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other implements of war necessary to their defense; neither could we
use our guns to resist a belligerent, for such resistance would involve
an act of hostility, and an exercise of the right of war, both expressly
and explicitly prohibited.

Sir Edward Grey admits in his letter of protest that if one rule of
Article III applies to us, all do, and that these absurd consequences
would follow, but seeks to escape by conceding that because of the fact
that the canal is located on our own soil, we must be allowed to commit
acts of belligerency, or defense within the canal or the waters adjacent
thereto.



162 JOSEPH BENSON FORAKER

His exact language is:

"Now that the United States has become the practical sovereign
of the canal, His Majesty's Government do not question its title to
exercise belligerent rights for its protection."

But our ownership of the canal territory had not been acquired or
even determined upon when the treaty was made; therefore, it follows
that we must have agreed to prohibit ourselves from all these acts of
hostility and war, if we located the canal on foreign soil, as it then
seemed more than probable we would, for it was not then known that
we would be able to acquire more than a mere license or easement.
And yet knowing that in such case we would not be allowed to use them,
we carefully reserved the right to build forts and prepare to defend
them. Certainly no such construction is permissible, since it would
be only sheer imbecility to reserve a right to protect our property only
on our own soil, where there would likely be less occasion to resort to
acts of war for its "protection" than if it were on foreign soU. The
British admission, however, explicitly exempts us from the inhibition
of all the rules relative to acts of war or "protection" ; and that exempts
us from all of them.

For neither Sir Edward Grey, nor anyone else, can make "fish of
one and flesh of another"; especially such fish and such flesh. Either
all the rules of Article III are applicable to us or none. If none is
applicable then we are not included among the "all nations," and can do
as we like with respect to our own.

Again, if the first rule is applicable, then we can not show any favor
whatever to either our ships of war, or our ships of commerce, either
foreign or domestic, or give to ourselves any advantage whatever in
either war or in peace.

We could not pass a warship, much less a fleet of them, or a govern-
ment transport even in time of war and dire necessity, except on full
payment of tolls.

If this be the proper construction of the treaty, then the United
States is in a worse condition with respect to the canal it has built, and
is to maintain and operate, than any other nation; since the result must
be that, in addition to the burden of first cost, we are bound to forever
bear the burden of maintenance and operation, without being allowed
to share in the use or benefits, beyond what all other nations may,
which have not borne any such burden in the past, and are not obligated
to share any such burden in the future.

If the canal had proven a failure, and we had been compelled to
abandon it midway its construction no one would have contributed a
dollar toward our reimbursement, and if its revenues prove insufScient
to meet operating expenses, or if perchance some time in the future, on
account of an earthquake, or from other cause, it should be destroyed,
no one would help us to bear the loss; and we would not expect any
such help from any source, and would not be entitled to it, because we
have proceeded throughout upon the theory that we were building at
our own cost and risk in every respect, and that we are so to maintain
it; all because the canal is primarily for our own benefit, first for our
national defense, and secondly for our commerce and other interests.



PANAMA CANAL TREATIES 153

NEtlTEALIZATIOlf.

It does not help that contention, as claimed, to refer to the fact that
it is recited in the preamble of this treaty that its purpose was to be
accomplished "without impairing the general principle of neutralization
established in Article VIII of the Clayton-Bulwer Convention." That
reference does not keep the Clayton-Bulwer Convention alive, or make it
applicable. Moreover, that declaration of the preamble is specifically
fulfilled by Article III, which expressly states precisely what the neu-
tralization shall be; or rather what shall be the basis thereof, thus
apparently allowing to the United States some latitude.

It is not necessary, however, for the United States to take any liberty
with the text of this treaty to uphold our contention, for the six rules
that form the basis of neutralization, if literally foUowed, fully authorize
and sustain it.

Nothing in the treaty helps our contention more than this word
"neutralization." Its meaning is well understood. It is the same
throughout the world, and in all works on International Law; but if
there were doubt as to its meaning, the rules themselves make specific
and perfectly plain what the contracting parties intended.

