• TABLE OF CONTENTS
HIDE
 Front Cover
 Title Page
 Front Matter
 Acknowledgement
 Dedication
 Preface
 Table of Contents
 Introduction
 Main
 Bibliography






Group Title: Belize : the controversy between Guatemala and Great Britain over the territory of British Honduras in Central America
Title: Belize
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 Material Information
Title: Belize the controversy between Guatemala and Great Britain over the territory of British Honduras in Central America
Physical Description: 142 p. : ; 23 cm.
Language: English
Creator: Bianchi, William J
Publisher: Las Americas Pub Co.
Place of Publication: New York
Publication Date: [1959]
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Genre: bibliography   ( marcgt )
non-fiction   ( marcgt )
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oclc - 26620213
notis - ADT1614

Table of Contents
    Front Cover
        Front Cover
    Title Page
        Title Page
    Front Matter
        Front Matter
    Acknowledgement
        Page 8
    Dedication
        Page 9
    Preface
        Page 10
        Page 11
    Table of Contents
        Page 12
    Introduction
        Page 13
        Page 14
    Main
        Page 15
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        Page 17
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    Bibliography
        Page 138
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Full Text
















BELIZE










BELIZE

The Controversy Between Guatemala and Great Britain
Over the Territory of British Honduras
in Central America

By
59 i Z8-1
WILLIAM J. JBANCHI. B.S., LL. B.
Member of the New York and Federal Bars
Former Member of the New York State Senate


LAS AMERICAS PUBLISHING CO.
NEW YORK
































Copyright, 1959 by
Las Americas Publishing Company
249 West 13th Street, New York 11
Printed in the United States of America
All rights reserved









ACKNOWLEDGMENT


A paper such as this can rarely be completed without
assistance of some kind. Continuity in the work was made
possible by the explanatory material which provided a his-
torical perspective. Thoroughness of treatment was insured
by the quantity and the quality of the references obtained. Ac-
curacy and correctness were achieved by painstaking examina-
tion of the entire paper, section by section.
For the presence of these qualities, the writer is indebted
Sto the authors whose works have provided the background for
$ whatever aspect of the subject was being particularly con-
sidered. He also gratefully acknowledges the cooperation of
the British Foreign Office, the Embassy of Guatemala and
the Consulate of Guatemala in New York, as well as the in-
valuable and generous assistance of the staffs of the New
York Public Library, the British Library of Information and
the Hispanic Society of America. Finally, he wishes to ex-
press his deep appreciation to Michael DiPace and to Amalia
Franzone for the time and effort they have contributed, and
for the valuable suggestions which they have offered.

SW.J. B.
' New York























To my mother, EUSA,
and my wife, CONSTANCE.


Without their understanding, encouragement, and cooperation,
this work would not have been possible.








PREFACE


Belize,* or British Honduras, is a British crown colony in Central
America with a population of about 83,000 inhabitants and an area of
8,600 square miles. It is bounded on the north and northwest by
the Mexican territory of Quintana Roo, on the east by the Bay of
Honduras, and on the south and west by Guatemala.
Most of its surface is covered with forest, producing such woods as
logwood, mahogany, rosewood and pine, as well as sapodilla, from
which chide is obtained. In recent years the country has seen increased
cultivation of bananas, sugar and citrus fruits.
The first English settlement of Belize occurred about 1638 and was
probably composed mostly of buccaneers. Colonization on a larger scale
soon followed, stimulated by the growing trade in logwood (for the
dye industry) and mahogany. Up to 1798 Belize was de jure Spanish
territory, and, to a limited extent only, de facto English territory. It
was not until 1862 that Belize was formally declared a crown colony.
From the early days of English settlement, there has been dis-
agreement over the legal status and sovereignty of Belize. At first be-
tween England and Spain, the controversy was later continued, after
independence was won from Spain in 1819, by the United States of
Central America, and thereafter by Guatemala when it became an in-
dependent republic in 1839. The main focus of controversy has now
settled around the treaty made in 1859 between Great Britain and
Guatemala. In recent times Mexico has been drawn into the contro-
versy by the legitimacy of its ancient rights and by the increased mi-
grations of Mexicans into Belize.
It is the history of this controversy on legal possession and sov-
ereignty of elize which Mr. Bianchi discusses in admirable detail,
making j book indispensable for an understanding of the subject.
Mr. B /chi's objective study is exhaustive in two respects. First, by
his thorough documentation of all relevant material and his carefully
reasoned presentation of this material, the author lays down a complete
and cear foundation for an impartial judgment of the legal claims of
Great Britain and Guatemala. Secondly, he considers all claims made
by both sides in their furthest possible extension.

In the Spanish-speaking world the term Belize (Belice, in Spanish) is
used to refer to the country which in the English nomenclature is known as
British Honduras and has Belize as its capital.






The study of the juridical aspects of the controversy explains the
actions of both Great Britain and Guatemala. It offers as well an
excellent insight into a complex situation in Central America which
would otherwise be difficult to grasp without the author's skilled
guidance.
By drawing the limits and legal extent of the claims of both
sides, Mr. Bianchi reveals the impasse which Great Britain and Guate-
mala have reached over Belize, along with the legal poverty of Gua-
temala's case. However, from a study of Mr. Bianchi's exposition, it
is readily seen thatithe persistent pursuit of her claim by Guatemala
involves much more than the legality of a hundred-year-old treaty.
father, Guatemala exemplifies the concrete realization of a hundred-
year-old subterranean trend of Latin America toward regional, political
and economic consolidation. A necessary condition for this is inde-
pendence from foreign powers in the American continent as well as
control over foreign investment. By indicating the impossibility of a
legal solution, Mr. Bianchi points to the imminence of an extra-legal
solution.
The colonial powers in the world today have been cast, willingly
or unwillingly, in the role of teachers. They are preparing the gov-
erned people for self-rule and future independence. However, the
classic concept of independence is being transformed into a concept
of interdependence among individual nations and among groups of
nations. It will be for the people of Belize rather than England,
Guatemala, or Mexico to decide whether they shall be part of the re-
cently created English-speaking West Indies Federation, join Guatema-
la or Mexico or both, or be a part, as an independent republic, of
the Organization of Central American States.
A large percentage of the inhabitants of Belize are descended
from the Negro race, their official language is English and their
customs have been largely derived from the British. This background
would favor a political solution in which Great Britain would have a
prominent role. On the other hand, the geographical position of Belize
in a Spanish-speaking zone, the influx and intermarriage of Mexicans
and Guatemalans, and the absence of racial prejudice among the peo-
ple of Latin America generally all make inevitably for an eventual
social, economic and political integration of Belize with Mexico and
the Central American States in a world of better communications
and economic progress.
GAETANO MASSA













CONTENTS


Preface by Gaetano Massa
Introduction

DEFINITION AND EXPLANATION
1. The White Book


DOCUMENTATION
2. The Godolphin Treaty
3. The Treaty of Paris .
4. The Treaty of Versailles .
5. The Convention of London
6. The Peace of Amiens
7. The Treaty of Madrid .
8. The Acts of Parliament .
9. The Archives of British Honduras
10. The Treaty of 1859 .
11. Guatemala cites some law

ARGUMENT
12. The purport of the preamble and
13. The nature of Article 7 .


PAGE
S 10
S 13



S15


... 18
22
25
30
. 33
33
37
41
... 47
59
. 69


of Article


I


14. The duties imposed on Great Britain
15. Guatemala invokes the Clayton Bulwer Pact .
16. Guatemala alleges a verbal obligation
17. The Guatemala impasse .
Conclusion .
Bibliography .


S 72
78
.92
S104
113
123
137
S138







INTRODUCTION


For practical purposes this volume can be divided into
three parts.
The first part may be regarded as comprising the chapter
covering the White Book. The White Book is, suffice it to
say, the sum and substance of Guatemala's case against Great
Britain. As a result, copious references to it will, of necessity,
be found in this work. Some explanation is therefore due re-
garding its general nature, that is to say: its divisions, its con-
tents and its make-up.
Hence, the first part of this work may very well be labeled
definitive and explanatory.
The second part of this volume is constituted by those
chapters commencing with the one dealing with the Godolphin
Treaty and ending with the chapter called Guatemala Cites
Some Law. The essence of this portion of the work may
properly be described as documentary. It is dedicated to trac-
ing ownership, right and title in relation to the territory of
Belize. Every document or statute, therefore, which bears
materially on the question must necessarily be included. It is
only through such documents or statutes that we can determine
the legality or rightfulness of the claims to the disputed tract.
In this connection, reason exists for including the chapter
Guatemala Cites Some Law. A strict classification of the
material properly falling within the second or documentary
portion of the volume might, with some justification, have
omitted the chapter in question, and stopped with the inclu-
sion of the all-important Treaty of 1859 between Guatemala
and Great Britain. In such an event, however, the strictness
of the cassification would be made at the expense of accuracy.
Guatemala has gone to great lengths to cite authorities on
international law which she believes are in support of her posi-
tion. The citations from the authorities and the excerpts from
the cases are, in the author's opinion, as important to an un-
derstanding of the problem after the facts have been fully







developed, as any of the cited treaties which bear on the ques-
tion. In this sense, they too are truly documentary.
The third part of this volume will necessarily include the
remaining chapters, from the one entitled The Purport of the
Preamble and of Article I, on through to the conclusion. These
chapters concern themselves exclusively with the reasoning em-
ployed by Guatemala and the claims she raises against Great
Britain. Both the reasoning and the claims are subjected to
study, question, application to the facts and analysis. In some
cases the premises on which the reasoning or claims are based
are even conceded for purposes of discussion.
Such a procedure insures thoroughness of treatment. Thus,
where some fault is found with the immediate bases upon
which a claim rests, all further consideration of the topic is
not ipso fact terminated by reason of such fault. The correct-
ness of the grounds upon which the claim or reasoning rests
is assumed for the purpose of determining, in such an event,
the soundness of the final or ultimate conclusion. The char-
acter of this section or part of the volume is, therefore, argu-
mentative in the true sense of the word.
Before closing the explanation of the manner in which
the subject matter is divided, attention must be called to docu-
ments like the Clayton Bulwer and Dallas Clarendon Pacts.
Mention of these treaties will be found in the chapters we
have classified as argumentative. They have not been dealt
with separately in the documentary portion of this volume.
Their nature does not warrant such treatment. They do not
bear materially on the issue. They are, however, brought into
the discussion by Guatemala in the course of presenting her
case. Consequently, the reader will find them dealt with in
the final division of this volume, wherever applicable, in rela-
tion to the arguments raised by Guatemala. In like fashion,
he will also find mention of other papers such as treaties and
letters of state. The amount of space and attention given them
must, of a certainty, be in proportion to their importance as
related but collateral matters.






DEFINITION AND EXPLANATION


CHAPTER 1

THE WHITE BOOK

The White Book is a publication by the Guatemalan
Ministry of Foreign Affairs, dated October, 1938. It has been
translated into English from the Spanish. It is an exposition
of the Guatemalan side of the dispute between Guatemala
and Great Britain, relative to the Convention of 1859, center-
ing about the territory of Belize or British Honduras, as it is
called today. The White Book contains over 500 pages divided
into five parts preceded by an introduction and a statement
in the nature of a preface. These parts are: first, from the
Godolphin Treaty of 1670 to the Boundary Convention of
1859; second, from the Convention of 1859 to 1884; third,
from 1933 to date; fourth, the juridical status of the question,
and fifth, a chartography of Belize. A bibliography and an
index follow.
Part one, from 1670 to 1859, contains a discussion of the
origin of the settlement of Belize, and of the Godolphin
Treaty between Spain and England. It reviews the pacts of
1763, 1783, 1786 and 1802 to which Spain and England were
parties. It also considers the Clayton Bulwer and Dallas
Clarendon treaties between Great Britain and the United
States. All of the aforementioned pacts are regarded by Gua-
temala relevant to her claims against Great Britain.
Part two, from 1859 to 1884, features a detailed consid-
eration of the Conventions of 1859 and 1863 between Guate-
mala and Great Britain, and a historical exposition of the
boundary question since 1859.
Part three, from 1933 to date, is marked by voluminous
correspondence between diplomatic representatives of Great
Britain and Guatemala. It is related to Guatemala's allega-





tion that Great Britain did not comply with the terms of the
Convention of 1859, and Guatemala's demand that Great
Britain fulfill her obligations under that treaty. Part three is
brought to a close by citations from divergent sources under
a heading labeled, "Historical Documents, Annex I." The
purpose of these citations is to demonstrate the limited nature
of British rights over the disputed territory.
Part four, the juridical status of the question and its con-
sequences, is highly specialized and limited in scope. Its object
is to prove the existence of legal doctrines, favorable to Gua-
temala in the case, as set forth by eminent writers of interna-
tional law. Citations from these writers are given as well as
excerpts from decisions in American cases dealing with aspects
of international law which Guatemala considers in point.
Part five, the chartography of Belize, is offered to show
Guatemala's rights over the territory between the Sibun and
the Sarstoon rivers within the disputed tract, prior to the
Convention of 1859. As part of the evidentiary matter, 16
maps, with dates ranging from 1783 to 1858 are attached.
They include some drawn by British chartographers.
The efforts of the Guatemalan Government in the Belize
dispute, however, did not end with the publication of the
White Book in 1938. Through its Foreign Office, it has issued
a first series of nine pamphlets covering the period from July
1939 to April 1941, and a second series of five pamphlets for
the period from August 1941 to September 1944. These two
series are entitled, "Continuation of the White Book." Three
additional pamphlets have also been issued, relative to the
status of the question, dated 1945, 1946 and 1947.
In general, these publications are supplementary to the
original account of the controversy offered by Guatemala.
Some of them contain newspaper articles, some of them com-
prise documents reflecting the activities of the Executive De-
partment, and some of them offer the opinions of a number
of prominent persons in the Spanish-American world familiar
with international law and politics.





No attempt has here been made to consider in detail any
of the above mentioned material. This has been done, wher-
ever necessary, in the appropriate and pertinent sections that
follow. As a result, numerous references from the White
Book and its supplement will be found. It has, therefore, been
thought best to familiarize the reader with this brief sketch of
the subject matter which constitutes Guatemala's case against
Great Britain.






DOCUMENTATION


CHAPTER 2

THE GODOLPHIN TREATY

The legal history of the Belize question may be consid-
ered to begin with the Treaty of 1670, concluded in Madrid
between the Crowns of Great Britain and Spain.1 The purpose
of the treaty was to establish peace in America. It is some-
times referred to as the Godolphin Treaty from the fact that
it was signed for Great Britain by William Godolphin.2 The
English text of the treaty, translated out of Latin, dates it as
the 8/18 day of July, 1670.
The 17th century brought the violent eruption of Eu-
ropean rivalry into the New World, particularly in the area
of the Caribbean. The wars and battles of the era were, to a
great extent, waged at sea for the valuable cargoes moving
along the ocean routes between the Old World and the New.
Assaults were launched from the sea against fortified points.
Ships were taken as prizes. Rich cities on the mainland were
sacked and looted. Prominent persons were held for ransom.
Torture, arson, plunder and depredation were everyday expe-
dients. In short, the brute matter from which most of our
pirate literature has been fashioned was common occurrence
in the bitter struggles between the European contenders. In
these rivalries both Spain and England played prominent roles.
The Godolphin Treaty of 1670 merely signaled a brief pause
in the recurring hostilities of the century.

1 Published by his Majesties Command, In the Savoy, Printed by the As-
signs of John Bill and Christopher Barker, Printers to the Kings Most Excellent
Majesty, 1670. En Madrid, afio 1670, Con licencia de los Sefiores del Consejo
de Estado, En casa de Domingo Garca Morris, Impressor del Estado Eclesiastico
de las Coronas de Castilla y Le6. Col. de los Trats. de Espafia (Abreu, 1751),
Parte I, 1665-1673, p. 498.
2 White Book, p. 19.







The nature of these conflicts can be understood at a glance
by a superficial examination of the Articles of the Godolphin
Treaty already cited. Article II provides for universal peace
between the Kings of Great Britain and Spain and their plan-
tations, colonies, forts, cities, islands and dominions in Amer-
ica. Article III prohibits plundering and depredation by land
as well as by sea, and in fresh waters everywhere. Article IV
provides for the revocation of all commissions and letters of
reprisal and mart or otherwise containing license to take prizes.
Article VI provides that prisoners on both sides, detained by
reason of hostilities committed in America, be set at liberty
without ransom. Article VIII prohibits the subjects of either
king from sailing and trading in any places whatsoever in the
West Indies possessed by the other. Article X allows the sub-
jects of one king to put into American ports of the other in
an emergency without being detained or hindered. Article XI
grants safe conduct to the subjects of one king who find them-
selves on the coasts of the other through shipwreck or other
mishap. Article XII lays down the rules for the conduct of
ships of one sovereign, if there be three or four of these ships
together, driven into any of the ports of the other thus giv-
ing ground for suspicion.
But the provisions which relate directly and bear specifi-
cally on the unfolding of the story of Belize are found in
Article VII of the Godolphin Treaty of 1670. This Article is
here reproduced in the original English translation from the
Latin:
All Offences, Damages, Losses, Injuries, which the Nations and
People of Great Britain and Spain have at any time heretofore, upon
what Cause or Pretext soever suffered by each other in America, shall
be expunged out of remembrance, and buried in Oblivion, as if no
such thing had ever past.
Moreover, It is Agreed, That the Most Serene King of Great Britain,
His Heirs and Successors, shall have, hold, keep and enjoy for ever,
with plenary Right of Soveraignty, Dominion, Possession and Pro-
priety all those Lands, Regions, Islands, Colonies and Places whatso-
ever, being or situated in the WEST-INDIES, or in any Part of
AMERICA, which the said King of Great Britain and His Subjects







do at present hold and possess; So as that in regard thereof, or upon
any Colour or Pretence whatsoever, Nothing more may or ought to be
urged, nor any Question or Controversie be ever moved concerning
the same hereafter."8
An analysis of this Article establishes beyond question the
explicit confirmation of British sovereignty over whatever
lands, regions, islands, colonies and places in the West Indies,
or any part of America, were held and possessed by Great
Britain as of 1670. The question is not, therefore, one con-
cerning the nature of British rights. Those rights are conceded
in full by the employment of words such as "plenary Right
of Soveraignty" and "Dominion." The question is what were
the lands, regions, islands, colonies and places in the West
Indies and in America, held by the British in 1670? In this
regard, it has been stated that the failure to list, in Article VII,
the lands, provinces, islands, colonies and dominions held by
the British at that time in the West Indies, resulted in several
disputes.'
There is disagreement as to whether the British held any
land at or in the vicinity of Belize at the time the Treaty of
1670 was signed. Guatemala contends that in 1670 England
had no colony or possession whatever in Belize.5 The Ency-
clopaedia Britannica relates that the British settlement in
Honduras begins with the coming of shipwrecked sailors or
buccaneers in 1638, and that the first regular establishment
followed in 1662 when settlers were attracted from Jamaica
by the logwood and mahogany which soon became an impor-
tant product of the bay.6 These views were adopted by Gordon
Ireland.' Gilvez states that by 1670, British pirates had already
established themselves on territories within the northern por-
tion of the Captaincy General of Guatemala. He goes on to

3 See footnote 1, p. 18.
4 Col. de los Trats. de Espafia (Abreu, 1751), Parte 1, 1665-1673, p. 508,
footnote.
5 White Book, p. 19.
8 Vol. 4 p. 201 (1947).
7 Boundaries, Possessions and Conflicts in Central and North America and
the Caribbean (Cambridge, 1941), p. 120.






say that, in his opinion, the settlement at the mouth of the
Belize river was established between 1603 and 1617.8 These
conclusions are adopted by Pasos.9 Fortunately, we are not
called upon to settle the question.
If Great Britain held and possessed any land or colony
in Belize or British Honduras at the time the Treaty of 1670
was signed, her sovereignty over the territory would be estab-
lished by the broad and unmistakable terms of that treaty.
We shall find, however, that treaties subsequently concluded
between Great Britain and Spain establish, in no uncertain
fashion, the restricted and usufructuary nature of British
rights over Belize as well as Spanish sovereignty over the
same. In short, even if we assume the fact of a British settle-
ment in Belize over which Spain conceded British sovereignty
by the terms of the Godolphin Treaty of 1670, Great Britain,
in treaties signed by her with Spain after 1670, acknowledged
her own limited rights as a mere licensee in and over the ter-
ritory. Thus, whether Great Britain did or did not hold and
possess any land or colony in Belize or British Honduras in
1670 becomes a purely academic consideration in the light of
the above mentioned documents, which we will examine in
the chapters that follow.














