YALE UNIVERSITY
LIBRARY

SCRAP BOOK

ON

LAW AND POLITICS. lEN AND TIES.

BY

GEORGE ROBERTSON, L. L. D.

MINIMA PARS SUI.

"Non sibe sed Pratria."
"Non ego ventosa venor suffragia Plehis."

LEXINGTON, KT: ,
A. W. BIJJEK, PEINTER AND PCBLIBHJtt.
"issij."

DEDICATION

Tnas AuTHOB to his Children ; —
Hoping that it may be a safe guide to you andyour's, in
time to come, your Father affectionately dedicates to you and, through you, to your descendants,
this humble volume of his occasional effusions, as a faithful memorial of principles and conduct
which he hopes that you will approve and try to illustrate.
"Avise lefn" —
" Soyes ferme."

[Copy right secured.]

PREFACE.

WiSHiNGto exhibit a sample of his capabihties as Printer and Binder,
recently estabhshed in the city of Lexington, Ky., the Pubhsher,
understanding that the Hon. George Robertson retained copies of many
of his miscellaneous addresses, the publication of which, in a more per
manent form, had been desired by many friends, obtained his consent to
publish such of them as constitute this volume.
In making the selection, variety, as well as utility, has been consulted.
Some of the selected articles are on constitutional principles of vital
importance — some on interesting questions of legislation and political
economy — some on general jurisprudence — and others literary, bio
graphic, and historic.
The author, not desiring such a publication, during his life, yielded his
consent to it now, as he informed the Publisher, chiefly for the purpose of
preserving fugitive writings, which he desires to save and transmit to his
posterity; and he is, therefore, permitted to dedicate to his children — a
volume which the Publisher hopes, that not only they, but the Public, and
especially of Kentucky, will find to contain sound principles, interest
ing facts, and wholesome counsels.
The mechanical execution is not, altogether, as satisfactory as was
desired and expected. Typographical errors have resulted from acci
dent and haste. But, while most of these are too minute for a special
reference to them, only a few pervert or obscure the sense. One of the
later may be found in the fourth line of the first page, where "Governor"
is misprinted for LIEUT. -Governor. Matter also, which the larger and
more open style of ordinary book print, would have extended to at least
650 pages, having been compressed into only 402 pages, the volume is
neither as readable, nor as attractive to the taste as it might, at no
greater cost, have been made. But, with all its faults, it is submitted
to a generous public, who will be concerned more for the substance than
the form — the body than the drapery.

CONTENTS.

1. Argument on "New Election" of Governor of Kentucky, (1817.) • 1
2. Speech in Congress (1819) against interdicting Slaveryin Arkansas, 21
3. Speech in Congress (1820) in favor of establishing the present system
of selling the Public Lands, - - - - 29
4. Report (1823) on Popular Education in Kentucky, - - 44
5. Speech against resolutions condemnatory of the Court of Appeals in
Kentucky, ---.-..-..49
6. Speech on the Bill for re-organizing (abolishing) the Court of Appeals, 75
7. Protest against the Re-organizing Act,  90
8. Manifesto of the old Court Party, (1826) .-.-,. 95
9. Plebeian Letters, - - 105
10. Circular Address to Kentucky on the principle and policy of protecting
domestic capital and labor, - - - - - 138
11. Letter (1823) to Ohio Legislature infavOrof Mr. Clay for President, 147
12. Invitation (1827) to Mr. Clay to a Garrard dinner, - - - 149
13. Garrard Address on Presidential election, (1828,) - - - 151
14. Speech at the Clay Festival, (1842,) - - - - - 154
15. Address on the reception of Mr. Clay's dead body at Lexington, ( 1 862,) 1 56
16. Anniversary Address at Centre College, - - - - 160
17. Introductory Lecture (1835) to Law Class of Transylvania, - - 171
18. Lecture against Nullification, - - - - - - 186
19. Lecture on Equity, - -  206
20. Biographical Sketch of Chief-Justice Boyle,  216
21. Lecture on Marriage and Divorce,  227
22. Valedictory Address to Law Class of Transylvania, - r - 234
23. Lecture on the Powers of Congress and the Resolutions of " '98," - 245
24: Lecture on Legislative and Popular Instructions, ... - 257
35. Anniversary Address on the Settlement of Kentucky, - - - 268
26. Trial of Dr. Abner Baker,  * - 282
27. Speech on said Trial,  294
28. Speech against the Repeal of the Non-Importation Act of 1833, • 318
29. Address to the People of Fayette on Slavery, .... 330
90. Valedictory to the Kentucky Legislature, (1853,) - • - . 334
31. Address to Fayette against thie New Constitution, - . . . 333
32. Speech on the 22nd February, 1852, ...... 352
34. Judicial Opinion on the Power to establish Post Eoadi, - • • 364

37. Petition for a re-hearing in Simrall's hpirs vs. Jacob, in the jientucKy
Court of Appeals, - . - . ... 393
38 Valedictory to Congressional constituents, 1821, . - " ^^^

PRELECTION.

At the annual election in August,, 1816, George Madison ^yas elected Gover
nor, and Gat)riel Slaughter Lieutenant Governor of Kentucky. Madison took
the official" oath, but died in pctober, 1816, before he had entered on the duties
of his office, which having devolved, under the constitution, on the Governor
elect. Slaughter undertook the performance of them, and appointed John Pope
Secretary of State. Mr. Pope, as a prominent politician, had become obnoxious
to the prejudices of the dominant party, under the banner of his former rival,
Henry Clay. That party manifested general and violent dissatisfaction at the ap
pointment of Pope, who they feared would control the State administration and dis
pense its executive patronage. To get clear of him, some ot his leading oppo
nents proposed the election of a new Governor to fill the office during the resi
due of the term for which Madison had been elected; and that purpose engaged
the attention and agitated the passions of the people of Kentucky with extraordi
nary fervor for more than a year.
At the first legislative session succeeding Madison'.s death, on the 27th day of
January, 1817, Mr. J. Cabell B^eqkinridge, a member of the House of Represen
tatives, submitted the following resolution:
'•Resolced, That the General Assembly of tfie Commpnypealth of Kentucky
provide by law for electing a Governor to fill the vacancy occasioned by the death
of our late Governor."
For that resolution, after elaborate discussion, in committee of the whole, the
following was substituted:
"Resolved by the General AssernMy of the Commonwealth of Kentuclcy, That the
present Lieutenant Governor is entitled to hold, by constitutional right, the office
of Governor during the residue of the term for which his late Excellency, George
Madison was elected, and that no provision can be made by law for holding an
election to supply the vacancy."
On the 30th of January, IB]?, the House adopted the substitute by the follow
ing vote:
Yeas — Messrs. Barret, Birney, Blackburn, Booker, Bowman, Caldwell, Carson,
Cook, Cotton, Cox, Cummins, Cunningham, Davidson, Davis, DoUerhide, Dun
can, (of Lincoln) Elleston, Ewing. Ford, Gaither,, Garrison, Gilmore, Given,
Goode. Grant, Green, Grundy, Harrison, Hawkins, Helm, Holeman, Hornbeck,
H.Jones, Logan, Love, Marshall, Mercer, Mills, Moorman, Monroe, McConnell,
McHatton, McMahan, McMillan, Reeves, Robertson, Rowan, Rudd, Shepherd,
Slaughter, Spilman, S. Stevenson, Stapp, P. Stevenson, Todd, Green, Underwood,
Ward, P. White, Weir, Wicldiffe. Woods, and Yantis— 63.
Nays — Messrs. Speaker, (J. J. Crittenden) Armstrong, Barbour, Breckinridge,
Clark, Coleman, Dallam, Davenport, Duncan, (of Daviess,) Fleming, Gaines,
Hart, Hickman, Hopson, Hunter, Jamison, Irvine, J. Jones, Lackey, Metcalfe,
0 wings, Parker, Rice, South, Trigg, Turner, Wall, and W. White — 28.
On the same day the Senate concurred by the following vote:
Yeas — Messrs. Spe;iker, (Ed. Bullock, of Fayette.) Bartlet, Bowmar, Chap-
line, Churchill, Ewing, Faulkner, Griffin. J. Garrard, W. Garraid. Hillyer. Har
din, Jones, Lancaster, Mason, Owens, Perrin, Sebree, Sharp, SiraTall, Sraiih,
Thompson K. Taylor, Worthington, Wickliff'e, Wood, Waide, Welch, and Wil
son— 29.
Navs — Messrs. Chambers, South, and Yancy — 3.
1

[2']
To carry the question at the August eleclion in 1817-, the defeated parly effec''-
ed a thorough organization, brought out candidates in all the counties, and agitatec
the State as it had never been moved before. At that election the following per
sons were elected members of the House of Representatives:
Nathan Gaither and Cyrus Walker, of Adair; Anach Dawson, of Allen; Cave
Johnson, of Boone; John Porter, of Bailer; Thomas Fletcher, of Bath; Joseph K.
Underwood and Hardin Davis, of Barren; Wilham Jewell, of Bullitt; Edward R. .
Chew, of Breckinridge; Larkin Anderson, of Bracken; John L. Hickman, George-
W. Baylor, and Samuel G. Mitchell, of Bourbon; Jessee Coffee, of Casey; Alfred
Sanford, ofCampbell; John .Mercer, of Caldwell; William N. Lane and John Don
aldson, of Christian; James Gholson, of Cumberland; John Bates, of Clay; Wm.
Glenn, of Daviess; Stephen Trigg, of Estill; Joseph C. Breckinridge, John Par
ker, and Thomas T. Barr, of Fayette; Alexander Lackey, of Floyd; Williani P.
Fleming and Michael Cassedy, of Fleming; Charles S. Todd and George M. Bibb,
of Franklin; John Cunningham, of Grayson; Thompson Ward, of Greenup; Rob
ert P. Letcher and James Spilman, of Garrard; Robert Barret and Jo'::n Edmon
son, of Green; WiUiam O. Butler, of Gallatin; .^aron Hart and Benjamin Shack-
lett, of Hardin; William K. Wall and John Givens, of Harrison; David White and
Charles H. Allen, of Hemy; Forlunatus F. Dulany. of Union and Henderson; Wm,
R. Weir, of Hopkins; Richard Barbour and James Hunter, of Jefferson; Willianj.
Walker, of Jessamine; Joseph Parsons, of Knox; Benjamin Duncan and Samuel
Shackleford, of Lincoln; Boanerges Roberts and Presley N. O'Bannon, of Logan,
Christopher Haynes, of Living'ston,- Thomas Marshall, of Lewis; John Adair and
John B. Thompson, of Mercer; Samuel South, John Tribble, and Archibald
Woods, of Madison; Duvall Payne and Walker Reed, of Mason; Moses \* ickliffe,
of Muhlenburg; Eli Shortridge and John Jamison, of .Montgomery; John Rowan,
Samuel T. Beall, and Henry Cotton, Nelson; Thomas Metcalfe, Nicholas; James
Johnson, of Ohio; John DoUerhide and Joseph Porter, Pulaski; William Clark, af
Pendleton; William Smith, ofRockcastle; John T. Johnson and Garrett Wall, of
Scott; John Logan, George B. Knight, and Berryman P. Dupuy, of Shelby; Wil
lis Field and William S. Hunter, of Woodford; Solomon P.Sharp and Cornelius
Turner, of Warren; Walter Emmerson, of Wayne; Fleming Robinson, H. H.
Bayne, and Richard Cocke, of Washington.
And the following members constituted the Senate of Kentucky ;
Anthony Bartlett, of Henry county; Harman Bowmar, of Woodford; Jesss
Bledsoe, of Bourbon; Wm. T. Barry, of Fayette; John L. Bridges, of Mercer;
Samuel Churchill, of Jefferson and Bullitt; James Crutcher, of Hardin; Joseph
Eve, of Knox and Clay; John Faulkner, of Garrard; Dickson Given, Livingston
and Caldwell; Thomas G. Harrison, of Washington; James Hillyer, Henderson,
Ohio, and Daviess; John Griffin. Pulaski and Casey; Wm. Hardin, of Breckin
ridge, Grayson, and Butler; Francis Johnson, of Warren and Allen; Humphrey
Jones, of Madison; James Mason, of Montgomery and Estill; Wm. Owens, of
Green and Adair; James Parks, of Fleming and' Nicholas; Josephus Perrin, of
Harrison and Bracken; James Simrall, of Shelby; Ben. South, of Bath, Floyd,
and Greenup; Richard Southgate, of Campbell, Pendleton, and Boone; Richard
Taylor, of Franklin and Gallatin; Hubbard Taylor, of Clarke; David Thompson.
of Scott; Joseph Welch, of Lincoln; Martin H.'WicklifTe, of Nelson; Wm. Wood,"
of Cumberland and Wayne; Wm. Worthington, of Muhlenburg, Hopkins and
Union; Joel Yancy, of Barren.
On the 2d of December, 1817, upon the moiion of Mr. Reed, a select commit
tee, consisting of Messrs. Baylor, Bibb, bharp. White, J. T.Johnson, Fletcher,
Reed and Shortridge, was appointed to prepare a bill for a new eleclion-'on the 4th
the committee reported a bill providing for an election of a Governor to supply the
vacancy occasioned by Madison's death, and uh„ for an election of a Lieutenant

