Page images

ideals, and more carefully selected judges for mixed commissions and occasional tribunals. Arbitral decisions are coming more and more to represent the application of principles of law and equity by trained jurists working in a judicial spirit instead of by arbiters animated by a mere desire to compromise the issue. In a word, in the settlement of international differences, more advanced judicial methods and a better judicial organization are taking the place of the older system of haphazard, compromising arbitration.

The defects in the arbitral system of the past have been due mainly to a want of care in the selection of judges, or to the lack of a carefully drafted agreement clearly defining the questions at issue and the rules of procedure to be observed. But none of these defects are beyond remedy, and the Hague Conferences of 1899 and 1907 have furnished us not merely with a better method of selecting judges than was previously in vogue, but also with an elaborate code of arbitral procedure which should prove adequate in most cases.

As to the alleged impossibility of finding fair and impartial judges to settle this particular disagreement, it may again be admitted that the difficulty is a real one. But we are here dealing with a difficultynot an impossibility. It is true that all the maritime Powers of the world (including those of South America) are in a sense interested in the decision of this case. It has been suggested that "Switzerland is perhaps the only country capable of furnishing international jurists. of high standing, who would probably be free from all pressure of selfish public opinion when acting as judges of the case."3

Switzerland could undoubtedly furnish them. So could many other countries, including Great Britain and the United States. In a tribunal composed wholly of arbitrators selected by the interested governments for the settlement of the Alaskan boundary dispute (1903), Lord Alverstone, the president of the tribunal, sustained the contention of the United States that it should continue to enjoy a continuous strip of mainland separating the British territory from the inlets of the sea. In nearly all countries of the civilized world there are today international jurists who, whether engaged in the practice of law at the bar, administering it on the bench, or holding chairs in our universities. and law schools, possess the requisite knowledge, courage, and judicial spirit to declare and administer the law applicable to this and similar

The Outlook for December 7, 1912.

differences of a legal nature. The time has, indeed, passed when it can be seriously maintained that such disputes are incapable of judicial solution. Least of all can the United States afford to refuse to settle such a controversy whether by arbitral or judicial methods.

The CHAIRMAN. Yesterday morning the discussion was quite comparable with the atmosphere. We trust that the whole question now before us may be open and that we may have some of the warmth of yesterday's discussion in the discussion of this morning. The question is open for discussion.

Mr. EDMUND F. TRABUE. Mr. Chairman, coming from the Ohio Valley, State of Kentucky, international law with us is almost academic. Nevertheless, we notice what is going on in Congress, and we cannot understand why a million dollars a year of our money should be given away for the purpose of teaching Great Britain that we are going to attend to our own affairs in our own way.

Now, taking up very briefly the points which have been raised. Mr. Oppenheim, to whom Mr. Taylor has referred, has just published a little work upon the subject of these canal tolls, and has taken the position that we have no right to exempt the coastwise trade of the United States from the payment of such tolls, which neutralizes the authority of Mr. Oppenheim on the point for which he was cited by Mr. Taylor; but assuming that Mr. Oppenheim is wrong in claiming that the exemption of the coastwise tolls would raise the tolls to be paid by the other nations, and assuming, based upon Mr. Emory Johnson's statistics, that the tolls of other nations will not be raised, is it a sufficient answer to Great Britain, and more especially is it a sufficient answer to the people of the United States, who do not desire their money given away at such a rate, to say that because we may grant a bounty to any traffic, therefore we may exempt that traffic from tolls? Would not that argument be as applicable to the coastwise traffic of Peru, or Chile, or Brazil, or Argentina, if we should feel that it were to our benefit and our advantage to grant a bounty to the traffic of such countries? Could any foreign country claim that we have not the right to grant a bounty to such traffic; and would it follow that, because we had a right to grant a bounty to such traffic, therefore we might exempt that traffic from the payment of tolls? If so, where would the argument end, and what would become of the provision in our treaty for neutralization?

Responsive to Mr. Hannis Taylor's canon of treaty construction, that change of territorial dominion gives us a right to abrogate the Hay-Pauncefote Treaty, notwithstanding that treaty expressly provides the contrary, because our purchase of the zone was not contemplated when the treaty was made, it is obviously untenable, as would instantly appear if such a canon of construction were applied to the commerce clause in the Federal Constitution, for it would prevent the application of that clause to railroads, to the telegraph, the telephone, and the wireless, for none of these was within the contemplation of the framers of the Constitution.

We have heard here of the history of this treaty; that the ClaytonBulwer Treaty was sought by the United States and not by Great Britain; then that it was modified upon the request of the United States, which sought the Hay-Pauncefote Treaty; that these treaties were simply the results of negotiations begun long previously, as far back as 1835 and even probably originating with the letter of Mr. Clay in 1826, with the representation throughout that the United States did not seek a selfish advantage to itself, but that the canal should belong equally to all the nations in the world.

