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.
Bogotá, October 16, 1903.
Sir: I have the honor to inclose herewith a copy and translation of the report of the committee to whom was referred the project of law authorizing the Executive of the Republic to negotiate for the construction of a Panama canal. This report was read in the Senate on the 14th instant.
I am, sir, your obedient servant,
majority report of the panama canal committee.
Honorable Senators:
Colombia desires the construction of a canal via the Isthmus of Panama that will bring the two oceans into communication with each other. Since it became independent our Republic has considered such a work as an enterprise of universal progress. In 1825, at the initiative of this country, an effort was made to organize a company for this purpose. In 1828 and 1829 the liberator president gave wise and precise orders looking to the construction of a canal, and to that end a scientific commission began the work, made a survey of the route, and explored the entire distance between the two oceans.
On the 27th of May, 1835, the congress of New Granada issued a decree for the development of the enterprise, granted a privilege to Baron de Thierri, and in 1838 sanctioned a legislative decree making a concession to the company organized in France and New Granada.
After several years of exploration, the reports of the company were so satisfactory that the Government of France appointed, in 1843, a special commission which finished its examination with the most hearty support of the Government of New Granada.
We deem it unnecessary to enumerate here the successive efforts and concessions which, during seventy years, seconding the initial thought of the liberator, Colombia has made in behalf of the interoceanic canal.
We will recall, in passing, some of the various official acts designed to promote the work.
Decree of Congress in 1835; legislative decree of 1838; decree of Congress in July, 1842; legal convention of 1851; official instructions of 1843; law 60 of 1866; treaty of [Page 211] January, 1869; Congressional instructions of 1869; treaty of January, 1870; law of approval, July, 1870; law of authorization, 1876; treaty of May, 1876; treaty and law of approval, 1878; extension granted by law 107 of 1890; new second extension granted by law 91 of 1892; contract for extension, April, 1893; legislative decree granting extension in 1900.
As is seen, Colombia, by solemn public acts, has shown that she considers the construction of the canal as a great national work and as a necessity for the commerce of the world. Although the Senate unanimously rejected the Herran-Hay treaty, it did so not with a view to opposing so glorious and necessary a work, but from the fairest and highest motives.
The foreign press affirms our right to reject said tready, and it is recognized by the chairman or the Interoceanic Canal Committee. That remarkable public man who, for more than a quarter of a century, has fought for an interoceanic canal controlled by the United States, hearing of the rejection, expressed his views as follows:
“If the Colombian Congress has rejected the treaty, it is because that country respects its constitution, is mindful of the integrity of its territorial limits, desires to maintain its friendly relations with the United States, and is watchful of its financial interests. All this will raise that Republic in the estimation of other peoples and nations.”
We will now examine the bill ratifying the rejection and authorizing the Government to negotiate for the construction of an interoceanic canal via the Isthmus of Panama.
As is seen, the said bill has two objects, viz, to confirm the Senate’s rejection of the treaty between the Republic of Colombia and the United States of America, concluded at Washington January 22, 1903, and to invest the President of the Republic with such powers as will enable him to conclude public treaties or conventions relative to the Panama Canal or to contract for the same work with private companies.
We consider that the first object is not only superfluous, because the rejection by the Senate is based upon constitutional provisions to which an authentic interpretation has been given and which have constantly been put into practice in the same sense, which interpretation and practice render the rejection sound and correct in the form in which it was made; but also that the new form of ratification which is proposed would introduce a doctrinal theory different from that already established and accepted for seeking to decide a special case of grave import, to which, for this and many other reasons, it would be wholly inapplicable.
In fact, it is a constitutional provision that every proposed law by means of which the legislative houses exercise, or seek to exercise, their powers in conformity with article 76 of the constitution, may be rejected in any of their debates, thereby fulfilling the negative in contrast to the positive form, both of which are the outcome of the twentieth provision of said article.
If this were not so, the members of the houses would be deprived of the necessary freedom in their opinions and votes, and both would cease to be deliberative bodies.
The authentic interpretation to which we refer is contained with great clearness in article 323 of the rules of the Senate, identical with article 322 of those of the house of delegates, which we here insert:
“As it is not possible for a treaty to be constitutionally approved otherwise than by Congress, with the sanction of the Executive, but as it may be rejected by the Senate or House of Representatives, like any other proposed law, according to the constitution, if any decree should come from the House of Representatives totally and absolutely rejecting a treaty, it shall return it, stating that the Senate is apprised of its rejection.”
When the said article 76 of the constitution provided that the Congress should exercise by law the powers enumerated in that article, among which is the power to approve or reject public treaties, it tended to prevent the exercise of those powers, notwithstanding the prohibition contained in paragraph 2 of article 78 of the same constitution, by means of simple resolutions, but it did not pretend to compel the legislators to vote in a determinate sense or to pass laws, even those most necessary.
The second object of the proposed law concerning authorizations consists in finding a way to satisfy the desire of the Colombian people regarding the excavation of the Panama Canal in harmony (says the proposition approved by the Senate on the 13th of August last) with the national interests and respect for law, which has been on this solemn occasion the guide of the Senate.