18]
'Govtrmorjor the tame fractional terih; which bill passed the house on the 15th of
the same month by the following vote:
Yeas — Messrs. Speaker, (Breckinridge), Allen, Anderson, Barbour, Barr, Bay
lor, Bibb, Butler, Cassedy, Chew, Clark, Davis, Dawson, Donaldson, Dulany,
W. Emmerson, Field, Fleming, Fletcher, Gholson, Givens, Glenn, Haynes, Hiok-
-man, Hopson, J. Hunter, W. S. Hunter, Jamison, C. Johnson, J. Johnson, Par
sons, Patton, Payne, J. Porter, Reed, Roberts. Sanford, Sharp, Shortridge, South,
Todd, Tribble, Trigg, Turner, W. Wall.G. Wall, Ward, White, and Weir— 66.
Nays — Messrs. Adair, Barret, Bales, Bayne, Beall. Cocke, Cofl'ee, Cotton, Cun
ningham, Duncan, J. Emmerson, Gaither, Hart, Jewell, Knight, Letcher, Mar
shall, .Mercer, J. Porter, Robinson, Rowan, Shacklett, Shackelford, Spilman, Smith,
Thompson, Underwood, C Walker, Wickhffe, and Woods — 30.
But, on the 18lh of the same month, the Senate refused to order the bill to bo
¦read a second lime, and thus defeated it by the following vote.
On the question, shall the bill be read a second time? —
Yeas — Messrs. Barry, Bledsoe, Bowmar, Chambers, Given, Johnson, Parks,
Perrin, South, Southgate, H. Taylor, Thompson, Wood, and Young — 14.
Nays — Messrs. Speaker, (R. Ewing,) Bridges, Crutcher. Eve, Faulkner, Grif
fin, Hardin, Harrison, Hillyer, Jones, Owens, Simrall, R. Taylor, Welch, Wicl>-
liffe, Wilson, and Worthington — 18,
When the canvass for 1817 began, it was believed tlatsuch a torrent of popu
lar sentiment for a new election had been gotten up as to leave scarcely a hope
of arresting its progress or diverting its course. But the leading men who be
lieved that the constitution would be violated and Slaughter's rights outraged by
a new election, determined to resist it to the utmost. It became an all-absorbing
topic, and no subject ever produced more intense or pervading excitement in Ken
tucky. At the request of some friends at Frankfort, Mr. Robertson, then just
elected to Congress from the Garrard district, before he was 26 years old, wrote
the following constitutional argument, signed "A Kentuckian." Those friends,
though it was written on the spur of the occasion, thought fit to publish it in a
pamphlet, entitled, " The GonstiLtUionalist, by a Kentuckian," and circulated it
extensively through the State. It was, at the time, supposed to have had a very
great influence on the public mind, and to have contributed, more than any other
means, to that recoil in the popular sentiment which resulted in an abandonment
of the project of a new election by act of assembly. A review of the scenes of that
year would be interesting and rather profitable to all w&o'desire to understand the
history of Kentucky measures and men.

TO THE PEOPLE OF KENTUCKY.

An humble and obscure fellow-citizen feels !
it his duty to address you on a subject which !
has become interesting to us all; and one
which, as men possessing personal rights, and
&s citizens duly appreciating our civil and po
litical privileges, it is equally our duty to in
vestigate impartially and deliberately, and our
interest to decide correctly and independently.
Since the universally lamented death of our
late venerable Chief Magistrate, the question
has frequently presented itself to every think
ing mind, "How and by whom shall this chasm
in our state government, which we so deeply
deplore, be filled?" In the solution of this
<juestion it will, on a thorough and impaitial
investigation, be found there is no intrinsic dif
ficulty. And had you turned to your Consti
tution, and read it, and expounded it by your
own common sense for yourselves, disregard
ing the pathetic appeals that have been so
dexterously made to your feelings and preju
dices, there would have been no contrariety of
opinion on this much abused and agitated
subject; and instead of the commotion which
now pervades this country, and not only de
grades us in the estimaton of our astonished
neighbors, but threatens to ruin our dearest
rights, there would have been perfect repose,
harmony and content. But some of those who
ought to have been among your best friends
have availed themselves of the confidence you
had reposed in their intelligence and political
integrity — not to give you sound and whole
some counsel, nor to enlighten your under
standings, nor to lead you to the truth — but to
distort and misinterpret the Constitution, to
seduce you of your judgment, and drive you
into error, anarchy and confusion. Instead of
addressing your reason, men from whom
we should have expected better and wiser
things have vociferously appealed to your
feelings — instead of legitimate argument, they
have resorted to noisy declamatiori — instead
of ever mentioning our own constitution, they
take us with a gigantic stride across the
Atlantic to Greece, and Rome, and Africa, to
speculate on the ruins of Athens, Rome, and
-Carthage. Instead of showing us what our
constitution is, they assay all their ingenuity
to show us what it might have been; and in
stead of telling us what artificial rights we
now enjoy, since the organization of our polit
ical machine, they discant in swelling strains
about our natural and primitive sovereignty
and equality, which every man in Kentucky
understands, and no one ever did or will deny.
It is thus that a question which, of itself, would
never have created any difficulty or excited
any leal, has become an electioneering hobby.

and a constant theme of inflammatory declam
ation. It has been so entirelv metamorphosed
by distortion of features, deceitful attitudes,
and tinsel dress, that many honest men, not
well acquainted with it, and not being con-
noiseurs in political physiognomy, have been
grossly deceived in its character. Hence, °a
uou-descript Drama has been set on foot in
this country, by a few men, for what purpose
we say not, which, although, in the first
scenes, it so much excited the derision of the
auditory, that it was deemed a Farce, and has
only yet so far changed its aspect as to induce
some to think it a harmless Comedy, will, it
is feared, unless the principal dramatis per
sons are hissed from the stage, end an afliict-
ing Tragedy. By those few men are meant the
noisy few who have been writing, speaking
and becoming candidates for office, to prove
that we must have a new election of governor
before the expiration of the deceased gover
nor's constitutional period of service, or in oth
er words, to prove that they are on the sidp of
the people against their constitution; in otiher
and still plainer words, against the people.
When this constitutional question was first
propounded, there was an unprecedented una
nimity in the State. It was almost universal
ly believed that there was no room for a ration
al doubt. We all believed that Gabriel
Slaughter would administer the government
under the constitution, until the expiration of
the tenn for which Madison was elected; but
as some circumstances occurred shortly after
the introduction of the Lieutenant Governor
into the gubernatorial chair, which provoked
nfew men, it is natural to suppose, (even if we
had not witnessed it) that they would put
their ingenuity on the Rack to torture from
it a device by which affairs might be
revolutionized and they might "triumph.
An election of another governor was the spu
rious offspring. Although there had been no
doubt on the constitution, and although Ihey
themselves could not doubt, they must have
hoped by sophistry, denunciation, and adula
tion to the people to induce others to believe
what they could not themselves believe — and
in trying to convince others they have, as is
very common, almost convinced themselves. —
Under false colors they have without a solita
ry argument, but merely by flatery, and prettj'
names induced many honest, unsuspecting men
to join them in their unholy crusade against
the constitution. And though the advocates
for a new election have been miraculously con
vinced without one solitary argument that will
stand scrutiny, it is feared many are fo firm
ly enlisted and have so far committed them-

to THE PEOPLE OF lENTHCKT.

selves that nothing short of mathematical
demonstration will convince them back again.
But, hopeless as the attempt may be, it is the
duty of every good citizen to make an effort;
more especially as he may thereby prevent the
further extension of this contagious doctrine,
and counteract the exertions of those who, en
couraged by an accidental accession to their
small corps, are stimulated to redouble their
efforts. That the attempt now lo elect a gov
ernor is a flagrant and dangerous violatidu of
the constitution is, I have no doubt, as conclu
sively dcmonstable from that instrument it
self, as any question can be, that is suscepti
ble of the remotest doubt. And to demon
strate to every man's conviction, vrho is not
under the influence of an inflexible predeter
mination, that it would be unconstitutional
to elect a governor before the expiration of the
term for which Hadison was elected, so that
there will be no ground left for a rational
doubt, is the only object of this essay.
To effectuate this object I only ask that you
will go with me to the constitution, and im
partially and attentively explore it, expelling
from your minds every extraneous argument,
and forgetting that you had ever thought on
the subject; and if the result be not a thor
ough and indubitable conviction that the con
stitution, not only does not authorize a new
election, but by every fair and permissable
construction interdicts the exercise of that
privilege, it must be because "A man convin
ced against his will, is of the same opinion
still." Preparatory to the investigation of this sub
ject, it should be premised that ours is a gov
ernment of laws and not of men. Our con
stitution is the basis; the laws we make in
unison with it are all mere superstucture.
The constitution is the great charter of our so
cial compact, defining and distributing the
functions of political sovereignty. It is an ar
ticle of agreement between the people and
their functionaries. The former have no more
right to alter or modify it, except in the way
therein provided, than the latter. And our
political rights are secure or insecure in pro
portion to the degree of our respect and ven
eration for t^iat sacred instrument. The sover
eignty therein transferred is not reclaimablc at
our mere whim or pleasure; when we wish to
know what lieTit or power we have thereby
delegated, and what retained, we must advert
to that instrument itself; and if there should bo
an apparent ambiguity in any clause or arti
cle, we should examine the whole attentively,
and give that construction which would make
all the different parts consistent; we should re
sort to the established rules of construction,
and whatever inference wo deduce by this
process, is a,s much an inviolable part of the
constitution as anything that the words may
literally and undeniably import. To prove
tliis by argument is useless; for it is an axiom,
the truth of which no man, who is capable of
investigation, can controvert..
Let it not be said that we have any more
right to viola*o or diRavriw that which may bo

called constructive than that which is lit'^ff^-
jThe one is as sacred and as obligatory as tia
! other, because it is as much the constitution.
! Both are equally constructive; the only difter-
ciice is the mode of construction. Why is it
I that we cheerfully and unhesitatingly submit
I to whatever the constitution expressly declares?
Is it because there is any affinity between the
sign and the thing signified; or language and
idea-^? K"o. Language is conventional; it is
an arbitrary association of sounds significant
by compact. Therefore when we hear a man
speak we affix to his expressions that meaning
which common usage and consent have given
to them. If one man make to another a prom
ise in language plain and simple, how is his
engagement to be understood and performed?
In the way in which common consent inter
prets his words; and although he might have
had a different meaning, he is nevertheless ab
solutely bound by that which his words inva
riably import. Is not this solely because it is
presumed that he intended to convey the same
ideas by his words that other men do? What
is even this then but construction? And what
is this obligation, other than constructive?
But when words are, in themselves, uncer
tain, how do we understand them? Why cer
tainly in no other sense than that in which we
presume they were intended to be understood.
To solve difficulties of this kind, common con
sent has established certain criteria, or rules of
construction to which we must resort, and by
which ambiguous expressions are to be inter
preted. These rules are coeval mith language
itself, and are founded in its constitution and
in common sense. This is then a part of the
same compact by which words are made sig
nificant. When an individual uses words
which are literally doubtful, ¦ it is to be pre
sumed he intended to convey by them that
meaning, which those universal and funda
mental rules established by general consent
give to them. This is construction; but no
more so than giving to words that meaning
which common consent says they literally im
port, is construction. The meaning in both
cases is founded on and deduced from com
pact; and the only difference between them is,
as before remarked, the process by which it is
ascertained. If a man make a contract, the
literal meaning of which is doubtful, is it not
construed by the rules we have mentioned?
And is he not as much bound by this inleipire-
tation, as if there had been no necessity to re
sort to them? Certainly he is.
Apply these preliminary remarks to our
constitution. Ask yourselves if there be any
real ambiguity in that instrument in regard to
the question about to be discussed. If you
should think there is, only ask yourselves, to
what inference the proper and universal rules
of construction will certainly and inevitably
lead. If they will authorize 'the belief that the
constitution does not deprive you of the right
to elect a new governor under existing circum
stances, it will bo admitted that you have the
power to exercise it, if you choose. But on the
contrary, ifthey will convince you (of which I

