Britain made sure of land near to and commanding the entrance of any Nicaraguan Canal, there can be no question but the English statesmen of the day fully appreciated the strength of the New Grenada Treaty of 1846.

The wording of the eighth article of the Clayton-Bulwer Convention, the extension by treaty stipulation of protection, was to secure certain like terms of treatment over other routes. So from 1850 to 1901 we find every form of diplomatic strategy exerted to extend such treaty stipulations and so enjoy equal terms with the United States.

The Treaty of 1846 gave reciprocal rights to the United States and before the provisions of the Clayton-Bulwer Convention could be extended to the Isthmus of Panama very material modifications must have been made in the Treaty of 1846 and this could not be done without the consent of New Grenada.

In fact the Treaty of 1846 with New Grenada stood in the way of the equal treatment guaranteed in the superseded Clayton-Bulwer Treaty, as it extended certain privileges in Panama to the United States by virtue of our giving reciprocal conditions of treatment in Panama itself. It is an accepted principle in international law that favored nation treaties do not preclude the extending of a special privilege to another nation provided a reciprocal privilege is secured in return. Thus the United States negotiated a commercial treaty with the Sandwich Islands in 1876, pro

viding for certain reciprocal trade concessions. The British Government made the following comment thereon:

As the advantages conceded to the United States by the Sandwich Islands are expressly stated to be given in consideration of and as an equivalent for certain reciprocal concessions on the part of the United States, Great Britain cannot, as a matter of right, claim the same advantages for her trade under the strict letter of the Treaty of 1851.

Evidently Senator Root's conclusions are that the Monroe Doctrine was in no sense binding upon Great Britain, and that her seizure of lands, in direct opposition to that doctrine, gave her a "coign of vantage which she herself had for the benefit of her great North American Empire for the control of the Canal across the Isthmus."

England promised nothing in the Clayton-Bulwer Treaty that she was not barred from holding by the Monroe Doctrine, and she gave up nothing, even after promising, and the coign of advantage thus embraced includes a claim over Panama, in the opinion of Senator Root. For when asked whether the Treaty of 1846 did not influence the possible extension of the Clayton-Bulwer Convention to Panama, he took a position which seems contrary to the provisions and precedents of public law and in direct repudiation of the clearly expressed attitude of successive administrations of the United States, Mr. Root says:

The whole Isthmus was impressed by the same obligations which were impressed upon the Nicaragua route, and whatever rights we had under our Treaty of 1846 with New Grenada were thenceforth bound to exercise, with due regard and subordination to the provisions of the Clayton-Bulwer Treaty.

Every precedent and practice of international law seems in conflict with such a stand.

Dr. Oppenheim says:

Such obligation as is inconsistent with obligations from treaties previously concluded by one State with another cannot be the object of a treaty with a third State.

In case the arbitration so vigorously urged by Senator Root should find for Great Britain, should we refuse to accept such finding in order to keep our faith under the Panama Treaty or abrogate the Panama Treaty in order to submit to the finding?

At all events Great Britain's adroit efforts to obtain a contract right by extending the treaty stipulations contemplated in Article VIII of the Clayton-Bulwer Convention can be noted from 1850 on.

Thus in 1857 Mr. Cass in a letter to Lord Napier in response to a request for a joint agreement said:

It would be inconsistent with the established policy of this country to enter into a joint alliance with other powers as proposed in your lordship's note.

Mr. Evarts in 1880 refused to consent to any agreement with any foreign power to participate in the special rights already enjoyed by us in Panama.

Mr. Blaine in 1881 said in a message to Mr. Lowell:

In the judgment of the President this guarantee (of neutrality on the Isthmus) does not require reënforcement or accession or assent from any other power.

In President Arthur's message of December 6, 1881, we find that he said that the prior guarantee of neutrality of the Isthmus of Panama was indispensable and that the interjection of any foreign guarantee might be regarded as a superfluous and unfriendly act. He even went so far as to say that Great Britain might claim a share in such guarantee through some wording of the Clayton-Bulwer Convention and recommended the abrogation of any clause that might possibly be so construed.

Mr. Blaine refused to agree to an arbitration of the boundary between Costa Rica and Panama by a European sovereign saying that any question affecting the territorial limits of Panama was of direct practical concern to the United States. Mr. Bayard accepted the findings later but required that the scope and effect should be defined without impairment of any rights of the third parties, not sharing in the arbitration.

Mr. Gresham in 1893 made clear the position of

the United States that our approval of an arbitrated boundary in no way made the United States a party to the litigation.

Mr. Bayard in 1886 spoke of the "serious concern the United States could but feel were a European power to resort to force against a sister republic of this hemisphere as to the sovereign and uninterrupted use of a part of whose territory we are the guarantees under the solemn faith of a treaty."

We, during all this time, acted quickly to put down disorder or revolution, interfering with the use of the railway across the Isthmus.

Thus Mr. Gresham cabled in 1895:

If for any reason Colombia fails to keep transit open and free, as that Government is bound by Treaty of 1846 to do, United States are authorized by same treaty to afford protection.

While many such cases can be cited they all simply tend to the same end.

We have shown:

1. That under the Treaty of 1846 the United States enjoyed certain special reciprocal rights with New Grenada over the Isthmus of Panama.

2. That there was a full realization of the danger of permitting any European power to enter into the enjoyment of similar privileges by any form of treaty stipulation permitting a participation in our contract rights.