Error to the Circuit Court for the Eastern District of Pennsylvania. 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 seised 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 the 13th of April 1782, John Nicholson was, by an act of the legislature of Pennsylvania, appointed comptroller-general of the state, and was intrusted 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 the 19th of April 1794, resigned the office. By accounts stated, on the 19th of November 1796, large 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 per cent. 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 indorsements, 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 the 18th of December 1795, for 4208l. 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 the 20th of March 1797, on the following agreement, signed by the attorney-general of the state, and by the counsel for the defendant. '21st of March 1797: By agreement filed, the judgment is for the sum of $100,390.89, rating the stock as follows, six per cent. at sixteen shillings and nine pence in the pound; three per cent. at ten shillings; militia certificates at fifty per cent.; and that, in the set-off, 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 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 the 8th of March 1796, when the first settlement of the accounts of John Nicholson was made, and the 21st of 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 the 18th of 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 donfirmed, 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 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 1st of April 1790, the office of register-general having been created, all accounts were first to be settled by bim, 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 the 14th of 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 the 13th April 1791, the act of 1st 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 28th 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 1793-94. An act was passed, 22d 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 the 31st of 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. § 1. Commissioners appointed, with powers to procure copies of deeds and other writings, relating to the real estate of John Nicholson. § 2. The commissioners to receive, on application, copies of all necessary papers, from the land-officers, without fees. § 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. § 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. § 5. When the commissioners shall be authorized to compromise with individuals, or the managers of land-companies. § 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. § 7. Commissioners to take oath or affirmation for the faithful discharge of their duties. § 8. Their compensation. § 9. Empowered to recover, by due course of law, books and papers, &c. § 10. Commissioners of the several counties prohibited from selling any of the lands of John Nicholson for taxes. § 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 the 19th of 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." § 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 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. § 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 hehalf, 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 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. § 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. § 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. § 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 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 the 31st of March 1806, and on the 19th of 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.*fn1 The plaintiffs excepted to the charge of the court, 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. The case was argued by C. J. Ingersoll, with whom also was Taney, for the plaintiff; and by Binney and Sergeant, for the defendants.
The opinion of the court was delivered by: Nor are they countenanced by any adjudication. The case of Stoddart v. Smith, 5 Binn. 355, on which the circuit court relied, was that of a prior and a general act, not interfering with any judicial proceeding. Such also was the case of Emerick v. Harris, 1 Binn. 416, sustaining the arbitration law, on the ground, that though it postpones, it does not take away the trial by jury. In the Bank of Columbia v. Okely, 4 Wheat. 235, a prior and a general law authorizing the bank to issue summary executions against its debtors was sanctioned by this court, on the principle, that such was part of the original contract. This case is fully explained by Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. 342. The Providence Bank v. Billings, 4 Pet. 514, determined, that a state may tax a bank which it had chartered, because the state power of taxation is part of the original contract. Jackson v. Lamphire, 3 Ibid. 280, decides, that a general act, authorizing commissioners to settle all disputes in one county, is not unconstitutional. But, in the opinion of the court, pronounced in that case, it is said, that, even recording and limitation acts, though within the discretion of the legislature, may be so unreasonably enacted, as to require a judicial check. The difference is plain between this New York and this Rhode Island case, and the case in question; but, the very circumstance of their being contested, proves with what extreme jealousy all exceptive and ex post facto laws are viewed in courts of justice. There are several cases in the Pennsylvania reports which may be referred to as countenancing the acts against Nicholson; but upon examination every one of them will be found distinguishable. Underwood v. Lilly, 10 Serg. & Rawle 97; Bambaugh v. Bambaugh, 11 Ibid. 192; Barnet v. Barnet, 15 Ibid. 72. By posterior act, the legislature might have raised an administrator to Nicholson's estate, without requiring security, as usual; might have directed the sheriff to sell, dispensing with the ordinary methods and stages of execution; might have substituted the governor's warrant for the judicial writ of execution. But, however the process might have been changed, it could not be annulled. The contract required judicial proceeding, and could be satisfied with none other. Whenever an individual enters into a contract, he assents to abide by the administration of justice common to the jurisprudence of his country, but to none other. 12 Wheat. 285.
C. J. Ingersoll, for the plaintiffs.–By the agreement under which this case was tried, both plaintiffs and defendants claim under Nicholson, whose title is admitted, unless divested by the alleged lien and proceedings of the state which create the defendants's title.
For the plaintiffs, it will be submitted, first, that the acts of assembly in question are unconstitutional; secondly, that the state had no lien; and thirdly, that the court erred in ruling certain points of evidence.
1. The question of constitutionality. By their act of the 13th of April 1782, the legislature of Pennsylvania conferred on Nicholson extraordinary powers and dnties, judicial and executive, as well as fiscal, by appointing him comptroller-general. 2 Dall. Laws 44; 2 Sm. Laws 19. After twelve years' service in that office, he was accused of misdemeanor, impeached, tried and acquitted; but resigned the 11th of April 1794. Much precipitate and passionate legislation ensued, with a view of recovering certain debts which he was charged with owing the commonwealth; continued by various provisions through a period of fourteen years. The final acts of 1806 and 1807 ordered confiscation of his large real estates, comprehending several millions of acres throughout the state, worth more than twenty times enough to pay all its alleged demands, and all his private creditors; but unconstitutionally sacrificed by commissioners appointed by these acts, at their arbitrary sales, contrary to the due course of law, and uncontrolled by any court of justice, by proceedings altogether extra-judicial; these large estates produced probably little more than paid the commissioners' charges. The same acts also order Nicholson's papers to be seized, wherever met with, and secured in public office; private and official, they have all been in the state's exclusive keeping ever since. Thus stripped, spoiled by the state of all his possessions and titles, character and credit, and imprisoned by private creditors, but resolved not to surrender estates which he knew were much more than sufficient to satisfy his debts, always denying that he was in debt to the state at all, Nicholson languished, till he died in jail, the 2d of December 1800. His widow and minor children went into exile from Pennsylvania; nor was it till lately that they had the means or the courage to seek judicial redress.
