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2 Dallas


COURT of the United States.


hauds of the marfhall, 'till the right to it is fairly decided ; and 1792.
fo avoid the rifque of putting the true owner to a fuit, for he to-v-%J
purpofe of recoverifg it back ?
For my part, I think that the money, Ihould remain in
the law has adjudged to whom
Citation: 2
U.S. of
409the law, tillI -am.
copteot, that the injun&lon
it belongs'; and, -therefore,
An Injuniion granted.*



rT HIS was a motion for a mandamus to be dire&ed to the

Circuit.Court for the diftri& of Penlyylvhnia, command1

ing the faid court tb proceed in a certain petition of Win. HayZarn, who had applied to be paton the penfion lift of the United
States, as an invalid penfioner.
The principal cafe arore upoo the a& of Congrefs paffed the
March, 1792.
The Attorney General (Randalph) who made the motion
mandamus, .having premifed that it was done ex ofo
for the (
from any particular perfon, but
an application
Fri Jundo,10without
with a view to procure the execution of an a&ft of Congrnfs
particularly interefting to a meritorious and unfortunate clafs
they entertained
CouRT declared
-- Yourofuse
of this
your acceptance
doubi upon his right, under fuch circumftances, and in a
of HeinOnline's
and Conditions
of the
ex o#4o ; and
to proceed'
cafe of this kind,
agreement available at
the right. The Attorhey General, accordingly, -entered into
an: elaborate defcription of the powers -and duties of his
-- The office:
search text of this PDF is generated from
being divided in opinion on that queftion,
the motion, made ex ofciv, v,as not allowed.
The Attorney General then changed the ground of his interpofition, decliring it to be at the inftance, and on behalf of Hayhurn, a party interefted; and he entered into the merits of the
cafe, upon the a& of Congrefs, and the refufalof the Judges to
carry it into effe&THE CouE.T obferved, that 'they would hold the motion
under adviferfient, until the next term ; but no decifion
was ever Pronounced, as the Levi lature, at an in intermediate
See the tame cafe, post. & 3 vol ,. as well on a motion to dilfolve
the Injun-61ion,.as on a trial of the merits, upon a feigned iffue,



ruled and adjudged in the-

q792. ate feffion; provided, in another way, for the relief of th

t" See an a& patled the 28th Feb.

7 9 3.- As the reafonq affigned

by the Judges, for declining to execute the firft aa of Congrefs, in.

volve a great Conftitutional quefltin, it will not be thought improper
to fubjoin them, in illuftration of Hayburn's cafe.
The Circuit court for the diriri&t of New-York (confifting of JAY,
Chiefyustice, CusHiNG, Justice, and D-uA&- Diftri& Jcldge) proceed.
e I on the 5 th of April, 1791, to take into confideration the a6 of
Congrefs entitled "An act to provide for the fettlement.of the claims
" of widows and orphans barred by the limitations heretofore eflablifled, and to regulate the claims to invalid penfions ;" and were,
thereupon, unanimoufly, of opinion and agreed,
" That by the Conflitution of the United States) the government
thereof is divided into three diflinct and independent branches, and
that it is the duty of each t6 abilain from, and to oppofe, encroachments on either.
." That neither the Legislative nor the Executive branches, can
conftitutionBlly affign to the J7udicialany duties,, but fuch as are properly judicial, and to be performed in a judicial manner.
C4That the duties afligned to the Circuit courts, by this act, are
not of that defcription and that the act itlelf does not appear to contemplate them as fuch; i. as much as it fubjects the decifions of thefe
courts, made purfuant to thofe duties, firil to the confideration and
fulpetifion of the Secretary at War,, and then to the revifion of the
Legiflature : whereas by the Conifitution, neither the Secretary, at
Wrar, nor any other Executive officer, nor 'even the Legilature, are
authorized to fit as a court of errors on the judicial acts or opinions
of this court.
" As, therefore, the burinefs aligned to this court, by the act, is
not'judicial, nor directed to be performed judicially, the act can only
be conrdered as appointing commiffioners for the purpefes mentioned in it, by official inflead of personal defcriptions.
,, That the Judges of this court regard themfelvss -as being the
commiffioners defignated by the act, and therefore as being at liberty
to accept or deciline that office.
" That as the objects'6f this act are exceedingly benevolent, and
do real honor to the humanity and jullice of Congrefs; and as the

Judges delire to manifeft, cn all proper occafions, and in every proper

manner, their high refpect for the National Legiflature, they willexecute this act in the capacity of comniffioners.
" That as the Legiflature have a right to ixtend the feffion of this
court for any term, -which they maythink proper by law to affign, the
term of five days, as directed by this act, ought to be punctually
" That the judges of this court will,, as ufual,, during the fefliot
thereof, adjourn-the court from day to day, or oiher flhort periods, as
(ircumPfances may render proper, and thatthey will, regularly, between
the adjournments, proceed as commiffioners to xccuto the buflnels of
ihis ad in the fame court room, cr chamber."


United "tatex.


