Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part I

The Colombian Minister to the Secretary of State.

The Rochambeau,
Washington, April 6, 1906.

Sir: Both your favor of the 10th of last February and the note of the 12th, correcting mistakes as to dates made in the former and signed by Mr. Adee, were received at this legation in due time.

The nature and importance of the matter dealt with in this correspondence compel me once again to draw your kind attention, and through you that of the President and his advisers, to the pending difficulty between my country and the United States. I do so the more gladly because jovly communication contains new points which seem to open the way for an honorable settlement of my country’s claim. I dare to hope, therefore, that my present communication will accomplish this happy result, following, as it does, the line of your suggestion, and removing, as I feel confident, certain misconceptions which apparently still exist, notwithstanding the “careful and protracted consideration” which you inform me was given to my former one by the President and his constitutional advisers, and by yourself.

At the outset, allow me to say I am sorry to learn that the President and his advisers have concluded from my note that I meant to cast aspersions upon the honor and good faith of the United States. An honorable settlement of a controversy, such as I suggested, can not with reason be proposed to one considered as lacking in honor and good faith. My purpose was to state—and I thought I had made it perfectly plain—that the honor and good faith of the United States could not possibly be impaired by accepting either of the propositions suggested by me.

It is my purpose to consider in this communication only facts about which there is no question, and to leave out of thought entirely all matters about which there may be an erroneous opinion, either in the United States or in Colombia. There can in this case be no possible ground for supposing that I mean to cast aspersions upon the honor of the United States.

The particular claim of Colombia has been stated several times in the various communications from my country, but not so definitely perhaps as might be desired. The very nature of the claim itself prevents this. I am availing myself, however, of the wise suggestion contained in your communication, and before proceeding to a consideration of the facts on which the claim of Colombia is based, and of the possible methods of its adjustment in a way honorable to both our countries, I will now make as definite and distinct a statement of Colombia’s claim as the nature of the damage inflicted on her will permit.

As a result of certain acts admitted to have been done by the United States, and which have heretofore been made a part of the public records of the United States, one of Colombia’s members—the Department of Panama—has been cut off or severed from her body and erected into what the United States calls and has recognized as an independent nation. The circumstances under which this was done, in view of the treaty of 1846 between the United States and Colombia, and in view of certain principles of international law to which the United States has assented, obligate the United States to compensate Colombia for this loss, in so far as money can compensate for such a loss.

To facilitate our arriving at an agreement as to the justice of this my country’s claim, I wish to review with the President and his constitutional advisers the events leading up thereto—events which are well known, but which must be carefully and connectedly considered in order that we may see clearly what justice demands.

As has been well said in the correspondence issuing from the Department of State of the United States, Providence seems to have designed the Isthmus of Panama as a highway for mankind between the two great oceans which lave the eastern and western shores of our continent.

During the great upheaval which freed the American continents from the political errors which had fastened themselves on Europe, the people of the United States introduced into human government the true political principles. Almost immediately thereafter Colombia founded her nationality, and the territory of Panama became a part of Colombia’s body. It was but natural that Colombia and the United States should desire to carry out the designs of Providence as respects Panama, and that an agreement should be concluded between them, with a view (1) to insure the use of the Isthmus of Panama as a highway, open at all times to the people of the United States, and (2) to preserve and maintain forever the possession of this Isthmus by Colombia.

This having been accomplished by the treaty of 1846, various efforts were made by Colombia to improve the method of transit across the Isthmus, such as granting to an American company a franchise for the construction of the Panama Railroad. When this communication was deemed insufficient, Colombia negotiated several contracts for the construction of the Panama Canal, and later granted extensions of time to the concessionaries of the work. Among these efforts to improve the transit across the Isthmus must be mentioned the negotiations which Colombia entered into with the United States in 1869 for the conclusion of a treaty under which the United States should construct there a ship canal. The Senate of the United States failed and refused to ratify this treaty, signed by the Presidents of Colombia and of the United States, and duly ratified by the Colombian Congress.

The hope of my country, and indeed of the whole world, was thus disappointed by the act of the United States Senate; but this hope was by no means destroyed. It was inevitable that in the course of time the Isthmus of Panama should be devoted “to the use for which Providence seemed to have designed it,” and in the presence of difficulties encountered by the French company in completing this work negotiations were renewed with a view to placing the United States in a position to carry out the great enterprise. After much effort the treaty of the 22d January, 1903, known as the Herran-Hay treaty, was agreed upon by the Presidents of the two countries, and then ratified by the United States Senate; but it failed to obtain the approval of the Colombian Congress, thus meeting with the same fate which befell the treaty of 1869, with a reversal of the situation, however, in that the Colombian Congress, instead of the United States, caused the failure at this time.

