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New Light on the Belize Dispute Author(s): Wayne M.

Clegern Reviewed work(s): Source: The American Journal of International Law, Vol. 52, No. 2 (Apr., 1958), pp. 280-297 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2195550 . Accessed: 24/01/2013 22:00
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NEW LIGHT BY

ON THE
WAYNE

BELIZE

DISPUTE

M. CLEGERN

Teaching Assistant,University California of I British Honduras, or Belize, has a diplomatic historyat once notable and obscure. Bordered by the Mexican State of Quintana Roo, the Republic of Guatemala and the Caribbean Sea, this British Colony has an area of 8,598 square miles and is thus a little larger than Wales or Massachusetts. An internationalpawn since the seventeenthcentury,British Honduras has been the subject of a dispute between Great Britain and Guatemala since 1859, in whichyear theymade a treatydefining southits ern and westernboundaries. It was officially made a British colony in 1862, a Crown colony in 1870, and was released fromadministrative subordination to Jamaica in 1884. Guatemala challenged the British title to it intermittently and futilely during this period. Several decades of diplomatic indecision followed. The Guatemalan challenge was renewed in earnest in 1931, and the controversy became heated after 1936. In 1940, deferringto British preoccupation,President Jorge Ubico set the issue aside forthe durationof the secondWorld War. In September, 1945, Guatemala announcedreactivationof the question,and the late 1940's saw anotherspirited exchange of views. This desultoryAnglo-Guatemalandispute over British Honduras continues,' and its mere existencecreates an awkwardnessin trans-Atlantic relations. That the dispute remains unresolved is due ostensiblyto the failure of Great Britain and Guatemala to agree on a jurisdictionalquestion. Both nations have said the International Court of Justice might decide the dispute. Great Britain accepted the Court's jurisdiction over the matteras a legal question in 1946. Guatemala has insisted,however, that any decisionon this questionmust be ex aequo et bono. Neithergovernment seen fitto changeits view.2 has
I For a recent expression of Guatemala 's policy of " revindication" see C. Castillo Armas, "Informe del Presidente de la Repdblica Coronel Carlos Castillo Armas al organismo legislativo al inaugurarse sus sesiones ordinarias," in El Guatemalteco (Guatemala), No. 73, March 4, 1957, pp. 980-981; also see Guatemala, Ministerio de Relaciones Exteriores, Decreto No. 511, ibid., No. 29, Jan. 6, 1956, p. 1, wlich created the Consejo Nacional de Belice, a planning, study, and consulting body to deal with the problems of regaining Belize. 2 W. H. Gallienne to C. Hall Lloreda, Guatemala, Oct. 26, 1948, in Diario de Centroam6rica, secci6n informativa, No. 76, Oct. 30, 1948, discusses the Britislh viewpoint; Hall Lloreda to Gallienne, Guatemala, Oct. 29, 1948, ibid., No. 77, Nov. 2, 1948, gives Guatemala's objection to a strictly legal decision; for a sketchy, running account of the affair since 1948 see Hispanic American Report (Stanford, 1948-).

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If the dispute should be finally committedto the Court's decisionwhetherfor an equitable or for a strictlylegal decision-there are certain questions which must be answered. In 1946, during the postwar recommencement the controversy, of Josef L. Kunz thoroughly delineatedthese questions. Kunz, referring the Anglo-Guatemalan to treatyof 1859, said: The first problemthe Court will have to decide is the characterof this treatyand the meaningof its Art. 7; thisnecessitates interpretation the of the treaty.3 should take into consideration treaty'snegotithe Such an interpretation ation and the negotiationand lapse of its additional conventionof 1863. There has been published no adequate account of those negotiations. The Guatemalan Government has published importantdocumentaryinformation in its White Book (1938) and a plethora of legal and other opinions in the supplementsthereto,and has sponsored numerousmonographson the subject. On the other side, the British and Foreign State Papers, 1859-1860 (1867) contain a considerablebody of correspondence bearing directlyon the negotiationof the 1859 treaty. Further,the noted British historian,R. A. Humphreys,has writtenfor InternationalAffairs(1948) an outstanding interpretation the dispute. This last, however, of obviously was designedto redressthe balance of Guatemalan propaganda.4 These publications do not give sufficient attentionto a group of documents both pertinentand available: the records of the British Foreign Office. This material provides a virtuallycompletepicture of the British side of the negotiations, and interesting insightinto the Guatemalan side. The object here is to bring these documentsto notice and throughthemto assess the characterof the 1859 Treaty.5 It should be remembered that the treatyconstitutes in just one of several elements the case. Its interpretation will shed light primarilyon the question of cession, rather than on the issue of title by occupation. Accounts of the dispute fromits beginnings in the colonial period exist in abundance, but here we need to consider only such historicalbackgroundas is required to ulnderstand question the of cession. the historyof Belize during the era of the Spanish Empire Simplified, in America tells of the occupation of a deserted stretchof coast on the Gulf of Honduras by English pirates and logwood-cutters.According to Spanish law this territory, north of the River Sibu'n, belonged to the Captaincy General of Yucatan, which was in turn an integralpart of the Viceroyaltyof New Spain. The area south of the Sibu'n belonged to the Captaincy General of Guatemala. Eventually this meant that all Spanish title to the area above the Sibuinwas claimed by Mexico and that below
3 J. L. Kunz, " Guatemalavs. Great Britain: in re Belice," 40 A.J.I.L. 383-390 (1946). His footnotes providea ratherthorough bibliography the disputethrough of 1946. 4 See Kunz for detailed citation of the Guatemalanpublications; 50 British and Foreign State Papers 126-237 (1867); R. A. Humphreys, "The Anglo-Guatemalan Dispute," 24 International Affairs387-404 (1948). 5 ClearlyHumphreys lias utilizedthesematerials, but without citation.