HE Attorney Genera! having moved for information, re-

lative to the fyftem of pratice by which the Attornies

and Counfellors of this courf -haUregulate themfelves, and of
The Circuit court for the diftri& of Pennfylvania, (confifling of
Yzutices, and PETERs, DiftriE Judge) made the
following rfeprefentation, in a letter jointly addreffed to the Prefident
of the United States, on the iSth cf April, 1792.
" To you it officially belongs to "c take care that the laws" of the
United States ' be faithfully executed." Beforeyou, therefore, we
think it our duty to lay the fentiments, which, on a late painful occafion,. governed us with regard to an a6 pafted by tke legiflature of
the union.
" The people of the United States have veiled in Congref's all
legislative powers " granted in the conflitution."
" They have refled in one Supreme court, and in fuch inferior
courts as the Congrefs hahl. eftabliflh, " the judicial power 'of the
United States,"
" It is worthy of" remark, that -in Congrefs 'the bole legiflative
power of the United States is not velied. An important part of that
power was exercifed by the people themfelves, when they " ordained
and ellablifhed the Conflitution."
" This Conflitution is " the Supreme Law of the Land."
fupreme law " all judicial officers of the United States are bound,
by oath or affirmation, to frpport."
" It is a principle important to freedom, that in government, the
judicial fliould. be diftint from, and -independent of, the lqillativc department. To this important principle the people of the United
States, in forming their Conlitution, have manifefled the highefiregard.
" They have placed their judicial poker not in Congrefs, but in
courts." They have. ordained that the "Judges of thofe courtsfhall hold their offices during good behaviour," and that " during
their continuance in office, their falaries flall not be diminillied."
" Ccngrefs have lately paffed an a&, to regulate, among other
things, " the claims to invalid penfions."
" Upon due confideration, we have been unanimoufly of opinion,
that, under this a&, the Circuit court held for. the Pennfylvania dil.
tri& could not proceed;
" 1ft. Becaufe the bufinefs direaedl by this a& is not of a judicial
nature. It forms no part of the power vcled by the Coi.. itution in
the courts of the United States; the Circuit court mul, confequenty,have proceeded -withoutconflitutionpauthority.
" 2d. Becaufe, if, upon that buflnefs, the court had proceeded, it
judgments (for i.sopinions are its judgments) might, under the fame
a6, have been reviled and controuled by the legitlatufe, and by an ofSuch revifion and eontroul we
ficer in the executive department.
deemed radically inconfillent with the independence of that judicial.
power which isvefled in thecorts ; and, confequently, with that ;b
WILSoN, and BLr. ,



C4s s ruled and adjudged in the

1792. the place in which rules in caufes here depending fhall be obtained, THE CHIEF JUSTICE, at a fubfequent day, tated, that
portant principle which is fo ftrialy obferved by the Conflitution of
the United States.
" There, Sir, are the reafons of our condu&.
Be aflured that,
though it became neceffary, it was far from being pleafaut. To be
obliged to ac contrary, either to the obv;ous dire&ions of Congrefs,
or to a contlitutional principle, in our judgment equaliy obvious, excited feelings in us, which we hope never to experience again."
The Circuit court for the diftri& of North-Carolina, tconfifling of
IREDIELL, )Justice, and STGiEAvEs, Difiria J'udge) made the following reprefentatioN in a letter j6intly addreffed to the Prefident of the
United States, on the 8th of June, 1792.
4 We, the judges now attending at the Circuit court of the United States for the difltri of North Carolina, conceive it our duty to
lay before you fome important obfervations which have occurred to us
in the confideration of an a& of Congrefs lately pafred, entitled "an
a& to provide for the fettlement of the claims of widows and orphans
barred by the limitations heretofore eflablifhaed, and to regulate the
claims to invalid penfions.
'c We beg leave to premife, that it is as much ourinclination, as it
is. our duty, to receive with all poffible refpe& every a& of the Legiflature, and that we never can find ourfelves in a more painful fituation than to be obliged to obje& to. the execution of any, more efpe.
cially to the execution of one founded on the pureft principles of humanity and juflice, which the a& in queftion undoubtedjy is. But,
howev'er lamentable a difference in opinion really. may be, or mith
-whatever difficulty we may have formed an opinion, we are under
the indifpenfable neceflity of a&ing according to the beft ditates of
our own judgment, after duly weighing very confideration that can
occur to us ; which we have done on the prefent occafion.
" The extreme importance of the cafe, and our defire of being explicit beyond the danger of being mifunderftood, will, we hope, juf.
tify us in flating our obfervations in a fyflematic manner. We
therefore, Sir, Jubmit to you the following,6 z. That the Legiflative, Executive, and Judicial departments,
are each formed in a feparate and independent manner ; 'and that the
ultimate Dafis of each is the Confltitution only, within the limits of
vbilch each department can alone juflify any at t of authority.
' 2. Thatthe Legiflature, among other important powers, unqueftionably poffefs that of efltablilbing courts in fuch a manneras totheir
vifdom Ihall appear beft, limited by the terms of the conflitution only; and to whatever extent that power may be exercifed, or however
levere the duty they may think proper to require, the Judges, when
appointed in virtue of any fuch ellablifhment, owe implicit and unreferved obedience to it.
"3. That at the fame time fuch courts cannot be warranted, as we
conceive, by virtue of that part of the Conftitution delegating 7udicialpover, for the exercife, of which- any act of the legiflature is
provided, in eercifing (oven under the authority of another art)

SUPREME'COURT Of the United States.

