Mr. FORAKER. If there had been a strenuous debate and that much of a vote cast for it, I might have thought, as you say, that that indicated a serious question on the subject. But the great majority of the Senate was of the opinion that the treaty was all right in that respect. That is my recollection.

Senator SIMMONS. Do you know the opinion of the majority of the Senators on that question as expressed in the vote on this amendment?

Mr. FORAKER. I have already said to you that I do not know anything about the opinion of any particular Senator, but that I have an impression on my mind that what was expressed was that it was unnecessary to put it in. I had a further objection which I had occasion to express long ago, that to specifiy in a treaty that our coastwise vessels might be exempted from tolls implied that our ships in foreign commerce could not be. I took the view that we could do as we pleased as to both, and exempt both if we wanted to. At the same time I was of the opinion that it was a debatable proposition whether it was good policy to exempt either class, and I said yesterday that I did not think if I had been in charge of the matter, had control of it, if my voice had been potent, that I would have exempted either class until the canal was profit paying. Then we could determine what we wanted to do. I am not thinking about the dollars and cents. It is a question of what our power is, and if President Wilson had said as good policy he thought we ought to repeal the exemption clause, I would not have felt like opposing it; I would have been satisfied with his judgment on the subject, in view of what he said. But when he put it on the ground that we did not have power to do what had been done, that made it a different sort of a proposition.

Senator SIMMONS. Here we find a record showing that there was an amendment expressly authorizing the United States to discriminate in favor of its coastwise trade, and we find 27 Senators voting for that proposition. There were 70 voted in all. Twenty-seven Senators is about two-fifths of the total number who voted. Now, Senator, you said that you thought it was also the opinion of the Committee on Foreign Relations that we had the right to discriminate in favor of our coastwise trade, or do anything we pleased with that canal with reference to the passage of our domestic commerce. I call your attention to the fact that upon that vote of the four Democrats on the Foreign Relations Committee, Senators Morgan, Daniel, Bacon, and Money, Senator Bacon having subsequently become the chairman of the Foreign Relations Committee-I call your attention to the fact that of those four Senators, Bacon, Daniel, and Money voted for that amendment. Now, would you say in view of that vote that these three of the Democratic members of that Foreign Relations Committee thought we clearly and undoubtedly had the right to exempt our coastwise traffic?

Mr. FORAKER. I think probably they thought we did not have the right in view of what I have seen stated in other connections.

Senator SIMMONS. And they were voting in order that the treaty might be amended so that we might get the right

Mr. FORAKER. I have never said anything that indicated that I thought all those 27 men voted otherwise than as they thought nec

essary to vote. I speak of Senator Peveridge only because the chairman informed us of what he had said yesterday.

Senator SIMMONS. Senator, upon the face of this record, when it appears that an amendment was offered to the treaty reserving to the United States the right to discriminate in favor of its own coastwise traffic, and that amendment is voted down by the Senateupon that record, without any explanation as to motives and purposes and intentions of Senators in passing those votes, upon that record would not the conclusion be irresistable, there being nothing before the mind to determine individual conclusions except that record, that a majority of the United States Senate did not favor discrimination in favor of coastwise traffic?

Mr. FORAKER. Not at all. I do not see how any man familiar with legislation, as I know the Senator from North Carolina is, can say that. Senator SIMMONS. I say leaving out all the history and taking just the bare record, who can say that?

Mr. FORAKER. I am taking just the bare record. Nobody knows better than the Senator that many amendments are voted down on bills and treaties on the theory that they are not needed; that they are otherwise provided for. There were half a dozen amendments offered and voted down, as shown by this record, and voted down for no other reason than that they were not thought necessary, as I now recollect it. I think somebody offered an amendment that we should have a right to fortify, and we voted that down, although we had taken great pains to reserve that right by simply saying nothing about it. The prohibition against fortification was put in the first HayPauncefote treaty because both contracting parties were of the opinion that without a prohibition we had the right, being the owners, to fortify. Then, when it was left out, that left us free.

Senator SIMMONS. We do not disagree about that, and it is not necessary for the purpose of the other questions I am going to ask you, because I want to get this straight as best I can. The discussiors upon that amendment were in executive session, were they not?

Mr. FORAKER. Unfortunately. There would not have been any trouble about it if they had been in open session.

