treaty of March 7, 1905, exercises police powers and other general attributes of de facto sovereignty within the territory. At the same time it is undeniable that the de jure sovereignty has been in Colombia and Panama since the Loubet award, accepted as it is by Panama and Costa Rica, so that either by virtue of that award or of the pending boundary treaty the territory will ultimately come under the jurisdiction of Panama. Meanwhile, certain American citizens, acting upon the assurances of the authorities of Colombia and Panama, and in accordance with the laws of those States, have gone into this territory, expended large sums in developing it, and by virtue of such acts have acquired certain possessory rights thereunder and are entitled to protection therein. In the adjustment of any conflicting claims of title which may arise or have arisen it would be improper for this department to interfere. But, on the other hand, after rights, possessory or otherwise, in this property have been acquired in good faith by American citizens and have become vested in them, the department is of opinion that they should not be divested except by due process of law by ejectment or other appropriate legal action.

In the department's conception of this matter Costa Rica exercises at present a temporary de facto sovereignty over the territory included in the McConnell concession, subject of right to be divested at any time at the will of Panama, but actually continuing until such time as the pending boundary treaty is ratified. She exercises the powers of government that are necessary for the orderly administration of the district, but should not use this sovereignty in such a way as to impair the rights of the de jure sovereign of the territory. Her functions of government are limited by her tenure, which is of a temporary and precarious character. Her duty is to preserve the property, not to destroy it, and hand it over to her successor without the commission of any acts tending to impair the ultimate rights of the de jure owner. It is obvious, for instance, that it would have been an unwarranted exercise of sovereign power for Costa Rica to grant a concession to McConnell for the construction of his railroad beyond the termination of the de facto sovereignty of Costa Rica. In a word, Costa Rica stands in the position of a usufructuary entitled to the fruits and profits of the territory during the period of tenure, and it can not be admitted that Costa Rica can in any way destroy or impair the substance of the usufruct. In like manner it is equally clear that the title to property rights in this territory acquired since the Loubet award are determinable according to the laws of Colombia and Panama, and it follows that Costa Rica can rightfully exercise no jurisdiction within the territory which Panama could not exercise; and as Panama can not rightfully deprive possessors of title property acquired under Colombian laws, which remained in force after the secession of Panama, without due process of law, it would be equally unjust for Costa Rica to attempt to do the same thing.

In considering the present connection of Panama with the territory in question, it would appear that that State has consented that Costa Rica continue as the de facto sovereign until the ratification of the treaty. If Panama should interfere and seek to exercise at present jurisdiction north of the Sixola River, this would be inconsistent

with her recognition of Costa Rica's temporary possession in that district. In the view of the department, as long as the latter Government is the sovereign in possession, whatever attributes that accompany or attend possession should be conceded to her, including the right to control, by taxation or otherwise, importations, etc., at Gadocan. But the ultimate attributes of sovereignty belong to the ultimate owner, and for this reason it is proper that Panama should see to it that rights and titles which have accrued concerning lands within this area should not be prejudiced by the State having accidental and temporary jurisdiction. It is suggested that this result may be reached by discreet representations by Panama to Costa Rica, perhaps by remonstrance or otherwise, rather than by a physical attempt to assert such jurisdiction.

You are instructed to call the situation as above set forth, together with the views of the department, to the attention of the Government to which you are accredited, and to say that this Government insists that the property of Mr. McConnell and those whom he represents be protected and preserved, without any destruction thereof, until such time as the ultimate rights of the parties may be passed upon by a court or courts of competent jurisdiction.

In this connection, however, it is proper to state that the department disclaims any intention to interfere in this case to the prejudice of the rights of the United Fruit Company, or any other American interest already acquired in the territory immediately in question.

I am, sir, etc.,

ELIHU ROOT.

TREATY RIGHT OF THE UNITED STATES TO MAINTAIN PUBLIC PEACE AND ORDER IN PANAMA.

No. 31.]

The Secretary of State to Chargé Sands.

DEPARTMENT OF STATE, Washington, February 26, 1906. SIR: I inclose for the files of your legation copy of a letter addressed by the department to the Secretary of War in regard to the exercise by the United States of authority to maintain public peace and order in the territory of the Republic of Panama, provided for in the constitution of that Republic and stipulated in the treaty of November 18, 1903.

I am, sir, etc..

E. ROOT.

[Inclosure.]

The Secretary of State to the Secretary of War.

DEPARTMENT OF STATE, Washington, February 21, 1906.

SIR: I have the honor to bring to your attention certain matters respecting the exercise by the United States authority to maintain public peace and order in the territory of the Republic of Panama, provided for in the constitution of the Republic and stipulated in the treaty of November 18, 1903.

