AN APOLOGY FOR THE PANAMA CANAL ACT. T HE dispute between
Great Britain and the United States over the Panama Canal involves a matter which is much more important, in our judgment, than the mere question of an unexpected tax on British shipping. British shipping would survive the extra charges for the upkeep of the Canal indirectly laid upon it by the exemption of American coastwise traffic from tolls. But there is something else that would not survive. The complete mutual trust between the two nations would not survive an interpretation of the Hay-Pauncefote Treaty that per- mitted the existence of the suspicion : " The statesmen of the United States after all are not men of the most absolute political honour. If a political document admits of evasion through some technical point or some subtle and highly legal argument it is quite possible that they will take the opportunity to escape from their obligations." At present we do not entertain any such suspicions about the United States. It would be a calamity if our relations suffered a deterioration from that position of complete confidence. We hope we shall be acquitted of affectation if we repeat that we regard the questions involved in the Panama Canal Act even more from this point of view than from that of the financial penalty with which British shipping is threatened. But the very fact that we hold the repute of the United States, in the highest sense, to be at stake, makes it the more obligatory for us to consider anything in the nature of a plea of justification coming from those who maintain the right of the United States to exempt American coastwise shipping from tolls—the right to discriminate in favour of American shipping as against the shipping of the world, and thus to put an interpretation on the Hay-Pauncefote Treaty which seems to Englishmen to be quite at variance with its obvious intention. In the current number of the American Outlook there is an apology for the Panama Canal Act by Judge Samuel Seabury, Justice of the Supreme Court of the State of New York. We wish we could find in it anything to modify our opinion that persistence in the policy of the Panama Canal Act would destroy British trust in the faultless probity of American statesmen. But frankly we cannot say that we do. The article is to our thinking a thoroughly unsatisfactory performance, containing more question-begging arguments than we should have expected to find in the summing up of a judge, and leaving us absolutely unconvinced that the United States, even if all Judge Seabury's arguments were true, would be justified in withholding the Panama Canal dispute from arbi- tration.
The sub-title of the article, to begin with, begs a question—" Shall it [the canal] be American or Anglo- American ? " But surely there is no such dilemma. If the exemption of American coastwise shipping were not persisted in, the canal would simply be, in the words of the Hay-Pauncefote Treaty, "free and open to the vessels of commerce and of war of all nations." In fine, the canal would be nothing more, or worse, than neutral. It would be an " All-the-world and American " canal—open to all the world, but bearing the name and acknowledging the control of America because American enterprise and American engineering genius created it. Nor are the quotations from Grant and President Hayes, prefixed to the article, more helpful. Grant said, " I commend an American canal, on American soil, to the American people." The canal is not on American soil in any sense imagined by Grant. The strip of territory acquired by the United States for the purpose of the canal is in a foreign country belonging to the Republic of Panama, and it was acquired only by the expedient of ,hurriedly recognizing as belligerents the insurgents of Panama who had risen against the Colombian Government. This was not a bona-fide annexation of territory, recognizable and recognized by international law, such as from time to time brings a new country within the system of the United States. President Hayes said : " The policy of this country is a canal under American control. The United States cannot consent to surrender this control to any European power." We need hardly point out that the interpretation of the Hay-Pauncefote Treaty cannot possibly be made to depend upon what Hayes said a great many years before the Hay-Pauncefote Treaty was thought of. In any case, there is no idea of questioning the right of the United States exclusively to control the Canal and also (vide Sir Edward Grey's despatches passim) to fortify it. Judge Seabury recalls the events of 1849, when Great Britain (claiming a Protectorate over the Mosquito Indians) intervened to determine the conditions under which the United States should construct a. Nicaraguan canal. Mr. Lawrence, the United States Minister in London, protested against the intervention. But meanwhile Mr. Clayton, the American Secretary of State, negotiated the Clayton-Bulwer Treaty with Sir Henry Bulwer, the British Minister in Washington. Judge Seabury complains that Sir Henry Bulwer " ignored Mr. Lawrence." This seems to us to mean nothing at all unless it means that an American diplomatist was equal in authority to the American Secretary of State, and that a treaty which excited the disapproval of Mr. Lawrence was based on some kind of invalidity. We cannot go into such elusive arguments as that. Enough for us to know that the Clayton-Bulwer Treaty was negotiated and accepted by the American Government, and that it most plainly and explicitly recognized the rights of Britain in Central America. As Judge Seabury says :— " The treaty provided that neither Great Britain nor the United States should ever obtain or maintain for itself any exclusive control over the canal or erect fortifications upon it, nor occupy or exercise any dominion over any part of Central America ; and that, in the event of war, the vessels of Groat Britain or the United States must be permitted to pass unmolested, and that both parties should guard the safety and preserve the neutrality of the Canal. The treaty also provided that the parties to it bad been actuated, not only by the desire to accomplish a particular object, but also to establish a general principle,' and that they hereby agree to extend their protection, by treaty stipulation, to any other practicable communication, whether by canal or railway, across the Isthmus . . . and especially to interoceanic communi- cations . . . which are now proposed to be established by way of Tehuantepec or Panama."
