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Hawaii Organic Act: Congressional debates on Hawaii Organic Act

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Mr. SPOONER.   If the Senator from Ohio will not yield to me, 
I will yield to the Senator from Ohio. 
Mr. FORAKER.   I can say it in a moment, and I will be care- 
ful to take but a moment about it, in view of the way we are rob- 
bing the Senator of his time.   It seems to me that a complete 
answer to all that is involved in the question of the Senator from 
Massachusetts, if I rightly understand the question, is found in 
simply recalling the office of a court.   What the court is called 
upon to do is. to decide legal propositions that arise and are 
brought before it. 
Mr. HOAR.   To support the Constitution. 
Mr. FORAKER.   For instance, the judge who was appointed 
and who qualifies by taking an oath of office to support the Con- 
stitution of the United States is to decide all cases in law and 
equity arising under this Constitution, the laws of the United States, 
and treaties made or which shall bo made under their authority. 
His jurisdiction shall extend to all cases affecting ambassadors, 
other public ministers, and consuls, etc.   The Senator is familiar 
with it all. 
Mr. NELSON.   Will the Senator from Ohio allow me to inter- 
rupt him a minute? 
Mr. FORAKER.   Yes, certainly. 
Mr. NELSON.   I wish to call his attention to the fact that the 
question of the Senator from Massachusetts was intended to raise 
an entirely different question.   The question was intended simply 
to raise the fact as to whether the Constitution of the United 
States goes into the Territory of Hawaii, and the inquiry was not 
involved in the matter we are discussing now. 
Mr. HOAR.    Or to all Territories everywhere. 
Mr. FORAKER.   Whatever may have been in the Senator's 
mind, my answer to it is, to be brief about it, that the court sits 
to settle controversies arising under the Constitution and the 
laws; and if two citizens of the United States have a question 
arising between them in Ohio or elsewhere they can litigate it in 
any court that has jurisdiction of the subject-matter and of the 
parties, no matter where that court may be situated.    But the 
court having jurisdiction to pass judgment in such a case would 
not have anything to do with the political or governmental oper- 
ation of the Constitution, either one way or the other. 
It would be perfectly competent for this court to try yonder in 
Hawaii, if it had jurisdiction of the parties and the subject-matter, 
any sort of controversy arising here or arising elsewhere under 
the Constitution and laws of the United States, and render its de- 
cision in accordance therewith, without regard to whether the 
Constitution was in force there as an organic law or not, the 
sole question in that respect being whether the case was one aris- 
ing, not necessarily there, but anywhere under the Constitution 
or the laws or the treaties, etc., of the United States. 
Mr. HOAR.   May I ask the Senator one more question? 
Mr. FORAKER.    Certainly. 
Mr. HOAR.    Is there, in his judgment, any part of the Consti- 
tution which the court, so appointed and so sworn, would not be 
bound to support? 
Mr. FORAKER.   No. 
Mr. SPOONER.   Will not the Senator take that up in the dis- 
cussion of the Puerto Rican case? 
Mr. FORAKER.   Yes; I am sorry I can not follow this out to 
the end with the Senator from Massachusetts now, but I recog- 
nize the right of the Senator from Wisconsin to the floor, and 1 
Mr. SPOONER.   If I may be permitted to use a slang phrase, I 
have been "lost in the shuffle."   I have no regret for the inter- 
ruptions of the Senator from. Ohio, except that from my stand- 
point he has interjected into my observations a great deal of judi- 
cial error. 
The Senator from Ohio says, as I understood him, that if we are 
creating under section 1 of Article III a constitutional court for the 
Territory we can create a constitutional judge there.   Well, if we 
were creating under section 1 of Article III a constitutional court 
for the Territory, of course we would create a constitutional judge 
I understood the Senator to admit that if we were proceeding 
under the general sovereignty of the United States over these Ter- 
ritories, under that article which gives to Congress the power to 
make rules and regulations respecting the Territory and other 
property of the United States, we could not create a constitutional 
court in the Territory, the tenure of the judge of which court 
would be fixed by the Constitution rather than by the act of Con- 
gress.   That observation of the Senator from Ohio is what the 
logicians would call a petitio principii.   It begs the entire ques- 
tion in dispute between that Senator and myself.   He assumes 
that we may, under section 1 of Article III, create a constitutional 
court in the Territory the tenure of whose judge is fixed by the 
Constitution at life and whose tenure is beyond the legislative 
That is precisely the proposition which I deny.   That is pre-

