was that, if allowed to be practised by the tract, are in the eye of justice equally sacred: states, without restriction, there was danger of and whether those of the creditor are sacrificed its perversion and abuse, to such a degree, as to those of the debtor, or the subject be reversed, to irritate the citizens of different states, and we are compelled to think that the constitution ultimately dissever the union, or at least very is overlooked. No unimportant part of the obmuch impair the moral ligaments which alone ligation of every contract, arises from the incan preserve it from disruption. It was there- ducement the debtor is under to preserve his fore deemed better to deprive the states entire- faith. In most cases he (the creditor) would ly of the power, than to jeopard the stability reserve both money and property, in his own of justice, and the integrity of the union, by possession, were he not assured that the LAW running the hazard of its abuse. Justice animates the industry, and quickens the puneshould be stable, and of unvaried tenor tuality of his debtor, and that by its aid he can throughout the union; it is a national object obtain payment in six or nine months. The One object of the federal union is declared to act under review delays this assurance." "The be, "to establish justice." The citizens of right to suspend the recovery of a debt for one each state are protected in the security of equal period, implies the right to suspend it for anrights, in all the states; this creates a national other." It is difficult to conceive how the law spirit-a fraternal feeling in the whole American otherwise impair an existing right, than by can family. And under this view, no clause withholding the remedy, which is in effect to is more essential to the union of the states than sespend the right." the one under consideration; none should be more pertinaciously defended from violation, by the sincere and enlightened patriot. It is one in which every citizen of the United States is as much interested as the people of Kentucky; and if the doctrine be orthodox, that a majority must govern, as it certainly is, with few exceptions, a majority of the states have the right to govern on this subject. There can be no doubt that a majority of the states concur with our Court of Appeals in the construction which they have given to this clause of the federal constitution. It may in safety be demanded of the opposers of that decision, to produce evidence that there is one state opposed to it.

In the face of such a formidable array of authorities-the opinions of those who made the constitution; of those who lived cotemporaneously; of every state in the Union which has expressed an opinion; the decision of the United States' Circuit Court for Pennsylvania; the clear intimations of the Supreme Court; the ability of the argument offered by our court, in support of their decision; the inability of those opposed to the court, to show what the constitution means, unless it means what the court has decided that it does; the evident design of the constiution, deducible from its terms by every rational mode of interpretation—in the face of all this, are not those who denounce the court for error, guilty of extreme temerity? Every state which has acted on the ques- Ought they not at least to doubt, and doubting, tion, has expressed the same sentiment; Mis- to acquiesce, and recoil from the attack which souri, Tennessee, Mississippi, Vermont, North they are making against a co-ordinate departCarolina, have all decided that such an act as ment of the government? Even the elaborate the two years' replevin act of Kentucky is un- replication to the response of the judges, constitutional. The Circuit Court of the when examined, is à virtual concession United States, Judge Washington presiding, of the correctness of the opinion of the has settled the same principle, in the case of court. In all that long document, there is no Golden vs. Prince. In Virginia, since the late attempt to explain the import and design of war, an attempt was made in the legislature to the clause of the constitution in relation to the pass a similar law, and after an able debate, it obligation of contracts—it is ad captandum, was decided almost unanimously that it would metaphysical and evasive; it surrenders the impair the obligation of contracts, and there-argument. The author confounds the plain fore would be unconstitutional, and the meas- and acknowledged distinction between the ure was abandoned. This information I have moral and the legal obligation. He inquires from a gentleman now in the lobby, who was what was the obligation of the contract or covea distinguished member of that legislature. nant entered into between Deity and Abraham! The Supreme Court has virtually given the and answers it himself, by inquiring in what same decision in several cases; and no superior court Abraham could have arraigned his God court in America has given any other decision. for a breach of the covenant. This is irreve The opinion of the Supreme Court of North verent, and is only alluded to, to show the evaCarolina on this subject, in the case of Critten- sions and miserable artifices of the book. den vs. Jones, is now before me; it is very able and elegant, and exhibits substantially the same view as that given by our Court of Appeals. Any gentleman can examine it; it would consume too much time to read the whole case; the following extract may suffice: "If an act postponing the payment of debts be constitutional, what reasonable objection could be made to an act which should enforce the payment before the debt becomes due?" "The rights of both parties established by the con

Does the author of the book suppose that the covenant with Abraham had any civil obligation? Does he not know that its obligation was of a different and far more transcendental character? that it was divine-as immutable as the attributes of Deity? But if the author of this extraordinary production meant to prove any thing by this argument, it was to show that, as the obligation of the covenant did not consist in a legal right to enforce it by legal means, consequently the obligation of a con

poor man's cause-the cause of that constitution which is the boast of our country, and the panoply of its people.

