Spooner, J.C. - Relations with Colombia-Panama canal
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RELATIONS WITH COLOMBIA-PANAMA CANAL.
SPEECH
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HON. JOHN C. SPOONER,
OF WISCONSIN,
IN THIC
SENATE OF THE UNITED STATES,
Thursday and Saturday, February 18 and 20, 1904.
WASHINGTON.
1904.
30 Sep. 18.8.HW.
SPEECH
OF
HON. JOHN C. SPOONER.
8-6-30 AVM
The Senate having under consideration the resolution submitted by Mr.
BAUON, proposing to inform the President that the Senate favor and advise
tlio negotiation of a treaty with the Republic of Colombia to satisfactorily
adjust all differences with the view of securing the cooperation of the Colom-
bian people in the construction of the canal at Panama-
Mr. SPOONER said:
Mr. PRESIDENT: I take the floor under great embarrassment for
more reasons than one. The shadow of death still rests upon this
Chamber, and no Senator can banish the consciousness that a very
powerful and kindly personality has passed forever from our midst.
Every Senator, whether he will or not, will find himself looking
for a face which he can not see and listening for a voice which
he can not hear. I know that I have no heart for speech, and I
know that my colleagues here have no heart for listening.
Moreover, Mr. President, I know that nothing which can be.
said upon this great subject will change any Senator's conviction
as to his duty. Nevertheless I feel constrained to place in the REC-
ORD some observations upon the general subject.
I am gratified, as I think the people of the whole country are,
that we are not divided upon party lines either in the discussion
or the decision of this matter, so inonumental in its inportance
to the country for all time. The debate has been a very thorough
one. It has been not without bitterness. It could not have been
expected probably that that phase of it should be eliminated.
Some very bitter imputations have been cast upon the Presi-
dent. He has been charged with violating the plain provisions
of a law of Congress. He has been charged with usurping the
power which is vested by the Constitution in Congress alone to
declare war, and he has been charged with violating the estab-
lished principles of international law. These would be serious
charges if they were grounded in truth, which in my opinion they
are not.
Bitterness in debate, Mr. President, toward a President counts
for little. There has been no President since the formation of the
Government who was exempt from it. It was more virulent in
the early days of the Republic than it is in modern times. Presi-
dent Lincoln, now reverenced by all mankind as one of the kindliest
characters and noblest men who ever ruled, I can remember, was
attacked as a tyrant, as a systematic violator of the Constitution,
and as a murderer. President McKinley, considerate of every
human being, and of whom I think it may be justly said that he
never thought an unkind thought or did an unkind act, was not
exempt from it. He has passed away, and all criticism of him has
passed away. We find no Senator to-day in this Chamber, where
we listened to attacks upon him, aye, even to imputations upon
his honor, who would give ear for a moment to those suggestions,
or who would even criticise him in his policy, except in the kind-
Reclassed
liest way
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These things are evanescent, Mr. President. History takes no
note of them, except to give occasion for wonder that they ever
were said. I believe that, taken all in all, the people of the Uniteil
States feel that the President, in what has been dore and for
which he has been so bitterly criticised, interpreted their will,
safeguarded their interests; and all, of course, in an honorable
way.
RECENT HISTORY OF CANAL LEGISLATION.
Now, Mr. President, I wish to put in the RECORD very briefly
a reference to the legislative history upon this subject, not an-
cient, but modern. There is in cei tain otservations which have
been made on the other side some occasicn for it.
In 1898 the distinguished Senator from Alalama [Mr. MORGAN]
introduced a bill, which accepted the proposition made by the
Maritime Canal Company to cancel all of its outstanding obliga-
tions, and to conform to certain requirements indicated in the bill.
The bill was intended to provide for the construction of the Nica-
ragua Canal. The capital stock of that corporation was to be in-
creased to $100,000,000, as I remember it.
Mr. MORGAN. Limited to that.
Mr. SPOONER. Limited to $100,000,000, $70,000,000 of which
was to become the property of the United States, which was to
control the board of directors of the company. The company was
authorized to issue $100,000,000 of borels, which were to be guar-
anteed by the United States, and with the proceeds the work of
constructing the canal was to proceed.
That bill passed the Senate on the 21st of January, 1899. I was
opposed to the bill as introduced for several reasons; one, because,
Mr. President, it seemed to me very clearly to violate the Clayton-
Bulwer treaty and also the canal concession by placing the control
of the concession in a foreign government. I thought that the
obstruction which the Clayton-Bulwer treaty constituted to the
construction of the canal ought, in the interest of international
harmony and upon every possible theory, to be removed by negoti-
ation, as it ultimately was, and not by the harsh method of legis-
lative abrogation.
Another thing, Mr. President. Under that bill the Government
was not providing for further concessions from Nicaragua and
Costa Riča. It was simply stepping into the shoes, if I may use,
that phrase, of the Maritime Canal Company and investing its
money under the concession held by that company, which had not
long to run. and which had, so far as the Government of Nica-
ragua could do it, been already forfeited, the forfeiture to take
effect upon the expiration of a few years, by a grant of a similar
concession to another company then to take effect.
Another thing, Mr. President, if these objections had been elimi-
nated, which led me to oppose that bill was that under the Nica-
ragua concession after a period of ninety-nine years, to be followed
by another period of ninety-nine years, the canal property--all of
it-would become the sole property of those Governments.
Mr. MORGAN. Has the Senator the bill before him?
Mr. SPOONER. No, sir.
Mr. MORGAN. I think the Senator is mistaken.
Mr. SPOONER. I am not. The bill did not refer to that; but
the Senator will not dispute that there was a time limitation in
the concession granted by Nicaragua and Costa Rica to the Mari-
time Canal Company, first, a period of ninety-nine years, and then
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a leasehold period, at a certain rate, of ninety-nine years, and I
was not willing-
Mr. MORGAN rose.
Mr. SPOONER. Does the Senator dispute that?
Mr. MORGAN. I do not remember quite distinctly about that;
but the bill contained no such provision.
Mr. SPOONER. Oh, no.
Mr. MORGAN. Is the bill to which the Senator refers the one
which passed the Senate by a vote of 48 to 6?
Mr. SPOONER. It passed by a large vote.
Mr. MORGAN. If the Senator will permit me, while I am up
I will remark that that was predicated upon the principle of the
Frelinghuysen-Zavala treaty.
Mr. SPÕONER. The bill was largely debated, Mr. President,
and whatever the Government might have been able to obtain later
nobody could know, but under the provisions of that bill, had it
become a law, without amendment, in the respects I have sug-
gested, the Government would have invested $100,000,000 in the
construction of a canal which in a hundred and ninety-eight years
would have belonged to Nicaragua and Costa Rica. I was not
willing, for one, to vote for that proposition.
Mr. MORGAN. Did the Senator vote against the bill?
Mr. SPOONER. I voted for the bill after the adoption of an
amendment to which I will call attention.
Mr. MORGAN. There was a minority of but six against it.
Mr. SPOONER. Yes; I think the minority was six-a very
small minority. I would not have voted for the bill without the
elimination by amendment of the objections to which I have ad-
verted, as I looked upon it as a proposition to invest a hundred
million dollars of Government money upon a foundation as flimsy
as a fog bank. I also felt that the plainest principles of prudence
required that the Government should not be tied down to nego-
tiation for a concession to the Governments of Nicaragua and
Costa Rica, thereby subjecting the Government to the alternative
of unjust exactions or of another failure to construct the canal.
In order to remove the objections, which I sincerely urged, and
which I thought then and think now were substantial, I offered
an amendment, to stand as section 12, as follows:
That if the President is unable to secure from the Governments of Nica-
ragua and Costa Rica such concessions as will enable the United States to
build and perpetually own and control said canal, he is authorized to nego-
tiate for the control of the right to construct, maintain, and perpetually con-
trol some other canal connecting the Atlantic and Pacific oceans, and the
President is requested to negotiate for the abrogation or modification of all
treaty obligations, if any such exist, in anywise interfering with the con-
struction, ownership, and perpetual control of any such canal.
This amendment was accepted by the distinguished Senator
from Alabama as of substance and wisdom. Thus amended, and
also amnended in some other particulars on the motion of other
Senators, I voted for the bill, which passed the Senate. That bill
was reported back from the House Committee on Interstate and
Foreign Commerce on February 13, 1899, by substitute which was
substantially what has become known as the Hepburn bill.
During the third session of the Fifty-fifth Congress Mr. HEP-
BURN introduced a bill to provide for the construction of a canal
connecting the waters of the Atlantic and Pacific oceans.
never reported from the committee.
On the 2d of May, 1900, the House of Representatives passed
the Hepburn bill, to provide for the construction of a canal con-
It was
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necting the waters of the Atlantic and Pacific oceans by the
Nicaraguan route. That bill was reported back by the Senate
Committee on Interoceanic Canals May 14, 1900, and died. It
provided practically for fortifying the canal, as I think should be
provided and as now can be provided by whichever route the
canal may be constructed. It died then, Mr. President, because
we were in the midst of negotiations with Great Britain to re-
move the Clayton-Bulwer treaty.
At that time we had amended the Hay-Pauncefote treaty and
Great Britain was considering the question whether to agree or
not with the amendments. It was pretty generally thought in
the Senate, and I thought then and still think wisely considered,
that it would be an act of international indecency while those
negotiations, initiated at our request, were pending. to pass an act
the effect of which would be to abrogate the Clayton-Bulwer
treaty.
In 1899, Mr. President, there was incorporated in the river and
harbor bill-I think introduced by the Senator from Alabama and
referred to the Committee on Commerce-a provision which was
substantially the Hepburn bill for the construction of the Nica-
ragua Canal, and it passed the Senate. The House of Representa-
tivenonconcurred in it and the bill went into: conference—that
provision with the other provisions which had been disagreed to.
The distinguished Senator from Maine who presides over the de-
liberations of this body (Mr. FRYE], was the chairman of the
conference committee on the part of the Senate, and Mr. BURTON,
I think, was chairman of the conference committee on the part
of the House. Out of that conference came, Mr. President, the
Canal Commission act, the pertinent portion of which is as follows:
CANAL COMMISSION ACT.
SEC. 3. That the President of the United States of America be, and he is
hereby, authorized and empowered to make full and complete investigation
of the Isthmus of Panama with a view to the construction of a canal by the
United States across the same to connect the Atlantic and Pacific oceans;
that the President is authorized to make investigation of any and all prac-
ticable routes for a canal across said Isthmus of Panama, and particularly to
investigate the two routes known respectively as the Nicaraguan route and
the Panama route, with a view to determining the most practicable and feas-
ible route for such canal, together with the proximate and probable cost of
constructing a canal at each of two or more oť said routes; and the President
is further authorized to investigate and ascertain what rights, privileges,
and franchises, if any, may be held and owned by any corporations, associa-
tions, or individuals, and what work, if any, has been done by such corpora-
tions, associations, or individuals in the construction of a canal at either 01
any of said routes, and particularly at the so-called Nicaraguan and Panama
routes, respectively and likewise to ascertain the cost of purchasing all of the
rights, privileges, and franchises held and owned by any such .corporations,
associations, and individuals in any and all of such routes, particularly the
said Nicaraguan route and the said Panama route; and likewise to ascertain
the probable or proximate cost of constructing a suitable harbor at each of
the termini of said canal, with the probable annual cost of maintenance of
said harbors, respectively; and generally the President is authorized to make
such full and complete investigation as to determine the most feasible and
practicable route across said Isthmus for a canal, together with the cost of
constructing the same and placing the same under the control, management,
and ownership of the United States.
SEC. 4. To enable the President to make the investigations and ascertain-
ments herein provided for, he is hereby authorized to employ in said service
any of the engineers of the United States Army, at his discretion, and like-
wise to employ any engineers in civil life, at his discretion, and any other
persons necessary to make such investigation, and to fix the compensation
of any and all of such engineers and other persons.
To make full and complete investigation of the Isthmus of Panama with a
view to the construction of a canal by the United States across the same to
connect the Atlantic and Pacific oceans; that the President is authorized to
make investigation of any and all practicable routes for a canal across said
Isthmus of Panama, and particularly to investigate the two routes known
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respectively as the Nicaraguan route and the Panama route, with a view to
determining the most practicable and feasible route for such canal.
That was the duty laid, Mr. President, by Congress upon the
President, and $1,000,000 were appropriated to defray the expense
of the investigation, the result of which the President was to re-
port to Congress.
Under this act President McKinley appointed a Commission of
nine, the personnel being as follows: Admiral Walker, chairman;
Samuel Pasco, ex-Senator; Mr. George S. Morison, civil engineer;
Lieutenant-Colonel Ernst, Corps of Engineers, United States
Army; Louis M. Haupt, civil engineer;
Alfred Noble, civil engi-
neer; Col. Peter C. Hains, Corps of Engineers, United States
Army; William H. Burr, civil engineer, and Prof. Emory R.
Johnson. This commission was chosen with great care, and its
members were once referred to here by the distinguished Sen-
ator from Alabama as "the pick of the country." I have never
heard that Commission impeached as to ability or as to integrity.
Some of the most eminent engineers of the United States were
charged with the duty of investigating the different routes and of
report.ng to Congress as to wwich the public interest required to
be adopted.
REPORTS OF CANAL COMMISSION.
The Commission spent over two years in the work and made" a
preliminary report" and what is called a “final report," bearing
date November 16, 1901. Both reports were unanimous. They
pointed out certain advantages in the Nicaragua route; certain
advantages in the Panama route; pointed out the fact, which
everyone knew, that the Government of the United States was
not at liberty to negotiate with Colombia directly and freely for
the requisite concession to secure the construction of the Panama
Canal, because there was held outstanding by a French company a
concession, under which hundreds of millions of dollars had been
expended, a vast amount of work had been performed, and the life
of which had some years to run, disabling the Republic of Colom-
bia from entering into any negotiations with reference to the Pan-
ama route unless the concessions and property of the New Panama
Canal Company should be first acquired with Colombia's con-
sent. That Commission reported that the New Panama Canal
Company demanded, as I remember it, $109,000,000 for its prop-
erty and concessions, which the Commission estimated to be worth
$10,000,000, and not more. They were not willing that the Govern-
ment of the United States should be “held up
held up” in this way by
the French company, and therefore they reported, in view of this
extortionate demand and all things considered, in favor of the
Nicaragua Canal as the more feasible of the two routes.
It was while this unanimous report, qualified as it was, both
preliminary and final, was standing that on January 9, 1902, the
House of Representatives passed, with, I think, only two negative
votes, the Hepburn bill, which came to the Senáte.
Mr. President, while that bill was pending in the Senate and on
the 9th of January, 1902, the French company reduced its offer
from $109,000,000 to $40,000,000, the estimate of actual value, made
by the Canal Commission. Then the Canal Commission, being
brought together by order of the President to consider the changed
situation with reference to whether a changed report should be
made, made a supplementary report. which was unanimous, and
was transmitted by the President to Congress January 20, 1902, in
which it recommended the adoption of the Panama route.
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Mr. MORGAN. Mr. President-
The PRESIDENT pro tempore. Does the Senator from Wis-
consin yield to the Senator from Alabama?
Mr. SPOONER. Yes.
Mr. MORGAN. I think I shall have to ask the Senator to re-
flect a moment about that last statement as to the Commission
being unanimous. Mr. Haupt put in the record of the proceed-
ings of that Commission a dissent to which I have called the at-
tention of the Senate and of the Senator from Wisconsin hereto-
fore. I think he ought to state that.
Mr. SPOONER. Mr. President, I regret somewhat that the
Senator from Alabama has again called my attention to a fact
which I had not at all forgotten. The Senator's suggestion does
not call upon me to change in the slightest degree the statement
which I made, which is that that report when sent to the Senate
by the President bore the signature of every member of that Com-
mission, including that of Mr. Haupt.
Mr. MORGAN. But it did not contain Mr. Haupt's dissent.
Mr. SPOONER. Mr. Haupt did not put his dissent upon it.
He signed the report.
Mr. MORGAN. Mr. President
Mr. SPOONER. I will get to that, if the Senator will permit
me.
Mr. MORGAN. Allow me to say just this: Mr. Haupt swore
that he did before the Committee on Interoceanic Canals. His
testimony is in the report, where every Senator can see it.
Mr. SPOONER. Mr. President, I am not disputing at all that
Mr. Haupt, after having signed this report which came to the
Senate as the unanimous action of that Commission, had tran-
scribed into the minutes of the Commission his dissent.
Mr. MORGAN. No. As a matter of fact, I say that he signed
his dissent at the time he signed the report.
Mr. SPOONER. Certainly, but he did not make it on the paper
which was to be given to the world and which was to be acted
upon by Congress. I never knew that Mr. Haupt had not signed
unqualifiedly that report until, during the debate on the canal
bill, the Senator from Alabama called my attention to Mr. Haupt's
dissent on the minutes of the Commission, which were not trans-
mitted to Congress.
Mr. MORGAN. But that is not Mr. Haupt's fault. He did
all be could to protect himself.
Mr. SPOONER. Mr. President, I dislike extremely to com-
ment-and I will not with anything like severity-—upon the act
of one not here to defend himself; but I am bound to say that it
was the plain, manly duty of Mr. Haupt, who had been placed
upon that Commission, to give to Congress the benefit of his honest
judgment, to have refrained from signing that report if his con-
victions as an engineer were against it. I do not look upon it as
altogether worthy of the position which he held for him to have
signed that report, making it to appear as a unanimous report,
to be followed later by a declaration on the minutes of the Com-
mission that he did not believe in the report.
Mr. MORGAN. It was not later; it was at the same time.
Mr. SPOONER. It was not later that he had placed upon the
minutes of the Commission his dissent, but it was later that we
knew of his dissent.
However, that is a matter for Mr. Haupt to settle with himself.
He says that he was informed that certain political considerations
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on it.
would defeat a canal altogether unless that report was unanimous,
and, although he did not believe at all in the Panama route-no
language could be stronger than he has used-he signed the re-
port. I do not know where he became advised of political exi-
gencies or schemes which would defeat the canal; but I do know
that he had been trusted with the discharge of a great duty to the
people of the United States, and that the straightforward, manly
method of discharging it would have been for him to have entered
upon that report his dissent from it. But I care nothing for that.
Mr. PATTERSON. Will the Senator from Wisconsin permit a
question?
The PRESIDING OFFICER (Mr. Petrus in the chair). Does
the Senator from Wisconsin yield to the Senator from Colorado?
Mr. SPOONER. Yes, sir.
Mr. PATTERSON. Do I understand the Senator from Wis-
consin to say that the failure to give publicity to Mr. Haupt's
protest was Mr. Haupt's fault?
Mr. SPOONER. Oh, no.
Mr. PATTERSON. Very well. Then why should the Senator
censure Mr. Haupt if at the time he signed with the rest of the
Commission the approval of the Panama route he gave his reasons
for so signing and at the same time put upon record the objec-
tions he had to the Panama route? If the fault is elsewhere, then
certainly Mr. Haupt is not subject tù the criticism the Senator
from Wisconsin is making upon him.
Mr. SPOONER. I do not care anything about that. The fault
was in signing a report that he did not believe in. That was the
fault. And that is so obvious that I will not spend any time
Mr. PATTERSON. Mr. Haupt gave his reasons for signing
the report, and at the same time he put upon record his objections
to the Panama Canal. That was a fair, frank, manly way of do-
ing it. Good and sufficient reasons for signing the report oper-
ated upon his mind, and he stated those reasons to the public;
and I imagine that if the objections that he put upon record were
not given to the public in connection with his signature of the re-
port, somebody is to blame other than Mr. Haupt, because cer-
tainly he desired, as a man of honor, that the public should be
familiar with what was in his mind and that which gave color to
his act. Now, whether it is the fault of the friends of the Pan-
ama Canal or somebody else's fault I do not know, but certainly
it is not traceable to Mr. Haupt.
Mr. SPOONER. I am only stating a fact. I think the Senator
from Colorado, had he been on the Commission and disagreed
entirely with the report, would have entered on the report his
dissent. I may be mistaken.
Mr. PATTERSON. I do not understand that Mr. Haupt dis-
agreed altogether with his colleagues on the Commission. As I
understand Mr. Haupt’s protest, he had grave doubts with refer-
ence to some of the features of construction in connection with
the Panama route. Several matters that were simply experi-
mental, that had not been solved with sufficient definiteness to
satisfy him as an engineer, existed in connection with the Panama
route. He was willing, as I understand his protest. by reason of
the danger that no canal at all might be constructed, to forego
his fears, when he signed the report to make it unanimous, and
at the same time he put his fears and his beliefs upon record.
Mr. SPOONER. Mr. President, the last sentence in this report,
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transmitted by the Commission to the President to be laid before
the Congress, as required by law, signed by Admiral Walker,
Samuel Pasco, Alfred Noble, George S. Morison, Peter C. Hains,
William H. Burr, O. H. Ernst, Lewis M. Haupt, and Emory R.
Johnson, is this:
After considering the changed conditions that now exist and all the facts
and circumstances upon which its present judgment must be based, the Com-
mission is of the opinion that "the most practicable and feasible route"
Using the language of the Canal Commission act
for an isthmian canal, to be under the control, management, and ownership
of the United States," is that known as the Panama route.
Mr. CULLOM. Who signed that report?
Mr. SPOONER. It is signed by every member of the Commis-
sion.
Mr. President, it is a fact which seems to be, but ought not to be,
forgotten by some Senators, who refer with so much earnestness
to the passage by the House with only 2 negative votes of the
bill for the Nicaragua Canal, and to the passage by the Senate
as an amendment to it of the alternative bill, by which a canal
by the Panama route was preferred and that by the Nicaragua
route made secondary, that between the passage of the bill by the
House and the passage of the canal bill by the Senate there had
been transmitted to Congress the report of the Canal Commission,
signed by all of its members, based upon an entirely changed sit-
uation, by which report a canal by the Panama route was recom-
mended.
I have supposed that if the Canal Commission in the first in-
stance had reported in this way for the Panama Canal, its
recommendation would have been followed by the House, as I
have never had any doubt that if the Canal Commission had not
upon the receipt of the French company's offer changed its re-
port so as to recommend the Panama route, the Senate would
with great unanimity have passed the House bill providing for a
canal by the Nicaragua route.
I felt-I suppose the same thing is true of my colleagues with
whom I voted to sustain the report—that I, a layman, utterly un-
skilled in engineering science, unfamiliar, of necessity, with the
details surrounding the question, could not place my judgment
against the unanimous report of this great expert Commission,
which with almost limitless funds at its disposition had made so
exhaustive an examination of the whole question.
As it was, Mr. President, this Commission had reported alterna-
tively. It had reported that the Nicaragua route was a prac-
ticable route. It had reported that the Panama route was a
practicable route, and if the title to the property of the New
Panama Canal Company could be acquired for $40,000,000 and
the necessirry concessions from Colombia could be obtained, the
public interest of the United States required that the canal should
be constructed on that route.
THEORY AND PURPOSE OF THE CANAL ACT OT JUNE, 1902.
It was in that situation that I drafted the canal act, or the por-
tion of it which I offered as an amendment to the Hepburn bill.
It was drawn to meet the alternative presented by the Commis-
sion. It was drawn with the main purpose of putting on the stat-
ute books legislation under which, without further legislation or
delay, a canal would be constructed by one of the two routes. That
was the governing purpose of the amendment.
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Mr.'MORGAN. Will the Senator from Wisconsin allow me to
ask hiin a question?
Mr. SPOONER. Certainly.
Mr. MORGAN. Does he not think that that bill, which we
call the Spooner law
Mr. SPOONER. I never call it that.
Mr. MORGAN. I know you do not. I do, because I think it
is an honor to the man who drew it. Does he not think that that
bill contained every provision necessary to build a canal on either
of the alternative routes?
Mr. SPOONER. It was so intended.
Mr. MORGAN. Does he not think the bill-
Mr. SPOONER. I do.
Mr. MORGAN. Was admirably adapted for that purpose?
Mr. SPOONER. It was so intended.
Mr. MORGAN. Yes.
Mr. SPOONER. It was not intended to leave to the Executive
the selection of a route. The Senator, early in the observations
which I had the honor then to submit in support of the amend-
ment which I had offered, put to me that question, and I was
glad of it, for it had been misrepresented in the newspapers.. I
told him that the bill.was so drawn as to exclude from Executive
option the route; that I did not think it was a proper duty and
responsibility to devolve upon the President. I have not at all
changed my mind.
It provided, first, that if the President could obtain for $40,-
000,000 a satisfactory title to the property of the New Panama
Canal Company, of every name and nature, on the Isthmus, and
also some in Paris, with the concessions, and could obtain by
treaty the requisite concessions from the Republic of Colombia,
some of the requirements of which were indicated in the act, the
treaty being ratified, the canal should be constructed at Panama.
But if within a reasonable time he could not obtain the Panama
property with a good title thereto and the requisite concessions
from Colombia-for both had to be obtained before any act could
be performed in relation to the Panama Canal-he was to go to
Nicaragua.
The President has not exercised or attempted to exercise the
right to select a canal route. That was done by Congress, and
that ought not, in the imputations which are cast upon the
President, to be forgotten. We put upon him the burden of carry-
ing out, if possible, the selection which we had made.
I never have uttered a word here in debate against the practica-
bility of the Nicaragua Canal, except so far as was involved in
attempting to show briefly the grounds upon which the Panama
Canal should be preferred. But the point which I wish to make
is that Congress chose the Panama route on full debate and upon
report of the Commission as the route which would best subserve
the interest of the United States.
POINTS OF SUPERIORITY OF PANAMA ROUTE.
Now, Mr. President, I want very briefly to refer to some of the
reasons why I think the Panama route commended itself to a ma-
jority of the Senate rather than the Nicaragua route. I take this
from the minority report, largely based, so far as I have been
able to discover, upon the reports of the Commission. I want to
put in the RECORD the grounds for that conclusion:
It is 134.57 miles shorter than the Nicaragua from sea to sea, being 49.09
miles by Panama as against 183.66 by Nicaragua.
5843
12.
TES
It has always seemed to me too plain for debate that a practical
route through which ships could go from sunrise to sunset must
in the nature of things be preferable to one which would require
two days and one night for transit.
2. It has less curvature, both in degrees and miles, being but 22.85 miles of
curvature as against 49.29 on the Nicaragua; and but 771 degrees for Panama
as against 2,339 degrees for Nicaragua.
That is a great deal.
3. The actual time of transit is less, being but twelve hours of steaming by
Panama as against a minimum of thirty-three hours of steaming by Nicara-
gua-that is, of one day of daylight as against three days of daylight.
They add:
For the canal must be navigated by day exclusively at first, and, to a great
extent, always, especially by large ships, which chiefly will use it. The
Commission's plan does not provide facilities for navigation by night.
4. The locks are fewer in number, being but 5 on Panama to 8 on the Nica-
ragua.
5. The barbors are better, those at the termini of the Panama being good
and already used by the commerce of the world, while at the termini of the
Nicaragua there are no harbox's whatever.
6. The Panama route traverses a beaten track in civilization, having been
in use by the commerce of the world for four centuries, while the Nicaragua
route passes through an unsettled and undeveloped wilderness.
7. There already exists on the Panama route à l'ailioad, perfect in every
respect and equipped in a modern manner, closely following the line of the
canal, and thus greatly facilitating the construction of the canal, as well as
furnishing a source of revenue, and included in the offer of the Panama
Company.
8. The annual cost of maintenance and operation of the Panama Canal
would be $1,300,000 less than that of the Nicaragua.
