2. That the tax violated the stipulation for a "free" transit, besides arbitrarily assuming a certain standard of profit.

3. That it was opposed to what had been the well understood policy of New Granada, as shown by art. 34 of the charter granted to the Panama Railroad Company, May 29, 1850, which guaranteed that passengers, merchandise, and effects of every kind, transported across the Isthmus from ocean to ocean by the railroad, should be exempt from taxes and imposts, whether national, provincial, municipal or of any other species.

Mr. Marcy, Sec. of State, to Mr. Green, Feb. 16, 1854, MS. Inst. Colombia,
XV. 177.

April 4, 1854, Mr. Green wrote that the New Granadian minister of foreign
relations had “expressed it as the fixed determination of the Govern-
ment to remove every impediment to the full enjoyment of the rights
of transit across the Isthmus, according to concessions heretofore made;
and that this passenger tax should not be enforced because of its con-
flict with these resolutions." (Mr. Cass, Sec. of State, to Mr. Jones,
min. to Colombia, April 30, 1859, MS. Inst. Colombia, XV. 268.)

Oct. 26, 1854, the provincial assembly of Panama by a new law restored the more profitable tax of $2 per capita on passengers embarking in the Bay of Panama. The Supreme Court of New Granada, April 23, 1855, however, on motion of the Attorney-General, declared the provincial laws of Nov. 17, 1853, and Oct. 26, 1854, to be null and void, as unconstitutional.

Mr. Marcy, Sec. of State, to Mr. Bowlin, min. to Colombia, Feb. 3, 1855, MS.
Inst. Colombia, XV. 199; Mr. Hunter, Act. Sec. of State, to Mr. Bowlin,
July 31, 1855, id. 205; Mr. Marcy to Mr. Bowlin, Aug. 31, 1855, id. 207.
In the instruction last mentioned, Mr. Marcy, referring to the report that
the authorities of the State of Panama would, in spite of the decision
of the Supreme Court, renew the tax, intimated that the United States
would if necessary station a vessel of war at Colon and Panama to protect
American citizens and vessels from the exaction.
"If the exaction should be made of your captains and agents, it might, in
the first instance, be resisted, if there should be any means for judi-
cially testing its legality. The Department does not feel justified, how-
ever, either in directing the payment of the tax, or in advising a per-
emptory disregard to the local law imposing it. But if there should
be no means of testing the legality of the tax before the tribunals (as is
suggested above), the payment, if made by the officers or agents of the
company, should be accompanied in each case by a formal protest, until
the result of an application on the subject which the United States min-
ister at Bogotá has been instructed to make to the Government of New
Granada shall be known, or other measures shall be adopted by this
Government." (Mr. Marcy, Sec. of State, to Mr. Roberts, Pres. U. S.
Mail S. S. Co., N. Y., Sept. 3, 1855, 44 MS. Dom. Let. 299.)
See, in the same sense, Mr. Marcy, Sec. of State, to Mr. Davidge, Pres. Pac.
Mail S. S. Co., Aug. 7, and Aug. 28, 1856, 45 MS. Dom. Let. 432, 480.
See, also, Mr. Marcy to Mr. Davidge, Jan. 20, 1857, 46 MS. Dom. Let. 256.
See Mr. Cass, Sec. of State, to Gen. Herran, Colombian min., Sept. 10, 1857,
MS. Notes to Colombia, VI. 71.

As to the question of the laying of taxes under the constitution of Colom-
bia, the following may be noticed:

"Your dispatch of September 12th, No. 50, has been received.
"The view of the so-called Bolivar tax which you have presented is
approved. It is not doubted that under the constitution of New Granada
of 1858 the General or Federal Government alone has authority to levy
duties on importations under its power to regulate foreign commerce.
Nor does it seem doubtful that the United States having commercial
relations with New Granada regulated by treaty may rightfully com-
plain of any proceedings which affect their commerce in violation of
the national constitution of New Granada, even though the wrong be
committed under the alleged authority of one of the United States which
constitute the national government of New Granada. The imposition
of a tax by the State of Bolivar upon merchandise imported from the
United States and yet remaining in unbroken bulk or package and upon
which duties have been already paid to the National Government, under
the national laws. seems so palpably a violation of the treaty of peace,
amity, commerce and navigation existing between the two countries
that it is presumed the national authorities will at once take the proper
measures to produce a discontinuance of that injurious measure. You
are instructed to persevere in your efforts to secure that end." (Mr.
Seward, Sec. of State, to Mr. Burton, min. to Colombia, Jan. 30, 1863,
MS. Inst. Colombia, XVI. 53.)