It is necessary that I should allude here to some of the causes which contributed to the failure or defeat of the treaty of January 22, 1903.

The United States, by an act commonly called the “Spooner Act,” greatly increased the difficulties inherent in the negotiation of treaties by governments whose constitutions require legislative approval of every treaty negotiated by the executive department. This Spooner Act instructed the President of the United States to proceed with the construction of an isthmian canal by the Nicaragua route unless he could secure from Colombia within defined time the right to construct the canal through the Isthmus of Panama upon terms satisfactory to the United States.

Perhaps it is not proper for me to inquire into the underlying reasons of this act, so I only say incidentally that after its passage the United States received from the Panama Canal Company, at the price of $40,000,000, property for which that company had previously demanded $150,000,000. But whatever its motives, this act necessitated the approval of the Herran-Hay treaty by the Colombian Congress without the least amendment and within a specified time or this new attempt to provide for the construction of the canal by the United States would be abortive, unless, indeed, the Spooner Act should be amended or repealed by the United States.

The minister of the United States resident at Bogota was not unmindful of this effect of the Spooner Act, for he notifies the Government of Colombia that the Herran-Hay treaty had to be approved by the Colombian Congress immediately and without the least amendment. If the Spooner Act had not been on the statute books of the United States, the minister of the United States at Bogotá would have had no ground on which to stand while making this declaration, even had it been made in the most friendly and judicious manner, because the constitution of Colombia, as well as that of the United States, contemplates the amendment, by the legislative branch of the Government, of any treaty previously negotiated by the executive department before it can become operative, in case an amendment seems desirable in the judgment of the legislature. While it is true that the Spooner Act did not, and could not, abrogate the constitution of Colombia in any particular, still, in its practical operation, this act of the United States prevented the proper exercise of the constitutional right and duty of every member of the Colombian Congress to propose any amendment which might seem to him advisable, in order that the interests and welfare of Colombia might be perfectly protected in the treaty granting this important concession. This arose from the fact that the date fixed by the Spooner Act for proceeding to construct the canal by the way of Nicaragua was so near at hand when the Herran-Hay treaty came up for discussion in the Colombian Congress that there was no possibility of bringing the United States Senate and the Colombian Congress into agreement upon any amendment to that treaty which might be suggested by the Colombian Congress, even if the Presidents of Colombia and of the United States should have given assent to the same.

It is manifest, therefore, that the Spooner Act greatly increased the difficulties necessarily involved in the negotiation of a treaty between governments constituted as are those of Colombia and the United States, in a matter of such magnitude, large even for so great a nation as the United States.

Here, then, was the situation in August, 1903. After half a century of desire by Colombia that there should be a canal through the Isthmus of Panama, constructed by the United States under a concession from Colombia, the United States was still without authority to accomplish this great work.

• First, because the constitution of Colombia and that of the United States alike require legislative approval of treaties negotiated by the executive departments of the Government. But for this difficulty the efforts of our two countries would before now have resulted in the construction of the canal through Panama by the United States under a concession from Colombia.
• Second, because of the refusal of the United States Senate to ratify the treaty of 1869.
• Third, because the Colombian Congress did not ratify the Herran-Hay treaty, under conditions whose difficulties were increased by the act of the United States necessitating ratification of this treaty without the least amendment as soon as it came before the Colombian Congress.

The adjournment of the Colombian Congress, after its refusal to ratify the Herran-Hay treaty, brought the Executive of the United States face to face with the Spooner Act, and seemed to necessitate the construction of the canal through Nicaragua, which was considered the wrong route, or else the securing of an amendment to this act in order that the United States might continue negotiations with Colombia.

Confronted by this situation, the President of the United States was formulating in a message to Congress the thought that there did or should exist some means whereby the United States could dedicate the Isthmus of Panama to the use most necessary for the general welfare of the people of all nations; that is, for an interoceanic canal—a sort of international eminent domain, perhaps.

