No. 129.
Mr. Dichman to Mr. Evarts.
Legation of
the United States,
Bogota, March 17, 1879.
(Received April 14.)
No. 58.]Sir: The inclosed copy of a protocol, and
translation of the same, on the subject of the right of transit across the
Isthmus of Panama, guaranteed to the government of the United States by the
35th article of the treaty of 1846, concludes, I trust, the negotiations
which I have carried on with this government in obedience to your
instructions contained in your Nos. 12 and 23.
The original will be forwarded by the first safe opportunity. For the files
of the legation I have obtained a certified copy.
In the course of the negotiation various expedients were proposed by the
Colombian secretary of foreign relations for the purpose of avoiding the
direct issue in question, and in pursuance of the views indicated by his
predecessor in his letter to the Department of State dated July 1, 1878.
Among others, he submitted to me the draft for a new convention, explanatory
of the existing treaty in reference to the subject in question, but as this
draft contained the objectionable feature of allowing the exercise of a
discretion to the State government of Panama, in refusing the right of
transit to prisoners in the custody of the government of the United States
under certain circumstances, and as also, in my opinion, the multiplying of
conventions on a subject clearly within the provision of an existing treaty,
is a matter of doubtful policy or propriety. I was obliged to decline the
proposals made by the Colombian secretary, and instead thereof urged upon
him the desirability of arriving at a common accord on the question at
issue, by giving a satisfactory
[Page 274]
construction to article 35 of the treaty of 1846. At the same time I was
free to admit that while I considered the right of the government of the
United States to the “innocent use” of the right of way or transit as a
“perfect right” under the treaty, I was ready to acknowledge the propriety
of adopting such reasonable regulations for the exercise of the same as
would assure to the government of the United States a practical enjoyment
thereof.
The objections raised on account of the Colombian constitution were met by
the arguments set forth in my previous communication to the Colombian
Government, a copy of which was inclosed in my No. 17 to the Department,
supported by citations from Calvo, Bello, and other Spanish writers on
international law, to whose works I also referred for authorities in the
construction of the language used in article 35 of the treaty. I also took
occasion to suggest that the doctrines maintained by the government of
Colombia in regard to the sheltering and protecting power of articles 10 and
15 of the Colombian constitution might, at some future time, prove highly
inconvenient to the government of this Republic in making it an
impossibility to repel an undesirable emigration of criminals who would wish
to avail themselves of this country as a place of refuge.
The ever-present danger to the sovereignty of his country, which, to the
Colombian statesman, is something to be apprehended in his intercourse with
other nations, and which was brought forward on this occasion as a standing
objection, was disposed of in the manner indicated in the communication to
which reference was made above, in which I set forth clearly that inasmuch
as the government of the United States had guarantied the sovereignty and
property of the Isthmus of Panama to the United States of Colombia by the
solemn obligation of a treaty, it was, to say the least, an inconsistent
view that any apprehensions should be entertained of, or any precautions
need be taken against, the guaranteeing power.
The subject was discussed several times by the President and cabinet, and
when finally the secretary of foreign relations informed me that his
government acknowledged the justice of the position of the Government of the
United States, the question arose as to the manner in which this
acknowledgment of the Colombian Government should be expressed and how the
exercise of the right of transit thus conceded to pertain to the Government
of the United States should be regulated.
Instead of a note which the secretary of foreign relations offered to write,
I suggested a protocol of a conference embodying an agreement. I beg to
refer here to my No. 35 in which I informed the Department of certain
researches which I was making, and having made, for the purpose of finding a
precedent if possible.
Among the unpublished executive communications of the Colombian Government a
letter was discovered, a copy and translation of which I inclose, in answer
to an inquiry made by the Government of the State of Panama, which by the
use of the words “and prisoners under the Federal jurisdiction” in the
second article of the letter was perfectly applicable to the settlement of
the subject under consideration. As the language of the second article of
this letter is so clear in setting forth the rights of the Government of the
United States, and in order to make use of it as a link in the chain of
precedents, I suggested that in the protocol to be drawn up and signed, the
pertinent parts of this letter be inserted. You will perceive that article 1
of the protocol expresses the rights of the Government of the United States
in the premises clearly
[Page 275]
and
distinctly, and is a clear statement of the rights and obligations of both
governments.
