Article 3, Section 1
United States v. Jacobson26 Fed. Cas. 567, no. 15,461 C.C.D.N.Y. 1817
On the other ground of objection relating to the jurisdiction, the judge said that his private opinion was decidedly in favor of the objection. The act of congress directing the justices of the supreme court of the United States to hold circuit courts was unconstitutional, and not binding on the judges. The supreme court was created by the constitution, and its powers and duties were therein defined. The legislature, therefore, could neither add to the one nor to the other. This precaution was highly proper, as it respected the appellate court of the federal judiciary. If, besides the duties prescribed for it by the constitution, the legislature were at liberty to add to them such others, not only in their own court but in courts with which they had no connection, there would be an end of that independence which should ever exist between co-ordinate branches of the same government; and so long as such power shall continue to be exercised, and be acquiesced in, the supreme court will be kept in a state of dependence on the legislature, which could never have been contemplated by those who framed the constitution. It is a fact that the labor of holding circuit courts has become much more burdensome to the judges of the supreme court than the discharge of their regular, appropriate, and constitutional functions in the court for which they are commissioned. It may be added, for so the fact is, that the business of the supreme court is much impeded by the attention of the judges to their circuit duties, to the very great inconvenience and heavy expense of the suitors therein. Congress have a right to ordain and establish, from time to time, such inferior courts as they may think fit; but they have no power to commission the judges of such courts, nor to appoint any judge by law. If they thought proper, therefore, that a circuit court should consist of a district and another judge, such other judge should have been appointed, as well as the district judge, on the nomination of the president, and by and with the consent of the senate. He should have been commissioned during good behavior, and have received a compensation for his services. But no commissions have ever been granted to the justices of the supreme court constituting them judges of the circuit court, nor have they taken any oath of office as such; and instead of receiving a compensation for these heavy and expensive duties, their salaries as justices of the supreme court have been greatly diminished by them. The inconvenience of the system as it respects the administration of justice may also tend to show that the constitution in this respect has not been pursued. It could never have been intended that the judges of a court, whose principal duties are of an appellate nature, should ever form a constituent part of those inferior tribunals whose decisions they were to revise. The disadvantages of such a system in practice can hardly be estimated, except by those who have had some experience in them. It is certainly desirable that judges of an appellate court should form no opinion in an inferior tribunal; and when sitting separately on questions which are to come before them in a court of appeals, or otherwise, the benefit of consultation, so important to a suitor, and of a judgment resulting from such consultation, without any previous bias, will be in a great measure lost. So very inconsistent are these duties that if the president had been left, as he ought to have been, to nominate and commission a judge of the circuit court, it would hardly have occurred to him to offer such commission to a judge of the supreme court; and if he had, and it had been accepted, such judge must certainly have resigned the one which he before held.
It will be seen, also, by the constitution, that the judges of the supreme court have not only a very limited original jurisdiction, but little or none of a criminal nature; and yet the most extensive criminal cognizance, extending even to the capital offenses, is given to them as members of the circuit courts. Now, if congress cannot extend the original jurisdiction of the supreme court beyond the bounds limited by the constitution, and so that court has decided, it is not seen how they can extend the jurisdiction of the several judges of that court to cases over which the court itself has neither original nor appellate jurisdiction; or how, because the constitution and their commissions have made them judges of the supreme court, congress can, without their consent, make them judges of an inferior court. One thing is certain, that if congress can make them discharge the duties of one inferior court, they can throw into their hands the business of every inferior tribunal that may be established; and, indeed, it is not long since that a bill passed both houses of congress assigning, in certain cases, the duties of the district courts to the judges of the supreme court. The president, Mr. Madison, returned the bill with objections, and it did not pass. These objections are not now before me, but as far as they are recollected, they would apply as well to the act under consideration as to the one for which they were made. But it is unnecessary to pursue this inquiry further: for although this be my own opinion, which I have thought it my duty to express, it will be remembered that this question came before the supreme court in 1803, when the judges, waiving any opinion on the constitutionality of this act, were pleased to consider the practice of a few years under it as precluding all argument on the subject. Whether, if the question shall ever come before that court, it will consider such acquiescence as putting at rest this great constitutional question I cannot say, as it has never received a decision on its merits. It is not yet too late, in my opinion, to review the one which has taken place; but until that be done in its proper place, this court is bound by it, and must suppose, whatever its opinion may be, that it has a right to hold jurisdiction of this case, and to pronounce judgment on the present verdict.
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