As soon as Nicholson was out of office, an act of assembly of 20th April 1794 (3 Dall. Laws 790), made provision for the settlement of his accounts; but neither this act, nor that of 1792 appointing him to office, asserts any lien on his estate. This was done by the 12th section of the act of 13th February 1785 (2 Dall. Laws 251), which declares, that the settlement of any public account by the comptroller-general, and confirmation thereof by the supreme executive council, whereby any balance or 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.
The state is supposed to set up three liens against Nicholson: 1. A fiscal lien by treasury settlement. 2. Judicial lien by judgment in the supreme court. 3. A posthumous lien by operation of law, on Nicholson's death, insolvent, as is charged. Whether, as the act of 1782, appointing Nicholson comptroller-general, creates no lien, that of 1785 could superadd such liability to the original contract between him and the state, will not be made a distinct point; but without waiving, after thus suggesting it, left for the determination of the court.
The act of the 31st of March 1806 (8 Bioren's Laws 166) though entitled an act for the more speedy and certain collection of certain debts due to the commonwealth, is confined to the debts claimed of Nicholson alone. It assumes such debts, without specifying sum, date or any other particular. It also assumes, what is called the lien, without specifying whether fiscal or judicial, or when it accrued. The lien thus assumed, for a debt thus unexplained, is extra-judicially put in force; for though by the fourth section, the sheriffs are appointed to sell the lands, and directed to do so according to due course of law; yet their mandates issue from the governor instead of any court of justice, and the whole proceedings are subject to no judicial control whatever. The supplemental act of the 19th March 1807 (8 Bioren's Laws 208) removes every vestige of judicial proceeding and control. The sheriff's agency is dispensed with. Nothing is said of due course of law; but the commissioners appointed by the act are arbitrarily to realise the avails of the lands, without the agency or control of any court or officer of justice.
Granting the state lien to be, what the act of 1785 declares, like a judgment, may it be thus enforced? The state contends, that these acts of assembly do but accelerate and invigorate the remedy, by provision for putting the lien in force. The plaintiffs insist, that they violate the right. It would be as lawful for the party state to enforce its lien by military power. The state's argument, if it prove anything, proves too much; for it maintains that this lien might be enforced by any means whatever. The plaintiffs submit, that, whatever the proceedings be, however the due course of law may be changed, it cannot be dispensed with. The proceeding must be judicial. Though the state has not specified what lien it relies upon, yet the ninth section of the act of 1807, by assuming the 20th December 1797, as the date, sufficiently proves that its reliance was on the fiscal lien by treasury settlement of that date. Granting either lien, fiscal or judicial, the plaintiffs insist, that it can be only realized by judicial execution. The debtor party cannot be deprived of redress by due course of law, for any complaint he may make. Unquestionably, he is so, by these acts. Their provisions are superfluous; the same power that can enact, may dispense with them; they are the mere machinery of confiscation. If they are constitutional acts, the same power might have dispensed with that machinery, and enacted by one simple provision, that the lands of Nicholson belong to the state. Nor was this machinery even designed for his benefit, but merely to sell the lands, profitably, for the advantage of the state. Due course of law, as that phrase has been understood ever since Magna Charta, means the ancient and established course of law, the established course of judicial proceedings. 2 Inst. 60, 61; 1 Bl. Com. 138-9. It may be said, that Coke, in the passage referred to, means criminal law; but this court put no such limitation on the phrase, but understand it to mean all judicial proceedings whatever, in the case of the Bank of Columbia v. Okely, 4 Wheat. 244.
There were three contracts between the state and Nicholson: 1. That, by the acts of 1782 and 1785, appointing him controller-general, and fixing his liability in case of indebtedness, which was to be a lien like a judgment in the supreme court: 2. That, by the warrant for the land, which was a grant which estops the state from resuming it: 3. By the agreement for judgment entered in open court. By each and all of these contracts, the state bound itself to abide by a lien, after the manner of a judgment; that is, an incumbrance to be judicially realized according to the common process used in due course of law, issuing from a court of justice always open to the complaints of all parties. This is the vital principle of all the three contracts; to be under the jurisdiction of a court of law, empowered to redress any complaints.
The 12th section of the act of 1785 is express, that the lien shall be in the same manner as a judgment in the supreme court; in other words, that it shall be like a judgment, which is an incumbrance, by itself inoperative, until put in action by the execution which crowns it. Wayman v. Southard, 10 Wheat. 23. Execution is necessary for the perfection of judgment, and consequently, indispensable for the beneficial exercise of jurisdiction. It is putting the sentence of the law in force. 3 Bl. Com. 412. In like manner, the agreement confessing judgment, ex vi termini, imports liability to judicial execution; not executive, arbitrary, or contrary to the usual course of judicial process. It may be said, that the language of the act of 1785, giving a lien like a judgment in the supreme court, means nothing more than an incumbrance co-extensive with every county in the state. But this interpretation was rejected in the circuit court, for the obvious reason, that a prior paragraph of the same section of the act provides in terms for that purpose, which, therefore, would not be repeated. Both the fiscal and judicial lines are but executory, jus ad rem, not in re, requiring other process to execute them. There is a right to lien, but not to execution. The obnoxious acts give execution; not such as follows judgment in due course of law, but extraordinary, arbitrary, executive, extra-judicial, and therefore, unconstitutional, execution of the lien.
Such laws, it is submitted: 1. Impair the obligation of contracts, contrary to § 10, art. 1, of the constitution of the United States, and they impair contracts, contrary to § 17, art. 9, of the constitution of Pennsylvania: for these acts, by contravening the latter constitution, avoid all the difficulties into which this court was thrown by the alleged distinction between a contract and the obligation of a contract. 12 Wheat. 239-42, 256-9. 2. They take property and apply it to public use, without just compensation, contrary to § 10, art. 9, of the constitution of Pennsylvania. 3. They deprive of remedy by due course of law for injury done, contrary to § 11, art. 9, of the constitution of Pennsylvania. 4. They violate the right of security in person and papers from unreasonable searches and seizures, contrary to § 8, art. 9, of the constitution of Pennsylvania, and the fourth amendment of the constitution of the United States. 5. They violate the right of trial by jury, contrary to § 6, art. 9, of the constitution of Pennsylvania, and the seventh amendment of the constitution of the United States. Lastly. They violate the fundamental principle of social and political campact, which withholds from a body politic, as from all its individual members, the power to judge in its own cause, and enact exceptive laws, in particular instances, in derogation of the common law.
