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Neutrality, Belligerency, and the Panama Canal

Published online by Cambridge University Press:  12 April 2017

Norman J. Padelford
Norman J. Padelford*
Affiliation:
Fletcher School of Law and Diplomacy
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Extract

The Panama Canal was originally conceived as a highway for peaceful commerce between nations. The extensive use of the Canal by the vessels of many countries indicates that it has fulfilled such a function. At the same time the Canal has played a part in non-peaceful intercourse. It has facilitated the transportation of materials of war and of troops. It has enabled "vessels of war to move rapidly from ocean to ocean, thus affecting naval strategy. From the commencement of its undertaking the United States Government has regarded the Panama Canal as an instrument of national defense. These facts serve to underline the importance of the Canal to all maritime states in war as well as in peace.

Type
Research Article
Information
American Journal of International Law , Volume 35 , Issue 1 , January 1941 , pp. 55 - 89
Copyright
Copyright © American Society of International Law 1941

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References

1 See Padelford, N. J., “American Rights in the Panama Canal,” This Journal, Vol. 34 (1940), pp. 417–422 , 431–432Google Scholar.

2 Arts. II and III of the Convention with Panama of 1903, granting use and control of the land and waters in the Canal Zone to the United States, unquestionably placed the Panama Canal and the Canal Zone within the “jurisdiction” of the United States, regardless of the question of sovereignty. Cf. this Journal, he. cit., pp. 423–428. Ports and waters of the Canal Zone were subjected to the same neutrality rules as the ports and waters of the continental United States. Panama Canal Record, Vol. 8 (1914), p. 295.

3 Department of State Bulletin, Vol. I, p. 203.

4 The first one was dated Aug. 4, 1914, and applied to the war between Austria-Hungary and Serbia, Germany and Russia, and Germany and France. 38 U. S. Statutes at Large (hereafter cited as Stat.) 1999. For citations to other identical proclamations see F. Deák and P. C. Jessup, A Collection of Neutrality Laws, Regulations and Treaties of Various Countries (Washington, 1939), Vol. II, p. 1204.

5 U. S. Code, Title 18, Chap. 2.

6 The reference to treaties in force must necessarily have involved a recognition of a continued application to the Canal of the neutralization rules contained in Art. III of the Hay-Pauncefote Treaty. 32 Stat. 1903. This Journal, toe. cit., p. 418.

7 Instructions by the Secretary of War, Aug. 22, 1914. MS. Department of State. For analysis of the Rules and Regulations for the Operation and Navigation of the Canal, see this Journal, loc. cit., pp. 611–615.

8 38 Stat. 2039. Consideration of the issuance and terms of such a proclamation commenced immediately after the declaration of war by Great Britain upon Germany as a result of an inquiry by the British Embassy as to the regulations which would be in force at the Canal for belligerent vessels of war. MS. Department of State, File 811 f. 812/581.

9 Memorandum of the Joint State-Navy Neutrality Board, dated Oct. 20, 1914. MS. Department of State.

10 The Joint State-Navy Neutrality Board concluded, as set forth in the Memorandum referred to above, that “the fact that the rules [Hay-Pauncefote] are not quoted does not in any degree change their binding character as a part of an accomplished treaty. . . . The rules . . . as they exist in the treaty, do not exactly apply to all conditions governing the exercise of neutrality at the Canal Zone.” Ibid.

11 The analysis of the proclamation prepared by the Joint State-Navy Neutrality Board remarked: “ I t is important in every way insofar as proper regulations can insure it, that the Panama Canal Zone shall be as far removed from belligerent operations as possible.” Ibid.

12 Ibid.

13 Vessels of the first class embraced vessels of war of a belligerent. Such a vessel was defined in Rule 1 as:

“a public armed vessel, under the command of an officer duly commissioned by the government, whose name appears on the list of officers of the military fleet, and the crew of which are under regular naval discipline, which vessel is qualified by its armament and the character of its personnel to take offensive action against the public or private ships of the enemy.”

Vessels of the second class were stated by Rule 2 to include:

“every vessel, belligerent or neutral, whether armed or not, that does not fall under the definition of Rule 1, which vessel is employed by a belligerent Power as a transport or fleet auxiliary or in any way for the direct purpose of prosecuting or aiding hostilities, whether by land or sea; but such treatment shall not be given to a vessel fitted up and used exclusively as a hospital ship.”

Quaere: Would such a classification include a neutral private vessel chartered by a belligerent chartering firm, itself under government control, to carry a cargo of munitions from another neutral country to a port of the belligerent?

14 Rule 3 of the Hay-Pauncefote Treaty provided such treatment only for belligerent vessels of war and prizes.

15 Cf. Art. 19 of the Hague Convention on the Rights and Duties of Neutral Powers in Naval War. 36 Stat. 2415.

16 Cf. Rule 4 of the Hay-Pauncefote Treaty.

17 Cf. Rule 5 of the Hay-Pauncefote Treaty, and Arts. 12 and 16 of the Hague Convention on the Rights and Duties of Neutral Powers in Naval War. The 24-hour limit was construed as in addition to the time occupied in transit of the Canal.

