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words origin and destination illustrate the case most clearly. The work performed, the services rendered by the canal should conclusively determine the amount of tolls in every case. In feudal days discriminations were favored, but under modern theories of correct government discriminations are odious.

The thirteen colonies gained their territory and sovereignty by combat and the treaty of 1783. Florida, Louisiana, and the Panama lands and rights were acquired by treaties. The canal property now represents the sum of $400,000,000. These are not the kind of treaties that are revoked by a mere breach of conditions or by “change of circumstances” since the making of the treaty. Large vested and continuing interests in land are not to be taken from a nation only with its consent or by battle. Even forfeitures between individuals are not favored in the law. It is sheer folly to assert that a nation can be divested of its territory by mere legal construction of the terms of a treaty; still the holding nation should in honor observe and keep its promises. A nation does not have unlimited sovereignty, while subject to binding charges and servitudes, for the obligations may be enforced by and through the world's vis major.

Whatever may be gained, by treaty or by war, may be lost by the same process.



The Spooner Law was approved June 28, 1902, after we had come to realize that we could secure the French rights in Panama for $40,000,000. The President was authorized to buy these rights, also to secure the needed lands by a purchase from the Republic of Colombia. He attempted to buy from the latter but wholly failed. The opportunity came to purchase the same lands and right of way from Panama, claiming to be the successor to Colombia.

Technically the statute required the purchase from Colombia and not from Panama; but the President and in fact the country demanded the Panama canal and it should be secured, if at all, legally possible. The President made a treaty with Panama and purchased the canal zone from her, because of Colombia's continued refusal to make the grant. The President justified his course (which was not literally within the words of the Spooner act) by claiming that he was locating the canal on the line required by the law, and on the line of the French unfinished canal. The French rights located the canal and it could be nowhere else under that law. The only question was as to the technical name of the grantor; it was to be Colombia. The President moved around this by saying as Panama had seceded from Colombia he could not buy from the latter but, if buy at all, it must be from the successor.

There was a stronger ground than this; and it was the real course, in fact, that was pursued. The treatymaking power of our nation—the President and Senate -did make a treaty with Panama by which the right to the canal zone was secured. The statute directed the President to buy the route from Colombia. But he did what he had the constitutional right to do independent of the statute—buy it by treaty from Panama if she owned it. Congress could not deprive him of his right of making the treaty, but might in any such case refuse to furnish the funds.

The canal right was contracted for by treaty and all was constitutional up to this point. The only question was, did the President have the authority to use $10,000,000 to pay to Panama when the order was to pay it to Colombia ? All of the law-making body, except the House, consented to the purchase from Panama, by making the treaty. If money unlawfully was used to buy lawful property for the nation under great necessity and all was afterward abundantly recognized by Congress the whole deal so far as our national affairs are concerned has been affirmed and ratified. It has become, in a domestic sense, a closed incident and now only of historic interest. See Wilson vs. Shaw 204 U. S. Rep.

The important question now before us is, are we bound legally and morally to use the canal for the purposes for which it was acquired, and are we bound to abide by all of the provisions of the two treaties There ought to be but one answer to this question.

AN IMPORTANT DECISION. The late case of Wilson v. Shaw before the United States Supreme Court, in 1906, being brought to test the right of the United States to build the canal and also to question the title acquired from Panama, is a case of momentous importance, and could not be omitted from a book giving a view to date of the canal controversy.

The land having been purchased and the canal work having proceeded to a large extent, the court did not care to go to the extreme length of enjoining the political department from performing a work of such magnitude.

Hence only the main points raised by the plaintiff were given any consideration by the court. It evidently had no sympathy with the attempt to enjoin this work.

The court did not feel called upon even to decide whether we have sovereignty over the canal or not. It did decide that the nation had title under the treaty with Panama but did not say what limitations if any the property was subjected to by the treaty. It said nothing about how the canal was to be operated or whether the operator was a common carrier or not, or on what terms or conditions it was to be operated.

The court rarely goes beyond what is essential to the decision of the case in hand, but leaves all other questions to be decided when the occasion may so require. The decision is most important so far as it extends; hence we print the most interesting parts of it, below.


Justice Brewer rendering the decision said:

If the bill was only to restrain the Secretary of the Treasury from paying the specific sums named therein, to wit: $40,000,000 to the Panama Canal Company and $10,000,000 to the Republic of Panama it would be sufficient to note the fact of which we may take judicial notice that those payments have been made and that whether they were rightfully made or not is so far as this suit is concerned, a moot question. * * *

But the bill goes further and seeks to restrain the Secretary from paying out money for the construction of the canal, from borrowing money for the purpose and issuing bonds of the United States therefor. In other words the plaintiff invokes the aid of the courts to stop the government of the United States from carrying into execution its declared purpose of constructing the Panama canal. The magnitude of the plaintiff's demand is somewhat startling. * * *

To tell the story of all that was done in respect to the construction of this canal prior to the active intervention of the United States, would take volumes. It is enough to say that the efforts of de Lesseps failed. Since then Panama has seceded from the Republic of Colombia and established a new republic which has been recognized by other nations. This new republic has by treaty granted to the United States rights, territorial and otherwise. Acts of Congress have been passed providing for the constructing of a canal, and in many ways the executive and legislative departments of the government have committed the United States to this work, and it is now progressing. For the courts to interfere and at the instance of a citizen, who does not disclose the amount of his interest, stay the work of construction by stopping the payment of money from the treasury of the United States therefor, would be an exercise of judicial power which, to say the least, is novel and extraordinary. * * *

He contends that whatever title the government has was not acquired as provided in the act of June 28, 1902, by treaty with the Republic of Colombia. A short but sufficient answer is that subsequent ratification is equivalent to original authority. The title to what may be called the Isthmian or Canal Zone, which at the date of the act was in the Republic of Colombia, passed by an act of secession to the newly formed Republic of Panama. The latter was recognized as a nation by the

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