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 MOORE 
 
 INTEROCEANIC CANAL 
 
 ANDTHEHAY-PAUNCEFOlt 
 
 TREATY
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 The Interoeeanie Canal 
 
 and the 
 
 Hay-Pauneefote Treaty 
 
 JOHN BASSETT MOORE 
 
 Professor of International Law and Diplomacy, Columbia University, 
 formerly Assistant Secretary of State of the United States and Secretary 
 and Counsel to the United States Peace Commission at Paris 
 
 REPRINTED FROM THE NEW YORK TIMES 
 
 March 4, igoo 
 
 WASHINGTON 
 I 900
 
 THE INTEROCEANIC CANAL 
 
 AND THE 
 
 HAY-PAUNCEFOTE TREATY 
 
 JOHN BASSETT MOORE 
 
 Professor of International Law and Diplomacy, Columbia University, 
 formerly Assistant Secretary of State of the United States and Secretary 
 and Counsel to the United States Peace Commission at Paris 
 
 KKPRINTKl) FROM THE NEW YORK TIMES 
 
 March 4, igoo 
 
 W A S H 1 N Ci r c ) N 
 
 I (JOO
 
 The Interoceanic Canal and the 
 Hav-Pauncefote Treatv. 
 
 That the treaty signed at Washington February 5, 1900, 
 by Mr. Hay and Lord Pauncefote, with a view "to facili- 
 tate the construction of a ship canal to connect the Atlan- 
 tic and Pacific oceans," has attracted general attention 
 not only in the United States and Great Britain, but in 
 other countries as well, is a circumstance neither singu- 
 lar nor hard to explain. The treaty, in the first place, 
 relates to a subject of world-wide interest, in which all 
 nations may be said to have some concern, while that of 
 maritime powers generally is direct and immediate. In 
 the second place, it seems to mark a distinct advance 
 toward the accomplishment of a work which, though long 
 ' postponed, has been so persistently cherished that it has 
 ■^been called "the dream of the ages." Thirdly, it repre- 
 '"^ents a notable achievement of American diplomacy, in 
 that, while it removes all obstacles to the construction, 
 ownership, and operation of the canal by the United 
 States, it secures for the contemplated water way itself, 
 by a comprehensive neutralization, and for "the plant, 
 establishments, and buildings," and "all works" neces- 
 sary to its "construction, maintenance, and operation," a 
 "complete immunity" from injury or attack either in war 
 or in peace. 
 
 It is not my purpose nor my desire to discuss the pend- 
 ing treaty in a spirit of partisanship. It has been severely 
 criticised, and it has been ably defended, and in some in- 
 stances the discussions have developed errors which it is 
 proper to ascribe to a lack of information rather than to 
 
 3
 
 an intention to misrepresent. Nor do I assume that all 
 men can be brought to take one view of the questions at 
 issue. I say "questions," although there is, in reality, 
 but one question at issue, and that is whether the exclu- 
 sive control of the canal for purposes of war is so essen- 
 tial to our national safety that we should discard the 
 advantages that would accrue from its neutralization and 
 devote ourselves to the accomplishment of the opposite 
 policy. And when I speak of the "accomplishment " of 
 the opposite policy, I refer to the removal of existing dip- 
 lomatic obstacles by negotiation and mutual accommo- 
 dation, as well as to the acquisition by the same means 
 of the necessary jurisdictional rights in countries now 
 independent. While I am one of those who believe that 
 the physical power of the United States is practically 
 unlimited, I do not assume that the United States will, in 
 sheer wantonness of power, disregard solemn treaties and 
 violate the rights of independent states. Besides, there 
 seems to be a certain incongruity between that just confi- 
 dence which we feel in our power and the extreme appre- 
 hensions sometimes expressed for our safety. 
 
 THE PRINCIPLE OF NEUTRALIZATION. 
 
 In order to comprehend the import of the stipulations 
 of the pending treaty, it is necessary at the outset to un- 
 derstand the significance of the term "neutralization" or 
 "neutrality " as therein employed. The term "neutral- 
 ity," in its ordinary sense, refers to a state of hostilities 
 and denotes the attitude and the duty of a noncombat- 
 ant or neutral power toward the parties to the conflict. 
 It signifies not only impartiality, so far at least as con- 
 duct is concerned, but also abstention from acts which 
 may aid either belligerent in its contest with the other. 
 Such is the subjective sense of the term. When used ob- 
 jectively with reference to an interoceanic canal, it em- 
 braces belligerent as well as neutral powers, and, while 
 pointedly referring to the former, defines the attitude and 
 the duty of both. It signifies that the thing is "neutral-
 
 ized;" that it is to be treated as "neutral;" and therefore 
 that it is not to be made the object of attack, nor distinc- 
 tively employed as the means of hostilities. 
 
 Two plans of neutralization have been proposed: first, 
 that of excluding the ships of war of all belligerents; and, 
 second, that of permitting their passage without discrim- 
 ination. The former plan has not prevailed, and for va- 
 rious reasons. The primary conception of an interoceanic 
 canal is that of a highway always accessible, and nations 
 are disinclined to approach the subject on any other basis. 
 It is foreseen that, when once the canal was opened, the 
 world would soon become so habituated to and dependent 
 upon its use that to allow it to be closed at the behest of 
 any one power might prove to involve inconveniences alto- 
 gether insupportable. Moreover, as the construction of 
 such a work would require the expenditure of a great 
 amount of money, the general exclusion of belligerent 
 men-of-war would diminish the possibility of securing re- 
 imbursement by means of tolls. Finally, there is no uni- 
 versal criterion by which the existence or nonexistence of 
 a state of war can be determined. Not only may a state 
 of war exist without a prior declaration, but the question 
 whether war exists at a particular moment may depend 
 upon the unexpressed intention of the parties as well as 
 upon their acts. Under such conditions the attempt to 
 exclude the men-of-war of belligerents would involve the 
 exercise of a wide discretion and of a large measure of 
 arbitrary power, and, being thus indefinite as to its 
 grounds, it might prove to be uncertain in its operation, 
 unjust and injurious in its effects, and provocative of jeal- 
 ousies, suspicions, and dangerous quarrels. 
 
