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The Panama Canal in Time of Peace
Published online by Cambridge University Press: 12 April 2017
Extract
The rights secured by the United States through the conclusion of the Hay-Pauncefote Treaty and the Hay-Varilla Convention afforded the United States legal bases upon which to embark upon the excavation, construction, operation and protection of an interoceanic canal in the Isthmus of Panama. They formed a foundation for the erection of a vast edifice of powers and jurisdiction over the Panama Canal, the Canal Zone, and over vessels and persons in and about the Canal.
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References
1 See Padelford, N. J., “American Rights in the Panama Canal,” this Journal, Vol. 34 (1940), pp. 416–442 Google Scholar.
2 33 U. S. Stat. at Large (hereafter cited as Stat.), 429. Generally speaking, all treaties, conventions, and Acts of Congress bearing upon the Panama Canal and Canal Zone, from 1901–1934, may also be found in an official publication of the Canal Administration entitled, Treaties and Acts of Congress Relating to the Panama Canal (Mt. Hope, 1922). Supplements cover the period from 1921–1934. Subsequent to that date, such instruments may be found in The Canal Zone Code (Washington, 1934), and its Supplement (Washington, 1939). This was authorized by Act of Congress, June 19, 1934, and contains “all permanent laws relating to or applying in the Canal Zone.” 48 Stat. 1122. Amendments in 49 ibid., 313, 1905; 50 ibid., 486, 509, 750, 751; 51 ibid., 779. A dispute arose between Panama and the United States Government in 1934 regarding the method of payment of the annual annuity, when the United States ordered the cessation of all payments in gold specie, and Panama refused to accept payment in dollars. New York Times, March 2, 3, 7, 1934. It was agreed in Art. 7 of the 1936 Treaty that the United States might pay in any coin or currency equal to 430,000 balboas in Panaman currency. U. S. Treaty Series, No. 945.
3 Legislative, executive, judicial, and protective functions were combined in and through the office of the President, who has acted through the issuance of proclamations and executive orders. See William K. Jackson, “Administration of Justice in the Canal Zone,” Virginia Law Review, Vol. 4 (1916), p. 7.
4 Executive Order, May 4, 1904. Executive Orders Relating to the Panama Canal (Mt. Hope, 1922) (hereafter cited as Ex. O.), pp. 20–26. When Elihu Root became Secretary of State in 1905, President Roosevelt contemplated placing the Canal Commission under his control, but eventually decided to leave it under the Secretary of War. Jessup, P. C., Elihu Root (New York, 1938), Vol. I, pp. 518–519 Google Scholar. Mr. Jackson, who was formerly District Attorney and Judge of the District Court of the Canal Zone, says that the Order of May 4 was “always referred to in the legal work affecting the Canal Zone as the ‘Canal Zone Bill of Rights.’” Jackson, loc. cit., pp. 3, 4. The ordinances issued by the Isthmian Canal Commission may be found in Laws of the Canal Zone (Mt. Hope, 1922).
5 Ex. O., p. 26. Commissaries for the sale of commodities, supplies, and goods to persons working on or for the Canal, and to vessels calling at the Canal Zone were established at the same time (ibid., p. 34 n.), and the American tariff laws were applied to goods entering the Canal Zone. These measures were protested by Panama. By the Taft Agreement, the United States agreed to restrict sales by its commissaries, to lift its tariff laws from goods entering the Zone from Panama or destined for Panama, and to use Panama postage surcharged with the mark of the Canal Zone on mails emanating from the Zone, in consideration of the lowering of Panama duties, the non-application of Panama tariffs to goods entering or passing through Panama for ultimate sale or use in the Canal Zone, and of the non-application of Panama taxes and duties to fuel or supplies sold to vessels in ports of the Canal Zone. For controversy between the Governments of Panama and the United States, see U. S. For. Rel., 1904, pp. 586–642; McCain, op. cit., Ch. II. The Taft Agreement was carried out in the United States by a series of executive orders of the Secretary of War, dated Dec. 3, 6, 28, 1904, Jan. 7,1905, Jan. 5, 1911. Ex. O., pp. 29–34, 103. The Taft Agreement did not entirely remove the difficulties between Panama and the United States. Negotiations for a new agreement were commenced in 1915, but were not pressed until 1923, when the United States abrogated the Taft Agreement. 42 Stat. 1225; 43 ibid., 1952. For correspondence between Panama and the United States, see For. Rel., 1922, Vol. II, pp. 761–762; ibid., 1923, Vol. II, pp. 638–687; ibid., 1924, Vol. II, pp. 522–527. A treaty to replace the Taft Agreement, signed July 28, 1926, failed to come into force owing to the refusal of the National Assembly of Panama to ratify it. Cong. Rec., 69th Cong., 2d Sess., Vol. 68, pp. 1848–1852; Department of State Press Releases, Aug. 23, 1926. The matter was eventually settled by Arts. 4–5 of the General Treaty of Friendship and Cooperation of 1936.
6 For. Rel., 1904, pp. 640–642, 643. The orders issued in pursuance of the Taft Agreement, together with the various ordinances, laws and regulations issued by the Canal Commission, were confirmed and continued “until Congress should otherwise provide,” by the Panama Canal Act of Aug. 24, 1912. 37 Stat. 560, 569.
7 37 Stat. 560. This Act supplemented rather than supplanted the Act of 1904. Here for the first time the Canal was designated in law as the Panama Canal.
8 In the words of Sec. 7, “The Governor of the Panama Canal shall, in connection with the operation of such canal, have official control and jurisdiction over the Canal Zone … which is to be held, treated, and governed as an adjunct of such Panama Canal.” This relationship is in line with the purpose for which Panama granted the Zone to the United States by Art. II of the 1903 Convention: “The Republic of Panama 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….” 33 Stat. 2234–2235.
9 The Commission was discontinued by Executive Order of Jan. 27, 1914, which also set up the new and permanent organization. This remained, as its predecessor, under the supervision of the Secretary of War. Ex. O., pp. 155–157. Sec. 1 of Act of Sept. 21,1922, 42 Stat. 1004, defines powers of the Governor. Below, p. 610. See Digest of Opinions of the Judge Advocate General of the Army, 1912–1930 (Washington, 1932), Sec. 2140. A memorandum accompanying the order noted that the operation of the Canal logically should be under the supervision of the Secretary of War, and stipulated that the ranking Engineer of Maintenance of the Army Engineer Corps stationed at the Canal should act as Governor of the Panama Canal in the absence or disability of the Governor. Ex. O., pp. 157–158. The present Governor, Colonel G. E. Edgerton, nominated by President Roosevelt on July 5, 1940, previously served as Engineer of Maintenance from 1936. New York Times, July 6, 1940.
10 This was necessary because of the treaty specifications that the Canal should be “opened” on the basis of certain Rules. (Art. III, Hay-Pauncefote Treaty; Art. VIII, Panama Convention.) The Canal was informally opened in August, 1914, but not formally “opened” until July, 1920. See below, pp. 610–611.
11 This end was achieved by providing that vessels engaged in the coastwise trade of the United States should not be charged tolls, and by revising Sec. 4132 of the Revised Statutes, to exclude foreign owned and registered vessels from this trade.
The literature on this subject is well known and extensive. Among the more important documents and treatments bearing on the controversy are the following: “The Panama Canal,” Hearings before the Committee on Interstate and Foreign Commerce, 62d Cong., 2d Sess., House Doc. No. 680 (1912); “Panama Canal Traffic and Tolls,” Senate Doc. No. 575, 62d Cong., 2d Sess.; “Great Britain and the Panama Canal,” Senate Doc. No. 19, 63d Cong., 1st Sess.; “Rule of Treaty Construction,” Senate Doc. No. 31, 63d Cong., 1st Sess.; “Panama Canal Tolls,” House Doc. No. 1313, 62d Cong., 3d Sess.; For. Rel., 1912, pp. 467–489; ibid., 1913, pp. 540–549; ibid., 1914, pp. 317–318; British and Foreign State Papers, Vol. 105 (1912), pp. 366–374; Oppenheim, L., The Panama Canal Conflict between Great Britain and the United States of America (Cambridge, 1913)Google Scholar; Kennedy, C., “Neutralization and Equal Terms,” this Journal, Vol. 7 (1913), pp. 27–50 Google Scholar; Latané, J. H., “Panama Canal Act and the British Protest,” ibid., pp. 17–26 Google Scholar; Wambaugh, E., “Exemption from Panama Tolls,” ibid., pp. 233–244 Google Scholar; papers on the question, American Society of International Law, Proceedings, 1913; Admiral Stockton, C. H., “Panama Canal Tolls,” U. S. Naval Institute Proceedings, Vol. 38 (1912), pp. 493–499 Google Scholar; Baty, T., “Panama Tolls Question,” Yale Law Journal, Vol. 23 (1914), pp. 389–396 CrossRefGoogle Scholar; Root, E., Addresses on International Subjects (Cambridge, 1916), pp. 175–313 Google Scholar; Bunau-Varilla, P., Panama (New York, 1920), pp. 505–527 Google Scholar; Jessup, Elihu Root, op. cit., Vol. II, pp. 262–269.