Now, why shall we, at this day, when the whole world has taken us at our word, when we are accomplishing nothing by it except giving away a million dollars a year, go back upon our assurances for all past time? If we have a foot to stand on, we can certainly show it to a court of arbitration, and, as has been so well said here, this is not an occasion for the United States to depart from its traditional policy of arbitration.

The CHAIRMAN. Is there anyone else who desires to be heard?

Mr. EMORY R. JOHNSON. I do not wish to participate in this debate for a number of sufficient reasons, but I wish simply to correct a misapprehension. I have not said that the statistics of traffic and possible revenue indicate that the tolls should not be higher upon foreign shipping as a result of the exemption of the coastwise traffic; nor am I able to interpret my statistics as showing that the foreign shipments might not be charged higher tolls if American ships do not pay tolls.

Mr. TRABUE. I simply misunderstood Mr. Johnson, and I am glad to be corrected; but his statement just made further enforces my

proposition that with Great Britain, as with all other nations, competition is most important; so, regardless of the question of the size of the tolls, Great Britain and all other countries have that interest in the equality of tolls.

Professor N. DWIGHT HARRIS. It would be impossible to answer in a few moments the able arguments in at least two of the papers that have been read this morning. I think some of them are almost unanswerable; but there are just one or two points that occur to me, on which it might be interesting to speak, in the way of condensing our thought on what has been said.

Anyone who has read the debates in Congress and in the Senate concerning this Canal Bill, and particularly those on the amendment to the bill, which, by the way, came from the minority report and not from the majority, knows that the question was settled not at all from the standpoint of international law, and not at all from the standpoint of what might be a dignified attitude for the United States opening the canal to the interests and commerce of the world to pursue, but from the entirely selfish standpoint of what the people of the United States, at least assuming that Congress and the Senate of the United States represented the people of the United States at that time, felt that they wanted to do with their own canal. They proposed to do as they pleased concerning the use of the canal by United States vessels, and to interpret the treaty as best suited their own purposes.

Now, it was very unfortunate that Congress attempted to lay down. a policy itself in this way. It hampered the State Department, which had not reached the point in their discussions with Great Britain as to know exactly where they were coming out, as we might say. But when Congress went to work and passed an amendment giving free passage of the canal to all vessels engaged in our coastwise trade, it embarrassed the State Department and put it in a very difficult position.

It seems to me that if Congress was reasonable in this matter and wished to put the United States in a position where it could handle the matter in the most diplomatic and most advisable way, a way which would redound to the interests of the United States as well as to the interests of international law, Congress should annul that amendment, so that the United States Government could have a free hand. I should like very much to see this done; and then, having a free hand,

it would be quite possible for the United States Government to take up the argument again with Great Britain in a very courteous and direct way, and to reach a satisfactory understanding upon the points in question, at least as far as it is possible to do so through the channel of diplomacy.

Now comes that very valuable suggestion which was made here today, and which was also made by that distinguished writer on international law--Mr. Westlake-that it is possible to arbitrate even a political question. It would, therefore, seem to be within the possibilities for the United States to submit to arbitration (if it appeared desirable, and a wise thing to do) the treaty some of the terms of which seem to be in doubt, or the interpretation of which it may not be possible for the two countries to come to a definite agreement upon.

So I think that, if we would let the State Department have an opportunity to work this problem out in a fairly scientific way, from the standpoint of international law, it would be possible for the whole thing to be amicably and legally and satisfactorily settled.

I thank you.

I am

General PETER C. HAINS. Mr. Chairman and Gentlemen: a layman, but I have been very much interested in the discussion that has been going on here for the last two days in respect to the Panama Canal. It was my fortune to be on the original commission that recommended the Panama Canal route as the best one on which the United States should construct its canal. Subsequently, I was on the second commission, known as the "Constructing Commission," and did a little work, I hope, towards the prevention of the adoption of a sea level canal and the adoption of a lock-canal like the one they are now constructing.

At that time, I had occasion to look into the law as laid down by the Hay-Pauncefote Treaty, and I noticed that the word "neutralization" occurs three times in that treaty. Being a layman, I was anxious. to find out just exactly what "neutralization" meant. I found on examining authorities-I do not know whether I was accurate or not in my finding that a neutralized canal was the very reverse of neutralized territory. It was a canal that was free and open to all, and one which had no fortifications commanding the entrance. It seems to me that that is what "neutralization” meant at that time. I do not lose

« PreviousContinue »