The courts may appoint “inferior officers,” such as clerks, criers, or masters in chancery; but these are not “judges;” nor would any one of them singly, nor any number of them associated together, constitute a “court,” within the meaning of the first section of the third article. Were such the case, then they might have power to appoint “inferior officers,” and so on, by sub-delegation, indefinitely.
The constitution also defines what it means by “judicial power.” It says, “The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States,” &c.
Now, my objection is, that the Fugitive Slave law requires the creation of a large body of officers who are not “judges,” but whom it purports to invest with “judicial powers.”
They are not “judges,” because they are not nominated by the President and confirmed by the Senate, as all “judges” must be.
They are not “judges” again, because, if they were, they must hold their offices “during good behavior.” But the commissioners may be unmade on the day they are made. “Judges” can be removed only by conviction, on impeachment. Commissioners may be removed by the court that appointed them. Not the President, nor the Senate, nor both together, can remove a judge, unless by the initiatory and concurrent action of the House of Representatives. An “inferior court” can eject a commissioner without notice.
Even if Congress had declared, by express words, that the commissioners appointed by the circuit and district courts should be taken and held to be “judges,” it would not make them so; for Congress cannot delegate any power to judges to appoint judges, nor to courts to make courts. If Congress could not do this by express enactment, how can it do so by implication?
Commissioners are not “judges,” also, because no person can be a “judge” who is not entitled, “at stated times, to receive for his services a compensation which shall not be diminished during his continuance in office.”
This provision necessitates the conclusion that all “judges” must be entitled to salaries payable periodically. These salaries are in no case to depend upon the amount or the quality of their labors,—far less, if possible, upon their deciding the cases that are brought before them for the plaintiff or for the defendant. One “judge” may have an enviable reputation for talent and integrity, and thus attract suitors to his court. Another may be as corrupt as Lord Jeffries, and repel all honest litigants from him. But, in either case, he has a right to a compensation which shall not be diminished during his continuance in office. Each year gives him a definite, unchanged sum of money.
But the commissioner is paid by fees, and the amount of his fees depends partly upon the number of cases he decides, and partly also upon the party in whose favor he decides. If he decides that a man is free, he receives five dollars. If he decides that he is a slave, he receives ten. If the commissioner is acceptable to slave hunters, suitors multiply. If obnoxious to them, his docket is bare of a case. He is entitled to his compensation, not “at stated times,” but on the determination of each case. His compensation may be diminished, or it may cease altogether, during his continuance in office. Each year does not give him any definite, unchanged sum of money.
The “judge” must be paid by the government, and is independent of all the parties before his court. The commissioner is never to be paid by the government, but is wholly dependent for his fees upon the claimant whose case he tries. The government guaranties the payment of the “judge,” but it can never inquire or know whether the commissioner be paid or not.