without exception or discrimination should be able to use, subject of course to all rights of the owner of the canal including that of charging reasonable tolls. Among the earliest declarations of policy by the United States Government, perhaps the earliest, was an intimation that the work should be accomplished, not by "the separate and unassisted efforts of any one Power" but "by common means and united exertions"-whether of all civilized Powers or of American Powers exclusively is not perhaps clear. Secretary Clay's idea that the canal be built by a combination of the Powers interested seems never to have taken any real root.

This first phase was succeeded by the view that the canal should be built by the state owning the route of the canal or by a company or association having from the state the necessary concessions for that purpose. The United States was to assist by appropriate guaranties, and by the treaty with New Granada of 1846, in consideration of New Granada's granting citizens of the United States equal treatment with citizens of New Granada as respects any mode of transit across the isthmus, the United States guarantied the perfect neutrality of the isthmus and also New Granada's rights as sovereign and owner of the isthmus.

A third phase of American opinion and policy appears four years later in a treaty then made with Great Britain. The United States. was moved to enter into it by various considerations; by the improbability of the canal being built by the territorial sovereign; by Great Britain's claim of a protectorate over the eastern terminus of the Nicaraguan route, then universally accepted as the most eligible route; and by the natural and reasonable belief that financiers would more readily engage in the canal enterprise if Great Britain joined the United States in becoming sponsor for the safety and neutrality of the canal and for its equal use by all nations. The outcome was the famous Clayton-Bulwer Treaty, the essential features of which are these:

First, a canal built by the state owning the canal route or by its concessionaires.

Second, a compact by the parties that neither will build or take part in building the canal, directly or indirectly, nor obtain nor maintain exclusive control over it.

Third, a specific agreement as to the modes in which both parties may aid in the construction of the canal-as by each using its influence

for such construction with local governments and for the establish ment of a free port at each end of the canal, and by each undertaking to protect the canal while in process and after completion, to guaranty its neutrality, and to thus safeguard the capital invested.

Fourth, an undertaking by each to enter into contracts with Central American states with the view to carry out the great purpose of the treaty, to wit, the construction of a ship canal between the two oceans "for the benefit of mankind and on equal terms to all"-and for the purpose of protecting the same.

Fifth, enjoyment by the citizens or subjects of each party of the same "rights or advantages in regard to commerce or navigation through the canal"-charges and conditions of traffic to be approved as just or equitable by the governments of the contracting parties.

Sixth, an invitation to all friendly states to join in contributing to the construction of the canal, coupled with the declaration that the equal terms and conditions secured to the citizens or subjects of the contracting parties shall be enjoyed by the citizens and subjects of every other state "which is willing to grant thereto [to the canal] such protection as the United States and Great Britain engage to afford."

The two notable features of this phase of American canal policy are, first, the self-denying ordinance preventing the United States or Great Britain from building or controlling the canal, and, second, the clear recognition of the right of a state constructing on its own territory an artificial water-way like the canal to dictate the conditions of its use as by permitting the use to some parties on condition of their undertaking to protect the canal and denying its use to other parties not willing to undertake such protection.

The next phase of American canal opinion and policy was foreshadowed as early as 1869, when Secretary Seward officially expressed the "very deliberate conviction" (1) that "henceforth neither any foreign government nor the capitalists of any foreign nation, except the Government and capitalists of the United States, will ever undertake in good faith to build a canal across the Isthmus of Darien"; (2) that "the neutrality most desirable for Colombia is to be found in a combination of the power, authority, and influence of the United States of America and the power, authority, and influence of the United States of Colombia to protect the canal and make it productive of the largest commercial benefit to all nations"; and (3) that "not only would the United States be unwilling to enter into ant

entangling alliance with other foreign nations for the construction and maintenance of a passage through the isthmus, but also that the idea that other commercial Powers could and would consent to enter into a combination with the United States of America for that purpose, is impracticable and visionary." About the same time a convention was actually negotiated at Bogota by which the United States was to build the canal. On various grounds not necessary to state, the convention failed of ratification at Washington.

