honor to keep the canal open to them as declared in this treaty with Great Britain. I told him that I thought he had no idea of the intensity of the feeling in the Senate and the nation against the intervention of other nations in our affairs such as this, especially upon any footing of contract right, and that if you should conclude that this clause as amended by him does give them such a contract right, you could hardly be expected after the Senate's former action to accept it without modification.

I said to him that I supposed his mind was still open to conviction, and he said, Oh, yes, of course, Mr. Hay's project was only tentative. He asked Lord Pauncefote to sound me and I have made these suggestions in the hope of coming to an agreement, and he will expect you to offer your counter suggestions. (I don't really see why they insist on lugging in the other nations. The reason given by him that Great Britain objects to being bound to stringent rules of neutral conduct not equally binding upon other powers seems to me without substance. It is we that are bound by stringent rules unless we accord to Great Britain clear contract rights to have these rules observed by us as owners of the canal; and the other nations can only use it under the same rules. Great Britain has something to give us in exchange for this agreement with her the relinquishment of her rights under the C. B. treaty-but the other nations part with no such consideration.) I also told Lord Lansdowne in respect to this clause 1 of article 3 that in one respect it was worse than the provision (art. 3) of the H. P. treaty which the Senate struck out. That only invited the other nations to come in, and left it optional with them to stay out, as they did under the C. B. treaty, but this actually compels them to come in at the start. They can not use the canal, as I read it, unless they agree. The question is whether if they agree as he proposes they would become parties to the agreement in the sense in which they would have done under article 3 of the H. P. treaty which the Senate vetoed. I've not had time to study this question carefully, but my present strong impression is that they would. Lord Lansdowne claims to desire only that the other nations parting with nothing should not be on a better footing with respect to the canal than Great Britain, who parts with so much, and that she shall not be bound by these "stringent" rules of neutrality while the others are not so bound. I think they are practically all treated alike by the instrument as you have drawn it. I venture, however, to suggest, in view of his amendment of clause 1, article 3, that it might possibly meet the views both of the Senate and the British Cabinet if you should propose further to amend by striking out the words "agree" and "so agreeing," which I dislike so much, considering the previous action of the Senate, and make it read: "The canal shall be free and open to the vessels of commerce and war of all nations observing these rules," etc.

These are only my hasty suggestions after having Lord Lansdowne's paper in my hands for only one busy day. I told him what I thought because he wanted to know, and I give them to you for what they are worth. Perhaps you will not agree with them at all. If not no harm will come, but if you and the Senators whom you may consult, concur in this objection to his amendment of clause 1, article 3, Lord Lansdowne will be prepared to have you dissent.

I think it must be conceded that Lord Lansdowne has very gracefully yielded on the main point that was covered by the Davis amendment in subdivision 7, page 5 of his paper, where he seems to construe the new draft substantially, I think, as we do. He recognizes our "desire to reserve the power of taking measures to protect the canal at any time when we are engaged in war"; that "contingencies may arise when it might be of supreme importance to the United States that they should be free to adopt measures for the defense of the canal at a moment when they were themselves engaged in hostilities," and "the necessity" and of course "the right of the United States to interfere temporarily with the free use of the canal by the shipping of another power." Whether, however, such other power would thereupon and ipso facto become liberated from the necessity of observing the rules laid down in the new treaty I am not yet prepared to say. It ought not even in war to be at liberty to violate clause 1 of article 3.

Upon the whole the prospect of a satisfactory settlement of this troublesome matter seems to me better than it has ever been before, and I am sure that you will appreciate the friendly tone of Lord Lansdowne's advances. I have not yet seen Lord Pauncefote but have an appointment with him for Tuesday, after which I may write to you again.

*

AUGUST 20, 1901.

