Various - The Bay State Monthly, Volume 3, No. 1

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Art. 2. Vessels of the United States or Great Britain traversing the
said canal shall, in case of war between the contracting parties, be
exempted from blockade, detention, or capture by either of the
beligerents, and this provision shall extend to such a distance from the
two ends of the said canal, as may hereafter be found expedient to
establish.

Art. 3. The persons and property engaged in building the said canal
shall be protected by the contracting parties from all unjust detention,
confiscation and violence.

Art. 4. Both governments will facilitate the construction of said canal
and establish two free ports, one at each end of said canal.

Art 5. Both governments will guaranty and protect the neutrality of said
canal; provided, however, that said protection and guaranty may be
withdrawn by both, or either governments, if both or either should deem
that the persons building or managing the same adopt or establish
regulations concerning traffic therein, as are contrary to the spirit
and intention of this convention, either by unfair discrimination, in
favor of the commerce of one contracting party over the other, or by
imposing oppressive exactions or unreasonable tolls upon passengers,
vessels, goods, wares, merchandise, or other articles,--neither party to
withdraw such protection and guaranty without first giving six months
notice to the other.

Art 6. Treaty stipulations maybe made with the Central American States,
and states with which either or both parties have friendly intercourse;
and settle all differences arising as to the rights of property in the
canal, etc.

Art. 7. Contract to be entered into without delay, and the party first
commencing labor, etc., in the construction of said canal, is to have
priority of claim to construct the same, and will be protected therein
by the parties to this treaty.

Art. 8. Both governments agree that protection shall be extended by
treaty stipulations, hereafter to be made and entered into, to other
communications or ways across said isthmus.

Art. 9. Treaty to be ratified by both governments and ratifications
exchanged at Washington within six months."

This treaty bears date April 19, 1850, and is still in force in all its
provisions.

Is there anything in the terms, conditions, or effect of this treaty,
which in any way tends to militate or conflict with the declarations of
the "Monroe Doctrine?"

To answer this question satisfactorily, and give a careful analysis of
the treaty, in all its details, would take more time and space than I am
at liberty to use; but I may be pardoned if I trespass a little and give
a few reasons why I am come to the conclusion that the effect of the
Clayton-Bulwer Treaty is to abrogate and annul to a great extent the
cardinal principle of the "Monroe Doctrine."

In the first place the "Monroe Doctrine" was the accepted policy of this
government as to all foreign intervention from 1823 to 1850, and with
some of the leading minds of the country it has never ceased to be the
paramount creed in the national catechism. During these twenty-seven
years the project of building an inter-oceanic canal had been
considerably agitated, in Congress and out, and had enlisted to some
extent the sympathies of foreign powers who desired a shorter passage to
the Pacific Ocean, the East Indies, and the markets of Cathay, than the
stormy ones around the southern capes of either hemisphere.

This agitation finally culminated in diplomatic correspondence between
the representatives of Great Britain and the United States relative to
the construction of such a means of communication and the rights of the
two nations to the same, resulting in the treaty. In April, 1850, the
Senate of the United States, by a very large vote, ratified and
confirmed this treaty, notwithstanding it was vigorously opposed by such
men as Stephen A. Douglas and Lewis Cass, then in the zenith of their
fame.

It appears in the Congressional record of 1850, and subsequently, that
the treaty was ratified without a very clear understanding of its
meaning; and it was even hinted, in rather plain language, that the
representative of Great Britain had been too sharp, too diplomatic for
his American brother, and had overreached him. It further appeared that
the honorable Senate was sadly deficient in knowledge of geography, and
national boundaries; for it is matter of record, that many Senators
voted for the ratification under the impression that British Honduras
was included in the territory of Guatamala, and that the British
settlements were in that republic; while, as a fact, Balize or British
Honduras was on the easterly side of the Isthmus, never had been a part
of that republic, and the British settlements were, and always had been,
in Yucatan. They further understood the treaty to say, that neither
government should occupy, fortify, or colonize Nicaragua, Costa Rica,
the Mosquito Coast, or any part of Central America; but it is a fact,
that at the very date of the treaty, at the date of the ratification,
and since, Great Britain occupied and colonized the Mosquito coast, or
that part which joins British Honduras on the northerly side of South
Honduras; and Mr. Douglas, in 1857, in a debate in Congress upon a
"resolution of inquiry as to the present status of the treaty," said:
"I voted against the treaty, Mr. President, for the reason that I am
unwilling to enter into any stipulations with any European power, that
we would not do on this continent whatever we might think it our duty to
do, whenever a case should arise. I voted against it because by clause
1 of that treaty we are debarred from doing what it might be our duty to
do; but as it has been entered into, I desire to see it enforced. I am
not yet aware that that clause of the treaty has been carried into
effect. I have yet to learn that the British Government have withdrawn
their protectorate from the Mosquito Coast; I have yet to learn that
they have abandoned the possession of that territory which they held
under the Mosquito King."

