tive definition which this country will be willing to accept. Nobody can force on us a definition of that relationship which we are not willing to accept. But I should be glad to take the conscience of the world into counsel with us and ask what are our rights in that territory. Are we sovereign with the right to make rules for this canal? If we are not sovereign, but a trustee with no sovereign to whom we must account, no sovereign to enforce the trust, confusion so hopeless and so inextricable may ensue, that the canal instead of being a great contribution to the progress and peace of the world will become a source of disunion, conflict, and disaster.

Senator SIMMONS. In that connection Senator Foraker this morning laid great stress upon the primary object of the United States in building the canal. He told us the primary object was of a military character, and he illustrated that with the trip of the Oregon around the Horn. He said that brought to the attention of the people of this country the great importance to the country of having a short route between the two oceans in connection with its military operations. We secured that great advantage that our vessels could go through there.

Mr. COCKRAN. But every other vessel can go through there on the same terms, according to the theory of this measure.

Senator SIMMONS. Of course, you are aware of the fact that long before we undertook to build this canal a great company organized in France undertook to build it?

Mr. COCKRAN. Indeed, I am.

Senator SIMMONS. And they expended a great many millions of dollars on its construction. They were constructing it solely for a profit-making enterprise. They were constructing it solely for the purpose of making money out of it, and charging tolls.

Mr. COCKRAN. Certainly.

Senator SIMMONS. We are constructing it, and we will enjoy that same benefit which was sufficient to induce these French capitalists to build it and put their money in it, to wit, the right to charge tolls upon the commerce of the world.

Mr. COCKRAN. But profit, and profit alone, was the object for which they were striving. We are not building this canal for profit; everybody concedes that.

Senator SIMMONS. You say we have no rights there. I say we have all rights. Your contention here is that we have no rights whatever.

Mr. COCKRAN. I ask you what they are? We are trustee to establish rules which we ourselves must observe. That is not government. Government is the right to command and to compel your authority to be obeyed by others. We have not any such power as that, according to your contention. We have not got control in that sense; we have not got ownership in that sense. The purpose of that canal is for the passage of ships through it. You say we have no authority whatever to prescribe a single rule that we ourselves must not obey. I say at that rate our authority is reduced to controlling it as a swimming pool or a fishing pond, and if for that we have paid $400,000,000 and taken on the grievous burden of protection, defense, and main

tenance

Senator SIMMONS. Do you not know that the Suez Canal, which was constructed by private capital and operated for profit, is subject to certain rules and regulations established by the nations of the world?

Mr. COCKRAN. Why not? That is a private corporation which must be regulated. You can have nothing of importance in a civilized country without a sovereign which controls it and is answerable for it. That, being a private corporation, must be subject to sovereignty just as the Panama Canal is. But we are the sovereign ourselves, and we can be subject to nobody if we are sovereign. If we are not, then we are a nondescript that I, at least, can not define. We are either a sovereign or we are not. If we are there in any other capacity than that of sovereignty, I am incapable of defining it, because I do not know of any such relationship ever borne by a civilized community to any territory in the world. I am merely stating conditions which, it seems to me, require very careful thought and very patient consideration, with an absolutely nonpartisan attitude.

I do not want anybody to think there is the slightest suggestion of hostility to Great Britain in all this. I would take exactly the same position if the other nations concerned were France, Germany, Russia; much stronger in fact. If out of this whole discussion can come some method by which we can secure an exact definition of just what our relationship is to this great enterprise, I shall rejoice at it. But I submit we do not put ourselves in a proper position before the judgment of the world, before the conscience of civilization, if we admit that this Nation has deliberately violated a solemn treaty. In the first place, it would not be true, and in the second place, it is a confession that no representative American body would be justified in making or even considering without a direct authorization given at the ballot box after full, fair, and candid discussion by the whole body of the American people.

The CHAIRMAN. We are very much indebted to you, Mr. Cockran. STATEMENT OF MR. THEODORE SUTRO, NEW YORK CITY.

The CHAIRMAN. Do you desire to express your own views or are you here in behalf of any society or organization?

