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1932

That is recognized in this case to which I have called attention. At page 180 the 
majority of the court, in discussing the proposition, say that in all of this legislation the 
significant fact is-I am trying to read the substance of it; I had better read the 
whole sentence, and that will put it in better form.

Mr. TELLER.   That is better.

Mr. FORAKER.   The court say:
The significance of these enactments, as well as of the acts of 1867 and 1869, and of 
section 1768 of the Revised Statutes, is in the fact that Congress has uniformly 
proceeded upon the theory that the judges of Territorial courts were merely 
legislative courts, and were not entitled, by virtue of their appointment and the 
Constitution of the United States, to hold their offices during good behavior, unless it 
was so declared in the respective acts providing for the organization of such courts.
In other words, they come back right to the fact that Congress did not see fit in 
legislating to establish the court to give a life tenure, but they recognized that 
Congress might have done so if Congress had seen fit, for Congress in so 
legislating is without any limitations, as I understand it.

Mr. TELLER.   Will the Senator from Ohio allow me?

Mr. FORAKER.   Certainly.

Mr. TELLER. I wish to ask the Senator if that language was not used with 
reference to the question simply whether the President could remove within the term 
for which the appointment was made-four years?

Mr. FORAKER. No, Mr. President, the language which I have read was not used 
with reference to that alone. It is true that in this case the question before the court 
was as to the power of the President to remove a district judge pf Alaska. That 
district judge had been appointed for a tenure of four years. He was removed 
without any cause except only that the President wanted to displace him and substitute 
another man. The Supreme Court say that the civil-tenure law which excepted judges 
of the United States courts did not except this judge, because Congress evidently 
intended that he should be only a legislative judge and not a constitutional judge, and 
they interpreted the civil-tenure act to have reference only to constitutional courts and 
constitutional judges. But, as I say, in disposing of it they recognized, by the 
quotation I have made from the opinion of the majority of the court, that Congress 
might have made that life tenure if Congress had seen fit to do so. In all these cases 
you will find the court is careful to point out that the reason why they are not 
constitutional judges is, as in the Canter case, that they have jurisdiction that does 
not belong to the United States courts, the constitutional courts, as well as that 
jurisdiction, and because their tenure is made for years instead of for life.

Mr. PLATT of Connecticut.   Mr. President--

The PRESIDENT pro tempore. Does the Senator from Ohio yield to the Senator 
from Connecticut?

Mr. FORAKER.   Certainly.

Mr. PLATT of Connecticut. The Senator has evidently over-looked a portion of 
this opinion of the majority of the court. On page 184, after citing all the former 
decisions, Judge Harlan says:
These cases close all discussion here as to whether Territorial courts are of the 
class denned in the third article of the Constitution. It must be regarded as settled 
that courts in the Territories, created under the plenary municipal authority that 
Congress possesses over the Territories of the United States, are not courts of the 
United States created tinder the authority conferred by that article.

Mr. FORAKER. Certainly. If the Senator will allow me, that is not at all 
inconsistent with what I am contending.

Mr. PLATT of Connecticut.   I think it is.

Mr. FORAKER. They are speaking of Territorial courts as they have been by 
Congress created. They are not speaking about the power of Congress to create 
something different, but they say in every instance, reviewing every one of them, the 
Congress has not seen fit to create a constitutional court, but only a Territorial court.

Mr. TELLER.   Will the Senator allow me?

Mr. FORAKER.   Yes, sir.

Mr. TELLER. I wish to read what Judge Nelson says in the case of Benner vs. 
Porter (9 Howard). He will find it in the McAllister case, page 181.

Mr. FORAKER.   Certainly.

Mr. TELLER. After citing the judicial clause of the Constitution, Article III, section 
1, the court said:
Congress must not only ordain and establish inferior courts within a State, and 
prescribe their jurisdiction, but the judges appointed to administer them must 
possess the constitutional tenure of office before they can become in-rested with 
any portion of the judicial power of the Union. There is no exception to this rule in 
the Constitution. The Territorial courts, therefore, were not courts in which the 
judicial power conferred by the Constitution on the Federal Government could be 
deposited. They were incapable of receiving, it, as the tenure of the incumbents was 
but for four years.
Then the court cites the case of Marshall.