Executive Order, dated Nov. 13, 1912, prescribed tolls to be charged various classes of vessels. Ex. O., pp. 131–132. Rules of admeasurement contained in Executive Order of Nov. 21,1913. Ex. O., p. 154. Regulations re payment of tolls, Executive Order of April 16, 1914. Ibid., p. 172. See also Act of Aug. 24, 1937, for measurement of vessels using the Panama Canal (50 Stat. 750); and Proclamation No. 2247 of Aug. 25, 1937, prescribing new toll rates (Federal Register, Vol. 2, pp. 1764–1765); Proclamation No. 2248, Aug. 25, 1937, prescribing rules for measurement of vessels (ibid., pp. 1765–1774).
A preliminary protest was lodged with the Government in Washington by the British Chargé, while the Act was still pending. For. Rel., 1912, pp. 469–471.
Professor Jessup, in his biography of Elihu Root, reveals that in a Cabinet meeting, July 17,1912, while the Panama Canal Act was still pending, Root opposed the exemption clause in Sec. 5. The exemption was defended and supported by President Taft, Secretary of State Knox, Secretary of War Stimson and Attorney General Wickersham. Jessup, op. cit., Vol. II, p. 264.
12 For. Rel., 1912, pp. 481, 486.
13 Ibid., 1913, pp. 540–547. Mr. Knox asserted that Congress could, of course, “violate the terms of the Hay-Pauncefote Treaty in its aspect as a rule of municipal law,” or empower the President to do so.
14 For. Rel., 1913, pp. 547–549.
15 See Report of the Superintendent of the Marine Division of the Canal, Annual Report of the Governor of the Panama Canal for the Year ending June 30, 1915 (Washington, 1915), pp. 218–221; Jones, C. L., Caribbean Interests of the United States (New York, 1916), p. 214 Google Scholar. Elihu Root was one of the foremost protagonists of repeal. He believed in the trusteeship of the United States regarding the Canal and responsibility for the observance of the treaty. Jessup, , op. cit., Vol. II, p. 262 Google Scholar. See also forceful arguments of Admiral Stockton, U. S. Naval Institute Proceedings, op. cit., pp. 493–499.
16 House Doc. No. 813, 63d Cong., 2d Sess. ; For. Rel., 1914, p. 317. President Wilson was aided by the strong stand which Senator Root had taken on the issue as early as Jan. 21, 1913. Baker, R. S., Woodrow Wilson, Life and Letters, Vol. IV (New York, 1931), pp. 398–400 Google Scholar. After an informal meeting in New York at which Root and Choate were present, Mr Wilson decided Jan. 24, 1913, to advocate repeal. Ibid., p. 400; Jessup, op. cit., Vol. K, pp. 264–265; C. Seymour, The Intimate Papers of Colonel House, Vol. I (Cambridge, 1926), p. 193. However, he allowed the question to remain in a semi-active condition for a year after taking office, partly because of the platform adopted by the Democratic Convention which had nominated him, which had favored exemption for American vessels, and partly because of the opposition known to exist to repeal in the Senate. Baker, op. cit., pp. 396–400. Writing to Mr. E. F. Baldwin of the Outlook, June 8, 1914, Senator Root said: “The main thing I have been contending for in the Tolls Repeal controversy is that we should not acquire rights upon the Isthmus upon one theory, stated by Mr. Roosevelt, and having got them, hold them on the contrary theory, stated by Mr. Taft. I have no doubt that we were both morally and legally right in what we did, but on Mr. Taft’s theory of our own title to our rights, we were not morally right.” Jessup, op. cü., Vol. II, p. 266. The British Government accepted suggestions made by Colonel House and Ambassador Page that they refrain from pressing the issue. Ibid., p. 403; Seymour, op. cit., pp. 202–203. Mr. Wilson finally decided to push matters after a talk with Colonel House on Jan. 21, 1914. Seymour, op. cit., p. 204. For further review of the fight for passage of the Repeal Act, see Baker, op. cit., pp. 406–418.
17 38 Stat. 385. For Congressional action in passing the bill, see Cong. Rec., Vol. 51, pp. 10076, 10077, 10211–10247, 10274. Members of the British Government expressed pleasure and satisfaction at the manner in which President Wilson had carried through the repeal. Baker, op. cit., pp. 419–420; Seymour, op. cit., p. 206.
Vessels passing through the Canal to Balboa and return, for the sole purpose of having repairs made at the docks and shops there, were exempted from payment of tolls by Order of President Harding, Nov. 17, 1921. Ex. O., p. 292.
18 The first set of Rules and Regulations for the Operation and Navigation of the Panama Canal and Approaches Thereto, was issued on July 9, 1914. Ex. O., pp. 178–193. The Rules may also be found in this Journal, Vol. 10 (1916), Supp., p. 27 et seq. See p. 611 below, for detailed treatment of Rules.
19 See note 5, supra.
20 The Government of Panama contended that the grant of the Canal Zone never envisaged using the Canal Zone for such commercial transactions, and that Panama merchants and concerns were deprived of a lucrative business. See correspondence between Minister Alfaro and Secretary of State Hughes in 1923. For. Rel., 1923, Vol. II, pp. 638–675. The issue was resolved, in part at least, by the negotiations for and the terms of the General Treaty of Friendship and Cooperation of March 2, 1936. By Art. 3 the United States agreed to limit its own commercial activities, and to restrict the establishment of new firms in the Canal Zone likely to injure the economic interests of the Republic. It agreed not to hinder vessels making use of Panaman ports adjacent to the Canal, and undertook to allow Panaman merchants to sell to ships entering Canal waters. U. S. Treaty Series, No. 945. See also exchanges of notes.
21 Amended by Act of Sept. 21, 1922. 42 Stat. 1004.
22 The section merits quotation in full:
“Sec. 10. That after the Panama Canal shall have been completed and opened for operation the governor of the Panama Canal shall have the right to make such rules and regulations, subject to the approval of the President, touching the right of any person to remain upon or pass over any part of the Canal Zone as may be necessary. Any person violating any of such rules or regulations shall be guilty of a misdemeanor, and on conviction in the District Court of the Canal Zone shall be punished by a fine not exceeding five hundred dollars or by imprisonment not exceeding a year, or both, in the discretion of the court. It shall be unlawful for any person, by any means or in any way, to injure or obstruct, or attempt to injure or obstruct, any part of the Panama Canal or the locks thereof or the approaches thereto. Any person violating this provision shall be guilty of a felony, and on conviction in the District Court of the Canal Zone shall be punished by a fine not exceeding ten thousand dollars or by imprisonment not exceeding twenty years, or both, in the discretion of the court. If the act shall cause the death of any person within a year and a day thereafter, the person so convicted shall be guilty of murder and shall be punished accordingly.”
23 See Sec. 2 of Act of Sept. 21, 1922, amending Sec. 8 expressly providing that the jurisdiction in admiralty shall be the same as is exercised by the United States District Judges and the United States District Court, and that practice and procedure shall be the same as in the United States District Courts. 42 Stat. 1004. See Robinson, G. H., Handbook of Admiralty Law in the United States (St. Paul, 1939), pp. 20–22, 234–238Google Scholar; Draft Convention on Territorial Waters, Harvard Research in International Law (this Journal, Vol. 23 (1929), Spl. Supp., p. 243 et seq.), comment on Arts. 15–16, 18; Jessup, P. C., The Law of Territorial Waters and Maritime Jurisdiction (New York, 1927), pp. 144–207 Google Scholar.
The dictum of the United States Supreme Court in the Wildenhus case is well known, but deserving of repetition in connection with the problem at hand as it relates to the Panama Canal:
“… by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace and dignity of the country or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged, as the laws of that nation or the interests of its commerce should require. But if crimes are committed on board of a character to disturb the peace and tranquility of the country to which the vessel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment if the local tribunals see fit to assert their authority.” 120 U. S. 1, 12. Cf. Cunard v. Mellon, 262 U. S. 100, 124. See “Criminal Jurisdiction over Foreign Merchant Ships,” Tulane Law Review, Vol. 10 (1935), p. 13, for review of subject.
