or consignee, if the findings be against him, to appeal to the Court of Customs Appeals on questions of law affecting the findings. There is also a provision purporting to subject the decision of that court to review by this Court upon certiorari. Ultimately the commission is required to transmit its findings and recommendations, with a transcript of the evidence, to the President so that he may consider the matter and act thereon.

A further provision declares that

any additional duty or any refusal of entry under this section shall continue in effect until the President shall find and instruct the Secretary of the Treasury that the conditions which led to the assessment of such additional duty or refusal of entry no longer exist.

The present petitioner, the Bakelite Corporation, desiring to invoke the action under that section, filed with the Tariff Commission a sworn complaint charging unfair methods and acts in the importation and subsequent sale of certain articles and alleging a resulting injury to its domestic business of manufacturing and selling similar articles. The commission entertained the complaint, gave public notice thereof and conducted a hearing, in which interested importers appeared and presented evidence claimed to be in refutation of the charge. The commission made findings sustaining the charge and recommended that the articles to which the unfair practice relates be excluded from entry. The importers appealed to the Court of Customs Appeals, where the Bakelite Corporation challenged the court's jurisdiction on constitutional grounds. The court upheld its jurisdiction and announced its purpose to entertain the appeal. Thereupon the Bakelite Corporation presented to this Court its petition for a writ of prohibition. Pending a decision on the petition further proceedings on the appeal have been suspended.

The grounds on which the jurisdiction of the Court of Customs Appeals was challenged in that court, and on which a writ of prohibition is sought here, are:

1. That the Court of Customs Appeals is an inferior court created by Congress under section 1 of Article III of the Constitution, and as such it can have no jurisdiction of any proceeding which is not a case of controversy within the meaning of section 2 of the same article.

2. That the proceeding presented by the appeal from the Tariff Commission is not a case of controversy in the sense of that section, but is merely an advisory proceeding in aid of executive action.

The Court of Customs Appeals considered these grounds in the order just stated and by its ruling sustained the first and rejected the second. 16 Ct. Cust. Appls. —; 53 Treasury Decisions, 716.

In this Court counsel have addressed arguments not only to the two questions bearing on the jurisdiction of the Court of Customs Appeals but also to the question whether, if that court be exceeding its jurisdiction, this Court has power to issue to it a writ of prohibition to arrest the unauthorized proceedings.

The power of this Court to issue writs of prohibition never has been clearly defined by statute1 or by decisions. And the existence of the power in a situation like the present is not free from doubt.

1 See Rev. Stat., secs. 688, 716; U. S. C., title 28, secs. 342, 377.

2 See Ex parte City Bank of New Orleans, 3 How. 292, 311, 322; Ex parte Joins, 191 U. S. 93, 102, and cases cited; Ex parte United States, 226 U. S. 420.

But the doubt need not be resolved now, for, assuming that the power exists, there is here, as will appear later on, no tenable basis for exercising it. In such a case it is admissible, and is common practice, to pass the question of power and to deny the writ because without warrant in other respects.3

While Article III of the Constitution declares, in section 1, that the judicial power of the United States shall be vested in one Supreme Court and in "such inferior courts as the Congress may from time to time ordain and establish," and prescribes, in section 2, that this power shall extend to cases and controversies of certain enumerated classes, it long has been settled that Article III does not express the full authority of Congress to create courts, and that other articles invest Congress with powers in the exertion of which it may create inferior courts and clothe them with functions deemed essential or helpful in carrying those powers into execution. But there is a difference between the two classes of courts. Those established under the specific power given in section 2 of Article III are called constitutional courts. They share in the exercise of the judicial power defined in that section, can be invested with no other jurisdiction, and have judges who hold office during good behavior, with no power in Congress to provide otherwise. On the other hand, those created by Congress in the exertion of other powers are called legislative courts. Their functions always are directed to the execution of one or more of such powers and are prescribed by Congress independently of section 2 of Article III; and their judges hold for such term as Congress prescribes, whether it be a fixed period of years or during good behavior.

The first pronouncement on the subject by this Court was in American Insurance Co. v. Canter, 1 Pet. 511, where the status and jurisdiction of courts created by Congress for the Territory of Florida were drawn in question. Chief Justice Marshall, speaking for the Court, said, p. 546:

These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general Government can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the 3d article of the Constitution, but is conferred by Congress in the execution of those general powers which that body possesses over the territories of the United States.

That ruling has been accepted and applied from that time to the present in cases relating to territorial courts."

A like view has been taken of the status and jurisdiction of the courts provided by Congress for the District of Columbia. These

Ex parte City Bank of New Orleans, 3 How. 292, 311, 322; Smith v. Whitney, 116 U. S. 167, 175-176; Ex parte Joins, 191 U. S. 93, 102; In re Rice, 155 U. S. 396; In re Huguley Manufacturing Co., 184 U. S. 297: Ex parte Oklahoma, 220 U. S. 191; Ex parte Oklahoma (No. 2). 220 U. S. 210; Er parte Southwestern Surety Insurance Co., 247 U. S. 19; Ex parte Tiffany, 252 U. S. 32; Ex parte Peterson, 253 U. S. 300; Ex parte Chicago, Rock Island & Pacific Ry. Co., 255 U. S. 273; Ex parte United States, 263 U. S. 389.

