and complete a manner as a fresh-water lake. The Caspian and the Black Sea naturally belong to this class. Upon the former sea Russia had, by the Treaty with Persia, the exclusive right of navigating with ships of war; and by the Treaty of the Dardanelles, the Black Sea is practically confined to Russian and Turkish ships of war. [*217] ·•(~) CCV. There is another class of inclosed seas to which the same rules of law are applicable; seas which are land-locked, though not entirely surrounded by land. Of these, that great inlet which washes the coasts of Denmark, Sweden, Russia, and Prussia, the Ostsee, as the Germans call it, the Baltic Sea, according to its usual appellation, is the principal.(s) *CHAPTER IX. PECULIAR CASE OF THE ISTHMUS OF CENTRAL AMERICA. [218] CCVI. The most remarkable, and perhaps the most important, instance of the establishment of the jus transitûs innoxii is afforded by the recent convention between Great Britain and the United States respecting the Isthmus of Central America, which connects the great highways of the world, the Atlantic and Pacific Oceans. The treaty concerns the formation of a ship-canal, or of a railway over this strip of land. This Treaty, both on account of its immediate object, and the principle which it expressly recognizes and recites, is of such vast importance, both to the present and future interests of mankind, that it is necessary to state the provisions in extenso. The preamble set forth that, "Her Britannic Majesty and the United States of America being desirous of consolidating the relations of amity which so happily subsist between them, by setting forth and fixing in a convention their views and intentions with reference to any means of communication by ship-canal, which may be constructed between the Atlantic and Pacific Oceans by way of the river St. Juan de Nicaragua, (?) 2 De Martens et De Cussy, 399, Art. 5. Heffters, 140. Wheaton's Hist. 158, 567. (s) Heffters, 143, n. 2. 4 De Martens et De C. t. i. Index Explicatif. "Mers fermées. Parmi les mers fermées on compte généralement : Le grand et le petit Belt. Le Sund (le seul détroit dont le passage soit soumis, pour les navires de la marine commerciale, à un péage: Voir Sund.) Le Canal de Bristol. Le Canal de Saint George. Le Détroit d'Ecosse. Le Détroit de Messine. Les Dardenelles. La Mer de Marmora. Le Bosphore, etc. etc. En 1780, le Danemarck déclara la mer Baltique une mer fermée, a l'abri des courses des armateurs et des vaisseaux armés." and either or both of the lakes of Nicaragua or Managua, to any port or place on the Pacific Ocean," &c. The Articles were as follows:-" Art. 1. The Governments of Great Britain and the United States hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship-canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, * [*219] or occupy, or fortify, or colonise, or assume or exercise any do minion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America ;(a) nor will either make use of any protection which either affords or may afford, or any alliance which either has or may have, to or with any State or people, for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying, or colonising Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America, or of assuming or exercising dominion over the same. Nor will Great Britain or the United States 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 subjects or citizens of the one, any rights or advantages, in regard to commerce or navigation through the said canal, which shall not be offered, on the same terms, to the subjects or citizens of the other. "Art. 2. Vessels of Great Britain or the United States traversing the said canal shall, in case of war between the contracting parties, be exempted from blockade, detention, or capture by either of the belligerents; and this provision shall extend to such a distance from the two ends of the said canal as it may hereafter be found expedient to establish. "Art. 3. In order to secure the construction of the said canal, the contracting parties engage that if any such canal shall be undertaken upon fair and equitable terms by any parties having the authority of the local government or governments through whose territorry the same may pass, then the persons employed in making the said canal, and their property used or to be used for that object, shall be protected, from the commencement of the said canal to its completion, by the Governments of Great Britain and the United States, from unjust detention, confiscation, seizure, or any violence whatsoever. *Art. 4. The contracting parties will use whatever influence [*220] they respectively exercise with any State, States, or Governments possessing, or claiming to possess, any jurisdiction or right over the territory which the said canal shall traverse, or which shall be near the waters applicable thereto, in order to induce such States or Governments to facilitate the construction of the said canal by every means in their power; and furthermore, Great Britain and the United States agree to use their good offices, wherever or however it may be most expedient, in order to procure the establishment of two free ports, one at each end of the said canal. “Art. 5. The contracting parties further engage, that when the said (a) Vide infra. canal shall have been completed, they will protect it from interruption, seizure, or unjust confiscation, and that they will guarantee the neutrality thereof, so that the said canal may for ever be open and free, and the capital invested therein secure. Nevertheless, the Governments of Great Britain and the United States, in according their protection to the construction of the said canal, and guaranteeing its neutrality and security when completed, always understand that this protection and guarantee are granted conditionally, and may be withdrawn by both Governments, or either Government, if both Governments or either Government should deem that the persons or company undertaking or managing the same adopt or establish such regulations concerning the traffic thereupon, as are contrary to the spirit and intention of this Convention, either by making unfair discriminations in favour of the commerce of one of the contracting parties over the commerce of the other, or by imposing oppressive exactions or unreasonable tolls upon passengers, vessels, goods, wares, merchandise, or other articles. Neither party, however, shall withdraw the aforesaid protection and guarantee, without first giving six months' notice to the other. "Art. 6. The contracting parties in this Convention engage to invite every State with which both or either have *friendly intercourse, [*221] to enter into stipulations with them similar to those which they have entered into with each other, to the end that all other States may share in the