Thus the obnoxious acts violate, 1st, universal law or common justice; 2d, the constitutional or organic law of this federal union of the states; 3d, the constitutional or organic law of the state of Pennsylvania. In other words, they violate natural, federal and municipal law.
The state rests on a lien, in the same manner as if judgment were given in the supreme court. Manner comes from manier, to handle or execute. It is the way of executing. To be taken in the manner, is to be caught in the execution of an offence. The circuit court considered this phrase a mere pleonasm. But that would violate the first rule of interpretation, which is to give every word of a law, more especially, to every substantive phrase, some meaning. The phrase in question boviously means a lien like a judgment. The mere word lien would do so by itself; that is to say, a binding but inert incumbrance, to be realized by further and final process. According to the argument of the charge itself, the intention was, to make the debt secure by the lien, the settlement being conclusive evidence of the debt, but to be recovered and collected in the ordinary way of a suit, judgment and execution. No attempt was made, during ten years, from 1796 to 1806, to enforce the lien. But the judicial lien was proceeded upon in the manner of a judgment by judicial execution. There were, however, numerous individual executions forestalling it. Whereupon, the acts of 1806 and 1807 undertook to realize the fiscal lien, because it proceded the individual executions.
That a state may be a party to a contract with another state, or a corporation, or one or more individuals, and dealt with accordingly in courts of justice, is the established and familiar law of this country. Fletcher v. Peck, 6 Cranch 132; New Jersey v. Wilson, 7 Ibid. 166; Green v. Biddle, 8 Wheat. 92; Providence Bank v. Billings, 4 Pet. 514; Sturges v. Crowninshield, 4 Wheat. 197. It is also as well settled, that a contract is a compact or agreement between two or more parties, whether communities or individuals, either executed or executory. Fletcher v. Peck, 6 Cranch 136; Green v. Biddle, 8 Wheat. 92; Ogden v. Saunders, 12 Ibid. 297; Farmers' and Mechanics' Bank of Pennsylvania v. Smith, 6 Ibid. 132; Serg. Const. Law 352; Crittenden v. Jones, 5 Hall's Law Journ. 520; Vanhorn v. Dorrance, 2 Dall. 304; Dash v. Van Kleeck, 7 Johns. 490; Pickett's Case, 5 Pick. 65. To be sure, it must be a contract concerning property, not a mere civil contract, such as that of marriage. Dartmouth College v. Woodward, 4 Wheat. 637, 644, 682. But even to forbear is as much a contract as to affirm; and it has been decided, that acquiescence makes a contract. Western University of Pennsylvania v. Robinson, 12 S. & R. 29. Contracts are constructive as well as specific. Ogden v. Saunders, 12 Wheat. 317. Each party acquires a right in the other's promises, whether express or understood. Etymologically, contract means any agreement that draws two or more together. In common understanding, it means any bargain. In law, it means any agreement, on good consideration, to do or forbear any lawful act. 1 Com. on Cont. 1; Powell on Cont. 234; 2 Bl. Com. 442. According to the civil law, it is an agreement which gives an action to compel performance. Wood's Institutes of Civil Law 206; 1 Rutherforth 204, ch. 13; Grotius, lib. 2, ch. 12; Paley, vol. 1, ch. 6, p. 145. Existing law, whether statute, common or customary, affecting a contract in its obligation, construction or discharge, is always part of a contract, though not expressed to be so. Camfranque v. Burnell, 1 W. C. C. 341; Ogden v. Saunders, 12 Wheat. 291. All usages are no more than constructive contracts. The whole common law is little else; the land-titles of Pennsylvania by warrant and survey also. Nicholson contracted with the state that his lands should be bound by a lien; the state contracted with him that the lien should be like a judgment. Such was the contract by the act of 1785, by the warrant of 1794, and by the judgment of 1797. All these were agreements for valuable consideration, concerning private property, like the contracts held sacred and not allowed to be impaired in the various cases before cited. If land is granted by a state, its legislative power is incompetent to annul the grant. United States v. Arredondo, 6 Pet. 738.
Such being the contract, and the law of contracts, without provision in this instance for enforcing it, may that be done extra-judicially? Such enforcement could not have been in Nicholson's contemplation, when he entered into the contract; nor will the law impute to him an anticipation of any unusual, much less extra-judicial execution.
There is a class of laws which are extraordinary, exceptive, and prepotent from the necessity of things; such as laws of revenue, limitation, insolvency, usury, divorce and the like. Perhaps, all contracts for public office are of this class, so far as respects official salaries; though it is not altogether certain, that by the act of 1785 the state could reduce the salary given to the comptroller-general by the act of 1782. This principle is questioned by Chief Justice MARSHALL in the Darmouth College Case, 4 Wheat. 694. For argument's sake, we can afford to concede, with out endangering Nicholson's case, that the state, by subsequent acts might increase his duties, and reduce his salary. But the lien on his private estate could not be affected, without his consent, nor otherwise enforced than as originally agreed.
