or authority, and since the exercise of judicial jurisdiction through the Courts is undoubtedly one of the attributes of sovereignty covered by that Article, it is apparent that the extension contemplated by the Supreme Court of Justice would not only be inconsistent with the broad treaty provisions referred to above, but would also give rise to an overlapping of judicial jurisdiction, since the competency of the Canal Zone Courts to render judgment in cases such as that of Beatrice Harris versus Chester M. Buel is not open to question. Therefore, not only would the extension of Panamanian judicial jurisdiction to the Canal Zone be in violation of specific treaty provisions, but the consequent legal confusion would unquestionably prove an obstacle to the effective administration of justice.

It was also pointed out that it was very doubtful whether the divorce decree in question would be recognized as valid in the Canal Zone or in the United States. The Minister was accordingly instructed to protest against the position taken by the Supreme Court of Justice of Panama and to express the hope that the Panamanian Government would take appropriate steps to dispel any misunderstandings or inconveniences resulting therefrom.

"The Minister of Foreign Affairs replied stating, inter alia, that the spokesman of the Republic of Panama in respect to foreign relations was the Panamanian Foreign Office and not the judiciary and that the executive branch of the Panamanian Government had never agreed with the Goverment of the United States in its interpretation of article III of the convention of 1903 but that, as an act of courtesy, a copy of the Minister's note (written in compliance with the instructions of the Department of State) would be sent to the President of the Supreme Court of Justice of Panama."

14. There have been, as hereinbefore indicated, numerous other occasions, including recent occasions, whereon the Department of State has occasion to construe and apply Article III. It would serve no purpose to abstract more of them. The uniform position of the United States Government has been (paraphrasing the language of Attorney General Bonaparte in 1907 in 26 Atty. Gen. 376) that the sovereignty over the Canal Zone is not an open or doubtful question; and that the language of Article III is not obscure or ambiguous, and that there is no warrant for resorting to any construction of it except by the first rule of construction-that plain and sensible words should be taken to mean what they say. That the United States has, from the beginning, acted upon these views is apparent from the letter of Secretary of State Hay to Minister Obaldia on October 24, 1904, wherein it was said:

"The United States at all times since the treaty was concluded has acted upon the theory that it had secured in and to the Canal Zone the exclusive jurisdiction to exercise sovereign rights, power and authority."

15. All requests by Panama during the 1955 treaty negotiations that would have involved a concession to Panama of any right to exercise sovereignty in the Canal Zone were unequivocally rejected by the United States on the basis of the officially reaffirmed position of the United States that no useful purpose would be served in debating the question of sovereignty, that such matters were resolved by Article III of the 1903 Convention giving to the United States the right to exercise all sovereign rights, power and authority in the Canal Zone "to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority," and that the United States is not disposed to alter its basic rights as described in said Article III.

THE THEORY OF TITULAR SOVEREIGNTY

16. Some discussion is believed indicated at this point of the concept, adopted by some and rejected by others, that the grants in the 1903 Convention left a "titular sovereignty" in the Republic of Panama. The principal references to this theory are abstracted below.

17. Secretary of State Hay discussed this theory in the following terms: "If it were conceded that the abstract, nominal 'rights, power and authority of sovereignty in and over the Zone' are vested in the Republic of Panama, there would still remain the fact that by said Article III the United States is authorized to exercise the rights, power, and authority of sovereignty 'to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority.'

"If it could or should be admitted that the titular sovereign of the Canal

Zone is the Republic of Panama, such sovereign is mediatized by its own act, solemnly declared and publicly proclaimed by treaty stipulations, induced by a desire to make possible the completion of a great work which will confer inestimable benefit upon the people of the Isthmus and the nations of the world. It is difficult to believe that a member of the family of nations seriously contemplates abandoning so high and honorable a position in order to engage in an endeavor to secure what at best is a 'barren scepter.' .'" (Letter October 24, 1904, from Secretary of State Hay to Minister Obaldia.)

