the .convention of Quito of August 1, 1887, "amica
bly to put an end to the questions of boundaries pending between
the two nations" was negotiated.
In Article 1, the Governments of Ecuador and Peru "submit
said questions to His Majesty, the King of Spain, for his de
cision as arbiter of the right, definitively and without appeal."
Through the medium of plenipotentiaries (as stated in the three
following articles), the governments are simultaneously to urge the
acceptance of the appointment- by His Catholic Majesty within eight
months, reckoned from the exchange of ratifications. A year after
such acceptance by the August Arbitrator, the plenipotentiaries are
to present to His Majesty, or to such minister as he may designate, a
statement wherein shall be set forth the claims of their respective
governments, accompanied by documents supporting and giving
weight to the legal arguments in the case. The plenipotentiaries are

35
given authority, from the day on which such statements or briefs
shall be presented, to receive and answer all communications which
the August Arbitrator may deem proper to transmit to them, in
such prudent terms as they may choose, and also to abide by all
rulings which he shall dictate with the object of making clear the
rights of the parties.
And in Article 6 it is determined that, before the rendition of the
final arbitral decision, both parties shall pledge themselves most bind-
ingly to settle, by means of direct negotiation, all or any of the points
involved in the question of boundaries, and that, if those settlements
should be verified and duly effectuated, they shall be brought to the
knowledge of His .Catholic Majesty, thereby concluding the arbi
tration, or leaving it open as to those points remaining unsettled.
Failing agreement by direct negotiation, the arbitration is to pro
ceed to its fullest extent as stipulated in Article 1.
On the exchange of ratifications of that convention, the Pleni
potentiary of Peru, D. Juan M. Goyeneche, in the name of the gov
ernment he represented and of the Republic of Ecuador, which had
also empowered him, appeared before His Catholic Majesty to solicit
Ms acceptance of the appointment as arbitrator. The acceptance
was given by His Majesty on the 24th of December, 1888, with an
expression of his lively satisfaction at the good will that inspired
the parties, and his interest in the tranquillity of the Spanish-
American States.
Before the expiration of the following year, i. e., on the 10th of
December, 1889, the Charge d'affaires of Peru, D. Jose Pardo y
Barreda, presented to Her Majesty, the Queen Regent of Spain,
the Brief of that Republic, with its documentary proofs. Ecuador
did not present hers until 1892, having awaited the results of the
direct negotiations that had been undertaken.
§11. Direct Neg-otiations.
i) Garcia-Herrera Treaty of 1890 (rejected). — By virtue of
the stipulations in Article 6 of the arbitral convention, the Govern
ment of Ecuador invited Peru, on the 1st of October and the 29th
of December, 1888, to negotiate a direct settlement of the boundary
question, and Peru, having accepted the second invitation. D. Arturo
Garcia and D. Pablo Herrera were appointed plenipotentiaries of
Peru and Ecuador, respectively. After holding several conferences,

36
they signed, at Quito, on the 2nd of May, 1890, the tresty that bears
their names, in which they established, by way of compromise, and
with necessary details, the divisionary line between the two re
publics. That treaty was approved by the Congress of Ecuador on the 18th
of June of the same year, but the Peruvian Congress, in approving
it on the 25th of October, 1891, introduced two important modifi
cations, uggesting to the Government that, in the event of Ecuador's
refusal to accept them, the two points be referred to the arbitra
tion of the King of Spain, on which conditional proposal it insisted
on the 25th of October, 1893, following some observations by the
government. As a result, the Congress of Ecuador concluded by
rejecting the treaty, on the 25th of July, 1894, and directed its gov
ernment to open further direct negotiations.
2) Protocol of 1891 as to the Spanish Arbitration. — On the 9th
of January, 1891, after the Garcia-Herrera treaty had been signed
and was pending legislative ratification, the Minister of Foreign
Affairs of Ecuador and the Charge d'affaires of Peru met at Quito
and agreed, at the request of the former, to inform His Catholic
Majesty of all that had transpired and ask him to suspend his final
decision until the conclusion of the pending negotiations.
At that conference the representative of Peru stated that his gov
ernment had already complied with the duty of presenting its Brief
to His Majesty within the year agreed upon, and the representative
of Ecuador explained that his government, in November, 1889, also
within that period, had delivered to the Ambassador of His Majesty
at Paris a Statement in which an order was sought (from the Arbi
trator) appointing a commission to negotiate a direct settlement,
without, however, formulating a complaint or submitting the Ecua
dorian titles. He said, however, that that action did not signify a
failing in respect for the arbitration of His Majesty, as had been sup
posed, and that, in proof of this, there would be presented, before the
convening of the Peruvian Congress, a new Brief destined to facili
tate the decision of the Spanish sovereign in case the pending treaty
should not be ratified and it should be necessary to proceed with the
arbitration. The representatives then agreed that it should be understood that,
with that Statement of November 2nd, the arbitral proceeding
should be renewed "without prejudice to the rights of Ecuador and
Peru to amplify their first statements at the proper time."

37
And, finally, they declared that, in the definitive settlement of the
boundary question in the treaty of 1890, the stipulations referred
only to the rights of Peru and Ecuador without prejudice to those
which might be put forward by a third nation, these latter to be the
subject of subsequent negotiation with the party in whose favor
judgment might be rendered, with no responsibility whatever on
the other party.
3) Supplemental Arbitral Convention of 1894 (not ratified). —
Aware of the disposition of Peru and Ecuador to negotiate anew,
and believing that she ought to be recognized as entitled to the
portion of the frontier lying between the Napo and Caqueta (Or
Yapura) rivers, Colombia asked leave, on the 13th of August, 1894,
to participate in those negotiations; and her intervention being ac
cepted by the other two, the three republics respectively designated
their representatives, who, after holding several conferences, on the
15th of December, 1894, signed a convention supplementary to the
arbitral convention of 1887.
By its first article, Colombia acquiesced in the arbitration of the
King of Spain, but, since it appeared that the high c'ontracting par
ties had stipulated that the Royal Arbitrator should render judg
ment upon a consideration, not only of the titles and arguments
on the law, "but also the accommodation of the contracting parties,
reconciling them so that the frontier line may be founded upon
law and equity," the convention in force was also modified.
If, stated the fifth article, this convention should be rejected by
Peru or by Ecuador, or both, the arbitral convention of August 1,
1887, shall continue in force between the two nations, and Colombia
shall be at liberty purely and simply to adhere thereto within ninety
days, to be reckoned from her official ratification of such rejection.
The supplemental convention was ratified by the Congresses of
Peru and Colombia, but Ecuador.. abstained from any action what
ever, in consequence of which the Government of Peru, after a use
less wait of ten years, withdrew its ratification in January, 1904. Its
Government in that way gave notice to the Governments of Ecuador
and Colombia, which had not made use of the right reserved in
Article 5, to adhere to the arbitration of 1887.

38
§111. Prosecution of the Spanish Arbi
tration. i) Cornejo-Valverde Protocol of 1904 — The direct negotia
tions having then been broken off, there was a meeting on the 19th
of February, 1904, between D. Miguel Valverde, Minister of Foreign
Relations of Ecuador, and D, Mariano H. Cornejo, Plenipotentiary
of Peru. The laUer proposed, in the name of his Government, that
they should forthwith proceed with the arbitration of 1887, and re
quest His Majesty to send a royal commissioner to study the archives
at Quito and Lima and gather the necessary information. The Min
ister of Ecuador accepted the proposal but insisted that the pro
ceeding "should not imply, and could not imply, any alteration in
the conditions established by the treaty of 1887, and much less the
modification or renunciation of the titles and Briefs submitted to
the Royal Arbitrator by either party." This was confirmed by the
Plenipotentiary of Peru.
The Governments of Peru and Ecuador, therefore, besought of
the King of Spain the continuation of the arbitral proceeding and
the appointment of the commissioner. His Majesty complied with
the request April 27, 1904, designating for that duty, under the ap
pellation of "Special Commissioner," D. Ramon Menendez Pidal on
the 21st of November of the same year.
2) Arbitrations of Colombia with Ecuador and Peru. — On the
the 5th of November, 1904, Ecuador and Colombia entered into a
convention to settle the question of their boundaries, submitting to
the arbitration of the Emperor of Germany. Ecuador makes it
clear, in Article 7, that the territories in the eastern region, from
the course of the Napo river to the course of the Caqueta or Yapura
river, are not included in the arbitration submitted to the King -of
Spain, But, in another protocol, signed by Sres. Cornejo and Val
verde on the 27th of January, 1905, the former stated that those ter
ritories were embraced in the eastern region, the Royal Decree of
1802 having extended to all of them, and it was agreed to suspend
Ecuador's boundary arbitration with Colombia until that between
her and Peru should be concluded.
On the 12th of September, 1905, the Governments of Peru and
Colombia negotiated another convention relating to boundaries in
which the matter was submitted to the arbitration of His Holiness
the Pope, but with the covenant, in Article 2, that such arbitration

39
should stand subordinate to that between Peru and Ecuador pend
ing before the King of Spain, and that it should only be effective
in the event that territories claimed by Colombia should be ad
judged to belong to Peru.
3) Peru's Modus Vivendi with Colombia and with Ecuador. —
On the 12th of September, 1905, above referred to, Peru joined
Colombia in a modus vivendi until the conclusion of the arbitrations,
agreeing to establish two zones for provisional occupation, one to
the north of the Putumayo river for Colombia, and the other to the
south of the same for Peru (between the Cobuya and Cotuhe
rivers, inclusive).
On the 29th of January of that year a modus vivendi had already
been agreed upon between Peru and Ecuador, on the initiative of
the Spanish Commissioner, Sr. Menendez Pidal. He had stated that
he thought it would be an advantage to begin his labors with a con
ciliatory measure, to the effect that they should not maintain mili
tary garrisons in the Napo region, which had been the theater of
scenes of bloodshed, and that the two countries by this means would
demonstrate their good intentions towards each other and their
respect for the regulations prescribed by His Majesty. It was agreed
that Ecuador should retire to Quito the forces which she had main
tained in Aguarico, and Peru, to Iquitos, those which she had in
Torres-Causana, without, however, being understood by this action
as abandoning possession.
§IV. Claims Formulated by the Par
ties to the Spanish Arbitration.
When, in 1904, it was agreed to proceed with the Spanish arbi
tration, there had already been presented to His Catholic Majesty by
the high contracting parties the statements or Briefs in defense of
their rights, with the corresponding evidence.
The proceeding renewed, His Majesty designated the special
commissioner who was to go to America and appointed the com
mission charged with the examination of the question submitted for
the royal decision.
Later, on July 14, 1905, the Spanish Minister of State set a time
for the presentation of the final memorials, which in fact the parties
have already delivered, together with the documents they have
thought serviceable for proving their allegations.

40
i) Claims of Peru.
a) Brief. — In the Brief subscribed at Madrid on the 10th of
December, 1889, by D. Jose Pardo y Barreda, Charge d'affaires of
Peru, that power asked the Royal Arbitrator to decide :
1st. That the frontier between Peru and Ecuador ought to sepa
rate the territories which belonged, at the time of the independence,
to the Viceroyalties of New Granada and Peru.
2nd. That to the Viceroyalty of Peru belonged —
a) The territories of the Comandancia general of Maynas, in
conformity with the provisions of the Royal Decree of July 15,
1802; b) The territories of the District of Piura, of the Intendency of
Trujillo, and
c) The territories of the Gobierno of Guayaquil.
3rd. That the territory of the Gobierno of Jaen belonged to the
Viceroyalty of New Granada.
4th. That the Government of Peru accepts, on its part, the com
pensation* of the territories of the Gobiernos of Guayaquil and
Jaen; and,
5th. That, as Peru is not in possession of all the territories
which are hers by right, Ecuador is under obligation to restore those
which she unlawfully retains in her power.
And he, therefore, prays that there be established, as the boun
daries of the Republic of Peru, the line which unites the following
points : the Machala river ; the water-sheds of Saruma ; the Alamor
river and the ravine of Pilares ; the Macara. river, from the mouth of
the Alamor to its source in the Espindula ravine; the Canchis river
as far as its confluence with the Chinchipe ; the town of Paute ; the
Agoyan falls; the Eastern chain of the Andes, called successively
Cotopaxi, Cayamburu, Andaquias and Mocoa, and the Yapura river
from its source to the mouth of the Apaporis (Brief for Peru —
Ale gat o del Peril — p. 188).
b) Final memorial. — In its final memorial, subscribed June 1,
1906, by the Plenipotentiaries D. Mariano H. Cornejo and D. Felipe
de Osma, the Government of Peru states :
1st. That it does not countenance, in the slightest degree, Ecua
dor's pretension to the heirship of ancient Colombia ;

* Compensacian — used here in a technical sense, to indicate set off, or mu
tual relinquishment of claims, as appears hereinafter in the author's argu
ment. — Translator.

41
2nd. That it rejects absolutely, therefore, the treaty of 1829,
negotiated with Colombia and not with Ecuador ;
3rd. That this proceeding should be decided exclusively upon
consideration of the general principles of right, the agreements be
tween Ecuador and Peru and upon colonial law, to be consulted
only as a means of determining the extent of each of the contiguous
provinces ;
4th. That Peru, therefore, accepts the principle of colonial titles
as the basis for demarcation of boundaries, but not as title to re
covery, and, much less, as the basic principle of South American
nationalities ;
5th. That it rejects absolutely the absurd proposal to reconstruct
the Audiencias and Viceroyalties, because the colonial titles alone
are applicable to fix the frontiers of the colonial entities — that is, of
the provinces that have voluntarily constituted the present States ;
6th. That, on Peru's recognition of Ecuador's independence, she
recognized the legitimate exercise of sovereignty by which three
provinces had formed a new State and it is permissible only to dis
cuss the boundaries of those provinces, and,
7th. The powers of demarcation which may be conferred by a
boundary arbitration cannot be stretched so far as to change or re
construct a nationality freely chosen by the colonial circumscriptions
called Guayaquil, Jaen, Tumbes and Loreto.
His Majesty is, therefore, prayed "to reject, in express terms,
the demand made by Ecuador for restitution, and to fix the frontier
of the contiguous provinces, that is to say, the frontier between
Jaen and Loja, between Loreto (formerly Maynas) and Pichincha
and between Tumbes and Guayaquil in conformity with the line indi
cated in the Brief," which is reproduced (Memorial of Peru —
Memoria del Peru — vol. IV, p. 154).
The Brief for Peru (Alegato del Peru) comprises one1 volume of
text and two of documents (93), and the final Memorial (Memoria
final) comprises four volumes of text and seven of exhibits (253),
that is to say, a total of fourteen great printed volumes (346 docu
ments), accompanied by maps and photographic reproductions.
2) Claims of Ecuador.
a) Historical-juridical statement of 1892. — What might be called
the Brief for Ecuador {Alegato del Ecuador) is made up of a vol
ume published at Quito in 1892, comprising a Statement (Exposi-
cion) addressed to His Majesty by the Minister, D. Pablo Herrera.

42
and a Memorial on the facts and law {Memoria historieo-juridica) ,
written by Dr. D. Honorato Vasquez.
In his Statement Sr. Herrera maintains that the treaty of 1829
between Peru and Colombia is in force, and asks the Royal Arbi
trator so to hold and to order the Governments of Peru and Ecuador
to appoint the Commission to establish the divisionary line
in accordance with Articles 5 and 6 of that treaty, taking as a basis
the royal decrees creating the Viceroyalties or Audiencias instead
of that of July 15, 1802. He says that the attached Memorial of Dr.
Vasquez constitutes an "integral part" of his Statement and reserves
"the right to amplify and extend the arguments in favor of Ecuador
as circumstances may require."
Dr. Vasquez' Memorial of 1892 concludes by saying that, in view
of what has been set forth, "the Government of Ecuador prays
His Majesty, the Royal Arbitrator, to deign to decide :
"First. That the Governments of Ecuador and Peru shall ap
point, within a period to be fixed by His Majesty, the commission
provided for in Article 6th of the treaty of 1829, in order that the
divisionary line between the two States may be surveyed, rectified
and fixed upon the basis of the demarcation of the ancient Vice-
royalties of New Granada and Peru — a basis for demarcation con
forming with the territorial extent determined in the royal decree
that erected, in 1563, the ancient Audiencia and Presidency of
Quito, wholly incorporated in the Viceroyalty of New Granada, first
in 1717 and later in 1739, in consonance with the tenor of the titles
of that epoch, exhibited by the Colombian plenipotentiary who nego
tiated the treaty of 1829, when the articles concerning boundaries
were drawn up. On this basis the line claimed by Ecuador runs
as follows :
"The mouth of the Tumbes river in the Pacific Ocean, expressly
established in the treaty of 1829 ; — the course of that river as far
as the most southern point in that course; — a line to the Lamor
river; — the course of that river to its confluence with the Chira
river; — the course of the Chira to its confluence with the Macara
river ; — the course of that river to its source ; — from there the line
traced in the Guayaquil-Jaen section of the Brief (that is to say,
as far as Chuchunga, including the province of Jaen in Ecuador, see
page. 339) ;— from the 'embarcadero' on the Chuchunga, a line to the
east as far as Jeveros, so that that town lies within the Ecuadorian
f rontier ;— f rom Jeveros, another line in the same direction, which,
cutting across the course of the Huallaga and Ucayali rivers, con
tinues as far as the confluence of the Galvez (Ygarape-pichuna)
river with the Yavari, the course of the Yavari, as far as Tabatinga,
the point from which the Ecuadorian Government will treat con-

43
cerning territory, with the Government of the United States of
Brazil. "Second. That, on this basis, the two Governments can regu
larize the line by means of respective and reciprocal cessions of ter
ritory, observing, as to the rest, the provisions in the treay of 1829
for the demarcation of frontiers."
b) Final Memorial. — We understand this to be founded prin
cipally on the supposititious Pedemonte-Mosquera protocol of 1830,
since it claims, as the dividing line, the one established in that con
ference by the Plenipotentiaries of Peru and Colombia.
Leaving until later the explanation of those qualifications, we may
designate the Hne asked for by Ecuador in her final Memorial from
a consideration of the minute, or preliminary unsigned draft (only
the names of the supposititious signers appearing) which is inserted
in the Memorial of Peru (Documents attached to Memorial of
Peru — Documentos de la Memoria del Peru, vol. I, p. 194).
"The upper waters of the Maranon river, from the mouth of the
Yurati (Yavari?) until it meets the Guancabamba river, and, along
the course of that river, to its source in the Cordillera (mountain
ridge), and from there, taking a line to the Macara river in order
to reach the headwaters of the Tumbes river.v'
The Memorial alleges that the Peruvian Minister accepted this
line but substituted the mouth of the Huancabamba for that of the
Chinchipe river, which would mean leaving the province of Jaen in
Peru. That point was left pending further consideration.
As Ecuador has probably decided it in her own favor, we believe
she will ask for the whole of the line which she supposes was
proffered by Mosquera in order to include the province of Jaen,
claimed by her.

SPECIAL PART
A CONSIDERATION OF THE DIVERSE
QUESTIONS

SECTION FIRST
Intercolonial Boundaries

SPECIAL PART
A CONSIDERATION OF THE DIVERSE
QUESTIONS.

PRELIMINARY CHAPTER
Statement of the Case and Classification of the
Questions.
Summary:
I. Statement of the case. — 1. Geographical point of view : (a) line from
the Pacific to the source of the Macara river, (b) frontier of the
Province of Jaen, (c) frontier of the Amazonas region, (d)
synthesis of the diverse claims formulated. — 2. Legal point of
view. — 3. Historical point of view.
II. Classification of. the questions into two group's: as to (i) inter
colonial boundaries and (2) international boundaries.
§1* Statement of the Case.
Having given a general idea of the case, showing its antecedents
and its historical development, let us now consider the various ques
tions involved. To this end we shall begin by treating the case in
the concrete, according to the results of the method in which it
appears to have been presented and discussed in the present arbitral
proceeding. This case, in its very nature, is essentially juridical, since it deals
with a controversy between two States over their respective rights,
and should be determined, also, in accordance with right. But those
rights refer to territories which have passed through various vicissi
tudes of ownership and jurisdiction, and, for this reason, the case
is also geographical and historical.
Of these three aspects of the case, the first of importance to its
comprehension and decision is the geographical, because it is neces
sary first to know what territories are being spoken of and in what
the object in dispute consists.

48
i) Geographical Point of View. — In order the better to under
stand the differences existing between the lines of demarcation-
claimed by Ecuador and Peru in the present arbitration, we shall
divide the frontier' into three parts, omitting details of description
for the sake of clarity : first, from the Pacific coast to the source of
the Macara river ; second, the frontier of the province of Jaen, and,
third, the frontier of the Amazonas region.
a) From the Pacific to the source of the Macara. — Of the three
lines sought in the arbitration, two of them (separate) by Ecuador,
are alike in that they begin at the Pacific coast and terminate at the
source of the Macara river, in the first part of the frontier which
extends to the province of Jaen.
They conform also in following along the Macara from its source
until it is joined by the Alamor, and for some distance along the
Alamor at its upper waters, thus separating the Peruvian depart
ment of Piura from the Ecuadorian department of Loja.
They differ, however, in that Peru takes for the point of depar
ture in the Pacific the mouth of the Jubones or Machala, follows
along the course of that river as far as the point where her present
boundary terminates with it south of Guayaquil, and intersects, in a
straight line, from the point at which this boundary ends, in order
to unite it, through the water-sheds of Saruma, with the source of
the Alamor. The two lines claimed by Ecuador begin in the Pacific,
at the mouth of the Tumbes, and follow the course of that river, the
one first claimed intersecting the Tumbes, at its southernmost part,
to unite it by an artificial line (which runs through part of Paita)
to the Alamor, where that river doubles around the Celica ridge,
and the last line claimed continues along the Tumbes as far as its
headwaters and the source of the Alamor.-
From this it will be seen that Peru demands the preservation of
her present boundaries of the coast province of Tumbes with
Guayaquil (by the Machala) and with Loja (by the water-sheds of
Saruma), and the boundaries of her department of Piura with Loja
also (by the Alamor and the Macara). Ecuador's two lines mean
taking away from Peru nearly two-thirds of the littoral province, of
Tumbes, cutting through it by means of the river of that name ; and
the line first claimed means depriving her further of a piece of
Paita, the triangle formed by the Tumbes, the Alamor and the
straight line connecting them from north to south.
b) Frontier of the Province of lacn. — The two lines claimed bv

49
Ecuador connect the source of the Macara with the "embarcadero"
of the Chuchunga in the Maranon river, which is equivalent to
taking from Peru the whole of the province of Iain, which forms
an integral 'part of her, since, on the emancipation of that province,
it voluntarily incorporated itself in Peru.
The line first demanded by Ecuador as the frontier of that prov
ince connected the source of the Macara with the Huancabamba to
designate the west, abandoned that river on reaching the south, in
order to fix a lower boundary, and, intersecting the Maranon, took
the bank of that river for the east, for the purpose of including lands
which she believed to belong to this ancient province and reach the
"embarcadero" at Chuchunga. The line she finally claims is more
simple and moderate ; it runs from the Chuchunga along the Mara
non, takes in the Huancabamba at its mouth, follows it as far as its
source and connects with the Macara.
Peru, maintaining her right to retain the province of Jaen, asks
only the establishment of its northern boundary, connecting the
source of the Macara with that of Canchis in order to follow that
river to its confluence with the Chinchipe, the southern point of the
Amazonian frontier.
e) Frontier of the Amazonas region. — The Royal Decree-of July
15, 1802, constituted the Comandancia general of Maynas, which
it incorporated with the Viceroyalty of Peru, embracing therein all
of the region watered by the Maranon, or Amazonas, and its affluents
north and south — that is to say, the so-called Amazonas region.
In the present arbitration, Ecuador demands from Peru the
greater part of this fegion, having first claimed as frontier an arti
ficial line, nearly straight, below the Maranon from the "embarca
dero" at Chuchunga to the frontier of Brazil, at the point of con
fluence of the Galvez river with the Yavari. In her Final Memorial
she claims, as a dividing line, the Maranon itself from Chuchunga to
Tabatinga (the boundary point of Brazil).
Peru claims the entire Amazonas region, demanding, as her west
ern frontier with Ecuador, the line which begins with the Chinchipe
from the mouth of the Canchis and goes by the cordillera of the
Andes as far as the Caqueta or Yapura river, embracing all the ter
ritories of which the Comandancia general of Maynas was com
posed. Therefore, whether the northern part of the Amazonas region
is to remain the property of Peru or whether it shall pass to Ecua-

50
dor, depends upon the establishment of the line along the cordillera
of the Andes, or the line along the Maranon.
d) Synthesis of the diverse claims formulated. — The result of
the comparison between the frontier lines aspired to by Peru and
Ecuador was that Ecuador claimed that there should be turned over
to her: a great part of the coast province of Tumbes and a small
part pf the province of Paita, the whole of the province of laen
and an immense expanse of the Peruvian departments of Loreto
and Anw.onas, called by Ecuador the Eastern region, lying between
the Caqueta, or Yapura, river on the north, the cordillera of the
Andes, the Chinchipe and Maranon rivers to the west, Brazil to the
east and what Ecuador called her "Amazonian line," or the
Maranon river, to the south.
In the controversy must be included, however, the Ecuadorian
province of Guayaquil, because, although Peru recognizes that it
ought to continue to belong to Ecuador, this is only on condition
that Ecuador shall recognize that Jaen shall continue to be Peruvian,
the legal situation of both being similar.
2) Legal Point of View. — According to the Arbitral Conven
tion of 1887, His Majesty the King of Spain must decide as arbiter
of the right "the question of boundaries pending between the two
nations." What are those pending questions, and by what legal criteria, or
on what legal basis, should the Arbitrator decide them ? Logic would
seem to require that we should commence by studying them, inas
much as they affect the very competency of the judge to render a
decision; but, since they presuppose and require a full knowledge
of the elements and aspects of the whole problem, we believe that
they should be last in the order of our investigation and study, so
that the condition in which it was found when the arbitration was
initiated may be thoroughly understood.
It will instantly be apparent that, as this is an arbitration of right,
every idea of compromise is incompatible, and that the international
law is applicable, because there is to be decided a controversy be
tween wholly independent States.
The question being founded in international law, we shall have
to examine the bases set forth by the respective parties and arrive
at our opinions through the threefold viewpoint of the history of
the treaties, the doctrinary principles and the conditions prescribed
in the arbitration. The treaty of 1829 between Peru and Colombia

51
and the supposititious Pedemonte-Mosquera protocol of 1830 are
subjects for the most careful study because on them Ecuador mainly
depends for the justification of her aspirations, and Peru denies the
subsistence of the former and the authenticity of- the latter.
Furthermore, both parties adduce arguments based on colonial
law and Peru contributes others founded in modern political law.
Because of this, and as the question really requires it, it must be
considered in the light both of colonial and political law, although
from the viewpoint of international law as well, since only where
international law agrees with the precepts and principles of colonial
and political law can we accept their support in a controversy be
tween two sovereign peoples.
3) Historical Point of View. — It will be noted from what we
have said that this affair possesses an historical aspect so important
as to require a review of the entire history of the contending peoples
from the first demarcation of their territories by the Spanish sov
ereign down to the present status of their relations with regard to
boundaries. Ecuador claims the reconstruction of the ancient Audiencia of
Quito in its original demarcation, holding herself forth as its in
heritor because of its having once formed a part of the Viceroyalty
of Santa Fe and subsequently of the Republic of Colombia as
founded by Bolivar.. Peru insists that the primitive demarcation be
given no consideration, but, rather, that those existing at the time
of the independence be held as effective, and this not for the purpose
of dismembering the present States but to fix the boundaries of the
ancient provinces which gave them birth, denying Ecuador's heir
ship of the rights of Colombia (to which she was not herself en
titled) and defending her rights on the theory of her own institu
tion and conservation of her territorial sovereignty. And thus the
legal discussion is continually interwoven with history, except when
the doctrines or the texts of the treaties are considered, and, even
to interpret the texts of the treaties, their historical precedents must
be taken into account.

52
§11. Classification of the Question Into
Two Groups: As to (1) Intercolonial
Boundaries, and (2) International Boun
daries.
The general question of boundaries involves, then, diverse special
questions: legal, geographical and historical. How may these be
classifieu ' o the best effect for their explanation and examination ?
In our opinion, by dividing them into two groups, accordingly as
they refer to intercolonial boundaries or to international boundaries.
Even though Spain did not denominate her American possessions
as "colonies," calling them instead kingdoms, provinces and seign
iories of the Indies, we shall make use of the term "intercolonial
boundaries" for the purpose of designating those which separated
the different parts of her dominions, so that they may be distin
guished from those which separate, or ought to separate, the States
constructed from them, to which should be given the name inter
national boundaries.
From this point on we shall adhere to our division of the Special
Part into Two Sections.
For the purpose of determining what were the territories and
dividing lines of the distinct parts of the Spanish dominions, we
shall study, in the First Section, all the questions of law, geography
and history relating to the colonial epoch, without entering for
a moment into an estimate of their value in this effort to reach a
decision of the great question in litigation, although it will soon be
seen that they will be of the utmost value from the moment the prin
ciple of colonial uti possidetis appears to be accepted in whole or in
part. In this section.^we shall consider with the greatest care all
the points relating tp the Royal Decree of 1802, including those ad
vanced and discussed subsequently to the colonial period, such as the
points as to its validity, territorial contents and efficacy, but without
departing from this epoch or concerning ourselves with the weight
of that Royal Decree in the law of modern times.
And we shall take up for consideration in the Second Section
all legal, geographical and historical questions relating to the
present epoch, or, rather, to the epoch of free and independent
States, the territories and frontiers of which can only be determined
in accordance with international law as applied to the traditions of
the colonial regime and to the principle of the sovereign right Of

53
emancipated peoples to constitute and organize themselves into
bodies politic. The history of the treaties of Peru with Colombia
and Ecuador, the texts of those treaties, the general doctrine of in
ternational and special law of the Spanish-American States, and
that set up by both parties in the present arbitration are the
authorities to which we must refer in order to establish the interna
tional boundaries, deciding then whether they should be intercolonial
boundaries, as at present constituted, or otherwise.

SECTION FIRST
INTERCOLONIAL BOUNDARIES.

CHAPTER I.

Viceroyalties of Peru and New Granada.
Summary:
1. The question of boundaries considered with respect to the Colonial
regime ; historic periods.
II. First period: from 1S42 to 1717. — 1. Entire epoch of the Viceroyalty
of Peru. — 2. Districts and governments of the Audiencias: (a)
Audiencia of Lima, (6) Audiencia of Quito, (c) Audiencia oi
Santa Fe, (d) recapitulation. — i. The Bishoprics : (a) Bishoprics
of Lima and Quito, (b) Bishopric of Trujillo. (c) Missions.
III. Second period: from 1717 to 1802. — 1. Creation (1717), extinguish
ment (1723) and re-establishment (1739) of the Viceroyalty of
Santa Fe, or New Granada. — 2. The Bishoprics: (a) creation of
the Bishopric of Cuenca (1779) by segregation from that of
Quito, (b) territories and boundaries of the Bishopric of Tru
jillo in 1786. — 3. The Inlendency of Trujillo; the map of \792. —
4. Descriptive memorials and general maps.
IV. Third period : from 1802 down to the independence ; reincorporation
of the territories of Maynas and the Government of Guayaquil
in the Viceroyalty of Peru.
§1. The Boundary Question Consid
ered with Respect to the Colonial
Regime: Historic Periods.
If it has always been advantageous to know .which were the terri
tories and divisionary lines of the ancient colonial circumscriptions
in order to determine questions of boundary between stares c n-
th;u lived within tl.cin. their vtudv ; ccoi;,^
"¦- "' :.":e mon'vrt <\V>. m. 'M ^ne \v:* -
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-tructed

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55
For this reason, to avoid the intrusion of questions of one epoch
among those of another, to consider them with the criteria and
data of their respective periods, let us study the case as if the States
of Peru and Ecuador being non-existent, a controversy had been
provoked between Spanish authorities during. the colonial regime
and it had become necessary to settle it in accordance with the enact
ments of Spain.
We shall begin by determining the territories and general boun
daries of the Viceroyalties, distinguishing the three following
periods: the first, from 1542, the year in which the Viceroyalty of
Peru was created, to 1717; the second, from 1717, when the Vice-
royalty of New Granada was created, down to 1802, and the third,
from 1802, in which year, by virtue of various royal decrees, the
Gobiernos of Maynas, Quijos and Guayaquil were re-incorporated
into the Viceroyalty of Peru, down to the moment of Independence.
The first may be called the period of only one Viceroyalty, the
second the period of two Viceroyalties and the third the period of
re-incorporation, or of the royal decrees.
The territories and general boundaries of the Viceroyalties being
known, we shall pass to a study of those corresponding to the special
circumscriptions to which this case relates : the Comandancia gen
eral of Maynas (Amazonas region) and the provinces or Gober
naciones of Jaen, Guayaquil, Piura and Tumbes.
§11. First Period: From 1542 to 1717.
i) The Entire Epoch of the Viceroyalty of Peru. — Th& first
period, from 1542 to 1717, is that of a single South American Vice-
royalty. The paramount authority and the personal representation
of the King in Spanish America resided exclusively in the two Vice
roys — of Mexico (New Spain) and Peru (New Castile), who
were instituted by the Emperor Charles V in 1542 in accordance
with Law 1, Title 3, Book III, of the Compilation of the Laws of
the Indies, published in 1680.
In that same Code, particularly in Law 1, Title 2, Book V, are
embraced, under the denomination Peru, the districts of the Audien
cias of Panama, Lima, Santa Fe (New Granada), Charcas {Upper
Peru), San Francisco de Quito, Chile and Buenos Aires. That is
to say, the whole of South America, except the foreign colonies
and the Comandancia general of Caracas, a dependency of the
Comandancia of Santo Domingo.

56
So, then, all the territories now in dispute belonged in tfiis first
period to Peru. If the controversy over the boundaries had been
stirred up at that time, it would have been between audiencias,
bishoprics or governments of the Peruvian Viceroyalty. Let us see,
therefore, how it was internally divided, in its effect upon the
question before us.
2) Di tricts and Governments of the Audiencias. — The Au
diencias of Lima and Santa Fe were instituted by the Emperor
Charles V in 1542 and 1549, respectively. Between these, Philip II
established, in 1563, the Audiencia of San Francisco de Quito. The
Compilation of the Laws of the Indies specifies the territories and
confines of the three audiencias in 1680 in Book II, Title 15.
a) Audiencia of Lima. — As to the audiencia located at the City
of the Kings (Lima), the capital of the provinces of Peru, Law
5, says : "It may have for its district the coast from that city down
to the Kingdom of Chile exclusive, and up to the Port of Paita
inclusive, and, for inland, to San Miguel de Piura, Cajamarca,
Chachapoyas, Moyabamba and the Motilones, inclusive, and as far
as Collao, exclusive, along the boundaries outlining the royal
Audiencia of La Plata, and the city of Cuzco, with its boundaries,
inclusive, sharing the boundaries on the north with the Royal Au
diencia of Quito, on the south with the Audiencia of La Plata, on
the west with the Southern sea, and on the east with the provinces
yet undiscovered, accordingly as they may be established. * * *"
Law 1, Title 2, Book V, mentions, as embraced within the district
of that Audiencia, the Corregimientos of Cuzco, Cajamarca la
Grande, Santiago de Miraflores de Zana and the town of Chiclayo,
San Marcos de Arica, Collaguas, Andes del Cuzco, Villa de lea,
Arequipa, Guamanga, city of San Miguel de Piura and port of Paita
(a single corregimiento), and Castro- Virreina.
b) Audiencia of Quito. — At the city of San Francisco de Quito
(says Law 10, Title 15, Book II) is located another of our audien
cias. The law provides that "it may have for its district the Prov
ince of Quito, and along the coast towards the City of the Kings
to the port of Paita, exclusive, and, for inland, as far as Piura,
Cajamarca, Chachapoyas, Moyobamba and Motilones, exclusive, in
cluding in that direction the towns of Jaen, Valladolid, Loja,
Zamora, Cuenca, La Zarza and Guayaquil, with all other towns that
shall be within these limits or which may be founded therein, and
in the direction of the towns of Canela and Quijos, jt may have said
towns with all others that shall be found therein; and along the

&

57
coast towards Panama, as far as the port of Buenaventura, inclu
sive ; and for inland to Pasto, Popayan, Cali, Buga, Chapanchica
and Guarchicona, Because the other towns in the Gobernacion of
Popayan belong to the Audiencia of the New Kingdom of Granada,
with which, and with the Audiencia of Terra Firme, it may share
the boundaries on the north, and with the Audiencia of the Kings
(Lima) on the south, having for its boundary on the west the South
ern sea, and, on the east, provinces not yet pacified or discovered."
Embraced in the district of that audiencia, according to Law 1,
Title 2, Book V, above cited, were the Gobierno of Popayan, with a
governor and a law deputy (teniente letrado) "part of which
Gobierno is contiguous to the Audiencia of Santa Fe ; the Gobiernos
of the Quijos, of Jaen de Bracamoros and of Cuenca ; the Corregi
miento of Quito, that of the City of Loja, that of Zamora and the
mines of Zaruma, and that of Guayaquil."
c) Audiencia of Santa Fe. — At Santa Fe de Bogota, in the New
Kingdom of Granada, says Law 7, Title 15, Book II, is located an
other of our audiencias. This law provides that "it may have for its
district the provinces of the new Kingdom (of Granada) and those
of Santa Marta, Rio de San Juan and Popayan, except the
towns which from that province are designated as belonging to the
royal Audiencia of Quito, and, from the Guayana, or Dorado, it may
have all that did not belong to the Audiencia de la Espanola, and all
of the Province of Cartagena, sharing boundaries : on the south with
the Audiencia of Quito and lands undiscovered, on the west and
north with the Northern sea and provinces which may belong to the
Royal Audiencia de la Espanola, and on the west" (sic) "with the
Audiencia of Tierra Firme."
The aforesaid Law 1, Title 2, Book V, mentions, as in the district
of this audiencia, the captaincy governments of the provinces of
Cartagena, Santa Marta, Merida and Lagrita, of Trinidad and
Guayana, the Gobierno of Antioquia, the Corregimiento of Tocaima
and Vague (Mariquita), and that of Tunja.
d) Resume. — It results from these territorial descriptions taken
from the Compilation of the Laws of the Indies, published in 1680 :
1st. That the district of the Audiencia of Lima bordered on the
north on the district of the Audiencia of Quito, its divisionary line
being the northern line of the Corregimiento of Piura and Paita and
of the provinces of Cajamarca, Chachapoyas, Moyobamba and tbe
Motilones, until the line loses itself in the east in lands unknown.

2nd. That the district of the Audiencia of Quito bordered on the
south on the district of the Audiencia of Lima, as far as the said
Corregimiento of Piura and Paita, exclusive, and the provinces re
ferred to ; on the west, on the Pacific, as far as the Port of Buena
ventura inclusive; on the east, on the provinces still unpacified and
undiscovered, and, on the north, on the Audiencia of Tierra Firme
and Santa Fe, or New Granada.
3rd. That, within the Audiencia of Quito, remain, among other
territories, those of Guayaquil, Jaen, Loja, Cuenca, Quijos and
Canela. 4th. That the district of the Audiencia of Santa Fe, of the new
Kingdom of Granada, bordered on the south on the district of the
Audiencia of Quito and lands undiscovered.
5th. That between the territories of the Audiencias of Quito and
Santa Fe lay the great province of Popayan; that to the first be
longed the towns of Popayan, Pasto, Cali, Buga, Chapanchica and
Guarchicona and "the other towns of this Gobernacion" to the sec
ond. The office of Governor of Popayan was conferred by the King,
as in the district of the Audiencia of Quito.
3) The Bishoprics.
oj Bishoprics of Lima and Quito. — The Bishopric of the Kings,
of Lima, founded in 1541, was erected into an Archbishopric, under
the character or. title of Metropolitanate of Peru, in 1547, having for
suffragans the Bishoprics of Cuzco, Quito, Tierra Firme, Nica
ragua, Popayan and others that were created (D. M. P., No. 61).
In 1543, by command of the King, the lawyer (licenciado) Vaca
de Castro, of His Majesty's Council, and Governor of Peru, traced
the demarcation of the Bishoprics of Cuzco, Lima and Quito, mi
nutely determining their territories and limits. From his report it is
inferred that at the north the Diocese of Lima embraced the city of
Trujillo in the direction of San Miguel, the city of Frontera in the
Chachapoyas and the city of Santiago de Moyobamba, with all their
limits and jurisdictions ; and the diocese of Quito, from the city of
San Miguel and the entrance of the Bracamoros to the village of
Pasto, inclusive, which shared boundaries with the city of Popayan
(D. M. P., No. 63).
b) Bishopric of Trujillo. — In 1577 His Holiness authorized the
creation of the Bishopric of Trujillo, and, in the royal decree of
1611, it was ordered that this be divided with that of Quito, that of
Trujillo being constructed upon a portion taken from the Arch-

5^
bishopric of Lima, and, in view of its small resources, absorbing
another portion from the Bishopric of Quito, which ceded to that
of Trujillo the town of Frias, the city of San Miguel de Piura, the
city of Paita, the towns of Colan, Tumbes, Catacaos, Sechura, Copis,
Motupe, Jayanca, Pacora and the city of Jaen (D. M. P., No. 64).
c) Missions. — It should be noted also, with respect to the ecclesi
astical division at this period, that in 1687 the work of converting
the Indies was divided between the missions of the religious bodies
of Sap Francisco of Lima and those of the order of Jesuits of Quito.
The missions of the Franciscans having entered this territory, the
town of Andamarca, province of Jauja, and followed along the
Gran Paro, or Maranon river, as far as the towns of the Conibos, the
Jesuit missions extended from the Gran Cocama. (La Laguna) as
far as the said Conibos ; and, owing to a dispute over that limit,
it was decided that the Society of Jesus should have as far as the
town of Conibos inclusive, on the upper river, and from Conibos on
the lower river, towards the north, all the Indian nations which might
be found therein ; and the Franciscan Fathers, from the town at
which they made their entry on the lower river as far as Conibos
(Documents attached to the Brief for Peru — Documcntos del Ale
gato del Peril— No. 29).
§111. Second Period: From 1717 to 1802.
i) Creation (1717), Extinguishment (1723) and Re-establish
ment (1739) of the Viceroyalty of Santa Fe, or New Granada. —
This Viceroyalty was created by order of the King of April 29th
and the royal decree of May 27th, 1717, reconstructing, in the Au
diencia of the new Kingdom of Granada, the Audiencias of Quito
¦\:\d Panama, which were thereupon abolished, adding to it the Com
andancia of Caracas, which had been a dependency of the Audien
cia of Santo Domingo, and placing at the head of the new circum
scription a viceroy who should reside in the city of Santa Fe and
who should be Governor, Captain-General and President of the Au
diencia "in like manner and with the same powers" as the Viceroys
of Peru and New Spain (Mexico).
That Viceroyalty, not having produced the results hoped for,
chiefly from the aboii-hment of the audiencias (Quito being distant
more than 500 leagues from Santa Fe) and also from excess in out
lay and administrative ih: orders, was extinguished in 1723, leaving
matter* t> thev "¦£'¦• !;et' re it*- creation.

60
But, in view of the remonstrance of various communities in the
district of New Granada, based upon the decadence of those towns
and of the resolutions of the Supreme Council of the Indies of June
26, 1738, the King ordered, by royal decree of August 20, 1739, the
re-establishment of the Viceroyalty in conformity with the report of
that body.
In that decree the King states :
"I have resolved to establish anew the Viceroyalty of the new
Kingdom of Granada and have appointed, as- its head Lieutenant-
General, D. Sebastian de Eslava, * * * being at once President
of my royal Audiencia of the City of Santa Fe, in the said new
Kingdom of Granada, Governor and Captain-General of the juris
diction of that Viceroyalty and the provinces that have been added
to it, which are : the Island of Trinidad and Guayana ; the province
"of Cartagena, with the territory of its Captaincy-General; in the
province of Panama, Portovelo, Veragua and the Darien ; the prov
inces of the Choco, Kingdom of Quito, Popayan and Guayaquil,
Santa Marta, Rio del Hacha, Maracaibo, Caracas, Cumana, Antio-
quia and Rio Orinoco ; Island of Margarita, with all the cities, vil
lages and towns belonging to them ; * * * the Audiencias of Panama
and Quito to remain and subsist as they are in the same subordi
nation to and dependency upon this Viceroy as that maintained by
the provinces subordinate to the Viceroyalties of Peru and Mexico
with regard to their respective Viceroys."
The Viceroyalty of New Granada, then, stood constructed upon
the basis of this Kingdom by the aggregation of provinces belong
ing to the Audiencias of Quito and Panama, which were preserved,
and by other provinces mentioned, all subjected to the Viceroy oi
Santa Fe in the same manner as they had been to the Viceroys of
Peru and Mexico. Within the new Viceroyalty, and dependent upon
its Viceroy, the same royal decree established three Comandancias
generales: those of Panama, Cartagena and Caracas (D. M. P., No.
66). 2) The Bishoprics.
a) Creation of the Bishopric of Cuenca (1779) by segregation
from that of Quito. — At the request of the Bishop of Quito that a
new bishopric be formed because of the overburdening extent of his
own diocese, and after receiving the Pontifical approval, the Bishop
of Popayan was empowered to trace its demarcation, acting in asso
ciation with commissioners of the various authorities interested, and
the royal decree of June 13, 1779, was enacted to that end. That de-

61
cree instituted the Bishopric of Cuenca, as suffragan to the Arch
bishopric of Lima, embracing the three provinces of Cuenca, Loja
and Guayaquil and the towns and parishes of the Lieutenancy of
Alausi (D. M. P., No. 65).
There remained to the Bishopric of Quito all the territory that
may be seen in the "Description of the cities, towns and villages of
the Bishopric of Quito," published July 14, 1755, excepting those
three provinces and the lieutenancy (D. M. P., No. 67).
b) Territories and boundaries of the Bishopric of Trujillo in
1786. — The Bishopric of Trujillo in the Viceroyalty of Peru is fully
described in the topographical map made and dedicated to Charles
III by Bishop Fr. Baltasar Jaime on October 1, 1786, after a four-
year survey of his entire diocese along the paths which mark out
his journeys on this map, and which he says was traced, not only
from his own Observations, but from all the data he had pre
pared for a work on the history of that Bishopric, declaring that he
had made his map "with all exactness and precision."
The Bishop states, in the legend on his map, that his diocese ex
tends from north to south 475 leagues from Tumbes to the Santa
river, and from west to east 214, from Cape Blanco, in the province
of Piura, to the town of Cumbasa, in the province of the Motilones
de Lama.
According to this map, the Bishopric of Trujillo has, for frontier
provinces on the north, that of Piura, which begins beyond Tumbes
and borders on the province of Loja of the Bishopric of Cuenca ;
the province of Jaen, which borders on that of Cuenca in the same
Bishopric, and that of Chachapoyas, which borders the Missions
and province of Maynas in the Bishopric of Quito.
On the west, the frontier provinces of Sana (now Lambayeque)
and Trujillo along the Pacific coast below the province of Piura.
In the center, the province of Cajamarca, below that of Jaen, and
bordering on the East on the province of Chachapoyas.
On the south, in addition to the province of Trujillo, those of
Guamachuco and Pataz, bordering on the Archbishopric of Lima.
And, on the east, alongside of the province of Pataz, and below
that of Chachapoyas, stretch the converted territories (converted to
Christianity) of Guaylillas, Serra de Montafias and Pampa del Sac
ramento. 3) The Intendency of Trujillo; the Map of 1792. — On the es
tablishment of the system of intendency governments by the In-

62
tendents Ordinance of August 5, 1783, there was created in the
Viceroyalty of Peru the Intendency of Trujillo, converting the
ancient provinces or corregimientos into districts and placing at the
head of each an associate judge, to preside in the four so-called "mat
ters of justice, police, finance and war" (D. M. P., No. 155).
There is a "Map of the Intendency of Trujillo, Made Under the
Orders of the Most Excellent Sefior Viceroy, D. Francisco Gil y
Lemos, by D. Andres Baleato in the year 1792," in which are em
braced the aforementioned provinces of the Bishopric of Trujillo:
Piura, Cajamarca, Chachapoyas, Sana, Trujillo, Guamachuco and
Pataz, and alongside this the converted territories of Guaylillas,
Guanuco and Pampa del Sacramento. The Intendency borders on
the north on the provinces belonging to the Viceroyalty of Santa Fe
and on the south on the Intendency of Tarma, of the Viceroyalty
of Peru.
And, if we compare this Map of the Intendency of Trujillo of
1792 with the topographical map of the Bishopric of Trujillo of
1786, we shall see that they coincide with regard to the provinces,
except that the province of Jaen is not included in the intendency
because of its belonging to the Viceroyalty of Santa Fe; and they
coincide also as to the boundary of both entities, from which it may
be deduced that the Intendency of Trujillo was coextensive with
the Bishopric, with the exception indicated and a certain other con
crete exception of a different category.
4) Descriptive Memorials and General Maps. — In addition to
the "Description of the Cities, Towns and Villages of the Bishopric
of Quito" (1775), most interesting as it is, not only as to matters
ecclesiastical but as to political affairs as well, we have to cite other
descriptive memorials written at this period, which will serve to
illuminate the question.
There is the "Relation of the Status and the Political and Mili
tary Government of the Provinces, Cities, Towns and Villages in
the Jurisdiction of the Audiencia of Quito," written by the Marques
de Selvaalegre, President of that Audiencia, Governor and Captain
General of its provinces, for the most excellent Senor D. Jose Solis
Folch de Cardona, Viceroy-Governor and Captain-General of the
new Kingdom of Granada, by order of the latter, on September 13,
1754. Most minutely descriptive, the work proceeds to designate,
town by town, those which comprise the different circumscriptions
of Quito (the capital), Latacunga, Riobamba, Macas and Quijos,

63
Chimbo, Guayaquil, Cuenca, Loja, Jaen de Barcamoros, Maynas,
San Miguel de Ibarra, Otabalo and Esmeraldas (D. B. P., No. 28).
The Description of the Kingdom of Santa Fe de Bogota, written
by "one who is inquisitive and jealous of the State's welfare, one
who has managed the affairs of the Kingdom for many years," and
signed by D. Francisco Silvestre at Santa Fe, December 9, 1789.
This authority states, in the third chapter, that the Audiencia of
Quito consists of nine gobiernos and seven corregimientos, and, in
the succeeding chapters describes them, there appearing in the docu
ment before" us the seven Gobiernos of Quito, Popayan, Guayaquil,
Jaen de Bracamoros, Maynas, Yaguarsongo and Quijos, Canelos
and Macas (D. M. P., 68).
Among che documents presented by Peru are also other descrip
tions which refer particularly to certain determinate territories.
These we shall take up at an opportune time.
In the same manner must we treat the special maps, citing now
only those which refer to the general question: D. Pedro Mal-
donado's map of the province of Quito and contiguous territory,
published at the order and expense of His Majesty in 1750; the
Jesuits' map of the "Quitensis" Province (1751) ; Map of the north
ern part of the Audiencia of Lima, from the Atlas of Tomas Lopez,
Paris, 1758; Map of the Audiencia of Quito by D. Francisco
Requena, 1779, and the two already discussed of the Bishopric and
Intendency of Trujillo, of 1786 and 1792.
Those maps and descriptive relations help us to ascertain the dif
ferent territories, to know which towns comprised the several juris
dictions and to determine their limits from the terminal towns in
cases in which the boundaries are not set forth.
§IV. Third Period: From 1802 Down to
the Independence; Reincorporation of
the Territories of Maynas and Govern
ment of Guayaquil in the Viceroyalty
of Peru.
During this period, various of her territories which had passed
to the Viceroyalty of Santa Fe, or New Granada, oh its establish
ment, were restored to the Viceroyalty of Peru.
By Royal Decree of July 15, 1802, the Gobierno and Comandan
cia general of Maynas was formed out of the territories of the

64
Amazonas region, taken from the Viceroyalty of Santa Fe and
added to that of Peru at the time of the creation, with coextensive
territory of the Bishopric of that name.
By another royal decree (July 7, 1803), it was ordered that the
Gobierno of Guayaquil be segregated from the Viceroyalty of Santa
Fe and added to that of Lima, and, in 1806, it was declared that
that aggregation had been consummated.
Those royal decrees were made known and obeyed, confirmed by
other dispositions, and they continued to be respected and complied
with until the moment of independence.
In compliance with the royal order of May 6, 1813, the Viceroy
of Peru, by agreement with the Audiencia and Provincial Deputa
tion resident at Lima, made the division of their jurisdiction into
judicial circuits and districts, which was communicated to the Min
ister then in office on July 31, 1814. Figuring in this division were
the seven provinces of Lima, Tarma, Arequipa, Guamanga, Huan-
cavelica, Trujillo and Guayaquil and the two Gobiernos of Chiloe
and Maynas, those "nine provinces" comprising fifty provincial
judicial districts and fifty-six judicial circuits of first instance
(Memorial of Peru — Memoria del Peru — Title III, p. 226).
We shall say no more at this point about that period, nor make a
resume of what has been set forth in regard to the provinces to
which the present controversy relates, because we propose to take
up for discussion, as to each, the particular phases and legal situa
tion down to the Independence.

CHAPTER II.
The Gobierno and Comandancia general of Maynas.
(The Drafting and Tenor of the Royal Decree of 1802.)
Summary :
I. Drafting of the Royal Decree of July 15, 1802.— 1. Reports of the
Presidency of Quito. — 2. Proceedings of the Supreme Council
of the Indies.
II. Tenor of the Royal Decree. — 1. Formation of the Gobierno and
Comandancia-general of Maynas. — 2. Unity of the Missions. —
3. Creation of the Bishopric of Maynas.
III. General character of that sovereign act.
§1. Drafting- of the Royal Decree of
July 15, 1802.
The immense territorial expanse lying between the Andes and
Brazil and watered by the Maranon, or Amazonas, and its northern
and southern affuents — which, for this reason, we may term the
Amazonas region, and with which corresponds what Ecuador calls
"her Eastern region," and Peru, "her Departments of the Ama
zonas and Loreto," — is the territory referred to in the Royal Decree
of Charles IV, dated July 15, 1802, on the establishment of the
Gobierno and Comandancia general of Maynas and the Bishopric
of that name; and, the legal situation created., by that Royal
Decree being that in which the Amazonas region found itself at the
moment of independence, hence the necessity of examining care
fully that sovereign disposition, commencing by showing upon
what studies and reports it was based.
i) Reports of the Presidency of Quito  With the creation of
the Viceroyalty of Santa Fe, the Amazonas government found
itself actually isolated and without sufficient forces to resist the
invasions of Portuguese colonists, because of the obstacles to com
munication over such great distances and across the Andes, whereas,
for Peru, communication was easier, as it was by means of navi
gation of the Maranon and its affluents.

66
This abundantly appears from the "Description of the Routes"
(in the expedition from Quito to dislodge the Portuguese), written
by the Governor of Maynas and Engineer in Chief of the Boun
dary Commission, D. Francisco Requena, on September 15, 1777,
by order of the President of that audiencia, D. Jose Diguja, and
transmitted by the latter to the Minister, D. Jose Galvez, by way of
accounting for the difficulties met with in complying with the orders
of the ^ing to repel the invaders, and as supporting his hopes of
succeeding therein by following the newly projected route passing
through Peru (D. M. P., No. 87).
The same Minister (D. Jose Galvez), by virtue of the royal order
of February 15, 1779, directed the President of Quito to inform
himself as to the erection, at Borja, capital of the province of May
nas, of a bishopric which should comprise the missions on the upper
and lower Maranon ; arid the President at that time, D. Jose Garcia
de Leon y Pizarro, called upon D. Francisco Requena for the
special information and data respecting those territories accumu
lated by the latter in his capacity of Commissioner charged by
the King to rectify the boundary demarcation about the Maranon
with the possessions of the Crown of Portugal.
In his report, D. Francisco Requena submits the "Description of
the Country which should Comprise the New Bishopric of Missions
Projected for Maynas," signed at Quito, October 31, 1779, and ac
companied by a map drawn "from the best observations and notes
obtainable." It was proposed to unite in that Bishopric all the mis
sions of Maynas, of Sucumbios, Lamas, Canelos, the parishes of
the Gobierno of Quijos and the parish of Santiago de las Montafias,
fixing its capital at Omaguas. As- it proceeds to give the location
and dependency of each town and the reasons it had for uniting
under one jurisdiction, that description is of the utmost import
ance to a knowledge of that country (D. M. P., No. 90).
In the midst of a further survey of the towns and villages em
braced in his employment, Requena received orders from the Presi
dent of Quito to revise his report, if, in the light of his more recent
observations, he should find anything to rectify or add to it. He
made such a revision, amplifying his report with new data and pro
posing, for the capital, the town of Laguna, in his "Consectary to
the Earlier Description," dated at Tabatinga, March 12, 1781 (D.
M. P., No. 90).
On the 18th of November f' me same year the President of

67
Quito transmitted to Madrid those works of Requena, accepting
them as his own for the purposes of the report he had been directed
to submit.
Demands on the Presidency of Quito for reports continued to
come in from the court at Madrid, not only as to the project for
the Bishopric, but also concerning the temporal government of that
country, to aid in strengthening its hands and preventing smug
gling. On the 18th of May, 1791, during an interim in the government,
the Audiencia of Quito reported, transmitting the description writ
ten February 20, 1785, by D. Francisco Requena in compliance with
a royal order of 1784, accompanying it by a report from D. Jose
Checa, Governor of Quijos, and another by D. Juaquin Fernandez
Bustos, an officer of the division of boundaries of the Maranon, and
offered to forward the reports which had been as"ked for from the
director of the tax on monopolies (Director dc rentas cstancadas)
and the royal officials of Quito, concerning the project of D. Fran
cisco Requena, and also the opinion rendered by Senor Requena on
February 19, 1789, as to another project formulated by D. Francisco
Calderon, a resident of that city.
On July 26, 1794, the audiencia was reminded of its offer to
transmit the above-mentioned documents, and the Viceroy of Santa
Fc was directed to inform himself on the subject. The Viceroy
replied, on the 19th of April, 1795, saying that, because of lack of
material, he was not in a position to familiarize himself with the
questions involved and suggesting that "no one can do this better
than Sefior Requena." On the 21st of June of the same year the
audiencia transmitted the documents offered, claiming for the re
ports of Sr. Requena that, in its opinion, they were "the most fun
damental and judicious" (D. B. P., Nos. 33, 34 and 35).
2) Proceedings of the Supreme Council of the Indies. — The
Supreme Council of the Indies being now in charge of the case,
agreed, at the request of the Attorney-General (Fiscal) of Peru,
that the matter should be taken in hand by Senor Don Francisco
Requena, who, after seventeen years of service as Governor of
Maynas and Royal Commissioner of Boundaries, had risen to be
Field Marshal and one of the ministers of that exalted body.
Don Francisco Requena, as such Minister, made a report (in-
forme) on the 1st of April, 1799, reiterating his opinion of March
29th, preceding, with regard to the Missions of the Ucayali river.

68
This opinion (dictamen) covers three principal points which he has
developed with the greatest thoroughness (D. B. P., No. 31).
In the first point he considers what should be done with the
Gobierno of Maynas and states that that Gobierno is composed
solely of mission towns, lying far apart ; that it is separated in every
direction from the more settled and cultivated provinces and costs
much to sustain ; that it was established by conquest and was pro
gressing u^der the care and help of the Viceroys of Peru until the
creation of the Viceroyalty of Santa Fe, whereupon the Missions
began to fall into decay, "because, either by reason of scant reflec
tion, or, perhaps, but little knowledge of the conditions, the limits
had been fixed between the two Viceroyalties;" that the first con
querors made their entries by starting from Lima and some ad
vantage was obtained by using the route from Peru, the enterprises
undertaken by way of the rough mountainous passes to the east
of Quito having invariably failed; that in forgetfulness or aban
donment of the royal jurisdiction, the Gobierno was committed to
the charge of the Jesuit Fathers; that the province of Maynas was
deteriorating as a result of the encroachments of the Portuguese
along the Maranon river, to which no opposition whatever had been
made, and that, when the attempt was made from Quito, in 1776,
to check this crowding in, it was of no avail and entailed enormous
expenditures. For which reasons, "the most effective and necessary
measure to be taken concerning the Gobierno of Maynas and
Comandancia general of those missions is to make it a dependency
of the Viceroyalty of Peru," extending the Gobierno and Coman
dancia general, not only along the Maranon river to the Portuguese
frontiers, but also along those rivers which flow into the Maranon
itself at its northern banks, up as far as the points at which they
cease to be navigable, since that vast stretch of country is only ac
cessible and passable by means of the navigation of its rivers.
In his second point he devotes himself to the religious orders to
which ought to have been committed the work of the missions, de
claring that their decadence began on their separation from the
Government of Peru, and reached its lowest extreme with the ex
pulsion of the Jesuits in 1776, when the missions were placed in
charge of priests ignorant and wholly unfit and of religious bodies
of different extraction acting under no common system and pos
sessed of no adequate means. He proposes, therefore, that those
missions be given into the care of the apostolic missionaries of the

69
College! of Ocopa, who already had the Mission of Huallaga and
Ucayah and had demonstrated their competence. And thus all the
missions, with the Gobierno of Maynas, being thus subordinated to
the Viceroy of Lima, "could better combine. the propagation of the
Evangels with the ceremonies and security, of the State."
The third point is that relating to the creation of the Bishopric
of Maynas and is based upon the necessity of securing a degree of
unity to the spiritual government of that region and upon the dif
ficulties encountered by the different bishoprics on which many
towns depend for guidance, as shown by the fact that they had never
been visited by 'their respective bishops.
To summarize, said D. Francisco Requena, "the creation of the
Bishopric, good missionaries and the subordination of the Governor
of Maynas to the Viceroy of Lima are the three principal needs of
the moment, and which, as a fundamental basis; will facilitate all
the others that in the future must be provided for the civilization
of those people, the security of the frontiers, for the commerce of
the missions with the provinces of Peru and some future profits for
the Royal Exchequer."
The Fiscales of the Supreme Council of the Indies, as well the
Fiscal of Peru as that of New Spain, favored this opinion (D. B.
P., Nos. 32 and 33) ; and the Council, in its turn, on the 28th of
March, 1801, recommended the approval thereof because of the
sound foundations on which it rested, because of the circumstances
of actual eye-witnessing, which gave them strength, and the neces
sity for providing a remedy for such numerous evils, adding that, if
His Majesty would agree, it would devise the means for the reali
zation of "a project so attractive to religion and the State." The
King agreed with the Council, using the formula, "as it appears,
with an eye also to the interests of the Accountant-General' s office"
(D. B. P., No. 34).
The matter passed into the jurisdiction of the Auditor-General
and the Fiscal, and, in complete accord therewith, the Council of
the Indies, on December 16, 1801, proposed the means for carrying
into effect what had been ordered, suggesting, first, that decrees bv-
directed to the Viceroy of Lima, the Viceroy of Santa Fe and to
the President of Quito providing that "they shall consider as sepa
rated from this province and as reunited to the Viceroyalty of
Peru, the Gobierno of Maynas, whose boundaries should extend, not
only along the lower Maranon as far as the frontiers of the Por-

70
tuguese colonies, but also along those rivers emptying into the
Maranon on its northern bank, as far up as the points at which
they cease to be navigable, * * * that is, the temporal and
spiritual government of those missions shall embrace all of that
low and vast stretch of country passable by means of the navigation
of its rivers * * *" The King thereupon decreed ¦ "como
parece" (as it appears) (D. B. P., No. 35).
In conformity with all that had been proposed and agreed to, the
Royal Dt-.ree of July 15, 1802, was promulgated and communicated
to all civil and ecclesiastical authorities interested (D. B. P., No. 37;
andD. M. P., No. 91).
§11. Tenor of the Royal Decree.
The Royal Decree of July 15, 1802, begins with a resume of the
proceeding as it relates to the temporal government of the Maynas
missions and determines the three points set forth in Requena's opin
ion, as we are now about to observe in the copy of the decree di
rected to the Viceroy of Peru (D. M. P., No. 91).
i) Formation of the Gobierno and Comandancia general of
Maynas. — "I' have resolved," says the King, "that there shall be
segregated from the Viceroyalty of Santa Fe and from the prov
ince of Quito and aggregated to that Viceroyalty (that of Peru)
the Gobierno and Comandancia general of Maynas, with the towns
of the Gobierno of Quijos, except the town of Papallacta, because
all these are located on the borders of the Napo river, or in its im
mediate environs. This Comandancia general shall extend, not only
along the lower Maranon river as far as the frontiers of the Por
tuguese colonies, but also along all the other rivers emptying
into the Maranon on ifs northern and southern banks, such as the
Morona, Guallaga, Pastaza, Ucayale, Napo, Yavari, Putumayo,
Yapura and other less considerable rivers, as far up in each as the
point at which, because of its cataracts and inaccessible rapids, it
ceases to be navigable. There shall also remain to the said
Comandancia general the towns of Lamas and Moyobamba, in or
der that, as far as possible, it may be coextensive with the ecclesias
tical and military jurisdiction over those territories."
And he adds : "To which end I command ye that the Gobiernos
of Maynas and Quijos being, as they now are, attached to that Vice-
royalty (Peru), ye assist them with such measures as ye may deem

71
necessary and called for by the Comandante general, tending not
only to the advancement and maintenance of the towns and safe
guarding of the missionaries, but also to the security of that domain,
preventing their invasion by vassals of the Crown of Portugal, and
appointing such subordinate military officers and deputies to the
Governor as may appear to ye necessary for the defence of those
frontiers and the administration of justice."
2) Unity of the Missions. — The Royal Decree then provides that
the missions and curacies of all the towns "comprising the
jurisdiction prescribed for the aforementioned Comandancia gen
eral and the hew Bishopric of Missions," shall be placed in the care
of the Apostolic College (of the Propaganda of the Faith) of Santa
Rosa de Ocopa of the Archbishopric of Lirna, ordering the estab
lishment of hospices for the missionaries of that college at Chacha
poyas and Tarma to be supplied by the Convent of Guanuco and
the curacies of Lamas and Moyobamba.
3) Creation of the Bishopric of Maynas. — "I have likewise re
solved," continues the Royal Decree, "to erect a Bishopric among
said missions, suffragan to that Archbishopric, to which end there
will be obtained from His Holiness the requisite apostolic brief, the
new Bishopric to be composed of: all the converted territories now
served by the missionaries of Ocopa along the Guallaga and Ucayale
rivers and the mountain passes through which they are entered and
which are embraced within the Archbishopric of Lima; the parishes
of Lamas, Moyobamba and Santiago de-las Montanas, belonging
to the Bishopric of Trujillo ; all the missions pf Maynas ; the par
ishes of the province of Quijos, except that of Papallacta ; the
curacy of Canelos, on the Bobonaza river, served by the Dominican
fathers ; the missions of the religious Order of Mercy, in the lower
region of the Putumayo river, belonging to the Bishopric of Quito,
and the missions known as the Sucumbios, situated in the upper
regions of the same river and along the Yapura river, which were
in charge of the Franciscan Fathers of Popayan."
And the Royal Decree concludes by fixing the residence of the
new Bishop at the town of Jeberos, establishing his endowment and
providing for the deposit in the royal treasury of the Viceroyalty
of Peru of the tithes gathered throughout the whole district of the
Bishopric. The request having been transmitted to Rome, a pontifical de
cree was returned approving the erection of the new Bishopric of

72
Maynas in conformity with the wishes expressed. D. Juan Antonio
Montilla was first named as Bishop, but, he having declined, Fr.
Hipolito Sanchez Rangel was appointed to the new diocese in May,
1804 (D. B. P., No. 39).
§111. General Character of that Sover
eign Act.
As may be seen, the Royal Decree of July 15, 1802, was fhe
project of Don Francisco Requena on which he riad been working
since 1777, and which concluded with his opinion of 1779 proposing
the administrative unification of the Amazonas region, that is tp say,
the region formed by the Maranon and its affluents on the north
and south, with a government for temporal and spiritual matters
within the Viceroyalty of Peru, thus rectifying the error committed
on the creation of the Viceroyalty of New Granada and providing
an organization more advantageous to the interests of both tem
poral and spiritual regimes.
It has been objected that that unification was of a military and
ecclesiastical character only, and that, in treating of the Coman
dancia general, the Royal Decree mentions towns and not terri
tories. But these objections do not take into consideration the fact
that the decree says "Gobierno" (government) "and Comandancia";
that, although the military epithet predominates in use, the same
occurs in the cases of the governments of the so-called Captaincies-
General of Guatemala, Venezuela and Chile, and no one doubts that
they were civil governments as well as military commands; that
the mention made of the towns (pueblos) included the idea of their
respective jurisdictions, and that the territories were expressly indi
cated by their rivers, which is the most effective way of designating
them in unpopulated regions.
In the preamble of the Royal Decree, which we have omitted, is
discussed the spiritual and temporal advancement of the missions,
the generic name given to those Indian territories already, or to be,
converted; and it is clearly stated that the subject under considera
tion is that "the Gobierno and Comandancia general of Maynas shall
be dependent upon the Viceroyalty of Peru, segregating from that
of Santa Fe all the territory which comprised them (the missions
of Maynas), as likewise other lands and missions contiguous to those
belonging to Maynas along the ' Napo, Putumayo and Yapura
rivers."

73
It speaks, moreover, of the union of the two ancient Gobiernos of
Quijos and Maynas under the new government of the last named ;
of commercial interests, and of needs, not only for defence, but for
advancement of, and for the administration of justice in, the towns ;
and the idea of temporal government is contradistinguished from
that of spiritual within a territory common at once to the missions,
the Comandancia and the Bishopric.
The detailed discussion of the evidence we shall adduce to estab
lish the force and effectiveness of the Royal Decree of 1802 will
confirm our contentions that the Gobierno and Comandancia gen
eral of Maynas embraced every sphere of temporal government.

