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SKETCH OF THE COURT OF APPEALS.

From Collins' History of Kentucky, to which it was contributed by Mr. Robertson.

But to secure a permanent tribunal for adjudication on the constitutionality of legislative acts, the existing constitution of Kentucky, like its predecessor in this respect, ordained and established "A Supreme Court," and vested it with ultimate jurisdiction. Section one and two of the 4th article reads as follows:

monwealth, both as to matters of law and "SEC. 1. The judicial power of this comwhich shall be styled the Court of Appeals, equity, shall be vested in one Supreme Court, and in such inferior courts as the General Assembly may, from time to time, erect and

THE Constitution of Kentucky-like that of The first constitution of Kentucky, which the United States, and those, also of all the commenced its operation on the 1st of June, States of the Anglo-American Union-dis- 1792, also prohibited the legislature from retributes, among three departments of organic ducing a judge's salary during his continuance sovereignty, all the political powers which it in office. But the present constitution, adoptrecognizes and establishes. And to effectuate, ed in 1799, contains no such prohibition. It in practice, the theoretic equilibrium and se- is not difficult to perceive which of these curity contemplated by this fundamental par- constitutions is most consistent with the avowed tition of civil authority, it not only declares theory of both as to judicial independence; that the legislature shall exercise no other pow-for, certainly, there can be no sufficient assuer than that which is legislative-the Judiciary rance of judicial independence, when the salano other than that which is judicial-nor the ry of every judge depends on the will of a Executive any other than such as shall be exec- legislative majority of the law-making deutive in its nature; but it also, to a conservative partment. extent, secures the relative independence of each of these depositories of power. If courts were permitted to legislate, or the legislature were suffered not only to prescribe the rule of right but to decide on the constitutional validity of its own acts, or adjudicate on private rights, no citizen could enjoy political security against the ignorance, the passions or the tyranny of a dominant party: And if judges were dependent for their offices on the will of a mere legislative majority, their timidity and subservience might often add judicial sanction to unconstitutional enactments, and thereby, instead of guarding the constitution as honest and fearless sentinels, they would help the popular majority to become supreme, and to rule capriciously, in defiance of all the funda"SEC. 2. The Court of Appeals, except in mental prohibitions and guaranties of the cases otherwise provided for in this constitupeople's organic law. As the legislature de-tution, shall have appellate jurisdiction only, rives its being and authority from the consti- which shall be co-extensive with the state, under tution, which is necessarily supreme and in-such restrictions and regulations, not repugviolable, no legislative act prohibited by any nant to this constitution, as may, from time to of its provisions, can be law; and, consequent-time, be prescribed by law." ly, as it is the province of the Judiciary to de- As long as these fundamental provisions clare and administer the law in every case, it shall continue to be authoritative, there must must be the duty, as well as privilege, of every be in Kentucky a judicial tribunal with appelcourt to disregard every legislative violation of late jurisdiction "co-extensive with the State," the constitution, as a nullity, and thus maintain and co-ordinate with the legislative and execthe practical supremacy and inviolabilty of the utive departments. And this tribunal being fundamental law. But the will to do so, established by the constitution, the legislature whenever proper, is as necessary as the power; can neither abolish it nor divest it of appellate and, therefore, the constitution of Kentucky jurisdiction. The theoretic co-ordinacy of provides that the judges of the Court of Ap- the organic representatives of the three funcpeals, and also of inferior courts, shall be en- tions of all political sovereignty, requires that titled to hold their offices during good be-the judicial organ, of the last resort, shall be havior; and, moreover, provides that no judge as permanent and inviolable as the constitushall be subject to removal otherwise than by tion itself. The great end of the constitution impeachment, on the trial of which there can of Kentucky, and of every good constitution. be no conviction without the concurrence of is to prescribe salutary limits to the inherent two-thirds of the Senate-or by the address power of numerical majorities. Were the poof both branches of the legislature, two-thirds litical omnipotence of every such majority of each branch concurring therein.

