The Hay-Pauncefote Treaty, which by its terms superseded the Clayton-Bulwer Treaty, "without impairing the 'general principle' of neutralization" established therein,' permitted the construction of an essentially American canal under American control. It was to be maintained and protected by the United States, which was not denied the right of fortification, or burdened with the duty of sharing the work of maintenance or protection with Great Britain

Cullom, Chairman of the Senate Committee on Foreign Relations, Dec. 12, 1901: "The Clayton-Bulwer Treaty of 1850, which contemplated the construction of a canal under the joint auspices of the two Governments, to be controlled by them jointly, its neutrality and security to be guaranteed by both, was almost from the date of its ratification the subject of frequent discussion and occasional irritation between the two Governments. Nearly half a century elapsed without any step being taken by either toward carrying it into practical effect by the construction of a canal under its provisions. Instead of being, as was intended, an instrument for facilitating the construction of a canal it became a serious obstacle in the way of such construction. In the meantime the conditions which had existed at the time of its ratification had wholly changed. The commerce of the world had multiplied many fold. The growth of the United States in population, resources, and ability had been greater still. The occupation and development of its Pacific coast and its commercial necessities upon the Pacific Ocean created a state of things hardly dreamt of at the date of the treaty. At last the acquisition of the Hawaiian and the Philippine Islands rendered the construction of the canal a matter of imperative and absolute necessity to the Government and people of the United States, and a strong national feeling in favor of such construction arose, which grew with the progress of events into an irrevocable determination to accomplish that object at the earliest possible moment..

"But the Clayton-Bulwer Treaty stood in the way. Great Britain did not manifest, and it is believed did not entertain, the remotest idea of joining or aiding in such a work. The United States was able to bear alone the entire cost of the canal, but was apparently prohibited by the existing treaty from undertaking the enterprise which, although carried out at its own expense, would redound to the benefit of the world's commerce quite as much as to its own advantage. The President, loyal to treaty obligations, was unwilling to countenance any demand, however widespread, for proceeding with the construction of the canal until he could obtain by friendly negotiation, on which he confidently relied, the consent of Great Britain to the abrogation of the Clayton-Bulwer Treaty, or such a modification of its terms as would enable the United States untrammeled to enter upon the great work whose successful accomplishment was vitally necessary to its own security, and would benefit the people of all other nations according to their respective interests in the commerce of the world.

"Such was the situation in which the negotiations for the supersession of the treaty were commenced and have been conducted, and we cannot but recognize the fair and friendly spirit in which the successive overtures of the United States toward that end have been met by Great Britain." Diplomatic History of the Panama Canal, Senate Doc., No. 474, 63 Cong., 2 Sess., 53, 54-55.

1 Art. I and preamble. Concerning the history of negotiations between the United States and Great Britain following the amendments upon which the Senate conditioned its approval of a convention signed Feb. 5, 1900, and which were unacceptable to the latter State, see Diplomatic History of the Panama Canal, Senate Doc. No. 474, 63 Cong., 2 Sess., Part I.

"The President was, however, not only willing, but desirous, that the 'general principle' of neutralization referred to in the preamble of this [the Clayton-Bulwer] Treaty should be applicable to this canal now intended to be built, notwithstanding any change of sovereignty or of international rela

THE PANAMA CANAL

[§ 198 or other powers of any continent. On its part the United States agreed to adopt "as the basis of neutralization" certain rules, substantially as embodied in the convention of Constantinople, of October 29, 1888.2 These announced (a) that the canal should be free and open to the vessels of commerce and of war of all nations observing the rules,3 on terms of entire equality, and without discrimination in respect of the conditions or charges of traffic, or otherwise, and that those conditions and charges should be just and equitable; (b) that the canal should never be blockaded, and that no right of war should be exercised or any hostility be committed within it, the United States, however, to be at liberty to maintain such military police along the canal as might be necessary to protect it against lawlessness and disorder; (c) that vessels of war of tions of the territory through which it should pass. This 'general principle' of neutralization had always in fact been insisted upon by the United States, and he recognized the entire justice of the request of Great Britain that if she should now surrender the material interest which had been secured to her by the first Article of the Clayton-Bulwer Treaty, which might result in the indefinite future should the territory traversed by the canal undergo a change of sovereignty, this 'general principle' should not be thereby affected or impaired.' Dept. of State, memorandum, Diplomatic Hist. of Panama Canal, Senate Doc. No. 474, 63 Cong., 2 Sess., 66.

Art. IV contained the agreement that "no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization of or the obligation of the High Contracting Parties under the present treaty."

