It is, therefore, respectfully submitted that the judgments of the supreme court of Pennsylvania must be reversed, because they give to the act of the 3d of April 1826, a construction which, so far as regards this case, makes it manifestly unconstitutional and void: for it divests vested rights acquired by contract; destroys the obligation of the contracts under which the Watsons held, and gives their estate to the Mercers in a way that even Margaret Mercer herself could not do-for she could never have re-created this deed so as to make it operate from its date; subverts the judicial power; makes it subservient to the legislative will, and directly contravenes the tenth section of the first article of the constitution of the United States; which, according to the construction given to it by this court, shields and protects all contracts, executed and executory, real and personal, from the influence of state legislation that impairs their obligation.
Mr Rogers, for the defendants in error, argued:
1. That the act of 3d of April is not an ex post facto law, nor law impairing the obligation of a contract, either express or implied. And in this particular, it has nothing to do with the constitution of the United States.
2. That the act in question is an explanatory law, altering a rule of evidence merely. It does not divest titles, nor divest vested rights; and it is not unconstitutional, if it did.
The considerations of these two propositions will meet the argument of the plaintiffs in error, before the supreme court of Pennsylvania, and, it is presumed, will equally answer that purpose here.
The act of the 3d of April 1826, is retrospective in its operation, and so designed by its framers. It is not for this cause unconstitutional. The power of a legislature to pass retrospective laws, is no where taken away, or prohibited by the constitution of the United States. It is true, a state cannot pass an ex post facto law which is a retrospective criminal law, but it can a retrospective civil law. Expressum facit cessare tacitum, says a maxim of the law.
This power of passing retrospective laws by a state, has been repeatedly decided to be constitutional in Pennsylvania. See Underwood v. Lilly, 10 S. and R. 97; Barnbaugh v. Barnbaugh, 11 Serg. and R. 72. So also, in the supreme court of the United States, in Satterlee v. Matthewson, 2 Peters 380.
The same principle was decided in Pennsylvania and is reported in 15 Serg. and R. 72; which, in the supreme court of the United States, was quoted as authority in the case of Nicholson's heirs and others, reported in 7 Peters 469.
The act in question is constitutional, unless it is an ex post facto law, or law impairing the obligation of a contract. Satterlee v. Matthewson, 2 Peters 580. It is not an ex post facto law, because such a law relates to criminal matters alone. Calder v. Bull, 3 Dallas 386, 396; Fletcher v. Peck, 6 Cranch 138; Commonwealth v. Lewis, 6 Binney 271.
Then, does the act violate a contract? What is a contract? It is an agreement between two or more parties to do or not to do certain acts.
The contracts embraced by the clause in the constitution referred to, the first clause of tenth article, include those which are executed, such as grants, and such as are executory, and this, whether between individuals only, or between a state and individuals. This position is abundantly decided in Fletcher v. Peck, 6 Cranch 136; Green v. Biddle, 8 Wheaton 1, 92; Providence Bank v. Billings, 4 Peters 514.
The clause embraces no other contracts except those for property, or some object of value. See case of Dartmouth College, 4 Wheaton 637, 644. It did not embrace any other contracts than express. Implied contracts are excluded; except, perhaps, indeed, such as are implied from the nature or terms of a prior agreement. This distinction is expressly taken by the supreme court in the case of Jackson v. Lamphire, 3 Peters 280. Judge Baldwin says, 'Where there is no express contract, courts will not create a contract by implication.'
But where is the contract impaired by this act of the legislature of Pennsylvania? It is contended there is nome, either express or implied. If so, where is it? How does it arise, and who are the parties to it? The inquiry is important, because the party complaining must show it. It is not sufficient to allege, that the constitution has been violated. Courts will not declare laws unconstitutional for light or trivial causes. 'This power,' says chief justice Tilghman, 3 Serg. and R. 73, 'is a power of high responsibility, and not to be exercised but in cases free from doubt.'
But the inquiry is important in another sense; because, if the act of the legislature of Pennsylvania divests rights which are vested by law in an individual, if it does not violate a contract, it has nothing to do with the constitution of the United States. 2 Peters 380.
