ERROR to the circuit court of the district of Columbia, sitting at Washington, upon a judgment in favour 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, viz. "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 colour 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.
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United States Attorney, for "JOHN T. MASON, |
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.
In the court below, the opinions of the judges were delivered to the following effect.
CRANCH, J. The question to be decided upon this demurrer is, whether the act of congress, for abolishing the fees of justices of the peace, in the district of Columbia, can affect those justices who were in commission before, and at the time when that act passed, and who accepted their commissions, while those fees were legally annexed to the office.
The points made in the argument of this cause, are important, and some of them, not altogether clear of doubt.
It has been contended, that congress, in legislating for the district of Columbia, are not bound by any of the prohibitions of the constitution.
But this is a doctrine to which I can never assent. Can it be said, that congress may pass a bill of attainder for the district of Columbia? That congress may pass laws ex post facto in the district, or order soldiers to be quartered upon us in a time of peace, or make our ports free ports of entry, or lay duties upon our exports, or take away the right of trial by jury, in criminal prosecutions?
Yet, all this they may do, if, in legislating for the district of Columbia, they are not restricted by the express prohibitions of the constitution. The words must be positive and strong indeed, to justify such a construction. The only clause from which such an inference can possibly seem to flow, is that which says, "congress shall have power to exercise exclusive legislation in all cases whatsoever, over such district," c.
But the whole instrument is to be taken together, and every part is to be made consistent with the residue, if possible. That congress may legislate, "in all cases whatsoever, over such district," c. is the general proposition, and the prohibitions are the exceptions. The true construction is, that congress may legislate for us, in all cases where they are not prohibited by other parts of the constitution. The express commands of the constitution operate as prohibitions of every thing repugnant to such commands. In every case, therefore, where congress are not bound, either by the commands or prohibitions of the constitution, they have a discretionary power to legislate over the district.
The constitution was made for the benefit of every citizen of the United States, and there is no such citizen, whatever may be his condition, or wherever he may be situated within the limits of the territory of the United States, who has not a right to the protection it affords. Page 161 If congress are bound by the constitution in legislating for this district, then it becomes proper to test the validity of their legislative acts, respecting the district, by the provisions of the constitution.
The 3d article of the constitution, provides for the independence of the judges of the courts of the United States, by certain regulations; one of which is, that they shall receive, at stated times, a compensation for their services, which shall not be diminished during their continuance in office.
The act of congress, of 27th of February, 1801, which constitutes the office of justices of the peace, and empowers them to try personal demands, of the value of 20 dollars, ascertains the compensation which they shall have for their services in holding their courts, and trying those causes. This compensation is given in the form of fees, payable when the services are rendered. The causes of which they have cognizance, are causes arising under the laws of the United States, and, therefore, the power of trying them, is part of the judicial power mentioned in the 3d article of the constitution, which expressly declares, that the judicial power of the United States, shall extend to all cases arising under those laws.
It is difficult to conceive how a magistrate can lawfully sit in judgment, exercising judicial powers, and enforcing his judgments by process of law, without holding a court. I consider such a court, thus exercising a part of the judicial power of the United States, as an inferior court, and the justice of the peace as the judge of that court. It is unnecessary in this cause to decide the question, whether, as such, he holds his office during good behaviour; but that his compensation shall not be diminished during his continuance in office, seems to follow as a necessary consequence from the provisions of the constitution. It has been contended, that the compensation of a justice of the peace is not within this provision of the constitution, because the act of congress has not appointed the stated times at which it shall be paid. It is true, that the act of congress has not said that the compensation shall be paid on any particular day, and month; but it may, perhaps, be a compliance with the clause of the constitution, which requires that it shall be receivable at stated times, to say that it shall be paid when the service is rendered. And, we are rather to incline to this construction, than to suppose the command of the constitution to have been disobeyed.
If, therefore, the constitution of the United States is obligatory upon congress, when legislating for this district; if a justice of the peace is a judge of an inferior court of the United States; and, if his compensation has once been fixed by law a subsequent law for diminishing that compensation ( a fortiori for abolishing it) cannot affect that justice of the peace during his continuance in office; Page 162 whatever effect it may have upon those justices who have been appointed to office since the passing of the act.
