enlarge it so as to include felonies not capital, in which a conviction. does not involve capital punishment, then I should think it wise to let that class of cases go to the circuit court of appeals for the fifth circuit; for, while New York is practically as convenient to the Isthmus as New Orleans, it is not quite so near, and the New York court of appeals is so loaded with business that the circuit court of appeals of the fifth circuit could more rapidly dispose of the cases brought before it. Have I answered your question, Senator?

Senator HOPKINS. Yes; I think so. There is one other question that I want to ask: In the case of a man convicted of a felony there, the constitutional question could be raised as well as in a case where the criminal is to be executed, could it not?

Secretary TAFT. The constitutional question could.

Senator HOPKINS. Yes.

Secretary TAFT. It can now.

Senator HOPKINS. Yes.

Secretary TAFT. And if raised the case goes directly to the Supreme Court, and then the Supreme Court takes jurisdiction of the whole case, although the reason by which it gets jurisdiction is the occurrence of the constitutional question.

Senator MORGAN. There is another branch of the jurisdiction that I think ought to be vested in that court that we have given no discussion to, at least in this committee, and I have not heard of any discussion anywhere else about it, and that is the admiralty jurisdiction.

Secretary TAFT. I should think that the admiralty jurisdiction, especially when the canal is constructed, would be exceedingly important; but my understanding is that under this act of 1803 there would be no difficulty in giving that court admiralty jurisdiction. Senator MORGAN. Yes.

Secretary TAFT. Merely by the legislature-whether the Commission or whatever other body the President should constitute as the legislative body.

Senator MORGAN. The Commission have established two ports there, Ancon and Cristobal, and the Senate at least has voted at this session of Congress to regard those as ports of the United States for all purposes. The vote was taken on the ship-subsidy bill, and I do not know whether it is going to pass or not, but the Senate has expressed itself deliberately upon the proposition that those are ports of the United States. Being so remote from our part of the continent, I suppose that an act of Congress conferring admiralty jurisdiction upon the judge or judges within the Zone would be presently of great importance, and that we need not wait for the completion of the canal.

Secretary TAFT. I should think so.

Senator MORGAN. Because collisions and difficulties of a maritime sort will occur, and we should have a court there to settle them.

Secretary TAFT. Yes, sir. In the Philippines-and I speak of that because you will understand, Senator, that the law that comes down there is quite like that that we have in the Isthmus

Senator MORGAN. Yes.

Secretary TAFT. It is of Spanish descent, so to speak.

Senator MORGAN. It is the same law really, in a general sense.

Secretary TAFT. Yes. In the Philippines the admiralty questions were disposed of in a most informal way by an executive officer, the captain of the port. So that admiralty jurisdiction there, although expressly conferred by Congress, is very little used. With American ships and with the tradition among American shipmasters that they must go into an admiralty court, I have no doubt that the court, if given that jurisdiction, would find something to do.

Senator MORGAN. Well, I should suppose that they would find a great deal to do, possibly, upon the coastwise laws-adjudications in regard to interventions, and so forth.

Secretary TAFT. That may occur now that there is
Senator MORGAN. That may occur at any time?

Secretary TAFT. Now that there is a motive for evading that law.
Senator MORGAN. Yes.

(Thereupon the committee took a recess until 2 o'clock p. m.)

AFTER RECESS.

STATEMENT OF HON. WILLIAM H. TAFT-Continued.

Senator MORGAN. In your remarks, Mr. Secretary, you say: "With deference to the suggestion which has been made here, I venture to point out that were the Zone to be put under a military government, or to be constituted a military reservation, the only method of trial would be by court-martial, which is not supposed to be any less summary than the trial before civil judges."

Secretary TAFT. Of course that is not true with the suggestions you have made, Senator; and I quite concur that it is possible, under a military government, to have civil courts.

Senator MORGAN. The only question would be about the supremacy of the civil over the military authority in that Zone or military reservation, which could be regulated by parceling out the jurisdictions, if we chose?