establish.

either reasonable or safe, no constitutional

limitations on legislative will would be neces- sent to take, at its nominal value, local bank sary or proper. But the whole tenor of the Ken- paper greatly depreciated. The object of the tucky constitution implies that liberty, justice legislature, in establishing such a bank, and and security, (the ends of all just government,) in enacting such co-operative statutes as those require many such fundamental restrictions: just alluded to, was to enable debtors to pay And not only to prescribe such as were their debts in much less than their value, by deemed proper, but more especially to secure virtually compelling creditors to accept much their efficacy, was the ultimate object of the less, or incur hazards of indefinite and vexapeople in adopting a constitution: And, to as- tious delays. sure the integrity and practical supremacy of these restrictions, they determined that, as long as their constitution should last, there should be a tribunal, the judges of which should be entitled to hold their offices as long as the tribunal itself should exist and they should behave well and continue competent, in the judgment of as many as one-third of each branch of the legislature on an address, or of one-third of the Senate on an impeachment: And, to prevent evasion, they have provided that, whilst an incumbent judge of the Appellate Court may be removed from his office by a concurrent vote of two-thirds, neither the appellate tribunal, nor the office itself, shall be subject to legislative abolition.

The constitutionality of the Bank of the Commonwealth, though generally doubted, was sustained by many judicial recognitions by the Court of Appeals of Kentucky, and finally by an express decision in which the then judges (Robertson, Chief-Justice, and Underwood and Nicholas, Judges) without expressing their own opinions, deferred to those incidental recognitions by their predecessors, and also to the opinion of the Supreme Court of the United States, in the case of Craig vs. Missouri, in which that court defined a "bill of credit," prohibited by the national constitution, to be a bill issued, as currency, by a State and on the credit of the State. The notes of the Bank of the Commonwealth, though issued by and in There is a radical difference in the stability the name of the State of Kentucky, were not of the supreme and inferior courts. The first issued on the credit of the State, but expressly is constitutional-the last are only statutory. on the exclusive credit of a nominal capital As the constitution itself establishes the Court dedicated by the charter-and this known fact of Appeals, this tribunal can be abolished by produced the rapid depreciation of those notes; a change of the constitution alone. It would and, consequently, the same Supreme Court be certainly incompatible with the genius of of the United States, affirmed the said decision the constitution to abolish the circuit courts, of the Appellate Court of Kentucky, as it was merely to get clear of the incumbent judges: compelled to do by its own authority, in Craig Yet, as the power to abolish exists, the motive vs. Missouri, unless it had overruled so much of the abolition cannot judicially affect the of that decision as declared that it was an invalidity of the act. And, as the organization dispensable characteristic of a prohibited "bill of inferior courts is deferred, by the constitution, to legislative experience and discretion; and as, moreover, a new system of such courts may often be usefully substituted for one found to be ineligible, the legislature ought not to be restrained from certain amelioration, by a fear of shaking the stability of the judiciary. The constitutional inviolability of the Court of Appeals, which may rectify the errors of the inferior tribunals, may sufficiently assure judicial independence and rectitude.

of credit," that it should be issued on the credit of the State. There is much reason for doubting the correctness of these decisions by the national judiciary—and, if they be maintained, there is good cause for apprehending that the beneficent policy of the interdiction of State bills of credit may be entirely frustrated, and the constitutional prohibition altogether paralyzed or eluded.

