THURSDAY, APRIL 23, 1914. COMMITTEE ON INTEROCEANIC CANALS, Washington, D. C. The committee met at 10.30 o'clock a. m., pursuant to adjournment of April 22, 1914. Present: Senators O'Gorman (chairman), Thornton, Shields, Walsh, Thomas, Owen, Simmons, Brandegee, Borah, Bristow, Perkins, and Page. STATEMENT OF JOSEPH B. FORAKER-Resumed. The CHAIRMAN. The committee will come to order. Senator Simmons, I understand, wishes to ask some questions. Senator SIMMONS. I should like to ask Senator Foraker just a few questions. I think you said yesterday that it was the impression prevailing among the members of the Committee on Foreign Affairs at the time the Hay-Pauncefote treaty was reported, it allowed discriminations in favor of our coastwise and of our foreign trade as well? Mr. FORAKER. I do not think I could have said that as to the first Hay-Pauncefote treaty. That was our objection to it, that it continued the Clayton-Bulwer treaty in a modified form, but that was the purpose of the second Hay-Pauncefote treaty, and that was the purpose of the amendment to the first Hay-Pauncefote treaty, of which I spoke yesterday. Senator SIMMONS. The difference between the first and the second Hay-Pauncefote treaty did not in any way relate to section 1 of Article III. They were the same in both, were they not the article which relates to entire equality of treatment of the vessels of the two nations? They were the same in both treaties, were they not? Mr. FORAKER. I think they were, but there is this observation I would make with respect to section 1, as you term it, of Article III as it now stands, that the paragraph to which you refer is not a rule at all; it is only a declaration of right on condition. The rules follow, and the rules are utterly inapplicable to the United States in both treaties. Senator SIMMONS. I am speaking now of a stipulation in the treaty which is in the nature of an agreement between the two Governments as to the equality of treatment of vessels going through the canal, should it be built by the United States or under its auspices. There is no part of the treaty that would be more obligatory upon the United States than that which declares the policy of the two countries as to the equality of treatment of vessels which go through the canal, is there? The canal is built for the purpose of accommodating vessels; as it would seem to me, that was probably one of the most vital provisions in that? Mr. FORAKER. Yes; but we were to build a canal and we were to maintain the principle of neutralization. The question is what you mean by "neutralization." It does not mean equality of tolls, as I ever understood. "Neutralization" has reference to conditions of war, and all the rules of Article III that are mentioned are prescribed as the basis for the neutralization of the canal by the United States, and the first paragraph upon which you rely and to which you now call my attention, is not a rule at all. Let me read that to you so as to make clear what is in my mind. That is the point at issue. It is all based on that. Article III. The United States adopts as the basis of neutralization of such ship canal the following rules, substantially as embodied in the convention of Constantinople, signed the 28th of October, 1888, for the free navigation of the Suez Canal. Now, to begin with, the Suez Canal was owned by a private corporation that had no ships, either of war or of commerce, and could not commit acts of hostility or acts of war, and could not build fortifications or maintain them. Those are the functions of government. But passing that by with this simple comment, that inasmuch as those rules did not apply to the owner of the Suez Canal, neither did they apply, as I understood it, to the owner of our canal, which was the United States Government. But now follow the rules to which reference is made: 1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these rules. We did not imagine that if we prescribed certain rules as we were by ratifying this treaty, that we would lose our right to use that canal if we failed to observe those rules. That evidently had reference to other nations. We were to prescribe rules and the canal should be open to all nations on terms of equality, that observed our rules. Senator SIMMONS. Senator, I do not think there is any disagree ment Mr. FORAKER. Let me finish my answer, if you please. That is the whole of that paragraph; I did not read all of it either, but the whole of it is of the same general tenor or effect. In other words, as I said a moment ago it is a mere declaration of a right on condition: the condition being the observance of the rules that we were to prescribe as the owners of the canal. Now come the rules. The second paragraph is the first rule as I understand it. The canal shall never be blockaded nor shall any right of war be exercised nor any act of hostility be committed within it. And so on all the way through. All the members of this committee are familiar with the character of those rules. They all apply to conditions of war with respect to which it is proper to use the term "neutrality," or "neutralization." It is a misuse of the word to apply neutralization or neutrality to a rivalry as to anything that is peaceable in character, as trade and commerce, but if you extend it to them it had application clearly to other nations; these rules could not have application to us; we were not going to prohibit ourselves from landing munitions of war in the canal when we contemplated building fortifications that cost millions of dollars; and building as we now are for those fortifications, to arm them with the largest and most efficient guns that can be made; the whole thing would be a farce, so it seemed to me then, and does nowto undertake to apply those rules to us-and they are rules that are adopted merely as the basis of neutralization; (and now when you look at Article VIII-I took occasion to look at it last nightas either you or Senator Owen asked me about it yesterday, and I had not had occasion to look at it before) I find it simply applies to the principle of protection. I will read it; then I want to read what Mr. Choate says about it, to show that he had at that time precisely the same view of this matter that Mr. Hay had after I talked with him, and which I expressed yesterday, that the primary purpose was to cut everybody out from having any contract rights in the canal; we were going to let everybody use our canal who would observe the rules we prescribed, and so far as neutralization were concerned they had relation to war and the conditions of war, and nothing else. Let me read Mr. Choate's letter. This is important, and I should like to add it to what I was inquired about yesterday when I was not fully informed. I wish to read the letter from Mr. Choate, dated Augut 16, 1901. 