Mr. Merry to Mr. Hay.

No. 757.]

Sir: I have the honor to forward herewith copy and translation of telegram received last evening from President Zelaya, of Nicaragua, and my reply thereto. Since receipt of your No. 492 of August 5 I have awaited information from the United States consul-general at Panama in relation to the merchandise therein alluded to, shipped from New York to Corinto on through bill of lading and seized by Colombian authorities on the Isthmus as the property of the Nicaraguan Government. Consequently I have not as yet communicated to President Zelaya your decision in relation to the transit of such merchandise which, under the present conditions, closes the Isthmus to his Government.

You will note by President Zelaya’s telegram herewith inclosed that the 16 boxes of revolver cartridges alluded to have been returned to New York, whence they were shipped. Carefully reading the treaty of 1846 with New Granada it appears to me that, independent of your decision that said treaty “is not in the interest of other states, who have no right to invoke the application of the treaty,” article 17 thereof especially exempts the free transit of munitions of war, at the option of the Government of New Granada (now Colombia). Possibly this may be a more agreeable argument to present the Nicaraguan Government than that above quoted. Certainly it has been the generally accepted idea in Central and South America that the United States guarantee the free transit across the Panama Isthmus of all classes of merchandise except contraband of war, the property of any nation with which the United States or Colombia may be at war when such transit is attempted.

You will notice that this is apparently the opinion of the United States consul general at Panama, as set forth in his No. 310 of July 21, to the Department, since, had he considered the interference usual or authorized, no report thereof would have been necessary. You will also note that President Zelaya construes the treaty in the same manner, claiming free transit for munitions of war because “there is no state of way” between Nicaragua and Colombia, when both their Governments have recently permitted the use of their armed vessels to commit acts of war against each other. If I am correctly informed, a formal “declaration of war” is not a necessity in inaugurating hostilities with another power. * * * Having your instructions in this connection, as set forth in your No. 492, of August 5, I shall be guided thereby, but have deemed it proper to inform you of the second request of President Zelaya, as set forth in his last telegram.

With assurances, etc.,

William Lawrence Merry.
[Inclosure 1.]

President Zelaya to Mr. Merry.

[Telegram.—Translation.]

I regret to inform you that a box has been detained at Panama, marked “A. C. No. 1,” containing a gun, two bayonets, and accessories, consigned to the chief of the [Page 888] customs, Corinto, that the consul of Nicaragua, Don Albert Gomez, sends to me from Hamburg, a proceeding that the agent of the railroad in Panama asserts has been ordered by the governor of that port. I permit myself to advise you of this, begging you to please interpose your good offices with the United States consul-general in Panama to the effect that this box may be sent me without delay, because the free transit of the railroad of Panama being guaranteed by the American Government, and there being no state of war between our country and Colombia, I fail to find the occasion that can give cause for the infraction of a treaty in force, as has happened before in detaining and returning to New York a certain quantity of revolver cartridges that our minister of hacienda had ordered, of which you have already had advice, and with that which I now advise you regarding the box sent from Hamburg for me. I hope that in attention to my second petition you will also place before the Secretary of State the irregularity committed by the local government of Panama with the merchandise that comes consigned to our country with the object that acts of such notorious injustice shall receive efficacious reparation, since, by the treaty before referred to, it is the American Government upon whom it is incumbent to guarantee the free transit through the Panama Isthmus, as I have reminded you above.

With assurances, etc.,

J. S. Zelaya.
[Inclosure 2.]

Mr. Merry to President Zelaya.

[Telegram.]

Telegram received. Will immediately address Secretary of State, Washington, in relation thereto. Will write particulars by next mail via Corinto.

Merry.