PREPARED STATEMENT BY HON. GENE SNYDER OF KENTUCKY

AN AMERICAN CANAL ON AMERICAN SOIL UNDER AMERICAN CONTROL FOR THE GOOD OF THE ENTIRE WORLD!-DOCUMENTATION REGARDING PERPETUAL UNITED STATES POSSESSION, OWNERSHIP AND CONTROL OF, TITLE TO, AND SOVEREIGNTY OVER THE CANAL ZONE AND THE PANAMA CANAL UNDER THE 1903 TREATY WITH THE REPUBLIC OF PANAMA AS REVISED AND UPDATED IN 1936 AND 1955

I. On March 8, 1880, President Rutherford B. Hayes sent a special message to Congress in which he declared:

"“. . . I deem it proper to state briefly my opinion as to the policy of the United States with respect to the construction of an interoceanic canal by any route across the American isthmus.

"The policy of this country is a canal under American control. If existing treaties between the United States and other nations, or if the rights of soversuitable eignty or property of other nations stand in the way of this policy steps should be taken by just and liberal negotiations to promote and establish the American policy...

An interoceanic canal across the American isthmus . . . will be the great ocean thoroughfare between our Atlantic and our Pacific shores, and virtually a part of the coast line of the United States. Our merely commercial interest in it is greater than that of all other countries, while its relation to our means of defense, our unity, peace, and safety, are matters of paramount concern to the people of the United States. No other great power would under similar circumstances fail to assert a rightful control over a work so closely and vitally affecting its interest and welfare.

"Without urging further the grounds of my opinion, I repeat-that it is the right and the duty of the United States to assert and maintain such supervision and authority over any interoceanic canal as will protect our national interests."

II. On March 3, 1899, President William F. McKinley approved a rivers and harbors act of Congress titled, “An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes." Section 3 of that Act, in part, reads as follows:

"That the President of the United States of America be, and he is hereby, authorized and empowered to make full and complete investigation of the Isthmus of Panama with a view to the construction of a canal by the United States across the same to connect the Atlantic and Pacific oceans; . . . And generally the President is authorized to make such full and complete investigation as to determine the most feasible and practicable route across said isthmus for a canal, together with the cost of constructing the same and placing the same under the control, management, and ownership of the United States."

III. On January 18, 1902, the Isthmian Canal Commission appointed by President McKinley under the rivers and harbors act of 1899, reported to the President of the United States. In its report, the Commission headed by Rear Admiral John G. Walker, one of the ablest naval officers of his generation, declared:

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a new arrangement must be made if an isthmian canal is to be constructed by our Government across the Isthmus of Panama.

"The grant must be not for a term of years, but in perpetuity, and a strip of territory from ocean to ocean of sufficient width must be placed under the control of the United States. In this strip the United States must have the right to enforce police regulations, preserve order, protect property rights, and exercise such other powers as are appropriate and necessary."

IV. The Spooner Act of 1902 mandated the President as follows:

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the President is hereby authorized to acquire... perpetual control of a strip of land, the territory of the Republic of Colombia . . . and the right to use and dispose of the waters thereon, and to excavate, construct, and to perpetually maintain, operate, and protect thereon a canal. . . the sum of ten million dollars is hereby appropriated out of any money in the Treasury not otherwise appropriated, toward the project herein contemplated..."

V. The Isthmian Canal Convention of 1903 (Hay-Bunau Varilla Treaty) states the following:

Article II: "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..."

Article III: "The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority."

VI. Article 3 of the 1904 Constitution of the Republic of Panama states:

"The territory of the Republic remains subject to the jurisdictional limitations stipulated, or which may be stipulated in public treaties concluded with the United States of North America for the construction, maintenance, or sanitation of any means of interoceanic transit."

VII. The 1904 U.S.-Panama Boundary Agreement states:

"Whereas by the terms and provisions of Article II of the Convention for the Construction of an Interoceanic Canal between the United States of America and the Republic of Panama, signed by the representatives of the two nations on November 18, 1903, the ratifications of which were exchanged, at Washington on the 26th day of February, 1904, the United States acquired the right of use, occupation, and perpetual control from and after the said 26th day of February, 1904, in and over the Canal Zone and other lands, waters, and islands named in said Article II of the convention aforesaid; and . . .”

