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I. D. TRAVIS, The History of the Clayton-Bulwer Treaty, 1900.
A. VIALLATE, Essais d'histoire diplomatique américaine (Paris, 1905).
JOHN WESTLAKE, International Law, Part I. (Cambridge, 1904). WHARTON, Digest of International Law of the United States.
WHEATON, Elements of International Law, Dana's edition.
J. G. WHITELEY, "Les traités Clayton-Bulwer et Hay-Pauncefote," in La Revue général de droit international public, tome iii., 2e série.
T. S. WOOLSEY, "Suez and Panama-A Parallel," in Annual Report of the American Historical Association, 1902.
THE PANAMA CANAL
THE Communication of the two great oceans by means of a canal is in no way a new idea. To-day it is considered to be the greatest of all modern undertakings, but the roots of the project lie far back in the history of the world. It is common knowledge that Columbus, by that rare intuition of genius that led him to discover the New World, always persisted in the idea of shortening the route to the seas of Asia in quest of the fabulous commerce in spices; this was the reason why, incited by the news that Vasco de Gama had found a passage south of the Cape of Good Hope, he set out in his fourth and last voyage with the sole purpose of discovering the route which he thought must exist. It so happened that he directed his course to the spot where such communication might possibly be found; in fact, to a place very near that in which the excavation of a canal is now in progress. But we shall pass over in silence the long and interesting history of the attempts made by Spain during the three hundred years of her domination over Central America. Nothing need be said with regard to the explorations carried out in the course of four centuries which led to the discovery of
several possible routes, or the causes that ultimately contributed to the adoption of the Panama route. Such inquiries would be irrelevant to our subject.1
It would, however, not be possible, on the other hand, to understand the position of the Panama Canal before the law of nations without following closely the policy adopted by the United States in this connection, from the time that the great North American Republic came to be interested in the problem of this maritime communication. It is well
known that the result of this policy has ultimately culminated in the construction of the canal under the control of the United States. We must therefore trace step by step the progress of this course of action, noticing thereby the changes and the tendencies manifested by the Department of State, in order that we may be enabled to state to what extent the privileges of neutralisation would attach, both in theory and in fact, to the waterway that will separate North and South America.
Objection may be taken to the treatment of the subject in this manner. In fact, it is hardly possible to avoid the criticism that the question is being dealt with from the political standpoint, leaving to its legal aspect only a secondary position. But it must be remembered that there can hardly be any conception that is not in some manner connected with another. In dealing with any given problem whose solution is sought, account must be taken of all those notions
1 Information on the history of the proposition to unite the Atlantic and the Pacific by water communication may be obtained in the somewhat curious and discursive report presented to the Colombian Congress, on the subject of an interoceanic canal, by J. M. Quijano Otero, 1st April 1875.
that seem to be germane or have a bearing to it, if a masterly grasp of the subject is to be obtained, so as to reach the ultimate truth. It cannot be denied that International Law-which lacks that "positiveness spoken of by Austin-is intimately connected with the science of politics and therein with diplomatic history. This is the reason why non- dogmatic writers on the law of nations cannot avoid stepping into the domain of international politics. The statesman has to appeal at every moment to precedent. He must know, if his arguments when dealing with an international question are to be of any avail, the existence of the rule of law, as well as the cases in which such rule was applied. Even for international jurists, whose business is not the actual dealing with concrete legal cases, the history of the law would seem to be necessary. As the law of nations is based on the consensus of the civilised states, their duty is to ascertain the agreement arrived at by the members of the international community. If instead of doing this they resort to a priori reasoning, then they will find themselves on some metaphysical height, whence they can only derive ethical principles that cannot under any possibility be regarded as legal rules. The jurist, therefore, in attempting to expand the law from the scientific point of view, is compelled to call the aid of history in order to ascertain the causes that have brought a certain rule into existence, and thus properly apprehend its application.
It is to be borne in mind that the conclusions at which we shall be able to arrive as regards the neutralisation of the Panama Canal are naturally influenced by the political action of the states most
directly concerned with the enterprise. For this reason their diplomatic history in this connection during the course of something more than threequarters of a century must be considered. But the problem which these pages attempt to solve is primarily legal.
Although it is not our intention to put forth, and much less to reconcile, the various statements that have been made purporting to contain the famous doctrine of Monroe, as applied to an interoceanic communication, it would seem advisable to begin this study with the assertion of President Monroe in his message of December 2, 1823. In this way we shall
be able to sketch out the position that the United States have occupied and actually hold in the subject of isthmian transit across Central America. By inquiring into the policy which the United States have followed in this matter, much light will be thrown on the subject of the position of the Panama Canal before International Law.
In connection with the exorbitant claims in North America on the part of Russia, who wanted to appropriate to herself the dominion of land and sea near Alaska, the United States President asserted that the "American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonisation by any European powers"; and under the circumstances connected with the proposal of the Holy Alliance to help Spain to regain her lost possessions in the New World, Monroe expressed himself as follows: "We owe it to candour and to the amicable relations existing