It is very clear, that the acts in question impair the contract, if there was one. To impair, etymologically from impar, is to render unequal, to make worse; and unquestionably, these acts rendered Nicholson's estate worse. According to adjudications, whatever prejudices the validity, construction, duration, mode of discharge, or even evidence, of an agreement, in any manner or degree, impairs the contract. Ogden v. Saunders, 12 Wheat. 256, 257. Any law which lessens the original obligation impairs it. Ibid. 337. The state will insist on state necessity and state power, its eminent domain. The question is, whether any necessity will justify the exercise of extra-judicial power to enforce a contract which stipulated for the due course of law to enforce it? The acts in question, though rapacious, exceptive, arbitrary, unjust, impolitic and odious, may nevertheless be constitutional. But suppose, a private creditor to have got such a law enacted for the collection of his lien debts, would not the enormity of that law flash conviction of its unconstitutionality? The state must show its superior power, on the tyrant's plea of state necessity, to enact such a law. Yet it is against this very power, dreadful in states, but never to be apprehended from individuals, that the constitutional provisions were intended to guard states, that are not omnipotent even in the regulation of their revenue laws, but restrained by constitutional barrier. Laws of escheat, taxation, attachment, revenue, and the like, though summary, and contrary to the course of common law, for the more speedy and effectual recovery of certain claims, yet are always general in their operation, uniform in their provisions, and subject to judicial control. It is not intended to deny the power of states to modify remedies. Sturges v. Crowninshield, 4 Wheat. 197, 200. The power to alter the modes of proceedings in suits at common law includes the execution of their judgments; Wayman v. Southard, 10 Wheat. 47; and a general superintendence over them is within the judicial province. But even an act of limitation, barring passed decisions, would be void. Society v. Wheeler, 2 Gallis. 141. An act annulling a judgment would be void. Dash v. Van Kleeck, 7 Johns. 490. And in the same case, it is said by Judge THOMPSON, that after the judgment of a court, legislation is incompetent to impose new rules of law. 7 Johns. 496. The distinction between remedy and right so equally divided the judges of this court, in the case of Ogden v. Saunders, 12 Wheat. 213, that it would be hazardous to attempt to define it. But even Messrs. Clay, Livingston, and the other gentlemen who argued that case in contradiction to the argument now submitted, concede, that all the sovereign power of states can be executed only by general, impartial and prospective legislation, not affecting vested rights or past transactions. The extinction of the despotic and iniquitous principle of retrospective legislation was the great object of the constitution; and the supposed distinction between right and remedy is often without foundation, as for instance, a law forbidding the institution of an action, though it seems to act on the remedy, annuls the right. The meaning of the term obligation, is well explained by a recent French author of great authority Toullier on the Civil Law, vol. 1, p. 84. If a state, undertaking to modify a particular law, in effect extinguishes the obligation, this would be an abuse of power, 12 Wheat. 352; nor does power to vary the remedy imply power to impair the obligation. Of this leading but contradictory case, it may be said: 1. That all its argument and illustrations are distinguishable from Nicholson's case, because they look to laws that are general and not exceptive: 2. All the judges agree that ex post facto laws which abolish judicial action are unconstitutional: and 3. That even general laws, such as acts of limitation, are unconstitutional if they impair prior contracts. The cases of Fletcher v. Peck, The Dartmouth College, Sturges v. Crowninshield, and Ogden v. Saunders, are, in principle, supporters of the argument now submitted.
Remedy, as defined by lexicographers, means, literally, to cure. Blackstone speaks of the remedial part of a law. 1 Bl. Com. 55. Right means just claim to anything. Thus, in the language of the law, remedy is always used metaphorically. And the acts in question are not remedial: for they do not cure; they rather affect the right to judicial process, which they take away. Nicholson's contract provides, that the process against him should be judicial, or rather that there should be no proceeding against him but by process. The act of 1785 gives lien, without providing how it should be enforced. Liens are always enforced by process. But the obnoxious acts, instead of supplying a defect of process, abrogate all process whatever, and substitute a commission which is equivalent to confiscation. They might as well have ordered the governor or the militia to seize the lands, or have opened a land-office to sell them. Granting that the acts in question are even remedial, yet they are void, because the abolish judicial remedy. Perhaps, the legislature might erect new tribunals for the more speedy and effectual recovery of the debts said to be due by Nicholson. But they could not erect a tribunal to proceed extra-judicially. Should a state be so insane, says Chief Justice MARSHALL, 12 Wheat. 351, as to shut its courts, would this annihilation of remedy annihilate the obligation of the contract? Granted, that by general legislation, the usual modes of process may be altered or abolished. But the power of a state to modify remedies, does not authorize the substitution to extra-judicial proceedings, instead of due course of law, even by general provision. Suppose the state has judgment against an individual, could an act of assembly authorize the courts of justice to dispense with all the established modes of proceeding, and to realize the debt by arbitrary execution? The proceedings in question are wholly unlike the established law of Pennsylvania. The act of 1700 (1 Smith's Laws 7), carefully regulates the methods of execution; and the arbitration act of 1806, § 11 (4 Ibid. 329), carefully conforms to the provisions of the act of 1700. Courts-martial, prevotal courts, and all special commissions to try even criminals, at least, profess to proceed judicially, even though they differ from common law. It can hardly be said, that the acts in question are revenue laws. But if even they were, the summary process authorized by acts of congress, for the more speedy and effectual collection of the national income is uniformly and thoroughly judicial in its character. Act of 15th May 1820, § 4 (3 U. S. Stat. 595). Such was also the old revenue system; Act of the 9th July 1798, § 16 (1 Ibid. 587). Such was the system of the late war taxation; Act of 1815, § 33 (3 Ibid. 177). Such are all the tax laws of the state of Pennsylvania. It is believed, that no instance can be cited of a stretch of legislative power by vigor, beyond the law, occurring in any of the United States, such as the acts in question.
It is thus supposed to be established: 1st. That there were the contracts of 1785, 1794 and 1797. 2d. That they were impaired. 3d. By extra-judicial enforcement.
In connection with this position it will be convenient to consider the last; to wit, that the acts in question violate the fundamental principles of universal justice. The first and great adjudication on this subject, is Vanhorne v. Dorrance, 2 Dall. 304, which determines, that a party state cannot by legislation alter its contracts; that it is not competent for the legislature of such state, to judge of the necessity of altering such contracts; that no state can take away private property, by special and individual legislation; nor when private property is taken, by even general legislation, can the legislature settle the compensation to be allowed, which must be referred to the impartial umpirage of the judiciary. There is an implied contract between every state and every individual citizen of it, that all laws contrary to natural reason or justice, are void. The English cases on this subject are collected in 1 Kent's Com. 420.
