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treaty permitted-the building of the canal by the government. It should be borne in mind that the later acquirement of sovereign privileges from the Republic of Panama did not affect the rights and duties of the United States as to this matter; for in Article IV of the HayPauncefote Treaty "It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the afore-mentioned canal shall affect the general principle of neutralization or the obligation of the High Contracting Parties under the present Treaty." The obligation of the United States consequently remains what it was just after the Hay-Pauncefote Treaty. Doubtless there is a right to free transit for vessels engaged in constructing or maintaining or protecting the canal, such a right being covered by the words of Article II which say that the "Government shall have and enjoy all the rights incident to such construction," and perhaps it is fair to say that all public ships of the United States are thus exempted, since all of them when using the canal are in a sense protecting it; but it would be an error to confuse such ships with ships in no way belonging to the government or used by it, and as to these wholly private vessels, though belonging to citizens of the United States, it is reasonable to contend that according to general principles of law, even without a treaty, there is a duty of equality. Let it be remembered that when a government engages in ordinary business, for example in the sale of intoxicating liquor, it is not performing a governmental function, is not exercising any rights of sovereignty, and is subject to the ordinary rules pertaining to such a business. Let it be remembered, too, that the conducting of a canal for general use is not the exercising of a governmental function, but is the pursuit of a business clearly belonging to the class of public callings and charged with certain peculiar duties. Is it conceivable that when the United States, by a treaty obtained when it was not as yet entitled to sovereign powers in Panama, arranged for possibly entering upon a public calling, it is to be understood to have intended to reserve in that treaty, otherwise than through the use of extraordinary language, a right to carry on that business in a discriminatory manner which its own courts and its own Congress, in dealing with similar callings, have pronounced unbusinesslike, impolitic, dishonorable, and illegal?1
These, then, are reasons-and doubtless others can be given
1This last line of thought has been presented more elaborately in an article entitled "Exemption from Panama Tolls," AMERICAN JOURNAL OF INTERNATIONAL LAW, Vol. 7, p. 233 (April, 1913).
for believing that the United States is included among "all nations observing these Rules," and that vessels belonging to the United States or to its citizens have the right of use, the right of equality, and the duty of observing the rights of others to similar equality, as prescribed in the "all nations" clause.
Of these five reasons, two appeal to words in the context of the treaty itself to show that the United States is to be one of the "nations observing these Rules"; two appeal to instruments referred to by the treaty; and one appeals to that general law which must have been in the minds of the persons framing and adopting the treaty and which should now be in the minds of the persons reading and enforcing it. These five reasons may be condensed thus:
(1) It would require extraordinary language to authorize a belief that Great Britain, while still clinging to the neutralization article of the Clayton-Bulwer Treaty, meant to give up the right to use the canal on equal terms with the United States.
(2) As the United States gets no rights except "subject to the provisions" of the treaty, it must be understood to be one of the "nations observing these Rules."
(3) As the United States adopts the rules, it must be understood to be one of the nations observing them.
(4) It would require extraordinary language to show that the parties to the Hay-Pauncefote Treaty, while referring to the Convention of Constantinople, meant to establish a rule of inequality wholly hostile to the words and spirit of that convention.
(5) It would require extraordinary language to indicate an intent to depart from that doctrine of equality which by both English and American law is attached to all public callings.
All these reasons may be reduced to one-that as in these days equality is the only ideal justice, a treaty must be understood to establish equality unless there is emphatic language to the contrary.
Is there emphatic language removing from the United States the normal rule of equality and permitting the United States to make discriminations in behalf of its own citizens? Let the "all nations" clause be read again:
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 or charges of traffic shall be just and equitable.
Does it not seem that this clause emphasizes equality rather than inequality? Yes; and it seems also that the United States may well pride itself both upon being the nation adopting these rules and also upon being included among "all nations observing these Rules."
The CHAIRMAN: Gentlemen, the question is open for general dis
Mr. JOHN H. LATANÉ. Mr. Chairman and Gentlemen: I wish to take up one or two points which have been brought up by Mr. Nixon, and also some points raised by Mr. Olney.
Mr. Nixon's paper was exceedingly interesting and suggestive. I should like to have an hour in which to discuss it. But there my commendation of the paper ends.
