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Hawaii Organic Act: Congressional debates on Hawaii Organic Act

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March 1, 1900
Senate
T. 35 (3)
p. 2438-2449 
TERRITORY OF HAWAII.
Mr. CULLOM. I ask the Senate to resume the consideration of 
the Hawaiian bill.
The Senate, as in Committee of the Whole, resumed the consid-
eration of the bill (S. 222) to provide a government for the Territory 
of Hawaii.
Mr. CLARK of Wyoming. I understand an amendment is 
pending offered by the Senator from Colorado [Mr. TELLER].
The PRESIDING OFFICER (Mr. HANSBROUGH in the chair). The 
pending amendment is the one offered by the Senator from 
Colorado.
Mr. CULLOM.   I think the Senator from Alabama [Mr. MOR-
GAN] has the floor if he desires to occupy it.
The PRESIDING OFFICER. The amendment proposed by the 
Senator from Colorado will be stated.
The SECRETARY. It is proposed to strike out all of section 88 down 
to and including the word "court" in line 5, on page 44, and to insert 
in lieu thereof the .following:
That there shall be established in said Territory a district court, to consist of 
one judge, who shall reside therein and bo called the district judge. The 
President of the United States, by and with the advice and consent of the 
Senate, shall appoint a district judge, a district attorney, and a marshal of the 
United States for the said district; and said judge, attorney, and marshal shall 
hold office for four years, unless sooner removed by the President. Said court 
shall have, in addition to the ordinary jurisdiction of district courts of the 
United States, jurisdiction of all cases cognizable in a circuit court of the 
United States, and shall proceed therein in the same manner as a circuit 
court. Writs of error and appeals from said district court shall be had and 
allowed to the circuit court of appeals in the Ninth judicial circuit, in the 
same manner as writs of error and appeals are allowed from circuit courts to 
circuit courts of appeals as provided by law.
Mr. MORGAN. Has the amendment which has just been read 
been printed?
Mr. TELLER.   Mr. President--
The PRESIDING OFFICER. Does the Senator from Alabama 
yield to the Senator from Colorado?
Mr. MORGAN.   Certainly.
Mr. TELLER. I think the extension of the laws over Hawaii 
will extend the jury law; but as some Senators have doubt about 
it, I desire to add at the close of my amendment:
And the laws of the United States relating to juries and jury trials shall be 
applicable to said district court.
That is the court we are discussing.
Mr. CULLOM.   With the United States judge.
Mr. TELLER.   The United States judge.
Mr. PLATT of Connecticut.   It is called a district court.
Mr. TELLER.   It is called a district court.
The PRESIDING OFFICER. The modification proposed by 
the Senator from Colorado will be stated.
The SECRETARY. It is proposed to modify the amendment by 
adding at the end thereof the following:
And the laws of the United States relating to juries and jury trials shall be 
applicable to said district court.
The PRESIDING OFFICER. The amendment will be modified as 
indicated by the Senator from Colorado.
Mr. MORGAN. I do not find a printed copy of the amendment of 
the Senator from Colorado. I should like to see it before I proceed 
with my remarks.
Mr. CULLOM.   It has been printed, I think.
Mr. MORGAN. Mr. President, in the effort here to cut down the 
term of office-for that is the only question that is in the matter, I 
believe-possibly the salary of the judge who is to execute the 
laws of the United States in Hawaii, I think the Senator from 
Colorado has dug a pit on the constitutional question and has 
fallen into it. I understand that it is the purpose of the amendment 
of the Senator from Colorado to give this district court in the 
island of Hawaii all the powers of the circuit court and of the 
district court of the United States. That would include all civil 
and all criminal jurisdiction of every kind.
The bill does not provide, however, that the judge of this district 
court shall have the powers and privileges that belong to the judges 
of the district courts of the United States. They are not properly 
jurisdictional, conferred upon the court as a court, but they are 
conferred upon the judge who oftentimes exercises them at 
chambers, in vacation, and at various places.
The part which relates to the powers of the district judge is not 
embraced in this act; it is only the court. A judge construing this 
statute would be obliged to say, "I do not find any authority here to 
exercise any of the powers that are conferred by the statutes of the 
United States upon a judge sitting in chambers or a judge who 
grants interlocutory orders of any find; I find none of

