Our Panama Canal Obligations.

New York Times 100 years ago today, October 20, 1912:
Treaties Now in Force with Foreign Nations Demand Equal Treatment with Our Own Shipping.
By N. I. Stone.
    There is one phase of the international question raised by our canal toll legislation which has been almost entirely overlooked in the controversy in Congress, and is still agitating the press and Nation. With the exception of the speech of Senator Burton, which contained an able and scholarly review of the history of our treaty relations with foreign nations affecting our navigation policy, practically all the discussion has centred about the interpretation of the Hay-Pauncefote and, to a minor extent, of the Clayton-Bulwer treaties.
    These treaties have received almost exclusive consideration in the controversy. Strange to say, neither side has taken notice of the solemn obligations we are under to the rest of the world by virtue of our general treaties of commerce and navigation. And yet there can be no doubt that as long as these treaties remain in force, we have no alternative but to treat foreign vessels in American waters as we do our own. When, in March, 1899, Congress adopted a resolution for the construction of the canal, we found ourselves powerless to proceed without the consent of Great Britain, under the provision of Article I. of the Clayton-Bulwer treaty of 1850, which read:
    The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America.

The Issues Involved.
    In order to be able to construct, operate, and defend the canal, and the territory that goes with it, we had either to obtain Great Britain's consent to the abrogation of the Clayton-Bulwer treaty, or to proceed in open violation of it, as was advocated at the time by some people in and out of Congress. The Government chose the more honorable course, and Secretary Hay succeeded in negotiating the treaty, which bears his name jointly with that of the then English Ambassador to the United States. By the terms of the new treaty England waived her rights of control in the matter, and gave us a free hand in Central America in return for this provision, among others:
    "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."
    The controversy that has been going on in Congress and the press has centred about the interpretation of the words "all nations." Advocates of equal tolls to American and foreign vessels claim that "all nations" includes the United States, while those in favor of freedom from tolls for American vessels insist that the United States, being the owner of the canal, it could not be included in the expression "all nations."
    Mr. Hannis-Taylor, ex-Minister to Spain, regarded as an authority on international law, takes the ground that the territory comprising the Panama Canal, having passed into the sovereign possesion of the United States since the conclusion of the Hay-Pauncefote treaty, the latter automatically become null and void, since it was meant to apply to a canal built by us through foreign territory.
    Mr. Taylor's view is accepted by many of the advocates of discrimination against foreign ships, while those who are in doubt on this point suggest that the Hay-Pauncefote treaty be formally abrogated. Assuming that Mr. Taylor is right in his contention, or that the treaty can be formally abrogated by us without the consent of England, it is clear that in the absence of any special treaty protecting the rights of foreign nations in the canal, their only recourse would be to the general treaties of commerce and navigation by which the treatment of their vessels in America waters is guarded on the basis of reciprocal treatment of American shipping in foreign waters. These treaties are so clear and emphatic in their provisions on this point that, as a matter of historical record, their meaning has never been disputed.

Treaties of Navigation.
    The treaty of commerce and navigation of 1815 marked a revolutionary departure from the principles hitherto governing maritime relations among nations. The radical innovation contained in article II read as follows:
    "No higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those payable in the same ports by vessels of the United States; nor in the ports of any of his Britannic Majesty's territories in Europe on the vessels of the United Mates than shall be payable in the same ports on British vessels."
    The language is clear and unmistakable; the two nations are to treat each other's vessels not as they do those of the most favored nation, but as their own. If Mr. Taylor is right, and the Hay-Pauncefote treaty is no longer in force, then the Panama Canal and the harbors marking its terminals are "ports of the United States," and British vessels cannot be subjected to higher charges and duties than our own vessels, any more than they are discriminated against in the ports of New York or Boston.
    If those who threaten the repeal of the Hay-Pauncefote treaty, in the event of the Hague tribunal interpreting it in favor of Great Britain, succeed in carrying out their intention, then again the only treaty applicable in the case would be that of 1815, with the absolute ironclad provision just cited.
    How did we ever come to consent to such a radical provision? Is it possible that our statesmen failed to see that Great Britain, being the greatest maritime nation ou earth, would benefit by it to a much greater extent than we would! How is it that this provision has been overlooked in the discussions of the question? And, finally, why not repeal a treaty that contains so troublesome a proposition? These are some of the questions likely to be asked and deserving an answer.
    The provision of Article II was not smuggled in by the wily Britons while the provincial Yankees were not looking. On the contrary, it was carefully drawn and urged by the representatives of the United States, John Quincy Adams, Henry Clay, and Albert Gallatin, men towering high in the brilliant galaxy of American statesmen. Furthermore, the incorporation of this provision marked the triumph of American diplomacy after a third of a century of ceaseless effort.
    As early as 1776, when the Continental Congress, struggling for recognition for the revolting colonies, drew up a draft of a treaty to be submitted to France, it embodied therein this tentative provision:
    "Article I. The subjects of the most Christian King shall pay no other duties or imposts in the ports, havens, roads, countries, islands, cities, or towns of said United States, or any of them, than the natives thereof, or any commercial companies established by them or any of them, shall pay, but shall enjoy all other the rights, liberties, privileges, immunities and exemptions in trade, navigation and commerce, in passing from one part thereof to another, and in going to and from the same, from and to any part of the world, which the said natives or companies enjoy."
    Reciprocally it was provided that the same treatment was to be extended to French commerce in the United States.

