Lessee of Livingston v. Moore
32 U.S. 469 (1833)

Annotate this Case

U.S. Supreme Court

Lessee of Livingston v. Moore, 32 U.S. 7 Pet. 469 469 (1833)

Lessee of Livingston v. Moore

32 U.S. (7 Pet.) 469

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

The titles to lands under the acts of the Legislature of the State of Pennsylvania providing for the sale of the landed estate of John Nicholson in satisfaction of the liens the state held on those lands, and the proceedings under the same, are valid.

These acts, and the proceedings under them, do not contravene the provisions of the Constitution of the United States in any manner whatsoever.

The words used in the Constitution of Pennsylvania in declaring the extent of the powers of its legislature are sufficiently comprehensive to embrace the powers exercised over the estate of John Nicholson.

In the circuit court, the plaintiffs in error instituted an ejectment for a tract of land in the County of Franklin in the State of Pennsylvania. They showed title to the land, as the heirs of John Nicholson, who was seized of the same at the time of his death under a warrant, survey, and return of survey and payment of the purchase money to the state.

The title of the defendants was regularly derived from a sale of the lands of John Nicholson made under authority of the State of Pennsylvania towards satisfying the lien claimed by the state for the debts due by John Nicholson arising from his defalcation as the comptroller general of the state. The constitutionality and validity of that lien were denied by the plaintiffs.

On 13 April, 1782, John Nicholson was, by an act of the Legislature of Pennsylvania, appointed comptroller general of the state and was entrusted with large powers for the collection of the debts due to the state, the settlement of public accounts, and the management of the funds of the state. Mr. Nicholson acted as comptroller for twelve years, during which time he was impeached, tried, and acquitted. He afterwards, on 19 April, 1794, resigned the office.

By accounts stated, on 19 November, 1796, large

Page 32 U. S. 470

balances were found to be due by Mr. Nicholson to the State of Pennsylvania. On an account, No. 1, headed, "Dr., John Nicholson, account in continental certificates with the State of Pennsylvania, Cr.," the balance was $51,209.22, and on another account, No. 2, headed "Dr., John Nicholson, account, three percent stock, in account with the State of Pennsylvania, Cr.," the balance was stated to be $63,731.06. The original accounts were given in evidence on the trial in the circuit court, and also counterparts of them, signed by the respective officers, upon which were endorsements, one in the handwriting of Mr. Nicholson, the other in that of his counsel, in a suit instituted against him for the recovery of the debts due to the state.

A suit was commenced in the Supreme Court of Pennsylvania by the state against John Nicholson, to September term, 1793, for the loss sustained by the state on certain certificates which it was alleged he had improperly subscribed, and a verdict was obtained against him on 18 December, 1795, for �42,08l 8s. 10d. No execution was ever issued on this judgment.

To September term, 1795, another suit was instituted by the State of Pennsylvania against John Nicholson, being an action of trover for certain continental certificates and funded stock of the United States. Judgment was entered in this suit on 20 March, 1797, on the following agreement, signed by the attorney general of the state and by the counsel for the defendant.

"21 March, 1797: By agreement filed, the judgment is for the sum of $100,390.89, rating the stock as follows, six percent at sixteen shillings and nine pence in the pound; three percent at ten shillings; militia certificates at fifty percent; and that, in the setoff, the defendant be allowed three months to point out any errors to the satisfaction of the comptroller and register-general, such errors to be deducted from the sum for which

Page 32 U. S. 471

judgment shall be entered. Certificates and receipts to be credited also with the charges of the funded debt. Errors against the commonwealth, if any, also to be corrected. The sum for which judgment is now entered, to be altered by the subsequent calculation of the comptroller general alone. Supreme court costs taxed at $35.35."

Executions were issued on the judgment in the year 1798, and afterwards, in 1803, to many counties in the state, and proceedings to condemn the lands of the defendant took place. Between 8 March, 1796, when the first settlement of the accounts of John Nicholson was made, and 21 March, 1797, when the state judgment was entered, many judgments were obtained by the private creditors of Mr. Nicholson which remained unsatisfied on the records. On some of these judgments executions were issued and levies made on the real estate of the defendant prior to the executions levied by the state on the same lands. Mr. Nicholson was arrested under executions by private creditors, and died in prison in December, 1800. His heirs were then minors, and they all left the state prior to 1804.

The Legislature of Pennsylvania passed, at different periods, laws for the settlement of accounts and the collection of debts due to the state. By an act passed on 18 February, 1785, it was provided

"That the settlement of any public account by the comptroller, and confirmation thereof by the supreme executive council, whereby any balance of sum of money shall be found due from any person to the commonwealth shall be deemed and adjudged to be a lien on all the real estate of such person throughout this state in the same manner as if judgment had been given in favor of the commonwealth against such person for such debt in the supreme court, and if, after an appeal from the said settlement of accounts by or award of the said comptroller general and confirmation thereof by the supreme executive council, the said settlement shall be confirmed, the said supreme court shall award interest thereon from the date of the confirmation of the said settlement of account by the supreme executive council, and costs to be paid by the

Page 32 U. S. 472

appellees."

