(9) CLAYTON-BULWER TREATY (1850).

§ 150f.

The acquisition of California in May, 1848, by the treaty of Gaudalupe-Hidalgo, and the vast rush of population which followed almost immediately on the development of the gold mines to that portion of the Pacific coast, made the opening of interoceanic communication a matter of paramount importance to the United States. In December, 1846, had been ratified a treaty with New Granada (which in 1862 assumed the name of Colombia) by which a right of transit over the Isthmus of Panama was given to the United States, and the free transit over the Isthmus "from the one to the other sea" guaranteed by both of the contracting powers (supra, § 145). Under the shelter of this treaty the Panama Railroad Company, composed of citizens of the United States, and supplied by capital from the United States, was organized in 1850 and put in operation in 1855. In 1849, before, therefore, this company had taken shape, the United States entered into a treaty with Nicaragua for the opening of a ship-canal from Greytown (San Juan) on the Atlantic coast to the Pacific coast, by way of the Lake of Nicaragua. Greytown, however, was then virtually occupied by British settlers, mostly from Jamaica (infra, § 295), and the whole eastern coast of Nicaragua, so far at least as the eastern terminus of such a canal was concerned, was held, so it was maintained by Great Britain, by the Mosquito Indians, over whom Great Britain claimed to exercise a protectorate. That the Mosquito Indians had no such settled territorial site; that if they had, Great Britain had no such protectorate or sovereignty over them as authorized her to exercise dominion over their soil, even if they had any, are positions which, as will be hereafter seen (infra, § 295), the United States has repeatedly affirmed. But the fact that the pretension was set up by Great Britain, and that though it were baseless, any attempt to force a canal through the Mosquito country might precipitate a war, induced Mr. Clayton, Secretary of State in the administration of General Taylor, to ask through Sir H. L. Bulwer, British minister at Washington, the administration of Lord John Russell, (Lord Palmerston being then foreign secretary,) to withdraw the British pretensions to the coast so as to permit the construction of the canal under the joint auspices of the United States and of Nicara gua. This the British Government declined to do, but agreed to enter into a treaty for a joint protectorate over the proposed canal. Of this treaty (Clayton-Bulwer) the following is a summary:

The preamble states that the contracting parties "being desirous of consolidating the relations of amity which so happily subsist between them by setting forth and fixing 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 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."

The treaty proceeds as follows:

“ARTICLE I. The Governments of the United States and of Great Britain, hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship-canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the

Mosquito coast, or any part of Central America; nor will either make use of any protection which either affords, or may afford, or any alliance which either has or may have to or with any state or people, for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying, or colonizing Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America, or of assuming or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection, or influence, that either may possess, with any State or Government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one, 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."

Article II provides that in case of war between the contracting parties vessels of either traversing the canal shall be exempt from blockade, detention, or capture by the other.

By Article III it is provided that, "in order to secure the construction of the said canal, the contracting parties engage that, if any such canal shall be undertaken upon fair and equitable terms by any parties having the authority of the local Government or Governments through whose territory the same may pass, then the persons employed in making the said canal, and their property used or to be used for that object, shall be protected, from the commencement of the said canal to its completion, by the Governments of the United States and Great Britain, from unjust detention, confiscation, seizure, or any violence whatsoever. By Article IV it is provided that "the contracting parties will use whatever influence they respectively exercise with any state, states, or Governments possessing, or claiming to possess, any jurisdiction or right over the territory which the said canal shall traverse, or which shall be near the waters applicable thereto in order to induce such states or Governments to facilitate the construction of the said canal by every means in their power; and, furthermore, the United States and Great Britain agree to use their good offices, wherever or however it may be most expedient, in order to procure the establishment of two free ports, one at each end of the said canal."

