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THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 PRESENTED BY 
 
 PROF. CHARLES A. KOFOID AND 
 MRS. PRUDENCE W. KOFOID 
 
PANAMA CANAL TOLLS 
 
 THE TRADITIONAL POLICY OF THE UNITED STATES IN 
 RELATION TO WATERWAYS 
 
 SPEECH 
 
 OF 
 
 HON. THEODORE E. BURTON 
 
 OF OHIO 
 
 X THE 
 
 SENATE OF THE UNITED STATES 
 
 MAY 19, 1914 
 
 l:i !_'! 
 
 WASHINGTON 
 1914 
 
HE533 
 
 SPEECH 
 
 OF 
 
 HON. THEODORE E. BURTON. 
 
 The Senate, as in Committee of the Whole, had under consideration 
 the bill (II. It. 14385) to amend section 5 of an act to provi<l.> for th 
 opening, maintenance, protection, and operation of the Panama Caual 
 and the sanitation of the Canal Zone, approved August 24, 1912. 
 
 THE TRADITIONAL POLICY OF THE UNITED STATES IN RELATION TO 
 WATERWAYS. 
 
 Mr. BURTON. Mr. President, in support of the bill to repeal 
 the exemption of our coastwise shipping from the payment of 
 tolls in the Panama Canal three classes of arguments have been 
 earnestly and ably presented to the Senate. 
 
 First. That the Hay-Pauncefote treaty of 1901 requires en- 
 tire equality among nations, and consequently the exemption of 
 any shipping of the United States is a violation of its provi- 
 sions. It is further argued that even if the treaty in itself 
 does not forbid discrimination, at least when negotiations and 
 treaties made before and after are considered with it, the in- 
 hibition is absolutely conclusive. 
 
 Second. The economic argument that the exemption from 
 payment of tolls constitutes a subsidy, and that is not justified 
 by our laws, is contrary to the spirit of our institutions, and is 
 opposed by the party in power and by many adherents of the 
 Republican Party. In this connection it is maintained that the 
 exemption will, not materially benefit producer or consumer or 
 aid in reducing rates on transcontinental railroads. 
 
 Third. The opinion of other nations. It is alleged that this 
 opinion is practically unanimous against us. The President, 
 in his brief and forcible message, while regarding the exemption 
 as a mistaken economic policy from every point of view and in 
 plain contravention of the treaty with Great Britain, adds: 
 " The meaning of the treaty is not debated outside of the United 
 States. Everywhere else the language of the treaty is given 
 but one interpretation, and that interpretation precludes the 
 exemption." He also gives an intimation of " matters of even 
 greater delicacy and nearer consequence " with which he will 
 have difficulty in dealing unless the exemption act is repealed. 
 
 The distinguished Senator from Massachusetts has aptly 
 expressed this argument in quoting from the Declaration of 
 Independence the words, "a decent respect for the opinion> <>!' 
 mankind," to which he added, ''and the high position of the 
 United States among the nations of the world." 
 
 But in addition to these three, there is still a further argu- 
 ment equally potent in favor of repeal, and that is tli 
 diiional and practically uniform policy of the Unite:! States 
 in advocating yes, demanding the free and equal use of navi- 
 gable channels or walerwuj'S. Our policy in this regard is a# 
 4582813421 3 
 
4: 
 
 near to being invariable as upon any important national ques- 
 tion. It is much more constant than our record as regards the 
 relation of the Federal Government to the States or upon tariff 
 or foreign affairs. 
 
 Nations, like individuals, have their distinctive qualities, opin- 
 ions, and aspirations which shape their course and determine 
 their standing among the countries of the world. Thus their 
 movements may be forward or backward. They may advance 
 the cause of human liberty or retard its development. They 
 may promote international confidence or breed discord and 
 repulsion. 
 
 German idealism has given to nations the attribute of per- 
 sonality. The great Swiss-German publicist, Kluntschli, says: 
 
 Individual States differ like individual men in spirit, character, and 
 form. * * * While history explains the organic nature of the 
 State, we learn from it at the same time that the State does not stand 
 on the same grade with the lower organisms of plants and animals, hut 
 is of a higher kind ; we learn that it is a moral and spiritual organism, 
 a great body which' is capable of taking up into itself the feelings and 
 thoughts of the nation, of uttering them in laws, and realizing them 
 in acts ; we are informed of moral qualities and of the character of 
 each State. History ascribes to the State a personality which, having 
 spirit and body, possesses and manifests a will of its own. * * * 
 
 The recognition of the personality of the State is thus not less indis- 
 pensable for public law (Statsroeht) than for international law (Volker- 
 recht). 
 
 The United States from the very beginning insisted upon 
 certain fundamental principles, such as that all men are created 
 equal; that governments derive their just powers from the con- 
 sent of the governed. The basis of the demand for equal use 
 of channels is found in the essential ideas which actuated the 
 American Revolution. Liberty and equality of rights demanded 
 as a concomitant equality of opportunity and unrestricted prog- 
 ress. Progress and equality of opportunity require common 
 access to those utilities and agencies which are necessary for the 
 use and benefit of mankind. 
 
 Thus we see that from the very first our ancestors stren- 
 uously insisted upon the abolition of exactions and the removal 
 of restrictions which royal privilege had imposed or which had 
 been accepted as belonging to countries because of favorable 
 location or other advantages. Many of the colonists prior to 
 the Revolution had been actively engaged in trade and in com- 
 merce by sea. One of the accusations against King George III 
 in the Declaration of Independence is " for cutting off our 
 trade with all parts of the world." 
 
 In the report of the committee of the Continental Congress, 
 in response to the conciliatory resolution proffered by Lord 
 North in 1775, complaint was made that freedom of movement 
 had been denied to the ship;:, of the colonies. The report, sub- 
 mitted to Congress on July 25, 1775, is in the following language: 
 
 On the contrary, to show they mean no discontinuance of injury, they 
 pass acts, at the very time of holding out this proposition, for restrain- 
 ing the commerce and fisheries of the province of New England, and 
 for interdicting the trade of other colonies with all foreign nations and 
 with each othf r. This proves unequivocally they mean not to relinquish 
 the exercise of indiscriminate legislation over us. 
 
 ILLUSTRATIONS OF CLAIM OF NATURAL RIGHTS IN NAVIGABLE STREAMS. 
 
 This claim of a natural right was asserted by the Continental 
 
 Congress during the Revolutionary War in a demand made 
 
 upon Spain for the free navigation of the Mississippi River. 
 
 The domain of Spain then extended along the westerly bank 
 
 45S2S 13421 
 
of the Mississippi and on tin- easterly bank from liie mouth to 
 the pivs'.-iit northerly boundary of the State of Louisiana, paral- 
 lel ;;i of north latitude. On the. <ilh of August, in the year 177!), 
 the minister of the United States. .Mr. John Jay. was authorized, 
 by resolution 
 
 to conclude with France and Spain a treaty or treaties, offensive .-> 
 defensive, in whirh offensive or defensive treaty nevertheless you shall 
 insert on the part of your State a proper article or articles for obtain- 
 ing the free navigation of the River Mississippi. 
 
 The following month a. similar resolution was passed and 
 made the bnsis for instructions to Mr. Jay. The 'liability to 
 agree on this subject prevented the making of a treaty. Not- 
 withstanding the earnest desire for a treaty of friendship and 
 alliance with Spain, the Members of the Continental Congress 
 refused to enter into any engagement, however favorable, unless 
 the free navigation of tho Mississippi was assured. 
 
 On the 2d of October, 1780, Benjamin Franklin, in writing a 
 letter to Mr. Jay, said : 
 
 Poor as we are, yet as I know we shall be rich, I would rather agree 
 with them (Spain) to buy at a great price the whole of (heir right on 
 the? Mississippi than sell a drop of its waters. A neighbor might as 
 well ask me to sell my street door. 
 
 As the war was protracted and the success of the colonies 
 became less promising, the Congress became less Insistent. It 
 seems to have been the opinion 'that the river had been used by 
 the United States without trouble with Spain, aud there was 
 no reason to fear that the friendly disposition between the two 
 nations would be interrupted. The minister was authorized, in 
 1781, if he could not obtain the desired concession, to recede 
 from it. No final agreement, however, was entered into, and 
 the question was left open until the matter was again taken up 
 by Mr. Jefferson in the year 1792, to which I shall make refer- 
 ence later. 
 
 The next manifestation of this policy was before the adop- 
 tion of the Federal Constitution. In the negotiations for the 
 preliminary treaty of 1782 with Great Britain, October 8, 
 Benjamin Franklin and John Jay, commissioners on behalf of 
 the United States, submitted a draft, which contained the fol- 
 lowing provision : 
 
 Fourthly. That the navigation of the River Mississippi from its source 
 to the ocean shall forever remain free and open, and that both there 
 and in all rivers, harbors, lakes, ports, and places belonging to His 
 Britannic Majesty or to the United States, or in any part of the 
 world, the merchants and merchant ships of the one and the other 
 shall be received, treated, and protected like the merchants and mer- 
 chant ships of the sovereign of the country. That is to say, tho 
 British merchants and merchant ships, on the one hand, shall enjoy in 
 the United States and in all places belonging to them the same 'pro- 
 tection and commercial privileges and be liable only to the same charges 
 and duties as their own merchants and merchant ships: and. on the 
 other hand, the merchants and merchant ships of the United Stales 
 shall enjoy in all places belonging to His Britannic Majesty the 
 protection and commercial privileges and be liable only to the same 
 charges and daties of British merchants and merchant ships, saving 
 always to the chartered trading companies of tJreat Britain such 
 exclusive use and trade and their respective posts and establishments 
 as neither the subjects of CJrcat Britain nor any of the more favored 
 nations participate in. 
 
 This was refuse;!. 
 
 On April 29, 17s:;, the American commissioners p<- 
 Mr. Hartley, the British commissioner, an art.'cle for the pro- 
 4582813421 
 
6 
 
 posed final treaty giving equal rights to both nations in the navi- 
 gable waters of each. It was in the following language : 
 
 All rivers, harbors, lakes, ports, and places belonging to the United 
 Stales, or any of them, shall be open and free to the merchants and 
 other subjects of the Crown of Great Britain and their trading vessels, 
 who shall be received, treated, and protected like the merchants and 
 trading vessels of the States in which they may be and be liable to no 
 other charges or duties 
 
 And, reciprocally, all rivers, harbors, lakes, ports, and places under 
 the dominion of His Britannic Majesty shall thenceforth be open and 
 free to the merchant trading vessels of the said United States, and of 
 each and every of them, who shall be received, treated, and protected 
 like the merchants and trading vessels of Great Britain and be liable 
 to no other charges and duties, saving always to the chartered trading 
 companies of Great Britain such exclusive use and trade of their 
 respective ports and establishments as neither the other subjects of 
 Great Britain nor any of the most favored nations participate in. 
 
 It will thus be seen that a new and advanced principle with 
 reference to freedom of navigation that of entire equality in 
 the use of both national and international waters was pre- 
 sented by these eminent patriots, all of whom were so prominent 
 in the early days of this Eepublic and had so much to do in 
 shaping our institutions and policies. 
 
 May 21, 1783, Mr. Hartley made a counter proposition, which 
 only gave equality in import and export duties to the ships of 
 both countries. 
 
