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Hawaii Organic Act: Congressional debates on Hawaii Organic Act

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Mr. HOAR. Did not the statute the court was expounding con- 
tain the power of removal?
Mr.STEWART. No; the statute is entirely silent on that point, 
and precisely that very question arose, and it was ably discussed 
and deliberately decided by the Supreme Court that Congress 
could not provide a judge for a Territory whom the President 
could not remove; that it could not fix a term, against the wishes 
of the President to remove the judge. That has been the practice, 
and it is sanctioned by the Supreme Court. Congress can fix the 
term of the judge at ten years or twenty years, but that will not 
make it so if the President sees fit to remove him.
Mr. NELSON. Mr. President, the argument of the Senator 
.from Nevada [Mr. STEWART], as well as the argument of the 
Senator from Wisconsin [Mr. SPOONER], is founded, I think, upon 
failing to make the proper distinction. There is in every Terri- 
tory, as there is in every State, a double jurisdiction. There is a 
local jurisdiction in our organized Territories arising under local 
laws of their own legislatures and the common-law system which 
has been applied to such Territories. That is Territorial juris- 
diction. Now, when a court is created to take jurisdiction over 
that subject-matter, which is akin to the jurisdiction that the 
State courts have in the States, it is a Territorial court, and exer- 
cises Territorial jurisdiction, and is created under that clause of 
the Constitution which gives Congress the power to regulate and 
to control the Territories.
The decisions which the Senator from Wisconsin has quoted say 
that the Territorial courts are legislative courts. True; and why 
are they legislative courts? Because those courts are given that 
peculiar jurisdiction which is local to the Territories and is not 
the jurisdiction given in the third article of the Constitution to 
the Federal courts. In all those instances where we have created 
Territorial courts we have equipped them and given them, first of 
all, jurisdiction of their local jurisprudence. Then, in addition to 
that, we have given them, to a limited extent, jurisdiction of Fed- 
eral jurisprudence. If we have a right to extend to those Terri- 
torial courts a part of the Federal jurisprudence of the country, 
we have a right to extend it and give it to other courts. There 
can be no trouble. The court established in this bill is, in one 
sense, a constitutional court. Article III, section 1, of the Consti- 
tution reads as follows:
The judicial power of the United States, shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from time to time 
ordain and establish.
Technically, there is only one court established by the Constitu- 
tion in terms, and that is the Supreme Court of the United States 
but Congress is given power to establish inferior courts under 
this article; and what are those inferior courts? The second sec- 
tion of this article mentions them:
SEC. 2. The judicial power shall extend to all cases, in law and equity, arts 
ing under this Constitution, the laws of the United States, and treaties made 
or which shall be made, under their authority; - to all cases affecting ambassa- 
dors, other public ministers and consuls; - to all cases of admiralty and mari- 
time jurisdiction; - to controversies to which the United States shall be a 
party; - to controversies between two or more States; - between a State and 
citizens of another State; - between citizens of different States; - between 
citizens of the same State claiming lands under grants of different States, 
and between a State, or the citizens thereof, and foreign states, citizens or 
That measures and determines what is a Federal court or not- 
a court that has given to it that jurisdiction; and that is pre- 
cisely the jurisdiction referred to in the judiciary act. A court 
that has no other jurisdiction than that is a constitutional court. 
Section 88 of this bill gives the court provided for here no other 
jurisdiction. That is exactly the jurisdiction that is given to the 
United States district and circuit courts in the States, and that 
is precisely the jurisdiction here given by the Constitution. So 
this court is purely a constitutional court, and the only part of 
the argument of the Senator from Wisconsin that I can agree 
with is that the judge of such a court would hold his office for 
life, as provided in Article III of the Constitution.
The other question which the Senator from Massachusetts [Mr. 
HOAR] injected into this debate --
Mr. SPOONER. The Senator is wrong in the statement he 
made a moment ago.
Mr. NELSON. Allow me to say to the Senator - and then I 
will answer him - none of the decisions he has quoted is germane 
to this question, for the reason that in every one of those cases 
the courts were properly legislative courts and not constitutional 
courts, because they had the local territorial jurisdiction confined 
to them. The court provided for in this bill has none of that 
jurisdiction, and hence it is not a legislative court in the sense 
laid down in those decisions. Now I will hear the Senator.
Mr. SPOONER. I hope the Senator did not understand me as 
saying that the Territorial courts, no matter what the jurisdiction 
given them, are constitutional courts.
Mr. NELSON. Is this a legislative court provided in this sec- 
tion of the bill? Let me ask the Senator, does this section in the 
bill give this court any other jurisdiction than is given by section 
2 of Article III of the Constitution?