Meanwhile, and before Secretary Seward's prophetic words were generally accepted as verity, there ensued the de Lesseps attempt to construct the canal over the Panama route. The final abandonment of that attempt in 1889 forced upon the country the conviction that Secretary Seward was right and that if the canal was to be built it must be built by the United States, both because the United States was the only American Power with the necessary resources and because the construction and control of the canal by any European Power would conflict with our settled policy respecting European interference in American affairs. President Hayes, in a special message to Congress in March, 1880, justly interpreted American sentiment by declaring "The policy of this country is a canal under American control. The United States cannot consent to the surrender of this control to any European Power or to any combination of European Powers." He condensed the whole argument for the policy into the fewest words by adding that the canal would be "virtually a part of the coast line of the United States." President Cleveland, in his message of December, 1885, was equally explicit as to the inadmissibility of any control of the canal by an European Power.

The final phase of American opinion and policy being that the United States must build and control the canal and that any share in its construction or control by any European Power was to be excluded, the first step to be taken obviously was the removal of the obstacle presented by the Clayton-Bulwer Treaty. That object was meant and thought to be attained by the Hay-Pauncefote Treaty of 1901. It clearly permits the United States to build the canal. Does it also debar Great Britain from any control of the canal except such as results from the express provision that the canal shall be open for use to Great Britain and all other nations on terms of entire equality? The answer is to be found in the terms of the treaty itself interpreted according to their true intent. They can be so interpreted only by

reverting to the previous relations of the parties to the canal enterprise, to the new relations to the enterprise the parties meant to assume, and to the objects each had in view in making the treaty.

1. The Hay-Pauncefote Treaty of 18 November, 1901, it is to be noted, does not merely authorize the United States to build the canal through the territory of some other Power, though such would have. been a possible construction of the rejected Hay-Pauncefote Treaty of 5 February, 1900. But the treaty of 18 November, 1901 adds a clause not found in the February treaty to the effect that no change of territorial sovereignty of the country or countries traversed by the canal shall affect the obligations of the parties to the treaty-thus assenting in advance to the acquisition by the United States of the territory needed for the canal. Hence, since the United States did afterwards acquire the canal zone, the terms of the November HayPauncefote Treaty apply to the case of an artificial water-way constructed by a state on its own territory.

2. It is to be further noted that, by way of asserting the exclusive control of the canal by the United States and eliminating any semblance of control by other Powers, the November Hay-Pauncefote Treaty omits Article III of the February treaty by which other Powers were to have notice of the treaty and be invited to adhere to it.

3. The facts being, then, that the United States has rightfully built the canal through territory of its own; that, besides having become the owner of the canal route, the treaty expressly accords to the United States all the rights incident to construction; and that, in undertaking the canal as an United States enterprise, the United States did so with. the manifest purpose of excluding all foreign control beyond that resulting from the stipulation for equality of terms to all users of the canal-what is there in the language of the treaty to justify the claim that the United States has made a further submission to foreign control by a stipulation which prevents it from allowing the use of the canal by its own vessels or those of its nationals on any terms it chooses to fix?

4. The one provision possible to be relied upon for that purpose is Rule 1 of Article III, declaring that "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 .."—and the single point is, are the words "all nations" inclusive or exclusive of the United States?

It seems difficult to successfully contend that the United States is included.

(a) The treaty is a contract by which the proprietor of a canal fixes the terms upon which it grants the use of the canal to its customers.

(b) It was needed for that purpose only; it was not needed to fix the terms upon which the United States and its nationals--its cestui que trust-should use the canal, because its use without tolls or otherwise as the United States might choose, is a necessary incident of its ownership of the canal.

It cannot reasonably be argued that, in fixing terms for the use of its canal by customers, the United States looked upon itself as one of the customers.

(c) The words under construction are in substance the first of a set of six rules adopted by the United States as the basis of the neutralization of the canal.

But the other five certainly apply only to parties other than the United States, so that there is the strongest reason for holding that the first of them is to be given a like application.

(d) And, if the British construction be correct, instead of liberating the United States from all foreign control of the canal and from all duties to foreign Powers in respect of its use-except not to discriminate between them-the Hay-Pauncefote Treaty compels the United States to reverse its established policy and to devise a plan for subsidizing its own vessels in order that they may have such free or other use of the canal as the United States may decide to be demanded by United States interests.

(e) The claim sometimes made that, by building and owning the canal the United States engages in a public calling and thereby undertakes to serve all comers without discrimination and at a reasonable rate, would seem to have no application to the present case. The principle affects only the users of the public work and only prescribes entire equality as between them-it in no way prevents the owner of the work, or those for whom it holds the-work in trust, from using it in any way and to any extent that the legal or beneficial owner or owners may determine.

Besides, so far as international law on the subject can be regarded as settled, the rule is that "While a natural thoroughfare, although wholly within the dominion of a government, may be passed by com-,