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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The Hay treaty should be construed in connection with the Clayton treaty which is superseded.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 evi. dence is all in favor of full equality to all users. A liberal construction must include America in the clause "all nations."
GEORGE A. TALLEY.
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 other? Can the rules of any treaty or even of international law compel a belligerent to sell war material or commissary stores to its enemy? Such a thing would be altogether absurd. A nation would be guilty of offence against itself, if it passed the opponent's warships through the canal and thus gave comfort and aid to its enemy. Such a proceeding would be wholly impossible. And no treaty could legally provide for such a requirement. A duel is fought on a chosen field, but war is fought wherever destiny appoints. The treaties with England and Panama merely permit “vessels of war of all nations to use the canal.” The term vessels of war here could not mean hostile ships really "engaged in war" against the canal.
The treaty provision is (and this we could do without treaty) that our nation may "maintain such military police as may be necessary to protect the canal against lawlessness and disorder.” And further: that in time of war the canal shall “enjoy complete immunity from attacks and injury." Here is granted full right to maintain and protect the works and all property. Our nation could be neutral between any other nations engaged in war, but there could be no neutrality between nations at war. Therefore neutrality could only apply to the operating nation when it was at peace; if it was engaged in war the other hostile nation could not be neutral and could not use the canal.
But some may say how could we use the canal if at war? On this clear legal and logical ground; that the use of the canal by us would be for the protection of the sovereignty and perpetuity of the nation, hence the protection and perpetuity of the canal itself.
While we are at peace, neutrality requires us to use all nations alike. We are at peace with them and may freely enter into civil contract to carry their war ves
sels through the canal. But when we go to war we cannot be neutral to our antagonist, and there is no known way to compel it until international power is asserted to this end. Neutrality means peace, not war!
A battleship of a friendly nation is not to be distinguished from a merchant ship so far as our relations with them extend; but a ship of war, hostile to the canal would be a moving fortification and a danger to the canal, to our nation and to the world's interest. The canal could only be used for a legal purpose, war against the canal would in every way be illegal and criminal. The very law of necessity and the right of self-protection demand the exclusion of all hostile ships.
GEORGE A. TALLEY.
The words neutrality and neutralization have be come of momentous importance in the Panama canal controversy. Heretofore neutrality, as applied to nations was generally supposed to relate only to a state of war, and meant that a non-combatant should not aid either belligerent nor allow its property to be used for such purpose. For instance: Belgium was made neutral ground between France and Germany. Hostile armies cannot wage war within the territory or waters belonging to a neutral. Neutrality means "attend strictly to your own business and do not intermeddle."
But the Clayton-Bulwer and the Hay-Pauncefote treaties have given an extended meaning to the term neutralization. These apply the word to both peace and war. Many of our ablest diplomats, and those of other countries, construe the word to mean that the users of the canal, individually, should stand on the same footing, no matter what nation or port they hailed from. By using the word neutrality in its full literal sense, and by applying it to both war and peace, there should be little difficulty in finding the meaning, when used in national treaties. It would be thus: All nations are battling for trade, and when they approach a neutral waterway they should find it neutral in fact, not aiding or favoring one above another. Hence neutrality means equality of rights and privileges. When we stop to consider, this has been the common acceptance among English speaking people; for often when persons are engaged in any contest or controversy, a bystander, if