rules. Nor is it to be forgotten that Panama has become a party to the Hay-Pauncefote treaty by its express incorporation into the treaty of November 18, 1903, between the Panaman Republic and the United States.

Instead of being guaranteed by "several powerful nations," the only guarantor of the neutrality of the Isthmus of Panama under the treaty of 1846 between the United States and New Granada (now Colombia) was the United States itself. The guaranty, with its purpose and consideration, was couched in the following terms (Article 35):

And, in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages, and for the favors they have acquired by the 4th, 5th, and 6th articles of this treaty, the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.5

The way in which the treaty of 1846 between the United States and New Granada combined the guaranty of Colombia's rights of sovereignty and property in the isthmus with the guaranty of the neutrality of that part of her territory is very suggestive in view of the course pursued by the United States in connection with the so-called "revolution" in Panama during Mr. Roosevelt's administration, in which Colombia was deprived of both her sovereignty and property in the isthmus.

The guaranty of 1846 put our sister republic in a somewhat anomalous condition. New Granada did not agree to remain neutral in any war that might arise in Latin-America, or elsewhere, or to refrain from waging aggressive warfare herself. Of course, she retained the right of selfdefense, but she would doubtless have looked to the United States under the treaty of 1846 for protection and intervention in case of trouble with a foreign Power. Does the Panaman Republic, as the successor of Colombia on the isthmus, succeed to this guaranty of neutrality? Or is the Canal Zone, in this respect, to be distinguished from all the remain

5 Malloy's Treaties and Conventions, Vol. I, p. 312.

ing territory of the Panaman Republic? Nothing is said on this subject in our treaty of November 18, 1903, with Panama, whose independence, however, is guaranteed by the United States, in that treaty, while the Canal Zone, of which the United States has thereby acquired "perpetual control," or rather, the canal itself, and its entrances, are neutralized by Article XVIII in the following unequivocal terms:

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 III of and in conformity with all the stipulations of the treaty entered into by the Governments of the United States and Great Britain on November 18, 1901.6

But in the proposed treaty with Colombia, which was signed on January 22, 1903, by Mr. John Hay and Mr. Thomas Herran, and shortly afterwards ratified by the Senate of the United States but subsequently rejected by the Colombian Congress, it was provided, in Article III, that

all the stipulations contained in Article 35 of the treaty of 1846-48 between the contracting parties shall continue and apply in full force to the cities of Panama and Colon and to the accessory community lands and other property within the said zone, and the territory therein shall be neutral territory and the United States shall continue to guarantee the neutrality thereof and the sovereignty of Colombia thereover, in conformity with the above mentioned Article 35 of said treaty.?

It was the isthmus and not merely the Canal Zone that was neutralized by the treaty of 1846 between the United States and New Granada. Speaking in the Senate, on a bill making an appropriation for the transportation of the United States mails by railroad across the Isthmus of Panama, Mr. Webster said:

The basis of the whole, Sir, is our treaty with New Granada, which was ratified by this body and proclaimed in June, 1848. Looking to the security of a mode of communication across the continent at this Isthmus, this government took great pains to obtain the right from the government of New Granada, and by the treaty it is stipulated that whatsoever communication should be made across the Isthmus should be open to the

• Malloy's Treaties and Conventions, Vol. II, pp. 1354-1355.

7 Senate Ex. K, 57th Congress, 2d Session, January 24, 1903 (injunction of secrecy removed), p. 5.

government of the United States and citizens of the United States upon as good terms as to the citizens of New Granada itself.

This government looking upon this stipulation as a benefit obtained, a boon conceded by the government of New Granada, as an equivalent for this consideration, entered, on its part, into an engagement to protect and guarantee and defend the neutrality of this whole Isthmus. This will be seen by reference to the thirty-fifth article of the treaty, which will be found in the volume of the laws of the last session. It is there very distinctly stated. There is no question about it. We are under treaty obligations to maintain the neutrality of this isthmus and the authority of the government of New Granada over it. (V, Webster's works, 317.)

