Hawaii Organic Act: Congressional debates on Hawaii Organic Act
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purpose of preventing the Crown from having the power to unseat members of
Parliament, so as to give to the House of Commons the power to determine its
own membership. When we arrived at the proposition here to set up an
independent government, those provisions were in almost all of the old
continental constitutions, or, as we called them, charters; and they were
incorporated in the Constitution of the United States. I have no disposition to
change the provision that each House of the Congress of the United States shall be
the sole and exclusive judge of the elections, returns, and qualifications of its
own membership; but at the same time, when we come to the subordinate
tribunals in this great imperial affair we have got here, republics united into a
confederation, I think it is a wise thing to have the provision that is inserted in
the fifteenth section of this bill. If it goes out, I do not know that it would ever
make any difference in Hawaii or that it would in Alabama or in any other
State of the Union, but I believe the principle of it is correct.
Mr. SPOONER. Mr. President, I move to strike out the fifteenth section of
the bill and to insert in lieu of it:
Each house shall be the judge of the elections, returns, and qualifications of
its own members.
I have listened to the statement of the Senator from Alabama [Mr. MORGAN],
but I can not persuade myself that this departure from our theory in this instance,
or in any other, as to the government of a Territory is a wise one. Our theory
has been that the various departments of the Government should be independ-
ent of each other-the executive, the judicial, and the legislative- each, of
course, being supreme within its own sphere. I am too old-fashioned to like the
proposition that the courts shall become involved in any way in the constitution
of the legislative bodies. This is a very small senate provided for here, a senate
of thirteen, if I recollect.
Mr. MORGAN. Fifteen.
Mr. SPOONER. Fifteen. Under the provisions of this bill the chief justice and
the two associate justices who constitute the supreme court are not to be
appointed by the President of the United States. They are to be chosen over there;
and they are impeach-able. They are not to be removed by the President of the
United States, but they are subject to impeachment. They are subject to
impeachment before the senate. The senate is the impeaching body or tribunal.
The house of representatives, of course, presents the articles of impeachment.
I do not myself take kindly to the notion that the judges of the supreme court,
who may be tried, one or more of them, should be given power to decide who
should be or who should not be. in a contest, members of the senate. Under this it
might happen, perhaps it is not probable, but it might happen, that the leading
members of the senate at least would owe their seats in that body to a decision
of the supreme court. The supreme court are not only to pass upon the validity of
the election, but they are also to be the sole judge as to who has been elected.
I believe it is a bad provision. It is utterly out of harmony with our theory. It
does not maintain the independence absolutely of the three departments of the
government, and no reason has been given, at least none that I have heard,
which ought, I think, to commend it to the judgment of the Senate. If that is an
intelligent people, as the Senator says it is, if they have not only capacity for
self-government, but for a fine government, I can conceive of no reason why
each house should not be, as the houses here all are, from the Congress down*
the judges of the election, returns, and qualifications of their own members. It
seems to me to be rather a vicious departure from our theory that the judges
who are to be tried by a senate should have had a voice in seating the members
of that body. I am willing to take the judgment of the Senate upon it.
The PRESIDENT pro tempore. The Secretary will state the amendment
proposed by the Senator from Wisconsin.
The SECRETARY. It is proposed, on page 9, line 17, to strike out section 15, as
SUPREME COURT JUDGE OP QUALIFICATIONS OP MEMBERS. SEC. 15. That in
case any election to a seat in either house is disputed and legally contested, the
supreme court of the Territory of Hawaii shall be the solo judge of whether or
not a legal election for such seat has been held; and, if it shall find that a legal
election has been held, it shall be the sole judge of who has been elected.
And in lieu thereof to insert:
SEC. 15. Each house shall be the judge of the elections, returns, and quali-
fications of its own members.
The amendment was agreed to.
. Mr. CLARK of Wyoming. I propose, as an amendment, to strike out all of
section 56 and insert in lieu thereof:
That the legislature at its first session shall create counties for the Territory
of Hawaii and provide for the government thereof.
Mr. HALE. What section?
Mr. CLARK of Wyoming. Section 56.