 The reason why the offer of the American commissioners was 
 not accepted is set forth very fully in the reply of Mr. Hartley, 
 the British commissioner, of May 21, 1783: 
 
 A proposition having been offered by the American ministers for the 
 consideration of His Britannic Majesty's ministers and of the British 
 nation for an entire and reciprocal freedom of intercourse and commerce 
 between Great Britain and the American United States in the following 
 words 
 
 Then follows the article suggested by the American commis- 
 sioners of April 29, 1783, given above : 
 
 It is to be observed that this proposition implies a more ample par- 
 ticipation of British commerce than the American States possessed even, 
 under their former connection of dependence upon Great Britain, so as 
 to amount to an entire abolition of the British act of navigation in re- 
 spect to the 33 United States of America, and although proceeding on 
 their part from the most conciliatory and liberal principles of amity and 
 reciprocity, nevertheless it comes from them as newly established States, 
 and who, in consequence of their former condition of dependence, have 
 never yet had any established system of national commercial laws, or of 
 commercial connections by treaties with other nations, free and unem- 
 barrassed of many weighty considerations, which require the most scru- 
 pulous attention and investigation on the part of Great Britain, whose 
 ancient system of national and commercial policy is thus suddenly 
 called upon to take a new principle for its foundation, and whose com- 
 mercial engagements with other ancient States may be most materially 
 affected thereby. For the purpose, therefore, of giving sufficient time 
 for the consideration and discussion of so important a proposition re- 
 specting the present established system of the commercial laws and; 
 policy of Great Britain and their subsisting commercial engagements 
 with foreign powers, it is proposed that a temporary intercourse of 
 commerce shall be established between Great Britain and the American. 
 States previously to the conclusion of any final and perpetual compact. 
 In this intervening period, as the strict line and measure of reciprocity, 
 from various circumstances, can not be absolutely and completely ad- 
 hered to, it may be agreed that the commerce between the two coun- 
 tries shall revive, as nearly as can be, upon the same footing and terms 
 as formerly subsisted between them, provided always that no concession 
 on either side in the proposed temporary convention shall be argued 
 hereafter in .support of any future demand or claim. In the meantime 
 the proposition above stated may be transmitted to London, requesting 
 (with II is Majesty's consent) that it may be laid before Parliament for 
 458128 13421 
 
their consideration^ * * * With regard in the West Indies, there is 
 no objection to tlii* must free intercourse between them and the United 
 States. The only restriction proposed to be laid upon that intercourse 
 is prohibiting Americ.-m ships rjirrying to those colonies any other m'-r- 
 d'aniiise than the produce of their own country. The same observation 
 limy b.' made upon this restriction ns upon the former. It is not meant 
 to affect the interests of the United States, but it is highly nee 
 lost foreign ships should make use of the American flag to carry on a 
 trade with the British West India Islands. 
 
 It is also proposed, upon the same principle, to restrain the ships 
 that may trade to Great Britain from America from bringing foreign 
 merchandise into Great Britain. The necessity of this restriction is 
 likewise evident, unless Great Britain meant to give up the whole navi- 
 gation act. There is no necessity for any similar restrictions on the 
 part of the American States, those States not having as yet any acts of 
 navigation. 
 
 In view of the insistence of Great Britain, the American com- 
 missioners were compelled to yield their contention. 
 
 The treaty was signed at Paris, September 3, 17S3, by John 
 A .la ins, lienjamin Franklin, and John Jay on behalf of the 
 United States, and by Mr. Hartley for Great Britain. 
 
 Article 8 is the only one which refers to navigation. It is as 
 follows : 
 
 The navigation of the River Mississippi from its source to its mouth 
 shall forever remain free and open to the subjects of Great Britain and 
 the citizens of the United States. 
 
 As regards the refusal to grant reciprocal use of channels, 
 Mr. John Adams, in his diary for Monday, May 19, 1TS3, volume 
 3 of his collected works, page 269, says: 
 
 Mr. Hartley informed us to-day that the King's council had not 
 agreed to our proposition of putting Britons upon the footing of Ameri- 
 cans in all American ports, rivers, etc., and Americans on the footing 
 of Britons in all British ports, rivers, etc. He says he is sorry for 
 this, because he thinks it just and politic, and he shall ever be in 
 Parliament for bringing things to this point. 
 
 At a later time the question of the navigation of that portion 
 of the Mississippi River flowing through the territory belong- 
 ing to Spain was again raised. Mr. Jefferson, then Secretary 
 of State, claimed the right to equal navigation by boats of the 
 United States as a natural right, and in his report in 1792 on 
 nopiliutions with Spain regarding a treaty relative to the navi- 
 gation of the Mississippi River he said: 
 
 If we appeai to this as we feel it written in the heart of man. what 
 sentiment is written in deeper characters than tint the ocean is free 
 to all men and the rivers to all their inhabitants? Is there a man. 
 or civilized, unbiased by habit, who does not feel and attest 
 this truth? Accordingly, in all tracts of country united under the same 
 political society we find this natural right universally acknowledged 
 and protected by laying the navigable rivers open to all their inhabit- 
 ants. . When their rivers enter the limits of another society, if the 
 right of the upper inhabitants to descend the stream is in any case 
 obstructed, it is an act of force by a stronger society against a weaker, 
 condemned by the judgment of mankind. 
 
 In a treaty framed in 1795 equal use of the Mississippi River 
 was provided for both nations in the portions flowing through 
 territory belonging to Spuin south of the thirty-first parallel 
 of north latitude: also in that, part which served as the western 
 boundary of the United States. This treaty was ratified in the 
 year 1700, during the administration of President Washington. 
 In the following decade Madison, then Secretary of State under 
 President Jefferson, made the same claim with reference to 
 streams east of the Mississippi passing from the United States 
 through the Floridas. 
 _s 1:5 m 
 
8 
 
 Iu a letter dated March 2, 1803, addressed to Messrs. Liv- 
 ingston and Monroe, our representatives in France, he says : 
 
 The United States have a just claim to the use of the rivers which 
 pass from their territory through the Floridas. They found their 
 claims on like principles with those which supported their claims for 
 the use of the Mississippi. 
 
 For a long time prior to the beginning of the nineteenth cen- 
 tury the Barbary States had been imposing tribute upon vessels 
 passing through the Strait of Gibraltar. Their location made it 
 easy for them, by piratical excursions, to capture merchantmen 
 passing to and from the Mediterranean, and in settlement spe- 
 cific amounts were agreed upon. One singular feature of this 
 situation was that Great Britain gained an advantage from the 
 conditions existing, as her subjects were able to pay $200,000 annu- 
 ally in the way of tribute, while the other countries were unable 
 to meet the demands. Our trade with Mediterranean ports was 
 ve-y considerable. Our shipping had been subjected to these 
 exactions and payments had been made in the form of ransoms 
 for prisoners taken, presents, and otherwise. The amount of 
 these payments, according to a report of the Secretary of the 
 Treasury, amounted to $2,046,000, July SO, 1802. We demanded 
 that our ships have free access to the Mediterranean without 
 the payment of tribute, and engaged in a naval war which, in 
 the heroism displayed, is one of the most notable pages in the 
 history of the American Navy. Our contention for the free use 
 of this strait and for undisturbed navigation of the Mediter- 
 ranean was conceded by the Barbary States. The courageous 
 stand of this Republic for the rights of our shipping and for 
 the freedom of commerce inured to the benefit of all the com- 
 mercial nations of the globe. 
 
 In the meantime the right of free and equal navigation of 
 international rivers and waterways began to be asserted in 
 Europe. This right had been maintained by the Romans and 
 was affirmed in the institutes of Justinian, but was generally 
 denied after the ninth century. Although Grotius had main- 
 tained the principle of equal use of rivers, a contrary view 
 prevailed in Europe until the French Revolution. The French 
 Republic sought to open the Rhine and other rivers to the free 
 navigation of nations bordering upon it. 
 
 The treaty of Paris, May 30, 1814, after the fall of Napoleon, 
 went much further, and laid down the rule of free navigation 
 not solely for bordering States but for all States. This rule 
 was definitely established for the Rhine, and the treaty pro- 
 vided that in a future congress the general principle should be 
 considered of extending the same rule to all other streams 
 which in their navigable course separated or traversed different 
 states. 
 
 At the congress of Vienna, in the following year, articles 108 
 to 116, the general principle was laid down. On the 3d of May, 
 1815, a treaty between Austria and Russia declared the naviga- 
 tion of the rivers and canals of the ancient Kingdom of Poland 
 to be free, so as not to be interdicted by any inhabitant of the 
 Polish Provinces subject to either the Russian or Austrian 
 Governments. There was a similar treaty between Russia and 
 Prussia touching the waterways of Poland. In 1815 and 1821 
 treaties were entered into between Prussia and other States 
 relating to the navigation of the Elbe. In 1856 the countries 
 4582813421 
 
bordering on the Danube provided for freedom of navigation 
 upon it. Similar treaties were entered into in regard to the 
 Po between Austria and two States of Italy. The river Douro, 
 by a treaty between Portugal and Spain of August 31, 1835, 
 was declared to be free. The treaty of Berlin, in 1885, pro- 
 claimed the principle of liberty and equality in the largest 
 degree for the Kongo and the Niger, express!? extending the 
 agreement not merely to rivers, large and small, but to lakes, 
 the canals connecting them, and still further, to highways and 
 railways connecting with these waterways. 
 
 The settled contention of the United States was again main- 
 tained during the administration of President Monroe. The 
 administration in 1823 began negotiations with Great Britain 
 relative to the right of inhabitants of the United States to navi- 
 gate tlie St. Lawrence. It was stated that this right had never 
 been discussed with Great Britain, but was referred to as one 
 which might be established upon the " general principles of the 
 law of nature." Mr. Adams, the Secretary of State, in his in- 
 structions to our embassy at London, declared the United States 
 bound to maintain for its people in Michigan, Illinois, and so 
 forth, "the natural right of communicating with the ocean by 
 the only outlet provided by nature from the waters bordering 
 upon their shores." lie admitted that possession of both shores 
 and the'mouth had been held to give the right of obstructing or 
 interdicting navigation to the people of other nations, but 
 claimed that the river was "a right of nature preceding it in 
 point of time and which the sovereign right of one nation can 
 not annihilate as belonging to the people of another." He cited 
 the acts of the congress of Vienna declaring navigation of 
 various rivers " free to all nations." Great Britain, however, 
 was willing to treat the claim as a concession for which an 
 equivalent must be obtained. 
 
 Under the reciprocal treaty of 1854, terminated March 17, 
 18G6. the right of reciprocal navigation of the St. Lawrence was 
 gran Led and in return therefor Lake Michigan was opened to 
 British subjects, together with an engagement on the part of 
 cur Government to urge upon the State governments the use of 
 several State canals on terms of equality. The treaty of 1871 
 again gave the right of navigating the St. Lawrence and the 
 Canadian canals, and the British subjects were given a like 
 right to the use of American canals. These rights were con- 
 Jinned in the more recent treaty of 1909-10 relating to boundary 
 waters between the United States and Canada. 
 
 The United States was the country most insistent upon ex- 
 emption from tolls charged by the Danish Government on ves- 
 sels and cargoes passing through the sound and the two 
 belts which form a passage from the North Sea into the Baltic. 
 These tolls had been imposed on the ground of immemorial 
 usage, beginning in the fourteenth century and sanctioned by a 
 long succession of treaties. The passage through the strait was 
 aided by lights upon Danish territory, and the course of vessels 
 \v;is within cannon shot of land owned by Denmark on both 
 sides. 
 
 ruder a treaty concluded in 1820 the United States received 
 for its vessels and their cargoes the mosf-t'avoretl-nation treat- 
 ment under a provision that our ships should not pay higher 
 or other duties than those paid by other countries; but in the 
 4582813421 
 
10 
 
 year 1844, under the administration of President Tyler, Mr. 
 Oalhoun, then Secretary of State, maintained that Denmark 
 had no right to levy duties on vessels passing through the 
 sound from the North Sea to the Baltic, that such a Charge 
 was contrary to the public law of nations under which the navi- 
 gation of the two seas connected by the straits should be free 
 to all nations and therefore the navigation of the channel by 
 which they are connected ought also to be free. He maintained 
 that the foundation of the claim was made in a " remote and 
 barbarous age, even before the discovery of America." It ap- 
 pears that in a preceding period of 16 years, 1828 to 1843, both 
 inclusive, the average annual amount collected from American 
 shipping was $107,467.71, and in addition there were other 
 charges for " light money," and so forth. The amount of the ton- 
 nage of American ships going through the sound during a year 
 was about 21,000 tons, both going and returning. Negotia- 
 tions continued for a considerable time and in the year 1857 a. 
 treaty was framed under which the navigation of the sound 
 and belts was declared free to American vessels on payment of 
 $393,000. 
 
