By the Act of March 23, 1792, it was provided that the Circuit Courts should pass upon certain claims of invalid pensioners, subject to revision by the Secretary of War and by Congress. When the first case under this Act arose in the Federal Circuit Court sitting in New York, April 5, 1792, Chief Justice Jay and Judge Cushing, after stating that, under the Constitution, the Government was divided into three "distinct and independent branches, and that it is the duty of each to abstain from and to oppose encroachment on either, that neither the Legislative nor the Executive branch can constitutionally assign to the Judicial any duties but such as are properly judicial, and to be performed in a judicial manner ", decided to construe the Act as appointing the Judges as Commissioners to perform non-judicial duties, with power to accept or decline the office; and, out of desire to show high respect for Congress, they professed willingness to act as such Commissioners.[1] These views the Judges communicated to Congress by means of a letter addressed to the President, April 10, 1792, Judge Iredell, sitting in the Southern Circuit, also wrote to President Washington that in his view the Act was unconstitutional, and he expresed as doubt as to whether he would be justified in acting even as a Commissioner. Judges Wilson and Blair, however,
- ↑ That the subject matter of the statute was such as to enlist popular sympathy, and therefore to bring possible odium on the Judges for failing to act under the statute, may be seen from an editorial in the National Oazette, April 12, 1792: "Our poor, starving invalids have at length some provision made for them by Congress; and as the distresses of many of them are urgent in the extreme, it is to be hoped that not a moment's delay will be made by the public officers who are directed to settle their accounts; for although men who are accustomed to plentiful tables do not perhaps know it, it is nevertheless a melancholy truth that a few days fasting would kill not only a feeble, war-worn veteran, but even a hearty well-fed member of Congress or head of a department. If through unavoidable delay any of those unfortunate men should starve before their pittance is paid, then it is to be hoped their widows and orphans will on the very first application receive it, that they may at least have something to purchase coffins for the deceased."
