tract. The constitution only withdraws the ed by a sense of duty to his country, and to the power to impair, it does not deny all other cause of truth and the constitution. He hoped power, to make stronger and more binding, therefore that any thing which he had said &c., and there was no necessity to extend the would not wound the sensibilities of its author, prohibition further than the convention did; or of any one who may co-operate with him. for there was no danger of any other legisla- Each is entitled to his own opinion, and is retion in relation to contracts, than that which eponsible only to his conscience and his conis prohibited. stituents for its exèrcise; and it is the duty of all, so to act, as not only to deserve the approbation of the people, but to ensure the peace of sound conscience,

In the next page it is urged that the legislature may, by a re-organization of the courts, postpone consequentially the enforcement of contracts; and that therefore they can do it di- He would, he said, now, in a very few rectly. If the legislature make a convenient words, answer an argument he had heard in and reasonable change in the courts, for the conversation. It is not to be found in the purpose of improving them, the object being book. It is too fallacious even for a place legitimate, the act is constitutional, because it there. It is this: If a man make a contract in is expressly authorized by the constitution. Virginia under a three months' replevin law, But a total occlusion of the courts, or postpone- and afterwards come to Kentucky where the ment of their sessions, for the purpose of delay, replevin, is two years, would he not have would be an abuse of power-a perversion of it right to replevy two years, and would that imto an end interdicted by the constitution-and pair the obligation of the contract? He would would therefore be unconstitutional. A per- certainly have a right to replevy two years, and version of, delegated power to a purpose for that would as certainly not impair the obligawhich it was not only not intended, but which tion. And the reason is obvious; the legisla is expressly prohibited, is as unconstitutional ture of Kentucky can only legislate over the and void as if the act were done without au- citizens and soil of the state; and, in doing so, thority. If the legislature cannot directly do not invade the rights of others; and when postpone the remedy, or suspend it so far as a citizen of Virginia comes to Kentucky, he previous contracts are affected, they cannot do must submit to the laws of Kentucky. In the it indirectly. Congress have power to declare case put, the contract is not impaired by the war-death may be one of its consequences law of Kentucky. If it be impaired at all, it yet Congress would not have the power to or is by the obligor, in withdrawing himself from der the death of the people by a direct law for the operation of the laws of Virginia. The that purpose. So the legislature have the lex loci governs the construction of the conpower to regulate the courts; delay may be one tract--the lex fori its enforcement. The legis of the consequences of exercising this power: ture of Kentucky can only legislate over conbut the legislature have not therefore the right tracts made in Kentucky, and they cannot imto legislate for the purpose of delay, or to pro- pair the obligation of those contracts. They duce it directly. It would be very absurd to cannot legislate over contracts made in Virsuppose that because an accidental inconven- ginia, and therefore do not, by any legislation, ience may result from the honest exrecise of a impair their obligation. general power, therefore it would be lawful to He had endeavored, he said, to sustain the effect the same consequence directly. A has decision of the court, by such arguments as the right to clear his own land; if, in the hon- had occurred to him; and he had taken the libest and faithful exercise of this right, a tree erty of fortifying those arguments, by the printaccidentally fall on B and kill him, A is inno-ed preamble to the resolutions, which he cent. But if the tree had been wantonly felled for the purpose of killing B, A would have been guilty of murder. In the one case he would be innocent, because the killing of B was an accidental consequence of A's exercising his right to fell his timber; in the other case he would be guilty, because he perverted his general right to cut down trees to an illegal purpose. These familiar cases are sufficient to illustrate the argument. It will not endure scrutiny.

thought he had done. He had perhaps manifested too much zeal. If he had, he hoped to be excused; it was an honest zeal in the cause of the constitution, and of the best interests of the people and their posterity. If the resolutions be adopted, a precedent will be established which will unhinge the constitution, and render the legislature supreme and above the constitution by which they are created.