If you will just notice the clause that he laid so much stress upon (contained in the first draft of the Hay-Pauncefote Treaty)—"The canal shall be free and open to the vessels of commerce and war of all nations which shall agree to observe these rules,"-you will remember that he contends that the words "shall agree" show clearly that the United States was not included in the term "all nations." Now I will ask Mr. Nixon to apply exactly the same line of argument to England, and we have a complete reductio ad absurdum. If the use of the future tense excludes one of the parties to the treaty, it must necessarily exclude the other. Does Mr. Nixon mean to tell us that England is not bound to observe the rules of this treaty because she was one of the signers of this treaty and that the treaty was intended to bind only those Powers which should agree to it at some future time? He also appears to adopt as the fundamental basis of his paper the assumption that England's rights in regard to the canal are established and enlarged by this treaty; whereas, as a matter of fact, England's rights were restricted by this treaty, and Professor Wambaugh has shown very clearly that we can not, therefore, think for one moment that England gave up any rights under the earlier treaty unless that fact was very clearly stated in the Hay-Pauncefote Treaty.
In Mr. Olney's paper there were also some rather strange logical fallacies. In fact, his paper sounded like the argument of counsel in
a case. He used the term "United States" in three or four different The paper was logical in form, but sometimes in referring to the "United States" he was referring to the Government of the United States, and sometimes in referring to the "United States" he was referring to the ships owned by American citizens. His whole argument was thus invalidated.
I object to his use of the term "customers" as applied to the nations using the canal. But if we assume that the United States has set up a baker's shop or some other commercial enterprise down there on the isthmus, and that the nations of the world are to be regarded as "customers," we may ask the question, "Are not the citizens of the United States also Uncle Sam's customers in regard to the canal?"
The whole discussion of this question as far as it relates to the treaties reminds me very much of a story told of old Governor Letcher, of Virginia,—“Honest John," as he was affectionately called. After he retired to Lexington to resume the practice of law, a client came into his office one day and said, "Governor, I signed a contract here some months ago and I want to see if you can help me to get out of it." The Governor read the contract very carefully and then inquired, "Who drew this contract?" The client replied, "I drew it myself." The Governor then said, "I thought so! If you had gotten a lawyer to draw that contract, he would have left a loophole for you, but since you were fool enough to draw it yourself, you have stated your obligations under the contract so clearly that there is nothing I can do for you."
I am afraid that a good many treaties are made in the way that lawyers draw contracts. I do not believe it would be possible to draft a treaty so that Mr. Nixon and Mr. Olney, by the combined ingenuity which they have shown in their papers, would not be able to dig a Panama Canal through its terms if they wanted to do so, by the method of argument they have employed today.
It seems to me that we are bound to interpret this treaty in the light of the Clayton-Bulwer Treaty, to which reference is made in the preamble, and also to some extent in the light of the Treaty of Constantinople, which is quoted in the text. I will admit that the expression "all nations" and the clause containing it are not very clear; but I believe very firmly, from a study of all the correspondence in the case and of the situation of the two Powers at the time that the HayPauncefote Treaty was being drawn up, that both England and the United States at that time believed that the term "all nations" did
apply, and that the other provisions there, except those specially excepted, likewise applied to the United States.
If we are to accept the interpretation that some people put upon this treaty, what becomes of Mr. Roosevelt's main ground of justification for the seizure of Panama? He claimed to be acting as the agent of collective civilization, exercising an international right of eminent domain. After that, having gotten the territory, we turn around and say, "The canal is our property, it is built with our money, and therefore our ships should go through free." Of course there is a very apparent fallacy here. "The canal is our property," meaning the property of the United States. "It was built with our money," meaning the money of the people of the United States," and therefore our ships should go through free,"-"Our ships"! What do we mean by "our ships"? "Our ships" are the ships of a small group of ship-owners, and they are not the ships of the people of the United States. That fallacy is very plausible, but it needs only to be pointed out to be apparent as a fallacy.
Professor ALBERT BUSHNELL HART (of Harvard University): Mr. Chairman, it is a very great pleasure to hear our international lawyers so cordially disagree, especially so to the observer and student of diplomatic history, because he feels sure that so long as he is active, there will still be new material for him to work upon and contrary views for him to set forth and to reconcile if he can.
As a student and historian of diplomatic affairs, I beg to suggest three different historical elements in this problem. Without taking ground upon the immediate issue of this debate, I wish to point out three things which must affect any judgment of any question relating to this treaty and to this controversy.
The first of these is that the Hay-Pauncefote Treaty is a residuum. It is not a creation of the diplomatists of two nations facing a new crisis and coming together to find a way out; but it is a deliberate alteration of a previous status, as is evident from the extracts so cogently set forth by Admiral Stockton and Mr. Nixon. It is clear that when this question first arose as a national question, which was about 1835, everybody in the United States took the ground that any canal that was constructed must be an international affair, in the sense that its use was to be common and equal to all nations. And why? Because the United States was one of the weak Powers. The United States was one of the Powers that might be shut out by any other