18 For regulation of radio in and about the Canal Zone, see this Journal, loc. cit., pp. 627–631. This rule supplemented an Executive Order, dated Aug. 5, 1914, which had prohibited “all radio stations within the jurisdiction of the United States of America . . . from transmitting or receiving for delivery messages of an unneutral nature, and from in any way rendering to any one of the belligerents any unneutral service, during the continuance of hostilities.” Naval War College, International Law Topics, 1916, p. 87.

19 This proposition was adopted on the assumption that inasmuch as the Hay-Pauncefote Treaty and the Canal Convention had not restricted the exercise of jurisdiction by the United States in the airspace above the Canal and Canal Zone, the United States could “with the greater propriety establish its own position in the matter.” For discussion of regulation of aircraft in the vicinity of the Panama Canal, see this Journal, loc. cit., pp. 631–635.

20 “The Republic of Panama has passed no laws regarding the rights and duties of neutrals in time of war, nor regarding the fulfillment of the obligations of neutrality. . . . Panama has made no proclamation of neutrality since its independence.” Memorandum by the consulting attorney of the Panama State Department, dated July 22, 1935, transmitted with note of July 25, 1935, to American Minister at Panama, and enclosed in Des-patch No. 144, Aug. 1, 1935, from the American Minister to the Secretary of State. F. Deák and P. C. Jessup, op. cit., p. 862.

21 The Joint State-Navy Neutrality Board in Washington desired an agreement which would make “one neutral jurisdiction” of the Republic and the Canal Zone (MS. Department of State), but the agreement as concluded was more limited in scope. The text was as follows:

“Protocol of an agreement concluded between Honorable Robert Lansing, Acting Secretary of State of the United States, and Don Eusebio A. Morales, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Panama, signed the tenth day of October, 1914.

“The undersigned, the Acting Secretary of State of the United States of America and the Envoy Extraordinary and Minister Plenipotentiary of the Republic of Panama, in view of the close association of the interests of their respective Governments on the Isthmus of Panama, and to the end that these interests may be conserved and that, when a state of war exists, the neutral obligations of both Governments as neutrals may be maintained, after having conferred on the subject and being duly empowered by their respective Governments, have agreed:

“That hospitality extended in the waters of the Republic of Panama to a belligerent vessel of war or a vessel belligerent or neutral, whether armed or not, which is employed by a belligerent power as a transport or fleet auxiliary or in any other way for the direct purpose of prosecuting or aiding hostilities, whether by land or sea, shall serve to deprive such vessel of like hospitality in the Panama Canal Zone for a period of three months, and vice versa.” 38 Stat. 2042.

22 In the first case the Admiralty collier Mallina arrived without the requisite bill of health from the American consul at her last port of call. For this a fifty-dollar fine was paid. Before obtaining clearance from Canal officials her master received a message ordering the vessel to sea immediately. The vessel left without proper clearance. This action infringed the customs laws.

The second case concerned the steamship Protesilaus, which was forced to dismantle her wireless apparatus. Department of State, Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties (European War, No. 2, 1915, Washington, 1915), p. 23.

23 Ibid.

24 The Annual Reports of the Governor of the Panama Canal, 1915,1916,1917, show that up to April 1, 1917, 2,335 foreign vessels passed through the Canal. No German, Austrian or Turkish vessels were recorded as being included in these numbers.

25 Panama Canal Record, Vol. 8 (1914), p. 295.

26 38 Stat. 1226. The President was authorized to employ such part of the land and naval forces as might be necessary to enforce the law. See Rules 3, 4, 10, 11 of the 1914 Rules and Regulations for the Operation and Navigation of the Panama Canal and Approaches Thereto. See also Title V of Act of June 15, 1917, infra.

27 No mention is made of the passage of belligerent armed merchant vessels through the Canal in any of the annual reports of the Superintendent of the Marine Division to the Governor, or in any of the annual reports of the Governor for the years 1914–1917. There is no reference to the matter in any of the issues of the Panama Canal Record, and no state papers have been found mentioning armed merchant vessels in connection with the Canal prior to January, 1917.

28 For. Rel., 1914, Supp., pp. 611–612; ibid., 1916, Supp., pp. 244–248. These memoranda made no reference to belligerent armed merchant vessels at the Panama Canal.

29 MS. Department of State.

30 MS. Department of State.

31 Lansing to the Secretary of War, Feb. 3, 1917. Ibid.

32 Memorandum issued by the Panama Canal office in Washington, Feb. 1, 1917. MS. Department of State. The Governor was directed to make a careful investigation in each case to determine whether the armaments were in fact “for defensive purposes only.” The foreign governments were permitted to file the necessary assurances through either their diplomatic or consular officers.