In England, where there is no written constitution, acts of parliament, contrary to natural equity, such as make one a judge in his own cause, are void. Day v. Savadge, Hob. 87. Now, there is no difference between the case of the individual and that of the state, except that as the state is much more formidable, a multo fortiori, should the judiciary prevent its attempts to judge in its own cause. No government of laws is authorized to enact exceptional provisions, striking at one citizen or one family, and depriving them of the benefit of the law common to all the rest. The sovereign people commit no such trust to a legislature. A legislature would be the most dangerous of all despotisms, if it may single out an individual, as in this instance, post factum and post mortem, depriving his family of the law common to all the rest of the community, but closing the courts of justice against that family alone. The first principle of the social compact is, that no one of its members shall do himself justice, but seek it through the public authority with which its dispensation is deposited: hence the maxim, that every citizen is under the safeguard of the law; Toullier, vol. 1, p. 168; and is it not the worst conceivable violation of this principle, for the society in its dispute with an individual to undertake to regulate it itself, without suffering the interposition of the judiciary? The state, on this occasion, in fact, proceeded not in its sovereign capacity, but as a common creditor, and usurped all the powers legislative, judiciary and executive, which in every well-regulated government are always kept distinct. It is high time, to restore the true sense, according to the plain language of the constitution, prohibiting all ex post facto legislation, instead of confining it to criminal cases, as has been generally done, owing to an early but total misapprehension of the law. The provision against ex post facto laws is twice repeated by the constitution of the United States; first, to prohibit congress, and secondly, the several states, from the enactment of such laws. It is also in the constitution of Pennsylvania; the restriction on congress obviously embraces both criminal and civil cases; bills of attainder being used for the one, and ex post facto laws for the other. The clause restricting the states expressly comprehends all ex post facto laws, as well as any bill of attainder. And the context shows that that this clause is dealing with unlimited prohibition. The states surrender the whole power, without reserve. The constitution establishes the general principle of the inviolability of contracts. Ogden v. Saunders, 12 Wheat. 312. The universal law was so, before the constitution, which is but declaratory of it. 12 Wheat. 303-4; Federalist, No. 44. What right then has any judicial magistrate to put upon these provisions of the constitution a limitation not to be found in either the letter or the spirit? The mischievous influence of Blackstone's unsupported dictum, for which no authority can be vouched, but which is contrary to all English law, suggested the ill-considered notion of judicial interpolation that has gained ground in this country. Legislation cannot be retroactive, for then it becomes adjudication. To regulate the past is judicial, to regulate the future is legislative. Toullier, vol. 1, § 1, p. 18. It is a first principle of the jurisprudence of all free people, having written constitutions, that legislation must be prospective and general, not retrospective or individuated. 1 Toullier, 96; Montesq. Esp. de Loix, liv. 11, ch. 6; liv. 6, ch. 5. A Turkish firman, or Russian ukase, by which a community or individual determines and executes his own cause, without judicial intervention, would be contrary to the general sense of mankind.
The instances of laws which are void, as against common right, mentioned in the case Calder v. Bull, 3 Dall. 388, are laws punishing innocent actions, violating existing laws, impairing private contracts, making a person judge in his own cause, taking property from one and giving it to another: authority to make such laws is not among the powers intrusted to legislatures. They cannot revoke their own grants. Terrett v. Taylor, 9 Cranch 45; United States v. Arrendondo, 6 Pet. 728. Even a constitutional power, unreasonably exercised, this court has declared would be void. Jackson v. Lamphire, 3 Pet. 280. Whether an act of legislation must be contrary to the constitution as well as first principles, and whether all ex post facto legislation of the states is void, are questions upon which the federal judges have not been perfectly agreed. Judge CHASE affirms these positions; Judge IREDELL denies them, in Calder v. Bull, 3 Dall. 388-9; Judge PATERSON'S argument, in Vanhorne v. Dorrance, strongly implies his agreement with Judge CHASE, with whom Chief Justice MARSHALL agrees; indeed, it appears to be the judgment of the court, in Fletcher v. Peck, 6 Cranch. 132-3, 135. It is denied by Judge WASHINGTON, in Beach v. Woodhull, Pet. C. C. 6; and in Satterlee v. Matthewson, 2 Pet. 413: yet he appears, in principle, to acknowledge it in Ogden v. Saunders, 12 Wheat. 266-7. In Fletcher v. Peck, 6 Cranch 143, Judge JOHNSON strenously asserts, that the constitution of the United States forbids all ex post facto legislation civil as well as criminal; as he does again in 12 Wheat. 286, and in his elaborate note in 2 Pet. 416. The same ground is most ably occupied by the supreme court of New York in Dash v. Van Kleeck, 7 Johns. 493, 501, 509; and in Stoddard v. Smith, 5 Binn. 370, Judge BRACKENRIDGE says, that the notion of confining ex post facto to criminal laws, is merely American. Certainly, such is not the language of the constitution, nor the spirit, the reason, or the policy. At least, when states are parties to a contract, they ought not to be permitted to enact ex post facto laws concerning it. The supreme court of Massachusetts, in a late case, have added an able argument to their judgment against it. Picquet's Case, 5 Pick. 65.
The acts in question take private property, and apply it to public use, without just compensation; and for injury thus inflicted, they refuse remedy according to the due course of law. It is the common law of all nations, that private property cannot be taken by an act of state, without individual consent or judicial umpirage. Vanhorne v. Dorrance, 2 Dall. 314; Picquet's Case, 5 Pick. 65; Pickering v. Rutty, 1 Serg. & Rawle 511; Hallam's Constitutional History 36. In France, the charter requires idemnity to be paid, before the property is taken. In no country, it is submitted, can even a tax be imposed upon one individual alone.