The well-defined and established primary meaning of "neutralization"
has reference to conditions of war, and the rights and duties of bellig-
erents. It will not be disputed that as to five of the six rules its meaning
is the same it has ordinarily, and, therefore, the same as it has when
applied to a neutral port. There can not be any neutral port unless
there are belligerents, and there are no belligerents in time of peace —
only in time of war.

Neutrality means the equal treatment of the belligerents compared
one with another; but not the equal treatment of belligerents with the
nation to which the neutral port may belong. Assuming the United
States to be the neutral nation, we could not show favor to one or the
other of warring nations without violating the rules of International
Law applicable, and thus laying ourselves liable to be called to account
by the injured belligerent. There is nothing in the treaty to indicate
that the word as used was to have any other than its ordinary meaning,
and this ordinary meaning has no reference to peace, or the conditions
of peace, but only war and the conditions of war; but if we are to
extend its application to rule one, and make it apply to tolls in time
of peace as well as in time of war, then, according to aU rules of con-
struction, neutrality in such new use would mean equal treatment
accorded by the neutral nation to other nations just as it does in every
instance under its familiar application.

It is impossible to think of any case of neutrality or "neutralization,"
whether peaceful or warlike, without at least three parties being con-
cerned, the neutral, who has no interest in the controversy, and the
parties thereto who are entitled to equal treatment as between them-
selves, and receiving that, have no claim of any kind against the neutral.

All things considered, the British contention is not only utterly
untenable, but also utterly unjust.

And yet, notwithstanding, it may be good policy at this time, or
become good policy at some other time, to recede from the exercise of



154 JOSEPH BENSON FORAKER

our right of exemption, and perhaps we should do so on the President's
recommendation, if he would not require us at the same time to abandon
our claim of power and write ourselves down as having been willing to
v'olate our sacred obligations, or of having been so stupid that we did
not understand them.

Placed on the ground that we have no right of exemption under the
treaty, the action we are asked to take is of the most serious character.

It not only means self-condemnation, but it also means the abandon-
ment for all time of a right which in the vicissitudes of our national
life may, under changed circumstances, be of value far beyond what we
can now realize or appreciate.

If we can not thus favor our coastwise shipping, which no foreign
shipping can compete with, of course, no such favor can be allowed to our
ships engaged in foreign trade, and as a result no advantage whatever
arises to our shipping of any class out of this great national work.

On the other hand, the exercise of this right to show favor to our
own ships in the use of our own property would go far toward obviating
the necessity of resorting to subsidies against which there is so much
prejudice that the proposition to abandon exemption and pay the tolls,
and then have the Government rebate the amounts paid in whole, or in
part, in the nature of subsidies has been assailed as a dishonest evasion
of our treaty obligations; although nearly every nation whose ships
sail through the Suez Canal has either in part, or in full, resorted to
the same method of lifting from such ships the burden of tolls they are
required to pay — among these nations Great Britain herself.

If we recede from the position we have taken, and ever reach the
point where, as a relief against the toUs, our vessels may be required to
pay, our Government shall undertake to subsidize it may be safely
assumed that we shall then hear another growl from the British lion;
for if they are to be allowed to dictate with respect to the use of our
canal to the extent now demanded, it will be found the more we yield
the more we will have to yield.

Sir Edward Grey has given us fair warning of all this in his letter
of protest. Speaking on this point, he tells us :

"Unless the whole volume of shipping which passes through the
canal, and which benefits aU equally by its services, is taken into
account, there are no means of determining whether the tolls charge-
able upon a vessel represent that vessel's fair proportion of the
current expenditure properly chargeable against the canal, that is
to say, interest on the capital expended in construction, and the
cost of operation and maintenance. If any classes of vessels are
exempted from tolls in such a way that no receipts from such ships
are taken into account in the income of the canal, there is no guar-
antee that the vessels upon which toUs are being levied are not
being made to bear more than their fair .share of the upkeep.
Apart altogether, therefore, from the provision in Rule 1 about
equality of treatment for all nations, the stipulation that the tolls
shall be just and equitable, when rightly understood, entitles His
Majesty's Government to demand, on behalf of British shipping,
that all vessels passing through the canal, whatever their flag or



PANAMA CANAL TREATIES 155

their character, shall be taken into account in flxinar the amount
of the tolls."

