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January 1, 1829


THIS case came before the court on a writ of error to the supreme court of the state of Pennsylvania. In 1784 or 1785, Elisha Satterlee, the father of the plaintiff in error, and Elisha Matthewson, the husband of the defendant in error, the defendant in error being the sister of Elisha Satterlee, went to a large body of land in Lezerne county, Pennsylvania, part of which was the land in controversy, and both took possession of the same, under, as is believed, a supposed title from the Susquehanna Company. They worked on the lands in partnership, the same lying on both sides of the Susquehanna river, until 1790, when it was agreed that Matthewson, who had a house on the west side of the river, should occupy the land before held in common, on that side, and become the tenant of Satterlee for his portion of the land on the said west side of the river; and Elisha Satterlee moved on the lands on the east side, on precisely the same terms: that is, that he should become the tenant of Matthewson for his portion of the land on the said east side of the river. By this arrangement each became possessed, in severalty, of the particular portion of the lands thus allotted to him, and the tenant to the other of portions of the land before held in common; and it was expressly agreed that either of the parties might put an end to the tenancy at the end of any one year; and in that case, each was to be put into possession of his own lands. In 1805 Elisha Matthewson died, having bequeathed by his will to his widow during life, and to his children after her death, the interest he had in the said land. Elisha Satterlee repeatedly, after Matthewson's death, acknowledged the original bargain, and that he was a tenant of Matthewson's part; but he wished to buy it; he wished to give other lands for it, &c. &c.; but his sister could only sell for life, and her children were minors. In 1810, she built a house on part of the tract, and put a tenant in it; but her brother would not give her possession of the part he had in cultivation. In 1811 she made application to the land office of Pennsylvania, and on the 7th of January 1812 took out a warrant in her name in trust for her children, and had the land surveyed, and obtained a patent for it from the commonwealth of Pennsylvania. She stated in her application, an improvement made by her husband in 1785; and paid interest to the state on the purchase moneys from the date of the improvement. After his sister's warrant, survey, and return, Elisha Satterlee purchased a Pennsylvania title commencing in 1769, and consummated by a patent from the commonwealth in 1781, which he alleged covered the land in question; but he directed the deed to be made to his son, J. F. Satterlee, the plaintiff in error; and 1813 an ejectment was instituted in the name of the son against the father, in pursuance of a plan of the father's to release him from the situation of tenant to his sister. By a law of Pennsylvania then in existence, but since repealed, a rule of reference might be entered the same day the writ was taken out, and by diligence a plaintiff might obtain a report of arbitrators, which had the effect of a judgment, before the return day of the writ. This proceeding was, by means of the father's waiving all objections as to time and notice, so carried on, as that the son not only had judgment, but a writ of possession before the return of the writ. J. F. Satterlee then gave to his father a lease for life of the land for the consideration of one dollar. Elizabeth Matthewson instituted an ejectment. J. F. Satterlee, in 1817, procured himself to be entered co-defendant in the suit, and his father being dead, is now sole defendant. On the trial of the cause the defendant made title under an application of John Stoner of 3d of April 1769. Stoner conveyed to Mr Slough, who in 1780 conveyed to Joseph Wharton. A patent issued to Wharton in 1781 and he in April 1812 conveyed to the defendant. The judge of the court of common pleas of Bradford county instructed the jury, that if they found the ejectment brought by the son of J. F. Satterlee, in whose name the conveyance was taken, was actually instituted by the father, though in his son's name as agent for himself, and that the suit was all a trick, and so conducted on purpose to prevent his sister from interfering or being heard, that he was still her tenant, as much as if no such proceeding had taken place. But if the son was the real purchaser, and the suit was instituted and conducted bona fide, and the lease to the father during life for a dollar