MARSHALL, J. concurred.
KILTY, Ch. J. This is an indictment at common law, against the defendant, a justice of the peace, for having, under colour of his office, exacted and taken an illegal fee, as therein described.
The demurrer admits his being a justice, and the exaction and receipt of the fee, and rests the defence on the legality of such conduct.
The legality of exacting and taking fees, under colour of a public office, must depend on the express authority of law, and, therefore, the question must turn upon the acts which have passed on this subject, as it respects the district of Columbia.
The justices of the peace were allowed expressly to receive fees for their services, by the act of February, 1801, section 11, and by the 4th section of the act of March, 1801, they were, as commissioners, entitled to certain fees and emoluments.
It is possible, that if the 11th section had only provided for the appointment of justices, without speaking of their fees, the 1st section, adopting the laws of the two states, might have had the effect of giving them the fees provided by the laws of Maryland. But an inquiry into this part of the subject is not important, because, as it has been observed in the course of the argument, so much of those two acts as provides for the compensation to the justices, is repealed by the act of May, 1802; and it is not material to determine by which of the sections the provision was made.
The act of 1802, section 8, having positively declared, that this provision was repealed, and having thereby left no power existing to demand the fees before allowed, it remains only to examine into the ground on which the latter act is alleged to be unconstitutional and void.
According to the course which has been pursued by the supreme court, it appears unnecessary to say any thing about the power of a court to examine into the constitutionality of a law, until a case has been made out to justify such an inquiry. But, taking the power for granted, we are to inquire how it is called for in the present instance.
In testing an act of the legislature by the constitution, nothing less than the positive provisions of the latter can be resorted to, and without absolute restriction by the constitution, the legislative power is omnipotent over subjects submitted to it. We must, therefore, reject the idea of judging this act on the principles of a contract, and setting it aside as an infraction of such contract. Page 163 In support of the position, that the act of May, 1802, is unconstitutional and void, the following arguments have been urged:
1. That a justice is a judicial officer.
2. That a justice is a court.
3. That a justice shall receive for his services a compensation, which shall not be diminished during his continuance in office; and that, therefore, taking away his fees, by repealing the act which gave them, is diminishing his compensation, and is contrary to the constitution.
The nature of some of the duties confided to a justice of the peace may make him a judicial officer; and he might even be admitted to be a court, without bringing him within the provisions of the constitution. The first section of the third article speaks of the judicial power of the United States. It declares what courts it shall be vested in, and then provides, that the judges of such courts shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
When we consider this instrument as constituting a general government, and defining, amongst others, its judicial power, we must take it in its most extensive sense, as applying to the whole of the United States, and not to a particular territory.
I, consider, therefore, that the judicial power given to the traverser, as a justice of the peace, is not, in the sense of the constitution, the judicial power of the United States; and that such justice is not such a court as is provided for in the article and section in question. The justice does not, according to that article and section, hold his office during good behaviour; nor can the power of receiving certain fees, which was given by the act of 1801, be strained to mean "receiving at stated times a compensation for his services."
The second section of the third article declares what subjects the judicial power, given by the first section, shall extend to. And by comparing these subjects with those which are cognizable by the justice in the present case, it will confirm the position, that this judicial power is not that of the United States, and is not provided for by this part of the constitution.
Congress, in organising the judiciary according to the constitution, have created a supreme court, and inferior courts. Some of the latter extend over certain circuits composed of different states, and others are confined to the respective states; but in all of them, it is the judicial power of the United States which is carried into effect. Page 164 I consider this judicial power as being different in its object and nature from that which may be the effect of the legislative power given to congress over this territory, or of their power to make rules, c. for such places as may become their property.
In order to show that the restrictions contained in the first section of the third article of the constitution do not extend to a justice in the district of Columbia, it may be necessary to make some inquiry into the principles on which the district is erected.
Without endeavouring to solve all the difficulties which have been mentioned in the course of the argument, I am persuaded that the following positions are correct: — That the district of Columbia, though belonging to the United States, and within their compass, is not, like a state, a component part, and that the provisions of the constitution, which are applicable particularly to the relative situation of the United States and the several states, are not applicable to this district.
