Mr. Allan A. Burton to Señor José M. Rojas Garrido, June 22, 1866

Mr. Burton to Señor Garrido

The undersigned, minister resident of the United States of America, being instructed as to the views of his government concerning the matters treated of in the communication addressed him by his excellency the secretary of the interior and foreign relations of the United States of Colombia, under date of October 16, 1865, touching certain proceedings at Panama in the month of September of that year, by Rear-Admiral G. F. Pearson, on the occasion of the burial of Alexander R. McKee, esquire, late United States consul in that city, has now the honor to reply to the observations which his excellency was then pleased to make. In proceeding to do so, it may be useful to recur briefly to the facts connected with the occasion referred to, as presented in the note of his excellency and its accompanying papers.

Alexander R. McKee, esquire, late consul of the United States at Panama, departed this life on or about the 1st of September last. His death appears to have been profoundly lamented by the authorities of the United States of Colombia at that place, as well as by the citizens and naval agents of the United States who were residing there, or were on duty in the vicinity. A stranger in a foreign country, it was natural that his countrymen who were thus sojourning there should be moved to pay to his remains the customary duties of tenderness and respect.

So far as the facts can be ascertained from the papers just mentioned, it does not appear that the public authorities of Colombia, or those of the State of Panama, assumed to themselves the performance of any duties whatever in relation to the funeral obsequies of the deceased. The supposition is to be indulged that the preliminary arrangements for those obsequies were made exclusively by private and unofficial parties who had been acquaintances of the consul. It does distinctly appear that the authorities of Colombia, or those of Panama, made no communication whatever concerning the occasion to Rear-Admiral Pearson, who was then on board of the ship Lancaster in the port of Panama, and in command of the United States squadron on the Pacific.

The funeral was appointed for the 4th of September. In the morning of that day, at the hour appointed, Admiral Pearson landed from his flag-ship, attended by a small marine guard provided with cartridges without balls, and an unarmed band of music, which unarmed band and practically unarmed guard were attached to the naval service on board the flag-ship. The rear-admiral’s object in landing the marines was to pay the customary naval honors to the remains of the deceased consul. The admiral, however, had given no notice to the authorities at Panama, State or federal, of his purpose or desire to pay those honors in that form. The obsequies proceeded; the naval honors were paid by the admiral, together with the marines and band, and all are understood to have returned quietly to the flag-ship. It is not alleged that any disorder or disturbance occurred, or any offence was committed, or that there was menace otherwise than what was constituted by the fact of the landing of these naval mourners on the shores without permission previously given by the national or State authorities at Panama.

Upon this state of facts, the President of the State of Panama, one of the constituent States of the republic of Colombia, on the 6th of September addressed a note to Rear-Admiral Pearson. In that note the President of Panama stated, that on the day of the funeral he, (the President,) with the other public superior functionaries, national and State, residing in the city of Panama, were prepared to attend the funeral obsequies of the late consul, whose death was so justly deplored, when the President perceived that a party of armed people belonging to the United States marine had disembarked, together with a band of music, to do honor to the civil and military rank of Mr. McKee. This discovery, the President said, placed him under the painful necessity of declining, and causing the other authorities to decline, attending the obsequies, because no permission for such disembarcation had been asked of him, he being the first authority in the State of Panama. The President in his note alleged that it would have been very natural for him to have granted such permission, especially in consideration of the fact that neither the national nor State authorities in Panama had there any band of martial music, nor any body of troops to contribute in giving new gravity to the ceremony.

The President then argued that the disembarcation of the marines with a musical band, without permission being first solicited, might be understood unfavorably if it should pass unnoticed; that his silence on the occasion might be taken as an agreement, thereafter, for neglecting the correct usages of the law of nations.

Having made the explanation, the President closed with saying that he expected, therefore, that in case it should be necessary to disembark armed naval forces in future, it would not be done without the consent of the authority at Panama, which represented the sovereignty and independence of the nation.

Rear-Admiral Pearson replied to the President on the 8th of September to the effect following, viz: After reciting the facts in the case, the rear-admiral said that he regretted that the President had not attended the funeral services of a consul so much beloved; that he could do no less than to express also the impressions which had been made on his mind by the President’s statement of his objections to the presence of the marine guard and the marine band at the funeral ceremony.

