Allan A. Burton to William H. Seward, November 5, 1865

Mr. Burton to Mr. Seward

Sir: I have the honor to enclose the annexed correspondence with the United States consuls and naval officers at Aspinwall and Panama, which relates more particularly to the late disturbances on the isthmus, of which the department has doubtless already been fully informed.

From the tenor of the note of Consul Davenport and acting Rear-Admiral Pearson, of September 26th, 1865, marked Gr and H, I infer that my note of July 1st, 1865, attached to my No. 190, and that of August 31st, 1865, (A,) hereto annexed, have not been understood in the sense intended. They appear to have been interpreted by those gentlemen as instructions from me to them. Such was not my intention. When I wrote I supposed that, as a matter of course, from their proximity to Washington, they had been, or certainly soon would be, fully instructed as to their duties, on the happening of certain events for some time before expected to take place on the isthmus. My object, therefore, was to give these officers, and others near the place of anticipated disturbances, official notice of what this government expected in a given state of case, to which I ventured to add my own opinion, to go for what it was worth in itself. That they being thus advised might, perhaps, be better enabled to execute the orders of their respective departments, according to their own views of duty. In short, what I wrote was for their information, and not for their guidance, as I think the papers clearly show.

My opinion was based on that expressed by our government under analogous circumstances in 1862. That expression was a law to me in itself, but appeared moreover to be supported by strong reasons, some of which I beg to be allowed to state in reply to the views of Consul Davenport and acting Rear-Admiral Pearson, for whose opinions I have the highest respect.

By the constitution of Colombia the individual States are sovereign and independent of each other; as much so, both in theory and in fact, for the purpose of the present question, as Colombia and Peru.

It is the declared constitutional duty of the national government to prevent and repel, by all the means at its command, any invasion of one State by another. Such an invasion is a violation of the national sovereignty in the invaded State. This is particularly the case in the State of Panama, where certain important rights of sovereignty have been reserved to the national government, which it has not in the other States.

The invasion of the State of Panama in August last, from the State of Cauca, was none the less a violation of the national sovereignty over the isthmus on account of its want of the sanction of the latter State.

The effect was precisely the same hostility to, and the trampling on, the national right and authority, and consequently creating a state of affairs which required the national government to move in the fulfilment of its constitutional duty. This duty was in nowise modified by the fact that some of the chiefs who led the invasion were expelled citizens of Panama.

It is understood that most of the officers, and all of the soldiers of the invading forces, were citizens of the State of Cauca; they carried no recognized flag, and were subject to no regular or recognized authority; they sought to make irregular war on the people and recognized legitimate government of a State which the general government was bound to protect against such incursions, and were therefore not inaptly characterized as bandits. To require the forcible intervention of the national government, it was enough that hostilities came from without the limits of the State of Panama.

The circumstance that the invaders came in a vessel carrying the colors of a foreign nation, instead of taking from the invasion its unjustifiable character, was calculated to inspire greater alarm and called for greater energy on the part of the government of the nation.

This being the duty of the Colombian government, the only inquiry is how far the United States are bound to aid in the performance of that duty.

To an accurate solution of this question, it is not deemed necessary to controvert the deduction of inconvenience drawn by the consul and acting rear-admiral from the interpretation of the treaty for which I contend. These are rather specious in the abstract than applicable to the true issue.

It will be sufficient to consider the single point on which they rest their argument, as a correct answer to the inquiry must necessarily spring from the justice or fallacy of their conclusions, there being no intermediate ground on which to base a third.

The point of departure in the argument advanced by them is the force given to the words of the 35th article of the treaty, “with a view that free transit of the isthmus may not be interrupted,” and the conclusion reached, that the obligation contracted by the United States is coextensive only with the view declared.

This, at first sight, has some claim to plausibility, but is plausible only. Had the treaty stopped here, leaving no other clue to the limits of the obligation, the inference drawn would not have been entirely wanting in force. But the treaty itself fixes unmistakably, without leaving anything to interpretation or conjecture, precisely what is to be done in order to fulfil that obligation and to effect the object in view—the securing by the United States to Colombia of a perfect neutrality of the isthmus, and in like manner her sovereignty and property in that territory; not partially or of the transit alone, but of the whole isthmus, and that perfectly. If the transit only was to be thus secured, it would have been more natural and logical to have said so and no more, by employing words more precise and in harmony with the idea intended to be expressed.