Your committee considers that the proposed law relative to authorizations is unconstitutional. Article 120 of the constitution says:
“It shall be the duty of the President of the Republic, invested with the supreme administrative authority * * * 10. To direct diplomatic and commercial relations with other powers and governments * * * and to conclude treaties and conventions [Page 212] with foreign powers. Treaties shall be submitted to Congress for approval and conventions shall be approved by the President during the recess of Congress, with the advice and consent of the ministers and council of state. The proposed law shall not modify the provisions of the constitution.”
Besides, that law is not only unconstitutional, but fails to meet its object because the instructions which would be given to our diplomatic agents, instead of being necessarily confidential, would be public, and known to the other Government or to the contracting company, which would consequently have an indisputable advantage in the case.
Furthermore, the Senate does not overlook the fact that if this law concerning authorizations should be passed, and if the Executive, basing his action upon it as upon a firm basis, should expedite a negotiation and conclude a treaty, he would perhaps give occasion to the power with which the treaty was concluded to complain, subsequently, that a Congress had rejected what this Congress and the Executive branch of the Government had presented as a basis of negotiations.
Moreover, the matter being carefully considered, no negotiations could, in any case, be properly carried on upon the bases that would be presented to this Congress by that law; and the law would not have the serious and efficient character which every law ought to have.
Your committee thinks that this law is not only unconstitutional and ill adapted to meet its purpose, but that it is unnecessary. The constitution which has provided for the independence of the different branches of the Government, thus consecrating a principle which has been recognized since the adoption of the constitution of 1811, has also traced limits for those branches, and although it leaves to the Executive the power to conclude treaties, it makes it absolutely obligatory upon him, at the same time to submit them to the legislative branch for its approval. Article 57 says: “All branches of the Government shall be limited, and shall exercise their respective powers separately.” And article 76 says that it shall be the duty of the Congress “to approve or reject such treaties as the Government may conclude with foreign powers.”
Even if a law concerning authorizations should be passed, the treaty that should be concluded in virtue thereof by the Government would necessarily have to be submitted to the approval of another legislature, which might fail to pass it.
What would, therefore, be gained by a law that would give no force to the treaty which would be concluded on the bases and authorizations which it contained?
We present these abstract considerations, and they would all be pertinent even if the Executive were free to conclude treaties looking to the construction of the Panama Canal, but it is known that the Government of Colombia is not at liberty to do so; a contract exists which binds it, and this link has not been broken.
This is, in our opinion, the greatest obstacle to the law in question, which would be premature if not calculated to defeat its own object. We think it useless to demonstrate that the fundamental point to which the attention of the Senate should be confined is the one relating to the validity of the engagement already contracted by the Government.
The Herran-Hay treaty has ceased to exist, both because of its unanimous rejection by the Senate and because the time for the exchange of its ratifications, the 22d of September, has already expired, without any extension having been provided or asked for. Consequently the state of the case is the same that it was before the conclusion of the treaty. The first condition therein established was the permission granted to the new company to transfer its rights. The Senate having refused to accept this condition, the company has remained under obligations to fulfill its contract, and the Colombian Government is still under obligations to respect all its provisions and to cause them to be respected.
How can it be asked that Congress shall enact a law of authorizations to negotiate with a foreign government when the rights and privileges of the New Panama Canal Company are still in force?
The treaty concluded April 4, 1893, which amended those of March 23, 1878, and December 10, 1890, granted to the New Panama Canal Company an extension of ten years—that is to say, until December 31, 1904. Consequently, even without a new extension, the company will be in the full enjoyment of its rights and privileges until October of the coming year. But there is another consideration: The legislative decree No. 721 of 1900 granted to the company a new extension of six years, which begins to be reckoned next year and will end October 31, 1910.
One point now remains to be examined, which has so often been discussed by the press, a point which, now that the matter is under discussion, should be defined.
Is the extension granted by that legislative decree valid or not? In the first case—that is to say, if it is considered valid—seven years must elapse before the extension [Page 213] expires, and therefore any law concerning authorizations seems premature, as three sessions might still be held which would be able to examine the matter and to legislate concerning it with better data and evidence than the present Congress has; and if the extension is not valid, the aspect of the question changes entirely, and the basis of discussion will be quite different. By the 31st of October of next year—that is to say, when the next Congress shall have met in ordinary session—the extension will have expired and every privilege with it. In that case “the Republic will become the possessor and owner, without any need of a previous judicial decision and without any indemnity, of the canal itself and of the adjuncts that belong to it, according to the contracts of 1878 and 1900.”
When that time arrives, the Republic, without any impediment, will be able to contract, and will be in more clear, more definite, and more advantageous possession both legally and materially. The authorizations which would then be given by the next Congress would be very different from those that can be given by the present one.
It is seen, therefore, that it is the duty of Congress to decide, as a previous question that can not be shirked, concerning the validity of the extension granted in 1900. We venture nothing on the subject, and we respect, in advance, the decision of Congress in so delicate a matter. Supposing that it does not ratify said extension, it is well to observe now that it would be necessary to include in the budget the appropriation that would be necessary to repay to the company the sum of 5,000,000 francs with interest.
In view of all the foregoing, we conclude our report by laying before you a draft of a law whereby a contract is approved, and by submitting to your consideration the following:
Let the discussion of the draft of a law whereby a rejection is ratified and authority is granted to the Government to negotiate for the construction of an interoceanic canal across the Isthmus of Panama be indefinitely postponed.
Honorable Senators:
- Guillermo Quintero Calderon.
- J. M. Rivas Groot.
- Luis Maria Calvo.