CHAPTER III.
The Gobierno and Comandancia general of Maynas.
(Territories Embraced)
Summary: I. The territories of the Gobierno and Comandancia general of Maynas
were identical with those of the Bishopric, although designated
in a different manner.
II. Gobierno and Missions of Maynas. — 1. Description by the Marques de
Selvaalegre, President of the Audiencia of Quito, 1754. — 2. De
scription of the Bishopric of Quito, 1775. — 3. Description by
Requena, 1779. — 4. Description by Silvestre, 1789. — 5. Descrip
tion by Bishop Rangel, 1814.
III. Gobierno of Quijos. — 1. Description by the Conde de Lemus. Presi
dent of the Council of the Indies, 1608. — 2. Description by Basabe,
Governor of Quijos, 1754. — 3. Description by the Marques de
Selvaalegre, 1754. — 4. Description of the Bishopric of Quito,
1755. — 5. Royal decree of 1772. — 6. Requena's opinion, 1799. —
7. Description by Silvestre, 1789. — 8. Requena's opinion, 1799 —
9. Royal Decree of 1802. — 10. Description and census made by
Bishop Rangel, 1814. — 11. Resume: points of certainty and points
of doubt concerning the Gobierno of Quijos; Missions along the
Napo river.
IV. Special consideration of Canelos and Macas. — 1. Canelos. — 2. Macas.
V. The entire region of the Maranon and its affluents, in general.
VI. Lamas and Moyobamba.— 1. Requena's report of 1779.— 2. Requena's
Consectary of 1781. — 3. Requena's opinion of 1799.
VII. Missions along the Ucayali river. — 1. Requena's opinion of 1799 —
2. Description by Bishop Rangel, 1814.
VIII. Santiago de las Montafias.
IX. Missions along the Putumayo (upper and lower river).— 1. Descrip
tion of the Bishopric of Quito, 1755—2. Requena's report of
1799. — 3. Official communications of the Governor of Mavnas.
1803 and 1805.
§1. The Territories of the Gobierno
and Comandancia general of Maynas
Were Identical with Those of the Bish
opric, Although Designated in a Dif
ferent Manner.
The circumscription of the Gobierno and Comandancia general of
Maynas, according to the Royal Decree of 1802, comprised: 1st, the
ancient Gobierno of Maynas ; 2nd, the Gobierno of Quijos ; 3rd, all

75
the territories of the Maranon and its affluents, and, 4th, the towns
of Lamas and Moyobamba. That is to say, the new politico-admin
istrative entity was formed by the union of the two Gobiernos of
Maynas and Quijos, already in existence, including the whole
Amazonas region, to which were added Lamas and Moyobamba,
which belonged to Peru.
Those territories are the same that comprised the Bishopric of
Maynas, although the Royal Decree of 1802 enumerated them in
greater detail in order to form certain ecclesiastical unities and to
indicate the different bishoprics which were erected upon them.
The decree mentions the missions of Maynas and the parishes of
Quijos, Lamas and Moyobamba, and, instead of describing the
Amazonas region by a generic term, names expressly Canelos, San
tiago de las Montaiias, the converted territories of the Huallaga and*
Ucayali rivers, the missions of the lower Putumayo and the missions
of the upper part of the same river and the Yapura.
We have now seen that the creation of the new circumscription
of Maynas was in obedience to the idea of a threefold unity — of
temporal government, spiritual government and missions. This
idea has revealed itself clearly in all that we have set forth and
especially in the phrase as to the "advantage of making the Coman
dancia coextensive with the new Bishopric," which we find in the
Requena report of 1799 and also in the Poyal Decree of 1802.
The edicts and orders published by the Governors of Maynas
bear in their preambles the names of the governments corresponding
to the territories mentioned in the civil as well as the ecclesiastical
sections of that Royal Decree. For example: "Don F. de T.,
Governor of the Province of Maynas, Comandante general of its
missions on the Maranon river and the rivers affluent thereto on
the right and left, that is, the Huallaga, Ucayali, Morona,
Pastaza, Bobonaza, Napo, Putumayo, Yapura and others; of the
Gobierno of Quijos; of the parishes (cities or provinces) of Moyo
bamba, Lamas and Santiago de las Montaiias," etc., as in the forms
used by Don Diego Calvo in 1803, Don Tomas de Costa Romeo in
1809 and Don Jose Noriega in 1816 (D. B. P., No. ;82).
Bishop Rangel, of Maynas, in replying on the 26th of March,
1816, to this Governor Noriega, who had notified him of his de
parture from Moyobamba for Lamas, said to the Governor : "Never
theless, during the presence of the proprietary Governor within the
limits of his government, and this being coextensive (confrontando)

76
with the limits of my own government, l should not avail myself
of any incident of an authority other than your own" (D. M. P.;
No. 133).
The territories embraced in the : Gobierno and Comandancia
general of Maynas being the same as those of the Bishopric; the
descriptions of the ecclesiastical jurisdiction df those territories
are of great importance, and especially that made by this same
Bishop Rangel in 1814, after his visit to his diocese. It clearly
shows the extent of the Gobierno of Maynas at the last moments of
the colonial regime.
That description is found in a letter addressed by the Bishop, at
Moyobamba, on the 9th of May, 1814, to the Intendent of Trujillo,
accompanying the census of population made up by the Bishop from
the lists of persons confirmed in the church. That most important
description begins by saying: "This Gobierno and this Diocese
comprise," and ends with the following words: "Here you have,
Mr. Intendent, all of the Bishopric and Gobierno of Maynas, be
cause each has the same boundaries"— most convincing proof of
the territorial unity of which we have been speaking (D. B. P.,
Nos. 76 and 77).
We proceed now to determine in detail the territories embraced
in the Gobierno and Comandancia general of Maynas, following
the order in which they are set forth in the Royal Decree of 1802,
when this politico-administrative circumscription was made, and
completing it with the more concrete circumscription of the
bishopric.
§11. Gobierno and Missions of Maynas.
The ancient Gobierno of Maynas was the basis of that which was
formed by the Royal Decree of 1802.
i) Description by tbe Marques de Selvaalegre, President of
the Audiencia of Quito, 1754 (D. B. P., No. 28).— In this official
description, addressed to the Viceroy of Santa Fe, the Marques de
Selvaalegre, states that the Gobierno of Maynas extends over al!
the territory of the missions that were established there by the
Jesuit Fathers. Those missions, he says, extend over a great stretch
along the beautiful banks of the Maranon river, which runs through
all the territory included in this Gobierno, the northern and south
ern terminal points whereof, however, have not yet been examined,

77
being in possession of savages and infidels. It is confined on the
east by countries belonging to the Crown of Portugal.
He then mentions thirty-four towns (all bearing religious names,
because founded by missionaries), and states that all of them, as well
as certain smaller ones, are under the authority of the Governor
who styles himself as of Maynas, and who is appointed by the Vice
roy of Santa Fe and has a salary of 400 pesos (Spanish dollars),
the duties of the office being exercised by D. Alejandro de la Rosa,
designated by that audiencia. The Gobierno of Maynas has no
lieutenant; it names the alcaldes ordinarios and governors of In
dians in the respective towns.
2) Description of the Bishopric of Quito, 1755 (D. M. P., No.
67). — The Gobierno of Maynas, it says, is composed of twenty-four
towns; the names we omit to avoid prolonging the relation.
At the head of that Gobierno is the city of San Francisco
de Borja, the latitude of which is south 4 degrees, 28 minutes and
east of the meridian of Quito 1 degree, 54 minutes. The principal
town of the missions (of Jesuit Fathers), in which their Superior
resides, is Santiago de la Laguna, situated on the eastern bank of
the Huallaga river.
"These towns are found situated in the vast expanse through
which flows the famous Maranon river, as far as the memorable
line of demarcation between the territories of the Spanish and Lusi-
tanian (Portuguese) Crowns, the extent of both of these domains be
ing so vast that, from the 'embarcadero' on the Napo river to the Para
river, the measurements made in recent years by order of that Royal
Audiencia, show a distance of 1,356 leagues. For the particulars
as to this river one had to depend on the map made by the Padre
Samuel Frizt in the year 1690, drawn, though it was, upon the
basis of ancient charts which were not wholly correct, until de
La Condamine, the scientist and member of the Royal Academy cf
Sciences at Paris, produced his chart of the course of this great
tiver, which stretches clear across South America. By its use, this
scientist was able to trace an exact delineation of the course of the
river and to make his astronomical and physical observations, set
forth in his book entitled 'Extracts from the Diary of a lourney
from Quito to Para.' The geographical notes in this work give
sufficient material for a clear idea of this entire country. The num
ber of its inhabitants converted to Christianity and spiritually sub
ject to this Bishopric, is reputed to be 14,000 souls, more or less,
who have never been blessed by the salutary presence among them
of the Most Reverend Bishop of Quito."

3) Requena's Description of 1779 (D. M. P., No. 90).'— Says
Requena in his report of 1779: "The Gobierno of Maynas now
has the missions of Borja, San Ignacio, Santiago de la Laguna,
Xeveros, Chayavitas, Paranapuras, Yurimaguas, San Regis de
Lamistas, Muniches, Caguapanas, Chamicuros, Andoas, Pinches,
Urarinas, Yameos, Omaguas, Pevas, Loreto, Santa Barbara de
Iquitos, Napeanos, Santa Maria, El Nombre de Jesus and Capucuy."
And it describes in detail each of those missions and towns with
sufficient notes as to its history, location, means of communication
and products. It states, for instance, that San Francisco de Borja
is a city, Santiago de la Laguna is the residence of the Superior
of the Missions, and that Omaguas is the capital of the Gobierno.
All these missions depended at that time upon the Bishopric
of Quito.
4) Description by Silvestre, 1789 (D. M. P., No. 68).— This
states that the Gobierno of Maynas is maintained by the King. "It
is the district of the Audiencia of Quito and its Bishopric extends
far below the Maranon river. On this river are located several for
tifications opposing and maintaining the bounds of the Portuguese
of Para and Brazil, for which purpose they are garrisoned by small
detachments of troops under the command of the Comandancia
general of Quito. For the most part, its towns are Indian missions,
formerly in charge of the Jesuits, but now in charge of secular
priests. "It borders on Jaen de Bracamoros, Quijos and Macas, on the
lands of many savage tribes on both banks of the river, and finally
on the Portuguese frontier.
"Its present Governor is D. Francisco Requena, who put through
the settlement of boundaries with the Crown of Portugal on the
occasion of the last treaty."
5) Description by Bishop Rangel, 1814 (D. B. P., No. 77).—
"The two Missions of Maynas, or the Maranon, comprise the follow
ing towns :
"The lower mission : Loreto, on the Portuguese frontier ; Camu-
cheros, now in ruins; Cochiguinas, still in existence; Pevas, Oran,
Iquitos, Asuncion del Nanay, Omaguas, San Regis and Orarinas.
"The upper mission : Laguna, Chamicuros, Yurimaguas? and Mun
iches at the end of the Guallaga and at the mouth of the Paranapura ;
Balsa-Puerto, a new settlement ; Xeveros, the capital ; Chayavitis,
Cahuapanas, and, near the Pongo (Ford) of Mansariche on the

79
Maranon, La Barranca, Borja, the first capital, and Santiago de las
Montanas ; Canelos is merely a scattering settlement made up of the
overflow from the other towns."
"And, on the upper Pastaza," continues Bishop Rangel, "the
towns of Andoas, at or near its confluence, Pinches and Santander."
§111. Gobierno of Quijos.
The Royal Decree of 1802 expressly declares to be segregated
from thq Viceroyalty of Santa Fe and the province of Quito and
attached to the Viceroyalty of Peru and the Comandancia general of
Maynas "the towns of the Gobierno of Quijos, except that of Papal-
lacta, because of their situation on the borders of the Napo river
or in its immediate vicinity." Let us see, then, what constituted the
Gobierno and which were the towns referred to by that Royal De
cree. /) Description by the Conde de Lemus, President of the Council
of the Indies, 1608 (D. M. P., No. 74).— In his description of the
province of Quijos, dated at Madrid, February 16, 1608, the Count
of Lemus, President of the Council of the Indies, says that the
gobernacion of that name was forty leagues long and fifteen wide.
bounded on the north by the province of Popayan, on the south by
the Yaguarsongo, on the west by the cordillera (ridge) and on the
east by the unknown provinces that share bounds with Brazil ;
that that gobierno was founded in 1559 by Gil Ramirez de Abalos,
having in its beginning a population of more than 30,000 Indians,
and that it was ruled over by a governor, chief magistrate for the
province, three lieutenants, eight alcaldes ordinarios and sixteen
regidores. The gobierno, he adds, is divided into four cities, occupied
by Spaniards, and many Indian villages (seventy-three tribal sub
divisions). Those cities are Baeza (head of the Gobernacion),
Avila, Archidona and Sevilla del Oro (formerly Nuestra Senora del
Rosaria, in the province of the Macas).
He then describes them, informing us, for instance, that Baeza
extended over a space of four leagues in length and four in width,
and that each of the others covers an area of three or four leagues
each way; that is to say, the cities and their respective spheres of
control.

80
2) Description by Basabe, Governor of Quijos, 1754 (D. M. P.,
No. 75). — D. Jose de Basabe, Governor of Quijos, acting under su
perior orders, drew up, at Macas, May 1, 1754, an account of the
provinces under his jurisdiction as Governor and Captain-General
thereof. The Gobernacion of Quijos, he says, begins at the Royal Cor
dillera of the Andes, and, at a distance of two and a half leagues,
lies a town named Papallacta. Touching upon its parish district is
Mazpa; then comes Baeza, which, in former days, was a most
populous city, but at this time in almost complete decay, and then
come the city of Archidona and the towns of Mizagualli, San Juan
de Tena and Napo.
Taking boat on the Napo river, he continues, one arrives at
Santa Rosa, province of Zumaco, in which is situated the city of
Avila. He mentions besides, as belonging to the province, the towns
of San Juan de Cotapino, Limpia Concepcion, Nuestra Senora de
Loreto, San Salvador and San Jose de Mote.
The Governor also gives the distances between each town and
concludes this first part of his description by saying: "The fore
going relates to the ancient settlements; let us now take up the
Mission." What follows shows what constituted the mission of the Napo
river and speaks of the province of Canelos, mentioning the town
of that name, finally describing the province of Macas, referring
to the city of that name and the towns of Zufia, Paira, Copueno,
Aguayos and Zamagulies.
He brings his work to an end with the remark that the facts set
forth are from his personally acquired knowledge "while occupying
the office of Governor and Captain-General of said provinces."
3) Description by the Marques de Selvaalegre, President of
the Audiencia of Quito, 1754 (D. B. P., No. 28).— In this general
description of the provinces of the Audiencia of Quito, signed by
its President, September 13, 1754, and submitted to the Viceroy of
Santa Fe, is contained the description of the Gobierno of Quijos
in terms similar to those appearing in that of D. Juan de Basabe,
which was the occasion of his own work.
Beginning with the province of Macas, the Marques de Sel
vaalegre says that to the east of the town of Riobamba "lies the city
of Macas, belonging to the Gobierno of Quijos," that it holds within
its jurisdiction eight towns, of which he specifies seven (San Miguel

81
de Narvaez, Baraona, Juan Lopez, Sufia, Paira, Copueno and
Aguanis). He then describes "the situation of Quijos, which comprises the
greater part of this Gobierno," enumerating the towns in the man
ner we have observed in the description by Governor Jose de Basabe.
He speaks later of "the mission which the Jesuit fathers have es
tablished in that continent and named the mission of the Napo
river." Towards the end he says that, "going from the province of Quijos
and Sumaco to this province of Quito, one passes through that of
the Canelos in which is found the town of that name, located on
the banks of. the Topo river."
And> in conclusion, the Marques states that "all the provinces
referred to are subject to the Governor of Quijos and Macas,"
which office pays a salary of 1,300 pesos and is then occupied by
D. Jose Basabe y Uzquieta. This Governor, he adds, is provided
with no lieutenant but has the naming of governors and magistrates
for the Indies "in the forementioned towns throughout his juris
diction." 4) Description of the Bishopric of Quito, 1775 (D. M. P., No.
67). — This description serves to make more clear those which have
gone before, classifying the towns with regard to their dependence
as to spiritual jurisdiction.
"The Gobierno of the Quijos and Macas," it states, "comprises
these two territories." * * * The first, or Quijos, is bounded
on the north by the Gobierno of Popayan, on the east by the
Aguarico and on the west by the Corregimientos of Quito and Ta-
cunga. The second, Macas, borders on the east the Gobierno of
Maynas, on the south that of Jaen de Bracamoros and on the. west
the Corregimientos of Riobamba and Cuenca.
Quijos is made up of the two cities of Archidona and Avila, each
with its own parish priest. To the jurisdiction of Archidona be
long the six towns of Papallacta, Baeza, Maspa, Misagalli, Tena and
Napotoa; to the jurisdiction of Avila, the six towns of Concepcion,
Loreto, San Salvador, Moto, Cotapino and Santa Rosa.
The Macas division of the Gobierno, the capital of which is the
city of Sevilla del Oro, is composed of two parishes, that of Macas
and that of Sufia. The parish of Macas has under its jurisdiction,
in addition to Macas, which is the city of Sevilla del Oro, the four
towns of San Miguel, Baraonas, Yuquipa and Juan Lopez. The"

82
parish of Sufia comprises the town of that name and the three ad
joining towns of Paira, Copueno and Aguayos.
j) Royal Decree of 1772. — One of Ecuador's supporters cites,
with reference to the Padre Vacas Galindo, a royal decree of
September 3, 1772, dividing in two the Gobierno of Quijos
and Macas, and a royal order of November 14th of the same
year, appointing. D. Hipolito Mendoza Governor of Macas. There
were, then, in 1772, according to Ecuador's defence, three Gobier
nos : Borja, or Maynas, Quijos and Macas.
We are unacquainted with the text of the royal decree
supposed to have made such a division. It would be necessary
to see it to give it due appreciation, for perhaps it is limited merely
to the organization of some small subordinate government, and, even
so, it is difficult to imagine the need of such in view of the situation
to which Macas had been reduced, as shown by the above descrip
tions. The description given subsequently by D. Francisco Sil
vestre (in 1789), as we shall see ui a moment, includes Macas in
the Gobierno of Quijos.
6.) Requena's Report of 1779 (D. M. P., No. 90.)— Don Fran
cisco Requena, in his report and description of October 21, 1779,
says: "The Gobierno of Quijos now comprises (a ljttle before the
Macas provinces were taken from it, he adds in a note) three
parishes, with various attached towns: those of Archidona, Avila
and Papallacta. The first two should belong to the Bishopric
of Maynas and the third should remain in the Diocese of
Quito, because there lie between it and that city only twelve leagues
of populated country, while seventy leagues of desert waste lie
between that parish and Archidona, the capital of the Gobierno of
Quijos." Archidona and Avila, continues Requena, are the two
provinces into which the territories of that Gobierno are divided.
He then enumerates in each the towns of their respective parishes.
The Mission of Canelos, he adds, composed in ancient times of the
towns of Chontoa, Caniche, Poaya and Canelos, is now far ad
vanced in its decline, being reduced to this single last-named town,
which should really belong to the new Bishopric of Maynas, unless
it is desired that the mission should be lost utterly by being con
tinued under the Bishopric of Quito, from which it lies distant over
eighty-five leagues of depopulated country, most difficult for inter
communication.

83
7) Description by Silvestre, 1789 (D. M. P., No. 68.).— In
describing the Viceroyalty of New Granada, December 9, 1789, D.
Francisco Silvestre includes, in a single Gobierno, Quijos, Canelos
and Macas, saying that it belongs to the District of Quito and the
Bishopric of that name, and the King so disposes of it. This
gobierno borders, towards the east and the Maranon river, on the
province of Popayan and the Aguarico river and lands of the civi
lized tribes of Indians, and on the Corregimientos of Latacunga,
Ibarra, Maynas, Jaen de Bracamoros, Loja, Riobamba and Cuenca.
It comprises the missions of Sucumbios and that of the Napo river,
which empties into the Maranon.
8) Requena's Opinion of 1799 (D. B. P., No. 31).— D. Fran
cisco Requena says that, in this opinion, the new Bishopric "ought
to cover the towns of the Gobierno of Quijos, except Papallacta,
which are located in the two small provinces of Avila and Archi
dona, towns which are in the neighborhood of the "embarcadero" on
the Napo river, the town of Canelos on the Bobonaza river," etc.
9) Royal Decree of 1802. — This decree expressly includes in
the Bishopric "the parishes in the province of Quijos, except that
of Papallacta, the curacy of Canelos on the Bobonaza river served
by the Dominican Fathers," etc.
io) Description and Census by Bishop Rangel, 1814 (D. B. P.,
Nos. 76 and 77). — In his description, Bishop Rangel states that "the
province of Quijos and Avila comprises the towns of Archidona,
Napo, Napotoa and Santa Rosa, all on the banks of the Napo river,
and, in the center of the province, along the small ravines, the
waters of which are tributary, the towns pf San Jose, Avila, Loreto,
Concepcion, Cotapino, Payamino, Suno and Capuany, also bor
dering on the lower Napo where it empties into the Maranon, and,
half way down the course of that river, on its bank, one comes to
the towns of San MigUel and El Nombre de Jestis."
In the census of population he includes the towns of Canelos,
Archidona, Napo, Napotoa, Santa Rosa, Cotapino, Concepcion,
Avila, Loreto, Payamino, Suno, San Jose and Capucti.
n) Resume: Points of Certainty and Points of Doubt Con
cerning the Gobierno of Quijos; Missions of the Napo.— Com
paring the descriptions referred to, we see that all are in accord in
assigning to the Gobierno of Quijos the provinces Or districts of
Archidona and Avila and the missions of the Napo river, differing
only in that some include Canelos and Macas while others do not.
The towns mentioned as dependencies of the cities of Archidona

84
and Avila figure in the map as inclosed within a triangle, the
shorter side of which is the cordillera of the Andes and the two
greater sides the Coca and Napo- rivers. In a pass through the
cordilleras one comes upon the town of Papallacta, which was ex
cluded from the Comandancia general of Maynas by the Royal
Decree of 1802, and immediately afterwards can be seen the name
of Mana, the first town of this Gobierno, and the names of Baeza
and QuijOs, which were once cities. Farther along the other towns
mentioned appear, more and more compactly grouped as they ap
proach the confluence of the Coca with the Napo; and, from that
point of confluence, follow the missions at a distance from the river,
the last towns appearing being Capacui, El Nombre de Jesus and
San Miguel.
The Marques de Selvaalegre, in his description of 1754, states
that the mission of the Napo, established by the Jesuit Fathers,
covers a most beautiful country, divided into two parts. To the right,
descending from Archidona, are the rivers Napo and Curaray; to
the left, between the Napo and the Putumayo, the country is
densely mountainous. The Indians located at the right are wild,
savage and of many tongues ; those to the left are entirely tractable
and speak the same language. The audiencia, he adds, tried the
year before to construct a fort on the Napo river "to prevent the
introduction of illicit traffic with the Portuguese, who, from the
Para river and along the Maranon to the Napo, were attempting
to establish trade relations as far as this province."
Below the triangle we have indicated, south of the Napo, lies
Canelos, and, farther down, passing the Fastaza, is found — or,
rather, was found — Macas. The difference? we have observed in
the descriptions of the Gobierno of Quijos concerning Macas and
Canelos force us to consider specially those territories.

§IV. Special Consideration of Canelos
and Macas.
Ecuador maintains in her defence that the Comandancia general
of Maynas did not embrace the territories of Canelos and Macas
because the Royal Degree of 1802 did not specify them at the time
of its creation and because they did not belong to the Gobierno of
Quijos.

85
i) Canelos. — In the descriptions of 1754 by Basabe, the Governor
of Quijos, and by Selvaalegre, President of Quito, as well as in that
of D. Francisco Silvestre in 1789, we have seen Canelos referred
to as part of the Gobierno of Quijos.
D. Francisco Requena, in his report of 1779, says that "the Mis
sion of Canelos" had been reduced to the town of that name, and,
to prevent its utter loss, advised its transfer from the Bishopric of
Quito, the capital of which lay eighty-five leagues away over un
populated country, to the new Diocese of Maynas. In his Consectary
of 1781, he advises that there be included in this new Bish
opric "the Gobierno of Quijos, embracing therein the parish of
Canelos" (D. M. P., vol. Ill, page 283) ; and, in his opinion of
1799, after suggesting the provinces of Avila and Archidona, he
proposes "the town of Canelos on the Bobonaza river" as a com
ponent part of that Bishopric.
The Royal Decree of 1802 does not specify that town in speak
ing of the Comandancia of Maynas, but expressly includes in the
Bishopric the "curacy ot Canelos on the Bobonaza river, served by
the Dominican Fathers."
In one of his sentences in the description of 1814, Bishop Rangel,
while enumerating the upper missions of Maynas, says that "Cane
los is merely a scattering settlement made up of the overflow of
other towns," and includes it in his census of the Bishopric.
And Frey Antonio Jose Prieto, missionary priest of Canelos and
endowed also with civil authority, on the 8th of October, 1814,
affirms as we shall see in the chapter following, that "the town of
Canelos belongs to the jurisdiction of the Governor of Quijos."
From all this data we are convinced that Canelos in fact belonged
to the Gobierno of Quijos. But, even supposing it did not belong
to it, but, instead, to Maynas or some other Gobierno, there can be
no doubt whatever that it formed part of the Bishopric of Maynas,
the territory of which was identical with that of the Comandancia
general, as has been shown.
If the Royal Decree of 1802 expressly designated Canelos in or
ganizing the new Bishopric, it did so because of the necessity of indi
cating the different ecclesiastical jurisdictions from which were tak
en the towns to be incorporated into it ; and so we see that "the
curacy of Canelos" is mentioned as a dependency of the Bishopric
of Quito and served by the Dominican Fathers in distinction from
the. other curacies and missions which depended on other prelates,
as in the case of the parishes of Lima and Trujillo. which were

8rj
served by the missionaries of Ocopa, or by the Fathers of Mercy,
or by Franciscans.
In drawing up the Royal Decree of 1802, no means were available
for making a detailed designation of towms, and certainly Canelos,
in its insignificance, did not merit designation to the exclusion of
others. A general scheme was devised by which there was to be
assigned to the Comandancia of Maynas the whole of the country
wateret1 by the Maranon and its affluents. One of those affluents is
the Bobonaza river on which Canelos is located. And then Canelos
was included in the Comandancia general of Maynas without re
gard to whether it should belong to the jurisdiction of the Gobierno
of Quijos.
a) Macas. — We have seen how the territory of Macas figures as
a part of the Gobierno of Quijos in the description by the Conde de
Lemus in 1608, in those of the Governor of Quijos and of the Presi
dent of Quito in 1754 and in that of the Bishopric of Quito in
1755. According to Ecuador's defence, the Gobierno of Quijos was di
vided into two parts by the royal decree of 1772 one constituting
Quijos and the other Macas, without prescribing the extent of either;
but, in the description of the Viceroyalty of New Granada, by D.
Francisco Silvestre, in 1789, there appeared only one Gobierno of
Quijos, Canel°s and Macas, with a single Governor appointed by
the King.
From the descriptions referred to, it may be gathered that no
towns remained in the territory of Macas; that all were destroyed
by the Indians. The name figures in the maps at the headwaters
of the Morona, between the Pastaza and the Paute, all three affluents
of the Maranon. This geographical situation, in the light of the
Royal Decree of 1802, is enough to enable us to consider the terri
tory of Macas as a part of the Comandancia general of Maynas,
§V. The Entire Region of the Mara
non and its Affluents in General.
The Royal Decree of 1802, after establishing the Comandancia
general of Maynas on the basis of the union of the ancient Gobiernos
of Maynas and Quijos, in a general way determined the extent of
the new Comandancia, declaring that to be not only along the lower
Mardndn river as far as the frontiers of the Portuguese colonies,

87
but also along "all the other rivers emptying into the Maranon
on its northern and southern borders, such as the Morona, Guallaga,
Pastaza, Ucayali, Napo, Yyarri, Putumayo, Yapura and others of
lesser importance, as far up in each as the point at which, by reason
of its waterfalls and rapids, it ceases to be navigable" (D. M. P.,
No. 91).
This is identical with what was proposed by the Supreme Coun
cil of the Indies, in conformity with the Requena opinion of 1799
(D. B. P., No. 31).
It was not necessary to be more explicit in order, with the
utmost clearness to fix definitively the extent of the Comandancia
general of Maynas. The entire Amazonas region, watered by the
lower Maranon as far as the Portuguese colonies and by all its
affluents on the north and south, was embraced in that politico-
administrative entity, in dependency upon and forming a part of
the Viceroyalty of Peru. It is preposterous to suppose that the new
government could exercise its functions and powers only on the
rivers and along their borders, while the expanses of territory lying
between them, isolated and cut into sections by the affluent rivers,
remained under the government of the Presidency of Quito and the
Viceroyalty of Santa Fe.
So, then, all question as to what territories pertained to tbe Co
mandancia general of Maynas may be resolved by ascertaining from
the map those which are embraced in the area gridironed by the
Maranon and its more or less important affluents.
§VI. /Lamas and Moyobamba.
The Royal Decree of 1802 incorporated into the Bishopric of
Maynas the parishes of Lamas and Moyobamba, belonging to the
Bishopric of Trujillo; and, in order "to make the jurisdiction" of
the new Bishopric "coextensive" with that of the Comandancia
general, attached to the Bishopric the towns mentioned, speaking
of them as then belonging already to the Viceroyalty of Peru and
as separated from its othe*r provinces.
Let us see what were those groups of towns, by reference to the
Requena descriptions, consulted in drawing up that Royal Decree.
i) Requena's Report of 1799 (D. M. P., No. 90).— As shown
by that report, the Missions of Lamas were in charge of the Jesuits
and dependent upon Quito, but, when that religious order was driven

88
out, they were incorporated into the Bishopric of Trujillo, because
nearer to that city than to Quito.
The missions of Lamas consisted of five towns : Lamas (the
capital, in which resided the principal magistrate, appointed by the
Viceroy at Lima), Morro, Tabalosos, Amasifueno arid Cumbaza,
scattered along the Cumbaza river as it flows toward the Huallaga,
and along the latter to the Maranon. These had to be attached to
Maynas, not only because of their spiritual needs but for commercial
convenience. 2) Requena's Consectary of 1781 (D. M. P., No. 90). — In this
amplification of his earlier report, Requena states that he has come
into possession of better information concerning Lamas and pro
ceeds as follows to make his description more precise:
In the early days, Lamas was a gobierno incorporated within the
Corregimiento of Chachapoyas, the territory of which was then di
vided into t.vo small provinces: those of Lamas and Moyobamba,
each under a lieutenant.
The first, Lamas, had two parishes : those of the city of Lamas
(where a cabildo''' was located) and Tarapoto, and, in connection
with these, the three small churches Tavalosos, .San Miguel del Rio
and Cumbaza. In the five settlements referred to there were 420
families, of which 200 were white.
The second, Moyobamba, contains two more parishes: Moyobam
ba, with the dependent churches of Uquiguas and Orongos ; and
Soritor, with the dependent churches of Yoanari, Toe, Avisao,
Yantalo and Nijaque. In these nine settlements there were nearly
700 residents, for the most part white.
3) Requena's Opinion of 1779 (D. B. P., No. 31.)— With the
spiritual government of the missions of Maynas, says Requena in
his opinion, should also be entrusted to the College of Ocopa (a
most necessary step in the interest of the missions) the jurisdiction
over the parishes of Lamas and Moyobamba, they being parts of the
Subdelegacion of Chachapoyas, Bishopric of Trujillo, and situated
in inaccessible mountainous country.
Thus, he adds, there would be established a cordon of hospices,
*'A Cabildo was a chapter of a cathedral or collegiate church; ylso tho
name given to the meeting place and session of such chapter; also deviated
the membership of a religious body, or an organization of 1a\men for re-
ligious purposes in a town. The term is also sometimes applied to an
lynnldinieuto or municipality as on page 157 (Dicciovurio 1-inriilopcillco, by
Zerolo).— -Translator.

89
running through Lamas, Moyobamba, Chachapoyas, Hualillas,
Guanuco and Tarma, reaching as far as Ocopa, providing bases from
which assistance could be extended to the zones of operation in re
ducing the Indians to Christianity.
SVII. Missions Along- the Ucayali.
We now complete the description of the Comandancia general of
Maynas (created by the Royal Decree of 1802) with a description
of the Bishopric contained in that decree, which designated expressly
the towns and missions along the affluents of the Maranon, all, as we
have said, comprised in this Comandancia.
The Royal Decree provided that the new Bishopric should be
made up of "all the converted territories now served by the mis
sionaries of Ocopa along the Guallaga and Ucayali rivers and along
the mountain passes through which they are approached, and which
are in the jurisdiction of the Archbishopric of Lima."
At that time there lay along the Huallaga the upper missions of
Maynas and others which came from Moyobamba and Lamas. Be
tween the Huallaga and the Ucayali, and on the farther side of the
latter, new missions had been started, which it was necessary to
maintain for the general welfare.
/) Requena's Opinion of 1799 (D. P.. P., No. 31).— The con
quest, says Requena, of the river Ucayali and all its affluents from
its mouth at the Maranon should be undertaken as proposed by him.
This is necessary for the conversion of the Indian tribes which
occupy the surrounding territory and for the preservation of the
missions of Maynas, it appearing that the Christianized Indians
would frequently leave the missions and rejoin their infidel brethren
on the Ucayali, and that the settlements were always subject to in
vasion by the savage tribes in that region.
From the very year, 1779, in which I established myself in the
town of San Joaquin de los Omaguas, almost opposite to the fore-
mentioned mouth of the Ucayale, I was apprehensive of the harm
that could be done by such savage neighbors. They were not
slow in giving proofs of their intentions, attacking me in that town
with a force in canoes, and then passing up the Maranon as far as
the town of Laguna with the purpose of forcibly seizing and carry
ing away their fellow Panos tribesmen and committing depredations
on all property encountered in their course.

90
This conquest of the Ucayale will carry with it other important
advantages affecting the status and preservation of that domain.
The Ucayali river pursues its ramifications throughout the whole
of the Viceroyalty of Peru, extending through the jurisdiction of
Lima, Guamanga, Cuzco and even La Paz; and it has been the
constant endeavor of the Portuguese at all times to extend their
dominion to those parts. Once they have penetrated the Ucayali
region, it would be most difficult to dislodge them and would entail
a great drain on the riches of Peru.
These were some of the reasons advanced by Requena to bring
about the formation of the Comandancia general of. Maynas.
2) Description by Bishop Rangel, 1814.— The Royal Decree
of 1802, having been carried out, Bishop Rangel, in describing his
Diocese of Maynas in 1814, gave an account of the missions on the
Huallaga and Ucayali, saying of the latter: "The Ucayali region
is but recently reclaimed from paganism. Sarayacu, the capital,
Bepuana, Cunibos de Canchahuaya, Sehipibos de Cuntamana,
Sehiplbos del Rio Pisgui and several other points, lost or recently
gained, composed the department."

§VIII. Santiago de las Montaiias.
The Royal Decree of 1802 expressly includes the parish of San
tiago de las Montanas immediately after those of Lamas and Moyo
bamba, all three having belonged up to that time to the Bishopric
of Trujillo.
The settlement of Santiago de las Montanas was annexed for
temporal government to the Gobierno of Jaen when the Corregi
miento of Yaguarsongo was abolished in 1623 (D. M. P., Nos. 145
and 146). Situated' at the confluence of the Paute, or Santiago,
with the Maranon, there can be no doubt that the settlement became
a part of the Comandancia general of Maynas in accordance with
the Royal Decree of 1802, not only because that decree speaks of
its curacy, but also because of the general principle of having the
Comandancia general comprise the entire region of the Amazonas
rivers. It thus passed into the jurisdiction of the Comandancia with
the unpacified territory lying between those rivers over which it
bar! jurisdiction.
'.Vv find most interesting what Requena says in his report of

91
1779 of Santiago de las Montanas as to his plan to have that town
included in the projected circumscription of Maynas.
The city of Santiago de las Montanas, he says, lies at the mouth
of the river of that name, which river collects all the waters in the
eastern water-sheds of the cordillera of the Andes, in the jurisdic
tion of- the Gobierno of Cuenca and Corregimiento of Loja, and
empties into the Maranon at the entrance of the Pongo de Man-
seriche. In those days that city was reduced to a small vicinage of occu
pation, acknowledging subordination to the Governor of Jaen, and,
in spiritual affairs, tp the Bishop pf Trujillo, who had never visited
the settlements.
The many streams gridironing the Maranon from Santiago to
Jaen hindered frequent communication between the cities ; and so
it was that only once a year did the inhabitants of the former locality
go into Jaen to sell their produce and pay the government dues.
But, on the other hand, they were able to maintain constant com
munication with Borja or Omaguas and could be better cared for
by the Governor of Maynas.
The settlement of Santiago, once incorporated into the Gobierno
and Bishopric of Maynas, a vast field would be opened up for the
missions, rich gold deposits would be found about the ancient city
of Logrofio and an easier route established for the inhabitants of
the mountain districts, permitting transportation Of produce from
the Maranon region, which is now lost to commerce.
Such a measure would operate toward success in the conversion
of the uncivilized Indians and those who had reverted to savagery
along the borders of, and in the ravines about, the Santiago river,
which in former times belonged to the ancient Gobernacion of Yagu
arsongo. In the earlier days of the conquest there were many
Spanish cities and towns in that territory, while today but few set
tlements are found and those scarcely merit the name of hamlet (D:
M. P., vol. Ill, page 274).
These reasons, advanced by Requena, offer the best and most ap
proved criterion for interpreting the provisions of the Royal Decree
of 1802, upon which to incorporate the territory of Santiago de las
Montanas not only into the Bishopric but also into the Gobierno
and Comandancia general of Maynas.

92
§IX. Missions Along the Upper and
Lower Putumayo.
And, finally, the Bishopric of Maynas, according to the Royal
Decree of 1802, comprised "the missions of the Order of Mercy
along the lower waters of the Putumayo, belonging to the Bishopric
of Quito, and the missions located along the upper waters of the
same river and along the Yapura, called the Sucumbios, which were
in charge of the Franciscan Fathers of Popayan."
We sometimes see those two groups of missions designated in
common by the name of Sucumbios Missions, but, as the Royal
Decree applies that name only to the upper group, stating that they
had been so styled in the past, we think it preferable to adopt the
common appellation of Missions on the Putumayo, distinguishing
them as upper and lower.
Glancing at the map, we observe that the name Sucumbios, by
which the Royal Decree designates the missions on the upper part
of the Putumayo, figures as the name of a town and as an affluent
of the Putumayo, south of that river; and, as this might lead to
error and confusion, we deem it wise to suggest that when the
upper or higher part of the river is spoken of, it is with reference
to its source and greater land elevation, while by the lower part is
meant its course towards its mouth. In like manner we have also
noticed that the expression upper missions of Maynas denoted those
located south of the Maranon nearest its source, while the designa
tion lower indicated those established on the north and more re
mote. This explains why we see towns on both sides of the Putu
mayo mentioned as pertaining to the Sucumbios Missions, which is,
strictly speaking, the name properly belonging to the upper missions.
/) Description of the Bishopric of Quito, 1755 (D. M. P., No.
67). — After speaking of tbe territory of Quijos, this description
continues: "There belong also to the Gobierno of Quijos the Sucum
bios Missions, wiih their towns: the leading town of San Miguel,
San i'ici;o de los Palmares, San Francisco de los Curriguaxes, San
Pedro Alcantara de la Coca, San Christobal de los Yagtrages and
San Jose de los Abugcees; the number of inhabitants, is estimated
at two thousand." .
2) Requena's Report of 1779 (D. M. P., No. 9Q).+-The Mis
sion- of Sucumbios, says Requena in this report, are served by the
members of the nljgiotis order of San Francisco and are subject

93
to the Bishop of Popayan. They stretch out to the east of the
Gobierno (Popayan) over a vast unpopulated country.
The approach most in use is that by way of the city of Almaguer,
six da'ys distant through a ridge of the mountains and then nine
teen days afoot through woods and mountains' to the "embarcadero"
on the Uspayacu, a river emptying into the Putumayo. At the
headwaters of this river and thajof the Caqueta, or Yapura, are the
Christianized communities of San Diego, Amoguajes, Mamo, La
Concepcion, San Francisco Solano and Santa Maria, the first four
on the Putumayo and the last two on the Caqueta, sad relics of the
extensive field of those missions, which at the beginning of this
century counted sixteen towns crowded with inhabitants, while to
day, surrounded by fierce Indian tribes, these six towns boast but
few souls. In the same mountain district were located the ancient
cities of Mocoa, Ecija and Sebondoy, long since destroyed by the
attacks of the savages.
He then proposes the method that should have been followed in
the establishment of the missions and the advantages to be gained
by' their incorporation into the Bishopric of Maynas. As a result
of such incorporation there would stretch away to a distance from
the Putumayo a line of towns, beginning at Concepcion, the most
advanced of the Sucumbios missions on this river, and extending
to its mouth at the Maranon. This would place them in communi
cation with the Maynas missions, facilitate the administration of the
Superior and further the conversion of great numbers of the In
dians. If on a visit to the towns on the Napo the Bishop wishes also to
visit the Sucumbios missions, he must penetrate this region by way
of the Aguarico river, passing the now secularized towns of Aguari-
co and Sucumbios.
Those two parishes served by secular priests ought to be incor
porated, as to civil affairs, with the Gobierno of Maynas in the
same manner that they are attached to their Bishopric. The inhabi
tants recognize the domination of no temporal magistracy, functions
of that character being, as a rule, exercised by the parish priests.
3) Official Communications of the Governor of Maynas, 1803
and 1805. — On the promulgation of the Royal Decree of 1802 the
Governor of Maynas, D. Diego Calvo, in compliance with its pro
visions concerning missions, addressed an official communication to

94
the Viceroy of Lima, September 24, 1803, giving ar. account of the
conditions existing in the missions on the Putumayo.
In that official communication Calvo relates how certain Indian
chiefs, in 1782, repaired to his predecessor, D. Francisco Requena,
with appeals for aid and protection, and bow through the efforts of
Requena, the President and the Bishop of Quito despatched several
members of the Order of Mercy, who, in 1784, stayed to remain in
charge of the lower missions, and in a short time founded the town
of Asuncion.
He states that the towns which comprised the upper and lower
Putumayo Missions, from Pasto to the most distant, were the fol
lowing: Mocoas, San Augustin de Nieto, San Diego, Amaguates,
San Jose de Picudo, San Tomas de Mamos, La Concepcion, Agus-
tinillos, San Ramon, La Asuncion de Nuestra Senora, San Jose de
Villalengua and San Antonio de los Chumanos ; and he adds that the
towns of San Ramon, San Jose de Villalengua and San Antonio
were lost and that others could not be formed for lack of mission
aries, who should be sent forward in great numbers to promote
these missions and maintain them (D. B. P., vol. II, p. 43).
In another official communication by the same Governor, ad
dressed also to the Viceroy of Peru, June 16, 1805, he reminds him
of his former communication and insists upon his request for mis
sionaries, stating' that the upper missions called the Sucumbios con
sisted of eight towns while the lower missions had become reduced
in number to four, but could have been increased by three more by
reason of the already considerable assemblage of Indians if the mis
sionaries had gone forward (D. M. P., vol. VII, p. 213).
Such official notes, as well as others we shall cite in the following
chapter, will show that the Royal Decree of 1802 was carried into
effect, the upper and lower missions on the Putumayo being placed
in dependency upon the Viceroy of Peru through the mediation of
the Governor of Maynas; and there can be no possible doubt that
such disposition should have been made, since that Royal Decree
extends the Comandancia general of Maynas, as we have shown,
over all of the territory of the affluents of the Maranon, mentioning
expressly the Yapura and the Putumayo.

CHAPTER IV.
Gobierno and Comandancia general of Maynas.
(Divisionary Lines)
Summary: I. General demarcation of the Gobierno and Comandancia of Maynas.
II. Descriptions by Bishop Rangel, 1814 and 1822.
III. The frontier line with Brazil and the Northern and Southern boun
daries.
IV. The Western line. — 1. Gobierno of Quijos; the town of Papallacta. —
2. The navigability of the rivers.— 3. Headwaters of the Caqueta,
or Yapura, and the Putumayo. — 4. Agoyan Falls on the Pas
taza. — 5. The town of Paute on the Paute, or Santiago, river. —
6. The Chinchipe at the mouth of the Canchis. — 7. Complete
contour.
§1. General Demarcation ol the Gobi
erno and Comandancia general of May
nas. The territories we have described embrace an immense expanse,
having for its western line the cordillera of the Andes, from
whence spring the rivers which, flowing almost parallel and in an
oblique direction, empty on the left and northern bank of the
Maranon. Commencing at the, north, we find first the Caqueta or Yapura
river, which marks the divisional line with New Granada and pene
trates into Brazil. Between the Yapura and the Aguarico, or, if
one prefers, the Coca, in territories through which flows the Putu
mayo, are located the Sucumbios Missions, and, following the
course of the Putumayo, we come to the lower missions bearing
that name. Continuing along the cordillera of the Andes, and
within the triangle formed by that ridge and the rivers Coca and
Napo, lie the provinces of the Gobierno of Quijos, recognized by
all, and, following the course of the Napo, are found the missions
of that name. Then comes the territory of Canelos on the Bobonaza
river, between the starting point of the Napo and the Pastaza. Past
the Pastaza and before reaching the Paute, we come upon Macas,

96
among the affluents of the Morona. In the angle of the Paute, or
Santiago, and the Maranon, lies Santiago de las Montanas, with its
jurisdiction over the Jibaros and Antipas Indians. The last north
ern affluent of the Maranon is the Chinchipe, the border line of the
province of Jaen.
Then comes the upper Maranon, intersecting from south to north
the province of Trujillo, constituting the eastern boundary of the
province of Jaen as far as the mouth of the Chinchipe, at which
point it begins to double to the right, following which direction,
that is, from west to east, from its confluence with the Santiago
until it penetrates into Brazil. Emptying into the Maranon on its
right and southern bank are three great affluents: the Huallaga,
from the mouth of which, eastward, the larger river is called lower
Maranon; the Ucayali, from the disemboguement of which in the
Maranon the latter becomes known also as the Amazonas river, and
the Yavari, which is the boundary with Brazil.
The Maynas missions — that is, those of the Maranon — begin
under the designation of upper missions along the southern part of
that river on both sides of the Huallaga and continue, as the lower
missions, along the course of the Maranon, chiefly on its left bank,
as far as the Portuguese colonies. Those missions proceeded with
their settlements at the mouths of the northern affluents of the
Maranon, or following them up stream. The Maynas Missions
thus became, by reason of the location and length of the Maranon,
the western extremity, the central line and the most important part
of the Bishopric and Comandancia general of Maynas, maintaining
relations and communication with the other parts of those govern
mental entities.
The circumscription of Maynas, to the south, was completed by
the aggregation of the ancient provinces of Moyobamba and Lamas
and the territories of newly converted Indians on the Huallaga and
Ucayali, mentioned in the Royal Decree of 1802.
It follows, therefore, that the general demarcation lines of the
Comandancia general of Maynas were : the western line which, fol
lowing along the cordillera of the Andes and terminating at the
confluence of the Chinchipe with the Maranon, marks out, from the
Yapura, the western boundary also of the upper missions of the
Putumayo, called the Sucumbios, the indisputable provinces of the
Gobierno of Quijos, and the territories of Canelos, Macas and
Santiago de las Montanas; the southern line,, which brings in

97
Moyobamba, Lamas and newly converted territory on the Huallaga
and Ucayali; the line running southeast along the course of the
Yavari which traces the frontier of Brazil and the eastern line,
which is this same frontier, and the northern line, running in a
northerly direction along the course of the Caqueta and Yapura.
§11. Descriptions by Bishop Rangel,
1814 and 1822.
The statement we have just made from a study of the territories
is confirmed by the description prepared by the Bishop of Maynas,
Sanchez Rangel, of the extent of his diocese, which we repeat was
identical with the gobierno and comandancia general.
In his letter to the Intendent of Trujillo, in 1814, the Bishop
says: "This Gobierno and this Diocese comprise: first, the prov
ince of Quijos, on the Quito side; the Putumayo, Yapura and
Sucumbios on the Popoyan side and still on the side of Quito; and
Canelos, on the Cuenca side; on the side of Trujillo, the province of
Moyobamba and several streams from the Guallaga and
Maranon; on the Lima side, the Guallaga and Panataguas; at
Tarma, the entrances to the Ucayali, and, towards Huamanga, the
Missions of Huantor. This is the circumscription, or, rather, these
are the boundary points, of the Gobierno of Maynas and its Bish
opric, with respect to discovered or conquered territory; and, as to
territory not reduced to possession, the delineation follows the wa
ters of the Maranon towards Portugal * * * " (D. B. P.,
No. 77).
In his report of October 17, 1822, addressed to the Nuncio of His
Holiness, concerning the situation in his diocese, the Bishop says to
him: "I have here these countries: Ecuatorial line at the south,
and, in the northern part: provinces of Quijos, Avila, Aguarico,
Sucumbios, Yapura, headwaters of Putumayo towards Pasta; that
of the Yaguas and other nations in the lower part of the Putumayo ;
that of Canelos on the Bobonaza, to which pertains the wilderness
of La Palma (ancient province) ; that of Maynas in the center,
which comprises the upper and lower missions of that name in the
watersheds of the Maranon, or Amazonas, and those of the Guallaga
at the south; and, to the north (the missions), at the mouths of the
Santiago de las Montanas, Pastaza, Nanay and other rivers which
empty into the Maranon, belonging formerly to Quito and Popoyan."

98
He mentions the towns of the Bishopric and fixes the demarcation
of the same by degrees of longitude and latitude (D. M. P., No.
104).
§111. The Frontier with Brazil and the
Northern and Southern Boundaries.
The ti laiy between Spain and Portugal of October 1, 1777, stipu
lated as to their boundaries in America, in Articles 11 and 12, that
the line established running from east to west until it meets the
Yavari shall continue downwards along the waters of that river to
where it empties into the Maranon or Amazonas ; that it shall
follow the lower waters of the Amazonas as far as the western
most mouth of the Yapura and continue from this western mouth
upwards along the Yapura to the point where are located the Por
tuguese establishments on the banks of this river and the Negro
river. Soon afterwards, as we shall now see, the State of Peru ceded
to Brazil the angle of the Maranon with the Yapura, connecting
this river by a line from the point of the Apaporis instead of its
last western mouth (Avatiparana) with the mouth of the Yavari.
D. Francisco Requena, Boundary Commissioner, in his report of
1779, proposed that the capital of the new Bishopric should be
Omaguas, inasmuch as by the treaty of 1777 "there are incorporated
into the dominions of His Majesty the northern shores of the
Maranon to the westernmost mouth of the Yapura, and the acquisi
tion of those lands requires, for the public good, that establish
ments of Spaniards be formed along the new frontier for the pur
pose of observing and checking the Portuguese, that is, at the mouth
of the Yapura and at the mouths of the Putumayo, Yavari and
Ucayali" (D. M. P., vol. Ill, p. 278).
The Comandancia general of Maynas bordered, then, on the
colonies of Brazil along the Yavari, the Maranon, or Amazonas,
and the Yapura, as far as the point where the Portuguese estab
lishments were grouped on this river and on the Negro.
From the point where those establishments terminated, tbe
Yapura river marked the line separating the Comandancia general
of Maynas, as well as the Viceroyalty of Peru, from the Viceroy
alty of New Granada. It is a question for argument whether the
Koyal Decree of 1802, having expressly included the Yapura in that
Comandancia and having spoken of the missions located on that

99
river, its left bank also was included therein; but there can be no
doubt that the Yapura formed part of the Comandancia by virtue
of those provisions of the decree.
Neither can it be doubted that there was included in the Coman
dancia the entire southern region of the Maranon, for the Royal
Decree so provides, mentioning the three great affluents on the
south: the Huallaga, Ucayali and Yavari The last named river
was the southeast frontier with Brazil, and an exact determination
of the southern line of the Comandancia, from the beginning of that
river to the Chinchipe, was of small importance as those territories
belonged to Peru, some of them being expressly mentioned in the
royal decree creating the Audiencia of Lima, such as the province
of Moyobamba and the country of the Motilones, in its eastern part.
§IV. The Western Line.
The western line of the Comandancia of Maynas — that is, the
line beginning at the headwaters of the Yapura and ending at the
Chinchipe river, is the most interesting because it has to mark the
frontier with the Republic of Ecuador north of the province of
Jaen. To indicate that line in a general way it is enough to say that it
is the line which leaves within the Comandancia general of Maynas
all the towns and territories we have enumerated and described as
forming part of that circumscription. But let us establish the line
more concretely.
i) Gobierno of Quijos; the Town of Papallacta. — The Royal
Decree of 1802 states most conclusively : "I have resolved that there
shall be segregated from the Viceroyalty of Santa Fe and from the
province of Quito and aggregated to that Viceroyalty (Peru) the
Gobierno and Comandancia general of Maynas, with the towns of
the Gobierno of Quijos, except that of Papallacta." All of the
towns of the Gobierno of Quijos, except Papallacta, must, then, lie
within the demarcation of Maynas. The town of Papallacta is,
therefore, an indisputable point on the western Hne, the boundary
on the Quito side: The nearest town, continuing now within Qui
jos, is that of Maspa, and consequently the dividing line must pass
between Papallacta and Maspa. The distance between those two
towns and the location of the others belonging to the Gobierno of
Quijos may be noted in the descriptions and their documentary ac-

100
companiments to which we have referred. The official communi
cations of the Governor of Quijos and of the President of Quito,
in 1754, state clearly that the Gobernacion of Quijos begins in the
cordillera of the Andes.
2) Navigability of the Rivers. — Continuing, the Royal Decree
of 1802 provides that "that Comandancia general shall extend, not
only along the lower Maranon river to the frontiers of the Por
tuguese colonies, but also along all the other rivers emptying
into the Maranon on its northern and southern banks, such as the
Morona, Guallaga, Pastaza, Ucayali, Napo, Yavari, Putumayo,
Yapura and others less considerable, as far up in each as the point
at which, by reason of its waterfalls and inaccessible rapids, it
ceases to be navigable." We have here another definite rule
derived from that sovereign act: the points in the rivers mentioned
and in others of lesser magnitude, at whieh they cease to be navi
gable because of their falls and inaccessible rapids, are boundary
marks; those points when connected by lines leave within Maynas
the towns and their territorial districts watered by the rivers re
ferred to and mark out the divisionary line.
What is meant by the word navegables? According to the dic
tionary of the Academy, the term navegable is used "in speaking of
a river on which one can navegar." Navegar is "to make a jour
ney, or to go, by water, by means of an embarcacion, or by ship.
Embarcacion is "a barco in which one can navigate," and barco "a
boat made of wood, iron or other material, provided with apparatus
for propulsion, and which floats and can transport, by water, per
sons or objects."
It is enough, then, that by use of current language we can speak
of, as navigable (navegable) a river on which one can travel by
means of vessels, however simple they may be, transporting per
sons and objects. And it is clear that when the Royal Decree of
1802 referred to the Maynas rivers as being navegables, its authors
had in mind the boats then used by the Indians, missionaries and
public officers in travel upon them — canoes, rowboats, or sailboats.
What are these points at which the northern affluents of the
Maranon cease to be navigable? This is not a question of law,
with respect to which there can be any doubt, but a question of fact,
to be accepted, or proven.
3) Headwaters of the Caqueta or Yapura, and the Putumayo. —
Peru's defence has submitted maps on which appear, in great de-

101
tail, the northern affluents of the Maranon, and, among them, a
chart of the Napo and Putumayo rivers, signed by the cartographer,
Carlos Hoempler, in November, 1903. On it appear minutely the
data as to navigation gathered by the experts mentioned therein.
We are not going to enter into these details, nor shall we stop to
speak of the Napo river, for enough has been said with regard to
the town of Papallacta, while dealing with the subject of the boun
dary line of the Gobierno of Quijos; but we shall set forth what
may be necessary to establish the boundary of the Sucumbios Mis
sions, in the light of documentary evidence.
In the memorial of October 25, 1894, presented by the Plenipo
tentiaries of the Government of Colombia, Sres. Galindo and Tanco,
to the Plenipotentiaries of Ecuador and Peru, at the Lima confer
ences held in that year for the settlement of boundaries it is main
tained that the Putumayo and Caqueta "are navigable as far as the
port of Limon and the port of Guines (not exactly on their own
waters but on that of their affluents), an ascent of fifteen or twenty
leagues from the city of Pasto (perhaps today the second city in
Colombia)," for which reason they did not consider it to their ad
vantage to accede to Peru's request. It should be noted that those
plenipotentiaries treated the question as in the field of compromise
and had acknowledged that the Royal Decree of 1802 "is as au
thentic as it is effective and conclusive" (D. M. P., vol. II, pp.
23 and 29).
The port of Limon is situated on the Mocoa river near its mouth
in the Caqueta. The port of Guines, or Guineo, is found on the
river of that name, affluent to the upper Putumayo on the left bank.
Furthermore, it must be taken into consideration that the Royal
Decree of 1802 expressly includes "the missions known as the
Sucumbios, situated along the upper part of the Putumayo river
and on the Yapura." The line should, therefore, be traced so as to
include- within Maynas the settlements comprising those missions ;
among them is Mocoa, mentioned by the Governors of Maynas,
Requena (1779) and Calvo (1803), and Sebondoy, mentioned also
by Requena.
Requena likewise states, in 1779, that the converted territories
of San Diego, Amoguajes, etc., are at the headwaters of the Putu
mayo and Caqueta, or Yapurd, rivers; and Bishop Rangel reported,
in 1822, as belonging to his diocese, "Aguarico, Sucumbios, Yapurd,
Headwaters of the Putumayo, towards Pasto."

102
The line indicated by the Mocoa and Andaquies mountains, the
true limits of the Sucumbios Missions, enclosing the headwaters of
the Caqueta, or Yapura, and of the Putumayo, and the most
distant towns of Mocoa and Sebondoy, within the Comandancia
and Bishopric of Maynas, completely establishes its boundary on
this side of its territory.
4) Agoyan Falls on the Pastaza. — The Pastaza originates near
the vokmo of Cotopaxi, and, on crossing the cordillera of the
Andes, forms a cascade — the Falls of Agoyan, from which point it
begins to be navigable.
Such is tne assertion made in the Geography of Ecuador, by D.
Manuel Villavicencio, one of the most ardent supporters of that
country in the matter of boundaries and a pronounced adversary
of thev Royal Decree of 1802, who describes with much care the
Amazonas rivers, after having traveled through them.
The Pastaza, says that Ecuadorian geographer and explorer, has
its source in the volcano of Cotopaxi and goes by different names
until, from the Agoyan onward, it takes the name of Pastaza, which
it preserves down to its disemboguement in the Amazonas. "In its
headwaters it flows rapidly until, united with the Chambo, it breaks
through the eastern ridge of the Andes and runs with greater ra
pidity through a deep and narrow channel cut through granite rocks
to precipitate itself over the Cascade of Agoyan from a height of
about forty yards. * * , * From that point its current is not so
rapid, even permitting navigation by canoes. As soon as the Pas
taza is augmented by the Bobonaza, its current becomes tranquil, its
turns majestic and its aspect magnificent; it almost rivals the Napo
in its wealth of waters and its susceptibility to steamboat naviga
tion. * * * The Pastaza is a beautiful river and one can travel
up its course 90 leagues by steam and 20 more by small boats.
Through its channel the navigator can approach nearer the cor
dillera than by the Napo; but one must overcome the ferocity of
the savage tribe that is in almost complete possession of its right
banks and opposes somewhat of an obstacle to navigation. * * *
The Pastaza in the territory of Canelos is auriferous. * * * "
A Dominican missionary, in a volume published in Paris in 1889
(Voyage d' exploration d'un missionaire dominicdin chez les tribus
saitvages de I'Equateur), confirms the fact that the Cascade of
Agoyan is the terminal point of navigation on the Pastaza (B. P.,
pp. 160, 161).

103
$) Town of Paute on the Paute, or Santiago, River. — As to
that town, the same Ecuadorian geographer and explorer, D.
Manuel Villavicencio, says:
"The course of the Santiago river is 170 leagues in length, of
which 100 are navigable by steamboats and 30 more are navigable
by the savages, who come nearly up to the skirts of the cordillera,
where the course is rather rapid, but without any falls or cascades.
We believe that one can even follow it over the rise of the cordil
lera and reach the neighborhood of the town of Paute without the
slightest risk, for, even in its course through the cordillera, there
is some backwater and overflow of its banks. It has been thought
that there were cascades on that river beyond the pass through the
cordillera, but this is erroneous. Instead of this, on the contrary,
its breadth and tranquil sweep give it a majesty and mien of great
beauty which invites most successful navigation; and the sole diffi
culty which presents itself is that its banks, almost as far as its
mouth, after breaking through the cordillera, are overrun by sav
ages, some friendly and others hostile to travelers. * * * The
Gualaquizas entertain certain relations with the Christians, and, if
sagacity and intelligence are exerted, those who to-day constitute
this obstacle to navigation may perhaps become the boatmen in the
transportation of all the riches this pass contains." (B. P., p. 158.)
6) The Chinchipe at the Mouth of the Canchis. — The Chinchipe
has its origin in the province of Loja, doubles around the ancient
town of Loyola, in the direction of north to south, takes in the
Canchis on its right bank and empties into the upper Maranon.
The confluence of the Canchis with the Chinchipe marks the termi
nal point of the western line of the Amazonas region of Peru,
if the province of Jaen continues to belong to Peru. On the
hypothesis that that province should belong to Ecuador, the
Maranon and its affluent, the Chinchipe, would constitute its east
ern boundary, either because the provinces of Chachapoyas and
Moyobamba have always been Peruvian or by virtue of the Royal
Decree of 1802.
7) Complete Contour.- — Taking for the pojnt of departure the
confluence of the Canchis with the Chinchipe, the western line of
the Amazonas region claimed by Peru, is traced by following the
Chinchipe in a straight line, continuing in the same direction to the
town of Paute, running along the cordillera of the Andes to the
Falls of Agoyan, from those falls to the town of Papallacta (in that
part of the cordillera called Cotopaxi), and from that town, over
the mountains of the cordillera, bearing the names of Cayamburu,
Andaquies and Mocoa, to the Caqueta, or Yapura.

CHAPTER V.
Gobierno and Comandancia general of Maynas.
(Validity, Execution and Confirmations of the Royal Decree of 1802.)
Summary :
I. Validity of the Royal Decree of 1802 according to Spanish colonial
law.
II. Execution of that Royal Decree. — 1. On the part of the President
of Quito ; notification of the towns. — 2.. On the part of the
Viceroy of Santa Fe. — 3. On the part of the Viceroy of Peru.
—4. On the part of the Ecclesiastical authorities.
III. Confirmations of said Royal Decree. — 1. Petition of Baron de Car-
ondolet, denied in 180S. — 2. Petition of Bishop Rangel, denied
in 1818.— 3. Petition of President Montes, denied in 1819.
§1. Validity of the Royal Decree of
1802, According to Spanish Colonial Law.
After examining the contents of the Royal Decree of June 15,
1802, it becomes important to demonstrate its validity and effective
ness, for, the Government of Ecuador having recognized, in 1857,
that- that act "offered some apparent foundation" for the claims of
Peru as to the territory of the Amazonas region, denied, as she had
denied in 1854, that it could have had any legal force ; that it had
been carried into effect, or that it could be held to be an accom
plished act in the administrative system (D. B. P., Nos. 22 and 24).
The Royal Decree of 1802 possessed all the compelling force
characterizing the earlier decrees as to territorial division which
were inserted as laws in the Compilation of the Indies, and possessed
by those subsequent to that code in relation to the creation of the
original Viceroyalty of New Granada, from which it segregated the
territories of Maynas.
Law 1, Title 1, Book II of the Compilation of the Indies stamps
with the character of law all measures contained therein emanating
from the Crown, and, in the language of its signer, Philip IV, pro
vides that, if it should be necessary to make further enactments,
"the Viceroys, presidents, audiencias, governors and alcaldias

105
mayores shall give us notice and report through the Council of the
Indies," in order to make possible a decision as to what action to
take. Law 2, Title 2, Book II confers upon the Council of the
Indies supreme jurisdiction over those enactments, with power "to
direct, and, with our (the King's) advice, to make laws, decrees
and ordinances, and to render decisions in our name in general and
special matters."
It was by royal decrees that the first Viceroyalties of New Spain
and Peru were created, as also the twelve audiencias of the Indies.
Law 1, Title 15, Book II, of Philip IV, provides that "for the pres
ent, and until we shall otherwise order, said Audiencias shall be
maintained, and, in the district of each, the gobiernos, corregimien
tos and alcaldias mayores now existing; and no innovation shall be
made in any of such districts without express order from us or our
Council." And in Law 7, Title 2, of the same book, the Council is
cautioned, as to the division and partition of the territories discov
ered, or to be discovered, to be careful that that division shall cor
respond in matters temporal and spiritual — the governments with
the bishoprics, and so forth.
By virtue of the reservation as to the modification of the terri
torial division, and even without the need of it, the successors of
Charles II (who published the Compilation of the Indies) could, in
the exercise of the all-embracing sovereignty enjoyed by them,
alter the system of division prescribed in that body of laws, creat
ing new viceroyalties and shifting about among them their terri
tories as in the case of the audiencias.
In 1854 and 1857 the Government of Ecuador, for the purpose
of impugning the validity of the Royal Decree of 1802, took the
position that it had not been acknowledged by the Vice
roy of New Granada and that Baron de Carondolet, President of
Quito, protested against it, in accordance with the provisions of Law
24, Title 1, Book II of the Compilation of the Indies; but, as we
shall see presently, not only the Viceroy of New Granada, but the
President of Quito as well, complied with it and gave "rders for its
being carried into effect.
But it is by no means certain that royal decrees depended for
their legal force and effectiveness upon their acknowledgment or
acceptance by the Viceroys, or that, because of the alleged opposi
tion thereto by the President of Quito, the Royal Decree of Charles
IV could have been rendered inoperative. The very law cited (Law

106
24, Title 1, Book II) commands the Viceroys, presidents, governors,
etc., to carry into effect, and to cause to be carried into effect, all
royal decrees and sentences rendered in the King's name, "as soon as
they shall see them or receive notice of them," under pain of losing
half their property if they should fail to do so, and adds
that, if the matter involved should admit of appeal, it might be
granted, but "without, by so doing, suspending compliance with, and
enforcement of, the decrees and sentences, except where, by such
enforcement, notorious scandal or irreparable injury would result."
The Royal Decree of 1802, however, surely could not be included
in that direction.
In the framing of the Royal Decree 6f 1802, the reports from
the proper authorities and the recommendations made thereon by
the Council of the Indies, were steps taken in excess of the custom
ary procedure provided for in the above-mentioned laws relating to
the method prescribed for the enactment of new measures or the
readjustment of territorial division.
It is enough to refer to its leisurely preparation, extending from
1777 over a period of twenty-five years, the various royal orders
calling for reports from the colonial authorities, the successive re
ports of Requena, the approval of those reports by the President of
the Audiencia of Quito and the Viceroy of New Granada and the
opinions forwarded by the Council of the Indies after hearing from
the Fiscales of Peru and New Spain, to convince one that few other
legal measures have been the object of more careful study or tht
subject of more abundant information.
§11. Execution of the Royal Decree.
The Royal Decree of 1802 was communicated, as therein re
quired, to the Viceroys of Peru and New Granada, to the President
of the Audiencia of Quito, to the Archbishop of Lima, to the Bish
ops of Quito and Trujillo and to the Deputy General of the order
of San Francisco in the Indies. All obeyed it and carried out its
provisions. i) On the Part of the President of Quito: Notifications to
the Towns. — Contrary to Ecuador's claim that the Royal Decree
of 1802 was not enforced because, of the opposition thereto of the
Baron de Carondolet, President of the Audiencia of Quito, it hap
pens that that official was the verv one who first complied with the

107
decree and put it in operation, because of the fact that he was the
first to whom it was communicated, he being the immediate superior
of the ancient governmepts of Quijos and Maynas, as shown by the
letters of instructions on the subject (D. B. P., No. 37).
Immediately upon its receipt, the President of Quito issues an
act of "obedecimiento" (obedience)- and refers it to the Fiscal, who
reports that the decree must be respected, obeyed and executed,
filing a legalized copy with the Audiencia (of Quito) "so that it
may be there recorded that the territories therein specified are seg
regated from the jurisdiction of its (audiencia) district, and notice
given to the Governors of Maynas and Quijos for their informa
tion and compliance." Thus, on the 19th of February, 1803, the
President, Baron de Carondolet, conforms, approving the Fiscal's
report, which leaves no doubt as to the effectiveness of the Royal
Decree of 1802, and vfhich may serve as an answer to those who
maintain that the decree did not refer to "territories," or signify an
actual segregation in civil, but only in ecclestical and military,
government. On the following day Baron de Carondolet communicates the
Royal Decree to the Governor of Maynas for his observance, di
recting the latter thereby to take notice that "His Majesty has been
pleased to incorporate that Gobierno (Maynas) and the missions
into the Viceroyalty of Peru., detaching them from that of Santa
Fe." The Governor of Maynas, D. Diego Calvo, on the 20th of August,
1803, addressed a circular to the towns, communicating the Royal
Decree to them, in their turn, and the local authorities replied to
him, using the expression: "I have made known the contents of
this royal decision to all the inhabitants of this town under my
authority." In September, 1803, the notifications were sent to the
Jeberos, Laguna, Chamicuros and Omaguas; in October, to Yuri
maguas, Muniches, Chayabitas, Cahuapanas, Barranca, Pinches and
Iquitos ; in November, to Andoas and Pevas ; in December, to Cane
los, and, in January of 1804, to San Francisco de Borja and San
tiago de las Montanas (D. B. P., No. 37).
2) On the Part of the Viceroy of Santa Fe. — The Viceroy of
Santa Fe, D. Pedro Mendinueta, says to the Viceroy of Peru, in an
official letter of March 29, 1803: "His Majesty having decided
upon the segregation of the province of Maynas from the jurisdic
tion of this Viceroyalty and its aggregation to that of Peru, and the

108
Royal Decree making such provision having been submitted to
by me and communicated to the Governor of that Province in order
that he may hereafter be under the orders of your Excellency, I
also inform your Excellency of this so that in the knowledge that
your powers over that territory are now established, your Excel
lency may make such dispositions in connection therewith as you
may deem most appropriate to the service of the King who has
confided it to your care" (D. B. P., No. 38). If it were a fact that
the Royal Decree of 1802 had needed the "acquiescence" ("el
pase") of the Viceroy of Santa Fe for its validity, as Ecuador has
maintained, what better proof than this that such acquiescence was
given? Mendinueta, in rendering an account to his successor of the state
in which he was leaving the Viceroyalty, tells him that the Gobierno
of Maynas had been segregated from it and attached to the Vice-
royalty of Peru, a disposition he had considered advantageous be
cause the distance made that Gobierno rather inaccessible to the
provinces of his Viceroyalty and a burden on its treasury (B. P.,
p. 123).
3) On the Part of the Viceroy of Peru. — Under date of March
14, 1803, the Viceroy of Peru, the Marques de Aviles, decreed:
"His Majesty's Royal Decree having been received, let it be re
spected and carried into effect," and forthwith issued the appro
priate orders for its execution.
Don Diego Calvo, Governor of Maynas, informs the Viceroy, the
Marques de Aviles, in an official letter dated at Jeveros, August 31,
1803, that the Presidency of Quito, having at once complied with
the Royal Decree, it had already communicated to him officially the
fact that the decree "had been caused to be published throughout
the province," a cause for congratulation to that presidency, as it
was to himself personally, in being placed under the Viceroy's or
ders (D. B. P., No. 38).
4) On the Part of the Ecclesiastical Authorities. — The Arch
bishop of Lima, the Bishops of Quito and Trujillo and the Deputy
General of the Order of San Francisco, to all of whom the Royal
Decree was also communicated, in like manner yielded their obedi
ence to it and carried it into effect.
On obtaining the order of approval from His Holiness in 1803,
the new Bishopric of Maynas was established, and, in 1805, Fray
Hipolito Sanchez Rangel was appointed Bishop, taking possession

109
in 1808, through the co-operation of the Viceroy of Peru, the Arch
bishop of Lima and the Governor of Maynas, in compliance with
orders issued to that effect (D. B. P., Nos. 39, 40 and 41).
The Royal Decree was likewise carried into effect, in its relation
to the missions, by the turning over of the curacies of Lamas and
Moyobamba and that of the convent of Huanuco to the Ocopa
College for the Propagation of the Faith and the foundation of hos
pices in Tarma and Chachapoyas (D. B. P., Nos. 43 and 44).
§111. Confirmations of the Royal De
cree.
The Royal Decree of 1802 was confirmed by various royal orders,
of which we shall cite three, being refusals to alter it, and, therefore,
equivalent to ratifications.
i) Petition of the Baron de Carondolet; Denied in 1805  The
year before the enactment of the Royal Decree of Charles IV, while
Maynas was still a dependency of the Viceroyalty of Santa Fe, and
of the Audiencia of Quito, its President, the Baron de Carondolet,
petitioned for the formation of a captaincy-general to embrace all
the provinces of that audiencia district, but that petition was de
nied by the royal order of May 15, 1805, with the concurrence of
the Board of Fortifications and Defence of the Indies (D. B. P.,
Nos. 70, and D. M. P., No. 102).
2) Petition of Bishop Rangel; Denied in 1818. — Bishop Ran
gel, dissatisfied with his diocese because of its great extent, at odds
with Governor Calvo and complaining against the Franciscans of
Ocopa, petitioned the King, in a letter of September 21, 1811, for the
suppression of the Bishopric of Maynas, or at least that great re
forms be instituted for the temporal and spiritual development of
those regions. As a result, the Council of the Indies started a pro
ceeding, in which the Viceroy of Peru reported, in agreement
with the Padre Colomer and the Padre Girbal, with whom he
had consulted as the persons most competent in the matter,
and D. Francisco Requena submitted an opinion as arbitrator.
The Council, in conformity with the recommendations of the arbi
trator, reported to the King on the 19th of June, 1818, recommend
ing the preservation of the Bishopric and Comandancia general of
Maynas as well as the adoption of certain measures for better gov
ernment in spiritual and temporal matters. The King decided with

110
the Council, issuing various royal decrees in 1819 for carrying into
effect the recommendations he had approved (D. M. P., Nos. 95 and
97-100; D. B. P., Nos. 72-75).
3) Petition of President Montes; Denied in 1819. — Almost co-
incidently with the proceeding begun in the Council of the Indies
by the letter of Bishop Rangel, a second was instituted before the
same body by another petition addressed to the King December 22,
1814, by the President of Quito, D. Toribio Montes, in which he
asked for the reincorporation into his district of the Gobierno of
Guayaquil and the Comandancia general of Maynas, with which
territory the province of Quito would be elevated to the rank of a
captaincy-general, like that of Caracas, Chile and others, "fixing
for its boundaries the Mayo river on the side of the Popoyan, the
whole of the south coast, the settlements and converted territory in
.Maynas and as far as the desert of Sechura, which is the natural
division for forty leagues of unpopulated territory, with Peru and
the Viceroyalty of Lima, and selecting Guayaquil as its capital."
Attached to the papers in that proceeding were various objections
relative to the jurisdictional dependency of Guayaquil and the lo
cation of the capital for the district, and, after several reports, one
of which was from Requena, the office of accounts and the Fiscal
proposed, in support of that scheme: 1st, that Montes' project to
elevate Quito into a captaincy-general be rejected, as had been
done with the Baron de Carondolet's plan of like import, and that
the dispositions made by the Royal Decree of 1802 as to Maynas
be adhered to, and, 2nd, that the Audiencia of Quito should have
jurisdiction over matters of justice and finance pertaining to Guaya
quil, as was already determined in another proceeding. The Coun
cil, on April 29th, 1819, agreed "with the accounting office and the
Fiscal," submitted its recommendations to the King, who decreed
"como parece" (as it appears) and promulgated the appropriate
royal decree to carry them into effect (D. B. P.,. Nos. 70 and 91 ;
D. M. P., No. 102).
We, therefore, see the Royal Decree of 1802 confirmed, on the
eve of independence, by tbe rejection of projects seeking to alter
the established organization.

CHAPTER VI.
Gobierno and Comandancia general of Maynas.
(Adherence to and Stability of the Royal Decree of 1802.)
Summary: F. Matters arising in Mavnas- confirming the adherence to the Royal
Decree of 1802, down to the Independence. — 1. Cessation of *he
jurisdiction oi the Vicerov <>f Santa Fe and its exercise hv that
of Peru. — 2. Matters rcciesiasticaJ. — 3. Matters of personnel, >
appointment of governor.-. .->) appointment of emplc\ ei\-. — - ->
Matters military. — 5. Matters political. — 6. Matters economical. —
7. Matters administrative.
II. Particular instances confirming the adherence to the decree in certain
localities. — 1. Gobierno of Quijos. — 2. Town and curacy ->i
Canelos. — 3. Missions on the Putumayo. — 4. Santiago -.••:¦ las
Montanas. — S. Lamas and Moyobamba.
III. Alleged nullification of the Royal Decree of 1802. — 1, Nu
nullifying act whatever in existence — 2. The supposititious proto
col of Pedemonte-Mosquera. — 3. Court Guides of Spain and
Maps. — 4. Notes on matters. — 5. The constitutional regime ur
Spain. — 6. Independence and war.
§1. Matters Arising in Maynas Con
firming- the Adherence to the Royal
Decree of 1802 Down to the Independ
ence.
i) Cessation of the Jurisdiction of the Viceroyalty of Santa Fe
and Its Exercise by that of Peru. — The Viceroys of Santa Fe con
formed to the recommendations made by D. Pedro Mendinueta, in
bis aforementioned official letter, to concede to the Viceroy of Peru
the power to take charge of the affairs of the Comandancia general
of Maynas, abstaining on their part from any intervention therein
and inhibiting cognizance of matters then pending, as shown in their
decrees of February 5, 1803. and May 29, 1805 (D. B. P.. No. 36).
The jurisdiction of the Audiencia of Quito over the territories of
Maynas also came to an end as a result of the compliance by its
President, Baron de Carondolet, with the royal decree in 1803. r-nd
lor the same reason his communication with those territories ceased,

112
for, as he makes clear in his official letter of February 7, 1804, it
was no longer possible for Quito to continue in correspondence with
Quijos and Maynas "since those provinces were aggregated to the
Viceroyalty of Peru," and since it was only by chance that anyone
came and went between the jurisdictions (D. M. P., vol. VII,
p. 212). As further proof of the cessation of that jurisdiction in
the Presidents of Quito, it may be remarked that, matters which
by their very nature should have continued to be dealt with by that
audiencia, even such a simple matter as the renewal of a license to
the Governor of Quijos, were referred to the Viceroy of Peru (D.
M. P., No. 115).
On the other hand, the Viceroys of Peru, as hierarchical superi
ors, intervened in matters of all kinds pertaining to the Gobierno of
Maynas, as we shall now observe.
2) Matters Ecclesiastical. — There can be no doubt of the effect
iveness of the Royal Decree of 1802 with relation to the Bishopric
of Maynas, since that entity continued its existence as created until
some considerable time after the independence and Bishop Rangel
continued at the head of his diocese until 1821, when he returned
to Spain because of the war.
The Viceroy of Peru was the authority who, in the name of the
King, maintained civil relations with the Bishopric. The Viceroy
and Audiencia of Lima and the Governor of Maynas co-operated
in carrying out the orders by which the Bishop took possession
(D. B. P., No. 41). To the Viceroy of Peru the monarch con
fided the execution, with the concurrence of the Archbishop of
Lima, of royal orders of general interest to the diocese, such as that
of June 17, 1819, providing for the supplying of members of re
ligious orders to the towns of Maynas that might need them (D.
B. P., No. 73) ; and to the Viceroy himself repaired the Bishop of
Maynas with his complaints against the civil authorities, as, for in
stance in 1820, on the occasion of his dispute with the Governor
ad interim of Quijos (D. B. P., No. 68), which also proves that
the year before the independence the jurisdiction of the Viceroy
over Quijos continued to be recognized.
Furthermore, the sums required for the maintenance of the dio
cese, delivered to the Bishop by the Governor and Comandante
general of Maynas under orders from the Viceroy, upon whom the
Bishop depended, were taken from the treasury of the Viceroyalty
of Peru (D. B. P., No. 69).

