President Roosevelt, in a message to Congress of January 4, 1904, said of this treaty: "In order that no obstacle might stand in our way, Great Britain renounced important rights under the Clayton-Bulwer treaty and agreed to its abrogation, receiving in return nothing but our honorable pledge to build the canal and protect it as an open highway."

In the message just quoted President Roosevelt was undertaking to defend his course in acquiring the Canal Zone, and his main ground of justification was that Colombia was not entitled "to bar the transit of the world's traffic across the isthmus," and that he was acting for the world at large. To quote his exact words: "I confidently maintain that the recognition of the Republic of Panama was an act justified by the interests of collective civilization. If ever a government could be said to have received a mandate from civilization to effect an object the accomplishment of which was demanded in the interest of mankind, the United States holds that position with regard to the interoceanic canal." Waiving all discussion of the question as to whether President Roosevelt in the rôle of agent of collective civilization was justified in his hasty recognition of the Panama Republic, it cannot be denied that the American people entered upon the construction of the canal with the idea that they were undertaking a great work for the benefit of the world at large. With the successful prosecution of the work, however, public opinion has to a large extent outgrown this idea of "a mandate from civilization," and now the canal is regarded primarily as a military asset to be used as a naval base, and secondarily as a commercial asset to be used in overcoming foreign competition in the upbuilding of our merchant marine.

Great Britain has fully conceded our right to adopt measures for the defense of the canal. This interpretation of the treaty was acquiesced in by Lord Landsdowne during the negotiation of the treaty in a memorandum dated August 3, 1901, and in the recent British protest we find the following statement on this point: "Now that the United States has become the practical sovereign of the canal, His Majesty's Government do not question its title to exercise belligerent rights for its protection." Great Britain has, therefore, released us from all the restraints on our action imposed by the Clayton-Bulwer treaty and fully recognizes the canal as our property, subject, however, to the pledge

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 Panama Canal Act of August 24, 1912, exempts from the payment of tolls American ships engaged in the coastwise trade. Against this exemption the British Government formally protests in a note presented to Secretary Knox by Ambassador Bryce on December 9, 1912. Sir Edward Grey, the author of this note, claims that the Panama Canal Act violates the Hay-Pauncefote treaty in two particulars: (1) in assuming that the words "all nations" in the rule quoted above mean "all other nations," and (2) in ignoring the pledge that the "conditions and charges of traffic shall be just and equitable." It is expressly stated in the preamble of the Hay-Pauncefote treaty that the general principle of neutralization established in Article VIII of the ClaytonBulwer treaty is retained unimpaired. The article referred to reads as follows:

The governments of the United States and Great Britain having not only desired, in entering into this convention, to accomplish a particular object, but also to establish a general principle, they hereby agree to extend their protection, by treaty stipulations, to any other practicable communications, whether by canal or railway, across the isthmus which connects North and South America; and especially to the interoceanic communications, should the same prove to be practicable, whether by canal or railway, which are now proposed to be established by the way of Tehuantepec or Panama. In granting, however, their joint protection to any such canals or railways as are by this article specified, it is always understood by the United States and Great Britain that the parties constructing or owning the same shall impose no other charges or conditions of traffic thereupon than the aforesaid governments shall approve of, as just and equitable; and that the same canals or railways, being open to the citizens or subjects of the United States and Great Britain on equal terms, shall also be open on like terms to the citizens and subjects of every other state which is willing to grant thereto such protection as the United States and Great Britain engage to afford.

Sir Edward Grey says: "A study of the language of Article VIII shows that the word 'neutralization' in the preamble of the later treaty is not

there confined to belligerent operations, but refers to the system of equal rights for which Article VIII provides."

The claim that the Panama Canal Act violates the provision that the charges shall be "just and equitable" is set forth thus: "Unless the whole volume of shipping which passes through the canal, and which all benefits equally by the services, is taken into account, there are no means of determining whether the tolls chargeable upon a vessel represent that vessel's fair proportion of the current expenditure properly chargeable against the canal, that is to say, interest on the capital expended in the construction and the cost of operation and maintenance."

