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of the Colonies, and the Constitution will last as long as it answers the needs of its framers, and no longer. To understand the Constitution, English customs and usages must be studied

and we must interpret the language of the Constitution in the light of its origin, as well as in the concrete case under investigation. It is the same with law.65

To hold that the Constitutional Convention foresaw the extension of maritime jurisdiction to the Great Lakes is not to make its members good statesmen and poor prophets, but good prophets and poor statesmen. As all the powers enumerated in the Constitution were delegated by the states, the federal government became a limited government. The states could not delegate any admiralty or maritime jurisdiction which they did not at the time possess. That which they had was no more or less than that which England implanted.

In the light of the discussion herein, one can not help but wonder to what extent Congress, with the Supreme Court to uphold it, may extend its jurisdiction within state boundaries. While the states have adjusted themselves to changed conditions, and their loss of jurisdiction along certain lines is not being openly deplored, there will come a time when to stretch rather than to amend the Constitution, in matters which involve great losses of state jurisdiction, will mean national unpleasantness. The unmistakable tendency of the times is the increase of federal jurisdiction in all matters of commerce, but in the gaining of an invisible goal, safety dictates that the spirit of the Constitutional Convention should be ever present to the jurist.


65 James Brown Scott, this JOURNAL, vol. 2, No. 1, p. 3, and see also vol. 2, No. 2, p. 444.



I. Preceding any intelligent discussion of the status of the Panama Canal regarding freedom of passage and inviolability in war, which have so generally and so loosely been spoken of as “ neutralization” even in official documents of the latest date, it will be necessary first to examine the treaty obligations of the United States under which the Canal is now under construction, and which define the powers of control over it when it shall be finished.

The latest of these is the convention concluded November 18, 1903, by the late John Hay and Mr. Bunau-Varilla, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Panama. This convention was proclaimed on February 26, 1904, after due ratifications, its title being “ Convention for the Construction of a Ship Canal.” 2

Article I guarantees the independence of Panama by the United States.

In Article II Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal. The width of the zone is ten miles, and it does not include the cities and harbors of Panama and Colon, but does include the small islands

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1 All but the fifth section of this paper was written about three and one-half years ago; that section was written about a year later. The whole is here printed substantially in its original form, and with no changes that affect the sense. In the THE AMERICAN JOURNAL OF INTERNATIONAL Law for April, 1909, a distinguished retired officer of the Army published a paper on the same general subject in which conclusions are reached quite the contrary of those herein maintained. It seems worth while to present the opposite view.point to his in order that readers may have both before them, and form their own conclusions on a matter of wide interest to the nation, and particularly to the military services. — H. S. K.

2 Compilation of Treaties in Force, 1904, p. 609.

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in the former harbor called Perico, Naos, Culebra, and Flamenco.
The article further grants
in perpetuity the use, occupation and control of any other lands and
waters outside of the zone above described which may be necessary and
convenient for the construction, maintenance, operation, sanitation and
protection of the said Canal or of any auxiliary canals or other works
necessary and convenient for the construction, maintenance, operation,
sanitation and protection of the said enterprise.

In Arti“le III

The Republic of Panama grants to the United States all the rights, power and authority

within the zone and auxiliary lands and waters mentioned in
Article II,
which the United States would possess and exercise if it were the
sovereign of the territory within which said lands and waters are located
to the entire exclusion of the exercise by the Republic of Panama of any
such sovereign rights, power or authority.
It is interesting to note the peculiar wording of these two articles,
in which Panama does not grant the territory, nor relinquish her
sovereignty over it, but grants its “ use, occupation and control”
and relinquishes the “ exercise * * * of sovereign rights, power or
authority " therein.

In Article IV Panama
grants in perpetuity to the United States the right to use the rivers,
streams, lakes and other bodies of water within its limits for navigation,
the supply of water or water power or other purposes

as far as may


necessary and convenient for the construction of the said Canal.

and protection

The words “its limits” above refer to the Republic of Panama and rot to the Canal zone alone.

In Article V Panama

grants to the United States in perpetuity a monopoly for the construction, maintenance and operation of any system of communication by means of canal or railroad across its territory between the Caribbean Sea and the Pacific Ocean.

Article VII grants to the United States the exercise, under certain circumstances, of the right of eminent domain in the cities of Panama and Colon; and the right also to enforce sanitary measures and maintain public order therein in case of necessity.

Article IX provides that the entrance ports to the canal and the waters thereof, together with the towns of Panama and Colon " shall be free for all time."

Article XIV provides for the initial compensation and, after nine years, the annual payment to be made by the United States to Panama for the rights, powers, and privileges granted in this convention.

Article XVIII reads:

The Canal, when constructed, and the entrances thereto shall be neutral in perpetuity, and shall be opened upon the terms provided for by Section 1 of Article three of, and in conformity with all the stipulations of, the treaty entered into by the Governments of the United States and Great Britain on Nevember 18, 1901.

Article XX provides that Panama shall abrogate, or procure the abrogation of, any privileges or concessions in favor of the government or citizens of a third power relative to an interoceanic means of communication that are incompatible with the terms of this convention, and which may have descended to or been assumed by the Republic of Panama.

Article XXIII reads:

If it should become necessary at any time to employ armed forces for the safety or protection of the Canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times and in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes.

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Article XXV 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 Republie of Panama will sell or lease to the United States lands adequate and necessary for naval or coaling stations on the Pacific coast and on the western Caribbean coast of the Republic at certain points to be agreed upon with the President of the United States.

The remaining articles need not be quoted for present purposes.

A consideration of the articles quoted shows that our government has:

(a) Monopoly of trans-Panama projects of communication.

(b) The engagement of Panama to ensure us that monopoly by abrogation of any privileges or concessions to the governments or citizens of any third power.

(c) Practical sovereignty over the Canal zone, excepting the cities and harbors of Colon and Panama, though no actual sovereignty is ceded in word and an annual rental is paid.

(d) Rights and privileges directly and repeatedly expressed regarding the protection of the Canal, including the right to use troops and fortify, and the acquisition of naval as well as coaling stations.

(e) To the maintenance of these objects, it guarantees the independence of Panama.

No plainer language is needed to indicate the determination of the United States to own, control, and provide for the defense of the Canal, alone and unaided, in so far as this instrument makes it possible.

But it will be noted further that the United States engages, in Article XVIII, that “the Canal, when constructed, and the entrances thereto shall be neutral in perpetuity;” and again, in Article XXV, where lands for naval or coaling stations are provided for, the words

to the end of the efficient protection of the Canal and the preservation of its neutrality

are used. The declaration of Article XVIII and the words quoted from Article XXV are of serious import, and the meaning to be ascribed to them must be determined by a consideration of the circumstances leading up to the conclusion of the convention, and of the announced policy of our government, as well as of the exact meaning of the words “neutrality” and “neutral ” in the connection used above.

Article XVIII, besides declaring the Canal to be neutral, prescribes that the Canal

shall be opened upon the terms provided for by Section I of Article three of, and in conformity with all the stipulations of, the treaty entered

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