By the sixth section of this act, if the governor is dissatisfied with a settlement or of opinion that a legal discussion will tend to the furtherance of justice, he may direct a suit, which shall be proceeded in as in other civil actions. By an act passed 1 April, 1790, the office of register general having been created, all accounts were first to be settled by him, and afterwards examined by the comptroller general, and then transmitted to the executive council for its approbation. And by the fifth section, all settlements under this act shall have the same force and effect and be subject to the same appeal as those made formerly by the comptroller general. After the passage of these acts, the constitution of the state was changed and the executive power was vested in a governor instead of the executive council. On 14 January, 1791, an act was passed by which all duties directed to be done by the president and executive council shall be done by the governor. This act was limited to the end of the session.

On 13 April, 1791, the Act of 1 April, 1790, was continued to the end of the then session, but with a proviso that in all cases where accounts examined and settled by the comptroller and register or either of them have heretofore been referred to the executive authority, to be by it approved and allowed or rejected, the same shall only in future be referred to the governor when the comptroller and register shall differ in opinion; but in all cases where they agree, only the balances due on each account shall be certified by the said comptroller and register to the governor, who shall thereupon proceed in like manner as if the said accounts had been referred to him according to the former laws on the subject, and provided always that in all cases when the party or parties shall not be satisfied with the settlement of the accounts by the comptroller and register, or when there shall be reason to suppose that justice has not been done to the commonwealth, the governor may and shall, in like manner and upon the same conditions as heretofore, allow appeals or cause suits to be instituted, as the case may require. By the Act of 28 March, 1792, this law was continued until the end of the next session. By two other acts it is continued to the end of the session of 1793-1794.

Page 32 U. S. 473

An act was passed 22 April, 1794, reciting that under the old constitution, acts were passed vesting powers in the executive council or president, and that it was expedient such powers should be vested in the governor, which enacts

"That in all cases where, by the laws of the commonwealth, the supreme executive council, or the president or vice-president thereof, is mentioned as having power and authority to carry the same into effect, the governor for the time being shall be deemed and taken to be in the place and stead of the same supreme executive council, or the president or the vice-president thereof, and shall have and exercise all the powers in them, or any or either of them, vested, unless such powers have been and are by law vested in some other officer or officers, person or persons, or shall be inconsistent with the provisions contained in the existing constitution of the commonwealth. By this act, all accounts are in the first instance to be submitted to the register, who shall adjust and send them to the comptroller, who, if he approve the settlement, shall return the same to the register. But if he disapprove and they cannot agree, shall transmit the same to the governor, who shall decide, provided that in all cases where the parties shall be dissatisfied with the settlement of their accounts, an appeal shall be allowed."

On 31 March, 1806, an act was passed by the Legislature of Pennsylvania entitled "an act for the more speedy and effectual collection of certain debts due to this commonwealth." The following is a summary of the first ten sections of that act.

Sec. 1. Commissioners appointed with powers to procure copies of deeds and other writings relating to the real estate of John Nicholson.

Sec. 2. The commissioners to receive, on application, copies of all necessary papers, from the land officers, without fees.

Sec. 3. To ascertain as near as may be the quality and extent of the estate of John Nicholson in each county, subject to the lien of the commonwealth.

Sec. 4. To average the demand of the commonwealth on the several estates subject to the lien and make report to the governor, who shall cause the same to be sold, &c., on the payment of the sum assessed on any particular estate by any person claiming an interest therein, the commissioners empowered to convey to such persons the estate or lien thereon.

Sec. 5. Where the commissioners shall

Page 32 U. S. 474

be authorized to compromise with individuals or the managers of land companies.

Sec. 6. In what cases the commissioners may purchase in the property for the use of the state.

4th, 5th and 6th sections repealed and supplied.

Sec. 7. Commissioners to take oath or affirmation for the faithful discharge of their duties.

Sec. 8. Their compensation.

Sec. 9. Empowered to recover, by due course of law, books and papers, &c.

Sec. 10. Commissioners of the several counties prohibited from selling any of the lands of John Nicholson for taxes.