 There has been much diplomatic correspondence in regard to 
 rivers in South America. Most of the countries in that conti- 
 nent have shown a liberal policy in opening their rivers to navi- 
 gation for the merchant vessels of all nations. A decree to that 
 effect was issued by the Argentine Confederation on the 3d of 
 October, 1852, relating to the Rivers Parana and Uruguay. 
 Mr. Secretary Clayton, in 1850, stated that the Department of 
 State had for some time past in contemplation measures for 
 procuring for the citizens of the United States the navigation 
 of the River Amazon and some of its tributaries. 
 
 Bolivia, in 1853, declared its navigable waters free to the 
 commerce and navigation of all nations of the globe. Brazil 
 for a time opposed, and Secretary Marcy, under President 
 Pieree's administration, sought the removal of restrictions upon 
 the navigation of the Amazon. In a letter to our minister to 
 Brazil he said : 
 
 Tho most important object of your mission, an object to which you 
 will devote your early and earnest efforts, is to secure to the citizens 
 of the United States the free use of the Amazon. * * * The re- 
 stricted policy, which it is understood Brazil still persists in maintaining 
 in regard to navigable rivers pa-ssing through her territory, is the relic 
 of an age less enlightened than the present. * * * You are in- 
 structed to claim for our citizens the use of this natural avenue of 
 trade. This right is not derived from treaty stipulations. It is a 
 natural one, as much so as that to navigate the ocean, the common 
 highway of nations. 
 
 A treaty was framed by Bolivia in 1858 in which that State 
 declared the River Amazon and the River L*a Plata, with their 
 tributaries, to be highwaj^s or channels opened by nature to the 
 commerce of all nations. The Government of Brazil, by a 
 decree of December 7, 1886, opened the navigation of the 
 Amazon to the vessels of all nations from September 7, 1867. 
 In 1868 the President of Peru issued a decree declaring the 
 navigation of all the rivers of that Republic open to merchant 
 vessels, whatever their nationality. 
 
 In the year 1878 it was reported to the State Department 
 that the Argentine Republic and Chile were proposing to ex- 
 clude foreign ships from free passage through the Straits of 
 
 45828 13421 
 
11 
 
 Magellan. On tliis subject Mr. Secretary Evarts wrote to our 
 minister, Mr. Osborn, on the 18th of January, 1879: 
 
 The (Jovernmenl of the United States will not tolerate exclusive 
 claim by any nation whatsoever to the Straits of Magellan and will 
 hold responsible any government that undertakes, no matter on what 
 ju-ci ext, to lay any impost or check oil United States commerce through 
 these straits. 
 
 Other conn tries protested also, and as a result a treaty was 
 entered into between the Argentine Republic and Chile oil the 
 13th of June, 1888, which provides in article 15 that 
 
 The Magellan Straits are neutralized forever and free navigation Is 
 guaranteed to the flags of all nations. To insure this neutrality no 
 fortifications or military defenses shall be created that could interfere 
 with I. his object. 
 
 I have not by any means given all the instances in which, 
 by diplomatic correspondence or otherwise, the United States 
 lias insisted upon the free and equal use of navigable channels, 
 nor have we refused to grant the same privilege to other na- 
 tions. In the year 1871 equality was granted in the Yukon, the 
 Porcupine, and the Stikine Rivers, flowing from the British 
 possessions into Alaska. The foregoing, however, show a uni- 
 form policy, to which there have been but insignificant excep- 
 tions. For example, prior to the abolition of tolls on the Erie 
 Canal in the year 1882 the State of New York imposed higher 
 charges in the canal upon salt mined in Canada than upon that 
 mined in the State of New York. This was a protective measure 
 of a very drastic character, and was actuated, no doubt, by 
 the fact that the State of New York owned salt mines near 
 Syracuse. The correspondence of Mr. Elaine in regard to a 
 closed sea in the neighborhood of the Pribilof Islands is another 
 apparent exception. 
 
 The stand taken at that time was due to the very exceptional 
 conditions existing. 
 
 In the treaty of cession of Alaska the boundary line was a long 
 distance from the shore, and for the preservation of the seal 
 herds on the islands it was thought essential to control a 
 large section of the sea outside of the 3-mile limit because of 
 the habits of the seal. Our contention in this regard was sub- 
 mitted to arbitration and the decision was unfavorable to the 
 United States. In 1892 Secretary of State Foster maintained 
 that the Hudson River was exclusively a national stream, and 
 that the natural right of navigation did not exist. It must 
 be said that this latter contention is not altogether in line with 
 our general policy. 
 
 This opinion was in response to a claim on the part of 
 Canada of the right to send boats from the Champlain Canal 
 down the Hudson to its mouth. Canada gave our refusal to 
 accept this claim as a reason for the discriminatory regulations 
 in regard to the Welland Canal and other waters, which gave 
 rise to the controversy of 1SSS-1892. 
 
 DECLARATIONS OF TUB UNITED STATES MADE IN CONTEMPLATION OP TUB 
 CONSTUUCTION OF AX ISTHMIAN CANAL. 
 
 It is not necessary for us to rely upon precedents of a general 
 nature. The most conclusive proof of the policy of the United 
 States is to be found in the action of this Senate, the House, 
 and of Presidents and Secretaries of State in relation to the 
 very project under consideration, namely, the construction of an 
 45828 13423 
 
12 
 
 isthmian canal connecting the Caribbean Sea with the Pacific 
 Ocean. The intention to make this artificial waterway open 
 to all nations on terms of entire equality has been manifested 
 in the most unequivocal language, not only by the executive and 
 legislative departments of the Government but by men of all 
 political parties, Democratic, Whig, and Republican, and that, 
 too, in the life of almost every administration which has had 
 this subject under consideration during nearly 90 years. There 
 lias been hardly a dissenting note in all this period except in 
 the act of 1912. 
 
 After independence had been achieved by the Central and 
 South American Republics it was proposed to hold a conference 
 on the Isthmus of Panama. Messrs. Anderson and Sergeant 
 were chosen delegates to this proposed gathering, though they 
 were unable to attend. Instructions were framed for them by 
 Henry Clay, then Secretary of State under John Quincy Adams. 
 Mr. Clay was so proud of these instructions that when, in his 
 declining years, his friends proposed to prepare a medal in com- 
 memoration of his political career, he chose the words " Panama 
 instructions " for one inscription upon this medal as commemo- 
 rating one of the most notable acts of his whole life. The fol- 
 lowing is the direction which he gave to the delegates, Messrs. 
 Anderson and Sergeant, in regard to a proposed canal : 
 
 A cut or a canal for purposes of navigation somewhere through the 
 isthmus that connects the two Americas to unite the Pacific and Atlan- 
 tic Oceans will form a proper suhject of consideration at the congress. 
 That vast object, if it should he ever accomplished, will he interesting 
 in a greater or less degree io all parts of the world. But to this conti- 
 nent will probably accrue the largest amount of benefit from its execu- 
 tion,, and to Colombia, Mexico, the Central Republics, Peru, and the 
 United States more than to any other of the American nations. What 
 is to redound to the advantage of all America should be effected by 
 common means and united exertions and should not be left to the sepa- 
 rate and unassisted efforts of any one power. * * * If tJie work 
 should ever be executed so as to a (1m it of tire passage of sea i:esscls 
 from ocean io ocean, the benefits of it oit</ht not to lie exclusively appro- 
 priated to any one nation, but should be extended to all parts of the 
 globe upon the payment of a just compensation or reasonable tolls. 
 
 It is well to notice in this connection that the fear the 
 Monroe doctrine may be interfered with by granting equal 
 rights as to tolls on ships passing through the Panama Canal 
 must be without foundation. John Quincy Adams, as Secre- 
 tary of State in the Cabinet of President Monroe, had been 
 most prominent in formulating the principles which consti- 
 tuted the so-called Monroe doctrine. Barely four years later, 
 after he had become President, his Secretary of State, un- 
 doubtedly with his approval, wrote instructions to the effect 
 that the benefits of the proposed canal ought not to be exclu- 
 sively appropriated to any one nation, but should be extended 
 to all parts of jthe globe. 
 
 In the year 1835, during the administration of President 
 Jackson, the Senate of the United States unanimously adopted 
 a resolution, as follows : 
 
 Resolved, That the President of the United States be respectfully 
 requested to consider the expediency of opening negotiations with the 
 Governments of other nations, and particularly with the Governments 
 of Central America and New Granada, for the purpose of effectually 
 protecting, by suitable treaty stipulations with them, such individuals 
 or companies as may undertake to open a communication between the 
 Atlantic and Pacific Oceans by the construction of a ship canal 
 across the isthmus which connects North and South America, and of 
 securing forever by such stipulations the free and equal right of navi- 
 4. r >S28 13421 
 
13 
 
 f>iic7i cannl in nil aucli nations on tho payment of such rensnn- 
 ablc tolls as may be f'staMished to compensate tli" capitalists who 
 may engage In such undertaking and complete the work. 
 
 Mr. Charles Bicldle was appointed in pursuance of this reso- 
 lution by President Jackson and obtained from the Government 
 of New Granada an exclusive grant to the citizens of the United 
 States to construct a canal. Mr. Biddle's action was expressly 
 disavowed. 
 
 During the administration of President Van Buren, in a re- 
 port to the House of Representatives March 2, 1839, Mr. Mercer, 
 of Virginia, from the Committee on Roads and Canals, stated : 
 
 The policy is not less apparent which would prompt the United 
 States to cooperate in this enterprise, liberally and efficiently, before 
 other disposition may he awakened in the particular State within whose 
 territory it may be ceded or other nations shall seek by negotiations 
 1o <>n/ross a commerce which is now anil should ever continue open 
 to all. 
 
 In the same year the House of Representatives by unanimous 
 vote adopted a resolution much the same as that of the Senate 
 in 1835, requesting the President 
 
 to consider the expediency of opening or continuing negotiations 
 with the Governments of other nations, and particularly with those 
 the territorial jurisdiction of which comprehends the Isthmus of 
 Panama, and to which the United States have accredited ministers or 
 agents, for the purpose of ascertaining the practicability of effecting 
 a communication between the Atlantic and Pacific Oceans by the con- 
 struction of a ship canal across the Isthmus and of securing forever 
 ~by suitable treaty stipulations the free and equal right of navigating 
 such canal Ity all nations. 
 
 In a letter to Mr. Buchanan, Secretary of State, on Decem- 
 ber 17, 1845, the commissioner accredited to examine a canal 
 route said : 
 
 Like all other international questions, it can only be satisfactorily 
 adjusted by concert with the other maritime powers which have simi- 
 lar interests, more or less important, and whose assent is necessary 
 to place the proposed passage under the protection and guaranty of 
 the public law. recognized by the whole world. 
 
 On the conclusion of the treaty with New Granada in 1846 
 President Polk submitted it to the Senate with a message, in 
 which he said : 
 
 In entering into the mutual guaranties proposed by the thirty-fifth 
 article neither the Government of New Granada nor that of the United 
 States has a narrow or exclusive view. The ultimate object, as pre- 
 sented by the Senate of the United States in their resolution (Mar. 3, 
 1835), to which I have already referred, is to secure to all nations the 
 free and equal right of passage over the Isthmus. 
 
