no result for such a course, since, under the circumstances that surround the debate, there is, on the part of your excellency's Government, no opinion to form, but a decision already reached. "I therefore confine myself to submitting a few remarks on your excellency's position in regard to my request that the pending difference be referred to The Hague tribunal. "True, it lies with the several states to recognize a new member of the family of nations; but haste and circumstances may always involve a disregard of international law while profession is made to maintain it. "The recognition of a new state separated from a friendly nation would be a legitimate act on the part of foreign nations, in so far as they observe strict neutrality between the contesting parties; but it is a violation of the principles that govern the relations of the international community when one of the belligerents is hindered from the exercise of his rights and the use of his forces, and much more so when a public treaty is infringed. The treaty of 1846 being in force between the Governments of the United States and of Colombia, the dilemma that confronted the former when the movement occurred at Panama may not have been that which your excellency comtemplates, but rather the following: Either to recognize that Panama was an integral part of Colombia or invest it with the character of a separate entity. "In the first case, whatever be the position of your execllency's Government touching neutrality in intestine strifes, it had no cause for preventing Colombia from subduing the rebellion; in the other case the Government of the United States was obligated to enforce the respect of Colombian sovereignty, and, in either event, it is as untenable a proposition in law to hold obligations toward a nation as fulfilled in one of its rebellions or separated provinces as, in mathematics, to insist that the part and the whole are equivalent. And it is fit here to observe that the reason why I asserted to your excellency that if I had not been prevented from landing the forces under my command on the 19th of November, fifteen days after the rebellion had broken out, it would have been immediately smothered, is that the garrison bought off in Panama did not exceed 200 men. "At the close of the first of the notes hereby answered, your excellency, referring to my proposal to refer to the arbitration of The Hague tribunal the claims that my country desires to have settled in an amicable and decorous manner, states that the questions presented in my statement of grievances 'are of a political nature such as nations of even the most advanced ideas as to international arbitration have not proposed to deal with by that process.' I must point out to your excellency that the infringement of the treaty of 1846 has resulted in civil consequences of the greatest import which do come within the scope of the jurisdiction of courts. Colombia, for instance, has no claim against Germany, France, England, etc., by reason of the recognition of Panama as an independent State, little as the proceeding may be a friendly act, because she had and has no treaty with those countries that made them guarantors of her sovereignty and ownership; but with your excellency's Government the case is very different, for reasons that may be ignored but which will live as long as the sense of justice, slow but sure, shall endure in this world. "The injuries that Colombia has already suffered and will continue to suffer in consequence of the infringement of the treaty are manifest and actual, and the refusal to entertain her claims as well as her lacking the strength to secure redress put her under the painful necessity of asking of the mighty Government and people of the United States that the tribunal called upon to decide her case be one of unquestionable standing and impartiality. I have such a high opin-ion of your excellency's sound judgment that I still permit myself to hope that it will bring about a reconsideration of your decision or a suggestion to my Government of some other means of doing Colombia justice in a manner compatible with her honor. And "I see from the second paragraph of your excellency's note of the 9th instant that the American Government does not and can not consider as a declaration of war on the part of Colombia the fact that the army of my country should enter Colombian territory, as is that of Panama, for the purpose of subduing the rebellion. This makes me confident that there will be no conflict between the Colombian and American forces when the former take the field on the Isthmus. I have to point out here that, contrary to the statement made in official documents, Panama never was independent or belonged to any nation other than Colombia since the latter gained her independence. All of the royal letters patent issued from 1533 to 1803 incorporated the provinces of Darien, Portobelo, and Veragues, which embraced the whole territory of the Isthmus, into the viceroyalty of the new kingdom of Granada. The declaration of 1821, made by those provinces when New Granada had already cleared the country of the enemy that held the former viceroyalty under its yoke, was nothing more, in fact, than the sanction of the uti possidetis of 1810, the main foundation of the rights of all Spanish-American countries. "I profoundly regret, on the failure of the mission which was intrusted to me, that my well-meant efforts to reach a fair and honorable settlement with your excellency's Government have thus far been in vain, and compelled, as I am thereby, to depart, I once more confirm the contents of my previous notes and, in the name of Colombia, enter a solemn protest against the denial of justice inflicted on my country by one of the most powerful governments in the world, bound by its very power to be equitable, and put on your excellency's Government the responsibility for all evils to come. Being unable, under existing circumstances, to take personal leave of the most excellent President and of your excellency, I beg you will accept this excuse and the expression of my thanks for the personal attentions I have received at the hands of all the members of the Administration.” Gen. Reyes, special minister of Colombia, to Mr. Hay, Sec. of State, Jan. 11, 1904, Mr. Hay's note of "I have the honor to acknowledge receipt of your excellency's communication of the 11th of January, 1904, in which you ask that this Government shall reconsider its decision in regard to the submission of the claims of Colombia to the arbitration of The Hague, or, as an alternative to this you invite a suggestion to your Government of some other means of doing Colombia justice in a manner compatible with her honor. "In reply I beg to inform you that this Government sees no reason to reconsider