William Johnson

“ 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. ”

“ The property was insufficient to pay even the debt due to the commonwealth, as a fair public sale has ascertained; there was nothing for the heir. Was the legislature incompetent to supply the process? Those who affirm a proposition so extravagant, ought to make it out very clearly. A constitution imposing a restriction so unreasonable, would require to be altered; it is against every notion of what is expedient and what is just. The right of a creditor is a perfect right; it is as strong as the right of property, and has as strong a claim to protection. ”

“ 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. ”

“ 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. ”

“ Transfers of property have assumed it, to an extent not to be denied, but, according to a printed paper put forth on the part of the plaintiffs, embracing more than two millions of acres.
Is it competent to the plaintiffs, at this time of day, to dispute the settlement? Can they be permitted, by such exceptions as are here presented to what was so long ago done, to disturb the titles thus derived under the laws of Pennsylvania? If there were not a paper or a witness, is there not ample evidence? Can they, who have lain by, now demand proof of what was done thirty-four years ago? ”

“ 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. ”

“ Is there anything in the constitution of the United States, or of the state of Pennsylvania, which says that a man's property shall not be sold for the payment of his just debts? Is there anything which says the legislature shall not be allowed to judge of the means? ”

“ Powers of sale, to assist or enforce vested rights, are created by them, every day, and in every way and manner that convenience requires-in commissioners to sell for taxes, in executors and administrators to sell for debts, in guardians, committees of lunatics, and trustees generally. The very power in question, to sell in satisfaction of a lien annexed to the settlement of a public account, is given by an act of congress, under no larger a charter than is possessed by the state of Pennsylvania. ”

“ If there was no lien, the defendants have no title. If the debt was paid or released, the purchaser is not protected by these acts, as a purchaser at sheriff's sale would be, under an execution upon a satisfied judgment. The debtor's remedy for any wrong done to him in the execution of the acts, is larger than if the sale had been made under the process of a court. It continues open for an unlimited time, may be set up collaterally in the investigation of any title conveyed under it, and has the benefit of a strict construction of the special authority conferred by the acts. ”

“ As to partial legislation generally, there can be no reason for making a remedy larger than the mischief, and the legislature are the exclusive judges of the extent of any mischief that requires legislative aid. Whether an act should comprehend one case or a thousand depends solely on the pleasure of those, from whom alone the act is to proceed.
Finally, it is supposed, that these acts violate those clauses of the Pennsylvania bill of rights which prohibit unreasonable seizures, and the taking of property, without the judgment of peers, or the law of the land. ”

“ Every question of right was previously settled by an impartial tribunal; nothing remained but the remedy. If the state cannot devise a new remedy for its own rights, neither can it for those a private person. If the acts are bad, because the state is a party, the public interest must remain without protection, since the state must always be, to the same extent as now, a party to the legislation that protects them. ”

“ The nature of the lien of a judgment as a general and not a specific lien, was well known in Pennsylvania, and the object of the clause was, to liken the lien of a settlement to that which was already known; the clause had no other object. 2d. A contract is supposed to be implied by the confession of judgment, that it shall be enforced only by execution. There is no warrant for any such implication; the contract of a judgment, or the obligation of the contract, is by the debtor to pay it; there is no contract or obligation in the creditor to obtain payment only in one way. ”

“ 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. ”

“ Of all that has been done, and all that was doing, the heirs had notice. Whatever has been done, has been done by or under public laws; a public law is notice to every body.
But it is said, they were in another state, and were under the disability of infancy. As to the first, the answer is very obvious. Their being in another state, makes no difference, where the question is of lands in Pennsylvania. They are affected, wherever they may be, with notice of the legislation of Pennsylvania upon lands within her limits. Infancy makes no difference, where it is a question about charges upon land. ”

“ 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. ”

“ 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. ”

“ It may be stated, upon clear authority, that a question of conflict between a law of a state and the constitution of the state, is not a question of federal cognisance. The judiciary of the Union has a clear paramount authority in all cases where there is a question whether a state law is repugnant to the constitution of the United States. ”

“ In every aspect, therefore, in which the case can be reviewed, it appears that the proceedings of the commonwealth of Pennsylvania have been just, prudent, patient and intelligent, as well as entirely consistent with the constitutions of the Union and the state. The government in all its branches has done its duty, and has done no more. ”

“ Objections are not to be listened to, which have no better foundation than a general charge of injustice, or an appeal to what is supposed to be a sort of prevailing complexion of the constitution. These are arguments to be addressed to the legislature, when they are enacting laws, perhaps, to the judiciary when expounding them, but never when called upon to declare such laws to be incompatible with the constitution. ”

“ There is want of precision in the argument which imputes to these acts as an objection, that they were made by the legislature in its own case. The debt was owing to the commonwealth. The commonwealth was the creditor, the entire body politic, made up of all the citizens of Pennsylvania. The legislature was only a branch of the government. That the legislation was about matters which concerned the commonwealth, can surely be no valid objection, for these are peculiarly the proper subjects of legislation. The members of the legislature are no more interested than any other citizen. ”

“ By the constitution of Pennsylvania, art. 1, § 1, the whole legislative power of the commonwealth is vested in the general assembly. In the creation of tribunals for the exercise even of judicial powers, the legislature are under no restraint. They may place it where they please, and in themselves, if they see fit. 'The judicial power of this commonwealth shall be vested in a supreme court, &c., and in such other courts as the legislature may from time to time establish.' Art. ”

“ No contribution to the prosperity of the commonwealth. Not even a tax paid. In the meantime, what happens? By the common exertion and contribution of the state and her citizens, the public prosperity is promoted. These lands are cultivated, improved and settled, at a great expense of money and labor, giving them a value they had not before. Then, after thirty and more years, come the heirs to take the lands and improvements. There is a time for all things; being suffered to pass, there ought to be an end of claim. ”

“ It was no 'trial at common law.' The execution of a judgment was what was in question. The sixth article of the bill of rights of Pennsylvania says nothing more than this: 'trial by jury shall be as heretofore, and the right remain inviolate. Was it ever the practice to have trials after judgment? Were juries ever used in such cases before? An inquest to ascertain whether the rents and profits will pay in seven years, is not a jury, in the sense of this article. It owes its existence to an act of assembly, which the legislature may at any time repeal or alter ”

“ 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. ”

“ Trial is the examination of the matter in issue. It supposes a suit, criminal or civil, an issue formed, and the reference of this issue for decision to some tribunal. It is the probation of the matter in issue, before judgment, and upon which judgment is to depend. Trial by jury, therefore, as one of the modes of trial known to the common law, is the probation of a matter of fact issue between parties, in a depending suit, before judgment ”

“ If the exercise of the authority divests any rights, it does so in favor of vested rights. A court of equity could have done the same thing. The objection then is, that the powers of a court of equity, which the legislature may create or grant to the utmost extent, and to any tribunal whatever, they cannot grant, in a partial degree, to commissioners, nor exercise it themselves.
3. It is said to be a violation of the trial by jury. ”

“ 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, 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 ”

“ To administer it through the ordinary powers of a common-law court is impracticable; and hence, wherever there exists no provision 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 ”

“ 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. ”