a year was bona fide, that then E. Satterlee having been evicted by due course of law, might take a lease from him who recovered; and in that case, the relation of landlord and tenant between him and his sister was at an end, and the cause must be decided upon the respective titles of the parties. But if they found him still a tenant, he could not set up against his landlord an adverse title, purchased during his life. But he must restore his possession to his landlord, and might then institute a suit on the title he had purchased; and if it was the best, recover from his former landlord. The verdict and judgment were for Mrs Matthewson. The case was removed by writ of error to the supreme court of Pennsylvania. On the argument of this cause before the supreme court, it was decided,–'That the relation between landlord and tenant could not exist between persons holding under a Connecticut title.' And that court, in 1825, reversed the judgment of the common pleas and awarded a venire facias de novo. Immediately after this decision, on the 8th of April 1826, the legislature of Pennsylvania passed an act, by which it was enacted, 'That the relation of landlord and tenant should exist, and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between other citizens of the commonwealth.' The ejectment depending in the court of common pleas, of Bradford county, between the plaintiff in error and the defendant, again came on for trial after the law of April 8, 1826, on the 10th of May 1826; and the judge gave in charge to the jury as follows, after stating the above recited act of assembly, to wit: 'It is a general principle of law, founded on wise policy, that the tenant shall not controvert the title of his landlord, and prevent the recovery of his possession, by showing that the title of the landlord is defective. Among the exceptions to this general rule, the supreme court of Pennsylvania have decided, that when the landlord claimed (as the plaintiff claimed on the former trial of this cause) under a Connecticut title, the case should form one of the excepted cases. The legislature have thought proper to enact the above recited law, and by it we are bound. And if the plaintiff in all other respects should be found entitled to a recovery, the mere claiming through a Connecticut title would not now deprive her of her right to a recovery.' A verdict and judgment were obtained in favour of the defendant in error, Elizabeth Matthewson. To the charge of the judge, which is inserted at large and sent up with the record, the defendant excepted, and the judge signed and sealed a bill of exceptions. A writ of error was taken by the defendant to the supreme court of Pennsylvania, and the following were among the errors assigned, to wit: The court erred in charging, 1. That by the laws of Pennsylvania, the plaintiff's testator could lease the land, and that the rights of landlord do extend to him; he having claimed under a Connecticut title. 2. That the act of the 8th of April 1826 gives a right of recovery, and does away the force of the law, as declared by the supreme court in this case. On the first of July 1827, the supreme court, after argument, affirmed the judgment of the court of common pleas. And on the 6th of July 1827, a petition and prayer for reversal was filed by John F. Satterlee, the plaintiff in error, who survived Elisha Satterlee; on the ground that the said court had decided the said act of assembly to be constitutional and valid, though he had insisted that he ought not to be affected and barred of recovery by the said act, for that the said act was not valid, and was repugnant to the constitution of the United States. The cause was argued by Mr. Eli K. Price, and Mr. Sergeant for the plaintiff; and by Mr Sutherland, and Mr Peters for the defendant. Mr Price, for the plaintiff, contended: There was enough apparent on the record to sustain the appellate jurisdiction of his Court. If in fact the act drawn in question is unconstitutional, there is sufficient on the record to give jurisdiction, because it appears that the judge who tried the cause instructed the jury that the act was binding on them as the law; in accordance with the judge's instruction was the verdict of the jury, on which judgment was rendered, and that judgment was affirmed in the supreme court of Pennsylvania, to which this writ of error was taken. This is therefore a case to which the clause of the constitution of the United States is applicable, and which was disregarded; which is all that need appear to sustain the appellate jurisdiction of this Court. Martin vs. Hunter, 1 Wheaton, 304; Inglee