Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1904

Mr. Snyder to Mr. Hay.

American Legation,
Bogotá, April 19, 1904.

No. 311.]

Sir: I have the honor to send you herewith copies and translations of further correspondence from the Colombian foreign office relative to events connected with the formation of the Republic of Panama.

The minister’s note of the 12th instant represents the combined efforts of the entire cabinet, and two months have been spent in its preparation. It has been the subject of general discussion in diplomatic and Government circles for some time, and all persons presenting business matters at the foreign office were informed that this note was in a state of preparation and no other business could be given attention until it was finished.

The Government has ordered an edition of 20,000 copies to be printed for general distribution throughout Colombia.

I am, etc.,

Alban G. Snyder.

[Inclosure.—Translation.]

Señor Rico to Mr. Snyder.

Ministry of Foreign Affairs,
Bogotá, April 12, 1904.

Sir: In the note which I addressed to your honorable legation on November 12 last in regard to the separatist revolution on the Isthmus of Panama I stated that as the possibility of the violation or infringement of the treaty of 1846 in any manner whatever had been provided for, I presented to the Government of the United States, through His Excellency Mr. Beaupré, the exposition contained in that note of the acts committed in violation of that treaty, in the conviction that said Government would deal justly by Colombia in accordance with what had been stipulated and with international law. The stipulation to which I referred is section 5 of article 35 of the same treaty, which says:

“If unfortunately any of the articles contained in this treaty should be violated or infringed in any way whatever, it is expressly stipulated that neither of the two contracting parties shall ordain or authorize any acts of reprisal, nor shall declare war against the other on complaints of injuries or damages, until the said party considering itself offended shall have laid before the other a statement of such injuries or damages, verified by competent proofs, demanding justice and satisfaction, and the same shall have been denied, in violation of the laws and of international right.”

Your honor’s Government has not only not given justice to Colombia, but to the acts then committed in violation of the treaty of 1846 and of international law, has added those which I will now mention:

1. The formal recognition of the so-called Republic of Panama.

2. The official reception as minister of an agent of the rebellion.

3. The notification of Admiral Coghlan to the general in chief of the army of the Atlantic that he had instructions to prevent the landing of Colombian troops on the Isthmus.

4. The notice given on December 11 to the Colombian minister on special mission that, by the treaty with the revolutionists, notwithstanding that it had not been approved by the Senate, the Government of the United States concluded that it ought to maintain the independence of the Isthmus and preserve the peace and order of Panama; that it would view with the gravest concern any invasion of that Department by Colombian troops, and that it thought that the time had arrived to close the chapter of civil wars there.

5. The repetition of this notification in the note of December 30, in which it was stated that the formal attitude of the American Government will be dictated by circumstances and that it would regret a provocation which would cause the adoption of a hostile attitude,

6. The signing of a treaty with the revolutionary government of Panama for the opening of the interoceanic canal through the Isthmus.

7. The guaranty in that treaty of the independence of the Isthmus in opposition to the engagements contracted with Colombia guaranteeing its property and sovereignty over that territory.

It is unnecessary to insist that the attitude assumed by your Government toward the secession rebellion of the Department of Panama does not conform to the terms of the treaty of 1846 and to the rules of international law. The facts are in such flagrant contradiction to the stipulations of that treaty and to the principles of that law that all new argument in explanation thereof would be superfluous.

Neither in the act of independence of the city of Panama nor in the manifesto of the so-called junta of government do the rebels say that the Isthmus has been an independent state, but that they severed their destinies from Spain and voluntarily joined their fate to that of the great Republic of Colombia. I copy the following from the act of independence of November 28, 1821:

• “1. Panama, voluntarily and in accord with the general vote of its people, declares itself free and independent of the Government of Spain.
• “2. The territory of the provinces of the Isthmus belongs to the Republic of Colombia, to whose Congress its representatives will go to represent them.”

As is seen, the provinces of the Isthmus passed, without intermission, from the rule of the Viceroyalty of Santa Fe to be a Department of the Republic of Colombia. Notwithstanding this to be the historical fact, the Government of the United States informed me through its legation, on November 11 last, that the city of Panama had resumed its independence. An affirmation which aims to insinuate the idea that the Isthmus had been an independent state, thereby giving international importance to internal incidents which could not serve to give autonomy to that state.

Your Excellency’s Government, in the treaty made with the agent of the rebellion for the opening of the canal, in addition to having guaranteed the independence of the Isthmus, accepted the stipulations which I mention (having extracted them from that treaty as the American press had published it) as follows:

By article 2 of the treaty the Republic of Panama cedes to the United States the dominion over a zone of 5 miles on each side of the canal, over 3 miles of sea adjacent to each end of it, and also cedes the lands necessary for the construction and preservation of the canal and its dependencies, and at the same time the use, occupation, and perpetual dominion of all islands included in said zone, together with the small islands in the Bay of Panama, called Perico, Naos, Flaminco, and Culebra.

By article 3 Panama gives to the Union the right to exercise over the zone described in article 2 the same power and authority which the United States would have if it were sovereign, with the exclusion of the exercise of that power by Panama.

According to article 4 the Republic of Panama cedes to the United States the perpetual use of the rivers, creeks, and navigable rivers which may be necessary for the construction and preservation of the canal and for works of sanitation.

By article 5 the Republic of Panama cedes in perpetuity to the United States the monopoly of any system of communication through its territory from the Caribbean Sea to the Pacific Ocean, by canal or by railroad.

These concessions are equivalent to the cession to the United States of all territories to which they refer.

The treaty was written a very few days after the beginning of the secession rebellion, without having given time for it to be organized in any form so as to consult, even for appearance sake, the popular wish. To this haste is added, as I have already said, the fact of having put into force that pact in reference to the guaranty of the independence of Panama before its ratification or exchange; that is, before it is perfected.

This incident will convey to the universal conscience the conviction that the United States have proceeded and are proceeding so as to place the independence of the Isthmus under their open military protection, so as to obtain and preserve the advantages before mentioned, which exceed substantially those Colombia had offered to give, because they imply the complete cession of dominion and government of the zone, the territories, and the territorial waters. This deduction would not have such solid foundation if the treaty in question had not been negotiated at the beginning of the revolution.

If the opinion which I have just stated is not deduced from this arrangement and the fact of not having permitted Colombian troops to land on the Isthmus, then the extreme tone of the diplomatic documents destined to effect the approval, without modifications, of the treaty of January 22, 1903, which I now cite, would make it apparent.

The minister of the United States handed to me the following memorandum on June 13, 1903:

“I have received instructions from my Government by cable in the sense that the Government of Colombia apparently does not appreciate the gravity of the situation. The negotiations for the Panama Canal were initiated by Colombia and were energetically pressed upon my Government for several years. The propositions presented by Colombia, with slight modifications, were finally accepted by us. In virtue of this agreement our Congress reversed its previous judgment and decided upon the Panama route. If Colombia should now reject the treaty or unduly delay its ratification, the friendly relations between the two countries would be so seriously compromised that action might be taken by the Congress next winter, which every friend of Colombia would regret.”

In a note of August 5, 1903, His Excellency Mr. Beaupré said:

“I may say that the antecedent circumstances of the whole negotiation of the canal treaty, from official information in the hands of my Government, are of such a nature as to fully warrant the United States in considering any modification whatever of its terms as practically a violation of the pact, such as may involve the very greatest complications in the friendly relations which have hitherto existed between the two countries.”

I replied to the said note, memorandum, and other notes from the United States legation, sustaining the right of Congress to modify or reject the treaty without those acts being contrary to the antecedents of the negotiation or violations of the engagements contracted by the Government. My reasonings, however, founded on the constitution of this country and international law, did not seem to change the intention insinuated against Colombia in the said documents—an intention which has taken form in surpassing acts, with the sole variation that these have not proceeded originally from the Senate, but from the executive power of the United States.

