Page images

that the treaty had been misunderstandingly entered into, imperfectly comprehended, contradictorily interpreted, and mutually vexatious.' But, while earnestly calling for its revision on the ground of radically changed conditions, he made no claim that the treaty was not in being and, indeed, by the very call for revision, conclusively admitted its existence. Mr. Bayard, in 1888, while declining to comment upon any opinions of his predecessors respecting the temporary or perpetual existence of any of the provisions of the treaty, insisted upon them as binding upon Great Britain by her own admissions. From these utterances from the heads of the Department of State, there is but one dissent. Mr. Frelinghuysen, in 1882–83, took the distinct ground that the treaty was, as he expressed it, "voidable,' though, if his argument be admitted to be sound, it is difficult to see why he should not have used the term 'void,' instead of 'voidable.' It remains to examine the grounds of Mr. Frelinghuysen's conclusions, which rest upon two contentions.

"One is that the first seven articles of the treaty relate to a particular ship canal, to be constructed by a particular company, under a particular treaty concession made in 1849; that the treaty and the concession and the company have all passed away without the building of any canal; and that, consequently, these seven articles are obsolete and without any subject-matter upon which to operate. One obvious answer is that this point of Mr. Frelinghuysen, however ingenious, is taken too late; that for thirty years the uniform construction of both Great Britain and the United States, and of the statesmen of each country, has been the other way; that this uniform construction, which each party has so long continuously enforced upon the other as the true construction, now estops each of them from drawing it in question. If it were true that the parties to the treaty, by these first seven articles, were referring only to the particular canal of the then existing company, would the fact not have been known and proclaimed when the treaty was new, and by the very men who made it, and would it have been left to Mr. Frelinghuysen to discover, after the lapse of more than a quarter of a century? But the true answer is to be found within the four corners of the treaty itself, in its general scope and tenor, as well as its particular language. If the first seven articles were meant to apply to the canal of a particular existing company, there is no conceivable reason why that company and its canal should not have been precisely identified by name or in some other unmistakable manner. But the treaty is carefully drawn to exclude any limitations of that sort. The preamble recites that the parties desired to fix 'in a convention their views and intentions with reference to any means of communication by ship canal which may be constructed between the Atlantic and Pacific oceans. The general description of the route-'by 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'is equally general and equally comprehensive--the termini on the Atlantic and Pacific being wholly undefined, while the character of the intervening country makes the river and the lakes mentioned necessary features to a greater or less extent of every canal projected in that region. Article VII. is equally inconsistent with the idea that any special canal or special canal company is the subject of it and the preceding articles. The contracting parties thereby agree to give their support and encouragement to the first person or company offering to build the canal-with a preference to any person or company having already got contracts or expended time, money, and trouble on the enterprise-and if the person or company so preferred do not, within a year, furnish evidence of having procured sufficient capital, the contracting parties may then give their aid and encouragement to any other person or company. Finally, to limit the operation of the first seven articles to a particular proposed ship canal of a then existing company is contrary to the general scope and spirit of the whole treaty. As Article VIII. expressly declares, the contracting parties by the convention desired, not only to accomplish a particular object, but to establish a general principle.' This general principle is manifested by the provisions of the first seven articles and is that the interoceanic routes there specified should, under the sovereignty of the states traversed by them, be neutral and free to all nations alike. The principle was to be extended to all other practicable communications across the Isthmus by canal or railway, and it is impossible to contend with any show of reason that if the ship canal proposed by a company existing at the time of the treaty failed to be built, any other like canal subsequently projected by any other company over the like route is not also within the application of the principle. To hold otherwise, is to hold that the contracting parties, who were settling their relations as to all interoceanic routes across the Isthmus on a permanent basis, failed to anticipate and provide for the most obvious and probable of all contingencies.