From the day that treaty was ratified to the present, it has been a
fertile source of discord and misunderstanding between the two
governments; and from 1850 to 1858 its provisions were thrice made the
basis of a proposal to arbitrate as to their meaning: their modification
and abrogation have been alike contingently considered, and their
imperfect and vexatious character have been repeatedly recognized on
both sides. Even the present administration is laboring with the
difficulty, and seeking some honorable way to free the treaty from its
embarrassing features, or entirely abrogate it. President Buchanan, in
1858, characterized and denounced the treaty as "one which had been
fraught with misunderstanding and mischief from the beginning;" and the
leading statesmen of the country have felt that it was entirely
inadequate to reconcile the opposite views of Great Britain and the
United States towards Central America.

The Honorable James G. Blaine, late Secretary of State under the
lamented Garfield, in his diplomatic correspondence with Lord Granville,
in 1881, in summing up his review of the negotiations concerning this
treaty, says: "It was frankly admitted on both sides that the
engagements of the treaty were misunderstandingly entered into,
improperly comprehended, contradictorily interpreted, and mutually
vexatious."

An examination of the diplomatic correspondence and the Congressional
Records of the years 1852-3-4 reveals what may perhaps be unknown
history to many of my readers; that Great Britain within one year after
she signed and ratified the Clayton-Bulwer Treaty, and agreed therein
NOT "to colonize, fortify, or exercise control over, any part of Central
America," did seize upon, colonize and partially fortify and exercise
control over the five islands in the Bay of Honduras, called the Bay
Islands; and that she did this in derogation of the declarations of the
"Monroe Doctrine," and in direct violation and contempt of the Treaty,
which she had so recently entered into; that this same national
cormorant immediately surveyed and made a new geographical plan of
Central America, in which she extended her province of Balize from the
river Hondo, on the north, to the river Sarstoon on the south, and from
the coast of the bay westward to the falls of Garbutts on the river
Balize; or five times its original size; and then modestly claimed that
her possessions were not in Central America, and therefore not within
the provisions of the Clayton-Bulwer Treaty; that she has to this day
continued her protectorate, as she calls it, of the Mosquito Coast, and
that within six days after the Treaty of California, which secured to us
that "pearl of the occident," she seized San Juan and occasioned a brief
naval excitement at Greytown, the port of the San Juan river. This last
kick by Great Britain at the treaty she had so solemnly promised to
abide by was the most barefaced and impudent of all; for it was at that
time supposed by every body who had considered the question of an
inter-oceanic canal, that if built at all it would be by way of the San
Juan river, Lake Nicaragua, and across Nicaragua to the Pacific; thus
making Greytown the important port of said canal, and the key to the
control of the entire commerce thereon.

The diplomatic correspondence which followed this high-handed outrage,
like all the diplomatic (?) correspondence concerning Central America,
while firm and bold on the part of this government, yet lacked that
moral force, national importance, and perfect fearlessness, which the
fetters imposed by the treaty prevented us from using or exhibiting.

With the treaty out of the way, and the principles of the "Monroe
Doctrine" imprinted as a legend upon our banners, we should have stood
on unassailable ground; have exhibited a national importance and
vitality--an uncompromising firmness, courage and dignity that would
have carried conviction, achieved immediate and honorable success, and
commanded the respect of the civilized world. But fettered, tantalized,
and weakened, by the ambiguities and inconsistencies of this
co-partnership treaty, the United States government was compelled to
temporize, argue, and explain, and finally compromise with her
co-partner, and graciously allow the disgraceful fetters to remain.