8 El Caso de Belice (Guatemala, 1941), pp. 31, 33.
9 Belice, Patrimonio de Guatemala (Nicaragua, 1944), p. 25.










CHAPTER 3


THE TREATY OF PARIS

The duel for empire in Europe continued throughout the
18th century. In 1756 rivalry broke out into open warfare. The
conflict became known to history as the Seven Years' War. It
arose as the result of a coalition between France and Austria
aimed at curbing the growing power of Prussia and of Fred-
erick the Great. Russia, Poland, Saxony and Sweden joined the
combination. When Frederick suspected what was afoot, he
made advances to King George of Great Britain, with the
result that an alliance was speedily arranged.'0
The role of Spain in this struggle was not a major one.
She was allied to France by a so-called Family Compact which
united both countries in a defensive and offensive alliance.
Nevertheless, after Spain had completed her preparations and
openly proclaimed her alliance with France, Great Britain de-
dared war on January 2, 1762.1 The struggle, however, came
to an end in the same year and preliminary articles of peace
were signed in November at Fontainebleau.
On February 10, 1763, the definitive treaty of peace was
signed in Paris by the-emissaries of Great Britain, France and
Spain. The treaty contained a number of provisions affecting
relations between-Great Britain and France on the one hand,
,and between Greit Britain-and:Spain on the other.
'he portion .f- the eate ( which is of immediate concern
to us is th io glo-Spjanish relations, specif-
ically Artfav- This Article bea=s directly on the subject
matter a hand, and reads a4& follows:

10 Shorter History of England and Qreater Britain (Cross, 1929), p. 496.
11 Shorter History of England and Greater Britain (Cropw, 1929), pp. 508,
509.






"His Britannic Majesty shall cause to be demolished all the Fortifica-
tions which his Subjects shall have erected in the Bay of Honduras,
and other places of the Territory of Spain in that part of the World,
4 months after the Ratification of the present Treaty; and His Cath-
olic Majesty shall not permit His Britannic Majesty's Subjects, or
their Workmen, to be disturbed or molested, under any pretence what-
soever, in the said places, in their occupation of cutting, loading, and
carrying away logwood; and for this purpose, they may build with-
out hindrance, and occupy without interruption, the houses and mag-
azines which are necessary for them, for their families, and for their
effects; and His Catholic Majesty assures to them, by this Article, the
full enjoyment of those advantages and powers on the Spanish Coasts
and Territories, as above stipulated, immediately after the Ratifica-
tion of the present Treaty."12

It would appear, therefore, that at the time the Treaty of
Paris was signed, the British were engaged in the "occupation
of cutting, loading, and carrying away logwood." This activity
had for its field of operation diverse and scattered sections
along the shore of what is today called British Honduras, on
the Atlantic side of the Central American coast. The question
which is naturally posed concerns the terms under which the
occupation of "cutting, loading, and carrying" logwood was
exercised.
In this connection, certain conclusions become immediately
apparent when we weigh the language contained in Article xvUI.
It is true that it does not provide exact geographical defini-
tions of boundaries and limits such as are found so precisely
and particularly expressed in subsequent documents bearing on
the question. The intent is nevertheless clear. The region in the
vicinity of the Bay of Honduras, and other places in "that part
of the World," are declared to be the "Territory of Spain."
The privilege granted to British subjects covers only the "cut-
ting, loading, and carrying" away of logwood. Pertinent to the
definition of the concessioninade, it is again re-iterated, in a
subsequent clause of Article xvI, -that those ".aantages" are
granted to the British, on "Spanish Coasts and Territories."

12 I British and Foreign State Papers 646. See also Trats. Convs. y Decs.
de Paz y de Comercio (Cantillo, 1843), p. 491.






It follows, therefore, as a direct result of the language
employed, that no grant of land was made either expressly or
by indirection. What is contemplated and conceded by Article
xvn of the Treaty of Paris is a mere license. It is inconceivable
that a British sovereign would warrant, to a foreign power, the
demolition of fortifications constructed by British subjects, on
territory claimed as his own. The only conclusion possible
under the circumstances is that the Spanish sovereign conceded,
to the subjects of the King of Great Britain, a simple right of
usufruct, no more and no less.
Note must be taken that no direct use is made of such
words as sovereignty, dominion, ownership, possession or their
equivalents. It is apparent, notwithstanding, that the British
subjects who engaged in their occupation above described,
without guarantee of any definite time limit or period, did so
by sufferance of the King of Spain.
The very fact that the lands concerned are twice described
as Spanish territories constitutes a general acknowledgment
by Great Britain of Spanish primacy or power, over the regions
wherein is located the tract which has become the subject of
the Anglo-Guatemalan dispute.










CHAPTER 4


THE TREATY OF VERSAILLES

The 18th century was witness to the most significant
political event in history. The American colonies, which were
to unite as a nation and emerge less than 150 years later as
the greatest single power on the face of the earth, successfully
revolted against the British. American independence was for-
mally acknowledged by Great Britain, on September 3, 1783,
in the treaty which terminated hostilities between Great Britain
and her former colonies. Before success finally crowned the
American struggle against Great Britain, France actively en-
-tered the conflict on the side of the American colonies. The
French government was not, however, motivated by enthusiasm
for the American cause. Its aim was to revenge the humiliation
it had suffered during the Seven Years' War and to recover as
much as possible of the colonial trade and possessions it had
lost.13
Spain, if we recall the facts, had been an ally of France
during the Seven Years' War.14 It is not surprising, therefore,
to find that on April 12, 1779, she joined France in an alliance
against Great Britain and declared war on June 16th of the
same year.15
The end of the war of independence, between Great
Britain and her former colonies, also brought a close to hos-
tilities between Great Britain and the allies of the American
colonies, France and Spain. On September 3, 1783, the same
day on which Great Britain and the colonies concluded their
agreement, France and Spain signed a treaty of peace with the
British, at Versailles.

Is Shorter History of England and Greater Britain (Cross, 1929), p. 533.
14 See Chapter 3.
15 Shorter History of England and Greater Britain (Cross, 1929), p. 534.




















Boundary between
Yacatia and Guate-
mala according to
the map of Yucatin
published in Merida,
1848.

18'

17' 49'

Boundary according
to the treaty between
Mbico and Guate-
mal, 1882.


Yucatdn






It is not within the province of a specialized treatment
such as this to analyze the pact in its entirety. Suffice it to say
that a great number of topics were dealt with. Among them,
and considered at length in Article vi, were questions relating
to British activities in the territory which is the subject of this
volume, and which has today become the target for Guatemalan
irredentism. Article vi of the Treaty of Versailles between
Great Britain, France and Spain declares:

"VI. The intention of the 2 High Contracting Parties being to
prevent, as much as possible, all the causes of complaint and misun-
derstanding heretofore occasioned by the cutting of wood for dyeing,
or logwood; and several English Settlements having been formed and
extended, under that pretence, upon the Spanish Continent; it is ex-
pressly agreed, that His Britannic Majesty's Subjects shall have the
right of cutting, loading, and carrying away logwood, in the District
lying between the Rivers Wallis or Belize, and Rio Hondo, taking
the course of the said 2 Rivers for unalterable boundaries, so as that
the navigation of them be common to both Nations, to wit: by the
River Wallis or Belize, from the sea, ascending as far as opposite to
a Lake or Inlet which runs into the land and forms an Isthmus, or
Neck, with another similar Inlet, which comes from the side of Rio-
Nuevo, or New River; so that the line of separation shall pass straight
across the said Isthmus, and meet another Lake formed by the water
of Rio-Nuevo, or New River, at its current. The said line shall con-
tinue with the course of Rio-Nuevo, descending as far as opposite to
a River, the source of which is marked in the Map, between Rio-
Nuevo and Rio-Hondo, and which empties itself into Rio-Hondo;
which River shall also serve as a common boundary as far as its junc-
tion with Rio-Hondo, and from thence descending by Rio-Hondo to
the sea, as the whole is marked on the Map which the Plenipoten-
tiaries of the 2 Crowns have thought proper to make use of, for
ascertaining the points agreed upon, to the end that a good cor-
respondence may reign between the 2 Nations, and that the English
Workmen, Cutters, and Labourers may not trespass, from an uncer-
tainty of the boundaries. The respective Commissaries shall fix upon
convenient places, in the Territory above marked out, in order that
His Britannic Majesty's Subjects, employed in the felling of log-
wood, may, without interruption, build therein houses and magazines
necessary for themselves, their Families, and their effects; and His
Catholic Majesty assures to them the enjoyment of all that is expressed
in the present Article; provided that these Stipulations shall not be
considered as derogating in any wise from his Rights of Sovereignty.
Therefore all the English, who may be dispersed in any other parts,
whether on the Spanish Continent, or in any of the Islands whatso-






ever, dependent on the aforesaid Spanish Continent, and for what-
ever reason it might be, without exception, shall retire within the Dis-
trict which has been above described, in the space of 18 months, to
be computed from the exchange of the Ratifications; and for this
purpose Orders shall be issued on the part of His Britannic Majesty;
and on that of His Catholic Majesty, his Governors shall be ordered
to grant to the English, dispersed, every convenience possible for
their removing to the Settlement agreed upon by the present Article,
or for their retiring wherever they shall think proper. It is likewise
stipulated, that if any Fortifications should actually have been hereto-
fore erected within the limits marked out, His Britannic Majesty shall
cause them all to be demolished, and he will order his Subjects not
to build any new ones. The English Inhabitants, who shall settle there
for the cutting of logwood, shall be permitted to enjoy a free Fishery
for their subsistence, on the Coasts of the District above agreed on,
or of the Islands situated opposite thereto, without being in any wise
disturbed on that account; provided they do not establish themselves
in any manner on the said Islands."16

A lengthy discussion of this particular portion of the
treaty is unnecessary. That is why Article vi has been included
in its entirety. To read its terms is to understand the nature of
British and Spanish rights in the premises. The intent, there-
fore, of the short paragraphs which follow, is merely to under-
score the material portions of Article vi insofar as they bear on
the rights of the contracting parties.
The Article specifically declares that "English Settlements"
have been "formed" and "extended," under "pretence," on the
"Spanish Continent." Only the right of "cutting, loading, and
carrying away" logwood is granted to British subjects. The
section of territory within which this right may be exercised is
expressly declared and exactly defined as lying between the
Belize and the Hondo rivers. The British King agrees to cause
all fortifications erected, within the limits defined, to be
demolished. He also agrees to order his subjects not to build
new ones. What is most important, the stipulations which
define the grant are not, "in any wise," to be construed in
derogation of the sovereignty of the King of Spain.

16 I British and Foreign State Papers 649. See also Trats. Convs. y Decs. de
Paz y de Comercio (Cantillo, 1843), p. 588.






Under the terms of the agreement above noted, embodied
in Article vi, it would be very brash indeed to contend that the
subjects of His Britannic Majesty enjoyed any right other than
a simple right of usufruct. Any such assertion would have to be
made at the sacrifice of the most elementary legal principles
laid down for interpreting written instruments. It would re-
quire, lastly, that all caution and restraint be cast to one side.
In closing, attention must be called to the employment of
the word "Sovereignty." Great Britain, when she signed this
treaty with Spain, agreed that the stipulations, favoring British
subjects in the matter of "cutting; loading, and carrying away"
logwood, should not derogate, "in any wise," from the "Sov-
ereignty" of the King of Spain. Such an acknowledgment
constitutes, as it did in the Treaty of Paris,17 recognition of the
original authority, the eminence and the paramount nature of
the rights of Spain over the territory which is the subject
matter of Article vi of this treaty.




















17 See Chapter 3.








CHAPTER 5


THE CONVENTION OF LONDON

All of the pacts we have thus far examined, from the
Godolphin Treaty of 1670 to the Treaty of Versailles in 1783,
were drawn up and agreed upon following periods of hostility
between the powers in rival camps. All of them were treaties
of peace.
On July 14, 1786, Spain and England signed the Conven-
tion of London. Its purpose was to explain and extend
Article 6 of the Treaty of 1783, with reference to colonial
possessions in America. This is, therefore, the first agreement
to be considered, between Spain and Great Britain, which did
not follow on the heels of a war.
The preamble contains the usual laudatory remarks about
the high purposes of the instrument and the noble intentions
of the contracting parties. It is followed by a number of
provisions which may, in general, be stated to improve con-
siderably the position of the British in that section of the
American colonial world under consideration. For example,
we have already seen that by the Treaty of 1783, the British
were granted the privilege of cutting, loading and carrying
away logwood, in the territory between the Hondo and Belize
rivers.18 The agreement under consideration extended the area
within which the privilege might be exercised to the territory
lying between the Belize and the Sibin rivers. This added a
sizeable tract of land south of the previous limits granted,
within which the British were free to exercise their occupation.
In like fashion, while the Treaty of 1783 allowed the British
to cut only wood for dyeing,19 the agreement at hand allowed

18 See Chapter 4.
19 See Chapter 4.







the British to cut all other wood, without even excepting
mahogany.
The moving or vital sections of this pact, as they affect
the question of sovereignty or power over the destiny of Belize,
are contained in Articles m and vi, which read as follows:
"III. Although no other advantages have hitherto been in ques-
tion, except that of cutting wood for dyeing, yet His Catholic Majesty,
as a greater proof of his disposition to oblige the King of Great
Britain, will grant to the English the liberty of cutting all other wood,
without even excepting mahogany, as well as gathering all the fruits
or produce of the earth, purely natural and uncultivated, which may,
besides being carried away in their natural state, become an object of
utility or of commerce, whether for food or for manufactures; but it
is expressly agreed, that this Stipulation is never to be used as a pre-
text for establishing in that Country any plantation of sugar, coffee,
cocoa, or other like articles; or any fabric or manufacture by means
of mills or other machines whatsoever, (this restriction however does
not regard the use of saw mills, for cutting or otherwise preparing
the wood;) since all the Lands in question being indisputably
acknowledged to belong of right to the Crown of Spain, no Settle-
ments of that kind, or the Population which would follow, could
be allowed ."20
"VII. All the restrictions specified in the last Treaty of 1783, for
the entire preservation of the right of the Spanish Sovereignty over
the Country, in which is granted to the English only the privilege
of making use of the wood of the different kinds, the fruits and
other produce, in their natural state, are here confirmed; and the
same restrictions shall also be observed with respect to the new grant.
In consequence, the Inhabitants of those Countries shall employ them-
selves simply in the cutting and transporting of the said wood, and
in the gathering and transporting of the fruits, without meditating
any more extensive Settlements, or the formation of any system of
Government, either military or civil, further than such regulations
as Their Britannic and Catholic Majesties may hereafter judge proper
to establish ."21
It would be difficult to find a more telling analysis of the
articles above cited than the one advanced by Squier, who
states:

20 I British and Foreign State Papers 656. See also Trats. Convs. y Decs.
de Paz y de Comercio (Cantillo, 1843), p. 615.
21 I British and Foreign State Papers 659. See also Trats. Convs. y Decs. de
Paz y de Comercio (Cantillo, 1843), p. 616.







"Language is incapable of expressing more precisely the intention of
Spain to retain her rights of sovereignty over the district, the use of
which was conceded to the English settlers for the sole purpose of
cutting logwood and mahogany, and exporting the fruits of the earth
purely natural."22
There is no need, therefore, to give to this agreement any
more extended consideration than was accorded to others,
similar in nature, already dealt with. In previous cases, the
essential or decisive language was summarized for the purpose
of calling it to the reader's attention. The same procedure will
be followed in this instance.
The privilege of cutting wood is accompanied by a prohi-
bition against establishing any sugar, coffee, or cocoa planta-
tion. The reason given for this restriction is that "all the Lands
in question" are "indisputably acknowledged to belong of right
to the Crown of Spain." The British are also excluded from
forming any system of government, "either military or civil."
To them is granted "only" the privilege of making use of the
different kinds of wood. Finally, reference is made to all the
restrictions specified in the Treaty of 1783, for the "preserva-
tion" of the "right" of "Spanish Sovereignty."23 These restric-
tions are "confirmed," and it is also stipulated that the "same
restrictions" are to "be observed with respect to the new
grant."
Any attempt to expound further on the quoted language
for the purpose of defining British and Spanish rights respec-
tively, in relation to the nature of the grant, would be sheer
pedantry. What is important is that Great Britain, by signing
the pact, provided a conclusive written admission recognizing
Spanish sovereignty or power and all that the term implies, in
peace as well as after war.





22 States of Central America (Squier, 1858), pp. 580, 581.
28 See Chapter 4.










CHAPTER 6


THE PEACE OF AMIENS

The events of 1789 in France cast a long shadow over all
of Europe. Anarchy succeeded revolution. Military despotism
succeeded anarchy. War came shortly after. Before the forces
set in motion by the upheaval had run their course, almost
every state in Europe was shorn of territory or had its govern-
ment overthrown.24
Hostilities between England and France broke out in 1793.
The character of the period, between France's declaration of
war on February 1st and the peace of 1802, was complex.
Coalition followed coalition. Alliances were made and unmade.
Separate peace was concluded between participants on opposing
sides according to their interests. A satisfactory account of these
years would require extended historical treatment. The rapidity
with which patterns changed on the chessboard of Europe
might well have bewildered the spectator. At the beginning of
the conflict, for instance, Holland and Britain were allied
against France. A period of French military successes followed.
As a result the allies were compelled to evacuate the Austrian
Netherlands. Thereupon, the Franco-Dutch party formed the
Batavian Republic and concluded an alliance with the French
invaders. The situation regarding Spain was no less involved.
In 1793 Spain joined England in a coalition against the French.
At the close of the struggle, however, we find the powerful
British navy successfully blockading the French and Spanish in
all their principal ports.2
It is sufficient to note that war came to an end in 1802.
The peace was but an interlude before the tragic plunge into

24 Shorter History of England and Greater Britain (Cross, 1929), p. 581.
25 Shorter History of England and Greater Britain (Cross, 1929), Chap-
ter XLVI.







the era of Napoleonic wars. Peace nonetheless it was. The
treaty which ended this period of belligerency is known as the
Peace of Amiens from the fact that it was there signed on
March 27, 1802. The signatories were Great Britain on the one
hand, and France and her allies (Spain and the newly formed
Batavian Republic) on the other.
It had not at first been thought necessary to accord special-
ized treatment to the Peace of Amiens. However, Guatemala,
in the course of her statement on Belize, raises the very grave
question of a British claim to title by conquest.26 Therefore, it
is important that we consider carefully not only the authorities
which bear on the question, but the Peace itself with which the
question is inextricably bound.
The facts bearing on the claim of title by conquest are as
follows. When war broke out in 1793 Spain was, as we have
seen, allied with Great Britain in a coalition against the French.
In 1796, however, as a result of complexities alluded to at the
beginning of this chapter, Spain found herself on the side of
the French and at war with Great Britain. In consequence,
according to an account by Asturias,27 the Spanish government
ordered the Viceroy of New Spain and the Governors of Yuca-
tan and Havana to eject the British from Belize. An expedition
of some magnitude, comprising ships and men, commanded by
the Captain General D. Arturo O'Neill, was prepared. After
long delay, the expedition finally reached the shores of Belize
in the latter part of 1798. On seeing how well prepared the
colonists were, however, O'Neill prudently withdrew the
expedition to Yucatan and no action ensued.
Sir John Alder Burdon, Governor of British Honduras
from 1925 to 1931, offers a different version of the same
event.28 An armed clash did occur, he states. The Spanish flo-
tilla, according to his account, was first repulsed in an attempt
to force a passage through the shoals to Belize. Then, on Sep-
tember 10th, fourteen Spanish ships, some towing launches
28 White Book, pp. 45, 45A, 45B.
27 Belice (2nd Ed. 1941), p. 70.
28 Archives of British Honduras (1931), Vol. I, pp. 26, 27, 28.







filled with soldiers, bore down on St. George's Key. The
British forces engaged them in an action lasting two and one
half hours, at the end of which the Spaniards fell into confu-
sion, cut their cables and beat a retreat.
Ephraim G. Squier, a former Charge d'Affaires of the
United States to the Republics of Central America, also de-
scribes the occurrences of 1798.29 His description is in substan-
tial agreement with the account given by Burdon. He states,
however, that the contest between the settlers and the Spanish
was of two days' duration.
At any rate, whether fighting did or did not ensue, the
issue Guatemala raises touching on British title by conquest is
not to be lightly taken. The claim based upon O'Neill's un-
successful expedition has been made.0 Not the least of its
proponents was the British Foreign Secretary, Lord Granville,
who, in correspondence with the United States in 1882, con-
tended that the territory in question had become British by
conquest.31
The validity of the claim is, of course, a question separate
and distinct from the claim proper. Let us even assume the
correctness of the fact that there was an engagement off
St. George's Key. It would make a frail structure indeed on
which to rest the mantle of title by conquest, whether the
fighting lasted for two hours or for two days. It is interesting,
at this point, to note the comment made by Burdon, who
governed the British colony for some time. In considering the
contention of the inhabitants, made after the O'Neill affair,
that the settlement on the Bay of Honduras was British by
right of conquest, he states:
"This term [conquest] may not be strictly accurate as a description
of the event ."32

29 The States of Central America (1858), p. 581.
30 The States of Central America (Squier, 1858), pp. 581, 582; Enc. Brit.
(1947), Vol. 4, p. 201; Belice (Asturias, 1941), p. 70; Archives of British
Honduras (Burdon, 1931), Vol. I, p. 29.
31 Anglo-American Isthmian Diplomacy, 1815-1915 (Williams, 1916),
p. 283.
32 Archives of British Honduras (1931), Vol. I, p. 29.






