out only three miles from shore. The omission, therefore, of the words, “in time of war as in time of peace" from clause 1, Article III, is not important.

The Treaty of Constantinople reads: "The Suez Maritime Canal shall always be free and open in time of war as in time of peace, to every vessel of war or commerce, without distinction of flag." The Hay-Pauncefote Treaty reads: "The canal shall be free and open to vessels of commerce and war of all nations observing these Rules on terms of entire equality." It can not be said that these provisions are identical in meaning, but neither are the conditions in the two cases. Both cover the same ground, but in different ways. Both aim at the same target; viz: immunity from war and freedom of passage.

The Treaty of Constantinople was made by nine different nations speaking different languages. It was important that ambiguity should not arise from translation. The Hay-Pauncefote Treaty is a treaty made by two nations, speaking a common language. There is no danger of misunderstanding from translation, whatever there may be from other causes.

Clause 2 of Article III of the Hay-Pauncefote Treaty, as finally ratified, provides that, "The United States, however, shall be at liberty to maintain such military police along the line of the canal as may be necessary to protect it against lawlessness and disorder." The army is an organization provided for by law, officered and equipped for regular military service and used for attack or defense. It may perform the duties of a military police and often does, but its chief function is fighting the organized forces of an enemy. The military police referred to in the treaty, on the other hand, is designated to suppress "lawlessness and disorder," both of which may result from the presence of turbulent and unruly characters on the isthmus rather than from the armed forces of an enemy. It would seem, therefore, that a special organization was referred to. because of the absence of fortifications. Had fortifications been contemplated, there would always be present an organized military force, and this force would always be available to suppress lawlessness and disorder. The first draft of the treaty as amended by the

United States Senate contained, a provision prohibiting the erection of fortifications and authorizing the maintenance of a military police to suppress "lawlessness and disorder." The authorization of a military police seems to follow as a corollary to the prohibition of fortifications. The second treaty which was ratified by both governments contained the same authorization of a military police, but the specific prohibition of fortifications was omitted. The inference seems clear, that the authorization of the military police in the second treaty was inserted, because, inferentially, though not in specific terms, fortifications were prohibited.

The same clause, Article II, states that " no right of war shall be exercised nor any act of hostility committed within it " [the canal]. The erection of permanent fortifications by the United States in time of peace may not be the exercise of a right of war, but it is a preliminary step in that direction. Their erection is an admission that they are intended to be used. If they be used, a right of war will be exercised. The prohibition, therefore, of their erection would seem to be superfluous. The canal must, of course, be protected, but it need not be by fortifications.

The Senate Committe on Foreign Relations, when it made its report on the first Hay-Panucefote Treaty, said: "Whatever canal is built in the Isthmus of Darien, will be ultimately made subject to the same laws of freedom and neutrality as governs the Suez Canal, as a part of the laws of nations."

The treaty with the Republic of Panama provides, that the cities and harbors of Colon and Panama, though both are in the Canal Zone, are not transferred to the jurisdiction of the United States, but that those cities and harbors remain within the jurisdiction of the Republic of Panama. The construction of fortifications will, therefore, practically make both Colon and Panama fortified towns. Panama may be said to be so already, because there exists to-day a fort erected many years ago to resist the incursions of pirates. Colon, however, is a more modern town, having been built since the completion of the railroad and has no defenses. Some of the guns

needed to defend the Colon entrance to the canal would be located in the town itself. But are we not morally bound to abstain from

putting the little republic in the unenviable position of being ground between the upper and nether millstone? Ought we to render those towns by fortifying them liable to bombardment in time of war? The practice of bombarding unfortified towns has been condemned as illegitimate warfare, but fortified towns can not claim immunity. Article XVIII of the Treaty with Panama reads: "The Canal when constructed, and the entrances thereto shall be neutral in perpetuity."

Article XV reads: "For the better performance of the engagements of this Convention and to the end of the efficient protection of the canal and the preservation of its neutrality, the Government of the Republic of Panama will sell, etc."

There can be no doubt as to the meaning of these two sentences. It is not necessary to go back to the circumstances leading up to the conclusion of the treaty to determine what is menat by "neutral in perpetuity" and "the preservation of its neutrality." Those circumstances throw no light on the meaning of the words. Their true meaning is to be found in the general understanding of English speaking people, and not on circumstances leading up to the making of the Treaty.

