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national defense. And therefore it did not matter whether it cost $100,000,000 or $200,000,000; we did not want it to cost, of course, any more than was necessary, but whatever it might cost we expected to build it.

If I may be allowed to leave with the committee a copy of that letter from Mr. Hay

The CHAIRMAN. Just insert that.

Mr. FORAKER. I have many other letters here from Mr. Hay, some of them about this matter, but they do not throw any light particularly. That treaty was in due time received and acted on in the Senate. This committee are, of course, familiar with the proceedings of the Senate. It was ratified without any amendment, just as it was submitted to us.

Senator SIMMONS. Senator Foraker, Great Britain yielded practically all the three points involved in the Senate amendmentMr. FORAKER. It involves the three points.

Senator SIMMONS (continuing). To the United States, and by reason of that yielding of Great Britain the second treaty was satisfactory to the Senate, and passed by unanimous vote?

Mr. FORAKER. Yes, sir; Great Britain yielded all that we asked, and accepted the treaty just as we ratified it. Of course her negotiators had accepted it previously, but in that way it came to be ratified. I made some notes

Senator SIMMONS. Will you pardon me, Senator, for another suggestion?

Mr. FORAKER. Yes; I will be glad to have that at any time, for I have not prepared anything at all except some notes I made here hurriedly.

Senator SIMMONS. In regard to the amendments to which you refer to the first Hay-Pauncefote treaty, in the negotiation of that treaty Great Britain had surrendered much of the rights and privileges that were reserved to it in the Clayton-Bulwer treaty, had it not?

Mr. FORAKER. I do not remember that she surrendered any rights of any importance that she was entitled to insist upon at that time. If you will indicate what they were, you may refresh my recollection.

Senator SIMMONS. I refer first to the provision in the ClaytonBulwer treaty prohibiting either nation from acquiring exclusive rights to construct a canal across the Isthmus, and also to the prohibition against the United States fortifying any canal that might be constructed.

Mr. FORAKER. Yes; the United States was enjoined from fortifying

Senator SIMMONS. I refer to the first as the most important-the first provision in the treaty.

Mr. FORAKER. Well, probably she had-you are more familiar with the record than I am; I have not had occasion to look at it. Senator SIMMONS. Let me read you, Senator, the first provision of the Clayton-Bulwer treaty.

Mr. FORAKER. I will turn to it right here; I have it before me.
Senator SIMMONS (reading):

ARTICLE I.

The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship canal; agreeing that neither will ever erect or maintain

any fortifications commanding the same or in the vicinity thereof, or occupy, or fortify, or colonize, or assume, or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America; nor will either make use of any protection which either affords or may afford, or any alliance which either has or may have to or with any state or people, for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying, or colonizing Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America, or of assuming or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection, or influence that either may possess with any state or government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one, any rights or advantages in regard to commerce or navigation through the said canal which shall not be offered on the same terms to the citizens or subjects of the other.

Mr. FORAKER. I see what it is. The record shows what the difference may be between the Clayton-Bulwer treaty and the first Hay-Pauncefote treaty. I have not stopped to look at it.

Senator SIMMONS. The first Hay-Pauncefote treaty did authorize the United States by itself or through a corporation financed by it to construct this canal through the Isthmus?

Mr. FORAKER. Yes.

Senator SIMMONS. And to exercise exclusive control, at least so far as making the rules regulating traffic through the canal, policing it, and exercising the usual functions of sovereignty over the territor, subject, of course, to any reserve sovereignty in the State from which it acquired the territory by lease or by contract, in perpetuity?

Mr. FORAKER. A comparison of the two treaties will show, of course, what changes were made. I have had no occasion to make any comparison.

Senator SIMMONS. I simply meant to ask you if the first HayPauncefote treaty did not contain in it many concessions in favor of the United States from the position which the United States occupied in reference to this enterprise under the Clayton-Bulwer treaty?

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Mr. FORAKER. Some, probably. I do not remember what they are. I could not enumerate them for I have had no occasion to look at them. A comparison of the two treaties will show as to that. I suppose the members of the committee who have been studying it are more familiar with it than I am. I have not had occasion to study it at all.

