USA > Vermont > Vermont state papers; being a collection of records and documents, connected with the assumption and establishment of government by the people of Vermont; together with the first constitution, and the laws from the year 1779 to 1786, etc > Part 62
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The auditors having (as this Council is informed) made such demand in writing, of the Honorable John Fasset, Esq., for the papers in his custody as commissioner of sequestration and sales, and he having refused delivering them agreeable to the demand, the auditors directed a suit to be commenced against him for the penalty contained in the act. Subse- quent to which, (we do not assert it was done with the view of embarras- sing the auditors in the performance of their duty, or of screening one of their members, but it had this effect) on the 16th of October, 178-1, the Council received papers of this kind from Mr. Fasset, (by him declared on oath to be the whole, to the best of his knowledge and remembrance) which had come to his hands as commissioner of sequestration, and dis- charged him therefrom accordingly. Of this transaction, (although a quorum of the auditors were then, and for thirteen days after, at the place where the Council sat) the auditors were kept in profound ignorance ; and if the uncommon severity of the season had not prevented, the sher- iff' would have served their writ upon Judge Fasset some time after he was discharged from the papers by the Council. How the auditors are now to come at those papers, time must discover.
It appears from the journal of Assembly, that in February session, 1782, a grant was made to Jolin Wheeler and his associates, of a gore of land adjoining Lunenburgh ; but difficulties having occurred in ascer- taining the precise local situation of Lunenburgh, it appears from the journal of Council, that a charter was directed to be made out on the 28th of October last, of another gore, in lien of the former, but without a pre- vious grant being made by the Assembly. This proceeding being so evident an infringement upon the power vested in the Assembly, and a!
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so late a period, calls for the severest censure of the freemen, and of this Council. .
We now beg your attention in a retrospective view of such acts of the Legislature as we have selected for that purpose, some of which are of general concern, and very important in their consequences, while the operation of others is confined. within narrow limits, and scarcely wor- thy public notice for any other reason than lest they be drawn into pre- * cedent.
We would previously observe, in the words of the great Mr. Locke, who, speaking of legislative power, lays it down as the fundamental law of all commonwealths, " that the legislative cannot assume to itself a power to rule by extemporary and arbitrary decrees, but is bound to dispense law and justice, and to decide the rights of the subject by promulgated, stand- ing laws, and known authorised judges. And that men give up their natural independence to society, with this trust, that they shall be gov- erned by known laws ; otherwise their peace, quiet, and propriety, will be in the same uncertainty as in a state of nature."
The first act of legislation we shall notice, is the last clause of a statute passed 23d February, 1779, entitled, " An act making the laws of this State temporary ;"# by which it is enacted, " That no court or justice, shall take cognizance of any matter or thing, in which the title of land is concerned, or in any action of contract, where the parties appear to have made a bargain or contract, by note, bond, debts, or agreement in wri- ting, or otherwise; any act or law to the contrary notwithstanding." "This statute, together with those other passed from time to time, prohibiting the trial of the titles to land, appears to this Council to militate against the ninth article in the Bill of Rights, which is expressive of the design of forming social compacts, viz : " That every member of society hath a right to be protected in the enjoyment of life, liberty, and property,"- against the thirteenth article in the Bill of Rights, " That, in contro- versies respecting property, and in suits between man and man, the par- ties have a right to a trial by jury, which ought to be held sacred :" and also against these words of the XXIIId section in the Frame of Govern- ment, -- " All courts shall be open, and justice shall be impartially ad- ministered, without corruption or unnecessary delay."
We would ask how property is to be legally protected, if not by the several courts administering justice, according to the known laws of the land ? How parties can be said to enjoy their right of trial by jury, when the Legislature prohibit a trial of any kind ? And how courts can with propriety be called open, within the meaning of the Constitution, or jus- tice be administered therein impartially, without unnecessary delay, when they are disenabled to take cognizance of any matter wherein the title of land is concerned, and of any action founded upon a contract ; which are nine tenths of the causes where justice is sought ? How far the singular condition of real property within this cominonwealth, and our peculiar political situation, ought to extenuate shutting the courts of justice with respect to landed property, is with you to decide : but a Legislature's
* See page 388.