So lately as 1903, two years subsequent to the Hay-Pauncefote treaty, the United States showed its willingness to co-operate with Colombia in the administration of the canal by the following provision in the same article of the proposed treaty:

In furtherance of this last provision [Article III supra] there shall be created a joint commission by the Governments of Colombia and the United States that shall establish and enforce sanitary and police regulations.8

In view of the recent contention that the Hay-Pauncefote treaty has been made void or voidable by the alleged change in the sovereignty of the zone, under the treaty of November 18, 1903, between the United States and Panama, giving the former "perpetual control" and making it (as contended) "sovereign of the territory," it is interesting to read Article IV of the proposed treaty of January 22, 1903, with Colombia (ratified as it was by the United States Senate but rejected by the Colombian Congress):

The rights and privileges granted to the United States by the terms of this convention shall not affect the sovereignty of the Republic of Colombia over the territory within whose boundaries such rights and privileges are to be exercised.

The United States freely acknowledges and recognizes this sovereignty and disavows any intention to impair it in any way whatever or to increase its territory at the expense of Colombia or of any of the sister republics in Central or South America, but on the contrary, it desires to strengthen the power of the republics on this continent, and to promote, develop and maintain their prosperity and independence.9

8 Senate Ex. K, 57th Congress, 2d Session, January 24, 1903 (injunction of secrecy removed), p. 6.

Notwithstanding this recognition and reservation of the titular sovereignty of Colombia in the proposed treaty, one of the objections which led to its defeat in the Colombian Congress was that Colombia would lose its actual sovereignty in the isthmus and that the real sovereign would be the United States.

But Article IV of the Hay-Pauncefote treaty guards the neutralization of the canal and the other provisions of the treaty from any impairment by a change in the territorial sovereignty of the zone (even if it should subsequently become territory of the United States) in the following terms:

It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before mentioned canal shall affect the general principle of neutralization or the obligation of the high contracting parties under the present treaty.10

It may be interesting and instructive at this juncture, to recall the position and utterances of the Government of the United States when the Monroe Doctrine was still in its youth, in regard to the nature of the proposed undertaking and the desirableness of inducing European governments to join in the guaranty of the neutrality of the isthmus as embodied in the treaty of 1846, either by a similar agreement with Colombia (then New Granada) or directly with the United States.

In December, 1849, Mr. Clayton, Secretary of State, instructed Mr. Foote, United States minister at Bogota, to urge upon the New Granadian Government to take measures to obtain a similar guaranty of neutrality from Great Britain.

The guaranty of Great Britain [said Mr. Clayton] is necessary for the security of the capital to be invested in the railroad and is of great and obvious importance to the United States.

At the same time, Mr. Clayton instructed Mr. Lawrence, United States minister at London, to co-operate with the New Granadian minister at that capital,

in obtaining from the British Government a guaranty of the neutrality of the Isthmus of Panama similar to that contained in Article 35 of the treaty of 1846.

10 Malloy's Treaties and Conventions, Vol. I, p. 783.

Mr. Lawrence was also authorized, in case he ascertained that the British Government would not enter into such a treaty with New Granada, to sound Lord Palmerston as to the disposition of his government to conclude a treaty with the United States for the same purpose. 11

Instructions similar to those sent to Mr. Lawrence were also sent by Mr. Clayton to Mr. Rives, our minister at Paris, January 26, 1850, with reference to possible negotiations to this end with the Government of France.

President Polk had said in his message of February 10, 1847, transmitting the treaty of 1846 to the Senate, for the advice and consent of that body, that

it will [would] constitute no alliance for any political object but for a purely commercial purpose, in which all the navigating nations of the world have a common interest;

and he also had made the following observations, which like the remark just cited, are worthy of our remembrance and consideration to-day:

In entering into the mutual guarantees proposed by the 35th article of the treaty, neither the Government of New Granada nor that of the United States has any narrow or exclusive views. The ultimate object, as presented by the Senate of the United States in their resolution [of March 3, 1835] to which I have already referred, is to secure to all nations the free and equal right of passage over the isthmus.

If the United States, as the chief of the American nations, should first become a party to this guarantee [of the neutrality of the isthmus], it cannot be doubted, indeed it is confidently expected by the Government of New Granada, that similar guarantees will be given to that republic by Great Britain and France. * The interests of the world at stake are so important that the security of this passage between the two oceans can not be suffered to depend upon the wars and revolutions which may arise among different nations.12

* *

This presidential message is of peculiar interest in connection with the pending discussion of the Panama Canal Act, and the protest of Great Britain against its discriminating provisions; for nations are moral persons and have a continuing personality and responsibility from one generation to another.

11 Moore's Inter. Law Dig., III, p. 10.

12 Richardson's Presidents' Messages, Vol. IV, pp. 511-513.