113
3) Matters of Personnel.
a) Appointment of Governors. — The appointment of the Gov
ernor and Comandante general of Maynas rested with the King,
who communicated his choice to the Viceroy of Peru, in whom re
sided the power, to fill the office ad interim. Thus the Viceroy of
Peru, during the vacation of the actual Governor, Don Diego Calvo,
names D. Tomas Costa as Governor pro tempore, sending him, on
June 7, 1809, the appropriate commission, in which authority is
-given him to act in the four matters of justice, police, finance and
war (D. B. P., No. 47): By royal order of October 11, 1809, D.
Antonio Rafael Alvarez is named "for the military and political gov
ernment" of Maynas, and the order is carried out by the Viceroy
of Peru on the 21st of March, 1810 (D. B. P., No. 48). Soon
afterwards D. Jose Noriega is named as proprietary governor and
notifies the Viceroy of Peru, on June 18, 1813, that he has taken
possession of his office (D. M. P., vol. VII, app. 6). On the 21st
of October, 1818, on account of the illness of Noriega, the Vice
roy of Peru appoints D. Antonio de Simon as Governor ad interim
(D. B. P., No. 51), and. because of Simon's inability to act, the
Viceroy of Peru, May 29, 1819, appoints D. Carlos Herdoyza Gov
ernor ad interim, to whom, in November of that year, be writes
authorizing him to take charge of tbe office and confiding in his
ability and zeal to perform its duties as the needs of the hour
required (D. M. P., vol. VII, app. 6).
Will it be possible, after this proof, to deny that "the military
and political government" of Maynas, with its fourfold powers
above mentioned, existed and formed part of the Viceroyalty of
Peru until the birth of independence?
b) Appointment of employees. — We note further that the Vice
roys of Peru appointed the fiscal employees for the Gobierno and
Comandancia general of Maynas (D. B. P., No. 63), and that, in
the very year 1820, the Viceroy of Lima, D. Joaquin de la Pezuela,
appointed D. Enrique Valera chief officer ad interim of the treasury
of Maynas, and D. Miguel Damian Yepes, treasurer-inspector of
the boundary expedition of the Maranon, this latter on the recom
mendation of the Governor of the Province of Maynas (D. M. P.,
vol. VII, pp. 232, 233). The Viceroy concerns himself to the ex
tent of appointing the subordinate employees in the Maynas service,
as shown in the proceedings of 1817 and 1818 (D. M. P., No. 134).

114
4) Matters Military. — The Viceroy of Peru, on the 14th of July,
1806, orders the Governor of Maynas to organize a company of
troops to relieve those detailed from Quito, and on December first
notifies them of the nominations he has made for the officers of that
company (D. B. P., Nos. 52 and 53). The so-called veteran com
pany of Maynas was at once organized on the same basis as the
troops of the royal regiment of Lima, which, as stated by the Vice
roy Abascal in his official letter to the Governor of February 8,
1809, enlisted as volunteers, being relieved every two years; and
the Viceroys transmit the royal commissions of their officers, or
appoint them ad interim, as instanced in 1810 and 1811, and award
prizes to the soldiers and subalterns of this company, as instanced
in 1816 and 1819 (D. B. P., Nos. 54, 55 and 56; D. M. P., vol.
VII, pp. 234-240).
The Governor of Maynas, in obedience to the orders of the Vice
roy, or acting on his own authority and reporting thereon to the
Viceroy, disposes of the troops under his command in the various
sections of the territory, some in permanent details to preserve
peace among the Indians or to defend the Brazilian frontier and
some in flying squadrons, according to the requirements of the mo
ment — for example, the despatching of troops for different reasons
into Quito in 1812 and 1817, to the Napo and Pastaza in 1819, and
the auxiliaries loaned to Piura in 1818 (D. B. P., Nos. 54 and
57-61). From Lima were shipped the necessary arms, ammunition
and military stores (D.B. P., No. 62).
5) Matters Political. — By order of the Viceroy of Peru, dated
May 17, 1809, the Supreme Central Government Junta of Spain
and the Indies, which governed the nation in the name of Ferdi
nand VII, is proclaimed in Maynas, as it had been in Lima, its in
stallation being celebrated with fiestas and by public rogation for the
release of the King and the triumph of Spanish arms in the war of
independence (D. M. P.^.No. 127).
Frequent instructions were given by the Viceroys of Peru to the
Governor of Maynas to prevent the danger of Portuguese incur
sions, especially in 1808, when the Court of Lisbon removed to
Brazil, as well as to maintain peaceful relations with the Brazilian
colony, as in the case' of the restitution of Portuguese slaves (D. M.
P.. vol. VII, pp. 247-9).
The Viceroys of Peru maintained continuous correspondence
with Maynas in regard to matters of government, as may be ob
served from various documents from 1804 to 1820 (D. M P.,
No. 135).

115
6) Matters Economical. — Not only did the Viceroys, of Peru
appoint employees -in the service of the Maynas treasury but they
issued orders affecting the administration of its revenues (D. B. P.,
No. 64), continuing the taxes which the Indians had to pay, also con
cerning tax collectors' bonds and the method of collecting those
taxes (D. M. P., vol. VU, pp. 244, 245).
The resources of Maynas being insufficient, its expenses were
met by funds drawn from the treasuries of Trujillo and other parts
of the Viceroyalty (D. B. P., No. 66).
The accounts of the disbursing office of Maynas were examined
and audited by the Board of Accounts at Lima, as instanced in the
years 1804 to 1819 (D. B. P., No. 65; D. M. P., vol. VII, p. 246).
7) Matters Administrative. — By royal decree of October 24,
1807, which makes reference to that of 1802, the Bishop and Co
mandante general of Maynas are commanded to prepare regula
tions, mutually satisfactory to them, concerning the personal serv
ices of the Indians, which they shall submit to the Viceroy at Lima
for provisional approval, and for execution while awaiting final ap
proval. That royal decree is reproduced in that of June 17 1819
(D. B. P., Nos. 71 and 75).
Further evidence of the administrative dependence of Maynas
upon the Viceroys of Peru is found in their orders of 1811 to the
Governor of Maynas concerning the visits of intendents and the
drawing of maps. In the orders of 1812, concerning the obligations
on the part of the Indians to lend their services in the carrying of
mails; in those of 1816 concerning the traffic in firearms, and in
various acts and provisions relating to the municipalities, such as
the approval of their charters, their obligation to submit their ac
counts, and the ruling, in 1818, that service on municipal councils
shall not be obligatory on soldiers (D. M. P., vol. VII, pp. 244
and 247-251).
§11. Particular Instances Confirming
the Adherence to the Decree in Cer
tain Localities.
The effectiveness of the Royal Decree of 1802 having been
demonstrated insofar as it deals with the maintenance and func
tions of the Gobierno and Comandancia general of Maynas (which
it constituted and attached as a dependency to the Viceroys of

116 .
Peru), let us prove its efficacy and vigor by the special method of
citing instances arising in certain districts of the Gobierno and
Comandancia general, particularly in those districts which it has
been claimed were not embraced therein.
i) Gobierno of Quijos. — The ancient Gobierno of Quijos, which
had been a dependency of the President of Quito, passed into
dependency upon the Governor and Comandante general of May
nas and the Viceroys of Peru by virtue of the Royal Decree.
On the 8th of August, 1805, the Governor of Quijos, D. Diego
Melo de Portugal, petitions the Viceroy of Peru for leave. of ab
sence on account of illness, which the Viceroy of Peru grants on
the 22nd of September and renews on tbe 14th of March, 1806, on
the particular recommendation of the President of Quito, the
Baron de Carondolet, dated February 7th (D. M. P., No. 115).
On the same date, March 14, 1806, the Viceroy of Peru names
D. Juan Melo de Portugal as Deputy Governor of Quijos, placing
him in charge of the government of the province and the collection
of taxes during the absence of his father (D. M. P., No. 115; D.
B. P., No. 45).
On the 6th of October, 1808, the Viceroy of Peru, in execution
of a judgment of the Audiencia of Lima, removes from office as
Deputy Ci ->ors of Quijos and Iquitos, respectively, D. Juan
Melo and i. *?;..rciso Melo (D. B. P., No. 46).
In order to put down the disorders prevailing in the province of
Quijos resulting from the absence of the proprietary Governor, D.
Diego Melo de Portugal, and the maladministration of the Gov
ernor ad interim, D. Juan Naves, reported by the Governor of
Maynas in the proceedings taken arising therein, the Viceroy of
Peru confides the government of Quijos ad' interim to D. Manuel
Fernandez, Captain of the veteran company on December 23, 1811
CD. B. P., No. 49; D. M. P., No. 116).
The Viceroy of Peru, after rejecting a proposal from the Gov
ernor General of Maynas to appoint a new governor for Quijos,
complies with a later suggestion from the Governor General, and,
on the 12th of July, 1816, names for this charge D. Rudesindo del
Castillo (D. B. P., No. 50; D. M. P., vol. VII, app. 5).
The subordination of Quijos in economical and administrative
matters is no less evident than in the question of appointments.
The Governors of Quijos collect the taxes and make disbursement
rendering account thereof to the authorities at Lima (D. M. P.,
Nos. 110 and 111). Because of the failure of the Governor of

117
Quijos to pay the salary of the parish priest at Avila, the latter re
pairs to the Governor of Maynas with his complaint (D. M. P., vol.
VII, app. 5). The Viceroy of Peru orders the Governor of Quijos
to supply the Indians of his district with the requisite implements
for repairing the roads (D. M. P., No. 112). The Governor of
Maynas despatches troops to aid in the collection of taxes from the
Indians and to punish their deliquency, as instanced in 1817 and
1819 (D. B. P., Nos. 59 and 61 ; D. M. P., vol. VII, app. 5) ; and,
in the same year, 1819, the Viceroy of Peru grants to the Governor
of Quijos the authority to undertake the discovery and pacifica
tion of unchristianized Indians, as to which undertaking the latter
reports to the Governor of Maynas from Napo on the 13th of Sep
tember (D. M. P,, vol. VII, app. 5).
2) Town and Curacy of Canelos  By order of the Governor-
General of Maynas the Royal Decree of 1802 was proclaimed to
the inhabitants of Canelos December 5, 1803 (D. B. P., No. 37).
Bishop Rangel appointed the parish priests and made his pastoral
visit (D. B. P., Nos. 67 and 77).
Most interesting is the memorial addressed to the King on
October 8th, 1814, by Fray Antonio Jose Prieto, missionary
priest and civil authority at Canelos, representing that the Bishop
had persecuted him unjustly and laying stress on the services its
author had rendered His Majesty at the time of the insurrection
at Quito, and giving notice of his memorial to the Viceroy at Lima
and the Governor of Maynas. "All this," he says, "is particularly
set forth in the papers in my case, as shown by the enclosed report
of the Sefior Governor of Quijos, to whose jurisdiction belongs the
town of Canelos" (D. M. P., No. 124).
3) Missions on the Putumayo; — As we have heretofore seen,
the Putumayo missions extend along on both sides of this river from
its source, where the upper missions begin and are known as the
Sucumbios, as far as the Portuguese frontier (before the river
empties into the Amazonas), at which point the lower missions ter
minate. The Comandante of Putumayo, D. Santiago Apolinar de Betan-
cur, writing from the town of that name, on April 30, 1804, re
ported to the Comandante general of Maynas that he had made
known to the people of that section the contents of the Royal De
cree respecting the separation of that province and its attachment
to the Viceroyalty of Lima (D. M. P., No. 135, p. 317).
Occasionally the local authorities of the province of Quito placed

118
difficulties in the way of the authorities of the upper part of the
Putumayo province and it became necessary to invoke the Royal
Decree of 1802. In this connection it is interesting to read the
official letter which, the President of Quito, D. Toribio Montes,
addressed on the 22nd of June, 1816, to the Governor-General Of
Maynas, telling him that, "in conformity with His Majesty's regu
lations, and on consideration of the complaints addressed to me by
the Lieutenant of Aguarico, D. Manuel Velasco, I have instructed
the Lieutenant-Governor of the city of Pasto that, in prompt com
pliance with the said Rojal Decree, Velasco be left free in the exer
cise of his instructions" (D. B. P., No. 81).
The dependency of the upper and lower missions of the Putu-
Mayo on the Viceroyalty of Peru and Comandancia general of
Maynas is fully established.
In 1803 and 1805 the Governor of Maynas requests the Viceroy
at Lima to send members of religious orders to the upper and lower
missions for the purpose of developing its population by putting an
end to the Indians' custom of abandoning the settlements and re
tiring to their former habitations in the depths of the forests. In
1808 this same Governor announces the visit of the Bishop and
exhorts the people to put the roads in condition and give him the
proper reception (D. M, P., vol. VII, pp. 213, 214).
The incursions of the Portuguese, who would follow up the
course of the Putumayo, and, breaking, in upon the missions, capture
the Indians, seize the crops and take possession of lands, were the
source of constant worry and the subject of continual communica
tions by the Lieutenants of Putumayo with the Governors of May
nas and the Viceroys of Peru (D, M. P., No. 106; id. vol. VII, pp.
215-226). By order of the Governors of Maynas, census or tax lists were
made up of tax-paying Indians of the upper and lower Putumayo
missions, as was done with respect to the towns of .Sucumbios and
Aguarica in 1813, and Yaguas, Santa Maria and Tictmas in 1819
(D. M. P., Nos. 108 and 109).
The expenses of the military post on the Putumayo were charged
against the treasury of Maynas and were ordered and approved by
the Governor-General, as shown by vouchers of 1804 to 1821 (D.
M. P.; No. 107).
4) Santiago de las Montanas. — The Royal Decree of 1802 was
communicated to the inhabitants of Santiago de las Montanas Feb-

119
ruary 10, 1804 (D. B. P., No. 37) ; and, in obedience thereto, that
circumscription was left under the jurisdiction of the Maynas au
thorities, as indicated by the matter of the collection of taxes, which
was made under orders of the Governor-General, who directed the
drawing up of the Indian tax lists and examined.into and prescribed
the operation of the treasury of Maynas with respect to the collec
tion, receipt and disbursement of funds and public sales of the
gold bullion with which the Indians made their payments, as shown
by vouchers from 1807 to 1821 (D. M. P., Nos. 120 and 121).
The Governor of Maynas also prescribed measures, as in 1816,
by which the uncivilized Indians who had then recently established
themselves in the vicinity of Santiago de las Montanas, on the bor
ders of the river, were treated with gentleness and forbearance to
the end that they might be attracted and civilized (D: M. P., No.
122). 5) Lamas and Moyobamba. — By virtue of the Royal Decree
of 1802, the territories of Lamas and Moyobamba, which had
always belonged to the Viceroyalty of Peru, pertaining to the
ancient province of Chachapoyas, became a part of the Gobierno
and Comandancia general of Maynas^ not, however, without some
resistance on the part of the Intendent of Trujillo, which required
an express order of the Viceroy of Lima to overcome (D. B. P.,
No. 44). In 1808 the Governor of Maynas appeared to be in full
exercise of his authority over those territories, as will be seen from
the measure he enacted in compliance with the orders of the Vice
roy at Lima, for the amelioration of the condition of the Indians
and suppression of the abuses under which they suffered (D. M.
P., No. 119).
§111. Alleged Nullification of the Royal
Decree of 1802.
i) No Nullifying Act Whatever in Existence^— The Republic
of Ecuador, which at first denied the existence of the Royal Decree
of 1802, then its validity, and later its enforcement and observance,
as a last resort took refuge in the pretence that it had been an
nulled, making use of every sort of argument but the one only that
could be of any effect: the production of the text of any act of the
Spanish sovereign annulling that decree.
There is no such act of nullification. If one did exist, dearly

120
the burden of proof rests upon Ecuador. It is more than enough
foi the defence of Peru that she has demonstrated that the Royal
Decree of 1802, not only had a legal existence, but that it was en
forced and confirmed. Let us see, however, what are the argu
ments advanced to sustain this claim of annulment.
2) The Supposititious Pedemonte-Mosquera Protocol. — The
supporters of Ecuador coincide in affirming that the Royal Decree
of 1802 was annulled, as established, they say, by the Pedemonte-
Mosquera protocol of 1830. Some of them content themselves with
that affirmation, while others base upon it their further arguments.
Very well, then. Neither has that protocol ever existed, as we
shall show in a most convincing manner when we take it up in its
appropriate place in this work. Nor does the minute or draft which
they attempt to clothe with such character warrant the assumption
that the annulment may be considered as proven.
It is alleged that on the 11th day of August, 1830, a conference in
relation to the boundary question was held at Lima between the
Minister of Foreign Affairs of Peru, Sr. Pedemonte, and the Pleni
potentiary of Colombia, General Mosquera, who, on the 24th of
July, had thrown up his office as plenipotentiary, and on the
10th of August was sailing in the direction of his own country.
And that is the conference in which, it is said, General Mosquera
stated that the Royal Decree of 1802 "was modified" (without ex
plaining how or when), that "Maynas and Jaen were dependencies
of the Viceroyalty" (which?) "in 1807, when the Bishopric of
Caqueta, or Yapura, and Andaquies was being organized"; that
"the province of Jaen de Bracamoros and Maynas returned to the
possession of the new Kingdom of Granada, and in the Court
Guide of Spain" (an official government directory and guide pub
lished annually) "for the year 1822, that province is found to be at
tached to the Viceroyalty of the new Kingdom" (D. M. P., No. 26).
How, from these unskilfully drawn sentences, can proof of the
annulment of the Royal Decree of 1802 be deduced? At all events,
it would be but the mere interpretation of Mosquera, who, as we
shall see from his letter to Bolivar, was convinced of the vitality of
that decree and of the obstacles he would have to meet in the nego
tiations if Peru should invoke it. Solely for the purposes of his
defence of Colombia's pretensions, he had recourse to the argument,
for what it might be worth, that the Bishopric of Caqueta was or
ganized within that of Maynas, suggesting thereby that the Royal

121
Decree was merely ecclesiastical in character and proffered the
Court Guide of Spain as proof of its nullification.
3). Court Guide of Spain and Maps. — We confess that we have
not read the Court Guides of that epoch ; but sufficient to enable us
to. form a conclusion is that which is said of them by the defenders
of Ecuador, who have seized upon this point of Mosquera's with
much enthusiasm.
In the Spanish Court Guide for the year 1804 the Gobierno and
Comandancia general of Maynas appears as embraced within the
Viceroyalty of Peru. It continued to be so represented in the Guides
for the year following, up to 1819, when it figured in both Viceroyal
ties — in that of Lima and that of Santa Fe. In the Guide for 1820,
as well as in that for 1822, cited by Mosquera, in designating the cap
taincies-general and military governors of the provinces, army posts
and fortified towns beyond the sea, it says: "New Kingdom of
Granada: Maynas, Lieutenant-Colonel D. Joseph Rafael Caraveo,"
but locates the fortified city of Guayaquil in the Viceroyalty of Peru.
If the Court Guides were to constitute full proof and the ques
tion of boundaries were to be decided in accordance with the prin
ciple of uti possidetis of 1810, there would be no doubt, then, ac
cording to this course of argument, that Maynas belonged to
Peru. And, having adopted the uti possidetis from the moment of
emancipation, Colombia, which was born and proclaimed her in
dependence in 1819, would have been able to dispute with Peru the
possession of Maynas, according to the Guide of that year ; but not
Guayaquil, which then, as in 1820, when it was emancipated, fig
ured in the Viceroyalty of Lima.
But the Court Guides, although called "official" and made up in
the government departments, do not always conform to the facts.
Their accuracy depends on the exactness with which the clerks edit
the notes in the light of their knowledge of the antecedents of
their preparation. The possibility of error is easily apparent, deal
ing, as the guide does, with a colonial government of such vast ex
tent, so far off, unsettled by insurrection, and at times in revolt
against the respective central governments.
Be that as it may, the guides never possessed sufficient authori
tative force to invalidate official documents such as go to establish
the validity of the Royal Decree of 1802 and its enforcement during
the period preceding the cessation of the Spanish regime in those
regions.

122
And the same may be said of the maps and geographical writings.
When, on the 9th of March, 1858, the Plenipotentiary of Peru re
plied to the Government of Ecuador, he stated most properly : "In
a conflict of authority between a regularly enacted law as to boun
dary lines and the narration of a geographer, however learned the
latter may be, there can be no doubt, under the most ordinary rules
of criticism, as to which should be preferred. A traveler — a geog
rapher — may accumulate data which is inexact, and, being copied by
one after another, the existence of certain sovereign enactments
concerning boundaries would be overlooked. If, however, the law
is valid and efficacious, as is the Royal Decree of 1802, what would
the data and descriptions of all the geographers in the world amount
to? Humboldt, even the great Humboldt, erred in his designation
of the boundaries between New Granada and Brazil, as held unani
mously by the neo-Granadan Congress" (D B. P., vol. I, p. 119).
4) Notes on Matters.' — The defenders of Ecuador cite various
incidents, taken chiefly from the work of Vacas Galindo, to prove
that the Presidency of Quito intervened, subsequently to the Royal
Decree of 1802, in matters pertaining to the Government of May
nas. It would be necessary for one to have more detailed infor
mation as to these cases in order to determine intelligently the
circumstances of each; but it is not strange to us that certain peti
tions should emanate from the Presidency of Quito, or that assist
ance in men and moneys should be sent during the war, or that
it should co-operate in other ways with the government exer
cised by the Viceroy of Peru over these territories, for it was
just and proper, in those trying times of insurrection, that those
in power should aid each other, and even that the President of
Quito himself- should find himself under the orders of the Viceroy
of Lima, as the direct representative of the Spanish sovereign, at
a time when the Viceroy of Santa Fe, deprived of authority and
power by the emancipation of New Granada, could do nothing.
In accordance with the Royal Decree of 1802 the Gobierno and
Comandancia general of Maynas depended in its entirety upon the
Viceroy of Peru, and, by virtue of that decree, appointed the gov
ernors, gave them their orders and decided matters as the superior
authority, Whatever may have emanated from the Presidents of
Quito in the way of assistance or intervention. We have already
seen that one of them, D. Toribio Montes, asked for the annulment
of the royal decree, and that in consequence its reconfirmation in

123
1819 became necessary. We have shown also that Maynas was
continuing in its dependency on the Viceroy of Peru as late as 1820.
None of the documents alluded to as proof of the intervention or
mediation of the Presidents of Quito in the affairs of Maynas
amounts to a nullification of the Royal Decree of 1802, nor does
a single one of them show that the Viceroy of Peru had ceased to be
the superior authority over Maynas.
5). The Constitutional System of Spain. — One of the support
ers of Ecuador insists that, beyond question, part of the Royal De-
dree of 1802, by which the protection and temporal government of
the missions was entrusted to the Governor of Maynas, "was ex
pressly revoked by the Constitution of 1812 and the act of the
Cortes" (the Legislature of Spain) "of June 23, 1813"; and, in
support of that contention, he argues as follows :
Articles 324 and 325 of the Constitution of 1812 placed at the
head of each province two authorities: a governor, called the jefe
politico* and a provincial council (Diputacion provincial). Article
335, Section 10, charged the provincial councils de Ultramar (be
yond the seas) "to look after the material welfare, good order and
advancement of the missions for the conversion of the infidel In
dians." In conformity with that injunction in Article 16 of Chapter
II of the act of the Cortes of June 23, 1813, dealing with provincial
organization, it was prescribed that "the Diputaciones de Ultramar
shall see to it that the inhabitants scattered throughout the valleys
and mountains shall be concentrated in the towns. * * *" And
as the Royal Decree of 1802 conferred on the Governor of Maynas
the temporal government of the .missions, that decree was annulled
by those enactments of the Cortes at Cadiz by which the govern
ment was entrusted to the provincial councils.
The writer states that, by the repeal of those provisions in 1814,
the Royal Decree was revived, but that when, in 1820, they were
re-enacted under the constitutional regime, the Royal Decree was
thereby again annulled. A proof of this, he adds, is the royal
order of January 11, 1821, issued in response to the petition of a
canon and resident of Quito, "ordering the Jefe politico of
Quito to devote his attention to the missions established in the ter
ritory under his command, giving heed to the Provincial Council
and the Bishop."
From all of which it may be gathered that, the jurisdiction of
the Viceroy of Peru having come to an end in the time of Fer-

124
dinand VII, the politico-economic government of the missions es
tablished on both shores of the Maranon returned to dependency
upon the province of Quito.
It will at once be observed that, instead of offering the
text of any provision by which the Royal Decree of 1802
is annulled, or by which the territorial circumscription therein
created is abolished, "an argument" is submitted — an argument, too,
based upon measures signifying nothing of the kind. The enact
ment that there should be a council in each province, and that those
beyond the sea should perform the duty of bringing about the con
version and advancement of the Indians, does not mean that a
council could not be established in the province of Maynas, or that
its Governor should cease to intervene in the temporal govern
ment of the missions, either as jefe politico or as president of that
corporation, and, much less, that, by virtue of such measures, the
territorial division should be altered, withdrawing from the Vice-
royalty of Peru the province of Maynas and giving it to the Vice-
royalty of Santa Fe.
Nor does the royal order of January 11, 1821, prove anything in
this connection. The petitioners asked that there be created in
Quito, with funds emanating from the Jesuits, a college of mis
sionaries, for the propagation of the faith in various territories
specified, including a part of Maynas. Desiring to favor the mis
sions, and particularly those in the provinces beyond the seas, for
the purpose of "providing them with a sufficient number of evan
gelical workers and furnishing them with all the protection they
needed," His Majesty, the King, ordered that the jefe politico of
Quito "should devote his entire attention to the management of
those existing in the district under his command." That royal
order responds to necessities of a purely religious character and
does not specify which were the missions embraced in the province
of Quito.
It does not result, therefore, that the Royal Decree of 1802 was
annulled by those proceedings, or by the measures of a general na
ture enacted during the first two periods of the constitutional
regime of Spain.
6) The Independence and War. — According to other defenders
of Ecuador, the Royal Decree of 1802 was annulled: "first, by the
only power competent effectively to accomplish it, that is, by the
successor of the King of Spain in the exercise of sovereign power,

125
to wit, the town of Quito, by virtue of the act of independence;
and, later, by Colombia, by virtue of the right of a conqueror in war."
It is true that the fact of independence of the colonies annuls
the colonial law, provided the emancipated peoples do not accept
it voluntarily; and it is also true that in the exercise of their
sovereignty, which was not acquired by inheritance from the King
of Spain but by force of the act of emancipation itself, those peoples
could conform or not to the Royal Decree of 1802, preserving or
modifying, as they pleased, the organization therein established;
but it was not in the town of Quito that the powei resided to con
firm or annul the Royal Decree, nor was it annulled by the fact of
Quito's independence.
The inhabitants of the town of Quito did not rise against Spain
in 1809, but against Joseph Bonaparte and in favor of Ferdinand
VII, or in 1810, when they sought to organize in direct dependency
on the Council of Regency of the mother country. That condition of
affairs, however, was brought to an end in the year 1812 by the
action of the Viceroy of Peru, D. Jose de Abascal, and of the new
President, D. Toribio Montes, called El Pacificador, and, subse
quently, with no embarrassment whatever, the province of Quito
continued in submission to the Spanish authorities until after the
battle of Pichincha in 1822, by virtue of which, through the victory
of the combined armies of Colombia and Peru, it was emancipated
and united itself to Colombia, but without taking with it the province
of Maynas, which remained a part of Peru. How could Quito have
annulled the Royal Decree of 1802 when it did not emancipate itself
by its own efforts or make any disposition of Maynas? Also, and
even considering that province as the successor of the King of
Spain, how could it invoke the royal decree creating the Audencia
of Quito, and yet refuse to recognize the authority of the sovereign
rule subsequently to enact the decree of 1802?
The people who could have annulled the decree were those of May
nas, but they did not do so. In Maynas the insurrections of the In
dians in 1809 were organized against the abuses growing out of con
flict between the .civil and ecclesiastical authorities; the disorders in
Quijos in the year 1810 did not assume the character of rebellion,
and those of 1811 were suppressed by the royalist troops despatched
to the Napo river under the command of Lieutanant Governor Fer
nandez Alvarez, Captain of the Veteran Company of Maynas. All
this Peru has proven by documents, which also show the dependence

126
of those territories on the Viceroy of Lima. The province of May
nas emancipated itself in conjunction with Peru, swearing the in
dependence in common in 1821 and continuing with her down to the
present day (D. M. P., vol. 1, pp. 127-138, and documents cited).
As to the annulment of the Royal Decree of 1802, by virtue of the
fact of Colombia's conquest of Peru, we shall take up that question
when we. come to examine into the treaty of 1829. It is enough
for the present to say that that treaty, which put an end to the war,
confirmed each party in the possession of its respective territory. No
mention was made of the Royal Decree of 1802, nor was the devo
lution of Maynas spoken of, but, on the contrary, the principle of
uti possidetis "before the independence" was accepted.
From the foregoing it is clear that there has been no act of
annulment of the Royal Decree of 1802 and the lack of convincing
force in the effort to show that there was such an act is manifest
from the character of the arguments resorted to.

CHAPTER VII.
Gobierno of Jaen.

Summary :

I. The province of Jaen, in the Viceroyalty of Peru.— 1. Conquest of the
Bracamoros; founding of Jaen. — 2. Gobierno of Yaquarsongo
and Pacamoros. — 3. Creation of the Audiencia of Quito.— 4. The
Corregimiento of Yaquarsongo and the Gobierno of Jaen de
Bracamoros. — 5. The province of Jaen, belonging to the Bish
opric of Trujillo, Vicepatronate of the Viceroys of Lima.
II. Creation of the Viceroyalty of New Granada; proceedings for the re
incorporation of the province of Jaen into the Viceroyalty of
Peru. — 1. Report of the Director-General of Tobaccos, 1766.—
2. Royal order of June 1, 1784, authorizing the reincorporation. —
3. Reports from 1788 to 1792.
III. Towns in the Gobierno of Jaen.
IV. Boundaries of the province of Jaen. r
§1. The Province of Jaen in the Vice-
royalty of Peru.
i) Conquest of the Bracamoros; Founding of Jaen. — In 1538
Captain Pedro Vergara began the discovery and conquest of Paca
moros, or the country of the Bracamoros. In 1542, after routing
the son of Almagro at Chupas, the President and Governor of Lima,
Vaca de Castro, sent Vergara to pursue his conquests in Braca
moros, entering by way of Piura, also Captain Juan Porcel, who was
to enter through Chachapoyas. A report made at the instance of
Gaspar Hernandez Marino, who accompanied Porcel, sets forth the
services rendered by those captains in the regions mentioned. They
founded Nuevo Jerez de la Frontera and certain other towns, from
whence, in 1547, they hastened, at the call of the President and
Governor, D. Pedro la Gasca, to engage Gonzalo Pizarro, who was
routed at Jaquijaguana (D. M. P., Nos. 138, 139).
Don Pedro de Gasca entrusted the entrance of the Bracamoros
country,, which had been held by Porcel, to Diego Palomino, who
founded Jaen, as reported by that President, in his letter of Septem
ber 21, 1549, to the Council of the Indies (D. M. P., No. 140).

128
2) Gobierno of Yaguarsongo and Pacamoros. — On the 10th of
November, 1556, the Viceroy of Peru, the Marques de Canete, con
fided the entrance to Bracamoros to Juan Salinas, with the title of
Governor and Captain-General of Yaguarsongo and Pacamoros,
giving him authority to extend the discovery for twenty leagues of
territoiy towards the north from Zamora, without prejudice to the
boundaries of the cities of Jaen and Santiago de los Valles (D.
M. P.. No. 142).
In an account of his labors, written in 1565, Salinas sets forth
the services he had rendered in Peru during the period of thirty
years, righting under the orders of Presidents Vaca de Castro and
La Gasca, against the rebels, in extending the domain of the King
in Bracamoros and Yaguarsongo, and in repeopling the cities then
existing and founding others, such as Valladolid, Santiago de las
Montanas, Loyola and Santa Maria de Nieva (D. M. P., No. 141 L
As a reward for those services, he was confirmed in his govern
ment and conquest of the provinces of Yaguarsongo and Braca
moros during his own life and the life of his son, who was desig
nated as his successor by royal decree of May 7, 1571 ; the King
afterwards, in 1578, conferred on him the rank of Adelantado
(governor of a province). (D. M. P., No. 142.)
3) Creation of the Audiencia of Quito — During the govern
ment of Salinas the Audiencia of Quito was created by royal decree
of Philip II in 1563, expressly including the towns of Jaen, Vallado
lid, Zamora, etc. (Law 10, Title 15, Book II) ; and in this Way the
government passed from the jurisdiction of the Audiencia of Lima
to that of Quito, although continuing under the Viceroys of Peru,
on whom the latter audiencia also depended.
About that time the demarcation formerly made of the audi
encias was reviewed, as shown by the communication addressed on
the 26th of April, 1565, by the licenciado Castro. Governor of
Peru and President of the Audiencia of Lima, to the Council of the
Indies, in which he said: "Also, in the partition of the districts
between this Audiencia and that of Quito, they did not deal fairly
with your Lordships in leaving the city of Jaen in the district of the
Audiencia of Quito, because it is closer, by more than thirty leagues,
to this city (Lima) than the port' of Payta, which remained as a
district of this city and is nearer this citv than to Quito" (D. M.
P., No, 144;.

129
4) The Corregimiento of Yaguarsongo and the Gobierno of
Jaen de Bracamores. — Because of the death at an early age of the
son of D. Juan Salinas, the government he exercised over Yaguar
songo and- Pacamoros passed into the hands of D. Juan Alderete
and D. Alonso de Vilanova, whom we find making appointments of
subordinates in 1582 and 1585 (D. M. P., No. 143). Later that
government was abolished and restricted to that of the mere Corre
gimiento of Yaguarsongo, distinct from that of Jaen.
In 1617, in conformity with the report of the Viceroy of Peru,
the Prince de Esquilache, the Corregimiento of Yaguarsongo was
abolished, the settlements of Valladolid and Loyola (Cumbinama)
were attached to the Corregimiento of Loja and those of Nieva and
Santiago de las Montanas to that of Jaen (D. M. P., No. 145).
On the 29th of March, 1623, the rank and title of Governor of
Jaen de Bracamoros was established for the first time, to designate
the command over the united districts of Santa Maria de Nieva and
Santiago de las Montanas. To that charge Philip IV appointed
D. Pedro Castillo Velasco, with civil and criminal jurisdiction and
the authority to designate lieutenants (D. M. P., No. 146 j.
In 1627 that governor submitted to the King certain memorials
in which he complained that the Corregidor . of Chillaos was col
lecting taxes in Pimpincos, a town in his jurisdiction, because if was
five leagues within the territory of Jaen, and proposing also certain
measures for the exploitation of the mines of Chirinos, which like
wise were within the confines of Jaen, arid for the pacification of the
savage tribes of Indians. The Council of the Indies conformed to
the request in the Pimpincos matter, and, as to the others, agreed
that the Viceroy should be authorized to provide the means to the
ends desired, transmitting, with its reply, the requisite royal order
(D. M. P., No. 147;.
The Compilation of the Indies, published in 1680, in Law 1*
Title 2, Book V, relating to the creating of offices, mentions the
Gobierno of Jaen de Bracamoros, which continued to figure as such.
5) The Province of Jaen, Belonging to the Bishopric of Tru
jillo; Vicepatronate of the Viceroys of Lima. — On the creation
of the Bishopric of Quito in 1545, and in conformity with the
demarcation made in 1543, "the entrance and settlements of the
Bracamoros" were embraced therein (D. M. P., Nos. r32, 63).
The creation of the Bishopric of Trujillo being authorized in

130
1577, its diocese was made up, under the authority of the royal de
cree of 1611, of a considerable portion taken from the Bishopric of
Lima and a smaller part from that of Quito; included in the new
Bishopric was all the territory of Piura and the entire province of
Jaen (D. M. P., No. 64).
From this resulted serious conflicts in the exercise of the royal
patronage with respect to the presentations of the curacies of the
Gobierno of Jaen, the perquisite being claimed, as vicepatronate
by the President of Quito, on whom the Gobierno depended in
temporal matters, and by the Viceroy of Peru, who exercised the
right in the other parishes, and who regarded himself as the real
representative of the royal prerogative.
Not only did the diocesan administration suffer by those conflicts
but it was further embarrassed by the annoyances and delays in the
repair of 230 leagues of rugged and uneven roadways from the
city of Quito to that of Trujillo, which was only eighty leagues-from
Lima, over level and much frequented roads (D. M. P., No. 149J.
For reparation of such evils, the Bishop and Chapter of Tru
jillo appealed to the Prince de Esquilache, Viceroy of Peru, who,
on the 23d of March, 1621, decreed, in the name of His Majesty,
that all presentations of benefices and curacies in the Bishopric of
Trujillo should be made by the Gobierno and Audiencia of Lima,
in spite of the fact that they were outside of the district of that
government (D. M. P., No. 149;.
Subsequently the Bishop of Trujillo besought the King to con
firm the action by royal decree, but, in 1622, the Council of the
Indies resolved that the President and the Audiencia of Quito should
submit a report, and the matter was thus brought to a standstill
(D. M. P., No. 149).
After renewed efforts on the part of the Bishop of Trujillo
through different channels, and on the. recommendation of the Coun
cil of the Indies, two royal decrees were issued on the 13th of De
cember, 1679, conceding to the Viceroy of Peru the royal vice
patronate over the entire Bishopric of Trujillo, and, consequently,
over the province of Jaen ; and the Bishop of Trujillo and the Pres
ident of the Audiencia of Quito were so advised (D. M. P. No.
150;.

131
§11. Creation of the Viceroyalty of New
Granada; Proceedings for the Reincor
poration of the Province of Jaen into the
Viceroyalty of Peru.
The Viceroyalty of Santa Fe, created in 1717, was extinguished
six years later. On its re-establishment in 1739, the Audencia
of Quito passed into dependency thereon along with the Gobierno
Of Jaen, which in temporal matters was immediately subordinated
to that Audiencia.
But enclosed as was the province of Jaen within the provinces
remaining in the Viceroyalty of Peru, such as Piura, Cajamarca and
Chachapoyas, the reasons bearing weight in connection with its
separation from Quito in spiritual affairs were even more apparent
in their application to affairs temporal; nevertheless, to the great
prejudice of its material interests, the ties that bound the province
to Lima were severed, in consequence of the creation of the Vice-
royalty of Santa Fe.
For that reason various proceedings were initiated, looking to the
restoration of the government of the province of Jaen to the Vice-
royalty of Peru.
j) Report of the Director-General of Tobaccos in 1776. — On
the establishment in Peru of the system for the collection of the
tax on tobacco, the government of Jaen was directed to expedite the
service in connection with its production and purchase in that
province. The Governor, however, declined to act, taking the
ground that he had received no orders to that effect from Santa Fe,
and that the inhabitants were opposed to the service; whereupon,
after setting forth, in bis report of June 3, 1766, that the inhabitants
were desirous of cultivating tobacco and selling it to the Treasury,
and that their own governor had offered to remit for their account
20,000 bundles, the Director-General of Tpcaccos proposed that
the province of Jaen be attached to the Viceroyalty of Lima, because
of the fact that the principal trade relations and easiest means of
communication of the province of Jaen were with the provinces of
that Viceroyalty.
To that proposal the Fiscal consented, adding that, by that means,
success would also be assured in the collections in Santa Cruzada,
which theretofore had been attended by the greatest difficulties.
The Viceroy of Peru decreed that the record in the case be re-

132
ferred to the Royal Junta of the Revenues from Tobacco (D. M.
P., No. 151;.
2) Royal Order of June 1, 1784, Authorizing the Reincorpora
tion. — The Inspector-General of Peru, D. Jorge Escobedo, also
suggested in 1738 to the Minister D. Jose Galvez the advantage to
be gained by restoring the province to the Viceroyalty, arguing that,
since it had been separated from the Viceroyalty as to temporal
matters while still united in affairs spiritual, great injury had re
sulted to its inhabitants and commerce, besides the increase in the
difficulties of promoting the tax on tobacco.
Minister Galvez replied with a royal order on the 1st of June, 1784,
as follows: "As to the incorporation of the province of Jaen de
Bracamoros into this Viceroyalty, I communicate this day to the
Archbishop- Viceroy of Santa Fe the appropriate order whereby, in
view of what your Lordship has proposed, and the same offering
no objections, he may be notified of and conform to the projected
reunion to said Viceroyalty, to the end that the difficulties resulting
from the separation heretofore made may be avoided" (D. M. P.,
No. 152).
3) Reports from 1788 to 1792.— In 1788, by direction of the
Viceroy of Peru, the officer in charge of the treasury, D. Jose
Gonzalo del Campo, made an extensive report concerning "the ad
vantage that would result to the State and to the revenues from the
incorporation into this Viceroyalty of the province of Jaen de
Bracamoros." The arguments on which he chiefly depended in support of such
incorporation were:
1st. The geographical situation of Jaen, enclosed, as it is, within
the limits of the Viceroyalty of Lima, for its area occupys almost the
center between the districts of Piura, Cajamarca and Chachapoyas.
2d. The difficulties in communicating with the provinces of
Loja and Cuenca, of the Viceroyalty of Santa Fe, whereon
that of Jaen borders along a line of almost impenetrable moun
tains, the difficulties being so great that it is necessary to pass
through the entire mountain ridge in the district of Piura in order
to reach them.
3d. The depopulation of Jaen since its attachment to Santa Fe ;
from a population of 30,000 inhabitants at the beginning of the
XVIIIth century it was reduced to scarcely 7,000 in the year 1780.
4th. The benefits that would result to the public revenues from
such incorporation, especially from the tax on tobacco

133
5th. The great advantages its inhabitants would acquire in se
curing attention to their complaints and in the promotion of agri
culture, industries and commerce, by dependency on Lima.
Later, the Director-General of Tobaccos, D. Miguel de
Otermin, was heard on the subject. He said that the uniting of
the province of Jaen to the Viceroyalty of Lima was a matter as to
which "the King had already vouchsafed his sovereign opinion in
the royal order of June 1, 1784," and that the conformity in juris
dictions, the better administration of the revenues and the rights
of the inhabitants counseled the union of the political government
of that province with the Viceroyalty of Peru, to which it was al
ready united in spiritual government.
A legalized copy of the royal order cited was attached to the
papers in the proceeding, which terminated in the recommendation
of the Fiscal, in 1790, that it be referred to the Viceroy of Lima,
so that, in view of that royal order, he might be advised of the ad
vantages and enabled to make effective representations to His
Majesty (D. M. P., No. 153).
Therefore, even if the reincorporation of the political govern
ment of Jaen in the Viceroyalty were not an accomplished fact,
the royal authority to reincorporate had been given, and the advan
tage of the step had been recognized as well for the general in
terests of the State as for the inhabitants of that province, which,
in religious interests, already depended on Lima.
§111. Towns of the Gobierno of Jaen.
According to the description of the Kingdom of Quito in the
XVHIth century, written by D. Juan Romualdo Navarro, Associate
Judge of the Audiencia, the government of Jaen was composed of
four cities: Jaen, Valladolid, Loyola and Santiago de las Montanas,
and eighteen towns: Palanda, Chunchi, Chito, Simanchi, San
Jose, Sondor, Todos Santos, Charape, Perico, Gamalotes, Nam-
basaca, Chinchipe, Chirinos, Pomaca, Santiago de Forocos, San
Lucas de Pucara, Tomependa and Chuchunga. The last-named
town, he says, is Jaen's port on the Maranon, for, although that
city is situated on its shore, the river is only navigable from Chu
chunga, distant a scant four days by road (D. M. P., No. 154).
We have already said that when the Corregimiento of Yaguar
songo was abolished in 1617, Nieva and Santiago de las Montanas
were attached to Jaen, and Valladolid and Loyola to Loja (D. M.

134
P., No. 145) ; that the Governor of Jaen, D. Pedro Castillo Velasco,
in his memorials to the King in 1627, made it known that Pimpincos
and Chirinos were within his jurisdiction (D. M. P., No. 147).
In the relation sent to His Majesty, also in 1627, by the Bishop
of Trujillo, concerning the curacies and benefices of his diocese,
the priests of that city and of Tpmependa, Chirinos, Salique and
Pucara, figured in the Jaen district (D. M. P., No. 148).
In the description of the Audiencia of Quito made by its Presi
dent, thL- Marques de Selva Alegre, in 1754, the author says that
the Gobierno of Jaen embrace's in its jurisdiction the city of that
name and the ten towns: San Jose, Chito, Sondor, Charape,
Pucara, Chinchipe, Chirinos, Pomaca, Tomependa and Chuchunga
(D. M. P., No. 28).
In the relation concerning the parishes of Jaen with Which D.
Gonzalo del Campo accompanied his abovementioned report of 1788.
those of Jaen, Tomependa, Pucara de Chirinos, Colasay, San Felipe
and Pimpincos are cited. With respect to the last, he says that.
not possessing a synod, the parish is excluded from the plan or
topographical chart of Jaen de Bracamoros (D. M. P., No. 153).
§IV. Boundaries of the Province of
Jaen .
As well on the map of the Bishopric of Trujillo, drawn by its
prelate, Fr. Baltasar Jaime in 1786, as on the map of the Intendencia
of Trujillo, traced by Baleato by order of the Viceroy in 1792, the
province of Jaen appears bounded on the north by the provinces
of Loja and Cuenca, of the Bishopric of that name; on the wept,
by the province of Piura; on the south, by that of Cajamarca, and
on the cast, by that of Chachapoyas, ihose three belonging to the
Bishop; ;e and to the Intendencia of Trujillo, of the Viceroyalty
of Peru. The province of Jaen figures on the map of the Bishopric
as a province of the Bishopric of Trujillo, and, in the map of the
Intendencia, it is excluded as a dependency of the Viceroyalty of
Santa Fe.
In the Brief for Peru, the boundaries of the province of Jaen
are designated, and the boundary towns belonging to the con
tiguous Peruvian provinces pf Piura. Cajamarca and Chachapovas
specified; but we need not go into these details, for the general
lines may be clearly seen on the map-, of the Bishopric and Inten-

135
dencia. They are: on the west, the Huancabamba; on the south.
from Querecotillo to the mouth of the Llaucan, or Cujillo, in tin:
Maranon, and, on the east, the Maranon, lower waters, as far
Santiago. According to the ecclesiastical map, the province of Jaen extends
north over much greater territory than is embraced in the province-
possessed today by Peru and claimed by Ecuador. To understand
this distinction, one must take into account: 1st, that when the
Corregimiento of Yaguarsongo was extinguished, Santiago de las
Montanas was attached to that of Jaen; 2d, that even when San
tiago de las Montanas belonged to the Bishopric of Trujillo, it was
taken in as a part of the Bishopric and Comandancia general of
Maynas by the Royal Decree of 1802, and, 3d, that, whatever might
have been the extent of that province on the north, Peru fixes her
northern boundary in the river Canchis, because up to that line
stretch the towns that voluntarily incorporated themselves therein.
In claiming, in this Arbitration, the province of Jaen, the Gov
ernment of Ecuador has marked out for boundaries, in its Memorial
of 1892, the following: 1st, from the sources of the Macara, a line
which, intersecting the cordillera of Ayavaca, extends downward
towards the south until it meets the lake of Huarangas ; 2d, thence
the present dividing line between the provinces of Jaen and Huan
cabamba as far as the confluence of the river emptying into the
Huancabamba near Chichahua ; 3d, the course of that river as far as
the summit of the cordillera dividing the province from tiiat of
Lambayeque ; 4th, the course of the cordillera, along its sumnrt, until
it arrives at a point over Querecotillo ; 5th, a line descending in search
of the source of the river that runs to the southern part, right at
Querecotillo, so that that town is enclosed within Jaen territory ; 6th
from the confluence of that river with the Chota river, along the
course of the Chota to its confluence with the Chipte river ; 7th,
from that point along a line which, cutting across the Llaucan river
comes up with the Maranon in such manner that it encloses within
the line Pimpingos, Cujillo and Pion, runs up along the upper
waters of the Maranon, and, on its right, meets the mouth of the
southern river at Lonia ; 8th, from its source, a line running along
the foot of the cordillera above Lonia and Jamon (Yamon) in s>>: h
manner that those towns are taken into the demarcation, and, follow
ing along the right bank of the Maranon, descends with that river as
far as the point at which, cutting across the Utcubamba river, it

136
enfolds the towns of Bagua, Chica, Copallin and Peca; thence to the
"embarcadero" on the Chuchunga, and, running along that river, to
the point of its entry into the Maranon (pp. 340, 341).
If, in its Final Memorial, as we have inferred, the Government
of Ecuador claims the line of the supposititious Pedemonte-
Mosquca protocol, then, for the foregoing lengthy and confused
descriptien, the following much simpler courses are substituted :
1st, from the Macara, a line to the source of the Huancabamba,
in the cordillera ; 2d, the entire course of the Huancabamba (as the
western and southern boundary of Jaen), as far as its dis-
emboguement in the Maranon, and, 3d, thence along the course of
the Maranon (as the eastern boundary) as far as Chuchunga. It
is assumed, in that protocol, that the Minister of Peru accepted the
general frontier line proposed by the Minister of Colombia, save
in this, that he proposed in his turn, that, leaving the upper
Maranon, the line should ascend along the Chinchipe to the Macara
— that is to say, leaving in Peru the province of Jaen — a question
which, as stated, remains pending (D. M. P„ No. 26).
The Government of Peru defends . as its own the province of
Jaen, and, as that province is enclosed within its territory on the
west, south and east, it is interested only in fixing the northern
boundary line, which it designates as running from the source
of the Macara, in the Espindula ravine, following the entire course
of the Canchis to the disemboguement of the latter in the Chinchipe.
For the sake of the argument, however, it submits all the bound
aries of the province of Jaen.
The province is bounded on the southeast, it says, by the towns
of Balcho, Cumba, Yamon and Soma, belonging to the province
of Luya and Chillaos (corregimiento of the province of Chacha
poyas, separated from the province of Jaen by the Maranon) ; on
the south, by the circumscriptions of ¦ Pion, Socota, Cochobamba,
Cuterbo and Querocoto, belonging to the province of Cajamarca;
on the west, by the settlements of Huarmaca, Sondorillo and Son-
dor, belonging to the province of Piura, and, on the north, by
the Canchis river, to its confluence with the Chinchipe, the towns
of Zumba and Chito remaining, therefore, in the Corregimiento
of Loja, and those of Chirinos and San Ignacio (with the addi
tions of Namballe, Canchis and Garruchas) in the Gobierno of
Jaen. The line, then, which constitutes the contour of the province of

137
Jaen is formed by the Canchis river as far as the Chinchipe, the
course of the Chinchipe to its entry into the Marafion, follows along
the latter and its affluent, the Cujillo, the Chota and part of the Huan
cabamba to the San Felipe or Sallique river, ascends the course
along the last-named river, taking in the summit of the Eastern cor
dillera, in order to meet the source of the Macara river (D. M. P.,
Vol. V, p. xxix).
We believe that the points in common in those descriptions may
be summarized, simplified and better understood by saying: on the
north, the river Canchis (to which statement Peru confines herself
for the reason given; Ecuador indicates none) ; on the east, the line
of the Chinchipe and the Maranon ; on the west, the line of the Huan
cabamba and its connection with the source of the Macara, and on
the south, the Huancabamba itself (as in Ecuador's last claim),
or a more southerly line, with slight differences between the first
claim of Ecuador and that of Peru.
It is important to note that the Llaucan comes from Chota and
unites with the Socota, forming the Cujillo, in order to empty into
the Maranon.
And it is even more important to note that Pimpincos was a
parochial district of the Bishopric of Trujillo, comprising
several towns of which only the town of Pimpincos depended in po
litical matters on the Viceroyalty of Santa Fe ; but the others, its an
nexes, were outside of the Gobierno of Jaen and dependent on the
Viceroy of Peru. Pion belonged to the district of Chota in the
province of Cajamarca; Balcho, Cumbio, Yamon, and Sonia to
the district of Luya, of the Corregimiento. of Luya and Chillaos,
to the ancient province of Chachapoyas (B. P., p. 170). Ecuador
included those towns in the line of her first claim as though they
had depended on the government of Jaen.

CHAPTER VIII.
Gobierno of Guayaquil.
Summary :
I. Segregation of the Gobierno of Guayaquil from the Viceroyalty of
Peru and its reincorporation therein. — 1. The Gobierno of Guaya
quil passed to the Viceroyalty of Santa Fe when the latter was
formed.— 2. Royal order of July 7, 1803, attaching that Gobierno
to the Viceroyalty of Peru. — 3. Confirmation of that royal order
by those of 1806 and 1808.
II. Effectiveness of the aggregation to the Viceroyalty of Peru.— 1. Po
litical union. — 2. Administration and finances. — 3. Justice. — 4.
Matters excluded in 1819.
III. Towns and boundaries of the Gobierno of Guayaquil.— 1. Description
by the President of Quito, the Marques de Selvaalegre, in 1/54 —
2. Description of the Bishopric of Quito, 1755. — 3. Description by
Judge Navarro, XVIIIth century.— 4. Distribution of tithes in
the Bishopric of Cuenca in 1809 and 1810. — 5. Memorial of the
Deputy, D. Pedro A. Bruno, as to the formation of judicial dis
tricts in the province of Guayaquil in 1814. — 6. Description by
Baleato, 1820. — 7. Resume.
§1. Segregation of the Gobierno of
Guayaquil From the Viceroyalty of Peru,
and Its Reincorporation Therein.
i) The Gobierno of Guayaquil Passed to the Viceroyalty of
Santa Fe when the Latter was Formed. — From its beginning the
Gobierno of Guayaquil, the capital of which was founded in 1535,
had been a dependency of the Viceroyalty of Peru, under the im
mediate jurisdiction of the Audiencia of Quito, until, on the crea
tion of the Viceroyalty of Santa Fe, it became a part of the latter.
As the inhabitants of Guayaquil, however, had depended on the
Pacific coast as the natural outlet for its products and for facilita
ting intercommunication, that change operated to the prejudice of
their interests. Their shipping industry was impaired and their
ports and arsenals deprived of the protection they had always
received from Lima and which was not forthcoming from Santa
Fe (D. M. P., No. 125).
?) Royal Order of July 7, 1803, Aggregating that Gobierno
to the Viceroyalty of Peru. — The Junta of Fortifications and De-

139
t?:i>e in America recommended to the King the advantage to be
•le rived from, tbe restoration of the Gobierno of Guayaquil to de
pendency jh ilie Viceioy of Lima because of the greater facility
to the lafcer over that of Santa Fe in the matter of the sending of
money, troops and munitions of war, the supervision of expenses
and investment of funds, and the lending of opportune aid in its
defense. The recommendation was put in effect by the royal order
of July 7, 1803, providing that the Gobierno of Guayaquil should
thereafter be dependent on the Viceroyalty of Peru and not on that
of Santa Fe.
In his response, on the 19th of December, 1803, the Viceroy of
Santa Fe accepted notice that "His Majesty had resolved to separate
the Gobierno of Guayaquil from dependency on this viceroyalty
and to attach the Gobierno of Guayaquil to the Viceroyalty of
Lima," and stated that he would refer the royal order to the Presi
dent of Quito and the proper officers at the head of the treasury.
The Viceroy of Peru also answered, on the 23d of January, 1804.
stating that he had issued the proper orders to effectuate "the
union of the government of the citv of Guayaquil and its district to
this Viceroyalty," in conformity with that sovereign act (D. B. P.,
No. 84).
j) Confirmation oi that Royal Order by those of 1806 and
1808  When the Gobierno oi Guayaquil was incorporated in
the Viceroyalty of Peru, it found itself under the jurisdiction of the
Audiencia of Quito, except that it depended in mercantile mat
ters ou the Tribunal of Commerce at Cartagena; but by virtue"
of the royal order of 1803, the Tribunal of Commerce at Lima held
itself to be the proper authority in such matters and made the ap
pointment of the deputy of the Commercial Tribunal for Guayaquil.
The Governor raised difficulties, but the Viceroy of Peru declared
that the act of incorporation also embraced mercantile matters, and
confirmed the appointment of the deputy, who then entered upon the
performance of his functions. The Governmental Junta of Com
merce at Cartagena repaired to the KiUg with its complaints, where
upon the latter issued the royal order of February 10, 1806,
providing' as follows: "In view of the recommendations of your
Lordships in your letter of March 25th. of the year last past, re
specting the question as to whether, in consequence of its aggre
gation to the Viceroyalty of Lima, the province of Guayaquil should
depend for mercantile matte's on your commercial tribunal or that

140
of Lima, his Majesty has been pleased to order that such aggrega
tion is absolute, and that, in consequence, mercantile matters
must be referred to the Commercial Tribunal at Lima and not to
that of Cartagena." The order was also communicated to the
Viceroy of Peru for execution (D. B. P., No. 86).
It will be observed that that royal order of 1806 not only con
firmed the aggregation of the Gobierno of Guayaquil to the Vice-
royalty of Peru, but declared positively that the aggregation was
absolute. By another royal order, of January 8, 1808, the jurisdiction of
Peru was ratified and it was declared that the deputy of the Com
mercial Tribunal at Guayaquil should render decisions in mercantile
matters and allow appeals to the Tribunal at Lima (D. B. P., No.
87).
§11. Effectiveness of the Aggregation
to the Viceroyalty of Peru.
The aggregation, therefore, was accomplished, and in a manner
so complete, that it affected, not only, affairs, political and military,
but those of all classes, including matters judicial.
i) Political Union. — There is one fact revealing, in a most
convincing manner, just how the Gobierno of Guayaquil was held
to be united with the Viceroyalty of Peru, as forming an integral
part of it and its political system.
By royal decree issued in the name of Ferdinand VII on the 22d
of January, 1809, the Supreme Central Junta of Spain, considering
that the dominions of the Indies ought to have national represen
tation by a corresponding number of deputies and constitute a
part of that Junta, ordered that" each of the existing viceroyalties
and the lesser captaincies-general should elect a deputy for that
purpose. The order also provided, in effect, that elections should be held in
the chief municipalities of the districts, and that from those elected
a tribunal of three members should be formed, to sit as a royal junta,
from which should be chosen by lot the one among the three who
was to be the deputy from the viceroyalty to represent it as a voting
member in the Supreme Junta.
Guayaquil did not take part in the elections held in the Vice-
royalty of Santa Fe, but did participate in those of the Viceroyalty

141
of Peru, and even enjoyed the satisfaction of seeing its elector, D.
Jose de Silva y Olave, figure as a member of the ternate; in which
he was successful in the drawing of lots and was proclaimed Deputy
for the Viceroyalty (1809).
This means that the whole of the Viceroyalty of Peru was repre
sented as a part of the Spanish nation by the deputy elected by
Guayaquil (D. M. P., No. 232).
2) Administration and Finances. — As examples of the authori
ty of the Viceroy of Peru in administrative matters, we note: his
decree of June 28, 1810, subordinating the administration of posts
at Guayaquil to the chief at Lima (D. M. P., No. 233), and the
appointment of perpetual councilman of the municipality of Guay
aquil, made on the 7th of February, 1812, in favor of D.
Vicente Aviles, to exercise his office in the same manner as in the
cases of the other councilmen throughout the viceroyalty (D. M.
P., No. 235).
With respect to matters of finance pertaining to the Gobierno of
Guayaquil, it is en gh to cite the account of receipts and expendi
tures rendered by the Accountant-General of Revenues at Lima
September 12, 1811, covering the principal office of the administra
tion of revenues and the twelve subordinate officers of that province
(D. M. P., No. 236).
3) Justice. — In 1809 the Governor of Guayaquil, D. Bartolome
Cucalon, seized and sequestrated the property of D. Carlos Lago-
marcino, to the value of 140,000 pesos, under the pretext that the
latter was in correspondence with the Quito insurgents. The Vice
roy of Peru caused the record in the case to be brought to Lima,
and, on the advice of the Fiscal, ordered a stay in the proceedings
and restitution of the sequestered property. The Governor ad
interim carried the order into effect, but when the proprietary
Governor returned to his post, he entered a new order of imprison
ment and revived the attachment.
The Viceroy of Peru thereupon ordered that the case be brought
before the full bench of the Royal Court of Audiencia at Lima, ac
companied by a certified copy of the royal orders dealing with
"the absolute aggregation of that province" (Guayaquil) "to this
Viceroyalty." At its session of June 28, 1810, the Royal Court
unanimously held that the orders of the Viceroy should proceed
to execution, vacating forthwith the order of imprisonment and
quashing the attachment, and without allowing the appeal pending

14Z
before the Court of Audiencia at Quito to serve as an excuse for the
slightest delay, "because, in view of the separation from the Audi
encia of Quito of the province of Guayaquil, and its aggregation,
in all its departments, to the capital (Lima), that Audiencia must
conform to the dispositions made in this proceeding by His Ex
cellency, the Viceroy, based on the advice taken in consultation
with his law officers." The judgment of the Royal Court was con
curred in by the Viceroy (D. M. P., No. 238).
The Royal Court of Audiencia at Lima, therefore, held with the
Viceroy as the superior authority in dealing with questions of
justice arising in Guayaquil, and made reference to the proceeding
in which, acting on advice taken in consultation with his law
officers, the Viceroy of Peru had declared himself competent -to
act, in all the ramifications of the matter, by virtue of the absolute
aggregation of that province.
Thus it was that, for this reason, and also because the Audiencia
of Quito had been transferred to Cuenca as a result of the insur
rection, the residents of Guayaquil had to carry their cases to
Lima. So the municipality of Guayaquil petitioned the Viceroy of
Peru, in March of 1814, that, in view of the hardship to the entire
district of being obliged to repair to Lima "for settlement of mat
ters in litigation," and without ceasing to recognize the fact that it
formed part of his territory at the last demarcation, supreme
jurisdiciqn should be restored to Quito. Yet, on the 14th of April,
in the same year, in concurrence with the Fiscal, the Viceroy de
cided that the petition was contrary to law, because the aggrega
tion of the province of Guayaquil to the Viceroyalty of Peru had
been complete (D. M. P., No. 230).
4) Matters Excepted in 1819.— In view of that refusal by the
Viceroy, the municipality of Guayaquil addressed itself to the Secre
tary of State and of the Affairs of the Indies on the 28th of October,
1815, asking that Guayaquil be united to Quito, "at least for the pur
poses of litigation," for, from the time when, in 1810, the Viceroy of
Peru, the Marques de la Concordia, decreed its separation from the
Audiencia of Quito, which, "being closer," had cognizance of matters
"in litigation," the condition of its inhabitants had been most dis
pirited, they preferring to see themselves defeated rather than to
bring their appeals to Lima (D. B. P., No. 90).
That petition was made a part df the record in the proceeding
then before the Council of the Indies relating to the project of D.

143
Toribio Montes, President of Quito, to erect that audiencia into an
independent captaincy-general, and which record contained also,
as we have said in another place, reports by Minister Requena, the
office of the Accountant-General and the Fiscal (D. M. P., No.
102). In conformity with the Council's recommendations, the royal
decree of June 23, 1819, was issued, wherein the Viceroy of Peru
was instructed that he, as well as the Audiencia of. Lima, should
abstain frorn cognizance of "matters of justice, civil and criminal.
and matters relating to the Royal Treasury in the city and province
of Guayaquil belonging solely to the Audencia of Quito," and mat
ters were restored to the status they occupied before its aggregation
by the Marques de la Concordia in 1810, to Peru (D. B. P., No.
91). The royal orders of 1803 and 1806 were, therefore, tiot nullified ;
nor was it ordered that the Gobierno of Guayaquil should cease to
be a dependency of the Viceroy of Peru in military matters or as
to the general political or administrative system. On the other
hand, there were excepted from the cognizance of the authorities
at Lima matters of justice and finance, over which the Viceroys
had, since 1810, believed they could extend the jurisdiction of Lima.
Considering the date of that royal decree (1819) and the state of
the insurrection in the Viceroyalty of Santa Fe, it is to be presumed
that it never actually became effective.
§111. Towns and Boundaries of the
Province of Guayaquil.
i) Description by the President of Quito, the Marques de
Selvaalegre, 1754 (D. B. P., No. 28).— Of the province of Guay
aquil the Marques de Selvaalegre made a very detailed description,
stating that it contained four principal ports (Guayaquil, Manta,
Santa Elena and Puna), and that it comprised eleven lieutenancies,
namely, Guayaquil, Puna, Naranjal, Yaguache, Ojibar; Baba, Pa
lenque, Daule, Balsar, Puerto Viejo and Punta de Santa Elena.
Besides those settlements, he cites the towns of Machala, Morro and
Chongon (chief town of the Punta de Santa Elena.)
2) Description of the Bishopric of Quito, 1755 (D. M. P., No.
67). — According to this description, Guayaquil "was bordered on
the south by the town of Machala and the coast district of Tumbes,
which country belonged to the Corregimiento of Piura. * * *"

144
The entire area, stretching from the Punta de Santa Elena to the
town of Ojibar, embraces seven lieutenancies, with as many more
curacies, in this order: Babaoyo (Ojibar, Caracol, Ouilca, Man-
gaches) ; Daule (Santa Lucia, El Balsar) ; Baba (San Lorenzo,
Palenque) ; San lacinto de Yaguache (Nauzas and Alonche) ;
La Puna; Puerto de Vie jo (Morite Christi, Picoassa, Charapoto and
Jipijapa) ; Punta de Santa Elena (Chongon, El Morro, Colonche and
Chanduy). 3) Description by Judge Navarro, XVIIIth Century (D. M.
P., No. 196). — This Judge of the Audiencia of Quito, in hir de
scription thereof, states that- the Corregimiento of Guayaquil is
bounded on the north by Esmeraldas, on the south by part of the
Corregimientos of Loja and Cuenca, on the west by the gulf and
coast of the southern sea and on the east by the western cordillera
of the Andes. That corregimiento was one of. great value and use
fulness to the seven lieutenancies of which it was composed; but
those lieutenancies are now wholly independent of the corregimiento,
which is reduced to Guayaquil, the capital, its only city.-
The seven lieutenancies embraced within the boundaries are:
Puerto Viejo, Punta (de Santa Elena), Puna, Yaguache, Babaoyo,
Baba and Daule.
Navarro's description is prior to the segregation of the. town of
Machala, of tlie Lieutenancy of Puna; and, speaking of it, he. says:
"It is bounded on the south by the Corregimientos of Piura and
Loja, the jurisdiction being divided by the lubones river, which
debouches on the banks of the Payama."
By royal order of March 27, 1784, the district of Machala was
separated from the Lieutenancy of Puna; that district entered into
the formation of a new lieutenancy, and the said river Jubones in
consequence became its southern boundary (D. M. P., No. 193).
4) Distribution of Tithes of the Bishopric of Cuenca, 1809
and 1810 (D. M. P., No. 197). — In the scheme of distribution, we
find the towns of the territory of Guayaquil classified as follows for
the payment of tithes :
Province of Guayaquil: Ciudad Nueva, Ciudad Vieja, Yaguachi,
Samborondon, Daule, Balzar, Santa Elena, Morro, Naranjal, Ma
chala, Baba, Babahoyo and Palenque.
Province of Puerto Viejo: Puerto Viejo, Jipijapa, Montechristi,
Tosagua and Canoa.

145
S) Memorial of the Deputy, D. Pedro A. Bruno, as to the For
mation of the Judicial Districts in the Province of Guayaquil,
1814 (D. M. P., No. 198). — That memorial contains a resume of
the tax lists, corrected for 1804 and 1805 by order of the Gobierno,
and made up by D. Bartolome Cucalon, who was Governor of
Guayaquil; in the document figure fifteen lieutenancies, comprising
forty-five towns, with a total of 61,362 souls.
The fifteen lieutenancies are: Guayaquil, Puna, Machala, Santa
Elena, Naranjal, Yaguache, Samborondon, Babahoyo, Pueblo Viejo,
Palenque, Baba, Balzar, Daule, Porto Viejo and La Canoa.
The provincial deputy for Guayaquil proposes the scheme for the
formation of judicial districts of those lieutenancies, and, among
other things, states that "the total length of the province is 576
geographical leagues from the southern end of the Lieutenancy • of
Machala to the northern end of La Canoa * * * and that it
is bounded on the south by the town of Tumbes, of the district*of
Piura." 6) Description by Baleato, 1820 (D. M. P., No.- 199.)— Baleato
says that the Gobierno of Guayaquil "comprises the capital and the
fourteen districts or lieutenancies of Machala, Naranjal, Yaguache,
Babaoyo, Palenque, Balsar, La Canoa, Puerto Viejo,, Santa Elena,
Daule, Baba, Samborondon, Pueblo Viejo and La Puna. * * *"
"Its entire extent is from 24 minutes of the north latitude, «n
which arc located the rivers of Coximies, to 3 degrees, 24 minutes
south, that is, the immediate vicinity of the Sabanilla, or lubones,
river, and its greatest breadth is some 34 leagues by triangula-
tion from the seacoast on the east (sic) to the western skirt of tke
cordillera of the Andes.
"It is bounded on the north by the district of Tacames and the
lauds of the red Indians; on the northeast, by the districts of
Quito and Tacunga ; on the east, by those of Guaranda and Alaus-i ;
on the southeast, by that of Cuenca ; on the south, by the district
of Piura, and on the west by the Pacific ocean."
7) Resume. — The descriptions agree as to the extent and
boundaries of Guayaquil. They differ, however, with respect to
the number and constituent parts of the lieutenancies, this as a result
of the various transformations through which they passed in the
XVIIIth century, one of the most important being the above-
mentioned creation of the Lieutenancy of Machala in 1784.

146
It is important to note their coincidence in designating Machala
as the ultimate district of the Gobierno of Guayaquil, which dis
trict is bordered on the south by the lubones river, as the division
ary line with the province of Piura ; Tumbes, however, is only men
tioned among the many other towns to indicate that it belonged to
Piura.

CHAPTER IX.
Corregimiento of Piura.
Summary :
I. The Corregimiento of Piura, in general. — 1. Its origin. — 2. Its per
tinence to the Audiencia of Lima. — 3. Towns of which it was
composed in the XVIth century. — 4. Its dependency on the
Bishopric of Trujillo.
II. Territory of Piura in the XVIIIth and beginning of the XlXth cen
tury.— 1. Proceedings relating to land adjustment in 1712. — 2.
Statement concerning revenues (1762) and excise accounts (1785
to 1801).— 3. Report of the Deputy, D. Pedro A. Bruno, 1814.
III. The line of the Macara.
IV. The line of the Alamor.
§1. The Corregimiento of Piura, in Gen
eral.
The ancient province of Piura, located to the south of the Go
bierno of Guayaquil and to the west and south of the Corregimiento
of Loja, was always a dependency of the Audiencia and Viceroyalty
of Lima. From its birth it had been a corregimiento; within it was
embraced Tumbes. Let us see, first, what in general the Corre
gimiento or province of Piura was, so that afterwards we may locate
ourselves particularly in the part known as Tumbes, to which one
of the questions in the present litigation refers.
i) Its Origin. — In his first expedition along the coast of Peru
in 1527, Francisco Pizarro discovered the territory of Tumbes,
the port of Paita and other points, including the valley of Chimu,
where the city of Trujillo was afterwards founded.
By royal decree of July 26, 1529, he obtained the right, as Gov
ernor and Captain-General of Tumbes and other provinces of Peru,
which he had gained for the Crown, to continue his discoveries and
conquests over an area of 200 leagues from Temupulla, as far as
Chincha, receiving soon afterwards the rank of Adelantado (in early
times given to the governors of the Spanish colonial provinces).
(D. M. P., No. 169.)

