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Hawaii Organic Act: Congressional debates on Hawaii Organic Act

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1931

Mr. CULLOM.   Certainly.

Mr. PLATT of Connecticut. But we ought at least to scrutinize it with a good 
deal of care. I know that is the intention of the committee, and therefore he will 
pardon me for referring to the matter to which I am about to refer.

Mr. CULLOM. I hope the (Senator will realize from what has happened this 
afternoon that I am anxious for a free, full, and critical investigation and discussion 
of the bill, so as to make it as nearly right as we can before it goes out of this 
Chamber.

Mr. PLATT of Connecticut. I do appreciate that. But section 88 proposes to establish 
a court there which I do not think we have any power under the Constitution of the 
United States to establish in that Territory. We have been providing governments for 
Territories now for a hundred years, nearly. It is nearly a hundred years since we 
acquired Louisiana, and at an earlier period than that we provided a government for 
the Northwest Territory. But we have never yet established a constitutional court in a 
Territory. I have always supposed that the reason why we did not was because we 
could not under the Constitution.
The Constitution says:
The judicial power of the United States shall be vested in one Supreme Court, 
and in such inferior courts as the Congress may from time to time ordain and 
establish. The judges, both of the Supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive for their services a 
compensation which shall not be diminished during their continuance in office.
It has been the universal acceptation of judges and lawyers and legislators that that 
section of the Constitution referred to courts to be established in the States only. 
Consequently we have one Supreme Court and we have our circuit courts, more 
recently our circuit courts of appeal, and our district courts in the States. We have 
never established a constitutional court in a Territory. The courts which we have 
established in the Territories have been established under the provision of the 
Constitution which pro-vides that-
Congress shall have power to * * * make all all needful rules and regulations 
respecting the territory or other property belonging to the United States.
Those courts have repeatedly been adjudicated to be not constitutional courts, but 
legislative courts. It has been the practice in constituting the legislative courts of the 
Territories to give them jurisdiction over cases arising under the laws of the United 
States and the Constitution of the United States. Admiralty jurisdiction has been 
conferred upon them, and a variety of jurisdictions, as relating to the laws of the 
United States. But I am very firm in my opinion that we can not do that which it is 
proposed to do in section 88. That proposes to establish a court in the Territory of 
Hawaii in all respects like the district and circuit courts of the United States in the 
States, and consequently says nothing about the tenure of the judge, as by the 
Constitution a judge of such a court has to be appointed during good behavior and with life tenure.
I will read the section to show how completely it is such a court as is contemplated 
by the Constitution, and called there an inferior court, and how completely it 
resembles and is like the district and circuit courts of the United States. Now listen. 
There is no escape from it. If it be said that the giving a term of office during good 
behavior takes it out of the category of constitutional courts, there is other language 
here which makes it impossible to take it out of that category.
That a judicial district of the United States is established for the Territory
Of Ha wail-The judicial districts of the United States are the judicial dis-
tricts referred to or authorized by article 8.   They are judicial
districts within the States, not within the Territories.
That a judicial district of the United States is established for the Territory
of Hawaii, to be called the district of Hawaii, which shall be included in the
ninth judicial circuit of the United States.
It never has been supposed before that you could extend a judicial circuit under 
the Constitution beyond the limits of the States
The President of the United States, by and with the advice and consent o the 
Senate, shall appoint a district judge, a district attorney, and a marshal of the 
United States for the said district. The district court for the said district shall have, 
in addition to the ordinary jurisdiction of district courts o the United States, 
jurisdiction of all cases cognizable in a circuit court, am shall proceed therein in 
the same manner as a circuit court
So it gives it the power both of the district and circuit courts of the United States 
as organized in the States.
The laws of the United States relating to appeals, writs of error, removal of 
causes, and other matters and proceedings as between the courts of the United 
States and the courts of the several States shall govern in such matters and 
proceedings as between the courts of the United States and the courts of the 
Territory of Hawaii. Regular terms of said court shall be held etc.

Mr. President, I do not wish to go into a further argument o this matter at the 
present time. I desire to point it out simply for the purpose of the consideration of 
the committee.

Mr. FORAKER. Mr. President, I have listened with very great interest and 
appreciation to what the Senator from Connecticut has said as to section 88.
It is true, as the Senator has stated,that we have never yet in legislating for a
Territory seen fit to create a constitutional court in a Territory.

