improbable that the Congress of New Granada, having in view the provisions of the constitution and well aware that the treaty secured to the United States the right to send troops across the Isthmus, intended, by giving its sanction to the treaty, to confirm the privilege pursuant to the constitution itself. New Granada had, declared Mr. Marcy, received from the United States an ample equivalent for any sacrifices she may have made in entering into the treaty.

Mr. Marcy, Sec. of State, to Mr. Paredes, Colombian chargé d'affaires, June 20, 1853, MS. Notes to Colombia, VI. 35.

The views above expressed were reaffirmed by Mr. Marcy in another note to Mr. Paredes, October 12, 1853, MS. Notes to Colombia, VI. 43.

"The one main object of your mission is an understanding, clear and explicit, with regard to the right we insist upon of transporting our troops over the Isthmus of Panama, either to or from our possessions on the Pacific. We are in condition to make the guarantee we are pledged to effective, and we expect in return the reciprocal benefits arising therefrom, also pledged to us by treaty by the Republic of Colombia."

Mr. Seward, Sec. of State, to Gen. Sickles, special agent to Colombia, March
18, 1865, MS. Inst. Special Missions. II. 35.

Gen. Sickles' principal instructions were dated January 6, 1865. In these
instructions Mr. Seward stated that the governor of Panama had lately
refused Admiral Pearson permission to send across the Isthmus for
embarkation at Aspinwall for New York “the insurgent conspirators
who had been arrested at the former place with authority and instruc-
tions found upon them to seize United States mail steamers on the
Pacific. In connection with this Mr. Seward stated that, while the
treaty did not contain any grant of a specific privilege as to the transit
of either troops or criminals, it certainly was by no forced construction
of the instrument that the privilege was claimed. It might indeed be
said that if the United States could not rightfully transport troops
between Aspinwall and Panama, it could not fulfill one of the principal
objects to New Granada for which the treaty was entered into. (MS.
Inst. Special Missions, II. 29.)
February 27. 1865, General Salgar, Colombian minister in the United
States, informed the Department of State that his Government desired
to regulate in a definitive manner the transit of United States troops
across the Isthmus. (Mr. Seward, Sec. of State, to Mr. Salgar, March
31, 1865, MS. Notes to Colombia. VI. 185.)
Mr. Burton, United States minister to Colombia, reported in his No. 173,
May 13, 1865, that the authorities of the State of Panama refused in
October 1864 to permit United States troops to cross the Isthmus. He
added, however, that in January 1865 the Colombian Government gave
confidential orders to the authorities at Panama to permit United States
troops, armed or unarmed, and materials of war to cross the Isthmus
without hindrance, at any and all times. (MS. Desp. from Colombia.)
President Murillo gave assurances to General Sickles that satisfactory
instructions would be given to the authorities on the Isthmus with
regard to the transit of United States troops. (Mr. Seward, Sec. of

State, to Mr. Burton, min. to Colombia, June 13, 1865, MS. Inst. Colombia, XVI. 130, referring to a report from Gen. Sickles of April 17, 1865.)

See, also, Mr. Seward, Sec. of State, to Mr. Burton, min. to Colombia, Sept. 15, and Sept. 27, 1865, MS. Inst. Colombia, XVI. 139, 140.

In acknowledging the receipt of Mr. Burton's 247 of June 26, 1866, setting forth certain limitations proposed by the president of Panama to the right of transit of the United States over the Isthmus, but at the same time expressing the opinion that the proposed change had been abandoned, the Department of State said: "The United States must be understood as not assenting to this proposed change in the orders of the president of Panama of May 13, 1865. But it is perhaps best to avoid all unnecessary discussion of the matter." (Mr. Hunter, Second Assist. Sec. of State, to Mr. Burton, min. to Colombia, Aug. 31, 1866, MS. Inst. Colombia, XVI. 199.)