 Iii the meantime conditions had arisen which had an impor- 
 tant bearing upon the question of an isthmian canal. In the 
 year 1S4G our forces had taken possession of California, and it 
 was evident a great area fronting on the Pacific coast would be 
 annexed to the United States. Communication with California 
 was regarded as a matter of immediate and pressing importance, 
 especially as the route overland was exceedingly difficult. The 
 desire for a canal was naturally very much intensified. The 
 treaty with New Granada, which provided for a route across 
 the Isthmus, was concluded in December, 184G, but was not 
 ratified by the Senate until June 3, 1848. In the meantime the 
 treaty of Guadalupe-Hidalgo had been ratified, and California 
 was an assured portion of the United States. 
 
 In the consideration of routes the Nicaragua n route had 
 gained in favor in comparison with the route across the Isthmus 
 of 1 'ana ma. The situation which confronted ns was that Kng- 
 4082813421 
 
14: 
 
 land had possession of that part of the coast of Nicaragua and 
 Costa Rica in which lay the Atlantic terminus of the proposed 
 route through Nicaragua ; also Great Britain maintained a 
 naval squadron in the West Indies, and then, as now, possessed 
 important islands. All these circumstances gave her a great 
 advantage in any plan for a route between the two oceans. 
 Thus it was not Great Britain but the United States which at 
 that time was endeavoring to secure absolute neutrality and 
 eqtiality for the isthmian route. 
 
 From the beginning our traditional policy had favored no 
 discrimination in the enjoyment of straits, canals, and rivers, 
 and in this particular instance our interests reenforced that 
 traditional policy. Negotiations from this time on can not be 
 understood without taking into account the desire to obtain 
 under manifest disadvantages equality of treatment in any route 
 across the Isthmus. 
 
 In the next administration, that of President Taylor, our 
 Secretary of State, Mr. Clayton, opened negotiations with Great 
 Britain with a view to adjusting the differences between the 
 two countries, Mr. Rives, our minister to France, being ap- 
 pointed to submit the views of the United States to Lord 
 Palmerston. Mr. Rives, in his letter to Secretary Clayton of 
 September 25, 1849, describes his interview with Lord Palmers- 
 ton and states that in pursuance of his instructions he had said 
 to him : 
 
 That the United States, moreover, as one of the principal commercial 
 powers of the world, and the one nearest to the scene of the proposed 
 communication, and holding, besides, a large domain on the western 
 coast of America, had a special, deep, and national interest in the free 
 and unobstructed use, in common with other powers, of any channel of 
 intercourse which might be opened from the one sea to the other ; 
 
 * that the United States sought no exclusive privilege or prefer- 
 ential right of any kind in rcf/ard to tlie proposed communication, and 
 their sincere wish, if it should ~be -found practicable, was to see it dedi- 
 cated to the common iise of all nation* on the most liberal terms and 
 a footing of perfect equality for all; * * * that the United States 
 would not, if they could, obtain any exclusive right or privilege in a 
 great highway which naturally belonged to all mankind, * * * 
 
 President Taylor in his first annual message to Congress, De- 
 cember 4, 1849, said: 
 
 * * * All States entering into such a treaty will enjoy the right 
 of passage through the canal on payment of the same tolls. The work, 
 if constructed under these guaranties, will become a bond of peace in- 
 stead of a subject of contention and strife between the nations of the 
 earth. Should the great maritime States of Europe consent to this 
 arrangement (and we have no reason to suppose that a proposition so 
 fair and honorable will be opposed by any), tho energies of their people 
 and ours will cooperate in promoting the success of the enterprise. 
 
 * Should such a work be constructed under the common pro- 
 tection of all nations, for equal benefit to all, it would be neither just 
 nor expedient that any great maritime State should command the com- 
 munication. The territory through which the canal may be opened 
 ought to be freed from the claims of any foreign power. No such 
 power should occupy a position that would enable it hereafter to exer- 
 cise so controlling an influence over the commerce of the world or to 
 obstruct a highway ivhich ought to be dedicated to the common use of 
 mankind. 
 
 Iii a letter to Lord Napier, the British minister, September 
 10, 1857, Mr. Lewis Cass, Secretary of State under President 
 Buchanan, said: 
 
 While the rights of sovereignty of the local governments must al- 
 ways be respected, other rights also have arisen in the progress of 
 events involving interests of great magnitude to the commercial world 
 and demanding its careful attention and, if need be, its efficient pro- 
 45828 13421 
 
15 
 
 tection. In view of these interests .and after having invited capital 
 ;iiui enterprise from other countries to aid in the opening of these; 
 great highways of nations under pledges of free transit to all desiring 
 it, it can not be permitted that these Governments sJioitld exercise over 
 tliem an arbitrarily and unlimited control or close them or embarrass 
 Ilicin without reference to tlic wants of commerce or of the intercourse 
 of the world. Equally disastrous would it be to leave them at the 
 mercy of every nation which in time of war might find it advantageous 
 for hostile purposes to take possession of them and either restrain their 
 use or suspend it altogether. 
 
 The President hopes, by the general consent of the maritime powers, 
 all such difficulties may be prevented and the interoceanic lines, with 
 the harbors of immediate approach to them, may be secured beyond 
 interruption to the great purposes for which they Were established. 
 
 Ill 18G2 there was a disturbance upon the Isthmus of Panama 
 which we were called upon to pacify. The note of Mr. Seward, 
 then Secretary of State under President Lincoln, to Mr. Adams 
 is particularly significant, because by the treaty of 1840-1 S4S 
 with New Granada w3 had absolutely equal privileges with 
 that country in traffic across the Isthmus. Further, an ob- 
 ligation rested upon us by the same treaty, article 35, to main- 
 tain order there, yet Mr. Seward claimed no special privileges 
 for the United States. In his note to Mr. Adams, our minister 
 to London, he said, in speaking of the disturbances which had 
 occurred : 
 
 This Government has no interest in the matter different from that 
 of other maritime powers. It is willing to interpose its aid in execu- 
 tion of its treaty and further equal Leueiit of all nations. 
 
 And again, during the term of President Johnson, under date 
 of January 18, 1801), Secretary Seward expressed himself in the 
 same manner. 
 
 In the administration of President Grant, Secretary Fish wrote : 
 
 * * * A Darien Canal should not he regarded as hostile to a 
 Suez Canal ; they will not be so much rivals as joint contributors to 
 the increase of the commerce of the world, and thus mutually advance 
 each other's interests. * * * We shall * " * he glad of any move- 
 ment which shall result in the early decision of the question of the most 
 practicable route and the early commencement and speedy completion 
 of an interoceanic communication which shall he guaranteed in its 
 perpetual neutralization and dedication to the commerce of all nations, 
 without advantages to one over another of those who guarantee its 
 assured neutrality. * * * 
 
 * * * the benefit of neutral waters at the ends thereof for all 
 classes of vessels entitled to fly their respective flags, with the cargoes 
 on board, on equal terms in every respect as between each other. 
 
 About the year 1880 the opinion became prevalent that what- 
 ever canal might be constructed should be under the exclusive 
 supervision and protection of our own country. This view was 
 maintained by President Hayes. An attempt was made soon 
 after to repudiate the Clayton-Btilwer treaty. Notwithstanding 
 this change of opinion, equality among nations was promised by, 
 us as distinctly as theretofore. 
 
 Secretary Blaine, Secretary of State under the administra- 
 tion of President Garfield, in 1881, in two letters gave the fol- 
 lowing instructions to Mr. Lowell, our minister to England : 
 
 First, that of June 24, 1881: 
 
 "Nor, in time of peace, docs the United States seek to Uavc anil ex- 
 rlnxire; privileges accorded to American ships in respect to precedence 
 or tolls, throuyh an interoceanic canal any more than it Jias sou)ht like 
 j>riril((/es for American yuuds in transit over the Panama Railway. 
 under the exclusive control of an American corporation. The extent of 
 the privileges of American citizens and ships is measurable under the 
 treaty of 18-10 by those of Colombian eitixens and ships. It would 
 be ottr earnest desire and expectation to sec the world's peaceful com- 
 merce ciijo;/ tin: *amc just, liberal, and rational treatment. 
 4582813421 
 
16 
 
 It should be noted that at that time the Panama Railway, an 
 American corporation, was available for the commerce of all 
 nations, without any discrimination whatever. Mr. Elaine pro- 
 poses that the policy of the United States in regard to tolls shall 
 be the same as that of the Panama Railway, which charged 
 equal rates for all. 
 
 Second, that of November 19, 1SS1 : 
 
 In assuming as a necessity the political control of whatever canal 
 or canals may be constructed across the Isthmus, the United States 
 will act in an entire harmony with the Governments within whose 
 territory the canals should be located. Between the United States' 
 and the other American Republics there can be no hostility, no jealousy, 
 no rivalry, no distrust. This Government entertains no design in con- 
 nection with this project for its advantage which is not also for the 
 equal or greater advantage of the country to be directly and immedi- 
 ately affected ; nor does the United States seek any exclusive or narrow 
 commercial advantage. /* frankly agrees, and will by public proclama- 
 tion declare at the proper time, in conjunction with the Republic on 
 whose soil the canal may be located, that the same rights and privileges, 
 the same tolls and obligations for the use of the eanal sliall apply 
 icitJi absolute impartiality to the merchant marine of every nation on 
 the globe and equally, in the time of peace, the harmless use 'of the canal 
 shall be freely granted to the war vessels of other nations, 
 
 Lord Grauville replied as follows: 
 
 * * * such communication concerned not merely the United 
 States or the American Continent, but, as was recognized by article 
 of the Clayton-Bulwer treaty, the Ayhole civilized v.'orld, and that she 
 would not oppose or decline any discussion for the purpose of secur- 
 ing on a general international basis its universal and unrestricted 
 use. * * * 
 
 President Cleveland, in his first annual message to Congress, 
 said : 
 
 * * * "Whatever liiyhwaij may be constructed across the barrier 
 dividing the two greatest maritime areas of the world must be for the 
 world's benefit a Inist for mankind, to be removed from the chance of 
 domination by any single power, nor become a point of invitation for 
 hostilities or a prize for warlike ambition. * * * These sugges- 
 tions may serve to emphasize what I have already said on the score of 
 the necessity of a neutralization of any interoceanic transit ; and this 
 can only be accomplished by making the uses of the route open to all 
 nations and subject to the ambitions and warlike necessities of none. 
 
 In the second administration of President Cleveland Secretary 
 of State Olney made the following memorandum : 
 
 * * * That the interoceanic routes there specified should, under 
 the sovereignty of the States traversed by them, be neutral and free to 
 all nations alike. * * * 
 
 Then, in speaking of the Clayton-Bulwer treaty, he said : 
 
 * * * Under the circumstances, upon every principle which gov- 
 erns the relations to each other, either by nations or of individuals, 
 the United States is completely estopped from dens'ing that the treaty 
 is in full force and vigor. 
 
 It may be said that most of the above declarations were made 
 when it was anticipated that the canal would be built by pri- 
 vate capital. While no possible reason can exist for a change 
 in the principles applicable in case the canal should be built by 
 our Government, the following declarations were made after the 
 time when it was contemplated that the United States should 
 build and operate the canal. 
 
