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2440
The PRESIDENT pro tempore.   Will the Senator from Alabama 
yield to the Senator from Wyoming? Mr. MORGAN.   I should like 
very much indeed to be permitted to state my case before I am 
interrupted. Mr. CLARK of Wyoming.   I beg the Senator's pardon. 
Mr. MORGAN.   Here is a judge of the supreme court of the 
District of Columbia and judges of the appellate court of the District 
of Columbia.   Who would be more surprised than the Senator from 
Colorado if one of these judges should go over to Baltimore and sit 
on the bench in an appellate court or a circuit court or a district 
court of the United States?   Nobody; and yet his tenure is for 
life." He has got all the powers of a circuit judge and a circuit 
court: but he is not a Federal officer, or at least the contention is 
that he is not a Federal officer, that he does not belong to the 
Federal judiciary.   He is an outsider; he is a legislative 
construction, and not a constitutional fabric. , That is the 
difference between the two people. Now, who would be more 
astonished than the Senator from Colorado if one of the judges of 
the supreme court - Judge Cole or anyone else on that bench - 
should be invited to go to Baltimore to sit on the Federal bench there 
in the Federal court in the State of Maryland?   And yet Judge Cole 
has got all the powers of a district judge of the United States; every 
one, both those that are exercised while he is on the bench as the 
judge of a court and those that are exercised while he is off the 
bench as a district judge of the United States; and he has a life 
tenure, too.   At the same time, Mr. President -- Mr. TELLER.   
Mr. President -- The PRESIDENT pro tempore.   Will the Senator 
from Alabama yield to the Senator from Colorado? Mr. MORGAN.   
Certainly. Mr. TELLER.   Does the Senator mean to say that I 
want this judge to sit in a California court? Mr. MORGAN.   No; I 
do not suppose you would want him to do it. Mr. TELLER.   That 
is the very purpose I have, that he shall not attempt it.   I know 
he has not any right to do it.   I know you can not give any right 
to one man in that Territory, under the conditions we propose, to 
go to California and sit.   I do not want him to go there. Mr. 
MORGAN.   Then the language is too broad, for the language 
carries him there. Mr. TELLER.   No; in my judgment it does 
not carry him there. Mr. MORGAN.   Well, that is a difference of 
opinion between the Senator and myself that I hope can be 
reconciled without any personal difficulty at least. Mr. TELLER.   I 
do not want the Senator to assume that I am endeavoring to do 
such an absurd thing. Mr. MORGAN.   No; the Senator has an 
amendment here -- Mr. TELLER.   I am willing to give this man 
just the jurisdiction that we have given to judges, a hundred of 
them, and they have exercised it for a hundred years.   I will show 
when the Senator gets through that that is true. Mr. MORGAN.   
If you will give me a chance to get through, then yon can go ahead; 
there is no trouble about that.   The absurdity of which the Senator 
speaks is not in his mind at all, but it is in his amendment.   You 
have got it all in the amendment, every bit of it, for the 
amendment as it stands now attempts to confer upon this district 
judge in Hawaii all of the powers, rights, and privileges of a district 
judge of the United States.   Well, it is one of the powers of the 
district judge of the United States that he can sit in a court of 
appeals, if you please.   He can sit in the circuit court, if you 
please, when the occasion arises; or he can go and occupy the 
bench when there is a vacancy, or when there is a necessity tor it 
under the laws of the United States.   A district judge of the 
United States can do all that.   But the Senator, while 
conferring upon a district judge of the Territory all the powers 
of a district judge of the United States, says: "I do not mean that 
he should do that thing; I am against his doing that thing."   
Then, if you are against it, you must qualify it by saying: "All the 
powers are conferred upon the judge of the district court, except 
that he shall not sit on a circuit bench or an appellate bench or 
another district bench in any State of this Union." Mr. CLARK of 
Wyoming.   Mr. President -- The PRESIDENT pro tempore.   
Does the Senator from Alabama yield to the Senator from 
Wyoming? Mr. MORGAN.   Yes, sir. Mr. CLARK of Wyoming.   
I hope the Senator will not consider me discourteous, because I 
am very much interested in this discussion; but I should like, to 
ask him what he considers the powers of the Territorial judges as 
they have been heretofore appointed by the President of the United 
States in the various Territories in relation to this very question that 
he is discussing. Mr. MORGAN.   I do not think that any 
Territorial judge who now holds a commission has any right to go 
and hold a district court in any State.

