Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/457

 CH. XXXVIII.] § 1584. In considering the first clause of the third section, declaring, that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as the congress may from time to time ordain and establish," we are naturally led to the inquiry, whether congress possess any discretion, as to the creation of a Supreme Court and inferior courts, in whom the constitutional jurisdiction is to be vested. This was at one time matter of much discussion; and is vital to the existence of the judicial department. If congress possess any discretion on this subject, it is obvious, that the judiciary, as a co-ordinate department of the government, may, at the will of congress, be annihilated, or stripped of all its important jurisdiction; for, if the discretion exists, no one can say in what manner, or at what time, or under what circumstances it may, or ought to be exercised. The whole argument, upon which such an interpretation has been attempted to be maintained, is, that the language of the constitution, "shall be vested," is not imperative, but simply indicates the future tense. This interpretation has been overruled by the Supreme Court, upon solemn deliberation. "The language of the third article," say the court, throughout is manifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative, that congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court, and in such inferior courts, as congress

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