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it by Guatemala,since these nations were respectively the successorstates of the Viceroyaltyof New Spain and the Captaincy General of Guatemala. From 1763 to 1814 Great Britain and Spain signed a number of treaties enumeratingcertain concessionaryrights to the British at Belize. Accordingto these instruments Spanish title remainedunchallengedthrough 1786. From themit may be presumedthat title remainedwith Spain even after 1815.6 Great Britain soughtto retain possessionof her Central Americanholdings after the Spanish American nations became independentin the early 1820's. But she still did not claim formal sovereignty. Recognition of British rightsin Belize was gained fromMexico in 1826, but neitherthe Central American Federation nor its successor state, Guatemala, would extend such recognition. Mexican recognitiongave Great Britain a title only as far south as the Sibun, but British occupation extended to the Sarstun. Thus Great Britain met the United States in the hectic diplomatic contest overisthmian rightswiththe southern and western boundaries of Belize undefined. The 1850 Clayton-BulwerTreaty, which provided for joint BritishUnited States controlof any interoceaniccanal developed by them on the Isthmus,prohibitedeithernation frommaintainingdominionsin "Central America." The treatywas thus deliberatelyvague. "Central America" could be a geographic descriptionof the Isthmus or could refer to the defunct Federation so named. However, the declarations by Secretary John Clayton and MinisterHenry Bulwer at the exchange of ratifications made it clear that the treaty did not apply to British settlements around Belize. At the same time Clayton stipulated that the rightsof no Central American state were compromisedby the treaty or by any part of the negotiations. This left Great Britain in firmpossession of British Honduras withinthe limitsto whichit had legal titlebeforeApril 19, 1850, the date of the signing of the Clayton-BulwerTreaty. She still needed to offset Guatemalan rightsto the area south of the Sibutn. One way to accomplishthis was by treaty. A memorandum Foreign Office by counsel, upon which the instructions for negotiatingthis treaty were based, indicates the Britishneed and solution: The point . . . which Great Britain has to establish against the Republickswhichpossessthe former territories Spain in that quarter of is, how the British rightof occupation or usufructunder the [AngloSpanish] Treaties of 1783 and 1786 has becomeconvertedinto a right of sovereignty. We maintainthat the Treaties of 1783 and 1786 were abrogated by the subsequentwar between Great Britain and Spain; that duringthewar the boundariesof the Settlement Honduras were of enlarged; and that when peace was reestablished,no Treaty of a political nature or relatingto territorial limits,revived those Treaties between Great Britain and Spain which existed previously.7
6 A convincing and scholarly generaltreatment Belize duringthe Spanishcolonial of periodis J. A. Calder6nQuijano,Belice, 1663(?)-1821, historiade los establecimientos britgnicos Rio Valis hasta la independencia Hispanoam6rica del de (Sevilla, 1944). tJ. B. Bergne, "Memorandumon Draft Treaty with Guatemala relativeto the Boundaryof BritishHonduras," Foreign Office, Jan. 14, 1859, Public RecordsOffice,

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The memorandumsubsequentlyassesses the inherentweakness of this position: It does not seem clear at what time the extensionof the British occupation fromthe Sibun to the Sarstoon took place. The nature of the claim of Great Britain necessarilyimplies that it was during the war with Spain. The United States was contendingthat the British expansion took place largely afterthe 1809 treatyof alliance betweenGreat Britain and Spain, and-being encroachmentrather than true conquest-was illegal. The British memorandum admits that if the expansion did indeed take place after 1809 "the argumentfounded on conquest and on the abrogationof old treatiesby the War, would be impaired." 8 The Foreign Office had then a rather restricted field of maneuver. On the one hand, its legal claims to title betweenthe Sibu'n and the Sarstuin riverswere definitely questionableas against those of Guatemala. On the otherhand, a political agreement which would clearly conveytitle by cession fromGuatemala was forbiddenby the Clayton-BulwerTreaty and a jealously watchful United States Government. The British Minister to Central America, Charles Lennox Wyke, was made cognizant of these limitingcircumstances, was named plenipotentiary negotiatea treaty and to with Guatemala. It was signed on April 30, 1859, in Guatemala City,and the ratifications were exchanged there the followingautumn. This treatyhad two distinctparts. The firstsix articles-which dealt with the definition, survey, and administration the Guatemala-British of Honduras boundary-had been dictatedby the British Government. They provided that the boundaryshould extend fromthe mouthof the Sarstun, up that river to Gracias a Dios Falls, thence north to Garbutt's Falls on the Belize River, and fromthat point due north to the Mexican border. Each state was to appoint a boundary commissioner within a year. An umpire and a detailed procedurefor arbitrating intra-commission disputes were also provided. Each government was to pay the expenses of its commissionerand of his party. Navigable waterwayswhich formedportions of the boundary were to be open and free to navigation by both parties. The eightharticle provided for ratification withinsix months. Article 7 of the treaty had a distinctlydifferent purpose and origin than the others. By proposing its addition on his own authority, Wyke obtained Guatemala's assent to the entire treaty draft sent out by the Foreign Office. This controversialseventh article states: With the object of practicallycarryingout the views set forthin the preamble of the present conventionfor improvingand perpetuating the friendlyrelations which at present so happily exist between the two High ContractingParties, they mutually agree conjointlyto use
Foreign Office Section15, Vol. 114, folios 1-12 (cited hereinafter FO followed as by the appropriate section/volume, folio number),Microfilm, and BancroftLibrary,Universityof California,Berkeley. In this paper, citation of outgoingForeign Office correspondence to draftcopies. is
S Ibid.

