B. THE FACTS

94. In the light of the legal considerations set out above, the facts must now be looked at from two points of view: the evidence of British possession of the area of British Honduras (and of Belize Government administration of the whole of the territory of Belize) and the absence of any evidence of competing attempts at possession or acts of government by Guatemala.

1. British and Belize presence in the area since long before 1850

95. The presence of British settlers in the area of British Honduras north of the Sibun prior to 1850 has not really been brought into question. What matters more particularly is the extent and timing of British settlement between the Sibun and the Sarstoon prior to 1850 , that is to say, in the part of the country that lay outside the area covered by the Spanish grants. In respect of that part, it cannot be said that the British were there by virtue of Spanish licence.

96. By 1799-1800 Superintendent Barrow reported that Deep River, well to the south of the Sibun, had been occupied by the British.

97. In 1802 he reported that settlers had by then occupied the south side of the River Sibun as well as other places "further to the southward, as Stand Creek, Deep River etc.".

98. Also in 1802 the Honduras Merchants Committee reported that the southern
advance of settlers had brought them nearly in sight of the Spanish fortifications of Omoa - a place so far to the south of the Sarstoon as to be in the territory of what is today Honduras.

99. In 1806 the settlers were again reported as having reached Deep River and in the same year the settlers sought protection for the mahogany cutters in the southern rivers, namely, Deep River, Golden Stream and Rio Grande. At that time, further north, but still south of the Sibun, 38 settlers were said to be living at Mullins River. South of that river was Stann Creek, which was the usual watering place for ships of the British fleet. It was occupied by woodcutters who shipped considerable quantities of wood from there.

100. In 1814 the settlers addressed a Memorial to the Prince Regent stating that woodcutting had advanced to the Moho River and asking for this river to be recognised as the southern boundary of the settlement - a river only a little more than 15 nautical miles north of the Sarstoon. And this development was confirmed by Superintendent Arthur in 1816. As Humphreys pointed out this advance took place in territory that was "solely occupied by Indians and where the writ of Spain had never run". He also observed that these penetrations were not initially accompanied by agricultural settlement. A Colonial Office Memorandum of 20 January 1835 stated:

      "The distance from the north of the Sarstoon to which that river is actually occupied by the British Settlers cannot be very correctly ascertained . . . but it seems sufficiently certain that where it is not occupied by the British, it is not occupied at all."

101. On 17 June 1825, a leading merchant in Belize, Mr Marshall Bennett, wrote to Mr Horton at the Foreign Office the following letter, which is here reproduced in full:

      "Should His Majesty's Government deem it expedient to make any arrangements with the Government of Guatemala and Mexico in which the British Settlement of Honduras may become a subject of discussion, it is humbly submitted that the boundaries which for a series of twenty years or more have been uniformly considered by the successive Superintendents as the limits of the settlement and which it would be by no means inconvenient for the Government of Guatemala and Mexico to confirm should be the limits as marked down in the accompanying Chart viz.

The South Bank of the River Hondo from its source to its mouth and to Latitude 18º 9" Longitude 87º 17" being the Northern boundary.

From the source of the said River Hondo Southward intersecting the River Walliz or Belize at a distance of 70 miles from the coast in a right line say Longitude 89º 49" to the source of the River Gorda [the name by which the Sarstoon was previously known] that being the Western Boundary.

From the source of the River Gorda Latitude 15º 37" Longitude 89º 49" to its mouth and from thence to Latitude 16º 40" Longitude 87º 17" the same being the southern boundary and extending from said Latitude and Longitude in a right line due north to Latitude 18º 9" Longitude 87º 17" that being the Eastern Boundary."

This shows that from as early as 1805 the Sarstoon was considered as the southern boundary of the settlement and its source as its western boundary.

102. By 1825 Superintendent Codd felt able to mark on a map sent to London the southern boundary at the Sarstoon. In a letter to London, the terms of which merit extended quotation, he wrote:

     "I . . . now transmit to you a sketch (not of actual survey) though sufficiently accurate for any reference with the explanation it appears to me to require of that part of the continent now occupied by the British.

That part of the Territory coloured red represents the limits defined in the Treaty with Spain in the year 1783. That coloured yellow was annexed by additional articles to the same Treaty in 1786 and the whole respected by the Spaniards until the year 1798 when they made an attack upon the Settlement and were defeated. The Treaty being thus violated the British from this time maintained possession by force of arms and did no longer confine themselves to the prescribed boundaries but cut Mahogany in every direction on the portion coloured green from the River Sarstoon adjacent to the Gulf of Dulce as far to the Northwards as the South of the Rio Hondo which is represented to me as the North and South limits of this Settlement.