Secretary TAFT. Yes, sir. I presume that under such a government constituted by Congress-I never have thought of the power to establish a military government under those circumstances, but my presumptions are ordinarily in favor of any power that Congress chooses to exercise and assuming that power, Congress could no doubt establish civil courts, even under a military government, and give an appeal to the Supreme Court.

Senator MORGAN. And leave the civil courts in the full possession of their jurisdiction, untrammeled by the presence of the military? Secretary TAFT. I think so; yes, sir.

Senator MORGAN. You say, "Señor F. Mutis Duran is a citizen of the Republic of Panama, one of the leading lawyers of the Republic, who speaks English and is an authority on civil law."

I have a doubt, Mr. Secretary, which I hope you will be able to resolve, as to the power of the Government of the United States to confer a part of the judicial authority of our Constitution and Government upon one who is not a citizen of the United States.

Secretary TAFT. I think that can be done unless there is a specific inhibition; and it has been done, so far as the Executive is concerned, in the appointment of consular agents and vice-consuls, and even

consuls. Unless forbidden by Congress, I do not know why there would be any less power to appoint a judge who was not a citizen than there would be to appoint a member of the executive. In other words, I do not see the distinction between the three powers in that regard.

Senator MORGAN. On the part of the President, it seems to me that the distinction would be that in the appointment of foreign minis ters, consuls, and other representatives of the Government abroad, he acts under his diplomatic powers conferred in the Constitution; while in the appointment of a judge of a court he acts under the Constitution of the United States and within the realm of the United States.

Secretary TAFT. With deference, Senator, it seems to me that the President, the Congress, and any of us that assume any authority to do anything, act under the Constitution; and the question is how the Constitution affects us in what we are doing. Now, where there is no express prohibition, I do not see where any implication would arise that would prevent the appointment of a judicial rather than an executive officer who may not be a citizen of the United States. I have never examined the question carefully; perhaps you have; but I had supposed that to be the result.

Senator MORGAN. I have never examined it with a view to any particular case, because I do not remember that any case of that sort has ever occurred, where a noncitizen has been appointed under the Executive authority to an office to be executed entirely within the United States.

Secretary TAFT. I agree that it is an anomalous precedent, but anomalous because the situation is rather anomalous there.

Senator MORGAN. I agree that the situation is anomalous, but I think that renders care for the preservation of the constitutionality of our action more important than if it were not.

Secretary TAFT. Do you feel quite sure that that is the way to feel, Senator, when you come to the question of excluding people from the Isthmus?

Senator MORGAN. Oh, I put that on the military power; not the judicial.

Secretary TAFT. I am not positive with regard to that matter. That is my impression only-that there is no limitation upon the power, and if you were to have to make selections of judicial officers under circumstances like those that prevail in the Isthmus-they are not at all unlike those that prevail in the Philippines-you would find it rather difficult to get judicial officers of sufficient legal capacity and learning who speak both Spanish and English, who speak two languages, and who are sufficiently familiar with the local laws to form part of the court.

Senator MORGAN. That difficulty could be overcome by removing their local laws and substituting Congressional or isthmian legislative action.

into

Secretary TAFT. I think it is unwise generally when you go a new country-or, rather, a country to which we are new-to attempt to remove the local laws that have grown out of the customs and with which the people are so very familiar. Of course I do not mean laws like judicial procedure, or the laws defining the relation of the

people to the Government; I mean the laws that control the rights of individuals with other individuals. It is generally contrary to good policy to attempt to introduce new things for people that have been accustomed to and get along very well under the laws theretofore in force.

Senator MORGAN. That is true where you are attempting to conduct civil government for the sake of governing a certain place or a section of a country. But this canal proposition that we are trying to work out is altogether different from that, as the President has announced in his determination in respect of the establishment of government there that it is not for the purposes of colonization of any part of that country for legislative or other civil uses, but for the purpose of constructing the canal. And therefore I believe that any Spanish law there we will call it Spanish, because it came over to us from Spain-no matter if it is a good one, ought to be supplemented by an American act, either an isthmian act or other act of Congress, and that everything inside of that Zone ought to be American-that is my view of it-in order to make it successful. Then you get rid of the questions that must arise every day.