vs. Coolidge, 2 Wheaton, 363; Lanusse vs. Barker, 3 Wheaton, 147; Miller vs. Nicholls, 4 Wheaton, 311; Williams vs. Norris, 12 Wheaton, 124; Hickie vs. Starkie, 1 Peters, 94. Is the act unconstitutional so far as it affects rights existing at the time of its enactment? Of the prospective operation of the act we have nothing to say, our complaint being of the divestiture of vested rights. These were the rights of Satterlee to the possession of his estate, derived from the commonwealth, and to take the rents and profits, without, liability to pay the latter or surrender the former to any landlord who as such held a Connecticut title. This was the settled law of the land by the decision in this very case, when first before the supreme court of Pennsylvania. 13 Serg. & R. 133. This decision was evidence of what the law of Pennsylvania had always been. At no time, therefore, did the relation of landlord and tenant exist between these parties. The claimant under the Connecticut title had no rights, and therefore was not entitled to the aid of the liberal principle, that a tenant shall not dispute the possession with his landlord, though he may hold the better title. The decree of Trenton in 1782 had settled the right to the disputed soil in the northern border of Pennsylvania, in favour of that state. The policy thereafter pursued by that state was utterly to exterminate the Connecticut claims within her borders, at the same time that she made great sacrifices to furnish the Connecticut settlers with Pennsylvania titles, by expending her treasures to purchase releases from the holders of them. Among the penal acts to destroy the Connecticut claims were the acts of 1795 and 1802; making it highly penal and criminal to intrude under or convey a Connecticut title. 3 Smith, 209, 525. A more extended history of this unhappy and often bloody controversy may be found in 2 Dall. 304; 6 Binn. 467; 6 Binn. 57; 4 Serg. & R. 281, and 1 Binn. 110. In the last case it was decided, that a vendor of a Connecticut title could not recover from the vendee the purchase money, because the contract being in violation of the law, the plaintiff had no rights in a court of justice. On the same salutary principle was this case first decided. But with the justice and sound legal principle of this decision, which are most apparent, we have nothing to do. It is enough, that by it the law was settled and a rule of property established. That it did establish a rule of property is most evident; but it has also been expressly by the supreme court of Pennsylvania. 1 Serg. & R. 521. Under this rule of property was Satterlee protected in the possession and enjoyment of his estate. By this act, if this judgment is affirmed, will he be dispossessed of his property, made liable to pay the rents and profits to another, and by the conversion of his possession into the possession of the landlord, for ever precluded from regaining his estate. Does not this act then impair the obligation of a contract? The contract is the grant of a title from the state to Satterlee. Such a grant is a contract within the meaning of the constitution of the United States. Fletcher vs. Peck, 6 Cranch, 87; Dartmouth College case, 4 Wheaton, 518. 656. 682; Green vs. Biddle, 8 Wheaton, 1. The obligation of a contract is 'the law which binds the parties to perform their undertaking.' 4 Wheaton, 197. The undertaking of the state of Pennsylvania by her grant, to which the law bound her, was that Satterlee should have and hold the premises granted, to take and enjoy the rents and profits thereof, without liability to surrender the possession or pay the profits to any Connecticut claimant, through the relation of landlord and tenant. By the loss of the possession, Satterlee has been unconstitutionally divested of rights, though the right of possession might remain in him. The possession gives the enjoyment of the rents and profits, which are equivalent to the land itself, and by those terms a title to the land will pass. Possession is itself a title against every body who does not exhibit a better title. It gives a home, which may be invaluable to the owner from the attachments created by long residence, or from its being the place of nativity, or the patrimony derived from a line of reversed ancestors. He who is in possession, may forcibly defend that possession, nay, slay the invader of his habitation, without a breach of the peace or the commission of a crime; while he who is out of possession cannot forcibly take possession, and if he does, though he may have the right, will be dispossessed by the statutes against forcible entry and detainer.