When the validity of the statutes retrospectively extending replevins was brought before The fundamental immutability of the Court the Court of Appeals, the three judges then of Appeals, and the value of the durable ten- constituting that court, (Messrs. Boyle, chief ure by which the judges hold their offices, have justice, and Owsley and Mills, judges,) debeen impressively illustrated in the history and livered separate opinions, all concurring in the results of "the relief system," and resulting conclusion that those statutes, so far as they "old and new court," which agitated Kentucky retro-acted on contracts depending for their efalmost to convulsion for several years-the fect on the law of Kentucky, were inconsistent most pregnant and memorable in the annals of the State. That system of legislative "relief," as it was miscalled, was initiated in 1817-18, by retrospective prolongations of replevins of judgments and decrees--and it was matured, in 1820, by the establishment of the Bank of the Commonwealth, without either capital or the guaranty of state credit, and by subsidiary enactments extending replevins to two years in all cases in which the creditor should fail to endorse on his execution his con

with that clause in the federal constitution, which prohibits the legislatures of the several states in the union from passing any act "impairing the obligation of contracts," and also, of course, with the similar provision in the constitution of Kentucky, inhibiting any such enactment by the legislature of this State. A more grave and eventful question could not have been presented to the court of umpirage. It subjected to a severe, but decisive ordeal, the personal integrity, firmness and intelligence

of the judges, and the value of that degree of tension of replevin in Kentucky, was unconjudicial independence and stability contempla-stitutional and void.

ted by the constitution. The question involved Unanswerable and conclusive as this mere was new and vexed; and a majority of the skeleton of the court's argument may be, yet people of the State had approved, and were, the decision cxcited a great outcry against the as they seemed to think, vitally interested in judges. Their authority to disregard a legis maintaining their constitutional power to enact lative act as unconstitutional was, by many, such remedial statutes. denied, and they were denounced as "usurpers Under this accumulated burthen of responsi--tyrants-kings." At the succeeding session bility, however, the court, being of the opinion of the legislature, in the fall of 1823, a long, that the acts impaired the obligation of con- verbose, and empty preamble and resolutions, tracts made in Kentucky antedecedently to for addressing them out of office, were repor their date, honestly and firmly so decided, ted by John Rowan, to which the judges rewithout hesitation or dissent. The court ar- sponded fully and most effectually. But after gued, 1st. That every valid contract had two an able and boisterons debate, the preamble kinds of obligation-the one moral, the other and resolutions were adopted by a majority of legal or civil; that the fundamental interdicts less than two-thirds. The judges-deterapplied to the legal obligation only, because, mined to stand or fall by the constitution-reas moral obligations are as immutable as the fused to abdicate. At the next session of the laws of God, and depend on the consciences legislature, in 1824, there then being a still of men, and therefore cannot be impaired by larger majority against the judges and their human legislation or power, consequently, it decision-but not quite two-thirds-the domiwould be ridiculously absurd to suppose that nant party, now become furious and reckless, the constitution intended to interdict that passed an act, mis-entitled "an act to reorganize which, without any interdiction, could not be the Court of Appeals;" the object and effect done. 2nd. That as moral obligation results of which, if sustained, were to abolish the "old" from the sanctions of natural law, so civil ob- constitutional "court," and substitute a “new” ligation arises from the sanctions of human law; legislative "court." that, wherever the laws of society will not up- The "new court" (consisting of William T. hold nor enforce a contract, that contract pos- Barry, chief-justice, and James Haggin, John sesses no civil obligation, which, whether moral Trimble, and Rezin H. Davidge, judges,) took or civil, is the chain, tic, or ligature which binds, unauthorzied possession of the papers and recoerces, persuades, or obliges the obligor; that cords in the office of the Court of Appeals, all civil obligation, therefore, springs from and appointed Francis P. Blair clerk, and attemptis regulated by the punitory or remedial power ed to do business and decide some causes, of human law; that the destruction or with- their opinions on which, were published by drawal of all such power, must annihilate all Thomas B. Monroe, in a small duo-decimo merely civil obligation; that, consequently, volume, which has never been regarded or that which impairs such power must, to the read as authority. The judges of the constitusame extent, impair such obligation; and, that, tional Court of Appeals were thus deprived, whatever renders the remedial agency of the without their consent, of the means of dislaw less certain, effectual, or valuable, impairs charging official duties properly; and, the peoit; and, also, necessarily impairs, therefore, ple not knowing whether the "old" or the the obligation which it creates. 3d. That "new court" was the constitutional tribunal the civil obligation of a contract depends on of revision, some appealed to one, and some the law of the place when and where it is to the other. In this perplexing crisis of jumade; and that any subsequent legislation that dicial anarchy, the only authoritative arbiter essentially impairs the legal remedy for main-was the ultimate sovereign-the freemen of taining or enforcing that contract, must con- the State at the polls. To that final and only sequently, so far, impair its legal obligation. tribunal, therefore, both parties appealed; 4th. That, if a retro-active extension of re- and no period, in the history of Kentucky, was plevin from three months to two years would ever more pregnant, or marked with more exnot impair the obligation of a contract made citement or able and pervading discussion, under the shorter replevin law, the like pro- than that which immediately preceded the anlongation to one hundred years would not im-nual elections in the year 1825. The portenpair the obligation; and, if this would not, the tous agony resulted in the election, to the abrogation of all legal remedy could not. 5th. House of Representatives, of a decisive maThat it is impossible that legislation can de- jority in favor of the "old court," and against stroy or impair the legal obligation of contracts, the constitutionality of the "new court." But otherwise than by operating on the legal rem- only one-third of the senators having passed edies for enforcing them; and, that consequent- the ordeal of that election, a small "new court" ly, any legislation retro-actively and essen- majority still remained in the Senate; and, tially deteriorating legal remedy, as certainly disregarding the submission of the question to and essentially impairs the legal obligation of the votes of the people, that little majority all contracts on which it so retro-acts: And, refused to repeal the "reorganizing act," or finally, therefore, that the retrospective ex-acknowledge the existence of the "old court."