Article 2 of the protocol relates to the manner in which the right of transit
is to be exercised by the Government of the United States in the case of
prisoners. A distinction is made between prisoners extradited from other
countries and those taken from one part of the United States to another. In
the former case the documents upon which the extradition has taken place are
to be shown to the agents of the Colombian Government at Panama, merely as
an act of notification$ in the latter case no such formality is
necessary.
Concerning article 3 of the protocol, I beg to refer to the correspondence in
inclosures Nos. 3 and 4. In addition to the views therein expressed, I am of
the opinion that the custody of any prisoner of the United States during the
time of transit and embarkation by the Colombian authorities, will save a
great deal of trouble and annoyance to any officer in charge of such
prisoner.
The accompanying correspondence, contained in inclosures No. 3 and 4, also
expresses my views in regard to article 4. As the Colombian secretary
requested that the same should be inserted, I expressed a willingness to
sign the protocol with the distinct understanding expressed in my letter of
February 22, contained in inclosure No. 3.
After the signing of the protocol and the delivery of my note of February 22,
1879 (inclosure No. 3), and before Dr. Arosemena could answer the same as
agreed upon, the Colombian Senate deprived him of the power of so doing by
refusing to confirm his nomination.
In order that this matter should be closed up by an answer to the note of
February 22, I have delayed this dispatch until this answer could be
obtained from the successor of Dr. Arosemena. I beg to refer to it as
inclosure No. 4.
As soon as the protocol is published in the official newspaper (Diario
Oficial), I shall send copies of the same to the consuls of the United
States at Aspinwall and Panama.
I trust that the result of my actions will meet with your approval.
I am, &c.,
protocol.
[Inclosure No. 1 in No.
58.—Translation.]
At a conference which took place in the department of the interior and
foreign relations at Bogota to-day, the 22d of February, 1879, between
the secretary thereof, Pablo Arosemena, and the Hon. Ernest Dichman,
minister resident of the United States of America at Bogota, being both
duly empowered by their respective governments, with a view of examining
the differences which have arisen between them relating to the right of
transit which the Government of the United States of America has across
the Isthmus of Panama, and for the purpose of arriving at a common ac
cord which will remove said differences definitively, agree upon the
following:
- 1st.
- As was recognized explicitly by the Government of the United
States of Colombia in a note directed by the secretary of the
interior and foreign relations to the Government of the State of
Panama, on May 15, 1885, under No. 77. According to article 35
of the treaty with the United States of America of the 12th of
December, 1846, the Government of Colombia guarantees the right
of way or transit across the Isthmus, not only to the citizens
of the United States, but also to their government, and
consequently, the troops of the American Union, as well as the
prisoners under the 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.
- 2d.
- In the ease of transportation across the Isthmus of Panama of
criminals, the extradition of which may have been obtained by
the United States of America from other governments, there will
be presented by the, consular agent of that country to those
(the agents) of the Government of the Union in the State of
Panama, the documents which may have served as a basis for the
extradition. In the case of the transportation of criminals,
proceeding from the territory of the United States, this
formality will not be necessary.
- 3d.
- The armed forces of the nation or of the State (troops) will
take charge gratuitously of the custody of the criminals, the
transportation of which is requested by the Government of the
United States of America, from that of the United States of
Colombia (across the Isthmus of Panama).
- 4th.
- The honorable senate of plenipotentiaries will be notified of
this settlement.
In faith of which, we sign and seal two
copies of this protocol at Bogota, the twenty-second of
February, one thousand eight hundred and
seventy-nine.
[
seal.]
PABLO
AROSEMENA.
The minister resident of the United States
of America:
[
seal.]
ERNEST
DICHMAN.
[Inclosure 2 in No.
58.—Translation.]
United States of Colombia, National Executive
Power.
department of the interior and foreign
relations.—bureau of foreign affairs.
Section 1, No 77.
To the Secretary of the Government of
the Sovereign State of Panama:
The citizen President of the Union, to whom was referred your note of the
13th of January last, No. 43, has ordered me to transmit to you the
following instructions, according to which the government will regulate
its conduct concerning the transit of foreign troops across the isthmus,
leaving inoperative those which may have been given formerly upon the
same matter:
- 1.
- The transit across the isthmus, as a general rule, is
prohibited to all nations, unless permission be obtained
previously from Congress, in view of section 4 of article 49 of
the constitution.
- 2.
