Central and South America will be greatly benefited by the building of the canal and the guarantee of peace and order along its line; and hand in hand with the benefit to them will go the benefit to us and to mankind."

We have one more source of information of what John Hay's opinion was, about equal rights of all nations in the use of the canal; it has not been brought out before in our American arguments. Bunau-Varilla and Secretary Hay held private conferences about the contents of the treaty with Panama; only one of the parties is now living. By referring to the Varilla book on Panama at pages 373 and 376 will be found a full statement of what Secretary Hay said about the purpose of the United States in building the canal and the reason why Section 18 was put into the treaty with Panama and why the Hay-Pauncefote treaty was engrafted into and made a binding part of the same treaty. The Varilla statement seems to confirm just what Mr. Hay had always said about the neutrality and equality of use of the canal by all customers.

Our country joined in the English treaty of 1901 and the Panama treaty of 1903 and whether these pledges were in substance carried into the treaties or not we should show our good faith to the world and voluntarily respect them.

Note: President Grant contended for an "American canal," still, in 1870, he authorized Gen'l Hurlbut, at Bogota, to sign a treaty for "equal tolls to all nations," and sent the same to the Senate for ratification. President Johnson (1869) sent a similar treaty to the Senate to be ratified. American officials, by urging "American control," meant merely the "political" control. Economically they all demanded "toll equality."

CHAPTER XVI.

ABSTRUSE PHRASE "ALL NATIONS."

From the Morning News, Wilmington, Del., April 29,

1914.

To the Editor: Many Americans in the Panama controversy are willing to stand on the epigram that, "It cannot be reasonably argued that in fixing the terms for customers that our nation looked upon itself as one of the customers." This may be a convincing statement, but it is not conclusive.

It is not a question of what Congress thought when laying the tolls, but what England and America both thought and had a right to think when the treaty was made. America was extremely anxious for the treaty and in it agreed that there should be "entire" equality as to all nations. If "customers" is substituted for nations it would read "equal to all customers." Every user of the canal ought to be a "customer" and not a "mendicant." It sounds better. Again, the word customer should not be determined by nationality alonecustomer means user. Even if the nation could prefer itself, still one individual, or even a class, is not the whole nation.

We lose ground by standing on the epigrammatic statement. We get back in the end to the old question, did we include our own people by the words "all nations"? As only two nations were contracting, the words must of necessity include both of these parties. The "other" nations were oblivious to the compact.

If "all nations" included England why did it not

also include America? Can it be that a mutual contract is not "mutually" binding? These words literally defined mean "all in the family of nations," or that the outside nations not contracting were entirely excluded for want of privity in the agreement; then the treaty would apply only to the contracting parties.

And again, equality to all nations means equality as "to all people of all nations." And this is where we arrive in the final analysis. The question is thus clear, that the canal was for all the people of the earth and America as a corporate body was to be the instrument to build and operate the canal for all on grounds of entire equality. Of course Americans are part of the world's people.

Ownership alone does not confer all the benefits of user upon the owner; other ships must have the right to use. A public utility is for the public use, and the operator, when it has made a compact for equality of use cannot prefer its own citizens. The real question is, was not the title secured from Panama specifically described as for canal purposes? If we did not get the lands for "canal purpose" why are we in Panama at all? And further, what has the Hay-Pauncefote treaty to do with anything but a public canal? We made our canal treaties wholly to secure a canal—and it was an international franchise grafted on to interests in lands. This franchise and landed interest was subject to all charges mentioned in the treaties with England and Panama. Equality requires the collection of tolls on all where there is power to collect. Our nation has power to collect against any ships that use the canal.

The equality mentioned in the English treaty is in words expressly backed up by the Bunau-Varilla treaty which grants the right from Panama. We there af

firmed the English treaty of 1901 and made it a part of the canal grant.

The Hay treaty should be construed in connection with the Clayton treaty which is superseded. The latter expressly required equality between England and America because no others were connected with it (unless they joined in protecting the canal) then they were all to become equal. The new treaty was for the benefit of the world and the comprehensive expression "all nations" was adopted. If there is no "ambiguity” in the treaty then England is right. If there is ambiguity it is a latent ambiguity and parol evidence may be used to prove what the parties really intended. This evidence is all in favor of full equality to all users. A liberal construction must include America in the clause "all nations."

GEORGE A. TALLEY.

CHAPTER XVII.

FORTIFICATION AND WAR.

From Morning News, Wilmington, May 16, 1914. Mr. Editor: Some Americans have difficulty in knowing what our status would be if we were at war with a foreign power.

If any power was at war with America that per se would be war against all the forces, power, property and sovereignty of the United States. A hostile ship would not be allowed within cannon shot of the canal, much less be permitted to enter it. A state of war during the continuance thereof operates to abrogate all prior treaties and contract rights between the belligerents. War creates no "gentleman's agreement," it is war simply with all its dire and terrible consequences.

The canal having been built by the United States for the public (or as trustee for the world) its relation to it is of a dual character. It has a property interest in the canal and appurtenances, and operates a public utility for all law-abiding people of the world. Its duty as owner and as trustee is vigorously to maintain and protect the great improvement both on account of its own money invested and for the benefit of the world's shipping industry.

It would be a terrible disaster to all nations to have this enterprise damaged or destroyed. The right to construct being granted us, the right to maintain and protect is necessarily implied. The right to enter the canal and pass through involves a question of civil contract and the payment of money as tolls. How can warring nations enter into civil business relations with each

787274