Mr. SUTRO. I can not say that I am here officially on behalf of any society, but I may say that I believe the views as I shall express them here are the views of a large majority of the German population of this country. But I do not want to be understood that I appear here officially as a representative of the German people.

The CHAIRMAN. What is your profession? Please state it for the record.

Mr. SUTRO. I am a lawyer.

The CHAIRMAN. Are you officially connected with certain German associations in the country?

Mr. SUTRO. Yes; I have been for years. I was for five years the president of the United German Societies of the city of New York, and for five years the president of the German American Alliance of the State of New York. I have been vice president of the National Alliance, and I am still now officially president of the United German Societies of the city of New York and of the State of New York, and a life member of the German-American National Alliance.

The CHAIRMAN. The German Alliance in the State of New York embraces what membership?

Mr. SUTRO. About 40,000 members. In the city of New York, Brooklyn, and New York, I should say about-Brooklyn and Manhattan-25,000 members. Those are actual enrolled members.

The CHAIRMAN. The committee will be glad to hear any views you have to express regarding the pending legislation.

Mr. SUTRO. Mr. Chairman and gentlemen: It seems to me that I should preface what I desire to say in reference to my relation to the German population here by expressing briefly the way the matter strikes me, as a lawyer of 40 years' practice, from listening to the interesting discussion to-day, that, after all, whether we are a sovcreign or a modified sovereign, or whether we are a trustee (which I would not admit), the true obligations which rest upon us are to be found in the treaty. It strikes me that in construing a written instrument, whether it be a treaty or any other document, the first rule to apply is whether the language is clear or not. If the language is not clear the next step is to try to get at the intention of the person who signed the document, in the light of such circumstances as we may be able to prove at the time of the signature-the same as, for example, in interpreting a bill. When a bill is not clear in its terms, we apply the doctrine of cy pres and to construe it in such light as we can get as to the intention of the testator.

It seems to me that if we consider that this contract was entered into between a foreign nation and our country we must consider whether either of those nations did not express in that instrument exactly what they intended to say. And if they intended, as has been contended here before the committee at various times, that the proposed agreement between the foreign nation, which was England, and our country, was intended to apply to anything else except what was then under discussion, namely, the domestic trade of either country, that we should have been distinctly mentioned and described. In default of that it seems to me that the language of this contract is clear that the contracting parties intended to apply whatever is pertinent to the document, pertaining to tolls only to foreign nationsnot to the internal affairs of either of the contracting parties.

Of course, I can not enter into a long argument to-day on that subject, but I only want to give that general impression, which I have received from the discussion which I heard to-day.

I, at one time, was the unfortunate owner of a large farm in the Berkshire hills, and I had two neighbors who wanted to have the privilege of using a portion of my farm. They abutted on my farm, and I made an agreement with them that they could do so subject to certain rules that I established, I being the owner of the farm. Now, I did not in any way limit myself to an observance of the rules which I made. One of the rules was that they were not to poach upon my property; that they should not shoot the partridges which I had upon my property, but it seems to me that as this instrument was perfectly clear, although the rules were not mentioned in the instrument, but only the phrase was contained in it that the agreement should hold subject to such rules as I would make, it certainly could not be contended that I myself should not be allowed to shoot partridges on my place.

Senator SIMMONS. Let me ask you a question right there, and I am going to ask it now because I have got to leave. What would be your standard for ascertaining whether a document is entirely clear? If there was a sharp disagreement among lawyers as to the meaning of certain phraseology in the document, would you say that was clear?

Mr. SUTRO. I would not say that was absolutely clear, but I think I would take into consideration the point upon which the contention arose. As I understand the contention arises in regard to this instrument only in regard to something that the persons who contracted at the time were not taking into consideration at all. In so far as that is concerned, I think that we may interpret whether the provision that has been under discussion here for so long a time, was under consideration by Congress, which has been mentioned here. And I certainly would contend that if the treaty, and I may say that I have examined many treaties in my life, as I was counsel for the German consulate in New York, and for the Austrian consulate and for the Swiss consulate-that in so far as the treaty is concerned, I think the country which has made a concession, such as we have, and which is the owner of territory to which that concession applies, should construe an instrument of that kind, unless there is direct and clear and unmistakable provisions in the treaty to the contrary in its own favor.

