No. 492.] Mr. Adee to Mr. Merry. DEPARTMENT of State, SIR: I have to acknowledge the receipt of your dispatch, No. 747, of the 19th ultimo, inclosing a copy of a telegram to you from the President of Nicaragua in which he states that the Government of Colombia has detained 16 boxes of revolver cartridges ordered from abroad by the Nicaraguan Government, and requesting that, pursuant to the stipulations of the treaty between the United States and Colombia, the Government of the United States call upon the Government of Colombia not to prevent the free transit across the Isthmus and shipment of said property. Neutrality is the condition of those states which in time of war take no part in the contest." The neutral character of the Isthmus is guaranteed by clause 1, article 35, of the treaty of 1846 between the United States and Colombia. Hostilities within the central zone are prohibited by the effect of the guaranty, which in the same breath guarantees the rights of Sovereignty which New Granada has and possesses over said territory." These rights of sovereignty are restricted only in respect of the conduct by Colombia of hostilities affecting "free transit from the one to the other sea," which must "not be interrupted or embarrassed. But the stipulation is to be taken in connection with the preceding one, viz: "That the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed shall be open and free to the Government and citizens of the United States, and for the transportation" of their articles of produce, merchandise, etc., "of lawful commerce belonging to the citizens of the United States." Article 35 of the treaty further says: And in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages, and for the favors they have acquired by the fourth, fifth, and sixth articles of this treaty, the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory. The treaty was made for the benefit of the contracting parties and does not impair the sovereign rights of Colombia to lay any sort of embargo on the traffic and transportation of the goods of other governments or of their citizens or subjects. While we keep the free and open transit of the Isthmus, it is not done in the interest of other states who have no right to invoke the application of the treaty; and although they may incidentally profit by it, this is a mere incident to the execution of the treaty for the purposes and objects expressly specified. I am, etc., ALVEY A. ADEE, No. 757.] Mr. Merry to Mr. Hay. LEGATION OF THE UNITED STATES, SIR: I have the honor to forward herewith copy and translation of telegram received last evening from President Zelaya, of Nicaragua, and my reply thereto. Since receipt of your No. 492 of August 5 I have awaited information from the United States consul-general at Panama in relation to the merchandise therein alluded to, shipped from New York to Corinto on through bill of lading and seized by Colombian authorities on the Isthmus as the property of the Nicaraguan Government. Consequently I have not as yet communicated to President Zelaya your decision in relation to the transit of such merchandise which, under the present conditions, closes the Isthmus to his Government. You will note by President Zelaya's telegram herewith inclosed that the 16 boxes of revolver cartridges alluded to have been returned to New York, whence they were shipped. Carefully reading the treaty of 1846 with New Granada it appears to me that, independent of your decision that said treaty "is not in the interest of other states, who have no right to invoke the application of the treaty," article 17 thereof especially exempts the free transit of munitions of war, at the option of the Government of New Granada (now Colombia). Possibly this may be a more agreeable argument to present the Nicaraguan Government than that above quoted. Certainly it has been the generally accepted idea in Central and South America that the United States guarantee the free transit across the Panama Isthmus of all classes of merchandise except contraband of war, the property of any nation with which the United States or Colombia may be at war when such transit is attempted. You will notice that this is apparently the opinion of the United States consul-general at Panama, as set forth in his No. 316 of July 21, to the Department, since, had he considered the interference usual or authorized, no report thereof would have been necessary. You will also note that President Zelaya construes the treaty in the same manner, claiming free transit for munitions of war because "there is no state of war" between Nicaragua and Colombia, when both their Governments have recently permitted the use of their armed vessels to commit acts of war against each other. If I am correctly informed, a formal "declaration of war" is not a necessity in inaugurating hostilities with another power. * * Having your instructions in this connection, as set forth in your No. 492, of August 5, I shall be guided thereby, but have deemed it proper to inform you of the second request of President Zelaya, as set forth in his last telegram. With assurances, etc., WILLIAM LAWRENCE MERRY. [Inclosure 1.] President Zelaya to Mr. Merry. [Telegram.