THE CouRT confiders the praffice of the courts of King's 1792.

Bench and Cbancery in England, as affording outlines for the tY..J

any power not in its nture judicial, or, ifjudicial, not provided for
upon the terms the Conflitution requires.
"4. That whatever doubt may be fuggefled, whether the power in
queftion is properly of a judicial nature, yet inafmuch as the derifion
of the court is not made filal, but may leall fufpended in its
operation by the Secretary at War, if he fhall have caufe to fufpect
impofition or miflake ; this fubjects the decifion of the court to a
mode of revifion which we confider to be unwarranted by the Conilitution ; for, though Congrefs may certainly efthlifli, in inflances not
yet provided for, courts of appellate jurifdiction, yet fuch courts mull
confift of judges appointed in the manner the Conflitution reqLires,
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 deci.
fion of any court of the United States" can, under any circumflaices3
in cur opinion, agreeable to the Con'litution, be liable to a reverfion, or
even fufpenfion, by the Legiflature itfelf, in whom no judicial power
of any kind appears to be veled, but the important one relative'to
"' Thefe, fir, are our reafons for being of opinion, as we are at preent, that this Circuit court cannot be juftified in the execution of
that part of the act, which requires it to examine and rep.rt an opinion
on the unfortunate cafes of officers and foidiers difabled in the fervice
of the United States. The part of the act requiring the court to it
five days, for the p~irpoie of receiving applications from fuch perfons,
we fhall deem it our duty to comply with; for,.whether in our opi.
nion fuch purpofe can or cannot be anfwered, it is, as we conceive, our
indifpenfable duty to keep open any court of which we have the honor
to le judges, as long as Congrefs fhall direct.
" The high refpect we entertain for the Legiflature, our feelings
as men for perfons, whofe fituation requires the earliefl, as well as the
moft effectual relief, and our fincere defire to promote, whether officially or otherwife, the jaft and benevolent views of Congrefi, fo confpicuous on th. prefent as well as on many other occafions, have indu-.
ced us to reflect, whether we could be juflifiedin acting, under this act,
perfonally in the character of commiffioners during the tIffion of a
court ; and could we be fatisged that we had authority to do fo, we
would cheerfully devote fuch part of our time-as might be neceTarir
for the performance of the fervice. But we confefs we have great
doubts on this head. The power-appears to be given to the court onlye and not to the Judges of it; and as the Secretary at War has not
a difcretion in all inflances, but only in thofe where he has caufe to
fufpect impofition or millake, to with-hold a perfon recommended by'
the court from being named on*the penfion li[t, it would be neceffary
for us to be well perlfaded we poffetl'ed fuch an authority, before we
exercifed apower, which might be a means of drawing money out of
the public treafury as effectually as an exprefs appropriation by law.
do not mcan, however, to precltde ourfelves from a very dehbe-


CAtSEs ruled and adjudged, in the.

1792. praffice of this court; and that they will, from time to time,
:.a... make fuch alterations therein, as circumftances may render ne-

cefT ry
rate confideratibn, whetber- we can be warrantedl in executing thepurpofes ofthe act in that manner, in cafe an application fhould be made..
9 No application has yet been.made to the court, or to on ifelves
individually, and therefore we have had fome doubts as to the propriety of giving an opinion in a cafe which bas not yet come regularly
and judicially before us. None can be more fenfible than.we are of the
neceflity of judges being-in general extremely cautious in not intimating an opini6n in any cafe -extra-judicially, becauffe we well know how
liable thd beft minds are, notwithftanding their utmoft care, to a bias,
which may arife from a pre-conceived opinion, even unguardedly,
much more deliberately, given : But in the prefent inflance, as many
unfortunate and meritorious individuals, whom Congrefs have jufly
thought proper objects of immediate relief, may fuffer great diftref;
even by a-fhort delay, and may be utterly ruined by a long one, we determined at all everits to make our fentiments known s early as poffible, confiderinj this as a cafe which muft be deemed an exception
to the general rule, upon every principle of humanity and jufice;
refolving however, that fo far as we are concerned individually, in
cafe an application fhould be made, we will moft attentively hear
it ; and if we can be convinced, this opinion is a wrong one, we
Thall not hefitate to act accordingly, being as far from the weakmefs of fuppofing that there is any reproach in having committed
an error, to which the greateft and belt men are fometimes liable,
as we faould be from fo low a fenfe of duty,, as to think it would
aot be the higheft and moft deferved reproach that could be beflowed on any men (much more on Judges) that they were capable, from any motive, of perreering againrf conviction, in appa.
rently maintaining an pinion, which they really thought to. Lerroneous."