TO THE PEOPLE OF KENTUCKY,

have no doubt) that you cannot consistently
with the constitution exercise this privilege, I
presume and hope that every hone.st and can- !
did man will frankly acknowledge that the '
right does not exist, and will, without a mur
mur, cheerfully submit to the present .state of
¦things, consoling himt^elf that it was ordained
hy his countiy, and decreed by one of the
^wisest, best, and freest constitutions extant in
thcworld. I shall endeavor to show you, as briefly as
the nature of the subject will permit, that there
is no ambiguity in the constitution in relation
to the present question. But, if there should
be, when it is attentively examined and cor
rectly expounded, no dispassionate man, in his
senses, and honestly in pursuit of truth, can
-possibly doubt.
In the investigation of this subject I shall
not follow the zigzag and declamatory course
that the advocates of a new election have pur-
sued-T^but will take the cons^iiujion for my com
pass, and reason for my square. I shall not,
as they have done, endeavor insidiously to as
sail your feelings and alarm your fears, but
shall openly appeal to your judgments, with
no other weapons than reason and the consti
tution. All I shall ask of those advocates, is
to make the following admissions : 1st. That
we have a constitution. 2d. That it is not
right to violate it. 3d. That, that and that
alone should control us, and determine for us
the present question." And 4lh, That if it
should be doubtful we should examine the
whole of it, and give it such a ' construction
as will make all the parts harmonize, and give
them all effect.
And all I shall ask of y.ou is your attention,
your impartiality and the honest exercise of
your rational faculties. This is all the armor
I want; with these weapons I fear not the re
sult. At the threshhold, I will concede to the
new election men all that they have based
their arguments on, and which no good man
ever denied — which is that-we, the people, are
the only legitimate source of all political pow
er; and that our government was instituted by
us and for our peace and happiness — 'but with
this appendage or qualification— wo are now
sovereign, only so far as wo are not circum
scribed or restrained by our own act and con
sent. For in all well organized societies, it
has been discovered to be expedient that the
people, in order to secure their civil rights in
violate, should, by one great primeval act of
united sovereignty, establish some fundamen
tal principles, which even they themselves
could not by mere legislation control. This
is their constitution. We have followed their
example. Let it not be forgotten that we have
a COlSrSTITUTION— one which it is our du
ty and our best interest ever to revere and de
fend; and one, even the confines of which it
would be worse than sacrilege to invade ; for it
is the bulwark of our dearest rights religious,
civil, and political.
The momentous question now rccurr — What
does this instrument pronounce on the subject
now agitating this country? I think its lan

guage is plain and decisive. It may bo found
in the following clauses:
Aiiticle3, Seo. 1. "The supreme executive
power of the commonwealth shall be vc-,ted in
a chief magiNlrale, who shall be styled tho
governor of the couimon-wealth of Kentucky."
Sec. 4. Tho governor shall be elected for tho
term of four years by the citizens entitled to
suffrage, at the times and places whore they
shall respectively vote for representatives.
The person having the highest number of votes
shall be governor; but if two or more shall bo
equal and highest in votes, the election shall
be determined by lot, in such manner as tho
legislature may direct."
Art. 3, Sec. 16. "A lieutenant-governor
shall be chosen at every election for a gover
nor, in the same manner, continue in office for
the same time, and possess the same qualifi
cations. In voting for governor and lieuten
ant-governor, the electors shall distinguish
whom they vote for as governor, and whom as
lieutenant-governor. "Sec. 17. He shall, by virtue of his office,
be speaker of the senate, have a right, when in
committee of the whole, to debate and vote on
all subjects; and when the senate are equally
divided, to give the casting vote.
"Sec. 18. In case of the impeachment of the
governor, his removal from office, death, refu
sal to qualify, resignation, or absence from the
state, the lieutenant-governor shall exercise all
the power and authority appertaining to tho
office of governor, until another be duly quali
fied, or the governor, absent or impeached,
shall return or be acquitted."
"Sec. 24. A secretary shall be appointed and
commissioned during the tenn for which the
governor shall have been elected, if he shall so
long behave himself well."
"Art. 2, Sec. 30. The general assembly
shall regul.ite by law, by whom, and in what
manner writs of election shall be issued to fill
the vacancies which may happen in either
branch thereof.."
"Art. 6, Sec. 3. Every person shall be dis
qualified from serving as a governor, lieuten
ant-governor, senator, or representative, for
tho term for which he shall have been elected,
who shall be convicted of having given or of
fered any bribe or treat, to procure his elec
tion." "Schedule, Sec. 5. In order that no incon
venience may arise from the change made by
this constitution, in the time of holding the
general election, it is hereby ordained, that the
first election for governor, lieutenant-governor
and members of the general assembly, shall
commence on the first Monday in May in the
year eighteen hundred; The persons then
elected shall continue in office during the sev
eral terms of service prescribed by this consti
tution, and until the next general election,
which shall bo held after their said terms
shall have respectively expired."
The foregoing are faithful extract.', from our
present constitution, of all that can operate on
our question. They contain every senterce,
every word and every mark of punctuation.

TO THE Pj;OPLK OF KB.NTCCKT,

that cah affect the subject, condensed in one
mass, that you may see the whole at one view
without any difficulty or false coloring. This
is the text. The commentary shall be candid,
and I trust satisfactory.
I would ask you, in the first place, if you
had never thought on, or heard of the subject
before, could you see anything in these clauses
that requires explanation? Could you see any
incongruity or any mystery in the simple ex
pressions which they contain. iS'^o, you never
would entertain a doubt; if you have a doubt,
it is not derived from the constitution. Hu
man language could not bo plainer. No sub
ject could require more perspicuity than char
acterizes every part of the foregoing extracts.
You at once see that there is not one word said
about a new election to fill a vacancy which
might occur in the office of governor, but that
many provisions are made to supercede the ne
cessity of it by filling the vacancy without a
sjiecial election. Consequently there can be
no doubt that the constitution gives us no au
thority to elect another governor at this time or
under existing circumstances.
Although this -n-ill be acknowledged by
even those who are as skeptical as Dr. Douty:
Yet they will insist that it is not necessary
that the constitution should ^i?;e us the privil
ege, bec.iuse we ])ossess it inherently, and
have a right to do this, as well as everything
else we please, unless prohibited by the consti
tution. This I deny, and could refute by
showing the purposes and nature of our gov
ernment, and adducing examples in which, al
though there is no express constitutional inhi-
bation, still, there can be no legislative right.
But as I have no doubt of convincing every
dispassionate man, without resorting to this
kind of argument which would bo conclusive
in this kind of case, I shall not consume time
by endeavoring to prove that in the case under
consideration the constitution must give the
right or it cannot be exercised, but wave this
question. But if I should admit, for argument
sake, that we have a right to elect a new gov
ernor, unless restrained by the constitution, I
shall now undertake to prove clearly that it
would be palpably inconsistent with that in
strument under existing circumstances.
The only question then for me to discuss,
and for you to decide, is whether the alledged
right to t'lect a governor before the expiration
of the term for which Madison was elected, is
interdicted by the constitution, or is inconsis
tent with any of its provisions. If I show that
it is, I shall have attained my object. This
proposition is, from the constitution, almost
self-evident. It is very clear from its whole
tenor that the convention never intended that
an accidental vacancy, in the executive, should
be filled by popular election.
You find from the foregoing extracts that the
governor is to bo elected by the people entitled
to suffi-age, at certain times, for the term of
four years, and th.ilhft shall possess certain Cnv-
merated qualifications, have eertain defined
powers and prerogatives, and receive ,n, fixed
salary. You may find al-o Ih.at the same

parts of the constitution amendatory ol our first
constitution in that respect, provide for the elec
tion of a lieutenant givernor in the same man
ner, at the same time,' to possess all the same
qualifications;— bnt who is not to enjoy the.
same powers and privileges nor receive the
same compensation, except on the occurrence
of certain contingencies; and who then becomes,
by the constitution, invested with all the same
power and authority, and receives the same
pay that the governor elect enjoys while in the
administration of the government. _
Ask yourselves candidly what is the plain
and only sensible meaning of these provisions?
Why is a governor to be elected for four years?
The reasons are obvious, and are founded in
long and instructive experience and the wisest
policy. But the members of the convention
did not forget that the man whom we might
elect as our chief executive officer, would be
mortal, and liable to all the casualties incident
U> humanity. That they ruminated extensive
ly and profoundly on this subject is evident
from the ample and detailed provisions they
have made to obviate any difficulty and pre-
ent any possible inconvenience. Examine
those provisions attentively; observe the fore
cast, the exactness, the nice precaution of
those who made them. They have provided
-gainst an interregnum, in the event of almost
any possible contingency. Have they said one
word, among all those provisions, about a spe
cial election of a go\*rnor? Certainly not.
Is it reconcilable with any rational or author
ized construOtion to suppose that they intend
ed one should be elected, at any other time or
in any other manner than those prescribed by
the constitution? If it is, then you must say
that those men, some of whom were admired as
men of stupendous intellects, and were illustri
ous ornaments of their state, did not under
stand themselves. For if they intended that
we should have the right to elect a new gover
nor under circumstances like the present, they
have certainly acted in a manner that is utterly-
inexplicable; made a great many reduntant
provisions in the constitution which could on
ly embarrass and mislead, and have betrayed
as much stupidity and folly as could have
been exhibited by much weaker men, who
had no design in what they said. But such an
imputation would be impious ingratitude to
those, to whom we should forever be most
grateful. It would be a most wicked and im-'
potent thrust at the consecrated chai-acter of
THAT MAN, whose collossal mind and lu
minous pencil ai'c conspicuous in every clause
of the sacred instrument which he drew, and
whose memory is embalmed in the hearts of
his contrymen.
The members of tho convention thought (and
correctly too) that they had left no room for
doubt. They had said all and done all they
could, or that w.as necessary, if they intended
that, there should be no new election; if they
did intend that there should bo no election, what
more or else would they have said or done?
Nothing, But if they had intended that we
should elect before the expiration of the four

TO TUB PEOPLE OP KENTUCKY.

years, can wo, as honest, candid, intelligent
men, say or believe that they would have used
the language they have, and no fnoie? If they
had designed such an abst>rdity, would they
have made all the provisions they have to fill
any vacancy that might happen? And would
they not have made others quite different and
more plain? They have endeavored to be as
particular and perspicuous as possible. But
if they intended a new election, have they been
perspicuous or even intelligible, or have they
not used a language that imports a memiing
different from, and inconsistent with that in
tention? But explore the whole of the consti
tution, and observe how consistent, how plain,
how cautious and particular they have been in
every other pai-t. For fear of doubt or incon
venience, they have provided expressly for the
election of members to fill both branches of the
legislative department, when any vacancy
should occur in either. Why did they not in
clude the executive? The reason is obvious;
they intended to exclude him.
When ^ey were so circumspect as to deem
it proper to insert a special clause authorizing
the legislature to pass a law declaring how and
by whom writs of election should issue to fill
vacancies that .might happen in either branch
of the legislature, can you give any good rea
son why they did not insert a similar clause in
regard to the executive department; was it not
equally proper and necessary? Their having
done it in the first case shows that they thought
it was necessary; if they had intended it in tho
latter, would they not have used the same pre
caution? Now, whether this special clause
were necessary to give the legislature the
right, or not, is totally immaterial. The mem
bers of the convention have inserted it in one
case and omitted it in the other, and the very
circumstance of their having used it in the one,
when perhaps it was not absolutely necessary,
shows unanswerably that, in the other not em
braced by it, they intended that the right
should not be exercised.
But, if this argument neecled any support, it
is sti-ongly fortified by another consideration.
In the cases above mentioned, in which the
constitution has made a special provision for
ail election to fill vacancies, there was not as
much necessity for such a provision, as there
certainly would be for one for a now election to
fill vocancies in the executive department.
For ih the fomier, vacancies that might happen
were not otherwise provided for; but in tho lat
ter they are, most carefully and abundantly.
The advocates for a now election say that the
legislature have the right to do whatever the
constitution does not prohibit. As wo are
passing, let us again admit this. To what
does it lead? Why certainly to a very strong
confirmation of the reasoning I have just de
duced from the special clause in one part of the
constitution. For it will be acknowledged
that there is no clause or expression in the con
stitution which inhibits the passage of a law
authorizing an election to fill vacancies that
might happen in either branch of the legisla
ture, or with which such a lav; would be incon

sisient, and it will also bo acknowledged that
no provision to fill such vacancies, otherwise
than by election, is to be found in the constitu
tion. The new election men say that, for
these reasons the legislature would have had
the right to pass any law they might think ex
pedient to fill these vacancies without the au
thorization of the convention men. These lat
ter thought differently; but we have admitted,
for argument, that they thought so too — well,
if they thought so too, why did they insert this
special clause? Every ruan will now be able
to answer. It was because they feared that
others might have serious doubts on this sub
ject; that there might be a difference of con
struction, which it was their duty to prevent.
They have therefore inserted a special clause,
knowing it could do no harm, and might do
good by precluding the possibility of miscon
ception. This clause is therefore not mere su
pererogation. Well, if they thought it was
necessary, in order to prevent any doubt or in
convenience in the cases which it embraces,
must they not have known it was much more
necessary in the executive department? Cer
tainly; because for the latter other provisions
are made, and some of them, as I will presently
show, inconsistent with a special election; and
the very insertion of these would induce any
man to believe that such election was intend
ed to be dispensed with for wise purposes. I
ask then, again, why were not executive va
cancies included in the special clause author
izing a special election? Or why did not the
people say, in the 30th clause of the 2d article,
• 'The Legislature shall direct by law how writs
of election may issue to fill vacancies that
might happen in either branch thereof, or in
the EXECCTTIVE?" It was because the con
vention did not intend that there should be
such election. They thought that the insertion
of the clause in one case and the omission of it
in the other, in which there was more necessity for
it if it had been intended, the ample provis
ions which they had othervfise made to super
cede the necessity of an election, and the incon
sistency of some of them with such election,
constituted as much as they ought to do or
could do, to prevent any misconstruction.
You will think so too.
Bui. if it were possible, from the foregoing
considerations, to doubt whether the conven
tion intended a new election or not; to remove
these doubts look at the provisions they have
made to render it unnecessary, by substituting
other officers, in case of the death, removal,
&c. (te. of the governor elect. And how can
you then doubt? If the convention could pos
sibly have intended that we might elect a suc
cessor before tho expiration of the constitution
al term, why and for what purpose did they
create a new secondary officer unknown to the
old constitution? Why did they create a lieu
tenant governor? For if they intended an
election for governor to be held at the next an
nual election succeeding the death or removal
of the elect governor, the lieutenant governor
would be a supernumerary; because in that
event there would be no ncces'-itv for siich an

