Page images
PDF
EPUB

depending upon whether the defendant is charged with the commission of an offense against the United States or of an offense against the government of the Canal Zone. (Act of September 21, 1922, c. 370, secs. 8 and 9, 42 Stat. 1004, 1005-6.) It appears that at the time Burban was tried and convicted the practice then was for the District Attorney to determine from the nature and character of the offense whether it was an offense against the United States or an offense against the Government of the Canal Zone, and where he concluded that the offense was one against the United States, to file the information in the name of the United States and to charge the commission of an offense against and in violation of a law of the United States; but where he determined that the offense was one against the Government of the Canal Zone, to file the information in the name of the Government of the Canal Zone and to charge the commission of an offense against and in violation of a law of that government. Following this practice, the District Attorney being of the opinion that the Narcotic Drugs Import and Export Act, supra, was a law of the United States and that a violation thereof was an offense against the United States, filed the information in the name of The United States of America v. Rafael Garcia Burban, and charged the defendant as follows:

"Rafael Garcia Burban on the 30th day of March, A. D., 1925, in the division aforesaid, did then and there at Cristobal, in the Canal Zone, on board the Steamship Oranje Nassau of the Royal Netherlands West India Mail Steamship Company, wilfully, unlawfully, and knowingly violate subdivision (c) of Section 2 of the Act of Congress of February 9, 1909, entitled 'An Act to prohibit the Importation and Use of Opium for other than Medicinal Purposes,' as amended by the Act of Congress of May 26, 1922, in that he, the said Rafael Garcia Burban, did then and there bring into the Canal Zone a certain quantity of cocaine hydrochloride, to-wit, one bottle containing twenty-five grammes, more or less, of cocaine hydrochloride, and so did then and there commit the offense of a felony, contrary to the law in such case made and provided and against the peace and dignity of the Government of the United States of America."

The information charged, and Burban was tried, convicted, and sentenced, and is now confined in a penitentiary, for the commission of an offense against the United States. Hence, in exercising the power of pardon, it must be assumed that Rafael Garcia Burban violated a law of the United States and was convicted of an offense against the United States.

Thus the question for determination is whether the Governor of the Panama Canal has the power to pardon the commission of an offense against the United States.

The consideration of this question requires a brief reference to the statutes and Executive Orders relating to the acquisition, construction, organization and government of the Panama Canal and the Canal Zone.

By the Act of June 28, 1902, c. 1302, 32 Stat. 481, the President was authorized to acquire from the Republic of Columbia, lands necessary for the construction of the Panama Canal, and upon the acquisition thereof to proceed with the construction of the Canal, to make rules and regulations for the preservation of order and public health within the acquired territory, and to establish judicial tribunals to enforce such rules and regulations. To assist him in this work, the President was authorized to appoint, by and with the consent of the Senate, an Isthmian Canal Commission of seven members, who were to be in all matters subject to his direction and control.

On November 3, 1903, a province of Colombia, known as Panama, and through which the Canal was to be constructed, declared its independence from Colombia; and on November 6, 1903, the United States recognized the independence of Panama. Wilson v. Shaw, 204 U. S. 24, 32. On November 18, 1903, the United States and the Republic of Panama entered into a treaty, by Article II of which the Republic of Panama ceded to the United States in perpetuity the use, occupation, and control of a zone of land and land under water for the construction, maintenance, operation, sanitation, and protection of the Canal, of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the zone being in the Caribbean Sea, three

marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific Ocean to a distance of three marine miles from mean low water mark. By Article III Panama granted to the United States all right, power and authority within the zone menticned and described in Article II. 33 Stat. 2234.

*

*

The Act of Congress of April 28, 1904, c. 1758, 33 Stat. 429, entitled "An Act to provide for the temporary government of the Canal Zone and for other purposes," granted to the President, until the expiration of the 58th Congress, all military, civil, and judicial powers, as well as the power to make all rules and regulations necessary for the government of the Canal Zone, and all rights, power, and authority, granted by the terms of the treaty to the United States, to be vested in such persons and to be exercised in such manner as the President directed for the government of the Canal Zone, and maintaining and protecting the inhabitants thereof in the full protection of their life, liberty, and religion.