33 For. Rel., 1914, Supp., p. 606; ibid., 1915, Supp., pp. 605, 848–851.

34 The records of goods carried through the Canal do not include “contraband,” “armaments,” “munitions” or “materials of war” as separate categories. They do show, however, that large quantities of nitrates, petroleum, manufactured iron and steel goods, copper, chrome ore, naphtha, explosives, etc., were carried through the Canal to belligerent destinations. See table in Panama Canal Record, Vol. 10 (1916–1917), p. 462.

35 Publications of the Permanent Court of International Justice, Series A, No. 1, p. 28.

36 Executive Order of May 9, 1904 (Ex. O., pp. 20, 23); sec. 10 of the Panama Canal Act of 1912 (37 Stat. 560). See comment in this Journal, loc. cit., pp. 607–608.

37 39 Stat. 527.

38 Ex. O., p. 220.

39 40 Stat. 1652. Italics inserted. No mention was made of the Canal Zone in the Joint Resolution of Congress declaring war. 40 Stat. 1.

40 Text in Naval War College, International Law Documents, 1917, p. 196. When the United States inquired as to the implications of the proclamation, it was advised that the proclamation would be treated by the Government of Panama as “a declaration of war in its legal effect.” For. Rel., 1917, Supp., Vol. I, pp. 248–250. Panama later issued a declaration of war against Austria-Hungary, Dec. 10, 1917. Naval War College, op. cit., pp. 196–197.

41 In 1912 the Government of Panama granted permission for the armed forces of the United States to reconnoiter in the territory of the Republic in order to study the terrain and strategic factors there in relation to the Canal, and in order to make plans for any contingency which might arise affecting the security of the Canal. Republica de Panama, Sec. Rel. Ext., Memoria, 1912, pp. 49–50. On Feb. 7,1917, the Foreign Minister of Panama had advised the United States that Panama would cooperate in allowing American troops to operate in the territory of Panama for the defense of the Canal. Ibid., 1918, pp. 82–83.

42 MS. Department of State.

43 MS. Department of State.

44 Sen. Doc. 474, 63d Cong., 2d Sess., p. 89.

45 Order of April 9,1917, Ex. O., pp. 224–225. Control was assumed on April 10,1917.

46 General Orders No. 1, April 10, 1917. Panama Canal Record, Vol. 10 (1916–1917), p. 429.

47 Army control was terminated on Jan. 25, 1919, although the state of war with Germany continued thereafter. Ex. O., p. 251.

48 Order of April 4, 1917. Panama Canal Record, Vol. 10 (1916–1917), p. 419.

49 Governor’s Circular No. 643–37, April 20,1917. Ibid., p. 442. Full details of the patrol system are to be found only in the records of the Navy Department. It may be said that there were in reality two patrols: one maintained inside the defensive sea area, the other outside of it. The task of the outside patrol was to hail and halt all vessels proceeding to the area. In day time vessels were held outside the area until boarded by the Canal authorities and released by them. At night the patrol directed all vessels to lie to or keep clear of the entrances to the area until boarded in the morning. MS. Navy Department. See Acts of March 4, and May 22,1917, 39 Stat. 1168,1193; 40 Stat. 84, 89. See also Executive Order No. 2692, Aug. 27,1917, Ex. O., p. 227. The defensive sea areas were terminated by order of Jan. 25,1919, Ex. O., p. 251; Panama Canal Record, Vol. 12 (1919–1920), pp. 147, 336.

50 The Act of March 4, 1917, provided for a fine of not more than $5,000, or imprisonment not exceeding five years, or both. The Act of May 22, 1917, gave the District Court of the Canal Zone jurisdiction of offenses relating to such actions.

51 Admission into the defensive sea area did not necessarily mean that a vessel had thereby received permission to enter and pass through the Canal. That remained a separate procedure.

52 The Supreme Court of the United States has sustained the thesis that “all Governments for the purpose of self-preservation in time of war . . . exercise an authority beyond this [i.e., the territorial] limit.” Manchester v. Massachusetts, 139 U. S. 240, 257 (1891). The Research in International Law at the Harvard Law School, in its draft convention on Territorial Waters, has concluded: “On the high seas adjacent to the marginal sea . . . a State may take such measures as may be necessary for the enforcement within its territory or territorial waters of its customs, navigation, sanitary or police laws or regulations, or for its immediate protection.” Art. 20. This Journal, Spl. Supp., Vol. 23 (1929), pp. 333–334. Professor Charles Cheney Hyde in his International Law (Boston, 1922), Vol. I, p. 106, says: “When acts of self-preservation on the part of a State are strictly acts of self-defense, they are permitted by the law of nations, and are justified on principle, even though they may conflict with the normal rights of other States.”

It would be difficult, all circumstances considered, to deny that the restrictions imposed upon foreign vessels in the defensive sea areas off the terminals of the Panama Canal were reasonable. In Church v. Hubbart the United States Supreme Court expressed the opinion that if restrictions imposed upon foreign vessels on the high seas by littoral states “are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise. If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to.” 2 Cranch 187 (1804).

53 There were some difficulties with Panama on account of the improper entrance of Panama subjects into the areas, but the areas as such were not protested. Annual Report of the Governor of the Panama Canal, 1918, p. 34.