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preventing suits being brought upon all private contracts, is an unheard of transaction, and one which we presume will not be accounted for by the impartial world, and by posterity, upon principles very honorable to the promoters of it.
The laws to prohibit the judicial courts trying land titles, above allu- ded to, passed 22d October, 1779, *- 8th November, 17801-5th March, 1784,į and 29th October, 1784.§
The act passed by the Legislature on the 22d of October, 1779, " ap- pointing commissioners for the better regulating titles of land within this State, and declaring their power,"|| (although this Council is not inform- ed that any trials in pursuance of it have been completed) ought not to escape your notice.
This act appoints five persons, commissioners, any three of whom are empowered to take into consideration, and fully examine, all the evidence relating to, or respecting, the titles of controverted lands in this State : to send for persons ; to administer oaths ; to call upon the parties for char- ters, patents, deeds of conveyances, &c. and to examine the parties upon oath. And they were to make report to the Assembly, at their next ses- sion in October, which of the various claimants to the same land, onght, in justice and equity, to possess, and forever hold the fee of, said land, &c. &c. The act prescribes a mode of process for convening the parties, makes provision for hearing them for and against the report of the com- missioners, and declares, that the resolution of the Assembly thereupon (when recorded) shall be an indisputable title to the lands, against all parties in the trial.
It is very usual for all public bodies, whether consisting of one, or many natural ones, whose power is short of despotic, to wish for an increase of it ; and to aim at that object as invariably as the needle, without obstruc- tion, points to the pole. Here was an extensive grasp at the agreeable desideratum of uncontrolled dominion : trials by jury, in the most im- portant disputes concerning property, wholly thrown aside : the Legisla- ture assuming to themselves the judicial power, so far as respected all the permanent property in the State, and casting aside all restraints of law in their decisions, they were to determine every cause, without being shackled with rules, but by their crude notions of equity ; or in other words, according to their sovereign will and pleasure ; by which means, all the landed interest in the commonwealth (which, in other nations and States, has constantly been viewed as sure and permanent to the owner) would be at the absolute disposal of the legislators, and the surest title to an estate in Vermont would be the favor of its Assembly : and this chain of adamant would be effectually riveted, as redress (without a dis- solution of government) could not be expected ; none but the Legislature, whose interest it would be to withhold it, being competent to give it.
What means were made use of by a kind over-ruling providence to prevent this law being carried into execution we have not learned, but have much reason to be grateful for the event.
The last preceding observations render it unnecessary to say any thing more respecting an act passed October 22d, 1779, entitled, " An act con-
* See page 392,-t See page 405, -- $ See page 488, -- § See page 194 -- | See page 392. 1 3
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stituting the superior court a court of equity, and declaring their power ;" ?? and an act passed 22d February, 1781, " For quieting disputes concern .. ing landed property ;"i than that they appear to have originated from the same source ; and were designed to exalt the legislative, at the expense of the judicial department ; as the former gives the Governor, Council, and Assembly, the powers of a court of chancery, in all causes exceed- ing four thousand pounds consequence, and the latter erects them into a court for the decision of all disputes between proprietors holding under different charters issued by the same authority.
The several statutes passed for obliging creditors to accept the produce of the country, in lieu of money, are also considered by this Council as violations of that protection, which, by the general and fundamental laws of society, and by the ninth article in the Bill of Rights above mentioned, every individual has a right to expect for his property, upon his entering into civil society. We leave them however, (if that can be the case) to be justified by the extremity of the times, and hope for better, when such expedients shall be thought unnecessary.
The act alluded to in the last preceding observation, passed 21st June, 1782 ;¿ October 21st, 1782 ;§ and 25th February, 1783.||
The act to suspend prosecutions against Joseph Farnsworth, Esq.[] passed 29th October, 1784, is also esteemed by this Council to merit the serious attention of the freemen of a commonwealth, which has yet a char- acter to gain amongst the kingdoms and States of the earth. It declared, " That no actions should be commenced, prosecuted, or proceeded in, against Joseph Farnsworth, Esq. commissary-general of purchases, for contracts made by him in his public capacity, as commissary, until the fising of the Legislature in October then next."
