like the United States, on any different footing from those signing the convention, to which answer was made that there had been none, and as a result in that war the Suez Canal was open to both belligerents, as had been the case in the FrancoGerman War of 1870, the Russo-Turkish War of 1877, and since in the Russo-Japanese War of 1904.

In the declaration respecting Egypt and Morocco, signed at London in 1904 by Great Britain and France, Article 6 reads as follows: "In order to insure the free passage of the Suez Canal, his Britannic Majesty's Government declares that they adhere to the stipulations of the treaty of October 29, 1888, and that they agree to their being put in force. The free passage of the canal being thus guaranteed, the execution of the last sentence of par. I as well as par. II of Article 8 of that treaty will remain in abeyance." These paragraphs refer to a watching over the canal with regard to men-of-war in time of war and peace by the agents of the signatory powers.1

The expression neutralization is often used with respect to the status of the Suez Canal in time of war. But this term varies in use and meaning. It is neutralized in the sense that no acts of hostility can be committed, without a violation of treaty, within its limits or those of the terminal waters. But it is not neutralized in another sense, as it can be used in war time for passage through by belligerents for any warlike expedition whose objective is exterior to the canal. It is not even similar to marginal territorial waters of a neutral, as these waters have no limitations as to time of arrival and departure. Certainly it is not like neutralized land territory, for passing through such territory is denied. It is sui generis, common to all vessels, to whom warlike operations are denied while passing through. It remains to be seen how it will be operated when Great Britain becomes a belligerent against another powerful naval belligerent. In this connection, and it is useful as a precedent for Panama, we must remember that, in 1882, Great 1 Stockton's "Naval Manual," pp. 107-9.

Britain occupied the canal from end to end and made it the base of warlike operations in Egypt..

73. The Panama Canal.-As to the Panama Canal, now completed within the Canal Zone ceded to the United States for that purpose by the republic of Panama, its status differs from the Suez Canal or any other canal mentioned.

In the first place, it has been constructed directly by the United States of America, under the auspices of the general government, in territory originally foreign but now held according to treaty in perpetuity. On account of the existence of a previous treaty dealing with the interoceanic canal and transit across the American isthmus, connecting North and South America, and generally known as the Clayton-Bulwer treaty, a relationship existed in this question between Great Britain and the United States. This treaty between the two states has been succeeded by another treaty on the same subject known as the Hay-Pauncefote treaty of 1901 and now in force. In addition, the canal question is governed also by the treaty between the United States and the republic of Panama, concluded in 1903 and proclaimed after ratification, February 26, 1904. This treaty is known as the Hay-Bunau-Varilla treaty. The territory through which the canal passes may be considered as being affected by the treaty of 1846, between the United States and Colombia, still in force, the settlement of the questions concerned being still a matter of negotiation between the two countries.

In a physical sense the Panama Canal differs from other canals, as its connection is more direct than any existing canal between the two great oceans of the world, and it creates, to a large extent, new sea routes, some of them to countries which, though governed by the white race, are but imperfectly developed. In a military sense it may become of the greatest importance to the United States, while commercially it opens exceptional possibilities for sea trade and intercourse.

The Clayton-Bulwer treaty was the first treaty negotiated

which governed the question of international waterways across the American isthmus. It was formulated, in 1850, between Great Britain and the United States, and, though perpetual in its nature, it was superseded by mutual consent by the HayPauncefote treaty of 1901.

The preamble of the Clayton-Bulwer treaty declared that the two countries desired to consolidate their friendship by "setting forth and fixing in a convention their views and intentions with reference to any means of communication by ship canal which may be constructed between the Atlantic and Pacific Oceans." The first article forbade exclusive control and also further fortifications, colonization, and occupation over territory likely to be used for a canal.

In case of the construction of a canal, vessels of both states were to be exempt from blockade, detention, or capture within the limits of the canal and a certain distance of the terminal waters. The neutrality of the canal was to be guaranteed, and it was to be forever open and free. The eighth article declared that a general principle was to be established by which the protection of both countries was extended to any interoceanic transit, either by canal or railway.

The first objection to the treaty, that of its perpetuity, was, in general, the objections that pertain to all perpetual treaties; circumstances change in time, and such treaties become either of doubtful benefit or antagonistic to the present interests of one or both of the parties concerned. This was the case of this treaty, and the objections to the treaty as it stood were very ably and specifically enumerated by Secretary Blaine in a communication to Mr. Lowell, then minister to Great Britain, under date of November 19, 1881. In this communication Mr. Blaine states the following, which is interesting even at the present time: "Nor does the United States," he says, "seek any exclusive or narrow commercial advantage. It frankly agrees and will by public proclamation declare at the present time, in conjunction with the republic on whose soil the canal

may be located, that the same rights and privileges, the same tolls and obligations for the use of the canal shall apply with absolute impartiality to the merchant marine of every nation on the globe."1

The Hay-Pauncefote treaty provides in the first article the agreement that this treaty should supersede the ClaytonBulwer treaty. In the second article it is agreed that the canal may be constructed under the auspices of the government of the United States and that, subject to the provisions of the present treaty, the said government should have all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.

The following rules were contained in the third article of the treaty:

"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, shall 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 service.

"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, muni

1 Moore's "Digest," vol. III, pp. 190, 191, 193.

tions of war, or warlike materials in the canal, except in case of accidental hinderance of the transit; and in such case the transit shall be resumed with all possible despatch.

"5. The provisions of this article shall apply to waters adjacent to the canal, within three 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 twentyfour hours from the departure of a vessel of war of the other belligerent.

"6. The plant, establishment, buildings, and all work necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purpose 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."

This treaty differs from both the Suez Canal convention and the Clayton-Bulwer treaty in that it does not forbid the erection or maintenance of fortifications. It differs from both also in that it does not provide for war between the contracting parties or between the United States and other powers, the dual guarantee by the Clayton-Bulwer treaty being replaced by a single assumption by the United States. It has no provision for the adherence of any other powers, either in the treaty or the guarantee.1

The first draught of the Hay-Pauncefote treaty was not ratified by the Senate of the United States, and while the second draught was being arranged between the United States and Great Britain the discussion between the negotiators included the subject of the fortification of the canal by the United States. Upon this question Lord Lansdowne, then the British foreign minister, said in a memorial that "as to this (the

"The Status of Panama Canal," etc., A. J. I. L., H. S. Knapp.