 The second plan, of keeping the canal open at all times, 
 without distinction as to vessels, has therefore been gen- 
 erally approved as the only one that can be relied on to 
 assure complete "neutrality" and immunity. As such it 
 was made the basis of the convention of October 29, 1888, 
 for the free navigation of the Suez Canal, and is adopted 
 as the basal principle of the pending treaty.
 
 Equality of tolls has also been treated as a feature, or 
 perhaps rather as a condition, of neutralization. Little 
 need be said on this subject, since a discriminative policy, 
 even if it did not lead to the immediate building of another 
 canal, would merely provoke retaliation in some other 
 form and prove in the end to be impracticable. 
 
 OUR HISTORIC POLICY. 
 
 The principle of neutralization is a product of modern 
 civilization and is one of the means by which nations have 
 endeavored to secure the largest possible freedom of navi- 
 gation. By those great masters of government and of 
 jurisprudence, the Romans, the navigation of waters was 
 held to be free to all. "By natural law," say the Insti- 
 tutes of Justinian, "the following things are common to 
 all: The air, flowing water, and the sea. * * * \\\ 
 rivers and ports are public." ("Et quidem natural! jure 
 communia sunt omnium haeo: aer, aqua fluens et mare. 
 * * * Flumina autem omnia et portus publica sunt. " 
 Institutes, Lib. II, I, sees. 1-2.) In the centuries of war- 
 fare and confusion that followed the fall of the Roman 
 Empire, this great principle gradually ceased to be ob- 
 served. The practice of piracy and the Mussulman con- 
 quests in the west, together with other causes, contributed 
 to introduce a system under which particular sovereign 
 princes assumed to control and monopolize the navigation 
 not only of waters within their own dominions, but also 
 of the open seas. Under these conditions peaceful inter- 
 course was almost unknown. Commerce and warfare 
 were practically synonymous. The system of exclusion 
 and monopoly became intolerable, and it was overthrown. 
 The United States entered the family of nations in time 
 to contribute powerfully to this result; and, as the advo- 
 cate of the freedom of the seas, it conceived of an inter- 
 oceanic canal between the Atlantic and the Pacific as a 
 great common highway of nations, which should be open 
 on equal terms to all. Perhaps there are no other Amer- 
 ican statesmen who are at once so prominently identified
 
 with the two doctrines of the freedom of these continents 
 from European domination and the freedom of the seas 
 as John Ouincy Adams and Henry Clay; and, under the 
 Presidency of the former, Mr. Clay, as Secretary of State, 
 referring to the subject of "a cut or canal for purposes 
 of navigation somewhere through the isthmus that con- 
 nects the two Americas, to unite the Pacific and Atlantic 
 oceans," said: 
 
 If the work should ever be executed so as to admit of the passage of 
 sea vessels from ocean to ocean, the benefits of it ought not to be ex- 
 clusively appropriated to any one nation, but should be extended to 
 all parts of the globe upon the payment of a just compensation or 
 reasonable tolls. 
 
 Nine years later, the subject was taken up by the 
 United States Senate, and on March 3, 1835, that body 
 unanimously adopted the following resolution: 
 
 Resolved, That the President of the United States be respectfully re- 
 quested to consider the expediency of opening negotiations with the 
 governments of other nations, and particularly with the governments 
 of Central America and New Granada, for the purpose of effectually 
 protecting, by suitable treaty stipulations with them, such individuals 
 or companies as may undertake to open a communication between the 
 Atlantic and Pacific oceans by the construction of a ship canal across 
 the isthmus which connects North and South America, and of securing 
 forever, by such stipulations, the free and equal right of navigating 
 such canal to all such nations, on the payment of such reasonable tolls 
 as may be established to compensate the capitalists who may engage 
 in such undertaking and complete the work. 
 
 In May, 1835, President Jackson, on the strength of 
 this resolution, appointed Mr. Charles Biddle to make an 
 investigation of transit routes. Mr. Biddle, wlio was 
 directed to proceed first to Lake Nicaragua, went instead 
 to New Granada, and obtained from that Government an 
 exclusive grant to citizens of the United States, by which 
 it was provided that two-thirds of the stock created under 
 it should be "the property of Charles Biddle and such 
 citizens of the United States as he might associali- with 
 him." Mr. Biddies proceedings were wholly disavowed. 
 
 Four years later, in 1839, the canal question was brought
 
 8 
 
 before the House of Representatives on a memorial of 
 merchants of New York and Philadelphia, and was the 
 subject of an exhaustive report. The House then adopted, 
 by a unanimous vote, a resolution closely following that 
 of the Senate, and requesting the President — 
 
 To consider the expediency of opening or continuing negotiations 
 with the governments of other-nations, and particularly with those the 
 territorial jurisdiction of which comprehends the Isthmus of Panama, 
 and to which the United States have accredited ministers or agents, for 
 the purpose of ascertaining the practicability of effecting a communi- 
 cation between the Atlantic and Pacific oceans by the construction of 
 a ship canal across the Isthmus, and of securing forever, by suitable 
 treaty stipulations, the free and equal right of navigating such canal 
 by all nations. 
 
 On December 12, 1846, the United States concluded 
 with New Granada (now the Republic of Colombia) a 
 treaty which is still in force. By Article XXXV of this 
 treaty, "the Government of New Granada guarantees to 
 the Government of the United States that the right of 
 way or transit across the Isthmus of Panama upon any 
 modes of communication that now exist, or that may here- 
 after be constructed, shall be open and free to the Gov- 
 ernment and citizens of the United States. "' On the other 
 hand, "the United States guarantee, positive!}' and effica- 
 ciously, 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." 
 
