New-York tribune., 1901-04-08
PHILIPPINE JUDGES.


The departure from San Francisco of four
men appointed to judicial office in the Philip
pines leads THE New-York Evening Post 10
ask:
BY whom these men chosen? Under
what power? Who judged of the necessity for
their appointment. and who fixed their respec-
tive salaries? Was the advice and consent of
the Senate of the United States asked as is re-
quIred by the constitution when members of the
Federal judiciary are selected? These are some
of the questions which naturally suggest them
selves TO any one of an inquiring turn of mind
on reading such dispatch. The reply that
these judges were chosen solely by virtue OF the
general war power of the President shows that
one of the serious problems of peace in the
Philippines is already pressing for its solution.
These men were chosen by the President of the
United States by virtue of the act of Congress
comforting upon him 'all military, civil and
judicial powers necessary TO govern the Philip
pine Islands, not by virtue of the war power.
ample as that may have been before Congress
came forward 10 alothe him with express au-
thority for what he has done and is doing
The President judged the necessity of these
appointments and fixed the salaries of the
officers also by virtue of the authority vested
I'm him by act of Congress. The advice and
consent of the Senate which is required by the
constitution when members of the Federal
Judiciary are selected was not asked One
reason for not asking was that the judges
going 10 the Philippines not members of the
Federal Judiciary in the meaning of the consti-
tuition. Chief Justice Marshall and his
ciates in the Supreme Court settled that ques
tion in 1928. when they decided that courts
created by Congress for the Territory of Florida
were not representatives, of the judicial power
of the United States as defined in the consti-
tuition. but that the judges of those Florida
courts. holding office for terms of four years.
gardess of the constitutions requirement con-
cerning the tenure of Federal judges. could
exercise jurisdiction likewise regardless of the
provisions of that instrument. by virtue of the
general right of sovereignty" possessed over the
Territory of Florida bv Congress. their creator.
The Senate was not asked to confirm these
appointments. it il asked 10 confirm many
other appointments which the constitution does
not mention in detail requiring confirmation,
because Congress conferred the power of ap-
pointment without reference TO the Senate upon
the President. This il does frequently with re-
speCt to minor offices, and OCCASIONALLY with
respect TO important offices when there are
practical reasons for doing 1t did this in
1903 when II authorized the President to gov
Louisiana by officers of his own sole Sc
lection in a law of which the Spooner resolu-
tion is an almost perfect paraphrase. 1t con-
ferred the same power on the President TO rule
Florida through officials not confirmed by the
Senate. in 1904 Congress established an elabo-
rate system Of government of the Territory of
Orleans. with governor, council and Judges all
chosen by the President and some of them,
the members of the council without the ad-
vice and consent of the Senate. SO precedent
exists for judges confirmed and unconfirmed,
and for other high officers confirmed and I'M
confirmed. The President has usurped nothing
In sending out these judges. and Congress has
conferred on him no authority with reference
TO them which the Fathers have not by their
acts approved.