means of communication by ship canal which may be constructed between the Atlantic and Pacific Oceans by the way of the river San Juan de Nicaragua and either or both of the lakes of Nicaragua or Managua, to any port or place on the Pacific Ocean, the President of the United States has conferred full powers on John M. Clayton, Secretary of State of the United States, and Her Britannic Majesty on the Right Honorable Sir Henry Lytton Bulwer, a member of Her Majesty's most honorable privy council, knight commander of the most honorable Order of the Bath, and envoy extraordinary and minister plenipotentiary of Her Britannic Majesty to the United States, for the aforesaid purpose; and the said plenipotentiaries having exchanged their full powers, which were found to be in proper form, have agreed to the following articles:

Now, what is your question, Senator?

Senator OWEN. In speaking of the disposition on the part of the Senate to disregard the Clayton-Bulwer treaty by reiterating the principle of neutralization in Article VIII, in effect you declared by that reiteration of neutralization equality of tolls to ships of all

nations?

Mr. FORAKER. Is it your idea that we continued that provision of the Clayton-Bulwer treaty, notwithstanding what is said in this treaty?

Senator OWEN. Surely you did.

Mr. FORAKER. I do not understand that we did. We cut loose absolutely, as I understood it, from the Clayton-Bulwer treaty. Senator OWEN. Why refer to the neutralization Article VIII if you did not intend to reaffirm and reiterate?

Mr. FORAKER. That simply refers to the general principles referred to in that.

Senator OWEN. The general principle is equal tolls to all nations. That is the only thing in that.

Senator WALSH. Where do you see equal tolls?

Senator OWEN. If you will read the latter part.
Senator WALSH. I have it before me.

Senator OWEN. Suppose you read it.

Senator BORAH. I shall be glad to see where you find such neutralization refers to equal tolls.

Mr. FORAKER. Let me call your attention to Article III of the Hay-Pauncefote treaty, the second one, the one under which the canal was constructed. The provision upon which it is relied by those who do not entertain the view I do is, I suppose, in the first paragraph:

1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic or otherwise. Such conditions and charges of traffic shall be just and equitable.

Then they proceed with the terms and conditions. That is a mere open declaration, and the real prohibitions are found in the succeeding sections from two down to five of that article. And I do not know of any others in the treaty that can be relied upon to sustain the contention that the Clayton-Bulwer treaty has any effect upon us now, except only in so far as the general principle announced is made applicable by what Senator Owen suggests.

Senator OWEN. The language in Article VIII to which I referred

is this:

that the same canals or railways, being open to the citizens and subjects of the United States and Great Britain on equal terms, shall also be open on like terms to the citizens

and subjects of every other State which is willing to grant thereto such protection as the United States and Great Britain engage to afford.

Mr. FORAKER. That is in Article VIII of the Clayton-Bulwer treaty?

Senator OWEN. Yes.

Senator WALSH. Are we to understand, Senator Owen, that you contend that all of that you have read is in force; that is, that it expresses the principle of neutralization referred to in the preamble? Senator OWEN. That is the only kind of neutralization that can possibly be referred to in that article, because the ordinary term 'neutralization," of course, referring to the conduct of nations during war, can not possibly be referred to as a neutralization in Article VIII, because there is nothing of the kind in Article VIII.

น

Senator WALSH. I wanted to get your idea there, because you appreciate some of that clause is gone?

Senator OWEN. The only principle of neutralization in there is equality of treatment of the citizens of all nations. I am just calling your attention to the language that the words are:

That the same canals or railways, being open to the citizens and subjects of the United States and Great Britain on equal terms, shall also be open on like terms to the citizens and subjects of every other State which is willing to grant thereto such pro-tection as the United States and Great Britain engage to afford.

Senator WALSH. Of course there is no nation that falls under the last clause except the United States, because no other nation gives such protection as the United States accords now.

Senator OWEN. The contemplation of this was that the nations of the world would adhere to the use of the canal.

Senator WALSH. That has all been abrogated.

Senator OWEN. But reasserted in this last draft of the HayPauncefote treaty, and that is why I asked an explantaion, and no explanation has been given.