54 April 26, 1917. MS. Department of State.

55 40 Stat. 1667.

56 In a letter to the Secretary of War, April 13, 1917, Secretary Lansing expressed the view that “the ships of the Entente Powers should not receive different treatment from that imposed by the President’s Proclamation of November 13, 1914. . . .” MS. Department of State.

57 Secretary Lansing took the position in a letter addressed to the Secretary of War, April 13, 1917, that the Rules of the November, 1914, Proclamation of Neutrality for the Canal Zone should not in 1917 apply to “enemies or their Allies, on the ground that while the Canal is yet in the process of construction and has not been officially opened to the world, and by virtue of the fact that the United States is solely responsible for the protection, operation, and control of the Canal, the vessels of the enemies of the country exercising sovereign rights over the Canal should not be allowed to endanger the safety and usefulness of this great waterway.” MS. Department of State.

No German or Austrian vessel approached the Canal under its own control asking for permission to effect transit during the time the United States was engaged in hostilities with those nations. What might have happened had such a vessel sought transit is a hypothetical question which cannot be answered. (Annual Report of the Governor of the Panama Canal, 1917, pp. 126–127; ibid., 1918, p. 137; ibid., 1919, pp. 122–123.)

The record of vessels passing through the Canal, contained in the Annual Report for 1917, shows that in April and May six German vessels effected transit. The 1918 Annual Report reveals that these vessels had been seized by the United States at Canal Zone ports at the outbreak of war; that they were passed through the Canal under the command of American officers and engineers; and that the reason they were recorded as being German was on account of the fact that at the time of transit their registry had not been legally changed to the United States. Annual Report, 1918, p. 137. During the war a number of German ships under British Admiralty control passed through the Canal, but were recorded as British tonnage. Panama Canal Record, Vol. 14 (1920–1921), p. 60.

58 U. S. Navy Department, Instructions for the Navy of the United States Governing Maritime Warfare, June, 1917 (Washington, 1924), Sec. IX, par. 62; G. G. Wilson, Handbook of International Law (3d ed., St. Paul, 1939), pp. 318, 327, 331–335.

59 40 Stat. 75. Possession was taken of a large number of German vessels by order of June 30, 1917. Ex. O., p. 226. This included the German steamships Grunewald, Prinz Sigismund, Savoia, and Sachsenwald seized in Colon harbor. Panama Canal Record, Vol. 10 (1916–1917), p. 489. Title was taken in all such vessels by Executive Order of Nov. 24, 1919. Ex. O., p. 255. 40 Stat. 913, Sec. 11, conferred upon the President power to “requisition for military purposes, or for any other national purpose connected with or arising out of the present war, the temporary possession of any vessel.” Possession in such instances was to cease upon termination of the war.

60 Wilson, G. G., “The Taking Over and Return of the Dutch Ships,” This Journal, Vol. 24 (1930), p. 694 Google Scholar.

61 For. Rel., 1918, Supp. 1, Pt. II, p. 1433.

62 Ibid., p. 1536.

63 Ibid., 1917, Supp. 2, Vol. II, p. 1268.

64 Ibid., pp. 1269–1270.

65 Ibid., pp. 1270–1271.

65a The first troopship arrived at the Canal Aug. 30, 1917. Others followed during the ensuing fifteen months. Where necessary, they were fueled. Departures from the jurisdiction normally took place within 24 hours. MS. Navy Department.

66 In line with these British requests was an application addressed to the Government of Panama in July, 1917, for a relaxation of the 24-hour rule for the stay of British war vessels off Taboga Island in the Bay of Panama. For. Rel., 1917, Supp. 2, Vol. II, p. 1268. Inasmuch as the matter related to the terms of the Lansing-Morales Protocol of Oct. 10, 1914, it was brought to the attention of the United States. The Government of Panama expressed the opinion, in so doing, that it was disposed to accede to the request. Ibid., p. 1269. The Panaman Secretary of Foreign Affairs stated his opinion that the Island was so far from the Canal that it was not covered by the neutrality of the latter. He also added his belief that the Lansing-Morales Protocol did not then restrict action by Panama on account of the fact that that agreement had been made for the purpose of maintaining neutral obligations of the two governments which had disappeared by virtue of their having affiliated themselves with one of the belligerent groups. No objection was seen by the Government of the United States to Panama’s accession to this request, which was granted informally. Ibid., pp. 1274–1277.

66a MS. Navy Department.

67 American Minister to Panama, W. J. Price, to Secretary of State, May 3, 1917. MS. Department of State.

68 40 Stat. 217, 220.

69 Failure to comply with any regulation issued under the authority of this section, or obstructing or interfering with the exercise of powers conferred upon the Governor of the Panama Canal by this Act, exposes the vessel and all of its equipment and furnishings to seizure and forfeiture to the United States, and persons guilty of causing such acts to fine and/or imprisonment. (Sec. 2.)

