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"ART. 2. Authority is also given to the Executive to enter into an agreement with the Government of the United States respecting the rates of duties to be collected in the Canal Zone and the cities of Panama and Colón: Provided, however, That the said duties shall be uniform throughout the territory named, which agreement shall remain in force until annulled by the National Assembly." Your attention is directed to the fact that the foregoing act of the National Assembly of Panama was enacted eighteen days prior to the date of the order of the President of the United States opening the territory of the Canal Zone to commerce and establishing customshouses therein.
Law No. 88, enacted by the National Assembly of Panama on July 16, 1904, provides as follows:
"ART. 23. The Executive is authorized to reduce the slaughterhouse duty on cattle killed in the districts of Panama, Colón, and Bocas del Toro when the fiscal system to be introduced into the Zone ceded to the United States, in his opinion, requires it."
It can not escape observation that the legislative branch of the Government of the Republic of Panama by legislative enactment declared the Zone to be "ceded to the United States," and dealt with accordingly.
The executive branch of the Government of the Republic of Panama, also, has recognized the right of the United States to exercise the powers of sovereignty in the Canal Zone. By July 17, 1904, His Excellency the President of that Republic officially advised the governor of the Canal Zone as follows:
Maj. Gen. GEO. W. DAVIS,
Governor of the Canal Zone, Present.
REPUBLIC OF PANAMA PRESIDENCIA,
Panama, July 17, 1904.
DEAR SIR: I have the pleasure to inform you that I am fully authorized by law recently enacted by the National Assembly, to reduce or increase our duties and taxes accordingly with the rates which your Government shall establish at the Canal Zone.
M. AMADOR GUERRERO.
To carry out the suggestion contained in the foregoing letter and to enable the executive branch of the Government of the Republic of Panama to pursue the course obviously intended and provided for by the National Assembly of Panama, it was necessary for the United States to make known what duties and taxes would be levied and collected in the Canal Zone. Whereupon the President of the United States directed the issuance of the order of June 24, 1904, of which complaint is now made.
Conclusive, as to the right of the United States to exercise sovereign jurisdiction in the Zone, is the fact that upon the arrival of Maj. Gen. George W. Davis, whom the President had appointed governor of the Canal Zone and delegated to administer the government of said territory, all the officials of the Republic of Panama ceased to exercise any authority respecting the administration of government in that territory, the soldiers and police of that Republic stationed in the territory were withdrawn, the officers of all branches of government stationed in the territory surrendered their offices and were superseded by appointees of the United States.
The withdrawal from the Zone of the officials of the Republic of Panama was pursuant to an order issued by the secretary of state and foreign affairs of that Republic, upon the signing of the agreement respecting the boundary line between the Zone and the cities of Colón and Panama. The order was dated June 17, 1904, and reads as follows:
"Districts of railway line are comprised within Canal Zone and from today authorities and public employees in said Zone cease in their functions as members of the Government of the Panama Republic, according to convention signed yesterday. Advise you for your information.
Upon the assumption of governmental authority over the Zone by the United States it became important that the line of separation beween the Zone and the
Republic of Panama, especially that separating the Zone from the towns of Panama and Colón, should be ascertained and declared. Major-General Davis, governor of the Zone, on behalf of the United States, and his excellency Thomas Arias, secretary of government and foreign affairs, and Ramon Valdez, attorneygeneral of the Republic of Panama on behalf of that Government, entered into and signed a provisional agreement as to such demarkation of boundaries on June 15, 1904.
This agreement was duly published in the Gaceta Oficial of the Republic of Panama. The following extracts are quoted from that publication :
"Whereas * * * it is necessary that the extent and boundaries of the territory ceded to the Government of the United States by the Republic of Panama under the terms and provisions of said convention shall be provisionally agreed.
"SECTION 1. The limits of the Canal Zone, including lands under water and islands ceded *** delivery of which lands, waters, and islands has been made by Panama and possession of which has been taken by the United States are indicated and shown on the attached map * ** and said indicated boundary, or line of division, between the territory ceded by the Republic of Panama to the United States for canal purposes.
