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A new treaty was proposed by the Colombian legation at Washington, but

the negotiations did not result in an agreement. (Mr. Fish, Sec. of
State, to Señor Martin, Colombian min., Dec. 6, 1872, and June 7 and

Aug. 8, 1873, MS. Notes to Colombia, VI. 303, 311, 314.)
In answer to the statement that Colombia would expect a positive obliga-

tion to construct the canal, Mr. Fish replied that it was not likely that
the United States would under any circumstances assume such an obli-
gation, and that the question how far the United States might, pursuant
to a convention with Colombia, extend its protection to a private enter-
prise of citizens of the United States for that purpose, must depend on
the conclusion, which had not yet been reached, as to the practicability
of the canal and the most eligible route for the work. (Mr. Fish, Sec.
of State, to Señor Martin, Colombian min., Aug. 8, 1873, MS. Notes

to Colombia, VI. 314.) The Government of the United States subsequently reserved its decision as

to whether it would send an engineer or any other person to join in a
proposed survey of a part of the territory of Colombia by a “committee"
of an "international association in Europe,'' till information should be
received of the character of the proposed expedition, and whether any
European government had appointed a member of the committee or had
designated an engineer or other representative to make or unite in the
survey. (Mr. Fish, Sec. of State, to Mr. Perez, Dec. 20, 1876, MS.

Notes to Colombia, VI. 327.)
Mr. Fish had previously stated that the United States did not object to

taking part in a conference of maritime powers at Constantinople for
the purpose of dealing with questions “connected with the Suez Canal
dues." It was stated that the minister of the United States at Constan-
tinople had been instructed accordingly, but had not been authorized
to commit his Government to any conclusion which might be reached,
till there should have been an opportunity to examine the results of the
conference. (Mr. Fish, Sec. of State, to Sir Edward Thornton, British
min., Jan 14, 1873, MS. Notes to Great Britain, XVI. 15.)

(5) NEGOTIATIONS OF 1881.

$ 342.

Feb. 17, 1881, Mr. W. H. Trescot, representing the United States, and Gen. Santo Domingo Vila, representing Colombia, signed at New York a protocol which purported to set forth the views of the two Governments with reference to the execution of Art. XXXV. of the treaty of 1846. It declared that any interoceanic communication through the Isthmus of Panama, by canal or otherwise, should be as free and open to the Government and citizens of the United States as to the Government and citizens of Colombia, "except in case, which God forbid, of war between the two nations." The two Governments were by common accord to select such points on the isthmus as they might deem proper for military and naval purposes and to provide by convention for the occupation and establishment of such places; and the United States, if occasion should arise for the performance of the guarantee of 1846, was authorized to occupy and hold the threatened territory during the exigency, in cooperation with the Colombian forces. But, in time of peace, and when no exigency existed, only Colombian military forces were to be stationed in the Colombian territory. It was further agreed that, while the use of the canal in time of peace by the war vessels of other powers was not to be considered as a right, the two Governments would declare it open to the innocent use of such vessels, subject to such regulations and restrictions as they might jointly adopt.

Mr. Evarts declared, as Secretary of State, that the agreement on the points embraced in the protoco' met his views and had received the approval of the President.

The Colombian Government, however, declined to approve the protocol, on the ground that it was at variance with the instructions of the Colombian negotiator, and with the means which Colombia deemed "best adapted to prevent any extension of the obligations contracted by both nations by the treaty of 1846" and to avoid the dangers which might arise from the construction of the canal.