The acts violate the right of trial by jury; any process to enforce the lien would have called in the heirs, who might have pleaded payment, release or satisfaction, which would have been tried by jury. The court had power, and it is every day's practice, to direct issues to try facts, after judgment. Wherever there is a court of chancery, that might have interposed. But in Pennsylvania, there is no such court, though its principles are recognised and administered. Pollard v. Shaffer, 1 Dall. 214; Ebert v. Wood, 1 Binn. 217; Murray v. Williamson, 3 Ibid. 135; Jordan v. Cooper, 3 Serg. & Rawle 578. The charge denies that there was any fact to try, or that Nicholson's property suffered for want of jury trial. But it is submitted, that the state might have been compelled to prove, as a fact, how much Nicholson remained indebted, if anything. Legal representatives, creditors, terre-tenants, might have applied to the courts, on motion, to question the lumping sales, arbitrary compromises, compulsory partitions, extravagant charges, and other impositions which are inflicted by the obnoxious acts. The heirs of Nicholson contend, that, on a full settlement of accounts, he owes her nothing. Yet all his estates were confiscated, without satisfying her alleged demand, though it is said, that there was no question to try, nor any injustice to complain of.
By his contract with the state, Nicholson was entitled, not merely to judicial enforcement of the lien, but to the established methods of execution. The common law, vouchsafing land from execution, was repealed in Pennsylvania, as early as 1705, by a statute which makes may careful and tender provisions to protect debtors from harsh and hasty proceedings. This long-established law is familiar and dear to the people of that state, and must have been contemplated by both parties when this lien was arranged. 1 Dall. Laws 67; 1 Smith's Laws 57. Every execution, it is expressly provided, shall be like the English elegit. Inquisition and condemnation are indispensable. The charge calls this a boon which the state might revoke at pleasure, and asks who suffered for the want of it in this instance? If it is in the contract, that question does not meet the difficulty, though it is easily answered. Nicholson's family and creditors, and the state, all suffered by its extra-judicial confiscation of his lands. If, instead of being sacrificed at commissioners' sales, they had been sold by due course of law, with all his benignant delays and methods of execution, with opportunity of applying to court to regulate them, and of writ of error to the highest court, there was property enough to have paid all that the state or private creditors demanded of Nicholson, and to have left a principality for his family.
Sales in mass, and not by parcels, as these acts require, are contrary to the established practice of Pennsylvania. Rowley v. Webb, 1 Binn. 61; Ryerson v. Nicholson, 2 Yeates 516. By the acts in question, the commissioners were empowered to average, compromise, seize and sell all the lands, at any sacrifice, buy at their own sales, compel partition, seize all Nicholson's private papers, wherever found; the asylum company are compelled to give up his shares, and the commissioners are stimulated by a bounty of ten per cent. on all the confiscations. An act of legislation assumes that an individual is indebted, assumes a lien for the debt, decrees confiscation of all his estates, enacts a title to purchasers, and forbids all judicial revision. The second section of the act of 1807 declares, that the proceedings, thus consummated, shall be but prima facie evidence of the grantee's title. It is a title by forfeiture, the infirmity of which is acknowledged by the very fact of its creation, which invites judicial ascertainment. But that act excluding all direct means of such ascertainment, none other is left but such as the present action, to determine collaterally the validity of the acts of assembly, thus shown to be unconstitutional and void.
2. It is denied, that the state had any lien against Nicholson, or that he was indebted to it at all; to prove which, his family relied on the treasury books and the following acts of assembly, to show that this accounts remained unsettled when he died in the year 1800, viz: Act of 20th of April 1794, 3 Dall. Laws 700; Act of 4th April 1796, § 12, 4 Ibid. 66; Act of 5th April 1797, § 1, 8, Ibid. 175; Act of 4th April 1798, § 1, 6, Ibid. 268; Act of 11th April 1799, § 4, 7, Ibid. 488. Notwithstanding these provisions, those of the acts of 1782 and 1785, and the exclusive keeping of all Nicholson's papers, of which the state possessed itself, there never was a legal settlement of his accounts, which remain open on the treasury books to this day, and no one can tell upon what settlement the state relies, whether fiscal of judicial. The first judgment of the state, entered the 18th December 1795, was obtained in a suit brought before Nicholson was out of office, in which no execution ever issued, and which expired for want of revival. The fiscal settlements, dated in 1796, are all on stock balances, carried to new accounts, without any settlement in money, as the law requires. They are, therefore, but liquidations of particular accounts, and not a balance of all the respective demands between the parties, struck in money. The agreement of attorneys, by which the judgment was confessed in 1797, stipulates for future settlements, which precludes the idea of actual settlement. The question then is, whether, and how, the state got the lien which it assumed?
Lien is a privilege strictissimi juris, a preference, hold or incumbrance, in the nature of a judgment, not favored in law, nor to be extended by construction. It is dormant, cautionary, and incapable of activity, till put in force by another impulse. It is not specific like a mortgage, jus in re, but general, merely ad rem. It does not levy, dispossess or put in possession, and has none of the properties of execution. Gibbs v. Gibbs, 1 Dall. 371; Blaine v. The Ship Charles Carter, 4 Cranch 332; Thelusson v. Smith, 2 Wheat. 396; Conard v. Atlantic Insurance Company, 1 Pet. 442. Liens, being in derogation of common law, are to be construed strictly, and enforced literally. With respect to them, form is substance. The 12th section of the act of 1785, 2 Dall. 251, requires, that in order to constitute a lien, there must be: 1. debt; 2. settlement; 3. by the proper officers; 4. in the prescribed manner; 5. with notice to the debtor; 6. the whole of whose accounts must be settled; 7. and the balance struck in current money; 8. that balance reported to the executive; 9. and entered at large in the treasury books. Not one of these requisites can be shown in the alleged settlement.
The difficulty the plaintiffs have to contend with here, is not construction of the various provisions of the acts of assembly, which all speak a clear and satisfactory language, but an adverse decision of the supreme court of the state in the case of Smith v. Nicholson, 4 Yeates 6, which decision the circuit court adopted as right in itself, and binding the judgment of the court, even though wrong. It was an abstract question, stated and submitted by agreement of parties, to which the legal representatives of Nicholson were not a party; nor was it determined in the highest court of the state, which, at the time of that decision, was the high court of errors and appeals, since abolished. It would not, therefore, be binding, even in the courts of the state: Bevan v. Taylor, 7 Serg. & Rawle 401. In a controversy between a state and one of its citizens, a court of that state should not deprive him of the benefit of the revision of the supreme court of the United States, provided the case be such as to give the latter jurisdiction. If the laws in question should be deemed invalid by this court, it cannot surrender its judgment to that of the state court. The series of its adjudications on this subject is as follows: McKeen v. Delancy, 5 Cranch 32; Mutual Assurance Society v. Watts's Executors, 1 Wheat. 290; Shipp v. Miller, 2 Ibid. 325; Thatcher v. Powell, 6 Ibid. 127; Elmendorf v. Taylor, 10 Ibid. 159; Jackson v. Chew, 12 Ibid. 162; Inglis v. Trustees of the Sailor's Snug Harbour, 3 Pet. 127; Henderson v. Griffin, 5 Ibid. 155; Cathcart v. Robinson, 5 Ibid. 264; Tayloe v. Thompson, Ibid, 358; Hinde v. Vattier, Ibid. 401; Ross v. McLung, 6 Ibid. 283; Green v. Neal, Ibid. 291.