 These stipulations have sometimes been cited as an 
 example of the assumption by the United States of an ex- 
 clusive guaranty with a view to the exclusive control of 
 any future canal. Such a construction can only return to 
 plague those who suggest it. Not only is it at variance 
 with the guaranty of "perfect neutrality" and the ex-
 
 press declaration with which that guaranty is accompa- 
 nied, but it is contradicted by the record. The object of 
 the stipulations was clearly set forth by President Polk, 
 who, in submitting the treaty to the Senate, said : 
 
 In entering into the mutual guaranties proposed by the thirty-fifth 
 article of the treaty, neither the Government of New Granada nor 
 that of the United States has any narrow or exclusive view. The ulti- 
 mate 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 Isth- 
 mus. If the United States, as the chief of the American nations, 
 should first become a party to this guaranty, it can not be doubted — 
 indeed, it is confidently expected by the Government of New Gra- 
 nada — that similar guaranties will be given to that Republic by Great 
 Britain and France. Should the proposition thus tendered by rejected, 
 we may deprive the United States of the just influence which its ac- 
 ceptance might secure to them, and confer the glory and benefits of 
 being first among the nations in concluding such an arrangement 
 upon the Government either of Great Britain or France. That either 
 of these Governments would embrace the offer can not well be doubted ; 
 because there does not appear to be any other effectual means of se- 
 curing to all nations the advantages of this important passage, but the 
 guaranty of great commercial powers that the Isthmus shall be neu- 
 tral territory. 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. 
 
 It was in conformity with these unvarying precedents 
 that the treaty between the United States and Great Brit- 
 ain, commonly called the Clayton-Bulwer Treaty, signed 
 at Washington April 19, 1850, was concluded and ratified. 
 The treaty related, first, "to any means of communica- 
 tion by ship canal which may be constructed between the 
 Atlantic and Pacific oceans by the way of the River San 
 Juan de Nicaragua, and either or both of the lakes of 
 Nicaragua or Managua," and, second, "to any other prac- 
 ticable communications, whether by canal or railway, 
 across the isthmus which connects North and South 
 America." As to the first — the Nicaragua Canal — it stip- 
 ulated that neither Government would "ever ol)tain or 
 maintain for itself any exclusive control over the said ship
 
 lO 
 
 canal," or "ever erect or maintain any fortifications com- 
 manding the same, or in the vicinity thereof." As to the 
 second, it declared: 
 
 The Governments of the United States and (ireai Britain, having 
 not only desired, in entering into this convention, to accomplish a 
 particular object, but also to establish a general principle, they hereby 
 agree to extend their protection, by treaty stipulations, to any other 
 practicable communications, whether by canal or railway, across the 
 isthmus which connects North and South America, and especially to 
 the interoceanic communications, should the same prove practicable, 
 whether by canal or railway, which are now proposed to be established 
 by way of Tehuantepec or Panama. 
 
 In 1856 the Isthmus of Panama was the scene of grave 
 disturbances. The transit by the Panama Railway, which 
 had then been completed, was seriously menaced, and on 
 one occasion it was interrupted by mob violence. Acting 
 in the spirit of the treaty of 1846 and of the Clayton- 
 Bulwer Treaty, the Administration of President Pierce 
 sent two commissioners to New Granada to propose the 
 creation of an independent, neutral district on the Isth- 
 mus, with a view to the security of the transit route. 
 "It is not designed," said Mr. Marcy, then Secretary of 
 State, "to secure any exclusive advantages to the United 
 States. To remove all objections of this sort an article is 
 proposed securing the common use of the Panama route 
 to all foreign nations." By this article it was stipulated 
 that "the said road or route shall be open to the common 
 use of all nations which shall, by treaty stipulations, agree 
 to regard and treat the district of country aforesaid at all 
 times as neutral," and that the contracting parties should 
 "invite foreign nations to join in the mutual guaranty of 
 the neutrality of the said country, of the municipal gov- 
 ernments aforesaid, and of the unobstructed use of the 
 said Panama Railroad, or any other road or route which 
 may be established across the Isthmus within the limits of 
 the territor}' before designated." 
 
 Mr. Cass, while Secretary of State in 185S, declared that 
 "what the United States wants in Central America next to
 
 1 1 
 
 the happiness of its people is the security and neutrality 
 of the interoceanic routes which lead through it." 
 
 In June, 1862, the Colombian Minister in Washington 
 invoked the interposition of the United States for the pro- 
 tection of the Isthmus of Panama against the revolutionary 
 chief Mosquera. At that time the United States was oc- 
 cupied with its own civil war, and Mr. Seward, with a 
 view to redeem the pledge of "perfect neutrality" under 
 the thirty-fifth article of the treaty of 1846, directed the 
 Ministers of the United States at London and Paris to 
 confer with the Governments to which they were respec- 
 tively accredited in regard to action by the United States, 
 either alone or jointly, "in guaranteeing the safety of the 
 transit and the authority of the Granadian Confederation, 
 or either of these objects. " "This Government," declared 
 Mr. Seward, "has no interest in the matter different from 
 that of other maritime powers. It is willing to interpose 
 its aid in execution of its treaty, and for the benefit of all 
 nations." 
 
 While Mr. Seward was still Secretary of State, the 
 United States concluded with Nicaragua a treaty contain- 
 ing stipulations similar to those of the treaty of 1846 with 
 New Granada. The treaty with Nicaragua, which is com- 
 monly known as the Dickinson-Ayon Treaty, was signed 
 June 21, 1867, and, having been duly approved by both 
 Governments, the ratifications were exchanged at Mana- 
 gua June 20, 1868. It is still in force. By Article XI\'. 
 Nicaragua grants "to the United States and to their citi- 
 zens and property the right of transit between the At- 
 lantic and Pacific oceans through the territory of the 
 Republic on any route of communication, natural or arti- 
 ficial, whether by land or water," on the same terms as it 
 should be enjoyed by Nicaragua and its citizens, "the 
 Republic of Nicaragua, however, reserving its rights of 
 sovereignty over the same." By the next article, the 
 United States "agree to extend their protection to all 
 such routes of communication as aforesaid, and to guar- 
 antee the neutralitv and innocent use of the same. Thev
 
 12 
 
 also agree to employ their influence with other nations to 
 induce tliem to guarantee such neutrality and protection." 
 It is evident that those who have charged Mr. Hay with 
 proposing to give away a right of exclusive control of the 
 Nicaragua Canal, granted us by Nicaragua itself, with 
 the implied concurrence of Great Britain and other powers, 
 under the Dickinson-Ayon Treaty, either have not read 
 essential stipulations of that treaty or else have not seen 
 fit to quote them. 
 