The remaining articles are as follows:

"ART. V. The contracting parties further engage that when the said canal shall have been completed they will protect it from interruption, seizure, or unjust confiscation, and that they will guarantee the neutrality thereof, so that the said canal may forever be open and free, and the capital invested therein secure. Nevertheless, the Governments of the United States and Great Britain, in according their protection to the construction of the said canal, and guaranteeing its neutrality and security when completed, always understand that this protection and guarantee are granted conditionally, and may be withdrawn by both Governments, or either Government, if both Governments or either Government should deem that the persons or company undertaking or managing the same adopt or establish such regulations concerning the traffic thereupon as are contrary to the spirit and intention of this convention, either by making unfair discriminations in favor of the commerce of one of the contracting parties over the commerce of the other, or by imposing oppressive exactions or unreasonable tolls upon passengers, vessels, goods, wares, merchandise, or other articles. Neither party, however, shall withdraw the aforesaid protection and guarantee with. out first giving six months' notice to the other.

"ART. VI. The contracting parties in this convention engage to invite every state with which both or either have friendly intercourse to enter into stipulations with them similar to those which they have entered into with each other, to the end that all other states may share in the honor and advantage of having contributed to a work of such general interest and importance as the canal herein contemplated. And the contracting parties likewise agree that each shall enter into treaty stipulations with such of the Central American States as they may deem advisable for the purpose of more effectually carrying out the great design of this convention, namely, that of constructing and maintaining the said canal as a ship communication between the two oceans, for the benefit of mankind, on equal terms to all, and of protecting the same; and they also agree that the good offices of either shall be employed, when requested by the other, in aiding and assisting the negotiation of such treaty stipulations; and should any differences arise as to right or property over the territory through which the said canal shall pass, between the States or Governments of Central America, and such differences should in any way impede or obstruct the execution of the said canal, the Governments of the United States and Great Britain will use their good offices to settle such differences in the manner best suited to promote the interests of the said canal, and to strengthen the bonds of friendship and alliance which exist between the contracting parties.

"ART. VII. It being desirable that no time should be unnecessarily lost in commencing and constructing the said canal, the Governments of the United States and Great Britain determine to give their support and encouragement to such persons or company as may first offer to commence the same, with the necessary capital, the consent of the local authorities, and on such principles as accord with the spirit and intention of this convention; and if any persons or company should already have, with any state through which the proposed ship-canal may pass, a contract for the construction of such a canal as that specified in this convention, to the stipulations of which contract neither of the contracting parties in this convention have any just cause to object, and the said persons or company shall, moreover, have made preparations and expended time, money, and trouble on the faith of such contract, it is hereby agreed that such persons or company shall have a priority of claim over every other person, persons, or company to the protection of the Governments of the United States and Great Britain, and be allowed a year from the date of the exchange of the ratifications of this convention for concluding their arrangements and presenting evidence of sufficient capital subscribed to accomplish the contemplated undertaking; it being understood that if, at the expiration of the aforesaid period, such persons or company be not able to commence and carry out the proposed enterprise, then the Governments of the United States and Great Britain shall be free to afford their protection to any other persons or company that shall be prepared to commence and proceed with the construction of the canal in question.

"ART. VIII. 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 practicable communications, whether by canal or railway, across the isthmus which connects North and South America, and

especially to the interoceanic communications, should the same prove to be practicable, whether by canal 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 equal 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."