I am going further than I intended to do, but allow me one more word. I want to present one other point. I wish you would listen to that for one minute, because I was in Germany for some time, and I want to bring that in, too. I understand when this matter was up for discussion in Congress an amendment was offered to the effect that this clause should be clearly expressed, that American shipping engaged in the coastwise trade should be free from toll; that a vote was taken upon that subject, and it was voted down. Now, the discussion here has turned upon the question of whether the majority, or the majority who voted against inserting that in the treaty, did so because they considered it unnecessary.

On that point it seems to me we ought to assume that they did, because the instrument itself on that point contained practically nothing, and the instrument relating entirely to international commerce and not to domestic commerce, it seems to me that we may assume that the minority who voted against the insertion of that clause did it solely and only because they thought the instrument was clear enough on that point. And I do not think that the committee would assume that the public sentiment at that time was less patriotic than it is now, because it certainly was a patriotic position to take, if we can do so properly, leaving out the question of conscience entirely or honor. If we can do so properly, according to the terms of the instrument, it seems to me that it is a patriotic move for Congress to interpret it in favor of our country, which was one of the contracting parties which made the concession to Great Britain, and at the same time for the benefit of all the other nations in the world.

Senator SIMMONS. If you should assume that the majority voted against the amendment because they thought it was unnecessary, what would be your assumption as to the minority, which was two

fifths of the total number of Senators voting-what would you assume was the object of the minority in voting for the amendment? Mr. SUTRO. In case that has happened.

Senator SIMMONS. It did happen in reference to the Bard amend

ment.

Mr. SUTRO. That was a fact, as I understand it.

Senator SIMMONS. That was the fact, and three-fifths of the Senate voted against the Bard amendment. You say they did it because they thought it was unnecessary?

Mr. SUTRO. Yes, sir.

Senator SIMMONS. Now about the two-thirds who voted for the Bard amendment. Would you say they voted for it because they thought it was necessary?

Mr. SUTRO. I think they voted in favor of the amendment because it might have added something to the clearness of the instrument, possibly.

Senator SIMMONS. You would then admit that they thought the instrument was not clear?

Mr. SUTRO. Not absolutely. I do not admit that entirely because I think the clearness of the instrument appears from the phrases that are used in it in general without reference to this particular clause, but as a matter of extra precaution lawyers often insert something in an instrument so that it makes it so absolutely clear that not even a person-anyone, no matter how he looks at the instrument-can possibly raise a question.

Senator SIMMONS. If you will pardon me, I do not wish to ask any further questions.

The CHAIRMAN. The Senator wishes a moment to call attention of the stenographer to some papers.

Senator SIMMONS. Mr. Chairman, you suggested to me privately a moment ago that after this witness concluded, he having indicated that he would take a little time, there might be time to read the correspondence between Mr. Root and our official representatives of this country and Great Britain with reference to the treaty with Colombia, which he negotiated in 1909. The first part of this page here is just some memoranda as to certain provisions of the treaties relating to this subject.

The CHAIRMAN. You wish it to go in the record at this point?
Senator SIMMONS. Yes, sir.

The CHAIRMAN. I will see that it goes in. You may proceed, Mr. Sutro.

Mr. SUTRO. I think that if an instrument requires construction because the language is not clear the interpretation placed upon an instrument, especially upon a treaty by other than the high contracting parties, by others who have also an interest in that instrument, should be taken into consideration.

I do not want to say that I have the official assurance of the countries that I have visited during the last five or six months, but I have an impression and a very strong impression from the negative position they took with reference to the objections they made to participate in the Panama-Pacific Exposition, which I went out to advocate- not in any way as a representative of the United States Government, or even of the exposition authorities and in my conversations and conferences with high officials in Germany, the highest