In any case, authentic official documents exist which had
their origin after 1798. Their existence makes the question of
title by conquest an academic one only. Some of the documents
bearing on the matter will be considered in the chapters that
follow. The applicable portion of one of them, the Peace of
Amiens, will be examined here. That portion is contained in
Article m which reads as follows:
"III. His Britannic Majesty restores to the French Republic and her
allies, namely, his Catholic Majesty and the Batavian Republic, all
the possessions and colonies which belonged to them respectively, and
which had been occupied or conquered by the British forces in the
course of the war, with the exception of the island of Trinidad, and
the Dutch possessions in the island of Ceylon."33
Here then is the insurmountable obstacle in the path of a
claim to title by conquest. It is the reason why we have stated
consideration of such a question to be academic only. To put
the matter bluntly, even if we concede conquest in 1798, resto-
ration is made in 1802. The exceptions specifically made in
Article m serve only to emphasize this more strongly. The
conquest, if such there be, is washed away by contract. It is
completely nullified and made inoperative by Article in of the
treaty. This article, in effect returns both Spain and England
to the status they occupied in relation to one another, prior to
the incidents growing out of the expedition under O'Neill.
In the face of an assumption of conquest, Article ni is
tantamount to a declaration reaffirming Spanish sovereignty
over Belize. By the same token, it reaffirms the position of
Great Britain in that territory as a usufructuary only. In con-
clusion, the terms of the Peace of Amiens should end, once and
for all, any serious consideration of the contention that the
British hold title to Belize by right of conquest.



33 Corr. between Gr. Brit. and France, presented by H. M.'s command to
Parliament, 18 May, 1803 (Printed for John Stockdale, London, 1803), appen-
dix. See also Trats. Convs. y Decs. de Paz y de Comercio (Cantillo, 1843),
p. 703.


36











CHAPTER 7


THE TREATY OF MADRID

The wars set in motion by the French revolution ravaged
all of Europe. They continued with unabated fury throughout
the early part of the 19th century. If hostilities were inter-
rupted, the interruption was only temporary. The respite was
at best an armed peace.
The basic character of the conflict, however, was under-
going a significant change. In the beginning, Great Britain's
continental allies were not peoples. They were absolute mon-
archs concerned with maintaining their power and preserving
or extending their boundaries. The French government had
been a republic engaged in a general crusade for liberty.
With time, it was transformed into a military despotism aim-
ing at territorial aggrandizement. The effect was to produce
a great national re-awakening in Spain, Russia and Prussia.34
In the critical weeks before the battle of Jena, Napoleon
learned of the mobilization of the Spanish army. He also found
proof in the captured Prussian archives of Spanish plots against
France. Napoleon decided he could no longer trust the seem-
ingly docile Spanish government. Under the pretext of forc-
ing Portugal to adopt his economic system, directed against
Great Britain, he introduced large numbers of French troops
into the towns of northern Spain. Then he cajoled the quar-
reling members of the Spanish royal family into meeting him
on French soil at Bayonne. There he intimidated them into
resigning their rights to the Spanish throne and appointed his
brother, Joseph, king. There followed a series of decrees that
bruskly imposed on the Spanish people an administrative sys-
tem patterned after that of Napoleonic France. Feudal dues

34 Shorter History of England and Greater Britain (Cross, 1929), p. 587.






and the Inquisition were abolished. Interior customs lines met
the same fate. The number of monastic institutions was re-
duced. These high handed measures wounded the pride, and
disregarded the dignity and rights of the Spanish people. They
were stirred to action. On May 2, 1808, the populace of
Madrid flung itself on the French garrison and drove it from
the city."3
In a matter of weeks, 150,000 untrained, ill-armed men
volunteered for the national uprising against Napoleonic rule.
They were unfitted to cope with the veteran armies of France
in pitched battle. They took advantage of the broken character
of the country, however, and carried on guerilla warfare.
Napoleon was, therefore, compelled to keep large bodies of
troops in Spain. This seriously strained the resources of the
French treasury. The success of these men encouraged the
British government to intervene in the peninsula. British reg-
ulars under the command of Wellington, aided by Spanish
volunteers, began to drive the French out of Portugal and
Spain. By 1811 they had expelled the French from Portugal.
After two more years of fighting, they had cleared Spain of
French troops and had forced their way into southern France.36
These were the events which formed the background of
the Treaty of Madrid between Spain and England. It was
signed on July 5, 1814. It was not a treaty of peace. It did
not adjust boundaries or agree to compromises as is customary
following the settlement of a dispute. The treaty stemmed
from the fact that the British had been instrumental in liberat-
ing Spain from the Bonapartist yoke. It was a treaty of friend-
ship and alliance.
The terms of the treaty proper do not bear on the ques-
tion of Belize. On August 28, 1814, however, Great Britain
and Spain signed three additional Articles, which they agreed
were to form an integral part of the treaty of friendship and

35 History of Modern Europe (Higby, 1932), p. 19.
36 History of Modern Europe (Higby, 1932), p. 20.








alliance of July 5, 1814, above referred to. Of the three, only
Article I is relevant to the dispute about Belize. It is as follows:

"Art. I. It is agreed that, pending the negotiation of a new Treaty
of Commerce, Great Britain shall be admitted to trade with Spain
upon the same conditions as those which existed previously to the
year 1796. All the Treaties of Commerce which at that period sub-
sisted between the 2 Nations, being hereby ratified and confirmed."37
There is a difference of opinion about the effect of
Article i. No clear-cut concept exists as to just what the
Article accomplished. One view holds that Artice I revived
the treaties of 1783 and 1786.38 The other states that the
provisions of the treaty of 1786 were revived, and omits any
reference to the pact of 1783." While the point is not of the
essence, there is an obligation, in view of what has been stated,
to pay particular attention to the wording of the Article.
When this is done, one incontrovertible fact stands out. The
treaties it revived were "Treaties of Commerce."
The Treaty of 1783, as we have already seen, was signed
between Great Britain and the American colonial allies, France
and Spain, at the close of hostilities which led to recognition
of American independence.40 Neither from its antecedents,
nor from its terms can it be classified as a treaty of commerce.
Using the same yardsticks of measurement, however, the Treaty
of 1786 can be so defined.41 It is, therefore, proper to con-
clude that what was revived was the Treaty of 1786, and
not that of 1783.
This, notwithstanding, does not completely terminate the
matter. The purpose of the Treaty of 1786 was declared to
be the explanation and extension of Article vi of the Treaty
of 1783, with reference to colonial possessions in America.

37 I British and Foreign State Papers 292. See also Trats. Convs. y Decs.
de Paz y de Comercio (Cantillo, 1843), p. 733.
38 Boundaries Possessions and Conflicts in Central and North America and
the Caribbean (Ireland, 1941), p. 124.
39 States of Central America (Squier, 1858), p. 582.
40 See Chapter 4.
41 See Chapter 5.






Therefore, while it is true that Article I of the present agree-
ment did not revive the entire Treaty of 1783, it is reasonable
to conclude that Article VI of that agreement was revived.
This is due to the fact that it was incorporated by reference
into the terms of the later treaty of commerce of 1786.
We have, then, under the present agreement, a renewal
of the terms of Article vi of the Treaty of 1783, and of Articles
In and vn of the Treaty of 1786. The language employed
therein, insofar as it was related to a definition of, Spanish
and British rights in and over the territory of Belize, has
already been analyzed in preceding chapters.4 It is sufficient
to note the conclusions previously drawn. By the terms of the
treaties above referred to, the British were given the right to
cut, load and carry away logwood. They enjoyed merely the
right to use certain products of the land. By the same terms,
Great Britain recognized, beyond possibility of question, Span-
ish right and sovereignty in and over the territory of Belize.
In effect, Additional Article I to the Treaty of Madrid is,
therefore, a re-statement of Great Britain's position as a
licensee, and of Spain's position as an owner. From the point
of view of the controversy between them, the agreement of
1814 makes one conclusion apparent. It is that Great Britain,
over a quarter of a century later, still acknowledged the fact
that she enjoyed nothing more than a right of usufruct and
still conceded Spanish right and sovereignty over the territory
within which she was permitted to exercise her license.










42 See Chapters 4 and 5.











CHAPTER 8


THE ACTS OF PARLIAMENT

The Acts of Parliament with which this chapter is con-
cerned are generally referred to as the Acts of 1817 and 1819,
from the fact that they were enacted in those years. The former
is Chapter 53 of the laws passed in the 57th year of the reign
of George III. The latter is Chapter 44 of the laws passed
in the 59th year of the same monarch's reign. These Acts have
been cited innumerable times against Great Britain's preten-
sions in Belize or British Honduras, as evidence, one might
say, of an admission against interests. It would be sheer osten-
tation to compile a list of authors or works adducing these
Acts in argument. Even James Buchanan, United States Minis-
ter to Great Britain, had recourse to them for the purpose of
demonstrating the restricted scope of Great Britain's rights in
the territory. He did so in a statement of January 6, 1854, to
Lord Clarendon, British Secretary of State for Foreign Af-
fairs.4
Prescinding from the origin of the question and the
period of its duration, the fact is that in 1817 and 1819, Great
Britain, through her subjects, found herself engaged in cer-
tain activities within the confines of British Honduras. The
pertinent question raised concerns the capacity in which these
activities were exercised. An answer to the question was made
by Parliament when it passed the Acts of 1817 and 1819. It
gave to the world a legislative estimate of the role of Great
Britain in relation to British Honduras. The Acts defined the
capacity in which Great Britain functioned within the limits
of the territory concerned.

43 Dipl. Corr. of the U. S. (Manning, 1936), Vol. VII, p. 518.






No better source can be had for the definition than the
Acts themselves. The Act of 1817 states:
"An Act for the more effectual Punishment of Murders and Man-
slaughters committed in Places not within His Majesty's Dominions.
(27th June 1817.)
WHEREAS grievous Murders and Manslaughters have been com-
mitted at the Settlement in the Bay of Honduras in South America,
the same being a Settlement, for certain Purposes, in the Possession
and under the Protection of His Majesty, but not within the Ter-
ritory and Dominion of His Majesty, by Persons residing and being
within the said Settlement; whereby great Violence has been
done, and a general Scandal and Prejudice raised against the Name
and Character of British and other European Traders: And Whereas
such Crimes and Offences do escape unpunished, by reason of the
Difficulty of bringing to Trial the Persons guilty thereof: For Rem-
edy whereof be it enacted by The King's Most Excellent Majesty, by
and with the Advice and Consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assembled, and by
the Authority of the same, That from and after the passing of this
Act all Murders and Manslaughters committed or that shall be com-
mitted on Land at the said Settlement in the Bay of Honduras by
any Person or Persons residing or being within the said Settlement
S. shall and may be tried, adjudged and punished in any of His
Majesty's Islands, Plantations, Colonies, Dominions, Forts or Fac-
tories, under or by virtue of The King's Commission or Commissions,
which shall have been or which shall hereafter be issued under and
by virtue and in pursuance of the Powers and Authorities of an Act
passed in the Forty-sixth Year of His present Majesty, intituled An
Act for the more Speedy Trial of Offences committed in distant Parts
upon the Sea, in the same manner as if such Offence or Offences
had been committed on the High Seas."44
The Act of 1819 declares:
"An Act to amend an Act passed in the Fifty seventh Year of His
present Majesty, for the more effectual Punishment of Murders, Man-
slaughters, Rapes, Robberies and Burglaries committed in Places not
within His Majesty's Dominions, as relates to the Trial of Murders,
Manslaughters, Rapes, Robberies and Burglaries committed in Hon-
duras. (21st June 1819.)
WHEREAS by an Act passed in the Fifty seventh Year of His present
Majesty, intituled An Act for the more effectual Punishment of
Murders and Manslaughters committed in Places not within His Ma-
44 Statutes at Large (1819), Vol. VII, U. K., A.D. 1817; 57 Geo. III.-
A.D. 1819; 59 Geo. III., p. 94.







jesty's Dominions, it was among other things provided and enacted,
that from and after the passing of that Act, all Murders and Man-
slaughters committed, or that shall be committed on Land at the Set-
tlement in the Bay of Honduras, by any Person or Persons residing
or being within the said Settlement, shall and may be tried, adjudged
and punished in any of His Majesty's Islands, Plantations, Colonies,
Dominions, Forts or Factories, under or by virtue of The King's Com-
mission or Commissions which shall have been, or shall hereafter be,
issued under and by virtue of an Act passed in the Forty sixth Year
of His present Majesty, intituled An Act for the more Speedy Trial
of Offences committed in distant Parts upon the Sea: And Whereas
Doubts have arisen whether in the said Settlements in the Bay of
Honduras, there be a Fort or Factory to which a Commission may
issue for the Trial of Offences under the said last mentioned Act:
And Whereas by reason of such Doubts, and the great Delay and
Difficulty of removing Offenders in Honduras for Trial to England,
or to any of His Majesty's Islands, Plantations, Colonies, Dominions,
Forts or Factories, such Crimes do oftentimes escape unpunished; For
Remedy thereof, be it enacted, by The King's Most Excellent Majesty,
by and with the Advice and Consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assembled, and by
the Authority of the same, That from and after the passing of this
Act, all Murders, Manslaughters, Rapes, Robberies and Burglaries
committed, or that shall be committed on Land, at the said Settlement
in the Bay of Honduras, may be enquired of, tried, heard, determined
and adjudged, within the said Settlement in the Bay of Honduras,
under or by virtue of The King's Commission or Commissions, under
the Great Seal of Great Britain, to be directed to any such Four or
more discreet Persons, as the Lord Chancellor of Great Britain, Lord
Keeper or Commissioners for the Custody of the Great Seal of Great
Britain, for the time being, shall from time to time think fit to ap-
point, in the same manner as is provided and enacted with respect
to any Crimes directed to be enquired of, heard, determined or ad-
judged, under and by virtue of any Commission issued under and by
virtue of the aforesaid Act of the Forty sixth Year of His present
Majesty, in any of His Majesty's Islands, Plantations, Colonies, Do-
minions, Forts or Factories.
II. And be it further enacted, That the Commissioners so to be ap-
pointed, or any Three of them, shall have such and the like Powers
and Authorities for the Trial of all such Murders, Manslaughters,
Rapes, Robberies and Burglaries, committed within such Settlement
in the Bay of Honduras, as any Commissioners appointed or to be
appointed under the said Act of the Forty sixth Year of His present
Majesty have, or would have, for the Trial of any Offences com-
mitted upon the Seas; and all Persons convicted of either of the said
Offences so to be tried by virtue of any Commission to be issued ac-
cording to the Directions of this Act shall be subject and liable to,







and shall suffer all such and the same Pains, Penalties or Forfeitures,
as by any Law or Laws now in force Persons convicted of the same
respectively would be subject and liable to in case the same were
respectively enquired of, tried, heard, determined and adjudged, within
any of His Majesty's Islands, Plantations, Colonies or Dominions, by
virtue of any Commission made according to the Directions of the
aforesaid Acts of the Forty sixth and Fifty seventh Years of His
present Majesty, or either of them; any Statute, Law or Usage to the
contrary notwithstanding."45
We need only examine the language employed by Parlia-
ment to perceive clearly the evaluation it placed upon Great
Britain's presence in the territory. The title of the Act of 1817
deals with the punishment of certain crimes committed in
places not within His Majesty's dominions. The text of the
Act lists the settlement in the Bay of Honduras as one of
those places. While the body of the Act also says that the
settlement in the Bay of Honduras is outside of the territory
and dominion of the King, it declares that, for certain pur-
poses, it is within the possession and under the protection of
His Majesty.
Let us first consider the statement that the settlement was
outside of the King's dominions. This plainly constitutes an
acknowledgement that it did not fall within the jurisdiction of
the vast, sprawling and diverse territories comprising the
British Empire or Commonwealth. Our attention is, therefore,
next called to the additional declaration that the settlement
was in the possession and under the protection of the King for
certain purposes. No serious objections can be lodged against
conclusions reasonably drawn from its terms. The only ones
suggesting themselves are that the nature of the possession
was materially curtailed; that Great Britain was specially but
not generally possessed of the territory; and finally, that she
did not hold the territory adversely against the whole world.
The possession, therefore, can only be viewed as being
expressly limited by the purposes for which it was held. Those

45 Statutes at Large (1819), Vol. VII, U. K., A.D. 1817; 57 Geo. III.-
A.D. 1819; 59 Geo. III., p. 721.








purposes are stated by Squier46 as nearly being those set forth
in the Treaty of 1786,47 revived in 1814.48 They were, as a
result, the cutting, loading and carrying away of logwood,
and the enjoyment of the fruits of the earth, purely natural.
We have examined treaties showing Great Britain's posi-
tion in Belize to be that of a mere licensee with a right of
usufruct. Here, then, is a Parliamentary declaration which,
in substance, establishes the same thing.
As to the Act of 1819, it re-affirms the conclusions already
drawn from the language of the Act passed two years pre-
viously. It does so, however, in a different fashion. The Act
of 1819 recites that the previous Act provided for trial, judg-
ment and punishment in any of the King's islands, plantations,
colonies, dominions, forts or factories, by virtue of a King's
commission. It then draws attention to the doubts surrounding
the existence of a fort or factory in the settlement of Honduras
to which a commission might issue for trial. The Act of 1819
then clarifies the situation by permitting trial and judgement
in the settlement, for crimes there committed, by virtue of a
King's commission.
We have here an indirect or negative way of stating Great
Britain's limitations in that territory. The only doubt that
existed was whether there was a fort or factory in the settle-
ment to which a King's commission might issue. There was
no doubt at all, evidently, that the settlement was not one of
His Majesty's islands, plantations, colonies or dominions. This
is brought out even more sharply in the latter part of Article I
as well as in Article II of the Act. The latter part of Article I
lays down the procedural requirements related to trial of the
offenses enumerated in the Act. In this regard, it states that
trial, hearing, decision and judgment shall be the same as
that which prevails with respect to crimes committed in any
of His Majesty's islands, plantations, colonies, dominions, forts
46 States of Central America (1858), p. 582. See also Nuestro Belice
(Vela, 1939), p. 60.
47 See Chapter 5.
48 See Chapter 7.







or factories. Article n considers the penalty attendant upon
the offence committed. It specifies that the penalty shall be
the same to which a person convicted would be subject and
liable in case that person were tried, heard and judged within
any of the King's islands, plantations, colonies or dominions.
The inference is obvious, therefore, that the settlement was
not considered by Parliament as one of His Majesty's islands,
plantations, colonies or dominions.
What then was the status of the settlement in the Bay of
Honduras? The Act of 1817, directly, and the Act of 1819,
by inference, show that it was considered to be nothing more
than a holding within which Great Britain held a license to
gather wood.