1 See communication of Sir Edward Grey, British Foreign Secy., to Mr. Bryce, British Ambassador at Washington, Nov. 14, 1912, in relation to Panama Canal tolls, For. Rel. 1912, 481, 482, 484. Compare memorandum of President Taft, Aug. 12, 1912, id., 475, 476–477.

"The whole theory of the treaty is that the canal is to be an entirely American canal. The enormous cost of constructing it is to be borne by the United States alone. When constructed it is to be exclusively the property of the United States, and is to be managed, controlled, and defended by it. Under these circumstances, and considering that now by the new treaty Great Britain is relieved of all the responsibility and burden of maintaining its neutrality and security, it was thought entirely fair to omit the prohibition that 'no fortification shall be erected commanding the canal or the waters adjacent."" Dept. of State memorandum, sent by Mr. Hay to Senate Committee on Foreign Relations, Diplomatic Hist. of Panama Canal above cited, 61, 64. 2 For the text of the Suez Canal Convention, see Brit. and For. State Pap., LXXIX, 18; Am. J., III, Supp., 123. With respect to the Suez Canal see Bonfils-Fauchille, 7 ed., § 512, and literature there cited; Oppenheim, 2 ed., I, 183; bibliography contained in Frank M. Anderson and Amos S. Hershey, Handbook for the Diplomatic History of Europe, Asia, and Africa (18701914), National Board for Historical Service, Washington, 1918, 107-108; Library of Congress, List of Books and Periodical Literature Relating to Interoceanic Canals and Railway Routes, 1900, 95–131.

3 There was omission of the words "in time of war as in time of peace", contained in the proposed convention of Feb. 5, 1900, Senate Doc. No. 160, 56 Cong., 1 Sess. There was also omission of a rule forbidding the erection of fortifications, and which had been contained in that convention, and which was embraced in the Rules of the Suez Canal Convention of 1888.

Concerning the repeal of certain provisions of the Panama Canal Act of Aug. 24, 1912, exempting American vessels engaged in the coastwise trade of the United States from the payment of tolls, see supra, § 54.

a belligerent should not revictual nor take any stores in the canal except so far as might be strictly necessary, the transit of such vessels to be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as might result from the necessities of the service, and prizes to be in all respects subject to the same rules as vessels of war of the belligerents; (d) that no belligerent should embark or disembark troops, munitions of war or warlike materials in the canal, except in case of accidental hindrance of transit, in which case the transit should be resumed with all possible despatch; (e) that the provisions of the Article (embracing the rules) should apply to waters adjacent to the canal, within three marine miles of either end, and that vessels of a belligerent should not remain in such waters longer than twentyfour hours at any one time, except in case of distress, and in such case depart as soon as possible, but that a vessel of war of one belligerent should not depart within twenty-four hours from the departure of the vessel of war of the other belligerent; (f) that the plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal should be deemed to be part thereof, for the purposes of the treaty, and in time of war as in time of peace, should enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the Canal.1

By the treaty with Panama of November 18, 1903, whereby the United States, as has been elsewhere noted,2 became the lessee in perpetuity of a zone traversing the territory of the former State, it was agreed that the Canal when constructed should be "neutral in perpetuity", and should "be opened upon the terms provided for by Section I of Article Three of, and in conformity with all the stipulations of, the Hay-Pauncefote Treaty.3 It was declared that the Government of the Republic of Panama should have the right to transport over the Canal its vessels and its troops and munitions of war in such vessels at all times without paying charges of any kind. To the United States was accorded the right to use its police and its land and naval forces, or to establish fortifications 1 See Neutrality Proclamation of President Wilson with respect to the Panama Canal Zone, Nov. 13, 1914, American White Book, European War, II, 18.

2 Panama, supra, § 20. See Malloy's Treaties, II, 1349.

3 Art. XVIII.

4 Art. XIX. It was here also provided that the exemption was to be extended to the auxiliary railway for the transportation of persons in the service of the Republic of Panama, or of the police force charged with the preservation of public order outside of the zone, as well as to their baggage, munitions of war and supplies.