“Mr. Frelinghuysen's second proposition is that the treaty is 'voidable' because the Belize district (so called) has been transformed by Great Britain into an organized colony. But, in the first place, the transformation has taken place pursuant to the treaty with Ilonduras, which was accepted by the United States in 1860 as a satisfactory compliance with the provisions of the Clayton-Bulwer Treaty. In the next place, the Belize colony was organized in 1862 and, until the time of Mr. Frelinghuysen, its organization was never made a cause of complaint by the United States. In the third place, if the organization of the Belize colony is to be deemed an infraction of the Clayton-Bulwer Treaty, the United States has acquiesced therein too long to claim that the treaty has thereby become null and void. If not


altogether estopped to treat the colony as a grievance, its only remedy is to give notice that it will regard the future maintenance of the colony as a violation of the treaty and, if its remonstrance is not heeded, to then take such further steps in the matter for the abrogation of the treaty, or otherwise, as it may deem expedient. But, that the existence of the Belize colony gives any present right to deal with the treaty as a nullity can not be maintained for a moment.

“Besides the objections to the operation of the treaty just considered, and which are especially applicable to the first seven articles, Mr. Frelinghuysen regards the eighth article as of no vital force, for two

One is that the treaty must stand or fall as a whole, and that, the first seven articles being assumed to be without effect for want of a subject-matter, the eighth is not effective also. The answer to this suggestion has already been given. The second reason given is that by the terms of the eighth article itself, its provisions are to be executed through treaty stipulations-none of which have been made. But the absence of any such treaty stipulations is to be accounted for by the fact that no occasion for making them has arisen, while it is not perceived how the circumstance that the eighth article is not selfexecuting impairs the obligation to enter into such conventions, at the proper time or times, as will execute them. The contracting parties having settled a principle, applied it by appropriate provisions to the case immediately in hand. They then not merely expressed their intent to apply it to other like cases arising in the future, but bound themselves to do so. The obligation is imperative, and neither party can discharge itself therefrom except either by making the required treaty stipulations as circumstances call for them or by such honest effort to make them that the failure to succeed can be justly attributed only to the unreasonable demands of the other party.

“On these grounds, but one answer can fairly be made to the question whether the United States is now at liberty to declare the Clayton-Bulwer Treaty as without binding force. The suggestion for the first time urged by Mr. Frelinghuysen-that the treaty referred to a particular canal, to be constructed by a particular company, under a particular concession, and became a nullity when that company ceased to exist without building the canal-is ingenious rather than sound, antagonizes the language of the treaty itself, and is not supported by any contemporary conduct or construction. Against the suggestion are to be put the utterances of all other Secretaries of State since the treaty was made and the uniform course of the Government for upwards of thirty years. In no instance have the former failed to deal with the treaty as a binding obligation-in no instance, when occasion justified it, has this Government failed to call upon Great Britain to comply with its provisions—while, during the first ten years of the life of the treaty, when it might have been abrogated, either for violations by Great Britain or with the latter's consent, the United States steadily insisted upon holding Great Britain to its obligations. l'nder these circumstances, upon every principle which governs the relations to each other, either of nations or of individuals, the United States is completely estopped from denying that the treaty is in full force and vigor.

“If changed conditions now make stipulations, which were once deemed advantageous, either inapplicable or injurious, the true remedy is not in ingenious attempts to deny the existence of the treaty or to explain away its provisions, but in a direct and straightforward application to Great Britain for a reconsideration of the whole matter."

Memorandum of Mr. Olney, Sec. of State, 1896, on the Clayton-Bulwer

treaty. As to bills pending in Congress for the construction of an interoceanic canal,

see Mr. Rodriguez, minister of the Greater Republic of Central America,

to Mr. Olney, Sec. of State, Jan. 15, 1897, For. Rel. 1896, 374-376. “We are also indebted to it [the Monroe Doctrine) for the provisions of the