24 See below, p. 624. A search of the Reports of the District Court throws little further evidence upon the subject, for the cases reported are few and essentially on other questions. In Government v. Flannery and Lorenz, it was held that under the National Prohibition Law, Canal Zone police could board a Navy cutter in Canal Zone waters, seize liquor and arrest the person in charge. Canal Zone Reports, Vol. III, pp. 595, 601. In denying the right of a policeman to break into a cabin of a steward on a ship, without the consent of the master, and without a warrant, and there to seize narcotics to use as evidence for conviction of the defendant, the Court in U. S. v. Almoguera, did not deny the right to board vessels, seize goods, or arrest persons if provided with a proper warrant. Ibid., pp. 401, 404.
25 No objection is on record against the assumption advanced by the British Government that this section is not applicable to British vessels. For. Rel., 1912, p. 488. Sec. 12, extending the extradition laws and treaties of the United States to the Canal Zone, applies more particularly to the Zone than to the Canal, and hence requires no treatment here, as our concern is with the Canal per se. The United States has maintained that its jurisdiction over fugitive criminals found in the Canal Zone is complete, and that foreign states desiring to obtain such persons must apply directly to the authorities of the United States, and not to Panama, for extradition. For. Rel., 1923, Vol. II, pp. 704–710. Sec. 11 was modified by the Intercoastal Shipping Act, 1933. 47 Stat. 1425. This Act required all common carriers engaged in intercoastal commerce to file rates, charges, etc., with the United States Shipping Board.
26 37 Stat. 560, 569. Under an Executive Order of May 17, 1916, which is still in force, the Governor may call upon the military for assistance in the performance of his functions and duties in connection with the Canal and Canal Zone. Ex. O., p. 214. An opinion rendered by the Judge Advocate General of the Army has held that the commanding officer of the Army, Panama Canal Department, may not be vested by the President with power to proclaim martial law. Digest of Opinions, Sec. 2141.
27 This will be discussed in a subsequent issue of this Journal.
28 In McConaughey v. Morrow, the District Court in the Canal Zone held that the Canal Zone Government is statutory and not constitutional, and that the Constitution of the United States as a rule does not apply thereto, except in so far as directed by Congress. The plenary power of Congress was recognized, as well as the ad hoc powers of the President. “An examination of this Act (1912) discloses the fact that while Congress reserves the right to modify existing rules and regulations, or to create new ones, there is nevertheless conferred upon the President, in reality, the entire management and control of the operation and government of the Canal and the Canal Zone, and all subsidiary agencies. … A careful examination of the whole case has convinced the Court that Congress not only conferred, but intended to confer, upon the President an unrestricted power of supervision, involving judgment, decision and discrimination, with respect to the entire Canal project and that the Courts can exercise no discretion thereover.” Canal Zone Reports, Vol. Ill, pp. 377, 381, 382, 394. See also Government v. Flannery and Lorenz, ibid., p. 599. See Sec. 1 of Act of Sept. 21, 1922, cit. supra.
29 Attention may be called, however, to Sec. 1 of the Act of Sept. 21, 1922, referred to above and below.
30 Sec. 1, Act of Sept. 21, 1922. 42 Stat. 1004. The Governor may call upon the commanding officer of the Army stationed in the Canal Zone for aid in the execution of his duties of control. Executive Order No. 2382, May 17, 1916, be. cit.
31 Annual Report, op. cit., 1915, pp. 33–34. A trial trip was made by the S.S. Cristobal on Aug. 3, 1914. Slides caused a closing of the Canal from Oct. 14–20, 31-Nov. 4, 1914, March 4–10, Sept. 4–9, and from Sept. 18, 1915, to April 15, 1916. Ibid., 1915, p. 34; 1916, p. 23.
32 It was felt in official circles in Washington that the United States might be freer in its control and use of the Canal during the war if the Canal were not formally opened, and thus unquestionably subject to the Rules of the Hay-Pauncefote Treaty.
33 Ex. O., p. 274; Annual Report, op. cit., 1920, p. 1. This was deemed a fulfillment of Sec. 4 of the Panama Canal Act. Practice during the war will be discussed in an article appearing in a subsequent issue of this Journal.
34 Executive Order No. 1990. Ex. O., pp. 178–193; also found in Annual Report, op. cit., 1915, pp. 521–536; this Journal, Vol. 10 (1916), Supp., p. 27 et seq.
35 Revisions and additions were introduced by Proclamation of Nov. 13, 1914, 38 Stat. 2039; Proclamation of May 23, 1917, 40 ibid., 1667; Executive Order of Dec. 20, 1923, Ex. O., Supp. No. 3, p. 339; Executive Order No. 4314, Sept. 25, 1925, ibid., Supp. No. 10, p. 382; Executive Order No. 7813, Feb. 14,1938, Federal Register, Vol. 3, p. 383; Governor’s Regulations regarding ship’s papers and other matters, June 13, 1939, ibid., Vol. 4, p. 2914; Governor’s Order of Oct. 3, 1939, regarding health and quarantine, ibid., p. 4171; Executive Order No. 8417, May 22, 1940, regarding excluded persons, ibid., Vol. 5, p. 1943. Use of the Canal at the present time is governed by the 1925 Orders as amended, the contents of which will be noted below.
36 See Executive Order No. 2692, of Aug. 27, 1917, establishing Defensive Sea Areas off the terminals of the Canal, into which vessels might enter only upon permission from patrol authorities. Ex. O., pp. 227–229. See succeeding article for discussion of these areas. The 1917 Area remained in force until the issuance of Executive Order of Jan. 25, 1919. Ibid., p. 251.
37 Art. 2 of the Convention with Panama.
38 Rules 3, 4, 10, 11 of July, 1914, Rules; Secs. 3, 4, 15, 34, 240 of 1923 Transit and Harbor Regulations; Rules 3, 4, 13 of 1925 Rules. Distinction is to be made between entering and clearing from the Panama Canal, and entering and clearing from the ports of the Canal Zone on the Canal, i.e., Cristobal and Balboa. Vessels do not enter and clear from these ports unless they discharge or take on cargo there. Coming alongside at these ports for fuel and supplies, or landing passengers temporarily while the vessel is awaiting transit, does not involve stopping at the ports in a sense requiring entry and clearance therefrom. Panama Canal Record, Vol. 8 (1914–1915), pp. 41, 296.
39 The Nov. 13, 1914, Proclamation, Rule 3, required such an undertaking from the commanding officers of war vessels of belligerents, as well as of vessels, whether belligerent or neutral, whether armed or not, employed by a belligerent Power as transports or fleet auxiliaries or in any way for the direct purpose of prosecuting or aiding hostilities, whether by land or sea. Ex. O., p. 203. Same provision, excepting vessels of war of the United States, in Rule 3 of May 23, 1917, Proclamation, ibid., pp. 224, 225. The Executive Order of Sept. 5, 1939, added the requirement that such written assurance be given by the commanding officer of any “public vessel of a belligerent or neutral nation.” Federal Register, Vol. 4, p. 3823.
40 This extensive power was first authorized when the United States was a belligerent, by Sec. I of Title II of the Act of June 15,1917. 40 Stat. 240. The Act permitted such action whenever the President should have proclaimed the existence of a national emergency. This was put into effect by Executive Order No. 2907, July 9,1918, Ex. O., p. 240. See also Executive Order of May 28, 1918, ibid., p. 239. Neutral vessels approaching the Canal were “thoroughly” examined on and after May 3, 1917. MS. Department of State. It was put into force, for the second time, in the form and language quoted above, by Executive Order No. 8234, of Sept. 5, 1939. Federal Register, Vol. 4, p. 3823.
41 Proclamation No. 1371 of May 23, 1917, Rule 15. Ex. O., p. 224. So far as can be ascertained, no enemy vessels were granted passage through the Canal while the United States was engaged in hostilities with Germany. The records of vessels transiting the Canal do show that in April and May, 1917, six “German” vessels passed through. Annual Report, op. cit., 1917, pp. 126–127. These vessels, however, had been seized by the United States Government prior to their transit, but American registers had not been issued for them at that time. Ibid., 1918, p. 137. German vessels first passed through the Panama Canal in January, 1920, albeit the state of war between the United States and Germany had not yet been officially terminated. Ibid., 1920, pp. 113–114.
In drawing up the Proclamation of May 23, 1917, Secretary Lansing, in a letter to the Secretary of War, dated April 13, 1917, argued that the general rules referring to war vessels and auxiliaries should not apply to our “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 should not be allowed to endanger the safety and usefulness of this great waterway.” MS. Department of State. In the light of this letter, attention may be called to the exact phraseology employed in Rule 15 of the Proclamation:
“In the interest of the protection of the Canal while the United States is a belligerent no vessel of war, auxiliary vessel, or private vessel of an enemy of the United States, or an ally of such enemy shall be allowed to use the Panama Canal nor the territorial waters of the Canal Zone for any purpose save with the consent of the Canal authorities and subject to such rules and regulations as they may prescribe.” Ex. O., p. 226.