TO THE PEOPLE OF KENTUCKY.

officer. For the provision in the old constitu
tion was amply sufficient, which declared that
in the event of the governor's death, ifec, the
.speaker of the senate should administer the
government until another governor should be
qualified. Why the amendment of the old
constitution in this respect? In creation there
is always some design. What did the conven
tion design when they amended the old con
stitution and created a lieutenant-governor?
Was it merely that he might administer the
government a few days, or weeks, or months,
instead of the speaker of the senate, when in
fact, for every other purpose he is only the
speaker? It is impossible, because there was
no necessity, no motive for it. Tho provi-^ions
in the old constitution were equally as good,
and therefore would not have been so radically
changed without some adequate object. Nor
can it be presumed that the lieutenant gover
nor was created, merely to act occasionally as
speaker of the senate when they should be in
session, and have no office in vacation; be
cause there was no necessity /or it and no pro
priety in it. He would not do better than the
speaker who might be chosen by the senators
themselves from their own body, and indeed a
recun'ence to exi^erience will convince us that
the speaker chosen by the senators has, with a
very few exceptions, discharged the functions
of the chair mith more dignity and ability than
the lieutenant governors elected hj the people.
But why should the convention impose upon
the senate a presiding officer who would not
be their choice? Why not permit thein to elect
whomsoever they might choose, for that pur
pose? And why give to one particular county
in some instances a double representation in
the senate? And why put us to the trouble and
inconvenience of being electioneered with and
of voting/or a man merely to do that which the
speaker of the old constitution could do as
well, and in nineteen cases out of twenty a great
deal better? Why should this man possess
any qualifications more than other senators
must have before they are eligible to a seat in
the senate, if he is created merely for a speaker?
But more particularly, why is it necessaiy that
he should possess precisely the same qualifica
tions with the governor, be elected at the same
time, and continue in office for the same time?
I believt; you cannot answer these interrogato
ries satisfactorily, and still think that you can
elect a governor before the expiration of Madi
son's term of service. You must acknowledge
that such an answer would be inconsistent
with a sound construction of the constitution.
It is very obvious that the convention created the
lieutenant governor to be the successor of the
governor in case he should die or ixsign, (fee,
for the remainder of his term; and that, on
the happening of any of those contingencies
mentioned, he should become the governor, and
have all the power, prerogatives," and emolu
ments appertaining lo the office. The moti\e
that induced the convention to designate tho
lieutenant governor lo succeed tho g<n'en]orfor
tho residue of his term, was a benevolent one.
It Vr'as, thai in ease we should lo--e our govern

or, we might have a successor who w^as our
next choice, without the inconvenience and
popular zeal and commotion generally pro
duced by a general and very important elec
tion. And they have abundantly shown us,
that they did not approve the policy of electing
a governor oftener than once in four years. If
there should be any doubt of the truth of the
foregoing positions, it will be entirely removed
by reasons and proofs which shall be given
presently, in their proper place.
But suppose the foregoing view of the inten
tion and design of those wise men who adopt
ed the constitution, collectable convincingly
from the plain provisions which they have
made, should leave any room for a reasonable
and honest difference of opinion, the impossi
bility of electing a governor before the quad
rennial election prescribed by the constitution,
without violating some of the plainest and
wisest provisions of that instrument, would in
terpose an insuperable obstacle and hush every
serious doubt. How will you electanew govern
or luider existing circumstances? The consti
tutional rights and duties of the present incum
bent constitute a barrier you cannot, you dare
not surmount. If you could really believe
from what has already been said that you have
the right, when yoii come to the clauses which
speak of the rights and duties of lieutenant
governor, how and when he shall be elected,
the duration of his office, <fcc., where wiU you
find ground for hesitation? Where one solita
ry loop on which to hang a sluggish doubt?
"A lieutenant governor shall be elected at every
election of governor — in the same manner, con
tinue in office the same time." Now if you
proceed to elect a new governor, what will you
do with the lieutenant governor? You have
no right to remote him against his will, ex
cept by impeachment. But if you elect a gov
ernor, the constitution is imperious that you
shall elect a lieutenant governor. If you do
so you thereby remove blaughter; this you are
compelled to do, or not elect at all. What
then will you do? How extiicate yourselves
front this dilemma? You hadbeen told very dog
matically by some of the new election men,
since the commencement of this popular
ity campaign, that the expressions "at every
election of governor a lieutenant governor shall
be elected," only alluded to ordinaiy quadren
nial elections spoken of in the constitution.
Of this they said they had no doubt. Upon
this palpable error they built all their argu
ments, by which many men pretended to be
convinced. And they .admitted that unless
this, their novel absurdity, was true, you could
not elect a ncAV governor to fill the remainder
of Madison's term. ilARK THIS, I earnest-
ly beseech you; for it was the only foundation
of their opinions and hopes. Look at the fal
lacy and palpable absurdity of this forced
construction. Only pursue the course to
which it points, aiid seo where you will end
your journey. Elect a governor .at the next
August election, (for if you have the right at
all, it must be exercised at some annual elec-
.tion) for the remainder of Madison's term,

TO THE PEOPLE OF KENTUCKY.

u

without a lieutenant governor, what will be the
consequences?' Why, a palpable violation of
the constitution, which declares he shall be
elected for four years. Well, supjiose you
elect him for four years, what then? You
have a governor in office for four years, and a
lieutenant governor in office for" only three
years. Ancl at tho expiration of these three
years what will you do for a lieutenant gover
nor? You must elect one or have none. The
latter you would not tolerate, the former you
could not constitutionally do; because he must
be fleeted when you elect your govertior, and
having elected your governor for four years,
you cannot elect another before the expiration
of that time. But if you could, you would in
volve yourselves in this absurdity: the gover
nor you would elect would not be in office for
upwards of a year after his election, and the
lieutenant governor whom you elected with
him would go into office instantly. But sup-
fose you could elect your lieutenant governor
efore your governor or your governor before
your lieutenant governor, in what a labyrinth of
difficulties would you, even if it were permis
sible, involve yourselves? You would never
thereafter be able to elect a governor and lieu
tenant governor at the same time, which the
constitution expressly requires. These consid
erations will prove unanswerably that a lieu
tenant governor must be elected whenever a
governor shall be elected as the constitution
directs. But if it could possibly be true that the con
vention only alluded to the quadrennial elec
tions, by the requisition aforesaid, then it is
equally true that they could not possibly have
intended that there should bo any other elec
tion at any other time nor in any other man
ner. The advocates of a new election, finding
that this sophism was too barefaced, have at
last abandoned it, and taken refuge on a posi
tion equally indefensible, which, with their
united strength, they have endeavored to forti
fy by arguments equally fallacious. Ancl
here pennit me to pause, not to express my
own surprise, (for to me it is no strange matter)
but to invite you to look at the facility with
which some men change the most important
and responsible opinions. And to ask you, if
they were wrong before, (which they acknowl
edge) is it not more probable they are wrong
now? rf you had believed them then, they
confess you would have erred; if you believe
them now I have no doubt yoti will equally
err. This is the predicament of the newspa
per advocates ef a new election. They admit
that the reasons which once convinced them,
and by which they endeavored most pertina
ciously to convince others, were absurd, but
still persist that their opinion, founded on
those absurdities, is correct. They cetainly
must have been encouraged by the little anec
dote- of a judge and his lawyer. The latter
made a motion to the former, and after a very
long, elaborate, and, as he thought, able argu
ment, was told by the judge that his reasons
and arguments were absurd and ridiculous.

but still he was constrained to decido in his
favor for reason.-; that he, the lawyer, had nev
er seen nor touched.
But notice, I beg you, the corner stone of
the newly conceived argument. They admit
that you must elect a lieutenant governor at
every election of governor, and that you must
elect a governor for four years, but contend
that it would be no violation of the constitu
tion to supersede Slaughter before the expira
tion of his four years by the election of another
lieutenant governor. This is now their strong
hold, behind which they have entrenched
themselves. If this be untenable they must
surrender. Although they have said a great
deal on the subject, you will bear in mind that
it is all on the truth of the foregoing proposi
tion; that is their sandy foundation; all the rest
is but embroidered superstructure.
Now it does seem to me that, if there ever
existed an absurdity that exposes itself, this is
one. If this be the correct interpretation
of the constitution, why was it never before
discovered? If it be so plain and obvious, why
never before perceived? And why do not the
unassisted optics of common men perceive it?
I venture to say that no man in Kentucky
doubted, when Slaughter was elected, that he
was in office for four years, and I fear not tp
say unhesitatingly that no man who had never
heard of this new construction could read the
constitution impartially, and doubt that he
was elected for four years. The constitution
declares that a governor shall be elected for the
term of four years, and that at every election
of governor a lieutenant governor shall be
elected, who shall possess the same qualifica-
tions and continue in office the same time.
What does the expression, "continue in office
the same time," mean? Would you not say
four years? Is it to be presumed that the wise
men who adopted the constitution, would cre
ate so important an office as lieutenant gover
nor without defining the term during which
he should serve? Can you think that the du
ration of the second office in the countiy would
be uncertain? This would be sporting with
common sense, and insulting the understand
ing of those who framed the constitution.
You are told that the lieutenant governor is
the incident, the mere automaton of the gover
nor, and goes out of office whenever his princi
pal, his master may resign, die, or be dis
missed. This is tantamount to saying that the
governor can dismiss the lieutenant governor
whenever ho may choose to do so. For I pre
sume he can resign when he may think fit.
Do you believe any honorable man would ac
cept an office which he must hold by so preca
rious and servile a tenure? It would be a
degradation. Do you 'believe that the framers
of the constitution ever intended that, if the
governor should be dismissed from office for
crime or misdemeanor, the lieutenant gover
nor should share the expulsion or disgrace?
Did they intend that he should forfeit his of
fice, which his merit had earned, merely be
cause an infamous wretch, over whose conduct
ho had no control and for which he v,'a3 not

fO THB PEOPLE OF KENTUCKY.

responsible, might be disgracefully forced to
surrender his? Why should he, more than
any other member of the senate, or of the gov
ernment, lose his office on account of the re
signation, death, refusal to qualify or dismissal
from office of the governor? The convention
never intended it. The constitution does not
require it, nor even permit it. It means only
what it plainly says, that the lieutenant gover
nor shall he elected at the same time and con
tinue in office the same time that the governor
is elected to continue — or in other words, it
means that he sAaZZ have a right to continue in
office as long as the governor AfflS a right to con
tinue in office. This is the proper transposi
tion — this is filling up the ellipsis. For the
expres^ons, "same qualifications and same
time" must refer to some antecedent expres
sions. They certainly do refer to those
previous parts of the constitution, which de
fine the qualifications of the governor and the
duration of his office — otherwise they would
mean nothing. Then the "same qualifications"
which the lieutenant governor is required to
possess, mean the very same that the constitu
tion declares the governor shall possess — ^that
is, that he shall he 35 years of age, &c., and
the "same time as," certainly refers to the time
the constitution declares that the governor
shall continue in office, that is four years. For
if the word same, when annexed to qualifica
tions, refer you to the constitutional qualifica
tions of the governor, it certainly means, when
annexed to time, in the same clause, the gover
nor's constitutional time, or period of service.
Any other construction would confound all the
rules of the English language.
But you are told you must give a most rigid
and literal construction to this expression.
This is not the same language which the same
gentlemen use on other parts of the constitu
tion. I care not how punctilious you are in ad
herence to the letter. The letter imports noth
ing more nor less than that the lieutenant gover
nor shall have the right to continue in office as
long as the governor has a right to continue
in office, and no longer. If the expression,
"shall continue in office the same time," mean
what some men absurdly say it does, that he
shall go out of office whenever the governor
may happen to die, or choose to resign, or
should be dismissed, whether he is willing or
not, then certainly it means, by the same con
struction and for tho same reason, that he shall
be compelled to continue in office as long as
the governor may choose or may be permitted
to remain in his office. The rule must be re
ciprocal, and when the language is the same
you must give the same construction to either
alternative. But to what absurd anti-republi
can consequences would this lead? You will
invite a man to accept one of the first offices in
your power to bestow on distinguished merit,
and force him to ,continue in that office just as
long as another man with whom he has no con
nexion or privity, and whom, perhaps, he nev
er saw, may think proper to retain him. This
is not, cannot be the language of thatvifie and
republican con.stilutinu which is our sliield and

