Secretary TAFT. For that type of canal; yes. Senator MORGAN. Now, I have ventured to suggest this for your consideration, because I believe that you take a perfectly impartial view of this whole subject, and hope to be able to get your reflections upon it at a later date in these examinations. I think you perfectly comprehend the suggestion. Secretary TAFT. I do. I think that I could now give the only judgment I am likely to have. Such a plan would have the great advantage of building the sea-level canal part way, a large part of it; so that, should it be thought later on wise to change it, it could be more easily done than under any plan that has been suggested. Just what could be done, just how much it would cost to build the sea-level canal to Obispo, I do not know. I have been at Obispo myself and I should say, as a layman, with a curbstone opinion, that it was very solid there, judging by the quality of the rock that had to be cut by the French in making the part of the canal prism which they have already attempted. But how expensive it would be to construct a sea-level canal from Obispo to the mouth of the Mindi, I of course do not know, and I venture to suggest that it might be better to ask somebody who can inform the committee, for I do not claim to be able to do so. Senator MORGAN. I merely assume that in respect of the sea-level plan through and through it will cost just as much between Bohio and Obispo as it would to dig out the same portion of the canal to sea level under this mixed plan. Secretary TAFT. Yes, sir. Senator MORGAN. So that there is no difference in the cost. Secretary TAFT. How large would you make that prism, Senator? Senator MORGAN. Well, that would depend. That would be for the engineers to say. I think that in the rock parts they propose to make it 200 feet wide. Secretary TAFT. Yes, sir. Senator MORGAN. And in other parts 150 feet wide-in the earthen diggings, where they can flatten the slopes of the canal so as to give greater seaway for the ships. That, I understand, is the reason why they expand the sea-level plan at certain places, and expand it more in the rock portions than they do in the earthen portions. Secretary TAFT. Yes, sir. Senator MORGAN. Because the banks of the sea-level canal have to be almost sheer; they have to be nearly perpendicular, while in the earth diggings they can have slopes, giving greater seaway. Secretary TAFT. You mean in the rock the sides of the canal will be perpendicular? Senator MORGAN. Yes. Secretary TAFT. You said in the sea-level canal. Senator MORGAN. Yes; and in the earth they can be spread out so as to give steering room to the ships. Secretary TAFT. Yes, sir. Senator MORGAN. I just assume what they state as being the right thing. I have no criticism to make upon any statement made by any engineer here at all. This plan I venture to suggest, further, would include what I consider to be an absolutely necessary preliminary to the control of the flood waters of the Chagres River-this diversion which is necessary and indispensable in building either canal, a lock canal or a sea-level canal. That diversion has to be made so that the work can be done in dry ground, or comparatively dry ground; and, when made, it ought to be made with care, so that it would stand there forever, for the purpose of making a diversion of the flood waters of the Chagres River, without which no canal can be safe. That is my theory. So that you think I would be at liberty to suggest such a plan as that, if it occurred to the committee that it was worth while to consider it? Secretary TAFT. I certainly do. Senator MORGAN. The first subject that you take up in your consecutive statement here, after the chronology-which I think is very admirable is: "The government of the Zone, its judicial system, and what is needed in the way of additional legislation by Congress.' I will take occasion, Mr. Secretary, to say that I am very happy to have a distinguished jurist here to pass upon these questions, because they are complicated, and so far as I am concerned, have given me a great deal of uneasiness. Secretary TAFT. Well, Senator, if I do not deny it, you will understand that it is not due to a lack of modesty. [Laughter.] Senator MORGAN. I will premise, Mr. Secretary, by a suggestion that I made at the time that we were acting upon the Hay-Varilla treaty, that the time would arrive when judicial questions of a very serious. nature would arise between the Government of the State of Panama— the Republic of Panama-and the United States in respect of our rights under this Bunau-Varilla treaty, or any treaty that we might make; and that those questions would first present themselves, I will say, to the Supreme Court of the United States as a matter of jurisdiction and power on the part of the government of the Isthmian Zone in respect of the rights of persons and property there. The first inquiry, as it occurs to me and I make this remark as a prefatory suggestion in regard to the questions that I propose