-Translation.] PRESIDENTIAL MANSION, Managua, Nicaragua, August 30, 1902. I regret to inform you that a box has been detained at Panama, marked "A. C. No. 1," containing a gun, two bayonets, and accessories, consigned to the chief of the customs, Corinto, that the consul of Nicaragua, Don Albert Gomez, sends to me from Hamburg, a proceeding that the agent of the railroad in Panama asserts has been ordered by the governor of that port. I permit myself to advise you of this, begging you to please interpose your good offices with the United States consul-general in Panama to the effect that this box may be sent me without delay, because the free transit of the railroad of Panama being guaranteed by the American Government, and there being no state of war between our country and Colombia, I fail to find the occasion that can give cause for the infraction of a treaty in force, as has happened before in detaining and returning to New York a certain quantity of revolver cartridges that our minister of hacienda had ordered, of which you have already had advice, and with that which I now advise you regarding the box sent from Hamburg for me. I hope that in attention to my second petition you will also place before the Secretary of State the irregularity committed by the local government of Panama with the merchandise that comes consigned to our country with the object that acts of such notorious injustice shall receive efficacious reparation, since, by the treaty before referred to, it is the American Government upon whom it is incumbent to guarantee the free transit through the Panama Isthmus, as I have reminded you above. J. S. ZELAYA. With assurances, etc., [Inclosure 2.] Mr. Merry to President Zelaya. [Telegram.] LEGATION OF THE UNITED STATES, Telegram received. Will immediately address Secretary of State, Washington, in relation thereto. Will write particulars by next mail via Corinto. Mr. Adee to Mr. Merry. MERRY. No. 500.] DEPARTMENT OF STATE, Washington, September 12, 1902. SIR: I have received your dispatch No. 757 of the 31st of August in reply to my instruction No. 492 of August 5 in relation to the reported detention upon the Isthmus by the Government of Colombia of certain munitions of war ordered from abroad by Nicaragua. You state that, as you have been awaiting information from the United States consulgeneral at Panama in relation to the merchandise in question, which had been shipped from New York to Corinto on through bill of lading and seized by the Colombian authorities on the Isthmus as the property of the Nicaraguan Government, you had not as yet communicated to President Zelaya my decision in relation to the transit of such merchandise, which, you say, "under present conditions closes the Isthmus to his (the Nicaraguan) Government." Feeling some hesitancy to communicate to President Zelaya the views contained in my instruction of August 5, you suggest that you represent the refusal of Colombia to permit the transit as based upon article 17 of the treaty of 1846 with New Granada, which "especially exempts the free transit of munitions of war at the option of the Government of New Granada, now Colombia," and you add that the declaration of President Zelaya, in his telegram to you of August 30, that "there is no state of war between Nicaragua and Colombia," does not exclude the use of the option conferred by article 17, inasmuch as "a formal declaration of war is not a necessity in inaugurating hostilities with another power." It is not perceived that the provisions of article 17 of the treaty of 1846 have any application to the present case, as that article refers to the liberty of commerce and navigation to be enjoyed by the vessels of the United States and New Granada during the existence of any war in which either of the contracting parties may be engaged. The liberty of commerce and navigation enjoyed by vessels of the United States is not interfered with by the action of Colombia in refusing to permit the transit across her territory of the arms in question. Neither does such action constitute an infraction of article 35 of the treaty, which provides for the free transit across the Isthmus of produce, manufactures, or merchandise belonging to citizens of the United States. The arms referred to are circumstantially stated to be the property of the Nicaraguan Government. There appears to be no occasion for this Government to determine whether or not a state of war exists between Nicaragua and Colombia. My instruction of August 5 was not intended to justify the stoppage of the arms by the Colombian Government, but showed that under our treaty with Colombia we enjoyed no right to remonstrate against the stoppage, and therefore could not intervene in what appeared to be a question solely between Colombia and Nicaragua. It would evidently not be appropriate for this Government to express a judgment as to the merits of the case and take ground adversely to either party by declaring that the stoppage of the arms either was or was not rightful. I am, etc., ALVEY A. ADEE, ACCIDENT TO PRESIDENT ROOSEVELT. President Regalado to President Roosevelt. [Telegram.-Translation.] SAN SALVADOR, September 10, 1902. I express to Your Excellency the painful sentiments caused me by the occurrence that befell you, and I beg you to accept the expression of my sympathy for that unfortunate event. TOMAS REGALADO. President Roosevelt to President Regalado. [Telegram.] WHITE HOUSE, Washington, September 12, 1902. I thank you for your highly appreciated message of sympathy. THEODORE ROOSEVELT. PERSIA. RAILWAY CONSTRUCTION MONOPOLY IN PERSIA HELD BY No. 4.] RUSSIA. Mr. Griscom to Mr. Hay. LEGATION OF THE UNITED STATES, SIR: I have the honor to inform you that in view of the many inquiries received at this legation in regard to the possibility of obtaining concessions for the construction and operation of railroads in Persia, I have recently put the question to the grand vizier and was informed by him that an agreement exists between the Persian and Russian Governments whereby no railroads shall be constructed in Persia excepting by Russians or the Russian Government for a period of ten years from the accession of the present Shah. This agreement has seven years still to run, wherefore it will be impossible for any of our citizens to obtain a valid railroad concession until the termination of this period. I have, etc., LLOYD C. GRISCOM. ACCIDENT TO PRESIDENT ROOSEVELT. The Shah of Persia to President Roosevelt. [Telegram.-Translation.] PARIS, September 4, 1902. I am infinitely sorry for the untoward mishap, and happy to hear that injury is slight. Wish Your Excellency speedy recovery. MOUZAFFER ED-DINE. President Roosevelt to the Shah of Persia. [Telegram.] WHITE HOUSE, Washington, September 4, 1902. I thank Your Majesty for your solicitous message. THEODORE ROOSEVELT. |