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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 alluded to, passed 220 October, 1779,*-8th November, 17801-5th March, 1784,5 and 29th October, 1784.5
The act passed by the Legislature on the 22d of October, 1779, “ appointing commissioners for the better regulating titles of land within this State, and declaring their power,”'|| (although this Council is not informed 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 charters, patents, deeds of conveyances, &c. and to examine the parties upon oath. And they were to make report to the Assembly, at their next session in October, which of the various claimants to the same land, ought, 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 commissioners, 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 obstruction, points to the pole. Here was an extensive grasp at the agreeable desideratum of uncontrolled dominion : trials by jury, in the most important disputes concerning property, wholly thrown aside : the Legislature 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 (wirich, 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 dissolution 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 conSee page 392.-- + See page 405.--- See page 493.-- See page 404. --|| See page 392. stituting the superior court a court of equity, and declaring their power ; and an act passed 22d February, 1781,- For quieting disputes concerning landed property;"'+ than that they appear to have originaied 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 exceeding four thousand pounds consequence, and the latter crects 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 ;1 October 21st, 1782 ;; and 25th February, 1783.
The act to suspend prosecutions against Joseph Farnsworth, Esq. I 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 character 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 rising 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 maxims, 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 remarked that this State has, in general, shewn an honest disposition in fulfilling its contracts with individuals, so far as has been in the power of government, by paying them something of real value. This the Legislature has been enabled to perform, by levying taxes in some degree proportionate to the public expenses, and enforcing the collection of them : and if the exigencies of the community have necessitated the contraction 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 470 See page 4914
has preserved our public credit with individuals ; and the trifling depreciation, which the public securities of this State have at times undergone, has proceeded rather from a scarcity of specie, and the example of surrounding 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 considerable time upon the public, before passing this act. A few more legislative 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 satissaction of having conscientiously discharged the trust reposed in us, if we omit noticing (however disagreeable it may be to many influential persons in this commonwealth) a law passed by the Legislature in their last session, under the title of, “ An act for settling disputes respecting landed property.”* This Council is of opinion, considering the various difficulties of coming to the knowledge of a good title to lands in this commonwealth, which originated from, and have been cherished by, the contentions of different states claiming this territory, it is equitable that provision 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 purchasor 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 possession, sorely against their will, and to their great impoverishment) the value of their improvements, is sanctisying 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 deviated from the humane spirit manifested in the XXVIth section of the Frame of Government: that by directing corporal punishment to be inficted for offences not infamous in their natures, that chastisement is rendered less disgraceful to the delinquent, and less beneficial to society, where the crimes require it.
* See page 500.
Nor ought the fickleness of the Legislature, and their want of deliberation 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 commission scarce know what is law, or how to regulate their conduct in the determination of causes. If the Legislature in this particular have intended to be faithful guardians of the people, they have acted as very unsteady 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 delegated, or intended to be delegated, to them, by the Constitution. This inode of proceeding is an assumption of the judicial power in the last resort, 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 supercedes the necessity of any other law than the pleasure of the Assembly, 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, unsettered by rules, shall think proper. If such is their constitutional authority, it would be a mercy 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 Constitution, 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 employment 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 6th March, 1784:* · 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 betterments, and nullifying several judgments rendered against him," passed 18th June, 1785 :t and, “ An act confirming Andrew Graham, of Putney, in the county of Windham, in the quiet and peaceable possession of the farm on which he now lives, in said Putney; and rendering all judgments respecting the possession of the same, heretofore had and rendered, by any court of law whatsoever, null and void ;" passed 18th June, 1785.
* The application of this censure to later periods in the history of Vermont legislation, is 100 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.
+ See page 438.
Similar to annulling judgments, is the power exercised of staying executions after judgments rendered; of which, in reviewing the acts of legislation, we find two instances : one entitled, “ An act to stay the execution on a judgment given by the superior court, against Witherly Wittum, 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 judgment, 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 impeachment, and perhaps in those of treason and murder) is an evident infringement upon the constitutional prerogative of the executive Council, and as such, ought not to escape your notice. Yet we find this power exercised by the Assembly on the 26th of October, 1784, in the way of resslution (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 dignity of the freemen of this State, in being concerned in, and leading on in a riot, for the rescuing one Carr, out of ihe 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 considered as proper reasons for mitigating the fines, but not for complete pardons, in crimes tending to the dissolution of government.
Although this Council conceives the check intended by the XIVTM section of the Frame of Government, s if carried into execution, to be very inconvenient in practice, and expensive to the State; yet, while the Constitution 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*Sre pace 191.-Sre page 499.- † See page 500
See page 415. For Il'itherby, in iht:itle of the art liere referred in, rrad Tiberiu, 1. See page 489,- Ste page 219.