Federal Pensions for Disabled Veterans of the Revolutionary War

This second "precedent" is an exchange between Congress and the federal judiciary, especially the federal judges' and courts' response to Congress. Congress established pensions for disabled veterans of the Revolutionary War.2 Congress assigned to the federal circuit courts responsibility for making initial determinations on individual claims for pensions.3 Those determinations were not binding upon the Secretary of War who administered the pensions. If the Secretary of War disapproved a claim approved by the circuit courts, he was obligated to report the matter to Congress, so it could determine whether to award a pension despite the denial.4

On April 5, 1792, the Circuit Court for the District of New Yorkincluding Chief Justice John Jay and Associate Justice William Cushingformally stated upon the record:

That neither the legislative nor 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, inasmuch 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.

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 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.5

By letter dated April 10, 1792, the judges protested the matter to President Washington.

On April 11, 1792, the Circuit Court for the District of Pennsylvaniaincluding Associate Justices James Wilson and John Blair, Jr.read the pension claim of William Hayburn and determined not to address the matter.6 By letter dated April 18, 1792, the judges protested the matter to President Washington.

Upon due consideration, we have been unanimously of opinion, that, under this act, the circuit court, held for the Pennsylvania district, could not proceed . . . 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.7

In the few intervening days, on April 13, 1792, Congress received Hayburn's request for relief. Hayburn's petition observed: "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."8 Representative Elias Boudinot confirmed to the House of Representatives that Hayburn fairly characterized the position of the Circuit Court for the District of Pennsylvania.

There is some suggestion that some members of Congress may have considered impeachment of the judges of the Circuit Court for the District of Pennsylvania.

Never was the word 'impeachment' so hackneyed, as it has been since the spirited sentence passed by our judges on an unconstitutional law. The highfliers, in and out of Congress, and the very humblest of their humble retainers talk of nothing but impeachment! impeachment! impeachment! as if forsooth Congress were wrapped up in the cloak of infallibility, which has been torn from the shoulders of the Pope; and that it was damnable heresy and sacrilege to doubt the constitutional orthodoxy of any decision of theirs, once written on calf-skin!9

The Circuit Court for the District of North Carolinaincluding Justice James Iredelllimited their handling of pension requests, by purporting to act solely in the capacity of "commissioners."10 By letter dated June 8, 1792, they also protested to President Washington.11

When the U.S. Supreme Court convened for its August, 1792, Term, Attorney General Randolph petitioned the Court to issue a writ of mandamus to the Circuit Court for the District of Pennsylvania, directing it to consider the merits of Hayburn's pension request.12 The Court took the matter under advisement until its next session but, due to intervening legislation, never ruled on the matter.13 This entire collection of letters and cases is typically referred to as Hayburn's Case.

On February 28, 1793, Congress repealed the administrative provisions of the 1792 Act.14 Under the new legislation, the duty of initially reviewing evidence of eligibility for a pension was assigned to the district court judge in each district or by "any three persons specially authorized by commission from said judge." Another provision of the 1793 Act imposed the duty upon

the Secretary of War, in conjunction with the Attorney General, to take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States, on the validity of any such rights claimed under the act aforesaid, by the determination of certain persons styling themselves Commissioners.15

In response to that statutory directive, the United States brought suit against Yale Todd to recover sums paid to him as a pension based upon a determination by the judges of the Circuit Court for the District of Connecticutincluding Chief Justice Jay and Justice Cushingacting as commissioners.16 By that point in time, every Justice of the U.S. Supreme Court, except Thomas Johnson, "had formally expressed his opinion, in writing, that the duty imposed, when the decision was subject to the revision of a Secretary and of Congress, could not be executed by the court as a judicial power: and the only question upon which there appears to have been any difference of opinion, was whether it might not be construed as conferring the power on the judges personally as commissioners."17

On February 12, 1794, the U.S. Supreme Court ruled against Todd:18

Chief Justice Jay and Justice[s] 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.19

With that ruling and the earlier revision of the statute, the controversy came to an end.

Exercise 6: Consider the following matters in connection with the exchange of correspondence between the Washington Administration and the Supreme Court, as well as the history of the Revolutionary War pension cases:

1. What limitation on the judicial power, if any, was articulated by the Supreme Court in response to the Washington Administration? What arguments did the Court rely upon to support its position? What additional limitations, if any, were suggested by the Court's reasoning?

2. Does the summary of the Revolutionary War pension cases illustrate that as early as 1794, the U.S. Supreme Court had declared federal legislation to be inconsistent with the Constitution?

3. If the Court had declared a federal statute void as inconsistent with the Constitution, what specifically was the problem with the statute?

a. Was it that Congress may not mandate that federal judges adjudicate such claims?

b. Was it that Congress may not authorize federal judges to undertake such duties, even on a voluntary basis?

c. Was it that, if federal judges were required to adjudicate such claims, the Executive Branch must be obligated to accept the adjudication as conclusive?

d. Was it that, if federal judges were required to adjudicate such claims, Congress could not retain discretion to revise the pension law with respect to claims not then finally adjudicated?

e. Was it that, if federal judges were required to adjudicate such claims, Congress could not award benefits to a claimant after the Executive Branch determined the claimant did not qualify? Why should Congress not be permitted to create additional pension for a particularly worthy individual (by a "private law") even if he did not qualify under the public law as viewed by the Executive?