42 Per Governor’s Regulations of June 13, 1939, these include: (1) Ship Information Sheet; (2) Clearance from last port; (3) Bill of health; (4) Quarantine declaration; (5) All other certificates of a sanitary nature; (6) Passenger List (4 copies), except in case of troop and contract labor ships; (7) Descriptive list of Chinese on board (2 copies); (8) Crew List (2 copies), except for warships; (9) Store List; (10) Cargo declaration (Panama Canal form), or complete manifest; (11) Manifest of local cargo (3 copies); (12) Declaration of explosive cargo carried; (13) Declaration of inflammable or combustible liquids in bulk carried as cargo; (14) Statement of fuel account; (15) Panama Canal tonnage certificate; (16) National Register; (17) General arrangement, plan of vessel; (18) Report of structural changes since last transit. Federal Register, Vol. 4, p. 2914. Rule 12 of the 1925 Rules allows the Governor to prescribe the delivery of other papers or information. Ex. 0., Supp. No. 10, p. 383. Failure to have cargo completely manifested, or to carry non-listed ship’s stores exposes the goods to seizure and forfeiture, and the master to penalty under the Customs Laws. Rules 145–150 of the 1925 Rules, ibid., pp. 397–398.
43 Executive Order of March 31, 1920, Establishing Maritime Quarantine Regulations for the Canal Zone. Ex. O., p. 268. Superseded, and now governed by Ch. VIII of 1925 Rules Governing Navigation of the Panama Canal. Ibid., Supp. No. 10, pp. 382, 392–395. Pratique without inspection is authorized by Rule 109 of the latter, for naval vessels, and, by Rule 110, at the discretion of the chief quarantine officer, for other vessels.
44 Rules 4–7 of July, 1914, Rules and Regulations, ibid., p. 178; Secs. 3–6 of 1923 Regulations, ibid., Supp. No. 3, p. 340; Rule 3 of 1925 Rules, ibid., Supp. No. 10, p. 382.
45 Rule 10 of 1914 Rules, ibid., p. 179; Sec. 15 of 1923 Regulations, ibid., Supp. No. 3, p. 340; Rule 4 of 1925 Rules, ibid., Supp. No. 10, p. 382. The 1923 Regulations contained a section (No. 16) forbidding unauthorized possession or transportation of intoxicating liquors in the Canal Zone in violation of the National Prohibition Act. This was not applicable, however, to the “transportation of intoxicating liquors in transit by vessels.” Ex. 0., Supp. No. 3, p. 341. See below, p. 620, for discussion of application of liquor laws to vessels in the Canal.
46 Rules 4, 5, 7 of 1914 Rules, cit. supra.; Secs. 4, 5 of 1923 Regulations, cit. supra. Sec. 4 of the 1923 Regulations likewise required special permission for vessels carrying volatile crude oil products. The 1925 Rules rest upon the general proposition that the Canal authorities may deny passage to vessels whose cargo might endanger the Canal or its structures. Rule 3, cit. supra. See also Additional Regulations prescribed by Governor, June 13, 1939. Federal Register, Vol. 4, p. 2914.
47 Rules 4 and 6 of 1914 Rules, Secs. 3 and 6 of 1923 Regulations, Rule 4 of 1925 Rules. The Rules and Regulations specify that no claim for damages shall be admitted on account of such temporary delay of the vessel.
48 Rule 9 of 1914 Rules, Rule 12 of November, 1914, Proclamation, Ex. O., pp. 203, 204; Sec. 13 of 1923 Regulations; Rule 5 of 1925 Rules.
49 Rules 27–39,54–55,63–201 of 1914 Rules; Secs. 30–182 of 1923 Regulations; Rules 31–88, 177–180 of 1925 Rules. Rules 4–14 of the Nov. 13, 1914, Proclamation, and 4–13, and 15 of the May 23, 1917, Proclamation additionally governed the entrance, passage, and sojourn of belligerent war vessels during the 1914–1918 hostilities. Proclamation No. 2350 of Sept. 5, 1939, Prescribing Regulations Concerning Neutrality in the Canal Zone, and Executive Order No. 8234, of Sept. 5, 1939, Prescribing Regulations Governing the Passage and Control of Vessels through the Panama Canal in any War in which the United States is Neutral, govern the entrance, passage and sojourn of belligerent and neutral vessels, public and private, in addition to the 1925 Rules, during the present war.
50 Rules 11–26 of 1914 Rules; Secs. 17–29 of 1923 Regulations; Rules 26–30 of 1925 Rules.
51 Rule No. 30 of the 1925 Rules states:
“The pilot is to be considered on board solely in an advisory capacity, but the master of a vessel must obey all the rules and regulations of the Canal as interpreted by the pilot. The pilot shall be consulted freely at all times, to insure safety in navigation, and no master, officer, nor other person connected with the vessel shall give or cause to be given any order concerning the movement of the vessel without the knowledge of the pilot, or against his advice. In case the master, officer, or other person connected with the vessel disregards or fails to obtain the advice of the pilot and an accident occurs which damages his own or another vessel or Canal property of any kind, or endangers or blocks the Canal, he will be held strictly responsible; and the vessel may be held by legal process until settlement in full shall have been made to cover any loss or damage that may have resulted in consequence thereof.” Ex. O., Supp. No. 10, p. 385.
52 Rules 40–51 of the 1914 Rules; Rule 14 of Nov. 13,1914, Neutrality Proclamation; Rule 12 of May 23, 1917, Proclamation; Secs. 240–250 of 1923 Regulations; Rules 171–176 of 1925 Rules. Proclamation No. 2350 of Sept. 5, 1939, Prescribing Regulations Concerning Neutrality in the Canal Zone, and Executive Order No. 8234 of the same date, Prescribing Regulations Governing the Passage and Control of Vessels through the Panama Canal in any War in which the United States is Neutral (the latter Regulations being in addition to the Rules and Regulations of 1925), contain no reference to radio. This remains, therefore, governed by the 1925 Rules. The Rules leave no room for special status for radio transmitters aboard warships or other public vessels of foreign states. The radios of all vessels and all radio messages emanating from vessels in the Canal waters, are submitted to the control of the radio shore stations.
53 Rule 2 of the 1925 Rules ordains a fine not exceeding $100, or imprisonment in jail not exceeding 30 days, or both. The 1914 Rules (Rule 2) had made the violation a misdemeanor, punishable by a fine not to exceed 1500, or imprisonment not to exceed 6 months, or both. This was reduced to the present terms in Sec. 2 of the 1923 Regulations. The 1925 Rules incorporate chapters concerning Quarantine, Exclusion of Undesirables, and Customs, all taken from the current laws on those subjects, each of which entail separate penalties. See Ex. O., Supp. No. 10, pp. 393, 395, 397–398. These subjects are treated separately here, and will be discussed below.
54 Rules 99, 101 of 1925 Rules; Rule 61 of 1914 Rules; see also Governor’s Circular No. 720. Settlement may be between parties out of court, or in admiralty in the District Court of the Canal Zone. By Sec. 5, paragraph 4, of the Panama Canal Act, 1912, the Panama Canal assumes responsibility for injury to vessels, cargo, or passengers, due to accidents caused by passage of a vessel through the locks, provided the vessel has complied with all the Rules and Regulations on Navigation, and any regulations issued by the Governor. 37 Stat. 560, 563; Rules 57–61 of 1914 Rules; Secs. 232–239 of 1923 Regulations; Rules 89–101 of 1925 Rules.
55 Sec. 10 of Act of Aug. 21, 1916, authorizes punishment by fine not exceeding 110,000, or by imprisonment not exceeding 20 years or both. 39 Stat. 527; reproduced in Rule 98 of 1925 Rules, Ex. O., Supp. No. 10, p. 392.
56 Secs. 1–2 of Title II of Act of June 15, 1917, 40 Stat. 217, 220; Executive Order No. 2907, July 9, 1918, Ex. O., p. 240; Proclamation No. 2352, Sept. 8, 1939, Federal Register, Vol. 4, p. 3851.
56a Panama Canal Record, Vol. 10 (1916–1917), p. 463.
57 Order of Secretary of War, June 24, 1904, supra, note 5, Ex. O., pp. 26–27. See Secs. 35–38 of Act No. 8 of the Isthmian Canal Commission, Laws of the Canal Zone, op. cit., p. 61.