The error assigned in substance says, 'the contract commenced with the patent in 1743 by the proprietors to Samuel Patterson; descended by the laws of intestacy from generation to generation, and was finally confirmed by the decision of the supreme court.'
1st. It is contended that the patent is impaired by this law? Did the state attempt to resume the grant, as in Fletcher and Peck? Does the question arise between the state, and Patterson or his alienee? Did he sell? The land on the contrary is derived under the patent, by both parties, and not in contradiction to it. It operates upon a state of things long subsequent to Patterson's death; upon a contest between the children. See 3 Peters 280.
2d. Did the common law, or the statutes of descent, as the gentlemen call them, create a contract between the feme and her heir at law, that if she died intestate, the heir should have the property? Does the common law, where a feme covert attempted, though imperfectly, to transfer her property, and a legislature made the attempt valid, declare that this legislative act violated a contract between the heir and feme heir at law? Was such a contract contemplated by the clause in the constitution? Is such a contract express or implied?
3d. Did the act of 20th February 1770, create any contract which is violated by the legislative act of 1826? This is not even pretended.
4th. Then, did the supreme court in 1809 (Watson and Bailey), when, as the plaintiffs in error say, they declared the deed of the 30th of May 1785 void, create a contract which is violated by this act? According to this argument, the court, in this case, first destroy one contract, and then make another between different parties.
But, admit for one moment, that the deed was void, and as such declared by the court. This act of 1826 did not impair it. The legislature, say they, make a void deed a valid one: that is, set up a new contract between the parties. Did they violate the contract? There is a difference between making a new contract between parties, and impairing one. 2 Peters 412, 413.
But was the deed declared void by the court? This position is the basis of all the argument of the plaintiffs in error, and if you remove the foundation, the superstructure must fall also. The supreme court in 1809, did not say so. 1 Binney 480. Judge Yeates concludes by saying, 'I am therefore of opinion, that this deed had no legal effect against the heir at law, after the death of the wife.' Here it is admitted that the deed was good, during the life of the wife-not void ab initio. It failed of legal effect, says the court; and how did it fail? Because the deed was not sufficiently proven, not that it was void. The court held the certificate of the judge to be conclusive; and as, on its examination, it did not appear that the contents were made known, and the act of signing to have been her voluntary act, the deed was not received as evidence of title. And parol declarations of the wife, repeatedly made, were rejected as evidence, to supply the necessary proof of the acknowledgement.
There is another view of this case peculiarly applicable in this stage of the argument.
This deed of the 30th of May 1783, was a good and valid deed at common law, that is, the common law of Pennsylvania. See Davey v. Turner, 1 Dallas 11; and Lloyd v. Taylor, 1 Dallas 18. These cases decide, on the principle of communis error facit jus. That a deed signed by husband and wife, whether she was examined separate and apart, or whether the deed was even acknowledged at all; yet it conveyed the interest of the parties.
These cases furnish, if nothing more, ample corroboration of the truth and correctness of the view taken by the chief justice of Pennsylvania, in this cause, in which he considers the act of 1826, not as a law impairing a contract, but as carrying a contract into effect. Thus validating the deed of the 30th of May 1785, by the substitution of the intention, and carrying in into operation.
Upon the second proposition of the defendants in error, Mr Rogers contended, that the law of 1826 is an explanatory law altering a rule of evidence. This is the first part of the proposition which is primarily to be examined.
The act of the 24th of February 1770, for which see Purdon's Digest 164, 165; and Dallas's Laws 535; and 1 Smith 307, points out the mode of the acknowledgement, &c. The court, in putting a construction upon this act, construed it strictly. Deciding that the evidence, and only evidence of the acknowledgement, being in accordance with the act, was the certificate of the judge. 1 Binney 470. So that it mattered not how honest the intention to convey, and fair the transaction between the parties; nor whether the judge conformed to the requisitions of the act in point of fact: yet if he did not certify all the particulars, the deed could not be received. Thus violating the maxim omnia presumuntur rite esse acta.
The act of the 3d of April 1826, which in its title is supplementary to the act of the 24th of February 1770, altered the rule thus established by the court; by making the intention of the parties the legitimate subject of inquiry before courts of justice. The question then was, was the deed bona fide made and executed by the husband and wife, and acknowledged before some judge, &c. If so, then if the acknowledgement were informal in not setting forth all the particulars, it was not for this cause invalid, but was cured by the act.