To thus limit the duty imposed by the treaty on the United States does violence to that part of it which, in plain and appropriate words, extends the guarantee of perfect neutrality, sovereignty, and property to the whole territory of the isthmus, “from its southernmost extremity until the boundary of Costa Rica,” and consequently at the same time renders superfluous, meaningless, and inoperative, no inconsiderable part of its language—a supposition not to be attributed to the negotiators of so important an agreement and their governments, who ratified it in the entire absence of ambiguity or unreasonableness. Besides, a named view or object of the guarantee is of subordinate importance, and must yield to the explicit and unconditional terms of the guarantee itself.

It is a legitimate presumption, not to be repelled or weakened by time or subsequent changes, that the contracting parties had fixed and well-defined ideas of, and specified accordingly, what acts should constitute a compliance with the obligations into which they were entering; and although such acts may now appear disproportionate to the end to be achieved, it is not for one party to disregard or diminish them without the consent of the other.

This inclination to define runs through the entire treaty—is one of its notable features; and a wise one, as it tends to avert misunderstanding, and consequently to make more efficacious its stipulations.

Many other convenient objects, not necesary or politic to have been declared, and which neither party was bound to disclose, may have induced one or both to enter into the compact.

There are patent and forcible reasons for this supposition as to Colombia. This part of her territory is remote and almost detached from the rest of the republic. It is of the highest importance to the world, and she might well have apprehended that it was looked to with a covetous eye by stronger powers. It is difficult of defence, and she had not the means of defending it. The inhabitants were but partially civilized, and its quiet and order imposed on her a weighty responsibility.

Well might Colombia, with her sad internal revolutionary experience and menaces from abroad, have feared that the presence of any body of men, from anywhere, operating hostilely to her rights and authority on any part of that peculiar territory, and especially such a body as that which invaded it from Cauca, would be dangerous not to this part alone, but to the republic itself; and therefore have sought a stipulation from the United States, which would be likely to preclude all possibility of consequences so disastrous to her security and welfare.

Furthermore, the treaty pre-supposes that the tranquil and constant enjoyment of the advantages secured by it on the isthmus to the United States is to redound chiefly to the interest of the latter. The view, then, of keeping the transit uninterrupted, and which the United States are permitted to do, is in effect a permission to them to protect their newly acquired rights on Colombian soil, (the free transit of the isthmus being the principal one,) and is in reality one of the privileges conceded to the United States, as conducive to the full enjoyment of those rights for their own benefit, and cannot in any sense be regarded as a burden to them.

But as a compensation for granting these rights and privileges, and for other important concessions made to the United States by Colombia, in articles 4, 5, and 6 of the treaty, the former take upon themselves, in turn, the burden of guaranteeing to the latter the perfect neutrality, sovereignty, and property of the whole isthmus, which Colombia, whether with or without cause is immaterial, imagined was, or might be, dangerous.

She has paid for this security, and the United States have accepted and enjoy a consideration mutually agreed upon, as adequate and just, and the view or objects, many or few, which may then have moved Colombia to purchase the right to, or that may now influence her to ask for the lawful enjoyment of the benefits resulting from her agreement, cannot concern the United States, or excuse them for failing to comply with the plain duty to which they have bound themselves.

Another feature of the guarantee is not to be overlooked. It extends to “all the rights of sovereignty and property which New Granada (now Colombia) has over the said territory.”

At the date of the treaty the now State of Panama was simply a canton of the republic, over which the national authority was supreme.

Whether, therefore, an invasion of the isthmus of Panama, or even an internal movement which puts in jeopardy the rights guaranteed to Colombia in that territory, does or does not endanger the freedom of the transit, would seem in no case to be a material or open question. It is concluded by positive stipulation.

This appears to be the clearly expressed meaning and spirit of the treaty.

The duty assumed by the United States may be inconvenient, embarrassing, and even onerous; it is nevertheless one which, when required to do so, they cannot fail to respect without dishonor, so long as they retain the corresponding benefits ceded by Colombia.

No notice has been communicated to me by this government of the occurrence mentioned in the annexed letter of Vice-Consul Robinson.

I have the honor to be, sir, your obedient servant,