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United States was a party has given rise to discussions at once so complicated and so prolonged.
The immediate object of the Clayton-Bulwer treaty, as stated in the preamble, was the "setting forth and fixing" of the "views and intentions" of the two governments with reference to a ship canal between the Atlantic and the Pacific by what is known as the Nicaragua route. The construction of such a canal by a private company, chartered by the governments through whose territories the route lay, seemed then to be near accomplishment. By the unauthorized convention concluded by Elijah Hise with Nicaragua on June 21, 1849, Nicaragua undertook to grant to the United States the “exclusive right and privilege” to build an interoceanic way through Nicaraguan territory; and it was stipulated (Article III) that if the United States should not do the work, either the President or the Congress should issue a charter to some one for the purpose. The treaty was not submitted to the United States Senate; and in the debates in that body, in March, 1853, on questions growing out of the ClaytonBulwer treaty, Mr. Clayton, who had then returned to the Senate, found no one to controvert his assertion that the government of the United States had no constitutional power to construct a way in foreign jurisdiction or to charter a company for that purpose.
The Clayton-Bulwer treaty was based upon the principle of neutralization. While binding the contracting parties to protect the canal from "interruption, seizure, or unjust confiscation," it also pledged them to “guarantee" its “neutrality," so that it might “forever be open and free," and, for the full attainment of this object, to invite other powers to enter into similar stipulations with them, “to the end that all other states may share in the honor and advantage of having contributed to a work of such general interest and importance." But the treaty went further. It declared (Article VIII) that the contracting parties, in entering into it, had desired not only to accomplish a “particular object,” but also to “establish a general principle," and that they therefore agreed “to extend their protection, by treaty stipulations, to any other practicable communications, whether by canal or railway,” across the isthmus connecting North and South America, and especially to the communications then projected by way of Tehuantepec or Panama; it being understood, as a condition of such joint protection, that the charges or conditions of traffic" should be "just and equitable” to the citizens of every state willing to participate in such protection. In reality, the railway across the Isthmus of Panama was then under construction by American capitalists, and steps had already been taken by the United States and New Granada (afterwards Colombia) towards its neutralization, the treaty of 1846 (Article XXXV) having assured to the United States the "free and open
transit across the isthmus by any mode of communication then or thereafter existing, while the United States, as “an especial compensation,” guaranteed to New Granada, “positively and efficaciously,” the “perfect neutrality" of the isthmus and her “rights of sovereignty and property” over that territory.
After the Civil War in the United States the tone of public utterances changed. A demand sprang up for a canal under American control. This demand gained in strength after Great Britain's acquisition of virtual control of the Suez Canal and still more after her occupation of Egypt. Eventually the United States took steps to build the canal by its own means. But the stipulations of the ClaytonBulwer treaty seemed to stand in the way, and particularly, so far as concerned the Nicaragua route, the stipulation that neither contracting party would "ever obtain or maintain for itself any exclusive control" over the canal in that quarter, or erect or maintain any fortifications commanding or near it, "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."
On February 5, 1900, there was signed at Washington by Mr. Hay, Secretary of State, and Lord Pauncefote, British ambassador, a convention, the object of which was declared to be to remove any objection to the construction of the canal under the auspices of the government of the United States, without impairing the “general principle' of neu-.
tralization" established by Article VIII of the Clayton-Bulwer treaty. It was therefore agreed that that treaty should be considered as superseded, and that certain rules, substantially the same as those found in the convention of Constantinople of October 29, 1888, relating to the Suez Canal, should be adopted as the basis of "neutralization.” The Senate amended the treaty in several essential points, including (1) the elimination of a clause by which the contracting parties agreed to invite the adhesion of other powers, and (2) the insertion of a proviso that the rules should not apply to measures which the United States might "find it necessary to take for securing by its own forces the defence of the United States and the maintenance of public order."
In making these amendments the Senate no doubt was influenced by the consideration that, as stated by Mr. Curzon, British Under Secretary of State for Foreign Affairs, in the House of Commons, July 22, 1898, the convention of Constantinople had never “been brought into practical operation.” The amendments gave rise to further negotiations, which resulted in the signing at Washington, November 18, 1901, of the second Hay-Pauncefote treaty. This arrangement was duly ratified. It did not inhibit the fortification of the canal by the United States, but provided that “no change of territorial sovereignty or of the international relations of the country or countries traversed” by the canal should affect the "general principle of neutralization or the
obligations of the high contracting parties" under the "present treaty.'
Coincidently with the removal of obstacles to the building and control of the canal by the United States, the Nicaragua was abandoned for the Panama route, and a treaty for a right of way was soon signed with Colombia as sovereign of the isthmus. The Colombian Congress, affirming that the terms of the treaty as concluded infringed the national sovereignty and were contrary to the national constitution and laws, declined to ratify it. Panama then declared its independence, which was promptly recognized and supported by the United States, and on February 18, 1903, entered into a treaty granting to the latter in perpetuity a zone ten miles wide and certain adjacent islands for the purposes of a canal. Colombia vigorously protested, invoking particularly Article XXXV of the treaty of 1846, and a controversy ensued which is not yet ended. A treaty signed at Bogotá on April 6, 1914, providing for the payment to Colombia of the sum of $25,000,000, with other compensations, has not as yet passed the United States Senate, where objection is understood to have been made both to the amount of money to be paid and also to a clause expressing, in the name of the government and people of the United States, “sincere regret that anything should have occurred to interrupt or to mar the relations of cordial friendship that had so long subsisted between the two nations."