The guarantee of the sovereignty of New Granada over the isthmus [continued the President] is a natural consequence of the guarantee of its neutrality, and there does not seem to be any other practicable mode of securing the neutrality of this territory. New Granada would not consent to yield up this province in order that it might become a neutral state, and, if she should, it is not sufficiently populous or wealthy to establish and maintain an independent sovereignty. But a civil government must exist there in order to protect the works which shall be constructed. New Granada is a power which will not excite the jealousy of any nation. If Great Britain, France, or the United States held the sovereignty over the isthmus, other nations might apprehend that in case of war the government would close up the passage against the enemy; but no such fears can ever be entertained in regard to New Granada.13

Thus early it was seen that in the execution of the original plan, the neutrality of the canal involved the innocent passage of ships of war, no matter what nations might be belligerents, as was afterwards and is still the rule in the Suez Canal under the convention of October 29, 1888, between the great Powers.

During the war with Spain, the Department of State was informed by the British Foreign Office, upon an inquiry made by Mr. Hay, that the Suez Canal was open alike to American and Spanish vessels of war. Long prior to this, Lord Granville, in his note of January 7, 1882, to Mr. West, had observed:

The Navy Department of the United States must be well aware that Her Majesty's Government have never sought to bar or even to restrict the use of the canal by the naval forces of other countries, and that even during the recent war between Russia and Turkey, when the canal itself formed a portion of the territory of one of the belligerents, when the seat of conflict was close at hand, and when British interests might in many other respects have been nearly involved, they contented themselves with obtaining an assurance that the sphere of operations should not be extended to the canal.14

Some recent writers have contended that it is "unthinkable" that the United States should allow public vessels of a nation with whom it might be at war to pass through the canal, but taken literally, that is just what the "neutralization" provided for in the Hay-Pauncefote

13 Richardson's Presidents' Messages, Vol. IV, pp. 511-513.

14 "Clayton-Bulwer Treaty and Monroe Doctrine," Senate Ex. Doc. No. 194, 47th Congress, 1st Session, p. 192.

treaty seems to mean. This appears from the six rules prescribed in Article III, and also from the declaration that these rules are substantially the same as the rules for the neutralization of the Suez Canal. While the Hay-Pauncefote treaty provides that the canal shall never be blockaded and that no right of war shall ever be exercised within it, it also seems to provide for the innocent passage of vessels of war, flagrante bello, even if the United States may be one of the belligerents.15 More will be said on this question later on.

The United States and Great Britain had the same conception of the neutralization of the isthmian canal when the Clayton-Bulwer treaty was negotiated, as evidenced by Article II, and they subsequently discussed the manner in which this common right of passage should be exercised in case they went to war with each other, the discussion ending in the recommendation of the following provision, on the 30th of April, 1852, to their respective governments, by Mr. Webster, who was then Secretary of State, and Mr. Crampton, the British minister at Washington:

Whereas it is stipulated by Article II of the convention between Great Britain and the United States of America, concluded at Washington on the 19th day of April, 1850, that vessels of the United States or Great Britain traversing the said canal shall, in case of war between the contracting parties, be exempt from blockade, detention, or capture by either of the belligerents, and that that provision should extend to such a distance from the two ends of the said canal as might thereafter be found expedient to establish; now, for the purpose of establishing such distance within which the vessels of either of said nations shall be exempt from blockade, detention, or capture by either of the belligerents, it is hereby declared that it shall extend to all waters within the distance of twentyfive nautical miles from the termination of said canal on the Pacific and on the Atlantic coasts."

16

The Hay-Pauncefote treaty neutralizes "the waters adjacent to the canal within three marine miles of either end," and also provides that "a vessel of war of one belligerent shall not depart within twenty-four hours of the departure of a vessel of war of the other belligerent." The rules adopted by the United States for the neutralization of the canal 15 See the rules for the neutralization of the canal printed in the margin, infra, p. 37.

16 Reports of Senate Committee on Foreign Relations, 1789-1901, pp. 639, 640.

and its use by all nations on equal terms are six in number and for convenience of reference are printed in the margin."

There were seven of these rules in the Hay-Pauncefote treaty of February 5, 1900. The first rule of the earlier treaty differed from Rule 1 of the treaty now in force in having the words "in time of war as in time. of peace" follow the words "the canal shall be free and open," and in not having the words, "observing these rules," after the words "all nations." Nor did it have the words, "Such conditions and charges of

17 Article III. The United States adopts, as the basis of the neutralization of such ship canal, the following Rules, substantially as embodied in the Convention of Constantinople, signed the 28th October, 1888, for the free navigation of the Suez Canal, that is to say:

1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.

2. The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it. The United States, however, skall be at liberty to maintain such military police along the canal as may be necessary to protect it against lawlessness and disorder.

