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consideration. In so doing, we principally had in view rendering government less expensive, and more wise and energetic; objects, in the opinion of this Council, more especially during the infancy of a commonwealth, worthy the attention of its freemen. The taxes which have been collected some years past for the support of government, demonstrate the expediency of the former; and every man's observation will suggest to him the necessity, for our political happiness and credit, of having government properly maintained, and the judicial and executive offices therein, filled by persons of the greatest wisdom and virtue.
In the proposed alterations, we endeavored to guard, in future, against what is esteemed by this Council (our circumstances considered) to have been an error in the Constitution-electing persons to judicial and executive trusts, during good behavior: as it invested them with estates in their offices, which, without an alteration of the Frame of Government, cannot be legally taken from them, but by proving, in a judicial course of proceeding, instances of mal-administration. We therefore left it in the power of the Governor, Council, and Assembly, (whom we view in the present condition of the State, to be most competent to the election of judicial, and the several executive officers, which, in the proposed alterations, they are authorised to choose) annually to leave out any one who shall be found unequal to, or otherwise improper for, his trust, and appoint a more suitable person in his place. But this Council is not without hope that the ensuing septenary will furnish men so adequate to those offices, that the tenure of them may, consistent with the public interest, be put upon a more stable footing.
We also endeavored, after the example of some other States, to guard against the future introduction of an aristocratic power, destructive of the common weal, by providing that the same person should not, at one time, be invested with too many important offices, especially where one would be a hindrance to his properly discharging the duties of the other. And likewise to prevent any family, or party, in future, having it in their power to establish a set of connexions, prejudicial to the community, by providing that certain officers, of the greatest influence and importance, should, at stated periods, be reduced to the common level; and by being thus constantly reminded of their political mortality, be induced to act well their parts while on the stage.
This Council proposed for your option two plans for electing Councillors and Representatives in Assembly, each differing from the mode now in use, but one of them necessarily consequent to the design of reducing the number if either meets with your approbation, we shall be happy; yet cannot but wish the choice of Representatives in a county convention may have a trial for one septenary.
In reviewing the proceedings of the legislative and executive branches of government, and examining whether they have performed their duty,
as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they were entitled to by the Constitution," it affords us great pleasure to find matters of commendation, yet accompanied with the mortification of having some to censure. But as the
Constitution has allotted us solely, the last, and more unpleasing task, we can only in general observe, that, under God, this commonwealth is much indebted, even for its present existence as a separate community, to that undaunted firmness, and prudent vigilance for the public safety, which has been usually maintained in the legislative and executive departments, since the era of our independence. At open war with the most potent nation in Europe;-frequently threatened with invasions from a sister State, and, by her insidious arts, a powerful disaffection fomented within the bowels of this commonwealth-denied relief from the authority who alone, under Heaven, could give it ;-we have reason to look up, with gratitude, to that Being who is wisdom, and by whom a few husbandmen, unexperienced in the arts of governing, have been enabled to pilot the ship through storms and quicksands, into the haven of independence and safety; and to admire when we consider how much was to be done, and by whom, that it has been so well done.
But we are obliged to check such agreeable thoughts, and however irksome to our feelings, turn our attention to the province allotted us; censuring such unconstitutional proceedings as may be drawn into precedent, if left unnoticed.
We would premise in the words of Judge Blackstone, that, "in all tyrannical governments, the right both of making and enforcing the laws, is vested in one and the same man, or one and the same body of men, and wherever these two powers are united together, there can be no public liberty." The convention who framed the Constitution of this State, aware of this, by a decided distribution of power, assigned the legislative authority to the Representatives of the people in General Assembly, and the suprenie executive, to the Governor and Council; and from the last, again severed the judicial, and rendered it independent of both. And to preserve this balance of power, thus carefully made, and guard against any encroachment of one on the proper authority of either of the other, the convention made it the duty of the Council of Censors to inquire, "whether the legislative and executive branches of government have assumed to themselves, or exercised, other or greater powers than they are entitled to by the Constitution."
In how many soever instances, therefore, the legislative and executive authorities have transgressed the limits marked out to them by the Constitution, and intruded upon the province allotted to the other, (whatever temporary reasons they might have for so doing) they are certainly, in those particulars, deserving of severe censure, as such conduct, from persons entrusted with the important charge of making and executing laws, (by trampling upon the fundamentals of government, which ought to be held sacred) naturally tends to introduce tyranny on the one hand, or anarchy on the other.
