of dollars should the Panama route be adopted, or one hnudred and eighty millions of dollars should the Nicaragua be adopted. SEC. 6. That in any agreement with the Republic of Colombia, or with the States of Nicaragua and Costa Rica, the President is authorized to guarantee to said Republic or to said States the use of said canal and harbors, upon such terms as may be agreed upon, for all vessels owned by said States or by citizens thereof. SEC. 7. That to enable the President to construct the canal and works appurtenant thereto as provided in this Act, there is hereby created the Isthmian Canal Commission, the same to be composed of seven members, who shall be nominated and appointed by the President, by and with the advice and consent of the Senate, and who shall serve until the completion of said canal unless sooner removed by the President, and one of whom shall be named as the chairman of said Commission. Of the seven members of said Commission at least four of them shall be persons learned and skilled in the science of engineering, and of the four at least one shall be an officer of the United States Army, and at least one other shall be an officer of the United States Navy, the said officers respectively being either upon the active or the retired list of the Army or of the Navy. Said commissioners shall each receive such compensation as the President shall prescribe until the same shall have been otherwise fixed by the Congress. In addition to the members of said Isthmian Canal Commission, the President is hereby authorized through said Commission to employ in said service any of the engineers of the United States Army at his discretion, and likewise to employ any engineers in civil life, at his discretion, and any other persons necessary for the proper and expeditious prosecution of said work. The compensation of all such engineers and other persons employed under this Act shall be fixed by said Commission, subject to the approval of the President. The official salary of any officer appointed or employed under this Act shall be deducted from the amount of salary or compensation provided by or which shall be fixed under the terms of this Act. Said Commission shall in all matters be subject to the direction and control of the President, and shall make to the President annually and at such other periods as may be required, either by law or by the order of the President, full and complete reports of all their actings and doings and of all moneys received and expended in the construction of said work and in the performance of their duties in connection therewith, which said reports shall be by the President transmitted to Congress. And the said Commission shall furthermore give to Congress, or either House of Congress, such information as may at any time be required either by Act of Congress or by the order of either House of Congress. The President shall cause to be provided and assigned for the use of the Commission such offices as may, with the suitable equipment of the same, be necessary and proper, in his discretion, for the proper discharge of the duties thereof. SEC. 8. That the Secretary of the Treasury is hereby authorized to borrow on the credit of the United States from time to time, as the proceeds may be required to defray expenditures authorized by this Act (such proceeds when received to be used only for the purpose of meeting such expenditures), the sum of one hnudred and thirty million dollars, or so much thereof as may be necessary, and to prepare and issue therefor coupon or registered bonds of the United States in such form as he may prescribe, and in denominations of twenty dollars or some multiple of that sum, redeemable in gold coin at the pleasure of the United States after ten years from the date of their issue, and payable thirty years from such date, and bearing interest payable quarterly in gold coin at the rate of two per centum per annum; and the bonds herein authorized shall be exempt from all taxes or duties of the United States, as well as from taxation in any form by or under State, municipal, or local authority: Provided, That said bonds may be disposed of by the Secretary of the Treasury at not less than par, under such regulations as he may prescribe, giving to all citizens of the United States an equal opportunity to subscribe therefor, but no commissions shall be allowed or paid thereon; and a sum not exceeding one-tenth of one per centum of the amount of the bonds herein authorized is hereby appropriated, out of any money in the Treasury not otherwise appropriated, to pay the expense of preparing, advertising, and issuing the same. Approved, June 28, 1902. THE MOORE MEMORANDUM 1 [Written early in August 1903, it bears the date August 2, 1903; mailed to Mr. Loomis, August 14; forwarded by Mr. Loomis to President Roosevelt, August 15; read by the President and forwarded to Secretary Hay with letter of August 19, 1903.] Considerations on the present situation with respect to the canal treaty with Colombia. 1. When, some years ago, negotiations were begun with the local sovereigns, to enable the United States to construct an interoceanic canal, the Nicaragua route was the only one in contemplation. The negotiations were therefore carried on with Nicaragua and Costa Rica, and, in defect of sufficient stipulations on the subject with the former power and of any whatever with the latter, the treaty-drafts not unnaturally assumed an elaborate form. When at length the Panama route was examined and found to be preferable, and Colombia became the local sovereign in the negotiations, the previous drafts not unnaturally continued to be made use of. Moreover, the act of June 28, 1902, was framed with reference to a treaty on such lines. 