58 Sec. 4, Panama Canal Act, 37 Stat. 560, 561.
59 Ex. O., p. 195.
60 Penalties were a fine not exceeding S500 for Nos. 1 and 4; fine equal to value of merchandise not manifested, and forfeiture of same, for No. 2; fine for treble the value of goods omitted from sea store list, together with forfeiture of the same. (These orders and penalties reproduced, so far as they went, the law then in force respecting such matters in continental United States.) Additional regulations were issued by the Governor in Series 679 of the Governor’s Circulars.
61 Ex. O., Supp. No. 10, pp. 397–398.
62 Rules 145, 146, 153. Rules 142–144 established the customs district, ports of entry, and Bureau of Customs to enforce the rules and regulations; Rule 147 made it unlawful to pass a fraudulent invoice; Rule 148 authorized seizure of goods smuggled or brought in under false invoice; Rules 159, 160 carried on the 1914 provisions regarding articles not manifested, and non-listed sea stores; Rule 151 provided for fee service; Rule 152 empowered a shipping commissioner to carry out the laws relating to merchant seamen; finally, the penalty clause (Rule 154) added to the monetary fine of the 1914 Order the possibility of 90 days in prison.
63 47 Stat. 813.
64 Arts. 4–5, U. S. Treaty Series, No. 945. Act of July 10, 1937, 50 Stat. 509, amended the penalty for entering articles without approval, or for passing false invoices or bills, to $100 fine, or 30 days’ imprisonment, or both.
65 33 Stat. 2234. Arts. 4, 6, 7, 9, and 13 of the convention contain provisions regarding sanitation.
66 Arranged by Taft Agreement. See Sec. 6 of Executive Order of Dec. 3, 1904, Ex. O., pp. 29–31, and note 48 on p. 30 therein.
67 Act No. 10, Sept. 2, 1904, Laws of the Canal Zone, op. cit., p. 86. These were intended for the ports and harbors of the Canal Zone, but differed only in detail from the general principles embodied in the fuller Regulations of 1913.
68 Executive Order No. 1761, April 15, 1913, Ex. O., p. 143. These Regulations did not come into force sooner because Sec. 36 provided that they should take effect from and after the date upon which the Panama Canal “is officially and formally opened for use and operation; by proclamation of the President of the United States.” The Regulations, slightly amended (by Executive Orders Nos. 1761, 2020, and 2118, of April 15, 1913, Aug. 14, 1914, and Jan. 11, 1915, respectively [Ex. O., pp. 143, 197, 206]), were reënacted and made effective by Executive Order No. 2527, of Feb. 6, 1917. Ibid., pp. 220, 222.
The 1913 Regulations prescribed the forms for bills of health to be procured by vessels, inspection requirements for vessels and passengers. By Sec. 31, a certificate of compliance with the quarantine regulations was required as a prerequisite to customs entry “or passage through the Panama Canal.” Ibid., p. 149. Sec. 33 directed the Governor of the Panama Canal to issue such additional rules as he might deem necessary from time to time. These are contained in Series 626 of the Governor’s Circulars.
69 Executive Order of March 31, 1920, ibid., p. 268. Secs. II, III, IV of this Order made it somewhat clearer that the regulations were applicable to vessels touching at Canal waters for the sole purpose of passing through the Canal. E.g., Sec. II provided:
“Masters of vessels clearing from any foreign port or from any port in the possessions or other dependencies of the United States, or touching at any of the said ports, for a port in the Canal Zone or for the port of Panama or Colon, Republic of Panama, or for passage through the Panama Canal, must obtain a bill of health in duplicate form from the officer or officers authorized by the quarantine laws and regulations in the United States, to sign such certificates for vessels entering the ports of the United States.” Ex. O., pp. 268–269. Further rules were added by Governor’s Regulations of June 13, 1939. Federal Register, Vol. 4, p. 2914.
70 Ch. VIII, ibid., Supp. No. 10, pp. 382, 392–395. The 1925 Rules contain innovations by way of pratique without inspection for naval vessels (Rule 109), and, at the discretion of the chief quarantine officer, for other vessels (Rule 110). In the latter instance this is to be accorded only after advising in advance by radio the names of ports visited in port 10 days, assurance that there is no sickness on board, and stating that the vessel intends “to transit the Canal without taking on or landing either cargo or persons.” Ibid., pp. 393–394.
71 See note 70.
72 38 Stat. 275.
73 D. H. Smith, The Panama Canal (Baltimore, 1927), p. 151.
74 Act of Dec. 17,1914, 38 Stat. 785, Secs. 2, 4, 8. Registration was required in the Canal Zone. See Executive Order No. 2142, March 1, 1915, Ex. O., p. 210. Registration and taxation provisions amended by Title X of Revenue Act of Feb. 24, 1919, 40 Stat. 1057, 1126, 1130–1132; also by Act of Feb. 26, 1926, 44 Stat. 97. See U. S. Code, Title 26, Secs. 1040–1055, 1383–1391; Canal Zone Code, pp. 969–981.
75 42 Stat. 595.
76 Sec. 8. The penalty was made $25 an ounce in cases of smoking-opium, and equal to the value of the goods if other narcotics. The penalty constitutes a lien upon the vessel, enforceable by proceedings by libel in rem, and clearance of the vessel may be withheld pending payment of the penalty (Sec. 8b). Sec. 2c provides a punishment of fine up to $5,000, and imprisonment not exceeding 10 years, for any individual who fraudulently or knowingly “imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing, or receives, conceals … such narcotic drug. …” Whenever, on trial for violation of Sec. 2c, the defendant is shown to have or have had possession of the drug, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains to the satisfaction of the jury (Sec. 2f). A master of a vessel is not liable to penalty or punishment “if he satisfies the jury that he had no knowledge of and used due diligence to prevent the presence of the narcotic drug in or on such vessel … but the narcotic drug shall be seized, forfeited, and disposed of … ” (Sec. 2g).
77 Canal Zone Reports, Vol. III, pp. 401, 404.
78 41 Stat. 305, 322. Cf. supplemental Act of Nov. 23, 1921, 42 Stat. 222.
79 In Government v. Flannery and Lorenz, the District Court upheld the boarding of a naval cutter in Canal Zone waters other than the Canal proper, for the seizure of liquor and the arrest of persons on board having liquor in their possession. Canal Zone Reports, Vol. III, pp. 595–601.
80 Title III, Sec. 20, par. 1.
81 33 Ops. Atty. Gen., pp. 335–352. On Oct. 6, 1922, the President ordered the U. S. Shipping Board to enforce the ruling on all ships under the American flag. For. Rel., 1922, Vol. I, p. 577. Oct. 14, 1922, the Secretary of Treasury issued instructions to the effect that the Prohibition Law was applicable to all foreign vessels coming within the territorial waters of the United States, excepting vessels passing through the Panama Canal and not touching any other port under the jurisdiction of the United States. Ibid., p. 580.
82 For. Rel., 1923, Vol. I, pp. 213–214, 216; 262 U. S. 100, 127–129. The court said that the exception regarding the Panama Canal “does not discriminate between domestic and foreign ships, but applies to all liquor in transit through the Canal, whether on domestic or foreign ships.” The court continued:
“Much has been said at the bar and in the briefs about the Canal Zone exception, and various deductions are sought to be drawn from it respecting the applicability of the Act elsewhere. Of course the exception shows that Congress, for reasons appealing to its judgment, has refrained from attaching any penalty or forfeiture to the transportation of liquor while 'in transit through the Panama Canal or on the Panama Railroad.' Beyond this it has no bearing here, save as it serves best to show that where in other provisions no exception is made in respect of merchant ships, either domestic or foreign, within the waters of the United States, none is intended.
“Examining the Act as a whole, we think it shows very plainly, first that it is intended to be operative throughout the territorial limits of the United States, with the single exception stated in the Canal Zone provision; secondly, that it is not intended to apply to domestic vessels when outside the territorial waters of the United States, and thirdly, that it is intended to apply to all merchant vessels, whether foreign or domestic, when within those waters, save as the Panama Canal exception provides otherwise.”
83 43 Stat. 1761. Italics inserted. Similar provisions were written into the conventions for the same purpose with Germany, May 19, 1924 (ibid., 1815); Sweden, May 22, 1924 (ibid., 1830); Norway, May 24, 1924 (ibid., 1772); Denmark, May 29, 1924 (ibid., 1809); Italy, June 3, 1924 (ibid., 1844); and The Netherlands, Aug. 21, 1924 (44 Stat. 2013). A convention consonant with the terms of the other agreements was signed by the United States and Panama on May 14, 1932, and proclaimed in effect April 7, 1933. 48 Stat. 1488. An Act of Congress of July 5, 1932, amended Sec. 20 of the National Prohibition Act to conform to the terms of this convention. 47 Stat. 579.