Mr. FORAKER. Certainly, the court give the reason why they are incapable of 
receiving them, because they are not constitutional courts. Congress did not design 
to make them such, and Congress evidenced that fact when it denied to them a life 
tenure and limited them to a term of years.

Mr. TELLER. Then the court quotes from Marshall, who declared that they 
were not, I think, very emphatically.

Mr. FORAKER. In the Canter case the court decided and gave the reason 
why they were not constitutional courts, assigning as the reason that they were 
given a different jurisdiction from that which belonged to United States 
courts and because the tenure was restricted to a number of years.

Mr. TELLER. If the Senator from Ohio will allow me, I agree the court gave 
the reason, but it did not by any means give the reason the Senator is giving.

Mr. FORAKER.   I so understand it

Mr. TELLER. The court said they were not appointed under that 
constitutional power to appoint courts, but they were appointed under another 
power.

Mr. FORAKER. What the court said was that these were courts created by 
Congress in the exercise of the power conferred upon Congress to legislate for 
the Territories, and that Congress in the exercise of that power had seen fit 
here to set up a court with a different jurisdiction from that which belonged to 
United States courts, and with a tenure limited to a number of years instead of a 
life tenure, and that was a conclusive fact to show that Congress did not design 
to make them constitutional courts.

Mr. STEWART.   Mr. President--

The PRESIDENT pro tempore. Does the Senator from Ohio yield to the 
Senator from Nevada?

Mr. FORAKER.   Certainly.

Mr. STEWART. I thought the Senator was through. I just wanted to say a 
word upon this subject. It seems to me to be too plain to have much 
controversy about it.
The constitutional courts provided have a limited jurisdiction; the State 
courts exercise large jurisdiction. It is a peculiar jurisdiction that is conferred 
upon the constitutional courts. The constitutional court is a peculiar court. It is a 
special court. Congress does not derive the power to legislate for the 
Territories under that provision at all. It derives the power, according to 
some of the authorities, in some places entirely from the power to dispose of the 
public property of a Territory, but most of the works on constitutional law 
say that the power to legislate for the Territories would exist independent of 
any provision in the Constitution. It is a sovereign power that necessarily 
belongs to the United States, and when Congress legislate for the Territories they 
do not create a special court. They create a court with general jurisdiction, 
covering all the jurisdiction that the States exercise and that the Federal 
Government exercises.

Mr. TELLER.   That is it exactly.

Mr. STEWART. It is one complete jurisdiction. It is a different system 
altogether; and it may be just such a system as Congress may ordain and 
appoint, But when you come to constitutional courts, they are very different. 
They are limited, and by the Constitution a limited jurisdiction is prescribed, 
whereas a Territorial court may be endowed by Congress with all the juris-
diction, as it usually is, that the courts of the United States have in the States 
and that the State courts have.

It is all combined in one. and it results from the power to govern the Territories, 
whether that power be derived from the Constitution or from the very nature of 
the sovereignty. Most all the authorities refer it to the very nature of 
sovereignty possessed by the Government.
When you say you have got no constitution for the Territories I deny that. 
We have got a constitution for the Territories, one that has grown up by 
custom, and it ought to be as binding upon us as the English constitution is 
upon England. Ever since the formation of the Constitution we have legislated in 
one direction. We have given the Territories local self-government; we have 
given them all the freedom that we enjoy. Now, while you might have power to 
do almost anything to injure the Territories, you might have power to do 
wrong as any monarch with unlimited powers would have, we have a 
Constitution by precedent for a hundred years that tells us that we must be 
governed by the general principles of liberty, justice, and a republican form of 
government. We have done it in all instances, and that now is binding upon 
us without regard to the abstract power that Congress may have.
Congress has power to do wrong. So has any unlimited monarch. So far as the 
Territories are concerned we have that power, and Congress might exercise it if 
we were not governed by an unwritten constitution that has grown up, that we 
must give the Territories all the rights and privileges that we enjoy; that they 
must have republican government; that they must have local self-government; 
that they must be governed according to the laws of the most enlightened, 
being republican, as we are. That we have to do unless we violate every principle 
that governs us at all anywhere.

But there is no constitution for the Territories except that which has grown up 
by custom. That has become as binding upon us and as binding upon the 
consciences of Congress as the Constitution of the United States. We dare not 
violate it, and we are not

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