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                             2133
of Thirty Years in the United States Senate as to the origin of the doctrine that 
the Constitution extends to newly acquired territory ex proprio vigore. I need not, 
I am sure, in making answer to the Senator from Missouri, go beyond that one 
authority. Surely it is sufficient, especially after the encomium he has spoken upon 
Mr. Benton, for me to say that according to the authority of Mr. Benton the 
doctrine that the Constitution extended ex proprio vigore to newly acquired 
territory was not an ancient doctrine, but a newly invented doctrine in 1850 to 
meet the exigencies of the slave interest at that time.
They wanted the Constitution extended to the Territories in order that 
slavery might be there recognized according to the Constitution and be 
permitted under it; and when, in the emergency of that debate, Mr. Calhoun 
brought forward that doctrine-nobody opposed it any more vigorously than did Mr. 
Benton himself. Mr. Benton tells us that this was the beginning of that doc-trine, 
that such was its purpose, and that it was but a vagary of a diseased mind. This 
authority is sufficient, and I shall treat it as conclusive until Mr. Benton is 
answered and overthrown. Until the time of which Mr. Benton speaks the 
Constitution had never been extended in a single instance by Congressional 
action beyond the limitations of the Union itself. The Territory in every instance 
had been governed directly by such laws as Congress might see fit to enact, or 
authorize a local legislature to enact.
In several instances, instead of extending the Constitution, Congress 
compromised by extending the Ordinance of 1787, extending it without any 
limitation at all, in all its provisions, as to the territory that was designed to 
come in as free States, and ex-tending it as to the territory in the South that it 
was expected would come in as slave States, excluding the eighth article, which 
prohibited slavery. The Ordinance of 1787 and not the Constitution was thus 
extended to Mississippi and Alabama and became a part of the Territorial 
organic law of all that territory.
So, Mr. President, I say there is not anything new either in the denunciation 
that is indulged in or in the proposition upon which we rely for the legislation 
that is now being proposed. There is abundant precedent for both. Having said 
that much, I want now to turn to the bill we have under consideration, and 
speak very briefly as to the proposition embodied therein, to which objection has 
been made, providing for a Federal court.
We had some debate on this subject a few days ago. There were some 
inaccuracies of statement in that debate. They are to be excused by reason of the 
fact that the debate was unexpectedly precipitated and no one had had an 
opportunity, except only those Senators who perhaps were contemplating bringing 
it up, to make any investigation. I recall one inaccuracy of my own. It was 
asserted in the debate by some, one that we had never before in creating a 
Territorial government undertaken to establish a court with United States 
jurisdiction, except only with a limited tenure and with a mixed jurisdiction.
I assented to that. I did it thoughtlessly, for when I bad time to think of it I 
recalled what I should have recollected at the time, for I was perfectly familiar 
with it, that when we came to establish a Territorial government for Louisiana 
we provided not only a complete system of Territorial courts, with limited 
tenures and with such jurisdiction as we saw fit to confer, but in addition 
thereto we also provided that Louisiana should be a judicial district and should 
have a district court, the judge of which should be appointed by the President, 
and that he should have the same powers, the same jurisdiction precisely, and 
the same tenure of office as belonged to the court of the Kentucky district.
The court for the Kentucky district was provided for by the act of 1789, the 
judiciary act. No courts were created by that act except only what are called 
constitutional courts. When, there-fore, in legislating for the district of Orleans, 
as it was called, the Congress saw fit to provide that there should be a district 
court, a district judge with life tenure, and with the same jurisdiction as the 
Kentucky district, they were making a constitutional court in the sense that they 
were at least making precisely the same kind of a court in point of jurisdiction 
and tenure as they had a right to make in the exercise of their power to create a 
constitutional court under the judicial article of the Constitution.
In pursuance of that act a judge was appointed, the court was put into 
operation, and pretty soon a case arose that found its way to the Supreme Court of 
the United States-the case of Sere and Laralde vs. Pitot and others, reported in 6 
Cranch, page 332. The decision was announced by Chief Justice Marshall. The 
question in the case was as to the jurisdiction of that court, as to whether or not 
the parties who had brought suit had the right to invoke its jurisdiction. It was an 
action by the assignee of a chose in action.' Chief Justice Marshall commenced 
by saying:
This suit was brought in the court of the United States for the Orleans 
Territory.
