tations formulated in the Constitution" do not affect Congress in the government of the Territories, it would be enough to say that any such doubt has been resolved in the later cases cited above. The remark made earlier in the same opinion, that "the power of Congress over the Territories of the United States is general and plenary (p. 42), evidently does not mean that it is unlimited, as is apparent from the passage quoted above.

So, again, in Nat'l Bank v. County of Yankton, where Waite, C. J., had occasion broadly to express the power of Congress over the Territories, he was speaking of its power over the Territorial government which Congress had erected. The matter in dispute was the power of Congress to supersede an act of the legislature of the Territory of Dakota. He said (p. 133):

"Such a power is an incident of sovereignty, and continues till granted away. Congress may not only abrogate laws of the Territorial legislature, but it may itself legislate directly for the local government. It may make a void act of the Territorial legislature. valid, or a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the Territorial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States.".

But this observation followed directly upon his saying:

"Congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitions of the Constitution" (p. 133).

8.

The cases as to the Territorial courts.

We are also referred to a series of cases in which it has been held that certain provisions of the judiciary article of the Constitution do not apply to the establishment of courts of justice in the Territories by Congress.

This line of cases, which begins with American Insurance Company v. Canter, 1 Peters, 511, and includes Benner v. Porter, 9 How., 235; Clinton v. Englebrecht, 13 Wall., 434, and McAllister v. U. S., 141 U. S., 174, does not, when read with the slightest degree of care, lend any support to the theory that the Constitution is not operative in the Territories. These cases hold, indeed, that the provisions applicable to "courts of the United States," by which is meant those courts in which the judicial power of the Government is vested (those courts whose jurisdiction is limited to controversies arising under the laws of the United States, between citizens of different States, etc.), do not apply to courts the main purpose of whose establishment is the general administration of justice in the Territories. The reason is, not because the general provisions of the Constitution do not apply to the Territories, but because these particular provisions manifestly were not intended to apply to the courts organized, not under the inappropriate constitutional provisions relating to the judiciary, but under the general power of Congress to govern the Territories.

The question at issue in the Canter case was the validity of a decree of a court of the Territory of Florida. By act of Congress two superior courts were appointed for Florida, and the legislative council was authorized to establish inferior courts, having the same jurisdiction as to superior courts, except in capital cases and "except so far as made exclusive in either by other provisions of the statute" (p. 544). The court in question was established under this grant of power.

The first question to be decided was whether the jurisdiction conferred by Congress on the superior and inferior courts embraced salvage cases. We shall have occasion later to consider that part of the opinion (542-544) which relates to this point. It is not material to our present purpose to do more than state that it was answered in the affirmative.

Another point to be determined by the court was whether the jurisdiction over salvage cases was "made exclusive" in the superior courts by another section of the act. This point was decided in the negative (544–546).

The remaining question, the discussion of which covers less than an entire page (546) of the report, is the only one that concerns us now. The Chief Justice stated it as follows:

"It has been contended that, by the Constitution, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and that the whole of this judicial power must be vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish.' Hence, it has been argued that Congress can not vest admiralty jurisdiction in courts created by the Territorial legislature.'

Now, how did Judge Marshall refute this argument? Not by the assertion that Congress could do what it pleased in the Territories without regard to constitutional prohibitions, but by showing that the Constitution had not prohibited Congress from conferring admiralty jurisdiction on Territorial courts:

"We have only to pursue this subject one step farther to perceive that this provision of the Constitution does not apply to it. The next sentence declares that the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior. The judges of the superior courts of Florida hold their offices for four years. These courts, then, are not constitutional courts.

*

*

Did the Chief Justice, then, intend to assert that they were extraconstitutional or unconstitutional courts, as might appear when the sentence, as it sometimes is, is quoted incompletely? Certainly not, for what he says is:

"These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the General Government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty 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. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the 3d article of the

Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the Territories of the United States. Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the 3d article of the Constitution, the same limitation does not extend to the Territories. In legislating for them Congress exercises the combined powers of the General and of a State government."

If it can be conceived that Judge Marshall intended to hold that Territorial courts were not created by virtue of the Constitution, certainly it can not be conceived that he would have used language so inapt to express his meaning. His argument, as we understand it, depends upon the nature of the judicial department of the Government, which is constituted with strictly limited jurisdiction-over cases arising under the Constitution and laws of the United States, suits between citizens of different States, etc., etc. (Art. 3, § 2)intended to sit in the States, as well as elsewhere, and so established as to exclude the jurisdiction of the State courts in matters properly of Federal cognizance without interfering with the general administration of justice in the States by their own courts, to which Judge Marshall assimilates the Territorial courts, which are established for that purpose primarily, and not for the exercise of the special "judicial power which is defined in the 3d article of the Constitution."

And so in Benner v. Porter (9 How., 242) it is not possible to find any support for the theory of Congressional omnipotence in the Territories, except by keeping out of view the nature of the question there at issue and by segregating imperfect fragments of the opinion of the court.

