dinary, not to say an appalling, situation, that we are asked now to confess we have violated our obligation, broken our word, passed a measure in plain contravention of the treaty. And why is this cup pressed to our lips? Now, let us talk frankly and fairly. Why? I have said in the beginning that if a wrong has been done and it has been realized through a real awakening of conscience there is nothing better for those who perpetrate a wrong to do than to acknowledge it. But I deny the American people have ever done a wrong or contemplated a wrong. For the purpose of this discussion I am perfectly willing to acknowledge that though we can not be coerced or conditioned in our sovereignty, yet as a matter of policy, comity and conscience we should be willing to govern our conduct as though the Hay-Pauncefote treaty were binding on us, but I insist that it can not be as supporters of this measure that it was understood in this country when the treaty was negotiated

Senator OWEN. Speaking of the Panama treaty?

Mr. COCKRAN. Speaking of the Hay-Pauncefote treaty of 1901. Senator OWEN. Let me ask you a question. I understand that you recognize by Article III of the Panama treaty that we acquired sovereignty and that Panama relinquished its entire sovereignty to us, and therefore that we became completely sovereign?

Mr. COCKRAN. Yes, sir.

Senator OWEN. But I do not understand whether or not you regard the sovereign now charged with a contract duty under Article XVIII of the Panama treaty. I want you to explain that.

Mr. COCKRAN. When the territory was ceded to us we made that treaty and that treaty we are morally bound to carry outSenator OWEN. Section 18?

Mr. COCKRAN. I know, I read it when you were away, Senator. Senator OWEN. Here it is, Mr. Cockran.

Mr. COCKRAN (reading):

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 between the Governments of the United States and Great Britain on November 18, 1901. .

Senator OWEN. So it comes back at last to the treaty?

Mr. COCKRAN. I am coming to that. I have been discussing it before you came in. That you may understand my position, I will say, even at the risk of frequent repetition, that I have been considering the two conditions under which the repeal was recommended by the President. First, because this exemption is unsound as an economic policy, with which I agree thoroughly. I should be glad to abolish completely exclusion of foreign ships from the coastwise trade, but I should do this as a matter of domestic policy, not to purchase the forbearance or good will of any foreign power.

Senator OWEN. Your contention is that the contract duty under Article XVIII does not involve the question of

Mr. COCKRAN. That is it precisely. I hold, as Senator Foraker did, that Article XVIII followed by Article XIX gave to the Republic of Panama a privilege which we had no right to give, under the construction of the Hav-Pauncefote treaty, which underlies the Presi dent's recommendation of the pending measure. The fact that we entered into this agreement is conclusive evidence that neither we nor Panama gave any such interpretation to the treaty at that time

as the one for which supporters of this measure are now contending. Great Britain did not protest against this provision of our treaty with Panama when it was ratified. So, even in the light of attorneyship, to say nothing of statesmanship, she is estopped from the contention she is now making. We have acquired sovereignty over the territory in which we are constructing the canal under an interpretation of the Hay-Pauncefote treaty which is hostile to the interpretation of it for which Great Britain is now contending, and no protest was made against the Pana.na treaty. In other words, we gave Panama the very exemption

Senator OWEN. It was contemplated under Article IV of the Hay-Pauncefote treaty, was it not?

Mr. COCKRAN. In no way whatever, that I can see. I can add nothing to what Senator Foraker said about the interpretation of that treaty or the construction put upon it. I only wish to say, although it is repeating what I have already said more than once, that this measure involves an admission that we violated a treaty, and I think every American should hesitate long before he makes a concession that his country was capable of such perfidy.

Senator OWEN. If that is a misinterpretation of the Hay-Pauncefote treaty, then it is a misapprehension of the contract with Panama and not a violation of the treaty itself?

Mr. COCKRAN. I do not quite follow you.

Senator OWEN. As I understand your contention, if the interpretation which those opposed to your view put upon the HayPauncefote treaty be true, then from your point of view it would not be a violation of the Hay-Pauncefote treaty, but merely a violation of the contract we entered into in the eighteenth article of the Panama treaty

Mr. COCKRAN. Oh, no; I beg your pardon. What I mean to say is that the eighteenth and nineteenth articles must be taken together. The eighteenth article recognizes the obligations of the Hay-Pauncefote treaty that is, we acknowledge it and Panama acknowledged it. We agreed by the eighteenth article that the canal was to be opened under the operations of that treaty. Then in the nineteenth article both parties, as I contend, put upon that treaty the interpretation which justifies us in exempting our coastwise shipping from payment of tolls. For by this nineteenth article we give an exemption to Panama, which is a much clearer exercise of unconditioned sovereignty than this exemption of our coastwise shipping from tolls could be, for that is not

Senator BRANDEGEE. Let me understand that. I do not follow you there. Article XIX, as I look at it, is an agreement between the Government of the United States and the Republic of Panama that they shall have the right to transport over the canal the Government vessels and troops of Panama?

