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compelling those departments, would destroy their independence and reduce them to subjection, a result wholly at war with our constitutional system.

It is true that the seventh section of the act of March 3d, 1863, directs that judgments of the Court of Claims "shall be paid out of any general appropriation made by law, for the satisfaction of private claims;" and the obligation to make such payment is imposed upon the Secretary of the Treasury; but this obligation is imposed upon him by Congress, not by the court. The court has no authority to adjudge that it be so paid, still less, any authority to enforce such payment by compulsory process. The legislation in this respect simply consists of an appropriation by Congress to pay such claims as the Court of Claims may allow.

Nor is the decision of this court in the case of Gordon v. The United States, 2 Wall. 561, opposed in any degree to this view. The decision in that case did not proceed upon the ground that the determination by a tribunal of a controversy, when it had no power to execute its determination, was not an exercise of judicial power, but upon the ground that when it was still left to an executive department to review the determination of the Supreme Court (as the act of 1863 did leave it), such determination, although an exercise of judicial power, was not a final one, and, therefore, not of the character which marks the jurisdiction of this court. See United States v. Alire, 6 Wall. 577; United States v. Klein, 13 Wall. 128, 144; United States v. O'Grady, 22 Wall. 641, 647.

In the opinion of Mr. Justice Nelson, in the case of United States v. Alire, supra, an observation is found which may tend to create misapprehension. The court, in that case, held that the Court of Claims had no jurisdiction; and in assigning the reasons, the learned judge said: "We find no provision in any of the statutes requiring a judgment of this character to be obeyed or satisfied." But, certainly, this could be no just ground for the inference that no power was conferred to render such a judgment. For the reasons already indicated, no power could be conferred upon the court, to compel obedience to or satisfaction of its judgments; nor was it necessary, in

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order to render such judgments as complete and effective as they can be made, nor in any statute has any attempt been made to enable the court to enforce any of its judgments, of whatever description, whether adjudging the petitioner entitled to a recovery of money or other relief.

The other reason assigned by the learned judge for the decision, was the true ground upon which the court proceeded, namely, that inasmuch as the statute had made provision, in pursuance of which payment or satisfaction of some of its judgments might be obtained (not indeed, by process of the court, but by congressional appropriation), and had made no such provision for judgments awarding equitable relief, the inference was justified, that power to render judgments of the latter description was not intended to be conferred. Nothing is said concerning the soundness of this inference.

It is unnecessary to argue that injuries proceeding from the State should be redressed as certainly and promptly as those inflicted by private persons. Justice is no respecter of persons. Its obligations are universal and absolute. The ancient maxim that "the king can do no wrong" was never really effective to defeat justice, except in the case where a wrong could not be imputed to ministers or officers, and then only for the purpose of guarding the person of the sovereign.

The government in the transaction in question was exercising no function of sovereignty, but simply engaging in the ordinary business of selling property, of which it was the owner. It simply made a contract with one of its citizens. It cannot do this without consenting to be bound by the ordinary rules which govern the conduct of individuals in such transactions. Were it necessary for the government to enforce such contract, it could enter the courts and have the agreement ascertained and declared by judicial methods. To deny the same privilege to the party with whom it deals is a plain denial of justice. How would this comport with the "nulli negabimus justitiam" of the Great Charter? "When a government enters into a contract with an individual, it deposes, as to the matter of the contract, its constitutional authority, and exchanges the character of legislator for that of

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a moral agent, with the same rights and obligation as an individual." 3 Hamilton's Works, 518.

Nor is the practical recognition of the obligation of the State to redress the injuries it may inflict on its citizens, a recent development of civilization. Centuries ago in England the law had provided a forum and a procedure well calculated to afford redress in all cases which were likely to arise. The petition of right (petition de droit) and the plea of right (monstrans de droit) were modes of redress at common law always open to the subject, and which could be prosecuted in the court of chancery on its common law side, or in the Court of Exchequer. 3 Bl. Com. 256. The procedure in such cases has, by legislation in recent times, been assimilated to that in cases between subject and subject (23-24 Vic. c. 34); but the jurisdiction was complete before. The seventh section of the act referred to declared that it shall not be construed as giving to the subject a remedy against the Crown in cases where none before existed. The Banker's Case, 14 Howell's St. Tr. 1; Thomas v. The Queen, L. R. 10 Q. B. 31; Smith v. Upton, 6 M. & G. 252, note a.