The deed thus acknowledged, bore on its face, when exhibited in a court of justice, prima facie evidence of the good faith of the parties. That is, furnished a legal presumption in favour of the deed. But the question is still left open for the opposite party to show fraud or want of good faith.
Fraud was not alleged, or even pretended: but the opposite was shown by the reasons for a new trial in 1809, brought forward by the Watsons themselves. The jury found in favour of the deed a second time as already stated; thus furnishing a decision in point of fact and of law, in favour of Mercer.
The remaining part of the second proposition of the defendant in error, relates to the power of a state, by a legislative act, to divest rights vested by law in an individual. And here it is contended by the plaintiff in error, that the legislature of Pennsylvania, by the passage of the act of 3d April 1826, infringed their vested rights to the land in dispute, which were guarantied by the constitution of Pennsylvania and that of the United States.
The question, whether a state law, repugnant to a state constitution, is constitutional or not, is not cognizable by the supreme court of the United States. It is exclusively confined to the state courts. Jackson v. Lamphire, 3 Peters 280.
As to the power under the constitution of the United States, of a state to take away from an individual his vested rights to property, whatever doubt there may have been before, since the case of Satterlee v. Metthewson, 2 Peters 380, the question has been put at rest. Such a law, if it does not impair a contract, has nothing to do with the constitution of the United States.
But the exercise of such a power, so far as it is applicable to this case, is denied. The legislature did not divest the vested rights of the Watsons.
Mr Hopkins, for the plaintiffs in error, contended, that the act of April 3, 1826, was ex post facto in its operation, and therefore void. The rights of the appellants were derived under the patent from the proprietaries of Pennsylvania to their ancestor; had been established by two verdicts in ejectment, and by the force of the thirteenth section of an act of assembly of 1807; and the ejectment in this case was conclusively barred.
The section enacts, 'whenever two verdicts shall, in any writ of ejectment between the same parties, be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought, but when there may be verdict against verdict between the same parties, and judgment thereon, a third ejectment in such case, and verdict and judgment thereon, shall be final and conclusive and bar the right; and the plea in ejectment shall be not guilty.
All these rights are, by the constitution of Pennsylvania, in its ninth article, excepted out of the general powers of government, 'that the general, great and essential principles of liberty and free government, may be reorganized and unalterably established.'
The first section declares, that all men have certain inherent and indefeasible rights, amongst which are those of enjoying life, and liberty of acquiring, possessing and protecting property. The ninth section declares, that no one can be deprived of life, liberty or property, unless by the judgment of his peers, or the law of the land. The sixth section provides for the due administration of justice; and the seventeenth section declares, no ex post facto laws, nor any law impairing contracts shall be made. And sections fifteen and eighteen protect personal security. And section twenty-six declares, that every thing in this article is excepted out of the general powers of government, and shall for ever remain inviolate.
Absolute rights to property, are placed under the safeguard of the constitution, as completely and effectually as life and liberty, and with equal justice; as life and liberty would be dreary things to man, if he could not be secure in the enjoyment of his property, acquired by his honest industry, to make life comfortable, and liberty worth preserving.
The arrangement of personal security and private property is much expanded, and differently cast in the constitution of Pennsylvania, from that which exists in the constitution of the United States. The fifteenth, seventeenth, eighteenth and nineteenth sections, are widely different in their arrangement, and designedly so, to afford to each their fullest operation, to the whole extent of the expressions used. The imputations of crime and punishment, are wisely and studiously separated from those which expressly relate to civil rights, except when the protection to the latter would, in its generality, equally embrace the former.
The seventeenth section associates ex post facto laws and laws impairing contracts, and makes them, as to their abjects, one and indivisible; as it would be all but useless to preserve civil rights from being impaired in the least degree, when the contract itself would be destroyed by legislative enactment, by creating something to assail it, which did not exist before, or by prescribing a rule of evidence which would recreate that which had been condemned in judgment of law.