Early Shipping Interests.
    The provision was radical to an extreme. It proposed to wipe out all discrimination between citizens and foreigners. It involved not only a revolutionary change in the customary policy pursued among nations of that time, but it has failed to obtain complete realization to the present day. No wonder that it was not accepted by France, and instead a provision was substituted in Article III of what became of the Treaty of 1778, (the first treaty we ever adopted as a Nation,) that:
    "The subjects of the Most Christian King shall pay in the ports, havens, roads, countries, islands, cities or towns of the United States, or any of them, no other or greater duties or imposts, of what nature soever they may be, or by what name soever called, than those which the nations most favored are or shall be obliged to pay."
    In other words, France was willing to treat American commerce as favorably as that of any foreign nation, but not on a footing of equality with its own.
    How did the provincial pioneers struggling in the back woods thousands of miles away from civilization come to take a stand so much in advance of their European contemporaries on the other side of the Atlantic? The answer is simple. It is to be found neither in the greater sagacity nor radicalism of the leaders of the American Colonies; the proposed policy was dictated by the urgent economic needs of the hour. At the time the fathers of this country were struggling for independence and shipping and shipbuilding constituted one of the most important activities in the Colonies.
    Favored by an unlimited supply of shipbuilding material in the virgin forests, stimulated by a long coast line, and dependent on the oversea trade for most of the necessities of the home as well as for the disposition of the surplus of their own labor, the Colonists went into shipping and shipbuilding on a large scale. As early as 1730 the rapid development of the merchant marine in the Colonies caused sufficient alarm among the commercial interests of England to lead to the imposition of heavy tonnage dues and other taxes upon Colonial shipping.
    In spite of British jealousy and unfavorable legislation, the economic advantages favored continued growth of American shipping, so that on the eve of the War of Independence one-third of the fleet sailing under the British flag was of American construction. The act of 1765, prohibiting the importation of goods into and exportation from the Colonies, except in British bottoms, was a desperate attempt to stem the rising tide of American shipping and shipbuilding, and, followed by the "Stamp Act" the same year, brought on the crisis which resulted in the War of Independence.

Europe Accepts Policy.
    The War of 1812 with England, like the War of Independence, was a culmination of the shipping rivalry between the two countries, in which the young Republic stood for untrammeled commerce, free from legal restrictions and discriminatory taxation, while the mother country stood for the old order of legal monopolies, favoritism through special grants and artificial restraints through taxation, and other legal restrictions. The new order won, and we emerged from the war with fresh laurels, and the "Convention of Commerce and Navigation" of 1815.
    The example of the most powerful maritime nation of Europe could not go long without imitation among its less fortunate, though no less eager, rivals. No country wishing to trade with the United States could afford to endure the heavy discriminating taxes and duties upon foreign shipping in the United States, while England enjoyed the same freedom in this regard as if it owned this country. In 1816, Sweden and Norway followed with a treaty containing a provision similar to that in the treaty with Great Britain of 1815. Algiers followed the same year. By 1824, Netherlands. Prussia, the Hanseatic cities of Hamburg, Bremen, and Lubeck, the Grand Duchy of Oldenburg, Sardinia, and Russia joined the procession. The same year Congress passed an act authorizing the President to extend the exemption from discriminative duties on tonnage to any country reciprocating in kind. To-day, most of our treaties contain a reciprocal provision for the treatment of our vessels in foreign countries on the same basis as their own, and the principle has been extended to cover the relations of those nations among themselves.
    It is now proposed to sweep aside with one stroke the one principle that has come to be considered as the cornerstone in the commercial relations among modern nations, and of which we, as a Nation. had the right to be proud of being the author.
    But not only is it a reversal of a time-honored policy; it is a plain violation of both the spirit and the letter of most of our existing treaties of commerce and navigation, and therefore ought not to be put in effect without first abrogating those treaties upon due notice. This is the more necessary, since we have always insisted ourselves on a strict compliance with the spirit of these treaties by other nations.
    To sum up:
    1. The Hay-Pauncefote treaty, in the light of our general treaties of commerce and navigation, clearly meant to provide for the imposition of tolls on foreign vessels passing through the Panama Canal no higher than those imposed upon our own.
    2. If the treaty is no longer operative, as a result of the territory having passed under our sovereignty, then our general treaties of commerce are applicable, and in that case no claim can be advanced, nor has ever been advanced, that foreign ships may be discriminated against for the benefit of our own.
    3. The formal repeal of the Hay-Pauncefote treaty, even if it were possible under its terms, would likewise place the navigation through the canal under the operation of our general treaties of commerce and navigation.
    4. The only escape from a clear obligation on our part to treat foreign vessels on a par with our own lies through the repeal of all of our most-favored-nation treaties which secure to us reciprocal benefits in foreign waters.
    5. The imposition of discriminative dues on foreign shipping, whether done in violation of existing treaties or upon their repeal, will expose our own commerce to retaliatory discrimination in foreign countries and will work irretrievable harm to the prestige and honor of the United States among the nations of the world.