Colombia does not profess this doctrine, and does not see how it can be practiced in international affairs prior to the establishment of an authority superior to the sovereign nations in whose name it could be invoked. The mere fact, however, that the President of the United States was formulating the thought of finding some way to dedicate the Isthmus to canal purposes, other than by agreement upon the terms and price of concession with the sovereign having title to the same, seems to call for a pause, in this recital of events, long enough to remark that what subsequently happened was very like a concrete application of this doctrine to Colombia, but without compensation for the territory taken, a so-called “new nation,” which was preserved from the day of its birth, and guaranteed permanently in its life by the powerful arm of the United States, serving as the means, in the absence of an international body having proper authority.

While the President of the United States was at work upon this thought of some means of “dedicating the Isthmus of Panama to the use for which Providence seems to have designed it,” other than by treaty with Colombia, the independence of Panama was declared. The executive department of the United States Government immediately issued orders to the United States Navy to prevent the landing of any Colombian troops in Panama—Colombia’s own territory—with a view to the reduction of Panama to submission. The United States Navy obeyed the instructions thus given by the executive department of the United States Government. The only possible way for a Colombian army to reach Panama was by water, owing to the topography of Panama. All the waterway between Colombia and Panama was occupied by war ships of the United States Navy. It was impossible, therefore, for Colombia to reach Panama with an armed force, because of the presence and action of the war vessels of the United States. Consequently the effect of this lifting up of the powerful hand of the United States was to prevent Colombia from maintaining her sovereignty over Panama, and thus Panama was severed from the body of Colombia.

The action which brought about this result was taken by the executive department of the United States Government, on the supposition that it was not in violation of any principles of international law by which the United States had bound itself to act, and was not contrary to the provisions of the treaty of 1846, then in force between Colombia and the United States. On the contrary, it was asserted by the United States that this action was lawful and necessary for the faithful performance of the duties imposed upon the United States by the treaty of 1846, and, indeed, was demanded in order to promote the general welfare not only of the people of both North and South America, but of all civilized nations.

Colombia does not for a moment lose sight of the fact that during a long period the United States has shared with her in the desire to see a canal constructed through Panama for the promotion of the general welfare of all nations, nor does she overlook the fact that there were special reasons why it would be of particular value to the United States to have this canal constructed and operated by the United States. Disregarding the particular interests of the United States for constructing and operating the canal, and looking solely to the promotion of the general welfare of all nations by the timely construction of the canal at the proper place and in the proper way, it is apparent that the rights of Colombia—the sovereign of Panama—should be carefully respected in securing the concession for the canal; for only in this way could the canal be constructed so as to promote the general interest of all nations without doing an injury to any nation. Without in any way reflecting upon the motives of the United States in the course which was pursued when the independence of Panama was declared, it is proper to inquire whether the executive department of the United States Government was correct in its belief that it had a right to take the action which it is admitted was taken after the declaration of the independence of Panama, and which prevented Colombia from maintaining her sovereignty over the Isthmus; also whether the acts performed by the United States were contrary to the obligations which the United States was under by reason of the provisions in the treaty of 1846, or by reason of certain principles of international law which the United States has declared as binding upon nations and to the observation of which it has held other nations.

When the independence of Panama was declared the treaty of 1846 between Colombia and the United States was in full force, and our two countries are and ever have been in perfect accord upon this point, namely: That this treaty bound the United States to preserve Colombia’s sovereignty over Panama against menace or destruction from foreign nations.

Upon the declaration of independence of Panama a grave question arose, namely: Did the treaty of 1846 bind the United States to preserve Colombia’s sovereignty over Panama against menace from every danger whatsoever, regardless of its origin, even from internal violence, rebellion, or revolution, or at least to take” no action that would hinder Colombia in such case? Colombia, in the face of the Panama crisis, called upon the United States, as an obligation imposed by the treaty of 1846, to take no steps that would embarrass her suppressing the rebellion and maintaining her sovereignty over the Isthmus. The United States, on the other hand, without an exchange of one word with Colombia on this subject, announced an interpretation of the treaty of 1846 not theretofore formulated—that is, that Colombia, in whose behalf the protection clause in this treaty was inserted, had granted to the United States the right to take steps which would prevent Colombia from suppressing within her own territory a rebellion which, if successful, would destroy her sovereignty over the Isthmus of Panama.

Colombia declares that the United States has in this respect misinterpreted the treaty of 1846.

It is an admitted fact that, under this construction of the treaty of 1846, the United States has so acted as to cause the loss of Panama to Colombia. Thus, by the admitted acts of the United States, Colombia has been deprived of that very member of her body which the United States had agreed to preserve to her forever.