tract between A and B, does not consist in the right to enforce it by legal means. How fallacious the idea! But such are all the arguments in the long book. Let it go to the people with If the people ratify the passage of this bill, the response, and it carries its antidote. It is the constitution is laid low at the feet of any not comparable to that luminous and unan-ambitious man who may lead a majority; the juswerable vindication of the court. The re- diciary will be humbled, all power engrossed by sponse will be read by our children, as a car- the other departments, and instead of being men necessarium, when the replication will governed by the principles of eternal justice, have sunk into oblivion-and when the reputa-fixed as landmarks in the constitution, we tion of its author shall have been swallowed shall be under the dominion of the resentup, like the Niger, in the great moral desert to which it is hastening, the fame of the judges, like the Nile, will flow on, full, perennial and refreshing.

ments, whims and passions of the leaders of ever varying factions. Instead of being blessed with stability, confidence, and security for life, liberty, and property, we shall be cursed An exasperated party may remove the with revolutions, distrust and licentiousness. judges from office, but they cannot disgrace For if the majority can effect their objects in them-they cannot soil their characters. The passing this bill, there is nothing in the powgood and the wise will surround them with er of men, which they may not do. It will their confidence and their plaudits, when then be in vain that the constitution says to those now engaged in the unhallowed attempt them, you shall not pass a bill of attainder; to degrade them, are remembered only as were they will pass it, if they wish to do so. And the blind and envious mob, who exiled Aris- to whom can the appeal be made? Not to the tides, because he was JUST. The act which judiciary; they are no longer a co-ordinate dedeprives them of office will only increase their partment. They bow to the strong party-the claims to higher and better office; it will very party that they were created to check. transmit their memories to posterity, hallowed We may still have a paper constitution, but by the recollection that they were martyrs in the principles which sustain and enforce it the cause of justice, of truth, and of constitu- will be prostrated. We may still have the aptional liberty: it will extend the horizon of their pearance of liberty; so had the Romans under fame, and imprint their merits in proud relief Augustus. We may still have patriots, but on their country's monuments. they will be proscribed; their aspirations will How much more enviable is the fortune, and be treason, and those who govern will be elevated the character of a virtuous man, pun-called the people's friends, and will tyrannize ished for his incorruptible purity, than of him, in their name,-like Clodius, who, after havwho, to acquire a transient triumph, or aning caused the exilation of the patriotic Cicephemeral fame, has helped to pull him down? ero, demolished his house, and erected on its Virtue will triumph-truth will eventually ruins a statue to "Liberty?" If public senprevail. Men pass away and are forgotten, timent sustain this bill, such may be the conbut principles are immortal. The day may sequences. not be far distant when the proudest of us may wish that he were a Boyle, an Owsley, or a This drama is about to close; we are in its Mills, and had been removed from office for his last act. May its last scene be as honorable virtue and firmness. From my boyhood I have and as ennobling to Kentucky, as its preceding known two of these judges intimately, and it ones have been humiliating and alarming. is with pride and confidence that I declare, May we yet behold the ark of our safety, after that I never knew more virtuous, more amia-weathering the most frightful storm that ever ble, more honorable men-purer men or better threatened our ruin, ride in safety and triumph citizens, than John Boyle and William Ows-into its old harbor, the people's affections, with ley. They are ornaments to the bench. With "Liberty and Law" inscribed on its floating the other judge I am not so well acquainted, banner. Whilst we are figuring on the stage in but I know enough of him to believe that he is this eventful drama, we should know, that it an honest and upright man, and able judge. is not so important what parts we play, as that To defend such men in such a cause cannot be we play them well; we act not only for ourselves, criminal to me it is the proudest act of my life. but for those who shall come after us and for I consider myself in this humble and unpopu- the people of other states. The whole Union, lar effort, as one of a small and proscribed as in an amphitheatre, are looking with deep band, who are the forlorn hope of the constitu- concern on our deliberations, and are praying tion. And although I have a foreboding that that Kentucky may be saved from degrada this bill will pass, I will not despond; for I re-tion. And shall their entreaties, their opincollect, that although the darkest day which ions, be disregarded? Will not a just Heaven England ever saw, was that on which Sidney fell, in less than five years she was cheered with the brightest that ever dawned on her

isle.

interpose, and prevent the reckless demolition of that political edifice, which was reared under the auspices of a divine Providence? Is there no Manlius, to give the alarm from the In this unavailing effort, it is not the cause watch-tower? no Camillus, to save the citadel? of the judges alone that I advocate, said Mr. no Ulysses, to steer our shattered ship from the Robertson, but the cause of order, of safety, of whirlpool of party, and save the crew from justice, of liberty-the stranger's cause the those siren sounds, "civil liberty," "the ma

PRELECTION.

After the passage of the "Re-organizing Act," Mr. Robertson urged the minority in the legislature to unite in a protest, appealing to the people of Kentucky, who were then the only arbiters between "the old court" and "the new court," appointed under that act. But some of those who had voted against the act, apprehending that a further struggle would crush themselves, and seal the downfall and proscription of the constitutional party, preferred to ground their arms, and at once submit. It being the purpose of a manifesto to commiit the members of the legislative minority, and animate their party, unanimous co-operation was deemed important, if not indispensable to that end; and consequently the apparent hopelessness of such unanimity discouraged further effort to rally by that mode. In that state of suspense, Mr. Robertson, sick and in bed, was visited by Robert Wickliffe and John Green, who informed him that most of the minority would sign a protest if he would prepare one. Considering this as the last hope, and feeling sure, as prophesied in the foregoing speech, that the people, if properly addressed, would repudiate the act, he resolved (though that was the last day of the session) to try the experiment of a bold and condensed protest, for galvanizing his desponding party, and affording to all, who might desire honest investigation, a text for argument against the act. And accordingly the following protest was prepared by him, signed by the minority, and presented to the House of Representatives before 3 o'clock of that same and last day of the session.