our boast. No; itis the language of those who
will, if you permit them, distort, mangle, and
mutilate that sacred charter, to subserve their
own personal purposes.
But ye who believe, or pretend to believe that
the lieutenant governor shall, willing or un
willing, dead or alive, continue in office as
long as the governor may happen to continue
in office, and no longer, be so good as to an
swer a few simple questions, which you should
have digested before you adopted or promulged
this opinion; — 1st. If the lieutenant governor
can only continue in office so long as the gov
ernor may happen to do so, suppose the gover
nor should refuse to qualify, andTthe lieutenant
governor had qualified, will you say the lieu
tenant governor never was in office? 2nd. Has
he not the right to qualify whenever he pleases,
after his term of service shall commence? 3d.
Is he not in office the moment he shall qualify?
These questions you are bound to answer af
firmatively. The consequence is, that tho
lieutenant governor is in office when the gover
nor is not; and further, if the governor should
happen to be prevented from qualifying,
by indisposition, absence or other causes,
one year, and then should be installed into of
fice, he would serve three years, and the lieuten
ant governor four; for he could' not be in office
before he is qualified, and tho lieutenant gover
nor was bound to administer the government
until he should qualify. They would not then
continue in office the same time, according to
your construction of tho expression. It is made
the duty of the lieutenant governor to adminis
ter the government, in case the governor should
refuse to qualify, until a governor shall be duly
qualified. It will ho admitted, then, that in
this cv ent he is in office, and that the governor
elect is not. Then he has a right to continue
in office, although the governor may be out of
office. How absurd does the doctrine now appear,
that Slaughter was out of office as soon as Madi
son died? But let us exhibit this monster in
one or two more attitudes. Suppose governor
Madison had refused to qualify as governor;
then he would not h.avc been in office — what
would have followed? The constitution tells
us — Slaughter would have had to qualify, and
take on him the administration of the govern
ment. The constitution says so. It declares
that in case the governor refuse to qualify, the
lieutenant governor shall administer t^e gov
ernment until a govern.or shall be duly quali
fied. Who is alluded to by the expression,
the lieutenant governor? Why cerlainly
Slaughter; it coulcl not have hcen Hickman,
(the old lieutenant governor) for he was out of
office, and if he had not beeuihe administration
would, by the constitution, have devolved on
Shelby, the former governor. Then the consti
tution declares that if Madison should refuse
to qualify. Slaughter should qualify, and as
sume the gubernatorial functions. How would
he have qualified? As governor? No; certainly
as lieutenant governor. But how could he qual
ify as lieutenant governor, when, by Madison's
death, he had forfeited all his right to his oflicc?

TO THE PEOPLE OF KENTUCKY.

13

But if there were no other expressions in the
constitution, the word coniiiijie would alone be
sufficient for my pui-pose. For it evidently im
plies that there had been a beginning — that the
thing to be continued must have begun. This
¦would show that the lieutenant governor had a
right to induction into office whether the gover
nor would or would not qualify. But this is re-
pugnantto the construction of the new election
men, for it would show that the lieutenant gov
ernor had a right to continue in office, although
the governor never was in office. But again,
how could the lieutenant governor. Slaughter,
administer the government for one month, after
Madison's death, if by that event he lost his office
of lieutenant governor? For if his office ex
pired when Madison expired, he was that mo
ment a private citizen, and no more lieutenant
governor than any one of you — but still wo hear
of his going on with the administration of the
government, not as a private citizen, but as lieu
tenant governor; and again, did Col. Slaughter,
when he was called to tho execution of the du
ties he is now discharging, take any new oath?
I presume not, because it was not necessary.
But if he had, by Madison's death, become a
mere private citizen, certainly it would have
been necessaiy that he should take the oath;
because, whenever his office expired, his oath
ceased to operate— ^he was certainly absolved
from any liability which could aftei'wards re
sult from that departed oath. For still more
light on this subject, I would ask you to look at
the 5th clause of the Schedule to the constitu
tion, which declai'es that the persons elected at
the first general election after the adoption of the
new constitution, "shall continue in office du
ring the several terms of service prescribed by
the constitution, and until the next general elec
tion, which shall be held after their said terms
shall have respectively expired " Look at the
whole of this clause, and if there could remain
a lurking doubt, I think it will vanish. Look
particularly at "(Aeir several tei'ms of service,"
and "until the next general election, after their
said terms shall have expired." You will not
fail to see that the lieutenant governor is in-
eluded with the other officers. He is then to
continue in office during his term of service, pre
scribed by the constitution. What do yon un
derstand, what did the convention understand,
what does every man understand by a term?
Net an uncertain, vague, indeiinite period, de
pendent on casuality, and of uncertain, un
known duration — ^but a fixed, definite pre
scribed period, of certain and known extent.
What, then, did the convention mean, by the
clause just quoted? Eveiy man will answer,
they meant, as regards the lieutenant gover
nor, by the expression, "term prescribed" — ^the
term of four years — otherwise they meant noth
ing, which cannot be justly imputed to them.
You can as little doubt that by the expression,
"the next general election," is meant the gen
eral election at the end of the respective terms
of the officers; that is, four years after the for
mer election mentioned in the constitution. It
could not me.an a special election; and an elec
tion of governor, under exi.-'fing circimstanees,

would certainly be a special election and for a
.special purpose.
But all argument on this subject would bo
useless, if you would attentively and impar
tially examine your constitution for yourselves.
Would it not be strange absurdity, to say tho
constitution intended that the -lieutenant gov
ernor would go out of office whenever the gov
ernor might die, resign, refuse to qualify, when
he was created expressly to succeed him in the gov
ernment, on the happening of any of these contin
gencies ? If it did intend it, why did it not
say so? But can it be believed that it would
create an officer for no other purpose, designate
him as the successor of the governor, make it
necessaiy that he should have the same quali
fications, be elected at the same time, by the
whole state, and declare that he should go out
of office at the very moment when it becomes
necessary for him to do that for which he was
elected, and which he is positively commis
sioned to do?
But to prove still more conclusively that the
lieutenant governor is elected for four years, I
would ask you to look at the 3d clause of the
6th article of the constitution, which I have al
ready shown you, and which declares that the
governor, lieutenant governor, &c., upon con
viction of bribeiy or treating, shall be disqual
ified from serving as governor or lieutenant
governor, &c., for the term for which they shall
have been elected. What is meant by tho
term, for which the lieutenant governor was
elected? Can you say that no definite time is
intended? This would be nonsense. The con
vention, in the use of those words, nieant what
many other parts of that constitution strongly
import, four years. What other time could
they have alluded to? When they say he
shall be ineligible for the term for which he
was elected, they say that he was elected for a
term; it must therefore mean that he was elect
ed for the 'term for which the governor j.was
elected, for if he were elected for only as long
as the governor might continue in office, he
would not be elected for any term. But the
clause to which wo have just refeiTcd de
nounces a certain penalty against the governor,
lieutenant governor, and others, for conviction
of bribery or treating to procure their offices;
no penal law can be enforced unless it be cer
tain and definite — no punishment, which is
indeterminate, can be inflicted. The conven
tion, then, intending to prevent corruption in
elections, have described the penalty which
they deemed most efficacious. But if they did
not intend that the lieutenant governor should
be ineligible in case of conviction, for the term
of four years, they did not intend that he
should be punished, although they say ex
pressly that he shall be. For how coulcl sen
tence be pronounced for no certain punish
ment? Did any man ever hear of such a con
demnation? But suppose both the governor
and lieutenant governor should be guilty of
bribery to procure their election, and after they
are both sworn into office they are impeached,
and tho governor convicted, lie then is ineligi
ble for the term for which ho was elected, that

14

TO THE PBOriB OF KEJjrCCKr,

is four years. But how then would you con
vict the lieutenant governor? The new election
men tell you he is out of office the very mo
ment the governor goes out of office, and that
consequently the time for which he was elected
has expired; you therefore could not try him,
nor if you could, would you have any right to
convict; because his term having already
expired by the expulsion of the governor, you
cannot disqualify him from serving as lieuten
ant governor, if he should be immediately
elected again. But suppose you should con
vict the lieutenant governor first, and the next
day convict the governor. By the doctrine of
the new election men, the governor would be
punished for four years, and the lieutenant
governor only one day, for the very same of
fence; and this would not be the worst, for on
the next day he would be eligible to the office
of lieutenant governor. How absurd and ri
diculous would this train of reasoning, if pur
sued, render the doctrine, that the lieutenant
governor is out of office the moment tho govern
or may happen to die, resign, or be dismissed?
But for the same crime the governor and sena
tors are disqualified for four years; and why
should not the lieutenant governor be punished
as severely? Every candid man, who will at
tentively examine the constitution, must see,
beyond a doubt, not only from this clause, but
every other upon which I have relied,
and from their whole scope and design, that
the lieutenant governor is elected for four
years. But some gentlemen, who acknowledge that
even after they had examined our constitution
over and over again, and heard all the speeches
in the legislature, they were satisfied we had
no right to elect anew governor, have, wonder
ful to be said, told us publicly, that the New
York coustitutiou has changed their opinion,
and convinced them that they were wrong! It
is strange, passing strange, that this argument,
which, when scrutinized, is most decisive
¦against a new election, should be wielded in
favor of it. And it is equally strange, that
Ke'ntuckians should rely on the legislature of
New York, or of any other state, for an exposi
tion of their constitution. Do not those men
who have used the decision of the New York
legislature, know that it is not authority?
They must admit it is not. Do they use it as
argument! Then, by a much more potent ar
gument, I would give them the decision of our
own legislature, not on the New York constitu
tion, but our own. But if the New York de
cision were authority, or even argument hero,
I would only ask you to examine the New
York and Kiaitucky constitutions impartially,
and if the comparison do not furnish you with
as ; strong an argument as you could require
against a new election, I am most egregiously
deceived. Constitution of New Yobk, Sec. 17th.~
"And this convention doth fori'ver, in the name
and by the authority of this state, ordain, de
termine, and declare, that the supreme execu
tive power and authority of this state shall be
vested in a governor; and Btal<<lly, once in

every three years, and as often as the seat of
government shall become vacant, a wise and dis-
crebt freeholder of this state .shall be, by balloti
elected governor by the freeholders of this
state, qualified, as before described, to elect
senators; which elections shall always be held
at the times and places of choosing represen
tatives in assembly for each respective county,
and that the person who hath the greatest
number of votes within the state, shall be
governor thereof."
You now perceive why the New York leg
islature authorizes a new election. You find
that the first clause expressly authorizes and
directs it. Well, it is said our's was tran
scribed from it — what is the consequence?
The New York convention intended that
there should be a new election, and deemed it
necessary to make an express provision in
their constitution authorizing it. If our con
vention intended that u* should have a new
election, why did they omit this special
clause in the New York constitution? Would
not the circumstance, that when copying this
part of the constitution of New York, they
excluded that expression which expressly au
thorized a new election, be irresistible proof
that our convention did not intend that we
should elect a governor under existing circum
stances? In regard to the lieutenant governor
tho comparison is equally decisive. By the
New York constitution, the lieutenant govern
or is to serve until the next election of gov
ernor. Our constitution says, "until another
be duly qualified," which is not the language
of the New York constitution, but- of the old
constitution of Kentucky. It is very clear, if
the governor of New York should die or re
sign, that another governor, to fill his vacan
cy, might be elected, because the constitution
=ays so; and it is equally clear, that the mo
ment another is elected, the lieutenant gover
nor is out of office, because the constitution
says he shall only continue in office until
such election.
I think it is now sufficiently demonstrated
that the lieutenant governor. Slaughter, is,
by his election, in office for four years; and it
cannot be denied that at every election of gov
ernor there must bo an election of lieutenant
governor. The inference is irresistible that a
governor cannot be elected until four years
shall have expired from the last election of
governor — in other words, that Slaughter can
remain "until a governor be duly qualified,"
which you now see, only means that a govern
or be elected at the ordinaiy quadrennial
election, and sworn in according to the requi
sitions ot the constitution. Duly qualified
can import nothing else than that he should
be regularly elected, at the general election,
four years succeeding the last general elec
tion, in the manner prescribed by the consti-
tion, possess all the qualifications, and take
the oath which it requires. No man can be
duly qualified as governor of this common
wealth in any other way. And if you should
ever say he can, with that voice, by which

