Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/449

 CH. XXXVIII.] advancement of justice, and preferment of deserving men. If a forester, by patent for his life, is made justice in Eyre of the same forest, hac vice, the forestership is become void; for these offices are incompatible, because the forester is under the correction of the justice in Eyre, and he cannot judge himself. Upon a mandamus to restore one to the place of town-clerk, it was returned, that he was elected mayor and sworn, and, therefore, they chose another town-clerk; and the court were strong of opinion, that the offices were incompatible, because of the subordination. A coroner, made a sheriff, ceases to be a coroner; so a parson, made a bishop, and a judge of the Common Pleas, made a judge of the King's Bench," &c.

"'Other authorities on this point might be added; but the reasons, on which they rest, seem to us to require little elucidation, or support.

"'There is in the act another deviation from the constitution, which we think it incumbent on us to mention.

"'The second section of the second article of the constitution declares, that the president shall nominate, and by and with the advice and consent of the senate, "shall appoint judges of the Supreme Court, and all other officers of the United States, whose appointments are not therein otherwise provided for."

"'The constitution not having otherwise provided for the appointment of the judges of the inferior courts, we conceive, that the appointment of some of them, viz. of the Circuit Courts, by an act of the legislature, is a departure from the constitution, and an exercise of powers, which constitutionally and exclusively belong to the president and senate.

"'We should proceed, sir, to take notice of certain defects in the act relative to expediency, which we think merit the consideration of the congress. But, as these are doubtless among the objects of the late reference, made by the house of representatives to the attorney-general, we think it most proper to forbear making any remarks on this subject at present.

"'We have the honour to be most respectfully,

"'Sir, your obedient and humble servants.

"'The President of the United States.'" adopted, "that the national legislature be empowered to appoint inferior tribunals," by the vote of seven states against three, one being divided; and ultimately this proposition received the unanimous approbation of the convention. 56