The opinion of the court was delivered by: With the title of the commonwealth in his pocket, Satterlee has by this act been denied the right of defending his possession by it. He has been obliged to confess his possession to be the possession of an alien claimant, whose it never was, and never could have been by any judicial decision that was not suicidal to the state sovereignty. He has been bound in fealty to a landlord to whom, if according to the ancient custom he had taken the oath of homage, it would have been an abjuration of his allegiance to the state; for that landlord claims, in breach of his allegiance, the title of a foreign state. Yet by this act the strong arm of the state is to be exerted to dispossess her grantee, and to deliver it over to the favoured alien claimant who had asserted a title in criminal violation of her laws. And to consummate the injustice as far as the most absolute power could do it, her courts of justice are forever to be closed against a claim on her violated and useless patent. If an individual thus attempted to re-assume the rights he had granted, he would be met by the doctrine of estoppel. For states who have the power to execute their arbitrary will, there is no estoppel but that which is to be found in the paramount law of the constitution, firmly enforced by an independent judiciary. If this act had given Satterlee's estate to a claimant on a title perfectly void, it could not have committed a more flagrant violation of justice and of the constitution; for this title was not only void, but could not have been otherwise than criminally asserted.

It was an attempt by the legislature to encroach upon the judicial power; was passed at the next session, in terms precisely the reverse of the decision of the court, and applied to pending suits, when probably no suit but this was pending to which it was applicable.

If the legislature can thus, by a retrospective act, divest a citizen of his estate, there is no safety for our boasted rights and liberties. It is as impossible to make laws to operate upon the past, without the usurpation of despotic power, as it is to recal the past. Law is a rule of action; but a law which did not exist when an action was performed, could not have been a rule for that action. To make a rule for it after the action is performed, is to substitute the will of the legislature for a rule, which is despotism itself; for what that will may be no man can foresee, and it is the same whether it proceeds from an American legislator or an eastern despot. The Court cannot be unmindful that legislative bodies sometimes act under the impulse of strong and sudden excitement; sometimes inadvertently; that sometimes the good intentions of the many, may be misled by the management and intriguing talent of the few; and a case has been referred to which shows that they are not always inaccessible to corrupt influences.

This Court would not suffer counsel to argue a question so plain as that a legislature could not declare what a law was. Ogden vs. Blackledge, 2 Cranch, 276. This act changes the acknowledged law for the past. It has decided that state bankrupt laws are unconstitutional in respect to contracts made previous to their passage (Sturgess vs. Crowninshield, 4 Wheat. 122); though constitutional in respect to contracts made after their enactment. Ogden vs. Sanders, 12 Wheat. 261.

Retrospective laws are invalid at common law. 7 Johns. 477; 2 Johns. 263; 13 Serg. & Rawle, 353. Nor can property be taken away, not even for public use, without compensation. 2 Dall. 304; 2 Johns. 263; 2 Johns. Cha. Rep. 162; 8 Johns. 388. The principle being the same at common law and under the constitution, they are applicable to this case.

The recovery in ejectment is conclusive evidence of the plaintiff's right to recover in an action for the mesne profits. 2 Johns. Rep. 371; 2 Dall. 156; 2 Burr. 665.

If this judgment is affirmed, Satterlee will lose the rents and profits which he would have held as his own, but for the effect of the act in question.

In Green vs. Biddle, this Court decided laws of Kentucky to be unconstitutional which deprived the owner of a right to recover any part of the profits on a recovery of his land.

The act having brought Satterlee within the operation of the statute of limitations, if he be dispossessed by the affirmance of this judgment, it has totally deprived him of all remedy. By the loss of all remedy all right is gone. For every right it is a maxim that there is a legal remedy for its violation. The converse of this must therefore be true, and if there be no remedy there is no right.

If this Court has not decided that the destruction of all remedy by a state law is an unconstitutional act, the several judges have at least expressed such an opinion. C. J. Marshall, 4 Wheaton, 207; Justice Washington, 12 Wheaton, 271, 267; Justice Johnson, 286; Justice Thompson, 295, 301; Justice Trimble, 327; Justice Story, 8 Wheaton, 12; and state decisions, 5 American Law Journal, 520, 8 Mass. 423, 430, 12 Serg. & Rawle, 358.

Mr Sutherland, for the defendant:

The question submitted in the present case was one of great interest; not only to the defendant, but also to the free exercise of the legislative powers of the state of Pennsylvania. The question arose out of the act of the assembly of the state, entitled 'an act relating to Connecticut settlers,' passed the 8th day of April 1826.

On the case as presented by the plaintiffs, the act is alleged to have been passed on the 28th, whereas it was in fact enacted into a law on the 8th of April 1826. It is therefore respectfully submitted to the Court as a preliminary point, whether they will not dismiss the writ of error for want of certainty in the date of the act; as we contend that under the decisions already made in this Court, it should distinctly and not by reference appear that a statute of a state was drawn in question, upon the ground of its being repugnant to the constitution of the United States, and that its decision was in favour of its validity.

