States were to enjoy in New Granadian ports, including those of Panama, "all the exemptions, privileges and immunities, con cerning commerce and navigation, which are now or may hereafter be enjoyed by Grana dian citizens, their vessels and merchandise; and that this equality of favors shall be made to extend to the passengers, correspondence and merchandise of the United States in their transit across the said territory, from one sea to the other. The government of New Granada guarantees to the government of the United States that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall be open and free to the government and citi zens of the United States." The article goes on to amplify this privilege by stating spe cifically that the citizens of the United States and their property should have in all respects the same transit rights as belonged to the citizens of New Gianada. Thus whatever route for trade across the Isthmus the future might develop, whether highway, railway or canal, though the latter was particularly in mind, its use was to be granted on equal terms to our people. This was the grant of a privilege, not re ciprocal bui unilateral, and therefore requir ing a consideration. This consideration this same Article 45 goes on immediately to specify, in these terms: "And in order to secure to themselves the tranquil and constant enjoyment of these ad vantages, and as an especial compensation for the said advantages and for the favors they have acquired by the 4th, 5th and 6th articles of this treaty, the United States guar antee positively and efficaciously to New Granada, by the present stipulation, the per fect neutrality of the before-mentioned Isth mus, with the view that the free transit from the one to the other sea, may not. be inter rupted or embarrassed in any future time while this treaty exists; and in consequence
the United States also guarantees, in the same manner, the rights of sovereignty and property which New Granada has and pos sesses over the said territory." Thus the United States pledged its own abstention, and also undertook the duty and burden of neutralizing the Isthmus and main taining any future transit way free from in jury, the burden, that is, of protection. For neutralization undertaken by a single State obviously means protection, since real neu tralization implies a self-denying agreement on the part of all related powers, each for itself.1 This stipulation did not take away New Granada's duty of preserving order, but supplemented it. So Mr. Cass declared in 1857, as quoted below. In the performance of this duty on a number of different occa sions, to protect the peace and the property of the Panama railway, forces have been landed from United States ships. But see what this duty of protection is now construed to mean. The President's apologia, in his message to Congress of December 7, 1903, thus describes it: "The treaty vested in the United States a substantial property right carved out of the rights of sovereignty and property which New Granada then had and possessed over the said territory." By a complete confusion of ideas, a duty has changed into a property right. More than this, the asserted property right, exist ing originally under New Granadian sover eignty, is now construed as existing in dero gation of, to the exclusion of, that sover eignty. It is a well-known rule in the construction of treaties, that a provision inserted for the benefit of one of its contracting parties must be strictly construed, on the ground that the party for whose benefit it is inserted must see that a provision in its favor is expressed 1 See Wharton's Digest of the International Law of the United States, § 145.