If the acts of the United States were lawful and right, this loss must fall upon Colombia. If, on the other hand, this loss was wrongfully occasioned by acts of the United States done in violation of the provisions of the treaty by which the United States has obligated itself, or in violation of principles of international law to which the United States has assented, then the United States is lawfully bound to compensate Colombia for the damage thus done to her.

The United States formulated the construction of the treaty of 1846, by which this loss was occasioned to Colombia in the face of a great emergency, when it appeared to the United States that any other course would cause the permanent loss of all hope of locating the Isthmian Canal at the proper place, and would “frustrate forever” the policy in regard to the Isthmus of Panama to which both of our countries had long adhered, and which was for the welfare of the people of all nations. Without emphasizing the fact, I desire to state in passing that the Government of the United States took too gloomy a view of the situation. There is higher authority than Abraham Lincoln, one of the great Presidents of the United States, for believing that “nothing is settled till it is settled right,” and therefore both Colombia and the United States could have rested in the conviction that a firm adherence to the principles involved in due time would have brought our Governments into agreement upon the terms of a treaty for the construction of a canal through Panama, despite any appearance to the contrary. The very secession of Panama altered the conditions in Colombia to such an extent that the United States would have received the canal concession from Colombia if the United States had only remained inactive while Colombia was reducing Panama to submission. But leaving this entirely out of view, as not being a matter of accomplished fact, the condition to-day is this: The canal concession has been secured by the United States, and that member of my country’s body which the United States had agreed to preserve to Colombia forever has been lost, and this by the act of the United States, done under a construction of the treaty of 1846 not heretofore announced, and formulated by the United States in the face of this emergency. In the clear light of the present day, and freed from fear of losing the canal concession, the United States can be expected to see that the people and the Government of Colombia never agreed by the treaty of 1846 that the United States, while complying with its terms, might lawfully cause the loss to Colombia of the very thing for which Colombia entered into that treaty.

The treaty could not possibly give the United States any such right unless the mind of Colombia and of the United States came into agreement upon that point. Is it possible to believe that any national entity would ever enter into an agreement with another for the preservation of a member of its own body, and by the very terms of the agreement authorize the severance of that member by the act of the party that was binding itself to preserve said member?

Certainly the United States, on reconsideration of this matter in the light of these facts, can see that Colombia never agreed by the treaty of 1846 that the United States might lawfully commit such acts, under the provisions of that treaty, as to cause the loss to Colombia of her sovereignty over the Isthmus of Panama. When the United States does see this, it will recognize its duty to compensate Colombia for the loss occasioned by its admitted acts done under a misconception of the rights supposed—in an emergency—to have arisen from the treaty of 1846.

The damage done to Colombia by admitted and published acts of the United States is the value of the Department of Panama. The amount of damage thus caused to Colombia and for which the United States is lawfully responsible has not been stated in exact figures, for the reason that the exact amount can not easily be stated. The lost member was very valuable, being the strategic point of the whole Western Hemisphere. Liability for this loss being conceded by the United States, the estimation of the amount of damage could be either by direct negotiation or by a committee of experts appointed by our two Governments.

If the United States desires, I can submit an amount as approximating the value of the lost member of Colombia, upon the payment of which my country would feel compensated, in so far as money can compensate for such a loss. Or we can now proceed to the appointment of a joint commission, charged with the duty of determining in justice and in equity the amount of compensation to which Colombia is entitled from the United States by virtue of this loss; that is to say, the value of Panama, including not only the value of territory but that of the railroad, of the contract with the French company, and so forth.

Though the acts of the United States which severed Panama from the body of Colombia were done by the executive department of the United States Government, the Senate of the United States, as you inform me, subsequently ratified a treaty which the President and the Department of State had negotiated with Panama, whereby the independence of Panama was guaranteed by the United States, and whereby the United States received from Panama a concession to construct a canal through Panama; and, still later, the House of Representatives of the United States joined with the Senate of the United States in making an appropriation of money to be expended in Panama under a canal concession granted to the United States by Panama as an independent nation. By the act of the Senate the severance of Panama from Colombia is made permanent, to the extent that the United States can by its act accomplish this, and the state of things thus created has been accepted by joint action of the Senate and House of Representatives of the United States. The Panama incident may seem, therefore, to be closed, but this is not true, at least so far as Colombia is concerned, and can not be closed until Colombia is compensated or has an opportunity to plead her cause before an impartial court of arbitration.

