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works necessary to the construction, maintenance, and operation of the canal shall be deemed part of it for the purposes of this treaty, and “in time of war as in time of peace" shall enjoy complete immunity from attack or injury by belligerents and from acts calculated to impair their usefulness.
It was considered that such specific provision was in the general interest of commerce and of civilization, and that all nations would regard such a work as sacred under all circumstances.
It was hoped that the changes above enumerated from the former treaty would practically reconcile the conflicting contentions of the two Governments and would lead to the much-desired result of an entire concurrence of views between them.
With the exception of these changes care was taken in the draft of the new treaty to preserve the exact language, which had passed both the Senate and the British Government without objection, and, as is believed, without criticism.
The hope that the changes thus made had effectually met the British objections to the former treaty as amended by the Senate was almost realized.
The proposed draft of the new treaty was transmitted to Lord Lansdowne, and after mature deliberation he proposed on the part of His Majesty's Government only three substantial amendments.
He recognized the weighty importance of the change by which Great Britain was relieved of all responsibility for enforcing the neutrality and maintaining the security of the canal, and that all this burden was solely assumed by the United States. He also appreciated the importance of the other proposed changes in the direction of harmony:
Under this modified aspect of the relations of the two nations to the canal, he was not indisposed to consent to the abrogation of the Clayton-Bulwer treaty if the general principle” of neutrality, which was reaffirmed in the preamble of the new treaty as well as of the former one, should be preserved and secured against any change of sovereignty or other change of circumstances in the territory through which the canal is intended to pass, and that the rules adopted as the basis of neutralization should govern, as far as possible, all interoceanic communication across the Isthmus. He referred in this connection to Articles I and VIII of the Clayton-Bulwer treaty.
He therefore proposed, by way of amendment, the insertion of an additional article, on the acceptance of which His Majesty's Government would be inclined to withdraw its objection to the formal abrogation of the Clayton-Bulwer treaty.
The amendment thus proposed by him was in the following lan
In yiew of the permanent character of this treaty, whereby the general principle established by Article VIII of the Clayton-Bulwer treaty is reaffirmed, the high contracting parties hereby declare that the rules laid down in the last preceding article shall
, so far as they may be applicable, govern all interoceanic communication across the Isthmus which connects North and South America, and that no change of territorial sovereignty or other change of circumstances shall affect such general principle or the obligations of the high contracting parties under this treaty.
This proposed article was regarded by the President as too farreaching for the purpose in view, and as converting the vague and indefinite provisions of the eighth article of the Clayton-Bulwer
treaty, which contemplated only future treaty stipulations when any new route should prove to be practicable, into a very definite and certain present treaty, fastening the crystallized rules of neutrality adopted now for this canal upon every other interoceanic communication across the Isthmus, and as perpetuating in a more definite and extended form, by a sort of reenactment of the eighth article, the embarrassing effects of the Clayton-Bulwer treaty, of which the United States hoped to be relieved altogether.
He believed that now that a canal is about to be built at the sole cost of the United States for the equal benefit of all nations, it was sufficient for the present treaty to provide for that one canal, and that it was hardly within the range of possibility that the United States would ever build more than one canal between the two oceans.
The President was, however, not only willing, but desirous, that the “general principle” of neutralization referred to in the preamble of this treaty should be applicable to this canal now intended to be built, notwithstanding any change of sovereignty or of international relations of the territory through which it should pass. This “general principle” of neutralization had always in fact been insisted upon by the United States, and he recognized the entire justice of the request of Great Britain that if she should now surrender the material interest which had been secured to her by the first article of the Clayton-Bulwer treaty, which might result in the indefinite future should the territory traversed by the canal undergo a change of sovereignty, this "general principle” should not be thereby affected or impaired.
These views were communicated to His Majesty's Government, and as a substitute for the article proposed by Lord Lansdowne the following was proposed on the part of the United States:
It is agreed that no change of territorial sovereignty or of the international relutions of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligations of the high contracting parties under the present treaty.
Upon a full exchange of views, this article proposed by the United States was accepted by Great Britain and becomes Article IV of the treaty now submitted. It is thought to do entire justice to the reasonable demands of Great Britain in preserving the general principle of neutralization and at the same time to relieve the United States of the vague, indefinite, and embarrassing obligations imposed by the eighth article of the Clayton-Bulwer treaty.
During the discussions upon this article it was suggested that although no particular route was mentioned in the proposed treaty as the route to be traversed by the canal, yet as the canal had been so commonly mentioned as the “Nicaragua Canal," and the intended treaty as the “Nicaragua Canal treaty," it might possibly be claimed that the treaty did not apply to a canal by the Panama route, or by any other possible route. But it had always been intended by the President that the treaty should apply to the canal which should be first constructed, by whichever or whatever route, and to remove the apprehension referred to and to exclude all possible doubt in the matter, it was agreed that the preamble should be amended by inserting in the preamble after the word “oceans” the words “by whatever route may be considered expedient.”
His Vajesty's Government at first strenuously objected to the absence from the treaty of any provision for other powers coming in, so as to be bound by its terms. It protested against being bound by what it regarded as stringent rules of neutrality which should not be equally binding upon other powers.
Lord Lansdowne accordingly proposed the following amendment, viz:
To insert in Rule 1 of Article III, aiter the word “nation,” the words "which shall agree to observe these rules," and in the following line, after the word “nation,” the words * 30 agreeing," so as to make the clauze read:
"1. The canal shall be free and open to the vessels of commerce and of war of all nations which shall agree to observe these rules, on terms oi entire equality, so that there shall be no discrimination against any nation so agreeing," ete.
