There is only one other thing I want to call your attention to, and that is in his following letter, of date August 20, 1901. I read at the top of page 267, referring to Lord Lansdowne; he says:

He recognizes the full force of what I had to say as to the inexpediency of inserting the words "which shall agree" and "so agreeing" in clause 1 of article 3 after the striking out by the Senate of article 3 in the H. P. treaty. He should emphatically favor omitting them, and thought his Government would assent to the omission; and he seemed to agree that making it read "all nations observing these rules," etc., would reach their object, which is that Great Britain and all other nations should be served alike and be on an equal footing as to obligation to observe the neutrality of the canal.

I read that much of it. I might read more, but I do not want to detain the committee. I would remark from this correspondence it appears from your own record Mr. Choate and Mr. Hay understood this precisely as the Senate understood it; that is to say, we were to own the canal, we were to control the canal, but it should be open to others on terms of equality and should be neutralized according to rules that did not have any reference to the tolls at all. The item about tolls is a declaration of a right on condition that if they observe our rules they may come through the canal, paying such tolls as we prescribe.

Senator SIMMONS. What you have read, Senator, with reference to the objection which Mr. Choate urged against the words "open to other nations agreeing" applies altogether to Mr. Choate's views and contention that we did not want to invite other nations and that we did not want to make a treaty which would require them to come in and agree to anything?

Mr. FORAKER. Yes.

Senator SIMMONS. And he was insisting that instead of giving these advantages to nations who might agree to the terms and conditions of the treaty we should only extend it to nations who observed these particular rules?

Mr. FORAKER. Yes.

Senator SIMMONS. That was the gravamen of that?

Mr. FORAKER. That was the purpose of it, but it differed in that respect from the first Hay-Pauncefote treaty where they invited other nations to adhere, and Mr. Choate negotiated that treaty.

Senator SIMMONS. The Senate rejected, failed to ratify, the first Hay-Pauncefote treaty because of about three objections-I think it was about three?

Mr. FORAKER. Three amendments.

Senator SIMMONS. Great Britain practically agreed to remove those objections. She did not agree to the amendments in terms, which the Senate made in the first treaty, but she agreed to modifications in the treaty, or eliminations from the treaty which in effect. met the three objections of the Senate?

Mr. FORAKER. Yes.

Senator SIMMONS. Those changes did not at all affect the agreement of this country to give entire equality of treatment to the vessels of all nations agreeing to these rules, observing these rules, so that there might be no discrimination against the citizens or subjects. of any other nation with respect to their traffic. Is not that true, Senator?

Mr. FORAKER. Not as I understand it. The point that I was trying to make a moment ago was that the first paragraph of article

3, upon which you rely, is not one of the rules at all. It is simply a declaration of a right nations will acquire if they observe our rules for the neutralization of the canal, which neutralization of the canal is provided for in four or five rules immediately following, all of which have relation to war, prohibiting blockading; prohibiting from committing acts of war within the canal; landing munitions of war; and all that sort of provisions that could not by anybody be held, I should think, to apply to the United States. We did not so understand it.

Senator SIMMONS. As I understand you, you contend that the United States is not included in the term "all nations" "?

Mr. FORAKER. I do, for this reason

Senator SIMMONS. That is the argument you make in support of that contention?

Mr. FORAKER. I do so view it for that reason, and because I think it would be entirely inconsistent with our purpose, the building of a canal at such great cost and building it for the purpose we were building it for primarily nobody stopped to consider whether or not it would be a profit-paying canal. You, I think, were in the Senate at that time?

Senator SIMMONS. I was in the Senate at the time of the HayPauncefote treaty.

Mr. FORAKER. You must know that we did not consider whether it was going to pay enough tolls to be a profit-paying enterprise. We were going to build it, no matter what it cost.

Senator SIMMONS. That was not the question to which I wished to direct your attention in cross examination; that is not the point I wished to make. I understood your position about that yesterday, and I think you restated it to-day.

Mr. FORAKER. I fortified it to-day with what Mr. Choate says, saying it was thoroughly understood that no other nation was to have any contractual right with respect to that canal. None whatever. It was to be ours absolutely, to be controlled by us as we saw

fit.

Senator SIMMONS. You did not undertake to say, though, that Mr. Choate, by anything he admitted that the United States had the right to discriminate in favor of its coastwise trade on rates?