The admiral having adverted to the facts that the marine guard were furnished with cartridges only, without balls;, that the band of music was unarmed: that their only object was to honor the remains of the consul, then took notice of the complaint of the President that the disembarcation was contrary to the rights of nations.

The admiral said he knew perfectly well that armed troops should never put foot on the territory of a friendly government without special permission from its chief; but in the present case he added: “All the city was mourning the loss of a friend, and it never occurred to me that anything I might do in honor of his memory would be taken in any other sense than joining in the general grief of all, including the President, and the other employés of the government.” “Besides,” continued the admiral,” at the time the city was overhung with a cloud of sadness, which prevented lending attention to little forms, no one thinking of anything but in contributing to the deceased, the much loved Colonel McKee, the melancholy homage, whose remains were to be immediately buried.”

Passing from that point, as it would seem to the conclusion of the President’s letter, the admiral said: “I will here take the liberty to assure your excellency that, in conformity with my orders to the squadron of my command, armed troops will land immediately whenever it is necessary to fulfil the stipulations of the treaty between the United States of Colombia and the United States of America, and especially when the railroad and its passengers are in danger.”

“You inform me,” the admiral continues, “that for the future you hope when it may be necessary to land armed troops, it will not be done without the consent of your excellency. There is not the least objection to asking this permission; but I believe it to be my duty to give you notice that in case of alarm the required force of the squadron for an immediate service would probably be detained from arriving in Panama at least two hours, waiting to communicate with the city and receive permission from your excellency. In consideration of the conditions of the treaty, it is believed that armed troops may be landed at any moment; and our late consul and others anxiously desiring it, I have ordered the marine troops to land when there was any danger, to protect the consulate and the naval depot, without permission from the authorities, and I am disposed to do the same again, convinced that such conduct will not only be agreeable to the consul and naval storekeeper, but also to the President of the State, since it will contribute to the promotion of good order.”

The admiral concludes with saying to the President: “Do not think fox a moment, however, that I dispute your legitimate right to wish that permission be asked, by means of an officer, to disembark armed troops in time of necessity, or to do the customary funeral honors at the death of an employé of the United States, or to land a band of unarmed musicians. All this, besides being your lawful duty, it would give me pleasure to carry out, by means of an order to the commanders. I shall also remit to the government of the United States a copy of your communication, and a copy of my answer, to the end that if at any time the force under my command shall be delayed, in case of any emergency, in consequence of my awaiting your consent to the disembarcation, it may not be attributable to me.”

Having now set forth the material facts of the correspondence which took place in September last between the President of Panama and the acting rear-admiral of the United States, concerning the occurrence referred to, it is proper, in the next place, to allude to the representations which that correspondence elicited from his excellency Señor Santiago Perez, then secretary of the interior and foreign relations of the republic of the United States of Colombia.

In his excellency’s communication of the 16th of October last, already referred to, the secretary wrote in effect these words: “The neutrality of the isthmus, or of the sovereignty of New Granada (now the United States of Colombia) over it, guaranteed by the United States of North America, in the thirty-fifth article of the treaty of 1846, are rights pertaining to Colombia—rights the effectiveness of which it belongs to her to demand at the time and under the circumstances which may be convenient to her and equitable. But that guarantee of the neutrality of the isthmus, and its sovereignty to Colombia, does not oblige her to submit to the measures which the United States of North America, or any agent of theirs, may pretend to impose on her in derogation of the national dignity, and not only without the requirement of the local authorities, but in spite of them.”

The secretary proceeded to write further, to the effect that “the local authorities of the State of Panama, or as agents of the national government, respectively, in virtue of their powers, and in the fulfilment of their duties, have to maintain on the isthmus the public security, and the guarantees due its inhabitants and persons who may be transiently there. In the discharge of their duties said authorities would employ the means at their command, and require such assistance as they may find necessary, and to which they may be entitled, provided it can be so given as stipulated.”

The secretary continued his argument in substance in these words:

“Otherwise, assistance would not be assistance, and the employment of a foreign force, although under alleged necessity or convenience, would be rather to have it imposed than asked; an act inadmissible by the legitimate authorities of that territory, and unacceptable according to the most primitive notions of public law.”