He On

In September 1865, Mr. Alexander McKee, United States consul at Panama,
died. On the day of the funeral (Sept. 4), Admiral Pearson landed
with a small marine guard, provided with cartridges without balls, and
an unarmed band of music, with a view to attend the ceremonies.
had given no previous notice of his intentions to the authorities.
September 6 the president of Panama wrote to the Admiral, complain-
ing of his action, and stating that it was expected that permission would
in future be asked for landing armed forces; that he himself and other
functionaries intended to be present at the funeral but abstained when
they saw the naval forces landed. Further correspondence was
exchanged. Mr. Seward expressed the opinion that the entire con-
troversy was uncalled for. He thought that the admiral should have
given notice of his intentions to the authorities, and that, when he
landed without having done so, they had a right to ask for an explana-
tion, but not of the admiral, who was not the proper person to address
for the purpose. The president of Panama had taken a “jealous atti-
tude." (MSS. Dept. of State.)

By a protocol signed February 22, 1879, by Mr. Arosemena, minister of foreign relations of Colombia, and Mr. Dichman, minister resident of the United States at Bogotá, it was declared that, in conformity with the note of the secretary of foreign relations of Colombia to the government of the State of Panama of May 15, 1865, the troops of the United States, as well as prisoners under federal jurisdiction, "can pass as the usual service of its administration, a right which is established in compensation for the guarantee of the sovereignty and property of the isthmus, to which the same government is bound." The protocol was approved by the Colombian Senate and also by the Secretary of State of the United States.

Moore on Extradition, I. 714-718; For. Rel. 1879, 273-277, 284.

(6) FUGITIVES FROM JUSTICE.
$ 349.

In 1878 one Scrafford, who had been delivered up by Peru to the United States on a charge of forgery, was about to be taken across the Isthmus of Panama by the agent of the United States, when he

was released by the governor of Panama. The United States complained, and negotiations were entered upon for a definition of the right of transit under Art. XXXV. of the treaty of 1846. The negotiations resulted in the conclusion, February 22, 1879, of a protocol by which the right of transit of the Government of the United States, in respect of fugitives from justice, as well as of military forces, was recognized by the Government of Colombia. By a supplementary protocol of October 23, 1879, it was provided that the custody of pris oners, whose transportation across the Isthmus should be requested by the United States, should be kept by a civil officer of the United States, accompanied by a Colombia civil officer, who should ask the proper authorities, if necessary, for the assistance of the national or State forces, in order to secure the due detention and transportation of the prisoner.

Moore on Extradition, I. 713-718; For. Rel. 1878, 151-155; For. Rel. 1879, 251-254, 271, 273-277, 284; For. Rel. 1880, 319, 322.

In January 1865 Mr. Seward complained that the governor of Panama had lately refused Admiral Pearson permission to send across the Isthmus for embarkation at Aspinwall for New York "the insurgent conspirators who had been arrested at the former place with authority and instructions found upon them to seize United States mail steamers on the Pacific." (Mr. Seward, Sec. of State, to Gen. Sickles, Jan. 6, 1865, MS. Inst. Special Missions, II. 29. See supra, § 348.)

(7) TELEGRAPHIC COMMUNICATION.

§ 350.

In January 1886 complaint was made by the Central and South American Telegraph Company of New York that the operations of the French Panama Canal Company in the Bay of Panama were endangering the cable of the former company at that point. The matter was brought to the attention of the Colombian minister at Washington, who invoked, by cable, the interposition of his Government.

The French company avowed its control of the land line of telegraph operated in connection with the Panama Railroad Company, and asserted its determination to retain the monopoly alleged to have been derived from the railroad concession, while the railroad company gave notice on its part that the wire was a private wire" and that messages between Panama and Colon were sent "by courtesy." In this relation the Department of State said: "It is very evident, without resorting to elaborate argument, that if telegraphic facilities are among the means of interoceanic communication covered by the treaty [of 1846], they must be open and public and their free and neutral use fully secured. The announcement that the railroad and canal companies' telegraph line from Colon to Panama is a private wire, and that the use of it by the Governments of the United States and Colombia and by the commercial public is permissive only, is, if true, H. Doc. 551-vol 3- -9

abundant demonstration that no trans-isthmian telegraphic communication now exists such as was contemplated and falls under the necessary guaranties of the treaty of 1846. That instrument guaranties to us 'equal, tranquil, and constant use' of whatever means of transit are provided for correspondence,' and the telegraph is assuredly the most important and useful of all such means."

