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the inhabitants of the United States, entitled such inhabitants to conduct their fishing operations in treaty waters by employing as members of their fishing crews persons who are not inhabitants, although such non-inhabitants derive no benefit from the treaty in their own right.
The award on the third and fourth questions determines, in accordance with the contention of the United States, that American fishermen, while enjoying their fishing liberties on the treaty coasts and while resorting to the non-treaty coasts for their treaty privileges of shelter, repairs, wood and water, cannot be subjected to the payment of light, harbor, or other dues which are not imposed upon local British fishermen, and cannot be required to enter and clear at customs houses, and that the obligation they are under of identifying themselves as entitled to treaty rights would be sufficiently fulfilled by reporting their presence on the coast to some duly authorized official, if convenient opportunity is afforded, and by exhibiting, when called upon to do so, the credentials of their national character.
The decision of the seventh question was also in favor of the United States, the award holding that the inhabitants of the United States, whose vessels resort to the treaty coast for the purpose of exercising their treaty liberties, are entitled to have for those vessels when duly authorized by the United States in that behalf, the commercial privileges which are accorded by agreement or otherwise to United States trading vessels generally, provided that the treaty liberty of fishing and the commercial privileges are not exercised concurrently.
The results thus secured, as already stated, have been accepted on both sides as a fair and satisfactory settlement of the fisheries controversy, not perhaps with respect to each detail but taken as a whole. This unexpectedly harmonious outcome is doubtless due to the fact that in this arbitration, for the first time in the history of the controversy, an opportunity was afforded for a comprehensive and impartial presentation and examination of all the material and pertinent evidence produced on both sides bearing upon the true intent and meaning of the treaty provisions. None of the diplomatic discussions in the past have dealt. with all of these questions together, and it was inevitable in a controversy extending back over so many years that both sides should not have had a common understanding of all the facts out of which the questions at
issue arose. It is quite probable that if before this arbitration both parties had been in full possession of all the facts as they have been developed and presented upon this arbitration, an agreement could have been reached without recourse to arbitration. The importance of reaching a common basis of fact in the discussion of international disputes, before submitting such disputes to arbitration, is not always appreciated, and resort might be had more frequently with advantage to the hitherto somewhat neglected expedient of employing an impartial commission of inquiry for the purpose of securing an agreed statement of facts as a basis for reaching, if possible, an adjustment by direct negotiation between the parties, rather than by arbitration.
CHANDLER P. ANDERSON.
THE PANAMA CANAL ACT AND THE BRITISH PROTEST
The Panama Canal project has its roots deep in the past. The diplomatic complications presented by the enterprise have been as difficult to overcome as the engineering obstacles. Now that the dream of ages is about to become a reality, certain of our newspapers, impressed with the magnitude of the task which the United States has undertaken and carried well-nigh to completion, are asking impatiently, what rights has Great Britain in the canal, why should she venture to dictate what use we shall make of our own property? Merely to say that England has rights under the Hay-Pauncefote treaty does not appear to satisfy these critics. They ask again, why did the United States ever give England any voice at all in the matter? In order to answer this question we have to go back to the middle of the last century when the Clayton-Bulwer treaty was negotiated and see what the relative positions of the United States and England with respect to the isthmus were at that time.
The acquisition of California in 1848 and the rush to the gold fields the following year first made the isthmian canal project a live issue. The great transcontinental railroads which fifteen or twenty years later established direct overland communication with the Pacific coast were then scarcely thought of. American engineers at that time and for years afterwards considered the Nicaragua route the most feasible. one for an interoceanic canal, but England held Greytown, the Atlantic terminus of that route, as well as a protectorate over the Mosquito Coast. In view of this fact and of Great Britain's naval supremacy in the West Indies, it was evident that the United States could take no step in the construction of a canal without arriving at an understanding with the British Government. Under these circumstances the ClaytonBulwer treaty was negotiated and in due course ratified by the Senate. Besides pledging each to the other never to obtain or maintain exclusive control over the canal, never to erect or maintain fortifications commanding the same or in the vicinity thereof, never to colonize or exercise
dominion over any part of Central America, the two contracting parties agreed that the canal should be neutralized in the event of war between them, that other nations should be invited to accede to the treaty, and that the general principle established in this treaty should apply not only to the Nicaragua route but also to the Panama or any other route that might be adopted. Thus it will be seen that Great Britain gave up Greytown, her protectorate over the Mosquito Coast, and the right to acquire territory in Central America, and received in return an equal voice with the United States in the control of any canal that might be built through the isthmus at any point. The treaty was criticised at the time as a violation of the Monroe Doctrine, but when we consider the relative positions of the two Powers and the check which the treaty placed on the extension of British influence in Central America, such criticism does not appear to be well founded.
Thirty years later, stirred by the French operations at Panama, President Hayes declared in a special message of March 8, 1880, that it was "the right and the duty of the United States to assert and maintain such supervision and authority over any interoceanic canal across the isthmus" as would protect the national interests and that the canal would be "virtually a part of the coast-line of the United States." This was intended to apply to a canal constructed by French capital. The following year Mr. Blaine, as Secretary of State, undertook to get England to acquiesce in the new policy, and argued at length that the Clayton-Bulwer treaty had been practically superseded by the changed relations of the two Powers, meaning the increased prestige of the United States on this continent, and was no longer binding. His successor, Mr. Frelinghuysen, went a step further and declared the treaty "voidable at the pleasure of the United States." He did not, however, venture to declare it "void." The British Government met these arguments by stating quietly that it would adhere to its rights under the treaty, intimating that if the treaty were abrogated England would put herself in the same position which she occupied prior to its negotiation.
Later, Mr. Olney, in a review of the situation, declared: "Upon every principle which governs the relations to each other, either of nations or of individuals, the United States is completely estopped from denying that the treaty is in full force and vigor. If changed conditions now
make stipulations, which were once deemed advantageous, either inapplicable or injurious, the true remedy is not in ingenious attempts to deny the existence of the treaty or to explain away its provisions, but in a direct and straightforward application to Great Britain for a reconsideration of the whole matter." It was precisely in this spirit that Mr. Hay negotiated with Lord Pauncefote in 1900 a new treaty.
The first draft of the Hay-Pauncefote treaty was considered objectionable by the Senate because it still recognized England's joint responsibility with the United States for the neutralization of the canal, including the regulation of traffic, and provided for the adherence of other Powers. The Senate, therefore, amended the treaty, but in such a way that the British Government refused to accept the amendments. After the lapse of a year a second draft, meeting in the main the views of the Senate, was formulated by Mr. Hay and Lord Pauncefote and finally ratified by the Senate, December 16, 1901. This treaty is still in force. Article I expressly abrogated the Clayton-Bulwer treaty. Article II provided that the canal might be constructed by the United States directly or under its auspices and that it should be under its exclusive management. In Article III the United States agreed to adopt as "the basis of neutralization" substantially the rules of the Constantinople Convention of 1888 for the free navigation of the Suez canal. These rules as modified are stated in the treaty under six heads, the first declaring that "The canal shall be free and open to the vessels of commerce and of war of 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." The remaining rules forbid the blockade of the canal, regulate the passage of war vessels, prizes, troops and munitions of war, and forbid any acts calculated to injure the canal or impair in any way its operation.
"These rules," said Secretary Hay in a memorandum prepared for the Senate Committee on Foreign Relations, "are adopted in the treaty with Great Britain as a consideration for getting rid of the ClaytonBulwer treaty, and the only way in which other nations are bound by them is that they must comply with them if they would use the canal."