148
Acting under that authority, he undertook his second voyage in
January, 1531, setting out from Tumbes and penetrating into the
interior as far as Cajamarca. He discovered the valleys of the
Sullana, the Chira, Amotape, Huaca, Copis and many others, found
ing the city of San Miguel de Piura, a name which embraced the
entire corregimiento or provinces of which it was the capital.
When, by virtue of the royal decree of June 19, 1840, the de-
marce ion was made of the Bishoprics of Cuzco, Lima and Quito,
the city of San Miguel de Piura, with its whole jurisdiction, was
assigned to the last-named bishopric (D. M. P., No. 63).
2) Its Pertinence to the Audiencia District of Lima. — On the
creation, in 1542 and 1563, of the Audiencias of Lima and Quito,
the province of Piura, including the port of Paita, was included in
the Audiencia of Lima, as were also the provinces of Cajamarca,
Chachapoyas and Moyobamba, all bordering on the Audiencia of
Quito (Laws 5 and 10, Title 15, Book II).
It might perhaps be assumed that, because the 'royal decrees
creating those audiencias speak of the ports of Paita and Piura
as belonging to the Audiencia of Lima, reference was made only
to the geographical point oh the coast and to a single inland city;
but it is evident that in all the demarcations of the period the towns
and cities, with the boundaries of their jurisdictions, are understood.
The city of San Miguel de Piura, conjointly with the port of Paita
and all the other towns of the province of Piura, formed the corre
gimiento, which bordered on the Corregimiento of Loja and the
Gobierno of Guayaquil, as we shall see in a moment.
So certain is this that in Law 1, Title 2, Book V of the Compila
tion of the Indies of the time of Charles II, published in that code
in the year 1680, the Corregimiento of the city of San Miguel de
Piura and the port of Paita are mentioned as a single charge among
those reserved to be prescribed by the King in the Audiencia Dis
trict of Lima.
Thus, then, the Audiencia of Lima extended as far as the juris
diction of the Corregimiento of San Miguel de Piura and port of
Paita should extend, which we shall proceed specifically to show.
3) Towns of which it was Composed in the XVIth Century. —
According to the statement of Lopez de Caravantes, the Viceroy,
D. Francisco de Toledo, who arrived on the coast of Peru in 1569,
designated for the Corregimiento of Piura twenty-six allotments;
Tumbes, Punta la Buja, Paita, Colan, Motape, Sechura, Guanca-
bamba, Ayavaca, Mancora and the others he mentions, which indi-

cate the great extent of its territory (Relaciones geograficas de ln-
iKas, "vol. I, app. No. II, p. cxl).
By royal decree of November 13, 1581, the Viceroy of Peru was
ordered "to draw up a statement" concerning all the towns in bid
government, specifying their authorities and jurisdictions. That
was done by the Viceroy D. Martin Enriquez on the 8th of Feb
ruary, 1583, setting forth the organization of the Corregimiento -of
San Miguel de Piura and port of Paita, then under the charge of
Captain Alonzo Forero, and stating that the said Corregidor (Fer-
ero) had under this jurisdiction the following Indian towns ; a set
tlement next to the city, the towns of Colan, Sechura, Catacaos,
San Sebastian del Valle, Guancabamba, San Nicolas de Tumbes, the
allotment of Ayavaca and the allotments of Chinchasara, Sondor
and Serran, with the town of Frias (D. M. P., No. 172).
At the instance of the Corregidor, Alonzo Forero, a statement
was drawn up in 1593, setting forth his merits and services, among
which were those rendered to that corregimiento during a period
of seven years, such as the construction of goverment buildings,
the cabildo and prison in' the city, the roads from Tumbes to Amo-
tape and Paita and from Tumbes to the mines of Zaruma, the road
from Guarmaca to Cbpis and various irrigation work (D. M. P.,
No. 173).
4) Its Dependency on the Bishopric of Trujillo. — As we ha
seen, there arose the anomaly of the dependency of the Corregimien ;
of Piura in temporal matters on Lima, and in spiritual matters o
Quito. And no doUbt the Archbishop of Lima had to put dif
culties in the way of the jurisdiction of the diocese of Quit< ,
for we see the Bishop of that diocese, Dias Arias, in the XVI
century, repairing to the Council of the Indies to protest against t < .• e
intrusion of that prelate into the affairs of the town of Piura, "whk h
is the city of San Miguel," "and carrying off of the tithes" (D. M.
P., No. 174).
That anomaly ceased to exist on the creation in 1611 of the
Bishopric of Trujillo, which, as we have stated, was formed of a
part of the diocese of Lima and the provinces of Jaen and Piura,
taken from the diocese of Quito; the Corregimiento of Piura from
that time was embraced in the Bishopric of Trujillo (D. M. P., No.
64). In the "relation concerning the curacies and benefices of th*
Bishopric of Trujillo" sent by the Bishop to His Majesty, in March,
1627, these figure as of the jurisdiction of Piura: the parish of ill"

150
city and the parishes of Motupe, Olmos, Sechura, Catacaos, Paita
and Colan, Salas and Penachi, Guancabamba, Ayabaca, Frias and
Tumbes (D. M. P., No. 148).
§11. Territory of Piura in the XVIIIth
and the Beginning- of the XlXth Century.
i) Proceeding Relating to Land Adjustment in 1712. — By
virtue of the royal decree of August 15, 1707, Associate Judge D.
Gonzalo Ramirez de Baquedano, of the Audiencia of .Lima, was
appointed a special judge to preside over the sale and adjustment of
the lands of that audiencia district — that is, to normalize the situa
tion as to Crown lands unlawfully appropriated by private parties,
or the value of which the purchasers had not yet finished paying.
That judge delegated his functions, with respect to the Piura
lands, to the Corregidor, D. Geronirno Vozmediano, who, on the
23d of May, 1712, issued ah order, in which, under the appellation
"Corregidor and Chief Magistrate of the city of Piura and its
jurisdiction," he ordered all the inhabitants of the following-named
towns to appear when cited and present their titles : Tumbes, Amo-
tape, La Chira, Colan, Ayabaca, Chocan, Chalaco, Frias, Pacay-
pampa, Cumbicos, Guancabamba, Sondor, Sondorillo, Guarmaca,
Olmos, Motupe, Salas, Penachi, Canares, Catacaos, etc.
That order, as well as the proceeding based thereon, in which is
set forth the action taken in all of those towns in compliance there
with, and the detailed statements as to the lands, establish conclu
sively the jurisdictional extent of the Corregimiento of Piura at the
beginning of the XVIIIth century (D. M. P., No. 175).
2) Statement Concerning Revenues (1762) and Excise Ac
counts (1785 to 1801).— On the 25th of January, 1762, General D.
Cristobal Guerreros, "Corregidor and Chief Magistrate of the city
of San Miguel de Piura and its province," issued a certification of
the sworn accounts of the royal revenues emanating from the towns
of that province, mentioning, besides tbe capital, Catacaos, Sechura,
Colan, Puerto de Paita, Rio de la Chira, Tumbes, Amotape, Aya
baca, Frias, Pacaipampa, Cumbicos, Sondorillo, Huancabamba.
Sondor, Huarmaca, Olmos, Copis, Motupe, Salas, Penachi and
Canares, including also the subdivisions of some of those towm
(D. M. P., No. 184).
In the accounts of the administration of excise of Paita for 1785

151
figure the receipts taken in by the Receiver's office at Tumbes, La
Guaca, Amotape, La Punta, Querocotillo, Colan and Solana (D. M.
P., No. 186) ; and in the entries in the excise books of Piura for
1794, 1795, 1796 and 1801, appear, in different connections, the
towns of Tumbes, Ayabaca, La Chira, Santa Ana and Guancabamba
(D. M. P., No. 187).
3) Report by the Deputy, D. Pedro A. Bruno, 1814.—
The Provincial Deputy for Guayaquil, D. Pedro Alcantara Bruno,
in the absence of the Deputy for Trujillo, being charged to make
a provisional division of that province into judicial districts, sub
mitted a report on the 19th of April, 1814, in which he designated
the number of inhabitants and indicated the principal towns of Piura
that formed part of the Intendency of Trujillo. In that report he
also set forth the distances of some of the towns from the city of
San Miguel as follows : Sechura, 10 leagues ; Catacaos, 2 leagues ;
Querocotillo, 10 leagues; Amotape, 12 leagues; Port of Paita, 14;
Colan, 14; Port of Tumbes on the North, 50; Frias, 20; Chalaco,
18; Ayabaca, 56; Pacaypampa, 40; Cumbicos, 42; Guarmaca, 60.
He proposed that two judicial districts be formed, at the head of
one of which was to be the city of San Miguel and of the other
the town that might be considered the most suitable (D. M. P., No.
155).
§111. The Line of the Macara.
The territory of the Corregimiento of Piura being known by the
towns contained therein, let us mark out its boundaries with the
Corregimiento of Loja and the Gobierno of Guayaquil. It was
separated from the Corregimiento of Loja on the north by the Ma
cara river, on the east by the Alamor river, and from that of
Guayaquil, also on the north, by the Machala river ; so that its fron
tiers along those provinces were established by three lines, wholly
determined naturally by the course of those three rivers.
The Macara, the first courses of which were called Espindula and
Calvas, and its last and broadest, the Chira, was and continued to
be the divisionary line between the provinces of Piura and Loja,
from the province of Jaen to the point at which it was augmented
by the waters of the Alamor.
Under that line are found the towns we have mentioned, some
of which are so important and so near to it, such as Ayabaca, as
to be constantly cited in the above-mentioned documents as belong-

U2
ing to the Corregimiento of Piura. In one of them, the record
In the proceeding relating to the land adjustment of 1712, appear
the plantations of Calvas and Macara, which give the names to the
river; and, in the relation of Lopez Caravantes concerning the In
dian allotments of 1630, as well as in the certification of revenues
of 1762, is mentioned the town of Chira, the name of which also
is given to that river (D. M. P., Nos. 175 and 184).
Geographers of high authority recognized by Ecuador, such as
Montiifar, Alcedo and Villavicencio, state that the Macara river
marked the limit of the jurisdiction of Piura and the line di
viding,, in that locality, the Kingdoms of Quito and Lima (B. P.,
p. 175) ; and the Government of Ecuador itself so recognized when,
in the Memorial filed in this arbitration by D. Honorato Vazquez in
1892, it claimed, as a part of its frontier, the course of the Macara
river from its sources as far as the Chira (p. 384).
§IV. The Line of the Alamor.
The Chira is a continuation of the Macara, or the Macara itself,
continuing under that name; into the Chira flows the Alamor
through the ravine of Pilares, and the ascending course of the
Alamor up to its source constitutes a great section of the line di
viding the Corregimiento of Piura on the east from that of Loja.
Any doubts, arising with respect to certain boundary points are
dispelled by the evidence furnished in the papers in certain pro
ceedings and by the titles to certain country estates.
In 1712 the authorities proceeded to the sale of the Crown lands
known as Yagueynegro, La Seiba, Totumo and Limon, and, in the
notices of public sales as well as in the conveyances conferring pos
session, the statement appears that they were bounded on one side
by the Solano ravine and on the other by the Alamor river, along
the banks pertaining to the jurisdiction of Piura (D. M. P No
176). Between the towns of Celica, in the jurisdiction of Loja, and that
of Querocotillo, in the jurisdiction of Piura, was located the plan
tation of San Francisco de Leyva, belonging to the Order of
Predicadores (preachers) of Quito. In 1756 the Predicadores sold
a part of that plantation, called Yagueynegro, stating at the tirne
that the part sold was that which fell within the jurisdiction of Piura
—that is, on the border of the ravine of Pilares pertaining and cori-

153
tiguous to the Solana, and, later, a lawsuit having arisen between
the owners of the Leyva and Yagueynegro plantations concerning
the ownership of the Pilares ravine, a litigation was started which
was brought to an end only in 1800 by a decision of the Corregidor
of Loja, wherein it was held that the Pilares ravine was the com
mon boundary line of both corregimientos (D.- B. P., No. 83).
The Provincial Deputy, D. Manuel Cabada, in his memorial of
1814 concerning the division of districts in the Intendency of
Trujillo, states that the Alamor is the dividing line between the
district of the Presidency of Quito and the Viceroyalty of Peru
(D. M. P., No. 188).
And the Government of Ecuador, in the aforementioned Me
morial of D. Honorato Vazquez, also recognizes, as its frontier,
the course of the Alamor down to its confluence with the Chira
(p. 384)..

CHAPTER X.
Lieutenancy of Tumbes.
Summary:
I. Tumbes formed a part of the Corregimiento of Piura, as has been
shown.
II. The line of the Machala river and watersheds of Saruma.— 1. Lands
of the community of Tumbes on both banks of the river.— 2.
Private estates known as The Pedregal, The Corrales and The
Rinconada.— 3. Properties on the Northern bank of the Tumbes.
-^.Plantations of Callancas and the Yomon (the Machala).—
5. Plantation of Sarumilla; most important documents relating
to that estate (1627 to 1825). " .
§1. Tumbes Formed a Part of the Corre-
g-imiento of Piura, as Has Been Shown.
It has been demonstrated fully in the preceding chapter] that the
city of Tumbes, with its territory, always formed a paft of the
Corregimiento of Piura, of which it was a lieutenancy, and a de
pendency, therefore, under that corregimiento, of the Audiencia of
Lima, in the Viceroyalty of Peru.
With the discovery of Tumbes in 1527 began the discoveries of
Francisco Pizarro on the coast of Peru. The Crown granted to
Pizarro the concession of Tumbes and other provinces of Peru
and appointed him governor thereof in 1529. It was from Tumbes
that Pizarro set forth, in 1531, to penetrate into the interior as far
as Cajamarca, conquer the province of Piura and found his capital
in the city of San Miguel.
And the name of Tumbes appears in all the documents we have
referred to for the purpose of establishing the points and territories
to which extended the jurisdiction of the Corregidor of Piura; the
allotments of Indian lands made by the Viceroy, D. Francisco de
Toledo, on his arrival in Peru in 1569; the relation concerning the
towns in that corregimiento written by the Viceroy, D. Martin
Enriquez, in 1583 ; the Corregidor Alonzo Forero's account of his
services in 1593, in which he states that he opened the road from
Tumbes to Motape, Paita and the mines of Zaruma; the relation

155
concerning curacies submitted by the Bishop of Trujillo to His
Majesty in 1627; the record of the proceeding as to the inspection
and adjustment of land tenures instituted by the Corregidor Voz-
mediano in 1712; Corregidor. Guerrero's sworn statement of 1762
concerning the tax paying towns; the accounts of administration
of excise revenues of Paita, 1785, and of Piura, from 1794 to 1801 ;
and the memorial concerning the formation of judicial districts
in Piura drawn up by Pedro Alcantara Bruno, Provincial Deputy
for "Guayaquil," in 1814.
§11. The Line of the Machala River and
Watersheds of Saruma.
Ecuador demands, in her abovementioned Memorial of 1892, that
there be fixed, as the frontier in that locality, the disemboguement
of the Tumbes river into the Pacific, the course of that river Tumbes
to its southernmost point and a line drawn from that point to the
Alamor river (p. 384).
We shall not now undertake to ascertain what were the legal
fundaments on which that claim is based; we merely affirm
positively that it could not have prevailed under the colonial regime,
because she gave up to the Lieutenancy of Tumbes, and consequent
ly, to the Corregimiento. of Piura, the town of Tumbes itself and -all
the territory within its jurisdiction, and that of the corregimiento
which was located on the other side of the Tumbes river, between
that river and the Machala, the boundary line of the Gobierno of
Guayaquil. Nor, having proven it conclusively, is it necessary to dwell on
the facts that the town of Tumbes was a dependency of the Corregi
miento of Piura, and that the towns always conformed to their
jurisdictions, as is indicated by the very appellation of corregi
miento, given to the city of San Miguel, by which it was also
designated. But we do propose to show, by concrete facts, that the
jurisdiction of Tumbes extended over the territory claimed by the
Government of Peru, bounded on the north by the Machala river
as far as the point at which the jurisdiction of Guayaquil termi
nates, and on the east by the watersheds of Saruma along the line
uniting that point with the beginning of the Alamor river, the divi
sionary line with the ancient Corregimiento of Loja.
i) Lands of the Community of Tumbes on Both Banks of the
River. — In 1800 the Intendency of Trujilld carried on a proceeding

1S6
in regard to the accounts of rentals of lands in the community of
Tumbes situated on both sides of the river of that name. The ac
counts for the year 1799 cover the rentals from those lands on
both banks of the river (D. M. P., No. 179).
In 1804 a prosecution was in progress for the malversation of
funds from the Treasury of the community of Tumbes in which
were deposited the proceeds of those land rentals (D. M. P., No.
182). 2) Private Estates Known as the Pedregal, the Corrales and
the Rinconada. — Captain Fausto Miro dying intestate, the judicial
declaration of heirship was made in favor of his brother in 1804
by the judge delegated for the judicial district of Piura. In the
inventories were included the property that had belonged to the
deceased in the country estates known as the Pedregal, the Corrales
and the Rinconada, in the jurisdiction of Tumbes, and of that
property the heir took possession (D. M. P., No. 183).
3) Properties on the Northern Bank of the Tumbes. — On the
30th of December, 1715, at the port of Paita, Captain Juan Manuel
Duran sold to Juan Nunez the swamp and pasture lands which, as
the vendor states in the deed, "belong to me and are situated on the
bank of the" river on which is located the said town of Tumbes
* * * ; on the upper part of the river as far as the Higueron
de la Cordillera, and on the lower part of the river in front of the
Plateros ravine, which is on this bank (looking from Paita)."
The purchaser, Juan Nunez, in his turn, sold part of those plan
tations to Juan de los Rios at Piura, February 10, 1716, stating in
the deed : "A parcel of land, pastures and swamps that I hold and
possess in the said town of Tumbes on the other bank of the river
(looking from Piura), contiguous to said town, from a point oppo
site Cerro Blanco, where the woods end, which is the Cruz de Cana,
and which I fix upon as a landmark, on the river above said town,
and border on my lands known as El Hospital, and, on the lower
part, to a point opposite the Plateros ravine, which lands border
on Crown lands of His Majesty."
In view of those deeds and of an attested report, the demarcation
of the lands was made in 1720 by order of the Corregidor of Piura
(D. M. P., No. 177).
In 1782 a suit was brought by Rosa Flores against Pedro Nunez
involving his right "to the lands lying between landmarks and

157
known as El Hospital, located on the limits of the town of Tumbes"
(to the right of the river) ; the suit was decided by the Alcalde of
Piura, sitting as Chief Magistrate in the absence of the Corregidor
of that province (D. M. P., No. 178).
4) Plantations of Callancas and El Yomon (Machala). — In
the record of the proceeding of inspection and adjustment of land
tenures of 1712, of which we have spoken, appears the publication
of the order of the Corregidor of Piura, D. Jer6nimo Vozmediano,
in the town of Tumbes, and the appearance of Nicolas Medina;
administrator of the plantations of Callancas and Yomon. The
record also shows a very interesting letter of explanation written
by the Lieutenant of Tumbes to the Corregidor on June 12, 1713,
which reads as follows:
"I received your Honor's letter with the order, which I caused
* to be published on a holiday, as your Honor directed me to do ; and,
there being within this demarcation no plantations other than those
of Callancas and Yomon, which belong to Bernardo de Arostegui,
a citizen of Guayaquil, where he resides, I had Nicolas Medina
summoned, a relative of his mother and the administrator of the
plantations, who told me he would go to Guayaquil for the titles.
* * * The plantation produces abundant sustenance for cattle.
It has salt works. It is more than fourteen leagues in length, reach
ing as far as the Yomon river, where there are fields under culti
vation and pasture land. * * * It borders on the watersheds of the
sierra (ridge) and it contains houses and corrals near the sea, since
the port has three squares of houses in an inlet of the sea, where the
salt works are to be found." (D. B. P., No. 92; D. M. P., No.
175). It is enough to suggest, for an appreciation of the importance
of this document, that Callancas is near the line of the Machala,
and that the Yomon is the Machala river itself.
5) Plantation of Sarumilla; Most Important Documents Re
lating to that Estate (1627 to 1825). — Of still more importance,
and, in our opinion, conclusive, are the papers in the transaction.
relating to the sale of the Sarumilla plantation in 1789, because of
its location in the area lying between Callancas, the watersheds
of the Saruma and the surroundings of Tumbes.
Those documents go to show that the Cabildo (ayuntaniiento,
or municipality) of Piura in 1627 made a grant of lands and salt
beds to D. Pedro Aguilar, with the approval of the Viceroy of Lima,
bounded as follows: "For one side, from the Machala river, running

158
lengthwise to the inlet of Las Cruces, called San Nicolas, a distance
of seven leagues from one point to the other, and, from the inlet of
Las Cruces, to the town of Tumbes, a distance of the same number
of leagues; along one side of this river on the royal road of Zaruma,
and, for the rear side, the mountains and watersheds of that town
(Zaruma)." In 1689 D. Juan Echevarria, the heir to that property through his
mother, Doiia Antonia Aguilar, niece of D. Pedro, donated to the
College of Jesuits of Guayaquil the lands of Zaruma and Santa
Gertrudis and, in his last will and testament, of 1697, gave to it
also the salt beds and estates of Callancas and Tumbes.
On the expulsion of the Jesuits and the occupation of their tem
poral property, the Governor of Guayaquil directed the Corregidor
of Piura to make the appraisement of the property held by the
Jesuits in the jurisdiction of Tumbes and to publish the proper .
notices so that its sale might be proceeded with.
Orders for carrying out the sale were, therefore, issued in 1782
by the Alcalde ordinario of Piura, in the absence of the Corregidor.
D. Juan Matias Rodriguez de las Varillas, being commissioned to
make the appraisement, appeared before the Alcalde on the 6th of
September of the same year and reported the completion of his
duties, designating the boundaries of the estates and salt beds
"situated within the limits of the town of Tumbes," as we have just
quoted them.
Those steps taken, the proceedings relating to the sale were con
tinued before the Provincial Council of Quito, because the property
belonged to the Guayaquil college, in accordance with the provisions
of the royal decree of March 27, 1769. Several bidders attended the
sale; D. Miguel Olmedo appeared to have submitted the success
ful bid.
But a separation of the properties, Cayancas, Jumon and Caliguro.
was demanded by D. Juan Manuel Mendieta, and Doiia Maria and
Doiia Josefa Ruiz Diaz, descendants of D. Bernardo Arostegui, who
had married an Aguilar, they being the owners of the estates; and
in its decision of June 20, 1787, the Provincial Council of Quito.
with the President of the Audiencia sitting as its presiding officer,
held that the sale should be restricted to the lands and estates of
Zarnmilla and requested the successful bidder, D. Miguel Olmedo,
to accommodate his bid to such reduction, without prejudice, how
ever, to any rights of action he might have against the claimants to

159
secure all the land granted in 1627 by the municipality of Piura,
as above mentioned.
D. Miguel Olmedo, being agreeable thereto, the Provincial Coun
cil of Quito confirmed the sale in his favor by its order of Septem
ber 26th, and, on the 3d of October, the President of Quito ordered
the Lieutenant of Machala to proceed to the town of Tumbes in
order to establish the purchaser in possession, "notwithstanding
that Zarumilla is in another's jurisdiction," because the sale was a
matter within his cognizance according to royal instructions, al
though he was to be accompanied by the Lieutenant of that locality
(Tumbes), who received orders to that effect from the same au
thority. On the 12th of February, 1789, the Lieutenants of Machala and
Tumbes placed D. Miguel Olmedo in possession of the plantations
of Zarumilla and Tumbes, in the jurisdiction of Piura, stating that
they gave him possession of "all of the river named Cayancas, from
its mouth to the mountain ridge, on the embankment of the said
estate, which boundary, formed by the middle of the river, runs
along the lands of Cayancas recognized as belonging to the family of
Ruiz Diaz * * * ; from its mouth to the mouth of the San
Nicolas de Tumbes river, Islands of Tembleque, Payana and others ;
salt beds of Todas Santos, Santa Gertrudis and others; a point
named El Atascadero and other estates located within said lands
on this side of the aforementioned river Cayancas and the sea
coast." On the following day the proceeding of taking possession was
continued as to the lands on the borders of the Tumbes river "run
ning along the border of that river, from a point at which its bound
ary begins on the upper part, as far as the seashore, passing by
the points named Cabullar, where are situated the irrigation canals
in the parts disclosed, Corral de la Virgen, Hospital, Cerro Blanco,
La Rinconada, El Garbanzal, Pampa Grande, town of Tumbes,
with the estate of Cardon, Sol, which is inland, and others that are
thus on the border of the river on the side of the aforementioned
estate of Zarumilla."
And, in the certificate signed on the 16th, it is stated, in con
clusion, that D. Miguel Olmedo stands possessed of the estate with
the four general boundaries following : "for its frontage, the shores
of the ocean, from the mouth of the Callartcas to the mouth of the
San Nicolas de Tumbes river ; for its rear line, the mountain ridge

160
that leaves the watersheds of Zaruma; for one of its sides, the bor
ders of the Tumbes river, and for the other, the whole course of the
Callancas river."
The Zarumilla plantation was retained in the family of the pur
chaser until D. Jose Joaquin de Olmedo sold it to Citizen Jose
Noblecilla Romero, a resident of the city. The deed of sale, which
was executed at Guayaquil on the 4th of August, 1825, stated that
the property was situated in the jurisdiction of Tumbes.
It is, therefore, established beyond a doubt that the authorities
of Quito and Guayaquil recognized the jurisdiction of Piura as
far as the Machala river, the upper boundary of the concession made
hy the municipality of that city in 1627, and the watersheds of Saru
ma, to which extended the Sarumilla plantation, sold in 1787, re
specting that jurisdiction and making constant acknowledgment
thereof in the record of that proceeding (D. B. P., No. 93; D. M.
P., Nos. 180, 181).
6) Memorials and Geographical Descriptions. — Let us aug
ment this demonstration with evidence afforded by certain memo
rials and geographical descriptions,
The Associate Judge, D. Juan Romualdo Navarro, in his De
scription of the Kingdom of Quito in the XVIIIth century, refers
to the Lieutenancy of Puna, in the Gobierno of Guayaquil, under
the jurisdiction of which, at that time, was the town of Machala.
Tn that work he says that that town was confined on the south by
the Corregimientos of Piura and Loja, "the jurisdiction being di
vided by the Jubones river, which empties at the Payama shoals."
The Jubones river is identical with the Jumon, or Machala (D. M.
P., No. 196). Later, in 1783, the town of Machala separated from
Puna, forming a distinct lieutenancy dependent on the Gobierno of
Guayaquil (D. M. P., No. 193).
The Provincial Deputy for Guayaquil, D. Pedro Alcantara Bruno,
in his Memorial of 1814 concerning the division of that province
into judicial districts, estimated its length to be from the northern
part of the Lieutenancy of Canoa to the southern part of that of
Machala, bounded by the town of Tumbes in the judicial district
of Piura (D. M. P., No. 198).
D. Andres Baleato, in his Description of the Province of Guay
aquil, of 1820, says that it bounds on the south with the judicial dis
trict of Piura and reaches as far as 3 degrees, 24 minutes, or "the
immediate vicinity of the Savanilla, or the Jubones, rivers" (D.
M. P., No. 199).

161
The Ecuadorian geographer Villavicencio also recognizes that
"the Gobierno of Guayaquil bounds with the Tumbes along the
Machala." In the Torres Mendoza collection it is stated that the
town of Machala was "on the border of a river that they called Los
Jubones, three leagues from the sea on the upper river" (Vol. IX,
p. 247). And Alcedo, in his Geographical Dictionary of the West
Indies, says that the province of Guayaquil "extends to the south
as far as the town of Machala, or the Payama shoals, and the mouth
of the Jubones river, in 3 degrees, 17 minutes, South latitude, and
here bounds with the province of Trujillo and jurisdiction of the
Corregimiento of Piura, in Peru."
There can be no- doubt, therefore, that the Machala river, also
called the Jumon, Jubon, Jubones, or Savanilla, is Piura's division
ary line with Guayaquil.

SECTION SECOND
INTERNATIONAL BOUNDARIES.

SECTION SECOND
INTERNATIONAL BOUNDARIES.

CHAPTER I.
The States of Colombia and Peru, and the Provinces
of which they were composed.
Summary :
I. Questions relating to the international boundaries. — 1. Method for
their study. — 2. The Colombian question.
II. The State of Colombia. — 1. Its formation. — 2. Guayaquil; its own
independence, Peru's protectorate over it, and its annexation to
Colombia.
III. The State of Peru. — 1. Its formation and its vicissitudes down to
1827. — 2. Maynas. — 3. Tumbes.— 4. Jaen.
§1. Questions Relating- to International
Boundaries. i) Method for their Study. — Because of the complete inde
pendence of the two States of Peru and Ecuador, it is clear that their
boundaries are impressed with the character of international and
that the controversy in which they are involved must be settled in
accordance with international law.
But those States have their foundation in territories, which, since
their discovery and conquest, had been dominions of Spain, each
separated from the other by boundaries marking out the different
entities of government and official administration ; and, inasmuch as
the land of yesterday is the same as that of to-day, although par
titioned after a different system, and inasmuch as the history of the
early days is not effaced, although it is of value now only as, a prec
edent for the new order, it is, for this reason, that we have studied

166
the identity of the territories and boundaries of those entities of the
colonial epoch.
We can now enter upon the examination of the questions relative
to the present era, and, having to resolve them according to inter
national law, our idea is that the method to be preferred for their
study is, for the first stage, to avail ourselves of the light cast on
them by the history of the treaties and the relations that have sub
sisted between the contending States, then to supply or make up af
terwards any deficiencies in the groundwork of our knowledge by a
resort to the doctrine of general international law, and that branch
particularly which deals with Spanish-America, and, finally, to scru
tinize the powers conferred on the Arbitrator, the better, in the light
of all that has been set forth, to reach a solution of the problem.
The history of the treaties and the relations between the States
growing out of the boundary question should be divided into two
periods, corresponding, respectively, to the study of the treaties and
the relations of Peru with Colombia and of Peru with Ecuador — ¦
that is, we shall adopt Peru's classification and refer to the Colom
bian question and the Ecuadorian question.
2). The Colombian Question. — Although a knowledge of how
the boundary question between the two neighboring republics of
Colombia and Ecuador unfolds itself would at all times be an ad
vantage to us, this study becomes indispensable from the moment
in which Ecuador conceives herself to be the heir to the republic
founded by Bolivar and invokes to her aid the Colombian treaty of
1829. Thus it will be seen that the policy adopted by Colombia in
her relations with Peru growing out of the boundary question was
very different from the attitude assumed by Ecuador, since Colom
bia has always respected the possessory status of Peru as to Jaen
and Maynas and has never resorted to any proceedings for their
"restitution." Let us address ourselves, then, to the so-called Colombian ques
tion. But, before doing so, we shall make clear the manner in
which the States of Colombia and Ecuador were formed — for two
reasons: first, because, it being necessary to study the treaties be
tween those two republics, it is important to ascertain their re
spective legal capacities to contract and obligate themselves, and,
Secondly, because it is very important to identify the provinces of
which they were composed in order to apply the international law
principle of "the sovereignty of emancipated peoples" to the for
mation of states born out of the dissolution of a colonial empire.

167
§11. Tlie State of Colombia.
i) Its Formation. — After gaining the battle of Boyaca, Boli
var founded the republic, "one and indivisible," of Colombia, by
the action of the Congress of Angostura, convened by him, which
declared in the so-called "law of incorporation," enacted Decem
ber 17, 1819, that its territory should be "that which was comprised
in the ancient Captaincy-general of Venezuela and the Viceroyalty
of the new Kingdom of Granada," dividing it into phree
great departments under the names of Venezuela, Quito and Cun-
dinamarca. On August 30, 1821, the Congress assembled at Rosario
de Ciicuta, ratified the Constitution of the Republic of Colombia,
and declared also that its territory "is the same as that embraced in
the ancient Viceroyalty of New Granada and the Captaincy-General
of Venezuela" (Art. 6th), and that "the towns within the area
specified which are still under the Spanish yoke shall, whenever
they liberate themselves, become a part of the Republic, with equal
rights and representation with all the others included therein"
(Art. 7th).
From this the Republic of Ecuador derives the rights she claims,
holding herself forth as the successor of Colombia, without taking
into account the fact that the Congress of Angostura was composed
only of Venezuelan representatives and but one from Granada, that
of Casanare ; that in the Congress of Ciicuta the provinces of the an
cient Audiencia of Quito were not represented, and that neither Boli
var nor his congresses could impose their will upon the towns eman
cipated or to be emancipated, to obligate* them to form a part of the
Republic of Colombia.
The entry of General San Martin into Peru with his Argentine
and Chilean troops in September, 1820, contributed powerfully to
the generalization of the insurrection, inasmuch as the Spaniards
had to concentrate their forces and the Americans saw the oppor
tunity to overcome the principal center of resistance. Guayaquil
declared her independence in October, 1820, placing herself under
the protectorate of General San. Martin, known as the Protector of
Peru, faen emancipated herself from Spain in 1821, uniting with
Peru and fighting along with the Peruvians. Panama, at the other
extreme of the ancient Vicerpyalty, proclaimed her independence
and attached herself to the Republic of Colombia.
Such was the status of things when Simon Bolivar, President
of the republic, set forth from the capital to put an end to the

168
Spanish dominion and unite with Colombia, willingly or by force,
the southern towns of the Viceroyalty of Santa Fe. The battle of
Pichincha being won by General Sucre on the 24th of May, 1822,
the inhabitants of Quito attached themselves to Colombia, and,
shortly afterwards, Cuenca and Loja were incorporated there
in. "A decree of Bolivar," says the Ecuadorian historian, Cevallos,
"confirmed those acts of adherence, organizing the provinces of
Quito, Cuenca and Loja into the Department of the Equator (De
partment o del Ecuador), the government of which was committed
to General Sucre." Restrepo, former Colombian minister, also
states in his history of that republic: "The provinces of Quito,
Cuenca and Loja comprised the vast and populous Department of
Ecuador; Sucre, promoted to General of Division, was chosen to
govern it" (M. P., vol. Ill, p. 167).
The Government of Ecuador appears, then, in history as that of
a department of the one and indivisible Republic of Colombia, and
was composed of three provinces: Quito, Cuenca and Loja. The
province of Guayaquil preserved its independence; that of Jaen
declared its union with Peru.
2) Guayaquil; Its Own Independence, Peru's Protectorate
Over It, and Its Annexation to Colombia. — On the proclamation
of Guayaquil's independence, by a general vote of the people in ac
cordance with the act of October 9, 1820, D. Jose Joaquin Olmedo
was elected governor of the province, and, under his presidency, a
superior governmental junta was instituted with powers prescribed
by the ordinance enacted by the General Provincial Assembly, con
voked for that purpose.
On the 30th of December of the same year, the new government
of Guayaquil entered into an agreement with D. Tomas Guido, acting
under a commission from General San Martin, the first article of
which reads: "The Province. of Guayaquil, by reason of its situa
tion as the boundary between the States of Peru and Colombia, shall
maintain an independent government under the provincial con
stitution, ratified by the concurrence of the towns of the province;
until the States of Peru and Colombia shall be liberated from the
government of Spain, whereupon it shall be at full liberty to at
tach itself to the State it may find best suited to its needs." In
the articles following, the province of Guayaquil is declared to be,
during the period of the war, "under the protection" of the Captain-
General of Peru, who was also to have command of its troops.

169
On the 23d of February, 1821, General Mires "intimates" to the
Government of Guayaquil, in the name of Bolivar, that it ought to
unite itself with Colombia, of which it was a part, just as, it is
said, intimation was given to Quito. Governor Olmedo replied
that the province "had been declared at liberty to attach itself
to whichever great union it found to be best suited to its needs
among those to be formed in South America."
On the 15th of May, General Sucre secured from the Govern
mental Assembly its promise to recommend to the electoral board
of the province its union with Colombia, and that the province place
itself under Colombia's auspices and protection. In reporting that
transaction to his government, the General stated that he had not
been able to coax any more out of Guayaquil, and that the im
portant move to be made then was to take steps to bind the interests
of Guayaquil to Colombia and help along the liberation • of Quito.
On the 2d of January, 1822, Bolivar writes from his quarters at
Cali to the Government of Guayaquil, announcing his arrival with
troops, and demanding to be informed, before his entry into the
capital, that Guayaquil had proclaimed its union with Colombia,
because the territory of Guayaquil belongs to that State, and, further,
he says, "a province has not the right to separate itself from a
union to which it belongs, and it would be a violation of the laws of
nature and policy to permit an intermediate province to become
a battle field between two strong States."
Bolivar's intention to obtain Guayaquil at all hazards was clearly
shown by those words, and this explains what we shall have to say
later concerning the relations of Colombia with Peru and the course
of their diplomatic negotiations.
Governor Olmedo went before General San Martin, Protector of
Peru, with his complaint and the latter wrote to Bolivar from Lima
on the 3d of March, 1822, protesting, in terms of great nobility and
courtesy, against "the serious intimation" he had given to Guaya
quil. "I venture to say to you that it is not within our destiny to
draw the sword in any undertaking that would not be a confirmation
of the right we have by battle achieved to be acclaimed the libera
tors of the country. Let us leave Guayaquil to consult her destiny
and to consider her own interests, in order freely to unite herself
with the section most advantageous."
But, after the battle of Pichincha, Bolivar renews his importuni
ties. He enters Guayaquil and issues a decree on the 13th of

170
July, 1822, in which he assumes the political and military" com
mand and convokes the representatives of the province.
After much deliberation, the electoral junta of the province, on
the 31st of that month, proclaims its union with Colombia, and, on
the 3d of August, Bolivar decrees that the province of Guayaquil
shall constitute the Southern Maritime Department of that Re
public. General San Martin wrote to Bolivar on the 29th of the follow
ing month, announcing his intention to return to Chile as soon as
the Peruvian Congress convoked by him had assembled, and ex
pressing his sentiments as follows: "With regard to the incor
poration of Guayaquil, permit me to say, General, that the decision
of this important matter did not lie with us; the war ended, the
governments would have settled it without the embarrassments
which may now result to the interests of the new States of South
America." The foregoing is set forth in detail in the documents contained
in Exhibit No. 1 to the Memorial of Peru.
In resume : The annexations of Quito, Cuenca, Loja and Guaya
quil to Colombia were accomplished by acts of union, more or less
voluntary and solemn on the part of those provinces, coincident with
their occupation by the troops of the republic. In Guayaquil re
mained the germs of future discord.
§111. The State of Peru.
i) Its Formation and Vicissitudes Down to 1827. — The Vice-
royalty of Lima being the most ancient center, the best organized
and most closely identified, with Spain, was the scene of the most
determined opposition to the revolutionary movement. In aid of
that movement, General San Martin appeared off the coast at the
head of an expeditionary force of Chilean troops, and disembarked
in September, 1820. He penetrated the Peruvian territory, exciting
and generalizing the Peruvian insurrection, and finally crushed the
dominion of Spain.
On the 12th of February, 1821, at Huaura, General San Martin
promulgated a "provisional ordinance" for the government and ad
ministration of the new State of Peru, creating a central authority
to serve until it might be reconstituted in some form to be deter
mined on by the will of the people, and divided the territory into

171
departments and districts, under the direction, respectively, of presi
dents, or prefects, and sub-prefects. The General remained in
supreme control of the government, under the title and rank of
Protector of Peru.
On the 28th of July, 1821, a few days after General San Martin's
entry into Lima, he there proclaimed, with all solemnity, the inde
pendence of Peru. San Martin continued the war, with varying
fortunes, and, when he thought the time ripe, convoked the con
gress which was to frame the constitution of the Peruvian state.
The constituent Congress assembled on the 20th of September, 1822,
whereupon San Martin renounced his discretionary powers and
returned at once to Chile, notwithstanding the entreaties of the
congress that he remain at the helm.
The Congress adopting the republican form of government, estab
lished first by the act of December 17, 1822, the bases for the con
stitution, and, soon afterwards, on those bases, framed the con
stitution that was sworn to and promulgated on the 12th of No
vember, 1823.
As soon as General San Martin had taken his departure, the Con
gress appointed a governing junta, composed of three persons, but
shortly afterwards that junta was abolished and the executive power
entrusted to a single individual, Riva Agtiero, with the title of
President. The fortunes of war went more and more against the
Peruvians, however, and finally they called on Bolivar for aid. On
the 18th of March, 1823, Riva Agiiero entered into a convention
with Bolivar, who promised to send 6,000 men, and, on the.j4th of
May following, the Congress resolved to invite him to conduct the
war in person. This Bolivar did, having first procured the authority
of the Colombian Congress. He entered Lima September 1, 1823,
after its abandonment by the Spanish, who had been in possession
since June 19th.
The Congress, by its act of the same month of September, en
trusted to Bolivar "the salvation of Peru," investing him with un
limited authority, subsequently confirmed by the act of February
17, 1824, suspending all constitutional provisions that might conflict
with the dictatorial powers conferred on the Liberator.
Bolivar undertook the campaign against the Spaniards, achieving
the victory at Junin on the 6th of August, 1824. He then returned
to Lima, where political affairs claimed his attention, leaving the
command of the army in the hands of General Sucre, who, on the

172
9th of December, won the battle of Ayachuco. Those two battles
decided the fate of Peru's independence.
Bolivar thereupon appeared before the Congress and resigned
"the supreme power it had placed in his hands." That body, how
ever, confirmed him in those powers, and, by act of February 10,
1825, conferred on him the authority to suspend all constitutional
provisions, laws and decrees that might be opposed to the demands
of the public good, and, in the exercise of that authority, to carry
into effect all measures essential to the organization of the republic.
Distinguished by the further titles of Father and Savior of Peru,
Bolivar continued at the head of the government of the republic
until September 3, 1826, when he took ship at Callao to return to
Colombia. His departure and the political events in Colombia and
Peru — arising in the latter republic out of the discontent produced
by Bolivar's constitution — disturbed the good relations theretofore
existing between the two countries. Later we shall discuss that
situation more fully.
Let us now see what became of the territories claimed by
Ecuador when the State of Peru was formed and recognition was
accorded her, as such, by the State of Colombia, and while such
good relations were maintained between those states.
The "provisional ordinance" decreed at Huaura by General San
Martin on the 12th of February, 1821, divided the Peruvian terri
tory into departments, with subdivisions into districts, the govern
ment of the former being committed to presidents or prefects, while
the districts were to be administered by sub-prefects, or district
governors. It was into one of those departments, that of Trujillo, that were
combined the districts of Piura, Lambayeque, Cajamarca, Chota,
Huamachuco, Pataz, Chachapoyas, Maynas and Jaen, the respec
tive governments of which were, on the 5th of December, 1822,
entrusted to the persons named by the President of Trujillo, the
Marques de Bella- Vista, in his note of that date transmitted to the
Secretary of War and Navy (D. M. P., vol. VII, p. 301).
Article I of the Peruvian Constitution of 1823 declares that "all
the provinces of Peru, united iaio'u single body politic, form the
Peruvian nation." Integral paits of that single body politic were
the aforementioned Gobiernos of Maynas and Jaen as well as
Tumbes, which belonged to that of Piura.

17$ I
2) Maynasfc4-Tiie. Gobierno land^ComartdanGia general ofvMay-
nas was a dependenoycinriact and' law of the Viceroyalty sd Peru,. 3
as.we have shown; d^wntof;t:hfiranom^mtjofilhe.«.Per,uviaiiiiiiMe-;<'l
pendence.;ii3 stiaa 0$ tsvsisdvt cniesh 00 zoc/ssYi&Zin &p& .asmbsssq
The insurrections in Jeberos, La Laguna and Napo in 1809;: were -.
not: against Spaiobfeat walfe by-^waj^of .protest on tMe-parts of ;the In
dians against the particular persons- in government over them, under 3?
whose rule they had suffered- abuse and violence of every descrip^1!
tion (D. M. P., Nos. 113 and 125.) The slight disorders at Quijos
in 1812 occasioned by the appearance oi some of the Quito insur
gents were easily suppressed-' by a detachment from the veteran
company. of. Maynas-.- aM sbsm irinsfc: v-sSt kissisC aidw r. i.ihsm
These very facts show that those territories, especially Quijos,
continued under'the authority? of- the Viceroy -of Lima: and ¦ of the
Governor - of eMayuas, for athe-.it troops " sent -front:* Maynas to q
quell .the disturbances bv Napo, were: despatched, by 7dhe Viceroy 2
of Lima; the expenses of the prisoners taken on that occasion ^were.
chargjed againsfetfi©: treasury. of . Maynas,. ;and the; Viceroy : himself
approved the action ;takenj. by the Governor of. Maynas -in. subduingoJ
the Quito insurgetitaiA'ho, had entered^Q,uijos .(D« M. Pr, Nos, 117,-1'
118-;-D..-B. P.,. Np.;57jk,;; itfZj&jiarsiwaco idb^rk? ysii -s^rtit'-mxi as
The inctependert.ee; ofr-Maynas.haoV-its. birthrin, the .movement rfe^r
suiting in the independence of the, entire- Vk«royalty-o^f -peru, prors;;
claimed at-LimagJuly.;28i 182L Tiv August -of ^fhe. same year;? the,:t;
cabildo, or municipality of Moyobamba, communicated the-f fact; of ^i.
Maynas' independence to Governor Manuel- Fernandez Alvar^i ,.;
who called together _at ,-Pebas,. . Abe^riflcipal . Spanish ;gfficer;s-=t€K~!;
confer upon the .situation, ^.^At/jtha/t cpnfce:neg::they;:^ieeided.-tO;-:'
abandon the terri^ory^^ajfei instir^ge^ts; {D»;M^Ep.i;yoL,JIIy'.Tpt?t:
LXVlf.-tytrytK. -^[-ycfr-i nfisz J>sA " .niflSI'ri 'QRS HB!iE!Fr-?£5*? Io -wisre^i-
The, new^ Pesay\m;tg%w$&™£$L ^di,to-iejjgagg;,jflt^-a--s|ruggle::
with the royah^ts^jn^thajyigcah^y m4%3kr\ ijpfe§kiWrt^4b§*^-«
to the cav^e.o^^ej^n^npi^ugfetji^e-^^ejv^hr^r party,;;
whichcalled itsel^he-ge^ce'iia^^^a^rgigj^^.^ vpL.V.iJr^
aPP- ?)-,j j s»ls.H b®& ,UCE .oft" .1 ,1£ .*J) M&n maimmam 3*§Js in
On the organization of the government of Peru, its admin; -,
istration. embr^id^ejh^jgpv^njig^jfl^lflgyggf in 4hgs#p%0ment
of£Trujillo, .exe^c^lj mii^^^J&^lfe^' Nicolas, .Arripla,.,-,
as showa by jtjb^Tafpre^ejg^oneaV, note oi^the president qi that
department totthe?,,-Mafques.4§ 'Bella- Vista (D. M. P., vol VII,
P- 301). .?tsi?3? UdlKriCt' f. '/• ~ ' '.'">sr.

174
The government of Maynas, therefore, continued to form a part
of Peru on her appearance as a state, its inhabitants participating
by declarations and acts in the common struggle for Peruvian inde
pendence, and manifesting no desire whatever to unite themselves
with Colombia.
3) Tumbes. — We have already seen that under the colonial
regime Tumbes was always a dependency of the Corregimiento of
Piura, and, therefore, of the Viceroyalty of Peru.
On the creation of the Intendency of Trujillo, it was divided
into districts, one of these being Piura (1784), in which was em
braced Tumbes ; and, within the demarcation of Piura, Tumbes re
mained when General San Martin made his entry in September,
1820. Trujillo and Piura were the first cities to declare themselves inde
pendent, Tumbes at once adhering to the declaration made by Piura,
as evidenced by the minute book in which were recorded the pro
ceedings of the municipality.
The minutes of the proceedings on the 7th of January, 1821. show
that, at a meeting of the municipality of the town of San Nicolas de
Tumbes, "a dependency of the city of Piura," called for the purpose
of considering the official communication dated the 4th of that
month from the governing junta of that city and accompanying
papers, news was received that Piura's "independence and liberty
have been declared and proclaimed." There was read at the meet
ing the proclamation of the. 29th of the previous December by the
Marques de Tor re-Tagle, Governor-Intendent and Commandant-
General, which was among the papers accompanying the said com
munication, and "exhorted the people subject to its jurisdiction tc
declare and proclaim their liberty ahd independence and their de
testation of despotism and tyranny." And, after giving expression
to the gratification with which the news and the order were
received, the meeting resolved "to make public manifestation
thereof with the solemnity due so fitting a declaration of inde
pendence," and proceeded to arrange the festivities in celebration
of the momentous event (D. M. P. No. 200, and Plates 1 to 3 of
vol. VI).
The declaration of the independence of Tumbes anticipated that
of Guayaquil (October 9th) and the general declaration at Lima
of the independence of Peru (July 28, 1821) ; Tumbes followed in
its emancipation the destinies of Piura, as it had followed that
province i>ndcr the colonial regime.

175
By virtue of the decree of Huaura, February 12, 1821, Piura be
came a district of the Department of Trujillo, and Tumbes, being
embraced in that district and department, remained in Peru ; it
was among the first to declare and proclaim the independence.
4) Jaen. — The province of Jaen, physically enclosed within the
provinces of Peru and united with her in its sentiments, interests
and constant relations, emancipated itself and entered into the
struggle as an integral part of Peru, following the revolutionary
current set in motion by_the entry into Peruvian territory of Gen
eral San Martin.
At an assemblage of the populace of the city of Jaen "and the
principal towns of Colasay, Chirinos, San Ignacio and Tomependa"
on the 8th of May, 1821, it was resolved at once to elect D.
Juan Antonio Checa as Governor ad interim, and, at a subsequent
meeting held on the 4th of June in the same city, which was attended,
in addition to its own citizens, "by many of the leading citizens
of the other towns," "the country was proclaimed and the glorious
independence declared," and the appointment of Checa ratified.
On the 11th of the same month those events were communicated
by Checa to General San Martin through the medium of the
Governor of Lambayeque and of the President of Trujillo, Checa
.submitting to the General an account of his actions and asking for
assistance. His superior officers congratulated him cordially, recog
nizing him as governor of the district or province of Jaen; the
Minister Monteagudo informed him that in due course he would
forward instructions as to the reforms deemed best to be intro
duced. The independence of Peru solemnly proclaimed at Lima on
the 28th of July, General San Martin was named Protector,
whereupon, through the medium of Governor Checa, the tidings were
conveyed to Jaen and the towns conformed with the greatest en
thusiasm. It is shown in the minutes of the proceedings of those
towns that the town of San Ignacio declared for General San Mar
tin and, on the 16th of September, 1821, with heart-felt rejoicing,
proclaimed him Protector. The town of Cujillo also swore obedi
ence to him "with the same degree of gratification already mani
fested in its declaration of independence," and a Mass was held
in thanksgiving on the 3d of October (D. M. P., No. 157).
D. Pedro Checa figures as Governor of the District of Jaen in
the iiiemoiandum of December 5, 1822, setting forth the personnel
of the districts of tbe Department of Trujillo, transmitted by h=

176
President, the Marques- d& B.dla-Vista, to the Secretary of the
Department. of War and Navy (D, M, P,,"vol. VII, app. 9).
Jaen was constant in support of Peru in. the struggle for inde
pendence, being, one. of the provinces "united intb a, single body
politic," which;_accord.u^1^tfi(eJ£"pn^iU^n.|rf"l-823-, formed the
Peruvian nation. ,. ., a; ni '-^ &v.t- mfou nn,a vv^l ,
Let us observe now how the. boundary qufiStfonadefcelops in the
relations between the States of Colombia and Peru constituted and
organized as above set forth.

CHAPTER II.
Treaties and Relations of Peru with Colombia.
Summary:
I. The Mosquera-Monteagudo treaty of 1822 (ratified 1823).— 1. Instruc
tions of the Government of Colombia to its Plenipotentiary. — 2.
Conferences and negotiation of the treaty.
II. Representation of Jaen and Maynas in the first Peruvian Congress. —
1. Explanations with respect to Maynas. — 2. Colombia's assent
as to Jaen.
III. A most inportant letter from Bolivar in 1822. — 1. Concerning the
annexation of Guayaquil. — 2. With respect to Jaen, Maynas and
Tumbes.
IV. Galdeano-Mosquera convention of 1823 (not ratified). — .1 Proposals
of the Plenipotentiaries. — 2. Matters agreed to by the Plenipo
tentiaries, and legislative disapproval thereof.
V. Colombian law of 1824 concerning territorial division.
VI. Bolivar's policy in Peru; his action with respect to those matters.
VII. Bolivian Constitution of 1826 and its nullification in 1827.
VIII. Resume of the boundary question down to 1827. — -1. The question in
general. — 2. The question in its relation to Jaen. — 3. The ques
tion in its relation to Maynas. — 4. The question in its relation to
Tumbes.
§1. The Mosquera-Monteagudo Treaty
of 1822 (Ratified 1823).
i) Instructions of the Government of Colombia to Its Pleni^
potentiary. — The sessions of the Congress of Cticuta concluded,
Bolivar, in the beginning of October, 1821, appointed Senator D.
Joaquin Mosquera Minister Plenipotentiary near the Government of
Peru, charging him especially to negotiate with that government a
treaty of alliance for the common defence.
The Colombian Minister of Foreign Relations communicated to
Mosquera the appropriate instructions on the 11th of December,
cautioning him, above all things, to insist with the utmost firmness
that the province of Guayaquil should remain incorporated as a part
of the Colombian territory "without permitting the slightest doubt
to appear as to whether or not it should be so incorporated in
fact and law" (D. M. P., No. 4).

178
In those instructions, says Sr. Valenzuela, in the Memorial he
prepared by order of the Government of Colombia in 1893, Sr.
Gual invoked the principle of uti possidetis "in its true significance,"
and then directed Sr. Mosquera to propose the following to the Pe
ruvian Government : "The two contracting parties bind themselves
not to enter into any negotiations with the government of His
Catholic Majesty on the basis of the respective territories as they
were delimited in the year 1810 — that is, the territorial extent of
each captaincy-general or viceroyalty in America — unless by laws
enacted subsequently to the revolution, as has happened in Colombia,
there are incorporated into a single state two or more captaincies-
general or viceroyalties" (D. M. P., vol. VII, p. 102J.
That is to say, the negotiations on the part of Colombia began
on the basis of the doctrine of colonial boundaries, insofar as they
might not have been altered by law subsequently to the revolution —
a reservation most important to Colombia, inasmuch as, without it,
the union of the Viceroyalty of Santa Fe with the Captaincy-general
of Venezuela could not be maintained; nor, having been a depend
ency of the Viceroyalty of Lima, could the union with Guayaquil,
and it was tp that end that the instructions for negotiation of the
treaty with the Government of Peru were chiefly directed, since the
inclusion of Venezuela was of no interest to Peru.
2) Conferences, and Negotiation of' the Treaty. — Mosquera
arrived in Peru in the month of May, 1822, and at once began his
conferences with the Minister of Foreign Relations, D. Bernardo
Monteagudo. No obstacles were encountered, says Sr. Valen
zuela, until they arrived at the discussion of the article recog
nizing the integrity of Colombian territory and the inclu
sion therein of the province of Guayaquil. The Peruvian negotiator
made the point that Peru having recognized as independent the gov
erning junta of Guayaquil, it would be inconsistent to accept
or consent to the proposal that that territory should be aggregated
to Colombia. "We must confess," adds Valenzuela, "that the Pe
ruvian negotiator was right on that point. What we zvonder at is
that ho did not call to his aid the circumstance that, in conformity
with the royal order of July 7, 1803, the Gobierno of Guayaquil be
came a dependency of the Viceroyalty of Peru and not of that
of Santa Fe, a dependency declared by. the royal order of April 23,
i807, to be absolute; he proposed that Guayaquil be left at liberty
to incorporate herself in Colombia or in Peru. * * * The two

179
negotiators, therefore, did not succeed in reaching an agreement,
since neither would yield his claim, and so decided to withdraw from
the discussion the point as to the exact demarcation of the terri
torial boundaries, reserving it for a special agreement thereafter"
(D. M. P.," vol. VII, p. 102).
On the 6th of July, 1822, however, Mosquera and Monteagudo
concluded at Lima a treaty of amity and alliance between the two
countries ; the 9th article stipulated : "The demarcation of the exact
boundaries that are to divide the territories of the Republic of Co
lombia and the State of Peru shall be settled by a special convention
after the next constituent congress of Peru shall have authorized
the executive power of that State to regulate this point; and any
differences that may arise in the matter shall be resolved by con
ciliatory and peaceful measures, as is proper between two allied and
sister nations" (D. B. P., No. 3).
That treaty (of 1822) was ratified by the Congresses of Peru
and Colombia in 1823.
When it was signed by the plenipotentiaries, Guayaquil still
preserved her independence, Jaen had united with the new
Government of Peru and Maynas continued in its dependence on
that government. The treaty, therefore, maintained the status quo
and left for a later occasion only the definite fixing of the boundaries
separating the territories of the two States ; the question as to Guay
aquil, the only one discussed, was left undecided, and there was
mutual recognition by the States as then constituted.
§11. Representation of Jaen and May
nas in the First Peruvian Congress.
i) Explanations with Respect to Maynas. — The Supreme Deler
gate of Peru, the Marques de Torre-Tagle, published on the 26th
of April, 1822, the "decree regulating elections" to be held for the
formation of the constituent Congress. Article 9 of the regulations
fixed the numbei of representatives apportioned to each depart
ment on the basis of the census of population published in the
Official Guide of Peru for the year 1797.
The Minister Plenipotentiary of Colombia at. Lima, D. Joaquin
Mosquera, addressed a note to. the Peruvian Minister of Foreign
Relations on the 20th of June, 1822, in which, after informing the
Secretary that the inhabitants of Quijos and Maynas were to be

180
convoked for the elections to the Colombian Congress in accordance
with her constitution, and stating that those towns did not appear
in the Official Guide of Peru for 1797, as they had formed a part
of New Granada since 1818, the Minister asked him to be good
enough to "explain" clearly to the writer the interpretation in which
article 9 of the regulations referred to should be accepted, for
doubtless, he said, the explanation would be sufficient to "obviate
the necessity of reclamations" in that regard (D. B. P., No. 2). ,
On the 6th of July, the date on which the aforementioned treaty
was concluded, Mosquera acknowledged receipt of the letter sent
to him the day before by Minister Monteagudo, wherein the latter
informed the Plenipotentiary that the Supreme Delegate had agreed
to issue an order to the President of Trujillo, directing that "the
population of Quijos and that of Maynas located on the other side
of the Maranon river should not be .included in the computation for
the elections of representatives to the next Congress," and
Mosquera expressed himself as satisfied (D. B. P., No. 2).
The Government of Peru could have answered that Maynas and
Quijos had belonged to the Viceroyalty of Lima from the time of
the Royal Decree of 1802; but, as explained by Valenzuela, that was
not done because of the ignorance of that decree on the part of the
Protector of Peru and his Minister, both of them being foreigners
and but recent arrivals in that country (D. M. P., vol. VII, p. 104).
However, it is evident that Mosquera made no formal demand
in that connection, contenting himself with a mere request for an
explanation, couched in the most courteous terms ; and he accepted
the explanation offered — that the population "on the other side of
the Marafion" were not to be computed in the apportionment of
the representatives to be elected. The incident goes to show: 1st,
that Colombia's representative did hot aspire, on behalf of his coun
try, to all oi the territory of Maynas that had belonged to the Audi
encia of Quito down to the time- of the Royal Decree of 1802, but
was satisfied with the section north of the Maranon, and, 2d, that
the Government of Peru, without, on the one hand, recognizing in
Colombia any rights whatever over that northern section, on the
other, committed itself only to the extent of abstaining from the
computation of the population of that section in apportioning the
congressional representation, proceeding at once with the compu
tation in the southern section of that territory, and thus securing to
Maynas a representation in the coming Congress, whatever may
have been the number of its inhabitants.

181
Colombia, then, recognized the rights of Peru with respect to
Maynas as far as the Maranon, and a discussion as to whether the
divisionary line was to be established at that river, or beyond, being
an invasion of the boundary question reserved by the treaty of
July 6th for settlement in a special convention, the Government
of Peru naturally did not wish to go into it at that time merely for
the purpose of determining the proportion between the number
of representatives and the number of persons represented in the ap
proaching congressional elections.
On the assembling of that Congress, however, the Government
sent in a report of the incident, as well as of that which took
place with reference to Jaen; whereupon, on the 23d of October,
1822, the Congress resolved "that all differences in the matter of
boundaries should be settled by the Congresses of the two States,
and that, in the meanwhile, all provinces over which there is any
dispute shall remain in the status occupied at the time of the victory
of Pichincha" (D. M. P., No. 3).
2) Colombia's Assent as to Jaen. — On the 22d of July, 1822,
General Sucre, as Intendent of the Department of Quito, orders
the Governor of Jaen to proclaim the Constitution of Colombia
throughout the province and cause it to be sworn to, giving
him, besides, instructions concerning the elections of deputies and
senators; but, on the 7th of August following, the General himself
writes to him that "having observed in the Gaceta of Lima that that
province is convoked to send deputies to the Congress of Peru," he
suspends his orders and calls on him for a report as to the situation,
so that all possible offence may be avoided which might disturb
the intimate relations existing between the two republics.
The Peruvian Minister of State, on the 14th of August and
17th of September, calls on the Secretary-General of the Liberator
of Colombia to prevent the continuance of the activities of the
Quito authorities in exacting the oath to the Colombian constitu
tion and seeking to intervene in the district of Jaen, "as that dis
trict belongs to the State of Peru in whose possession it now is."
On the 7th of October, 1822, General Sucre writes to the Presi
dent of the Department of Trujillo:
"It is true that I sent the Constitution of the Republic to the Gov
ernor of Jaen to the end that it should be sworn to in that jurisdic
tion, in view of the fact that Jaen is a province of Colombia, and
bearing in mind that the conditions under which it was> united to

182
Trujillo by the bondage of Quito ceased to exist after the 24th of
May. * * * I sent that communication to Jaen prompted by
my sense of duty, but the Liberator, having been disposed to sus
pend that action for the present, I so informed the Governor of
Jaen in order that he might stay proceedings pending final decision
of the matter."
He shared, then, in the error of believing that because Jaen had
been dependent on the Presidency of Quito under the previous
regime (referred to above as the regime of bondage in contra
distinction to that of freedom), when the province of Quito was
emancipated, it necessarily carried with it the province of Jaen,
and that in that wise Jaen became emancipated and voluntarily
attached to Peru before that state had achieved its liberty. Let us
see, however, how Sucre and Bolivar respected the rights of Jaen,
assenting to its independence with respect to Colombia, and refrain
ing from any opposition to its taking part in the elections, as it did,
to the first Peruvian Congress (D. M. P., 2 and 3).
§111. A Most Important Letter From
Bolivar in 1822. \
Bolivar's letter of August 3, 1822, to General Santander, who,
during the absence of the former, had remained at the head of the
Government in Colombia, is of the highest importance, in that it
makes clear the events of that period, confirms the following status
in respect to the territories in dispute, and enables one to understand
the course that had to be pursued in the negotiations between Co
lombia and Peru as well as the spirit of their treaties, including that
subsequently signed in 1829. In volume II of the Final Me
morial of Peru a photographic reproduction of that letter is inserted
and certified to by the Spanish Minister to Colombia, Sr. Arroyo.
i) Concerning the Annexation of Guayaquil. — The letter was
written at Guayaquil on the date of Bolivar's decree constituting that
province a part of the Maritime Department of the South, of the
Republic of Colombia.
Bolivar begins the letter by informing General Santander that
he is sending Captain Gomez to him with the treaty concluded with
Peru (July 6th), having given the Captain orders to acquaint him
fully with the situation as to Peru and Guayaquil.
"Gomez," he says, "bears with him the pleasing news that the
negotiations at Guayaquil have been carried through with accla
mation and in the most orderly manner possible. AH the partisans

183
of the independence idea and of Peru have taken, flight aboard
the Peruvian fleet. Olmedo was the last to go, and left with
me a letter. * * * All these gentlemen were treated with ad
mirable consideration; not a single vexation has transpired since
I have been here. Their departure taken, no inquiry has been made
into the motives of their flight ; nor has demand been made for their
property, or even for their families."
It would seem, therefore, that the adhesion of Guayaquil to Co
lombia was not unanimous. There were at Guayaquil partisans of
the plan of preserving its independence or of uniting at once with
Peru. The leaders among them, members of the governing junta,
had been menaced and forced to fly under threats against their per
sons, families and property, which threats, however, by reason of
their flight, had riot been carried into effect. The annexation was
not secure, as we are going to see.
"It is very necessary that I should remain in this country for
some time," adds Bolivar, "as much because of what is taking
place as because of my desire to await the results of Peru's next
campaign." He then speaks of Quito, referring to what General San Martin
had told him of the desire of the lawyers of that city to form a
state independent of Colombia, and adding, as to himself, that there
were ranged against bim the entire parties of the crown and ton
sure. He insisted upon the necessity of his sojourn in the south. ^
"Here," he says, "all is fresh and new. We are unknown except by
reputation, and, if the truth be told, it is a liberal conquest that we
have just achieved over this country; but in four days one cannot
conquer the hearts of the people — the only safe foundation of pow
er. I assure you, in all frankness, that in spite of the apparent
tranquillity prevailing in the south, this country may be Ukened
to Chimborazo, cold on the exterior yet blazing beneath. All the
power I possess is needed by us in order that our system may take
root in this country. You can well understand that there have been
many obstacles to overcome and that only the prestige of victory,
the use of force and the happening of momentous events could have
facilitated our triumph over such obstacles. Moreover, it is not
enough to conquer; it is necessary to hold. * * * At the center
of government I am not needed, because you and the Ministers
can carry it on better than I * * *; for the timebeing I am
useful here, and later, perhaps, I shall be in Venezuela."

184
The foregoing paragraphs with the words we have italicised
reveal Bolivar's uneasiness concerning the adherence of Guayaquil,
and even Quito, to Colombia (for there the Colombians were held to
be foreigners), also the manner in which they had imposed them
selves on the country, and the great lengths to which theyhad to
resort in order to consolidate the conquest.
Bolivar gives an account of the movements of his troops, writing
from Guayaquil that "the country is unsafe and its being garri
soned ought to be very favorable to us." He then- speaks of pro
jected tours through the country and of reforms in the annexed
provinces. 2) With Respect to Jaen, Maynas and Tumbes. — The letter
concludes with the following paragraph, which, . as stated in the
Peruvian Memorial, Peru ought to quote in letters of gold:
"Let it be understood by you," writes Bolivar to General San
tander, "that the Corregimiento of Iain has been occupied by the
Peruvians, and that Maynas belongs to Peru by virtue of a royal
order of very recent date; that it also is occupied by the forces of
Perut In any event, we shall have to abandon Iain for Maynas and;
if possible, advance 'our coastwise boundaries beyond Tumbes. I
shall inform myself of everything during the tour I am going to
make and will impart my views to the Government."
There appear in this paragraph first two statements of fact: the
occupation oi Jaen and Maynas by the Peruvians and the recognition
that Maynas belongs as of right to Peru, by virtue of a royal decree
of very recent date (alluding to the Royal Decree of 1802) ; and,
secondly, the revelation of a project to abandon Jaen for Maynas
and advance along the coast beyond Tumbes. All this from the
mouth of an unimpeachable witness, the one person of all others
capable of converting his projects, into reality;
Occupation of the Corregimiento of lain by Peru! — yes; but not
under title of conquest by the troops of General San Martin, but
because the inhabitants of Jaen had made themselves Peruvians,
voluntarily recognizing the new government and fighting for the
common country along with the other Peruvian provinces.
The two facts afterward invoked by Ecuador in justification of
the annexation of Guayaquil to Colombia — its voluntary acquies
cence and its emancipation by Colombian troops — were applicable
to Jaen also, not in favor of Colombia, however, but in f avOr of
Peru. In any event, the fact of Peru's being in possession of the

185
Corregimiento of Jaen when Bolivar wrote his letter is abundantly
proven by that testimony.
This possessory status was respected by the treaty of July 6th
which Bolivar forwarded to the Colombian government; and Boli
var himself confirmed it, forbidding General Sucre, as we have seen,
to proclaim the Colombian constitution in Jaen, and ordering him
not to prevent the election of the Peruvian deputies.
With respect to Maynas, the statement in Bolivar's letter that
"it is occupied by the forces of Peru," is coupled with the acknowl
edgment that Maynas "belongs to Peru by virtue of a royal order
of very recent date," which indicates, besides, that he had knowl
edge of the Rqyal Decree of 1802, a thing that has been denied, but
which it is important to keep in sight so that the spirit of the
treaties may be comprehended.
Why, notwithstanding this, did Mosquera oppose the inclusion of
the population north of the Maranon in the computation for the
apportionment of the Peruvian deputies ? Because he was preparing
the way to secure by compromise a part of Maynas, which Bolivar
knew, and it may well be believed Mosquera knew also, belonged
in its. entirety to Peru by virtue of that Royal Decree.
The designs oi Bolivar to accomplish by future negotiations the
extension of the Colombian boundaries is clearly revealed in that
letter ; to have them fun along the Tumbes coast and take in Maynas,
proposing to abandon Jaen to Peru, which union, born of the inti
macy of their traditional relations and- already authorized by the
King during the colonial regime, was made effective by the popular
will and by the war of independence. Bolivar believed that Peru, in
return for the peaceful possession of Jaen, a populous province so
intimately a part of her life, would submit to the cession of territories
more distant and but scantily populated, and in which at that time
her interests were not so important.
By this is explained the policy followed by Colombia in the nego
tiation of her treaties and conventions with Peru on the subject of
boundaries.

