from the Foreign Relations Committee that the Hay-Pauncefote treaty would not prohibit the free use of the canal by Amercian vessels, or if it had been this treaty never would have passed the Senate. Will you please confirm this statement of Mr. Skinner by wire?

His answer is:

Senator JAMES A. O'GORMAN, Washington, D. C.:

JAS. A. O'GORMAN.

SPOKANE, WASH., April 22, 1914.

Mr. Skinner's statement substantially correct. I would not speak positively after so long a time and in the absence of any record, but my recollection is that the spokesman for the committee in charge deprecated the Bard amendment as unnecessary in view of the terms of the treaty. I am sure, from my recollection of the temper of the Senate

And this confirms your view, Senator

that the treaty would not have been ratified if Senators had imagined that it limited the United States in the use to which it might put the canal for its own purposes.

Mr. FORAKER. I fully agree with that. I said awhile ago I did not think the treaty would have had 10 votes if that idea had prevailed in the Senate. Of course, that is only a guess.

The CHAIRMAN. Your attention has been called to Article XVIII of the treaty with Panama-between Panama and the United States-in which it is stated substantially that the grant made by Panama to the United States of the territory conveyed to the United States will be used for the purpose of a canal pursuant to the terms of the HayPauncefote treaty. Of course, you recognize that that treaty between the Republic of Panama and the Republic of the United States could not impair any rights that Great Britain already had under the Hay-Pauncefote treaty, and I will ask whether it is not your view as a lawyer that inasmuch as Great Britain was a stranger to that treaty between Panama and the United States, and as her rights could not be impaired, they could not be enlarged-is that your opinion?

Mr. FORAKER. That is my opinion. I think that is a very clear statement of a self-answering proposition.

The CHAIRMAN. Does it indicate and I will not ask you anything more than this--that when the United States received this grant from the Republic of Panama the United States indicated by the use of this language the general purpose for which the United States intended using the Canal Zone?

Mr. FORAKER. That is all, except it indicates that the United States supposed she had a right to give her the privilege she was intending to extend to her.

The CHAIRMAN. One more question. You have been asked by Senator Simmons some questions predicated upon the assumption that Panama insisted upon this provision.

Mr. FORAKER. Yes.

The CHAIRMAN. Now, having in mind the condition that existed about the time the Panama Canal treaty was adopted, is it your impression that the infant Republic was insisting upon anything?

Mr. FORAKER. I have no recollection of any very serious insistence on her part except of recognition and as much money as we might be willing to give her and I do not say that disrespectfully. She was trying, of course, to drive a good bargain, as Colombia had been doing before.

The CHAIRMAN. Senator Simmons has asked what significance you attach to the circumstance that in this treaty between Panama and the United States, Panama did not insist upon the exemption of her coastwise vessels from the payment of tolls. Do you know what vessels, if any, the Republic of Panama had at that time, or has now? Mr. FORAKER. I came very near answering Senator Simmons-it was in my mind to do so-that I do not think Panama was overlooking any important interest when she was silent about her coastwise vessels. She was only a few months old and had perhaps not acquired any vessels of either commerce or war, but she was threatened with war by Colombia, and I suppose she anticipated having some kind of war veessls which she wanted to pass quickly through the canal and we would have no objection, if they would fight away from there, how much they saw fit to fight.

The CHAIRMAN. Notwithstanding the various statements of Senators and others, to which your attention has been directed, you are clear in your mind that this treaty would never have been adopted or ratified by the United States Senate if it had believed or understood that the rights of the United States with respect to the use of that canal by her own vessels was not free and untrammeled from the influence of any other power on earth?

Mr. FORAKER. I have no doubt whatever in my mind on that point. The CHAIRMAN. That is all.

Mr. FORAKER. Still, I do not know how any other Senator might have felt. Senators sometimes change their views; but I know, so far as I could observe, there was a practical unanimity of opinion on that subject.

Senator WALSH. In connection with the significance that is to be attributed to the action of the Senate in the rejection of the Bard amendment to the first treaty, I want to invite the attention of the committee to the fact that the treaty now in force is subject, if that contention is correct, to the application of the principles sought to be applied, because when the treaty now in effect was under consideration by the Senate Senator Culberson offered the following amend

ment:

It is agreed, however, that none of the immediately foregoing conditions and stipu lations in sections numbered 1, 2, 3, 4, and 5 of this article shall apply to measures which the United States may find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order.

That amendment was rejected by a vote of 15 yeas to 62 nays. On the line of argument pursued by some gentlemen before this committee and elsewhere, the United States has no right to take such. measures as it may deem necessary with reference to the canal for the purpose of securing by its own forces the defense of the United States.

