are founded shall be by the said judges reported to the Secretary of the Treasury, who, on being satisfied that the same is just and equitable within the provisions of the treaty, shall pay the amount thereof to the person or persons in whose favor the same is adjudged."

The Supreme Court, in construing the power thus conferred, held as follows:

"The law of 1823, therefore, and not the stipulations of the treaty, furnishes the rule for the proceeding of the territorial judges and determines their character. And it is manifest that this power to decide upon the validity of these claims is not conferred on them as a judicial function, to be exercised in the ordinary forms of a court of justice. For there is to be no suit; no parties in the legal acceptance of the term are to be made; no process to issue; and no one is authorized to appear on behalf of the United States or to summon witnesses in the case.

The proceeding is altogether ex parte, and all that the judge is required to do is to receive the claim when the party presents it, and to adjust it upon such evidence as he may have before him or be able himself to obtain. But neither the evidence nor his award are to be filed in the court in which he presides, nor recorded there; but he is required to transmit both the decision and the evidence upon which he decided to the Secretary of the Treasury, and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise. It is to be a debt from the United States upon the decision of the Secretary, but not upon that of the judge.

It is too evident for argument upon the subject that such a tribunal is not a judicial one, and that the Act of Congress did not intend to make it one. (United States vs. Ferreira,

13 Howard, 46)."

Sec. 262. Among the leading cases on the subject of what a judicial proceeding is and what is due process of law is Murray and Kayser vs. Hoboken Land and Improvement Co., 18 How. 272. That was an action of ejectment in which both parties claimed title under Samuel Swortwout-the plaintiffs,

under a levy of an execution on April, 10, 1839, and the defendant under a sale made by the United States Marshal on the 1st day of June 1839, by virtue of a distress warrant issued by the Solicitor of the Treasury in pursuance of the Act of Congress of May 15, 1820, the date of the levy under this warrant antedating the judgment under which plaintiffs' title was made. The above cited Act gave a lien to the United States on the lands of the delinquent and defaulting Collector of the Customs from the date of the levy of the distress warrant authorized by the same Act. Swortwout was Collector of the Customs for the port of New York and his account was audited by the First Auditor and certified by the Comptroller of the Treasury; and for the balance thus found, amounting to $1,374,119.65, the warrant in question was issued by the Solicitor of the Treasury. It would seem that Swortwout had no notice of any of these proceedings and was not heard.

The plaintiff contended that the Act of Congress, authorizing the issuance of a distress warrant without notice to the defaulting officer or giving him a hearing and a sale of his lands thereunder, was unconstitutional and void, because, 1, the proceeding was, in its nature, judicial, and hence, could not be confided to an executive officer and 2, that the warrant was not "due process of law." Mr. Justice Curtis delivered the unanimous opinion of the court. The court considered the two propositions raised, together. It was held that "due process of law" had the same meaning as the "law of the land." That the distress warrant was legal process was not denied, for it was issued in conformity to the Act of Congress. Was it "due process of law" within the meaning of these terms as used in the Constitution? was the question propounded and answered by the court? The court, after an historical review of the practice in England and the Colonies prior to the adoption of the Constitution, on this subject, goes on to show that there is and always has been a radical difference between the methods of ascertaining the existence and amount of debts, due by the receivers of the revenue and compelling their payment and that these methods have varied widely from the

usual course of the common law on other subjects; "and that, as respects such debts due from such officers, the law of the land authorized the employment of auditors and an inquisition without notice" and a species of execution against the body, lands and goods of the debtor to enforce payment of the amount found due. The court, in the course of the opinion, says: "That the auditing of the accounts of a receiver of public moneys may be, in an enlarged sense, a judicial act, must be admitted. So are all those administrative duties, the performance of which involves an inquiry into the existence of facts and the application to them of the rules of law. In this sense, the act of the President in calling out the militia, under the Act of 1795 (12 Wheat. 19), or of a commissioner, who makes a certificate for the extradition of a criminal under a treaty, is judicial. But it is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact. U. S. vs. Ferriera, 13 How. 40. It is necessary to go further and show not only that the adjustment of the balances due from accounting officers may be, but from their nature must be controversies to which the United States is a party within the meaning of the second section of the third Article of the Constitution. We do not doubt the power of Congress to provide by law that such a question shall form the subject-matter of a suit, in which the judicial power can be exerted. The Act of 1820 makes such a provision for reviewing the decision of the accounting officers of the Treasury. But, until reviewed, it is final and binding; and the question is, whether its subject is necessarily and without regard to the consent of Congress a judicial controversy. And we are of opinion that it is not. The power to collect and disburse revenue and to make all laws, that shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue. * Its purpose is to raise money and use it in payment of the debts of the government; and, whoever may have possession of the public money, until

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it is actually disbursed, the power to use those known and appropriate means continues. * * * It may be added that, probably, there are few governments which do or can permit claims for public taxes to become subjects of judicial controversy according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding. Though generally, both public and private wrongs are redressed through judicial action, there are more summary extra judicial remedies for both. An instance of extra-judicial redress of private wrong is the recapture of goods by their lawful owner; of a private wrong by a private person is the abatement of a public nuisance; and the recovery of public dues, by a summary process of distress, issued by some public officer authorized by law is an instance of redress of a particular kind of public wrong by the act of the public through its authorized agents. There is, however, an important distinction between these. Though a private person may retake his property or abate a nuisance, he is directly responsible for his acts to the proper judicial tribunals. His authority to do these acts depends not merely on the law, but upon the existence of such facts as are in point of law sufficient to constitute that authority; and he may be required by an action at law to prove those facts; but a public agent, whose acts, pursuant to the command of the legal precept, can justify his act by the production of such precept. He can not be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, can not be sued without his consent." The court goes on to say that "there are matters involving public rights which may be presented in such form that the court is capable of acting on them and which are susceptible of judicial determination but which Congress may or may not bring within judicial cognizance of the courts of the United States as it may deem proper. Equitable claims to land, by the inhabitants of ceded territories, form a striking instance of such a class of cases;

and as it depends on the will of Congress whether a remedy in the courts shall be allowed at all in such cases they may regulate it and prescribe such rules as they may think just and needful. Thus it has been repeatedly decided, in this class of cases, that upon their trial, the acts of executive officers, done under the authority of Congress, were conclusive, either upon the particular facts involved, or upon the whole title. Faley vs. Harrison, 15 How. 433; Burgess vs. Gray, 16 How. 48.

It is true, also, that even in a suit between private persons to try a question of private right, the action of the executive power, upon a matter committed to its determination on the Constitution and Laws, is conclusive. Luther vs. Borden, 7 How. 1; Doe vs. Borden, 15 How. 635."

Applying the principles thus laid down, the court held that the action of the executive power in issuing the warrant was conclusive evidence of the facts recited in it and of the authority to make the levy.

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Sec. 263. In Luther vs. Borden, cited in the above case, the court, after holding that the President has the power, under the Constitution, to determine what body of men constitutes the Legislature of a State and who is the Governor of a State, when a dispute arises requiring such determination, continues: "It is said, this power in the President is dangerous to liberty and may be abused. All power may be abused, if placed in unworthy hands. * * When citizens of the same State are in arms against each other and the constituted authority are unable to execute the laws, the interposition of the United States must be prompt or it is of little value. The ordinary course of proceedings in Courts of Justice would be utterly unfit for the crisis. And the elevated office of the President *** and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish such strong safeguards against a willful abuse of power as human prudence and foresight could well provide."

Sec. 264. In Doe vs. Borden, another case cited by the court in Murray vs. Hoboken L. and I. Co., the court held that a previous land grant by the sovereign, under which plain