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Mr. ROSS. I wish to ask the Senator another question, if he will yield for 
that purpose.

Mr. FORAKER.   Yes, certainly; with pleasure.

Mr. ROSS. Does the court in a Territory get its jurisdiction from the act of 
Congress or does it get it from the Constitution?

Mr. FORAKER.   It gets it from the act of Congress.

Mr. ROSS. Then, is it not a legislative court instead of a con-stitutional 

Mr. FORAKER.   It is a legislative court.

Mr. ROSS. It seems to me the Senator is confounding the matter, because the 
tenure is for life and the judge is given the same jurisdiction by the act of 
Congress that he gets under the Consti-tution. It is therefore not a constitutional 
court, but it is merely a legislative court, and gets its whole jurisdiction and 
term of office from the act of Congress.

Mr. FORAKER. The Senator did not follow me closely in the remarks I just 
made or he would not ask that question. I stated at the beginning that the 
decisions which have been cited, in which it has been held that the court 
under consideration was a Territorial court, were each and all cases where the 
Congress had evidenced by the character of the legislation creating the court 
that it did not intend a constitutional court, but only a legislative court, the 
court has pointed out that that intention is derived from the fact, first in the 
Canter case, and in all the other cases, I believe, without exception, that there 
was a limited instead of a life tenure. In other cases they pointed out the 
jurisdiction was different, and they have said, not being a constitutional court, 
the court was incapable of taking the jurisdiction conferred by the 
I do not know any reason why, therefore, where we extend the Constitution 
to a Territory, we may not there create a district court. We have here 
extended the Constitution of the United States, if we pass this bill, to Hawaii. I 
do not know of any reason why there should not be a district court established 
there, if we see fit to adopt the policy of establishing such a court, which of 
course remains after the question of power has been settled.
There is much to be said in favor of making the court in Hawaii a United 
States district court, and conferring upon it all the jur-isdiction which belongs to 
district and circuit courts of the United States, because, as I was about to remark 
a moment ago, that is differently situated from any other Territory that we have 
yet leg-islated for. It has need for an admiralty jurisdiction, which does not 
belong to any interior Territory at any rate, and certainly not in the pronounced 
sense in which it belongs to that of Hawaii, and there is an abundance of work 
there for a court with that kind of jurisdiction to exercise.
What I rose to suggest was that a court that is given a clean-cut 
constitutional jurisdiction in a Territory belonging to the United States, to 
whom we have extended the Constitution, and the judges of which have been 
given a life tenure, as is the case here, ought not to be confounded with 
Territorial courts which have been under consideration in the decisions of 
the Supreme Court of the United States, which have been relied upon.
I now yield with pleasure to the Senator from Vermont.

Mr. ROSS. I was simply going to ask the Senator if he was not confounding 
the difference between the source from which the power comes in so 
characterizing the court, rather than the court itself, or the name of the court. 
The Senator called it a constitutional court.

Mr. FORAKER. Will the Senator define to me what jurisdiction a United 
States constitutional court gets from the Constitution proper?

Mr. ROSS. It gets just what is named in the Constitution, and it can not have 
any other given to it.

Mr. FORAKER. I will ask if it is not necessary to legislate with respect to 
the jurisdiction of constitutional courts just as much as it is with respect to 
Territorial courts; and if the term "constitutional court" means anything 
more than it is a court created by Congress within the contemplation of the 
Constitution, which authorizes Congress to establish courts?

Mr. ROSS. I understand a constitutional court, within the meaning of the 
decision, extends to the States only. When you go into the Territories and 
legislate, then with unlimited power you can give the same term of office to 
the judges of a court in the Territories and the same jurisdiction, or more or 
leas of it, as Congress may please.

Mr. FORAKER. I do not agree with the Senator that a United States- court 
can not be created except within the States. I do not know of any reason why 
a United States court may not be created beyond the States, to sit and have 
jurisdiction outside of the States, in the Territories of the United States, to 
which we extend the Constitution. I do not agree with the Senator that 
Congress can legislate for the. Territories outside of the States without any 
limitation whatever.
I should like to ask the Senator what he would do were a meas-ure proposed here 
prohibiting the freedom of speech or the free-dom of the press in Hawaii? Would he, 
because it is outside of the
States, vote for it in view of the fact that the first clause of the Bill of Rights 
says no law shall be passed by Congress doing any such thing?
I call the Senator's attention to that only to show that there are some positive 
prohibitions in the Constitution which rest upon us as Senators sitting under the 
Dome of the Capitol, which we can not disregard, which accompany all legislation 
that we enact, no matter for whom it may be or whether they are in the Union as 
an integral part of it or not.
I agree with the general proposition that we are unlimited in our power when 
legislating for Territories to which we have not extended the Constitution 
particularly, except only by the positive prohibitions which are laid by the 
Constitution upon every man who sits here as a legislator, no matter what his 
view upon the general subject may be. Therefore I say when we come to create 
courts, we simply say, by virtue of the authority conferred on us by the 
Constitution, there shall be a court here, and it shall have the jurisdiction we give 
it, or the jurisdiction of a United States district court proper, and we give it a 
tenure, which belongs to the judge. I do not know why it is not competent for us 
to do it. If it is competent for you to say that it is not a constitutional, but only 
a Territorial court, because it is outside of the States which constitute the Union, 
you can say that just as well with it having one jurisdiction and one tenure, as 
you can if it be given another tenure and another jurisdiction.

Mr. GALLINGER. If the Senator will permit me, it is evident that this interesting 
discussion can not be completed to-night; and, with the Senator's consent, I will 
move that the Senate proceed to the consideration of executive business.

Mr. FORAKER.   I yield.

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