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organizing on the Belize, under a strained construction of the treaty of 1859, a British dependency under absolute British control, enabling Great Britain to dominate the Isthmus in the teeth of her abjuration of 1850. Nor did he know that, to use the words of Mr. Fish in his instructions of April 16, 1872, above quoted, the Nicaragua treaty "assigned boundaries to the Mosquito reservation probably beyond the limits which any member of that tribe had ever seen," nor that it "confirmed the grants [mostly to British settlers] previously made in Mosquito territory," thereby securing the permanent possession of that coast to British subjects.
3. Stipulations in a treaty may cease to be operative by surrender. (Supra, § 137a.) Aside from the implication of such surrender by Great Britain from her dropping all attempts to obtain, by the concurrence of other powers, an operative international neutralization of the Isthmus, we may infer such surrender, as has been already incidentally noticed, from Great Britain's non-application to take part in the guarantee of the Panama route. If she held the Clayton-Bulwer treaty authorized her to participate jointly in the guarantee and supervision of all isthmian routes, her zeal as well as her interest would have prompted her to claim this share in the guarantee and supervision of the Panama road; that she has never made this claim shows that either she did not construe the treaty as having such application, or that if she did, she abandoned the claim.
4. The assertion of such a claim could not now be made by Great Britain without infringing that well-established rule of equity that a party who permits, without protest, though with full notice, another party to go on for years and make investments in, and exercise dominion over, a particular piece of land, is estopped from setting up a conflicting title to such laud of which title he was all the time cognizant. This, on a scale of enormous importance, is the case with Isthmus transit. Great Britain, so it is said, claims from the time of the treaty of 1850 a joint protectorship over such transit, on any line whatsoever. Yet, at the very time (1850) in which the treaty on which she bases this right was executed, there was in force a treaty between the United States and New Granada by which the United States, as an independent power, without even a suggestion of British co-operation, was to guarantee a railroad to form the instrument of interoceanic commerce then clam
oring for such a transit (see supra, § 145). Of this Great Britain had full notice. She had full notice also from the very condition of things as they then existed, informed as she was by her numerous agents on the spot, and impelled by her vast interests at stake, that in 1850 the Panama Railroad was organized, and that it went into operation, under the management exclusively of citizens of the United States, in 1855. She has had this notice, and she not only has stood acquiescingly by while vast amounts of capital belonging to citizens of the United States have been invested in this road, but she has reaped the advantages of this outlay in the enjoyment of tolls the same as those imposed on all other customers of the transit it secures. During all this time she has uttered not one word of warning. She has not only stood silent while all these great treasures of energy and capital were poured into this road, never uttering one word to intimate that she contested the exclusive title under which alone these expenditures were or could have been made, but, without taking the risk or contributing to the outlay or enduring the burdens, has reaped the full benefits of the adventure. She cannot now lift her voice to contest the
title on which these expenditures were based; nor, to do her justice, has she made such a claim. Yet, not making such a claim as to the Panama Railroad, is equivalent to not making it to Isthmus transit as a whole. The very fact, as we have just seen, that at the time when a notice of interference from her would have stopped the building, under its then auspices, of the Panama road, she gave no such notice, shows that no claim to a joint protectorship of all such modes of transit was contemplated by her at a time when the circumstances of the execution of the treaty was fresh in her mind. And what she did not assert then, each additional year of toil and investment by citizens of the United States in the Panama Railroad, under her observation and to her benefit, but without her protest, has placed an additional barrier in the way of her asserting such adverse claim now. And to surrender the claim by implication as to one line of transit, surrenders it by implication as to all.