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theirbest efforts, taking adequate means for establishing the easiest by eitherby means of a cartroador employing rivers, communication( the or both united, according to the opinion of the surveyingengineers) betweenthe fittest place on the Atlantic coast, near the settlement of Belize and the capital of Guatemala,whereby commerce England of the on the one hand, and the material prosperityof the Republic on the other,cannot fail to be sensiblyincreased, at the same time that the limits of the two countriesbeing now clearly defined,all furtherencroachmentsby either party on the territoryof the other will be effectually checked and prevented for the future." It would be difficult imagine a more impreciseagreement. But Wyke to and Pedro de Aycinena,GuatemalanForeign Minister, had a verbal understandingwhichwas supposed to supply the required precisionwithoutthe disadvantage of publicity. II Guatemalans have long claimed that they ceded certain territory, or at the very least all theirrightsto that territory, Britain in the Treaty to of 1859. Article 7 was put in the treaty, theysay, to compensatethemfor that cession. It was worded vaguely that it mightnot openly violate the Clayton-BulwerTreaty's prohibition of British expansion in "Central America." The Britishhave repliedthat it was, as plainly statedtherein, a convention defineboundarylimitsbetweenareas over which sovereignty to was already generallydetermined. Further,the disputed Article 7, as its text states,was a measure presumedto benefit both parties, and was perfectlyexplicable in its own terms. To decide which interpretation the is more accurate, it is obviouslydesirable to know,insofar as possible,what representatives the two governments of thought about the treatyat the time of its negotiation. The Foreign Office instructions Wyke,and the memorandum which to on they were based, state plainly that he was not to accept any part of the proposed boundary as a cession from the Republickof Guatemala,or to accept,as it were,a Title to any part of the British occupation fromthe Republick. Particular concernwas expressed about the area between the Sibu'n and the Sarstu'n. Manifestly,the Clayton-BulwerTreaty was the reason for avoiding any appearance of a cession. Thence came the British conception of a boundary line previously existing, but not yet ascertained. The language of these instructionsindicates rather clearly that Britain expected Guatemala to claim legal rightto the area below the Siblin.10 Wyke,a man whoseknowledgeof Guatemalanaffairs was much respected in the Foreign Office, believed refusal to admit a cession would constitute " "the great difficulty in obtaining a boundary agreement. Guatemala,
9 The text of this instrument has been frequently published and may be found, together with various preliminarydrafts, in FO 15/114. 10Earl of Malmesbury to C. L. Wyke, Foreign Office, Feb. 16, 1859, FO 15/114, ff. 13-19.

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aware of the extra-legalnature of British occupation of much of the area for withinthe desiredboundary,would demand an indemnity quittingher of claims to it. Wyke saw the inconvenience violatingthe Clayton-Bulwer Treaty but, if he were to be certain of gaining the desired boundary, could not promiseto avoid a cession. Indeed, he saw the probablenecessity of a covert agreementto that effect.1' The day the treaty was signed, on his April 30, 1859, Wyke confirmed prediction:settlement a basis other than compensated cession had been refused. The Guatemalan position remainedunshakenbecause,said Wyke, right beyond that af actual possesin point of fact we have no legral sion, to the tract of countrybetween the Rivers Sibun and Sarstun which formerlybelonged to the Ancient Kingdom of Guatemala."2 Wyke had proposed Article 7 as a Thus, departing from instructions, problem. His immediateexplanation of single solutionto the many-sided of this solutionis of course basic to any correctinterpretation its intended effect. A key sentence in his orig,inaldispatch reiterates that British claims below the Sibuin were weak. This statement's importance is heightenedby the fact that the British officialpublished version of it (1867) was altered textuallyto support the British claims:
ORIGINAL PUBLISHED

As we are rapidly losing the carryingTrade 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 succeed in acquiring a good and legal Title to Our Settlement of Belize, the want of which at present forms our weakest point in the whole Central American question, it appeared to me, I should be justifiedin somewhatexceeding my Instructionsif by so doing I could bring about so positive a good."3
11 Wyketo
12 14

As we are rapidly losing the carryingtrade 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 settlements of Belize, it appeared to me I should be justified in somewhatexceeding my instructionsif, by so doing, I could bring about so positive a good.14

of the establish limits our time,

and Foreign State Papers, 1859-1860,pp. 243-244. This versionof the Britislh paragraphsof the original,paragraphswhichtended dispatchomitsmorethan tlhree argument. At least one otherdispatchfromWyke the Foreign Office to contradict in (Feb. 7, 1860) and one fromConsulW. Hall (Jan. 28, 1860), published this volume, have similar deletions.

13 Ibid.

March 31, 1859,FO 15/106,ff.94-97. Guatemala, Malmesbury, April 30, 1859,FO 15/114,ff.45-49. Guatemala, Wyketo Malmesbury,
Italics added.

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The Foreign Officerelayed Wyke's dispatch and the treaty to the Colonial Office(the departmentresponsible for British Honduras). In a rather offhand reply, the Colonial Secretarysaid he was "aware of no reason" why it should not be ratified. The Legation in Guatemala was instructedto exchange ratifications and to express to the Government of Guatemala the British Government's "high satisfaction" with the treaty. Specificand completeapproval was given to Article 7.15 After formal ratification the Guatemalan Executive in September, by 1859, the treaty faced yet another political test in that country. The President's Council of State had voted to ratifyby the narrow margin of three votes, after which elementsof opposition in the countrybecame so vociferous in denouncing the treaty, that the Governmentfelt only a unanimous Congressionalvote of approval could squelch their criticism. Failure to obtain a large majority might destroy the treaty's effectiveness. Oppositionwas strengthened duringthat autumnby public evidence of the Cabinet discord over it, and for that reason the Government urged that Great Britain at once commencesurveys for the road projected in Article 7. This would provide demonstrableproof of her good faith. The oppositionhad duly publicized that the article depended on such good faith. They maintainedthat Guatemala had ceded for a worthless promise a large tract over which it had always claimed sovereignty.", In December,1859, the Foreign Office appointed Henry Wray, Captain of Engineers,to carry out the survey. In its almost cheerfulacceptance of the cost of this survey the British Government carefullyasserted that Guatemala should pay for the road's actual construction. Great Britain's proper role was to be one of scientific guidance. Lacking exact knowledge of its obligationsunder the treaty,the Foreign Officecarefully avoided unnecessarycommitments instructedits representatives do likewise. and to Its caution was heightenedby opposition to the treaty in the Colonial
Office.17

The extensivenature of the British financial commitment the road to was probablyfirstrevealed in London by a dispatch fromHall writtenon January 28, 1860. Oppositionin the Guatemalan Congresshad taken the Constitutionalground that the Executive had no warrant for making a treaty whose tendencywas to cede any portion of the territoryalways considered as belonging to Guatemala. Thus Hall temporarilywithheld the Foreign Office assertionthat Guatemalawas to pay all construction costs. Its revelation,he said, probably would have resulted in the Congress " throwingout" the treaty. The Guatemalan Government had always believed that Article 7 meant the two governments would conjointlybuild the road,
Malmesbury W. Hall, ForeignOffice, to June30, 1859,FO 15/114,if. 74-75. dispatches fromBritishrepresentatives Guatemalato Lord J. Russell in in depictthissituation:fromHall, Sept. 17, ff.78-79; fromHall, 1859,all in FO 15/114, Sept. 30, if. 90-91; from Wyke, Oct. 19, if. 93-96; and from Wyke,Oct. 22, ff.119-120. 17 Russellto Hall, ForeignOffice, Dec. 15, 1859,FO 15/114,if. 137-141.
15

