Canal Bill Snag Inserted By Root.

New York Times 100 years ago today, August 11, 1912:
Bourne Amendment, Aimed at Water Lines, Drafted by Him, Seems to be Invalid.
SEE BLOW AT THE HAGUE
Senators Have a Revulsion of Feeling After Giving Free Passage to American Ships Despite Treaty.
Special to The New York Times.
    WASHINGTON, Aug. 10.— Great excitement was caused to-day when it was declared that the most radical of the amendments to the Panama Canal bill adopted in the Senate yesterday was drafted by Mr. Root. That was the amendment offered by Mr. Bourne of Oregon — an original Roosevelt radical — and passed by the vote of 13 insurgents, 7 regulars, and 16 Democrats. Still further excitement resulted when it was explained that the amendment was wholly unconstitutional, and unless rectified in conference would be thrown out by the courts.
    The alleged discovery of unconstitutionality came from the House, where members have been busy since yesterday studying the wholesale Senate additions to the measure. The Bourne amendment gives the Inter-State Commerce Commission power to investigate any corporation holding a water line which traffics other than through the canal, and which, if otherwise held, might compete with a railway owned by the same corporation.
    The commission, if it finds such joint ownership to exist, may either force a divestment of the water line — if it is "injurious to the public" — or lay down absolute rules for the water line's operation under its present ownership.
    The unconstitutionality is declared to exist in the fact that no standard is enacted whereby the commission shall determine what is or what is not injurious to the public. Discretion on so broad a subject — especially when that discretion involves depriving a corporation of property — is held to be a delegation of legislative powers, and therefore unconstitutional. Furthermore, no review of the order by a court is required, and it is suggested that that at once means there shall be no "due process of law."
    The text of the Root-Bourne amendment reads:

    Provided further, That whenever the Interstate Commerce Commission shall find after hearing, either upon complaint or upon its own motion, that any railroad company engaged in inter-States commerce other than through the Panama Canal owns or has an interest direct or indirect in the ownership of a line of water transportation, which if otherwise owned might compete with any line of railroad owned or operated by said company, and that the effect of such ownership is injurious to the public, the Interstate Commerce Commission shall require such railroad company to divest itself of its ownership or interest in such water line or shall require such water line to be operated under such restrictions and regulations as in the judgment of the commission, shall be necessary to protect the public interest.

    After the issue of an order by the Inter-State Commerce Commission under the authority hereby conferred, it would be unlawful for any railroad company to hold or operate such line of water transportation, except as permitted by such order.
    It really appears that Mr. Root in drafting the amendment was acting in perfect faith. But the crux of the excited discussions to-day was whether or not he had intentionally drafted an unconstitutional amendment so that the courts would destroy a provision that the treaty supporters were not strong enough to defeat in the Senate. Such a theory, they say, would explain the fact that seven regulars, ordinarily little in sympathy with such provisions, voted for the "radical" amendment.
    The seven regular Republicans who supported the amendment were Mr. Fall of New Mexico, Mr. Lodge of Massachusetts, Mr. McLean of Connecticut, Mr. Kelson of Minnesota, Mr. Perkins of California, Mr. Root of New York, and Mr. Townsend of Michigan. They, however, have another explanation of their action. They say the railroads realize that a majority of the Senate, like a majority of the House, favors the absolute divorce of rail and water transportation. Therefore the best they could do was to devise some means whereby — even though under close supervision by the Inter-State Commerce Commission — such joint ownership in particular cases whore the public was not harmed might be continued,
    The quickly drafted Bourne resolution was the result. Exactly what all this leaves of Mr. Bourne's radicalism is not apparent, though he still sends out letters signed by "Jonathan Bourne, Jr., President of the National Progressive Republican League." He was selected to present the amendment because of the distrust in the West and South of anything coming from an Easterner. That was why Mr. Root was silent on his own measure.
    Now that the House has discovered what it considers the faults in the Bourne amendment, an effort will be made to correct it in conference. Some standard and some sort of a process by law will be added, while the main purpose of the amendment will be left as it stands.