That the power of congress to legislate for the district arises from the positive direction of the constitution, in the 8th section of the first article; and it may be here material to attend to the words " exclusive legislation," and to discover their meaning and origin.
By the constitution, the legislative power of congress is confined to certain objects, and leaves to the several states a portion of the legislative power which they before possessed. But it was the intention of the framers of the constitution, to divest the ten miles square of the privileges of a state, and to give to congress the whole and exclusive power of legislation, as well on the subjects which had been left to the states, as on those which had been taken from them and given to the general government — That the ten miles square is not in a situation to become a state without an amendment in the constitution, and therein differs from the other territories belonging to the United States — That the word exclusive meaning only free from the power exercised by the several states, the legislative power to be exercised by congress may still be subject to the general restraints contained in the constitution, though it includes subjects both of a general and local nature. Thus they are restrained from suspending the writ of habeas corpus, unless in the cases allowed; from passing (within and for the district) a bill of attainder, or ex post facto law; from laying therein a capitation tax; from granting therein any title of nobility; from making therein a law respecting the establishment of religion, or abridging the freedom of speech, or of the press; and from quartering soldiers therein, contrary to the third amendment.
But when congress, in exercising exclusive legislation over this territory, enact laws to give or to take away the fees of the justices Page 165 of the peace, such laws cannot be tested by a provision in the constitution, evidently applicable to the judicial power of the whole United States, and containing restrictions which cannot, in their nature, affect the situation of the justices, or the nature of the compensation.
However ingeniously the question has been argued, I cannot feel any doubt in my mind on it. Nor can I perceive any legal or justifiable ground under which the direction of the act of 1802 has been disregarded. I am, therefore, of opinion, that the judgment on the demurrer should be for the United States.
But the judgment of the court is for the defendant.
MARSHALL, Ch. J.[fn*] delivered the opinion of the court as follows: [fn*]172Johnson, Justice, was absent when this opinion was delivered
This is an indictment against the defendant, for taking fees, under colour of his office, as a justice of the peace in the district of Columbia.
A doubt has been suggested respecting the jurisdiction of this court, in appeals on writs of error, from the judgments of the circuit court for that district, in criminal cases; and this question is to be decided before the court can inquire into the merits of the case.
In support of the jurisdiction of the court, the attorney-general has adverted to the words of the constitution, from which he seemed to argue, that as criminal jurisdiction was exercised by the courts of the United States, under the description of, "all cases in law and equity arising under the laws of the United States," and as the appellate jurisdiction of this court, was extended to all enumerated cases, other than those which might be brought on originally, "with such exceptions, and under such regulations, as the congress shall make," that the supreme court possessed appellate jurisdiction in criminal, as well as civil cases, over the judgments of every court, whose decisions it would review, unless there should be some exception or regulation made by congress, which should circumscribe the jurisdiction conferred by the constitution.
This argument would be unanswerable, if the supreme court had been created by law, without describing its jurisdiction. The constitution would then have been the only standard by which its powers could be tested, since there would be clearly no congressional regulation or exception on the subject.
But as the jurisdiction of the court has been described, it has been regulated by congress, and an affirmative description of its powers must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described.
Thus the appellate jurisdiction of this court, from the judgments of the circuit courts, is described affirmatively. No restrictive words are used. Yet it has never been supposed, that a decision of a circuit court could be reviewed, unless the matter in dispute should exceed the value of 2,000 dollars. There are no words in the act restraining the supreme court from taking cognizance of causes under that sum; their jurisdiction is only limited by the legislative declaration, that they may re-examine the decisions of the circuit court, where the matter in dispute exceeds the value of 2,000 dollars.
This court, therefore, will only review those judgments of the circuit court of Columbia, a power to re-examine which, is expressly given by law.
On 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 mentioned 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 dollars, 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.
See the case of the United States v. La Vengeance, 3 Dall. 297, where it seems to be admitted, that in criminal cases the judgment of the inferior court is final.