No. 341.
Mr. Blaine
to Mr. Lowell.
Washington, November 29, 1881.
Sir: One week after mailing my instruction to you on the 19th instant touching the presentatation to Her Majesty’s Government of a proposal for the modification of the convention between the two countries, of April 19, 1850, better known as the Clayton-Bulwer treaty, I received Mr Hoppin’s No. 218, of the 11th instant, communicating the response of Lord Granville to my circular note of the 24th of June last in relation to the neutrality of any canal across the Isthmus of Panama. I regret that Mr. Hoppin should not have advised me by telegraph of ‘the purport of his lordship’s reply, as it would have enabled me to present the arguments of my dispatch of the 19th instant in a more specific form as meeting a positive issue rather than as generally dealing with a subject which for thirty years, has been regarded in but one light by the public opinion of the United States. It seems proper now, however, in reply to his lordship’s note of November 10th, to give a summary of the historical objections to the Clayton-Bulwer treaty, and the very decided differences of opinion between the two governments to which its interpretation has given rise.
[Page 564]I need hardly point out to you the well-known circumstance that even at the time of the conclusion of the Clayton-Bulwer treaty a very considerable opposition was shown thereto on the part of the far-sighted men in public life, who correctly estimated the complications which the uncertain terms of that compact might occasion. It was ably contended in Congress that its provisions did not, even then, suffice to meet the real points at issue with respect to the guarantee of the neutrality of the whole American Isthmus on bases comporting with the national interests of the United States, and the differences of interpretation became soon after so marked as to warrant the extreme proposal of Her Majesty’s Government to refer them to the arbitration of a friendly power.
The justice of those doubts became still more evident six years later, when the pretensions put forth by Her Majesty’s Government toward territorial protection, if not absolute control, of portions of Nicaragua and of the outlying bay islands brought up the precise question of how far the provisions of the Clayton-Bulwer compact operated to restrain the projected movement, and thereupon the interpretations respectively put upon that instrument by the United States and Great Britain were perceived to be in open conflict. The attempt made in the Clarendon-Dallas treaty, which was negotiated on the 17th of October, 1856, to reconcile these opposing contentions, and to place the absolute and independent sovereignty of Nicaragua over its territory on an unmistakable footing, so far as the United States and Great Britain were concerned, failed to be completed by reason of the rejection by Her Majesty’s Government of an amendment introduced by the Senate into the Clarendon-Dallas project. From that time onward the inability of the two governments to agree upon a common interpretation of the letter and spirit of the Clayton-Bulwer treaty may be accepted as a historical fact.
In the discussions between the two governments which attended the failure of the Clarendon-Dallas treaty, the attitude of the United States with respect to the Clayton-Bulwer treaty was amply defined. As early as the 12th of March, 1857, I find that General Cass, then Secretary of State, in the course of a conference with Lord Napier, Her Majesty’s representative—
passed some reflections on the Clayton-Bulwer treaty; he had voted for it, and in doing so he believed that it abrogated all intervention on the part of England in the Central American territory. The British Government had put a different construction upon the treaty, and he regretted the vote he had given in its favor. (Dispatch of Lord Napier to the Earl of Clarendon, March 12, 1857.)
On the 6th of May, 1857, President Buchanan, in an audience given to Lord Napier, and in response to his lordship’s suggestion that if the attempted adjustment of the difference between the governments as to the Clarendon-Dallas treaty should fail, the Clayton Bulwer treaty remained to fall back upon, characterized that instrument in much stronger terms than General Cass had done. To quote Lord Napier’s words:
The President denounced the Clayton-Bulwer treaty as one which has been fraught with misunderstanding and mischief from the beginning; it was concluded under the most opposite constructions by the contracting parties. If the Senate had imagined that it could’ obtain the interpretation placed upon it by Great Britain, it would not have passed. If he had been in the Senate at the time, that treaty never would have been sanctioned. (Dispatch of Lord Napier to the Earl of Clarendon, May 6, 1857.)
These views are more explicitly and formally repeated in a note addressed by Secretary Cass to Lord Napier on the 29th of May, 1857. He says:
The Clayton-Bulwer treaty, concluded in the hope that it would put an end to the [Page 565] differences which had arisen between the United States and Great Britain concerning Central American affairs, had been rendered inoperative in some of its most essential provisions by the different constructions which had been reciprocally given to it by the parties. And little is hazarded in saying that, had the interpretation since put upon the treaty by the British Government, and yet maintained, been anticipated, it would not have been negotiated under the instructions of any executive of the United States, nor ratified by the branch of the government intrusted with the power of ratification.