It is the undoubted duty of the Legislature, when there is an absolute necessity of substituting credit for money, to do it with as much caution as a prudent man would in his private affairs ; and as carefully to guard against a diminution of that credit, by providing means of payment at the prefixed time, as a discreet merchant would in his mercantile transactions : and if a State is deficient in these prudential maxinis, the odium ought to be proportionate to the magnitude of the consequences.
It is therefore, with real concern this Council observes, that so many precedents have been afforded of late years, in this western hemisphere, of breach of contracts made on behalf, and by authority of, the public, as with many, in a great degree, to sanctify the measure : and that, after proceeding from one delusion to another, it has terminated in the almost total loss of public credit. And it is with equal satisfaction we have re- marked that this State has, in general, shewn an honest disposition in ful- filling its contracts with individuals, so far as has been in the power of government, by paying them something of real value. This the Legisla- ture has been enabled to perform, by levying taxes in some degree pro- portionate to the public expenses, and enforcing the collection of them : and if the exigencies of the community liave necessitated the contrac- tion of debts, the good disposition manifested in discharging those debts,
* See page 391 .-¡ See page 424 .- 1 See page 455 -¿ See page 461 -| See page 4.0. T See page 494.
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has preserved our public credit with individuals ; and the trifling depre- ciation, which the public securities of this State have at times undergone, has proceeded rather from a scarcity of specie, and the example of sur- rounding States, than a fear of their being redeemed at their original value.
The act above mentioned in favor of Mr. Farnsworth, is considered by .this Council as one stride towards the destruction of that credit ; and the more injurious to the persons interested, as they must have waited a con- siderable time upon the public, before passing this act. A few more legis- lative procrastinations would have taught individuals the folly of trusting their property where the power and disposition to evade payment were united.
It behooves the freemen, in the opinion of this Board, as a matter of the last importance, to keep a watchful eye over every step of government which tends to sap public credit, and to manifest their severest resentment thereat.
We cannot dissolve the Council of Censors, with the pleasing satisfac- tion of having conscientiously discharged the trust reposed in us, if we omit noticing (however disagrecable it may be to many influential persons in this commonwealth) a law passed by the Legislature in their last ses- sion, under the title of, " An act for settling disputes respecting landed property."* This Council is of opinion, considering the various diffi- culties of coming to the knowledge of a good title to lands in this com- monwealth, which originated from, and have been cherished by, the con- tentions of different States claiming this territory, it is equitable that pro- vision should be made by the Legislature, in favor of persons who made bona fide purchases from pretended owners, while it was out of their power to know with certainty in whom the title was vested ; (though we cannot agree in sentiment with the Legislature, that the defrauded pur- chasor should be allowed to recover his damages, both from his voucher and the owner of the soil.) But that trespassers, who have no pretence of a title, should, by legislative authority, be enabled to recover from the legal owners, (who, in numberless instances, have been kept out of pos- session, sorely against their will, and to their great impoverisliment ) the value of their improvements, is sanctifying iniquity by law ; and, by a post facto act, depriving the owners of such property, of their right of action against the trespassers : (which remedy, when the intruder has done more injury than benefit to the farm, it is equitable the owner should have) and it is giving a reward to persons for transgressing the laws. In whatever light this part of the act is viewed, it may truly be said to be unprecedented and'unparalleled ; and will, unless revised and materially altered, be an indelible blot in the annals of our history, afford our enemies the most solid argument they have yet offered against the reasonableness of our existence as a sovereign State, and be the greatest inducement to our friends to desert us, as having too little wisdom, or too much cunning, to hold the reins of an independent government.
We are sorry occasion is afforded us to remark, that the Legislature especially in the former part of the septenary, have in some instances de- viated from the humane spirit manifested in the XXVIth section of the
Ste page 500.
