Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1912

File No. 819.74/13.

The Acting Secretary of State to the American Minister .

No. 43.]

Department of State,
Washington , April 15, 1912 .

Sir: Referring to past correspondence relative to the establishment of wireless telegraph stations in Panama, there is enclosed herewith for your information a copy of the Solicitor’s memorandum dated April 4, 1912, considering the subject from the point of view of the rights given to the United States by treaty to erect and maintain wireless stations not only in the Canal Zone, but in parts of the Isthmus itself.

I am [etc.]

Huntington Wilson.

[Inclosure.—Memorandum.]

Operation of Wireless Telegraph Stations on the Isthmus of Panama.

Department of State, Office of the Solicitor,
Washington , April 4, 1912 .

It appears that the Navy Department desires to erect wireless telegraph stations, not only in the Canal Zone, but in parts of the Isthmus itself, and to operate the same when constructed as monopolies, at least as to certain kinds of stations.

The Latin-American Bureau requests an opinion as to the form the negotiations for obtaining the realization of the Navy Department’s plan should take, whether it should be an exchange of notes or otherwise.

It is my judgment that, as against the Government of Panama, this Government already enjoys, under the Canal Treaty of 1903, full right and authority to carry out the plans desired by the Navy Department in the erection and maintenance, as a monopoly, of wireless telegraph stations not only in the Zone but on the Isthmus itself. Unless, therefore, owing to some reason of, policy another course is deemed desirable, it would not seem necessary to enter into any formal negotiations at all for the acquisition of any right or permission to do the thing desired. The exchange of notes could be confined merely to the announcements and arrangements necessary for the carrying out of the work.

The grounds upon which the above conclusions have been reached may be set forth as follows:

(1) It is a general rule of international law that treaties must be construed broadly not narrowly and technically, and with a view to ascertaining and carrying out the broad general purpose for which the treaty was concluded.

The following authorities, which include authorities on international law from the earliest writers to the present, as also the rulings of our own Supreme Court, show that this rule is one that has been uniformly followed since international law began to be observed in dealings between nations.

Vattel, in his work on the “Law of Nations,” devotes a great deal of space to the question of the interpretation of treaties, and the principle as above set forth, underlies his entire dissertation upon this subject. The more immediately pertinent parts of his comments read as follows:

We ought always to affix such meaning to the expressions as is most suitable to the subject or matter in question; for, by a true interpretation, we endeavor to discover the thoughts of the person speaking, or the contracting parties in a treaty, (Vattel, Book 2, chap. 17, sec. 280.)

Again Vattel says:

Laws and treaties can only be worded in a general manner; and it is the interpreter’s province to apply them to particular cases, conformably to the intention of the legislature, or of the contracting powers. (Op. cit. sec. 282.)

Again:

It is not to be presumed that sensible persons, in treating together, or transacting any other serious business, meant that the result of their proceedings should prove a mere nullity. The interpretation, therefore, which would render a treaty null and inefficient, can not be admitted. We may consider this rule as a branch of the preceding; for, it is a kind of absurdity to suppose that the very terms of a deed should reduce it to mean nothing. It ought to be interpreted in such a manner as that it may have its effect, and not prove vain and nugatory; and in this interpretation we proceed according to the mode pointed out in the foregoing section. In both cases, as in all interpretations, the question is, to give the words that sense which ought to be presumed most conformable to the intention of the parties speaking. If many different interpretations present themselves, by which we can conveniently avoid construing the deed into a nullity or an absurdity, we are to prefer that which appears the most agreeable to the intention of those who framed the deed; the particular circumstances of the case, aided by other rules of interpretation, will serve to point it out. (Op. cit. sec. 283.)

In the following section Vattel lays it down that—

The reason of the law or of the treaty—that is to say, of the motive which led to the making of it, and the object in contemplation at the time—is the most certain clue to lead us to the discovery of its true meaning; and great attention should be paid to this circumstance, whenever there is question either of explaining an obscure, ambiguous, indeterminate passage in a law or treaty, or of applying it to a particular case. When once we certainly know the reason which alone has determined the will of the person speaking we ought to interpret and apply his words in a manner suitable to that reason alone. Otherwise he will be made to speak and act contrary to his intention, and in opposition to his own views. (Op. cit. sec. 287.)

Kent, in his address on the Law of Nations, asserts that—

Treaties of every kind, when made by the competent authority, are as obligatory upon nations as private contracts are binding upon individuals; and they are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and to be kept with a most scrupulous good faith. (Kent’s Commentaries, Vol. I, p. 175.)

Phillimore, in his work on International Law, lays down, as a fundamental proposition in the matter of the interpretation of treaties, that—

All international treaties are covenants bonae fidei, and are, therefore, to be equitably and not technically construed. (Vol. 2, 3d ed., p. 94.)

