Riotte to Approved, San José , the 16th April, 1868 , by JUAN RAFAEL MORA , President of Costa Rica. NAZARIO TOLEDO, June 20, 1872

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

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

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

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

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

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

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

They say:

• When in 1858 the treaty was entered into, the constitution of 1838 was in force in Nicaragua. Article 2 thereof laid down the boundaries of the republic. A change in them, as involved by the treaty, consequently constitutes an amendment of the fundamental law, which, pursuant to article 194 of that instrument, can be effected only by two distinct approbations in two different congresses. The Canas-Jerez treaty was approved by but one—that of 1858—and is, therefore, not binding on Nicaragua now. It is not denied that, in addition to that ratification, the ratifications were exchanged with quite unusual solemnity (see the translation) by the Presidents of the two republics themselves, assisted by their respective ministers for foreign relations; that it, later, was published, as a part of the public law of the republic, in the official organ, and that it was, faithfully and without caviling, complied with by Nicaragua for a period of thirteen years. Nor can it be denied that if there was, quoad formam, a cloud hanging over it, Costa Rica had neither caused nor any means of removing it. Nicaragua, by her own negligence or bad faith, (I have reason for believing by both,) created that cloud, and nothing to clear it away, as she was in duty bound. It would be carrying owls to Athens would I undertake to show before you, Mr. Secretary, why she, and she alone, is foreclosed from availing herself of that cloud.
• The commissioners for the survey of the dividing line, (articles of the treaty,) have not been appointed, nor has ever a survey taken place. Now it seems simply incredible that such flimsy argument can be brought forward seriously by hosts of lawyers and statesmen, and be repeated by the press in all times. The survey was simply a measure of partial execution, which, if not otherwise stipulated, might or might not be resorted to without exercising any influence upon the substance and existence of the treaty. For thirteen years none of the two governments urged the appointment of the commission. This is equivalent to a tacit mutual understanding that hitherto they did not consider it of sufficient weight to have it attended to; but it seems unquestionable that either one of the parties may still any day demand the survey.
• Most stress is laid by Nicaragua upon the fact that, according to article 10 of the treaty, the Salvadorian envoy took the treaty under the guarantee of his government, and that it never ratified his act. But it is not true, in fact, that said envoy warranted the entire treaty. He merely acted as mediator to it. His guarantee was restricted to “lo estipulado en el articulo anterior,” namely article 9, containing the prohibition of hostilities in time of war, in the port and river San Juan and on Lake Nicaragua. Mr. Negrete expressly declared that he had authority from his, the Salvadorian, government to do so, and both the Nicaraguan, as well as the Costa Rican negotiators, who, according to the preamble, had taken cognizance of his powers and found them sufficient, were satisfied with Mr. Negrete’s declaration, so that none of these republics could complain even if Salvador had disowned Mr. Negrete’s action, which she never did, or not complied with it, for which there was no opportunity. It is not known, and has to be seen if a case occurs, whether Salvador will consider herself bound by that declaration to an intervention or not. But in law it seems doubtless that, as between the original contracting parties, provided the ratification of the guarantee clause is not made a conditio sine qua non of the very existence of a treaty or contract, that treaty or contract is binding upon them, whatever may be the fate of the guarantee.
• Finally, it is contended that the treaty, while transferring to Costa Rica territory use of waters, and navigation privileges, did not specify a consideration. If this were so, the remark would hold good that, according to Nicaraguan law, it is not necessary (as in the common law) to express the consideration; it is sufficient that it exist and may be proved. But it is not so. The treaty, in article 11, distinctly and discernedly enough for any interpreter acting in good faith, acquainted with the circumstances under which it was concluded, states the consideration. Costa Rica for two years bad been straining every nerve to save Nicaragua (Nicaraguans retort: herself too) from the iron grasp of Walker, and had spent a large sum of money and sacrificed many lives in the attempt, for which, without presumption, she might have claimed indemnity. She had possession of a number of steamers taken from the filibusters; she held, right or wrong, the Nicaraguan forts on San Juan River. All this she gave up to Nicaragua by that article, under the designation of creditos activos (assets) and of reclamations for indemnity. It is true the stipulations of the article are mutual, but that they merely meant obligations on the part of Costa Rica, every Nicaraguan knows full well, though not one is upright enough to confess it. This disingenuousness of Nicaragua on this occasion is so transparent that any foreign power treating with her will do well to heed the precedent. The editor of the government organ, in an article published in the Forvenir, proclaimed it as a tenet of international law that treaty stipulations are to be observed only so long as they are advantageous or as the power is wanting to break them, and this outrageous sentiment was not only not rebuked, but seems to be accepted with general approval.

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

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

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I have, &c.,

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

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