"Whereas in order that said work of construction of said interoceanic canal may be systematically prosecuted, and in order that a government for the Canal Zone created by the terms and provisions of said Article II of said convention may be successfully organized and carried forward, it is necessary that the extent and boundaries of the said territory ceded to the Government of the United States by the Government of the Republic of Panama under the terms and provisions of said convention shall be provisionally determined and agreed upon. . ."

VIII. In the 1907 decision, Wilson v. Shaw, Secretary of the Treasury, the Supreme Court cited the plaintiff's contentions. Among them:

"He contends that whatever title the Government has was not acquired as provided in the act of June 28, 1902, by treaty with the Republic of Colombia . . Further, it is said that the boundaries of the zone are not described in the treaty..."

The Court declared:

"A short but sufficient answer to that subsequent ratification is equivalent to original authority. The title to what may be called the Isthmian or Canal Zone, which at the date of the act was in the Republic of Colombia, passed by an act of secession to the newly formed Republic of Panama. .. A treaty with it, ceding the Canal Zone, was duly ratified. 33 Stat. 2234. Congress has passed several acts based upon the title of the United States.

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

"Alaska was ceded to us forty years ago, but the boundary between it and the English possessions east was not settled until within the last two or three years. Yet no one ever doubted the title of this republic to Alaska."

I call to your attention that the Court used the words "cede" and "title" in reference to both Alaska and the Canal Zone-and used the same words in the same decision.

IX. The Panama Canal Act of August 24, 1912, specified in Section 3:

"That the President is authorized to declare by Executive order that all land and land under water within the limits of the Canal Zone is necessary for the construction, maintenance, operation, sanitation, or protection of the Panama Canal, and to extinguish, by agreement when advisable, all claims and titles of adverse claimants and occupants. Upon failure to secure by agreement title to any such parcel of land or land under water the adverse claim or occupancy shall be disposed of and title thereto secured in the United States and compensation therefor fixed and paid in the manner provided in the aforesaid treaty with the

Republic of Panama, or such modifications of such treaty as may hereafter be made."

X. By Executive Order on December 5, 1912, President William H. Taft, in accordance with the Panama Canal Act of 1912, took possession of all land in the Zone. That order reads:

"Lands in Canal Zone to be Taken for Canal Purposes: By virtue of the authority vested in me by the Act of Congress entitled 'An Act to provide for the opening, maintenance, protection, and operation of the Panama Canal, and the sanitation and government of the Canal Zone,' approved August 24, 1912, I hereby declare that all land and land under water within the limits of the Canal Zone are necessary for the construction, maintenance, operation, protection, and sanitation of the Panama Canal, and the Chairman of the Isthmian Canal Commission is hereby directed to take possession, on behalf of the United States, of all such land and land under water; and he may extinguish, by agreement when practicable, all claims and titles of adverse claimants to the occupancy of said land and land under water."

XI. The 1914 U.S.-Panama Boundary Convention states:

"Whereas, Gen. George W. Davis, then Governor of the Canal Zone, on behalf of the United States of America, and Messrs. Thomas Arias and Ramon Valdes Lopez, then Secretary of Foreign Affairs and Attorney General, respectively, of the Republic of Panama, acting on behalf of that Republic, entered into an agreement on the 15th day of June, 1904, by the terms of which the Republic of Panama delivered over to the United States of America, the use, occupation, and control in perpetuity of the zone of land ten miles in width described and mentioned in articles II and III of the Canal Treaty...

"It is agreed that the Republic of Panama shall have an easement over and through the waters of the Canal Zone in and about Limon and Manzanillo bays to the end that vessels trading with the City of Colon may have access to and exit from the harbor of Colon, subject to the police laws and quarantine and sanitary rules and regulations of the United States and of the Canal Zone established for said waters. . . ."

XII. The 1914 Treaty between the U.S. and the Republic of Colombia declares in Article I:

"The Republic of Colombia shall enjoy the following rights in respect to the interoceanic Canal and the Panama Railway, the title to which is now vested entirely and absolutely in the United States of America, without any incumbrances or indemnities whatever."

