ARTICLE XXII.

The Republic of Panama renounces and grants to the United States the participation to which it might be entitled in the future earnings of the Canal un er Article XV of the concessionary contract with Lucien N. B. Wyse low owned by the New Panama Canal Company and any and all other rights or claims of a pecuniary nature arising under or relating to said concession, or arising under or relating to the concessions to the Panama Railroad Company or any extension or modification thereof; and it likewise renounces, confirmns and grants to the United States, now and hereafter, all the rights and property reserved in the said concessions which otherwise would belong to Panama at or before the expiration of the terms of ninety-nine years of the conces sions granted to. or held by the above mentioned party and companies, and all right, tity and interest which it now has or may hereafter have, in and to the lands, canal, works, property and rights held by the said. companies under said concessions or otherwise, and acquired or to be acquired by the United States from or through the New Panama Canal Company, including any property and rights which might or may in the future either by lapse of time, forfeiture or otherwise, revert to the Republic of Panama under any contracts or concessions, with said Wyse, the Universal Panama Canal Company, the Panama Railroad Company and the New Panama Canal Company.

The aforesaid rights and property shall be and are free and released from any present or reversionary interest in or claims of Panama and the title of the United States thereto upon consummation of the contemplated purchase by the United States from the New Panama Canal Company, shall be absolute, so far as concerns the Republic of Panama, excepting always the rights of the Republic specifically secured under this treaty.

ARTICLE XXIII.

If it should become necessary at any time to employ armed forces for the safety or protection of the Canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times and in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes.

ARTICLE XXIV.

No change either in the Government or in the laws and treaties of the Republic of Panama shall, without the consent of the United States, affect any right of the United States under the present convention, or under any treaty stipulation between the two countries that now exists or may bereafter exist touching the subject matter of this convention.

If the Republic of Panama shall hereafter enter as a constituent into any other Government or into any union or confederation of states, so as to merge her sovereignty or independence in such Government, union or confederation, the rights of the United States under this convention shall not be in any respect lessened or impaired.

ARTICLE XXV.

For the better performance of the engagements of this convention and to the end of the efficient protection of the Canal and the preservation of its neutrality, the Government of the Republic of Panama will sell or lease to the United States lands adequate and necessary for naval or coaling stations on the Pacific coast and on the western Caribbean coast of the Republic at certain points to be agreed upon with the President of the United States.

ARTICLE XXVI.

This convention when signed by the Plenipotentiaries of the Contracting Parties shall be ratified by the respective Governments and the ratifications shall be exchanged at Washington at the earliest date possible.

In faith whereof the respective Plenipotentiaries have signed the present convention in duplicate and have hereunto affixed their respective seals.

Done at the City of Washington the 18th day of November in the year of our Lord nineteen hundred and three.

And whereas the said Convention has been duly ratified on both parts, and the ratifications of the two governments were exchanged in the City of Washington, on the twenty-sixth day of February, one thousand nine hundred and four;

Now, therefore, be it known that I, Theodore Roosevelt, President of the United States of America, have caused the said Convention to be made public, to the end that the same and every article and clause thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof.

In testimony whereof, I have hereunto set my hand and caused the seal of the United States of America to be affixed.

Done at the City of Washington, this twenty-sixth day of February, in the year of our Lord one thousand nine hundred and four, and of the Independence of the United States the one hundred and twenty-eighth.

[SEAL]

By the President:

JOHN HAY

Secretary of State.

THEODORE ROOSEVELT

Senator ALLEN. Senator Hatch?

Senator HATCH. I have nothing to add. I think you have covered the subject very well, Mr. Chairman. I have no statement at this time. I am going to be very interested in hearing the witnesses on all sides of this question, and I intend to keep a very open mind regarding all of the issues that will be raised in these important hearings.

Senator ALLEN. Thank you very much.

Mr. Leonard, will you come forward?

We welcome you to the subcommittee hearings and we are delighted to have you as our first witness. You may proceed in such manner as fit. you see

TESTIMONY OF GEORGE S. LEONARD, ATTORNEY,

WASHINGTON, D.C.

Mr. LEONARD. Thank you, Mr. Chairman, and Senators.

If the subcommittee so desires, I would like at this time to read a statement which has been circulated and then make myself available for whatever questions the committee might have.

Mr. Chairman and members of the subcommittee, my name is George S. Leonard. My offices are located at 1019 Nineteenth Street NW., in Washington, D.C.

I am an attorney before the bar of the Supreme Court and various other courts in the State of New York, the District of Columbia, and elsewhere. I am an attorney with considerable background and experience in constitutional matters and have been the attorney for certain Senators and Members of the House of Representatives who have been plaintiffs in actions brought to test whether under the doctrine of constitutional separation of powers the executive branch may dispose of a territory of the United States by the presentation of a treaty proposal to the Senate.

I am familiar with the current status of the proposals regarding the disposition of the Canal Zone. I appear here today to question as a matter of constitutional law whether the executive branch may enter into negotiations for a treaty which would divest the United States of its possession of the zone without any necessity for prior authorization from the whole Congress.