This unexpected and perilous contumacy, judicial independeuce which it guaranties. It brought the antagonistic parties to the brink demonstrates that, if the appellate judges had of a bloody revolution. For months the Com- been dependent on a bare majority of the monwealth was trembling on the crater of a people or their representatives, the constitution heaving volcano. But the considerate prudence would have been paralyzed, justice dethroned, of the "old court party" prevented an erup- and property subjected to rapine, by tumultution, by forbearing to resort to force to restore ous passions and numerical power. And its to the "old court," its papers and records, incidents and results not only commend to the which the minority guarded, in Blair's custody, gratitude of the living and unborn, the proby military means-and, also, by appealing, scribed judges and the efficient compatriots once more, to the constituent body, in a printed who dedicated their time and talents for years manifesto prepared by George Robertson, to the rescue of the constitution, but also, imsigned by the members constituting the ma-pressively illustrate the object and efficacy of jority of the popular branch of the legislature, the fundamental limitations on the will of the and exposing the incidents of the controversy majority-that is, the ultimate prevalence of and the conduct of the defeated party. The reason over passion-of truth over errorresult of this last appeal was a majority in the which, in popular governments, is the sure Senate, and an augmented majority in the offspring only of time and sober deliberation, House of Represetatives in favor of repealing which it is the object of constitutional checks as unconstitutional, the "act to reorganize the to ensure. Court of Appeals." That act was according- As first and now organized, the Court of ly repealed in the session of 1826-7, by "an Appeals consisted of three judges, one of act to remove the unconstitutional obstructions whom is commissioned the "Chief Justice of which have been thrown in the way of the Kentucky." In the year 1801, the number was Court of Appeals," passed by both houses the increased to four, and Thomas Todd (who had 30th December, 1826-the Governor's objec- been clerk of that court, and in the year 1807 tions notwithstanding. The "new court" van-was appointed a judge of the Supreme Court ished, and the "old court," redeemed and re- of the United States) was the first who was instated, proceeded, without further question or obstruction, in the discharge of its accustomed duties.

fourth judge. In the year 1813, the number was prospectively reduced to three; and, all the incumbents having immediately resigned, two of them (Boyle and Logan) were instantly re-commissioned, and Robert Trimble, who was commissioned by Gov. Shelby, having declined to accept, Owsley, who had been one of the four judges who had resigned, was afterwards also re-commissioned; and ever since that time, the court has consisted of three judges only.