Benner v. Porter, 9 How. 235, 242; Clinton v. Englebrecht, 13 Wall. 434, 447; Hornbuckle v. Toombs, 18 Wall. 648, 655; Good v. Martin, 95 U. S. 90, 98; Reynolds v. United States, 98 U. S. 145, 154; City of Panama, 101 U. S. 453, 460; McAllister v. United States, 141 U. S. 174. 180 et seq.; Romeu v. Todd, 206 U. S. 358, 368.

courts, this Court has held, are created in virtue of the power of Congress "to exercise exclusive legislation" over the district made the seat of the Government of the United States, are legislative rather than constitutional courts, and may be clothed with the authority and charged with the duty of giving advisory decisions in proceedings which are not cases or controversies within the meaning of Article III, but are merely in aid of legislative or executive action, and therefore outside the admissible jurisdiction of courts established under that article."

The United States Court for China and the consular courts are legislative courts created as a means of carrying into effect powers conferred by the Constitution respecting treaties and commerce with foreign countries. They exercise their functions within particular districts in foreign territory and are invested with a large measure of jurisdiction over American citizens in those districts. The authority of Congress to create them and to clothe them with such jurisdiction has been upheld by this Court and it is well recognized.*

Legislative courts also may be created as special tribunals to examine and determine various matters, arising between the Government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.8 Conspicuous among such matters are claims against the United States. These may arise in many ways and may be for money, lands or other things. They all admit of legislative or executive determination, and yet from their nature are susceptible of determination by courts; but no court can have cognizance of them except as Congress makes specific provision therefor. Nor do claimants have any right to sue on them unless Congress consents; and Congress may attach to its consent such conditions as it deems proper, even to requiring that the suits to be brought in a legislative court specially created to consider them.9

The Court of Claims is such a court. It was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the

5 Keller v. Potomac Electric Power Co.. 261 U. S. 428, 442-444; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 700. And see Butterworth v. Hoe, 112 U. S. 50, 60; United States v. Duell, 172 U. S. 576, 582-583.

See title 19, chapters 2 and 3, U. S. C.

In re Ross, 140 U. S. 453; American China Development Co. v. Boyd, 148 Fed. 258; Biddle v. United States, 156 Fed. 759; Cunningham v. Rodgers, 171 Fed. 835; Swayne & Hoyt v. Everett, 255 Fed. 71; Fleming v. United States, 279 Fed. 613; Wulfsohn v. Russo-Asiatic Bank, 11 F. (2d) 715; 2 Moore's Digest International Law, sec. 262; 1 Hyde International Law, sec. 264.

8 Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 280, 284; Grisar v. McDowell, 6 Wall. 363, 379; Auffmordt v. Hedden, 137 U. S. 310, 329; In re Fassett, 142 U. S. 479, 486-487; Nishimura Ekiu v. United States, 142 U. S. 651, 659660; Astiazaran v. Santa Rita Land & Mining Co., 148 U. S. 80, 81-83; Passavant v. United States, 148 U. S. 214, 219; Fong Yue Ting v. United States, 149 U. S. 698, 714-715; United States v. Coe, 155 U. S. 76, 84; Wallace v. Adams, 204 U. S. 415, 423; Gordon v. United States, 117 U. S. 697, 699; La Abra Silver Mining Co. v. United States, 175 U. S. 423, 459-461; United States v. Babcock, 250 U. S. 328, 331; Luckenbach S. S. Co. v. United States, 272 U. S. 533, 536.

United States v. Ferreira, 13 How. 40, 47; De Groot v. United States, 5 Wall. 419, 431-433; Ex parte Russell, 13 Wall. 646, 668; McElrath v. United States, 102 U. S. 426, 440; United States v. Louisiana, 123 U. S. 32, 36-37; Schillinger v. United States, 155 U. S. 163, 166; Luckenbach S. S. Co. v. United States, 272 U. §. 533, 536.

debts of the United States. But the function is one which Congress has a discretion either to exercise directly or to delegate to other agencies.

For 65 years following the adoption of the Constitution Congress made it a practice not only to determine various claims itself but also to commit the determination of many to the executive departments. In time, as claims multiplied, that practice subjected Congress and those departments to a heavy burden. To lessen that burden Congress created the Court of Claims and delegated to it the examination and determination of all claims within stated classes.10 Other claims have since been included in the delegation and some have been excluded. But the court is still what Congress at the outset declared it should be "a court for the investigation of claims against the United States." The matters made cognizable therein include nothing which inherently or necessarily requires judicial determination. On the contrary, all are matters which are susceptible of legislative or executive determination and can have no other save under and in conformity with permissive legislation by Congress.

