Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1903

Mr. Beaupré to Mr. Hay.

Legation of the United States,
Bogotá, September 18, 1903.

No. 139.]

Sir: I have the honor to send you inclosed a copy of the Diario Oficial of September 15, 1903, containing the majority and minority reports of the special committee of the Senate appointed to consider the Panama Canal treaty, which reports were made on August 4, 1903. I also inclose the printed report of the Senate members of the joint committee appointed to consider the question of the construction of a canal, which report was made on September 4, 1903.

I informed you that the last report had passed the first debate in the Senate. Since that time the matter has not been considered at all. It is altogether probable that amendments will be made before the project passes the Senate, and that still others will be attached to it in the lower house.

It is the general opinion that the Congress will be closed on October 20, but this has not been definitely decided. At any rate the canal matter is not likely to be disposed of until the last days of the session.

I am, sir, your obedient servant,

A. M. Beaupré.

[Translation.]

panama canal.

[Several papers concerning the treaty between Colombia and the United States From the Diario Oficial.]

[Translation of a project of a law submitted by certain senators on August 3, 1903, by which the treaty between the Republic of Colombia and the United States of America, for the construction of an interoceanic canal between the Atlantic and Pacific oceans, is approved with modifications. From the Diario Oficial, September 15, 1903.]

The Colombian Congress, having examined the treaty signed the 22d of January of the present year between the chargé d’affaires of Colombia before the Government of the United States of America and the Secretary of State of that Republic, which treaty reads literally as follows (see text of treaty as signed), decrees:

Sole article. That the above-inserted treaty is approved with modifications set forth as follows:

First. In the preamble the reference to the law of the United States of June 28, 1902 (Spooner law), shall be suppressed.

Second. In the first article a provision shall be introduced that the Panama Canal and Railroad companies shall previously enter into an agreement with the Colombian Government setting forth certain conditions, among which the Colombian Government shall give the necessary consent that such companies may transfer their rights to the United States. It shall be stipulated that Colombia shall recover control of all the public lands which are now in the possession of the said companies, without exception, so that the cities of Panama and Colon shall remain effectively and completely outside of the zone of the concession.

Third. The terms of the second and third articles shall be modified so as to clearly provide that Colombia concedes to the United States only the right to use the zone of the canal and such part of the adjacent territory as may be necessary for the work; it must be clearly set forth that the rights conceded to the United States are in the nature of a tenancy, excluding any idea of transfer of dominion by establishing clearly and peremptorily the perpetuity of the concession. The boundaries of the zone shall be indicated with the greatest possible precision and the accessory properties included in the concession shall be clearly set forth, definitely excluding from the latter the cities of Panama and Colon. It shall be stipulated, moreover, that the guaranty of the treaty of 1846–1848 shall not be modified in any way and shall continue to be in force in the Department of Panama, including the zone of concession.

Fourth. In the seventh article the concession shall be limited expressly to the right to use gratuitously the waters of the lakes, lagoons, rivers, and other streams, natural or artificial, which are necessary for the feeding of the canal, or for its construction, sustenance, and operation, having the right to deviate the course of such waters, to raise or lower their levels, to convert them into lakes, widen or reduce them, as may be most convenient for the purposes; and it shall be stipulated that such right is exclusive so far as it relates to the use of said waters for the feeding and supply of the canal and canal auxiliaries, this concession not preventing the waters referred to being used, under legitimate authority, for other purposes than navigation, which do not interfere with or obstruct the use which the United States may desire to make of them. The use of water or waterways outside of the canal zone for the transportation of materials shall not be the exclusive right of the United States, but this right shall be granted to them without taxes or imposts of any kind, so far as relates to materials for the construction, support, and working of the canal.

The natural products, property of the Republic, which the United States may require for the work shall be stipulated with the greatest possible exactness, the right being limited to the Department of Panama, and providing that the expropriations which shall be made under this article (seventh) shall be subject to the provisions of article 14.

Fifth. In the eighth article the vagueness of the clause shall be corrected, under which no taxes shall be collected in the cities of Panama and Colon except upon merchandise imported for consumption in the rest of the Republic of Colombia, etc.

Sixth. In the thirteenth article there shall be suppressed as being contrary to the constitution all that relates to the establishment of United States tribunals and the application of the laws of that country in Colombian territory, and it shall be stipulated that the regulations of police and sanitation which shall be in force in the canal zone shall be a matter for agreement between the two Governments.

Seventh. Indemnifications which may be named by the committee mentioned in article 14 of the convention for expropriations made in certain cases referred to in the same article shall be paid by the United States, and the valuations shall be in accordance with the regulations set forth in article 9 of the law 119 of 1890.

