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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.”
"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.
“The kind of equality which the negotiators intended-that is, an equality in which the treatment of American citizens is made the standard for the treatment of foreign citizens-had during all the history of the Isthmian Canal efforts been the standard sought for in negotiations and treaties. That kind of equality was the standard adopted by the public policy of the United States for all similar enterprises. It was customary; it was uniform; it was natural for negotiators of a treaty relating to a canal. Let me illustrate that by referring to the initial treaty on this subject, the treaty of New Granada of 1846. When the American negotiators making that treaty dealt with the subject of a railroad and canal, what kind of equality did they stipulate for? Why, this:
The Government of New Granada guarantees to the Government of the United States that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall be open and free to the Government and citizens of the United States, and for the transportation of any articles of produce, manufactures or merchandise of lawful commerce belonging to the citizens of the United States; that no other tolls or charges shall be levied or collected upon the citizens of the United States of their said merchandise thus passing over any road or canal that may be made by the Government of New Granada or by the authority of the same than is, under like circumstances, levied upon and collected from the Granadian citizens.
“The message of President Polk transmitting this New Granada treaty of 1846 to Congress dwells especially upon the assurance to citizens of the United States of equal charges and equal facilities in the use of railroad and canal with citizens of New Granada.
"I go back again to the Clayton-Bulwer treaty of 1850. There is no doubt about the kind of equality which the negotiators considered it to be valuable to get, useful to get, natural to get.
"Article VIII provides that,
It is always understood by the United States and Great Britain that the parties constructing or owning the canal shall impose no other charges or conditions of traffic thereupon than are just and equitable, and that the same canals or railways, being open to the citizens and subjects of the United States and Great Britain on equal terms, shall also be open on like terms to the citizens and subjects of every other State.
“You will perceive, sir, that the terms on which citizens of other countries were to be allowed to come in were not terms of the most-favored nations as among themselves. They were on like terms with those which existed between Great Britain and the United States; that is to say, each other country which came in and adhered to this ClaytonBulwer treaty was to have the rights of its citizens measured by the rights accorded to the citizens of the United States and to the citizens of Great Britain.
“We are asked to believe that starting with the Clayton-Bulwer convention, which gave to Great Britain unquestioned assurance of the larger and more valuable equality of her vessels with the vessels of American citizens, in a negotiation with a country which in all its history had insisted regarding all canals that the measure of equality should be the measure of service and of charges to its national citizens, abandoned the vantage ground of the Clayton-Bulwer treaty and gave up that basis of equality without one word in the negotiation, without