434 HASTiINGS—POLICE POWER OF THE STATE. [June 19, 
hearing, yet, as there had been in England from time immemorial 
cases where liability was fixed by a simple declaration of the king’s 
accounting officer, notwithstanding Magna Charta, so in this 
country the same might be done, notwithstanding the constitu- 
tion. 
The other question, as to the exercise of judicial power by the 
accounting officers in making a statement of Swartwout’s account 
and issuing on it process against both his person and property, is 
treated in the same manner and on the basis of the same pre- 
cedents, but they are not applied with the same confidence. The 
same result is reached by similar means, but not with the same 
directness. 
Judge Curtis does not in express terms find in the British 
government the doctrine of a separate judiciary. He goes no 
further than to assume it. The requirement of due process of law 
being in substance in the great charter, English precedents in this 
case, where an act of executive officers was in question, fairly ap- 
plied to it; but no hard-and-fast line between judicial and execu- 
tive acts had ever been attempted in England. To this question it 
was harder to find English authorities to fit. Soit happened that 
this portion of the opinion is simply a fairly conclusive argument 
that an absolute division is impossible, and that the precise 
boundary between the two, if there is to be one, must be fixed by 
Congress or simply by usage. Of course, the fact that the de- 
linquent could take an appeal from the finding of the accounting 
officers to the courts and have the whole matter retried there, left 
Judge Curtis very little standing room from which to claim any 
very essential difference in nature between the power exercised by 
the accounting officers and that exercised by the courts, at least in 
this matter. 
The way in which the old precedents are finally applied to the 
determination of this question, also, of judicial or non-judicial 
power, shows the relations of the ancient parts of our law to the 
newer constitutions, and is worth examining. After finding in the 
matter one in which it depended upon the will of Congress whether 
the act of ascertaining the balance due and issuing process to 
collect it should be given to the courts as a judicial or retained by 
the treasury as anexecutive function, and a part of the duty of 
collecting the revenue, another distinction must be drawn, or else 
everything would be liable to depend upon the will of Congress as 
