*United States v. Benjamin More.
Jurisdiction in error.
No appeal or writ of error lies in a criminal case, from the judgment of the circuit court of the-District of Columbia.
Qucsre ? Whether the act of congress, abolishing the fees of justices of the peace, in the District' of Columbia, can affect those justices who were in commission when the act was passed ?
Error to the Circuit Court of the district of Columbia, sitting at Washington, upon a judgment in favor of the traverser, on a demurrer to an. indictment for taking unlawful fees, as a justice of the peace for the county of Washington. The indictment was as follows:
“United States, District of Columbia and County of Washington, to. wit: The jurors for the United States, for the district of Columbia, and county of Washington aforesaid, upon their oath present, that Benjamin More, late of the county of Washington aforesaid, gentleman, on the 10th. day of December, in the year of our Lord, one thousand eight hundred and two, then being one of the justices of the peace of the United States, for the county of Washington aforesaid, at the county of Washington aforesaid, by color of his said office, unlawfully and unjustly did demand, extort, receive and take of and from one Richard Spalding, constable, acting for and on behalf of one Joseph Hickman, the sum of twelve cents and a. half cent, lawful current money of the United States, for and as his fee, for executing and doing the duties of his said office, to wit, for rendering, and giving judgment upon a warrant for a small debt, in a case between, the said Joseph Hickman, plaintiff, and one Joseph Dove, defendant; in contempt of the law, to the great damage of them the said Richard Spalding, and Joseph Hickman, and against the peace and government of the United States. John T. Mason,
United States Attorney, for the district of Columbia.”
*To this indictment there was a general demurrer and joinder, and judgment in the court below for the traverser, at July term, 1803.
*97*Mason, attorney for tbe United States for the district of Columbia.
The act of congress, February 27 th, 1801, *§ 11 (2 U. S. Stat. [*162 107), declares, “that there shall be appointed in and for each of L *98the said counties (in the district of Columbia), *sueh number of discreet persons, to be justices of the peace, as the President of the United States shall, from time to time, think expedient, to continue in office five *1 «41 *years- And such justices, having taken an oath for the faithful J and impartial discharge of the duties of the office, shall, in all mat*99"ters, 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 *100cognisance in personal demands to tbe value of $20, exclusive of costs,, which sum they shall not exceed, any law to the contrary notwithstanding ; and they shall he 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 (2 U. S. Stat. 115), 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, § 8 (2 U. S. Stat. 194) 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.
Jones, contrá.
By the act of 1801, certain fees were annexed to the office of justice of the peace. The traverser was appointed under that act, and *1661 th® fees *were thus annexed. 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 behavior, and shall, at stated times, receive a compensation for their services, which shall not be diminished during their continuance in office.” A law for the 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 Marbury v. Madison (1 Cr. 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, eujus est dare, ejus est disponere. This principle was settled in congress, in the year 1789, after long debate upon the tenure of office of secretaxy 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. Judge 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-*101«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.
*By the act of 1801, the justices of the peaee are to have the same r*-, ghpowers, in all matters, civil and criminal, as were exercised by the L 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 controversies of the value of $20. 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 of five years makes a difference, it would be an evasion of the constitution. But it is of no con•sequence, 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 effecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to *controversies between two or more states ; be- r*-. 68 .tween a state and citizens of another state; between citizens of dif- L ferent 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 behavior, then a law might be passed, without the concurrence of the legislative will.
*102I understand the ease of Marbury v. Madison to have decided only that-the justices held during good behavior, for five years, under the law; and: not, generally, during good behavior, 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.
*I>y 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 is not to be decided, by those laws. What judicial power is that, which is exercised by the circuit court of the district ? They certainly exercise a very respectable part of the judicial power of the United States. Was it ever contended, that congress could limit the tenure of the offices of the judges of that court ? or that the judges were not liable to impeachment under the constitution ?
February 13th. The Chief Justice suggested a doubt, whether the appellate jurisdiction of this court extends to criminal cases.
February 22d. Mason, in support of the appellate jurisdiction of this, court in criminal cases. — By the 1st section of the third article of the constitution, the judicial power of the United States is vested in one supreme-court, and in such inferior courts as the congress may, from time to time,, ordain and establish. By the 2d section, it is extended to all cases in law and equity, arising under the laws of the United States. This is a case in law, arising under the laws of the United States, and is, therefore, within that section.
“ In all cases affecting ambassadors, other public ministers and consuls* and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme-court shall have appellate jurisdiction, both as to law and fact, with such h0-i exceptions, and under such regulations, as the congress shall make.” J *Congress has made no exception of criminal cases. I understand it. to have been said by this court, that it is necessary that congress should have made a regulation, to enable this court to exercise its appellate jurisdiction. Upon this point, I consider myself bound by the case of Clarke v. Bazadone. (1 Cr. 212.) It is clear, then, that this court has the jurisdiction, and the only question is, whether congress has made such a regulation as will enable this court to exercise it.
Such a regulation is contained in the 14th section of the judiciary act of 1789 (1 U. S. Stat. 81), which enacts, “that all the before-mentioned courts-, of the United States shall have power to issue writs of scire facias, habeas; *103corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” The writ of error in a criminal case is a writ not provided for by statute, and necessary for the exercise of the appellate jurisdiction given to the supreme court by the constitution, and agreeable to the principles and usages of law. This court has, therefore, the power to issue it.
