Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1881

Mr. Trescot to Mr. Evarts.

Washington, February 18, 1881.

Sir: I have the honor to inclose herewith a protocol signed on the 17th February, 1881, by General Santo Domingo Vila, envoy extraordinary and minister plenipotentiary of the Government of the United States of Colombia, and myself, representing the Secretary of State of the United States of America, under instructions from you.

At my first interview with General Santo Domingo, I submitted to him the memorandum with which I was furnished by you, containing a précis of the character and scope of the conferences heretofore had between yourself and the Colombian minister.

You will find, I hope, that the protocol contains sufficiently full and satisfactory declarations upon the points under discussion, with the exception, perhaps, of the provision of the first article of the project which you submitted to his consideration.

That article was intended to declare that any concession for the execution of an interoceanic canal, heretofore made or hereafter to be made by the United States of Colombia, was and should be subject to the rights of the United States of America as guarantor of the neutrality of the isthmus and of the sovereignty of Colombia over isthmian territory secured to the United States by the thirty-fifth article of the treaty of 1846, and that the consent of the United States of America must be considered as a preliminary necessary to the validity of any future grant or the modification of any existing one.

General Santo Domingo recognized that no rights secured to this government by the older treaty could be subordinated to rights conferred by the more recent concession; and in the first declaration of the protocol it was distinctly declared that the right of the Government of the United States to the free use of the canal for its war vessels was superior to the right granted the holders of the concession, in article 5, to levy tolls upon all such vessels, except only the war vessels of Colombia.

He was unwilling to make such a declaration as seemed to him to imply that there had been such an infringement of our treaty rights by the grants of the concession, which, as a fact, he did not admit. He thought the relations established by the treaty made the right of the United States so plain to insist upon the observance of article 35 and to lay before the Colombian Government, by protest or otherwise, any provision of the concession which was deemed an infraction of the treaty, as to require no more specific declaration. But he was not willing to accept the protest of the United States as, ipso facto, rendering any provision of the concession which might be complained of inoperative, for that would seem to dispense with the necessity of amicable consultation for the purpose of removing the supposed difficulties. If such consultation reached no satisfactory solution, the power and right of the United States were indisputable, and the question would be then one of those in which each government would be free to maintain its position by adequate means and in view of its general interests.

As the first declaration of the protocol had recognized, in the only practical case, the superiority of the treaty obligation; as the other declarations established an accord between the two governments in the construction of the rights secured by article 35 of the treaty; and as the Government of the United States had, in former diplomatic communications to Colombia, indicated its dissatisfaction with the grant of the Wyse-Salgar concession without its previously obtained consent, and had explicitly informed the Colombian Government that the necessity for such consent was and would be maintained as a consequence and function of the guarantee undertaken by the treaty of 1846—I deemed it best not to press further the present consideration of article 1 of the project, and to reach, if possible, a practical accord which might even deprive its future discussion of any large consequence.

This, I think, was reached in the third declaration of the protocol, in which Colombia accepts the concurrence of the United States in any modification of the tolls and regulations of the canal-transit now established, which, for any cause Colombia may see fit to require. The cause for such intervention on the part of Colombia might be any apparent conflict between the rights secured by treaty and such as are granted by concession.

The other declarations of the protocol would seem to cover all the provisions of the project:

1. The equal freedom of the use of the canal by the governments as well as by the citizens of Colombia and the United States.

2. The authority of the United States, in execution of its guarantee, to occupy the territory of the isthmus and to provide the necessary basis for military and naval operations; and the adoption, by convention, of such methods as may be found most fitting for the co-operation of the two governments.

3. The right of the two governments to close the canal in time of peace to the war vessel of all other nations.

In discussing this last declaration, General Santo Domingo recognized that a contingency might arise in which the interests of the United States would require the canal to be closed to the war vessels of some other nation, and the relations of the two nations were such as to justify the United States in expecting the concurrence of Colombia. But in such case he observed that the nation so excluded might resent the exclusion even to war, and that the guarantee of the United States was confined to the isthmus, and the rest of Colombia would be thus exposed to hostile demonstration without responsibility on the part of the United States for its defense.

While, therefore, willing to accept the general principle that, as matter of right, the canal should be closed to the war vessels of all nations other than the two contracting parties, in time of peace, but that its innocent use should be allowed to such vessels, subject to such regulations and restrictions as the two powers might jointly adopt, he thought that in case the United States required such closing of the canal, it should be prepared to co-operate with Colombia in the resistance of any attack that might be made on its sovereignty or territory in consequence of such action.