186
§IV. Galdeano - Mosquera Convention
of 1823 (not ratified).
i) The Proposals of the Plenipotentiaries. — On the 3d of De
cember, 1823, the Plenipotentiary of Colombia, D. Joaquin Mos
quera, addressed a note to the Peruvian Minister of State informing
him that three months had passed since he had returned to Lima
to settle the boundary question and that he was anxious to bring
it to a conclusion because he was desirous of attending the con
vening of the Senate to which he belonged. To that end he sub
mitted the following "Draft of a Convention between the Republics
of Peru and Colombia settling the demarcation of the boundaries
separating their respective territories. Both parties recognize,
as the boundaries of their respective territories, the same that were
possessed in the year 1809 by the Viceroyalties of Peru and New
Granada, from the disemboguement of the Tumbes river in the Pa
cific ocean to the territory of Brazil" (D. B. P., No. 4).
The Colombian Government, then, commences to put in practice
Bolivar's plan. Departing from the principle that each republic shall
respect the other's territories, that is to say, those belonging to
them or of which they are in possession, Colombia seeks to extend
the demarcation of boundaries advancing along the Tumbes coast
and reaching as far as Brazil, making no mention of Jaen.
It was well known at Guayaquil that Tumbes, with its district,
belonged to the province of Piura as far as the Machala, as we have
shown, and as could have been fully proven to Bolivar by D.
Joaquin Olmedo, the President of that government, by merely ex
hibiting his titles to the plantation of; Sarumilla, if the Colombian
annexationists had not forced him to leave the city. To fix on the
mouth of the Tumbes river as the point of departure for the divi
sionary line, was equivalent to taking for Colombia the area lying
between that river and the Machala, including the town of Tumbes
itself, which had always belonged to the Viceroyalty of Peru, and
to assuming, without so stating, the annexation of Guayaquil. The
fact that Guayaquil belonged to that Viceroyalty and the weakness
of the annexation constituted Bolivar's principal concern.
To propose Brazil as the common frontier of Colombia and Peru
on the east signified, also without so stating, an attempt to partition
the territory of Maynas between the two republics, ignoring the
Royal Decree of 1802, by virtue of which that territory belonged

187
in its entirety to Peru, as Bolivar had stated to the Colombian gov
ernment in his letter of 1822.
D. Jose Maria Galdeano, Plenipotentiary of Peru, replied to Mos
quera, accepting the first part of his proposal and objecting to the
second, which read "from the disembogument of the Tumbes river in
the Pacific ocean as far as the territory of Brazil," for, to fix the
boundaries concretely, there needed to be a more careful study of
the matter, and perhaps the appointment of a special commission, to
the end that no injury might result to either of the two republics (D.
B. P., No. 5).
2) Matters Agreed to by the Plenipotentiaries, and Legisla
tive Disapproval Thereof. — The amendment offered by Mosquera
accepted, both representatives signed at Lima, on the 18th of De
cember, 1823, the convention bearing their names, agreeing, in
order to avoid delay in the matter, as follows: "1st, both parties
recognize as boundaries of their respective territories the same that
were possessed in the year 1809 by the former Viceroyalties of
Peru and New Granada ; 2d, this convention shall be ratified by both
governments as soon as ratification may be had by their respective
legislatures." * * * (D. B. P., No. 6).
The convention, however, was not ratified. It was rejected by the
Congress of Colombia on the 10th of June, 1824, "in consideration
of the fact," it said, "that the object proposed by both republics has
not been fulfilled, and that further negotiations ought to be opened
by which the boundaries of their respective territories would be
settled definitely and with clearness and thoroughness," to the end
that this new negotiation may be facilitated and expedited (D. M.
P., vol. VII, p. 104).
On the 6th of July, the Colombian Minister, D. Pedro Gual,
brought to the knowledge of the Secretary-General of "His Ex
cellency, the Liberator, President of Colombia, entrusted with Dic
tatorial Power over Peru," the resolution of the Congress, in obedi
ence, he said, to the desire to avoid any cause of offense that
might interrupt the good harmony existing between the two repub
lics, and begging that a copy thereof be transmitted to the Charge
d'affaires of Colombia at Lima, D. Cristobal Armero, so that formal
notice of the resolution may be given to the Peruvian Minister of
State. This Armero did in due course, on the 7th of February,
1825, suggesting that along those lines, and at an opportune time,
a new convention might be negotiated which would fill up "the

188
voids" in the resolution and allay all apprehension of difficulties
by stipulating precisely and definitely as to the character and scope
of all conventions on the subject (D. M. P., No. 5). The Minister
himself, D. Pedro Gual, during the conferences at Guayaquil in
1829, subsequently stated that the former convention had been re
jected because of the possibility of vexations resulting from its
vagueness and because it provided no means for bringing the matter
to a conclusion (for example, by means of a commission or arbitra
tion). The Galdeano-Mosquera convention really had been hampererLby
those defects and Colombia was clever enough to put them forward,
for the purpose of standing well with Peru, covering up the real
cause of her disapproval of the convention, which was the omission
of the clause "from the disemboguement of the Tumbes river * * *
to the territory of Brazil."
The convention rejected, there remained in foree the treaty of
July 6, 1822, by which the territories of both republics were recog
nized and the demarcation of the exact boundaries reserved for
a special agreement, which now had been left for a more convenient
opportunity. There also remained in force, with respect to Peru, the resolution
of her Congress of October 23, 1822, whereby all the provinces in
dispute were to remain "in the status in which they were found at
the time of the victory of Pichincha."
§V. The Colombian Law of 1824 Con
cerning Territorial Division.
Fifteen days after the rejection of the Galdeano-Mosquera con
vention by the Colombian Congress, that is, on the 25th of June,
1824, the act relating to the territorial apportionment of the Republic
pf Colombia was approved, whereby it was divided into twelve
departments, each of which was subdivided into provinces, and the
provinces in turn into cantons.
Of the departments, three were Guayaquil, Ecuador and Azuay.
The Department of Guayaquil was divided info the two provinces
of Guayaquil and Manabi. The province of Guayaquil was sub
divided into six cantons. Tumbes is not mentioned among them.
The Department of Ecuador was divided into three provinces.
One of them was named Pichincha, capital Quito, subdivided into

189
five cantons, among which appeared those of Quito and Quijos.
Another province was named Chimborazo, capital Riobamba, which
was subdivided into six cantons, one being Macas.
The Department of Azuay was divided into three provinces —
Cuenca, Loja and Jaen de Bracamoros and Maynas. The province
of Jaen and Maynas, capital Jaen, was subdivided into three cantons,
called Jaen, Borja and Jeveros.
As a result of that division, the name of Quito, formerly given
to the Presidency and ? Audiencia of the colonial regime, the territory
of which, in the extensiveness it enjoyed in the XVIth century, the
Republic of Ecuador now seeks to recover, is restricted in Colombia
to a single canton in one of the provinces of a department of the
Republic of Bolivar.
We note also that the names of Jaen and Maynas are made to
figure in that division as forming a single province, and the names
of Quijos, Macas and Jeveros, as cantons parcelled out among dif
ferent provinces.
The Republic of Ecuador attaches much importance to that act,
but from an international point of view, it is wholly unimportant.
It was a. law of the internal administrative system, and, even in this
aspect, purely nominal, since Ecuador neither administered nor oc
cupied even the province of Jaen or those territories of the ancient
Comandancia general of Maynas.
What significance could such a law have in view of the status of
the relations between Colombia and Peru? It cah only be con
sidered as an act of prevision to meet the contingency of the
ratification of the boundary convention in the form proposed by
Mosquera, or as an act of preparation for a new convention.
In any event, with respect to Maynas, it did not disclose the
intention to claim, in its entirety, the territory rightfully be
longing to the ancient Audiencia of Quito prior to the Royal Decree
of Charles IV, but only portions thereof corresponding to those
cantons, for it is not supposable that they were to be extended from
the cordillera of the Andes to the Brazilian frontier. Mosquera,
in his note in regard to the election of deputies referred to the sec
tion north of the Marafion and in his draft of a convention he con
tented himself with suggesting the idea of a partition — all this not
withstanding Bolivar's acknowledgment that the province of May
nas belonged to Peru and was occupied by her troops, and, with
Tegard to Jaen, the plan suggested by Bolivar in his letter is clearly

190
revealed to threaten Peru as to Jaen in order to secure as much of
Maynas as he could.
Colombia was bound to Peru by the treaty of 1822, maintain
ing the status quo until a special convention ' could be -negotiated
for the exact determination of boundaries. The Colombian Congress
rejected the' Galdeano-Mosquera draft, because it did not definitely
fix those boundaries, and sought to obviate all causes of conflict
with Peru. The Peruvian Government had no reason to concern it
self with the Colombian act of territorial division, being confident
that nothing of a practical nature would be done without its consent,
and awaited the final decision of the Colombian Government concern
ing the pending convention, of which decision Peru was not notified
until the 7th of February, 1825, when it was conveyed, with many
protestations of most intimate friendship and an expression of the
desire to enter into a further convention at an opportune time.
§VI. Bolivar's Policy in Peru; His Ac
tion With Respect to Those Matters.
We have just related how Bolivar, in his letter written at Guaya
quil on the 3d of August, 1822, recognized the rights of Peru with
respect to Maynas and expressed the wish that Jaen should be left
to. the Peruvians, resorting to the proffer, however, as a means of
obtaining advantages through a friendly compromise — but believing,
furthermore, that it was within the right of the Peruvians to re
tain that province, we may assume, although he does not go so
far as to say so, because of his belief that the will of the towns to
unite themselves one with the other preserved the boundaries of
the ancient divisions, that being his Understanding with respect to
Venezuela and New Granada, as is shown by the instructions he
gave to the negotiator of the treaties of alliance in order that the
rights created by the revolution might prevail.
We have seen also how he ordered General Sucre, as the latter
divulged on the 7th of October, 1822, to suspend the proclamation
of the Colombian constitution in Jaen and to permit that province to
participate in the elections for the first Peruvian Congress.
So, then, Bolivar, as supreme executive and Dictator of Peru,
governed Jaen as a Peruvian province.
This is evidenced by the following official communication from
the Secretary of State, D. Jose Espinar, dated December 16, 1823,

191
and addressed to Colonel D. Mariano Castro, in which the Secre
tary transmits the latter's appointment as Intendent and prescribes
his powers:
"His Excellency, the Liberator, considering the necessity of plac
ing the administration of the provinces of Peru'm the hands of a per
son of sufficient capacity, activity, zeal and patriotism, and all these
qualities concurring in your Lordship, His Excellency has seen
fit to appoint your Lordship Intendent of the province of Cajamar
ca, with command over the provinces of Iain, Chota, Chachapoyas
and Moyobamba (part of Maynas). — His Excellency, the Liberator,
in conferring this office on your Lordship, not only gives you the
authority pertaining- thereto, but he further delegates to you a part
of the extraordinary power reposed in him by the Sovereign
Congress of Peru. By virtue of those powers, your Lord
ship is fully and completely empowered to intervene in the
affairs of the treasury and to make such alterations in the revenues
of the State as may be of absolute and urgent necessity, to collect
the taxes fixed by the former government, and to augment them in
proportion to the needs of the troops under your command. — Your
Lordship will co-operate directly with the Prefect of the Department,
giving him a share in the political and internal affairs of the prov
inces within your Lordship's jurisdiction, and you will report to
His Excellency, the Liberator, all military occurrences and others
that may be of any importance." (M. P., vol. II, p. 26.)
There is in the conduct of Bolivar, however, something more
significant than in all the concrete facts that one could cite, and
that is, that it having been within his power to deliver Jaen and
Maynas over to Colombia during his sojourn in Peru, he did not do
it, notwithstanding the all-embracing dictatorship he enjoyed from
1823 to 1826, and he had reached the extreme pinnacle of power, for
he could suspend the constitution and the laws and issue decrees
having the force of legislative enactments. Was it because he was
convinced of Peru's rights, or because he was loath to offend the
republic that had conferred on him the dictatorship and proclaimed
him Father and Savior? However that may be, the fact remains
that he preserved to Peru the provinces of Jaen and Maynas. In
that his action differed from his treatment of the provinces of
Upper Peru, for he gained her recognition of them as a single inde
pendent State, under the name of Bolivia, in 1825..
Bolivar being still in Peru, attendant on the convocation of
the new Congress, to assemble in 1826, the diplomatic agent
of Colombia oresented two notes, one on the 27th of February, and

192
the other on the 7th of March, referring to the elections in the
province of Jaen and part of the province of Maynas, and
the Peruvian Minister of Foreign Relations replied, restricting his
answer to the assurance that he would bring the agent's claims to
the attention of the future Congress for proper action (D. M. P.,
No. 6).
After Bolivar's departure, the Colombian agent, assuming a dif
ferent attitude, revived his former claim, in a note dated December
2, 1826, adding his protest against the appointment of the Bishop
of Maynas, which he held to be an act of aggression against the
sovereignty of his government (D. B. P., No. 8).
We may safely say, in resume, that the relations between Colom
bia and Peru were of the utmost cordiality from the birth of the
two States until Bolivar's departure from Peru; the latter republic
retained her provinces of Jaen and Maynas and no claim thereto
was set up by Colombia.
§VII. Bolivian Constitution of 1826 and
Its Nullification in 1827.
As soon as Bolivar had assured the independence of Peru and
had been confirmed in the dictatorship, he passed with General
Sucre over into the provinces of upper Peru to form a new state in
that region, an undertaking in which he was successful.
The Congress of Chuquisaca, composed of representatives from
those provinces, proclaimed their independence on the 6th of August,
1825, adopting for them the name of the Republic of Bolivia, and
later ratified a constitution drawn up by Bolivar and conferred on
that General the presidency for life, which, however, he accepted
for two. years only.
Enamored of his constitution, upon which he looked as an almost
perfect work, Bolivar desired that it should be adopted in Peru.
The Peruvian Minister of the Interior and Foreign Relations;
Pando, on the 1st of June, 1826, addressed a circular recommending
ii to the electoral colleges, convoked for the purpose of determining
whether the assembling of the Congress had better be suspended
and to consider the reforming of the constitution.
The electors of the college of Lima, assembling on the 16th of
August, approved the Bolivian constitution and appointed a com
mission to advise Bolivar of its action and offer him the

193
Presidency for life. According to Cevallos, in his History of Ecu
ador, Bolivar made the following reply to the electors : "That con
stitution is the work of the centuries, for in it I have assembled all
tbe lessons taught by experience and the counsels ahd wisdom of the
sages. * * * Peru counts among her sons men eminent and
capable of discharging the duties of the supreme magistracy. To
them you must turn, and not to me, to fill that office. * * *
Myself I owe to Colombia ; and, if she permits me, I shall still con
sult my conscience as to the sanction with which you have
loaded me with honor, for I am constrained to serve Peru in all that
may depend on me, myself." After its ratification by the electoral
college of Lima, the ratification of the colleges in the other provinces
followed, to the number of fifty-eight, with the single exception of
that of Tarapaca, which remained silent.
Believing his work of organization in Peru to be ended, and as it
was necessary that he should return to Colombia where his presence
was being demanded with great eagerness, Bolivar set out on his
return on the 3d of September.
He committed the Government of Peru to the charge of a
council, presided over by General Santa Cruz, and left behind
for greater security three divisions of Colombian troops. The
Council of Government, by decree of November 30, 1826, ratified
the Bolivian constitution and ordered that it be sworn to.
It was, however, a most incongruous constitution. Bolivar, had
sought to pattern it after the constitution of the United States, the
model usually followed in republican constitutions, and had searched
among the European types for counterpoises in government which
for a long time had been thought to be essential in South America.
The result was a code both complicated and impracticable, based, as
it was, on a presidency holding power for life and three chambers —
of tribunes, senators and censors. And, as is said by Cevallos, the
great admirer of Bolivar, "a president for life, responsible to no
ne, with the right to name his successor and propose a Candida tr.
for vice president * * * must have been looked upon wiih
great distrust by the body ofthe people, who might well ! ••
feared the apparition of a Cromwell, clearing the way fh.)i *
Iturbide to the tin one."
Those who distrusted the intentions of Bolivar, the oppoi.-nt'- -. ,
that union of republic* under one head, and (.hose who had hn:
ings in tbnt direction, commenced to oppose the Liberator,

194
The discontent in Peru soon became manifest. On the 28th of
December, 1827, the government issued a decree providing "that,
whereas doubts had arisen as to the legality of the Bolivian consti
tution, an extraordinary congress should be assembled to determine
what constitution should be in force. The constituent congress hav
ing assembled on the 11th of June, declared the Bolivian constitution
null and void, and ordered the provisional observance of the
constitution of 1823. On the 21st of March, 1828, a new consti
tution was proclaimed.
The acts committed by the Colombian troops left by Bolivar on
his departure from Peru, and the abovementioned opposition on
the part of the Peruvians to his constitution and policies, brought
about a severance of relations between Peru and Colombia, which
were re-established by the treaty of 1829.
But, before entering upon a study of that treaty and the events
preceding it, let us note the status assumed by the boundary ques
tion as a result of what has been set forth.
§yill. Resume of the Boundary Ques
tion Down to 1827.
i) The Question in General.— We may summarize the question
of boundaries according to the relations between Peru and Co
lombia down to 1827 in the following points :
1st. The treaty of amity and alliance signed July 6, 1822,
(Mosquera-Monteagudo) — the only one subsisting between Colom
bia and Peru with binding force of ratification by both congresses —
maintained the status quo as to territorial possession and boundaries
existing at the time of the mutual recognition and agreement of
those two countries as independent states, leaving for a special
convention "the demarcation of the exact boundaries."
2d. On the signing of that treaty, the annexation of Guayaquil
to Colombia had not even been ratified, while Tumbes, Maynas and
Jaen were integral parts of the State of Peru ; Tumbes and Maynas
as provinces still belonging to the Viceroyalty of Lima, and Jaen,
aside from its colonial ties, by its voluntary incorporation in 1821.
3d. Bolivar, in his letter of August 3, 1822, to General Santander,
who acted as his substitute in the chief executive office of
Colombia, declared that tbe annexation of Guayaquil to Colombta
was not assured; that Peru occupied Jaen and Maynas, the latter

195
belonging to her by a recent measure, and that it would be neces
sary to leave Jaen to Peru for Maynas, and advance along the
coast as far as possible beyond Tumbes.
4th. Those aspirations on the part of Bolivar were interpreted
m the proposal made by General D. Joaquin Mosquera, Plenipo
tentiary of Colombia, in the attempt of December, 1823, to settle the
boundaries on the basis of a recognition, as the boundaries of the
respective territories, of the same that were held in 1809 by the
Viceroyalties of Peru and New Granada, that is, from the disem-
boguement of the Tumbes river in the Pacific to the territory belong
ing to Brazil. Because of the Peruvian Plenipotentiary's refusal to
accept the second part of that proposal, the convention was signed
without including it; but, as a result of the omission, it was rejected
by the Colombian Congress on the pretext that it was thereby ren
dered obscure.
5th. The instructions given Mosquera by the Colombian govern
ment for the negotiation of the treaty of July, 1822, contained tlie
true principle upon which to settle the question definitively — that is,
the acceptance of the colonial demarcations insofar as they may not
have been modified by the right of the emancipated towns freely
to constitute themselves. On that principle Colombia occupied
a legitimate status, formed, as she was, by the union of the Vice-
royalty of New Granada and the Captaincy-General of Venezuela,
and on that principle Colombia could retain Guayaquil, leaving to
Peru, in their integrity, Tumbes, Maynas and Jaen. But she
exposed herself to the loss of Guayaquil, which desired either to be
independent or to be united with Peru, and she would have had to
renounce her aspirations to enlarge herself by the acquisition of
Maynas and Tumbes. Following this course of reasoning, Colom
bia resorted to compromise, proposing a line which, beginning at
Tumbes and ending at Brazil, would give her parts of those prov
inces and leave Guayaquil in her posssession, yet without making
mention of that province.
6th. As the special convention for the exact demarcation of the
boundaries to which the treaty of July, 1822, referred was not nego
tiated, that treaty only remained effective as recognizing each state
in the possession of its territory, considered in connection with the
declaration of the Peruvian Congress of October 23d of the §ame
year that all the provinces in dispute should remain "in the status
they occupied at the time of the victory of Pichincha."

196
7th. Colombia made no claim whatever for the ''restitution" of
the provinces in question. On the contrary, she respected the
government exercised over them by the State of Peru, at the head
of which Bolivar himself was established, invested with dictatorial
powers. 2) The Question in Its Relation to Jaen. — The towns of the
province of Jaen which, having declared their independence, recog
nized ard took the oath of allegiance to the Government of Peru in
1821, were convoked in 1822 for the elections to the constituent
Congress of Peru; and, although Sucre at once sought to prevent
their participation in those elections, trying on the other hand to
bring about the , swearing of the Colombian constitution, the elec
tions not only took place by order of Bolivar, but the Colombian
constitution was not sworn to. The inhabitants of Jaen were, there
fore, represented in the Congress instituted by him in Peru, and
which ratified the treaty with Colombia, and Jaen continued to be
represented in all the subsequent congresses.
The national flag of Peru waved over Jaen from the moment of
its adoption by the State (D. M. P., No. 160), and inhabitants of
Jaen formed a part of the Peruvian army, contributing by its forces
and its resources to the common defence of the country during the
war of independence from beginning to end.
Bolivar governed Jaen as a Peruvian province, appointing its
functionaries and delegating to some of them his own discretion
ary powers (M. P., vol. II, p. 26).
It may safely be said that Colombia gave no more thought to
Jaen than as a means of obtaining, by its express renunciation, a
compromise favorable to her aforementioned aspirations.
3) The Question in Its Relation to Maynas. — In his letter
of 1822, above referred to, Bolivar recognized Maynas as belonging
to and occupied by Peru. That occupation was not merely military
in character, but the continuation of Peru's possession of those ter
ritories she was continuing to govern and administer as in the era
of the Viceroyalty, by and with the consent of their inhabitants who
had concurred in bringing about the independence. From the
time when Bishop Rangel withdrew to Spain, in 1821, the See of
Maynas had been confided to the ecclesiastical governors appointed
by the Archbishop of Lima. Moreover, the Government of Peru
appointed the governors of the District of Maynas, which belonged
to the Department of Trujillo.

197
When the inhabitants of Maynas were convoked in 1822 and 1826
for the elections to the Peruvian Congress, Colombia demanded an
explanation. One was given by the Government of Peru, but without
abdicating its rights ; then, as on all subsequent occasions, the elec
tions were held (D. M. P., No. 136).
Colombia did not lay claim to the province of Maynas, although
she did seek to obtain a part of it, for Mosquera proposed, in nego
tiating the convention of 1823, that the divisionary line should
reach as far as Brazil; though Colombia herself declined to confirm
that proposal. '
4) The Question in Its Relation to Tumbes. — In the negotia
tions attending said convention, MosqUera also proposed that the
divisionary line should begin at the mouth of the Tumbes river,
as much for the purpose of realizing Bolivar's plan to extend Co
lombia along the Pacific coast, as to leave the Gobierno of Guayaquil
embraced within the republic without having to concern himself
with the colonial uti possidetis or the right of the emancipated
towns to constitute themselves or to incorporate freely with another
state. But, in that also Mosquera was obliged to desist.
Tumbes continued to remain a part of Piura under the Govern
ment of Peru. It is of record that on the 30th of March, 1826, the
personnel of the municipality of Tumbes was replaced in accord
ance with the Peruvian constitution; that Tumbes, in December,
1827, belonged to the department then called La Libertad, and that
it was included in the register of tributaries of the District of Piura
for 1828 (D. M. P., Nos. 203, 204 and 205).
In the minutes of the session of March 30, 1826, above men
tioned, are set forth the appointments made by the municipality of
the judges for Los Corrales, Oidor, Cabuyal and Saru
milla, places to which we have referred in treating of the colonial
epoch, and which, as may be seen, continued to belong to the juris
diction of Tumbes.

CHAPTER III.
Treaty of Guayaquil of 1829.
(Historical Premises and Composition.)

Summary:

I. Historical premises of the treaty of 1829.— 1. Events of 1827 alter
ing the relations between Colombia and Peru. — 2. The mis
sion of the Plenipotentiary Villa (1828).— 3. The war of 1828-
1829; its true causes. — 4. Efforts toward peace; Ofia bases for
peace negotiations. — 5. Preliminary peace convention of Giron. —
6. Continuation of the war; armistice of Piura.
II. Composition of the treaty of 1829. — 1. Guayaquil conferences (Gual-
Larrea) ; observations thereon. — 2. Official communication of the
Peruvian Plenipotentiary to his government. — 3. Exchange of
ratificaTTons without previous approval of the Colombian Con
gress.
§1. Historical Precedents of the Treaty
of 1829.
i) Events of 1827 Altering the Relations Between Colom
bia and Peru. — When Bolivar arrived at Bogota on his return from
Peru, he found the republic much disturbed by the dissensions be
tween the Venezuelans and Granadans, by the strife existing among
the parties, by the rebellion of certain leaders and the defection of
former friends seeking to rival, or fearful of, his personal power.
To check the disintegration that threatened to destroy the republic
he had founded, and, even at the risk of confirming the suspicion of
excessive ambition on his part, he issued a decree on the 23d of No
vember, 1826, reinvesting himself with the extraordinary powers of
which he had been deprived in his absence, and forthwith set out to
pacify Venezuela. He succeeded in re-establishing order in all
parts, and was able to say, on the 3rd of January, 1827, after pardon
ing the rebels and those who had been disloyal to his person, "Let
us cast into the abyss of time the year 1826 * * * ; what has oc
curred has passed from my mind."
But the germ of distrust with respect to his projects remained,
and was encouraged by the manifestations of his desire to impose on
Colombia the- constitution in force in Bolivia and Peru, and from

199
those two republics spread the movement, begun and supported by
the Colombian troops he left behind on his departure, that developed
into further disorder in Colombia.
On the 26th of January, 1827, the very month in which Bolivar
brought to an end his work of pacification in Colombia, the Colom*
bian contingent in Lima, with its leader, Col. Bustamente, rose in
revolt, declaring that they would not consent to a dictator in their
country, or to the adoption of a constitution with which they were
not familiar. Whether or not that uprising was provoked by the
Government of Peru, certain it is that the Peruvians were discon
tented with the Bolivian constitution, and that that government, two
days afterwards, issued the decree casting doubt on its legality and
convoking an extraordinary congress for the purpose of deciding
which constitution should be enforced. Valenzuela says that Gen
eral Santander, Vice-President of Colombia, applauded the conduct
of the Peruvian Government, as did the enemies of Bolivar, and
went so far as officially to palliate the mutiny.
The Peruvian Government sent the mutinous troops back to Co
lombia, where they disseminated discord throughout the southern
departments of that republic.
The constituent Congress assembled at Lima, and, by the act of
June 11, 1827, declared null and void the Bolivian constitution and
provisionally put in force the constitution of 1823.
General La Mar being named President, established two army
corps, one at Puno, on the Bolivian frontier, and the other in Piura,
near the frontier of Colombia.
Valenzuela states that General La Mar, availing himself of the
presence of General Gamarra in Puno, provoked the insurrection of
the Bolivian division of Colombian troops at La Paz on the 25th
of December, 1827. In any event, the truth is that that Other
division left by Bolivar also rose in revolt against the government
he had established.
As a result of those events, the good relations which until then
had existed between Peru and Colombia were disrupted; the press
of the two countries published criticisms and recriminations display
ing much bitterness.
It was in the midst of such a situation that Peru sent D. Jose Villa
to Colombia as Minister Plenipotentiary.
2) The Mission of the Peruvian Plenipotentiary, Villa (1828).
—The Plenipotentiary Villa arrived at Bogota on the 11th of Feb-

200
ruary, 1828. He went with the object, as he said, of presenting to
the Colombian Government the explanations demanded by tha.t gov
ernment concerning the expulsion of her diplomatic agent at
Lima, Armero; but Bolivar, to show his resentment against Peru,
and Villa himself being persona non grata, declined to receive him,
commissioning his Minister, Revenga, to confer with the Plenipo
tentiary in his stead and to set forth the claims of Colombia. Re
venga addressed to Villa a preliminary note, in which he asked the
latter whether he was disposed to answer "all the charges" that he
was prepared to make. To that Villa replied that his answer could
cover only the points as to which he was authorized to treat.
Colombia's purpose to humiliate the representative of Peru, or to
break off negotiations with him, now became apparent, and it was
confirmed by the note of the 3rd of March, wherein Revenga for
mulated all the charges to which he had recourse, couching them in
terms most offensive and provocative.
"It is extremely regrettable," he wrote, "that Sefior Villa does not
come clothed with authority to restore the province of Jaen and part
of the province of Maynas, provinces unquestionably Colombian
and for a long time the subject of our claims, and to liquidate and
settle the account for supplies furnished to Peru." He speaks of
the sacred character of those obligations and adds, "as to Jaen and
Maynas, whether bearing in mind the principle that has invariably
guided all the American states, to refrain from encroaching on the
limits possessed by the great divisions of our continent as colonies,
or whether remembering the endeavors to which those provinces
really owe their independence, it is clear that the attempt to retain
them as Peruvian territory must be characterized as usurpation."
This is the first time in Colombia's diplomatic relations with Peru
that the word "usurpation" is used, and now we see the nature of
those relations as we have seen their antecedents: as when Bolivar
had recognized the rights of Peru over the entire territory of
Maynas, and had governed Jaen as a Peruvian province. But the
most interesting is the statement that the two principles that must
be borne in mind in discussing the question of boundaries, are the
principle involved in the ancient colonial divisions, and that relating
to the manner in which they made themselves independent, for both
principles favored Peru, Colombia not being in a position to attribute
to herself the emancipation of Jaen and Maynas, unless on the basis
of the assistance given the State of Peru as a whole for the achieve-

201
ment of its independence, in which case she could lay claim to the
whole Peruvian republic.
To those charges the Plenipotentiary replied in their proper order,
and also to other charges brought to his attention, Peru having been
allowed a maximum term of six months within which to settle the
matter definitively. That period expiring without any settlement hav
ing been reached, the Colombian Minister wrote: "The Govern
ment of Colombia will believe, not only that Peru antagonizes her
with deliberate intention, but also that Peru has left the decision
of the rights of the matter to the fortune of war" (M. P., vol. II, pp.
52 et seq.).
Villa was dismissed on the pretext that his credentials were not
sufficient. 3) The War of 1828-1829; Its True Causes.— While those
events were transpiring in Bogota, the rebellion against Bolivar
continued to spread throughout the Departments of Guayaquil, Loja
and Cuenca, which responded to the excitement created by the Co
lombian troops sent back from Lima, and which, perhaps, believed
that they could count on the support of General La Mar to bring
about their independence or their union with Peru. Cevallos, the
Ecuadorian historian, states that on the 21st of February, 1828,
Captain Orellana, in command of a Peruvian detachment stationed
on the frontier, passed the line of the Macara and occupied the town
of Zapotillo, belonging to the province of Loja, and raised the flag
of his country. Restrepo, the Columbian historian, records that
Flores, General in command of the army- of Colombia in the south,
issued a proclamation on the 18th of April, announcing that the
Liberator would proceed to Peru to punish that nation for its per
fidy. That proclamation, he adds, as imprudent as it was impolitic,
was held at Lima to be a declaration of war.
Either as a result of the proclamation or because of the events
at Bogota, the Peruvian Congress, on the 20th of May, passed an
act in which the army and "fleet were ordered to prepare for war,
President La Mar being authorized to command the troops in person
and make proper disposition of the national militia.
Such was the condition of affairs, says Valenzuela. Bolivar knew
of the events transpiring in Bolivia, the work of Peru's armed inter
vention, which forced Sucre to leave that country and renounce the
presidency. The Liberator was indignant. On the 3rd of July he
put forth a fiery proclamation containing expressions of unusual

202
violence against the Peruvian Government, and so excited the in
habitants in the southern part of Colombia that they flew to arms
and rushed to the frontier to await his arrival, which was to be the
signal for hostilities.
Shortly afterwards, on the 20th of July, the Colombian Govern
ment made public the declaration of war it was about to engage in
with Peru and set forth its principal grievances. These were:
injuries received from Peru in return for services rendered; che
incitement of the division of Colombian troops at Lima to mutiny;
the despatching of those troops of Colombia, using them as the
means of taking possession of the three southern departments (al
luding to Loja, Cuenca and Guayaquil) ; the dismissal of the diplo
matic agent, Armero; the sending of the Plenipotentiary Villa, for
the purpose of gaining time, unaccompanied by instructions to
arrange the settlement of the indebtedness and "to negotiate for
the restoration of the province of Jaen and part of Maynas, which
Peru holds by usurpation;" the seduction of the Colombian troops
that rebelled at La Paz on the 25th of December; the crossing of
the frontier by a detachment that raised the Peruvian flag on Co
lombian territory; the preparations for war going on in the army
and fleet, and the recent armed intervention in Bolivia (D. M. P.,
No. 8).
Jaen and Maynas are mentioned only in the clause that appears
as an incident setting forth the complaint that Peru had sent her
plenipotentiary lacking in powers sufficient to "treat" ; and, so far
was the matter of those provinces from being the principal motive
for the war, that fhe historian Restrepo, who had been Bolivar's
Minister, does not give it a place in his resume of the grievances
set forth in that declaration of war.
The true motive for the war on the part of Bolivar is divulged
by that writer and statesman when he says that "the Liberator,
deeply wounded in his honor and in- his personal sensitiveness by
the men of the party then holding in its hands the reins of govern
ment in Peru, desired the war as a means of exacting, by his
triumphs, a brilliant satisfaction and humiliation of that republic."
We must confess, he adds, that he was not wholly unjustified in this,
for the party that had possessed itself of the government of Peru
had not been content with casting out his constitution and taking
from him the presidency for life, but had organized the revolution
against him in Bolivia, and even in Colombia, and had publicly in
sulted him,

203
Let us add to the motives for Bolivar's personal resentment the
disillusionment as to his scheme of a confederation of South Ameri
can republics, together with his fear of the dissolution of his own
republic of Colombia; and, on the part of Peru, lay the desire to
govern herself, with no presidents for life and no dependencies on
foreign governments.
General La Mar replied in terms both violent and offensive, jus
tifying his acts, and forthwith entered upon the campaign.
In tne war Bolivar at once met with two serious obstacles. The
first was the defection of Colonels Obando and Lopez on the 12th
of October, 1828, who, with the Colombian troops under their com
mand, rose in revolt against the Liberator's government and de
feated General Mosquera on the 12th of November, taking posses
sion of Popayan and co-operating in the movement started by the
entry of the Peruvian army. The second was the capitulation of
Guayaquil, January 19, 1829, to the Peruvian fleet, which had be
sieged the city since the previous November.
After a campaign of thirty days, General Sucre, at the head of
the Colombian army, gained a victory over the troops of Peru at
the battle of Tarqui on the 27th of February, 1829.
4) Efforts Towards Peace ; Ofla Bases for Peace Negotiations.
— Before entering on his campaign, General Sucre wrote to General
La Mar on the 28th of January, 1829, proposing peace, in obedience
to the first impulse of his heart and in forgetfulness of his personal
grievances, to the end that bloodshed might be avoided between
sister peoples. La Mar replied that he was not opposed to a com
promise, although he took occasion to state the reasons that actuated
Peru in penetrating Colombian territory and liberating the towns
"wearied from suffering an insupportable yoke from which Guaya
quil is now free." Sucre then transmitted from Ona, on the 3rd
of February, the "bases for negotiation of peace." The principal
bases were: the reduction of the military forces of Peru and Co
lombia ; the settlement, by means of commissioners, of the question
of boundaries, and payment of indebtedness ; mutual satisfaction to
be given by fhe governments for what had occurred; refraining
from interference in Bolivia, and the immediate abandonment of
Colombian territory by Peruvian troops (D. M. P., No. 10).
Guayaquil was in the power of Peru, the province of Loja, as
Restrepo declares, was occupied by her troops, and General La" Mar
believed his triumph secure, counting, as he did, on the support to
be met with on the part of the towns. To be forced to retire with

204
the army, as an indispensable prerequisite to the signing of a treaty
of peace, he held to be a humiliation and declined to subscribe to
the conditions proposed. In returning then), says Cevallos, he pro
posed, among other things, that "the department of Guayaquil should
return to the status it occupied in 1822 before its incorporation
in Colombia."
It should be noted that, in that tentative toward peace essayed
by Colombia, no claim was' put forth to Jaen or Maynas, reference
being made only to the settlement of the question of boundaries ;
that Sucre did not refer to those provinces when he exacted the
abandonment of Colombian territory occupied by Peruvian troops,
and that the real crux of the difficulty was Guayaquil, Colombia
claiming recovery thereof on the retirement of the Peruvian troops,
while Peru hoped that Guayaquil might regain the independence it
enjoyed prior to the annexation.
5) Preliminary Peace Convention of Gir6n. — The Peruvian
troops having been defeated at the battle of Tarqui, on the following
day, February 28, 1329, the preliminary convention of peace was
signed, at the instance of General Sucre, on the field of Giron, and
was known by that name. The convention was a reproduction of
the Ofia bases, with certain modifications and additions. Both par
ties binding themselves to the stipulations therein, it became the
forced basis for the definitive treaty of peace that was to be entered
into later.
In the ninth article of the convention it was stipulated that : "As
Colombia will not consent to the signing of a treaty of peace while
troops of the enemy occupy her territory, it is agreed that, these
bases settled, the rest of the Peruvian army shall retire south of
the Macara * * *," and, in the 11th article: "The Peruvian
army shall begin its retirement from Loja on the 2nd day of March
next and will completely evacuate the territory of Colombia within
twenty days, counted from that date. Within the same period tbe
city of Guayaquil will be restored to the proper authorities. * * *"
Nor was anything stipulated in that convention as to Jaen or
Maynas ; it limited itself to the statement that a commission would be
appointed for the settlement of the question of boundaries, as we
shall soon explain when we take up the definitive treaty, which com
mission was to be charged also with the liquidation of the indebted
ness arising out of the war of independence.
If Colombia had in mind that Peru "had usurped or unwarrant-

205
ably held the province of Jaen and part of Maynas," why, being the
victor, did she not demand their restitution, as she had exacted in
the case of Guayaquil and in the case of the abandonment of Loja ?
Having recovered Guayaquil and arranged that the Peruvians
should retire to the southern bank of the Mac ard, Colombia con
sidered herself completely restored to the possession of her territory.
To refrain at such a time from claiming as her own the provinces
of Jaen and Maynas, was tantamount to a recognition at least of
possessory status in favor of Peru, leaving the matter reduced to a
question of boundaries.
6) Continuation of the War ; the Armistice of Piura.— On the
9th of March, 1829, the day following Bolivar's entry into Pasto,
after suppressing the rebellion started by Lopez and Obando, he
received with great satisfaction the news of the victory of Tarqui
and the signing of the preliminary peace convention, and left at
once for Quito to set in motion the negotiation of the definitive
treaty. But his satisfaction was of short duration, for Peru declined to
carry out the convention of Giron, the Peruvian leaders refusing
to turn over Guayaquil ; La Mar alleged that the decree granting
honors, conceded by Sucre as a result of the victory, amounted
to a new offence, and the government denied the validity of the con
vention because of the absence of congressional ratification.
The campaign, known at this period as that of Buijo, was there
upon resumed. The operations, says Cevallos, were of small import
ance, as they were reduced to the general dislodgment of the Peru
vians from Babahoyo, Baba, Daule, Samborondon and Yahuachi.
But the city of Guayaquil remained in the power of Peru and the
sea littoral continued under the control of her ships. On the 11th
of March the commanders of the garrison and of the fleet deter
mined not to comply with the convention (D. M. P., No. 12), and
Guayaquil's resistance created a serious danger to Colombia. Gen
eral Flores, who had succeeded General Sucre in command, wrote
to Bolivar on the 25th of that month : "If the remainder of the
Peruvian army should embark at Payta and march on Guayaquil,
they could do us much harm in view of present conditions, for if,
after penetrating Daule, they should attack us with superior forces,
we should find ourselves obliged to resist the attack without being
able to maneuver on the flanks or undertake a retrograde move
ment." And, in another letter, of the 31st, also addressed to the

206
Liberator, he added: "The sentiment in Guayaquil and in all its
towns is bad, the worst * * *; all — all with the exception of
four families, are enemies of Colombia and wish to be independent
* * *" (D. M. P., No. 16).
From the foregoing may be understood the eagerness with which
Bolivar sought to bring the war to a close and secure possession
qf Guayaquil, the annexation to Colombia which he had accom
plished not having been in accord, as may be seen, with the senti
ments of its inhabitants.
Peru had reinforced the garrison at Guayaquil, and it did not
seem possible to take that stronghold and bring the war to an end.
"However," says Restrepo, "it suddenly happened that the roadway
to peace was smoothed as a result of disturbances that had for some
time been brewing in Peru." Further along, Cevallos says: 'An
event altogether foreign, but of the greatest importance, occurred
to give another turn to the conflict, and put an end to this second
campaign." On the 5th of June, 1829, General Lafuente, who commanded
the troops quartered in Lima, seized upon the government of P^ru,
and, four days later, General Gamarra rose in rebellion in Piura,
capturing La Mar and at once sending him into exile. The rebels
had taken advantage of the feeling of dissatisfaction with La Mnr
resulting from his defeat at Tarqui and had deprived him of
power, naming Gamarra President, and Lafuente Vice-President,
of the republic.
These facts are cited by the historians of Colombia and Ecuador,
who confess that that was the way in which the war was brought
to a close.
Bolivar sought to avail himself of those circumstances in order
lo secure from its new government, first, an armistice, and, later, the
ratification of a definitive treaty of peace on tbe bases of the Giron
convention. By tbe armistice signed at General Pleadquarters in Piura July
10, 1829, the suspension of hostilities on sea and land for a period
of seventy days was agreed on to enable both governments to
arrive at an understanding, but the Government of Peru bound
itself to the immediate delivery to the Government of Colombia
(within six days from the ratification of the armistice) of the De
partment of Guayaquil and its fortified city (D. M. P., No. 21).
Guayaquil was, in effect, turned over on the 20th of the same

207
month, a truly extraordinary haste in making such delivery when,
as we have said, therein lay the real bone of contention, and there
appeared to have been imposed no justification therefor.
Bolivar profited much by the termination of the campaign, for.
shortly thereafter, he was thus enabled to check the spirit of rebel
lion among his own people and defeat General Cordoba, who had
risen in insurrection against him (September 12th).
§11. Composition of the Treaty of 1829.
i) Guayaquil Conferences (Gual-Larrea) ; Observations
Thereon. — Following the agreement at Piura, the Governments of
Colombia and Peru entered on negotiations for a definitive treaty
of peace, appointing, as their respective plenipotentiaries, D. Pedro
Gual and D. Jose Larrea, who met at Guayaquil for that purpose
in September, 1829, and reached an agreement after six conferences.
At the second conference, on the 16th, the question of boundaries
was broached. The Plenipotentiary of Peru proposed that it
should be settled on the basis of "the present possession of terri
tory," or that it should be left to a commission, and that, in case
such commission should not agree, it should be referred to a friendly
government. The Colombian Plenipotentiary said he thought it
would be well to use more precise language in order to avoid
any occasion for misunderstanding, and suggested that it would
be better to adopt the expression "the demarcation of the ancient
Viceroyalties,'' which had been agreed to by Peru in the treaty
he exhibited (that of 1823), without prejudice, to "making mutual
cessions and concessions" to secure a more natural and exact
divisionary line. The Peruvian representative replied that the
treaty was not in force because it had not been ratified by Co
lombia. The Plenipotentiary (of Colombia) rejoined that, if his
government had not ratified it, it was "because it did not offer, in
itself, the means of arriving at a conclusion," but that it was not
because of. that fact that Peru had refrained from signifying her
consent to that demarcation.
As a result of all" this, the latter, D. Pedro Gual, proposed the
three articles bearing the numbers 5, 6 and 7 of the new treaty,
establishing the bases and procedure by which the question of
boundaries might be definitively settled.
At tbe third conference, on the 19th, tbe Peruvian Plenipoten
tiary stated that 'the articles relating to boundaries having been

208
considered, * * * the proposal therein is agreed to, being well
persuaded of the rights of his government in that respect, as well
as of the advantage and profit that would result from such a
measure." After that assent the Plenipotentiary, Dr. Jose Larrea, indi
cated the divisionary line which, in' his judgment, would be the best
to adopt for tlie definite settlement of the matter. D. Pedro Gual
stated that he did not wish to enter into topographical discussions
but that he agreed also that "his government should participate in
the instructions to the commissioners, in order that the divisionary
line running from Tumbes might establish the boundaries known
to have been possessed by the ancient Viceroyalties of Santa Fe and
Lima until it meets the Chinchipe River, the waters of which, and
as well the waters of the. Maranon, should continue to divide the
two republics as far as the boundaries of Brazil; this" (he adds)
"appears to be the best, most secure and most practical rule to work
by in order not to involve ourselves in a labor that we might not be
able to bring to an end within a period of six months."
The Plenipotentiaries pursued their consideration of other matters
pending, and signed the treaty at the city of Guayaquil on the 22nd
of September, 1829.
It will be noticed at once that at those conferences no mention
whatever was made of the restoration either of Jaen or Maynas,
whereas that was the proper time to speak of them, if Colombia
intended to claim "their restitution." On the contrary, in stipu
lating for the reduction of the military forces "in the northern de
partments of Peru and in the southern departments of Colombia,"
the possessory status was ratified, Peru being in possession of Jaen,
a province of the northern boundary department. D. Pedro Gual
further recognized that the waters of the Chinchipe divided the two
republics, which signified that Jaen was embraced within Peru.
As to the Mai anon being the divisiouary line of the territories
of Mamas, we have already seen that this had- not ceased to be an
aspiration on the part of Colombia, with no other foundation than
the claim that the inhabitants were nut includedjn the computation
for the reiuvian electoral census and in the tentative advanced dur
ing the negotiation of the treaty of 1823, which was rejected by
Peru, to ex!.;r.d the liiu. as fai as P.i.t'.il.
Thai Colombia should extend herself alonji the oast of Tumbes,
leave Jai'-n to Peru and take over a part of Maynas, was the idea

209
of Bolivar, expressed in his letter of 1822, and the line his
Minister Plenipotentiary, Gual, indicated as offering a definitive solu
tion of the boundary question, and to which idea the other Plenipo
tentiary, Larrea, who had also been Bolivar's Minister in Peru,
approached ; but in the treaty of 1829, no particular line whatever
was defined, nor was anything more definite discussed than that
Tumbes should be the point of departure for "the labors" of demar
cation to be undertaken by the commission in conformity with cer
tain fixed principles and definite conditions.
2) Official Note from the Peruvian Plenipotentiary to His
Government. — In his official note of the 23d of September, trans
mitting to his government the protocols of the conferences, the
Peruvian Plenipotentiary, Larrea, stated :
"Without insisting on the fixing of the bases as to the boundaries
of the two republics, to which, under my instructions, I was to ad
here, viz., that they should be considered as remaining in their
present position, or, in the contrary case, that the decision thereof
should he submitted to a commission to be appointed for that pur
pose, I adopted the most simple and natural course, that is, to recog
nize, as the divisionary line between the two republics, the same
that existed when they were known as the Viceroyalties of Peru
and New Granada, before their independence, avoiding with the
greatest firmness the condition adopted in article 2 of the conven
tion of Giron, which is the uti possidetis of the year 1809, as may
he seen in its literal context. So that the basis adopted by me is
general and indeterminate, admitting, therefore, of any interpretation
that may be favorabkj the points in controversy relating thereto
being submitted ±o the decision of another government for arbitra
tion, in conformity with Article 19 of said treaty. Moreover, not
withstanding these reasons, it is my personal opinion, and I so
stated at the conferences referred to, that, in order in the future
definitely to avoid controversies of every description with that re
public, it would be most suitable and convenient to fix, as the
boundaries of the two states, the mouth of ihe Tumbes river, with
a line running parallel through the environs of Loja to the source
of the Chinchipe river, the waters of which are confluent with the
Maranon and enclose our territory in that section" (D. B. P., No.
12). It seems certain, therefore, that in indicating that line, Larrea did
so on his own responsibility, induced by his personal opinion, and
by way of compromise, in order to avoid future difficulties ; by h>^
subsequen! statements, however, he revealed tbat he was not vere

210
well acquainted with the matter in hand or aware of the importance
of that which might come before him for decision. But we need
not dwell on this point because nothing was agreed to, or could have
been agreed to, concerning possible provisions by way of com
promise, beyond what was expressly stated in the treaty.
With regard to the cleverness of which he boasts, in having left
the bases for the boundaries in a general and indeterminate state,
so that Peru might interpret them in her own favor and leave
the final decision to the arbitration of another government, it seems
clear that he confined himself to the acceptance of what had been
proposed by Gual, who dominated the conferences, and that he did
not aspire at that time to fix the divisionary line, but only to
establish the basis and the procedure to be followed at an opportune
time, in making the delimitation, and to stipulating, in that pro
cedure, for international arbitration as a last resort.
3) Exchange of Ratifications without Previous Approval by
the Colombian Congress. — That treaty was signed at Guayaquil
September 22, 1829, by the Plenipotentiaries, D. Pedro Gual and
D. Jose Larrea, whereupon ratifications by both governments were
exchanged, in the same city, on the 27th of October of that year,
by Sr. Larrea, in the name of Peru, and General D. Juan Jose
Flores, in the name of Colombia (D. M. P., No. 22).
But it is important to call- attention to the fact that the Govern
ment of Colombia ratified the treaty without the previous approval
of its Congress, as required by the constitution of that country. It
is said that Bolivar intended to present it for legislative approval
in conjunction with the boundary convention when the latter should
have been negotiated, but the fact is that Colombia was dissolved
without entering into the convention and before the treaty was
approved by its Congress. It, therefore, remained imperfect. We
shall deduce the consequences of that imperfection at the proper
time.

CHAPTER IV.
Treaty of Guayaquil of 1 829,
(Its Tenor and Interpretation.)
Summary :
I. Tenor of the Treaty of 1829. — 1. Special articles relating to the boun
dary question. — 2. Articles relating to ether questions. — 3. Ar
ticles relating to all questions.
II. General characteristics of the treaty.
III. Interpretation of the treaty. — 1. Colonial boundaries and the respective
territories : a) the ancient Viceroyalties ; b) before the inde
pendence. — 2. Territories to which the colonial boundaries re
ferred. — 3. Procedure for the fixing of the boundaries.
§1. The Tenor of the Treaty of 1829.
The treaty of Guayaquil of September 22, 1829, the history of
which we have just given from the origin of the war that brought
it about to its ratification, contains twenty articles. Four relate
exclusively to the question of boundaries, fourteen deal with other
questions, and two are common to all (D. M. P., No. 22).
i) Special Articles Relating to the Question of Boundaries. —
The articles relating exclusively to the boundary question are the
5th, 6th, 7th and 8th, the text of which we reproduce :
"Article 5th. Both parties recognize, as the boundaries of their
respective territories, the same that were possessed before their in
dependence by the ancient Viceroyalties of New Granada and Peru,
with such variations only as they may judge convenient . to agree
on between themselves; to which effect they Obligate themselves
from the present moment reciprocally to make those cessions of
small parcels of territory which may contribute to fix the divisionary
line in the course most natural, exact and calculated to avoid con
tentions and vexations between the authorities and inhabitants along
the frontiers.
"Article 6th. In order that this last result may be obtained as
expeditiously as possible, it has been agreed, and is hereby express
ly agreed, that there shall be constituted and appointed by both
governments a commission, composed of two persons for each

212
Republic, who shall survey, rectify and fix the divisionary
line in conformity with the stipulations in the preceding article. That
commission shall, with the concurrence of the respective govern
ments, place each of- the parties in possession of the territory to
which it may be entitled, accordingly as it proceeds with the recog
nition and tracing of said line, beginning from the Tumbes river,
at the Pacific ocean.
"Article 7th. It is likewise stipulated between the contracting
parties that the boundary commission shall begin its labors forty
days after the ratification of the present treaty and shall conclude
them within the period of six months following. If the members of
said commission should disagree on one or more points in the
course of their operations, they shall submit to their respective gov
ernments a circumstantial account of all that has been done, in order
that those governments, taking such accounts into consideration,
may amicably reach the most mutually advantageous determination
of the matter, the commission in the meanwhile to continue its labors
to a conclusion without any manner of interruption.
"Article 8th. It has been agreed, and is hereby expressly agreed,
that the inhabitants of the small parcels of territory which, by virtue
of Article fifth, may have to be ceded mutually by the contracting
parties, shall enjoy the prerogatives, privileges and immunities en
joyed, or which may be hereafter enjoyed, by the other inhabitants
of the country in which they may definitely establish their residence.
Those who shall declare before the local authorities their intention
to become citizens of the territory of Peru or of Colombia, shall
be allowed a year within which to make such disposition as they
deem best of all their movable and immovable property and to re
move themselves, with their families and property, to the country
of their election, free from all obligations and rights whatsoever,
without being subjected to the least molestation or hindrance."
2) Articles Relating to Other Questions.— Preceding the ar
ticles above quoted appear those providing that "there shall be a
peace perpetual and inviolable, with constant and perfect friend
ship, between the two republics"; that the contracting parties
obligate themselves to forget all that has taken place ; that neither
shall give freedom of passage through its territory, or lend aid to
the enemies of the other, and that the military forces in the northern
departments of Peru and the southern departments of Colombia
shall be reduced to a number necessary merely for the maintenance
of security and order.
After the articles relating to boundaries, the treaty deals with
the subject of navigation and traffic upon the rivers running, or
which may run. through the frontiers of the two republics; with the

213
indebtedness contracted by Peru for the aid received from Colom
bia at the time of her independence; with restoration of ships and
other property seized during the late war and acquired in fulfill
ment of compromises growing out of that war ; with the considera
tion due the diplomatic and consular representatives; the freedom
of commerce between the two republics; the extradition of fugi
tives from justice, and with co-operation in bringing to an end
the traffic in African slaves.
3) Articles Relating to all Questions. — These are the two last
mentioned. The next to the last, that is, article 19th, provides that the Re
publics of Peru and Colombia, desiring to maintain the peace and
good understanding happily just re-established by the present treaty,
declare solemnly and formally:
First, that in case of doubt as to the understanding of any of the
articles of this treaty, or of failure amicably to agree upon a settle
ment of the points that may be the subject of disagreement by the
commissioners who are to act under the provisions of articles sixth
and tenth of this treaty, one party shall present to the other the
reasons which are the basis of the doubt, and, still failing to agree
themselves, they shall both submit a circumstantial statement of
the case to a friendly government, whose decision shall be absolutely
obh'gatory. Second, that, whatever may be the causes of offence occurring
between the two republics, whether by way of complaints on ac
count of injuries, insults or grievances or others whatsoever, neither
shall authorize acts of reprisal or declare war against the other
without first submitting the differences to the government of a power
friendly to both, and,
Third, that, before having recourse to another power for the re
solving of doubts arising out of any of the articles embraced
in the present treaty, or for settlement of their differences, they shall
employ between themselves all those measures of concilation and
agreement proper between neighboring nations united by ties of
blood and most friendly and close relations.
The final article, the 20th, provides for the ratifications.

214
§11. General Characteristics of the
Treaty. From a simple reading of the Guayaquil treaty of 1829, may be
deduced the following general characteristics :
1st. It is not a special boundary treatv, but, as expressly stated
in Article 1st, is one of those called of peace and amity, and deals
with the variety of matters that such treaties usually embrace.
2d. It does not establish the divisionary line between the re
publics of Peru and Colombia, and, therefore, does not settle the
question of boundaries; it establishes merely the basis and the
procedure for a delimitation thereof.
3d. It leaves the final solution of the matter pending upon what
is done by the special commissioners, acting in accord with their
respective governments, upon the agreement of those governments,
or amicable compromise in case of disagreement, and, upon the de
cision of another government, to be named as arbitrator, as a last
resort — that is to say, pending an agreement of the commissioners,
an amicable compromise by the governments or an international
arbitration. The defence for Ecuador maintains, however, that the question
was decided, and decided in favor of Colombia, by that treaty, as
to which, passing now to its interpretation, we shall see.
§111. Interpretation of the Treaty.
i) The Colonial. Boundaries of the Respective Territories. —
The first , doubt arising in ^the interpretation of Article 5th of
the treaty, in which is established the basis for the delimitation, is
as to which territories the word boundaries refers in that clause
which begins: "Both parties recognize, as the boundaries of their
respective territories, the same that were possessed by the ancient
Viceroyalties before their independence. * * *" Does the word
boundaries refer to the territories which, as provinces, or as depart
ments, made up the States of Peru and Colombia? Does it refer
to those which formed part of the ancient Viceroyalties?
Let us leave this question until after we have decided the more
simple one as to the historical moment to which allusion is made
in speaking of the ancient Viceroyalties before the independence.
Ecuador has derived from those words — the interpretation being

215
so clear, that it is enough to abide by their literal meaning — her
principal argument, that the present question stands decided, claim
ing that the solution dates back. to the time when the Viceroyalty
of Santa Fe, or New Granada, was created.
a) The Ancient Viceroyalties. — We relate now their antecedents.
The Mosquera-Monteagudo treaty of July 6, 1822,. left for a
special convention "the demarcation of the exact boundaries that
were to divide the territories" of both states. The Galdeano-Mos
quera convention of December 18, 1823, stipulated that "both par
ties recognize, as the boundaries of their respective territories, the
same that were possessed in the year 1809 by the ex-Viceroyalties of
Peru and New Granada." The Colombian Congress declined to
ratify that convention because it rejected the final clause of Mos-
quera's proposal: "from the disemboguement of the Tumbes river
to the territories of Brazil," under the pretext that the con
vention thereby became obscure, ahd that its interpretation might
lead to conflict. The bases for peace proposed by General Sucre
at Ona on the 3d of February, 1829, provided that a commission
should be 'appointed "to settle the boundaries between the States,
the political and civil divisions of the Viceroyalties of New Granada
and Peru in August, 1809, when the revolution of Quito began, to
serve as the basis of such settlement." The same was proposed in
the peace convention of Giron, ratified by Sucre and La Mar, March
1, 1829, eliminating the word "civil." The proposal formulated by
the Plenipotentiary of Colombia, in the second conference at Guaya
quil, and accepted at the third conference by the Plenipotentiary
of Peru, contained the same provision that is found in the treaty
they signed, but using the word extinguished instead of ancient
(Viceroyalties), which appears in the treaty.
In tbe protocols of those conferences it is not explained why the
Plenipotentiaries substituted "extinguished" for "ancient," from
which we must conclude that it was a correction of style, made when
the treaty was engrossed for signature. There wasj as A matter of
fact, more propriety in the language "ancient Viceroyalties" — to sig
nify that they might not be understood as still existing — than in the
use of the words "ex-Viceroyalties," or "extinguished Viceroval-
ties" used before to express the same' idea — that is, that they were
no longer in existence/that they had ceased to be, contradistinguish
ing the colonial regime, which was the ancient, from the regime of
the new States, which was the modern.

216
The defence for Ecuador resorts to the denomination "ancient
Viceroyalties" in order to antedate the colonial boundaries as far
back as the dates of the two births of the Viceroyalty of Santa Fe,
maintaining that the royal decree of 1717, creating it the first
time, and that of 1739, which re-established it after its extinguish
ment, are the two titles on which it must depend for the antiquity
alluded to by Ecuador. So that Ecuador seeks to suppress all the
titles justificative of the rights of Peru and consistent with the modi
fications made in that territorial division by other royal decrees en
acted subsequently, and wiping out the history oi those ancient Vice-
royalties as if their lives were reduced to the single incident of their
births. Assuming that the State of Ecuador is the successor in
ownership and inheritance of the Viceroyalty of Santa Fe, through
the succession of Colombia, it forgets, notwithstanding, that owner
ship may be acquired in the legal situation in which it ultimately
finds itself — that the property she receives as heir is not that which
the deceased possessed at birth, or during life, but that which is left
at death.
b) Before the Independence. — "Independence," having reference
to the Viceroyalties, although it may also refer to component parts
of the new States, it is certain that the word accomplishes the de
struction of Ecuador's claim that the boundaries are those of the
date of the birth of those States, indicating on the contrary their
death, as we have said.
General Sucre, the author of the bases drawn up at Ofia, and
signer of the convention of Giron, in submitting to Bolivar his
opinion of the treaty that had been concluded, lamented the fact
that the question of .boundaries had not been made more clear. "In
its reference," he said, "to those possessed by the two Viceroyal
ties at the time of- achieving their independence, it has been
left obscure, because Peru proclaimed herself independent in the
year '20, New Granada in the year '10, and, in both epochs, the revo
lution itself extended the authority of the Viceroy of Peru. For
that reason I fixed upon the boundaries existing in the year 1809,
which was a thing well understood." (M. P., vol. II, pp. 97 et seq.)
All were agreed that, in order to fix the colonial boundaries, it
was necessary to adhere to those existing in the last moments
of the colonial regime. There were two ways of identifying them :
one, by determining upon the date, and the other by setting up the
fact of the death of the ancient regime, and the apparition of the

217
new — the independence. To designate the year 1809, in which the
revolution of Quito broke out, was to betray historical inaccuracy,
since the events of that year in Quito lacked importance and did not
modify the colonial regime. Peru remained loyal to Spain until the
entry of San Martin in September, 1820, which was the beginning
of the general uprising; Guayaquil emancipated itself in October of
the same year ; Jaen in May, 1821 ; Lima proclaimed the inde
pendence of Peru on the 28th of July ; Quito remained submissive
until a few days after the battle of Pichincha, in May, 1822, and the
Viceroyalty of Peru did not really disappear until Bolivar and Sucre
achieved the victories of Junin and Ayacucho in 1824. Because of
this indetermination of dates, the authors of the treaty of 1829 con
sidered it preferable to refer to the "independence."
But in this there lurked the danger for Colombia suggested by
Sucre, lest the Viceroyalty of New Granada, having disappeared
before that of Peru, the Peruvian Government should claim terri
tories coextensive with the Viceroys of Lima during the war, for
which reason, as General Sucre says, he determined upon the year
1809. Under that possible interpretation, Peru could claim the province
of Quito itself. But Peru only claims title to the colonial boundaries,
those possessed by the Viceroyalty of Lima in accordance with the
colonial law by virtue of which they were defined. It should be
noted that, iu 1809, there were in force the Royal Decree of 1802
incorporating Maynas and the royal order of 1803 incorporating
Guayaquil, declared "absolute" by that of 1806, and which left
no doubt that Tumbes bounded on the Machala.
As to the province of Jaen, there was in force the royal order of
1784, which provided for its incorporation in the Viceroyalty of
Peru, leaving it in suspense only as to the condition that the Viceroy
of Santa Fe "should not object on account of serious inconvenience,"
and that condition was removed from the moment in which that
Viceroyalty ceased to exist, and the jurisdiction passed to the Vice-
royalty of Lima, which exercised it until the province emancipated
itself on the 8th of May, 1821, and voluntarily united itself with
the new Peruvian State.
2) The Territories Referred to by Colonial Boundaries.—
Article 5 of the treaty of 1829 stipulates that: "Both parties recog
nize, as the boundaries of their respective territories, the same that
were possessed before their independence by the ancient Viceroyal-

218
rjes * * *" ^0 our understanding, this means that the boun
daries respectively enclosing the contracting states were to be the
same that enclosed those territories under the ancient viceregal
regime. When that treaty was signed, Colombia was in possession of
Guayaquil by virtue of the inexplicable surrender agreed to at Piura,
and Peru was in possession of Tumbes, Jaen and Maynas. The
boundaries possessed by those territories, and other boundary points
possessed under the colonial regime, must necessarily have been
those which would have been held under international law con
stituting the frontier between the two republics.
On the signing of tbe treaty of July 6, 1822, with the Republic
of Colombia, Tumbes, Maynas and Jaen were integral parts of the
state of Peru. By that treaty they mutually recognized each other
as States, leaving to a special commission the determination of their
exact boundaries. Guayaquil still preserved its independence. Boli
var, supreme executive and Dictator of Peru, from which he sepa
rated Bolivia, did not turn over Jaen or Maynas to Colombia, but
governed them as Peruvian provinces. War broke out. then came
peace, and Colombia assumed the position of being repossessed of
her territory by the restoration of Guayaquil and the retirement of
the Peruvians from Loja, by virtue of the convention of Giron.
Neither in the peace preliminaries nor in the conferences leading up
to the treaty of 1829, nor in that treaty itself, is the restoration of
Jaen or Maynas spoken of- — a proposition that would have been
inevitable if the purpose bad been to alter the possessory status and
put an end to a supposed usurpation. So, then, the. treaty of 1829
denotes the sanctioning of the possessory status, the republics hav
ing recognized their respective territories with the limits possessed
by them before their independence.
The defence for Ecuador maintains that the restoration of Jaen
and Maynas was tacitly provided for in tlie treaty, because, as Vattel
says, "matters without which it is impossible to substantiate the
subject of an agreement are tacitly conceded," and that matter hav
ing been the cause of the war, it is not conceivable that Colombia,
the victor, would lend herself to the establishment of peace without
obtaining the fruits of her victory.
But we have already shown that the restitution of Jaen and May
nas was not tbe true object of the war, and that the war continued
after the victory of Tarqui, that Colombia was the party to offer
peace, and that Bolivar was the one most in a hurry to start it and

219
bring it to an end, because of the political situation in which he
found himself.
We agree with Vattel that a treaty of peace should be interpreted
against the party proposing it because, "in a certain way that party
is the one who dictates it, and, as with that party lies the fault of
not having expressed itself with more clearness, it may not com
plain of any broadening or restriction of the meaning of tbe terms
to a less favorable sense * * *"
In any event, cessions of territory are not presumed, even when
the conqueror may have occupied and retained possession of them.
"The cession of territory," says Bonfils, "requires a formal agree
ment set forth in the treaty of peace." And Calvo maintains : "The
status of possession- at the moment of the conclusion of peace is
considered, in the absence of provision to the contrary, as the basis
of the new public order created by the peace ; each party retains the
sovereignty over the territory it occupies. When the conquered party
can only secure peace at the cost of a portion of its territory, such a
cession is made an integral part of the treaty of peace, or of a sup
plement thereto, enumerating the territories ceded. * * *"
The proof that, in the treaty of 1829, both parties respected the
territories then in each other's possession, reducing the question to
a matter of delimitation, lies in the fact that Article 5th speaks
only of small parcels of territory in providing for reciprocal cessions
by which the parties were to "fix the divisionary line in a manner
natural, exact and calculated to avoid contentions and vexations
between the authorities and the inhabitants along the frontiers."
To those small parcels of territory reference is also made in Article
8th. Certainly neither Guayaquil nor Jaen, and much less Maynas,
could be qualified as "small parcels of territory." And if they had
agreed, or authorized an agreement, to cede those provinces, there
would have been an express provision to that effect.
3) Procedure for the Determination of Boundaries. — Accord
ing to Article 6th, a commission composed of two persons for
each republic was to be appointed for the purpose of surveying,
rectifying and fixing the divisionary line. That commission, the
article provided, "shall, with the concurrence of the respective gov
ernments, place each of the parties in possession of the territory
to which it may be entitled, accordingly as it proceeds with the
recognition and tracing of said line, beginning from the Tumbes
river at the Pacific ocean."
To speak of Tumbes was, without so stating, to leave Guayaquil

220
to Colombia, as we have already suggested in our discussion of
Mosquera's proposal at the time of the negotiation of the conven
tion of December 18, 1823; and Guayaquil had been the constant
concern of Bolivar, the moving inducement for the continuation of
the war after the battle of Tarqui, and the subject matter of his
chief interest in the treaty after he had succeeded in recovering
it by the armistice of Piura.
We need not reiterate the demonstration of Peru's perfect right
to the territory situated on the other side of the river, or Peru's
opposition to Mosquera's proposal that the mouth of the river in
the Pacific should be determined upon as the starting point of the
divisionary line. With greater skill Colombia manages now to
mention the Tumbes river in the treaty, not, however, setting it up as
a boundary, but only as the point at which the work of delimitation
was to be begun. The area lying between that river and the Machala,
the true boundary of Guayaquil, remained in the nature of a neutral
zone. If in that work of delimitation the titles to the plantations
of Callancas and Sarumilla, already iamiliar to us, had been pre
sented, we do not believe that the commission would have -declined
to admit them, as those presented by proprietors along a boundary
in justification of their rights under a private demarcation are
admitted, whatever may be the point of departure taken for its
verification. In case the commissioners should disagree on one or more points
in the course of their operations, they were to report to their govern
ments, in order that the latter "may amicably reach the most suitable
determination of the matter"; and on their failure so to decide, those
governments were to submit the point m dispute to the decision of a
friendly government.
The doubts occasioned by the wording of the basis of settlement,
and the difficulties arising in its application, lead one to believe that
the divisionary line never would have been settled except by com
promise or arbitiaiiou.

CHAPTER V.
Treaty of Guayaquil of 1829.
(Its Nonfulfillment and Inefficacy.)

Summary :

I. Nonfulfillment of the treaty of 1829.— 1. Postponement of the work
of demarcation. — 2. Predispositions on the part of Colombia; the
letter of the Plenipotentiary, D. Tomas Mosquera — .3. Predispo
sitions on the part of Peru.— 4. Colombia dissolves without mak
ing the demarcation.
II. The supposititious Pedemonte-Mosquera protocol of 1830. — 1. Its tenor.
— 2. Peru denies the existence of that protocol. — 3. Reasons in
ducing the denial of its authenticity.— 4. Arguments contrary to
its validity and efficacy.
III. Caducity of the treaty of 1829. — 1. Extinction of the personality of
Colombia as a contracting party. — 2. Impossibility of correcting
the imperfection of the treaty; its consequent nullity.— 3. Im
possibility of fulfilling the provisions of the treaty as to pro
cedure.— A. Negotiation of subsequent treaties.
§1. Nonfulfillment of the Treaty of
1829. i) Postponement of the Work of Demarcation. — The com
missioners appointed by the Government of Colombia to carry out
the treaty as to the question of boundaries, presented themselves at
Tumbes on the 21st of December, 1829, and, those from Peru not
having joined them, the former wrote to their Minister at Lima,
General D. Tomas Mosquera, so informing him and explaining the
difficulties in the way of commencing operations, occasioned by the
season. The Colombian Minister notified the Peruvian Secietary
of State of the situation and proposed that the operations should
be postponed until the month of April, when the season should have
changed and the roads improved. The Secretary agreeing, in ac
cordance with his note of January 8, 1830, the work was postponed
until the following April (D. M. P., No. 23).
2) Predispositions on the Part of Colombia; the Letter of the
Plenipotentiary, D. Tomas Mosquera. — As soon as the treaty of
1829 was ratified, General D. Tomas Mosquera, the brother of the

222
negotiator of the earlier treaties of 1822 and 1823, was appointed
Plenipotentiary at Lima, charged specially with the settlement of
the boundary question.
In one of the memorials of General O'Leary appears a letter from
Mosquera addressed to Bolivar, in which, after felicitating him upon
the ratification of the treaty, he says: "Among the documents de
livered to me by General Espinar for the Legation of which I have
been in charge, there is a copy of the Spanish Royal Decree that
orders the aggregation to Peru, in 1802, of the province of Maynas.
From what may be gathered from the communications of my brother
Joaquin, when he was in charge of this mission, that decree is not
in Peru's possession, it- apparently having been burned with the
archives of the government. I shall, therefore, have to conduct
the negotiations depending on the decree aggregating the Presi
dency of Quito to the Viceroyalty of New Granada; but as I may
be confronted with authentic documents, I should like to be in
structed respecting my course in that particular, for, as article 5th of
the treaty establishes the uti possidetis of 1809 as the basis, they
could with justice claim the left bank of the Marafion" (M. P., vol.
II, p. 103).
So that D, Joaquin Mosquera, the negotiator of the treaties of
1822 and 1823, had knowledge of the Royal Decree of 1802, and
his brother, Don Tomas, notwithstanding he also knew of the de
cree, was prepared now to negotiate on the assumption that Peru
would not present it because of its having been burnt, apprehending,
however, that she might set it up in her favor, in which event he
would be under the necessity of recognizing that she could with
justice claim the left bank of the Marafion, that is to say, the north
ern part of that river, to obtain which Colombia had been putting
forth her claims. With what censure would Ecuador have judged
such procedure if it had been adopted by the plenipotentiaries of
Peru !
But there is more of this: the Plenipotentiary of Colombia,
charged with carrying into effect the treaty of 1829, declares posi
tively that that instrument has for a basis the uti possidetis of 1809
—in other words, the recognition of the possessory status, and, con
sequently, that the colonial limits would have to be those of that
date. Why invoke the royal decree creating or re-establishing the
Viceroyalty of New Granada? Because of his belief that Peru
would not present the titles justifying her rights owing to their
having been "burned" with her archives.

223
In its instructions to her commissioners for the settlement of the
boundary question, the Chancellery of Colombia does not speak to
them of strict legal right, but directs them to secure an advantageous
compromise by which Colombia should obtain the line of the
Marafion, ceding a large part of Jaen and making out a divisionary
line from the Quiros River to the source of the Huancabamba.
Did the treaty of 1829 authorize those "large" cessions of territory?
Did Colombia possess the right to claim Maynas in accordance with
the basis of colonial boundaries while the Royal Decree of 1802
was in existence?
In the official note of January 7, 1830, in which Mosquera pro
posed to the Peruvian Minister the postponement of operations, he
suggested that, in the meanwhile, they might undertake to reach an
agreement concerning the boundaries, and discussed with him cer
tain cessions of territory, such as part of the province of Jaen, of
Tumbes and the Colan river, but making no mention of the Mara
fion (D. M. P., No. 23).
3) Predispositions of Peru. — The Peruvian Minister, D. Jose
Maria Pando, replied to Mosquera's note on the 8th, agreeing to
the postponement, and adding that, until Col. Althaus should finish
the map he was making, "it would be idle to enter upon discussion
as to the best frontier between the two countries that could be
adopted" (D. M. P., No. 23).
This same Minister of State, Pando, sent to Mosquera on the 5th
of February a proposal for a divisionary line for submission to his
government. Accompanying it was a note in which he said :
"Would it be desirable, would it be profitable, to insist upon the
principle that the boundaries of Peru and Colombia should be
those which nominally separated Peru and New Granada ? The
government of the undersigned does not think so. On the con
trary, it is of the opinion that it should adhere to the prudent stipu
lation set forth in article 5 of the treaty of September 22, 1829,
that the contracting parties shall make reciprocally those cessions of
small parcels of territory that would contribute to the fixing of the
divisionary line in a manner more natural, exact and capable of
avoiding contentions and vexations."
The proposal submitted was the following:
"Beginning at the confluence of the Maranon and Chinchipe riv
ers, the divisionary line should follow the course of the latter, and
afterwards its branch, known as the Canche, as far as its source;

224
from thence, a divisionary line intersecting the cordillera of Aya
baca along the crests that divide the watersheds, and continuing
as far as the Macara river in the Espindula ravine ; the divisionary
line then should follow the course of the Macara itself as far as its
confluence with the Catamayo, from which union is formed the
Chira, and descend with the course of that river to the rivulet
Lamor, which could serve as a boundary for several leagues; from
thence it should follow a ravine known as Pilares, continuing
through the unpopulated region of Tumbes to the Sarumilla river,
also called Santa Rosa, which would close the boundary on the
Pacific side." {D. M. P., No. 24.)
Pando repeated the above in his instructions of April 15, 1830,
to the Peruvian Commissioners, cautioning them that, in case the
Colombian Commissioners should not agree, they were to act in
accordance with Article 7th, submitting a circumstantial report to
the Government (D. M. P., No. 25).
According to that projected line and those instructions, the prov
ince of Jaen and the northern part of Tumbes remained in Peru,
and nothing was said as to the line of the Maranon, the retention
of Maynas being taken for granted. In this way Pando conceived
that the treaty ought to be carried out, making cessions of no terri
tories other than the small parcels necessary for regularizing the
frontier by mutual agreement.
4) Colombia Dissolves without making the Demarcation. —
In the very month of April, 1830, in which the Peruvian Minister
of Foreign ^Relations gave those instructions to the Commissioners
of Peru for carrying into effect the treaty of 1829— which goes to
show that there had not yet been a failure to agree — the negotia
tions in progress iy the Colombian Congress ^ for the preservation
of the tmion-of the Venezuelan provinces were broken off, and, in
the following May, Bolivar's republic was dissolved. On the 6th
of that month the constituent Congress of the State of Venezuela
assembled, and, on the 13th, the new State, which, with the other
two departments of the south, Guayaquil and Azuay, took the name
of Ecuador, was proclaimed at Quito ; on the 31st, it declared itself
as ^uch new State, wholly indqjendent of New Granada and
Venezuela. Leaving for tin chapter to follow the story of Colombia's -demise
and the birth of tl ise-new States, Jive confine ourselves to pointing
out the -.^t s, for tin. purpose of showing that Colombia stood dis
solved in May, 1830, without having accomplished with Peru the
-W:- Manors that the treaty of 1829 entrusted to a mixed commis-

225
sion, and before the Commissioners or their governments could
reach an agreement as to the method of verifying that delimitation.
And, notwithstanding this, the defence for Ecuador, though in
the first Memorial filed in this Arbitration, invoking the treaty of
1829 as being in force, and urging that the appointment of the mixed
commission should be proceeded with to carry the treaty into effect,
demands now that it be accepted as fulfilled and perfected, alleging
that, in accordance therewith, the delimitation was agreed to as
provided in the protocol of the Peruvian and Colombian represen
tatives, Pedemopte and Mosquera, which it is alleged was signed
on the 11th of August, 1830, three months after the departments
of the south had proclaimed themselves independent, in a declara
tion setting forth the dissolution of the Republic of Colombia.
A contemplation of that performance ought to be sufficient to
enable us to understand how unfounded is Ecuador's new claim,
yet the importance she ascribes to the supposititious protocol makes
it necessary for us to examine.it with great care.
§11. The Supposititious Pedemonte-
Mosquera Protocol of 1830.
i) Its Tenor. — It appears that D. Carlos Paz Soldan, son of
the Peruvian geographer and publicist, Don Mariano Felipe, found
among his father's papers a simple* copy of the memorandum,
draft, or whatever it was that they called the Pedemonte-Mosquera
protocol, and that the copy, certified from that copy of Sr. Valen
zuela, Minister of the present Republic of Colombia, is the docu
ment presented by Ecuador before this Arbitration.
The manuscript, or simple copy, to which we refer (D. M. P.,
No. 26) states that, at Lima, on the nth of August, 1830, the Peru
vian Minister of Foreign Relations, D. Carlos Pedemonte, and the
Plenipotentiary of the Republic of Colombia, General D. Tomas C.
de Mosquera, met "to agree on the bases that should be adopted
by the Commissioners for the demarcation of the boundaries be
tween the two republics."
The Peruvian Minister stated that, from the time the Bishopric
of Maynas was formed in 1802, that territory had remained a de
pendency of the Viceroy of Peru. General Mosquera replied that

*The "simple" copy known to Spanish law is an unauthenticated, or unat
tested copy as distinguished from the "legalised" copy referred to in this
work. — Translator.

