The Zacharias cabinet was left with the issue of the borders stipulated within the alliance treaty, agreed upon in that document, which the Argentine Republic desired. As we have seen, Saraiva sent instructions to Otaviano on 5 May 1866 explaining the policy that he should follow in this delicate business, but he did not end up having the chance to enact them, and on 30 September 1867 an inquiry was raised before the Council of State about the appropriateness of modifying or renewing those instructions, an inquiry produced by the stances of São Vicente, Uruguay, and Jequitinhonha.
The Minister of Foreign Affairs, senhor Albuquerque, in the instructions he sent to Caxias, Brazilian generalissimo in Paraguay, on 6 May 1867, anticipating a soon triumph, referred to Saraiva’s instructions in this way: — “Paragraph 10 of the instructions establishes the acceptance of the borders indicated in the alliance treaty. Y.E. should not allow the inclusion of this clause in the preliminary peace treaty, without an express declaration which saves the rights that the Republic of Bolivia could allege to the right shore territory of the Paraguay. The due exemption of these rights was made in the notes exchanged between senhor Councilor Otaviano and señores Castro (1) and Elizalde on 1 May 1865. Recognizing the borders indicated in article 17 of the alliance treaty only excludes Paraguay’s claims from the discussion, and in no way excludes those which Bolivia has, or may believe it has in the future, over said territory. So, Y.E., maintain the doctrine of the aforementioned notes.” — In this way, Sá e Albuquerque recognized the Alliance’s agreement, exempting only the rights of Bolivia, expressly guarded in the treaty or in its protocol.
The diplomatic recourse which Saraiva thought up, to keep the Paraguay’s right shore from passing completely into Argentine hands, was founded, however, on the right, or on the claims, of Bolivia. The reader will recall that, according to Saraiva’s instructions, the Brazilian government, without refusing the obligation the treaty imposed on it, desired the Argentine government to content itself with the territory extending up to Pilcomayo and Bahía Negra.
The obligation Brazil contracted in that treaty will be studied in all its aspects later on, when we discuss Nabuco’s stance before the political scene of the Rio Branco cabinet. Here is the attitude that he adopts in his first speech: the war is not one of conquest, the borders must be discussed jointly with the Paragauyan nation in clear use of its sovereignty, and not as a conquered nation dealing with a conqueror, and the definitive decision should be entrusted not to the victorious sword, but rather to the judgment of the United States. (Nabuco was the first in putting forth this idea, anticipating it before anyone else.)
With the question of Saraiva’s instructions, the instructions that Otaviano did not come to fulfill, being an open one, Nabuco could express himself regarding an act of his own ministry with total liberty. One can observe that his opinion went against the incapacitation of the López family, demanded in those instructions.
To that effect, he expresses himself in his speech on September 30th (1867), the first of a long series of speeches related to the alliance:
“Senhor! According to the communication from the 27th of this month, the Council should rule on the instructions from 5 May 1866 regarding the definitive proposal for peace, which proposal the Argentine Confederation presented to the imperial government.
“In the brief space granted to the Council of State for the examination of this material, it has not been possible for me to examine it more than superficially. I will limit myself to the question specified in the imperial notice.
“The Minister of Foreign Affairs spoke on the definitive proposal for peace, the viscount of Jequitinhonha formulating a separate assertion.
“Senhor, I find myself in agreement with a proposition of that separate assertion, and believe that, being a prior issue, it takes precedence over all the others.
“The proposition is this: that in the treaty of alliance, only that which refers to the war and the method of waging it is definitive, and all the other issues should be considered only provisionally resolved.
“In effect, the war can end in two ways: by the absolute submission of one of the belligerents, or by a peace treaty.
“In the first case the victor acquires sovereign and absolute power over the defeated party, can annex its territory, and can have it at its disposal.
“In the case of a peace treaty, the rules relating to diplomatic conventions are, generally, applicable.
“We must not speak of the first proposal, since we do not propose the partitioning nor the conquest of Paraguay.
“We discuss, then, the second proposal, that is, the peace treaty.
“The peace treaty in which Paraguay takes part will have definitive effects on its territory.
“Because of this the triple alliance treaty is not definitive and perpetual in the portion referring to borders, but rather provisional and dependent on the definitive peace treaty.
“Now: a preliminary treaty is not a perfect treaty, it is what is called a pactum de contrahendo; and since it is not obligatory, it can be modified according to the state of things at the time the definitive treaty is made, after the victory.
“The war’s cause was not a matter of territory, this is undoubtable; nor was the partitioning of Paraguay a condition of the alliance.
“The question of borders was no more than incidental and provisional in the treaty.
“It could not be any other way, because for that agreement on borders to be perfect, Bolivia and Paraguay would have had to be parties to it.
“This point clarified, the border issue should be excluded from the definitive peace treaty, putting it off to be resolved it in another treaty in which Brazil, the Argentine Republic, Paraguay, and Bolivia figure, prior to an agreement to submit any differences that may arise to the arbitration of the United States.
“The Argentine Republic cannot make complaints that the triple alliance treaty is not definitive on the question of borders, because neither is it definitive for Brazil.
“But if it is understood that the clauses of the triple alliance treaty are definitive and constitute a consummated act, and that the definitive peace treaty must not be more than a formula, with which we sanction the imposition of our will over Paraguay, in that case I approve the instructions of May 1st, except where they concern the incapacitation of the López family.
“That incapacitation is repugnant to the spirit of our fundamental code and to the beginning of the friendship which civilization enshrines in all treaties of peace.
“If that incapacitation is necessary, I believe that it can be decreed by diplomatic means, but in no way can it be established by a peace treaty.”
1. Carlos de Castro, Uruguayan statesman, represented Uruguay during the creation and signing of the alliance treaty.