In some instances, however, it is probable that the Constitution has been invaded through necessity, in times of extreme danger, when good men were induced to hazard all consequences for the sake of preserving our existence as a people; yet in a review of these proceedings, we have thought proper to advert even to such breaches of the Constitution, lest
they should be made use of as precedents when no such necessity shall
Some instances of the Council's assuming power not delegated to them, we now proceed to select from their journal.
On the 17th June, and 20th October, 1778, they take the very extraordinary step of divorcing Laurania M'Clane, and Ruth Chamberlain, from their respective husbands, and declaring their right of marrying again.
On the 14th November, 1781, they resolve, that Doctor John Page, be remitted one fourth part of the debt due from him to Colonel William Marsh, on account of his debts being contracted in Continental money. It is to be observed that the debts of Colonel Marsh, by the confiscation of his estate, had, before that time, become the property of this com'monwealth; and that in April, 1781, the law fixing a general scale of depreciation for all debts contracted in continental money, had passed. Why then, Doctor Page should be made an exception to the general rule, or from whence the authority was derived, that, in this instance, altered or dispensed with the operation of the law, we are left in the dark.
In the several acts of the Legislature respecting the survey of town lincs, the Governor and Council are, in the opinion of this Board, invested with the sole power and trust of adjusting the accounts of the several persons employed in running those lines: yet we find that in March, 1784, the Council resolve, "That the Surveyor-General settle the accounts of the several Surveyors under his direction, for their services in running town lines, and draw orders therefor, or for the payment thereof, on the hard money tax."
This (however respectable the character of the Surveyor-General may be) appears to this Council to have been delegating a trust, committed to them solely to execute, and into very unsuitable hands, as it effectually destroyed the check intended by the Legislature upon the Surveyor's department. And in the view of this Council, it was a disposition of the public money not intended or authorised by the Legislature, as ample provision appears to have been made by law for compelling the proprietors and inhabitants of the several towns to defray the expense of those
On the 15th February, 1782, the Legislature enacted, "that all public acts, papers and records, that belong to the State, (excepting the particular records and papers of the Council) be deposited and remain in the hands of the Secretary of State." "That he attest and register charters of incorporation, grant copies of all records," &c.* On the 10th March, 1784, the Council resolve, "that the Secretary of Council keep in his office, all the records, and copies of charters of lands granted previous to October, 1781;" and that, "on account of the disputes respecting bounds of townships, which may occasion the alteration of some charters already given, he be directed not to record any more charters, till the further order of Council."
*See the act divorcing Laurania M'Clane, page 240-† See page 444.
How the Secretary of State, and Secretary of the Council, can both, at the same time, possess the records of charters granted previous to October, 1781; or from whence the Council derive their power to alter or contravene acts of the Legislature, when it is by the Constitution made a principal part of their duty to see them faithfully executed, is beyond our comprehension: nor do we readily conceive in what manner charters already completed, can, with propriety, suffer an alteration.
On the 9th March, 1784, the General Assembly, in order to facilitatė what had been so long and ardently wished for by them, and every good subject of this State, a final settlement of the public accounts, to enable the auditors to detect embezzlements, (if any) and the Legislature to provide for the payment of debts due from confiscated estates; made it the duty of the auditors to call on all persons who had acted in the capacity of commissioners of sequestration, &c. for such books, bonds, deeds, notes, and papers, as had come to their possession by virtue of their appointment; and the said books and papers to inspect, examine, and liquidate; and to record in proper books, the estates, real and personal, which had been confiscated; specifying which had been sold, by whom, and whose order, and the several amounts in real value. And if any person possessed of any such public papers, should neglect to deliver them to the auditors, after demand made by them in writing for that purpose, he was, by said act, to forfeit a sum, not exceeding twenty-five thousand pounds.
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. Subsequent to which, (we do not assert it was done with the view of embarrassing 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, 1784, 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 discharged 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 sheriff 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 John Wheeler and his associates, of a gore of land adjoining Lunenburgh; but difficulties having occurred in ascertaining 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 lieu of the former, but without a previous grant being made by the Assembly. This proceeding being so evident an infringement upon the power vested in the Assembly, and at
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 worthy public notice for any other reason than lest they be drawn into pre
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, standing 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 writing, 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 controversies respecting property, and in suits between man and man, the parties 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 Government," All courts shall be open, and justice shall be impartially administered, 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 justice 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 commonwealth, 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 398.