The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1853-04-06

This case having been very deliberately and
satisfactorily argued, both for and against the
discharge prayed for, and as n speedy deter
of the case seems desirable for the
prisoner, we have given the matter our best
attention, which the time would allow, and
the following is the opinion of the Court, by
REDriELD, G. ].
The leading question made in the case
is, how far that provision in the law. un-
der which the prisoner is committed. is
to be regarded as constitutional, This
constitutional, as applied to laws,
has a very narrow range. 1t is an in
quiry, merely, as to the conflict between
any act of the legislature. and the funda-
law of the state, which is suppos-
ed to be embodied in the express provis-
ions of our written state Constitution,
as limited. or enlarged, by that of the
United States.
1t is scarcely necessary, we trust, at
this late day, to say, that the judicial
tribunals of the State have no concern
with the policy Of legislation. That is a
matter, resting altogether within the dis
erection of another coordinate branch of
the government. The judicial power
cannot legitimately question the policy,
or refuse to sanction the provisions, of
any law, not inconsistent with the fun.
damental law of the State. And they
would never attempt to do this. even,
except upon obvious and satisfactory
grounds.
The only ground upon which it has
been claimed, that the statute in q%estion
is unconstitutional, is that it conflicts
with the 10th and 18th articles Of the
Bill of Rights of our State Constitution
and with the 4th, 5th and 9th articles of
the Amendment of the United States
Constitution, embracing the same sub
;c t.
1t seems to us, that the llth article
of our State Constitution, and the cor
responding provisions in the United
States Constitution, have no reference
to the subject now before the Court. 1t
is in these words "That the people
lave a right to hold themselves, their
houses, papers and possessions, free from
search, or seizure, and therefore warrants
without oath. or affirmation, first made,
affording sufficient foundation for them,
whereby any officer, or messenger, may
be commanded, or required, to search
suspected places, or seize any person, or
persons, his, her or their property, not
particularly described, are contrary to
that right, and ought not to be granted"
This seems to be directed against gen.
eral warrants, and general search war.
rants in particular, not specifically de-
scribing the persons, places, or property,
to be searched. or arrested. This class
of warrants, which in troubulous and
unsettled periods in English history,
were issued to a very alarming extent,
by their Secretaries of State, and other
magistrates perhaps, was prohibited, at
the final settlement of the realm upon
the Prince of Orange, and the Hanover
family, l think, if not earlier and sim
liar provisions have been transferred to
the United States, and to most of the
State Constitutions. 1t is very obvious
this preceding is not of that character.
And it has never been supposed to pro-
hibit arrests by private persons, or with
out warrant. in that class of cases, where
delay would be perilous. Necessity is
the first law of government as we'll as of
nature, and is not to be abrogated, by
Implication.
In order to determine how far this
proceeding is in violation of the 10th
article of the State Constitution, it will
be useful to compare the two somewhat
carefully. perhaps. The article is IN
these words -" That in all prosecutions
for criminal offences, n person hath the
right to be heard, by himself and his
counsel to demand the cause and ma
ture of his accusation to be confront
ed with the witnesses to call for evil
dence in his favor, and a speedy, public
trial, By an impartial jury Of The coun-
try, without the unanimous consent of
which jury he cannot be found guilty
nor can he be compelled to give evidence
against himself nor can any person be
justly deprived of his liberty, except by
the laws of the land, and the judg ment
of his peers"
1t is obvious to remark, upon the
slightest view of this article, that if the
prosecution under consideration is of
the character indicated in this article,
the proceedings cannot be maintained.
The proceedings indicated in the 22d
section of the statute under considera-
ton. possesses almost zone of the requi-
sites indicated in this 10th article of
our Constitution. But we think the
proceedings under this statute are not
to be regarded altogether as a prosecu-
ton for a criminal ofTence-perhaps not
to any extent. The prosecution refer
red to in this article in the Constitution
is obviously the final trial, before the
traverse jury, in open court, and would
seem to have reference altogether to
those Courts whose proceedings are ac-
cording to the course of the common
law, aud especially to o6cnccS, properly
so speaking" Criminal offences" in
the words of the article such as are
made punishable by Imprisonment, or
some other personal disability, or at all
events by fine, And it is questionable,
! think, whether this article was ever
intended to have reference to that class
of minor offences, which from time i'm
memorial, both lii this country and in
England, have been made punishable by
single magistrates, without any Of the
appliances, or apparatus, which seem to
be indicated in this article. But how
ever that may be, it seems to us that the
proceeding indicated in the statute un,
der consideration is not even one of
those minor offences punishable by fine