Did Great Britain withdraw her protectorate? No. Did she withdraw her
colonies from the Bay Islands? No. Did she give up her new geography of
Central America, and restore Balize to its original territory? No. Did
she yield a single point in the controversy, except to give up and
repudiate as unauthorized the seizure of San Juan? No. Not in a single
instance when the territory of Central America was at stake, and the
provisions of the treaty were concerned, did she yield a single point;
but she has even claimed and argued, that under the proper
interpretation of the terms of that treaty she may hold all that she
then enjoyed, and all that she can seize or buy, which is more than five
statute miles from the coast line of any part of Central America;
because, as she says, the treaty means the political, not the
geographical Central America, and the political Central America is that
part only of the continent which is contained within the limits of the
five Central American republics; while the geographical Central America
comprises all the territory and adjacent waters which lie between the
republic of Mexico and South America; and that as Balize, Yucatan, and
the Bay Islands, were not within the limits of the five Central American
republics, they are no part of the Central America designated and
intended in the treaty, and are not included in the term "other
territory" used in said treaty.

The United States on the other hand claimed that the express language of
the treaty, to wit: "that neither will occupy, or fortify, or colonize,
or assume, or exercise any dominion over Nicaragua, Costa Rica, the
Mosquito Coast, or any part of Central America," means the geographical
Central America, including all that is not specifically enumerated from
Mexico on the north, to New Grenada or the United States of Columbia on
the south; that the claim of Great Britain was not a tenable or
reasonable one, and that the understanding was, that neither government
should thereafterwards acquire, or assume any control over, any part of
the territory lying between Mexico and South America.

In the year 1853, during the discussion in the Senate upon the
resolution of inquiry presented by Mr. Douglas, Mr. Clayton, then
Senator from Delaware, admitted that the ambiguity of the treaty is so
great, that on some future occasion a conventional article, clearly
stating what are the limits of the Central America named in the treaty,
might become advisable.

This admission, from the lips of the very man who so diplomatically (?)
represented the United States in the making of this vexatious treaty, is
rather significant, and aids us of this generation in coming to the
conclusion that the Clayton-Bulwer Treaty is a disgrace to this
republic, and ought to be at once abrogated.

Another historical fact, with which few are familiar, and which shows
the animus of this treaty, is this: In 1849 Mr. Hise, our minister at
Nicaragua, reported to the Honorable Secretary of State that Nicaragua
had offered to the United States, through him, "the exclusive right to
build, maintain, and forever control an inter-oceanic canal across that
republic; and offered to enter into treaty stipulations to that effect."
Mr. Hise strongly urged the acceptance of this offer, and prepared and
forwarded to the State Department a treaty, accepted by the government
of Nicargagua, which confirmed in specified terms the offer of full and
complete control and government of said canal. For reasons best known to
the Department of State, this treaty, called the Hise treaty, was never
accepted or presented to the Senate for ratification and adoption, but
was somehow quietly smothered, and the Clayton-Bulwer co-partnership
treaty reported and adopted in its stead.

It will be seen at a glance, by even the most careless political tyro,
that the Hise treaty was directly in line and accord with the express
principles of the "Munroe Doctrine;" and that it would have given to
this country the exclusive rights, which under the treaty adopted it
must share with its co-partner, Great Britain. Had the United States
accepted the offer made by Nicaragua, and thus obtained the exclusive
privilege of opening and controlling the canal, we could have opened it
to the commerce of the world, on such terms and conditions as we should
deem wise, just, and politic; and it would have been more creditable to
us as a nation to have acquired it ourselves, and opened it freely to
the use of all nations, rather than to have entered into a
co-partnership by which we not only have no control in prescribing the
terms upon which it shall be opened, but lose the right of future
acquisition and control of Central American territory. Had we accepted
it (or should we accept the recent offer of Nicaragua to the same
general effect) we should have held in our possession a right, and a
might, which would have been ample security for every nation under
heaven to have kept the peace with the United States.