Mr. FORAKER. Do you ask me a question?

Senator WALSH. No; I just call attention to that.

The CHAIRMAN. Of course, it is conceded, Senator Walsh, that notwithstanding that we have fortified the canal without provoking any objection from Great Britain.

Senator WALSH. I apprehend it would be contended with reference to that amendment that it was rejected because it was entirely

unnecessary.

Mr. FORAKER. It was, I was about to say, that Mr. Davis's amendment-and it is the same that Mr. Culberson offered-was intended as an offset to the prohibition against fortifying, in large part; that was its purpose, and when we struck out the prohibition against fortification there was no necessity for putting in the Davis amendment, or anything else, and therefore we left that also, although the Senate had agreed to it; and therefore when Senator Culberson offered it, the treaty being silent on the subject of fortifying the canal and providing that we should have the rights of ownership, we did not think it necessary to adopt that amendment, although we had adopted it to the first Hay-Pauncefote treaty.

Senator WALSH. Senator Simmons, I suppose, would take the same view with respect to that amendment.

Senator SIMMONS. I was not listening very attentively. Senator Foraker, the chairman of the committee asked you with reference to the Panama coastwise trade, and you said it was a new republic and had no coastwise trade.

Mr. FORAKER. I do not want to say that absolutely. I suppose it did not have.

Senator SIMMONS. It had no coastwise vessels; it also had no vessels of war either.

Mr. FORAKER. No; but it had a probability of needing some in the near future.

Senator SIMMONS. Is there not a probability of developing a coastwise commerce in years to come?

Mr. FORAKER. Yes, sir; I suppose there is.

Senator SIMMONS. Which it was the national desire to safeguard and to protect, and is not that emphasized by the fact that the two important cities of that country were located one at the west end and the other at the east end of the canal, and if the development that the world looks for from the construction of this canal shall follow may it not be that in the years to come the coastwise traffic of Panama, especially that moving between the cities of the eastern terminal and the western terminal, may become very considerable and the right to pass her coastwise vessels through that canal free of toll be a very important consideration?

Mr. FORAKER. Yos, sir; I think so. I think all that is true; but let me add that the very reason we refused to give her exemption for her coastwise vessels-if it was a question that we considered at all; it might have been, but I have no recollection about it-that we wanted this canal to be as near self-sustaining as possible; and we wanted to collect from her and from everybody else on vessels of commerce, and for that reason we were ready to let her war vessels go through, for there could not be very many of them, but not the coastwise vessels.

Senator SIMMONS. If at the same time we wanted to get that revenue and make it self-sustaining, why should we not require the interests in this country-already a monopoly-engaged in our coastwise trade to contribute something for that?

Mr. FORAKER. That raises a question of policy, and you and I are not as far apart on that as we are on the question of power.

The CHAIRMAN. The examination of Senator Foraker is now completed. Senator Foraker, the committee feels very much indebted

to you for your information as well as your patience. The committee will now take a recess until 2.30 p. m.

(Accordingly, at 1.50 o'clock p. m., the committee took a recess until 2.30 o'clock p. m.)

[Record continued in next number.]

THE PANAMA CANAL AND OUR PLIGHTED FAITH.

By N. I. STONE.

Formerly chief statistician of the Tariff Board; member of the Joint German-American Tariff Commission of 1906-7; commercial attaché of the United States delegation to the Pan-American Congress at Rio Janeiro, etc.

1

There is one phase of the international question raised by our canal-toll legislation which has been almost entirely overlooked in the controversy raging over the question. With the exception of the speech of Senator Burton, which contained a scholarly review of the history of our treaty with foreign nations affecting our navigation policy, practically all the discussion has centered about the interpretation of the Hay-Pauncefote and, to a minor extent, of the Clayton-Bulwer treaties. These treaties have received almost exclusive consideration in the controversy. Strange to say, neither side has taken notice of our general treaties of commerce and navigation, which, as will be shown here, are as much applicable to the case as the HayPauncefote treaty in the case of Great Britain, and even more so in the case of other countries with which we have most-favored-nation treaties.

THE ISSUES INVOLVED.

What are the main facts involved in the present dispute? When, in March, 1899, Congress adopted a resolution for the construction of the canal, we found ourselves powerless to proceed without the consent of Great Britain under the provision of article 1 of the Clayton-Bulwer treaty of 1850, which read:

"The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship canal: agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonize, or assume of xere se any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America."

In order to be able to construct, operate, and defend the canal and the territory that goes with it we had either to obtain Great Britain's consent to the abrogation of the Clayton-Bulwer treaty or to proceed in open violation of it, as advocated at the time by some people in and out of Congress. The Government chose the more honorable course, and Secretary Hay succeeded in negotiating the treaty which bears his name jointly with that of the then English ambassador to the United States. By the terms of the new treaty England waived her rights of control in the matter and gave us a free hand in Central America in return for this provision, among others: "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."

