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to the other, in either direction, for the purpose of exportation to any other foreign country, shall not be liable to any import duties whatever; or, having paid such duties, they shall be entitled to draw back upon their exportation; nor shall the citizens of the United States be liable to any duties, tolls or charges of any kind, to which native citizens are not subjected for thus passing the said Isthmus. And, in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages, and for the favors they have acquired by the 4th, 5th, and 6th articles of this treaty, the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.
“2d. The present treaty shall remain in full force and vigor for the term of twenty years from the day of the exchange of the ratifications; and from the same day the treaty that was concluded between the United States and Colombia, on the thirteenth of October, 1824, shall cease to have effect, notwithstanding what was disposed in the first point of its 31st article.
“3d. Notwithstanding the foregoing, if neither party notifies to the other its intention of reforming any of, or all, the articles of this treaty twelve months before the expiration of the twenty years stipulated above, the said treaty shall continue binding on both parties beyond the said twenty years, until twelve months from the time that one of the parties notifies its intention of proceeding to a reform.
4th. If any one or more of the citizens of either party shall infringe any of the articles of this treaty, such citizens shall be held personally responsible for the same, and the harmony and good correspondence between the nations shall not be interrupted thereby; each party engaging in no way to protect the offender, or sanction such violation.
“5th. If unfortunately any of the articles contained in this treaty should be violated or infringed in any way whatever, it is expressly stipulated that neither of the two contracting parties shall ordain or authorize any acts of reprisal, nor shall declare war against the other on complaints of injuries or damages, until the said party considering itself offended shall have laid before the other a statement of such injuries or damages, verified by competent proofs, demanding justice and satisfaction, and the same shall have been denied, in violation of the laws and of international right.
“ 6th. Any special or remarkable advantages that one or the other power may enjoy from the foregoing stipulation, are and ought to be always understood in virtue and as in compensation of the obligations
they have just contracted, and which have been specified in the first number of this article.”
Art. 35, treaty between the United States and New Granada (now Republic
of Colombia), Dec. 12, 1846. (Treaties and Conventions, 204–5.) The treaty was approved by the United States Senate, June 3, 1848, by the
following vote: Yeas-Messrs. Atchison, Atherton, Badger, Bagby, Benton, Berrien, Bor
land, Bradbury, Bright, Butler, Calhoun, Davis of Mississippi, Dickin-
Miller, and Upham-7. (Exec. Journal, VII. 424.)
informed me that a protracted debate would have arisen on the 35th
MS. Inst. Colombia, XV. 112.)
changes the United States of Colombia and later the Republic of Colom-
of the treaty of 1846. The ratifications of the treaty were exchanged June 10, 1848; and, as appears
by the text of art. 35, it was to remain in force twenty years and thereafter, subject to its being “reformed " in the manner therein pointed out. Jan. 23, 1867, Gen. Salgar, the Colombian minister in Washington, stated in a note that he had been instructed to enter on a negotiation for the modification of the treaty. It does not appear, however, that the proposed discussion ever took place, and the two governments concurred in the view that the treaty remained in force. (Mr. Fish, Sec. of State, to Mr. Perez, Colombian min.. Feb. 8. 1871; Mr. Perez to Mr. Fish, Feb. 13, 1871, and April 15, 1871; Mr. Fish to Mr. Perez, May 27,
1871: For. Rel. 1871, 243-248.) See report of Mr. Buchanan. Sec. of State, May 7, 1846, with correspondence
with United States ministers abroad on the subject of a ship canal across the Isthmus of Panama, and a paper by Mr. Henry Wheaton on water communication between Europe and the East Indies via Egypt and the Red Sea, and between the Atlantic and Pacific via Tehuantepec, Nicaragua, Darien, and Rio Atrato and Rio Choco. (S. Ex. Doc. 339, 29 Cong. 1 sess.)
(1) PRESIDENT POLK'S MESSAGE.
“I transmit to the Senate, for their advice with regard to its ratifi. cation, “A general treaty of peace, amity, navigation and commerce between the United States of America and the Republic of New Granada,' concluded at Bogota on the 12th December, last, by Benjamin A. Bidlack, chargé d'affaires of the United States, on their part, and by Manuel Maria Mallarino, secretary of state and foreign relations, on the part of that Republic.
“It will be perceived, by the 35th article of this treaty, that New Granada proposes to guarantee to the Government and citizens of the United States the right of passage across the Isthmus of Panama over the natural roads and over any canal or railroad which may be constructed to unite the two seas, on condition that the United States shall make a similar guarantee to New Granada of the neutrality of this portion of her territory and her sovereignty over the same.
“The reasons which caused the insertion of this important stipulation in the treaty will be fully made known to the Senate by the accompanying documents. From these it will appear that our chargé d'affaires acted, in this particular, upon his own responsibility and without instructions. Under such circumstances it became my duty to decide whether I would submit the treaty to the Senate; and after mature consideration, I have determined to adopt this course.
“The importance of this concession to the commercial and political interests of the United States cannot easily be overrated. The route by the Isthmus of Panama is the shortest between the two oceans, and from the information herewith communicated, it would seem to be the most practicable for a railroad or canal.
