fugitives to a foreign country. The case went to the supreme court of Vermont, and that court held that the detention was legal, and that he should be turned over by Vermont to the Canadian authorities. The prisoner brought the case by habeas corpus or writ of error, I have forgotten which-I think it was habeas corpus-to the Supreme Court of the United States. That was what brought about the discussion by Chief Justice Taney of this subject, and he held that the power to surrender criminals was a part of the treaty-making power. Senator TELLER. Undoubtedly. Senator SPOONER. And that that had been committed entirely to the Federal Government and it was impossible for Vermont lawfully to turn over this man to Canada. Senator TELLER. That is good law. Senator BAILEY. I want to afford the Secretary opportunity to say that he did not intend to imply that the Secretary of War alone could make an agreement when the same agreement made by the Secretary of State would require a ratification by the Senate. Secretary TAFT. I will take the opportunity. Senator BAILEY. In view of the fact that these notes which were submitted by you are to be published, I am sure you do not want to appear as contending that. Secretary TAFT. With reference to these notes, I want to say that I felt, as I was called before the Senate committee, I must give them just as they were. Senator BAILEY. That was proper. Secretary TAFT. And if I had ever thought, at the time of their being taken, that the matter was going to be examined of course I should have gone over the notes to correct that and should have taken care to state just exactly what I had in mind. If I may be permitted-leaving out altogether the question whether a modus vivendi can be conducted without a treaty and without authority-I would say that I think that when Congress and the Senate, by law and treaty, too, put an executive officer in a position where it becomes his duty to do something in a foreign country, the doing of which necessarily involves temporary arrangements in order to enable him to carry out that duty, then there may be power to establish a modus vivendi. Senator SPOONER. That is not a modus vivendi in a large sense. Secretary TAFT. I am treating it according to its literal definition, as a manner of living together. Senator SPOONER. Well. Secretary TAFT. The word "together" must be understood. It is a method of getting along. Senator TELLER. A method of getting over this difficulty; that is what it is. Secretary TAFT. Yes, sir. And it is on the theory that there was given to us by virtue of the action of the Senate, by virtue of the action of the House, a duty to perform in Panama, that thereby we acquired this authority to make these temporary arrangements. That is all I claim. And to say that one officer can do a thing and another can not, and thus deprive the Senate of its constitutional power, of course I do not claim that at all, and I should not like what I said to be so construed. The CHAIRMAN. There is one element of this agreement that has not been touched upon. You very frankly state to us that you think, so far as the legal-tender provision is concerned, it ought not to have been there; but there is also a provision there by which the executive officer entered into an agreement with the State of Panama to maintain, in various ways, the parity of their money. Now, do you think that an executive officer can enter into an agreement with a foreign government by which we agree to assist in maintaining the parity of their money? Secretary TAFT. Yes, sir; I think so in this, that where we are very much interested as executive officers in the maintenance of a stable currency, and where we have under any circumstances the necessity of drawing drafts on the United States and the use of those drafts will necessarily affect the parity and the conduct of the executive under that, I think the executive may agree so to discharge that duty as to assist in the maintenance of parity. The CHAIRMAN. Do you think that we could have made an agreement with Mexico, for instance, by which we could have agreed to maintain a fixed value for the Mexican coin in the Philippines? Do you think that any executive officer of the Government could have done that? Secretary TAFT. No, sir. The CHAIRMAN. Wherein is the difference? Secretary TAFT. Mexico is 7,000 miles away from the situs, the place in which the duty of the executive officer is to be performed. The CHAIRMAN. Still, the Mexican coin was the regular coin used there, was it not? Secretary TAFT. Yes, sir; but I do not think the Mexican coin and its presence in the Philippines are in the slightest degree analogous to the case of an agreement as to the coin that is to circulate inside of the zone in which we are to perform our duties and, indeed, where we are under the sovereignty of another government by virtue of the law and the treaty. Senator BAILEY. I was coming right to that point. Senator BAILEY. I was going to say, so far as the exchange agreement-the agreement to buy and pay for it in a certain kind of money-was concerned, I have no question of it. And so far as that assisted in maintaining the parity it was rather an effect under the law, although the purpose might have been to maintain it. But you were maintaining it by an indirect means. Senator SPOONER. You have got it. That is right. The CHAIRMAN. But the original agreement did contain an agreement with the Government of Panama that they would assist in maintaining the parity. Senator SPOONER. That is, that they would adapt the financial course and business of the Commission so that it would operate to assist in maintaining the parity. It was The CHAIRMAN. It seems to me that is drawing a rather fine line. If they can do it in one way, why can they not do it in another? Senator TELLER. It was more than an agreement to assist. that they agreed to maintain. We agreed to maintain a 40 per cent peso up to 50 cents in our money. 