Senator SIMMONS. I had asked the Senator first if in the second Hay-Pauncefote treaty Great Britain did not yield to all three of the contentions of the Senate ?

Mr. FORAKER. Yes, she did.

Senator SIMMONS. And you answered that that showed a yielding on the part of Great Britain to our contentions on these three points, and then I am merely asking these other questions for the purpose of showing that in the first Hay-Pauncefote treaty Great Britain yielded some valuable things to us that we did not have in the Clayton-Bulwer treaty.

Mr. FORAKER. Well, there was a controversy for a long time as to whether or not the Clayton-Bulwer treaty was any longer in force. I remember that the Senate adopted some resolutions that indicated. that they did not think it was in force early-about 1890. I can not give them now, but they are printed in the record.

Senator SIMMONS. But in negotiating the first Hay-Pauncefote treaty as well as the second did we not recognize in that document that the Clayton-Bulwer treaty was in force?

Mr. FORAKER. Yes. It was thought better to recognize it in force as it was. It never had been denounced. It never had been notified. There never had been any steps taken to get rid of it except to declare only that it was no longer applicable, which was a good ground for abandoning it.

Senator BRANDEGEE. Did not Mr. Davis in his report as chairman of the Foreign Relations Committee concede absolutely that the Clayton-Bulwer treaty was in full force, although there had been dissatisfaction with it for some time?

Mr. FORAKER. Yes; I think he did. I think I was of the same opinion. I think all of the Senators were of that opinion, that technically it was in full force and effect.

Senator BRANDEGEE. We were estopped from denying it, of course. When we admitted that this superseded the Clayton-Bulwer treaty we admitted the existence of the Clayton-Bulwer treaty, did we not! Mr. FORAKER. Certainly we did. We admitted it by negotiating this treaty, as I understood it at the time.

Senator BORAH, You regarded its strength at that time as merely technical, did you not?

Mr. FORAKER. We all felt that we had a right to get rid of the Clayton-Bulwer treaty at any time we saw fit to do so by simply notifying Great Britain that the conditions had so far changed that it was no longer desirable on our part to continue it; and that it was no longer applicable to existing conditions.

Senator BORAH. In other words, if Great Britain had refused to yield upon any substantial matter, speaking for yourself, would you have regarded the Clayton-Bulwer treaty as of sufficient

Mr. FORAKER. I would have regarded the Clayton-Bulwer treaty as one that we could put an end to by notifying them of that fact in the way recognized by international law.

Senator BORAH. In other words, its existence continued by reason of the fact that technically it had not been notified?

Mr. FORAKER. That was all. That was the opinion that generally prevailed at that time. I had occasion to go to the Library yesterday about a different matter entirely, and saw there in either the Literary Digest or some other periodical like that a statement that Senator Lodge had intended to offer a resolution denouncing the ClaytonBulwer treaty at the meeting of Congress in December following the negotiation of this treaty, if this treaty was not acceptable to Great Britain.

Senator BRANDEGEE. What is the difference between a treaty actually in existence and a treaty technically in existence?

Mr. FORAKER. One that is actually in existence is, I suppose. one that is framed with respect to conditions that are still continuing. One that is only technically in existence is a treaty. I would suppose I have never had occasion to give a definition of it before-that was framed with respect to conditions existing which had largely changed just as they had here.

Senator BRANDEGEE. But when the conditions had largely changed, but neither party has notified or denounced the treaty, it is just as actually in existence as any other treaty?

Mr. FORAKER. Certainly it is. We took that view of it, and for that reason Mr. Hay negotiated this treaty. But we did not thereby abandon our right to denounce the treaty if we saw fit to do so, and I saw this notice that Senator Lodge intended to introduce a resolution of that kind at the approaching session of Congress if we did not succeed in making an agreement with Great Britain.

Senator BORAH. Do you recall, Senator, that the Foreign Relations Committee as far back as 1884, when John Sherman, Evarts, and a number of that class of men were on the Foreign Relations Committee, made a report in which they declared that the Clayton-Bulwer treaty was obsolete; that the conditions had so changed as to render it such, and that in addition to that Great Britain had some twice or thrice violated it?

Mr. FORAKER. Yes; I remember that very well, except that I am not sure that you have the year correct-1884.

