Court and other courts. With regard to the institution of the Supreme Court, the words are imperative; while with regard to inferior tribunals, they are discretionary. The first shall, the last may, be established. And surely we are to infer, from the wise sages that formed that Constitution, that nothing was introduced into it in vain. Not only sentences, but words, and even points, elucidate its meaning. When, therefore, the Constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it a constitutional creation? and on the other, from the language applied to inferior courts, are we not equally justified in considering their establishment as dependent upon the legislature, who may, from time to time, ordain them, as the public good requires? Can any other meaning be applied to the words "from time to time"? And nothing can be more important on this subject than that the legislature should have power, from time to time, to create, to annul, or to modify, the courts, as the public good may require—not merely to-day, but forever, and whenever a change of circumstances may suggest the propriety of a different organization. On this point, there is great force in the remark, that, among the enumerated powers given to Congress, while there is no mention made of the Supreme Court, the power of establishing inferior courts is expressly given. Why this difference, but that the Supreme Court was considered by the framers of the Constitution as established by the Constitution? while they considered the inferior courts as dependent upon the will of the legislature.
January 13, 1802.
Mr. STONE, (of North Carolina.) No part of the Constitution expressly gives the power of removal to the President; but a construction has been adopted, and practised upon from necessity, giving him that power in all cases in which he is not expressly restrained from the exercise of it. The judges afford an instance in which he is expressly restrained from removal—it being declared, by the 1st section of the 3d article of the Constitution, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. They doubtless shall, (as against the President's power to retain them in office,) in common with other officers of his appointment, be removed from office by impeachment and conviction; but it does not follow that they may not be removed by other means. They shall hold their offices during good behavior, and they shall be removed from office upon impeachment and conviction of treason, bribery, and other high crimes and misdemeanors. If the words impeachment of high crimes and misdemeanors be understood according to any construction of them hitherto received and established, it will be found that, although a judge, guilty of high crimes and misdemeanors, is always guilty of misbehavior in office; yet that, of the various species of misbehavior in office which may render it exceedingly improper that a judge should continue in office, many of them are neither treason nor bribery; nor can they properly be dignified by the appellation of high crimes and misdemeanors; and for impeachment of which no precedent can be found, nor would the words of the Constitution justify such impeachment.
To what source, then, shall we resort for a knowledge of what constitutes this thing called misbehavior in office? The Constitution did not intend that a circumstance, as a tenure by which the judges hold their offices, should be incapable of being ascertained. Their misbehavior certainly is