Clayton-Bulwer treaty, which both neutralized any interoceanic canal across Central America and expressly excluded Great Britain from occupying or exercising any dominion over any part of Central America." (Mr. Olney, Sec. of State, to Mr. Bayard, amb. to Great Britain, July 20, 1895, For. Rel. 1895, I. 545, 575, in relation to the Venezuelan

boundary.) “It (the Monroe Doctrine) was at once invoked in consequence of the sup

posed peril of Cuba on the side of Europe; it was applied to a similar danger threatening Yucatan; it was embodied in the treaty of the United States and Great Britain as to Central America; it produced the successful opposition of the United States to the attempt of Great Britain to exercise dominion in Nicaragua under the cover of the Mosquito Indians; .." (Report of Mr. Fish, Sec. of State, July 14, 1870, accompanying President Grant's message to the Senate of the same date, S. Ex. Doc. 112, 41 Cong. 2 sess. 7.)



"A subject of large importance to our country and increasing appreciation on the part of the people, is the completion of the great highway of trade between the Atlantic and Pacific known as the Nicaragua Canal. Its utility and value to American commerce is universally admitted. The Commission appointed under date of July 21th last “to continue the surveys and examinations authorized by the act approved March 2, 1895,' in regard to the proper route, feasibility and cost of construction of the Nicaragua Canal, with a view of making complete plans for the entire work of construction of such canal,' is now employed in the undertaking. In the future I shall take occasion to transmit to Congress the report of this Commission, making at the same time such further suggestions as may then seem advisable."

President McKinley, annual message, Dec. 6, 1897. (For. Rel. 1897, xxiii.)
H. Doc. 551-Vol 3-17

“That the construction of such a maritime highway is now more than ever indispensable to that intimate and ready intercommunication between our eastern and western seaboards demanded by the annexation of the Hawaiian Islands and the prospective expansion of our influence and commerce in the Pacific, and that our national policy now more imperatively than ever calls for its control by this Government, are propositions which I doubt not the Congress will duly appreciate and wisely act upon."

President McKinley, annual message, Dec. 5, 1898. (For. Rel. 1898, lxxi.) “The great importance of this work can not be too often or too strongly

pressed upon the attention of the Congress. In my message of a year ago I expressed my views of the necessity of a canal which would link the two great oceans, to which I again invite your consideration. The reasons then presented for early action are even stronger now." (President McKinley, annual message. Dec. 5, 1899, For. Rel. 1899, xvii.)



[ocr errors]

Feb. 5, 1900, Mr. Ilay, Secretary of State, and Lord Pauncefote,

British ambassador, signed at Washington a convenTreaty of Feb. 5,

tion, the object of which was declared to be “to facilitate 1900.

the construction of a ship canal to connect the Atlantic and Pacific Oceans, and to that end to remove any objection which may arise out of the convention of April 19, 1850, commonly called the Clayton-Bulwer treaty, to the construction of such canal under the auspices of the Government of the United States, without impairing the 'general principle of neutralization established in Art. VIII. of that Convention."

The convention of Feb. 5, 1900, was communicated to the Senate, with a message of the President bearing date as of the same day.

The Senate gave its advice and consent to the exchange of ratifications, with certain amendments, which are denoted below in italics, except in the case of Art. III., which, as is indicated by brackets, was stricken out, Art. IV. being made Art. III. :

ARTICLE I. It is agreed that the canal may be constructed under the auspices of the Government of the United States, either directly at its own cost or by gift or loan of money to individuals or corporations or through subscription to or purchase of stock or shares, and that, subject to the provisions of the present Convention, the said Government shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.

a See Mr. Hay, Sec. of State, to Mr. White, chargé at London, No. 976, Dec. 7, 1898, MS. Inst. Gr. Br. XXXIII. 10; and Mr. White's No. 613, of Dec. 22, 1899.

S. Dọc. 160, 506 Cong. 1 sess.

See, as to the amenilments, report of Mr. Davis, Com. on For. Rel., March 9, 1900, and statement of Mr. Morgan, for the minority, S. Ex, Report, No, 1, 56 Cong. 1 sess., printed as S. Doc. 268, 5li Cong. 1 sess,

« PreviousContinue »