No. 225.
Mr. Frelinghuysen to Mr. Lowell.

No. 586.]

Sir: I inclose herewith a copy of an instruction from Lord Granville to Her Britannic Majesty’s minister in Washington, dated December 30, 1882, a copy of which was handed to me by Mr. West [see correspondence with the British legation in Washington, post], and which is a reply to the argument contained in my No. 368 to you of May 8, 1882, on the subject of the Clayton-Bulwer treaty.*

You will remember that my No. 368 showed that the first seven articles of the treaty related to a particular canal then in contemplation, to aid the construction of which the treaty was signed; that the United States, being then without the means to build the canal, for which they had secured an exclusive grant from Nicaragua, naturally turned to England for capital, to secure which they were willing to surrender some of their exclusive privileges, and that the canal never having been built, the reason for the surrender of privilege has ceased and the treaty with Great Britain is voidable, being without consideration or any object to which it is applicable.

Lord Granville, in his instruction to Mr. West, in substance concedes that the first seven articles of the treaty related to what was then known as the Nicaragua Canal, but intimates an uncertainty as to the route. In this he is in error, for the line of the canal was definitely fixed soon after the conclusion of the treaty, and accepted by both Governments.

His lordship, however, practically confines himself to an assertion of rights under Article VIII by which the parties—

after declaring that they not only desired, in entering into the convention, to accomplish a particular object, but also to establish a general principle, agreed to extend their protection by treaty stipulations to any other practicable communications, whether by canal or railway, across the isthmus which connects North and South America, and especially to the interoceanic communications, should the same prove to be practicable whether by canal or railway, which are now proposed to be established by the way of Tehuantepec or Panama.

And he claims that this provision is in effect an agreement that all the prior provisions with reference to the particular ship-canal—the Nicaraguan route—then in contemplation should be applied to any other canal thereafter constructed. Citing treaties between the United States and some of the Central American states, he contends that this Government having, since the Clayton-Bulwer treaty of 1850, entered into treaties which harmonize with the “general principle,” is estopped from denying that the eighth article has the construction and effect he contends for.

Lord Granville further holds that Article VIII is none the less an agreement because it provides for further treaty stipulations to carry it into effect.

This argument has already been anticipated in my No. 368, in which it was shown that while the parties interested agreed in Article VIII to extend, by future treaty stipulations, their protection over other communications across the Isthmus, the immediate object of the article was the protection of the communications “now” (1850) proposed to be established by the way of Tehuantepec or Panama. None of the proposed [Page 419]communications having been established, the reason for the agreement has disappeared.

Further, the article provides for carrying out the “general principle” by additional stipulations which have not been even discussed.

Nor is there anything in the eighth article which makes applicable to any other route the provisions of the first seven articles covering the “particular object,” viz, the Nicaraguan Canal.

The eighth article, therefore, is simply a declaration of the intention entertained more than thirty years ago by two nations to take up at some subsequent period the negotiation of a treaty on a particular subject. In order to carry out this purpose, treaties must be made by the United States and England with each other and with each of the Central. American states through which a canal may be built, defining in detail the stipulations necessary to execute the general principle.

It cannot be successfully contended, as is suggested by Lord Granville, that the separate treaties made by this country with some of the Central American states, by which this Government agrees to guarantee neutrality, show an agreement to guarantee it jointly with Great Britain, for that would involve the admission that an express agreement to guarantee singly is in effect an implied agreement to guarantee jointly. Nevertheless, it is not denied that the United States did for many years try to induce Great Britain to fulfill her part of the agreement of 1850, and it was only when it became impossible for Her Majesty’s Government to perform the promises which had led the United States to make the treaty that the position now maintained was assumed.

If it be contended that even if the treaty may be considered as lapsed, so far as it related to the specific route by Nicaragua and the routes named in the eighth article, as contemplated in 1850 (by Panama and Tehauntepec), yet the treaty is binding so far as it relates to other Isthmian communications not specified and not then contemplated, the answer is that the treaty must be considered as a whole, and that the general stipulations of the eighth article would never have been made but for the stipulations as to the specified routes then contemplated, and that part of the treaty having lapsed, the general stipulation as to any interoceanic communication fails for want of consideration.

To reach the construction his lordship seeks to put on the eighth article, its plain language must be disregarded and the consideration must be ignored that the article is as applicable to the Panama Railroad as to any other means of Isthmian transit, and that by acquiescence for many years in the sole protectorate of the United States over this railway, Great Britain has in effect admitted the justice of the position now maintained by the President.

Passing the interpretation of Article VIII you will remember that I contended that the Clayton-Bulwer treaty is voidable, because, while by Article I the two nations expressly stipulated that neither of them would occupy, colonize, or exercise any dominion over any part of Central America, Great Britain at this time has a colony, with executive and judicial officers, occupying a defined territory nearly equal in area to three of the smaller States of the Union.

