Mr. FORAKER. Well, perhaps not; but I do not remember to have heard any discussion on that subject.

The CHAIRMAN. Did you hear the subject discussed as to whether any of the provisions of the treaty as finally ratified placed any restraint on the United States with respect to the passage of our own vessels of commerce or of war through the canal as we saw fit?

Mr. FORAKER. No; I never heard of any restraint being suggested upon us in that respect. I understood all the way through that our purpose was to negotiate a treaty and secure its ratification on which we would have a free hand without copartnership with anybody about anything. And that we were, however, going to make the canal a free and open canal to all other nations upon the same terms among themselves, but so far as we were concerned we were to do with it as we might see fit, subject of course to such limitations as are put in the treaty. That was the view I had of it all the way through.

Senator WALSH. Was that matter a subject for discussion in the Senate committee?

Mr. FORAKER. Yes; as I remember it now we had some discussion about it in the committee, though I can not recall that particularly. When the second treaty came in it was regarded by the committee, so far as my recollection goes now, as entirely satisfactory and we reported it favorably.

Senator WALSH. You recall that Senator Bard proposed an amendment to the original treaty specifically covering that subject?

Mr. FORAKER. I remember that he offered an amendment which it was thought was unnecessary. That Bard amendment was offered and voted down because it was thought unnecessary. We had absolute control with respect to the whole matter, and to specify that a certain class of ships should be exempt from the payment of tolls was impliedly to declare that all other classes would have to pay tolls. Ships engaged in our coastwise trade were covered by the Bard amendment, as I remember it, and ships engaged in the foreign trade were not. We wanted to reserve the right, and understood we had done so. That is the reason we voted down the Bard amendment, to exempt ships in the foreign trade as well as in the coastwise trade.

Senator WALSH. Did that view prevail in the committee when the second treaty came before it for consideration?

Mr. FORAKER. I do not remember any discussion of the second treaty in the committee at all. I have been trying to recall about it. It was reported out favorably. I suppose we had some discussion over all those details, but I do not remember now just what they were. I know we were all of one mind about it so far as the committee was concerned; at least so far as I can recollect.

Senator PAGE. You mean in regard to that point that that insertion was not necessary?

Mr. FORAKER. That that insertion was not necessary, that we had a right to do with respect to our ships in the coastwise trade and in foreign commerce as we might see fit. I had occasion to say somewhere recently that for a time at least all of the ships, ours as well as anybody else's, would, as I supposed, have to pay tolls to go through the canal, that we would want to make it self-sustaining, but I did

not imagine for one minute that anybody had a right to require us to tax our ships with regard to the canal.

Senator PAGE. You say that so far as you recall the argument was all in one direction about that matter?

Mr. FORAKER. All in one direction as far as I can recall. There was some difference of opinion. The votes on these different propositions will disclose that. That was the general impression. I know that the Senate by a very large majority voted down Mr. Bard's amendment, not because anybody wanted vessels engaged in the coastwise trade to pay tolls to pass through this American canai, but because they did not want even impliedly-that was one of the reasons, at least to require ships engaged in foreign commerce to pay tolls to pass through an American canal.

Senator WALSH. If you feel at liberty to talk on the subject, Senator Foraker, will you tell us whether the view was advanced in opposition to the Bard amendment that it was in violation of the spirit of rule 1 of article 3?

Mr. FORAKER. I do not think anybody made any objection of that kind to it at all, and yet there might have been. There was a vote for Mr. Bard's amendment, but it was a small vote, as I remember it. I have not looked at the record. I think the contrary view prevailed by a very large majority.

Senator OWEN. The vote was 43 to 27.

Mr. FORAKER. Twenty-seven is a little larger vote than I thought Mr. Bard's amendment received. I do not remember who the Senators were who voted for the Bard amendment, but I know it was voted down by a large majority.

Senator OWEN. Those who voted for it would naturally have thought it necessary, would they not?

Mr. FORAKER. Well, they may have thought so. We were not unanimous about any of these propositions.