70 Sec. 1 of Title I provides that whoever obtains information concerning any place connected with the national defense of the United States, or under its jurisdiction or control, “with the intent or reason to believe that the information to be obtained is to be used to the injury of the United States or to the advantage of any foreign nation,” or having lawful possession of the same, through negligence allows its leakage, shall be punished by fine of not more than 110,000, or by imprisonment for not more than two years, or both. Flying over, photographing, or sketching defenses in any manner or by any means, as well as receiving and transmitting any information concerning them are specifically forbidden.

Sec. 2 provides that whoever directly or indirectly is party to communicating, delivering or transmitting information relating to the national defense to any foreign government or its agents shall be punished by imprisonment of not more than 20 years in time of peace, and 30 years or death in wartime.

Sec. 3 prescribes a fine of $10,000, or imprisonment for 20 years, or both, for willfully circulating false reports in order to interfere with the operations of the United States or to promote the success of its enemies; for causing insubordination in the military or naval forces in time of war; and for obstructing the recruiting or enlistment services of the United States. This was amended by an Act of May 16, 1918.

Sees. 4 and 5 relate to conspiracy, and to harboring persons known to have committed or suspected of committing an offense under this title, and provide penalties for both.

Sec. 6 gives the President permission in time of war or of national emergency to designate any place “in which anything for the use of the army or navy is being prepared or constructed or stored as a prohibited place.”

Other sections of Title I define jurisdiction for purposes of enforcement and prosecution.

71 Sec. 3, Title II, and Title III. The latter ordains punishment for setting fire to, tampering with, or placing explosives upon vessels engaged in foreign commerce. Title IV institutes punishment for attempting to interfere with the exportation of articles of commerce to foreign countries. Title VIII prohibits the commission of or conspiracy to commit any act designed to disturb, or actually disturbing the international relations of the United States.

These provisions supplement Sec. 10 of the Panama Canal Act of 1912, according to which it is unlawful and a felonious offense to injure or to obstruct any part of the Panama Canal, its locks or approaches. 37 Stat. 560. The sections of the 1917 Act referred to may also be said to complement the Rules and Regulations for the Navigation of the Canal, issued on July 9, 1914. Ex. O., p. 178. An Act of April, 1918, made it unlawful and punishable to wilfully injure or destroy any war material, premises, or utilities. 40 Stat. 533. Such premises would include the Panama Canal and many of the works and establishments in the Canal Zone.

72 U. S. Code, Title XVIII, Chap. 2. This includes the authorization to withhold clearance to any vessel believed to be about to depart from the jurisdiction of the United States to carry fuel, arms, ammunition or dispatches to a warship or auxiliary of a belligerent in violation of the laws and obligations of the United States, or about to depart to cruise or commit hostilities against a foreign state or people with which the United States is at peace. It also makes it unlawful to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war, with any intent or under any agreement that it shall be delivered to a belligerent nation or its agent or officer. A penalty of 110,000, or imprisonment of not more than five years, or both, plus forfeiture of the vessel and all equipment and cargo is ordained for violation of any of the sections by taking out, or attempting to take out any such vessel. Likewise a heavy punishment is prescribed for making any territory under the jurisdiction of the United States a base of operations against a state or people with which the United States is at peace.

73 Title VI renders it unlawful to export arms or other articles in violation of law, or in contravention of a presidental proclamation forbidding export in time of war in which the United States is belligerent.

74 Sec. 1 of Title II, 40 Stat. 217, 220.

75 Rule 6, 1914 Rules and Regulations for the Operation and Navigation of the Panama Canal. Ex. O., p. 178.

76 40 Stat. 411. The Act applied to “all lands and waters, continental or insular, in any way within the jurisdiction of the United States or occupied by the military or naval forces thereof.” (Sec. 2.)

77 For. Rel., 1917, Supp. 2, Vol. II, pp. 1277–1282. Panama Canal Record, Vol. 11, (1917–1918), pp. 145, 283.

78 Ibid., Vol. 12 (1918–1919), pp. 305–306.

79 For. Rel., 1917, Supp. 2, Vol. II, pp. 1281–1282; Panama Canal Record, Vol. 11 (1917–1918), pp. 145, 283. Bunker license regulations operated to detain shipping more than all other defense measures combined. In September, 1918, vessels transiting the Canal faced a delay on the average of from 24 to 36 hours. Decisions regarding application of the regulations and clearance were made locally except in cases where the vessel’s status was not satisfactory. MS. Navy Department.

80 MS. Department of State.

81 For. Rel., 1918, Supp. 2, pp. 232–233.

82 Secretary of State Lansing instructed the American Minister to Panama to inform that government that “this Government will hold Panama harmless against loss on account of having heretofore interned persons in conformity with the Government’s desire, provided this Government shall be kept informed of the proceedings of claimants and be satisfied that the Government of Panama resisted their claims in good faith.” Ibid., pp. 233–234.

83 Ex. O., p. 230. “17. An alien enemy shall not enter or be found within the Panama Canal Zone.”

84 40 Stat. 531. Cf. Revised Stats., Sec. 4067.

