The Government of the United States will communicate a copy of the different treaties immediately upon the final settlement of their terms, and hopes that the accomplishment of this very important step toward executing the purposes which the United States and Great Britain have shared for so many years, and an expression of which is embodied in the Hay-Pauncefote treaty, will be received by Great Britain with special satisfaction. DEPARTMENT OF STATE, Washington, January 8, 1909. Mr. Bryce to Mr. Root. BRITISH EMBASSY, Washington, January 8, 1909. DEAR MR. SECRETARY OF STATE: I have to acknowledge the receipt. of, and to thank you for, your letter of this day's date inclosing a memorandum relating to the treaty contemplated with the Republic of Colombia, and have communicated the substance of it by cable to my Government. I note that the privilege proposed to be given to the Republic of Colombia of passing vessels through the Panama Canal without payment, to which the memorandum refers, is therein stated to apply to vessels of war only. I am, dear Mr. Secretary of State, Mr. Root to Mr. Reid. [Telegram.] JAMES BRYCE. DEPARTMENT OF STATE, Washington, January 9, 1909. Following memorandum was sent yesterday to Ambassador Bryce:1 The proposed treaty with Colombia referred to is not yet signed, but when signed copy will be forwarded you. Meantime, as soon as practicable, explain situation to Sir Edward Grey as described in the memorandum. Tell him we are making very considerable sacrifices, including payment of a million and a quarter dollars, to clear the title and secure peaceable possession of canal site. Discreetly give him to understand that we should be both surprised and put out if there were any objection from Great Britain under Hay-Pauncefote treaty, the purpose of which we are making sacrifices to accomplish. Mr. Reid to Mr. Root. [Telegram.] AMERICAN EMBASSY, London, January 11, 1909. (Received 11.15 p. m.) No. 350. Confidential. January 11-11 p. m.] Saw Sir Charles Hardinge, in the absence of Sir Edward Grey, with reference to Panama arrangement summarized in your memorandum to Mr. Bryce, as stated in your cipher telegram to me of January 10. He was familiar with memorandum, and moment I mentioned it said: "We shall have to enter a protest." I hastened to present to him the considerations you mentioned, sacrifices made, and surprise and disappointment felt that objections should now be made under Hay-Pauncefote treaty. I ventured to urge also that the very thing they now protested against, the free passage of Colombian war vessels, had been agreed to in the Hay-Herran treaty, with the full knowledge and assent, as we understood, of the British Embassy at the time. He did not deny this, but said the circumstances were entirely changed, and that this consideration was given solely because the canal was then to pass through Colombian territory. I pointed out that nevertheless this had been the foundation agreement under which we were enabled to build the canal, and that the consideration now given was the same. He said, "Yes; but the country that gets it is not now the country through which the canal runs," and insisted that for the sake of the precedent they should be compelled to enter their protest. In that case, I urged that it should be worded so as to cause as little embarrassment as possible. He assured me that we need have no apprehensions on that score, but insisted tenaciously that, with a view to the future, it was their duty to protest against any inequality in the treatment accorded foreign nations in the use of the canal, and that Colombia was now as much a foreign nation as any other. REID. Mr. Reid to Mr. Root. [Telegram.] No. 352. Confidential. January 15-7 p. m.] * * AMERICAN EMBASSY, London, January 15, 1909. (Received 7.08 p. m.) * Learned at the same time that protest in Colombian matter is not likely to be of a nature to create much embarrassment. REID. Mr. Root to the British Ambassador. DEPARTMENT OF STATE, Washington, January 16, 1909. DEAR MR. AMBASSADOR: I think on reflection that I better follow your suggestion and put in writing the gist of the ideas which I conveyed to you orally in our interview last Thursday regarding the proposed concession to Colombia of the right to pass her war vessels through the Panama Canal, when completed, without the payment of any dues to the United States. The view of the United States upon this is, in substance, as follows: The Hay-Pauncefote treaty of November 18, 1901, provided for the building of a canal in territory which was not under the jurisdiction of either of the contracting parties. The title to the land through which the canal was to be built, the authority to construct and operate, and jurisdiction and control over the canal when finished, manifestly remained to be secured before the purposes of the treaty could be effected. The treaty said nothing about the way in which this should be accomplished. It follows by necessary implication that the agreements and arrangements to be made with the power or powers having right to grant or withhold the opportunity to construct and operate the canal must be quite different from the mere application of a scale of tolls to the nations of the world in general which had nothing whatever to do with the creation of the canal. Such agreements are ex necessitate outside of the rule of equality to all the world which was embodied in the Suez rules. This view was recognized in the Hay-Herrán treaty of January 22, 1903, in which the United States of Colombia, while undertaking to grant the right to the construction of the canal, reserved the right "to pass their vessels, troops, and munitions of war at all times without paying any dues whatever." This treaty was confirmed by the Senate of the United States, but failed of confirmation by the Congress of Colombia. Then followed the revolution inaugurated on the 3d of November, 1903, and the recognition of the independence of Panama by both the United States and Great Britain and thereafter the grant by the Republic of Panama to the United States of various rights connected with the canal, including, as well as the direct grant, a consent by Panama to the purchase by the United States of the property and concessions of the New Panama Canal Co., which had been for a long time engaged in canal construction across the Isthmus and which had rights, the acquisition or removal of which was necessary to vest in the United States the right to construct the canal in accordance with the terms of the Hay-Pauncefote treaty. Notwithstanding the