But if the Court should decide that the record presents a case, so as clearly to bring the question before the Court; then it is respectfully contended, 1. That the decision of the supreme court of Pennsylvania, 13 Sergeant & Rawle, 133, was contrary to law. 2. That the act of the legislature of Pennsylvania, passed March 8th, 1826, was an explanatory act, and therefore constitutional. 3. That the judgment of the supreme court of Pennsylvania, which the plaintiff in error seeks to reverse, did not impair but affirmed the obligation of a valid contract, and was not against the constitution of the United States. 4. The judgment of the supreme court of Pennsylvania in the case now submitted to this Court for revision, was not made upon the authority of the act of assembly of the 8th of April 1826, but upon the known and established law of the state.

It is contended, that the first decision of the supreme court of Pennsylvania was erroneous. It appears from looking back into the early history of Pennsylvania that a number of persons emigrated from the state of Connecticut, and settled in some of the northern countries of Pennsylvania. They alleged that the charter of Connecticut, being of an older date and covering the soil in question, they were legally entitled to settle on the lands in question. Out of this dispute originated the celebrated Wyoming controversy, which produced the decree of Trenton, which went in favour of the jurisdiction of the state of Pennsylvania. A number of laws were passed by the legislature of Pennsylvania relative to the Connecticut settlers. The most important were, what was denominated the 'intrusion act,' and the act suspending the operations of the statute of limitation in that region of country. The act to prevent intrusions was highly penal. The first section provided, that if any person shall take possession of, enter, intrude, or settle on any lands within the counties of Northampton, Northumberland or Luzerne by virtue or under colour of any conveyance of half share right, or any other pretended title not derived under Pennsylvania; he shall on conviction, &c. forfeit and pay two hundred dollars, &c. and be subject to imprisonment not exceeding twelve months.

The 2d section declared, that every person who shall combine, or conspire, for the purpose of conveying, possessing or settling any lands within the limits aforesaid under any half share, right or any pretended title as aforesaid, or for the laying out townships by persons not appointed or acknowledged by the laws of Pennsylvania, and accessaries thereto; shall forfeit and pay not less than four hundred dollars and not more than one thousand dollars, &c. &c. and be subject to imprisonment at hard labour not exceeding eighteen months.

The 8th section enacts, that on trials of indictments for such intrusion, proof, that the person indicted, entered into, intruded, settled on, or was in possession of the land, before the time of finding the indictment, shall be sufficient to convict thereof; unless defendant shall prove that he or she entered upon, took possession of, and settled on such land before the passing of the original act, 11th of April 1795.

When the case of Matthewson vs. Satterlee, 13 Serg. & Rawle, 133, came up before the supreme court of Pennsylvania, the impression, as is evident from the report of the case, upon the minds of the judges of the court, was, that the intrusion act was in full operation. For it no where appears either in the argument of counsel or the opinion of the judges, that any thing had been said about its repeal. The act however had been repealed. This opinion was no doubt based upon the case of Mitchel vs. Smith, 1 Binn. 110. The plaintiff there sold the defendant a tract of land, lying in the county of Luzerne, and held by him under a deed from a committee of the Susquehanna Company, under the Connecticut title, and not derived from the authority of this commonwealth or the late proprietaries of Pennsylvania; and gave his note for $483 33 cents, payable in three years. The suit was on the note. The principal question, says the court in that case, is whether this be a legal or illegal consideration for the bill, and whether the contract for the sale and purchase of this land is a violation of the laws of this commonwealth, so tainting the whole transaction, as that this court cannot legally afford their aid to carry the contract into execution. The court say, the mischief intended to be remedied by the act of the 11th of April 1795 (the intrusion act) was of a grievous nature. A warfare had been carried on between the claimants of land under Connecticut and the claimants under Pennsylvania for many years, and many lives were lost in the contest; the court then go on to state that the decree of Trenton being in favour of Pennsylvania, 'the intrusion act' was passed to enforce the rights of that state, and finally decide that the action for the note could not be sustained.