9. All engineering and practical questions involved in the construction of
the Panama are satisfactorily settled and assured, all the physical condi-
tions are known and the estimates of the cost reliable, while the Nicaragua
involves unknown and uncertain factors in construction and unknown diffi-
culties to be encountered, which greatly increase the risks of construction
and render uncertain the maximum cost of completion.
I will not read the remainder. There are only a few sentences
as to cost.
Those considerations all seemed to me, as they seemed to the
Commission and to a majority of the Senate, to be entitled to
great weight. There was another thing about it, Mr. President,
: which I have said it before, but I shall repeat it, I hope for the
last time—had great weight with'many Senators I know, and very
great weight with me, that the concurrent testimony was that the
Panama Canal can be made a sea-level canal, while the Nicara-
gua Canal never can be a sea-level canal.
Mr. MORGAN. Does the Senator refer to the report of the
Commission?
Mr. SPOONER. Yes, sir.
Mr. MORGAN. The Commission reported against that view,
and so did the French commission.
Mr. SPOONER. I am a little surprised to hear the Senator
from Alabama say that
Mr. MORGAN. It is the record.
Mr. SPOONER. My friend from Alabama, for whom he knows
I have the profoundest respect, interrupted me with that state-
ment when the canal act was under discussion, asserting then
just what he asserts now and what he asserted the other day in one
of his speeches on this subject. Rather brusquely, I see to my re-
gret, I denied the Senator's assertion, although I find I apologized
to him for the manner of my speech in that regard. But I asked
the Senator then, as I ask him now, to turn to page 88 of the re-
5843
13
port of the Commission, as I turn now to page 88 of the report
of the Commission, and this is what they say:
If a sea-level canal be constructed, either the canal itself must be made of
such dimensions that maximum floods, modified to some extent by a reser-
voir in the Upper Chagres, could pass down its channel without injury, or
independent Channels must be provided to carry off these floods. As the
caval
lies in the lowest part of the valley, the construction of such channels
would be a matter of serious difficulty, and the simplest solution would be to
make the canal prism large enough to take the full discharge itself.
This would have the advantage, also, of furnishing a very large canal, in
which navigation, under ordinary circumstances, would be exceptionally
easy. It would involve a cross section from Obispo to the Atlantic, having
an area of at least 15,000 square feet below the water line, which would give
a bottom width of about 400 feet.
What a magnificent canal that would be!
The quantity of excavation required for such a canal has been roughly
computed, and is found to be about 266,228,000 cubic yards. The cost of such
a canal, including a dam at Alajuela and a tide lock at Miraflores, near the
Pacific end, is estimated at not less than $240,000,000.
Does that sound like a repudiation of the practicability of a sea-
level canal at Panama?
Mr. MORGAN. Its feasibility, if the Senator will permit me.
· Mr. SPOONER. It is only a question of money. Because of
the vast expense of it, and the number of years—twenty years —
which would be required to construct it, for present purposes the
Commission reported against a sea-level canal and for a lock
canal; but I will have more to say about that as I go along.
Its construction would probably take at least twenty years. This Com-
mission concurs with the various French commissions which have preceded
it since the failure of the old company in rejecting the sea-level plan. While
such a plan would be physically practicable, and might be adopted if no other
solution were available, the difficulties of all kinds, and especially those of
time and cost, would be so great that a canal with a summit level reached by
locks is to be preferred.
But, Mr. President, when it is remembered, that this is the
greatest work in the history of the world; that it is to be con-
structed for all time; that it is to meet not only the commercial
demands and provide for the safety of 80,000,000 people, but the
time is to come, and from the standpoint of national life is not
far away, when it will be obviously necessary that it should be
adequate for the demands of 200,000,000 or 300,000,000 people and
a vastly expanded commerce of their own and of the world, what
has the question of money to do with it? What has the question
of time to do with it? Is it worth anything in a work like this,
constructing it first as a lock canal, that in truth it can be made,
as the whole testimony shows, when our safety demands it, when
our commerce demands it, a canal without a single lock, excepta
tide lock at the Pacific-no dam to be blown up or washed out--a
canal through which our war ships can quickly steam; one more
easy to keep always in repair?
I suppose if we could to-day have a sea-level canal connecting
the Atlantic and the Pacific at Panama, to be built in ten or in
twelve years, that would cost $400,000,000, no Senator in this
Chamber would hesitate a moment about adopting it.
Mr. MORGAN. Now, Mr. President, I think I must ask per-
mission of the Senator to say a word.
The PRESIDING OFFICER. Does the Senator from Wiscon-
sin yield to the Senator from Alabama?
Mr. SPOONER. Certainly.
Mr. MORGAN. I would not vote for anything of the kind.
5843
14
The tide lock that the Senator mentions has to resist a tide of 21
feet, which comes in every day and sometimes twice a day. It is
a more desperate struggle to keep that tide out of the canal, to
keep it from destroying it, than it is now with the Chagres River,
and you can not get more than one ship an hour through a tide
lock in the Pacific Ocean.
Mr. SPOONER. Mr. President, I have always admired the al-
most universal learning, and the great ability of the Senator from
Alabama, as a lawyer and statesman, but I hope that the Senator
will not consider me wanting in deference to him when I say that
I feel a little safer at least in following upon engineering questions
the opinion of eminent engineers who have gone over the ground,
charged with a great professional public duty, than in following
the distinguished Senator from Alabama.
Mr. MORGAN. The Senator does himself and me more than
full justice, for I do not profess to know anything about it except
what I have learned from the most eminent engineers in the world;
at least we call them so.
Now, as soon as I can have an opportunity I will furnish to the
Senator for his own satisfaction a paper written by Mr. Morison
after he had signed this recommendation of the Panama Canal,
in which, be shows the absolute impossibility of digging a canal
that would be permanent at Panama with any reference at all to
cost or with any reference to commercial advantages. In this
article, which he submitted for the consideration of his brethren,
and the debate and discussion of it just before he died, he demon-
strates the impossibility or impracticability, within any reason-
able cost at all, even of cutting the canal at sea level at Panama.
Mr. SPOONER. I have not seen that article by Mr. Morison.
Mr. MORGAN. I have them and will produce them to-morrow.
Mr. SPOONER. I inquired about it of some one who read it,
and I was told that Mr. Morison had doubts as to whether the
Bohio dam can be constructed upon the plan which the Commis-
sion had considered.
Mr. MORGAN. That is not what I am referring to. I refer
to a sea-level canal at Panama.
Mr. SPOONER. I will read from Mr. Morison in a moment. I
prefer to await the article which the Senator promises to hand me.
Mr. SIMMONS. Mr. President-
The PRESIDING OFFICER. Does the Senator from Wiscon-
sin yield to the Senator from North Carolina?
Mr. SPOONER. Yes, sir.
Mr. SIMMONS. I desire to ask the Senator from Wisconsin a
question. The Senator has stated that it would require three
days for a ship to pass through the Nicaragua Canal. He stated
that it would require only one day for a ship to pass through the
Panama Canal. That I understand to be the fact. Now, it is also
a fact that the entrance to the Panama route is several hundred
miles down the coast from either ocean farther than the entrance
to the Nicaragua route.
I wish to ask the Senator a question, not for my own benefit,
but because I find there is some confusion as to the fact, especially
in my State. If a ship should start from some port upon the At-
lantic seaboard, destined for some port upon the Pacific seaboard,
would it require longer for that ship to accomplish its journey by
the Panama route.than by the Nicaragua route?.
Mr. SPOONER. Taking into account steamships?
Mr. SIMMONS. Taking into account the fact that it takes
5843
15
three times as long to pass through one as the other, and that the
Panama route is several hundred miles farther down the coast
than the Nicaragua route.
Mr. SPOONEŘ. The testimony is almost overwhelming that,
taking into account the difference in time which would be re-
quired to go through the Nicaragua Canal and that required to
pass through the Panama Canal, in the time for the voyage there
would be little if any appreciable difference.
If the Senator will turn to the great speech of our dead Senator
from Ohio [Mr. Hanna]-one of the most exhaustive and illumi-
nating speeches ever contributed to a public debate in the Sen-
ate-he will find abundantevidence to sustain what I simply state
in answer to his question.
Mr. SIMMONS. I understood and remember that the late
Senator Hanna did discuss that matter and make it perfectly
clear; but I desired a statement from the Senator because, as I
said, there is some confusion among citizens of my own State as
to the length of time required for a ship to make the trip between
Atlantic and Pacific ports by the Nicaragua and Panama routes.
Mr. SPOONER. The great Senator from Ohio brought to the
investigation of this subject his power of concentration, which
was wonderful, his great business judgment, which within my
knowledge has not been excelled, and an industry which, em-
ployed in the public interest, was absolutely unflagging and
tireless, and his speech will forever be an infinite credit to him-
self and a great honor to the Commonwealth which loved him and
which he ably represented in this body.
But I ask the attention, of the Senate to what I find in Mr.
Hanna's speech upon the question whether the Panama Canal can
be made a sea-level canal, and also as to whether the Nicaragua
Canal can be made a sea-level canal, although I have never heard
it asserted that that is a possibility.
Senator Hanna put this question:
Is it practicable to make the Panama Canal a sea-level canal?
Answer of Admiral Walker. I believe it to be practicable to make the
Panama Canal a sea-level canal.
The same question was put to ex-Senator Pasco, who replied:
I do not claim to speak with authority upon engineering problems, but I
have long been interested in questions relating to canal construction, both
before and since my connection with the Commission, and have given them
much thought and study. My opinion is that a sea-level canal can be con-
structed at Panama, but not at Nicaragua.
The same question was put to Mr. Noble, concededly one of the
ablest engineers in the country. His answer was:
It is practicable to make the Panama Canal a sea-level route either before
or after opening navigation through it, while a sea-level canal is practically
impossible by the Nicaragua route.
I stop to call attention to that answer, Mr. President, because
it is supported by the testimony of others, that we may make of
this canal a lock canal, use it as a lock canal, and while using it
as a lock canal can transform it into a sea-level canal. Is it
worth nothing in the long reach of time that the canal which we
build first as a lock canal our people, when public safety or public
interest commercially demands it, can transform into a sea-level
canal? The question answers itself. Whatever predilection a
man may have for this route or that, that question answers itself.
The question was put to Mr. Morison, who replied:
Yes. In my judgment the actual expenditure required to make the Pan-
ama Canal a sea-level canal would not be much more than that required to
coinstruct the Nicaragua Canal as a high-level canal. The objection to build-
0343
16
ing the Panama Canal now as a sea-level canal is the time, probably from
twenty to twenty-five years, which would be required for its construction.
Twenty-five years! a long, long time in the life of a man: not
an hour or a minute in the life of a nation.
Colonel Hains, also one of the ablest engineers of the Army, a
man of large experience, answers the question:
It is practicable to make the Panama Canal a sea-level canal.
Professor Burr, also a great engineer, said:
It is entirely practicable to make the canal on the Panama route a sea-
level canal.
Lieutenant-Colonel Ernst, likewise justly distinguished, an-
swered the question by saying, “It is.'
Senator Hanna's question No. 4 was this:
Can this be done after construction as a lock canal!
To which Admiral Walker replied:
I believe that a sea-level canal can be made after the construction of a
lock canal.
Ex-Senator Pasco gave the same opinion, but he is a lawyer;
and while he has studied the subject much more than I have, I
would not be willing to base legislative action on his judgment
alone, although I greatly respect him.
Mr. Noble said:
It is practicable to make the Panama Canal a sea-level route either before
or after opening navigation through it.
Mr. Morison said:
It can be made a sea-level while in use as a lock canal, but at a considerable
increase of cost.
Colonel Hains said:
This can be done after construction as a lock canal, but in my opinion it
never will be, because the disadvantage of locks is not sufficient to pay the
cost of dispensing with them.
Professor Burr said:
It is also my judgment that it is practicable and feasible to make the canal
on the Panama route a sea-level canal at any time in the future if it is con-
structed at first as a lock canal. This can be done by any one of several
plans, one of which at least would involve certain adaptations of the plan for
à lock canal to the ultimate change to a sea-level canal.
That is, they would build the canal as a lock canal with refer-
ence to afterwards transforming it, in the years to come, into a
sea-level canal.
Another plan would not require that adaptation. The first of the preced-
ing plans of procedure would involve an increased first cost of the lock canal
with less expenditure in the ultimate change to a sea-level canal, while the
second plan of procedure would not necessarily involve any increase in the
first cost of the lock canal, but a greater final cost in changing to the sea-
level canal.
I will not read all the answers to the questions which were put
as to whether the Nicaragua Canal could ever be transformed
into a lock canal. The answers are uniformly in the negative.
Mr. MORGAN. A sea-level canal?
Mr. SPOONER. A sea-level canal. I think I have never heard
it claimed that it can be made a sea-level canal.
Mr. MORGAN. No.
Mr. SPOONER. I do not know how it was with other Sena-
tors, but I had a feeling myself that if we left two-fifths com-
pleted a short canal at Panama and had recourse to Nicaragua,
so much greater in length-an American canal, built by the
United States, controlled by the United States, fortified by the
United States, the guarantor of the neutrality of which being
solely the United States—3cmehow the world would see to it that
5843
17
that short canal is completed and made a world canal, and that
we ought not to leave it, in the interest of our safety, lest some
day in a national exigency our Oregon could not go through our
canal while our enemy's Oregon could go through the world's
short canal.
Upon exhaustive debate, after this report by the Canal Commis-
sion in favor of the Panama route, the Senate passed the alterna-
tive bill, which was intended to be explicit. No one here has said
it is not explicit. It has been said elsewhere. It has not been
accurately or truthfully said anywhere.
Mr. President, I will put in the RECORD, with the permission of
the Senate, the vote for and against the substitute, in order that
my friend the junior Senator from Colorado (Mr. PATTERSON)
may see who constituted what he offensively termed the “ Panama
cabal.''
The result was announced-yeas 42, nays 34, as follows:
YEAS-42.
Aldrich,
Dryden,
Jones, Ark. Pritchard,
Allison,
Fairbanks,
Jones, Nev.
Proctor,
Bard,
Foraker,
Kean,
Quarles,
Beveridge, Foster, Wash.
Kittredge,
Scott,
Burnham,
Frye,
Lodge,
Spooner,
Burrows,
Gallinger,
McComas,
Teller,
Burton,
Gamble,
McCumber, Warren,
Clark, Wyo. Hale,
McMillan,
Wellington,
Cullom,
Hanna,
Mason,
Wetmore.
Deboe,
Hansbrough, Millard,
Dietrich,
Hoar,
Platt, Conn.
NAYS-34.
Bacon,
Cockrell,
Mallory,
Platt, N.Y.
Bailey,
Culberson,
Martin,
Quay
Bate,
Daniel,
Mitchell,
Simmons,
Berry,
Dubois,
Morgan,
Stewart,
Blackburn, Foster, La.
Nelson,
Taliaferro,
Carmack,
Harris,
Patterson,
Turner,
Clapp,
Hawley
Penrose,
Vest.
Clark, Mont. Heitfeld,
Perkins,
Clay,
McLaurin, Miss. Pettus,
NOT VOTING-12.
Depew,
Elkins,
McEnery,
Rawlins,
Dillingham, Gibson,
McLaurin, s.c.
Simon,
Dolliver,
Kearns,
Money,
Tillman.
So Mr. SPOONER's amendment was agreed to.
PROTOCOLS WITH NICARAGUA AND COSTA RICA.
Mr. President, now a word about the protocols to which the
distinguished Senator from Alabama has so often and with so
much earnestness adverted—the protocols which were signed by
the Secretary of State and the ministers of Nicaragua and Costa
Rica, although not particularly pertinent to any point I wish
to make. I want to preserve, when this Congress adjourns,
in full force and vigor the alternative proposition of the canal
act. The Senator from Alabama treats the protocols as bind-
ing compacts between the United States and Costa Rica and
Nicaragua, and he has indicated very clearly the opinion that
because the President did not turn, when, on August 12, the
Hay-Herran treaty was rejected by Colombia, to Nicaragua and
Costa Rica a wrong had been perpetrated upon those Govern-
ments. I do not understand these protocols—and I will refer to
them for only a moment-to constitute any compact between this
Government and those governments.
They were never sent to the Senate by the President. They
found their way into this Chamber through the Senator from
5843 -2
18
1
Alabama, having been transmitted to him by the Secretary of
State for his infurination.
Mr. MORGAN. And for the purpose of being laid before the
Senate.
Mr. SPOONER. Very likely; but they were never sent to the
Congress. That is a new way to transmit for the action of Con-
gress recommendations of the President. But suppose they had
been sent here by the President; they have never been acted upon
by Congress except contingently in the Nicaragua clauses of the
canal act. The Senator vainly sought, as he will remember, to
secure the passage of an act by which he thought they would con-
stitute compacts between the three Governments.
Mr. MORGAN. What act does the Senator refer to?
Mr. SPOONER. My recollection is that the Senator sought
along toward the close of the session to have the protocols ac-
cepted and adopted by resolution.
Mr, MORGAN. I think not.
Mr. SPOONER. If I am mistaken
Mr. MORGAN. I think so.
Mr. SPOONER. I do not think I am, but I defer, of course, to
the Senator's recollection. Now, this is the protocol:
It is agreed between the two Governments-
I do not know whether the other Governments ever acted upon
it or not.
Mr. MORGAN. Yes; if the Senator will allow me, at the time
and in identical terins, between the Governments of Costa Rica
and Nicaragua and the United States. They were separate pa-
pers, but the terms were identical.
Mr. SPOONER. How did they act upon them?
Mr. MORGAN. Separately, each of them.
Mr. SPOONER. Legislatively?
Mr. MORGAN. No; between the President and Mr. Hay and
the ministers of Costa Rica and Nicaragua.
Mr. SPOONER. Well, Mr. President, I do not-
Mr. MORGAN. They were signed, sealed, and interchanged.
Mr. SPOONER. That will not do.
Mr. MORGAN. The fact is so.
Mr. SPOONER. I do not dispute the fact, but I have not un-
derstood that the Secretary of State can make a compact with
another Governinent which binds this Government. I have
drawn a distinction between an exercise of the treaty-making
power and a legislative compact between this Government and
another Government, and certainly no treaty or agreement bind-
ing upon this Government can be made by the Secretary of State
alone.
Mr. MORGAN. I have heretofore referred to the historical
fact-I suppose the Senator merely omitted to notice it—that all
of our great transactions in China were by protocol, and that in
those we carried an invading arıny into Peking; we put our army
under the command of a foreigu general; we entered not only
into military operations, but we levied a fine upon China which
amounted to $35.000.000, if I recollect aright, and we are collect-
ing that money now. And not only were those portocols the only
authority we had, but they were never sent to the Senate except
through the report of the Commission sitting upon these affair's.
authorized by Congress. I believe. There were some of the most
important events in American history that we are now standing
upon as settled facts for which there is no showing in the world
5843
19
but a protocol signed by Mr. Hay or by our minister in China and
the other four or five European powers that were concerned in it,
I suppose that was authority enough.
Mr. SPOONER. Well, Mr. President, I am learning something
all the while, and I know of no one who needs more to learn.
But I had not supposed before that we required any protocol to
warrant us in protecting with cannon and troops the flag of the
United States which floated over the American legation in China.
Mr. MORGAN, Tne Senator cannot impute that to me. I
mentioned it as one of the incidents. How about the levying of
a fine upon China of $25,000,000? How about requiring China to
execute her princes? How about protecting the missionaries and
requiring indemnity to be paid to them? How about arranging
so that China should settle upon the basis of her tariff law under
the protocols?
Of course I know that we can protect our people in any coun-
try in the world under the statutes of the United States. The
statutes have made provision by which we can do that whenever
we are assailed in any part of the world. The President need not
come to Congress for authority to do it. But the President, if he
does not find it in his powers, must come here for authority to
levy a fine of $25,000,000 on China or to cut the heads of Chinese
princes off or to put our general in China under the command of
a foreign general. Matters of that kind I should think of suffi-
cient importance to require them to be laid before the Senate if it
is necessary. It appears not to have been necessary.
Mr. SPOONER. Those were things which are current mat-
ters in administration, which it never occurred to me should
take the form of anything more than an ordinary administrative
agreement, and need not be laid before the Senate at all. I sup-
pose if American citizens are despoiled in any country, and this
covers all the Senator indicates, the President can negotiate for
payment, and the amount being agreed upon it can be made with-
out entering into any treaty on the subject.
But I am talking now about this protocol, which is alleged to
bind the United States and Costa Rica as to a matter of owner-
ship and transfer of territory.
It is agreed between the two Governments that when the President of the
United States is authorized by law to acquire control of such portion of the
territory now belonging to Nicaragua as may be desirable and necessary on
which to construct and protect a canal of depth and capacity sufficient for
the passage of vessels of the greatest tonnage and draft now in use, from a
point near San Juan del Norte, on the Caribbean Sea, via Lake Nicaragua to
Brito, on the Pacific Ocean, they mutually engage-
What-
to enter into negotiations with each other to settle the plan and the agree-
ment, in detail, found necessary to accomplish the construction, and to pro-
vide for the ownership and control of the proposed canal.
They agree, when the President is authorized to build a canal
at Nicaragua, to negotiate an agreement under which it may be
built. It is nothing which gives us any property right. It is
nothing which I think is binding upon either Nicaragua or Costa
Rica, although I have not the slightest doubt both will enter into
an adequate treaty when the time comes, if it shall come; but
they would charge more for it, probably, if there were no com-
petitor.
But how would this be enforced?
Mr. MORGAN. If the Senator would read a little further he
will see.
5843
20
Mr. SPOONER. It continues:
As preliminary to such further negotiations it is forthwith agreed that the
course of said canal and the terminals thereof shall be the same that were
stated in a treaty signed by the plenipotentiaries of the United States and
Great Britain on February 5, 1900, and now pending in the Senate of the United
States for confirmation, and that the provisions of the same shall be adhered
to by the United States and Nicaragua.
Mr. MORGAN. Now, if the Senator will allow me one sec-
ond
Mr. SPOONER. Certainly.
Mr. MORGAN. The language is, “it is forthwith agreed”
that means immediately-as to what the terminals shalĩ be; and
the future rights that we are to acquire under that protocol are
defined in the British treaty, which was then pending before the
Senate-defined simply by reference. It shows exactly what the
rights were. It is a perfectly completed contract, forthwith to
take effect.
Mr. SPOONER. This is an agreement, as I read it, that when
the President is authorized to construct a canal along the line in-
dicated and defined generally in this paper, they will enter into
an agreement under which we may do it. What sort of control
they
would give us is not indicated, how much they would charge
is not indicated; nothing is indicated.
Mr. MORGAN. The control is indicated in the recitals of the
Hay-Pauncefote treaty, in which it is said the control shall be ex-
clusive and perpetual.
Mr. SPOONER. Well, Mr. President, this is all I wanted to
say when I began.
Mr. MORGAN. I should not interpose, but I do not wish a man
of the distinction and ability of the Senator from Wisconsin to
commit himself against the rights of the United States merely in
the heat of debate, because those rights stand here yet, and we
are not going to break them down by anything we do, even by
the ratification of this treaty.
Mr. SPOONER. No.
Mr. MORGAN. We are going to preserve them, and I think
we shall find that we can build two canals cheaper than we can
build a sea-level canal. and one of them will be built at Nicaragua.
Mr. SPOONER. That may be, but, Mr. President, I have not
the remotest doubt that never will anything be done under these
protocols. I have an abiding faith—it is not open to dispute or
doubt--that Nicaragua and Costa Rica, when the time comes, will
be delighted to enter into negotiations with us for a satisfactory
treaty.
Mr. MORGAN. I doubt if they will be delighted, but I know
they will be obliged to do it.
Mr. SPOONER. How would you enforce it?
Mr. MORGAN. I would enforce it in the same way as every
other compact between governments is enforced.
Mr. SPOONER. With guns?
Mr. MORGAN. Well, we can enforce it as easily as we can
build a republic down upon the Isthmus by guns without the fir-
ing of them.
Mr. SPOONER. We shall get to that; the Senator anticipates.
But this is true, whatever construction the Senator may place
upon this—and I do not wish to spend more time upon it-the
President is contingently authorized in the canal act' to build a
canal at Nicaragua, and if that time shall come—and I believe
we shall have two canals some day-then the conditions precedent
5843
21
nained in this protocol--if it is of any force, which I do not be-
lieve-will have been performed.
TFIE PRESIDENT HAS OBEYED IN SPIRIT AND LETTER THE CANAL ACT-
REASONABLE TIME."
reason-
Mr. President, I have said all I wish to say about these two
routes. I have said all I wish to say about this canal act, except
one thing. It has been argued here with some bitterness and
vitriolic rhetoric that the President violated this act in not turn-
ing to Nicaragua after the rejection of the Hay-Herran treaty.
There is not, in my judgment, the slightest shadow of founda-
tion for that contention in the act itself. The words "
able time”-and he was given a reasonable time—are words of
different definition in different cases. What is a "reasonable
time” in one set of circumstances is not “a reasonable time" in
another set of circumstances. As the Supreme Court of the
United States says:
What constitutes “reasonable time" in a particular case must be arrived
at by a consideration of all the elements which affect that question, etc.
(Twin Lick Oil Co. v. Marbury, 91 U. S., 591.)
What is reasonable time is nowhere so determined as to furnish a rule ap-
plicable to all cases. The question is to be ansavered in view of the particular
circumstances of each case, atc. (Sims v. Everhardt, 102 U. S., 309; Gilfillan
v. Union Canal Co., 109 U. S., 404; 18 Central Law Journal, 225-229, 1884; 27
Central Law Journal, 376-380, 1888; 10 Wallace, 129.
Congress, using this phrase "reasonable time" in this connec-
tion, knew that the President was obliged to carry on negotiations
with a Government whose relations with us had made it abso-
lutely certain that it was a Government difficult to negotiate with.
This act contemplated not only the negotiation of a treaty, but
the ratification of a treaty; and, so far as the Senate is concerned,
it doubtless contemplated the fact that the debate on the treaty
would be as long as any Senator in this body might desire it to be.
It is impossible to spell out of this language any limitation of
time, except that limitation which sensible men, wise men, look-
ing at all the circumstances, would say was adequate to accom-
plish an object which the Congress had declared the public inter-
ests required should be accomplished.
When it is shown that until the 31st day of October last-eight
days before the meeting of this Congress in extraordinary session-
there was not only pending in the Colombian Congress a bill to
authorize the President of that Republic to enter into new nego-
tiations on certain lines with the United States, but that a cable-
gram from our minister notified this Goyernment that a new en-
voy would be sent to negotiate a treaty, it became perfectly appar-
ent, Mr. President, that the President has acted entirely within
the language as well as within the spirit of the law.
It was for him to determine-primarily, at least-what was or
what was not a reasonable time.” So long as the Colombian
Congress was in session there remained for it upon this subject a
locus penitentiæ. The President could not have abandoned pre-
cipitately this preferential route-s0 established by act of Con-
gress-without violating the law. I believe if he had abandoned
it, if he had turned away from Panama, if, when the Hay-Herran
treaty was rejected, he had gone to Nicaragua, there would have
been found Senators in this Chamber in the bitterness which
sometimes comes upon us—who would have reprehended the Presi-
dent for his “strenuous' haste in turning his back upon a route
solemnly declared by Congress to be the one which this Govern-
ment's interests required should be selected.
5843
22
SENATE PASSED ON QUESTION OF REASONABLE TIME.
