No. 127.
Mr. Dichman to Mr. Evarts.

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.

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.

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.,