Treaty, 1896.*

"The Clayton-Bulwer Treaty had its origin in an earnest desire on the part of the Government and people of this country to shorten the transit and to facilitate the communications between our then newly acquired possessions on the Pacific coast and the rest of the United States. California was acquired in 1848, and the opening of its gold fields and the rush of population thither followed almost immediately. In 1849, the United States, by treaty with Nicaragua, secured concessions in favor of an American company organized for the construction of a canal between the two oceans via the lakes of Nicaragua and the River San Juan. Two obstacles, however, stood in the way of this company's successful prosecution of the work. One was the rights asserted by Great Britain over the Mosquito Coast. The other was the inability to procure the necessary capital in this country, or to procure it in England or elsewhere abroad, so long as the enterprise was conducted under purely American auspices. To remove the first of these difficulties, in 1849, Mr. Clayton, the then Secretary of State, applied to the British Government, through its minister at Washington, for the withdrawal of the British pretensions to dominion over the Mosquito Coast. The answer was a refusal coupled with an intimation that Great Britain was willing to enter into a treaty for a joint protectorate over the proposed canal. It being supposed, undoubtedly, that if the canal were built under British protection the only remaining obstacle to its construction, namely, want of sufficient capital, would also disappear, negotiations were set on foot between the two Governments on the basis of the British proposal. They progressed with great rapidity and with the result that in June, 1850, the Clayton-Bulwer Treaty was signed.

"The treaty is characterized by certain remarkable features. It contains numerous and apt provisions for the protection, safety, and neutralization of the proposed ship canal; but it deals not merely with the particular subject-matter which, in the view of the United States, led to its negotiation. It also deals with others of larger magnitude, contemplates alliances with other powers, and lays down general principles for the future guidance of the parties. The United States, in entering upon the negotiation, aimed to accomplish two specific things-the renunciation by Great Britain of its claim to the Mosquito Coast and such a protectorate over the canal by Great Britain jointly with the United States as might be expected to attract to the canal British capital. As the result of the negotiations, it secured not only the two things specified, but also a third, viz, Great Britain's express agreement, so far as Central America was concerned, to

*Moore, A Digest of International Law (1906), v. 3, pp. 203–209.

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give effect to the so-called Monroe doctrine. For these advantag it rendered, of course, a consideration. It waived the Monroe do trine to the extent of the joint protectorate of the then propose canal and by Article VIII. agreed to waive it as respects all other pra ticable communications across the Isthmus connecting North an South America, whether by canal or railway. In short, the true ope ation and effect of the Clayton-Bulwer Treaty is that, as respects Ce tral America generally, Great Britain has expressly bound herself t the Monroe doctrine, while, as respects all water and land interoceani communications across the Isthmus, the United States has expressl bound itself to so far waive the Monroe doctrine as to admit Grea Britain to a joint protectorate.

"Assuming the effect of the Clayton-Bulwer Treaty to be as abov stated, the further inquiry is whether the Clayton-Bulwer Treaty i to be regarded as now in force, in whole or in part. This resolve itself into the question, whether the United States is now at liberty t regard the treaty as a nullity. Great Britain's position in the matte has never been doubtful, and has always been the same. She ha always insisted, and still insists, upon the treaty being in full life and force. There was a period of ten years, indeed, from 1850 to 1860 when she undoubtedly did not fully comply with the provisions of the treaty. The complaints of this country were as loud as they were just, and might well have been made the ground for an annulment of the treaty altogether. Great Britain undertook to meet the com plaints by suggesting modifications of the treaty or an arbitration as to the meaning of its terms, and, these expedients failing, even intimated a readiness to entertain a proposal for its complete abrogation. The proposal was declined by General Cass because, as Mr. Blaine conjectures, he was unwilling to give the implied consent of this country that Great Britain should be at liberty to negotiate treaties with the Central American states unhampered by the provisions of the Clayton-Bulwer Treaty. 'Modification, arbitration, and abrogation ** * * having been flatly rejected' such was the language of Lord Malmesbury-Great Britain next undertook to put herself in a position in which she could no longer be charged with violating the treaty, by making separate treaties with the Central American states. Accordingly, in 1859 and 1860, she concluded treaties with Nicaragua and Honduras, substantially according with the general tenor of the American interpretation of the treaty. The result was hailed with great satisfaction in this country. The language of President Buchanan, in his annual message, December, 1860, is as follows: [Here follows the passage from President Buchanan's Fourth Annual Message, given supra, p 182.]