 In the closing year of President Grant's Administra- 
 tion another step was taken toward the final adjustment 
 of the canal question on the lines of perfect neutraliza- 
 tion. As appears by a circular of Mr. Fish, then Secre- 
 tary of State, to United States ministers, of February 28, 
 1877, a draft treaty was prepared, "to which it was pro- 
 posed to obtain the accession of the principal maritime 
 powers." The negotiations failed owing to certain views 
 of Nicaragua, which were neither satisfactory to the 
 United States nor calculated to obtain the "cooperation" 
 of those powers. By the draft treaty, every power be- 
 coming a party to its stipulations and guaranties" was 
 "at all times, whether in peace or war," to have "the 
 right of transit " through the canal when constructed, as 
 well as "the benefit of the neutral waters at the end 
 thereof for all classes of vessels entitled to fly their re- 
 spective flags, with the cargoes on board, on equal terms 
 in every respect as between each other;" and "the vessels 
 of war and other national vessels " of such powers were to 
 have "the right of transit through the canal." 
 
 December i, 1884, Mr. Frelinghuysen, then Secretary 
 of State, and Gen. Joaquin Zavala, ex-President of Nica- 
 ragua, signed at Washington a convention by which the 
 United States engaged to build a canal at its own cost, 
 and with that view entered into a "perpetual alliance" 
 with Nicaragua and agreed "to protect the integrity of 
 the territory of the latter." While the convention pro- 
 vided for "equal" tolls for the vessels of "all nations" 
 (except vessels of the contracting parties engaged in the
 
 13 
 
 coasting trade), and contained no stipulation for the for- 
 tification of the canal, yet it did not provide for its neu- 
 tralization. It was submitted to the Senate December lo, 
 1884. It had not been approved by that body when, in 
 the following March, President Cleveland withdrew it for 
 reexamination. Referring to this act in his annual mes- 
 sage of December, 1885, he said: 
 
 Whatever highway may be constructed across the barrier dividing 
 the two greatest maritime areas of the world must be for the world's 
 benefit, a trust for mankind, to be removed from the chance of domi- 
 nation by any single power, nor become a point of invitation for hos- 
 tilities or a prize for warlike ambition. An engagement combining 
 the construction, ownership, and operation of such a work by this 
 Government, with an offensive and defensive alliance for its protec- 
 tion, with the foreign state whose responsibilities and rights we would 
 share, is, in my judgment, inconsistent with such dedication to uni- 
 versal and neutral use, and would, moreover, entail measures for its 
 realization beyond the scope of our national polity or present means. 
 
 The lapse of years has abundantly confirmed the wisdom and fore- 
 sight of those earlier Administrations which, long before the condi- 
 tions of maritime intercourse were changed and enlarged by the 
 progress of the age, proclaimed the vital need of interoceanic transit 
 across the American isthmus and consecrated it in advance to the 
 common use of mankind by their positive declarations and through 
 the formal obligation of treaties. 
 
 The treaty signed by Mr. Hay and Lord Pauncefote on 
 the 5th of February and transmitted by President McKin- 
 ley to the Senate on the same day provides: 
 
 1. The canal shall be free and open, in time of war as in time of 
 peace, to the vessels of commerce and of war of all nations on terms 
 of entire equality, so that there shall be no discrimination against any 
 nation or its citizens or subjects in respect of the conditions or charges 
 of traffic or otherwise. 
 
 2. The canal shall never be blockaded, nor shall any right of war be 
 exercised nor any acts of hostility be committed within it. 
 
 In view of what has been disclosed, it is supertluous to 
 add that, no matter what our future policy may be, these 
 stipulations embody our historic policy in respect of the 
 interoceanic canal.
 
 H 
 
 THE IDEA OF AMERICAN CONTROL. 
 
 The idea of control by the United States, not in the 
 sense of ownership or management, but in that of opposi- 
 tion to neutralization, seems to have originated with Sen- 
 ator Douglas. It was at the time suggested, with a 
 facetiousness more apparent than real, that he took this 
 l^osition because it was the -only one by the assumption of 
 which he could put himself in opposition to all other 
 Presidential aspirants, including those of both political 
 parties, and thus obtain an opportunity to kill them all off 
 at one stroke. 
 
 The idea of American control was put forward thirty 
 years later by President Hayes and by Mr. Evarts, as 
 Secretary of State, but in terms that do not define what 
 was meant b}^ it, on the occasion of the granting of the 
 concession for the Panama Canal by the Colombian Gov- 
 ernment to Mr. Lucien N. B. Wyse, as the representative 
 of the International Interoceanic Canal Association, com- 
 mionly called the French Company. This concession, 
 however, contained clauses which were not only exclusive 
 in their nature, but which also affected the rights and 
 obligations of the United States under the treaty with 
 New Granada in 1846. 
 
 It was under these circumstances that President Hayes 
 said : 
 
 It is the right and duly of the United States to assert and maintain 
 such a supervision and authoritj^ over any interoceanic canal across 
 the isthmus that connects North and South America as will protect 
 our national interests. This, I am quite sure, will be found not only 
 compatible with, but promotive of, the widest and most permanent 
 advantage to commerce and civilization. 
 
 Mr. Evarts elaborated this idea with special reference to 
 the treaty of 1846, which, as has been seen, stipulates for 
 the "perfect neutrality" of the Isthmus of Panama. 
 
 Neither President Hayes nor Mr. Evarts proposed that 
 the canal should be fortified. Such a proposal was, how- 
 ever, put forward by Mr. Blaine, in his instructions to Mr.
 
