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treaty for what they term its impracticability. But we must remember that Theodore Roosevelt, John Hay, Ambassador Choate and the United States Senate affirmed it, and it, no doubt, was deemed all-sufficient in word and letter, until the toll exemption bill was brought forward and enacted when the canal was nearing completion.
The treaty was the work of statesmen and seems to have been the only thing desired in the ante-canal era. But it is something else to-day; a new treaty is called for. But who would have prescience sufficient to draft it?
There is one vital question under this treaty, and. it has been debated probably more than any previous question, saving only the omnipresent tariff contention. The treaty requires that vessels of "all nations" shall have equality of rights and that there shall be no discrimination against the "subjects and citizens" of any nation. There ought to be no trouble in knowing what the words "all nations" comprise.
Article 8 of the Clayton-Bulwer treaty states: that the parties not only desire in entering into this convention to accomplish "a particular object," but also to establish "a general principle" they agree to extend their protection by treaty stipulation to any other railroad or canal across the isthmus either at Tehauntepec or Panama.
The words, "to establish a general principle,” have a very important significance both in the preamble and body of the new treaty. The preamble says that the United States may build the canal without "impairing the general principle of neutralization established by Article 8" of the superseded treaty. It would appear that the "general principle" in the old treaty was "neutralization" and that both meant equal terms to the con
tracting parties and particularly naming them. It is claimed by England and by many in this country that "neutralization" was carried forward from the old to the new treaty; and that this meant equality of tolls between England and America as well as between all other users of the canal; and many claim that we agreed, if England gave up her claim under the old treaty, that America would treat the English subjects on the same terms with her own citizens.
It must be noted that the Hay-Pauncefote treaty is made by no nations only America and Great Britain. It should be binding on both equally if that was the intention. If we built the canal almost entirely for ourselves we must find the right in some other proceeding, for it does not clearly so appear in that treaty. All civilized nations are interested in the precedents formed by interpretations given internationally to treaties. They become rules governing future actions. Home politics should never be allowed to extend so far as to injuriously affect our international relations. Every leading nation should be anxious to observe its compacts without being advised about it. Only in a clear case should they persistently contend. Many lawyers have argued correctly that Article 8 of the old treaty was only an agreement to make a treaty in the future. But what of this? The Hay-Pauncefote treaty was made as and for a full compliance with the promise. The rights are now determined by the new treaty aided by anything of the old that is expressly saved in the new.
There has been a great struggle in Congress over the six rules brought into the Hay treaty from the Suez Canal regulations.
Article 3 says that the canal shall be free to all nations observing these rules. From this the attempt is made to scrutinize deeply to see who might be excluded
or included in the words "all nations." All who obey the rules are included, and all who disobey are excluded.
It may be said that our nation is not disobeying, and that the rules are not applicable to us. All have the right to use on equal terms until the rules are violated by some nation, then it will be compelled to pay the penalty. Why did the United States adopt the rules in advance if they were put in at her instance alone? If England has no interest in them why can we not change them at pleasure? Did both England and America draft them into the treaty?
In these days, laws prohibit almost everything; but everybody does not violate all of them. Some nations might come under the condemnation of one or more of these "Suez rules," and so might the United States perhaps. All nations that observe them may use the canal on equal terms. On equal terms with what standard? Perhaps with a standard fixed by the operator. Would the United States be compelled to give free tolls to her citizens whether she desired it or not? We are now going by "precise rules," and it would not do to have too many different rates. There is only one rate prescribed by the rules.
These rules relate almost entirely to belligerents; but nations are not always in war. This being so, all nations, including the United States, would not be under the rules only when at war, and this, with some nations, might never arise. We gain but little by attempting to prove what countries are included in the words "all nations" by resorting to any abstruse reasoning about the "six rules." The nations observing the rules get through; those breaking them are excluded. When a vessel comes to the canal there is a presumption of innocence until proven guilty. If there were no war, all
would be innocent and ought to be able to pass at the one specified rate.
It has been said that the preamble is no part of the treaty and may be disregarded. This would be impossible in this particular case because no canal is specified in the articles of the treaty, and we are bound to refer to the preamble to define the canal or the treaty might be wholly void. The preamble says: The construction of a ship canal to connect the Atlantic and Pacific Oceans by whatever route may be deemed expedient.
The preamble is no part of a statute but it is often an all important part of a contract or treaty. It is an admission of a vital fact relating to the contract or treaty, and acts as an evidentiary estoppel and is regarded as admitted truth. Little vs. Watson 32 Maine 214.
By securing the new treaty America was delighted and immediately set about to negotiate for a canal strip and franchise; for no land was yet purchased. The struggle in New York, Paris, Colombia and Nicaragua went on at times almost violently. The question had to be threshed out before a final award was given. Circumstances so directed that the inchoate French canal along the Chagres was adopted. Americans took the place of Frenchmen and the work went on most systematically and courageously to full completion.
Note: England and America made the treaty, and it provides that all nations "observing the rules" shall have equal tolls. Whatever rate high or low-that America sets for her private citizens, must be the rate for all other nations who keep the rules. The lowest rate becomes the standard.
FRANCE AND THE ISTHMUS.
As far back as 1836, a French Company secured a concession to establish roads and a canal across Panama; and Louis Philippe sent his chief engineer, Napoleon Garella, to survey a canal route; he selected Limon Bay as the Atlantic entrance. This grant was allowed to lapse.
Bonaparte Wyse much later acquired a grant from Colombia for a canal by the Atrato river. This did not appeal to the late French builders so Wyse hastened to Bogota, and on May 18, 1878, permission was granted him to build "anywhere across the isthmus."
De Lesseps having opened the Suez Canal in 1869 under a blaze of glory, France believed that he was the man for the occasion and could easily solve the Panama problem; so what was termed an International Congress of Engineers was called at Paris in 1879 to pass on plans and schemes for building a canal. Only a fraction of the delegates were engineers. The Congress was presided over by de Lesseps himself and was largely under his control. It rejected all proposals except two; a lock canal at Nicaragua and a sea-level canal at Panama.
Godin de Lepinay, a member of the Congress expressed the idea which has been followed since by the American government; erect a dam across the Chagres river near its mouth on the Atlantic side and another across the Rio Grande on the Pacific side. Then let the water from the rivers rise behind these dams to the height of 80 feet above sea level. Then cut a channel