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of this instruction to the Navy Department, with a request that, if a renewal of the orders of 1856 be requisite, in view of the lapse of time and change in the personnel of officers in command, such measures may be taken as will secure the protection of the interests of our citizens on the isthmus, to which they are entitled under the solemn guaranties of the Government of New Granada."
Mr. Seward, Sec. of State, to Mr. Burton, Feb. 27, 1862. MSS. Inst., Colombia.
"The question which has recently arisen under the 35th article of the treaty with New Granada, as to the obligation of this Government to comply with a requisition of the President of the United States of Colombia for a force to protect the Isthmus of Panama from invasion by a body of insurgents of that country, has been submitted to the consideration of the Attorney-General. His opinion is, that neither the text nor the spirit of the stipulation in that article by which the United States engages to preserve the neutrality of the Isthmus of Panama, imposes an obligation on this Government to comply with a requisition like that referred to. The purpose of the stipulation was to guarantee the Isthmus against seizure or invasion by a foreign power only. It could not have been contemplated that we were to become a party to any civil war in that country by defending the Isthmus against another party. As it may be presumed, however, that our object in entering into such a stipulation was to secure the freedom of transit across the Isthmus, if that freedom should be endangered or obstructed, the employment of force on our part to prevent this would be a question of grave expediency to be determined by circumstances. The Department is not aware that there is yet occasion for a decision upon this point."
Mr. Seward, Sec. of State, to Mr. Burton Nov. 9, 1865. MSS. Inst., Colombia. Mr. Seward's observations on the proposed convention with the United States of Colombia as to a ship canal across the Isthmus will be found in his instruction to Mr. Sullivan, Sept. 17, 1868. MSS. Inst., Colombia.
"I have had the honor to receive your note of yesterday stating that you had received instructions to solicit the issue of such orders as may be thought necessary to the end that Colombian vessels may be treated in the ports of the United States to which they may convey merchandise, when the latter does not proceed from any other port of the United States in the same ocean, in the same manner as American vessels employed in the same trade. Your note further adverts to the fact that the privilege desired was secured by the treaty between the United States and New Granada of the 12th of December, 1846.
"In reply I have to state that, as your request seems to imply an opinion on the part of your Government that the treaty adverted to has been definitively terminated, it is deemed advisable to hold the application under consideration until no doubt shall remain upon that point. The 35th article of the treaty stipulates that it shall last for twenty years from the exchange of ratifications, which took place on
the 10th of June, 1848. The same article further provides, Notwithstanding the foregoing, if neither party notifies to the other its intention of reforming any of or all the articles of this treaty, twelve months before the expiration of the twenty years stipulated above, the said treaty shall continue binding on both parties, beyond the said twenty years, until twelve months from the time that one of the parties notifies its intention of proceeding to a reform.'
"It appears that under date the 23d of January, 1867, General Salgar, then accredited to this Government as envoy extraordinary and minister plenipotentiary of the United States of Colombia, addressed to this Department a note from New York, in which he stated that he had been instructed to set on foot a negotiation for the purpose of renewing the treaty prior to the termination fixed in the 35th article.
"The receipt of this note was acknowledged in one from the Department of the 29th of January.
"With another note of the 23d of April, 1867, General Salgar transmitted a copy of the changes which his Government desired in the treaty, and offered to discuss the subject at such time as might be appointed for that purpose.
"It does not appear that any reply was made to the last-mentioned note, or that the discussion proposed by General Salgar took place. There is also nothing on record or on file here to show that the notes of General Salgar referred to were regarded and received as such a termination of the treaty as that for which the instrument itself provides.
"Nor does it appear that the Secretary of the Treasury of the United States has been informed that the treaty is at an end, and, therefore, that the privileges previously enjoyed under it by Colombia, in the ports of the United States must be discontinued. Indeed, so far as this Department is aware, those privileges, including the one requested by Mr. Perez, are still enjoyed by Colombian vessels and their cargoes. In any event, before a definitive answer can be given to your application, or your request can be complied with, it will be necessary for you to state that, from your own knowledge, a similar privilege is enjoyed by vessels of the United States and their cargoes in the ports of Columbia."