Revulsion of Feeling.
    Following the overwhelming vote by the Senate in passing the Canal bill yesterday, a revulsion of feeling has come to certain Senators. This is true even of some Senators who have fought for indirect favors for American bottoms. They now declare that while the refunding of tolls to American Ships after collecting them equally from ships of all nations would have been within the Hay-Pauncefote treaty, the bill as it passed the Senate, and which will unquestionably be signed by the President, is a gross violation of treaty rights. Only another violation of another treaty, they say, can keep this country from being humiliated at The Hague. If the case was prepared for arbitration, they do not think it would reach that stage because arbitration treaties with Great Britain would be declared inapplicable to the present case.
    According to these Senators, the heaviest blow at international adjudication of differences has been struck by the United States after this country had taken a most important part in the various Hague conventions. For a country like the United States, they say, to repudiate a treaty, particularly an arbitration treaty, cannot but strike directly at the very principles upon which The Hague tribunal was founded. Arbitration in the first place, they say, was intended to construe treaties about winch some doubt has arisen. But the vote in the Senate yesterday and two days before makes it certain that the Senate will again refuse to permit the Panama Canal tolls or any subject relating thereto ever to be sent to The Hague tribunal. The general treaty of arbitration with Great Britain will be discussed as not applying to a subject which the Senate has already declared to be wholly domestic.
    Whatever doubt may have existed as in the right of this country to grant free passage to our coastwise ships, there is no question, say these Senators, that the provision granting free passage to ships in the foreign trade is absolutely in contravention of the treaty. Yet the two clauses stand together as granting favors to American ships, and in the face of the two treaties applicable to the subject will be declared not susceptible of arbitration. The British arbitration treaty expressly declares for the arbitration of all differences arising under treaties, and the only exceptions are questions involving the National honor and the National integrity. Neither of these questions is involved in the Panama Canal, which was obtained under treaty with Panama, and subject to a previous treaty with Great Britain. But the questions arising under these treaties in the present temper of the Senate will be withheld entirely from arbitration on the simple ground that the canal is our property and nobody else's business.

Taft's Arbitration Aims Recalled.
    The irony of the situation, according to this view, lies in the fact of the recent effort on the part of President Taft to obtain a still more general treaty of arbitration with Great Britain. That proposed treaty, as urgently recommended to the Senate by the President, made no exceptions whatsoever as to the subjects that should go to arbitration. National honor and National integrity were presumably to be left to the fair-mindedness of an international tribunal.
    The granting of favors to coastwise shipping came after the President's recommendation, and the extension of those favors to the foreign trade was a logical step in the same direction. The repudiation of the arbitration treaty we already have is viewed as the only apparent method to prevent those favors from being overruled in open court, so that the final repudiation of the arbitration treaty will come as an easy deduction from the President's recommendation.
    An attitude like this announced by a great Nation like the United States, say these Senators, cannot but have a serious effect upon the international relations of the world. Senators declare in private conversation that it is a real blow struck at The Hague convention. After this, they say, The Hague tribunal as a dignified assembly is liable to be destroyed at the whim of any nation. And already the United States, which has, perhaps, done more than any other power to establish the tribunal, has, on a single question, deprived the tribunal of its most important jurisdiction. According to this view the action of the United States in regard to Panama sets back the whole movement toward arbitration to where it was twenty-five years ago.
    As a Republican Senator this afternoon expressed it, the Republican Administration, after all its recommendations for general arbitration, has piled up international complications that will tax the coming Administration to straighten out.
    "It just shows the humbug of the general arbitration talk," he said. "Now, if Gov. Wilson is elected he will have to straighten it out. He will have his hands full."
    Another Senator thus reviewed the situation;
    "In those days arbitration depended entirely upon the pacific intentions of the nations at difference. To a certain extent that is too narrow. But to-day the whole weight of the opinion of the civilized world is brought to bear with enormous pressure for the peaceable settlement of ordinary disputes of nations. But the United States, first in violating the Hay-Pauncefote treaty, and then, what is still more serious, taking a position which inevitably foretells the repudiation of the arbitration treaty with Great Britain, makes a wide gap in the public opinion of the world.
    "With the United Stales definitely against arbitration, it will again be left to the petty conveniences of quarreling States, which, rather than arbitrate, would stand pat or fight, and in case the United States is a party the tendency will be heavily against anything like a general settlement depending for its effectiveness on treaty agreements in the future. The credit of the United States in such matters is simply ruined.

