# Den v. Hoboken Land and Improvement Company

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United States Supreme Court
59 U.S. 272
Den v. Hoboken Land and Improvement Company
THESE three cases came up from the circuit court of the United States for the district of New Jersey, upon a certificate of division in opinion between the judges thereof.
As the opinion of the court answers only the third question, it may be proper to say that the first two related to a mortgage executed by Henry Ogden, as the attorney in fact of Swartwout, to Henry D. Gilpin, solicitor of the treasury. It was necessary to the case of the plaintiffs to get rid of this mortgage in the first instance, and afterwards to avoid the sale under the distress warrant. If they failed in the last, the points raised in the first two questions became of no practical consequence, and, therefore, answers to them were not returned by this court.
The case is stated in the opinion of the court. The decision of one involved the two others, as they depended upon the same principles.
It was argued by Mr. Van Winkle and Mr. Wood, for the plaintiffs, and by Mr. Zabrinski, Mr. Gillett, Mr. Butler, and Mr. Bradley, for the defendants.
The points relating to the power of attorney and the mortgage need not be noticed.
The counsel for the plaintiffs contended that the acts of congress, authorizing these proceedings under a distress warrant, were unconstitutional and void, because,--
The proceeding to establish this claim was, in its nature, a judicial proceeding, and could only be carried out under the judicial power. Const. U.S. art. 3, §§ 1, 2; 4 Devereux, 1, 13.
By the judicial power in the constitution, was meant that portion of such power which was recognized and understood to be such at the time of the adoption of the constitution. Federalist, No. 80; 2 Brock. 447.
This summary proceeding was considered and enforced as a judgment at law. 3 Wheat. 212, 222.
The warrant to sell and imprison is an execution issued upon a judgment. 9 Pet. 8.
The secretary of the treasury cannot be constituted a court for the exercise of judicial power. Const. U.S. art. 3, § 1.
The power of review of law and fact, given by the act to a court, does not change these views.
The proceeding in question took place without any hearing by the debtor and without a trial by jury, and is, therefore, unconstitutional and void. Article 7 of Amendments of Constitution; 5 Johns. 37.
As process, it was unconstitutional, because it changed the onus, and required the debtor to disprove the debt.
This process deprives of liberty and property without due process of law, contrary to the 5th article of amendments to the constitution.
This meant, by process of law, as then understood, charge, defence, judgment before and by a legally constituted court. Co. Lit. 2 Inst. 47, Magna Charta, chs. 8 and 29; 2 Kent's Com. (5th Ed.) 13; Story on the Const. § 1783; Sullivan's Lectures, chs. 39 and 40; Taylor v. Porter, 4 Hill, 146; Fletcher v. Peck, 6 Cranch, 138; Bank of Col. v. Oakley, 4 Pet. Cond. R. 443; 4 Cranch, 439; Van Zandt v. Waddell, 2 Yerger, 260; Jones's Heirs v. Perry et al. 10 ibid. 59; Bank of the State v. Charles Cooper et al. 2 ibid. 599; Lane v. Dorman, 3 Scam. 238, 241; White v. White, 5 Barbour's S.C.. R. 481-483; Holden v. James, 11 Mass. 404.
No implied or express consent can make valid what is unconstitutional.
The distress warrant was not supported by oath or affirmation. Amendments to Constitution, article 4.
If the proceeding is constitutional, still, the statute must be strictly pursued. 6 Pet. 470; 3 ibid. 8; 1 Scam. 323; 6 Wheat. 119.
But it does not appear that there were no goods or chattels upon which to levy; on the contrary, that the marshal levied upon some, but failed to sell them.
The counsel for the defendants contended:--
That these proceedings were not judicial acts. That they were the well-known proceeding by distress, established at common law, and regulated by statute in most of the States before the adoption of the federal constitution. 3 Black. Com. 3, 6.
Prior acts of congress regulated distress warrants. 3 States. at Large, 173, §§ 26, 14.
They have none of the characteristics of judicial proceedings. 1 Curt. Com. 99; 13 How. 40.
This court has laid down the distinction between the judicial power intended by the constitution, and this power conferred upon a particular officer. 8 Pet. 8; 6 ibid. 47; 13 How. 4, 52, note.
Mr. Justice CURTIS delivered the opinion of the court.

## Notes

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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