85 For. Rel., 1918, Supp. 2, pp. 234–235. Panama, Sec. Rel. Ext., Memoria, 1918, pp. xiii–xiv.

86 For. Rel., he. cit., pp. 235–236.

87 Ibid., p. 243. The Secretary cited Arts. 1, 7, and 23 of the Canal Convention in support of his contention. Mr. Lansing also argued on the basis of analogy between removal of prisoners of war and removal of these interns, which would seem to vitiate his effort to treat these persons as civil interns. 88 Ibid., pp. 243–244.

89 McCain, The United States and the Republic of Panama (Durham, 1937), p. 201.

90 Act of May 7, 1917, 40 Stat. 39.

91 N. J. Padelford, “The Panama Canal in Time of Peace,” he. cit., pp. 627–635. It may be pointed out that from May 12, 1917, until Nov. 15, 1918, Canal Zone radio stations refused radio communications with merchant vessels, save when they were off the terminals of the Canal and in the Canal. This was done in the interests of the safety of such vessels, and to leave the air free for traffic with war vessels. Governor’s Circular No. 643–38. Panama Canal Record, Vol. 10 (1916–1917), p. 483; ibid., Vol. 12 (1918–1919), p. 147.

92 42 Stat. 105. The Treaty of Berlin with Germany, which entered into force Nov. 14, 1921, noted in its Preamble the Resolution of July 2, 1921, but did not mention the establishment of peace in its operative provisions. See Hudson, Manley O., “The Duration of the War between the United States and Germany,” Harvard Law Review, Vol. 39 (1926), pp. 1020–1045 CrossRefGoogle Scholar.

93 Dec. 23, 1918, Presidential Proclamation No. 1506 annulled and rescinded certain regulations prescribing the conduct of alien enemies. Ex. O., p. 250. Presidential Order No. 3032, Jan. 25, 1919, terminated Army control of the Canal and Canal Zone. Ibid., p. 251. Order No. 3027, Jan. 25, 1919, revoked orders establishing the defensive sea areas. Ibid. Department of State Order of July 12, 1919, relaxed the requirements concerning the travel of nationals and of aliens. Ibid., p. 252. Presidential Proclamation of July 31,1919, abrogated the regulations of Feb. 28,1918, which had made the whole of the Panama Canal Zone a zone of military operations closed to flight by civilian aircraft. Ibid., p. 254. The Joint Resolution of Congress of March 3,1921, declared that certain Acts of Congress, Joint Resolutions and Proclamations which had been made for the duration of a state of war should be construed and administered as if the war had ended and the national emergency ceased to exist. 41 Stat. 1359.

94 Report of the Marine Superintendent, Annual Report of the Governor of the Panama Canal, 1919, p. 117.

95 Ibid., 1920, pp. 113–114. 36 German vessels were recorded as having passed through the Canal by July 1, 1921, ibid.; and ibid., 1921, pp. 110–111.

96 Compiled from Annual Reports of the Governor of the Panama Canal, 1914–1920.

97 It is interesting to compare with these figures of 6,669 foreign and 3,715 American vessels using the Canal during the war years 1914–1920, figures for subsequent six-year periods. During the years 1920–1926, 12,673 foreign and 11,845 American vessels passed through the Canal. In the next six years a further increase was registered as 19,207 foreign and 15,357 American transits were recorded. Ibid., 1920–1932.

98 See statement of steamship companies and masters on the expeditious handling of vessels during the war. Panama Canal Record, Vol. 10 (1916–1917), p. 463.

99 On various occasions the President invoked and applied laws embargoing the shipment of arms and munitions of war from the United States, but the proclamations did not preclude the carriage of such commodities through the Panama Canal.

100 Proclaimed on July 27, 1939. U. S. Treaty Series, No. 945; this Journal, Supp., Vol. 34 (1940), pp. 139, 148.

101 Department of State Bulletin, Vol. I (1939), p. 84.

102 Cf. note 41 supra.

103 U. S. Treaty Series, No. 945, pp. 63–67; this Journal, Supp., toe. cit., p. 157. These notes were made “accessory” to the treaty and attached to it in its ratified form. See also exchange of notes dated July 25, 1939. Ibid., pp. 68–69. See Sen. Ex. Rep. No. 5, 76th Cong., 1st Sess., pp. 4,5; also Cong. Record, July 24,1939, pp. 9828–9833. Senator Pittman stated in the Senate that the United States is the party to determine when an emergency exists which requires consultation and/or immediate action. Ibid., pp. 9833–9834, 9837.

104 In 1938 the Secretary of War said: “ I t has become apparent that the need for a third system of lock chambers may come much sooner than heretofore contemplated on account of defense requirements and it is proposed therefore to speed up studies and investigations during the coming year.” Annual Report of the Secretary of War, 1938 (Washington, 1938), p. 17.

105 53 Stat. 1409.

