THE NICARAGUA CANAL QUESTION AND THE CLAYTON-BULWER TREATY

THE complications that have lately arisen in the United States policy with regard to the control of the proposed interoceanic canal across the American isthmus are almost entirely due to the introduction of a Bill into the House of Representatives on the 7th of December, 1899, commonly known as the 'Hepburn' Bill, providing for the construction of an interoceanic canal through Nicaraguan territory under the absolute and exclusive control of the United States.

The complications' may be briefly stated as follows. On the introduction of the above-mentioned Bill into Congress, the Executive became alarmed lest, if the Bill should pass both Houses, its provisions would involve the United States in a serious dispute with Great Britain. The Secretary of State, Mr. Hay, was accordingly directed to open negotiations with Her Majesty's Government, with a view to obtaining their consent to the modification of the ClaytonBulwer treaty of 1850 by means of a Convention, the purpose of which should be to remove any objection which might arise out of that treaty to the construction of a canal under American control. Her Majesty's Government agreed to make this concession on two conditions: first, that the canal should never be closed against any nation, but should be open to all nations on equal terms; and secondly, that no fortifications should be erected on the canal by the United States. Convention was accordingly drawn up and signed on the 5th of February, 1900, by Lord Pauncefote and Mr. Hay containing the requisite modifications, and was referred on the same day by the President to the Senate for its approval. The Senate thus have before them at the present moment a Convention modifying the Clayton-Bulwer treaty, and thereby acknowledging its existence, and a Bill which directly disregards and defies it.

Before discussing the Hepburn Bill and the statements brought up by its supporters to prove that the United States is no longer bound by the Clayton-Bulwer treaty, it may be as well to give a

brief account of the opposition to the Hay-Pauncefote Convention.

Besides party and interested opposition, the Convention has been mainly opposed owing to the clause in Article 2 prohibiting the erection of fortifications commanding the canal or the waters adjacent.' To this article the Senate have recently accepted an amendment proposed by Mr. Davis, Chairman of the Foreign Relations Committee, which runs as follows:

'It is agreed, however, that none of the immediately foregoing conditions and stipulations shall apply to the 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.'

This amendment, although more or less innocent-looking at first sight, if it is agreed to by Great Britain, is broad enough to give to the United States Government the right to erect any fortifications they wish, and to consider the canal as one of the lines of national defence, which it was the purpose of the Convention to prohibit. The amendment was based by Mr. Davis on the 10th Article of the Treaty of Constantinople, signed on the 29th of October, 1888, whereby the European Powers agreed that nothing in the treaty neutralising the Suez Canal 'should interfere with the measures which His Majesty the Sultan might find it necessary to take for securing by his own forces the defence of Egypt and the maintenance of public order,' and further that it is likewise understood that the provision of the four articles aforesaid shall in no case occasion any obstacle to the measures which the Imperial Ottoman Government may think it necessary to take in order to insure by its own forces the defence of its other possessions situated on the eastern coast of the Red Sea.'

It is not easy to see what analogy there is between the two cases the territory through which the Suez Canal was constructed was a tributary province of Turkey, and so, as was only just, she was given the right to erect defences sufficient for the maintenance of order and the protection of her own territory; whereas the territory on which the United States wish to erect fortifications in no way belongs to the United States, and is at some distance from its frontier. Mr. Davis's argument therefore seems to be rather illogical, that because the right of erecting sufficient fortifications is given to a country through whose territory a canal runs, for the proper defence of that country, therefore the United States ought to be allowed to erect fortifications on a canal running through what in time of war would be a neutral territory, for the defence of the United States.

The question may perhaps be raised, Why should we not give the United States the right they ask for to control the canal, since

they are providing the money to build it? On the other hand, what right have we to grant exclusive privileges to the United States, enjoyed by no other nation, and to the detriment of any nation with whom the United States may be at war? No nation would look with favour on such a clause, which, even if it did not lead to the construction of another canal, would be sure to involve the United States in serious disputes; whereas to a treaty of perfect neutralisation, as proposed in the present Convention, all nations would be likely to agree, since the rights of all would be perfect. Although there is such a strong feeling throughout the country that the United States ought to fortify the canal for the purpose of national defence, yet at the same time it is almost unanimously agreed that the canal must be neutral and open to all nations on equal terms; two ideas which would seem to be quite incongruous.

A further argument against the erection of fortifications, and one which has been brought forward by several prominent men, among others the Admiral of the United States Navy, Admiral Dewey, is that the erection of fortifications for the protection of the canal would be only to invite hostilities to its locality.

Another question which has given rise to a certain amount of discussion is what form the neutralisation of the canal should take with regard to ships of war. Two plans have been proposed: first, to permit the passage of all ships of war of all nations without discrimination, and second, to exclude the battleships of belligerents. The former plan has met with the most general approval as being most likely to insure complete neutrality, and has already been found to work very well in the case of the Suez Canal. The only objection that could be raised against it is that the power of the United States fleet would be doubled thereby; but then the same argument would apply to our own fleet also. The second plan has a very strong objection to it. Any attempt to exclude men of war of belligerents would involve the exercise of such wide discretion, and of so large a measure of arbitrary power, that it would be almost certain to lead to disputes. and serious complications between the belligerents and the party exercising that power.