 There was no more decisive note in favor of neutrality and 
 
 equality than that uttered by Senator Davis, then chairman of 
 
 the Committee on Foreign Relations, and announced after it 
 
 was decided that the building and operation of the canal should 
 
 4582813421 
 
IT 
 
 bo a n.-HI'.nal enlerjir' whole of his report should be 
 
 read, but the following arc , i'oitions: 
 
 In the origin of our .!c and 
 
 our : rmies, mails, and < i he canal, 
 
 WC 1 1;> the 
 
 ';ilil.v and the . ! of the canal a a to 
 
 universal use, llu 1 f incurporaied in th-> cinytou- 
 
 Knhver i: :i by 
 
 it Britain. In i> 
 
 intimated an objection i ttouot <!' the features of 
 
 mv ; trai;ty. its ('-pY^l ;md 5^>:>aN^l u.^'bv all other nations. * * : No 
 
 fican slaic-'i'ian, speakintr with oflicial a I-'ity, 
 
 ;'nitf j d Hi. 
 
 thi.--, canal ]<)! the cxrlusiv,; b:-:ielit of our Government or people. They 
 
 hav all, with one accord, declared that the itral 
 
 Bd in time :d always <'i" : 'i on ien.is of impariiMl equity 
 
 of (he world. * * * Ti;e i - | can 
 
 not take an attitude of opposition to the principles of the .srre.it act of 
 
 her lii.'. INNS, without dis.'.-redHin.L;- the ollicial ' onv 
 
 ;;t for HO years on the neutrality of an Isthmian Canal, nnd 
 
 use by al! nations without di ' *n. To set up 
 
 Isk motive of gain by establishing a monopoly of a h'i^hvvay that 
 
 re its income from the ])iit.rona^e of all 
 
 would be of the United States if we owii a try 
 
 ;;<h which the canal is to be built. * * * The Suez Canal ruak 
 
 :ti.-m in its tolls in favor of its K; rs ; and, ta1 
 
 its profits, or the half of them, as our hnsi Nation, we will 
 
 never find it necessary to differentiate our rates of toJl in far 
 our own people in order to secure a very great profit on the investment. 
 
 President Roosevelt, in submitting tlie second Hay-Pauncefote 
 
 tro:ily, ;;iud : 
 
 It sp( -cificully provides that the United States alonr* sliall do 1J;n 
 
 work of luiildinff and assume the iVijuartiinj,' the 
 
 i and :;)i;il! regulate its neutral UKO i>y all nations on tr-rms of 
 
 >:t tlie guaranty of interference of any outside nation 
 
 from any quarter. * * 
 
 Again, he says, on January 4, 1004, in a ppecinl mossnge: 
 
 * * * Under the Tiay-raiiivofote treaty it was explicitly pro- 
 vided that the I'niled Sl.iies should control, police, and protect the 
 canal which was to be built, Itccjtiuy it {.pen for i: <<f all na- 
 H'.v n8. The United States tlius a- e position 
 of guarantor of the M of its peaceful use by nil the world. 
 
 In a note by Secretary Hay on the following d.iy. lie - 
 
 * * * The Clayton-I'ulwcr treaty was conceived to form an ob- 
 sfa-'-le, and the British GioverjMaeflt therefore nsi'eod to abrogate ii. 
 Ui:i: only prorai^iu.e in return lo protd't the canal and keep 
 it ci .al temiB to all nations, in accordance icltJi our :, 
 tional pvli 
 
 Aside from corresiioiideiice and declarations rclr.tins to the 
 proposed Isilnniaii Canal, two negotiations remain very no.-irly 
 COBtenjporameoT3 with the date of the Hay-Panneefote treaty, 
 both of \vliich are in entire : > with our sell let! national 
 
 policy, but which in their bearing upon the interpretation of th<> 
 Hay-Panncefote ti-caty far outweigh :<il liii 1 pnveding. not (>nly 
 because of the similarity in tlie quesiions involvod bill Jje-'-iuso 
 of the furl her f.-ict that they are so nearly conteiujwran-" 
 wilh tlie negotiation of the i ining to them 
 
 must have been clearly in mind when tlie treaty w*B framed. 
 They are : 
 
 First, (hn tioofl in relation to the so-cnllod <M)e;: 
 
 in (.'hina in "JS!5i> ;n;il si'.fveeiling years. (",r 
 many. Fraiu-o. ftOBKln, and .7;i|:aii were tlie couni; -..led 
 
 as ])ossossing, thougli in unequal degri'es. an advani.igiMiis ;>;>M- 
 tion in China. (Jreat r.ritaSn 1 :. ;!>.<> 
 
 island of n.mgkong in th" y-ar 1SJ1 and had aripiired a ]>enin- 
 BtilM, known as Kowloun, opposite the island ol -ug; also 
 
 4582813421 2 
 
18 
 
 a 99-year lease of a tract of territory on ilie mainland in the 
 Province of Kwaiigtiing, in the extreme trntheni part of China. 
 This was acquired in 1898. The total area of this last conces- 
 sion was 400 square miles, with a population in 1911 of 306,145. 
 Also in 1898 the port of Weihaiwei was leased for so long a 
 period as Port Arthur should remain in the hands of Russia, 
 the object of which was to provide Great Britain with a suitable 
 naval harbor in northern China and for the better protection of 
 British coimumerce in the neighboring sea^. The area of the 
 territory under this lease was 285 square miles, with a popula- 
 tion of 150,000. The lease was extended under an agreement 
 in which provision is made that it (Weihaiwei) shall remain 
 in the occupation of the British " so long as Port Arthur re- 
 mained in the hands of any foreign power " that is, any power 
 other than China. Port Arthur now belongs to Japan. 
 
 Germany had a 99-year lease, granted in 1898, of KiaorChau, 
 including the bay of the same name, its islands, and the north 
 and south tongues of land at the mouth of the harbor. The 
 extent of this is 193 square miles. In view of the possessions 
 held, Great Britain has a sphere of influence in the Yangtze 
 Valley and Germany a similar area of about 2,750 miles, but 
 now extended to the whole of th- Province of Shantung. 
 
 France at that time had, under a lease for 99 years, given in 
 1898, the port of Kuang-chou-wan to establish a naval station 
 with coaling depot, together with adjoining islands and terri- 
 tory in the Province of Kwangtuug in the extreme southern 
 part of China, some 300 miles west of the British island of 
 Hongkong. The area included in this is 325 square miles, with 
 a population of 190,000. The sphere of influence has extended 
 over the Yunnan Province. 
 
 Russia had a 25-year lease, granted in 1898, of Liao-Tung 
 Peninsula, including Port Arthur, Ta-lien-wan, and the adjacent 
 waters. The area of the laud included in this lease was about 
 2,000 square miles, in which Port Arthur and Ta-lien-wan were 
 the principal ports. This sphere of influence extended into 
 South Manchuria ; Russia also had a lease of land necessary for 
 the construction 0f a railway 508 miles long, leading from Port 
 Arthur to Kwanchengtsee, and another road 150 miles long, lead- 
 ing from Antung on the Yalu River, which is the boundary be- 
 tween Korea and Sheugking Province, to the city of Mukden. 
 
 Each of these countries had also garrisons and a naval force 
 in their respective spheres of influence. It was apparent that 
 these possessions gave- them a very substantial advantage in the 
 trade of China, and it was the aim of President McKiuley and 
 Secretary Hay to obtain for our own citizens equal rights in all 
 the Chinese Empire. With that purpose in view assurances had 
 been given to our ambassador by the Russian minister of foreign 
 affairs that American interests should in no way be prejudiced 
 by Russian occupation and influence, and it was not the desire 
 of Russia to interfere with the trade of other nations. There 
 was an imperial decree of July 30, 1899, creating the free port 
 of Dalny, near Ta-lien-wan Bay, and establishing free trade for 
 the adjacent territory. In a letter to our ambassador at St. 
 Petersburg, Mr. Hay said : 
 
 However gratifying and reassuring such assurances may be in regard 
 to the territory actually occupied and administered it can not hut be 
 admitted that a further, clearer, and more formal definition of the con- 
 ditions which are henceforth to hold within the so-called Russian 
 4582813421 
 
19 
 
 "sphere of -interest" In China as regards the commercial rights therein 
 of our citizens is much dcsirod by tho busineM world of Die United 
 States, inasmuch as such a declaration would relieve it from the appre- 
 hensions which have exercised a disturbing influence during the last four 
 years on its operations in China. 
 
 Mi\ Hay accordingly laid down certain principles which he de- 
 sired should be formally declared by the Russian Umpire and 
 by all the great powers interested in China. Of these principles 
 he said they "will be eminently beneficial to the commercial 
 interests of the whole world " : 
 
 First. The recognition that no power will in any way interfere with 
 any treaty port or any vested interest within any leased territory or 
 within any so-called " sphere of interest " it may have in China. 
 
 Second. That the Chinese treaty tariff of the time being shall apply 
 to all merchandise landed or shipped to all such ports as are within 
 said "sphere of interest" (unless they be " free ports "), no matter to 
 what nationality it may belong, and that duties so leviable shall be 
 collected by the Chinese Government. 
 
 Third. That it will levy no higher harbor dues on vessels of another 
 nationality frequenting any port in such " sphere " than ?hall !> levied 
 on vessels of its own nationality, and no higher railroad chargf-.s over 
 ];n>:-; built, controlled, or operated within its " sphere " on merchandise 
 belonging to citizens cr subjects of other nationalities transported 
 through such " sphere " than shall be levied on similar merchandise 
 belonging to its own nationals transported over equal distances. 
 
 Special attention is called to the third of the principles, tiie 
 recognition of which \vns requested. It included a demand 
 that no higher railroad charges over lines built, controlled, or 
 operated within its sphere on merchandise belonging to the citi- 
 or subjects of other nationalities should be levied than on 
 similar merchandise belonging to its own nationals. 
 
 An identical note containing the request for recognition of 
 the three principles was sent to France, Germany, and Russia, 
 on the same date, September G, 1899. This same note wj;3 trans- 
 mitted to Great Britain on September 22, 1899, from the London 
 embassy; to Japan, November 13, 1899; and to Italy, November 
 17, 1899. The reply of Russia, dated December 30, 1899, stated 
 that Russia had already declared Ta-lien-wan a free port, thus 
 demonstrating its friendly intention to follow the " open-door " 
 policy as to territory lying in tl:3 so-called " sphere of influence,'' 
 and that Russia intended to claim no privileges to the exclusion 
 of foreigners, though this assurance was given on condition that 
 a similar declaration should be made by the other powers. 
 Before the close of the year the other powers made a similar 
 declaration, and under date of March 20, 1900, Secretary Hay 
 sent instructions to all the Governments concerned, stating that 
 all the powers had given their acceptance and that the Govern- 
 ment of the United States would consider such acceptance final 
 and binding. 
 
 We thus demanded equal use of the ports controlled by these 
 various nations, equal privileges in trade, and, what is most 
 significant of all, equal railroad rates upon railways constructed 
 by Russia at great expense and extending into the interior 
 through Chinese territory to a connection with railways within 
 her own domains. 
 
 The insistence upon equal opportunity for American enterprise 
 in China was carried so far that in 190U Secretary Hay stato-l 
 that, an agreement by \vhi.-h China "coiled to any corporation 
 or company" the exclusive right to open mines, establish rail- 
 roads, or in any o!her way industrially develop Manchuria, can 
 but be viewed with the gravest concern by the Government of 
 4582813421 
 
20 
 
 1he United States. Tie alleged this was so, because such a 
 monopoly was a distinct breach of the stipulations of the 
 treaties concluded between China and foreign powers, and 
 thereby seriously affected the rights of American citizens. He 
 concluded by saying: 
 
 The inevitable result must be the complete wreck of the policy of 
 absolute equality of treatment of all nations in regard to trade, 
 navigation, and 'commerce within the confines of the Empire. 
 
 The following year. 1903, Mr. Hay entered a protest against 
 the demand of the Russian Government that no foreigners, 
 except Russians, should be employed in the public service. 
 
