Maxey in an article on the "Legal Aspects of the Panama Situation" (Yale Law Journal, December) in which he says : The length of time during which the revo lution has been going on is manifestly a matter of indifference, so long as the neces sary results have been accomplished. And in the present case it would seem that the withdrawal of the government forces from the Isthmus, leaving the revolutionists in complete control, was a virtual recognition of their sovereignty by the Colombian govern ment itself, which, coupled with the fact that there is no apparent likelihood that said decadent government will ever be able to re establish its sovereignty over its revolted subjects, furnishes ample justification for recognition by the United States of the ex istence of a dc facto and also of a de jure government. In addition to the question of our duty as a neutral State there is raised the legal ques tion of our obligations under the Treaty of Dec. 12, 1846, with New Grenada. After pro viding for "most favored nation treatment with reference to the commerce of the re spective countries, reciprocity with regard to tonnage dues and drawbacks, and freedom of transit across the Isthmus to the com merce and citizens of the United States, there is the following provision: "And in order to secure to themselve, the tranquil and constant enjoyment of these advantages and as an especial compensation for the said ad vantages and for the favors they have ac quired by the 4th, 5th ad 6th articles of this treaty. The United States guarantee, posi tively and efficaciously, to New Granda, by the present stipulation, the perfect neutrality of the before-mentioned Isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embar rassed in any future time while this treaty ex ists; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory." The fact that New Granada no longer ex
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ists does not affect our obligations under the treaty, as it is a well established rule of inter national law that a change of name by a State does not affect its treaty rights or obli gations. This treaty is still in force and we have in accordance with its provisions, some times at the request of the Colombian gov ernment and sometimes upon our own initia tive, used force, to maintain the free transit of the Isthmus. And in so doing we have performed a valuable service to Colombia, to the world and to our own citizens. Until the treaty is abrogated, there is no question as to our legal or moral right to protect and enforce freedom of transit on the Isthmus, whether by rail or any other means of trans portation. But the question has been raised as to our obligation to protect the sovereignty of Co lombia against revolution by her own citizens. The terms of the treaty give some color to the view of those who hold that we are under such obligation. The question is one of interpretation. And in interpreting a treaty, as in interpreting a contract between indi viduals, we must look to the intention of the parties; for a treaty is nothing but a con tract to which independent States are par ties. In arriving at die intention of the par ties, we must take into account the circum stances existing at the time the contract was made and with reference to which both the parties contracted. In the present case there can be no doubt as to the purpose of enter ing into the treaty. The intention of the parties was clearly not to protect the Colom bian sovereignty against the people of the Isthmus, but rather to guarantee it against interference upon the part of European pow ers from whom there was at that time reason to apprehend danger. The United States has never entered into a treaty for the purpose of compelling a people to submit to a sover eignty which disregarded their welfare, nor is there any evidence that at the time the treaty was entered into the other party to it intended that we should ever be called upon to protect their sovereignty against anything except outside interference. Hence, though
