"The interpretation which the British Government, thus in assertion and act persists in ascribing to the convention, entirely changes its character. While it holds us to all our obligations, it in a great measure releases Great Britain from those which constituted the consideration of this Government for entering into the convention. It is impossible, in my judgment, for the United States to acquiesce in such a construction of the respective relations of the two Governments to Central America. "To a renewed call by this Government upon Great Britain to abide by and carry into effect the stipulations of the convention according to its obvious import, by withdrawing from the possession or colonization of portions of the Central American States of Honduras, Nicaragua, and Costa Rica, the British Government has at length replied, affirming that the operation of the treaty is prospective only, and did not require Great Britain to abandon or contract any possessions held by her in Central America at the date of its conclusion. "This reply substitutes a partial issue, in the place of the general one presented by the United States. The British Government passes over the question of the rights of Great Britain, real or supposed, in Central America, and assumes that she had such rights at the date of the treaty, and that those rights comprehended the protectorship of the Mosquito Indians, the extended jurisdiction and limits of the Belize, and the colony of the Bay Islands, and thereupon proceeds by impli cation to infer that, if the stipulations of the treaty be merely future in effect, Great Britain may still continue to hold the contested portions of Central America. The United States cannot admit either the inference or the premises. We steadily deny that, at the date of the treaty, Great Britain had any possessions there other than the limited and peculiar establishment at the Belize, and maintain that, if she had any, they were surrendered by the convention. "The Government, recognizing the obligations of the treaty, has, of course, desired to see it executed in good faith by both parties, and in the discussion, therefore, has not looked to rights which we might as sert, independently of the treaty, in consideration of our geographical position and of other circumstances which create for us relations to the Central American States different from those of any Government of Europe. "The British Government, in its last communication, although well knowing the views of the United States, still declares that it sees no reason why a conciliatory spirit may not enable the two Governments to overcome all obstacles to a satisfactory adjustment of the subject. "Assured of the correctness of the construction of the treaty constantly adhered to by this Government, and resolved to insist on the rights of the United States, yet actuated also by the same desire which is avowed by the British Government, to remove all causes of serious misunderstanding between two nations associated by so many ties of interest and kindred, it has appeared to me proper not to con sider an amicable solution of the controversy hopeless. "There is, however, reason to apprehend that, with Great Britain in the actual occupation of the disputed territories, and the treaty, therefore, practically null so far as regards our rights, this international difficulty cannot long remain undetermined without involving in serious danger the friendly relations which it is the interest as well as the duty of both countries to cherish and preserve. It will afford me sincere gratification if future efforts shall result in the success anticipated heretofore with more confidence than the aspect of the case permits me now to entertain." President Pierce, Third Annual Message, 1855. President Pierce's message of Feb. 14, 1856, covering correspondence with respect to Nicaragua and Costa Rica and the Mosquito Indians, is given in Senate Ex. Doc. 25, 34th Cong., 1st sess. "The President cannot himself admit as true, and therefore cannot under any possible circumstances advise the Republic of Nicaragua to admit, that the Mosquito Indians are a state or a Government any more than a band of Maroons in the island of Jamaica are a state or Government. Neither, of course, can he admit that any alliance or protective connection of a political nature may exist for any purpose whatever between Great Britain and those Indians." Mr. Marcy, Sec. of State, to Mr. Dallas, July 26, 1856. MSS. Inst., Gr. Brit. "The same rules applicable to the aborigines elsewhere on the American continent are supposed to govern in the case of the Mosquito Indians within the territorial limits of the Republic of Nicaragua, to whom the United States deny any claim of sovereignty, or any other title than the Indian right of occupancy, to be extinguished at the will of the discoverer, though a species of undefined protectorate has several times been claimed over them by Great Britain. This subject gave rise to much discussion, on account of the contiguity of the territory to the proposed interoceanic communication, to promote which a convention was concluded between the United States and Great Britain on 19th April, 1850. In that convention there is no reference to the Mosquito protectorate, though by a subsequent agreement between these powers, dated 30th April, 1852, intended to be proposed to the acceptance of the Mosquito King, as well as of Nicaragua and Costa Rica, there was a reservation