 It is often said that we made a bad bargain when the Hay- 
 Pauncefote treaty was framed. This statement has been 
 repeatedly made. The conclusive answer to that is contained 
 in a very few words in a note by Secretary Hay of January 5, 
 1904, to which reference has already been made: 
 
 The Clay ton-Bui wer treaty was conceived to form an obstacle that 
 is, to the construction of an Isthmian Canal by us and the British 
 Government therefore agreed to abrogate it. The United States only 
 promised in ret lira to protect the canal and keep it open on equal terms 
 to all nations, in accordance u'Uh our traditional policy. 
 
 Not only was the treaty in accordance with our traditional 
 policy, but negotiations had been initiated contemporaneously 
 with the negotiations with the various nations in China for an 
 " open door," and it would have been the height of inconsistency 
 to have made the demand for equality of treatment in China 
 and to have denied it in a treaty relating to an Isthmian canal. 
 
 Our record was so uniform and unbroken that we could have 
 taken no other ground. The attempt by John Adams and Frank- 
 lin and Jay in the years 'J782 and 1783 pointed a new way as 
 emphatically and as decisively as any of the great principles 
 which lie at the foundation of our Government, and were just 
 as strenuously maintained. 
 
 Mr. GALLINGER. Mr. President, I know the Senator pre- 
 fers not to be interrupted, but I should like to ask him how 
 that traditional policy is to be squared with our coastwise laws. 
 
 Mr. BURTON. Navigation is one thing, commerce is another. 
 There are two reasons for giving a monopoly to domestic or 
 coastwise traffic which are commonly observed the world over. 
 One is the avoidance of smuggling; the other is the building 
 up of a merchant marine. Navigation and commerce are very 
 widely apart. You might as well say, "Why does a nation re- 
 strict ownership on the ground but place no restrictions on the 
 air?" 
 
 Mr. GALLINGER. If I understood the Senator correctly 
 and I shall not interrupt him further in the early part of his 
 most interesting address he cited over and over again the fact 
 that all of our waterways were to be open on terms of equality 
 to all the nations of the world. 
 
 Mr. BURTON. Yes. 
 
 Mr. GALLINGER. Under that system I am sure England 
 could have engaged in our coastwise trade. Later on we legis- 
 lated to prohibit it. 
 
 Mr. BURTON. There, again, is the difference between com- 
 merce and navigation. I shall treat of that later on. 
 
 Mr. GALLINGER. I can not see the difference; but still 
 
 Mr. r&URTON. The Senator from North Dakota [Mr. Mo 
 CUMBEK] informs mo that Senator Morgan even more strongly 
 expressed himself on this subject. 
 
 4582813421 
 
21 
 
 Mr. GALLINGER. Wliile the Suitor is reading what has 
 anded (o him, I will say to (lie Senator that L shall bo 
 delighted to listen to the discussion wheu-ly he is going to 
 differentiate between commerce and navigation. If navi 
 does not control commerce in a very important particular, I 
 have not correctly interpreted the term. 
 
 Mr. BURTON. There is a very great difference between the 
 use of channels and the privilege of trading in them or in 
 towns upon them. There must be, just so long as nations have 
 their policy of protective duties or fiscal regulations. 
 
 Senator Morgan said : 
 
 All that is left of this general treaty Is the general principle pro- 
 vided in article 8 of the Clayton-Bulwer treaty. That is, that the ves- 
 sels of all nations using the canal should be treated with exact equality, 
 without discrimination iu favor of the vessels of any nation. 
 
 Again he says : 
 
 Then this convention, in article 2, proceeds to define and formulate 
 into an agreement, intended to be world-wide in its operation, " the 
 general principle of neutralization,"" established in article 8 of the 
 Clayton-BulWer treaty on the basis of the treaty of Constantinople of 
 October, 1888, relating to the Suez Canal. 
 
 Nothing is given to the United States in article 2 of the convention 
 now under consideration, nor is anything denied to us that is not given 
 or denied to all other nations. 
 
 Putting us on an exact footing of equality with them. I am 
 much obliged to the Senator from North Dakota for presenting 
 this to me. 
 
 Second. Our demands in relation to Canadian waterways in 
 1888 to 1802. 
 
 On the 15th of July, 1912, in some remarks in the Senate I 
 set forth at length the transactions with Canada at the time 
 mentioned. The Canadian Government in council had in sub- 
 stance decreed that while the tolls on cargoes carried through 
 the Wei land Canal should be 20 cents per ton on eastbound 
 freight, yet if the boat went as far as Montreal there should be 
 a rebate of 18 cents a ton, leaving the net toll only 2 cent^. 
 This gave a preference to the port of Montreal as compared with 
 the ports of the United States on Lake Ontario, the St. Lawrence 
 River, and, in fact, upon the north Atlantic seaboard. Its 
 manifest object was to increase the importance of Montreal as 
 a port for the export of grain and other commodities. I do not 
 wish to repeat the remarks made at that time. They appear 
 on pages 9065 and IHKJO of the CONGRESSIONAL RECORD for the 
 Sixty-second Congress, second session. 
 
 The Senator from Georgia [Mr. SMITH] on last Tuesday 
 set forth at length the messages of Presidents Cleveland and 
 Harrison and the memoranda on this subject in the State De- 
 partment, the discussion of a resolution in the House and 
 Senate, which resolution by unanimous vote authorized the 
 President, to issue a proclamation in retaliation; also the proc- 
 lamation in retaliation of August 18, 1892. This action led to 
 a revocation of the regulation of the Canadian Government by 
 order of the council, so that equal privileges were afforded to 
 the ships and commerce of both nations. 
 
 The distinct assertion by all of our statesmen who took part 
 in this controversy or declared themselves upon the subject was 
 that by the treaty of 1871 equality of treatment was secured 
 not only for our shipping but for our citizens, that regard must 
 be had for the routes of transportation to prevent discriniiua- 
 
 4582& 13421 
 
22 
 
 tion against the United States in trade. But it should be very 
 carefully noted that the treaty of 1871 did not contain so 
 strong language as the Hay-Pauncefote of 1901. Indeed, it is 
 not only plausible but extremely probable that the language 
 of the treaty of 1871 was in mind when that of 1901 was drawn, 
 and that the object was to secure equality beyond the possibility 
 of any ambiguity. The language of the treaty of 1871 is: 
 
 The Government of Her Britannic Majesty engage to urfjc upon the 
 Government of the Dominion of Canada to secure to the citizens of the 
 United States the use of the Welland. St. Lawrence, and other canals 
 in the Dominion on terms of equality with the inhabitants of the 
 Dominion. 
 
 The language of the Hay-Pauncefote treaty is: 
 The canal sJiall lie 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 
 citi--ens or subjects, in respect of the conditions or cJiaryes of truffle, or 
 othenoise. 
 
 There is no question of territory involved in Canadian canals, 
 either the Welland or those below Lake Ontario beside the rapids 
 along the St. Lawrence River. They are all within the Do- 
 minion of Canada. It was not necessary to acquire the land 
 through which they pass to build a canal as " a trust for the 
 world." The argument in favor of the right of exclusion is, we 
 must admit, much stronger than it is in the case of the Panama 
 Canal ; yet when a discrimination in tolls, which it >was alleged 
 was not altogether against our ships, was attempted we de- 
 manded that it should be done away with, because it discrimi- 
 nated against our citizens and diverted trade and transporta- 
 tion which naturally belonged to our own country in another 
 direction. Can we afford to assert the principle of equality in 
 the use of channels when it benefits us and our trade, and at 
 the same time establish another and entirely opposite rule when 
 the canal or route belongs to us? 
 
 In this connection it might be well for us to consider our de- 
 pendence upon Canada for our traffic through artificial water- 
 ways, especially as regards the Soo Canal, the Welland, and 
 other canals parallel to the rapids in the St. Lawrence. It will 
 be well to compare the American traffic through them with the 
 probable coastwise traffic through the Panama Canal. In case 
 both countries shall adopt the same policy, which will have the 
 advantage? Through the connecting * waters between Lakes 
 Superior and Huron in the St. Marys River there is a traffic 
 which is the largest through any waterway in the world, 
 except that through the Detroit and St. Clair Rivers. The 
 total freight passing through the river in the year 1913 
 was 79,718,344 tons, the principal articles being, respec- 
 tively, iron ore, coal, grain, and general merchandise. The 
 iron and steel business in the United States has gained its 
 supremacy by reason of the abundant supply of iron ore in the 
 State of Minnesota, with very large supplies also in Wisconsin 
 and Michigan, nearly all of which pass through this canal. 
 By reason of the abundance and cheap transportation of these 
 ores the United States has taken the lead among the nations 
 in the production of iron and steel. Of course, our supply of 
 coal must also be taken into account, but the iron ore supply 
 and its ready transportation from Lake Superior to Lake 
 Michigan aud Lake Erie constitute the real basis of our su- 
 premacy. 
 
 4582S 13421 
 
23 
 
 In tliis rivor there are rapids, to overcome which two lateral 
 canals have been constructed, one by us on the American side, 
 the other on the Canadian side at the expense of the Canadian 
 Government and under its control. In the canal on the Anu-ri- 
 can side there are two parallel locks, known as the Poe and the 
 Woitzel Locks; the former has a depth of water 1<x.~ feet 
 and the latter 12.9. In the canal on the Canadian side there is 
 one lock, having a depth of 19 feet. A new lock is under con- 
 struction on the American side, more ample than any of thos.; 
 now existing, but which will probably not be finished until 
 October of this year. The locks on the American side are 
 absolutely incapable of carrying the total amount of this enor- 
 mous traffic. In the year 1,913 the total freight passing through 
 the Canadian canal was more than that through the American, 
 in round numbers 42,000,000, or, more exactly, 37,022,201 tons 
 passed through the American canal and 42,690,143 tons through 
 the Canadian canal. Expressed in percentages, 54 per cent of 
 the freight passed through the Canadian and 48 per cent 
 through the American. 
 
 Suppose a policy of retaliation, or one based upon the 
 Panama Canal act of 1!)12, should be adopted by Canada? 
 American freight would be shut out from the Canadian canal, 
 except on the payment of tolls, and the enormous traffic move- 
 ment in this waterway, having a valuation of eight hundred 
 and sixty-five millions, would ba so impaired as to cause an 
 injury to our industrial and commercial interests almost beyond 
 computation. To make this more impressive, it may be stated 
 that of the total traffic through this Canadian canal, in which 
 free passage is given to American freight, less than 5.000,000 
 tons was Canadian, as against 37,000,000 tons of the United 
 States, all of which was part of the coastwise commerce of 
 this country. In comparison with this how small is the quan- 
 tity which is likely to pass through the Panama Canal. Prof. 
 Johnson, in his testimony before the Committee on Interoceanic 
 Canals, April 14 last, page 149, estimates that during the initial 
 years in which the Panama Canal is to be utilized the net ton- 
 nage of vessels passing through will be some 10,500,000 a year. 
 Of that 1,000,000 tons net tonnage will be contributed by the 
 coastwise shipments, which existing legislation seeks to free 
 from tolls. How the actual carriage will compare with the 
 estimated tonnage, no one can tell. If I were to give my own 
 estimate of coastwise traffic, which I should put beside that of 
 Prof. Johnson with a great deal of deference, as he has given 
 much study to the subject, it would be larger. But, in any event, 
 the comparative amount is trivial, not one-twentieth of the quan- 
 tity of coastwise freight which now passes in our ships through 
 the Canadian canal in the waters connecting Lake Superior and 
 Lnke Huron. 
 
 It is for us to pause and consider this situation and to ask 
 whether we can aiTonl to make such a discrimination. Should 
 the regulations continue as at present in the Canadian canal at 
 the Soo there will be no burden upon us; should they impose tolls 
 or otherwise exorcise discrimination we should be subjected to 
 almost incalculable damage. 
 
