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of the law to be carried out. The action proposed by Colombia would constitute pro tanto an annulment of Article I, would render impossible the execution of the law, and is wholly inadmissible. Equally inadmissible would be any action by the canal company in the direction indicated which would destroy rights it has agreed to convey to the United States.
Nor upon the question of an authorization by Colombia of the transfers proposed can it be admitted that any further or other authorization than that contained in Article I of the treaty is required or would be proper.
So far as the Panama Railroad is concerned, it is enough to point out that articles 28 and 29 of its contract with Colombia, and which contain the only provisions which impose any restrictions upon any alienations of property connected with that company, have no bearing on any transaction now in contemplation. These articles declare that “the present privilege can not be ceded or transferred to any foreign Government” under penalty of forfeiture. No transfer of this privilege by the company is contemplated, nor, indeed, any transfer by the company of anything. The purchase by the United States from the New Panama Canal Company of certain shares of the railroad company is the only operation now proposed, and this does not affect the railroad company itself. To this transfer of shares the railroad company is not a party, and in it the company has no part. It neither inakes it nor can it prevent it. Plainly, therefore, the provisions of the company's contract with the Colombian Government can have no application to such a transaction. This is irrespective of the rights in relation to the railroad property and concessions which the United States acquires under and pursuant to the provisions of the treaty itself.
With regard to the New Panama Canal Company the situation is different, in this respect, for that company will make a direct transfer of all its property and concessions to the United States, and such a transfer was originally forbidden by articles 21 and 22 of the Salger-Wyse concession of 1878.
Passing, for the moment, the terms of the treaty by which consent is given, the consent of the Colombian Government to the proposed sale has been given so repeatedly and in so many different ways and has been so frequently and officially brought to the notice of my Government by the ministers plenipotentiary of Colombia duly accredited to the United States, as to make it impossible for the executive government of that Republic to retract it. The entire action of my Government upon the subject has been taken in reliance upon these official assurances of the consent of Colombia, and any withdrawal of qualification of that consent would be wholly inconsistent with such assurances.
In a memorandum presented by Dr. Martinez-Silva, then minister plenipotentiary of Colombia to the United States, to the Department of State at Washington on March 27, 1901, my Government was officially assured that the Republic of Colombia would authorize the canal company to transfer its concessions to the United States, provided only that the latter agree with Colombia upon the terms on which the canal is to be constructed and operated by the United States.
On April 29, 1901, the Colombian minister wrote M, Maurice Hutin, then president of the canal company, requesting him to state generally the basis on which the company would transfer its property to the United States, assuming that the consent of Colombia be given.
This letter M. Hutin answered on May 1, 1901, and a copy of his answer was by the minister handed to Admiral Walker, president of the Isthmian Canal Commission. M. Hutin thereupon took up negotiations directly with Admiral Walker, of which fact he notified the minister by a letter of May 6, 1901. In answer to this letter the minister wrote M. Hutin on May 7, 1901, approving his action and stating to him the fact that it was stated in the memorandum submitted by him to the Department of State “no condition is formulated relative to the sale of the private rights and interests of the company."
It is in reliance upon these assurances, either made directly to my Government by the duly accredited minister of Colombia, or communicated to it through his act, that the action resulting in the present treaty has been taken, and to raise new conditions and impose new terms upon the consent thus freely tendered, or to cancel any provisions of the concessions, would be a complete departure from them. The Government of Colombia initiated the negotiations, and it can not be conceived that it should now disclaim its own propositions, nor can my Government acquiesce in such a course.
It is further to be noted that the Republic of Colombia is the second largest shareholder in the New Panama Canal Company. At a meeting of the shareholders of this company held on December 21, 1901, at which the board of directors was authorized to make the proposal of sale to the United States, which has been accepted, the Republic was represented by M. Uribe, her consul-general at Paris, specially accredited for that purpose, who was one of the officers of the meeting and voted the shares of Colombia in favor of the sale. Similarly, at the meeting of the board of directors of the company on December 23, 1901, M. Samper, the representative of the Colombian Government on the board, voted in favor of the sale.
It is not to be supposed that these representatives of Colombia acted without or contrary to instructions, nor has their action ever been disavowed by their Government.
These various considerations show that the Republic of Colombia is fully committed to the United States, wholly apart from her express agreement by the treaty, to consent fully and freely to the acquisition of the property of the New Panama Canal Company by the United States, without other terms or conditions than those embodied in the treaty. It is not necessary here to consider the questions of good faith toward the canal company which would be raised by new exactions of that company at this time.
The foregoing considerations, however, though sufficient in themselves to justify my Government in declining to recognize any right in the Republic to limit the consent given by article 1 of the treaty by any terms or conditions of any kind, are less important than others arising from the actual negotiations attending the making of the treaty. These other considerations render it impossible that any such new limitations should even be considered and give any attempt by Colombia in that direction the character of a serious departure from the agreement reached between the Executive Governments of the two nations.