CONSTITUTIONAL AUTHORITY

Our question, therefore-and the one to which I have given consideration is: Does the executive branch have the constitutional authority to negotiate for a treaty which disposes of the Panama Canal Zone? I believe that the answer to that is flatly and unquestionably "no." I do not believe that there is any doubt whatsoever in the law or under the Constitution that such power does not abide in the executive branch of the United States.

Let me give you some background if I may. It is customarily said, and the State Department has always repeated-and I notice even from the remarks of the chairman at this meeting-that it is assumed that the Canal Zone originally started out and was acquired by treaty. That is not so.

94-468 O-77-2

What did happen was that Congress passed an act, which is known as the Spooner Act. It directed the executive to make an arrangement either with Panama, or-in default of Panama-with Nicaragua to acquire in perpetuity the properties across which a transoceanic canal would be built.

The "in perpetuity" requirement was a congressional requirement. It had nothing whatever to do with the executive department.

The treaty was more under that authority and by reference to that authority. Senator Scott has put into the record here the actual text of what is known as the Hay-Bunau-Varilla Treaty. It will be found that in the first paragraph, in the opening word of that, the reference is made to the fact that it is authorized by an act of Congress.

SPOONER ACT

Its terms are the terms which Congress required. Had Panama not agreed to it and I say Panama, because at the time of the Spooner Act there was not even a Panama-the United States would have built the canal in Nicaragua which was, as a matter of fact, within one or two votes in the Senate, the desired place to have put the interocean canal.

It was by virtue of Panama's willingness to accept the treaty in that form that the Spooner Act could be carried out and that the canal was, in fact, built in Panama instead of in Nicaragua.

Under the Spooner Act Congress authorized the President to acquire perpetual control of the necessary lands for the construction and defense of an interocean canal across the Isthmus of Panama. It stated that if the Executive were unable to purchase such control, then it was to approach Nicaragua for the same purpose.

Acting pursuant to the authorization which was thus granted by Congress a convention was negotiated and approved by the then President and Secretary of State between the United States and the newly formed Republic of Panama on November 18, 1903. This is the convention, treaty, or agreement, as you will call it, generally known as the Hay-Bunau-Varilla Convention, a copy of which is now in the record.

It is pursuant to that that the United States acquired in perpetuity the rights of the newly founded Republic of Panama to the territory which is now known as the Canal Zone.

Since that time the Canal Zone has remained a territory of the United States administered at the direction of the President of the United States in accordance with enabling legislation which has been enacted from time to time thereafter by the Congress.

I point out in this connection that all powers which the President has in terms of the administration and organization of the canal spring from congressional enactment and congressional authorization.

Such legislation by the Congress has directed both the form and the substance of the governance of the administration and jurisprudence of the Canal Zone. It has culminated in a comprehensive revision by the Congress in Public Law 87-845, which is known generally as the Canal Zone Code. It became effective on January 2, 1963. It not only includes provisions for all of the necessary courts, the establishment

of a judiciary, and an office of the U.S. attorney, a criminal code and a civil code, but it also has a congressional guarantee of civil rights under the laws of the United States.

I may say parenthetically in addition to my statement that the bill of rights in the Canal Zone Code has been held by the Fifth Circuit Court of Appeals to be the equivalent to the Bill of Rights in the U.S. Constitution. There are some 3,500 citizens of the United States who are residents in the zone who, if this treaty presently proposed is to be taken at face value, will be put under Panamanian law without any hearing and without any chance of defending themselves or arguing their own case.

Senator Scorr. Mr. Chairman, if I might interrupt, is that the case of United States v. Husband R. (Roach) which is 453 F.2d, 1054? Mr. LEONARD. That is correct.

Senator SCOTT. I just wanted that established for the record.

Mr. LEONARD. On considering the facts of the acquisition of the Canal Zone the courts have unanimously recognized that the Canal Zone has become a territory of the United States and that the title of the United States to the zone is complete.

I would like to repeat at this point the words of the Supreme Court of the United States in the case of Wilson v. Shaw, which can be found at 204 U.S. 24. It was rendered in 1907 shortly after the canal had been acquired.

The Supreme Court said:

"It is hypercritical to contend that the title of the United States is imperfect, and that the Canal Zone does not belong to this Nation, because of the technical terms used in ordinary conveyances of real estate."

There were two other cases. One was in the Canal Zone, which was Lucas v. Lucas, and another in the eastern district U.S. court in Huasteca Petroleum Company v. United States. They have affirmed that position. I do not believe that there has ever been a court at any time which has held that the Panama Canal Zone is other than a territory of the United States.

I know that there have been many statements made about sovereignty, but otherwise to the best of my knowledge there has never been any doubt on the question that the Panama Canal Zone, insofar as our courts have interpreted this acquisition, is in fact a territory of the United States. I believe that this is today conceded by the State Department.

In 1936 and 1955 additional agreements with Panama were made on little minor pieces of territory here and there. I believe that some of them were outside the zone itself. In each such case the perpetuity principle was reaffirmed. In each such case, both in 1936 and 1955, the treaties were made subject to the passage of appropriate legislation by the Congress. It did not require ratification of the treaty by the Senate, but congressional action.

JOINT STATEMENT

The whole position changed in 1974. Mr. Kissinger went to Panama as Secretary of State. He discussed the situation with Foreign Minister Tack of the Republic of Panama. Between them they issued a joint statement which was published by the State Department.