Mr. CLARK of Wyoming.   But is not the Senator aware of the fact 
that upon one side of the court those Territorial judges can deal 
with all the Federal questions that may arise within their 
jurisdiction?   That is, when I say jurisdiction, I mean within their 
Territorial jurisdiction. Mr. MORGAN.   I am perfectly aware of that 
fact; and that provision in the Territorial laws is an extremely 
dangerous one.   It is very irregular and quite unnecessary.   Here is a 
Territorial legislature, if you please, enacting laws.   I am going to 
make an illustration.   They enact laws which permit contract 
labor, or what amounts to contract labor, to come in there from 
Japan under certain circumstances.   The judge on the bench, as a 
judge of the Territory of Hawaii, for instance, says, "Well, this law 
appears to me to be constitutional; it is within the purview of the 
powers of the Hawaiian government; it is sustained by public 
opinion here; my friends are interested in the enactment of this 
law, and I will sustain it."  He turns to the next docket, the 
criminal docket of his court, and he will find one of these men 
indicted as violating the laws of the United States for making a contract 
and bringing that man in.   He determines, for we place the duty 
upon him of determining, whether he will sustain the Territorial 
law or whether he will sustain the other law. Now, Mr. President, 
that is too great a temptation to put before any judge, and there is no 
necessity for it.   To divide up a court into two separate 
jurisdictions, one of them Federal exclusively and the other local 
exclusively, is to divide the house against itself and to make the 
decisions of such a tribunal as that extremely unworthy of confidence.   
We have resorted to that system heretofore, and Senators who have 
practiced under that system at the bar and elsewhere, I have no 
doubt, found it convenient, but I think it would be a very sore place 
in a country that is as far from our coast as is Hawaii if we had down 
there a judge who had fell Federal jurisdiction and exercised it on the 
same bench where he exercised full Territorial jurisdiction. I do not 
know of any man in my acquaintance who I think is great enough 
to do that anyhow; I do not know of any man in my acquaintance 
who could sit on the supreme court bench of Alabama and do his 
duty on that bench, for instance, and at the same time hold a 
district court of the United States, if that were permissible, or a 
circuit court, and perform the duties of a circuit and district court of 
the United States.   To take a man and give him a four-years' term, 
to appoint him under political influences, with a tenure of office 
dependent entirely upon the will of the President, so that he 
trembles upon his seat at every decision he makes; then to give to 
that man plenary jurisdiction in all local matters, all matters 
arising under the laws of the Territory; and then to turn around 
and give to him plenary jurisdiction in all local matters that arise 
under the laws of the United States, and make him as broad and as 
powerful in the exercise of jurisdiction as a judge of the circuit court 
and a judge of the Federal court, is a solecism, an absurdity; and no 
matter how well these gentlemen in the West, who have been 
practicing before those courts, found it to work there, we ought not 
to be invited to accept any such situation now. This is the first time 
an opportunity has been distinctly presented and the necessity has 
become urgent for having a distinct and separate Federal power of 
judiciary and judicial administration in a Territory of the United 
States.   Nobody pretends to deny that it will be necessary to have 
it.   It will be necessary, if this court should be created under the 
eighty-eighth section of this bill, to have one of the very ablest 
judges we can secure to take a seat on the district or circuit bench 
to go down there and occupy that seat, and he will have his hands 
full.   He would have the marine contracts, maritime jurisdiction, 
admiralty, and whatnot. The whole great breadth of that vast 
jurisdiction will go into his hands and he will need to be a very 
able and a very learned man if he performs his whole duty to the 
Government of the United States in that new situation. To take 
that vast sweep of jurisdiction, all of it, and confer it upon a judge 
who holds a political office for four years, liable to removal by the 
power that put him in, or by the man who is elected next time because 
he does not suit his politics, and to burden that man with his little 
four-years' tenure with this vast jurisdiction, and then full 
jurisdiction, plenary jurisdiction in regard to all local matters, it is 
not within reasonable expectation that yon will find a man who is 
able to discharge the duties of the office with this vast incumbrance 
of jurisdiction piled upon him. It has been intimated here that this 
was the wish of the people of Hawaii.   The intelligent men, the 
merchants, particularly the men connected with foreign commerce, 
the shipowners, and all of that class are interested in having a 
tribunal of that sort there. The great body of the people of Hawaii 
do not ask for it at all, but they need it, and they ought to have it. 
The judicial power of the United States ought to be just as 
prominent and just as certainly present in all of its majesty in the 
islands of Hawaii as the Executive power or the Congressional 
power.   We send two of our departments there, clothed with all

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