The country may be thrown into commotion, and the public mind into great effervescence, The remainder of the book under review con- but no relief will be administered. It had sisted principally of references to the decision been stated that the principles which he advoof the Court of Appeals. He would not again cated are not republican. This had no ternotice these, he said, because he had before rors for him. He cared not for party names or done it. He would therefore leave the book, denunciations. His only aim and wish was after what he had said of it, to its fate. He to do right, and it would be very difficult to had examined it freely, but he thought candid- determine what some men meant by republily and fairly. It was now public property-canism. If the constitution is republican-if the state had paid for it and every citizen justice is republican, the principles which he had a right to think and speak without reserve had endeavored to defend are republican. If of its demerits as well as merits. He had done to pin one's faith on another man's sleeve; if to so; and felt sure that he had been only prompt- lact with the majority, right or wrong, Vicar of

Preserve the constituiion and the honor of Kentucky. This can only be done by rejecting the resolutions. Let me once more, said he, beseech you to appeal to your judgments, and let them control your votes. Refrain from an aet at which your posterity may blush; transmit to them, as your best legacy, your constitution unimpaired, and consecrated by your veneration; this will ensure its longevity and their happiness.

Bray like; if to sacrifice conscience and judg- Violability consisted not only the sovereignty ment at the shrine of popularity; if to flatter of the people, but their peace; security, and the people and incite them and array them in happiness. Let them alone, they will do right. to parties, to mount to power and influence, Do not entangle them in an unnatural and unwhilst their real interests are disregarded; if profitable contest among themselves; do not to play the mock patriot and proscribe freedom force them to deny the authority of their conof opinion, of conscience and of speech; if stitution, and perhaps the power of the general these constitute a republican, he disavowed re-govemment. publicanism emphatically and indignantly. But if to pursue the unbiased dictates of conscience and judgment-if to think for one's self in defiance of the opinions of others--if to love the constitution and respect the people— if to do right, however unpopular, and abjure error, however popular-if to express opinion candidly, independently, and fearlessly-if to revere one's country, and feel solicitude for its permanent happiness and honor--if to love equality and despise demagogueism; if these Every other state in the Union is now tranare badges of an orthodox republican, he would, quit and prosperous. Why is it that Kenwithout egotism, claim the honor of being an fucky, the Delta of America, should be disundeviating republican, in the most sterling traeted and harassed! It is her legislation, her import of the appellation.. His republicanisin party and petty strifes and struggles. Bury was not in professions, but in practice--not in them all--Surrender them at the altar of your words, but in deeds. It recognized the sox-country's good. Return to a stable and constiereignty of the people, but required their supremacy to be displayed conformably to their political compact. He believed that in its in

tutional policy, and Kentucky will be regenerated, and her people once more rallied under the standard of Justice and the Constitution.

On the 20th December, 1824, another long and fulminating preamble and resolutions for the removal of the Appellate Judges by address were adopted by the House of Representatives by the following vote:

Yeas-Mr. Speaker, Messrs. Booker, H. O. Brown, Buckner, Buford, Caldwell, Carter, Chenowith, Clarkson, Coleman. Cosby, Dallam, A. H. Davis, S. Daviess, Forrest, Fulton, Galloway, Garth, J. G. Hardin, M. Hardin, Hodge, Holt, Hunter, Joyes. Litton, Marksberry, Mason, Maupin, Mayo, M'Brayer, J. M'Connell, Middleton. Morehead, Morgan, Mosely, Mullens, Napier, J. Patterson. Porter, Prince, Riddle, W. Robertson, Rodman, Roundtree, Rowan, Samuel, Shortridge, Slack. Spalding, Stephens, Stone, Summers, J. Tayior. Thomas, Triplett, Wade, Watkins, Wilcoxen, W. C. Williams, W. Wilson and Wingate-61,

Nays-Messrs. Bates, Breck, Brents, G. I. Brown, Chapeze, Cox, Crit-. tenden, Cunningham, Evans, Farmer, Ford, Gibson, Goggin. Gordon, Green, Gresham, B. Hardin, Kennedy, J. M. M'Connell, Miller, Morris, New, Oldham, W. Patterson, H. C. Payne, W. C. Payne, G. Robertson, Shepherd, Simpson, Sterrett, R. Taylor, Thruston, True, Turner, Wickliffe, L. Williams, Willis, T. P. Wilson and Woods-39.

