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In suggesting this common law analogy I do not mean that we should, in the domain of international law, adhere blindly to common law principles in determining what shall be deemed to be clothed with an international use. I do say, however, that when international law, following its own guiding principles, has determined that a given waterway should be affected with an international use, that then, as in common law, arguments based on the fact of national construction and ownership should not be allowed to prevail against the practical application of the principle.

Nor have such considerations prevailed. Rivers like the Rhone, Elbe and Danube have been impressed with international character despite the fact that, in portions of their length, they flow through the territory of but one nation. Narrow straits like the Danish Sound have been declared free and open to the world's commerce, though such straits may have been rendered available for commerce only by virtue of expenditure for lights, buoys, etc., made by the proprietary nation. Such instances as these show that when international law applying its own tests decides that national property should be affected with an international use, then practical application of this principle is made inexorably, and claims of national property rights, though theoretically sound, give way before it.

What then are the tests which international law proposes for determining the status of that portion of the earth's surface which here concerns us?

I have already indicated the formulation of the general principle that all navigable water is, prima facie, in time of peace, affected with an international use. And as this principle has developed as the expression of the practical needs and necessities of national life, it is natural that the rigor of its application has varied with the necessities of the case, thus leading to the formulation of narrower, derivative rules framed to meet conditions of unusually acute necessity, which fact accords them more unqualified recognition than the general principle itself. Such a rule is that already referred to, that a waterway connecting open seas must itself be open. This rule, framed as it was to respond to the more special instance of acute necessity on the part of the world's commerce, could hardly have contemplated a situation when its application is as urgent as in the case of the Panama Canal.

Thus international law, following its own guiding principles, apply

ing its own tests, leads to the conclusion that the Panama Canal as a waterway connecting the Atlantic and Pacific Oceans is affected with. an international use.

I desire to draw your attention to one or two other considerations which serve very strongly to reinforce this conclusion.

The circumstances attending the acquisition by the United States of the canal territory are fresh in the minds of all of us. Reduced to essentials, and stripped of pretense, is it not a fact that the United States acquired a portion of the territory of Colombia against her will, for the purpose of the construction of an interoceanic ship canal? Let me again refer to a common law analogy which appears to me to be significant: An individual owns a plot of land indispensable for the construction of a railway. The company can not induce the proprietor to grant the right of way over his territory for a reasonable compensation. The railway company thereupon, by condemnation proceedings, takes the right of way from the proprietor against his will. But the private property thus taken from the owner against his will must be devoted to a public use. Upon this we insist unreservedly. Such a provision is incorporated in the Constitution of the United States and in the constitutions of most of our States. And whenever a State constitution has failed to contain such a provision, the courts have with unanimity held that a principle of such elementary justice must be assumed as underlying our theory of government and system of law.

Shall, then, the United States, in its dealings with foreign nations, abandon this principle? If elementary justice, as between citizen and citizen, and between government and citizen, demands that when property is taken against the individual owner's will the property must be devoted to a public use, can we deny that when as a nation we in time of peace take the property of another nation against its will, that such property must be devoted to an international use? We are not here dealing with a technical rule of common law, but with a broad principle of justice recognized as a basic principle of just and honest dealing.

I believe it a sound principle of international law, as of common law, that the territorial rights of no one nation should be allowed to interfere with the construction of a waterway of tremendous moment to the whole world. But when a nation, claiming, as the United States claimed, to be acting by virtue of such a principle, deprives another

nation of its territory against its will, it is absolutely essential that the property thus taken be devoted to an international use.

I desire to call your attention to yet another principle, namely, that of dedication to a public use. The essentials of such dedication are: 1. That a proprietor indicate by words or acts, as fully as the subject-matter will permit of, an intent to devote a portion of his property to a designated public use.

2. That the public accepts the dedication thus offered.

Applying these principles to the Panama Canal, there can be no question but what the United States has indicated its intent to dedicate the canal as an international highway for the use of the commerce of the entire world. For about seventy-five years we have consistently declared, reiterated and emphasized such a purpose. believe that we have indicated our intent to devote the canal to an international use as fully and as completely as the subject-matter has permitted of.


That is, we have done this prior to the passage of the Panama Canal Act. Here for the first time we see indications of an intent to utilize the canal for purely national ends, as a means to benefit American commerce and to impose upon the world purely American policies. In the Panama Canal Act the United States evinces a desire to revoke its offer to dedicate the canal to an international use. But, could the offer be revoked? Could the dedication be denied?

