NEUTRALIZATION OF THE PANAMA CANAL

The question whether or not the United States Government should construct fortifications commanding the entrances to the Panama Canal is one that must be determined by law or public policy. The law is set forth in the Hay-Pauncefote Treaty, and while this does not in terms forbid the construction of fortifications, nevertheless, the principle of neutralization which is established by that treaty imposes on us certain obligations, and if those obligations set a bar to their construction we are morally bound to abstain from constructing them. If the treaty imposes no such obligation, then the question should be determined by policy. Which is the better policy, to construct them or not to construct them?

It might be claimed that some regard should be paid to the professions we have made for more than half a century that the construction of the canal was not for our special benefit, but for the common good of the world on equal terms to all, and that to seek special advantages, such as are supposed to accrue from the construction of fortifications, lays us open to the charge of inconsistency, if nothing more. If the conditions under which those professions of philanthropy were made had changed there might be reason for a change in policy, for nations are seldom consistent except when it is to their advantage to be so. But it is evident that the existing conditions tend to strengthen our ability to adhere to our former policy. We are better able to-day to maintain an attitude of benevolence, if it may be so called, than ever before. Is it wise under these circumstances to adopt a new policy?

It is believed that it can be shown that the Hay-Pauncefote Treaty imposes on the United States, inferentially at least, the obligation to abstain from the erection of fortifications; but that whether it does, or does not, the advantages derived from them are so insignificant that it is better policy not to construct them.

Until the last quarter of the 19th century we were unable alone to protect a canal connecting the two oceans at Panama and the

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idea of constructing one as a governmental enterprise, had not yet been seriously considered by the American people. Being unable to protect it ourselves without aid, we were anxious that other nations. should help us to construct and to maintain its freedom of transit on terms of entire equality. This sentiment is evidenced in documents of the highest official character, which now stand out as silent witnesses to a policy of disinterestedness that we can not consistently abandon without having our motives questioned by all civilized peoples.

The Clayton-Bulwer Treaty, made with Great Britain in 1850, states, that "the contracting parties, likewise agree, that each shall enter into treaty stipulations with such of the Central American states as they deem advisable, for the purpose of carrying out the great design of this convention, namely: that of constructing and maintaining the said canal as a ship communication between the two oceans for the benefit of mankind, on equal terms to all." 1

Henry Clay, speaking for the government of the United States when he was Secretary of State, states that the benefits of the canal 'ought not to be exclusively appropriated to any one nation, but should be extended to all parts of the globe upon payment of a just compensation or reasonable tolls."

The Senate of the United States in 1835, unanimously passed a resolution requesting the President 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 stipulations with them, "the free and equal right of navigation of such canal to all nations, on the payment of reasonable tolls as may be established, to compensate the capitalists who may engage in such undertaking and complete the work."

The House of Representatives, four years later, passed a resolution of similar import.

President Polk, in submitting the treaty made with New Granada, to the Senate, said: "In entering into the mutual guarantees proposed by the thirty-fifth article of the Treaty, neither the Govern

1 The italics are the author's.

ment of New Granada nor that of the United States has any narrow or exclusive view. The ultimate object as presented by the Senate of the United States in the resolution to which I have already referred, is to secure to all nations the free and equal right of passage over the Isthmus."

In 1856, President Pierce sent two commissioners to New Granada to propose the creation of an independent neutral district on the Isthmus, with a view to the security of the transit route. "It is not designed," said Mr. Marcy, then Secretary of State, "to secure any exclusive advantages to the United States. To remove all objections of this sort an article is proposed securing the common use of the Panama route to all foreign nations."

General Cass in 1857, while Secretary of State, asserted in a communication to the British Government, that "the United States demanded no exclusive privileges in the interoceanic passages of the Isthmus."

