
32 U.S. 469 (____)
7 Pet. 469
THE LESSEE OF EDWARD LIVINGSTON AND OTHERS
v.
JOHN MOORE AND OTHERS.
Supreme Court of United States.

*478 The case was argued by Mr C.J. Ingersoll, with whom also was Mr Taney, for the plaintiffs; and by Mr Binney, and Mr Sergeant, for the defendants.
*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.
*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 commenced 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 four thousand two hundred and eight pounds eight shillings, entered December 18th, 1795.
2d. A settled account of March 3d, 1796, for fifty-eight thousand four hundred and twenty-nine dollars twenty-four cents, afterwards reduced to fifty-one thousand two hundred and nine dollars twenty-two cents.
3d. Another settled account of December 20th, 1796, for sixty-three thousand seven hundred and twenty-seven dollars eighty-six cents. And
4th. A judgment confessed and entered March 21st, 1797, for one hundred and ten thousand three hundred and ninety dollars, with certain special matter attached to the confession, wholly immaterial to the present controversy. The evidence of dates 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 15th, 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 favour 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 injunctions 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 *542 provision in the law for 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 fourth volume of Yeates's Reports: since it appears that this very lien of the 3d of March 1796, has been sustained by a decision of the highest tribunal in that state, as long ago as 1803 (Smith and 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. Nichols.
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 with that of Smith and 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 *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 representatives 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 United States v. Nichols; for in that case, the lien of a settlement of prior date in favour 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.
*544 Mr Dallas, for the United States, argued, 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 the 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 *545 all the lands affected by the lien throughout the state; then to assess each rateably, according to the amount of the debt, instead of 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 rateably 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 discretionary *546 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 exposé 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 legislative power to the bounds which the plaintiffs would prescribe 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, *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 any thing 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 every where: nor is it possible for any one 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 some where; 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 *548 in the jurisprudence of a country for its full exercise; the consequence must ever be, that after the common law courts have ingrafted 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, sect. 1. "The legislative power of this commonwealth shall be vested in a general assembly, which shall consist of a senate and house of representatives."
Art. 4, sect. 1. "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, orphan's 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, sect. 6. "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 equally 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. *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, declare 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 *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 the 21st 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 be 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 every one 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 connexion with this, the point of inconsistency with the reason and nature of things, was argued and commented upon.
The answer which the case here 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 *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 every one 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 *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? As 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 *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.