Honorable Stephen A. Douglas, in commenting upon the conduct of the
State Department of 1849 and 1850, said: "When we surrendered this
exclusive right we surrendered a great element of power, which in our
hands would have been wielded in the cause of justice for the benefit of
all mankind."

"But suppose," said Senator Clayton in reply, "that Great Britain and
other European powers would not have consented to our exclusive control
of a canal, in which they, as commercial nations, had as much, and more
interest, that we had?"

"Well, then," in the language of Senator Douglas, "if Nicaragua desired
to confer the privilege, as it appears she did, and we were willing to
accept, it was purely an American question with which England or any
other foreign power had no right to interfere, or claim to be consulted,
no more than we could claim to be consulted when the Holy Alliance
sought to establish the equilibrium of Europe. We were not consulted
then, and in matters purely continental we have no occasion to consult
them; and if England, or any other foreign power, should attempt to
interfere, the sympathies of the rest of the civilized world would be
with us."

The policy of England has always been an aggressive one. While for
nearly seventy years she has professed a friendship and national harmony
with the United States, she has not ceased to plant her colonies and
establish sentry boxes on every sea-girt island, that she could control,
within a short voyage of our coast; while she has Gibraltar to command
the entrance to the Mediterranean, a garrison at the Cape of Good Hope
to control the passage to the Indies, she also maintains on the Bahamas
and the Bermudas, in her well-equipped garrisons, vigilant sentinels
whose eyes are ever watching the western continent in obedience to the
royal behest; and in the magnificent island of Jamaica she has
established, and maintained at enormous expense, a fortified and
well-garrisoned naval station, which practically controls the Caribbean
sea, the Gulf of Mexico, Central America, and even the contemplated
canal itself; and yet not content with all this readiness and armament
for aggressive war, she creeps still nearer the coveted prize and on the
Bay Islands, almost in sight of the proposed canal, she plants her royal
banner, and holds the key as the mistress of the situation; so that in
case of war between the two countries she is well prepared for a quick
and vigorous blow at the life of this republic.

She may have no occasion for many years to strike such a blow, but she
will wait in readiness; and woe be to that national simplicity which
puts its faith in princes, and takes no heed for the future.

What, then, is the duty of this republic in regard to the Central
American problem? Shall we abrogate the patriotic principles contained
in the declarations of the Monroe doctrine, and confess that we have no
definite American policy? Shall we withdraw from the honorable and
patriotic position of defender and upholder of republicanism on this
continent, and permit the royal wolves of devastation to run wild over
our sister republics, because, forsooth, in an evil hour, we were led
into an alliance which, under the name of a treaty, has embarrassed our
action, clouded our judgment, and involved our self-respect? Shall the
great American Nation, with its untold resources, its magnificent
capabilities, and its sublime faith in the manifest destiny of this
republic, calmly submit to the errors, mistakes, aye, blunders of its
aforetime rulers, and under a mistaken sense of honor continue to be
bound hand and foot by the terms of that pernicious treaty which might
well be called the covenant of national disgrace?

I maintain that it is an utter impossibility for a treaty-making power
to impose a permanent disability on the government for all coming time,
which, in the very nature and necessity of the case, may not be outgrown
and set aside by the laws of national progression, which all unaided
will render nugatory and vain all the plans and intentions of men. In
the language of Honorable Edward Everett, in his famous diplomatic
correspondence with the Compte De Sartiges in relation to the Island of
Cuba, in 1852, when asked to join England and France in a tripartite
treaty, in which a clause was embodied forbidding the United States from
ever acquiring or annexing that Island to this republic, "It may well be
doubted, whether the Constitution of the United States would allow the
treaty making power to impose a permanent disability on the American
government for all coming time, and prevent it under any future change
of circumstances from doing what has so often been done in the past. In
1803 the United States purchased Louisiana of France, and in 1819 they
purchased Florida of Spain. It is not within the competence of the
treaty-making power in 1852 effectually to bind the government in all
its branches, and for all coming time, not to make a similar purchase of
Cuba. There is an irresistible tide of affairs in a new country which
makes such a disposition of its future rights nugatory and vain.
America, but lately a waste, is filling up with intense rapidity, and is
adjusting on natural principles those territorial relations which, on
the first discovery of the continent, were, in a good degree,
fortuitous. It is impossible to mistake the law of American progress and
growth, or think it can be ultimately arrested by a treaty, which shall
attempt to prevent by agreement the future growth of this great
republic."