46









CHAPTER 9


THE ARCHIVES OF BRITISH HONDURAS

The early part of the 19th century witnessed the revolt
and the political emancipation of the Spanish provinces com-
Sposing the Captaincy General of Guatemala. Shortly there-
after, this territory was admitted as a full-fledged member into
the family of nations.
The emergence of the new state on the world scene was
not without certain complications attendant upon its arrival.
One of the questions posed concerned the status of Belize.
The greater portion of Belize had formed part of the adminis-
trative division of the Captaincy General of Guatemala.49
Spain, in the proper exercise of her sovereignty, had granted
a right of usufruct therein to Great Britain. What now was
the relationship of Great Britain to this holding? The Cap-
taincy General of Guatemala had asserted and maintained its
independence of Spain and had acquired the privileges and
prerogatives of a state. Did Great Britain hold the territory
free and clear? Did she hold it in usufruct subject to the
newly acquired sovereignty of Guatemala? Were her rights
in the settlement completely extinguished by the latest turn
of events?
There is no unanimity of opinion on this question. Some
Latin-American authors claim that the states which emerged,
following the revolution, came into the new period of their
national existence unencumbered by any servitudes which may
have been placed upon their territory by agreement between
Spain and any third parties.50 Thus, according to their point
of view, when Guatemala obtained her independence she ob-

49 Nuestro Belice (Vela, 1939), Chapter XVI.
5o Cont. del Libro Blanco (Anderson, 1939), I, p. 19; Britain and Her
Treaties on Belize (Mendoza, 1947), p. 294.






trained it free and clear. The usufruct which Spain had granted
to Great Britain was wiped out and Great Britain possessed
no right at all -not even the right to gather wood. Other
Hispanic writers contend that the new states emerged subject
to the servitudes imposed by Spain in her treaties of 1783 and
1786 with Great Britain.51 Fortunately, it is not necessary to
burden this work by deciding the question which is, at best,
tangential to the main issue. Whether Guatemala emerged
free of any servitudes imposed on her territory by Spain will
not essentially affect the conclusions finally arrived at in this
chapter. Neither, as we shall see, will it affect the decisions
reached in the chapter entitled The Purport of the Preamble
and of Article I. In consequence, we shall confine ourselves
to examining a more pertinent aspect of the main problem.
This is the phase of the question which deals with the at-
titudes of both Spain and Great Britain in relation to Guate-
malan independence.
Spain was not long in recognizing that the sovereignty
which she had exercised over these regions was now vested in
the newly constituted republic. By a.decree of the Cortes, of
December 4th, 1836, the Government of Spain was authorized,
on the basis of certain terms, to conclude treaties of peace and
friendship with the new states of Spanish-America. The terms
were explicitly stated to be recognition by Spain of the in-
dependence of the new states and renunciation by Spain of all
her ancient territorial or sovereign rights.52
Pursuant to this authorization, a treaty of recognition,
peace and friendship between Spain and Guatemala was
signed at Madrid on May 29, 1863.53 The treaty recognized
Guatemala as a free, sovereign and independent nation com-
posed of all the provinces mentioned in its existing constitu-
tion, and of those territories, besides, which legitimately belong

51 Belice (Fabela, 1944), pp. 177-181; Cont. del Libro Blanco (Fonseca,
1941), 2nd Series, II, p. 58.
52 Col. Leg. de Espaiia (Madrid, 1837), Vol. 21, pp. 584, 585.
53 59 British and Foreign State Papers 1200. Rats. Exch. June 20, 1864.







or may hereafter belong to it. By this treaty, Spain renounced
in every form and forever, for herself and her successors, the
sovereignty, rights, and powers which she may have had over
the territory of the Republic of Guatemala.
While Spanish recognition of Guatemala came belatedly,
we are compelled to note that it was made pursuant to a legis-
lative decree of 1836. The decree was the enabling act under
which the treaty between Spain and Guatemala was drawn.
The decree itself constitutes a recognition of the true state of
affairs in Central America. In effect, it acknowledges that
the new republics, among which was Guatemala, had asserted
and maintained their independence from the mother country,
and had inherited the rights formerly exercised by Spain in
that portion of the world.
Great Britain accredited a Consul to Guatemala in 1825."
On February 20, 1849, she also signed a treaty of friendship,
commerce and navigation with the new state.55 Her attitude
with relation to the whole problem of Belize was, neverthe-
less, difficult to understand. Despite Spanish renunciation of
sovereignty over the territory, and British recognition of the
newly formed state, Great Britain, through her diplomatic
agents, contended that the question of her tenure there could
be entertained with Spain alone. This is apparent from a let-
ter written by Lord Palmerston56 which states in part:
"To what extent the events which have occurred since the Treaties
with Spain of 1783 and 1786 may justly be held to have changed
the nature of the British tenure of Honduras, is a question which
may become in due time a subject for discussion with Spain."57
Nor was this the only anomaly presented. British activi-
ties in relation to the territory of Belize were, to be sure, also
at variance with the position she had officially adopted on

54 Archives of British Honduras (Burdon, 1934), Vol. II, p. 287.
55 37 British and Foreign State Papers 32. Rats. Exch. June 16, 1849.
56 John Henry Temple, third Viscount Palmerston (1784-1865), Secy. of
State for For. Affairs in the Admn. of Lord Grey in 1830. He held the office for
the next 11 years continuously, except for the 4 months (Dec. 1834 to April
1835) during which Sir Robert Peel was Premier.
57 Archives of British Honduras (Burdon, 1934), Vol. II, p. 372.






the question. James Buchanan, United States Minister to Great
Britain, who considered the results which flowed from the
revolt of the Spanish colonies, made this quite clear. In a let-
ter of January 6, 1854, to Lord Clarendon, British Secretary
of State for Foreign Affairs, he said:
" ... It would be a work of supererogation to attempt to prove, at
this period of the World's history, that these Provinces having by
a successful revolution become independent States, succeeded, within
their respective limits, to all the territorial rights of Spain. This will
surely not be denied by the British Government which took so noble
and prominent a part in securing the independence of all the Spanish
American provinces.
Indeed Great Britain has recorded her adhesion to this principle of
international law in her Treaty of the 26th December 1826, with
Mexico, then recently a revolted Spanish Colony. By this Treaty,
so far from claiming any right beyond the usufruct which had been
conceded to her under the Convention with Spain of 1786, she rec-
ognizes its continued existence and binding effect as between herself
and Mexico by obtaining and accepting from the Government of the
latter a stipulation that British subjects shall not be 'disturbed or
molested in the peaceable possession and exercise of whatever rights,
privileges and immunities they have at any time enjoyed within the
limits described and laid down' by that Convention. Whether the
former Spanish Sovereignty over Belise, subject to the British usufruct,
reverted of right to Mexico or to Guatemala may be seriously ques-
tioned; but, in either case, this recognition by Great Britain is equally
conclusive."58

Ephraim G. Squier9 also touched upon this matter in
the section of his book devoted to British Honduras. He re-
marked as follows:
"... after the independence of the Spanish American provinces,
Great Britain, not knowing within which new republic the territory
of Belize might fall, sought to secure her rights there by incorporat-
ing the provisions of the treaty of 1786 in all of her treaties with
the new states, It was, in fact, incorporated in her treaty of 1826
with Mexico; was included in the project of a treaty which she sub-
mitted to Sefior Zebadua, the representative of the Republic of Central
America in London, in 1831, but which failed from the want of
adequate powers to negotiate on the part of that representative; and

58 Dipl. Corr. of the U.S. (Manning, 1936), Vol. VII, p. 518.
59 See page 35.








was incorporated also in the project of a treaty submitted to New
Granada in 1825, from which it was omitted by New Granada, as
relating to territory beyond and never within her jurisdiction. Great
Britain, therefore, is without legitimate rights in Belize beyond those
conveyed by the treaties already quoted, which define with the greatest
precision the area within which these qualified rights may be exer-
cised."60
In view of the facts recorded by both Buchanan and
Squier, it becomes necessary to resort to some reliable British
authority for the purpose of ascertaining the actual state of
the British mind with reference to the nature of their holding
in Belize or British Honduras. No more trustworthy British
source exists than the Archives of British Honduras by Major
Sir John Alder Burdon, K.B.E., C.M.G., M.A., Governor and
Commander-in-Chief in and over the Colony of British Hon-
duras, 1925-1931. The Archives are in three volumes pub-
lished respectively in 1931, 1934 and 1935. Volume I, from
the earliest date to 1800, consists of extracts and pr6cis from the
records, with maps. Volume II, from 1801 to 1840, and Volume
III, from 1841 to 1884, consist of extracts and precis taken by
a committee from such records as exist in the colony, with maps.
The Archives of British Honduras are invaluable in a
study of the question. They offer a complete and well rounded
view of the entire problem. They record, with regularity
and accuracy, the opinions of competent officials in the mother
country, as well as the views of intermediate authorities in
Jamaica, and of local functionaries within the settlement prop-
er. (Perhaps the best description of the Archives is that given
by Arthur Percival Newton in his introduction to Volume I:

"Isolated possessions such as these are like chips split off in the carv-
ing of the great masses of rival empires. As they struggled for domin-
ion beyond the seas, fragments were left here and there that did not
follow the course of the larger provinces. Their origin is forgotten
and their story neglected by the historians who confine their attention
to the centre of the conflict, but if we really desire to record the
continuous story of the past and trace all the influences that were at
work to shape our empire's growth, we cannot safely afford to pass

60 The States of Central America (1858), p. 582.







over all the skirmishes of outposts and watch merely the struggles of
the big battalions They [students) will, for the first time, here
find access to the documentary material of a colony that has been too
little known. A study of it cannot fail to aid in illuminating some
obscure points in wider fields of policy."61
We have already taken note of the implications flowing
from the Acts of Parliament of 1817 and 1819.62 The pertinent
sections of the Archives, below transcribed, commence, there-
fore, with the year 1820, and cover the period from that year
to 1862 inclusive. They illustrate, as no other source could
possibly have done, the real nature of British rights over the
territory of Honduras. They are as follows:
"1820, July 10th. M.M.D.
Public Meeting, 23 present. (As twice adjourned owing to
paucity of members.)
It is pointed out that, under the Treaty of Peace of 1783
and the Convention with Spain of 1786, the cutting of mahogany
and Dye-woods is the only privilege granted to the Inhabitants of
the Settlement .",3

"1821, September 22nd. R. 3.
Secretary of State to Superintendent.
In reply to despatch requesting to be informed whether slaves
can be legally imported into Honduras from any other British Posses-
sion in the West Indies.
Acquaints him that Honduras not being a British Colony, any
importation of Slaves into it, other than what the law allows, from
a British Colony to a foreign possession is illegal, and that the only
removal of Negroes from a British Colony to a foreign possession
which is authorized is that of Slaves attending their Masters or Mem-
bers of their Masters' families."64

"1822, March 16th. R. 3.
Secretary of State to Superintendent.
Acknowledges despatches reporting instances of oppression and
cruelty towards slaves and steps for enforcement of the Consolidated
Slave Law of Jamaica. In view of the opinion of the Attorney Gen-
eral of Jamaica and the possibility of unbounded oppression were

81 Pp. XII, XV.
62 See Chapter 8.
63 Archives of British Honduras (Burdon, 1934), Vol. II, p. 230.
4 Ibid., Vol. II, p. 240.








there no legal protection for Slaves, authorises the Superintendent to
act on that Law. But advises against enforcement of 'any provision
which goes to the loss of life or limb', because 'the right of enforc-
ing any Law in a Territory not ceded to His Majesty rests upon such
questionable authority the authority of a Superintendent on
Shore is of so doubtful a nature in point of Law that it may be con-
sidered rather as conventional than strictly legal' ."65

"1823, July 3rd. R. 3.
R. Wilmot Horton of the Colonial Office to Superintendent.
Sends copy of a Bill to be introduced into Parliament for the
establishment in Honduras of a Court of Justice in Civil Cases. Re-
quests the opinion of reliable persons in the Settlement. Hopes that
by discussion of the tenure of the Settlement with the Court of
Spain some Concession may be obtained with respect to the abstract
right of legislation for the Colony .. "66

"1825, May 7th. R. 5a.
Mr. Horton, Downing Street, to Superintendent.
Requests transmission of a Map showing boundary of the Set-
tlement as at present claimed. Encloses a private letter to himself
asking him to remind the Foreign Office to obtain from Guatemala
a recognition of the Boundaries of the Colony of Honduras, men-
tioning the independence of that State and urging the necessity for
its recognition of the Boundaries in any treaty. 'Indeed looking to
the sweeping claims of Sovereignty Spain maintained to the whole
Country the recognition of our rights should be a stipulation in all
the treaties with the new South American States.' "67


"1829, December 1st. P.R. 2.
Grant of land by the Superintendent recorded.

The grant is accompanied by a proviso that no compensation can
be claimed in consequence of any future treaty with Spain or any
evacuation or other measure for the welfare of the Settlement."68

"1832,. April 27th. R. 2.
Magistrates to His Majesty's Superintendent.
Relative to Colonial Office Circular and Order in Council as to
65 Ibid., Vol. II, p. 255.
66 Ibid., Vol. II, p. 274.
67 Ibid., Vol. II, p. 285.
68 Ibid., Vol. II, p. 313.







reduction of Tonnage Duties on vessels of the United States arriving
at the Settlement, submits that 'from the circumstances of this Set-
tlement not being considered at the Colonial Office as a Colony, we
have hitherto been allowed not only to make our municipal Laws,
but also regulations for our Commercial intercourse with foreigners
"69


"1833, January 30th. R. 6d.
Superintendent to Secretary of State.
If this place is to be permanently retained to Great Britain,
and the number of Ships we give employment to, the quantity of
Manufactures we afford sale to and the amount of Revenue we
return to the Parent State will all speak in its favour, the sooner it
is benefitted by being placed on a footing with other Colonies the
better.' "70

"1834, April 15th. R. 9b.
Secretary of State to Superintendent.
In reply to a Memorial asking for permission to cultivate the
soil. Replies that it is not a favourable moment to discuss the ques-
tion with Spain."71

"1834, May 15th. R. 8c.
Superintendent to Messrs. P. C. Moore and I. Sharpe, .
'I had no intention whatever of calling in question the Power of
the Archbishop to grant Faculties within the British Dominion,
but inasmuch as I consider Honduras without the British Dominions,
I deemed it expedient to express my doubts as to His Grace's Power
extending thereto.' "72

"1834, December 1st. R. 9b.
Secretary of State to Superintendent,
Forwarding the application by a Gentleman of Spanish extraction
for a license to trade as a Merchant in the Settlement.
States that if he is a Spanish Subject he would seem to have a
right to carry on any lawful business there, but that if he is a subject
of Central America or Mexico it may be difficult for the British Gov-
ernment to confer any rights upon him. Adds that it would be equally
beyond their power to exercise any right of Sovereignty and exclude
him as a foreigner."73

69 Ibid., Vol. II, p. 335.
70 Ibid., Vol. II, p. 345.
71 Ibid., Vol. II, p. 353.
72 Ibid., Vol. II, p. 354.
73 Ibid., Vol. II, p. 362.







"1835, February 13th. R. 11.
Mr. Miller to Mr. Gladstone, Under Secretary of State, . .
States that no outside capital can be expected to come into the
country until the questions of sovereignty and boundaries are settled."74


"1835, March 10th.. R .11.
Mr. Miller to Superintendent.
Reporting that the Duke of Wellington had decided to instruct
the British Ambassador in Madrid to enter into negotiation for ob-
taining assignment to Great Britain of the Sovereignty of Honduras
as far South as the Sarstoon."75


"1835, March 20th. R. 11.
Mr. Miller to Superintendent,
Reporting that he has been sent to Madrid to carry the instruc-.
tions to the British Ambassador, and to assist him in the matter of the
negotiations with Spain for the transfer of the Sovereignty of Hon-
duras ."76

"1837, April 21st. R. 10.
British Consul, San Salvador, to Superintendent,
Asking for information as to any instructions under which the
Superintendent acts in granting lands to the southward of Belize, as it
appears to be contrary to the 3rd article of the treaty with Spain
of 1786."7

"1842, March 31st. R. 21a.
Secretary of State to Governor, Jamaica.
States that as there is no present prospect of the cession of sov-
ereignty over the Settlement by Spain, the Administration must con-
tinue to conform to local usage .. ."78


"1844, October 31st. R. 21c.
Governor, Jamaica, to Superintendent,
Transmitting the Secretary of State's ruling that, 'under the
peculiar circumstances in which the Settlement is placed in regards to
rights of Sovereignty,' it is not expedient to apply therein the provi-

74 Ibid., Vol. II, p. 365.
75 Ibid., Vol. II, p. 367.
76 Ibid., Vol. II, p. 375.
77 Ibid., Vol. II, p. 392.
78 Archives of British Honduras (Burdon, 1935), Vol. III, p. 56.







sions of the Imperial 'Act to remove doubt as to the exercise of power
and jurisdiction by Her Majesty within divers countries and places out
of Her Majesty's Dominions .' "'

"1847, April 20th. R. 28.
William F. Lewis (Attorney General) to the Superintendent.
Gives it as his opinion that Honduras is not a Colony at all,
either by conquest, cession, or occupancy, but a Settlement in the pos-
session and under the protection of Her Majesty's Government,
whereby the Common Law of England has been the basis upon which
all civil contracts have been regulated."80

"1848, November 26th. R. 25.
Superintendent to Governor, Jamaica,
Reporting the sending of three prisoners, charged with the murder
at sea of a native of the Settlement, to Jamaica for trial, there being
no authority in the Settlement for the trial of such offences."81

"1850, July 11th. R. 31.
Superintendent to Governor, Jamaica,
Transmits a memorial signed by the Principal Merchants, Maho-
gany Cutters, etc., and also by the American Consul, requesting an
arrangement with Spain for determinately settling all pending questions
respecting the Sovereignty and territorial rights of Great Britain in
Honduras, with the ultimate view of having this settlement placed
on a footing with the rest of His Majesty's Colonies."82

"1851, March 25th. R. 37.
Secretary of State to Governor, Jamaica,
Informing him that the Law Officers have decided that the Court
of British Honduras had no jurisdiction to try two men convicted of
piracy, and directing that they be pardoned. Suggests that steps be taken
to investigate the possibility of proceeding against them in Jamaica."8s

"1852, October 6th. R. 41.
Governor, Jamaica, to Superintendent.

Apprehends difficulties 'which we are not in a position to ap-

79 Ibid., Vol. III, p. 78.
80 Ibid., Vol. III, p. 92.
81 Ibid., Vol. III, p. 113.
82 Ibid., Vol. III, p. 136.
8 Ibid., Vol. III, p. 143.








preciate or fully comprehend on this side of the Atlantic that stand
in the way of any positive assumption by the British Crown of terri-
torial sovereignty.' "84

"1853, November 15th. R. 48.
Superintendent to Governor, Jamaica.
Points out that so long as the political condition of the Settlement
remains unaltered and the territorial sovereignty of Spain exists, it is
difficult to define to what extent the prerogative and authority of the
British Crown prevail. In fact, the Settlement is little more than a
Protectorate, over which the Crown appoints its principal of-
ficers ."85

"1854, September 16th. R. 48.
Superintendent to Governor, Jamaica.
Submits Memorandum on the boundary question, .

Encroachments have been made on all neighboring States. Sug-
gestion made that those states should be induced to disclaim all terri-
torial ownership comprised in Spanish Treaties, thereby influencing
Spain to relinquish any claim she may possess to sovereignty."86

"1861, July 4th. R. 75.
Secretary of State to Governor, Jamaica.
Expressing sympathy with the proposal to change of the designa-
tions 'Settlement' and 'Superintendent' to 'Colony' and 'Lieutenant
Governor', but with fear that there may be difficulty in thus un-
equivocally expressing the real character of the British Possessions in
the Bay of Honduras. ."7

"1862, June 26th. R. 72.
Lieutenant Governor Seymour to His Excellency G. B. Mathew.
Informing him that on 12th May 1862 he caused Her Majesty's
Letters Patent creating the Colony of British Honduras to be pro-
claimed and immediately took the oath as Lieutenant Governor of
the Colony."88
The conclusions which can fairly be drawn from the
entries we have just examined are self evident. They require

84 Ibid., Vol. III, p. 159.
85 Ibid., Vol. III, p. 173.
8s Ibid., Vol. III, p. 180.
87 Ibid., Vol. III, p. 241.
88 Ibid., Vol. III, p. 247.







no extended comment. There can be little question that neither
the British authorities in the home office, nor the subordinate
officers in Jamaica or the settlement of Belize, considered
Great Britain as the true sovereign with power to exercise
jurisdiction therein until after 1859. In fact, Great Britain
was even loathe to thus unequivocally express the real character
of her tenure in Belize for some time after 1859. In 1862,
however, the settlement was finally declared to be a colony
of Great Britain, with all the implications which flow there-
from. Even those steeped in the deepest tradition of empire
will be compelled to concede that Great Britain was doubtful
of the title she held to the settlement until after 1859. Neither
did she consider her ownership of the same to be valid and
complete.
It would appear, therefore, that the year 1859 is the point
dividing the uncertain British attitude concerning her rights,
from her positive assertion about ownership and sovereignty
over British Honduras. We are, thus, brought to a considera-
tion of the Treaty of 1859, between Great Britain and Guate-
mala, which to all intents and purposes changed the entire his-
tory of the question of Belize.