TO TIIL I'EOPLE OF KENTUCKY,

you consecrate his usurpation, you consign
your constitution to the GRAVE.
Having briefly and in a desultory manner
examined all those parts of our present con
stitution which tend to ihe elucidation of the
suWect, I proposed to illustrate; and having,
as I think, clearly demonstrated that a new
election of governor, as attempted, is not on
ly unauthorized by that instrument, hut is
palpably inconsistent with many of its posi
tive provisions, and in violation of common
sense and every legitimate rule of construc
tion, I might be content to close the constitu
tional argument.
But before I leave the constitution, I must,
for a moment, place the subject iu a different
attitude, which will, I am sure, confound all
opposition. For this purpose I must ask
your indulgence to go with me to the old con
stitution, and compare it with our present one.
From this source 1 believe you will be able to
discover an argument, that will, like elec
tricity, flash conviction on every mind, and
one that will be completely triumphant.
This process of argument cannot be ob
jected to, because it must and will convince,
and because it is the most correct and unex
ceptionable kind of argument on construction.
It is an established maxim of legal construc
tion, that when any remedial law is ambigu
ous, or the. reason, application or design of it
uncertain, we should resort to the old law, the
mischief and the remedy.
The advocates have concentrated all their
argument on this ground, to-wit, a compari
son with, not our old coustitution, but that of
New York! It will be recollected that the in
strument to which I now invite your atten
tion was our first constitution, and that the
one under which we now live is only an
amendment of the old one. It is fair, there
fore, to examine the old constitution, to see the
provisions therein contained in regard to the
executive department, ascertain how far we
then had, or whether we had at all the right
of electing a governor to fill a casual vacancy
before the expiration of the constitutional term,
and whether any, and what changes or amend
ments are to be found in the new con,stitution.
Old Constitution, Art. 2, Sec. 2. — "The
governor shall b* chosen by the electors of the
senate, at the same time, at the same place, and
in the sjme manner."
Seo. 3. "The governor shall hold his office
during four years."
Sec: 15. "In case of the death or resignation
of the governor, or of his removal from office,
the speaker of the senate shall exercise the of
fice of governor, until another shall be duly
qualified." It will be recollected that under this consti
tution there was no lieutenant governor, and
we see from the foregoing extracts how the
governor was to be elected, the duration of his
office, and how vacancies that might happen
in his office by death, resignation, or removal,
were to be filled. You see that the language
of the old constitution, "until anotihcr be duly
qualified," is precisely the same used in the

now — and that the only difference is, that by
the old constitution the sjieaker of the senate
was to fill the vacancy, until another governor
should "be duly qualified," and by the new
the lieutenant governor in the first instance
has that right. It becomes material now, to
enquire how and when, by the old constitu
tion, the new governor couy be duly ciualifiod,
to succeed the ex-governor. And to enable
us to do this satisfactorily, itis only necessary
that we should ascertain how and when sena
tors were to be elected by the first constitution.
For you must not forget that the governor was
to be elected iu the same manner and at the
same time.
Old Constitution, Art. 1 , Sec. — "The sen
ate shall be chosen in the following manner:
All persons qualified to vote for representa
tives, shall, on the first Tuesday in May, in
the present year, and on the same day in every
fourth year forever thereafter, at the place ap
pointed by law, for choosing representatives,
elect by ballot, by a majority of votes, as many
persons as they are entitled to have, for repre
sentatives for their respective counties, to be
ELECTORS of the senate."
Sec. 12. "The electors of the. senate shall
meet at such place as shall be appointed for
convening the legislature on the 3d Tuesday
in May in the present year, and on the same
day in every fourth year thereafter."
'the governor was to be elected for four
years, at the same time and in the same manner
that senators were elected. Senators were
elected once in every four years, by electors
who were elected every four years, and were
to nseet once in every four years. Hence, itis
plain that a, governor could only be elected
once in four years. Suppose governor Shelby
(who was our first governor under the old con
stitution) had resigned, or died one year after
he was installed, or "duly qualified," upon
whom would the admiiiistratiou of the govern
ment have devolved? You will answer, the
speaker of the senate. Well, how long would
he have had a right to the office and emolu
ments of governor? You will reply, until "an
other governor shall have been duly qualified."
But now ask yourselves the important ques
tion, when cotild this new governor be "duly
qualified?" The solution is given by the con
stitution. He could not be constitutionally
elected until four years succeeding the elec
tion of the former governor, Shelby. If he
could, I should be gratified to know when.
Could he have been elected in any other way
than by electors of the senate? No. Could they
be elected,, or hold their electorial meeting
more than once in four years? Most certainl)'
not. But it may be said by some of the new
election sophists, that the constitution only
dechares they shall be elected once in every

four years, .and shall meet to vote once in every
four years, but does not prohibit their election
and convention oftener if any exigency should
require it. I might admit, that if the provis
ions made in the constitution to fill the vacan
cy in the office of governor should happen to
fail, then, to preven't anarchy and adissolution

16

TO THE PEOPLE OP KENTUCKY.

of the government, wo would have a right to
fill the vacancy when and how we might think
fit — ^because the power would, in that event,
revert to us. But this has no concern with the
present question. In the one proposed, the
people of Kentucky would not have had a
right to elect a governor in any other manner
or at any other tinie than that prescribed by
the constitution; For see the absurdity of a
contrary doctrine. Suppose (governor Shelby
having resigned three j'cars before the exjDira-
tion of his term,) that the people had immedi
ately elected electors, and that they had
forthwith, or at any time before the expiration
of the term, elected a governor — would they
have had a right to elect senators at the same
time? They had not. AVould they have
elected a governor for the remnant of Shel
by's term? • They could not, for the constitution
is imperative that he shall be elected for four
years. Could they have elected him for four
years? You must instantly perceive that they
could not — for the constitution is express and
positive that the electors of the senate shall
elect senators and a governor once in every four
years. But this they could not do, if this spe
cial board ol electors ;'List me'fetioned hacl a
right to elect a governoi for four years, after
two years of Shelby's term had expired, and
bad actually elected one for that period — for
the term of this new governor would extend
two years beyond the time, when electors of
the senate are commanded to elect a governor;
therefore either they must not be permitted to
obey and support the constitiution, or the spe
cial electors, unknown to the constitution, had
not the right to elect. This being the alterna
tive, no honest man, however skejJtical, can
possibly hesitate. I think this view of the
subject demonstrates, beyond a doubt, that un-
- der the old constitution, a new governor could
not have been "duly qualified" until the expi
ration of the term for which his predecessor
was elected, ar(d that consequently the func
tions, power, prerogatives and emoluments of
govenior devolved on the speaker of the sen
ate, in case of the death or resignation of the
governor, for the remainder of that term.
Those, then, are tho provisions, and this the
doctrine of the old constitution. After a few
years' experiment, it was in some respects
found to be defective. To amend it and make
it more perfect, a convention was called, and
assembled in 1799. In Some of the prominent
features of tlie old constitution they made a
radical change, and in August, 1799, adopted,
as an amendment or substitute, that master
piece of political architecture, our present cou
stitution. But in relation to the executive de
partment, and the mode of filling vacancies
that might occur in it, what have they done?
They knew well the provisions of the old con
stitution on this subject, and their inevitable
construction. Have they changed them? So
far as regards our present enquiry, they have
not, but confirmed and re-adopted them. In
the old constitution, the expression, "until an
other be duly qualified" meant, until he should
have been elected by electors of tii.- sonale four

years after the former election, and taken tho
requisite oath. If the new convention used
the same words without any other explanation
or restriction, did they not intend that they
should convey the same moaning? You find
that the only difference between the two con
stitutions, in case of vacancy in the office of
governor is, that in the first, the speaker of the
senate should administer the government until
another be duly qualified — and in the last, the
lieutenant governor should administer the gov
ernment until another be duly qualified.
If the members of the convention had
thought the old constitution was defective in
its provisions for filling a vacancy in the office
of governor in any other respect, why did they
not change those provisions? We find that
they have materially altered tho old constitu
tion in other respects. They have even
changed the mode in which the governor shall
be elected, giving the qualified voters, instead
of electors of the senate, that right. They have
created a lieutenant governor for the sole pur
pose of administering the government, instead
of the speaker of the senate. They have ex
tended the enumeration of instances in which
he shall act as governor. Why, then, did
they not change the old constitution, so far as
it had fi.xed the time when a new governor
should be duly qualified? The answer is ob
vious — they did not think good policy would
authorize it. They very wisely believed that
the remedy would be worse than the disease.
Instead of changing the time of election, they
have only altered the manner — instead of au
thorizing a special election of a new governor,
they have doubly increased the obstacles to it,
and the number of persons who may fill any
vacancy that may occur, by making more and
wiser provisions for that pui-pose. And now
you may see a complete explication ef the^
reasons why, and the purpose for which a lieu^'
tenant governor was created. It was thought
as the speaker of the senate might fre
quently be a very weak man, totally unfit for
the office of governca', and was not the choice of
the state, that it would be unwise and unsafe
to confide the administration of the govern
ment' to him for so long a time as two or
three years, if it could be conveniently avoid
ed. The convention determined that, when a
governor should bo elected, a lieutenant gov
ernor sliould also be elected, in the SMie way
and possessingtho same qualifications, for the
purpose of succeeding him in office, in case he
should vacate it any time before the expiration
of his term of ser\-ice, or be suspended froiQ
tho exercise of its functions by impeachment or
absence from the state. They knew from ex
perience, the school of wisdom, that a too fre
quent recurrence to popular elections for the
first office under the government would bo
dangerous and mischievous. They deter
mined that.oncc! in four j'ears would be as of
ten as the harmony of the country and the sta
bility of the government would w.arrant tho
elcclion of •^'ovcrnor, and to prevent any mis.
chiif that might rcs\ih from an election at a

TO THE PEOPLE OF KENTUCKY.

17

shorter period, tho old convention provided
who should be governor, or in case the governor
elect should vacate his office. Tho new con
vention, influenced by the same motives, have
not only ratified this policy, but through
abundant caution, have made the succession
more secure, more perfect and more satisfacto
ry. They have designated the lieutenant gov
ernor (whom they created for that special pur
pose, and no other) in the first place, and then
mthe case of casualty, the speaker of the senate.
Hence they required that a secondaiy officer
should be elected with the first, in the same
manner and possessing the same qualifications
— that if by any accident we should lose our
fovemor, his functions shall devolve on and
e discharged by a man of our own choice,
whom we have elected for that very purpose,
knowing at the time we elected him that he
might be called to the executive chair. It
would be ridiculously absurd to say that the
lieutenant governor was created for any other
purpose, even to be speaker of the senate. The
constitution itself is decisive. It says, "the
lieutenant governor shall, by virtue of his of
fice," be speaker of the senate,
From this concise and hasty view of the two
constitutions, I presume no man can doubt
what the convention intended when they used
the expression, "until another be duly quali
fied," For it must mean in the new constitu
tion what it did in the old, the new being only
a continuance of the old, and in the same lan
guage; and that the present incumbent, Gabri
el Slaughter, has a constitutional right to the
office which he now fills, until the expiration
of the term for -ivhich Madison was elected, and
until another governor be constitutionally
elected, constitutionally qualified, and consti
tutionally sworn into office — that is, "until an
other be duly qualified" — ^which means, quali
fied according to and in pursuance of the con
stitution. If further argument could be ne
cessary for any capacity, I might refer you to
the constitutions of some of our sister states,
adopted before ours, in which the same ex
pression, "until another be duly qualified," is
used, and from which it is clear that a new
election to fill a vacancy in the executive office
was unauthorized and unnecessaiy. Indeed,
if it were necessaiy, and time would permit,
the subject might be pursued to almost mathe
matical demonstration.
As the only object of the new convention
was to amend the old constitution where they
should deem it defective, is it not clear, that if
they had believed that it was defective, be
cause it did not authorize an election to fill a
vacancy in the office of governor until the ex
piration of four years, and becatise it confided
the helm of state to a mere speaker of the
senate, elected by only about one twentieth of
the state, they would have amended it, so as
to authorize such election after the adoption of
the new constitution? But instead of this,
they have only changed the right of election
from electors elected by the people, and given
it to the people themselves. 'They have said
that we shall exorcise tlie right personally, and
3

not representatively or by proxy; and that a
lieutenant governor, whom wo shall elect for
no other purpose, shall, in case of a vacancy in
the office of governor, act as governor, instead
of the speaker of the senate, in the old consti
tution. Therefore, if under the old constitu
tion we had not a right to elect, much stronger
are the reasons why we cannot now.
But it is said by the advocates of a new eleo-
tioUj "that it would be anti-republican, contra
ry to the spirit ancl genius of our government to
submit to be governed by a mere subaltern."
This, you may perceive, is done to excite feel
ing and prejudice, and drown reason. Those
gentlemen must certainly have sense enough to
know that this slang is not to be taken for ar
gument, and that intelligent men will not bo
seduced by it. But, in all their argument,
they have never once drawn their reasoning
from the constitution, but have invariably gone
behind it, to a period when we were in a state
of nature, and were not fettered by what they
would call constitutional chains. ' It is not
proper to ask us what we may like or dislike,
or what, if we had the power, we would do —
they should show us -ivhat we may do and
what we must <lo. But this doctrine they will
please to call anti-republican, because it does
not perniit us to do whatevei' we please. —
Therefore they say that we ought not to sub
mit to the government of the lieutenant gover
nor. And how do they attempt to prove it?
Not by the constitution — not by shewing us
that the constitution does not give him tho
right to govern us, but by telling us that if we
suffer it, we are resigning our liberty, (that is,
of doing what we please, right or wrong) and
tamely renouncing the elective franchise. Is
not this inost ridiculous argument? They
know well that we have surrendered this right
to a certain extent, by our social compact, and
that we cannot exercise it except when and in
tho manner that compact will authorize.
We have surrendered it on the altar of tho
common good, by that great, and solemn, and
sovereign Fiat, which no human legislature
can repeal. But if this appeal to the selfish
bias of our nature were an apposite argument,
how easily is it refuted? Was it not equally
hard, and equally subversive of what some
men call our rights, to compel us to be ruled
(as the old constitution did) by a man who
was only elected as a senator by perhaps one
county? Certainly, and much more so; for
now we have a man who was our choice, in
whom we reposed confidence, and whom we
elected for the purpose of filling the vacancy
he now fills; and whether it be harder soft,
necessary or unnecessary, is immaterial. It is
enough that we have, by the most solemn act
we have ever done, and I believe as wise an
one, said it should be so; we elected him vol
untarily, knowing that he might become our
governor if a certain contingency should hap
pen — it has happened — and no thereby becomes
as much our governor as if we had chosen him
instead of the lamented Madison. By the
death of Madison, he, to-wit. Slaughter, has a
\'cstcd right to all, the honor, power, and profit