The secretary proceeded to write further, as follows:

“Agreeably to the said 35th article, said guarantee is expressly declared to be an especial compensation for favors acquired by the United States of North America in that State. The guarantee is, therefore, not a right pertaining to them, but an obligation, a service contracted by them—a service, it is true, which redounds to their interest, but which cannot take the character of a power or jurisdiction. But by giving to said guarantee the interpretation implied in the pretensions of Rear-Admiral Pearson would be to convert it into an additional favor to the United States of America—a favor which would require on the part of Colombia the abdication of her dignity. The propriety of opportunely appealing to the necessary measures to preserve in all cases security on the isthmus must be decided by the power intrusted with its preservation—a power which represents the national sovereignty, and at the order of which, within the respective limits, agents are to be maintained whose duty it is to lend effective assistance.

“Who has borne the responsibility arising from a want of order or security on the isthmus when disorders have occurred? The use, therefore, of the forces the United States of North America for the preservation of order and the maintenance of the sovereignty of Colombia on the isthmus has to be determined by the Colombian authorities themselves, and not by the chiefs of those forces, whatever may be the apparent inconvenience in any case to the latter, inconveniences to be foreseen and removed by him who is responsible for the disturbances.

“Such is the understanding and the grounds taken by the Colombian government with respect to the part in question of the treaty with the United States of North America. It is sure that such is the understanding and views maintained by the minister resident, whom the undersigned has the honor to address, and to request of him an express opinion on the point. The way of transit across the isthmus shall be opened to the citizens and government of the United States of North America agreeably to said article 35, but neither this nor any other article of the treaty implies the right to disembark troops in that territory without previous notice, and then subject to the conditions of the treaty. Much less does it imply the right to disembark North American forces in order that they may go through exercises on Colombian territory or occupy it in organized bodies or regiments in any operation whatever. The right to disembark and of transit will always be subject to the compact between the two nations, and in eases of resistance, to the judgment and demand of the local authorities, who in this particular act as the agents of the national government.

“In this sense, instructions have been given to the government of the State of Panama, and it is hoped that the minister resident of North America, finding all the foregoing in strict accordance with the existing treaty, and with the well understood interests of both countries, he will be pleased to communicate his orders accordingly to the agents of his nation on the isthmus that they may desist from, and put an end to, whatever pretences they have manifested or that they may manifest to the contrary.”

Having thus recited the various points in this extraordinary correspondence, it only remains for the undersigned to communicate the opinion of his government concerning the same.

The government of the United States is of opinion that the entire controversy is uncalled for by any proceedings which have been taken by Admiral Pearson or by any exigency that has arisen in its relations with the government of Colombia, and, therefore, that the discussion is entirely unnecessary.

The United States of America are sincere friends of the United States of Colombia. The former are not now under any necessity to confess the obligations or to claim the benefits which result from that most interesting relation.

When the circumstances of the death of the late esteemed consul at Panama, Mr. McKee, are considered, it does seem that Admiral Pearson might reasonably have expected, in view of the relations which he sustained to both countries, that the national State authorities at Panama would first communicate with the admiral in regard to that lamented event. It is, however, not to be wondered at, that, impressed by the general and overwhelming sense of the calamity which had befallen both countries, the authorities at Panama omitted to make such a communication. In the absence of such a communication it is admitted that it was the duty of the admiral to address himself to the national and State authorities at Panama, and to express his desire to attend the funeral obsequies of the deceased, giving notice of the form of ceremonial which he had adopted. The government of the United States of America regrets his failure to do so, though it thinks criticisms upon that omission by the federal and State authorities at Panama, under the peculiar circumstances of the case, are uncalled for, and unkind. It is thought that when Admiral Pearson appeared on the wharf attended by a detachment of marines, furnished only with cartridges, and with the ship’s band of music, for the purpose of attending the funeral of Mr. McKee, it was the right of the President of Panama, or other representative of the national government of Colombia, to ask of the admiral an explanation of the character and object of his landing. It is now manifest that such an explanation as would have been entirely satisfactory could and would then have been given. It is exceedingly regretted that it was not asked. No complaint, however, is made against the Colombian authorities for omitting to ask the explanation. On the other hand, it is believed that a review of the whole subject would satisfy the friendly government of Colombia that the President of Panama, on that occasion, took a jealous attitude which would have better become an agent of a party holding relations different and more unfriendly than those which at present exist between the United States of Colombia and the United States of America.