In the foregoing pages the attempt has been merely to give the historic setting of the controversy and to make clear the points at issue. Here is a treaty, a formal contract between two friendly nations who have many interests in common, and no one can deny its binding force, that is to say, our legal and moral obligation faithfully to observe its stipulations. The United States has given official interpretation to one of its provisions, as we had a perfect right to do, in the Panama Canal Act. We had no intention of violating the treaty or of abrogating it. Great Britain puts a very different interpretation on the same provision, and she has the perfect right to say what she believes the treaty to mean. What are we to do? Are we to assert dogmatically that we are right and that Great Britain is wrong? Are we willing to go a step further and declare that we will fight for our contention against the nation who submitted the Alabama claims to arbitration and honorably paid the award? Ethical considerations aside, we are legally bound by the terms of our arbitration convention with England, signed in 1908, to arbitrate this dispute, if England demands it. Article I of that treaty reads:

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 Arbitration 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 honor of the two contracting states, and do not concern the interests of third parties.

The question of tolls cannot be said to affect the "vital interests, the independence, or the honor" of the country. Senator Root, who, as

Secretary of State, negotiated the arbitration treaty, declares with great emphasis that if we refuse to arbitrate the canal question "we will be in the position of the merchant who is known to all the world to be false to his promises."

The main objection raised against arbitration is that we could not get an impartial tribunal. Senator O'Gorman is quoted in the Washington Post of December 11 as saying: "A point that has not been sufficiently stressed is that, even if we were willing to submit to arbitration, it would be impossible to find for this case an impartial tribunal.

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The case is nominally between the United States and Great Britain, but it would in reality be between American shipping interests and the shipping of the world." There is great misapprehension as to the organization and character of the Hague Court. Nations do not sit on that tribunal as judges, but it is composed of over a hundred jurists of international repute. When a particular case is submitted each of the parties to the suit selects one or two arbitrators from the general list or panel of the court and the two or four thus selected, as the case may be, choose another member of the general court as president. The tribunal thus created hears and decides the case. With the example of Charles Francis Adams in the Geneva Arbitration and of Lord Alverstone in the Alaskan Boundary Dispute before us, not to mention the highly honorable record of the British Admiralty Courts and of the Supreme Court of the United States in prize cases, can it be fairly maintained that we could not get an impartial hearing before the Hague Court because of the interests of other nations in the issue at stake? Is it to be supposed that international jurists of the stamp of the late Professor de Martens, of Asser, Savornin Lohman, Gram, Lammasch, and Renault, some of whom have sat on as many as four Hague tribunals, would place the shipping interests of their countries above their sense of justice and their good repute as jurists?

The United States and England are the only two parties to the HayPauncefote treaty. When the agreement was being drafted the British Government proposed that Rule 1 of Article III should read as follows: "The canal shall be free and open to the vessels of commerce and of war of all nations which shall agree to observe these rules," but that implied the necessity of making them parties to the contract. The United

States, therefore, insisted that this clause should be changed to read thus: "The canal shall be free and open to the vessels of commerce and of war of all nations observing these rules." "Thus," says Mr. Hay in his memorandum, "the whole idea of contract right in the other Powers is eliminated, and the vessels of any nation which shall refuse or fail to observe the rules adopted and prescribed may be deprived of the use of the canal."

On the face of it, the Hay-Pauncefote treaty looks like a contract for the benefit of third parties, but it is evident when one looks more closely into the circumstances of its negotiation that England was not acting in behalf of the other nations, but was merely taking extra precaution to safeguard her own interests against any possible discrimination by placing the commerce of the world on the same footing. The interest of third parties, therefore, is not a direct interest, but merely a resultant interest. They cannot be made parties to the suit.

Two methods of avoiding arbitration have been suggested in the daily press. The Washington Post boldly urges the abrogation of the HayPauncefote treaty, on the ground that it is "a stumbling block to the United States, and a menace to the Monroe Doctrine." The excuse for such a drastic recommendation is that, "The treaty is voidable because the canal is American territory - a condition that did not subsist when the treaty was made." This point is fully covered by Article IV of the treaty, which is as follows:

It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the beforementioned canal shall affect the general principle of neutralization or the obligation of the high contracting parties under the present treaty.

Another suggestion, attributed by the Literary Digest, of December 21, to Senator McCumber, is to let the controversy hang on until June, 1913, when the arbitration treaty of 1908 expires by limitation, unless renewed. Other Senators have indignantly rejected such a suggestion, Senator Lodge declaring that "the United States would not stoop to tricks."

The real argument against arbitration is not that we cannot get a fair hearing, but that in the opinion of many of our best informed publicists we have put a wrong interpretation on the treaty and, therefore, will probably lose our case. Under these circumstances would it not be