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 excited a great outery against the as they seemed to think, vitally interested in judges. Their authority to disregard a legismaintaining 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 reportheir 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, tie, 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 fourth judge. In the year 1813, the number or obstruction, in the discharge of its accus-was prospectively reduced to three; and, all tomed duties. the incumbents having immediately resigned, As soon as a quietus had been given to this two of them (Boyle and Logan) were instantly agitating controversy, John Boyle, who had re-commissioned, and Robert Trimble, who adhered to the helm throughout the storm in was commissioned by Gov. Shelby, having hope of saving the constitution, resigned the declined to accept, Owsley, who had been one chief-justiceship of Kentucky, and George M. of the four judges who had resigned, was afterBibb, a distinguished champion of the "relief" wards also re-commissioned; and ever since and "new court" parties was, by a relief gov- that time, the court has consisted of three ernor and Senate, appointed his successor. judges only. 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. This memorable contest between the constitution and the passions of a popular majority-between the judicial and the legislative departments-proves the efficacy of Kentucky's constitutional structure, and illustrates the reason and the importance of that system of 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. JUDGES. The reports of the first, are in three volumes Benj. Sebastian, commissioned June 28, 1792.-of the second, in six-of the third, in seven Caleb Wallace, Thomas Todd, Felix Grundy, Ninian Edwards, Robert Trimble, 66 William Logan," 66 Geo. M. Bibb, John Boyle, William Logan, 66 James Clark, William Owsley, 66 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. 13, 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 that Dec. 23, 1831. eminent 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. one eent; 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. ever, of J. J. Marshall, and Dana, and Ben. oftener filled by such jurists, had not a suicidal Monroe, copious references are made (without parsimony withheld from the judges an aderegard to this interdict) to post-revolutionary quate compensation for the talents, learning, cases and treatises in England, and now that labor and responsibility which the best instatute may be considered dead. terests of the commonwealth demand for the The Appellate court of Kentucky has gen-judicial service, in a court appointed to guard erally been able, and always firm, pure, and the rights and the liberties of the people, and faithful. It has been illustrated by some to settle conclusively the laws of the commonnames that would adorn any bench of justice or wealth. age of jurisprudence. And it might have been ADDRESS the troubled scenes of earth. Such, always, is the slow-ripening fruit of rare merit--the posthumous destiny of God-like deeds. doomed to the hemlock for teaching the ennoUnheeded while he lived, Socrates, was bling doctrines of God's unity, and man's immortality, in defiance of the polytheism and leo was a martyr to his premature intimation of carnality of an idolatrous generation. Gallithe fact, then deemed by the Hierarchy contra Address delivered by Mr. Robertson in the Chapel of Morrison College, on the 22nd of February, 1852, at the request of the pupils of the Law Department of Transylvania University. Kentucky could not, this day, perform a service more grateful or more useful than to commemorate, in a becoming manner, the double anniversary of the birth of the noblest of illustrious Americans, and of a battle which shed a bright halo of glory around the column wonderful man may be as eventful to they to the Bible, that the earth revolves around temporal, as that of the crucified Messiah will be to the eternal welfare of mankind. And, in the magic fight of Buenna Vista, Kentuckians stood, Kentuckian-like, side by side with gallant sons of other States, and, as a forlorn hope, against mighty odds, gloriously triumphed on that bloody and hard-fought field. We should honor the survivors of that devo of her own fame. The advent on earth of that ted band and never cease to cherish the mem ories of those who, sealing with their blood their own and their country's glory, fell, to rise no more until the judgment day. the sun. Copernicus was dead long before his Bacon tasted none of the fruits of his novum theory of the solar system was acknowledged. organum, and died in disgrace before his inColumbus fell a victim of persecution without ductive philosophy obtained useful circulation. the glorious destiny of the American world or of even the consolation of a prophetic glimpse of his own deathless renown as its discoverer and the first Pioneer of its civilization. And Washand more honored at his death-had, while he ngton, too--though more fortunate in his life, lived, to encounter, like all human benefactors, But the times make it more appropriate to this occasion to consider the life of the bene-envy, calumny, and blind party spirit; and took factor born than the history of that great victory won. A good man lives, not for the present chiefly, but for the future-not for himself only, but also for his country and his race. Such a man, pre-eminently, was GEORGE WASHINGHis was a model life. Full-orbed and spotless, its light may be as benificent to the TON. moral, as that of a cloudless sun is to the physical world. It was his lot to be born, to live, and to die in a country and at a time signally interesting and eventful to mankind. -a country which seems to have been reserved by Providence as the fittest theatre of moral development and social progress-and a transition period when the condition of the old world supplied the fruitful seeds of civil and religious liberty for transplantation, growth, and fructification, on the virgin soil and congenial clime of the new. And, on that arena, and at that crisis, it was his fortune so to act his part in the momentous drama of his day as to embalm his name in the human heart as long as it shall beat with a virtuous or grateful emotion. Washington dead is, to the present and the future, worth even more than Washington living. Though one hundred and twenty years have elapsed from his birth and more than half a century from his death, his virtues are more fragrant and his name more hallowed now, than when he left than half a century, it would be the most happy reached its meridian The light that pours from that refulgent orb --unlike the lurid glare of Mars, or the meteor blaze of the victorious chieftain, or the deceptive phosphorescence of the demagogue-is chaste and parental like that of vestal fire gleaming on the altar of virgin purity; and will ever safely guide the virtuous citizen and statesman in the pathway of private, as well as of public life. This distinguished destiny was the offspring--not of furtune, nor of war, nor of what men call genius, but of right principles and unceasing allegiance to them-of constant devotion to duty in all the walks of life, and of an unreserved dedication of head and heart to virtue, to conntry, and to God. As a man, Washington was modest, selfdenying and upright—as a citizen, he was just, prudent, and patriotic-as a commander of armies, he was cautious, skilful, and firm-as |