Butsome of our friends on the other side, in their animadversions
upon the President, obviously and strangely forget some things
which occurred in the Senate when the canal bill was pending,
bearing upon this question. Senators opposed to the adoption of
the provisions relating to the Panama route objected to the words,
reasonable time," and sought to eliminate them. They pre-
sented the question, and it was passed upon by the Senate, on the
day the bill passed this body. This did not, it is true, make it
clearer than I think it is now, because the law makes it clear and
common sense makes it clear, having regard to the momentous
character of the transaction and the difficulties and delays which
of necessity would beset it. But it happens that the Senator from
Florida (Mr. MALLORY] offered an amendment to section 4 pro-
viding for the Nicaragua route alternatively, which, if adopted,
would have eliminated the words “reasonable time," the amend-
ment being as follows:
On page 4, line 11, after the words "Section 4,” it is proposed to strike out
all down to and including the word "terms," in line 10, and to insert in lieu
thereof the following:
That should the President be unable, within six months after the ap-
proval of this act, to obtain for the United States, on reasonable terms, a sat-
isfactory title to the property of the New Panama Canal Company and such
control of and jurisdiction over the necessary territory of the Republic of
Colombia mentioned in sections 1 and 2 of this act, including the right to per-
petually maintain and operate the Panama Railroad.
I moved to lay that amendment on the table. It would have
been tantamount to commanding the President to do something,
at the same time putting it in the power of any Senator in this
Chamber to defeat it by prolonging discussion of the treaty beyond
the six months' limit. The vote upon the amendment was as fol-
lows:
YEAS-44.
Aldrich,
Dryden,
Hoar,
Perkins
Allison,
Fairbanky,
Jones, Ark. Platt, Conn.
Bard,
Foraker,
Jones, Nev. Pritchard,
Beveridge, Foster, Wash.
Kenn,
Proctor,
Burnham,
Frye,
Kittredge,
Quarles,
Burrows,
Gallinger,
Lodge,
Scott,
Burton,
Gamble,
McComas,
Spooner,
Clark, Wyo. Hale,
McCumber, Teller,
Cullon,
Hanna,
McMillan,
Warren,
Deboe,
Hansbrough, Mason,
Wellington,
Dietrich,
Hawley,
Millard,
Wetmore.
NAYS–31.
Bacon,
Clay,
McLaurin, Miss. Platt, N. Y.
Bailey,
Cockrell,
Mallory,
Quay,
Bate,
Culberson,
Martin,
Simon,
Berry,
Daniel,
Mitchell,
Stewart,
Blackburn,
Dubois,
Morgan,
Taliaferro,
Carmack,
Foster, La
Nelson,
Turner,
Clapp,
Harris,
Patterson,
Vest.
Clark, Mont. Heitfeld,
Pettus,
The Senator from Florida then reoffered his amendment, with
a limitation of twelve months instead of six, which amendment
was rejected by the following vote:
YEAS-35.
Bacon,
Clay,
Heitfeld,
Pettus,
Bailey,
Cockrell,
McLaurin, Miss. Platt, N. Y.
Bard,
Culberson, Mallory,
Quay,
Bate,
Daniel,
Martin,
Simmons,
Berry,
Dietrich,
Mitchell,
Stewart,
Blackburn,
Dubois,
Morgan,
Taliaferro,
Carmack,
Foster, La.
Nelson,
Turner,
Clapp,
Harris,
Patterson,
Vest.
Clark, Mont. Hawley,
Perkins,
5843
23
NAYS--39.
Aldrich,
Foster, Wash.
Kean,
Pritchard,
Allison,
Frye,
Kittredge,
Proctor,
Burnham,
Gallinger,
Lodge,
Quarles,
Burrows,
Gamble,
McComas,
Scott,
Clark, Wyo.
Hale,
McCumber, Spooner,
Cullom,
Hanna,
McMillan,
Teller,
Deboe,
Hansbrough, Mason,
Warren,
Dryden,
Hoar,
Millard,
Wellington,
Fairbanks,
Jones, Ark.
Penrose,
Wetmore.
Foraker,
Jones, Nev. Platt, Conn.
The Senator from Florida then offered the same amendment,
with the exception that the time was made eighteen months, and
this amendment was rejected without a call of the yeas and nays.
This shows that the Senate did not regard eighteen months as a
reasonable time,'' that it was unwilling to limit the President
in the great work of investigating the canal title and for the
negotiation of a treaty with Colombia for the necessary conces-
sion, and the ratification thereof by the Congress of Colombia and
the Senate of the United States, to eighteen months: that its pur-
pose was to place no time limit upon him in carrying out the will
of Congress, except that involved in the elastic words “reasonable
time. :)
So far as the matter of time is concerned, the Senators who
voted for a limitation of eighteen months are utterly estopped
from consistently charging the President with violation of the
act of Congress by transcending the limit of reasonable time, for
it has happened that within the eighteen months for which they
voted the President has negotiated and sent to this body the treaty
which on the 23d instant we are to act upon, obtaining from the
Republic of Panama, the successor in sovereignty of the Republic
of Colombia, requisite and generous concessions to enable the
United States to build the canal at Panama.
Mr. MORGAN. May I inquire of the Senator what explana-
tion he gives of the statement in the President's message that,
under the surrounding circumstances, the question of reason-
able time" did not enter into the case?
Mr. SPOONER. I have not the language of the President in
mind, but I suppose the President meant what I think unprejudiced
men generally think, that, having reference to our past transac-
tions with the Government with which we had to deal and with
which we had had large experience in negotiation, considering
the distance between this capital and Bogota, and the thousand
other elements entering into it, no man could claim that the ques-
tion of "reasonable time" had ever arisen with this Government
for consideration even, and in that I agree with him.
Congress put this mandate as to a preferential route upon the
President. In making every effort to acquire that route he was
obeying the command of Congress.
Senators inay say that Congress ought not to have passed the
act; that it ought not to have preferred the Panama route. That
is a matter about which men may differ; but having passed it, I
can not for the life of me see upon what basis that is kind or broad
or just any man can accuse the President of having violated this
act for not having gone precipitately to Nicaragua.
Mr. MORGAN. If the Senator will allow me a moment-
Mr. SPOONER. Certainly.
Mr. MORGAN. I have accused the President of the United
States with willfully and openly violating this act. I believe it.
I therefore fall under the denunciation of the Senator
Mr. SPOONER. I did not mean to denounce anyone.
5843
24
Mr. MORGAN. I will say, not the denunciation, but the criti-
cism of the Senator from Wisconsin.
Mr. President, I voted for that act. I did it in good faith. I
did it expecting that every part of it would be executed when the
time came to execute it, and I have felt very deeply aggrieved, as
one of the Senators of this body, in having faith broken with me,
that when the President had the opportun ty to do so he refused
to do it, and said that the question of time did not enter into con-
sideration at all. That only aggravated what I considered to be
an unwarranted breach of faith on the part of the President of
the United States.
Mr. SPOONER. I think the Senator from Alabama voted with
his colleagues in favor of the proposition to strike out the words
reasonable time" and insert - eighteen months."
Mr. MORGAN. I presiune I did. I wanted to put some limit
upon this matter, particularly as the President was not expected,
as the Senator has admitted to-day, to make a selection of these
routes.
Mr. SPOONER. Certainly not.
Mr. MORGAN. That selection was made by Congress-
Mr. SPOONER. Yes.
Mr. MORGAN. And made alternatively. The Senator has
said to-day that the President had not anything to do with the
selection of the route. I wanted, therefore, that the time should
be limited in order that, having submitted this matter to Con-
gress for determination, he might be compelled, according to the
judgment of Congress, to act upon the subject within a limited
date. I did not suggest the proposition. I voted for it, however,
preferring that course to leaving the discretion entirely at the
option of the President, who now says that the question of reason-
able time did not enter into the case.
Mr. SPOONER. He had not reached the point where the ques-
tion of “reasonable time" could enter into the case.
I did not intend to animadvert in any harsh way upon any Sen-
ator here; and if, in the heat of discussion, I did so I withdraw
it; but I can not see how the Senator from Alabama or any other
Senator finds warrant for attack upon the President when he
has carried out fully the mandate of Congress within a time
to which the Senator voted to limit him.
Mr. MORGAN. But he did not act in obedience to the act at
all. He acted contrary to it.
Mr. SPOONER. Well, I do not know what there is in the act
that he disobeyed.
Mr. MORGAN. There is no war with Panama; there is no in-
dependence
Mr. SPOONER. That is another thing.
Mr. MORGAN. There is no independent republic down there
or anything of the sort. It is a simple question of going on and
disposing of the negotiations.
Mr. SPOONER. That is another thing. That has nothing to
do with the question of whether the President violated the canal
act or not.
Mr. MORGAN. I think it has.
Mr. SPOONER. That has to do with the question whether
he violated the Constitution and international law.
Mr. MORGAN. I wish to say that if there ever was a way of
complying with that canal act it was in the mind of the honora-
ble Senator from Wisconsin when he prepared it.
5843
25
Mr. SPOONER. Of course I had no thought when the canal
bill was prepared that this situation would confront the United
States. None of us had, I suppose. The President had not; but
it came.
Mr. PLATT of Connecticut. In any event the President would
have been expected to obtain the Panama route.
Mr. SPOONER. Yes; as the Senator from Connecticut sug-
gests, if we had anticipated it I suppose it would have been ex-
pected that the President would use every honorable and lawful
effort to obtain the Panama route, if not from Colonbia from the
Republic of Panama.
But what I have been discussing, Mr. President, is simply the
question of whether it has been just or in any degree fair, taking
the act itself and the history of it upon that particular phase of
the case, to make this charge against the President. It is so
utterly baseless and without foundation that it should have and
will have no more weight in public estimation than the snowflake
which falls upon one's
coat sleeve.
HAY-FERRAN TREATY AND TREATMENT IT RECEIVED AT BOGOTA.
The Hay-Herran treaty was negotiated with Colombia. That
was in obedience to the mandate of the act. It took a long while
to negotiate it. I think Secretary Hay would be willing to say
that never, in all his splendid career as a diplomat, has he encoun-
tered a negotiation so irritating, such a tax upon his patience,
and so full of variableness, with demands upon demands, always
increasing. The best he could obtain he secured.
I do not think there was a man on either side of the Chamber
who liked that treaty. I did not conceive it possible that Colom-
bia could object to it; but I want to say now, Mr. President, that
I think no government ever was more shabbily treated than was
this Government by the manner in which that treaty was handled
at Bogota.
Colombia sought that treaty. Colombia twice had lodged a
protest against our going to Nicaragua because of the immense
superiority of the Panama route, and because of the detriment it
would be to the interests of Colombia.
In 1902 Colombia, in the treaty with Herrera, a man who had
fought valiantly during three years for reforms in government
and for civil liberty, agreed to take up and submit promptly to
the Colombian Congress the canal negotiation—this treaty signed,
not by President Marroquin, but signed by his cominand by
Doctor Herran, a very able lawyer. What happened the moment
the treaty reached Bogota?
Before the Colombian Congress had been convened to consider
the treaty the Government issued notice, December 24, 1902, to
the New Panama Canal Company in Paris, asking thein, both on
behalf of the New Panama Canal Company and of the Panama
Railroad Company, to appoint an agent at that capital.--
who should be present at the time when the sessions of that high body take
place, provided with ample and sufficient authority and power to deal with
all the points which are to be settled with the company concerning the rights
ani obligations existing between it and this Republic.
Alding:
It will not be superfluous to inform you, in order that you may so notify
the Panama Railroad Company-
The same language was addressed to the canal company-
if you think fit, that the Government will not in any way oppose and,
on the contrary, will second and support the granting of the permission
for the transfer of the concession, but it will demand and require, if there
5843
26
shall be occasion for it, a sum of money which shall be previously agreed upon,
and the cancellation, on the part of the same company, of every (accion) un.
dertaking and obligation which the Government of Colombia has contrácted
by virtue of the concession for the construction of the Panama Railroad-
Also canal
up to date on which it passes to the new concern.
Secretary Hay justly resented this, because, while the treaty
would not be binding on that country any more than on ours until
ratified, upon the exchange of ratifications it relates back to the
time of its signing; and it is settled in international law that pend-
ing the signing of a treaty and its ratification or rejection nothing
shall be done by either government in violation of its terms as a
tentative agreeinent. If Senators will think for a moment they
will see that such an understanding is a necessity to treaty nego-
tiation and obligation.
By the very first article of the Hay-Herran treaty Colombia as-
sented to the transfer to this Government of the canal and rail-
road concessions. Those concessions, with the property which
had been acquired under them, were what we were to buy and
pay $40,000,000 for from the New Panama Canal Company, and
Colombia had insisted upon incorporating in the treaty a provi-
sion that she should be paid at least par for her shares in the
capital of the New Panama Canal Company, no obligation under
the provision, however, to be imposed upon or assumed by the
United States. This meant a payment to her by the canal com-
pany for her consent to the transfer of at least 5,000,000 francs.
I remember the Senator from Alabama inveighed somewhat
bitterly against the attitude in which that clause placed this Gov-
ernment. It was unusual. The Senator from Alabama was not
the only Senator here to whom it was not a welcome provision in
that treaty. It was regretted, and justly regretted, by all that
any corporation could intervene between this country and another
in a great negotiation. But the Congress knew that when the
act passed; the Commission had reported fully upon that; every
Senator knew that preliminary to any work on the Isthmus, no
matter what grants Colombia might be willing to make, was the
elimination by purchase by the United States, with the assent of
Colombia, of the canal concessions and the railway company stock,
with the property which had been acquired under them.
Why was that put there? No one else was to get par for stock.
Colombia had originally exacted this stock for an extension of
time. She had the power, and the time was expiring, to forfeit
the franchise and take to herself the entire property. Of course
it would be a piece of national robbery and shame; but the
company issued 5,000,000 francs of stock, and it was nominated
in this treaty that it should be taken up at least at par. Although
it was not said who was to do it, it was said that we were not to
do it.
What did that mean? It meant that Colombia could refuse to
ratify the treaty or could refuse to exchange the ratification with
us without offense to us until after the canal company or its rep-
resentatives had taken up at par that stock.
But think of a treaty, signed by the diplomatic representatives
of both countries, the first part of which assented to the transfer
to the United States of the canal concessions and property, the rail-
way concession and property, with a provision as to payment for
the redemption of stock at par, and the moment, aye, I think
before, it reached Bogota the papers show, those companies were
5843
27
summoned to provide a representative who would enter into an
agreement with Colombia canceling these concessions which were
to be conveyed to us upon such conditions as Colombia might pre-
scribe! And Senators say we have no cause of compaint against
Colombia, because the treaty was not ratified. I am not talking
about that. I am speaking of the act of the administration there
which negotiated the treaty. It was a gross act of bad faith.
Mr. MORGAN. Marroquin.
Mr. SPOONER. Marroquin. Secretary Hay, with proper in-
dignation, resented it for this Government in these words:
The consent of Colombia to the sale of the canal company's property and
concessions to the United States is a matter of agreement between the two
nations. It has not been granted by Colombia to the company alone, but
also to the United States. To that agreement neither the canal nor the rail-
road company is or can be a party; nor can the United States permit its
international compacts to be dependent in any degree upon the action of any
private corporation. Such a course would be consistent neither with the
dignity of either nation nor with their interests.
To make the effectiveness of the agreement between Colombia and the
United States depend upon the willingness of the canal company to enter into
arrangements with Colombia, of a character satisfactory to that country,
would not only give that company an influence wbich it can never be permitted
to exercise in the diplomaticaffairs and international relations of this country,
but would enable it to control the acquisition by the United States of the
rights granted by Colombia and the enjoyment by Colombia of the equiva-
lent advantages secured to her by the United States.
It may be noted further that such a course would practically nullify Arti-
cle I of the treaty. That article grants an unconditional consent to the sale.
Butif there be added the condition of an agreement between Colombia and the
canal company this consent is wholly nugatory. No such arrangement may
be reached, and in that case Article I of the treaty would never practically
take effect. Such a possibility alone renders any such plan wholly impossible.
Mr. MORGAN. If the Senator will allow me, that was because
the Congress of Colombia, to whom we referred the treaty for
ratification, could not agree with Marroquin about the terms.
Mr. SPOONER. The Congress at that time had not been as-
sembled.
Mr. MORGAN. . What time does the Senator refer to?
Mr. SPOONER. I am talking about an early day after the
treaty got down there. It was before the session of Congress.
Mr. MORGAN. Congress stood on the ground definitely and
distinctly that Marroquin did not have the constitutional power
to make the agreements, and proposed to amend the constitution
so that he would have the power.
Mr. SPOONER. But that was after the Congress met. On
December 24, 1902, this notice was given. Whether Congress had
been elected at that time, I do not know. It did not meet for
some months.
Then, before Congress assembled, the minister of finance. Gen-
eral Fernandez, issued a circular, by direction of the President of
Colombia, saying that “the Government has no preconceived
wishes for or against the measure' and inviting public discussion
of it. Who ever heard of such a thing before-negotiating a treaty
with the Government of the United States, a treaty which was to
enrich, not only in money but in development, a portion of Colom-
bia, and before the Congress assembles the President who negoti-
ated it notifies the country, practically, that he does not care
whether it is ratified or rejected? It would require a government
without much sense of dignity not to consider it an unfriendly
thing.
Mr. MORGAN. That is what I thought about it when I op-
posed the Hay-Herran treaty.
Mr. SPOONER. Yes; I know the Senator thought about every-
1
5843
28
thing that any human being could think about, and therefore
the Senator thought about that.
Mr. MORGAN. It all came around right.
Mr. SPOONER. The only authority they cite in the report of
the Senate committed down there justifying the rejection of the
treaty on constitutional grounds is the distinguished Senator from
Alabama.
Mr. MORGAN. That is not the first case where a certain indi-
vidual has been accused of quoting Scripture.
Mr. SPOONER. That was not a statement that the Senator
made in the Senate. It was an interview. It only shows how
careful we who are in the Senate ought to be about our obser-
vations in public concerning international matters which are
pending.
Mr. MORGAN. Still it does seem, if the Senator will allow me
to suggest it merely, that there was some occasion for having an
agent of the company to provide for that inillion dollars which
we said we did not owe, but which should be paid. Somebody
had to pay it, and if the Panama Canal Company had to pay it,
their agent ought to be on hand to provide the money, it seems to
me, to save the United States from having it to pay.
Mr. SPOONER. If that is what happened, what the Senator
says would be supremely wise. But that is not what happened.
It is one thing to have an agent there to pay the million dollars
and another thing, before action on the treaty, to call agents
there to enter into an arrangement to cancel the very concessions
which were to be transferred, with the consent of Colombia, to
the United States. It is one thing to secure the payment of the
million dollars and another thing to attempt, as a condition of the
ratification of the treaty, to exact froin the owners of the con-
cession and property ten or fifteen million dollars. I think I am
safe in saying that no treaty songht by a Government ever before
received such treatinent as this did by the Government of Co-
lombia, which had songht it. Marroquin refused even to so far
commend the treaty as to sign it before it was sent to Congress.
Mr. MORGAN. I always thought it was a very ungracious
and very ungrateful act on the part of Marroquin, particularly as
the President of the United States had just within a few months
before used the Navy of the United States to hold him in power.
I always thought it was a very ungrateful thing on his part.
Mr. SPOONER. I will get to that after a little. The Senator
speaks "words of truth and soberness." The President of the
United States did use the Navy and the marines---that was the
effect of it-
Mr. MORGAN. To keep him in power.
Mr. SPOONER. To keep him in power; that is, to sustain the
existing government. For fifty years the presence of our war
ships and the intervention, ten or twelve times, of our blue jackets
has maintained the sovereignty of Colombia and barred the door
of hope for liberty, almost of life, against the people of Panama.
Mr. MORGAN. It was claimed to be done under a treaty, you
know.
Mr. SPOONER. I will get to that.
THEIR ALLEGED GROUNDS OK REJECTION MERE PRETEXTS.
I am not going at length into this, but I want to put into the
RECORD some quotations from the dispatches. The Bogota Con-
gress was in session four or five months, and never consid-
ered that treaty five days. They rejected it incontinently. They
5843
29
rejected it practically without debate. They rejected it upon pro-
texts so flimsy as to constitute nothing but a shant--the pretext
that it violated their constitution; that they had no power to alien-
ate territory.
The power to alienate territory is laid down in all the interna-
tional law books to be an inherent element and almost a test of
sovereignty; and to say that a government, a sovereign power,
not bound by restrictions to other countries, has not the power to
grant by treaty a servitude for a great public work is the sheerest
and baldest nonsense.
Mr. MORGAN. Unless it is prohibited from doing it by the
constitution.
Mr. SPOONER. It was not prohibited by the constitution from
doing it. There is a provision in the constitution concerning the
power of the President to contract away “national property
without previous authorization. If he could do it with previous
authorization, and he had contracted it away without previous
authorization, the legislative body could make it valid by ratify-
ing it. But there is a separate provision in their constitution,
entirely distinct, containing provisions as to international nego-
tiations and compacts. It confers upon the President the same
power that our Constitution confers upon our President to con-
duct foreign relations and to negotiate treaties, which are to be
ratified by the Congress. Under that clause it was perfectly
constitutional.
Mr. President, no ground can be found, and I have heard none
suggested, upon which can be predicated a contention that Colom-
bia was not absolutely free, had she so desired, to grant this ease-
ment. And the insincerity of it all is found in the two cable-
gram offers after trouble came in Panama, that if the United
States would resume the old rôle of aiding to fasten the manacles
of slavery and tyranny upon the people of Panama they would
give us the treaty just as it had been signed. Marroquin would
proclaim martial law, and under authority of the constitution,
by decree, ratify the treaty.
So, Mr. President, and I do not mean to speak too harshly of
any government, I am only discussing the situation as it is, we
have had from the beginning trouble with Colombia. I will show
it as I go along. I wish to hurry through this branch. And the
other point upon which they found so much difficulty was that
the treaty provided for a court to be created by the United States,
under authority of the treaty, to sit in the canal strip and decide
cases between citizens of the United States and between citizens
of countries other than Colombia and citizens of the United
States. They alleged it to be an invasion of their sovereignty.
We had expressly recognized the sovereignty of Colombia. Every
line in that treaty, some of them going almost too far for our own
self-respect, safeguarded the sovereignty of Colombia.
But if there is anything settled by our Supreme Court, settled
in the international law books all over the world, it is that it is
entirely competent to agree by treaty for judicial tribunals es
tablished by one of the treaty-making powers within the bound-
ary of another to execute there between its citizens its laws.
The treaty-making power vested in our Government extends to all proper
subjects of negotiation with foreign governments. It can, equally with any
of the former or present governments of Europe, make treaties providing
for the exercise of judicial anthority in other countries by its officers ap-
pointed to l'eside therein. (Ross v. McIntire, 140 U. S., 453.)
Such treaties of jurisdiction as have been made in modern times generally
5843
30
provide for the establishment of special courts for the settlement of such
questions as may arise between foreigners not domiciled (transeuntes), or be.
tween such foreigners and the subjects of the country in which they reside,
or for the exercise of jurisdiction over the same classes of persons by consuls
or commercial agents. Special courts of the typo referred to existed at an
early day under conventions entered into between Great Britain and Portu-
gal. (Taylor's International Public Law, sec. 355, p. 375.)
And the utter folly and insincerity of their contention about
that is shown by the fact that in the act which they proposed,
authorizing a treaty with us, they provided as follows:
ña, Fo: the judging of all causes or litigations, whether the interested par-
ties are foreigners or Colombians and foreigners, the Colombian Government
shall agree with the foreign contracting government upon the establishment,
in the constituted zone, of mixed tribunals with civil, criminal, and admi-
ralty jurisdiction, which tribunals shall be counposed of jurists named in
equal number by each of the two Governments, and the laws and regulations
which they may agree upon shall be in force.
My friend the Senator from Colorado [Mr. TELLER) will see in
a moment that that might be called a concession of sovereignty.
The treaty left the enforcement of the criminal laws for other
tribunals, not to the tribunal provided for by the treaty.
They raised the price, some demanding $15,000,000 from the
United States and $10,000,000 from the canal company, and Lo-
renzo Marroquin, a senator and the son of the President, insisted
upon a total of $35,000,000. After they had rejected the treaty
on August 12 the committee to which the subject had been re-
ferred introduced a bill ratifying the disapproval and prescrib-
ing the terms upon which the Government was authorized to
negotiate with governments and private parties for an interoce-
anic canal (S. Doc. No. 51, 2d sess. 58th Cong.), in which they
provided that Colombia would permit the New Panama Canal
Company to transfer its rights and engagements to any other
government, provided the said company fulfills certain conditions,
as follows:
First. When the transfer is made, the payment to Colombia of
50,000,000 francs, surrender of 500,000 hectares of public land,
Colombia herself to grant a zone 10 miles wide for the sole end
of constructing, maintaining, and operating a canal, etc., the
duration of this right to be for one hundred years, renewable at
option of concessioner for equal periods, with an annual rental
of $150.000 gold up to the year 1967, and $400,000 from 1968 and
thereafter for periods of equal duration, provided the concessioner
agrees "to increase in the proportion of 25 to 100 above the maxi-
mum bases of the preceding period the annual rental sum,”' and
in addition an initial compensation for the granting of the
right," etc., "the contracting government shall pay to Colombia
as a minimum the sum of $20,000,000 in American gold upon the
ratifications of the treaty."
ULTIMATE PURPOSE OF DELAYS AND REJECTION.
But the ultimate and real strategy of the Colombian Congress
is indicated by the following quotation from Minister Beaupré's
letter of September 30, 1903, to Mr. Hay:
It is said, and generally believed in this city, that there is a project on foot
among certain Senators to annul the arrangement entered into by the Colom-
bian Government and the French Canal Company in 1910), extending the fran-
chise and privileges of that company. Even men good enough to be candidates
for president are advocating this action with all seriousness and solemnity. It
is urged that Congress has full power to either annul or ratify the action of
the Government in this matter, and that if the arrangement made extending
the contract is declared null and void, the French company's rights and in-
terests on the Isthmus cease to exist, and Colombia could then arrange with
the United States to receive not only the $10,000,000 offered her, but the
$40,000,000 offered the company.
5843
31
And this scheme found its way into a formal report on the bill
to authorize the President to negotiate a new treaty. We could
not have been a party, of course, to such a scheme of robbery. I
desire to call the attention of the Senate to this report and then
I will be through with this branch of the subject. This record
is a painful one:
The Hay-Herran treaty has ceased to exist, both because of its unanimous
rejection by the Senate and because the time for the exchange of its ratifica-
tions, the 22d of September, has already expired, without any extension hav.
ing been provided or asked for. Consequontly the state of the case is the
same that it was before the conclusion of the treaty.
This is it:
The treaty concluded April 4, 1893, which amended those of March 23,
1878, and December 10, 1890, granted to the New Panama Canal Company an
extension of ten years—that is to say, until December 31, 1904. Consequently,
even without a new extension, the company will be in the full enjoyment of
its rights and privileges until October of the coming year. But there is
another consideration: The legislative decree No. 721 of 1900 granted to tbe
company a new extension of six years, which begins to be reckoned next year
and will end October 31, 1910.
One point now remains to be examined, which has so often been discussed
by the press, a point which, now that the matter is under discussion, should
be defined.
Is the extension granted by that legislative decree valid or not?
They had had for some years the million dollars paid for it.