This condition seemed to me so reasonable and was in fact so entirely the line of conduct which the United States would have necessarily to adopt, if the circumstances occurred, that I had no hesitation in shaping the declaration as you will find it in the protocol; stating clearly and explicitly the principle of the closing of the canal in time of peace to the war vessels of other nations, and defining with precision the obligation which the United States would assume in the contingency contemplated.

Having reached this accord, I informed General Santo Domingo that I was authorized to say that “you were prepared to renew your conferences upon that basis, in the expectation of a conclusive arrangement.”

He replied, that the necessity for his immediate departure was urgent and his presence as a member of the Colombian Senate of pressing importance; that our accord, formulated in a protocol, would enable him to lay the whole subject before the Colombian Government in such a light as to secure a treaty on that basis, either through the official action of the United States minister at Bogotá, or through renewed negotiation with him on his return here in June.

Under these circumstances, I felt that I was best carrying out my instructions by signing the protocol, and submitting it for your approval.

I am, sir, very respectfully,

WM. HENRY TRESCOT.

protocol.

The United States of Colombia recognizing—

That the construction of an interoceanic canal through the Isthmus of Panama will render more onerous the obligations of the United States of America assumed by the said United States in the thirty-fifth article of the treaty of 1846, between the United States of America and the United States of Colombia, then known as the Republic of New Grenada;

That the United States of Colombia are bound to concur with the United States of America in the maintenance of the neutrality of the Isthmus of Panama and of the sovereignty of the United States of Colombia over the territory of the said isthmus, guaranteed by the thirty-fifth article of the said treaty;

General Santo Domingo Vila, envoy extraordinary and minister plenipotentiary of the United States of Colombia to the United States of America, and William Henry Trescot, of South Carolina, for that purpose authorized and empowered to represent the Secretary of State of the United States of America, have signed this protocol, containing the following declarations:

I.

That, in conformity with the above-recited treaty of 1846, any interoceanic communication through the Isthmus of Panama, by canal or otherwise, shall be as free and open to the government and citizens of the United States of America as to the government and citizens of the United States of Colombia, except in case, which God forbid, of war between the two nations.

II.

The two governments will by common accord select such points in the territory of said isthmus as they may deem proper for fortification, temporary or permanent, and for military and naval depots, coaling-stations, and dock-yards, and will provide by convention for the occupation and establishment of such depots, stations, and fortifications.

And if the case contemplated in article 35 of the treaty of 1846 should occur and the sovereignty of the United States of Colombia over the Isthmus of Panama, or the neutrality of the transit across said isthmus, be threatened, the United States of America are authorized to occupy and maintain such threatened territory during the existence of such exigency in co-operation with the military forces of Colombia and in the defense of said sovereignty and territory.

But it is also understood that in time of peace, and no exigency existing in the judgment of the two governments, no military force (other than such detail as may be arranged by the two governments for the repair and preservation of fortifications and military stores, and the maintenance of docks, naval stations, and coal depots) shall occupy the said fortifications or be stationed within the said territory, except such military forces as shall belong to the United States of Colombia.

III.

That in case the United States of Colombia find cause to intervene for the modification of the tolls or regulations established by the holders of any concession of the said government for the execution of said interoceanic communication, the Government of the United States of Colombia will accept the concurrence of the United States of America in the adjustment of such tariff.

IV.

As the United States of Colombia and the United States of America are the only nations who have by treaty guaranteed the neutrality of transit across the Isthmus of Panama, and as the United States of America have further by treaty guaranteed the sovereignty of the United States of Colombia over the territory of said isthmus, the canal shall not be considered open as matter of right in time of peace to the war vessels or military transports of any nations except the said United States of Colombia and United States of America. But the said two contracting parties agree that they will declare the said canal open to the innocent use of the war vessels of other nations, subject to such regulations and restrictions as the said two contracting governments may jointly adopt.

But it is understood that if at any time the two governments should concur in withdrawing such declaration and closing the canal to the war vessels of other nations, and danger should threaten the sovereignty or territory of the United States of Colombia in consequence of such action, the United States of America will co-operate with the United States of Colombia in the means necessary for the defense of the sovereignty and territory so threatened.

Signed by us in the city of New York, on the seventeenth day of February, in the year of our Lord one thousand eight hundred and eighty-one,

• WM. HENRY TRESCOT.
• SANTO DOMINGO VILA.

The ageement upon the points embraced in this protocol of the same accords with my views and has received the approval of the President.

The question, however, as to whether other points might not need to be entertained as a part of a formal convention on the basis of article 35 of the treaty of 1846 is not understood by me to be precluded by this protocol.

WM. M. EVARTS.

February 18, 1881.