Mr. SPOONER.   Of course not.
Mr. NELSON. If it has no other jurisdiction, why is it not, 
then, as much a court of the United States as a similar court in a 
Mr. SPOONER. If the Senator wants me to answer that ques- 
tion, I will do so. I admit that it is within the power of Congress 
to confer all this jurisdiction upon Territorial courts; I do not 
dispute that at all.
Mr. NELSON.   This can not be a legislative court.
Mr. SPOONER.   It is a legislative court.
Mr. NELSON. It is a legislative court in the sense that the 
di strict courts and the circuits courts in the Territories are. They 
have all been created by act of Congress.
Mr. SPOONER. Bat the district courts and the circuit courts 
of the United States are in some sense legislative courts.
Mr. NELSON.   Certainly.
Mr. SPOONER. But the term or tenure of the judges of those 
courts is for life.
Mr. NELSON. Is it not here? Would not this tenure be for 
life? I say, then, we agree that this tenure is for life.
Mr. SPOONER. We have the right to make the tenure of the 
Territorial judge what we choose.
Mr, NELSON. Not where you give him nothing but Territorial 
jurisdiction. Let me read the Constitution and see:
The judicial power of the United States shall be rested in one Supremo 
Court, and in such inferior courts as the Congress may from time to time 
ordain and establish. The judges, both of the Supreme and inferior courts, 
shall hold their offices during good behavior.
When this court is created, if at all. it will owe its existence 
its Jurisdiction, and its life to Article III of the Constitution.
Mr, SPOONER.   Not at all.
Mr. NELSON. Yes, sir; because it has none of that local juris- 
diction that is given in the case of the others.
Let me read here the law in reference to the Territory of Minne- 
sota bearing upon this, and then the Senator will be able to see the 
difference. By the organic act of the Territory of Minnesota, the 
local Territorial courts were established - the district courts and 
the supreme court - and then, in connection with it, there is this 
clause added:
And each of the said district courts shall have and exercise the same juris- 
diction, in all cases arising under the Constitution and laws of the United 
States, as is vested in the circuit and district courts of the United States.
That is, conferring Federal jurisdiction on local Territorial 
courts. Here in this bill you have a separate and distinct Terri- 
torial court, and this court here has nothing of territorial jurisdic- 
tion. No case arising under the local law, under local statutes, or 
under local jurisprudence could be tried in this court, but only cases 
that would come under the judiciary act, or under Article III of the 
Constitution would be within the pale of the jurisdiction of this, 
Mr. ALLISON.   Did those judges hold for life?
Mr. NELSON. I think, under this clause of the Constitution, 
they would.
Mr. ALLISON.   But did they?   They were Territorial judges.
Mr. NELSON. They were Territorial judges because they had 
a double jurisdiction, but this court has not such jurisdiction. In 
all these other cases that yon have referred to and which are cited 
in the courts they had a double jurisdiction. They had a Terri- 
torial jurisdiction and a Federal jurisdiction. They were not 
pure Federal courts. But the court established by this section is 
a pure Federal court, with no jurisdiction of the local jurispru- 
dence in the Territory of Hawaii. Hence, if we have the power to 
create it at all, it must be under this third article of the Constitu- 
tion; and if it is a court under that clause and under that power, 
the judge will have life tenure.
Mr. TELLER. Will the Senator allow me? I want to modify 
my amendment by making it clear. It reads:
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 
I desire to add after that "of the United States," so that there 
will be no question about it.
The PRESIDENT pro tempore. The Senator from Colorado 
lias a right to modify his amendment.
Mr. TELLER. I have a right to modify it, and I modify it as I 
have indicated.
Mr. BACON. Without detaining the Senate, if the Senator will 
pardon me, I wish to call the attention of the Senator from Ohio 
[Mr. FORAKER] to the fact that the act creating the Louisiana 
court, upon which he has commented, required that the salary of 
the judge should be paid out of the revenues of the Territory, 
which plainly indicates that it was not the purpose of Congress; to 
make it a constitutional court. Otherwise the salary would cer- 
tainly have been paid out of the Treasury of the United States,.
Mr. FORAKER.   I do not see in that any conclusive argument.
Mr. BACON.   I simply suggest that as a fact.
Mr. FORAKER.   I do not see any reason why in a Territory we

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