The principles to be extracted from all these cases are, that they are binding only when they establish general rules of property, perhaps, of evidence, adjudged in the highest state courts, and being, like the common law or acts of assembly, uniform and universal in their operation. But though binding, they are not conclusive; this court is to examine and judge for itself. If the courts of the United States surrender their judgment to those of the states, it is a concession of vast amount. Respect is due, uniformity is desirable; but submission would take from the courts of the United States their supremacy and usefulness. Even state legislation has never been suffered to change the practice of the federal courts. Wayman v. Southard, 10 Wheat. 1. The case of Smith v. Nicholson not having been adjudged by the highest court of the state, not establishing any general rule of property or of evidence, and not adjudging the question presented by this case, is, therefore, not a binding authority. In that case, the question of settlement was taken for granted, together with that of notice; and all the other positions contested in this case, except whether the govervor's sanction is indispensable to him. The general construction and operation of the act of 1785, in connection with all the other acts of assembly which tend to explain it as now submitted, was never presented.
If, notwithstanding these views, this court should uphold the lien, it becomes necessary to inquire, whether it had not expired, before the acts of 1806 and 1807 assumed its existence. The judgment of 1795 expired in 1802, for want of scire facias to revive it. The judgment of 1797 is inconsistent with the fiscal lien of 1796; for can there be two liens for the same debt? lien is a thing incompatible with another title, it is a single hold or incumbrance, excluding all other rights of other claimants, and all other claims of the same claimant, to the thing bound by the lien. A lien-claimant loses his lien, by letting go of it, for an instant, or by taking other security for the debt. Kauffelt v. Bower, 7 Serg. & Rawle 73; Cranston v. Philadelphia Insurance Company, 5 Binn. 540; Ramsay v. Allegre, 12 Wheat. 612; Collins v. Ongley, 3 Selw. N. P. 1163. There may be double security and several remedies, as bond and mortgage, or covenant and distress; Gordon v. Correy, 5 Binn. 552; Bantleon v. Smith, 2 Ibid. 146; but there cannot be two liens for the same thing. It is not a question of extinguishment, but of election. The state was bound to choose, and did choose, relying on the lien by the judgment of 1797, which gave a plain and adequate recourse, instead of the fiscal settlement of 1796, which was involved in doubt and difficulty. The fiscal lien never was set up, until several years after Nicholson's death, when it was found, that the lien of the judgment proved abortive. The only reliance was that judgment, and that was suspended or satisfied in law, by several of the executions under it; one of which was stayed by the plaintiff's order, another not executed by order of the comptroller-general of the state, and a third levied on real estate, which was subjected to inquisition, condemnation, and venditioni exponas, yet outstanding. The general rule of law and reason, under such circumstances, is, that the debt is discharged. Little v. Delancey, 5 Binn. 267. The whole liability is transferred to the sheriff.
It may be, moreover, alleged, that the state has a lien by Nicholson's death insolvent. But first, there is no proof that he died insolvent; and secondly, if he did, all debts due to the commonwealth of Pennsylvania are postponed to all other debts, by the 14th section of the intestate act of 1794. 3 Dall. Laws 357; 3 Smith's Laws 145. The lien was but a debt, in which case, it has been settled by the courts of that state, that it must take its place after certain other debts. Moliere v. Noe, 4 Dall. 450; Scott v. Ramsay, 1 Binn. 221. There were many judgments and liens of individual creditors preceding those of the state, which by law out-rank it; and indeed it was to forestall those very creditors, when their advantages were ascertained, that the legislature recurred to the fiscal lien of 1796, which the acts of assembly assume.
Lastly. There are four exceptions on points of evidence. 1st. The journal of the house of representatives of Pennsylvania was offered, that the same sums and the same stock as claimed under the alleged fiscal lien were claimed in the action of trover. 2d. The same journal was offered, to show the report of a committee to the same effect. 3d. The appendix to another report of a committee was offered, to show that Nicholson's accounts were unsettled. All this testimony was rejected. Office registers, church registers, and parish registers are received in evidence as public documents made by disinterested persons. The books of any public corporation are evidence of its acts and proceedings. Owings v. Speed, 5 Wheat. 420; 2 Stark. Evid. 177. Why, then, are not the acts of the constituted authorities of a state evidence against it? The state took defence in this case; and can it be a well-founded objection, after several laws of the state were read in evidence, that the proceedings of committees of the legislature were not also evidence, because they had not become enactments? The case of Kelly v. Jackson, 6 Pet. 630, is supposed to settle this point.
The ledger of the treasury was offered, to show that the accounts between the state and Nicholson remain unsettled, and rejected, on the ground, that the ledger is not a book of original entries, and that the accounts are incomplete. But as the state was defending its grantees, the defendants, proof from any book or account kept by the officers of the state, whether original or not, and however incomplete, would be good evidence against the state. The error in ruling this point must be imputed to a misapprehension that the ledger was offered by the state, instead of being offered against it.
Binney, for the defendants in error, stated, that Mr. Sergeant and himself appeared in support of the judgment of the circuit court, by the appointment of the governor of Pennsylvania, under certain resolutions of the legislature. The case in that court was an ejectment by the heirs of John Nicholson, for two tracts of land in Franklin county, the title of which was admitted to be in them, unless divested by certain alleged liens and proceedings of the state of Pennsylvania. By agreement, the proceedings by the state were to be set up as a defence, and the question, whether the title of John Nicholson, and his heirs, was divested by them, was to be brought forward and submitted on its merits. The case, therefore, turned upon this defence, the history of which may be briefly stated.
