tinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either.

"That neither the Legislative nor the Executive branches, can constitutionally assign to the Judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.

"That the duties assigned to the Circuit courts, by this act, are not of that description, and that the act itself does not appear to contemplate them as such; in as much as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War, and then to the revision of the Legislature; whereas by the Constitution, neither the Secretary at War, nor any other Executive officer, nor even the Legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court.

"As, therefore, the business assigned to this court, by the act, is not judicial, nor directed to be performed judicially, the act can only be considered as appointing commissioners for the purposes mentioned in it, by official instead of personal descriptions. "That the Judges of this court regard themselves as being the commissioners designated by the act, and therefore as being at liberty to accept or decline that office.

"That as the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress; and as the Judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the National Legislature, they will execute this act in the capacity of commissioners.

That as the Legislature have a right to extend the session of this court for any term, which they may think proper by law to assign, the term of five days, as directed by this act, ought to be punctually observed.

That the Judges of this court will, as usual, during the session thereof, adjourn the court from day to day, or other short periods, as circumstances may render proper, and that they will, regularly, between the adjournments, proceed as commissioners to execute the business of this act in the same court room, or chamber."

The Circuit Court for the district of Pennsylvania, (consisting of WILSON, and BLAIR, Justices, and PETERS, District Judge) made the following representation, in a letter jointly addressed to the President of the United States, on the 18th of 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 legislature 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.

*the place in which rules in causes here [*412 depending shall be obtained, THE CHIEF JusTICE, at a subsequent day, stated that

*THE COURT considers the practice [*413 of the courts of King's Bench and Chancery in England, as affording outlines for the practice *of this court; and that they will, from [*414 time to time, make such alterations therein, as circumstances may render necessary.

"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;

"1st. 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.

"2d. 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."

The Circuit Court for the district of North Caro- . lina, (consisting of IREDELL, Justice, and SITGREAVES, District Judge) made the following representation in a letter jointly addressed to the President of the United States, on the 8th of June, 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. "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 purest principles of humanity and justice, which the act in question undoubtly 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 judgment, after duly weighing every consideration that can occur to us; which we have done on the present occasion.

We

"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. therefore, Sir, submit to you the following:"1. That the Legislative, Executive, and Judicial departments, are each formed in a separate 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

Judgment entered by default against a State for want of appearance.

PROCLAMATION was made in this cause, that any person having authority to ap pear for the State of New-York is required to appear accordingly;" and no person appearing it was ordered, on motion of Core for the Plaintiff,

BY THE COURT:-Unless the State appears by the first day of next Term to the above suit, or shew cause to the contrary, judgment will be entered by default against the said state.'

1.-See ant. p. 401 and also post. 419. Chisholm, executor, versus Georgia. Cutting, administrator, versus South Carolina. Grayson versus Virginia. S. C. 2 Dall. 402; cited-3 Dall. 1. 5 Pet. 288; 24 How. 96.

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 mis take; 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.

"These, sir, are our reasons for being of opinion, as we are at present, that this Circuit court cannot be justified in the execution of that part of the act, which requires it to examine 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, as we conceive, our indispensable duty to keep open any court of which we have the honor to be judges, as long as Congress shall direct.

"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 justi

The STATE OF GEORGIA

versus

BRAILSFORD, et al.

Injunction will be granted, in behalf of a State, to stay money collected by a marshall, on a judgment obtained by a British creditor, on a debt sequestered by the State, until it shall be decided to whom the money belongs.

BILL IN EQUITY. This cause was again

brought before the Court, upon a motion by Randolph, to dissolve the Injunction, which had been issued, and to dismiss the Bill. He assigned two grounds in support of his motion :— 1st. That the State of Georgia had no remedy at law to recover the Debt in question; and 2nd. That even if there was a remedy at law, there was no equitable right to justify the present form of proceeding. The motion was opposed by Ingersoll and Dallas; and after argument, the opinions of the judges (in the absence of JOHNSON, Justice,) were delivered as follows.

IREDELL, Justice. It is my misfortune to dissent from the opinion entertained by the rest

2. See ant. p. 402, 3 vol. p. 1.

fled 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 cheerfully 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 of it; and as the Secretary at War has not a disbe given to the court only, and not to the Judges cretion in all instances, but only in those where he has cause to suspect imposition or mistake, 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 a very deliberate consideration, whether we can be warranted in executing the purposes of the act in that manner, 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 more sensible than we are of the necessity of judges being in general extremely cautious in 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 pre-conceived 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 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 which must be deemed an exception to the generas early as possible, considering this as a case al 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 greatest 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 on Judges) that they were capable, from any motive, of persevering against conviction, in apparently maintaining an opinion, which they really thought to be erroneous.

