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perly belong to a court. A committee may recommend, but a court can only adjudge, and that whether its jurisdiction be final or not. It cannot adjudge without founding its judgments upon the law; and where it can find no law, it can render no judgment. It may, perhaps, be said that as our judgments are not final, and as we must report to Congress, our decisions can be regarded only as recommendatory in their nature. But the seventh section of the act provides that the court "shall report to Congress the cases upon which they shall have finally acted, stating in each the material facts which they find established by the evidence, with their opinion in the case, and the reasons upon which such opinion is founded." Under this provision "opinion in the case" can mean only an opinion as to the rights of the parties upon the facts proved or admitted in the case. We do not think that Congress, by establishing this court, intended to constitute a council to advise them what course it would be honest and right, or expedient, for them to pursue in any given case. They meant, as the title of the act denotes, "to establish a court for the investigation of claims," to ascertain the facts in each case, and the legal rights and liabilities arising from those facts. It is only by acting upon some settled plan, and according to some fixed principles, that the duties of the court can be performed with any prospect of administering substantial justice. The obvious duty of the court is to expound the law as they find it established, and apply it to the cases before them, and not to create it; jus dicere, and not jus dare.

Considerations of this general character are pertinent to the subject before us, because it raises the question at once, how far we should recommend to Congress to do what we might think right and proper to be done, and how far we are bound to confine ourselves to the application of principles of law. It is always within the power of Congress to make a law for each case, within the limits of the constitution; but, in our opinion, we have no power to make a law for any case. Congress did not intend that we should legislate. In that case, we must make the law before we could pronounce a judgment when the claim did not come within any principle. If Congress think that the law, as it exists, does not render justice to a party, the remedy is in their own hands, by legislating in such a way as the demands of justice may require. It is more consistent with the constitution, which requires that the departments of the government should be kept distinct from each other, and far better and safer that the power of legislation should be exercised by Congress, than that it should be vested in any judicial tribunal. It is the peculiar duty of Congress to understand the wants of the country, and what is equitably due to the citizen, and, within constitutional limits, to legislate accordingly. But if we were to recommend any action to supply any supposed deficiency in the laws, we should not only assume a responsibility which does not belong to us, but we should interfere with the prerogative of the legislature. We shall, therefore, confine ourselves to determining how far the United States are bound by law to pay interest upon a sum ascertained to be due.

It has been supposed that, as, when a petition is presented to this court, the United States occupy the position of an ordinary defendant

in a suit at law, the claiment, when a sum is adjudged to be due to him, is entitled to recover interest from the United States, as any plaintiff would be who had established his right to recover a certain sum of a defendant. It will illustrate the question to inquire how far this right extends between private persons. Laying aside the right to recover interest founded on the obligation of a contract, a party in a suit at law is entitled to it only upon one of three grounds. The right to recover interest must depend

1st. Upon statutory provisions.

2d. Upon the authority of adjudged cases; or, :

3d. Upon some usage known to and recognised by the parties. It is difficult to conceive of any other foundation for this right. The first ground is sufficiently intelligible without any further

comment.

As to the second ground, the authority of adjudged cases, it is somewhat remarkable that upon a subject of such frequent recurrence, and so necessary to be early settled and understood, the decisions of the courts, both American and English, should be so numerous and so discordant. An analysis of the authorities will show that it is difficult, if not impossible, to elicit from them any general rule regulating the rights and liabilities of parties upon this subject. An elaborate and able investigation of the cases is to be found in the opinions of Savage, C. J., and Sutherland, J., in the case of Reid vs. Rensellaer Glass Factory, 2 Cowen, 387, in the supreme court of New York, and in the opinion of Mr Senator Spencer, in the same case, in the court of errors, reported 5 Cow., 587. But it is unnecessary at present to attempt an investigation of them. In the case of Calton vs. Bragg, 15 East., 226, Lord Ellenborough said: "Lord Mansfield sat here for upwards of thirty years, Lord Kenyon for above thirteen years, and I have now sat here for more than nine years, (a period of fifty-two years,) and during this long course of time no case has occurred where, upon a mere simple contract of lending without an agreement for the payment of the principal at a certain time, or for interest to run immediately, or under special circumstances from whence a contract for interest was to be inferred, has interest ever been given." This statement appears to be conclusive as to the law of England at that time, and also to show that the allowance of interest by the court, as an incident to the debt, is always founded upon the agreement of the parties. Lord Chief Justice Abbott says, in Higgins vs. Sargent, 2 B. & C., 345, that "as a general principle, it is now established that interest is allowed by law only upon mercantile securities, or in those cases where there has been an express promise to pay interest, or where such promise is to be implied from the usage of trade, or other circumstances." Mr. Senator Spencer, in the 5 Cowen, 608, also says, that "its allowance by the courts as an incident to the debt, and invariably following it, is founded solely upon the agreement of the parties.'

