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Fifth. That while the treaty of 1846 gives to the Government of the United States the right to maintain and protect the free transit of the Isthmus at the request of Colombia and when the latter is unable to do so, it places it under the obligation of enforcing the respect of Colombia's sovereignty over the territory of the Isthmus, and that the American Government has now not only failed to discharge that duty, but has prevented the Colombian forces from recovering the national sovereignty on the Isthmus, and thus the said treaty of 1846 being in full force, Colombia holds that the Government of the United States has no other reason than that of its own strength and of Colombia's weakness for interpreting and applying it in the manner it has; that is to say, for availing itself of the advantages and rights conferred by the treaty, and refusing to fulfill the obligations imposed thereby.
Sixth. That it is known, from sworn statements, that the garrisons of Panama and Colon were bought with gold brought from the Cnited. States, toward the end of October, by the Panama revolutionists.
Seventh. That if these revolutionists had not relied, and did not now rely, on the armed protection of the United States, whose powerful squadrons on both the Pacific and Atlantic oceans bave prevented, and are preventing, since the 3d of November, the Colombian army from landing its forces, the Panama revolution would have been foiled by Columbia in a few hours.
Eighth. That the Government of Colombia, holding a perfect right that the cession of the compact with the French canal company be not effected without its express consent, has instituted action against the said company before the French courts and asked that the contract made with the American Government be declared null and void.
Ninth. That on the grounds above stated, the Government of Colombia believes that it has been despoiled by that of the United States of its rights and sovereignty on the Isthmus of Panama, and not being possessed of the material strength sufficient to prevent this by the means of arms (although it does not forego this method, which it will use to the best of its ability), solemnly declares to the Government of the United States:
(1) That the Government of the United States is responsible to that of Colombia for the dismemberment that has been made of its territory by the separation of Panama, by reason of the attitude that the said Government assumed there as soon as the revolution of the 3d of November broke out.
(2) That the contract made between the United States and the French canal company is null, since it lacks the consent of Colombia, and the latter has already brought suit against the said canal company before the French courts in the defense of its interests.
(3) That the Government of Colombia does not nor will it ever relinquish the rights it possesses over the territory of the Isthmus of which it is now despoiled by the American forces, and will at all times claim the said rights and try to vindicate them by every means within its reach, and that for that reason the title over the territory of the Isthmus that may be acquired by the United States for the opening of the canal is void, and Colombia reserves to herself the right to claim the said territory at any time.
(4) That if the work of the Panama Canal is undertaken and carried to completion in disregard and trespass of the rights of Colombia, the latter puts it on record that she was denied justice by the United States; that she was forcibly despoiled of the territory of the Isthmus in clear violation of the treaty of 1816, and that she does not relinquish the rights she possesses over the said territory, and holds the United States responsible for the damages caused to her.
(5) That Colombia, earnestly wishing that the work of the canal be carried into effect, not only because it suits her interests but also those of the commerce of the world, is disposed to enter into arrangements that would secure for the United States the execution and ownership of the said work and be based on respect for her honor and rights.
(6) That the United States has never protected Colombia on the Isthmus of Panama against foreign invasion, and that when it has intervened to prevent the interruption of the traffic it has been in help, or be it at the suggestion of the Government of Colombia. In this one instance it did so on its own initiative, with the obvious purpose of protecting the secession of the Isthmus. The guarantee of neutrality, if it were privileged, would estop the sovereign of the land from maintaining order, which is contrary to the fundamental principles of every government; and
(7) That the course followed by the American Government at Panama at the time when Colombia enjoyed peace, after overcoming a revolution of three years' duration, which left her exhausted, is in favor of any rebellion, but not of the maintenance of order, which is contrary to the principles and antecedents of the policy of this great nation as established in the war of secession.
As the treaty with Panama, by which the rights of Colombia on the Isthmus are plucked from her, is now under discussion in the American Senate, I respectfully ask of your excellency that my note of December 23 and the present one be submitted to that high body, so that they may be taken into account in the discussion of the rights of Colombia.
