From James Iredell and John Sitgreaves
Newbern, North Carolina, June 8th 1792.
We the Judges now attending at the Circuit Court of the United States for the District of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of Congress lately passed, entitled, “An Act to provide for the settlement of the claims of widows and Orphans barred by the limitations heretofore established, and to regulate the Claims to Invalid Pensions.”1
We beg leave to premise, that it is as much our inclination as it is our duty, to receive with all possible respect every act of the Legislature, and that we never can find ourselves in a more painful situation than to be obliged to object to the execution of any, more especially to the execution of one founded on the principles of humanity and justice, which the Act in question undoubtedly is. But however lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best dictates of our own judgement, after duly weighing every consideration that can occur to us, which we have done on the present occasion.
The extreme importance of the case, and our desire of being explicit, beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner.
We therefore, Sir, submit to you the following.
1. That the Legislative, Executive and Judicial Departments are each formed in a seperate and independent manner, and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority.
2. That the Legislature, among other important powers, unquestionably possess that of establishing Courts in such a manner as to their wisdom 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.2
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 of 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;3 for tho’ Congress may certainly establish, in instances not yet provided for, Courts of appellat 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 the Secretary of War is not held, and we beg leave to add, with all due difference, 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 revision 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.
These, Sir, are our reasons for being of opinion as we are at present, that this Circuit Court in the execution of that part of the Act which requires it to exercise and report an opinion on the unfortunate cases of Officers and Soldiers disabled in the service of the United States. The part of the act requiring the Court to sit five days for the purpose of receiving applications from such persons we shall deem it our duty to comply with, for whether in our opinion such purpose can or cannot be answered, it is we conceive an indispensable duty to keep open any Court of which we have the honor to be Judges, as long as Congress shall direct.4
The high respect we entertain for the Legislature, our feelings as men for persons whose situation requires the earliest as well as the most effectual relief, and our sincere desire to promote, whether Officially or otherwise, the just and benevolent views of Congress so conspicuous on the present as well as on many other occasions, have induced us to reflect whether we could be justified in acting under this act personally in the Character of Commissioners during the Session of a Court; and could we be satisfied that we had authority to do so we would chearfully devote such part of our time as might be necessary for the performance of the service. But we confess we have great doubts on this head. The power appears to be given to the Court only, and not to the Judges of it;5 and as the Secretary at War has not a discretion in all instances, but only in those where he has cause to suspect mistake or imposition, to with-hold a person recommended by the Court from being named on the Pension list; it would be necessary for us to be well persuaded we possessed such an authority before we exercised a power which might be a means of drawing money out of the public Treasury, as effectually as an express appropriation by law[.] We do not mean, however, to preclude ourselves from every deliberate consideration whether we can be warranted in executing the purposes of the Act in case an application should be made.
No application has yet been made to the Court or to ourselves individually, and therefore we have had some doubts as to the propriety of giving an opinion in a case which has not yet come regularly and judicially before us. None can be made more sensible than we are of the necessity of Judges being in general extremely cautious of not intimating an opinion in any case extra-judicially, because we well know how liable the best minds are, notwithstanding their utmost care, to a bias which may arise from a preconceived opinion, even unguardedly, much more deliberately given: But in the present instance, as many unfortunate and meritorious individuals whom Congress have justly thought proper objects of immediate relief, may suffer very great distress even by a short delay, and may be utterly ruined by a long one, we determined at all events to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule upon every principle of humanity and justice; resolving however, that so far as we are concerned individually, in case an Application should be made, we will most attentively hear it, and if we can be convinced this opinion is a wrong one we shall not hesitate to act accordingly, being as far from the weakness of supposing that there is any reproach in having committed an error, to which the purest and best men are sometimes liable, as we should be from so low a sense of duty as to think it would not be the highest and most deserved reproach that could be bestowed on any men (much more Judges) that they were capable, from any motive, of persevering against conviction in apparently maintaining an opinion which they really thought to be erroneous.
We take the liberty to request, Sir, that you will be pleased to lay this letter before the Legislature of the United States at their next Session6—and Have the honor to be &c.
James Iredell—one of the Associate Judges of the Supreme Court of the U.S.
John Sitgreaves—Judge of the U.S. for the North Carolina Dist.
LB, DLC:GW; copy, Nc-Ar: James Iredell, Sr., Papers.
1. For more information about this act, which was passed on 23 Mar. 1792, see Caleb Brewster to GW, 15 Mar., n.4; 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., 1346–48. For the protests against its provisions made by various federal judges, see Edmund Randolph to GW, 5 April, U.S. Circuit Court Judges for New York to GW, 10 April, and enclosure, GW to the U.S. Senate and House of Representatives, 16, 21 April, and U.S. Circuit Court Judges for Pennsylvania to GW, 18 April 1792.
2. Iredell and Sitgreaves are referring to article 1, section 8 of the U.S. Constitution, which gives Congress the right to establish judicial tribunals inferior to the U.S. Supreme Court.
3. Section 4 of the above-mentioned act of 23 Mar. gave the secretary of war the power “to withhold the name of such applicant from the pension list, and make report of the same to Congress at their next session” if he had “cause to suspect imposition or mistake” (ibid., 1348).
4. Iredell and Sitgreaves are referring to section 3 of the act in question (ibid., 1347).
5. All of the references in section 2 of this act are to the “Circuit Court” or to the “Court.” Section 3 explicitly mentions “the powers given by this act to the respective Circuit Courts.” Only in districts “wherein a Circuit Court is not directed by law to be holden” was “the Judge of the District Court” to act in its stead (ibid.).
6. For GW’s submission of Iredell and Sitgreaves’s letter to Congress, see GW to the U.S. Senate and House of Representatives, 7 Nov. 1792; see also ibid., 611, 671–72. On 28 Feb. 1793 Congress passed “An Act to regulate the claims to Invalid Pensions” which, among other things, repealed the second, third, and fourth sections of the act of 23 Mar. 1792, assigned investigative duties to “the Judge of the district in which such invalids reside” instead of the circuit court, and eliminated the secretary of war’s right unilaterally to review the judges’ decisions (ibid., 1436–37).