its attitude in these matters, which has been adopted after mature deliberation and reflection. "Referring to your communication above mentioned, and also to the conversation which I had the honor to hold with your excellency on the same day, I am now instructed by the President to make the following suggestion. This Government is now, as it always has been, and as I have frequently had the honor to inform your excellency, most desirous to lend its good offices for the establishment of friendly relations between the Republic of Colombia and that of Panama. We think that they might be exercised with a hope of a favorable result if Colombia, as may be inferred from our interchange of views, should consider that the conditions necessary to its recognition of the existing state of things are: "First. To submit to a plebiscite the question whether the people of the Isthmus prefer allegiance to the Republic of Panama or to the Republic of Colombia. "Second. To submit to a special court of arbitration the settlement of those claims of a material order which either Colombia or Panama by mutual agreement may reasonably bring forward against the other, as a consequence of facts preceding or following the declaration of independence of Panama.” Mr. Hay, Sec. of State, to Gen. Reyes, special minister of Colombia, Jan. 13, 1904, H. Doc. 551-vol 3- -8 (2) PASSPORTS. § 345. With reference to complaints that the consul of New Granada at New York required citizens of the United States embarking for the Isthmus to obtain passports from him, the Department of State said that, although, according to the letter of the treaty of 1846, if citizens of New Granada who were about to return home were by the laws of that Republic required to obtain passports from the New Granadian consul at the port of embarkation, United States citizens might be expected to pursue the same course, yet, when the motives of the two governments in entering into the stipulations concerning the Isthmus were considered, the requirement referred to "would seem to be adverse to the spirit of the instrument." "The exaction of passports from travelers in time of peace is," affirmed the Department, "a restriction upon personal freedom scarcely compatible with republican institutions." It was difficult for citizens of the United States "to understand the necessity for its adoption in New Granada," and, being aware of the weighty obligations of their Government with regard to the Isthmus, it was "particularly repugnant to their feelings to apply for passports across it to consuls of New Granada.” This sentiment "might be mitigated if such passports were gratuitously furnished," as were those of the Department; but, as the contrary was the case, the practice of requiring them would give rise to acts which the United States could not prevent and which it would seem impolitic for New Granada to provoke without a clear necessity therefor. The existing good feeling in the United States toward New Granada should be preserved and strengthened; and the New Granadian Government therefore should be informed "that the practice of requiring New Granadian passports for our citizens crossing the Isthmus will be certain to impair this sentiment, especially if a fee is required for them, and that this Government expects, in view of the advantages which New Granada has obtained by the treaty, that the practice will be discontinued.” Mr. Clayton, Sec. of State, to Mr. Foote. min. to Colombia, April 13, 1850, MS. Inst. Colombia, XV. 142; Mr. Clayton, Sec. of State, to Messrs. Livingston, Wells & Co., April 13, 1850, 37 MS. Dom. Let. 504. See, infra, § 357, as to treaty of 1867 with Nicaragua. (3) TRANSIT OF THE MAILS. § 346. A postal convention, with special reference to the transit of the Isthmus, was concluded between the United States and New Granada, March 6, 1844. Correspondence subsequently took place with refer ence to arrangements for the carriage of the mails and the payment of postage." The convention required payment for the transportation of the United States mails to be made in dollars, but no standard dollar was mentioned. The United States maintained that the convention was complied with by the tender of a standard dollar of Spain or Mexico, containing eight reals, instead of a New Granadian dollar, estimated at ten reals." It was stated in 1866 that it could not be ascertained from the records of the Department of State that the convention had been terminated by notice pursuant to the stipulations of its 9th article. In 1876 it was stated that, as it was not in terms abrogated by Art. XXXV. of the treaty of 1846, and as no notice of termination appeared to have been given, it might be regarded "as technically in full force," but that it might, nevertheless, be allowed to have been practically abrogated by the treaty of 1846, followed as this instrument soon was by the acquisition of California by the United States;" and, "as a proof of the obsolete character" of the convention, it was remarked that it provided for the carriage of the United States mails in men of war to Chagres or Porto Bello.d By the charter of the Panama Railroad Company, the company possessed the right to transport mails across the Isthmus and to receive pay for the service; and by a decree of May 31, 1851, the Government of New Granada vested in the company all right and control over the subject. For the exercise of the privilege, the company agreed to pay the State of Panama 5 per cent. on the compensation it should receive for the transportation of foreign mails. By an agreement with the United States, the company received 22 cents a pound for the transportation of the American mails across the Isthmus. The aggregate amount paid to the company under this arrangement in 1855 was about $125,000. April 25, 1856, the New Granadian Congress passed an act imposing, for the privilege thus liberally paid for through the company, "the enormous sum of $3.20 for every pound of mail matter which may pass the Isthmus within her territory." The amount which would thus be exacted was estimated at from $300,000 to $2,000,000 per annum. The United States protested against the measure, on the ground that it could not be applied to the United States mails "without a violation of the existing treaty between the a Mr. Clayton, Sec. of State, to Gen. Herran, Colombian min., June 30, July 18, 1849; to Mr. Rivas, Colombian min., Jan. 29, March 26, May 15, 1850: MS. Notes to Colombia. VI. 10, 12, 15, 18, 19. Mr. Clayton, Sec. of State, to Mr. Foote, min. to Colombia, June 15, 1850, MS. Inst. Colombia, XV. 145. Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Nov. 12, 1866, MS. Inst. Colombia, XVI. 207. d Mr. Fish, Sec. of State, to Mr. Scruggs, min. to Colombia, June 3, 1876, MS. Inst. Colombia, XVII. 21. |