84 Executive Order No. 5888, July 16,1932, effected abrogation of the law. Ex. O., Supp. No. 22, p. 440. See also Act of June 19, 1934 (48 Stat. 1116), authorizing the President to make rules and regulations respecting alcoholic beverages in the Canal Zone, and régulations issued by Secretary of War Dem July 18, 1934, making it lawful to possess and transport alcoholic beverages in the Canal Zone. Ex. 0., Supp. No. 28, p. 470. See also Executive Order No. 6997, March 25, 1935, ibid., p. 477.
85 A Memorandum from the Chief of the Division of Latin American Affairs to the Secretary of State, May 28, 1924, reporting a conversation with the Panama Minister, points out that certain waters three miles from the Canal Zone limits are within the territorial waters of Panama. The Minister suggested that an arrangement be reached which would not prejudice the carriage of liquor within the territorial waters of Panama. For. Rel., 1924, Vol. I, p. 192.
86 43 Stat. 1875. At the time of signing, Secretary Hughes addressed a note to the Minister of Panama stating that the signing of this convention would not affect the inclusion in a new general treaty under negotiation of an article in this form:
“It is agreed that no penalty or forfeiture under the laws of the United States shall be applicable or attach to alcoholic liquors or to vehicles or persons by reason of the carriage of such liquors when they are transported under seal and under certificate from Panama authorities from terminal ports of the Canal to the cities of Panama and Colon and between those cities and any other point of the Republic and between any two points of the territory of the Republic when in either case the direct or natural means of communication is through Canal Zone territory and provided that such liquors remain under said seal and certificate while they are passing through Canal Zone territory.” For. Rel., 1924, Vol. I, p. 196.
87 Sec. 54 of 1914 Rules, Ex. O., p. 182; Sec. 55 of 1923 Regulations, ibid., p. 344; Rule No. 6 of 1925 Rules, ibid., p. 383.
88 Continued by Sec. 10 of Act of Aug. 21, 1916, 39 Stat. 527.
89 Public vessels are exempt from such treatment, but are permitted to enter the Canal only after the master has given formal written assurance that all Rules relating to navigation and use of the Canal will be faithfully observed. Rule 3, Neutrality Proclamation of Nov. 13,1914, Ex. O., p. 203; Sec. 1, Title II, Act of June 15,1917, 40 Stat. 217; Executive Order No. 8243, of Sept. 5, 1939, Prescribing Regulations Governing the Passage and Control of Vessels through the Panama Canal in any War in which the United States is Neutral, Federal Register, Vol. 4, p. 3823. This subject will be treated in a succeeding issue of this Journal. An Executive Order of March 6, 1920, made it unlawful for anyone in the Canal Zone to carry on or about his person any weapon or firearm without a permit, except persons in the authorized services of the United States. Ex. O., p. 267; revised by Act of July 5, 1932, 47 Stat. 573.
90 Rule 15 of Rules and Regulations for the Regulation, Management, and Protection of the Panama Canal, May 23, 1917, Ex. O., p. 224.
91 Letter of the President placing the Isthmian Canal Commission under the Secretary of War, May 9, 1904, Ex. O., pp. 20, 23:
“The commission shall have power to exclude from time to time from the Canal Zone and other places on the isthmus, over which the United States has jurisdiction, persons of the following classes who were not actually domiciled within the zone on the 26th day of February, 1904, viz.: Idiots, the insane, epileptics, paupers, criminals, professional beggars, persons afflicted with loathsome or dangerous contagious diseases, those who have been convicted of felony, anarchists, those whose purpose it is to incite insurrection and others whose presence it is believed by the commission would tend to create public disorder, endanger the public health, or in any manner impede the prosecution of the work of opening the canal, and may cause any and all such newly-arrived persons or those alien to the zone to be expelled and deported from the territory controlled by the United States. …”
This general formula was followed in subsequent laws and orders. An Executive Order of Jan. 9, 1908, provided fines for allowing Chinese to escape in the Canal Zone. Ibid., p. 75.
92 Supra, pp. 607–608.
93 39 Stat. 527, Secs. 4 and 10. Sec. 4 provided:
“That it shall be unlawful to commit any breach of the peace or engage in or permit any disorderly, indecent, or immoral conduct in the Canal Zone. The President is authorized to enforce this provision by making rules and regulations to assert and exercise the police power in the Canal Zone, or for any portion or division thereof, and he may amend or change any such regulation now existing or hereafter made.”
An Executive Order of Jan. 9, 1908, had made breaches of the peace and disorderly conduct misdemeanors. Ex. O., p. 74; governed by the Canal Zone Penal Code, Title XIV, Secs. 280–293.
Section 10 of the 1916 Act provided:
“The President is hereby authorized to make rules and regulations and to alter or amend the same from time to time, touching the right of any person to enter or remain upon or pass over any part of the Canal Zone; for the detention of any person entering the Canal Zone in violation of such rules and regulations, and return of such person to the country whence he or she came, on the vessel bringing such persons to the Canal Zone, or any other vessel belonging to the same owner or interest, and at the expense of such owner or interest; and in addition to the punishment prescribed by this section for violation of any such rules and regulations, the authorities of the Canal Zone may withhold the clearance of such vessel from any port in the Canal Zone until any fine imposed and the cost of maintenance of such person are paid. Any person violating any of such rules or regulations shall be guilty of a misdemeanor, and on conviction in the district court of the Canal Zone shall be punished by a fine not exceeding $500 or by imprisonment not exceeding a year, or both in the discretion of the court. It shall be unlawful for any person, by any means or in any way to injure or obstruct or attempt to injure or obstruct, any part of the Panama Canal or the locks thereof or the approaches thereto. Any person violating this provision shall be guilty of a felony, and on conviction in the district court of the Canal Zone, shall be punished by a fine not exceeding $10,000 or by imprisonment not exceeding twenty years, or both, in the discretion of the court. If the act shall cause the death of any person within a year and a day thereafter, the person so convicted shall be guilty of murder and shall be punished accordingly.”
93a See Executive Order No. 8417, May 22, 1940, containing most recent listing of persons subject to exclusion and deportation, including strikers and persons inciting or likely to incite strife in the Canal Zone. Federal Register, Vol. 5, p. 1943.
94 Executive Order No. 2527, Feb. 6,1917, related to the Exclusion of Undesirable Persons. Ex. O., p. 220. Executive Order No. 2526, of the same date, dealt with the Exclusion of Chinese. Ibid., p. 222. Governor’s Circulars, Series 714, amplify details of Order No. 2527 ; and Series 714–1 relate to the exclusion of Chinese. Exclusion was placed within the sphere of the Division of Quarantine.
The different classes of undesirable persons followed the listing contained in the President’s letter of May 9, 1904, supra, note 91, adding persons liable to become a public charge, and those likely to impede the Canal as mentioned above. Certain group3 of Chinese were allowed to enter, viz.: diplomatic and consular personnel; lawful residents of the Canal Zone in 1917; persons in United States service; domestic servants of United States officials; persons admitted by authority of the Governor.
Sec. 2 of Order No. 2527, allows persons of the excluded classes to cross the Canal Zone to reach a final destination but in the custody of a representative of the Canal Zone authorities. Crew members may not be paid off and discharged at Canal Zone ports without the consent of the Canal Zone authorities. All vessels approaching the Canal are required to fill out, swear to, and hand over to the Canal officials a formal descriptive list of all Chinese persons on board.
Violations of the orders are punishable by fine not exceeding $500, imprisonment not exceeding a year, or both, and vessels may be refused clearance until all matters concerning violations, fines, etc., have been cleared up.
Executive Order No. 2527 was amended by Order No. 3903, of Sept. 13, 1923, requiring that bond be posted for those allowed to cross the Canal Zone. Ex. O., Supp. No. 2, p. 337. The 1925 Navigation Rules for the Canal incorporated the orders relating to the exclusion of undesirables and Chinese. Ibid., Supp. No. 10, pp. 382, 395–397.
See also Immigration Act of 1924, which, however, was applicable only in part to the Canal Zone. 43 Stat. 153. Executive Order No. 4125, Jan. 12, 1925 (Ex. O., Supp. No. 8, p. 372), laid down the requirements concerning documents to be possessed by aliens entering the United States. While this order required aliens entering the United States to be in the possession of passports duly visaed by American consular officials, exception was made in the case of aliens and seamen on board vessels bound for foreign ports and merely touching at ports of the United States. This order was further amended by Executive Order No. 5869, July 30, 1932, ibid., Supp. No. 22, p. 436. Both orders provided that masters of vessels of all nationalities sailing for a port of the United States, which would naturally include the Canal Zone ports, must submit to the American consular officers at the port of departure a list of all alien members of the crew. For further amendments of the same, see Executive Order No. 6722, May 26, 1934, ibid., Supp. No. 27, p. 467, dealing especially with documents required of bona fide alien seamen arriving at ports of the United States; and Executive Order No. 6986, March 9, 1935, ibid., Supp. No. 28, p. 474, providing that aliens must possess unexpired passports or official documents and that no visa or “transit certificate” shall be granted to aliens whose entry would be contrary to the public safety.