The constitution of Panama provides as follows:

"The Government of the United States of America may intervene in any part of the Republic of Panama to reestablish public peace and constitutional order

in the event of their being disturbed, provided that that nation shall, by public treaty, assume or have assumed the obligation of guaranteeing the independence of this Republic."

This constitution was adopted February 13, 1904. The treaty was signed November 18, 1903, and ratified by the Republic of Panama December 2, 1903, but was not ratified by the United States until January 23, 1904.

With reference to the authority under consideration, the treaty provides: "Article I. The United States guarantees and will maintain the independence of the Republic of Panama."

"Art. VII. The Republic of Panama agrees that the cities of Panama and Colon shall comply in perpetuity with the sanitary ordinances, whether of a preventive or curative, prescribed by the United States, and in case the Government of Panama is unable or fails in its duty to enforce this compliance by the cities of Panama and Colon with the sanitary ordinances of the United States the Republic of Panama grants to the United States the right and authority to enforce the same.

"The same right and authority are granted to the United States for the maintenance of public order in the cities of Panama and Colon and the territories and harbors adjacent thereto in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order.”

In my opinion these provisions do not contemplate relieving the Republic of Panama from all responsibility for the maintenance of public peace and constitutional order, nor do they place the onus of such maintenance, in the first instance, upon the United States. In view of this department it is incumbent upon the Republic of Panama to make provision for the enforcement of the civil authority of the State by a reasonable police or constabulary organization, which, under ordinary conditions, will secure the service and enforcement of judicial writs, lawful executive orders, and the due and regular application of the laws. The United States and the world at large are vitally interested in the enforcement of the laws, rules, and regulations intended to accomplish the sanitation of the Isthmus of Panama; and the provisions of Article VII of the treaty above quoted manifestly contemplate participation by the United States in the adoption and execution of those laws.

There exists in all nations a body of laws intended to regulate the domestic or internal affairs of the government, such as the relations which the citizens sustain to each other and to the communities in which they live. In general it is by the enforcement of these laws that peace and order are maintained; and their enforcement devolves upon the civil authorities in the first instance, and it is essential to the very existence of the State of Panama that it should make adequate provision for the administration and execution of said laws. Among the laws of this character is that providing for elections. In all times and places conditions may arise when the enforcement of any law, however salutary, may occasion public excitement and clamor, resulting in disturbances with which the civil authorities are unable to deal. In all republics, and especially those of Central and South America, such periods of excitement are liable to be brought about by the elections or the declared results thereof. In the Republic of Panama elections are regulated by laws enacted by the National Assembly. The enforcement of the provisions of said laws devolves upon the civil authorities of that Republic, and the United States can not participate therein further than advise the constituted authorities to take care that said laws are executed impartially and with fidelity to the constitution and great principles upon which just governments are founded.

Having in mind this view of the relations between the United States and the Republic of Panama, and in response to a memorial presented to the Secretary of War by the national directorate of the Liberal party of Panama on the occasion of your recent visit to the Isthmus, by letter dated December 4, 1905, I instructed the American minister to Panama as follows:

The Liberal party should be informed that the Government of the United States, while guaranteeing the independence of the Republic of Panama does not propose to interfere with that independence. It is the earnest wish of the United States that there shall be a fair, free, and honest election in Panama. because it considers such an election necessary to the peace and prosperity of the country and the stability of its Government. As between the two parties, the United States stands in an attitude of perfect impartiality and will do nothing to help either the party in power or the party of opposition. The United States will exercise its rights under the treaty for the maintenance of order in

Panama, Colon, and upon the canal strip, and will not permit any interference with the peace and order of either of those cities or of that territory which can be prevented by the exercise of its treaty rights, and it will not go beyond its treaty rights.

"You will communicate a copy of this instruction to the Government of Panama, with the statement that the Government of the United States thus answers the Liberal party in such a way as it is hoped will correct any misapprehension which they may have regarding the conduct of the United States, and without for a moment entertaining the thought that he Government of Panama will fail in any respect to secure to the people a perfectly fair, free, and honest election. You will at the same time suggest to the Government of Panama that, in view of the charges made in advance by the Liberal party, which are liable to be reiterated after the election, it is desirable to secure the most unimpeachable and satisfactory evidence of the fairness of the election by means of observation of competent witnesses during the conduct of the election."

Further consideration of this instruction strengthens the belief of the correctness of the position taken therein, intended, as it was, to advise the Government and people of Panama that there rested upon them the responsibility for the due and proper exercise of the civil authority of the state, and they should not expect the United States to relieve them of the trouble and expense involved, nor to protect them for the inevitable results of indifference and indiscretion on their part.

However, if it should happen (which may God forbid) that by reason of excitement or passion induced by the turmoil of a political campaign or dissatisfaction of a large number of people as to the result of the approaching elections a condition should arise with which the civil authorities are unable adequately to deal, and therefore make it necessary to appeal to the military authority of the State, a different question will be presented.