honour and advantage of having contributed to a work of such general interest and importance as the canal herein contemplated; and the contracting parties likewise agree, that each shall enter into treaty stipulations with such of the Central American States as they may deem advisable, for the purpose of more effectually carrying out the great design of this Convention, namely, that of constructing and maintaining the said canal as a ship communication between the two oceans for the benefit of mankind, on equal terms to all, and of protecting the same; and they also agree, that the good offices of either shall be employed, when requested by the other, in aiding and assisting the negotiation of such treaty stipulations; and should any differences arise as to right or property over the territory through which the said canal shall pass, between the States or Governments of Central America, and such differences should in any way impede or obstruct the execution of the said canal, the Governments of Great Britain and the United States will use their good offices to settle such differences, in the manner best suited to promote the interests of the said canal, and to strengthen the bonds of friendship and alliance which exist between the contracting parties. “Art. 7. It being desirable that no time should be unnecessarily lost in commencing and constructing the said canal, the Governments of Great Britain and the United States determine to give their support and encouragement to such persons or company as may first offer to commence the same, with the necessary capital, the consent of the local authorities, and on such principles as accord with the spirit and intention of this Convention: and if any persons or company should already have, with any State through which the proposed ship-canal may pass, a contract for the construction of such a canal as that specified in this Convention, AUGUST, 1854.-13 to the stipulations of which contract neither of the contracting [*222] *parties in this Convention have any just cause to object, and the said persons or company shall, moreover, have made preparations and expended time, money, and trouble on the faith of such contract, it is hereby agreed that such persons or company shall have a priority of claim over every other person, persons, or company, to the protection of the Governments of Great Britain and the United States, and be allowed a year, from the date of the exchange of the ratifications of this Convention, for concluding their arrangements, and presenting evidence of sufficient capital subscribed to accomplish the contemplated undertaking; it being understood, that if, at the expiration of the aforesaid period, such persons or company be not able to commence and carry out the proposed enterprise, then the Governments of Great Britain and the United States shall be free to afford their protection to any other persons or company that shall be prepared to commence and proceed with the construction of the canal in question. "Art. 8. 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 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. 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 subjects and citizens of Great Britain and the United States on equal terms, shall also be open on like terms to the [*223] *subjects, and citizens of every other State which is willing to grant thereto such protection as Great Britain and the United States. engage to afford. "Art. 9. The ratifications of this Convention shall be exchanged at Washington within six months from this day, or sooner if possible. "In faith whereof, we, the respective Plenipotentiaries, have signed this Convention, and have hereunto affixed our Seals. "Done at Washington, the nineteenth day of April, anno Domini One thousand eight hundred and fifty. (Signed) HENRY LYTTON BULWER, CCVII. Before the ratifications were exchanged, it was explained by the British to the American Plenipotentiary, that the words "or any part of Central America" were not to apply to the British Settlements in Honduras, or its dependencies. This explanation was fully adopted (6) Annual Register, vol. xcii. (1850) pp. 387–390. by the American Plenipotentiary, and the ratifications were exchanged. The Treaty was subsequently submitted by the President of the United States to the Senate, (c) and was approved of, after discussion, by that deliberative assembly. It was, however, contended by certain persons averse to the conditions of the Treaty, that the Senate did not understand that the Treaty was to be construed with reference to the American Plenipotentiary's consent, which had been expressed in the reply to the British Plenipotentiary's explanation with respect to the Honduras, and consequently that the Senate had in reality not assented to the Treaty so qualified. Though there is no ground for this supposition, the *objection evinces how much a knowledge of the department of Government [*224] in which the power of making and ratifying Treaties is vested by the Constitution of each State, is necessary for the security of the foreign relations of all States. CCVIII. The reason of the thing would indeed seem to have excluded the Honduras, as the terms were employed in the Treaty, even without the subsequent express limitation, from the category of "Central America," though geographically and literally within the scope of the expressions. It is true that Great Britain had originally only certain limited jura in re with respect to the Honduras, such as the rights of cutting mahogany and logwood conceded to her by Treaties with Spain, the right of sovereignty being reserved to the crown of the latter country; yet since Spain has ceased to exercise any sovereignty, either at Honduras or in the circumjacent territory, and the British jurisdiction is exercised there under a Commission of the Crown which has been recognised by the United States, inasmuch as their Consul is received at Belize under the exequatur of the British Crown;-since the occurrence of these events, Honduras must be and is considered as both de facto and de jure a British settlement; and the terms in the Treaty would therefore appear, by the ordinary and admitted rules of construction, (d) applied with reference to the subject-matter and context of the Treaty, not to include the British possession of Honduras.(e) CCIX. The Right of Self-Preservation, by that defence which prevents, as well as that which repels, attack, is the next International Right which presents itself for discussion, and which, it will be seen, Vide supra, p. 140. (d) Vide post, Chapter on TREATIES. "Convention entre Sa Majesté le Roi de la Grande-Brétagne et Sa Majesté le Roi d'Espagne, conclue à Londres le 14 Juillet, 1786."-Martens, Rec. de Tr. iv. (1786), pp. 133-140. Annual Register, 1787, p. 78. |