Our constitution is formed by the people, out of their original inherent and elementary power enjoyed as a free people, seeking their security and happiness, against that despotism which sometimes springs up in the turbulence and listlessness of the best of governments. The words and phrases used are taken in their most comprehensive sense, adapted to the common understanding, excluding all technicality which would be unintelligible to ninety-nine out of a hundred of those who had the deepest interest in the protection intended and given by it.
Hence the expression. ex post facto law, is used in its original and general sense, to prevent all retrospective legisation, and to make an act, which when done was innocent, criminal; or a right, which when acquired was legal and just, illegal and unjust. The other clause of the sentence in which these expressions are found, necessarily imposes on this, from its connection, the protection of civil rights. Noscitur a sociis, is a very just and rational rule of exposition of the different clauses of the same sentence, which, from the affiliation of its parts, must be intended to embrace the subject matter of the sentence, which was the protection of property and person, otherwise they would not be so united. A complete absolute inviolability was designed for both, which forbids restricting the terms used from their general meaning.
Our courts, in conformity to this injunction and interdiction of the people, have uniformly construed acts of the legislature prospectively, even when their language would have borne a different construction.
The late venerable Chief Justice Tilghman, who united all the virtues of a judge to an enlightened and profound knowledge of his profession, declares, 'the rule has been, that where civil rights are affected, the act shall be confined to a prospective operation.'
The same doctrine was uniformly sustained before, and formed an impregnable barrier against unconstitutional power invading the constitutional rights of the people. 4 S. and R. 401; 12 S. and R. 330; 1 Bin. 601; 3 S. and R. 169, 590; 2 Dall. 312.
And even this very act, of the 3d of April 1826, has been adjudged, by the unanimous opinion of the supreme court, to operate prospectively, only where civil rights are affected.
This uninterrupted series of decisions, sustaining the constitutional rights of Pennsylvania, had grown with her growth and strengthened with her strength, from the first foundation of the province, resting on the benign principles of the common law.
In England, where the liberty and security of the subject has no other basis to rest upon than the common law, retrospective legislation is uniformly rejected by her courts of justice. T. Jones's R. 108; 2 Show. R. 27; 2 Mod. 310; 1 Ld. Ray. 1352; 4 Burr. 2460. So in Virginia. 1 Wash. R. 139; 3 Call's Rep. 168, 278; 1 Hen. and Mun. 204. So in New York. 7 Johns R. 477, 501; 19 Johns R. 58.
It is an invariable rule in Massachusetts, never to construe a statute retrospectively, unless it be so positively expressed 10 Mass. Rep. 437; 12 Mass. 383.
The same rule has nuiformly prevailed in the courts of the United States, where it has ever been held, that no law is to be construed, so as to impair rights previously vested.
This interdiction, by judicial power, of retrospective legislation upon civil rights, on account of its tyrannous and despotic character, might be extensively shown in the judicial code of most, if not of all our sister states, wherever it has been attempted. But as the sovereign will of the people has excepted this power out of the grant of ligislative power, and has declared, that our bill of rights, contained in the ninth article of the constitution, shall for ever remain inviolate, its extinction in Pennsylvania will not occur, while the constitution is maintained by our courts of justice.
The act of the 3d of April 1826, does not embrace our case.
This is a supplement to the act of the 24th of February 1770, with which it must be construed to discover its meaning. The original act is both confirmatory and declaratory. The made of conveying by man and wife, had been according to certain customs and usages, by which 'a very great number of bona fide purchasers for a valuable consideration, were become the just and equitable owners,' and 'to remove some doubts' about the validity of such conveyances, the act confirms the title of such purchasers. It stopped upon protecting bona fide purchasers for valuable consideration, who had become the just and equitable owners; and left husbands, who used their situation to become the owners of their wives' property, where they were. To that extent, communis error facit jus, would probably have supported the custom, because, at the early period of the province, and until 1760, inchoate titles to land, such as warrants, locations, &c. not perfected by patents, were transferred by bill of sale as chattels. The confirmatory part of the supplement, just goes the same length and no further. And that was going much further than the former, where common error made a strong case with the custom, and the unimproved and uninformed state of the province, at that early period: whereas the declaratory part of the original law, prescribed a mode for the husband and wife to convey the estate, which would prevent injury to purchasers bona fide and for full value, who were not guilty of gross neglect. The legislation in the supplement, set forth the object to be the same for its enactment as was declared in the original act; that estates of great value have been bona fide sold by husband and wife for a legal and sufficient consideration, and that, in all such cases, the persons who hold, should not be disturbed in the enjoyment of them thus equitably acquired. This specific declaration of the object and intent, could not, by any just rule of construction, be expanded by the verbiage of the enactment to embrace this case.
