CHOATE TO SECRETARY HAY

"Lord Lansdowne's object in insisting upon Article 3A is to be able to meet the objectors in Parliament by saying that although they have given up the ClaytonBulwer treaty, they have saved the 'general principle,' and have made it immediately effective and binding upon the United States as to all future routes and have dispensed with future 'treaty stipulations' by making it much stronger than it was before. I think his all-sufficient answer is that by giving up the Clayton-Bulwer treaty, which stood in the way of building any canal, he has secured the building of the canal for the benefit of Great Britain at the expense of the United States, relieved Great Britain of all responsibility about it now and forever, and imposed upon the United States stringent rules of neutrality as to Great Britain and all mankind."

CHOATE'S SUBSTITUTE FOR ARTICLE 3A

"Assuming that some such article must be retained, how would this do: In view of the permanent character of this treaty, whereby the general principle established by Article VIII of the Clayton-Bulwer treaty, is reaffirmed the United States hereby declares (and agrees) that it will impose no other charges or conditions of traffic upon any other canal that may be built across the Isthmus (or between the Atlantic and Pacific Oceans) than such as are just and equitable, and that such canals shall be open to the subjects and citizens of the United States and of all other nations on equal terms."

The foregoing declaration "that such canals shall be open to the subjects and citizens of the United States and of all

other nations on equal terms" shows the equality contemplated by the negotiators of the Hay-Pauncefote treaty. It conclusively shows that it was not intended to exempt any of our traffic (coastwise or other) from the payment of its proportionate share of tolls.

Great Britain insisted on safeguarding the "general principle" from impairment even should the United States become sovereign of the Canal Zone. Ambassador Choate, in a letter dated September 21, 1901, writes that Lord Landsowne stated:

"It was quite obvious that we might in the future acquire all the territory on both sides of the canal; that we might then claim that a treaty providing for the neutrality of a canal running through a neutral country could no longer apply to a canal that ran through American territory only; and he again insisted that as Lord Lansdowne had insisted that they must have something to satisfy Parliament and the British public that, in giving up the Clayton-Bulwer treaty, they had retained and reasserted the 'general principle' principle of it; that the canal should be technically neutral, and should be free to all nations on terms of equality, and especially that in the contingency supposed, of the territory on both sides of the canal becoming ours, the canal, its neutrality, its being free and open to all nations on equal terms, should not be thereby affected; that without securing this, they could not justify the treaty either to Parliament or the public; that the preamble which had already passed the Senate was not enough, although he recognized the full importance of the circumstance of its having so passed.

"I then called his attention to your Article IV, in your

letter, which did seem to me to cover and secure all that he has claimed and insisted on. He said, no, that it only preserved the principle of neutralization, which it might be insisted on did not include freedom of passage for all nations and equality of terms and that without an explicit provision, which should leave that free from doubts, he could not expect to sustain it before the Parliament and people. I insisted that those ideas were already included in your fourth, i. e., within the words, the general principle of neutralization,' especially in the light of that phrase as used in the preamble, where it is 'neutralization established in Article VIII of the ClaytonBulwer treaty'; that if not included within that, it certainly was in the phrase, ‘obligations of the high contracting parties under this treaty,' for what could be clearer than our obligation by Article III to keep it open and on terms of equality as provided there, and what you meant was that no change of territorial sovereignty should affect any of the obligations of the present treaty, including that. He still insisted that it should not be left to the construction of general clauses, but should be explicitly stated. Believing as I do that you had no thought of escaping from the obligations of Article III, Clause 1, in any such contingency as change of territorial sovereignty, and that you had intended it to be included in your language in IV, I wrote down the words, 'or the freedom of passage of the canal to the vessels of commerce and of war of all nations on terms of entire equality and without discrimination, as provided by Article III,' and asked him if those words were added to your IV if it would satisfy him as a substitute for Lord Lansdowne's 3A. He said it would, and with those words added the treaty could, he thought,

be sustained before Parliament and the British public; that he should approve it and he thought Lord Lansdowne could and would, although it would have to be submitted to the Cabinet or to a majority of its members."

Article IV of the Hay-Pauncefote treaty, substituted for the foregoing Article 3A, reads as follows:

"It is agreed that no change of territorial sovereignty or of international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the high contracting parties under the present treaty."

In this connection, Senator Root properly observes: "The argument is made that this treaty is no longer binding because there has been a change of sovereignty. * The correspondence shows that that fourth article of the treaty was put in for the express purpose of preventing any such argument."

CHOATE'S SUMMARY

"I am sure that in this whole matter, since the receipt by him of your new draft, Lord Lansdowne has been most considerate and more than generous. He has shown an earnest desire to bring to an amicable settlement, honorable alike to both parties, this long and important controversy between the two nations. In substance he abrogates the Clayton-Bulwer treaty, gives us an American canal, ours to build as and where we like, to own, control and govern, on the sole condition of its being always neutral and free for the passage of the ships of all nations on equal terms, except that if we get into a war with any nation, we can shut its ships out and take care of ourselves."

These excerpts from letters by Ambassador Choate are interesting. They show that the general principle of neutralization of the Clayton-Bulwer treaty is continued unimpaired and that that obligates the United States to keep the Panama Canal open to nationals and non-nationals on equal terms. This means that the same tolls must be levied on equal units of traffic through the canal without distinction of flag, and that the American negotiators of the Hay-Pauncefote treaty did not intend to reserve the right of granting free transportation to American shipping-coastwise and foreign.

HENRY WHITE TO SENATOR McCUMBER

"My Dear Senator McCumber: In reply to your letter of 9th instant, which for reasons known to you only reached me three days ago, I send you the following brief account of my connections with the abrogation of the Clayton-Bulwer treaty and with the negotiations which subsequently took place relative to the Hay-Pauncefote treaties.

"In the latter part of December, 1898, being then charge d'affaires to Great Britain, I received instructions from Mr. Hay, who had left the London embassy a few months previously to become Secretary of State, to approach the British Government with a view to ascertaining whether, for reasons set forth in his dispatch, it might not be possible to secure such modifications of the ClaytonBulwer treaty as would admit of our Government's taking action whereby the construction of an interoceanic canal under its auspices might be accomplished.

"I, of course, lost no time in seeking an interview