CHAPTER 10


THE TREATY OF 1859

No document in the entire series of papers we have thus
far examined is as important as the Treaty of 1859 between
Great Britain and Guatemala. This document profoundly af-
fects relations between the contracting powers with reference
to the territory of Belize or British Honduras. It also bears
incontestably upon the questions of sovereignty, right and
ownership. It constitutes, therefore, a vital part of the dispute
between the parties. Because of this, a break with the pro-
cedure so far adopted is advisable. While previous chapters
have contained the reproduction of only those portions of docu-
ments relative to the questions under consideration, the intrinsic
momentousness of this international contract, as well as the
effects flowing therefrom, warrant citing it in its entirety. The
text of the treaty follows:
"Whereas the boundary between Her Britannic Majesty's settlement
and possessions in the Bay of Honduras, and the territories of the
Republic of Guatemala, has not yet ben ascertained and marked out;
Her Majesty the Queen of the United Kingdom of Great Britain and
Ireland, and the Republic of Guatemala, being desirous, with a view
to improve and perpetuate the friendly relations which happily subsist
between the two countries, to define the boundary aforesaid, have
resolved to conclude a Convention for that purpose, and have named
as their Plenipotentiaries, that is to say:
Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, Charles Lennox Wyke, Esquire, Her Britannic Majesty's
Charge d'Affaires to the Republic of Guatemala;
And his Excellency the President of the Republic of Guatemala,
Don Pedro de Aycinena, Councillor of State, and Minister for Foreign
Affairs;
Who, after having communicated to each other their respective
full powers, found in good and due form, have agreed upon and con-
cluded the following Articles:
Art. I. It is agreed between Her Britannic Majesty and the Re-
public of Guatemala, that the boundary between the Republic and the







British Settlement and Possessions in the Bay of Honduras, as they
existed previous to and on the 1st day of January, 1850, and have
continued to exist up to the present time, was and is as follows:
Beginning at the mouth of the River Sarstoon in the Bay of
Honduras, and proceeding up the mid-channel thereof to Gracias a
Dios Falls; then turning to the right and continuing by a line drawn
direct from Gracias a Dios Falls to Garbutt's Falls on the River Belize,
and from Garbutt's Falls due north until it strikes the Mexican
frontier.
It is agreed and declared between the High Contracting Parties
that all the territory to the north and east of the line of boundary
above described, belongs to Her Britannic Majesty; and that all the
territory to the south and west of the same belongs to the Republic
of Guatemala.
II. Her Britannic Majesty and the Republic of Guatemala shall,
within 12 months after the exchange of the ratifications of the present
Convention, appoint each a Commissioner for the purpose of designat-
ing and marking out the boundary described in the preceding Article.
Such Commissioners shall ascertain the latitude and longitude of
Gracias a Dios Falls and of Garbutt's Falls, and shall cause the line
of boundary between Garbutt's Falls and the Mexican territory to be
opened and marked where necessary, as a protection against future
trespass.
III. The Commissioners mentioned in the preceding Article shall
meet at such place or places as shall be hereafter fixed, at the earliest
convenient period after they shall have been respectively named; and
shall, before proceeding to any business, make and subscribe a solemn
declaration that they will impartially and carefully examine and decide,
to the best of their judgment, and according to justice and equity,
without fear, favour, or affection to their own country, upon all the
matters referred to them for their decision; and such declaration shall
be entered on the record of their proceedings.
The Commissioners shall then, and before proceeding to any other
business, name some third person to act as arbitrator or umpire in any
case or cases in which they may themselves differ in opinion. If they
should not be able to agree upon the choice of such a third person,
they shall each name a person; and in each and every case in which
the Commissioners may differ in opinion as to the decision which they
ought to give, it shall be determined by lot which of the two persons
so named shall be the arbitrator or umpire in that particular case. The
person or persons so to be chosen shall, before proceeding to act, make,
and subscribe a solemn declaration, in a form similar to that which
shall already have been made and subscribed by the Commissioners,
which declaration shall also be entered on the record of the proceed-
ings. In the event of the death, absence, or incapacity of either of
such Commissioners, or of either of such arbitrators or umpires, or of
his omitting, or declining, or ceasing to act, another person shall be







named, in the same manner, to act in his place or stead, and shall
make and subscribe such declaration as aforesaid.
Her Britannic Majesty and the Republic of Guatemala shall
engage to consider the decision of the two Commissioners conjointly,
or of the arbitrator or umpire, as the case may be, as final and con-
clusive on the matter to be respectively referred to their decision, and
forthwith to give full effect to the same.
IV. The Commissioners hereinbefore mentioned shall make to
each of the respective Governments a joint report or declaration, under
their hands and seals, accompanied with a map or maps in quadruplicate
(two for each Government), certified by them to be true maps of the
boundary defined in the present Treaty, and traversed and examined
by them.
V. The Commissioners and the arbitrator or umpire shall keep
accurate records and correct minutes or notes of all their proceedings,
with the dates thereof, and shall appoint and employ such surveyors,
clerk or clerks, or other persons, as they shall find necessary to assist
them in the transaction of the business which may come before them.
The salaries of the Commissioners shall be paid by their respective
Governments. The contingent expenses of the Commission, including
the salary of the arbitrator or umpire, and of the surveyors and clerks,
shall be defrayed in equal moieties by the two Governments.
VI. It is further agreed that the channels in the water-line of
boundary described in Article I of the present Convention, shall be
equally free and open to the vessels and boats of both Parties; and
that any islands which may be found therein shall belong to that party
on whose side of the main navigable channel they are situated.
VII. With the object of practically carrying out the views set
forth in the preamble of the present Convention, for improving and
perpetuating the friendly relations which at present so happily exist
between the two High Contracting Parties, they mutually agree con-
jointly to use their best efforts, by taking adequate means for establish-
ing the easiest communication (either by means of a cart-road, or
employing the rivers, or both united, according to the opinion of the
surveying engineers), between the fittest place on the Atlantic coast,
near the settlement of Belize, and the capital of Guatemala; whereby
the commerce of England on the one hand, and the material prosperity
of the Republic on the other, cannot fail to be sensibly increased, at
the same time that the limits of the two countries being now clearly
defined, all further encroachments by either party on the territory of
the other will be effectually checked and prevented for the future.
VIII. The present Convention shall be ratified, and the ratifica-
tions shall be exchanged at London or Guatemala as soon as possible
within the space of 6 months.
In witness whereof, the respective Plenipotentiaries have signed
the-same, and have affixed thereto the seals of their arms.






Done at Guatemala, the 30th day of April, in the year 1859.
(L.S.) CHARLES LENNOX WYKE.
(L.S.) P. DE AYCINENA."89
Having examined the text of the much disputed conven-
tion between Guatemala and Great Britain, our task at this
point is to analyze the document proper without reference to
collateral or extraneous subject matter. The claim has been
made that the treaty should be considered in the light of the
historical events which preceded it.90 Guatemala also con-
tends that if the treaty is examined in perspective it does not
mean what it actually says.91 This line of attack will be given
full consideration in the chapter entitled, The Purport of the
Preamble and of Article I. For the present, we shall confine
ourselves to the text of the treaty as agreed upon between
the parties thereto.
Before entering into a study of the contract, we must
note that it was the subject of grave controversy at the time
it was negotiated. Several of the Guatemalan Counsellors of
State seriously questioned the constitutional power of the
Executive Department to enter into such an agreement. As was
stated at the time, the President had power to conclude only
treaties of alliance, friendship and commerce. This power, it
was declared, did not extend to treaties defining national
boundaries.92
Whatever may have been the defects connected with the
boundary convention of 1859, ab initio, they were remedied
when the convention was subsequently approved by the legis-
lature, within whose province the subject matter of the treaty
had been stated to belong.93 GAlvez puts the matter more
strongly. He refers to the legal defects accompanying the sign-
ing and ratification of the agreement. He then concedes that
they were cured by the prolonged and permanent recognition
89 49 British & Foreign State Papers 7. See also Col. de los Trats. de Guate-
mala (Rodriguez-Cerna, 1944), Vol. 3, p. 151.
90 El Caso de Belice (Gilvez, 1941), pp. 343, 344.
91 White Book, pp. 479-481.
92 El Caso de Belice (Gilvez, 1941), p. 295.
9s Britain and Her Treaties on Belize (Mendoza, 1947), p. 133.







of the treaty and, above all, by the sovereign will of the peo-
ple of Guatemala expressed through subsequent Constituent
Assemblies." We may, in consequence, pass on to a considera-
tion of the treaty itself, secure in the knowledge that it was a
valid, binding and complete contract between the signatory
powers.
The agreement is, in form at least, a boundary conven-
tion. This is apparent in the preamble wherein it is clearly
stated that the "boundary between Her Britannic Majesty's set-
tlement and possessions in the Bay of Honduras, and the ter-
ritories of the Republic of Guatemala, has not yet been ascer-
tained and marked out." It is also evident in a subsequent
clause of the preamble which indicates the desire of both
Guatemala and Great Britain to "define the boundary afore-
said." The preamble, however, is not the only portion of
the treaty indicating the agreement to be one defining national
frontiers. Article I of the Convention is most important in
this regard. It is the Article which actually defines the
"boundary between the Republic and the British Settlement
and' Possessions in the Bay of Honduras." It lays down the
line dividing the two territories as running along the Sarstoon
River, from its mouth, to Gracias a Dios Falls; from Gracias
a Dios Falls to Garbutt's Falls, and from Garbutt's Falls to
the Mexican frontier.
The rest of the treaty will tend to show that the boundary
was the subject matter which was being negotiated between
the parties. Article n provides for the appointment of com-
missioners to designate and mark out the boundary. Article in
deals with the procedure to be followed by the commissioners
in designating and marking out the boundary. Article Iv de-
fines the duties of the commissioners to submit a joint report
accompanied by maps, certified by them to be true maps of
the boundary. Article vi deals with islands on either side of
the main navigable channel of the water-line boundary. Article
vii recites that the limits of the two countries being now clearly

94 El Caso de Belice (1941), p. 297.






defined, all further encroachments by either party, on the ter-
ritory of the other, will be effectively checked and prevented
for the future. It is no exaggeration to conclude, if language
be any criterion, that the only topic with which the signatories
to this convention were in fact concerned was the boundary
between Guatemala and Belize or British Honduras.
Certain portions of the Treaty require additional comment
because of the special factors connected with the terminology
therein employed. Thus, we are compelled to observe the use
of the word "possessions," to describe the British holdings.
This word is inserted in the Treaty without restriction or limita-
tion of any sort. Never, in the entire series of documents we
have thus far examined, do we find this word so applied. Only
in the Act of Parliament of 1817 did the British describe their
holding as a possession. In that Act, the general nature of
the term was bounded by the qualification that the possession
was "for certain purposes."'
In this connection, we may also add that the Government
of the United States refrained from describing the British
holding as a "possession." With reference to this matter, the
United States displayed extreme caution in dealing with Great
Britain. After the signing of the Clayton Bulwer Pact between
them in 1850, Secretary of State Clayton, in correspondence
centering on the Pact, referred to the territory of Belize as a
"settlement."96 What is more, the unratified Dallas Clarendon
Pact, between Great Britain and the United States, also re-
ferred to the British holding as a "settlement."97 Thus, Guate-
mala discarded whatever prudence had previously been exer-
cised in describing the nature of the holding. She did so by
using the word "possessions," in its general and unrestricted
sense, as applicable to the British territory.
At any rate, there is no need to dwell at length upon in-
ferences flowing from the use of words employed in the draft

95 See Chapter 8.
96 Dipl. Corr. of the U.S. (Manning, 1936), Vol. VII, p. 63.
97 47 British and Foreign State Papers 661.


64







of the pact. The best evidence at hand as to its significance is
supplied by Spanish-American writers themselves. There is
startling unanimity among them to the effect that the Treaty
constitutes a recognition by Guatemala of British sovereignty
over Belize.98 Nor can there be any question that the British
shared this opinion. To illustrate the point, we need only con-
trast the uncertain British attitude, as to the validity of their
title, before 1859" with the positive expressions of J. G.
Austin, Lt. Governor of British Honduras, on February 28,
1867. The occasion which allowed him to make these declara-
tions grew out of a demand by one of the Indian chiefs in
Belize that British settlers pay rent for the privilege of work-
ing unmolested on the land. In the course of his memorandum
on the question Austin stated:
"... we entered into a Treaty with that State [Guatemala] by which
they acknowledged our right to all lands within a line from Gracias a
Dios on the Sarstoon to Garbutt falls on the Belize River and from
thence to the 18th parallel of latitude ...
We will not suffer any persons whatsoever to dispute British
Authority within our Territories as so laid down, and therefore so long
as Ascencion Ek and the Indians dispute our rights and dare to claim
rents or to molest British subjects when carrying on their lawful
occupation we must consider them as enemies whose continuance in
our Territory is impossible."'00
Whatever else may be written about the Treaty at hand, it is
interesting to note that both parties to the dispute share at
least one conclusion in common. It is that the Treaty of 1859

98 Belice, Patrimonio de Guatemala (Pasos, 1944), p. 57; El Caso de Belice
(Gilvez, 1941), p. 299; Nuestro Belice (Vela, 1939), p. 129; Cont. del Libro
Blanco (Anderson, July, 1939), I, p. 23; Britain and Her Treaties on Belize
(Mendoza, 1947), p. 84; Solidaridad de la Sociedad de Geografia e Historia
de Guatemala con el Gobierno de la Repfiblica en la Controversia sostenida
con la Gran Bretafia respect de Belice (Guatemala, 1939), p. 16; Belice Per-
tenece a M6xico o a Guatemala (Rev. Mex. de Geografia, Julio-Septiembre 1940,
Tomo I, No. I, Escalona), p. 38; Cont. of the White Book (Quir6s, March
1941), II, p. 80; Cont. del Libro Blanco (Harrison, May, 1940), V, p. 193;
Belize Belongs to Guatemala (Ministerio de Relaciones Exteriores, Guatemala,
1947), p. 33; Enc. Universal Ilustrada (Bilbao etc., 1925), Vol. 28, p. 243.
99 See Chapter 9.
100 Archives of British Honduras (Burdon, 1935), Vol. III, p. 282.






is Great Britain's title deed to the property of Belize or British
Honduras.
This chapter would not be complete without a few obser-
vations about the nature of Article vII. By it, the contracting
parties mutually agreed conjointly to use their best efforts to
establish a communication between the fittest place on the
Atlantic coast, near the settlement of Belize, and the capital
of Guatemala. It would be exceedingly difficult to find a
better example of vague and indefinite language.
The obligation, for whatever it is worth, is not unilateral.
It is a bi-lateral obligation and falls squarely upon both parties
to the agreement. They are not called upon to perform a
specific act. They are, on the contrary, merely required to use
their best efforts to achieve or accomplish a given result. It is
not difficult to drive home to the reader the amorphous char-
acter of the duty incurred. Let him imagine himself a presid-
ing justice in this dispute. Let him further imagine that he is
called on to decide whether Great Britain, conjointly with
Guatemala, used her best efforts to establish the road or line
of communication. He will then be confronted with the stag-
gering task of establishing judicially what constitutes a conjoint
use of best efforts by the two nations.
The clause in Article vn, above considered, seems bereft
of legal or logical mooring. This is not, however, the only
difficulty presented. That portion of Article vii which states
that the line of road or communication is to be between the
capital of Guatemala and the fittest place on the Atlantic coast
near the settlement of Belize also possesses peculiarly vagrant
qualities. In point of fact, it leaves the matter in a complete
state of geographical drift. What was the fittest place on the
Atlantic coast? Did the parties intend the line of communica-
tion to pass through Guatemalan territory only? Did they
mean it to cross into the British zone from the territory of
Guatemala? By the "settlement of Belize" did they under-
stand it to be the site of the original settlement which is today
the principal port of the British Colony, or did they mean


66








any portion of the territory lying on the British side of the
boundary they had defined in Article I of the Treaty? These
queries are not here raised merely for the purpose of creating
contention. The questions made their presence manifest in
negotiations between Guatemala and Great Britain after the
treaty was signed.
On June 30, 1859, Lord Russell, Her Majesty's Minister
for Foreign Affairs, sent a note to William Hall, British
Consul in Guatemala. In the course of this letter, he makes
mention of the fact that Great Britain and Guatemala engaged
to cooperate for the establishment of a line of communication
between the capital of the Republic and the coast of the
Atlantic, "at or near Belice."'01 We cannot help but recall
the wording of the text of the treaty which states that the sea
coast terminus of the road was to be "near the settlement of
Belize." In his note Lord Russell omitted the word "settle-
ment." His use of the words "at or near Belice" indicates that
he may have been thinking of the port of Belize proper.
Along the same lines is a note of April 15, 1860, sent by
J. de Francisco Martin, Guatemalan Minister to Great Britain,
addressed to Pedro de Aycinena, Guatemalan Minister for
Foreign Affairs. In it he divulges the British understanding
of their obligation as disclosed to him by the British Subsecre-
tary for Foreign Affairs. According to this understanding, the
British were to make all expenditures incurred in the territory
of Belize and furnish engineers and sappers to work in the
territory of Guatemala.'02 It would appear, thus, that the road
from the Guatemalan capital to the coast was intended to
traverse British as well as Guatemalan territory. It is also pos-
sible to draw a similar inference from a note of November
13, 1934, addressed to the Guatemalan Minister for Foreign
Affairs, by J. H. S. Birch, British Minister to Guatemala. The
note contains a proposal that the Government of British Hon-
duras construct a road from Belize to the frontier of Peten

101 White Book, p. 127.
102 White Book, p. 147.

67






(adjoining British Honduras), and that the road be continued
from that point on the Guatemalan side by the Government
of Guatemala.103
In contrast to these indications, that the road would cross
the territories of both states, is another note of Lord Russell,
dated April 7, 1860, sent to William Hall, British Consul in
Guatemala. This note is contained in a memorandum of Octo-
ber 26, 1867, presented to Mr. Corbett, the new British Min-
ister to Guatemala, by Aycinena, Guatemalan Minister for
Foreign Affairs. The memorandum quotes Lord Russell's note
as stating the belief that no part of the road will pass through
British territory.104
This last note of Lord Russell seems to be at odds with
his previous note of June 30, 1859, in which he states that the
line of road was to run between the Capital of Guatemala and
the coast of the Atlantic "at or near Belice." Nevertheless,
the proposition contained in Lord Russell's note of later date,
to the effect that no portion of the road would pass through
British territory, finds support in an exchange of letters be-
tween William Hall, British Consul in Guatemala, and the
Guatemalan Foreign Minister, Aycinena. The letters are dated
June 23, 1860, and July 2, 1860. They reveal a change of plan
to shift the Atlantic terminus of the road from Santo Tomis
to Izabal,105 both of which terminal points, it should be noted,
lie in Guatemalan territory.
In summation, if there was anything definite about the
projected road alluded to in Article vii it was the belief ex-
pressed by the parties that it would sensibily increase both
the commerce of England and the material prosperity of the
Republic. Only a combination of superb diplomatic skill, on
the one hand, and unbounded artlessness, on the other, could
have produced an agreement couched in the language employed
in this Article. The reader may judge for himself on which of
the two sides of the contractual board these qualities reposed.
103 White Book, p. 415.
104 White Book, p. 308.
105 White Book, pp. 158, 159.





GUATEMALA CITES SOME LAW

Before considering the case on its merits, we must take
note of some principles of international law referred to by
Guatemala in the final pages of her White Book. The legal
question which seems to attract the greatest interest of the
Guatemalans, taken from a conference in the course of the
Academy of International Law at the Hague, during the year
1918, by Arnold D. McNair, "The Termination and Dissolu-
tion of Treaties," is:
. under what conditions and consequent to violations of what
character does the other party have the right to revoke the treaty and
refuse to comply with the obligations which pertain to it?"1o0
In analyzing the problem McNair considers three Ameri-
can decisions. The first is Ware vs. Hylton107 in 1796 in which
Justice Iredell stated:
"It is a part of the law of nations, that if a treaty be violated by one
party, it is at the option of the other party, if innocent, to declare,
in consequence of the breach, that the treaty is void. If Congress,
therefore (who, I conceive, alone have such authority under our gov-
ernment), shall make such a declaration, I shall deem it my duty
to regard the treaty as void, But the same law of nations tells me,
that until that declaration is made, I must regard it (in the language
of the law) valid and obligatory."
The second is in re Thomas108 in which the court declared:
"Where a treaty is violated by one of the contracting parties, it rests
alone with the injured party to pronounce it broken, the treaty being,
in such case, not absolutely void, but voidable, at the election of the
injured party, who may waive or remit the infraction committed, or
may demand a just satisfaction, the treaty remaining obligatory if he
chooses not to come to a rupture. 1 Kent's Com. 174."
1to White Book, p. 482.
107 Moore, Digest of Int. Law (1906), Vol. V, Par. 770, p. 320 (3 Dallas,
199, 261).
108 12 Blatch. 370. Cited in Terlinden v. Ames, 184 U.S. 270.