In the first case-that is to say, if it is considered valid-seven years must
elapse before the extension expires, and therefore any law concerning au-
thorizations seems premature, as three sessions might still be held which
would be able to examine the matter and to legislate concerning it with bet-
ter data and evidence than the present Congress has; and if the extension is
not valid, the aspect of the question changes entirely, and the basis of discussion
will be quite different. By the 31st of October of next year—that is to say, when
the next Congress shall have met in ordinary session—the extension will have
expired and every privilege with it. In that case-
Now they quote from the concession-
"the Republic will become the possessor and owner, without any need of a
previous judicial decision and without any indemnity, of the canvil itself and
of the adjuncts that belong to it, according to the contracts of 1878 and 1900."
When that time arrives the Republic, without any impediment, will be able
to contract,
"The Republic, without any impediment, will be able to con-
tract!"
and will be in more clear, more definite, and more advantageous position
both legally and materiully. The authorizations which would then be given
by the next Congress would be very different from those that can be given
by the present one.
It is seen, therefore, that it is the duty of Congress to decido, as a previous
question that can not be shirked, concerning the validity of the extension
granted in 1900. We venture nothing on the subject, and we respect, in ad-
vance, the decision of Congress in so delicate a matter. Supposing that it
does not ratify said extension, it is well to observe now that it would be nec-
essary to include in the budget the appropriation that would be necessary to
repay to the company the sum of 5,000,000 francs with interest.
Out of the $40,000,000 or the $50,000.000.which—having become
the owner of the whole property by forfeiture and declaration of
the invalidity of the extension Colombia expected to take-she
would pay back to the company the 5,000,000 francs.
Mr. TELLER. Had there been any other extension?
Mr. SPOONER. There had been extensions, but they had all
been paid for and all had been made by the legislature except this
one made by the President while the constitution was suspended
during revolution.
It is no wonder-and Senators ought not to forget this—that Pre-
mier Delcasse, speaking upon this subject in France-and France
knows, as every government is bound to know, what transpires
in the different nations affecting its international interests or
5843
32
affecting the interests of its subjects or its citizens—said that they
could not tolerate that proposed action. It could not be accepted.
By the way, I observe, going over these papers, notwithstanding
the power of the United States, notwithstanding our guaranty un-
der the treaty of 1846, that on more than one of the many occa-
sions when there has been strife on that Isthmus--revolution there
against the tyranny of Colombia--and our war ships were there to
look after the interests of our people and the lives of our people,
French war ships have been there, too. On one of the last occa-
sions the Suchet and the Protet, two French war ships, were
there. They were not far away when the trouble came, and one
of their officers requested of our commanding officer permission to
land his marines to protect the men at work on the canal owned
by the French company. Our officer declined, and he was informed
by the French officer that if he were not permitted to go ashore for
that purpose fault would be found with him by his Government,
and our commander permitted him to do so.
And it is not the first time, either, that the French have landed
men there to look after French interests. With this record of pro-
posed spoliation, with the whole history of Colombia's treatment
of this canal and of the concession—the proposition to forfeit it,
to invalidate the extension, to cut off the French ownership and
take it to Co.ombia as if she had created it-you may find fault
with Mr. Loomis for saying it; you may ask the Senate to reject
the treaty to rebuke what you deem an indiscretion in a sub-Sec-
retary of State, but I have no doubt that if on the 12th day of Au-
gust the President had abandoned the Isthmus of Panama and
had gone to Nicaragua, had kept our ships away from there, there
would have been ships at Colon and at Panama, and they would
not have been our ships.
Mr. MORGAN. What would they have done?
Mr. SPOONER. They would have looked after the interests of
Frenchmen on that Isthmus. Every government worthy of the
name looks after the interests of its people anywhere in the world
when threatened with outrage. We could not permit France or
any other government to take our place on that Isthmus.
Mr. MORGAN. That is what they did when they made that
compact with Panama.
Mr. SPOONER. What who did?
Mr. MORGAN. France.
Mr. SPOONER. What compact?
Mr. MORGAN. Delcasse.
Mr. SPOONER. Oh, Mr. President, what France did was just
what any other gvernment would do. She deferred recogni-
tion until a le quately assured that the new government would
do justice and keep faith as to French interests on the Isth-
That is only an assurance.
It is an assurance which
France believed would be kept. But notwithstanding our guar-
anty of sovereignty and neutrality there, France has a right,
if we fail, to protect the interests of her people. What would
have been said about the President of the United States if
he had negotiated a treaty with Nicaragua in hot haste, with
that impulsive speed which is imputed to him here so glibly,
which he did not happen to possess? There would have been a
French fleet down there looking after French interests, and the
President would have been denounced here for his sacrifice of
American interests.
mus.
5843
33
ened.
TREATY OF 1846, ARTICLE 35.
At last I come to article 35 of the treaty of 1846. I do not look
upon it exactly as some of the Senators do. Article 35 was greatly
desired by New Granada. The minister of the United States ob-
jected very strongly to the insertion of article 35 in a treaty of
commerce and amity. He says:
With these hasty observations, I refer you to the "exposition of motives"
presented by Mr. Mallarino, the secretary of state, in answer to my objec-
tion to including this question in the commercial treaty.
I turn for a moment to the exposition of Mr. Mallarino, who
was the foreign minister. It is a very interesting side light on
this obligation. It contains one sentence that has been strangely
ignored, perhaps compulsorily ignored, as to “a subsequent and
complementary convention in which the transit of the oceanic
passage should be arranged and its permanent neutrality strength-
It has come at last. He speaks of the grasping policy of
Great Britain, how she is attempting to seize the mouth of the
Orinoco, how she is gradually enlarging and strengthening bor
hold upon different portions of South America. how she is corral-
ing, if I may use that word, commercial spots here and there,
which threaten the permanent interest of the United States,
which, in this minister's judgment, bode no good in the long run
to the South American republics.
And continues
From these facts and general considerations may be inferred the urgent
necessity in which the United States are
That is urged from New Granada-
of interposing their moral influence, and even their material strength, be-
tween the weakness of the new republics and the ambitious views of the
commercial nations of Europe, and particularly of Great Britain. This pro-
tecting mediation must have an entirely peaceful and conventional origin,
as its effects would necessarily touch upon, or be referent to, the liberty of
the American seas, and the mercantile interest of this hemisphere, as well in
the exportations of its productions, to be freely exchanged in a free compe-
tition with foreign effects, as for the receipt of these very foreign effects,
which ought to be only lawfully made with equal advantages for all importers.
On account of these reasons, and for the convenience of not awakening in-
ternational jealousies by extraordinary and special treaties, the guaranty of
territorial possession, to be given by the United States, ought to be inciden-
tally introduced in treaties of commerce, as a part of and subordinate to them,
Afraid to do it singly, afraid to put it in a treaty the sole ob-
ject of which it should be, he felt that their interest and ours
required that it should be in a treaty, as I have re:d it, full of
provisions about amity and commerce and reciprocity.
but this should be done so that at the same time that the freedom of the seas
should be assured, the nations of Europe should be compelled to abandon
their anti-American plans, and Great Britain her plans of territorial encroach-
ments; or, in case they should not abandon them, that their trade should
suffer tbe damages consequent on the want of a participation in the fran-
chises that the United States would thus acquire.
This end is simply and naturally to be obtained by stipulating, in favor of
the United States, "the total repeal of the differential duties as a compensa-
tion of the obligation they impose upon themselves of guaranteeing the legiti-
mate and complete or integral possession of those portions of territory that
the universal mercantile interests require to be free and open to all nations."
In the Granadian treaty this guaranty of territorial property and neutrality
would only refer to the provinces of the Isthmus from their southernmost
extremity unto the boundary of Costa Rica.
Then he adds:
When a treaty containing such a stipulation shall exist between New Gra-
nada and the United States-and it could be completed and perfected by a
subsequent and complementary convention, in which the transit of the inter-
oceanic passage should be arranged anil its permanent neutrality strength-
ened-half the plans of Great Britain would fall by themselves, as it would no
5843_-3
34
longer be possible for her to encroach upon the Isthmus nor to free herself
from the rapid consequences of the mercantile inequality under which she
would have to suffer, unless she invited New Granada to alter, upon the same
conditions, the British treaty.
That is the key which unlocks the whole purpose which led to
article 35.
Now, Mr. President, I wish to refer for a moment to this arti-
cle
Mr. CULLOM. Article 35?
Mr. SPOONER. Article 35—to our rights under it and to our
duties under it. I want to show, if I can, that the argument made
on the other side in opposition to this treaty. so far as it is based
on article 35, places the United States in a position of having guar-
anteed the neutrality of the Isthmus, the rights of sovereignty
and property of New Granada, later Colombia, on the Isthmus,
without our acquiring in exchange for it any right whatever, and
worse, perhaps losing the right that all nations without treaty
may exercise, of protecting their citizens or subjects in a country
which can not or will not protect them.
Senators can not read out of article 35 everything that is essen-
tial to the United States and leave in it everything that was put
there for Colombia or New Granada as compensation for a grant.
First. For the better understanding of the preceding articles, it is and
has been stipulated between the high contracting parties that the citizens,
vessels, and merchandise of the United States shall enjoy in the ports of
New Granada, including those of the part of the Granadian territory gener-
ally denominated Isthmus of Panama, from its southernmost extremity until
the boundary of Costa Rica, all the exemptions, privileges, and immunities
concerning commerce and navigation which are now or may hereafter be
enjoyed by Granadian citizens, their vessels and merchandise; and that this
equality of favors shall be made to extend to the passengers, correspondence,
and merchandise of the United States in their transit across the said terri-
tory from one sea to the other.
Now, we come to this language, which some Senators would
practically eliminate from the treaty:
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 hereafter
constructed shall be open and free to the Government-
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 citiz 18 of the United States-
This is a grant of the right of way or transit, not simply to our
commerce, not simply to our citizens, but to the Government of
the United States and the commerce of its citizens-
that no other tolls or charges shall be levied or collected upon the citizens of
the United States, or their said merchandise thus passing over any road or
crinal-
Some one said the other day that a canal was not mentioned in
Article XXXV-
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.
I omit some language that is not pertinent to my discussion.
And, in order to secure to themselves
That is ourselves,
the tranquil and constant enjoyment of these advantages, and as an especial
compensation for the said advantages-
That refers to the right of way or transit, because they say,
and for the favors they have acquired by the fourth, fifth, and sixth articles
of this treaty, the United States guarantee positively and efficaciously to
5843
35
New Granada, by the present stipulation, the perfect neutrality of the be
forementioned Isthmus
Mr. TELLER. Mr. President-
The PRESIDENT pro tempore. Does the Senator from Wis-
consin yield?
Mr. SPOONER. Yes.
Mr. TELLER. If the Senator will look at the third and fourth
he will see that there are some other privileges granted besides
that.
Mr. SPOONER. I know that.
Mr. TELLER. I think that refers to the admission of our
goods into Colonbia, not to transit.
Mr. SPOONER. But if they had referred to that they would
have put the numbers in here. just as they put in fourth, fifth,
and sixth. No man can read this and believe for a moment that
this momentous contract on the part of the United States, which
involved, when the contingency arose, war to protect that Isth-
mus, to maintain its neutrality against foreign governments, the
expenditure of millions of dollars by the United States, and the
spilling of the blood of our soldiers and sailors, was placed in
this Article XXXV for nothing. It is very significant that in his
elaborate "exposition of motives" Mr. Mallarino confines his
argument entirely to article 35, and makes no mention of the com-
mercial phases of the treaty except as a pretext or cover for arti-
cle 35.
Mr. TELLER. Mr. President, if the Senator will allow me
Mr. SPOONER. I was not answering the Senator.
Mr. TELLER. Allow me to say
Mr. SPOONER. I did not intend
Mr. TELLER. I said there were other considerations beside
the transit.
Mr. SPOONER. I was not controverting what the Senator
said. I hope the Senator will do me the favor, because I turn to
him in rather an earnest manner sometimes I can not help it-
not to suppose that I am controverting something he said or
challenging him to controvert something I said. I do not mean
that.
And in order to secure to themselves the tranquil and constant enjoyment
of these advantages and for the favors they have acquired by the fourth,
fifth, and sixth articles of the treaty, the United States guarantees, positively
and efficaciously, to New Grenada by the present stipulation the perfect nou-
trality of the before-mentioned Isthmus-
That is the whole Isthmus. It is described here in the begin-
ning of the article, extending from the southernmost boundary to
the boundary of Costa Rica. It is not simply the railroad transit
or the canal zone.
with the view-
Here is speaking language. Here is expressed the object of this
great contract upon our part, which may mean at any time untold
expense and vast cost in life-
with the view that the free transit from the one to the other sea may not be
interrupted or embarrassed in any future time while this treaty exists, and in
consequence-
Of course it was a consequence-
the United States also guarantee, in the same manner, the rights of sover-
signy and property:which Ņew Granada has and possesses over the said ter-
ritory
!
3043
36
OUR RIGHTS AND OBLIGATIONS UNDER ARTICLE 35, TREATY 1846.
Now, Mr. President, what did we get by that grant, and what
were we to do in consideration of it? We received for the Gov-
ernment and our people as well-defined a right of passage for the
Government and the commerce of its citizens across the Isthmus
by any railroad, highway, or canal as could be placed in an
instrument.
Some one has said that it is a secondary obligation. I think
not. If I guarantee my own contract, that is not secondary. If
the Senator guarantees my contract, that is secondary. The pri-
mary liability is on me; the secondary liability is on him.
Where there is a sovereign grantor there are two elements.
The first is a grant. It is contained in the large word “guarantees.'
A grant of what? A grant of the right of way or transit across
the Isthmus, as is here stated. What is the guaranty in addition
to the grant? It is like the individual warranty of a grant be-
tween man and man in a sense. It is the sovereign grantor's
pledge to make good the grant and to keep it good. It rested with
no other government to make good Colombia's grant of the right
of way for which we were to pay war, millions, and blood for her
protection.
Mr. TELLER. Mr. President. I should like to say to the Sena-
tor that I have not heard anyone dispute the proposition he has
just laid down, that we had the right of transit, and that Colom-
bia had bound herself to protect it.
Mr. SPOONER. That has been challenged. The Senator did
not challenge it.
Mr. TELLER. I did not challenge it, certainly.
Mr. SPOONER. And he will not challenge it. But this propo-
sition has been laid down, that assuming the grant and the sover-
· eign guaranty to make it and keep it good, we had no right under
this treaty to make it good in any event ourselves except on the
request of Colombia.
Mr. TELLER. May I state what I think?
Mr. SPOONER. I am willing. I have no right to refuse the
Senator when he wishes to interrupt me, because I interrupted
him so much the other day.
Mr. TELLER. The Senator is aware that I do not wish to in-
terrupt him unduly. I took some time in the presentation of
this case, and I do not like to be misunderstood on it because
the Senator thinks somebody else took some other view.
Mr. SPOONER. No; I do not doubt the Senator's position.
Mr. TELLER. I think we had the right of transit across that
Isthmus by virtue of this treaty, a right that will last just as long
as the treaty lasts. If the French company had built the Panaina
Canal, which they contracted with Colonbia to build, and if we
had built the Nicaragua Canal, as we attempted to do at one time,
and the two routes had been open, and the Government of the
United States saw fit and wanted to use the Panama route, or if
our citizens did. Colombia's guaranty would have lasted, even if
we had built another canal.
So I think our right under this French canal company was just
as great as it would have been if we had built it, except that we
would not have got a profit perhaps. I mean the right of transit
would have been the same. I did not know that anyone seriously
contended that that was not the fact. I certainly did not.
Mr. SPOONER. I have not understood that the Senator did
contend anything contrary to what I am contending,
5843
37
Mr. TELLER. No; I can not say that I did on that proposition.
Mr. SPOONER. But it has been suggested more than once that
we can only maintain ourselves in that right of way and freedom
of transit on the request of Colombia.
Mr. TELLER. I should like to say again that I was one of
those who contended that it was the first duty of Colombia to
carry out her guaranty, but if Colombia failed to do that, it pre-
sents a very different question as to what we might do then.
Now, I should like to suppose this case. Suppose we built a
canal on the Nicaragua route and the French people had a canal
on the Panama route. I still contend that Colombia could not
shut us out because we bad another way of getting across the
Isthmus; and if she did, what our relations would be and what
our rights would be would be an entirely different question, which
I do not think it is now worth while to go into.
Saturday, February 20, 1904.
Mr. SPOONER. I am mainly anxious, Mr. President, to con-
clude as rapidly as may be the speech which I began on Thursday
last under unusually depressing circumstances.
I think the legislature of Mississippi furnished adequate evi-
dence of intelligence and wisdom by reelecting my friend [Mr.
MONEY] who has just addressed the Senate, and I think we may
assume, without any difficulty, that they were well advised upon
this subject when they passed the resolution through both branches
requesting their
Senators to vote for the ratification of this treaty.
I do not care, Mr. President, at this time to advert to the speech
which the Senator from Alabama (Mr. MORGAN] delivered to-day.
When the bitterness of this time shall have passed, I venture the
prophecy that the Senator from Alabama, perusing it, will find
something in it to regret. Portions of it illustrate pointedly the
truth of the proposition that excess of suspicion is as incompati-
ble with sound judgment as is excess of credulity.
When I surrendered the floor on Thursday I was dealing with
Article XXXV of the treaty of 1846, which is substantially the
heart of all the controversy which has arisen or can arise over this
treaty outside, perhaps, of what may be said as to the terms of
the instrument itself.
I had called attention to the fact-and I do not intend to repeat-
that it was perfectly clear from the exposition of motives confi-
dentially communicated to this Government at that time by Mal-
larino, the foreign minister of New Granada, that the main pur-
pose of the treaty was Article XXXV, and that in the statement
of compensation the provisions or references to articles of the
treaty relating to customs, to reciprocity, to commerce were sim-
ply a cover for the dual obligations of Article XXXV.
New Granada guaranteed to the United States:
The right of way or transit across the Isthmus of Panama upon any modes
of communication that now exist or may be hereafter constructed.
And that it should be free and open to the Government of the
United States, as well as to the citizens of the United States.
That, I contended, and contend, is both a grant by a sovereign
grantor and a guaranty by the sovereign grantor to keep it good.
No man in his senses, Mr. President, can impute to the United
States a willingness to make the guaranty which, in considera-
tion of that grant, this Government made for any more commer-
cial privileges with New Granada.
5843
38
I called the attention of the Senate to the fact that we engaged
as a government to efficaciously maintain during the life of this
treaty the perfect neutrality of the Isthmus and the rights of soy-
ereignty and property of New Granada in the whole Isthmus.
Why? " With the view that the free transit from the one to the
other sea may not be interrupted or emburrassed in any future time
while this treaty exists."
That means that if any foreign government–a South American
republic or a government across the sea-invaded the Isthmus of
Panama this Government stood in honor bound to send there its
war ships and its soldiers to fight in order to keep good this gov-
ernmental pledge.
Right here, Mr. President, it may be truthfully said that while
the United States has not been called upon to protect Colombia
against actual foreign invasion of the Isthmus. the obligation
which she assumed by Article XXXV of the treaty of 1846 to do
so has been of incalculable benefit to Colombia.
It was said by Mr. Fish, in a note to the Colombian minister of
May 27, 1871:
A principal object of New Granada in entering into the treaty is under-
stood to have been to maintain her sovereignty over the Isrhinus of Panama
against any attack from abroad. That object has been fully accomplished.
No such attack has taken place, though this Department has reason to be-
lieve that one has upon several occasions been threatened, but has been
averted by warning from this Government as to its obligations under the
treaty.
In January, 1885, Colombia appealed to the United States to
avert hostilities with which she believed herself to be menaced by
the Government of Italy over the Cerruti case, and this Govern-
ment through Mr. Bayard suggested to Italy the-
serious concern which it could not but feel were a European power to resort
to force against a sister republic of this hemisphere as to the sovereign and
uninterrupted use of a part of whose territory we are guarantors under the
solemn faith of a treaty.
The mere fact that this great Republic, which observes its
treaty obligations at whatever cost, has stood bound for sixty
years to protect the neutrality of the Isthmus and the rights of
sovereignty and property of Colombia therein against foreign
powers has constituted of itself the most powerful preventive of
foreign invasion of the Isthmus. To what extent there would
have been invasion but for this treaty attitnde of the United
States, of course, one may not know, but with knowledge of the
history of Colombian revolutions and the attituđe of at least one
South American Republic, her neighbor, it is easy to be believed
that but for the influence of our promised protection the Isthmus
of Panama would have passed to another South American nation
years ago.
Mr. President, what was our contract? It has been assumed in
this deliate that the President has violated the obligation of this
Government by what has been done by the United States on the
Isthinas. I deny it. There is no obligation resting upon this
Government under Article XXXV except to intervene there for
the maintenance of neutrality and the protection of the rights of
sovereignty and of property of New Granada and her successor,
the Government of Colombia, as against invasion by foreign
powers.
That proposition would need no support in authority, becanse it
is absolutely impossible, unless the language were so explicit as
to permit no escape from the conclusion, to impute to the United
States an obligation to maintain order for Colombia among her
5843
39
own people on that īsthmus. That is what Colombia bound her-
self to do. That was a unilateral contract on the part of Colom-
bia, and in consideration of that came our obligation to stand
between her and foreign aggression.
Nor is that all. Colombia has made various demands upon the
United States during these fifty-seven
years, based now upon one
construction and then upon another of Article XXXV, so far as it
relates to our duty-constructions which sometimes took no ac-
count of the language and which found origin only in the necessi-
ties for the time being of Colombia. First, Colombia claimed as
long ago as 1865, when an expedition from Cauca, one of the States
of the New Granadian Confederacy, was fitted out to invade the
Isthmus of Panama, that she was entitled under this treaty to call
upon the United States, as if Cauca were a foreign power, to pre-
vent that invasion.
The Secretary of State, Mr. Seward, in a letter to Mr. Burton.
under date of November 9, 1865, announced our construction of
the treaty as follows:
DEPARTMENT OF STATE,
Washington, November 9, 1865.
The question which has recently arisen under the thirty-fifth article of the
treaty with New Granada as to the obligation of this Government to comply
with a requisition of the President of the United States of Colombia for å
force to protect the Isthmus of Panama from invasion by a body of insur-
gents of that country has been submitted to the consideration of the Attor-
ney-General. His opinion is that neither the text nor the spirit of the stipu-
lation in that article, by which the United States engages to preserve the
neutrality of the Isthmus of Panama, imposes an obligation on this Govern-
ment to comply with a requisition like that referred to
The purpose of the stipulation was to guarantee the Isthmus against seiz-
ure or invasion by a foreign power only. It could not have been contem-
plated that we were to become a party to any civil war in that country by
defending the Isthmus against another party. As it may be presumed, how-
ever, that our object in entering into such a stipulation was to secure the
freedom of transit across the Isthmus, if that freedom should be endangered
or obstructed, the employment of force on our part to prevent this would be
a question of grave expediency to be determined by circumstances.
WILLIAM H. SEWARD.
Many, many times when there has been trouble on the Isthmus
of Panama-and there has been trouble there only fifty-three times
in fifty-seven years--Colombia has called upon the United States
for help upon the theory that we were bound by this article even
to suppress riots there among her own people. They barbarously
murdered once a large number of Americans in transit there for
money-robbery; and once, Mr. President, so variable, so utterly
absurd, so ignorant and undignified in the treatment of this article
have they been that when a popular consul of the United States died
at Panama and the commander of our war ship sent a band of
music unarmed, with a platoon of marines with guns charged
with blank cartridges, to attend his obsequies, Colombia protested
against it as an attack upon her sovereignty, permission not hav-
ing been obtained; and her officials withheld their presence from
the funeral.
Early in 1866 this was declared by Colombia to be the measure
of our obligations under Article XXXV of the treaty of 1846:
As to the interposition due from the Government of the United States by
the treaty existing between the two nations in the event that an insurrection
by armed force should take place on the Isthmus for the purpose of segregat-
ing it from the Union, the Government of Colombia understands that, if such
a movement should be effected with the view of making that section of the
Republic independent and attaching it to any other foreign nation or power-
that is to say, in order to transfer by any means whatever the sovereignty
which Colombia justly possesses over that territory to any foreign nation
or power whaterer--the case will then have arisen when the United States
of America, in fulfillment of their obligation contracted by the thirty-fifth
5843
40
article of the treaty existing between the two Ropublics, should come to the
assistance of Colombia to maintain its sovereignty over the Isthmus, but not
when the disturbances are confined to Colombian citizens.
Then came the statement of Mr. Fish, a great Secretary of State,
in 1879; and we were summoned first to the rescue under this
treaty in 1856, only eight years after its ratification. Mr. Fish
says:
By the treaty with New Granada of 1846 this Government has ongaged to
guarantee the neutrality of the Isthmus of Panama. This engagement, how-
ever, has never been acknowledged to embrace tho duty of protecting the
road across it from the violence of local factions; but it is regarded as the uno
doubted duty of the Colombian Government to protect it against attacks from
local insurgents.
You are consequently requested to address a representation upon this sub-
ject to the Colombian minister for foreign affairs, and to ask that a sufficient
force be kept on the Isthmus to deter attaclcs upon the road, its ouncers, or
servants.
I can understand from the character of the Colombian admin-
istration how that Government can put forth inconsistent con-
structions of Article XXXV and demand of us, under penalty of
injury to life and property of Americans and interruption of the
transit on the Isthmus, assistance which we are under no obliga-
tion to render, but I confess my surprise that Senators are able
to find in the language of the treaty, against the long-contin-
ued construction placed upon it by distinguished men who have
been called upon to act under it, an obligation on the part of the
United States, upon the request of Colombia or without it, to
maintain order on the Isthmus between contending factions of
that Republic. Colombia, as late as 1881, in the most solemn way
repudiated any such construction. She then proposed to Mr.
Evarts, Secretary of State, a protocol of construction of Article
XXXV, which defined, as she asserted it, the true construction of
the article, as follows:
Second. (a) Concerning the noutrality of and sovereignty of Colombia over
the torritory called the Isthmus of Panama," guaranteed by the United
States of America, according to the paragraph and article cited from the
treaty of 1846, it is understood that said territory is the same as is now om-
braced by the State of Panama in the Colombian Union, and that the noutral
ity and sovereignty guaranteed applies to the whole oxtont
of said territory
(1) The guaranty of neutrality consists in that the United States of
America will prevent by all adequate means, including that of making thon-
solvos belligeronts as allios of tho United States of Colombia, that said terri.
tory be made the theater of hostilities by any foreign power; or if it shall
have taken place, the same not having been opportunoly provonted, the
United States of America will come to the defonso while sala hostilities con-
tinue and compel the responsible (respective power to make due reparation.
(c) Tho guaranty of sovereignty consists in that the Unitod States of
America will provent by all necessary means, including the use of force, that
the territory referred to be made the object of conquest or usurpation, or 0ť
invidious stops tending to separato it from the Colombian Union by any for:-
eign power or unauthorized private expeditions.
Mr. Evarts declined to agree to this protocol, not challeng-
ing the correctness of the construction, which was in harmony
with our own (except as to the words or unauthorized privato
expeditions" which phrase would itself require construction),
upon the ground that the article was plain and that this Govorn-
ment was unwilling either to enlarge it or to diminish it.
Recently Colombia, consistent in her inconsistency, asserts
practically a new demand upon the United States, through Gen-
eral Reyes, her special envoy, who says, in his correspondence
with Secretary Hay:
It may be said that the power of the United States is for the time being
limitless, not only by reason of its laws and its resourcos of every kind, but
also ou account of the respect with which its groatnoss inspires the world.