2. There has resulted an elaborate treaty with Colombia, to the ratification of which the Congress of that country objects. Should the Columbia Congress reject the treaty, it is important to consider what would be the state of the canal question in that event. 3. That the United States owuld then abandon the Panama route and close with Nicaragua and Costa Rica is a supposition that may serve the present purposes of diplomacy but certainly not those of permanent policy. If the Panama route is, as we are advised, the best and most practicable route, both for construction and for operation, it is the one that we should have. 4. The United States, in undertaking to build the canal, does a work not only for itself but for the world. The experience of a hundred years has demonstrated that private enterprise without the responsible guarantee of a great government cannot assure a canal; this has been most signally demonstrated at Panama. The United States now holds out to the world for the first time a certain prospect of a canal. May Colombia be permitted to stand in the way? 5. Let us answer this question, first, on general grounds. The spirit of the answer may be found in the following words of an American statesman: "The progress of events has rendered the interoceanic routes across the narrow portions of Central America vastly important to the commercial world, and especially to the United States, whose possessions, extending along the Atlantic and Pacific coast, demand the speediest and easiest modes of communication. While the just rights of sovereignty of the States occupying this region should always be respected, we shall expect that these rights will be exercised in a spirit befitting the occasion and the wants and circumstances that has arisen. Sovereignty has its duties as well as its rights, and none of these local governments, even if administered with more regard to the just demands of other nations than they have been, would be permitted in a spirit of Eastern isolation to close these gates of intercourse on the great highways of the world, and justify the act by the pretension that these avenues of trade and travel belong to them, and that they choose to shut them, or, what is almost equivalent, to encumber hem with such unjust regulations as would prevent their general use." (Mr. Cass, Sec. of State, to Mr. Lamar, minister to Cent. Am., July 25, 1858. Cor. in relation to the Proposed Interoceanic Canal [1885], 281.) 6. We will now answer the question on particular grounds, affecting the national rights of the United States in the matter. In 1846 the United States entered into a treaty with New Granada (Colombia). By Art. XXXV of that treaty, New Granada guarantees "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 free and open to the Government and citizens of the United States." Roosevelt Papers, Letter Books, XI, 390-91, contains the copy of Roosevelt's letter to Hay of August 19, 1903, forwarding the Memorandum. A photostat (12 pages) of the Memorandum was made in Library of Congress on July 9, 1928, in replying to Moore's letter of June 30, 1928, inquiring about his "Memorandum of August 14, 1903." This photostat, from which the present text was taken verbatim, is filed with the Roosevelt Papers. Also H. D. Reid, International Servitudes in Law and Practice, pp. 241-46 (with slight variations). The United States, on the other hand, as "an especial compensation" for these advantages, guarantees, "positively and efficaciously, to New Granda, by the present stipulation, the perfect neutrality of the before-mentioned Isthmus, with the view that the free transit from one to the other sea may not be interrupted or embarrased in any future time while this treaty exists; and in consequence, the United States guarantees, in the same manner, the rights of sovereignty and property which New Granda has and possesses over the said territory." 7. That these engagements created on the part of the United States an offensive and defensive alliance with Colombia and constituted a sort of supportant partnership in sovereignty with that country, and that the object in assuming this burden was to secure primarily a canal, are facts shown by President Polk's message transmitting the treaty to the Senate. In this message, President Polk said: "The importance of the concession to the commercial and political interests of the United States cannot be overrated. The route of the Isthmus of Panama is the shortest between the two oceans; and, from the information herewith communicated, it would seem to be the most practicable for a railroad or canal. "The vast advantages to our commerce which would result from such a communication, not only with the west coast of America, but with Asia and the islands of the Pacific, are too obvious to require any detail. Such a passage would save us from a long and dangeorous navigation of more than nine thousand miles around the Horn, and render our communication with our own possessions on the northwest coast of America comparatively easy and speedy . . . . "The treaty does not propose to guaranty a territory to a foreign nation in which the United States will have no common interest with that nation. On the contrary, we are more deeply and directly interested in the subject of the guarantee than New Granada herself, or any other country." These reasons, which continue to be valid to-day, are not rendered less important by our recent acquisition of Hawaii and the Philippines. 