usages which govern such extradition, property found upon his person at the time of his arrest, if obtained by the commission of the criminal act of which he is charged, or if material as evidence to prove such act, is generally surrendered with the person at the time of the extradition. At the time Neely was extradited, however, no such demand was made, and the present request seems to be in the nature of a personal request addressed by the judge of the court of instruction of the eastern district of Havana to the military governor of the island of Cuba. If the personal effects in question be needed for the purpose of evidence, they should be sent to Cuba for production in court. But your Department owes it to itself, as well as to the assistant chief of police, that the surrender should be under such conditions as will insure its return, if necessary. necessary. If, however, the request of the judge is to be understood as an assertion of title to the personal effects in question, then I do not think these personal effects can be safely surrendered in the absence of a formal adjudication in a civil proceeding to which Neely was a party, and as to which he had his day in court.

While I am not called upon to express more than a legal opinion, or to advise with reference to administrative measures, yet I venture to suggest that this money can be delivered by you to the Secretary of War, and by him to the Military Governor of the Island of Cuba, with the understanding that it be retained by the Military Governor of the Island of Cuba pending a final decision as to its true ownership. If these personal effects are needed as evidence in any civil or criminal actions which may be pending against Neely in the Island of Cuba, they can be produced by the Military Governor. If hereafter it be judicially determined that the personal effects taken from Neely are in law the legal property of the department of Cuban posts, the money can be delivered by said Military Governor to the proper official connected with that department. Receipts should, however, be taken which will insure the return of said money to the Post-Office Department if the circumstances of the case hereafter require such return.

Respectfully,

The POSTMASTER-GENERAL.

P. C. KNOX.

LEGISLATURE OF HAWAII-INCREASE OF CIRCUIT JUDGES. The power of the Territorial legislature of Hawaii is that conferred expressly or by proper implication by the organic act organizing that Territory (31 Stat., 141), that act standing in relation to the legislature of that Territory much as the Constitution of the United States does to Congress.

The grant of the power of legislation conferred by section 55 of that act, within the limitation prescribed, confers the power to organize the courts of that Territory, to fix their jurisdiction, and the number of their judges.

This grant of power is not an abdication by Congress of any of its own power to legislate for the Territory, but only a grant of such powers as Congress does not itself choose to exercise. This limitation forbids the exercise of such power whenever and to the extent that it has been exercised by Congress in subsisting enactments.

DEPARTMENT OF JUSTICE,

October 9, 1901.

SIR: The legislature of the Territory of Hawaii having passed an act increasing from two to three the circuit court judges of the first circuit in that Territory, the question of its power to do so is raised, and by you referred to me for my views, which I have the honor to submit, as follows:

The power of the Territorial legislature of Hawaii is just that conferred expressly or by proper implication by the organic act organizing that Territory (31 Stat., 141), that act standing in relation to the legislature of that Territory much as the Constitution of the United States does to Congress.

By section 55 of that act it is provided "that the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States, locally applicable."

This, of course, would confer the power to organize the courts of the Territory, fix their jurisdiction, the number of judges, etc., within the limitation prescribed. But this limitation forbids the exercise of such power whenever and to the extent that it has been exercised by Congress itself in subsisting enactments. This grant of power is not an abdication by Congress of any of its own power to legislate for the Territory, but only a grant of such powers as Con

gress does not choose to itself exercise; and the act itself is the exercise of very much legislative power, both general and in detail. And to the extent that in this organic act and otherwise it has done so, legislation is forbidden to the Territorial legislature, for the limitation not inconsistent. with the laws of the United States means also not inconsistent with the organic law then being enacted.

But this organic act in itself says nothing as to the number of judges of the circuit court in any judicial circuit. Section 81 vests the judicial power of the Territory in “one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish," and section 82 fixes the number of the members of the supreme court; but the only enactment fixing the number of circuit. judges in any circuit is the statute of the Republic of Hawaii, adopted and continued in force by this act of Congress.

