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who believed it to be opportune; but since then I had the honor to state to you that it was for Colombia a capital point, since, taken in connection with the provisions of Articles IV and XVII, its effect was to enunciate and affirm the rights of sovereignty of the Republic and questions of the guarantee and freedom of transit in conformity with the thirty-fifth article of the existing treaty of 1846-1848, which is textually incorporated in the convention about to be concluded. Whatever be the importance of this explanation, it suffices to show that, even although the cordial relations between Colombia and the United States at different times and for different motives have not been interrupted or embarrassed for more than 50 years of the existence of the treaty, doubts and controversies have arisen which, although they have terminated by being settled or forgotten, it would still be very desirable that they should not arise in the future when we aspire to draw still closer the existing relations between the two Republics upon the footing of perfect equality to which international law and their own traditions entitle them.

In a memorandum attached to this note I answer your excellency's memorandum to which I have referred at the beginning of this note, and I set forth the reasons upon which my Government rests for adhering to its original position in the substantial parts of the memorandum of the 18th of April of this year as the bases of the treaty.

I have, moreover, transmitted by cable to my Government a summary of your communication and memorandum, in order that it may definitely decide upon what it deems to be most appropriate.

I beg your excellency to accept the assurances of my highest and most distinguished consideration.

JOSÉ VICENTE CONCHA.

[Memorandum in reply to the memorandum of the 18th of November of his excellency the Secretary of State of the United States.]

A.

(a) The condition that there be returned to Colombia all the public lands granted to the railway and canal companies which may not be within the zone of the concession made to the United States, is in accordance with the original intent and text of the memorandum of the 18th of April. The undersigned is not unaware that those properties may have a considerable value, but it must be kept in view, on the one hand, that the Government of Colombia has not interfered and will not interfere in any form whatever in the stipulation of the price which the United States are to pay to the aforesaid companies for the concession of their rights; and, on the other hand, that all those properties of which those companies now have the usufruct are to be restored to the Republic at the expiration of their respective concessions. (Seventh condition of Article I of the contract for the construction of the canal of May 18, 1878; Article XVII of the contract for the railway of the 17th of April, 1850; and Article XXIII of the additional contract of July 5, 1867, concerning the same railway.) The time during which the companies are to have the usufruct of those properties being thus limited, it is clear that if they have any considerable value that value belongs to

Colombia, and there is no reason or motive for paying it over to the companies or for their owner to cede it gratuitously. Colombia has already exercised an act of exceptional liberty in extending, in favor of the canal company, the time limit for the construction of the work which has had the sole effect of allowing to the company the possibility of recovering a part of its capital which, without this extension of time, would have passed in several months to Colombia.

The undersigned does not insist or intimate that the United States shall intervene in the questions which have to be discussed between the Government of Colombia and the aforesaid companies, but he does indicate that there are such questions in order that the equity which moves the request of Colombia may be palpably seen. that, if there be still wanting any proof of the liberality of Colombia in her grants of land, it would be sufficiently shown by the enlargement of the zone of the canal from 200 meters conceded to the company to 5,000 meters which is offered to the United States.

So

(b) The preceding reasons serve, in part, likewise to show the necessity which exists that the Government of Colombia should make a special contract with the companies which are about to cede their rights; but it should be said in addition that the sole fact of a treaty between Colombia and the United States can not have the judicial effect of determining or cancelling the bonds of right which exist between the Republic of Colombia and those companies-bonds springing from perfect contracts which can not be dissolved according to the principles of universal jurisprudence, because one of the parties may conclude a compact in regard to the same matter with a third party, which in this case would be the United States. So that, as the United States are under the necessity of making a contract for acquiring the rights of the said companies, and as such negotiation could not be included in the treaty which is to be concluded between the two countries, so also the dissolution of the obligations between Colombia and the two companies could not be effected by the treaty. Otherwise the result would be that Colombia would be stripping herself of all her rights in relation to these corporations or depriving herself of the means of making those rights effective, and would still leave in existence her obligations toward them. The mere fact of the payment of the privileged shares which Colombia possesses in the canal company would not be a guarantee for the relinquishment of a special contract, the more so as in the modification proposed by the Department of State to Article I of the April memorandum it is expressly said that the United States contracts no obligation in this regard ("no obligation under this provision is imposed upon or assumed by the United States ").

If the United States have to construct aqueducts in Panama and Colon, these being cities the increase of whose population and trade would be due exclusively to the canal, it is the United States who will derive great benefit from that fact by obtaining sanitary conditions favorable for their employees and operatives, who will sojourn there in great number. Even supposing that this stipulation did not exist in the treaty-and it is not essential-the United States would find themselves under the necessity of constructing these works.

However sincere and strong may be, therefore, the desire of the Government of Colombia to smooth away the difficulties of the negotiation, it could not, without causing irreparable injury to the interest

of the Colombian people, withdraw the conditions which have been set forth with respect to Article I.

B.

Seeing that the United States accept the suppression of the term "in perpetuity" in Articles II and III of the project of a treaty, it is not necessary to discuss this point, and it is merely proper to remark that in the constitution of Colombia "territory" is not synonymous with "national property" (bienes nacionales), as is shown by Article IV of that constitution; but the alienation of a part of the territory would require a change in the boundaries of the nation, and as such boundaries are fixed in Article III of the same fundamental charter, a change thereof would require the amendment of the constitution itself.

C.

Article III of the original memorandum was not objected to by the Government of the United States when it was presented, nor was it said, as it is now said, that it would "embarrass or limit the action of the United States in the construction of a canal," a point which certainly would not have escaped the notice of the Department of State at that time. No amendment has been formulated in this regard, as was said in the memorandum to which reply is made, and it is only asked that an article of the original project may be conserved intact. Consequently Colombia is not disposed to make any change in Article III of the memorandum of the 18th of April.

