is based upon a sincere desire to claim nothing exceeding just consideration.

Much again has been said, with little approach to accuracy, by those who demand investigation, regarding the supposed obligation on the part of the United States to refer, as a matter of abstract opinion, the issue of the validity of the decision of the Legislature of the United States, and the construction of the international documents which such decision may affect, to any international tribunal of arbitration, whether one constituted ad hoc or one existing as a matter of international recognition in the shape of what is shortly known as The Hague Tribunal. The latter Court, gradually advancing though it may be to international acceptance, cannot yet be said to have reached the point of supplanting the traditional right and efficacy of national Courts to deal with questions of international treaty construction. When the United States is directed with newspaper unanimity, but with scant courtesy, to refer the abstract question of the capacity of its Legislature to act in accord with treaty obligations, one has only to consider the probable attitude of Great Britain if a similar statute of its Parliament was on similar grounds called into question. Firstly, Great Britain could point out that, if the perfection of impartiality is demanded, it would be difficult to constitute an international tribunal, the members of which would not be drawn from States interested in the commercial neutrality of the Panama Canal. Secondly, it could point out that its own Courts were fully qualified, according to the acknowledged doctrine of international usage, to pass upon any issue involving the application of the Law of Nations. And thirdly, it could rest upon the immemorial practice by virtue of which an Act of its Legislature has not been treated as subject to the juridical review of constituted. foreign opinion. It would be a courageous jurist who would aver that the Supreme Court of the United States, the

ultimate arbiter of the very constitution of its country, is ill-equipped, it would be a courageous statesman who would suggest that that Court could not be trusted to hold the balance fairly, for the purpose of enforcing, or at any rate of declaring, the claims of all conflicting interests. A master of the Common law of England (and incidentally Sir William Blackstone lays down also the Common law of America) points out that "the Law of Nations (whenever any question "arises which is properly the subject of its jurisdiction) is "here adopted in its full extent by the Common law, and "is held to be part of the law of the land. . . . without "which it must cease to be a part of the civilised world" (4 Comm., chap. IV); and again, a hearing must be given to Lord Mansfield (citing by incorporation very learned and irrebutable authorities), "I remember Lord Hardwicke declaring his opinion to the same effect, and denying that "Lord Chief Justice Holt ever had any doubt as to the Law " of Nations being part of the law of England." (Triguet v. Bath [1764], 2 Burr. 1478.) Again, Professor Scott (Cases on International Law, 1906), in his preface states, “Municipal law it" (i. e. International law) "was in England, Municipal law it remained, and is, in the United States." Illustrations might be multiplied, but the conclusion is irresistible, that whatever may be the value of the other conclusions of M. Bunau-Varilla (the plenipotentiary who signed the treaty under which the United States acquired from Panama the ten-mile strip through which the canal is cut), he is right in urging that the Supreme Court of the United States is competent to test any question connected with the basic law of the canal.

66

66

It is proposed, therefore, to consider, as if it were an issue depending before the Supreme Court of the United States, the question whether the recent Act of the Legislature of the United States is in contravention of the true construction of international obligations of commercial neutrality.

The documents which have to be considered are naturally (a) The Clayton-Bulwer Treaty of the 19th April 1850, in so far as it was intended to control the commercial neutrality of any inter-oceanic canal between the Atlantic and the Pacific; (b) The Hay-Pauncefote Treaty of the 18th November 1901, which was in contemplation of the specific canal now nearing completion, and incidentally the bearing of the Suez Canal Convention of Constantinople, signed between nine European States (including Great Britain) on the 29th October 1888; and (c) The BunauVarilla Treaty of the 18th November 1903, providing for the acquisition by the United States of the ten-mile strip through which the Panama Canal is cut.

The first and third of these treaties may with propriety be considered in the first place, because they contain either matters introductory, or matters relating retrospectively, to the Hay-Pauncefote Treaty itself.

The Clayton-Bulwer Treaty of 1850 was largely a selfdenying convention by which Great Britain and the United States undertook to refrain from assuming dominion for the purpose of inter-oceanic communication over any part of Central America. In so far as directly concerns the present controversy, the material parts of the Clayton-Bulwer Treaty may be summarised as follows. The contracting powers proposed to set forth their intentions with reference to any means of communication by ship-canal to be constructed between the Atlantic and Pacific Oceans; they bound themselves not to obtain any exclusive control over such shipcanal, and not to acquire, directly or indirectly, for the subjects or citizens of the one any rights or advantages in regard to commerce or navigation through such canal which should not be offered on the same terms to the subjects or citizens of the other; they bound themselves (Article III) to protect contractors for the making of such canal if undertaken on fair and equitable lines; they undertook (Article IV)

to use their influence to procure the establishment of two free ports, one at each end of the said canal; they bound themselves (Article V) to withdraw protection from the persons or company undertaking or managing the same, or establishing regulations concerning the traffic thereupon, in a way contrary to the spirit and intention of the convention-either by making unfair discriminations in favour of the commerce of one of the contracting parties over the commerce of the other, or by imposing oppressive exactions or unreasonable tolls; they engaged (Article VI) to invite every friendly State to enter into the like stipulations to the end that all other States might share in the honour and advantage, affirming it to be the great desire of the convention that the canal was to be constructed and maintained for the benefit of mankind on equal terms to all; they agreed (Article VII) to give their encouragement to such persons or company as should first offer to commence the same with the necessary capital. Then follows the famous Article VIII, which by reason of its direct importance should be transcribed in full :

66

66

"Article VIII.-The Government of Great Britain "and the United States, having not only desired in entering into this convention to accomplish a par"ticular object, but also to establish a general principle, they hereby agree to extend their protec"tion 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 inter-oceanic com"munications, should the same prove to be practicable, "whether by canal or railway, which are now proposed to be established by the way of . . . . Panama. In granting, however, their joint protection to any such "canals or railways as are by this Article specified, it "is always understood by Great Britain and the United

66

66

66

States, 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 subjects and "citizens of Great Britain and the United States on

66

equal terms, shall also be open on the like terms "to the subjects and citizens of every other State "which is willing to grant thereto such protection as "Great Britain and the United States engage to "afford."

It will be observed that the contemplation of the ClaytonBulwer Treaty was the undertaking by private persons with sufficient capital, under the encouragement and protection of the high contracting parties, to create the canal, and the stipulation that after the creation of the canal, the high contracting parties, with the adhesion of as many friendly States as possible, were negatively to seek no preponderating control, and affirmatively to enforce equity and equality in the treatment of the commerce, not only of the parties to that convention, but of all the States throughout the commercial world.

It must, of course, be conceded by all disputants that the scope and bearing of the Hay-Pauncefote Treaty which was brought into existence fifty years after were of a very diferent kind. Shortly, the main differences may be grouped as follows:

(A) The canal was not to be formed by private contractors with the benevolent encouragement of Great Britain and the United States, but was to be created wholly with the capital and through the efforts of the United States.

(B) The adhesion of States other than Great Britain. and the United States was not to be invited, nor were