that section of the Panama treaty wrote into that treaty the same requirements with regard to equality of treatment of vessels, so as not to discriminate as to citizens of other countries, as is contained in the Hay-Pauncefote treaty; and if you did not think that all the nations of the earth became the beneficiaries of the trusteeship which was created on the part of the United States by that agreement with Panama, from whom we got our title to build-got the land upon which we would build?

Mr. FORAKER. I said I thought that was a debatable proposition. I understand how you can contend for it, but it seems to me your contention is conclusively refuted by the other fact in the same treaty, and both these treaties; consequently in the other treaty we did provide she might send her vessels through without charge, which we could not do for her vessels if we could not do it for our own.

Senator SIMMONS. You will admit this, will you not, that other nations of the world under the clause of the Panama treaty get the same right that Great Britain got in the Hay-Pauncefote treaty?

Mr. FORAKER. I think so. I think Great Britain and other nations stand exactly alike, and none of them stand as we stand. That is to say, just like the port of New York; during the time of the war between Japan and Russia some of their ships came into that port. I remember we had some trouble on account of some of their ships coming into our ports; being neutral ports, and we being a neutral power, having nothing to do with their controversy, we were bound to treat their ships exactly alike. That is what neturality means; but we were not bound to treat them as we treated our own.

Senator SIMMONS. Do you not think that provision in the Panama treaty makes the United States a trustee in the construction of this canal to the extent that we are to see that all the nations of the earth get fair and equal treatment in their passage through that waterway! Mr. FORAKER. I think we obligated ourselves and you can call us a trustee in that respect or not, as you see fit-to prescribe rules for the use of that canal, for the neutralization of it, and that any nation having vessels of war or commerce desiring to use it can use it by complying with these rules, and not otherwise; and I do not think we are prohibited from using the canal if we fail to obey our own rules; but your contention, I think, carried to its legitimate consequences, would have that result.

Senator SIMMONS. I am through with the witness.

Senator OWEN. In the first draft of the Hay-Pauncefote treaty Article III provides that the high contracting parties will immediately upon the exchange of ratification of this convention bring it to the notice of the other powers and invite them to adhere to it. That was struck out by the Senate because no contractual right was desired to be given to other nations. Is that correct?

Mr. FORAKER. That is correct, as I understand it. It was on my own motion it was struck out. I offered that amendment, as this record shows. I see, looking over this record, that Senator Beveridge offered the same amendment, but the record recites that it was my amendment that it was stricken out upon. That does not make any difference. I mention it only to show that I was not the only one who was apparently opposed to the extent of offering an amendment that it ought to be stricken out.

Senator OWEN. I ask you if the words in the second draft of the treaty, qualifying nations in the first rule adopted under Article III, the words "observing these rules" were not inserted in order to impose the conditions of the route upon the other nations without giving them a contractual right?

Mr. FORAKER. For that purpose expressly, as stated by Mr. Choate in the extracts I read from his correspondence this morning. Senator OWEN. That, then, is your interpretation of the insertion of the words "observing these rules"?

Mr. FORAKER. Yes; in Mr. Hay's draft here he had it all nations which shall agree to observe these rules, or such nations as agree some such expression as that, and Mr. Choate requested those go out, because if they agreed they would become possessed of a contractual right, and I cited that to show that he knew exactly what we were striving to do, to cut off all contractual right in our canal and let the United States be the sole owner.

Senator OWEN. Those words being inserted therefore to prevent other nations having a contractual right, you think now that the term "observing these rules" should be construed to exclude the United States as one of the parties observing these rules?

Mr. FORAKER. I say that if your contention be correct-I mean the opposition's contention be correct-that the United States is included among the "all nations," then the result of a failure on the part of the United States to observe its own rules would defeat its right to use the canal, for only such nations-all nations-and yet only such nations as observe these rules may use the canal.

Senator OWEN. And where those words were inserted to prevent other nations getting a contractual right, you now think we should interpret those words to mean that the United States itself would not be included in the term "all nations"?

Mr. FORAKER. Certainly I do. I think it would be an absurd consequence to say that the United States may prescribe rules and all nations shall be required to observe the rules and the United States is one of the nations, and that if the United States failed to obey the rules she herself prescribed, she should then go on to use the canal, when we would not allow any other nation to do it. Senator OWEN. You would not expect the United States to observe these rules, having prescribed them?