In England interest has been refused where property has been unjustly detained, or payment improperly refused, even in cases of fraud— Lord Ellenborough saying in the case of Crockford vs. Winter, 1 Camp., 129, that the fraud did not take the case out of the rule he

had previously laid down in De Haviland vs. Bowerbank, 1 Camp., 50; that there must be an agreement expressed or implied; and this principle was afterwards adhered to in the case of Bernales vs. Fuller, 2 Camp., 426. By the act of 3 and 4 W., ch. 32, 48, it was provided, that upon sums certain, payable at a certain time, or otherwise, the jury may, if they shall think fit, allow interest to the creditor. This act, however, leaves the matter in great uncertainty, as the jury are to exercise their discretion in each case.

Still, there are decisions the effect of which would seem to be that interest in some cases is a legal claim, irrespective of any agreement. Although it has been often stated that interest is not recoverable for money owing for goods sold and delivered, as in Blaney vs. Hendrick, 3 Wils., 205, and in Eddowes vs. Hopkins, Dougl., 376, still it is said by Lord Thurlow, in Boddam vs. Riley, 2 Bro. C. C., 3, that "all contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid." One reason for the discrepancy in the decisions is to be found in the neglect to discriminate between the cases where interest has been held to be an incident to the debt, and those cases where it has been held that the jury might allow it by way of damages for the detention of the debt. In Eddowes vs. Hopkins, Dougl., 376, Lord Mansfield held, that though, by the common-law, book debts do not of course carry interest, yet, in cases of long delay, under vexatious and oppressive circumstances, it may be allowed, if a jury, in their discretion, shall see fit to allow it. In Entwistle vs. Shepherd, 2 T. R., 28, which was debt upon a judgment, Buller, J., said, it was a question for the jury whether they would give interest by way of damages. In Bunn vs. Dabzell, 2 C. and P., 376, it was held by Lord Tenterden, that whether interest should be recovered upon an Irish judgment was a question for the jury; and if they thought the plaintiff had been diligent, and had taken proper steps to find his debtor, they might allow it. In Craven vs. Tickell, 1 Ves., jr., 60, the Lord Chancellor said, "from conversation I have had with the judges, interest is given either by the contract or in damages upon every debt detained." But in Gilpin vs. Consequa, Pet. C. C. R., 85, Washington, J., said: "It is not agreeable to legal principles to allow interest on unliquidated or contested claims in damages; and in the subsequent case of Willing vs. Consequa, ibid. 172, the same judge said: "Interest is a question generally in the discretion of a jury.

It has not been our purpose, in referring to some of the more prominent decisions on this subject, to ascertain whether any general rule can be deduced from them that shall regulate the allowance of interest in suits at law, as that is not the question before us. Our object has been simply to show that the authorities are conflicting, and that an approximation to a rule is to be found in those decisions. which hold that, in the absence of a contract to pay interest, it may in some cases be allowed by the jury, upon a view of all the circumstances in the case. But even supposing that juries are vested with a discretion to allow interest or not, we do not occupy the position of a jury, although, to a certain extent, we necessarily exercise some of the functions belonging to that body. Like a jury, we are called

upon to determine questions of fact; but of that wide discretion which, according to some of the cases, juries may often exercise, we possess no portion. On this subject they derive their power, so far as it may exist, from practice sanctioned by judicial decisions. In regard to the question before us, there have been no judicial decisions and no practice. Our duty is confined to determining whether certain facts are proved by the evidence, and only in this respect are our duties like those of a jury. If we were to take Lord Mansfield's rule, that a jury, in their discretion, might allow interest "in cases of long delay, under vexatious and oppressive circumstances," and apply it to claims against the United States, the question would then be whether, in the given case, the United States have been dilatory, and had postponed the payment of the debt for an unreasonable period. This would render it necessary to inquire, to some extent, into the condition of the United States when the debt accrued and since, the situation of their foreign and domestic relations, the position of their financial affairs, the existence of financial crises, and everything that would throw any light upon the question, whether it was or was not, on the whole, unreasonable that payment of a debt should have been delayed. Such a vague and unlimited discretion we should hesitate to exercise without an authority vested in us in clear and positive terms.