Senator BORAH. I am not sure of the year either.
Mr. FORAKER. I think it was 1890, perhaps.

Senator BORAH. But that was a unanimous report upon the part of the Foreign Relations Committee of the Senate?

Mr. FORAKER. Yes, Democrats and Republicans alike unanimously signing it. I had occasion to cite that not long ago in some remarks I made at Cleveland, Ohio, and therefore I have a very distinct recollection about it except as to the date. I think it was 1890. You said 1884. But whenever it was they did do that very thing. Senator BRANDEGEE. Was it ever considered by the Senate? Mr. FORAKER. I do not know whether it was or not. I know they made that report.

Senator BRANDEGEE. It was never voted on, was it?

Mr. FORAKER. Well, I do not know. You gentlemen can find that out here without going to as much trouble as it would be for me.

Senator WALSH. Senator Foraker, in answer to a question addressed to you by Senator Simmons I understood you to accede to his suggestion that all three amendments proposed by the Senator to the first Hay-Pauncefote treaty were incorporated in the second treatythat the concessions were made by Great Britain?

Mr. FORAKER. No, I did not say that. If I am reported as saying that I would like to have it corrected.

Senator SIMMONS. I did not understand that.

Mr. FORAKER. What I have said was that the two amendments that I offered were both incorporated in the second Hay-Pauncefote treaty, and the amendment offered by Senator Davis, and adopted by the Senate to the first treaty, was left out, and along with it the prohibition against fortifications, which made his amendment unneces

sary.

Senator WALSH. I wanted to call your attention to this. The following amendment was proposed by the Senate to the original treaty:

It is agreed, however, that none of the foregoing conditions and stipulations of this article shall apply to measures which the United States may find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order.

That appears not to have been incorporated in the treaty which eventually became effective. Will you explain that?

Mr. FORAKER. Was that Senator Davis's amendment?

Senator WALSH. It must have been, because

Mr. FORAKER. We left that out, because we left out all reference to fortifications in the second treaty.

Senator PERKINS. They discussed the question of fortifications to this extent. I think Senator Davis recommended that we have peace treaties regarding the canal the same as Switzerland has to-day with the great powers, Russia, Germany, and France, having joint fortifications, but that a strict neutrality was to be observed. I think you took that position that if they wanted to fortify it it must be done thoroughly, as otherwise it would be of no avail.

Mr. FORAKER. We all proceeded upon the theory, as I remember it, that if we said nothing whatever about fortifications we had a right to fortify without consulting anybody, if we had no copartners in the transaction. That was the reason we were cutting everybody out.

Senator WALSH. Did you not assume, Senator, that rule 2 of the six rules, to the effect that "the canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it," would prevent you from building fortifications there or utilizing them in case you desired to do so?

Mr. FORAKER. No; we did not.

Senator WALSH. That would be an act of hostility, would it not? Mr. FORAKER. That might be possible in one construction of the word, but I can not remember after this long lapse of time each and every idea that might have come into our minds at the time. I only remember that we struck out everything in regard to fortifications that was in the nature of a prohibition, or aimed to, and in that way, as we assumed, we left ourselves with a free hand to protect the canal by fortifications, if we saw fit to do so.

Senator WALSH. What significance did you give then to rule 2? Mr. FORAKER. Let us see what rule 2 is. That is the one you have just read?

Senator WALSH. Yes.

Mr. FORAKER. Rule 2 reads:

The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it.

Well, I can not remember at this late day just what significance was attached to this word or that or the other paragraph of it. I only remember that we supposed we were reserving to ourselves the right to fortify the canal if we saw fit to do so, as we afterwards did.

Senator BRANDEGEE. Would you not regard the specification in rule 2, Senator, that "the United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against lawlessness and disorder" as an indication that these rules were to apply to the United States?

Mr. FORAKER. Oh, yes; certainly I would.

Senator BRANDEGEE. If they did not, there would be no sense in exempting the United States from this particular rule, would there? Mr. FORAKER. Perhaps not.

The CHAIRMAN. Senator, did you ever hear that that particular clause to which your attention has just been called by Senator Brandegee, and which was part of the prohibition against fortification in the first treaty, found its way into the second treaty through inadvertence that it had no place in the second treaty?

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