(5) TRANSIT OF TROOPS.
§ 348.

June 6, 1853, Mr. Paredes, chargé d'affaires of New Granada, complained that several hundred United States troops had crossed the Isthmus of Panama in July of the preceding year without the previous permission of the Congress of the Republic. Mr. Paredes complained of this as a violation of the New Granadian constitution. In reply, Mr. Marcy, who was then Secretary of State, said that the Secretary of War had at the time requested the opinion of the Department of State as to whether Art. XXXV. of the treaty of 1846 was intended to embrace the privilege of sending troops across the Isthmus, and that the opinion of the Department appeared to have been "unhesitatingly in the affirmative." That article, said Mr. Marcy, guaranteed that the right of way or transit across the Isthmus should be "open and free to the Government and citizens of the United States." It was obvious that the United States could have no other occasion for the free right of passage thus secured "than to send over that Ithmus persons in its employment in both the military and civil service." The grant was understood by the United States to be full and unqualified, and it could not be regarded as impaired by the provision of the constitution to which Mr. Paredes had referred. The treaty, observed Mr. Marcy, was approved by the Congrees of New Granada, and it could not be supposed that that body, being acquainted with its own prerogatives, would have sanctioned an instrument that was supposed to trench upon them. On the contrary, it was not

improbable that the Congress of New Granada, having in view the provisions of the constitution and well aware that the treaty secured to the United States the right to send troops across the Isthmus, intended, by giving its sanction to the treaty, to confirm the privilege pursuant to the constitution itself. New Granada had, declared Mr. Marcy, received from the United States an ample equivalent for any sacrifices she may have made in entering into the treaty.

Mr. Marcy, Sec. of State, to Mr. Paredes, Colombian chargé d'affaires, June 20, 1853, MS. Notes to Colombia, VI. 35.

The views above expressed were reaffirmed by Mr. Marcy in another note to Mr. Paredes, October 12, 1853, MS. Notes to Colombia, VI. 43.

"The one main object of your mission is an understanding, clear and explicit, with regard to the right we insist upon of transporting our troops over the Isthmus of Panama, either to or from our possessions on the Pacific. We are in condition to make the guarantee we are pledged to effective, and we expect in return the reciprocal benefits arising therefrom, also pledged to us by treaty by the Republic of Colombia."

Mr. Seward, Sec. of State, to Gen. Sickles, special agent to Colombia, March
18, 1865, MS. Inst. Special Missions. II. 35.

Gen. Sickles' principal instructions were dated January 6, 1865. In these
instructions Mr. Seward stated that the governor of Panama had lately
refused Admiral Pearson permission to send across the Isthmus for
embarkation at Aspinwall for New York "the insurgent conspirators
who had been arrested at the former place with authority and instruc-
tions found upon them to seize United States mail steamers on the
Pacific." In connection with this Mr. Seward stated that, while the
treaty did not contain any grant of a specific privilege as to the transit
of either troops or criminals, it certainly was by no forced construction
of the instrument that the privilege was claimed. It might indeed be
said that if the United States could not rightfully transport troops
between Aspinwall and Panama, it could not fulfill one of the principal
objects to New Granada for which the treaty was entered into. (MS.
Inst. Special Missions, II. 29.)
February 27, 1865, General Salgar, Colombian minister in the United
States, informed the Department of State that his Government desired
to regulate in a definitive manner the transit of United States troops
across the Isthmus. (Mr. Seward, Sec. of State, to Mr. Salgar, March
31, 1865, MS. Notes to Colombia. VI. 185.)
Mr. Burton, United States minister to Colombia, reported in his No. 173,
May 13, 1865, that the authorities of the State of Panama refused in
October 1864 to permit United States troops to cross the Isthmus. He
added, however, that in January 1865 the Colombian Government gavę
confidential orders to the authorities at Panama to permit United States
troops, armed or unarmed, and materials of war to cross the Isthmus
without hindrance, at any and all times. (MS. Desp. from Colombia.)
President Murillo gave assurances to General Sickles that satisfactory
instructions would be given to the authorities on the Isthmus with
regard to the transit of United States troops. (Mr. Seward, Sec. of

State, to Mr. Burton, min. to Colombia, June 13, 1865, MS. Inst.
Colombia, XVI. 130, referring to a report from Gen. Sickles of April 17,
1865.)