Having acted in an emergency, when it appeared to the United States that a work most necessary for the general welfare of the whole world was in jeopardy, and in such a way as to insure the execution of this work without delay and at a place and upon terms entirely satisfactory to the Government of the United States, it is but natural that the executive department of the United States Government and all the members of the Congress of the United States who were called upon to take part in this action should consider carefully, in the light of all the facts which bear upon the history of the relations of our two Governments in regard to Panama, whether in this emergency any damage was done which the United States ought to repair, according to the highest sense of justice and right.

As the question of impairing the honor of the United States has been brought into discussion, I may be permitted to remark that the honor of every act is coeval with the act itself. It is, therefore, impossible for the honor of an individual or of a nation to be tarnished by an agreement to do what is eventually recognized to be right, independently of the question as to whether an act previously done was either right or wrong. Indeed, the enlightened opinion of the whole world is agreed upon this, that even when a wrong action has been taken, consciously or unconsciously, that which will most redound to the honor of any party thereto is to correct the same. Therefore, whether the acts of the United States done in the Panama emergency were right or wrong, whether they were in accordance with the provisions of the treaty of 1846 and of recognized principles of international law or contrary thereto, the honor of the United States would be enhanced by consenting to arbitrate the claim of Colombia, in the event that the United States can not see, in the light of the facts set forth in this communication, that it is in duty bound to compensate Colombia.

In this connection, I feel sure that the United States will not forget that the Government of Great Britain refused at first to arbitrate the claim of the United States for damages done by the Alabama, asserting that to arbitrate that claim would impair the honor of the British Government. Throughout the whole world, and particularly in the United States, it is now recognized that the arbitration of the Alabama claims by Great Britain and the United States set the tide of the past century in favor of the arbitration of disputes between nations and that the reconsideration of this decision by the Government of Great Britain and the reference of the Alabama claims to arbitration is one of the greatest honors achieved by the British Government, although the decision of the arbitrators was against Great Britain. A similar honor can now be achieved by the consent of the United States to arbitrate the claim of my Government during that administration of the United States under which this claim arose.

And, in order to facilitate so happy a decision by the Government of the United States, in case it can not yet see that it is lawfully bound to compensate Colombia, I propose on behalf of Colombia that the United States and Colombia forthwith enter into a convention for the purpose of securing an impartial judgment upon the following strictly legal questions:

1. Did the treaty of 1846 obligate the United States to maintain the sovereignty of Colombia over the Isthmus of Panama against menace or attack from any foreign power and against internal disturbances that might jeopardize said sovereignty?

2. Did the treaty of 1846 obligate the United States to refrain from taking steps which would hinder Colombia in maintaining her sovereignty over Panama by suppressing rebellion, revolution, secession, or internal disorder?

3. Did the treaty of 1846 grant to the United States the right to take those steps which it is admitted were taken by the United States to prevent the landing of troops in Panama and the suppression of the rebellion?

4. Did the treaty of 1846 leave the United States free lawfully to take the steps which it is admitted by the United States were taken as regards Panama?

5. Did these acts of the United States, which it is admitted were taken, prevent Colombia from taking the steps necessary to suppress the rebellion and maintain her sovereignty over the Isthmus?

6. Were the admitted acts of the United States in respect to Panama in violation of principles of international law which have been recognized by the United States as binding upon nations in their dealings with each other?

7. What damage, if any, has been occasioned to Colombia by acts of the United States which are admitted by the United States, and which may be adjudged as having been in violation of obligations imposed upon the United States by the treaty of 1846 or by principles of international law to which the United States has assented?

The foregoing questions are all of a purely legal character, arising upon the proper interpretation of a treaty and the proper application to undisputed facts of well-recognized principles of international law. They are therefore identical in kind with the questions included in the treaties recently negotiated by the United States with nine governments and almost unanimously ratified by the Senate of the United States as to said questions which are recognized the world over as eminently suitable for judicial, determination. Nevertheless, to provide against all possible misconception of the scope of the arbitration proposed, Colombia will gladly add to the convention, if the United States so desires, a clause providing that the jurisdiction of the arbitrators shall not be construed as extending to the point of passing upon the political policy of the United States, further than to determine whether the policy pursued by the United States as respects Panama was outside of the limits within which the United States had bound itself to remain, either by the treaty of 1846 or by principles of international law to which the United States has assented.