But in order to deal justly with a weak country this circumstance should
5843
41
be taken into account--that, in stipulating to guarantee "the perfect noutral-
ity and property of the Isthmus," it could not be supposed that the words
neutrality" and "property" could be given any other interpretation than
the technical ono thoy have.
Il, by a coup de main, the revolutionists have snatched from Colombia tho
property of tho Isthmus, it seems natural that the United States, in viow of
the aforesaid stipulation, should return the property to its legitimate owner.
It does not seom right to give the word "neutrality the interpretation that,
by its application, the acts of tlie revolutionists shall bo lolt free, because,
among other reasons, the stipulation contained in the thirty-Alth article
above
quoted excepts no case.
I am utterly unable to find in the language of the treaty ground
for dissent from the construction placed upon it by Mr. Seward,
Attorney-General Speed, Mr. Fish, Mr. Evarts, and several times
in the most formal way by Colombia herself through her officials,
that is to say, an obligation to maintain perfect neutrality on the
whole Isthinus, and the rights of sovereignty and property as
against governments foreign to Colombia.
It is clear to me that Mr. Fish was absolutely correct that under
the treaty it was an essential and vital part of the guaranty of
Colombia that she should at all times maintain a garrison at Pan-
ama and Colon adequate to repress insurrections and disturbances
which involved the freedom of transit. In this view we have rested
under no obligation at any time to land marines upon the Isth-
mus upon the request of Colombia to suppress disorder and vio.
lence among her own citizens. We would have violated no treaty
duty if we had refused upon such a request to do so, but we have
had a twofold ground always upon which we had a right, where
Colombia could not or would not make good her guaranty of free
transit and protect the citizens of the United States within her
domain on the Isthmus from spoliation and loss of life, to land our
marines upon the Isthmus for the forcible protection of American
interests and of our treaty right of free transit, and this latter not
only for the benefit of American commerce and citizens, but of
commerce generally over that transit.
First, the right of way or passage for the Government and for
the commerce of our citizens granted to us by Article XXXV, for
which we incurred an onerous obligation, vested in us a right of
unobstructed passage across the Isthmus, and if Colombia failed
in her guaranty to afford it to us we had a right to maintain it
ourselves.
If my friend from Illinois [Mr. CULLOM] grants to me a right
of passage across his farm or his lot, and I am interfered with by
intruders in its rightful use, I may employ such force as is neces-
sary to enable me to exercise the granted right.
And when Colombia so far derogated from her sovereignty as
to grant to this Government for itself and its citizens a right of
way or transit across the Isthmus from sea to sea, pledging her
power as a sovereign to maintain it, in exchange for a govern-
mental obligation upon our part to maintain, in order to secure
the tranquil enjoyment of the granted right without obstruction
or embarrassment, perfect neutrality on the Isthmus and the
rights of sovereignty and property of Colombia on the Isthmus
against all foreign nations, there inhered in the grant the right to
utilize it, and to use the necessary power to that end, except as
against the Government of Colombia herself. Had she attempted
to prevent its use by us--in other words, to obstruct it as against
us-a different status would have arisen.
Second. Independent of the treaty the United States has pos-
sessed, of course, a right to protect the lives and property of
American citizens, Colombia failing so to do, on the Isthmus.
5843
42
I utterly repudiate the notion which seems to be entertained
here that under no circumstances might we rightfully protect the
transit and other American interests without the preliminary re-
quest of Colombia or her permission. To say that the United
States Government solemnly entered into the obligation to be by
it performed under Article XXXV, involving an expenditure of
unknown millions of money and the lives of its soldiers and ma-
rines, in consideration of a grant of right of way for itself and
citizens across the Isthmus, and is not, under any circumstances,
permitted to protect that right of way, its citizens, and an Ameri-
can corporation in the enjoyment of its property without first
obtaining the request of Colombia would give us at the option of
Colombia in exchange for our obligation nothing.
OPERATIONS ON ISTHMUS UNDER ARTICLE XXXV.
I have thought since I began to study the history of the ad-
ministration of Article XXXV that the obvious necessity for us
to intervene to protect the transit and American interests and
the certainty that we would do so has rendered Colombia quite
indifferent to the seasonable and honest discharge of her own
guaranty and grant of right of way or transit.
Mr. President, I hold in my hand Senate Document 143 of this
session, which contains the history, from the standpoint of the
State and Navy Departments, of the administration of Article
XXXV by Colombia and the United States during the life of the
treaty. Colon and Panama and the transit line across the Isth-
mus have been the home of revolution, riot, and all sorts of dis-
order. Fifty-three times in fifty-seven years there have been
riots, insurrection, attempted revolution, and other public disor-
der. As early as Mav 22, 1850, the record is, “Outbreak: two
Americans killed. War vessel to quell outbreak.” I will incor-
porate in the appendix to my remarks this list, only partial, taken
from the President's message of December 7, 1903.
I can not, of course, go through this administrative history,
but I state accurately that it demonstrates two things:
First, that Colombia has violated this treaty systematically
from the beginning by failing to maintain the transit; that she
has frequently notified us of her inability to do so, and frequently
demanded of us that we discharge, by protecting the transit and
maintaining order on the Isthmus, an obligation which was en-
tirely her own, and which we had not as a government entered
into.
Second, that from beginning to end the heart of the Isthmus
is Colon, Panama, and the line of railway transit and canal con-
struction. These two ports and this line of transit have been the
theater of substantially all the fighting and disorder. As far back
as 1856 this Government was obliged to land troops froin the Inde-
pendence and St. Mary's at the railroad station, and did fand 160
inen from both ships, occupying the station with a field piece. The
following year martial law was proclaimed at Panama, the city was
assaulted by insurgents, and a guard was landed to protect the
consulate, the authorities having agreed, in the expectation of
another attack-
to request, in writing, the commanders of the United States and British
forces in the harbor to land and have joint occupation of the town tempo-
rarily.
In 1861 the intendente-general for Panama inforined our consul-
general at Panama that a lawless expedition was fitting out at
Cartagena to invade the Isthmus, and requested, in the event of
5843
43
its landing at Aspinwall, now Colon, or any other of the Isthmus
ports, the interposition of the United States naval forces to main-
train neutrality and to protect the transit from violence of a law-
less character, which he had every reason to apprehend in case
a landing was effected by the expedition. In the same year Mr.
Seward was notified by the minister from Colombia as follows:
Should the invasion (from Cauca, a part of New Granada adjoining the
Isthmus of Panama) take place, it will become the duty of the authorities of
the country to suppress it by the necessary amount of resistance, and the un-
dersigned apprehends that it may then become indispensable temporarily to
cut off all communication between the Atlantic and Pacific shores, which
would necessarily put a stop to all traffic along the railway. This measure
would doubtless prove very prejudicial to commerce in general, and espe-
cially to that of the United States.
And so we were called on to protect the transit. It is a long
story. Colon has been attacked and burned by insurgents. Pan-
ama has been captured more than once. Ten times we have been
obliged to land marines to protect the transit and the lives and
property of American citizens, and many times the presence of
our war ships there has served to prevent insurrection, and our
intervention through marines has served to put an end to insur-
rection, and to force a surrender of revolutionists to the Gov-
ernment.
I will show, Mr. President, as I go along, that the insurrections
and attempted revolutions on the Isthmus of Panama have not
been by any means in most cases the result of mere lawlessness
or desire for spoliation and plunder. In thirty-three instances
there have been revolutions, attempted independence. revolt
against the sway of the Government at Bogota, not riots. One
of these revolutions lasted for three years. Once during revolu-
tion in Colombia she withdrew all troops from the Isthmus, not-
withstanding imminent danger to the transit, thereby forcing us
to intervene. And whenever there has been fighting there it has
involved and embarrassed the transit and the operation of the
railway. I wish I might call attention to some of these reports of
our consuls and our naval officers to prove this.
There is a report, for instance, of a train stopped at a bridge
until a battle could be fought out at the other end of it; another of
a train run between two contending forces, the soldiers of each
standing with cocked rifles aimed at the train and the passengers.
There was another occasion on which the soldiers on each side of
the railroad, by agreement, stopped firing at each other until the
trains and maiſ could pass through.
It is absolutely impossible for one who familiarizes himself at
all with the geographical situation there and the population, to
fail to realize that in the event of hostilities between Colombia
and her people in that locality, the theater of war must be Colon,
Panama, and the railway and canal lines of transit.
Doctor Nunez, who became dictator in 1885, in his address of
November 11, 1885, to the honorable members of the State dele-
gates, after speaking of the cost of the civil wars of 1876 and 1885,
estimating the former at nine millions in direct damages only
and the latter at double the cost, said:
The State of Panama alone requires a numerous and well-paid garrison, so
as to avoid such occurrences, which have already happened, and which might
endanger our national sovereignty; without this precaution, excluding the
sererer one of cultivating with favorable results our amicable relations with
the Government of North America, which has just given us such a palpable
proof of their good faith.
To the performance of this obligation she has been disgracefullu
5843
44
+
indifferent. Every time during the life of this treaty we have
been forced by her failure to repress disorder to land our marines,
protect the transit and our citizens, she has committed a gross
violation of the obligation which she undertook_by way of grant
and guaranty in Article XXXV of the treaty. For each of these
violations we had a right at our election to denounce and put an
end to the treaty, but our position has been such that, however
gross and systematic her violation might be, we were absolutely
precluded as a Government from exercising our clear right to put
an end to the treaty.
The situation of the United States in this respect has been alto-
gether unique. It is the only treaty obligation, so far as I know.
by which this Government has been thus complicated with another
government. Colombia well understood this. We were without
remedy for her violations of solemn grant and guaranty of free
transit. Had we denounced the treaty of course it would have been
insisted that our right of way or transit across the Isthmus from
the one to the other sea by highway or canal would have fallen
with the treaty. It has been so valuable to our commerce, and of
such consequence for the future, that its surrender was not to be
thought of. Moreover, had we withdrawn from the obligations of
Article XXXV to maintain the neutrality of the Isthmus and the
rights of sovereignty and property of Colombia thereon, some other
government would have undertaken the obligation which we had
cast off. We could not tolerate it under the Monroe doctrine that
any foreign government should occupy the position as to any South
American republic which we have under the treaty occupied as
to Coloinbia on the Isthmus of Panama.
It is not difficult to identify the foreign government which
would have succeeded us. The French Government would have
looked after the immense French interests and French invest-
ments and rights, which. under concessions to Frenchmen. owned
by a French company, had grown up with vast expenditure of
French money on that Isthmus.
And so we have been obliged to go along all these years respond-
ing to the calls of Colombia, contenting ourselves with simple
protest against the infidelity of Colombia in fulfilling her treaty
obligations, sending our war ships there that their presence might
repress insurrection and disorder, protecting by our marines the
lives and property of American citizens, and the safety and free-
dom of the transit.
WE HAVE AIDED COLOMBIA TO OPPRESS THE PEOPLE OF THE ISTHMUS.
And in all this incidentally, although effectively, we have re-
pressed the aspirations of that people for freedom and held them
subject to a tyranny. It has been, Mr. President, from the stand-
point of liberty, a cruel piece of business on the part of the United
States Government, and brought us into a practical partnership
which can not fail to be offensive to right-thinking men. The
failure of Colombia to discharge her obligation has forced us, in
the discharge of a plain duty and in the exercise of a plain right
for the protection of American interests, to become an ally of Co-
lombia against the people of the Isthmus. We have been an in-
strument of tyranny, not daring to cast away the sword of tyranny.
Coinparatively few of our people, in fact very few of the Sena-
tors, have realized or perhaps now realize the extent to which the
United States has been made under this treaty the instrument
of violation of the commonest rights of mankind, in outrage
upon liberty, holding down the heavy hand of Colombian tyranny
5843
45
upon the people of that Isthmus by suppressing insurrection and
rerolution, and maintaining the Bogota authority. The people
of Panama are the same race of people as the people of Bogota.
The Spanish people are not afraid to die. That the spirit of lib-
erty has never been extinguished on the Isthmus the record of
revolts, attempted revolutions, and struggles for independence
abundantly shows. There is not a Senator in this Chamber who,
had he been a Panamaian, would not have been a l ader in these
insurrections and in the struggle for independence so often made
and so often repressed by the power f the United States.
It is not a great while since this Chamber rang with eloquent
voices in favor of liberty. It is not very long, Mr. President,
since burning words were spoken here in denunciation of tyranny
and outrage and wrong upon a people. But I stand here to say
to-day that, with all the Spanish oppression in Cuba until the re-
concentrado days of Weyler, Cuba was a paradise of govern-
mental purity and justice coinpared with the long-continued
condition of Panama ruled from Bogota.
WRONGS OF PANANA.
Up to 1885 Panama was a sovereign state, which with other
sovereign states constituted the Republic of New Granada, then
Colombia. She had her own legislature, enacting her own laws
for domestic administration; she was a sovereign member of a
confederacy of states, not a union. She, with the other states,
had delegated to the Central Government at Bogota certain
powers to be exercised by the President and his cabinet and the
Congress. But two-thirds of the states had the power to overrule
any action of the Congress. She chose her own governor and other
officials. She enjoyed home rule. She conferred, of course, upon
the Central Government the conduct of foreign relations—the
right to make treaties.
But, Mr. President, with 1885 came an entire change in her
status. It was brought about, shortly stated, by a coup d'état of
Doctor Nunez, the President, who set aside the constitution, made
and put in force a new one, in the making of which Panama had
in fact no part or voice, under which he becaine a practical dic-
tator. This constitution established a centralized government
and maintained the statehood of all the States but Panama, and
provided that Congress should have power to regulate the ad-
ministration of Panama.' She lost the right which during all
the years her people had enjoyed of home rule; she lost the power
to legislate for the wants and needs of her own people. She be-
came, Mr. President, a province, a department, under the abso-
lute coinmand and despotism of a government 800 miles away,
having nothing whatver in common with the people of Panama.
Why was this done? Senators may inquire. I can conceive of
no reason except that it was to enable the politicians at Bogota
to reap where they had not sown-to reap a harvest of dollars from
the Isthmus of Panama while leaving only to the people of the
Isthmus a harvest of death. With the cutting of the canal and
the throwing up of the new earth came pestilence that did not
reach the clear air of the mountain plains at Bogota, but they
took the money at Bogota derived from the concessions, and the
people of the Isthmus of Panama faced disease and death in utter
helplessness.
I want to read-for it is the truth, I have verified it as far as possi-
ble; it was read by the distinguished Senator from Indiana (Mr.
FAIRBANKS] 'in the speech which he made-a statement published
5843
46
over the signature of an eminent and frank man at Bogota of the
treatiuent which has been accorded by Colombia to the people on
that Isthmus:
We have converted the lords and masters of that territory (Pavama) into
pariahs of their native soils. We have cut their rights and suppressed all
their liberties unexpoctedly. We have robbed them of the most precious
frculty of a free people-that of electing their mandataries, their legislators,
their judges.
Senators, it is a pitiful thing for a man who has been well-to-
do, it is worse for a woman who has been well-to-do, to be re-
duced to penury, to be compelled to bear, after a life of luxury,
the hardships of poverty. He who has always been a slave knows
little of liberty; but people who have been free, who for number-
less years have been accustomed to govern themselves, to enact
their own legislation, to administer their own laws, feel, of course,
with indescribable keenness reclnction to a condition of absolute
dependence and practical slavery. That was the situation in
Panama.
We have restricted for them the right of suffrage; we have falsified the
count of votes; we have made privalunt over the popular will tho will of a
mercenary soldiery and that of a series of employcos entirely strange to the
interests of the Department; we have taken a way from them the right of
lawmaking, and as a compensation we have put thom under the iron yoke
of exceptional laws: state, provinces, and municipalities have lost entirely
the autonomy which they were enjoying formerly. * * *
Iu towns of a cosmopolitan character of the Isthmus we did not found any
national schools where children could learn our roligion, our language, our
history, and how to love their country. In the face of the world we have
punished with imprisonment, with expulsion, with fines, and whippings the
writers for the innocent expression of the thought. Since Decomber, 1884, to
October, 1913, the Presidents, governors, secretaries, proiects, mayors, chiefs
of police, military chiefs, officials, and soldiers, inspectors of police. the police
itself, captains and surgeons of harbors, inagistrates, judges of all descrip-
tions, State attorneys, everybody came from the high plains of the Andes and
from other parts of the Republic to impose on the Isthmus the will, the law,
or the whims of the more powerful, to sell justice, or speculate with the treas-
ury. This sories of employers, similar to an octopus with its multiple arms,
was sucking the blood of an oppressed people and was devouring what only
the Panamaians had a right to devour.
We have made of the Isthmus a real military province, and when this na-
tion of 350,000 souls had inen of continental reputation like Justo Arosemana,
legislators of the first order, and of an irresistible popularity like Pablo Arose-
mana and like Gil Colunje, mon of talent like Ardila, brilliant diplomats like
Hurtado, and scientific celebrities of European reputation like Sosa we leave
them aside, we relegate them in contempt and in forgetfulness instead of
putting them at the head of the Isthmus in order to quench the thirst of
equity and justice and satisfy the logitimate aspirations of all the Panama-
ians. Such a way of proceeding has wouuded the pride, the dignity, and the
patriotism of all the intellectual people of the Isthmus, and has provoked and
developed the hatred and the anger of the popular mass.
The result is of all those errors--we are touching them now!. The last
twenty years have been for the Panamnians too bitter and too sad, and they
will never in the future like to be Colombians if they have to continue to live
under a régime that did not allow them to be citizens in their own territory.
Senators wonder, when the Congress at Bogota, encouraged by
the Government which negotiated this treaty, locked and barred
the door of hope to the people of the Isthmus, that they rose in
revolt, and seem to think it a strange thing, to be accounted for
only upon an hypothesis which does dishonor to the President.
Who here, had ho been a Panamaian, would not have been a rev.
olutionist? Was anything ever more natural, Mr. President, than
the resolve of the people of that Isthmus in that moment to free
themselves from this tyranny or die?
The Senator from Massachusetts (Mr. LODGE], in the very ad-
mirable speech which he presented on this measure, incorporated
a report in detail of the war taxation extorted from in lividuals in
Panamna by the sword and bayonet. It is one of the most infainous
5843
47
tales of outrage and robbery that ever a people was obliged to
submit to.
Through its own officials, appointed for the Department of Panaina, the
Central Government has appropriated and withheld in the form of loans
from the Department of Panama to the Republic of Colombia a sum of over
$2,000,000), which it refused to repay or recognize as an obligation.
The Government has received from the Panama Canal and the Panama
Railroad Company a total sum of over $15,000,000, of which not a penny has
been applied by the Central Government for improvements in the De-
partment of Panama, savo only the sum of $25,000 per annum expressly pro-
vided by the railroad concession to be paid directly to the Departinent.
And yet, Mr. President, Panama was the narrow strip of land
through which the oceans were to be wedded! It was through
Panama and in the midst of that people that the work of construc-
tion went on. It was the Panama inhabitants who suffered from
the wild men who came from the West Indies to engage in that
work and from the pestilence which came as a consequence of
construction, but every dollar of the $15,000,000 went to Bogota,
upon the plain of the Andes.
Panama is the one Department,
Think of it!
Panama is the one Department in the whole Republic where silver is the
legal tender, the other Departments having a depreciated paper currency in
the ratio of $:30 paper to $i silver. With this palpable difference in money
values the Governinontof Bogota imposes a tax of $10 in silver per head upon
cattle killed upon the Isthmus, while the tax imposed in the other Dopart-
ments is but $3 in paper for the saine privilege, a discrimination of 30 to 1.
What but a spirit of diabolism could devise that? And we have
helped all the years by our action in “protecting the transit
there to make permanent over the people of that Isthmus this
absolutism and robbery!
These taxes and impositions might be endured if the Isthmus had in turn
derived a reasonable part thereof for its own betterment, but the facts of
the case are notoriously the reverse. Not a school has ever been established
by the central government of the Department of Punama, not a college has
been erected, not a bridge or road built in all the territory, not a hospital, not
an asylum for the insure, and not a single work of eleemosynary or humane
character has been founded.
And yet Senators seem to think it an astounding thing that
when the canal treaty failed at Bogota—when it became apparent
that this Governinent was to be held up indefinitely until the
franchise or concession of the New Panama Canal Company, with
its property, could be forfeited, and until the end of a long litiga-
tion or a fight with France, there was to be no canal, no ray of
light--they revolted. Who would not have revolted?
THE REVOLUTION.
Was ever a revolution better justified in the sight of God and
man, Mr. President, than was this one? To say that it was sim-
ply for a canal is to close the eye to the long history of misrule,
violence, tyranny, and robbery. It is to forget that without re-
gard to a canal long ago, but for us, the peopie of the Isthmus of
Panama would have become independent.
I do not intend, Mr. President, to spend much time in dealing
with the details of what occurred on the Isthinus. It is envugh
to say that the revolution evidently had been long in preparation.
On the night of the 3d of November, 1903, there was an uprising.
On the morning of the 4th the people of the Isthmus declared
their independence of Colombia, and a provisional government
lowered the flag of Colombia and raised in its place the flag of the
Republic of Panama.
On the 6th of November the President authorized the repre-
sentative of this Government at Panaina to enter into relations
5543
48
with the new Government, which he proceeded to do. That was
a recognition of a new independent state. It was the recognition
of a fact, for, from the standpoint of international law, inde-
pendence is a fact. On the 13th of November the President for-
mally recognized the Republic of Panama by receiving an envoy
extraordinary and minister plenipotentiary from that Republic.
and a little later appointed, by and with the advice and consent
of the Senate, an envoy extraordinary and minister plenipotentiary
to the Republic of Panama.
The President has been severely and harshly criticised in de-
bate here on various grounds in connection with the birth and
recognition of the new Republic. It has been charged that this
Government incited the revolt. That is but the breath of suspi-
cion. The President needed no defense against such a charge,
but he made haste to place upon the permanent records of the
Government this unqualified denial:
I think proper to say, therefore, that no one connected with this Govern-
ment had any part in preparing, inciting, or encouraging the late revolution
on the Isthmus of Panama, and that save from the reports of our military
and Daval otficers, given above, no one connected with this Government had
any previous knowledge of the revolution except such as was accessible to
any person of ordinary intelligence who read the newspapers and kept up a
current acquaintance with public affairs.
General Reyes, in his correspondence with Secretary Hay, in-
dulged the same intimation, based upon statements in the public
press, which brought from that distinguished official the follow-
ing explicit and final reply:
Any charge that this Government, or any responsible member of it, held
intercourse, whether official or unofficial, with agents of revolution in Co-
lombia is utterly without justification.
Equally so is the insiаuation that any action of this Government, prior to
the revolution in Panama, was the result of complicity with the plans of the
revolutionists. The Department sees fit to make these denials, and it makes
them finally.
These denials from such a source are, of course, conclusive.
Basing the charge upon telegraphic orders to the commanders
of our war ships, which I do not stop to read, but which I insert
as an appendix, it has been elaborately argued and insisted upon
that with undue haste and suspicious anticipation our war ships
were assembled at Colon and Panama. That our officials knew
that revolt was threatened no one can dispute. That it was their
duty to know and be prepared for a situation which would call
for the protection of American interests and rights is self-evident.
It was for that that the Constitution places in the hands of the
Executive the conduct of our foreign relations. It is the duty of
our representatives in foreign ports and places to keep the execu-
tive department advised fully of conditions menacing American
interests and of prospective changes in government. This has
always been so and always will be so so long as executive duty is
intelligently and faithfully discharged.
But, looking through the records, it will be discovered that the
President in this instance can not be charged with undue haste
in assembling at Colon and Panama American ships of war. At
Colon was the third-rate ship the Nashville, and at Panama, the
port at the Pacific end of the transit, there was no American war
ship. Until November 9 American interests were looked after at
Panama by the British war ship Amphion, the Marblehead, which
had been ordered from Acapulco to Panama, having sailed from
that port November 4, reaching Panama November 9. If any
fault can be found in this respect with the executive department,
5843
49
it is for not having seasonably at Panama an American war ship
to safeguard American interests.
But one of the principal, if not the strongest grounds of com-
plaint of the President in his relation to what occurred on the
Isthmus is that he violated Article XXXV of the treaty of 18 16
by preventing the landing of Colombian troops to repress or sup-
press revolution. This charge is based entirely upon the cable-
grams which I insert in the appendix to my remarks. These
cablegrams have been so thoroughly discussed by Senators, in-
cluding myself, on other occasions, that I shall not dwell upon
them at this time. It will be observed that the governing point
in each of them was to maintain free and uninterrupted transit.
There was a situation in which was threatened, because of the
delay of Colombia, being fully warned, to make timely prepa-
ration to carry out her obligation, fierce and long-continued
fighting along the railway and at Colon and Panama, involving
not only stoppage of the transit and commerce, but possibly the
destruction of the transit.
The shelling of Panama by the Colombian gunboat, in violation
of the laws of war, had not the interference of the foreign con-
suls prevented its continuance, might easily have destroyed
through conflagration Panama and all the commercial facilities,
interrupting the transit for months. We were under no obliga-
tion to permit Colombia to destroy or endanger the transit, the
principal benefit which we derived from the treaty of 1846, by a
belated effort to maintain her supremacy on the Isthmus. She
was either too weak to maintain her sovereignty there or relieci
upon us to do it for her, not against any foreign power. but
against her desperate, disappointed, and long-suffering citizens or
subjects upon the Isthmus.
I have said Colombia had been fully forewarned of the immi-
nence of revolution. It had been discussed in the Senate of Co-
lombia in connection with the appointment of Obaldia as gov-
ernor of Panama. It had been reported by representatives from
the Isthmus in the Congress of Colombia on their arrival at
Bogota. Doctor Herran, the chargé representing Colombia at
this capital, had officially warned the Government of the prepara-
tions for revolution. I read from an interview by him in the
Washington correspondence of the New York World, Monday,
January 18, 1904:
Dr. Thomas Herran, the Colombian chargé, was tremendously interested,
and said:
"It is a very interesting story. As to the charge that stock speculating
was at the bottom of the Panama revolution, I can say nothing more than
that I have heard rumors to the same effect. I can talk only on the part of
the story with which I am directly connected, and I wish to correct some
minor details in that, so that no one will be done an injustice."
DUQUE AND HART IN WASHINGTON
Is the beadline.
"That Mr. Duque and Mr. Hart called on me on September 4, immediately
after their conference with Secretary Hay at the State Department, as stated
in the World, is true, but they are not both old friends of mine nor did they
give me one word of information. Mr. Hart is an intimate friend of mine,
and I think a great deal of him."
He was the former minister, I think, at Bogota.
“I do not believe he had any hand in the revolution. He met Mr. Duque
here by appointinent to introduce him to Mr. Hay. I met Mr. Duque casu-
ally two or three times when I was on the Isthmus for a few days waiting for
a steamer, in 1898.
* Mr. Hart and Mr. Duque called on Mr. Hay between 11 and 12 o'clock on
1
58434
50
September 4, and the World's account of what happened at their conference
is correct. Mr. Hay's conduct was absolutely correct, as it always is, and he
made no compromising assertions of any kind. Mr. Hart and Mr. Duque
came from the State Department to call on me. Before they got here I knew
not only that they had been at the State Department, but what had been
said there.