Article XXIII of the treaty with Panama reads: "If at any time it should become necessary to employ armed forces for the safety or the protection of the canal the United States shall have the right * to establish fortifications." This

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is clearly the grant of a right to construct fortifications after the necessity has arisen. Surely, we can not claim the right to construct them in time of peace on this grant of authority.

It has been thought by some that inasmuch as a clause was incorporated in the first treaty forbidding fortifications, which clause was omitted in the second, the omission was for the purpose of giving us the right to construct them. This is not a fair conclusion. It might with equal justice be claimed, that the omission of the clause giving the United States the right to take such measures as it might find necessary for the security by its own forces the defense of the United States and the maintenance of public order, which was inserted by the Senate in the first, but omitted in the second, deprived

the United States of this right. Both were in the first treaty as amended and ratified by the Senate only, and both were omitted in the second which was ratified by both governments. As a matter of fact, they were both omitted at the suggestion of the British Government, because they were not believed to be in harmony and were likely to cause misunderstanding. The treaty was a compromise of conflicting views of the Senate of the United States and the British Government. Each side yielded points to the other for the purpose of reaching agreement, but the general theory on which the first treaty was based, was adhered to as closely as could be done under the circumstances.

We are told by the advocates of fortifications that the HayPauncefote Treaty does not establish neutralization, that the language is ambiguous and that the treaty should have been concurred in by a large number of powers to render the guarantee of neutrality effective. This claim practically admits that neutralization and fortification are incompatible. But can we claim that we have acquired the right to construct the canal as a governmental enterprise, which we could not do while the Clayton-Bulwer Treaty stood in the way, and yet have incurred no obligation to neutralize it after construction? It can scarcely be maintained that all the treaty is ambiguous. The words, "the United States adopts as the basis of the neutralization of such ship canal the following Rules," etc., seems clear enough. They show that it was the intentions of the United States to neutralize the canal and the foundation on which such neutralization was to rest, were certain rules taken almost verbatim from the Treaty of Constantinople which neutralized the Suez Canal. There is no doubt that the British Government as well as our own, understood, at the time the treaty was made, that it neutralized the canal and that is unquestionably the understanding of the British Government to-day. That other nations were not invited to accede to its terms is our own fault, if there be a fault. They would gladly have done so, but we did not want them to become parties to a treaty that might be construed as giving them a right to meddle in Isthmian affairs.

It is incredible that two such men as John Hay, late Secretary

of State, and Lord Pauncefote, the British Ambassador, who negotiated the treaty, could have been ignorant of the meaning of the word "neutralization ", which is used repeatedly in the treaty. It is equally incredible that they should have known its meaning and yet have used it in an imporoper sense. Moreover, the Senate of the United States must take its share of the blame, for it allowed the word to remain in it. The treaty was not negotiated in a day, several years were spent in its discussion. There can be no doubt that a clear understanding of the word was had, and that its meaning as used in the treaty, was in accord with the popular one at the time existing in this country and in Europe.

The following is taken from the report of the Committee on Foreign Relations of the Senate that had charge of the HayPauncefote Treaty:

No American statesman, speaking with official authority or responsbility, has ever intimated that the United States would attempt to control this canal, for the exclusive benefit of our Government or people. They have all, with one accord, declared that the canal was to be neutral ground in time of war, and always open, on terms of impartial equity, to the ships and commerce of the world.

The same Committee states that:

the United States can not take an attitude of opposition to the principles of the great Act of October 22 (29), 1888, without discrediting the official declarations of our Government for fifty years on the neutrality of an Isthmian Canal and its equal use by all nations, without discrimination.

The following extract from a letter of Lord Landsdowne to Mr. Hay, Secretary of State, has been quoted as proof that Great Britain conceded the right to construct fortifications at the request of the United States:

I understand that by omission of all reference to the matter of defense, the United States Government desires to reserve the power of taking measures to protect the canal, at any rate, when the United States may be at war, from destruction or damage at the hands of enemies * * I am not prepared to deny that contingencies may arise when not only from a national point of view, but on behalf of the commercial interests of the whole world, it might be of supreme importance to the United States that they should be free to adopt measures of the defense of the canal at a moment when they were themselves engaged in hostilities.