 The situation nt the s<>.> does not describe the whole of 
 conditions on our northern border. The Canadian (Jovernment 
 is about to complete another canal at the Soo, 30 feet in 
 4582813421 
 
24: 
 
 depth, and a waterway from Lake Erie to Lake Ontario to 
 replace the present Welland Canal, and in connection there- 
 with is preparing to construct canals and improvements in 
 the St. Lawrence, so as to give an .outlet 30 feet in depth 
 from Lake Erie and the Great Lake system of navigation to 
 the ocean. The benefits of such a route to transportation 
 can not be overestimated. It would make more readily avail- 
 able to the markets of Europe and the w r orld all the mani- 
 fold products of agriculture and industry which belong to the 
 region tributary to the Great Lakes. At present the draft 
 of boats from Lake Erie to the ocean is limited to 14 feet and 
 the length to approximately 250 feet, notwithstanding there 
 are already many ships on the lakes 550 to 600 feet in length 
 and having a draft of more than 20 feet. Even with the limita- 
 tion of the present channels, from Lake Erie through the Wel- 
 land Canal to Lake Ontario and the St. Lawrence, there is a 
 very considerable traffic. The number of tons of freight passing 
 through the Welland Canal in 1913 was 3,570,714, of which 
 2,093,408 belonged to Canada and 1,477,308 belonged to the 
 United States. In the canals around the rapids in the St. 
 Lawrence there was a somewhat larger amount of Canadian 
 freight amounting to 2,837,019 tons, while in vessels of the 
 United States there were 1,465,408. In these canals tolls are 
 charged, but there is entire equality between Canadian vessels 
 and vessels of our own country. But should a discrimination 
 be made, as this is a coastwise route, it would appear that in 
 both the Welland Canal and those of the St. Lawrence a larger 
 quantity of freight would be discriminated against in these 
 channels than the total of the coastwise traffic which will pass 
 through the Panama Canal. 
 
 The slight attention given in these debates to our demand from 
 3888 to 1892 for equal privileges in the Welland Canal and other 
 Canadian channels is hardly fair to those who advocate the 
 repeal of this exemption. During the debates in July and 
 August of 1912 the demand was made that the supporters of 
 the House bill should reconcile their position with the attitude 
 of the United States on this question during the administrations 
 of President Cleveland and President Harrison. I do not recall 
 that any reply was made to that challenge of 1912 for a con- 
 sistent explanation of our course in 1888 to 1892. But now, 
 after the lapse of two years, the explanation is offered that 
 neither Canada, nor Great Britain acting for her, ever conceded 
 that they were wrong; but that to the last they maintained the 
 correctness of their position and yielded merely as a matter of 
 expediency. But does even that afford one particle of justifica- 
 tion for us to insist upon this preference? 
 
 We made an insistent demand, not merely by diplomatic 
 notes, but by action of Congress and by a retaliatory proclama- 
 tion expressing our interpretation of the principles 'involved in 
 the treaty relating to the Welland Canal and asserting the ob- 
 servance of our traditional policy. The action taken then w r as 
 in entire harmony with declarations theretofore made in regard 
 to the proposed Isthmian Canal and our demands in regard to 
 other waterways in foreign countries extending over 100 years. 
 It must be conceded that the position taken by the act of 1912 
 was squarely in contradiction to that of 1892. 
 4582813421 
 
25 
 
 C;;n we now, under changed conditions, and \vlion wo will be 
 benefited by obsvrvini; a different rule, afford to deHare that 
 our deliberate action then taken was wrong? Was ; 
 law of honor and patriotism "i 1W2 and another in 1012? 
 Does it require only 20 years to change the law of fairness be- 
 tween nations? 
 
 Fortunate, thrice fortunate, is that country, as weil as that 
 individual, which can sustain a contention in its own interest 
 and obtain benefit by maintaining opposite sides in successive 
 controversies according to its own sweet will; too fortunate, 
 indeed, to be consistent or to be honest with ourselves or with 
 the world. 
 
 It is maintained that to favor equal treatment in tolls at 
 Panama is unpatriotic. If those who maintain this position 
 are unpatriotic, were all the Senators and the Representatives 
 and the two Presidents who maintained the opposite view in 
 the four years mentioned lacking in patriotism? 
 
 The argument will no doubt be made that there are two 
 distinctions which should be observed in determining the 
 status of the Panama Canal as a v*aterway. The first is the 
 difference between waters entirely within the limits of a coun- 
 try, which may be called national waterways, and those which 
 flow through two or more countries, called international water- 
 ways. In the latter list are included those which serve as 
 boundaries between two countries. It has been maintained in 
 this discussion that the Panama route is a national waterway, 
 as it is located upon territory owned by the United States, and 
 thus within its sole jurisdiction. Indeed, the very extreme 
 statement has been made that we could not respect the sugges- 
 tion of another Government to make all tolls equal, because it 
 would involve an abandonment of sovereignty. Very consid- 
 erable stress has been laid upon the distinction between na- 
 tional and international waterways in past years, but with the 
 increase of commercial relations and the general decrease in 
 military operations this distinction has lost much of its impor- 
 tance. At present the practical reason for the regulation or 
 prohibition of foreign ships in national waters is the prevention 
 of frauds upon the customs revenue. 
 
 It was formerly said by many publicists that the right to use 
 a river flowing through two countries was a natural right, 
 while the right of a foreign vessel to navigate a river located 
 exclusively in one country was a conventional right or depend- 
 ent upon treaty. The memorandum of Secretary Foster with 
 reference to the right of Canadian vessels to navigate the Hud- 
 son, to which reference has been made, pointed out this distinc- 
 tion. It is, nevertheless, the present rule to allow foreign ves- 
 sels to enter and sail upon rivers entirely within the United 
 States, at least, if they connect with other waters, natural or 
 artificial, extending into other countries or to the sea, such 
 at the Mississippi, the Hudson, the Columbia, and the bays 
 along our coasts. While this privilege is secured in many cases 
 by treaty, it is not believed, however, that the exercise of the 
 right depends upon any conventional arrangement. It is rather 
 granted as a matter of comity with foreign nations. 
 
 The value of this privilege is enlarged by the customs reor- 
 ganization measure adopted last year and the regu' at ions framed 
 under it. Dating back almost to the beginning of the Govern- 
 45S28 13421 
 
26 
 
 ment there was a distinction between ports of entry and ports 
 of delivery. Foreign boats were allowed to touch at ports of 
 entry, but not at ports of delivery- The reason was based upon 
 the danger of smuggling. By the customs reorganization act 
 this distinction between ports of entry and ports of delivery has 
 been abolished and an additional number of ports of entry have 
 been created at all of which foreign boats may stop. At an 
 early date the right was asserted to exclude foreign ships from 
 purely national waters or interior bays, like the Chesapeake 
 and the Delaware, but this right has not been asserted in recent 
 years. The vital question, however, is whether the Panama 
 Canal is on the same footing with a national stream. Clearly 
 it is not. A strip 10 miles in width was granted for its construc- 
 tion, but this was not a territorial acquisition. If so, it would 
 have been absolutely contrary to our settled policy with refer- 
 ence to the Republics to the south of us. For this strip we pay 
 an annual rental of $250,000, which is quite inconsistent with a 
 fee-simple title. A width of 10 miles was regarded as necessary 
 for the convenient construction and operation of the canal. 
 Material was obtained from this area or zone in the work that 
 was done. Also material was deposited upon it. Provision was 
 made in the treaty for going outside the zone on payment of 
 proper compensation, if necessary for the construction of the 
 canal. It was deemed desirable that the land obtained be 
 permanently held for the habitation of those engaged in the 
 operation of the canal and for sanitary and police control in 
 its immediate locality. Had the mere ground through which 
 the canal is excavated been obtained, it would have been easy 
 for marauders to approach it, and the safeguarding of the 
 health of the employees would have been difficult. The lan- 
 guage of the treaty itself expresses in the clearest terms that 
 the grant of the land in Panama is in trust for a certain pur- 
 pose and not for territory to be incorporated in the United 
 States as a part of its general domain. 
 
 As compared with other portions of the United States the dis- 
 tinctions in the control exercised over this strip are very 
 marked. There is no legislative body. There is no provision for 
 elections. A governor is appointed by the President. In the 
 express language of the statute, the Canal Zone " is to be held, 
 treated, and governed as an adjunct of such Panama Canal." 
 The customs laws of the United States are not applicable there, 
 nor have the inhabitants of this strip the right to send their 
 merchandise into the United States in the manner granted to 
 the people of our country. Imports from the Canal Zone pay 
 duties at our customhouses in the same manner as imports 
 from a foreign country. Imports into the Canal Zone are not 
 subject to the duties imposed by our laws. The War Depart- 
 ment has assumed the authority of fixing customs regulations 
 without any reference to Congress whatever. The canal, in- 
 stead of being an artery of commerce, supplying a large adjacent 
 territory, such as is the case with the great rivers or waterways 
 of the United States, is limited to furnishing what is needed for 
 those who operate the canal and to the promotion of its" traffic. 
 Whatever transshipment there may be, whatever coaling or sup- 
 ply stations may be established, are but incident to the water- 
 way between the oceans and are provided to facilitate traffic 
 through the canal. The most important of all, however, is the 
 
 4582813421 
 
27 
 
 fact ihat this waterway is a mere connecting link between the two 
 oceans, less than f>() miles in length, and is constructed as a part 
 of maritime routes of great length providing a waterway to aid 
 the means of communication between nations, many of which 
 are remote from the canal and are located upon seas or oceans. 
 
 Second. It has been been maintained that there is a marked 
 distinction between natural and artificial waterways in the 
 degree of control which may be exorcised over them by the 
 countries through which they pass. 
 
 The more recent declarations of publicists and international 
 lawyers, however, all favor the idea that artificial canals con- 
 necting great bodies of waters are international waterways. 
 This principle was asserted in the most unequivocal language in 
 the convention relating to the Suez Canal of 3 888. The duty of 
 a country owning the territory through which a canal may be 
 constructed to afford opportunity for its construction was main- 
 tained in the most strenuous manner by President lloosevelt in 
 his action with reference to Colombia. 
 
 There is no clearer statement of the American view on the 
 subject than that contained in a letter from the Hon. Lewis 
 Cass, our Secretary of State under President Buchanan, to Mr. 
 Lamar. our minister to the Central American States, on July 25, 
 ISDS. He wrote, in referring to the country or countries through 
 which a canal might be constructed, the following: 
 
 Sovereignty Jias its duties as well as its rights, and none of those 
 local governments * * * would be permitted, in a spirit of east- 
 ern isolation, to close these gates of intercourse on the great highways 
 of the world and justify the act by the pretension that these avenues 
 of trade and travel tclonf/ to tJicm", and that they choose to shut them 
 or, what is almost equivalent, to encumber them with such unjust regu- 
 lations as would prevent their general use. 
 