The Hepburn Bill, which has been the chief cause of the present situation, provides for the construction of a canal connecting the waters of the Atlantic and Pacific Oceans.

Section 1 authorises the President of the United States to acquire from the States of Costa Rica and Nicaragua for, and in behalf of, the United States, control of such portion of territory now belonging to Costa Rica and Nicaragua as may be desirable and necessary, on which to excavate, construct, and protect a canal of such depth and capacity as will be sufficient for the movements of ships of the greatest tonnage and draft now in use, from a point near Greytown, on the Caribbean Sea, viâ Lake Nicaragua, to Breto, on the Pacific Ocean;

and such sum as may be necessary to secure such control is hereby appropriated out of the money in the Treasury not otherwise appropriated.'

Section 2 provides that when the President has secured full control over the territory in section 1 referred to, he shall direct the Secretary of War to excavate and construct a canal and waterway from a point on the shore of the Caribbean Sea. . . to a point near Breto, on the Pacific Ocean. . . and the Secretary of War shall also construct such safe and commodious harbours at the termini of the said canal, and such provisions for defence, as may be necessary for the safety and protection of the said canal and harbours.'

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In the Clayton-Bulwer treaty Great Britain and the United States declared that neither the one nor the other would ever obtain or maintain for itself any exclusive control over the said ship canal,' and 'that neither would ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonise, or assume, or exercise any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America,' and further that neither Great Britain nor the United States would take advantage of any intimacy or use any alliance, connection, or influence that either may possess with any State or Government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one, any right or advantage in regard to commerce or navigation through the said canal which shall not be offered on the said terms to the citizens and subjects of the other.'

The last Article, 8 (which is given in full because it establishes a 'General Principle' which cannot be deemed obsolete and liable to abrogation on that or any other ground), declares that 'The Governments of Great Britain and the United States having not only desired, in entering into this Convention, to accomplish a particular object, but also to establish a general principle, they hereby agree to extend their protection, by treaty stipulations, to any other practical communications, whether by canal or railway, across the isthmus which connects North and South America, and especially to the interoceanic communications, should the same prove to be practicable, whether by canal or railway, which are now proposed to be established by the way of Tehuantepec or Panama. In granting, however, their joint protection to any such canals or railways as are by this article specified, it is always understood by Great Britain and the United States that the parties constructing or owning the same shall impose no other charges or conditions of traffic thereupon than the aforesaid Governments shall approve of as just and equitable; and that the same canals or railways being open to the citizens and subjects of Great Britain and the United States on equal terms, shall also be open on like terms to the citizens and subjects of every other

State which is willing to grant thereto such protection as Great Britain and the United States engage to afford.'

The provisions of the Hepburn Bill are therefore in direct violation of all the above stipulations of the Clayton-Bulwer treaty. The supporters of the Bill, however, assert that the treaty is no longer binding by reason of the conduct of Great Britain,' and that therefore the United States are at liberty to construct a canal and to control it in whatever way they may think best. Mr. Shackleford, a member of the House Committee on Interstate and Foreign Commerce, in a minority report on the Bill writes:

'The Clayton-Bulwer treaty, as is clearly shown by Mr. Hepburn, long ago ceased to have any binding force by reason of the conduct of Great Britain.'

Such a statement, made by two members of the Committee on Interstate and Foreign Commerce, one would naturally suppose would be grounded on facts, and have some very strong case behind it. Far from that being the case, I think it will be seen from the following brief review of the history of the treaty that Great Britain has never wilfully violated its terms, while the United States on the contrary deliberately did so in 1880 by establishing two coaling stations on the Central American isthmus.

In 1849 Great Britain held a protectorate over the Mosquito Indians, including the mouth of the San Juan river (the proposed eastern outlet of the Nicaraguan Canal), and also had a settlement on Belize, commonly known as British Honduras, and claimed the Bay Islands as dependencies of that settlement.

A short time previous to this date Mr. Hise, United States Chargé d'Affaires to the Central American Republics, had, without authority from his Government, negotiated a treaty with Nicaragua whereby the United States agreed to recognise the paramount sovereignty of that State from sea to sea. When this act of Mr. Hise became known to the United States Executive it was at once disavowed; but its terms became publicly known, and being in accordance with the popular cry at that time, the President was placed in an awkward dilemma; for if he refused to allow the treaty to be ratified on the ground that it was a direct infringement of the rights of Great Britain, he was afraid of being accused of giving way in the face of British aggression, and yet at the same time he dared not risk an open conflict with Great Britain.

Mr. Clayton, the United States Secretary of State, thinking the best way out of the difficulty was to lay the whole matter before Her Majesty's Government, instructed Mr. Lawrence, the United States Minister in London, to ask Lord Palmerston whether the British Government intended to occupy or colonise Nicaragua, Costa Rica, the Mosquito Coast, so-called, or any part of Central America,' and also whether the British Government would unite with the United