University of Hawaii at Manoa Library

Home: The Annexation Of Hawaii: A Collection Of Document

Hawaii Organic Act: Congressional debates on Hawaii Organic Act

[Previous Page ] -- [ View PDF ] -- [ View in MS Word ] -- [ Next Page ]

2441
the powers that the Constitution confers upon them, the executive 
and the legislative.   But when we come to the judicial depart-
ment we give it no show; we do no not allow it to exercise its 
proper constitutional functions and legitimate influence upon that 
country. The difficulty which has attended this subject for many, 
many years is fully illustrated in the difference which these 
statutes show, where Congress has conferred one jurisdiction 
upon the Territorial courts in a certain Territory, and turned around 
in the same or next the section, conferring a different jurisdiction 
Upon a court of the same sort in a different Territory.   There are 
a great number of instances - I do not care to stop to enumerate 
them - but the instances that are cited in the Revised Statutes 
are enough to show anybody who will look the subject over that it 
is impossible to get any real system out of it. All of these 
appointments have been made heretofore for the purpose of 
suiting the legislation of Congress to the peculiarities of the 
situation in the particular Territory.   So one has one law and 
another has another law upon this subject.   That has been 
because Congress has departed from the rule that ought to have 
been established in the outset, of establishing district courts in 
the Territories.   Because it has not done so heretofore, but has 
conferred a cheap jurisdiction and a short jurisdiction as to the 
term of office upon the local courts, we are in the trouble we now 
find ourselves.   The Hawaiian Commission sought advice, infor-
mation, and instruction from the laws of the United States and 
looked through all the different Territorial acts and examined the 
laws relating to those courts carefully, to see if there was any one 
we could adopt.   I want to call attention to one particular case, 
found in section 1913 of the Revised Statutes, which reads;
The supreme and district courts of each Territory, and the respective judges 
thereof, except for Idaho and Montana, may grant writs of habeas corpus in all 
cases in which the same are grantable by the judges of the United States in the 
District of Columbia.
There was general legislation conferring upon all of these courts of 
the different Territories - that is, of every Territory of the 
United States - the power to grant writs of habeas corpus on 
the same terms that the district courts of the United States for the 
District of Columbia might grant them, with an exception as to 
Idaho and Montana. How are we to contend that there has been 
any regularity of legislation or any system adopted by the 
Congress of the United States in regard to the Territories, when we 
find in regard to this matter of granting writs of habeas corpus two 
of the Territories are not permitted to grant writs of habeas 
corpus in the same manner as they are granted by judges of the 
district courts of the United States? Our legislation on this subject 
has been entirely fragmentary and irregular, and I believe that in 
this bill there is the first effort which has ever yet been made to 
give to the judicial department of a Territory and of the United 
States - both of them - their full and just authority. I do not see 
any reason, Mr. President, and certainly there is no objection to be 
found in the Constitution of the United States, why we should 
not take this course; and if there is no reason, if there is no 
objection, I think I have sufficiently shown, and the report of the 
committee has sufficiently shown, that the necessity for this court 
in the islands is supreme, urgent, and we ought to adopt it.   Of 
course I have the greatest possible respect for the opinion of the 
Senator from Colorado [Mr. TELLER] and all the other Senators 
who have opposed this view of the subject, and who have argued 
so laboriously here against its constitutionality; but I submit that I 
nave not yet seen that any argument has been produced which 
shows that the Congress of the United States has not got the power 
to locate a district court of the United States in a Territory. Mr. 
TELLER.   Mr. President -- Mr. MORGAN.   There is another 
point about this which I desire to state, and then I will yield in one 
second, if the Senator will allow me to go on. Mr. TELLER.   
Certainly. Mr. MORGAN.   I want to call attention to this matter 
for a moment. There is a provision of this act by which the 
jurisdiction of the district court of the United States in a Territory 
may be extended over a county in Texas.   That is a strange 
provision.   I will admit that it is given in this statute.   Congress 
seemed to have concluded that it had jurisdiction and control of 
matters, both in the State and outside, in respect to the organization 
of the Territorial courts, and they have conferred upon them more 
power than has ever been conferred upon any other class of courts.   
That is my objection to the whole system.   I want the power 
divided.   I want the Government of the United States to have its 
judicial system in the Territories, as well as the local government, 
and not take the judicial powers from the Government of the 
United States and confer them, along with local jurisdiction, upon 
these courts. I think I am right about it; but Congress has 
heretofore legis-

