Panama Canal Tolls

Mr. COCKRAN. I do not think for a moment, sir, that we would attempt it.

Senator THORNTON. It is not a question of what we attempt. Mr. COCKRAN. If we come to sovereignty, there is only one sovereignty. If it be once established you can not condition or qualify it. You may of course surrender it by specific act. I quite agree with you that in the forum of conscience, and in the forum of statesmanship, for that matter, nobody would hold that we should hold the territory if we abandoned the canal. But if we are sovereigns, then there can be no limitation upon our power except such limitation as we may make ourselves, and that is not a limitation which can be enforced while we remain sovereign. If you are speaking of the limitations in conscience, I agree with you. The only purpose of defining clearly here the nature of sovereignty was to get before the committee this point: We are not to consider a treaty as if it were a contract for the building of the canal. A treaty is an agreement between sovereigns. When sovereigns complete a treaty which establishes a sovereignty, there is no power which can possibly limit condition or review its power, authority, and dominion. But in conscience the sovereign should always exercise a sovereignty according to the moral law, and under the conditions you assume this sovereign, the United States, would unquestionably get out of that territory.

Senator THORNTON. No. Dismiss all question of conscience or morals? I ask you again if, in your opinion, the United States should now close up that canal, leave there, and announce to the world that we did not propose to observe it any more, would we still have the absolute sovereignty of that canal?

Mr. COCKRAN. If we stayed there, certainly. How could it be disturbed? The whole trouble we are in to-day south of the Rio Grande, if you will allow me to say it, is due to a confusion of thought about what constitutes sovereignty. We have refused to recognize in Mexico a sovereignty because we did not like the person who holds it. But that attempt on our part to review the action of Mexico with respect to its own sovereignty I do not think was at all within our power. Even though that man who holds actual possession of the government was an assassin, even though he assassinated in cold blood the de jure president, and by that act of murder had estab lished his power over the country, he nevertheless became the actual de facto sovereign. So if we remain on the Isthmus even under the conditions you assume, we would be sovereign there. Who, let me ask, could throw us out? Who could dispossess us?

Senator THORNTON. Suppose we leave there, are we still absolute sovereigns?

Mr. COCKRAN. No; that would be an abandonment.

Senator THORNTON. Then, if we quit operating the canal? Mr. COCKRAN. If we quit operating the canal and abandon the country, the sovereignty must still exist somewhere. The sovereign of adjoining territory could take possession of it and would.

Senator THORNTON. Then we will not leave there; we will remain there, but we will close up the canal; block it up from end to end and announce to the world that we never intend to operate it again, but that we are going to stay there. Have we, then, absolute sovereignty under those conditions?

Mr. COCKRAN. Certainly. The sovereignty consists in possession of the power the dominion authority over the territory. That is all that sovereignty is. There is no determining element, as you see very well, Senator, of morality about it.

Senator THORNTON. No; I did not say there is not.

Mr. COCKRAN. Very good. Then, if we stayed there and closed up the canal, or did anything else, so long as we remain supreme over the territory we are sovereigns in possession.

Senator THORNTON. We are still then absolute sovereigns?

Mr. COCKRAN. Undoubtedly we would be. I should like to know who else would be. Who be the sovereign if we were not?

Senator THORNTON. I would think that Panama would be.

Mr. COCKRAN. Perhaps de jure, but we would be sovereign there actually de facto. There seems to be a certain confusion of thought about the use of these terms, which I have endeavored to dispel.

Senator SIMMONS. Do you not think it rather extraordinary, if we acquired the absolute right of sovereignty of this canal, that we should have entered into an agreement to pay Panama for the next 100 years an annual rental of $250,000, and it gives us the right to renew in perpetuity, if we want to; at the end of 90 years we may renew our lease, and then we must pay an additional rental. Do you consider the acquisition of territory under those conditions, first providing for a right to stay there 90 years and paying while we stay there every year $25,000, and $250,000 rent, then with the right, in perpetuity, to renew that contract or lease, as I call it, or rental, I will say that at the end of every hundred years we may renew it again for another 100 years, but upon the payment of the same annual rental of $250,000. Do you think under those conditions, the lease expiring at the end of 100 years unless we renew it again-do you consider that consistent with absolute sovereignty?