5. For Great Britain to assume in whole or in part the protectorate of the Isthmus or of an interoceanic canal, viewing the term protectorate in the sense in which she viewed it in respect to the Belize and the Mosquito country, would be to antagonize the Monroe doctrine (supra, § 57); and for the United States to unite with her in such a protectorship would be to connive at such an antagonism. The Clayton-Bulwer treaty, if it were to be construed so as to put the Isthmus under the joint protectorate of Great Britain and the United States, would not only conflict with the Monroe doctrine, by introducing a European power into the management of the affairs of this continent, but it would be a gross departure from those traditions, consecrated by the highest authorities to which we can appeal, by which we are forbidden to enter into "entangling alliances" with European powers. (Supra, §§ 45, 57, 72.) No "alliance" could be more "entangling" than one with Great Britain to control not merely the Isthmus but the interoceanic trade of this continent; no introduction of a foreign power could be more fatal to the policy of Mr. Monroe, by which America was to be precluded from being the theater of new European domination, than that which would give to Great Britain a joint control of the continent in one of its most vital interests. But this objection, it is important to understand, applies to "protectorship" by a great European power, not to "neutralization" by which the "neutrality" of the Isthmus is settled by all the great powers of the world. (See Professor Holland on the Suez Canal, Fortnightly Review, July, 1883.) To constitute "neutralization" in the sense in which we speak of the "neutralization" of Belgium and of Switzerland, or of the Dardanelles or of the Suez Canal (see supra, § 40), requires such general action. An edict of France, for instance, declaring Belgium "neutral," would bind only France; it required the joint action of the great European powers to make Belgium what she now is, a barrier between France and Germany, which neither can overpass without bringing on the offending party the speedy interference of the other guaranteeing powers. Such an international agreement, entered into by all the great powers, would not be in conflict with the Monroe doctrine in the sense above given. For an agreement that no powers whatever should be permitted to invade the neutrality of an Isthmus route, but that it should be absolutely neutralized so as to protect it from all foreign assailants by whom its freedom should be imperiled, is an application, not a contravention, of the Monroe doctrine. Such an agreement is not an approval of, but an exclusion of, foreign interposition.
6. It is not inconsistent with such an effective neutralization, established by the action of the great powers, that to the United States should be assigned a predominant influence in the management of the Lesseps canal, should that canal be put into operation. In Mr. T. J. Law. rence's essay on the "Means of neutralizing the Canal" (Essays, etc., by T. J. Lawrence, deputy professor of international law, Cambridge, 1884), it is said that if the position were taken "that the United States have grown so great since the treaty of 1850 was signed, and their interests in the canal are so superior to those of any other power, that they ought to have a preponderating voice in determining the rules to be adopted," "such a position would have been impregnable;" and this statement is none the less effective from the fact that Mr. Lawrence's work contains the ablest argument that has been published in behalf of the continuing operation of the treaty of 1850 on all present or future interoceanic routes. Nor could Great Britain take any other position. The Suez Canal, so Great Britain claims, is "neutralized;" yet she has assumed a predominant control over that canal, and this control has been acquiesced in by the other great powers interested.
Mr. D. L. Seymour's report of February 11, 1853, on reciprocal trade with British North America is found in House Rep. 4, 32d Cong., 2d
As to reciprocity treaty of Jan. 28, 1854, see letter from Mr. Chase, Sec. of the
Under the reciprocity treaty between the United States and Great Britain of 1854 the President cannot issue his proclamation giving ef fect to the treaty as to Canada alone, in anticipation of the action of New Brunswick, Nova Scotia, and Prince Edward's Island, nor until he shall have received evidence, not only of the action of these provinces, but also of the Imperial Parliament.
6 Op., 748, Cushing, 1854.
The convention of 1854 for mutual reciprocity of trade with Canada, terminated by notice, did not operate to release a forfeiture previously incurred.
Pine Lumber, 4 Blatch., 182.
The draft of the treaty between Mr. Dallas and Lord Clarendon, of August 27, 1856, will be found in Brit. and For. St. Pap. for 1856-57, vol. 47, 661.
(h) TREATY OF WASHINGTON (1871) AND GENEVA TRIBUNAL.
The rules laid down by the treaty of Washington and applied by the Geneva tribunal are discussed in a future section, infra, § 402a.
The immediate preliminaries of this treaty are thus stated:
"Mr. Fish, when he became Secretary of State, hastened to say to Mr. Motley, the United States minister at London, that the President recognizes the right of every power, when a civil conflict has arisen within another state, and has attained a sufficient complexity, magnitude, and completeness, to define its own relations and those of its citizens and
subjects toward the parties to the conflict,' and that the President regarded the concession of the rights of belligerence to the insurgents ' as a part of the case only so far as it shows the beginning and animus of that course of conduct which resulted so disastrously to the United States.'
"Great Britain accepted this basis for the resumption of negotiations; and a treaty was signed on the 8th of May, 1871, for the reference to a tribunal of arbitration, to be convened at Geneva, of all the said claims growing out of acts committed by the aforesaid vessels, and generically known as the 'Alabama claims.' This tribunal was empowered to determine whether Great Britain had failed to fulfill any of its duties in respect to the subject of arbitration as set forth in the treaty; and in case it should so find, then it was further empowered to proceed to award a sum in gross to be paid to the United States for all the claims referred to it.