lated in a most irregular manner, and sometimes in the most un-
accountable manner, upon this subject of Territories.   There is an 
excuse for it; and that is that every Territorial government that 
came in here had its representatives, and they had peculiarities 
which had to be overcome or provided for in some way.   So, there are 
a great variety of judicial establishments, a great variety in 
organization and in jurisdiction and in powers conferred upon the 
judges in vacation.   Some of these courts had the power to assign 
district judges to certain circuits, and all of that, in the different 
Territories.   It was the building-up process, where we in Congress 
took things as we found them and attempted to do for them the best we 
could on the occasion, all the time having in view the proposition 
that we were establishing in these different Territories, according to 
the mandate of the Constitution, as I have frequently said in this 
debate, a republican form of government.   That is the limit of 
our duties, that is the mandate that is upon us, and that is what I 
am trying to do. Mr. TELLER.   Mr. President, the provision in this 
bill for this court is unlike any other provision in any of the 
statutes of the United States.   In all other cases we have conferred 
upon the legislative court, as it is called in the Territories, the power 
of a State court, and we have conferred also the power of a Federal 
court, and those courts have exercised those powers without any 
controversy whatever.   The United States courts, as has been stated 
repeatedly, have exercised those powers of the State courts as to 
controversies between citizens, but not as to controversies that 
arise under the Constitution and laws of the United States.   They do 
not have entirely the same power that the Federal court has in this 
respect, that there is no recognition of a citizen of one State 
having any rights in the courts of another State.   There is no 
jurisdiction given because a plaintiff lives in one State and the 
defendant in another State; but these courts are given jurisdiction of 
all cases arising under the Federal Constitution.   Therefore the 
jurisdiction is infinitely greater than of a circuit or a district court. I 
do not believe that the amendment offered by the Senator from 
Connecticut [Mr. PLATT] commits the absurdity of saying that this 
judge may sit in a Federal court in California.   He will not be 
invited there, and he can not get there otherwise.   I am not going 
to waste any time on that. I intend to place the amendment in such 
form that the Senator can have no objection whatever to it.   I am 
going to modify the amendment of the Senator from Connecticut 
[Mr. PLATT] , which I accepted, after the word "exercise," so that it 
will read as follows:
And said judge shall have and exercise in the Territory of Hawaii all the 
powers conferred by the laws of the United States upon the judges of the 
district and circuit courts of the United States.
I shall ask to have that inserted. I desire to say that I have lived and 
practiced law assiduously in a Territory and did nothing else for 
fifteen years.   I know that these judges in the Territories exercise all 
the rights of judges under the Constitution and laws of the United 
States.    The Senator from Wyoming [Mr. CLARK] who sits near me 
has had experience in the same way, and there are other Senators 
who know this to be so.   There is not any trouble about it.   I 
wanted to give to each of these circuit courts that jurisdiction, and 
then get rid of this court.   In deference, however, to the Hawaiian 
Commissioners, I waived that point; and I said, "If you think you 
ought to have a court specially charged with the disposition of the 
cases which arise under the Constitution and laws of the United 
States, I will yield that;" and so 1 made this suggestion. Mr. 
President, if there is any advantage in having a district court in 
Hawaii, the people there will get it under this provision. We are 
denying nothing whatever to those people; and the complaint the 
Senator makes that we are not treating them fairly is not well 
founded, it seems to me. I do not want to have a political court over 
there any more than does the Senator from Alabama.   I have seen the 
evils of that system.   I was inclined to think that we would escape 
a political court if we followed the judgment of the commission in 
the first place, and let the governor appoint the judges of the circuit 
court; but that was voted down by the Senate. I hope the Senator 
will accept my amendment and not feel that anybody here is 
attempting to do anything to interfere with the proper discharge of 
the business in Hawaii, or to offer anything that is intended to 
discredit the action of the commission because they may have 
recommended something else. I believe, as the Senator from 
Wisconsin [Mr. SPOONER] said yesterday, that there is no power to 
establish this court as a national constitutional court.    I am not 
going to discuss that at this late hour.   I was prepared to do so 
yesterday, but there was no time.   I shall content myself with 
saying what I have said, and let the proposition be voted upon.   I 
know very well if this court is established as a Federal court - no, 
I do not know that, but I am very confident of it - the court will 
be no court at all; and there is great doubt whether it will be 
established.   In that

Return to Top

Terms of Use  |  UH Mānoa  |  UH System  |  Ask Us
University of Hawai‘i at Mānoa Library  |  2550 McCarthy Mall  |  Honolulu, Hawaii 96822 USA
808-956-7214 (Reference)  |  808-956-7203 (Circulation)  |  808-956-7205 (Administration)
808-956-5968 (fax)  |  library@hawaii.edu