3. Vessels of war of a belligerent shall not revictual nor take any stores in the canal except so far as may be strictly necessary; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as may result from the necessities of the services.

Prizes shall be in all respects subject to the same rules as vessels of war of the belligerents.

4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the canal, except in case of accidental hindrance of the transit, and in such case the transit shall be resumed with all possible dispatch.

5. The provisions of this article shall apply to waters adjacent to the canal, within 3 marine miles of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time, except in case of distress, and in such case, shall depart as soon as possible; but a vessel of war of one belligerent shall not depart within twenty-four hours from the departure of a vessel of war of the other belligerent.

6. The plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purposes of this treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the canal. - Malloy's Treaties and Conventions, Vol. I, pp. 782-783.

traffic shall be just and equitable." But the provisions for the innocent use of the canal by belligerents in time of war are the same in both sets of rules. Rule 7, in the earlier treaty, expressly prohibiting fortifications, is omitted in the treaty now in force, which, however, ordains, Rule 2, that "the canal shall never be blockaded nor shall any right of war be exercised nor any act of hostility be committed within it."

In the Senate resolution which was adopted in 1835, and to which President Polk referred in his message (supra, p. 34), President Jackson had been respectfully requested

to consider the expediency of opening negotiations with the governments of other nations, and particularly with the governments of Central America and New Granada, for the purpose of effectually protecting by suitable treaty negotiations with them such individuals or companies as may [might] undertake to open a communication between the Atlantic and Pacific Oceans, by the construction of a ship canal across the isthmus which connects North and South America, and of securing forever by such stipulations the free and equal right of navigating such canal to all such nations on the payment of such reasonable tolls as may be established to compensate the capitalists who may engage in such undertaking and complete the work. 18

By whomsoever the waterway is opened, the world-wide physical and economic effects of joining the Atlantic and Pacific remain the same, and the original understanding and desire of all civilized peoples that this stupendous change should be a work of peace for the general benefit of mankind, should be sacredly respected and made good. In his report, accompanying President Hayes' message on the Wyse concession, Mr. Evarts describes the effect of the construction of the canal as "so stupendous a change from the natural configuration of this hemisphere as transforms the Isthmus of Panama from a barrier, between the Atlantic and Pacific Oceans, into a gateway and thoroughfare between them for the navies and merchant ships of the world." The very idea of the union of the oceans and the neutralization of the connecting waterway involves equality of use and is incompatible with the erection of fortifications and the military occupation of the neutralized zone, unless for the protection of its neutrality in the event that it is seriously threatened a contingency which neutralization itself, as exemplified

18 Moore's Inter. Law Dig., III, p. 3.

by the history of the Suez Canal and the countries which have been neutralized, makes most remote and improbable. 19

No people or government has made from the outset clearer declarations or more solemn pledges than the United States for the neutralization and the impartial use of the canal; and those of her citizens who would have her take advantage of her acquisition from Panama of the right to open and equip the waterway at her own cost and who would justify her in seeking to gain some special and peculiar privileges on the ground of expense and ownership, forget that she is a voluntary trustee for mankind, and that until she acquired this right and undertook this task of her own accord, she had always contended that under no circumstances should the enterprise be undertaken or conducted for military purposes or warlike advantage, or with any other end in view but the common, commercial convenience and benefit of the world. Hence it is that in the Hay-Pauncefote treaty, which supersedes the Clayton-Bulwer treaty, the neutralization of the canal, which was declared to be a "general principle" in the former treaty, is declared to be a "general principle" in the latter; and the United States therein and thereby adopts and prescribes substantially the same rules for this neutralization and impartial use of the Panama Canal as those adopted and prescribed in the treaty of October 29, 1888, between the great Powers of Europe for the regulation and conduct of the Suez Canal.

Thus it is, that, although builder and owner of the canal, the United States is not free to use it as she pleases, because before she undertook to build it, she recognized as clearly and insisted as strenuously as Great Britain that the physical change which it would make in the relation and use of the two great oceans of the globe demanded that it should be neutralized and kept free for the common and impartial service of the shipping of the world.

19 On the question of fortifying the canal, see the following articles which have appeared in this JOURNAL: "Neutralization of the Panama Canal," by Peter C. Hains, Vol. 3, p. 354 (April, 1909); "Fortification at Panama," by George W. Davis, Vol. 3, p. 885 (October, 1909); "The Real Status of the Panama Canal as Regards Neutralization," by H. S. Knapp, Vol. 4, p. 314 (April, 1910); "Fortification of the Panama Canal," by Richard Olney, Vol. 5, p. 298 (April, 1911); "The Right to Fortify the Panama Canal," by Eugene Wambaugh, Vol. 5, p. 615 (July, 1911); "The Canal Fortifications and the Treaty," by Crammond Kennedy, Vol. 5, p. 620 (July, 1911).