Then he proceeds to dispose of the case.   That is all I care to read from that 
decision.   I read enough, however, to show, in view of what I have already stated, 
that Congress not only made a


United States court with a life tenure and constitutional jurisdiction, but that that 
court was recognized by Chief Justice Marshall as a United States court in 
contradistinction to the term "Territorial" or "legislative" court.
In the case of McAllister (141 U. S. Reports), referred to in debate a few days 
ago-cited, I believe, by the Senator from Connecticut [Mr. PLATT] - the question 
was whether or not the court in Alaska, which had been given United States 
jurisdiction by Congress, was a United States court within the meaning of the 
tenure of office act, and the court there, after a very lengthy review of all the 
decisions, held that it was not a United States court; that only those courts 
could properly be said to be United States courts which were constitutional 
courts in the sense in which that term is ordinarily employed. That decision was 
undoubtedly correct
Now, Mr. President, the point I wish to make with respect to this is that, 
taking that definition of a United States court, and taking the statement of Chief 
Justice Marshall in the case to which I have referred, and from which I have 
quoted, it certainly does appear that we had a United States court, a 
constitutional court, if you please, in the Territory of Orleans, outside the States, 
and therefore that we have approved precedent for the creation of such a court 
in a Territory and consequently not within a State of the Union.
     But it does not matter in such a case whether yon call it a "constitutional 
court" or a "Territorial court." It is a court created by Congress, as all courts 
must be; and if it be given all the constitutional jurisdiction and the judge be given 
the life tenure, I do not know why we may not assume that Congress in creating the 
court proceeded under the judicial article of the Constitution rather than under 
the provision authorizing it to legislate for the Territories. But however that may 
be, it will remain that Congress has plenary power to create in a Territory such 
courts as it may see fit, and confer such jurisdiction as it sees fit, and give the 
judge such tenure as it may see fit. This power is not exceeded by what is here 
proposed. So that if there is any valid objection to section 88 of the bill it must 
be solely on the ground of policy.
I think the Senator from Alabama [Mr. MORGAN] made it clear, in his most 
admirable presentation of this matter this afternoon, that we ought to have in 
the Hawaiian Islands a Federal court, with a life tenure, and all the jurisdiction 
that can be given to it tinder the Constitution; for it is, as has been said, a 
court that must have, in the most pronounced sense, an important admiralty 
jurisdiction and a very extended jurisdiction of almost every character to 
make it proper for us to distinguish it from a purely local court.
There are a great many other things which I should be glad to say in regard to 
this matter before taking my seat, but the whole day has been spent in this 
debate, it is now very late, and I do not wish to detain the Senate.
     Mr. CULLOM. I rise to move that the Senate adjourn, but before making that 
motion, I desire to say to the Senators who are here that I am very anxious to get 
along with this bill as rapidly as possible, because the condition of affairs in those 
islands especially requires that some legislation be had, so that they can protect 
themselves from plagues and diseases and be able to live at all. With this remark, 
and with the understanding that we are to meet to-morrow, I move that the 
Senate adjourn.
Mr. MORGAN. I ask the Senator to withdraw the motion for a moment.
    Mr. CULLOM.   I withdraw it for a moment in order to suggest that we agree to 
vote on the bill to-morrow at 4 o'clock. 
    Mr. MORGAN.   On the bill and amendments? 
    Mr. CULLOM.   Yes.   I hope the Senate will agree to that. 
    The PRESIDENT pro tempore.   The Senator from Illinois asks unanimous consent 
that the Hawaiian bill and the pending amendments may be voted upon to-morrow at 4 
o'clock.   Is there objection?
    Mr. TELLER.   I shall have to object, Mr. President. 
    Mr. CULLOM.   Then I move that the Senate adjourn. 
    Mr. BATE.   I move that the Senate adjourn until Monday. 
    Mr. CULLOM.   I hope that will not be done. 
    Mr. BATE.   I think it was the expectation of many Senators that an 
adjournment over would be had.
Mr. CULLOM. I am sure it was not expected by the Senate. I do not think 
anyone has been justified in entertaining any such expectation.
Mr. BATE. I do not wish to make the motion if a session is desired to-
morrow.
    Mr. CULLOM,   I very much desire a session for the consideration of the Hawaiian 
bill to-morrow. 
    Mr. BATE.   Very well; I withdraw my motion. 
    Mr. CULLOM.   I move that the Senate adjourn. The motion was agreed to; and 
(at 5 o'clock and 20 minutes p. m.) the Senate adjourned until to-morrow, 
Saturday. February 24,1900, at 12 o'clock m.

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