18. It is to be noted, first, that Secretary Hay did not concede or admit the correctness of the theory, and, second, that he deemed titular sovereignty "at best, a 'barren scepter.'"

19. William Howard Taft, then Secretary of War, discussed this theory in the course of a long statement presented on April 18, 1906, to the Senate Committee on Interoceanic Canals. In a part of that statement devoted to the Executive Order or modus vivendi of December 3, 1904 (Taft Agreement), Mr. Taft, after quoting Article III said:

"It (Article III) is peculiar in not conferring sovereignty directly upon the United States, but in giving to the United States the powers which it would have if it were sovereign. This gives rise to the obvious implication that a mere titular sovereignty is reserved in the Panamanian Government. Now, I agree that to the Anglo-Saxon mind a titular sovereignty is like what Governor Allen, of Ohio, once characterized as a "barren ideality,' but to the Spanish or Latin mind poetic and sentimental, enjoying the intellectual refinements, and dwelling much on names and forms it is by no means unimportant. ***." (Senate Document No. 401, 59th Congress, 2d Session, Volume III, page 2526.)

20. The foregoing abstract was placed in the Congressional Record by Senator Brandegee in 1912 (Cong. Record for July 24, 1912, at pg. 10119). It may be observed that Mr. Taft, unlike Mr. Hay, thought it obvious that a titular sovereignty remained in the Republic of Panama; but that Mr. Taft agreed that a titular sovereignty is like a "barren ideality."

21. Mr. Taft again discussed this theory in the year 1930, when, as Chief Justice he delivered the opinion of the Supreme Court in Luckenbach S.S. Co. v. United States, 280 U.S. 173; 50 Sup. Ct. 148. He said:

"Whether the grant in the treaty amounts to a complete session of territory and dominion to the United States, or is so limited that it leaves at least titular sovereignty in the Republic of Panama, is a question which has been the subject of diverging opinions (citing 20 Am. Journal of International Law, pp. 120-122; Isthmian Highway, Miller, p. 221; Wilson v. Shaw, 204 U.S. 24, 32, 33, 27 S. Ct. 233,, 51 L. Ed. 351) and is much discussed in the briefs." The opinion proceeds to say that for the purposes of that case the construction of the treaty in that regard need not be examined as an original question. 22. Two further observations are believed important regarding titular sovereignty:

First: If it were to be conceded or admitted that the Republic of Panama has titular sovereignty over the Canal Zone (the United States has never officially so conceded or admitted), the facts would remain that the titular sovereignty of Panama would be wholly naked or barren ("a barren scepter" or "barren ideality"); that such sovereignty would be wholly latent or dormant (reversionary in character) so far as practical effect is concerned; and that the Republic of Panama would derive therefrom no (present) sovereign right, power, privilege or prequisite whatsoever.

Second: The Republic of Panama has never at any time, so far as available records show, contended that it possessed titular sovereignty over the Canal Zone. Instead the Republic of Panama, after observing that Article III did not use words expressly transferring sovereignty, has contended, in various terms and in various connections, that it is the sovereign over the Canal Zone; that is, has claimed what Attorney General Bonaparte called "the substance of sovereignty."

CONCLUSIONS

23. The United States has the exclusive right to the exercise of sovereign rights, power and authority in the Canal Zone. The Republic of Panama has no right to the exercise of sovereign rights, power and authority in the Canal Zone, and no right to the perquisites or privileges of a sovereign in the Canal Zone. Any titular sovereignty which the Republic of Panama may possess in the Canal

Zone is wholly barren and dormant (reversionary in character) at least so long as the Convention of 1903 remains in effect. The United States sees no useful purpose to be served in debating the question of sovereignty, as such, over the Canal Zone, a matter fully resolved by Article III of the 1903 Convention. The United States is not disposed to alter its basic rights in the Canal Zone as described in Article III of the 1903 Convention.