There is no reason why the writ of error should be confined to civil cases. A man’s life, his liberty and his good name, are as dear to him as his property; and inferior courts are as liable to err in one case as in the other. There is nothing in the nature of the eases which should make a difference; nor is it a novel doctrine, that a writ of error should lie in a criminal case. They have been frequent in that country from which we have drawn almost all our forms of judicial proceedings. It is true, that it is expressly given by the act of congress of 1789, in civil cases only, but it does not thence follow, that it should be denied, in criminal.
Marshall, Ch. J. — If congress had erected inferior courts, without saying in what cases a writ of error or appeal should lie from such courts to this, your ^argument would be irresistible ; but when the constitution has p.... given congress power to limit the exercise of our jurisdiction, and to *• make regulations respecting its exercise ; and congress, under that power, has proceeded to erect inferior courts, and has said in what cases a writ of error or appeal shall lie, an exception of all other cases is implied. And this court is as much bound by an implied as an express exception.
Mason.
When legislating over the district of Columbia, congress are bound by no constitution. If they are, they have violated it, by not giving us a republican form of government. The same observation will also apply to Louisiana.
The act of congress which gives a writ of error to the circuit court of this district, differs, in some respects, from that which gives the writ of error to the other courts of the United States. The words of the judiciary act of 1789, § 22, are, “and upon a like process (that is, by a writ of error, citation, &c.), may final judgments and decrees in civil actions, and suits in equity in a circuit court,” ése., “be reversed or affirmed in the supreme court.” But in the law concerning the district of Columbia, § 8 (2 U. S. Stat. 106), the' expressions are, “ that any final judgment, order or decree in said court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be re-examined, and reversed or affirmed in the supreme court of the United States, by writ of error or appeal, which shall be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had therein, as is, or shall be, provided in the case of writs of error on judgments, or appeals upon orders or decrees rendered in the circuit court of the United States.”
In this section, if the words respecting the value of the matter in dispute were excluded, a writ of error would clearly lie in a criminal case, under the general expression, any final judgment. Then do those words respecting the value, exclude criminal cases ? Suppose, *the court below had imposed a fine of more than $100, the case would have been within the express * *104words of tbe act. So it would bave been, if a penalty of more than $100 had been imposed by law.
But tbis court bas exercised appellate jurisdiction in a criminal case. United States v. Simms, 1 Cr. 252.
Marshall, Cb. J. — No question was made, in tbat case, as to tbe jurisdiction. It passed sub silentio, and tbe court does not consider itself as bound by that case.
Mason.
But tbe traverser bad able counsel, who did not think proper to make tbe objection.
March 2d, 1805.
Marshall, Ch. J.,
delivered tbe opinion of tbe court as follows : — Tbis is an indictment against tbe defendant, for taking fees, under color of bis office, as a justice of tbe peace in tbe district of Columbia. A doubt bas been suggested, respecting tbe jurisdiction of tbis court, in appeals or writs of error, from tbe judgments of tbe circuit court for tbat district, in criminal cases ; and tbis question is to be decided, before tbe court can inquire into tbe merits of tbe case.
In support of tbe jurisdiction of tbe court, tbe attorney-general bas adverted to tbe words of tbe constitution, from wbicb be seemed to argue, tbat as criminal jurisdiction was exercised by tbe courts of tbe United States, under tbe description of “ all cases in law and equity arising under tbe laws of tbe United States,” and as tbe appellate jurisdiction of tbis court was Hoi extended to all enumerated cases, other than those *which might be * brought on originally, “ with such exceptions, and under such regulations, as tbe congress shall make,” tbat tbe supreme court possessed appellate jurisdiction in criminal, as well as civil cases, over tbe judgments of every court, whose decisions it would review, unless there should be some exception or regulation make by congress, wbicb should circumscribe tbe jurisdiction conferred by tbe constitution.
Tbis argument would be unanswerable, if tbe supreme court bad been created by law, without describing its jurisdiction. Tbe constitution would then have been tbe only standard by wbicb its powers could be tested, since there would be clearly no congressional regulation or exception on tbe subject. But as tbe jurisdiction of tbe court bas been described, it bas been regulated by congress, and an affirmative description of its powers must be understood as a regulation, under tbe constitution, prohibiting tbe exercise of other powers than those described.
Thus, tbe appellate jurisdiction of tbis court, from tbe judgments of tbe oircuit courts, is described affirmatively : no restrictive words are used. Yet, it bas never been supposed, that a decision of a circuit court could be reviewed, unless tbe matter in dispute should exceed tbe value of $2000. There are no words in tbe act, restraining tbe supreme court from taking cognisance of causes under tbat sum ; their jurisdiction is only limited by tbe legislative declaration, tbat they may re-examine the decisions of tbe circuit court, where tbe matter in dispute exceeds tbe value of $2000. Tbis court, therefore, will only review those judgments of tbe circuit court of Columbia, a power to re-examine wbicb, is expressly given by law.
*105On examining the act “ concerning the district of Columbia,” the court .is of opinion, that the appellate jurisdiction, granted by that act, is confined to civil cases. The words “ matter in dispute,” seem appropriated to civil cases, where the subject in contest has *a value beyond the sum men- p,, Honed in the act. But in criminal cases, the question is the guilt or' *- innocence of the accused. And although he may be fined upwards of $100, yet that is, in the eye of the law, a punishment for the offence committed, and not the particular object of the suit.
The writ of error, therefore, is to be dismissed, this court having no .jurisdiction of the case.