226
when the Bishopric of Maynas was created, the Royal Decree did
not clearly determine its boundaries; that the provinces of Jaen de
Bracamoros and Maynas returned to the possession of the New
Kingdom of Granada, as is shown by the "Spanish Court Guide"
for 1822. He read a letter from the Liberator, in response to an
inquiry that had been made of him, and proposed that "there be
fixed, as the basis for the boundaries, the Maranon, from the mouth
of the Yurati, in its upper waters, to the point where it meets the
Guancabamba River, and the course of the latter river to its origin
in the cordillera, and from thence taking a line to the Macara in
order to follow along to the headwaters of the Tumbes River." By
this method, he added, the question would be concluded, and the
Boundary Commission could carry into effect Articles 6th, 7th and
8th of the treaty.
After a protracted discussion, the memorandum continues, the
Peruvian Minister agreed to those bases, but with modifications,
"fixing for the terminal point, not the mouth of the Guancabamba,
but that of the Chinchipe River." The Colombian Envoy stated
that what he had offered was all that he could concede, "since, it
having been proven that the Decree of 1802 was modified, and that
Maynas and Jaen were dependencies of the Viceroyalty in 1807,
when the Bishopric was organized out of the Missions of Caqueta,
or Yapura, and Andaquies, that vvas what was provided in Article
8th of the treaty.''
The memorandum concludes as follows :
"The Minister of Foreign Relations proposed that the bases for
settlement suggested by the Colombian Minister Plenipotentiary be
adopted, leaving their modification as a point pending, and th*t
the Colombian Government should consider that modification. * * *
The Colombian Minister agreed to everything, accepting from the
present moment, as recognized, the perfect right in Colombia to aj>l
the territory on the left bank of the Marafion, or Amazonas, and
recognized Peru's dominion over the right bank, the only question
left pending for decision being whether the boundaries should be
run along the Chinchipe or the Guancabamba ; and, for the purposes
above set forth, the Peruvian Minister of Foreign Relations a'nd the
Envoy Extraordinary of Colombia have signed this protocol on the
date first above written.— Carlos Pedemonte.— T. C. de Mos
quera." 2) Peru Denies the Existence of that Protocol.— The first time
that protocol is spoken of is in the note addressed by the Colom-

227
bian Charge d'affaires at Lima, D. Luis Tanco, to the Peruvian
Minister of Foreign Relations, on the 7th of July, 1892, on the
occasion of his receipt of the third volume of the Collection of
Treaties of Peru, published by the Department of Foreign Rela
tions/ The Charge d'affaires tells him that in examining the Col
lection he had missed the protocol signed at Lima on the 11th df
August, 1830, by Sres. Pedemonte and Mosquera for the purpose
of agreeing on the bases to be relied on by the commissioners far
the demarcation of-the boundaries between the two Republics ; and,
in view of the importance of that document, referring, as it did,
to steps taken to interpret the treaty of 1829, he asks for an expla
nation of the omission, "to the end that Colombia's lawful titles,
in her boundary dispute with Peru, may not appear to be lost sight
of." The Charge d'affaires wrote again on the 22d of December
of the same year.
The Peruvian Minister of Foreign Relations replied on the 9th
of September, 1893, as follows:
"After most thorough search for the document to which your
Excellency refers in your notes of July 7th and December 22d, ulti
mo; and for any diplomatic communication in which it might be
cited, I can assure your Excellency in reply that such a document
does not exist in the archives of this Department, for which reason
it was not included in Volume III of the Arandas Collection. I,
therefore, do npt deem it necessary to take into consideration the
remarks your Excellency is pleased to make on the subject of the
contents of the protocol or to consider the weight that might be
attached to that diplomatic act." (D. M. P., No. 26.)
Colombia had nothing to say in reply to the Peruvian Minister's
note, demonstrating by her silence that no such protocol existed or
that it had not been found, for, if it had been in her possession, or if
she had known where it could be found, she would have produced it
or insisted on her claim, to show that it was well substantiated,
Ecuador now invokes that protocol in the present Arbitration, but.
she presents neither the original nor an authoritative certification
thereof, but produces only a certified copy oi a paper found among
the papers left at his death by a private individual, which paper pur
ports to be merely a simple, unsigned copy of the alleged protocol ;
and it goes without saying that that copy of a simple copy is without
weight as evidence.
Peru, in her Final Memorial in this Arbitration, unqualifiedly
opposes the admission of evidence of that nature, and persists in

228
her denial of the existence of the protocol (vol. I, p. 325; vol. II,
p. 122).
3) Reasons Inducing the Denial of its Authenticity. — Although
the burden of proving the existence of a document is on the party.
presenting it, either by the production of the original or an indubit
able copy thereof, Peru has demonstrated that the original never ex
isted; and this we also believe, basing our opinion on the following
reasons :
1st. That, if the Pedemonte-Mosquera protocol had ever existed,
it would have been signed in duplicate, as the alleged copy states,
and one of the originals would have been in the possession of
Colombia, who would either have produced it, or submitted some
evidence of its existence, to offset Peru's denial of 1893.
2nd. That, on the 11th of August, 1830, when the Pedemonte-
Mosquera protocol purports to have been signed, General Mosquera
had ceased to exercise the office of Plenipotentiary of Colombia at
Lima, as shown by the following documents that Peru reproduces
photographically in her Final Memorial (vol. II, pp. 133 and 134;
plates I, II and III) :
a) General Mosquera's note of luly 24, 1834, to the Peruvian
Minister of Foreign Relations, informing him that he was about
to leave for Colombia, notifying him who would be left in charge
of the negotiations and taking leave of the Peruvian Government
in terms of deepest gratitude. By a marginal note thereon, made
the following day, instruction is given to say, in reply, that the Gov
ernment "is informed of your temporary retirement from your mis
sion in Peru in order to fulfill the duties to which your country
calls you. * * *"
b) Another note from Mosquera to the Minister, dated July 31st,
requesting the privilege of transportation on the schooner Guaya-
quilena, of his baggage, which he said he would begin sending down
the following day.
c) Answer of the Marine Commander at Callao to the Govern
ment, dated August 2nd, stating that he would comply with the
orders received to facilitate the embarcation of the Colombian Pleni
potentiary. 3rd. That, on the nth of August, 1830, the day on which the
protocol is alleged to have been signed at Lima by General Mos
quera, tliat General was not at Lima, but was traveling on the Co
lombia war schooner Guayaquilcna that weighed anchor at Callao

229
on the ioth, conveying him on his passage, as evidenced by the El
Mercurio Peruana, in its issue of August 12th. On the 14th that
newspaper stated that Mosquera had embarked on the pth, bestow
ing many eulogies on him, under the heading "A Tribute to Merit/'
Peru has filed copies of that periodical and photographic reproduc
tions of the articles in question appearing therein (M. P., vol. II,
pp. 134, 135; plates IV, V and VI).
4th. That D. Carlos Pedemonte arrived at Callao from lea and
took charge of the Department on the 2nd of August, when General
Mosquera had surrendered his diplomatic functions and was on the
point of embarking. The Peruvian Minister, therefore, had not
had time to take up the question, or opportunity to deal officially
with a person who was then no longer exercising the functions of
Colombian Plenipotentiary.
5th. That General Mosquera, in a book published at Valparaiso
in 1843, discussed his mission at Lima from the time of his arrival
at that post in November, 1829, stating that he had been obliged
to give up the mission because of events in Colombia without having
been able to bring about the liquidation of the indebtedness or to
conclude the settlement of the boundaries, with respect to which,
however, he had almost reached an agreement with the Minister,
Sr. Pando, whereby Colombia was to cede to Peru a part of the
provinces of Jaen and Maynas and making no mention whatever of
Sr. Pedemonte or of any protocol negotiated with him (M. P.,
vol. II, p. 138).
6th. That no allusion to that protocol is made in any document,
nor does Sr. Valenzuela, well informed as he was respecting those
affairs, and who legalized the copy of the simple copy above re
ferred to, even mention 4t in his Memorial of 1893, prepared under
the orders of the -Colombian Government subsequently to the Peru
vian Minister's note denying the existence of that protocol (D. M.
P., vol. VII, app. 1).
All this tends to prove that no such Pedemonte-Mosquera proto
col of the 11th of August, 1830, existed, and, if what we call a
simple copy is really a copy of anything emanating at that time
-from the Colombian Legation, that something must be at most a
mere draft for the framing of a protocol for the purpose of facili
tating the work if conferences should be held and an agreement
reached. It may even be possible that it was drawn up by Mos
quera in the desire that the Peruvian Minister should sign it before

230
he set out on his journey, and that, not having succeeded in this,
he departed without hope of accomplishing more.
But, however that may be, the truth is that it was not signed,
and that it could not have been signed on that day, because Mos
quera had ceased to be plenipotentiary on the 24th of July and had
taken ship on the 9th of August.
4) Arguments Contrary to its Validity and Efficacy. — Even
admitting, hypothetically, the existence of the Pedemonte-Mosquera
protocol of August 11, 1830, it could be possessed of no validity or
efficacy whatever for the following reasons :
1st. Because on the date of its alleged execution, the Republic
of Colombia was not in existence, Venezuela and Ecuador having
separated therefrom and organized themselves into independent
States. Mosquera, therefore, lacked the representative quality and
authority necessary to contract in the name of the State that had
conferred on him his powers, because that State had ceased to exist.
2nd. Because, as set forth in the text of the protocol, the agree
ment depended on a most important question, which was whether
the boundaries were to be fixed along the Chinchipe or the Guanca
bamba, that is to say, whether or not Peru was to retain the prov
ince of Jaen, the principal basis of the alleged transaction.
3rd. Because that compromise was opposed to the stipulations of
the treaty of Guayaquil of 1829, in accordance with which it claimed
to have been drawn, inasmuch as the treaty recognized the pos
session of the respective territories and authorized only the mutual
cession of the small parcels that might be necessary to regulate the
frontier. It was, of course, impossible to regard either the prov
ince of Jaen or the northern part of the Amazonas region as such
small parcels. The compromise meant prescinding from the treaty
of 1829 in order to achieve the realization of Bolivar's scheme as
formulated in his letter of 1822, to threaten Jaen for the purpose
of obtaining as mUch as he could of Maynas; and it is one more
proof of the inverisimilitude of the protocol, for it is not conceiva
ble that Peru, who had persistently resisted that purpose while she
was under the influence of Bolivar, and while Colombia was so
powerful, would accede thereto afterwards, when Bolivar had fallen
and Colombia was dissolved.
4th. Because the alleged agreements of the protocol were not rati
fied by the respective governments, nor could that have been done
without previous legislative sanction, all the more necessary because

231
it made great cessions of territory which the treaty of 1829 had not
authorized, and since that treaty itself, from which the protocol pur
ported to derive its raison d'etre, had not been submitted for the
approval of the Colombian Congress.
After these considerations, which obviously demonstrate the non
existence of the protocol, and its ineriicacy even if existent, there
is no need to examine into the principle it sets up respecting the
rights of Colombia over Maynas. We have already seen that Boli
var as well as Mosquera was convinced that Maynas belonged to
Peru by virtue of the Royal Decree of 1802; and to say in the
protocol that that Royal Decree did not establish boundaries, that
it was only ecclesiastical in character, and that the Court Guide of
Spain of 1822 was proof of its annullment, is to reveal clearly that
Mosquera, or whoever may be the author of those arguments, lacked
ability to urge more cogent ones to give an appearance of legality
to Colombia's claims concerning Maynas.
§111. Caducity of the Treaty of 1829.
i) Extinction of the Personality of Colombia as a Contract
ing Party. — As we have already intimated, and as will appear more
fully in the chapter following, the confederation constituting the
Republic of Colombia was dissolved in May, 1830; from it was
formed the three independent States of Venezuela, Ecuador and
New Granada. No compact whatever preceded the dissolution; it
was effected instead by the separation of the provinces- of Venezuela
first, and later, by those of Ecuador. Colombia, therefore, disap
peared as a State possessed of an international individuality, and
there were born three other distinct States, with personalities dif
ferentiated from the former, and none of which was endowed with
the inheritance or liquidation of the rights and obligations that had
formerly been held by them in common.
When Colombia disappeared as an international personality, it is
clear that she also disappeared as a contracting personality, and
that no one, acting in her name, could continue the negotiation of
treaties or agreements.
Of what value and efficacy, then, were those she did negotiate ?
It is a general rule of international law that international agree
ments (treaties and conventions) are extinguished, or lapse, on the
demise of one of the contracting parties, inasmuch as one of the

232
subjects ot the rights and obligations thereby becomes lacking.
The new international entity or entities must be recognized by the
surviving contracting State, and that State is not obliged to contract
with the new State, because the latter is distinct from the defunct
one, and because international agreements obligate only the parties
entering into them in the exercise of their sovereignty.
There are usually various exceptions to that rule, such as those
relating to treaties involving the payment of indebtedness contracted,
and acts already accomplished and creative of a legal status which is
maintained by the treaty. The exceptions cited do not break the
general rule because they do not signify that the contract continues,
but rather that the liabilities of the dissolved confederation are
liquidated, or that the facts accomplished are accepted because there
is no remedy therefor, or out of the respect due to history.
But be that as it may, in the field of theory it is certain that there
is an abundant consensus of opinion as to the caducity of treaties
and conventions involving "the action, or continuance of action,"
of a state that has disappearod, or treaties which remain pending
upon "a requirement or condition" that it was incumbent on the
state to fulfill. This was the situation in which the treaty of 1829
was found on the demise of Colombia.
, 2) Impossibility of Correcting the Imperfection of the Treaty ;
Its Consequent Nullity. — The treaty of Guayaquil of September
22, 1829, was approved by the Peruvian Congress in compliance
with Articles 43 and 90 of the Constitution of 1828, which exacted
that requirement for the validity of international treaties and con
ventions. The same requirement was exacted by the Colombian constitution
of 1821, known as the Constitution of Ciicuta, Article 55 of which
provided that the "attributes pertaining exclusively to the Congress
are : * * * to give its assent and approval to treaties of peace,
alliance, amity * * * and all others entered into by the Execu
tive Power." This is reiterated in the Bogota Constitution of April
29, 1830, framed by the Colombian Congress in the last moments of
the life of that Republic. Its 36th article expressly mentions treaties
involving the "alienation, acquisition or exchange of teiritory."
Now, then ; the treaty of 1829 was not submitted for the approval
of the Colombian Congress. It would seem that Bolivar's idea was
to present it conjointly with the convention or agreement for tbe
settlement of boundaries that was to have been entered into as
stipulated in the treaty.

233
Peru, in the confidence inspired by Bolivar, passed over that omis
sion believing that it would be corrected, but Bolivar's fall and Co
lombia's dissolution occurred before the treaty was approved by the
Colombian Congress, and, as it then became impossible to fulfill that
indispensable prerequisite to its validity, the treaty of 1829 became
thereby a nullity, and the Pedemonte-Mosquera agreement would
also have become a nullity for the same reason, if it had existed.
3) Impossibility of Fulfilling the Provisions of the Treaty
as to Procedure. — It will be remembered that the treaty of 1829 did
not settle the question of boundaries, but merely prescribed a basis
for sottlement — the basis of colonial boundaries — and established
the method of procedure for the determination of its boundaries.
That method of procedure consisted in the appointment of a
mixed commission to survey, rectify and fix the divisionary line,
and place each party in the possession of its own, the respective
governments being in accord; if the commissioners should disagree,
the governments were amicably to agree upon the most suitable
settlement, and, in the event that the governments should not arrive
at an agreement, the question was to be submitted for arbitration
to a third government, friendly to both. The parties were there
upon authorized to make those reciprocal cessions of small parcels
of territory which might be convenient for the better establishment
of the divisionary line.
This shows that the boundary question was left pending by the
treaty upon the action of the mixed commission, upon the govern
ments placing themselves in accord, or upon the decision of an
arbitrator. The State of Colombia being no more, it was not then possible
to appoint the commissioners who were to represent it, or that
a government of that State could agree to any compromise what
ever, or that it could submit to an arbitration, commencing with
the designation of an arbitrator.
Could Ecuador do this in the name and as the representative of
ancient Colombia? No; because Colombia neither transmitted that
right to her upon the dissolution, nor has it been recognized by
Peru in view of the fact that the party contracted with was Co
lombia and not Ecuador, a wholly different State.
And to agree and compromise with one State is by no means
the same as agreeing and compromising with another; nor are the
circumstances confronting the parties in one case the same as in
another. Even though Ecuador had succeeded Colombia^ she could

234
not set up the treaty of 1829 against the opposition of Peru, because
Ecuador had not carried it into effect. "An international treaty,"
says Frederic Martens, "loses its obligatory force if either of the
contracting parties should undergo changes so fundamental as to
alter the legal personality and alter the very basis of its existence."
And he adds: "All international treaties are signed on the basis
of the rebus sic stantibus proviso, that is to say, in view of a status
of things that determines the object and the very import of the
compromise" (Legal Opinions, M. P. p. 172).
Compromises, as we shall, show further along, depend upon time
and circumstance. What Peru might have consistently agreed to
in the time of Colombia and Bolivar she may no longer have been
obliged to agree to after the dissolution of the great republic that
Bolivar created and ruled over. The advantages and compensa
tions derivable from a treaty with a State as great as was Colombia
are not equal to those obtainable in treating with a lesser State such
as Ecuador.
In any event, the fact is that the treaty of 1829 left the boundary
question pending on conditions that had to be carried out by both
contracting States, which fulfillment was made impossible by the
demise of one of those States. The compact, therefore, was extin
guished before it could be reduced to accomplish facts which it
would be necessary to respect.
4) Negotiations of Subsequent Treaties  On the birth of
Ecuador, she sent a plenipotentiary to Lima to treat with Peru, and,
after notice by that plenipotentiary that, as Colombia was dissolved,
her agreements were no longer valid, the treaty of 1832 was entered
into, by which there was a mutual recognition by the States of Peru
and Ecuador, as then constituted and organized, and stipulating that
"while an agreement for the settlement of boundaries was being
negotiated, the present boundaries shall be recognized and re
spected." No mention whatever is made in that treaty of the treaty
of 1829; nor is it mentioned as being in force in those subsequently
projected between Peru and Ecuador, even in the treaty of 1887,
the basis of the present arbitration.
Both parties, therefore, regarded the treaty of 1829 as having
lapsed, or they, in fact, nullified it, substituting therefor others that
contained different provisions or established procedure.
For the foregoing reasons, we maintain that the treaty of 1829
between Peru and the ancient Republic of Colombia lacks binding

235
force; and we believe that if Peru opposes it, it is not because it
could really injure her case, understood as it seems to us it ought
to be understood, but^ to render tribute to truth, because of the
tortuous interpretation occasioned by the defective wording of its
provisions, and the difficulties confronting its application, and be
cause Peru does not recognize Ecuador as the heir of Colombia or
consider herself obligated to Ecuador by other compacts than those
entered into since she recognized her as an independent State.

CHAPTER VI.
The States of Ecuador and Peru, and their
Respective Provinces.

Summary :
I. The dissolution of Colombia.
II. The State of Ecuador. — 1. Its plebiscitary formation; the departments
of which it is composed. — 2. Incorporation of Cauca; theory of
Ecuador's justification thereof.
III. The State of Peru. — 1. Peru was already constituted when Ecuador
was born; provinces of which it was, and continued to be, com
posed. — 2. Maynas (Loreto and Amazonas). — 3. Province of
Jaen.— 4. Littoral province of Tumbes.

§1. Dissolution of Colombia.
The more Bolivar was forced to maintain unity and order in Co
lombia, by means of the dictatorship and centralization of power,
the more he was accused of despotism and of seeking to establish a
monarchy or an empire, the discontent meanwhile increasing on the
part of the towns and of those who aspired to their government.
In the midst of his preparation of the definitive treaty of peace with
Peru in 1829, General Cordoba, one of the most famous leaders
of his army, revolted at Antioquia. No sooner had he suppressed
that insurrection in October, than Venezuela, his own country,
where lie had attained his first triumphs, Tose against nim.
As shown in the minutes of the proceeding of November 4, 1829,
a junta or assembly of the people at Caracas, convoked by General
Arizmendi, Chief of Police, resolved : to decline to recognize the au
thority of the Liberator, against whom violent speeches were deliv
ered ; to bring about the separation of Venezuela from the Govern
ment of Colombia, although preserving peace and amity with the
central and southern departments; to assemble a constituent Vene
zuelan congress, and to appoint General Paez to the supreme com
mand until the congress should act. Other towns acquiesced in the
resolution and General Paez, who was, next to Bolivar, the highest
authority in those departments, invited them into a new union,

237
which was sworn to on the 24th of December. On that occasion
it was resolved to address a petition to the Liberator, representing
the necessity, justice and advantage of permitting Venezuela to con
stitute herself in peace.
On the 20th of January, 1830, there assembled at Bogota the
constituent Congress of Colombia that Bolivar had proposed and
convoked in 1828, and to which he had promised to resign his
discretionary powers. That he did, rendering an account of his
acts, expressing his regret at the accusations made against him,
and insisting upon the appointment of his successor as Presi
dent. The Congress begged him to remain at the helm until
the new constitution could be promulgated and the new government
started in accordance with its terms. Bolivar accepted. Succumb
ing to an attack of sickness, however, he left General Caicedo in
charge of the government, by authority of the Congress, on the
first of March and retired to the Villa Fucha in the hope of regain
ing his health.
The Congress commissioned its President and Vice-President,
General Sucre and General Estevez, to confer with the commis
sioners of Venezuela with a view to arriving at an agreement; but
it became evident at the conferences, held at Ciicuta in the month of
April, that a return to the union was impossible. The Venezuelan
commissioners attributed its rupture to the despotism of the Libera
tor. Sucre set forth the complaints of the people arising out of the
oppression of a military aristocracy which "not even the dread
power of the dictatorship had succeeded in curbing."
The Congress, informed of the conclusion of the negotiations,
continued its debates on the new Colombian constitution, approved
on the 29th of April, 1830. Bolivar reiterated his refusal to accept
the presidency, and General D. Joaquin Mosquera was elevated to
the office on the 4th of May. The separation of Venezuela was
consummated by the assembling of its constituent congress on the
6th. Having first passed a resolution expressing gratitude to the Lib
erator for his services to the cause of American independence, the
Colombian Congress closed its sessions on the 11th. Bolivar had al
ready, on the 8th, left for Cartagena with the intention of proceeding
to Europe. On the 4th of June, General Sucre, the hero of Pi
chincha and Ayachuco^ was vilely assassinated by his enemies in the
forest of Barruecos while returning to Quito after having presided

238
over the Congress, and so profound was Bolivar's grief that it
added greatly to his sufferings in mind and body.
Notwithstanding that, the Liberator was disposed to respond to
the call, made in September by the inhabitants of Bogota, to resume
his place at the head of the republic — prepared, he said, to sacrifice
his repose, his life, and fame even, on the country's altar; but his
sufferings increased more and more until December 17th, 1830,
when he died at a country place near Santa Marta. Several days
before, he had written a proclamation, saying to the Colom
bians : "My last wishes are for the country's happiness. If my
death can contribute to the quieting of party strife and the consoli
dation of the union, I shall go down to the grave in peace." Bolivar,
who had been born to great wealth, died in poverty.
The Republic of Colombia, dissolved by the secession of Vene
zuela at the close of 1829, the State of Ecuador formed in May of
1830 and all hope of re-establishing the defunct republic gone with
the passing of Bolivar, the Colombian Government convoked an
assembly, which convened on the 25th of December, 1831, and
declared,. by its act of November 21st, that the central departments
were erected into an independent State, under the name of Nc7v
Granada. Its constitution was ratified March 1, 1832.
From the Republic of Colombia founded by Bolivar, sprang,
therefore, the three States of Venezuela, Ecuador and New
Granada.

§11. The State of Ecuador.
i) Its Plebiscitary Formation; Departments of which it is
Composed. — On the 12th of May, 1830, the day following the ad
journment of the Colombian Congress, when it had already become
known in the departments of the south that the conferences of April
with the Venezuelan commissioners had been broken off and that
Bolivar's rule had come to an end, the Prefect of the Department
of Ecuador, at the instance of the Syndic and Municipality of Quito,
and with the sanction of General Flores, the chief authority in
the southern district, convoked an assembly of the heads of
families and guilds at Quito, which met on the* 13th in the com
mencement hall of the University.
That assembly, in consideration of the dissolution of the union
resulting from the action of Venezuela, Casanare, Nieva, Popayan

239
and other provinces, as well as of the public statements emanating
from the executive power, proclaimed that Quito, "exercising her sov
ereignty, declares herself constituted as an independent State, along
with the towns embraced in the district of the south and all others
that may wish to incorporate themselves with her because of natural
relations and their mutual advantage." It was agreed, furthermore,
to commit the supreme civil and military authority to General
Flores, and it was provided that, fifteen days after the receipt of the
minutes of the proceedings of the "towns forming with Quito a
single State," he should convoke a constituent congress comformably
to regulations to be framed by him for the conduct of elections ; and
the assemblage placed on record its appreciation of the eminent
services rendered by the Liberator in the cause of liberty (D. M. P.,
No. 27).
Guayaquil, in a similar assembly, held on the 19th at the instance
of the Prefect, acquiesced in that compact, as did Cuenca on the
20th, and successively, the other cities and towns of the three south
ern departments.
General Flores, informing the Colombian government of those
events, expressed the desire that the best relations might be main
tained between the "State of the south and the Venezuelan and
Granadan States," and that a compact of confederation might be
entered into with them. On the 31st of May, he published a procla
mation setting forth that "the south has raised itself to the high
rank of a sovereign State," and that he had convoked a congress
in anticipation of the time prescribed, in order, as soon as possible.
to frame the constitution.
The Congress assembled at Riobamba on the 10th of August,
1830, according to the Ecn-adprian historian Cevallos, and, on the
11th of September, ratified' the Constitution of Ecuador, the name
taken by the new State composed of the three southern departments
of Colombia — Guayaquil, Ecuador (Quito) and Azuay (Cuenca and
Loja). Ecuador, therefore, was born of a plebiscite by the will of the
provinces which, being released from all ties by the dissolution of
Colombia, agreed to unite, in the exercise of their sovereignty, to
constitute a new State.
2) Incorporation of Cauca ; Ecuador's Theory and Justification
Thereof. —On the 27th of April, 1830, the inhabitants of Cauca (the
ancient Corregimiento of Pasto), petitioned the Prefect-General of

240
the South for its incorporation in the Department of Ecuador. On
the creation of the State of that name, their petition was reiterated,
and the President, General Flores, decreed its incorporation with
Ecuador on the 20th of December, considering: 1st, that the up
rising at the capital of the Department of Cauca in favor of its
aggregation to the State of Ecuador is an expression of the general
will of those inhabitants, manifested in the minutes of the proceed
ings held on the 28th ultimo * * *; and, 2nd, that it is not
possible to ignore the votes of a people who manifest the same
political beliefs that are held by the State of Ecuador, and to which
that people is intimately bound by ties of like sentiment, by mutual
interests, by close relations and by other motives of most powerful
influence " (D. M. P., No. 27).
The Ecuadorian Congress, in its decree of the 7th of November,
1831, enacted that the Department of Cauca form an integral part
of the State from the moment of its incorporation. The Colombian
convention, by its act of the 21st of November of the same year,
whereby the State of New Granada was erected, provided that its
southern boundaries "should be definitively established south of the
province of Pasto, as soon as a determination should be reached as
to the most advantageous course to be pursued with respect to the
Departments of Ecuador, Azuay and Guayaquil." That is to say,
New Granada did not recognize the incorporation of the Department
of Cauca in Ecuador ; nor, by the same token, did she recognize the
existence of that State.
The neo-Granadan convention, however, afterwards recognized
the State of Ecuador by its act of February 10, 1832, and in the
constitution of March 1st, but referred, in those enactments, only
to the three departments. The Ecuadorian Congress, on the 13th
of October, recognized in its turn the State of New Granada, as
also that of Venezuela.
Finally, New Granada and Ecuador put an end to their differ
ences by the treaty of peace of the 8th of December, 1832, recog
nizing each other definitively as independent States and stipulating
that their boundaries should be those which, conformably to the
Colombian act of June 25th, 1824, separated the provinces of the
old Ecuadorian Department of Cauca ; the provinces of Pasto and
Buenaventura were in consequence incorporated in New Granada,
and, in Ecuador, the towns south of the river Carchi, a line estab
lished by Article 22 of the aforementioned act between the prov
inces of Pasto and Imbabura.

241
§111. The State of Peru.
i) Peru was Already Established at the Birth of Ecuador;
Provinces of which it was, and Continued to be, Composed.—
In May, 1830, when the southern provinces of Colombia declared
tliemselves independent and voluntarily united to form the new
State of Ecuador, the State of Peru was composed of the provinces
of which it had before been constituted, among them Jaen, Tumbes
and Maynas. Their possession, as we have seen, Peru had constant
ly retained throughout the existence of Colombia, and, during the
war she had carried on with that republic, they ranged themselves
on the side of the former, and the treaty of 1829 respected her
possession thereof, leaving pending only the question of their delimi
tation. The birth of Ecuador did not alter the possessory status. The
fact that those provinces did not adhere to its formation, the fact
that they were not even convoked by the Ecuadorian Government
to participate in her constitution, as well as the fact they had been
represented in the Peruvian Congress when, without them, Ecuador
was recognized as a State, abundantly indicates that all doubt
whether Ecuador respected, and the provinces in question confirmed,
the status quo was allayed. And to this day they have continued to
be integral parts of Peru, under her government and administration,
sharing all vicissitudes, favorable and adverse, of the Peruvian na
tion. 2) Maynas (Loreto and Amazonas). — The Constitution of
Peru of 1828 was published and sworn to in the province of May
nas, as shown in the official communications addressed by the au
thorities of the towns to the subprefect of that province (D. M. P.,
No. 137).
Conformably to that constitution, there occurred on tbe 13th of
October, 1828, in "the city of Santiago de los Valles de Moyobamba,
capital of the province of Moyobamba," the election of four alter
nate senators attributable to that province (D. M. P., No. 136).
The Peruvian act of July 29, 1831, provided that the Bishopric
of Maynas, preserving its ancient demarcation, should be known as
Chachapoyas, and be augmented besides by the province of ti.ac
name, as well as that of Pataz, which belonged to the See of Trujilh ¦
The canonical proceeding having been instituted in accordance wnh
tbe law, His Holiness, Gregory XVI, issued, in 1843, the bull creat
ing the Bishopric of Chachapoyas assigning thereto "all those plaos

242
that have constituted until the present time the territory and diocese
of Maynas," in addition to the provinces of Chachapoyas and Pataz
(D. M. P., No. 105). The Pope, therefore, recognized the rights
of Peru over all the territory of Maynas.
On the 23rd of October, 1851, Peru entered into a treaty with
Brazil, the 7th Article of which, accepting the principle of uti
possidetis, established, as the frontier "the town of Tabatinga, and
from thence a straight line running north to a point opposite the
confluence of the Yapura river with the Apaporis, and from Ta
batinga, southward along the Yavari river from its confluence with
the Amazonas." Subsequently Brazil also recognized Peru's rights
in the Amazonas region.
After the creation, in 1832, of the Peruvian Department of the
Amazonas, in which was included the ancient Comandancia general
of Maynas, the greater part of the territory of that comandancia
was segregated in 1853 to form the military and political govern
ment of Loreto. Therefore, that which had been the Gobierno and
Comandancia general of Maynas is today the Peruvian Department
of Loreto and part of the Department of the Amazonas, which is
also Peruvian.
When the Garcia-Herrera treaty of 1890 was debated in the
Peruvian Congress, the twelve representatives from Loreto pro
tested against the cession of any part of their territory (M. P., vol.
IV, p. 151).
Ecuador had for a long time maintained a consul at Iquitos, the
capital of the Department of. Loreto, and an important city situated
north of the Amazonas river. By virtue of a note from her Chan
cellery communicating the fact of the extinguishment of that con
sulate, the chancellery of Peru, in September, 1905, took steps to
cancel the exequatur issued to the person who had been acting there
under (M. P., vol. IV, p. 123).
3) Province of Jaen. — When in June, 1828, hostilities between
Colombia and Peru were on the point of breaking out, the Prefect
of the Department of La Libertad (Trujillo) ordered the Subprefect
of the province of Jaen to maintain surveillance over the agents
whom Bolivar might send to spy upon the military movements or
bring discord into the country (D. M. P., No. 166). Jaen, having
fought by the side of Peru from the beginning of the war of inde
pendence, continued jn the union w,ith her throughout the struggle
with Colombia.

243
The southern provinces separated from Colombia and united in
May, 1830, to form Ecuador ; and Jaen, far from taking part in that
movement, elected the deputy who was to represent her in the
Peruvian Congress, which body approved its proceeding in the elec
toral junta on the 6th of November of the same year (D. M. P.,
No. 163).
And, more than this, the residents of the city of Jaen in the as
sembly to which representatives were sent by the various towns,
and which was held on the 10th of October, 1830, made known,
with expressions of great enthusiasm, their desire to continue their
union with, Peru, "whose constitution, laws and regulations they
have voluntarily embraced and obeyed until the present, and pro
test anew their determination to embrace and obey them in the
future." And the same declaration was made at that time by the
towns of Pimpinco, Callayuc, Chirinos and Cujillo (D. M. P., No.
168). On the creation in 1854 of the Department of Cajamarca by
segregation from the Department of Trujillo, or La Libertad, the
province of Jaen was included in that department and continued
therein. 4) The Littoral Province of Tumbes. — The town of Tumbes,
on the 13th of June, 1828, swore to, and acclaimed with equal en
thusiasm, the Peruvian constitution of that year (D. M. P., vol.
VI, No. 201 ; plates IV to VI).
On the 31st of March, 1830, the municipality of Tumbes unani
mously resolved, in the minute of that day, that that town was the
one which had suffered most in the war with Colombia and that it
had contributed to the defence of Peru, standing upon those merits
and the general will of the citizens for its protest against the idea
that, by virtue of the treaty of 1829, its territory should be cede^to
Colombia, for the entire populace wished to continue living in the
country of their birth, and "to belong to no other" (D. M. P., vol.
VI, No. 202; plates VII to X).
By the act of March 30, 1861, the littoral province of Piura was
converted into the department of that name, composed of eight
provinces; one of them was that of Paita, among the districts of
which was Tumbes (D. M. P., No. 207).
The act of January 12, 1871, erected the district of Tumbes into
a province of the Department of Piura, dividing it into four dis
tricts: 1st, the District of Tumbes, composed of the town of that

244
name, the capital of the province, and the settlements of Pampa
Grande, Pedregal, Bebedero, La Playa, Isla de Palo Santo and Rio
Viejo, as far as Comagua; 2d, the District of Corrales, composed of
the community of La Rinconada and the plantations of Platera and
Mancora, as far as the ravine of that name ; 3d, the District of San
Juan de la Virgen, composed of the town of Mal Paso, the Tumbes
river and the settlements of Nacural, Cerro Blanco, Hospital, La
Pena and the plantation of Cabuyal, and, 4th, the District of Zaru
milla, composed of the circumscriptions of Papayal, Lubayal and
La Palma. The boundaries of the province were designated as being
the same as those separating the districts of which it was com
posed from the neighboring provinces. Each district had its own
municipality (D. M. P., Nos. 208 and 209).
The act of December 20, 1901, raised the province of Tumbes
"to the rank of littoral province, with the boundaries and districts
already possessed," a category similar to that of a department. It
shall have, the act provides, a prefect, a departmental treasurer and
a judge of first instance (D. M. P., No. 210).
The Government of Peru has enacted numerous measures for the
administration and advancement of that province, relating to the
organization of the police department, telegraph lines, port works,
irrigation, commercial franchises, mines, etc. (D. M. P., Nos. 211
to 224.)

CHAPTER VII.
Peru's Treaties and Relations with Ecuador.
Summary:
I. Treaty of Lima (amity and alliance), 1832.— 1. Peru's first relations
with Ecuador.— 2. Negotiation of the treaty of 1832 ; preliminary
statements by the Ecuadorian Plenipotentiary.— 3. Tenor and
ratifications of the treaty (of amity and alliance). — 4. Importance
of that treaty to the present question: a) confirmation of the
caducity or nullification of the treaty of 1829; b) recognition of
the possessory, status.
II. Relations between Peru and Ecuador from 1833 to 1857.— 1. Attempts
to settle the boundaries (1840-2): a) diplomatic notes of 1840;
b) Valdivieso-Leon conferences of 1841 ; c) Charun-Daste con
ference of 1842.— 2. Confirmation in 1846 of the treaty of 1832.—
3. Mutual demands in 1853 respecting Maynas : a) Peruvian
enactment creating the Government of Loreto; b) measure be
fore the Ecuadorian Congress concerning the navigation of the
Amazonian rivers.
III. Treaty of peace and amity of 1860 (not ratified). — 1. Ecuador's agree
ment of 1857 concerning the cession of territory in settlement of
her foreign indebtedness; military occupation of Guayaquil
(1858).— 2. Object and tenor of the treaty of 1860, known as the
treaty of Mapacingue. — 3. Its references to the Royal Decree of
1802 and to the treaty of 1829. — 4. Legislative disapproval of the
treaty; declarations of the Peruvian Congress. — 5. Ecuadorian
act of 1861 relating to territorial division.
IV. Arbitral convention of 1887 and the direct negotiations. — 1. Negotia
tion of that convention. — 2. Garcia-Herrera compromise of 1890
(disapproved).-^. Supplemental arbitral convention of 1894 (not
latified).
V. Resume of the boundary question from 1830 to 1904.
§1. Treaty of Lima (Amity and Alli
ance), 1832.
i) Peru's First Relations with Ecuador. — The relations be
tween Peru and Ecuador began under the most favorable auspices.
While the Bogota Government withheld its recognition of the new
State, Peru tendered hers at once, receiving its representative with
much cordiality.
On the 26th of September, 1831, D. Diego Novoa presented him
self officially at Lima as Charge d'affaires of the State of Ecuador,
which, he announced, having been formed by the will of the towns

246
composing the southern departments of Colombia, and constituted
by the Riobamba convention of 1830, desired to maintain with. Peru
that intimate friendship which ought to unite states so closely
identified in interests. The President of Peru expressed the satis
faction he felt in recognizing the envoy who first made heard in
the Republic of Peru the voice of Ecuador, adding that good under
standing between two contiguous nations is the most solid basis
for their mutual happiness (D. M. P., No. 28).
On the 20th of September, before that presentation took place,
the Peruvian Government had addressed a note to Ecuador request
ing an explanation of the action of the Bishop of Quito in appoint
ing a Prefect of Missions in Maynas. In its note of the 7th of No
vember, the Ecuadorian Government complied, attributing the ap
pointment to an excess of zeal on the part of the Bishop and ex
plaining that the missionaries had been cautioned to respect the
Peruvian authorities, without prejudice, however, to the question of
boundaries, which were to be adjusted by a special treaty (D. B. P.,
Nos. 14 and 15). Ecuador, then, did not believe that the boun
daries had already been settled by the treaty of 1829, and that that
instrument could be invoked in her favor.
2) Negotiation of the Treaty of 1832; Preliminary State
ments by the Ecuadorian Plenipotentiary. — Being invested with
the requisite power for the negotiation of treaties with Peru, Novoa
repeatedly made known the desire of his government to negotiate,
as shown by his notes of January 6th, February 24th and 27th,
May 14th and June 5, 1832. The Peruvian Minister, Pando, pro
crastinated in his dealing with the matter until, in his note of the
16th, he was obliged to say that "the Peruvian Government, con
sidering the uncertainty still prevailing as to the bonds uniting it
with the three sections into which the Colombian republic had been
divided, and bearing in mind that Colombia had entered into com
mercial agreements with certain foreign powers under the most
favored nation clause," was apprehensive lest any treaties she might
negotiate with Ecuador should prove vain and illusory.
The Ecuadorian Plenipotentiary rejoined in his note of the
18th of June, making the following important statements: "The
bonds which, perhaps in the future, may unite the three sections, can
never be tied with disgrace or dishonor to the constitutional charter
of Ecuador, or to those of the other States. By virtue of their con
stitutions each of the States is possessed of authority, expressly con-

247
ferred, to negotiate treaties of amity, alliance and commerce with
nations. * * * If Colombia, united, obligated herself in treaties
that have brought ruin to the people ; if Colombia made laws inimical
to the -welfare of her subjects, in a certain way placing about their
necks a chain more burdensome than that under which they for
merly dragged out their existence, those are the evils and arbitrary
acts of which they have energetically rid themselves by the annul
ment of a compact, violent and destructive. And that compact
annulled (that of the union of those States), and Colombia dissolved,
powerless to give them happiness, could any one claim that the
agreements she made could still have any force and effect, much
less since they are opposed to the happiness of those peoples ?" He
then proceeds to discuss the agreements on the assumption that
they were nevertheless valid, or that they might be confirmed by
the new States (D. M. P., No. 30).
In this manner the Plenipotentiary of Ecuador casts aside the
Colombian treaties, without excepting that of 1829, holding them to
be of no value since the dissolution, unless they should be confirmed
by the new States, and leaving clean the slate for new agreements,
free from all obstacle*.
3) Tenor and' Ratifications of the Treaty (of Amity and Alli
ance). — In consequence of those negotiations, the Plenipotentiaries
of Peru and Ecuador signed at Lima, on the 12th of June, 1832,
two treaties : one of amity and alliance and the other of commerce.
The treaty of amity and alliance contains the variety of stipula
tions usually found in international agreements of that class.
• Article 14th provides: "While negotiating a convention for the
adjustment of boundaries between the two States, the present boun
daries shall be recognized."
Article 15th reserves the liquidation of the indebtedness between
the two republics for consideration when "this matter may "fie defi
nitely adjusted between Ecuador and the other Colombian States"
(D. B. P., No. 16). ^
The importance of that treaty to Peru, in its bearing on the
question of boundaries induces the defence for Ecuador to maintain
that it is faulty through the absence of an exchange of ratifications
"inasmuch as it prescinded from the legal basis set up in 1829
* * * and accepted, at least provisionally, the possessory basis"
(Memorial of Ecuador — Memoria del Ecuador — 1892, p. 164).
But the act of exchanging ratifications is one thing, and another,

248
very different, is the reason justifying the belief of Ecuador's de
fence that she should not have authorized the exchange. And that
the ratifications were exchanged, and that the treaty is perfectly
valid, are facts as to which there can be no manner of doubt.
The Congress of Ecuador ratified both treaties, that of amity and
that of commerce, on the 13th of October, 1832. On that very
day the Plenipotentiary, Novoa, wrote from Quito to the Peruvian
Minister informing him that his government had authorized the
Consul at Lima, Elizalde, to make the exchange; and on the 14th
the Ecuadorian Minister of State advised the Minister of State of
Peru that the government and the congress had ratified the treaties,
entrusting the exchange to Consul Elizalde in the absence of the
Plenipotentiary (D. M. P., No. 30). Consul Elizalde writes, on the
6th of December, that he has already received the documents and
desires, as soon as possible, to make the exchange (D. M. P., vol.
VII, app. 10).
The Peruvian Congress ratified the treaties on the 22d of Decem
ber, 1832 (ibid).
The exchange of ratifications was effected on the 27th, as the
Ecuadorian Minister and Plenipotentiary Novoa were advised by
the Peruvian Minister on that same date (D. M. P., No. 30, and
app. 10). On the 13th of March, 1833, the Ecuadorian Minister
replied, acknowledging receipt of the ratified treaties and submitting
certain observations on the subject of commercial reform, not,
however, in any way related to the treaty of amity and alliance
(D. M. P., No. 31).
The originals of the treaties of 1832 having been mislaid in the
archives of the Ecuadorian Ministry of Foreign Relations, an au
thenticated copy was taken from the exemplifications in the Peru
vian Ministry, by agreement of both governments, on the 26th of
March, 1846. Bv the same instrument they agreed to put into
execution the stipulations in those treaties, with certain explana
tory additions having no reference whatever to the question of
boundaries; treaties which, as was set forth, by the President of
the Republic of Ecuador on signing the agreement, "were ap
proved, ratified ahd exchanged in accordance with the constitution"
(D. M. P., vol. VII, app. 10, p. 315, and plates III to V).
4) Importance of that Treaty to the Present Question. — The
treaty of amity of July 12, 1832 — the only one negotiated with re
spect to boundaries from the birth of the State of Ecuador down

249
to the treaty of arbitration of 1887, and now existing — is of the
highest importance to the present question, having annulled the
treaty -with Colombia of 1829, or confirmed its caducity, and recog
nized although provisionally, the possessory status as of the year
1832, the year in which it was signed.
a') Confirmation of the caducity or nullification of the treaty of
1829. — The two questions requiring mention of the treaty of 1829
as having been in force — the settlement of boundaries and the
liquidation of Peru's indebtedness to Colombia — were deferred by
the treaty of 1832, without the slightest reference being made to
the old treaty; with the difference, however, that, while the ques
tion of indebtedness was left pending until after the States arising
out of the old Colombian confederation should place themselves in
accord, the question of boundaries between Ecuador and Peru was
left for a special convention between those States, without any allu
sion whatever to Colombia.
Article 14th of the treaty of 1832 states positively that : "While
a convention is being negotiated for the settlement of boundaries
between the two States, the present boundaries shall be recognized
and respected."
That was as much as to say that there was in existence no agree
ment as to boundaries ; that the contracting parties could do as they
pleased in that regard, and that, until the settlement should be
made, they agreed to preserve the boundaries they then possessed.
That article is the confirmation of the caducity of the treaty of
1829, or, indeed, its absolute nullification.
The caducity was recognized, as we have sgea, by the Pleni
potentiary of Ecuador, Novoa, in his note of June 18th, while the
negotiations were pending, and before the treaty of 1832 was finally
drafted. He claimed for Ecuador the power to treat as an inde
pendent State in accordance with her constitution, and indignantly
exclaimed : "Colombia is dissolved ; the union is broken up. Could
any one claim that agreements made by Colombia could have any
z/alue whatever f That is, nevertheless, what Ecuador nozv claims
in invoking the treaty of 1829 as being in force. Even though she
should wish to repudiate the declaration of her then Plenipotentiary,
the fact would remain that the treaty of 1832, by its failure to men
tion it, held the treaty of 1829 to be a dead letter, and proceeded
as if it were not in existence.
Even if we assume that the treaty of 1829 did not lapse by the

250
dissolution of Columbia, the indubitable fact remains that, in the
exercise of her sovereignty as an independent State, having the
power freely to contract with other States, Ecuador nullified that
treaty, and superseded it by another. The defence for Ecuador
practically confesses its annulment when it says that the treaty of
1832 was not ratified because it prescinded from the legal basis
of 1829, and, at least provisionally, substituted for that basis the
possessory status. It is thus that it was ratified. Later one basis
was substituted for another, and consequently the earlier one was
annulled by the latter.
Whatever may be the difference between the two treaties, and
however subtle may be the reasoning in support of the stability of
the treaty of 1829, it cannot be denied that Ecuador possessed the
right to agree with Peru as to her boundaries, and that she exer
cised that right, accepting the present boundaries until the matter
should be definitely settled by a special convention, as to which
she imposed no precedent, basis, proceeding or condition of any
kind. For one reason or another, then, under the principles of inter
national law, the treaty of 1832 came to supplant that of 1829, and
the latter remained only an historical reminiscence.
b) Recognition of the possessory status. — "While a convention
is being negotiated for the settlement of boundaries between the two
States," says the treaty of 1832, "the present boundaries shall be
recognized and respected."
What were the boundaries at that time with reference to the
question? Those possessed by the provinces of Tumbes, Maynas
and Jaen which formed part of State of Peru, and which were pos
sessed and governed thereby, as shown in the preceding chapters.
Could the convention for the settlement of boundaries — reserved
for later negotiation — effect a transfer of those provinces from Peru
to Ecuador? That would be to assume that the States had agreed
to a possible dismemberment of the State of Peru, an assumption
incompatible with the very spirit of the treaty, which was, before
everything, a treaty of recognition of both States as they were made
up and constituted; and, under such an interpretation, it surely
would not have been accepted by the representatives of those prov
inces in the Peruvian Congress by which it was ratified — provinces
that most certainly were not, and could not have been, convoked
for the formation and constitution of the State of Ecuador. It is

251
to be noted that when Ecuador was born, Peru had already passed
ten years of her existence and had been recognized, as she was then
constituted, by Colombia herself. Ecuador recognized the State
already existing. Peru would not have recognized the new State,
which she was under no obligation to recognize, at the cost of the
segregation of her provinces.
The treaty of 1832 preserved, therefore, the possessory status,
as well with respect to the territories of which the contracting
States were composed, as with respect to their frontier boundaries ;
the final adjustment was left, for an indefinite period, to xt special
convention.
§11. Relations Between Peru and Ecua
dor From 1833 to 1857.
i) Attempts to Settle the Boundaries (1840-2),
a) Diplomatic notes of 1840. — Nothing of any particular im
portance occurred in the boundary dispute from 1832 until July,
1840, when the Gaceta of New Granada, pubhshed a note from
the Ecuadorian government, stating that public opinion de
manded "the peremptory fixing of the northern and south
ern boundaries." The Peruvian Minister of Foreign Rela
tions on the 2d of November, addressed a note to the Ecuadorian
Minister of Foreign Relations, stating that his government was not
opposed to entering into negotiations from that point of view.
"Ecuador and Peru," he said, "are reaping the benefit of peace. The
boundaries in America, where patrimonial rights no longer exist,
can be fixed only by virtue of the rule of uti possidetis with relation
to the time of the byrth oi the new republics."
The Ecuadorian Minister replied by a note of the 16th of De
cember, asking whether Peru were disposed to fulfil the stipula
tions in the treaty of Guayaquil; to which Peru replied that the
treaty in force was that of 1832, approved and ratified by both gov
ernments and congresses (D. M. P., vol. VII,' p. 309).
Here we have the first tentative put forth by Ecuador to resus
citate the treaty of 1829, as well as the firm position, assumed bv
Peru, invoking the treaty of 1832, which had replaced the earlier
one, and referring to the uti possidetis at the time of the birth of the
new republics, for the adjustment of the boundaries.
b) Valdivieso-Leon conferences of 1841. — This disparity in the
points of view manifested itself in the conferences held at Quito in

252
December, 1841, between the Plenipotentiaries of Ecuador and Peru,
Valdivieso and Leon, charged with the negotiation of Such treaties
as might be most appropriate for the purpose of insuring, on solid
foundations, the good relations between the two States.
The question of boundaries was taken up at the second confer
ence. Valdivieso, the Ecuadorian Plenipotentiary, proposed the fol
lowing article: "The contracting parties recognize, as the boun
daries of their respective territories, the same that were possessed,
before their independence, by the ancient Viceroyalties of New
Granada and Peru, the provinces of Jaen and Maynas to be in con
sequence restored to the Republic of Ecuador, with the same boun
daries that confined them when they were in .the possession of the
Presidency and Audiencia of Quito, without prejudice to negotia
tion by convention of reciprocal cessions and compensations of
territory by the two States. * * * "
That was the first time, in a proposal for an agreement, that men
tion was made of the restoration of those two provinces by Peru —
the treaty of 1829 not having gone that far — and the principle was
revived on the assumption of Ecuador's right to resuscitate the
Presidency of Quito in absolute disregard of all that had transpired,
and doubtless in an effort to bring about the realization of Bolivar's
scheme to "threaten Jaen in order to obtain Maynas:" to this end,
then, being possessed- of Guayaquil, the scheme of reciprocal "con
cessions and compensations" was suggested ; no reference was made
to the small parcels oi" territory to which the treaty of 1829 had
been limited.
The Plenipotentiary of Peru, Leon, replying, agreed at once
that the boundaries of the American republics should be deter
mined by the uti possidetis of the time of the Spaniards, but that
it is not established that it should be the uti possidetis accepted by
those republics prior to the struggle for independence, that re
lating to the period subsequent to the independence being the
safer ; that the towns claimed by Ecuador have remained to form a
nation with Peru, appointing their deputies and recognizing the
judges and magistrates designated for their government and guid
ance ; that it has always been evident that the province of Maynas
was a dependency of the Viceroy of Lima, and that, by the prin
ciple of uti possidetis as proposed, Peru could also claim Guay
aquil. At ;hc third conference the Ecuadorian Plenipotentiary proposed

253
a divisionary line similar in form to the one proposed by the Colom
bian government in the instructions to its Commissioners for carrying
into effect the treaty of 1829, although without allusion to Tumbes.
The Plenipotentiary of Peru opposed that line on the ground that
the treaty of 1829 had lapsed with the dissolution of Colombia
befofe the Commissioners had concluded, or even commenced, the
operations for the adjustment of the boundaries (D. B. P., No.
17). The discussion having become acrimonious to a point at which the
Plenipotentiary of Peru retired, highly indignant over the insults
he professed to have received, the conferees did not arrive at an
understanding on that question or on others of greater political
concern. c) The Charun-Daste Conference of 1842. — The Governments
of Peru and Ecuador, desirous of extricating themselves from the
difficult situation resulting from that incident, agreed to a new
conference. For that purpose Ecuador sent to Lima, as her Pleni
potentiary, General Daste, and Peru designated her Minister of
State, D. Guillermo Charun. At their meeting on the 13th of April,
1842, General Daste set forth the complaints of his government in
terms of much violence, demanding "as a prerequisite to any set
tlement, that they Should stipulate for the immediate restitution
of the provinces of Jaen and Maynas, the only means by which
the affront could be wiped out." In the face of such a demand the
negotiations were broken off and the friendship between the two
governments terminated. The Plenipotentiary of Ecuador entered
into no discussion but imposed the restitution as a condition and
only succeeded in adding one more proof that Peru continued ir.
possession of Jaen and Maynas (D. B. P., No. 18).
2) Confirmation, in 1846, of the Treaty of 1832.— On the 26th
of March, 1846, the Ecuadorian Minister of Foreign Relations and
the Charge d'affaires of Peru met at Quito, and, after agreeing
on the form for the authentication of a copy of the treaties of 1832
to take the place of the originals missing from the archives of the
Ecuadorian Ministry of Foreign Relations, agreed to make certain
clarifying alterations in those treaties, rendered necessary by the
events that had taken place. Those amendments related principally
to the commercial treaty and one only pertained to the treaty of
amity and alliance; the article dealing with the boundaries was
left intact.

254
The President of the Republic of Ecuador, D. Vicente Ramon
Roca, confirmed and approved the plan agreed upon for the execu
tion of the articles referred to "in the treaties of alliance, peace,
amity and commerce entered into between this republic and that of
Peru through the medium of the proper ministers, and that they
be approved, ratified and exchanged in accordance with the con
stitution" (D. M. P., vol. VII, p. 314).
3) Mutual Demands in 1853 Respecting Maynas.
a) Peruvian enactment creating the Government of Loreto.* —
By act of March 10, 1853, the Government of Peru "erects within
the frontiers of Loreto a political and military government, inde
pendent of the Prefecture of the Amazonas, including therein the
borders of the Amazonas and Maranon, from the boundaries of
Brazil, and all the territories and missions located south and north of
said rivers, in accordance with the principle of uti possidetis
adopted by the American republics to which the Royal Decree of
July 15, 1802, in a measure serves as a standard, and the rivers
emptying into the Maranon, especially the Huallaga, Santiago, Mo
rona, Pastaza, Putumayo, Yapura, Ucayali, Napo, Yavary and
others, together with their borders, in conformity with and as they
are embraced in said Royal Decree." So reads the enactment.
Against it the Ecuadorian Plenipotentiary protested. The Peru
vian Minister answered that his object had been to bring under
a special government "all that territory which by lazv and possession
belongs to Peru," under authority of the Royal Decree of 1802, and
the principle of the uti possidetis of 1810 adopted by the Spanish-
American republics, leaving it for special agreements to establish
the courses of the divisionary lines (D. B. P., No. 20).
b) Measure before the Ecuadorian Congress concerning the navi
gation of the Amazonian rivers. — On the 10th of November, 1853,
the Plenipotentiary of Peru at Quito protested against a bill brought
before the House of Representatives, the first article of which pro
vided: "Freedom of navigation is declared on the Chinchipe, San
tiago, Morona, Pastaza, Tigre, Curaray, Naucana, Napo, Putumayo
and other Ecuadorian rivers descending to die Amazonas."
The Peruvian representative based his protest on the fact that
those rivers were not Ecuadorian but belonged to Peru by virtue
of the Royal Decree of 1802, the principle of the uti possidetis of
1810 and an uninterrupted series of acts indicative of jurisdiction
and possession.

255
The Ecuadorian Minister of Foreign Relations replied on the
9th of February, 1854, stating that the Royal Decree of 1802 "had
been possessed of no legal force, that it had not been put into
execution and ought not to have been fulfilled," as would soon be
made clear along with other facts in the conferences about to be
held for the amicable and definitive settlement of the question of
boundaries (D. B. P., Nos. 21 and 22).
The fears entertained by Mosquera, the Colombian Plenipoten
tiary who had been charged with the execution of the treaty of
1829, lest, when he was preparing to lay claim to Maynas, the Royal
Decree of 1802, thought to have been burned, should be brought
into the case, had been realized. And Ecuador, who with
such violence had demanded the immediate restoration of Maynas,
and had made disposition thereof, theoretically, in her enactments
as her own possession, was only able to answer Peru's protest by
saying that the Royal Decree was lacking in legal force and had hot
been observed.
§111. Treaty of Peace and Amity of 1860
(Not Ratified).
i) Ecuador's Agreement of 1857 Concerning the Cession of
Territory in Settlement of Her Foreign Indebtedness; Military
Occupation of Guayaquil (1858). — Matters continued as they were
under the treaty of 1832 until on the 21st of September, 1857, it
occurred to Ecuador to enter into an agreement with the British
holders of her foreign obligations, by which she was to make over
to them "one million quarter sections in the Canton of Canelos
in the eastern province on the banks of the Bobonaza river, reck
oned from the point of confluence of that river with the Pastaza
towards the west, at four reales* per quarter section."
The Peruvian Plenipotentiary protested against that agreement
on the 11th of November, claiming that all of those lands belonged
to Peru : 1st, by authority of the Royal Decree of 1802, a Spanish
law; 2d, by reason of the principle of uti possidetis adopted as of
1810, and, 3d, as a result of the series of acts of jurisdiction and
possession on the part of the Peruvian Government in those local
ities.

*The Real, at that period in Spanish-America, was worth about ten cents,
gold.

256
The Ecuadorian Minister of Foreign Relations replied on the
30th of November, defending Ecuador's right in the matter on
the ground that the Royal Decree of 1802 was of no effect, and that,
consequently, there remained united with the province of Quito
all of that immense expanse, the addition of which to the Vice-
royalty of Lima had been attempted, and on the further ground of
the application of the "uti possidetis oi 1810, recognized by all the
South American States, and among them Peru, in Article 5th of the
treaty of 1829." Ecuador then interpreted that article as meaning
the uti possidetis of 1810, not as she now interprets it, after it has
been fully established that the Royal Decree was possessed of legal
force and had been carried into effect.
The Peruvian Plenipotentiary rejoined at great length on the
9th of March, 1858, resting upon precisely that uti possidetis of
1810, "that which was adopted by all the republics of Spanish
origin, that being the year in which their independence was, gen
erally speaking, realized," a principle presupposing legality of titles,
and to which, in this case, is added the will of tbe emancipated
peoples. The Government of Peru made its protests known to the repre
sentatives of Great Britain and the United States. From the for
mer it obtained the assurance that "the government of her Brit
annic Majesty has no part whatever, or any interest, in the cession
of lands to the English creditors" and regarded the contracts they
had made with Ecuador as merely private agreement^ ; and from the
United States Peru secured the promise that the North American
Government "would enter into no treaty or arrangement with that
of Ecuador with respect to the acquisition of lands and the free
navigation of rivers descending into the Upper Amazonas until the
question as to boundaries between Peru and Ecuador should be
definitively concluded" (D. B. P., Nos. 23, 24 and 25; D. M. P.,
vol. VII, app. No. 11).
The tenseness in the relations between the two governments in
creased until war broke out in 1858. Peru held Guayaquil by mili-
taiy occupation, and, for the purpose of releasing th.it port from
such occupation and to re-establish peace, the preliminary con
vention of December 4, 1859, was signed and followed later by the
definitive trenty of 1860.
2) Objee» and Tenor of the Treaty of 1860, Known as the
Treaty of Mapacingue. — The treaty of peace and an, ity signed at

257
Guayaquil on the 25th of January, 1860, usually referred to as the
treaty of Mapacingue, had for its object, as set forth in its preamble,
the amicable composition by the two republics of their past differ
ences, the resolution of pending questions and the settlement for
ever of the principles of their international rights.
The treaty affirms, in its first article, that the "relations of peace,
amity, harmony and good understanding" are re-established be
tween the two countries ; and, after making various declarations by
way of amends for past occurrenceSi the question of boundaries is
taken up in the following terms :
"Art. 5th. The Government of Ecuador, mindful of the value
of the documents submitted by the Peruvian negotiator, among
which the Royal Decree of July 15, 1802, figures as the one of most
importance in support of the right of Peru to the territories of
Quijos and Canelos, declares null and of no effect the adjudication
oi any part of those lands to the British creditors, and that those
creditors shall be indemnified with other territories, exclusively and
indisputably the property of Ecuador.
"Art. 6th. The Governments of Ecuador and Peru agree to ad
just the boundaries of their respective territories, and to appoint,
within a period of two years, to be reckoned from the exchange of
ratifications of the present treaty, a mixed commission which shall
fix, in accordance with the observations made and the evi
dence brought before them by both parties, the boundaries of the
two republics. In the meanwhile those republics accept, as such
boundaries, those which are governed by the uti possidetis recog
nized in article 5th of the treaty of September 22, 1829, between
Colombia and Peru, and which were possessed by the Viceroyalties
of Peru and Santa Fe conformably to the Royal Decree of July
15, 1802.
"Art. 7th. Notwithstanding the stipulations in the two> preced
ing articles, Ecuador reserves the right to substantiate, within the
peremptory term of two years.her rights over fhe territories of Quijos
and Canelos, at the end of which term, if Ecuador shall have failed
to produce evidence sufficient to overcome and nullify the evidence
submitted by the Plenipotentiary of Peru, Ecuador's rights shall
be deemed to have lapsed and the rights of Peru over those terri
tories shall become absolute."
That treaty, in its 31st article, nullified all treaties previously en
tered into by Peru with Ecuador, whether with the latter "as a di
vision of the old Republic of Colombia or as an independent re
public."

258
It was agreed, lastly, that the treaty should be operath'e from
the time of its ratification by the Chief Executives of the two re
publics, without prejudice to its subsequent constitutional approval,
at the proper time by the legislative bodies (D. B. P., No. 26).
3) Its References to the Royal Decree of 1802 and to the Treaty
of 1829. — With respect to the question of boundaries, the treaty of
1860 may be summarized as follows: 1st, annulment of the adju
dication of the Maynas lands which had been the cause of the war ;
2d, recognition of the Royal Decree of 1802, by virtue of which
the annulment was made; 3d, rectification of the boundaries be
tween the two republics by means of a mixed commission ; 4th, pro
visional acceptance of the boundaries derived from the uti possidetis
of the treaty of 1829, conformably to said Royal Decree, and, 5th,
reservation by Ecuador of the right to justify her claims over
Quijos and Canelos within the period of two years.
As may be seen, Ecuador bows her head before the Royal Decree
of 1802, which formerly she had rejected. And, as far as the
treaty of 1829 is concerned, it was not invoked by the treaty of 1860
as being in force but merely in connection with the provisional
acceptance of the basis of the viceroyalties, just as the parties could
have adopted any other basis, and the basis of the viceroyalties
was therein interpreted in the sense that the Royal Decree of
1802 conformed therewith, according to which all the territories of
Maynas belonged to Peru.
4) Legislative Disapproval of the Treaty ; Declarations of the
Peruvian Congress. — Although the treaty of 1860 was ratified by
the President of Peru, General Castilla, and by General Franco, the
Chief Executive of Ecuador, it remained subject to the approval
of the respective Congresses.
General Franco being deposed from power, a convention for the
reconstitution of the country assembled at Quito. That body re
jected the treaty and its approval was also denied by the Peruvian
Congress by its act of January 27, 1863.
A committee of the Peruvian Congress rendered an opinion
approved by that body in rejecting the treaty, that when the agree
ment was entered into by Ecuador she possessed no centralized
government ; that the Ecuadorian representative was endowed with
no more powers than were possessed by the government of Guayas,
one of the several governments existing in that country; that Gen
eral Franco was merely the head of a party or faction; that the

259
convention and general government of Ecuador had disapproved
the treaty, and that Peru should reject it also because of the fact
that' it contained stipulations repugnant to her sense of honor and
prejudicial to her rights.
When the Peruvian forces arrived on the coast of Ecuador for
the purpose of exacting the satisfaction due her for the outrages to
which she had been subjected, the committee says, they found a
country in the throes of anarchy, with several different governments
struggling among themselves, and satisfaction given by a partial
government, such as that of Guayas, is not sufficient reparation for
outrages suffered at the hands of a general government.
"Another and less important cause of the war," the committee
adds, "was the exaction from Ecuador of the recognition of Peru's
rights to the territories of Quijos, Canelos and others, which had
been aggregated by the Royal Decree of 1802. Was that object
realized ? Undoubtedly not, for in Article 7th of the treaty, the
period of two years was allowed in which to search for and pro
duce evidence. * * * Peru claims no more territory than would
properly be hers under the principle of the uti possidetis of 1810,
a principle which was accepted and recognized by the old Colom
bian republic in article 5th of the treaty of 1829. It remained only
to ascertain what was that uti possidetis, and, once demonstrated
by the documents exhibited by Peru, nothing more remained to be
done than to exact from Ecuador her explicit recognition. The
Royal Decree of 1802 and the documents that go to prove its ex
ecution, which were eventually found in the archives of the ancient
government of Maynas, determined incontrovertibly the justice
of the titles claimed by Peru."
The Congress proceeded with its objections to the other arti
cles of the treaty and resolved in conclusion: "The treaty having
been disapproved by the Government of Peru, as it has been by the
Ecuadorian convention, both countries must return to the status
in which they found themselves in 1858, that is, with a casus belli
but a casus belli easily determinable by the negotiation of a treaty
based upon justice, equity and honor, * * * taking into consid
eration the desires animating the peoples and governments of
Peru and Ecuador to bring to an end for all time their discord * * .*
(D. M. P., No. 38).
5) Ecuadorian Act of 1861, Relating to Territorial Division. —
On the 10th of March, 1861, Ecuador published her new consti-

260
tution, in which it was provided that "the boundaries of the Re
public shall be definitively established by treaties to be entered into
with the boundary States."
But, ignoring the, treaty of 1860, and without waiting for
the* resolution of the Peruvian Congress, or taking into account that
constitutional prerequisite, she enacted the law of May 29, 1861,
concerning the division of territory, and including therein, as be
longing to Ecuador, "lands situate in the Gobierno of Jaen, of the
ancient Kingdom of Quito, the Cantons of Napo and Canelos, the
territories comprising the Gobierno of Quijos as far as the Ama
zonas, in the Kingdom of Quito, and the territory of the Gobierno of
Maynas." The Peruvian Minister of Foreign Relations protested against
that enactment on the 24th of August, reminding Ecuador that one
State had no right to legislate respecting the dominion and prop
erty of another (D. B. P., No. 27).
§IV. Arbitral Convention of 1887 and
the Direct Negotiations.
i) Negotiation of that Convention. — The treaty of 1860 re
jected, the boundary question remained as it was. Peru continued
in tranquil possession of Tumbes, Jaen and Maynas, with the same
boundaries that were recognized in 1832. The two republics with
out entering into new agreements lived in perfect harmony until
1887, when their good relations were again disturbed by the same
matter of the cession of territory arising out of the claim pressed
by the "English Ecuadorian Land Company."
On the 25th of June, 1887, the Peruvian Minister of Foreign
Relations wrote to Ecuador's Plenipotentiary at Lima, stating that,
according to certain communications published in the Diario
Oficial of Quito, his government appeared disposed to. go forward
with the projected agreement of 1857 with the British creditors,
whereby that government ceded, in settlement of the indebtedness,
land situated on the upper Amazonas belonging to Peru, and, as
that action would be a revival of a matter already settled, he trusted
that the Government of Ecuador would suspend its plans for settle
ment with those creditors until it might be known exactly what
were the boundaries of its territory — until in fact the question could
be finally resolved by treaty. The Ecuadorian Plenipotentiary im-

261
mediately replied that he would bring the matter to the attention
of his government, whose response would doubtless be satisfactory,
inspired, as it was, to bind closer "the fraternal ties of good under
standing and loyalty existing between Ecuador and Peru" (D. M.
P., vol. VII, app. 13).
In fact the Government of Ecuador did agree to suspend all
action respecting the Canelos lands, and so notified the English
Company in its official note of July 13, 1887> in which it stated that
that action was the result of a demand on the part of Peru grow
ing out of the fact "that the territories of the two republics had
not been defined," and promising that it would bring about a
delimitation as soon as possible, to which end it would propose
to the Peruvian Government "either the negotiation of a treaty
for the settlement of boundaries, or that the matter be submitted to
the arbitral decision of an impartial government — such, for instance,
as that of Spain" (D. M. P., vol. VII, app. 14).
The governments of the two republics placed themselves effective
ly in accord, whereupon their representatives signed at Quito on the
first of August, 1887, the so-called arbitral convention by which
"the questions of boundaries pending between the two nations"
was submitted to His Majesty, the King of Spain "for his decision
as Arbiter of the right, definitively and without appeal." That con
vention was ratified by the respective Congresses and ratifications
were exchanged at Lima on the 14th of April, 1888 (D. B. P., No.
1;D. M. P., vol. Vn, p. 363).
Leaving for consideration further on the study of the arbitration,
in which we shall examine into the meaning of the expression
"pending questions" and ascertain the powers of the arbitrator,
we confine ourselves now to the statement that that convention ex
presses the desire of both parties that the matter shall be decided
in accordance with the merits, and this without imposing any cri
terion whatever or mentioning any previous treaties, although the
parties are authorized in the 6th article, at any time prior to the
arbitral decision, to come to an agreement or compromise through
the medium of direct negotiation.
2) The Garcia-Herrera Compromise of 1890 (not ratified).—
By virtue of the above-mentioned authority, the Ecuadorian Gov
ernment made to the Government ofSPeru on the 1st of October,
1888, a proposal for the appointment of a mixed commission, in
compliance with the provision of the treaty of 1829, in order to

262
Bring about a direct settlement, and that the Government of Co
lombia should be invited to participate in the arbitration. The
Peruvian Government replied that the arbitration was absolutely
an arbitration of right; that one of the points for decision would
fee whether the treaty of 1829 was or was not in force, and that
the action of the arbitrator could not be trammeled by any limita
tion. As to the participation of Colombia in the arbitration, it did
not think that advisable, as it would tend toward complications,
the questions involved between that country and Ecuador being
of a very different nature from those involved in her dispute with
Peru. The Government of Ecuador persisted on the 29th of Decem
ber, limiting its request, however, to a direct discussion at Quito
in order to see whether they could arrive at an amicable compromise.
That proposal accepted, D. Arturo Garcia and D. Pablo Herrera
were appointed for that purpose as the Plenipotentiaries of Peru
and Ecuador, respectively. They met at Quito in October, 1889, the
former accompanied by D. Alberto Ulloa, Secretary of the Peru
vian Legation, and the latter by D. Honorato Vazquez, Under Secre
tary of Foreign Relations.
Twelve conferences were held between the Plenipotentiaries be
tween the 28th of October, 1889, and the 2d of May, 1890, on
which day they signed the treaty bearing their names. The field
of their first discussion was as to what each regarded as the strict
right of the case. The Ecuadorian Plenipotentiary leaned for sup
port upon the treaty of 1829, which he interpreted in the sense of
the uti possidetis of 1810, and without taking into consideration the
Royal Decree of 1802. Peru, on the other hand, set up that decree
and insisted on her right to the retention of Jaen and Tumbes.
But, convinced that they would not be able to agree as to the strict
rights involved, they passed on to the field of compromise, finally
reaching an agreement.
The agreement arrived at consisted in the settlement on a division
ary line beginning at the Santa Rosa inlet, followed along the
n'vers Sarumilla, Alamor, Chira, Macara, Canchis and Chinchipe
fi.. their confluence with the Maranon, and, from that point, along
the Marafion, the Pastaza, the Pinches, various other rivers and
artificial lines, and the Putumayo, as far as the frontier of Brazil —
that is to say, the province of Tumbes was somewhat diminished, the
province of Jaen was left to Peru, and there were taken ftom Peru
the territories of Canelos and a large part of tlv :>r>-ir:.f '"V-->iti-
daricia general "f May;'-, ^bis ht,s ;.iMi<-.st the real'/.,.!- ¦ ¦..{

263
Bolivar's scheme and the hopes of the negotiations of the Columbian
treaties, none of whom had attained their ends.
As a result of the dispute over Canelos, Peru had gone to war in
1858, she had submitted her demands of 1887, and had negotiated
a Spanish arbitration, and, with that arbitration still pending, her
Plenipotentiary signed, by way of compromise, a treaty in which,
not only Canelos, but a considerable part of Maynas is abandoned.
How may such a compromise be explained ? The Plenipotentiary
of Peru, D. Arturo Garcia, defends it in a memorial by saying:
"Arbitration means war, paradoxical as the statement may appear.
Arbitration in absolute form, unlimited as to the subject mat
ter to be agreed upon, and based on strict right, admits of only
radical solutions in the great dispute in which we are engaged.
* * * War! But does the Peruvian live who would go to
war to conquer a few leagues of uninhabited territory * * * *
and employ therein the forces, the moneys and the blood of the,
Republic when we have on the south greater interests to defend,
more sacred rights to uphold and more tremendous perils 4o
avert?" He alluded to the situation in which Peru found her
self with relation to Chile in consequence of the war on the Pacific
coast. And that is tlie only thing he had to say in extenuation
which could serve to lessen the severity of the judgment respecting
that negotiation.
The Congress of Ecuador at once ratified the treaty of June 18,
1890. It was also ratified by the Peruvian Congress on the 25th
of October, 1891 — conditionally, however, for two important modi
fications, requiring further negotiation, were introduced with re
spect to the Amazonas region, and on these Peru insisted in its
resolution of October 25, 1893. The Peruvian Congress, which
looked with disfavor on the compromise, resolutely opposed giving
Ecuador an entry to the Amazonas and the acceptance of the pro
posed line between the Napo and the Putumayo.
The Ecuadorian Congress, holding that such modifications es.-
tially varied the proposal for the treaty, withdrew its ratificat' ¦¦<
on the 25th of July, 1894, at the same time charging the execut v ;
power to start further direct negotiations (D. M. P., No. 41).
3) Supplemental Arbitral Convention of 1894 (not ratified —
On the 13th of August, 1894, the Colombian Government thoiudu
it necessary to intervene in the direct negotiations between E. .-.
dor and Peru because of the right it believed itself to possess

264
that part of the territory lying between the Napo and the Caqueta,
or Yapura. Its intervention accepted, the representatives of the
three governments held several conferences at Lima, resulting in
the supplemental arbitral convention oi December 15, 1894. By
that convention Colombia acquiesced in the arbitration submitted
to the King of Spain in 1887, stipulating that the Royal Arbitrator
should render judgment as to titles, not only on arguments of law
but also with a view to the accommodation oi the contracting par
ties, so that the divisionary line should be based on law and equity.
The supplemental convention was ratified by the Congresses of
Colombia and Peru, but not by that of Ecuador, which declined.
Ten years passed without action, whereupon the Peruvian Congress
withdrew its ratification on the 29th of January, 1904 (D. M. P.,
No. 43).
The direct negotiations being regarded as at an end, Sres.
Cornejo and Valverde, as representatives of Peru and Ecuador,
agreed in the protocol of February of that year that the Spanish
arbitration, which had been suspended, should proceed (D. M. P.,
No. 48).
V. Resume of the Boundary Ques
tion from 1830 to 1904.
The boundary question, during the 74 years intervening be
tween 1830, when Ecuador was born, and 1904, the year in which
it was agreed that the Spanish arbitration should be proceeded
with — that is to say, what Peru calls the Ecuadorian question to dis
tinguish it from the Colombian question — may in our judgment be
summarized as follows:
1st. Between Peru and Ecuador no treaties have existed with
reference to the question of boundaries possessing the force of
law other than that of Lima of July 12, 1832, and the arbitral con
vention of August 1, 1887. The others never passed beyond the
stage of projected treaties because of their failure of approval or
ratification. 2d. The treaty of 1832 is that by which the States mutually
recognize each other as then constituted, each respecting the other's
possession of the provinces of which they were composed. The
settlement of boundaries is left for a special agreement, both states
in the meanwhile to retain their "present boundaries." No Condi-

265
tions, however, are imposed for the negotiation of such an agree
ment, nor is any mention whatever made of the Colombian treaty
of 1829, which was thereby nullified, unless^ indeed, it had not
already been nullified by the disappearance of Colombia.
3d. The treaty of 1832 continued in force because it was not
annulled, and, even though it be regarded as having been broken
by Peru's military occupation of Guayaquil in 1858 — which we do
not believe to be the case, since the good relations between the two
States were re-established without the aid of a definitive treaty of
peace, and that continuance of good relations was tantamount to a
mutual recognition by the States as then constituted — it would in
any event result that it produced the effect of their mutual recog
nition as constituted, and because of its nullification by the war ;
it is clear, anyway, that the treaty of 1829 was also annulled, as
suming that it ever was in force.
4th. The possessory status recognized in 1832 has been pre
served during this long period of time, except on the occasion of
the transitory occupation of Guayaquil by Peru; the latter contin
ued in the possession of her component provinces of Tumbes,
Maynas and Jaen.
5th. The -special agreement for the settlement of boundaries to
which reference is made in the treaty of 1832 was not eniered into,
all of the proposals advanced before and after the agreement to
arbitration of 1887 having been rejected.
6th. Through those proposals Ecuador brought about, by means
of a "compromise," the realization of Bolivar's scheme, set forth
in his letter of 1822, to finesse with Jaen in order to obtain as much
as he could of the ancient Comandancia general of Maynas and
extend -along the coast of Tumbes.
7th. The relations between Peru and Ecuador have been those
of mutual respect, and even cordiality, in spite of such aspira
tions,, and excepting the incidents referred to. Especially was this
the case from 1861 to 1887, when it may be said that the question of
boundaries was decided by the tacit consent to the maintenance of
the possessory status, and when, also, for the purpose of the re
newal by Ecuador of the projected agreement with her creditors,
it was felt to be necessary to make the delimitation to see whether
part of the territory of Maynas (with which Ecuador sought to
satisfy those creditors), could be disposed of; whereupon they
agreed upon the present arbitration.