Deportation is determinable, under the Order of Feb. 6, 1917, after giving opportunity to be heard. If such opportunity is not given, the District Court, or, on appeal, the Circuit Court of Appeals at New Orleans, may, by habeas corpus inquire into the authority for depriving anyone of liberty. Opinion of the Judge Advocate General of the Army, March 4, 1920, Digest of Opinions, Sec. 2143.
95 Act of June 15, 1917, Title II, Sec. 1, 40 Stat. 217; Executive Order No. 8243, Sept. 5, 1939, Federal Register, Vol. 4, p. 3823.
96 Act of June 15, 1917, cit. supra.
97 40 Stat. 533.
98 40 Stat. 553.
99 40 Stat. 411.
100 49 Stat. 559.
101 Ex. O., p. 230.
102 These will be dealt with in a succeeding issue of this Journal.
103 For. Rel., 1912, p. 1206. The motivation was well expressed by Secretary of Navy Daniels:
“The fundamental reason why the United States Government should have a monopoly of all means of radio communication in the Republic of Panama lies in the fact that the United States is the sole guarantor of the independence of Panama and of the protection of the Canal. To fulfill these obligations it is militarily essential that the United States shall have actual physical control of all radio stations, not only in the Canal Zone, but in the Republic of Panama, at a time when the independence of Panama may be in jeopardy or the United States may be at war or be threatened with war. The one sure way to attain this end is to have the stations owned and operated at all times by the United States Government. Then in emergencies the trained operators, under military discipline, and familiar with both languages, will be on the spot and actually at work in their usual places, with no necessity for replacement at a critical time.” Ibid., 1914, p. 1040.
104 Ibid., 1912, pp. 1207–1240; ibid., 1914, pp. 1037–1052. A cooperative attitude was displayed by Panama officials from the outset. Ibid., 1912, p. 1209. The Solicitor of the Department of State took the view that as a result of the language of the 1903 Convention, it was not necessary “as a matter of law … to enter into any formal negotiations” with Panama. He held that Arts. 2,4, 6, and 13 empowering the United States to operate, maintain, and protect the Canal, and to acquire “auxiliary works,” conferred adequate title to establish stations in the Republic, and to regulate radio communications there. It was also argued that the right of eminent domain would extend to closing stations in the Zone or in the territory of Panama competing or interfering with the Canal stations. Ibid., 1912, pp. 1221–1233.
105 Sec. IV, Regulation 189, 37 Stat. 302. While this measure was in the process of enactment, the United States signed, and subsequently ratified, the International Wireless Telegraphy Convention. U. S. Treaty Series, No. 581; 38 Stat. 1672. The International Telecommunication Convention, signed at Madrid in 1932, which superseded the 1912 Convention, contained an article (Art. 13) reserving the right to governments to conclude special arrangements inter se, provided they remained within the general terms of the multilateral convention as regards interference. U. S. Treaty Series, No. 867; 49 Stat. 2391. Both Panama and the United States have ratified the 1932 Convention.
The only existing or authorized stations within 15 miles of the United States’ stations in the territory of the Republic of Panama were a Panama Government station, and two commercial concessions. For. Rel., 1912, pp. 1209–1213.
106 37 Stat. 560.
107 Ex. O., p. 178 et seq. Sec. 41 specified:
“Control of radio communication is entirely in the hands of the radio shore stations. No vessel will be allowed to interfere in the slightest degree with the Canal radio stations; upon an order being received by a vessel at any time while within the waters under the control of the Canal to discontinue using radio, even if in the midst of transmission of a message, she shall immediately comply.”
Secs. 44–45 required that all messages between ships in the Canal and ships at sea, or foreign stations, must be sent via the Canal shore stations. Secs. 2 and 3 embodied the sanction behind these Rules: fine of $500 and/or six months’ imprisonment for violation; non-clearance of the vessel from the Canal area until authorized by the Canal authorities. Quaere: Might a particularly obnoxious violator be punished under Sec. 10 of the Panama Canal Act with the greater penalty there provided ($10,000, and/or twenty years) for obstructing “by any means or in any way” the Panama Canal, its locks or approaches?
A separate Executive Order of the same date, No. 1988, July 9, 1914, required all oceangoing steamers carrying fifty or more persons, leaving any port of the Canal Zone, to be equipped with wireless apparatus. Masters departing without such apparatus, save on vessels plying not more than 200 miles from the Zone, were subject to fine up to $5,000, constituting a lien on the ship. Ibid., p. 178.
These radio provisions were reincorporated with slight modification in the 1923 Transit Regulations. Ibid., Supp. No. 3, pp. 339, 358. Sec. 41 of the 1914 Rules was modified by leaving out all of the second sentence noted above. The 1925 Canal Rules carried on the 1923 Regulations, further abbreviated. Additionally, they revised the 1914 requirement that all ocean-going steamers carrying fifty or more persons be fitted with radio, to exclude “vessels merely transiting the Canal.” Ibid., Supp. No. 10, pp. 382, 400.
108 Secretary Bryan to Minister Price, Aug. 13, 1914, For. Rel., 1914, p. 1046.
109 Ibid., pp. 1046–1050, 1051. A Decree was issued previously on Aug. 15, 1914, giving the Canal Zone Government provisional authority of the same nature. For. Rel., 1923, Vol. II, pp. 695, 697.
110 See note from Minister of Panama to Secretary of State Hughes, Dec. 19, 1922, complaining that the 1914 Decree was meant to cover only the wartime emergency, and that under existing arrangements Panama was denied a sovereign right. The Minister insisted on the need of an intergovernmental convention to warrant the powers exercised by the United States. Ibid., pp. 695–698. Mr. Hughes refused to acknowledge the temporary nature of the 1914 Decree and insisted that it represented a formal agreement between the two governments, intended to give permanent control to the United States. He insisted present conditions would not justify abrogation of the Decree, and that United States control was essential to the protection of the Canal, and to the guarantee of independence of Panama. The Secretary of State added that the United States was ready to negotiate adaptation of the regulations to the new conditions, and to discuss the matter in connection with the treaty negotiations then projected. Ibid., pp. 699–700.
111 McCain, op. cit., p. 180; New York Times, Jan. 3, 1931.
112 Text of the signed convention in Sen. Doc., Executive C, 74th Cong., 2d Sess., p. 7.
113 The convention was reported favorably to the Senate by the Committee on Foreign Relations July 20, 1939. Exec. Report No. 17, 76th Cong., 1st Sess., Cong. Rec., July 20, 1939, p. 9578. At the time of consent by the Senate to the General Treaty of Friendship and Cooperation, Senator Pittman announced that he would not press for consideration of the Radio Convention at that time. Ibid., July 25, 1939, p. 9909. It has not been considered by the Senate since that date.
This instrument recognizes the sovereign right of Panama to regulate, license, and control radio stations and communications within the territory of the Republic. That state covenants, however, to cooperate with the Government of the United States on the assumption that all radio matters are related both to the security and independence of the Republic of Panama and to the operation and protection of the Canal. Radio boards are provided for in each jurisdiction, which are to study their common problems and make recommendations to both governments. Exchange of operators and full information regarding all stations, equipment and procedures is called for, as well as joint control in time of emergency. The United States is assured that stations in the territory of Panama interfering with the operation of the Canal, or involving the security of the Canal or of Panama, will be forced to cease operation. The United States is accorded a monopoly over all traffic concerning the Canal. The United States is also protected by terms which provide for the installation of United States Government stations in the territory of Panama, if necessary for the protection and operation of the Canal. Furthermore, joint supervision is ordained for “everything relating to radio communication, including broadcasting, in case of an international conflagration or the existence of any threat of aggression which would endanger the security of the Republic of Panama or the neutrality or security of the Panama Canal.”
A Regional Radio Convention was signed by representatives of the Governments of Costa Rica, El Salvador, the United States of America in behalf of the Canal Zone, Guatemala, Honduras, Nicaragua, and Panama on Dec. 8, 1938, establishing agreement on operating frequencies in the area surrounding the Canal Zone. U. S. Treaty Series, No. 949. This has been ratified by the United States and Guatemala, but not by Panama or the other signatories.
