shall appear best, limited by the terms of the constitution only; and to whatever extent that power may be exercised, or however severe the duty they may think proper to require, the Judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it.

3. That at the same time such courts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another act) any power not in its nature judicial, or, if judicial, not provided for upon the terms the Constitution requires.

4. That whatever doubt may be suggested, whether the power in question is properly of a judicial nature, yet inasmuch as the decision of the court is not made final, but may be at least suspended in its operation by the Secretary at War, if he shall have cause to suspect imposition or mistake; this subjects the decision of the court to a mode of revision which we consider to be unwarranted by the Constitution; for, though Congress may certainly establish, in instances not yet provided for, courts of appellate jurisdiction, yet such courts must consist of judges appointed in the manner the Constitution requires, and holding their offices by no other tenure than that of their good behaviour, by which tenure the office of Secretary at War is not held. And we beg leave to add, with all due deference, that no decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion, or even suspension, by the Legislature itself, in whom no judicial power of any kind appears to be vested, but the important one relative to impeachments.1

The question as to whether the act of Congress conferred upon the Circuit Court a judicial function, and whether the Federal judges could act as commissioners if they could not act as judges, arose in 1792 in Hayburn's case (2 Dallas, 409). It was then, however, not decided by that august tribunal, as it took the question under advisement until the next term. But no decision was ever pronounced, as the sections of the act of 1792 under which action had been taken were in the meantime repealed, and, as the reporter informs us, the legislature at the intermediate session provided in another way for the relief of the pensioners. While it is correct to say, as is often done, that Hayburn's case did not decide the question, it was not left undecided, as it appears from a note by Mr. Chief Justice Taney, appended to the case of United States v. Ferreira (13 Howard, 40), decided in 1851, that the exact question was raised and decided in 1794 by the Supreme Court in the case of United States v. Todd.

An act of Congress was passed in 1793, directing the Secretary of War and the Attorney General to get the opinion of the Supreme Court upon the question, and the court, contrary to subsequent practice, assumed jurisdiction on the theory that the act in question gave it original jurisdiction. An agreed statement of facts was presented, setting forth that on May 3, 1792, one Yale 12 Dallas, 412, Note.

Todd appeared before the Circuit Court, composed of John Jay, Chief Justice, William Cushing, Justice, and Richard Law, District Judge, then sitting in New Haven and acting as commissioners under the act of 1792; that Todd submitted his claim under the act to the court, supporting it by evidence, and that the court delivered the opinion that Todd should be placed upon the pension list. A certificate of the proceedings and opinion of the court was, on May 8, 1792, transmitted to the Secretary of War, who, following the opinion of the court, placed Todd upon the pension list and paid over to him, in accordance with the opinion and on behalf of the United States, the sum of $150 for arrears and $22.91 for pension to be due in September. The United States, in order to test the question, sued Todd as defendant to recover payment of the sum of $172.91, it being agreed in this remarkable proceeding that if the judges of the Circuit Court "sitting as Commissioners, and not as Powers of a Circuit Court," had power to entertain and decide the case, judgment should Strictly be given for the defendant; whereas, if the Circuit Court, sitting as commissioners, was not authorized to have taken jurisdiction and to adjudge the original case, judgment should be entered against Todd for the sum of $172.91 and six cents costs. Todd appeared by distinguished counsel and the case was argued by the Attorney General on behalf of the United States. In the following passage from the note to United States v. Ferreira, giving the facts and the decision in the Todd case, Mr. Chief Justice Taney not only states the decision of the court but comments upon it:

Chief Justice Jay and Justice Cushing, Wilson, Blair, and Paterson, were present at the decision. No opinion was filed stating the grounds of the decision. Nor is any dissent from the judgment entered on the record. It would seem, therefore, to have been unanimous, and that Chief Justice Jay and Justice Cushing became satisfied, on further reflection, that the power given in the act of 1792 to the Circuit Court as a court, could not be construed to give it to the judges out of court as commissioners. It must be admitted that the justice of the claims and the meritorious character of the claimants would appear to have exercised some influence on their judgments in the first instance, and to have led them to give a construction to the law which its language would hardly justify upon the most liberal rules of interpretation.

The result of the opinions expressed by the judges of the Supreme Court of that day in the note to Hayburn's case, and in the case of the United States v. Todd, is this:

1. That the power proposed to be conferred on the Circuit Courts of the United States by the act of 1792 was not judicial power within the meaning of the Constitution, and was, therefore, unconstitutional, and could not lawfully be exercised by the courts.

2. That as the act of Congress intended to confer the power on the courts as a judicial function, it could not be construed as an authority to the judges composing the court to exercise the power out of court in the character of commissioners.1

13 Howard, 52-3, Note.

Court

Judicial

Further Distinction between Judicial

and Other Powers

It thus appears that the Supreme Court decided, within a very few years after its institution, as it has since held, that the Federal courts could only exercise judicial power; and the decision is all the more noteworthy, as the case was one in which the sympathy of the judges was deeply enlisted and in which some of them had acted as individuals, although they felt that they could not act officially as judges.