"That the entrance channel of the Panama Canal through said harbor of Colón * * * is hereby declared to be a part of the Canal Zone, under the exclusive jurisdiction of the United States."
It is manifest that at the time this agreement was signed both the secretary of state and the attorney-general of the Republic of Panama considered that the rights of the United States in the Canal Zone were something more than those of a private concessionaire or lessee.
The judicial branch of the Government of the Republic of Panama has determined the question as to which government possesses sovereignty over the Canal Zone in favor of the United States. The question was presented by numerous cases of criminal offenses committed in the territory of the Zone since the transfer. The courts of Panama held that they are without jurisdiction and transmitted the papers to the foreign office of their government for transmission of the case and the person of the accused to the Zone authorities. From the correspondence in a large number of instances the following are selected :
Etienne Lamour was arrested, charged with the offense of assault and battery, committed at Emperador on June 5, 1904. The papers were transmitted to the second circuit court, one of the courts of the Republic of Panama, and submitted to the fiscal for report. The fiscal recommended that, as Emperador is situated in the Canal Zone, the court lacked jurisdiction, and therefore the papers should be transmitted to the secretary of justice for submission to the proper American authorities. The papers were so transmitted to the secretary of justice, who returned them to the court with a statement that the question be decided by the court "as the transfer of sovereignty in the districts of the railroad line has been officially communicated."
The letter of the secretary of justice is as follows: [Republic of Panama, national executive power, department of public instruction and justice.]
DIVISION OF JUSTICE, No. 423,
To the Second Circuit Judge in Criminal Matters, City:
Panama, June 30, 1904.
I return to you the proceedings and papers you sent to this office with note No. 275 of the 26th instant, tending to show that Etienne Lamour is guilty of the offense of assault and battery.
This office abstains from deciding what should be done with the said proceedings, as it considers that you are the one that should do so, as the transfer of sovereignty in the districts of the railroad line has been officially communicated. God preserve you.
JULIO I. FEBREGA. THIRD CIRCUIT COURT, Panama, July 12, 1904.
As by reason of the delivery of the Canal Zone the jurisdiction which the judges of this circuit exercised over the districts of Emperador and Gorgona has ceased, the undersigned can not continue to take cognizance of this matter.
Therefore let these proceedings be sent to the secretary of government, through the secretary of public instruction and justice, in order that he may transmit them to the North American authority competent to take cognizance of the case in question.
Let it be notified and recorded.
Another case proceeded as follows:
ALFONSO FABREGA, Judge.
Victor Guillot, a French citizen, was accused by his employer of stealing at Culebra on May 5, $65 gold, $4 in American bank notes, and about 10 in silver. Preliminary investigation was conducted by the police inspector of Culebra, and showed that the money was stolen from the pockets of the complainant by cutting through them while he was asleep. The papers were transmitted by the police inspector to the first circuit court for criminal matters of the Republic of Panama, and thence to the second circuit for criminal matters; they were referred to the fiscal of the latter court, who reported that the hamlet of Culebra was situated within the provisional demarcation of the Canal Zone, and that the circuit judge lacked jurisdiction, and that the papers should be transmitted to the secretary of public instruction and justice for submission to the proper American authorities.
The papers were transmitted by circuit judge to superior judge for decision. The fiscal of the superior court recommended the transmission of the papers to the department of foreign affairs and that the accused be held subject to said secretary's orders, which recommendation was approved by the superior judge. The secretary of government and foreign affairs for the Republic of Panama transmitted the papers to the governor of the Canal Zone in a communication reading as follows:
DEPARTMENT OF GOVERNMENT AND FOREIGN AFFAIRS,
Panama, July 9, 1904.
Mr. GOVERNOR: I have the honor to transmit to you herewith the record of the preliminary proceedings instituted against Victor Guillot for robbery committed within the jurisdiction of the Canal Zone, with the request that you issue the proper orders to have these preliminary proceedings duly continued.