Once an offer to dedicate is accepted, it cannot be revoked. And such acceptance need not be formal action. It is enough if other nations, relying on the offer to dedicate, change their positions so that, were the offer not carried out, they would suffer loss. The dedicator thereupon becomes estopped from withdrawing his offer. Such acceptance by estoppel is not unusual. In the very nature of the case it frequently occurs that an offer to dedicate is made to a portion of the public which has no properly constituted representative to make a formal acceptance. But individual members of the public, by acting in reliance on the offer, effectually accept it by estopping the offeror from withdrawing his offer.

And so it has been with the Panama Canal. For decades the United States has been holding out to the world its intent to dedicate the canal to an international use. And what nation of the world has not in some way acted or refrained from acting in reliance thereon? Not only have vast sums of money been expended, but treaty rights have

been waived, national policies have been abandoned and new ones adopted in reliance on the declared intent of the United States to dedicate the canal to the world's commerce.

How can we today revoke our promise, declare null and void our dedication? It is impossible. The reliance of the whole world upon our promise has estopped us from withdrawing it. Our offer has been accepted; our dedication is complete.

And what is the significance of our conclusion that the Panama Canal is affected with an international use? When I say that the Panama Canal is affected with an international use, I mean substantially what we mean when we say that private property, such as a railway, is affected with a public use. The proprietor continues to hold title to his property, he is entitled to impose tolls so as to secure a reasonable return upon his investment, he may make reasonable rules looking toward the safe-guarding, preservation and maintenance of his property, but upon him is imposed the positive duty of serving the entire public without discrimination. The correlative right to be so served is accorded the entire public.

And so it is with the Panama Canal. We make rules necessary properly to safeguard and police the canal. We may impose tolls to an extent necessary to secure a reasonable return on our investment. But on what theory can we exclude any class of foreign vessels such as railroad-owned vessels?

Such an exclusion cannot be justified as a refusal to serve competitors, as it applies to all railways and not merely to the few who may be in actual competition with the canal. In any case, it is well established that where property is affected with a public use, no discrimination can be made even against a competitor. I believe this is a sound rule and one equally applicable to property affected with an international use.

But an exclusion of all railway-owned vessels can only be explained as expressing a general public policy opposing railway control of water transportation.

What application has such a policy to the Panama Canal, which is neither a vessel nor a railway nor affected by the ownership of any vessel? Obviously none. To exclude railway-owned vessels from the canal is not to legislate as to the canal, but it is an attempt. to use the canal as an instrument to legislate as to foreign vessels and foreign railways, not properly amenable to our laws. It is leg

islation by indirection similar to the suggested method of compelling stock exchanges to become incorporated by depriving unincorporated exchanges of the use of the mails.

Such legislation, which seeks by indirect means to accomplish what could not be done directly, is only justifiable, if at all, when the legislator has such peculiarly exclusive and absolute control of the instrument he uses that the use to which he puts it cannot be questioned even by those injuriously affected thereby. To use the canal as a club, to impose American policies on the world, implies greater rights therein than would flow from the mere right to legislate as to matters really affecting the canal itself. We have seen that even this latter right does not inhere unqualifiedly in the United States. How much less the right to use the canal as a means for legislating as to foreign vessels and foreign railways!

It is of the essence that an international canal be free from the operation of such national policies.

If it means anything that the canal is affected with an international use, it means that the canal is open to all without discrimination; no class of foreign vessels can be excluded.

The CHAIRMAN. The subject is open for discussion.

Mr. CHARLES G. FENWICK. Mr. Chairman, I gather from the address of Mr. Dulles that he bases his contention that foreign railway-owned vessels could not be excluded from the canal on the general principles of international law rather than on any particular clause of the Hay-Pauncefote Treaty.

Rule 1 of Article IV of the treaty says that no discrimination shall be made in respect of conditions of traffic, and as far as discrimination goes it would seem that the treaty is not violated if foreign railwayowned vessels are excluded from the use of the canal together with American railway-owned vessels. But apart from the treaty, there are the general principles of international law, which forbid one who is in the position of a common carrier from imposing unfair restrictions upon the traffic handled by him. While this development of international law by analogy with the common law of Great Britain and the United States is very instructive, it seems to me that the first clause of Rule 1, that the canal shall be "open and free" to the vessels of all nations, contains a clear prohibition against the imposition.

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