69


CHAPTER 11






The third is the case of Hooper, Adm'r, vs. United
States109 in 1887 where the court, in discussing a treaty, said:
"As between the nations it is in its nature a contract, and if the con-
sideration fail, for example, or if its important provisions be broken
by one party, the other may, at its option, declare it terminated."
In further considering the answer to the question raised,
McNair also cites the case of Charlton vs. Kelly,110 in which the
court, on the question of abrogating a treaty in consequence
of its violation by the other party, stated:
"If the United States elected not to declare its abrogation, or come to
a rupture, the treaty would remain in force. It was only voidable, not
void; and if the United States should prefer, it might waive any
breach which in its judgment had occurred and conform to its own
obligation as if there had been no such breach. 1 Kent's Comm.,
p. 175."
The essential doctrine developed by the above citations
is simply that, in treaty violations, the injured party may elect
to terminate the treaty, or may waive the violations and hold
the treaty to remain in force.
Having indicated the primary principle regarding the
rights accruing to an injured party when a treaty is violated,
McNair enlarges the question. He considers the two types of
treaty clauses against which an infraction may be committed,
and the effects flowing from such a breach in either case. In
this connection we read from Wildman:"'
"A treaty is an entire contract. All its articles are dependent and have
the force of conditions, so that the violation of any one of them is a
violation of the whole treaty and renders it voidable at the option
of the party injured."
McNair then refers to an opposing view from Hall:112
"There can be no question that the breach of a stipulation which is
material to the main object, or if there are several, to one of the main
objects, liberates the party other than that committing the breach from
the obligations of the contract; but it would be seldom that the infrac-

109 Scott, Cases on Int. Law (1906), p. 433 (22 Ct. of Claims, 408, 416).
110 229 U.S. 447.
111 Institutes of Int. Law (1850), Vol. I, p. 110.
112 Int. Law (1884), p. 323.








tion of an article which is either disconnected from the main object,
or is unimportant, whether originally or by change of circumstances,
with respect to it, could in fairness absolve the other party from per-
formance of his share of the rest of the agreement, though if he had
suffered any appreciable harm through the breach he would have a
right to exact reparation and an end might be put to the treaty as
respects the subject matter of the broken stipulation."
The existence of opposing schools of thought on the ques-
tion is then sharply brought to the reader by recourse to Op-
penheim,"13 who states:
"Violation of a treaty by one of the contracting states does not ipso
fact cancel the treaty; but it is within the discretion of the other party
to cancel on this ground. There is indeed no unanimity among writers
on International Law in regard to this point, since a minority makes
a distinction between essential and non-essential stipulations of the
treaty, and maintain that only a violation of essential stipulations
creates a right for the other party to cancel the treaty. But the majority
of writers rightly oppose this distinction, maintaining that it is not
always possible to distinguish essential from non-essential stipulations
and that it is for the faithful party to consider for itself whether
violation of a treaty, even in its least essential parts, justifies its
cancellation."
McNair terminates his discussion of the question by con-
sidering the opinion of Hyde:114
"It may be futile to enunciate rules pointing decisively to the circum-
stances when abrogation by one party is to be excused. It is to be
acknowledged, however, that failure of a contracting state to observe
a material stipulation of its agreement is deemed to justify another
party in taking such a step."
McNair indicates finally that he is in accord with the
opinions of Hall and Hyde, hereinabove noted.15








113 Int. Law (1928), 4th Ed., Vol. 1, par. 547, p. 756.
114 Int. Law (1945), 2nd Rev. Ed., Vol. II, par. 546, p. 1541.
115 White Book, p. 488.






ARGUMENT


CHAPTER 12

THE PURPORT OF THE PREAMBLE
AND OF ARTICLE I

Having reviewed all of the background material neces-
sary to a general understanding of the case, we are now in a
position to specifically consider the arguments raised by
Guatemala against Great Britain. The first is perhaps the
most important.
Guatemala claims that by the Treaty of 1859 she
ceded territory to Great Britain.
This contention is repeatedly made throughout the course
of the White Book. A memorandum from the Guatemalan
Chancellory refers to the "abandonment of certain rights."116
The agreement embodied in the Treaty is called a territorial
"alienation" and "transfer.""7 It is also referred to as a ces-
sion of territory.118 A letter from Aycinena, Guatemalan Min-
ister for Foreign Affairs, to Charles Lennox Wyke, states that
Guatemala relinquished rights which unquestionably belonged
to her."1 Another letter of June 27, 1933, from the Guate-
malan Minister for Foreign Affairs to the British Charge d'Af-
faires ad interim, also declares that Guatemala relinquished a
considerable portion of territory formerly considered her
own.1" Finally, the Convention of 1859 is described as a ces-
sion of zones.121
The word cession has a clear and universally recognized
meaning. There is no need to cite authority for the purpose
I16 White Book, p. 176.
117 White Book, p. 211.
118 White Book, p. 218.
119 White Book, p. 252.
120 White Book, p. 395.
121 White Book, p. 480.







of demonstrating that it denotes a yielding or surrender of
property or rights by one party to another. In this regard, it
is important that the applicable portion of the Preamble as
well as Article I of the Treaty of 1859, between Guatemala
and Great Britain, be carefully read.
The relevant portion of the Preamble states:
"Whereas the boundary between Her Britannic Majesty's settlement
and possessions in the Bay of Honduras, and the territories of the
Republic of Guatemala, has not yet been ascertained and marked
out; ."122
Article I declares:
"It is agreed between Her Britannic Majesty and the Republic of Gua-
temala, that the boundary between the Republic and the British Settle-
ment and Possessions in the Bay of Honduras, as they existed previous
to and on the 1st day of January, 1850, and have continued to exist
up to the present time, was and is as follows:
Beginning at the mouth of the River Sarstoon in the Bay of
Honduras, and proceeding up the mid-channel thereof to Gracias .
Dios Falls; then turning to the right and continuing by a line drawn
direct from Gracias & Dios Falls to Garbutt's Falls on the River Belize,
and from Garbutt's Falls due north until it strikes the Mexican
frontier."123
The text we have cited denotes that the agreement is
solely concerned with boundaries. Mendoza tells us that a
boundary convention involves the demarcation of a frontier,
and that this implies the separation of neighboring jurisdic-
tions.24 Anderson states that a boundary convention presup-
poses the existence of two adjacent sovereignties."5 As a
result, when she agreed to those portions of the treaty which
we have just examined, Guatemala recognized British jurisdic-
tion to the north and east of the line of boundary established.
In Anderson's language, she admitted to the existence of a
sovereign tract of British land adjacent to her own sovereign
territory. Therefore, by signing this Convention, Guatemala

122 49 British and Foreign State Papers 7. See also Col. de los Trats. de
Guatemala (Rodriguez-Cema, 1944), Vol. 3, p. 151.
123 Ibid.
124 Britain and Her Treaties on Belize (1947), p. 154.
125 Cont. del Libro Blanco (1939), I, p. 22.






acknowledged the existence of a state of facts. She cannot, in
consequence, be said to have legally made a cession, granted
or conveyed anything belonging to her in the first instance.
The conclusion we have drawn is also supported by the
language employed in the Preamble and in Article I to describe
the British holdings. In both of these clauses they are referred
to as "possessions." Note must be taken of the fact that the
word "possessions" is therein employed in its general and
unqualified meaning. No limitations of any sort are appended
to it. Used in this sense, the word indicates the having and
holding of property in one's power or command. It is synon-
ymous with ownership.
Keasbey displayed complete understanding of the con-
sequences which flowed from the use of this word, in its
general sense, as employed in the Treaty of 1859. In the
course of his analysis of the problems which arose between
Great Britain and the United States, relative to an inter-
oceanic canal through the Central-American isthmus, he said:
". It must be noted, too, that this latest convention [the Treaty
of 1859] speaks of 'the British settlement and possessions in the Bay
of Honduras'; whereas, in his reservations to the Clayton-Bulwer
treaty, the English minister had only mentioned 'Her Majesty's settle-
ment at Honduras.' There was foresight in this addition of a word, as
it subsequently proved to the detriment of our own diplomatic case."126
There must be some awareness among Spanish-American
authors of the difficulties posed by the presence of the word
"possessions" in the text of the agreement, because it is not
the subject of extended comment on their part. In fact, Gabriel
Pasos states that the Convention of 1859 clearly expresses the
intention of the contracting parties to 'fix a dividing line be-
tween the Republic and the settlement.'*12
He thus resolves the problem by completely omitting the word
"possessions" from his analysis.
To state the matter succinctly, the boundary described lies
between Guatemala and Her Majesty's "possessions" or that
128 The Nicaragua Canal and the Monroe Doctrine (1896), p. 259.
12T Belice, Patrimonio de Guatemala (1944), Chapter XX.






which Her Majesty has, commands, controls and owns. How
can Guatemala be said to cede, surrender, yield or give up to
Her Majesty that which has already been conceded to belong
to the British Crown? The contradiction is too obvious to
require further comment.
We have thus far confined ourselves to interpreting the
text of the treaty agreed to between Guatemala and Great
Britain. We have not as yet considered the principal attack
directed against the treaty based upon the historical antecedents
of the case. Stated in its simplest terms, the argument is that
prior to 1859 the sovereignty of Belize did not reside in Great
Britain. After 1859 it did. Therefore, regardless of the word-
ing of the agreement, the Treaty of 1859 was ,in effect, a ces-
sion of Guatemalan territory to Great Britain.
The documents involved in the dispute, from the Godol-
phin Treaty of 1670 through the Archives of British Honduras
to 1859, have already been examined. They establish one fact
clearly. Prior to 1859 Great Britain did not in any manner or
form possess or hold sovereignty to the tract of land called
Belize or British Honduras. The Treaty of 1859, however,
operated to recognize British sovereignty over the land
described in Article I. An impartial and objective observer,
not bound by the considerations involved in a particular con-
test, could, with some propriety, take a long range view of the
matter. He might, as a result, conclude that Great Britain
acquired what she did not previously possess, and that such
an acquisition constituted a cession of territory. Unfortunately,
the question posed is not whether a third party may draw this
conclusion, but whether Guatemala herself can assert such a
claim. Based upon the analysis which follows, answer must
be made in the negative.
A treaty is the sovereign act of the supreme authority
within the state. It is the manifestation of the collective na-
tional will in relation to another sovereign or supreme author-
ity. Guatemala succeeded to the rights exercised by Spain
when she asserted and maintained her independent existence






as a state. Based on this principle, she was, up to the signing
and ratification of the Treaty of 1859, in a position to demon-
strate her right of sovereignty over the entire territory of
Belize. No great effort in this direction would have been
entailed. Nevertheless, by affixing her signature to the Treaty
of 1859, Guatemala unreservedly acknowledged British sov-
ereignty over the territory in question. This agreed stipulation
as to the fact of British dominion not only antedated the
Treaty proper, but was conceded as being in existence even
prior to January 1, 1850. Thus, by one stroke of the pen,
she wiped out whatever direct or derivative rights and claims
she had, or may have had, based upon the existence of authen-
tic documents bearing dates prior to 1859.
In her attempt to repudiate the effect of her act of signa-
ture to the treaty, Guatemala places herself in the anomalous
position of disclaiming a situation which she herself created
by a sovereign act of her collective national will. In asserting
that territory was ceded by the treaty, Guatemala denies her
own written acknowledgement of British ownership. Both the
Preamble and Article I state that Great Britain had "posses-
sions" in the Bay of Honduras. If these statements were his-
torically false,"8 then Guatemala was a party to the fraud. If
Article I was a lie,129 then Guatemala compounded the false-
hood.
The opinion here expressed, that Guatemala is precluded
from challenging a valid and binding stipulation of fact made
by her when she conceded British sovereignty between the
Mexican frontier to the north and the Sarstoon river to the
south, finds support in an analysis of the question made by
the Brazilian jurist, Roberto Piragibe da Fonseca. In referring
to the Convention he states:
'. .. the juridical validity of the instrument which geographically
divided the British settlement from the Central-American state the

128 Britain and Her Treaties on Belize (Mendoza, 1947), p. 134.
129 Belice (Asturias, 1941), 2nd Ed., p. 118.







Pact of 1859 is not, at least in what it says with reference to the
boundary, open for discussion between the contending parties.'l30
It is also reflected in the intemperate language employed by
Dr. Asturias who remarks that 'Great Britain drugged Don
Pedro de Aycinena to make him sign the Treaty of 1859 with
the greatest secrecy and dispatch.'31 Certainly, Dr. Asturias
does not intend this statement to be taken literally. Its violent
nature, nevertheless, tends to indicate a realization of the
dilemma in which Guatemala placed herself when she agreed
to the language of the treaty.
The Guatemalan thesis, that the Treaty of 1859 involved
a territorial cession, is untenable. She cannot attribute this
difficulty to third parties or to a fortuitous combination of
circumstances. She must assume full responsibility for the
situation created by the Pact. Guatemala should have realized
the value and the meaning of the words which went into the
draft of the treaty. The language therein employed interposes
a formidable barrier to the establishment of her claim.
On October 1st, 1859, Beverly L. Clarke, United States
Minister Resident to Guatemala and Honduras, addressed
a note of protest against the Treaty of 1859 to Pedro de
Aycinena, the Guatemalan Foreign Minister. Perhaps the most
accurate evaluation of the difficulty now facing Guatemala
was provided by Clarke's note when it referred to the treaty
as a voluntary "confession to establish" British "occupancy,"
"possession" and "title."132









130 Cont. del Libro Blanco (Dec. 1941, 2nd series), p. 60.
131 Belice (1941, 2nd Ed.), p. 118.
132 Dipl. Corr. pf the U.S. (Manning, 1934), Vol. IV, p. 776.










CHAPTER 13


THE NATURE OF ARTICLE 7

We are now led to a consideration of Guatemala's sec-
ond claim which, in the course of presenting her case, seems
to be linked with the first that the Treaty of 1859 was a
cession of Guatemalan territory.
Guatemala contends that Article 7 of the Convention of 1859 is
compensatory.
Article 7 provides:
"With the object of practically carrying out the views set forth in the
preamble of the present Convention, for improving and perpetuating
the friendly relations which at present so happily exist between the
two High Contracting Parties, they mutually agree conjointly to use
their best efforts, by taking adequate means for establishing the easiest
communication (either by means of a cart-road, or employing the
rivers, or both united, according to the opinion of the surveying
engineers), between the fittest place on the Atlantic coast, near the
settlement of Belize, and the capital of Guatemala; whereby the com-
merce of England on the one hand, and the material prosperity of the
Republic on the other, cannot fail to be sensibly increased, at the same
time that the limits of the two countries being now nearly defined,
all further encroachments by either party on the territory of the other
will be effectually checked and prevented for the future."13s
It is not exaggerated to state that there was no clear-cut
concept nor a meeting of the minds about the obligations per-
taining to either party under Article 7.
A letter dated May 1, 1860, from the Guatemalan Min-
ister for Foreign Affairs, P. de Aycinena, to the Guatemalan
Minister in London, Juan de Francisco Martin, shows the
British understanding to be that Britain's obligation was
limited to the dispatch of engineers and road directors, and
that other expenses corresponded to the Guatemalan govern-

183 49 British and Foreign State Papers 7. See also Col. de Trats. de Gua-
temala (Rodriguez-Cerna, 1944), Vol. 3, p. 151.






ment.134 The same letter indicates the Guatemalan under-
standing that England should furnish the engineers and road
directors, and also the funds to pay the laborers. Guatemala's
concept of her own obligations was that she was to furnish
materials to be found in the country, and people who were
to receive reasonable wages.
The estimated cost of constructing the highway showed
divergences of opinion so substantial as to be sheer specula-
tion. This is best illustrated by a letter signed C. Lennox
Wyke, dated June 16, 1860, sent to the Guatemalan Minister
for Foreign Affairs, Aycinena.135 In the course of the letter,
Wyke reveals that he and Aycinena had in Guatemala, in
April 1859, estimated the cost of the road to be 80,000,
whereas, Henry Wray, a Captain of Royal Engineers who
had made a survey of the terrain for the British, had written
a report to the British Ministry for Foreign Affairs in which
he estimated the cost of the road to be at least 160,000.
Another letter to the Guatemalan Minister for Foreign
Affairs, Aycinena, signed C. L. Wyke, dated August 16, 1860,
shows an interesting divergence of thought when it is remem-
bered that Wyke was one of the original negotiators of the
Convention of 1859.136 The agreement made in the first
instance, states Wyke, assuming the cost of the road to be
80,000, was that Guatemala should furnish the materials
and laborers, while Great Britain should provide scientific
direction, and pay half of the workmen's wages. Wyke then
calls attention to the difference of opinion which subsequently
developed between Great Britain and Guatemala about the
payment of workmen's wages. Guatemala, said Wyke, be-
lieved that all salaries should be paid by the British, while
she should furnish laborers who would work at government
contract prices which were lower than the usual wage scale.
Disagreement between Great Britain and Guatemala also
existed about the expenses entailed in the employment of
134 White Book, p. 151.
135 White Book, p. 156.
138 White Book, p. 161.






engineers, directors and foremen. A letter by the Guatemalan
Minister, J. de Francisco Martin, to the Minister for Foreign
Affairs of Guatemala, dated December 15, 1860, indicates
the position of the Guatemalan government, that this expense
was to be for the account of Great Britain.137
The state of affairs, in short, is well illustrated by a note
signed George W. Mathew, British Minister to Guatemala,
dated .May 13, 1862, to Pedro de Aycinena, Guatemalan
Minister for Foreign Affairs, wherein it is stated that a serious
difference of opinion may exist between Her Majesty's Gov-
ernment and that of Guatemala respecting the share to be
borne by each in making the projected road to the Atlantic.138
Despite this lack of understanding about the obligations
pertaining to either party under Article 7, Guatemala re-
peatedly states that it is compensatory. This she does in the
opening statement of her case;'39 in a memorandum from the
Guatemalan Chancellory;1" in a letter of July 3, 1862, from
the Guatemalan Foreign Minister, to the British Minister to
Guatemala;.4. in a reply from the Guatemalan Chancellory;142
in a note of May 15, 1867, from the Guatemalan Chancellory
to the Guatemalan Legation;143 in a memorandum dated Octo-
ber 26, 1867, presented by the Guatemalan Chancellory to the
new British Minister to Guatemala;144 in an exposition of the
boundary question since 1859, dated June 30, 1880, from the
Guatemalan Legation to the British Chancellory;145 in a note
from the Guatemalan Ministry for Foreign Affairs to the
British Charge d'Affaires, dated June 27, 1933 ;14 and lastly,
in another note from the Guatemalan Ministry for Foreign
Affairs to the British Envoy Extraordinary and Minister Pleni-
137 White Book, p. 164.
1as White Book, p. 195.
139 White Book, p. 9.
14o White Book, p. 176.
141 White Book, p. 217.
142 White Book, p. 226.
143 White Book, p. 301.
144 White Book, p. 306.
145 White Book, p. 326.
146 White Book, p. 395.







potentiary, dated November 17, 1934.147 The fact, however,
that Guatemala labels this clause compensatory does not make
it so.
It is proper, at this point, that we examine the meaning
of the word compensatory. There is nothing in law basically
at variance with the generally accepted sense of the term. It
is a form of the noun compensation and denotes a weighing
or balancing of accounts. Thus, the application of the attribute
compensatory to describe Article 7 of the Convention of 1859,
connotes or implies a requisite and necessary recompense or
reward for loss or privation.
The Preamble and Article 1 of the Convention of 1859
have already been submitted to scrutiny.148 The conclusions
drawn therefrom show that the treaty did not legally contem-
plate a cession of territory but was, on the contrary, a boundary
convention, or convention of limits. These conclusions bear
directly on the question under consideration. If a cession had
legally taken place, Guatemala might well argue that in return
for ceding portion of her sovereign territory to Great Britain,
Great Britain undertook to construct the disputed road. In
this sense, therefore, and according to an argument which
would still run head on into the wording of Article 7, the
building of the road would be a remuneration or set-off for
the cession of sovereign territory, and would in that sense
be compensation. In other words, Article 7 is, from the
Guatemalan point of view, intimately linked with her claim
that there was a cession of territory to Great Britain. But in
view of the findings made in the preceding chapter and herein-
before indicated, Article 7 must stand alone.
Taken by itself, it fails to show any loss or privation on
the part of Guatemala for which the British were required to
make good, remunerate or provide a set-off, by assuming the
major portion of the burden of constructing a road from the
Atlantic, near Belize, to the capital of Guatemala. The only

147 White Book, p. 419.
148 See Chapter 12.






showing made by Article 7 of the Convention of 1859 is a
mutual agreement by both Guatemala and Great Britain, to
conjointly use their best efforts to establish a cart-road be-
tween the fittest place on the Atlantic coast, near the settle-
ment of Belize, and the capital of Guatemala.
The obligation envisaged by Article 7 of the Convention
of 1859 is not a unilateral obligation resting solely on Great
Britain, but a joint obligation devolving upon both parties to
the contract. It is impossible to conceive by what stretch of
language, or of the imagination, such a type of contractual
obligation can be alleged to call for compensation, or be com-
pensatory. Every claim of Guatemala, in this regard, falls of
its own weight by a simple reading of the disputed clause. We
are obliged to conclude, therefore, that there is nothing com-
pensatory about Article 7. No labels or partisan interpreta-
tions can alter its apparent sense and content. If such an
article is indeed held to be compensatory, then the plain and
obvious wording of both Spanish and English has no signifi-
cance whatever.
Guatemala herself reveals the weakness of the argu-
ment offered when, in the course of presenting her case, she
states:
'The article is vague, without fixed period and without sanctions, and
does not clearly say that it was compensatory; but this is deduced from
its wording and from its antecedents."149
The admission, that Article 7 is not clearly compensatory,
is nevertheless not wholly free or unfettered. It is linked to
the assertion that the compensatory nature of Article 7 can
be deduced from its wording and from its antecedents. As we
have already seen, however, neither the language of the Article
nor the antecedents of the case will support the stress of such
a deduction.150
Pertinent to the foregoing remarks is an analysis by Pedro
Valenzuela related to the claim that Article 7 is compensatory.

