Y.

to continue in office five years. And such justices, United States having taken an oath for the faithful and impartial discharge of the duties of the office, shall, in all matters

office during good behaviour; nor can the power of receiving certain fees, which was given by the act of 1801, be strained to mean 66 ceiving at stated times a compensation for his services."

re

The second section of the third article declares what subjects the judicial power, given by the first section, shall extend to. And by comparing these subjects with those which are cognisable by the justice in the present case, it will confirm the position, that this judicial power is not that of the United States, and is not provided for by this part of the constitution.

Congress, in organizing the judiciary according to the constitution, have created a supreme court, and inferior courts. Some of the latter extend over certain circuits composed of different states, and others are confined to the respective states; but in all of them it is the judicial power of the United States which is carried into effect.

I consider this judicial power as being different in its object and nature from that which may be the effect of the legislative power given to congress over this territory, or of their power to make rules, &c. for such places as may become their property.

In order to show that the restrictions contained in the first section of the third article of the constitution do not extend to a justice in the district of Columbia, it may be necessary to make some inquiry into the principles on which the district is erected.

Without endeavouring to solve all the difficulties which have been mentioned in the course of the argument, I am persuaded that the following positions are correct: That the district of Columbia, though belonging to the United States, and within their compass, is not, like a state, a component part, and that the provisions of the constitution, which are applicable particularly to the relative situation of the United States and the several states, are not applicable to this district.

That the power of congress to legislate for the district arises from the positive direction of the constitution, in the 8th section of the first article; and it may be here material to attend to the words "exclusive legislation," and to discover their meaning and origin.

By the constitution, the legislative power of congress is confined to certain objects, and leaves to the several states a portion of the legislative power which they before possessed. But it was the intention of the framers of the constitution, to devest the ten miles square of the privileges of a state, and to give to congress the whole and exclusive power of legislation, as well on the subjects which had been left to the states, as on those which had been taken from them and given to the general government; that the ten miles square is not in a situation to become a state without an amendment in the constitution, and therein differs from the other territories belonging to the United States; that the word exclusive meaning only free from the power exercised by the several states, the legislative power to be exercised by congress may still be subject to the general restraints contained in the constitution, though it includes subjects both of a general and local nature. Thus they are restrained from suspending the writ of habeas corpus, unless in the cases allowed; from

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United States civil and criminal, and in whatever *relates to the conservation of the peace, have all the powers vested in, and shall perform all the duties required of, justices of the peace, as individual magistrates, by the laws herein before continued in force in those parts of the said district for which they shall have been respectively appointed; and they shall have cognisance in personal demands to the value of 20 dollars, exclusive of costs, which sum they shall not exceed, any law to the contrary notwithstanding; and they shall be entitled to receive for their services, the fees allowed for like services by the laws herein before adopted and continued in the eastern part of said district.

By the 4th section of the act of congress of 3d March, 1801, vol. 5. p. 288. the magistrates are constituted a board of commissioners, with certain duties and fees annexed to that office. And by the act of 3d of May, 1802, vol. 6. p. 181. s. 8. it is enacted, "that so much of two acts of congress, the one passed on the 27th of February, 1801, entitled "An act concerning the district of Columbia," the other passed the 3d day of March, 1801, supplementary to the aforesaid act, as provides for the compensation to be made to certain justices of the peace thereby created," "shall be, and the same is hereby repealed." The question for the decision of this court is, whether congress had a constitutional right thus to abolish the fees.

passing (within and for the district) a bill of attainder, or ex post facto law; from laying therein a capitation tax; from granting therein any title of nobility; from making therein a law respecting the esta blishment of religion, or abridging the freedom of speech, or of the press; and from quartering soldiers therein, contrary to the third amendment

But when congress, in exercising exclusive legislation over this territory, enact laws to give or to take away the fees of the justices of the peace, such laws cannot be tested by a provision in the constitution, evidently applicable to the judicial power of the whole United States, and containing restrictions which cannot, in their nature, affect the situation of the justices, or the nature of the compensation.

However ingeniously the question has been argued, I cannot feel any doubt in my mind on it. Nor can I perceive any legal or justifiable ground under which the direction of the act of 1802 has been disregarded. I am, therefore, of opinion, that the judgment on the demurrer should be for the United States.

But the judgment of the court is for the defendant.

