Now, do you understand that Panama has the right to hold any election in the Zone? General DAVIS. No; and never attempted to. Senator MORGAN. And if attempted it would be stopped? General DAVIS. It would be stopped, I am quite sure; it would have been during my time and I presume it would be now. Senator MORGAN. It is a land of laws in which the people are supposed to be sovereign; it is a republic? General DAVIS. Yes. Senator MORGAN. And it has citizens residing there within the Zone who have the right to vote outside the Zone, but not within it? General DAVIS. Yes. Senator MORGAN. Now, I assume in the questions I will ask you that that zone is within the absolute sovereign authority of the United States Government for all purposes of government. If there are any trusts connected with it that we are bound to execute, that is a different question; but the right is within us. Now, in virtue of that duty, which is recited in the directions of the President to Secretary Taft, which has been read and inserted in the report, I find certain provisions that I wish to call attention to. In the seventh section or paragraph of the letter I find the following. This seems to be a bill of rights or restrictions upon the power of the isthmian canal government. "That no person shall be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall enjoy the right of a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be required nor excessive fines imposed, nor cruel or unusual punishment inflicted; that no person shall be put twice in jeopardy for the same offense, or be compelled in any criminal case to be a witness against himself; that the right to be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be passed abridging the freedom of speech or of the press, or of the rights of the people to peaceably assemble and petition the Government for a redress of grievances; that no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof." Those provisions seem to be restraints or prohibitions or limitations against the exercise of power on the part of the Commission, but they do not in terms, and perhaps not in intention, confer upon individuals who may be inhabitants of that zone the rights which are said to be protected here against invasion by the Commission. The important part of this matter that I would call your special attention to now is contained in the proviso: to "Provided, however, That the Commission shall have power exclude from time to time from the Canal Zone and other places on the Isthmus, over which the United States has jurisdiction, persons of the following classes who were not actually domiciled within the Zone on the 26th day of February, 1904, viz: Idiots, the insane, epileptics, paupers, criminals, professional beggers, persons afflicted with loathsome or dangerous contagious diseases; those who have been convicted of felony, anarchists, those whose purpose it is to incite insurrection, and others whose presence it is believed by the Commission would tend to create public disorder, endanger the public health, or in any manner impede the prosecution of the work of opening the canal, and may cause any and all such newly arrived persons or those alien to the Zone to be expelled and deported from the territory controlled by the United States, and the Commission may defray from the canal appropriation the cost of such deportation as necessary expenses of the sanitation, the police protection of the canal route, and the preservation of good order among the inhabitants." Has it ever occurred in your administration that you have found it necessary to exercise this power? General DAVIS. Several times, sir. Senator MORGAN. It is hardly worth while to give cases, but what would be the nature of such a case? General DAVIS. I could not remember names and I could scarcely remember dates with any precision; but I think a few individuals of those classes which sometimes arrive at our immigration stations in the United States from foreign countries and in whose respect the conditions were not fulfilled-that is to say, ones such as are described in that mandate of the President-were informed that they could get out of the Zone or be deported. In one case, I think I can remember one case where a man was put on board a steamer and sent out of the Zone, and the Commission paid the fare of that man to get rid of him. I can not remember whether he was a gambler or whether he was a crook, but he was some sort of an individual of that kind as I recall it; I can not remember the exact facts in connection with it. I think Governor Magoon has made use of that authority several times since he assumed the government. Senator MORGAN. In the instances you refer to where you exercise the authority was it done by the vote of the Commission? General DAVIS. No, sir; it was done as an executive act, the governor being charged with the execution of the laws, and this being one of the laws that were to be executed. I considered this order of the President as legislation, and acting within the provisions of that law and as a representative of the Commission I executed the law. Senator MORGAN. Now, we may all assume, for there will be no disputation about the point at all, that there is no State or Territory in the Union, on the continent here or under our control, where the governor of such State or Territory, or any other power of the United States, has the right of banishment. General DAVIS. No, sir. Senator MORGAN. This is the only case in which it exists? Senator MORGAN. Is that an important power to be exercised there? General DAVIS. I think it ought to be retained by all means. Senator MORGAN. Now, General, in time of peace that power could not be exercised by any judicial or executive tribunal in the United States except within a territory or zone that was placed under military law, being made a military reservation; so that if you would undertake to exercise this authority anywhere in that zone or anywhere else under the laws of the United States or any other laws you must apply to the situation, as I understand it, the laws of military power just as they apply to a military reservation in the United States. Senator HOPKINS. Would not that depend upon the question as to whether the Constitution of the United States extends over that territory? If it does not, then there is no legal objection to a civil officer exercising power of that kind. Senator MORGAN. The Constitution of the United States, in my judgment, is overwhelming in its application to all situations, both of war and of peace. A state of peace in a country invokes and puts in operation the laws of peace; a state of war puts in operation the laws of war; but we have a further provision of the Constitution upon which is predicated the right to establish rules and regulations for the government of the Army and the militia, which has always been applied, and I think with entire sanction of all authority-the Supreme Court and all other authorities-to any reservation set apart for military purposes, although the country may be in a state of peace. We have here now, as I understand it, many military reservations in the United States where there exist provost courts for the administration of the civil law within the reservation, at the same time the predominant, the paramount law is military; and at military posts and forts, or any such place-an arsenal, for instance the