But if this act, of the 3d of April 1826, upon its true construction, embraces this case, it is void by the constitution of the state, and of the United States.
The title of the plaintiff in error, originates in the patent, granted by the late proprietaries of Pennsylvania, for full value to Samuel Patterson, their great grandfather, on the 19th of October 1743, and is the highest contract known to the laws of Pennsylvania, of title to real estate. The act of November 1779, which divested the proprietaries of their estate in the province, and vested it in the commonwealth, confirmed all the grants and contracts made by them to individuals.
This title to the lands in dispute came by succession, through several courses of descent, to Margaret Patterson, who married James Mercer, and on her death, in his lifetime, without issue, came by three successive descents, to the plaintiff in error, under the act directing the descent of intestate's real estate, passed the 19th of April 1794. The first of these descents was established by the judgment of the supreme court, in the ejectment brought by David Watson and Sarah his wife, the heir at law, against the executors of James Mercer, on the 31st of December 1808, against the deed of the 30th of May 1785, and the two last, by the judgment rendered on the 3d of June 1820, in the ejectment brought by John and Margaret Mercer, against Samuel P. Watson, and on his death, continued against his heirs, plaintiffs in error, against the said deed.
Margaret Mercer died before the 1st of February 1802, and our recovery on the descent, on the 31st of December 1808, remitted to us the possession, according to our title, against the deed of the 20th of May 1785, and we continued in possession until the 3d of April 1826-twenty-four years two months and three days.
By the act of the 26th of March 1785, twenty-one years is the limitation of actions for real estate in Pennsylvania.
By the twentieth section of the act of the 13th of April 1791, no writ of error can be brought to reverse any judgment, given in any action, real, personal or mixed, after seven years.
By the fourth section of the act of the 13th of April 1807, after two verdicts and judgments in succession, no new ejectment shall be brought.
Under this statement the following points are submitted:
1st. This is an ex post facto law, impairing the obligation of contracts: destroying and impairing our vested rights under the grant contained in this patent, both by the constitution of Pennsylvania, and of the United States.
2d. It is an ex post facto act, impairing our vested rights, which descended under the intestate law of the 19th of April 1794, by virtue of the grant contained in the patent, and depriving the plaintiff in error of the protection of that law.
3d. The act is ex post facto, and impairs the vested right derived to us under our patent, and the three descents cast upon us, and confirmed by the two judgments of the supreme court, sustaining the said descents against the deed of the 30th of May 1785, and adjudicating it to be void on points put to the court, involving its validity, which judgments are conclusive evidence of said deed being no deed-and of our rights acquired by the three descents being absolute vested rights.
Mr Justice STORY delivered the opinion of the Court.
This is a writ of error to the supreme court of the state of Pennsylvania, brought under the twentieth section of the judiciary act of 1789, chapter 20.
The original suit is an ejectment by the defendants in error for certain lands in Lancaster county in the state of Pennsylvania, upon which a final judgment was rendered in their favour. The facts, so far as they are material to the questions over which this court has jurisdiction, are these. On the 8th of May 1785, James Mercer and Margaret his wife executed a deed of the premises, then being the property of the wife, to Nathan Thompson in fee, who afterwards, on the same day, reconveyed the same to James Mercer the husband, in fee; the object of the deeds being to vest the estate in the husband. The certificate of the acknowledgement of the deed of Mercer and wife to Thompson by the magistrate who took the same, does not set forth all the particulars as were required by the law of Pennsylvania of the 24th of February 1770, respecting the acknowledgement of deeds of femes covert. The legislature of Pennsylvania, on the 26th of April 1826, passed an act, the object of which was, to cure all defective acknowledgments of this sort, and to give them the same efficacy as if they had been originally taken in the proper form. The plaintiffs in the ejectment claimed title to the premises under James Mercer the husband: and the defendants, as heirs at law of his wife, who died without issue. The ejectment was brought after the passage of the act of 1826.