to ask you is that the Supreme Court would necessarily inquire whether the authority that is being exercised in the Isthmian Zone was supported by the Constitution of the United States. That is the rudimentary question? Secretary TAFT. Yes, sir. Senator MORGAN. That is the basis question of all? Senator MORGAN. I do anticipate the time when these questions will necessarily arise. I think they have already arisen, in fact, in diplomatic correspondence between Mr. Hay and this other gentleman, Obaldia, which you have presented in your testimony yesterday. Secretary TAFT. Yes, sir. Senator MORGAN. We go back to the act of 1803, which had the approval of Thomas Jefferson, which all the Democrats, at least, consider to be something equivalent to an enunciation in the New Testament. [Laughter.] I have taken occasion, although I am a sound Democrat, to question some of those propositions, particularly that act. All that is done in the Canal Zone, as I understand it, is done under that act or under the law of the land, as it has been denomiPOVOL 3-0650 nated here, that came over to us, we will say, through the acquisition of that Zone from Colombia to Panama and from Panama to us-the law of the land. The legislation of Congress in the Spooner Act and in the subsequent act applying this act of 1803 to the government of the Canal Zone and the law of the land thus described is what has come over to us as the basis of all juridical action in the Zone. That is correct, is it not? Secretary TAFT. Yes, sir. May I state what my theory of it is? Senator MORGAN. Yes; if you please. Secretary TAFT. The Spooner Act enabled the President to make the Hay-Varilla treaty. The Hay-Varilla treaty was made, and such rights as the United States received in the Zone were received by the Hay-Varilla treaty. Then, by the act of April 28, 1904, the President was directed to take possession of that Zone, and then was given the powers under the act of 1803, if we may call it such, or an act like the act of 1803. And I ought to say that that act was followed not only in this case, but also in the case of the Philippines, so that if Congressional interpretation and action can establish validity by reason of custom, there seems to be a good deal of authority for the constitutionality of the act. But, however that may be, and assuming its constitutionality, it gave to the President the right to appoint a legislature and vested that legislature with legislative powers. From April 28, 1904, therefore, down to the expiration of the Fifty-eighth Congress, which was the 4th of March, 1905, there was power in a legislature, conferred by Congress a subordinate legislature to make laws for the Zone. The general rule, which I presume, Senator, you refer to when you speak of the "law of the land," is that where the control of territory passes from one government to another the laws which were in force as between individuals, not strictly governmental laws, but laws which are in force as between individuals, continue in force in the territory after the sovereignty changes, without any action at all. Senator MORGAN. Limited entirely to the rights of individuals. Secretary TAFT. Possibly that is too great a limitation; but, for the purposes of the discussion, I will accept that. Meantime, during this interval, the legislature had acted and had created a government. That property, that Zone, was in the jurisdiction of the United States by virtue of the Hay-Varilla treaty, which is the law of the land, and when the legislative power of the Commission ceased, when the act of April 28, 1904, ceased to have effect, there was an existing government, bound by existing laws, and those continued in effect, though the power to make them or amend them had ceased to be. Thereafter it was the duty of the President, under his constitutional obligation, to see that the laws were enforced, to continue to supervise that government and see that it carried out the functions as limited by the legislative acts which had theretofore been passed. Senator MORGAN. I do not make any question at all that the hiatus which was created there between the acts of Congress that you spoke of, the one expiring and the succeeding act, was properly occupied by the law as it had been enacted by the Commission, if that law was valid. Secretary TAFT. Yes, sir; but you speak of the hiatus. That hiatus continues down to the present day, Senator. Senator MORGAN. Well, I will bring it down to the present day, in so far as you had enacted laws up to the time that it commenced. Secretary TAFT. Yes, sir; I think I have answered your question. Senator MORGAN. Yes; you have answered my question, I think, Mr. Secretary, and I desire to express a dissent, merely for the sake of preserving my own attitude here. Secretary TAFT. Just to note an exception. Senator MORGAN (continuing). As to the remark that the Spooner Act authorized the President to make the Hay-Varilla treaty, my judgment is that it forbid him from doing it. Secretary TAFT. Well, I