For instance, there is a judge who is a citizen of Panama. The people living in that Zone are not affected as to their citizenship of the Republic of Panama by anything that we have done, or, perhaps, by anything that we propose to do. The citizens of the United States who are there have retained their citizenship, and so the employees of the canal have retained their citizenship; and we have a great variety of citizenships within the Zone. Now, it is not necessary, it seems to me, and I think it is dangerous, to have a code of laws there which one class of people, who are citizens of Panama, are controlled by and are used to, and to which our people who go there are entirely unaccustomed.

Of course the problem would work out in the course of administration into a great many different controversies a great many. But if a citizen of Panama is sued by a citizen of the United States in that Zone, the question at once recurs whether we shall appeal to a citizen of Panama who is on the bench to decide the case, because he is better informed about the law of Spain than anybody else, or whether the American judge shall have a word to say about it, or important influence in the trial.

I think it is unfortunate that there is any admixture of citizenship upon that bench. I think we had better, as it is an easy matter, or at least comparatively an easy matter, to have American laws and American judges to administer them. That is my judgment.

Secretary TAFT. Certainly if the committee or if Congress think that that is the best policy, I would not say a word to dissuade them from it.

Senator MORGAN. No; I suppose not. I called your attention to it merely with a view of getting your opinion upon that subject. Secretary TAFT. Yes, sir.

Senator MORGAN. You speak of a "passive resistance" of the Government and people of Panama, those who reside outside of the Zone and those who reside in it, which they exercised to such an extent that it was necessary to provide for its removal or its modification by an agreement with that Government. I suppose that passive resistance had reference almost entirely to questions of trade?

Secretary TAFT. What I meant there was this-I suppose "passive resistance" is the proper term to apply; General Davis will confirm what I say in that regard, I am sure that it was manifested in a declination to make any adjustment on the various questions that you can readily understand had to be adjusted in order that we should get along with them at all, as to jurisdiction along the boundary, the carrying out of the delimitation agreement, the marking of it, and the other matters that have to be settled if you are going to live in the same family with a man. As to those things they simply sat quietly, and would not do anything that the General was anxious to have them do. That is what I meant.

Senator MORGAN. Yes; I see.

Secretary TAFT. Not that they resisted anything that the General had the jurisdiction to carry out.

General DAVIS. It was a question of a reciprocal trade arrange

ment.

Secretary TAFT. Yes; it was a question of a reciprocal trade arrangement.

Senator MORGAN. Very well; that presents a situation that I am very anxious to get your views about and your recommendations to Congress upon. General Davis found himself embarrassed with respect to what we call "passive resistance" by the fact that the HayVarilla treaty did not specifically provide power in him or in the Government of the United States to dispose of the question by the decree of our own Government?

Secretary TAFT. Do you mean as to the boundary?

Senator MORGAN. As to all of these questions.

Secretary TAFT. Yes.

Senator MORGAN. I think I may take the liberty of saying, in order to justify my anxiety in having this matter properly understood in limine I do not mean in your examination, but in our legislationthat at the time the Hay-Varilla treaty was pending in the Senate there was opposition to its ratification, and various amendments, were suggested with a view of providing for a more specific delimitation of the boundaries of those two cities, which up to that time had had no boundaries at all; and also some more specific provisions in regard to the commercial intercourse between the Zone and the other parts of the Republic, relating to trade, etc. The hurry of putting through the ratification of the treaty prevented the consideration of those amendments.

Secretary TAFT. If you will permit me to interject there, Senator, I found in an examination some few days ago with a view to this hearing that there had been some correspondence between Mr. Bunau-Varilla and Mr. Loomis, of the State Department, on the question of the boundaries of Colon and Panama. He did not say that there were any limits, but he said: "Of course what that means is that the boundaries are the boundaries of the buildings that constitute the cities."

Senator MORGAN. Yes; well, we had several opinions from Mr. Bunau-Varilla upon that and other questions connected with that treaty while we were considering it, and we did not arrive at any definition beyond that vague one that General Davis encountered when he came to exercise his functions there; he found himself paralyzed because he did not know how far his jurisdiction went. Now,