two great oceans, in any way destroying or impairing the equal use of it on the part of all the commercial nations of the world?

The reason why the United States is going wrong in this matter is, as it seems to me, that she has forgotten what she declared so persistently in the earlier stages of this great project—that whoever builds the canal, whoever pierces the great barrier of the Isthmus and weds the two seas, must do it for all mankind; and if the thing has that broad human character and world-wide interest, is it not better for all the maritime nations to recognize the fact and make such agreements among themselves as will preclude, as has been done for forty years in the use of the Suez Canal, any of these bickerings and heart burnings that are so to be regretted between countries that ought to be the best of friends?

Mr. LEWIS NIXON. Mr. Chairman, I make it a point to never take offense at what is said before my face, but had I not remained over, contrary to my original plans, my statements would have been put before you by the gentleman and I would have stood before you as one who had made a statement which was not exactly correct. That in itself by Mr. Kennedy was most outrageous because it was supported by the facts submitted by the State Department, of record in Congress, and known to everyone that discussed the treaties here before us.

The treaty of February 5, 1900, was rejected by the Senate. Here (indicating) is the official document by the United States Government, submitted by Mr. Root, prepared by Mr. Hay, and it says:

The Senate's amendments to the former treaty required, first, that there should be in plain and explicit terms an express abrogation of the Clayton-Bulwer Treaty; second, that the rules of neutrality adopted should not deprive the United States of the right to defend itself and to maintain public order.

And, third, that other powers should not in any manner be made parties to the treaty by being invited to adhere to it.

Mr. KENNEDY. That second one is the one that was put in by way of amendment against Senator Morgan's objection.

Mr. NIXON. I know it was put in, and they rejected that treaty, and made a new one, and I have here a copy of it as it was sent back

to Lord Pauncefote. In other words, it was never confirmed, which means it was rejected, and when the treaty came back to them Great Britain would not accept the modified form, and the whole thing was thrown into the process of discussion, and we finally came to the treaty of 1901.

Mr. KENNEDY. I want to disavow any intention to be discourteous and to say that I did not mean and do not now mean to impugn the gentleman's honest and honorable intentions; but I do say that the treaty which Mr. Nixon has there on the placard as having been "Rejected by the Senate," was ratified by the Senate, and that the only reason that it was finally rejected-because you understand when the rejection of Great Britain came back to the Senate, the Senate had to act on that was on account of that second amendment to which you have referred.

Mr. NIXON. It was ratified by the Senate, with certain amendments, and I have not got the amendments in there, so that is the treaty. I do not want to make any error when I present a statement of absolute facts. That is the draft of the first treaty submitted.

Mr. KENNEDY. The thing you emphasize as being pro-British and that you have in there in red letters was the thing that the Senate ratified.

Mr. NIXON. I do not know whether they did or not. inal draft was not ratified.

Mr. KENNEDY. I beg your pardon!

Mr. NIXON. Some parts of it were kept in.

That orig

Mr. KENNEDY. The treaty which you have presented in that shape, the two being distinguished from each other, is a treaty that the Senate did ratify, but which, on account of a subsequent amendment against Senator Morgan's advice, was rejected by England and then

Mr. NIXON. (Interrupting) I admit that.

Mr. KENNEDY. And then, when England's official rejection came back, the Senate could not ratify it again because it already had ratified it with that amendment, and it had been rejected by England. In other words, if Great Britain had not rejected the treaty just as it is there, with your red letters, it would have been the law today.

Mr. NIXON. The only point is that here are two state documents. I took the first draft submitted by President McKinley to the Senate. I took that from the treaty, and the treaty that was sent back was not the same. I have Senator Foraker's statement that it was ratified with certain amendments. It may be I have some wording of the ratified treaty in there.

Mr. KENNEDY. You have it all.

Mr. ALBERT BUSHNELL HART. Mr. Chairman, may I ask Mr. Kennedy a question? Suppose you wrote a letter to a man and said, "I will give you five dollars per ton for a carload of coal." Suppose he wrote back and said, "I accept your offer provided you make the price six dollars per ton." Is your contract ratified by that man?

Mr. KENNEDY. You do not need to ask that question of Mr. Kennedy or anybody else.