Mr. COCKRAN. Yes.

Senator BRANDEGEE. You say that is a grant by the United States to Panama?

Mr. COCKRAN. Why, of course it is.

Senator BRANDEGEE. I consider it to be a reservation to Pan

ama

Mr. COCKRAN. Again I must remind you that it is not a question of attorneyship, it is a question of statesmanship we are considering.

The thing we have here, as a matter of fact is, this: The United States enters into a convention with Panama which shows that neither Panama nor the United States did put this construction upon the Hay-Pauncefote treaty, for if they did they could not have made this

agreement.

Senator BRANDEGEE. But Panama may not have given up the right to build the canal?

Mr. COCKRAN. That would not make any difference.

Senator BRANDEGEE. Why not?

Mr. COCKRAN. Because they and we had no right to modify our agreement with Great Britain.

Senator BRANDEGEE. The agreement with Great Britain was whatever we got should be carried

Mr. COCKRAN. It was nothing of the kind.

Senator BRANDEGEE. What was it?

Mr. COCKRAN. It was that the canal should be free to all ships of all nations. That is what we agreed. At that time it was not contemplated that we should take the country at all.

Senator BRANDEGEE. We could not give England any advantage we did not have ourselves.

If she

Mr. COCKRAN. Of course we could not; neither could we give away to Panama England's rights under a treaty with us. had any rights under this treaty, we could not make any agreement with Panama which violated them, even for the sake of getting that territory.

Senator BRANDEGEE. But it seems to me the only right we got to build the canal was by this treaty with Panama, and we got such rights as we got. We can not share with anybody except what we got.

Mr. COCKRAN. There is nothing in the treaty which declares we shall share only such rights as we got. The language of the treaty concerns the canal, regardless of how we get it. If we could not get the territory on conditions consistent with our agreements for building the canal under that Hay-Pauncefote treaty, we should have gone back to Great Britain and secured a modification of it. The fact that we did not seek such modification shows that we did not think it was necessary. And indeed necessity for the modification seems to have been discovered only when this attempt was made to repeal the law granting exemption to our coastwise shipping. We made a grant to Panama on the construction which I have been describing and England stands by without uttering one word of protest. Senator BRANDEGEE. I differ with you there.

Mr. COCKRAN. I am sorry.

Senator BRANDEGEE. So am I.

Mr. COCKRAN. I am awfully sorry for a difference with you, Senator Brandegee. We have been so much and so often in harmony that a difference now gives me a kind of a chill, which I am afraid will affect what I have to say.

Senator SIMMONS. I have understood you as insisting that we really had no treaty with Great Britain

Mr. COCKRAN. Oh, no.

Senator SIMMONS. That was now of binding effect, because we have built the canal by a different route from that contemplated? Mr. COCKRAN. No; I beg your pardon. I did not say that.

Senator SIMMONS. Under rights of the territory

Mr. COCKRAN. I say the territory affected by the particular treaty having become absorbed the treaty itself is changed. But for the purpose of this argument I repeat I am willing to recognize the existence of the treaty. In other words, I am willing that the sovereign of his own motion shall scale his conduct to the conditions of that treaty though without conceding any obligation to do so to any country in the world, because the sovereign can not be conditioned. Senator SIMMONS. For the purpose of bringing to your mind the understanding under which Great Britain made this treaty and the construction which was put upon it by the men who made it in contradistinction to the construction which you put now upon it, I want to call your attention first to the language of the treaty:

Whereas a convention

*

* may be considered expedited.

In connection with that language, by whatever route, not by Nicaragua, but by whatever route, I want to call your attention to a letter written by Mr. Choate, our ambassador who negotiated this treaty, to Mr. Hay, the then Secretary of State, of date September 27, 1901. I will read only such parts of it as are pertinent to this question.

