Ward v. Barnard

The opinion of the Court was delivered by Skinner, Ch. J. Although the legislature have passed repeated acts similar to that on which the defendant, in this case, relies, and their authority has been as repeatedly questioned, yet, for many years past, no case has occurred, which this Court has been called upon to decide. The interest which seems to have been excited in the publick mind, the respect due to the opinion of many intelligent citizens, and the peculiar importance attached to every question, involving the constitutionality of an act of the legislature, are considerations which cannot but have influenced the Court to give to the subject the most careful and deliberate examination. The peace and welfare of the state essentially depends upon the respect attached to the laws enacted by the legislature, and security to the rights and privileges of the citizens, upon the prompt and effective aid afforded in their administration. Where [127] there has been the exercise of a power not delegated, or that is opposed to the constitution, the supreme law, the peace of the state, and' security to the rights of the citizens, forbid that aid ; and it cannot be given, without betraying the most sacred pub-lick trust. . It is contended by the defendant, that the act in question is warranted by the constitution of the state, and is not opposed to that of the United States. The plaintiff insists, that it is void, as opposed to both. Our attention has been more particularly confined to an examination of the question arising under the former; and the opinion we have formed, is made in reference thereto. That absolute despotick power, which it is said mast, in all governments, reside somewhere, and which is exercised by the British parliament, was, by the people, in the formation of our government, carefully retained. And it is a fundamental principle, engrafted into the constitution, that all power is originally inherent in the people ; and that all officers of government, whether legislative or executive, are their trustees and servants — therefore, such power, and such only, as is delegated to them, can they exercise. The people, by their constitution, have established, as one of the organs of this government, a supreme legislative power, vested in a house of representatives of the freemen of the commonwealth, or state of Vermont. They have also, by the constitution, established an executive, and a judicial power. In this instrument, the powers conferred upon each department, are particularly restricted, pointed out, and defined; and are declared to be separate and distinct. The house of representatives are, by the 9th section, styled the general assembly of the state of Vermont; and it is therein declared, “they shall have power to choose their speaker, secretary of state, their clerk, and other necessary officers of the house; sit on their own adjournments; prepare bills, and enact them into laws; judge of the elections and qualifications of their own members; they may expel members, but not for causes known to their constituents antecedent to their election ; they may administer oaths and affirmations, in matters depending before them ; redress grievances; impeach state criminals; grant charters of incorporation ; constitute towns, boroughs, cities, and counties: they may annuaily, on their first session after their election, in conjunction with the council (or oftener, if need be,) elect judges of the supreme and several county, and probate courts, sheriffs, and justices of the peace; and, also, with the council, may elect major genei-als and brigadier generals, from time to time, as often as thei-e shall be occasion; and they shall have all other powers necessary for the legislature of a free and sovereign state. But they shall have no power to add to, alter, abolish, or infringe any part of this constitution.” In no other part of the constitution, is there any'express or implied power given to the general assembly, but what is strictly [128] legislative; it is, therefore, in this section we are to seek for authonty, to pass the act upon which the defence here rests. The authority to “redress grievances,” if not limited to proper and appropriate acts of legislation, would be giving the general assembly authority as boundless, as the complaints of the citizens against each other, are countless. By the section referred to, the general assembly have all powers necessary for the legislature of a free and sovereign state. As no legislature, as such, has any other than the power of making laws; by this clause in the constitution, no other than a law making power is conferred. We are then to inquire, whether the act in question is a law. A prescribed rule of civil conduct, is the correct, and universally approved definition, of municipal law. So far as an act of the legislature is retrospective, or ex post facto, it is not a prescribed rule of conduct. An act conferring upon any one citizen, privileges to the prejudice of another, and which is not applicable to others, in like circumstances, in the language of the learned commentator upon the English law, does not enter into the idea of municipal law, having no relation to the community in general. Ward, the plaintiff in this case, having recovered a judgment, and taken execution against Barnard the defendant, to obtain satisfaction, elected his remedy, by taking the body of the debtor; who was admitted to the liberties of the prison, on the execution of the bond here in suit. By the standing law, the departure from the liberties, without having paid the debt, or being discharged by the creditor, or taking the oath prescribed for poor debtors, constitutes a forfeiture of the bond. It was the right of Ward, the creditor, in common with other citizens, as a means of obtaining satisfaction, to hold the body of the debtor in prison — the act, therefore, discharging the body, was conferring upon this person a privilege, not extended to other citizens in like circumstances; and taking from the creditor rights, enjoyed by other citizens, in like circumstances. In this view of the subject, this act cannot be distinguished, in principle, from an act, in which the body of any other citizen, not confined, shall be exempt from arrest; or an act, forbidding a particular citizen to use, for the obtaining satisfaction of his debts, the ordinary process against the body. Though it may not be feared, that injustice would follow the exercise of such power, and although justice may, in particular cases, have been promoted, sure it is, that those equal rights, so dear and sacred in the estimation of a free and enlightened people, are not secured by a constitution, yielding to the legislature the high prerogative of imposing restraints, and conferring favours not common to all. The constitution declares, that every citizen ought to find a certain remedy, by having recourse to the laws, &c. and that he ought to obtain right and justice, conformably to the laws. A certain remedy is provided by law, which a creditor may pursue, as the [129] means of obtaining satisfaction of his debt; this remedy the creditor has pursued in the case before us — and can it be said, that he-has obtained his right, conformably to the laws? or that his remedy was certain, when that has since been taken from him ?- The law had given to the creditor his election, to take either the property, or the body of his debtor; and whether there was estate, by which the execution might then have been satisfied, and that has-since been transferred, so that no effectual remedy remains, does not appear — and if it did, it would only-present a case of manifest injustice, and would have no effect upon the principle, upon which this case must be decided. A right was, by the standing law of the state, vested in the credit- or ; and no special act of the legislature, can take it from him. Charles Adams, attorney for the plaintiff. John C. Thompson, attorney for the defendant. Judgment — that the plea in bar is insufficient.