 15 
 
 Lowell of November 19, 1881, as one of the "modifica- 
 tions" of the Clayton-Bulwer Treaty which he desired the 
 British Government to concede. He not only proposed 
 that the canal should be fortified by the United States, 
 but he also frankly declared his object to be that the 
 United States should use the canal for itself in time of 
 war, while closing it "impartialh^ " to the war vessels of 
 other belligerents. This he described as a proposal for 
 the preservation of the "neutrality" of the canal by the 
 United States. But it seems obvious that to apply the 
 term " neutrality " to such a plan is to be guilty of a man- 
 ifest contradiction of terms. The idea of neutrality or 
 neutralization has usually been deemed incompatible even 
 with the mere maintenance of armed forces and fortifica- 
 tions, to say nothing of the offensive or warlike use of 
 them. When, by Article IX of the treaty of Vienna, pro- 
 vision was made for the "neutrality of the Free Town 
 of Cracow and its territory," it was declared in the same 
 breath: "No armed forces shall be introduced upon any 
 pretense whatever." When, by Article XI of the treaty 
 of Paris, the Black Sea was " neutralized," the mainte- 
 nance of armaments upon it was forbidden. In the neu- 
 tralization of Luxemburg it was stipulated that the city 
 of Luxemburg should no longer be treated as a federal 
 fortress. By a treaty between Austria, France, Great 
 Britain, Prussia, and Russia, signed at London Novem- 
 ber 14, 1863, the Ionian Isles were united to Greece and 
 were neutralized. Article III of the treaty declares that 
 "as a necessary consequence of the neutrality which the 
 Ionian Isles are thus to enjoy, the fortifications constructed 
 in the Isle of Corfu and in its immediate dependencies, 
 having no longer any object, shall be demolished." The 
 treaties of March 30, 1856, November 2, 1865, and March 
 13, 187 1, having effected the neutralization of the Lower 
 Danube and of the works constructed in aid of its navi- 
 gation, the treaty of Berlin of July 13, 1S78, provided 
 (Article LII) that "all the fortresses and fortifications ex- 
 isting on the course of the river from the Iron Gates to
 
 i6 
 
 its mouth " should be " razed and no new ones erected." 
 The Argentine Republic and Chile, by their treaty of July 
 23, I 88 I, declare : 
 
 Ariiclk V. The Straits of Magellan are neutralized forever, and 
 their free navigation is guaranteed to the flags of all nations. To in- 
 sure this neutrality and freedom, it is agreed that no fortifications or 
 military defenses which might interfere therewith shall be erected. 
 
 The convention of 1888' for the neutralization of the 
 Suez Canal contains substantially the same stipulaticjns 
 against fortifications as the Hay treaty. Indeed, the idea 
 of erecting fortifications, even if no offensive or hostile 
 use of them be intended, for the purpose of preserving 
 "neutrality," is novel in public law. But, whatever may 
 be said of fortifying a place in order to preserve its "neu- 
 trality," to apply the term "neutral" to a canal not only 
 fortified by some one power, but fortified by that power 
 with the avowed design, while using it for purposes of 
 war, to exclude other belligerent powers from it, is to lay 
 ourselves open to the charge of a confusion of ideas and 
 a misuse of language. 
 
 Mr. Frelinghuysen, in continuing in 1882 the corre- 
 spondence begun by Mr. Blaine, did not renew the latter's 
 specific proposals, but stated that a canal under " the 
 protectorate of the United States and the republic whose 
 territorj' it may cross" could be "freely used by all na- 
 tions ; " and, after adverting to the fact that commerce had 
 moved through the Suez Canal "quietly and safely under 
 no international protectorate," he added: 
 
 The President, therefore, considers it unnecessary and unwise, 
 through an invitation to the nations of the earth, to guarantee the neu- 
 trality of the Isthmus, or to give their navies a pretext for assembling in 
 waters contiguous to our shores, and to possibly involve this Republic 
 in conflicts from which its natural position entitles it to be relieved. 
 
 These statements seem to contemplate a provision for 
 neutrality in a form different from that contained in the 
 pending treaty, under which the powers are simply to 
 pledge themselves neither to blockade the canal nor to 
 exercise any right of war or commit any act of hostility
 
 17 
 
 within it. Such a pledge could hardly afford their navies 
 "a pretext for assembling in waters contiguous to our 
 shores." 
 
 In the years that have elapsed since this correspond- 
 ence took place our situation has undergone a vast change. 
 We were then engagingly presented by our Department 
 of State to foreign nations as a people altogether singular 
 and bent upon a singular policy. We had neither navy 
 nor distant possessions, nor wanted any; and it might 
 have been added that we had no coast defenses. " Kven 
 as simple coaling stations ' said Mr. Frelinghuysen, "ter- 
 ritorial acquisitions would involve responsibilities beyond 
 their utility;" and he laid great stress upon our policy of 
 naval weakness, which he assumed to be permanent. To- 
 day we are improving our coast defenses, we hold distant 
 possessions capable of great development, and we have 
 a navy which we are increasing and shall continue to 
 increase. 
 
 THE POLICY OF NEUTRALIZATION AND THE 
 MONROE DOCTRINE. 
 
 While neutralization appears to have been our historic 
 policy, the assertion is made that it is incompatible with 
 another historic policy — the Monroe doctrine; and this 
 assertion has been repeated, with especial emphasis, with 
 reference to the particular guaranty of neutrality found 
 in the Clayton-Bulwer Treaty. That many of our states- 
 men have entertained a different view it would not be 
 difficult to prove by their utterances as well as by their 
 acts; for, among those who have sustained the principle 
 of the Clayton-Bulwer Treaty, there are numbered some of 
 the foremost champions of the Monroe doctrine. Without 
 going too far back, it is believed that we may place in this 
 category Mr. Olney, who, as Secretary of State, in his in- 
 structions to Mr. Bayard of July 20, 1895, on the \'cne- 
 zuelan boundary, said: 
 
 It [the Monroe doctrine] was the controlling factor in ihc cniancipa- 
 tion of South America, and to it the independent states which now 
 divide that region between them are largely indebted for their very
 
 i8 
 
 existence. Since then the most striking single achievement to be 
 credited to the rule is the evacuation of Mexico by the French upon 
 the termination of the civil war. But we are also indebted to it for the 
 provisions of the Clayton-Bulwer Treaty, which both neutralized any 
 interoceanic canal across Central America and expressly excluded 
 Great Britain from occupying or exercising any dominion over any 
 part of Central America. 
 
