Thus the only ground which the present inferior courts can take, is, that congress may from time to time, regulate, create or abolish such courts, as the public interest may dictate, because such is the very tenure under which they exist.
The second question is, whether the officer is to continue after the office is abolished, as being useless or pernicious.
The constitution declares "that the judge shall hold his office during good behavior." Could it mean, that he should hold this office after it was abolished? Could it mean that his tenure should be limited by behaving well in an office, which did not exist?
It must either have intended these absurdities, or admit of a construction which will avoid them. This construction obviously is, that the officer should hold that which he might hold, namely, an existing office, so long as he did that which he might do, namely, his duty in that office; and not that he should hold an office, which did not exist, or perform duties not sanctioned by law. If therefore congress can abolish the courts, as they did by the last law, the officer dies with his office, unless you allow the constitution to intend impossibilities as well as absurdities. A construction bottomed upon either, overthrows the benefits of language and intellect.
The article of the constitution under consideration closes with an idea, which strongly supports my construction.
The salary is to be paid "during their continuance in office." This limitation of salary is perfectly clear and distinct. It literally excludes the idea of paying a salary, when the officer is not in office; and it is undeniably certain, that he cannot be in office, when there is no office. There must have been some other mode by which the officer should cease to be in office, than that of bad behaviour, because, if this had not been the case, the constitution would have directed "that the judges should hold their offices and salaries during good behaviour," instead of directing "that they should" hold the salaries during their continuance in office. This could only be an abolition of the office itself, by which the salary would cease with the office, tho' the judge might have conducted himself unexceptionably.
This construction certainly coincides with the public opinion, and the principles of the constitution. By neither is the idea for a moment tolerated, of maintaining burthensome sinecure offices, to enrich unfruitful individuals.
Nor is it incompatible with the "good behaviour" tenure, when its origin is considered. It was invented in England, to counteract the influence of the crown over the judges, and we have rushed into the principle with such precipitancy, in imitation of this our general prototype, as to have outstript monarchists, in our efforts to establish a judicial oligarchy; their judges being removable by a joint vote of Lords & commons, and ours by no similar or easy process.
The tenure however is evidently bottomed upon the idea of securing the honesty of Judges, whilst exercising the office, and not upon that of sustaining useless or pernicious offices, for the sake of Judges. The regulation of offices in England, and indeed of inferior offices in most or all countries, depends upon the legislature; it is a part of the detail of the government, which necessarily devolves upon it, and is beyond the foresight of a constitution, because it depends on variable circumstances. And in England, a regulation of the courts of justice, was never supposed to be a violation of the "good behaviour" tenure.
If this principle should disable congress from erecting tribunals which temporary circumstances might require, without entailing them upon the society after these circumstances by ceasing, had converted them in grievances, it would be used in a mode, contemplated neither in its original or duplicate.