commandant has the right to exercise military power for the purpose of maintaining peace and order and preventing any of these things that are suggested by this letter of the President to Secretary Taft, and that is perfectly constitutional, as I understand it, and legitimate, and is according to the settled and uniform practice of the Government of the United States. The point I make about it is this: That this power can not be retained in any place over which the United States has jurisdiction except that place is under military regimen. If you put it under military regimen the power is perfectly legitimate; if you take it out of that regimen it is unconstitutional, and would not be enforced by any official, executive or judicial, in any of the States, or by the Federal Government. Now, in organizing the civil courts in the Zone, you have conferred upon them the power to issue all the rights that belong to courts? General DAVIS. Yes. Senator MORGAN. Writs of habeas corpus? General DAVIS. Yes. Senator MORGAN. And writs of execution, and so forth? Senator MORGAN. Even to the extent of taking a man's life by hanging? General DAVIS. I can not remember what the punishment is for the capital offense, but it is according to the code, and the code is printed here in one of the books. I never had occasion to carry out the law in a capital case. Senator MORGAN. You have established a penitentiary there? General DAVIS. We have established a place called the penitentiary; it is a lockup. Senator MORGAN. That is a penitentiary? General DAVIS. Yes. Senator MORGAN. And there are numerous convicts there? General DAVIS. Yes. PC-VOL 3-06-21 Senator MORGAN. And have been heretofore? General DAVIS. Yes. Senator MORGAN. Convicted of various offenses which are punish able by the statutes of the Zone? General DAVIS. Yes. Senator MORGAN. Punishment by confinement and hard labor? Senator MORGAN. Now the power to pardon has also been exercised by the governor. General DAVIS. And delegated to him by the order of the President. Senator MORGAN. Yes; delegated to him by the order of the President. General DAVIS. Yes, sir. Senator MORGAN. So that there is a certain delegation of civil power there which is exercised in harmony with this power of punishment? General DAVIS. Yes, sir. Senator MORGAN. Under the same code and same letter? General DAVIS. Yes, sir. Senator MORGAN. Yes. Inasmuch as such powers under the Constitution of the United States and under the form of our government can not be exercised at least toward citizens of the United States and can not be exercised, indeed, toward any persons except through the military arm of the government, is it not logical and do you not think it is our duty to declare that the government of that Zone shall be a government of a military reservation? General DAVIS. Well, Senator, in your long question, or the prelude to it, you made a statement that provost courts were invoked or that they were used to carry on government within a military reservation, and, as I understood you to say, in time of peace? Senator MORGAN. Yes. General DAVIS. That is hardly a fact. The provost court is an instrumentality, the will of the commanding general, exercised only in time of war. I have used that in time of war, but never in time of peace; nor have I ever seen a case where the provost court, so calledthat is to say, a military officer or a group of military officers sitting as a tribunal with military bailiffs and military attachés-has ever sat in time of peace; I have never seen it. Senator MORGAN. Your experience has not been so extensive as mine. After peace was proclaimed in the South, and ratified in every possible form, the provost courts down there continued to perform their functions. General DAVIS. That was a military occupation that followed the conflict. Senator MORGAN. Yes; a military occupation is the very point I am going on. I insist that we ought to characterize the occupation of the Canal Zone by the United States as a military occupation, not a civil occupation merely; not for the purposes of ordinary civil government, but a military occupation, so that this order of the President can be justified-which is exactly right; and all of these other laws should be justified where the writ of habeas corpus is within reach of the governing power, the judicial power, or the governing power, and its suspension may be lawfully made without the order of the President of the United States or by any act of Congress. What I am trying to do is to get this judicial system in the Zone in something like a logical arrangement, comporting with the principles of the United States which are declared here in the bill of rights, and I understand you to say that you do not think it would be safe to dispense with this right of banishment? General DAVIS. No; but I call it eviction; it may be the same thing. Senator MORGAN. Yes; eviction is about the softest word that I have heard applied to it. Senator DRYDEN. I suppose the man that is put out doesn't know the difference. Senator MORGAN. And it extends to all classes of people without reference to citizenship, except the individuals that were there before a certain date? General DAVIS. Yes. Senator MORGAN. They are exempt? General DAVIS. Yes. Senator MORGAN. American citizens are not exempt? General DAVIS. You mean American citizens who were there anterior to this date? Senator MORGAN. No; citizens who have come there since then. General DAVIS. No, sir; they are not. Senator MORGAN. Taking an employee of the Government who may be a man getting $3,000 or $5,000 a year, who becomes a nuisance and a danger to the work we are carrying on there, this order gives you the power to banish him? General DAVIS. Yes. Senator MORGAN. Well, that power doesn't belong to any other official in the United States or scarcely in the world. At the same time it is legitimate, provided you put the character of the government upon the right footing, say in your law that this is a military reservation, and then the power comes from that fact, it is a military power exercised in a discretionary way, and the officer is protected. I think that one of the provisions in that law must have been suggested to the President's mind by the fact that certain aggregations or combinations or associations of laborers have grown up in the United States, and pretty much all over the world, which might be very disadvantageous in the canal. General DAVIS. Of course I can not say what may have actuated him in putting that language in the order. I do not imagine that he thinks the ordinary trades union as it is formed throughout the country would necessarily be a dangerous element. I do not think that that could have been in his mind, although of course I don't know about it. Senator MORGAN. Suppose some man, black or white or yellow or red-for you have all the complexions there that nature knows aboutshould come into that Zone for the purpose of organizing a strike among the laborers; would you be authorized to banish him under this law? General DAVIS. I should think the authority would be sufficient to send him away; yes. Senator MORGAN. And don't you think the necessity would be extreme that he should be banished? General DAVIS. I know cases of labor agitators in Porto Rico that were evicted under Spain, and I think ought to be evicted now at any time, and it would be a wise act to do it, in my opinion. |