- According to article 35 of the treaty with the United States
of America of the 12th of December, 1846, the Government of
Colombia guarantees the right of way or transit across the
isthmus not only to the citizens of the United States, but also
to their government, and consequently the North American troops,
as well the prisoners under the 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 that same government is
bound towards ours.
- 3.
- When there may be a necessity of changing the crews of foreign
men of war, the executive power of the State shall warn them not
to commit any hostile act, and to require an account of the
sailors who are being exchanged or replaced, who will not be
permitted to take the train of the railroad, except as ordinary
passengers, and free from any foreign military authority; that
is to say, they must not be in military order.
- 4.
- The same will be observed when soldiers or sailors, being sick
and coming from foreign men of war, wish to cross the isthmus
for the purpose of going to other places to be cured.
I say this to you in answer to your note herein referred to, and in order
that you may be pleased to communicate the same to the citizen-president
of the state with a view of securing the due compliance therewith.
ANTONIO DEL REAL.
Bogota, May 15,
1865.
[Inclosure 3 in No. 58.]
Mr. Dichman to Mr.
Arosemena.
Legation of the United States,
Bogota, February 22,
1879.
Sir: Referring to the protocol of a conference
embodying an understanding on the subject of the right of transit across
the Isthmus of Panama, guaranteed to the Government of the United States
by the thirty-fifth article of the treaty of 1846, which I
[Page 277]
had the honor to execute with
you to-day, I deem it right to observe, for a fuller and better
understanding of the same, that I offered in behalf or the Government of
the United States to provide for a reimbursement of any expenses to
which the Government of the United States of Colombia might be subjected
in executing article 3 of the protocol.
To which you replied as follows:
“Speaking for the Government of Colombia, and also for the Colombian
people, as an evidence of our traditional friendship for the United
States of America, to show a liberal spirit in complying with treaty
stipulations and to promote the ends of justice and morality, the
Colombian Government reaffirms not only the right of way or transit
guaranteed by treaty to the Government of the United States, but also
offers the services of its national and the State forces at Panama, in
order to enable the Government of the United States to make an
efficacious use of this right of way or transit in the exercise of one
of its administrative functions, concerning in this particular instance
the transit of prisoners under its jurisdiction, and I deem it
improbable that in the services to be rendered under article 3 of the
protocol, any expenses will be incurred by the Colombian Government.
“The maintenance of any prisoners who may be unavoidably detained on the
Isthmus of Panama may be provided for by the Government of the United
States of America.”
With this understanding the word “gratuitously” was inserted in article 3
of the protocol. I also took occasion to state, before signing the
protocol, that the notification, or account to be given to the Colombian
Senate by article 4, which was added at your instance, was not to be
construed as an admission on the part of the Government of the United
States that the exercise of the rights guaranteed by the treaty of 1846,
and the execution of the understanding embodied in the protocol, should
depend upon the action of the Senate of Colombia, to which you replied
that the purposes of article 4 of the protocol were only to be
considered as pertaining to the relations between the executive power of
the United States of Colombia and the Colombian Senate, and, being thus
purely internal, article 4 was not to be construed as imposing any
limitation or restriction upon the rights acquired by the United States
by the treaty of 1846, or upon the execution of the understanding
embodied in the protocol which was executed for the purpose of defining
and regulating the manner in which one of these rights may be
exercised.
I will thank you to notify me of the correctness of these statements, in
order that a duplicate of this note may accompany the protocol herein
referred to. I have addressed this note to you in duplicate in order
that you may be able to return one copy with your remarks thereon.
In bringing the correspondence on this subject to a close, permit me to
express my appreciation of the courtesy and patience which you have
always manifested during the entire course of what has at times been a
difficult and delicate negotiation, and to subscribe myself, with
sentiments of the highest consideration,
Yours, &c.,
[Inclosure 4 in No. 58.]
Mr. Ancizar to Mr.
Dichman.
United
States of Colombia, Department of the Interior and Foreign
Relations,
Bogota, March 15,
1879.
Upon studying the note of your honor dated February 22 last, and the
protocol to which it (the note) refers, I was obliged to consult with my
distinguished predecessor, the Señor Dr. Pablo Arosemena, upon the
points of which that note treats, and he has informed me that they are
correct in every part.
I have the honor thus to manifest the same in answer to the honorable
minister resident of the United States of America, and to subscribe
myself his honor’s most obedient servant,