Phillimore further comments as follows:

• First. The rule which has already been adverted to, of deriving the interpretation of a particular passage from a comparison with the whole context of the instrument, and which mode of interpretation belongs as much to the logical as to the grammatical division of the subject. Mr. Wildman illustrates this position by the following example: “The ninth article of the Treaty of Utrecht provided that the port of Dunkirk should be destroyed. ‘Nec dicta munimenta portus moles aut aggeres denuo unquam refliciantur.’ The plain intention of this stipulation was to prevent the existence of a French port of military equipment in the midst of the Channel. The King of France, while he was destroying the port of Dunkirk, in accordance with the article of the Treaty, was constructing at Mardick, at the distance of a league, another port of greater dimensions and importance. The English Government remonstrated upon the absurdity of putting such a literal construction upon the article as would entirely defeat its object; and the French Government ultimately acquiesced, and discontinued the works. It was stipulated by the fourth article of the treaty between France and England, concluded at the Hague in 1777, that no new port should be formed within two leagues of Dunkirk and Mardick.”
• Second. The rule of considering the ground or reason (ratio legis) in which the Treaty originated, and the object of those who were parties to it. This is a less safe and less certain mode of interpretation, and one which requires more caution in its use and application. (Op. cit. pp. 102–103.)

Westlake, in his recent work on International Law (Past I, Peace, p. 282), has the following discussion regarding the interpretation of treaties:

The interpretation of treaties has been considered at much length by many writers on international law, and rules on it have been suggested which in our opinion are not likely to be of much practical use.

The important point is to get at the real intention of the parties, and the enquiry is not to be shackled by any rule of interpretation which may exist in a particular national jurisprudence, but is not generally accepted in the civilized world. On the whole we incline to think that the interpretation of international contracts is and ought to be less literal than that usually given in English courts of law to private contracts and acts of Parliament. In the first place, English drafting is more minutely careful, and correspondingly English interpretation is more literal, than is common in those countries to which most of the ministers and diplomats who are responsible for the wording of international contracts belong. And secondly, the nature of the matters dealt with by those eminent functionaries, and the peculiar conditions under which they work, must he considered. A style of drafting accommodated to the expectation of a very literal interpretation would necessitate the suggestion and discussion of so many possible contingencies, as would be likely to cause needless friction between the representatives of countries not always very amicable. It seems best in the interest of peace that, when an agreement on broad lines has been reached, it should be expressed in language not striving to hide a felt doubt, but on the other hand not meticulously seeking occasions for doubt; and to such a style of drafting, which we believe to be that most common in treaties, a large and liberal spirit of interpretation will reasonably correspond.

Oppenheim discusses the matter as follows:

All treaties must be interpreted according to their reasonable in contradistinction to their literal sense. An excellent example illustrating this rule is the following, which is quoted by several writers:

In the interest of Great Britain the Treaty of Peace of Utrecht of 1713 stipulated in its article 9 that the port and the fortification of Dunkirk should be destroyed and never be rebuilt. France complied with this stipulation, but at the same time began building an even larger port at Mardyck, a league off Dunkirk Great Britain protested on the ground that France in so acting was violating the reasonable, although not the literal, sense of the Peace of Utrecht, and Prance recognized in the end this interpretation and discontinued the building of the new port. (Int. Law, Vol. I, Peace, p. 560.)

The courts of the United States have repeatedly announced that in interpreting treaties we do so broadly and liberally, rather than narrowly and technically, even where the provisions run against this Government.

Mr. Justice Field, in delivering the opinion of the Supreme Court of the United States in Geofroy v. Riggs (133 U. S., 258, 271), stated the principle in the following language:

It is a general principle of construction with respect to treaties, that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their construction words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial sense impressed upon them by a local law, unless such restricted sense is clearly intended.

Mr. Justice Brown, in delivering the opinion of the court in Tucker v. Alexandroff, commented upon the principle as follows:

We think, then, that the rights of the parties must be determined by the treaty, but that this particular convention being operative upon both powers and intended for their mutual protection, should be interpreted in a spirit of uberrima fides, and in a manner to carry out its manifest purpose. (Taylor on International Law, sec. 383.) As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence. It is said by Chancellor Kent in his Commentaries (Vol. I, p. 174): “Treaties of every kind are to receive a fair and liberal interpretation according to the intention of the contracting parties, and are to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts.” (183 U. S., p. 424, 437.)

The authorities above cited would seem sufficiently to establish the general principle set forth at the head of this discussion.

(2) In determining the extent of a grant made by treaty, where the treaty admits of two constructions, one restrictive as to the rights that may be claimed wider it, and the other liberal, the latter is to be preferred.

The authorities on international law and the courts are quite as clear on this point as the other.

Vattel discusses it in the following language:

On every occasion when a person could and ought to have made known Ms intention, we assume for true against him what he has sufficiently declared. This is an incontestable principle, applied to treaties; for, if they are not a vain play of words, the contracting parties ought to express themselves in them with truth, and according to their real intentions. If the intention which is sufficiently declared were not to be taken of course as the true intention of him who speaks and enters into engagements, it would be perfectly useless to form contracts or treaties. (Vattel, Book 2, chap. 17, sec. 266.)

