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had been presented within the time specified, and which had not been decided by the commission appointed under the convention with New Granada of 1857, and therefore conferred jurisdiction to determine what cases had been presented to, but not decided by, the old commission.

11 Op., 402, Speed, 1865.

The claim of R. W. Gibbes having been duly referred to the commissioners under the convention with New Granada of 1857 (Pub. Trs., 564), and submitted to the umpire, who reported an award during the existence of the commission, and payment having been suspended by request of the Secretary of State, and the case having been afterward referred, without the claimant's consent, to the commission under the convention with Colombia of 1864 (Pub. Trs., 158), as the representative of the late Republic of New Granada, it was held, that, by the submission of this claim to the latter commission in the manner stated, the claimant was not divested of his rights against New Granada under the award of the umpire aforesaid.

13 Op., 19, Hoar, 1869; see infra, § 221.

The award not having been vacated, opened, or set aside during the life-time of the former commission, and the claimant having done nothing since to waive his rights thereunder, it should be treated by our Government as a valid and conclusive ascertainment of his claim against New Granada.

13 Op., 19, Hoar, 1869.

By article 35 of the treaty of December 12, 1846, with New Granada, it was provided that the right of transit across the Isthmus of Panama "should be open and free to the Government and citizens of the United States; nor shall the citizens of the United States be liable to any duties, tolls, or charges of any kind to which native citizens are not subjected, for thus passing the said isthmus." When gold was discovered in California in 1848, the isthmus became a great thoroughfare for citizens of the United States, and the State of Panama, a province of New Granada, began, in 1849, to levy a tax on all persons crossing the isthmus. It was held that this tax defeated the plain intent of the treaty, being actually, though not ostensibly, leveled at citizens of the United States and falling principally upon them.

13 Op., 547, Akerman, 1871.

This question was before the Washington Commission of 1865.

By the law passed by the provincial chamber of Panama captains of all vessels embarking or disembarking passengers in Panama were required to pay two dollars for each one of said passengers. The Pacific Mail Steamship Company, an American company, made a claim before the above commission, on the ground stated in the foregoing opinion. The claim was rejected by the umpire for want of jurisdiction. At that time the United States had never definitely or formally taken the posi

tion that the tax was a violation of the treaty of 1846; and the supreme council of Colombia had rejected the claim of the steamship company upon the express ground that the law imposing the tax was not a violation of the treaty. Under these circumstances the umpire said, "Being of opinion, therefore, that the construction to be put on the treaty has not been settled by the proper authorities; that the Commission is not empowered to settle a question of such a nature, and that upon the decision of that question the right of the company to indemnity, if otherwise unobjectionable, must depend, I reject this claim, with the declaration that this award does not prejudice the rights of the claimants should the Government of the United States decide at any time hereafter that under the treaty of 1846 the imposition of the passenger tax constituted such a violation of its letter or spirit as to authorize a demand for redress.

Washington Commission, 1865. MSS. Dept. State.

As to isthmus, see further infra, §§ 287, ff.

"The convention with Colombia was the first of a long series of treaties of amity and commerce with the several American States of Spanish or Portuguese origin. It contained, in addition to most of the liberal provisions already noted, an agreement, which has since been incorporated into many other treaties, that infractions of the treaty by citizens of either party should not interrupt the harmony and good correspondence between the two nations.

"In the year 1831 the Republic of Colombia separated into the three independent Republics of Ecuador, New Granada, and Venezuela; and New Granada, in 1862 took upon itself the name of the United States of Colombia.

"It was while the territory bore the name of New Granada that the treaty of amity, commerce, and navigation, of December 12, 1846, was concluded.

"In 1866 some correspondence took place respecting the construction of the guarantee of the United States in the treaty of 1846. No result was reached.

"On the 23d of April, 1867, the minister of Colombia at Washington proposed to the Secretary of State to make certain changes in the existing treaty. At the time these proposals were made nineteen years had not expired from the date of the exchange of the ratifications of the treaty, and a question arose whether, under the thirty-fifth article of the treaty, they operated to terminate it. Mr. Perez, the Colombian minister at Washington, wrote Mr. Fish, April 15, 1871: 'Such documents cannot be considered as a notification of the cessation of the treaty, and, in fact, they have hitherto not been so considered. In both countries the treaty has been and still is considered as being in force.' Mr. Fish replied, 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

S. Mis. 162-VOL. II- -8


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.""

Mr. J. C. B. Davis' Notes, &c.

It is to be observed that the word "neutrality" in the convention of 1846, is not used in the technical sense of "neutralization." "Neutralization," as is elsewhere seen, (supra, § 40; infra, § 150 ff;) is the assignment to a particular territory or territorial water of such a quality of permanent neutrality in respect to all future wars as will protect it from foreign belligerent disturbance. This quality can only be impressed by the action of the great powers by whom civilized wars are waged and by whose joint interposition such wars could be averted. As the "neutrality" of the Isthmus is, by the convention before us, guaranteed only by the United States, it is not a neutralization in the above sense, but only a pledge and guarantee of protection.

As to neutralization of Isthmian canal, see infra, § 150 ff.


§ 146.