Captain WILLENBUCHER. No Secretary of State, or any official of the State Department, except for Alger Hiss, in a matter not directly pertinent here at this time, has brought publicly into question the nature of the efficacy, legality or propriety of the exercise of the sovereignty over the Canal Zone.

This has been consistently done, that is to say, to bring this matter into question in the current negotiations, in public statements, speeches of officials, and in collaboration with others who made such false and derogatory statements. I, on repeated occasions, have inquired of the highest officials in the State Department, in the office of Ambassador Bunker, on what basis such statements are being made.

On each such occasion I have been told that these statements are based upon "legal opinions." from the State Department Legal Division, or the General Counsel's office.

On the last such occasion, during a speech by Ambassador Bunker, at the last monthly meeting of the Washington, D.C. chapter of the Naval Academy Graduates Association, I asked the Ambassador the same question, and was again told that the statements were based upon "legal opinions" of the State Department's General Counsel's office.

I then outlined some of the grossly fallacious statements. As a result, a few days later I received a letter from the State Department, Office of the Legal Advisor, a copy of which I have here.

On every former occasion when I asked for copies of any or all legal opinions covering the canal sovereignty question I have been told they could not be furnished, and I was advised that I should read Ambassador Bunker's former speeches, all of which I have read, and reread, and which moved me to ask for the legal opinions in the first place.

Upon receipt of a letter from the Office of the Legal Advisor, I immediately called its author, Mr. Michael Kozak, and carefully outlined what I should like to obtain, only to be told there was no such legal opinion in that form, but he did tell me that there was a letter which had been written, signed by Mr. S. Morey Bell, to Congressman Gene Snyder, and that he would send a copy of that letter to me, which he did.

I find almost everything in the letter to Congressman Snyder to be inaccurate and lacking germaneness, even false, and the inaccuracies and fallacies can easily be demonstrated.

The United States having granted to it by Panama all of the rights, power and authority to exercise sovereignty over the Canal Zone to the complete exclusion of any exercise of sovereignty by Panama, it is for the United States. and the United States alone, acting unilaterally, to determine whether, when, and if ever it mav choose to surrender or abandon in whole or in part any such sovereign power, which incidentally, belongs to the people of the United States under our system.

Not long after the 1903 treaty the United States recognized that for certain purposes there resided in Panama a reversionary right, which was called "titular sovereignty."

It was made indelibly clear that this was a mere scintilla of reversionary right, and called by Secretary Hay "a barren scepter" and by Secretary Taft, who referred to it as, I think, "a barren ideality".

Referring again to the letter of the State Department to Representative Gene Snyder, there is perhaps only one accurate statement, namely on pages 4 and 5, and this I quote, in part, leaving out the nonpertinent portions. It reads:

I should add, however, that in my judgment the fundamental question which must be addressed in considering whether a new treaty with Panama is desirable is not that of sovereignty. Rather, the question is whether a new treaty would or would not serve the United States interests.

That statement is correct. Since the sovereign rights, power and authority are crystal clear, and as to the other matters, since sovereignty is not negotiable, are matters solely for, as to other matters, solely for bilateral consideration of the United States and Panama. They are not for the United Nations, where we do have a veto power, nor for the OAS, where we overlooked reserving a veto power.

However, they are not for such organizations on the basis of an analogy at least to the reservation as being a matter within the domestic concern of the United States, recognizing its global obligation to operate the canal under the terms of the Hay-Pauncefote Treaty, which superseded the Clayton-Bulwer Treaty for reasons which are historic.

Now, Madam Chairman, that, may it please the committee, finishes my statement on sovereignty as such, but I should like to take a few minutes on some other aspects, if I may be permitted to do so, and I think at this point it might be well if there are a few questions on the sovereignty question, I shall be glad to try to answer them.

