Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/445

constitution, and see, how far adequate means are provided for all these important purposes.

§ 1573. The first section of the third article is 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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour; and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office.

To this may be added the clause in the enumeration of the powers of congress in the first article, (which is but a mere repetition,) that congress shall have power "to constitute tribunals inferior to the Supreme Court."^[1]

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1. It is manifest, that the constitution contemplated distinct appointments of the judges of the courts of the United States. The judges of the Supreme Court are expressly required to be appointed by the president, by and with the advice and consent of the senate. They are, therefore, expressly appointed for that court, and for that court only. Can they be constitutionally required to act, as judges of any other court? This question (it now appears) was presented to the minds of the judges of the Supreme Court, who were first appointed under the constitution; and tiie chief justice (Mr. Jay) and some of his associates were of opinion, (and so stated to President Washington, in 1790, in a letter, which will be cited below at large.) that they could not constitutionally be appointed to hold any other court. They were, however, required to perform the duty of circuit judges in the circuit courts, until the year 1801; and then a new system was established. The latter was repealed in 1802; and the judges of the Supreme Court were again required to perform duty in the circuit courts. In 1803, the point was directly made before the Supreme Court; but the court were then of opinion, that the practice and acquiescence, for such a period of years, commencing with the organization of the judicial system, had fixed the construction, and it could not then be shaken. Stuart v. Laird, (1 Cranch's R. 209, 309.) That there have, notwithstanding, been many scruples and doubts upon the subject, in the minds of the judges of the Supreme Court, since that period, is well known. See 1 Paine's Cirt. Rep.
   We here insert the letter of Mr. Chief Justice Jay and his associates,