with any foreign vessels. American shipping has a legal monopoly of our coastwise trade; no foreign ship could be engaged in it, so that no injury to any foreign vessel or its owner could be done if our Government paid American shipowners twice or ten times the amount of the tolls charged for passing through the canal while exclusively engaged in coastwise trade. So far as foreign ships using the canal are affected by this bounty, it is just as if the United States exempted from tolls ships, whether American or foreign, used exclusively as pleasure yachts or for scientific or charitable purposes. Such an exemption as the one last suggested might or might not be wise or reasonable, but it could not, directly or indirectly, take a dollar out of the pocket of any foreign shipowner using the canal for commercial

purposes.

Secondly, it must be remembered that by the third article of the treaty "charges of traffic shall be just and equitable" for the vessels of all nations. Therefore, no matter what the consequences to the Treasury of the United States may be, foreign vessels using the canal must not be charged more than fair and reasonable tolls for so doing. If the aggregate of the fair and reasonable, or, in the words of the treaty, the "just and equitable," tolls charged is to furnish enough money to pay more than the cost of the maintenance and supervision the Treasury of the United States will make a profit; if the revenue derived from these fair and reasonable tolls is less than the cost of maintenance and supervision, the United States will bear the loss. The effect of granting an exemption from tolls to the particular class of American vessels above mentioned will be to reduce the probability that the United States will make a profit, and to increase the probability that the United States will have to bear a loss; but it can have no effect whatever in increasing the "charges of traffic" against foreign vessels of any kind. The treaty forbids these "charges of traffic" to be more than "just and equitable," and, as the treaty recognizes "the exclusive right" of the United States to fix these charges, a reasonable regard for its own interest will undoubtedly prevent the United States Government from making them less than "just and equitable."

It follows from what has just been said that the construction put upon the treaty by the advocates of repeal places the United States in a less favorable position than any other power using the canal for its merchant ships, and that it does this, although the exercise of the power asserted in the so-called "exemption" can do no possible harm to any class of foreign shipping, since it can neither expose such shipping to discrimination in competition with American shipping nor increase the tolls which foreign shipping would otherwise have to pay.

We can test the comparative reasonableness of the two constructions by considering the question of tolls for the passage of ships of war or other public vessels. The United States does for such ships belonging to itself precisely what it proposes to do by the so-called "exemption" for a certain class of merchant ships. Whether it requires payment of tolls on such vessels or not is a matter of utter indifference as to the substance of the transactions or as affecting the interests of foreign powers; for, since the payment is to be made to the United States itself, if it be made at all, exacting it amounts merely to taking money out of one pocket

and putting it in another. Therefore, with respect to its public vessels, the United States, by virtue, not of the treaty, but of its ownership of the canal, occupies a totally different relation toward the payment of tolls from that occupied by any foreign power.

But it is of greater importance to note that the whole of this provision and also the rules to be observed by powers using the canal are adopted by the United States, in the words of the treaty, "as the basis of the neutralization of such ship canal," so that they are clearly applicable to times of war as well as to times of peace, and, in fact, provision for the use of the canal by the ships of war of belligerent nations is made in the rules which are to be observed by all nations using it at all. Now, if the right of the United States to use the canal depends on its observance of these rules, then, if the United States shall be itself at war with any foreign power, it is bound by the treaty to permit the use of the canal by warships of that power as though it were in friendly relations therewith and to forego the use of the canal by its own ships of war, troops, or transports to any greater extent or under any other circumstances than would be permitted to a belligerent nation in a war to which the United States was not a party; that is to say, the result of this construction would be that, if we were at war with Japan, our garrison at the Isthmus would be mere idle spectators of the peaceful passage of the Japanese fleet through the canal to attack New Orleans or New York; if we were at war with Germany, the American troops on the Isthmus would look on tranquilly while German vessels traversed it to take San Francisco, and the net result of our enormous expenditure for the construction of the canal would be to make our coast much more vulnerable than it was before. I think the mere statement of this proposition amounts to its refutation.

