tioned. The moment you condition our relationship to this territory in any way whatever it ceases to be sovereign.

Senator BRANDEGEE. They were attempting to reserve their sovereignty subject to the use for canal purposes, were they not?

Mr. COCKRAN. I will not discuss attempts; I am arguing now the actual condition that has been created. Either we are sovereign or we are not. If we are sovereign there can be no condition imposed on us. No treaty or anything else can limit the sovereign in exercising his own sovereignty. He can limit himself in his relations with another sovereignty, concerning something that does not belong to either sovereignty itself. For that reason this treaty was perfectly valid when it concerned protection of a canal to be constructed in alien territory. It might have been valid if this Government had constructed the canal with its own money in alien territory. This Government might then, for all practical purposes, have been considered a corporation constructing a canal. Some such relationship as that may be conceivable, although it is absolutely without precedent in the experience of mankind. But when that territory became our own, then we became sovereign. If we are not sovereign what power is sovereign over it?

Senator BRANDEGEE. How did the territory become our own?
Mr. COCKRAN. By gift perhaps. It does not make the least differ-

ence.

We might have seized it. We might have found it vacant and occupied it. It was ceded to us without any condition whatever. If there were a condition imposed on it, if Panama had said unless you build a canal this territory will come back to us, there might be strong moral reasons for regarding the condition. But you can not read a limitation on sovereignty into a treaty. That is not the part of statesmanship. For, as I have just pointed out, if there were no sovereignty there at all it would be absolutely essential to establish it. Any power contiguous to it or remote from it could step in there and establish a sovereignty if one did not exist before. That is the very essence of the laws that exist between nations.

We are here now and I hope Senators will bear with me while I repeat this for the benefit of Senator Brandegee--dealing with sovereignties with treaties between sovereigns-sovereigns that can not be limited in the exercise of their sovereignty except by their own discretion.

I am perfectly ready to consider, and I have already pointed out that as matter of purely domestic policy, as matter of economics, exemption of coastwise steamers from payment of tolls is something I would be the last to support. I am opposed to excluding foreign competition from our coastwise trade. I would be in favor of throwing that and every branch of our trade open to competition by all the children of men, for that would simply mean that all over the world men would be competing to serve you and me. That is my conception of sound economics. But these matters of purely domestic policy are not proper subjects of treaty. A sovereign can not discuss these things with another sovereign without submitting to a limitation on his sovereignty.

Senator BRANDEGEE. The only rights we acquired there we acquired by the treaty, did we not?

Mr. COCKRAN. The rights we acquired are those of sovereignty or nothing. It matters not how they were acquired. It matters very

much what they are. I have been endeavoring to point out here that we can not hold that Zone as a trust. You can not have a sovereignty on trust, for a trust involves a superior sovereign to enforce it.

Senator BRANDEGEE. I say, the only rights we got there we got by the treaty with Panama.

Mr. COCKRAN. And those are full rights.

Senator BRANDEGEE. They do not so state. They state that they are rights for the operation of the canal.

Mr. COCKRAN. It is not necessary to state those rights. The necessary relationship, the only relationship possible between nations fixes those.

Again, I want to remind the Senator that we are not discussing a contract between individuals for the erection of a house over which if a dispute arose we would submit it to a court appointed by the sovereign to enforce his law.

Senator BRANDEGEE. But we were discussing whether we could get the right to build a canal on territory that belonged to the Republic of Panama.

Mr. COCKRAN. We have entered that territory, we have built that canal, and we are either sovereign over it or nothing.

Senator BRANDEGEE. The treaty says we have all the rights we would have if we were sovereign, for the operation of the canal.

Mr. COCKRAN. If the Senator can make a distinction between all the rights we would have if we were sovereign, and being sovereign, I make him a present of the discovery. I can not distinguish it.

Senator BRANDEGEE. I make this distinction: If we cease to operate the canal, we would have no sovereignty there whatever, and no business there. That is the only purpose we have the canal for.

Mr. COCKRAN. The probabilities are that we would get out voluntarily, but being there we are sovereign, and nobody can remove us except by our own act.

Senator SIMMONS. Let me ask you one question. Suppose, after entering into this treaty, we refused to take any steps whatsoever toward the construction of the canal, and we had continued that refusal for a course of years, do you think that after that refusal had continued so long as to become the settled purpose of the United States not to build the canal, that territory would belong to us in perpetuity as our own to do what we pleased with it?