cisely the proposition which is in dispute between us.   The Su- 
preme Court of the United States oftentimes has declared that in 
creating courts in Territories we did not proceed under section 1 
of Article III, but we did proceed under the other clause of the 
Constitution, which gives us the power to legislate or to make 
rules and regulations respecting the territory and other property 
of the United States.   Chief Justice Marshall says in the case of 
The Insurance Company vs. Canter that they are legislative courts. 
Mr. FORAKER.   Mr. President, will the Senator allow me? 
Mr. SPOONER.   If the Senator will permit me, I leave the city 
to-morrow, and I am anxious to get through. 
Mr. FORAKER.   I am called out of the Chamber now.   Will 
the Senator allow me just one word? 
Mr. SPOONER.   Of course, and I have allowed the Senator. 
Mr. FORAKER.   Certainly you have, and you have been so 
generous and so kind that we keep on interrupting you when we 
ought not to do so.   What I want to say is that it was true, as said 
in the Canter case and in all the cases to which the Senator refers, 
that the courts under consideration were Territorial or legislative 
courts, but they point out why they were so. because they, by 
tenure or jurisdiction, were shown to be such.   The court, in 
other words, in all those cases was considering what Congress had 
done - not what Congress might do. 
Mr. SPOONER.   The Senator from Ohio -- 
Mr. FORAKER.   I have to go now. 
Mr. SPOONER.   The Senator from Ohio has fallen into the 
strange position that the only reason why the Supreme Court of the 
United States has decided that the Territorial courts were Terri- 
torial courts in contradistinction from constitutional courts was 
that the term of the judge was limited.   That is a great mistake. 
The test is not whether we may make the tenure of the judge of 
a Territorial court for life, but the test is whether we can do any- 
thing else.   That is the question. 
As I said a few moments ago, Congress may, proceeding under 
the Territorial clause of the Constitution, if I may so call it, cre- 
ate these courts and give them such jurisdiction as Congress sees 
fit.   We may fix the term of the court and of the judge at four 
years or ten years or during good behavior; and we may provide 
that those judges may bo removed by the President. 
But Congress has no more to say about the tenure of office of a 
constitutional judge than the Emperor of China has.   Once create 
the district court under this article of the Constitution, you need 
say nothing about the tenure of office of the judge.   If you make 
it four years, it is unavailable.   If it is one of the inferior courts 
mentioned by that constitutional provision in which is vested the 
judicial power of the United States, the Constitution fixes the 
tenure of the judge.    You have no more power to provide that 
the President may remove the judge of a constitutional court (by 
that I mean one of the inferior courts mentioned in that section 
and article of the Constitution) than you have the power to take 
my life without a trial or giving me my day in court. 
Nothing is plainer than that.   No man can dispute that.    To 
say that, under the other clause of the Constitution we have the 
power to confer whatever jurisdiction we please upon the Terri- 
torial court, to make the term of the judge what we please, is not 
at all inconsistent with my contention that we can not make a 
constitutional court in the Territory, because with the jurisdic- 
tion of the Territorial court and with the tenure of office of the 
Territorial judge we have the power to do precisely what we 
It is said here by Chief Justice Marshall, speaking of those Ter- 
ritorial courts:
They are legislative courts, created in virtue of the general right of sov- 
ereignty which exists in the Government, or in virtue of that clause which 
enables Congress to make all needful rules and regulations respecting the 
territory belonging to the United States.
I appeal from the Senator from Ohio to Chief Justice Marshall 
upon that proposition.   Nor is that all.   It is said here in the 
McAllister case - and there are a number of such decisions:
The acts of Congress respecting proceedings in the United States courts 
are concerned with and confined to those courts, considered as parts of the 
Federal system -
The Federal system -
and as invested with the judicial power of the United States expressly con- 
ferred by the Constitution, and to be exercised in correlation with the presence 
and jurisdiction of the several State courts and governments.
That has been the theory of all our legislation from the be- 
They were not intended as exertions of that plenary municipal authority 
which Congress has over the District of Columbia and the Territories of the 
United States.
The power to create the constitutional court comes not from 
that clause of the Constitution, but it comes from section 1 of 
Article III, which fixes the tenure of the judge.
As before said, these acts have specific application to the courts of the 
United States, which are courts of a peculiar character and jurisdiction.

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