The same is said with respect to Article VII, since the same reasons exist therefor.

D.

Although the part relative to lighthouses is stricken out, it should be stated that, when the memorandum of the 18th of April was published, a certain lighthouse concessionary in the department of Panama presented to the Government of Colombia a memorial (hereto annexed in copy) in reservation of his rights. Although there is an article of the treaty in which indemnification is tacitly comprised it has been sought to make the matter clear, and in that respect also no new matter is introduced. It is proper to note that by suppressing lighthouse dues in Panama, Colombia loses a relatively important revenue for its treasury and that it would not have been equitable if, in renouncing these resources for the future, it would also have to be burdened with the payment of the rights of the concessionaries.

E.

The memorandum to which reply is now made, in speaking of matters concerned with Article XXV of the treaty project, states that the offer of payment on the part of the United States of a total sum of $7,000.000 has no connection with the matter of an annual payment during the first 14 years.'

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The textual and clear terms of Article XXV of the memorandum of the 18th of April are sufficient to answer this remark. It is there

clearly stated, after much insistence, in order that it may appear that the seven millions which Colombia is to receive were an advance payment, an advance for the 14 first years of the use of the zone, and of the other concessions which the United States were to receive from the Government of Colombia. Before the termination of these 14 years an accord was to be reached conformably to the cited article, concerning the rate of the further annual payments, and to that end were mentioned the data upon which the estimates should rest beginning with the amount of the annual payment as calculated for the first period. But if, as to this, doubt should still exist it should be now stated with due precision that at the time the former minister of Colombia in Washington began the discussion of the preliminaries of the treaty with the members of the Isthmian Commission. it was stated clearly, expressly, and insistently that Colombia would ask an annual payment for the right to use the zone of the canal, as the proprietor thereof, and also the equitable price of the other concessions. In this regard, as in respect to the rest of the treaty draft, the conduct of Colombia has been absolutely frank from the beginning, and any other proceeding would have been destitute of reasonable motive.

The Government of the United States has thought it proper to modify the text of Article XXV of the memorandum which it accepted in its two notes of the 18th of April and 18th of July, and has proposed to Colombia an alternative between the payment of ten millions in cash and $10.000 of annual rental, or an initial payment of $7,000,000 and an annual discountable revenue of $100,000. The undersigned minister has no written authority of his Government to accept either of the two aforesaid alternative terms.

If the indemnification which is to be given to Colombia for its vast concessions has to be reduced to either of the two terms of the alternative proposed by the United States, the result would be that Colombia, having first ceded the usufruct and afterwards the full ownership of the Panama Railway; having ceded to the United States a zone for the canal 25 times greater than that which the concessionary company now enjoys; having renounced the expectation that the constructed canal shall become in 99 years the property of the Republic; having abstained from asking 8 per cent of the revenues of the enterprise as stipulated in the contract with the company; having obligated herself to suppress in a considerable extent of territory all imposts and contributions which might help to meet the increasing expenses of the public service; having given the free use of all the navigable waters and many public lands of Panama— would in exchange receive only in the first period of 100 years a sum which, distributed among all those years, would not amount in any one year to the half even of the sum which the Republic and the Department of Panama to-day receive from the rental of the Panama Railway alone.

The United States have given on distinct occasions before the world, and in fact to other Governments, examples of high and noble equity. So that, giving a little consideration to the real proportions of the indemnity which is offered to Colombia. it can not fail to be seen that this offer is very wide of what such equity would require.

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F.

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With respect to Article XXVI of the original memorandum, the undersigned has no authority to eliminate it from the text of the G.

No formal proposal has been made concerning the terms of an article in which shall be established the manner of settling the doubts. or difficulties which may arise in the application of the treaty in case it be perfected, but, this being the last provision of the compact, its examination may be postponed.

Washington, D. C., November 22, 1902.

JOSÉ VICENTE CONCHA.

BOGOTA, August 27, 1902.

His Excellency the MINISTER OF FOREIGN RELATIONS,

Present:

I, Dionisio Jiménez, a Colombian citizen, a resident of the city of Cartegena and transiently in this capital, make to your excellency, with all due respect, the following statement:

1. That I am the holder of the privilege for the establishment and exploitation of the lighthouse on Isla Grande, situated on the Atlantic coast of the Department of Panama, 32 miles from the port of Colon, which lighthouse has been in use for more than seven years, during which time it has worked with absolute regularity.

2. That the aforesaid lighthouse now yields to the national treasury an income of not less than $6,000 per annum, by reason of the share of the said treasury in that enterprise, which will become the exclusive property of the Government when the privilege expires.

3. That the privilege, which I acquired by purchase (made with the approval of the Government) from Don Aureliano Gonzalez Toledo, the original holder of the concession, gives me the right to collect from all vessels that pass by said lighthouse, whencesoever they may come and whithersoever they may be going, remuneration for the service that they receive from said lighthouse, without any exception save the war vessels of nations that are friendly to Colombia.

4. That in article 7 of the draft of a treaty with the Government of the United States of America for the construction of the Panama Canal. which draft was prepared by Don Carlos Martínez Silva when he was in charge of the legation of Colombia at Washington, there is offered to vessels about to pass through that canal, among many other and various concessions, exemption from the payment of light dues. This is done in so broad a manner that it might readily be believed that the exemption offered had reference to all lighthouses on the seacoast of the Republic, and not merely to that in the port of Colon, which is the only one to which that act of disinterestedness and generosity can refer.

5. That in the privilege granted to the Universal Panama Canal Co., which it is proposed to transfer to the American Government, the right was granted to that company

to establish and collect for passage through the canal and the ports belonging to it lighthouse, anchorage, transit dues, etc.

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