THE PANAMA CANAL

[§ 198 for the protection of the Canal or of vessels making use of it, or of the railways or auxiliary works thereof.1

The treaties with Great Britain and Panama did not apparently contemplate the impressment upon the Canal of a status of neutralization. There was an absence of any collective guaranty appropriate to such an end, and no design of uniting interested maritime States in such an undertaking. The work of maintenance and defense was left to a single power. No obligation was assumed by the United States not to bar the use of the waterway by an enemy, and not to protect it by force. No plan was devised to remove from an enemy (except possibly Great Britain or Panama, should either of those States unhappily wage war against the United States) the right to attack the Canal with a view to its seizure for strategic or other purposes.3 Nor was the United States prevented from permitting, when a neutral, such uses of the waterway by belligerent maritime States as it might lawfully accord them in its own ports.1

1 Art. XXIII.

2 "In the event of the remote and well-nigh impossible contingency of a war between the United States and Great Britain, each party is remitted to its natural right of self-defense, but, even in that emergency, by force of the sixth clause of Article III — which is the only clause in the treaty by its terms expressly applying in time of war as in time of peace the plant, establishment, buildings, and all works necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, and shall enjoy complete immunity from attack or injury by the enemy, and from acts calculated to impair their usefulness as part of the canal." Mr. Hay, Secy. of State, to Mr. Cullom, Chairman of Senate Committee on Foreign Relations, personal, Dec. 12, 1901, Diplomatic Hist. of Panama Canal, above cited, 53, 59.

The question presents itself, however, whether the long-continued use of the canal by the public as well as private vessels of a foreign State, under the rules of the treaty of 1901, would not impose upon it a duty, when at war with the United States, such as would be imposed on Great Britain were it the enemy of the United States. It might be urged with force that the acceptance and use of privileges of transit, which the United States was not obliged itself indiscriminately to accord, created a corresponding duty not to commit acts which in time of war the rules expressly forbade. 4 Chas. H. Stockton, Outlines, 144.

"The latter word [neutralisation] is frequently used in reference to the Suez Canal; but, strictly speaking, it is not correct, inasmuch as the passage of belligerent warships is permitted, whilst in neutralised territory the passage of belligerents' forces is prohibited. Lord Cromer, speaking of the term 'neutralisation' as applied to the Suez Canal, cited Lord Pauncefote as saying that it had reference only to the neutrality which attaches by international law to the territorial waters of a neutral State, in which a right of innocent passage for belligerent vessels exists, but no right to commit any act of hostility. Phillipson and Buxton, Question of the Bosphorus and Dardanelles, London, 1917, 239, citing Earl of Cromer, Modern Egypt, London, 1908, II, 384. It may be observed that Lord Cromer in the course of his statement referred to Lord Pauncefote as "an excellent authority on this subject.' Dr. Hershey, in his Essentials of International Law, 1912, p. 211, Note 38, also adverted to Lord Cromer's statement.

Concerning the right of the United States to fortify the Canal, see George

The permanence of the isolation of the Canal from scenes of hostility, to the extent of the requirements of the Hay-Pauncefote Treaty, thus appears to depend technically upon the military and naval power of the United States. To this, however, must be added the vast influence of the moral (and possibly naval) support of Great Britain which, although unburdened by a legal obligation, must always be regarded as constituting in fact a co-guarantor.

C

The Supremacy of the Territorial Sovereign Over the National Domain (1)

$199. In General.

States are agreed that within the national domain the will of the territorial sovereign is supreme. That will must, therefore, be exclusive, opposing the assertion of any other, and excluding the lawfulness of obedience to the commands of such other. There can be no conflict of right in the matter.1

In the application of this principle international differences frequently arise in cases where it is believed that the territorial sovereign has abused its rights as such, or where it is contended conversely, that within the national domain some public foreign agency has committed acts in derogation of the rights of that sovereign. Controversies also arise as to the extent to which a State has, for any reason, consented to relax its right of exclusive control in favor of a foreign power. It will be observed that in all of these situations the particular problem concerns the relation of the territorial sovereign to a foreign State or its nationals by reason of conduct or occurrences taking place within the domain of the former. This is true whether the acts complained of have been committed by that sovereign or by some foreign individual or agency in opposition to its will.

B. Davis, "Fortification at Panama", Am. J., III, 885; Peter C. Hains, "Neutralization of the Panama Canal", id., III, 354; H. S. Knapp, "The Real Status of the Panama Canal ", id., IV, 314; Crammond Kennedy, "The Canal Fortifications and the Treaty", id., V, 620; Richard Olney, “Fortification of the Panama Canal", id., V, 298; Eugene Wambaugh, "The Right to Fortify the Panama Canal", id., V, 615.

1 Declares Hall: "And it being a necessary result of independence that the will of the state shall be exclusive over its territory, it also asserts authority as a general rule over all persons and things, and decides what acts shall or shall not be done, within its dominion." Higgins' 7 ed., p. 49. See, also, Beale's Cases on Conflict of Laws, III, Summary, § 23.

See Rights of Jurisdiction, In General, infra, § 218.