"I gave them every opportunity to tell of their visit to the State Depart-
ment,
but neither of them
referred to it. I gained no information at all from
them and they learned nothing from me, although Mr. Duque seemed to be
trying to 'pump'ma.
* I talked about old times with Mr. Hart and discussed isthmian affairs in a
general way with Mr. Duque. He said there was a great deal of unrest on
the Isthmus, because the treaty which I bad negotiated with Secretary Hay
seemed doomed to defeat, and said that if it was rejected a revolution on the
Isthmus was possible."
Of course, he would not make any very definite statement to
the Colombian diplomatic representative at Washington who had
negotiated the Hay-Herran treaty.
“He told me nothing I did not know, and nothing which was not apparent
to any casual observer on the Isthmus.'
HERRAN WARNED BOGOTA.
"After their departure I verified a few points on which I had not been ab-
solutely certain, and the next day I cabled Bogota. I said that on the pre-
vious day Mr. Duque and Mr. Hart had a long conference with Secretary
Hay, and that if the treaty was not ratified by September 22, when it expired
by limitation, a revolution on the Isthmus was certain and that it would have
American support.
"I sent subsequent cables to my Government along the same line, and fol-
lowed them with long written advices containing the information I had
gathered in New York.
“I did not communicate with detectives after the visit of Duque and Hart,
for I had already made arrangements, chiefly through friends, to cover the
meetings of the revolutionary committee in New York. I did not pay a great
deal of attention to these meetings at first, but during the latter part of Au-
gust I began to take a lively interest in them. I knew who attended all of the
meetings and just what was said by everyone there. I followed these meetings
to the end, and kept my Government fully informed as to what transpired at
them."
Yet, Mr. President, notwithstanding repeated official warnings
from Doctor Herran and the fact that the Government knew that
the only hope of the people of the Isthmus for the future was in
the completion of a canal, Colombia had as a garrison on the
Isthmus 200 soldiers, who went promptly over to the revolution-
ists, and sent only 450, who were permitted to land, but not to
fight on the line of transit, and who, on the evening of the 5th,
took with their officers the mail steamship back to Cartagena.
LANDING OF COLOMBIAN TROOPS HAS BEEN PREVENTED BEFORE.
It will be seen that Colombia had as usual, relying upon the
United States continuing to be an easy victim under this treaty,
the obligation of which she would not herself perform, and which
we dared not denounce, failed to make any adequate provision
whatever to discharge her obligation. Mr. President, even if the
troops which came, inadequate as they were, had been prevented
from landing to fight in Colon or Panama or along the line of
railway it would not have been the first time that such a thing
has been done by the United States at Panama. In 1885, when
Mr. Cleveland was President-it was shortly after his inaugura-
tion, and therefore before he had ceased to be a Democratic
President from the standpoint of a number of Senators on the
other side-there was fighting on the Isthmus along the transit.
Mr. Whitney, Secretary of the Navy, sent a naval expedition to
the Isthmus commanded by Admiral Jouett, and, under date of
April 3, 1885, instructed him as follows:
The object of the expedition is the protection by the United States of its
citizens, to preserve the neutrality and keep open the transit from Colon to
5843
51
+
Panama, and, further, to protect the lives and property of American citizens,
The circumstances, as understood, from which the necessity for the expedi-
tion has arisen are, in general, theta steamship belonging to Americans has
been seized at Colon by an armed force and goods in transit taken from ber,
her officers and the American consul imprisoned, and the transit across the
Isthmus interrupted. With the consequences involved in these past acts you
are not concerned. Your sole duty is confined to seeing that a free and unin-
terrupted transit across the Isthmus is restored and that the lives and prop-
erty of American citizens are protected.
We had several war ships there. The officer in command of
Colombian troops, who were not permitted to land, was Colonel,
now General, Reyes, recently the special envoy of Colombia to
this capital, now in Paris endeavoring to defeat the transfer of
the canal company property to this Government upon the ground
that Panama is still Colombia and that no change has been
wrought in her ownership and sovereignty. I read from the ,
report:
On Monday evening, the 27th, after the departure of the garrison for
Paraiso, the landing party from the Iroquois (which had arrived off Panama
the day before)
came ashore and was quartered for the night on the railroad
wharf. Early Tuesday morning the Boyaca, with the canal tug, hulk Guaya-
quil, schooner, and three whaleboats were seen in the bay.
Lieutenant Reeder was sent to call on the commander in chief to present
my compliments, and to explain, if necessary, more fully the request con-
tained in the following communication:
HEADQUARTERS U. S. NAVAL FORCE ON ISTHMUS OF PANAMA,
Panama, April 28, 1885.
SIR: I have the distinguished honor, in the absence of my commander in
chief, Admiral Jouett, at Colon, to inform you that for the protection of the
transit across the Isthmus, and for the protection of Americans and their
property, I occupy the railroad station at this place with a United States
naval force.
My lines for this purpose necessarily extend from the railroad wharves to
the passenger station at the bridge:
He covered the only landing place.
May I beg leave to request that the national force under your command may
be directed not to land within my lines?
I shall take the first opportunity of paying my respects to you; mean.
while I shall be most happy to place my personal services at your disposition.
I have the honor to be, very respectfully,
B. H. MCCALLA,
Commander, U. S. Navy, Commanding.
Very polite, but it meant" do not land your troops within my
lines, because it would involve fighting along the line of transit,
which we are here to protect."
Colonel Montoya, who had been appointed military and civil chief of the
State of Panama, was on board the Boyaca, as well as Colonel Reyes, the
commander in chief of the military force, which consisted of about 600 men.
During the conversation Colonel Reyes-
Who had made no protest-
stated to Lieutenant Roeder that he was having the entrance to the Rio
Grande, south of the city, examined with the view of finding out whether he
would be able to land his forces in that vicinity.
Some miles from the city.
Rear-Admiral Jouett having come to Panama on the afternoon of Tuesday,
the 28th, on Wednesday Colonels Reyes and Montoya and Aizpuru-
Aizpuru was the general commanding the insurrectionary forces
who had command at Panama, who had been allowed, because of
the absence of national troops, to seize the Isthmus and who was
respecting the transit
met in the railroad office, Rear-Admiral Jouett taking part in the conference.
The conference resulted in an agreement being signed between the repre
sentatives of the Colombian Government and Aizpuru by which the latter
was to surrender.
5843
52
And he did surrender; and the report, which is the report of
Admiral Jouett, continues:
The quasi government represented by Aizpuru having entirely disappeared
with the signing of the capitulation, the reasons which had hitherto male it
imperative-
“The reasons which had hitherto made it imperative”-
to prevent the landing of the Colombian forces within our lines now ceased to
exist. They accordingly landed at the railroad wharf early on the morning
of the 30th, and we were able to facilitate their disembarkation.
Here again the United States, “protecting the transit,” helped
to bring about the surrender of the revolutionists and the rein-
stallation of the Bogota Government. No Comanche war whoop
was heard in the country against President Cleveland " for having
violated a solemn treaty of the United States," and, so far as the
documents show, the action of Admiral Jouett was approved by
the Administration. No one without injustice or almost malice
could criticise that action, because to have permitted those
troops to land meant fighting along the line of transit, with inter-
ruption inevitable and destruction possible.
I wonder if Senators here expect the United States either to de-
nounce the treaty with its rights, and rid herself of the obligation
imposed by it. or to go on forever and, by performing an obligation
which rested upon Colombia, press down in perpetuity upon the
inhabitants of that Isthmus the heavy hand of Colombian tyranny.
There is indubitable evidence in this Senate Document 51 that
Colombia thoroughly knew, as we from all our experience knew,
that there would not be fighting on the Isthmus except along the
line of transit and at Colon and
Panama. I find here a cablegram
from Mr. Beaupré to Mr. Hay, under date November 7, the day
after the recognition of the Republic of Panama, as follows:
As the Government of the United States has war vessels at Panama and
Colon, ininister for foreign affairs has requested me to ask will you allow
Colombian Government to LAND TROOPS AT THOSE PORTS TO FIGHT THERE
AND ON THE LINE OF RAILWAY,
Of course they knew perfectly well that if they could not have
permission to land troops at Colon and Panama to fight at those
ports and along the line of railway, it would be useless to send
them at all for the purpose of subduing revolt.
It must be remembered that about October 16 Lieutenant-
General Young had laid before the President a memorandum as
to what two regular officers, Captain Humphrey and Lieutenant
Murphy, who had just returned from a four months' tour through
the northern portions of Venezuela and Colombia and had stopped
in Panama on their return in the latter part of September, had
reported as to conditions on the Isthmus, as follows:
That while on the Isthmus they became satisfied beyond question that,
owing largely to the dissatisfaction because of the failure of Colombia to
ratify the Hay-Herran treaty, a revolutionary party was in course of organ-
ization, having for its object the separation of the State of Panama from Co-
lombia, the leader being Dr. Richard Arango, a former governor of Panama;
that when they were on the Isthmus arms and ammunition were being smug:
gled into the city of Colon in piano boxes, merchandise crates, etc., the small
arms received being principally the Gras_French rifle, the: Remington, and
the Mauser; that nearly every citizen in Panama had some sort of rifle or
gun in his possession, with ammunition therefor; that in the city of Panama
there had been organized a fire brigade, which was really intended for a revo-
lutionary military organization; that there were representatives of the revo-
lutionary organization at all important points on the Isthmus; that in Pan-
ama, Colon, and the other principal places of the Isthmus police forces had
been organized which were in reality revolutionary forces; that the people
on the Tsthmus seemed to be unanimous in their sentiment against the Bo-
t
53
gota Government and their disgust over the failure of that Government to
ratify the treaty providing for the construction of the canal, and that a revo-
lution might be expected immediately upon the adjournment of the Colom-
bian Congress without ratification of the treaty.
It will be seen that the President was justified in the belief that
the organization for revolution was a powerful one and thoroughly
organized. That it was made up of men who were ready to fight
had been demonstrated too many times to leave it in doubt. No
one can doubt that if the United States had permitted Colombia,
had she so desired, to land a considerable force at Panama and
Colon, any more than Colombia doubted it, as shown by the cable-
gram I have read from Beaupré, there would have been fierce and
protracted fighting in both of the cities and along the line of rail-
way, in which it would have been impossible for us to protect the
property and lives of our citizens and to maintain the freedom of
transit without becoming a participant on one side or the other,
or against both, which no one would have justified.
And thus it happened that while our prior interventions had in-
ured to the benefit of Colombia, there came a time when protect-
ing the transit inured to the benefit of the people who lived along
the line of transit and at either end thereof.
There is no justification for imputing to the President and those
who acted under him a purpose nominally to maintain the transit
and protect American interests and citizens and life and property,
but really a dark, damnable purpose to expel Colombia from
the Isthmus in violation of treaty obligations, and to build up
there an independent republic, from which we could obtain a
canal. It will not do.
It is of no moment that the 450 soldiers who were landed would
not have been permitted to land had the telegraphic orders to the
commander of the Nashville been received at an earlier hour. It
is enough to know that they did land. Nor is there anything of
substance in the complaint that troops were not permitted to
cross the Isthmus on the railway transit. The revolutionists de-
sired that they be transported to Panama, and were ready to fight
them. What was done in this respect was identical with what
was done by Admiral Casey in 1902, without essential criticism
in this country. There is no evidence that Colombia intended to
send troops, or knew that they would be prohibited from landing.
As late as November 12 Beaupré was invited to the palace at Bo-
gota, and asked officially to construe the last clause of Mr. Hay's
telegram of November 6, announcing that we had entered into re-
lations with the Republic of Panama, as to whether it meant that
the United States would not permit the landing of Colombian
troops.
General Reyes states in a communication to Secretary Hay that
being unacquainted, except in an imperfect manner, with the at-
titude assumed by the American war ships he had the honor to
address a note to Rear-Admiral Coghlan, who in reply told him
that, "The present orders are to prevent the landing of soldiers
with hostile intent within the boundary of the State of Panama."
This was the 17th or 20th of November, several days after the
formal recognition of the Republic of Panama. And one may in-
fer from his correspondence that the first information as to the
attitude of the United States in respect of permitting Colombian
troops to land was derived from the publication of the dispatches
themselves in a public document, after his arrival in this country.
It is one thing for Colombia to say that we prevented her landing
5843
54
tr:voi:s which she sent for that purpose; another thing for her to
say that she knows now that if she had sent troops, which she did
not send, they would not have been permitted to land.
All that has been done there would have evoked no criticism in
this country but for the canal. The Senator from Colorado (Mr.
PATTERSON nods his assent. Let me analyze my statement, and
see whether he nods his assent. Everything that has been done
there, I say, would not have been criticised; it would have been
in harmony with what has been done before, without criticism,
but for the canal. Why should it be criticised? If not on its
merits open to criticism had we gone to Nicaragua why should it
be criticised because when liberty came at last to that people and
independence and a power to conserve the education of their chil-
dren and the happiness of themselves it brought also a termina-
tion of the partnership between this country and Bogota and ten-
der of generous terms for the opening of a canal so vital to them?
It seems strange to me that in all this debate Senators who spoke
so beautifully, so eloquently, so tenderly for Cuba have had no word
of sympathy for the degradation and oppression of the people of
Panama; that Senators who hailed with such just delight the dawn
of freedom to the people of Cuba have met with execration and
carping and criticism the dawn of freedom for the oppressed peo-
ple on that Isthmus. Their tenderness and commiseration is for
Colombia alone.
It is suggested that the uprising in Panama was not much of a
revolution. It was enough. No one can read the statement of the
two officers to which I have referred without being convinced that
there was immense strength, fighting strength, behind the revo-
lution. Of course no battles were fought. That is fortunate. It
is not necessary in order to achieve independence through revo-
lution that it should always result from hard-fought battles.
This is not the first time in the history of the world that with due
preparation a coup d'état or a coup de main without bloodshed
has brought independence to a long-suffering people.
The revolutionists are not to be criticised for employing money
to gain support. 'In the corrupted currents of this world,” Mr.
President, struggles for liberty have always possessed phases of
this kind. If an insurrection or attempted revolution fails, it is
a crime; if it succeeds, it is a virtue and an honor.
It is said contemptuously here that the revolution had few
leaders. Is that exceptional? Revolutions have few organizers.
That is the history of the world. That was not peculiar to
Panama.
It was said that the Government of the United States connived
at it, encouraged it, was a party to it. It was darkly hinted over
and over again that something was being held back. Has any-
thing been held back?
Much comment is made upon the fact that a few of these con-
spirators were in the United States! "Conspirators" is not a bad
word in this case. We had them in Boston and other New England
cities and villages in the days of the Revolution. Conspiracy is
not always used in a bad sense. Revolutions are always plots;
they are always deliberately prepared. Some Senator said the
revolution in Panama was hatcħed in the darkness of a back
I do not know whether it was “ hatched” or not; but I
have no doubt it was not plotted in the front room with the
blinds open and the sun shining brightly into the room. What
revolution ever was prepared in that way?
room.
.
5843
55
And they appropriated money that was in the bank to the credit
of Colombia! Why not? It was money of which the people of
Panama had been robbed. They had the same right to take that
money that they had to seize Government cannon or guns or the
gunboats or any other Government property belonging to Co-
lombia.
How strange it is that such observations should be made as to
this revolt on the Isthmus of Panama, and such criticism in-
dulged and wonderment expressed that some of the conspirators
should for a time have found lodgment in this country! The
whole Cuban revolution was plotted in New York. The Cuban
junta conducted their operations from New York, issued bonds
in New York, issued money in New York, and bought guns and
aminunition in New York. There was not one word of criticism
in this Chamber for that, so far as I have ever heard.
Mr. Cleveland said in one of his messages:
Many Cubans reside in this country and indirectly promote the insurrec-
tion through the press, by public meetings, by the purchase and shipment
of arms, by the raising of funds, and by other means which the spirit of our
institutions and the tenor of our laws do not permit to be made the subject
of criminal prosecution.
The man who plans for liberty finds a resting place under every
decent government in the world, the neutrality laws being ob-
served.
CONSTITUTIONAL POWER TO RECOGNIZE IN PRESIDENT.
Among the powers conferred by the Constitution on the Presi-
dent is to "receive ambassadors and other public ministers." To
receive an ambassador or other public minister is the most formal
method of recognizing an independent state. The conduct of our
foreign relations is placed by the Constitution entirely in the
hands of the President. To no other department of the Govern-
ment than the Executive is given the power to deal with foreign
nations or to receive ambassadors and other public ministers.
He is likewise given the power, by and with the advice and con-
sent of the Senate, to appoint ambassadors and other public inin-
isters. It would be a waste of time to support by argument the
proposition that the recognition of independence is, under the
Constitution, an Executive function.
It has been ably argued at other sessions of Congress, has been
exercised as an Executive function from the beginning of the
Government, and is supported both by the decisions of the courts
and the opinions of our leading statesmen. To cite authorities in
support of it is an affectation of learning, and especially since the
presentation in the Senate by the Senator from Maine (Mr. HALE]
of the authorities contained in Senate Documents 40 and 56, Fifty-
fourth Congress, second session. I think in this debate there has
been no challenge, save perhaps one, qualifiedly, that it is an Ex-
ecutive function. Being an Executive function, it is for the
President to determine when to exercise the power.
That a premature and unjustifiable recognition of a revolting
province as an independent state may be taken by the parent state
to be an unfriendly act and a just provocation for war does not
in any wise derogate from the power. One may criticise the wis-
dom of recognition in a given case, but no one can successfully
impeach the validity of the act. It is not a declaration of war by
the President, nor an exercise of intervention. It is but the exer-
cise of a conceded power which may involve the country in war.
(Pomeroy's Constitutional Law, secs. 671, 672.)
5843
56
INTERNATIONAL LAW JUSTIFIED THE PRESIDENT IN INTERING INTO RILA-
TIONS WITH THE REPUBLIC OF PANAMA NOVEMBER 0.
its citizens or any other government could look for protection, or
The President's action in recognizing on the 6th of November
the independence of the Republic of Panama by entering into
relations with it was not only within his power, but was strictly
in accordance with the settled principles of international law
upon the subject. On that date there no longer remained
and
no one can challenge this statement-a vestige of Colombian au-
thority or power on the Isthmus of Panama. The Colombian
troops which had been sent there had sailed away. The govern-
ing power of the Isthmus was a provisional committee, which had
created a temporary government under the name of the Republic
of Panama. It had, it is true, no constitution. It had no laws of
its own enactment, except so far as the governing body, supported
by the people, changed existing laws. It was supported by the
people. It enforced law. It protected life and property.
It had definite boupdaries. “It ruled within the ancient limits
of the former State of Panama, with none within its boundary to
dispute its authority. It had a supreme court. Its municipalities
were in operation. It had an army. It had nearly as much of a
navy as Colombia had. It had the Padilla, one of the strongest
of the naval ships of Colombia. It had a flag, and on that date it
was the only power on the Isthmus to which the United States or
with which it could deal. It was the sole sovereignty there, and
its sovereignty was complete and undisputed. The power of Co-
lombia having been expelled, whether for a long period or a
short one, I would be glad to have some Senator inform me what
principle of international law interdicted the President from en-
tering into relations with the only governing power in existence
on the Isthmus.
Here was in fact independence, and the President's act was
efficacious only to recognize that fact of independence. Between
the 6th and 13th of November, when the President more formally
recognized the independence of the Republic of Panama, no
change had taken place in its status, except that more complete
evidence was afforded from day to day of the enthusiastic support
of that Government by the people and the initiative of proceed-
ings for the framing of a constitution and the establishment of
permanent administration. The Republic of Panama on the 6th
and on the 13th, constituted as it was, answered the definition
given by the international writers of an independent state. Pro-
fessor Woolsey says, page 34, section 36:
A state is a community of persons living within certain limits of territory,
under a permanent organization, which aims to secure the prevalence of jus-
tice by self-imposed laws. The organ of the state by which its relations with
other states are managed is the government.
Vattel adopts this definition of a state:
Every nation which governs itself, under what form soever, without de-
pendence on any foreign power, is a sovereign state.
Phillimore says:
A state may be defined to be a people permanently occupying a fixed ter-
ritory (certam sedem), bound together by common laws, habits, and customs
into one body politic, exercising through the means of an organized govern-
ment independent sovereignty and control over all persons and things within
its boundaries, capable of making war and peace and of entering into all in-
ternational relations with the other communities of the globe.
Pomeroy says, section 50, page 47:
A municipium, civitas, or state, in its strict sense, is an independent po-
litical sãciety, with its own organization and government, possessing in itself
5843
57
inherent and absolute powers of legislation. * * * So far forth as it pos-
sesses the attributes without limit, and so far forth as it has clothed its con-
stituted l'uliyr9 with functions that involve these attributes under limits, it
knows no superior to itself. It is not subordinate to any other political so-
ciety or government. Such a political society is a state; this stato possesses
political sovereignty. It may have any organization, from the purest democ-
racy to the most absolute monarchy; but, considered in its relations to the
rest of mankind and to its own individual members, it must exist to the ex-
tent, at least, of enacting law for itself as an integral commonwealth among
nations,
It must, of course, in some way govern itself and be legally free
from external control over its affairs. It is important here to
note the following from Professor Pomeroy, page 50:
When it is said that every state is independent and sovereign, that is, free
from dependence upon any other authority and having capacity to legislate
fully for itself, we mean legal dependence-dependence according to some
constituted order of things, through which the will of one community may
be legitimately imposed upon another. Moral dependence can not, of course,
be prevented. A weaker nation will often be subjected to an overwhelming
influence from a powerful neighbor that will go far to shape its policy and
suggest, if not dictate, its legislation, but it is none the less legally sovereign;
it has none the less international rights. * * * There must be organiza-
tion, however simple; a government and laws of some form sufficient and
capable of securing at home the observance of rightful relations with other
states. It is certainly not necessary that the people of a state should be homo-
geneous, nor is it essential that all of their laws should be the same through-
out the extent of the national territory.
Professor Woolsey says:
It is scarcely necessary to add that a difference of size and of power neither
adds to nor subtracts from the sovereignty of a state nor affects its rights
in any particular.
Chief Justice Marshall said, speaking of the equality of states
(10 Wheaton, 66), " Russia and Geneva have equal rights,” and so
the United States and the Republic of Panama have, from the
standpoint of international law, equal rights.
Professor Pomeroy upon this subject says:
But this equality is, of course, only legal. It is certainly not moral. Nor
does this equality of rights always shield a weaker nation from unjust de-
mands, oppressive conduct, acts of violence and wrong, at the hands of more
powerful communities.
Of course the laws which were in force on the Isthmus of Pan-
ama prior to the revolution which separated the State from
Colombia would continue in force until changed by the new sov-
ereignty. To permit them to remain in force and to enforce obe-
dience to them was an adoption of them, and in itself an exercise
of sovereignty. By every test laid down by international law
the Republic of Panama on the 6th of November and on the 13th
of November was sovereign and independent. Its internal sover-
eignty was complete; its independence was complete. Recogni-
tion of the fact of independence did not add to its sovereignty or
independence, but operated to admit it, so far as the United
States was concerned, into the family of nations.
I am not at all oblivious to the fact that there is a distinction
between the recognition of the de facto government or adminis-
tration of an independent state and the recognition of an inde-
pendent state. The state is one thing, its government is another.
International law recognizes the right of the people of a nation
recognized as independent to change their form of government.
Revolution may destroy a monarchy and substitute a republic,
or it may destroy a republic operating under a constitution and
substitute for it a dictatorship without destroying at all the
identity of the state as a member of the family of independent
states. In such case instructions to an ambassador or minister
to recognize that government which de facto administers a pre-
5843
58
viously recognized independent state are necessary, and may be
given at once.
It is not a recognition of independence, nor does it commit the
Government to the proposition that the de facto government is a
de jure government. We have had a great number of such in-
stances, of course, in our history. Minister Washburn was ac-
credited to France when she was an empire under Louis Napoleon:
When the Empire was overthrown and the Republic was substi-
tuted for it he was instructed to recognize the new Government,
but the identity of France as an independent nation was not in-
terrupted nor did the recognition of the Republic involve in any-
wise the question of independence. The same thing was true of
Brazil.
But where a state is dismembered by revolution and a revolt-
ing province becomes in fact sovereign it becomes in fact inde-
pendent, and a recognition of the government in such case is a
recognition of the independence of the state. De facto independ-
ence is de jure independence in international law, for States do
not inquire concerning the right or wrong of revolution which
brings independence. In such case the rule as to recognition in
point of conditions and time is different, yet well defined. It is
said by Mr. Wheaton, Lawrence's Wheaton, page 28:
Sovereignty is acquired by a state either at the origin of the civil society
of which it is composed or when it separates itself from the community of
which it previously formed a part and on which it was dependent. This
principle applies as well to internal as to external sovereignty. But an im-
portant distinction is to be noticed in this respect between those two species
of sovereignty. The internal sovereignty of a state does not in any degree
recognition by other states. A new state springing into ex-
istonce does not require the recognition of other states to confirm its inter-
nal sovereignty, Tho existence of the state de facto is sufficient in this re-
spect to establish its sovereignty de jure. It is a state because it exists.
The recognition of a new state, of course, involves delicate and
sometimes difficult questions, so long as the parent state has re-
fused to recognize its revolted subjects. Mr. Pomeroy says, page
302:
Under such circumstances may other nations, disregarding the attitude
of the parent state, take the final step and make a formal, absolute recogni.
tion of the independence, sovereignty, and equality of the new society, thus
treating it, so far as they are concerned, as de jure as well as de facto a stato?
All writers upon international law answer this question in the affirmative,
and assert that such recognition, when properly made, gives no just cause of
offense to the parent state. The universal practice of civilized nations is in
perfect accordance with these doctrines of the publicists. Under what cir-
cumstances, then, is such a formal recognition justifiable?
Speaking of recognition of independence, he says:
This grade of recognition necessarily implies that, in the opinion of the na-
tion recognizing, the revolted community has completely succeeded in estab-
lishing its actual independence, and the parent state has completely failed in
its attempts at coercion, and tbut all further attempts will be equally unsuc-
cessful. There must, therefore, be a very different state of circumstances to
warrant this grade of recognition than is sufficient to justify either of the
lesser grades.
The revolted province must have been able to maintain ite integrity, its
government, its exclusive control, over a definite country. It must have
entirely repelled all attompts of the parent stato to recover that country or
to exercise jurisdiction therein. Further still, the parent state must have
either virtually ceased to make any organizod attempts to recover its hold
and reassert its dominion, or it must be evident that these attempts will be
fruitless. Under these circumstances, if a foreign power grants the formal,
absolute recognition, the parent state will have no ground for complaint.
The effect of such recognition is to admit the new state into the family of
nations and to clothe it with all international rights.
Phillimore sums up the discussion, volume 2, pages 19 and 20:
Speaking generally, two facts should occur before this grave step be taken:
(1) The practical cessation of hostilities on the part of the old state, which
.
V
6843
59
may long precede the theoretical renunciation of her rights over the revolted
member of her former dominions. (2) There should occur the consolidation
of the now state, so far, at least, as to be in a condition of maintaining inter-
national relations with other countries; an absolute, bona fide possession of
independence as a separate kingdom, not the enjoyment of perfect and undis-
turbed internal tranquillity, a test too severe for many of the oldest king-
doms, but there should be the existence of a government acknowledged by
the people over whom it is set, and ready and able to prove its responsibility
for their conduct when they come in contact with foreign nations.
