Livingston v. Moore. as was authorized by these acts. question. Whether it was constitutional, is the The characteristics of both the acts are essentially the same. They are: 1st, To raise the money without sale, by compromise and transfer of the state lien. 2d, To prepare the way for beneficial sale, by investigating title, demanding, and by due course of law recovering, John Nicholson's papers from those who had no right to them, making partition in case of joint interest, and by staying sales for taxes. 3d, To sell under a warrant or writ by the governor, in the most beneficial way, upon credit, so much of the land as would raise the proportion of the lien-debt averaged upon the particular tract sold, after a longer public notice of sale than the general execution law required, and in certain cases, where the tract would not raise its proportion of the debt, to authorize a purchase by the commissioners for the commonwealth. The proceedings of the commissioners were to be under the sanction of an oath, and they received their compensation from the state, and not from the property of the debtor. In a word, the acts create a special authority to sell in satisfaction of liens for state debts, duly established according to law, with the fullest opportunity of trial by jury, upon appeal from the settlement, and in regard to the judgment, with a jury sworn at the bar to try the issue, when the defendant confessed the damages. His estate was liable, by the general law, to make this satisfaction; the acts leave him and his representatives the unimpaired right to contest the liens, in any and every way, in the courts of justice; and they have done it, in this case, without stint, and without receiving any answer except upon the merits of their allegations. 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. *514] The question gravely is, whether the legislative power of Pennsylvania is competent to the creation of such an authority, or whether it is restrained, by what is termed organic law, from creating a power of sale, to be exercised by anything but a court of justice. Such a position as the last denies to the legislature of Pennsylvania the least and humblest of legislative capacities. The practice of all the states, under their respective constitutions, is against the proposition. The whole subject of remedial process, and of remedial laws of every kind, is entirely within the competency of the legislature. The forms of writs, original and final, are varied at pleasure. 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. Act of 15th May 1820, § 2 (3 U. S. Stat. 592). The adjudications are numerous, that when it Livingston v. Moore. is not an existing power in the courts, the legislature may create it; and that when it is, they may delegate it to another body; that as all legislative powers appertain to sovereignty, the choice of means to enforce existing rights belongs, in the absence of express restraint by the constitution, entirely to the legislature, to select any they may deem appropriate. Stoddart v. Smith, 5 Binn. 355; Wilkinson v. Leland, 2 Pet. 627; Estep v. Hutchman, 14 Serg. & Rawle 435; Rice v. Parkman, 16 Mass. 330; McCullough v. State of Maryland, 4 Wheat. 316; Fisher v. Blight, 2 Cranch 396. The matter of inquiry is, whether there is a constitutional restraint, and where it is? 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 [*515 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. 5, § 1. The power of the legislature to grant chancery powers to existing courts, or to create chancery courts, is without limitation. Besides the equity powers granted by the constitution to the supreme court and courts of common pleas, to perpetuate testimony, &c., "the legislature shall vest in the said courts such other powers to grant relief in equity, as shall be found necessary, and 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." Art. 5, § 6. The legislature, consequently, are not bound, in the erection of tribunals of any description, to prescribe to them the course of the common law, or the course of law, as distinguished from equity; nor are they bound to vest powers, either ministerial or judicial, in existing tribunals. The whole subject is open to the legislative body to do as it seems fit. What then may be extracted from the plaintiffs' argument, as objections to the acts of 1806, 1807? 