149 White Book, p. 109.
150 See Chapter 12.








Valenzuela was a member of the Guatemalan Council of State
at the time that body ratified the Convention of 1859. He
voted with the minority against ratifying the agreement. His
opinion on the issue of whether Article 7 was compensatory
reads in substance as follows:
'Compensation has been discussed in connection with the treaty. What
it amounts to is a mere formula of words. The formula may delude
one momentarily. When scrutinized with care it is observed to have
no value.'151
A reading of this analysis affords a sense of gratification.
It is encouraging to know that the opinion about Article 7, of-
fered here today, was shared in 1859 by a Guatemalan of
Valenzuela's stature.
This chapter would not be complete without mention of
two documents cited by Guatemala in an attempt to show
that Article 7 of the Convention of 1859 is compensatory.
The first is a letter of April 30, 1859, sent by Charles
Lennox Wyke to the Earl of Malmesbury. The extract of this
letter states:
"It became evident that my negotiations must fail, unless I could hit
upon a plan whereby the Government of Guatemala would find some
inducement for agreeing to my terms.
Now, as the commerce of this State with Belize, and the Atlantic
coast generally, has been falling off rapidly of late years, owing to
the communication with the Pacific coast being so much easier from
the existence of a good carriage-road between this city and the port of
San Jose, it struck me that the compensation they claimed might in
some sort be afforded if we aided them in the construction of a prac-
ticable cart-road to the port of Izabal, on the Atlantic coast, whereby
the old commercial relations with Belize would be renewed and both
Contracting Parties mutually benefited, without either appearing to
receive a favour from the other.
As we are rapidly losing the carrying trade of this Republic,
which the American steamers on the Pacific and the Panama Railway
are depriving us of, it becomes, of course, important, if possible, to
turn the course of trade again into its old channels; and when, by so
doing, we could, at the same time, establish the limits of our settlement
of Belize, it appeared to me I should be justified in somewhat ex-
ceeding my instructions if, by so doing, I could bring about so
positive a good.
151 Belice (Asturias, 1941), p. 119. See also White Book, p. 115.







Such being the actual state of the case, I did not hesitate to accept
this responsibility, and, by so doing, I at last succeeded in getting this
Government to accept the Convention word for word, and without a
single alteration, on the condition that an Additional Article should be
added to it, whereby both Contracting Parties agree conjointly to use
their best efforts, by the construction of a cart-road, for re-establish-
ing the ancient communication between this capital and the Atlantic
coast near Belize, whereby the commerce of England will benefit, on
the one hand, and the prosperity of that portion of this Republic be
materially increased on the other.
Thus modified, the Convention was this day signed by Don Pedro
de Aycinena and myself, at the same time that its ratification by this
Government was handed to me by him.
I have herewith the honour to inclose said Convention, and I
trust, in signing it as it stands, that I shall not have incurred your
Lordship's displeasure for having so far exceeded my instructions,
when, by so doing, I consider that I have obtained a double advantage
at the price of, comparatively speaking, a trifling sacrifice.
As I come home by the same packet that brings this despatch, I
shall have the honour of communicating personally to your Lordship
all further details with reference to this matter which it is necessary
that you should be informed of.
CHARLES LENNOX WYKE."152
Guatemala, in a note of April 24, 1940, sent by the
Guatemalan Foreign Minister, Carlos Salazar, to the British
Envoy Extraordinary and Minister Plenipotentiary, John Hur-
leston Leche, declares that Wyke's letter to the Earl of Malmes-
bury establishes that Article 7 is a compensatory clause.'53 It
is, of course, apparent to anyone who reads the cited text
that it does not establish anything of the kind. What it does
say is that Guatemala claimed compensation, which is a vastly
different matter.
Several other conclusions are indicated in Salazar's lengthy
note. From Wyke's statement, that his negotiations must fail
unless he could hit upon a plan whereby the Government of
Guatemala would find some inducement for agreeing to his
terms, Salazar deduces that Wyke had not come to negotiate
a boundary convention or to claim an already existing right,
but that he had come, on the contrary, to obtain a grant in

152 50 British and Foreign State Papers 243.
153 Cont. del Libro Blanco (May, 1940), IV, p. 162.







the nature of a gift from Guatemala.154 From Wyke's use of
the words, "the compensation they claimed might in some sort
be afforded," the conclusion is reached that the British would
compensate Guatemala for ceding territory.155 Finally, the
statement, "without either appearing to receive a favour from
the other," is construed as a direct contradiction of the fact
that the convention was one about boundaries.156
It is not an easy task to evaluate a written document. This
is especially true where disagreement exists and a contest is
imminent over the meaning of its terms. Either of the con-
tracting parties, of course, can indicate and adopt a construc-
tion favorable to its own side of the dispute. This is precisely
what Salazar has done in his note to the British Envoy. We
do not here contend that the Guatemalan Foreign Minister's
conclusions, based solely on the text of Wyke's letter, are
untenable. What we do state is that they are conclusions
most likely to favor Guatemala's side of the case. We must,
nevertheless, bear in mind that conclusions other than the ones
indicated above may also be drawn from Wyke's letter to the
Earl of Malmesbury. They are just as tenable as the ones
drawn by Salazar and tend in the main to favor the position
of Great Britain in the matter.
Let us first examine Wyke's declaration that his negotia-
tions must fail unless he could hit upon a plan whereby the
Government of Guatemala would find some inducement for
agreeing to his terms. It is not inconceivable that the parties
to a boundary convention cannot agree as to the line of
demarcation between their territories. The first may claim the
course of the line as running along land considered by the
second to be within its domain. In such an event, it is not,
strange, nor does it run counter to experience, that some ar-
rangement be arrived at or adjustment made. The first party
might offer some inducement for the purpose of obtaining
agreement, by the second, to what it considers to be the cor-
154 Ibid., p. 163.
155 Ibid., p. 163.
156 Ibid., pp. 163, 164.






rect line of boundary. Moreover, since the boundary is not
ascertained, the mode of negotiation would not imply a ter-
ritorial cession.
This interpretation applies with equal force to Wyke's
statement that the compensation Guatemala claimed might be
in some sort afforded her if the British aided in constructing
a cart-road to the port of Izabal, on the Atlantic coast. Wyke,
we repeat, does not state that the proposed arrangement about
the road was compensatory. He merely says that Guatemala
claimed compensation. To the question about the purpose for
which compensation was claimed, an answer is ready at hand.
Guatemala was not in agreement with Great Britain as to the
course of the boundary. The compensation claimed would be
afforded Guatemala for agreeing to the British definition of the
true dividing line. Again, since the boundary had not as yet been
ascertained, it would not be possible to spell out a cession.
We are now brought to that portion of Wyke's letter in
which he states that both parties would be mutually benefited,
without either appearing to receive a favor from the other.
Article 7 of the Convention of 1859 deals with the construc-
tion of a cart-road from the capital of Guatemala to the
Atlantic coast. It is not, strictly speaking, concerned with
boundaries. It does not, therefore, properly form an integral
or connected part of the text of that agreement. At any rate,
no rule exists to prevent the parties from annexing to a
boundary convention, any sort of agreement or clause on which
they may concur. This is the case with Article 7. It is uncon-
nected with the principal object of the convention. If either
of the parties had received a benefit from the other, the con-
vention might very well have been construed as a cession of
territory. If neither of the two appeared to receive any benefit
from the other, such a construction would not be possible.
In short, Wyke's words, "without either appearing to receive
a favour from the other," may very well be interpreted to
preclude any claim, of whatever nature, that the accord was
anything but a convention of limits.


86







Neither of the parties does in fact receive any benefit
from the other, but both are mutually favored. The benefits
are real. They are not illusory. The commercial advantages,
to Guatemala, of having a road communicating with the coast
are indisputable. On Great Britain's part, it is apparent, from
Wyke's letter, that Great Britain was losing the carrying trade
of the Republic to American steamers on the Pacific and to
the Panama Railway, and that she believed the road would
again turn the course of trade into its old channels.
These are the considerations, drawn from the phraseology
employed, which tend in the main to favor Great Britain's
position in the matter. They are not, we submit, the only valid
ones in the case. They do not exclude others inconsistent with
the conclusions here drawn. We do contend, though, that they
are just as cogent, just as plausible and just as well reasoned
as the conclusions drawn by Salazar from Wyke's letter to the
Earl of Malmesbury.
The second of the two documents, which Guatemala cites
to prove that Article 7 is compensatory, is a question pro-
pounded in Commons on May 16, 1862, by Mr. Seymour
Fitzgerald, Member for Horsham. Reply to the question was
made for the Government by Mr. Layard. The pertinent por-
tions of the interrogation and the answer are as follows:
THE TREATY WITH GUATEMALA. Question.
"MR. SEYMOUR FITZGERALD rose to ask Her Majesty's Govern-
ment, Whether any understanding has been come to with the Govern-
ment of the Republic of Guatemala with reference to the proposed
road to be made from the City of Guatemala to the Atlantic coast? .


In 1859 a treaty was entered into between Her Majesty's Gov-
ernment and that of Guatemala; the object of which was to define
the boundaries of the territories of the republic and of Her Majesty's
dominions in that part of the world. It also contained a stipulation
by which her Majesty's Government agreed to undertake the liability
with the Government of Guatemala of forming a road. In the first
place, he could not conceive a principle more objectionable than that
this country should enter into liabilities for these kind of public
improvements in another country which was quite capable of doing







the work without any such assistance. The treaty, upon being brought
to this country, was at once ratified by the noble Lord at the head
of the Foreign Office. The noble Lord having accepted this respon-
sibility as he (Mr. Fitzgerald) thought somewhat hastily it struck
him that he should like to know something of the extent of the liabil-
ity. He was called on to do his part under the treaty in making the
road, which was 350 miles long. Major Wray, an engineer officer, was
therefore sent out to investigate the matter, and he reported that the
expense of making the road would be about 150,000. It appeared,
also, that the Government of Guatemala was under the impression that
England was to find the money for the road, and they were to find
the statute labour, the result of which would be, that whilst Guate-
mala found the forced labour, the British Government would pay into
its treasury 150,000. But it appeared that while her Majesty's Gov-
ernment was astonished at the magnitude of the work, and the sum
it was to cost, the Government of Guatemala was also dissatisfied,
because they thought that the amount (which they hoped to receive)
was too small; and although it had not, he believed, been officially
communicated to her Majesty's Government, the Government of Gua-
temala estimated the cost of the work at 300,000. Considering the
present position of the finances of this country, the Chancellor of
the Exchequer would probably be astonished to find a liability existing
of which he knew nothing. But according to another report which
had been made, the amount required to make this communication would
be so large as to render it practically impossible to carry it out. Under
these circumstances, he should like to know whether the Government
intended to repudiate or to fulfil this bargain.... On the one hand,
it was improper that obligations of this kind should be lightly in-
curred; and, on the other, it was a great misfortune to have to repudiate
a treaty solemnly entered into. He was aware that our charge d'affaires
at Mexico had been despatched to Guatemala to endeavour to arrange
this matter. He was probably still there with that object. His (Mr.
Fitzgerald's) object in bringing this matter forward was to know
whether the Government would fulfil the contract or repudiate an
engagement under a solemn treaty."157
MR. LAYARD. Answer.

Then, as regarded the question of the hon. Member for Horsham
(Mr. S. Fitzgerald), on the subject of the Guatemala road, he had
complained bitterly of the Government entering into contracts with
foreign countries and incurring the expenditure of large sums of money
without the consent of Parliament The history of the convention

157 Hansard's Parliamentary Debates, 3rd Series (2nd Vol. of the Session,
London, 1862), Vol. 166, p. 1825.







with Guatemala was this:-Sir Charles Wyke was sent out from this
country to negotiate a treaty with the republic of Guatemala, some im-
portant questions of boundary then remaining unsettled, and more
particularly of the boundary between the Republic of Guatemala and
the British possessions in Central America. Those questions were
intimately connected with matters bearing upon the Clayton-Bulwer
Treaty, entered into between this country and the United States. Sir
Charles Wyke took out the draught of a treaty which he was instructed
to negotiate with the Government of Guatemala, but considerable op-
position was offered on the part of that Government to the terms he
proposed for the settlement of the boundary question. In return for cer-
tain concessions, they asked for an equivalent; that equivalent was for
some time discussed, and at length the Guatemala Government de-
manded, as the equivalent which they desired, the construction by the
British Government, at an expense to be shared between the two Gov-
ernments, of a road from the city of Guatemala to Belize, connecting
the Pacific with the Atlantic. It was very important to the Govern-
ment of Guatemala to have a road by which to keep up their com-
mercial intercourse with the Atlantic; and they stated, that if that con-
cession were made, they would accept the terms that had been offered
them. Sir Charles Wyke felt it to be so very desirable to get the boundary
question settled, both as regarded our relations with the Republic of
Guatemala and with the United States, that he undertook, on his own
responsibility, to introduce an additional article into the treaty for the
construction of the road; and the treaty containing that additional
article, accompanied by his explanatory despatch, arrived in England
just a few days before the Earl of Malmesbury went out of office. The
Earl of Malmesbury, however, was so anxious to complete the settle-
ment of the question ... that he immediately sent to Sir
Bulwer Lytton, then at the head of the Colonial Department, to ask
him whether the treaty was one that should not be ratified; and
although a grant of public money was involved, and the convention
consequently required the sanction of Parliament, yet, without that
sanction being obtained, Sir Bulwer Lytton returned an answer to the
effect that the ratifications should be exchanged. The order for the
ratification was at once given by the noble Earl, although the actual
execution of the order did not take place until after he had left of-
fice ..... since that day very important questions, which at one time
threatened to create misunderstanding between England and the
United States, had never again been raised, the matter of the boundaries
had been arranged, and this country was now entirely at ease in res-
pect to her relations with that part of Central America .. That,
then, was the history of the Guatemala road. When Mr. Mathew was
sent out a few months ago to bring the question to a final close, he
received instructions to communicate with the Guatemala Government
on the subject, the road not having yet been commenced. Political
events since his arrival there had prevented him from doing so; but







Her Majesty's Government hoped soon to hear from him on the sub-
ject, .." 158
The greater portion of Mr. Fitzgerald's question has been
hereinabove included merely to provide a background for the
Government's answer through Mr. Layard. It is precisely Mr.
Layard's answer in which the Government of Guatemala
evinces interest, and which she describes in the White Book
as an official recognition of the compensatory character of
Article 7 of the boundary convention.159 Carlos Salazar, Guate-
malan Foreign Minister, in a note of April 24, 1940, addressed
to John Hurleston Leche, Great Britain's Envoy Extraordinary
and Minister Plenipotentiary, also draws certain conclusions
therefrom. He says that the statement made by Layard def-
initely indicated that Guatemala sought compensation; that
the highway was to be constructed by the British Government;
and that this last concept logically indicates the compensatory
nature of Article 7.160
The same principles of interpretation, already applied in
considering Wyke's letter to the Earl of Malmesbury, are also
valid in their application to Layard's statement in Commons.
Thus, a careful analysis of Layard's answer discloses that
Guatemala opposed British terms for the settlement of the
boundary question. It also reveals that, in return for certain
concessions, Guatemala asked for an "equivalent." Nowhere
in the text of Layard's answer does the word compensation
appear. We must recall that the Preamble of the Convention
of 1859 states that the boundary between Guatemala and the
British holding had not as yet been ascertained and marked
out. In consequence, Layard's answer lends itself readily to the
interpretation that Great Britain would furnish Guatemala
with an equivalent, not for ceding territory, but for agreeing
to Great Britain's understanding of the true dividing line be-
tween their respective holdings. Thus, the compensation or the
15s Hansard's Parliamentary Debates, 3rd Series (2nd Vol. of the Session,
London, 1862), Vol. 166, p. 1829.
159 Page 190.
16o Cont. del Libro Blanco (May, 1940), IV, p. 168.







"equivalent" which Layard mentions might very well have been
an entirely different compensation or equivalent from that
understood by Guatemala.
As to the statement attributed to Layard that the highway
was to be constructed by the British Government, it is only half
true. The statement, as it appears in the Guatemalan note,
creates the impression that responsibility for the project was to
rest on Great Britairn alone. The vital words which qualify
Layard's answer, and show participation by both parties, are
"at an expense to be shared between the two Governments."
Compensation implies the paying or doing of something, by
one party, to or for another. In consequence, since both parties
were to pay for and assume the responsibility of building the
road, the agreement is devoid of any compensatory charac-
teristics.
In conclusion, some of the words employed in the docu-
ments cited by Guatemala can apparently be interpreted to
favor her case. Nevertheless, the very same words also lend
themselves to contradictory and unfavorable interpretations.
Guatemala offers in evidence Wyke's letter and Layard's
answer to show the compensatory nature of Article 7. Before
the evidence can be given any weight, however, Guatemala
would be compelled to demonstrate that her interpretation of
those documents is the only plausible and accurate evaluation
of their content. This would be tantamount to showing all
other evaluations of the same documents to be unreasonable
and unfounded. Such a task is, as we have already had occasion
to observe, extremely difficult, if not impossible. The point at
issue is whether Article 7 is compensatory. The issue is a ques-
tion of fact. While Guatemala's opinion of the documents is
of interest, it is subjective, and cannot therefore be accepted
for the purpose of establishing the disputed fact.










CHAPTER 14


THE DUTIES IMPOSED ON GREAT BRITAIN

Guatemala claims that Great Britain failed to comply
with her obligations.