8. Since the day the treaty was ratified, the United States has faithfully performed its guarantee. As early as 1853, Mr. Everett intimated to the Peruvian minister that the United States would maintain the neutrality of the Isthmus in the event of war between that country and Colombia. (Mr. Everett, Sec. of State, to Mr. Osma, Peruvian min., Feb. 22, 1853, MS, Inst. Peru I. 79.) In 1864 the Colombian Government expressed its expectation that, in event of war between Peru and Spain, the United States would carry into effect the guarantee of neutrality. (Mr. Seward, Secretary of State, to the Attorney General, Aug. 16, 1864, 65 MS. Dom. Let. 523.) Mr. Fish stated in 1871 that the Department of State had "reason to believe" that an attack upon Colombian sovereignty on the Isthmus had "upon several occasions been . . . . averted by warning from this government." (For. Rel. 1871, 247, 246.) In 1886, when Colombia was threatened by Italy with hostilities in the Cerruti Case, Mr, Bayard expressed "the serious concern the United States 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." (Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, telegram, Jan. 29, 1886, MS. Inst. France, XXI. 278.) Not only then, but at a later time, it is altogether probable that the interposition of the United States, under the treaty of 1846, saved Colombia from hostile measures in the case of Cerruti. 9. While the United States has thus saved Colombia from foreign attacks on the Isthmus, it has on numerous occasions protected the route from domestic disturbance. It is unnecessary here to specify the instances, since some of them are very recent. It is furthermore to be observed that the United States, in so protecting the route, has usually acted with the express approval of the Colombian Government, whose invocations of the treaty of 1846 have often preceded our inter position. In reality, Colombia has again and again claimed that it was our duty to protect the route against domestic interruption or attack, thus eonstruing the treaty more broadly than we have done and less favorably to her own sovereignty. Our claim has been that we had under the treaty a right to intervene for the purpose of keeping open the transit, while Colombia has asserted that we were bound to intervene also for the purpose of supporting the authority of her titular governments. Her claim has in reality approached the point of making us responsible sovereign on the Isthmus. The position of the United States was exactly expressed by Mr. Seward as follows: "The United States have taken, and will take, no interest in any question of internal revolution in the State of Panama, or any other State of the United States of Colombia, but will maintain perfect neutrality in regard to such domestic controversies. The United States will nevertheless hold themselves ready to protect the transit trade across the Isthmus against invasion by either the domestic or foreign disturbers of the peace of the State of Panama." 10. Art. XXXV of the treaty of 1846 guarantees, as has been seen, a free and open transit not only for the citizens but also for the "Government" of the United States. This means for the use of the Government itself, for persons in its military and civil service and for its property. As early as July 1852 the United States sent several hundred troops across the Isthmus, without asking leave of the Colombian Government. The same privilege has since been exercised, as occasion required; and it has been extended to the transit of fugitives from justice in custody of American officials. By a protocol signed at Bogota, February 22, 1879, and afterwards approved by the Colombia Senate, it was expressly acknowledged that this right of transit for troops and extradited fugitives belonged to the United States-" a right," it was declared, "which is established in compensation for the guaranty of the soverignty and property of the Isthmus, to which the same Government is bound" (Moore on Extradition, I. 714-718.) 11. In view of the fact that the United States has for more than fifty years secured to Colombia her sovereignty over the Isthmus, for the mutually avowed purpose of maintaining a free and open transit, the United States is in a position to demand that it shall be allowed to construct the great means of transit which the treaty chiefly designed to assure. In reality, the Panama canal, so far as built, has actually been constructed under the protection of this very guarantee. The persons that undertook it failed to finish it. The United States would be justified in asserting and maintaining a right to finish it. Let us suppose that insurgents should tear up a section of the Panama railway; or even that the Colombian Government itself should do so. Can it be said that the United States might rightfully have prevented the road from being destroyed, but is forbidden to rebuilt it? Certainly not. True it is, that the Panama canal has not been finished, and therefore has never reached the condition of one of the "modes of communication," of which the United States was to have the free and open use. But is may be observed that the treaty expressly refers to modes of communication "that now exist, or that may be hereafter constructed." It looked to the future as well as the present, and above all to the construction of a canal. The Government and