. . . if the effect of the method chosen for granting such
subsidy would be to impose upon British or other foreign shipping
an unfair share of the burden of the upkeep of the canal," the
United States would not have a right to grant such a subsidy.

This language means we not only have no right to exempt any of
our vessels, not even our warships, or government transports, from the
payment of the same toUs that the ships of all other nations may be
required to pay, but that in addition thereto we are to be limited in
the collection of tolls to such amount as may be sufficient for the
"upkeep" of the canal, and this "upkeep" is defined to be "interest on
the capital expended in the construction and the cost of operation and
maintenance."

What margin of profit will be allowed, and how much we will be
permitted to expend for operation and maintenance are not stated.

Neither does he allow us in the program he thus lays down to set
aside anything for a sinking fund, with which to retire the four hun-
dred millions of bonds our Government has issued.

When it is remembered that the tolls collected for passing through
the Suez Canal, which cost only one-fourth of what this canal has cost
us, are much higher than the tolls prescribed for the use of our canal,
and when it is further remembered that the only limitation found in
the treaty upon the amount of toUs to be fixed is that they shall be
"just and reasonable," this kind of language amounts to a species of
effrontery that it would be difficult to exaggerate.

It forecasts all kinds of trouble, annoyance, vexation and exasperation
with respect to the maintenance, operation and use of our canal, if,
instead of rebuking it, we complacently yield, for he plainly states that
"all vessels passing through the canal, whatever their flag, or their
character, shall be taken into account in fixing the amount of tolls."
This means that every United States battleship must be counted, every
Government transport must be counted, every other American ship
must be counted, and the amount of tolls collected therefrom shall be
the subject of an accounting, which Great Britain will have a right to
supervise, and take exception to at her pleasure, and that if any sub-
sidies are paid, they, too, shall be reported, examined and passed upon,
lest perchance she be required to pay more than her share.

The dispatches from Washington tell us of the expenditure of many
thousands of dollars in support of a propaganda started by the Car-
negie Endowment for International Peace to help secure the repeal of
the Exemption Act in the interest of international peace. This is an
even greater blunder than the policy of "watchful waiting." Both
alike may postpone, but neither can permanently prevent a rightful
settlement. Neither policy secures peace; both threaten war — men wUl
not submit to injustice; neither wiU nations.

Later, April 22, 1914, I elaborated all these points in
a statement I made before the Committee on Interoceanic



156 JOSEPH BENSON FORAKER

Canal of the United States Senate. In my opinion the aban-
donment of our right to discriminate in favor of our own
ships using the canal was an inexcusable surrender of an
American rigtht, for which we shall suffer, are already suf-
fering, serious injury and embarrassment. It is another
blunder added to a persistent long continued narrow and
un-American policy of refusing necessary help on account
of which the European war found us without a merchant
marine. In consequence although we have a great surplus
of non-contraband products for which other countries are
making unusual demand and are willing to pay unusual
prices, yet we have no ships of our own in which to carry
them to market. We are, therefore, learning the value of
American shipping at a cost of hundreds of millions to
the American people — many times more in amount than all
the ship subsidies proposed since the beginning of the Govern-
ment.

It is to be hoped that the lesson will be sufficient to teach
us to supply our needs in this respect ; and that the wrong
that has been committed will soon be undone by reclaiming
our own and using it as the men who provided for tihe
canal intended it should be used.



CHAPTER XXXVIII.

1902-1908

THE PHILIPPINE TREASON AND SEDITION ACT— AUTHOR-
SHIP OF SHERMAN ANTI-TRUST LAW— THE CHINESE
EXCLUSION BILL— DEFENSE OF GOVERNOR TAFT—
JOINT STATEHOOD— THE PHILIPPINE TARIFF— THE
SECESSION OF PANAMA.