It is a well-established principle in the construction of treaties that the purpose and intention of the treaty, the ends it seeks to have attained, will be considered, even if it shall be necessary to interpret its language in a broader sense than the literal meaning of the words would justify. Thus, for example, in Geofroy v. Riggs (133 U. S., 258), it was held that, for the purpose of the treaty under consideration in that case, the District of Columbia was to be considered one of "the States of the Union.” In Ross's case (140 U. S., 475), it was held that the words "citizens of the United States" included, for the purpose of the treaty then before the court, a British subject engaged as a seaman on an American merchant vessel. Many other authorities may be cited to the like effect, but this seems needless since the rule of construction above stated is well established; consequently, even if the language of the treaty, used in its ordinary acceptance, would require us to include the United States among the nations authorized to use the Canal only by virtue of their observance of the rules contained in the treaty, this construction would so plainly defeat the purpose of the treaty and would be so absurd and unreasonable in itself, in view of the relations of the parties to the subject matter, that any tribunal called to construe the treaty would seek anxiously for some other sense in which the words could be reasonably used. As a matter of fact, however, the rational and ordinary sense of the words, construed according to the well-established canons of statutory interpretation, excludes the United States, the promissor and grantor in this section, from the number of the beneficiaries of

the promise and grant, and it is only by a forced construction, which is opposed, as well to the letter as to the spirit of the compact, that the alleged limitation upon the power of our Government to grant this bounty to American ships can be sustained.

Mr. Chairman and Senators of the committee, I respectfully submit these observations. I merely say in justice to myself that they were prepared very hastily and unquestionably constitute a very inadequate discussion of this very important subject.

The CHAIRMAN. We are very much indebted to you.
Senator THORNTON. I should like to ask one question.

Mr. BONAPARTE. I would be very happy to answer any questions. Senator THORNTON. In discussing the rules of construction governing the interpretation of doubtful contracts, I did not understand you to say that the intention of the contracting parties, as evidenced by their own statements, could be considered in the interpretation of the contract in arriving at what was the spirit and intention of it. I now ask you to please state whether or not the spirit and intention of a doubtful contract could be arrived at by what the parties to the contract thought that it meant when they were making it?

Mr. BONAPARTE. Not as I understand it, unless the words construed with relation to their subject matter, to extrinsic circumstances, are equally susceptible of either construction. The general rule, which, as I understand it, is of universal application, is not what they may have had in their minds, but what they express in their writings. And it is only when the writing, construed with relation to the extrinsic circumstances connected with it, is such as to leave the mind in entire doubt as to what their meaning would be that any resort can be made to expressions of the parties used in the course of negotiations. That I have always understood to be a rule peculiarly applicable to a treaty because, of course, the words used in the negotiations are not the words of the sovereigns who conclude the treaty, not the words of the people of the United States in their Sovereign capacity and of the sovereign of Great Britain and Ireland, but the words of agents of the parties who have none of the attributes of soveriegnty and who may not be intimately authorized to bind the parties by their expressions, the sovereign having reserved to itself the ultimate question of how far it shall be bound. I hope I have answered the question fully.

Senator THORNTON. If I understood you correctly, you said that in a case where the language of the contracting parties left the question in doubt, then it was proper to consider what the parties themselves intended by the language. I understood you to say that was an exception.

Mr. BONAPARTE. Where the language of the parties applied, as I have said, to the subject matter is of such a character as to be equally applicable to two constructions, then I understand that it is permissible to consider simultaneous expressions, cotemporaneous expressions of the intention and purpose by the parties themselves. The case is not unlike a question which has very frequently been raised as to how far debates in one or the other Houses of Congress may be looked into, expressions used in debate may be looked into, in determining the meaning of the statute as finally passed.

Senator THORNTON. I have no further questions to ask the witness.

Senator THOMAS. Just one further question. Do you agree with Col. Roosevelt that this subject is a proper one for arbitration?

Mr. BONAPARTE. I do not. That is to say, I do not myself see how it would be possible to get a disinterested arbitrator. If we could get a disinterested arbitrator, there would be a great deal of force in suggesting that it should be so considered, but it seems to me to be a case where the interests of the United States are opposed - at least technically, and perhaps substantially or incidentally very substantially to the interests of any nation that I can think of that would be likely to serve as arbitrator.

