PRELECTION.

Shortly after the close of the last war with England, the Legislature of Kentucky initiated, what has since been called, "the relief system," by extending the right to replevy judgments from three to twelve months. To minister still more relief to debtors" The Bank of the Commonwealth" was chartered by a statute passed on the 29th of November, 1820, and without any other capital than the net proceeds of the sales, as they might accrue, of some vacant lands, and for the debts or notes of which Bank the State was not to be responsible beyond the said capital, which was scarcely more than nominal. It was foreseen and, by the debtor class desired that the notes issued by that Bank would soon become depreciated; and in a short time, the depreciation fell to two dollars in paper of said Bank for one dollar in gold or silver. To effectuate the relief intended by the charter, the Legislature, on the 25th of December, passed an act providing that, if a judgment creditor would endorse on his execution that he would take the paper of said Bank at par in satisfaction of his judgment, the debtor should be entitled to a replevin of only three months; but that, if such endorsement should not be made, the debtor might replevy for two years; and, by an act of 1821, the ca-sa for debt was abolished, and the right to subject choses in action and equities to the satisfaction of judgments was substituted. These extensions of replevin and this abrogation of the ca-sa were, in terms, made applicable to all debts whenever or wherever contracted-and were, consequently, expressly retroactive in their operation-embracing contracts made in Kentucky before the date of the enactment as well as such as should be made afterwards. To the retrospective aspect many conservative men objected as inconsistent with that provision in the national constitution which prohibits any State enactment "impairing the obligation of contracts," and also with that of the constitution of Kentucky which forbids any legislative act "impairing contracts." A majority of the people of Kentucky, desiring legislative relief, either because they were in debt or sympathized with those who were, endeavored to uphold the whole relief system, while a firm and scrupulous minority denounced it as unconstitutional and void. That collision produced universal excitement, which controlled the local elections. The question was brought before the Court of Appeals of Kentucky, and at its Fall term, in 1823, that tribunal unanimously decided, in an opinion delivered on the 8th of October, 1823, by Ch. Jus. Boyle, in the case of Blair vs. Williams, and in opinions seriatim by the whole court on the 11th of the same month, in the case of Lapsley vs. Brashear, &c., that, so far as the Legislature had attempted to make the extension of replevin retroactive, its acts were interdicted by both the constitution of the State and of the Union. As was foreseen, those decisions produced very great exasperation and consequent denunciation of the court. The Judges were charged with arrogating supremacy over the popular will-their authority to declare void any act of the Legislature was denied, and

they were denounced by the organs and stump orators of the dominant relief party as usurpers and self-made kings. No popular controversy, waged without bloodshed, was ever more absorbing or acrimonious than that which raged, like a hurricane, over Kentucky for about three years succeeding the promulgation of those judicial decisions.

On the 10th day of December, 1823, the following resolutions, prefaced by a long, bombastic, denunciatory, and ad captandum preamble, were adopted by the following vote in the House of RepresentativesYeas--Messrs. Abel, Ashby, Breckinridge, Brown, Chenowith, Churchill, Cockerill, Daveiss, Dejarnett, Desha, H. S. Emerson, J. Emerson, Eward, Farrow, Fletcher, French, Galloway, Green, S. Griffith, Hall, Harald, Hayden, Holt, Joyes, Lecompte, Lee, Lynch, Macy, May, Mitchell, Mosley, Mullens, Munford, J. M'Connell, M'Dowell, M'Elroy, Napier, Nuttall, Oldham, O'Bannon, Porter, Prince, Railey, Riddle, Rodes, Rowan, Secrest, Selby, Stapp, Stephens, Stith, Thomas, Ward, Webber, Woolford and Younger-56.

Nays-Mr. Speaker, Messrs. Alexander, Berry, Caldwell, Cox, Cunningham, Duncan, Farmer, D. Garrard, Gist, W. R. Griffith, Hawes, Lander, Laughlin, Logan, Lyne, Marshall, Montgomery, Morgan, J. M. M'Connell, M'Millan, New, Oglesby, Pope, Rapier, Rumsey, Russell, G. Slaughter, P. C. Slaughter, Thomson, Tilford, Todd, True, Turner, Wickliffe, Wood, Woodson and Woodward-40.