Senator OWEN. But the 27 Senators who voted for it would necessarily have thought it necessary, would they not?

Mr. FORAKER. Well, I do not know whether they really thought it necessary. They might have been anxious to make it beyond question. They might have thought there would be some question about it if they did not specifically exempt them. There was some difference of opinion.

Senator OWEN. I was just thinking of the 27 who thought it was necessary, and wondering if those who voted it down would not have been justified, in view of that large number of Senators who did think it necessary, to solve that doubt by putting it in?

Mr. FORAKER. The vote was so strong, as I remember it-I do not know how the vote stood relatively-that it was thought to indicate that there was no doubt, no real serious doubt, in the minds of Senators. The CHAIRMAN. Senator Beveridge was one of those who voted in favor of the Bard amendment?

Mr. FORAKER. Yes.

The CHAIRMAN. Did you read his statement recently published, that although he voted for it he was one of those who believed it wholly unnecessary?

Mr. FORAKER. I think every Senator knows in his own experience that very frequently Senators vote for propositions that they do not

think are really necessary, but to perhaps set it beyond any doubt in any controversy that might possibly arise.

The CHAIRMAN. Was not the opinion expressed by some of your colleagues at that time that an express declaration of the right to exempt coastwise shipping might be construed as a recognition of your inability to exempt over-seas trade?

Mr. FORAKER. Yes, sir. There was a good deal of discussion of that kind, but I do not remember who the Senators were. But I remember that subject was very generally discussed in the Senate.

Senator BRANDEGEE. It is your view, is it not, Senator, that we have a right to exempt our vessels in the foreign trade as well as in the coastwise trade?

Mr. FORAKER. Yes, I think we have.

Senator BRANDEGEE. I assumed so. Let me ask you this: I did not hear the first part of your testimony, and you may have said something about it. If so, I waive the question. Of course, you are familiar, as we all are, with the historical events that led up to the formation of the Clayton-Bulwer treaty?

Mr. FORAKER. Yes.

Senator BRANDEGEE. The apprehension by both Great Britain and America that the other might acquire the exclusive right to control and operate the canal, which resulted in the formation of the Clayton-Bulwer treaty, which, to state it in a brief manner, provided that neither should acquire the exclusive right, and that no canal which should be protected by those two powers could be built except practically by a partnership arrangement, with joint operation and control by both?

The CHAIRMAN. Will you pardon me there, Senator?

Senator BRANDEGEE. Yes.

The CHAIRMAN. Do you think you correctly state the fact when you say there was an agreement that there should be a partnership arrangement between the two Governments with reference to the construction?

Senator BRANDEGEE. Yes, I think so. gestion you wish to make, however.

I will listen to any sug

The CHAIRMAN. Let me suggest, according to my reasoning, just what the Clayton-Bulwer treaty was.

Senator BRANDEGEE. For the purpose I was going to ask the question I did not think it was material to be very exact about it, but I am perfectly willing that you should state it exactly as you understand it.

The CHAIRMAN. The only effect of the engagement made by either Government was that neither one, without the consent of the other, would attempt to secure the control of any ship canal that might be built in Central America. Secondly, that neither one would attempt to colonize or maintain colonies in Central America. Neither one undertook to build the canal, but they then proceeded to say that whenever a canal was built that these two Governments would give their protection to that canal if the prices and rates fixed were reasonable and satisfactory, and if the same rates would be applied to both the citizens of the United States and of Great Britain, as well as to such other countries that might come in and share with the United States and Great Britain in protecting the canal. They did not obligate themselves to protect every canal. It was made conditional

upon the prices being fixed by the owner of the canal being reasonable and satisfactory.

Senator BRANDEGEE. I tried to give my idea a little more briefly and not so accurately as the Senator has tried to give his, but inasmuch as we may as well be perfectly accurate, I will read into the record Article I of the Clayton-Bulwer treaty. Then we will know what we are talking about.

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 nor 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 subjecta of the other.

As I stated it, they practically had equal rights as to the canal under this treaty?