TO THE PEOPLE OF KENTUCKY.

appertaining to the office of governor; we have
given it to him by our voices in the convention,
and at his election, and have no right to take
it away without his consent.
It has also been said by some, that Slaughter
has not a right to administer the government
until the expiration of the term for which^ he
was elected, because he would still be eligible
to the office of governor, which would be con
trary to the spirit of the constitution, which
declares that the governor shall not be re-eli
gible to the office of governor for seven years
after the expiration of the term for which he
was elected. This is so futile an argument
that I shall only refer you to the 3d article and
8th clause of the constitution to prove its falla
cy. By that clause, the lieutenant governor,
in case the governor shall be absent from the
state, shall administer the government until his
return, or another be duly qualified. Suppose
he should not return until the expiration of the
term for which he was elected, would not the
lieutenant governor have a right to his office the
whole of that time? Certainly he would.
Would that make him ineligible to the office of
fovernor at the next election? It would not.
'his argument also is then prostrated. I will
not pretend to answer the arguments in detail
that have been used — they^ are all completely
answered. I will not fatime your patience
nor insult your understanding by detaining
you with further argument to prove that which
IS almost as self-evident as that you have
noses on your faces, and which, if proof were
necessary, has been abundantly, and I believe
unanswerably demonstrated, to the satisfac
tion and conviction of every impartial mind.
I might say much more on this subject, but I
have said more already than I would have
desired, if the nature of the subject would have
permitted less. The constitution is sufficient
ly plain on its face, but the ingenuity of man
can distort and disguise, by svibtle sophistry,
the most self-evident truth. This has been the
object of the advocates of a new election. To
aid in an honest endeavor to defeat their mach
inations, and arrest the further extension of
their erroneous and mischievous doctrines, was
the only motive that prompted this address.
And I think I have shewn clearly that we have
not a right to elect a governor to supply the
vacancy occasioned by Madison's death — by
proving, in the first place, from the provisions
m the constitution, that the convention did not
intend that there should be such election ; in
the second place, that at every election for gov
ernor there should be an election for lieutenant
governor, and that the lieutenant governor is
elected for four years, and that consequently
we cannot now elect another in his place. And
the latter proposition I think I have abundant
ly supported, not only from our own, but also
from the constitution of New York, and the
old CONSTITUTION, from which the iVEW
was copied, and not as alleged from that of
New York. 1 think no man will now feel a
doubt; but I do not expect that those who have
written in the newspapers, and made stump
speeches in favor of a new election, will change

their course; for it cannot be expected that
men who publish to the world opinions, for
which they are not able to give one good rea
son, and whose exaltation into notice and of
fice depends solely on the success of their
opinions, will ever change their conduct until
their dispositions and tempers be radically al
tered. To tho,se men I did not address my
self with any hope of success; but it is to you
who may have been innocently seduced by
their artifice, and deluded by the confidence
you reposed in their intelligence and candor,
without examining the constitution, and who
have no interest or disposition to violate it;
you, the honest yeomanry of the country, who
are the stay and hope of the government, and
who will spill your blood in defence of your
constitutional liberty. Examine honestly, I
conjure you, the conduct of those prominent
men who advocate a new election; observe
their situations and their motions, look at their
arguments, and ask yourselves, in the honesty
of your hearts, why all this parade, this zeal
and fermentation? Is it because those men
love their country more than their countrymen
do? — because they are disinterestedly and exclu
sively our friends, or because they wish to do
us a service? Or is it not more because they
love themselves, and wish to climb into office
and power by exciting our prejudices and our
fears? Do they furnish any evidence of their
love for us, or regard for our interest, peace or
happiness, when, without any good cause,
they attempt to excite tumult and commotion,
destroy the harmony of the country, and bring
on all the horrors of a civil war? And for
what is this to be done? To preserve our con
stitution? No; to sacrifice it. Is it to promote
our interest or happiness? This cannot be.
But an attempt has been made to lull our ap
prehensions. We have been gravely told that
there is no danger of confusion, anarchy, or
civil strife. This is the language of all revo
lutionists. Can you believe it? Suppose you
elect another governor to supersede Slaughter,
will he give up the administration of the gov
ernment? Surely if he be a firm and honest
man, determined to do his duty, and save tie
constitution from violence, and his countiy
from ruin and disgrace, he will defend them
to the last. If he would tamely submit, he
would treacherously surrender them — he
would be a pusillanimous and nnfaithful sen
tinel. He is not such a man. But suppose he
should be frightened or forced out of his duty,
would you say there was no commotion, no vi
olence? And what further would be the conse
quence? Those who do not believe that the
coustitution warrants an election, would not
submit to any law signed by the new gover
nor. How would you force obedience? 'Would
not this be anarchy? But then the courts, the
last anchor of safety, would be appealed to;
some might decide one way through fear,
others differently from a sense of duty. But
do you believe the Court of Appeals, sworn to
support the constitution, would surrender it?
But we are boldly told, that they dare not re
fuse!.' Oh! my country, artthou, with .all thy

•BO THE PEOPLE OF KENTUCKY.

19

boble and exalted destinies, quivering on this
awful precipicel Have we come to this, that
a few men may sack the constitution when
they please, with impunity? The advocates
of a new election admit that wo have not a
right to change the constitution in any other
way than that therein prescribed, but some of
them still have the effrontery to say, that we
can force the courts to give it what construc
tion we please. What is this but repealing it?
Are we not constrained to fear that any man
who will endeavor to make us believe such
doctrines, would prostrate our liberties that he
mightrise on theirniins? Will you then, peo
ple of Kentucky, permit yourselves to be
duped and cheated out of your constitution by
those candidates for power? Are you not free
men? Then think for yourselves, and act
like men who deserve to be free; act coolly, de
liberately, and wisely. I do not ask you to
believe what I have said, because I have an
interest in the welfare of my country, and none
in erring on the question I undertake to dis
cuss; but because I have addressed you in the
language of truth and honest sincerity; for al
though I do not, nor never expect to hold any

office under the state government, yet I do
feel a deep interest in Kentucky's welfare and
repose; it is the place of my birth and my
home. If any thing I have said, or any position I
have taken be doubtful, I only ask you to ex
amine the constitution over and over again un
til you shall become completely satisfied. But
ifitbe possibleyou can still doubt, pursue the
course dictated by your interest and safety.
Recollect that if it even be doubtful, whether
you have the right to elect a governor, to fill
the vacancy occasioned by Madison's death,
you cannot violate the constitution by a sub
mission to the present state of things, but that
you may destroy it, and with it your peace and
happiness, by hazarding an unnecessary elec
tion. Sport not with this sacred instrument,'
I beseech you. It is your interest and duty,
not only to yourselves, but to your children
and your children's children, to defend it
even against the slightest encroachment.
This is the only way to preserve your liberties,
and transmit them unimpaired to your poster
ity. A KENTUCKIAN.

PRELECTION.

On the 16th of December, 1818, on the motion of Mr. Robertson, of Kentucky,
a select committee, consisting of Mr. Robertson, Mr. Beecher, of Ohio, and Mr.
Jones, of Tennessee, was appointed to inquire into the expediency of organizing
a separate territorial government, in that portion of the then territory of Missouri,
lying south of 36:30° north latitude. On the 21st of the same month, Mr.
Robertson reported to the House of Representatives of the United States the
Bill, as it finally passed. On the 18th of February, 1819, the following amend
ment was offered, in the committee of the whole, by John W. Taylor, of New
York: ¦^And he it further enacted. That neither slavery nor involuntary servitude
shall be introduced into the said territory, otherwise than for tho punishment of
crimes, whereby the party shall have been lawfully convicted. And all children
born of slaves within the said territory shall be free, but may be held to service un
til the age of 25 years."
This was a year before the agitation of the '-'Missouri Contrcwersy," and may
be deemed the origin of what has since been called "the WUmoi Proviso."
On that proposition the following speech was made. The proposed amend
ment having been rejected by the committee of the whole, Mr. Taylor renewed it
in the House, which also rejected it by the following vote: ,
"feas — Messrs. Adams, Allen, of Mass., Anderson, of Pa,, Barber, of Ohio,
Bateman, Bennett, Boden, Boss, Comstock, Crafts, Cushman, Darlington, Drake,
Folger, Fuller, Hall, of Del., Hasbrouok, Hendricks, Herrick, Hiester, Hitchcock,
Hostett-er, Hubbard, Hunter, Huntington, Irving, of N. Y., Lawyer, Lincoln.
Linn, Livermore, W. Maclay, W. P. Maclay, Marchand, Mason, of R. I., Merrill,
Robert Moore, Samuel Moore, Morton, Moseley, Murray, Jer. Nelson, Ogle, Orr,
Palmer, Petterson, Pawling, Rice, Rich, Richards, Rogers, Ruggles, Sampson,
Savage, Scudder, Seybert, Sherwood. Southward, Spencer, Tallmadge, Tarr,
Taylor, Terry, Tompkins, Townsend, Wallace, Wendover, Whiteside, Williams,
of Conn., Williams, of N. Y., Wilson, of Pa.— 70.
Nays — Messrs. Anderson, of Kentucky, Austin, Ball, Barbour, of Va., Bassett,
Bayley, Beecher, Bloomfield, Blount, Bryan, Burwell, Butler, of La., Cobb,
Cook, Crawford, Culbreth, Desha, Earl, Edwards, Garnett, Hall, of N. C, Harri
son, Hogg, Holmes, Johnson, of Va., Johnson, of Ky., Jones, Kinsey, Lewis,
Little, Lowndes, M'Lane, of Del., M'Lean, of 111., M'Coy, Marr, Mason, of
Mass.,* H. Nelson, T. M. Nelson, New, Newton, Ogden, Owen, Parrott, Pe-
gram, Peter, Pindall, Pleasants, Porter, Quarles, Reed, of Ga., Rhea, Robertson,
Sawyer, Settle, Shaw, Simpkins, Slocumb, S. Smith, Alex. Smyth, J, S. Smith,
Speed, Stewart, of N. C, Storrs, Stuart, of Md., Terrell, Trimble, Tucker, of
Va., Tucker,ofS. C, Tyler, Walker, ofN. C, Wilhams, of N. C— 71_.
Mr. T. then moved so much of said amendment as related prospectively to the
issue of slaves, and that was adopted by the following vote:
Yeas — Messrs. Adams, Anderson, of Pa., Barber, of Ohio, Bateman, Bennett,
Boden, Boss, Comstock. Crafts, Cushman, DarUngton, Drake, Ellicott, Folger,
Fuller, Gilbert, Hall, of Del., Hasbrouck, Hendricks, Herrick, Hiester, Hitchcock,
Hostetter, Hubbard, Hunter, Huntington, Irving, of N. Y., Kirtland, Lawyer,
Lincoln, Linn, Livarmore, W. Maclay, W. P. Maclay, Marchand, Merrill, Mills,
Robt. Moore, Samuel Moore, Morton, Moseley, Murray, Jer. Nelson, Ogle, Orr,
Palmer, Patterson, Pawling, Rice, Rich, Richards, Rogers, Ruggles, Sampson,
Savage, Schuyler, Scudder, Seybert, Sherwood, Southward, Spencer, Tallmadge,

