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2439
courts can not exercise the functions that are committed to the 
judges of the district courts and the circuit courts of the United 
States   I do not know that as an original principle of government I 
would be in favor of a judicial establishment, even a Federal 
establishment, that would hold office by a life tenure.   There are 
some very strong objections to that.  At the same time, the whole 
Federal judicial system of the United States proper is based upon 
that idea, and associated with that is the power of appointment and 
the power of removal, except in those cases where the Constitution 
restrains the power of removal and substitutes for it the power of 
impeachment. There is not an election held under the laws of the 
United States anywhere of an officer of the United States proper.   
We can enable men in the Territorial government to elect their officers, 
but it does not follow from that that they are officers of the Gov-
ernment of the United States by any means.   It would be a queer 
idea if we should undertake to impeach a man by a proceeding in the 
House of Representatives and a trial in the Senate whom the 
President of the United States has the power to remove.   There is 
not I repeat, any feature of the elective system under the Constitution 
of the United States in respect of supplying the Federal Government 
with Federal officers.   The officers of this body or of the other House 
are not Federal officers.   They are State officers accredited to the 
Federal Government under the provisions of the Constitution of the 
United States. When the Government of the United States set up 
that system of appointments to office and fixed the tenure of the 
judges of the Supreme Court, the circuit courts, the courts of 
appeal, and all inferior jurisdictions that might be created under 
that provision of the Constitution daring good behavior, there was a 
great reason for it, and that reason exists as strongly to-day as it has 
ever been.   There is no movement in this country for the purpose 
of having the judges of the Supreme Court or of the district or cir-
cuit courts elected by the people or of having their life tenure 
abbreviated.   There is no movement to change the Constitution in 
that particular, and I think a movement of that kind would find 
very little support amongst the people of the United States. But the 
objection to the eighty-eighth section of this bill is based upon the 
ground that these men ought not to have a life tenure. Now, that 
ground is just as available and just as important against a man who 
holds a district judgeship in Alabama as it is in the Territory, for he 
belongs to the same jurisdiction and executes the same powers of the 
Federal Government.   If Hawaii should ever be admitted as a State 
into the Union, we see that all Territorial legislative offices that are 
created, called district judges or whatever name you please to give to 
them, must fall.   They will go by the board whenever the State is 
admitted into the Union, for the reason that the Constitution itself, 
operating of its own vigor, carries the Federal system in full force 
into the State when it is admitted into the Union, and the office that 
was created legislatively and for the purpose of serving a Territory 
necessarily falls on the admission of the State into the Union. I think 
it has been a great misfortune that we have undertaken heretofore to 
resort to these expedients in filling up the judicial appointments in 
the different Territories of this country.   As I observed on 
yesterday, it has a direct effect upon the independence of the 
judiciary.   A judge who is elected by the people in a State or in a 
Territory feels his responsibility directly to those people, and it is a 
very doubtful question in the States that have adopted the system of 
electing their judiciary, and for short terms, whether it is a valuable 
system or not.   Men are found of sufficient character, of sufficient 
honesty and integrity, to overcome the temptations of such a position.   
I will admit that. In my State, which has chancellors and judges of 
the supreme court elected by the people, 1 think that the system 
has worked very well.   But we have been very happy in finding a 
number of men upon the bench who are above the temptation to 
yield to popular influence or popular power.   At the same time there 
was a judge of the supreme court of Alabama who was nominated 
and elected because he was a silver man.   Of course, I was for him, 
Mr. President, but I was not for him because he was a silver man. I 
was for him because he was a very excellent man, a very great man.   