Great Britain Alert.
    "Already there are signs that other nations are fully aware of the position we have taken. Great Britain, to begin with, is already leading in an effort to make us feel our isolation. The exposition which will celebrate the opening of the Panama Canal was intended to be an occasion for the gathering of all the nations of the world, for whose benefit, supposedly, the canal was dug. On that assumption the United States has invited the powers of the world to participate, while in Congress the benefits to the world have been destroyed. Great Britain has failed to accept the invitation. If other nations decline, it would cause no surprise, and, from an international point of view, the Panama Exposition already is laboring under a heavy cloud.
    "In more practical ways the United States may be made to feel the displeasure of the nations. Great Britain may easily embarrass us without referring to the canal. There is a fisheries treaty pending in the Senate now, in which the Senate has struck out several clauses. If Great Britain feels inclined, she may withdraw from the whole agreement on that ground and let the questions at issue take their course. The treaty protecting pelagic sealing has, so far, not been put in force by a law of the United States, and our payments under the treaty are six months behind. That treaty is with Great Britain, Russia, and Japan, and any one of them may take the ground that American failure to pay is another instance of American treaty violation and abrogate the whole convention. That would result in the destruction of the pelagic seal herds, and would be a long step backward in international affairs."
    It is thought that the first outcry of the matter will come from a part of the country that has been most anxious through its Senators for the repudiation of the Hay-Pauncefote convention. That is the Pacific Coast, where the shipping interests clamored for favors in passing through the canal. But the Panama Exposition will be held in California, and its managers are expected soon to appear in Washington demanding explanation of the failure of the participation of Great Britain and such other nations as remain aloof. There seems no way by which the Government at Washington can answer that demand, but Senators are hoping that it will serve to bring home to the country that there are practical reasons as well as reasons of honor for the observance of a treaty.
    It is not thought, however, that the Suez Canal will be used as a weapon for punishing the United States. It is considered that American ships should be excluded from the canal, but to do so would require the concurrent action of nearly all the nations of the civilized world. Such concurrence is practically impossible in this case. It has been suggested that Great Britain controls the canal, but this is not true. The canal is held by a stock company, and less than a majority of this stock is in the possession of Great Britain. But, aside from that fact, the neutrality of the canal is guaranteed by the treaty of Constantinople, which is signed by all the great powers of Europe, and Turkey and Egypt in addition. The United States is not a signatory, but it is not thought that she will suffer as a beneficiary.

Conferees to Adjust Differences.
    Little difficulty is anticipated in reconciling the differences between the Senate and House on the bill. A conference will be required mainly to smooth out the literary structure of the bill, and for discussion of the Senate amendment throwing open the canal to American ships engaged in foreign trade. The House bill favored free tolls for American ships engaged solely in coastwise trade, but withheld the privilege from those engaged in foreign commerce on the ground that such discrimination would be unfair to the ships of other nations.
    The House, in requesting a conference to-day, named as its managers Representatives Adamson, Sims, and Stevens of Minnesota. The Senate named Senators Brandegee, Bristow, and Simmons. That the Panama measure will not pass to final enactment as law without a further fight against the amendment permitting American registry of foreign-built ships owned by Americans was indicated late to-day when telegrams of protest were received from the Newport News Chamber of Commerce and other civic bodies in shipbuilding centres. The amendment put into the bill by the Senate opens the way to American owners of foreign-built ships to enjoy the privileges of American registry, provided they keep their ships exclusively in the trade to and from foreign ports. It is understood that many House members are demanding that, if foreign-built ships are permitted to fly the American flag, Congress ought also to pass a law permitting the importation without tariff dirty of materials used in the building of ships in American yards
    This demand has frequently been before both branches of Congress. The cost of manufacturing ships in the United States is much higher than in foreign shipyards, and it is contended that conditions would be somewhat equalized if the cheaper foreign materials could be imported without the payment of tariff.
    In the protest from the Newport News Chamber of Commerce it was stated that civic bodies in all parts of the country had been asked to join in demanding a full hearing on the "free ship" legislation before action is finally taken by Congress.