114 In the negotiation and conclusion of the 1936 Treaty it was agreed that unilateral action by the United States within the territory of the Republic may precede “consultation.” Sen. Exec. Report No. 5, 76th Cong., 1st Sess., p. 5; this Journal, Vol. 34 (1940), Supp., p. 157.
115 The language of Art. 10 of the 1912 Act is construable, however, to cover regulation of movement in the airspace: “That after the Panama Canal shall have been completed and opened for operation the Governor of the Panama Canal shall have the right to make such rules and regulations, subject to the approval of the President, touching the right of any person to remain upon or pass over any part of the Canal Zone as may be necessary.”
116 The Joint Neutrality Board believed, according to a memorandum of Oct. 20, 1914, that because the treaties left the status of the airspace undecided, “the United States can with the greater propriety establish its own position in the matter.” MS. Department of State.
117 Executive Order No. 1810, Ex. O., p. 150. The order forbade the taking or making of pictures and sketches from aircraft without permission. A fine of not more than 81,000, or imprisonment not exceeding a year, or both, was made the punishment for violation. Taking or making pictures or sketches from aircraft would also come within the terms of Title I of the Espionage Act, 40 Stat. 217, 220. Violation of this law is punishable by fine up to $10,000, or imprisonment for not more than two years, or both.
118 Rule 15 of Proclamation of Neutrality for the Canal Zone, Nov. 13,1914, 38 Stat. 2039; Ex. O., p. 203. See Proclamation No. 2350, Sept. 5, 1939, below.
119 Proclamation of May 23, 1917, Rule 13, 49 Stat. 1667. Otherwise the restriction remained as in 1914.
120 Proclamation No. 1432, Feb. 28, 1918, 40 Stat. 1753. It is interesting to observe the ground on which the proclamation was issued: “Whereas, the United States of America is now at war, and the Army and Navy thereof are endangered in their operations and preparation by aircraft. …” This proclamation was abrogated by Proclamation of July 31, 1919, 44 Stat. 1765.
121 44 Stat. 568.
122 50 Stat. 486. The Act provided:
“The Government of the United States is hereby declared to possess, to the exclusion of all foreign nations, sovereign rights, power, and authority over the air space above the lands and waters of the Canal Zone. Until Congress shall otherwise provide, the President is authorized to make rules and regulations and to alter and amend the same from time to time governing aircraft, air navigation, air navigation facilities and aeronautical activities within the Canal Zone.”
Penalty for violation of the executive rules and regulations was made a fine not exceeding $500, imprisonment for not more than a year, or both.
123 Executive Order No. 4971, Sept. 28, 1928, Ex. O., Supp. No. 16, p. 417.
124 Executive Order No. 5047, Feb. 18, 1929, ibid., Supp. No. 17, p. 420. An Executive Order was issued by the President of Panama May 4, 1929. The regulations subjected all aircraft other than military, naval, customs, or police aircraft to the same treatment as private aircraft.
125 Re composition of Board, see Munro, D., The United States and the Caribbean Area (Boston, 1934), p. 84 Google Scholar.
126 Penalty of a fine up to $500 or imprisonment up to one year was prescribed for violation of the regulations.
Further regulations were issued by the Secretary of State, Feb. 26, 1929, containing information regarding permits, authorizations, inspections, traffic rules, etc. This Journal, Vol. 23 (1929), Supp., p. 123. Shortly after the issuance of these regulations, Pan American Airways commenced regular service to South America with landings at David and at Panama City. Bulletin, Pan American Union, Vol. 63 (1929), pp. 615, 833.
127 Proclamation No. 2350, Sept. 5, 1939, Federal Register, Vol. 4, p. 3821. It may be worth while to call attention to the fact that this proclamation was for Neutrality in the Canal Zone in the War between Germany, France, Poland, the United Kingdom, India, Australia, and New Zealand. When, some days later, the Union of South Africa and Canada declared a state of war to exist between each of them and Germany, the United States issued general proclamations of neutrality for each of those wars, comparable to its Proclamation of Neutrality of Sept. 5, 1939. (For Union of South Africa, Sept. 8, Federal Register, Vol. 4, p. 3851; for Canada, Sept. 10, ibid., p. 3857.) It did not, however, in either case issue Proclamations Prescribing Regulations Concerning Neutrality in the Canal Zone in the wars of those Powers and Germany. Neither did it issue such proclamations following the proclamations of neutrality for the wars between Germany and Norway (April 25, 1939, ibid., Vol. 5, p. 1569); Germany and The Netherlands, Luxembourg, and Belgium (May 11, 1940, ibid., p. 1689); Italy, and France and the United Kingdom (June 10, 1940, ibid., p. 2191). Thus, technically, the aircraft of Canada, the Union of South Africa, Norway, The Netherlands, Belgium, Luxembourg, and Italy are not excluded from the airspace above the territory and waters of the Canal Zone by virtue of special proclamations. Quaere: Does such action on the part of the United States open it to the charge of unequal treatment of belligerents?
128 Executive Order No. S251, Federal Register, Vol. 4, p. 3899.
129 The order empowers the Governor to make further rules and regulations. Sec. 9 stated that this order was to be administered in connection with Order No. 8233 of Sept. 5, 1939, Prescribing Regulations Governing Enforcement of the Neutrality of the United States, and Proclamation No. 2350, Sept. 5, 1939, Prescribing Regulations Concerning Neutrality in the Canal Zone, cit. supra. Sec. 6 of the Order, regarding applications, was amended by Executive Order No. 8271, Oct. 16, 1939, Federal Register, Vol. 4, p. 4277. The Department of State issued regulations pursuant to this order restating its general provisions on Oct. 10, 1939. Department of State Bulletin, Oct. 14, 1939, pp. 379–380.
130 Padelford, N. J., “American Rights in the Panama Canal,” this Journal, Vol. 34 (1940), pp. 420–421 Google Scholar.
131 Ibid., p. 421.
132 Ibid., p. 432.
133 33 Stat. 266.
134 36 Stat. 1449. This appropriation was for the construction of coastal defense batteries.
135 Hearings before the Committee on Merchant Marine and Fisheries, House of Representatives, March 14, 15, 16, 1939, p. 65.
136 43 Stat. 1655, 1662–1663. The Proceedings of the Conference reveal no discussion of this exemption.
137 Repûblica de Panamâ, SecretarSa de Gobierno y Relaciones Exteriores, Memoria, 1912, pp. 49–50.
138 U. S. Treaty Series, No. 945, pp. 63–67.
139 Supra, note 114. Ratification of the 1936 Treaty was held up in the United States for a time on account of the feeling in Army and Navy circles that the interests of the United States had not been adequately cared for. The uncertainties were removed in large part by the exchange of notes of Feb. 1,1939, Cong. Rec., July 24,1939, pp. 9828–33. See also Sen. Exec. Report No. 5, 76th Cong., 1st Sess., pp. 2–3; U. S. Treaty Series, No. 945, pp. 63–64.
In the debate in the Senate on the ratification of the treaty, Senator Pittman stated that the Feb. 1,1939, note of the Panama Minister reproduced some Minutes of the negotiations of the treaty, authorized by both governments, and that it was to be regarded as evidence of the intention of both parties concerning the ambiguous phrases. He also said that the United States is the party to determine when an emergency exists which requires consultation and/or immediate action. Cong. Rec., July 24, 1939, pp. 9833–9834. See also, further statement by Senator Pittman, ibid., p. 9837. Some doubt still existing in the minds of the Senators concerning the weight to be attached to the Boyd-Hull letter, Senator Pittman on July 25, 1939, stated: “I say that when the Minister Plenipotentiary of Panama to this country, with full and general powers, reports to our Government that his Government ratified the Treaty with certain understandings, we not yet having ratified it, if we ratify it under certain representations by the Minister of Panama, Panama is bound by those reservations, because we have a right to accept representations by the Minister of Panama, who has plenipotentiary powers to deal with this Government.” Ibid., July 25, 1939, p. 9902. Senator Pittman then introduced another note from Minister Boyd to Secretary Hull dated July 25, 1939, noting that the question of whether the Panama legislature knew of and had before it the Minutes of negotiations referred to in the note of Feb. 1, 1939, had been raised in the Senate, and quoting from Panama Law No. 37 of 1936 approving and ratifying the treaty which contained the words “… which is done taking into account the Minutes and exchanges of notes …” Ibid.
140 An interesting booklet was prepared for the occasion, summarizing the history of the Canal project, the construction, operation, maintenance, and present-day functioning of the Canal. The Panama Canal, Twenty-Fifth Anniversary (Mt. Hope, 1939).