 The idea thus expressed- by Mr. Olney is that in which 
 the treaty was conceived, namely, that an agreement of 
 neutralization should, as a measure excluding interven- 
 tion, be considered, not as an infringement, but as a ful- 
 fillment of the Monroe doctrine; and it is probable that 
 this idea would have continued to be accepted with prac- 
 tical unanimity had it not been for certain stipulations 
 which the Hay treaty nullifies and supersedes. 
 
 Not only was the Clayton-Bulwer Treaty construed, by 
 reason of its provision against "exclusive control," as in- 
 hibiting either Government from constructing or owning 
 the canal, but it bound them, while the canal was in proc- 
 ess of construction, jointly to "protect" all persons and 
 property connected with it "from unjust detention, con- 
 fiscation, seizure, or any violence whatsoever," and, after 
 its completion, jointly "to protect it from interruption, 
 seizure, or unjust confiscation," as well as to "guarantee " 
 its neutrality. These stipulations have been criticised as 
 creating a virtual alliance for joint protection and se- 
 curity, even to the extent of joint intervention in the 
 affairs of American governments within whose jurisdic- 
 tion the canal riiight lie, and as constituting in this sense 
 a violation of the spirit of the Monroe doctrine. This 
 objection, whether well-founded or ill-founded, is, as a 
 simple comparison will demonstrate, removed by the Hay 
 treaty, which contains no stipulation for a joint guaranty, 
 but permits the United States alone, subject only to the 
 engagement of neutralization, to construct, manage, and 
 protect the canal:
 
 19 
 
 CLAYTON-BULWER TREATY. 
 
 Article I. The Governments of 
 the United States and Great Brit- 
 ain hereby declare that neither 
 the one nor the other will ever 
 obtain or maintain for itself any 
 exclusive control over the said 
 ship canal; * * * neither will 
 ever erect or maintain any fortifi- 
 cations commanding the same, 
 etc. 
 
 Ar'I". III. The persons em- i 
 ployed in making the said canal, ' 
 and their property * * * shall 
 be protected * * * by the Gov- 
 ernments of the United States and 
 Great Britain from unjust deten- 
 tion, confiscation, seizure, or any 
 violence whatsoever. 
 
 Art. V. The contracting par- 
 ties further engage that when the 
 said canal shall have been com- 
 pleted they will protect it from 
 interruption, seizure or unjust 
 confiscation ; * * * 
 
 HAY TREATY. 
 
 Article I. It is agreed that the 
 canal may be constructed under 
 the auspices of the Government of 
 the United States, either directly 
 at its own cost, or by gift or loan 
 of money to individuals or cor- 
 porations or through subscription 
 to or purchase of stock or shares, 
 and that, subject to the provisions 
 of the present convention, the said 
 Government shall have and enjoy 
 all the rights incident to such con- 
 struction, as well as the exclusive 
 right of providing for the regula- 
 tion and managementof the canal. 
 
 Art. II. No fortifications shall 
 be erected commanding the canal 
 or the waters adjacent. The 
 United States, however, shall be 
 at liberty to maintain such mili- 
 tary police along the canal as may 
 be necessary to protect it against 
 lawlessness and disorder. 
 
 THE CLAYTON-BULWER TREATY. 
 
 But it is suggested that no treaty of any l<ind should 
 have been made, and particularly that no recognition 
 should have been given to the Clayton-Bulwer Treaty, 
 which, it is said, had not merely ceased to exist, but, in 
 fact, never legally existed. Concerning the question thus 
 raised, it is our duty candidly to examine our own record. 
 The facts in regard to the treaty are neither difficult to 
 ascertain nor hard to understand; nor, singularly enough, 
 did the controversies to which it gave rise, soon after it 
 was ratified, relate to that feature of it — the principle of 
 neutralization — which the Hay treaty has been criticised 
 for sanctioning. 
 
 As has been shown, the Governments of the United 
 States and Great Britain, in Article I of tlie Clayton- 
 Bulwer Treaty, declared that neither the one nor the
 
 20 
 
 Other would "ever obtain or maintain for itself any ex- 
 clusive control" over the canal by way of the River San 
 Juan de Nicaragua, and either or both of the lakes of 
 Nicaragua or Managua. To this end they further agreed 
 that neither would — 
 
 Ever erect or maintain any ftirtificatioii commanding the same, or 
 in the vicinity thereof, or occupy, or fortify, or colonize, or assume, 
 or exercise any dominion over 'Nicaragua, Costa Rica, the Mosquito 
 Coast, or any part of Central America; nor * * * make use of any 
 protection which either affords or may afford, or any alliance which 
 either has or may have to do with any State or people for the purpose 
 of erecting or maintaining any such fortifications, or of occupying, 
 fortifying, or colonizing Nicaragua, Costa Rica, the Mosquito Coast, 
 or any part of Central America, or of assuming or exercising dominion 
 over the same; nor * * * take advantage of any intimacy, or use 
 any alliance, connection, or influence that either may possess, with any 
 State or Government through whose territory the said canal may pass, 
 for the purpose of acquiring or holding, directly or indirectly, for the 
 citizens or subjects of the one any rights or advantages in regard to 
 commerce or navigation through the said canal which shall not be 
 offered on the same terms to the citizens or subjects of the other. 
 
 When this agreement was made, Great Britain held 
 what was then called the settlement at Belize, or British 
 Honduras, which had been in her actual possession for 
 half a century, and of which she claimed certain islands 
 to be a dependency; and she also exercised a protectorate 
 over the Mosquito Coast. The ratifications of the treaty 
 were exchanged at Washington July 4, 1850. On the 29th 
 of the preceding month Sir Henry Bulwer communicated 
 to Mr. Cla)'ton the following memorandum : 
 
 In proceeding to the exchange of ratifications of the convention 
 * * * the undersigned. Her Britannic Majesty's Plenipotentiary, 
 has received Her Majesty's instructions to declare that Her Majesty 
 does not understand the engagements of that convention to apply to 
 Her Majesty's settlement at Honduras, or to its dependencies. Her 
 Majesty's ratification of the said convention is exchanged under the 
 explicit declaration above mentioned. 
 
