Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/505

nency, and to be equally incapable of being shaken by the other branches of the government. But a different construction of the constitution has lately prevailed. It has been determined, that a power to ordain and establish from time to time, carries with it a discretionary power to discontinue, or demolish. That although the tenure of office be during good behaviour, this does not prevent the separation of the office from the officer, by putting down the office; but only secures to the officer his station, upon the terms of good behaviour, so long as the office itself remains. Painful indeed is the remark, that this interpretation seems calculated to subvert one of the fundamental pillars of free governments, and to have laid the foundation of one of the most dangerous political schisms, that has ever happened in the United States of America."^[1]

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1. Whether justices of the peace, appointed under the authority of the United States, are inferior courts, within the sense of the constitution, has been in former times a matter of some controversy, but has never been decided by the Supreme Court. They are doubtless officers of the government of the United States; but their duties are partly judicial, and partly executive or ministerial.^{[a 1]} In these respects they have been supposed to be like commissioners of excise, of bankruptcy, commissioners to take depositions, and commissioners under treaties. And it has been said, that the constitution, in speaking of courts and judges, means those, who exercise all the regular and permanent duties, which belong to a court in the ordinary popular signification of the terms.^{[a 2]}
   At present the courts of the United States, organized under the constitution, consist of district courts, (one of which at least is established in every state in the Union,) of circuit courts, and of a Supreme Court, the latter being composed of seven judges. The judiciary act of 1789, ch. 20; and the judiciary act of 1802, ch. 31, are those, which make the general provisions for the establishments of these courts, and for their jurisdiction, original and appellate. Mr. Chancellor Kent has given a brief but accurate account of the organization of the courts of the United States. 1 Kent's Comm. Lect. 14, p. 279 to 285. [2d edit. p. 298 to 305.]

1. Wise v. Withers, 3 Cranch's R. 336; S. C. 1 Peters's Cond. R. 552.
2. Sergeant on Const. (2d edit.) ch. 32, p. 377, 378.

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