It is of great usefulness, in order to appreciate effectively the proceedings of the two Governments in the canal matter, to record some antecedents, very remote, but intimately connected with the latest grave happenings which menace the integrity and sovereignty of this Republic.

On June 14, 1869, a treaty for the digging of the canal which would unite the Atlantic and Pacific oceans by way of the Isthmus of Panama was signed in Bogotá by the plenipotentiaries of Colombia and the United States. Article 8 of that project is as follows:

“Art. 8. The United States of Colombia will preserve her political sovereignty and jurisdiction over the canal and adjacent territory; but she will not only permit, but will guarantee to the United States of America, in conformity with the constitution and the binding laws of Colombia, the pacific enjoyment, government, direction, and management of the canal as it has been previously specified.”

Before submitting that treaty to the Colombian Congress the one of January 26, 1870, was substituted, article 10 of which is as follows:

“Art. 10. As soon as the canal with its dependencies or additions is constructed the inspection, possession, direction, and management of it will belong to the United States of America, and will be exercised by them without any foreign intervention, but without jurisdiction or any control over the territory or its people. The United States of Colombia will preserve her political sovereignty and jurisdiction over the canal and adjacent territory, but not only will permit, but will guarantee to the United States of America, in conformity with the constitution and binding laws of Colombia, the peaceful and tranquil enjoyment and the administration, direction, and management of the canal, as stated. But that guaranty does not share in any respects with that which in general the laws of Colombia concede to all persons and interests included in the territory of Colombia; and if any enterprise, in order to obtain greater security, should want or ask for any extraordinary public force, the Government of Colombia will furnish it, at the expense of the same enterprise.”

This treaty was not ratified because the Colombian Congress introduced modifications which the executive power of the United States did not accept. However, it is apparent from both treaties signed by the minister of the United States that his Government acknowledges the full sovereignty and jurisdiction of Colombia over the canal and adjacent territories. This acknowledgment was not in the convention signed in Washington on January 22, 1903, but, on the contrary, owing to the persistent demand of said Government, initially stated by the head of the Canal Commission, the restriction of autonomy was accomplished by the establishment of mixed and American tribunals in the zone for the recognizing and trying of certain civil and criminal cases, as well as the use of the same zone for the canal work for periods of one hundred years, at the sole option of the same Government.

This radical change of views on the part of the United States alarmed the legislators of Colombia, and was a greater influence for the rejection of the treaty than the insufficiency of the compensation, notwithstanding the fact that this was notoriously small, because Colombia would renounce, without any indemnification, the right to enter into the possession and control of the work of the canal, together with the public lands granted therewith, the buildings, materials, works, and improvements of the canal and its dependencies, which would come into her possession at the latest within six years. It is well known that the French company was aware of the impossibility of finishing the work, and that the goods and property, which were the only assets which the company could preserve, together with the greater part of the shares of the Panama Railroad, were to be turned over to the American Union for 840,000,000, while to Colombia, who entertained the hope of acquiring these great values before mentioned, only $10,000,000 was offered, and this not only without mentioning the said properties, which were in reality those deserving the compensation, but according to that expressed in article 25 of the treaty:

“As the price or compensation for the right to use the zone granted in this convention by Colombia to the United States for the construction of a canal, together with, the proprietary right over the Panama Railroad, and for the annuity of $250,000 gold, which Colombia ceases to receive from the said railroad, as well as in compensation for other rights, privileges, and exemptions granted to the United States, and in consideration of the increase in the administrative expenses of the Department of Panama consequent upon the construction of the said canal.”

Colombia, in order to facilitate the negotiation, agreed that it should be given this form, even though the $10,000,000 was no compensation for the great mass of properties and values given up or denounced, and notwithstanding the fact that said sum and the annual rent of $250,000 did not represent, in reality, any indemnity for the use of the zone or of the islands of Culebra, Naos, Perico, and Flamenco. But the Republic has had in view, as a guide for its conduct in this matter, not to put obstructions in the way of the execution of this great work, commanding, as it does, the interests of the world’s navigation and commerce, and has authorized, in fact, the most liberal concessions compatible with its integrity and sovereignty.

The annual rent of $250,000, which Colombia would not begin to receive for nine years, was in lieu of that which the Panama Railroad Company ought to pay for sixty years, and for this reason it should not figure as part of the compensation during that lapse of time, or afterwards, because Colombia would lose the right to acquire the property of that company at the expiration of the privilege, notwithstanding the fact that it is to be presumed that the railway will continue in service as an auxiliary work of the canal.

Permit me, excellency, to cite other antecedents which led the Government of Colombia to believe that the Government of the United States would adopt a very different course from that which it has adopted in respect to the separatist rebellion of Panama.

In reply to a note of March 30, 1820, from the Colombian chargé d’affaires, in which he proposed to the Secretary of State the loan of a certain number of arms, giving as his reason that upon the unanimous request of the people New Granada and Venezuela had united themselves by a fundamental law of the sovereign congress and formed a sovereign state, free and independent, under the name of the Republic of Colombia, with a provisional constitution and a representative government, and which exercised all the functions corresponding to a state without the least hindrance, His Excellency John Quincy Adams, answered:

“But as the first magistrate of the nation observed and has continued observing the principles of impartial neutrality in this war, he considers it an indispensable obligation that he refrain from lending any aid to either one of the parties engaged in this conflict, which under similar circumstances he should deem it his duty to refuse to the other party. Such is the law of neutrality, and from that assumed and declared position he can make no deviation, according to the precepts of the Constitution of the United States, save that authorized or sanctioned by a legislative act.”

You will note, your honor, that it was ten years after New Granada and Venezuela had proclaimed their independence and were fighting for it when the Government of the United States recognized that the law of neutrality prevented its lending any aid to either of the parties in the conflict, which under similar circumstances it was its duty to refuse to the other party, and you will observe also, your honor, that your Government, cutting itself loose from this rule, hastened to recognize the independence of the Isthmus to prevent its submission by Colombia and to put into force before ratification by the Senate a treaty guaranteeing that independence.

A report dated July 14, 1860, from the Department of State to Congress in reference to the commercial relations between the United States and the Spanish-American countries contains the following which I copy:

“With many of them we have established relations by special treaties. The treaty of 1846 between the United States and New Granada contains an article guaranteeing the neutrality of a certain part of the Isthmus in the territory of Colombia and for the protection of the rights of sovereignty and property which appertain to that nation. That treaty is, therefore, a true alliance of protection between the United States and that Republic.”

On April 30, 1866, in a note, Mr. Seward, speaking of the sovereignty and independence of Colombia on the Isthmus, stated that “if those great interests were at any time attacked by another power, domestic or foreign, the United States will be ready in union with its ally to defend them.”

On June 24, 1861,^a His Excellency Mr. Blaine, Secretary of State, sent an important note to His Excellency Mr. Lowell, minister of the United States in London, from which I take these passages:

“In 1846 a memorable and important treaty was signed between the United States of America and the Republic of New Granada, now the United States of Colombia. By the thirty-fifth article of that treaty, in exchange for certain concessions made to the United States, we guaranteed ‘positively and efficaciously’ the perfect neutrality of the Isthmus and of any interoceanic communications that might be constructed upon or over it for the maintenance of free transit from sea to sea; and we also guaranteed the rights of sovereignty and property of the United States of Colombia over the territory of the Isthmus as included within the borders of the State of Panama.

“In the judgment of the President this guaranty, given by the United States of America, does not require reenforcement, or accession, or assent from any other power. In more than one instance this Government has been called upon to vindicate the neutrality thus guaranteed, and there is no contingency now foreseen or apprehended in which such vindication would not be within the power of this nation.