Two-thirds, as required by the constitution, not concurring, the Judges were not removed. But the Senate, anticipating that result, had, on the 9th day of December, 1824, passed a bill to abolish the Court of Appeals, and organize a new court, under pretence of "reorganizing" the court.The Senate's vote on that bill was as follows:

Those who voted in the affirmative, are, Messrs. C. H. Allen, J. Allen, Ballinger, Barrett, Beauchamp, Daniel, Dawson, Denny, Dudley, Ewing, Forsythe, Hughes, Lyon, Maccoun, Mayo, P, N. O'Bannon, W. B. O'Bannon, Selby, Smith, T. Ward, Worthington and Yancey.

Those who voted in the negative, are, Messrs. C. Allen, Beaty, Bowman, Carneal, Crutcher, Davidson, Faulkner, Flournoy, Hickman, Howard, Lockett, Muldrow, Stephens, J. Ward, White and Wickliffe.

1

And the House concurred in that bill on the 23d of the same month, at Midnight, in great tumult, by the following vote:

Yeas--Mr. Speaker, Messrs. Booker, H. O. Brown, Buckner, Buford, Caldwell, Carter, Chenowith, Clarkson, Coleman, Dallam, A. H. Davis, S. Daviess, Forrest, Fulton, Garth, J. G. Hardin, Hodge, Holt, Hunter, Joyes, Litton, Marksberry, Mason, Maupin, Mayo, M'Brayer, M'Connell, Middleton, Morehead, Mosely, Mullens, Napier, Porter, Prince, Riddle, W. Robertson, Rodman, Roundtree, Rowan, Samuel, Shortridge, Slack, Spalding, Stephens, Stone, Summers, J. Taylor, Thomas, Wade, Wilcoxen, W. C. Williams, W. Wilson and Wingate-54.

Nays-Messrs. Bates, Breck, Brents, G. I. Brown, Chapeze, Cosby, Cox, Crittenden, Cunningham, Evans, Farmer, Ford, Gibson, Goggin, Gordon, Green, Gresham, B. Hardin, M. Hardin, Kennedy, J. M. M'Connell, Miller, Morris, New, Oldham, J. Patterson, W. Patterson, H. C. Payne, W. C. Payne, G. Robertson, Shepherd, Simpson, Sterett, R. Taylor, Thruston, Triplett, True, Turner, Watkins, Wickliffe, L. Williams, Willis, T. P. Wilson and Woods-43.

The arguments against the bill were elaborate and exceedingly able. And, in that debate, Mr. Robertson delivered the subjoined speech.

SPEECH OF MR. ROBERTSON

On the Bill to Re-Organize the Court of Appeals.

[Delivered in the House of Representatives of Kentucky, Dec. 23d, 1824.]