* * * Whenever we meet with any obscurity in it, we are to consider what probably were the ideas of those who drew up the deed, and to interpret it accordingly. This is the general rule for all interpretations. It particularly serves to ascertain the meaning of particular expressions whose signification is not sufficiently determinate. Pursuant to this rule we should take those expressions in their utmost latitude when it seems probable that the person speaking had in contemplation everything which, in that extensive sense, they are capable of designating; and on the other hand, we ought to restrict their meaning, if the author appears to have confined his idea to what they comprehend in their more limited signification. (Op. cit., sec. 270.)

All those things which, without proving too burthensome to any one in particular, arc useful and salutary to human society, are to be ranked in the class of favourable things; for a nation is already under a natural obligation with respect to things of this nature; so that if she has entered into any particular engagements of this kind, we run no risk in giving those engagements the most extensive meaning of which they are susceptible. Can we be afraid of violating the rules of equity by following the law of nature, and giving the utmost extent to obligations that tend to the common advantage of mankind? Besides, things which are useful to human society, are, from the very circumstance, conducive to the common advantage of the contracting parties, and are consequently favourable (see the preceding section). (Op. cit., sec. 302.)

1. When the question relates to things favourable, we ought to give the terms the utmost latitude of which they are susceptible according to the common usage of the language; and if a term has more than one signification, the most extensive meaning is to be preferred: * * *

2. In questions relating to favourable things, all terms of art are to be interpreted in the fullest latitude of which they are susceptible, not only in common usage, but also as technical terms, if the person speaking understands the art to which those terms belong, or conducts himself by the advice of men who understand that art. (Op. cit., sec. 307.)

Phillimore in his work comments upon the general principle involved as follows:

With respect to the mode of interpretation which has been designated as extensive. Vattel, agreeing with Grotius and Puffendorf, is of opinion that where the sufficient and only reasons of a provision is undisputed and certain, such provision may be extended to cases to which the same reason applies, although the provision be not comprised within the signification of the terms employed. This principle is sometimes called an adhering to the spirit rather than the letter. The Koran forbade wine to the Mahometans, and in so doing forbade all intoxicating liquors. It was a provision in a treaty that a certain city should not be enclosed within walls; at the time when the treaty was made, walls were the only species of fortifications in use; it would not be lawful to fortify that city by means of fosses and earthworks, because the spirit and intention of the treaty was to prevent the fortification of the town. Sempronius willed in his last testament that if the child of his then pregnant wife should die, Curius should be his heir. The testator died, but his wife proved not to be pregnant. Are the heirs under an intestacy, or Curius, to possess the property? The latter, for it is manifest that the intention of the testator was that Curius should stand next to the testator’s own child. These are the illustrations employed by Vattel and his great predecessors in support of the position. One, it will be seen, borrowed from a law, one from a convention, one from a unilateral act or testament. Vattel, however, enforces with great earnestness the necessity of the utmost caution always attending the use of a mode of interpretation which is not authorized by the terms of the instrument. It may only he resorted to in cases where there is no dispute with respect to the true and only reason of the provision; and the cardinal rule, that the true sense of a promise is not only that which was in the mind of the promiser, but also that which has been sufficiently declared, and which both the contracting parties must have reasonably understood, is never to be departed from. On the one hand, therefore, the instrument is not to be construed agreeably to the reason which one of the parties possibly might have had in his mind. On the other hand, it certainly ought to be construed agreeably to the reason upon which the parties clearly did proceed.

This rule of extensive interpretation excludes all the evasions and pretexts which have been resorted to for the purpose of evading stipulations. As a general maxim, it is true that good faith clings to the spirit, and fraud to the letter of the convention.

When the Corinthians, being forbidden to give ships to the Athenians, sold them some, at a merely nominal price; when the Queen of Egypt refused to pay tribute to the Rhodians for Pharos, because, though as an island, it was, under the convention, liable to such tribute, while the demand was being made she had joined it to the continent by a mole; when these and similar frauds are attempted, the rule of extensive interpretation by which they are condemned, is the rule of acknowledged rights.

There is another maxim of law relating to private contracts, which relates to the extensive interpretation, and the principle of which is applicable to international covenants. Pothier says that, “When the object of the agreement is universally to include everything of a given nature (une universalité des choses), the general description will comprise all particular articles, although they may not have been in the knowledge of the parties. For instance, an engagement which A makes with B. to abandon his share in a succession for a certain sum. This agreement includes everything which makes part of the succession, whether known or not; the intention of A. and B. was to contract for the whole. Therefore, it is decided that A. can not object to the agreement, under pretense that a considerable property has been found to belong to the succession of which both parties had no knowledge.” (Commentaries on International Law, 3d Ed., Vol. 2, pp. 111–113.)

Mr. Justice Swayne in delivering the opinion of the Supreme Court in Hauenstein v. Lynham (1879, 100 U. S., 483–487), said:

Where a treaty admits of two constructions, one restrictive as to the rights that may be claimed under it, and the other liberal, the latter is to be preferred. (Shanks v. Dupont, 3 Pet., 242.) Such is the settled rule of this court.