Mr. FORAKER. My testimony about that is that we aimed to get rid absolutely and entirely of the Clayton-Bulwer treaty and all kinds of copartnership or other relationship to Great Britain with respect to that canal, and the same as to all other nations and powers; therefore we struck out the provision inviting other nations to adhere.

Senator OWEN. What interpretation do you give to that language reaffirming the principle of neutralization of Article VIII?

Mr. FORAKER. The principle of neutralization of Article VIII? I do not know that I understand just what is in your mind that you want me to answer to you, but if you will look at Mr. Choate's letter, published at page 265 of your record, you will find a discussion of that then before him. He understood in the negotiation of the treaty that we were cutting loose entirely from the other treaty in every respect, except only as that reference might carry it forward for consideration in connection with the matter, not as binding upon anyanybody, but simply as affording a rule.

Senator OWEN. Did you not know that Mr. Choate thought that the tolls applying to other vessels should apply also to American vessels?

Mr. FORAKER. I know what Mr. Choate has been saying, having learned it recently. I did not know at the time when we were con

sidering the treaty what he had been saying. His communications were not before the Senate.

Senator OWEN. Did you not have his letters before the Senate? Mr. FORAKER. We did not have his letters before the Senate, at least I have no recollection of such a thing. I have no idea they were there.

Senator OWEN. Did you have Secretary Hay before the Senate? Mr. FORAKER. No; he was not there either.

Senator OWEN. And you asked no questions of him as to this meaning of the treaty?

Mr. FORAKER. No; we considered the treaty as he sent it to us. We thought it was plain enough we understood it to be, and we ratified it in accordance with our understanding of what it meant.

Senator WALSH. Is it your understanding, Senator Owen, that in this correspondence with Mr. Choate that was read the other day here, conveyed the idea that the treaty as it was framed required the imposition of the same tolls upon American vessels as upon the vessels of foreign nations?

Senator OWEN. Yes.

Senator WALSH. You understand that he so recites in the correspondence?

Senator OWEN. Yes; I understand so.

Senator BRISTOW. The letters read here?

Senator OWEN. His letters to the Department of State are perfectly plain about it.

Mr. FORAKER. I think there is room for debate about that, at any rate. I only got hold of this an hour or two ago, and I tried to read it. I am sorry I did not have time to read it until I was entirely familiar.

The CHAIRMAN. In Mr. Choate's letters some members of the committee here and Senator McCumber believed he declared unequivocally his opinion in those personal letters, but I have not been able to find anything in his correspondence with Mr. Hay 12 or 13 years ago to that effect.

Senator BRANDEGEE. May I inquire whether the report to which Senator Foraker has alluded as having been made by the Committee on Foreign Relations on the first Hay-Pauncefote treaty, which he says the members of the committee did not sign, but which was made by the chairman, Senator Cushman K. Davis, has been printed in these hearings?

The CHAIRMAN. I do not know.

Senator BRANDEGEE. I mean in these hearings we are now conducting. If it is not I should like to ask that it may be.

Referring to that, am I correct in my recollection of what you said that the committee members individually did not sign it, but it was made by Mr. Davis for the committee?

Mr. FORAKER. I saw it either in the record of this committee or some other, and there was no other signature except that of C. K. Davis, chairman, and I know I never signed it, and I never agreed with some of the things in that report.

Senator BRANDEGEE. But it was done in behalf of the committee? Mr. FORAKER. Yes.

Senator BRANDEGEE. And there was, if my recollection serves me, the views of the minority signed by Senator Morgan, of Alabama? Mr. FORAKER. Yes.

Senator BRANDEGEE. Now that report, and I will not undertake in what I am going to say now to state it verbatim-but that report in a general way refers to Article VIII of the Clayton-Bulwer treaty, which we are now discussing, and quotes it, laying emphasis upon the fact that when that article says that the "Governments of the United States and Great Britain having not only desired, in entering into this convention, to accomplish a particular object, but also to establish a general principle," that "general principle" referred to was the principle of equality of treatment, and the report of Senator Davis lays much emphasis upon the fact that that principle of equality of treatment of the shipping of all nations in the canal had been so firmly established, not only in this treaty, but by the officials of the nations and by the neutralization of the Suez Canal, that when the Hay-Pauncefote treaty made Article VIII the basis of neutralization of the Panama Canal, that the principle of equality of treatment was thereby imbedded in the Hay-Pauncefote treaty. Now, I do not mean to state that accurately in every particular, but to offer it as the general view of Senator Davis.