Eighth. In the twenty-fourth article a clause of forfeiture shall be introduced, designating a term after which, if the work is not completed, all the concessions shall lapse and all the rights and property of the enterprise shall return to Colombia.

The last part of article 25, beginning, “But no delay, etc.,” shall be suppressed.

Ninth. In the additional clause the tribunal shall determine what must be done concerning differences that may arise between the contracting parties touching the fulfillment of the treaty provisions. Given, etc.

Submitted to the honorable Senate, in special committee, by the undersigned senators in the session of Monday, the 3d of August, 1903.

Pedro Nel Ospina, J. D. de Obaldia, J. M. Uricoechea, Luis F. Campo, Eduardo B. Gerlein, J. M. Ribas Groot, José M. González Valencia.

Joaquin M. Uribe B. and Juan B. Perez y Soto reserve the privilege of a separate report.

(In their minority reports they greatly amend the treaty.)

Colombia, Senate Chamber, Office of the Secretary, No. 116,
Bogotá, August 13, 1903.

To the Minister for Foreign Affairs:

In compliance with article 322 of the Senate rules. I have the honor to inform your excellency that this body, in yesterday’s session, rejected on first debate the project of law “by which the treaty (signed in Washington on January 22, 1903) for the opening of the Panama Canal is approved.”

God preserve your excellency.

Miguel A. Peñaredonda.

Colombia, Senate Chamber, Office of the Secretary, No. 121,
Bogotá, August 13, 1903.

Minister of Foreign Relations:

In order that the Department under your excellency may take such course as may be deemed proper for foreign publicity, I communicate at once to your excellency the resolution unanimously approved by the Senate at to-day’s session.

“The Senate of the Republic, in view of the rejection given to the treaty signed in Washington on January 22 of the present year, between the chargé d’affaires of Colombia and the Secretary of State of the American Union, and taking into account the fact that the people of Colombia desire to maintain the most cordial relations with the United States of America, and deem the construction of an interoceanic canal across the Isthmus of Panama a matter of the greatest importance to commerce and the world’s progress, as well as for the development and progress of the American nations, resolves:

• “First. That a committee of three senators, designated by the president of the Senate, consulting as far as possible the views of the House of Representatives, shall investigate a way of satisfying the desire of the Colombian people regarding the construction of the Panama Canal in harmony with the national interests and respect for law which has been on this solemn occasion the guide of the Senate.
• “Second. That the greatest possible publicity shall be given, in this country as well as elsewhere, to this resolution, to the modifications which the Senate committee may propose to said treaty, and to the other documents which have preceded in the consideration of this matter.

God preserve your excellency.

Miguel A. Peñaredonda.

[Inclosure with dispatch No. 139, September 18, 1903, from the United States minister at Bogotá.—Translation.]

panama canal—report of a committee and draft of a law.

Honorable Senators:

Having been designated on the 13th instant by this honorable chamber to “find a way to satisfy the desire of the Colombian people regarding the construction of the Panama Canal in harmony with the national interests and respect for law, which has been on this solemn occasion the guide of the Senate,” a designation made in conformity with the resolution adopted on the same day and reached after the unanimous rejection, on first debate, of the draft of law “which approves the treaty signed in Washington on the 22d of January of the present year between the plenipotentiaries of the Republic of Colombia and of the United States of America for the construction of an interoceanic canal through the Colombian Isthmus,” we have given our whole attention to this difficult subject, endeavoring to find a solution which may harmonize and satisfy the exigencies of the case.

It is known that the treaty was disapproved because of unconstitutionality, illegality, and inconvenience for Colombia of some of its provisions, and because, while the Senate was considering it (under its constitutional prerogative and in accordance with the provisions of the treaty itself) and was in possession of the report which, at the first debate, the majority of the committee named for the purpose submitted, and of the restrictions proposed, the Government of the United States made known to Colombia, through their United States minister in Bogota and the department of foreign affairs, and by the latter directly to the Senate, that any modification which might be introduced into the convention would not be admitted and would be equivalent to a rejection of the treaty. The Colombian Senate, in view of the attitude and declaration of the United States Government, was left necessarily with the alternative of approving what the constitution and the interest of the country ordered it to reject, or of refusing its approbation to what had been conditionally agreed upon by the two Governments. The Senate determined upon the latter of these alternatives, as was to have been expected.

Keeping within the constitutional limits (according to our loyal understanding of the constitution) and admitting such concessions as reason and experience show are indispensable, in order to arrive in this matter at a satisfactory and practical solution, we have formulated a draft of a law of authorizations, which we submit on a separate page, and which, if certainly an imperfect result because of the difficulties of the subject, of our incapacity, and of the many peculiar circumstances of the present case, will show our desire to succeed, and that an initiative which may tend to solve a problem of such universal importance as that of communication between the two oceans through our Isthmus of Panama, is not abandoned without some fresh effort made in good faith and loyalty by both parties.

