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thoroughly understood the first Hay-Pauncefote treaty was not in accord with the ideas of the Senate or the American people, and that it was necessary to make a treaty that would put an end to the Clayton-Bulwer convention and disconnect us from every other nation in the world so far as contractual rights were concerned. He says that over and over again, just as we said it in the Senate, and he negotiated the treaty on the theory that he was accomplishing that.

So far as Mr. Henry White is concerned, I knew him at the time. He came to my house the day after Mr. Hay saw me on Sunday in either April or March, as I testified yesterday, 1901, and told me he had had a talk with Mr. Hay and learned from him of our interview and the nature of it and what would be required. I do not want to go into the narration of this private conversation further than to say that all that was said indicated that he thoroughly understood we were to be absolutely released from the Clayton-Bulwer convention. That was a Senate demand, and there would not have been any treaty if we could not have gotten rid of it by agreement. This was well understood. I said yesterday I read in the Library, in the Review of Reviews, I think it was, that at that time Senator Lodge had given notice that when the Congress reconvened in December if we could not make an agreement he would introduce a resolution denouncing the Clayton-Bulwer treaty because of changed conditions and because of the fact that it was no longer desirable on our part, and because it was utterly inconsistent with our determination to have no copartnership with Great Britain or anybody else. But aside from all this, I apprehend that the committee will ascertain what the treaty means by looking at the language certainly not by looking at the language of those who have been concerned with it since--as to what their understanding was. That applies to myself as much as to anybody elsewhat took place before is pertinent, and I call your attention to that; that shows what the understanding was.

Senator SIMMONS. That is exactly my view of it. I think the Senate will probably decide this question according to its own views as to the meaning of the treaty; but on yesterday when you made your statement in chief you sought to give your views as to the meaning of the treaty and you made the impression, at least on my mind, that you thought other Senators entertained your views about it, and I was simply trying to direct your attention to the fact that Mr. Choate and Mr. White, who were the active agents of the Government in nego tiating the treaty, who were in constant communication with the British authorities representing that Government, entertained a different view about it, so that I might contrast their opportunities to have a distinct and accurate impression as to what was meant and what was intended by the treaty so far as the parties to the treaty understood it to mean at the time they negotiated, with your view. Mr. FORAKER. I am glad to have the benefit of their views. I mean their present views, and I am glad to be able to call the attention of the committee to what their views were when they were acting as negotiators, and I insist that they are entirely inconsistent with what they are now saying, because they then said over and over again, that the purpose of these amendments was to cut the United States loose from Great Britain and from everybody else and not allow anybody to have any contractual right in the canal; and Mr. Choate carried that so far

that he would not allow the words, The nations shall have use of the canal on terms of equality which shall agree," striking that ut-which shall agree-like a keen lawyer that he is, seeing that that meant that they would become parties to the agreement, to the treaty, and thus acquire a contractual right.

Just a word on another thing. "Neutralization" is used all the way through, and there are four or five clauses that refer to neutralization. Neutralization does not mean equality of tolls. Neutralization applies to conditions of war. The declaration about equality of tolls is the declaration of a right that can be acquired in a certain way with respect to our canal which we were going to build; if you will observe the rules we prescribe and pay the tolls we prescribe, all may use it upon terms of entire equality.

Senator SIMMONS. Yes, Senator; I was not desirous of examining you at all as to your reasons for the conclusion you reached. The question that I have in my mind is simply the question of whether the United States has the right under this treaty to exempt coastwise trade from tolls, thereby discriminating against other nations, and I was chiefly concerned in getting before the committee and before the country Mr. Choate's views about that, and I think Mr. Choate would hardly have sent these letters containing the statement of private interviews between him and these English authorities to the committee, accompanied by these letters, unless he understood that the correspondence and those personal interviews, as expressed in these letters, represented the views he expressed in his letters. I think he thought at the time he wrote that letter that the correspondence he was sending to the committee bore out the statements he was making in that letter.

Mr. FORAKER. I expect he did, but when I look at the correspondence at the time I think it flatly contradicts it.

Senator SIMMONS. That would seem to be a disagreement between you and him?

Mr. FORAKER. It is a disagreement between Mr. Choate and myself; that is all I claim. I am entitled to my opinion as well as he to his. His correspondence was not before me at the time when the treaty was ratified.

