Ernest Dichman to Evarts, March 17, 1879

No. 129. Mr. Dichman to Mr. Evarts.

Sir: The inclosed copy of a protocol, and translation of the same, on the subject of the right of transit across the Isthmus of Panama, guaranteed to the government of the United States by the 35th article of the treaty of 1846, concludes, I trust, the negotiations which I have carried on with this government in obedience to your instructions contained in your Nos. 12 and 23.

The original will be forwarded by the first safe opportunity. For the files of the legation I have obtained a certified copy.

In the course of the negotiation various expedients were proposed by the Colombian secretary of foreign relations for the purpose of avoiding the direct issue in question, and in pursuance of the views indicated by his predecessor in his letter to the Department of State dated July 1, 1878. Among others, he submitted to me the draft for a new convention, explanatory of the existing treaty in reference to the subject in question, but as this draft contained the objectionable feature of allowing the exercise of a discretion to the State government of Panama, in refusing the right of transit to prisoners in the custody of the government of the United States under certain circumstances, and as also, in my opinion, the multiplying of conventions on a subject clearly within the provision of an existing treaty, is a matter of doubtful policy or propriety. I was obliged to decline the proposals made by the Colombian secretary, and instead thereof urged upon him the desirability of arriving at a common accord on the question at issue, by giving a satisfactory construction to article 35 of the treaty of 1846. At the same time I was free to admit that while I considered the right of the government of the United States to the “innocent use” of the right of way or transit as a “perfect right” under the treaty, I was ready to acknowledge the propriety of adopting such reasonable regulations for the exercise of the same as would assure to the government of the United States a practical enjoyment thereof.

The objections raised on account of the Colombian constitution were met by the arguments set forth in my previous communication to the Colombian Government, a copy of which was inclosed in my No. 17 to the Department, supported by citations from Calvo, Bello, and other Spanish writers on international law, to whose works I also referred for authorities in the construction of the language used in article 35 of the treaty. I also took occasion to suggest that the doctrines maintained by the government of Colombia in regard to the sheltering and protecting power of articles 10 and 15 of the Colombian constitution might, at some future time, prove highly inconvenient to the government of this Republic in making it an impossibility to repel an undesirable emigration of criminals who would wish to avail themselves of this country as a place of refuge.

The ever-present danger to the sovereignty of his country, which, to the Colombian statesman, is something to be apprehended in his intercourse with other nations, and which was brought forward on this occasion as a standing objection, was disposed of in the manner indicated in the communication to which reference was made above, in which I set forth clearly that inasmuch as the government of the United States had guarantied the sovereignty and property of the Isthmus of Panama to the United States of Colombia by the solemn obligation of a treaty, it was, to say the least, an inconsistent view that any apprehensions should be entertained of, or any precautions need be taken against, the guaranteeing power.

The subject was discussed several times by the President and cabinet, and when finally the secretary of foreign relations informed me that his government acknowledged the justice of the position of the Government of the United States, the question arose as to the manner in which this acknowledgment of the Colombian Government should be expressed and how the exercise of the right of transit thus conceded to pertain to the Government of the United States should be regulated.

Instead of a note which the secretary of foreign relations offered to write, I suggested a protocol of a conference embodying an agreement. I beg to refer here to my No. 35 in which I informed the Department of certain researches which I was making, and having made, for the purpose of finding a precedent if possible.

Among the unpublished executive communications of the Colombian Government a letter was discovered, a copy and translation of which I inclose, in answer to an inquiry made by the Government of the State of Panama, which by the use of the words “and prisoners under the Federal jurisdiction” in the second article of the letter was perfectly applicable to the settlement of the subject under consideration. As the language of the second article of this letter is so clear in setting forth the rights of the Government of the United States, and in order to make use of it as a link in the chain of precedents, I suggested that in the protocol to be drawn up and signed, the pertinent parts of this letter be inserted. You will perceive that article 1 of the protocol expresses the rights of the Government of the United States in the premises clearly and distinctly, and is a clear statement of the rights and obligations of both governments.

Article 2 of the protocol relates to the manner in which the right of transit is to be exercised by the Government of the United States in the case of prisoners. A distinction is made between prisoners extradited from other countries and those taken from one part of the United States to another. In the former case the documents upon which the extradition has taken place are to be shown to the agents of the Colombian Government at Panama, merely as an act of notification$ in the latter case no such formality is necessary.

Concerning article 3 of the protocol, I beg to refer to the correspondence in inclosures Nos. 3 and 4. In addition to the views therein expressed, I am of the opinion that the custody of any prisoner of the United States during the time of transit and embarkation by the Colombian authorities, will save a great deal of trouble and annoyance to any officer in charge of such prisoner.

The accompanying correspondence, contained in inclosures No. 3 and 4, also expresses my views in regard to article 4. As the Colombian secretary requested that the same should be inserted, I expressed a willingness to sign the protocol with the distinct understanding expressed in my letter of February 22, contained in inclosure No. 3.

After the signing of the protocol and the delivery of my note of February 22, 1879 (inclosure No. 3), and before Dr. Arosemena could answer the same as agreed upon, the Colombian Senate deprived him of the power of so doing by refusing to confirm his nomination.

In order that this matter should be closed up by an answer to the note of February 22, I have delayed this dispatch until this answer could be obtained from the successor of Dr. Arosemena. I beg to refer to it as inclosure No. 4.

As soon as the protocol is published in the official newspaper (Diario Oficial), I shall send copies of the same to the consuls of the United States at Aspinwall and Panama.

I trust that the result of my actions will meet with your approval.

I am, &c.,