Sec. 11. And be it further enacted that in any case where the said John Nicholson, in his lifetime, had or held lands in partnership or in common with any other person or persons, the said commissioners, or a majority of them, are hereby authorized to cause partition to be made of the said land, by writ of otherwise, in order to ascertain the respective interests of the said part-owners, as well as the separate interest of the said John Nicholson, and if it shall be necessary to make said partition by writ, in case of disagreement between the parties, the said commissioners or a majority of them, shall be made parties to such writ, either plaintiffs or defendants, and such partition, so made, shall be as available in law as if the same had been made by the said John Nicholson in his lifetime, and the costs thereof shall be paid equally by the parties, as in other cases, and the said commissioners shall be allowed for their part of such costs in the settlement of their accounts.

Further legislating on this subject, on 19 March, 1807, an act was passed entitled "A supplement to an act, entitled An act for the more speedy and effectual collection of certain debts due to this commonwealth.'"

"Sec. 1. Be it enacted that the commissioners appointed under the act to which this is a supplement shall make report of their proceedings to the governor, who, on approbation thereof, shall issue one or more process to the said commissioners, commanding them or a majority of them to sell such lands or interest in lands, as the said commissioners may specify in their report as the property of the late J. Nicholson, and in all cases of sales to be

Page 32 U. S. 475

made by the commissioners, or a majority of them, at least twenty days' notice shall be given of the time and place of sale, by advertisement in the newspaper printed in the county where the lands respectively lie, if any be there printed, and if not in the newspaper printed nearest to such county, and also in two papers printed in the city of Philadelphia, provided that nothing contained in this section shall operate to abridge the powers of compromise vested in the said commissioners by the fourth section of this act."

"Sec. 2. In all cases of sales under this act, the purchaser or purchasers shall pay the amount of the purchase money into the state treasury, and the payment of no part of the purchase money shall be deferred for a longer time than four years, and whenever any part shall be deferred for any length of time within that period, which is hereby referred to the discretion of the commissioners or a majority of them, immediately superintending any sale, such deferred payments shall carry interest from the time of the sale and shall be secured by bonds given by the purchaser or purchasers, with surety approved by the commissioners or a majority of them as aforesaid, payable to the treasurer of the commonwealth and delivered to the said commissioners or a majority of them at the time of sale, and the said commissioners or a majority of them shall, on the receipt of the bonds aforesaid, deliver to every purchaser a certificate of the property sold to him, the time and place of sale, and the bonds received, and shall also deliver into the hands of the treasurer, within two months from the time of sale, all bonds received for or on account of such sales, and within the same time make a particular return into the office of the secretary of the commonwealth, to the process of the governor, of the quantity of land sold, the situation thereof, the price at which it was sold, and how paid or secured, which said process and return shall be carefully registered and filed by the said secretary, who is hereby required, upon the application of any purchaser or purchasers or any person on his or their behalf, on production of the certificate aforesaid and the treasurer's receipt for the consideration of the purchase, to make and execute a deed or deeds to the purchaser or purchasers for the property sold to him or them as and for such estate as the said John Nicholson had or held the same at the

Page 32 U. S. 476

time of the commencement of the liens of the commonwealth against the estate of the said John Nicholson, which said conveyances, or copies of the records thereof, shall be prima facie evidence of the grantee's title, provided that the respective bodies or tracts of land sold under this act shall be subject to the payment of the purchase money thereof."

"Sec. 3. The said commissioners or a majority of them are hereby authorized and empowered to expose any body of lands late the property of the said John Nicholson, late deceased, which are subject to the lien of the commonwealth to sale under and by virtue of the process to be issued by the governor as aforesaid, either in gross or by separate tracts as to them or a majority of them may appear most advisable."

"Sec. 4. The said commissioners or a majority of them shall have full power to settle, by compromise or otherwise, with any person or persons who in any manner may allege title to any of the lands late the property of the aforesaid John Nicholson, deceased, on such terms as to them may appear most eligible, and their proceedings therein shall be final and conclusive on the commonwealth, and upon any compromise made with any person or persons, the said commissioners or a majority of them, at the request of the party and upon his or their paying the consideration money into the state treasury or securing the payment of the same may and shall execute and deliver an assignment under their hands and seals of so much of the liens of this commonwealth against the estate of the late John Nicholson as may be equivalent to the consideration paid or secured to be paid as aforesaid by such party, and from the date of such assignment, the whole amount thereof shall be principal, bearing legal interest, and the holder or holders of such assignments, or his or their assigns may at any time proceed upon the liens of this commonwealth to sell the lands which may constitute the subject of such compromise."