In the case of the lessee of Watson and wife v. Bailey (1 Binney 470), the acknowledgement of this very deed from Mercer and wife to Thompson was held to be fatally defective to pass her title. But the act of 1826 has been repeatedly held by the supreme court of Pennsylvania, to be constitutional; and to give validity to such defective acknowledgements. It was so held in Barnet v. Barnet (15 Serg. and R. 72), and Tate and wife v. Stooltzfoos (16 Serg. and R. 35): and again, upon solemn deliberation and argument, in the case now before this court. The object of the present writ of error is, to revise the opinions thus pronounced by the highest state court.
Our authority to examine into the constitutionality of the act of 1826, extends no farther than to ascertain, whether it violates the constitution of the United States; for the question, whether it violates the constitution of Pennsylvania, is, upon the present writ of error, not before us.
The act of 1826 provides, 'that no grant, &c., deed of conveyance, &c., heretofore bona fide made and executed by husband and wife, and acknowledged by them before some judge, &c., authorised by law, &c. to take such acknowledgement as aforesaid, before the 1st day of September next, shall be deemed, held, or adjudged, invalid or defective, or insufficient in law, or avoided, or prejudiced, by reason of any informality or omission in setting forth the particulars of the acknowledgement made before such officer as aforesaid, in the certificate thereof; but all and every such grant, &c., deed of conveyance, &c., so made, executed and acknowledged as aforesaid, shall be as good, valid and effectual in law, for transferring, passing and conveying the estate, right and title, and interest of such husband and wife of, in and to the lands, &c., mentioned in the same, as if all the requisites and particulars of such acknowledgement mentioned in the act, to which this is supplementary, were particularly set forth in the certificate thereof, or approved upon the face of the same.'
The argument for the plaintiffs in error is, first, that the act violates the constitution of the United States, because it devests their vested rights as heirs at law of the premises in question: and secondly, that it violates the obligation of a contract, that is, of the patent granted by the proprietaries of Pennsylvania to Samuel Patterson, the ancestor of the original defendants, from whom they trace their title to the premises, by descent through Margaret Mercer.
As to the first point, it is clear that this court has no right to pronounce an act of the state legislature void, as contrary to the constitution of the United States, from the mere fact that it devests antecedent vested rights of property. The constitution of the United States does not prohibit the states from passing retrospective laws generally; but only ex post facto laws. Now it has been solemnly settled by this court, that the phrase, ex post facto laws, is not applicable to civil laws, but to penal and criminal laws, which punish no party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed. In short, ex post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively. The cases Calder v. Bull, 3 Dall. R. 386, 1 Cond. Rep. 172; Fletcher v. Peck, 5 Cranch's R. 138, 2 Cond. Rep. 308; Ogden v. Saunders, 12 Wheaton's R. 266, 6 Cond. Rep. 523; and Satterlee v. Matthewson, 2 Peters's R. 380, fully recognize this doctrine.
In the next place, does the act of 1826 violate the obligation of any contract? In our judgment it certainly does not, either in its terms or its principles. It does not even affect to touch any title acquired by a patent or any other grant. It supposes the titles of the femes covert to be good, however acquired; and only provides that deeds of conveyance made by them shall not be void, because there is a defective acknowledgement of the deeds, by which they have sought to transfer their title. So far then as it has any legal operation, it goes to confirm, and not to impair the contract of the femes covert. It gives the very effect to their acts and contracts which they intended to give; and which, from mistake or accident, has not been effected. This point is so fully settled by the case of Satterlee v. Matthewson, 2 Peters's R. 380, that it is wholly unnecessary to go over the reasoning upon which it is founded.
Upon the whole, it is the unanimous opinion of the court, there is no error in the judgment of the supreme court of Pennsylvania, so far as it is subject to the revision of this court, and therefore it is affirmed with costs.
This cause came on to be heard on the transcript of the record from the supreme court of the commonwealth of Pennsylvania for the Lancaster district, and was argued by counsel: on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said supreme court in this cause be, and the same is hereby affirmed with costs.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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