My complaint is that the provisions which Mr. Nixon has stated were pro-British and anti-American in his discussion of the treaty are the very things that the United States Senate accepted without change. The other amendment had nothing to do with the matter except, as Senator Morgan said, to nullify the whole business if the specified contingency arose.

Mr. NIXON. If I had not been here, it would have been assumed I made a wrong statement, which I have not done. You said it was a most outrageous presentation.

Mr. KENNEDY. I say it is a most outrageous thing to bring before a body of people that have debated this question, such a placard of the treaty, entitled, "Rejected by the Senate," and say these articles were pro-British and anti-American, and these other ones were the oppo

site, when the United States Senate adopted and ratified every one of the articles which you have shown to this audience under the title "Rejected by the Senate."

Mr. NIXON. That (indicating) was in the ratified convention and that (indicating) is the treaty that was rejected,-in other words, you say "changed" and I am perfectly willing to adopt your theory; but there is nothing outrageous in my putting it here, because I put it here for the purpose of exhibiting to the members the meaning of the words "all nations," and that is all my purpose, to show that it did not include the United States.

Mr. KENNEDY. As soon as Great Britain was notified of that one amendment, the treaty which she would have ratified, and which the Senate had already ratified with that amendment, was returned to the Senate because Great Britain would not agree to it so amended.

Mr. WILLIAM MILLER COLLIER. Mr. Chairman, I want to say one word, with reference to the closing remark of Mr. Kennedy in his support of a measure of the policy of neutralization of the canal.

He says if God had made a strait where He made an isthmus, no nation that believes in the freedom of the sea would have permitted itself to have been excluded from the use of that canal! But God did not make a strait; He made an isthmus, and the barrier that He erected there was a bulwark for the defense of the western coast of the United States from any foe coming from the Atlantic, and a bulwark for the defense of the Atlantic coast against any foe coming from the Pacific. If a man can tear down that barrier and open that passageway, he certainly has the right to use that canal in such a way that it shall not be made a means of easier access to his coasts by his enemies.

The CHAIRMAN. Gentlemen, if there is no further discussion, I shall declare the discussion closed and pass to the next subject.

I am very happy to announce that our next speaker is Mr. Horace G. Macfarland, of the Bar of the District of Columbia, who will present his contribution upon the question, "Would a subsidy to the amount of the tolls granted to American ships passing through the canal be a discrimination prohibited by the treaty?"

I take pleasure in presenting Mr. Macfarland.

WOULD A SUBSIDY TO THE AMOUNT OF THE TOLLS GRANTED TO AMERICAN SHIPS PASSING THROUGH THE CANAL BE A DISCRIMINATION PROHIBITED BY THE TREATY?

ADDRESS OF MR. HORACE G. MACFARLAND, of the Bar of the District of Columbia.

My endeavor shall be to present as fairly and frankly as possible the case for the affirmative of the topic assigned. That is, to maintain that a subsidy to the amount of the tolls granted to American ships passing through the canal would be a discrimination prohibited by the treaty.

The United States at the present time, independent of any limitations imposed by treaty, possesses full power to discriminate in favor of her own shipping, or in favor of the shipping of any other nation, in any manner whatsoever. Without attempting to define the precise legal status of the United States in the Canal Zone, I may state, in the words of Sir Edward Grey, that "the United States has become the practical sovereign of the Canal," and it indisputably follows that as such practical sovereign it has an inherent power to order its affairs within the territorial limits of its sovereignty as its good pleasure may to it dictate. Such rules and regulations as it may make as a condition to the use of its own property by others would be matter of municipal and not of international law.

But before the United States became sovereign of the canal, it entered into a certain contract, commonly called the Hay-Pauncefote Treaty, which superseded, except so far as by its terms it expressly keeps alive, an older contract, the Clayton-Bulwer Treaty of 1850. The inherent, wide, unrestricted powers of the United States as sovereign of the canal are on all sides admitted to be restricted and narrowed by this contract. The precise amount of such limitation and restriction alone is in dispute. So acts of state that would otherwise have been purely matters of municipal law, in so far as they are, or may naturally and properly become, or give rise to, breaches of the obligations and duties imposed by the Hay-Pauncefote Treaty, become cognizable in international law.

It has been proposed that the United States should exact tolls from all vessels, irrespective of their nationality, equal in amount and in manner of imposition on like classes of vessels, and should then, by