nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." The exercise of such a power could never be necessary. By the existing laws of that state, Judges of Probate had very extensive jurisdiction to license the sale of the real estate of minors by their guardians. If the jurisdiction of that court was not sufficiently extensive to reach all proper cases, it might be a good reason why that jurisdiction should be extended, but could hardly be deemed a sufficient reason for a particular interposition of the legislature in an individual case. If it was fit and proper that a license should be given to one guardian, under particular circumstances, to sell the estate of his ward, it was fit and proper that all guardians should, under similar circumstances, have the same license. Such was the spirit and genius of their institutions. That an act of the legislature to authorize the sale of a particular minor's estate, by his guardian, could not be reconciled with the spirit of the article in the bill of rights, above cited.(a) This case may, perhaps, be regarded as in conflict with the decisions in other states.

§ 351. Where a legislative act does not in any manner determine any matter of fact, or of right, dependent upon matters of fact, such an act is not liable to an objection that it is the exercise of judicial powers; this principle has been recognized in many adjudged cases. In accordance with it, it has been held, an act of the legislature may be constitutionally passed which authorizes the sale of the estate of a deceased person for the payment of his debts generally, without any determination of the fact of, or the extent of such indebtedness, to any particular

(a) Opinion of Judge, 4 N. H. R. 572.

person. This doctrine was affirmed by the federal court in the case of Watkins v. Holman.(a) The same doctrine has been held by several of the state courts.(b) The case of Watkins v. Holman was placed on the distinct ground, that the act was remedial; it contained no other features. An authority was given to the administrators to sell, in a particular manner, the property of an intestate, for the payment of his debts. It did not determine the amount of debts, nor to whom they were payable. It was proved the estate was insolvent. It was in conformity to the settled policy of the state which had passed the act in question, to apply the real estate of a deceased person in payment of his debts. The case then under consideration was one where the administrator resided in Massachusetts, and was desirous of selling the estate through an attorney, which did not come within the general act on that subject, and hence the necessity of a special act. This act, although special, did not in principle differ from the general law on the same subject, which was passed with knowledge on the part of the legislature, of its expediency and necessity. The special act was passed from a knowledge of its propriety in the particular case. The general law had pointed out a particular mode of procedure. That mode was required by the legislature from motives of expediency; but it by no means followed, that it was the only mode they could adopt. This was a question of power and not of policy, and on such a question the court could not test the act by any considerations of expediency. As it regarded the question of power in the legislature, no objection was perceived to their subjecting the lands of the deceased to the payment of his debts, to the ex

(a) 16 Peters' R. 59.

(b) Kirby v. Chilwood's Adm'rs., 4 Monroe R. 94.

clusion of his personal property. The legislature regulated descents, and the conveyance of real estate. To define the rights of debtor and creditor was their common duty. They might authorise a guardian to convey lands of an infant, which descended to him. They might give capacity to the infant himself to convey land. The idea that the lands of an infant, which descended to him, could not be made responsible for the payment of the ancestor's debts, except through a decree of a court of chancery, was novel and unfounded. So far from this being the case, the court had no doubt, that the legislature of a state had power to subject land of a deceased person to execution, in the same manner as if he were living. The mode in which this should be done was a question of policy and not of power, and rested in the discretion of the legislature.

§ 352. In Kirby v. Chilwood's Adm’rs.,(a) in which was involved the validity of an act of the legislature, which directed the sale of real estate of infants for the payment of the debts of the ancestor. Chief Justice Bibb, in delivering the opinion of the court, remarks: "The exercise of such a power has been, at least in one instance, resisted by the executive department, but has not been hitherto a subject of minute investigation in the judicial department. Indeed, these acts are so various in their nature, and different in their circumstances and objects, that no one constitutional provision could, perhaps, embrace the whole, and many must rest on their particular circumstances, and be opposed by different constitutional provisions. In the legislative department they have not been adopted without opposition, arising from constitutional objec tions; and it is perhaps a matter of regret, that so many

(a) 4 Monroe, 94.

have passed that body. One great objection seems to be, that the power of infants over their real estate is denied to them by the general laws of the land, and while their own volition is thus restrained, and their hands tied, these special laws dispose of their real estate, without their concurrence, without permitting them to be consulted; and whether the legislature can dispose of their real estate, and take it from them, by laws which operate like the revocation of a grant, consistently with every constitutional provision, is a question of much importance; but the particular circumstances of each case, and the object of the legislature in making such act, ought to be considered in deciding on each of these acts. We are aware that one objection, which presents a question of acknowledged difficulty, presents itself against legislative transfers of estates, without the consent of the owner, and that is, is such a proceeding within the scope of legislative authority, or is it a power belonging to other departments of the government, or to individuals themselves?" This point he did not pass upon, as the legislature had the power of subjecting estates to payment of debts; that this was within the compact, and conceded to legislative authority.

§ 353. Shehun's Heirs v. Barrett(a) involved the constitutionality of an act of the legislature of Kentucky, passed in 1796, with a preamble appointing commissioners over the estate of J. Barrett, for the benefit of his creditors. The preamble recited that Barrett had died intestate, leaving but little personal estate, and considerable lands; that he had sold, and not conveyed many of these lands, and that others would be lost for want of attention, and as nobody would administer upon his estate, his creditors were suffering. The act then vested

(a) 6 Monroe, 502.

the estate in certain commissioners, who were directed to convey in fulfilment of his contracts for lands, and to sell his personal estate and pay his debts, and if that proved insufficient, to sell and convey so much of said lands as might be necessary for that purpose, on a credit, and to apply the proceeds in discharge of his debts. They were also authorized to sue for debts due the estate, and made subject to suits by creditors. The court decided, on the authority of the case last cited, the act a valid one, as it had been held, that where real estate ought, by the general law of the land, to be sold for the payment of debts, the legislature might subject it by a special law for that purpose, when the rights of the parties concerned were held inviolable. The court however said, "We are still disposed to confine this decision exclusively to one class of cases, viz., to the subjecting lands to debts by special act, which were before subject to the same debts by the general laws of the land, without materially affecting the rights of parties; and we would not be understood as giving our sanction to other appropriations of the real estate of minors for other purposes." A learned judge, in another case, commenting on the two cases last cited, held, that he could discover nothing in them but doubtful affirmances of acts, where the sales were for the benefit of all the creditors, and the conveyance of land according to the previous contracts of the intestate. He then adds, "These cases are clearly distinguished from the case under consideration,(a) (to wit, a special act to sell land to pay particular debts, in specified sums, to particular creditors.) The acts in those cases were for the benefit of all the creditors of the estate, without distinction, and in one case in addition for the purpose of perfecting titles

(a) Lane. Dorman, 3 Scam. R. 243.