See, also, Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Sept.
15, and Sept. 27, 1865. MS. Inst. Colombia, XVI. 139, 140.
In acknowledging the receipt of Mr. Burton's 247 of June 26, 1866, setting
forth certain limitations proposed by the president of Panama to the
right of transit of the United States over the Isthmus, but at the
same time expressing the opinion that the proposed change had been
abandoned, the Department of State said: “The United States must be
understood as not assenting to this proposed change in the orders of the
president of Panama of May 13, 1865. But it is perhaps best to avoid
all unnecessary discussion of the matter." (Mr. Hunter, Second Assist.
Sec. of State. to Mr. Burton, min. to Colombia, Aug. 31, 1866, MS. Inst.
Colombia, XVI. 199.)

In September 1865, Mr. Alexander McKee, United States consul at Panama,
died. On the day of the funeral (Sept. 4), Admiral Pearson landed
with a small marine guard, provided with cartridges without balls, and
an unarmed band of music, with a view to attend the ceremonies. He
had given no previous notice of his intentions to the authorities. On
September 6 the president of Panama wrote to the Admiral, complain-
ing of his action, and stating that it was expected that permission would
in future be asked for landing armed forces; that he himself and other
functionaries intended to be present at the funeral but abstained when
they saw the naval forces landed. Further correspondence was
exchanged. Mr. Seward expressed the opinion that the entire con-
troversy was uncalled for. He thought that the admiral should have
given notice of his intentions to the authorities, and that, when he
landed without having done so, they had a right to ask for an explana-
tion, but not of the admiral, who was not the proper person to address
for the purpose. The president of Panama had taken a
tude." (MSS. Dept. of State.)

jealous atti

By a protocol signed February 22, 1879, by Mr. Arosemena, minister of foreign relations of Colombia, and Mr. Dichman, minister resident of the United States at Bogotá, it was declared that, in conformity with the note of the secretary of foreign relations of Colombia to the government of the State of Panama of May 15, 1865, the troops of the United States, as well as prisoners under federal jurisdiction, "can pass as the usual service of its administration, a right which is established in compensation for the guarantee of the sovereignty and property of the isthmus, to which the same government is bound." The protocol was approved by the Colombian Senate and also by the Secretary of State of the United States.

Moore on Extradition, I. 714-718; For. Rel. 1879, 273-277, 284.

(6) FUGITIVES FROM JUSTICE.
$ 349.

In 1878 one Scrafford, who had been delivered up by Peru to the United States on a charge of forgery, was about to be taken across the Isthmus of Panama by the agent of the United States, when he

was released by the governor of Panama. The United States complained, and negotiations were entered upon for a definition of the right of transit under Art. XXXV. of the treaty of 1846. The negotiations resulted in the conclusion, February 22, 1879, of a protocol by which the right of transit of the Government of the United States, in respect of fugitives from justice, as well as of military forces, was recognized by the Government of Colombia. By a supplementary protocol of October 23, 1879, it was provided that the custody of prisoners, whose transportation across the Isthmus should be requested by the United States, should be kept by a civil officer of the United States, accompanied by a Colombia civil officer, who should ask the proper authorities, if necessary, for the assistance of the national or State forces, in order to secure the due detention and transportation of the prisoner.

Moore on Extradition, I. 713-718; For. Rel. 1878, 151-155; For. Rel. 1879, 251-254, 271, 273-277, 284; For. Rel. 1880, 319, 322.

In January 1865 Mr. Seward complained that the governor of Panama had lately refused Admiral Pearson permission to send across the Isthmus for embarkation at Aspinwall for New York "the insurgent conspirators who had been arrested at the former place with authority and instructions found upon them to seize United States mail steamers on the Pacific." (Mr. Seward, Sec. of State, to Gen. Sickles, Jan. 6, 1865, MS. Inst. Special Missions, II. 29. See supra, § 348.)

(7) TELEGRAPHIC COMMUNICATION.

§ 350.

In January 1886 complaint was made by the Central and South American Telegraph Company of New York that the operations of the French Panama Canal Company in the Bay of Panama were endangering the cable of the former company at that point. The matter was brought to the attention of the Colombian minister at Washington, who invoked, by cable, the interposition of his Government.

The French company avowed its control of the land line of telegraph operated in connection with the Panama Railroad Company, and asserted its determination to retain the monopoly alleged to have been derived from the railroad concession, while the railroad company gave notice on its part that the wire was "a private wire" and that messages between Panama and Colon were sent "by courtesy." In this relation the Department of State said: "It is very evident, without resorting to elaborate argument, that if telegraphic facilities are among the means of interoceanic communication covered by the treaty [of 1846], they must be open and public and their free and neutral use fully secured. The announcement that the railroad and canal companies' telegraph line from Colon to Panama is a private wire, and that the use of it by the Governments of the United States and Colombia and by the commercial public is permissive only, is, if true, H. Doc. 551-vol 3-9