106 Report of the United States Army Interoceanic Canal Board, H. Doc. No. 139, 72d Cong., 1st Sess.; substantiated in 1936 by Sen. Doc. No. 23, 75th Cong., 1st Sess.; reiterated in Hearings before the Committee on Merchant Marine and Fisheries, “Additional Interoceanic Canal Facilities,” H. Rep., 76th Cong., 1st Sess.; Hearings before the Committee on Interoceanic Canals, “Additional Interoceanic Canal Facilities,” Sen. Doc, 76th Cong., 1st Sess.

107 U. S. Exec. Agr. Ser., No. 160.

108 Proclamation No. 2348. Fed. Reg., Vol. 4 (1939), p. 3809; this JOUKNAL, Supp., Vol. 34 (1940), p. 21.

109 U. S. Code, Title 18, Chap. 2. Forbidden acts include acceptance and issuance of commissions; enlisting; fitting out or arming or setting on foot expeditions; dispatching vessels intended to engage in cruising; making territory a base of operations; the 24-hour rule concerning departure of vessels; restrictions on the use of radio; taking on supplies and fuel; repairs; exercise of belligerent activities “in waters subject to United States jurisdiction”; internment of private and war vessels; and the commission of acts contrary to the laws and treaties of the United States or to international law.

110 The proclamation was issued for neutrality in the state of war existing between Germany and France; Poland; the United Kingdom, India, Australia and New Zealand.

111 Proclamation No. 2350. Fed. Reg., Vol. 4, p. 3821; this Journal, Supp., loc. cit., p. 28.

112 By separate proclamations, the provisions of the Sept. 5th Proclamation were applied equally with respect to the Union of South Africa (Prod. No. 2353, Sept. 8, 1939, Fed. Reg., Vol.4, p. 3851); Canada (Procl. No. 2359, Sept. 10, 1939, ibid., p. 3857); Norway (Procl. No. 2399, April 25, 1940, ibid., Vol. 5, p. 1569); Belgium, Luxemburg, and The Netherlands (Procl. No. 2405, May 11,1940, ibid., p. 1689); Italy (Procl. No. 2408, June 10, 1940, ibid., p. 2191).

113 Italics added.

114 Supra, p. 57.

115 The 1939 Proclamation stipulated that: “If it is wholly impossible, as determined by the Governor,” for belligerent warships to obtain repairs, fuel, and stores from private contractors in the Zone or in Panama, the United States’ agencies in the Canal Zone may effect such repairs or provide such materials, “in order to facilitate the operation of the Canal and its appurtenances.” The repair facilities and docks “belonging to the United States” in the Canal Zone might not be used by a “public vessel of a belligerent, except when necessary in case of actual distress . . . and only to the degree necessary to render the vessel seaworthy.”

116 The exclusion of belligerent aircraft was renewed in the 1939 Proclamation. The provisions of this proclamation, as well as of the general proclamation of neutrality, were made additional to the Rules and Regulations for the Operation and Navigation of the Panama Canal of Sept. 25, 1925, as amended.

An Executive Order (No. 8233) of Sept. 5, 1939, prescribed the duties to be performed by the Governor of the Panama Canal in the Enforcement of the Neutrality of the United States. Fed. Reg., Vol. 4, p. 3822. This was applied by subsequent orders “equally t o” Canada, South Africa, Norway, Belgium, Luxemburg, The Netherlands, and Italy. Ibid., pp. 3863, 3889; ibid., Vol. 5, pp. 1570, 1691, 2193.

117 New York Times, Dec. 26, 1939.

118 Ibid., Dec. 27, 1939. The basis of the protest was not indicated. See ibid., Feb. 22, 1940, for British defense of their action in carrying prisoners through the Canal on board a prize.

119 For examination of law on the subject of transport of prisoners through neutral waters, see editorial comment, “Was Norway Delinquent in the Case of the Altmark?” by Edwin Borchard, this Journal, Vol. 34 (1940), p. 289.

120 New York Times, Jan. 22, 1940.

121 Exec. Order No. 8234, Fed. Reg., Vol. 4, p. 3823; this Journal, Supp., Vol. 34 (1940), p. 31.

122 Exec. Order No. 8382, Fed. Reg., Vol. 5, p. 1185. The penalty for violation was declared to be the punishment provided for in Sec. 9 of Title II of the Canal Zone Code. These regulations were made additional to the Rules and Regulations Governing Navigation of the Panama Canal and Adjacent Waters of 1925, Exec. Order No. 4314, Sept. 25,1925. Ex. O., Supp. X, pp. 382–401. See Padelford, “The Panama Canal in Time of Peace,” this Journal, loc. cit.

123 Cit. supra.

124 Fed. Reg., Vol. 4, p. 3851.

125 Proclamation No. 2412. Ibid., Vol. 5, p. 2419.

126 Ibid., p. 3393.

127 Pending action by the Governor, they were authorized to detain vessels.

128 Small craft operating in Canal Zone waters were required by Sec. 6 of the Regulations to possess a license which might be revoked for any infraction of the laws and orders relating to this emergency, or for any action inimical to the interests of the United States.

