Thus has the author endeavored to outline the relation of the home government to its citizens domiciled abroad, as it appears in statutes, treaties, diplomatic documents and decisions of the United States Supreme Court. It has been impossible within the limits of this article to set them forth more fully, but it is believed that what has been said will aid the student in arriving at a correct conclusion, not only as to the existing law, but as to the honorable traditions of the Department of State of the United States.

EVERETT P. WHEELER.

FORTIFICATION AT PANAMA

In the very able paper appearing in a previous issue of this JOURNAL,1 discussing the question of whether the United States should or should not fortify the Panama Canal, the writer states his conclusion that we are legally and morally bound to abstain from fortifying, that the advantages which fortifications might give are more than offset by their disadvantages, and, irrespective of the question of legality, it is bad public policy and strategy to fortify.

Under the caption adopted for this paper it is proposed to discuss the subject under three headings, as follows:

First. The American policy as respects control and protection. Second. The international and moral obligations restraining us. Third. The expediency of defending the waterway by forcible

means.

The American policy as respects control, protection, and fortification

In a special message to Congress, May 5, 1856, President Pierce, referring to an interruption of the isthmian transit via Panama and Nicaragua, remarked:

It would be difficult to suggest a single object of interest, external or internal, more important to the United States than the maintenance of the communication by land and sea, between the Atlantic and Pacific states and territories of the Union. It is a material element of the national integrity and sovereignty.

In his first message to Congress, December 8, 1857, President Buchanan, referring to a recent interruption of traffic by the Panama railway, said:

The isthmus of Central America including that of Panama is the great highway between the Atlantic and Pacific over which a large part of the commerce of the world is destined to pass. The United States is more deeply interested than any other nation in preserving the freedom and security of all the communications across the isthmus. It is our duty, therefore, to take care that they shall not be interrupted.

18:354, (April, 1909).

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I recommend to Congress the passage of an act authorizing the President in case of necessity, to employ the land and naval forces of the United States to carry into effect the guarantee of neutrality and protection, which the United States had undertaken by the treaty with New Granada of 1846.

On March 8, 1880, President Hayes, in transmitting a report of the secretary of state to the senate, and in response to its request for the views of the president touching our canal policy, stated:

With respect to the construction of an interoceanic canal by any route across the American isthmus, the policy of this country is a canal under American control. The United States can not consent to the surrender of this control to any European power or to any combination of European powers. It is the right and duty of the United States to assert and maintain such supervision and authority over any interoceanic canal across the isthmus as will protect our national interests.

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Ex-President Grant in writing for the North American Review in February, 1881, stated in a single sentence the American policy respecting an interoceanic canal:

In accordance with the early and later policy of the government, in obedience to the often expressed will of the American people, with a due regard to our national dignity and power, and with a watchful care for the safety and prosperity of our interests and industries on this continent, and with a determination to guard against even the first approach of rival powers, whether friendly or hostile, on these shores, I commend an American canal, on American soil, to the American people.

The Clayton-Bulwer treaty provided for an international guarantee and protection of any means of interoceanic communication that might be made in Central America or at the isthmus. While the French were preparing for beginning the work of canal digging at Panama, and a danger was looming up, public opinion would not tolerate the idea that we were to remain silent, or to share control with any European power of an American canal on American soil.

President Arthur said to Congress in 1881:

This government learned that Columbia had proposed to the European. powers to join in a guarantee of the proposed Panama canal - a guarantee which would be in direct contravention of our obligation as the sole guarantor of the integrity of Colombian territory, and of the neutrality of the canal itself. My lamented predecessor felt it his duty to lay before the European powers the reasons which make the prior guarantee of the

United States indispensable, and for which the interjection of any foreign guarantee might be regarded as a superfluous and unfriendly act.

The United States looked on with complaisance at the futile efforts of the French to open the water way at Panama, but did not fail to warn Colombia that she had exceeded her power when she granted authority to a private company to open the route and fix the tolls without consulting the United States, the sole protector under the treaty with New Granada of 1846, of any means of isthmian transit that might be made effective. He also reminded Colombia before the work was actively undertaken by De Lesseps that the provision in the Wyse-Salgar contract providing for the free use of the canal by the government and citizens of Colombia and for uniform charges for the use of the canal by the shipping of all other nations was in conflict with the terms of our treaty of 1846, with that republic, wherein it was expressed that the United States, in its use of any canal across Colombian territory should enjoy all the rights, privileges, and immunities that Colombia enjoyed. Had the French succeeded we would have been obliged in self interest to have it in our power to effectively guard and protect the waterway.

These negotiations of 1881 resulted in the Trescott-Santo Domingo protocol of February 17, 1881, whereby the equality of rights of use by the sovereign and the United States was definitely reiterated, but it was also provided (a) that the two governments would select points on the isthmus deemed proper for fortifications temporary or permanent, for military or naval depots, coaling stations, and dockyards, and provide for their establishment and joint occupation; (b) that in any modification of the canal tolls or charges proposed by the canal company, the United States and Colombia should act in concurrence; (c) that the canal should not be considered open in time of peace to the war vessels of any nation except those of the United States and Colombia; but that they will declare the canal open to the innocent use of the war vessels of other nations subject to regulations jointly prescribed; and (d) that should the sovereignty of Colombia be threatened because of the closing of the canal to war vessels of other powers, the United States will cooperate with Colombia in the defense of her sovereignty and territory.

It is no secret that the influence of the French canal company was sufficient to secure the rejection of this protocol by the government of Colombia. But through these negotiations, though abortive, the United States made known to the world the terms and conditions we would insist on in making effective our guarantee of protection of 1846.

The correspondence between our Department of State and the British Foreign Office in 1881 throws a flood of light upon the questions of control, protection, and fortification of the isthmian canal. It was then common knowledge that Mr. De Lesseps and the Colombian government were anxious to secure for the Panama Canal an international guarantee of protection and neutrality by the great world powers and it was understood that some European chancelleries had a proposal to that effect under consideration.

In a dispatch from Secretary Blaine to Mr. Lowell, American minister in London, President Garfield's views respecting the protection of the canal were definitely stated to the British government. It was remarked in the dispatch of June 24, 1881:

By the thirty-fifth article of that treaty [with Colombia, 1846] in exchange for certain concessions made to the United States we guaranteed "positively and efficaciously" the perfect neutrality of the isthmus and of any interoceanic communication that might be constructed upon or over it for the maintenance of free transit from sea to sea; and we also guaranteed the rights of sovereignty and property of Columbia over the territory of the isthmus as included in the borders of the State of Panama.

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In the judgment of the President this guarantee, given by the United States, does not require reenforcement, or accession, or assent of any power. If the foreshadowed action of the European powers should assume definite shape it would be well for you to bring to the notice of Lord Granville the provisions of the treaty of 1846, and especially of its thirty-fifth article and to intimate to him that any movement in the sense of supplementing the guarantee contained therein would necessarily be regarded by this government as an uncalled-for intrusion into a field where the local and general interests of the United States of America must be considered before those of any other power save those of Colombia alone, which has derived and will continue to derive such eminent advantages from the guarantee of this government.

It is as regards the political control of such a canal as distinguished from its merely administrative or commercial regulation that the Presi