The publicity of these statements, and the strong feeling which then prevailed in all quarters that the Clayton-Bulwer convention was inadequate to reconcile the opposite views of Great Britian and the United States towards Central America, led to a very decided conviction that the treaty should be abrogated. Lord Napier reflected this growing impression when, on the 22d of June, 1857, he wrote to Lord Clarendon that—
It is probable that if the pending discussions regarding Central America be not closed during the present summer, an attempt will be made in the next session of Congress to set aside the Clayton-Bulwer treaty. * * * There can be no doubt of the views of the President and Cabinet in this matter.
Before this tendency could, however, find its expression in any official act, a movement on the part of Her Majesty’s Government placed the whole matter in a new aspect. Sir William Gore Ouseley was sent out October 30, 1857, as a special minister, with the double purpose of concluding with the Central American States, and especially with Guatemala and Honduras, settlements of the questions relative to the Bay Islands, the Mosquito Territory, and the boundaries of British Honduras, and also of visiting Washington on the way, and conferring with the Secretary of State of the United States, for the purpose of ascertaining the views of his government, and establishing “a perfect understanding with the United States upon the points respecting which differences have hitherto existed between the two countries.” Among these differences was now superadded to the territorial question of Mosquito and the Islands, the very question which to-day most concerns us, the question of interoceanic communication, which had for some time been the occasion of correspondence between General Cass and Lord Napier, and in relation to which General Cass wrote, on the 20th of October, 1857, as follows:
I have thus endeavored to meet the frank suggestions of your lordship by restating, with corresponding frankness, the general policy of the United States with respect to the governments and the interoceanic transits of Central America; but since your lordship has referred to the Clayton-Bulwer treaty of 1850, as contemplating a “harmonious course of action and counsel between the contracting parties in the settlement of Central American interests,” you will pardon me for reminding your lordship that the differences which this treaty was intended to adjust between the United States and Great Britain still remain unsettled, while the treaty itself has become the subject of new and embarrassing complications.
Prior to the arrival of Sir William Ouseley in the United States, Lord Napier held an important interview with President Buchanan on the 19th of October, 1857, with the object of obtaining “further elucidation of the opinions of the President with reference to the adjustment of the Clayton-Bulwer treaty.” On that occasion Lord Napier declared that he believed it the intention of Her Majesty’s Government, in Sir William Ouseley’s mission, “to carry the Clayton-Bulwer treaty into execution according to the general tenor of the interpretation put upon it by the United States; but to do so by separate negotiation with the Central American republics, in lieu of a direct engagement with the Federal Government,” and asked that, pending the negotiation intrusted [Page 566] to Sir William Ouseley, “no proposal to annul the (Clayton-Bulwer) treaty would be sanctioned or encouraged” by the President or the members of the United States Government. To this the President cheerfully consented, and promised to modify the statements in his annual message to Congress, accordingly, and under no circumstances to countenance any attempt against the Clayton-Bulwer treaty in Congress.
Matters being in this state, with Sir William Ouseley’s mission announced, and the benevolently expectant attitude of the United States toward it assured, Lord Napier, on the 27th of October, 1857, in conference with General Cass, brought up contingently, as a discarded alternative of his government, a former proposal to refer the disputed questions to arbitration.
The General remarked in reply [says Lord Napier, writing to the Earl of Clarendon] that he did not repudiate the principle of arbitration on all occasions; he had invoked it, and would do so again where it seemed justly applicable, but that in this matter it was declined by the American Government for the following reasons: The language of the treaty was so clear that in his opinion there ought not to be two opinions about it. * * * Then it was a mere question of the interpretation of the English language, and he held that a foreign government was not so competent to decide in such a question as the United States and England, who possessed that language in common.
The Earl of Clarendon in reply approved of Lord Napier’s course in broaching anew the suggestion of arbitration, and authorized him to renew formally, in writing, the offer to refer the disputed questions arising out of the interpretation of the Clayton-Bulwer treaty to the decision of any European power (instruction of November 13, 1857), and this was accordingly done by Lord Napier in a note to General Cass, dated November 30, 1857.
In his annual message to Congress in December, 1857, President Buchanan, after narrating the negotiation and failure of the Clarendon-Dallas treaty, said:
The fact is, that when two nations like Great Britain and the United States, mutually desirous, as they are, and I trust ever may be, of maintaining the most friendly relations with each other, have unfortunately concluded a treaty which they understand in senses directly opposite, the wisest course is to abrogate such a treaty by mutual consent and to commence anew. * * * Whilst entertaining these sentiments, I shall nevertheless not refuse to contribute to any reasonable adjustment of the Central American questions which is not practically inconsistent with the American interpretation of the treaty. Overtures for this purpose have been recently made by the British Government in a friendly spirit which I cordially reciprocate.