Now, I want to make another suggestion: If, as Mr. Choate says, these rules for the neutralization of the canal included that first paragraph, which is a mere declaration of right of equality to all those who shall use the canal, if he claims that is applicable to us, I call your attention to the fact that that applies only to those who observe the rules. Now, we make the rules. If we do not observe. them ourselves, do we lose the right to the canal, to use it? It necessarily follows that England would lose the right to use the canal under that provision if she did not observe the rules, as would France, Germany, and every other country, but would we lose it? That is a test no man can apply and answer affirmatively, and that shows conclusively, I think, that it was not intended to apply to us.

There is a confusion about the word "neutralization." It does not mean equality of tolls. Mr. Choate points that out in this letter; points out that the principle of neutralization in the eighth paragraph of the Clayton-Bulwer treaty is found, when the paragraph is read, to relate only to the protection which England and

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the United States were to give to the canal then to be built—a private canal-and that it has no application after the United States becomes the sole protector, as we were proposing to make it, and did make it.

Senator BRANDEGEE. If that is so, it seems to me a queer situation. The treaty provides, in Article III, that the United States adopts as a basis of the neutralization of such ship canal the following rules, the first of which says:

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.

Mr. FORAKER. That is not a rule, as I contend. It is a declaration of a right.

Senator BRANDEGEE. It is labeled as a rule here.

Mr. FORAKER. No; the rules are immediately following that. That is the declaration of the rights that shall be acquired by the observance of the rules which follow.

Senator BRANDEGEE. On page 22, if you will look at the document here, entitled "Canal treaties," it states, article 3: "The United States adopts, as the basis of the neutralization of such ship canal, the following rules." Then there is the first rule. That is one of the rules.

Mr. FORAKER. Yes.

Senator BRANDEGEE. No. 1-there are six of them. The first is that "The canal shall be free and open to the vessels of commerce and war of all nations observing these rules."

Mr. FORAKER. Observing these rules. Now, suppose

Senator BRANDEGEE. This is the first rule. It continues: "On terms of entire equality."

Mr. FORAKER. Supposing the United States now having adopted certain rules that it required everybody using the canal to observe should herself violate the rules or refuse to observe them, would it lose her control of the canal?

Senator BRANDEGEE. Certainly not.

Mr. FORAKER. Read the next paragraph. There are two paragraphs in that No. 1. The first, I say, declares what rights shall be acquired by observing the rules. What are the rules? Read the second paragraph; that is the first rule.

Senator BRANDEGEE. I will read the whole of the first paragraph. Mr. FORAKER. No; I do not want to ask the Senator to do that. Senator BRANDEGEE. Then I will do what you ask me, and read the second paragraph of the first rule.

Mr. FORAKER. What you call the first rule.

Senator BRANDEGEE. That is what I will do.

Mr. FORAKER. The first is a declaration of the rights another nation shall acquire as to its vessels in our canal.

Senator BRANDEGEE. I think you are wrong about that. So I will read it and let the record show. The first rule referred to is this: The canal shall be free and open to the vessels of commerce and war of all nations observing these rules, on terms of entire equality, so that there shall be no discrim ination against any such nation, or its citizens and subjects, in respect of the conditions or charges of traffic or otherwise. Such conditions and charges of traffic shall be just and equitable.

Is that what you refer to as the second paragraph?

Mr. FORAKER. Yes; I say that paragraph refers to the right which another nation can acquire with respect to our canal.

Senator BRANDEGEE. I have read the whole of the first rule.

Mr. FORAKER. I mean the second paragraph. You have read only half of it.

Senator BRANDEGEE. What page are you reading from?

Mr. FORAKER. I am reading from page 21.

Senator BRANDEGEE. I am reading from page 22.

Mr. FORAKER. Let us see what the trouble is? You have not the same print, I see.

Senator BRANDEGEE. I am reading from Senate Document No. 456, "Canal treaties."

Mr. FORAKER. I am reading from document No. 85.

Senator BRANDEGEE. Are you reading from the second treaty?

Mr. FORAKER. Yes; I am reading from the second treaty. It reads as follows. If you will let me see your print, Senator, I can see in a moment whether they are the same. I see it is differently numbered.