The United States is bound to assume that the elections in Panama will be conducted in a legal manner, affording a free exercise of the right of franchise, an honest count and declaration of result, and that if frauds or other illegal measures are attempted the legal remedies provided by the law of the Republic of Panama will be pursued. If, however, any considerable number of persons were to assemble or band together for the purpose of preventing the due and regular operation of the election law, or to compel by force a desired result, or to nullify the result of the elections or overthrow the constituted Government, or seize upon the offices of the existing Government, by force of arms, the questions that will then call for consideration and determination will be:

Do the existence and operation of such armed body or band (1) imperil the maintenance of the independence of the Republic of Panama; (2) disturb the maintenance of public order in the cities of Panama and Colon and the territories and harbors adjacent thereto; (3) is the Republic of Panama able and willing adequately to deal with the existing emergency; (4) do the operations of said bands interfere with the work of canal construction or the administration of the government of the Canal Zone?

These are, in the main, military questions, and therefore to be received by military authorities of the United States. The United States possesses the inherent right to protect its property and enforce its rights wherever located and wherever imperiled. If circumstances require that a military force of the United States be sent into foreign territory and there enforce the rights of this nation by force of arms, such proceeding would be an act of war, unless assented to by the nation exercising sovereignty over said territory. In the instance of Panama the constitutional provision above quoted supplies the necessary assent provided, the injury anticipated results from disturbance of the public peace and constitutional order. The United States has entered upon the great work of constructing the Isthmian Canal, and for that purpose had acquired rights, purchased property, and contracted obligations aggregating more than $50,000,000. The duty of protecting these rights and this property devolves upon the President. The work of constructing the Isthmian Canal and the government of the Canal Zone are committed to the President, and by his order, issued pursuant to authority conferred by Congress, are subject to the direction and control of the Secretary of War. The construction of the Isthmian Canal is therefore a national endeavor of the United States, and measures which interfere with that work and are calculated to obstruct, hinder, or delay its accomplishment are interferences with the rights and privileges of the United States and must be dealt with accordingly. In the event that an

occasion should arise or an emergency appear calling for action by the authorities of the United States charged with the conduct of the affairs of the United States on the Isthmus, it is advisable that said officials should be possessed of instructions which would advise them as to their duty and the scope of their authority that they may act both promptly and advisedly and deal with the situation adequately, without exceeding their jurisdiction.

I have the honor, therefore, to request that you will instruct the governor of the Canal Zone as to when and under what conditions he is to deem it his duty to call upon the military forces of the United States stationed on the zone to reestablish peace and order in the territory of the Republic of Panama. I have, etc.

ELIHU Root.

Minister Magoon to the Minister of Foreign Affairs.

ANCON, May 9, 1906.

EXCELLENCY: I have the honor to transmit herewith, for the information of your excellency's Government, a copy of a communication addressed to me under date of April 26, by the honorable the Secretary of War of the United States respecting the exercise of the United States of authority to maintain public peace and order in the territory of the Republic of Panama, together with a copy of the communication addressed to the Secretary of War by the honorable the Secretary of State of the United States, under date of February 21. 1906, on the same subject.

I have, etc.,

CHARLES E. MAGOON.

[Inclosure.]

The Secretary of War to Minister Magoon.

WAR DEPARTMENT, Washington, April 26, 1906. SIR: I am in receipt of the letter dated February 21, 1906, from the Secretary of State, respecting the exercise by the United States of authority to maintain public peace and order in the territory of the Republic of Panama, provided for in the constitution of that Republic and stipulated in the treaty of November 18. 1903. I concur in the views expressed by the Secretary of State, and a copy of his letter is transmitted herewith for your information and guidance. It is evident from the letter of the Secretary of State that in his previous instructions to you, to which he refers, he had not intended to restrict in any way the power of the United States to maintain peace and good order, not only in Panama and Colon, but in any adjacent territory of the Republic in which domestic insurrection or violence would obstruct the great purpose of the United States to build the canal. His instructions to you were intended to emphasize the dignity and sovereignty of the Republic of Panama as a nation and a government, and to point out that it would be improper for the United States to interfere with the elections or other internal affairs of the Republic of Panama, and to take steps to maintain peace and order in its territory in the first instance; that it was the duty of the Republic of Panama to maintain its own peace and good order, and that he could not assume that it would not do SO. He did not mean at all to circumscribe the powers of action of the United States in case an insurrection in the Republic of Panama anywhere threatened danger to the interests of the United States in building the canal, or to its property in the Canal Zone. The question whether such interference ought to take place he characterizes as a military question, and one to be determined by the knowledge of conditions on the Isthmus and the practical effect that the insurrection would have on the building of the canal. I have no