 Mr. Clayton on the 4th of July replied: 
 
 The language of Article I of the convention concluded on the 19th 
 of April last between the United States and Great Britain * * * 
 was neither understood by them nor by either of us (the negotiators)
 
 21 
 
 to include the British settlement in Honduras (commonly called 
 British Honduras, as distinct from the State of Honduras), nor the 
 small islands in the neighborhood of that settlement which may be 
 known as its dependencies. * « * The title to them it is now 
 and has been my intention throughout the whole negotiation to leave 
 as the treaty leaves it, without denying, affirming, or in any way med- 
 dling with the same, just as it stood previously. The chairman of the 
 Committee on Foreign Relations of the Senate, the Hon. William R. 
 King, informs me that " the Senate perfectly understood that the treaty 
 did not include British Honduras." It was understood to apply to, 
 and does include, all the Central American States of Guatemala, Hon- 
 duras, San Salvador, Nicaragua, and Costa Rica, with their just limits 
 and proper dependencies. 
 
 When this correspondence was communicated to the 
 Senate, it gave rise to a discussion, in which Mr. Cass bore 
 the leading part. Mr. Cass denied the authority of Mr. 
 King to speak for him, and offered a resolution instruct- 
 ing the Committee on Foreign Relations to inquire and 
 report what measures, if any, should be taken by the 
 Senate in regard to the correspondence. The committee 
 reported that no measures were, in its opinion, necessary, 
 and none were taken. The treaty had, in fact, been rati- 
 fied by a vote of 42 to ir.* The case was allowed to 
 stand as the two Governments had made it; and it ap- 
 pears that their representatives, in negotiating the treaty 
 and in exchanging its ratifications, considered and treated 
 British Honduras, with its proper limits and dependen- 
 cies, as having once formed a part of Yucatan or Mexico, 
 and not as a part of Central America; and, having no 
 power to determine those limits and dependencies, they left 
 that subject to be adjusted between Great Britain, on the 
 one hand, and Mexico and the adjacent Central American 
 
 ♦This number includes the vote of Senator Douglas, who, though he was not re- 
 corded at the time, afterward stated that he voted against the treaty. Willi this 
 inclusion, the vote stood: 
 
 " Yeas— Messrs. Badger, Baldwin. Bell, Berrien. Butler, Cass, Chase. Clarke, Clay. 
 Cooper, Corwin, Davis of Massachusetts, Dawson, Dayton. Dodge of Wisconsin, 
 Dodge of Iowa, Downs, Felch, Foote, Green, Hale, Houston, Hunter. Jones. King. 
 Mangum, Mason. Miller. Morton. Norris. Pearce. Pratt. Sebasdaii. Seward. Shields. 
 Smith. Soule, Spruance. Sturgeon, Underwood, Wales, and Webster 4J. 
 
 " Nays— Messrs. Atchison, Borland, Bright. Clemens, Davis of Mississippi, Dickin- 
 son, Douglas, Turney, Walker, Whitcomb, and Vulee ii "
 
 22 
 
 States, on the other. In July, 1852, however. Great Brit- 
 ain, by a proclamati(ni, erected the Bay Islands, which 
 she claimed as a dependency of British Honduras, into a 
 Crown colony. The islands were also claimed by the 
 State of Honduras, and against this act of the British 
 Government the United States protested as a violation of 
 the treaty. The British Government also claimed that it 
 might, under the terms of the treaty, continue its pro- 
 tectorate over the Mosquito Coast. The position consist- 
 ently maintained by the United States in the controversies 
 which ensued was well expressed by Mr. Marcy, Secre- 
 tary of State, who, in an instruction to Mr. Borland, 
 United States Minister to Central America, of December 
 30, 1853, said: 
 
 This Government considers it (the Clayton-Bulwer Treaty) a subsist- 
 ing contract, and feels bound to observe its stipulations so far as by 
 fair construction they impose obligations upon it. If Great Britain has 
 failed, or shall fail, on her part to fulfill the obligations she has therein 
 assumed, or if she attempts to evade them by a misconstruction of that 
 instrument, the discussions that may arise on these subjects must nec- 
 essarily take place between the parties to it. * * * It is believed 
 that Great Britain has a qualified right over a tract of country called 
 the Belize, from which she is not ousted by this treaty, because no part 
 of that tract, when restricted to its proper limits, is within the bound- 
 aries of Central America. 
 
 Mr. Cass, who succeeded Mr. Marcy as Secretary of 
 State, maintained the same position, declaring on various 
 occasions that the great object of the United States was 
 to effect the execution of the treaty and thus to secure the 
 neutralization of interoceanic communication. The result 
 of the long-continued negotiations was stated by President 
 Buchanan in his fourth annual message, Mr. Cass still be- 
 ing Secretary of State, as follows: 
 
 The discordant constructions of the Clayton and'Buhver Treaty be- 
 tween the two Governments, which at different periods of the discus- 
 sion bore a threatening aspect, have resulted in a final settlement 
 entirely satisfactory to this Government. In my last annual mes- 
 sage I informed Congress that the British Government had not then 
 "completed treaty arrangements with the Republics of Honduras and
 
 23 
 
 Nicaragua in pursuance of the understanding between the two Gov- 
 ernments. It is, nevertheless, confidently expected that this good 
 work will ere long be accomplished." This confident expectation has 
 since been fulfilled. Her Britannic Majesty concluded a treaty with 
 Honduras on the 28th November, 1859, and with Nicaragua on the 
 2Sth August, i860, relinquishing the Mosquito protectorate. Besides, 
 by the former, the Bay Islands are recognized as a part of the Republic 
 of Honduras. 
 
 Since i860 the Government of the United States has on 
 various occasions referred to the Clayton-Bulwer Treaty 
 as a subsisting convention. Mr. Fish, as Secretary of 
 State, in a memorandum communicated to the Nicaraguan 
 Minister, February 16, 1877, said: 
 
 The obligation of the Clayton-Bulwer Treaty, including that which 
 provides for an invitation to other powers to join in guaranteeing the 
 neutrality (of the canal), are still subsisting. This Government has 
 hitherto abstained from making a proposition on the subject to other 
 powers, because there has been no prospect of a completion, or even 
 of a commencement, of the canal. Having already entered into the 
 stipulation with Great Britain, and that still being in force, its repeti- 
 tion in a treaty with Nicaragua might imply a doubt of the good faith 
 of the United States on the subject. 
 
