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

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."

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"What is the 'entire equality' contemplated by Rule 1 of Article III of this treaty? Is it entire so that it assures equality in comparison with all ships engaged in the same trade similarly situated, the same kind of trade, or is it partial, so as to be equality in comparison only with certain ships engaged in the same kind of trade and not applying to other ships engaged in the same kind of trade, to wit, not applying to ships which are owned by American citizens?

"Is the kind of equality that is assured such that there will be no discrimination or that there will be no discrimination except against the ships of other nations and in favor of ships belonging to American citizens?

"Now, let us examine the question in the light of the circumstances which surrounded the making of this treaty and the conditions under which it was made. Treaties cannot be usefully interpreted with the microscope and the dissecting knife as if they were criminal indictments. Treaties are steps in the life and development of great nations. Public policies enter into them; public policies certified by public documents and authentic expressions of public officers. Long contests between the representatives of nations enter into the choice and arrangement of the words of a treaty. If you would be sure of what a treaty means, if there be any doubt, if there are two interpretations suggested, learn out of what conflicting public

policies the words of the treaty had their birth; what arguments were made for one side or the other, what concessions were yielded in the making of a treaty. Always, with rare exceptions, the birth and development of every important clause may be traced by the authentic records of the negotiators and of the countries which are reconciling their differences. So it is the universal rule in all diplomatic correspondence regarding international rights, in all courts of arbitration, that far more weight is given to records of negotiations, to the expressions of the negotiators, to the history of the provisions than is customary in regard to private contracts or criminal indictments.

"This question as to the kind of equality that the makers of this treaty intended to give divides itself very clearly and distinctly into a question between two perfectly well-known expedients of treaty making; one is the favored-nation provision, with which we are all very familiar in commercial treaties, and the other is the provision according to citizens of another country rights measured by the rights of the nationals or citizens of the contracting country. The most-favored-nation provision has its most common expression in the provision regarding tariff duties, a provision that no higher duties shall be charged upon goods imported from one foreign country than upon goods imported from other foreign countries. That is the common 'most-favored-nation clause.'

"A careful examination shows this to be a fact: That it is the universal rule, with rare exceptions, that wherever the rights of the citizens of a contracting country can be made the standard of equality for the citizens of another

country they are made so, and that recourse is not had to the most-favored-nation clause, except where that higher degree of equality is impossible because the citizens of the two countries occupy different relations to the business that is contemplated.

"So we have the question between these two kinds of equality clearly drawn and resting upon long experience of nations, a subject fully understood by the negotiators of this treaty upon both sides.

"We know now that the negotiators of this treaty, the men who made it, all understood that the larger equality was intended by its terms. Of course, what the negotiator of a treaty says cannot be effective to overthrow a treaty; but I think we must all start, in considering this question, with the assumption that the words are capable of two constructions. I think no one can deny that, in view of the differences of opinion which have been expressed here regarding their meaning. So here are words capable of two constructions, a broad construction and a narrow construction, but the fact that all the makers of the treaty intended that the words they used should have the larger effect is certainly very persuasive toward the conclusion that those words should receive the larger effect. Not only the American negotiators but the British negotiators as well so understood it. Whenever we seek. to impose upon these words a narrower construction for our own interests than the makers of the treaty understood them to have, we should remember the fundamental rule of morals that a promiser is bound to keep a promise in the sense in which he had reason to believe the promisee understood it was made. * * *