Inasmuch as official charges have been made against my country in the documents sent to the Senate, 1 give notice to your excellency that, in reply to those charges, I will publish my note of the 23d of December and the present one.
I beg that your excellency will answer, as soon as possible, my aforesaid note of the 23d of December. I have the honor to be, with sentiments of the highest consideration, Your excellency's obedient servant,
Mr. Hay to General Reyes.
DEPARTMENT OF STATE,
Washington, January 9, 1904. MR. MINISTER: I have the honor to acknowledge receipt of your excellency's note of the 6th of January, 1904, which I have read with most respectful care.
I find that almost all the propositions brought forward in this communication have been considered and fully answered in advance in the note I had the honor to address you on the 5th day of January. I need, therefore, only briefly refer to a few matters which you have brought forward for the first time in your note of the 6th of January. In the first paragraph of your note you state that your Government regards my note to you of the 30th of December as an intimation that the Colombian forces will be attacked by those of the United States on their entering the territory of Panama. This inference of yours is wholly gratuitous.
We have considered it our duty to represent to you the serious responsibility which would have been assumed by Colombia in a hostile demonstration of the character you mention, and, at the same time, you were assured that the United States Government in that event would reserve its liberty of action and be governed by the circumstances of the case.
Your excellency is pleased to assert that if this Government had not intervened to preserve order on the Isthmus you would have been able to put an end to the revolutionary government of Panama in a few hours. This is hardly consistent with your statement that the late insurrection in Panama lasted three years. No human sagacity can decide with certainty what would have been the duration or result of such a conflict as would have ensued, nor what would have been the amount of bloodshed and devastation which would have afflicted the Isthmus, or the sum of the injury which would have resulted to the world at large if this Government had not taken the action of which you complain.
In the third paragraph of your note you repeat your claim that the action of your Government in respect to the canal treaty was not prompted by any desire for additional compensation, but solely by a regard for your constitutional law. In reply to this I can only refer your excellency to the repeated intimations we received during the discussion of the treaty in Bogotá from the highest and most honorable personages in the Republic, that a large increase of the pecuniary consideration would result in the ratification of the convention; to the attempt which was made to induce the French canal company to pay an enormous sum for permission to dispose of their property; and to the report of the canal committee to the Colombian Senate, suggesting the delay of all proceedings until the coming year, when the extension of the concession might be declared invalid and the nation might be in condition to deal with us without regard to the French shareholders. Your reference to the constitutional question I have already answered. The treaty which Colombia made and then rejected contained no cession of sovereignty; but, on the contrary, preserved the sovereignty of Colombia scrupulously intact.
I do not consider that this Government is called upon to take notice of your statement as to the sources from which the revolutionary government obtained its funds. As this Government had no participation in the preparation of the revolution, it has no concern with the details of its history.
I note with regret the continued protest you make in the name of your Government against the events which have taken place in Panama, and the determination of Colombia not to accept the situation to which they have given rise. I am in harmony with the sincere desire of the Government and the people of the United States in hoping that your Government may see its way to conclusions more in accordance with its true interests and those of its sister American Republics, and that it may not reject the friendly assurances I am charged to convey to you.
I will not for a moment accept the imputation of unfriendly motives or sentiments on the part of this country toward Colombia, and, even if Colombia should persist in assuming a hostile attitude toward us, it will only be after the most careful deliberation and with extreme reluctance that this Government would shape its course in accordance with the deplorable conditions thus created. I am, Mr. Minister, with sentiments of the highest consideration, Your obedient servant,
John Hay. Gen. RAFAEL REYES, Envoy Extraordinary and Minister
Plenipotentiary on Special Mission.
General Reyes to Mr. Tlay.
Washington, January 11, 1904. MR. SECRETARY: I have the honor to acknowledge the reception of your excellency's notes of the 5th and 9th of the present month of January. In the first your excellency answers my statement of grievances of the 23d of December last; in the second your excellency makes a reply to my note of the 6th instant, containing various declarations.