In March and December 1796, certain accounts between the state and John Nicholson were settled in the department of accounts, by which he was found a debtor to the state in large amounts. On these settlements, the state claimed to have a lien on John Nicholson's real estate throughout the commonwealth. In December 1795, and March 1797, the state obtained judgments against him for large sums. On these judgments, a similar lien was asserted. In 1806 and 1807, the legislature passed two acts, authorizing commissioners, under a warrant by the governor, to sell the lands of John Nicholson, in satisfaction of these liens. At sales under this process, the defendants bought and entered into possession, and continued in possession more than twenty-one years, without question, the youngest of the children of John Nicholson having been of age twelve years before the institution of the ejectment, and four of them having been of age at the time of the sales.
The plaintiffs contended: 1. That none of the accounts were so settled as to have become valid liens. 2. That the judgments were not a lien. 3. That the acts of 1806 and 1807 were unconstitutional and void. The charge was on all the points to the contrary; and the opinion of the court was also adverse to the plaintiffs, in overruling certain matters offered in evidence, and to be hereafter noticed. The questions consequently are, whether there is error in the court's opinion, either in charge to the jury, or in rejection of the offered testimony?
The acts of assembly of Pennsylvania which bear upon the subject, require to be more particularly stated. At all times, before as well as since the revolution, Pennsylvania has had a special tribunal for the settlement of public accounts concerning her revenue and expenditures. Prior to the act of the 13th of April 1782, this tribunal consisted of three auditors named by the assembly, whose certificate was conclusive, in an action against the debtor. Act of 1st March 1780, § 5, McKean's Laws 287. On the 13th of April 1782, an act was passed to establish the comptroller-general's office. 2 Dall. Laws 44. In this office, all public accounts were to be settled, and then transmitted, with the vouchers, to the supreme executive council. If approved by the council, and a balance was found due by the state, a warrant was to be drawn by the president of the council upon the state treasurer. If a balance was found due to the state, it was made the duty of the comptroller-general to take the most effectual steps to recover it, by filing a certificate of the debt in the office of the prothonotary or clerk of the county court, and taking a warrant against the body, and distress against the goods, and if there were none, then a fieri facias against the debtor's lands. The act makes no express provision for non-approval of the settlement by the council. It gives neither appeal from the council, nor trial by jury to the debtor, and it does not make the settlement a lien. By this act, John Nicholson was appointed comptroller-general.
On the 18th February 1785, an act was passed, entitled 'an act to give the benefit of trial by jury to the public officers of this state, and to other persons who shall be proceeded against in a summary manner by the comptroller-general of this state.' It allows an appeal by the debtor to the supreme court, within one month after notice of a settlement approved by council, upon his giving security, in the nature of special bail, to prosecute the appeal; and as a necessary counterpoise to the right of appeal, the 12th section enacts, 'that the settlement of any public account by the comptroller, and confirmation thereof by the supreme executive council, whereby any balance or 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.' 2 Dall. Laws 247.
The law of Pennsylvania thus remained until the 28th March 1789, when an act was passed 'for the appointment of a register-general, for the purpose of registering the accounts of this state.' 2 Dall. Laws 704. This act was the commencement of an effort to introduce into the accounting department, a check on the power of John Nicholson, of whom the assembly became jealous, and whom they had not they power to displace. It directed the comptroller-general to submit all accounts, before he settled the same, to the register-general, and to take his advice in making such settlements; but the act was defective in several points, and especially, in not requiring that the vouchers should be submitted, with the accounts. A supplement was passed on the 30th September 1789, 2 Dall. Laws 751, to remedy this defect; and it ordered the comptroller-general to state adjust and strike the balance, and to report his opinion, with the vouchers, to the register-general, and to take his advice, before final allowance. This act was defective, as well as the former, in making the office of the registergeneral merely advisory, without providing for a difference of opinion, or obliging the comptroller-general to follow the advice given, which it may be presumed, from what follows, that he showed no disposition to do.
The act of 1st April 1790, 2 Dall. Laws 787, was then passed, which, as to all subsequent accounts, directed the register-general, in the first instance to examine, liquidate and adjust them, and afterwards to transmit them, with the vouchers, to the comptroller general, for his examination and approbation. If they agreed, the register was to transmit the account and vouchers, as before, to the council. As this act made the register-general the officer to settle public accounts, the fifth section enacted, that 'all such settlements of accounts shall have the like force and effect, and be subject to the like appeal at the instance of the party, as settlements heretofore made by the comptroller-general.
The law stood thus, at the adoption of the present constitution of Pennsylvania, on the 2d September 1790, when a single executive having been substituted for the council, successive acts of 14th January, 13th April and 21st September 1791, 3 Dall. Laws 3, 73, 113, were passed, to give to the governor the power of performing all duties enjoined upon the council by former acts of assembly, and among others, that of revising and approving or disapproving the settlements of public accounts; but the last-mentioned act provides, that all future accounts, settled by the comptroller and register, or either of them, shall be referred to the governor for his approbation, only when they differ in opinion; and that in all cases where they agree, 'only the balances due on each account shall be certified to the governor, who shall thereupon proceed in like manner as if the said accounts respectively had been referred to him, according to the former laws upon the subject.' By this act, the governor was authorized 'in like manner and upon the same conditions as heretofore,' to allow appeals, or to cause suits to be instituted.
On the 4th April 1792, a further act was passed, entitled 'an act to provide for the settlement of public accounts, and for other purposes therein mentioned.' It was, in the main, a condensation of the existing system of accounts. It repeated several provisions then in force, added others not material, and repealed 'so much of any former act as was thereby altered or supplied, and no more.' The second section enacted, that when accounts were finally settled, either by the comptroller-general and register-general, or, in case of their disagreement, by the governor, the comptroller and register were each to enter the same in suitable books, and upon such entry jointly to certify the balance, and the fund out of which it was payable, to the ...