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It was, indeed, for a long time the reproach of the government of the United States, and still is, if the contention of the appellant is well founded, that it furnished its citizens with no judicial methods by which they could assert just claims against it, and left them with no other means of redress than supplication to executive or legislative power, neither of these agencies having the time, the knowledge, or the means to prosecute the inquiries necessary in order to ascertain justice, and too apt to be moved by caprice or favor.

To support the necessity or propriety of the jurisdiction for which we are contending by an appeal to prudential considerations seems almost a surrender of the high ground of positive right upon which the argument more properly rests. Such considerations, however, would of themselves suffice to sustain the views for which we are contending.

When courts in which a citizen can assert his claims against the government are denied, and Congress entertains his petition for redress, the nature of the task which has to be performed

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(if Congress discharges its duty) is not thereby changed. is still a judicial function which is to be performed. The facts must be ascertained, and the law declared. The execution of this function by Congress is a usurpation defensible only on the ground that, unless the public duty is thus performed, it will not be performed at all. It involves all the mischiefs which usually attend the exercise of usurped powers, superadded to those which always accompany private legislation — erroneous conclusions arising from haste and neglect, and the injustice of caprice, favor or corruption. A right which must be sought by petition to a legislative body, because there is no court in which it can be asserted, is but too likely to become the subject of purchase. It requires the agency, not of a bar, but of a lobby.

We must add to this catalogue of mischiefs the others not less flagrant which arise from the neglect of proper legislative duties. The true business of legislation will never be successfully performed, when the time and talents of the legislators are devoted to attention to private claims. This latter consideration was undoubtedly the most influential one which led to the original establishment of the Court of Claims.

Seeing, therefore, that the purely judicial function of ascertaining facts and pronouncing the law thereon is separable and independent from the office of enforcing justice; that whatever of theoretical or practical difficulty which would arise from allowing compulsory process is attached only to the latter function, and not to the former; seeing that the exercise of the former is the plain duty of every civilized State; that it has been clearly recognized from an early period, and provision made for it; that our own government was long under the just reproach of neglect and failure in the performance of this necessary duty; that the practical mischiefs resulting therefrom had become so flagrant as to move Congress to an endeavor to provide a remedy by establishing the Court of Claims; and that the act under consideration is an obvious effort to enlarge that remedy and make it more effective, we need no longer delay the conclusion that this act should be construed, should any occasion for construction be found, not

Argument for Defendant in Error.

with rigid parsimony, but with the liberality which is usually and properly extended to remedial legislation. When Congress endeavors to perform its duty, and to supply great defects in administration, and to cure the most crying evils, it is the duty of courts to second the endeavor. When a new and beneficial jurisdiction is conferred, the maxim "boni judicis est ampliare jurisdictionem" is most applicable. Sedgwick on Stat. & Con. Law, 359 et seq.

In a celebrated case in the British courts concerning the extent of the remedial power which could be exercised under the ancient proceeding of the Petition of Right, the objection was taken that, although relief could be had in cases of dispute concerning lands or chattels, recoveries of money in cases ex contractu could not be adjudged. The court, by placing its decision upon another ground, avoided this objection; but it gave a worthy expression to the spirit of exposition in which such a question should be approached. "We may observe that there is nothing to secure the crown against committing the same species of wrong, unconscious and involuntary wrong, in respect of money, which founds the subject's right to sue out his petition when committed in respect to lands, or specific chattels; and there is an unconquerable repugnance to the suggestion that the door ought to be closed against all redress or remedy for such a wrong." Baron de Bode's Case, 8 Q. B. 208, 273. In the light of this rule of interpretation some objections which the appellants may raise are to be briefly considered.

(a) It will not, of course, be now insisted that jurisdiction is not conferred upon the courts named in the act over claims founded upon equitable considerations. That view was taken by this court in interpreting the original act establishing the Court of Claims. Bonner v. United States, 9 Wall. 156. In the opinion in this case the observation is made in respect to rights in equity that "Congress wisely reserved to itself the power to dispose of them." The justice of this observation is (with deference) not fully perceived. If it be proper that justice should be ascertained and declared by judicial methods in respect to legal claims against the government, why is it