“There has never been the slightest doubt on the part of the United States as to the purpose or extent of the obligation then assumed, by which it became surety alike for the free transit of the world’s commerce over whatever land way or waterway might be opened from sea to sea and for the protection of the territorial rights of Colombia from aggression or interference of any kind. Nor has there ever been room to question the full extent of the advantages and benefits, naturally due to its geographical position and political relations on the Western Continent, which the United States obtained from the owner of the isthmian territory in exchange for that far-reaching and responsible guaranty.” (Foreign Relations of the United States, 1881, pp. 537–538.)

In reference to the same matter, Mr. Blaine, on the same day, June 24, 1881, sent to Mr. Dichman, United States minister in Bogotá, this dispatch:

“Your No. 269, of the 9th ultimo, reports the rumors which reach you, confidentially, to the effect that Colombia is seeking from the European powers some sort of declaration of the neutrality of the Isthmus of Panama, as well as of Colombian sovereignty over the teritory thereof.

“In view of like rumors which reached me from various channels, exhibiting a tendency on the part of some of the maritime powers to consider the expediency of uniting in such a guaranty, I have already prepared a circular instruction to the representatives of the United States in Europe, directing them in event of their having cause to believe that this movement is assuming tangible proportions to acquaint the respective Governments to which they are accredited with the view of the President, that the existing guaranties, under the treaty of 1846 between the United States and Colombia, are complete and sufficient and need no supplemental reenforcement from any other source.

“I am not yet prepared to direct the communications of this dispatch in extenso to the Colombian Government, but if the feeling of excitement which arose on Señor Santo Domingo Vilas’s return to Bogotá and culminated in a request for your recall should have yielded to a better spirit, showing a return of confidence, you may, if proper occasion offers, inform the Colombian secretary for foreign affairs of the stand taken by this Government to check the apprehended movements of the powers of Europe in the direction of a joint guaranty as needless, as offensive to Colombia and to the United States as well.” (Foreign Relations of the United States, 1881, pp. 356–357.)

The declarations made in the above notes produced the conviction in this country that its territorial rights on the Isthmus of Panama would be protected by the American Union “against all aggression;” and that that for which the guaranty was offered would not require cooperation, consent, or approval of any other power, and much less of that which was represented as a guaranty so complete and sufficient that it would not require the additional force of any other proceeding.

The guaranty was stated in a special clause of the treaty of peace, friendship, navigation, and commerce of 1846. Whether it is considered as only a clause of that pact, as a treaty of guaranty, or better, as an alliance of protection, it is a solemn engagement which obligates the United States, and which it has put aside on this occasion. Such behavior in this guaranty will be judged and qualified by history and the Supreme Judge of the earth, men, and nations.

The plenipotentiaries of north Germany, Austria-Hungary, Great Britain, Italy, Russia, and Turkey declared that “they recognized, as an essential principle of international law that no power could free itself from the obligation of a treaty or modify its dispositions in any way without the assent of the contracting parties, obtained through means of an amicable arrangement.” (Addition to protocol 5, January 12, 1871.)

By the interpretation given on this occasion by the Government of the United States to article 35 of the treaty of 1846, by its will alone—or, that is, without the assent of Colombia—it is liberated from the obligation contracted of guaranteeing the property and sovereignty of this country on the Isthmus, and takes to itself the power, as has been done, of proceeding in a sense diametrically opposed to that obligation, which is a volation of the essential principle of international law expressly recognized by the said powers. To that principle Colombia intrusted her rights as in an impregnable fortress, and I so stated recently before the Senate, fears havng arisen in that body that the Department of Panama was starting a revolutionary movement.

But that confidence was not only founded on that principle, but on that also which was provided for by the terms of the treaty, the notes of Mr. Blaine, and on the note which the minister of the United States directed to me on August 5, 1903, and in which, among other important things, is read:

“It is to be regretted that the reference to the necessity for the practical reenactment of the treaty of 1846–1848, in the Senate committee’s report, should constitute almost a doubt as to the good faith of the intention of the United States in its compliance herewith. I must assure your excellency that unless that treaty be denounced in accordance with its own provisions my government is not capable of violating it, either in letter or spirit; nor should there be any fear on the part of Colombia that, if ratified, the clauses guaranteeing her sovereignty in the pending treaty, couched as they are in still more precise and solemn terms than those of 1846, will ever be disregarded in the slightest degree by the Government of the United States.”

I referred tacitly to the passage I have just copied when I also said before that chamber that as long as the treaty of 1846 was in force the property and sovereignty of Colombia on the Isthmus of Panama was not subjected to any danger. The declarations of the honorable representative of the United States and article 4 of the American law of June 28, 1902, communicated to this Government, and which provided for the opening of the canal by way of Nicaragua if the negotiation was not concluded with Colombia, fully justified this Government’s secure attitude, notwithstanding certain indications among them, the opinions of the press of the United States and other countries, which either supported or denounced the revolutionary movement which has been accomplished in Panama, because the promise of the minister and the order contained in the law fully deprived such denunciations, opinions, and suspicions of any weight.

If His Excellency Mr. Beaupré had not made these strong statements and the Government of the United States had not communicated the law of June 28, 1902, to this Government precautionary measures would have been taken which would have prevented with all safety the revolutionary actions which have taken place in that State since November 3 last.

The Government of the United States has exercised military sovereignty on the Isthmus of Panama in order to favor the independence of that Colombian department. That being so—and it is undeniable that it is so—what will be the future fate as regards the independence and integrity of the Central and South American nations? It is a logical deduction that it will be what the powerful and for them irresistible Republic of the North cares to mete out to them.

The interoceanic canal will modify the conditions of navigation in the two seas, but in order to dig it in a zone under the dominion of the United States the American solidarity has been subverted, and if the ties of government between the Department of Panama and the Republic of Colombia remain definitely dissolved then the ties of confidence and fraternity which have been the bond of unity between the sovereign people of this hemisphere will also remain broken.

I make this observation as very pertinent, for it has been Colombia’s lot to suffer the application of the new regime, which appears as a menace to the integrity, autonomy, and consolidation of the Republics of this continent. It is to be hoped that the people of the United States, notwithstanding the treaty which guarantees the independence of Panama, will not consent to the definite establishment of such regime, and that the solution of the present incident between the two countries may be the reintegration of Colombia and the strengthening of the relations of friendship which ought to exist among the nations of the New World in order to push forward their development in the ways of progress founded on order and law.

We have received in newspapers sent to this ministry from the Colombian legation in Washington the general message which His Excellency the President of the United States sent to the Senate on December 7, 1903, and the special one which he addressed to the same body on January 4, 1903, relative to the interoceanic canal matter and the revolutionary movement in Panama. In said messages I see opinions of greatest importance and references which I feel compelled to take into respectful consideration, since they refer directly to this Republic. It is not my intention to enter into an analysis of each one of these opinions and references, but to make in order a brief exposition of the most important, so that it should not be thought that Colombia accepts or recognizes implicitly said acts as antecedents, which in whole or in part are contrary to her annals, and because silence would be equivalent to admitting to her injury principles and doctrines contrary to those universally considered as guardians of the integrity and sovereignty of the nations and of the efficacy of public treaties.

The treaty of 1846 does not invest the United States with any substantial right of property curtailing the rights of property and sovereignty which New Granada (now Colombia) had at that time over said territory. Territorial dominion can not be temporarily transferred, according to the universal principles of international law, except by an agreement of repurchase (pacto de retrovento); and in the treaty there are no stipulations of that nature, nor of sale in perpetuity, which would be contradictory to the denunciatory character given to that diplomatic document and which has no conditions appertaining to the transfer of dominion, nor to the transfer in perpetuity of use, even when considered as an easement.