I have to inform you, for such action as you may deem proper, that the accused Guillot is confined in the jail of this city.
With expressions of the highest consideration, I have the honor to be,
Your obedient servant,
Gen. GEORGE W. DAVIS,
Governor of the Canal Zone, City.
Raimundo Lizano was brought before the superior court at Panama, charged with the crime of theft, perpetrated in the territory of the Canal Zone. The case was sent to the first circuit court for criminal matters. The decision of that court was as follows:
THIRD CIRCUIT COURT,
Whereas the crime involved in these proceedings was committed on territory of the Canal Zone, where the undersigned has no jurisdiction, with the concurrence of the fiscal, it is decided that these proceedings be sent to the secretary of state for transmission to the proper person. Let it be communicated and recorded.
ALFONSO FABraga, Judge.
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.
On April 28, 1904, Congress enacted an act entitled "An act to provide for the temporary government of the Canal Zone at Panama, the protection of the canal works, and for other purposes."
Said act provided as follows: "SEC. 2.
All the military, civil, and judicial powers, as well as the power to make all rules and regulations necessary for the government of the Canal Zone, and all the rights, powers, and authority granted by the terms of such
treaty to the United States, shall be vested in such person or persons and shall be exercised in such manner as the President shall direct for the government of said Zone. ***"
Pursuant to the provision of said act, the President directed that all the governmental power in and over said Canal Zone should be vested in the Isthmian Canal Commission, to be exercised under the supervision and direction of the Secretary of War.
The power of legislation respecting the government of the Zone was conferred upon the Commission.
Maj. Gen. George W. Davis, U.S. Army, was appointed governor of the Canal Zone by the President and ordered to proceed at once to the Isthmus of Panama, and in the name of the President and for and on behalf of the United States, as the chief executive in the Canal Zone, to see that the laws are faithfully executed and maintain possession of said territory; he was also vested with pardoning power.
The President further designated what laws should be continued in force in the territory of the Zone, by what officials said laws should be administered, and provided for the temporary exercise of the judicial power.
The Isthmian Canal Commission, by the exercise of the legislative power vested in them, enacted laws for the organization and establishment of the executive and judicial branches of the government of the Canal Zone, the establishment and government of municipal subdivisions, and for the collection of revenues, a postal service, the sanitation of the Isthmus, quarantine of the ports, policing of the Zone, a penal code, and a code of criminal procedure, besides other enactments required for the proper administration of the government in the Zone.
In full confidence that it had secured the right to exercise all powers of sovereignty in the Zone, the United States paid to the Republic of Panama $10,000,000 in gold and to the French Canal Company $40,000,000. The Congress appropriated $150,000,000 to complete the canal. The President appointed the Isthmian Canal Commission, and the work of construction was immediately entered upon. Agencies of government have been established in the Zone and the necessities of the social organism provided at the expense of the United States.
I note your reference to the exercise of the sovereign powers by the United States over the harbors constituting the Atlantic and Pacific entrances to the canal.
As understood by me, your contention is that whatever may be the authority of the United States in other parts of the Canal Zone, this Government is without authority at these two points (Cristóbal and La Boca) for the reason that these points are within the harbors adjacent to the cities of Colón and Panama, and therefore excluded from the grant made by Article II of the convention. For convenient reference, I quote a part of said article:
"The Republic of Panama grants to the United States in perpetuity the use, occupation, and control of a zone of land and land under water for the construction, maintenance, operation, sanitation, and protection of said canal of the width of ten miles, extending to the distance of five miles on each side of the center line of the route of the canal to be constructed, the said zone beginning in the Caribbean Sea three marine miles from mean low-water mark and extending to and across the Isthmus of Panama into the Pacific Ocean to a distance of three miles from mean low-water mark, wtih the proviso that the cities of Panama and Colón and harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant."