129 Boston Herald, July 19, 1940.

130 Boston Traveler, Sept. 20, 1940. The steward is reported to have pleaded guilty to possessing the camera, and Captain Yajikima to failure to take possession of the camera as required.

131 Exec. Order No. 8251. Fed. Reg., Vol. 4, p. 3899; this Journal, Supp., Vol. 34 (1940), p. 32. Amended regarding applications by Exec. Order No. 8271, Oct. 16, 1939, Fed. Reg., Vol. 4, p. 4277. The Department of State issued regulations pursuant to this order restating its substance on Oct. 10, 1939. Department of State Bulletin, Vol. I, p. 379.

132 Padelford, N. J., “The Panama Canal in Time of Peace,” This Journal, Vol. 34 (1940), pp. 633–634 Google Scholar.

133 Exec. Order No. 8232. Fed. Reg., Vol. 4, p. 3812.

134 Proclamation No. 2371. Ibid., p. 4295.

135 Proclamation No. 2375. Ibid., p. 4494; this Journal, Supp., Vol. 34 (1940), p. 56.

136 The November 4th Proclamation applied to the submarines of all states then belligerent. The prohibition was extended in 1940 to cover such craft belonging to Norway, Belgium and the Netherlands, and Italy.

137 Pub. Res. No. 54, 76th Cong., 2d Sess.; Dept. of State Bulletin, No. 4, 1939, p. 453; this Journal, Supp., toe. cit., p. 44. Thus, subsequent to the issuance of the proper proclamation, no American vessel might carry passengers or cargo from Canal Zone ports to any foreign state named; no goods might be exported or transported from the Canal Zone [emanating therefrom and not in interoceanic transit in foreign bottoms] to a belligerent state until all right, title and interest had been divested by Americans; no citizens of the United States might proceed from the Canal Zone to a combat area or take passage on a belligerent vessel from a port in the Canal Zone except on the authorization of the Governor; no purchase, sale or transaction of securities of a belligerent state might take place in the Canal Zone [except possibly between foreigners on board foreign vessels in transit through the Canal]; no funds might be solicited in the Canal Zone for the benefit of any named state; restrictions might be imposed upon the departure of vessels believed to be “about to carry fuel, men, arms, munitions, implements of war, supplies, despatches, or information to any warship, tender, or supply ship” of a belligerent [presumably this must be read in the light of the treaty requirement regarding free passage of vessels of commerce and of war carrying goods, men or information in transit, taken on or acquired prior to entry of the waters of the Panama Canal]; restrictions might be established regarding the entrance and departure of submarines and armed merchant vessels [also presumably subject to the treaty agreement to allow free passage to vessels of commerce and of war]; registration of exports of munitions from the Canal Zone with the National Munitions Control Board might be required.

Proclamation No. 2374, Nov. 4, 1939, declared the law operative for the present war. Fed. Reg., Vol. 4, p. 4493. This rescinded Proclamations Nos. 2349,2354,2360, cited above.

Proclamation No. 2376, Nov. 4, 1939, invoked and applied Sec. 3 of the law regarding the establishment of a combat zone. Ibid., p. 4495. Order No. 4 of the Acting Secretary of Commerce, Nov. 17, 1939, instructed the Bureau of Marine Inspection and Navigation that “no clearance shall be granted to any vessel (watercraft or aircraft) of a belligerent state while having on board any citizen of the United States, whether as passenger or member of the crew except in accordance with the rules and regulations prescribed under the authority of the Neutrality Act of 1939.” Ibid., p. 4628. Department of State Order No. 827, Nov. 17,1939, contains regulations relating to travel in combat areas and on belligerent ships. Ibid., pp. 4640–4641. Mention may also be made of the Department of State regulations regarding shipper’s declarations of Nov. 25, 1939. Ibid., p. 4701.

138 52 Stat. 631. Amended by Pub. No. 319, 76th Cong., approved Aug. 7, 1939.

139 Aug. 20, 1940.

140 New York Times, March 4, 27, Nov. 7, 1940

141 Ibid., Sept. 20, 22, 1939, May 31, 1940.

142 Ibid., Aug. 25, 1940.

143 Associated Press dispatch, Sept. 17, 1940.

144 New York Times, June 26, July 9, Aug. 3, 1940. Foreign vessels were warned to approach Canal Zone harbors by special courses. U. S. Navy Department, Hydrograph Office, Notices to Mariners, No. 27, July 3,1940, p. 540, sec. 1753.

145 Notice to Mariners, No. 35, Aug. 28, 1940, p. 691:

“Aug. 20. Special Warning No. 99.—The Panama Canal authorities advise that owing to the changes being made from time to time in the channels leading to the Atlantic and Pacific entrances to the Panama Canal it is unsafe for any ship to enter the ports of Cristobal or Balboa without receiving instructions from the United States Naval vessel stationed outside each entrance. All ships are required to stop near this naval vessel and may not proceed until the necessary instructions have been received.

“Ships disregarding this order do so at their own risk and may be liable for legal action for noncompliance.”