Mr. Bayard, Sec. of State, to Mr. Maury, min. to Colombia, Feb. 25, 1887,
For. Rel. 1888, I. 405.

As to the complaint made by the Central and South American Telegraph
Company, see Mr. Bayard, Sec. of State, to Mr. Becerra, Colombian
min., Jan. 23, 1886, MS. Notes to Colombia, VII. 77; Mr. Bayard, Sec.
of State, to Mr. Scrymser, President of Central and South American
Telegraph Co., Feb. 6, 1886, 158 MS. Dom. Let. 669.
With regard to the monopoly claimed by the Panama Railroad Company of
the telegraph line across the Isthmus, the Colombian minister of for-
eign affairs, December 28, 1887, stated that his Government. availing
itself of the right to construct public works of that kind within its own
territory, had resolved to establish in the Department of Panama a
national telegraph line of which the United States could have the use,
with the assurance that its communications would meet with no obstruc-
tions. Satisfaction was expressed by the United States with this
announcement. (For. Rel. 1888, I. 407-408.)

III. CLAYTON-BULWER TREATY.

1. THE TREATY AND ITS ANTECEDENTS.

§ 351.

April 19, 1850, Mr. John M. Clayton, Secretary of State, and Sir Henry Lytton Bulwer, British minister at Washington, signed at that capital a treaty, the object of which was in the preamble declared to be to set forth and fix in a convention the "views and intentions" of the contracting parties "with reference to any means of communication by ship canal which may be constructed between the Atlantic and Pacific Oceans by the way of the river San Juan de Nicaragua, and either or both of the lakes of Nicaragua or Managua, to any port or place on the Pacific Ocean.”

By Article I. of the treaty it was provided as follows:

"The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America; nor will either make use of any protection which either affords or may afford, or any alliance which either has or may have to or with any State or people for the purpose of erecting or maintaining any such fortifica

tions, or of occupying, fortifying, or colonizing Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America, or of assuming or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection, or influence that either may possess, with any State or Government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one any rights or advantages in regard to commerce or navigation through the said canal which shall not be offered on the same terms to the citizens or subjects of the other."

By Article II. it was agreed that American or British vessels traversing the canal should, in case of war between the contracting parties, be exempt from blockade, detention or capture by either of the belligerents, and that this provision should extend to such a distance from the ends of the canal as it might be found convenient to establish.

In order to assure the construction of the canal, the contracting parties (Art. III.) engaged that, if it should be undertaken upon fair and equitable terms, by persons having the authority of the local governments through whose territory it might pass, they would protect such persons and their property from the commencement to the completion of the canal "from unjust detention, confiscation, seizure, or any violence whatsoever."

It was also provided (Art. IV.) that the contracting parties should use (1) their influence with the local governments to induce them to facilitate the construction of the canal, and (2) their good offices to procure the establishment of two free ports, one at each end of the canal.

The contracting parties further engaged (Art. V.), when the interoceanic canal was completed, to “protect it from interruption, seizure, or unjust confiscation," and to "guarantee the neutrality thereof, so that the said canal may forever be open and free, and the capital invested therein secure." It was, however, expressly understood that the guarantee of protection and security was given conditionally and might be withdrawn by both governments or either government, if both or either of them should consider that the persons or company undertaking or managing the canal had established regulations concerning traffic contrary to the spirit and intention of the convention, either by making unfair discriminations or by imposing oppressive exactions or unreasonable tolls.

By Article VI. of the treaty the contracting parties entered into the following engagements:

"The contracting parties in this convention engage to invite every State with which both or either have friendly intercourse to enter into stipulations with them similar to those which they have entered into with each other, to the end that all other States may share in the honor