It is too clear to us (as to all the world) that this matter can not be determined heedlessly, but that its solution, the result of which will affect our entire country for centuries, and represents at this time the hope of life and prosperity or the fear of ruin to important sections of the country, and even to those sections apparently remote and isolated with respect to the colossal work, demands that it be considered and acted upon in an especial manner, not permitting the standard to be disturbed either by erroneous notions or half-formed truths, which usually divert it or carry it to extremes which, the fervor of the moment having passed, may afterwards appear improper. Calmness, a preciseappreciation of the present and future national needs, in the widest and noblest sense of those words, foresight and prudence most enter into the study of this thorny question in order that it can be said that it was settled for the country’s good, which must consist in acts, not in words; in serving the country, not in harming it in the belief of serving it. We may feel sure that this is the first occasion in which this problem has been presented before the world under the conditions which we now have before us. It would be, then, useless to look for precedents. Whatever may be done to settle the matter under these circumstances, which no one can alter, will be the precedent for future cases. We must bravely and loyally meet the problem because it is ours and at the same time interests the entire civilized world. It is necessary, then, to proceed without losing sight of the most important points, which are not necessary to enumerate here, and not only to look for the greatest good possible in the facts for Colombia, but to try to patriotically avoid serious evils whose character and importance might perhaps involve worse results than those which are now circulated around by the best intentioned but, perchance, not sufficiently discerning persons who, in desiring that things shall be as they are not, close their eyes to the reality of a situation which if prudently looked into might be converted into good to the country, but if unknown or carelessly studied, will not fail to bring about dangers and complications in no way compensated by good intentions or friendly words. Civil courage demands, in cases like this, a frank expression of honest conviction.

In view of which we have the honor to propose the following draft of a resolution:

“That there be a first debate of the draft of a law by which a disapproval is ratified and authorizations are given to the Government to negotiate for the opening of an interoceanic canal across the Isthmus of Panama.”

Bogota, August 29, 1903.

Submitted by the undersigned members of the committee designated by the president of the Senate:

• Pedro Nel Ospina.
• Manuel María Rodriguez.

Upon the recommendation of the honorable Senator Luis F. Campo.

Pedro Nel Ospina.

Office of the Secretary of the Senate.

On this date it was resolved to extend the time for consideration of the draft to which this report refers until the session of next Monday, and to publish prior to that date the report of the draft of the law in a loose sheet.

September 2, 1903.

Draft of a law which ratifies the disapproval and gives authorization to the Government to negotiate for the opening of an interoceanic canal across the Isthmus of Panama.

The Colombian Congress decrees:

Article. Ratifies the rejection made on the 12th of August in the Senate chamber of the “convention between the Republic of Colombia and the United States of America for the construction of an interoceanic canal between the Atlantic and Pacific oceans,” signed at Washington on the 22d of January of the present year, 1903.

Article. Invests the President of the Republic with all the necessary powers, in order that at any time he may deem proper and opportune he may negotiate public treaties or conventions for the opening of an interoceanic canal across the Isthmus of Panama, or contract for the construction of such a work with corporations or private companies who may give sufficient guarantee of being able to carry the work to completion within the term that may be designated.

Article. The foregoing authorizations shall be understood to be granted without prejudice to the rights acquired by the New Panama Canal and Railroad companies, which companies shall continue in the full use and enjoyment of their privileges and concessions, and subject to the fulfillment of their obligations, so long as they have not come to an agreement with the Government of Colombia concerning the manner of transferring to another company, political entity (corporation?), or foreign government the rights, concessions, and privileges growing out of the contracts entered into with them.

Article. The Government of Colombia shall permit the railroad company of Panama to transfer to another government or entity the rights and enjoyments which said company may possess in the aforesaid enterprise, providing that the concessioner and concessionist respect the contracts which are now in forces in the matter, particularly as regards the recognition of the obligation to pay to Colombia the annual rental of 250,000 pesos in gold, and to transfer (to her) the absolute ownership in the enterprise at the expiration of the year 1967, or pay in that year a fair price for the work, fixed by an agreement between the two parties or, in case of disagreement, a sum to be determined by the government of some friendly nation as arbitrator.

Paragraph. In the transfer mentioned, the public lands referred to in title 2 of the contract entered into with the railroad company on the 15th of April, 1850, shall not be included, such lands shall then be returned to Colombia. The lands used by the line of the railroad, the stations and other appurtenances shall be turned over to the Republic at the expiration of the existing concession.