I am led to suggest this because it appears from your communication that my proposition was supposed to imply the reference of the political policy of the United States to the judgment of arbitrators, for you say: “Nor are we willing to permit any arbitrator to determine the political policy of the United States in following its sense of right and justice by espousing the cause of this weak people (Panama) against the stronger Government of Colombia, which has so long held them in unlawful subjection.”

The erroneous supposition that I propose permitting an arbitrator to determine the political policy of the United States has been removed by my suggestion that the Arbitral Convention expressly forbids this by limiting the jurisdiction of the arbitrators to deciding whether the acts of the United States in 1903 were contrary to provisions of the treaty concluded in 1846 or contrary to principles of international law, for violation of which the United States has held other nations accountable.

I need make no further allusion, therefore, to the question of the public policy of the United States; but I am compelled to reply to the charge contained in this paragraph of your communication, and to another clause where you say: “That the ancient State of Panamu, independent in its origin, and by nature and history a separate political community, was confederated with the other States of Colombia upon terms which preserved and continued its separate sovereignty; that in the year 1885 the compact which bound it to the other States of Colombia was broken and terminated by Colombia, and the Isthmus was subjugated by force; that it was held under foreign domination to which it had never consented, and that it was justly entitled to assert its sovereignty and demand its independence from a rule which was unlawful, oppressive, and tyrannical.”

I must say in reply that the question between Colombia and the United States is not whether Panama was justly entitled to assert independence, but whether the United States was under obligation, by treaty or by principles of international law, not to do the things which it is admitted were done by the United States after the declaration of Panama’s independence was made.

Permit me to say further that these allegations come as a surprise to my country, in view of certain public records of the United States, which I must now recall to your attention on account of these allegations.

In regard to the alleged “separate sovereignty” of Panama, it seems to me that you can hardly mean what the language would seem to imply, remembering that in 1846 the United States bound itself to preserve the sovereignty of Colombia over the Isthmus of Panama forever, and in view of the further facts that in 1869, and again in 1903, the United States negotiated with Colombia, as sovereign of Panama, for valuable concessions, in order to construct an isthmian canal through Panama.

These acts could not have occurred if Panama had been a separate sovereignty, or had been so regarded by the United States.

As for the allegation of oppressive or tyrannical conduct toward Panama by the Government of Colombia, permit me to call to your attention the fact that not once since the United States bound itself to maintain forever the sovereignty of Colombia over Panama has the United States intimated to Colombia that her rule in Panama was oppressive, tyrannical, or unlawful; nor has the United States or any other government ever made representations to Colombia on account of injuries to its interests, or the interests of its citizens in Panama, caused by unlawful, oppressive, or typrannical conduct toward Panama by the Government of Colombia.

Were it proper for us to disclose the political relation between Colombia and Panama prior to the 2d of November, 1903, or the internal affairs of Colombia, I could set forth many facts, capable of easy proof, which would show that the allegations into which you have been led are contrary to the facts of the history of my country.

In addition to the foregoing allusion to facts of record in the United States I may say that, owing to the nature of republican institutions, under which Colombia has lived ever since she achieved her independence, through her own efforts, Colombia has been governed by the vote of the people. There has been no disparity in the rights enjoyed by any of the several members of Colombia’s body. All the States or Departments constituting the nation have always had equal rights. It is true that political struggles have occurred in Colombia which resulted in civil strife, even as in all other nations with whose history Colombia is acquainted; but never has Panama or any other State or Department of Colombia endeavored to sever its relations with the rest of Colombia, or even protested against any act of the Government as being against its welfare and designed for the special interest of other parts of the national body. Such civil wars as have occurred in Colombia came from struggles between parties having representatives in all parts of the nation. The sacrifices imposed upon the nation by these struggles and the efforts made to work our way through them have been undergone and shared alike by all parts of the nation.

The citizens of Colombia in Panama took part in the struggles on both sides, and in the outcome Panama shared equally in the benefits with all the other parts of the nation, but, in several particulars of an economical, political, and vital character, was burdened less with the evil consequences than were the others. For instance, Colombia generally had to suffer the evils of a paper currency whereas the people of Panama, throughout the whole crisis and afterwards, continued by the act of Colombia, to enjoy the benefit of specie currency, though paper currency was made, by the act of the Colombian Congress, the only lawful currency in all other parts of the Republic.