266
8th. Underlying the arguments by Peru and Ecuador in their
diplomatic notes and conferences in support of their claims, we
see recognized the principles of the "colonial uti possidetis," al
though interpreted differently as to date and application to the
diverse colonial circumscriptions.
When in the chapters that follow we shall have set forth the prin
ciples of international law in accordance with which, in our opinion,
the boundary dispute should be resolved, we shall have completed
our deducing of the conclusions to be reached from the history of
the formation of the States of Peru, Colombia and Ecuador and our
study of their treaties and relations.

CHAPTER VIII.
Principles of International Law.
(The Colonial "Uti Possidetis")

Summary:

I. The doctrine of international law.— 1. Necessity thereof as a basis.—
2. The nature of its doctrine; questions of territoriality and de
limitation. — 3. Principles of international law applicable to the
present case.
II. The principle of colonial uti possidetis.— I. Its significance.— 2. Its ra
tional foundation.
III. Adoption of the principle by the Spanish-American States. — 1. Centra!
America. — 2. South America : a) general declarations ; b) con -
crete questions; between Colombia and Venezuela (1881), be
tween Bolivia and Chile (1843 and 1863) and between Bolivia
and Peru (1902).
IV. Its recognition in disputes over Peruvian boundaries. — 1. By Colom
bia. — 2. By Ecuador and Peru.
V. Determinatioii of the date of the colonial uti possidetis.
§1. Tlie Doctrine of International Law.
i) Necessity thereof as a Basis. — If, even when treaties in
force define in their texts the bases for settlement of conflicts be
tween two States, the doctrine of international law must be re
sorted to as a means of interpretation or construction, it is abso
lutely necessary, when those bases are not set forth therein, as hap
pens in the present case, to appeal to that doctrine in order to weigh
the facts, estimate the value of the legal precedents and establish
tlie fundaments for the decision.
The arbitral convention of August 1, 1887, committing to
His Majesty, the King of Spain, as Arbiter of the right, die resolu
tion of tbe boundary question pending betwen Peru and Ecuador,
assigns no bases whatever, nor does it give the slightest indication
that could serve as a criterion for his decision, but left him fully at
liberty in respect of his appreciation of the justice of the matter.
Prior to that convention, no treaty had been ratified, other than
that of July 12, 1832, which recognized and respected "the present

268
boundaries" of that time, and left their fipal adjustment "for a
special agreement," without, however, prescribing either a basis
or a criterion for such adjustment. That treaty, as we have said,
nullified the treaty of 1829 with Colombia, or confirmed its caducity,
for, if the later treaty had held the earlier one to be in force, or
had wished to make use of it as a model for the special agreement
mentioned, it would so have stated.
2) Nature of that Doctrine; Questions of Territoriality and
Delimitation.— In such a situation, it is essential that we should
set up a basis on which to solve the questions at issue in accordance
with the doctrine of international law. And what is that doc
trine ? That which corresponds to the nature of those questions
and is possessed of such requisite soundness as will enable it to
serve as the foundation of the justice of the arbitral award.
We shall not at this time specify those "pending questions,"
on which the decision of the Arbitrator should be centered.
That is a subject we shall examine into later in dealing with his com
petency and powers. But we do say that, taking the case as a whole,
and following the method adopte'd in our study up to this stage,
two, questions have been developed which, although intimately re
lated, are quite distinct, and which, for greater clearness, we shall
distinguish as the question of territoriality and the question of
delimitation. We understand by the question of territoriality that which re
fers to the right of property or possession in a given territory, con
sidered uti universitas, as a geographical unity or circumscription,
or the groundwork of a political or administrative entity; and we
understand by the question of delimitation that which relates to
the fixing of a divisionary line circumscribing or marking the
contour of that territory and separating or differentiating it from
contiguous territories. It is clear that the divisionary line once
fixed, the question of territory is solved, and thereby the ques
tion of boundaries, divested of that ambiguity with' which it has
been so much abused ; but it is no less evident that the question of
territoriality may be resolved without arriving at an adjustment of
that divisionary line.
The doctrine of international law, therefore, applicable to the
problem in its entirety, is that which relates to tbe territoriality and
delimitation of States. But it deals with States of colonial extrac
tion, formed out of territories and entities formerly belonging to

269
Spain, and it was inevitable that disagreements should have arisen
among the States as a result of their formation and connection
with the past, because of which the general doctrine of interna
tional law has become specialized with regard to the origin of fhe
Spanish-American States.
As a result of that very specialization and the necessity for re
solving similar problems in numerous States and the considerable
time already elapsed since their origin, the doctrine of Spanish -
American international Law has been gradually elaborated and es
tablished. It is at once theoretical and practical and affords a sure
basis for an appropriate judgment.
This doctrine is an application of the general principles of in
ternational law, but confirmed by treaties and agreements, declara
tions by the governments, diplomatic negotiations and actual facts,
forming a sort of jurisprudence governing the Spanish-American
peoples. And the doctrine is also the resultant of the history of
Peru's relations with Colombia and Ecuador.
3) Principles of International Law Applicable to the Present
Case. — To our mind four principles go to make up the doctrine of
international law applicable to the case: 1st, the colonial uti possi
detis; 2d, the sovereignty of emancipated peoples; 3d, continu
ous possession from the time of the birth of the States, and, 4th,
the recognition of their personalities in international relations. The
first two principles constitute the special doctrine of territoriality
and delimitation of the Spanish- American States; the last two are
general in character.
§11. The Principle of Colonial Uti Pos
sidetis.
1) The Meaning of the Principle. — Uti possidetis was the term
used in Roman law to designate the interdicto of retention of pos
session which the Praetor pronounced, using the formula: Uti eas
cedes de quibus agitur, nee vi, nee clam, nee precario, alter ab alter 0
possidetis, quominus ita possideatis vim fieri veto — "As ye possess
the buUdings (or lands) referred to, without having. obtained pos
session thereof, one from the other, by force, or clandestinely, or by
sufferance, I forbid that ye be hindered in continuing so pos-
sebsed," or, in briefer form : Uti possidetis, ita possideatis — "As ye
^possess, so may ye possess."

270
By virtue of that interdiction, the party holding was protected in
his possession, which was most advantageous for the party in pos
session in the event of litigation, because the Institute says : "It is
better to possess than to claim" (commodius est possidere potius
quam peter e). "The advantage of possession consists in this, that
even though the property does not belong to him who. possesses it, if
the claimant cannot prove his own ownership, the possession will
remain in him who holds it" (commodum autem possidendi in eo
est, quod, etiam si ejus res non sit qui possidet, si modo actor non
potuerit suam esse probare remanet suo loco possessio) ; and "for
that reason, when the rights of both litigants are obscure, the judg
ment is usually against the claimant" (propter quam causam, cum
obscura sint utriusque jura, contra petitorem judicare solet). Now
we have before us the great legal value attached to possession, much
greater in international relations because of the respect due to the
sovereignty of the State exercised in the territory possessed.
The term expressing that interdiction, uti possidetis, has been
adopted by international law to designate the principle "of the
preservation of the possessory status" and is used chiefly in treaties
of peace. Bluntschli regards the expression as incorrect, on the
ground that the principle does not refer to possession under private
law but to "territorial sovereignty," and the treaty of peace is not
limited to the recognition of possession as temporary after the
manner of the Roman interdiction but as the definitive status in
which the peace is founded (Le Droit International codifii, Art.
715 r). But it is certain that the formula uti possidetis, ita possi
deatis, or simply uti possidetis, serves to express the recognition
and respect for possession in international relations.
The principle of uti possidetis, says Valenzuela, was introduced
in the mutual relations of American republics of Spanish origin by
the treaty of Bogota of 1811, entered into by the United Provinces
of Venezuela with the United Provinces of New Granada, wherein
the parties obligated themselves to recognize and respect, as the
boundaries between them, those which had been possessed by the
Captaincy general and the Viceroyalty bearing those names.
The principle of "colonial uti possidetis" signifies, then, the recog
nition of the possessory status in which the provinces or regions
were found when they were colonies and the continuity of the same
when emancipated and forming independent States.

271
2) Its Rational Foundations. — It is easy to understand that in
the emancipation from Spain of her American regions and prov
inces, they adopted the principle of uti possidetis, preserving the
territories and boundaries of the colonial regime and recognizing
them reciprocally as the territories and boundaries of the new
States they constituted.
Colonies and States partake in common of the character of
peoples who live in a determinate territory subject to a common
government. Those peoples change in system by the emancipation,
converting themselves from subject peoples into peoples wholly
free, but they continue to be the same people, historically formed
upon the territory on which they establish themselves. The re
gions and provinces of the Spanish colonial regime commenced by
being territorial demarcations, established by the Kings of Spain
by conquest, civilization and general government according to the
needs of the times and the requirements for their care. Within the
demarcations peoples began to form themselves on the nucleus of
the Spanish population, which extended and mixed with the in
digenous races ; and it is natural that the peoples of one demarcation
having property and interests in common, having formed their
social relations, and, during three centuries, having lived under a
common regime, should wish to continue united after succeeding.
also by their united efforts, in achieving their independence.
The great colonial circumscriptions called viceroyalties and cap
taincies general were converted by the revolution into independent
states, constituted from the provinces formed under the colonial
regime which had become the true unities of the social life and
administration of the people, especially after the creation of the
intendencies. The contour of those viceroyalties and captaincies
general, marked out by the frontier boundaries of the provinces, be
came as a general rule that of the new States, except in cases of
voluntary union or separation, of which we shall speak further on.
§111. Adoption of that Principle by the
Spanish-American States.
i) Central America. — The northern boundary of the ancient Cap
taincy general of Guatemala naturally established the line between
Mexico and the provinces constituting that captaincy general which
were proclaimed independent in 1821. They formed in 1823 the five
United States of Central America : Guatemala, Salvador, Honduras,

272
Nicaragua and Costa Rica, accepting for their boundaries, respec
tively, those possessed as Spanish provinces at the time of their
emancipation. Honduras, while embraced in the federation, de
clared, in her own constitution of 1825, that her territory was that of
the Bishopric of that name.
By the treaty of March 15, 1825, entered into between the Repub
lics of Colombia and Central America, the parties mutually guaran
teed the integrity of their territories "on the same footing" as that
on which they found themselves before the war of independence.
The principle of colonial uti possidetis has been the one invoked
in the boundary disputes arising among those republics of Central
America from the time they separated in 1838, such as that between
Costa Rica and New Granada, and that ultimately settled by His
Majesty, the King of Spain, on the 23d of December, 1906, between
Honduras and Nicaragua. The award was based upon the consent
by both parties, in the treaty of Tegucigalpa of 1894, that "it should
be understood that each republic was the owner of the territory
which at the date of the independence constituted respectively the
provinces of Honduras and Nicaragua."
2) South America.
a) General statements. — We have already stated that the treaty
of Bogota of 1811 was looked upon as the origin of the principle
of colonial uti possidetis in South America. By that treaty the
United Provinces of Venezuela and the United Provinces of New
Granada, by way of compromise, agreed to recognize and respect,
as the boundaries between them, those possessed by the Captaincy
general and Viceroyalty so named.
Colombia maintained the principle, applying it to the year 1810,
in which began the insurrectionary movement that brought about
the treaty. The Minister of Foreign Relations of that republic
declared before the Congress in 1823, while discussing the American
confederation: "That, in order to guarantee the independence and
integrity of the territory, the uti possidetis of 1810 should be ad
hered to according to the territorial demarcation of each captaincy
general or viceroyalty erected into a sovereign State." In like man
ner another Minister, D. Manuel. Restrepo, expressed himself in his
memorial concerning foreign relations, written in 1827, and, with
even greater precision, D. Carlos Martin, Secretary of Foreign Re
lations, declared in another memorial as follows : "All those Amer
ican nations that depended upon Spain, the mother country, have

273
admitted as the basis of their adjustments of boundaries the uti
possidetis of 1810 — that is to say, the demarcations determined upon
as distinct portions of American territory by valid acts, by laws,
by the right pf the ancient common sovereignty; the force of which
is recognized by all. To none of them has it ever occurred to
impugn the validity of a decree or order of the Spanish monarch
on the subject of boundaries under the pretense that, notwith
standing his rulings, the government of the ancient viceroyalty
or captaincy general usurped portions of territory adjudicated to a
neighboring nation" (B. P., p. 73).
The attempt is made in the American Congress assembled at
Lima in the year 1848 to form an American confederation com
posed of New Granada, Ecuador, Peru, Bolivia and Chile, and
the plenipotentiaries of those republics signed at the time a treaty,
which, however, did not reach the stage of final ratification, but
in which it was stipulated that: "The confederated republics de
clare themselves to be possesed of a perfect right to the boundaries
of their territory as possessed at the time of their independence by
the respective viceroyalties, captaincies general or presidencies into
which Spanish America was divided."
b) Concrete questions. — The question of boundaries arises be
tween the United States of Colombia and the United States of Vene
zuela, and, in their treaty of arbitration, signed on the 14th of
September, 1881, whereby the decision was committed to His Maj
esty, the King of Spain, they agreed as a basis that: "All of the
territory belonging to the ancient Captaincy general of Caracas by
royal acts of the ancient sovereign down to 1810, continues to be
the jurisdictional territory of Venezuela, and all that which by
similar acts at that date belonged to the jurisdiction of the Vice-
royalty of Santa Fe continues to be the territory of the United
States of Colombia." On that basis the award of the Royal Arbitra
tor of March 16, 1891, rests.
Other boundary disputes arise between Bolivia and Chile and
they likewise invoke the colonial uti possidetis. The Bolivian Min
ister states to the Santiago government in 1843, in the dispute over
Mejillones : "It would be idle to remind Your Excellency that, in the
matter of boundaries, the American States recognize the ancient
demarcations established by the mother country." Another Bolivian
Minister declared before the Congress of Oruro in 1863 in the dis
pute over Paposo: "By that royal decree of October 10, 1803,

274
it is ordered that Paposo, and its ports and adjacent coves, be aggre
gated to the jurisdiction of Peru — a sovereign disposition weaken
ing in every particular the jurisdictional acts exercised by Chile
since that date, and which constitutes an incontestible right in favor
of Bolivia." And, relative to that conflict, the Chilean Minister of
Foreign Affairs states to the Congress: "It is sought to establish
the boundaries which during the Spanish regime separated the
Audiencia District of Charcas" (B. P., p. 74).
Bolivia is also engaged in a boundary dispute with Peru, which, by
the treaty of December 30, 1902, is under submission to the arbitra
tion of the Argentine Republic, and it is agreed that it shall be settled
in such manner that "all the territory belonging in 1810 to the judis-
diction or district of the ancient Audiencia of Charcas, within the
limits of the Viceroyalty of Buenos Aires, by virtue of the acts of
the ancient sovereign, shall belong to the Republic of Bolivia, and
that all the territory which at that time, and by virtue of acts of the
same authority, pertained to the Viceroyaly of Lima, shall belong
to the Republic of Peru."
The colonial uti possidetis, then, is the principle accepted by the
Spanish-American republics, with reference to the date or act of
independence and to the manner in which it was determined by the
acts of the Spanish sovereign in the different portions of territory
of the colonial jurisdictions. *** *-
§IV. Its Recognition in the Question of
Peruvian Boundaries.
i) By Colombia. — In Bolivar's instructions transmitted by the
Colombian Minister, D. Pedro Gual, in December, 1821, to D. Joa
quin Mosquera, for the negotiation of the treaties with the new
States, among them Peru, he directed them to insist on the preser
vation of the integrity of the respective territories "as they were
defined in 1810. * * * "
The treaty between Colombia and Peru signed by Mosquera and
Monteagudo on the 6th of July, 1822, specifies no principle what
ever, but respects the status quo, leaving for a special agreement the
demarcation of the exact boundaries.
That agreement was entered into by Mosquera and Galdeano in
December, 1823. In it were recognized as the boundaries of the
respective territories "the same that were possessed in the year

275
1809 by the ex-Viceroyalties of Peru and New Granada." The agree
ment was not ratified by the Colombian Congress for the reasons al
ready given.
The above-mentioned Colombian Minister, D. Pedro Gual, in
the instructions given to General Sucre on the 30th of June, 1825,
for the reopening of the negotiations, says : "The Executive of Co
lombia has adopted, as a rule of conduct, in all his boundary negotia
tions with other American powers, an adherence to the uti possidetis
of the time in which they emancipated themselves from Spain."
In the peace agreement signed at Giron on the 28th of March,
1829, it is stipulated that a commission shall be appointed to settle
the boundaries, "the political division of the Viceroyalties of New
Granada and Peru, in August; 1809, when the revolution of Quito
broke out, to serve as a basis. * * * "
The definitive treaty of peace of September 22, 1829, signed by
D. Pedro Gual as Colombian Plenipotentiary, stipulates that both
parties recognize, as the limits of their respective territories, "the
same that were possessed by the ancient viceroyalties before their
independence. * * * "
2) By Ecuador and Peru.— The treaty of mutual recognition of
1832 between Peru and Ecuador left the settlement of boundaries
to a special agreement without assigning any principle.
When in 1840 the Government of Peru addressed itself to the
Governmerit of Ecuador for the purpose of proceeding with that
settlement, it stated that the boundaries would have to be deter
mined in accordance with the principle of uti possidetis "with refer
ence. to time of the birth oi the new republics."
In the conferences held in 1841 the Ecuadorian Plenipotentiary
proposed the "uti possidetis prior to the independence" to which the
Plenipotentiary of Peru replied that it would be safer to abide by the
uti possidetis "subsequent to the gaining of independence."
The Peruvian Minister, replying to Ecuador's protest against the
Peruvian enactment of 1853 creating the government of Loreto,
based his position on "the Royal Decree of 1802 and the principle
of uti possidetis of 1810, adopted by the Spanish-American repub
lics." This stand was also taken by the Peruvian representative in
Ecuador on the occasion, during the same year, of the protest against
the Ecuadorian law concerning the Amazonas rivers, and was again
assumed in 1857 in protesting against Ecuador's project to cede
Maynas territory to her English creditors.

276
For that reason the Government of Ecuador declared that it would
rely on the uti possidetis of 1810, which was that referred to by
Article 5th of the treaty of 1829, and the Government of Peru, hav
ing previously based its answer on the uti possidetis of 1810, replied
that it is "the principle that has been adopted by all the republics
of Spanish origin, that being the year in which, in most cases, their
independence was realized."
The peace treaty of 1860 following the hostilities which broke out
over that question provided that a mixed commission should adjust
the boundaries, accepting provisionally those resulting "from the
uti possidetis recognized in the treaty of 1829," conformably with the
Royal Decree of 1802. The Peruvian Congress opposed its ratifi
cation, among other reasons, because the uti possidetis of 1810 be
ing recognized and by virtue of the Royal Decree, it was not neces
sary to leave the matter pending the production of further evidence.
In the direct negotiations following the arbitral convention of
1887, the Plenipotentiaries of Peru and Ecuador, D. Arturo Garcia
and D. Pablo Herrera, met at Quito to negotiate the treaty of 1890
(which did not reach the stage of ratification), and took up the
discussion of the question of strict right. They agreed that the
principle of colonial uti possidetis must apply, but conceived the ap
plication to be as of different dates : the Plenipotentiary of Ecuador
favoring the year 18 10, which signified, in his judgment, the status of
right created by the royal decree of 1717; and the Plenipotentiary
of Peru as of the period prior to the independence, under the author
ity of the Royal Decree of 1802. It is to be noted that the Ecuado
rian Plenipotentiary accepted the uti possidetis of 1810 as being
"that recognized in the -treaty of 1829 and by America as a whole."
In the conferences of 1894 for the negotiation of the supplemental
arbitral convention, and which also failed, of ratification, the Pleni
potentiaries of Colombia stated that, by virtue "of the principle of
Spanish-American public law known as the uti possidetis of 1810,
the States emancipated from the Spanish colonies hastened to de
clare in the first moments of their emancipation, that the frontier
lines of their colonial territories should continue to be the same that
had divided the colonial entities one from the other at the time of
the proclamation of their independence in 1810." The Ecuadorian
Plenipotentiary stated that in the award rendered by Spain in the
dispute between Colombia and Venezuela, "it is recognized as an
incontrovertible truth that the boundaries of the Spanish-American

277
States are those possessed by the respective territorial circumscrip
tions in the colonial epoch." We have already shown that that award
of 1891 was founded upon the basis of the uti possidetis of the year
1810 agreed to by the parties in accordance with the royal acts of
the ancient sovereign. And the Peruvian Plenipotentiary explained
how "the American principle of colonial titles of 1810'' should be
understood and applied (D. M. P., vol. II, pp. 28, 42 and 59).
In the present Arbitration Ecuador has asked for the principle
of colonial uti possidetis, but antedates it to apply to the period of
creation of the Audiencia of Quito and the Viceroyalty of New
Granada, for the purpose of securing, in their entirety, the terri
tories then assigned to those demarcations. Peru accepts the colo
nial uti possidetis as fixing the boundaries of the provinces of which
she has been composed since her birth as a sovereign State in con
formity with the boundaries possessed by those provinces at the
moment of independence.
§V. Determination of the Date of the
Colonial Uti Possidetis.
From the foregoing exposition, it results that all of the Spanish-
American republics have accepted the colonial uti possidetis as the
basis of the adjustment of the boundaries of their respective terri
tories on which they have been constituted as sovereign States.
But in setting up that principle, the three following forms are em
ployed : the uti possidetis of 1810; that of the moment of the eman
cipation, and that prior to the independence.
The uti possidetis of 1810 is the term most generally adopted
in South America, because first used in the Bogota convention
of 1811 between New Granada and Venezuela, and the year
1810 having been that in which the insurrection broke out in the
greater part of the Spanish dominions in South America. Colombia
caused that term to prevail throughout her internal and foreign re
lations. But it must not be forgotten that Spain had suppressed
the insurrection in New Granada in 1816; that the union of the
provinces of New Granada and Venezuela was not accomplished
until 1819; that Quito continued in the power of Spain until 1822,
and that Guayaquil, independent from 1820, was not incorporated
in Colombia until 1822. The year 1810, therefore, did not corre
spond to the fact of Colombia's birth as a State composed of the
provinces of Venezuela, New Granada and Quito.

278
The provinces of Central America did not emancipate themselves
until 1821, when, more advisedly, they adopted the term "colonial
uti possidetis of the time or date of the independence," which
served as the basis of the recent settlement of the boundary question
between Honduras and Nicaragua in 1906.
And, furthermore, when, in the American Congress of 1848, the
representatives of the various republics of the south — New Grana
da, Ecuador, Peru, Bolivia and Chile, met to form a confederation,
they also accepted the uti possidetis of the time of the independence.
The term "before the independence" employed in the Guayaquil
treaty of 1829 amounts to the same thing, since it must be under
stood as of the ultimate moment of colonial dependency and not as
of the date of the creation of the Viceroyalty of Santa Fe by the
royal decree of 1717 in disregard of subsequent decrees modify
ing the territorial demarcation, as Ecuador now claims the right
to do.
It is to be noted that when the Ecuadorian Minister of Foreign
Relations replied on the 30th of November, 1857, to Peru's protest
against the projected adjudications to the English creditors, he
used the expression "the uti possidetis of 1810, recognized by all
the South American states, and among them Peru, in Article 5th
of the treaty of 1829" (D. B. P., No. 24). And, at the second con
ference at Quito on the 4th of November, 1889, which was attended
by D. Honorato Vazquez, the plenipotentiary of Ecuador stated that
no other basis could be adopted than "the demarcation of the ancient
viceroyalties, that is, the uti possidetis of 1810, recognized by Peru
in the treaty of 1829 and by all America," adding "that the arbitral
convention (the present one) also had that object in view" (D. M.
P., vol. I, p. 270). Later it becomes evident that Ecuador interprets
the treaty of 1829 in the sense of accepting the uti possidetis of
1810, however much her representative afterwards, in the same
conference, maintained that the uti possidetis of 1810 was the one
established by the. royal decree of 1717 creating the Viceroyalty of
Santa Fe.
The principle of uti possidetis carries with it the idea of con
tinuity in possession. The very words show this: uti possidetis —
"as ye possess," not "as ye zvere possessing" ; ita possideatis — "so
may ye possess," or may continue possessing. That is the signifi
cance of the formula of the Roman Praetor in the interdiction for
retention of possession ; that is the significance of the international

279
law term, as a recognition of the present status of possession, for the
purpose of continuing in possession, not in a provisional sense but
definitively, as stated by Bluntschli ; and that is also the significance
for the emancipated peoples who would, on their constitution as
independent states, continue in possession of the same territories and
boundaries held by them as colonies.
To antedate possession to an earlier status, distinct from that
existing at the date or moment under consideration, is to alter the
very nature of the principle.
The peoples who emancipated themselves in 1810 would naturally
adopt that date, but not Peru who remained faithful to Spain until
1820, who proclaimed her independence in 1821 and only achieved it
in fact in 1824.
Is it desired to establish a common date for all peoples interested
in the question with which we are now concerned? Then fix upon
the year 1820, in which the troops of General San Martin entered
Peru, when Peru rose in insurrection and the uprising was gen
eralized, when it became possible for Colombia to constitute her
self and for Guayaquil to achieve her independence. The events
in Quito in 1809, 1810 and 1811 were unimportant; they did not
have the character of secession, nor did the domination of Spain
cease for a moment over that province — it continued under the rule
of the Spanish authorities until 1822, after the battle of Pichincha.
General Sucre criticises the term before the independence em
ployed in the treaty of Guayaquil in 1829, and- remarks, as we have
shown: "Referring to the boundaries possessed by the two Vice-
royalties at the time of achieving their independence, it has been
left obscure because Peru proclaimed herself independent in the
year '20, New Granada in the year '10 and in both epochs the revo
lution itself extended the authority of the Viceroy of Peru. For
this reason I established (in the convention of Giron) those pos
sessed in the year 1809, which was a period well understood" (M. P.,
vol. II, p. 97).
Sucre, then, interpreted the treaty of 1829 in the sense of the uti
possidetis of the time of the independence and was apprehensive
only lest, by the extension of the authority of the Viceroy of Lima
during the war over the provinces of the Viceroyalty of Santa Fe,
the State of Peru might claim the right to spread out her boun
daries to the prejudice of Colombia. But that danger does not ex
ist, since Peru claims no.jnore than that which belonged' to the

280
Viceroyalty by colonial law and that which belongs to her as a state
by the will of the peoples of whom she was constituted.
Whether we rely on the principle of uti possidetis of 1810 or
1820, or of the respective dates of independence, Peru can invoke in
her favor the colonial titles for the determination of the boundaries
of the territories corresponding to the boundaries of which she has
been composed from the time of her birth as an independent state.

CHAPTER IX.
Principles of International Law.
(Sovereignty of Emancipated Peoples.)
Summary: I. The principle of the sovereignty of emancipated peoples. — 1. Explana
tion of the principle/— 2. .Its differentiation from the principle set
up by Rousseau. — 3. It is not opposed to the principle of nationali
ties. — 4. The Spanish- American states formed - by the voluntary
union of colonial provinces.
II. Acceptance of- that principle by the Spanish- American states, in gen
eral.
III. Its recognition by the states interested in the question at issue.— 1. By
the old Colombian Republic. — 2. By Ecuador. — 3. By Peru.
§1. The Principle of the Sovereignty oi
Emancipated Peoples.
i) Explanation of the Principle. — The principle of the "sover
eignty of emancipated peoples" means that as soon as the colonial
peoples by their own force break the ties of dependency upon the
mother country, they can do as they please ; they cart either consti
tute themselves into independent states, unite among themselves to
form a common state, or incorporate themselves within other
states. Subordinated to that principle is that of colonial uti possidetis,
for if the latter served as the basis for the constitution of the new
states, it was not by the imposition of the mother country, or as a
result of the obligatory force of colonial law, inasmuch as those
states were born out of the struggle against Spain, but because they
accepted that principle and proclaimed it voluntarily.
By the acceptance of the colonial uti possidetis, the territoriality
of the colonial entities, with their boundaries, was recognized, but
only so far as those entities voluntarily concurred also in the for
mation of the new states; those were united which had been
separated under the ancient regime (as in the case of New Granada
and Venezuela), or passed irom one circumscription to another
(as in the case of Guayaquil, Jaen and Cauca). In uniting or sepa-

282
rating themselves, their respective territories and boundaries went
with them.
It is by virtue of the sovereignty acquired by emancipation that
viceroyalties and provinces could unite or separate themselves for
the purpose of forming new states on the complete disappearance
of the colonial empire.
2) Its Differentiation from the Principle set up by Rousseau. —
This principle is not a resuscitation, as has been supposed, of the
theory of the social contract of Jean Jacques Rousseau, by which
society and the state were formed by the mere agreement of indi
viduals. States have their birth in two ways: one, spontaneously by the
successive grouping of families, tribes, cities, districts and re
gions, unconsciously proceeding to form social organisms, increas
ing with each accession and rendering more and more compact their
social relations; and the other, reflexive, as in the case of social
organisms already in existence, dependent or independent in politi
cal system, where they unite, separate, incorporate or make them
selves autonomous.
One of the means of giving reflexive birth to states is the eman
cipation of colonial peoples by their own efforts, and not by con
cession from the mother country, or foreign intervention, and, when
that happens, since emancipation signifies the acquisition of sover
eignty, the peoples make use of such sovereignty to constitute them
selves into an independent state, or to incorporate themselves within
another already in existence, or to form with other peoples, who,
in their turn, have become emancipated, a state comprising various
of the ancient colonial circumscriptions. All depends on their
volition having remained equally free since breaking the bonds with
the mother country.
3) It is not Opposed to the Principle of Nationality. — Neither
is that principle hostile to the so-called "principle of nationalities,"
or to the theory of "national states" upheld by Mancini, Padelleti
and Pierantoni in Italy, Laurent in Belgium, Welcker and Blunt-
schli in Germany, Franz Lieber in the United States, etc. It is
true that the nation "does not spring into existence, but builds
itself, and builds itself slowly"; it is also true that for each na
tionality there should be a corresponding state, in order thai the po
litical and juridical life should correspond to the real conditions of
the social life; and it is true, furthermore, tliat when the national

283
state is formed, it must preserve the unity of the country and the
integrity of the territory.
But how was it possible to speak of national states at the birth
of the Spanish- American states by the emancipation of the colonies,
and much less maintain that the audiencia of Quito constituted "a
nationality" with Jaen and Maynas? Neither were the nationalities
formed when the war of independence broke out, nor can that
doctrine be appealed to for the purpose of opposing the voluntary
unions or separations of the peoples which had been united or
separated under the colonial regime, inasmuch as those actions be
ing voluntary, they must be considered as the expression of the
sentiments and aspirations of the peoples.
Whatever of the theory of nationalities may be pertinent to that
question results favorably to Peru. The unity of territory and
the community of moral life are principle factors in the nation.
Therefore, it is enough to glance at a map in order to recognize
that the province of Jaen is an integral part of the unity of Peru
vian territory ; it penetrates like a wedge between its provinces and
bounds with Ecuador on the north, its narrowest side, along the
Canchis, a continuation of the line of the Macara. Its desire to unite
with the Viceroyalty of Lima as a result of its connections, affec
tions, interests and customs was demonstrated in the proceedings
leading up to the royal order of 1784, authorizing its incorporation
in that Viceroyalty. As to Maynas, it is enough to remember that
the Royal Order of 1802 was occasioned by Quito's practical aban
donment of the region, required by its lack of means for its proper
care and the impossibility of intercommunication, for it was neces
sary to cross over the Andes and penetrate into impassable local
ities, and also by the advantage derivable from its restoration to the
Viceroyalty of Lima, with which communication could be main
tained by means of the rivers and greater care given to conservation
and development.
When the war of independence broke out, the province of May
nas formed a part of the Viceryalty of Lima and the province of
Jaen occupied the position of waiting for the fulfillment of the royal
order of incorporation. Maynas and Jaen fought side of side with
the Peruvian provinces to achieve their independence. Is it strange,
then, that on the birth of the State of Peru, they should manifest
their volition to belong to that state and not to any other?

284
4) The Spanish-American States were formed by the Volun
tary Union of the Colonial Provinces. — We have already seen
how the colonial administration, established primarily on the basis
of the audiencias, was later organized by provinces, each constituting
an entity perfectly defined by the unity of government under the
intendent. That substitution of the audiencial for the provincial sys
tem responded to the needs of the peoples, who, though in the be
ginning had found themselves isolated in great units of territory,
were afterwards augmented in number and population, their social
relations restricted and each possessing interests in common dif
fering from those of the others, and, for that reason, while the
audiencia district did not cease to be a territorial demarcation,
the province, in the last moments of Spanish dominion, was a social
unity of peoples besides being a governmental and administrative
organism. The province was possessed of perception, and even conscious
ness, of its personality; and thus we see how it was manifested and
made effective when the agitation in America began, by the or
ganization of juntas and declarations of a political character, now in
protest against the intruder Joseph Bonaparte, now in support of
Ferdinand VII, now in favor of adhering to the constitutional
regime of the mother country.
That which at first was a political movement develops into an
insurrection. The viceroys and captains general of Spain fall from
power or find themselves without forces with which to check the
revolt; the provinces become free and unattached, delivered over
into their own control, they proclaim themselves independent, and
unite among themselves to make that independence effective and
to form new states. Bearing in mind all that we have been moved to
say in regard to the formation of those states, it will be seen how
they were brought into existence and how they were obliged so to
constitute themselves by the union of colonial provinces and in the
exercise of their sovereignty. This is further demonstrated by the
very names at first chosen by them: United Provinces of Cen
tral America, United Provinces of La Plata, United Provinces of
Venezuela, United Provinces of New Granada, etc., and, in the
first constitution of Peru, in its declaration that all its provinces,
united in a single body politic, form the Peruvian nation.
If, then, the provinces possessed that personality, and were real
ly the factors of the new states, how can a province, which by its
o.vn efforts has achieved its independence and finds itself in the

285
plenitude of its sovereignty, be denied the right to preserve its in
dependence, as Guayaquil sought to do, or to belong to Peru, as
was the desire of Jaen, which from the first had ranged itself by the
side of that state?
The principle of the sovereignty of emancipated peoples carries
with it the right of colonial provinces to constitute themselves into
independent states, or to pass from one to another of the circum
scriptions of the ancient regime in order to form part of a new
sovereign personality.
§11. Acceptance ofthe Principle hy the
Spanish-American States, in General.
That the Spanish-American states have accepted the principle of
the right residing in emancipated peoples to constitute themselves
into such states, is proven conclusively by the fact that they have
so constituted themselves without relying wholly on the ancient
territorial divisions of the colonial regime.
Mexico recognized the political independence of the Captaincy
general of Guatemala, which depended on her Viceroyalty, when
they formed the Central American federation and when they
erected themselves in sovereign states.
The confederated states of Rio de la Plata also recognized Para
guay and Uruguay, notwithstanding they formed part of the Vice-
royalty of Buenos Aires.
Bolivia (upper Peru), which depended upon the Viceroyalty of
Buenos Aires down to 1810 and on the Viceroyalty of Lima until
her emancipation, was recognized by the State of Peru, while the
latter was under the dictatorship of Bolivar, and by the Argentine
Confederation. The Bolivian and Argentine governments disputed
the title to Tarija, which, by the royal decree of 1807, had passed
from the Intendency of Potosi to that of Salta, but that province
resolved by the popular vote in December, 1826, to incorporate itself
with Bolivia, and, after protracted negotiations, the Argentine Con
federation recognized Bolivia's right to its retention.
The formation of the Republic of Colombia and the birth of the
State of Ecuador, together with the claims of the latter respecting
Cauca, are the best evidence of their acceptance of the principle of
the sovereignty of the peoples.

286
§111. Its Recognition by the States In
terested in the Question at Issue.
i) By the Old Colombian Republic — The Republic of Colombia
founded by Bolivar in 1819, by the union of the Viceroyalty of New
Granada and the Captaincy general of Venezuela, was an express
recognition of the principle of the sovereignty of the people, for
thereby were united in a single state those two great colonial en
tities, each independent of the other in the fast moments of the
colonial regime.
Rendering tribute to that same principle, Colombia gladly accept
ed the incorporation of Panama, which was resolved upon by the
popular vote of that province at the time of the proclamation of
its independence in November, 1821 ; and we have already observed
the forces exerted by Bolivar to bring about the declaration by the
electoral junta of the province of Guayaquil, annexing that province
to Colombia in July, 1822.
The entire policy of Colombia in her relations with Peru was, as
we have also noted, necessarily inspired by the desire to preserve
the annexation of Guayaquil, from its inception based upon
so weak a foundation that the voluntary character of the annexa
tion was converted into an attitude hostile to the colonial titles
favorable to Peru, titles which the latter invoked to the end that
Guayaquil might be left free to choose between the two republics
or to remain independent.
In the instructions given in 1821 through the medium of the
Minister, D. Pedro Gual, to D. Joaquin Mosquera, for the negotiation
of treaties of alliance and federation with Peru and other new
states, Bolivar said to the latter (as we have heretofore stated, and,
because of its importance, repeat) : "The two parties bind them
selves not to enter into any negotiations with the Government of His
Catholic Majesty on the basis of their respective territories as they
were delimited in 1810 * * * unless that, by laws enacted
subsequently to the rcziolution, as has happened in Colombia, there
be incorporated into a single state two or more captaincies general
or viceroyalties." In the absence of such an exception, based as it
was on the principle of the sovereignty of the people, the legitimacy
of the Colombian state could not have escaped injury.
Colombia's relations with Peru were marked by .entire cordiality
down to 1827, the status quo of the possession of their respective

287
territories was maintained — that is to say, Peru respected the an
nexation of Guayaquil to Colombia, and Colombia respected the in
corporation of Jaen in Peru. The Giron agreement of March, 1829,
and the Guayaquil treaty of September of that year, preserved the
same possessory status; the republics recognized their respective
territories and left pending only the delimitation thereof, in
which they were at liberty to make mutual concessions, not of prov
inces, but of such small parcels of territory as might be necessary
to regularize the frontier line.
2) By Ecuador  Ecuador is of plebiscitary origin, born of the
separation from Colombia in May, 1830, of three departments of
that republic: Ecuador, Azuay and Guayaquil, each of which de
clared itself independent and agreed to constitute jointly with the
others a new state.
Not only in this way did Ecuador recognize the principle of the
volition of the peoples in the formation of states, but she invoked
that principle expressly and positively in support of the right of the
inhabitants of Cauca to separate themselves from New Granada and
unite with her.
The President of Ecuador accepted the incorporation by the
proclamation of December 20, 1830, holding that "to be the ex
pression of the general volition of those inhabitants, manifested in
the minutes of a formal meeting * * * and that the voice of a
people cannot be disregarded. * * * " The Ecuadorian Con
gress ratified the incorporation of Cauca in November, 1831.
Later, in 1832, the conferences at Ibarra were held between the
representatives of New Granada and Ecuador for the purpose of
deciding the question of boundaries, and, as set forth in the protocols
of those conferences, the Ecuadorian commission (presided over
by the Minister of State, Valdivieso) maintained that:
"On the disso'ution of the compacts (giving birth to Colombia)
by the secession of Venezuela and Ecuador, the province of Popa
yan regained its sovereignty, and, finding itself possessed of the
power to exercise that sovereignty as might be most advantageous
to its interests and security, voluntarily incorporated itself in Ecua
dor, in full enjoyment and exercise of its rights. Could any act be
more legitimate? * * * Ecuador does not wish to retain Cauca
by virtue of the possession of the year '10; its rights consist in the
possession acquired by the free incorporation of those peoples. * * *
"Our principles are these: that peoples, like men, may unite and
associate themselves * * *; that while the purpose and condi-

288
tions of the union maintain, the members -do not possess the right
to separate themselves except by concurrence in volition on the part
of all, or a greater part thereof ' * * *; that, on the failure of
the object set up and of the fundamental laws of the compact, the
bonds are dissolved, and the people possessing the elements essen
tial to subsist and maintain' themselves are restored to the possession
of their pristine rights and to their full liberty to determine their
own future; and if, in the exercise of those rights, the people of
Cauca should wish to form a fourth state, * * * by what right
could New Granada oppose that wish? And, if those people have
possessed, and now possess, the right to erect themselves into an
independent state, why should they not have the right, why have
they not the right, under these circumstances, to aggregate them
selves to the state best suited to their convenience?" (B. P., p. 75).
This same reasoning on the part of Ecuador concerning the prov
ince of Popayan, or the Department of Cauca, may be applied to
the province of Jaen, incorporated voluntarily in Peru simce the war
of independence, and Peru's righf to retain that province would be
fully justified under the principle of the will or sovereignty of the
people. 3) By Peru. — In none of the treaties entered into by Peru with
Colombia and Ecuador has the restitution of Jaen and Maynas
been spoken of; on the contrary, all have maintained the rights of
the contracting parties to the possession of their respective terri
tories. When, at the conferences at Quito in 1841 the Ecuadorian Pleni
potentiary, D. Jose Felix Valdivieso, maintained that the basis for
settlement should be the restitution of Jaen and Maynas, in forget
fulness of the doctrine that he himself put forth in defence of the
incorporation of Cauca, the Plenipotentiary of Peru, D. Matias
Leon, replied that: "All the people, made up formerly a single
family, part of the Spanish family, and when they undertook their
independence and the formation of independent states, found them
selves in the position of having to elect the course best suited to
their interests and to adhere to that course ; that th: peoples claimed
by Ecuador have remained from that time as a component part of
the Peruvian nation. They have taken part in her good fortune and
distress. They have agreed, in fine, to her social contract * * *
and, far from finding themselves in discord with that association,
those peoples have shown their acquiescence by continuing to belong
to Peru, by appointing their delegates to her Congress, by receiving

289
the judges and magistrates named by Peru * * * and by hav
ing recourse to the Peruvian government with greatest good will
for remedy in all cases of need" (D. B. P., vol. I, p. 63).
When m 1857 Ecuador proposed to cede to her English creditors
a part of the territory of Maynas, and had replied to the protest of
Peru, the Peruvian Minister resident at Quito rejoined on the 9th
of March, 1858, stating that not only did the principle of uti possi
detis justify the jurisdiction and undisturbed possession exercised
by Peru in that region, but that she could call to her aid still other
arguments of great weight in dealing with the question of the na
tionality of a territory. He continues :
"From the time when the Peruvian people constituted themselves
a sovereign nation by the swearing of her independence, in that
series of acts indispensable to the organization of the republic and
which are the expression of the popular voice, spontaneously mani
fested, whether by the ballot box, whether by minutes of their meet
ings forwarded to the general government at Lima, whether by
municipal necessity — in all those acts the inhabitants of the Coman
dancia general of Maynas have taken part as Peruvians, as citizens
subject to and dependent upon the general government at Lima.
* * * Review all the constitutions, from the first down to the
last, in 1856, drafted by the government of the Peruvian Republic,
and in all of them the deputies of Maynas appear as signatories ; and
all the authorities, civil, political, military or ecclesiastical, who have
exercised their functions in the towns embraced therein, have de
rived their authority from the supreme authority of Peru" (D. B.
P., vol. I, p. 122). I
In the conferences held in 1894 for the negotiation of the supple
mental arbitral convention, the Colombian Plenipotentiaries main
tained that the uti possidetis of 1810 must be modified "by agree
ments for adjustment and reciprocal cessions in any particular in
stances in which the frontier of the colonial provinces might be no
toriously incompatible with the exercise and development of the
autonomous and independent existence of the new states. * * *"
Whereupon the Plenipotentiary of Peru expressed himself in the
following terms, which may be considered as a resume of the ques=»
tion: "The colonial bonds severed, and the territory withdrawn from
the domination of that will (of the common sovereignty), nothing
remained to bind them but mutual affinities. No will could be su
perimposed over the will of the others; the right of each was equal

290
to the right of the others. Legally they stood like isolated elements
out of which free nations must be constructed.
"That right of organization did not depend upon the name which
the territory might have borne under the ancient regime. Whether
known as a Viceroyalty, as were Santa Fe and Peru, or a Captaincy
general, as were Venezuela and Chile, or a Presidency, as were Ecu
ador and Charcas, or Gobierno, as were Guayaquil and Jaen, it
possessed the right to mold its own destiny, constituting itself inde
pendently, as did Peru and Chile, or confederating, as did Colombia,
Ecuador and Venezuela, or annexing itself, as did Guayaquil to
Colombia and Jaen to Peru.
"Free nations formed themselves in South America, and this was
but natural and just in accordance with the expressed or tacit
volition oi the territories which had become independent, whatever
may have been their hierarchical-political degree under the colonial
regime. "The American principle of titles of 1810 does not affect that
natural right of organization belonging to such territories. Its
exclusive aim is to afford a means of determining the extent of
the soil belonging to each free nation, in accordance with dimensions
corresponding to the territory or territories constituting that nation,
in conformity with the demarcations made by the sovereign and in
force in 1810" (D. M. P., vol. II, pp. 28, 59, 60).

CHAPTER X.
Principles of International Law.
(Possession and Recognition.)
Summary: L The principle of "continuous possession for a long period of time."—
1. Possession in itself ;jus et favor possessionis. — 2, Possession
as a means of acquiring ownership ; its conditions ; a ) legal pos
session ; b) long period of time ; c) absence of sufficient adverse
claim. — 3. Possession confirmatory of ancient rights, and origi
native of others.
II. Recognition of the personality of the state in international relations. —
1. The doctrine of the publicists. — 2. Peru's treaties with Colom
bia (1822) and Ecuador . (1832).— 3. Treaties of Ecuador and
Peru with Spain. — 4. Pontifical recognition of Peru's sovereignty
in Maynas. — S. Peru's treaties with Brazil.
§1. The Principle of "Continuous Pos
session for a Long Period of Time."
i) Possession in Itself; "Jus et Favor Possessionis." — Peru
has continued in possession of her provinces of Tumbes, Maynas
and Jaen from the time of her birth as an independent state down
to the present day. Is that possession worth nothing? All the
writers on international law agree in recognizing the importance of
the possession cognizable by that law, and even go so far as to
regard such possession as of greater importance than that cog
nizable by the civil law, for the reason that the injuries resulting
from its disturbance are greater, and, in default of a common
coercive power, a greater respect is due thereto.
Those writers who concede to possession under international law
a lesser degree of effectiveness in the acquisition or loss of owner
ship, such as Kluber, Brie and Georges Frederic de Martens, recog
nize the rights and advantages (jus et favor possessionis) derived
from possession in itself, according to the Roman tradition with
respect to the preservation of the status quo, so long as ro better
title is set up, or war is not declared in due form.
We have already seen that those benefits were, according to the

292
Institute, that of continuing legally in possession; that of casting
the burden of proof on the claimant, and that compelling a decision
of the matter in litigation, in case of doubt, in favor of the party
in possession, provided, however, that such party shall not have
taken possession of the property by violence, or possessed himself
thereof clandestinely or by the sufferance of another, and, as that is
the situation in which Peru finds herself, it is clear that she at
once profits by those benefits resulting from the jus et favor posses
sionis. 2) Possession as a Means of Acquiring Ownership; its Con
ditions. — The great majority of the authors (such as Grotius, Puf-
fendorf, Phillimore, Vattel, Wheaton, Calvo, Bluntschli, Fiore, etc.)
admit that prescription is cognizable in international law, either by
analogy to civil prescription, or as a special prescription, or as in
voking principles of justice, or for mere convenience. Even those
who with more insistence defend the rights of ancient ownership,
also recognize the influence of time in legal life, and the necessity
for putting an end to fhe uncertainty of ownership by whatever
mpans may be available for the settlement of international disputes,
including war.
Without entering into an examination of that question in its
purely theoretical aspect, we ought, however, to state that Peru's
position unites the conditions most commonly exacted for prescrip
tion, and that they confirm the rights so solemnly based on the prin
ciple of colonial uti possidetis and the sovereignty of the peoples.
Those conditions are: legal possession, the great lapse of time,
and the absence of sufficient adverse claim by the alleged owner.
a) Legal possession. — Time is of such importance, and so neces
sary is the fixing of a rule in order to insure the peace of the peo
ples, that international law goes so far as to ignore the origin of
possession in considering it as a means of acquiring ownership.
Vattel said : "If it were possible to go back to ancient times, there
would be few sovereigns who would be secure in their rights and
peace could not be hoped for on earth." "What public rights, boun
daries and possessions," asks Heffter, "could resist an exhaustive
examination into the merits if they were not exempted therefrom
by the judgment of history?" Bluntschli says that state of facts
brought about by violence "is transformed by time into a legal
status," and Frederic de Martens expresses the idea as follows:
"The influence of time and the sanction of history impose silence

293
on all actions for recovery, and all impeachments of title justifiable
on the ground of possession by violence and wrongs committed on
the occasion of an augmentation of territory. * * * The act
consummated, and shrouded in an immemorial antiquity, becomes
valid in contemplation of international law."
But we are not dealing, in the present case, with possession ac
quired by illegal or violent means, but with that which has never
been the subject of doubt under the common law as far as pre
scription is concerned — a possession under just title, and in
good faith, and he}d to be legal — the possession enjoyed by Peru in
Maynas, by virtue of the Royal Decree of 1802 and the principle
of colonial uti possidetis, and in Jaen, as a result of the royal order
of 1784 and the voluntary incorporation of its peoples at the very
moment of their emancipation.
b) Long period of time. — The great majority of the writers in
sist that possession is confirmed by time immemorial, though not
defined. Some, however, such as Savigny, construe immemoriality
to be two generations, because of the possibility of securing the
direct testimony of the present owner from his own knowledge and
from that acquired from his predecessor. Other writers, such as
Fiore, David Dudley Field, Bourgeois and Renault, prescribe the
period of a half century. And, since no definite term has been
reached by common accord among the nations, as was proposed by
Vattel, it would seem that the interpretation of the expression
"long period of time" must be left to the judgment of those before
whom such disputes are brought for decision, in the light of the
particular circumstances and conditions surrounding the point at
issue. Peru's possession in Jaen and Maynas dates from 1821, the year
in which she was born as a state, conjointly with Jaen, which was
incorporated with her the same year, and also with Maynas, which
had already been a dependency of the Viceroyalty of Lima since
1802. More than a century has passed, then, during which Peru has
been in possession of Maynas, and her possession, as a sovereign
state, of Maynas and Jaen, has continued through a period of
eighty-six years, or during1 her entire life. Hers is, therefore, a
possession ab initio; it would be impossible to exact from her one
of longer duration.
As to the absence of possession on the part of Ecuador, that also
is coextensive with her life, or from her birth in 1830; and, since

294
she holds herself forth as the heir of Colombia, there may be
added to that period the ten years of the latter's existence^ during
which she was not in possession of Jaen or Maynas.
Lately Ecuador has attempted to perform acts of possession in a
certain locality in the northwestern part of the Amazonas region,
after the present arbitration had already been agreed to, and doubt
less in the belief that she could by that means make a showing be
fore the arbitrator under more advantageous conditions. She estab
lished a detachment of twenty soldiers at Aguarico, which she
pompously called a garrison, but which had to be supplied with
provisions from Iquitos; and, because the Peruvian authorities in
terfered, Ecuador protested, characterizing that interference as a
"blockade" (bloqueo). She sought to spread out along the Napo
as far as Angoteros (1903) and Torres-Causana (1904), and the
few soldiers composing the expeditions were put to rout or made
prisoners. What value could such attempts have, when made pend
ing a decision in the present arbitration — and frustrated as they
were besides — in destroying the efficacy of Peru's constant and long-
continued possession of what had been the Comandancia general
of Maynas?
c) Absence of sufficient adverse claim. — From the careful his
torical statement we have made respecting Peru's relations with
Colombia and Ecuador, it is clear that no claim in the nature of an
action for restitution has been made by either of the republics.
Bolivar governed the provinces of Jaen and Maynas as integral
parts of the Peruvian nation, and, when Peru broke with him, al
though their names and that of Guayaquil figured in the war mani
festo — due, however, to other causes — and that war was brought to
a close after its first stage by the Giron convention of 1829, it was
agreed therein that Guayaquil should be restored by Peru, and noth
ing was said as to Jaen and Maynas ; Colombia occupied the posi
tion of having been completely restored to her territory. Nor was
mention made of those provinces in the definitive peace treaty of
that same year.
Ecuador comes into being in 1830 and recognizes the state of
Peru by the treaty of 1832, as it was then constituted, without any
reservation whatever. — ^^
Occasionally Ecuador speaks of restitution in diplomatic nego
tiations undertaken for the settlement of boundaries; but it is ap
parent that this is done for the purpose of securing greater ad-

295
vantages in the settlement, and, that when the proposal for com
promise is formulated, nothing is said about the restitution of those
provinces. And that constant silence concerning those provinces at the mo
ment of signing the treaties and agreements — that is, on the oc
casions when protest would be essential to remedy the alleged
illegality of the possession — is equivalent to assent on the part of
Ecuador to the Peruvian possessory status. And Mably says that
prescription operates "by the silence of the injured party when that
party is dealing with a prince who possesses that which belongs to
him, or sells, cedes or alienates it; silence on those occasions is
equivalent to consent."
3) Possession Confirmatory of Ancient Rights and Originative
of Others. — Continued possession for a long period of time is not
only effective in the acquisition of ownership, but also possesses
the virtue of confirming ancient rights and creating new ones.
With possession the jus merce facultatis becomes a reality; the
right takes on a plastic form, "the exteriority," of which Ihering
speaks. The proof thereof, Boeder says, is reinforced as the bonds
which unite the peoples are drawn tighter and their sovereignty is
consolidated by means of its continued exercise. This is what has
occurred in the province of Jaen, already united with Peru in cus
toms, relations and affections at the close of the colonial epoch,
united also during the war of independence, and which, from the
moment of its voluntary incorporation, has made Peru's social and
political life her own, being constantly represented in her Con
gress and participating in her glories and misfortunes. Is it pos
sible to break those ties and efface that history of eighty-six years,
during which the volition expressed at the time of the incorporation
has been persistently ratified and the sentiments arising from the
possession of a common country continually strengthened ?
The towns of the ancient Comandancia general of Maynas, gov
erned by the Viceroyalty of Lima down to the last moments, and
which struggled side by side with the insurrectionary government,
which have been and now are represented in the Peruvian Con
gress, have grown and developed — some of them considerably, such
as Iquitos — under the administration of Peru during those eighty-
six years. And during that period also the efforts of Peru have
resulted in the foundation of towns, in the organization of admin
istrative systems, in the extension of civilization, and in the increase

296
of wealth, in territories heretofore deserted or sparsely populated,
both to the south and to the north of the Maranon, bringing into
existence thereby new relations and new rights. Do those efforts
and that course of civilization, and the social, legal and political
bonds that have been established stand for nothing? Certain it is
that there still remains much to be done in the Amazonas region,
but international law, which in general recognizes in states occupy
ing nullius territories the right to pursue the work of populating and
civilizing, and especially in the American republics by reason of
their vast unpopulated dominions, cannot deny that right to Peru,
seized as she is by perfect title, to wit, the Royal Decree of 1802,
invigorated by the principle of colonial uti possidetis, as proclaimed
by the Spanish-American states.
§11. Recognition of the Personality of
the State in International Relations.
i) The Doctrine of the Publicists. — It is a current doctrine
of international law that the recognition of the existence of the
state implies the recognition of its personality as it appears to be
constituted, together with all the rights inherent in that personality,
in the foreground of which is that of sovereignty over the terri
tory, considered as one and indivisible.
International law, says Bluntschli, does not create states but ad
mits them as formed, respecting the results of their history. The
admission of a new member into the family of nations is accom
plished through its recognition by those already existing. "The
formation of a new state carries with it the formation of a new
territorial sovereignty," which is "the application of the sovereignty
to the territory," being "the sovereign consequence necessary to the
very existence of the state" (Le Droit International codiAi, Arts.
28, 29, 276 and 291).
International law, as is also said by Fiore, applies to states without
regard to their origin or formation. As a new state is formed and
enters into relations with other states, it enters on the enjoyment
of all the rights pertaining to any of the others, one of which is
the exclusive right of sovereignty over the persons forming part
of the actuality of its political organism, and also over the terri
tory made up from all the regions inhabited by the peoples who
have accorded recognition to the same supreme authority (Tratado

297
de Derecho International publico, vol. 1 and Dictamen — Opinions —
among those contained in M. P., p. 201).
And Carlos Heimberger expresses himself in the following
terms :
"The whole system of the existing states rests upon the recip
rocal recognition of each one of them, * * * and, as the na
tional territory is an essential element of the state, the recognition
of the state carries zvith it the recognition of its territory; and, as
that territory is, by its very conception, one and inseparable, the
recognition of a state signifies the recognition of its territory in its
entirety, without any consideration whatever of the historical man
ner of its formation or acquisition. * *. * International recog
nition is, then, the legal basis on which is founded the entire posses
sions of the states recognized; the manner in which each of the
parts of such possessions is acquired and the question whether it is
or is not supported by legal title is immaterial. * * * A more diffi
cult undertaking is the securing of recognition by a state aggrieved
by an act of violence, * * * but, when it is confirmed, and the
party dispossessed expressly or tacitly recognizes tfie acquisition,
confirmed against its will, of a territory which had belonged to it,
from that moment, and for all time, the possibility of doubt as to the
legality of possession is excluded" (cited with high approval by the
Marques de Olivart in his book, La frontera de la antigua Colombia
con el Peru, p. 313,).
2) Peru's Treaties with Colombia (1822) and Ecuador (1832).
— When Peru entered into her first treaty with Colombia, in July,
1822, she was already organized with her provinces of Tumbes,
Maynas and Jaen, forming, along with the others, a single
body politic and a single sovereignty. And she was in like manner
constituted when, in July, 1832, she negotiated her first treaty with
Ecuador, who had just made her debut in history.
By those treaties Colombia and Peru, and Peru and Ecuador
mutually recognized each other as independent states, together with
their respective territories, arid without any exceptions as to prov
inces — since, if such exception had been made, there would have
been no such recognition, or they would have expressly so stated —
leaving for special agreements the establishment of the exact boun
daries, that is to say, the act of delimitation, and not the principle of
territorial sovereignty over the provinces of which each of those
states was made up. And in that situation Colombia and Peru
remained, Peru and Ecuador likewise maintaining their mutual
relations.

298
As we have gone into all this extensively we shall not pursue it
farther, but simply recall, by way of additional evidence of recog
nition on the part of Ecuador, the fact of her having had a con
sulate at Iquitos, the capital of the Peruvian department of Loreto
(the ancient Comandancia general of Maynas), a consulate which,
among others, Ecuador abolished in 1905.
3) Treaties of Peru and Ecuador with Spain. — Article I of
the treaty of February 16, 1840, between Ecuador and Spain stipu
lates that "His Catholic Majesty * * * renounces forever, for
himself, his heirs and successors, in manner most formal and sol
emn, the sovereignty, rights and actions (acetones) which belong
to him over the American territory known by the ancient name of
the Kingdom and Presidency of Quito, and to-day, the Republic of
Ecuador." And, in Article 2nd, the treaty adds: "In consequence
of that renunciation and cession, His Catholic Majesty recognizes
the Republic of Ecuador as a nation, free, sovereign and inde
pendent, composed of the provinces and territories specified in the
constitutional act, to-wit, Quito, Chimborazo, Imbabura, Cuenca,
Loja, Guayaquil, Manabi and the Gallapagos Archipelago, and also
all other territories whatsoever legally belonging, or which could
belong, to the said republic of Ecuador."
The defence for Ecuador relies upon those articles in support
of tbe right possessed by that republic to all the territory of the
Presidency of Quito, and sets up the recognition by Spain in making,
in that treaty, renunciation and cession of her sovereignty over that
territory; but Ecuador does not take into account: 1st, that Spain
had already lost her sovereignty over that territority and could not,
nor was it her intention to, distribute the territories among the new
states as though they had continued under her colonial regime ; 2nd,
that, in speaking of the territory "known by the ancient name of
the Kingdom and Presidency of Quito," the treaty did not refer to
its extent when its Audiencia was created ; nor did the treaty annul
the Royal Decrees modifying the audiencia, and, 3rd, that, since she
was not a party to it, the treaty did not obligate Peru.
On the 24th of September, 1853, the Plenipotentiaries of Spain
and Peru signed a treaty, the first Article of which stipulates:
"Her Catholic Majesty * * * renounces forever, for herself
and her successors, in manner most formal and solemn, the sov
ereignty, rights and actions (acciones) which belonged to her over

299
the American territory known by the ancient name of the Vice-
royalty of Peru, to-day the Republic of Peru." Article 2nd stipu
lates: "In consequence of that renunciation and cession, Her Cath
olic Majesty recognizes the Republic of Peru as a sovereign nation,
free and independent, composed of the provinces, territories and
adjacent islands she to-day. possesses, and which formed the Vice-
royalty of that name, and all other territories belonging to her, or
which she may aggregate to herself hereafter."
But that treaty, recognizing Peru in terms similar to the recog
nition of Ecuador, was not ratified by Peru, because, among
other reasons, the words "renunciation" and "cession" of the sov
ereignty were regarded as inappropriate. The Peruvian Minister
of State said, in his note of December 12, 1853, to the Plenipoten
tiary at Madrid, that "the clause by which Her Majesty, the Queen,
renounces the sovereignty, rights and actions belonging to Peru is
offensive to us, in that it assumes that, without such renunciation,
we should not have been independent, and it is opposed to the real
condition of things and to the accomplished and existing facts" —
this even though the Peruvian negotiator, who was really in ac
cord with the treaty, as it did not signify that Spain conceded, but
that she recognised, the independence, made the observation that,
precisely for that reason, the treaty did not read "belong" to Spain
(as in the treaty with Ecuador), but used the word "belonged," that
is, having reference to time past. The truth is that that was one
of the causes leading to the rejection of the treaty of 1853 (Aranda's
Coleccion de Tratados, vol. IV, p. 117).
The treaty between Spain and Peru of August 14, 1879, con
signing to oblivion all that had passed between them, and establish
ing substantial peace between the two countries, had no reason at
the time to speak of the origin of the Peruvian state which had
figured for so long a time as an international personality perfectly
defined. 4) Pontificial Recognition of the Sovereignty of Peru in May
nas. — The Holy See recognized, in most positive terms, the sover
eignty of Peru in Maynas on the occasion when it acceded to the
petition of the Peruvian government for the reorganization of the
Bishopric of that name, and gave to it that of Chachapoyas, which
recognition was repeated in the eulogy of the bishops whom that
government had brought before it for the administration of the
diocese.

300
And we have already said that the Peruvian Congress, by the act
of July 29, 1831, provided that previous to the Pontifical authoriza
tion, the Bishopric of Maynas, preserving its ancient demarcation,
be known as Chachapoyas, and possess also the province of that
name, and that of Pataz, which belonged to the See of Trujillo.
His Holiness, Gregory XVI, after opening the appropriate can
onical proceeding, decided in favor of the request and erected the
Bishopric of Chachapoyas in the Bull Ex sublimi Petri specula
of June 2, 1843.
"Those who hold the supreme command in the provinces of
lower Peru," says that Bull, "present to us their humble supplica
tion that we shall be pleased to separate and dismember from the
Diocese of Trujillo the provinces called Pataz and Chachapoyas and
aggregate and incorporate them into the ancient Diocese of Maynas,
and transfer likewise the episcopal see of that diocese to the city
of Chachapoyas."
His Holiness erects the Bishopric of Chachapoyas for the rea
sons above set forth and adjudicates: "The city of Chachapoyas
itself and all the other places constituting until now the territory and
diocese of Maynas, as well as the territory at present constituting the
aforesaid provinces of Pataz and Chachapoyas, which we have here
tofore exempted and separated from the Bishopric of Trujillo and
its jurisdiction" (D. M. P., No. 105).
It is to be remembered that the Gobierno and Comandancia gen
eral of Maynas was coextensive with the Bishopric of the same name.
5) Peru's Treaties with Brazil. — We have also indicated that
Brazil, by joining in the treaty of October 23, 1851, recognized the
personality of Peru and her right in the Amazonas region.
In accordance with Article 7th of that treaty, which accepted the
principle of uti possidetis, there was established as the frontier "the
town of Tabatinga, and thence a straight line running north to a
point opposite the confluence of the Yapura river with the Apaporis,
and from Tabatinga southward along the Yavari river from its
confluence with the Amazonas."
Brazil has entered into other treaties and agreements with Peru
confirming the recognition of her personality and her sovereignty
over the Amazonas region; among them the diplomatic agreement
of September 29, 1876, referring to the navigation of the Putumayo,
is worthy of note.
In treating with Peru concerning the Amazonas territories and

301
rivers, the government of Brazil took into account the Royal De
cree of 1802, as stated by her representative, D. Miguel Maria
Lisboa in one of his conferences with the Plenipotentiary of New
Granada, D. Joaquin Maria Nacentes de Azambuja, the signer of
the agreement of 1876, in his memorandum addressed to the De
partment of Foreign Relations at Bogota. And to the declarations
of those two Brazilian diplomats must be added the following opin-'
ion rendered by Sr. Pereira Leal, also a Brazilian diplomat, in his
memorial on the boundary treaty between that country and Vene
zuela (1860): "If any of the republics of which Colombia was
formed could claim the right to contract with Brazil as to the boun
daries along the Yapura to its westernmost mouth, it would be
Ecuador, but only as of the period prior to 1802. At that time the
province of Maynas, and the towns of Quijos, extending in that
direction, ceased to belong to the Presidency of Quito and were
aggregated to the Viceroyalty of Lima, for which reason Peru only,
who is, besides, in possession of said territory, has been the party
legitimately entitled to treat concerning that territory" (B. P.,
p. 165).