The treaty in its present form is the result of certain modifications in the original form presented to the Department of State by Mr. José Vicente Concha, minister plenipotentiary of Colombia to the United States, on March 31, 1902. This form of treaty represented the original proposal of Colombia to the United States, and was presented by Mr. Concha shortly after the recall of the former minister, Mr. Martinez-Silva. In this draft the terms of article 1, by which Colombia authorizes the sale of the New Panama Canal Company to transfer its property to the United States, were the same as in the actual treaty. In fact, this article has undergone no change in any of the negotiations, and it now expresses Colombia's original proposal.
No change in it was ever even suggested by Colombia, in all the discussions by which the presentation of the original treaty was followed, until November 11, 1902. On that day Mr. Concha submitted to the Department of State a memorandum of certain changes which he desired made in the treaty as it then stood. In this memorandum a modification of article 1 was proposed in the following terms:
“This same article shall clearly state that the permission accorded by Colombia to the canal and railroad companies to transfer their rights to the United States shall be regulated by a previous special arrangement entered into by Colombia with the said company, and for which they have been notified that they are to appoint an attorney at Bogota."
To this proposal the Department of State answered that “the United States considers this suggestion wholly inadmissible.” The proposition was then abandoned by Colombia, and the treaty, as has been said, was signed by authority of her Government, without any modification of the absolute authorization to the company to sell.
It will thus be seen that this proposition to make Colombia's consent to the sale dependent upon an agreement between that country and the canal company is not new; that it has already been made to my Government and rejected, and that it was only upon the abandonment of it that the treaty was signed. It is impossible that my Government should even discuss the matter any further or permit this rejected and abandoned proposition to be put in force under any form.
The argument which it is understood has been advanced by Colombia in support of her pretensions upon this point (that the concession of the canal company, by its approval by the Colombian Congress, has become a law of Colombia, and must be obeyed as it stands, until by another law it has been amended) can be allowed no force. The contract of concession was approved by the Colombian Congress in obedience to the provisions of Title VI, article 76, of the constitution of Colombia. The present treaty is to be ratified by the Congress of Colombia under the provisions of the same title and the same article in the same way. If every force be allowed to the constitution of Colombia, it can not be admitted that the approval of the treaty by the Congress should not be as effectual as approval by the same body of a new contract between the company and Colombia. But the considerations which led to the rejection of the proposal of the Colombian minister in his memorandum of November 11, 1902, are of themselves decisive of the point.
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 railroad companies are 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 which it can never be permitted to exercise in the diplomatic affairs and international relations of my 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 equivalent advantages secured to her by the United States.
It may be noted further that such a course would practically nullify article 1 of the treaty. That article grants an unconditional consent to the sale. But if 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 1 of the treaty would never practically take effect. Such a possibility alone renders any such plan impossible.
Upon every ground, therefore, the present proposals of the Colombian Government to make its consent to the sale to the Uuited States of the property and rights of the New Panama Canal Company, contained in article 1 of the present treaty, dependent upon arrangements between it and either the canal or railroad company, is wholly inadmissible, and if the subject arises you will inform that Government that the United States can approve no such dealings between either of these companies and Colombia relating either to that consent or the sale. I avail myself, etc.,
(Signed) A. M. BEAUPRÉ.
Mr. Beaupré to Mr. Hay. No. 45.]
LEGATION OF THE UNITED STATES,
Bogotá, June 10, 1903. Sir: Evidently a decided effort is being made to change public opinion into a more favorable consideration of the canal convention. Many strong men are now supporting it who but a short time ago were with the opposition. The great majority of people still continue to believe, however, that the convention will not be ratified.
Mr. Mancini, the local agent of the Panama Canal Company, has informed me that he had received an official note from the Colombian Government, stating that it did not think that the convention would be ratified, because of the opinion that the compensation was insufficient, but that if the canal company would pay to Colombia about $10,000,000 ratification could be secured. Mr. Mancini has notified his company of this note.
Members of Congress are arriving for the session which commences on June 20 instant. I am, sir, your obedient servant,
A. M. BEAUPRÉ.
Mr. Beaupré to Mr. Hay. No. 48.]
LEGATION OF THE UNITED STATES,
Bogotá, June 13, 1903. Sir: Referring to the Department's telegram of the 9th instant, elsewhere confirmed, I have the honor to advise you that I have had an interview with the minister for foreign affairs, in which I communicated to him the substance of my instructions, and also left with him a memorandum containing a substantial copy of said telegram.
The minister's first question was as to what action by our Congress was contemplated—whether it meant action against Colombia, or the adoption of the Nicaragua route—to which I replied that I had received no other instructions than those contained in the telegram, and that I could not, therefore, aid him in construing it.