Senator SIMMONS. They were in secret session, and they were not taken down stenographically?

Mr. FORAKER. No.

Senator SIMMONS. They were under the ban of secrecy?

Senator FORAKER. Yes, at the time.

Senator SIMMONS. Whatever knowledge you or I, if I had been in the Senate, or any other Senator, may have had as to the intent of Senators in casting their votes one way or the other, was a matter of information that existed in the breast of the individual Senator, was it not?

Mr. FORAKER. Yes.

Senator SIMMONS. Now, we were dealing with a question at that time in which the Government of England was the contracting party on the other side-was the other contracting party. Now, England under those conditions of secrecy as to the discussions and as to the intent of Senators, could look at this matter only in the light of the amendments and the vote upon the amendinents, could it not?

Mr. FORAKER. And by what was said by our representatives to England in an official capacity.

Senator SIMMONS. Our representatives to England in an official capacity did not hear the debate. They did not know the secret motives and intents of the Senators who voted for it. They had to construe that according to the bare, naked record, the amendment, and its effect upon the treaty?

Senator WALSH. Mr. Chairman, in this connection, I want to call the attention of the committee to the fact that the following amendment was likewise voted down:

Provided, Nothing herein contained shall prevent the United States from protecting said canal in any way it may deem necessary if the said United States shall construct said canal at its own expense.

That amendment was voted down by nays 44, and yeas 25. Accordingly, upon the same line of reasoning England would have a right to say that we believed under the treaty as it existed we did not have the right to protect the canal in any way we thought necessary in case we should construct it.

Senator SIMMONS. The only point I wished to get at, Senator, is to have your answer to the question if there is anything from which England could have gathered the intent and purpose of the United States Senate with reference to its action on this amendment except through the amendment itself, and the vote upon that amendment? Senator SHIELDS. Those amendments were offered in the secret executive session, and, of course, the record of that session is always

secret.

Senator SIMMONS. It always is.

Mr. FORAKER. It may have gotten out and been published. I am assuming that it was, that England knew about it, that we had rejected it. At the same time she refused, although she was getting that advantage, to accept the amendments we did make, and rejected the treaty, and did it in rather a curt way.

Senator SIMMONS. She yielded on all the amendments that you insisted upon, did she not?

Mr. FORAKER. She did in the second treaty.

Senator SIMMONS. That is what I am talking about.

Mr. FORAKER. And after she was notified that if she did not accept them we would abolish the Clayton-Bulwer treaty altogether. Senator SIMMONS. Where is the notice that was given?

Mr. FORAKER. Through our ambassador.

Senator SIMMONS. I had not heard of that before.

Mr. FORAKER. I told the committee yesterday that we discussed that matter. I did discuss it with Mr. Hay, and the periodicals and newspapers of this country were publishing the fact. I did not remember, until I saw it only the day before yesterday in the library, that Senator Lodge had publicly announced that he would offer a resolution denouncing the Clayton-Bulwer treaty if they did not agree to a treaty.

Senator SIMMONS. Do you mean she had been officially notified? Mr. FORAKER. I only meant that she had been unofficially notified through the newspapers and otherwise. I did not mean an official

notice.

Senator SIMMONS. One more question, and then I will be through. I understood you a little while ago in reply to Senator Brandegee to say that no other nation except England had any contractual interest in the canal.

Mr. FORAKER. It was intended that no other nation should have. Senator SIMMONS. It was intended that no other nation should have?

Mr. FORAKER. Mr. Choate said that. I quoted him as saying that, and as saying that to Lord Lansdowne.

Senator SIMMONS. Do you not think in view of the fact that the Panama Canal treaty through which we acquired our jurisdiction over the territory, and our right to construct the canal do you not regard the fact that that treaty as a condition to our title required us to enter into a treaty agreement which is just as broad and comprehensive as our treaty agreement with Great Britain with reference to the uses of the canal, do you not think that that gives all the nations of the earth an equal right?

Mr. FORAKER. That is a part of the res gestae, but my recollection of that treaty is-I have not read it in years; I have not seen it; I have seen some reference to it as this proceeding has been going on in the newspapers-my recollection of it is that it specifically provided we might fortify the canal, and then it specifically provided that the vessels of Panama might use the canal free of charge. That would be a discrimination and utterly inconsistent with the British contention that we have no right to discriminate.