What I want to call your attention to is that this first rule, as they have it numbered here, was the mere declaration of a right that may be acquired and how it may be acquired; by observing the rules. What are the rules? They proceed to state them, and they are rulesI call attention to that particularly that have relation to the neutralization of the canal. That is what it says in the preamble you read, that this shall be the basis for neutralization. Rules, therefore, would be expected following such a declaration as that which had relation to war and the conditions of war, and that is exactly what the following rules are.

Senator BRANDEGEE. What I want to call your attention to is that neutralization as used in these treaties is not limited simply to the question of such neutrality as technically belongs to a state of war. All the way through the treaties it is not limited to that, but it is a word which includes equality, and so appears in the cor respondence all the way through, and the fact that the first part of Article 3 states that as the basis of the neutralization of the canal it adopts the following rules, and then enumerates in the very first rule that one of the bases of neutralization is that it shall be free and open on terms of entire equality, confirms me in my opinion that neutralization as used in these treaties means something more than freedom from attack during war.

Mr. FORAKER. I am familiar with that argument, and that argument must be sustained in order to have that rule made applicable to the United States, for every rule that is adopted and given here with reference to neutralization has relation to the primary meaning of neutralization: relation to a condition of war. And inasmuch as that when rightly construed is only a declaration of a right to be acquired, I do not regard it as one of the rules for neutralization. Neutralization does not mean equality of treatment of other people. It simply means our water shall be a neutral water that everybody can come into provided they comply with the rules we prescribe, and observe them. Would we be driven out-I want somebody to answer that question-would we lose a right to use our canal if we ourselves did not observe the rules we prescribed?

Senator BRANDEGEE. No; I do not think so. I do not think anybody believes so.

Mr. FORAKER. Any other nation would, would it not?
Senator BRANDEGEE. That may be.

Mr. FORAKER. Then there would be a discrimination there.

Senator BRANDEGEE. I do not think that the owner of the canal if he violated the rule would be driven out. I do not see that that would pass the ownership or the title to anybody else.

Mr. FORAKER. But I mean if it were technically and strictly construed and applied, that would necessarily be the result of it, because if we did not observe the rules ourselves we would lose the right if we were included.

Senator BRANDEGEE. The result would, then, be so absurd as to prevent the acceptation of the theory.

Mr. FORAKER. I think it would be absurd, but I do not think it is one whit more absurd than the idea that we can not use the canal as we see fit. Can we not pass a revenue cutter through there without rendering an account to Great Britain?

Senator BRANDEGEE. I think we can pass all our war vessels through without rendering an account to Great Britain.

Mr. FORAKER. A revenue cutter is not a war vessel, is it?

Senator BRANDEGEE. It is connected with the Government. It is a Government function.

Mr. FORAKER. Upon what theory? This applies to vessels of war as well as vessels of commerce.

Senator BRANDEGEE. The rules referred to in article 3 are substantially as embodied in the Convention of Constantinople, and in my opinion refer to equality of treatment, the same equality of treatment as exists in the Suez Canal.

Mr. FORAKER. Did the rules adopted by the Convention of Constantinople, from which these are substantially adopted, apply to the owner of the Suez Canal? They are utterly inapplicable, and nobody ever pretended they had any application to the owner of the Suez Canal, a private corporation. So it is that our literature on this subject is full of such references to sustain your idea, but this fact is lost sight of in using them, that they had reference to a canal to be built by private capital, by a private corporation, like the Maritime Canal to be built at Nicaragua was. I saw in looking through the record last night that a witness testified here a day or two ago about what Henry Clay said about a canal that was to be built in 1825 that was to cost $5,000,000, to be built by private individuals and as a money-making venture. That has no application to this discussion After the Oregon sailed around the Horn we turned a new leaf.

We resolved to build a canal, and instead of it being necessarily by private capital, we would build it by the Government, if we saw fit, and nobody had an idea that it would be built by anybody but the Government, in connection with all this negotiation and the ratifica tion of this treaty. We never contemplated there would be any private capital coming forward to build the canal. But the language is there, and it might have been built by private capital. But all the talk from that time on was about a canal to be built by the Govern ment, and the primary purpose of it was to be not a money-making venture but a national defense enterprise.

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