on of what is the force of the word "shall." In Martin _v._
Hunter's Lessee,[599] Justice Story declared obiter that it was
imperative upon Congress to create inferior federal courts and vest in
them all the jurisdiction they were capable of receiving. This dictum
was criticized by Justice Johnson in his dissent, in which he contended
that the word "shall" was used "in the future sense," and had "nothing
imperative in it."[600] And for that matter in another portion of his
opinion Justice Story expressly recognized that Congress may create
inferior courts and "parcel out such jurisdiction among such courts,
from time to time at their own pleasure";[601] and in his Commentaries
he took a broad view of the power of Congress to regulate
jurisdiction.[602]

PLENARY POWER OF CONGRESS OVER JURISDICTION

Neither legislative construction nor judicial interpretation has
sustained Justice Story's position in Martin _v._ Hunter's Lessee. The
Judiciary Act of 1789, which was a contemporaneous interpretation of the
Constitution by the Congress, rests on the assumption of a broad
discretion on the part of Congress to create courts and to grant
jurisdiction to and withhold it from them. This act conferred original
jurisdiction upon the district and circuit courts in certain cases, but
by no means all they were capable of receiving. Thus suits at the common
law to which the United States was a party were limited by the amount
in controversy. Except for offenses against the United States, seizures
and forfeitures made under the impost, navigation, or trade laws of the
United States, and suits by aliens under International Law or treaties,
that whole group of cases involving the Constitution, laws, and treaties
of the United States was withheld from the jurisdiction of the district
and circuit courts,[603] with the result that original jurisdiction in
these cases was exercised by the State courts subject to appeal to the
Supreme Court under section 25. Jurisdiction was vested in the district
courts over admiralty and maritime matters and in the circuit courts
over suits between citizens of different States where the amount
exceeded $500, or suits to which an alien was a party.[604] The act of
1789 empowered the courts to issue writs, to require parties to produce
testimony, to punish contempts, to make rules, and to grant stays of
execution.[605] Finally, equity jurisdiction was limited to those cases
where a "plain, adequate, and com