The Settlers at present occupy to the extent of 200 miles to the west from the sea shore, but the Country in that direction is unexplored.

The nearest Spanish town West of the Settlement is called Peten. It is an insignificant place and might be taken as the Western boundary or back line in any new Treaty or even a North and South line from the source of the river Belize till it bears west of the sources of the Rivers Rio Hondo and Sarstoon respectively which would comprise all the country occupied by the Settlers. For that part defined by the Treaties of 1783 and 1786 have long since been nearly exhausted and two thirds of the wood now cut comes from without such limits.

. . ."

103. In 1826, the first edition of The Honduras Almanack stated:
"The tract of territory now practically held by the British, occupies a line of sea coast of about 250 miles, from the Rio Hondo, the ultimate boundary of the Mexican Republic, to the river Sarstoon, on the commencement of the States of Guatimala (sic) . . .".

104. A particularly cogent item of evidence is the map enclosed with a letter of 29 April 1826 from Mr Cooke to Mr Secretary Canning headed "Sketch of that part of Yucatan at present possessed by the British. 1826." This shows the northern part of Belize shaded red to indicate the area covered by the 1783 Treaty, the central part coloured yellow to indicate the area covered by the Treaty of 1786 and the southern part coloured blue "held by force of arms since 1798, the last attack of the Spaniards". The southern part extends to the River Sarstoon. Also of significance, however, is the fact that a line is drawn due north from the River Sarstoon and is marked "Supposed line of the Western Boundary of the British Possession". Both these features confirm that by 1826 British possession extended as far south as the Sarstoon.

105. On 24 November 1827 Superintendent Codd, in reporting to Viscount Goderich on the boundary with Mexico, pointed out

     "that the English, having previously been obliged to return from the more Northern parts, had entrenched themselves as far Southward as the River Sarstoon and hold this area by truce as conquered from Spain, a right supported by the establishment of a Garrison".

106. On 1 December 1827 Superintendent Codd reported to Viscount Goderich a threatened visit by a Guatemalan cruiser to drive away British vessels found loading to the south of the River Sibun. In view of the considerable mahogany works and property held by the settlers to the South of that River, he requested protection from the Admiral Commanding at Jamaica. Nothing more is reported of this matter so presumably the Guatemalan action did not materialise.

107. On 26 June 1833 the Superintendent recommended to the Secretary of State the enactment of legislation for the better government of the Settlement. As regards the boundary, he stated: "The Treaties of 1783 and 1786 with Spain fix it at the River Sibun but the British have for very many years occupied the Country for near a hundred miles further to the Southward."

108. By 1834

     "at a meeting of judges and magistrates assembled in Council with the Superintendent, it was unanimously agreed that the area of which the settlers were in full and undisputed possession at the time of Central American Independence was bounded by the Hondo on the north, the Sarstoon on the south, and, in the west, by an imaginary line due north from Garbutt's Falls on the Belize to the Hondo and due south to the Sarstoon".

109. A very large map entitled "Mexican Yucatan", inscribed at the top "Map D, Copy annexed to Memorial, dated Colonial Office 25 October 1834", shows the whole area of British Honduras. No scale is given.

• It contains towards the top a number of manuscript annotations
  relative to the border between Mexico and British Honduras which need not be detailed here. Towards the south it marks clearly the River Sarstoon, on which is inscribed ""Sarstoon" The Southern British Boundary"".
• Slightly further to the west is the inscription "Supposed position of
  "Gracias á Dios Falls - Their true position to be determined by British and Guatemalan Commissioners".
• Towards the top right-hand corner (NE) there is the inscription:
  "All Keys and Islets which are situated between the Hondo and the Sarstoon are in active British occupation, and must be comprehended in the Treaties". A similar inscription appears towards the bottom right-hand corner (SE): "All Keys and Islets between the "Hondo" and the "Sarstoon" are in actual British occupation and must be comprehended within the Treaties of Boundaries".
• Towards the west there is the inscription: "These double red lines,
  inter-shaded yellow, mark the Western boundary of the British possessions to be determined by Treaty with Guatemala".