Mr. FORAKER. I so understand it.

Senator BRANDEGEE. At our solicitation Great Britain entertained a proposition to supersede this treaty by another one, which other one was finally negotiated and ratified and was the treaty of November 18, 1901, known as the Hay-Pauncefote treaty, under which we have exclusive right to construct and operate that canal. Great Britain abandoned her partnership right there. If we have got a right under the construction of that treaty to exempt all our shipping, both foreign and domestic, and to impose tolls upon all of Great Britain's shipping, Great Britain's shipping much in excess of ours, what consideration did Great Britain get for the abandonment of her partnership rights and giving up the exclusive control?

Mr. FORAKER. I think you could answer that as well as I, but you might answer it differently from what I would. Great Britain got a right to the use of a canal on certain terms and conditions that she did not have to put up a dollar to help build, and in respect to which she took upon herself no liability whatever, not even to defend it. We built the canal at our sole expense, and we have to keep it in repair, and we have got nearly $400,000,000 of bonds outstanding to pay for it, and if there should come an earthquake and destroy the canal to-morrow, Great Britain would simply sail around the other way and leave us to pay the debt. I think we have every disadvantage as well as advantage and have a right to insist on the control of the canal and we so understood in the Senate at the time. We wanted exclusive ownership of it and asked for it in those terms, did we not?

Senator BRANDEGEE. And, as you say, principally actuated by the motive of national defense?

Mr. FORAKER. Yes.

Senator BRANDEGEE. We could not brook the idea of a foreign power being a partner with us in the operation of the canal nor in the ownership of it?

Mr. FORAKER. No, sir.

Senator BRANDEGEE. We asked to be exclusively owners, did we not, and exclusive operators?

Mr. FORAKER. Yes.

Senator BRANDEGEE. Great Britain granted our request, and do you think she did so without the reservation of the right she acquired under the Clayton-Bulwer treaty of equality of treatment?

Mr. FORAKER. I think the Clayton-Bulwer treaty was entirely and absolutely set aside. That was the first proposition in the treaty. We had a right to denounce it, as I said awhile ago, and it was a question whether we would denounce the treaty or whether we would deal with Great Britain and try to get a new treaty, and it was thought by those having that matter in charge, I assume they did not consult me about it-that it would be better under all the circumstances, especially in view of the fact there was a very friendly feeling between the United States and Great Britain at that time just after the Spanish-American War, to negotiate a new treaty, and they set about negotiating a new treaty, with the result they sent to the Senate a treaty that did not meet the expectations and demands of the Senators. We wanted then to cut loose entirely from the Clayton-Bulwer treaty and from all obligations to consult Great Britain or anybody else, the primary reason for that being that we were building it for national defense rather than for commerce, but for commerce, of course, as an incident. And we could not afford to have any copartnership with Great Britain or anybody else in a canal which was to be constructed, operated, and maintained for purposes of national defense. That was the most important purpose. Senator OWEN. Why did you, in Article VIII of the ClaytonBulwer treaty, reiterate the principle of utilization set forth in that article?

Mr. FORAKER. I did not observe that I did - did I?

Senator OWEN. I am speaking of the treaty as it was passed by the Senate at that time, of which you were a Member, and of which you are speaking.

Senator FORAKER. Oh, why did we?

Senator OWEN. Yes.

Mr. FORAKER. The principle set forth in the Clayton-Bulwer treaty, Article VIII, which is referred to-- is it in the preamble of this first treaty?

Senator OWEN. Yes; in both the first and second treaty.

Mr. FORAKER. Well, Senator, you will have to let me look at it before I can answer you. I do not remember the point.

Senator BORAH. He has reference to the preamble which has reference to the neutralization.

Mr. FORAKER. Yes. (Reading:)

CLAYTON-BULWER TREATY OF APRIL 19, 1850.

The United States of America and Her Britannic Majesty, being desirous of consolidating the relations of amity which so happily subsist between them, by setting forth and fixing in a convention their views and intentions with reference to any