Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 8, 1908
File No. 5747/24–27.
Minister Squiers to the Secretary of State.
Panama, June 1, 1908.
Sir: I have the honor to inclose herewith original of foreign office note dated May 30 (with translation), also supplementary note of same date; also copy of letter from Richard Reid Rogers, general counsel of Isthmian Canal Commission, all with regard to the exercise of judicial power by the joint committee provided for by Article VI of the treaty between the United States and the Republic of Panama of November 18, 1903.
I have, etc.,
The Minister for Foreign Affairs to Minister Squiers.
Panama, May 30, 1908.
Mr. Minister: In the conference that took place in this city, presided over by His Excellency the President of the Republic, between his excellency the Secretary of War of the United States of America, the Hon. William H. Taft, and your excellency, on one side; myself, the minister in Washington, Mr. Jose Augustin Arango, and the legal adviser of the legation, Dr. William Nelson Cromwell, on the other, it was agreed that Inasmuch as it was neither presumable nor logical that the high contracting parties of the treaty of November 18, 1903, for the construction of the canal, would have the pains to provide for the organization of a court of the highest standing, its members being chosen from amongst select personnel by the Presidents of both countries, for it to have assessing power only, it was necessary to acknowledge as the most correct interpretation of Article VI of said treaty that the joint commission created thereby and the elective form of which is provided in Article XV of the same treaty, should have [Page 673] judicial powers, according to the proceedings which by common consent should be established by the two Governments or that may be temporarily adopted by the commission itself, to decide the controversies as to rights that may arise from those who have suffered damages, in whose benefit that special court (joint commission) was created according to Article VI, the Government of the United States, and also the amount of damages to which it refers.
In consequence it was specially agreed that to said commission should be submitted for decision the titles of possession or ownership on the Canal Zone that may be disputed by the United States represented by the Isthmian Canal Commission.
The matter of the assessment of the property of the Pacific Mail Steamship Co. of its lands in the island of Naos, which the United States has in view, was considered settled by the unanimous decision of the last joint commission, composed of Messrs. Lewis, Arosemena, Ambler, and Blair.
It was further agreed that the sentence issued by the commission in connection with the damages caused by the Malambo fire should be considered by the Secretary of War of the United States, the Hon. William H, Taft, and therefore that item is excluded from the matters to be dealt with by the next or future joint commission.
It appears convenient to make the point clear that the joint commission has no authority to consider or decide in any manner whatsoever the dispute of individuals between themselves respecting rights to claims. These controversies pertain to the ordinary courts of law that have the power to hear such cases and not to the joint commission established by the treaty.
The interpretation given to Article VI requires the express acknowledgement of the Department of State of the United States, and I respectfully request you to ask for it.
Please accept, etc.,
Mr. Richard Reid Rogers to Minister Squiers.
Ancon, Panama, May 28, 1908.
Dear Mr. Squiers: In looking over the note of Secretary Arias to yourself, I find it substantially in accord with the understanding except that with respect to the exercises of judicial powers by the commission it lacks definiteness. I would therefore suggest that in replying to this note you express the following ideas:
That the full judicial powers referred to in the first and second papagraphs of the Secretary of State’s note to you be exercised for the purpose of determining the following questions:
- 1.
- Whether the lands in question are covered by any grant from the Crown of Spain to private individuals.
- 2.
- Whether the lands in question are covered by any grant to public or municipal divisions of the State as ejidos or comunes.
- 3.
- Whether, in the absence of proof that title has been alienated out of the State or any public division thereof by grant cession, a possessory title valid against the State or public can have been acquired thereto by prescription.
- 4.
- In the absence of a valid title to the said lands by the occupants thereof, what character of improvements, if any, the occupants thereof in good faith are entitled to be compensated for.
- 5.
- The damages suffered by the owners or occupants, upon the assumption, first, that they have valid titles against the United States; second, upon the assumption that they have no valid legal titles but are entitled to compensation for improvements.
You will observe that I have here copied the memorandum previously handed to me by Mr. Arias and which he in turn has not incorporated in his note to you. I regard it, however, as quite important that the questions to be submitted to this commission should be defined, and if the questions to be submitted to the commission can be formulated now unquestionably a great deal of time and confusion will be saved when the tribunal actually begins to sit.
[Page 674]In view of the fact that this tribunal will convene here upon the 7th proximo, I doubt whether you will have an opportunity to secure an express acquiscence in this arrangement by the Secretary of State before the hearings begin. I apprehend, however, that if we can agree on the question to be submitted, no difficulty will ensue from this source.
I remain, very respectfully,
General Counsel.