Mr. COCKRAN. It is as consistent as it was to pay $30,000,000 for territory acquired from Mexico or was it $15,000,000? My recollection is not clear. Whether we pay money down or annually, what difference does it make?

Senator SIMMONS. But heretofore we have bought territory and paid for it. That was the end of it.

Mr. COCKRAN. What difference does that make?

Senator SIMMONS. The sovereign from whom we bought it did not have the right to come to us at the end of every year and say: “Pay us the rental."

Mr. COCKRAN. We could have made it so.

Senator SIMMONS. And the sovereign does not have the right to come at the end of a hundred years and say: "Do you want to renew for another hundred years at the same rental?"

Mr. COCKRAN. I can see no difference whatever between payment down and payment at intervals of time. If we had spread payment of that $15,000,000 to Mexico over 100 years or over 50 years, it would not have made the slightest difference in the transaction. itself.

The CHAIRMAN. I wish to suggest that under the Panama treaty, in the clause which provides for the payment of $250,000 annually, there is added a paragraph stating that any differences or delays that may arise under this clause will not impair the rights heretofore granted.

Mr. COCKRAN. Oh, yes, of course. I think we are wasting much time upon abstract contentions.

From the beginning I have been expressing a hope that there would be a little more caution hereafter about applying the descriptive term of trustee to our possession of the Canal Zone, and about apologizing or uttering expressions of regret for taking that territory because of complications that may arise in the future. But so far as this particular Hay-Pauncefote treaty is concerned, I am prefectly willing that our conduct should be governed by its terms, and in view of that concession perhaps such abstract notions as we may entertain on what is considered sovereignty are not worth the time we have taken up to-day.

I am perfectly prepared to consider the provisions of this treaty binding in conscience. The sovereign, of his own discretion, I think, should order his conduct; that is to say, should administer the Sovereignty exactly as if the treaty were in force. When the proposal to establish this tolls exemption was before Congress, it was declared a violation of the Hay-Pauncefote treaty. Nobody then questioned the existence of this treaty. The objection was discussed in both Houses, it was overruled in both Houses. It has become the settled law of the country, and to repeal it now under the conditions surrounding the pending measure, in my judgment, would be a lasting discredit to the fame of the American Nation. At the same time I think it is an unwise and unsound policy to disturb a conclusion affecting our commerce which was reached after extensive discussion and deliberate consideration.

I was bitterly opposed to taking the Philippines. In 1904 I went all over the country denouncing that policy; but after the people in two successive presidential elections had decided to hold them I believed we were bound to treat it as a question that was settled as a fixed policy of the country.

Now, I think, with relation to this canal, the granting of exemption to coastwise ships has been discussed. It has become a law. After it is written on the statute books for 15 months we ought not now to make the admission that will be involved necessarily by passage of this law.

Senator OWEN. Do we?

Mr. COCKRAN. We only have the President's word for it.

Senator OWEN. I know. I am not talking about the President. I am talking about the act.

Mr. COCKRAN. He says: "And, moreover, it is in plain contravention of the treaty with Great Britain."

Senator OWEN. That is the President's opinion. I am talking about an act of Congress.

Mr. COCKRAN. If this were merely a proposal to repeal an existing law without any suggestion that the measure must be passed in order to expiate a wrong already committed, an entirely different question would be before us; but to pass it under actual conditions would not merely imperil our national possessions, but it would discredit our national honor. It would be admitting that we made one construction of the treaty when we thought there was no trouble on the horizon, but shifting our attitude in the presence of danger.

Senator BRANDEGEE. Did I understand you to say you would advocate submitting this to arbitration?

Mr. COCKRAN. I would advocate submitting to arbitration the question whether the Hay-Pauncefote treaty is in force. I should be delighted to submit that question to arbitration.

Senator BRANDEGEE. Not the construction of the treaty?

Mr. COCKRAN. And the construction, both. And for this reason— I will explain it to you in a moment. I think there is a very serious question back of all this. This, I fear, will be only the beginning of many complications that will be constantly arising if our relationship to the canal be left in any doubt. I say we ought not to admit this tolls exemption is a violation of the treaty, because, as matter of fact, it is not a violation. We should not needlessly and untruthfully confess that it is a breach of faith. We should not suffer ourselves to be placed in the attitude of "giving up the goods" because the police are getting close to us. I do not think that is a position which this great country should take. Above all, we should not do this, when, as matter of fact, there has been no violation of treaty obligations. Senator BRANDEGEE. The refusal to give up the goods does not establish the title to them.

