Mr. Hay to Mr. de Obaldía.

My Dear Mr. Minister: I have the honor to acknowledge receipt of the two communications, dated, the 11th instant, in which you submit for my consideration certain observations regarding the interpretation of passages in the Isthmian canal treaty which your Government regards as obscure.

[Page 608]

Before making official response to the matters presented therein, I venture to inquire whether your present communications were written in the light of the note from Señor Bunau-Varilla, dated January 19 last, on the subject of the interpretation of certain passages of the treaty. For your greater convenience I beg to inclose a copy of that note herewith.

I am, etc.,

John Hay.

Mr. Varilla to Mr. Hay.

Sir: After the conversation I had the honor to have with you to-day on the amendments to the treaty of the 18th of November, which the press reports as having been adopted by the Senate Committee of Foreign Affairs, I have been led to think that they bore more on questions of reaction than on questions of principles.

As these amendments have been inspired only by the legitimate desire of making the text clearer, there might be found some way to obtain this result without going through the course of amending the treaty, with all the delays consequent upon such a procedure, at a time when the enemies of the treaty can take advantage of them to precipitate war on the Isthmus as a supreme weapon against the construction of the canal and the final realization of the treaty which insures it.

The most simple of the ways which can be devised to clear the text of a convention is for the plenipotentiaries to express what was the exact sense they attributed to said text.

I do not hesitate, sir, to give you in my name and in the name of my Government, the following explanations on the meaning of the clauses which have not been deemed sufficiently outlined by the committee of the Senate:

first. harbors adjacent to the cities of panama and colon.

The harbors adjacent to the cities of Panama and Colon (adjacent comes from ad jacens: lying at the side of) are, in my understanding, the harbors in contact of said cities and putting them into communication with the sea.

These harbors are completely separated from and independent of the harbors of the canal, of the harbors situated at its two entrances and which ships going-through the canal will have to use.

The harbor at the Colon end of the canal is an interior harbor made by dredging in the bay of Fox River, adjacent to the city of Christopher Columbus, and protected by a breakwater.

The harbor adjacent to the city of Colon is constituted by a series of wharves built in the open sea without any artificial shelter.

A ship lying in the Colon harbor and leaving it to go into the canal harbor will have first to go into the open sea and then pass the breakwater which protects the entrance of the canal harbor.

At Panama the canal harbor is also an interior harbor situated at La Boca, several miles from the wharf, which forms the Panama harbor, a wharf built in open sea like those of Colon. The very same thing may be said of the Panama as of the Colon harbors. Both are local harbors, strictly limited to the service of the respective townships and out of the way of the canal and of its approaches to its entrance.

There is not a shadow of probability that the harbor adjacent either to Panama or to Colon will ever be used for anything but for the local trade of the town, and therefore the United States will never necessitate to do anything in relation to the canal with any part of any of them.

But even supposing the impossible, supposing that an unforeseen event renders it necessary for the United States to do something in either harbor. I understand that the Republic of Panama would not have, a shadow of objection to such a course as we are bound by the Article II of the treaty, which stipulates that “The Republic of Panama grants to the United States in perpetuity the [Page 609] use, occupation, and control of any other lands and waters outside of the zone which may be necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the canal.”

The towns of Panama and Colon and their adjacent harbors being not included in the zone are outside of it and, therefore, the United States are at liberty to use, occupy, and control any land in the town, any water in the harbors for anything necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the canal.

Any amendment modifying these extensive faculties could give authority, but for something that is not necessary or convenient, either for the construction or for the maintenance or for the operation or for the sanitation or for the protection of the canal. Any such authority given to the United States would upset the economy of the whole treaty, which is that the United States will have all they need for the canal and nothing more.

second. sanitation.

I understand that the amendment on this point is designed to give more immediate authority to the United States to enforce its sanitary regulations without waiting a reasonable time.

It has always been my understanding, and I express rigorously the understanding of the Government of Panama, that in such a question the failure to comply with the sanitary ordinances of the United States gives instantaneously to the United States the right to enforce them.

In this case the reasonable space of time to wait is no time at all, as in all cases where the preservation of life depends upon prompt action.

In the question of sanitation the stricter the ordinances may be the quicker they will be enforced by the United States, the happier will be the Government of Panama, if it fails to be absolutely adequate to its task.

third. limitation of towns.

I understand that the expression of “the cities of Panama and Colon” does not appear to the committee of the Senate to sufficiently define the space which remains outside of the zone.

In my conception the expression “cities of Panama and Colon” corresponds to the actual space covered by the two actual agglomerations of houses, and can not be understood as referring to any administrative definition covering a theoretical surface.

I consider that the United States are not bound to give one inch outside of the actual surface covered by the agglomerations in both cases, and that no protest can be raised if it does not allow a suburban space to be added to the actual surface for the ulterior development of the towns.

At the same time I consider it probable that the United States will find it to be to the interest of both parties to give to the Republic of Panama certain surface adjacent to the towns for their ulterior expansion.

The determination of these surfaces is, in my mind, entirely left to the judgment of the United States, and can not be asked for as resulting from a right by the Panama Government, because in the intentions of the authors of the treaty the cities were considered as actual agglomerations and not as administrative and theoretical conceptions unknown to both plenipotentiaries.

I am, etc.,