CHAPTER XII.

OF THE TERRITORIAL COURTS.

The

In virtue of the third section of the fourth article of the constitution of the United States, by which it is declared that, "The congress shall have power to dispose of, and make all needful rules and regulations, respecting the territory or other property belonging to the United States," the United States possess plenary and undivided sovereignty over the immense regions thus confided to their care; and in the exercise of this trust, congress has from time to time, established territorial governments over defined portions of the national domains. Many of the territories thus formed have successively been constituted states and as such admitted into the Union. organic acts of the eight existing territories are in most respects alike. The executive power "in and over the territory" is vested in a governor appointed by the president and senate, who holds his office four years unless sooner removed by the president. He is commander-in-chief of the militia and superintendent of Indian affairs. He has a qualified veto and pardoning power; and is charged with the duty of taking care that the laws be faithfully executed. There is a secretary appointed in like manner, who, in case of a vacancy in the office of governor is temporarily invested with his powers and performs his duties.

The legislative power of the territory is vested in the governor and a legislative assembly consisting of a council and house of representatives chosen by the people. The legislative power extends "to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of"

CHAP. 12.

PART 1. the organic act; but no law can be passed interfering with the primary disposition of the soil; no tax can be imposed upon the property of the United States, and the property of non-residents cannot be taxed higher than that of residents.

The judicial power is vested in a supreme court, district courts, probate courts and justices of the peace. The supreme court consists of a chief justice and two associate justices appointed by the president and senate, who are required annually to hold a term of the court at the seat of government of the territory. They hold their offices for four years. The territory is to be divided (by a law of the territory) into three judicial districts, and a district court is to be held in each by one of the justices of the supreme court assigned for the purpose, "at such times and places as shall be prescribed by law." This is the language of all the organic acts. But, by a general act (August 16, 1850, ch. 124), the judges of the supreme court of the several territories, or a majority of them, are required "when assembled at their respective seats of government to fix and appoint the several times and places of holding the several courts in their respective districts, and limit the duration of the terms thereof. Provided, That the said courts shall not be held at more than three places in any one territory: And provided further, That the judge or judges holding such courts shall adjourn the same, without day, at any time before the expiration of such terms, whenever in his or their opinion the further continuance thereof is not necessary," and by another general act (June 14, 1858, ch. 166), the several judges are "authorized to hold court within their respective districts, in the counties wherein, by the laws of the said territories, courts have been or may be established, for the purpose of hearing and deter

mining all matters and causes, except those in which CHAP. 12. the United States is a party: Provided, That the expenses thereof shall be paid by the territory, or by the counties in which said courts are held, and the United States shall in no case be chargeable therewith." This act, it will be seen, provides for the appointment of special sessions of the district courts for the accommodation of private suitors alone. In speaking of "the counties wherein, by the laws of the territory, courts are held, it infers either a forgetfulness of the above recited act of 1856, requiring the judges to appoint the places as well as the times of holding the courts, or else the assumption that the authority of the judges was limited to a designation of the particular places for the sessions of the court, in the counties already designated for that purpose by law. The former inference seems the more probable. The judges are appointed for the term of four years and no authority is given or recognized by law to remove them from office. And yet, they have in several instances been superseded by the appointment of others in their place. The jurisdiction of the supreme and district courts, both original and appellate, and that of the probate court and of justices of the peace, "shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy where the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars;1 and the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction." From the final decisions of the district courts, writs of error and appeals are allowed to the supreme court of the territory under such regulations as shall be prescribed by law; and writs of error and 'In the territory of Colorado, this limitation is $300.

PART 1. appeals from the final judgments of the supreme court to the supreme court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witnesses, exceeds one thousand dollars;1 and from all decisions whether of the supreme or district courts, or of either of the judges, upon a writ of habeas corpus involving the question of personal freedom.

The district courts are severally invested with “the same jurisdiction 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." The first six days of every term of the district courts, or so much thereof as shall be necessary, are to be appropriated to the trial of causes arising under the Constitution and laws of the United States, and the appellate power of the supreme court of the territory extends to cases of this description in like manner as to others. The clerks of the supreme court and of the several district courts are appointed by these courts respectively, and by the general act of August 16, 1856, ch. 124, the judges are forbidden to appoint more than one. There is a territorial attorney and marshal appointed by the president and senate for the term of four years.2

'In the Territory of Washington this limitation is $2,000. A writ of error from the supreme court of the United States to the supreme court of a territory, may be issued by the clerk, and the citation may be signed by the chief justice of the latter court. Sheppard v. Wilson, 5 Howard, 210.

As a question of strict statute construction, the fees to which the territorial attorneys and marshals and the clerks of the territorial courts are entitled, are left in great uncertainty. The oldest of the existing territories are New Mexico and Utah, organized in 1850, and the organic acts gave to these officers the same fees as they received in the territory

The territorial government of NEW MEXICO was CHAP. 12. established by the act of September 9, 1850, ch. 49; that of UTAH by an act of the same date, ch. 51; that of WASHINGTON by the act of March 2, 1853, ch. 90; that of NEBRASKA, by the act of May 30, 1854, ch. 69; that of COLORADO, by the act of February 28, 1861, ch. 59, amended by the act of March 2, 1863, ch. 70; that of NEVADA, by the act of March 2, 1861, ch. 80; that of DAKOTA, by the act of the same date, ch. 86; and that of IDAHO, by the act of March 3, 1863, ch. 117.

of Oregon. In each of the subsequent organic acts, a like reference is made to Oregon, Utah or some other prior acts, each successive reference being, in effect, to the act organizing Oregon. But this last act refers to the act organizing Wisconsin, passed in 1836, which gives to these officers the same fees as are allowed to the attorneys, marshals and clerks of the Northern District of New York. Six of the eight territories have been organized by laws passed since the passage of the fee bill of February 26, 1853, printed in the appendix, and the references these laws contain to prior organic acts, plainly infer that they were drawn up and passed either without a recollection of the existence of the act of February 26, 1853, or under the impression that this act does not embrace the territories. It is highly probable, however, that its provisions are in fact applied at the treasury department to territorial officers.

The political condition of the people of the territories is anomalous. The laws by which they are severally constituted territories, are, in effect, their constitutions. But they had no voice in their enactment, and have no power to alter them. The extent to which they enjoy the privilege of self government is determined by a superior power, and may at the pleasure of the same power be abridged. They have no voice in the choice of their chief executive and judicial officers, and no control over their conduct. These officers are generally persons of whom they have never heard, arbitrarily selected, without regard to their fitness for the posts they are to fill. It is, to say the least, doubtful whether the territorial governments are a boon to the inhabitants. They contribute little to the security of the rights of persons or property, while they are an impediment to the exercise of the right of self protection.