It is true, as was shown in my No. 368, that, after the treaty had been ratified by the Senate in the form in which it now appears, and on the 4th of July, 1850, Mr. Clayton did exchange with Sir Henry Bulwer memoranda stating that the stipulation in Article I should not apply to the “settlements” in British Honduras (Belize), and it is also true that Mr. Clayton declined to affirm or deny the British title in this “settlement” or its alleged dependencies. Lord Granville now claims that Honduras [Page 420]was then already (and to the knowledge of this Government) a British “possession” or colony, by conquest from Spain, through successful resistance by settlers to a Spanish attack. The stipulations of the treaty, as well as the memoranda exchanged by Mr. Clayton and Sir Henry Bulwer, relative to a British “settlement,” appear to be inconsistent with any such claim, for nowhere in them can be found any statement which expresses or implies that Great Britain claimed or the United States admitted any such governmental control in the former over Belize as is now advanced and as is necessarily implied in the word “possessions.”

The date of the conquest of Belize, alluded to by Lord Granville, is not stated, but the incident to which he refers is supposed to be the repulse, by a ship of the Royal Navy and the settlers, of an attempt, in 1798, on the part of Spain to take possession of Honduras. As the British settlers held under grants from Spain, it seems hardly necessary to consider whether the successful resistance of a tenant to an attempt to oust by force changes the tenure to one of full possession.

His lordship, however, meets this point by a plea of possession through abandonment, saying:

When peace was signed, most of the British conquests from Spain were restored to her; hut the settlement in Honduras, like that of the Falkland Islands, was not given up, and continued on the same footing as any other possession under the British Crown.

By the third article of the treaty of Amiens of 1802, Great Britain engaged to restore all Spanish possessions occupied or conquered by British forces. Belize was not given up because it was not a conquest, but a settlement under Spanish grants and Spanish sovereignty. The parallel with the Falkland Islands does not seem convincing, for these islands were ceded by France to Spain in 1763. By Spain they were in turn ceded absolutely to Great Britain in 1771, but their possession was abandoned, until, in 1820, Buenos Ayres occupied the islands as derelict, and colonized them. Later, in 1831, after a difficulty between the settlers and American sealing vessels, the United States ship of war Lexington broke up the settlement and removed the settlers to Buenos Ayres, and it was not until 1833 that Great Britain enforced her claim under the cession of 1771.

As to Belize, however, there was no cession. If the sovereignty of Spain was annulled by conquest in 1798, it was restored by the treaty of Amiens in 1802; and while after this treaty, and during the Bonaparte occupation, hostilities were renewed, the treaty of 1809 provided that there should be peace between Spain and Great Britain, and “also an entire obliteration of all hostilities committed during the late war.” Since the conclusion of this treaty Spain and Great Britain have been at peace, and it is not imagined that Earl Granville will seek to show that a lawful possession could be thereafter created for Great Britain by a violation of that treaty in time of peace. No conquest of any part of Honduras is known to have occurred after 1802; but if there were, the perpetuation of this conquest would hardly comport with the reciprocal engagement of 1809 to restore the status quo ante bellum.

On the other hand, it is known that the settlements in the Belize were made under certain limited grants from Spain, subject to her sovereignty, and that long after the treaty of 1809 the occupation was generally regarded simply as a “settlement,” and was so called by Lord Clarendon as late as 1854 in a note to Mr. Buchanan, and so remained until May 12, 1862, when, by royal commission, it was erected into a full colony, and subordinated to the government of Jamaica.

[Page 421]

If Great Britain has turned the “settlement” maintained for the cutting of logwood and mahogany into an organized British colony—and this is admitted—or if that settlement has encroached beyond the line occupied by the settlers in 1850—and the reports from Guatemala and Mexico tend to show that this has been done—the action has been done, the action has been taken, in contravention of the Clayton-Bulwer treaty, and in violation of one of its most important provisions. The insufficiency of this part of Lord Granville’s argument is shown by the contention that through a postal convention this Government has recognized the British position. The negotiation of a postal convention in 1869 cannot be held to involve any admission of the political status of the Belize district.

It is a strained construction of such an agreement to hold that it works an estoppel, as to a matter not in the mind of either party to the negotiation, and as to which both parties were endeavoring to reach a satisfactory conclusion through other and different channels; nor does the Post-Office Department act politically in its dealings with similar departments of other Governments.

If, however, the United States had submitted to the conversion of the Belize to a colony by Her Majesty’s Government, in violation of the treaty, that is by no means a recognition of the binding force of the treaty on the United States when thus violated.

In the conviction, therefore, that the arguments heretofore presented by the United States remain unshaken, the President adheres to the views set forth in the instruction to you of May 8, 1882.

Lord Granville concludes by saying in effect that he does not answer that part of the instruction to you which relates to the Monroe doctrine because of my observation that it is not necessary for Her Majesty’s Government to admit or deny that doctrine. As his lordship placed the claim of Her Majesty’s Government on, the continued binding force of the Clayton-Bulwer treaty, limiting that doctrine, as we contend, I think my remark was logical, and, so far as the United States are concerned, their views on that doctrine are sufficiently manifest.

You will assure Lord Granville that this Government shares the sincere desire of that of Her Majesty to arrive at that amicable adjustment of the question which cannot fail to promote harmony and goodwill between the two countries, and which it is my duty and pleasure equally with his lordship to do all in my power to perpetuate and increase.

You will take an early occasion to read this instruction to Lord Granville, and, if he should so desire, to leave a copy with him.

I am, &c.,

FRED’K T. FRELINGHUYSEN.