Mr. Robertson said, he did not expect to be triumph of reason and justice over passion and able to add many rays to that flood of light violence. I shall have confidence in the intelwhich had already been poured on this mo- ligence and virtue of the people. They are the mentous subject, by his friends who had pre- safest depository of our rights. They may be ceded him in the argument. That light had deceived for a while by the ambitious and denot been extinguished; It is inextinguishable; signing, but after sufficient deliberation, the it is the light of reason, and of truth. The delusion will vanish, their fervor will subside unconstitutionality of the bill under consider into the calm of that right reason which they ation had been portrayed in the brightness of possess, and which seldom, if ever, errs. Besunshine; yet, when he saw the constitution of fore that august tribunal this question must his country about to be violated-when he saw come; and it requires not the spirit of prophecy the main pillar in the temple trembling, and to predict what will be their verdict; they will tottering to its fall-when he saw the altar of pronounce their judgment irreversibly, and in justice about to be profaned, silence would be tones of thunder, unless I am a total stranger treason to his own conscience, and to the most to their character. They will understand this sacred principles of free government. He bill; they will consider it as the desperate exshould speak plainly, and with that freedom pedient of party and individual aggrandizewhich the magnitude of the subject required, ment. They do not feel the influence of any and which would become a freeman, the Mag- of the little, personal or sordid motives which na Charta of whose liberty is endangered. may sometimes animate the aspiring. They And he only asked that attention to his argu-have no petty ambition to gratify. They do ment, which the duty of every member to his oath and his constitution, requires him to give to all that can be said; and if he should fail to convince, or even bring to doubt a solitary mind, he should at least stay for a few moments the blow that is aimed at the constitu

tion.

I had thought, said Mr. Robertson, that the thick darkness which had overhung the political horizon, was beginning to retire before the light of truth, and that I could see the dawning of a brighter and happier day for Kentucky. But never did she see so dark and portentous a day as this: this is her most eventful crisis. She is about to determine, not whether she will put down her judges, but that constitution, which is now under trial. In all the ragings of the political storm, although the flood of party had threatened to deluge much of the social and moral region, and leave scarce any monument behind its desolating career, yet I had hoped there was one consecrated spot on which the political ark might rest in safety; that spot is the sanctuary of justice. But even that is about to be overwhelmed; and whenever it shall be, the patriot may despair of the commonwealth. But I will not, said he, yet despond; the restorative is with the people; they will correct our aberrations, and prove that they are determined to defend their Constitution, even against the attacks of those who assail it in the abused name of liberty.

Whatever may be the decision of this house on this bill, I shall not despair of the ultimate

not envy their judges, nor covet their offices. All they desire is good, equal laws, steadily, wisely, and honestly administered. They are a magnanimous people, an intelligent people; and although some of them may be somewhat depraved, by the demoralization of unjust legislation, and the relaxation of some of the most consecrated ties, social and political, they are yet a virtuous and a just people. They despise whatever is stained with dishonor-they are the same people who assisted in achieving the civic victory in '98; when some of those who are now in the van of the multitude, crusading against the judiciary, were in the enemy's ranks-they are the same people who de nounced the alien and sedition acts; whilst some of those who now swell the chorus against the judges advocated them they are the same people who poured out some of their richest blood at Raisin, and conquered at Orleans; whilst many who are now patent democrats, were railing at their firesides against the justice of the war. Such a people will never sanction legislative stealth. They will tell you, sir, that if the judges deserve to be removed from office, they (the people) have prescribed to you the only modes in which they intend that you shall act; that to attempt to effect the end in any other mode, is treachery to them, and worse than treachery to ourselves. They will tell us, that if the judges must be removed, it should be done openly, fairly and directly, not insidiously, indirectly or sneakingly; that it must be done in such a manner as will be com