to these Indians of a district therein described. But Nicaragua refused to enter into the arrangement, and protested against all foreign intervention in her affairs. (Congressional Globe, 1852-53, xxvi, 268; ibid., xxvii, 252, 286; 8 Stat. L., 174; Annuaire des deux mondes, 1852-53, 741; Appendix, 922; President Fillmore's message, Annual Reg., 1852, 301. See also for negotiations with Great S. Mis. 162-VOL. III- -3 33 Britain subsequent to the interoceanic treaty, Cong. Doc., 32d Cong., 2d sess, Senate Ex. Docs. 12 and 27; ibid., 33d Cong., 1st sess., Ex. Docs. 8 and 13.)" Lawrence's Wheaton (ed. 1863), 71. President Buchanan, in his fourth annual message, announced that "Her Britannic Majesty concluded a treaty with Honduras on the 28th November, 1859, and with Nicaragua on the 28th August, 1860, relinquishing the Mosquito protectorate." By that treaty Great Britain recognized, as belonging "to and under the sovereignty of Nicaragua, the country hitherto occupied by the Mosquito Indians, within the frontiers of the Republic; that a certain designated district should be as signed to these Indians, but that it should remain under the sovereignty of Nicaragua, and should not be ceded by the Indians to any foreign prince or state, and that the British protectorate should cease three months after the exchange of ratifications." Ibid. It was provided, however, in this treaty, that the titles theretofore granted under the alleged protectorate should be valid. (Supra, § 150f.) Under these titles the British settlers held. It has already been observed (supra, § 150f) that President Buchanan's expressions of satis faction with the treaty, in the message above noticed, were based on the assumption that Great Britain had ceased to exercise any influence whatever over the Mosquito country. That this is not the case, however, follows from the ratification, by the treaty, of British titles from Indians, already noticed, giving British subjects a controlling power in the territory, and from other conditions to be presently detailed. Difficulties having arisen between Great Britain and Nicaragua, un der this treaty, as to the degree of influence Great Britain was entitled to exercise over the Mosquito coast, the two powers agreed in 1880 to submit the questions at issue between them to the arbitrament of the Emperor of Austria. As translated, the material parts of the award are as follows: (1) "The treaty of Nicaragua of January 28, 1860, does not recognize in Nicaragua a full and unlimited sovereignty over the Mosquito Indians, but concedes in the third article to these Indians a limited autonomy (self government.) (2) "The Republic of Nicaragua is authorized, in order to give evidence of her sovereignty of the territory of the Mosquito Indians, to hoist on it the flag of the Republic. (3) "The Republic of Nicaragua is authorized to appoint a commissioner in order to the protection (wahrnehmung) of her sovereign rights in the territory of the Mosquito Indians. (4) "The Mosquito Indians are authorized.to carry their own flag, provided that in it there is a recognition of the sovereignty of the Republic of Nicaragua. (5) "The Republic of Nicaragua is not authorized to grant concessions for the obtaining of the natural products of the territory assigned to the Mosquito Indians. This right belongs to the Mosquito Government. (6) "The Republic of Nicaragua is not authorized to regulate the trade of the Mosquito Indians, or to tax the importation or exportation of goods into or from that territory. This right belongs to the Mosquito Government. (7) "The Republic of Nicaragua is bound to pay the arrears of annuity due by the treaty to the Mosquito Indians." Article 8 (the last article) relates exclusively to the relations of Nicaragua to the free port of San Juan del Norte (Greytown). To the award of the Emperor is appended an opinion (gutachten) in which is given in detail the reasons on which his conclusion rests. From this opinion the following condensed translation is given of the passages bearing upon the present issue: "I. The title to the territory occupied by the Mosquito Indians, on the east shore of Central America, though with an undefined boundary on the land sides, was for a long time in dispute. On the one side it was claimed by the Spanish-American states of South America, as succeeding to the rights of Spain. Spain had before the separation of these states, uniformly asserted her claim to the title, and had in 1803, issued a decree for its enforcement. But neither Spain nor the states which succeeded her had ever reduced their claim into possession; and the Mosquito Indians were in this way, so far as concerns the Spanish and Spanish-American authorities, left in practical independence. This independence they exercised by entering into commercial and interna tional relations, particularly with England. Their relations with England began immediately after England's conquest of Jamaica in the last half of the seventeenth century, and ripened in 1720 into a formal treaty between the governor of Jamaica and the chief (or king) of the Mosquito Indians, which finally grew into an international relation of protectorship. (Schutz-verhältniss.) But this protectorate was contested not only by the Spanish-American states, but by the United States of America; a contest which increased in earnestness as the question of isthmus transit grew in importance. "In 1848, the Mosquito Indians having, with the help of