Two further cases, dealing with the general attributes of judicial as distinguished from legislative or executive power, deserve examination in this connection, in each of which the opinion was prepared by Chief Justice Taney, who worthily wore the mantle of the great Chief Justice. The first case to be considered is that of United States v. Ferreira, decided in 1851, to which United States v. Todd was appended as a note. This case grew out of the treaty of February 22, 1819, between the United States and Spain, by which the latter country ceded Florida to the United States, and two acts of Congress were passed in order to give effect to the following stipulation contained in that treaty:

The United States shall cause satisfaction to be made for the injuries, if any, which by process of law shall be established to have been suffered by the Spanish officers and individual Spanish inhabitants by the late operations of the American army in Florida.1

By three acts of Congress of 1823, 1834 and 1849, the judge of the territorial court of Florida, and later the judge of the District Court of the United States for the northern district of Florida, was directed to receive, examine and adjudge all cases and claims for losses and to report his decisions in favor of the claimants, together with the evidence upon which they were based, to the Secretary of the Treasury, who was authorized to pay to the claimants the sum awarded to them, "on being satisfied that the same is just and equitable, within the provisions of the treaty."

It will be observed that the facts of the case bring it within the principle laid down in United States v. Todd, which has just been considered, a fact not lost upon the Chief Justice, who referred to Hayburn's case and the opinion of the judges who had allowed themselves to act under the law of Congress relating to pensions. But the court evidently considered the questions involved of such importance as to justify an examination of the case upon its merits without regard to precedent.

In the first place the Chief Justice, on behalf of the court, analyzed the acts which the judge was obliged to perform under the laws of Congress, and, after having done so, indulged in comment as valuable today as it was then. Thus:

13 Howard, 40.

It is manifest that this power to decide upon the validity of these claims, is not conferred on them as a judicial function, to be exercised in the ordinary forms of a court of justice. For there is to be no suit; no parties in the legal acceptance of the term, are to be made no process to issue; and no one is authorized to appear on behalf of the United States, or to summon witnesses in the case. The proceeding is altogether ex parte; and all that the judge is required to do, is to receive the claim when the party presents it, and to adjust it upon such evidence as he may have before him, or be able himself to obtain. But neither the evidence nor his award, are to be filed in the court in which he presides, nor recorded there; but he is required to transmit, both the decision and the evidence upon which he decided, to the Secretary of the Treasury; and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise. It is to be a debt from the United States upon the decision of the Secretary, but not upon that of the judge.1

Upon these facts the Chief Justice thus commented:

It is too evident for argument on the subject, that such a tribunal is not a judicial one, and that the act of Congress did not intend to make it one. The authority conferred on the respective judges was nothing more than that of a commissioner to adjust certain claims against the United States; and the office of judges, and their respective jurisdictions, are referred to in the law, merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends. The decision is not the judgment of a court of justice. It is the award of a commissioner. The act of 1834 calls it an award. And an appeal to this court from such a decision, by such an authority from the judgment of a court of record, would be an anomaly in the history of jurisprudence. An appeal might as well have been taken from the awards of the board of commissioners, under the Mexican treaty, which were recently sitting in this city.2

The Chief Justice was, of course, aware that the act was judicial, as opposed to a legislative, executive or ministerial act, as its successful performance involved legal principles and judicial discretion. But he was of the opinion that it was not an exercise of the judicial power of the United States, as that term is used in the Constitution, and as judicial power is to be exercised in courts organized in pursuance of the Constitution. Indeed, he himself said:

The powers conferred by these acts of Congress upon the judge as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty; or special powers to inquire into or to decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a commissioner. But is

not judicial in either case, in the sense in which judicial power is granted by the Constitution to the Courts of the United States.1

The second case to which reference has been made is that of Gordon v. United States (2 Wallace, 561), decided by the Supreme Court in 1864. Mr. Chief Justice Taney had prepared a very careful opinion on the question of jurisdiction involved in this case, but he died before the decision was announced, and the opinion which he had written and communicated to his brethren appears to have been mislaid by them; but a copy, later found among his papers, was, by direction of the court, printed as an appendix to 117 U. S. Reports, 696–706.2 As Mr. Chief Justice Taney's opinion is on a subject with which he was peculiarly familiar, and inasmuch as it is commonly referred to as the authority on the subject, it seems advisable to consider the case at some length.

The plaintiff, Gordon, administrator of one Fisher, presented a petition in the Court of Claims of the United States for damages done to Fisher by troops of the United States in the war of 1812 with Great Britain. The Court of Claims decided against the claim and Gordon appealed to the Supreme Court. The question was similar to but not identical with that in the Ferreira case, as the judgment of the court did not determine the case finally but made the payment depend upon the inclusion of the claim in the Secretary's estimate and upon the appropriation of the estimated amount by the Congress. Under an act of Congress, an appeal could be taken to the Supreme Court from the Court of Claims, but Mr. Chief Justice Taney in his opinion, and the court in its judgment, held that an appeal would not lie from the Court of Claims in this instance, because that court had not exercised judicial power in the sense of the Constitution, and its opinion, therefore, was more in the nature of an award than a judgment upon which an appeal would lie to the Supreme Court; because, in either event, the Court of Claims or the Supreme Court would merely certify its opinion to the executive officer, whose action, not the opinion of either court, concluded the matter.

113 Howard, 48.

"This cause was submitted on the 18th December, 1863. On the 4th of April, 1864, the court ordered it to be argued on the second day of the following December Term. Mr. Chief Justice Taney had prepared an opinion expressing his views upon the question of jurisdiction. This he placed in the hands of the clerk in vacation, to be delivered to the judges on their reassembling in December. Before the judges met he died. The clerk complied with his request. It is the recollection of the surviving members of the court, that this paper was carefully considered by the members of the court in reaching the conclusion reported in 2 Wall. 561; and that it was proposed to make it the basis of the opinion, which, it appears by the report of the case, was to be subsequently prepared. The paper was not restored to the custody of the clerk, nor was the proposed opinion ever prepared. At the suggestion of the surviving members of the court, the reporter made efforts to find the missing paper, and, having succeeded in doing so, now prints it with their assent. (117 U. S., Appendix, 697.)