Of the disturbances on the Isthmus in the synopsis contained in the message of December 7, which reports from the American consuls make amount to 53 in fifty-seven years, there are 19 which figure respectively under the titles of riots, attempted incendiarism, tumults, or revolts, because they were passing incidents which could not be classed as revolutions, and which, under the same or different names, occur with frequency in the most advanced countries of the New and Old World.

There remain 34 disturbances, of which 8 affected the whole nation and 26 were local, generally of short duration, and the great majority took place during the Federal regime which began on the Isthmus in 1855 and came to an end in 1886. The revolution which began in 1899 lasted three years and has been made to figure in each of the years 1900, 1901, 1902, and is counted as four revolutions.

Notwithstanding the disturbances of public order which have taken place on the Isthmus during the life of the treaty of 1846, if the interoceanic transit has been interrupted at times it has been for a very insignificant period, and I am certain that long intervals have passed without the slightest interruption having taken place.

It is true that the presence of American ships and the landing of troops of that country, although done on rare occasions and without their having to fight, has contributed to the security of transit, which was precisely the object of article 35 of the treaty, and for which the United States has received sufficient compensations. It is notorious that, ordinarily, during the fifty-seven years of the life of the treaty, the instituitions have regularly performed their functions and peace has been maintained on the Isthmus, and that, for this reason Colombia has demonstrated her capability of governing that department.

In order to maintain order on the Isthmus it is not sufficient for the United States to insure the independence, but it has to enforce it as sovereign of the territory, because, with a few exceptions, the revolutionary movements which have taken place in that region have been prepared and executed, in whole or in part, by the people of the Isthmus, and have had entirely a political nature, so that foreigners and the oceanic traffic have not been objects of attack by the combatants.

Autonomy would not be a guarantee for the constant peace of the Isthmus, as it has not been for any of the countries of this continent, in which, notwithstanding their disturbances, commence and civilization have prospered and advanced.

Without doubt, in anticipation of the necessity of enforcing the peace on the Isthmus, there was placed in the convention between Panama and the United States the following part of article 7:

“The United States will have the same right and authority to maintain public order in case the Government of Panama should not be able to maintain it in Panama and Colon.”

This stipulation is strengthened by another in the same treaty:

“Article 21. If it should become necessary at any time to employ armed forces for the safety or protection of the canal, or the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times and in its discretion, to use its police and its land and naval forces, or to establish fortifications for these purposes.”

In conjunction with the two preceding articles there was introduced in the constitution of the so-called Republic of Panama article 131, which is as follows:

“The Government of the United States can intervene in any part of the Republic of Panama in order to restablish the public order and constitutional rule, in case it is disturbed, provided that that nation assumes or has assumed, by means of a treaty, the obligation of guaranteeing the independence and sovereignty of this Republic.”

In virtue of the preceding article and the two of the treaty which are related to it, the autonomy of Panama is entirely illusory.

Unanswerable proof that Colombia has not placed itself in an Oriental isolation toward the transit nor adopted unjust proceedings opposed to the general use of the Isthmus of Panama for traffic, are shown in the fact that a third part of the canal is already constructed by contract with her, that a French company is pledged to finish the work by 1910, as well as the fact which I stated on another occasion, that Colombia has declared the passage of persons and merchandise from one sea to the other free, and has maintained this freely and securely for more than half a century, placing thereby her territory and her authorities at the service of the commerce of the world; and this without taking into consideration that from its foundation the Republic, by means of legislative acts and various negotiations, has evinced the greatest desire to facilitate the opening of the isthmian canal, a fact which was one of the points of discussion Nin the Congress of the Republics of the Continent called by Bolivar in 1826.

“The United States have decided that no other Government ought to build the canal.” Such declaration, together with that which your excellency’s Government has also made, in the sense that the construction of that work could not be delayed and that they would not open the Nicaragua Canal, foreshadowed the policy which logically had as a result the disavowal of Colombia’s sovereignty on the Isthmus, of the treaty of 1846, and of the precepts of international law appertaining to the recognition of new States.

It was stated in the Hay-Pauncefote treaty that the canal could be constructed under the auspices of the United States, but no right is deduced from that for the construction of the work without the consent of the sovereign of the territory by a previous equitable arrangement in which should be taken into account the convenience of universal traffic and the interests of the sovereign. So much greater reason is there for this being so in the case of Colombia, who had not attempted in any manner to close the passage to universal traffic, but on the contrary had tried to facilitate it by means of various negotiations, the majority of which did not become effective from causes not under its control.

The offer made to the American minister by one of the highest men in official circles in Colombia in regard to approving the Herran-Hay treaty by legislative act, or by a new and friendly Congress, never took the shape of a government act; if it had taken such shape, the Administration would have fulfilled its engagements among them, the opportunity arising, that of trying by all legal means to secure the approval of Congress.

As I have already stated, the Colombian Government placed no importance in the notices in the press which announced the revolutionary movement because, as I declared in the Senate, such a movement was not to be feared while the treaty of 1846 was in force, and that the Colombian Government had absolute confidence that that treaty would be strictly adhered to by the United States. Under such circumstances the Department of Panama could not free itself without very powerful foreign aid.

A knowledge of the friendly relations and perfect understanding which has existed between the two Governments would lead to the supposition that the Government of the United States would have advised Colombia that, according to advices from its agents, a revolution to disintegrate the Republic was imminent in Panama, and that it would have taken measures to have its war ships in waters within easy reach of the Isthmus when the movement should break out.

Instead of that friendly action, it issued orders to the commanders of the Boston, Nashville, and Dixie, as follows:

“Maintain free and uninterrupted transit. If interruption is threatened by armed force, occupy line of railroad. Prevent landing of any armed force, either Government or insurgent, with hostile intent, at any point within 50 miles of Panama. Government force reported approaching Isthmus in vessels. Prevent their landing if in your judgment it would precipitate a conflict.”

These orders do not coincide with the precedents established by the North American Government which had never in previous disturbances prevented the landing of troops of the Colombian Government, nor their transport on the railroad, as is seen in the same orders transmitted in the message of December 7, and which were dictated in the years 1900, 1901, and 1902, in which it was only ordered that measures be taken to prevent, the interruption or endangering of the transit which might result by converting the line of the railroad into a theater of hostilities. These instructions were fulfilled by transporting the troops in one train and the arms in another, against which proceeding the Colombian legation in Washington protested on the ground that it was not in conformity with the stipulations of the treaty, and the protest was acquiesced in by the American Government.

In September, 1858, the Granadian minister, General Herran, and secretary of state, General Casey, agreed that thereafter when American forces had to be passed over the Isthmus they would be disarmed and as parties of ordinary persons, “without enjoying the exemptions customary when passing as troops through foreign territory, but that they would be subject to the territorial jurisdiction the same as other foreigners.” In 1885 the United States sent forces to Panama, and although the line of the railroad was defenseless, and one of the contending parties had adopted the extreme measure of imprisoning the American consul, the Government of the United States did not pretend to exercise there acts of authority or jurisdiction; a simple complaint from Mr. Becerra, Colombian minister, was sufficient for Secretary of State Mr. Bayard to give explanation for the detention of the incendiaries of Colon on the cruiser Galena and to order them to be turned over to the local authorities.

Doctor Concha, Colombian minister, in reporting a conference which took place in the Department of State on November 4, 1902, in reference to the negotiations of the canal treaty, states the following relative to the happenings on the Isthmus in September and October of that year:

“Mr. Hay referred directly and willingly to the attitude of Admiral Casey in those events, and stated that he had instructed the United States minister in Bogotá to signify to the minister for foreign affairs of Colombia the cordial friendship of the American Government, and the wish that this spirit might avoid every act or proceeding which could wound the Colombian dignity or sovereignty or menace their rights as an independent nation; that he had sent orders in this sense to Admiral Casey to conform his acts to that spirit of his Government, in that public dispatches said the events had changed the aspect of the Isthmus and to-day complete harmony reigned in that territory between the authorities of both countries.”