It was claimed in that case that a Territorial court of Florida had jurisdiction of a suit in admiralty commenced a year after the admission of Florida as a State. The argument was that the Territorial government was not completely abrogated, inasmuch as "matters of exclusive Federal jurisdiction within the Territory, which, under our system, did not and could not pass under the State authority, still remained; and that with it, to that extent, and for the purposes of Federal jurisdiction, the Territorial organization continued" (p. 243). The answer of the court was that Federal jurisdiction in the States could be lodged only in courts constituted under the judiciary article of the Constitution, and Nelson, J., who delivered the opinion of the court, showed in very much the same manner as it was shown in the Canter case that the Territorial court whose jurisdiction was involved was not one of those courts. "They," said he, "are not organized under the Constitution," meaning, of course, that they are not organized under the direct provision of the Constitution for the organization of the Federal judiciary:

"They are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law; but are the creations, exclusively, of the legislative department, and subject to its supervision and control. Whether or not there are provisions in that instrument which extend to and act upon these Territorial governments, it is not now material to examine. We are speaking here of those provisions that refer particularly to the distinction between Federal and State jurisdiction."

Clinton v. Englebrecht (13 Wall., 434) simply followed the Canter case and Benner v. Porter in the matter of the distinction which they draw between the Federal judiciary and the Territorial courts established by Congress. The question was whether the trial judge in a Territorial court in Utah had erred in disregarding the mode of empanelling a jury prescribed by the Territorial legislature and adopting that prescribed by the judiciary act for the district and circuit court of the United States. The contention of the defendant in error was that the Territorial court was a district court of the United States and that the judiciary act applied to it.

Chase, C. J., said (p. 447): .

"The judges of the supreme court of the Territory are appointed by the President under the act of Congress, but this does not make the courts they are authorized to hold courts of the United States' (Cit'g Am. Ins. Co. v. Canter and Benner v. Porter, supra). This remark is certainly startling if read without the context, but it is presently seen to import nothing but that these courts are not a part of the judicial department of the Government are not Federal courts, such as exercise their jurisdiction within the States.

"There is no Supreme Court of the United States, nor is there any district court of the United States, in the sense of the Constitu tion, in the Territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution or [on] the General Government. The courts are the legislative courts of the Territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the Territories belonging to the United States."

The meaning of the phrase "courts of the United States" and the general nature of the subject discussed in the above cases are well illustrated in

* *

Hornbuckle v. Toombs, 18 Wall., 655.

*

This case was brought up by a writ of error to the Territory of Montana. The organic act contained the clause usually inserted in such acts since 1850, declaring that "the Constitution, and all laws of the United States not locally inapplicable, shall have the same force within said Territory * * * as elsewhere in the United States. The question was whether all regulations respecting judicial proceedings which are contained in any of the acts of Congress are imported into the practice of the Territorial courts." Bradley, J., said (p. 655):

"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, and as invested with the judicial. power of the United States expressly conferred by the Constitution, and to be exercised in correlation with the presence and jurisdiction of the several State courts and governments. 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. They do not contain a word to indicate any such intent. The fact that they require the circuit and district.

courts to follow the practice of the respective State courts in cases at law, and that they supply no other rule in such cases, shows that they cannot apply to the Territorial courts. As before said, these acts have specific application to the courts of the United States, which are courts of a peculiar character and jurisdiction." And so Clifford, J., said in

The City of Panama, 101 U. S., 460:

"Courts of the kind, whether created by an act of Congress or a Territorial statute, are not, in strictness, courts of the United States; or, in other words, the jurisdiction with which they are invested is not a part of the judicial power defined by the third article of the Constitution."

These observations of Judge Clifford were quoted and approved by Harlan, J., in the opinion of the majority of the court in

Me Allister v. U. S., 141 U. S., 174.

In that case the authorities which we have cited, and other like cases, were collated and their principle applied to the question whether the district court for Alaska was "a court of the United States" in the sense that a judge of that court was not liable to removal at the pleasure of the President. We find nothing said by the learned judge, who was the author of the opinions in Callan v. Wilson and Thompson v. Utah, which conflicts with our understanding of the law laid down in those cases. The conclusion which he deduces from the earlier cases

as to Territorial courts is (p. 184) that

"These cases close all discussion here as to whether Territorial courts are of the class defined in the third article of the Constitution. It must be regarded as settled that courts in the Territories, created under the plenary municipal authority that Congress possesses over the Territories of the United States, are not courts of the United States created under the authority conferred by that article."

It is true that the learned judge, after expressly declining to consider "how far" the exercise of the "plenary power of Congress over the Territories" was "restrained by the essential principles upon which our system of government rests, and which are embodied in the Constitution" (p. 188), quoted the remark of Bradley, J., upon which we have commented above. But he quoted it as an assertion that such restriction, whatever its extent might be, did exist; and he was not considering the subject of express limitations (for he had already held that there were none which affected the matter he was considering). but the claim of the appellant upon general principles, lying at the foundation of our institutions" (p. 187) that the term of judicial office during good behavior was demanded by the spirit of the third article.

9.

Ross's case.

In re Ross, 140 U. S., 464, is also supposed to lend color to the theories of counsel for the Government. It was held in that case that a trial in our consular court in Japan for a murder committed within