PRELECTION. Shortly after the close of the last war with England, the Legislatura 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 ştatute 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 Commonwealth of Kentucky, That they do most 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 govern ment from assisting in the practical propagation 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. tention of the members, that he should be able to suggest some reasons, which, if they could 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 pubResolved further, by the authority aforesaid, lished in support of it. Those argunients That any effort which the legislature may feel had been elaborated from a subtle mind, and it a duty to make for the contravention of the were intended for general diffusion among the erroneous doctrine of that decision, ought not people. He considered them as a tissue of to interfere with, or obstruct the administra- sophisms, and intended to examine them with tion of justice according to the existing laws that freedom which he had a right to use, to which, whether they were or were not expedi- show their fallacy. He considered them as ent, are believed to be constitutional and valid; poisonous, and was determined to distribute and which should, when it shall be thought their antidote, as far as he could, by the hum expedient to do so, be repealed by the Legisla-ble contributions of his mind. He had hoped ture, 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. 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 hot tend to any of these desirable ends; it is not intended for conciliation, or the people's He had supposed the only object of printing good. As the gentleman from Jefferson (Mr. 500 copies of that argument, was to enable the Rowan) has forced the subject on the considmembers to examine it deliberately and faith-eration of the legislature and of the people, and fully. This he had not had sufficient time to has thought proper to urge it with all the pow do, although he believed he had read it twice ers of his intellect, in a long "ad captandum" during that morning and the preceding night. manifesto, which has been published, it is imHe confessed that there were some sentences portant that the public mind should be enin it which he feared no member of the com- lightened by a full and free discussion. The mittee could clearly and satisfactorily ex- people must now understand and decide for plain. However, he hoped, unprepared as he themselves the great and fundamental princiwas, if he could have the patient and close at- ples involved in these resolutions. Whenever they shall be permitted to investigate them relation to the Court of Appeals, as what foldispassionately 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 light, and all will be right. Many of them have been deceived. These resolutions are designed to deceive and amuse them still longer. They are illusory: they speak one thing and mean another. The people should know it. Let the discussion therefore be ample and free, and if it should result in the inculcation of right notions of constitutional government, of "civil liberty" in its genuine and practical 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. ing them, they import what is not true-that is, that the court has been guilty of usurpation. Secondly, they practically deny that the court has a right to decide on the constitutionality of the acts of the legislature. Thirdly, they strike at the constitutional power and independence of the judiciary, effect no good or practicable end, are derogatory to the character of the state, and contain assertions which are not just or true. And 1st, 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 treat the members of the committee to en- constitutionally belong to their station? It is deavor to feel a just sense of their responsibili- not to be believed that any member will be ty, and their public duty--to stifle all passion, "blunt and bold" enough to utter such an 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 a vote which would be the decision of sober 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 happi ness of their country, and it would be due to him, to suppose in charity, that the utterance of such a monstrous 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 committed who would make so unauthorized a charge.The subject of debate naturally divides it-ded, on their oath of office, that the ConstituWhat have the court done? They have deciself, 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 He would invert the natural order and con- and properly done; and what it is frequently sider the last proposition first; and after hav-their duty to do. If this makes them usurpers ing endeavored to show that, even if the court they have been guilty of usurpation ever since 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 Nó proposition, (said he,) is more universalas it might appear, he expected to derive no in- ly conceded by the enlightened, or is more considerabie support to his argument from the firmly established by authority or reason, preamble itself, and hoped to be able before he than the power of the judiciary, and their duty, could resume his seat, to exhibit such palpable too, to declare an act of legislation void for refallacies and incongruities in that recondite pugnance to the constitution; a power and a document, as to induce even its zealous au-duty which result from the nature of the ju thor to doubt the legitimacy of his conclusion. dicial functions, the objects of the judicial Having on a former occasion given his opin- trust, and constitute a palladium of security ion on so much of this subject as relates to the for the dearest individual rights. The constidecision of the supreme court on the occupant tution is the paramount law; the Judges, Leglaws of this state, on which he had suggested islature, and every citizen, are bound by it.what he considered the most elligible course The powers of legislation are limited by it; the for the legislature to pursue, he would forbearights of the citizen are guaranteed and proany an adversions on that for now, and¦. »d by it; and the courts afe bound by their should only notice the two firs. issolutions in oaths to enree it. It establishes certain great 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. |