But the intrusion act having been repealed, the case of Mitchel vs. Smith is now no authority; and independent of the repeal of the intrusion act, the decision of the court in 13 Serg. & Rawle was erroneous, because the penalties of that law were never extended to apply to a case like Matthewson's. The 8th section, by special provision, excludes Matthewson from the operation of it. 'No person is to be liable to the severities of the law who could prove that he entered upon and took possession of, or settled on such lands before the passing of the act of the 11th of April 1795. Matthewson took possession as far back as 1784 or 1785, ten or eleven years before the existence of the intrusion act.

In the course of a short time after the repeal of the intrusion act, the law suspending the operation of the statute of limitation in this section of the commonwealth, was also repealed. This was the last and only act remaining upon the statute book, to the prejudice of the Connecticut settlers. So that if Matthewson had not ever settled upon these lands, and leased them to Satterlee, long prior to these enactments, framed for the purpose of preventing any more intrusion from the settlers of New England; yet, their total and unqualified repeal, afterwards, would have been sufficient to entitle him to the benefits of all the laws to which other persons settling in Pennsylvania were entitled. Under this view of the facts connected with this case, we have but one mode left for accounting for the decision of the supreme court of Pennsylvania, and that is the one heretofore adverted to; by supposing that the repeal of 'the intrusion act,' as well as 'the act suspending the operation of the limitation act,' had not reached them. Certainly their repeal is not to be collected either from the argument or opinion of the court, in the case of Satterlee vs. Matthewson, 13 Sergeant & Rawle. It being therefore, evidently, an oversight on the part of the court, we contend that the act of the 8th of April 1826, became necessary to effectuate justice between the parties, and to declare what was really the law at the time the erroneous decision of the court was pronounced. We therefore maintain the position, that the act of the 8th of April is constitutional.

Indeed it is nothing more than a declaratory or explanatory act. It was but a re-enactment of what was understood in that part of the state to have been the law from the year 1785 down to 1813, and certainly ever since the repeal of the acts of restriction. Surely, an undisturbed practice for twenty-eight or thirty years, during which period no tenant in the situation of Satterlee had brought a case of the kind into a court of law, ought alone to settle this question in favour of Matthewson; and to have satisfied the supreme court of Pennsylvania, that the title of the landlord, obtained prior to the intrusion act, could not be contested by his tenant.

But Satterlee became the tenant of Matthewson prior to the act of intrusion; and when the law was passed, exempting Matthewson from the effects of the intrusion act, Satterlee was his tenant.

By referring to the act of the 8th of April, it will be found, that its provisions are to apply to the 'trial of any cause then pending, or hereafter to be brought;' and it is alleged, that its application to a cause in court, proves it to be unconstitutional; and that it wears none of the features of an explanatory act. It is not necessary to call an act in its title an explanatory act, to make it so. If in its design and effects it is explanatory, that is sufficient. If the law of the 8th of April had not applied to the cause in court it would not have remedied the evil. This was the only cause of the kind that had ever been decided, and the legislature being satisfied that the court had misapprehended the meaning of the law, passed this act by way of explanation.

Again, it has been suggested that this act violates the obligation of a contract, and affects vested rights; because it 'does away the force of the law, as decided by the supreme court in this case.'

In 15 Sergeant & Rawle, our present case, the court say that the case of Overton vs. Tracy, reported in 14 Sergeant & Rawle, virtually overrules the decision in 13 Sergeant & Rawle of Satterlee and Matthewson, which decides that a tenant may resist the title of his Connecticut landlord. So far therefore as the judgment of the supreme court has decided the law, it is in our favour. For it appears, that in the very next volume of reports, a case is decided virtually revoking the former decision. They had no vested rights under the first judgment of the court, as it was an erroneous one. This question would have never reached this Court, nor would we have heard of the infringement of vested rights, if the supreme court had not given an incorrect opinion in the first instance.