"Sec. 5. If the commissioners, or a majority of them, should be of opinion that it would be more to the advantage of the commonwealth to purchase any of the property to be offered to sale under this act for the use of the commonwealth than to suffer the same to be sold for a sum less than the estimated value thereof, they or a majority of them are hereby empowered so to do, and in this as in cases of sales to individuals, the

Page 32 U. S. 477

commissioners are enjoined to make a special return into the office of the secretary, who shall, as in other cases, register the return, which shall vest in the commonwealth all the title to the property so purchased, which the said John Nicholson had therein, at the date of the commonwealth's liens, and the lands so purchased shall be disposed of in such manner as shall hereafter be directed by law, provided that no purchase, either directly or indirectly, shall be made in behalf of the commissioners aforesaid in their own right, nor shall any of the property of John Nicholson be vested in them otherwise than as in trust for the commonwealth. The succeeding sections have no application to the questions in this case."

The court charged the jury:

"1. That the accounts between John Nicholson and the commonwealth or some of them were so settled and adjusted that the balances or sums of money thereby found due to the commonwealth were good and valid liens on all the real estate of John Nicholson throughout the State of Pennsylvania."

"2. That the judgments rendered by the supreme court of the state in favor of the commonwealth against John Nicholson also constituted good and valid liens upon all his real estate throughout the state. That the several acts of the General Assembly of Pennsylvania, passed on 31 March, 1806, and on 19 March, 1807, are not repugnant to nor in violation of the Constitution of the United States or of Pennsylvania, but that they are good and valid laws and a rightful exercise of the powers of the Legislature of Pennsylvania; that the whole law of the case is therefore in favor of the defendants."

The defendants were purchasers of the land for which this suit was instituted under the provisions of these laws.

The case was tried in October, 1828, and a verdict and judgment under the charge of the court were rendered for the defendants. The plaintiffs excepted to the charge of the court

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on the points stated at large in the arguments, and in the opinion of the court. Exceptions were also taken during the trial to the ruling of the court in matters of evidence, which also sufficiently appear in the arguments of counsel and the opinion of this Court.

Page 32 U. S. 540

MR. JUSTICE JOHNSON delivered the opinion of the Court.

This case comes up by writ of error from the Circuit Court of the United States of Pennsylvania, in which the plaintiffs here, were plaintiffs there. The plaintiffs make title as heirs of John Nicholson, and the defendants, as purchasers under certain commissioners, constituted by a law of that state for the purpose of selling the landed estate of John Nicholson, in satisfaction of certain liens which the state asserted to hold on his lands. The plaintiffs controvert the validity of that sale:

1st. As violating the Constitution of Pennsylvania.

2d. As violating the Constitution of the United States.

3d. As inconsistent with the principles of private rights and natural justice, and therefore void, though not to be brought within the description of a violation of any constitutional stipulation.

Page 32 U. S. 541

1. To maintain the argument upon which the counsel for plaintiffs rely to establish the unconstitutional character of the acts under which the sale was made to defendants, the plaintiffs' counsel commence with an effort to remove out of his way the liens to satisfy which the legislature professes to pass the acts authorizing the same. It appears from the record that at the time of passing the acts which constituted this board of commissioners, to-wit, in 1806 and 1807, the state claimed to hold four liens upon the lands of John Nicholson.

1st. A judgment for special damages, amounting to �42,08l. 8s., entered December 18, 1795.

2d. A settled account of March 2, 1796, for $58,429.24, afterwards reduced to $51,209.22.

3d. Another settled account of December 20, 1796, for $63,727.86. And

4th. A judgment confessed and entered March 21, 1797, for $110,390, with certain special matter attached to the confession, wholly immaterial to the present controversy. The evidence of dated and circumstances might seem to lead to the opinion that the first judgment, or the consideration of it, was incorporated into the settlements, and that the judgment of 1797 covered the whole. But of this there is no sufficient evidence, and the several liens must, on the facts in proof, be considered, as they are exhibited on the record as substantive and independent.

By a law of Pennsylvania of February 15, 1785, settlements made by the comptroller, with certain prescribed formalities, are declared to be liens upon the real estate of the debtor "in the same manner as if judgment had been given in favor of the commonwealth against such person, for such debt, in the supreme court." A right of appeal is given if the debtor is dissatisfied with injunction that the court shall give interest for the delay, if the appeal is not sustained, but unless such appeal is made and judgment against the debtor, there is no

Page 32 U. S. 542

provision in the law of enforcing satisfaction of the lien by sale or otherwise. It is made to be a dead weight upon the hands of both debtor and creditor, without the means of relieving the one or raising satisfaction for the other.

A great proportion of the argument for plaintiffs, both here and below, was devoted to the effort to prove that the two settlements enumerated were not subsisting liens, at the time of passing the two acts of 1806 and 1807, under which the sale was made to the defendants. But from this, as a subject of adjudication, we feel relieved by the two decisions cited from the 4th volume of Yeates' reports, since it appears that this very lien of 3 March, 1796, has been sustained by a decision of the highest tribunal in that state as long ago as 1803 (Smith v. Nicholson), and that again in 1805, this decision was considered and confirmed and acted upon in another case in which the several applications of the principles established in the first case came under consideration. United States v. Nicholls.

