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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 complain 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.

$ 318.

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 1816 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 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. Marey, 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 gave 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 Isthinus 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 * jealous atti-

tude.” (MSS. Dept. of State.) 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 39

abundant demonstration that no trans-isthmian telegraphic communication now exists such as was contemplated and falls under the necessary guaranties of the treaty of 1846. That instrument guaranties to us 'equal, tranquil, and constant use’ of whatever means of transit are provided for correspondence,' and the telegraph is assuredly the most important and useful of all such means.

Mr. Bayard, Sec. of State, to Mr. Maury, min. to Colombia, Feb. 25, 1887,

For. Rel. 1888, I. 405.
As to the complaint made by the Central and South American Telegraph

Company, see Mr. Bayard, Sec. of State, to Mr. Becerra, Colombian
min., Jan. 23, 1886, MS. Notes to Colombia, VII. 77; Mr. Bayard, Sec.
of State, to Mr. Scrymser, President of Central and South American

Telegraph Co., Feb. 6, 1886, 158 MS. Dom. Let. 669.
With regard to the monopoly claimed by the Panama Railroad Company of

the telegraph line across the Isthmus, the Colombian minister of for-
eign affairs, December 28, 1887, stated that his Government, availing
itself of the right to construct public works of that kind within its own
territory, had resolved to establish in the Department of Panama a
national telegraph line of which the United States could have the use,
with the assurance that its communications would meet with no obstruc-
tions. Satisfaction was expressed by the United States with this
announcement. (For. Rel. 1888, I. 407-408.)

III. CLAYTON-BULWER TREATY.

1. THE TREATY AND ITS ANTECEDENTS.

$ 351.

April 19, 1850, Mr. John M. Clayton, Secretary of State, and Sir Henry Lytton Bulwer, British minister at Washington, signed at that capital a treaty, the object of which was in the preamble declared to be to set forth and fix in a convention the “views and intentions” of the contracting parties “with reference to any means of communication by ship canal which may be constructed between the Atlantic and Pacific Oceans by the 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.”

By Article I. of the treaty it was provided as follows:

“The Governments of the United States and 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 fortifica

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