The President is, by the Constitution,* authorised to nominate, and, by and with the advice and consent of the Senate, to appoint the judges of the Supreme Court. The appointment of the judges of the inferior courts is not expressly provided for by the Constitution, and Congress have passed no Act to regulate it. It has, therefore, according to Mr. Justice Story, been considered 66 silently to belong to the President, under the clause of the Constitution authorising him to appoint all other officers of the United States whose appointments are not therein. otherwise provided for."+ Not inferior in the importance of its results upon the weight and character of the judicial body, is the tenure by which they hold their offices; and there is no point upon which the able commentators on the Constitution Story, Kent, Rawle, and Tucker, have bestowed more pains than this, in their endeavours to * Article 2, section 2, c. 2. impress upon their fellow-citizens the convictions which they themselves so deeply felt, that a secure and independent tenure of the judicial office is one of the cardinal points on which their Constitution, their liberties, and even the individual safety of life and property, must always in a great degree depend. With regard to the tenure of office of the judges of the Supreme Court there is no question. They are appointed during good behaviour, by the President, in conjunction with the Senate. The practice has been in accordance with the hitherto-accepted theory, namely, that they cannot be removed, except after conviction upon impeachment for misconduct. But the judges of the inferior courts, although also appointed during good behaviour (which the law of the United States interprets to mean for life, in accordance with the decision of Chief Justice Holt upon the subject, which is the foundation of the interpretation of these words in our courts)* do not * 1 Shower's Reports, 426. 506. 536. stand, in regard to the permanence of their appointments, upon the same secure footing of precedent as their brethren of the Supreme Court.* Upon this subject, Mr. Justice Story comments as follows: 66 Unfortunately, a measure was adopted in 1802, under the auspices of President Jefferson, which, if its constitutionality can be successfully vindicated, prostrates in the dust the independence of all inferior judges, both as to the tenure of their office and their compensation for services, and leaves the Constitution a miserable and vain delusion. In the year 1801, Congress passed an Act reorganising the judiciary, and authorising the appointment of sixteen new judges, with suitable salaries, to hold the circuit courts of the United States in the different circuits created by the Act. Under this Act the circuit judges received their appointments and performed the duties of their offices until the year 1802, when the courts established by the Act were abolished by a general repeal of it by Congress, without in the slightest manner providing for the payment of the salaries of the judges, or for any continuation of their offices. The result of this Act, therefore, is, (so far as it is a precedent,) that, notwithstanding the constitutional tenure of office of the judges of the inferior courts is during good behaviour, Congress may at any time, by a mere act of legislation, deprive * Story, §§ 1600–1627. them of their offices at pleasure, and with it take away their whole title to their salaries. How this can be reconciled with the terms or the intent of the Constitution is more than any ingenuity of argument has ever as yet been able to demonstrate. The system fell because it was unpopular with those who were then in possession of power; and the victims have hitherto remained without any indemnity from the justice of the Government. "Upon this subject a learned commentator* has spoken with a manliness and freedom worthy of himself and of his country. To those who are alive to the just interpretation of the Constitution-those who, on the one side, are anxious to guard it against usurpations of power injurious to the States; and those who, on the other side, are equally anxious to prevent a prostration of any of its great departments to the authority of the others—the language can never be unseasonable, either for admonition or instruction, to warn us of the facility with which public opinion may be persuaded to yield up some of the barriers of the Constitution under temporary influences; and to teach us the duty of an unsleeping vigilance to protect that branch which, though weak in its powers, is yet the guardian of the rights and liberties of the people. It was supposed,' says the learned author, that there could not be a doubt that those tribunals in which justice is to be dispensed according to the Constitution and laws of the confederacy—in which life, liberty, and property are to be decided upon—on which questions might arise as to the * Tucker's Blackstone's Commentaries, vol. i. App. 360; 3 App. 22-25. constitutional power of the Executive, or the constitutional obligations of an Act of the Legislature, and in the decision of which the judges might find themselves constrained by duty and by their oaths to pronounce against the authority of either should be stable and permanent, and not dependent upon the will of the Executive or Legislature, or both, for their existence; and that without this degree of permanence, the tenure of office during good behaviour could not secure to that department the necessary firmness to meet unshaken every question, and to decide as justice and the Constitution should dictate, without regard to consequences. These considerations induced an opinion, which it was presumed was general, if not universal, that the power vested in Congress to erect, from time to time, tribunals inferior to the Supreme Court, did not authorise them at pleasure to demolish them. Being built upon the rock of the Constitution, their foundations were supposed to partake of its permanency, 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 |