25534-10- 4 Senator BAILEY. I do not believe they would have the authority, generally, to agree that they would do all things necessary to maintain the parity. It seems to me clearly that they have not. I do believe, however, that they would have the authority to say, "As we must make payments here, we will agree to make those payments in your coin, or we will agree to buy exchange," because all of that was in pursuance of their authority to make these payments to the laborers and for other purposes. There you have a direct authority. Even though it is implied, it involves a direct authority to make payments, and you have a right to select the manner in which you make them, whether you make them in coin of one kind or another. Of course if you made them in anything except the legal-tender coin established by Congress you could only make them as people would agree to receive it. But when you go further and commit the Government of the United States to an obligation to maintain the parity of the coin of a foreign country, then I think you exceed your power. Secretary TAFT. May I call your attention to the language of two clauses here? Senator DANIEL. Will you kindly call attention to the language that is now being discussed? Secretary TAFT. It is right in this clause which I am going to read: The United States shall employ such silver coins in its disbursements in the Canal Zone and in the Republic so far as the United States may find it practicable and convenient. The CHAIRMAN. I think you have the right to do that. Senator BAILEY. To select the coin in which payments will be made? Secretary TAFT. It says further: The Isthmian Canal Commission shall cooperate- not that it shall establish, but that it shall cooperate. It reads: The Isthmian Canal Commission shall cooperate with the Republic of Panama to maintain the parity of the fractional silver coinage of the Republic of Panama with the gold standard by sale of drafts upon its funds at reasonable rates and on terms which will tend to prevent the disturbance of such parity. Senator SPOONER. You can do that; you have a perfect right to do that. Senator BAILEY. Yes. Secretary TAFT. We do not agree to maintain the parity, but we agree in the sale of these drafts, which we have to sell anyhow, to cooperate in the furtherance of this object. Senator DANIEL. Is that anything more than a declaration of your policy in the administration of the Isthmian Canal? Secretary TAFT. It occurs in a letter which I wrote. I wrote to them for the purpose of inducing Senator DANIEL. Where is that letter? Secretary TAFT. This is the letter, saying what I intended to do for the Commission, so long as I had control of the policy of the Commission. Senator DANIEL. I want to ask this question: As I understand it, this is your declaration to the fiscal commission of the Republic of Panama? Secretary TAFT. Yes, sir. Senator DANIEL. In which you declare what will be the policy of the Isthmian Canal Commission? Secretary TAFT. Yes, sir. Senator DANIEL. They had power to make all their arrangements? Secretary TAFT. Yes, sir.. Senator DANIEL. Is that anything more than a declaration that you would cooperate in a friendly way with them, in order that the parity of a fractional currency should be maintained? Senator BAILEY. It is more than a policy. Senator MONEY. That is what is the trouble. Senator DANIEL. He does not agree that he will maintain the parity, as I understand it. Secretary TAFT. As I understand the effect of the agreement, as I read it now, it was that the course-the executive course which was enjoined upon us-would be so shaped as to cooperate to maintain the parity. Senator SPOONER. You say here how you will cooperate. You say: I agree (that) the Isthmian Canal Commission shall cooperate with the Republic of Panama to maintain the parity of the fractional silver coinage of the Republic of Panama with the gold standard by sale of drafts upon its funds at reasonable rates and on terms which will tend to prevent the disturbance of such parity. That explains it all. Senator HALE. It is not declared that he will maintain the parity. Secretary TAFT. No, sir. Senator HALE. But with a view that it will be maintained he will do certain things which will operate in that way. Secretary TAFT. Yes; with a limitation that it should be reason able. The CHAIRMAN. You would not agree that the Commission would have the power to agree to maintain the parity? Secretary TAFT. No, sir. The CHAIRMAN. That is the point that I wanted to get your understanding on. Secretary TAFT. Not at all. Senator DANIEL. I understand from this, Mr. Taft, as I read your declaration of the proposition of the Republic as to making the United States currency legal tender, and also its own currency legal tender, on the same basis, that in brief is the proposition Secretary TAFT. It makes the American gold dollar a legal tender just as well as the dollar which it is proposed by them to coin. Senator ALLISON. They make it a full legal tender? Secretary TAFT. Yes, sir. Senator DANIEL. As I understand, the Canal Commission was to predicate its making the gold and silver coin of the Republic of Panama legal tender dependent upon the Government of Panama having first made the coin of the United States legal tender and having complied with the other requirements set forth in the agreement? Secretary TAFT. Yes; that is what I understand; but I do not claim that I had the power to make any such agreement. Senator DANIEL. I understand that. Secretary TAFT. It is put in there, and, as I said in my evidence here, it is there; but it is a mistake that it is there. Senator DANIEL. I just wanted to see if I understood the correlation of this thing. Senator TELLER. I spoke of the modus vivendi. Of course somebody could come back and say that there are cases where you do make those things, and they are absolutely necessary. In case of a conflict between nations they make those things and put them in force, but that is exceptional, and that does not arise out of the constitutional authority, but arises out of the general law of nations. With that exception I should stand by what I said. Senator BAILEY. In a nation which has no constitutional requirement that a treaty shall go to a particular body, but follows the general rule that the executive can not make a treaty, the question does not arise. Senator TELLER. When our armies were in Mexico we made an arrangement with Mexico. That was not submitted until long after, when the treaty was made. It was necessary, to close up the war and stop the hostilities, that something should be done as to the contending forces down there. That is an exceptional case, and that is not an authority that arises under the Constitution. That is something that arises from the law of war, which has been in force ever since men had wars. Senator HALE. You can not get any better definition of "modus vivendi" than the literal translation of it. All that it means is that you shall continue to live just as you are until there is some cause for change. And to substitute for the right to establish a modus vivendi, a right to establish something that is absolute and complete-a treaty, or the terms and provisions of a treaty-which must be considered by the two parties before it is perfected and must be approved by the Senate this is not a modus vivendi. (Thereupon, at 11.50 o'clock a. m., the committee went into executive session, at the conclusion of which, at 12.40 p. m., the committee adjourned.) о |