those powers." Obviously they can not be conferred upon this 
judge when he occupies a position that has been denominated 
here as a judge over a legislative court. For instance, that judge 
could not sit in the district court of California. If by any chance at 
all any district court of California, Oregon, or elsewhere should not 
have a presiding officer and it was necessary under the rules of 
law, which are so plain about it, to have a judge assigned to the 
district to hold the court, this judge could not do it. He is not a 
judge of a district court of the United States so far as the 
amendment of the Senator is concerned. He is the legislative 
judge of a court created for the Territory and holding functions 
not under the Constitution of the United States strictly, but holding 
such functions as the Congress of the United States has bestowed 
upon him. So he could not go and occupy a seat on the bench of 
California like a district judge of the United States in Oregon 
could do.
More than that, it is a legislative court, as constituted by this 
act of Congress, in which a circuit judge or a district judge of 
the United States could not preside. If that judge in Hawaii was 
dead, or if his office was vacated in any way, a circuit judge or a 
district judge of the United States could not preside in that court. In 
other words, you can not make the functions and powers of the two 
courts identical unless yon make this a Federal court, deriving its 
authority from the Constitution of the United States, as the district 
and circuit judges derive them.
I do not deny that this judge or this court may be empowered 
by this act of Congress to exercise the functions and jurisdiction 
that belong to the circuit and district courts of the United States. I 
do not deny that, but I do deny that when he does that it is in any 
sense a court with the plenary, full powers of a Federal court 
organized under the Constitution of the United States, and I have 
just pointed out some reasons which obviously show that that 
result can not take place.
Now, Mr. President, to my mind it is very doubtful whether the 
Congress of the United States can confer upon a judge of a district 
court in Hawaii created by an act of Congress, which is not a 
district court of the United States, all of the powers that belong 
under the Constitution to a district court or a circuit court of the 
United States. I am quite sure that that could not be done if the 
tenure of office is changed.
Whenever this judge is appointed under this act, of course he is 
removable at the will of the President. The other judges hold their 
offices during good behavior and are liable only to impeachment, 
and by impeachment to be removed from office. It is the only 
legal way of taking a judge from his office. So the want of legal 
identity is very plain between the court that is sought to be created 
by this amendment and the courts created by the statutes of the 
United States as inferior tribunals under the Constitution of the 
country.
I believe that whenever the question is made, it will be held that 
this court, created by this statute as a legislative court, has not 
and can not exercise all of the necessary powers of a district or circuit 
court of the United States unless there is conferred upon that court 
by a special statute a sweeping provision that it shall have the 
jurisdiction of a circuit court out and out.
I have pointed out that conferring jurisdiction upon the court 
does not confer the powers upon the judge which the statutes of 
the United States confer upon a judge of a district court or a circuit 
court. So we are creating there an abnormal tribunal for the 
purpose only of gratifying a particular idea, which is that the 
terms of office of the judges of the district courts and circuit courts of 
the United States are too long. They are for life.
Mr. BACON. The Senator has the statute before him. Will he 
kindly read the clause which relates to the jurisdiction conferred 
upon the circuit or district judge, so as to see whether the 
discretion is so broad? 1 only ask him in case he should have the 
statute before him.
Mr. MORGAN.   I have it not before me.
Mr. BACON. I saw the book open and I thought the Senator 
had it. I saw that the Senator had the Statutes at Large before 
him and I thought he had that statute. I withdraw the request.
Mr. MORGAN. I was referring in the course of my remarks to 
the amendment proposed by the Senator from Colorado.
Mr. BACON. I understood that, but the Senator said that that 
amendment fell short from the fact that it did not confer certain 
powers upon the judge relating to certain acts in chambers. I 
simply desired, if he had the statute as to United States judges, 
that that be read in order that we might see how far it did fall 
short in that particular.
Mr. MORGAN. I think the Senator must be aware that there are 
quite a number of powers in the statutes of the United States that 
the judges of the circuit and district courts may exercise; that 
they have authority to make interlocutory orders and the like of 
that. In combining the power of a local court, as was done in the 
cases of the other Territories, and the power of a Federal court, 
we create a new tribunal that is scarcely akin to a circuit or 
district court of the United States, although it may have the same 
general jurisdiction, for the judges of these different

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