I must state that, notwithstanding the respect that I owe to your excellency's efforts, I find in the present case that my arguments have not been refuted by the otherwise forceful papers to which I am referring. I could abide by and even further fortify my arguments, which the very cause they support make unanswerable, but I can see no result for such a course, since, under the circumstances that surround the debate, there is, on the part of your excellency's Government, no opinion to form, but a decision already reached.
I therefore confine myself to submitting a few remarks on your excellency's position in regard to my request that the pending difference be referred to The Hague tribunal.
True, it lies with the several states to recognize a new member of the family of nations; but haste and circumstances may always involve a disregard of international law while profession is made to maintain it.
The recognition of a new state separated from a friendly nation would be a legitimate act on the part of foreign nations, in so far as they observe strict neutrality between the contesting parties; but it is a violation of the principles that govern the relations of the international community when one of the belligerents is hindered from the exercise of his rights and the use of his forces, and much more so when a public treaty is infringed. The treaty of 1846 being in force between the Governments of the United States and of Colombia, the dilemma that confronted the former when the movement occurred at Panama may not have been that which your excellency contemplates, but rather the following: Either to recognize that Panama was an integral part of Colombia or invest it with the character of a separate entity.
In the first case, whatever be the position of your excellency's Government touching neutrality in intestine strifes, it had no cause for preventing Colombia from subduing the rebellion; in the other case the Government of the United States was obligated to enforce the respect of Colombian sovereignty, and, in either event, it is as untenable a proposition in law to hold obligations toward a nation as fulfilled in one of its rebellions or separated provinces as, in mathematics, to insist that the part and the whole are equivalent. And it is fit here to observe that the reason why I asserted to your excellency that if I had not been prevented from landing the forces under my command on the 19th of November, fifteen days after the rebellion had broken out, it would have been immediately smothered, is that the garrison bought off in Panama did not exceed 200 men.
At the close of the first of the notes hereby answered, your excellency, referring to my proposal to refer to the arbitration of The Hague tribunal the claims that my country desires to have settled in an amicable and decorous manner, states that the questions presented in my statement of grievances “are of a political nature such as nations of even the most advanced ideas as to international arbitration have not proposed to deal with by that process." I must point out to your excellency that the infringement of the treaty of 1846 has resulted in civil consequences of the greatest import which do come within the scope of the jurisdiction of courts. Colombia, for instance, has no claim against Germany, France, England, etc., by reason of the recognition of Panama as an independent State, little as the proceeding may be a friendly act, because she had and has no treaty with those countries that made them guarantors of her sovereignty and ownership; but with your excellency's Government the case is very different, for reasons that may be ignored but which will live as long as the sense of justice, slow but sure, shall endure in this world.
The injuries that Colombia has already suffered and will continue to suffer in consequence of the infringement of the treaty are manifest and actual, and the refusal to entertain her claims as well as her lacking the strength to secure redress put her under the painful necessity of asking of the mighty Government and people of the United States that the tribunal called upon to decide her case be one of unquestionable standing and impartiality. I have such a high opinion of your excellency's sound judgment that I still permit myself to hope that it will bring about a reconsideration of your decision or a suggestion to my Government of some other means of doing Colombia justice in a manner compatible with her honor.
I see from the second paragraph of your excellency's note of the 9th instant that the American Government does not and can not consider as a declaration of war on the part of Colombia the fact that the army of my country should enter Colombian territory, as is that of Panama, for the purpose of subduing the rebellion. This makes me confident that there will be no conflict between the Colombian and American forces when the former take the field on the Isthmus. And I have to point out here that, contrary to the statement made in official documents, Panama never was independent or belonged to any nation other than Colombia since the latter gained her independence. All of the royal letters patent issued from 1533 to 1803 incorporated the prorinces of Darien, Portobelo, and Veragues, which embraced the whole territory of the Isthmus, into the viceroyalty of the new kingdom of