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Jones, contra. By the act of 1801, certain fees were United States annexed to the office of justice of the peace. The traverser was appointed under that act, and while the fees *were thus annexed. (a) The principle we contend for is, that he was a judge of an inferior court of the United States, and protected by the third article of the constitution, which declares, that "the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive a compensation for their services, which shall not be diminished during their continuance in office."

A law for abolishing the fees can only affect those justices who have been appointed since the passage of that law.

It has been decided in this court, in the case of Mar bury v. Madison, (ante, vol. 1. p. 162.) that a justice of the peace in the district of Columbia does not hold his office at the will of the president.

The power to make laws is expressly given; the power to repeal is not, but necessarily follows. So the power of appointment necessarily implies the power of removal, according to the maxim, cujus est dare, ejus est disponere. This principle was settled in congress in the year 1789, after long debate upon the tenure of office of secretary of state, and was expressed by means of a clause in the law directing what officer should take charge of the papers in that department, when the secretary of state should be removed by the president. Congress has no power to limit the tenure of any office to which the president is to appoint, unless in the case of a judge under the constitution. The position for which we contend is justified by principle. The jurisdiction given to a justice of the peace makes him a judge of an inferior court. Lord Coke defines a court to be a place where justice is judicially administered; and this definition is recognised by Blackstone. Certain powers are incident to all courts, as to commit for contempts in court; for there is a difference between courts of record, and courts not of record, as to contempts out of

court.

(a) This fact does not appear in the record, but it was agreed by the counsel on both sides, that the record should be so amended as to bring the whole merits of the cause before the court.

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*By the act of 1801, the justices of the peace are to have the same powers, in all matters civil and criminal, as were exercised by the justices of the peace in Maryland. In resorting to the Maryland code of laws, we find a very early act of assembly, which gives to justices of the peace the power of punishing contempts in their presence. Indeed, they possess a vast accumulation of powers. They may inflict whipping, imprisonment, and fine as high as 500 pounds of tobacco. They have a much more extensive jurisdiction than many more regular courts. They have cognisance of civil controver sies of the value of 20 dollars. They hold courts, they try causes, they give judgments, and issue executions. Every one who consults the index to the laws of Maryland, must be satisfied that the justices of the peace constitute very important tribunals, and it is immaterial by what name they are called; they administer justice judicially; they have, therefore, the power to hold a court. The traverser was appointed before the repeal. He had a compensation which is taken away by the repeal. It is, therefore, so far unconstitutional. It is no objection that the tenure of office is limited to five years. It is not the tenure, but the essence and nature of the office, which is to decide this question. If the limitation to five years makes a difference, it would be an evasion of the constitution. But it is of no consequence how congress have determined the tenure. It is established by the constitution.

Mason, in reply. The constitution does not apply to this case. The constitution is a compact between the people of the United States in their individual capacity, and the states in their political capacity.

Unfortunately for the citizens of Columbia, they are not in either of these capacities.

The 2d section of the third article of the constitution declares, "that the judicial power of the United States. shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the

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United States shall be a party; to controversies be- United States tween two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state and the citizens thereof, and foreign states, citizens or subjects.'

The judicial power of the United States can only extend to the cases enumerated; but the judicial power exercised in the district of Columbia extends to other cases, and, therefore, is not the judicial power of the United States. It is a power derived from the power given to congress to legislate exclusively in all cases whatsoever over the district. And it is under this clause of the constitution that congress have created justices of the peace, and given them power. Congress are under no control in legislating for the district of Columbia. Their power, in this respect, is unlimited. If congress cannot limit the tenure of the office, but it must be during good behaviour, then a law might be passed without the concurrence of the legislative will.

I understand the case of Marbury v. Madison to have decided only that the justices held during good behaviour for five years under the law; and not generally during good behaviour, under the constitution.

The general provisions of the constitution do not apply to our case. We are the people of congress. They are to legislate for us, and to their laws we must submit.

Jones. The executive power exercised within the district of Columbia is the executive power of the United States. The legislative power exercised in the district is the legislative power of the United States. And what reason can be given why the judicial power exercised in the district should not be the judicial power of the United States? If it be not the judicial power of the United States, of what nation, state or political society is it the judicial power? All the officers in the district are officers of the United States.

*By the 2d section of the third article of the constitution, the judicial power of the United States is to extend to all cases arising under the laws of the United States. All the laws in force in the district are laws of the United States, and no case can arise which

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