Nevertheless, the influence pervades political parties, and they will 
seize upon any opportunity whatever to convert judges on the bench 
into the agents of political parties and measure their title to office by 
their fidelity to a political party.   The President of the United States 
never fails to do that.   Whether the President is a Democrat or a 
Republican, the judges in the Territories - are always appointed with 
reference to their politics.   Of course, there is an effort made to get 
the best man who can be found in a certain party, but very few ever 
think of going to the opposing party to get a better man than yon 
can find in your own party. That was my objection, Mr. President, 
to a good deal of what we are doing here on this subject of 
appointing judges.   I did not want the judge of the supreme court of 
the Territory to be put into the hands of the President of the 
United States, because I knew that that office and all the other 
offices that were to be filled by the President and subject to his 
removal would at once become

political offices.   No man would think of going down to the Executive 
Mansion here to apply for a position in Hawaii after this act is passed 
unless he was a well-established Republican.   A Democrat has no 
chance.   The bill as we have got it now legislates out of office in 
Hawaii every Democrat who has got an aspiration to any such 
place, and I believe that that is one of the leading purposes of this 
change.   I believe that Senators on this floor are determined that a 
political complexion shall bo given to the judicial establishments in 
Hawaii as well as other establishments. The object is to get the 
control of the patronage, to use it for purposes of power.   Well, I 
oppose that. I am willing enough to have it in all the Executive 
Departments, because we have got to submit to it.   We can not make 
the world exactly right and exactly clean in one half hour.   1 am 
willing, or at least I consent to it, as to the Executive Departments; 
but when you come to the judicial establishment, Mr. President, I 
say it is a very dangerous practice to put the disposal of the lives and 
the property and the liberty of any set of people in this world into the 
hands of a man because he happens to bo a Republican or happens 
to be a Democrat, when there is another man in an opposing party 
better qualified and whom the people have a more earnest wish that 
he should keep the office. Mr. PLATT of Connecticut.   Will the 
Senator from Alabama yield to me? The PRESIDENT pro tempore.   
Does the Senator from Alabama yield to the Senator from 
Connecticut? Mr. MORGAN.   Certainly. Mr. PLATT of Connecticut.   
I should like to suggest an amendment to the amendment, which I 
think is unnecessary, but which I think would meet the criticism 
which the Senator is making.   It is in line 12 of the amendment, 
after the words "circuit court," to insert a comma instead of a period 
and the words: And said judge shall have and exercise all the powers 
conferred by the laws of the United States upon the judges of district and 
circuit courts of the United States.
I do not think it is necessary, but it can do no harm. Mr. TELLER.   
I will accept that modification. Mr. MORGAN.   Now, that brings 
the constitutional question squarely up.   Please read it again. Mr. 
PLATT of Connecticut.   The Secretary has it. The SECRETARY.   
After the words "circuit court," in line 12 of the amendment, add the 
following:
And said judge shall have and exercise all the powers conferred by the laws 
of the United States upon the judges of district and circuit courts of the United 
States.
Mr. MORGAN.   That amendment, Mr. President, plainly violates 
the Constitution of the United States.   The Senators have 
admitted that it is necessary to the completion of their amendment 
here, because unless that amendment is adopted, you are running 
the court on one wheel.   You are exercising the judicial functions 
that a man as a judge may perform there on the bench and you take 
away from him those functions that he may perform in chambers.   
The amendment is all right except that it is unconstitutional, and it 
makes the whole provision unconstitutional for this reason -- Mr. 
PLATT of Connecticut.   Mr. President -- Mr. MORGAN.   If you 
will allow me a second - it makes it unconstitutional for this 
reason, that in our effort to confer upon this court and this judge all 
the powers of the district court and a district judge of the United 
States, a circuit court and a circuit judge of the United States, we 
are attempting to confer upon him the power to sit in a court in 
California.   You can not do it, because no man can sit in a district 
court or a circuit court of the United States, the Federal court in 
California, unless he is qualified for that place and appointed under 
the Constitution of the United States, and there is no pretense that 
this is under the Constitution of the United States.   I yield to the 
Senator from Connecticut. Mr. PLATT of Connecticut.   I do not 
think the amendment is necessary, but I thought it would meet the 
criticism which the Senator from Alabama was making, and 
therefore I was quite willing to offer it.   I think it is true that the 
Territorial judges, as they are called, the judges of Territorial 
courts, when United States jurisdiction has been conferred upon 
those courts, have, without any special authority, exercised the 
powers and functions of judges of the district court.   Senators who 
have lived in Territories know better than I, but I think that is true. 
Mr. MORGAN.   Well, Mr. President, if this amendment before it 
was amended, or even this  amendment since it was amended, 
includes the powers of a judge of a district or circuit court of the 
United States within its purview it is evidently unconstitutional, for 
it undertakes to confer upon a legislative judge those powers which 
belong under the Constitution, and can only belong under the 
Constitution, to a judge appointed by the President of the United 
States in virtue of the Constitution as a Federal judge.   Now, here 
is an appellate court in the District of Columbia -- Mr. CLARK 
of Wyoming.   Will the Senator yield to me?

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