Mr. FORAKER. I do not know what Mr. Choate has said, therefore I can not make any comment on it. I have a very high regard for Mr. Choate as a man of honorable character. I should pay much attention to anything Mr. Choate would say, just as I would to anything Senator Root might say, but I learned long ago that sometimes the best of men get notions that I can not account for; they are not in accord with mine, and then I have to differ.

Senator SIMMONS. Senator, because of the argument you have made, based upon the language of this article you have read there, you have urged that the Senate must have been under the impression that the United States was not included in the term "all nations." You do not contend that Mr. Choate ever occupied that position or that there is anything in his correspondence to indicate that he had that view? Mr. FORAKER. Yes, I do. I cited his correspondence just now to show that Mr. Choate could not possibly have had that idea when he was penning these sentences, if he rightly understood, as I understood it, what he was saying.

Senator SIMMONS. But suppose Mr. Choate believed that the United States did not have the right to discriminate in favor of its coastwise trade and so stated, would you still believe that he entertained that view?

Mr. FORAKER. I would think either that his memory was at fault or his reasoning, having in mind what I have just put into the record. Senator SIMMONS. Do you think it is likely that his memory would be at fault as to what was his understanding with reference to the effect of this article in the treaty upon the rights of the United States with respect to its coastwise trade?

Mr. FORAKER. I think his memory was at fault in view of what he has written. I did not know what he had written at the time the treaty was framed, and I did not know it when I testified yesterday, except only I had taken this testimony and glanced through it and seen that his letter was an important one; I wanted to read it before I testified to the effect of it, and I did read it last night. It seems to me conclusive of the whole matter, that he understood it precisely as we understand it.

Senator SIMMONS. You admit that Mr. Choate's connection with the making of this treaty was closer than that of any Senator? Mr. FORAKER. Yes; I think so.

Senator SIMMONS. And you would admit, I think, that Mr. Choate is as great a lawyer as we probably have in this country.

Mr. FORAKER. Yes; I have unbounded respect for Mr. Choate as a lawyer and as a man of honor and high character. I do not question anything of that kind for a moment.

Senator SIMMONS. Then, Mr. Choate having this intimate connection with the transaction itself, and being a great lawyer, when he says (as he does say in the letter which I read yesterday) that clearly the United States did not acquire the right to discrimination in favor of its coastwise trade, you would infer from that that he did not have the view with respect to this treaty that you think the Senator had?

Mr. FORAKER. He did have the view, according to his letter to Mr. Hay, that the Senate had, as I understood the views of the Senate. I long ago learned that I was not always correctly informed as to the views of other Senators. I knew what my own views were. Sometimes they were different from the views of others, but he did not have the view according to his letter to you in that respect that the Senate had, and does not have the view in making that statement that he himself expressed in this letter which I quote. That is what I am calling your attention to.

Senator SIMMONS. In that letter he did not discuss coastwise trade?

Mr. FORAKER. He did not discuss coastwise trade.

Senator SIMMONS. He did not discuss the right of the United States to discriminate either in favor of its coastwise or of its foreign trade. You had argued, as I understood you, that what he says there would be inconsistent with the position that the United States does not possess the right

Mr. FORAKER. I say inconsistant, because the first article of this treaty provides that the United States shall have the right to construct I think it is the first article this canal at her own cost and that she shall have, as a result, all the rights of construction, which

means ownership, of course, and if we had all the rights of ownership and everybody else was cut out from any contractual right in it, why should we not do as we saw fit within the limitations of what would be equitable and just?

Senator SIMMONS. I want to get back to that after awhile, but I want to read now this letter from Mr. Choate. This is a letter that Mr. Choate has written during this present month about this matter to Mr. Harry White, who was the secretary of the legation at the time this treaty was negotiated and who has testified before this committee that it was his understanding that the United States would extend and agreed to extend the same right to every other nation that it claimed for itself with respect to passage through the canal. This is a letter that he writes to him on the 14th day of April, of this

year:

As I telegraphed you last night, on receipt of your telegram of yesterday, I wrote to the chairman of the committee, Senator O'Gorman, inclosing to him, by the express permission of the Secretary of State, a copy of my letters to Secretary Hay between August 3 and October 12, 1901, the same that you have.

Those are the letters published in this document that you have just read.

Mr. FORAKER. Yes.

