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We have given in the preceding chapter the history and provisions of the arrangement between the United States and Great Britain of April 28–29, 1817, limiting armaments on the Great Lakes."
By the treaty between the United States and Great Britain, signed at Washington, April 19, 1850, commonly called the Clayton-Bulwer treaty, the contracting parties agreed to guarantee the “ neutrality" of the canal which it was then supposed would soon be built between the Atlantic and Pacific oceans by way of the San Juan River and the lakes of Nicaragua or Managua. It was further agreed (Art. 8) that the contracting parties, desiring not only “ to accomplish a particular object, but also to establish a general principle,” would “ extend their protection, by treaty stipulations, to any other practicable 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.” Such communications were to be open to all states joining in the guarantee. The subject is now regulated by the treaty between the same powers, signed at Washington, November 18, 1901, commonly called the Hay-Pauncefote treaty, the object of which is recited to be to facilitate the construction of a ship canal to connect the Atlantic and Pacific oceans, by whatever'route may be deemed expedient, under the auspices of the Government of the United States, without impairing the “ general principle” of “ neutralization established in Article VIII. of the Clayton-Bulwer treaty." The Clayton-Bulwer treaty is declared to be superseded, and it is agreed that the canal may be constructed “ under the auspices of the Government of the United States, either directly at its own cost, or by gift or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 treaty, the said Government 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." It is then declared (Art. III.) that "the United States adopts, as the basis of the neutralization ” of the canal, certain rules which are then expressly set forth and which are textually given elsewhere in the present work.
By the treaty between the United States and Nicaragua, signed June 21, 1867, Nicaragua grants by Article XIV. “ to the United States, and to their citizens and property, the right of transit between the Atlantic and Pacific oceans through the territory of that Republic, on any route of communication, natural or artificial, whether by land or by water," on the same terms as it shall be enjoyed by Nicaragua and its citizens, “ the Republic of Nicaragua, however, reserving its rights
a Supra, $ 143.
of sovereignty over the same.” By the next article, the United States "agree to extend their protection to all such routes of communication as aforesaid, and to guarantee the neutrality and innocent use of the same. They also agree to employ their influence with other nations to induce them to guarantee such neutrality and protection."
The treaty of territorial limits between Costa Rica and Nicaragua, signed April 15, 1858, contains the following stipulation: “Article IX. On no account whatever, not even in case of war, if it should unfortunately occur between the Republics of Nicaragua and Costa Rica, shall any act of hostility be allowed between them in the port of San Juan del Norte, nor on the river of that name, nor on Lake Nicaragua."
By article 35 of the treaty between the United States and New Granada, now the Republic of Colombia, signed December 12, 1846, New Granada guaranteed to the Government of the United States that “o
the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall be open and free to the Government and citizens of the United States.” On the other hand, the United States guarantees “the perfect neutrality” of the Isthmus and “the rights of sovereignty and property” of New Granada thereover.
As to neutralization of canals, further information may be found in the present work in the chapter on “ Interoceanic communications."
By Article V. of the treaty of July 23, 1881, between the Argentine Republic and Chile, it is declared: “ The Straits of Magellan are neutralized forever, and their free navigation is guaranteed to the flags of all nations. To insure this neutrality and freedom, it is agreed that no fortifications or military defences which might interfere therewith shall be erected."
By a convention between various maritime powers, including the United States on the one part and the Sultan of Morocco on the other, concluded May 31, 1865, the Sultan agreed to construct a light-house at Cape Spartel. With a reservation as to the sovereign rights of the Sultan, it was agreed that the light-house should be managed by representatives of the contracting powers who were to bear the cost of maintaining it. The contracting powers bound themselves “ to respect the neutrality of the light-house, and to continue the payment of the contribution intended to uphold it, even in case (which God forbid) hostilities should break out either between them or between one of them and the Empire of Morocco."
a See the following treaty stipulations : Spain and Nicaragua, July 25, 1850, Art. XIII.; Spain and Costa Rica, May 10, 1850, Art. XIII. ; France and Nicaragua, April 11, 1859, Arts. XXVII.-XXXIII. ; Italy and Nicaragua, March 6, 1868 ; Great Britain and Nicaragua, Feb. 11, 1860. The last mentioned treaty expired June 11, 1888, on notice given in conformity with its terms.
48 Brit. and For. State Papers, 1051.
By the Geneva Convention of 1864, commonly called the “ Red Cross Convention," for the amelioration of the condition of the wounded in the field, surgeons, the wounded, and hospitals and their attendants are “recognized as neutral.” The supplementary convention of 1868, which was intended to apply similar stipulations to naval warfare, has not been ratified, but its provisions were observed as a modus vivendi between the United States and Spain in 1898.