A strip of land 5 miles wide on either side of the entrances to the canal would include all of the city of Colón and substantially all of the city of Panama. The Republic of Panama desires to retain sovereign jurisdiction over the inhabited portions of the territory of these municipalities, hence the exemption in the grant. In this connection attention is called to the fact that if the Republic of Panama intended to retain the right to exercise sovereign jurisdiction over the entire Zone, this exemption would have been unnecessary.
You will recall that when this convention was being considered by the United States Senate the opposition to its confirmation suggested the possibility that the Republic of Panama might advance, thereafter, the contention now presented. Thereupon the matter was brought to the attention of Mr. BunauVarilla, the duly accredited representative of the Republic of Panama, by whom said convention was negotiated.
In response to the representative of the Republic of Panama, by a letter dated January 19, 1904, advised the United States as follows:
"I do not hesitate, sir, to give you in my name and in the name of my Government the following explanation on the meaning of the clauses which have been deemed not sufficiently outlined by the committee of the senate:
"First. Harbors adjacent to the cities of Panama and Colón. The harbors adjacent to the cities of Panama and Colón (adjacent comes from adjacens— lying at the side of) are, in my understanding, the harbors in contact of said cities, and putting them in communication with the sea. These harbors are completely separated from and independent of the harbors of the canal or the harbors situated at its two entrances, and which ships going through the canal will have to use.
"The harbor at the Colón end of the canal is an interior harbor, made by dredging in the bay of Fox River, adjacent to the city of Christopher Columbus, and protected by a breakwater.
"The harbor adjacent to the city of Colón is constituted by a series of wharves built in the open sea without any artificial shelter. A ship lying in the Colón Harbor and leaving it to go into the canal harbor will have first to go into the open sea, and then pass the breakwater which protects the entrance of the canal harbor.
"At Panama the canal harbor is also an interior harbor, situated at La Boca, several miles from the wharf which forms the Panama Harbor, a wharf built in open sea like those of Colón. The very same thing may be said of the Panama as of the Colón harbors. Both are local harbors, strictly limited to the service of the respective townships and out of the way of the canal and its approaches to its entrance.
"There is not a shadow of probability that the harbor adjacent either to Panama or Colón will ever be used for anything but the local trade of the town, and therefore the United States will never necessitate to do anything in relation to the canal with any part of them."
The administration of the Government of Panama, being advised by BunauVarilla of this letter, wrote him as follows:
"YOUR EXCELLENCY: Most opportune indeed was your excellency's communication of January 19 to the secretary of state, dissipating, as it did, the new obstacles raised to prevent the prompt approval of the treaty by the American Senate.
"All the matters which your excellency mentions were at the same time discussed with the Hon. Mr. Buchanan.
"F. V. DE LA ESPRIELLA.”
The foregoing correspondence being brought to the attention of the secretary of government and foreign affairs for the Government of Panama, he replied as follows: "OFFICE OF THE SECRETARY OF GOVERNMENT
"AND FOREIGN RELATIONS, "DEPARTMENT OF FOREIGN RELATIONS, "Panama, August 23, 1904.
"SENOR MINISTER: I have before me your excellency's attentive communication, No. 23, of the 16th instant, wherein you refer to the letter which Mr. Bunau-Varilla addressed to Mr. Hay, Secretary of State, of the United States, on the 19th of January of the present year, with regard to the interpretation of certain clauses in the treaty of November 18, 1903, a copy of which your excellency was good enough to send me, and the existence of which I had forgotten. As was natural, I ordered that a search be made of the archives in this office for the missing document, and it was found, the original of which your excellency informs me will be presented to the minister plenipotentiary and envoy extraordinary of Panama in Washington."
The authorities of the Canal Zone report that for a limited period following the promulgation of the President's order establishing ports of entry at the harbors at the entrance of the canal said orders were acquiesced in by the Republic of Panama without protest. Several vessels were cleared from the port of Panama, in the Republic of Panama, for the port of Ancon (La Boca), in the Canal Zone, in which port the vessels were received by the American authorities.