Where such a government as this exists, the question of formal recognition
is rather one which concerns the internal policy of other kingdoms than a
question of an international character. But the refusal or the withholding of
the consent of the old state, after the semblance of a present contest has ceased,
upon the bare chance that she may one day or other recover her authority, is no
legitimate bar to the complete and formal recognition of the new state by the
other communities of the world, though it is most desirable that this recogni-
tion should follow, and not precede, that of the old state. Upon this point
both the reason of the thing and the ancient and modern practice of nations
are quite decisive.
Mr. Dana says, Dana's Wheaton, page 42:
But with reference to a final recognition by a general treaty or by the es-
tablishing of full diplomatic intercourse a more positivo rule can be laid
down. The only test required is that the new stato shall be in fact what the
recognizing state assumes it to be, for it may be conceded, once for all, that
it is among the necessities of nations to bave treaties and diplomatic inter-
course with existing states. The practice of natiuns furnishes the best defi-
nition and limitations of the condition of things in the new state which will
justify such a recognition. It is not necessary that the parent state or the de-
posed dynasty should have ceased from all efforts to regain its power. On the
other hand, it is necessary that the contest should have been virtually decided.
Manning says, page 100:
Public recognition for the purpose of general intercourse on equal terms
of a newly formed, though perhaps not yet Armly established, government.
* * It need only be added here that the recognition of ę de facto govern-
ment no longer actually struggling with its aimed enemies requires very
few special grounds of justification, while active interposition in a contest
still progressing requires vory many.
Hall says, pages 77 and 78:
1. Definitive independence can not be held to be established, and recog.
nition is consequently not legitimato so long as a substantial struggle is be-
ing maintained by the formerly sovereign state for the recovery of its
authority; and that
2. A mere pretension on the part of the formerly sovereign state, or a
struggle so inadequate as to offer no reasonable ground for supposing that
success may ultimately be obtained, is not enough to keep alivo the rights of
the state, and so to prevent foreign countries from falling under an obliga-
tion to recognize as a state the community claiming to have become one.
Historicus says (Creasy, p. 680):
On the other hand, if persons who once owned the relation of subjects have
been able, either by force of arms or otherwise, to divest themselves in a final
and permanent manner of the status of subjects, then diplomatic transac-
tions with such persons afford no justifiable ground of offense to their former
sovereign, nor can they be regarded as a breach of neutrality or friendship.
Lorimer says (vol. 1, p. 24):
That a doctrine of recognition of some sort must form the basis of the posi-
tive law of nations is a subject on which there is, I believe, no difference of
opinion. The de facto existence of the nation being given, that its de juro
recognition by other nations becomes a right inherent in it, and a duty in-
cumbent on them, is an application of the de facto principle, the universal ad-
mission of which
in practice, if not in theory, is one of the strongest historical
arguments for the soundness of the de facto principle itself. So far the rights
of the nation are on a level with the rights of the person, and international
law is on a level with municipal law.
Apply these principles to the Republic of Panama, as it existed
on the 6th and 13th of November, and the justification of the
President's act is complete.
Mr. HOAR. May I ask the Senator from Wisconsin a question
in order that I may understand his proposition?
Mr. SPOONER. Certainly.
1
5843
60
Mr. HOAR. I suppose the Senator does not mean to state that
there is any difference in the power of the President of the United
States in the two cases?
Mr. SPOONER. Oh, no; not at all. The power of the Presi-
dent to recognize the new government of an independent state and
to recognize a new independent state is the same. The one is as
ample as the other. Each is derived from the same language in
the Constitution. Only in international law it is customary, and
perhaps necessary, often to more quickly recognize a changed
government or administration of an independent state than in
the case of a new independent state.
Mr. HOAR. The Senator will pardon me. I did not put the
question as indicating for a moment a doubt on my part of the
correctness of the proposition now made, or because I misunder-
stood the Senator. But I was afraid his sentence, that there was
this great difference between the two, following what he had just
said, might be understood in some quarters to imply a difference
in the powers of the President.
Mr. SPOONER. I have not the slightest doubt that the sen-
tence as I uttered it justly challenged the Senator's attention, and
I thank him for giving me by his question an opportunity to dis-
claim any such thought, because there is no possible distinction
between the President's power in the one case and his power in
the other.
Mr. TILLMAN. Mr. President
The PRESIDENT pro tempore. Does the Senator from Wis-
consin yield to the Senator from South Carolina?
Mr. SPOONER. Yes, sir.
Mr. TILLMAN. The Senator from Wisconsin is discussing a
very important and interesting phase of this subject, and merely
in order to get some light from a legal standpoint I am going to
ask him what are the President's powers, acting under a treaty,
in relation to the preservation of the transit, and the condition
which would arise after the railroad, for instance, or the canal,
or whatever it is, changed its ownership? Now, we were pro-
tecting the transit, but we had a treaty with Colombia. After
we recognized Panama did the same condition exist, and did the
President have the same right in law, international or otherwise,
to preserve the transit?
Mr. SPOONER. I will get to that.
Mr. TILLMAN. Well, I want the Senator to get to it. It is
on this very subject of the President's power. I do not want him
to forget this point.
Mr. SPOONER. I am hurrying to it; but I want to say, in re-
ply to the Senator from South Carolina, that what the United
States did on the Isthmus of Panama in protecting the transit it
would have had an absolute right to do without any treaty in a
country which acknowledged no law and which was either habit-
ually incompetent or unwilling to afford the protection of law to
foreign citizens, their lives, and their property.
Mr. TILLMAN. Does the Senator first appeal to the law and
then to the higher law? Ought we not to confine ourselves to the
one or the other and not take both?
Mr. SPOONER. I was not appealing to any higher law when
I asserted that, independent of the treaty-and I think my friend
the Senator from Colorado [Mr. TELLER), who is a great interna-
tional lawyer, will agree with me--if there had been no treaty, and
t
5843
61
our citizens, with their property and their families, were resident
in a country which was unable or unwilling to enforce law for
their protection, it is inherent in and is the power and duty of the
Government to see to their protection.
Mr. TILLMAN. I will acknowledge that, and the Senator
need not go over my head to the Senator from Colorado. The point
I can not undtrstand is why the Senator first appeals to our treaty
rights with Colombia and then, after I ask him to explain the con-
dition which existed after the treaty died by reason of the sever-
ance of Panama from Colombia, and whether the President then
had any right under the treaty, he jumps onto the inherent right
to protect citizens in jeopardy, and all that kind of thing.
Mr. SPOONER. Mr. President-
Mr. TILLMAN. I am trying to get back to the actual legal
question as toʻwhat were the President's powers and rights with
regard to this spot of ground.
Mr. SPOONER. Before the Senator came into the Chamber I
attempted to show, and I am not going over it again, that under
the treaty, which granted us the right of way or transit and
guaranteed it, if Colombia failed to make that guaranty good,
there inhered in the treaty right the power on our part to utilize
it; and I said that if there were no such treaty right, we would
have the right to do on the Isthmus just what we have done.
Mr. TILLMAN. Mr. President-
Mr. SPOONER. Now, if my friend and I rarely object to his
interruptions, but I have spoken too long-
Mr. TILLMAN, I do not like to interrupt the Senator. He is
tired. I have no doubt he is. for he has been speaking for several
hours. I do not want to trespass on his good nature. I merely
have a little doubt in my mind as to whether we can take advan-
tage of two points of law here. Either we must.confine ourselves
to our treaty rights or we must confine ourselves to the general
international law.
Mr. SPOONER. Does the Senator doubt our right to utilize
the right of way or transit under the treaty?
Mr. TILLMAN. None in the world.
Mr. SPOONER. Very good. If there were no treaty and our
citizens had gone down there, and they were about to be destroyed,
both as to life and property, in a country which did not protect
them, does the Senator doubt our right to protect them?
Mr. TILLMAN. None in the world.
Mr. SPOONER. Then what on earth is the difference between
the Senator and myself?
Mr. TILLMAN. The difference is that the Senator has not
shown yet, and I was trying to get some light in my own mind
as to where the legal right lay. I want to ascertain what right
the President had to warn Colombia not to land troops within
50 miles.
Mr. SPOONER. I think the President had every right, in view
of the history which is in this book, and which, perhaps, the Sen-
ator has not read-and if he has not Ícommend it to him-to warn
Colombia, belated and neglectful after long notice, not to land
troops anywhere on that Isthmus that would bring about speedily
a fight in Colon or Panama or along the line of the railway.
Mr. TILLMAN. Now, Mr. President, if the Senator will allow
me, I can not help
Mr. SPOONER. Just as President Cleveland did in 1885.
5843
62
Oy
Mr. TILLMAN. The point I want the Senator to explain, if
he will, is why at this late day he wastes sympathy-I will not say
he wastes it
Mr. SPOONER. I guess I waste it so far as the Senator from
South Carolina is concerned.
Mr. TILLMAN. On the Panamaians, or whatever you call
them. I will just say the inhabitants of Panama
Mr. SPOONER. That is all right. .
Mr. TILLMAN. If these people were so downtroddon and op-
pressed or such subjects of sympathy and charity and pity, why
did not the United States step forward and say to Colombia,
Here, we are going to take these people under our wing, and we
and for theirs too?" Why did wo wait until after the treaty had
been rejected at Bogota before we found out that those people
were so much oppressed, that they were in such a horrible condi-
tion of being tyrannized over and robbed?
Mr. SPOONER. Doos the Senator deny that ever since 1885
they were deprived of their Government and all that?
Mr. TILLMAN. I do not doubt it.
Mr. SPOONER. Does the Senator deny that they were bru-
tally oppressed?
Mr. TILLMAN. I do not.
Mr. SPOONER. Does he deny-
Mr. TILLMAN. Mind you, I do not admit it, and I do not
deny it, because I have not been there, and I am a little skeptical
about the reports that come here. I think there has been a fear-
ful lot of lying done.
Mr. SPOONER. I think myself there has been a good deal.
As the Senator will neither admit nor deny it
Mr. TILLMAN. I will do this
Mr. SPOONER. Then his answer to my question ought to be,
I do not know."
Mr. TILLMAN. Well, I do not know. But what I want to
find out from the Senator, if he is willing to tell me, is why we
have merely discovered at this late day, after the treaty has been
rejected, that those people at Panama were so terribly oppressed?
Now, if you are going to bring a parallel between our interfer-
once in Cuba and the great good we did those people, and the situ-
ation in Panama, in order to soothe the American conscience in
the action that we have taken in Panama, that is one thing. But
we ought not to play double with ourselves and undertake to de-
ceive ourselves into the belief that we are doing a great and noble
and generous thing in relieving Panamaians from distress and
from oppression. If there was not a canal in it; if-as the Sena-
tor from Massachusetts has graphically and in a dozen lines por-
trayed the situation if the big policeman had not been warned
by this Government that the man under arrest (Colombia) must
hand over the jewels to us, the Senator's argument and all of his
contention would meet my hearty approval.
Mr. SPOONER. Now
Mr. TILLMAN. But with the canal
Mr. SPOONER. Now I will answer the Senator's question.
Mr. TILLMAN. I will sit down.
Mr. SPOONER. · Very well. The Senator seems to be worried
about this proposition only because there is a canal in itin In other
5848
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63
words, to put it concretely, the Senator would say that the people
of Panamà had been for a great many years griovously--
Mr. TILLMAN. Oppressed.
Mr. SPOONER. With unspeakable brutality and greed and
selfishness oppressed. They had, if ever any people had, ground
for revolt. During many years the United States has helped to
fasten the shackles upon them and to maintain the tyranny over
them. At last they revolted. There came a situation where they
were the only governing power on the Isthmus. They established
a government. They called it a republic. They set about the
formation of a constitution. They held the only election that has
been held on the Isthmus for many many years. Their repub-
lic was supported by all the people.
The United States, upon every principle that is dear to us—that
spirit and principle which moved us to go to war for Cuba-obey-
ing every dictate of humanity, according to the Senator, ought to
have recognized it, but the President should not have done this
righteous act because there was a canal in it, notwithstanding the
only hope of prosperity and happiness for tho Isthmians is the
canal. Is that it?
Mr. TILLMAN. That is it from our standpoint, but it ought
not to be it from the standpoint of high morals or honesty.
Mr. SPOONER. Then, Mr. President, it amounts to this: All
that the United States has done down there, that the President
has done, has told for liberty, told for righteousness, told for good,
and is beyond criticism, worthy of all praise, if the President had
only in addition disobeyed the act of Congress and refused, lest the
motive and honor of this country be unjustly attacced, to take the
canal which Congress has commanded him to obtain if he could.
If there is any comfort to the Senator or any of his associates in
that logic, they are welcome to it.
DVIDINOIS 01 STABILITY.
my time.
Mr. President, these interruptions, not pertinent to what I was
considering, and involving repetition, have taken up too much of
The President found a republic well established, with every
reason in the world to regard it as a stable republic. Why? Not
only was there no "substantial struggle'' progressing on the part
of Colombia to reassert her sovereignty, but there was none what-
ever. None had been prepared or attempted, except as evidenced
by the arrival of the 450 men, who quickly sailed away. Colom-
bia, after a three years' war, just ended, was exhausted to the point
of ruin, as General Reyes says in his correspondence with Secre-
tary Hay. Probably he had better opportunities for accurate
knowledge than Senators have. With 4,500,000 people she had an
army of only 10,000 men, as General Reyes says, and probably he
knows.
Colombia is absolutely bankrupt. She has no credit abroad,
and one hundred million or more of irredeemablo paper currency
at home. She has no navy of appreciable efficiency. She is iso-
lated from the Isthmus of Panama, and General Reyes says: “It
is known that there is no overland way to reach Panama with
troops from the interior of Colombia." Nor is that all. Colom-
bia has troubles nearer home. Cauca, the most powerful of her
States, is and has been on the verge of revolt. The same thing
5848
64
can be said of Antioquia, and there are others. Already, in order
to prevent the dismemberment of Colombia, the Bogota Govern-
ment has issued an order to all governors to immediately call for
an expression from their different municipalities as to the urgency
of some constitutional reforms, and as to how they believe these
shall be brought about. (Buchanan, S. Doc. 95, p. 35.)
On the same page will be found a letter, which would be a credit
to any man, from General Triana, the commander of a division,
and actually president of the council of the Department of Cauca,
in which General Triana says:
Since your excellency desired to know my views, I have expressed them
openly and frankly. In the same way it is my duty to inform your excel-
lency, that the indignation is general in the Cauca in consequence of the blun-
ders in Bogota, and that in spite of information which the Government may
have received to the contrary, the idea about separation is almost unanimous.
To crush that opinion not a single battalion could be organized, because the
outcome would be futile. Further, if the Government wishes to keep intact
the integrity of Colombia, instead of attempting the task by the use of bayo-
nets it would be well to empower commissions to carry out the work diplo-
matically, offering something that shall be complied with in administrative
matters of municipal life which does not exist, and of civil and political
liberty.
The events in Panama being accomplished facts, there is, in my opinion,
no other recourse left but to convene å national convention, to be composed
of the leading representatives of all the political parties, in order to come to
an agreement as to a modus vivendi, and contrive to heal the wounds inflicted
on the nation.
In the condition she was in at home, Colombia did not dare send
sufficient troops to attempt the resubjugation of Panama. The
people of the Isthmus had a right to take advantage of the exhaus-
tion and weakness of Colombia, and in considering the question
of recognition the President had no right to close his eyes to the
same condition.
Nor is that all. General Reyes, in his correspondence with
Secretary Hay, recognizes the impracticability of a resubjugation
of Panama. He says:
If Colombia had not suficient force to compel Panama to remain a part of
the national unit it would, without doubt, have asked the mediation of some
friendly country in order to reach an understanding with the de facto gov-
ernment which has been established there.
In the same letter he speaks of the true character of the new
State of Panama, as he does of the dread, because of the example
of the people of the Isthmus, of the “anarchy, license, and disso-
lution which a future dismemberment might occasion." He ought
to know. Nor is that all. In a cablegram from our minister at
Bogota, November 7, there comes from the minister of foreign
affairs of this worn-out, tired-out, bankrupt Government, in many
ways much to be pitied, the desire to be informed whether-
Also, if the Government of the United States will take action to maintain
Colombian right and sovereignty on the Isthmus in accordance with Article
XXXV, the treaty of 1846, in case the Colombian Government is entirely unable
to suppress the secession movement there.
While Senators here are proclaiming glibly and repeatedly that
Panama could not have lived a day had our ships and support
been withdrawn, the Government of Colombia is officially ap-
pealing to us to know if we would not suppress the Republic of
Panama under the treaty of 1846 in contemplation of the entire
inability of Colombia to suppress the secession movement there
herself. Who knows best as to the power of Colombia to retake
that sovereignty, the Senator from South Carolina or the Colom-
bian foreign minister?
MI, TILLMAN. Will the Senator allow me to ask him a ques-
tion?
5843
65
Mr. SPOONER. I made a mistake. [Laughter.]
The PRESIDENT pro tempore. Does the Senator from Wis-
consin yield?
Mr. SPOONER. I do.
Mr. TILLMAN. I have never made any assertion along the
line the Senator has just been speaking.
Mr. SPOONER. Then I withdraw the question so far as it re-
lates to the Senator.
Mr. TILLMAN. But I want to ask the Senator, has not Colom-
bia also notified us that if we would reopen negotiations she would
ratify the treaty and give us everything we wanted?
Mr. SPOONER. Oh, yes. Colombia rejected the treaty upon
the ground that it did not give her what she ought to have within
some twenty-five or thirty million dollars; upon the ground also
that it violated her constitution. She could not make the treaty
with us on the ground also that it diminished her sovereignty by
giving us the right to maintain courts of justice there, before
which our own citizens and the subjects or citizens of other gov-
ernments than Colombia suing our citizens might appear.
She wanted to give us the treaty, but could not, because the
honor of the Government, the oaths of the Congressmen, would not
permitit. But the moment she found that the United States would
not any longer be her ally in tyranny; that there was a concen-
trated, well-prepared revolution pending on the Isthmus, and
realized her weakness, she came to us with characteristic incon-
sistency, saying that if we would play the old rôle again, would
shut out the sun, which is for the first tiine shining in many years
over the people of Panama, and put them back under the tyranny
which has oppressed thein, she would give us the treaty just as it
had been signed. But it was too late.
Mr. TILLMAN. Will the Senator allow me another question?
Mr. SPOONER. Yes, one.
Mr. TILLMAN. I believe the reason why Panama seceded was
because the treaty was rejected. Was not that it?
Mr. SPOONER. If the Senator would only read the declara-
tion of the people of Panama-
Mr. TILLMAN. Oh, we do not want any manifestoes gotten
up in New York.
Mr. SPOONER. The Senator does not want anything except
to have his own way about this business.
Mr. TILLMAN. No; I want to have the right to have my own
ideas about it.
Mr. SPOONER. Is the Senator willing to ignore as a power-
ful element operating upon the people of Panama this long-con-
tinued reign of outrage and robbery?
Mr. TILLMAN. Now, will the Senator allow me to answer
him?
Mr. SPOONER. I have to allow the Senator to answer
Mr. TILLMAN. My idea about this matter is
Mr. SPOONER. But I beg the Senator to be brief.
Mr. TILLMAN. The Senator has proved very conclusively
that there would have been no secession but for tyranny. But
somehow or other that tyranny never came out in the open. We
never heard anything about it until the treaty was rejected. And
now the Senator plays us on both prongs. He takes advantage of
either side of this issue that is presented. It is either tyranny or
it is because the canal treaty was rejected. Now, the Senator
ought to confine himself to one or the other of those issues.
5843-5
66
Mr. SPOONER. I have said that the people revolted because
of the tyranny, because there was but one ray of hope, one path-
way to light out of that darkness, and that was the canal and
through it the consequent prosperity of the Isthmus; and that
when the door was locked upon that canal and all things taken to-
gether they became desperate and resolved to be free or to die, and
if the Senator from South Carolina had been there he would have
been the chief of the conspirators and revolutionists.
Mr. TILLMAN. You have paid me a great compliment.
Mr. SPOONER. When the Senator says I pay him a great
compliment, he speaks the truth, and he adınits unwittingly the
force of all I have said.
Mr. TILLMAN. Lest the Senator's remarks should be taken
too broadly
Mr. SPOONER. It can not be narrow.
Mr. TILLMAN. I want the Senator to recall the fact that I
have had some opinions and I have expressed them about this busi-
ness in a brief way here, and I spoke of the Colombians as a
mangy lot.
Mr. SPOONER. You took it back.
Mr. TILLMAN. No; I did not take it back. I stand by it. I
have never taken it back. The Senator has made them out a heap
mangier lot than I have ever said or thought. Therefore the Sen-
ator can not say that I am undertaking to defend that tyranny
over Panama. I do not. I simply object to the manner in which
the United States has dealt with this matter.
Mr. SPOONER. No, Mr. President, rather than consider this
revolution a movement for liberty, as natural as ever came since
governments were created, to the underlying and palpable justifi-
cation for it, growing out of years of tyranny, the Senator prefers
to pass suspicious squint-eyed judgment upon the President and
to find some theory for it, all against nature, upon which to base
an attack upon a Republican Administration.
Mr. TILLMAN. The Senator discloses his own partisanship in
charging such thoughts to me. But I want to ask him this ques-
tion: Suppose Colombia had not listened to the complaint of the
governor of Cauca—one of her provinces, a constituent State-
would it be our business to go down there and set Cauca up in the
business of a republic?
Mr. SPOONER. No, sir.
Mr. TILLMAN. Now, the Senator inust confine himself to some
limitation somewhere. If it is our business to become a guardian
ad litem for all mixed populations, Latin populations, and others
down in South America and below us to the South, the Senator
oight to say we should do so; and if it is not, why single out the
only one that has a canal and then try to make out that we are
honorably getting in the position we are now in?
Mr. SPOONER. If the Senator can not see the distinction be-
tween our relations to the Isthmus of Panaina for the last sixty
years and our relations to Cauca and Antioquia and other De-
partments of Colombia, I confess my utter inability to give him
light upon that subject.
WHY SHOULD THE PRESIDENT HAVE DELAYED RECOGNITION?
Mr. President, I emphatically assert that when the President
found that Government established, with no struggle for its con-
quest in progress or threatened, exercising sovereignty and juris-
5843
67
diction throughout the Isthmus, enforcing law, protecting prop-
erty-independent in fact-it was his right and his duty to
recognize it promptly, and the facts do not warrant any man in
this country in impeaching either his wisdom or honesty of pur-
pose in so doing.
Now, Mr. President, each state is to decide for itself whether
or not and when it will recognize an independent state. It is a
matter of policy. It depends somewhat upon sympathy. somewhat
upon interest. The question did not present itself to this Gov-
ernment altogether as it did to governments across the sea, which
had no such relation to the Isthmus as we had sustained for nearly
sixty years.
It was right for the President to act promptly, justified by the
sympathy of this people for the downtrodden; by the impossibility
of our denouncing the treaty of 1846, of holding Colombia to the
enforcement of her guaranty, (if continuing to be her ally as an
oppressor of the people of the Isthmus. It involved our dignity
as a government and the safety of the Republic, as a short canal
will double the capacity of our Navy, and enable us to reach more
quickly our coast on the Atlantic or Pacific. It involved the
Monroe doctrine in more ways than one, enabling us through
that short canal to carry more efficiently its protection to the
South American republics on the western coast. It subserved the
interest of every South American republic. In short, there was
every reason of humanity, of sympathy, of international law, of
justice, of reparation, of interest, of safety, why he should recog-
nize the independence of the Republic of Panama.
Why should he have waited, and how long should he have
waited? The unanimity of sentiment among the nations which
followed the example of the United States in this recognition is of
itself an overwhelming evidence, from the standpoint of inter-
national law, that the President's action was correct under its
principles. Seventeen governments proceeded to place the seal
of their approval upon the action of the President, as follows:
List of governments which have recognized the independence of Panama, with
the dates of recognition.
United States.
Nov. 13, 1903 | Nicaragua
Dec. 15, 1903
France
Nov. 16, 1903 Peru
Dec. 19, 1903
China
Nov. 26, 1903 Cuba.
.Dec. 23, 1903
Austria-Hungary.. Nov. 27, 1903 Great Britain
Dec.24, 1903
Germany
Nov. 30, 1903 Italy -
Dec. 24, 1903
Denmark.
Dec. 3, 1903 Japan
Dec. 28, 1903
Russia.
Dec. 6, 1903 Costa Rica.
.Dec.28, 1903
Sweden and Norway Dec. 7, 1903 Switzerland
.Dec. 28, 1903
Belgium..
Dec. 9, 1903
It is unaccountable that the approval of these nations, whose
agreement constitutes international law, should have so little
weight with the distinguished Senators who have so bitterly
attacked the President in this matter.
THE EFFECT OF INDEPENDENCE.
The moment the Republic of Panama became independent, that
moment, from the international standpoint, it was as completely
free from Colombia as if from the beginning of time the Republic
of Panama had existed as an independent nation. Colombia be-
came absolutely a foreign State to the Republic of Panama. Its
people are no longer under the Colombian constitution, and what
legal result follows from that? The Senator from Alabama argues,
and upon my life I can not comprehend such a contention,
that
5843
68
Colombia still owns the canal concession and the railway conces-
sion, and that neither can be transferred to the Government of
the United States without her consent. That is an impossibility,
Mr. President, in law.
The moment the Republic of Panama became sovereign and in
dependent it became the successor in sovereignty and proprietor-
ship to Colombia of the railway concession and the canal concession
as fully as if she had originally granted them. They are all on
territory now a part of her domain. Being independent, Colom-
bia has no more sovereignty over her territory or ownership within
her boundaries than I have over the home of the Senator from
Michigan (Mr. ALGER] in Detroit. It must be admitted, of course,
that so long as Colombia maintained her sovereignty over the
Isthmus she retained her rights of property; no longer. All
money she received by way of rentals from the railroad concession
and for extensions of time to the canal company before Panama
became independent are hers. They were rentals and money re-
ceived by the proprietor during the proprietorship. The owner-
ship by operation of law has changed. It inheres in the sover-
eignty, and when Colombia lost the sovereignty she lost the
ownership, and the nation which acquired the sovereignty acquired
the ownership.
Henceforth the Republic of Panama has alone to deal with the
canal company and its concession, with the railroad company and
its concession. If under the terms of the Wyse concession the
canal coinpany property should become forfeit, would anyone con-
tend that it would become forfeited to Colombia, and that Colom-
bia could sell it, with a right to use it, to some other company or
government? Upon what theory Colombia could acquire prop-
erty under the sovereignty of a foreign government in that way
it is impossible for me to discover. If this be not true, it follows
that although Colombia has lost the ownership which she pos-
sessed by virtue of her sovereignty she is entitled forever, if the
canal were completed, to collect the rents, and although the canal
lies in the territory of another government and under the sover-
eignty and jurisdiction of that government, it is as alien to its
ownership and control as if the Republic of Panama were Great
Britain.
The truth is, in my judgment, that the Republic of Panama
stands as to both concessions as if “ Colombia" were stricken from
the original concessions and the “Republic of Panama” inserted.
It is for her, not Colombia, now to consent or to refuse to consent
to the transfer of the canal concession by the New Panama Canal
Company to this Government. It is for her, not Colombia, to
grant extensions of time to the canal company or to refuse it. It
is for her alone to insist upon forfeitures or to waive forfeitures.
Her title is as complete and absolute as if it were derived by grant
from Colombia. She owns the territory, and she has acquired it
cum onere. It is burdened with the canal concessions; a portion
of it is burdened with a railway concession. She owns the 'prop-
erty, subject to the burdens which were on it when it came to
her through revolution and independence.