patible with the character of a brave, frank, forget the instability of human power, the vicisand lofty people; in short, as Kentuckians situdes of capricious fortune; let them not forshould do it. If we cannot break the judges, get that the greatest men, the Caesars of their we are not to break the constitution. They did day, have fallen; and that the proudest emnot send us here to take offices from one set of pires, and most splendid republics, even men, only to give them to another, nor to strug- Athens, Carthage and Rome, have tumbled gle for victory over each other, but to endeavor into ruins at her magic touch; above all, let to harmonize in trying and settling a great not a few forget, that Marius in exile sat on the principle, whether the judiciary is a co-ordi- ruins of Carthage; and when these things are nate branch of the government. They expect recollected, let us be humble in our hopes, us to try the judges by the constitution, and and temperate in our acts. In passing this either acquit them or condemn them, accord-bill, gentlemen may triumph over the judges; ing to its principles. but it will be a poor triumph; it will be a triThere will be no peace until this question is umph over virtue over the most consecrated settled fairly. You will only multiply difficul- principles-over the constitution. It will be ties, and increase the inflammation of the pub- the triumph of force over weakness-a trilic mind, by passing this bill. It settles no umph over the people-over ourselves and our principle. It establishes nothing, except that children; a triumph over the feelings and the judges cannot be constitutionally removed, rights of old men, grown grey in the honest and that therefore they shall be forcibly re- service of their country-and over the feelings moved, to give place to some hungry expect of their anxious wives and children. Nero anis, who are unable to live without some nour- had such a triumph; he wantoned on the harp ishment from the treasury paps-the spring of on the housetops, when by his own incendiary whose patriotism is money-the object of hand Rome was wrapped in flames. The whose outery against the judges is to get their cries of the murdered Christians were music places. If Kentucky is prepared to sanction to his ears. Let us never enjoy such a trisuch a prostitution of her constitution, her pub- umph as this such a victory would be our lic virtue is gone, and she is ready to receive worst defeat. Let us pause before we cross the the yoke of some modern Pisistrates, Cæsar or Rubicon. Let us appeal solemnly to our conCromwell. Whenever she shall be so far lost sciences, before we thus sacrilegiously invade to a sense of justice and honor, she is prepared the temple of our liberties-before we profane to surrender her altars and her gods, and is its altar of justice. We have Sampson's practically just as free as the Romans under strength: we can shake-we can even pull Augustus, Tiberius or Caligula. down the Doric pillar of the political edifice; but let us be careful, lest we are crushed in its ruins.

If we reject this bill, we shall once more meet together as brothers, united in behalf of the great interests of our state, our civil and Mr. Robertson said, that in the argument criminal code, internal improvement, and the which he should submit to the house, he should diffusion of knowledge by education. But if endeavor to maintain two propositions-1st. we pass it, we shall raise a storm that we may That if it is intended by this bill to legislate not be able to withstand; like a tornado, it may the judges from office, the end is unconstitutear up every thing by the roots. You may tional; and 2nd, that it is unjust and impolitic. force your judges from the bench by violence, But before he proceeded with the argument, because they are faithful to the constitution, he would answer some preliminary objections and will not submit to be voluntary victims of to the judges, which had been urged against its violation; but, sir, their cause will not, as them, and which, although they could not be that of the great Dewitt, go down with them; made to apply justly to the main object, he it is the cause of justice and truth-their coun- deemed it proper to notice and get rid of. It try's cause-and will prevail; and it is consola- had been urged as an objection to the judges, tory to know, that in more sober times, justice that they had not manifested sufficient respect will be done. However much they may be slan- to public sentiment, by holding their offices, dered, or persecuted, they may well say to when they could not doubt that a majority of each other as Latimer did to Ridley, when they the people had expressed dissatisfaction with were burning at the stake for the firmness of their decision in the case of Blair vs. Wiltheir religious faith; "Be of good courage, liams. He said, that he would deny that Ridley, our persecutors will be disappointed, there was any satisfactory evidence that a mafor our sufferings will lead men to inquire into jority of the people were or are dissatisfied that cause for which we suffer; and the fire with that decision. Great exertions had been which consumes us will light up such a flame made to excite the prejudices of the people as I trust in God will never be extinguished." against the judges; and nothing which ingeTo the bar of enlightened public opinion they nuity could contrive, and falsehood utter, will appeal, and not in vain. At the same was omitted to be published against the court; bar, the actors in this drama must sooner or motives and doctrines had been imputed to later be tried. But we shall have to appear them, which those who were most active in before still higher tribunals-the bar of conscience, and the bar of heaven-where equal and exact justice will be done to the motives and conduct of all.

their propagation knew were false; and a very dexterous and unjust use was made of epithets to rouse popular indignation, and to misdirect the honest zeal of unsuspecting and patriLet not those who are called judge breakers otic men. Those who defended the consti