“The vast advantages to our commerce which would result from such a communication, not only with the west coast of America, but with Asia and the islands of the Pacific, are too obvious to require
Such a passage would relieve us from a long and dangerous navigation of more than nine thousand miles around Cape Horn, and render our communication with our own possessions on the northwest coast of America comparatively easy and speedy.
“The communication across Isthmus has attracted the attention of the Government of the United States ever since the independence of the South American Republics. On the 3d of March, 1835, a resolution passed the Senate in the following words: [IIere follows the resolution, as given supra.]
“No person can be more deeply sensible than myself of the danger of entangling alliances with any foreign nation. That we should avoid such alliances, has become a maxim of our policy consecrated by the most venerated names which adorn our history and sanctioned by the unanimous voice of the American people. Our own experience has taught us the wisdom of this maxim in the only instance, that of the guarantee to France of her American possessions, in which we have ever entered into such an alliance. If, therefore, the very peculiar circumstances of the present case do not greatly impair if not altogether destroy the force of this objection, then we ought not to enter into the stipulation, whatever may be its advantages. The
general considerations which have induced me to transmit the treaty to the Senate for their advice may be summed up in the following particulars:
“1. The treaty does not propose to guarantee a territory to a foreign nation in which the United States will have no common interest with that nation. On the contrary, we are more deeply and directly interested in the subject of this guarantee than New Granada herself or any other country.
“2. The guarantee does not extend to the territories of New Granada generally, but is confined to the single province of the Isthmus of Panama, where we shall acquire by the treaty a common and co-extensive right of passage with herself.
“3. It will constitute no alliance for any political object, but for a purely commercial purpose, in which all the navigating nations of the world have a common interest.
“4. In entering into the mutual guarantees proposed by the 35th article of the treaty, neither the Government of New Granada nor that of the United States has any narrow or exclusive views. The ultimate object, as presented by the Senate of the United States in their resolution [of March 3, 1835] to which I have already referred, is to secure to all nations the free and equal right of passage over the Isthmus. If the United States, as the chief of the American nations, should first become a party to this guarantee, it can not be doubted, indeed it is confidently expected by the Government of New Granada, that similar guarantees will be given to that Republic by Great Britain and France. Should the proposition thus tendered be rejected, we may deprive the United States of the just influence which its acceptance might secure to them, and confer the glory and benefits of being the first among the nations in concluding such an arrangement upon the Government either of Great Britain or France. That either of these Governments would embrace the offer can not be doubted; because there does not appear to be any other effectual means of securing to all nations the advantages of this important passage but the guarantee of great commercial powers that the Isthmus shall be neutral territory. The interests of the world at stake are so important that the security of this passage between the two oceans can not be suffered to depend upon the wars and revolutions which may arise among different nations.
“Besides, such a guarantee is almost indispensable to the construction of a railroad or canal across the territory. Neither sovereign states nor individuals would expend their capital in the construction of these expensive works without some such security for their investments.
“The guarantee of the sovereignty of New Granada over the Isthmus is a natural consequence of the guarantee of its neutrality, and there does not seem to be any other practicable mode of securing the neutrality of this territory. New Granada would not consent to yield up this province in order that it might become a neutral state, and if she should, it is not sufficiently populous or wealthy to establish and maintain an independent sovereignty. But a civil government must exist there in order to protect the works which shall be constructed. New Granada is a power which will not excite the jealousy of any nation. If Great Britain, France, or the United States held the soyereignty over the Isthmus other nations might apprehend that in case of war the Government would close up the passage against the enemy; but no such fears can ever be entertained in regard to New Granada.
“This treaty removes the heavy discriminating duties against us in the ports of New Granada which have nearly destroyed our commerce and navigation with that Republic, and which we have been in vain endeavoring to abolish for the last twenty years.
“It may be proper also to call the attention of the Senate to the 25th article of the treaty, which prohibits privateering in case of war between the two Republies; and also to the additional article which nationalizes all vessels of the parties which shall be provided by the respective Governments with a patent issued according to its laws,' and in this particular goes further than any of our former treaties."
President Polk, message to the Senate, Feb. 10, 1847, Executive Journal,
(2) SUBSEQUENT ACTS AND INTERPRETATIONS.
Nov. 1, 1849, Mr. Thomas W. Ludlow, president of the Panama
Railroad Company, requested that Mr. Lawrence, Isthmian “neutral
United States minister at London, might be instructed ity;" action of Mr. Clayton.
to cooperate with the minister of New Granada in
that capital in obtaining from the British Government a guaranty of the neutrality of the Isthmus of Panama similar to that contained in Art. XXXV. of the treaty of 1816. Mr. Lawrence was instructed accordingly. It was in his instructions declared to be “of the utmost importance, especially in consideration of the opinions expressed by Lord Palmerston with reference to the Spanish American States who are delinquent debtors of British subjects, that the British Government should guarantee the neutrality of the Isthimus of Panama as amply as this has been done by the United States. For this purpose, it would be preferable that Great Britain and New Granada should themselves enter into treaty stipulations. . . . If, however, you shall ascertain that the British Government would not enter into such a treaty with New Granada, you may then sound Lord Palmerston as to the disposition of his Government to conclude one with the United States for the same purpose.”