18 Four

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as it was privatelyarranged and understoodbetweenthe Guatemalan Government and Mr. Wyke,but whichit was not deemednecessaryor expedientto insertin the Convention.'8 Hall threw considerable light on the current situation, but Wyke's dispatch fromNicaragua on February 7, 1860, spoke with more authority on the treatyitself. He stated in more detail why he had proposedArticle 7 and what he understoodit to mean. Certain correspondence from the Colonial Office had given a "plain meaning" interpretation the treaty to which would restrictthe British commitment. CommentedWyke: "it is impossible to help smiling at the naivete of this declaration. . . ." He recounted again his understandingthat Great Britain had lont sought to obtain a legal title to the area between the Sibu'n and Sarstun, first fromSpain and thenfromGuatemala,and how this had been preventedin recentyears by the Clayton-BulwerTreaty. In negotiatingfor the title, said Wyke, "I should have utterly failed,had it not been for this very road-making stipulation. . . ." He concluded that, on signing the treaty, both parties had understoodthat Great Britain would furnish scientific direction, Guatemala the materials, and that the two countries would share equally in paying the laborers."9 After legislative ratificationwas obtained, Hall communicatedto the Guatemalan Cabinet the British opinion that Guatemala should bear construction costs. The Guatemalan Cabinet, holding news of the British attitude in strictest secrecy, rushed a courier to Wyke, who was in Nicaragua. Wyke became alarmed lest revelationof the British attitude endanger the treaty. If it should leak out of the Cabinet, he said, "the Opposition will succeed in . . . repudiating our Conventionfor defining the Boundaries . . . of Belize." 20 That such a situation could develop under the dictatorshipof President Rafael Carrera, epitomeof the Latin American caudillo,is indicative of the widespread public clamor against the British treaty.2' Wyke's analysis of the Guatemalan political systemmay be questioned,but it contains basic evidence of the meaning attached to the treatyat the time of its ratification. In sum, he testified that Guatemala, government and people, believed their claims to certain ancientrightswere given up by it. To themArticle 7 was unquestionably the compensationfor that cession. The destructionof this belief would mean their repudiation of the treaty. III The PalmerstonCabinet in the spring of 1860 knew it was deeply committedby the Guatemalatreaty. Three years morewere spent determining just how deeply. The return of Wyke to London provided complete information upon the negotiatorycommitment. But data upon which to
18

it Wyketo Russell, Managua,Feb. 7, 1860,FO 15/114, 211-217. ff.

Hall to Russell,Guatemala, Jan. 28, 1860,FO 15/114,ff.203-208.

20 Ibid., f . 218-222. 21Hall to Russell,Guatemala, April 30, 1860,FO 15/114,ff.263-265.

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make an exact calculation of the government'sobligations,necessary before requestinga Parliamentaryappropriation,awaited completionof the road survey. Captain Wray forwarded his report on the survey from Belize in early January, 1861.22 It indicated that a usable road would cost about ? 145,465.10or half again as much as Wyke and Aycinena had calculated. Also it arg,uedthat in the long run the proposed road might injure what remained of Belize's trade, if indeed it had any effect all. at Wray's reportmade the already "onerous" obligrations the treatyappear of still more unsatisfactory, and was the basis for a brisk exchange of memorandawithinthe Cabinet duringMarch and early April. When the Foreign Secretary,Lord Russell, asked for opinion on the reply came fromthe Duke of Newcastle,Secretaryfor the treaty,the first Colonies. His sharply worded note placed all responsibilityupon the Foreign Office. Reasoning a priori that Parliamentaryapproval would be difficult obtain,he consideredways and means of sheddingBritish oblito gations toward the road project: If the Treaty were considerednot worththe price at which it seems we are now called to purchase it, mightit not, withoutany violation of good faith,be represelnted the Guatemalan Goverlnment to that the "understanding" between the Plellipotentiarieshaving been adopted in igniorance the facts and the survey having proved that the 7th of Article is almostimpracticable Conventionmustbe foregone the unless Guatemala would accept it withoutthe Article? If however Guatemala really estimates this Article so highlyeven at the cost of ? 72,000 as her share for the Road-and insists upon its retention, thenI think, withthe almostcertainty that we have that Guatemala neither can nor will pay her share and that our moneywill be spent for an undertaking whichcan never be completed, we might fairly demand that before the work is commencedeach Countryshall deposit its share in the hands of some thirdparty. The result would no doubt be that Guatemala would never pay and the road would not be made.23 Palmerstonforwardedhis reflections, contentiousin tone, about three less weeks later: It may well be doubtedwhether Parliament would vote so large a sum for makinga Road in the Territory anotherState and which could of not be shownto be of greatand directadvantage to a BritishTerritory. I suppose it would be said that the agreementto contributeto the Road was the Price paid for the new Boundary. If so we could hardly keep the Boundary and not contributeto the Road.24 At this point in the discussion Wyke formallyrecorded his view of the affairin a series of three memorandafiled at the Foreign Office. In the firsthe defendedhis cost estimateas against that of the survey commissioner,whom he described as a "superficial observer." Concluding,
22 Captain H. Wray to Russell,Belize, Jan. 6, 1861, FO 15/115,if. 1-43; a printed versionfollows, ibid., if. 43-67. 23 Duke of Newcastle, Memorandum, London,March6, 1861, FO 15/115,if. 206-209. 24 Viscount H. J. T. Palmerston, Memorandum, London,March 26, 1861,FO 15/115, ff.210-211.