"The settlement of the question respecting the port of San Juan de Nicaragua, and of the controversy between the Republics of Costa Rica and Nicaragua in regard to their boundaries, was considered indispensable to the commencement of the ship-canal between the two oceans, which was the subject of the convention between the United States and Great Britain of the 19th of April, 1850. Accordingly a proposition for the same purposes, addressed to the two Governments in that quarter, and to the Mosquito Indians, was agreed to in April last by the Secretary of State and the minister of Her Britannic Majesty. Besides the wish to aid in reconciling the differences of the two Republics, I engaged in the negotiation from a desire to place the great work of a shipcanal between the two oceans under one jurisdiction, and to establish the important port of San Juan de Nicaragua under the Government of a civilized power. The proposition in question was assented to by Costa Rica and the Mosquito Indians. It has not proved equally acceptable to Nicaragua, but it is to be hoped that the further negotiations on the subject which are in train will be carried on in that spirit of conciliation and compromise which ought always to prevail on such occasions, and that they will lead to a satisfactory result."

President Fillmore, Third Annual Message, 1852.

The guarantee to Honduras of neutrality of interoceanic communication does not imply "that the United States are to maintain a police or

other force in Honduras for the purpose of keeping petty trespassers from the railway."

Mr. Fish, Sec. of State, to Mr. Baxter, May 12, 1871. MSS. Inst., Honduras; For.


Mr. Fish, Sec. of State, to Mr. Torbert, Mar. 20, 1871. MSS. Inst., San Salvador; ibid.

As to submission by Costa Rica and the United States of Colombia of their difficulties to the arbitration of the King of Belgium, see letter of Mr. Blaine, Sec. of State, to Mr. Putnam, May 31, 1881. MSS. Inst., Belgium. "Information has been received at this Department that the Republics of Costa Rica and the United States of Colombia have, by convention, agreed to refer certain differences on the question of boundaries to ar. bitration. The arbitrators named in the convention are, His Majesty the King of the Belgians, His Majesty the King of Spain, and his Excellency the President of the Argentine Republic, the arbitration being offered to each in the order named.

"I have reason to believe that the invitation to act as arbitrator extended to the King of the Belgians will be declined, and it is to be presumed that, according to the terms of the convention, a similar application will then be made to the King of Spain.

"The subject submitted to arbitration is the boundary line between the Republic of Costa Rica and the State of Panama, one of the constit uent states of the United States of Colombia, and its decision must seriously affect the extent of the littoral territory of Panama, both on the Atlantic and the Pacific coast. As you are aware, by the thirty-fifth article of the treaty of 1846 between the United States of America and the United States of Colombia, the United States of America have not only guaranteed the neutrality of any interoceanic connection across the Isthmus of Panama, but also the sovereignty of the United States of Colombia in and over the state of Panama.

"This guarantee has now existed (and on more than one occasion been enforced) for thirty-five years. Under its protection all efforts for the execution of an interoceanic canal have hitherto been attempted, and the present enterprise so largely attracting the attention of the world, by whatever individuals it may be undertaken, is equally covered by the obligations and responsibilites of that guarantee. Any question which, by affecting the boundaries of the State of Panama, either enlarges or diminishes the rights or the obligations of the United States of America, under this guarantee, is of direct and practical interest to this Government.

"It has been, therefore, a matter of surprise to the Government of the United States of America that this convention has been negotiated between the two Republics without communication to us either of its purposes or methods.

"The Government of the United States of America recognizes the wisdom of such a mode of settlement for international differences, and is far from making any pretension to be the only or necessary arbiter to whom the Republics of South and Central America should appeal. In

deed, I may go further and say that this Government can readily understand and appreciate the feeling which would induce the Spanish Republics of this continent to seek in the great monarchy from which they have derived their life, their language, and their laws, a sympathizing umpire. While, therefore, this Government has no dissatisfaction to express at the selection of His Majesty the King of Spain, it is only proper to avoid all possibility of future misunderstanding between His Majesty and the Government of the United States that His Majesty should be informed of the view of this convention entertained by the Government of the United States.

"This Government is of opinion that any question affecting the territorial limits of the State of Panama is to it one of direct practical concern, and that under the guarantee of the treaty of 1846 it is entitled to an active interposition in the solution of any such question, should it deem that its interests require such intervention; it further thinks that the convention providing for the arbitration should have been the subject of frank communication and friendly consultation with it on the part of the signatory powers.

"This Government will not interfere to prevent the accomplishment of such arbitration, nor does it undertake to express any opinion as to the acceptance by His Majesty the King of Spain of the invitation which has been tendered him. But it deems it due to itself and respectful to His Majesty to inform him in advance that the Government of the United States, where either its rights or interests are concerned, will not hold itself bound by any arbitration, where it has not been consulted on the subject or method of arbitration, and has had no voice in the selection of the arbitrator. Before you act upon the instruction now given, you will inform yourself whether such invitation has been or is about to be tendered to His Majesty, as I am informed the invitation has not yet been extended to His Majesty the King of the Belgians, and circumstances may therefore delay, if not entirely prevent, the reference to His Majesty the King of Spain. Should the contingency provided for, however, occur, you will take a proper opportunity to communicate to the secretary for foreign affairs the views which I have now expressed.

"In doing so you will carefully avoid anything in the nature of a protest, and will say that your communication is induced by the anxiety of this Government to avoid any misunderstanding or seeming disrespect of the decision which His Majesty may reach should he accept the arbitration."

Mr. Blaine, Sec. of State, to Mr. Fairchild, June 25, 1881. MSS. Inst., Spain;
For. Rel., 1881.

Under the twelfth section of the act of 1861 (12 Stat., 147), to carry into effect the convention with Costa Rica of 1860, certified copies or duplicates of papers filed in the State Department, and not translations, must

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