The nature of the proceedings in the Court of Claims and the power of Congress over them are illustrated in McElrath v. United States, 102 U. S. 426, where particular attention was given to the statutory provisions authorizing that court, when passing on claims against the Government, to consider and determine any asserted set-offs or counterclaims, and directing that all issues of fact be tried by the court without a jury. The claimant in that case objected that these provisions were in conflict with the seventh amendment to the Constitution, which preserves the right of trial by jury in suits at common law where the value in controversy exceeds $20. This Court disposed of the objection by saying (p. 440):

There is nothing in these provisions which violates either the letter or spirit of the seventh amendment. Suits against the Government in the Court of Claims, whether reference be had to the claimant's demand or to the defence, or to any set-off or counterclaim which the Government may assert, are not controlled by the seventh amendment. They are not suits at common law within its true meaning. The Government can not be sued except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, informs the claimant that if he avails himself of the privilege of suing the Government in the special court organized for that purpose, he may be met with a set-off, counterclaim, or other demand of the Government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the Government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the Government to the exercise of the privilege.

While what has been said of the creation and special function of the court definitely reflects its status as a legislative court, there is propriety in mentioning the fact that Congress always has treated it as having that status. From the outset Congress has required it to give merely advisory decisions on many matters. Under the act creating it all of its decisions were to be of that nature.11 After

10 Act Feb. 24, 1855. c. 122, 10 Stat. 612.

11 Act Feb. 24, 1855, c. 122, secs. 7-9, 10 Stat. 612.

wards some were to have effect as binding judgments, but others were still to be merely advisory.12 This is true at the present time.13 A duty to give decisions which are advisory only, and so without force as judicial judgments, may be laid on a legislative court, but not on a constitutional court established under Article III.14

In Gordon v. United States, 117 U. S. 697, and again in In re Sanborn, 148 U. S. 222, this Court plainly was of opinion that the Court of Claims is a legislative court specially created to consider claims for money against the United States, and on that basis distinctly recognized that Congress may require it to give advisory decisions. And in United States v. Klein, 13 Wall. 128, 144-145, this Court described it as having all the functions of a court, but being, as respects its organization and existence, undoubtedly and completely under the control of Congress.

In the present case the court below regarded the recent decision. in Miles v. Graham, 268 U. S. 501, as disapproving what was said in the cases just cited, and holding that the Court of Claims is a constitutional rather than a legislative court. But in this Miles v. Graham was taken too broadly. The opinion therein contains no mention of the cases supposed to have been disapproved; nor does it show that this Court's attention was drawn to the question whether that court is a statutory court or a constitutional court. In fact, as appears from the briefs, that question was not mooted. Such as were mooted were considered and determined in the opinion. Certainly the decision is not to be taken in this case as disturbing the earlier rulings or attributing to the Court of Claims a changed status. Webster v. Fall, 266 U. S. 507, 511.

That court was said to be a constitutional court in United States v. Union Pacific R. R. Co., 98 U. S. 569, 602-603; but this statement was purely an obiter dictum, because the question whether the Court of Claims is a constitutional court or a legislative court was in no way involved. And any weight the dictum, as such, might have is more than overcome by what has been said on the question in other cases where there was need for considering it.

Without doubt that court is a court of the United States within the meaning of section 375 of title 28, U. S. C.,15 just as the superior courts of the District of Columbia are; 16 but this does not make it a constitutional court.

The authority to create legislative courts finds illustration also in the late Court of Private Land Claims. It was created in virtue of the power of Congress over the fulfillment of treaty stipulations; and its special function was that of hearing and finally determining claims founded on Spanish or Mexican grants, concessions, etc., and embracing lands within the territory cited by Mexico to the United States and subsequently included within the Territories of New

12 Acts Mar. 3, 1863, c. 92, secs. 3, 5, and 7, 12 Stat. 765; Mar. 17, 1866, c. 19, 14 Stat. 9; Mar. 3, 1883, c. 116, secs. 1 and 2, 22 Stat. 485; Jan. 20, 1885, c. 25, sec. 6, 23 Stat. 283; Mar. 3, 1887, c. 359, secs. 12-14, 24 Stat. 505.

18 Title 28, secs. 254, 257, U. S. C.

14 United States v. Ferreira, 13 How. 40, 48-51; Gordon v. United States, 117 U. s. 697; In re Sanborn, 148 U. S. 222; Muskrat v. United States, 219 U. S. 346; Keller v. Potomac Electric Co., 261 U. S. 428, 442-444; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 698-691; Liberty Warehouse Co. v. Grannis, 273 U. S. 70. 74: Fidelity National Bank v. Swope, 274 U. S. 123, 134; Willing v. Chicago Auditorium, 277 U. S. 274, 289.