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he reiteratedthat the treatyhad gained for England title to the area between the Sibiun and Sarstiun,and "the final adjustment of the whole Central American Question." 25 X In the second memorandum defended the limits establishedby the he treaty for British Honduras against recent criticismfrom timber-cutting concernsin the colony. He noted that those limits had in fact been laid down originallyby a formerSuperintendentof Belize after consultation with the "best informed" elementsof the colony. It appears also, that all grantsof land South of the River Sibun, were made subject to the conditionthat if any part of that territory had hereafter be ceded to thosehaving a rightful to claim to it, the holders of such grants were not to consider themselvesentitledto compensation for any losses that mightaccrue to themthereby.20 The last memorandum recorded his understandingr with Aycinena: In order to avoid any misunderstanding, after my departure from England, as to the roadmaking article to the Treaty of April 30, 1859, I think it betterto place on record for the sake of future reference if necessary,what passed verbally . . . between us, that both should cooperate in carrying out this work as follows; governments viz.: England was to furnishall required for its scientific direction& practical operation in all matters,that is to say skill [sic] labour, therewith concerned, defrayina the expense of the same, whilst Guatemala was to provide all the materials which the Country produced for the constructionof the Road, and as many labourers as were necessaryfor carryingit out, the wag,esof the latter being defrayed equally by both governments. . . At the time the Treaty . was signed, Don Pedro and myself estimated the expense of thus the constructing road at ?80,000,or at most?100,000.27 This last-mentioned estimate was the basis for Wyke's opinion that the British Government could not be held liable for morethan ? 50,000. Also, in this memorandum, again explailnedthat Article 7 was deliberately he vague to preventthe United States Government from assertingthat by this clause we had bribed that of Guatemala to cede their rightto the 500 leagues of Territory which we gained a legal to title by this Convention. Reading the memorandaof Newcastle and Wyke, the Secretary of the Exchequer, William Gladstone,did not see that the Government had yet reached a position from which it could take positive action. Nor did he take a flattering view of Wyke's handiwork. It seemed preposterousthat the Treasury was to pay out money on the basis of an unwrittenunderstanding and the "virtually unintelligible" Article 7: It is useless to look back on this extraordinaryaffair,or to ask in what form it can be made tolerable to Parliament, which has been unconstitutionally bound, so far as Government can bind it, to pay public moneywithoutits consent.28
Wyke, Memorandum 1], ForeignOffice, [No. March28, 1861,FO 15/115, 188-190. ff. 2], March29, 1861,if. 192-193. 3], March29, 1861,ff.194-195. 28W. Gladstone, Memorandum, April 3, 1861, FO 15/115,if. 200-202.
25