Senator SIMMONS. He was referring to the very letter you have just read, showing that he probably had refreshed his memory by reading those letters, and after sending these letters to the chairman of this committee, Senator O'Gorman, and inclosing a copy to Mr. White, who was his secretary and closely associated with him in the negotiation of these treaties, he adds these words:

To my mind they establish beyond question the intent of the parties engaged in the negotiation, that the treaty should mean exactly what it says, and excludes the possibility of any exemption of any kind of vessels of the United States

equality between Great Britain and the United States (not equality between Great Britain and the other nations), but equality of treatment between Great Britain and the United States is the constant theme [referring to these letters]—

and especially in my last letter of October 2, 1901, where I speak of Lord Lansdowne's part in the matter, and say, "He has shown an earnest desire to bring to an amicable settlement, honorable alike to both parties, this long and important controversy between the two nations. In substance, he abrogates the Clayton-Bulwer treaty, gives us an American canal, ours to build as and where we like.

That we did not have before.

To own, control, and govern on the sole condition of its being always neutral and free for the passage of ships of all nations on equal terms, except that we get, if we get into war with any nation we can shut its ships out and take care of ourselves.

That, according to Mr. Choate's view, was the only exception from absolute equality of treatment between the United States and other nations in using this canal.

The CHAIRMAN. Senator Simmons, would you pardon a suggestion at this moment?

Senator SIMMONS. Yes, sir.

The CHAIRMAN. In view of that last statement of Mr. Choate, do you claim that the United States was bound by the rules of neutrality when the distinct assertion is made that in time of war that the United States need not respect neutrality?

Senator SIMMONS. Why, Mr. Chairman, we went into quite an argument about that the other day, and I gave my views about it at that time, and I suppose that the basis of Mr. Choate's conclusion, the last treaty that we negotiated, the one that was ratified, and the one under which we built the canal, required the United States to police the canal.

The CHAIRMAN. That provision was in the first treaty also? Senator SIMMONS. With reference to policing; yes, sir. It also provided for the fortification of the canal and provided

The CHAIRMAN. That is in the first but not in the second? Senator SIMMONS. And the United States should guarantee the neutrality of the canal. Now, the United States could not do that except by employing its own vessels for the purpose of policing, for the purpose of protecting these fortifications which it was required to make; and it would be a very strange proposition if after imposing the duty upon the United States to protect the neutrality through the use of its vessels, to police it with the use of its vessels, it should be required to pay tolls upon those vessels. I did not want to go

off into that discussion.

Mr. FORAKER. I have read that letter.

Senator SIMMONS. I want to read to you a short letter which Mr. Choate wrote to the chairman of the committee at the time he sent him this correspondence between him and the representatives of the British Government while the negotiations were going on in reference to this treaty. That is of date April 13, 1914:

8 EAST SIXTY-THIRD STREET, April 13, 1914.

DEAR SENATOR O'GORMAN: As I am unavoidably prevented from accepting the courteous invitation of your Interoceanic Canals Committee for to-morrow,

I think the word will is left out

avail myself of your kind permission to submit anything of mine not already published that might throw light on the pending question.

I, accordingly, with the express permission of the Secretary of State, submit to your committee the inclosed copies of letters written by me to Secretary Hay between August 3 and October 12, 1901, giving step by step the negotiations between Lord Lansdowne and Lord Pauncefote and myself in regard to the Hay-Pauncefote treaty. These, if carefully perused, will, I think, be found to confirm my view that the clause in the Panama Canal act, exempting our coastwise shipping from tolls is a clear violation of the treaty.

With great respect, most truly yours,

Hon. JAMES A. O'GORMAN, Chairman.

JOSEPH H. CHOATE.

Mr. FORAKER. I learned from the newspaper reports that he was of that opinion.

Senator SIMMONS. That would seem to be his view about it not only at the time, but his view after refreshing his memory, after reading all the correspondence between him and Lord Lansdowne and Lord Pauncefote.

Mr. FORAKER. I agree to your statement in part that that would seem to indicate it is his present opinion, but the correspondence from which I read indicates that he had a different opinion at that time, as I understand it, and I was not hunting for differences of opinion either; I was trying to familiarize myself with the record you were making. Now, I find another paragraph over here that I might read, but I will not stop to litter up the record with rereading what is there. but if you read Mr. Choate carefully you will find he