Mr. Robertson, then Speaker of the House, made the following speech on that occasion, in opposition to that preamble and those resolutions.

SPEECH OF MR. ROBERTSON,

Delivered in Committee of the Whole in the Legislature of Kentucky, on the 4th day of December, 1823, on a long preamble, concluding with the following reso tions in relation to the Court of Appeals, for their late decision against the two years replevin and endorsrment acts of this State.

Resolved by the General Assembly of the Com- [tention of the members, that he should be able monwealth of Kentucky, That they do most to suggest some reasons, which, if they could solemnly protest against the doctrines promulgated in that decision, as ruinous in their practical effects to the good people of this Commonwealth, and subversive of their dearest and most invaluable political rights.

And it is hereby further resolved by the authority aforesaid, That if the decision should not, by the court, be reviewed, or reversed, but should be attempted to be enforced upon the good people of this commonwealth, the legislature cannot, ought not, and will not furnish any facilities for its enforcement; on the contrary, that it is the bounden duty of the legislature, in vindication of the rights of the people, and the great principles upon which those rights depend, to withhold the agency of the ministerial officers of the government from assisting in the practical propaga tion of the erroneous doctrine of that decision, at least until an opportunity be afforded to the people of exploring the new theory of obligation, which it attempts to establish.

Resolved further, by the authority aforesaid, That any effort which the legislature may feel it a duty to make for the contravention of the erroneous doctrine of that decision, ought not to interfere with, or obstruct the administration of justice according to the existing laws which, whether they were or were not expedient, are believed to be constitutional and valid; and which should, when it shall be thought expedient to do so, be repealed by the Legislature, and not by the Appellate Court.

Mr. ROBERTSON (Speaker) arose and said he had not expected that the friends of the resolution would have precipitated their opponents into a discussion of them before time had been given to examine carefully, and endeavor to comprehend the elaborate printed speech which preceeded them as a preamble, and which had been laid on the tables of members only one day before.

He had supposed the only object of printing 500 copies of that argument, was to enable the members to examine it deliberately and faithfully. This he had not had sufficient time to do, although he believed he had read it twice during that morning and the preceding night. He confessed that there were some sentences in it which he feared no member of the committee could clearly and satisfactorily explain. However, he hoped, unprepared as he was, if he could have the patient and close at

not convince, would at least bring those who advocated the resolution to pause and reflect seriously before they should give a final decision. And he hoped that if this argument should be protracted to a length which might be inconvenient to some gentlemen, the acknowledged importance of the subject would be a sufficient apology for the time which should be consumed in discussing it. It was a momentous subject. It was, in its practical results, no other than whether the Judiciary should be, as it was intended by the constitution, a check on the other departments, or whether the legislature should be uncontrolled, and uncontrollable by anything but its own sense of propriety.

That time could not be said to be wasted or employed improperly, which might be necessary for a full development, to the people, of the character and tendency of such a measure, and for an impartial examination and refutation of the arguments which had been published in support of it. Those arguments had been elaborated from a subtle mind, and were intended for general diffusion among the people. He considered them as a tissue of sophisms, and intended to examine them with that freedom which he had a right to use, to show their fallacy. He considered them as poisonous, and was determined to distribute their antidote, as far as he could, by the hum ble contributions of his mind. He had hoped that this subject would not be brought before the legislature during this session; it could do no good; the community had been long enough agitated; the public mind had been long enough and highly enough inflamed. He had come here for the purpose of endeavoring to restore the people to peace, to confidence, to repose and to concord. This proposition will not tend to any of these desirable ends; it is not intended for conciliation, or the people's good. As the gentleman from Jefferson (Mr. Rowan) has forced the subject on the consideration of the legislature and of the people, and has thought proper to urge it with all the powers of his intellect, in a long "ad captandum" manifesto, which has been published, it is important that the public mind should be enlightened by a full and free discussion. The people must now understand and decide for themselves the great and fundamental principles involved in these resolutions. Whenever