In Jeffry [Geofroy] v. Riggs (1889, 133 U. S., 258, p. 271) Mr. Justice Field, speaking for the court, said:

It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their construction words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that where a treaty admits of two constructions, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred. (Hauenstein v. Lynham, 100 U. S., 483–487.)

It is submitted that these authorities sufficiently established the principle quoted under 2 supra.

(3) While no treaty can be taken to restrict, by implication, the exercise of rights of sovereignty or property or self-preservation, yet every right or obligation which is necessarily attendant upon something clearly ascertained to be agreed to in the treaty, including a right to whatever may be necessary to the enjoyment of the things granted by it, is understood to be tacitly given or imposed by the gift or imposition of that upon which it is attendant.

This is Hall’s statement of the law governing interpretation of treaties in this respect. (International Law, 6th Ed., pp. 331–332.)

Other writers are equally clear in their statement of this principle. Grotius in his work on the rights of war and peace says:

In things of a favourable nature, if the parties engaged are acquainted with the legal principles upon which they proceed, or rest upon the judgment of those who are so, the words used may be taken in their most extensive signification, including even terms of art and of law. (See Universal Classics, Edition of Grotius, p. 181.)

Again Grotius says:

In speaking of motives and reasons, it is proper to observe that they sometimes comprehend things, considered not according to their actual existence, but according to their moral consequences; in which case it is by no means right to limit the words of a treaty to their literal meaning, but the utmost extent of interpretation is allowable, in order to maintain the spirit as well as the letter of such treaties. Thus, if it be stipulated that no troops or ships shall be brought to a certain place, or within a certain distance, the prohibition excludes all ships or troops from being brought thither, even under the fairest and most harmless pretenses. For the purport of the treaty is to guard not only against actual mischief, but even against remote danger. (Op. cit., p. 189.)

Vattel states the same principle in the following language:

It is not to be presumed that sensible persons, in treating together, or transacting any other serious business, meant that the result of their proceedings should prove a mere nullity. The interpretation, therefore, which would render a treaty null and inefficient, cannot be admitted. We may consider this rule as a branch of the preceding; for it is a kind of absurdity to suppose that the very terms of a deed should reduce it to mean nothing. It ought to be interpreted in such a manner as that it may have its effect, and not prove vain and nugatory; and in this interpretation we proceed according to the mode pointed out in the foregoing section. In both cases, as in all interpretations, the question is, to give the words that sense which ought to be presumed most conformable to the intention of the parties speaking. If many different interpretations present themselves, by which we can conveniently avoid construing the deed into a nullity or an absurdity, we are to prefer that which appears the most agreeable to the intention of those who framed the deed; the particular circumstances of the case, aided by other rules of interpretation, will serve to point it out. (Vattel, Book 2, chap. 17, sec. 283.)

Again he says:

When the sufficient and only reason of a provision, either in a law or a promise, is perfectly certain, and well understood, we extend that provision to cases to which the same reason is applicable, although they be not comprised within the signification of the terms. This is what is called extensive interpretation. (Op. cit., sec. 290.)

Taylor, in his work on International Law, states that:

As the valid grant of a substantive right or the assumption of a substantive obligation is supposed to carry with it all the incidents necessary to the enjoyment of the one or the performance of the other, such incidents will be presumed to have followed tacitly whenever such substantive rights or obligation has been given or imposed by treaty. (Taylor, International Public Law, p. 397.)

Wilson and Tucker, in their little work on “International Law,” assert that:

That which is clearly granted by the treaty carries with it what is necessary for its realization (p. 216).

It is of interest, in this connection, that the Supreme Court of the United States has invoked the same principle in construing the Constitution under which this Government is organized, and have advanced in so doing arguments, contentions, and reasons which seem equally applicable to the interpretation of treaties.

In the great case of McCulloch v. Maryland, Mr. Chief Justice Marshall, delivering the opinion of the Court, said:

* * * A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive terms which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

Although, among the enumerated powers of government, we do not find the word “bank” or incorporation,” we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations; and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after thern others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended that a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry how far such means may be employed.

It is not denied that the powers given to the government imply the ordinary means of execution. That, for example, or raising revenue and applying it to national purposes is admitted to imply the power of conveying money from place to place as the exigencies of the nation may require, and of employing the usual means of conveyance.

* * * * * * *

But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the government to general reasoning. To its enumeration of powers is added that of making “all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution, in the Government of the United States, or in any department thereof.” The counsel for the State of Maryland have urged various arguments to prove that this clause, though in terms a grant of power, is not so in effect, but is really restrictive of the general right which might otherwise be implied, of selecting means for executing the enumerated powers.

* * * * * * *

But the argument on which most reliance is placed is drawn from that peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the Government, but such only as may be “necessary and proper” for carrying them into execution. The word “necessary” is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress, in each case, that only which is most direct and simple.