As soon as a quietus had been given to this agitating controversy, John Boyle, who had adhered to the helm throughout the storm in hope of saving the constitution, resigned the chief-justiceship of Kentucky, and George M. Bibb, a distinguished champion of the "relief" and "new court" parties was, by a relief governor and Senate, appointed his successor. Owsley and Mills retained their seats on the appellate bench until the fall of 1828, when they also resigned, and, being re-nominated by Gov. Metcalfe, who had just succeeded Gov. Desha, they were rejected by a relief senate, and George Robertson and Joseph R. Underwood (both "anti-relief" and "old court") were appointed to succeed them. Then Bibb forthwith resigned, and there being no chiefjustice until near the close of 1829, these two judges constituted the court, and, during that year, declared null and void all the acts and of the names of all who have been judges of The following is a chronological catalogue decisions of the "new court," and disposed of the Appellate Court of Kentucky:

about one thousand cases on the docket of the Court of Appeals. In December, 1829, Robertson was appointed chief-justice, and thus, once more, "the old court" was complete, homogeneous and peaceful, and the most important question that could engage the councils or agitate the passions of a state, was settled finally, and settled right.

All the judges have received equal salaries. At first the salary of each judge was $666,66. In the year 1806, it was raised to $1000; in the year 1815, to $1500; in the year 1837, to $2000; and in the year 1843, it was reduced to $1500. During the prevalence of the paper of the Bank of the Commonwealth, the salaries were paid in that currency, which was so much depreciated as, for some time, to reduce the value of each salary to about 750.

CHIEF JUTICCES.

Harry Innis, commissioned June 18, 1792.
George Muter,
Dec. 7, 1792.
Thomas Todd,
Dec. 13, 1806.
Felix Grundy,
April 11, 1807.
Ninian Edwards,
Geo. M. Bibb,
John Boyle,
Geo. M. Bibb,*

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May 30, 1809.

M'ch 20, 1810.

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Jan. 5, 1827.

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Dec. 16, 1829.

April 7, 1843.

Resigned Dec. 28, 1828.

This memorable contest between the constitution and the passions of a popular majority-between the judicial and the legislative Geo, Robertson, departments-proves the efficacy of Kentucky's E. M. Ewing, constitutional structure, and illustrates the Thos. A. Marshall, " reason and the importance of that system of

June 1, 1847.

JUDGES.

Benj. Sebastian, commissioned June

Caleb Wallace,

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Thomas Todd,

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Felix Grundy,

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Ninian Edwards,

Robert Trimble,

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William Logan,*

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Geo. M. Bibb,

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John Boyle,

William Logan,

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James Clark,

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The reports of the first, are in three volumes 28, 1792. of the second, in six-of the third, in seven June 28, 1792. of the fourth, in seven-of the fifth, in nine Dec. 19, 1801.-and the last, who is yet the reporter, has Dec. 10, 1806. [published seven volumes. Consequently, Dec. 18, 1806. there are now forty-six volumes of the reporApril 13, 1807. [ted decisions of the Court of Appeals of KenJan. 11, 1808. tucky. Of these reports, Hardin's, Bibb's, Jan. 31, 1808. and Dana's are most accurate-Littell's April 1, 1809. Thomas B. Monroe's and Ben. Monroe's next. Jan. 20, 1810. Those of both the Marshall's are signally inMarch 29, 1810. correct and deficient in execution. Dana's April 8, 1810. in execution and in the character of the cases, Jan. 14, 1819. are generally deemed the best. Of the deFeb. 16, 1820. (cisions in Dana, it has been reported of Judge Dec. 24, 1828. Story that he said they were the best in the Dec. 24, 1828. Union-and of Chancellor Kent, that he knew Dec. 21, 1829. [no state decisions superior to them. And tha: Dec. 23, 1831. Jeminent jurist, in the last edition of his ComMarch 5, 1835. mentaries, has made frequent reference to March 18, 1835. opinions of chief-justice Robertson, and has April 7, 1843. commended them in flattering terms. June 7, 1847. *Resigned January 30, 1808. Of the chief-justices, Muter, Boyle, and Robertson were in commission, collectively, about 41 years-Muter for about 11, Boyle 16, and Robertson nearly 14 years; and of all the justices of the court, Logan, Mills, and Ows-issued to reverse a judgment or decree for ley held their stations longest.