At the time of the execution of this treaty the British Government claimed dominion over the (1) Bay Islands, including the island of Ruatan, and other islands on the ocean adjoining Honduras; (2) the Mosquito coast; and (3) the Belize, or British Honduras. This dominion the British Government continued after the execution of the treaty to exercise in defiance of the renunciation contained in the first article of the treaty as above given. An attempt was made to remove the collision which was thus provoked by a new treaty (Clarendon-Dallas), which, however, failed from the non-acceptance by Great Britain of the amendments introduced into the treaty by the Senate of the United States. Great Britain, on her side, undertook to at least lessen the cause of offense by negotiating, in November, 1859, a treaty with Honduras, in which she stipulated to surrender to that Republic her claim to Ruatan and the Bay Islands; and in the same year she executed a treaty with Guatemala for the defining the boundaries of British Honduras, or the Belize, as it is more properly to be called. In January, 1860, she entered into a treaty with Nicaragua by which she with some qualifications withdrew from the protectorate over the Mosquito country. These treaties having been, in 1860, communicated officially to President Buchanan, he stated, as will be seen in his last annual message (Dec., 1860), that "the discordant constructions of the Clayton-Bulwer treaty between the two Governments, which at different periods of the discussion bore a threatening aspect, have resulted in a final settlement entirely satisfactory to this Government." (See supra, § 145). But this statement of President Buchanan, as will be seen at the close of this section, is based on the assumption that Great Britain had withdrawn not merely from the technical but from the actual protectorate of the Mosquito country, and had absolutely ceased, as the first article of the Clayton-Bulwer treaty requires, to "take advantage of any intimacy, or use any alliance, connection, or influence" she "might possess with any state or Government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly," for her subjects, "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 of the United States. Whether Great Britain retains, indirectly or directly, her influence over the Mosquito territory, and whether she continues to use her "influence" in Central America in a manner prohibited by the treaty, are questions of fact for subsequent discussion. (See remarks at close of this section, and also infra, §§ 287 ff.)

The following documents explain the position of the executive department of the Government as to the questions which, under the above circumstances, arose on the construction of the treaty.

"In my previous dispatch of this day I have informed your lordship of my having concluded a treaty with Mr. Clayton respecting the construction of a ship communication between the two oceans of the Atlantic and Pacific, and I have there stated to your lordship that there are some slight differences between the original project transmitted home on the 3d of February and the treaty now concluded.

"I have thought it better to explain the nature of these changes, and my reasons for adopting them, in a separate dispatch; and I shall do so, rather according to the manner and time in which they were made than according to the place in the convention in which they occur.

"The first, therefore, I shall refer to is in Article VI, to which are added the words:

"And should any differences arise as to right or property over the territory through which the said canal shall pass between the States or Governments of Central America, and such differences should in any way impede or obstruct the execution of the said canal, the Governments of Great Britain and the United States will use their good offices to settle such differences in the manner best suited to promote the interests of the said canal, and to strengthen the bonds of friendship and alliance which exist between the contracting parties.'

"This addition, in reconsidering the matter, was deemed, both by myself and Mr. Clayton an advantage to the treaty, and a sort of guarantee against future unfriendly disputes between the two Governments as to the subject referred to.

"The second addition agreed to is in Article VII, to which has been added:

"And if any persons or company should already have, with any State through which the proposed ship-canal may pass, a contract for the construction of such a canal as that specified in the convention, to the stipulations of which contract neither of the contracting parties in this convention have any just cause to object, and the said persons or company shall, moreover, have made preparations and expended time, money, and trouble on the faith of such contract, it is hereby agreed that such persons or company shall have a priority of claim over every other person, persons, or company, to the protection of the Governments of Great Britain and the United States, and be allowed a year from the date of the exchange of the ratifications of this convention for concluding their arrangements, and presenting evidence of sufficient cap. ital subscribed to accomplish the contemplated undertaking, it being understood that if, at the expiration of the aforesaid period, such persons or company be not able to commence and carry out the proposed enterprise, then the Governments of Great Britain and the United States shall be free to afford their protection to any other persons or company that shall be prepared to commence and proceed with the construction of the canal in question.'

"I should here state to your lordship that when the treaty was placed under the notice of the chairman of the Committee on Foreign Relations in the Senate, a gentleman of great weight, and of the more importance since he belongs to the dominant party in the chamber of which he is a member, he considered that it would only be fair that the two Governments should give an open and avowed preference by name to an American company which had first conceived and taken steps to carry out the proposed undertaking. This I objected to; but I deemed there could be no objection to giving to any company, under certain fair conditions, such as are specified, the preference that was sought, although those