.
EFFECT OF INDIPENDENCE UPON ARTICLE XXXV.
What else followed the independence of this State, Mr. Presi-
dent? Upon well-settled principles of international law I insist
that the right granted to the United States by Article XXXV of
the treaty of 1846 constitutes in international law a servitude,
5843
69
recognized in the books and in the operations of governments as
an international servitude, and that the Republic of Panama upon
becoming independent and acquiring the territory took it sutject
to all the servitudes and treaty obligations of Colombia. so far as
they were local in their nature to that territory. In all the refer-
ences in the books to international servitudes the right of way or
right of passage is clearly included. There were some which
are considered an imperfect right, or customary privilege,” but
which when embodied in contract or treaty become rights, and
the right of passage or way across a territory is not only a servi-
tude, but in the nature of a real servitude.
Hall says:
What is true as between the new state and foreign powers is true also as
between it and the old state. From the moment of independence all trace of
the joint life is gone. Apart from special agreement no survival of it is pos-
sible, and the two states are merely two beings possessing no other claims on
one another than those which are conferred by the bare provisions of inter-
national law. And as the old stato continues its life uninterruptedly, it pos-
sesses everything belonging to it as a person which it has not expressly lost;
so that property enjoyed by it as a personal whole, or by its subjects in vir-
tue of their being members of that whole, continues to belong to it. On the
other hand, rights possessed in respect of the lost territory, including rights
under treaties relating to cessions of territory and demarcations of bound-
ary, obligations contructed with reference to it alone, and property which is
within it, and which has therefore a local character, or which, though not
within it, belongs to state institutions localized there, transfer themselves to
the new state person. (Sec. 27, pp. 78, 79.)
Mr. HOAR. Will the Senator permit me to remind him at that
point that our great fishery rights, if it were otherwise than ho
states, would have been extinguished by our revolution on the
one side, or would be extinguished if Canada should separate her-
self from England on the other?
Mr. SPOONER. Of course.
Mr. HOAR. So we are pledged to that doctrine in the strongest
manner.
Mr. SPOONER. Of course; but, Mr. President, I must insert
the authorities without comment:
A state may limit or qualify its sovereignty and jurisdiction over its ter-
ritorial property by permitting a foreign state to perform within its bounds
certain acts otherwise prohibited; or by surrendering the right to exercise
certain parts of its domestic jurisdiction as a protection to others. Restric-
tions thus imposed upon the sovereignty of a state are known'as servitudes,
which may be either positive or negative. (Taylor, sec. 217, p. 263.)
NOTE.-The term servitude is borrowed from Roman law, wherein it sig-
nifies an innocent use as distinguished from a right. In order to convert the
former into the latter, some kind of_contract or stipulation was necessary.
(Justinian's Institutes, II, Title II. De Servitutibus.)
A narrower and more technical rule prevails when the parent state is de-
prived of a portion of its territory which is erected into an entirely distinct
political community. The cogent reasoning in such a case is that as a man who
foses an arm or leg in battle is not thereby relieved of any part of his obliga-
tions, so a state that is so dismembered as to suffer no loss of identity re-
mains bound as before for its entire general indebtedness. "Such a change,'
Halleck says, "no more affects its rights and duties than a change in its in-
ternal organization, or in the person of its rulers. This doctrinë applies to
debts due to as well as from the state, and to its rights of property and treaty
obligations, except so far as such obligations may have particular reference to
the revolted or dismembered territory or province."
In other words, as the old state continues its corporate life without inter-
ruption, it rotains all general state property and all general benefits result-
ing from treaties, with full lia bility for all general obligations with which
the new creation taken from its sido may disavow all legal connection. The
new state on its part carries with it only local obligations, whether contracted
for local objects or secured by a lien on local revenues, and such local duties
as arise out of agreements to maintain the channel of a river or to levy no more
than certain tolls along its course: (Taylor, sec. 168, pp. 203, 204.)
Servitudes may be classified in various ways. They may be “positive,"
consisting "in patiendo," or "negative," consisting “in non faciendo; " "ap-
5843
70
parent” or nonapparent. (Citing Holland's Elements of Jurisprudence, pp.
195, 196. See Klüber's interpretation of a servitude.)
257. International servitutes may be created by express compact, or they
may be based on prescription. International servitudes have the effect of
restraining a state from the full and entire exercise of rights of dominion in
one of two ways: 1. The servitude may prevent the servient state (i. e., the
state which is subject to it) from free action in some particular matter. This
is called a negative servitude–a servitude by which the party on whom the
onus of it lies is under an obligation non facere. 2. A servitude may be a
servitude pati, that is, may impose on the party subject to its onus the duty
of suffering that the party who possesses the right to put the servitude in
force, who has the beneficial jus servitutis, shall be at liberty to do something
on the territory of the servient party which would not be lawful without ex-
press permission if no such servitude existed.
258. Bluntschli gives as instances of the first kind of international servi-
tudes, of servitudes non facere, the following cases:
(a) A state's being under an obligation not to keep up more than a cer-
tain number of troops or of ships of war, or not to fortify certain places
within its own territory.
(6) The obligation of a state to abstain from exercising any or full juris-
diction over the subjects of some other state within its territories.
(c) The obligation to levy no duties, or only duties according to a specified
limited scale, on things imported by specified foreigners, or on specified for-
eign articles.
(a) The obligation on a state not to set up custom-houses on its territory
along the frontier of some other state.
259. He gives as instances of international servitudes of the other class
(servitudes pati) to which a state may be liable:
(a) The being obliged to allow passage of the troops of another state
through its territories or any portion of them.
(6) The being bound to suffer the trops of another state to occupy any
portion of the territory of the servient state; or to allow another state to ex-
ercise jurisdiction, or to levy duties or taxes in such territory, or to organize
and regulate postal services therein.
260. International servitudes may come to an end-
(a) By-agreement between the two states.
0) By the dominant state renouncing its right.
(c) By nonuser sufficient to raise the presumption of international aban-
donment. (Creasy, secs. 257, 258, 259, 260, pp. 257, 258.)
13. Origin and application of the term.--The term servitude is borrowed
from the Roman law, and is applied in the international relations of states
to express an obligation upon the part of one state to permit a thing to be done
or a right to be enjoyed by another state within or upon its territory. The
thing done or the right enjoyed, however, must not be sufficient in amount
or importance to constitute à restriction upon the sovereignty or independ-
ence of the servient or subordinate state. The state enjoying the benefit or
privilege of the servitude is called the dominant state. The state lying under
the obligation involved is called the servient state. The existence of a servi-
tude is not inconsistent with entire sovereignty and independence on the
part of the servient state.
The following examples are illustrations of servitudes: Suppose two states,
A and B, to be separated by a river; A may lie under a servitude to B not to
construct works of improvement upon the boundary river which shall injure
the opposite bank. Suppose two states, C and D, to be situated, one above
the other, upon the course of a navigable river, the mouth and lower waters
being situated in the territory of C; C may lie under a servitude to D of al-
lowing its citizens the privilege of navigating the river to the sea; D may lie
under a servitude to o not to use the banks of the river within the territory
of C for the purpose of loading and unloading cargoes.
How created and terminated.-Servitudes may exist by immemorial.pre-
scription, such existence being tacitly or expressly recognized by other states.
Such, in great part, was the case of the Danish Sound Dues. They may also
be created by treaty, and may be amended, increased, or modified in the same
manner. They may be extinguished by treaty, by nonuser, and in some cases
by forcible denial of the obligation. They must consist in an obligation to al-
low a thing to be done, or a right to be exercised, or in refraining from doing a
thing; they can never consist in an obligation to do a thing. They are für-
ther classified into positive and negative. Positive servitudes consist in allow-
ing a thing to be done, or a right exercised upon the territory of the servient
state. Negative servitudes consist in refraining from the exercise of rights
by a servient state.
Examples of servitudes. The following examples of servitudes created by
treaty are cited by Phillimore:
1. In the treaty of Utrecht of 1713, between England and France, it was
agreed on the part of France that the Stuart pretenders should not be per-
mitted to reside in French territory.
5843
71
2. In the treaty of Utrecht, between Spain and England, the possession of
Gibraltar by thọ latter power was confirmed by Spain on condition that
Moors and Jows should not be permitted to reside there.
3. The treaty of Paris of 1814 provided that Antwerp was to be an exclu-
sively commercial port.
4. By the treaty of 1831 certain Belgian fortresses were to be demolished
by December 1, 1833. (Davis's International Law, sec. 13, pp. 52, 53, 54.)
Şubordinate to questions of ownership are questions of international servi-
tudes, rights of way, and the like. A new question of this kind has very
nearly been raised with reference to the Suez Canal. It will no doubt some
day have to be decided how far the sovereign of a country who allows so in-
dispensable a waterway to be made through his territory is entitled to close
it at will. (Holland, Studies in International Law, p. 155.)
245. Martens speaks of treaties which create a servitude of public law
(une servitude du droit public) in favor of one nation within the territory
of another. The term servitude is borrowed from the civil law of the Ro-
mans, where it is used to designate certain forms of innocent use; as, for in-
stance, a right of way across the land of a neighbor. A servitude was distin-
guished by the Roman jurists from a right, and in order to convert a servi-
tude into a right some compact or stipulation to that effect was requisite.
"Si quis velit vicino aliquod jus constituere pactionibus atque stipulationibus
id efficere debet."
The right of innocent use is only an imperfect right, but under certain cir-
cumstances a right of innocent use may be likewise a right of necessity.
Thus the midchannel of a river may be the territorial boundary between
two nations, whilst neither nation may be able to gain access by the river to
its own ports, owing to the set of the current or the force of the wind, with-
out passing over portions of the river which belong to the other nation; or
the territory of a nation may be surrounded by the territory of another na-
tion, and the former may have no means of access to the open sea without
passing over the territory of the latter nation. Thus the territory of the
Swiss Confederation is inclosed on all sides by the territory of other nations,
so that, until the treaty of Vienna declared the navigation of the Rhine,
amongst the other great European rivers, to be free to all nations, the Swiss
nation had not any access to the open sea, except by passing over the terri-
tory of another nation.
Ågain, a nation may have some portions of its territory separated from the
rest of its territory by the territory of another nation; thus the Rhenish
provinces of Prussia are separated by the territories of other German powers
from the North German and Polish provinces of Prussia. Under circum-
stances of this nature a treaty which creates a servitude-in other words,
which establishes a right of way across the territory of one nation in favor
of another nation-is held to create an obligation, which may be suspended in-
deed by the occurrence of war, but which revives on the return of peace.
Klüber has given to the expression servitude a much larger interpretation; so
much so that if his use of the term be correct, it would seem doubtful whether
it could be safely maintained that all conventions which create a servitude of
public law in favor of one nation within the territory of another are perpetual
in their nature and are not extinguished by the event of war. Mr. Wheaton
is careful in limiting his own position of law to treaties which create "a per.
manent servitude," about which there can arise no dispute. (Twiss, Law of
Nations, sec. 245, pp. 423, 424.)
As to conventions or treaty relations of public right, it is meet to make a
distinction.
There are some which are obviously terminated by the very fact of the
state going out of existence. Such are those which were personal to the ex-
tinct state and necessarily presupposed its existence in the character of an
independent state subject to the law of nations. There are likewise termi-
nated treaties of alliance, amity, commerce, navigation, extradition, and
general association treaties. They may be renewed expressly, but relations
thus renewed are no longer the former relations—they are new relations.
On the other
hand, the condition of things created by treaties of disposition
is generally independent of the permanency or extinction of the nation that
concluded them. It therefore subsists after that nation has been absorbed
by one other or more. These treaties frequently bear on matters of private
law, or they may concern the territory, and under that head also
their effect
must subsist, as will be explained hereafter.
The German Confederation had the right to occupy the fortress of Lux-
embourg, which was the federal fortress. The dissolution of the confedera-
tion, in 1866, terminated this right. Even with the authorization of the states
of South Germany, the Northern Confederation of Germany would have
been unable to exercise it.
When the Kingdom of Hanover was incorporated in the Prussian Kingdom,
in 1866, the Hanoverian treaties of amity, commerce, navigation, and extradi-
tion, as well as those relating to copyright, were terminated. They were
superseded by the Prussian treaties bearing on the same subject.
5543
72
On the other hand, Prussia l'ecognized as being still in force the Hanoverian
treaties or boundary, l'ailroad track connections, etc.
The rule," says Mr. Bonfils, is that treaties concluded by the annexed
state with other nations unavoidably expire, and that conventions previously
concluded by the annexed stato apply ipso facto to the annexed territory.
It is the solution recognized by French jurisprudence. It is rejected by sev-
eral authorities, especially as regards commercial treaties."
Other relations, lights, and obligations possess a real character. They con-
cern territory. Now, while it may pass into foreign hands the territory re-
mains. These relations do not, therefore, lose their foundation from the fact
that the state has disappeared. They may and must subsist.
Such is the case with "servitudes which were borne by the territory of
the extinct state, and also with the active servitudes which belonged to that
state, in so far as both are not terminated through confusion or lack of utility
in analogy with private law. The successor may, moroover, denounce (in
the sense of notice of termination) the servitude, because treaties establish-
ing servitudes must be classed with those which, while being treaties of dis-
position,
are considered as agreed upon rebus sic stantibus.
Such is also the case with conventions relating to boundary, water courses,
and ways of conumunication. (Rivier, Principes du Droit des Gens, I, pp. 72, 73.)
We have a treaty which settled the navigation of the St. Law-
rence River, a treaty made between the United States and Great
Britain, who makes treaties for Canada and the other portions of
her dominions. Suppose Canada should revolt from Great Britain
and establish an independent republic recognized by the nations.
Would she not be subject to that obligation, and would anyone be
heard to argue anywhere that we had lost our treaty rights; that
servitude to navigate the St. Lawrence?
Suppose before the civil war the United States had entered
into a treaty with Great Britain under which we had granted to
her the free navigation of the Mississippi River for Government
ships to carry her munitions of war to distant points in her Ameri-
can possessions for the commerce of her citizens, and the rebellion
had been successful and a government had been established--the
Southern Confederacy-would Great Britain thereby have been
deprived of that servitude-for thus the books characterize it?
The obligation would have passed to the new sovereign owner
with the territory.
There is an added reason which may be urged here. That treaty
would have been made while we were one country, made under
the Constitution, by which every State surrendered the treaty-
making power and vested it in the Central Government, and that
obligation would have been created by the agent of the States as
to which it was local. No State under the new government could
be permitted to repudiate it, because it would be from first to last
its own contract, made by its own agent.
Just so in this case, if there were no international doctrine of
servitudes. When this treaty was made, when this servitude was
created, Mr. President, Panama was a sovereign State, a member
of a confederation which conferred upon the Government of New
Granada the conduct of foreign relations, and this treaty, so far
as it related to the Isthmus of Panama--and the heart of it, Article
XXXV, relates only to the Isthmus of Panama-was the treaty of
Panama made by her agent, New Granada.
Mr. MALLORY. The Senator does not put his position,
though, on the fact that at the time the treaty was made Panama
was simply a member of the confederation?
Mr. SPOONER. I do not. It is not necessary. Who contends,
Mr. President, on the other side, that to-day we have no right of
way or transit across the Isthmus? I put the question in the early
stages of the debate to several Senators who are opposed to the
treaty, and not one of them would deny that the grant of right of
5843
73
way or transit is still in force. It is not susceptible, I think, of
denial, and if that right or servitude still exists in our favor, it
must be because the obligation became transferred to the new Re-
public, because, being a servitude and a treaty right local in its
nature the Republic of Panama succeeded to the sovereignty and
ownership, subject to its burdens.
Now, Mr. President, possessing the right, what follows? Obvi-
ously that we must pay the price. And what is the price? To
maintain the perfect neutrality of the Isthmus, and the rights of
sovereignty and property of the Republic of Panama therein.
And so it has seemed to me plain, Mr. President, that since the
recognition by the United States on the 6th of November of the
Republic of Panama there was in law a practical novation as to
Article XXXV, and as to the concessions, and from that date the
Republic of Panama stood as the grantor of the right of transit
or passage, and we as her guarantor, as we had been the guar-
antor of Colombia, as to the Isthmus. In this view the President,
since the recognition of independence, had not only a perfect right,
but a duty, the treaty being the law of the land, to prevent any
invasion by a foreign state, which Colombia had become, of the
Isthmus of Panama.
Of course Senators say it was not the intention of New Granada
when she made this treaty that it should ever be turned against
her or a successor government. Probably not; but that is not
the question. If the territory went to the Republic of Panama
burdened with these servitudes, which are created by the treaty,
that is the end of the question. It is difficult to conceive it possi-
ble that any South American republic could make a treaty with-
out contemplating the possibility of revolution and dismember-
ment. That is one of the vicissitudes of national life, and in
South America it has been one of the habits of national life.
RICOGNITION OF TAD RIPUBLIO NO APPROVAL OF DOCTRINE OF SICCESSION.
Some of our friends on the other side who are opposed to the
treaty seem to roll under their tongues as a sweet morsel the as-
sumption that the President, by the recognition of this Republic,
has committed himself and the country to the doctrine of seces-
sion. I can not believe such a contention is serious. The dis-
tinction between the revolt of a province of Colombia and the
secession of a State from the American Union is too palpable for
debate. The contention might answer in a lodge of the Daugh-
ters of the Confederacy, but not among Senators of the United
States. It is not worth spending time upon.
The Southern States claiined under the Constitution the legal
right to withdraw from what they called a
"compact.'
They in-
sisted that there was no power in the Federal Government to
coerce a State to remain in the Union; that she was entitled
peaceably to withdraw. A great majority of the people of this
country stood by the doctrine of Daniel Webster, that this is an
indestructible Union, which can not be dissolved by the action of
any State or States. The doctrine of Daniel Webster in his reply
to Hayne was crystallized on the field of battle into the eternal
law which holds our States together, thank God, and to none is
it a greater blessing than to the people of the South.
The departments of Colombia were prohibited from seceding.
Panama invoked the right of revolution, as did the Southern
States, and succeeded, while the latter failed. That is all there is
of it.
5843
74
ator up.
Mr. TILLMAN. Does the Senator suppose that we would have
failed if we had had a big friend like the United States or England
or France to come around there and warn you people away?
Mr. SPOONER. Well, we found a good deal of fault with the
aid that both England and France gave you. They very promptly
recognized your belligerency, and England allowed you to fit out
your privateers in their ports to destroy our commerce. But what
is the use of going into that? The Senator interrupts me upon
points which are not attracting my attention.
Mr. T'ILLMAN. The Senator brought it up himself.
Mr. SPOONER. I did not bring that up. I brought the Sen-
up. (Laughter.]
Mr. President, I have finished. It has been far from my pur-
pose to make a political speech. It has been my earnest wish to
support in a lawyer-like and entirely sincere way the conclusions
which I have reached. I wish I might have done so with greater
brevity and better logic.
Whatever may be said, the independence of the Republic of
Panama is an accomplished fact. The recognitions of that fact
are irrevocable. This treaty will be ratified, and it is cause for
popular gratification that in the final action upon it there will be
no division on party lines.
The work of canal construction will be speedily inaugurated
and pushed with the energy and resources of this Government to
the earliest practicable completion, a consummation long dreamed
of by statesmen and long prayed for by mariners.
It is not to be expected that the harsh voice of criticism will be
hushed until next November. That need not and will not disturb
the President.
He may take to himself with exultant pride the safe assurance
that this triumph in Executive achievement which he has wrought
for his country, for the South American republics, and for the
world will be the chief glory of his Administration and the en-
during foundation of his fame; and it will not be forgotten by
history in praise of him that out of his prompt and wise action
there has also come, without breach of national tradition, viola-
tion of national or international law, a new republic, affording
to a long-suffering people on the Istl:mus opportunity of life, lib-
erty, and prosperity. For it all he deserves and will receive not
only the plaudits of thoughtful men of our own day, but the
grateful remembrance of posterity.
I thank the Senate.
APPENDIX.
[Extracts from President's message of December 7, 1903.]
May 22, 1850.-Outbreak; two Americans killed. War vessel demanded to
quell outbreak.
October, 1850.-Revolutionary plot to bring about independence of the
Isthmus.
July 22, 1851.--Revolution in four southern provinces.
November 14, 1851.-Outbreak at Chagres. Man-of-war requested for
Chagres.
June 27, 1853.—Insurrection at Bogota, and consequent disturbance on
Isthmus. Var vessel demanded.
May 23, 1854.-Political disturbances; war vessel requested.
June 28, 1854.- Attempted revolution.
October 24, 1854.-Independence of Isthmus demanded by provincial legis-
lature.
April, 1856.–Riot, and massacre of Americans.
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75
May 4, 1856.-Riot.
May 18, 1856.-Riot.
June 3, 1856.-Riot.
October 2, 1856.-Conflict between two native parties. United States forces
landed.
December 18, 1858.-Attempted secession of Panama.
April, 1859.---Riots.
September, 1860.-Outbreak.
October 4, 1860.-Landing of United States forces in consequence.
May 23, 1861.- Intervention of the United States forces required by inten..
dente.
October 2, 1861.-Insurrection and civil war.
April 4, 1862.-Measures to prevent rebels crossing Isthmus.
June 13, 1862.-Mosquera's troops refused admittance to Panama.
March, 1865.-Revolution, and United States troops landed.
August, 1865.-Riots; unsuccessful attempt to invade Panama.
March, 1866.—Unsuccessful revolution.
April, 1867.-Attempt to overthrow Government.
August, 1867.-Attempt at revolution.
July 5, 1868.-Revolution; provisional government inaugurated.
August 29, 1868.-Revolution; provisional government overthrown.
April, 1871.-Revolution; followed apparently by counter revolution.
April, 1873.-Revolution and civil war which lasted to October, 1875.
August, 1876.-Civil war which lasted until April, 1877.
July, 1878.-Rebellion.
December, 1878.-Revolt.
April, 1879.-Revolution.
June, 1879,-Revolution.
March, 1883.-Riot.
May, 1883.-Riot.
Jund, 1884.-Revolutionary attempt.
December, 1884.–Revolutionary attempt.
January, 1885.–Revolutionary disturbances.
March, 1885.-Revolution.
April, 1887.--Disturbance on Panama Railroad.
November, 1887.-Disturbance on line of canal.
January, 1889.-Riot.
January, 1895.-Revolution which lasted until April.
March, 1895.-Incendiary attempt.
October, 1899.-Revolution.
February, 1900, to July, 1900.-Revolution.
January, 1901.-Revolution.
July, 1901.-Revolutionary disturbances.
September, 1901.--City of Colon taken by rebels.
March, 1902.-Revolutionary disturbances.
July, 1902.—Revolution.
DEPARTMINT OF STATE,
Washington, November 3, 1903. (Sent 11.18 p. m.)
Message sent to Nashville to Colon may not have been delivered. Accord-
ingly see
that following message is sent to Nashville immediately:
"NASHVILLE, Colon:
"In the interests of peace make every effort to prevent Government troops
at Colon from proceeding to Panama. The transit of the Isthmus must be
kept open and order maintained. Acknowledge.
"DARLING, Acting."
Secure special train, if necessary: Act promply.
LOOMIS, Acting.
DEPARTMENT OF STATE,
Washington, November 1, 1903. (Sent 12.02 p. m.)
Communicate with commander of gunboat Bogota and state plainly that
this Government, being responsible for maintaining peace and keeping tran-
sit open across Isthmus, desires him to refrain from wantonly shelling the
city. We shall have a naval force at Panama in two days, and are now or-
dering mon from the Nashville to Panama in the interests of peace.
LOOMIS, Acting.
NAVY DEPARTMENT,
Washington, D. C., November 2, 1909.
[Translation.]
NASHVILLE, care American Consul, Colon:
Maintain free and uninterrupted transit. If interruption threatened by
armed force, occupy the line of railroad. Prevent landing of any armed
5843
76
force with hostile intent, either Government or insurgent, either at Colon,
Porto Bello,
or other point. Send copy of instructions to the senior officer
present at Panama upon arrival of Boston.. Have sent copy of instructions
and have telegraphed Dixie to proceed with all possible dispatch from King-
ston to Colon. Government force reported approaching the Isthmus in ves-
sels Prevent their landing if in your judgment this would precipitate a
conflict. Acknowledgment is required.
DARLING, Acting.
NAVY DEPARTMENT,
Washington, D. C., November 2, 1908.
GLASS, Marblehead, Acapulco:a
Proceed with all possible dispatch to Panama. Telegraph in cipher your
departure. Maintain free and uninterrupted transit. If interruption is
threatened by armed force, occupy the line of railroacia Prevent landing of
any armed force, either Government or insurgent, with hostile intent at any
point within 50 miles of Panama. If doubtful as to the intention of any armed
force, occupy Ancon Hill strongly with artillery. If the Wyoming would de-
lay Concord and Marblehead, her disposition must be left to your discretion.
Government force reported approaching the Isthmus in vessels. Prevent
their landing if in your judgmont landing would precipitate a conflict.
DARLING, Acting.
NAVY DEPARTMENT,
Washington, D. C., November 3, 1909.
CRUISER ATLANTA, Kingston, Jamaica:
Proceed with all possible dispatch to Colon. Acknowledge immediately.
When will you sail?
DARLING, Acting.
NAVY DIPARTMINT,
Washington, D. C., November 3, 1903.
NASHVILLE, Colon:
In the interest of peace make every effort to prevent Government troops
at Colon from proceeding to Panama. The transit of the Isthmus must be
kept open and order maintained. Acknowledge.
DARLING, Acting.
NAVY DIPARTMENT,
Washington, D. C., November 3, 1903.
AMERICAN CONSUL, Panama:
Message sent Nashville to Colon may not have been delivered. Accord-
ingly see that the following message is sent to Nashville immediately:
“NASHVILLE, Colon:
“In the interest of peace make every effort to prevent Government troops
at Colon from proceeding to Panama. The transit of the Isthmus must be
kept open and order maintained. Acknowledge.
"DARLING, Acting."
Secure special trains if necessary. Act promptly.
LOOMIS, Acting.
[Translation.)
NAVY DEPARTMENT,
Washington, D. C., November 4, 1903.
NASHVILLE, Colon:
Gunboat of Colombia shelling Panama. . Send immediately battery 3-inch
field gun and 6-pounder with a force of men to Panama to compel vessárion
bombardment. Railroad must furnish transportation immediately.
DARLING, Acting.
[Translation.]
WASHINGTON, D. C., November 5, 1909.
BOSTON, care of American Consul, Panama:
Prevent recurrence bombardment of Panama. Acknowledge.
MOODY.
NAVY DEPARTMENT,
Washington, D. C., November 5, 1909.
NASHVILLE, Colon:
Prevent any armed force of either side from landing at Colon, Porto Bello,
or vicinity.
MOODY.
,a Same to commander of Boston at San Juan del Sur, Nicaragua.
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77
[Translation.]
WASHINGTON, D. C., November 6, 1903.
MAINE, Woods Hole, Mass.:
Proceed at once to Colon, coaling wherever necessary to expedite your ar-
rival. Acknowledge.
MOODY.
[Translation.]
WASHINGTON, D. C., November 9, 1903.
DIEHL, Boston:
Upon the arrival of the Marblehead sufficient force must be sent to watch
movements closely of the British steamers seized at Buenaventura and to
prevent the landling of men with hostile intent within limits of the State of
Panama. Protect the British steamers if necessary.
MOODY,
O
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