Mr. Adee to Mr. Merry.
Washington, September 12, 1902.
Sir: I have received your dispatch No. 757 of the 31st of August in reply to my instruction No. 492 of August 5 in relation to the reported detention upon the Isthmus by the Government of Colombia of certain munitions of war ordered from abroad by Nicaragua. You state that, as you have been awaiting information from the United States consul-general at Panama in relation to the merchandise in question, which had been shipped from New York to Corinto on through bill of lading and seized by the Colombian authorities on the Isthmus as the property of the Nicaraguan Government, you had not as yet communicated to President Zelaya my decision in relation to the transit of such merchandise, which, you say, “under present conditions closes the Isthmus to his (the Nicaraguan) Government.”
Feeling some hesitancy to communicate to President Zelaya the views contained in my instruction of August 5, you suggest that you represent the refusal of Colombia to permit the transit as based upon article 17 of the treaty of 1846 with New Granada, which “especially exempts the free transit of munitions of war at the option of the Government of New Granada, now Colombia,” and you add that the declaration of President Zelaya, in his telegram to you of August 30, that “there is no state of war between Nicaragua and Colombia,” does not exclude the use of the option conferred by article 17, inasmuch as “a formal declaration of war is not a necessity in inaugurating hostilities with another power.”
[Page 889]It is not perceived that the provisions of article 17 of the treaty of 1846 have any application to the present case, as that article refers to the liberty of commerce and navigation to be enjoyed by the vessels of the United States and New Granada during the existence of any war in which either of the contracting parties may be engaged. The liberty of commerce and navigation enjoyed by vessels of the United States is not interfered with by the action of Colombia in refusing to permit the transit across her territory of the arms in question. Neither does such action constitute an infraction of article 35 of the treaty, which provides for the free transit across the Isthmus of produce, manufactures, or merchandise belonging to citizens of the United States. The arms referred to are circumstantially stated to be the property of the Nicaraguan Government.
There appears to be no occasion for this Government to determine whether or not a state of war exists between Nicaragua and Colombia.
My instruction of August 5 was not intended to justify the stoppage of the arms by the Colombian Government, but showed that under our treaty with Colombia we enjoyed no right to remonstrate against the stoppage, and therefore could not intervene in what appeared to be a question solely between Colombia and Nicaragua. It would evidently not be appropriate for this Government to express a judgment as to the merits of the case and take ground adversely to either party by declaring that the stoppage of the arms either was or was not rightful.
I am, etc.,
Acting Secretary.