In my note of November 19, 1903, to your honorable legation I said:

“The recognition as a State by a foreign power of a Department which is trying to separate from the nation to which it belongs, does not imply nor legalize the intervention of such power in the conflict which the intended separatist may produce; therefore the Government of Colombia judges that, although the United States has in this emergency laid aside the compliance with the treaty of 1846, in which they are bound to guarantee the property and sovereignty of Colombia on the Isthmus, and supposing they persist in that attitude, it is to be at least hoped that they will remain neutral, will not prevent the submission, and will abstain from recognizing the rebels as belligerents.”

I quote the preceding paragraph in order to record that the Government of Colombia did not ask that the Government of the United States subdue the rebels, but only that it would not impede the landing of Colombia’s troops destined to subdue them.

The commander of the United States fleet on the 4th of November directed a note to the chief of the battalion “Tiradores” as follows:

“I have knowledge that the situation of affairs in Panama is such that a movement of the Colombian troops which are in Colon toward that place would bring about a conflict and endanger the free and uninterrupted transit of the Isthmus, which the Government of the United States is bound to maintain. I have the honor, therefore, to advise you that I have instructed the superintendent of the Panama Railroad, in Colon, not to transport on his line troops of the Government or the other party.

“Hoping that this action on my part will meet with your cordial approval, I have the honor to be,

“Very respectfully,

“John Hubbard,
Commander of the United States Fleet.”

According to the report of General Tobar, this order was only carried out with respect to the troops of the Government of Colombia. The commanding general of the army of Panama and other military men who were conveyed as prisoners from Panama to Colon by the railroad were guarded by some two hundred rebel soldiers, at whose service the said railroad has constantly been: in the meantime the superintendent refused to convey the battalion “Tiradores” from the second to the first of those towns, with the consent, it is clear, of Commander Hubbard, who, as has been seen in his note, had assumed the supreme authority over the military transit on the railroad.

In the declaration on November 6 before the military chief of the plaza of Cartagena by the colonel of the “Tiradores” it is stated that on the fourth and fifth of the same month troops and artillery from the American men-of-war were disembarked at Colon; that these troops were quartered in the offices of the railroad and that they constructed trenches; that having questioned the consul of the United States, the latter answered the colonel that he should withdraw his forces from the town in order that the consul might have the American troops reembark, and that one of the reasons which determined the return of the battalion to Cartagena was the threatening attitude of the officers and troops of the United States.

On November 3 Mr. Manuel Amador Guerrero, principal leader of the separatist disturbance, and now president of the so-called Republic of Panama, visited in his prison in Panama the general in chief of the army of the Atlantic, and stated to him, as is evident from the information given by the said chief to the ministry of war of November 20, 1903, which has since been published, that the events consummated the day before were the result of a plan maturely conceived, long discussed in Panama and in Washington, and carried out under the protection and guaranty of the Government of the United States, with whom he had personally just been dealing and from whom he had received $2,500,000 to be used in the first expenses of the new Republic, and also that there were already some American vessels in Colon to protect the revolutionary movement; on account of which all resistance would be useless, and the said general, for humanity’s sake, ought to order the battalion “Tiradores” to reembark.

Messrs. Tomas Arias and Frederick Boyd, who were members of the titular board of government, made analogous declarations to him.

Notice has been received in this ministry that Mr. Amador Guerrero has contradicted the statement of General Tobar, but it is not known that Messrs. Arias and Boyd have done so, either in reference to the statement of General Tobar or to the statement in the same sense made by General Amaya, chief of staff of the army of the Atlantic, who was also a prisoner in Panama; and thus by the opinion which must be inferred and which the second of the messages cast aside, some of the principal chiefs of the separatist movement are responsible.

Although from the explanations contained in the messages it seems that the presence of American vessels in isthmian waters had no object whatever in giving help to the revolutionary movement, it can not be doubted that the presence of those vessels encouraged those who conceived that movement and that the former acts of their commanders have given it formal proportions, because they have paralyzed the action of Colombia to subject the rebels.

That the Panamans wanted to go from the capital city to Colon to attack the Colombian troops to make them leave the town, is a purpose of which Commander Hubbard does not speak in his reports, and it only appears in an article addressed by a correspondent of the New York Evening Post; and if this did not take place, it may have been from lack of intention or from having considered it unnecessary, in view of the attitude assumed by the American forces to prevent Colombia from recovering the Isthmus, an attitude permanently maintained and which at last has been declared in this way: “It is much to be desired that from our side there should be no imprudent behavior which might encourage Colombia to persist in a war which can not result in her dominion over the Isthmus being restored to her, but which might cost much blood and suffering.” Only in the case that the United States should take charge, as they have, of the defense of the separatists could the war which Colombia would make with them fail to have as a result the restoration of her dominion over the Isthmus, as the superiority of the military resources of this Republic over those of the small Department of Panama is notorious.

The action of the Isthmians was not taken apparently in any way unanimous. In this point, as in others, the Government of the United States has been badly informed. Native citizens, the most important on the Isthmus, have not accepted the secession, among them Messrs. Jose Marcelino Hurtado, formerly diplomatic minister; Senator Juan B. Perez y Soto, Representative Oscar Teran, Mr. Belisario Porras, Mr. Carlos Vallarino, and Mr. Alexander V. Orillac. Dr. Pablo Arosemena, former secretary of state in Colombia and who was president of the intended convention, explained through the press that he was not a partisan of the secession movement, but he accepted it because he considered it irrevocable. On the evening of November 3 the people of Colon did not know that a rebellion was taking place in Panama, and the same holds good in the rest of the territory of the Isthmus. It appears that they have accepted the movement later on for the same reason that Doctor Arosemena accepted it.

Against the supposed unanimity of the revolutionary movement there is, furthermore, the antecedent that Isthmus of high position and in considerable numbers made it known through the press that their opinions were contrary to the approval of the Hay-Herran treaty; and several newspaper publications from the same city were of that opinion.

The Government of the United States declares that in recognizing the independence of Panama it acted against the general rule of not recognizing a new state as independent until it has shown that it is capable of maintaining its independence, and that said rule has its origin from the principle of nonintervention; but holds that its proceedings are justified by three reasons, namely: First, its treaty rights; second, its national interests and its security; third, the collective interests of civilization.

The said Government claims to derive its treaty rights from the part of article 35 of the treaty of 1846 which says:

“The Government of New Granada guarantees to the Government of the United States that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereinafter constructed, shall be open and free to the Government and citizens of the United States, and for the transportation of any articles of produce, manufactures, or merchandise, of lawful commerce, belonging to the citizens of the United States; that no other tolls or charges shall be levied or collected upon citizens of the United States, or their said merchandise thus passing over any road or canal that may be made by the Government of New Granada, or by the authority of the same, than is, under like circumstances, levied upon and collected from the Granadian citizens; that any lawful produce, manufactures, or merchandise belonging to citizens of the United States, thus passing from one sea to the other, in either direction, for the purpose of exportation to any other foreign country, shall not be liable to any import duties whatever; or, having paid such duties, they shall be entitled to drawback upon their exportation; nor shall the citizens of the United States be liable to any duties, tolls, or charges of any kind to which native citizens are not subjected for thus passing the said Isthmus.”