CHAPTER XI.
The Powers of the Royal Arbitrator.
Summary:
I. The submission to arbitration and acceptance by the Royal Arbi
trator.
II. Questions submitted for decision. — 1. Memorial presented to the
Ecuadorian Congress by the Minister of Foreign Relations. — 2.
Statements made by the Plenipotentiaries of Peru and Ecuador
before the Spanish Government in the course of diplomacy. — 3.
Ecuador's demands in the arbitral proceeding. — 4. Peru's de
mands in that proceeding. — 5. Opinions by Bourgeois, Renault,
F. de Martens and P. Fiore. — 6. Our opinion on this point.
III. Criterion for the solution of the questions at issue. — 1. Strict law. —
2. No room for compromise.
§1. The Submission to Arbitration and
Acceptance by the Royal Arbitrator.
The question of boundaries between Peru and Ecuador having
been studied in the light of the history of the treaties and the prin
ciples of international law, we are now about to examine into the
powers residing in the Arbitrator for its decision, and shall begin
by disclosing the manner in which the arbitration was offered and
accepted. The arbitration is founded upon the arbitral convention signed at
Quito on the 1st of August, 1887, by the Plenipotentiaries of Peru
and Ecuador, and afterwards ratified by the respective Con
gresses, which ratifications were exchanged at Lima on the 14th of
April, 1888 (D. B. P., No. 1).
In accordance with Article 1st, "the Governments of Ecuador and
Peru submit said questions (the pending questions of boundaries)
to His Majesty, the King of Spain, for his decision as arbiter of the
right, definitively and without appeal."
The Peruvian Plenipotentiary, D. Juan M. Goyeneche, in the
name of his government, and acting also under powers conferred
on him by the Government of Ecuador, presented himself for the
purpose of soliciting His Catholic Majesty's acceptance of the arbi
tration. His Majesty deigned to accept, as stated in the note of

303
December 14, 1888, addressed by his Minister of State to the Pleni
potentiary. In that note the latter was advised that, conformably
to the request submitted, the arbitration was "to adjust the
question of boundaries pending between the two states" (B. P.,
p. 7). - On the 10th of December, 1889, the representative of Peru,
D. Jose Pardo y Barreda, presented to Her Majesty, the Queen
Regent, the Brief for that Republic "on the question of boundaries
with the Republic of Ecuador" (B. P., pp. 9 and 11).
By virtue of the provisions in Article 6th of the arbitral conven
tion, and at the instance of Ecuador, the governments of the two
republics entered into direct negotiations, which resulted in the
Garcia-Herrera proposal for compromise in 1890 ; and, pending the
legislative approval of that compromise, the Ecuadorian Minister
of Foreign Relations and the Charge d'affaires of Peru met at
Quito on the 9th of January, 1891, and agreed, at the suggestion of
the former, to request His Catholic Majesty to suspend his award
until the matter of the proposed compromise should be determined.
At that conference the representative of Peru stated that his gov
ernment had fulfilled the requirement of filing its brief with His
Majesty within the year agreed upon; and the Ecuadorian repre
sentative explained that, within that year also, in November, 1899,
his government had delivered to His Majesty's Ambassador at Paris
a statement wherein the appointment of a commission to effect
a direct settlement, was petitioned for ; but that that did
not signify, as had been supposed, a failing in respect for
the arbitration of His Majesty, in proof of which he would pre
sent, before the assembly of the Peruvian Congress, a further brief
destined to facilitate the decision of the Spanish Sovereign in case
he should be obliged to proceed with the arbitration. The two rep
resentatives agreed that, with the filing of the abovementioned state
ment of November 2, 1889, the arbitral proceeding should be under
stood as having been resumed "without prejudice, however, to the
right of Ecuador and Peru to amplify their first statements rat a
proper time" (D. M. P., No. 42). Ecuador, in 1892, filed with His
Catholic Majesty the further brief of which she had made an
nouncement. The direct negotiations broken off, the Governments of Peru and
Ecuador, represented respectively by D. Mariano Cornejo and D.
Miguel Valverde, agreed at a conference held in Quito on the 19th
of February, 1904, to let the arbitration of 1887 proceed, and that

304
His Majesty should be requested to send a royal commissioner to
gather the necessary data, but that this step should not be held to
imply "any alteration whatever in the conditions established in the
treaty of 1887, and much less the renunciation or modification of
the titles or of the petitions and briefs filed with the Royal Arbi
trator by the two parties." At that conference reference was made
only to settling "the controversy over boundaries" between the
two republics without specifying the questions or defining the pow
ers of the arbitrator.
The Spanish Minister of State replied on the 27th of April, 1904,
to the notes addressed to him by the Ministers of State of Peru and
Ecuador as follows :
"I have the honor to inform your Excellency that your very
courteous note of the 14th of March last reached my hands simul
taneously with the note, identical in terms, addressed to me by i le
Minister of Foreign Relations of Ecuador on the 19th of February
ultimo, both of which notes state that, by virtue of the stipulations
in the protocol signed at Quito on the 19th of February of the
present year by the representatives of the two republics, their re
spective governments have agreed to request His Majesty to be
pleased to continue the arbitral proceeding confided to him by the
convention of 1887 for the final solution of their pending differ
ences in the matter of frontier boundaries, and which, on the de
mand of the parties, has been suspended since 1891. * * * In
reply it gives me much satisfaction to announce that His Majesty
* * * will gladly devote himself to the fulfillment of the hon
orable mission entrusted to him" (D. M. P., No. 48).
The arbitral proceeding resumed, both parties filed their Final
Memorials setting forth their respective claims.
Before reaching a decision as to the basis of the matter, the Royal
Arbitrator must examine into the powers with which he is invested,
and determine what are the questions submitted for his decision, and
the criterion for their solution in accordance with the terms and
spirit of the arbitration.
§11. Questions Submitted for Arbitral
Decision.
The arbitral convention of 1887 opens with a paragraph saying:
"The Governments of Ecuador and Peru, desiring amicably to put
an end to the questions of boundaries pending between the two

305
nations. * * * " And further along in that paragraph, Ar
ticle 1st: "The Governments of Ecuador and Peru submit said
questions to His Majesty, the King of Spain * * * »
Let us see what those pending questions are as set forth in the
declarations of the parties in interest, in the claims formulated in
their briefs and memorials, and as developed in the history of the
case. i) Memorial Presented to the Ecuadorian Congress by the
Minister of Foreign Relations. — In the memorial presented to the
Congress of his country on the 10th of August, 1904, concerning
the status of the country's foreign affairs, the Ecuadorian min
ister of Foreign Relations, D. Miguel Valverde, ' reported the re
sumption of the Spanish arbitration of the questions pending with
Peru, and said that the rights of Ecuador rested on the immovable
basis of fhe treaty of Guayaquil of 1829 ; that the question of boun
daries in the eastern region, from the Brazilian frontier to the con
fluence of the Chinchipe with the Marafion, had been finally settled
in accordance with that treaty, leaving open, relatively speaking,
only the question of boundaries from that last mentioned point to
the Pacific ocean, and that "the Amazonian frontier, having been
determined upon, is not submitted to the arbitration of His Majesty,
the King of Spain, under the terms of the convention of 1887."
The defence for Ecuador, he added, has not made that very evident
distinction until the present moment; but it is necessary that it
should be established, to the end that "the Royal Arbirafor may
know that between Ecuador and Peru there are pending no other
questions of boundaries than those referring to the ancient terri
tories of Jaen and a part of Maynas, from the mouth of the Tumbes
river in the sea to the disemboguement of the Chinchipe in the Ama
zonas." In its executive sessions of September 23rd and 24th, 1904, the
Ecuadorian Congress limited its action to resolving that the Min
ister's assertion should be taken only as a text for argument with
Peru, without permitting it to derogate from the full legal claim
originally made by Ecuador, and constantly adhered to (D. M. P.,
No. 52).
The Minister's statement, therefore, did not seem to the Congress
to be sufficient, but it clearly indicated that the question of bound
aries was not, in its judgment, based upon the terms he had sup
posed were agreed upon. The truth is that the protocol of February

306
19, 1904, which Minister Valverde himself had signed, did not
mention the imposition of any such restriction on the arbitrator.
2) Declarations of the Plenipotentiaries of Peru and Ecuador
before the Spanish Government in the Course of Diplomacy. —
The Minister Plenipotentiary of Peru, the Most Excellent Sr. D.
Felipe de Osma, in a note addressed to the Spanish Minister of
State on the 12th of November, 1904, informed the latter that, at a
conference held on the 3d with the Ecuadorian Plenipotentiary, he
had stated, in the name of his government, that "the object of the
arbitration is to decide to which of the two sovereignties belong the
territories claimed exclusively by Peru and by Ecuador, and, conse
quently, to establish the whole of the frontier line between the two
States." The Spanish Minister of State replied that he had received from
the Ecuadorian Plenipotentiary a note bearing the same date.
"Moreover," he said, "inasmuch as in the latter the conditions under
which the arbitration must proceed are not specified, as they are in
your Excellency's note," I am sending him a copy.
A few days later, on the 21 st of November, 1904, the Peruvian
minister Plenipotentiary addressed to the Minister of State the fol
lowing note: "In accordance with Your Excellency's desires, I have
the honor again to address myself to Your Excellency, as I do at
the same time to the Most Excellent Envoy Extraordinary and
Minister Plenipotentiary of Ecuador, to inform you that the con
ditions of the arbitration of right agreed upon in 1887 have not been
modified, and that all the questions of boundaries pending between
the two nations continue under submission to the Royal Arbitrator,
since the protocol of February 19th of the present year, in which
the Governments of Peru and Ecuador agreed to request His Maj
esty to resume his cognizance of the proceeding, and deign to send
the commissioner referred to in the notes of the two governments
addressed to Your Excellency on the 14th of last March, declares
that that does not imply any alteration of the conditions established
in the treaty of 1887 above referred to, and much less the renuncia
tion or modification of the titles or the briefs filed with the Royal
Arbitrator by the two parties ; that the protocol was subscribed with
the understanding that the petition for the appointment of a com
missioner does not in any manner affect the powers belonging to
the Royal Arbitrator to pass such orders as he may deem proper
to elucidate the rights in controversy."

307
As a similar note was sent in by the Plenipotentiary of Ecuador,
there can be no doubt that the arbitration thereby became definitely
established by the concurrence of the parties.
The Spanish Minister of State made this clear in his reply of
the 23d, acknowledging receipt, as follows: "I have the honor to
inform Your Excellency that I have received your esteemed note
of the 21st instant, in which you are good enough to inform me
that the conditions of the arbitration of right agreed to in 1887 have
not been modified, and that all the questions of boundaries pending
between the two nations continue under submission to the Royal
Arbitrator" (D. M. P., No. 55).
3) Ecuador's Demands in the Arbitral Proceeding  Once
more in this arbitral proceeding Ecuador has formulated her various
demands. According to the statement filed in 1892 by D. Pablo Herrera,
the functions «of the arbitrator would be reduced to a carrying out
of the Guayaquil treaty of 1829, which, in its sixth article, obligated
the Governments of Ecuador and Peru to appoint the mixed com
mission to survey, rectify and fix the divisionary line in accordance
with the stipulations of Article 5th, taking as a basis the royal de
crees .creating the audiencias and viceroyalties, but ignoring that
ai July 15, 1802. In D; Honorato Vazquez's memorial on the facts
ahd law, which is. made an integral part of that statement, the same
clfemand is made. The divisionary line is actually set, and the author
adds that the two governments can regularize that line by making
mutual concessions, "observing in other respects the treaty of
1829 for the establishment of the demarcation of frontiers."
In her Final Memorial Ecuador demands the fulfilment of the
supposititious Pedemonte-Mosquera protocol under which nothing
remained pending but the question of Jaen.
4) Peru's Demands in this Proceeding. — In her Brief Peru
asks for an advance ruling on the point of her rights with respect
to the territories on the basis of the colonial uti possidetis, manifest
ing her willingnes to relinquish her claim to Guayaquil in exchange
for Ecuador's recognition of her title to Jaen, and maintaining
that the boundaries of those territories should be the same possessed
by the viceroyalties at the moment of independence, and demands
the establishment of the divisionary line in accordance therewith.
In her Final Memorial she asks that Ecuador's demand for resti
tution be rejected in express terms, and that the frontier be fixed in

308
Conformity with the divisionary line asked for in the brief. Pre
ceding that demand appear various statements, among which we
make note of the following (M. P., vol. IV, p. 154) :
3d. That this action shall be decided with exclusive attention
to the general principles of right, with the compacts existing be
tween Ecuador and Peru, and with colonial law resorted to solely
as a means of determining the extent of each of the boundary prov
inces. 4th. That Peru accepts the principle of colonial titles, in absolute
independence, however, of the treaty of 1829 — as a principle of
delimitation exclusively and not as title to restitution. * * *
5th. That the claim of right to examine into the legality of her
organization (as a state composed of provinces that freely entered
into its formation) is repugnant to the independence of American
nations. 6th. That, on their mutual recognition, the two states were
recognized with the provinces held by them, and,
7th. That in Peru's opinion the powers of delimitation conferred
by the boundary arbitration may not be so extended as to change the
nationality which was freely chosen by the colonial circurriscriptions
calling themselves Jaen, Guayaquil, Tumbes and Loreto.
5) Opinions by Bourgeois, Renault, de Martens and Fiore. —
Having been consulted by Peru, these eminent publicists have sub
mitted the following opinions on the question with which we are
occupied (volume of Legal Opinions filed with the Memorial of
Peru): Leon Bourgeois and Louis Renault, members of the Permanent
Court of Arbitration at the Hague, are of opinion that the arbitral
convention of 1887 arose as a result of the attempt of Ecuador to
cede to an English company a vast territory located in Maynas ; that
the principle of delimitation is distinct from the principle of organi
zation of states; that the claim of Ecuador would tend, not to
delimit her territories, but to dismember and take from Peru entire
provinces that have formed parts of that state ever since its con
stitution. "Is it conceivable that an arbitration could have such
scope? What state would consent to submit to a judge, whomso
ever h/ might be, the consideration of the conditions under which
it was* formed, the legality of the incorporation of such and such of
its provinces? And, further, what arbitrator would accept the re
sponsibility of a decision freighted with such consequences? * * *

309
If, in a proceeding brought for the delimitation of boundaries, such
an issue could be foreseen, it would be singularly hazardous to re
sort to international arbitration" (Ibid., pp. 132-143).
Frederic de Martens, also a member of that permanent court,
says: "It is evident that i-lie issue before the August Arbitrator in the
present arbitration is the determination of the boundaries left unde
fined between the present possessions of the parties litigant. It cer
tainly is not the object of the arbitration to take from either of the
parties its territorial possessions, or to adjudge certain possessions
to either, to the detriment of the other. The arbitration should
fix the line of demarcation between the present possessions of the
two states; but it is not called upon to offer to one party, as a
gratuitous gift, the territories possessed in fact and law by the
other. From this point of view, it seems to us absolutely necessary
for the arbitrator to take into consideration the conditions under
which the contracting parties have constituted and developed them
selves. The arbitrator is not called upon to consider and adjudicate
on the constitution of the states, or as to their sovereignty, or even
their titles to territorial possession, considered in conjunction with
each other. His natural g.nd legal function is limited to determining
the line of demarcation ™fiic( c ight in the future to divide the ter
ritories of Peru and Ec,.:_ido , * * * without extinguishing the
rights of territorial :iovc'"i' ,ty conferred by the uti possidetis and
the principles of into rational law" (Ibid., pp. 165 and 166).
Pasquale Fiore mzr?t nns that, according to the principles of in
ternational law, according o the natural meaning of words and
according to historical prec; .lents, controversies between two states
ove, boundaries can refer to nothing but the delimitation of those
boundaries. According to international law, when treating of boun
daries, the right of each of the states to territory — considered uni-
versitas — which constitutes the basis of their sovereignty, may not
be gone into ; the arbitrator may only adjudge small parcels of ter
ritory located on the borders in order the better to fix the division
ary line. According to the natural meaning of words, boundary
signifies limits, confines, the line of separation or demarcation be
tween two contiguous or neighboring territories; this is also its
meaning according to historical precedents, because when it has
been desired to inject into an arbitration questions of territories or
territorial sovereignty, they have been expressly provided for.
"Throughout the history of arbitration," he adds, "it has never

310
occurred to any one to think that a constituted state submitting %
controversy over frontiers to a final arbitration, could have had in
mind to place in litigation its political organization and its rights
over territories in which it is actually exercising its high dominion.
History offers no instance in which a country submits to final arbi
tration the question whether it possesses the right to be a constituted
state, as formed by the course of historical events, or whether, on
the contrary, it ought to be dismembered and stripped of im
portant and considerable territory that may become the property of
a contiguous state under the pretext of a rectification of frontiers"
(Ibid., pp. 183 et seq.).
6) Our Opinion on this Point — There can be no doubt that
Ecuador's attempt, in 1887, to carry out her projected agreement
of 1857 with the holders of her foreign indebtedness, by which she
was to cede in payment the lands of Canelos, was the cause of the
arbitral convention of August 1, 1887.
Shortly before signing that convention, on the 13th of July,
the Ecuadorian Government informed the English company that
all action in the matter had been suspended in consequence of the
protest made by Peru, on the ground that "the territory of the two
republics had not been defined." Ecuador promised to procure the
demarcation as soon as possible, to which end she proposed to the
Peruvian government "the negotiation of a boundary treaty or the
submission of the matter to the arbitral decision of an impartial
government, such, for example, as Spain" (D. M. P., vol. VII, app.
14). It is disclosed, then, by the declaration of Ecuador, that there
existed for her at that moment no other necessity in the boundary
question than that of making the delimitation by means of a treaty,
or by submitting the matter to arbitration, in order that she might
know whether or not she could dispose of those lands.
As much for that reason as because the two republics continued
in the same most cordial relations — reciprocally respecting the boun
daries they had possessed since their mutual recognition as states —
L'eru has asserted in her Final Memorial that "the questions that
must he settled are those left pending by the rejection of the treat\
of 1860 — that is to say, whether Ecuador has or has not the power
to alienate Canelos" (Ibid., vol. Ill, p. 111).
We believe, nevertheless, that if the arbitral agreement had hem
confined to the Canelos affair, it would have been so express! '
stated, when, in adopting the expression "pending questions of boun-

311
daries," it included all those not definitively settled. And the
Royal Arbitrator so understood when he accepted the mission. He
speaks only of "the pending questions of boundaries," or, in singular,
the question of boundaries, which embraced in general all the special
questions, even using the very word all as in his note of November
23, 1904.
Precisely because the treaty of 1860 was not ratified it remained
the subject of agitation, as did the treaty of July 12, 1832, article
14th of which stipulated that "while an agreement for the settle
ment of boundaries is being negotiated between the two states, the
present boundaries shall be recognized and respected."
Therefore, that settlement of boundaries between the two states
has not been effected, and, since it has not been made, that is the
settlement which is pending, the parties having agreed, in 1887, that
it shall be undertaken by the Royal Arbitrator, in accordance with
the right, since they had failed to come to an understanding there-
asto by direct negotiation, either on the merits or in the -field of
compromise. The pending question of boundaries is, then, the question
of the settlement of boundaries. If the arbitral agreement speaks,
in the plural, of pending questions, it is because various questions
are included therein, resulting from the fact that as the divisionary
line has various sections, the settlement of each requires the appli
cation of special considerations.
Ecuador believes that the boundary question stands decided by
the treaty of 1829, entered into between Peru and Colombia, and
the supposititious Pedemonte-Mosquera protocol of 1830. But as
nothing was said to the arbitrator, in arranging the conditions
for the arbitration, either as to that treaty or as to the protocol,
the arbitrator may not hold them to be a limitation of his powers,
but rather the foundation of Ecuador's claim, which he must con
sider according to its weight, as would be done by a judge with re
spect to the claims set up in any law suit.
Moreover, Peru conceives that in her demands Ecuador over
steps the bounds of the arbitral proceeding, since by making it an
action for restitution, the question of territorial sovereignty becomes
involved in that of boundaries. The eminent publicists Bourgeois,
Renault, Frederic de Martens and Fiore, of whom three are members
of the Permanent Court of Arbitration at the Hague, and all of
whom are recognized authorities on international law, assert posi-

312
lively that an arbitration over boundaries, by its very nature, may
not vary the status of states, or transfer provinces from one to
another, nor may it pass from one to another any hut such small
parcels of land as may be necessary to regularize the frontier.
Yet it is evident that the Arbitrator can fix the boundaries
between Peru and Ecuador only by derogating from the rights
possessed by one or the other state over the territorial confine-: to be
delimited. What is the arbitrator's status in such a situation? S i<iy he
must first decide whether in his judgment he is to determine the
question of ownership or proceed in accordance with the hypothesis
that it has already been determined; or else he must declare himself
incompetent to proceed with the arbitration, unless he considers,
as we conceive the case to be, that he is empowered by the parties
to make such findings as to territoriality as may be necessary to
solve definitively the question of boundaries submitted to him by them.
It is clear that Ecuador, from the moment she makes claim to
territories possessed by Peru, recognizes the jurisdiction of the ar
bitrator to decide to whom they belong.
With respect to Peru, the Arbitrator must hold with the follow
ing declarations as to the points in litigation.
In the prayers attached to her Brief of December 10, 1889, she
asks the arbitrator to find: 2d, that to the Viceroyalty of Peru be
longed, (a) the territories of the Comandancia general of Maynas,
conformably with the disposition made by the Royal Decree of
1802, (b) the territories of the District of Piura, in the Intendency
of Trujillo, (c) the territories of the Gobierno of Guayaquil. She
accepts the compensation of Guayaquil for Jaen, and asks in con
clusion that the divisionary line be established along the points
mentioned therein.
In the note addressed by the Peruvian Minister Plenipotentiary
to the Minister of State of Spain on the 12th of November, 1904, it
was made clear, as we have said, that in the conference referred to,
fie had stated in behalf of his government, that "the object of the
arbitration is to decide to which of the two sovereignties belonged
the territories claimed exclusively by both Peru and Ecuador, and
consequently to declare the entire line of the frontier between the
two states."
In her Final Memorial of June 1, 1906, Peru states: "By the
character of Arbitrator juris cast upon your Majesty it is shown

313
that the parties being unable to arrive at a compromise as permitted
by the treaty itself (the arbitral convention of 1887), ask for a de
cision of strict right, to be based on the two points in controversy:
1st, whether there is any foundation in justice in Ecuador's claim
that Peru should deliver over tc her the provinces of Tumbes, Jaen
and Maynas, with which she has been constituted since the inde
pendence, and, 2d, as to the geographical line that ought to separate
the provinces indicated from the contiguous Ecuadorian provinces"
(vol. Ill, p. 143J. And in the prayers of the memorial the arbi
trator is asked "to reject, in express terms, Ecuador's demand for
restitution and to fix the frontiers of the boundary provinces" (vol.
IV, p. 155).
The question of right on the part of Ecuador concerning the
provinces of Tumbes, Jaen and Maynas, being, therefore, at issue,
and the arbitrator having been asked by Peru to determine whether
"there is any foundation in justice" in the claim to those provinces,
and to reject Ecuador's demand for restitution in express terms,
the Arbitrator not only has the power to make the findings prayed
for, but it is his duty so to find, and with so much the more rea
son, for otherwise the divisionary line could not be established.
We believe, therefore, that the award should be made up of two
parts: one declarative, with respect to the questions of law raised
in the proceeding by the claims formulated by the litigant states,
and as to which decision is necessary to settle the question of boun
daries ; and the other conclusive, establishing that divisionary line.
From the geographical point of view the question of boundaries is
divided into three parts: that of Tumbes, that of Jaen and that of
Maynas, not taking into account that section of the frontier formed
by the Macara river, because the parties on that point are agreed.
§111. Criterion for Solution of the Ques
tions at Issue.
i) The Strict Right. — The arbitral convention of August 1,
1887, provides positively, in its first article, that the question sub
mitted to His Majesty the King of Spain must be decided by him
"as Arbiter of the right." The arbitrator, therefore, can resolve them
under no other criterion than that of right. If any doubt arises on
this point, it can be dissipated only by comparison of the proposals
for treaties put forth as a result of the direct negotiations under-

314
taken in accordance with Article 6th, the failure of which brought
about the return to the arbitration juris.
The supplemental arbitral agreement, signed at Lima on the 15th
of December, 1894, by the Plenipotentiaries of Colombia, Peru and
Ecuador, provided in its first article: "Colombia acquiesces in the
arbitral convention between Peru and Ecuador of August 1, 1887,
ratifications of which were exchanged at Lima on the 14th of April,
1888 ; but the three high contracting parties stipulate that the Royal
Arbitrator shall decide the questions material to the dispute upon
the consideration, not only of the titles and arguments of law
which have been presented, and which may be presented to him,
but also of the accommodation of the contracting parties so con
ciliated that the frontier line may be founded in law and equity"
(D. M. P., No. 43).
On the disapproval of that agreement, the parties returned to the
convention of 1887, making no modifications therein whatsoever,
and consequently returned to the criterion of strict right, unweak-
ened by considerations of accommodation and equity.
That arbitral convention of 1887 leaves the arbitrator at full
liberty in his application of the law, uncontrolled by any basis
whatever. We have already stated the principles that in our judg
ment ought to govern the arbitrator in his consideration of the ques
tions submitted for his decision. His Majesty the King of Spain,
solely by virtue of the fact that he has been appointed arbitrator of
the right, and with no limitations whatever, enjoys under that con
vention the same freedom conferred on His Majesty the King of
Italy by the arbitral convention of November 6, 1901, for the settle
ment of the boundary question between Great Britain and Brazil,
which in its fourth article stipulates that: "In deciding the ques
tion submitted .to him, the arbitrator shall confirm all the facts he
may consider necessary to examine in the settlement of the con
troversy, and shall be controlled by the principles of international
law he may deem applicable to the case."
2) No Room for Compromise. — The present arbitration being
one of strict right, the arbitrator may not proceed to compose ami
cably the differences before him : nor may he take into consideration,
as precedents, the proposals for compromise — this not only because
those proposals were not carried out, but because the compromises
responded to the accommodation of the parties, which could only
be estimated by the interested parties themselves, with reference to

315
their situation, the desire to avoid further injury, the circumstances
and the times.
To confirm their explanation, we need not restate the history of
those proposals for compromise which have been a part of the
diplomatic negotiations of Peru with Colombia and with Ecuador ;
we limit ourselves to the statement that they were never approved
or duly carried out and to quoting what Peru's Final Memorial
has to say on that point :
"Peru cannot accept today a compromise depriving her of prov
inces and territories constituting, actually and not theoretically, the
most vital part of her nationality. This is so true that the Garcia-
Herrera compromise, although much better than the Colombian
proposals of 1829, was not accepted by the Congress of Peru in
1893. Furthermore, thanks to the expenditure of Peruvian money,
from 1893 to 1905, a period of twelve years, the development of the
east (Maynas), has been immense; so that even the compromise
line suggested by the Peruvian Congress in 1893, and much more
advantageous than that of the Garcia-Herrera treaty, would be to
day unanimously and peremptorily rejected. This is the reason
why at present no compromise can be thought of except in the ap
plication of strict right. Peru, who, in 1894, resigned herself to
equitable arbitration, surely wouldnot accept it to-day. The absolute
integrity of her right is necessary and she asks for it ; any limitation
of that right would be profoundly unjust, since by her efforts those
territories have become valuable" (M. P., vol. I, p. 235).

RESUME AND CONCLUSIONS.

RESUME AND CONCLUSIONS.

The Study of the Question of Boundaries between Peru and
Ecuador Concluded, I pass on to a resume at the same time as I
synthetise my opinions concerning the question, and, in order to make
my reasoning more concrete, adopt the form of "considerandos,"
as follows:

1st.
Considering that with a view to putting an end amicably to "the
pending boundary questions" between the Republics of Peru and
Ecuador, the governments agreed in the convention concluded at
Quito on the first of August, 1887, to submit "said questions to His
Majesty the King of Spain for his decision as arbiter of the right,
definitively and without appeal" : a convention called arbitral which,
once ratified by the respective congresses and the ratifications ex
changed on the 14th of April, 1888, became the common law for
both parties, which after acceptance of the arbitration by the Royal
Arbitrator on the 24th of December following, became the legal
basis of the present arbitration, and which, though suspended in
1891 at the request of the parties for the purpose of undertaking
direct negotiations, was resumed in 1904, on their petition, and with
the acquiescence of His Catholic Majesty.

2d.
Considering that the parties to the arbitral convention did not
specify what were the pending questions, either on the occasion
when His Majesty's acceptance of the arbitration was sought, or
subsequently, when he was requested to proceed therewith, it is left
wholly to the discretion of the Royal Arbitrator to determine what

320
questions have and what have not been settled ; that this is the more
true because, on the resumption of the proceedings, the briefs in
which each of the parties sought to resolve certain of the questions
in its own favor were already on file, and, notwithstanding the
Plenipotentiaries of the two countries, in notes of like tenor, ad
dressed on the 21st of November, 1904, to the Spanish Minister
of State, stated that the conditions of the arbitration of right agreed
to in 1887 had not been modified; that all the questions of
boundaries continued under submission to the Royal arbitrator, and
that the power was conferred on him to make such rulings as in
his judgment might conduce to making clear the rights in con
troversy; to which notes the Minister of State replied on the 23d
of the following month, also making it clear that the conditions of the
arbitration of right agreed to in 1887 had not been modified and that
all the questions of boundaries pending between the two nations
continued under submission to the Royal Arbitrator.
3d.
Considering that Ecuador, in her brief of 1892 — that is, the State
ment of Sr. Herrera, with its attached Memorial on the facts and
law — maintains that the general question of boundaries is decided
"in" the treaty of Guayaquil of 1829 and demands fulfilment of its
provisions; that, in her Final Memorial, she maintains that the
question was closed by the Pedemonte-Mosquera protocol, and that
only the determination of the Jaen frontier is left pending; which
assertions and claims, however, may not be taken into consideration
by the arbitrator as limitations on his powers, since they were not
imposed on the occasion of the agreement to and acceptance of the
arbitration, but were brought forward as the fundaments of the
rights and aspirations the party litigant formulates in the proceed
ing and submits for the consideration of the $udge.
4th.
Considering that the treaty of Guayaquil of 1829 may be invoked
in this litigation only as an historical antecedent of the question,
and not as a treaty exerting obligatory force or as a basis for its
decision: 1st, because international compacts obligate only the

321
states entering into them under mutual relations, one with the other,
and do not obligate other states, or when there is an absence of
mutuality in the relations, and the treaty of Guayaquil was entered
into by Peru with the first Republic of Colombia, and not with
Ecuador, who had not yet come into existence; 2d, because the
state of Ecuador was born in 1830 when Colombia dissolved and
was not made the heir of the latter before the dissolution; nor did
Ecuador so claim at the time of her formation by the union of
three of the departments of the defunct state which had declared
themselves independent, nor would their heirship, even if it
had existed by cession of the rights of Colombia, have been valid
so long as it was not recognized by Peru ; 3d, because even though
it is admitted that' on the dissolution of a state the facts accom
plished must be respected (for example, the boundaries already es-
tabbshed), or pending matters must be settled (e. g., the matters of
indebtedness), neither of these considerations applies in the present
case, since the treaty of 1829 did not resolve the question of bound
aries but left it pending upon conditions impossible to be fulfilled
by the state that disappeared, and with which the other had agreed
to" comply only because of its accord with the situation in which
both found themselves; 4th, because the treaty of 1829 was in itself
imperfect, in that it had not been approved by the Congress of
Colombia, as required by its constitution, when that republic dis
solved, and it is impossible to-day to fulfill that prerequisite which
Bolivar might have attended to by presenting the treaty for legisla
tive ratification in conjunction with the boundary agreement, as he
had thought of doing; 5th, because, even if the treaty of 1829 had
not lapsed through the demise of Colombia, it was annulled by the
treaty of 1832 between Peru and Ecuador, whereby the states recog
nized each other and agreed, without any mention whatever of the
treaty of 1829, to the preservatidn of the boundaries then possessed
by them until a special agreement, could be entered into, the Ecuado
rian Plenipotentiary having declared, before the signing of that
agreement, that he did not recognize the treaties of Colombia.

5th.
Considering that the existence of the Pedemonte-Mosquera pro-
tocal of 1830 has not been proven, since the document presented by

322
Ecuador is but a copy of a manuscript, or rough, unsigned draft
found among the papers of a private individual, although bearing
names as though the original had been signed, all of which leads to
the belief that no such protocol ever existed: 1st, because the du
plicates that would have been signed and made official for each
of the parties have not been found; 2d, because it was supposed
to have been signed at Lima on the 11th of August, by General
Tomas Mosquera as Plenipotentiary of Colombia, whereas the
fact was that he had ceased to perform the duties of his mission
on the 24th of July, and had embarked at Callao on the 9th of
August, sailing from that port on the 10th, en route to his own
country; 3d, because, in a book published in 1843, General Mos
quera admits that he left without concluding the settlement of
boundaries and does not mention or refer to Sr. Pedemonte, who,
until the 2d of August, had not taken charge of the Peruvian Min
istry of Foreign Relations: 4th, because no allusion is made to tin.
protocol in any document, nor does Sr. Valenzuela, who certified
to the copy of the manuscript, and well informed as he was as to
those matters, cite it in the memorial he wrote, in 1893, under the
direction of the Colombian government.

6th.
Considering that, even admitting the Pedemonte-Mosquera pro
tocol, it would be without validity or effect: 1st, because on the
date of its supposed signature, the Republic of Colombia was no
longer in existence, Ecuador had constituted herself into an inde
pendent state, and Mosquera lacked, therefore, the representative
quality and the power necessary to treat ; 2d, because, according to
that manuscript, the compromise remained pending what should be
resolved concerning the disposition of Jaen; 3d, because such a
compromise was opposed to the stipulations of the treaty of Guaya
quil, which recognized the possession of the respective territories
and permitted only the cessions and compensations of such "small
parcels" as might be necessary to regularize the frontier; 4th, be
cause the alleged agreement by way of protocol was not ratified bv
the respective governments, nor could it have been ratified without
previous legislative approval.

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7th.
Considering that, as shown by Peru in her Final Memorial, the
question whether Ecuador has or has not the power to alienate
Canelos cannot be held to be the only question of boundaries pending,
since, although it is true that both states were living in quiet and
peaceful possession of the frontiers of their respective provinces,
when, for the purpose of defining the lands of Canelos that Ecuador
proposed to cede to an English company, the arbitration was agreed
to in 1887, it is no less true that the special agreement for the settle
ment of boundaries referred to in the treaty of 1832 remained still
to be carried out, and if, when the arbitral convention was agreed
upon, it had .been desired to reduce the question of boundaries to
the question of the delimitation of said lands, that would have been
expressly stated. 8th.
Considering that the pending questions of boundaries are those
referring to that settlement of boundaries which, according to
Article 15th of the treaty of July, 1832, remained pending the
negotiation of a special agreement : a settlement of boundaries which,
because of the failure to negotiate such an agreement, and as the
parties failed in their direct negotiations to arrive at an under
standing, the Royal Arbitrator must make, and not by way of com
promise but on the merits. 9th.
Considering that, from a comparison of the divisionary line ul
timately sought by Ecuador in this proceeding with that asked for
by Peru, it results that the litigants are agreed as to the recog
nition of the Macara and Alamor rivers as parts of their frontiers,
it should for that reason be so decided.

10th.
Considering that, according to the result of such comparison,
Ecuador claims a good part of the littoral province of Tumbes, all

324
of the province of Jaen and a considerable portion of the depart
ments of Loreto and Amazonas — that is to say, the northern Ma
ranon region — provinces and departments belonging to-day to Peru.

11th.
Considering that, on the birth of Ecuador in 1830 and her recog
nition by Peru in the treaty of 1832, the latter already embraced the
provinces of Tumbes, Jaen and Maynas (composing in early times
the Amazonas region), and which formed, with the other provinces,
united into a single body politic, the Peruvian nation, Ecuador had
not made any claim thereto on the negotiation of that treaty, thus
signifying that she recognized Peru as then organized and con
stituted, and that that recognition is confirmed by Article 15th, which
maintains the status quo of the boundaries so long as the parties
by common consent shall not modify them.

12th.
Considering that, notwithstanding that recognition — though con
clusive in international law as to questions of territorial sovereignty,
whatever may have been the origin of possession — Ecuador now de
mands those provinces, or parts of them, basing her demand on the
contention that they had belonged to the Viceroyalty of Santa Fe,
and, on the extinction of that entity, to Colombia.

13th.
Considering that the province of Tumbes had never belonged to
the Viceroyalty of Santa Fe, because it had always formed a part
of the Corregimiento of Piura, which was embraced in the Auden
cia District of Lima and belonged to the Viceroyalty of Peru ; that
doubts occasioned by the provision of Law 10, Title 15, Book II,
of the Compilation of the Indies that the Audiencia of Quito should
extend along the coast as far as the port of Paita, exclusive, disap
pear with the single observation that that law also fixed upon Piura
as the limit; that according to Law 1, Title 2, Book V, of the same

325
Code, the port of Paita and the city of San Miguel de Piura formed
a single corregimiento embraced in the audiencia district of Lima,
and that in the descriptions of the period the towns, with their
territorial jhrisdictions, were understood; that it is further proven
that from the time of its establishment Tumbes, with its district, fig
ured constantly in the Corregimiento of Piura, and the Presidency
of Quito so recognized in the proceeding for the sale of the plantation
of Sarumilla, begun in 1789, wherein it is shown that said planta
tion, bounding on the Machala and the watersheds of Saruma, was
granted, by the cabildo (municipality) of Piura in 1627, with the ap
proval of the Viceroy of Lima, and was retained, in the jurisdic
tion of Tumbes.

14th.
Considering that, although the Gobierno of Guayaquil passed into
dependency on the Viceroyalty of Santa Fe, or New Granada, when
that entity was created in 1717, and, after having been suppressed
and re-established in 1739, it (Guayaquil) was reincorporated into
the Viceroyalty of Peru by royal order of July 7, 1803 ; that the ag
gregation to the latter viceroyalty was declared "absolute" by the
royal order of February 10, 1806, and that the Viceroyalty of Peru
took cognizance of all classes of matters arising in connection with
that province down to the independence, since, although the royal
decree of June 23, 1819, excepted matters of justice and finance, it
may be assumed that because of the state of insurrection in which
the Viceroyalty of Santa Fe found itself, the provision was never
carried into effect ; that Guayaquil was so united with the Viceroyal
ty of Peru, in political matters that the deputy who represented it in
the Supreme Central Junta of Spain in 1809 was elected by that
province.

15th.
Considering that, even when the Gobierno of Jaen also passed
over to the Viceroyalty of Santa Fe, the province remained depend
ent on the Bishopric of Trujillo and under the Vicepatronate of the
Viceroys of Lima, and that when, by the royal order of June 1,

326
1784, its re-incorporation with the Viceroyalty of Peru in political
matters was authorized, the Viceroy of Santa Fe did not regard
the disposition as of sufficient importance to excite his antagonism
but recognized its appropriateness in the record of the investigation
instituted by the Viceroy of Lima covering the period from 1788
to 1792.

16th.
Considering that, under the Royal Decree of July 15, 1802, the
Gobierno and Comandancia general of Maynas was formed by the
union of the ancient Gobiernos of Quijos and Maynas ; that in the
new gobierno were embraced the territories of the Maranon, and
all its northern and southern affluents as far as the territories of the
Portuguese colonies ; that those gobiernos and territories were
segregated from the Viceroyalty of Santa Fe and from the province
of Quito, and aggregated to the Viceroyalty of Peru, and that the
extent of the gobierno and comandancia general was completed by
the addition of the towns of Lamas and Moyobamba, which already
belonged to that Viceroyalty.

17th.
Considering that that Royal Decree of 1802, whereby there was
incorporated into the Viceroyalty of Peru the whole of the Ama
zonas region, was possessed of full legal sufficiency in accordance
with Spanish colonial law; that it was enacted at the instance and
with the concurrence of the Supreme Council of the Indies after
an extensive investigation begun in 1777, as a result of which the
measure was favorably reported on by the Presidency of Quito and
the Viceroy of Santa Fe ; that it was obeyed and fulfilled by all the
authorities, and published and notified, town by town; that it was
confirmed by the royal orders of 1805, 1818 and 1819, rejecting
proposals and petitions for reforms in the organization affected
thereby ; that in practice it was put into execution, as evidenced by
the very existence of the Gobierno and Comandancia general of
Maynas, by the authority exercised over its governors by the Vice
roys of Peru, by the very powers possessed by those viceroys to

327

appoint the governors in the intervals pending action by the Crown,
and by the numerous matters of all kinds going to show the con
tinued administration of the Viceroys down to the independence,
and that the Royal Decree has never been annulled.

18th.
Considering, then, that on the extinguishment of the Viceroyalty
of Santa Fe, or New Granada, the provinces of Tumbes, Guayaquil
and Maynas did not, under Spanish colonial law, belong to that
viceroyalty but to the Viceroyalty of Peru, on which Jaen also de
pended in matters ecclesiastical and lacked only compliance with
the royal order authorizing its reincorporation to depend thereon
in civil matters as well.

19th.
Considering that the declaration by the Congress of Angostura
in 1819, and by that of Ciicuta in 1821, that the territory of the re
public of Colombia should be the same as that embraced in the
Captaincy general of Venezuela and the Viceroyalty of New Gra
nada, was not made in the name of the Spanish sovereign, but in
representation of the provinces which had sent their deputies ;
that such declarations cannot, therefore, possess greater value than
is given to them by the provinces represented in those congresses,
and that the provinces of the Audiencia of Quito were not repre
sented therein.

20th.
Considering that, on the emancipation of the provinces of Quito,
Cuenca and Loja after the battle of Pichincha, in May, 1822, they
united with Colombia, forming the department of Ecuador so-called ;
that Guayaquil, which, since 1820 had existed in a state of independ
ence, annexed itself to said republic on the 31st of July, 1822,
forming the maritime Department of the South, and that, by those
combinations, the provinces mentioned, together. with the Venezuelan

328
and ancient Granadan provinces, went to constitute Colombia, not
by virtue of colonial law, but by the principle of the sovereign right
of emancipated peoples freely to constitute themselves.

21st.
Considering that, by the treaty of amity and alliance of July 6,
1822, between Colombia and Peru, the two states recognized each
other as independent ; that an integral part of the latter was formed
by the provinces of Tumbes and Maynas which had belonged to
the Viceroyalty of Lima and had manifested their adherence to and
co-operation in Peruvian independence, while the province of Jaen,
which achieved its own independence in May, 1821, had voluntarily
incorporated itself in Peru, and also co-operated in bringing about
her independence. 22d.
Considering that the treaty of 1822 above referred to, the only
One that ever existed between Colombia and Peru which was pos
sessed of binding force by virtue of the ratification of both con
gresses, respected the possession of territories and boundaries ex
isting in the States at the time of the mutual recognition, leaving
for a special agreement the demarcation of the "exact" boundaries,
that is, the mere delimitation of territories.

23d
Considering that, until the occurrence of the political events re
sulting in the war of 1828-9, the relations between the two republics
were cordial; that the status quo of the treaty of 1822 was main
tained, while from Lima Bolivar governed tbe provinces of Jaen
and Maynas as Peruvian provinces; that on the termination of the
first period of the war by the peace agreement of Giron on the 20th
of February, 1829, Colombia therein assumed the position of being
completely restored to the possession of her territory by the restitu
tion of Guayaquil by Peru; and the retirement of the Peruvian troops
to a position south of the Macara ; that in that agreement Colombia

329
made no claim to Jaen or Maynas ; that on the conclusion of the
war on the 10th of July by the armistice of Piura, by which Peru
restored Guayaquil, and that, in the treaty of peace of September
22d, the status quo prior to the war was respected and no mention
made of restitution, but that both parties were left in posses
sion of their respective territories, the procedure for the adjust
ment of their boundaries established, and the cession authorized of
only the small parcels of territory required to adjust the divis
ionary line, to the end that controversies between. the authorities
and inhabitants of the frontiers might be avoided.

24th.
Considering, then, that as the provinces of Tumbes and Maynas
did not belong either in fact or law to the Viceroyalty of Santa
Fe, on its extinguishment, or to Colombia, and that the province of
Jaen also did not belong to that republic, Ecuador could not have
taken those provinces as heir of the Viceroyalty of Santa Fe or of
the Republic of Colombia, in the light of the well-known principle
of nemo plus juris ad alium transferre potest quam ipse habcret.

25th.
Considering that as the treaty of July 12th, 1832, is the only one
entered into between Peru and Ecuador possessed of binding force,
because duly approved and ratified, down to the time of the arbitral
convention of 1887, Article 15th of that treaty would seem, in strict
right, to be a sufficient settlement of the boundary question, for it is
provided therein that those boundaries shall be the same that were
possessed by the two states on the occasion when they were even
tually recognized, with the provinces of which they were composed,
so long as they were not modified by common consent, that is, by a
special agreement; but that the parties, having resorted to an arbi
tration of the right, in order to settle the question, the arbitrator
is placed in the position of being required to decide whether those
boundaries are just or whether they ought to be modified in accord
ance with justice.

330
26th.
Considering that both parties are agreed as to the recognition of
the principle known as that of colonial uti possidetis, accepted by the
Spanish-American states — that is to say, the principle of retaining
as their boundaries the same that were possessed by the colonial
circumscriptions of which such states were formed — although they
differ as to dates and the method of its application, since Ecuador
seeks by that principle to re-establish the Audiencia of Quito as it
was created in 1563, or as it was incorporated into the Viceroyalty
of Santa Fe in 1739, and Peru asks for its application in adjusting
the divisionary line of the boundary provinces as they were defined
at the moment of the independence, the composition of each state
to be respected.

27th.
Considering that the principle of uti possidetis, ita possideatis
signifies the continuity of the possessory status, as expressed by the
very words (as ye possess, so may ye possess) employed by the
Roman praetor in the interdiction for "retention" of possession,
for it refers to the present and future and not to the past; also
as is understood in international law when treaties sanction by that
formula the present possession, and as is made clear in the history
of the formation of the Spanish-American states of which they were
composed, which states did not cut short the life of the towns
or recede from possession, but, on the contrary continued that
possession, although under a new regime ; and that it is natural that,
after their independence, the towns should remain in possession of
the territories and boundaries that had been theirs.

28th.
Considering, therefore, that the principle of colonial uti possidetis
accepted by Ecuador cannot refer to the possessory status of the
XVIth or the XVIIIth century, as she claims, but to that which ex
isted, legally established, at the moment of emancipation, a legality
which Ecuador cannot deny, since, by recognizing the sovereignty of

331
the Kings of Spain when they created the Audiencia of Quito and
the Viceroyalty of New Granada, she must also, by virtue of that
sovereignty, recognize that they could subsequently modify those
royal dispositions by others segregating towns and territories and
a&&regating them to the Viceroyalty of Peru.
29th.
Considering that, although the Spanish-American states were
formed on the basis of the great colonial circumscriptions called
viceroyalties or captaincies-general, the right possessed by those
great circumscriptions to unite among themselves must not be ig>-
nored, nor can the right be denied to the lesser circumscriptions,
embraced therein under the general term "provinces," to pass from
one to the other as the new states constituted themselves or to re
main independent, by virtue of the principle of the sovereignty of
emancipated peoples ; and that such right is even more firmly en
trenched since those states were born of the voluntary union of
provinces which remained their own masters on the extinguishment
of the common government of the viceroys and captaincies-general.
30th.
Considering that by that right, emanating, as it does, from the
principle of the sovereignty of emancipated peoples, the province
of Jaen, which had been a dependency of the Viceroyalty of Lima
in ecclesiastical matters and the aggregation of which to that vice-
royalty in political matters had been authorized by the Spanish
sovereign, could incorporate itself in the state of Peru as soon as
its self-achieved emancipation had been effected, just as the prov
ince of Guayaquil, which had been a dependency of the Viceroyalty
of Lima, could annex itself to Colombia.

31st
Considering that Ecuador has recognized that right as residing in
the independent provinces to form states or incorporate themselves
in others, since she herself is so constituted from the voluntary

332
union of the three provinces detached from Colombia, and since,
by depending upon that prirfciple of sovereignty, she justified and
defended the absorbtion of Cauca, which separated from New
Granada in order to unite with her.

32d.
Considering that the State of Peru has been legally possessed of
the provinces of Tumbes, Jaen and Maynas from its constitution
in 1821 down to the present day, organizing and administering them
and developing their interests, and that those provinces demon
strated their desire to continue the union with Peru at the very time
of the dissolution of Colombia and birth of Ecuador, swearing to
the constitution of Peru and enjoying continuous representation in
her congresses. 33d,
Considering that the recognition of a state carries with it the
recognition of its sovereignty in the provinces forming its integral
parts, and that such recognition on the part of Colombia and Ecua
dor of the State of Peru, with its provinces, is shown by the treaties
of 1822 and 1832, and on the part of all the nations by the treaties
Peru entered into with them ; and that with respect to her sovereign
ty in Maynas, the Bull of 1843 of His Holiness, Gregory XVI, acced
ing to Peru's petition to create the Bishopric over the whole of the
territory of Maynas, which was coextensive with the gobiasno and
Comandancia general of that name, must be borne in mindofls also
the treaties with Brazil, especially that of 1851 establishing the
Amazonas frontier in recognition of the rights of Peru over that
region under the Royal Decree of 1802 and the principle of uti
possidetis. 34th.
Considering that once the doctrine of colonial boundaries is ad
mitted — not for the purpose of reconstructing the great circumscrip
tions of the colonial regime as created, but for the purpose of deter-

333

mining the frontier between the states of Ecuador and Peru as made
up of the provinces composing them from the time of their birth
and with which they were recognized as such states— the adjust
ment of that frontier depends on the evidence produced as to the
boundaries common to the Peruvian and Ecuadorian provinces at
the time of their emancipation from Spain.

35th.
Considering that both parties have recognized as the divisionary
line between the Peruvian Department of Piura and the Ecuadorian
Department of Loja, the line formed by the Alamor river from its
headwaters to its disemboguement in the Chira, or Macara, and the
entire course of the Macara from that point to its source, for which
reason it is not necessary to cite the demonstrations made by Peru
of that part of the frontier.

36th.
Considering that Peru has abundantly proven that the Tumbes
river cannot be the divisionary line between her littoral province of
that name and Ecuador, as the latter claims, because the city of
Tumbes itself would thereby be excluded from Peru, together with
the northern part of fhe jurisdiction of the city as embraced in the
ancient Corregimiento, and later in the District of Piura, but that that
divisionary line ought to be constituted by the Machala, Jubones, or
Yamon, river and the line connecting that river, from the point at
which the boundary of Guayaquil terminates, with the headwaters
of the Alamor river, passing through the watershed of Saruma, for
thus the divisionary line is established by the memorials, geographi
cal descriptions and title deeds to country properties filed in the case,
and especially by the documents relating to the plantation of Saru
milla, which was sold in accordance with the proceeding instituted
before the Presidency of Quito in 1789, wherein it was established
that said plantation was in the jurisdiction of Tumbes and bounded
by the Machala river and the watersheds of Saruma, and continued
in that jurisdiction until its sale by an heir of the purchaser in 1825.

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37th.

Considering that as the province of Jaen is enclosed on the west,
south and east by what has always been Peruvian territory and
forms in fact and law a part of the State of Peru, as has been shown,
nothing remains but to establish its northern boundary, its only
frontier line with Ecuador — a line completely determined by the
Canchis river from its source, which almost touches that of the
Macara as far as its disemboguement in the Chinchipe — for, al
though the ancient Gobierno of Jaen extended farther toward the
north, Peru asks only for recognition of that line because the towns
which voluntarily incorporated themselves with her on the emanci
pation in 1821 only extend that far.
38th.
Considering that as the validity of the Royal Decree of July 15,
1802, as well as its practical effectiveness and stability, has been
demonstrated down to the moment of the independence, the fron
tier boundaries of the Amazonas region of Peru must be deter
mined in accordance therewith — that is, they must be found to be
the same as those of the Gobierno and Comandancia general of
Maynas and of the Bishopric of that name.
39th.
Considering that it is evident that said Royal Decree included in
the Gobierno and Comandancia general of Maynas the ancient
Gobierno of Quijos, with the exception of the town of Papallacta,
and that, for that reason, the line separating the terminal of that
town from the other towns of Quijos becomes at once the in
disputable frontier boundary. 40th.
Considering that the Royal Decree of 1802 provides conclusively
that the Gobierno and Comandancia general shall extend "not only
along the lower Maranon to the frontiers of the Portuguese colo
nies but also along the other rivers emptying into the Maranon on
its northern and southern banks, such as the Morona, Guallaga,
Pastaza, Ucayali, Napo, Yavari, Putumayo, Yapura and others less
considerable, as far up in each as the point at which, by reason of

335
its falls and inaccessible rapids, it ceases to be navigable"; that
consequently it embraced all the territories watered by those rivers,
it being impossible to admit the hypothesis that the intermediate
areas, cut off and isolated by them in different directions, should re
main under the government of the Viceroyalty of Santa Fe, and
that the Decree embraced them as far up as the points at which the
rivers cease to be navigable because of their falls and inaccessible
rapids, the term "navigation" meaning not by modern vessels, but
by those small boats, canoes and launches, then used by the In
dians, missionaries and authorities in crossing the territories and
travelling about. 41st.
Considering, therefore, that in strict observance of that general
rule, the western line of the Gobierno and Comandancia general of
Maynas was that uniting in the Amazonas rivers the points inacces
sible to navigation and that those points constitute positive termi
nals for demarcation, for which reason Peru asks that on this theory
the Agoyan falls and the Pastaza and the point in the neighbor
hood of the town of Paute at which the river of that name (or the
Santiago) ceases to be navigable be designated, in acceptance of the
description of the Ecuadorian geographer, Villavicencio, who has
been such a zealous defender of the interest of his country in this
boundary dispute. 42d.
Considering that, serving as a complement to the description of
the Gobierno and Comandancia general of Maynas made in general
terms by the Royal Decree of 1802, there exists a description of the
Bishopric of that name, which is coextensive therewith, prepared
with greater detail inasmuch as it had to make clear the different
origin of the ecclesiastical jurisdiction of parishes and missions
which were grouped within the new diocese, and that this description
expressly covers the parishes of the province of Quijos, except that
of Papallacta, the curacy of Canelos on the Bobonaza and the parish
of Santiago de las Montafias, and all the missions of Maynas, the
missions on the lower Putumayo and those situated on the upper
part of the same river, and on the Yapura, known as the Sucumbios

336
missions: towns and missions administered in temporal matters by
the Governor and Comandante general of Maynas as shown by
Peru. 43d.
Considering that, by virtue of what has been set forth and of the
numerous documents filed by Peru containing descriptions by the
civil and ecclesiastical authorities, in which are determined the
towns and boundaries embraced in the Gobierno and Comandancia
general of Maynas, there should be established as the western line
of that gobierno the cordillera of the Andes, comprising on the north
the headwaters of the Yapura and of the Putumayo whereby the
Sucumbios missions would be included, and continuing said line
along the Chinchipe as far as its confluence with the Canchis,
which constitutes thus the northern boundary of the province of
Jaen. The subscriber maintains:
That the Arbitrator should find that the frontier between Peru
and Ecuador ought to be so established as to leave within Peru the
littoral province of Tumbes, the Department of Piura, the province
of Jaen and that which was the Gobierno and Comandancia general
of Maynas, and that, therefore, the line uniting the following points
should be established as the boundaries of the Republic of Peru :
The Machala river. — The watersheds of Saruma. — The Alamor
river and the Pilares ravine. — The Macara river from the disem
boguement of the Alamor to its source in the Espindula ravine. —
The Canchis river, as far as its confluence with the Chinchipe. — The
town of Paute. — The falls of Agoyan. — The eastern chain of the
Andes, known successively as the Cotopaxi, Cayamburu, Anda-
quies and Mocoa. — The Yapura river, from its source to the disem
boguement of the Apaporis.
The foregoing opinion is respectfully submitted to a more enlight
ened judgment and signed at
Madrid, on the 28th of July, 1907.
DR. V. SANTAMARIA DE PARIiDES.

INDEX

Page
Introduction  „  1
GENERAL PART
ANTECEDENTS AND HISTORY OF THE CASE.
CHAPTER I.
The Ancient Colonies of Spain.
I. The system of territorial division established by the laws of the Indies. 7
II. Organization of colonial government in the XVIIth century. — 1.
Audiencias, gobiernos and corregimientos of New Spain and
Peru — 2. The system of audiencias. — 3. The government exer
cised by the Viceroy of Peru in the audiencia districts  9
III. Organic reforms of the XVIIIth century. — 1. Viceroyalties of Santa
Fe and Buenos Aires; Captaincies-general of Venezuela and
Chile. — 2. The establishment of new audiencias. — 3. The creation
of i-itendencias de provincia  14
IV. Great circumscriptions or bounds existing at the beginning of the
XlXth century  16
CHAPTER II.
Formation of the Spanish-American States.
I. States springing from the Viceroyalty of New Spain. — 1. Mexico.
— 2. Central America : Guatemala, Salvador, Honduras, Nicaragua
and Costa Rica  17
II. States springing from the Viceroyalty of Buenos Aires. — 1. The Ar
gentine Republic— 2. Paraguay. — 3. Uruguay  19
III. States springing from the Viceroyalty of New Granada. — 1. The in
surrection up to 1819.— 2. The Republic of Colombia (of Bolivar).
— 3. The present Republics of Venezuela, Colombia and Ecuador. 20
IV. States springing from the Viceroyalty of Peru. — 1. Chile.— 2. Peru —
3. Bolivia 

Page
CHAPTER III.
Historical Review of the Question of Peruvian Boundaries.
I. Relations of Peru with the first Republic of Colombia. — 1. Origin of
the question in 1822. — 2. Mosquera-Monteagudo treaty of the
same year. — 3. Galdeano-Mosquera Convention of 1823 (not rati
fied).— 4. Strained relations (1826) ; war (1828-9).— S. Guayaquil
treaty of peace and amity of 1829   24
II. Relations of Peru and Ecuador. — 1. Treaty of peace and alliance of
1832. — 2. Conferences at Quito in 1841. — 3. Disagreements of the
governments and breaking out of hostilities. — 4. Guayaquil treaty
of peace and amity of 1860 (not ratified). — 5. Incidents down to
1887  29
CHAPTER IV.
The Arbitration of His Majesty, the King of Spain.
I. Arbitral convention of 1887  34
II. Direct negotiations. — 1. Garcia-Herrera treaty of 1890 (rejected). —
2. Protocol of 1891 as to the Spanish arbitration. — 3. Supple
mental arbitral convention of 1894 (not ratified)  35
III. Prosecution of the Spanish arbitration. — 1. Cornejo- Valverde pro
tocol of 1904. — 2. Arbitrations of Colombii with Ecuador and
Peru. — 3. Peru's modus vivendi with Colombia and with Ecua
dor  ,  38
IV. Claims formulated by the parties to the Spanish arbitration. — 1.
Claims of Peru: (a) briefs, (b) final memorial. — 2. Claims of
Ecuador: (a) historical-juridical statement and memorial of
1902, (b) final memorial  39

SPECIAL PART
A CONSIDERATION OF THE DIVERSE QUESTIONS.
PRELIMINARY CHAPTER.
Statement of the Case and Classification of the Questions.
I. Statement of the case. — 1. Geographical point of view : (a) line from
the Pacific to the source of the Macara river, (b) frontier of the
Province of Jaen, (c) frontier of the Amazonas region, (d)
synthesis of the diverse claims formulated.. — 2. Legal point of
view. — 3. II i?lorical point of view. ...  47
II. Classification of the questions into two groups : as to (r) inter
colonial boundaries aud (2) international boundaries  52

Page
SECTION FIRST
INTERCOLONIAL BOUNDARIES
CHAPTER I.
Viceroyalties of Peru and New Granada.
I. The question of boundaries considered with respect to the Colonial
regime ; historic periods  54
II. First period : from 1542 to 1717. — 1. Entire epoch of the Viceroyalty
of Peru. — 2. Districts and governments of the Audiencias: (a)
Audiencia of Lima, (b) Audiencia of Quito, (c) Audiencia of
Santa Fe, (d) recapitulation. — 3. The Bishoprics: (a) Bishoprics
of Lima and Quito, (b) Bishopric of Trujillo. (c) Missions.. . 55
III. Second period: from 1717 to 1802. — 1. Creation (1717), extinguish
ment (1723) and re-establishment (1739) of the Viceroyalty of
Santa Fe, or New Granada. — 2. The Bishoprics: (a) creation of
the Bishopric of Cuenca (1779) by segregation from that of
Quito, (b) territories and boundaries of the Bishopric of Tru
jillo in 1786. — 3. The Intendency of Trujillo; the map of 1792. —
4. Descriptive memorials and general maps  59
IV. Third period: from 1802 down to the independence; reincorporation
of the territories of Maynas and the Government of Guayaquil
in the Viceroyalty of Peru  63
CHAPTER II.
The Gobierno and Comandancia general of Maynas.
(THE DRAFTING AND TENOR OF THE ROYAL DECREE OF 1802.)
I. Drafting of the Royal Decree of July 15, 1802.— 1. Reports of the
Presidency of Quito. — 2. Proceedings of the Supreme Council
of the Indies  65
II. Tenor of the Royal Decree. — 1. Formation of the Gobierno and
Comandancia general of Maynas. — 2 Unity of the Missions. —
3. Creation of the Bishopric of Maynas  70
III. General character of that sovereign act  72
CHAPTER III.
The Gobierno and Comandancia general of Maynas.
(TERRITORIES EMBRACED)
I. The territories of the Gobierno and Comandancia general of Maynas
were identical with those of the Bishopric, although designated
in a different manner  74
II. Gobierno and Missions of Maynas. — 1. Description by the Marques de
Selvaalegre, President of the Audiencia of Quito, 1754. — 2. De
scription of the Bishopric of Quito, 1775. — 3. Description by
Requena, 1779.— 4. Description by Silvestre, 1789. — 5. Descrip
tion by Bishop Rangel, 1814  76

Page
III. Gobierno of Quijos.— 1. Description by the Conde de Lemus. Presi
dent of the Council of the Indies* 1608.— -2, Description by Basabe,
Governor of Quijos, 1754.— 3. Description by the Marques de
Selvaalegre, 1754. — 4. Description of he Bishopric of Quito,
1755,— 5. Royal decree of 1772. — 6. Requena's opinion, 1799.—
7. Description by Silvestre, 1789.— 8. Raquena's opinion, 1799.—
9. Royal Decree of 1802. — 10. Descriptipn and census made by
Bishop Rangel, 1814.— 11. Resume: poinos of certainty and points
of doubt concerning the Gobierno of Quijos; Missions along the
Napo river  -  79
IV. Special consideration of Canelos and Macas.— 1. Canelos. — 2. Macas. . 84
V. The entire region of the Maranon and its affluents, in general  86
VI. Lamas and Moyobamba.— 1. Requena's reporti of 1779.— 2. Requena's
Consectary of 1781.— 3. Requena's opinion of 1799  87
VII. Missions along the Ucayali river. — 1. Requena's opinion of 1799. —
2. Description by Bishop Range!, 1814  89
VIII. Santiago de las Montanas  90
IX. Missions along the Putumayo (upper and lower river). — 1. Descrip
tion of the Bishopric of Quito, 1755. — 2. Requena's report of
1799. — 3. Official communications of the Governor of Maynas,
1803 and 1805  91
CHAPTER IV.
Gobierno and Comandancia general of Maynas.
(DIVISIONARY LINES)
I. General demarcation of the Gobierno and Comandancia of Maynas. . 95
II. Descripuons by Bishop Rangel, 1814 and 1822  97
III. The frontier line with Brazil and the northern and southern boun

daries

IV. The western line. — 1. Gobierno of Quijos; the town of Papallacta. —
2. The navigability of the rivers.— -3. Headwaters of the Caqueta,
or Yapura, and the Putumayo. — 4. Agoyan Falls on the Pas
taza. — 5. The town of Paute on the Paute, or Santiago, river. —
6. The Chinchipe at the mouth of the Canchis. — 7. Complete
contour  99
CHAPTER V.
Gobierno and Comandancia general of Maynas.
(VALIDITY, EXECUTION AND CONFIRMATIONS OF THE ROYAL DECREE OF 1802.)
I. Validity of the Royal Decree of 1802 according to Spanish colonial
law  104

II. Execution of that Royal Decree.— 1. On the part of the President
of Quito ; notification of the towns. — 2. On the part of the
Viceroy of Santa Fe. — 3. On the part of the Viceroy of Peru.
— 4. On the part of the ecclesiastical authorities  106
III. Confirmations of said Royal Decree. — L Petition of Baron de Car
ondolet, denied in 1805. — 2. Petition of Bishop Rangel, denied
in 1818.— 3. Petition of President Montes, denied in '1819  109

Page
CHAPTER VI.
Gobierno and Comandancia general of Maynas.
(ADHERENCE TO AND STABILITY OF THE ROYAL DECREE OF 1802.)
I. Matters arising in Maynas confirming the adherence to the Royal
Decree of 1802, down to the Independence. — 1. Cessation of the
jurisdiction of the Viceroy of Santa Fe and its exercise by that
of Peru. — 2. Matters ecclesiastical.— 3. Matters of personnel, a)
appointment of governors, b) appointment of employees. — 4.
Matters military. — 5. Matters political.— 6. Matters economical —
7. Matters administrative  Ill
II. Particular instances confirming the adherence to the decree in certain
localities. — 1. Gobierno of Quijos. — 2. Town and curacy of
Canelos. — 3. Missions on the Putumayo.— 4. Santiago de las
Montanas. — 5. Lamas and Moyobamba  115
III. Alleged nullification of the Rpyal Decree of 1802.— 1. No
nullifying act whatever in existence — 2. The supposititious proto
col of Pedemonte-Mosquera. — 3. Court Guides of Spain and
Maps. — 4. Notes on matters. — 5. The constitutional regime of
Spain. — 6. Independence and war  119
CHAPTER VII.
Gobierno of Jaen.
I. The province of Jaen, in the Viceroyalty of Peru. — 1. Conquest of the
Bracamoros; founding of Jaen. — 2. Gobierno of Yaquarsongo
and Pacamoros. — 3. Creation of the Audiencia of Quito. — 4. The
Corregimiento of Yaquarsongo and the Gobierno of Jaen de
Bracamoros. — 5. The province of. Jaen, belonging to the Bish
opric of Trujillo, Vicepatronate of the Viceroys of Lima  127
II. Creation of the Viceroyalty of New Granada ; proceedings for the re
incorporation of the province of Jaen into the Viceroyalty of
Peru. — 1. Report of the Director-General of Tobaccos, 1766. —
2. Royal order of June 1, 1784, authorizing the reincorporation. —
3. Reports from 1788 to 1792  , 131
III. Towns in the Gobierno of Jaen  133
IV. Boundaries of the province of Jaen  134
CHAPTER VIII.
Gobierno of Guayaquil.
I. Segregation of the Gobierno of. Guayaquil from the Viceroyalty of
Peru and its reincorporation therein. — 1. The Gobierno of Guaya
quil passed to the Viceroyalty of Santa Fe when the latter was
formed. — 2. Royal order of July 7, 1803, attaching that Gobierno
to the Viceroyalty of Peru. — 3. Confirmation of that royal order
by those of 1806 and 1808  138
II. Effectiveness of the aggregation to the Viceroyalty of Peru. — 1. Po
litical union. — 2. Administration and finances. — 3. Justice. — 4.
Matters excluded in 181-9.  140

Page
111. Towns and boundaries of the Gobierno of Guayaquil. — 1. Description
by the President of Quito, the Marques de Selvaalegre, in 1754. —
2. Description of the Bishopric of Quito, 1755.— 3. Description by
iudge Navarro XVIIIth century. — 4. Distribution of tithes in
the Bishopric of Cuenca in 1809 and 1810.— 5. Memorial of the
Deputy, D. Pedro A. Bruno, as to the formation. of judicial dis
tricts in the province of Guayaquil in 1814. — 6. Description by
Baleato, 1820.— 7. Resume  143
CHAPTER IX.
Corregimiento of Piura.
[ The Corregimiento of Piura, in general. — 1. Its origin. — 2. Its per
tinence to the Audiencia of Lima. — 3. Towns of which it was
composed in the XVIth century. — 4. Its dependency on the
Bishopric of Trujillo  147
II. Territory of Piura in the XVIIIth and beginning of the XlXth cen
tury. — 1. Proceedings relating to land adjustment in 1712. — 2.
Statement concerning revenues (1762) and excise accounts (1785
to 1801).— 3. Report of the Deputy, D. Pedro A. Bruno, 1814.. . 150
III. The line of the Macara  151
IV. The line of the Alamor  152
CHAPTER X.
Lieutenancy of Tumbes.
I. Tumbes formed a part of the Corregimiento of Piura, as has been
shown .  154
II. The line of the Machala river and watersheds of Saruma. — 1. Lands
of the community of Tumbes on both banks of the river. — 2.
Private estates known as The Pedregal, The Corrales and The
Rinconada. — 3. Properties on the northern bank of the Tumbes.
— 4. Plantations of Callancas and the Yomon (the Machala). —
5. Plantation of Sarumilla; most important documents relating
to that estate (1627 to 1825)  155

SECTION SECOND
INTERNATIONAL BOUNDARIES
CHAPTER I.
The States of Colombia and Peru, and the Provinces of -which, they were Composed.
I. Questions relating to the international boundaries. — 1. Method for
their study. — 2. The Colombian question  165
II. The State of Colombia. — 1. Its formation. — 2. Guayaquil ; its own
independence, Peru's protectorate over it, and its annexation to
Colombia  167
III. The State of Peru. — 1. Its formation and its vicissitudes down to
1827.— 2. Maynas.— 3. Tumbes.— 4. Jaen  170

Page
CHAPTER II.
Treaties and Relations of Peru with Colombia.
I. The Mosquera-Monteagudo treaty of 1822 (ratified 1823). — 1. Instruc
tions of the Government of Colombia to its Plenipotentiary. — 2.
Conferences and negotiation of the treaty  177
II. 'Representation of Jaen and Maynas in the first Peruvian Congress. —
1. Explanations with respect to Maynas. — 2. Colombia's assent
as to Jaen  ,  179
III. A most inportant letter from Bolivar in 1822. — 1. Concerning the
annexation of Guayaquil. — 2. With respect to Jaen, Maynas and
Tumbes  182
IV. Galdeano-Mosquera convention of 1823 (not ratified. — 1. Proposals
of the plenipotentiaries. — 2. Matters agreed to by the plenipo
tentiaries, and legislative disapproval thereof  186
V. Colombian law of 1824 concerning territorial division  188
VI. Bolivar's policy in Peru; his action with respect to those matters. .. . 190
VII. Bolivian Constitution of 1826 and its nullification in 1827  192
VIII. Resume of the boundary question down to 1827. — 1. The question in
general. — 2. The question in its relation to Jaen. — 3. The ques
tion in its relation to Maynas. — 4. The question in its relation to
Tumbes  194
CHAPTER III.
Treaty of Guayaquil of 1839.
(HISTORICAL PREMISES AND COMPOSITION.)
I. Historical premises of the treaty of 1829. — 1. Events of 1827 alter
ing the relations between. Colombia and Peru. — 2. The mis
sion of the Plenipotentiary Villa (1828).— 3. The war of 1828-
1829 ; its true causes. — 4. Efforts toward peace ; Ofia bases for
peace negotiations. — 5. Preliminary peace convention of Giron. —
6. Continuation of the war ; armistice of Piura..  198
II. Composition of the treaty of 1829.— 1. Guayaquil conferences (Gual-
Larrea) ; observations thereon. — 2. Official communication of the
Peruvian Plenipotentiary to his government. — 3. Exchange of
ratifications without previous approval of the Colombian Con
gress 

207

CHAPTER IV.
Treaty of Guayaquil of 1889.
(ITS TENOR AND INTERPRETATION.)
I. Tenor of the Treaty of 1829,-1. Special articles relating to the boun
dary question.— 2. Articles relating to other questions.— 3. Ar
ticles relating to all questions  211
II. General characteristics of the treaty  214
III. Interpretation of the treaty.— 1. Colonial boundaries and the respective
territories: a) the ancient Viceroyalties; b) before the. inde
pendence.  2. Territories to which the colonial boundaries re
ferred '"* Procedure foi the fixing of the boundaries  214

Page
CHAPTER V.
Treaty of Guayaquil of 1829.
(ITS NONFULFILLMENT AND INEFFICACY.)
I. Nonfulfillment of the treaty of 1829. — 1. Postponement of the work
of demarcation. — 2. Predispositions on the part of Colombia; the
letter of the Plenipotentiary, D. Tomas Mosquera. — 3. Predispo
sitions on the part of Peru.— 4. Colombia dissolves without mak
ing the demarcation  221
II. The supposititious Pedemonte-Mosquera protocol of 1830. — 1. Its tenor.
— 2. Peru denies the existence of that protocol. — 3. Reasons in
ducing the denial of its authenticity. — 4. Arguments contrary to
its validity and efficacy  225
III. Caducity of the treaty of 1829. — 1. Extinction of the personality of
Colombia as a contracting party.— 2. Impossibility of correcting
the imperfection of the treaty; its consequent nullity. — 3. Im
possibility of fulfilling the provisions of the treaty as to pro
cedure. — 4. Negotiation of subsequent treaties  231

CHAPTER VI.
The States of Ecuador aud Peru, and their Respective Provinces,
I. The dissolution of Colombia  236
II. The State of Ecuador. — 1. Its plebiscitary formation; the departments
of which it is composed. — 2. Incorporation of Cauca; theory of
Ecuador's justification thereof  238
III. The State of Peru. — .1. Peru was already constituted when Ecuador
was bornj provinces of which it was^.and continued to be, com
posed.— 2. Maynas (Loreto and Amazonas). — 3. Province of
Jaen. — 4. Littoral province of Tumbes  241
CHAPTER VII.
Fern's Treaties and Relations with Ecuador.
I. Treaty of Lima (amity and alliance), 1832. — 1. Peru's first relations
with Ecuador. — 2. Negotiation of the treaty of 1832; preliminary
statements by the Ecuadorian Plenipotentiary.— <3. Tenor and
ratifications of the treaty (ofamity and alliance). — 4. Importance
of that treaty to the present question : a) confirmation of the
caducity or nullification of the treaty of 1829; b) recognition of
the possessory status  245
II. Relations between Peru and Ecuador from 1833 to 1857. — 1. Attempts
to settle the boundaries C1840-2) : a) diplomatic notes of 1840;
b) Valdivieso-Leon conferences of 1841 ; c) Charun-Daste con
ference of 1842.— 2. Confirmation in 1846 of the treaty of 1832 —
3. Mutual demands in 1853 respecting Maynas : a) Peruvian
enactment creating the Government of Loreto; b) measure be
fore the Ecuadorian Congress concerning the navigation of the
Amazonian rivers  251

Page
III. Treaty of peace ano amity of 1&60 (not ratified). — 1. Ecuador's agree
ment of 1857 concerning the cession of territory in. settlement of
her foreign indebtedness; military occupation of Guayaquil
(1858). — 2. Object and tenor of the treaty of 1860, known as the
treaty of Mapacingue. — 3. Its references to the Royal Decree of
1802 and to, the treaty of 1829. — 4. Legislative disapproval of the
treaty; declarations of the Peruvian Congress. — 5. Ecuadorian
act of 18*1 relating to territorial division.  255
IV. Arbitral convention of 1887 and the direct negotiations.— 1. Negotia
tion of that convention. — 2. Garcia-Herrera compromise of 1890
(disapproved). — 3. Supplemental arbitral convention of 1894 (not
ratified)  260
V. Resume of the boundary question from 1830 to 1904  .' 264
CHAPTER VIII.
Principles of International "Law.
(THE COLONIAL "UTI POSSIDETIS.")
I. The doctrine of international law. — 1. Necessity thereof as a basis. —
2. The nature of its doctrine ; questions of territoriality and de
limitation. — 3. Principles of international law applicable to the
present case  267
II. The principle of colonial uti possidetis. — 1. Its significance. — 2. Its ra
tional foundation  269
III. Adoption of the principle by the Spanish-American States. — 1. Central
America. — 2. South America : a) general declarations ; b) con
crete questions; between Colombia and Venezuela (1881), be
tween Bolivia and Chile (1843 and 1863) and between Bolivia
and Peru (1902)  271
IV. Its recognition in disputes over Peruvian boundaries. — 1. By Colom
bia.— 2. By Ecuador and Peru..  274
V. Determination of the date of the colonial uti possidetis  277
CHAPTER IX.
Principles of International law.
(SOVEREIGNTY OF EMANCIPATED PEOPLES.)
I. The principle of the sovereignty of emancipated peoples. — 1. Explana
tion of the principle. — 2. Its differentiation from the principle set
up by Rousseau. — 3. It is not opposed to the principle of nationali
ties. — 4. The Spanish-American states formed- by the voluntary
union of colonial provinces  281
II. Acceptance of that principle by the Spanish-American states, in gen
eral  285
III. Its recognition by the states interested in the question at issue. — 1. By
the old Colombian Republic— 2. By Ecuador.— 3. By Peru  286

> Vage
w
CHAPTER X.
Principles of International Law.
(POSSESSION AND RECOGNITION.)
I. The principle of "continuous possession for a long period of time." —
1. Possession in itself; jus ct faior possessionis. — 2. Possession
as a means of acquiring ownership; its conditions; a) legal pos
session ; b) long period of time ; c) absence of sufficient adverse
claim.— 3. Possession confirmatory of ancient rights, and origi
native of others  291
II. Recognition of the personality of the state in international relations. —
a. The doctrine of the publicists. — 2. Peru's treaties with Colom
bia (1822) and Ecuador (1832). — 3. Treaties of Ecuador and
Peru with Spain. — 4. Pontifical recognition of Peru's sovereignty
in Maynas. — 5. Peru's treaties with Brazil  296
CHAPTER XI.
The Powers of the Royal Arbitrator.
I. The submission to arbitration and acceptance by the Royal Arbi
trator  302
II. Questions submitted for decision. — 1. Memorial presented to the
Ecuadorian Congress by the Minister of Foreign Relations. — 2.
Statements made by the Plenipotentiaries of Peru and Ecuador
before the Spanish Government in the course of diplomacy. — 3.
Ecuador's demands in the arbitral proceeding. — 4. Peru's de
mands in that proceeding. — 5. Opinions by Bourgeois, Renault,
F. de Martens and P. Fiore. — 6. Our opinion on this point  304
III. Criterion for the solution of the questions at issue. — 1. Strict law. —
2. No room for compromise  313
Resume and Conclusions  319

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