26 Ibid., [No. 27 Ibid., [No.

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This note appears to have furnishedthe impetusleading to the additional of convention 1863. The day followingGladstone's memorandum, Russell orderedWray home fromCentral America for consultation. Partly as a result of those consultationsduring the summer of 1861, Russell informedthe Colonial Office September,with referenceto the in Treaty of 1859, that he believed it "inadvisable and ihost impolitic to cancel that treaty." 29 Two months later the new British Minister in Guatemala City was instructedto obtain the Guatemalan Government's opinion upon the next step in the road project. Russell admonished, however, that "the views of the GuatemalanGovernment mustbe expressed with precision and in detail." 30 It was suggested that an additional convention would be the most desirablemeans to that end. The definitive Foreign Office now awaited concrete proposalsfromGuatemala. They were not forthcoming. Weary of Guatemalan delay, the British proposed an additional conventionin December,1862. Aside fromthe expensesof the chiefengineer and his staff,the British were to pay ? 25,000 of constructioncosts. Guatemala was to match the amount and to pay any costs beyond the ? 50,000 thus deposited. Asserting once more that Guatemala must receive the adequate compensation providedby Article 7 beforegivingup its rightsin Belize, Aycinena declinedthe proposal. The British share would have to be much greater.3' Negotiationswere now transferred London where Juan de Francisco to Martin represented Guatemala. After he presented to the British a lengthymemorandumdetailing the Guatemalan view, the Foreign Office appointed Wyke to representit in the negotiations. Guatemala's specific to counter-proposal the British was that the latter pay up to ?60,757 instead of ? 25,000. Guatemala appeared ready to accept the rest of Great Britain's previous draft.32 The British Cabinet decided that a compromise figureof ? 50,000would be acceptableunder certainconditions. Agreementwas reached, details workedout, and the instrument signed in two weeks. The conventionrequired ratification within six months,but Guatemala did not ratify in that time. In the spring of 1864 Martin requested that Russell allow Guatemala an additional year to consider ratification. Russell refused, saying the treaty "falls to the ground" because of Guatemala's non-compliance with the time stipulation.33 Correspondence upon the matterfell offuntil May, 1866, when Martin
Russellto Newcastle, ForeignOffice, Sept. 14, 1861,FO 15/143, 167-168. ff. 30Russellto G. Mathew, ForeignOffice, Nov. 26, 1861,FO 15/143,if. 201-207. 31 Russellto Mathew, ForeignOffice, Dec. 15, 1862, FO 15/143, 275-277,contain if. theBritish proposal;P. de Ayeinena Mathew, to Guatemala, Feb. 10, 1862,FO 15/144A, ff.39-47, is the unfavorable Guatemalanreply. 32 Juan de FranciscoMartin, "Memorandum Convention on withGuatemalafor the of Construction the Road to the Atlantic," London,May 18, 1863,FO 15/144A, 58ff. 65; the Guatemalancounter-proposal, forwarded with the memorandum, found on is ff.89-91. 33Wyke to Russell,Foreign Office, Aug. 6, 1863, FO 15/144A,if. 137-138, gives noticeof the signing; the text is in ibid., if. 143-156.
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informedthe Foreign Office that Guatemala had at last ratifiedthe convention of 1863. He asked that Great Britain now ratify it. The new British Ministry'sview of the Guatemala treaty was quite distinctfrom that of the Palmerston Cabinet of 1863. Though restrictivein its inthe earlier ministryhad shown a desire to discharge the terpretation, obligationsassumed under the treaty. Under Lord Clarendon and later in under Lord Stanley (who came to office the summerof 1866) the Foreign a demonstrated wish firstto reconsiderthose obligations,and then Office to dismissthem.34 Mexico was at that time publishing claims to Belize. This fact and others detractedfromthe apparent value of the Guatemalan treaty. At any rate, the Treasury agreed that the additional conventionwas not worth its price and should be dropped.35 The Colonial Officealso questioned the value of the treaty,but was concernedabout the continuance of the obligationunder Article 7 in the original treaty. In this regard Lord Carnarvon observedthat on the lapse of this second Conventionthe original agreementrevives, and that, if the matter proceeds further,the only question will be whethera fixed payment now of ?50,000 by installments, under or the conditions provided, is a more convenientarrangementthan a possible indefinite paymentof ? 72,500 at a later period. He did not press this observation, however.36 Thus advised, Stanley notified Martin on July 30, 1866, that the British Government would not ratifythe convention. His refusal was based on the "simple ground" that the convention's lapse had been caused by Guatemalan delay and that Great Britain had been thereby released.37 Within the monthMartin asked that a new agreement, identical with the lapsed convention, made.38 Demonstrating be ratherclearlythe change of Britishpositionfroman inclinationto dischargethe treatyto a desire that it be dismissed, Stanley asked in reply if "it would not be better to abandon the road project by mutual consent." If Guatemala did not it agree to thus end the matter, was incumbent her "to suggesta method on of proceeding" which would be at once economical,equitably shared, and commerciallyprofitable. In the course of his note, Stanley made the explicit admissionthat the question remained open.39 Martin grasped the opportunity continuenegotiation, to but vigorously denied the basic change of conditionsclaimed by Stanley.40 In December, 1866, he opened a climactic exchange of notes, painting in minute detail the legal consequencesof non-fulfillment Article 7. Again he brought of
Lord Clarendon to Treasury, Foreign Office, May 18, 1866, FO 15/145, if. 124-130. Treasury to Clarendon, London, June 13, 1866; FO 15/145, ff. 140-141. 36 F. Rogers to Sir E. Hammond, London, July 19, 1866, FO 15/145, ff. 158-161. 37 Lord Stanley to Francisco Martin, Foreign Office, July 30, 1866, FO 15/145, fE. 162-165. 38 Francisco Martin to Stanley, Paris, Aug. 14, 1866, FO 15/145, ff. 166-169. 39 Stanley to Francisco Martin, Foreign Office, Aug. 29, 1866, FO 15/145, ff. 174-179. 40 Francisco Martin to Stanley, Paris, Sept. 13, 1866, FO 15/145, ff. 180-185.
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forward the Guatemalan view that this article was the sine qua non of Guatemala's acceptance of the rest of the treaty. It was agreed to, in all its vagueness, as a friendly act by which to aid Great Britain in its with the United States. Thus Article 7 was "a real compensadifficulties tion in decorous form" for Guatemalan rights in Belize.41 Stanley categoricallydenied this: Her Majesty's Governmentnever admitted the existence of any such territorialrights on the part of the Republic of Guatemala. They conceived that it would be for the advantage of both Parties, of Guatemala no less than for Great Britain with a view to prevent on disputes and encroachment eitherside, that the boundary between should be defined; but in the view of Her the respectiveterritories Majesty's Governmentthat boundary had always existed since the expulsion of Spain, thoughit had never been defined. Her Majesty's Governmentdid not accept, and never would have accepted, the of definition the boundary as involvingany cession,or as conferring any title, on the part of Guatemala; nor is there a syllable in the conventionwhich can lead to such a conclusion.42 Continuing,he made his oft-citedassertion that Great Britain was released fromthe obligationsof Article 7 because of Guatemalan failure to ratify the additional convention: maintain,that by signing the Convention Her Majesty's Government ready to ratifyit in 1864, at the time appointedfor of 1863 and beingthat purpose, they have done all that was incumbentupon them to of the fulfill engagement the Conventionof 1859, and are now released fromthe obligationsof the latter Conventionby the conduct of the itself.43 Guatemalan government Yet, after a furtherlecture on the binding nature and finalityof the time stipulation,Stanley indicated unwillingnessto rest his case entirely upon it. He admittedthat release fromArticle 7 based on the limitations of the six-monthratificationperiod "may perhaps be considered as in some measurearising out of a question of form." The role of Parliament, he said, placed other obstacles of "a weightyand substantialnature" in the way of any new convention. "The engagementof the Conventionof would not absolutely pay, but 1863 was that Her Majesty's Government to recommend Parliament to enable them to pay Fifty Thousand Pounds of to the Government Guatemala in the mannerthereinprovided." Since was dependent on appropriationsby Parliament, it was the Government useless to sign such a conventionunless there was hope of that body's approval. In 1863 there was such hope. In 1864, when Martin asked the likelihood of an apRussell for a year's extension for ratification, propriation was doubtful. "It is quite certain in the opinion of Her that the House of Commons would not sanction Majesty's Government it in 1867."44 In rebuttal, Martin saw a "perfect discordance" between Stanley's
ff. FranciscoMartinto Stanley, Paris, Dec. 21, 1866,FO 15/145, 304-308. if. Jan. 3, 1867,FO 15/146, 1-9. ForeignOffice, Stanleyto FranciscoMartin, 44 Ibid. 43Ibid.
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last two notes-those of August 29, 1866, and January 3, 1867. The first indicatedthat the questionremainedopen for discussion,the second stated unequivocallythat it was closed.45 This British decisionto close the question must have been the cause of a worriedForeign Office memorandum by Sir Edward Hammond,the PermanentUnder Secretary of State: I do not very much like this Guatemala road business. If we absolutely set aside the 7th Article of the Conventionof 1859, the Guatemala government may contend,and I thinkwith justice,that the whole conventionfalls with it.46 The intentionto close the matter was confirmed, however,by Stanley's laconic annotationthat "Mr. Hammond's profoundconcernsimply delays a decision; but I do not see that we have anythingelse to do." During 1867 Guatemala tried on several occasions to reopen the matter, refusal. After a lapse of more than a year and but met with consistent a half, Martin tried again in 1869. The Government Guatemala had of by that time contracteda loan in England which would guarantee their share of the road project.47 Wyke, who was now at a European post, was notifiedof the new effort. He wrote the Foreign Officeadvising, whollyin termsof expediency,that the matterremain closed. Wyke believed Stanley's dispatch of August 29, 1866, had weakened an otherwise impregnableBritish position. His commentary was in cynical contrastto the statementsrecorded by him during the 1859-1863 negotiations. He now said: The reason the Guatemala government left the Wyke & Martin Conventionso long unratified, was because they had not ? 50,000 at their commandwith which to pay their share of the Contract,which stipulated that that sum should be paid by themat the same time we paid ours. This I foresaw all along would be the case, & therefore there never was any real probabilityof our being called upon to pay such a sum.48 The Foreign Office saw the question in a similar light and informedthe Guatemalan representativein November,1869, that there was not the "smallest expectation" that the question would be reopened.49 Thus, as the 1860's ended, the British Government consideredthe question of the Guatemalan cart-roadterminated. The Guatemalans seemed as determined, they ever had been, to gain compensation the boundary for agreed to in 1859. To themthe questionremainedverymuchin contention. The ensuing years, and particularlythe 1880's, 1930's, and 1940's, were to see more correspondenceand disputation,but the general outline of the controversy was drawn by 1869. The negotiationsof that firstdecade mustbe considered any meaningful in interpretation the Treaty of 1859. of
Francisco Martin to Stanley, Paris, Jan. 26, 1867, FO 15/146, ff. 10-11. Hammond, Memorandum,Foreign Office, Sept. 26, 1866, FO 15/145, if. 207-209. 47 Francisco Martin to Clarendon, Paris, Sept. 24, 1869, FO 15/146, ff.243-252; see also E. Corbett to Clarendon, Guatemala, May 31, 1869, Tbid., if. 233-236, which furnishes insight on this situation. 48 Wyke to Bergne, Copenhagen, Sept. 20, 1869, FO 15/146, if. 239-241. 49 Clarendon to E. Palacios, Foreign Office, Nov. 15, 1869, FO 15/146, ff. 303-308.
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IV
Clear-cutinterpretation a treaty is frequentlyimpossible. Consider of in this connectionsome of the complicatingfactors in the negotiationof the treatyof 1859. The British negotiatordelayed informing governhis ment of the full meaning of his private, unwrittenunderstandingwith the Guatemalan representative. Acting thus in ignorance, the British Government Article 7 in a way highlyoffensive Guatemala. to interpreted A Britishrepresentative thenwithheld this interpretation fromGuatemalan ears until the treatypassed an important political test. Even then certain elementsof the Guatemalan Government, fearing repudiation of both the treatyand themselves, kept the unfavorableBritishinterpretation closely a guarded secret. In this they were encouragedby the British negotiator.50 Nevertheless, certainlegal questionscan be answeredfromthe documents which have been examined. It is legally possible that if Article 7 was vague and mentionedno cession,it was so writtensimply because of the stricturesof the Clayton-BulwerTreaty on Great Britain.5' Statements made by the British and Guatemalannegotiators and expressedin Foreign Office memorandasupport this view. The fact, then, that a cession was notmentioned thetextof the treatyis not proofthatnone was understood in to take place. Very much to the point was a British Minister's remark, in reference this treaty,that if a state were induced to surrendera porto tion of territory Great Britain, it could just as easily be induced to to declare that the territory had belonged to Great Britain prior to 1850.52 If Article 7 is viewed as compensationfor the rest of the treaty,two axioms of interpretation may be said to support the British desire to restrictthat compensation: first,"if . . . the meaning of a stipulation is ambiguous,that meaning is to be preferredwhich is less onerous for the party assumingan obligation"; 53 or, conversely, "if two meaningsof a stipulation are admissible,that which is least to the advantage of the party for whose benefitthe stipulationwas inserted in the treaty should "54 be preferred. According to these, British opinion as to the extent of the liabilitywhich she incurredwould outweighthat of Guatemala. In the question of cession, however,there is a more stronglyworded rule which in the light of the documentsexamined above unquestionably supports Guatemala: If two meaningsof a stipulationare admissibleaccording to the text of a treaty,such meaning is to prevail as the party proposing the stipulationknew at the timeto be the meaningpreferredby the party accepting it.55
See above, pp. 286-287. "'Previous treaties between the same parties, and treaties between one of the parties and third parties, may be referred to for the purpose of clearing up the meaning of a stipulation," according to L. Oppenheim, International Law, A Treatise (H. Lauterpaeht, editor, 7th ed., London, 1953), Vol. I, pp. 859-860. 52 E. Cardwell to Stanley, London, Jan. 30, 1866, FO 15/145, if. 24-8. 53 1 Oppenheim 859. 54 Ibid. 860.
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55