citizens of the United States indeed have never yet enjoyed the full benefit, nor even the chief benefit, that the treaty was intended and expected to secure. That benefit would be realized only when the ships of the United States and of its citizens should be able to pass from ocean to ocean by way of the Isthmus. Colombia, on the other hand, has from the beginning enjoyed the full benefit that was to accrue to her, namely, the guarantee of her sovereignty. She is therefore not in a position to obstruct the building of the canal. If it be suggested that the treaty did not refer to the possible construction of the canal by the United States, the answer may readily be made that the Government of the United States would not in 1846 have proposed such a thing, not because the proposal would have been considered derogatory to Colombia's sovereignty, but because it is not probable that a dozen men could then have been found in Congress who would have sanctioned the opinion that the Government of the United States could constitutionally build a canal in foreign territory or incorporate a company to do so. In fact Mr. Clayton in defending in the Senate, in 1853, the joint guarantee by the Clayton-Bulwer treaty of the investment of private capital, challenged any one of his opponents to say that the United States could, within its constitutional powers, itself build the canal, and none of them responded. In the evolution of opinion, our views on constitutional questions have undergone a change. 12. Colombia's consent to the transfer of the rights of property (as distinguished from distinctively concessionary rights) of the Panama Canal Company, and an unqualified license to construct and operate, or perhaps merely to operate, a canal, are all that the United States needs; and these the United States has a right to require. Elaborate stipulations as to the future are at least superfluous. The United States in constructing the canal would own it; and, after constructing it, would have the right to operate it. The ownership and control would be in their nature perpetual. It may be said that the treaty of 1846 is not in terms perpetual. But the rights of property, when once acquired, and the license to dig, when once secured, would not be dependent on the treaty. Some years must elapse before the canal can be completed; and it is not to be supposed that the United States would be unable meanwhile to arrange all expedient details. Once on the grounds and duly installed, this government would find no difficulty in meeting questions as they arose. It has done so under the treaty of 1846. Colombia's guarantee of a free and open transit has not secured it to us. We have usually found, when the emergency arose, that we were dependent upon our own resources for the enjoyment of the privilege which the treaty was designed to secure to us. The position of the United States is altogether different from that of private capitalists, who, unless expressly exempted, are altogether subject to the local jurisdiction, and who, before invoking their governments' protection, may be required to tread the paths of ordinary litigation and establish their rights before the tribunals of the governments against which they assert them. Under such conditions, the private capitalist must have everything beforehand nominated in the bond. The United States is not subject to such disabilities, and can take care of the future. J. B. M. THE TEXT OF THE PANAMA DECLARATION OF INDEPENDENCE SIGNED The transcendental act that by a spontaneuos movement the inhabitants of the Isthmus of Panama have just executed is the inevitable consequence of a situation which has become graver daily. Long is the recital that the grievance of the inhabitants of the Isthmus have suffered from their Colombian brothers; but those grievances would have been withstood with resignation for the sake of harmony and national union had its separation been possible and if we could have entertained wellfounded hopes of improvement and of effective progress under the system to which we were submitted by that Republic. We have to solemnly declare that we have the sincere and profond conviction that all the hopes were futile and useless, all the sacrifices on our part. The Isthmus of Panama has been governed by the Republic of Colombia with the narrow-mindedness that in past times was applied to their colonies by the European nations-the Isthmian people and territory were a source of fiscal resources and nothing more. The contracts and negotiations regarding the railroad and the Panama Canal and the national taxes collected in the Isthmus have netted to Colombia tremendous sums which we will not detail, not wishing to appear in this exposition which will go down to posterity as being moved by a mercenary spirit, which has never been nor is our purpose; and of these large sums the Isthmus has not received the benefit of a bridge for any of its numerous rivers, nor the construction of a single road between its towns, nor of any public building nor of a single college, and has neither seen any interest displayed in advancing her industries, nor has a most infinite part of those sums been applied toward her prosperity. A very recent example of what we have related above is what has occurred with the negotiations of the Panama Canal, which, when taken under consideration by Congress, was rejected in a summary manner. There were a few 1"Four Centuries of the Panama Canal" Vol. II, Willis Fletcher Johnson (Henry Holt and Company, New York, 1907) |