Taking the most unfavorable view possible of the refusal of the Colombian Congress to sanction the Herran-Hay treaty, it was only a repetition of the act done in 1869 by the United States Senate. During almost every session of every double-chambered national legislature measures most necessary to the national welfare fail for want of agreement by the two bodies whose assent must be secured, and consequently go over until unity of action can be obtained. The thing which so imperiled the vital interests of the people of Panama was not the refusal of the Colombian Congress to ratify the Herran-Hay treaty without amendment, but the existence of the Spooner Act of the United States, which operated to prevent free and full discussion of and final agreement upon a treaty for the construction of the canal, after the exercise of their constitutional rights Tby all parties charged by law with a responsibility in regard thereto. But for this act the people of Panama could have counted upon the conclusion of a treaty during subsequent sessions of the Congresses of the two countries. Otherwise, republican government must be admitted to be a failure. Moreover, what was there to prevent the United States from amending or repealing this act if actual conditions called for this, in the interest of the United States, of Panama, of Colombia, and of other nations?

I can not escape, however, from the feeling that consideration of the internal government of Colombia and of the relation of Panama to Colombia prior to the 2d of November, 1903, can only serve to confuse the issue, for the arbitrators in the case which Colombia proposes to submit could not inquire into the internal government or the foreign policy of either Colombia or the United States, but only into the questions submitted, questions which are purely of law, upon acts all of which are admitted. The accuracy or the inaccuracy of the statements made by us, in this discussion of the history of Colombia, could not be passed upon in the arbitration which I propose and does not have to be decided by us in making a direct settlement, for the sole question is: Did the United States act contrary to the treaty of 1846 or to principles of international law assented to by the United States?

I beg of you, therefore, to assure the President and his constitutional advisers that I have not intended to propose that the United States submit its public policy to the decision of any arbitrator, and that you will put out of mind all matters which do not affect the claim which is made by my country or the method proposed for its honorable settlement, either by compensation of Colombia or the arbitration of her claim.

Having endeavored to confine myself in this communication to facts about which there is no dispute and which must be considered first by ourselves in arriving at a direct settlement of Colombia’s claim, and then by any court of arbitration to which this claim may be referred, if a direct settlement is not made, I trust that you will assist me to clear away all other questions and to bring to the attention of the President and his constitutional advisers only such questions as will promote an honorable settlement of this unhappy contention at the earliest possible moment.

In former communications received from the Department of State of the United States, it was stated that the actions of the United States sprang from motives of the friendliest kind toward Colombia, and were taken in order faithfully to perform the duties imposed upon the United States by the treaty of 1846.

I note the fact that in your communication it is stated for the first time, on behalf of your Government, that the United States espoused the cause of Panama, the language being:

Nor are we willing to permit any arbitrator to determine the political policy of the United States in following its sense of right and justice by espousing the cause of this weak people against the stronger Government of Colombia, which had so long held them in unlawful subjection?

As my country must suffer a continuous injury until the United States determines either to compensate Colombia or to arbitrate this claim, and as a considerable time has already elapsed since the events complained of, I take the liberty of expressing the hope that the President and his constitutional advisers will give the earliest possible reconsideration to my country’s claim, in the light of the facts and arguments thereon set forth in this communication, and will submit the same to the Senate and to the House of Representatives of the United States in order that the members of these two honorable bodies may determine the course which it is proper for them to take under existing conditions.

After the most painstaking review of the situation I find myself convinced that considerations not only of absolute but of practical justice, as well as of honor and of the general welfare of our two countries, our two continents, and, indeed, of the whole world, call for the compensation of Colombia for her loss or the arbitration of her claim, and I feel confident that the Government of the United States will be glad to accede to one or the other of these honorable proposals, now that all question of casting aspersions upon the honor of the United States has been removed from this correspondence.

If the United States does not feel called upon to compensate Colombia without recourse to arbitration, I propose that the questions herein stated be referred to an impartial court of arbitration constituted in accordance with the provisions of the treaty of The Hague, adopted by the United States and by 25 other nations after most careful consideration. But if for any reason the United States would prefer a court of arbitration constituted in any other way, Colombia will consent to any method suggested by the United States which will assure the selection of competent and impartial arbitrators to determine this unhappy contention.

With assurances of high personal regard and of liveliest hopes for the success of our mutual efforts for a settlement of this controversy which will be honorable to all parties, I beg to remain,

Your Excellency’s obedient servant,

Diego Mendoza.