Mr. COCKRAN. Will you tell us who would put us out? Senator SIMMONS. It might be a question whether Panama would have the power to put us out, but do you mean to sayMr. COCKRAN. Is there a tribunal

Senator SIMMONS. I am not talking about the power of Panama to put us out, but if we had never constructed that canal, or declared our purpose to construct that canal, do you think that we would have been entitled to exercise all the rights of sovereignty over that strip. of land that we would over any other strip of land within the territory

of the United States?

Mr. COCKRAN. Does the Senator mean morally justified, or does he mean entitled under the laws of any power known to civilized society?

Senator SIMMONS. I mean your legal rights construed, of course, under international law.

Mr. COCKRAN. We must first agree on what we mean by legal rights. What is law? What is legal right? Law is a command addressed to an inferior by a superior power, which that superior power can enforce. I am giving you the definition of Austin-the substance of it-of course I have not the original here. When we mention law and legal right here we should remember that we are dealing with sovereignties, with a treaty between sovereigns, not with a contract between individuals. The very question you put illustrates that distinction. I will answer it so far as I think it capable of an answer. While no one can question a sovereign so long as sovereignty lasts, it is always a question for the sovereign to decide what he will do as matter of conscience or policy. I think these are one and the same. What conscience suggests I believe is the policy a sovereign should pursue. Being sovereign over the Canal Zone no power can command us. While we hold that territory, no matter how we may have taken it, how we may have entered it, no power can command us to give it up, without by that act assuming sovereignty itself, at least for the time being. tically we would never have stayed a minute in that territory but for the canal, because the land is of no present value. All that I am insisting upon now is that these attempts to construe a treaty as something which limits the rights and powers of a sovereign over his own territory show a complete misapprehension of sovereign rights. The treaty with Panama establishes our sovereignty over the Canal Zone. The sovereign has taken possession of that territory and incorporated it in his own. That being so it is his and no power can question his administration of it. He may get rid of it if he wishes; he may assign it

Prac

Senator SIMMONS. I understand you to say, then, that you think the United States, without building any canal, can rightfullyMr. COCKRAN. What do you mean by rightfully?

Senator SIMMONS. Without building any canal, by virtue of this treaty with Colombia, take possession of that territory and use it for its own benefit, colonize or settle it, establish jurisdiction over it, hold it as a part and parcel of the United States?

Mr. COCKRAN. What do you mean by "rightful," Senator? I must come back to that.

Senator SIMMONS. That is the very question involved in the treaty. Mr. COCKRAN. I have begun by saying that there is no power to control sovereignty. The moment that territory was absorbed into our own, everything affecting its government, use, or control became a question for us alone. But another point of view I have been trying to discuss, what the sovereign in conscience should do under certain conditions. You can not enforce a question of right between sovereignties except through war, and it is by no means certain that the issue of battle would be decided in favor of what you and I should consider the right. We must always remember that it is the capital function of sovereignty to declare what is right and what is not. What the sovereign establishes as right it must compel all its subjects to accept as right. But who is to prescribe conditions of right for a sovereign and enforce them? Yet there are certain elements of international law which every sovereign recognizes and obeys. For instance, no sovereign in war will fire upon a flag of truce. Yet if that offense against international law and common humanity were

perpetrated, nobody is charged with the duty of pursuing the offender. Such an act would be contrary to the rules of war. It would be a crime against civilization. But if perpetrated by a sovereign it would be entirely within his power. Still the fact that no flag of truce has been fired on for centuries shows that certain moralities have power to impose themselves upon sovereigns even during the stress of battle. Senator SIMMONS. So that under every treaty, Mr. Cockran, we make with a foreign country, if we see fit to refuse to recognize its binding obligations and to violate it, there is no power that can make us observe it?

Mr. COCKRAN. None whatever.

Senator SIMMONS. Except the power of force?

Mr. COCKRAN. That is the case with every treaty. we must realize.

That is what

Senator SIMMONS. That is the case with reference to the agreement for equal treatment of vessels of other nations. If we want to we can refuse to observe equality of treatment to the foreign trade in the coastwise trade, and nobody can compel us to do it except by force of arms.