DEAR COL. HAY: * Yesterday I had a most satisfactory interview with Lord Pauncefote about the canal business with the result that I am still more encouraged to hope for and expect a final draft at your hands that will suit both Senate and British Cabinet. I went over with him fully the two points which I had discussed with

Lord Lansdowne and in my answer to you. He recognizes the full force of what I had to say as to the inexpediency of inserting the words which shall agree" and "so agreeing" in clause 1 of article 3 after the striking out by the Senate of article 3 in the H. P. treaty. He should emphatically favor omitting them, and thought his Government would assent to the omission; and he seemed to agree that making it read "all nations observing these rules," etc., would reach their object which is that Great Britain and all other nations should be served alike and be on an equal footing as to obligation to observe the neutrality of the canal.

I also gathered from what he said that the new article 3 might be modified somewhat to meet my objection that it not only reaffirmed the general principle of article 8 of the C. B. treaty but made it a great deal stronger than it stands in that treaty, although naturally this point did not impress him as much as the other. But the more thought I give it the more substantial it seems. As article 8 stands in the C. B. treaty it undoubtedly contemplates further treaty stipulations, not "these" treaty stipulations, in case any other interoceanic route either by land or by water should "prove to be practicable," and it proceeds to state what the general principle to be applied is to be, viz, no other charges or conditions of traffic therein "than are just and equitable," and that said "canals or railways, being open to the subjects of Great Britain and the United States on equal terms, shall also be open on like terms to the subjects and citizens of other States which I believe to be the real general principle (of neutralization if you choose to call it so) intended to be asserted by this eighth article of the C. B. treaty.

But under cover of reasserting this "general principle," this new article 34 instead of postponing the making of new treaty stipulations as to other routes until some other route by land or by water proves to be practicable, immediately and for all time fastens these six crystallized rules of article 3 upon all interoceanic communication across the Isthmus as well as providing that no change of sovereignty or other change of circumstances shall affect such general principle or the obligations of the "high contracting parties under the present treaty," and I shall be surprised if objection is not encountered in the Senate to this result of making the old eighth article of the C. B. treaty so much more comprehensive, definite, and binding than it was before. The idea "change of sovereignty," of course, relates to the report of an intention on the part of the United States to acquire a strip of territory on each side of the canal, and other change of circumstances" is aimed at the argument in some future epoch against the continuance of this treaty that has often been directed against the continued binding force of the C. B. treaty that "change of circumstances" since 1850 has put an end to it.

Lord Lansdowne's object in insisting upon article 3A, is to be able to meet the objectors in Parliament by saying that although they have given up the C. B. treaty they have saved the "general principle" and have made it immediately effective and binding upon the United States as to all future routes and have dispensed with future "treaty stipulations" by making it much stronger than it was before. I think his all-sufficient answer is that by giving up the C. B. treaty which stood in the way of building any canal he has secured the building of the canal for the benefit of Great Britain at the expense of the United States, relieved Great Britain of all responsibility about it now and forever, and imposed upon the United States stringent rules of neutrality as to Great Britain and all mankind.

Assuming that some such article must be retained, how would this do: In view of the permanent character of this treaty, whereby the general principle established by article 8 of the C. B. treaty is reaffirmed, the United States hereby declares (and agrees) that it will impose no other charges or conditions of traffic upon any other canal that may be built across the Isthmus (or between the Atlantic and Pacific Oceans) than such as are just and equitable, and that such canals shall be open to the subjects and citizens of the United States and of all other nations on equal terms.

Lord Pauncefote's expectation is that you will in due time answer Lord Landsowne's paper, and that he and Lord L. will give full consideration to the matter in time to enable him to bring back an agreed instrument when he returns in October.

SEPTEMBER 3, 1901.

DEAR COL. HAY: The more I reflect upon it the more confident I feel that striking out "which shall agree" and "so agreeing" in clause 1 of article 3 and a very slight modification of article 3A to bring it back to the real meaning of article 8 of the C. B. treaty will produce a result that will suit everybody, or at least ought to.