Senator SIMMONS. General, you say the interests of the United States are opposed to the interests of all other nations in this country. Do you not think that Great Britain, in negotiating this treaty, had as its first object to remove discriminations, and if the contract, as you construe it is against the interests of the other countries and in favor of the United States, do you not think it rather remarkable that Great Britain overlooked that in these negotiations, and did not insist at any time upon some provisions that would protect her interests?

Mr. BONAPARTE. I think that the British negotiators showed themselves fully capable of looking after the interests of their country, and they have fully protected the interests of Great Britain in this treaty so far as she could reasonably expect.

Senator SIMMONS. Still a treaty has been made, which as you say puts the interests of the United States so sharply in conflict with the interests of every other country in the world that it would be impossible to get impartial arbitrators?

Mr. BONAPARTE. That was the consequence of the conditions of the subject matter, and in my own opinion, of course, not the result of any deliquency on the part of the British negotiators. As I understand the matter, the consideration which Great Britain had to offer in this matter, which it furnished for the agreements which we assume in this treaty was the abrogation of the Clayton-Bulwer treaty substantially that, and so far as I know, nothing more. It is by no means clear that the United States, if compelled to act on the subject, would have recognized the Clayton-Bulwer treaty as still in force.

Senator SIMMONS. She did recognize it by a persistent effort through a number of years to secure an abrogation of it, did she not? Mr. BONAPARTE. That is undoubtedly true, and if it had come down, however, to the question of whether the Clayton-Bulwer treaty should be allowed to stand in the way of constructing the Panama Canal, there was at least an open question there. It would lead me a little far from the subject to discuss the merits of the contention.

Senator SIMMONS. Well

The CHAIRMAN. Let the witness conclude his answer.

Mr. BONAPARTE. I have not quite finished. I was going to say I did not care to discuss the merits of the contention, but there was certainly room for the contention that the Clayton-Bulwer treaty had lapsed from the entire change of the surrounding circumstances. Senator SIMMONS. What change do you refer to?

Mr. BONAPARTE. Well, all the circumstances were so very widely changed from what they were at the time when the Clayton-Bulwer treaty was concluded

Senator SIMMONS. At the time we concluded the Hay-Pauncefote treaty we had not acquired any rights from Panama?

Mr. BONAPARTE. Oh, no; I was not referring to that. It was in contemplation of that that the treaty

Senator SIMMONS. At that time the conditions were the same as they were at the time that the Clayton-Bulwer treaty was negotiated, were they not?

Mr. BONAPARTE. As I remember it, the Clayton-Bulwer treaty was negotiated as applicable to either Panama or Nicaragua.

Senator SIMMONS. Any route.

Mr. BONAPARTE. Either of those routes would have been equally

covered.

Senator SIMMONS. Is not that the same case with the Hay-Pauncefote treaty?

Mr. BONAPARTE. I think so; yes.

Senator SIMMONS. There was no change in the purpose, so far as the route was concerned, between the time of the two treaties?

Mr. BONAPARTE. Not for purposes of this discussion. I do not want to commit myself to a positive statement on that point, because I think there was at that time some difference in the relative probability of the two routes taken, but both treaties related to either of the canals in question. What I was going to say was that having that consideration to offer, namely, the abrogation of the Clayton-Bulwer treaty, and nothing more, I think that Great Britain made a very good bargain by its agreement in regard to the canal.

The CHAIRMAN. In that connection I suppose you agree with Mr. Choate's observation to Col. Hay, under date of September 25, 1901, where he said:

I rather think

Speaking of the foreign secretary of Great Britain at that timehe 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.

Mr. BONAPARTE. I never heard the passage before, but I do entirely agree with it, and I would go a little further and say that under similar circumstances I would have acted the same way.

Senator SIMMONS. You said a little while ago, General, speaking about the fact that the United States has constructed this canal and has been given the right to construct it by Great Britain through a surrender of its rights under the Clayton-Bulwer treaty, that she therefore acquired some greater right in it than the other nations of the world. I want to ask you this in that connection: Is it not a fact that the Clayton-Bulwer treaty was a contract or an agreement between the two Governments that neither one of them would ever consent to own a canal exclusively through the Isthmus?

Mr. BONAPARTE. That was the substance of it-of course, without the consent of the other.

Senator SIMMONS. That was a sort of an understanding that they might build this canal together, was it not?