Ibid.

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in in of Wyke's statements his acknowledgment instructions, his dispatches meiioof April 30, 1859, and February 7, 1860, and in his Foreign Office the randa of March 28 and 29, 1863, show clearly that throughout negotiation of these agreementshe knew the Guatemalans believed Article 7, for whichhe had proposed,was compensation the cession of theirrightsto the area betweenthe Sibiunand the SarstuinRivers. By this correspondwas certainlymade aware of the cession inence the British Government volved,if not of the amountof compensation. Perhaps more significant the extentto which the British Government of draftedfor the Foreign recognizeda disguised cessionwas a memorandum Office Wyke shortlyafter the signing of the supplementalconvention. by It was a defense of the agreementsof 1859 and 1863 to be used by the 's Government representativein the House of Commons if there were debate upon the necessaryappropriation. The debate did not take place, but the memorandum showsthe groundswhichthe Cabinet would probably have takenin a Parliamentarydefenseof the treaty. In the CentralAmerican rivalry with the United States, wrote Wyke, our really weak point was . . . the retainingpossession in Belize of territoryto which we had no positive right. Under these circumstances it became necessaryto obtain such rightsfromthe Government of Guatemala, which however refused to grant it without some indemnification the concessiondemanded of them. for He maintained that the road, if completed,would be helpful to Belize, but that if it were not finished, Great Britain, accordingto the convention, would have to spend only a fractionof the ? 50,000 appropriation. By means of such an outlay we not only avoid all future discussions and differences with the United States on this subject, but we at the same time secure undisputed claim to the whole of the Territoryin Belize down to the River Sarstun, thus enabling us to converta mere "wood cutting Establishment" which it formerlywas, into a bona fide Colony and Dependency of the British Crown.56 It was thus impliedthat the cessioninvolvedin Article 7 remainedinchoate until the Parliamentary appropriation-that is, the consideration-was granted. Later, in his 1869 letter, Wyke may have argued that Guatemalan conduct had perfectedBritish title, but he did not repudiate the idea of cession. Earlier Cabinet memorandaalso indicate that the article was viewed as compensation rights for concededto GreatBritain by Guatemala. The Duke of Newcastle,so criticalof Article7, opposed the treatyas being "not worth the price" of that article. On the other hand, Palmerston,who did not to disapprovethe treaty,also viewed Article 7 as the compensation Guatemala for boundary rights obtained by Great Britain. Consequently,he believed those rightscould not be retained if Great Britain failed to contributeto the road. Gladstone felt simplythat Parliament,as far as the
56 "Memorandum by Sir Charles Wyke for Mr. Layard 's use should any debate take place in the House of Commons relative to the grant of ? 50,000 demanded for the constructionof the Guatemala Road," Foreign Office, n.d., FO 15/144A, if. 157-161.