Mr. SPOONER (in his seat).   We can not do it.

Mr. FORAKER.   I do not understand that there is any prohibition in the 
Constitution against our doing it.   The practice has been that we have not.   If the 
Senator will allow mo to conclude he sentence I was about to utter, then he can 
interrupt me if ho o desires.

Mr. SPOONER.   I did not interrupt the Senator by rising, did I?

Mr. FORAKER.   No; but the Senator did by a very proper in-
jection.   If it were true, as stated by him, that we have no power
o do it, that would be the end of this debate.   But where does
he Senator get authority to say that we have no power in legislat-
ing for a Territory to create a United States district court proper
there if we see fit to do so?

Mr. SPOONER. Does the Senator mean by that question the mrase as used in the 
Constitution, " in which shall be vested the judicial power of the United States?"

Mr. FORAKER.   I do.

Mr. SPOONER. I get it from several decisions of the Supreme Court of the United 
States.

Mr. FORAKER. I have read the decisions of the Supreme Court of the United 
States, and I do not get any such conclusion therefrom. On the contrary, the decisions 
of the Supreme Court of the United States are simply to this effect, as stated by the 
Senator from Connecticut, that we have never yet seen fit to create a constitutional 
court, but only legislative courts, for the Territories. But the Supreme Court has 
nowhere said, so far as I am advised, that it would not be competent for Congress to 
do so if Congress should see fit.

Mr. SPOONER.   Will the Senator allow me?

Mr. FORAKER.   Certainly.

Mr. SPOONER. I will read for just a moment from the decision of the Supreme 
Court of the United States in the American Insurance Company vs. Canter (1 Peters, 
511).

Mr. FORAKER.   Yes, sir; I have it before me.

Mr. SPOONER.   The Supreme Court said: These are not constitutional courts--

Mr. FORAKER.   Certainly not.

Mr. SPOONER (reading)-
These are not constitutional courts in which the judicial power conferred by the 
Constitution on the General Government can be vested. They are created by 
virtue of the general right of sovereignty which exists in the Government; or in 
virtue of that clause which enables Congress to make all needful rules and 
regulations respecting the Territories. The jurisdiction with which they are 
invested is not a part of the judicial power denned in this article of the 
Constitution.

Mr. FORAKER. Mr. President, that is true; but what the Senator reads does not meet 
the question at all. What the Senator reads has reference to the courts that were in 
fact created, but the Supreme Court does not say in the case of Canter that Congress 
might not have created a constitutional court in the Territory. If the Senator will 
bear with me a minute, he will see the point plainly. What Congress did there was 
to create a court with a limited tenure of office for the judge, and the court was also given 
a jurisdiction that did not belong to the interpretation of the Constitution of the United 
States and the laws of the United States, but local legislation as well. The Supreme 
Court said these are not constitutional courts, because created as they are they are in-
capable of receiving the jurisdiction that belongs to a constitutional court of the 
United States. Then they comment on the fact that they were not intended to be 
constitutional courts, because they were given a limited tenure instead of a tenure 
during good behavior, and that was conclusive in that case.
The courts as established in Florida, which were under consideration in the Canter 
case, have been continued with respect to our Territories, as the Senator from 
Connecticut said. Their tenure has always been restricted. It has never been a life 
tenure. The Supreme Court has simply said from that fact it is to be inferred that it 
was not the intention of Congress to create a constitutional court, but only a 
legislative court.
I invite the Senator's attention to the case which is the lending case on the subject, 
McAllister vs. United States, reported in 141 U. S., at page 174 et seq. All the decisions 
of the Supreme Court of the United States made prior to the giving of this decision are 
here reviewed, and the point I make with respect to them is recognized throughout in 
all that the court says.
They find that the courts in Utah and the courts in various Territories were not 
constitutional courts, because Cong IBS had not made them so, had not sought to make 
them so, and cited as a fact supporting that proposition that they had limited the 
tenure, which it was incompetent for Congress to do if it was a constitutional court, 
and they cited the further fact that in all of these Territorial courts the courts were 
given not only the jurisdiction of the United States district and circuit courts, but the 
jurisdiction of State courts as well.
Now, there is no objection to Congress giving a life tenure and creating a court 
with district and circuit jurisdiction alone.

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