Is it true that this is the sense in which the word “necessary” is always used? Does it always import an absolute physical necessity, so strong that one thing to which another may be termed necessary can not exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable. Such is the character of human language that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction that many words which import something excessive should be understood in a more mitigated sense—in that sense which common usage justified. The word “necessary” is of this description. It has not a fixed character, peculiar to itself. It admits of all degrees of comparison, and is often connected with other words which increase or diminish the impression the mind received of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. The comment on the word is well illustrated by the passage cited at the bar, from the 10th section of the 1st article of the Constitution. It is, we think, impossible to compare the sentence which prohibits a State from laying “imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,” with that which authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution “the powers of the general government, without feeling a conviction that the Convention understood itself to change materially the meaning of the word “necessary,” by prefixing the word “absolutely.” This word, then, like others, is used in various senses; and in its construction the subject, the context, the intention of the person using them, are all to be taken into view.

Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason and to accommodate its legislation to circumstances.

If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress may certainly be carried into execution without prescribing an oath of office. The power to exact this security for the faithful performance of duty is not given, nor is it indispensably necessary. The different departments may be established; taxes may be imposed and collected; armies and navies may be raised and maintained; and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the Convention was not unmindful of this subject. The oath which might be exacted—that of fidelity to the Constitution—is prescribed, and no other can be required. Yet he would be charged with insanity who should contend that the legislature might not superadd to the oath directed by the Constitution such other oath of office as its wisdom might suggest.

So with respect to the whole penal code of the United States: Whence arises the power to punish in cases not prescribed by the Constitution? All admit that the Government may, legitimately, punish any violation of its laws; and yet this is not among the enumerated powers of Congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility because it is expressly given in some cases. Congress is empowered “to provide for the punishment of counterfeiting the securities and current coin of the United States,” and “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” The several powers of Congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution although no punishment should be inflicted in cases where the right to punish is not expressly given.

Take, for example, the power “to establish post offices and post roads.” This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post road, from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office or rob the mail. It may be said with some plausibility that the right to carry the mail and to punish those who rob it is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due administration of justice. But courts may exist and may decide the cause brought before them though such crimes escape punishment.

The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it, without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the Constitution and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.

If this limited construction of the word “necessary” must be abandoned in order to punish, whence is derived the rule which would reinstate it when the government would carry its powers into execution by means not vindictive in their nature? If the word “necessary “means “needful,” “requisite,” “essential,” “conducive to,” in order to let in the power of punishment for the infraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment?

In ascertaining the sense in which the word “necessary” is used in this clause of the Constitution we may derive some aid from that with which it is associated. Congress shall have power “to make all laws which shall be necessary and proper to carry into execution “the powers of the government. If the word “necessary” was used in that strict and rigorous sense for which the counsel for the State of Maryland contend, it would be an extraordinary departure from the usual course of the human mind, as exhibited in composition, to add a word the only possible effect of which is to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation, not strained and compressed within the narrow limits for which gentlemen contend.

But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove that in the absence of this clause, Congress would have some choice of means. That it might employ those which in its judgment would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tend directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the State of Maryland, would abridge and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended is, we should think, had it not been already controverted, too apparent for controversy.

We think so for the following reasons: 1st. The clause is placed among the powers of Congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to diminish, the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these: “In carrying into execution the foregoing powers, and all others,” &c., “no laws shall be passed but such as are necessary and proper.” Had the Intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect.

The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. (17 U. S., p. 315, 406.)

Fifty years later, Mr. Justice Strong of the same court, in delivering the opinion of the court in the Legal Tender Cases (79 U. S., pp. 457, 531), said:

Nor can it be questioned that, when investigating the nature and extent of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construction applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it. In no other way can the intent of the framers of the instrument be discovered. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by a constitution than there are in construing a statute, a will, or a contract. We do not expect to find in a constitution minute details. It is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines. In Martin v. Hunter, it was said, “The Constitution unavoidably deals in general language. It did not suit the purpose or the people in framing this great charter of our liberties to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution.” And with singular clearness was it said by Chief Justice Marshall, in McCulloch v. The State of Maryland, “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which it may be carried into execution, would partake of the prolixity of a political code, and would scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” If these are correct principles, if they are proper views of the manner in which the Constitution is to be understood, the powers conferred upon Congress must be regarded as related to each other, and all means for a common end. Each is but part of a system, a constituent of one whole. No single power is the ultimate end for which the Constitution was adopted. It may, in a very proper sense, be treated as a means for the accomplishment of a subordinate object, but that object is itself a means designed for an ulterior purpose. Thus the power to levy and collect taxes, to coin money and regulate its value, to raise and support armies, or to provide for and maintain a navy, are instruments for the paramount object, which was to establish a government, sovereign within its sphere, with capability of self-preservation, thereby forming a union more perfect than that which existed under the old Confederacy.