England, obtained possession of the important sea-port of San Juan del Norte (Greytown) complications threatening war grew up between them and the United States under whose protection the Republic of Nicaragua had placed itself. To remove these difficulties England and the United States concluded in April, 1850, the Clayton-Bulwer treaty, which soon, however, gave rise to fresh difficulties. England's object was, by an arrangement with the United States to determine the relations of the Mosquito Indians, and in particular of the sea-port of San Juan del Norte (Greytown). In this way originated in April, 1850, the so-called Crampton-Webster treaty (Martens-Samsoer, Recueil de Traités, xiv, 195) in which England tacitly renounced the protectorate of the Mos quito Indians and conceded that the sovereignty of the whole of the Mosquito territory within the limits of Nicaragua should be recognized as in Nicaragua, with the exception of a definitely bounded territory which was to be left to the unrestrained and independent control of the Mosquito Indians. Nicaragua, however, declined to accede to this ar rangement, so far as it gave independent territory to the Mosquito Indians, but claimed sovereignty over the whole coast. Further negotiations with the United States having proved abortive (the ClarendonDallas treaty, the last effort in this direction, not having been ratified by the Senate of the United States) England entered into direct negotiations with Nicaragua, which ended in the treaty of Managua of January 28, 1860. "II. In this treaty England expressly surrendered the protectorship of the Mosquito country, and recognized the sovereignty of Nicaragua over it under certain limitations, bounding it by fixed lines within which the Indians were to have the right of self-government. The question submitted to the determination of the Emperor of Austria was the relationship between such sovereignty on the one side and such self-gov. ernment on the other. As to this the following conclusions are reached: "The sovereignty of Nicaragua extends over the whole coast. This excludes, under the treaty, an absolute internationally recognizable sovereignty in the Mosquito Indians. "The Mosquito Indians are subordinated to the protectorate of Nicaragua in the place of the former protectorate of England. They have, however, self government assigned to them over a specifically limited territory. This territory, which is called Reserva Mosquito (Mosquito reservation), is an integral and inseparable part of the collective ter ritory of the Republic of Nicaragua, and an international appurtenance (pertinenz) of the mainland. Within the limits of the territory thus prescribed the Mosquito Indians are to enjoy their own mode of life and national existence; this territory, although remaining part of Nicara gua, is immediately under the control of the Indians, as their territory, the land of the Mosquitos. This indirectly follows from the clause prohibiting alienation of the territory by the Mosquito Indians to a foreign power. Within the territory, by the very words of the treaty, the Mosquito Indians have the right of governing (according to their own customs, and according to any regulations which may from time to time be adopted by them, not inconsistent with the sovereign rights of the Republic of Nicaragua) themselves, and all persons residing within such district. * But this self-government' does not extend to foreign affairs, as the Reserva Mosquito internationally forms part of the Republic Nicaragua. The Mosquito Indians have not, therefore the right to enter into relations of treaty with foreign states, to interchange with such states diplomatic agents, to wage war or make peace. Their 'self-gov ernment' is exclusively municipal. But it precludes, under the treaty, Nicaragua from granting monopoly privileges as to the products of the Mosquito territory, and from interfering with the port duties imposed by the Mosquito authorities. And there is nothing in the subsequent condition of the territory which relieves Nicaragua from the payment of the annuity (rente) agreed on by the treaty." On the question of the right of England to interpose to exact the ful fillment of her treaty with Nicaragua it is added: "It is true that England in the treaty of Managua recognized the sovereignty of the Republic of Nicaragua over the Mosquito territory, and renounced her own protectorate. But this was subject to the conditions and engagements specified in the treaty.' England has her own interest in the fulfillment, in favor of her former constituents, of those conditions, and may, therefore, in her own name, press such fulfillment. This cannot be called an unjustifiable 'intervention,' as it is simply pressing a treaty guarantee." It is a matter of notoriety that the governing population in the Mosquito country consists of British subjects (whites or negroes from Jamaica), acting under laws based on those of England, with English proc ess in the English language. It has already been seen that under the treaty of Great Britain with Nicaragua, titles previously granted by the Mosquitos are validated, though this is in defiance of the rule that Indian grants convey no title internationally valid. (Supra, § 150f.) But however this may be, there can be no question that, with such a state of facts at least in controversy, Great Britain, so far from renouncing her protectorship over the Mosquito Indians, takes the position of their |