"On the organization of the tribunal at Geneva the United States preferred their claims, with a statement of the grounds on which indemnity was asked.
"The views respecting the animus of Great Britain during the insurrection, which Mr. Fish had announced his purpose of presenting for the consideration of any tribunal which might be agreed upon to inquire into the subject, were elaborated and made the basis to support the whole claim for compensation. It was contended upon the other side, as will be seen by reference to the title 'Neutrals,' that the tribunal should assume that Great Britain had exercised its powers, during the insurrection, with good faith and reasonable care, until the assumption should be displaced by proof to the contrary' presented on behalf of the United States.
"In the proceedings which followed, the United States demanded compensation for the following classes of losses and expenditures, so far as they grew out of the acts of the cruisers, viz: 1. Direct losses growing out of the destruction of vessels and their cargoes.' 2. The national expenditures in the pursuit of those cruisers.' 3. The loss in the transfer of the American Commercial Marine to the British flag.' 4. 'The enhanced payments of insurance.' 5. The prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion.' It was denied by Great Britain that a submission of all the claims to arbitration carried with it the right of the arbitrators to take into consideration all the elements of loss, and it was insisted that the tribunal had no right, under the terms of the treaty, to take classes three, four, and five into consideration in its estimate of damages. The United States denied this proposition, and contended that the tribunal was invested with power to decide the question of the extent of its jurisdiction. (See on this point infra, §§ 238, 329a.) The tribunal, without deciding the question, held that 'these claims do not constitute, upon the principles of international law applicable to such cases, good foundation for an award of compensation or computation of damages between nations, and should, upon such principles, be wholly excluded from the consideration of the tribunal, in making its award, even if there were no disagreement between the two Governments as to the competency of the tribunal to decide thereon.' And in regard to the second of the above items of loss, the tribunal, in its award, decided thus: 'Whereas, so far as relates to the particulars of the indemnity claimed by the
United States, the costs of pursuit of the Confederate cruisers are not, in the judgment of the tribunal, properly distinguishable from the general expenses of the war carried on by the United States: The tribunal is therefore of opinion, by a majority of three to two voices, that there is no ground for awarding to the United States any sum by way of indemnity under this head.' The tribunal awarded to the United States the sum of fifteen and one-half millions of dollars in full satisfaction of the claims referred to it.
"Under the same treaty a commission was organized at Washington to adjudicate upon private claims of citizens of each against the other power arising out of acts committed against the persons or property of their citizens during a period which was assumed to be the period of the existence of the insurrection. The language of the submission in the treaty was selected by the negotiators with the object of excluding from the consideration of the arbitrators a class of claims known as the Confederate cotton debt, which the Secretary of State informed the British minister that the United States would not consent to refer. Such claims were, however, presented before the commission by the British agent. The United States made political representations against this infraction of the treaty, and, pending a discussion upon it, the commissioners disposed of the question by deciding against the claims on their merits."
Mr. J. C. B. Davis, Notes, &c. ; see infra, § 402a.
Under article 30 of the treaty of 1871 a British vessel may, in the course of a single voyage, ship goods at two or more successive United States ports on the lakes, for delivery partly through Canada by land in bond, at other United States ports; and then, after completing her cargo, sail to the Canada port where the land carriage is to begin.
14 Op., 310, Williams, 1873.
Under article 30 of the treaty of Washington, of 1871, and article 19 of the regulations made under the first-mentioned article to carry its provisions into execution, it is lawful to transport goods by means of British or American vessels from the ports of Chicago or Milwaukee to points in Canada, thence through Canadian territory by rail, and from the termini of the lines of railway by either British or American vessels to the ports of Oswego and Ogdensburgh, all the above named ports being "ports on the northern frontier of the United States," within the meaning of said regulations.
16 Op., 42, Devens, 1878.
"The provisions of the concluding paragraphs of the 11th article of the Universal Postal Convention of Paris reserve to the Government of each country of the postal union the right to refuse to carry over its territory, or to deliver articles in regard to which the laws, ordinances, or decrees, which regulate the conditions of their publication or of their circulation in that country have not been complied with." Hence a law