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Cabinet had the power to bind it, had been bound to pay. Consequentlya concrete statementof British liability was required. This need of the Treasury apparentlyfurnishedthe impetus which led to the Convention of 1863. was obviouslyan "authentic interpretation"of Article That convention under contracted 7. The Britishclaim it releasedthemfromthe obligations it Article7, although was neverratified-or ratherbecauseit was not ratified properlyby Guatemala. Their basic argumenton this pointhas apparently contain changed little since 1869. Yet the records of the Foreign Office that this very of by repeated admissions, members the British Government, was legally dubious. Even before Stanley cut offfurtherdiscontention had opined that, cussionof the matter, Lord Carnarvon,Colonial Secretary, revives." Clearly, lapsed, "the original agreement if the secondconvention he saw no legal release. For that matter,in the letterof August 29, 1866, Stanley betrayed his own position by admittingthat "the question rethe mained" and by offering diplomaticinitiativeto Guatemala. point of view the British very much desired the treaty From another of 1859, except Article 7, to remain in force. As noted above, an experienced hand at the Foreign Officeexpressed fear that if Stanley "absolutely set aside'" Article 7, the entire treaty would be abrogated. Then what kind of legal titlewould Great Britain possess? Stanley's reply,that therewas nothingelse to do, in no way denied that effect. In the 1870's there was sporadic activity on the road question. As might be expected, the memoranda and dispatches of this later decade contain many inaccuracies regarding the affair. But to the Foreign in Office the 1870's, just as in the 1860's, Article 7 of the treaty of 1859 appeared as compensation. In 1877 a memorandumprepared for the Foreign Secretary stated that Article 7 an was admittedby Her Majesty's Government affording indemnias ficationon their part for the occupation by England of a portion of Belize which belonged to Guatemala, and to the occupation of which raised objectionsafterthe failure by us the United States Government of the Clayton-Bulwer Treaty.57 The following whichpointed out the difficulties year anothermemorandum, of reopening the question,added: It is only rightto say that thereappears to be a good deal of foundation for the Guatemalanclaim.58 Then in 1880 came the missionof the Guatemalan,Crisanto Medina, who made one of the last serious attemptsto broach the question in the nineteenth century. In closing the door on Medina, Lord Granville did not fromStanley's final position. depart significantly
57 "Memorandum Oct. 26, 1877,FO 15/ for the use of Lord Derby," ForeignOffice, 207, ff.37-38. May 10, 1878, to in 58"Memorandum reference GeneralNegrete," Foreign Office, PO 15/207,ff.37-38.

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Stanley had not been satisfiedwith a formalisticbasis for British release fromArticle7, thatis, the requirement ratification the additional of of conventionwithin six months. Thus his argument held that the need for Parliamentaryappropriationwas an additional reason for the British Government's inabilityto act, and that Guatemalan delay had made it impossible to obtain that appropriation. This does not appear to be actually reason. Rather,it appears to be the sole justification Great a different for Britain holding rigorouslyto the six-month requirement. But what kind of justification it? is Suppose Guatemala had ratifiedwithin the six months,and that the British Parliament had then failed to make the necessary appropriation. According to Stanley's argument, which emphasized that the British Government merely contractedto ask Parliament for the appropriation, Great Britain's internationalobligations toward Guatemala would have been fulfilled. This hardly seems reasonable. If Great Britain had formallyrefused to pay the obvious compensationprovided for in the treaty, any cession therein must have failed. If it is insisted that the mere request for an appropriation constituted compensation,the fact remainsthat the British Government not ask for a vote on the matter. did It seemsonly just that if Great Britain held Guatemala to a strictaccounting on the six-month clause, Great Britain mightin turn be held to strict in for rights accountability a matterso importantas actual compensation tendered. The passage of nearly a centuryhas served to obscurethe presenteffect of the Anglo-GuatemalanTreaty of 1859. But some things about it are not obscure. Evidence provided by its authors and early interpreters indicates that the treaty involved cession of the area between the Sibuin and the Sarstuin,for which its seventh article provided compensation. Due perhaps to mitigating circumstances,the compensationwas never paid. In her legal contentions, Great Britain has relied heavily on the assertionthat this treatywas a simple boundary definition which did not involve cession. Such being the case, perhaps Guatemala should reconsider her refusal to accept a purely legal decision of the Belize dispute. Perhaps, too, British contentions the futureshould abide by Lord Rusin 59 sell's 1865 admonition: "The less said about this treatythe better."
59 Russell, May, 1865, annotation of an informationcopy of a note from P. Campbell Scarlett (British Minister to Mexico) to J. F. Ramirez (Mexican Minister of Foreign Affairs), Mexico, March 20, 1865, FO 15/144A, if. 287-292. Russell's comment, f. 289, disapproves Searlett's interpretationof the 1859 treaty as extending the boundary of British Honduras from the Sibuinto the Sarstiun.

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