 We can reach no conclusion except that a canal constructed 
 like the Panama, under a concession, the aim and object of 
 which is merely to provide a connecting waterway, especially 
 in view of the language of the Hay-Pauncefote treaty, is to be 
 considered as an international watercourse and subject to the 
 rules pertaining to natural straits. There is, of course, an ex- 
 ception to this, so far as regards the necessity of adopting 
 necessary regulations to protect against hostile attack, the 
 necessity of adopting proper regulations to insure the safety of 
 boats in passing, to provide against injury to locks and other 
 constructions, to police the canal and enforce sanitary regu- 
 lations. Again, the position of an artificial waterway is excep- 
 tional in that the cost of construction allows the imposition of 
 tolls as a compensation for the expense of the improvement, 
 though in many instances the improvement of natural channels 
 so as to make them readily available for navigation is very 
 large and, in kind, the same as the building of artificial water- 
 ways. Indeed, it is often a question over a given stretch of a 
 river whether the most feasible method to secure navigation is 
 by improving the main stream or by a lateral canal. In modern 
 times the demand is that navigation have free scope, without 
 interruption from pirates, from payment of tribute, or from 
 discrimination. As has been pointed out, there is no nation 
 which has been quite so insistent in this principle as our own. 
 The tendency of recent years in the making of treaties and 
 agreements is altogether against discrimination in the use of 
 artificial waterways. It should again be said that our own 
 4582813421 
 
28 
 
 policy, as exemplified in negotiations with Canada, shows that 
 we have maintained the principle that when a canal is a con- 
 necting link in a longer route afforded by rivers or by sea it 
 must be open on equal terms to all. Every declaration made 
 upon this subject in the earlier years when negotiations were 
 under way for an Isthmian canal would condemn in the most 
 decisive language any attempt on our part to discriminate in 
 our favor in any canal connecting the two oceans. 
 
 It has been frequently alleged in argument here that as we 
 have constructed canals and improved rivers and inland water- 
 ways within our borders at great expense, and those canals 
 and rivers are open to navigation for all citizens without charge 
 in the way of tolls for a statute passed in 1884 abolished all 
 charges our coastwise shipping is entitled to pass through 
 the Panama Canal on similar terms of exemption. In meeting 
 this contention we may pass by several arguments of very 
 great importance, namely, that the Panama Canal is an extra 
 territorial enterprise, and in this respect is sharply distin- 
 guished from the improvement of our inland waterways; also 
 the enormous expense, reaching nearly half the amount ex- 
 pended on all our rivers and harbors since the foundation of 
 the Government; also that from the very outset the universal 
 understanding has been that tolls should be charged on ships 
 rivalling themselves of this expensive waterway in order to 
 meet a portion of the expense. The conclusive answer to this 
 argument is that our inland waterways, free though they may 
 be to our citizens, are also free to the boats of foreign nations, 
 so that if this argument has any force it means not merely 
 that our coastwise shipping should be exempt from charges, 
 but that no tolls should be charged on any ships, foreign or 
 domestic, going through the Panama Canal. 
 
 In stating these facts, of course a distinction should be made 
 between navigation and commerce. No foreign boat is allowed 
 to take on cargo at one domestic port and unload it at another. 
 This fact renders the privilege of navigation in minor streams 
 of slight importance and shuts out traffic between ports of our 
 country. The privilege of navigation nevertheless exists. 
 
 The case of Olsen against Smith has been quoted as an argu- 
 ment to the effect that we can allow our own ships in the coast- 
 wise trade to pass through without the payment of tolls. In- 
 deed, a considerable number of Senators seem to have relied 
 upon this decision as a reason for their vote in 1912. Without 
 reverting to the fact that a decision of our own Supreme Court, 
 though worthy the very highest respect the world over, is not 
 binding in a controversy between ourselves and other nations, 
 the conclusive reason why this case does not settle this present 
 controversy is the fact that the Hay-Pauncefote treaty grants 
 entire equality to nations, their citizens or subjects, in respect 
 to the conditions or charges of traffic or otherwise ; also so 
 that there shall be no discrimination. Thus while we might 
 exempt our coastwise shipping from payment of tolls, we 
 should also be required to exempt the coastwise shipping of 
 other countries. If our coastwise shipping is exempt so that 
 boats from New York to San Francisco do not pay tolls, there 
 is equal reason why the coastwise ships of other countries 
 should be exempt. 
 4582813421 
 
29 
 
 Tn addition to the United SI, -i IPS. there nro other countries 
 fronting on tlio Atlnntic or Pacific, or. more correctly, on the 
 y and w- s. which would us; Hioso canals. They 
 
 iada. Mcxi'-D, Guatemala, Honduras, Nicaragua, and Costa 
 Jiica in Xorth America, and f'nlonmia in South America. The 
 countries to the south "f us front on the Gulf of Mexico or the 
 Carihhean Sea as well as upon the Pacific, and in order to accom- 
 modate their traffic between different coasts of their respective 
 countries it is necessary to use this canal. It is hardly fair to 
 the countries to the south of us, toward which we have made 
 such protestations of friendship and good will, to allow our 
 coastwise shipping to he exempt while theirs must pay charges. 
 The language of our treaties with them, to which I will make 
 reference, when read in connection with the llay-Pauucefote 
 treaty, precludes the idea that we intended to discriminate 
 against them. . 
 
 One argument which has not been fully presented in this dis- 
 cussion deserves great weight, and that is the phraseology of our 
 treaties negotiated prior to the treaty of 1901 in reference to 
 coastwise shipping. If it was intended to exempt coastwise ship- 
 ping, why was not reference made to that fact? Practically every 
 treaty in which there is any reference to commerce negotiated 
 prior to that time either contains specific language, or else the 
 exemption is necessarily implied. There is a great variety of 
 language in these treaties, but I am unable to find one in 
 which there is any reference to commerce which omits reference 
 to the subject specifically or does not secure exemption by neces- 
 saiv implication. These provisions are for the most part of 
 four classes: The first, in which the following language is used, 
 or language of 'similar import: 
 
 But * * * this article does not include the coasting trade of 
 either country, the regulation of which is reserved by the parties, respec- 
 tively, according to their own separate laws. 
 
 Second : 
 
 The reciprocal liberties of commerce [granted in the treaty] shall be 
 subject always to the laws aud statutes of the two countries, respec- 
 tively. 
 
 Third : 
 
 Contracting parties shall enjoy all the privileges and advantages, with 
 respect to commerce or otherwise, which are now or which may here- 
 after be granted to the citizens or subjects of the most favored nation. 
 
 Fourth : 
 
 The inhabitants of the two countries, respectively, shall have liberty 
 freely and securely to come with their ships and cargoes to all such 
 place s aforesaid, to which other foreigners are permitted to come and to 
 enter the same. 
 
 These last two forms would not permit participation in coast- 
 ing trade, because neither the favored nation or other foreigners 
 are granted that right. The first two forms manifestly are not 
 subject to any doubt. 
 
 Those in which the coastwise exemption does not specifically 
 appear are for the most part treaties made many years ago, or, 
 if recently, with remote countries, such as the treaty with 
 Borneo in 1 *"><), that with the International Association of the 
 Kongo in 1801, with Korea in 1882, with Egypt in 1SS4, with 
 Servia in ISM. th:.t with Prussia in 17SH. with Tripoli in 170G, 
 and that with Great Britain in 1815, which last, however, con- 
 4582813421 
 
30 
 
 tains an express provision that the reciprocal liberty of com- 
 merce shall be subject always to the laws and statutes of the 
 two countries, respectively. 
 
 It is noteworthy that the specific exemption of the coastwise 
 trade is contained in the treaties with the following States to 
 the south of us: Mexico, Costa Rica, Nicaragua. Honduras, 
 Guatemala, Salvador, Venezuela, Ecuador, Chile, Peru, and Brazil. 
 
 The treaties pertaining to a proposed Isthmian canal are 
 especially significant. In that of 1S4G with New Granada there 
 arc two provisions. Article 3 contains the usual clause exempt- 
 ing -the coastwise trade of either country. Article 35, which 
 has to do with the ports of the Isthmus of Panama or any road 
 or canal across the Isthmus that may be made by the Govern- 
 ment of New Granada, or by the authority of the same, provides 
 that there shall be no other tolls or charges levied or collected 
 from the citizens of the JTnited States than are, under like cir- 
 cumstances, levied and collected from the Granadiau citizens. 
 
 The Cass treaty of November 26, 1857, with Nicaragua, known 
 as the Cass-Yrisarri treaty, in article 2 reserves the' coastwise 
 trade; article 14 grants transit on terms of equality to the 
 Atlantic and Pacific, and contains the provision that no higher 
 charges or tolls shall be imposed on the conveyance or transit 
 of persons or property of citizens or subjects of the United 
 States or any other country across said route of communica- 
 tion than are or may be imposed on the persons or property of 
 citizens of Nicaragua. This treaty was not ratified. Other 
 treaties with Nicaragua and other countries make unequivocal 
 reference to the coastwise trade. 
 
 in the treaty with Panama of 1903 there is in article 19 an 
 exemption of the vessels of the Republic of Panama and its 
 troops and munitions of war in such vessels from the payment 
 of charges of any kind. This shows that when an exemption 
 was intended it was regarded as necessary to state it. The 
 Frelirighuysen-Zavala treaty, made in 1884 and recommended 
 by President Arthur in his message of the same year, but with- 
 drawn by President Cleveland in his .first annual message of 
 1885, contained this provision in article 14 : 
 
 The tolls hereinbefore provided shall be equal as to vessels of tho 
 parties hereto and of all nations, except that vessels entirely owned 
 and commanded by citizens of either one of the parties to this conven- 
 tion and engaged in its coasting may be favored. 
 
 Thus all of these treaties that with New Granada, the pro- 
 posed agreements with Nicaragua, and the treaty with Panama 
 show that in all our negotiations pertaining to an isthmian 
 canal when it was intended to exempt coastwise shipping or to 
 grant any preferences it was specifically so stated. 
 
 Now, the Hay-Pa uncefote treaty of 1901 contained no exemp- 
 tion of coastwise shipping, but, on the contrary, the very 
 strongest language to express entire equality. 
 
 Is it to be believed that when, through a series of years in 
 practically all countries near to the proposed canal, coastwise 
 shipping was exempt from the provisions of the treaties in the 
 most definite language it could have been intended to claim 
 exemption or preference for our own coastwise shipping in this 
 canal, built on soil acquired from a foreign country and con- 
 necting the two great oceans of the world, without any language 
 whatever on the subject? If it was intended to exempt our 
 
 4582813421 
 
31 
 
 roast \viso shipping, why dirt we net s:iy so? This, too, in the 
 face of our o\vn " tradit ional policy" asserted against Canada 
 loss than 10 years before, and assort ort contemporaneously, at 
 ID principle, in negotiations with the nations having 
 spheres of iiiilnoneo in the Chinese Kmpire. 
 
 This contention is strengthened by the fact that almost all of 
 our shipping is that engaged in the coastwise trade. The Sta- 
 tistical Abstract for >\vs the registered tonnage, in our 
 foreign trade to he JJL'o.dOO tons; that in our domestic or coast- 
 ade is G,7.*I7.<>0!) tons, or more than seven times as much. 
 Is it credible that a treaty providing equality could be framed 
 merely to include the limited quantity of shipping which is en- 
 gaged' in our foreign trade? We all regret that it is so small, 
 bat such is the fact. If it was intended that our coastwise trade 
 should be exempt, the provision of equality becomes a practical 
 nullity. Special importance may be assigned to this fact, be- 
 cause so many countries to which reference ha-- already been 
 made, including the countries to the south of us. ;.lso have coast- 
 wise shipping which would utilize this canal. 
 
 In opposing this bill for repeal nothing has been more fre- 
 quent than an appeal to patriotism and to national pride. Any 
 such appeal must necessarily be received with a responsive 
 spirit, and if made with earnestness it stirs the heart. But 
 patriotism does not mean that we shall disregard treaty obliga- 
 tions or swerve from policies which have been maintained with 
 persistency and zeal through all our national life. It is our 
 duty to maintain a scrupulous regard for national faith and to 
 follow the rules which we have laid down for ourselves as well 
 as for all other nations. To be consistent and to be fair to all 
 the world, that is patriotism. If we retrace our steps from the 
 ennobling record which has characterized us for more than 100 
 years, let us beware lest the most inspiring notes of patriotism, 
 though uttered with the tongues of men and of angels, may be- 
 come as sounding brass aiid a tinkling cymbal. 
 
 45S2S 131-11 
 
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