The American Government interprets the foregoing stipulation in the sense that if the treaty of 1846 did not bind New Granada, under its terms, to grant concessions for the construction of interoceanic means of communication, that was only because it was then believed that at no time those concessions might be denied, and that, as it was expressly stipulated that the United States, as a compensation for their onerous guaranty of the sovereignty of New Granada, would enjoy the right of free and speedy transit of any ways of communication which might be constructed, the clear intention of the treaty made it unnecessary, if not superfluous, to stipulate in words that the permission to construct any such means of communication should not be denied.

This interpretation differs from the generally admitted rules for the interpretation of public treaties. There is no authority for the assertion that a contract expresses what has not been set forth in it, and it is perfectly clear that what the Government of New Granada guaranteed to that of the United States was only the right of way or transit across the Isthmus of Panama, by any means of communication which existed or which might be opened in the future, and that there would not be imposed upon citizens of the United States nor upon their merchandise other charges or tolls for their transit over any road or canal which might be made by the Government of New Granada or with its authority, than those imposed upon citizens of New Granada. Consequently mention is specifically made of a canal which might be opened by New Granada (to-day Colombia) or with its authority, and nowhere is it established that the construction of that work should be the principal idea of the treaty, and much less that the Government of Colombia could not deny the privilege of its construction to the United States.

The interpretation given to this clause by the Government of the United States makes additions to the treaty in such a way that Colombia can not do less than declare that she did not contract the engagements which in this respect the American Government considers superfluous to express, and that said interpretation, on account of its being in every way unjust, initiates a system of deduction of inferred engagements which does not agree with international methods nor with the good will of the high contracting parties, nor with the rules universally accepted which make of public treaties the fountain and principal basis of the law of nations.

The destiny of the Isthmus for transit comes from its geographical position, and the Government of Colombia has been persistently for many years directing her efforts with the object of improving that route with means of rapid transport, such as railroads and the interoceanic canal, as I have already stated in the present note.

This Government having received advice that the Government of the United States had refused to allow Colombian troops to disembark on the Isthmus, I asked His Excellency Mr. Beaupré verbally to address in my name to his Government by cable the following questions:

• “1. If, the Government of the United States having war ships in Colon and Panama, it would not prevent the Colombian Government from disembarking troops and fighting in those ports and if necessary along the line of the railroad.
• “2. If, in case the Government of Colombia, through any circumstance whatever, should not be able to restrain the separatist movement, the United States Government would be disposed to cooperate with her in maintaining ownership and sovereignty of Colombia on the Isthmus in accordance with article 35 of the treaty of 1846.”

The suggested circumstance that the Colombian Government could not suppress the separatist movement was that the United States might hinder, in which case it is evident that it was the duty of the United States to suppress it according to the stipulations in the last part of article 35 of the treaty of 1846, which is complementary to the one before cited, and contains the compromise of the United States to guarantee the right and sovereignty of Colombia on the Isthmus of Panama.

The theory advanced as the second reason for making the recognition, that it was imposed by the supreme conditions of the interests and the security of the United States, is not founded on any principle of public right. Furthermore, if the carrying out of a treaty which obliges the opposite of recognizing the independence of a Department is contrary to the interests and security of one of the contracting parties, that one has the right to denounce it, but not to proceed in a sense adverse to its stipulations. If the United States, according to section 3 of article 35 of the treaty of 1846, had notified their wish to have it corrected so as to leave out the guaranty, Colombia, advised of the danger which threatened her, would have tried to evade it by means of other negotiations for the opening of the canal.

This agreement was an insurmountable impediment to the United States proceeding by exclusive reasons of interests and security; but even if it had not existed the proceeding which they adopted to prevent Colombia from making use of force to subject the rebellion can only be founded on supreme international domain, which, definitely, is that of conquest and finds itself in open contrast to the principles of liberty and autonomy, for which the great North American country appeared as the standard bearer in America.

The policy which tends to establish the practice that strong powers can modify the boundaries of nations for reasons of convenience or alleged necessities of territorial expansion has its foundation in the judgment that convenience and expansion are above justice.

The alleged necessity of constructing the canal is not so pressing that it may not admit of delay. To show this, I will mention article 24 of the Herran-Hay treaty:

“Article XXIV. The Government of the United States agrees to complete the construction of the preliminary works necessary, together with all the auxiliary works, in the shortest time possible; and within two years from the date of the exchange of ratification of this convention the main works of the canal proper shall be commenced, and it shall be opened to the traffic between the two oceans within twelve years after such period of two years. In case, however, that any difficulties or obstacles should arise in the construction of the canal which are at present impossible to foresee, in consideration of the good faith with which the Government of the United States shall have proceeded and the large amount of money expended so far on the works and the nature of the difficulties which may have arisen, the Government of Colombia will prolong the terms stipulated in this article up to twelve years more for the completion of the work of the canal. But in case the United States should at any time determine to make such canal practically a sea-level canal, then such period shall be extended for ten years further.”

A work which requires two years to commence it, twelve to construct it, twelve to finish it if difficulties should present themselves, and ten more if it is determined to make it a sea-level canal, a total thirty-six years, is not of such an urgent necessity that it should not admit the delay of some months while a new negotiation is being made with the true sovereign of the soil where it is to be constructed.

The report of the Senate committee read in the session of October 14 and which contains, among others, the statement that the negotiation for the opening of the canal should be postponed until the expiration of the prorogation granted to the French company on account of the contract with that company being in force, does not represent the opinion of that chamber, which did not consign the reasons or motives for its decision, and I can inform your excellency that on denying the project of authorization to which it refers, very probably it did so taking into consideration that the executive power has the power to make treaties by the Constitution; and that the proposed law did not exempt that power from the obligation of submitting the one made with the United States to the approval of the Congress.

Exercising that faculty of the Government, I addressed on September 8 to our chargé d’affaires in Washington the following cablegram:

“Tell the Department of State, confidentially, that whether the project presented to the Senate about new authorization treaty Panama Canal be adopted or not the Government of Colombia will propose to the American Government to renew negotiations upon a basis which it judges acceptable by the Congress of July next, the opinion of the present one being taken into consideration and the national opinion.”

There is no official act to show that the Government intended to declare or cause to be declared null the prorogation by which the French company was given until 1910 to finish the canal; and Congress not only did not dictate any act with that object, but the said Senate committee presented with its report a project of law which approved in all its parts the contract giving said prorogation. This project, unanimously approved in its first reading, did not become a law because Congress adjourned; however, it was shown that the opinion of said chamber was favorable to the validity of the prorogation.

The second of the messages expresses, in the third place, that the recognition of the Republic of Panama was an act justified by the interests of civilization.

Civilization represents the intellectual, moral, and material progress. From the two first have emerged the principles which rule the conduct of nations, without which humanity would live in perpetual wars. If on account of material interests those principles are postponed or forgotten, or public treaties are not observed, the fundamental bases of modern civilization are undermined and one is set back to ancient times, like those under the Caesars of the Roman Empire, when such practices took the form of dominion by means of conquests.

It is not to be believed that the North American people and their Government desire to lead a movement that could not be justified for their glory in the present case with Colombia, by the anticipation of some months in the commencement of the interoceanic way, which by its nature requires a long time to be opened and given to the public service; and which, carried on in accord with the true sovereign of the soil, would harmonize with the great interests of navigation and of commerce, as well as the principles of right, which constitute the principle of the progress of civilization.

The fact that several powers of Europe and America have followed the example of the United States in recognizing the independence of the so-called Republic of Panama arises, in the belief of this Government, not from the reason that that independence is so necessary for the civilization, in serving to anticipate for a short time the construction of the canal, but on account of the declaration which the United States themselves have made in order to support it, and so true is this that if the United States would withdraw such declaration and the troops with which the maintain it, those nations would look without surprise at the quick reincorporation of the Department of Panama in the Republic of Colombia and would also see that that nation is ready to facilitate by means of reasonable concessions the opening of the canal.