I will say in explanation of the amendment that a very peculiar condition of
affairs exists within the republic of Hawaii. There is there a central
government, consisting of a president and his cabinet. There are no
municipalities. There are no county or-
ganizations. There is no place, as I understand-and if I am wrong I hope I will
be corrected-in the island of Hawaii where even a deed, or a mortgage, or a
bill of sale, or any other legal instrument can receive registry except at the city
Mr. MORGAN. I think the Senator is mistaken about that. There are
registrars in all the islands.
Mr. CLARK of Wyoming. Are there registrars in the islands who have the
authority to register and keep records?
Mr. MORGAN. 1 so understand.
Mr. CLARK of Wyoming. I do not so understand it. If I am mistaken, I
should be glad if the Senator will correct me. because that is the sole object of
this amendment, so that the people may have access to the records.
Mr. TILLMAN. Do you not provide for local punishment by local courts?
Mr. CLARK of Wyoming. There are local courts. There are circuit courts-
five of them.
Mr. TILLMAN. What about warrants?
Mr. CLARK of Wyoming. I suppose they have means to get those, but what
I refer to is the registration of deeds. There should be counties created there, so
that within each county there would be a county clerk and register of deeds.
Mr. TILLMAN. And a sheriff.
Mr. CLARK of Wyoming. Yes; whatever form of government they may
provide, so that the Senator from South Carolina, for instance, if he lived on the
island of Hawaii and wanted to register a deed, would not be compelled to put it
off four or five days till he could take a vessel and go over to the city of
Honolulu, on the island of Oahu.
The PRESIDENT pro tempore. The Senator from Wyoming proposes an
amendment, which will be stated.
The SECRETARY. On page 23, section 56, line 10, after the word "legislature," it is
proposed to strike out "may"and insert "shall at its first session;"and after the
word "counties,"to strike out "and town and city municipalities;"so that if
amended the section would read:
SEC. 56. That the legislature shall at its first session create counties within the
Territory of Hawaii and provide for the government thereof.
Mr. PL ATT of Connecticut. I was called out for a moment. Does the
Senator from Wyoming by his amendment propose to prevent the legislature
from creating municipal governments there?
Mr. CLARK of Wyoming. No; I suppose they have the right to do that by
virtue of their being a legislative power. The only object I had in vie w was that
they should at least create the county governments at their first session.
Mr. SPOONER. As it is now it is only permissive.
Mr. CLARK of Wyoming. As it is now it is only permissive. They might go
on as they are at the present time. Every State and every Territory here has
Mr. MORGAN. Mr. President, it is probably necessary to confer upon the
legislature of Hawaii the power to create counties, because that is a part of the
organic government there which would naturally come under the jurisdiction of
Congress to grant. Permission is therefore put into the proposed act to enable
them to organize counties. I confess I have never heard any complaint made of
the operation of the laws of Hawaii, as they are, about the registration of deeds
or anything of that kind; but the subject came up before the commission and was
discussed there, and my understanding is, although I may be in error about it,
for I have not the statutes here and can not refer to them, that a registration
system is provided in each county.
Mr. CLARK of Wyoming. There are no counties.
Mr. MORGAN. I mean in each island, and that it is connected with the district
court of the respective districts. I will explain in a moment what the system
Mr. SPOONER. Will the Senator from Alabama permit me to ask him a
question as he goes along?
Mr. MORGAN. Certainly.
Mr. SPOONER. Have there ever been counties there?
Mr. MORGAN. No. The entire group of islands is governed by the legislature,
of course, from Honolulu, and that has led to some jealousy, particularly on the
part of Hawaii, which is the largest island and the richest in the group. The
town of Hilo is an aspiring town, and some of these days will be an important
place. They have a very good anchorage in front, and there is a great deal around
it to give promise of great success as a town.
I have no doubt the legislature will organize counties there and they will
probably do it at the first session, but to do that they have to reorganize a great
deal of the administrative system of the islands of Hawaii. For instance, they
have no magistrates, no justices of the peace, in Hawaii. The district judge has
all the jurisdiction and functions that we give to a justice of the peace and
certain larger ones. I forget the number of districts. There are some ten or
twelve, perhaps fifteen, in the islands. Some-times two islands are put into one
district. Those courts, as I understand, are courts of record and have the power
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