Mr. Merry to Mr. Hay.
San José, August 31, 1902.
Sir: I have the honor to forward herewith copy and translation of telegram received last evening from President Zelaya, of Nicaragua, and my reply thereto. Since receipt of your No. 492 of August 5 I have awaited information from the United States consul-general at Panama in relation to the merchandise therein alluded to, shipped from New York to Corinto on through bill of lading and seized by Colombian authorities on the Isthmus as the property of the Nicaraguan Government. Consequently I have not as yet communicated to President Zelaya your decision in relation to the transit of such merchandise which, under the present conditions, closes the Isthmus to his Government.
You will note by President Zelaya’s telegram herewith inclosed that the 16 boxes of revolver cartridges alluded to have been returned to New York, whence they were shipped. Carefully reading the treaty of 1846 with New Granada it appears to me that, independent of your decision that said treaty “is not in the interest of other states, who have no right to invoke the application of the treaty,” article 17 thereof especially exempts the free transit of munitions of war, at the option of the Government of New Granada (now Colombia). Possibly this may be a more agreeable argument to present the Nicaraguan Government than that above quoted. Certainly it has been the generally accepted idea in Central and South America that the United States guarantee the free transit across the Panama Isthmus of all classes of merchandise except contraband of war, the property of any nation with which the United States or Colombia may be at war when such transit is attempted.
You will notice that this is apparently the opinion of the United States consul general at Panama, as set forth in his No. 310 of July 21, to the Department, since, had he considered the interference usual or authorized, no report thereof would have been necessary. You will also note that President Zelaya construes the treaty in the same manner, claiming free transit for munitions of war because “there is no state of way” between Nicaragua and Colombia, when both their Governments have recently permitted the use of their armed vessels to commit acts of war against each other. If I am correctly informed, a formal “declaration of war” is not a necessity in inaugurating hostilities with another power. * * * Having your instructions in this connection, as set forth in your No. 492, of August 5, I shall be guided thereby, but have deemed it proper to inform you of the second request of President Zelaya, as set forth in his last telegram.
With assurances, etc.,