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`ADDRESS OF THE
Frame of Government : that by directing corporal punishment to be in- flicted for offences not infamous in their natures, that chastisement is ren- dered less disgraceful to the delinquent, and less beneficial to society, where the crimes require it.
Nor ought the fickleness of the Legislature, and their want of delibera- tion in passing laws, to escape the observation of this Council. Few acts, of general concern, but have undergone alterations at the next session after the passing of them ; and some of them at many different sessions : the revised laws have been altered-re-altered-made better-made worse ; and kept in such a fluctuating position, that persons in civil com- mission scarce know what is law, or how to regulate their conduct in the determination of causes. If the Legislature in this particular have in- tended to be faithful guardians of the people, they have acted as very un- steady or improvident ones .*
It is the opinion of this Council, that the General Assembly, in all the instances where they have vacated judgments, recovered in due course of law, (except where the particular circumstances of the case evidently made it necessary to grant a new trial) have exercised a power not dele- gated, or intended to be delegated, to them, by the Constitution. This mode of proceeding is an assumption of the judicial power in the last re- sort, and renders nugatory that important article in the Bill of Rights which provides, " That in all suits between man and man, the parties have a right to a trial by jury, which ought to be held sacred."' It su- percedes the necessity of any other law than the pleasure of the Assem- bly, and of any other court than themselves : for it is an imposition on the suitor, to give him the trouble of obtaining, after several expensive trials, a final judgment agreeably to the known established laws of the land ; if the Legislature, by a sovereign act, can interfere, reverse the judgment, and decree in such manner, as they, unfettered by rules, shall think proper. If such is their constitutional authority, it would be a mer- cy to prohibit any other persons than themselves the exercise of judicial powers. 'The legislative body is, in truth, by no means competent to the determination of causes between party and party, nor was, by our Con- stitution, or that of any other country who make pretences to freedom, ever considered so (not taking into view the amazing expense it would . bring upon the public, and the disadvantage of its engrossing that time which ought to be occupied in their more important and proper employ- ment of legislating.)
If one set of men are to enact and execute our laws, and when they do not find one to answer a particular purpose, to make it instanter ; or in other words, if they are to possess all the authority as judges, which they, as (legislators, are pleased, from time to time, to confer on themselves, unhappy indeed is the lot of this people.
The instances alluded to of judgments being vacated by legislative acts are as follows, viz. " An act to set aside, and render null and void in law, a certain order therein mentioned," passed Gth March, 17 84 :
"The application of this censure to later periods in the history of Vednout legisla- tion, i- too striking to escape notice. It is not, however, the only part of this address which may be profitably read by the legislators of the present day.
i See page 43C.
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" An act to reverse the several judgments therein mentioned," passed 9th March, 1784 :* " An act to secure Daniel Marsh in the possession of a certain farm, until he shall have opportunity of recovering his better- ments, and nullifying several judgments rendered against him," passed 18th June, 1785 :7 and, " An act confirming Andrew Graham, of Put- hey, in the county of Windham, in the quiet and peaccable possession of the farm on which he now lives, in said Putney ; and rendering all judg- ments respecting the possession of the same, heretofore had and render- ed, by any court of law whatsoever, null and void ;" passed 18th June, 1785.1
Similar to annulling judgments, is the power exercised of staying exe- cutions after judgments rendered ; of which, in reviewing the acts of le- gislation, we find two instances : one entitled, " An act to stay the exe- cution on a judgment given by the superior court, against Witherly Wit- tum, Malachi Wittum, and Witherly Wittum, Jun. in favor of David Caswell and Thomas White," passed 25th February, 1782 :§ the other passed Sth March, 1784, entitled, " An act to stay an execution, and grant a sum of money for the purpose of paying and satisfying the said execution."| [The title of this last act, it is to be observed, carries a greater shew than substance of equity in it: the State was obliged in honor, and by promise, to indemnify the defendants : the act, after judg- ment, constrained the creditor to take public securities at par, both for his damages, and a large bill of costs expended in the suit.]