On the presentation of it, Mr. Rowan, as leader of the majority, courteously moved a dispensation of the reading of it, and its admission to the Journals; and thereupon the House of Representatives unanimously voted to place it on the Journals. But the Senate having, just before that vote, rejected it, after hearing it read, Jeroboam Beauchamp, a Senator from the county of Washington, came to the lobby of the House and told Mr. Rowan what the Senate had done, and said to him, "it is the devil, and if you don't kick it out of your House, it will blow us all sky-high."

Mr. Rowan immediately moved a reconsideration of the vote just given; and the protest was then excluded from the Journals. But it went before the people, and such a civic battle was never fought in Kentucky, as that which followed the promulgation of that small document. The result was the election, in August 1825, of a large majority of the House of Representatives, against the Re-organizing act.

PROTEST OF THE MINORITY,
Against the Act Re-organzing the Court of Appeals.

[December, 1824.]

re

The undersigned, composing the minority supreme powers of that department must be of the legislature, who voted against the act vested in a chief magistrate. The Governor "reorganizing the Court of Appeals," being can only be removed from his office by twoabout to separate, perhaps never to meet on thirds, on impeachment-the office cannot be this theatre again, cannot, consistently with a abolished-it cannot be removed from him by sense of duty to ourselves, our constituents, any act of the legislature. The judges of the and the constitution of our country, close our Court of Appeals can only be removed from official duties, without uniting together, and their offices by two-thirds, either by impeachwith one voice, respectfully, but firmly and ment or address. The offices cannot be solemnly, protesting against this unprecedent-moved from the judges by any act of the leg. ed act, as unconstitutional, unjust and alarm-islature. The court cannot be abolished; and ing. the judges, unless removed by impeachment or The constitution declares, that "the Judges address, are entitled to hold their offices during of the supreme and inferior courts shall hold the continuance of their court. There shall be their offices during their good behavior, and a Court of Appeals, and but one Court of Apthe continuance of their respective courts." peals. If the legislature can abolish, or disWhile the court continues, the judge is entitled continue it for a moment, there is nothing to to his office, until removed for misbehavior. prevent its abolition forever. But the conIf he be charged with malfeasance in office, vention who formed the constitution have not the constitution requires that he shall be im- thought proper to leave to the legislature the peached; but if, for any other reasonable power of creating, or destroying, or modifying, cause, not sufficient for an impeachment, it be or changing the three great departments of the proposed to remove him, it is necessary that government; they are fixed by the constitutwo-thirds of both branches of the legislature tion, and are as stable and immovable as that should concur in an address to the Governor to sacred and inviolable charter. Although the remove him. The constitution tolerates no governor may die or resign, there is still an exother mode of removing the judge from the of- ecutive department, and it is the same departfice; this is denied by none. If then the court ment. And although the judges of the Court cannot be abolished or discontinued, the at- of Appeals may die or resign, there is still a tempt to remove the judges by its reorganiza-Court of Appeals, and it is the same court. tion is "palpably and obviously" unconstitu- The officers, in each case, may change, but the rional. We insist that the Court of Appeals office is the same-the executive still continues is created by the constitution, and therefore the court still continues. This is the doccan only be abolished by the people, in con-trine of the constitution-it is the doctrine of vention.

genuine republicanism-it was the doctrine of the republicans of 1802, with Mr. Jefferson at their head. The republican party in Congress, in 1802, acknowledged that the supreme court could not be abolished, nor the judges removed from office by an act of ordinary legislation; because the court was established by the constitution, and the judges hold their offices during good behavior, and the continuance of their court. The party were unanimous in this opinion, but insisted that inferior courts, which are established by law, may be abolished by law, whenever they become inconvenient or unnecessary.

No stronger evidence of this is necessary, than the following extracts from the constitution: "The powers of the government of the state of Kentucky shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, viz: Those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another." "The legislative power of this commonwealth shall be vested in two distinct branches," &c. "The judiciary powers of this commonwealth shall be vested in one supreme court," &c. Each department is created by the constitution, for Our constitution, like that of the nation, alwise ends-and must exist as long as the con-lows the legislature, from time to time, to esstitution endures. There must be a judiciary tablish the inferior courts; because, experience department, as well as legislative and execu- might prove the necessity of changing those tive. The ultimate powers of that depart-courts, so as to adapt them to the condition of ment must be vested in one court of appeals. the country. But each constitution requires There must be an executive department. The that there shall be one supreme court, and the