Mr. FORAKER. I would expect the United States to observe all rules applicable to her, but I would not expect the United States to lose her right to use the canal if she did not. In other words, that clause had reference to other nations except the United States. Senator OWEN. Except for these words, "observe these rules," then ships belonging to citizens of the United States would have to pay the same tolls, would they not?

Mr. FORAKER. Well, perhaps we would. I do not know.

Senator OWEN. I understood that to be your interpretation in your previous cross-examination.

Mr. FORAKER. No; what I said was that if the United States were included in this prohibition, then her failure to observe her own rules might be urged as a reason why she should not use her own canal. There may be many conditions in which there would be a variation from that general position.

Senator OWEN. I understand that you have taken the position that the term "observing these rules" excludes the United States from the application of rule 1 of Article III because the United States does not observe these rules of neutrality which it imposes?

Mr. FORAKER. I did not say that. If I did, I was very unfortuate in my expression. I was not intending to say that the United States would not obey the rules she would prescribe applicable to her, but I was intending to say that the United States has an unqualified right of ownership, among which is the right to prescribe on what terms other people shall be allowed to use our canal, and that the common sense of the proposition is that the rules she is prescribing for nations to observe in the use of our canal were rules that would not defeat her right to use her own canal if she saw fit not to observe them in some respect. I think she ought to observe them if applicable for her. As the rules of the treaty are not-in part, at least

Senator OWEN. I should not like you to draw the inference that I did not think the United States has not sovereignty over the canal and ownership, because I fully agree with that, but I think the ownership was acquired upon the terms of the Panama Canal treaty, the eighth article of which prescribes that the vessels paying toll shall come within rule 1 of Article III, and therefore it is important to ascertain what the meaning of rule 1, Article III, really is.

Mr. FORAKER. I think the United States had the right to provide in the making of the treaty with Panama that her vessels should go through absolutely free if it wanted to. It is our canal. I will qualify that, I will recall it. She would be prohibited from doing that, possibly, under the provision that the ships of all nations using the canal would use it on terms of entire equality. But what I will say is that the United States clearly had the right to do with the canal as she saw fit

Senator OWEN. But what she saw fit to do was to say to Panama in acquiring this title, in the language of article 18:

The canal, when constructed, and the entrances thereto shall be neutral in perpe tuity, and shall be opened upon the terms provided for by section 1 of article 3 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.

So that in exercising sovereignty and ownership we bound ourselves by our own voluntary act, in acquiring the canal, to observe all the stipulations of the Panama treaty, did we not?

Mr. FORAKER. Perhaps we did, Senator. I am not questioning but what the United States should observe the rules it prescribed applicable to us, but I am only suggesting what would result if she did not see fit to observe them. Now, what I say

Senator OWEN. I am asking you the question; I am not asking as to the possibility of other things but asking the question whether or not we did this by the Panama treaty which I have just read?

Mr. FORAKER. Well, we did whatever is recited in the Panama treaty, but we did something else that refutes the contention you claim when we also provided that her vessels of war should go through exempt from the payment of tolls. That was one thing we did as much as the other.

Senator OWEN. That was part of the purchase price.

Mr. FORAKER. That was part of the purchase price, but we did not have a right to pay with something we did not have. We thought we had that right.

Senator OWEN. She had that and she refused to relinquish it.

Mr. FORAKER. I think we could have gotten the zone from her for the $10,000,000.

Senator OWEN. You say we did not pay her with something we did not have. We did not have the right to go across the Panama Isthmus ?

Mr. FORAKER. Is there not another treaty called the Hay-Herran treaty with Colombia in which we did practically the same thing for Colombia?

Senator SIMMONS. Colombia did not ratify it.

Mr. FORAKER. We certainly ratified it; that is my recollection of it. I remember the discussion of that. We gave to her the right to pass her ships through the canal, as I remember it, free of tolls.

Senator OWEN. But coming back to the making of the first rule of article 3, I call attention to the fact which I would like you to explain, that you yourself, as a Member of the Senate, ratified the first draft of the Hay-Pauncefote treaty.