Mr. Fish, Sec. of State, to Mr. Perez, Feb. 8, 1871. MSS. Notes, Colombia;
"Your note of the 15th ultimo, relative to the treaty between the United States and New Granada of the 12th of December, 1846, was duly received. Almost ever since, however, my attention has been so engrossed by other important business that it has been impracticable to secure the leisure necessary to arrive at a satisfactory conclusion upon that subject. Now, however, I am happy to be able to announce that although literally and technically, pursuant to the clause of the 35th article of that instrument upon the subject, this Government might
hold that the application made by General Salgar for a revision of the treaty, in anticipation of a lapse of the time fixed for its termination, might be held to have brought about that result, the intentions of the parties at the time may, as you observe, be allowed to govern the question. General Salgar in his notice did not say that if his proposition should not be accepted the Colombian Government would regard the treaty as at an end, and Mr. Seward does not appear to have received that proposition as a formal notice of termination. His silence upon the subject may fairly be construed as indicative of an opinion on his part that, so far as the interests of the United States were concerned, no change in the treaty was required, and the form of the application of Colombia may also be construed to imply that, although she might prefer the changes proposed in that application, she did not regard them as indispensable to its continuance. Under these circumstances it may be said to comport with the interests of both parties to look upon the treaty as still in full force, but as subject to revision or termination in the form and upon the terms stipulated.
"The instrument, upon the whole, is believed to have been mutually advantageous. It is true that the flag of Colombia may not have as often been seen in the ports of the United States as that of the latter in the ports of Colombia. This, however, should not be imputed to any defect in the treaty, but rather to the different circumstances of the two countries. A principal object of New Granada in entering into the treaty is understood to have been to maintain her sovereignty over the Isthmus of Panama against any attack from abroad. That object has been fully accomplished. No such attack has taken place, though this Department has reason to believe that one has upon several occasions been threatened, but has been averted by warning from this Government as to its obligation under the treaty. This Government has every disposition to carry the treaty into full effect. If, in the opinion of Colombia, the Executive of the United States should have insisted
on a construction of the clause prohibiting the coasting trade of one country to the vessels of the other, incompatible with that equality in matters of trade and navigation which other articles of the instrument promise, the merchants of Colombia may, on proper application to the courts of the United States, have their rights under the treaty vindicated.
"We heartily desire any practicable and advantageous increase in the commercial intercourse between the two countries, and are by no means so selfish as to prefer that this should be carried on exclusively under the flag of the United States, especially if we should have promised that Colombia may share therein on equal terms. Recent events, which it is needless to particularize, may have made the transit of the Isthmus of Panama less indispensable to communication between the Territories of the United States on the Atlantic and those on the Pacific than when the treaty was concluded. Similar events, however, may, it is hoped,
soon impart increased activity to other traffic between the United States and Colombia to the mutual advantage of both countries.”
Mr. Fish, Sec. of State, to Mr. Perez, May 27, 1871. MSS. Notes, Colombia;
As to isthmus, see infra, §§ 287, ff.
"This Government, by the treaty with New Granada of 1846, has engaged a guarantee of neutrality of the Isthmus of Panama. This engagement, however, has never been acknowledged to embrace the duty of protecting the road across it from the violence of local factions. Although such protection was of late efficiently given by the force under the command of Admiral Almy, it appears to have been granted with the consent and at the instance of the local authorities. It is, however, regarded as the undoubted duty of the Colombian Government to protect the road against attacks from local insurgents. The discharge of this duty will be insisted upon."
Mr. Fish, Sec. of State, to Mr. Keeler, Oct. 27, 1873. MSS. Dom. Let.