This map should be read in conjunction with the extract set out in the footnote below from a Colonial Office Memorandum of 20 January 1835 of 261 manuscript pages entitled "Memorandum on the tenour of the instructions proper to be given for negotiations for the relinquishment by Spain of her rights over the territory occupied by the British in the Bay of Honduras". The Instructions were possibly prepared for the use of Mr. Villiers in the approach that he made to Spain in April 1835. But for present purposes, the extracts are significant as showing the extent of British possessions in the area and the corresponding absence of any Guatemalan presence there.

110. A map dated September 1835 drawn by L. J. Hebert and printed at the Quarter Master General's Office, London, scale unstated, shows the whole area of British Honduras. This was evidently regarded as extending as far south as the River Sarstoon because it carries a straight line northwards from that river to pass through Garbutt's Falls marked as "Western Boundary". There is no indication of any Guatemalan settlement east of that boundary. The area to the west of it is marked "Unappropriated Territory" and carries the further inscription: "This is erroneously included by Arrowsmith in the Settlement of Belize; how much of it should be given to Central America and how much to Mexico seems to be unascertainable". The implication is clear: that the area to the east of the line was regarded as British.

111. From 1837 onwards the Superintendent began making Crown grants of land on the Deep River, the Moho and the Sarstoon, i.e. outside the old treaty limits. In 1839 he was instructed by the British Government that objections should no longer be made to the cultivation of the soil but that revenue from this source should be treated as a territorial revenue of the Crown.

112. In the meantime, the British Government in London took the view that the
boundaries of British Honduras extended from the Hondo in the north to the Sarstoon in the south and in the west lay along the line of longitude of Garbutt's Falls.

113. On 5 April 1835 Britain sent Spain a note requesting Spain formally to cede to Britain the area from the River Hondo in the north to the River Sarstoon in the south, extending northwards as far as Garbutt's Falls and the parallel running through them to the Hondo and the Sarstoon. The area included the "waters, islands and keys lying between the coast and 87º 40' w. long. together with the islands of Ruatan and Bonacca". Guatemala attaches importance to this note as indicating that, by requesting a cession of the territory concerned, Britain was impliedly acknowledging the continuance of Spanish sovereignty over the area.

114. This conclusion fails to take account of, and give appropriate weight to, the words actually used in the note. The latter points out that since the failed Spanish attempt of 1796 to subjugate Honduras "the country has been held under a different title"; that from that date "the visits of the Spanish Commissioners to the settlement and other formalities, as provided for by the Treaty (of 1786) have ceased. The Settlers have no longer confined themselves within their ancient boundaries"; that "it is no part of the intention of the British Government to admit that any of the neighbouring States can have a right to dispute" the British tenure; and that because Spain was then considering recognising the independence of the Spanish American States (which had by then already in fact been independent for fourteen years) and the transfer to them of its ancient sovereignty, and "in such transfer the territory of the British Settlements may be inaccurately defined, the moment had now arrived for placing the claim of the British Crown, as to this settlement, on a clear and distinct footing."

115. The note speaks not of Spain ceding its rights, but rather more circumspectly of Spain

      "ceding to Great Britain any right of Sovereignty which it may be conceived still rests, as regards the British Colony of Honduras, in the Crown of Spain . . .The actual sovereignty of Great Britain is an improbable matter of dispute - the Country has been long, and will, doubtless, long remain, under British Sway; it can answer the purpose of no country to question its tenure, but Spain is in a situation to accord an additional satisfaction in the possession of it."

The note reiterated that the districts were already in the occupation of the British settlers. The stated boundaries are "more extensive than those originally granted by Spain; but no more so than has been long tacitly acknowledged a British Settlement, or than is now and has been in the temporary or continual occupancy of the Colony." Moreover, the note adds, "there is as much courtesy in the demand, as there will be graciousness in frankly complying with it." This approach produced no written response, though orally the Spanish Foreign Minister indicated that he foresaw no difficulty with the request.

116. In 1843 there was published an Admiralty Chart, prepared in the period 1830-1839 by Commanders Owen and Barnett, entitled "West Indies from Cape Gracias á Dios to Belize". This shows the east coast of British Honduras as far south as the Gulf of Honduras and then east from there along the coast of what is now Honduras. The chart is significant because:

(a) it shows the River Sarstoon, marking on it the Rapids of Gracias á Dios and places the word "Boundary" just south of the river; and

(b) as an Admiralty Chart, it was a public document and could thus have been known to Guatemala. Guatemala has itself said that an Admiralty Chart "because of its origin must be considered an official map." No record has been found of any Guatemalan protest in respect of the representation on this 1843 chart of the boundary of British territory being the line of the River Sarstoon.