XIII. The 1936 Treaty of Friendship and Cooperation between the U.S. and Panama contains the following Article XI:

"The provisions of this Treaty shall not affect the rights and obligations of either of the two High Contracting Parties under the treaties now in force between the two countries, nor be considered as a limitation, definition, restriction or restrictive interpretation of such rights and obligations, but without prejudice to the full force and effect of any provisions of this Treaty which constitute addition to, modification or abrogation of, or substitution for the provisions of previous treaties."

I call to your attention that in commenting on this Article in his Summary of Essential Features of this agreement, printed in the Report of the Senate Foreign Relations Committee on the Treaty, Secretary of State Cordell Hull declared: "The juridical status of the Canal Zone, as defined in article III of the 1903 convention, thereby remains unaltered."

XIV. The 1955 Treaty of Mutual Understanding and Cooperation between the U.S. and Panama was the subject of Senate hearings. Assistant Secretary of State for Inter-American Affairs, Henry F. Holland was questioned as follows:

"Senator FULBRIGHT. Would you say that there is anything in this agreement which might possibly be construed as a waiver of our paramount rights in the Canal Zone?

"Mr. HOLLAND. No, sir; and, as a matter of fact, I believe that the permanency and stability of those rights are strengthened by this treaty because of the inclusion in the treaty of the phrases that I referred to in my opening statement. That is the inclusion of the phraseology in the preamble that no part of the treaty of 1903 or the treaty of 1936 or this treaty can be changed save by mutual agreement of the parties, and the specific and affirmative recognition in article I by the parties of the absence of any obligation on the part of either party to change the annuity ..."

"Senator WILEY. As I understood from you, Secretary Holland, there is nothing in this present treaty that would in the slightest degree depreciate all the attributes of sovereignty that we possess.

"Mr. HOLLAND. That is true; and so true is it, that in the course of the negotiations the Panamanians advanced several small requests which, 1 by 1, had considerable appeal, but all of which we refused, because we did not want to leave 1 grain of evidence that could a hundred years hence be interpreted as implying any admission by the United States that we possess and exercise anything less than 100 percent of the rights of sovereignty in this area."

XV. In Roach v. United States, 453 F. 2d 1054 (5th C.A.) cert. den'd. 406 U.S. 935, decided on Dec. 30, 1971, the Court of Appeals declared:

"The Canal Zone is an unincorporated territory of the United States. Convention between United States and Republic of Panama, Nov. 18, 1903, 33 Stat. 2234, arts. 2, 3; General Treaty between United States and Panama, Mar. 2, 1936, 53 Stat. 1807; 2 C.Z.C. § 1 et seq."

XVI. Section 701, Title 2 of the Canal Zone Code (last revised in 1963) reads: "The Government of the United States possesses, to the exclusion of all foreign nations, sovereign rights, power, and authority over the air space above the lands and waters of the Canal Zone. Until Congress otherwise provides, the President shall prescribe, and from time to time may amend, regulations governing aircraft, air navigation, air-navigation facilities, and aeronautical activities within the Canal Zone, 76A Stat. 29."

International law recognizes that a nation has absolute sovereignty over the superjacent air space above the land and water constituting its sovereign territory.

THE ANNUITY

The Hay-Herran Treaty of 1903 between the U.S. and the Republic of Colombia, never ratified by the latter, states in Article XXV:

"As the price or compensation for the right to use the zone granted in this convention by Colombia to the United States for the construction of a canal, together with the proprietary right over the Panama Railroad, and for the annuity of two hundred and fifty thousand dollars gold, which Colombia ceases to receive from the said railroad, as well as in compensation for other rights, privileges and exemptions granted to the United States, and in consideration of the increase in the administrative expenses of the Department of Panama consequent upon the construction of the said canal, the Government of the United States binds itself to pay Colombia the sum of ten million dollars in gold coin of the United States on the exchange of the ratification of this convention after its approval according to the laws of the respective countries, and also an annual payment during the life of this convention of two hundred and fifty thousand dollars in like gold coin, beginning nine years after the date aforesaid..."

The identical financial features of this Article were incorporated in Article XIV of the Hay-Bunau Varilla Treaty with Panama. Clearly, we could not offer less to Panama than already offered to Colombia.

The annuity therefore was to indemnify for loss of income from the Panama Railroad, and never was a lease payment.