The controversy that has been going on in Congress and the press has centered about the interpretation of the words "all nations" in the provision just quoted. Advocates of equal tolls to American and foreign vessels claim that "all nations" includes the United States, while those in favor of freedom from tolls for American vessels insist that the United States, being the owner of the canal, could not be included in the expression "all nations."

To this purely grammatical argument, the opponents of free ships oppose the historical fact that at the time of the consideration of the Hay-Pauncefote treaty in the Senate a substitute to the now disputed provision was offered by Senator Bard, of · California, expressly reserving to the United States "the right

43756-14

1 Congressional Record, July 17, 1912, first print, p. 9720.

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to dis

criminate in respect of charges for traffic in favor of vessels of its own citizens engaged in coastwise trade." This substitute, which, if adopted by the Senate and accepted by Great Britain, would have left no room for the present controversy, was voted down by the overwhelming vote of 43 to 27.

But even this incontrovertible fact fails to move the advocates of an indirect subsidy to American shipping. It is now seriously suggested that the Hay-Pauncefote treaty has either ceased to exist or can be terminated at will. Mr. Hannis Taylor, ex-minister to Spain, and regarded as an authority on international law, takes the ground that "the radical change wrought in conditions existing at the time of the making of the Hay-Pauncefote treaty by the transformation of the Canal Zone from foreign territory into domestic territory of the United States, beyond all question renders the treaty "voidable" at the instance of the United States under the principle of international law. "1 Mr. Taylor's view is accepted by many of the advocates of discrimination against foreign ships, who suggest that the Hay-Pauncefote treaty be formally abrogated. Assuming that Mr. Taylor is right in his contention that the treaty can be formally abrogated by us without the consent of England, it is clear that in the absence of any special treaty protecting the rights of foreign nations in the canal, their only recourse would be to the general treaties of commerce and navigation by which the treatment of their vessels in American waters is guarded on the basis of reciprocal treatment of American shipping in foreign waters. These treaties are so clear and emphatic in their provisions and are of such vast importance to our commerce that no discussion of the present controversy may be regarded complete which leaves them out of consideration.

OUR TREATIES OF COMMERCE AND NAVIGATION.

It is a curious historical coincidence that the first treaty of this kind which we succeeded in concluding, after more than a third of a century of fruitless effort, was with Great Britain. The treaty is nearly a century old, is still in force, and was put in effect in 1815, the year of the proclamation of the treaty of peace, the centennary of which the two nations are about to celebrate.

The treaty of Commerce and Navigation of 1815 marked a revolutionary departure from the principles hitherto governing maritime relations among nations. The radical innovation contained in article 11 read as follows:

"No higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those payable in the same ports by vessels of the United States; nor in the ports of any of his Brittannick Majesty's territories in Europe on the vessels of the United States than shall be payable in the same ports on British vessels."

The language is clear and unmistakable. The two nations are to treat each other's vessels not as they do those of the most favored nation but as their own. If Mr. Taylor is right and the Hay-Pauncefote treaty can be declared as no longer in force, then the Panama Canal and the harbors marking its terminals are "ports of the United States" and British vessels can not be subjected to higher charges and duties than our own vessels, any more than they are discriminated against in the ports of New York or Boston.

How did we ever come to consent to such a radical provision? Is it possible that our statesmen failed to see that Great Britain, being the greatest maritime nation on earth, would benefit by it to a much greater extent than we would? How is it that this provision has been overlooked in the discussions of the question? And, finally, why not repeal a treaty that contains so troublesome a proposition from which there seems to be no escape? These are some of the questions likely to be asked and deserving an answer.

The provision of article 11 was not smuggled in by the wily Britons while the provincial Yankees were not looking. On the contrary, it was carefully drawn and urged by the representatives of the United States, John Quincy Adams, Henry Clay, and Albert Gallatin, men towering high in the brilliant galaxy of American statesmen. Furthermore, the incorporation of this provision marked the triumph of American diplomacy after a third of a century of ceaseless effort. As early as 1776, when the Continental Congress, struggling for recognition for the revolting Colonies, drew up a draft of a treaty to be submitted to France, it embodied therein this tentative provision:

"ARTICLE 1. The subjects of the Most Christian King shall pay no other Duties or Imposts in the Ports, Havens, Roads, Countries, Islands, Cities, or Towns of the said United States, or any of them, than the Natives thereof, or any Commercial

I Washington Post, July 26, 1912.