Article. The Government of Colombia will likewise permit the New Panama Canal Company to transfer its rights and engagements to any other government or political entity providing that the said company fulfills the following conditions

• First. That there be paid to the Government of Colombia when the transfer is made the sum of 50,000,000 francs.
• Second. That there shall not be included in the cession 500,000 hectares of public land which, under the present contract, belongs to it. These lands shall be returned to the full control of Colombia.

Paragraph. The 50,000 preferred shares which the Republic has in the New Canal Company shall be canceled as soon as the Government receives the 50,000,000 francs referred to in the second part of this article.

Article. In the negotiation of the treaties or conventions mentioned in this law the Government of Colombia is authorized to make, if it shall be necessary, concessions on the following bases:

First. To constitute a right for the sole end of constructing, maintaining, and operating a canal and its auxiliary works upon a strip of Colombian territory 10 miles wide, from the Caribbean Sea to the Pacific Ocean, in which (zone) the cities of Panama and Colon shall not be included. The duration of this right shall be for one hundred years and the concessioner shall pay for this right an annual rental sum of $150,000 in gold up to the year 1967, inclusive, and $400,000 from 1968 and thereafter, this concession being renewable at the option of the concessioner for periods of equal duration (one hundred years), provided the latter agrees to increase, in the proportion of 25 to 100, above the maximum bases of the preceding period, the annual rental sum.

The concessioner shall also have the right to use and dispose of materials of construction which are within the zone referred to and of the waters necessary for the, construction, operation, and maintenance of the canal and its auxiliary works.

2a. Expropriation in conformity with Colombian law, and at the cost of the contracting government, of private properties in the aforementioned zone, and previous indemnification, at the cost of the same government, for damages and injuries which the works or labors undertaken may occasion to private properties.

3a. The consent of Colombia for the construction of ports at the mouths of the canal and for the use of the portion of the sea adjacent to them, so far as said use is necessary for anchorage, repair, and protection of vessels.

4a. The free use across the zone for public roadways already existing or for those that may be constructed between the towns and districts of the Department of Panama.

5a. Exemption from customs duties, established in favor of the foreign contracting government for the introduction of machinery, fixtures, and tools necessary for the construction and maintenance of the work.

6a. The neutrality of the canal and explicit recognition of the sovereignty of Colombia over all its territory and inhabitants.

7a. For the judging of all causes or litigations, whether the interested parties are foreigners or Colombians and foreigners, the Colombian Government shall agree with the foreign contracting government upon the establishment, in the constituted zone, of mixed tribunals with civil, criminal, and admiralty jurisdiction, which tribunals shall be composed of jurists named in equal number by each of the two Governments and the laws and regulations which they may agree upon shall be in force.

8a. It shall be the duty of the Colombian Government to maintain order, security, and public sanitation by means of police and the national army in the aforementioned zone of the canal; but Colombia shall be permitted to ask the loan of such service from the foreign contracting government, and in such event the latter government must render the service at its own cost.

9a. And, finally, that the Bahia del Almirante shall be, in no case, included in the waters which are at the disposal of the contracting government, and that the right is reserved to Colombia to utilize as seems best the present geographical communication between the channels of the Atrato and San Juan rivers.

Article. The Government of Colombia shall stipulate in the treaty or convention a provision for forfeiture in the event that the concessioner does not begin or complete the work on the canal within the appropriate and sufficient periods that may be fixed for that purpose.

Article. It shall be expressly stipulated that any disagreement as to the meaning or interpretation of the treaty shall be settled by the arbitration of a nation friendly to both contracting parties.

Article. As an initial compensation for the granting of the right which is referred to in article——, and for the other rights and concessions authorized by this law, the contracting Government shall pay to Colombia, as a minimum, the sum of $20,000,000 in American gold upon the exchange of ratifications of the treaty.

Article. If the negotiation shall be made with a private company or association, the bases shall be analogous to those of the contract entered into with the French company, and shall primarily stipulate the following conditions:

(a) Recognition of the legislation and jurisdiction of Colombia;

(b) Renunciation of diplomatic intervention in case of any claim not a denial of justice;

(c) Forfeiture of the privilege for nonexecution of the work within the fixed periods;

(d) Recognition in favor of Colombia of such shares in the enterprise as may be the estimated value of the works already made, of the machinery, fixtures, and tools of which the nation shall be the owner at the expiration of the extension granted to the Canal Company;

(e) The complete acquisition of the enterprise gratuitously by Colombia at the termination of the one-hundredth year of the concession.

Bogotá, August 29, 1903.

Submitted by the undersigned members of the committee designated by his excellency the president of the Senate: Pedro Nel Ospina; Manuel Maria Rodriguez. Upon the recommendation of the honorable Senator Luis F. Campo, Pedro Nel Ospina.