Mr. Cleveland, in his first message to Congress, uses the following expression with reference to a canal: "Whatever highway may be constructed across the barrier dividing the two great maritime areas of the world must be for the world's benefit, a trust for mankind." 2

In September, 1869, Mr. Hamilton Fish, Secretary of State, in a letter to Mr. Hurlbut, Minister to Colombia, states that President Grant regards the canal as an American enterprise, and he "desires it to be undertaken under American auspices, to the benefit of which the whole commercial world should be fully admitted."

In a letter to the Secretary of State, Mr. Rives, our Minister to France, tells of an interview he had with Lord Palmerston, in which he said to him that, * * "The United States sought no exclusive privilege or preferential right of any kind in regard to the proposed communication, and their sincere wish, if it should be found practicable, was to see it dedicated to the common use of all nations, on the most liberal terms and a footing of perfect equality for all. That the United States would not, if they could, obtain any exclusive right or privilege in a great highway which naturally belonged to all mankind."

2 The italics are the author's.

The foregoing official utterances and the publications of private citizens, both of which might be multiplied indefinitely, show that the people of the United States, while they felt a great interest in the construction of the canal, advocated it from no selfish motive. We were not only willing but anxious that others should enjoy its benefits in common with us. As the nation grew stronger, a less liberal spirit developed, which culminated in the policy of national ownership, as well as exclusive control and management, to the end of giving to the United States supposed military advantages. In furtherance of this idea, the construction of fortifications commanding the entrance to the canal is now advocated, and it is claimed that such construction will not be in conflict with the obligations of neutrality which we have assumed in the Hay-Pauncefote Treaty.

The disastrous failure of De Lesseps at Panama and the less disastrous, but no less complete, failure of the Maritime Canal Company at Nicaragua, demonstrated the magnitude of the enterprise and produced an impression, not well founded, that success was only to be accomplished by this government itself undertaking the job. As a matter of fact, however, had the United States government held itself aloof and not determined to build a canal, it is quite probable that the Panama Canal would have been built by a private corporation. There was no justification for two canals, and if the United States undertook the construction of one, the other could not be financed.

There was one serious obstacle, however, in the way of the government of the United States building the canal. The Clayton-Bulwer Treaty bound both nations never to obtain or maintain exclusive control over any railway or canal across the Isthmus. Under the obligations of that treaty the construction of the canal by the United States Government was impracticable, and there seemed to be no honorable way out of the difficulty except by a supplemental treaty.

The much maligned Clayton-Bulwer Treaty was practically an alliance between Great Britain and the United States, made for the purpose of protecting and maintaining the freedom of transit across the Isthmus. Notwithstanding all the maledictions heaped on it by the American people, it was not such a bad treaty for the United

States after all. At the time it was made, Great Britain occupied a part of Central America and claimed ownership of the country at the mouth of the San Juan River, the Atlantic terminus of the proposed Nicaragua canal. It is doubtful whether or not this claim could have been successfully contested, and if it could not, it would have given Great Britain absolute control of that route, then regarded as the best, and would have placed the United States in a position of great disadvantage.

With a view, however, to giving the United States the right to build and own a canal to connect the two oceans, Great Britain, in a commendable spirit of fairness, consented to a supplemental treaty. This is known as the first Hay-Pauncefote Convention. It was approved by President McKinley and submitted to the Senate of the United States for ratification. After considerable debate, several amendments were adopted, and in its amended for it was ratified by the Senate.

The essential parts of the treaty as amended are as follows:

Article I.

It is agreed that the canal may be constructed under the auspices of the Government of the United States, either directly at its own cost, or by gift or loan of money to individuals or corporations or through subscription to or purchase of stock or shares, and that, subject to the provisions of the present Convention, the said Government shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.

Article II.

The High Contracting Parties, desiring to preserve and maintain the general principle" of neutralization established in Article VIII of the Clayton-Bulwer Convention, which convention is hereby superseded. adopt, as the basis of such neutralization, the following rules, substantially as embodied in the convention between Great Britain and certain other Powers, signed at Constantinople, October 29, 1888, for the Free Navigation of the Suez Maritime Canal,3 that is to say:

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

3 See Supplement, p. 123.