SEPTEMBER 13, 1901. DEAR COL. HAY: I have received yours of the 2d instant with copy of yours of same date to Lord Pauncefote and have written to him proposing to take the matter up on Tuesday and pursue it diligently to a conclusion. I assume that he will be out of town on Sunday. I shall also press it with Lord Lansdowne as soon as he is accessible. When they learn that the views I had previously expressed to them are the same that you and the President had already entertained before you had received a word from me, they must, I think, receive them more favorably still. I am sure that they are as anxious as we are to get the matter satisfactorily adjusted and out of the way.

SEPTEMBER 21, 1901.

DEAR COL. HAY: * * * I regret to say that Lord Lansdowne who left on the 17th for Ireland has not as yet been accessible for a conference, and I fear will not be until October. He was to have come on the 19th to attend the service at the Abbey, but unfortunately he had another sharp attack of sciatica, which prevented. Both Lord Pauncefote and I had hoped that he would come and remain here a few days to enable us to advance if not dispose of this important matter. But I have had a full discussion of the matter with Lord Pauncefote which has, I think, materially advanced it, and which resulted in my confidential cypher cable of yesterday, of which I inclose a copy. It is needless to say that I found Lord Pauncefote very reassonable. I pressed upon him your great desire, if possible, to restore clause 1 of Article III to the form you originally proposed, eliminating Lord Lansdowne's amendment altogether, except the clause as to just and equitable charges and conditions. But he thought the idea of amending it had gone too far to dispense with it altogether. He had sent to Lord Lansdowne your letter to him of September 2, and both he and I thought that the best that could be done was what you there propose, viz, to strike out after "nations" the words "which shall agree to observe," and substituting therefor "observing", and in the next line to strike out the words "any nation so agreeing" and to substitute therefor "any such nation.”

As to article 3A proposed by Lord Lansdowne, Lord Pauncefote realizes, I think, the full force of our objections to it, as I stated them to him before and repeated to you in my former letter. I told him emphatically that, meaning to get rid of the Clayton-Bulwer treaty altogether, we did not want to have article 8 of that treaty fastened upon us forever in a more intensified form, and as to any and all future interoceanic communication with these crystallized rules, dispensing with any future negotiation about the matter when it should arise at some distant day. Told him how you and President McKinley had raised the same objections on first reading Lord Lansdowne's paper and without a word from me yet received. Rather to my surprise, he yielded very readily on the point of the future canal or other interoceanic communication, which, to my mind, was the worst part of it. He said that the only two possible routes for a canal were, he was satisfied, the Panama route and the Nicaragua route, and that the Panama route was so hedged about by many treaties with several powers, and that without their consent nothing in the direction of our wishes could be done, and that it was sufficient in this treaty to provide for the Nicaragua route.

This I thought a decided advance. He no longer insisted upon the words "or other change of circumstances" not affecting the treaty, against my insistence that there might be changes of circumstances which would affect or even nullify a treaty, that there was such a principle of international law, which we can not let go; that what such change of circumstances might be is not determined, nor was it easy to foresee what changes of circumstances might come upon the United States in the next hundred years. But he said they could not give up article 3A altogether; that it was quite obvious that we might in the future acquire all the territory on both sides of the canal; that we might then claim that a treaty providing for the neutrality of a canal running through a neutral country could no longer apply to a canal that ran through American territory only; and he again insisted that as Lord Lansdowne had insisted that they must have something to satisfy Parliament and the British public that, in giving up the Clayton-Bulwer treaty, they had retained and reasserted the "general principle" principle of it; that the canal should be technically neutral, and should be free to all nations on terms of equality, and especially that in the contingency supposed, of the territory on both sides the canal becoming ours, the canal, its neutrality, its being free and open to all nations on equal terms, should not be thereby affected; that without securing this, they could not justify the treaty either to Parliament or the public; that the preamble which had already passed the Senate

was not enough, although he recognized the full importance of the circumstance of its having so passed.

