A treaty is void if it contracts to do an un lawful act. It is a fair question, whether Panama's agreement to lease territory and cede property, which Colombia still claims, is not a contract to do an unlawful act. But the point is not pressed, as being precluded by our recognition subject to penalty. The three other rules all depend upon the Constitution of each State. If semi-sover eign, it has not full capacity. Its agents who act in the name of the State must be em powered by its fundamental law; ratifica tion must be done in accordance with the Constitution. But suppose there is no Constitution. No popular vote has been taken; no head of the State chosen; no power of ratification lodged in any one's hands. Does the treatymaking power exist in such shape as to en title other States to credit the action of per sons thus unrepresentative and unauthor ized? It is not often, I fancy, that such speedy treaty making after revolution is attempted as to raise this point, and I do not find it directly settled by the publicists. If a State's independence is recognized by an other, it has sovereignty enough to make treaties with that other. But to bind the new State, its agents of negotiation and ratification must be truly representative, in some way entitled to bind their country. Mere assumption of the right would seem a frail basis to build upon. Probably in the case in question, the United States would always claim and always have the power to enforce the Hay-Varilla agreement, as against other powers. Yet who will guar antee that a future Panama, pressed per haps by future creditors, will not want a larger rental, and deny the validity of this contract on the ground that it was made by those who were unauthorized? In other words, there is enough doubt about the
competence of Panama's agents to cast dis credit upon the agreement. It will be good if we can always make it good, but not other wise. If this is sound logic, it should follow that to pay Panama as much for a doubtful title under a questionable contract as was to have been paid Colombia for a sound title, is very poor business. It is only done to save face. However, this defect in title under treaty can be and should be cured, by future reference to the proper body for ratification after a Constitution in Panama has been adopted. Let us set together briefly the conclu sions drawn from the considerations which have been presented. (1) The hasty recognition of a new State in Panama was not in accordance with the law of nations. (2) To justify it by the Treaty of 1846 requires a new and forced construction of that instrument. (3) To prevent Colombia's coercion of Panama is an act of war. (4) The "man in the street's" verdict, that our smart politics served Colombia right, disregards law, sets a dangerous pre cedent, detracts from the national dignity, and may injure our influence and trade amongst the Latin-American States. (5) Our duty was and is to let Colombia recover Panama if she can; our policy, to use her troubles to get favorable canal action from the rightful sovereign. (6) Our recognition, if persisted in, makes of Panama a treaty-making agent, but for ourselves only. (7) The canal treaty, negotiated and ratified by the Junta, with no constitutional authority or other authorization, is of doubt ful validity and the defect will need to be subsequently cured.
