construction attributed to them if the premise upon which the proposition rests were true that their text alone afforded the measure of deciding the question of power conferred as to the boundary issue. But the question of power is not to be solved alone by the article of the treaty thus relied upon by Panama, since on the face of the record it is apparent that it must be solved by the text of a different treaty which when it is considered renders it impossible to ascribe the meaning relied upon to the provisions referred to. A brief recurrence to the history of the case previously made will make this clear since that history shows beyond the possibility of question that the boundary dispute was first provided for by the treaty of 1880 and contained a limitation or direction based upon the treaty of 1825 between Colombia (Panama) and Central America (Costa Rica) which causes it to be impossible to suppose that the extensive power now claimed was conferred concerning the boundary dispute. This becomes clearer, if it were possible to add to its clearness, when the statement is recalled that when the treaty of 1886 was drawn in express terms it reserved the powers granted by the previous treaty of 1880 and declared that the powers created under the new treaty were additional to those conferred by the former, and to make assurance doubly sure, there was added to the treaty of 1886 a clause saving from repeal the treaty of 1880.

Even upon the hypothesis that the treaty of 1880 provided both for the boundary dispute and for the territorial claim up to Cape Gracias á Dios which embraced on the Atlantic side the exterior boundaries subsequently stated in the treaty of 1886, such assumption would be without consequence because it could not possibly be assumed that the inclusion. of the larger and wholly distinct territorial claim was intended to destroy the express limitations concerning the boundary claim which the treaty embodied by making reference as it did on that subject to the articles of the treaty of 1825. And, indeed, this would be the result if it were additionally supposed for the sake of argument that the treaty of 1880 and the treaty of 1886 became incorporated into one and the same instrument by the effect of the adoption of the treaty of 1886, since it would be obvious under the terms of the treaty of 1886 as thus construed that it was the clear intention of that treaty to preserve unimpaired and unchanged the powers, duties and limitations previously created and therefore to impose the duty of enforcing the two harmoniously so that the duties under both might be performed.

While these considerations dispose of all the principal arguments ad

vanced to maintain the contention that the text of the treaty of 1886 sustains the extreme power asserted and I might well pass from the subject, nevertheless before doing so in order not to seem to overlook suggestions made or necessarily arising, I proceed to notice some considerations concerning some words in the text which have been deemed to be of importance but which I have not previously noticed in order to avoid breaking the continuity of the argument. The clause in the third article of the treaty of 1886 saving the rights of third parties, it is suggested by reasoning whose import is not clearly discernible, lends some strength to the contention that the treaty conferred the extreme authority claimed. But it is obvious that this clause instead of removing a limit, imposed one, since its plain terms evidence that it was intended in any and all events but to restrict the operation of the award so as not to affect third parties—a restriction presumably inserted because at the time the treaty was drawn the United States was insisting that rights which it asserted might otherwise without such restriction be affected, and, moreover, because the line embraced in the shore claim of Panama, as I have seen, extended beyond the territory of Costa Rica up to Cape Gracias a Dios. And the contention in another aspect, manifests a confusion like that which I have previously pointed out since it would be singular, indeed, to say that a limitation which was inserted for the purpose of protecting those who were not heard had for its object the extension of the scope of the arbitration so as to cause it to embrace as to the parties to the convention the absolute right on the part of the arbitrator to condemn them without a hearing, which, of course, would be the result if the provision had the extreme construction which it is now insisted belongs to it.

From these considerations the following general conclusions are established: (1) That the controversy as to boundary between the parties which had existed for so many years was limited to a boundary line asserted by one party and to that asserted by the other, the territory in dispute between them, therefore, being that embraced between the lines of their respectively asserted boundaries. (2) That the previous treaties of 1880 and 1886 by which the boundary dispute thus stated was submitted to arbitration, instead of going beyond the general principles of law which otherwise would have applied and conferring an extreme power to make an award wholly without reference to the dispute or the disputed territory, by their very terms confined the award to the matter in dispute and the disputed territory. (3) That as the line of boundary fixed by the previous award from Punta Mona to the Cordilleras was not within

the matter in dispute or within the disputed territory, it results that such award was beyond the submission and that the arbitrator was without power to make it, and it must therefore be set aside and treated as nonexisting. The only question then is, What in other respects is the duty arising under the present arbitration from that situation?