The State of Georgia complains, that having a right to the debt in question, that right has been discussed and over-ruled without giving her an opportunity to be heard in support of it, though she applied to the Circuit Court for that purpose. It is another grievance alledged, that 416*] a Writ of Error has not been *instituted, when, all the facts appearing upon the Record, the decision of the Circuit Court might have undergone a full and satisfactory revision, before the tribunal of the last resort. It is true, that this latter allegation is defectively set forth in the Bill; for, as a Writ of Error could not be sued out without entering security, the State, to entitle herself to any benefit from the exception, ought, in strictness, to have tendered a security to the defendant in the inferior Court. But still, if a writ of error had been brought, it appears to me, that it could only affect the original Plaintiffs and Defendants in the suit; and the State of Georgia could not be made a party to the Record. In this situation, it must, likewise, be considered, Georgia had not a constitutional right to institute a suit, nor could she, in my opinion, be admitted as a party to a proceeding in the nature of an Interpleader, in any, but the Supreme Court.

The State, however, asserts a claim to the debt in controversy, by virtue of an Act of Confiscation; and the debtor admits that he ought to pay the amount of his bond, but is doubtful to which of the contending parties it ought to be paid. Now, without the equitable interposition of this court, I think there will be a defect of justice; for it is obvious to me, either that the state can have no remedy at law, or at least that the remedy at law will not be “plain, adequate, and complete." Two positions have been taken, in opposition to this opinion: 1st. That if the state is entitled to the debt, she may maintain an action on the bond against the obligors:-Or 2d. That the State might bring an action of Assumpsit for money had and received, &c. against Brailsford, if Brailsford had no right to recover, or retain it. I will cursorily consider both these positions.

1st. In the first place, it is to be recollected, that the bond is merged in the judgment; and although the judgment is said to be generally binding only on the parties, yet it is good against all the world, until it is reversed in a regular course of law. To any other suit, for the same cause, Spalding might plead the previous judgment in bar; and the plea could only be defeated by shewing fraud, or collusion. There is no pretence, however, for an imputation of that kind here; since Spalding set forth the title of Georgia as fully as the state herself could have done: And would it not be monstrous, after a judgment rendered under such circumstances, to compel him again to pay the same debt? There is neither principle, nor precedent, for so harsh and oppressive a doctrine.

But if a suit could be maintained upon the bond by the state, how is she to obtain possession of the instrument, without the aid of a court of equity? Suppose it has been deposited with the Clerk of the Circuit Court:-that officer cannot deliver it to the state, without the

bunal. Suppose it remains in the hands of Brailsford: he can hardly be expected voluntarily, to furnish his antagonist with the means of combat. In short, it is only by the authority of this Court, sitting as a Court of Equity, either that the operation of the judgment obtained at common law, against Spalding, can be prevented from becoming conclusive on the question of right; or that the State of Georgia can be enabled to maintain her claim upon its merits.

2d. It is urged, however, that the State has another remedy at law, by an action of Assumpsit for money had and received, against Brailsford. This is, indeed, the legal panacea of modern times; and may, perhaps, be beneficially applied to a great variety of cases. But, it cannot be pretended, that this form of action will lie, before the defendant has actually received the money, which the plaintiff demands. In the present instance, the money has not been received by Brailsford; and, of course, he cannot be compelled to account for it to Georgia.

The case of Moses c. M'Farlane, 2 Burr. 1005, if at all applicable to the points now in controversy, will be found more favorable, I think, to the opinion, which I entertain, than to the opinion, which it has been cited to support. From that case (which presents a most unconscionable conduct on the part of the defendant) it is to be inferred, as I have already stated, that a judgment is a perpetual bar, against a second recovery for the same cause, unless it is tainted with fraud and collusion: But the King's Bench proceed in deciding the question then before them on this ground, principally, that the inferior Court, the Court of Conscience, could not take cognizance of the collateral matter, which constituted the defence; whereas, in the present instance, the matter pleaded by Spalding, was perfectly within the cognizance and jurisdiction of the Circuit Court.

From this view of the subject, therefore, I am induced to conclude, that the State of Georgia has no remedy at law; and, it is sufficient for an incipient exercise of the jurisdiction of this Court, that she has shewn a color of title to recover the money, and that the money is in danger of being paid to another claimant. I abstain from giving any opinion upon the judgment of the Circuit Court; but, certainly, I should never have consented to issue an injunction, if I had thought the legal remedy of the State was plain, adequate, and compleat. If the bill is sustained, the money will be preserved in neutral hands; and the Court may direct an issue to be tried at the bar, in order to ascertain, whether the State of Georgia, or Brailsford, is the right owner,

BLAIR, Justice. My sentiments have coincided, 'till this moment, with the sentiments entertained by the majority of the *Court; [*418 but a doubt has just occurred, which I think it my duty to declare.

I do not conceive, indeed, that any judgment, can be binding upon the rights and interests of a third person, who is not a party to the suit. The very nature of a bill of Interpleader presupposes, that the party by whom it is exhibited, would be liable a second time, if he should either voluntarily, or otherwise, pay the money which he owes, to a wrong claimant. A judg