For. Rel. 1881, 361-388, where correspondence and documents are given.
- The United States Government has not abandoned its right to insist that as

guarantor of the neutrality of transit and sovereignty of Colombia over
isthmian territory its consent was and will be necessary to the validity of
any concession which might affect the conditions of the guarantee, but it
has simply, presently accepted such a practical recognition of its rights
as guarantor as will enable the Govornment to maintain its rights
under the treaty of 1846 whenever the necessity for such maintenance
shall arise, and you will govern any representations you may make
accordingly. This will leave for further consideration the value
and importance of requiring a firm stipulation that no new concession
or modification of concession can be made without the concurrent
approval of its terms by the United States as not objectionable treat-
ment of the subject of our treaty engagements with Colombia—that is
to say the Isthmus of Panama and interoceanic communication." (Mr.
Evarts, Sec. of State, to Mr. Dichman, min. to Colombia, Feb. 18, 1881,

MS. Inst. Colombia, XVII. 229.)
See, also, Mr. Evarts to Mr. Dichman, Feb. 5, 1881, MS. Inst. Colombia,

XVII. 208.

2. GUARANTEE OF NEUTRALITY AND SOVEREIGNTY.

$ 313.

“The obligations we have assumed [by the guarantee of the neutrality of the Isthmus) give us a right to offer, unasked, such advice to the New Granadian Government, in regard to its relations with other powers, as might tend to avert from that Republic a rupture with any nation which might covet the Isthmus of Panama.”

Mr. Clayton, Sec. of State, to Mr. Foote, mirr. to New Granada, July 19,

1849, MS. Inst. Colombia, XV. 124.

“Your letter of the 8th instant has been duly received and submitted

to the President, in which you inquire what interpretaAnswer to Peru

tion is placed by the Government of the United States vian inquiry.

upon the thirty-fifth article of the treaty of the 12th of December, 1846, by which they guarantee positively and efficaciously to New Granada the perfect neutrality of the Isthmus of Panama.

“The general scope and design of this stipulation are of course entirely apparent, and are set forth very distinctly in the article referred to; and your enquiry must therefore be understood to apply to the particular measures proposed to be adopted, on the occurrence of events menacing the neutrality of the Isthmus.

"The treaty being a compact between the United States and New Granada, to which no other government is a party, it might not be strictly proper nor in all respects convenient to enter into explanations with a third power, as to any measures which the United States might think it proper to adopt, if the neutrality of the Isthmus should be menaced. It may, however, be safely presumed that the magnitude of our interests in that quarter would dictate the pursuit of the policy best calculated to promote the desired end.

"But the latter portion of your note appears to contemplate the possibility that New Granada might avail herself of this guaranty of the neutrality of the Isthmus, to make it the seat of hostile preparations against Peru, and in that case the guaranty of neutrality would in effect become a defensive alliance between New Granada and the United States, by which Peru would suffer.

"Sincerely interested in the welfare of each of these powers, and sensible of the evils which would result to them and the inconvenience which would be occasioned to the commerce of the United States by a rupture between them, this government would view such an event with extreme regret, and would be prepared at any moment, and at the request of either party, to interpose their good offices to prevent it.

“I gather from your note of the 8th that the Peruvian government would deem it for their interest that the neutrality of the Isthmus should be respected by all other powers, as well as the United States. If the Peruvian Government thought proper to make a formal suggestion of this kind and a wish to become a party to the agreement, the government of the United States would receive such a suggestion with pleasure, and would communicate it to that of New Granada, with an intimation on our part that it would be agreeable to the United States that Peru should be associated by a proper public arot, in the guaranty of the neutrality of the Isthmus." Mr. Everett, Sec. of State, to Mr. Osma, Peruvian min., Feb. 92, 1853, MS. “I recommend to Congress the passage of an act authorizing the President, in case of necessity, to employ the land and naval forces of the United States to carry into effect this guaranty of neutrality and protection. I also recommend similar legislation for the security of any other route across the Isthmus in which we may acquire an interest by treaty."

Notes to Peruvian Leg. I. 79.

(Richardson's Mes

President Buchanan, annual message, Dec. 8, 1857.

sages and Papers, V. 447.)

