Page images

President. A treaty with it, ceding the canal zone was duly ratified. 33 stat. 2234. Congress has passed several acts based upon this title of the United States, among them one to provide a temporary government. 33 stat. 429. * * *

It is too late in the history of the United States to question the right of acquiring territory by treaty. Other objections are made to the validity of the right and title obtained from Panama by the treaty; but we find nothing in them deserving of special notice.

Another contention, in support of which plaintiff has presented a voluminous argument, is that the United States has no power to engage in the work of digging this canal. His first proposition is that the canal zone is no part of the territory of the United States, and that, therefore, the government is powerless to do anything of the kind therein. Article

Article 2 of the treaty, heretofore referred to, "grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said canal.” By Article 3 Panama “grants to the United States all the rights, powers and authority within the zone mentioned and described in Article 2 of this agreement *** which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located, to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.”

Other provisions of the treaty add to the grants named in these two articles further guarantees of exclusive rights of the United States in the construction and maintenance of this canal. It is hypercritical to contend that the title of the United States is imperfect,

[ocr errors]

and that the territory described does not belong to this nation, because of the omission of some of the technical terms used in ordinary conveyance of real estate.

Further, it is said that the boundaries of the zone are not described in the treaty; but the description is sufficient for identification, and it has been practically identified by the concurrent action of the two nations alone interested in the matter. The fact that there may possibly be in the future some dispute as to the exact boundary on either side is immaterial. Such disputes not infrequently attend conveyances of real estate or cessions of territory. Alaska was ceded to us forty years ago, but the boundary between it and the English possession east was not settled until within the last two or three years. Yet no one ever doubted the title of this republic to Alaska.

Again plaintiff contends that the government has no power to engage anywhere in the work of construct ing a railroad or canal. The decisions of this court are adverse to this contention. In California v. Pacific R. R. Co. 127 U. S. 39, it was said:

It cannot at the present day be doubted that Congress under the power to regulate commerce among the several States, as well as to provide for postal accommodation and military exigencies had authority to pass these laws. The power to construct or to authorize individuals or corporations to construct national highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce.

A fortiori, Congress would have like power within the territories and outside of state lines, for there the

* *

[blocks in formation]

legislative power of Congress is limited only by the provisions of the Constitution, and cannot conflict with the reserved power of the states. Plaintiff, recognizing the force of these decisions seeks to obviate it by saying that the expressions were obiter dicta, but plainly they were not. They announce distinctly the opinion of this court on the questions presented, and would have to be overruled if a different doctrine were now announced.




America has been discussing the question of canals and ways of transit across the historic isthmus for more than three-quarters of a century; and we quote the following, from public documents and history.

Henry Clay declared as early as 1826: "that if a canal be opened across the isthmus for sea vessels

* its benefits should be extended to all parts of the globe upon payment of a just compensation or reasonable tolls.”

In 1835 a senate resolution spoke with reference to an isthmian canal and among other things used the words "free and equal right to all.”

To the same effect was a house resolution in 1839.

Mr. Root in his speech in the Senate, May, 1914, cites Rives as saying to Palmerston: That the United States would not if they could obtain "any exclusive right or privilege in a great waterway which naturally belongs to all mankind." This was said in 1849 and related to the pending Clayton treaty.

In 1846 we made a treaty with New Granada by which she bound herself that the transit across the isthmus shall be free to the government and citizens of the United States and no other tolls shall be levied upon her citizens passing over any road or canal made by New Granada or under her authority than is laid on the Granadian citizens.

Then in 1850 the Clayton-Bulwer treaty was made with England and the two nations agreed that if any canal is built from the Atlantic to the Pacific that neither will seek any advantage in navigation through the canal which shall not be offered on the same terms to the citizens or subjects of the other.

Secretary Cass in 1858 had discussion with England about the Clayton treaty and wrote as follows: “While the declared object of that convention had reference to a ship canal by the way of San Juan yet it avowed none the less plainly a general principle in reference to all practicable communications across the isthmus * * * The principle was that the inter-oceanic routes should remain under the sovereignty of the states through which they ran and be neutral and free to all nations alike. * * * So far as the United States and Great Britain are concerned these stipulations were expressed in unmistakable terms. * * *

"What the United States wants in Central America next to the happiness of its people, is the security and neutrality of the interoceanic routes, which lead through it.” A few days later in 1858 he stated: “The general policy of the United States concerning Central America is familiar to you, we desire to see the isthmian routes opened and free to the commerce and intercourse of the world.”

There was a shade of change in our statements, under Grant's administration and that of Hayes. We then began to talk of an American canal for Americans; and that our interests would not allow a canal to be under the control of any foreign power. About this time the French people were negotiating for a route for a canal. Mr. Everts, secretary, made one statement in 1880 worthy of close consideration: He said all the

: treaties in the world fail to be a safeguard in a time of great conflict. What he forsaw was the fact that treaties are for peace; and "do as you can" is the rule for war.

« PreviousContinue »