FEBRUARY 6th, 1902, the Secretary of War, in re-
sponse to a Resolution calling for the same, sent to the
Senate a copy of what was called the Philippine Treason
and Sedition Act. When it was read from the Secretary's
desk, Mr. Hoar, addressing the Senate, said:

If I understood that correctly, a wife, knowing of what is alleged
to be the treason of a husband, or a husband knowing what is alleged
to be the treason of a wife, or a mother knowing what is alleged to be
the treason of a son, or a son knowing the treason of a mother, and so
on, of the son and the father and the brother — ^the person knowing that
and not acting as an informer to the government is, under a law imposed
by the authority of the United States, to be punished by seven years'
imprisonment. I should like to know whether that is true.

The Senator had reference to the following section of
the Act mentioned:

Section 2. Every person, owing allegiance to the United States or
the government of the Philippine Islands, and having knowledge of any
treason against them, or either of them, who conceals, and does not
as soon as may be disclose and make known the same to the provincial
governor in the province in which he resides or to the civil governor of
the islands or to some judge of a court of record, is guilty of misprision
of treason, and shall be imprisoned not more than seven years and be
fined not more than $1,000.



When the Secretary had concluded re-reading the statute,
in answer to Senator Hoar's inquiry, I sent to the Secre-
tary's desk and caused to be read the revised statutes of the

157



158 JOSEPH BENSON FORAKER

United States on the same subject, one of which sections
read as follows:

Section 5333. Every person owing allegiance to the United States
and having knowledge of the commission of any treason against them,
who conceals and does not, as soon as may be, disclose and make known
the same to the President or to some Judge of the United States, or
to the Governor, or to some Judge or Justice of a particular State, is
guilty of misprision of treason, and shall be imprisoned not more than
seven years and fined not more than $1,000.

A general debate followed, participated in by a number
of the Senators, with the result that it was made quite clear
that our Commissioners in the Philippines, in enacting the
legislation complained of, were but following our own
statute and applying to the Filipinos precisely * what our
fathers had from the beginning of our government applied
to the people of the United States.

Senator Hoar was quite sensitive over the matter. He
disliked exceedingly to have to admit that for thirty years
or more he had been a member of one House or the other
of the Congress of the United States, with such a provision
of law all the while in force, and during all that period had
not discovered there was any necessity for repealing, alter-
ing or amending it.

Always, until this encounter, he had been exceedingly
friendly in his relations with me. After this he did not
seem so cordial in his manner. The trouble was cleared
up, however, in a very accidental and somewhat amusing
way three or four months afterward. The Congress had
adjourned for the summer vacation and I had occasion to
be in New York. I was stopping at the Fifth Avenue
Hotel. I had retired rather early and was sound asleep
when I was awakened by hearing some one walking in my
room, in which there was no light. At once that awful
sensation came over me that there was a burglar in the
room. I listened intently and there was no mistake. I
could hear him distinctly as he, with evident purpose as I
supposed, to make as little noise as possible, seemed to be



PHILIPPINE TREASON ACT 159

carefully making his way toward the dresser that stood
against the wall about the middle of the room. Presently
he turned on the light. To my great surprise and my great
relief I recognized Senator Hoar as the supposed burglar.
About the same instant I recognized him he looked toward
the bed and recognized me. Explanations followed to the
effect that he had arrived at the hotel from his home in
Massachusetts a few minutes before he appeared in my
room. He registered and was assigned to a room on the
next floor above and immediately over mine. After he had
gone to his room he recalled that he had written a letter
on the train which he desired to mail, and left his room
and went below for that purpose. Returning, he left the
elevator on my floor instead of his. He said the thing that
bothered him somewhat was that he had left his light burn-
ing, yet he felt so confident he was in his own room that
he accounted for that by supposing that in some accidental
way it had been turned off.

I was quite surprised to think I had retired without
locking my door ; a most unusual thing for me to do.

The whole incident was so ludicrous and at the same
time so humorous that it served to efface whatever of dis-
agreeable feeling he might have toward me, and from that
time on he was as friendly as formerly until we had another
clash over the secession of Panama.