Now the relation in which our circuit courts stand to the states in which they respectively sit and act is precisely that of their own courts, especially when adjudicating on cases where state lands or state statutes come under adjudication. When we find principles distinctly settled by adjudications, and known and acted upon as the law of the land, we have no more right to question them or deviate from them than could be correctly exercised by their own tribunals.

It is proper here to notice a relaxation of this principle into which the court below seems to have been surprised, and in which the argument of counsel in this cause was calculated to induce this Court to acquiesce. In the case first decided in the Supreme Court of Pennsylvania, to-wit, that of Smith v. Nicholson, 4 Yeates 8, most of the arguments made use of in this cause to get rid of the lien of the settlement, and particularly that of a repeal of the act of 1785, or a want of compliance with its requisitions, were pressed upon that court and carefully examined and disposed of by the judges. But there have been a variety of other grounds taken in the court below in this cause, and again submitted to this Court in argument, which do not appear from the report of that decision to have been brought to the notice of the state court. Such were

Page 32 U. S. 543

the want of notice of the settlement, the want of its being entered in the books of the accounting officer; the balance not being struck in dollars and cents; that the order of settlement was reversed; and as the plaintiffs' counsel proposed to establish by evidence, that it was not a final and conclusive adjustment of all the existing debits and credits between the parties. Into the examination of most of these arguments the court below has entered with a view to estimating and repelling their sufficiency to shake the settlement in which the lien of the settlements is claimed. But we cannot feel ourselves at liberty to pursue the same course, since it supposes the existence of a revising power inconsistent with the authority of adjudications on which the validity of those liens must now be placed. The rule of law being once established by the highest tribunal of a state, courts which propose to administer the law as they find it are ordinarily bound in limine to presume that whether it appears from the reports or not, all the reasons which might have been urged pro or con upon the point under consideration had been examined and disposed of judicially.

It is next contended that the judgment of March, 1797, had absorbed or superseded the liens of the settled accounts. This ground they proposed to sustain by giving in evidence the journals of the House of Representations of the commonwealth exhibiting certain reports of the register general and of the committee of ways and means, conducing to prove that this judgment was rendered for the identical cause of action on which the settlements were founded. This evidence was rejected by the court, and that rejection constitutes one of the causes of complaint on which relief is now sought here. But this Court is satisfied that, supposing the evidence of these journals sufficient to prove the identity and in other respects unexceptionable, establishing that fact would not have benefited the cause of the plaintiffs. On this point there is an unavoidable inference to be drawn from the case of United States v. Nicholls, for in that case the lien of a settlement of prior date in favor of the state was sustained against a subsequent mortgage to the United States, although, as the case shows, there was a judgment upon the same cause of action with the settlement, of a date subsequent to the mortgage to the United States, and obtained upon an appeal from the settlement.

Page 32 U. S. 544

Mr. Dallas, for the United States, argue, that this appeal suspended the lien, but no one seems to have imagined that the judgment superseded or absorbed the settlement. If to this be added what was asserted by defendants' counsel and acquiesced in by the plaintiffs', that by a settled law of Pennsylvania a judgment in an action of debt upon a previous judgment does not destroy the lien of the first judgment, it puts this question at rest.

In approaching the acts of 1806 and 1807, we are then authorized in assuming that at the time they were passed, the state held unsatisfied liens upon the lands of John Nicholson to a large amount under the two settlements of 1776, without any legal means of raising the money by sale, and also judgments to a great amount which, by reason of the death of Nicholson and the want of a personal representative, they were equally precluded from all ordinary means of having satisfied. Thus circumstanced, the legislature passed those acts, the professed and unaffected and only object of which was to raise, from the sale of John Nicholson's land, money sufficient to satisfy the liens of the state. In justice to the moral as well as legal and constitutional character of those laws, it is proper to give an outline of their provisions.

It is obvious from the evidence in the cause that between the date of the settled accounts and the passing of those acts, great changes had taken place in the possession and property of the lands of John Nicholson. Whether in any or all the cases of such change of property the tracts sold became discharged of the liens of the state or not is not now the question; if they were, the holders were at liberty to assert their rights against the state. In this case, no such discharge is set up; the tract was one that had remained the property of Nicholson. There were then three interests to be regulated -- first, that of the state; second, that of the persons in possession; and third, that of the heirs of Nicholson. That the state was not unmindful of the last is distinctly shown by the offer of compromise tendered to the family, before the act of 1806 was passed, and by adopting a mode of sale, calculated as much as possible to avoid throwing back the purchaser upon the heirs for damages, where sales had been made by their ancestor. Hence, the plan of the act of 1806 was this: first, to ascertain

Page 32 U. S. 545

all the lands affected by lien throughout the state; then to assess each ratably, according to the amount of the debt, instead selling each and all as they could be discovered, at the same time allowing a discretion in the commissioners to compromise with persons claiming an interest in the lands and to assign over an interest in the lien proportionate to the sum received upon such compromise, of course obviating so far the necessity of a resort to a sale or to litigation.