Meanwhile the Earl of Clarendon had instructed Sir William Ouseley, under date of November 19, 1857—
Not to commit Her Majesty’s Government to any course whatever in respect to the Bay Islands, till the intentions of the Congress of the United States in regard to the treaty of 1850 are clearly ascertained.
The situation, then, at the close of 1857, presented a triple deadlock. The United States had agreed not to move toward the abrogation of the treaty until it could be seen what interpretation of its provisions would result from Sir William Ouseley’s mission. Sir William had received positive instructions not to move until the United States should decide whether to abrogate the treaty or not; and Lord Napier was forbidden to move until the United States should make formal answer to the proposal for arbitration. The instructions of Lord Claredon to Lord Napier, January 22, 1858, contained these words:
We are decidedly of opinion that it would neither be consistent with our dignity nor our interest to make any proposal to the United States Government until we have received a formal answer to our formal offer of arbitration. In event of the offer being refused, it will be a great and hardly justifiable proof of the spirit of conciliation by which we are animated, if we then show ourselves disposed to abrogate the Clayton-Bulwer treaty; but we must not be in too great haste.
In order, apparently, to break this dead-lock, Lord Napier wrote to General Cass, February 17, 1858, that—
Something in the nature of an alternative was thus offered to the American Cabinet. Should the expedient of arbitration be adopted, a great portion of Sir William Ouseley’s duty would be transferred to other agencies. Should arbitration be declined it was hoped that the efforts of Her Majesty’s envoy would result in a settlement agreeable to the United States, inasmuch as in essential points it would carry the treaty of 1850 into operation in a manner practically conformable to the American interpretation of that instrument.
On the 10th of March, 1858, the Earl of Malmesbury, who had succeeded Lord Clarendon in the foreign office, instructed Lord Napier that until an answer was returned to the proposal for arbitration—
No further step can be taken by Her Majesty’s Government with that of the United States in regard to that matter; [and further, that] when this point is cleared up, Her Majesty’s Government, supposing that the Government of the United States decline arbitration, will have to determine whether they should originate a proposal for the abrogation of the Clayton-Bulwer treaty, or adopt any other course which the circumstances at the moment may seem to recommend.
It appears, however, that the proposal to abrogate the treaty, which Lord Malmesbury reserved the right to originate, had already been communicated to the Government of the United States by Lord Napier, under instructions from Lord Clarendon. In a despatch, dated March 22, 1858, Lord Napier wrote:
The Earl of Clarendon authorized me to inform General Cass that Her Majesty’s Government would not decline the consideration of a proposal for the abrogation of the treaty by mutual concert. * * * I have accordingly, on two occasions, informed General Cass that if the Government of the United States be still of the name mind, and continue to desire the abrogation of the treaty of 1850, it would be agreeable to Her Majesty’s Government that they should insert a proposal to that effect in their reply to my note respecting arbitration.
Lord Napier further reports in detail the conversations had with General Cass as to the most proper method of effecting such abrogation, if agreed to.
In reply to this dispatch of Lord Napier, the Earl of Malmesbury instructed him, April 81858 that his action was approved, and that he should confine himself to pressing for an answer to his proposal for arbitration, his lordship added these significant words:
Her Majesty’s Government, if the initiative is still left to them by the unwillingness of the United States themselves to propose abrogation, desire to retain full liberty as to the manner and form in which any such proposal shall be laid on their behalf before the Cabinet at Washington. * * * The Clayton-Bulwer treaty has been a source of increasing embarrassment to this country and Her Majesty’s Government, if they should be so fortunate as to extricate themselves from the difficulties which have resulted from it, will not involve themselves, directly or indirectly, in any similar difficulties for the future.
The answer of General Cass, to Lord Napier’s several proposals was briefly to the effect that pending the results expected from Sir William Ouseley’s mission to the Central American states, the United States could not adopt the alternative of arbitration, “even if it had not been twice rejected before,” and that if—
The President does not hasten to consider now the alternative of repealing the treaty of 1850, it is because he does not wish prematurely to anticipate the failure of Sir William Ouseley’s mission, and is disposed to give a new proof to Her Majesty’s Government of his sincere desire to preserve the amicable relations which now happily subsist between the two countries. (General Cass to Lord Napier, April 6, 1858.)