The same may be asserted also of all the nonenumerated powers included in the authority expressly given “to make all laws which shall be necessary and proper for carrying into execution the specified powers vested in Congress, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.” It is impossible to know what those nonenumerated powers are, and what is their nature and extent, without considering the purposes they were intended to subserve. Those purposes, it must be noted, reach beyond the mere execution of all powers definitely intrusted to Congress and mentioned in detail. They embrace the execution of all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. It certainly was intended to confer upon the government the power of self-preservation. Said Chief Justice Marshall, in Cohens v. The Bank of Virginia, “America has chosen to be, in many respects and to many purposes, a nation, and for all these purposes her government is complete; for all these objects it is supreme. It can, then, in effecting these objects legitimately control all individuals or governments within the American territory.” He added, in the same case: “A constitution is framed for ages to come, and is designed to approach immortality as near as mortality can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen, indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it is sure to encounter.” That would appear, then, to be a most unreasonable construction of the Constitution which denies to the government created by it, the right to employ freely every means, not prohibited, necessary for its preservation, and for the fulfillment of its acknowledged duties. Such a right, we hold, was given by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authorized, are not enumerated or defined. In the nature of things enumeration and specification were impossible. But they were left to the discretion of Congress, subject only to the restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers given to Congress, and all other powers vested in the government of the United States, or in any department or officer thereof.

And here, it is to be observed, it is not indispensable to the existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by some one or more of the specifications of power, or by them all combined. And, that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of the States and proposed at the first session of the first Congress before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the “conventions of a number of the States had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which can not be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.

And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given. The oath required by law from officers of the government is one. So is building a capitol or a presidential mansion, and so also is the penal code. This last is worthy of brief notice. Congress is expressly authorized “to provide for the punishment of counterfeiting the securities and current coin of the United States, and to define and punish piracies and felonies committed on the high seas and offences against the law of nations.” It is also empowered to declare the punishment of treason, and provision is made for impeachments. This is the extent of power to punish crime expressly conferred. It might be argued that the expression of these limited powers implies an exclusion of all other subjects of criminal legislation. Such is the argument in the present cases. It is said because Congress is authorized to coin money and regulate its value it cannot declare anything other than gold and silver to be money or make it a legal tender. Yet Congress, by the act of April 80, 1790, entitled “An act more effectually to provide for the punishment of certain crimes against the United States,” and the supplementary act of March 3d, 1825, defined and provided for the punishment of a large class of crimes other than those mentioned in the Constitution, and some of the punishments prescribed ere manifestly not in aid of any single substantive power. No one doubts that this was rightfully done, and the power thus exercised has been affirmed by this court in United States v. Marigold. This case shows that a power may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive. Another illustration of this may be found in connection with the provisions respecting a census. The Constitution orders an enumeration of free persons in the different States every ten years. The direction extends no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production. Who questions the power to do this?

Indeed the whole history of the government and of congressional legislation has exhibited the use of a very wide discretion, even in times of peace and in the absence of any trying emergency, in the selection of the necessary and proper means to carry into effect the great objects for which the government was framed, and this discretion has generally been unquestioned, or, if questioned, sanctioned by this court. This is true not only when an attempt has been made to execute a single power specifically given, but equally true when the means adopted have been appropriate to the execution, not of a single authority, but of all the powers created by the Constitution. Under the power to establish post offices and post roads Congress has provided for carrying the mails, punishing theft of letters and mail robberies, and even for transporting the mails to foreign countries. Under the power to regulate commerce, provision has been made by law for the improvement of harbors, the establishment of observatories, the erection of lighthouses, breakwaters, and buoys, the registry, enrollment, and construction of ships, and a code has been enacted for the government of seamen. Under the same power and other powers over the revenue and the currency of the country, for the convenience of the Treasury and internal commerce, a corporation known as the United States Bank was early created. To its capital the Government subscribed one-fifth of its stock. But the corporation was a private one, doing business for its own profit. Its incorporation was a constitutional exercise of congressional power for no other reason than that it was deemed to be a convenient instrument or means for accomplishing one or more of the ends for which the Government was established, or, in the language of the first article, already quoted, “necessary and proper” for carrying into execution some or all the powers vested in the Government. Clearly this necessity, if any existed, was not a direct and obvious one. Yet this court, in McCulloch v. Maryland, unanimously ruled that in authorizing the bank Congress had not transcended its powers. So debts due to the United States have been declared by acts of Congress entitled to priority of payment over debts due to other creditors, and this Court has held such acts warranted by the Constitution.

This is enough to show how, from the earliest period of our existence as a nation, the powers conferred by the Constitution have been construed by Congress and by this Court whenever such action by Congress has been called in question. Happily the true meaning of the clause authorizing the enactment of all laws necessary and proper for carrying into execution the express powers conferred upon Congress, and all other powers vested in the Government of the United States, or in any of its departments or officers, has long since been settled. In Fisher v. Blight, this Court, speaking by Chief Justice Marshall, said that in construing it “it would be incorrect and would produce endless difficulties if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose it might be said with respect to each that it was not necessary because the end might be obtained by other means.” “Congress,” said this Court, “must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. The Government is to pay the debt of the Union and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe.” It was in this case, as we have already remarked, that a law giving priority to debts due to the United States was ruled to be constitutional for the reason that it appeared to Congress to be an eligible means to enable the Government to pay the debts of the Union.