Proposals have been made for the neutralization of submarine telegraph cables, but the draft convention to that effect, which was prepared at a conference held in Paris in 1882, upon the invitation of the French Government, has not yet been adopted by the powers. The convention signed at Paris March 14, 1884, provides for the protection of submarine cables outside territorial waters, but its operation is by Article XV. limited to time of peace, by an express reservation in favor of the rights of belligerents.a
2. GOVERNMENTAL Acts.
Governor Collot, of the French island of Guadeloupe, having arrived in the United States, as a prisoner of war to the British on parole, on his way to France, was arrested and obliged to give bail in a civil action based on his seizure and condemnation of a vessel while acting as governor of the island. He declined to plead to the action, but appealed to the French minister, who, addressing in turn the Government of the United States, asked that the suit, which was pending in a Pennsylvania court, be stopped, on the ground that the wrong complained of was a public act, performed by the governor in the exercise of his official powers. This request was referred to the Attorney-General of the United States, who advised that the defendant was not personally privileged from arrest, and that his defense should be placed before the court. As to the merits of the defense, the Attorney-General said: “I am inclined to think, if the seizure of the vessel is admitted to have been an official act, done by'the defendant by virtue, or under color, of the powers vested in him as governor, that it will of itself be a sufficient answer to the plaintiff's action; that the defendant ought not to answer in our courts for any mere irregularity in the exercise of his powers; and that the extent of his authority can, with propriety or convenience, be determined only by the constituted authorities of his own nation."
a Holland, Studies in Int. Law, 273; and an article by the same author in the Journal du Droit International Privé (1898), vol. 25, p. 618.
Bradford, At. Gen., June 16, 1794, 1 Op. 45. The plaintiff eventually dis
continued his action. (Waters v. Collot, 2 Dallas, 247.) In this relation we may note the following statement: On the subject of
General ('ollot, ... I have to inform you that the friend of the plaintiff in the suit has assured me that he will immediately withdraw it, and the General will be discharged from his bail. I can not, however, dismiss this subject without observing, that if the General had shown to the court that his act which occasioned the injury complained of had been within his lawful powers as governor of Guadeloupe, the court would have discharged him long ago, as they discharged Mr. Peroud, the ordonnateur at Cape François. But the General refused, as I am informed, to say anything more than that he was, at the time, the governor of Guadeloupe, as though a governor could commit no unlawful act for which he would be personally responsible.” (Mr. Pickering, Sec. of State, to Mr. Letombe, French consul-general, May 29, 1797, 10 MS. Dom. Let. 51.)
“It is as well settled in the United States as in Great Britain, that a person acting under a commission from the sovereign of a foreign nation is not amenable for what he does in pursuance of his commission, to any judiciary tribunal in the United States."
Lee, At. Gen., Dec. 29, 1797, 1 Op. 81, citing Bradford, At. Gen., June 16,
1794, 1 Op. 45. The opinion of Attorney-General Lee related to two suits pending against
Henry Sinclair, evidently of a civil nature.
In November, 1810, Alexander McLeod was arrested by the authorities of the State of New York and held for trial on a charge of murder committed at the destruction of the steamer Caroline, December 29, 1837, within the territorial jurisdiction of that State. On the 13th December, 1810, Mr. Fox, the British minister at Washington, on his own responsibility asked for his immediate release, on the ground that the destruction of the Caroline was “a public act of persons in Her Majesty's service, obeying the order of their superior authorities; " that it could, therefore, “ only be the subject of discussion between the two national Governments," and could " not justly be made the ground of legal proceedings in the United States against the persons concerned.”
Mr. Forsyth, Secretary of State, replied on the 28th of December, with the declaration that no warrant for the interposition called for could be found in the powers with which the Federal Executive was invested, but at the same time denying that the demand was well founded. On the 12th of March, 1811, Mr. Fox, in behalf of his Government, presented a formal demand for McLeod's immediate release, on the ground which he had previously stated. Mr. Webster, who had then become Secretary of State, made answer on the 24th of April, and, while admitting the grounds of the demand, declared that the Federal Government was unable then to comply with it. In May McLeod was taken down to the city of New York, and was there brought before a justice of the supreme court of the State on a writ of habeas corpus. After a full argument, that tribunal, in July, refused to discharge him; and in the ensuing October, ten months after the first demand and seven months after the second, he was tried at Utica, and acquitted on proof of an alibi. This case led to the adoption by Congress, in August, 1812, of an act to provide for the removal of cases involving international relations from the State to the Federal courts.
For the case of the Caroline, see infra, $ 217. For correspondence in
relation to the case of McLeod, see message of Dec. 28, 1840, H. Ex.
Jan. 23, 1843, S. Ex. Dọc. 99, 27 Coilg. 3 sess.
Pap. 1126, and 30 id. 193.
are reported in People 1. McLeod, 25 Wend. 183; and they are re-
Talmadge's 'Review.'” (Webster's Works, VI. 266, note.)
March 12. 1811, Webster's Works, VI. 247; Mr. Webster, Sec. of
State, to Mr. Fox, Brit. min., April 24, 1811, id. 250.
H. Ex. Doc. 33, 26 Cong. 2 sess.
" That an individual, forming part of a public force, and acting under the authority of his Government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute. This has no connection whatever with the question, whether, in this case, the attack on the · Caroline' was, as the British Government think it, a justifiable employment of force for the purpose of defending the British territory from unprovoked attack, or whether it was a most unjustifiable invasion, in time of peace, of the territory of the United States, as this Government has regarded it. The two questions are essentially distinct and different; and, while acknowledging that an individual may claim immunity from the consequences of acts done by him, by showing that he acted under national authority, this Government is not to be understood as changing the opinions which it has heretofore expressed in regard to the real nature of the transaction which resulted in the destruction of the “ Caroline.' That subject it