they shall be permitted to investigate them relation to the Court of Appeals, as what fol dispassionately and impartially, they will de- lowed was only a consequence from them. cide them correctly, and it is hoped, irrevoca- Among many strong and striking objections bly. This is an eventful crisis in the affairs to those resolutions, he would only mention a of Kentucky-a great era in her history and few. First, when taken in connection with the the development of her constitution. Let the preamble which assigns the reasons for adoptpeople be informed of the truth-let them have ing them, they import what is not true-that light, and all will be right. Many of them is, that the court has been guilty of usurpation. have been deceived. These resolutions are Secondly, they practically deny that the court designed to deceive and amuse them still long-has a right to decide on the constitutionality er. They are illusory: they speak one thing of the acts of the legislature. Thirdly, they and mean another. The people should know strike at the constitutional power and indeit. Let the discussion therefore be ample and pendence of the judiciary, effect no good or free, and if it should result in the inculcation practicable end, are derogatory to the charof right notions of constitutional government, acter of the state, and contain assertions which of "civil liberty" in its genuine and practical are not just or true. import, and of "political sovereignty," this legislature may felicitate itself for having done more good and prevented more mischief than it it could have done by any legislation.

And ist, is it true, said he, that the court have been guilty of usurpation? If they have, what apology has the gentleman, who introduced these resolutions, for not moving to reWhatever shall be thought of these resolu-move the judges from office? Why content tions here or elsewhere-whatever feelings himself with decrying them? He knows, and they may generate, he hoped, (he said) that this committee knows, that there has been no the discussion would be grave and decorous, usurpation. Usurpation is the assumption of and the decision dispassionate and impartial. power not delegated. Have the court arrogaHe would most respectfully and earnestly en- ted to themselves any power that does not constitutionally belong to their station? It is deavor to feel a just sense of their responsibili-blunt and bold" enough to utter such an not to be believed that any member will be ty, and their public duty--to stifle all passion, and to look only to the public good. Thus opinion, except the mover of the resolutions; prepared, he would hope for a good result, for aud it would be due to him, to suppose in a vote which would be the decision of sober charity, that the utterance of such a monstrous and enlightened reason, not of passion; for such a vote as men must give who submit to the control of their judgments alone, and who look only to the glory, prosperity, and happiness of their country.

treat the members of the committee to en

sentiment, in the last paragraph of his preamble, was an inadvertence; for that gentleman, for reasons which shall be hereafter disclosed, should be the last member of the committee who would make so unauthorized a charge.— What have the court done? They have deciThe subject of debate naturally divides it-ded, on their oath of office, that the Constituself, said Mr. Robertson, into two primary po- tion of the United States is paramount to an act sitions. 1st. Is the decision of the Court of of the Kentucky Legislature. In doing this Appeals correct? 2nd. Even if it should be what unusual or dangerous power have they believed to be wrong, are the resolutions prop- exerted? In pronouncing an act of assembly er and in consonance with the theory and fun- to be unconstitutional, they have done only damental principles of the government? what every court in the United States has often and properly done; and what it is frequently their duty to do. If this makes them usurpers they have been guilty of usurpation ever since they were elevated to the bench, and the member who has exhibited the charge has participated in that usurpation more than once, whilst he was associated with a majority of them.

He would invert the natural order and consider the last proposition first; and after having endeavored to show that, even if the court had erred, there were still insurmountable objections to the resolutions, he should try to prove that the decision was sustainable on the plainest principles of reason, and of justice, and by the obvious and undeniable import of the federal and state constitutions; and strange as it might appear, he expected to derive no inconsiderabie support to his argument from the preamble itself, and hoped to be able before he could resume his seat, to exhibit such palpable fallacies and incongruities in that recondite document, as to induce even its zealous author to doubt the legitimacy of his conclusion. Having on a former occasion given his opinion on so much of this subject as relates to the decision of the supreme court on the occupant laws of this state, on which he had suggested what he considered the most elligible course for the legislature to pursue, he would forbear any animadversions on that topic now, and should only notice the two first resolutions in

No proposition, (said he,) is more universally conceded by the enlightened, or is more firmly established by authority or reason, than the power of the judiciary, and their duty, too, to declare an act of legislation void for repugnance to the constitution; a power and a duty which result from the nature of the judicial functions, the objects of the judicial trust, and constitute a palladium of security for the dearest individual rights. The constitution is the paramount law; the Judges, Legislature, and every citizen, are bound by it.The powers of legislation are limited by it; the rights of the citizen are guaranteed and protected by it; and the courts are bound by their oaths to enforce it. It establishes certain grest