The Presidential opinion, which no disinterested and prudent observer would fail to understand, that Panama was fully justified when it separated from Colombia is in itself an act of intervention in the internal affairs of a foreign state; an act explained in another part of this message as exceptional, since the principle of nonintervention is the only true one; but that intervention, perfected in several ways, is not included in the cases which are admitted by international law. The behavior of a Government, no matter how censurable it may be (which Colombia does not admit respecting hers), as long as it does not cause any loss or threaten the rights of other sovereigns, does not give them any right of intervention. (Heffter, International Right of Europe, pp. 95–98, Berlin, 1873.)

The conduct of Colombia has neither endangered nor diminished any right acquired by the United States, which Government can not even give the reason why they were suffering or might suffer damages from motives of proximity.

The Isthmus of Panama was in peace until November 3, and it is very probable, almost certain, that the rebels would have accepted the arrangement proposed to them by General Reyes in Colon, and so evaded bloodshed, if the United States had not intervened from the first moment, not allowing the disembarkation of Colombian troops; so that they did not proceed in a way to allow even alleging any reasons of humanity for their intervention.

If, for the Government of the United States, the recognition of Panama as an independent Republic is an accomplished fact, and as such it considers it irrevocable, without stopping to show the illegitimacy of the theory of the accomplished facts when they are contrary to foreign right and to the engagements with third parties, I make the declaration that the recognition of the independence of the Colombian Department of Panama by the United States and other powers does not make void nor does it limit the rights of sovereignty of Colombia on the Isthmus of that name, and that this Republic does not admit, in principle, that that recognition is of an irrevocable character.

Gen. Rafael Reyes, minister on a special mission, presented, in the name of the Government and people of Colombia, on December 23 ultimo, an exposition of injuries to the Department of State. In the answer of His Excellency Mr. Hay to the minister’s note there are some opinions, in addition to those expressed in the messages, which I must also take into consideration, making in regard to them observations tending to the defense of the rights of this Republic.

He maintains that treaties, except when they deal with private rights, unless the contrary is stipulated, are binding for the contracting parties from the date of their being signed; and in that case the exchange of ratifications confirms the treaty from that date. “This rule,” he says, “necessarily implies that the two Governments, upon the negotiation of the treaty through their representatives duly authorized, bind themselves while waiting the ratification not only not to oppose the ratification thereof, but also not to do anything in violation of its stipulations.”

The theory maintained that treaties are obligatory, or that they come into force, in whole or in part, before they are ratified in conformity with the laws of the respective countries, is open to contradiction respecting the extension of the obligation attributed to Colombia by the Government of the United States. Wheaton in his International Law, first volume, page 239, expresses himself thus:

“The civil constitution of every particular state must determine in whom is vested the power of ratifying treaties negotiated and concluded with foreign powers, and so make them obligatory for the nation. In absolute monarchies it is the privilege of the sovereign himself to confirm the act of his plenipotentiary for its definite approval. In certain limited or constitutional monarchies the consent of the legislative power of the nation is in some circumstances demanded for this purpose. In some republics, as in the United States of America, the opinion and consent of the Senate are essential to empower the Chief Executive of the state with the compromising of the national honor in that form. In all these cases it is consequently an implicit condition when it is negotiated with foreign powers, that the treaties concluded by the Executive Government will be submitted for ratification in the manner prescribed by the fundamental laws of the State.”

In the Herran-Hay treaty the reservation that it should be ratified in conformity with the laws of the respective countries was expressly stated in Article XXVIII. The use of the necessary ratification, which dates from most ancient times; is the same in modern times; and if some doctrines of international law of the United States interprets in another way the precepts of its Constitution, that doctrine does not oblige other nations, who recognize the principle that “the constitution of each particular state determines in whom is vested the power of ratifying treaties negotiated and concluded with foreign powers and so make them obligatory for the nation.”

This principle is the one generally observed, and the one which is substantially adopted by the most accredited interpreters, as Vattel, Klüber. G. F. Martens Despagnet Vergé, and Pradier-Fodéré. The executive power in Colombia can not perfect international agreements because the constitution attributes to Congress the faculty of approving or disapproving public reaties.

The Government of this country not only did not oppose the approval of the treaty for the opening of the canal, but called Congress in extraordinary sessions for the main purpose of taking it into consideration. The Government presented the treaty to the Senate in the first days of the sessions. The rule of that body is that in the first reading the convenience or inconvenience to legislate on the matter of the respective project of law should be discussed. On the first reading of the treaty presented for approval I spoke extensively to impress the great importance of the negotiation and to refute the charges which had been made against the Government on account of having negotiated it. My speech, which is printed, concludes with this paragraph:

“His excellency the vice-president of the Republic has requested me to give to the honorable Senators the explanations which I have just presented. They have shown that the initiation of the treaty arose from a grand conception; that the negotiations were conducted with ability and prudence, and that if the conditions of the agreement do not meet the wishes of the Colombian people in a more ample way, it is because the other high contracting party did not agree to the proposition of improving them. In one word that the Government has behaved in this transcendental affair with the loftiest views and inspired by the most ardent patriotism.”

This speech constitutes an irrefutable proof that the Government not only did not oppose the approval of the treaty, but that the treaty was explained to the Senate in conformity with the object of the first debate on all projects of law, and I remember with regret that I called attention to the memorandum and to the communication which Mr. Beaupré presented to this ministry notifying it of the bad effect which the disapproval of the treaty would produce in the relations between the two countries, and that the modifications introduced here would be considered as a violation of what had been agreed upon. The Senate rejected the treaty in its first reading; and therefore the Government had no opportunity to enter into the explanations of its stipulations. There is, therefore, no contradiction of any kind in the conduct of the two Governments in respect to the treaty.

On June 10, 1903, His Excellency Mr. Beaupré addressed to this ministry a note in which he gave minute account of the objections which his Government had to the rote which the ministry of Hacienda sent to the New Panama Canal Company and to the Panama Railroad Company, stating that in order to transfer their contracts to the United States they needed permission of the Columbian Government.

In my answer to the communication of Mr. Beaupré, dated the 27th of the same month, I called his attention to the dates of the notes which the ministry of Hacienda addressed to the companies, which are December 25 and 27, 1902, respectively; in the meantime that the one of the treaty signed by the ministers in Washington for the opening of the Interoceanic Canal was January 22, 1903. Comparing these dates it is seen that the exaction to the companies was nearly a month previous to the signing of the treaty. After this having been signed the ministry did not occupy itself again with the matter, and as the explanation which I made on that point to the legation preceded the separatist movement by four months and my note was published very soon, it is obvious that the said exaction ought not to have been one of the causes which produced it nor of those which can excuse it.

The Government of Colombia did not discover suddenly, after the convention was signed, that it contained stipulations contrary to the sovereignty of the Republic in the zone destined for the construction of the canal. From the time that the Government of the United States had presented its project, the Government of Colombia gave notice that it contained such stipulations, and notwithstanding, ordered the chargé d’affaires in Washington to sign it, with the view of making easy and even of securing the execution of the great work, in the hope that such an important end would induce Congress to make declarations or take measures which would remedy the constitutional defects, which, in their judgment, the agreement had, knowing that the Government of the United States had not seen fit to accept it in any other terms.

The simple change of names of a country does not of itself modify its frontiers, and even less, if, as has happened in this country since it took the name of New Granada in November, 1831, it has fixed them in its respective constitutions, in which the Department of Panama has always been expressly mentioned, haying had representatives in the bodies which have framed those constitutions.

