In United States v. More (1805) 7 U.S. 159, Congress had enacted a system of fees for compensating justices of the peace, however, Congress thereafter abolished the fees.
Justice of the Peace More continued to collect the fees and the government brought an indictment against him.
The Circuit Court for the District of Columbia with presiding Justice, Chief Justice John Marshall, held that the salary in question was subject to the Compensation Clause.
In that case, Congress had enacted and later abolished a system of fees compensating justices of the peace in the District of Columbia (then Article III positions).
After Congress abolished the system, More was indicted for continuing to collect the fees.
The Circuit Court held that the abolishment of the fee system was an unconstitutional diminishment of judicial compensation. (See id. at 161 n. 2.)
It was held that the Court was without jurisdiction, under the law as it then was, to review the final judgment of the Circuit Court of the District of Columbia in a criminal case.
It was suggested at the bar, in that case, that the Court had, in a previous case, exercised appellate jurisdiction in a criminal case. Chief Justice Marshall met that suggestion by saying:
"No question was made in that case as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case."
Chief Justice Marshall's stated that courts do not consider themselves bound by the exercise of jurisdiction where "no question was made" and the issue "passed sub silentio," - a fortiori by the failure to exercise it.