Here there was a general offer to all persons claiming an interest in these lands of a release from the lien, upon paying the sum thus assessed ratably and according to value, and it was only when the offer was not accepted or where no one claimed an interest that the general power to sell came into exercise. Nor was it then to be exercised until after a report made to the governor, and under process issuing from him; ample notice was required to be given of the sale, and a credit not exceeding four years allowed. It is true that by the terms of these acts, the power of selling is extended to

"any body of lands, late the property of the said John Nicholson, deceased, which are subject to the lien of the commonwealth under and by virtue of process to be issued by the governor either in gross or by separate tracts as to them, or a majority of them, may appear most advisable,"

but there is nothing which authorizes or requires the commissioners to sell all the lands of J. Nicholson or an acre more than what is necessary to satisfy the liens, and so the words just recited import, since after raising by sale enough to satisfy the liens, it could no longer be predicated of any of those lands that "they are subject to the liens of the commonwealth," in the language of the section which gives the power to sell. And it is true also that the money is required to be paid by the purchasers into the treasury, but this is obviously a measure solely intended to secure the proceeds from again falling into dangerous hands, and if the power to sell be limited, by its very nature and terms, to the raising of enough to satisfy these liens, on what ground can exception be taken to this precaution? How can it work an injury to heirs or creditors, to say nothing of a reasonable dependence upon the justice and good faith of the country to refund any surplus, supposing the commissioners were at liberty to raise a surplus by sale.

Nor can any reasonable exception be taken to the

Page 32 U. S. 546

discretionary power given to sell "in gross, or by separate tracts" when it is considered how very possible it was that sales might be effected in gross when they could not be made in detail. Speculators might not be induced to adventure otherwise, and the separation of contiguous tracts might often destroy or diminish the value of each.

After presenting this expose of the design and operation of these laws, we shall search in vain, in the constitution of the state or the United States or even in the principles of common right, for any provision or principles to impugn them, and on this point I am instructed to report it as the decision of this Court that the words used in the Constitution of Pennsylvania in declaring the extent of the powers of its legislature are sufficiently comprehensive to embrace the powers exercised over the estate of Nicholson in the two acts under consideration, and that there are no restrictions, either express or implied, in that Constitution sufficient to control and limit the general terms of the grant of the legislative power to the bounds which the plaintiffs would describe to it.

For myself individually, I must use the privilege of assigning the reasons which claim my concurrence in that opinion. The objection made to the exercise of this power is that it is one of a judicial character, and could not exist in the legislature of a country having a constitution which distributes the powers of government into legislative, executive, and judicial. I will not pause to examine the question whether the subjection of property to the payment of judgments be in fact a matter appertaining essentially to judicial power or whether, after deciding that the debt is due, the judgment action does not cease, and all that follows is the exercise of legislative or executive power; another view of the subject will, in my opinion, dispose of this question.

The power existing in every body politic is an absolute despotism; in constituting a government, the body politic distributes that power as it pleases and in the quantity it pleases, and imposes what checks it pleases upon its public functionaries. The natural distribution and the necessary distribution to individual security is into legislative, executive, and judicial, but it is obvious that every community may make a perfect or imperfect separation and distribution of these powers, at its will. It has pleased Pennsylvania, in her constitution,

Page 32 U. S. 547

to make what most jurists would pronounce an imperfect separation of those powers; she has not thought it necessary to make any imperative provision for incorporating the equity jurisdiction, in its full latitude, into her jurisprudence, and the consequence is, as it ever will be, that so far as her common law courts are incapable of assuming and exercising that branch of jurisdiction, her legislature must often be called upon to pass laws which bear a close affinity to decrees in equity. Of that character are the acts of 1806 and 1807 under consideration. The relations in which the state and John Nicholson's estate stood to each other presented a clear case for equitable relief -- a lien on the one hand, and property to satisfy it on the other -- but no common law means of obtaining a sale. Thus circumstanced, is there anything in the Constitution of Pennsylvania to prevent the passing of these laws?