Mr. FORAKER. The amendment

Senator OWEN. Just a moment. In which was contained the qualifying phrase "observing the rules?"

Mr. FORAKER. That is true; but we thought of a good many things after we had had the discussion over the first treaty that we did not think of at the time we had that discussion, and our negotiators thought of some things, and Mr. Choate shows by his correspondence that was put in the record this morning that he had quite a discussion with Lord Lansdowne over the exact language that ought to be used.

Senator OWEN. But when the United States, with practical unanimity, approved the record draft of the Hay-Pauncefote treaty containing the words "observing these rules," as specified by the United States by rule 1 of Article III, or Article II in the first draft, the authorities of England had a right to believe that we did not intend to exclude the ships of the United States. Is that not a justifiable

conclusion?

Mr. FORAKER. No, sir; I do not undertake to say, and I would not undertake to speak for them, except as I may understand what they put down in writing. I can not tell what they may have thought, and I am not supposed to know.

Senator OWEN. Would you infer that it is a matter of indifference what they thought?

Mr. FORAKER. Certainly not; we were anxiously trying to reach an agreement with them. We said to them, The Clayton-Bulwer treaty ought no longer to continue in force. We wanted it out of the way and so with respect to every other question.

Senator OWEN. You moved to have it superseded in the first draft of the bill?

Mr. FORAKER. Yes, sir; I did.

Senator OWEN. That was one of the amendments?

Mr. FORAKER. That was one of the amendments.

Senator OWEN. And yet you did not insist, even in the first draft or second draft, that it should be entirely superseded, because you

expressly retained both in the first draft and second draft and in the preamble the language that while the Clayton-Bulwer treaty should be superseded, nevertheless it was to be "without impairing the general principle of neutralization established in Article 8 of that convention;" and when President Roosevelt, on the 4th of December, 1901, transinitted this new Hay-Pauncefote treaty to the Senate he expressly used the terms that this new agreement was adopted without impairing the general principle of neutralization established in article 8 of that convention, and he transmitted at the same time a letter from John Hay, dated the 2d of December, 1901, in which John Hay says that this is not to impair the general principle of neutralization established in article 8 of that convention; and the convention itself in its preamble says, "without impairing the general principle of neutralization established in article 8 of that convention." Now, you left that in the treaty?

Mr. FORAKER. Certainly, and we are standing by it now loyally But what does neutralization mean? It does not mean equality of tolls. Neutralization, as I have been trying to explain, has reference to a condition of war, prohibition against blockading; prohibition against landing munitions of war; prohibition against fortifying, and all that sort of thing. The first clause that you call my attention to is not a rule at all. It simply prescribes the conditions on which a right which it defines may be acquired, namely, the right to use our canal. That is one of the rules. The rules of neutralization follow. They all have reference to war, or acts of war, acts of hostility

Senator OWEN. I call your attention to the fact that neutralization, prescribed in Article VIII, does not refer to war. It refers to commerce. It refers to the rights of citizens of other nations to have the same right to take their ships through on equal tolls, and I read it in the record for refreshing your memory.

Mr. FORAKER. I know what you refer to

Senator OWEN. I would like to put this in the record.

Mr. FORAKER. You put it in yesterday in your question.

Senator OWEN. But I want to put it in in connection with your comment, because it will make it more clear.

Mr. FORAKER. Then emphasize, when you come to it, that the undertaking under rule 8 is that Great Britain and the United States will jointly protect the rights of the people who are to build this canal, a private canal to be privately owned, not operated by any particular Government. That shows the pertinency of what I read from Mr. Choate this morning, which is the whole basis of our negotiation. Senator OWEN. Article VIII recites:

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, they hereby agree to extend their protection, by treaty stipulstions, to any other practicable communications, whether by canal or railway, across the isthmus which connects North and South America, and especially to the interoceanic communications, should the same prove to be practicable, whether by canal or railway, which are now proposed to be established by the way of Tehuantepec or Panama. In granting, however, their joint protection to any such canals or railways as are by this article specified, it is always understood by the United States and Great Britain that the parties constructing or owning the same shall impose no other charges or conditions of traffic thereupon than the aforesaid Governments shall approve of as just and equitable; and 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.