"This announcement of President Buchanan was received by Congress without a symptom of dissent, and since that time every Admin

istration, and, with a single exception, every Secretary of State, has dealt with the Clayton-Bulwer Treaty as a subsisting and binding instrument. In 1866, Mr. Seward, writing to our Minister at St. James, queries whether, as the renunciatory clauses of the treaty relate to a proposed canal, they will operate forever if no canal should ever be begun. While thinking they would not, still, the question being an open one, he declared that neither party could fairly do anything contrary to the spirit of the treaty, and he therefore instructed the American minister to quietly ascertain the disposition of the British Government to favor our acquiring coaling stations in Central America, notwithstanding the treaty. In 1872, Mr. Fish instructed our minister to England, if certain statements should prove to be correct, to formally remonstrate against certain trespasses upon the territory of Guatemala as being an infringement of the Clayton-Bulwer Treaty. In 1880, the then Secretary of State, Mr. Evarts, took the same ground, in view of a rumored alienation of the Bay Islands to Great Britain. His successor, Mr. Blaine, declared that the treaty had been misunderstandingly entered into, imperfectly comprehended, contradictorily interpreted, and mutually vexatious.' But, while earnestly calling for its revision on the ground of radically changed conditions, he made no claim that the treaty was not in being and, indeed, by the very call for revision, conclusively admitted its existence. Mr. Bayard, in 1888, while declining to comment upon any opinions of his predecessors respecting the temporary or perpetual existence of any of the provisions of the treaty, insisted upon them as binding upon Great Britain by her own admissions. From these utterances from the heads of the Department of State, there is but one dissent. Mr. Frelinghuysen, in 1882-83, took the distinct ground that the treaty was, as he expressed it, 'voidable,' though, if his argument be admitted to be sound, it is difficult to see why he should not have used the term 'void,' instead of 'voidable.' . It remains to examine the grounds of Mr. Frelinghuysen's conclusions, which rest upon two contentions.

"One is that the first seven articles of the treaty relate to a particular ship canal, to be constructed by a particular company, under a particular treaty concession made in 1849; that the treaty and the concession and the company have all passed away without the building of any canal; and that, consequently, these seven articles are obsolete and without any subject-matter upon which to operate. One obvious answer is that this point of Mr. Frelinghuysen, however ingenious, is taken too late; that for thirty years the uniform construction of both Great Britain and the United States, and of the statesmen of each country, has been the other way; that this uniform construction, which each party has so long continuously enforced upon the other as the true construction, now estops each of them from drawing it in question. If it were true that the parties to the

treaty, by these first seven articles, were referring only to the particalar canal of the then existing company, would the fact not have been known and proclaimed whes the treaty was new, and by the very men who made it, and would it have been left to Mr. Frelinghuysen to discover, after the lapse of more than a quarter of a century? But the true answer is to be found within the four corners of the treaty itself, in its general scope and tenor, as well as its particular language. If the first seven articles were meant to apply to the canal of a particular existing company, there is no conceivable reason why that company and its canal should not have been precisely identified by name or in some other unmistakable manner. But the treaty is carefully drawn to exclude any limitations of that sort. The preamble recites that the parties desired to fix 'in a convention their views and intentions with reference to any means of communication by ship canal which may be constructed between the Atlantic and Pacific oceans.' The general description of the route-‘by way of the River San Juan de Nicaragua and either or both of the lakes of Nicaragua or Managua to any port or place on the Pacific Ocean'— is equally general and equally comprehensive-the termini on the Atlantic and Pacific being wholly undefined, while the character of the intervening country makes the river and the lakes mentioned necessary features to a greater or less extent of every canal projected in that region. Article VII. is equally inconsistent with the idea that any special canal or special canal company is the subject of it and the preceding articles. The contracting parties thereby agree to give their support and encouragement to the first person or company offering to build the canal-with a preference to any person or company having already got contracts or expended time, money, and trouble on the enterprise-and if the person or company so preferred do not, within a year, furnish evidence of having procured sufficient capital, the contracting parties may then give their aid and encouragement to any other person or company. Finally, to limit the operation of the first seven articles to a particular proposed ship canal of a then existing company is contrary to the general scope and spirit of the whole treaty. As Article VIII. expressly declares, the contracting parties by the convention desired, not only 'to accomplish a particular object, but to establish a general principle.' This general principle is manifested by the provisions of the first seven articles and is that the interoceanic routes there specified should, under the sovereignty of the states traversed by them, be neutral and free to all nations alike. The principle was to be extended to all other practicable communications across the Isthmus by canal or railway, and it is impossible to contend with any show of reason that if the ship canal proposed by a company existing at the time of the treaty failed to be built, any other like canal subsequently projected