Mr. COCKRAN. I do not think the time is wasted, Senator, since we have got together on this point.

Senator SIMMONS. Therefore, when you consider the question of right here, you are not considering it exactly in the same sense that you would consider it where there was a court empowered to determine a final settlement?

Mr. COCKRAN. That is precisely what I was trying to say.

Senator SIMMONS. You are considering the obligation of nations— Mr. COCKRAN. I beg your pardon; I did not catch that.

Senator SIMMONS. You are considering the treaty obligation that obtains among nations as the result of treaty stipulations?

Mr. COCKRAN. The moral obligation; what the sovereign should do in the forum of conscience. That I am coming to. I am quite ready to consider that.

Senator SIMMONS. I should like to have you answer my question. I want to ask you if we are not under the same obligation to other nations in the forum of conscience?

Mr. COCKRAN. Oh, quite.

Senator SIMMONS. To recognize their rights?

Mr. COCKRAN. Quite.

Senator SIMMONS. And if Panama would not have conceded these privileges upon the Isthmus to us, except upon conditions that we construct a canal, then if we do not construct that canal we have not, in the forum of conscience, acquired any title whatever?

Mr. COCKRAN. I quite agree with you on that. The forum of conscience is one thing. We have been discussing

Senator SIMMONS. You said that the enforcement of treaties could not be determined except by force of arms.

Mr. COCKRAN. I have said that I was considering whether the law exempting our coastwise shipping from payment of tolls was plain violation of a treaty. I have pointed out that I recognize the obligation of a sovereign in the forum of conscience of his own motion to do right. That obligation, that moral obligation, I believe is getting stronger all the time; that is to say, it is being more widely and

readily acknowledged every day. We acknowledge it here most carefully.

Under the construction of the Hay-Pauncefote treaty for which advocates of this measure contend England would have a stronger literal right than other nations have to insist upon repeal of this measure, but she would not have any stronger moral right.

Senator SIMMONS. I understand you to be contending that because we did not build the canal by the Nicaragua route, which was the route in contemplation at the time the Hay-Pauncefote treaty was negotiated, that the Hay-Pauncefote treaty fell; that it has no application to a route constructed anywhere else?

Mr. COCKRAN. In considering whether a treaty exists depends entirely upon the circumstances it was adopted to meet. As I have pointed out to you, we had a treaty with Spain when we purchased Louisiana. The moment we acquired that territory our treaty with Spain was recognized by everybody as abrogated. We did not abrogate it specifically; we asked no country to do it. The change of conditions abrogated that treaty. If, therefore, we have entered into a treaty with reference to conditions which themselves have changed, so that covenants of the treaty are no longer agreements between two sovereigns concerning territory which is subject to neither, because the territory affected by the treaty has been acquired by one of them, that change of sovereignty ipso facto abrogates the treaty.

Senator SIMMONS. You know, as a matter of fact, that very thought occurred to the English Government, that we might possibly build it somewhere else; that we might possibly acquire sovereignty of territory, and that very matter was taken up with our negotiator, and the British Government impressed upon him the desire of Great Britain that the treaty should be so prepared that it would have binding effect wherever and under whatever circumstances and conditions the canal was constructed?

Mr. COCKRAN. I should regard that as an interesting contribution. to the truth of history. But the thing that would affect me in my judgment would be what the American Senate believed when it was ratifying that treaty. I am not concerned about what the English Government thought. The English Government must choose its own agencies for gaining information. And I think it has always had the most efficient agents in the world for this and every other diplomatic purpose. The thing which I am discussing here is the impression, the conviction, the belief under which that treaty went through the Senate of the United States. I venture to suggest that it is our place here in this country (I may be wrong about my notion of civic duty) to insist on the interpretation that governed the body which ratified the treaty on behalf of the American people. If the English Government put any such interpretation on it as is now put forth, that interpretation was certainly not translated into words in the treaty itself. I submit there is not a word in it which (conceding it to be binding on us) prohibits us from exempting our coastwise ships passing through that canal from payment of tolls.

But the first protest I make against this measure is that the question involved in it has been considered. The American people have passed upon it. The measure exempting our coastwise vessels from payment of these tolls has become a law. If in passing that law we violated a treaty, the violation is complete. It does seem to me an extraor