I then called his attention to your article 4 in your letter which did seem to me to cover and secure all that he has claimed and insisted on. He said no, that it only preserved the principle of neutralization, which it might be insisted on did not include freedom of passage for all nations and equality of terms and that without an explicit provision, which should leave that free from doubts, he could not expect to sustain it before the Parliament and people. I insisted that those ideas were already included in your fourth, i. e., within the words, "the general principle of neutralization,' especially in the light of that phrase as used in the preamble where it is "neutralization established in article 8 of the C. B. treaty"; that if not included within that, it certainly was in the phrase "obligations of the high contracting parties under this treaty," for what could be clearer than our obligation by article 3 to keep it open and on terms of equality as provided there, and what you meant was that no change of territorial Sovereignty should affect any of the obligations of the present treaty, including that. He still insisted that it should not be left to the construction of general clauses, but should be explicitly stated. Believing as I do that you had no thought of escaping from the obligations of article 3, clause 1, in any such contingency as change of territorial sovereignty, and that you had intended it to be included in your language in 4 I wrote down the words "or the freedom of passage of the canal to the vessels of commerce and of war of all nations on terms of entire equality and without discrimination as provided by article 3" and asked him if those words were added to your 4 it would satisfy him as a substitute for Lord Lansdowne's 3A. He said it would, and with those words added the treaty could, he thought, be sustained before Parliament and the British public; that he should approve it and he thought Lord Lansdowne could and would, although it would have to be submitted to the Cabinet or to a majority of its members.

This seemed to bring the matter to a very satisfactory point so far as we could go, and I agreed to cable our result to you in the hope of getting your approval before he submits it to Lord Lansdowne. I did not give him the words I wrote on paper, but said I would cable them to you.

(MEM.-I observe that in the brevity of my cable I omitted the words "and without discrimination," but I don't see that the omission affects the meaning at all, as it is all included in the words "on terms of entire equality, as provided by article 3." But if on reading this you think it does make a difference, please cable me.) It still looks to me most propitious for a satisfactory conclusion being reached.

SEPTEMBER 25, 1901.

DEAR COL. HAY: I received your cipher dispatch of the 21st on Sunday, the 22d, instructing that if the British Government strongly insisted on the proposed addition to article 4, I might accept it, and that you thought we were to be congratulated on this happy conclusion of the matter. It can hardly be regarded as concluded yet, for it is one thing to satisfy Lord Pauncefote and quite another to satisfy Lord Lansdowne and the cabinet, and especially the Lord Chancellor. On Monday, the 23d, I had an interview with Lord Pauncefote and tried, as I had before, to persuade him that it was neither wise nor necessary to mar your "article 4" by the addition proposed in my cable to you. But he thought, as he did before, and more strongly than he did before, that with the addition Parliament and the British press and public could be made to accept the treaty, but that without it they could not, and so with the members of the government. He thought it very necessary that they should be able to say very emphatically that although they had abrogated the ClaytonBulwer treaty they had preserved the principle of it. I rather think he was a good deal governed by the old English maxim of never giving anything for nothing, and he wanted to have some equivalent or apparent equivalent for giving up the "other interoceanic communication." So I gave him the words that I cabled to you, and he seemed to think that the words "and without discrimination" did not alter the meaning and we left them out.

I judged from your cable that you agreed with me that the words proposed to be added did not really alter the meaning of your 4, but only added a specification of what was there included in general terms. He was not willing to have it rest upon the construction of general words and wished to be able to point to the specific language as removing all doubt. The same ground was again gone over as in our former interview. He undertook to report our conversation to Lord Lansdowne immediately and hopes for a speedy answer and a favorable one. Meantime, hearing that Senator Lodge was coming here on Friday, and thinking it might be well to enlist him at this stage, I cabled to you, asking if I should show him the papers up to date. I recalled

that when he was here in June he appeared not to have seen the language of your original project but had only a general idea of its substance. I have Dr. Hill's answer, "Treaty may be communicated to Lodge confidentially." I think it will be a wise

thing to do so.

