George Washington Papers

To George Washington from the United States Circuit Court Judges for Pennsylvania, 18 April 1792

From the United States Circuit Court Judges for Pennsylvania

Philadelphia, the 18th April, 1792.


To you it officially belongs to “take care that the Laws” of the United States “be faithfully executed.” Before you, therefore, we think it our duty to lay the sentiments, which, on a late painful occasion, governed us with regard to an Act passed by the Legilature of the Union.

The People of the United States have vested in Congress all legislative Powers “granted in the constitution.”

They have vested in one supreme Court and in such Inferior Courts as the Congress shall establish “the judicial Power of the United States.”

It is worthy of remark, that, in Congress, the whole legislative Power of the United States is not vested. An important part of that power was exercised by the People themselves, when they “ordained and established the Constitution.”

“This Constitution” is “the supreme Law of the Land.”

This Supreme Law “all judicial Officers of the United States are bound by oath, or affirmation, to support.”

It is a Principle important to Freedom, that, in Government, the judicial should be distinct from, and independent of the legislative Department.

To this important Principle the people of the United States, in forming their Constitution, have manifested the highest Regard.

They have placed their judicial Power, not in Congress, but in “Courts.” They have ordained that the “Judges” of those Courts “shall hold their Offices during good Behaviour,” and that, “during their continuance in Office, their Salaries shall not be diminished.”

Congress have lately passed an Act “to regulate,” among other Things, “the claims to invalid Pensions.”

Upon due consideration, we have been unanimously of opinion, that, under this act, the Circuit Court held for the Pennsylvania District could not proceed.1

1. Because the Business directed by this act is not of a judicial nature: It forms no Part of the Power vested, by the Constitution, in the Courts of the United States. The Circuit Court must, consequently, have proceeded without constitutional authority.

2. Because, if, upon that Business, the Court had proceeded, its Judgments—for its Opinions are its Judgments—might, under the same Act, have been revised and controuled by the Legislature and by an Officer in the executive Department. Such revision and controul we deemed radically inconsistent with the Independence of that judicial Power, which is vested in the Courts, and consequently, with that important Principle which is so strictly observed by the Constitution of the United States.

These, Sir, are the Reasons of our conduct. Be assured, that though it became necessary it was far from being pleasant. To be obliged to act contrary either to the obvious Directions of Congress or to a constitutional Principle, in our Judgment equally obvious, excited Feelings in us, which we hope never to experience again.2 We have the Honour to be, with the most perfect consideration and Respect, Sir, Your most obedient and very humble Servants,

James Wilson

John Blair

Richard Peters

Copy, DNA: RG 46, Second Congress, 1791–1793, Records of Legislative Proceedings, President’s Messages; LB, DLC:GW.

For the background to the protest of the federal judges against the Invalid Pensions Act, see Caleb Brewster to GW, 15 Mar. 1792, n.4, the U.S. Circuit Court Judges for New York to GW, 10 April, enclosure, and GW to the U.S. Senate and House of Representatives, 16 April.

1On 13 April, William Haburn (Haburne), a Revolutionary War veteran from Virginia, presented a memorial to the House of Representatives “setting forth that he had applied yesterday to the Judges of the Circuit Court in this city to be put on the pension list pursuant to a late law of Congress; and that the Court having refused to take cognizance of his case, he was obliged to apply to Congress for relief. . . . This being the first instance in which a court of justice had declared a law of Congress to be unconstitutional, the novelty of the case produced a variety of opinions with respect to the measures to be taken on the occasion. At length a committee of five was appointed to inquire into the facts contained in the memorial, and to report thereon” (Annals of Congress description begins Joseph Gales, Sr., comp. The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature. 42 vols. Washington, D.C., 1834–56. description ends , 2d Cong., 1st sess., 556–57). On 18 April the committee’s report was read and tabled.

2GW laid this document before Congress on 21 April.

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