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
Page 32 U. S. 478
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.
Page 32 U. S. 549
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
Page 32 U. S. 550
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
Page 32 U. S. 551
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
Page 32 U. S. 552
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
Page 32 U. S. 553
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.
