CHAPTER II

THE CLAYTON-BULWER CONVENTION

THE Convention signed April 19, 1850, is given in full in the Appendix to this volume.

The Convention was considered to be hurtful to the spirit of the Monroe Doctrine.

Secretary of State Olney, in 1896, said:

In short the true operation and effect of the ClaytonBulwer Treaty is that, as respects all water and land interoceanic communication across the Isthmus, the United States has expressly bound itself so far to waive the Monroe Doctrine as to admit Great Britain to a joint protectorate.

The Convention as stated in the preamble was "for facilitating and protecting the construction of a ship canal and for other purposes." It was primarily to cover the building of a particular canal starting with the river San Juan de Nicaragua on the Atlantic side.

Article I debars either the United States or Great Britain from acquiring or holding

any rights or advantages in regard to commerce or navigation through the said Canal which shall not be offered on the same terms to the citizens or subjects of the other.

Even our English friends will admit this Article

superseded as we have acquired rights on the Isthmus that cannot be enjoyed in common with Great Britain in addition to rights already ours under the Treaty of 1846.

Besides in the Hay-Pauncefote Treaty England has assumed no obligation in connection with the use of the Canal.

Article II says that even in the event of war between the two nations their vessels using the Canal shall be exempt from blockade, detention or capture by either belligerent. While our right to use the Panama Canal as an addition to our war power is conceded by Great Britain, the concession is a guarded one and an admission by us that neutrality is the same as equal treatment, would result in a challenge of the right of the United States to have such power.

Article III provides for a joint protection of the parties constructing the Canal, together with their property.

Article IV pledges Great Britain and the United States to use their influence with States having or claiming jurisdiction over the territory through which the Canal passes, to facilitate the construction and to secure free ports at each end.

Article V is of great importance, for in this article Great Britain and the United States engage to jointly protect the Canal and guarantee its neutrality. Both parties, however, reserve the right to withdraw their protection or guarantee upon six months' notice provided the persons or

company undertaking or managing the Canal make discriminations against one or in favor of one over the other.

It will be noted that management clearly covered the regulation of commerce by tolls and otherwise. The penalty arising from discrimination caused simply the withdrawal of protection by the one discriminated against, the neutrality being secured by joint protection or by the protection of one in case that one secured special treatment not accorded to the other.

So we find the neutrality of this particular Canal provided for in Articles II and V.

Article VI provides for inviting the coöperation of other nations by their entering into treaty stipulations with the two principals.

Article VII has to do with the joint treatment of those who supply the money and do the work on the Canal with an expressed preference for the first reliable contractor that no time may be lost.

Now let us see what Article VIII says:

The Governments of the United States and Great Britain having not only desired, in entering into this Convention, to accomplish a particular object, but also to establish a general principle, they hereby agree to extend their protection by treaty stipulations to any other practical communication, whether by canal or railway, across the Isthmus which connects North and South America; especially to the inter-oceanic communications should the same be practicable, whether by cable or railway which are now proposed to be established by the way of Tehuantepec or Panama.

In granting, however, their joint protection to any such canals or railways, as are by this article specified, it is always understood by the United States and Great Britain that the parties constructing or owning the same shall impose no other charges or conditions of traffic thereupon than the aforesaid governments shall approve of as just and equitable; and that the same canals or railways, being open to the citizens and subjects of the United States and Great Britain on even terms, shall also be open on like terms to the citizens and subjects of every other state which is willing to grant thereto such protection as the United States and Great Britain engage to afford.

Senator Root has several times hearkened back to Article VIII of the Clayton-Bulwer Convention for an argument to support his contention that we must treat the vessels of war and commerce of Great Britain upon terms of equality with our own vessels under all circumstances.

The entire Clayton-Bulwer Convention speaks of equal treatment owing to the fact that equal obligations were undertaken in affording protection and in guaranteeing neutrality.

By Articles II and V of the Clayton-Bulwer Convention the two Governments provided jointly for the building of a particular canal, its protection and its neutrality, the latter being secured by joint protection. But in Article VIII we find two conditions covered separately in the two paragraphs of the article.

The first paragraph establishes as a general principle, to apply to all available routes, the par

ticular object accomplished by joint protection in earlier articles of the Treaty, this object being the neutralization secured in Articles II and V by joint protection.

The second paragraph provides that if the two countries do extend their contract joint protection by treaty stipulation to other routes, such routes shall be open to the two countries on equal terms and on like terms to other countries willing to join in the protection.

An important fact in this connection already noted is that either party could withdraw the protection by which neutrality and protection was secured by giving six months' notice, in case such equality of treatment was not secured.

As provided by the Clayton-Bulwer Convention, the Canal specified to run through Nicaragua was to be neutralized by the two nations jointly; they were to join in the burdens; they were to join in the protection; and they were to join hand in hand in controlling the Canal and in seeing that all nations did have exactly the same treatment by the Company building this canal through a territory alien to each of them.

This partnership control you will see has been definitely and permanently ended by the last treaty, and this termination, we see from the pourparlers, proves beyond question that Great Britain understood this and acted in complete accord with such understanding.

Equality of treatment under Article VIII was