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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 officials intended clearly and beyond question that all vessels, commerce and citizens must be treated exactly alike.'
“Surely this preliminary history, these negotiations, the language itself, the preamble and then the proclamation, in terms following and adopting the language, should be sufficient to show that no ambiguity or implication of any other meaning could possibly exist. In ordinary cases it would be sufficient, and no further question could be raised. But one additional fact still further re-enforces this history and construction.
"At that time the ambassador of the United States to Great Britain was the Hon. Joseph H. Choate. He was absent at the time the negotiations were commenced, but returned, and, of course, became intimately acquainted with the proceedings as to both treaties. In a recent address he has stated emphatically his own recollections and understanding of the occurrences at that time.
It is true that I had something to do with the negotiation of this treaty. In the summer of 1901—you will remember that this treaty was ratified by the Senate in November, 1901—I was in England until October and was in almost daily contact with Lord Pauncefote, who on his side represented Lord Lansdowne, the foreign secretary, and was also in very frequent correspondence with Mr. Hay, our Secretary of State, under whom I was acting. As the lips of both of these diplomatists and great patriots, who were each true to his own country and each regardful of the rights of the other, are sealed in death, I think it is quite proper that I should say what I believe both of them, if they were here, would say today—that the clause in the Panama Canal bill exempting coastwise American shipping from the payment of tolls is in direct violation of the treaty.
I venture to say now that in the whole course of the negotiation of this particular treaty no claim, no suggestion, was made
that there should be any exemption of anybody. How could there be in face of the words they agreed upon? Lord Pauncefote and John Hay were singularly honest and truthful men. They knew the meaning of the English language, and when they agreed upon the language of the treaty they carried out the fundamental principle of their whole diplomacy, so far as I know anything about it, and in the six years I was engaged with them their cardinal rule was to mean what they said and to say what they meant.
“Only a few weeks ago Hon. Henry White delivered an address in Washington, in which he clearly and strongly affirmed the terms stated in the original note and correspondence, that the intention always existed on the part of all the officials of both Governments that vessels of commerce of both and all nations should always be treated on terms of entire equality. This would include all trade-foreign and coastwise. Mr. White has a more intimate knowledge of the actual transactions than any living man, and his statement should be conclusive with fair and just men."
Senator Root's speeches of January 21, 1913, and May 21, 1914, are equal to the best forensic efforts in the United States Senate. In the excerpts therefrom which follow, the Senator advances a new argument for tollsexemption repeal which is sui generis.
ARTICLE III The United States adopts, as the basis of the neutralization of such ship canal, the following rules, substantially as embodied in the convention of Constantinople, signed the twenty-eighth of October, 1888, for the free navigation of the Suez Canal; that
is to say:
"1. 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