1 read yesterday a letter from Mr. Hay, dated August 23, saying he had reason to believe he was going to get a treaty through that would be satisfactory to the Senate, and one which would embody all the suggestions I had made to him in the interview about which I testified. That was just seven days later, and I imagine that Mr. Hay wrote me on receipt of this letter. I have not had any opportunity to examine these matters, as you gentlemen have had, and you may ask me a great many questions that I can not intelligently answer until I can have opportunity to look up the record. The CHAIRMAN. Senator, from what page are your reading? Mr. FORAKER. From page 265, in the 6th number of these hearings, there appears a letter from Mr. Choate, dated August 16, 1901, and I say it was evidently on receipt of that letter that Mr. Hay wrote me the letter of August 23 that I put in the record yesterday. If you will look at this and allow me to read it-I omit the first opening paragraphs; looking down eight or ten lines you will find a sentence commencing as follows: I called his attention [referring to his interview with Lord Lansdowne] to the fact that while the preamble of the Clayton-Bulwer treaty limits the object and subject of the treaty to the Nicaragua route and the eighth article carefully avoids the use of the word "neutrality” In other words, the word "neutrality" is not used in the eighth article, except in the last paragraph of it, and in reference to other canals than the one then contemplated but merely agrees to extend the "protection" of the two Governments to other routes, and that in granting such joint "protection" of the two Governments to other routes, and that in granting such joint "protection" the understanding is that the canals by other routes shall be open on equal terms to the subjects and citizens of the two nations and of every other State which is willing to grant the same "protection"all of which was extremely vague and uncertain Says Mr. Choate and omitted the "guaranty of neutrality"; that wanting to get rid of the ClaytonBulwer treaty altogether we should not want to make any part of it by a new covenant stronger than it was before. Then he goes on to discuss something that I do not find in this record, article 3 A, which he had submitted, but I will read it just as Mr. Choate has it here, because all this is pertinent, and I think very conclusive of what the intention of the Senate was and what the intention of the negotiators of the treaty was. Whereas his new article 3A makes the eighth article a great deal stronger than it was before, and saying nothing about "protection," which is, of course, inapplicable to a canal wholly American, fastens the rules of neutrality of article 3, which he calls "stringent rules," upon all future routes. He said he thought article 8 of the ClaytonBulwer treaty clearly inferred neutrality, but I said it was only an inference-the word used was "protection." That is, there should be equality in the use of the canal as between the two Governments that stood sponsors for it and were to protect it as against everybody who might undertake to forfeit their franchise or destroy the use of the canal. Now, drop down a little further, and I want to read two or three of these paragraphs. Secondly. I told him that I thought his amendment of the first clause of the third article insisting upon bringing in other nations as parties to the agreement, after the Senate had struck out of the H. P. treaty the article inviting them to come in, would run counter to the very strong conviction in the Senate, sustained as I believe, by an equally strong and general popular conviction, that we ought not to accord to other nations any contract rights whatever in the canal which we were to build and own; that none of them, though invited, ever came in or offered to come in under the C. B. treaty that at present they had no rights, that they must be content to rely on our national 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. Passing over a great deal that is of similar character, I read at the last part of that paragraph as follows: 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 As I said yesterday, or should have said, all she parted with was her right to obstruct, as I understood it, and that was not a right that we favorably regarded 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. In other words, Mr. Hay had drawn his treaty as I understand it, this was the draft they had before them and had said that the canal should be free and open to all nations which shall agree to the terms and conditions. Mr. Choate properly took the view, which I think any lawyer would having his attention called to it, that that involved an agreement which made them parties to the treaty, just the thing we were trying to avoid; therefore he said, to avoid having any expression in the treaty that required them to agree to that thing and thereby become parties, he would suggest that we simply say it should be open to all nations observing these rules which we prescribe. |