own expense and operating it for a profit, as the Suez Canal was constructed and is operated, can, under these circumstances and conditions, be compelled to give free passage to a large class of vessels possibly yielding a larger profit to their owners, owned by other corporations or interests not named, described, or excepted anywhere in the treaty.

"It is submitted that under this treaty any corporation constructing and operating the canal under this provision would not be compelled to relinquish, without consideration, any of its legitimate revenues to another corporation owning and operating American ships in the coastwise trade.

"Exactly the same rule must apply to the construction and operation by the United States itself as by a private corporation doing the same thing, because the same language and the same authority and rules apply to both. There can be no exception in one case unless it can also be an exception in the other.

"It can hardly be argued that the United States might exact as a condition of any grant, aid, or subscription that there should be a preference or discrimination to the vessels of commerce of its citizens, because that very thing is expressly forbidden by the broad terms of Section 1, Article III, prohibiting any such exception or condition.

"Any other stockholder or guarantor could have as much right to exact his own private conditions for his own private advantage, with the result that the enterprise would face ruin from the start. The treaty gives the United States as a stockholder or guarantor no other

rights than any other interest also assisting in the enterprise. A British, German, French or Japanese steamship company might subscribe, own and hold large blocks of stock or bonds in a corporation provided in section 2, and with equal right under the treaty might demand a preference for its vessels as an exception on account of such ownership. Of course such a demand would be absurd and unjust, and yet equally valid and equitable as a similar demand and exception for the United States. The terms of the treaty and the existing situation would seem to practically and legally make the United States a corporation sole, for the purpose of constructing, operating, and managing the canal, with exactly the same rights, obligations and responsibilities which would pertain to any other corporation provided for by the treaty, doing exactly the same thing under the treaty. But as an incident to ownership, the vessels of the owner, used for its own purposes in connection with the project, could undoubtedly be passed. A corporation could pass its vessels used for canal purposes. Equally the United States as a sovereign passes its public vessels used for its own purposes. That is what this section means. But its qualifying phrases clearly exclude the vessels and commerce of all else than of the owner, the sovereign in the case of the United States. The article clearly grants rights to the vessels belonging to the sovereign and as clearly puts vessels belonging to the citizens of that sovereign on the same terms as vessels of the citizens of all nations.

"One of the principal arguments that the United States is not included within the terms of all nations observing these rules,' is that because the United States

is required to make and promulgate the rules, the treaty should not be construed as holding that the nation which makes the rules should be included within or bound by the rules to be promulgated by itself. This is clearly fallacious, because Article II provides that 'subject to the provisions of the treaty' the United States shall have the rights incident to such construction, and so forth. That, of course, applies the remaining portion of the treaty to the rights of ownership. The remaining portions of the treaty are Articles III and IV containing the rules framed upon the rules governing the Suez Canal. These rules at Suez and the similar ones at Panama embrace all vessels of commerce of all nations. An inspection of the rules themselves clearly shows that they do apply and were intended to apply to the United States.

"It must be admitted that the last sentence of Section 1, Article III, applies to the United States, such conditions and charges of traffic shall be just and equitable.' If not, then this nation can make unjust rules which would practically make the canal useless to the other nations. Again, the last sentence of Section 2 applies in terms 'the United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against lawlessness and disorder.' It is difficult to argue that such language does not apply to the United States. Section 5 provides that the provisions of this section shall apply to waterways adjacent to the canal within three marine miles of either end.' This was inserted because both Great Britain and the United States at various times had insisted that the three-mile limit might be extended under

certain conditions. It was agreed here clearly that the three-mile limit shall apply as one of the rules binding the United States in its treatment of the canal, except in time of war. Section 6 binds the United States itself in the time of war and peace to maintain the integrity of the canal plant. This is the main purpose of this section. So any reasonable examination of these rules clearly shows that they do apply to and bind the United States and were so intended when framed. One other thought in this connection: The preamble applies the general principle of neutralization to these rules, as set forth in Article VIII of the ClaytonBulwer treaty. This principle is for equality and equity of treatment of all-the essence of these rules. The preamble binds the whole treaty, and so the United States. Of course, as it has been heretofore stated, that in the time of war the treaty ceases to operate and the United States may adopt any means necessary for its defense and temporarily close the canal.

*

"In the construction of the controverted clauses of any document it is always of prime importance to know exactly what the persons themselves intended by the language which is subject to dispute; and when they have set forth their own ideas as to its intention and meaning and have given good reasons for it, usually such facts have been conclusive as to the construction whenever the language has fairly allowed.

"The negotiations for the modification of the ClaytonBulwer treaty and for the framing of the Hay-Pauncefote treaty were commenced by Secretary of State John Hay by a letter, December 7, 1898, to Hon. Henry White,

chargé at London, and the reply of Mr. White, of date December 22, 1898. * * *

"From these and other letters it appears in at least three different places that the first and necessary condition of a treaty must be that all vessels of all nations must receive in the use of the canal the same terms and treatment as American vessels. This condition was emphasized more than any other one provision, and descriptive references were forwarded to make it clear that such clause must include all vessels of all classes, foreign and coastwise, so there could be no mistake about the meaning of any language in the treaty.

"Secretary Hay and our Government readily agreed to such condition, and nobody objected to it, because it has always been the consistent, continuous and historic policy of our Government for more than fifty years to do that identical thing.

"So Secretary Hay, with the approval of President McKinley and the proper officials of the United States, prepared the Hay-Pauncefote treaty and submitted it to Great Britain. In it were placed the clauses, heretofore referred to, maintaining the general principle of 'equality and neutrality,' and expressly setting forth in as clear and explicit language as possible 'that the vessels of commerce and war of all nations should be treated on terms of entire equality, so that there shall be no discrimination against any nation, its citizens or subjects, in respect of the conditions or charges of traffic or otherwise.' Not a hint of any exception for our commerce, or any other exception; but on the contrary, the correspondence showed that all