It was, however, in McCulloch v. Maryland that the fullest consideration was given to this clause of the Constitution granting auxiliary powers, and a construction adopted that has ever since been accepted as determining its true meaning. We shall not now go over the ground there trodden. It is familiar to the legal profession, and, indeed, to the whole country. Suffice it to say, in that ease it was finally settled that in the gift by the Constitution to Congress of authority to enact laws “necessary and proper “for the execution of all the powers created by it, the necessity spoken of is not to be understood as an absolute one. On the contrary, this Court then held that the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Said Chief Justice Marshall, in delivering the opinion of the Court: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” The case also marks out with admirable precision the province of this Court. It declares that “when the law (enacted by Congress) is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to Inquire Into the degree or its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court (it was said) disclaims all pretensions to such a power.” It is hardly necessary to say that these principles are received with universal assent. Even in Hepburn v. Griswold, both the majority and minority of the Court concurred in accepting the doctrines of McCulloch v. Maryland as sound expositions of the Constitution, though disagreeing in their application.

Applying these principles to the case in hand:

In its preamble the treaty asserts that it is made because the two governments concerned are “desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific Oceans,”

The provisions of the treaty are more specific.

In Article 2, “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 * * *”

Further on in the same article it is stipulated that “the Republic of Panama further grants to the United States in perpetuity the use, occupation, and control of any other lands and waters outside of the zone above described which may be necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the said canal, or of any auxiliary canals or other works necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the said enterprise.”

In Article 4 Panama granted to the United States certain “subsidiary rights “for the “construction, maintenance, operation, sanitation, and protection of the said canal.”

Article 6 provides for payment of damages “caused to the owners of private lands or private property of any kind * * * by reason of the construction, maintenance, operation, sanitation, and protection of the said canal.”

The same expression, “construction, maintenance, operation, sanitation, and protection,” occurs also in Article 7 of the treaty giving the rights with reference to sanitation, and see for other uses of the same phrase Articles 5, 9, and 13.

In other words the entire treaty gives abundant and incontrovertible evidence that the purpose for which it was concluded was the “construction, maintenance, operation, sanitation, and protection “of the projected canal.

It is also perfectly evident from the language of the treaty that its framers made no pretense of specifying all of the things which the Government of the United States might do, nor all of the works which it might find necessary to undertake (and this latter is for the present purposes the more important), in order to accomplish the “construction, maintenance, operation, sanitation, and protection of the said canal.”

For example, in Article 2 the Republic granted to the United States, in addition to the zone of land for the purpose named, the perpetual “use, occupation, and control of any other lands and waters outside of the zone above described which may be necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the said canal, or of any auxiliary canals or other works necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the said enterprise”

In Article 4, the Republic of Panama granted “rights subsidiary to the above grants” in the use of the rivers, streams, lakes, and other bodies of water within its limits as might be “necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the said canal”

Article 6 speaks not only of the work on said canal or on the Panama Railroad, but also of “any auxiliary works relating thereto.”

In Article 13, containing the stipulations for freedom from customs duties, imposts, taxes, or other charges, the provisions are made to apply to materials “convenient in the construction, maintenance, operation, sanitation, and protection of the canal and auxiliary works.”

It is thus quite clear that the negotiators of the treaty were fully aware that other works than those specified in the convention might be necessary in the “construction, maintenance, operation, sanitation, and protection of the canal,” and that not desiring to restrict the scope of the treaty they merely provided generally for such “other works “or “auxiliary works “as the exigencies of the undertaking, when fully developed, would demand.

A few words may be added regarding the nature and extent of the grant actually made. By Article 2 the grant is¹ of the zone of land as well as of the “use, occupation, and control of any other lands and waters outside of the zone “which might be necessary and convenient for “the construction, maintenance, operation, sanitation, and protection “are [sic] made in perpetuity. Likewise a grant in perpetuity was made, as “rights subsidiary” to the first-named grants, of the right to use the rivers, streams, lakes, and other bodies of water for the purposes named. In Article 3 there was granted within the zone mentioned and described in Article 2, “all the rights, power, and authority * * * which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, and authority.”

In addition to these, the treaty specifically grants to the United States for use outside the zone certain rights usually classed as sovereign and also the power to exercise certain other rights regarded as incident to sovereignty. For example, Article 6 gives to the United States the right of expropriation. Article 7 specifically grants to the United States “within the limits of the cities of Panama and Colon and other adjacent harbors and within the territory adjacent thereto * * * the right of eminent domain.” This article also grants to the United States the right to impose sanitary regulations, etc., in connection with the sanitation of Panama and Colon; and finally, the United States is given right and authority “for the maintenance of public order in the cities of Panama and Colon and the territories and harbors adjacent thereto in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order.”