 Mr. Blaine, in his correspondence with the British Gov- 
 ernment in 1881, expressed the earnest hope that Great 
 Britain would "concede" certain "modifications" of the 
 treaty, the rest of it to "remain in full force." Indeed, 
 by those who hold that the United States should as a mat- 
 ter of policy rid itself of the obligations of the Clayton- 
 Bulwer Treaty, Mr. Blaine has been severely criticised 
 for making this broad acknowledgment of its continuing 
 validity. Mr. Frelinghuysen, who took up the correspond- 
 ence where Mr. Blaine left it, is sometimes supposed to 
 have held the treaty to be null and void. This supposi- 
 tion is altogether erroneous. Instead of declaring the 
 treaty to be void, he merely expressed the opinion thai it 
 was "voidable," and this opinion he based upon a hypoth- 
 esis and not upon any positive assumption of fact. He 
 based it solely upon the question as to British Honduras. 
 Nevertheless, he did not discuss the question whether Brit- 
 ish Honduras was ever a part of Central America, nor did
 
 24 
 
 he assert that it was. On the contrary, he contented him- 
 self with saying, " If Great Britain has violated and con- 
 tinues to violate" the treaty by holding British Honduras, 
 then " the treaty is, of course, voidable at the pleasure of 
 the United States." Mr. Olney, as has been seen in his 
 instructions to Mr. Bayard of July 20, 1895, a copy of 
 which was communicated to the British Government, re- 
 ferred to the treaty as a subsisting engagement. 
 
 THE GENERAL TREATY SITUATION. 
 
 But the Clayton-Bulwer Treaty is not the only act by 
 which the neutralization of the canal is pledged. In re- 
 spect to the Panama Canal, "there is also our treaty with 
 New Granada of 1846, to which we have heretofore ad- 
 verted, and if this treaty, which is terminable on notice, 
 were out of the way, it remains to be seen whether Colom- 
 bia would negotiate on any other basis. The situation 
 in respect of the Nicaragua Canal appears to be more 
 complicated. The treaty of peace and friendship between 
 Spain and Nicaragua of July 25, 1850, provides (Article 
 XIII) that the former power shall "enjoy on the transit 
 the same advantages and exemptions as are granted to the 
 most favored nation," and shall, on the other hand, guar- 
 antee its "neutrality," in order "to keep the transit 
 thereby free" and "protect it against all embargo or con- 
 fiscation," and the treaty between Spain and Costa Rica 
 of May 10, 1850, grants (Article XIII) to the Spanish flag 
 and merchandise "free transit" upon any canal through 
 the territory of Costa Rica on the same terms as "the 
 vessels, merchandise, and citizens" of the latter country. 
 By Articles XXVII-XXXIII of the treaty of amity, com- 
 merce, and navigation, between France and Nicaragua, 
 of April II, 1859, the neutrality and free use of the canal 
 are amply guaranteed. The treaty of commerce between 
 Great Britain and Nicaragua of February 11, i860, con- 
 tained similar stipulations; but it expired June 11, 1888, 
 on notice given in conformity with its terms. The treaty 
 between Italy and Nicaragua of March 6, 1868, provides
 
 25 
 
 for most-favored-nation treatment in respect of "naviga- 
 tion," as well as of commerce. Last, but not least, there 
 is our own treaty with Nicaragua of 1867, the precise 
 stipulations of which have already been quoted. 
 
 SUMMARY OF RESULTS. 
 
 Our investigations seem to have shown: 
 
 1. That the engagement of neutralization, embodied in 
 the Hay treaty, is amply supported by precedent and by 
 principle. 
 
 2. That the policy of a neutralized canal is the historic 
 policy of the United States. 
 
 3. That the Clayton-Bulwer Treaty, in stipulating for 
 neutralization, excluded either Government from con- 
 structing and owning the canal, but permitted and re- 
 quired both Governments to protect it against all attacks. 
 
 4. That this treaty has been repeatedly and continually 
 referred to and acted upon by the United States as a sub- 
 sisting engagement, and has never in fact been declared 
 to be at an end. 
 
 5. That, if the Clayton-Bulwer Treaty were abrogated, 
 the situation would not be radically altered, since the 
 neutralization of the canal is guaranteed by various other 
 treaties. 
 
 6. That the Hay treaty, while adhering to the policy 
 of neutralization, permits the United States to construct, 
 own, and manage the canal, does away with all stipula- 
 tions for joint intervention, and concedes to the United 
 States alone the liberty to afford protection against law- 
 lessness and disorder. 
 
 Into the military question, with which the argument 
 against neutralization is for all practical purposes exclu- 
 sively concerned, I have not attempted to enter. One 
 view of it is well expressed in the reported statement of 
 Admiral Dewey: 
 
 Fortifications? Why, of course not. As I understand it, the canal 
 is to be, and should be, a neutralized commercial pathway between the 
 two great oceans. To fortify it would simply result in making it a
 
 26 
 
 battle ground in case of war. Fortifications would be enormously ex- 
 pensive, and ought not to be erected. Our fleets will be a sufficient 
 guaranty of the neutrality and safety of the canal in time of war, as 
 well as in peace. 
 
 In opposition to this weighty opinion of the hero of 
 Manila, it may be urged that circumstances may be con- 
 ceived in which exclusive military control would, if attain- 
 able, constitute a great advantage. This view, however, 
 may suggest the retort that circumstances may readily be 
 conceived in which the assurance of an unobstructed pas- 
 sage would constitute as great an advantage; that, to 
 argue from conceivable circumstances, is in effect to admit 
 that the question is one of chance, and that, in such a 
 predicament, considerations of another order, such as the 
 security and preservation of the canal, the freedom of 
 commerce and navigation, and that "decent respect to 
 the opinions of mankind," of which the Declaration of In- 
 dependence speaks, should prove decisive. 
 
 J. B. Moore.
 
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