There can be no doubt that Congress may adopt as its own for a Territory an act already prescribed by another legislature, or that by so doing the law thus adopted becomes and is a law of Congress just as much as if enacted by it in hec verba. This has frequently been done in other instances than this, notably in the adoption for Indian reservations and Territories of portions of the laws of neighboring States.

The laws of the Republic of Hawaii, which are thus adopted by Congress as part of the law of that Territory, are thus referred to in that act, section 1:

"The phrase the laws of Hawaii,' as used in this act without qualifying words, shall mean the constitution and laws of the Republic of Hawaii in force on the twelfth day of August, eighteen hundred and ninety-eight, at the time of the transfer of the sovereignty of the Hawaiian Islands to the United States of America.

"The constitution and statute laws of the Republic of Hawaii then in force, as set forth in a compilation made by Henry M. Ballou under the authority of the legislature and published in two volumes, entitled 'Civil Laws' and 'Penal Laws,' respectively, and in the 'Session Laws' of the legislature for the session of eighteen hundred and ninety-eight

are referred to in this act as 'Civil Laws,' 'Penal Laws, and Session Laws.""

The first named of these volumes is the one to which I refer herein. By that, page 455, chapter 80, under the head "Judiciary Department," also referred to and adopted in the organic act, the islands are divided into five judicial circuits and their limits defined.

Section 1136, page 455, provides that—

There shall be established in each of the judicial circuits of the Hawaiian Islands a court with the powers and under the conditions hereinafter set forth, which shall be styled the circuit court of such circuit (as, for instance, the circuit court of the third circuit)."

"Section 1137. The circuit court of the first circuit shall consist of two judges, who shall be styled first and second judges, respectively, of the circuit court of the first circuit, either of whom may hold the court."

"The circuit courts of the second, third, fourth, and fifth circuits shall consist each of one judge, who shall be styled judge of the circuit court of the circuit in which he is located (as, for instance, judge of the circuit court of the third circuit)."

These laws provide, also, for the jurisdiction, powers, and duties of these courts, and a code of civil procedure, and all the necessary machinery for such courts; and it is believed that these laws, by their adoption in the organic act of that Territory, are the only laws organizing said courts or fixing the number of their judges. Their adoption by Congress as part of the act organizing that Territory, and the question whether they are subject to alteration by the Territorial legislature, and to what extent, will be considered together, as both matters are somewhat blended in that act.

If the law above quoted fixing the number of judges of the circuit court in the first circuit was not adopted and continued in force by this act of Congress, then there is no law fixing the number of such judges; and in that case it is quite clear that the Territorial legislature, under the legislative power so broadly conferred, might fix such number. But it seems quite certain that the Hawaiian law referred to is adopted and in force as part of the law of that Terri

tory; and this being so, the only remaining question is, whether it is subject to alteration by the Territorial legisla ture. Of course an act of Congress can not be modified or changed by a Territorial legislature unless Congress has so provided, and I have no doubt that it is within the competency of Congress, in providing a Territorial government, in such matters as the organization of courts, the number of judges, the method of procedure, etc., to provide that the legislature may from time to time change that which Congress has at first provided. I do not discuss this point. This brings us to the question whether, in respect to the number of circuit judges, Congress has in fact authorized the Territorial legislature of Hawaii to change the number of judges in the first judicial circuit.

Section 6 of the act organizing this Territory (31 Stat., 142) provides

"That the laws of Hawaii not inconsistent with the Constitution or laws of the United States or the provisions of this act shall continue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States."

Section 7 repeals a large number of these laws.

"Section 81. That the judicial power of the Territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish, and, until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force except as herein otherwise provided."

What is there besides the "jurisdiction and procedure" of courts to which the very general words, "concerning courts," can apply except their organization, the number of their judges, etc. But whether there be anything else to which this language can apply or not, it seems quite certain that it does apply to these and that it operates to continue in force the Hawaiian law establishing circuit courts and fixing the number of their judges. But if it does so, it just as certainly, and by the same language, makes such lairs subject to legislative change, not in any particular merely,

but in all.