Atlanta Georgian. [volume] (Atlanta, Ga.) 1912-1939, 1914-03-15
BY FRANK FEuILLE,
Chief Law Officer Of the Isthman Ca
nal Commission

II
address to Congress, in which
he appealed for the immediate
repeal Of the Panama Canal act
which diseriminates in favor Of
American coastwise shipping and
the vessels of the republic of Pana-
ma, has opened anew the entire
question of the legality and moral
right OF the act, when reviewed in
connection with the Hay Paunce-
fote treaty.
While the President can he the
only judge of the other pressing
reasons Of which he spoke, the stu
dent of history and international
law can judge of the facts and the
merits of the arguments.
In 1850 the United States and
Great Britain signed the Clayton
Bulwer convention to promote the
building of canal by the Nicara-
guam route, and. when constructed,
jointly to protect it against unjust
detention, confiscation, seizure or
any violation whatsoever.
The contracting parties also
agreed that neither would directly
or indirectly obtain the exclusive
benefit of the canal or its vicinity
or assume or exercise any dominion
over Nicaragua. Costa Rica, the
Mosquito Coast or any part of Cen
trail America.
When the Clayton Bulwer con-
vention was made, the United
States was under treaty obligations
with New Granada, now Colombia,
to guarantee to that Government
neutrality of the Isthmus of Pana
ma, with a view that free transit
from one ocean to the other might
be not interrupted The United
States was exercising protecto
rate over the Isthmus of Panama
in 1850, when the Clayton Bulwer
convention was made, In return
the United States was to enjoy all
the exemptions, privileges and i'm
munities concerning commerce and
navigation which then or thereaft-
err might be enjoyed by Granadan
citizens, their vessels and merchan-
disc
No treaty stipulations for the eX
tention OF the convention to the
Panama Canal were ever effected.
and, therefore, that convention only
applied to the Nicaraguan route and
Central America.
The convention remained in force
from 1850 to 1901, when it was SUI
perseded by the Hay -Pauncefote
treaty. In all of that time nothing
of consequence was done by Great
Britain to promte the construction
Of the canal
Hence the claim that the Clayton
Bulwer convention had become OBJ
solete has considerable merit.
No one familiar with the trend of
public opinion in the United States
but knows that the American people
had concluded to build the canal
independently of another nation
when the Hay Pauncefote treaty
was made, and had not that treaty
been entered into, there is no doubt
the moribund convention of 1850
would have been abrogated by our
Government.
The Hay Pauncefote treaty did
not affect the treaty made between
the United States and Colombia re-
specting the lsthmus of Panama.
Hence the United States. without
interruption. has been under treaty
obligations since 1916 to protect the
Do 10 10 int ain the
neutrality of transit Neither the
convention nor the treaty relieved
the United States of this burden,
and the preferential treatment ac-
corded to the commerce of the Unit
ed States across the Isthmus of
Panama in compensation for that
burden was not impaired by either
of the conventions above.
The right held by the United
States under the Clayton Bulwer
convention was equivalent to an
easement over the isthmus. and this
easement ripened into a fee simple
title when the treaty with Panama
was made in 1908.
Whence comes, then, England's
right to claim equal treatment with
the United States al the isthmus?
She did not get II under the Clay
tom Bulwer convention, nor by the
Hay Pauncefote treaty. The con-
vention and the treaty left the
status at the isthmus unchanged.
the United States still holding spe-
cial commercial PRIVILEGES.
That the United States is now
the owner of the territory, instead
Of being the holder OF an easement.
can not change the status. Hence
the United States now has rights,
commercial and otherwise. at the
isthmus superior TO those of Eng
land. as they have been since lS46.
Ii is claimed by Great Britain
that the consideration for super
seding the Clayton Bulwer conVen-
ton was to secure equality of treat
ment for her ships with those OF
the United states at the canal
There is no such consideration
expressed in the treaty nor in the
correspondents between the two
Governments leading to its making
A fair construction would permit
OF the suggestion that Englands
prime motive was to obtain the use
Of a shorter route TO the Pacific,
without cost TO her, and through
the canal. the neutrality Of which
was to be maintained by the Unit
ed States singly and alone.
The English convention means
that the United states renowned
an benefits under the Clayton Bull
wer convention and yet retained its
burdens and obligations, not only
with respect to England, but other
nations.
Further that ,heso hurdan. r,,st