But let us look at the law, as it stood between Satterlee and Matthewson. Matthewson leased the property in question to Satterlee. It was also agreed that either of the parties might put an end to the tenancy at the end of one year. All this took place when there was no act in existence against Connecticut settlers in Pennsylvania; on the contrary, many of the New England men had gallantly defended the northern borders of the state, where this land is located, from Indian barbarities, and many of them lost their lives there.

Under such circumstances, no one could imagine that the men, who thus exposed their all in defence of their settlements, could be driven from them afterwards by honest or upright legislation. Hence we find the assembly of Pennsylvania, in 1784, passed an act for restoring possessions from which the Connecticut settlers had been removed. 7 Smith, 531. And when they enacted the law to prevent intrusion from new emigrants, they cautiously and with a just regard for good faith, declare, that their enactments shall not apply to those who resided there before the passage of the law. Both Matthewson and Satterlee had been there from ten to twelve years before the act adverted to had been passed. By excluding the prior settlers and defenders of the state from the operation of the intrusion act, they virtually passed a law preventing them from disturbance in their possession. And as such, they were entitled to all the benefit of the laws of the state. During this time of peace and quiet, the lease was made; and all the inhabitants of Pennsylvania were subject to the same laws. At that time the tenant could not resist the title of his landlord. He was bound to deliver up possession, if he claimed through or by an outstanding title. We hesitate, therefore, not to say, that the act of the legislature of the 8th of April 1826, violated no contract; but on the contrary it prevented injustice by sustaining a contract, made upon the purest principles of good faith.

Mr Peters, for the defendant, contended that there is nothing in the record to show upon what principles the supreme court of Pennsylvania decided the case, or what in fact was the decision of the court. The facts of the case may be found on the papers which come up with the record, but there is no certificate by the clerk that the same are part of the proceedings of the cause. The certificate signed by the clerk affirms nothing more than the docket entries; and to all the papers in the case the clerk's certificate has no application.

If by the law of Pennsylvania, a judge who tries a cause is bound to file his opinion, and the same when filed becomes a part of the record; the law enjoins this duty only when the judge is so required; and there does not appear to have been any request in this case. 5 Smith, 197. Neither does the record show that the paper, which purports to be the opinion of the court, was filed by the judge. Its language would authorise the assertion that it had been drawn up by another. Nor do the exceptions to the charge of the court of common pleas, which were presented before the supreme court, exhibit the particular matters which are presented to this Court as ground of error in the court of Pennsylvania; and if this Court are to consider these exceptions as bringing up the whole charge of the judge of the court of common pleas, they will have to decide upon the relevancy of all the matter in the charge, and to review the same; some of which this Court are not judicially competent to examine.

Thus, therefore, as the charge of the court is not legally upon the record, and there is no exception which is sustained by the actual or certified record, nothing is before the Court in the form of assigned errors, upon which they can form an opinion. Again, unless in the form of instructions to the jury, the opinion or charge of the court can in no case constitute a part of the record.

In Williams vs. Norris, 12 Wheaton, 117, this point was explicitly decided as has been stated. The law of Tennessee, like that of Pennsylvania, requires the judges to file their opinions, in writing, among the papers of the cause.

We do not deny the right of this Court to decide upon the constitutionality of a law of a state, where the question is fairly and regularly presented for determination, according to the provisions of the act of congress, and the settled rules of this Court; nor that an act of a state is unconstitutional if it impairs the obligation of a contract; nor that the grant of titles to lands by a state, is a contract within the meaning of the constitutional provision.

All the principles claimed by the counsel for the plaintiff in error upon these points, are therefore entirely conceded.

But admitting all these principles, it is submitted, that this is not such a case as comes within them, or as this Court can judicially notice.

To constitute such a case, it must appear from the record, that the constitutionality of the law of the state has been drawn in question, and that the decision of the court was in favour of its validity. Martin vs. Hunter's lessee, 1 Wheaton, 304. 323. 352.

The judgment of the state court, to be reviewed in this Court, must not only appear to have been on the validity of the legislative act; but it must also appear that the judgment of this Court was upon no other point. If, on the record, it appears that the court of this state may have decided upon the rights of the parties before them, without deciding upon the constitutional question, and it is not expressly shown ...

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