In regard to the third source of the right to recover interest in suits at law, the existence of a usage known to and recognised by the parties, it is sufficient for our present purpose to say, that the usage of trade in this as well as in other cases may properly, and often does, regulate the contracts of parties. (Meech vs. Smith, 7 Wend., 315.) A usage may operate upon and modify the rights and duties. of individuals whose dealings are comprehended within it, whether it be local merely, or the usage of a particular trade. As they are presumed to contract with reference to the usage, it thus becomes a part of their contracts.

If we attempt to apply to cases in this court, where claims are preferred against the United States, the rules which regulate the liability of parties in ordinary suits, we shall find that the liability of the United States to pay interest upon a debt cannot be traced to any of the sources from which the liability of individuals can be deduced. There are, in the first place, no acts of Congress which impose this liability upon the United States. Statutes may be found exceptionable in their character, and based upon peculiar circumstances, which induced Congress, in the exercise of their discretion, and in view of what seemed to them proper, to provide that interest in certain cases should be paid. But there is no general law enacting that interest shall be paid on debts due from the United States, nor has any general appropriation of money ever been made for the purpose of paying claims for interest.

Secondly. There are no adjudged cases which might serve to us as precedents for deciding that the United States are legally bound to pay interest. Indeed, until the institution of this court, there was no mode by which the liability of the United States, upon this point, could be made the subject of judicial investigation. But we are not Rep. C. C. 1-2

aware that there are any cases in which the question has been even incidentally discussed. There is no law enacting that interest shall not be paid, as there is no law protecting the United States from being sued; but we presume that it was never supposed such a suit would lie until the passage of the act constituting this court. We could not, then, justify ourselves for holding that the United States are liable to pay interest by appealing to the decisions of tribunals where this question has arisen and has been decided.

There is a remark made by Mr. Justice Baldwin, in pronouncing the judgment of the court in the case of the United States vs. Arredondo, (6 Pet., 711,) which might at first be supposed to have some bearing upon this question. He says: "The only question depending is, whether the claimant or the United States are the owners of the land in question. By consenting to be sued, and submitting the decision to judicial action, they have considered it as purely a judicial question, which we are now bound to decide as between man and man on the same subject-matter, and by the rules which Congress themselves have prescribed." We do not understand this remark as meaning anything more than that when the United States have permitted themselves to be sued they become subject to such rules and principles of law as may be applicable to them, or may have been prescribed by Congress. The case referred to was decided more than twenty years before the United States were made suable, and when it was necessary to state a rule for the decision of that particular case alone, the court not being called upon to state any general principle regulating their liabilities in all cases. We have no reason to suppose that Congress, by constituting this court, intended to provide that all the acts of Congress, and all the judicial decisions, and all the principles which regulate the dealings between man and man, were to be applied at once and without discrimination to the United States; that they might, for instance, plead the statute of limitations without any express authority, or be subject to other laws enacted before they could be made parties to suits, and whose application to them could not have been anticipated. By the institution of this court a new party defendant has been called into existence, and made to appear before it, with duties to the claimants not at present distinctly defined, and requiring the light of research and reflection to display their outlines. If Mr. Justice Baldwin could have supposed that he was stating a rule of conduct for the United States in all cases where, by subsequent legislation, they might be made defendants, the subject would undoubtedly have been examined with a degree of care commensurate with its importance.

Thirdly. The liability of the United States to pay interest cannot be founded on such a usage as enters into and forms a part of the contracts of individuals. The usage is directly and expressly the reverse. The government has not only omitted to pay interest, but for the greater part of a century it has expressly refused to pay it. The practice of the government on this subject is fully stated in a recent opinion by the present Attorney General, Mr. Cushing, under the date of September 20, 1855. It there appears that, as long ago as the year 1819, Mr. Wirt spoke of a refusal to allow interest as