He also (referring to Lord Pauncefote) alluded to the rumors now very rife here that we might after all decide (that is, the United State) to acquire and complete a canal by the Panama route and abandon the Nicaragua route altogether, in which case it had been suggested to him by some of the experts at the foreign office that it might be plain that our treaty, as it now stands, is for a canal by the Nicaragua route only and does not apply at all to the Panama route. It, of course, as he said, placed the British Government in the most ridiculous position of having signed a treaty abrogating the Clayton-Bulwer treaty and yet having no reference to a canal that we were actually proceeding to build. He could not conceal his disturbance of mind at this suggestion. I told him (that is, Mr. Choate) I was sure you (Secretary Hay) had no such idea as that or of putting them in such a predicament; that of course this had always been called the Nicaragua canal treaty; that the original Hay-Pauncefote treaty was for a Nicaragua canal, because it left out the ClaytonBulwer treaty with its preamble and its eight articles in force, but that by the plain reading of this treaty, abrogating the Clayton-Bulwer treaty and retaining no reference to any particular route, it would apply to the first canal that we should build, by whichever route, and that there was little possibility of any second canal being built, that it was not worth while to think about it or to provide for it; and this, I think, was his own view. I saw him again to-day, and he was just going to see Lord Lansdowne, who has unexpectedly come to London. He had prepared a memorandum to submit to Lord L., showing the propriety of their accepting your 4 for his 3A. If they adhere to the point suggested as raised at the foreign office, he may want to insert a few words in the preamble or elsewhere to remove all doubt that it is to apply to the canal we actually first build, by whichever route. On conference with him I sent you to-day the confidential cipher cable of which I inclose a copy. Lord Pauncefote is quite hopeful of satisfying Lord Lansdowne to adopt 4 as amended. Now, I ask you if that does not make it clear? Mr. COCKRAN. Not in the slightest degree.

Senator SIMMONS. That it was the understanding of the two negotiators that this treaty they were negotiating was to apply to any canal that we might build across the Isthmus?

Mr. COCKRAN. It was never contemplated that we would acquire the land itself. But whatever they may have contemplated-whatever the British Government may have thought has not the slightest effect on me. I am concerned with what was pending before the Senate and the American people when this treaty was ratified. I am considering this question from the American point of view. I do not

know what the English Government may have thought, but this much I do know. Anything that may have been considered, anything that may have been said, anything that may have been concluded with reference to any territory that was alien must be modified by the fact that the territory has become our own. What I am endeavoring to point out here is this: That taking this treaty as it stands, according as the Senate must have interpreted it (Senator Foraker tells you exactly how he understood it), the idea of excluding American coastwise steamships never could have entered the heads of Senators; and it is equally clear that the negotiators did not consider that question. Mr. White and Mr. Choate both, I understand, say that the question of exempting American coastwise steamships never was considered at any stage of the negotiations.

Now, in construing that treaty, even according to attorneyship, you must interpret it according to the conditions it was framed to meet. What I contend here is this: When that treaty was framed, exclusion of foreign vessels from our coastwise shipping was part of our economic system. That fact must have been before the minds. of all these men. If they intended to change this existing economic system, they would have expressed it clearly in that treaty.

Senator SIMMONS. Do I understand you as contending that we could not have given to Great Britain the right of equal treatment with reference to coastwise trade without surrendering our sovereignty?

Mr. COCKRAN. I do say that absolutely. In other words, we have acted ourselves on the subject in one manner. We are asked now, in deference to Great Britain, to act in another and radically different

manner.

Senator SIMMONS. When we did go to Great Britain, or did agree with Great Britain in this treaty (and afterwards we ratified that), that we would treat all ships engaged in foreign commerce upon terms of absolute equality, did we not surrender our sovereignty as much by agreeing that we would give them absolute equality of treatment with reference to their foreign commerce, our foreign commerce, as we would if we had agreed with them to give absolute equality of treatment with reference to our intercoastal trade?

Mr. COCKRAN. I am not sure that I quite understand you, but this much I do say: Any agreement that was made between them did not contemplate this land, this territory, becoming our own. It was one thing for two sovereigns to agree upon a joint protectorate over alien territory. It is quite a different thing to let that treaty condition. our sovereignty after it has been established over that territory.

In other words, we did not have sovereignty, and sovereignty by us was not contemplated over that territory when this treaty was made. Now, that territory has passed under our sovereignty, and (though it does not seem that I can get you gentlemen to understand the proposition) I contend that the whole character of the relationship was changed by that fact, and this treaty, like every treaty, becomes modified or abrogated with changed conditions.

Senator SIMMONS. Yes; I understand that part of your argument very thoroughly, but the other part I did not understand. You do not contend that under this treaty we could charge the ships of Germany one toll for passing through that canal and charge the ships of France.another toll?