1. It is said to be the exercise of a judicial power by an extra-judicial tribunal. The answer is already given, that this, if true in fact, would not be an objection. If it be a judicial power, the tribunal to which it is granted is within the range of the legislative powers of the commonwealth, vested in the general assembly. If it is not a judicial power, the objection fails in fact. It is, indeed, not judicial, but ministerial, and simply remedial of an existing right. The power to compromise and transfer the state lien, if the former be judicial in its character, was not exercised in the present case, and never can be objected to by the heirs of Nicholson, because they cannot be affected by its exercise; it concerns the commonwealth and the transferree only. Whether judicial or not, and whether the constitution of Pennsylvania be unusually large in the grant of legislative powers or not, the objection has no weight. Cooper v. Telfair, 4 Dall. 14; Wilkinson v. Leland, 2 Pet. 660; Jackson v. Griswold, 5 Johns. 142; *Rice v. Parkman, 16 Mass. 330; Satterlee v. Matthewson, 2 Pet. 413. [516 2. It is said to be ex post facto by its retrospective effect. It is not ex post facto. Laws of that character have relation to crimes. Calder v. Bull, 3 Dall. 386, 396; Fletcher v. Peck, 6 Cranch 138; Commonwealth v. Lewis, 6 Binn. 271. If retrospective, that is not sufficient, there must be somethin more. Livingston v. Moore. There is no clause in the constitution of the state of Pennsylvania, or the United States, against retrospective laws. Such a clause would have struck the legislative power as with a palsy. As to remedies, all defects in existing cases would have been made incurable by it; and even as to rights, circumstantial defects might have been extensively fatal. Retrospective laws, enforcing vested rights, are among the most indispensable and beneficial acts of legislation. Ubi leges cum justitia restrospicere possent, the courts cannot avoid enforcing them. They have been repeatedly santioned, and their constitutional validity asserted. Calder v. Bull, 3 Dall. 386; Bambaugh v. Bambaugh, 11 Serg. & Rawle 191; Holden v. James, 11 Mass. 396; Foster v. Essex Bank, 16 Ibid. 270; Mason v. Haile, 12 Wheat. 375; Tate v. Stooltzfoos, 16 Serg. & Rawle 35; Underwood v. Lilly, 10 Ibid. 101; Satterlee v. Matthewson, 2 Pet. 413; Goshen v. Stonington, 4 Conn. 221; Mason v. Haile, 12 Wheat. 378; Sturges v. Crowninshield, 4 Wheat. 200; Bank of Columbia v. Okely, Ibid. 205; Young v. Bank of Alexandria, 4 Cranch 397; Wilkinson v. Leland, 2 Pet. 658. The retroaction of these acts, if any, was to authorize a special process of sale, which justice and the general law warranted, and to which the power of a general court of chancery would have been competent, without any act of the legislature. 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 *acts deny *517] nothing, but the inquisition upon the writ of fieri facias which compels a plaintiff to take an extent, if the rents and profits are found sufficient to pay in seven years. In regard to wild lands, however, like the tracts in question, they do not deny it, any more than the act of 1705. An inquisition is not necessary in such a case. 2 Dall. 77; 1 Yeates 427; 2 Binn. 91; 2 Yeates 150, 414. At the same time, the power of the legislature over such inquests, as part of the process, or to assist the court in the assessment of damages, is perfect and complete. They may restrict it, or abolish it altogether. It forms no part of the trial by jury, secured by the constitution, and can be repealed at pleasure. "Trial by jury shall remain as heretofore." The constitution does not say, that in all cases in which facts have been heretofore ascertained by a jury or inquest, they shall continue to be so, but that trial by jury shall remain. What is trial by jury? This language is taken from the English common law, known and used in the colonies, before the revolution. It is not a loose and vague expression, but of definite signification. It was not intended to bind the legislature to the old modes of ascertaining collateral facts, or for the determination of matter concerning which there is no judicial controversy, but to secure a great and wellknown mode of trial for the determination of an issue. 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 Livingston v. Moore. parties, in a depending suit, before judgment; it is its probation, before that body, sometimes twelve in number, and in some actions more, to whom, according to the course of the law, the decision of issues in fact belonged, before the constitution, in proceedings according to the course of the common law. This is the trial by jury, the right to which is secured, and its great value is in the decision of issues in criminal causes. The clause has no reference to such a case as the present. The right of trial by jury, in its constitutional sense, Nicholson had, and did not choose to exercise or enjoy it. *4. It is said to impair the obligation of a contract by the state [*518 with John Nicholson, and several contracts have been imagined. 