Again, by Article 6 it is stipulated that “the rights of the United States shall be superior” to the rights of private land holders or owners of private property in the said zone, or of any private rights in or to any of the lands or waters “granted to the United States by the provisions of any article of this treaty,” subject only to the condition that the United States should make compensation therefor “to the owners of private lands or private property of any kind.”

Finally Article 5 provides that “the Republic of Panama grants to the United States in perpetuity a monopoly for the construction, maintenance, and operation of any system of communication by means of a canal or railroad across its territory between the Caribbean Sea and the Pacific Ocean.”

To recapitulate: It will be observed that the treaty therefore provides first for the construction of the canal and gives to the United States Government full and complete powers in order to accomplish that purpose. In the next place the construction having been accomplished, like full and complete powers are given to the United States for the maintenance of the canal. Moreover, not only are such powers given in order that the canal may be constructed and maintained, but also in order to permit the operation of the canal. Again perceiving, as the framers of the treaty did, that the successful construction, maintenance, and operation of the canal would in a large measure (as the failure of the French companies had indicated) depend upon the sanitation of the region, powers were given not only to sanitate the zone but also the terminal cities, Colon and Panama. Finally, it being wholly and entirely obvious that the immense expenditure of money and labor in the construction, maintenance, operation, and sanitation of the canal would be wholly wasted and lost unless there was a proper protection of it, full powers were given to the United States to insure this also.

It will, moreover, be observed that Article 2 may be divided roughly into two parts: First, the grant of the zone itself, and secondly, the grant in perpetuity of the “use, occupation, and control” of any other lands and waters outside the zone “necessary and convenient” in the first place, for the “maintenance, operation, sanitation, and protection of the said canal,” and in the second place, for any auxiliary canals or “other works necessary and convenient for the construction, maintenance, operation, sanitation, and protection of the said enterprise.” That is to say, grants are made not only of what is necessary and convenient for the construction and the maintenance of the canal itself, but also of what may be “necessary and convenient” for “other works “in themselves “necessary and convenient for the construction, maintenance, operation, sanitation, and protection of said canal.”

Moreover, as has been pointed out above, not only does Article 2 thus indicate that the framers clearly understood there was necessity for auxiliary or subsidiary works, but the same idea occurs in Article 4, Article 6, and Article 13.

Therefore, it must be held that this treaty gives authority to the United States to do whatever the United States may consider is necessary or convenient for the construction, maintenance, operation, sanitation, or protection of the canal, subject to no curtailment whatsoever except only such as may be imposed in the treaty itself; and for the purposes of the point under consideration there are but two pertinent limitations, the one contained in Article 6, which provides that where the United States takes “private property of any kind by reason of the grants contained in this treaty or by reason of the operations of the United States, its agents or employees, or by reason of the construction, maintenance, sanitation, and protection of the said canal or of the works of sanitation and protection herein provided for,” it must make compensation therefor to the parties interested; and the further limitation contained in Article 11, which provides that “the United States agrees that the official dispatches of the Government of the Republic of Panama shall be transmitted over any telegraph or telephone lines established for canal purposes and used for public or private business at rates not higher than those required from officials in the service of the United States.”

In view of these facts and circumstances, it is submitted that if this Government is prepared to say, as it is understood it is, that the erection of wireless telegraph stations on the zone or anywhere within the territory of Panama is necessary either for the maintenance, the operation, or the protection of the canal, or if it is prepared to say that such wireless stations are necessary for the successful operation of other works, which works in themselves are necessary or convenient for the maintenance, operation, or protection of the canal, that then the Government of the United States has a complete and indefeasible right to erect such stations.

It would, moreover, seem to be perfectly clear that the “auxiliary works “or “other works “contemplated by this treaty as proper for the maintenance, operation, or protection of the canal must, in order to fulfil their purpose, be effective. In other words, the right to erect an auxiliary work or other work necessary or convenient for the maintenance, operation, or protection of the canal must carry with it the right absolute and complete of operating that other auxiliary or other work in such way as to make it effective for the maintenance, operation, or protection of the canal. Or, applying the principles to this case, it must be that if, as it is herein contended, the treaty gives to the United States the right to erect wireless stations for the purpose of maintaining, operating, or protecting the canal, it must also give the right, without which the first would be a barren grant, to operate such wireless stations effectively. Moreover, this view seems to have absolute confirmation in the provisions of Article 6 which seem clearly to give to the United States the right to condemn any other stations in the hands of private parties which might interfere with the operation of the stations established by this Government, subject only to the provision that for the property thus taken the United States should make reasonable compensation.

It is, therefore, submitted in conclusion, that it would not seem necessary as a matter of law to enter into any formal negotiations at all for the acquisition of any right or permission to erect and operate wireless stations under the condition indicated in the Navy Department’s report on wireless telegraph stations, either in the Canal Zone or the territory of Panama proper; and further that any interfering wireless stations owned by private parties may be treated and disposed of under the provisions of Article 6 of the treaty.

J. R. C. [Clark.]

1. The word “is” has been interpolated, with a pen, in the typewritten text.