Mr. COCKRAN. Not completely, perhaps; but giving up the goods when the police come is very apt to be taken as a confession they were not properly obtained.

Senator BRANDEGEE. It may not be. Mr. COCKRAN. It is generally taken so. It is not a very creditable position. The position we are asked to take is that of a fugitive who being pursued gives up something that he did not see the necessity of giving up before the pursuit started. That is the construction which I think must be put upon the passage of this law. Yet, notwithstanding the discredit which passage of this act must entail upon us, still, as I have already said more than once, if in granting this exemption to American ships we in fact committed a plain violation of a treaty, if we have indeed committed this infamy, the quicker we acknowledge it the better.

Senator BRANDEGEE. Do you consider that the discussion of whether you had authority to pass a statute under a treaty and the determination, if you do determine so, that upon considering the whole treaty you did not have a right to do it is a confession of an intention to commit an infamy?

Mr. COCKRAN. If we have done something, and having done it, if we have persisted in it, and now change our attitude because a complication has arisen in another part of the world, and we are told that passage of this act is necessary to deal with that complication, then say that conduct comes very close to infamy.

Senator BRANDEGEE. Suppose anybody really believes that a mistake was made in passing a law, do you think it is infamous for him to change his opinion?

Mr. COCKRAN. I think this: If his realization of the mistake did not arise until difficulties began to grow up around him, I say the conviction would be overwhelming that his conduct was not reputable. Senator BRANDEGEE. I was not here when you began your remarks. Do you claim that the Hay-Pauncefote treaty is not actually in existence now?

Mr. COCKRAN. I do. But I am not arguing that now. I say it is no longer in effect. I think any court in the world will decide that absorption of that territory abrogates it. But assuming that our

sovereignty there is complete, it is always a question for the sovereign how he will exercise his sovereignty. From that point of view I think it would be eminently proper that we carry out every condition of that treaty, because the treaty embodies a sound policy for the government of the canal. I believe that. Now, what is that policy? of you read this treaty it does not seem to me that anybody can be in doubt about its significance. I can not understand how any controversy has arisen over our right to grant an exemption plainly to our vessels passing through the waterway. Here is the clause which governs our right in this respect:

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. Such conditions and charges of traffic shall be just and equitable.

Everybody will concede I am sure that a treaty must be considered in its relation to the conditions with which it was intended to deal. This exemption was entirely in line with the general policy towards our shipping which we had maintained for nearly a century. I read this clause of the treaty to mean just this, and nothing else: That the canal when constructed shall not be used to establish discriminations that did not exist when the treaty was signed; that the canal shall not be used to force discriminations that otherwise do not exist. Nobody would pretend I am sure that Senator Simmons will not pretend, that this provision was intended to abolish existing discriminations of every kind or character in the shipping of the two countries, so that our whole coastwise shipping should be thrown open to foreign nations. Discriminations that existed, I take it, nobody dreamed were to be disturbed. But it was intended that the canal itself should not be used to establish new discriminations. In the light of those principles of construction which I think everyone will accept, listen I beg while I read this section again:

That is to say, the canal shall not be used to establish new discriminations. It must mean that, or else it must be contended that under this treaty the canal was intended to abolish discriminations which already existed. Now, we had that coastwise exemption

Senator SIMMONS. We are not the only nation upon this continent that has a coastwise trade that will seek that canal. Now, if we establish one rule as to those with relation to our coastwise trade, and a different rule with reference to the coastwise trade of Canada and Mexico, the other countries fronting on the oceans on both sides, we are establishing a discrimination in the coastwise trade of the countries that use the canal, are we not?

Mr. COCKRAN. We are not establishing any discrimination, any new discrimination that did not exist before. You can not have a larger discrimination than total exclusion.

Senator SIMMONS. I can not see that.

Mr. COCKRAN. We have excluded all foreign vessels from our coastwise traffic. How, then, can we by any method of administering

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