John Rowan,
Benjamin Mills,
Geo. Robertson,
Jos. R. Underwood, "
Richard A Buckner, "
Samuel S. Nicholas, "
Ephriam M. Ewing,
Thos. A. Marshall,
Daniel Breck,
James Simpson,

66

66

The comprehensive jurisdiction of the court imposes upon it duties peculiarly onerous. An act of the Assembly of 1796, confers on this Appellate Court jurisdiction of appeals or writs of error, "in cases in which the inferior courts have jurisdiction." A writ of error may be

one cent; but, by an act of 1796, no appeal In the year 1803, Muter, very poor and can be prosecuted to reverse a judgment or rather superannuated, was induced to resign by decree, unless it relate to a franchise or freethe promise of an annuity of $300, which, hold, or (if it do not) unless the amount of it, being guarantied by an act of the legislature in "exclusive of costs," be at leat $100. But in good faith, was complained of as an odious cases of decretal divorces, and in fines for riots and unconstitutional "provision," and was and routs, the legislature has denied to the taken away by a repealing act of the next court any revising jurisdiction. Still, although year. it has no original jurisdiction excepting only Under the first constitution of 1792, the ap-in the trial of clerks, and although it has no pellate judges were required to state in their criminal jurisdiction in any case of felony, the opinions such facts and authorities as should average number of its annual decisions has, for be necessary to expose the principle of each many years, been about five hundred. The decision. But no mode of reporting the de-court is required to hold two terms in each cision was provided by legislative enactment year-one commencing the first Monday in until 1815, when the governor was authorized May, the other the first Monday in September, to appoint a reporter. Previously to that time, James Hughes, an eminent "land lawyer," had, at his own expense, published a volume of the decisions of the old District Court of Kentucky, rendered in suits for land-commencing in 1785 and ending in 1801; Achilles Sneed, clerk of the Court of Appeals, had, in 1805, un- A statute of 1816 enacted, that "all reports der the authority of that court, published a small of cases decided in England since the 4th of volume of miscellaneous opinions, copied from July, 1776, should not be read in court or cited the court's order book; and Martin D. Hardin, by the court." The object of this strange ena distinguished lawyer, had, in 1810, published actment was to interdict the use of any British a volume of the decisions from 1805 to 1808, decision since the declaration of American Inat the instance of the court in execution of a leg-dependence. The statute, however, literally islative injunction of 1807, requiring the judges imports, not that no such decision shall be to select a reporter. Geo. M. Bibb was the first read, but that "all" shall not be. And this reporter appointed by the Governor. His re-self-destructive phraseology harmonises with ports, in four volumes, include opinions from the purpose of the act-that is, to smother the 1808 to 1817. Alexander K. Marshall, Wm. light of science and stop the growth of jurisLittell, Thomas B. Monroe, John J. Marshall, prudence. But for many years, the Court of James G. Dana, and Benj. Monroe were, suc- Appeals inflexibly enforced the statute--not in cessively, appointed, and reported afterwards. its letter, but in its aim. In the reports, how

and no term is allowed to be less than fortyeight juridical days. By a rule of court, any party may appear either by himself or his counsel, and in person or by brief. And a majority of the cases are decided without oral argument.

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