Before that, I would also like to submit for the records matter from the "Untold Story of Panama," written by Earl Harding. Mrs. SULLIVAN. It will be received for the record at this point. [The following was received for the record:]

THE UNTOLD STORY OF PANAMA

(By Earl Harding)

Chapter 4

THE BABY REPUBLIC IS BORN

At 12:51 P. M. of November 7, 1903 Secretary of State Hay cabled instructions to United States Vice General Felix Ehrman in Panama to enter into relations with the de facto government. At 1:40 P. M. Secretary Hay received Bunau-Varilla's telegram from New York announcing that "the Republic of Panama has been pleased to designate me as its Envoy Extraordinary and Minister Plenipotentiary near the Government of the United States" and that "in spreading her protecting wings over the territory of our Republic the American Eagle has sanctified it."

Bunan-Varilla's authority was already in jeopardy. Dr. Amador cabled him— so wrote Bunau-Varilla in his 1913 book of Panama adventures-that his

powers would be limited to those of a "Confidential Agent," and Arango, Boyd and Arias instructed him by cable to contract a loan of $200,000. BunauVarilla said he ignored these insructions as beneath his dignity.

A newspaper story that a special commission would soon leave Panama and do the treaty negotiating gave Bunau-Varilla at the White House and extended Secretary Hay to rush a treaty to conclusion. On November 13, 1903 President Theodore Roosevelt received Bunau-Varilla at the White House and extended formal recognition to the new Republic of Panama. By November 15 Secretary Hay sent to Bunau-Varilla a copy of the Hay-Herran Treaty, which Colombia had rejected, modified to apply to Panama.

Bunau-Varilla, according to his later story, worked all night redrafting and strengthening Secretary Hay's draft. His handling of the question of sovereignty is still a burning issue in Panama, and should be carefully noted here. Bunau-Varilla wrote in his 1913 book:

"After mature thought I recognized that if I enumerated in succession the various attributes of soverignty granted, I ran the risk of seeing, in the Senate, some other attributes asked for. To cut short any possible debate I decided to grant a concession of sovereignty en bloc." The formula which Bunau-Varilla said seemed to him the best was expressed in his text of Article III of the Hay-Bunau-Varilla Treaty. The sovereignty of the United States within the Panama Canal Zone, despite Panamanian clamor for its abrogation, still stands. Mrs. SULLIVAN. Mr. Snyder, very briefly, do you have any questions that you want to ask of the Captain?

Mr. SNYDER. I do not believe so, Mrs. Sullivan.

I appreciate your support and comments on the letter which you referred to, Captain. Needless to say, I agree with what the captain said, insofar as how he described the letter as being full of inaccuracies, and I can assure the captain that I intend to deal with that letter at some length, if Mrs. Sullivan permits it-and I expect she will when we get into closed session-with those responsible for the

content.

Captain WILLENBUCHER. That should be done, because there have been very gross errors here.

There have been some things included that absolutely are not in any degree pertinent.

One is a provision here which tries to indicate that the rights of the United States over the Panama Canal Zone offer an example of the most complete jurisdiction over a territory without it being a cession in the technical international law sense.

That is not the one. The one I refer to is the one which tried to take out of the 1936 treaty another provision.

Mr. SNYDER. It is in the next paragraph.

Captain WILLENBUCHER. Do you have that?

Mr. SNYDER. Yes, sir.

We will talk about it later.

Every single one of these things can be disputed successfully. Captain WILLENBUCHER. May I have 1 or 2 more minutes, very briefly, Madam Chairman?

Mrs. SULLIVAN. Very briefly, please.

Captain WILLENBUCHER. Yes.

The question involved here in this great problem to the United States is whether we are to reestablish the Caribbean Sea and the Gulf of Mexico area as a bastion of defense, or allow it to deteriorate to an area from which invasion of the United States through a soft underbelly, established by ourselves.

On two occasions in our history, one in the War of 1812, Jackson