Senator SIMMONS. They did specifically provide that the Republic of Panama should have the right to pass its ships of war, vessels of war, through the canal free; that they insisted on as a condition of granting us the title. That is my understanding of it, and it seems to be Mr. Choate's that that right was reserved to the United States, but Panama did not make it a condition precedent to title that she should be allowed to pass her vessels engaged in coastwise trade through the canal; Panama was giving up the right to build a canal through her territory with one of her main cities at one end of it and the other most important city at the other end of it, and while she stipulated for exemption of tolls for her war vessels, which she understood we also had stipulated for ourselves, she did not insist on, nor was she given exemption of tolls on her merchant vessels engaged in coastwise trade.

Mr. FORAKER. But the inhibition in this treaty applies to war vessels as well as vessels of commerce, does it not?

Senator SIMMONS. I am not speaking about our inhibitions. I am speaking about the inhibitions with reference to Panama, and I am going to ask you this question: Panama was furnishing us the territory through which we should build this canal. It was giving us a qualified sovereignty in that territory. It was, however, reserving rights in it, and she required us not only to pay a price for it, but she required us to pay an annual rental of $250,000 a year for it. Now whatever rights she insisted upon in that treaty with respect to the reserve with respect to herself, were such rights as she insisted upon as conditions to granting us the title. We could not have gone on with it unless we complied with her requirements of reservations in her interests. Do you think if the Republic of Panama had supposed that we had reserved to ourselves the right to pass our coastwise trade through this canal over her territory, which she was ceding to us, free of toll, that she would not have insisted upon the same rights as to her coastwise traffic, and when

she failed to do it, do you not regard that as a construction on the part of the Government of the Republic of Panama that we had not reserved that right to ourselves, and did not have that right, because as she was giving us the territory to build it, do you not suppose that she would reserve to herself all the rights we thought we were entitled to?

Mr. FORAKER. I can not tell what I would think in any merely suppositious case. I know what was done. I know that if we were included in the term "all nations," we are prohibited from using the canal for either vessels of war or vessels of commerce, except on terms of equality with all other nations, and if we are, when Panama took from us as a consideration the right to use the canal for her war vessels, free of tolls, she was taking something we had no right to give, and I do not believe the United States Government would have undertaken to give to Panama a right she did not feel she was entitled to give her. If we could not exercise that right ourselves, how could we give it to her, even as part payment for the cession of her territory? That is the view I take of it. It is one of those things you can argue about all day.

Senator SIMMONS. I want to read to you now the provision in the Panama treaty, and I want to ask you whether you agree with me or agree that it reserves to all nations using this canal the identical rights that are provided in the Hay-Pauncefote treaty for other nations and makes it distinctively an international highway? It is Article XVIII of the Panama Canal treaty, as follows:

ART. XVIII. The canal, when constructed, and the entrances thereto shall be neutral in perpetuity, and shall be opened upon the terms provided for by section 1 of Article III of, and in conformity with all the stipulations of, the treaty entered into by the Governments of the United States and Great Britain on November 18, 1901.

That was the IIay-Pauncefote treaty which was ratified, and section. 1, Article III, is the section which gives entire equality of treatment to the vessels of all nations without discrimination against the citizens or subjects of any country. Does not that section of the Panama treaty write into that treaty making it a condition to our title, and therefore an obligation that we can never throw off; we can never renounce it, because it is a condition of our title? Does not that make the waterway an international highway, open upon equal terms to all nations upon the earth and carry out the policy, as Senator Cushman Davis outlined it, of this Government with reference to the construction of an isthmian canal?

Mr. FORAKER. I do not so interpret it and did not so understand it at the time the Senate ratified it. I think the provision you first called my attention to, that war vessels should be allowed to go through without payment of any tolls, was conclusive evidence that both Panama and the United States understood that we had a right to pass vessels through if we wanted to, and that would be my answer to that, except only this, I would add that that speaks of neutralizing the canal, and I feel compelled to repeat again that we must regard this difference, this confusion of ideas respecting the terms "equality of tolls" and "neutralization." Neutralization does not mean anything ordinarily in its primary meaning except that it pertains to the conditions of war.

Senator SIMMONS. Senator, I do not think you answer my question, if you will pardon me. I wanted to know if you did not think that