grant by Panama in her treaty with the United States, there remained three subjects for serious consideration by the United States as affecting the peaceable and unquestioned title to the property and rights, the acquisition of which was necessary to the execution of the canal project. One of these was that there still remained in force a treaty made in 1846 between the United States and Colombia, which was in existence at the time the Hay-Pauncefote treaty was made and under which the United States remained under special obligation to Colombia in respect of the very status of the canal. The second was that the only way to dispose of the prior and conclusive rights of the French Panama Canal Co., which stood in the way of the construction of the canal by the United States pursuant to the Hay-Pauncefote treaty, was by purchasing those rights and becoming the successor of the Panama Canal Co. under the concessionary contracts. In those contracts there were stipulations and reservations running to Colombia, including rights of forfeiture of property and including an express stipulation for the right to pass her war vessels through the canal without the payment of dues. The third was the fact that Colombia had continuously refused to recognize the independence of Panama and stood ready to retake possession of the Isthmus and resume her control over it the moment that she was not prevented by the superior military and naval force of the United States, so that the only possession which was possible under the grant of Panama alone was the possession to be continuously maintained by force. Under these circumstances the United States has deemed it to be its duty, in the performance of the obligations which it assumed in the Hay-Pauncefote treaty with Great Britain, to fortify its title and assure its peaceable possession of the canal for the purposes of the Hay-Pauncefote treaty by securing the assent of Colombia to the separation of Panama, the renunciation of Colombia's claims, and the consent of Colombia to the necessary modification of the treaty engagements of 1846 between the United States and Colombia. In order to accomplish this the United States has found it necessary to renew the reservation of the specific right of Colombia to send its warships through the canal without the payment of dues, which has been insisted upon by that country in every concession and treaty she has made regarding it (for example, the Panama Canal concession of 1878, Article VI; the Hay-Concha accepted proposal for a treaty between the United States and Colombia of April 18, 1902, sent by Mr. Hay to the American Congress and printed as a public document; and the Hay-Herrán treaty of January 22, 1903, Articles XVI, XVII, and XVIII, and also to make the very substantial payment of a million and a quarter dollars, which the United States proposes to contribute toward the payment of Panama for the purpose of securing these rights. The United States has considered not only that in prescribing the rule of equality in the Hay-Pauncefote treaty the parties must have contemplated the making of special arrangement by the United States with Colombia as the necessary source of title, but that the right to make such an exceptional arrangement still continues, in view of Colombia's continued special relation to the title: and this view is supported by the provision of the fourth article of the HayPauncefote treaty, which declares that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the high contracting parties under the present treaty. Of course, in agreeing to accord to Colombia this reservation the United States is not dealing with the general subject of canal tolls. It is treating Colombia, for the reasons which I have described, as being in a wholly exceptional position, not subject to the rule of equality of the Hay-Pauncefote treaty and not to come within any schedule of tolls which may hereafter be established, which must, of course, under the treaty, be equal for all nations to whom the rule of equality is properly applicable. The United States is especially desirous that its course shall be understood by Great Britain and that there shall be no thought on the part of that Government that the Government of the United States is unmindful of its obligations under the Hay-Pauncefote treaty or is willing, in any degree whatever, to fail in strict compliance with those obligations, and for this reason I am making this explanation in the hope that the Government of Great Britain will agree with us regarding the situation of Colombia as to the title to the canal to be so exceptional as not to come within the rule of equality of the Hay-Pauncefote treaty and will agree that the contemplated provision will constitute no precedent for the exception of any other nations from the payment of equal dues for the passage of war vessels in accordance with such schedules as shall be established in accordance with the Hay-Pauncefote treaty. Faithfully, yours, ELIHU ROOT. Mr. Root to Mr. Reid. [Telegram.] DEPARTMENT OF STATE, Washington, January 16, 1909. Confidential and for your own information and guidance only. The following letter sent to Ambassador Bryce to-day: * * * * * I presume Bryce will mail it. Meantime you are at liberty to use it as you think best in your discretion to forestall premature action by British Government. Your cable January 15, No. 352, saying that protest in Colombia matter is not likely to be of nature to be of much embarrassment, is reassuring, but it is important to avoid anything called a protest. We feel that the case does not warrant any protest, and that Great Britain instead of embarrassing ought to aid and encourage the consummation of an arrangement so useful for accomplishment of the purpose of Hay-Pauncefote treaty and so exceptional in character. Great Britain ought to consider that the good faith of the judgment of the United States as to the importance and necessity of this arrangement in aid of the enterprise is proved by our being willing not only to forego all dues from Colombia, but to pay a million and a quarter of dollars for the purpose of securing the arrangement. The position of the United States toward Great Britain in this matter is analogous to that of trustee securing advantage for the trust by means of personal sacrifices on his own part, and any objection by Great Britain would be like a beneficiary of a trust taking the benefit of the arrangement made by his trustee and at the same time making a very technical objection to his action. We are confident that the 1 Printed ante. |