When it is intimated that the separation of the primary powers of government is incomplete under the Constitution of Pennsylvania, it may be necessary to submit a few observations explanatory of the idea. It is true that the separation of common law from equity jurisdiction is peculiar to Great Britain, no other of the states of the old world having adopted it. But it is equally true that in no other of the states of the old world did the trial by jury constitute a part of their jurisprudence, and every practical lawyer knows that to give jurisdiction to a court of equity or to distinguish a case of equity jurisdiction from one of common law under the British practice, the averment is indispensable that the complainant is remediless at law. When it is said that the separation of common law from equity jurisdiction is peculiar to Great Britain, it must only be understood that it is there exercised by distinct courts and under distinct forms. For as an essential branch or exercise of judicial power it is acknowledged to exist everywhere; nor is it possible for anyone acquainted with its nature and character, and the remedies it affords for the assertion of rights or the punishment of wrongs, to doubt that the power to exercise it and the means of exercising it must exist somewhere or the administration of justice will be embarrassed, if not incomplete. To administer it through the ordinary powers of a common law court is impracticable, and hence, wherever there exists no provision

Page 32 U. S. 548

in the jurisprudence of a country for its full exercise, the consequence must ever be that after the common law courts have engrafted into their practice as much as can be there assumed, the legislature is compelled to exercise the rest or else leave a large space for the appropriate field of judicial action unoccupied.

A specimen of this will be found in the early legislation of the State of South Carolina, in which, before the establishment of a court of equity, laws are frequently found authorizing administrators or others to sell lands for the payment of debts and for similar purposes. And it has been admitted in argument that similar laws are of frequent occurrence in Pennsylvania. The provisions of the Constitution of that state on the subject of legislative and judicial power, are as follows. Art. 1, § 1. "The legislative power of this commonwealth shall be vested in a general assembly, which shall consist of a Senate and House of Representations." Art. 4, § 5.

"The judicial power of the commonwealth shall be vested in a supreme court, in courts of oyer and terminer and general jail delivery, in a court of common pleas, orphans' court, register's court, and a court of quarter sessions of the peace of each county, in justices of the peace, and in such other courts as the legislature may from time to time establish."

Art. 4, § 1.

"The supreme court and the several courts of common pleas shall, besides the powers heretofore usually exercised by them, have the powers of a court of chancery so far as relates to the perpetuating of testimony, the obtaining of evidence from places not within the state, and the care of the persons and estates of those who are non compos mentis, and the legislature shall vest in the said courts such other powers to grant relief in equity as shall be necessary, and may from time to time enlarge or diminish those powers or vest them in such other courts as they may judge proper for the due administration of justice."

It is clear from these quotations that the legislature possess all the legislative power that the body politic could confer, except so far as they are restricted by the instrument itself. It is really clear that the constitution recognizes the distinction between common law and equity powers, and the existence of equity powers beyond what it has vested in the supreme court.

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But what provision has it made for the exercise of those powers? No other than this that the legislature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary. But where is the limitation prescribed to the legislature in judging of the necessity of vesting such powers? They have not thought it necessary to invest their courts with such powers, and if the reason which influenced them in judging it unnecessary was that they held themselves competent to afford the necessary relief by the exercise of legislative power, where is the restriction in the constitution that controls them in thus extending or applying the powers with which they hold themselves to be constitutionally vested? They are sought in vain.

Again,

"They may from time to time enlarge or diminish those powers or vest them in such other courts as they shall judge proper for the due administration of justice."

Now they have, by the first section of the same article, the power to establish what courts they please, and suppose they thought proper to have vested the whole equity jurisdiction, not specifically disposed of, in a board of commissioners instead of vesting specific powers in such a board, where is the constitutional provision that inhibits such an act of legislation? The plaintiffs contend that it is to be found in the bill of rights of that state or in the Constitution of the United States.

Both those constitutions contain the provision against the violation of contracts, and the plaintiffs' counsel insists that there were three contracts in existence between the State of Pennsylvania and John Nicholson, two of them express and one implied. The first express contract he finds in the acts of 1782 and 1785, which, in giving the lien upon public accounts, declares that they shall be liens "in the same manner as if judgment had been given in the supreme court." This he construes into a contract that they shall be enforced in the same manner as such a judgment, to-wit, by judicial process, and then finds the violation of the contract in the acts which provide for the raising of the money to satisfy those liens by the sale of the land through this board of commissioners. But a single observation, we think, disposes of this exception, which is that the lien of a judgment, of a mortgage, or any other lien is a

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very different idea from that of the means by which the lien is to be enforced; the one is the right, the other is the remedy; the one constitutes the contract and the other the remedy afforded by the policy of the country, where it is not provided by the terms of the contract, for enforcing or effecting the execution of it. The first is unchangeable without a violation of right; the other may be subject to change at the will of the government. And it may be further observed in the present instance that the reference to a judgment in the supreme court is clearly descriptive or illustrative of the meaning of the legislature with reference only to the binding efficacy of the lien given on these public accounts.

