Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/459

 CH. XXXVIII.] legislative power is not absolutely vested? that the words merely refer to some future act, and mean only, that the legislative power may hereafter be vested? The second article declares, that "the executive power shall be vested in a president of the United States of America." Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent, that such a construction, in either case, would be utterly inadmissible. Why, then, is it entitled to a better support in reference to the judicial department?

§ 1588. If, then, it is a duty of congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative, as to one part, is imperative, as to all. If it were otherwise, this anomaly would exist, that congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction, as to all; for the constitution has not singled out any class, on which congress are bound to act in preference to others.

§ 1587. The next consideration is as to the courts, in which the judicial power shall be vested. It is manifest, that a supreme court must be established; but whether it be equally obligatory to establish inferior courts, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that, in some of the enumerated cases, the judicial power could nowhere exist. The supreme court can have original jurisdiction in two classes of cases only, viz. in cases affecting ambassadors, other public ministers and consuls, and in cases, in which a state is a party. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself; and if, in any of the