As applicable to a treaty, the court said:

"If the words be clear and explicit, leaving no room to doubt what the parties intended, they must be interpreted according to their natural and ordinary significance."

Nation, supra.)

As to the significance of the preamble,

U. S. v.. Choctaw

the preamble is no part of the act, and can

not enlarge or confer powers nor control the words of the act unless they are doubtful or ambiguous." (Yazoo & Mississippi R. R. v. Thomas, 132 U. S. 174; 33 L. ed. 302).

the preamble may be referred to in order to assist in ascertaining the intent and meaning of a statute fairly susceptible of different construction." (Price v. Forrest, 173 U. S. 410, 427; 43 L. ed. 749, 755).

(Italics in these quotations are mine).

It seems clear that unless there is ambiguity, doubt or uncertainty, the treaty must speak for itself. The presumption is that the contracting parties knew what they wanted, and had intelligence enough to use language that would clearly express their intentions.

common sense.

That is international law, common law, and

Senator Root deliberately reversed this well-settled rule of construction in both of his speeches and insists that the treaty must be construed in accordance with a theory that he has evolved from a heterogenous collection of declarations, none of which contemplated the conditions involved in the Hay-Pauncefote Treaty, and says (1914):

"You cannot give that construction to those words if there is any construction that can be given to them consistent with the declarations that I have been recounting here."

This abstract generalizing, projecting into the treaty from the outside, a meaning not otherwise to be found in it, suited his purpose at that stage of his argument. Later, for another phase of his contention, the language of the treaty being more useful, he blandly insists

"I do not know that any of us should assume to know better than the treaty makers or assume to know better than the treaty itself."

If he had consulted himself, and acquired this essential information earlier, before he began his discussions, he would have saved himself a deal of unnecessary labor, eliminated confusion, and facilitated a rightful and intelligent result.

If a tithe of the effort that has been expended to sustain the British contention in unearthing ancient and modern "instances" had been devoted to a reasonably careful examination of the treaties involved, it would have easily eliminated all supposed ambiguity and uncertainty. The effort has apparently been to create uncertainty by the introduction of matters aliunde, rather than to ascertain by ordinary analysis what the parties clearly meant by the language actually used. In passing for the moment this phase of the question, it is in point to remark that it is unfortunate that Senator Root and Earl Grey, while searching for "instances," did not prosecute their inquiries far enough to learn of the treaty between Great Britain and the United States of 1815, as the construction placed upon that treaty by Great Britain, as will appear later, distinctly and clearly negatives their whole contention. Not all of the pro-British advocates have ignored the contents of the treaty. A shining and conspicuous example is Professor Wambaugh, of the Harvard Law School. He has made a microscopic examination, and has subjected it to the acid test of an arithmetical or mathematical analysis. He finds that by actual computation, frills and all, "it contains fewer than nine hundred words,

and that only

"almost exactly six hundred words can be considered as indicating the rights and duties which it creates or recognizes."

There are other treaties and acts which use more words. "Six hundred words," he says, are not enough, and for that reason,

"however carefully framed, cannot cover the whole ground."

In the absence of knowing just how many "words" ought to be used in order to adequately cover any one of the many subjects involved in his postulate, a fact which the erudite professor has hitherto successfully concealed about his person, it would be an act of unwarranted temerity to criticize this mathematical demonstration. Its novelty is conceded, and the professor is entitled to the full credit of its discovery, but I venture in the absence of the necessary knowledge to question its utility.

In 1850 the foreign commerce of the United States aggregated in value $330,037,038, and we then carried of this amount $239,272,084, or 72.5 per cent.

The age-long dream of an Inter-oceanic Canal was apparently about to be realized by its construction at Nicaragua by private enterprise and capital. Great Britain, in the teeth of the Monroe Doctrine, claimed to have established a foothold at the Atlantic terminus of the proposed canal. Uninvited, under these circumstances, the United States and Great Britain entered into a contract known as the Clayton-Bulwer Treaty, by virtue of which they proposed to take virtual charge of a great enterprise, in the construction and maintenance of which neither of them intended to spend a dollar. They agreed that neither of them should acquire exclusive control over the canal, that they should not fortify it, and should not use their positions to procure any advantages that were not offered on the same terms to the other. In order to have an opportunity to use it themselves under all circumstances, it was necessary for them to protect it, and to guarantee its neutrality as against all other nations, and this protection and neutrality was therefore agreed to. The fact that it was thus protected and neutralized as to all other nations added nothing to their burdens, as such protection and neutrality was necessarily involved in their own protection. If the regulations and tolls imposed by the owner were not satisfactory or were discriminatory, on six months' notice the pro

tection and guarantee could be withdrawn by both or either of the governments. This great enterprise, to be owned and constructed and maintained at the sole expense of a third party, as to which they assumed no burden, for which they did not expect a full return, they proceeded to dedicate

"for the benefit of mankind on equal terms to all."

The lofty, but inexpensive altruism and philanthropy, with which they thus consecrated the investments of another, might well have challenged the admiration of the aforesaid mankind.

In 1901 the "Oregon" had made her spectacular and unparalleled trip from the Pacific to the Atlantic, arriving in time to be in at the death of the Spanish fleet, emphasizing the importance of a closer connection between the two coasts of the Republic, and the military necessity for the canal. The foreign commerce of the United States had then reached the sum of $2,151,935,411-$177,398,615 of which, or 8.2 per cent. (more than $60,000,000 less than she carried in 1850), was carried in vessels of the United States, and $1,974,536,796 in foreign vessels. The fact that in 1913 Great Britain paid 57 per cent. of the tonnage tax in the foreign trade in our ports, while we paid only 5.7 per cent., shows the relative interest of the two countries in ocean-going transportation, which, from a commercial standpoint, the canal was constructed to conserve. Then came the Hay-Pauncefote Treaty of 1901 covering the whole subject matter of the Clayton-Bulwer Treaty, but with profound and fundamental changes. While formal provision was made for its construction by "individuals and corporation," everyone knew that it was to be constructed by the United States, which was to be the sole owner, and it was agreed in Art. II. that it

"shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the Canal."

It is an old and well-settled rule of law that

"a subsequent statute revising the whole subject matter of a former one, and evidently intended as a substitute for it, al

though it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former.” (Bartlett v. King, 12 Mass. 537); Stewart v. Kahn, 78 U. S. 493; 20 L. ed. 176); Murdock v. Mayor, 87 U. S. 590; 22 L. ed. 429).

earlier statutes

by implication by the statute

was repealed which covered

the whole subject matter." (Smith v. Haverhill, 187 Mass. 325).

"The new enactment is substituted in place of all statutes previously existing, and becomes the sole rule of action." (Matter of Troy Press, 187 N. Y. 285).

The two governments, not content with leaving the construction of the Hay-Pauncefote Treaty to depend upon this rule of law, made "assurance doubly sure" and expressly provided by the first article of the new treaty, that

"The high contracting parties agree that the present treaty shall supersede the afore-mentioned convention of the 19th of April, 1850,"

so that it may now be safely said that the Hay-Pauncefote Treaty is "the sole rule of action" with reference to the existing canal. If this "rule of action" under the terms of the treaty is clear and unambiguous and not open to reasonable doubt, there is no warrant for going outside of its four corners for the intention of the parties thereto. Art. III. is the article upon which the controversy turns, and it reads as follows:

"The United States adopts, as the basis of the neutralization of such ship canal, the following rules, substantially as embodied in the Convention of Constantinople, signed the 28th October, 1888, for the free navigation of the Suez Canal, that is to say:

1. The canal shall be free and open to the vessels of com