The second express contract is found by the plaintiffs in the confession of judgment on 21 March, 1797, and the violation of this also is not enforcing it by judicial process. This is obviously an attempt to give the character of a contract to that which is nothing more than an obligation, or duty, or necessity imposed by the laws of society. The confession of a judgment does indeed create a contract, but it is only on the side of the defendant, who thus acknowledges or assumes upon himself a debt, which may be made the ground of an action. But on the side of the plaintiff, the necessity of resorting to certain means of enforcing that judgment is not an obligation arising out of contract, but one imposed upon him by the laws of the country. Again, it may by answered, if there was in fact such a contract imputable to the state, the performance had become impossible by the act of God and of the party himself by his death and by that confusion of his affairs which prevented everyone from assuming the character of his personal representative.

We proceed to the third, or the implied contract; that which is deduced from the original grant of the land to John Nicholson. This sale, it is insisted, is inconsistent with that contract of grant; that it amounts in fact to a resumption of the land; and in connection with this, the point of inconsistency with the reason and nature of things, was argued and commended upon. The answer which the case there furnishes we think is this: that subjecting the lands of a grantee to the payment of his debts can never impair or contravene the rights derived to

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him under his grant, for in the very act, the full effect of the transfer of interest to him is recognized and asserted; because it is his, is the direct and only reason for subjecting it to his debts.

But it is asserted that in this case, the community sits in judgment in its own cause, when it affirms the debt to be due for which the land is subjected to sale, and then subjects the land to sale to satisfy its own decision thus rendered. This view of the acts of the state is clearly not to be sustained by a reference to the facts of the case. As to the judgment of 1797, that is unquestionably a judicial act; and as to the settled accounts, the lien is there created by the act of men who, quoad hoc, were acting in a judicial character, and their decision being subjected to an appeal to the ordinary, or rather the highest of the tribunals of the country, gives to those settlements a decided judicial character, and were it otherwise, how else are the interests of the state to be protected? The body politic has its claims upon the constituted authorities, as well as individuals; and if the plaintiffs' course of reasoning could be permitted to prevail, it would then follow that provision might be made for collecting the debts of everyone else, but those of the state must go unpaid whenever legislative aid became necessary to both. This would be pushing the reason and nature of things beyond the limits of natural justice.

It is next contended that the acts of 1806 and 1807 are unconstitutional and void because contrary to the ninth section of the Pennsylvania bill of rights, which provides, in the words of Magna Charta, that no one shall be deprived of his property but by the laws of the land. This exception has already been disposed of by the view that has been taken of the nature and character of those laws. It has been shown that there is nothing in this provision either inconsistent with natural justice or the constitution of the state; there is nothing of an arbitrary character in them.

They are also charged with being contrary to the ninth article of the amendments of the Constitution of the United States and the sixth section of the Pennsylvania bill of rights, securing the trial by jury. As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled

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that those amendments do not extend to the states, and this observation disposes of the next exception, which relies on the seventh article of those amendments. As to the sixth section of the Pennsylvania bill of rights, we can see nothing in these laws on which to fasten the imputation of a violation of the right of trial by jury, since, in creating the lien attached to the settled accounts, the right of an appeal to a jury is secured to the debtor, and as to the inquest given under the execution law, with a view to ascertaining if the rents and profits can discharge the debt in a limited time, as a prelude to the right of selling, we are well satisfied that there is no more reason for extending the provision of the amendment to that inquest than there would be to the inquest of a coroner or any other mere inquest of office. The word "trial," used in the sixth section, clearly points to a different object, and the distinction between trial by jury and inquest of office is so familiar to every mind as to leave no sufficient ground for extending to the latter that inviolability which could have been intended only for the former. The one appertains to a mere remedy for the recovery of money, which may be altered at any time without any danger to private security; the other is justly regarded in every state in the Union as among the most inestimable privileges of a freeman.

The two remaining grounds urged for impugning the constitutionality of these laws have been disposed of by observations already made.

It only remains to consider the point made upon the rejection of certain evidence proposed to be introduced, the object of which was to invalidate the settled accounts by showing that in fact the accounts between the state and Nicholson never were settled -- that is, finally and conclusively settled. Here again, as was remarked of the evidence already considered, admitting the fact proposed to be proved, what could it avail the party in this suit? So far as the accounts were settled and certified, the law gave the lien for the amount certified; and why should that benefit be deferred until the last possible shilling in dispute should be finally passed upon; delayed perhaps until lost, or until the debtor could no longer parry the decision,; and thus give a preference to others at his will? If, then, the fact intended to be established by the evidence

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could not have availed the plaintiffs, the court could have committed no error in rejecting it, whatever may have been the reasons given for the rejection.

We are of opinion that there is no error in the judgment below, and it will accordingly be

Affirmed with costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Pennsylvania, and was argued by counsel, on consideration whereof it is ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.

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