The facts as stated in the petition are as follows: •

In 1838 the office of Judge of the Orphans’ Court of the County of Washington, District of Columbia, was held by Samuel Chase, who, by reason of his age and infirmities, became disqualified from performing the duties of the office. That Congress, on the 25th of May, 1838,* provided for the appointment of au additional Judge of the Orphans’ Court; *38that under this act the President appointed and commissioned N. P. Causin to the office created by said act; that Samuel Chase since died. The petitioners hold that the office of the Judge of said Orphans’ Court has become vacant, and show that the public good requires that the question thus presented should be settled by the court.

The following rule was served on the respondent:

That you show cause why a writ of quo warranto shall not be issued directed to Nathaniel P. Causin, commanding him to be and appear before this court, then and there to exhibit the right and authority of which he exercises the powers, functions, and authority of the Judge of said Orphans’ Court, and submit to such order or decree and judgment as the court shall deem right and proper in the premises.

The respondent answered that there is no tenure in the act of February 27, 1801, authorizing the appointment of a judge of said court, by which the judge shall hold his office, but the tenure of said office has always been understood from that time hitherto to be during good behavior, and the tenure of which is prescribed by the Constitution of the United States, Art. 3, Sec. 1, and the respondent relied on such contemporaneous exposition of the act organizing said court as well as on the uniform subsequent interpretation thereof for forty years, for the purpose of showing that the office is held under the Constitution by the tenure prescribed by said Sec. 1, Art. 3, of the Constitution of the United States.

The counsel for the petitioners contended that under the act of 1888 the tenure of office was limited to the life of Judge Chase, and that his decease caused a vacancy in the office of Judge of the Orphans’ Court.

The court, without an ai’gument from the counsel for the respondent, decided—

That there was no vacancy in the judgeship, and that the appointment of Nathaniel P. Causin as Judge of the Orphans’ Court of the County of Washington, District of Columbia, was during good behavior, or, in other words, for life.