I did not at any time have the slightest ill-feeling toward
him. He was a man of exalted character who enjoyed
to the fullest extent the respect and esteem of all his col-
leagues without regard to political differences. He had,
however, reached that stage where he was at times a little
bit fussy, and on that account prone to treat with impa-
tience, if not with petulance, any positive dissent from the
views he might advocate. He had also come to the point
where it was easy for him to think mistakenly that he was
not fully appreciated and that others were given credit to
which he was entitled.



160 JOSEPH BENSON FORAKER

The truth of history and justice to Senator Sherman
require that I should mention an instance of the kind:

Authorship op Sheeman Anti-Tkust Law.

May 20, 1903, at Chillicothe, Ohio, on the occasion of
the Ohio Centennial celebration, I delivered an address
entitled "Ohio in the Senate of the United States," in the
course of which, speaking of Senator Sherman, I said:

Many statutes bear testimony to his far-sighted wisdom as a legis-
lator. One of the most important was one of the latest.

It shows how clearly he understood the progress of changing con-
ditions and the legislative remedy to apply to correct apprehended evils
and abuses.

He was among the first to see the enormous combinations of capital
we have been witnessing and the temptation there would be to unrea-
sonable restraint and monopoly, and before others realized the danger
or comprehended that any legislation was necessary, or even appro-
priate, he had secured the enactment of what the whole country has
recently become familiar with as the Sherman Anti-Trust Law of 1890.

This address was printed in pamphlet form for distribu-
tion. A copy of it reached Senator Hoar. Thereupon the
following correspondence ensued:

WoRCESTEE, Mass.j May 28, 1903.

My Dear Senator: — I have received, I presume through your cour-
tesy, a very interesting address on "Ohio in the Senate of the United
States." It is a valuable contribution to history.

I observe that you say, p. 24, that John Sherman, "before others
realized the danger . . . had secured the enactment of what the
whole country has recently become familiar with as the Sherman Anti-
Trust Law of 1890." If there was any man in this world who did not
have anything to do with the Anti-Trust Law of 1890, it was John
Sherman. He had altogether a different plan of dealing with the
matter. The bill he introduced was amended by the Senate, and then
sent to the Committee on the Judiciary, and an entirely new measure
substituted for it, of which I wrote every syllable myself. It was then
carried through the Senate. The House refused to accept it. Two
Conference Committees were appointed, of both of which I was a
member, and the House finally yielded. Mr. Sherman was not a mem-
ber of the Conference Committee that finally agreed on a bill. Your
familiarity with parliamentary proceedings, which appear in the Record,
will enable you to readily verify the correctness of this statement.

I am, with high regard, faithfully yours,

Geobge F. Hoab.
The Honorable Joseph B. Fobaker,

United States Senator,

Cincinnati, Ohio.



SHERMAN ANTI-TRUST LAW 161

Cincinnati, Ohio, June 1, 1903.

My Dear Senator:—! am in receipt of your letter of the 28th ultimo.
What you say about the Sherman Anti-Trust Law of 1890 is entirely
new to me, and as surprising as it is interesting. I regret exceedingly
that I did not have the information you give before I prepared my
address. I shall at once have the subject looked up, with a view to
adding a footnote to the permanent record, if I can do so with pro-
priety, making proper corrections.

What you say affords another illustration of how credit in such
matters is sometimes erroneously given. In this instance, I have never
heard of credit being given to any one except Mr. Sherman. The law
is universally referred to as the Sherman Anti-Trust Law. I supposed
that was because the bill passed substantially as he introduced it, or
rather I would have so supposed if I had thought of it at all.

With sentiments of highest regard and esteem, I am.

Very truly yours, etc.,
Hon. George F. Hoar, J. B. Foraeeb.

Worcester, Mass.

COMMITTEE ON THE JUDICIARY.

United States Senate.

Worcester, Mass., June 27, 1903.

My Dear Senator: — We all know Mr. Sherman's great wisdom,
especially when he had to deal with questions of finance, in which he



Online LibraryJoseph Benson ForakerNotes of a busy life → online text (page 17 of 61)