That was indeed a recognition of the principle of Anglo- American control.
But all this was swept away by the Hay-Pauncefote Treaty of 1901. The point to notice is that there was really something very material and very important to sweep away in 1901, and that Mr. Hay fully recognized that Great Britain, in abandoning all her rights of control, had a right to ask for a definite thing in return. What did Britain ask for in return ? She asked for the absolute freedom of the Canal. It was to be neutralized. The third article of the Hay-Pauncefote Treaty provides that " the Canal shall be free and open to the vessels of com- merce and of war of all nations observing these rules, on terms of entire equality, so that there shall be no dis- crimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges shall be just and equitable." The Panama Canal Act notoriously proceeds upon the principle that the phrase " all nations " does not include the United States. To us it seems perfectly obvious that Lord Pauncefote and Mr. Hay both understood it to include the United States, other- wise Britain would have been giving up much for nothing. The right meaning of the phrase is the strict and obvious meaning. How does Judge Seabury defend the interpretation placed upon the words in the Panama Canal Act ? He does not strictly defend the interpretation at all. He does not join in the attempt of some American apologists to argue that philologically "all " excludes the United States and that discrimination against foreign Powers is permissible so long as it is equal discrimination against all. He takes the far bolder, and even less plausible, course of arguing that the Hay- Pauncefote Treaty has bodily lapsed by change of circumstances. Britain had rights once, he says in effect, but she no longer has any because the circumstances of the Hay-Pauncefote Treaty no longer exist. She has, after all, given up much for nothing. For the validity of every treaty depends upon the condition of rebus sic stantibus, and bow can it be said that things stand as they did, seeing that the United States is now the actual owner of the territory through which the canal runs ? Judge Seabury's reading of the British protest is that it " squarely presents to the United States the alternative of adopting an American canal policy or an Anglo-American canal policy." If any American comment has done more injustice than this to the British intention we have not heard of it. Britain acts on behalf of the shipping of the world—on behalf of the principle of universal equality—. and she assumes the disagreeable task of doing it, not because she wants any control over the canal, but because it was she who gained the concession of neutralization in return for all her rights that were signed away in 1901. As we have said already, the recognition of the rebels in Panama—a feverish affair of a few days—was a diplomatic fiction contrived in order to avoid the incon- venience of continuing to deal with the 'intractable Government of Colombia. To talk of this transaction as a formal act of annexation rendering the Hay-Pauncefote Treaty void is an abuse of words. And why, if it is necessary to regard the Hay-Pauncefote Treaty as void, has it not been formally denounced ? If Judge Seabury is right, it ought to have been denounced to prepare the ground for the Panama Canal Act. The whole argument about the voiding of the Hay-Pauncefote Treaty is, we fear, a legal after-thought of Judge Seabury's ingenious brain.
Finally, Judge Seabury turns to the question of arbitration. He admits that if existing arbitration treaties between the United States and Great Britain require the submission of the dispute to arbitration, the United States could not resist the demand for arbitration. He examines the Convention of 1899 and the Treaty of 1908. The Convention of 1899 makes certain reservations as follows :- "Nothing contained in this Convention shall be so construed as to require the United States of America, to depart from its tradi- tional policy of not entering upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign State ; nor shall anything contained in the said Convention be construed to imply a relinquishment by the United States of America of its traditional attitude towards purely American questions."
Judge Seabury returns here to the point that the Panama Canal is in American territory. That being so, the dispute has reference to a " purely American question," and the operation of the Convention is therefore ruled out. Nor, according to him, is the Treaty of 1908 any more applic- able. The Treaty provides that :-
"Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitra- tion established at The Hague by the Convention of the 29th of July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honour of the two contrac- ting States, and do not concern the interests of third parties."
To dispose of the question of arbitration under such reservations as these presents no difficulties to Judge Seabury. Vital interests, independence, honour, are all affected ! Besides a " third party," viz., the Republic of Panama, is also affected. And how can you arbitrate upon a treaty which potentially no longer exists ?
" The adoption of an American canal policy," says Judge Seabury, " is in accord with the best traditions of the United States." No doubt. But what is much more in accord with the best traditions of the United States is a policy of high-mindedness and integrity which the breath of suspicion can never tarnish. A great number of the highest and best Americans are passionately opposed to the Panama Canal Act. We are certain that Judge Seabury's highly legal argument will do nothing to divert them from what their consciences tell them is the scrupulous and honourable course. We hope that Mr. Wilson may advise the Senate to reject the Act. But even if he cannot do that, here is surely a case for arbitration if ever there was one. It is purely a question of interpretation—a case for judicial treatment—for very few Americans, we venture to say, will agree with Judge Seabury that the Hay-Pauncefote Treaty is voidable if not already tacitly voided by events. You can wriggle out of any Arbitration Treaty that con- tains reservations. But the existence of such a treaty fortunately postulates a willingness to arbitrate, and this, we are certain, is possessed by the vast majority of Judge Seabury's countrymen.
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