The President, however, could not consent to this amendment, because he apprehended that it might be construed as making the other powers parties to the contract and as giving them contract rights in the canal, and that it would thus practically restore to the treaty the substance of the provision which the Senate had struck out as Article III of the former treaty. He believed also that there was a strong national feeling against giving to the other powers anything in the nature of a contract right in an affair so peculiarly American as the canal; that no other powers had now any right in the premises or anything to give up or part with as consideration for acquiring such a contract right; that they are to rely on the good faith of the United States in its declaration to Great Britain in this treaty; and that it adopts the rules and principles of neutralization there set forth. These rules are adopted in the treaty with Great Britain as a consideration for getting rid of the Clayton-Bulwer treaty, and the only way in which other nations are bound by them is that they must comply with them if they would use the canal.
It was also apparent that the proposed amendment is accepted would make Rule I more objectionable than the third article of the former treaty, which was stricken out by the Senate's amendment, for that only invited other powers to come in and become parties to the contract after ratification, whereas the proposed propision would rather compel other powers to come in and become parties to the contract in the first instance as a condition precedent to the use of the canal by them.
l'pon due consideration of these suggestions, and at the same time to put all the powers upon the same footing, viz, that they could use the canal only by complying with the rules of neutrality adopted and prescribed-an amendment to Lord Lansdowne's amendment was proposed and agreed upon, viz:
To strike out from his amendment the words, "which shall agree to observe” and substitute therefor the word observing," and in the next line to strike out the words "so agreeing," and to insert before the word “nation" the word "such."
This made the clause as finally agreed upon and found in the treaty as now submitted for the consideration of the Senate:
The canal shall be free and open to the vessels of commerce and of war of all natins observing these rules on terms of entire equality, so that there shall be no discrimination against any such nation, etc.
Thus the whole idea of contract right in the other powers is eliminated, and the vessels of ans nation which shall refuse or fail to
S. Doc. 456, 63-2
observe the rules adopted and prescribed may be deprived of the use of the canal.
One other amendment proposed by Lord Lansdowne was regarded by the President as so entirely reasonable that it was agreed to without discussion. This was the insertion at the end of clause 1 of Article III the words: “Such conditions and charges of traffic shall be just and equitable," and the word “convention,” wherever it occurs, has been changed to “treaty.”
It is believed that this memorandum will put the Senate Committee on Foreign Relations in full possession of the history of all changes in the treaty since the action of the Senate on the former amendment.
Lord Pauncefote to the Marquis of Lansdowne.
WASHINGTON, December 24, 1900.
(Received Jan. 7, 1901.) MY LORD: I have the honor to transmit to your lordship a copy of a note which I have received from the United States Secretary of State, formally announcing to me, for the information of Her Majesty's Government, the ratification of the Nicaragua Canal treaty by the Senate on the 20th instant, with three amendments.
Mr. Hay, after giving the text of those amendments, states that he has instructed the United States ambassador in London to express to your lordship the hope of his Government that the amendments will be found acceptable to that of Her Majesty. I have, etc.,
[Inclosure 1 in No. 1.]
Mr. Hay to Lord Pauncefote.
DEPARTMENT OF STATE,
Washington, December 22, 1900. EXCELLENCY: I have the honor to inform you that the Senate by its resolution of the 20th December last, has given its advice and consent to the ratification of the convention, signed at Washington on the 5th of February last by the respective plenipotentiaries of the United States and Great Britain, to facilitate the construction of a ship canal to connect the Atlantic and Pacific oceans and to remove any objection which might arise out of the convention commonly called the Clayton-Bulwer treaty, with the following amendments:
1. After the words “Clayton-Bulwer convention" and before the word "adopt” in the preamble of Article II, the words "which convention is hereby superseded” are inserted.
2. A new paragraph is added to the end of section 5 of Article II in the following language:
It is agreed, however, that none of the immediately foregoing conditions and stipulations in sections numbered 1, 2, 3, 4, and 5 of this article shall apply to measures which the United States may find it necessary to take for securing by its own forces the defence of the United States and the maintenance of public order.
3. Article III reading: The high contracting parties will, immediately upon the exchange of the ratifications of this convention, bring it to the notice of the other powers, and invite them to adhere to it, is stricken out.
1. Article IV is made Article III.
I inclose a printed copy of the convention as signed,' and a copy of it showing its reading as amended by the Senate.
I have instructed Mr. Choate to express to the Marquis of Lansdowne this Government's hope that the amendments will be found acceptable to that of Her Majesty.
The supplementary convention which I signed with rou on the 5th Jay last, prolonging the time within which the ratifications of the convention of the 5th February last shall be exchanged, for a period of seven months from the 5th August last, has been consented to by the Senate without amendment. I have, etc.
[Inclosure in No.1.)
Convention of February 5, 1900, as amended by the Senate. The United States of America, and Her Majesty, the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, being desirous to facilitate the construction of a ship canal to connect the Atlantic and Pacific Oceans, and to that end to remove any objection which may arise out of the convention of the 19th April, 1850, commonly called the Clayton-Bulwer treaty, to the construction of such canal under the auspices of the Government of the United States, without impairing the “general principle” of neutralization established in Article VIII of that convention, have for that purpose appointed as their plenipotentiaries:
The President of the United States, John Hay, Secretary of State of the United States of America;
And Her Majesty the Queen of Great Britain and Ireland, Empress of India, the Right Honourable Lord Pauncefote, G.C.B., G.C.I.G., Her Majesty's ambassador extraordinary and plenipotentiary to the l'nited States;
Who, having communicated to each other their full powers, which were found to be in due and proper form, hare agreed upon the following articles:
It is agreed that the canal may be constructed under the auspices of the Government of the United States, either directly at its own cost, or by gift or loan of money to individuals or corporations or through subscription to or purchase of stock or shares, and that, .subject to the provisions of the present convention, the said Gora ernment shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.
I see United States No. 1 1900.)