Mr. FORAKER. I think everything that preceded this second treaty is more or less inapplicable to the proper construction of this treaty, because in all previous treaties and all previous enactments in respect to it, it was contemplated that the canal should be built by private capital-some private corporation. We had been running along for half a century trying to get a canal down there in that way and every effort had failed. Finally we came to the conclusion there was a great national necessity for a canal at that point and that private capital would not undertake it, so the Government itself undertook it; a new leaf was turned in the whole matter. So we stand in a different relation to that canal than do the owners of the Suez Canal, or than do the nations stand in relation to the Suez Canal. The Suez Canal is owned by private capital, a private corporation. England owns a control of the shares of the stock, I suppose. I have seen it so stated, and that makes a great difference in the whole situation.

Senator BRANDEGEE. I agree perfectly that possibly the HayPauncefote treaty of 1900, which did not become operative, in its first article and with the consent of the committee I will read itdid contemplate the construction, possible, by a money-making company, and it provided:

ARTICLE I. It is agreed that the canal may be constructed under the auspices of the Government of the United States, either directly at its own cost or by gift or loan of money to individuals or corporations or through subscription to or purchase of stock or shares, and that, subject to the provisions of the present convention, the said Government shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.

Senator BRISTOW. Senator Foraker, if the construction placed upon this treaty by Senator Brandegee and Senator Owen-that is, that England has the same rights under the Hay-Pauncefote treaty, so far as the passing of her vessels through the canal is concerned, that she had under the Clayton-Bulwer treaty-then the Hay-Pauncefote treaty was very much more favorable to Great Britain than the Clayton-Bulwer treaty was?

Mr. FORAKER. Very much more favorable; yes.

Senator BRISTOw. And instead of yielding anything, why, the yielding was all on the part of the United States?

Mr. FORAKER. Yes.

Senator BRISTOW. That we agreed that England should have the same rights and the same privileges and that we could construct the canal, bear all the burdens, assume all the responsibility, and she did not have any, still she would give us nothing whatever?

Mr. FORAKER. That follows from their construction, as I understand it. I may not understand what they contend for, and that certainly never was contended. It was intended to cut loose absolutely from the Clayton-Bulwer treaty and everything else connected with it in the way of an obligation of the United States. I know-at least, some of us had that in view, and we expressed it in debates in the Senate that we would build a canal that would be an American canal: we would build it with American money; we would build it according to our own plans and specifications, and when we got done with it, use it ourselves and share the use of it with all other nations on terms of equality, so far as they were concerned, among themselves, but not on terms of equality with us.

Senator BRISTOW. Does not that whole question depend upon whether the parties themselves considered the building and operation of the canal as a burden or a privilege?

Mr. FORAKER. We considered it both a burden and a privilege. It was a burden of no small moment.

Senator BRISTOW. I say whether a man thought he was getting the better of a bargain by the other man owning and paying for it and running it depends upon the opinion of the party. If national defense was the first consideration for that, and we did not care whether it was to cost $1,000,000 or $2,000,000, and we were asking that England should give the right to us exclusively to build it, it looks to me as though we did not consider it a burden, or if we did consider it a burden we were anxious to assume it for our own protection.

Mr. FORAKER. No; we were assuming the burden simply for this purpose, in order that we might absolutely control it. We built it as a part of our national defense, rather than for commercial purposes, and building it for our national defense, we could not afford to have any copartnerships, and we undertook to cut them all out.

Senator THOMAS. Suppose that the canal had been constructed by private capital, as it might have been under the treaty, do you think the United States would have had the right to insist on the exemp tion of its coastwise or other traffic?

Mr. FORAKER. I do not know what might have been done under contingencies that did not arise, and I only know from the beginning why we had that general provision. It was the paramount purpose and thought of everybody that it was an undertaking of such great moment, to cost so much money, that it was a worthy and necessary national enterprise and the Nation would have to do it.

Senator THOMAS. The treaty for the contingency of private

construction?

Mr. FORAKER. Yes; it did.

Senator THOMAS. Consequently it must have contemplated the rights of the contracting parties in such an event?

Mr. FORAKER. Yes.