Livingston v. Moore. 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. 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 mis- [*491 chievous 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; Livingston v. Moore. 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 strenuously asserts, that the constitution of the United States forbids all *ex post *492] 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 *par*493] titions, 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 many careful and tender provisions to protect debtors from harsh and hasty proceedings. This Livingston v. Moore. 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 [*494 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 790; 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 or 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 agree Livingston v. Moore. ment 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 *incum*495] brance, 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. m. 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 *496] 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 Livingston v. Moore. 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; [*497 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 tranferred 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 |