"Subsequent increases in the annuity were made in the 1936 and 1955 Treaties. Both Treaties spell out that the increases were not required by any treaty provision.

The annuity was increased in the 1936 Treaty to $430,000. Senate Report 2375 dated June 27, 1956 from the Committee on Interstate and Foreign Commerce explained this:

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the monetary agreement with the Republic of Panama of June 20, 1904, provided for payment of the annuity in gold balboas. Hence, when the American gold dollar, and later the Panamanian balboa, were devaluated as the result of the gold standard by the United States in 1934, the annuity payment in gold balboas was increased to $430,000 solely to compensate for the decrease in gold content of the balboas."

The 1955 Treaty increased the annuity to $1,930,000 purely as an act of generosity on our part.

Subsequent devaluation of the dollar has raised the figure to $2,328,200 at the present time.

THE PANAMA CANAL-AN EARLY VIEW (1910)

(By the late Fred S. Ball, Sr. of Montgomery, Ala.)

Transportation is one of the large divisions of man's activity and enterprise. The cost of distribution is an important factor in commerce, calling for a discerning knowledge of geography and topography. The day of pack-horses and sailing vessels is past for time is counted in dollars. On land, men seek straight lines and easy grades, while millions are spent in piercing frowning mountains and bridging obstructing lakes. Parcels are shot through tubes, and airships hover on the horizon.

But nature made the thoroughfares of cheapest travel. Eternal rivers of a thousand miles, unchanging lakes of broad expanse and seas that cover half the globe invite the commerce of the world. On these, deep-laden vessels spread their canvas wings and carry cargoes to the ends of earth. Palatial steamers, like wild horses, dash across the main, while myriad craft ply busily in bay and river.

But rivers are not straight, and, therefore, man is not content. The land throws out its mighty arms across the mariner's path, who chafes at the obstruction. Where continents are joined together, men would leap over or cut through. So it has come to pass that men have added artificial water ways to nature's rich supply. Even in the early days, they ventured on such enterprises. Tradition tells us of a Suez Canal twenty centuries before Christ, and history says it existed from 600 B.C. for 1400 years. Nebuchadnezzar opened the Royal Canal between Tigris and Euphrates, and Mesopotamia, China and Egypt were scenes of early industry in this direction. In the 13th century China had her Grand Canal of 1000 miles.

In the 17th century France connected the Bay of Biscay and the Mediterranean by a canal 148 miles long with a 600 foot summit. In the 18th century St. Petersburg and the Caspian Sea were connected by canals and canalized rivers 1434 miles long. Great Britain utilizes several thousand miles, while other European nations have not been slow to see their advantages.

In America there are 4000 miles of canals. Through the "Soo" connecting lakes Superior and Huron, the passing tonnage is there three times as great as that of Suez. The Welland carries traffic around Niagara Falls, making Duluth a seaport town. The Erie has been a valuable factor in the development of New York State. Over $60,000,000 have been spent on this water way between Lake Erie and the Hudson, and recently the people of that State have voted to spend $101,000,000 to make it navigable for vessels of 1200 tons. The Illinois & Michigan connects the waters of the Mississippi and Lake Michigan. At present small in importance, in the commercial history of the Mississippi valley, it may have a brilliant future.

The world's great canals, however, are the Suez, in praesenti, and the Panama, in futuro. It is said that “the opening of the Suez Canal to a great extent revolutionized the main lines of international traffic". It resulted in the restoration of the commercial prestige of the Mediterranean and the decay of the stations in the Southern seas. Only 88 miles long and costing about $100,000,000, it reduced the distance from Western Europe to the East about 4000 miles or nearly 40 days.

It seems the irony of fate that French capital and brains should build it, and English capital own and control it. Considered the most remarkable engineering feat of its day, its projection met with tremendous opposition. It is interesting, in the light of objections to Panama, to note that the chief contentions were: that Suez would become a stagnant ditch endangering the health of all who entered it; that it would soon blow full of sand from the deserts; that at one end navigation on the Red Sea was dangerous, while on the other a Mediterranean entrance could not be maintained. Yet, the canal was built and time-honored thoroughfares of the ocean were abandoned.

But Panama will be greater than Suez. As an engineering feat, it is man's boldest. Its importance may be measured by the words of Sir Walter Raleigh—