Pursuant to the authority contained in the above Acts, the President created the Isthmian Canal Commission by Executive Order on May 9, 1904, and appointed a member of the Commission as Governor of the Canal Zone. The Commission was authorized and directed by the President to proceed with the construction of the Canal and, among other things, to legislate on all rightful subjects of legislation not inconsistent with the laws and treaties of the United States so far as they applied to the Canal Zone. In pursuance of this authority the Commission by Act No. 1 of August 16, 1904, established a judiciary for the Canal Zone, by Act No. 14 of September 3, 1904, established a Penal Code, and by Act No. 15 of September 3, 1904, established a Code of Criminal Procedure. The Penal Code defined various crimes and the Code of Criminal Procedure enacted that in the prosecution of offenses under the Penal Code the action shall be brought "in the name of the Government of the Canal Zone."

By Act No. 8, enacted on September 2, 1904, and entitled "An Act to provide for the organization of the executive branch of the government of the Canal Zone, Isthmus of Panama," we first find authority vested in the Governor to grant pardons and reprieves. This Act reads:

"By authority of the President of the United States, be it enacted by the Isthmian Canal Commission:

*

*

*

66 SEC. 4. The powers and duties of the Governor of the Canal Zone are as declared and set forth in the Executive Order, dated May 9, 1904, as follows:

666*

He (the governor) is hereby vested with the power to grant reprieves and pardons for offenses against the rules, regulations, and laws in force by virtue of action of the Commission or by virtue of the clause hereof continuing in force the laws of Panama. (Words in

parenthesis supplied.)

By the Act of August 24, 1912, c. 390, section 4, 37 Stat. 560, the President was authorized to discontinue the Canal Commission and thereafter to complete, govern, and operate the Panama Canal and govern the Canal Zone, or cause them to be completed, governed, and operated, through a Governor of the Panama Canal and such other persons as he might deem competent to discharge the various duties connected with the completion, care, maintenance, sanitation, operation, government, and protection of the Canal and Canal Zone.

Section 7 of this Act provided:

"That the governor of the Panama Canal shall, in connection with the operation of such canal, have official control and jurisdiction over the Canal Zone and shall perform all duties in connection with the civil government of the Canal Zone, which is to be held, treated, and governed as an adjunct of such Panama Canal. Unless in this Act otherwise provided all existing laws of the Canal Zone referring to the civil governor or the civil administration of the Canal Zone shall be applicable to the governor of the Panama Canal, who shall perform all such executive and administrative duties required by existing law."

It further provided, among other things, that "the disposition, treatment, and pardon of convicts shall be established by order of the President." This provision of law is still in effect. (Act of September 21, 1922, c. 370, 42 Stat. 1004.) By virtue of this authority the President, on May 13, 1914, promulgated the following Executive Order:

[blocks in formation]

"The Governor of the Panama Canal is hereby empowered to grant pardons and reprieves for offenses against the laws, orders, and regulations of the Canal Zone; and to commute sentences, and to remit fines and forfeitures. He may establish a system of paroling prisoners, and alter or amend the same from time to time."

This Executive Order was amended by section 1 of the Executive Order of March 5, 1924, to read:

"The Governor of the Panama Canal is hereby empowered to grant pardons, paroles, and reprieves for offenses against the laws, orders, and regulations of the Canal Zone. and to commute sentences and remit fines and forfeitures. He may establish by order a system for the pardon, parole, reprieve, disposition, or treatment of prisoners, and alter or amend the same from time to time."

The above Executive Order was amended by the Executive Order of December 31, 1929, which is the Order now in effect and which reads:

"The Governor of the Panama Canal is hereby empowered to grant pardons, paroles, and reprieves for offenses against the laws, orders, and regulations of the Canal Zone, and to commute sentences and remit fines and forfeitures: Provided, however, That no pardon, parole, reprieve, or commutation of sentence shall be granted by the Governor, and no fine or forfeiture shall be remitted, until an application therefor shall have been submitted to a pardon board of five members, to be designated by the Governor, and approved in writing by the majority thereof.”

These Executive Orders limit the pardoning power of the Governor of the Panama Canal to offenses against the laws, orders, and regulations of the Canal Zone. As Congress has not attempted to authorize the Governor to pardon offenses against the United States and the President has not attempted to delegate the power vested in him under Article II, Section 2, Clause I of the Constitution of the United States to grant pardons for offenses against the United States, it is unnecessary to consider the validity of any such delegation of authority to the Governor by Congress or by the President.

It is my opinion, therefore, that the Governor of the Panama Canal has no authority to pardon Rafael Garcia

« PreviousContinue »