CHAPTER X.

ADVERSE HOLDING-DUTCH BOUNDARY.

There is no more important branch of this investigation than the examination of the territorial claim of the Dutch authorities during the century and a half of their possession of the Colony of Essequibo.

By the Treaty of Munster the title of the Netherlands was confirmed to the possessions which they had carved out of the territory of Spain, and the two European States were thus brought into territorial contact. The Treaty had failed to state by geographical points or lines the Dutch boundary, and a temptation was thus offered to the manufacture of pretensions and claims, which few States situated as the Netherlands then were have found themselves able to resist, and to which the latter would no doubt have yielded had their new charter in 1764 not restricted them in terms to the Essequibo and Pomeroon.

The situation was somewhat exceptional, by reason of the fact that Essequibo was governed not by officers reporting directly to the national executive, but by a private trading corporation, to which vague powers of government had been delegated. These powers, as has been explained, included the ordinary manage. ment of the foreign relations of the colony as they arose in and near the colony itself. During the whole period of one hundred and sixty-six years from the Treaty of Munster to the Treaty of London, by which the "Establishment of Essequibo" was ceded to Great Britain, but three occasions are recorded in the evidence where the Dutch West India Company called upon the Government of the Netherlands to intervene, and upon these occasions the local authorities of the colony had already taken international action. During all the period, the Company, as far as the evidence shows, were, with these exceptions, left by the States-General to

manage their affairs as they pleased. Even on the three occasions referred to, when representations were made to the Spanish Government, the States-General took the facts and the law as the Company presented them, and confined their action to directing the Dutch Ambassador at Madrid to give formal expression to the request or remonstrance which the Company set up.

In view of these facts, the question of importance is not what the States-General thought and claimed, but what that branch of the Government of the Netherlands thought and claimed, in which resided the powers which the States General had set apart and delegated for the purpose of managing and controlling the colony. Owing to their deputed powers of quasi-sovereignty, the Company's claims and the Company's admissions were the claims and admissions of the State itself.

The importance of this inquiry in a boundary dispute is obvious. The question is, What are the rights of the parties to the dispute? A court cannot take their respective pretensions as evidence of their rights, but it can and must take the limits of their pretensions as evidence of that to which they have no right. When one State claims a certain point as marking the boundary between it and another State, it admits the title of the other State to all beyond the point claimed, and it is bound by the admission. In making a claim of right, what it does not claim as of right it concedes as of right.

Next in importance to the actual claims are the grounds upon which the claims are advanced.

As has been already shown, the Treaty of Munster was a treaty between Spain and the Netherlands, and the question is not what interpretation Great Britain, who was not a party to it, puts upon the Treaty, but what was the understanding of it by the parties themselves. The British case is at pains to quote Major Scott (p. 28), the commander of the force that captured Pomeroon and Essequibo in 1665, as saying that by his conquest English possessions were extended from Cayenne to the Orinoco. Apart

from Scott's tendency to braggadocio, he is a discredited authority; but the objection to his testimony lies deeper. The question is not what a British officer thought should have been the Dutch claim, but what was the Dutch claim. For this we must look to the Dutch themselves, and we must look to what they said and did in reference to it. We must look to their acts as well as to their words, and not only to the words found in their formal international communications, but still more to the words of their unrestrained and confidential intercourse and correspondence, when they settled down for that long period of a century and a half with the Spanish as their neighbors on a common frontier. This correspondence we possess, and it is in evidence in this case. It is a correspondence between the directing head of this quasisovereign company in Holland and its directing head in the colony. It was carried on with that unrestricted freedom with which men write when possessed of the firm belief that their letters will never be seen except by those to whom they are addressed. It lays before us, as in an open book, the thoughts, purposes, claims and reasonings of the sovereigns of Essequibo. After reading it we know exactly where they stood on the question of boundary.

The first position taken by the Dutch West India Company on the question of American titles is perhaps the most important. It is contained in the "Deductie " formally presented by the Company to the States General November 5, 1660 (V. C., vol. iii, p. 367), and already referred to.

Their words are:

the Dutch nation must instead be preferred, being considered the same as in earlier times, namely, vassals and subjects of the King of Spain, first discoverer and founder of this new American world, who since, at the conclusion of the peace, has made over to the United Netherland Provinces all his right and title to such countries and domains as by them in course of time had been conquered in Europe, America, etc."

Two vital points are established by this document. First, it was a solemn recognition by the West India Company of the

Spanish title to the King's possessions in America by discovery and "founding" or occupation. Secondly, it was a solemn recognition that what the Netherlands had taken by the Treaty of Munster, and what the King of Spain had made over, was "all his right and title" to such territories as the Dutch had conquered in America. It was a declaration that the Treaty of Munster was, not as the British Case contends, a mere mutual acknowledgement of title, but that it was an actual cession to the Netherlands of the title of the King of Spain. It was a declaration that the West India Company were his grantees, and it was an absolute and unqualified admission that the title to all the territory not so ceded was still in the Spanish Crown. It even went so far in its reliance upon the prior Spanish title as to make a "far-fetched " appeal to it as a ground of priority over the English in North America, in that the Dutch at the time of the first discovery and occupation were themselves the vassals of the King of Spain. It established the fact that the Dutch could not extend their possessions beyond those ceded by the Treaty of Munster, except by encroachment upon Spanish territory, and that, therefore, the only claim which they could ever raise to such territorial extensions was a claim of adverse possession.

In the face of this document there is no escape from the position that the Netherlands, as represented by the Dutch West India Company, could not acquire one foot of territory, and that their grantees in this controversy could not be entitled to one foot of territory, beyond that which the Dutch acquired in 1648, except in accordance with the rules governing adverse holding.

This declaration alone finally disposes of the ultimate British contention of a terra nullius, to which any possession prior to the Treaty of Arbitration, however recent, may give title.

In 1674, as already stated, the old Dutch West India Company came to an end and a new Company was created, with a new charter, by which the operations of the West India Company, on the mainland of South America, were confined to two

points, namely, Essequibo and Pomeroon. Beyond these two points the Company possessed no authority under the charter.

The charter of 1674 (B. C. I, 173) therefore, shows conclusively that any territorial claim made by or through the Dutch West India Company-and, as we have seen, there could be no other Dutch claim-by reason of operations wholly or in part subsequent to 1674 must be confined to the Essequibo and the Pomeroon, because from this date down to the final termination of its existence, in 1791, the West India Company had, under the terms. of the act creating it, no power to operate on the mainland of South America beyond these points. It would, therefore, make no difference what settlements they created, or what control they exercised, other than at these points; any such settlement or control was ultra vires.

Starting with these two formal declarations—one of the Dutch Government, the other of the Dutch Company; one defining the points at which alone the charter was operative, the other recognizing the prior Spanish title by discovery and occupation, we find for a hundred years after the Treaty of Munster not a whisper of territorial extension, much less of territorial claim, outside of the chartered limits. Neither in the mind of the Company at home nor in that of the Commandeur in the colony can any trace of such a proposition be discovered.

On the contrary, upon the only occasion during this period when the question arose, the Dutch Governor admitted the territorial title of Spain and her right to exercise territorial dominion in the now disputed territory, and the Company passed over the report of his admission without comment. This was the occasion. of the prohibition of the Dutch horse trade in the Cuyuni, one of the most important episodes in the history of the Guiana boundary question.

Horses and other live stock were then, as for more than a century after, the principal product of the colony of Spanish Guayana, and its principal article of trade. The horse trade with the