In 1864 the minister of foreign affairs of Colombia, in expectation

of a war between Peru and Spain, in which the Opinion of At- latter power might wish to send troops across the Isthtorney-Gener

mus of Panama, addressed a note to the minister of al Bates.

the United States at Bogotá, setting forth the expectation of the Colombian Government that the United States would carry into effect its guarantee of the neutrality of the Isthmus, as stipulated in Article XXXV. of the treaty of 1846. Mr. Seward submitted a copy of this note to the Attorney General of the United States, with a request for his opinion as to whether the article bound the United States forcibly, if need be, if required by Colombia, to interfere to prevent the transportation of troops and munitions of war across the Isthmus for the purpose of carrying on war against Peru. The Attorney General did not directly answer the question, but intimated that it related, at least potentially, to something substantially different in effect from the guarantee of the “perfect neutrality” of the Isthmus.

Mr. Seward, Sec. of State, to Mr. Bates, At.-Gen., Aug. 16, 1864, 65 MS.

Dom. Let. 523; Bates, At.-Gen. (Aug. 18, 1864), 11 Op. 67; Mr. Seward,
Sec. of State, to Mr. Burton, min. to Colombia, Aug. 20, 1864, MS. Inst.

Colombia, XVI. 108.
The opinion of Attorney General Bates has been cited as holding that the

guarantee of neutrality would oblige the Government of the United
States to prevent such acts as those above mentioned, if it should be
called upon by the proper party to do so. The opinion, however, does
not directly meet the point, although the fact that it inveighs against
the guarantee, as imposing on the United States an onerous burden,
might seem to indicate an understanding on the part of the Attorney
General that it applied to the case before him. But it is obvious that
there is an essential difference, from the point of view of neutrality,
between the passage of armed forces and the mere mercantile convey-
ance of munitions of war. On the whole, the opinion does not appear
to afford any definite result.

The United States does not think itself bound to give explanations to the Government of Colombia as to the form of proceedings which it might suppose to be proper if occasion should arise for the landing of troops or naval forces in order to guarantee the sovereignty of Colombia. The treaty and the law of nations must regulate the action of both governments should such an emergency unhappily arise.

Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, April 30, 1866,

MS. Inst. Colombia, XVI. 168, 189.

“A principal object of New Granada in entering into the treaty is understood to have been to maintain her sovereignty over the Isthmus of Panama against any attack from abroad. That object has been fully accomplished. No such attack has taken place, though this Department has reason to believe that one has upon several occasions been threatened, but has been averted by warning from this Government as to its obligation under the treaty. This Government has every disposition to carry the treaty into full effect."

Mr. Fish, Sec. of State, to Mr. Perez, Colombian min., May 27, 1871, For.

Rel. 1871, 247, 248.

Our guarantee of neutrality to the Isthmus of Panama furnishes no ground for any action by this Government in restraint of the transportation of munitions of war to belligerents in a war as to which our Government is neutral.

Mr. Evarts, Sec. of State, to Mr. Sherman, Sec. of Treas., Nov. 14, 1879,

130 MS. Dom. Let. A copy of this letter was sent to Mr. Dichman, minister of United States at

Bogota, with the statement that care should be taken “to avoid con-
fusing in any way the neutrality of the Isthmus, as now under consid-
eration, with the rules of neutrality which Colombia, as a sovereign
state, may feel 'called upon to enforce in all her territory as towards
other nations who may be at war. The construction of our guarantee,
in case a conflict of interests or opinions should then arise, may prop-
erly be reserved for the situation as it may then be presented.” It
appears that the question was raised by representations made to the
minister of the United States at Bogota by the Chilean chargé d'affaires
at that capital, concerning the neutrality of the Isthmus of Panama
during the war between Chile and Peru. (Mr. Evarts, Sec. of State,
to Mr. Dichman, min. to Colombia, Nov, 14, 1879, MS. Inst. Colombia,

XVII. 121.)
By a decree of June 2, 1879, specially referring to the transportation of arms

and munitions of war across the Isthmus, during the existence of the conflict between Peru, Bolivia, and Chile, the Government of Colombia laid down certain rules " as a guide to Colombia, as a neutral power." By these rules it was declared that the Panama railway should universal commerce as a free way of transit without reference to the origin, species, or destination of goods.” The transit of belligerent troops was, however, forbidden. (70 Br. & For. State Papers, 750.)

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