This claim appears in a series of documents published by
the Guatemalan Government. A short summation refers to the
obligations agreed upon1"1 A statement recalls that one of the
Guatemalan Counsellors, Pedro Valenzuela, predicted that
Great Britain would not comply with her obligations.162 A let-
ter of August 15, 1866, from the Guatemalan Minister, to the
Guatemalan Foreign Office, expresses the writer's opinion that
the British would take advantage of any pretext to evade their
obligation." Another letter of January 14, 1867, from the
Guatemalan Minister, to the Guatemalan Ministry for Foreign
Affairs, mentions the British disposition to set aside the obliga-
tions contracted by the Convention of 1859.14 A final statement
of the Guatemalan case declares that Great Britain deems its
obligations to the Republic completely canceled.16
Before examining the validity of the Guatemalan claim,
however, it is necessary to develop and bring up to date the
positions of both Guatemala and Great Britain on the Belize
question.
Note has already been taken of the failure of the parties
to come to an agreement about the obligations pertaining to
each under Article 7 of the Convention of 1859. Matters con-
tinued thus very unsatisfactorily until an agreement was reached

161 White Book, p. 211.
162 White Book, p. 223.
163 White Book, p. 266.
x16 White Book, p. 294.
ls5 White Book, p. 480.






between Great Britain and Guatemala to sign a supplementary
convention on August 5, 1863. By its terms, Great Britain
engaged to recommend to Parliament that it place at her dis-
posal the sum of 50,000 to fulfill the obligation contracted
by her in Article 7 of the Convention of 1859. The Republic
of Guatemala agreed to employ the money to defray the expense
of constructing the road.
Payment was to be made in five installments of 10,000
each. Construction of sections of the road and payments were
to alternate. The first installment was to be paid by Great
Britain to enable Guatemala to hire and transport technicians
who were to supervise construction of the road. The second
installment was made contingent upon a showing by Guatemala
that the first quarter section of the road had been begun and
was being continued. Payment of the third installment was to
follow completion of the first quarter section of the road and
commencement of the second quarter section, and so on with
the other two installments. The final quarter of the road was
to be completed at Guatemalan expense. The Convention of
1863 was ratified by neither Great Britain nor Guatemala
within the six months specified by Article 6.166
Many considerations enter into a full understanding of the
failure to ratify the agreement. It is common knowledge that
chaos and despotism marked the history of Guatemala from
the collapse of the Central American Federation.167 The tur-
bulence of the times is even conceded by Guatemala in a
merforandum of October 26, 1867, from the Guatemalan
Chancellory, which states:
"This new convention reached Guatemala at a difficult time, during
the war with El Salvador and Honduras, when the Government, over-
whelmed with the demands of the situation and in the absence of the
President could not take the above mentioned treaty under im-
mediate consideration to ratify it." 168

166 White Book, p. 254.
167 Enc. Brit. (1947), Vol. 10, pp. 943, 944. See also Cont. del Libro
Blanco (Fonseca, 1941), Segunda Serie, II, p. 69.
168 White Book, p. 309.







The unsettled state of the times may have influenced the
British Government's decision not to ratify this new agreement.
The possibility also existed that, had the agreement been
ratified, Parliament may have been loathe to appropriate a
sum of money to be used in an area as agitated as the one for
which it was destined.
Subsequent to the failure of both parties to ratify the
Convention of 1863, haggling continued between them with no
definite decision or conclusion being reached. A letter of July
15, 1861, addressed to the Guatemalan Minister for Foreign
Affairs by the Guatemalan Minister to Great Britain, indicates
that the line of road was surveyed by a Major Wray acting for
the British Government.'69 Lord Stanley,170 in a reply of August
29, 1866, to a note from the Guatemalan Minister in London,
recalled that Great Britain had sent competent engineers to
survey and attempt to lay down a line of road and that it
appeared the cost of the road was far beyond that originally
anticipated, and disproportionate to any commercial benefit
which might arise from it when made.171 He then asked
whether it would not be better to abandon by mutual consent
the project of constructing the road.
To this proposal, the Guatemalan Minister, J. de Fran-
cisco Martin, in a note to Lord Stanley, dated September 13,
1866, answered that the most adequate and just manner of
terminating the affair was to renew, under present date, the
Convention of 1863 to supplement that of 1859.172
Charles Lennox Wyke, in a letter to Juan de Francisco
Martin, dated January 2, 1867, described the Guatemalan
failure to ratify the supplementary convention of August 1863,
within the time specified, as a great error.173 Finally, Lord
Stanley, for the British Foreign Office, in a note to the Guate-

169 White Book, p. 169.
170 Edward Henry Stanley, 15th Earl of Derby, Fgn. Secy. in the 3rd
admn. of Lord Derby, his father.
171 White Book, p. 272.
172 White Book, p. 274.
173 White Book, p. 288.







malan Minister, Monsieur de Francisco Martin, dated January
3, 1867, declined to sign anew the Convention of 1863, and
held the Government of Great Britain released from the obliga-
tion contracted by the 7th Article of the Convention of 1859.174
For Guatemala, a memorandum on the Belize matter was
presented to Mr. Corbett, the new British Minister, dated
October 26, 1867, and signed by P. de Aycinena, Minister for
Foreign Affairs.175 This memorandum stated that the British
position as expressed by Lord Stanley was inadmissible; that
the clarification of the principal treaty of 1859 was subject to
a new negotiation; and that it might be opportune to renew
the negotiation either in London or in Guatemala.
Fruitless correspondence about the respective obligations
of the contracting parties ensued. Major Wray reported that
the Guatemalan authorities were unwilling to proceed with
the operation of running a survey line to Garbutt's Falls.16
Guatemala states that the British Government ordered her
commissioner to suspend demarcation of the frontier pending
receipt of further instructions.177 Finally, Guatemala, through
Dr. Jose Matos, Envoy Extraordinary and Minister Plenipoten-
tiary to Great Britain, made a suggestion .that the Belize
matter be arbitrated by the President of the United States,
Franklin Delano Roosevelt..78 While Lord Halifax,'79 for the
British Foreign Office, in a note dated August 17, 1937, ac-
cepted Guatemala's proposal of arbitration, he stated that His
Majesty's Government were unable to agree that the arbitrator
should be the President of the United States.'so
Nothing that is written can better exemplify the British

174 White Book, p. 291.
175 White Book, p. 306.
176 Archives of British Honduras (Burdon, 1935), Vol. III, p. 233.
177 Cont. del Libro Blanco (Guatemala, 1940), III, p. 118.
178 White Book, p. 374.
179 Edward Frederick Lindley Wood, 3rd Viscount Halifax. Lord Privy
Seal, (1935-1937), Lord Pres. of the Council, (1937-1938). On Feb. 25,
1938, he succeeded Eden as Foreign Secretary.
180 White Book, p. 427.







point of view on this issue than the statement of Lord Halifax
to Mr. Matos in the above mentioned note of August 17, 1937:
"The issues in the present case are essentially of a legal character in-
volving difficult questions of law and interpretation which could not
satisfactorily be decided by any tribunal other than a legal tribunal of
high standing, and of all possible legal tribunals The Hague Court by
reason of the authority of its judges and the length and nature of its
experience is, in the opinion of His Majesty's Government, by far the
most suitable to decide a question of this kind."
The Guatemalan attitude, on the other hand, is nearly
indicated in a note sent by Carlos Salazar, Guatemalan Foreign
Minister, to Anthony Eden, Great Britain's Principal Secretary
of State for Foreign Affairs, dated September 22, 1937. The
pertinent portion of this note states:
.... in the pending controversy there must be taken into considera-
tion also aspects of a different character, aside that of law and legal
interpretation the questions at issue are not only of a juridical
order and therefore depart from the somewhat rigid regulations of that
tribunal [The Hague Court] which is exclusively de jure with strict
legal rules to which it must adhere in its decisions." 181
The passage of time has not materially altered the view-
points expressed by both Great Britain and Guatemala in the
notes above cited. On January 29, 1940, John Hurleston Leche,
British Envoy Extraordinary and Minister Plenipotentiary to
Guatemala, addressed a letter to Carlos Salazar, Guatemalan
Minister for Foreign Affairs.'82 In it, he expressed Great
Britain's willingness to submit the matter to arbitration. The
text of the note clearly indicated Great Britain's preference for
an adjudication by the Permanent Court of International Justice.
Failing acceptance of this Tribunal by Guatemala, two other
methods of procedure were suggested. The first was arbitration
by an ad hoc tribunal composed of an equal number of inter-
national jurists named by each of the parties, and a third
selected by the members so named. The second was also arbi-
tration by an ad hoc tribunal composed of three international

181 White Book, pp. 428, 429.
182 Cont. del Libro Blanco (Guatemala, April 1940), III, p. 133.







jurists, one selected by each of the parties and one by the Presi-
dent of the United States. Attention must be called to the fact
that the British Minister's proposal rigidly restricted the issues
which were to form the subject of arbitration. The dispute,
said Leche, arose solely out of the Anglo-Guatemalan Conven-
tion of 1859 and particularly out of Article 7 of that agree-
ment. The arbitrable issues, he went on to state, concerned
only the obligations of the parties as originally established by
Article 7.
Guatemala's reaction to these proposals came in a letter
of February 3, 1940, sent by Carlos Salazar, Guatemalan
Foreign Minister, in answer to the British Envoy's note.s8
Salazar, for the Guatemalan Government, agreed to arbitration
by a tribunal composed of three jurists, one to be named by
each of the parties and the third by the President of the United
States. He refused, however, to accept the issues on which
the British indicated arbitration should be confined. The ques-
tion, as Salazar saw it, was not whether some practical method
still existed enabling Great Britain to perform the obligations
contracted by her in Article 7. His view of the matter indi-
cated nearly that the arbitral tribunal should not be confined
to a mere interpretation of Article 7, but should be given the
widest latitude and be allowed to consider every aspect of the
case.
Matters stood thus until January 14, 1946, when a new
proposal was addressed to Guatemala by the British Secretary
of State for Foreign Affairs, through J. R. Martin Leake.1s4
The proposal contemplated settlement of the dispute by the
new International Court of Justice provided for in the Charter
of the United Nations. Leake's note called attention to the fact
that a legal dispute within the meaning of Article 36 (three)
of the Charter of the United Nations185 clearly existed between
Guatemala and Great Britain. It then went on to state that as
183 Cont. del Libro Blanco (Guatemala, 1940), III, p. 138.
184 Status of the Controversy over Belize During the Year 1945 (Minis-
try for Foreign Relations, Guatemala, 1946), p. 83.
185 Cong. Record (79th Congress, 1st Session), July 23, 1945, p. 8076.






soon as the new International Court was constituted, the Gov-
ernment of the United Kingdom, pursuant to Article 36 (two)
of the Statute of the Court,'" would make a declaration accept-
ing jurisdiction of the Court in all legal disputes concerning
the interpretation, application or validity of any treaty relating
to the boundaries of British Honduras.
Guatemala's answer to this proposal came shortly there-
after. On January 22, 1946, the Guatemalan Government,
through E. Silva Pefia, accepted it in principle.187 To the ac-
ceptance, however, was appended the condition that the judges
might take into consideration, without any restriction or limita-
tion whatsoever, all and every one of the viewpoints of the
controversy from its most remote origins. The answer makes
special reference to Article 38 (two) of the Statute which
permits the Court to decide a case ex aequo et bono, if the
parties agree thereto.188
This is where the matter stands at the present time. It is
apparent that the gulf which separates British from Guate-
malan opinion is as wide as ever. Great Britain persists in her
efforts to obtain a definition of the issue in the narrowest
possible terms. Guatemala is no less determined to prevent any
restrictions from being placed upon the arbitral tribunal which
is to consider the dispute. In short, there is no meeting of the
minds about the subject matter on which the tribunal is to pass
judgment. Little likelihood exists that any agreement, in this
regard, will be arrived at in the near future.
With the foregoing material in mind, we are now ready
to examine the validity of the Guatemalan claim that Great
Britain failed to comply with her obligations. In this regard,
it is important that the basic idea entailed in the use of the
word obligation be understood.
There is no legal dictionary meaning of the word obliga-
tion differing essentially from that which is commonly under-
18 Cong. Record (79th Congress, 1st Session), July 23, 1945, p. 8081.
187 Status of the Controversy Over Belize During the Year 1945 (Minis-
try for Foreign Relations, Guatemala, 1946), p. 85.
188 Cong. Record (79th Congress, 1st Session), July 23, 1945, p. 8082.






stood by the term. The word obligation implies the binding
power of a promise, contract, oath or law, by which one person
becomes bound to do something to or for another, or to forbear
or desist from the performance of some specific act, acts or
series of acts.
In almost every case where a conflict of interests exists
over the meaning or the purport of a written document, the
original document is the best yardstick of the particular mean-
ing or purport imputed to it. The case at hand is no exception
to the general rule. The document in question is, of course, the
Convention of April 30, 1859. The section which has given rise
to the question of the obligations resting on Great Britain is
Article 7 which is as follows:

"With the object of practically carrying out the views set forth in the
preamble of the present Convention, for improving and perpetuating
the friendly relations which at present so happily exist between the two
High Contracting Parties, they mutually agree conjointly to use their
best efforts, by taking adequate means for establishing the easiest
communication (either by means of a cart-road, or employing the
rivers, or both united, according to the opinion of the surveying engin-
eers), between the fittest place on the Atlantic coast, near the settle-
ment of Belize, and the capital of Guatemala; whereby the commerce
of England on the one hand, and the material prosperity of the Re-
public on the other, cannot fail to be sensibly increased, at the same
time that the limits of the two countries being now dearly defined,
all further encroachments by either party on the territory of the other
will be effectually checked and prevented for the future." 189

It is in the light of this section that we must measure the
worth of Guatemala's claim. When so measured it impels the
query as to just what Great Britain's obligations were under
Article 7. The answer is inescapable that only one obligation
existed. It was to use her "best efforts," conjointly with Guate-
mala, to construct a cart-road between the Atlantic coast near
the settlement of Belize, and the capital of Guatemala. Great
Britain was not obliged, as some have stated, to use her "best

189 49 British and Foreign State Papers 7. See also Col. de los Trats. de
Guatemala (Rodriguez-Cema, 1944), Vol. 3, p. 151.






means" to this end.'" Neither was it incumbent upon her to
employ her "resources" for the purpose.1?1 The difference in
meaning between the word "efforts" on the one hand and the
words "means" and "resources" on the other is too apparent
to merit serious comment. The distinction is not confined to
the English language alone. It is also true of the words in
Spanish which correspond to those above noted.
The obligation envisaged by Article 7 is bilateral. This is
obvious from the use of the word conjointlyy." It is, however,
a peculiar type of bilateral obligation. It does not require both
parties to the contract to perform or accomplish a given task.
It only binds them to conjointly use their best efforts to do so.
The terms in which the obligation is couched, therefore, put
grave difficulties in the way of determining whether the obliga-
tion undertaken was discharged.
In essence, therefore, the question posed is not whether
Great Britain built the road, but whether, conjointly with
Guatemala, she used her best efforts to build it. In the presence
of the fact that the parties were not in agreement as to the
meaning of Article 7 of the Convention of 1859; that Great
Britain agreed to submit the long standing differences to
adjudication; that Great Britain, to supplement the Convention,
engaged to recommend an appropriation to build a road; that
the periods during which these treaties were drawn up are
known to history as having been turbulent; and that the line
of road was surveyed by British engineers; how, may it be
asked, is it possible to prove that Great Britain did not use her
best efforts to implement Article 7 of the Convention of 1859.
The difficulty of establishing such a claim is conceded by
the Guatemalans themselves when, in the course of presenting
their case, they describe Article 7 as "vague, without fixed
period and without sanctions, ."192 The best description of
the difficulty presented, however, is the one given by Pedro
19o Nuestro Belice (Vela, 1939), pp. 127, 166. See also White Book,
p. 178.
191 Nuestro Belice (Vela, 1939), p. 166.
192 White Book, p. 109.


100







Valenzuela who was a member of the Guatemalan Council of
State when that body ratified the agreement. Valenzuela voted
with the minority against ratification. His comments, as they
touch on the present day difficulty of demonstrating that Great
Britain did not comply with her obligations, were stated in
1859 as follows:
'Article 7 of the agreement has no value. It assumes substantial expen-
ditures for which no appropriation has yet been made. It does not,
moreover, fix any of the conditions related to the performance con-
templated therein such as time, kind or duration. It is so indefinite
that any obstacle arising from the failure to set these conditions could
easily vitiate the entire undertaking.' 193
The very vagueness of the article is a barrier in the path
of the claim now brought forward by Guatemala. It makes the
claim all but impossible to demonstrate, considering the loose
and disengaged nature of the duties ascribed to the parties
thereunder. No formula to resolve Guatemala's untenable posi-
tion, in this regard, exists nor can any be created by making
extravagant assertions. Guatemala should have insisted on a
clear definition of the duties incumbent upon both parties in
concise and specific language. This she failed to do.
Note will, of course, be taken of the fact that the Conven-
tion of 1863, between Guatemala and Great Britain, has not
here been further considered. The reason for the omission is
plain. The treaty was never ratified by either Guatemala or
Great Britain. It did not, therefore, acquire the status of a valid
contract between the parties. Even if the treaty had been rati-
fied, however, this would not ameliorate Guatemala's position
in relation to the claim that Great Britain did not fulfill her
obligations. The best way to demonstrate the assertion is by
having recourse to the unratified pact of 1863. The applicable
portion of that agreement, as it would affect Great Britain's
obligations toward Guatemala, is contained in Article I, and
states:

193 Belice (Asturias, 1941), 2nd Ed., p. 119. See also White Book,
p. 114.


101






"Article I. Her Britannic Majesty engages to recommend to her
Parliament to place at her disposal the sum of 50,000 in order to
fulfil the obligation contracted by her in the VIIth Article of the
Convention of the 30th April, 1859. The said sum of 50,000 shall be
paid by instalments to the Government of Guatemala in order to en-
able them to undertake the construction of a line of communication
from the city of Guatemala to the Atlantic coast of that Republic, in
the direction that may be proposed by the Government of Guatemala
and approved by the Government of Her Britannic Majesty; and that
the two Governments shall consider the most desirable to adopt,
whether by land, or by partly making use of the River Motagua,
or by any other route best calculated to communicate with the British
possessions in Belize. With this object in view, and for this purpose,
Her Britannic Majesty's Government will pay to the Government of
Guatemala the above-mentioned sum of 50,000 at the periods fixed
in Article III hereinafter contained."194
With the wording of Article I before us, we are now in a
position to state that, even if the treaty containing the article
had been ratified, the only obligation incumbent upon Great
Britain was to recommend to Parliament that it make available
50,000 to undertake a line of construction from the city of
Guatemala to the Atlantic. This obligation would be and it
cannot be emphasized too strongly not an engagement to
furnish the sum of 50,000 but an undertaking by the diplo-
matic arm of the British government to present the matter to
Parliament affirmatively so as to induce Parliament to provide
the stated sum. In short, assuming the treaty had been ratified,
the obligation would be a mere promise to "recommend."
We have already examined the difficulties involved in
attempting to show that the parties to a contract did not use
their best efforts to perform a specific act. It would be even
more difficult to prove the failure to discharge an undertaking,
as in this case, when the undertaking is, in effect, a promise by
one party to petition a superior and independent legislative
body to perform an act of appropriation in favor of the other.
Final performance or appropriation would be at the will and

194 Copy obtained through the courtesy of the British Foreign Office.
See also White Book, p. 246. For Spanish text of the treaty and of this article,
see Col. de Trats. de Guatemala (Rodriguez-Cerna, 1944), Vol. III, p. 157.


102






discretion of Parliament. What is more, Parliament could not
in such a matter be bound by the diplomatic arm of the govern-
ment. No provision was even made that such a recommenda-
tion be in substantial or documentary form.
We can only conclude that, in all the negotiations which
surrounded the drawing up of both of these treaties, Guatemala
was either ill advised or unduly trusting. In neither case will
this avail her against the improvident acceptance of the
phraseology which went into the final drafts of the Conven-
tion of 1859, and the unratified Treaty of 1863.


103









CHAPTER 15


GUATEMALA INVOKES THE
CLAYTON BULWER PACT

Guatemala claims that the Convention of 1859 was a
violation by Great Britain of the Clayton Bulwer Pact.

This claim appears early in the course of the Guatemalan
case. The statement is there made that the reticence imposed
by Great Britain in her convention with Guatemala was due
to the necessity of concealing proof that Great Britain was
flagrantly violating the Clayton Bulwer Treaty."' The claim
also appears near the close of the Guatemalan case, when
Guatemala calls attention to the fact that, in negotiating the
Treaty of 1859, Great Britain took special care to avoid the
embarrassing position in which the British were placed by
the Clayton Bulwer Pact.'19
In the material reviewed between these two citations,
Guatemala includes a statement by Beverley L. Clarke, United
States Minister Resident to Guatemala and Honduras, con-
tained in a letter dated October 1, 1859, to Pedro de Aycinena,
Guatemala's Foreign Minister.197 In this letter, Clarke, for and
in the name of the Government of the United States of Amer-
ica, protested against the Treaty of April 30, 1859, between the
Republic of Guatemala and the Government of Great Britain,
"... as a clear and palpable violation of the letter, spirit, and
provisions of the treaty between Great Britain and the United
States of America dated July 5th 1850, and commonly known
as the Clayton and Bulwer treaty."

195 White Book, p. 56.
r1 White Book, p. 481.
197 Dipl. Corr. of the U.S. (Manning, 1934), V. IV, p. 773.


104




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