It would have been entirely proper for him to ask of the admiral in a friendly manner an explanation of his proceedings in landing with the marines and musicians on the occasion referred to, and to have limited his demand to that subject alone. Had the President of Panama thus addressed the admiral, there can be no doubt that he would have given an unobjectionable and satisfactory reply.

It is understood that the reason why the subject was brought by his excellency the secretary of the interior and foreign relations of Colombia to the notice of the government of the United States is that in this regard the reply which was given by the admiral to the letter which was addressed him by the President of Panama was unsatisfactory. With a view to remedy this impression, it is cheerfully admitted by the government of the United States that it was the duty of the admiral in the first instance, on that occasion, to ask leave for landing the marines and musicians, and having omitted to perform that duty, it was then incumbent on him to tender a satisfactory explanation to the authority. The President of Panama, however, was not content to ask merely such explanations as have already been supposed; but, on the contrary, he preferred to enter a protest before the admiral against his proceedings, as if, in the President’s judgment, they admitted of no explanation.

The President followed up that protest with a notice to the admiral to the effect that he (the President) expected that in case it shall be necessary to disembark armed naval forces in future, it will not be done without the consent of the authority in Panama which represents the sovereign independence of the United States of Colombia. The reply of the admiral to this gratuitous announcement made by the President of Panama was unsatisfactory and seems to have been construed as disrespectful.

His excellency the secretary of the interior and foreign relations of Colombia presents this reply of Admiral Pearson as a subject of complaint to the government of the United States. It is to be observed as to this part of the transaction, that in the opinion of the government of the undersigned no occasion had arisen and no proceeding had been taken by the admiral which called for the notification thus given to him by the President of Panama. No necessity had arisen or was pretended by the admiral to have arisen, or to be about to arise, for such a landing of armed naval forces as is contemplated by the treaty between the United States and Colombia.

The admiral was not the person to be addressed for explanations of his purposes, or of the purposes of his government, in vague and unfounded anticipation of such a contingency. He was simply a subordinate of his government, which is directly amenable in law and courtesy to make such explanations to the government of the United States of Colombia as may become due to that government

The President of Panama is a local magistrate at that place. He neither pretends to have had nor could have had any authority whatever from the United States of Colombia to demand explanations from the government of the United States of America in such a hypothetical case as he conceived, much less to demand them from an authorized agent of the United States.

The government of the United States of America does not now think itself bound, on a review of the whole correspondence, to give explanations to the government of the United States of Colombia in regard to the form of proceedings which it might suppose proper, in case the necessity contemplated by the treaty for the landing of the land or naval forces of the United States should arise for guaranteeing the sovereignty of Colombia upon the route of the Panama railroad. The treaty and the law of nations must regulate the action of both governments, should such an emergency unhappily arise. It is not to be treated of in advance, because it is a mere vague possibility.

A government cannot justly be expected to give explanations and guarantees in regard to the course it will adopt in hypothetical cases, where it has neither itself done, nor suffered its agents to do, any act which implies a want of fidelity to its treaties and other international obligations.

For a government to give pledges voluntarily that it will not do what is forbidden by those obligations to do, or will not do in an improper manner what it lawfully may do in a proper manner, would be to admit that it had given just grounds for jealousy, or suspicion of its good faith. It is sincerely hoped that the prevalence of peace, law, order, and loyalty on the isthmus may be such as to render the stipulations of the treaty for the guarantee to remain forever a dead letter. The United States of America desire nothing else, nothing better, and nothing more in regard to the States of Colombia than the enjoyment on their part of complete and absolute sovereignty and independence. If those great interests shall ever be assailed by any power at home or abroad, the United States will be ready, co-operating with the government and their ally, to maintain and defend them. Such co-operation will be in accordance not merely with the terms of the treaty, but also in accordance with the respect which is due to the sovereignty of that ally, and to the courtesies which friendship inspires, and which are invariably practiced between enlightened and friendly nations.

The undersigned avails himself of this opportune occasion to renew to his excellency the assurances of his highest consideration.