I am very much delighted with your statement that the President cordially approves draft of canal treaty and my instructions. I knew that he would, and have every confidence in his wisdom and discretion. The general disposition here toward us just now is better than ever, and I have every hope that a favorable result will be reached here. There may be some delay. Lord Lansdowne is not very well and will stay in Ireland till October 1 and the members of the cabinet are scattered to the four winds, not to return, I suppose, till about the same time.

By the way, I'm afraid that in my last I misinterpreted Lord Pauncefote's idea about the Panama routes being hedged in by treaties so that it was not necessary to provide about that in this treaty. I asked him to state it again, and it was not as I wrote, that the Panama route was so hedged about by treaties "that nothing in the direction of our wishes could be done without the consent of the powers who were parties," etc., but that the various treaties did so effectually secure the neutrality of that route, that they had stamped the principle of neutrality so irrevocably upon it that it was not necessary to secure it by this treaty; that even if we should acquire the Panama route, that we should take it cum onere, and he said that in fact our whole program about any canal was to have it neutral. He evidently will impress himself very strongly upon Lord Landsdowne to the effect that no provision about any other canal is necessary in this treaty.

SEPTEMBER 27, 1901.

DEAR COL. HAY: Lord Pauncefote called upon me yesterday to say that upon an examination of the existing treaties bearing upon a canal by the Panama route, he found he was mistaken in what he said to me the other day, and that there were no provisions satisfactorily securing the neutralization of the canal. He also called my attention to an elaborate article in yesterday's Times, which I inclose, the last paragraph of which seemed somewhat to imperil his "general principle of neutralization." He also alluded to the rumors now very rife here that we might after all decide to acquire and complete a canal by the Panama route, and abandon the Nicaragua route altogether, in which case it had been suggested to him by some of the "experts" at the foreign office that it might be claimed that our treaty as it now stands is for a canal by the Nicaragua route only, and does not apply at all to the Panama route, which, of course, as he said would place the British Government in the most ridicu lous position of having signed a treaty abrogating the Clayton-Bulwer treaty, and yet having no reference to the canal that we were actually proceeding to build. He could not conceal his disturbance of mind at this suggestion.

I told him I was sure you had no such idea as that, or of putting them in such a predicament; that of course this had always been called the Nicaragua Canal treaty; that the original H.-P. treaty was for a Nicaragua Canal because it left the C.-P. treaty with its preamble and its eighth article in force, but that by the plain reading of this treaty abrogating the C.-B. treaty, and retaining no reference to any particular route, it would apply to the first canal that we should build by whichever route, and that there was so little possibility of any second canal being built that it was not worth while to think about it or to provide for it; and this, I think, was his own view. saw him again to-day and he was just going to see Lord Lansdowne, who has unexpectedly come to London. He had prepared a memorandum to submit to Lord L., showing the propriety of their accepting your 4 for his 3A. If they adhere to the point suggested as raised at the foreign office he may want to insert a few words in the preamble or elsewhere to remove all doubt that it is to apply to the canal we actually first build by whichever route. On conference with him I sent you to-day the confi dential cipher cable of which I inclose a copy. Lord Pauncefote is quite hopeful if satisfying Lord Lansdowne to adopt 4 as amended.

OCTOBER 2, 1901.

DEAR COL. HAY: I was very glad of the opportunity to place the present position of the canal treaty before Senator Lodge, with whom I went through the whole matter very carefully on Monday, and he approved of it as last amended absolutely, and authorized me to say so in my cable of to-day. You can rely upon his strenuous sup port in the Senate. The insertion in the preamble after the words "Atlantic and Pacific Oceans" of the words "by whatever route may be considered expedient,"