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1933

going to violate it. It is idle to talk about what Congress might do. Any power 
might do many wrong things; but in view of the constitutional precedents we 
have, in view of the custom that has grown up to do justice, to give them free 
government, Congress is not going to change its policy and become a monster and 
do wrong. It can not do wrong with regard to them unless we violate the 
unwritten law, the unwritten constitution that has governed this country from 
its foundation. There is no danger of Congress violating it. If it makes a departure 
from that we shall hear from the people.

Mr. FORAKER. I am much obliged to the Senator for the question, but he 
has so prolonged it I do not know just how to answer it.

Mr. SPOONER. Will the Senator allow me to ask him a question?

Mr. FORAKER. Certainly. I want to complete my reading, however.

Mr. SPOONER.   I only want to get at the right of this thing.

Mr. FORAKER.   Certainly.

Mr. SPOONER. There are some reasons why, if we can create a constitutional 
court in Hawaii, I think it might be wise to do it. I want to ask the Senator this 
question, if he will permit me. I suppose he will admit that in creating a 
constitutional court we have nothing whatever to do with the tenure of the 
judge,

Mr. FORAKER.    No, sir.

Mr. SPOONER.   It is fixed by the Constitution?

Mr. FORAKER.   It is fixed by the Constitution.

Mr. SPOONER. And it can not be other than the constitutional tenure for 
life or good behavior?

Mr. FORAKER.   Certainly not.

Mr. SPOONER. Now, does the Senator think that court a constitutional 
court as to the tenure of the judge of which we are not restricted by the 
constitutional provision at all, but are left entirely free to make it two years or 
four years or ten years or during good behavior?

Mr. FORAKER. I beg the Senator's pardon; I did not catch the point of his 
question, if he asked me one. Do I think what?

Mr. SPOONER. Does the Senator regard that court a constitutional court as to 
the tenure of the judge of which Congress is entirely free?

Mr. FORAKER.   Yes.

Mr. SPOONER. To fix it at two years, or ten years, or during good behavior?

Mr. FORAKER. I think if Congress fixes it at anything less than a life 
tenure that is evidence that Congress did not intend to create a constitutional 
court. That is the very point I have been making. But if Congress wants to 
create a court and give the judge a life tenure it is within the power of 
Congress to do it.

Mr. SPOONER. No; but my point is this: Congress can not create a 
constitutional court without a life tenure.

Mr. FORAKER. Certainly not. That is what I have been contending.

Mr. SPOONER. Now, is any court as to which Congress may create a shorter 
than a life tenure a constitutional court?

Mr. FORAKER.   Certainly not.

Mr. SPOONER. Is not this a court in regard to which we may make the tenure 
four years or ten years, if we choose?