Granting pardons by the Legislature, (except in cases of impeach- ment, and perhaps in those of treason and murder) is an evident intringe- ment upon the constitutional prerogative of the executive Council, and as such, ought not to escape your notice. Yet we find this power exer- cised by the Assembly on the 26th of October, 1784, in the way of res ?- lution (which was exceptionable for the mode, if on no other account) in the following words, viz : " Resolved, that Lemuel Roberts, and Noel Potter, be, and they are hereby pardoned (on account of their former merit and present submission) for their offence against the peace and dig- nity of the freemen of this State, in being concerned in, and leading on in a riot, for the rescuing one Carr, out of the hands of the Sheriff's deputy, some time in May last."
If the exercise of this power had been left in its constitutional channel, former merit and present submission, might perhaps, have been consid- ered as proper reasons for mitigating the fines, but not for complete par- dons, in crimes tending to the dissolution of government.
Although this Council conceives the check intended by the XIVth section of the Frame of Government, {{ if carried into execution, to be very inconvenient in practice, and expensive to the State; yet, while the Con- stitution absolutely requires bills of a public nature to be printed for the consideration of the people, before they are passed into laws, we cannot esteem the legislature excusable in omitting it ; and the notion of treating the general system of our statutes as temporary, we consider as an eva-
*See page 191 .- + See page 499 .- į See page 500.
§ See page 445. For Witherby, in the title of the act here referred to, tend Witherly. See page 499 -S See page 2 19.
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sion of an article in the Constitution, thought by the Convention to be of importance.
On the 28th of February, 1782, the Legislature passed a law, entitled, "An act empowering Colonel Samuel Robinson, to give a deed of the lands hereafter described, to the heirs of William Emms, deceased ; and vacating a certain deed of the premises obtained in a fraudulent manner, by John Blackledge Emms, from said Samuel Robinson."* This Coun- cil cannot here omit observing, in addition to the reasons already given against the Legislature's exercising judicial powers, and reversing judg- ments, that the practice of legislating for individuals, and for particular cases, is much too frequent. If a subject feels himself aggrieved, and thinks the law incompetent to give him redress, he immediately applies to the Assembly ; and too often, laws are suddenly passed upon such ap- plication, to relieve in particular cases, which introduce confusion into the general system, or are afterwards discovered to be wholly unnecessary. The act last mentioned (admitting the Legislature to be a proper court for determining whether a deed was fraudulently procured) was entirely needless ;- the supreme court, possessing the powers both of a court of law and equity, being able to give proper relief in this and all other ca- ses of fraud. When a person obtains a property, which the law of the land at the time of acquiring it, esteems a legal and equitable estate, if he is divested of it by a sovereign act of power, he has a right to complain of the injury; and all men of interest have a right, and it is their duty, to be alarmed at the precedent : if this was not the case, Colonel Robinson ought not to have applied to the Assembly, or they to have interfered.
That part of the act passed in the last session of the Legislature, for erecting the new county of Addison, which authorises the Governor and Council to appoint county officers therein, for the time being, is esteemed by this Board to be an unnecessary violation of the XXVIIth section of the Frame of Government. We are unable to imagine the particular cir cumstances of this part of the commonwealth to have been such, as to require adopting so extraordinary a measure, for any other purpose than to give a lead at some future county election.
In our enquiries whether " the public taxes have been justly laid and collected in all parts of this commonwealth ;" we must offer it as our opinion, that neither has been fully the case. With regard to the equal collection of them, so many occurrences have intervened, known to the freemen at large, that the executive part of government does not appear greatly deserving of censure for their remissness in this respect; but in apportioning the taxes, this Council does not believe full justice has been done : all our towns are new, and a part of the most populous ones still uncultivated ;- tradesmen of all kinds, and men of genius, are every where much wanted :- it must not certainly be therefore, as " good guar- dians of the people," that faculties are rated, and unimproved real property, and articles of luxury, left without assessment. In the opin- ion of this Council, visible property, in proportion to its real value, is the only fit subject of taxation (except the Legislature shall find it expedient
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