The good faith of this nation demands that we should live up to all our
treaties and agreements, so far as it is possible to do so; but when in
the course of events, and by reason of the fixed decrees of growth, we
are not able to do so, then it becomes us, in honor and fairness to
others, as well as to ourselves, to take immediate measures to modify,
and if necessary entirely rescind them, let the consequences be what
they may.

The genius of America is progressive, and the pluck and activity of the
average American is unsurpassed. Who shall say, then, that Central
America shall never become part of this Republic, which now increases
its population over a million each year? What statesman shall now in the
light of experience seek to bind this nation within the limits of a
treaty, that these United States will not annex, occupy, or colonize any
new territory? If the Nicaragua Canal shall ever be constructed, will
not American citizens settle along its line, and Yankee enterprise
colonize, and build Yankee towns, and convert that whole section into an
American state? Will not American principles and American institutions
be firmly planted there? And how long will it be before the laws of
progress shall require us to extend our jurisdiction and laws over our
citizens in Central America--even as we were obliged to do in Texas?
Perhaps not in our day and generation, but in the words of the lamented
Douglas, "So certain as this republic exists, so certain as we remain a
united people, so certain as the laws of progress, which have raised us
from a mere handful to a mighty nation, shall continue to govern our
action, just so certain are these events to be worked out, and you will
be compelled to extend your protection-in that direction. You may make
as many treaties as you please, to fetter the limits of this great
republic, and she will burst them all from her, and her course will be
onward to a limit which I will not venture to prescribe. Having met with
the barrier of the ocean in our western course, we may yet be compelled
to turn to the North and to the South for an outlet."

With a distinctly American policy, such as the Father of his Country
foreshadowed and advised, when in his farewell address he warned us
against "entangling alliances with foreign powers;" such as President
Monroe bequeathed to us in the declarations of the "Monroe Doctrine," we
shall be more likely to achieve honor and renown; national prosperity
and universal respect, than can ever be ours, while fettered and bound,
by the galling chains of an entangling, unwise, and unfair treaty.

* * * * *

THE DIVORCE LEGISLATION OF MASSACHUSETTS.

By Chester F. Sanger.

There evidently exists just at the present time a great and increasing
interest in the old and much debated subjects of divorce, and divorce
legislation; an interest which is intensified as the population of our
younger states with their widely varying laws governing this matter
increases and the dangers and opportunities for fraud grow more
apparent. Naturally enough, therefore, public attention is invited to
these different laws of the several states of our Union, some allowing
divorce for one cause, others refusing it upon the same ground, and one
state, at least, refusing to grant a divorce for any cause whatever. The
remedy for this seems to many to be a national divorce law, establishing
in all the states a uniform mode of procedure and a uniform basis upon
which all petitions for divorce must be grounded; it must also fix the
status of the parties in every state and prescribe the several property
rights of each after the entry of the judicial decree which separates
them from a union, not of God, as some would try to teach, but often
from fetters, the weight and horror of which are known to the parties
alone, or to those, who, unlike our theoretical reformers, have had some
practical experience in the actual operation of our divorce courts.

While it is a fact, overlooked by the enthusiasts on this subject, that
no such national law can be passed without an amendment to the
constitution, since the passage of such an act would be an invasion of
the rights reserved to the several states; yet in view of this
widespread interest in the question, the development and present
condition of the laws regulating divorce in our own Commonwealth becomes
an interesting matter of inquiry. While such a discussion has little or
nothing to do directly with the moral aspects of the subject, it is well
to note in passing that the doctrine of the indissolubility of the
marriage relation was not made a tenet of the church until as late as
1653. The Mosaic Law made the husband the sole judge of the cause for
which the woman might lawfully be "put away," and many Bibical scholars
of great attainments have maintained that when rightly interpreted the
words of Christ do not restrict divorce to the single cause of actual
adultery, while elsewhere in the New Testament divorce for desertion is
expressly sanctioned.

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