Mr. FORAKER. Certainly it is; undoubtedly. Mr. President, after a very 
careful consideration of this question, and that is the reason why I am 
particular about it here, we propose in the bill providing a civil government 
for Puerto Rico that there shall be a United States district court; we call it by 
that name, but the tenure is only for four years. We limited the tenure for the 
sole purpose of making it clear that we do not intend to constitute a 
constitutional court, but only a territorial court within the meaning of all these 
decisions.
Now, Mr. President, there is no ground for controversy here, because in the 
case to which I have already alluded, at page 188, the Supreme Court expressly 
say as follows:
The whole subject of the organization of Territorial courts, the tenure by 
which the judges of such courts shall hold their offices, the salary they 
receive, and the manner in which they may be removed or suspended from 
office, was left by the Constitution with Congress under its plenary power 
over the Territories of the United States.
And then, as I called attention a while ago, they say in effect,  further  on, 
that in all cases it will be regarded as an evidence that a constitutional court was 
not intended when the tenure comes under consideration unless Congress has 
seen fit to give the life tenure, indicating clearly that Congress is invested 
with plenary power and can make a tenure for life or for any number of years it 
might see fit. If Congress sees fit to give tenure for less than life, that is 
conclusive evidence that Congress does not intend to create a constitutional, but 
only a Territorial court.
But, Mr. President, the Supreme Court calls attention in all these cases to 
the fact that the jurisdiction given is such as also to show that not a 
constitutional, but only a legislative court was intended to be created. In the 
Territories they have the Federal
side and the State side or the Territorial side, the one contradistinguished from 
the other, the one having jurisdiction of all local matters, the other having the 
jurisdiction that belongs to the courts of the United States. There is not, in my 
opinion, any question but that the Congress can constitute a court in a Terri-
tory and call it what it sees fit, and give the life tenure to that judge and invest 
him with such jurisdiction as Congress may see fit to invest him with.
Mr. President, there is a controlling reason in my mind why this court 
should be different from the ordinary Territorial court and should have the 
jurisdiction, that belongs under the Constitution and the laws of the United 
States to district and circuit courts. That Territory is peculiarly situated from 
any other Territory that we have. It is away off yonder in the sea and  must 
have an admiralty jurisdiction in its most pronounced sense.
I have only another word to add, and that is, conceding that the power is 
given, that Congress could create such a court there as it may see fit, the 
question of policy remains. The Supreme Court has said it has plenary power 
over and over again, as often as it has had occasion to say it. I have had some 
misgivings about the question of policy, and I yielded to my associates in the 
committee as to this bill, but when the committee considered this question in 
regard to Puerto Rico a few days ago, they took a different view as a matter of 
policy. There is no question about the matter of power to do it.
We thought it would be better to give to that judge in Puerto Rico but a 
four years' tenure and make it clearly a Territorial and not a constitutional 
court; but if we had seen fit to give it the jurisdiction that belongs to United 
States courts, and then to give it a life tenure, I do not see any reason why we 
should not have made a United States court and judge within the meaning of the 
Constitution.

Mr. ROSS.   Will the Senator allow me a question?

Mr. FORAKER.   Certainly.

Mr. ROSS. I understand the Senator to concede that if the tenure of a judge 
has been for four years, six years, twenty years, or forty years, it would not be a 
constitutional court, but a legislative court.

Mr. FORAKER. I do not concede any such thing. That is a truism, under 
the Constitution, and there can be no argument about what the Constitution 
explicitly says.

Mr. ROSS. That is true; and it is true, is it not, because the legislature so 
fixes it?

Mr. FORAKER. No; it is true because the Constitution so fixes it.

Mr. ROSS. The Constitution so fixes it, and it becomes a legislative court. 
Now, if Congress in an act relative to a Territory fixes the term of office of 
the judge at life, it is no less fixed by Congress than it would be if it fixed it for 
two years or four years or ten years, and is it not just as much a legislative 
court within the terms of those decisions as if it had been fixed at two years or 
four years or ten years?

Mr. FORAKER. Not at all; not necessarily so, because the jurisdiction 
conferred might be such as to show it was designed to make only a Territorial 
court. There are two things to be taken into consideration, one of tenure and 
the other of jurisdiction. If the Congress confers upon the court which it 
creates jurisdiction which does not belong to a constitutional court of the United 
States, that is one evidence that it was intended within the meaning of the 
decisions to be only a legislative court: and if Congress saw fit, giving it the 
same jurisdiction as a United States court in one of the States would have, to 
limit the tenure to less than life, that would be another conclusive evidence 
that it was intended to be only a legislative court; and so the courts have held 
in every one of these cases, as I understand.

Mr. PETTUS. Could not Congress repeal the act the next day after the judge 
was appointed for life?

Mr. FORAKER.   Undoubtedly.

Mr. ROSS.   What was the question?

Mr. FORAKER. Could not Congress repeal the act after it was enacted and 
the judge had been appointed? Undoubtedly it could repeal the law.

Mr. SPOONER. Could Congress do that as to the judge of a constitutional 
court?

Mr. FORAKER. I am not speaking of what the effect would be on such a 
constitutional officer; but unquestionably Congress could repeal the law. 
Whether he has a vested right in his office is another question. He undoubtedly 
would have a vested right of some kind; I do not know to what extent.

Mr. PETTUS. The question I designed to ask was, could not the Congress 
abolish the office in a week after the judge was given a life tenure by Congress?

Mr. FORAKER. I think so. I do not think the creation of an office and the 
appointment of an official to hold it binds Congress for the life of the official 
who has been appointed and who has become the incumbent.

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