This Department deems it important, in the interest of general commerce, and especially of the carrying trade of that route, that these disturbances should be guarded against. By the treaty with New Granada of 1846 this Government has engaged to guarantee the neutrality of the Isthmus of Panama. This engagement, however, has never been acknowledged to embrace the duty of protecting the road across it from the violence of local factions; but it is regarded as the undoubted duty of the Colombian Government to protect it against attacks from local insurgents."
Mr. Fish, Sec. of State, to Mr. Scruggs, Oct. 29, 1873. MSS. Inst., Colombia. By a diplomatic arrangement between the representatives of the United States, Germany, France, and Great Britain, with the secretary of foreign affairs of Colombia in 1876, it was agreed that until the statute prescribing deposit of papers of vessels entering Colombian ports with the local Colombian authorities should be modified by the Colombian Congress, such papers "should be deposited with the consul of the respective nation, or, in the absence of such consul, with the consul of a friendly power." This agreement is still in force.
Mr. Evarts, Sec. of State, to Mr. Dichman, July 26, 1878. MSS. Inst., Colombia. See Mr. Evarts to Mr. Dichman, Feb. 4, 1879, as to the persistence of Colombia in the obnoxious statute.
As to convention of 1878 between the Colombian Government and the Civil Inter-oceanic Canal Company, see inquiries of Mr. Evarts, Sec. of State, to Mr. Dichman, July 20, 1878. MSS. Inst., Colombia.
Our guarantee of neutrality to the Isthmus of Panama furnishes no ground for any action by this Government in restraint of the transportation of munitions of war to belligerents in a war as to which our Government is neutral.
Mr. Evarts, Sec. of State, to Mr. Sherman, Nov. 14, 1879. MSS. Dom. Let.
"Diplomatic intercourse with Colombia is again fully restored by the arrival of a minister from that country to the United States. This is especially fortunate in view of the fact that the question of an interoceanic canal has recently assumed a new and important aspect, and is now under discussion with the Central American countries through whose territory the canal, by the Nicaragua route, would have to pass. It is trusted that enlightened statesmanship on their part will see that the early prosecution of such a work will largely inure to the benefit, not only of their own citizens and those of the United States, but of the commerce of the civilized world. It is not doubted that should the work be undertaken under the protective auspices of the United States and upon satisfactory concessions for the right of way, and its security, by the Central American Governments, the capital for its completion would be readily furnished from this country and Europe, which might, failing such guarantees, prove inaccessible."
President Hayes, Third Annual Message, 1879.
The grant by the Colombian authorities to the United States of a right to establish coaling stations in certain ports on Colombian waters, may be asked by the United States as a matter of international courtesy.
Mr. Evarts, Sec, of State, to Mr. Dichman, April 19, 1880. MSS. Inst., Colombia.
"By the treaty of 1846 the United States are guarantors of the neutrality of any interoceanic canal through the Isthmus of Panama, and of the sovereignty of the Republic of Colombia over the territory through which it passes. If we are rightfully informed, no other Government has been willing to come into any such treaty relations with Colombia, and to-day such a canal by whomsoever completed would need to rest upon this stipulated protection of the United States, and should the United States recognize their rights under this concession, both its projectors and the Government of Colombia would be authorized under certain contingencies to call upon and be wholly dependent upon this Government for the fulfillment of this obligation. Under such circumstances the United States would have considered it as the manifestation of a just and friendly spirit if the Government of Colombia had furnished us timely information of the proposed concession, and thus enabled us to judge whether the conditions under which our guarantee had been made had been preserved with due consideration both of the rights which that guarantee confers and the obligations which it imposes.
"But it cannot be overlooked that by the 35th article of the treaty of 1846 the United States has not only, 'in order to secure to themselves the tranquil and constant enjoyment' of the advantages of that treaty, undertaken to 'guarantee positively and efficaciously to New Granada'