He said in substance, that it must be understood that no matter what the Government's actions or desires may have been in the preliminary negotiations, a treaty could not be made without the approval of Congress; that this was true in the United States as well as Colombia; that the Colombian Congress was very soon to meet, and that upon it would devolve the consideration of all these matters.
I replied that bis propositions were true enough in the abstract, but that in view of the facts, as outlined in the telegram, it seemed to me that it was incumbent upon the Government to acquaint the Congress with all the circumstances connected with the negotiations up to the signing of the convention, and to use all its influence to secure a ratification.
He said that he would lay the matter before the vice-president for his consideration. I am, sir, your obedient servant,
A. M. BEAUPRÉ.
Mr. Beaupré to Mr. Hay.
UNITED STATES LEGATION, Bogotá, June 17, 1903. (Received 6.10 p. m., June 25.) June 17, 4 p. m. Members of Congress arriving. Opposition to the ratifications of the canal convention is very strong. Public opinion is that the convention will not be ratified.
Mr. Beaupré to Mr. Hay.
UNITED STATES LEGATION, Bogotá, June 17, 1903. (Received June 25, 1903, 6.15 p. m.) I can not obtain from the Colombian Government withdrawal of the quarantine at Panama, or any modification of orders. The matter left to governor of Panama, with discretionary power.
Mr. Beaupré to Mr. Hay. No. 55.]
LEGATION OF THE UNITED STATES,
Bogotá, June 20, 1903. Sir: Referring to my No. 48, of the 13th instant, I have the honor to report that I have received from the minister for foreign affairs a
counter memorandum relating to the Department's telegram of the 9th instant, and to the Panama Canal negotiations. A copy and translation of the same are herewith inclosed. I am, sir, your obedient servant,
A. M. BEAUPRÉ.
DEPARTMENT OF FOREIGN AFFAIRS,
Bogotá, June 18, 1903.
In the memorandum presented to this department by the minister of the United States, personally, on the 13th of the present month, he says he has received instructions from his Government, by cable, to state that it seems that the Government of Colombia does not appreciate the gravity of the situation; that the negotiations for the opening of the Panama Canal were initiated by Colombia, and energetically pushed during several years; that the propositions presented by this Republic were finally accepted with slight modifications; that in virtue of the agreement, the Congress of the United States reversed its former judgment and decided for the Panama route, and that if Colombia rejects the treaty or unduly delays its ratification, the friendly understanding between the two countries would be so seriously compromised that the Congress of the United States might take measures which would be regretted by every friend of Colombia.
This ministry deems it indispensable to make the following observations, which it respectfully presents to the minister for transmission to his Government:
The fact of Colombia having initiated the negotiations does not demand the approval of the same by that Government, for the approval of Congress is necessary to the ratification of them, to which is given the constitutional power of approving or disapproving the treaties which the Government makes; this formality was recognized in the beginning by the Government of the United States in the course of the negotiations, as is seen in articles 25, 26, and 28 of the project of the convention signed November 28, 1902.
One of those articles (the twenty-fifth) says, textually, that the convention shall be ratified at a time when it is approved by the legislative bodies of both countries, and that condition is stipulated in articles 25 and 28 of the convention signed in Washington on January 22, 1903, the last of which articles in the part pertaining to this matter is as follows:
“The convention, when signed by the contracting parties, shall be ratified according to the laws of the respective countries, and shall be exchanged at Washington within a term of eight months from this date, or earlier if possible.”
The Government of the United States sent the convention to the Senate with the request that it be confirmed, and in that body the debate was so long and vehement that it was not approved until in the following extra session, and if it had been rejected it would have been without any diminution of any right of Colombia, just as its rejection here will be without any diminution of any right of the United States.
Having proposed a negotiation does not necessarily imply that it is to be approved, either in whole or in part, by the legislative body of the country which began it. Among international instances which prove this statement can be cited the instance which occurred between the same United States of America and England over the projection for the abrogation of the Clayton-Bulwer treaty of 1850, which project, if I am not badly informed, was initiated by the Government of the United States, and notwithstanding that the Senate proposed that it be.modified in the following terms:
"It is determined, however, that none of the preceding stipulations and modifications in paragraphs 1, 2, 3, 4, and 5 of this article (2) shall apply to the methods which the United States believe it necessary to make to secure with their military forces the defense of the United States and the maintenance of the public order."
The British Government did not accept this modification, and this refusal deferred, for a long time, the approval and ratification of the treaty.
If the initiation of negotiations of a convention should imply the correlative obligation of approval by the legislative body, the submitting of such convention to their decision would be an illusion (superfluous), for the power to make treaties with foreign powers would be in reality vested solely in the executive power, which is openly contrary to the spirit and the letter of the constitution of this Republic.