As by the terms of the present treaty the previous award was not set aside as a whole, and the power was only given to correct it in so far as it might be found to be without the authority conferred, the consequence is that all the results necessarily implied by the selection of the mountain line from Punta Mona along the stated counterfort, which can be upheld consistently with the previous treaty, must be sustained although the mountain line itself be void for want of authority to make it. While not in express terms urged, it may be implied from the argument that the contention is that, the mountain line being out of the way for illegality, there would remain as a part of the previous award a river line composed of the Sixaola-Tarire Rivers since the award declared that the mountain line would bound on the north the valley of such rivers and hence they may constitute a boundary line within the award previously made. To dispose of this suggestion it is only necessary to point out the fallacy of the premise upon which it must rest since that premise virtually is that the previous selection was of a line formed by the Sixaola-Tarire Rivers instead of the counterfort or range of mountains. But this is so obviously refuted by the record as to need only a few words of statement to demonstrate its error. In the first place the line previously fixed did not even commence with the mouth of a river, but began at Punta Mona, and in express terms was declared to proceed along the counterfort. It is true, as is suggested, that it was said that the line thus made bounded on the north the valley of the Sixaola and Tarire, but this declaration did not convert the mountain boundary into a river one. In fact such a view of the previous award could only be taken as the result of wholly inadmissible surmises and conjectures. It is certain, as indicated by the letter of Monsieur Delcassé previously quoted, that there was not a complete knowledge of the geography of the country when the previous award was made. And it is also certain that under the previous arbitration there were present maps showing a range of mountains from Punta Mona to the Cordilleras ostensibly of such a permanent and dominant character as to cause it, if existing, to constitute a natural frontier dividing for all practical purposes the country on the one side from that lying on the other. When this is borne in mind a reason which may have given rise

to the selection of the mountains is not far to presume since the natural frontier which their presence would cause and the benefit to arise from the establishment of such frontier may well have led the mind to consider that subject from the point of view of statesmanship alone and therefore have unwittingly concentrated attention exclusively on the advantages of such a boundary and thus have diverted attention from the consideration of the limits which inhered in the submission. On the contrary the suggestion relied upon would necessarily compel it to be assumed that although a river boundary was selected, a mountain boundary was for some unaccountable and undisclosed reason named.

As it is conceded by both parties that under this treaty there is the power and duty to substitute for the line set aside, a line within the scope of the authority granted under the previous treaty "most in accordance with the correct interpretation and true intention" of the former award, I come to that subject. As it was impossible to make the previous selection of a mountain line without rejecting both the claim of Colombia (Panama) to the shore up to Cape Gracias a Dios and also without adversely disposing of the claim of Costa Rica to the boundary of the Chiriquí River, both of those express or implied awards remain unaffected by the fact that it is now held that the mountain boundary line was void. And by the same reasoning it follows that the initial point of the boundary which is to replace the rejected one must and can only be the mouth of the first river below Punta Mona, the Sixaola, since there is physically no other river mouth to respond to the claim made under the circumstances stated. Besides, this result is inevitable because the mouth of such river, under the facts stated, is indubitably the initial point on the Atlantic of the river boundary contemplated by the parties from the beginning, sustained by all the facts to which I have referred as to negotiations, declarations and settlements and the exertion of governmental power by the two countries consequent thereon. It is true it results from the previous statement that the river which was relied upon by Colombia (Panama) as the boundary was designated by various names because, undoubtedly, of the want of accurate geographical knowledge which prevailed. But whatever may have been the Babel of names, there can be no doubt that they all came to be used to designate virtually one and the same river emptying into the Atlantic at about one and the same place and having virtually one and the same course or flow from the source near the mountains to the mouth in the Atlantic. Nothing could serve to make this clearer than does the statement which was

made by the Colombian Congress in 1856 which, while it described the river as the Doraces, fixed its mouth as the one first below Punta Mona, and the further illustration which is afforded by the facts previously stated concerning the settlements at the mouth of the Sixaola by Colombia and the claim of authority which the government of that country asserted thereunder. And this serves to make clear what river was referred to by the use of the name Culebras, since the President of the State of Panama had in 1870 declared that that river was the same as the Doraces. Moreover, when the situation is rightly appreciated these facts readily explain why in the resolutions of the Colombian Senate which immediately preceded the treaty of 1880 the river upon which Colombia relied as the boundary was described as the Culebras and not as the Sixaola, which latter river was then known to be the river having its mouth the first below Punta Mona, and therefore was the same as the Doraces or Culebras. But the claim of Colombia as first formulated in 1836 in the organization of the territory known as Bocas del Toro, called the river whose mouth was fixed as the boundary, the Culebras. And therefore it is quite natural to assume that in stating the claim for the purposes of the resolutions and the controversy then pending, desirous of losing nothing of the original right and of retaining everything that had accrued under it by way of negotiations, admissions and settlements, the original description was adhered to and reiterated—a conclusion whose cogency is greatly reinforced when it is considered that years before Señor Madrid, the Colombian publicist, had recognized that the river which Colombia referred to as the Culebras was the river which Costa Rica referred to as the Sixaola. To adopt views contrary to those just stated would necessarily lead to the conclusion that because in formulating its claim Colombia in order to preserve it in its integrity had resorted to the definition of that claim as originally stated, it had thereby abandoned its right, or, what is equivalent thereto, had by resorting to the most efficient way of stating that claim acquired a nonexisting, unheard of or imaginary one.

The only remaining question then is, how is the boundary line to proceed from the mouth of the Sixaola River to the Cordilleras until it joins the line terminating "beyond Cerro Pando"?

On the one hand it is claimed that such line should follow the thalweg of the Sixaola River to the point where it joins with a river called the Yorquin, then follow that stream in a southerly direction to its source in or near the mountains and thence to the point "beyond Cerro Pando."