In this posture of affairs the Earl of Malmesbury instructed Sir William Ouseley to open direct negotiations with the. Central American States; and on the 18th of August instructed Lord Napier to inform [Page 568] the Government of the United States of the intentions and object of Her Majesty’s Government in the premises. His lordship added:
Modification, arbitration, and abrogation of the Clayton-Bulwer treaty have been flatly rejected. Great Britain and Nicaragua are now about to treat as independent states.
I have emphasized the phrase “flatly rejected,” in view of a subsequent instruction of the Earl of Malmesbury to Lord Napier, on the 8th of December, 1858, wherein he said:
I think you would have done better if you had not too pointedly brought before the United States Government the notion that the British Government might view with favor a proposal to abrogate the Clayton-Bulwer treaty.
It is not difficult in following this narrative to discern that General Cass, though not desiring to express it, had an additional motive tor declining at that particular time to propose the abrogation of the Clayton-Bulwer treaty. He did not desire by such proposed abrogation to indicate his willingness that Sir William Gore Ouseley should make treaties with the separate states of Central America unrestrained by the clauses of the Clayton-Bulwer treaty inhibiting the extension of British power in that region. General Cass, with his accustomed caution and wisdom, clearly perceived that for the United States to propose abrogation on the very eve of Sir William Ouseley’s mission would lead to injurious inferences and would imply conclusions which the United States was not prepared to admit. Objectionable as General Cass thought the Clayton-Bulwer treaty, he thought it was better than giving the implied consent of this government that Great Britain should obtain such treaties as the force of her power might secure in Central America. The subsequent note of Lord Malmesbury, not strained by an uncharitable construction, throws additional light on the subject and confirms the wisdom of General Cass in declining to propose abrogation at that time. And besides, General Cass evidently desired to retain those very clauses of the Clayton-Bulwer treaty to which, in my dispatch of the 19th, I proposed on the part of this government to adhere.
I have dwelt with somewhat of detail on this particular historic episode, partly because it admirably illustrates the spirit with which both governments have regarded the Clayton-Bulwer treaty from the first, and partly because it had more direct bearing on the question of the guarantee of any isthmian transit than any other discussion of the time. In perusing the voluminous correspondence, imprinted as well as that printed and submitted at the time to Congress and to Parliament, I am more than ever struck by the elastic character of the Clayton-Bulwer treaty, and the admirable purpose it has served as an ultimate recourse on the part of either government to check apprehended designs in Central America on the part of the other, although all the while it was frankly admitted on both sides that the engagements of the treaty were misunderstandingly entered into, imperfectly comprehended, contradictorily interpreted, and mutually vexatious.
I am, as I must confess, strengthened in this impression by the circumstance that in his response to my dispatch of the 24th of June last, Earl Granville takes the ground that the position of Great Britain and the United States toward the projected Panama Canal is determined by the Clayton-Bulwer treaty. It does not seem likely to become a subject for discussion how far the engagements of that compact in reality extend to the Isthmus of Panama, under the provisions of Article VIII thereof, in the same precise sense in which they extend to the projected Nicaraguan transit. For it will be observed that this article does [Page 569] not stretch the guarantees and restrictions of Article I over either the Tehuantepec route through Mexican territory, or the Panama route through Colombian territory. It is in terms an agreement to extend the protection of both countries, by treaty stipulations, to those or any other practicable water-ways or railways from ocean to ocean across the Isthmus, outside of Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America. So far as this inchoate agreement to hereafter agree is applicable to the Panama transit, I have amply shown, in my No. 270 of the 19th instant, that the obligations embraced on the part of the United States in concluding the prior convention with the Republic of New Granada (now Colombia) in 1846, require that the United States should be freed from unequal and inequitable obligations to Great Britain under the vague and as yet unperfected compact of 1850.
My main object in writing this instruction has been to strengthen your hands in any discussion which may now ensue as to the benefits of the Clayton-Bulwer treaty, and the mutual interest of the two countries in conserving it as the basis of a settlement of all questions between them touching Central American and Isthmian questions. It will be seen that from the time of its conclusion in 1850 until the end of 1858, its provisions were thrice made the basis of a proposal to arbitrate as to their meaning, that modification and abrogation have been alike contingently considered, and that its vexatious and imperfect character has been repeatedly recognized on both sides. The present proposal of this government is to free it from those embarrassing features, and leave it, as its framers intended it should be, a full and perfect settlement, for all time, of all possible issues between the United States and Great Britain with regard to Central America.
If in your conferences with Earl Granville it should seem necessary, you will make free use of the precedents I have cited, and should you, within the discretionary limits confided at the end of my No. 270, have given a copy thereof to his lordship, you are equally at liberty to let him have a copy of this also, with the same explanation, that it is for your use, and not written as a formal note for communication to Her Majesty’s Government.
I am, &c.,