should like to keep out of the controversy, sir, as to the construction of that act. Senator MORGAN. That is a question that, I will admit, has passed by and is out of reach, because in its nature it is a political question and not judicial, and therefore the Supreme Court could never touch it. Do you think that that act of 1803, as reenacted-I believe exactly in terms by the act which you have just referred to, the date of which I do not recall Secretary TAFT. April 28, 1904. Senator MORGAN. Yes. Do you think that that act of April 28, 1904, adopting the act of 1803, conferred upon the President of the United States any powers that Congress could not exercise there? Secretary TAFT. Well, Congress could hardly exercise executive powers. Senator MORGAN. I mean any legislative powers or judicial power? Secretary TAFT. Congress could not exercise judicial power. It certainly did not confer any legislative power on the President's appointees that Congress could not have exercised. Senator MORGAN. You have stated on a previous occasion-unfortunately I have not the paper before me to call your attention to, but you will remember it-that the power that Congress might exercise within the Canal Zone was the same, or equivalent to the same, that it might exercise in Porto Rico? Secretary TAFT. Yes, sir. Senator MORGAN. That there was nothing in the political relation of the Zone to the United States that would forbid Congress from entering that Zone with all of its legislative powers as fully as it might in Porto Rico? Secretary TAFT. Yes, sir. Senator MORGAN. Congress could, therefore, adopt a form of gov ernment Secretary TAFT. Yes, sir. Senator MORGAN (continuing). Requisite, according to its judg ment, in the Zone? Secretary TAFT. Yes, sir. Senator MORGAN. And you do not admit or recognize the existence of any power in the Republic of Panama to make a question of the right of Congress to do that? Secretary TAFT. No, sir. Senator MORGAN. In that I agree with you. You say here [reading]: "Under the order of the President of May 9, 1904, power was given to exclude undesirable characters coming into the Zone from its territory, and this has been exercised, in cases of extradition of fugitives from justice from the Republic charged with misdemeanor, in lieu of a provision in the treaty of extradition covering misdemeanors." There is in the treaty with Panama a provision for the extradition of persons charged with misdemeanors? Secretary TAFT. I think not, sir. Senator MORGAN. You think there is not? Secretary TAFT. I think not. Senator MORGAN. You use the words "in lieu of a provision in the treaty of extradition covering misdemeanors." Secretary TAFT. Because there was not. That is what I meant. Senator MORGAN. You did not mean that it was substituted in place of it? Secretary TAFT. No, sir; I meant that there was no provision in the extradition treaty for the extradition of those who committed misde meanors. Senator MORGAN. I wanted to get your meaning about that. Secretary TAFT. Yes, sir. That is a little ambiguous, but that is what I meant. Senator MORGAN. Now, as to this power of the expulsion of people from the territory of the Zone, I admit, Mr. Secretary, and I do it with the greatest possible earnestness, that the possession of a power of that kind on the part of the Executive, operating in that Zone, is an absolute necessity to the construction of this work. I admit that; and if the President's order establishing that law in the Zone is constitutional, which I hope it may be, it is an important and indispensable part of our public service. Secretary TAFT. I am afraid, Senator, that there is lurking in your mind some doubt of its validity, and I would like to make a suggestion that probably would sustain it. Senator MORGAN. Very well. Secretary TAFT. Perhaps General Davis can advise me where I could find that order. I do not think I put it among my exhibits. Senator MORGAN. It is here somewhere. General DAVIS. That order of May 9? Secretary TAFT. Yes; which you drew and I amended. [Laughter.] General DAVIS. Here it is [handing paper to Secretary Taft]. Senator MORGAN. Just read it, and let it go into the record. Secretary TAFT. I drafted this, Senator, having in view the danger of invalidity which you have suggested. Senator MORGAN. Yes. Secretary TAFT. I understand it to be settled that due process of law must be exercised in depriving anyone of the right to be where he is when he is found within the jurisdiction of the United States. But the Supreme Court has gone very far in saying what provisions may be adopted for the exclusion of persons coming into the jurisdiction from outside. They have sustained immigration laws and Chinese-exclusion laws with some opinions that, to the democratic mind certainly, convey a bit of a shock-that a man can be sent out of the country by the decision of an administrative officer without having any judicial hearing at all. Senator MORGAN. That is, that he can be prevented from coming in and locating? |