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DECISIONS OF FEDERAL COURTS AND OPINIONS OF ATTORNEYS-GENERAL.
FRANCIS WHARTON, LL. D.,
AUTHOR OF A TREATISE ON CONFLICT OF LAWS, AND OF COMMENTARIES
ON AMERICAN LAW.
IN THREE VOLUMES.
ISTHMUS OF PANAMA.
I. TRANSIT OVER, BY INTERNATIONAL LAW.
Such transit cannot rightfully be closed, 287. II. TRANSIT OVER, BY TREATY WITH NEW GRANADA.
(1) Limitations of treaty, 0 288.
(2) Continuance of, \ 289. III. EFFECT OF GUARANTEE OF, UNDER TREATY.
(1) Such guarantee binds Colombia, 5 290.
(2) Does not guarantee against changes of Government, 291. IV. RELATIONS TO PARTICULAR COUNTRIES.
(1) Colombia, ) 292.
(2) Nicaragua, s 293.
(4) The Mosquito Country and Belize, g 295.
I. TRANSIT OVER, BY INTERNATIONAL LAW.
As has already been stated, navigable water-courses which traverse the dominions of two or more sovereigns, and on the freedom of which the commerce of the world in part depends, cannot, without a wrong to the commercial world as a whole, be permanently obstructed by any one of the sovereigns by whom their banks are controlled. This was the position taken by the United States in its controversy with Denmark as to the sound, and such is now the view of the leading European powers as to all great thoroughfares of trade not inclosed entire within the realm of one particular sovereign.
See supra, og 40, 147, 150e. If a canal across the Isthmus be opened, "so as to admit of the pas. sage of sea-vessels from ocean to ocean, the benefit of it ought not to be exclusively appropriated to any one nation, but should be extended to all parts of the globe, upon the payment of a just compensation or reasonable tolls."
Mr. Clay, Sec. of State, to Messrs. Anderson and Sergeant, May 8, 1826. MSS.
States, and against the military occupation of Yucatan, or its annexation
supra, Dg 57, 72. President Pierce's message of May 15, 1856, with the correspondence attached
thereto, is in Senate Ex. Doc. 68, 34th Cong., 1st sess., House Ex. Doc. 123, 34th Cong., 1st sess.
The relations of the United States to the Isthmus require that the passage across the Isthmus should be secure from danger of interruption. For this purpose, as well as for the ends of justice, exemplary punishment should be promptly inflicted upon the transgressors, and the responsibility of the Government of New Granada for the misconduct of its people should be recognized.”
Mr. Marcy, Sec. of State, to Mr. Bowlin, May 3, 1856; June 4, 1856; Dec. 3,
1856. MSS. Inst., Colombia. Lieut. Michler's report of July 14, 1857, of survey for an interoceanic canal,
is given in Senate Ex. Doc. 9, 36th Cong., 2d sess.
“The general policy of the United States concerning Central America is familiar to you. We desire to see the isthmian routes opened and free for the commerce and intercourse of the world, and we desire to see the States of that region well governed and flourishing and free from the control of all foreign powers. The position we have taken we shall adhere to, that this country will not consent to the resubjugation of those States, or to the assumption and maintenance of any European authority over them.
“The United States have acted with entire good faith in this whole matter. They have done all they could do to prevent the departure of illegal military expeditions with a view to establish themselves in that region, and at this time measures are in progress to prevent the organization and departure of another, which is said to be in preparation. Should the avowed intention of the French and British Govern. ments be carried out and their forces be landed in Nicaragua, the measure would be sure to excite a strong feeling in this country, and would greatly embarrass the efforts of the Government to bring to a satisfactory close these Central American difficulties which have been so long pending."
Mr. Cass, Sec. of State, to Mr. Mason, Nov. 25, 1858. MSS. Inst., France.
in 1858, see Mr. Cass, Sec. of State, to Mr. Molina, Nov. 26, 1860. MSS.
Notes, Cent. -Am.
is in Senate Ex. Doc. No. 62, 39th Cong., 1st sess.
13, 1876. MSS. Inst., France.
The interest of the United States in the opening of a ship-canal on the Isthmus is peculiarly great. “Our Pacific coast is so situate that, with our railroad connections, time (in case of war) would always be allowed to prepare for its defense. But with a canal through the Isthmus the same advantage would be given to a hostile fleet which would be given to friendly commerce; its line of operations and the line in which warlike demonstrations could be made, could be enormously shortened. All the treaties of neutrality in the world would fail to be a safeguard in a time of great conflict.”
Mr. Evarts, Sec. of State, to Mr. Dichman, Apr. 19, 1880. MSS. Inst., Colombia.
" This Government cannot consider itself excluded, by any arrangement between other powers or individuals to which it is not a party, from a direct interest, and if necessary a positive supervision and interposition in the execution of any project which, by completing an interoceanic connection through the Isthmus, would inaterially affect its commercial interests, change the territorial relations of its own sovereignty, and impose upon it the necessity of a foreign policy, which, whether in its feature of warlike preparation or entangling alliance, has been hitherto sedulously avoided."
Ibid. For other portions of this instruction, see supra, ở 145.
“ The policy of this country is a canal under American control. The United States cannot consent to the surrender of this control to any European power, or to any combination of European powers. If existing treaties between the United States and other nations, or if the rights of sovereignty or property of other nations stand in the way of this policy—a contingency which is not apprehended-suitable steps should be taken by just and liberal negotiations to promote and estab. lish the American policy on this subject, consistently with the rights of the nations to be affected by it.
“ The capital invested by corporations or citizens of other countries in X such an enterprise must, in a great degree, look for protection to one or
more of the great powers of the world. No European power cau intervene for such protection without adopting measures on this continent which the United States would deem wholly inadmissible. If the pro. tection of the United States is relied upon, the United States must exercise such control as will enable this country to protect its national interests and maintain the rights of those whose private capital is embarked in the work.
66 An interoceanic canal across the American Isthmus will essentially change the geographical relations between the Atlantic and Pacific coasts of the United States, and between the United States and the rest of the world. It will be the great ocean thoroughfare between our Atlantic and our Pacific shores, and virtually a part of the coast line of the United States. Our merely commercial interest in it is greater than that of all other countries, while its relations to our power and pros. perity as a nation, to our means of defense, our unity, peace, and safety, are matters of paramount concern to the people of the United States. No other great power would, under similar circumstances, fail to assert a rightful control over a work so closely and vitally affecting its interest and welfare,