"First, the canal shall be free and open to the vessels of commerce and of war, all nations observing these rules on terms of entire equality so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.
"Second, the canal shall never be blockaded, nor shall any right of war be exercised, nor any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against lawlessness and disorder.
"Third, vessels of war of a belligerent shall not revictual nor take any stores in the canal except so far as may be strictly necessary; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the regulations in force, and with only such intermissions as may result from the necessities of the service."
It will be seen from this that the language of the treaty seems plainly to imply that the United States had no right to fortify the canal. It is interesting to note, however, that when the controversy over the tolls between the United States and England arose, the English Government expressly conceded the right of the United States to fortify the canal and to exercise absolute rights of sovereignty so far as military considerations were concerned. It would constitute an interesting chapter in diplomatic history if someone would tell the real reason why the English Government waived its rights of demanding a neutral canal under the Hay-Pauncefote treaty.
Those who advocated the fortification of the canal contended that the United States had acquired practical sovereignty over the Canal Zone, and that thereunder it had a perfect right to provide for the defense of the territory. They asserted that the canal was undertaken because of the military necessities of the United States, as demonstrated by the trip of the Oregon from the Pacific to the Atlantic, during the Spanish-American War and that to fail to fortify the canal would be to lose the military advantages which its construction had given to the United States.
It was further contended that to allow the canal to be neutral would, in the case of war between the United States and some foreign power, compel the United States to keep its own warships out of the canal its own blood and money had built, or else compel its permanent operating force at Panama to commit a sort of legal treason by putting the enemy's ships through the big waterway on the same terms with American ships.
This contention was answered by those who took the opposite view with the statement that all treaties would be suspended in case of war and that neutralization would cease between the United States and its enemies at such a time.
The other side replied that if this were true, it would then be too late properly to fortify the Isthmus, and that if the United States expected ever to deny to any country the neutrality provisions of the Hay-Pauncefote treaty, the fortifications should by all means be built in advance.
The long and earnest debate brought forth from some the prediction that England would not acquiesce in such a construction of the treaty, and from others the statement that under the terms of that instrument other nations had a right to protest against the fortification of the canal. In the face of these arguments, however, Congress determined by a substantial majority to fortify the canal, and the whole world has acquiesced. England not only did not protest, but in its toll controversy notes expressly declared that the United States had the right to fortify the canal.