If, as His Excellency Mr. Fish said in a note of May 27, 1871, the principal object of New Granada (to-day Colombia) in negotiating the treaty was, as is believed, the conservation of her sovereignty against exterior attacks, the recognition which the Government of your excellency has made of the independence of Panama creates a new legal situation which obliges it to prevent the so-called new Republic from making attacks against the sovereignty and property of Colombia on the Isthmus, because in virtue of such a recognition, those attacks are exterior according to the opinion of the United States; but if, instead of preventing those attacks, it favors them until the destruction of the sovereignty and property of Colombia in that section, the proceeding can not be more contrary to the word, spirit, and interpretation which Mr. Fish gave to the treaty and which the present Government of the United States gives in the mention it makes of the passage of the note of the honorable Secretary of State.

From the preceding observation the inevitable logical conclusion is deduced that the United States can not assume toward Panama the obligations of the treaty of 1846 since the dominion and sovereignty of the Department over itself, and those of the Republic of Colombia over the Department of Panama simultaneously, would exclude one another; for which reason, the Isthmus has not acquired title to enjoy the rights nor is subject to the obligations of the treaty.

On the other hand, Hall’s doctrine is not applicable to the point in question, because Colombia had not contracted the local obligation of allowing to the United States the construction of the canal, a work which is in no way related to the adjustment of a river bed, which he cites as an example. For the same reason the opinion of Rivier is not applicable either, because article 35 of the treaty of 1846 does not deal with limits, nor running water, nor ways of communication which did not exist then nor at present.

The interpretation given to the agreement by your excellency’s Government does not agree with these doctrines, for it can not carry out with the de facto government of the Isthmus the duties which it contracted with the Republic of Colombia.

The Government of Colombia differs in opinion with the Government of the United States as to its claims being of a purely political nature, and judges that special circumstances place them among those which come under the dominion of judicial decisions.

The claims of Colombia are founded:

First. On the violation of the treaty of 1846 by the Government of the United States.

According to the doctrine explained by Piédelièvre in his International Public Law, second volume, page 76, questions of this kind are of judicial character, susceptible of being decided by arbitration, all the more so when others originate from them, such as that of the great direct damages caused to this Republic, which is undeniably of the same nature.

Second. In the violation of the neutrality rules established by international law.

Concerning claims founded on violations of neutrality, the United States themselves contributed in a decisive manner the precedent of which I will make mention. They established the claims known as “Alabama claims,” in which Great Britain, represented by its Government, had neglected to carry out the obligations of neutrality which had been placed upon it by international law to such a point that it had given to the United States an ample and just cause for war.

Lord Russell denied the principle of the claims, and refused peremptorily the proposition of arbitration in 1865, but Mr. Seward persevered in maintaining it as prudent and honorable for the two Governments. At the initiation of the English Government the negotiations were renewed, and on May 8, 1871, the treaty was adjusted by which it was agreed to submit said claims to an arbitration tribunal.

Article 6 of this agreement stated that the arbitrators should, in the questions submitted them, be guided by three rules relative to the neutrality, which the Government of the United States proposed and sustained, and which served as a model, notwithstanding the declaration which the same article contains, that “Her Britannic Majesty had requested her high commissioners and envoys extraordinary to declare that her Government could not admit that the preceding rules be considered as an exposition of the principles of international law in force at the moment in which the claims of the United States mentioned in article 1 were set forth; but that, in order to give a proof of its wish to strengthen the friendly relations between the two countries and to take useful measures for the future, Her Majesty’s Government consented that when the questions which those claims have caused shall be decided the arbitrators should consider that the English Government has not intended to withdraw from the principles mentioned in the preceding rules.”

The high contracting parties bound themselves to observe those rules in their mutual claims in the future, to place them in the knowledge of other maritime powers and to invite them to adhere to them.

The doctrine comprised in the three rules received the very important indorsement of a corporation of representative scientific men. The Institute of International Law approved the resolution which I copy:

“The three rules of the treaty of Washington of May 8, 1871, are only the application of this principle recognized by international law: that the neutral state, wishing to remain in peace and friendship with the belligerents and to enjoy the rights of neutrality, has also the duty to abstain from taking any part whatever in the war there by granting military help to one of the belligerents or to both of them, and to keep watch in order that there should not be committed within its territory any acts by anybody which consitute a cooperation in the war.”

The Government of Colombia, relying in such a notorious and in all respects worthy precedent, invokes the very authority of the United States and that of the Institute of International Law in maintaining that violations of neutrality do come under the dominion of arbitration judgments.

Third. In the celebration of a treaty with the titular Republic of Panama, for the opening of the Interoceanic Canal, notwithstanding that there is in force a treaty of peace, friendship, navigation, and commerce between New Granada (to-day Colombia) and the United States of America.

The Government of your honor gives an interpretation to article 35 of that treaty which the Government of Colombia judges contrary to the rules of interpretation generally admitted; to which point may be applied the arbitration proceeding which Klüber gives in his Law of Nations, page 235, thus: “When a public treaty presents a doubtful sense, it can not receive authentic interpretation except by a declaration of the contracting parties or of those to whose arbitration they have appealed. The same preliminary question to know if the sense is doubtful, can only be decided by a similar convention.”

In the present case the first question arising is the preliminary one as to the doubtful sense of the treaty, notwithstanding that the opinion of Colombia is that its clearness is complete, as understood by both Governments, an interpretation from which the United States have now departed.

The present chargé of the Colombian legation in Washington has informed me by cable that the Senate of the United States has approved the treaty with Panama for the opening of the canal. That treaty, as I have already expressed it, contains in its first clause the engagement of the United States to maintain the independence of Panama, a clause, which is, by itself, a declaration before the world that Panama can not subsist independent of Colombia without military aid from the Government of your Excellency.

As said treaty is in opposition with that of 1846, in the supposition, admitted by the Government of your Excellency and denied by Colombia, that Panama should be a member of international society, the coexistence of the two agreements determines the application of the doctrine which Vattel states that “contrary treaties to those in existence can not be made” and which G. F. Martens in his Law of Nations gives, page 167, first volume, in these terms: “Of two treaties concluded with different nations, if they are incompatible, the oldest ought to be preferred, save the indemnification which ought to be given to the other nation if the collision can be foreseen and if it can be presumed that the contracting party ignores it.” If the Isthums of Panama were really a republic, the United States, who were not ignorant of the clash, would be in position, perhaps, of having to grant an indemnity, because they can not lawfully evade the fulfilling of the treaty of 1846.

If they do not recognize the justice of the preceding doctrine, they would inaugurate the precedent that a nation, making itself judge in its own cause, can withdraw from carrying out treaties by only making an agreement in a different sense with a rebel section of the other contracting country or with a third power; a practice which would be the beginning of the end of the guaranty of public treaties as a safeguard to right.

The Government of Colombia, considering that the treaty for the opening of the canal which the United States have made with the government de facto established in the Colombian Department of Panama, is in violation of the one celebrated with this Republic in 1846, protests against the validity of the first and claims the observance of the second, especially in the part in which said States bind themselves to guarantee the property and sovereignty of Colombia in the Isthmus of Panama.

I have had the honor to refer to the Presidential messages and to the said note of His Excellency Mr. Hay, who in two later notes addressed to General Reyes confirmed the declaration of his Government and his own arguments. The approval of the treaty with Panama by the Senate, and the ratification and exchange of that document were acts subsequent to the date on which that diplomatic agent left the United States. The observations which he made strengthen in a decisive manner the conclusion that it would be honorable for both parties to adopt an equitable and conciliatory way for the solution of their differences, which would be in true harmony with the wish, many times manifested by the Government of the United States, not to cause any damage to this Republic.

I have the honor, furthermore, to express thanks for the very important offer which the North American Government presents of their good offices to make an arrangement between Colombia and Panama, an offer made doubtless in the belief that this Government would accept as decisive the situation created by the separating rebellion.

Once more I renew, etc.,

Luis Carlos Rico.

1. Mistake in original.