No. 127.
Mr. Dichman to Mr. Evarts.
Legation of
the United States,
Bogota, February 15, 1879.
(Received March 28.)
No. 48.]
Sir: Since the date of my No. 35 I have had
repeated conferences with the secretary of foreign relations on the subject
of the right of transit guaranteed to the Government of the United States by
the thirty-fifth article of the treaty of 1846. In these conferences, I have
discussed with him the origin of, and reason for, the thirty-fifth article,
and have applied to the words, “The Government of New Granada guarantees to
the Government of the United States that the right of way or transit across
the Isthmus of Panama shall be open and free to the Government of the United
States,” every possible rule of construction. The more I study the question
in all its details, the more I become confirmed in the views which I have
expressed in my No, 17.
The difficulty in the way of the Colombian secretary of foreign relations may
be stated as follows:
The erroneous view taken by his predecessor, as stated in his communication
addressed to the department under date of July 1, 1878. To this view, and
all its mistaken inferences regarding the Colombian constitution, the
present secretary of foreign relations appears to attach perhaps undue
importance, either as a matter of consistency in the administration of his
department, or from too great a deference to the opinions of a gentleman who
for many years occupied a position of prominence in the politics of this
republic.
* * * * * * *
I am, &c.,
[Inclosure 1 in No. 48.]
Mr. Dichman to Mr.
Arosemena.
Legation of the United States,
Bogota, January 21,
1879.
Sir: Under instructions from my government I
beg leave to call the attention of the honorable secretary of foreign
relations to the action of the government of the State of Panama in
refusing the right of transit across the Isthmus of Panama to a duly
commissioned officer of the United States in charge of au extradited
criminal from the republic of Peru, and to the further action of said
government of the State of Panama in releasing such prisoner and placing
him at liberty.
As previous to the receipt of instructions on this matter, the same has
been discussed informally by the honorable secretary and myself, I do
not deem it necessary to dwell upon the same at length in this note, but
only beg leave to add that I am directed to invite his earnest attention
to this cause of difference between the two governments, for in the
action of the Colombian Government by its agent the government of the
State of Panama on the occasion above stated, my government does not
find either an exhibition of that spirit of friendship which has always
animated the relations between the two nations, or a compliance with the
guaranty to the Government of the United States contained in the
thirty-fifth article of the treaty of 1846, by which the right of way or
transit across the Isthmus of Panama shall be open and free, not only to
the citizens, but also to the Government of the United States.
With the history of that article of the treaty, the obligation assumed by
the United States, and the manner in which the same has been discharged,
the honorable secretary is quite familiar, therefore I shall not trouble
him with a statement thereof on this occasion.
As the honorable secretary has expressed to me his anxiety that this
cause of difference
[Page 272]
between
the two countries should be removed, I would request the honor of a
personal conference with him at as early a day as may suit his
convenience for the purpose of reaching a common accord on this
question.
With the assurance of the highest consideration,
I have, &c.,
[Inclosure 2 in No.
48.—Translation.]
Mr. Arosemena to
Mr. Dichman.
United
States of Colombia, Department of the Interior and Foreign
Relations,
Bogota, January 24,
1879.
I have had the honor to receive the note which your honor has addressed
me under date of the 21st instant for the purpose of calling the
attention of the Colombian Government toward the fact that there had
been placed in liberty by order of the president of the State of Panama,
C. G. Scrafford, accused of forgery, who was being taken to the United
States of America by way of the Isthmus, by Señor W. F. Clayton,
vice-consul of the United States at Callao.
Your honor manifests in the same note that the Government of the United
States of America has not found in the conduct of that of the Colombian
Union the same spirit of loyal friendship which has always prevailed in
the relations which the two nations cultivate, and that this conduct
impairs the rights which the American Union acquired by the 35th article
of the treaty which it executed with the republic in 1846. Your honor
concludes with soliciting a conference with the undersigned in order to
consider the question and terminate it in a mutual satisfactory
manner.
I see myself obliged here to repeat, that which was said from this office
under date of the 1st of July last upon the same subject, to the
honorable secretary of foreign relations of the United States of
America.
The compliance with the constitution of the republic is the first of the
duties of the Government of the Union and of its agents in the States.
Among other rights, not less precise, the fundamental code of this
country recognizes and guarantees to the persons which cross its
territory personal security in such a manner that they may not be
confined without being heard and convicted in court in accordance with
pre-existing law. To keep Scrafford a prisoner, who had committed no
crime in Colombian territory, nor had been heard or convicted in court
according to law, would be to violate in him the personal security and
for the same the constitution which recognizes and guarantees this
right. In decreeing his liberty, the president of the State of Panama
barely complied with his written duties, and bowed before definite
precepts of our constitutional law.
The fact of placing Scrafford in liberty, which, as has been seen, was
necessary in view of the constitution of the republic, is no violation
of the thirty-fifth article of the treaty of 1846, executed between New
Granada and the United States of America, yet in force. The article
refers only to the franchises, privileges, and immunities of a
mercantile nation, and the right of transit, which-is then conceded
across the Isthmus of Panama to the citizens and to the Government of
the United States, does not comprise the transportation of criminals
through our territories with an evident violation of our political
institutions.
The Government of the American Union ought not therefore to see in the
proceeding of that of Colombia (which had caused this correspondence) a
relaxation of the ties of frendship which happily exist between the two
countries. These ties have been created by the similarity of
institutions and the well-understood interests of the two people, and
far from weakening them, they will, without doubt, grow stronger with
the march of time.
As I have had the honor to say to your honor on several occasions, the
Colombian Government finds itself disposed to execute, with that of the
American Union, a convention which fixes and regulates the right of
transit across the Isthmus of Panama, conceded to said country by the
thirty-fifth article of the treaty of 1846, in a way which takes into
consideration the sovereignty of Colombia in that territory and the just
aspirations of the cabinet of Washington.
In order to consider this matter, I will hold in the shortest time
possible the conference which your honor proposes, the result of which
will not be less than mutually satisfactory.
With sentiments of distinguished consideration, &c.,