117. The area of British Honduras as it stood in 1850 is shown on a sketch map
included in a substantial memorandum by Sir Edward Hertslet, the Librarian of the Foreign Office, dated 20 February 1887, as extending from the Hondo in the north to the Sarstoon in the south and from the coast westwards as far as a line drawn northwards from Gracias á Dios Falls through Garbutt's Falls to the Blue Creek, a tributary of the Hondo. In wording reminiscent of Mr Cooke's map of 1826, the area between the Sibun and the Sarstoon is marked "Occupied by the British by force of arms since 1798, the last attack of the Spaniards."

118. There is in the preceding paragraphs ample evidence of effective British presence in the area stretching as far south as the River Sarstoon both before the independence of Guatemala from Spain in 1821 and during the period from 1821 to 1859. Additionally, the most striking confirmation of the situation thus evidenced is to be found in a Guatemalan document, namely, the letter addressed by Sr. de Aycinena, Minister of Foreign Affairs of Guatemala, to the Guatemalan House of Representatives on 4 January 1860 in connection with the proposal for the ratification by Guatemala of the 1859 Convention. The Minister used such phrases as the following:

• Referring to the territories beyond the limits of the Spanish grants of 1783 and 1786, he said:

     ". . . which have been abandoned by Spain and not occupied by us,
these areas continued to be occupied and exploited, before and after independence, beyond the limits established in the treaties with Spain. The English Government, considering this actual occupation as giving them legitimate title, defined the extent of the settlement as the river Sarstoon. We, in turn, after a few claims and protests, tacitly maintained the status quo without pursuing new initiatives . . ."

• Referring to the Clayton-Bulwer Treaty, the Minister said:

     ". . . it was agreed that the Settlement would not extend beyond its then current boundaries; that is, England's possession was recognized as legitimate title."

• Again, in relation to the same Treaty, the Minister said:

      ". . . [T]hey mutually agreed on the meaning of the 1850 Treaty [the Clayton-Bulwer Treaty] in relation to Belize. That is, English possession was expressly recognised, declaring that the British Settlement had not [been] and is not included in said treaty; and with respect to the extension of territory, the limits were fixed as to the North, the Mexican province of Yucatan and as to the south, the Sarstoon river."

• Further on the Minister said:

     ". . . On examining this situation, we could not fail to recognise that the right we had constantly alleged of being presumptive heirs of Spain's sovereignty, was considerably weakened due to our lack of means to take possession of these territories that had been deserted and abandoned by Spain herself and subsequently by us . . . It was recognised that we could not argue against the sovereignty already being exercised with full Spanish acquiescence in 1821 when we became independent . . . the truth was that since we had never taken possession of these territories, nor had we recognised them, nor maintained agents to represent us in them, it would make it impossible for us to determine or fix which part was occupied during Spanish rule and which part was occupied thereafter. This loomed as an insurmountable obstacle against materialising our claim."

119. The situation did not change after 1859. Throughout the territory of British Honduras (and now of Belize) the writ of the British Government, and since 1981 of Belize, has run in all its usual manifestations - adoption and application of legislation, functioning of the judiciary and maintenance of public administration.

120. If any further visual evidence thereof is required in respect of the decades following the 1859 Convention it is to be found in the map by Alfred G. Usher, FRGS, revised edition 1888, on a scale of 1:385,000, described as a "Map of British Honduras". It was published in London and was available for sale publicly at a price of £1.00. The map contains the following significant features:

(i) It shows the whole area of British Honduras, as delimited by the 1859
Convention, from the River Hondo in the north to the River Sarstoon in the south.

(ii) It specifically shows the western boundary between British Honduras and Guatemala in the southern section running north-south carrying the words "Boundary Line settled by the Convention of Guatemala of 1860 (sic) - a straight line from the Rapids of Gracias á Dios to Garbutt's Falls (where dotted not opened)".

(iii) In the northern section the line carries the words "From Garbutt's Falls the line is due north until it strikes the Mexican frontier".
(iv) It depicts the areas of various land grants made throughout the area of British Honduras, including grants made in the southern section as far south as the River Sarstoon.

(v) It also carries lines indicative of the approximate position of lines of railway from Belize to the south-western frontier. There were no less than three such lines.

(vi) The area in the south-west, other than the parts marked as being covered by land grants, is marked as "unexplored", and in the part covered by that word is an area which is marked as "Grant made 12th July 1867 by Lieut. Governor John Gardiner Austin, Esq., to Messrs. Putnam, Foster and others, and which was, about 1868, cancelled by the Crown."

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