1st. The contract is supposed to be implied in the words of the act of 1785, that the settlement shall be a lien, "in the same manner as if judgment had been given in favor of the commonwealth," namely, to be enforced in the same manner by process of execution from a court. The meaning of this clause of the act of 1785 may be, either that the lien shall be equally extensive over the state, or equally conclusive of the debt in favor of purchasers, or of the same character and effect as that of a judgment; but it cannot be, what the plaintiff supposes, because the thing concerning which the identity is enacted is the lien, and not the mode of enforcing it. 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. He may obtain it through execution, or scire facias, or debt, or foreign attachment, or by bill in equity, or in any other way that the law allows at its date, or may subsequently allow. This suggestion, that the process to enforce a judgment is obligatory upon the creditors, in manner and form as it exists at the entry of the judgment, mistakes the creditor's right, for duties, and the duties of the debtor, for rights. 3d. A contract is supposed to be implied in the grant of the land by the state to Nicholson, that the state would not resume the grant, nor sell the land by any extra-judicial, public or arbitrary means. The state has not resumed the grant. The title of Nicholson is now the title of the defendant, not passing through the state, but transferred directly in satisfaction of debt, by the process of the law. The nature of that process, whether it should be the old or a new form, and whether enforced under the supervision of a court or of commissions, is within the competency of the legis lature to decide. Unless every grant of land by the commonwealth *is *519] a contract for the perpetual continuance of all laws existing at its date, and for the introduction of no other, there is no weight in this objection. Contracts by the commonwealth, not to use the constitutional power belonging to it, are not to be implied in the rash and fanciful manner of these exceptions. They require the support of clear and plain expressions. Providence Bank v. Billings, 4 Pet. 563; Jackson v. Lamphire, 3 Ibid. 289. It is said, that the acts of 1806 and 1807 are partial laws, made by the Livingston v. Moore. state for its own benefit, by which it has decided the question of right in its own favor. This is a misapprehension. 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 of 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. 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. The answer to these is, that there is nothing seized or disposed of, but what the general immemorial law of the state has devoted to the payment of debts. The multiplicity of constitutional objections by which the plaintiff's argument has been distinguished, is probably owing to the difficulty of finding any one that possesses strength enough to stand by itself. The points of evidence may be briefly disposed of. The journals of the house exhibiting the paper No. 21, being a statement of debts due the commonwealth on the 1st January 1797; the report of the committee of ways and means of 24th March 1798; and the report of the same committee of 30th March 1799; being offered to prove that the accounts of the commonwealth and John Nicholson were not then finally settled, were prop*520] erly rejected, because: 1. They were none of them competent evidence of the fact. If the question be, what the house has done, and if that be relevant, the journals are evidence, but not as to facts stated in any report, order or resolution. 1 Phil. Evid. 305, 323; Kelly v. Jackson, 6 Pet. 630; Titus Oates's Case, 4 State Trials 30. The only exception is 'when the fact to be proved is an act of state, as the king's speech and answer. King v. Holt, 5 T. R. 445. 2. Because the fact was not relevant. Suppose, all the accounts not then finally settled, or suppose, the judgment and settlements to have been for the same cause, the title of the defendant was still good, because the debt and the lien remained until satisfaction. Ledger C was not evidence of itself, because it was not a book of original entries it was a mere index, and an imperfect one too. Had it been an original book, it was offered too late, namely, after the defendants' evidence was closed. It was not introduced to rebut anything, and when that is not the case, the admission of additional evidence by the plaintiff, after the defendant has finished, is in the court's discretion. The refusal is not matter of exception. Conard v. Atlantic Ins. Co., 1 Pet. 451; Salmon v. Rance, 3 Serg. & Rawle 314; Frederick v. Gray, 10 Ibid. 182; Irish v. Smith, 8 Ibid. 573. Sergeant, on the same side (also for the Commonwealth of Pennsylvania), argued as follows:-The title of the defendants is this. They claim under a public sale, fairly made on the 15th July 1807. The money was paid |