•i^ PRELECTION.
Tarr, Taylor, Terry, Tompkins, Townsend, 'Wallace, Wendover, Westerlo, White--
side, Williams, of Con., Williams, of N. C, Williams, of N. Y., Wilson, of Pa.
—76. Nays — Messrs. Abbott, Anderson, of Ky., Austin, Ball, Barbour, of Va., Bas
sett, Bayley, Beecher, Bloomfield, Blount, Bryan, Burwell, Butler, of La., Cobb,
Cook, Crawford, Cruger, Culbreth, Desha, Earl, Edwards, Garnett, Hall, N. C,
Harrison, Hogg, Holmes, Johnson of Va., Johnson, of Ky., Jones, Kinsey, Lew
is, Little Lowndes, M'Lane, of Del, McLean, of III, M'Coy, Marr, Mason, of
Mass., Middleton, H. Nelson, T. M. Nelson, Nesbitt, New, Ogden, Owen, Par
rott, Pegram, Peter, Pindall, Pleasant, Quarles, Reed, of Md., Reed, of Ga.,Rhea,
Robertson, Sawyer, Settle, Shaw, Simkins, Slocumb, S. Smith, Alez, Smyth, J.
S. Smith, Speed, Stwart, of N. C, Storrs, Stuart, of Md, Terrell, Trimble, Tuck
er, of Va., Tucker, of S. C, Tyler, Walker, of N. C— 73.
On the next day Mr. Robertson moved a reference of the Bill to a select com
mittee, with instructions to strike out of the 1st section thereof the following
words: "And all children born of slaves within tlie said territory sliall be free, but
maybe held to service until the age of twenty five years. ^'
Which motion prevailed by the following vote:
Yeas — Messrs. Abbott, Anderson, of Ky., Austin, Baldwin, Ball, Barbour, of
Va., Bassett, Bayley, Beecher, Bloomfield, Blount, Bryan, Butler, of La., Camp
bell, Cobb, Colston, Cook, Crawford, Cruger, Davidson, Desha, Earl, Edwards,
Ervin,of S. C, Fisher, Floyd, Garnett, Hall, of N. C, Harrison, Hogg, Holmes,
Johnson, of Va., Johnson, of Kentucky, Jones, Kinsey, Lewis, Little, Lowndes,
M'Lane, of Del., McLean, of HI., McCoy, Marr, Mason, of Mass., Mercer, Mid
dleton, H. Nelson, T. M. Nelson, Nesbitt, New, Newton, Ogden, Owen, Parrott,
Pegram, Peter, Pindall, Pleasants, Poindexter, Quarles, Reed, of Md., Reed, of
Ga., Rhea, Ringgold, Robertson, Sawyer, Settle, Shaw, Simkins, Slocumb, S.
Smith, Bal. Smith, Alex. Smith, J. S. Smith, Speed, Stewart, of N. C, Storrs,
Strother, Stuart, of Md„ Terrell, Trimble, Tucker, of Va., Tucker, of S. C, Ty
ler, Walker, ofN. C, Walker, of Ky., Whitman, Williams, of N. C— 88.
Nays— Messrs. Adams, Allen, of Mass., Anderson, of Pa., Barber, of Ohio,
Bateman, Bennett, Boden, Boss, Clagen, Comstock, Crafts, Cushman, Darhng-
ton, Drake, 'Ellicott, Folger, Fuller, Gage, Gilbert, Hale, Hall, of Del., Hasbrouk,
Hendricks, Herkimer, Herrick, Hiester, Hitchcock, Hopkinson, Hostetter, Hub
bard, Hunter, Huntington, Irving, of N. Y., Kirtland, Lawyer, Lincoln, Linn,
Livermore, W. Maclay, W. P. Maclay, Marchand; Mason, of R. I., Merrill,
Mills, Robert Moore, Samuel Moore, Morton, Moseley, Murray, Jer. Nelson,
Ogle, Orr, Palmer, Patterson, Pawling, Pitkin, Porter, Rice, Rich, Richards,
Rogers, Ruggles, Sampson, Savage, Schuyler, Scudder, Sergeant, Seybert,
Sherwood, Silsbee, Southard, Spencer, Tallmadge, Tarr, Taylor, Terry, Tomp
kins, Townsend, Upham, Wallace, Wendover, Westerlo, Whiteside, Wilkin,
Williams, of Con., Williams, of N. Y, Wilson, of Mass., Wilson, of Pa.— 88.
There being an equal division, the Speaker (Henry Clay) declared himself in
the afiirmative, and so the said motion was carried.
And Mr. Robertson, of Ky., Mr. Silisbee, of Mass., Mr. Burwell, of Va., Mr.
Mills, of Mass., and Mr. Lowndes, of S. C, were appointed the said committee.
On the same day Mr. Robertson reported the bill without the said amendment;
and on the question of concurrence with the committee in striking out said amend
ment, the House concurred by the following vote:
Yeas— Messrs. Abbott, Anderson, of Ky., Austin, Baldwin, Ball, Barbour, of
Va., Bassett, Bayley, Beecher, Bloomfield, Blount, Bryan, Burwell, Butler, of
La., Campbell, Cobb, Colston, Cook, Crawford, Cruger, Culbreth,' DavidsoD,
Desha, Earl, Edwards, Ervin, of S. C, Fisher, Floyd, Garnett, Hall, ofN. C,
Harrison, Hogg, Holmes, Johnson, of Va., Johnson, of Ky., Jones, Kinsev Lew
is Little Lowndes, M'Lane, of Dd., M'Lean, of EL, M'Coy, Marr, Mason, of
Mass., Mercer, Middleton, H.Nelson, T.M. Nelson, Nesbitt New Newton Og-

PRELECTION. 23
d«n, Owen, Parrott, Pegram, Peter, Pindall, Pleasants, Poindexter, Quarles,
Reed, of Md., Reed, of Ga., Rhea, Ringgold, Robertson, Sawyer, Settle, Shaw,
Simkins, Slocumb, S. Smith, Bal. Smith, Alex. Smith, J. S. Smith, Speed, Stew
art, ofN. C, Storrs, Strother, Stuart, of Md., Terrell, Trimble, Tucker, of Va.,
Tucker, of S. C, Tyler, Walker, of N. C, Walker, of Ky., Whitman, fft^imams,
of N. C— 89.
Nays — Messrs. Adams, Allen, of Mass., Anderson, of Pa., Barber, of Ohio,
Bateman, Bennett, Boden, Boss, Clagett, Comstock, Crafts, Cushman, Darlington,
Drake Ellicott, Folger, Fuller, Gage, Gilbert, Hale, Hall, of Del., Hasbrouk, Hen-
drisks, Herkimer, Herrick, Hiester, Hitchcock, Hopkinson, Hostetter, Hubbard,
Huntington, Irving, of N. Y., Kirtland, Lawyer, Lincoln, Linn, Livermore, W.
Maclay, W. P. Maclay, Marchand, Mason, of R. I., Merrill, Mills, Robert Moore,
Samuel Moore, Morton, Moseley, Murray, Jer. Nelson, Ogle, Orr, Palmer, Pat
terson, Pawhng, Pitkin, Porter, Rice, Rich, Richards, Rogers, Ruggles, Savage,
Schuyler, Scudder, Sergeant, Seybert, Sherwood, Silsbee, Southward, Spencer,
Tallmadge, Tarr, Taylor, Terry, Tompkins, Townsend, Upha.m, Wallace, Wend
over, Westerlo, Whiteside, Wilkin, ^WiUiams, of Con., Williams, of N. Y., W!!-
son, of Mass., Wilson, of Pa. — 87.
The Bill, as originally reported, was then engrossed, and on the next day,
(20th February, 1819) was passed.
From the foregoing synopsis, the present age and posterity will be able to see
how equally divided, and how geographical, in this first controversy on the sub
ject, were the parties which have since so much agitated the public mind and dis.
turbed the public peace, and may also see how far the following speech was pro
phetical of the consequences of all such agitation, and presented an outline of the
true national power and pohcy, on a most delicate and ijiteresting topic.

SPEECH OF MR. ROBERTSON, OF KENTUCKY,
On the Bill to establish the Tenitorial Government of Arkansas.
[Congressional Debates, I8th of February, 1819.]

tVHEN leave was asked to bring in this bill
to organize a separate territorial government
for Arkansas, I explained the reasons which,
in my judgment, should commend such a
measure to the approval of Congress. I had
consulted no person on the subject — not even
the delegate from Missouri, from which the
proposed territory was to be taken. JBut it
seemed to me that the remote, forlorn, and al
most lawless condition of the population of
the Ai'kansas regions, demands, in resistless
tones, a separate and efficient organization
and government; and in this sentiment I am
happy to find, not only that the worthy dele
gate from Missouri concurs, but that the vote
on the leave proves the unanimous concur
rence of this House also.
It would be useless, therefore, to repeat or
enlarge on the suggestions made on a former
occasion, to prove the propriety of passing the
bill, as repoited, nor is any argument as to
any of the details of the bill necessary now —
because no objection has been made, or is ap
prehended on any such ground.
The great and only proper subject of de
bate is, whether it should pass with the pro
posed interdiction of slavery, inserted in it as
a condition of its passage. To that proposi
tion I am altogether opposed, and if it be
maintained, I shall vote against my own bill.
My argument will be confined to a brief dis
cussion of the amendment for interdicting ;
slavery, proposedby the gentleman from New |
York, (Mr. Taylor) and urged with so much '
zeal and vehemence by himself and some other :
Northern members. And not intending to ar
gue this grave matter in extenso,! shall con
tent myself, en the present occasion, with a
condensed outline of the principal reasons
which convince me that the question, now agi
tated in a new form, /or the first time, is iudis-
creetly proposed, and should be stifled in its
germ. Slavery was the most delicate and fnimicfa-
ble of all the vexatious subjects which divided j
the councils which made and adopted the I
Constitution of the United States. Had it not
been wisely put to sleep by .i magnanimous I
compromise, the charter of our Union would i
never have been sealed. The same spirit of I
patriotic uatioualiiy and forbearance is indis- j
2Densable to tho harmony and preservation of
that glorious offspring of mutual concession, of
local in'.eivsts, and compromise ofconfiicUng
4

and long cherished opinions; and the gen
eral government, responsible to all, and the
guardian of the national interests of all, as a
faithful ^ trustee, must, by its impartiality,
moderation, and benevolence, conciliate the
confidence and affection of all its citizens.
North and South, East and "West. This can
be effectually done only by administering the
government, (in its legislative function, espe
cially,) in the spirit of compromise which
brought it into being.
That spirit left slavery as a local concern, to
be disposed of by local interest and opinion, and
itis the duty of Congress to abstain frorii any
act; which will disturb that wise and eventful
adjustment of a matter which can never be oth
erwise settled, either justly or peaceably. Hav
ing prohibited foreign importations of slaves
into the United States, Congress should leave,
as the patriarchs of the constitution left, the
domestic institution to the states, and the peo
ple of territories of the United States, to be dis
posed of ^as each separate community of free-
meh may choose for themselves; and in this
domestic aspect of slavery. Congress ought
never to touch it or countenance any agitation
concerning it among the states, or tjie people
of the United States, in any form or for any
purpose. Itis a sensitive plant, which the na
tional hand cannot touch without injury, or sense
of outrage, or extreme danger of both.
Congress has, I admit, constitutional power
to legislate over the District of Columbia, an(J
over Arkansas, and over every other territory
subject to the exclusive jurisdiction of the
United States government; and I concede, also,
that this is so far plenary as to be subject to
no other limitation than sound discretion fin (J
thefederal constitution. In other words, that
the legislative power of Congress is as com
prehensive as that of the territoiy itself woul4
be, if it, instead of the general government,
were permitted to exercise all power over its
own concerns, which might be consistent with
the constitution or the United States. That.
constitution does not guarantee to the people
of the territories the right to establish slaveryo
It leaves that concern to the discretion of Con.i
gross, and the will of the people of the territo
ries. But it does guarantee to every citizen of
the United States his private property, against
the power of the general government (except
fur taxation) without the consent of the owner
or just compensation. Although, therefore.

36

SPEEBH OF MB. BOBEKTSON.

CoDsT'css may emancipate slaves in any of the
teiritories of the United States where it exists,
the exercise of that power is subject to the con
dition that any owner, who withholds his con
sent to the act, shall be paid the value of his
slave or slaves so emancipated against his will.
Yet, as property in human beings as slaves is
merely legal, whether persons imported into a
territory subject to the jurisdiction of the Uni
ted States, shall be» slaves there or not, must
be a question of local law, and depends, there
fore, on the will of the law-giver, constitution
ally expressed. Of course the freemen of any
such territory, if permitted to exercise all leg
islative authority for themselves, could, with
out doubt as to the power, prohibit the institu
tion of slavery within their limits; and conse
quently. Congress, as long as it shall choose to
legislate for any such teriitoiy, may interdict
the introduction of slavery as a domestic insti
tution. But I deny that such legislation, by
Congress, would ever be necessaet to the pub
lic welfare, or wsuld, in ant case, without the
HEAETT CONOUaKENCE OF IHE SLAVE STATES, BE
EITHER JUST OR PRUDENT. Congress has no pow
er over slavery in any of ttie states of the
Union. Its continuance^ therefore, in the
United States, under the guarantees of thefed
eral constitution, depends altogether on the
will of the respective states in which it exists.
.^n expansion of its area would not, of itself,
augment its evils or prolong its existence, but
would certainly tend to meliorate its condition.
Neither policy nor benevolence would circum
scribe it within the states where it now exists.
No such effort, by Congress, would be benevo
lent, because deterioration in the value of slaves
and an aggravation of the perils and privations
incident to slavery in its best estate would be
the necessaryconsequences of all such unphilan-
thropic legislation. Nor would such legisla
tive interference be politic. 1st. Because it
would be inconsistent with true benevolence.
2nd. Because it would, to a great extent, give
to a section of the Union and one class of our
citizens a monopoly of the territories bought
with the money or the blood of all, and would,
therefore, seem to be invidious and unparental.
3rd. Because it would be inconsistent with the
compromising spirit of the constitution — ^would
be felt, by a large portion of our fellow-citizens,
as intended indirectly to operate to the dispar
agement of their property guarantied by the
public faith, and might, therefore, not only al
ienate the affections of many from the national
goverilment, but breed sectional collisions, and
generate and exasperate sectional parties — the
most dangerous to the Union of all others —
and on a subject most pregnant with unrea
sonable and uncompromising passions; and
lastly, because no such legislation can do any
practical good, and therefore, being gratuitous,
would be the more unkind and offensive; for if
it could neither hasten the peaceful extinction
of ^avery, nor improve the condition of slaves
ih the United States, by what just or prudent
motive of national patriotism coulfl it be jusl i-
fied or extenuated? None but a morbid phi
lanthropy, fali-e iu its aims and perhnpi fatal

in its results; for, sir, a spirit of prophecy i8
not necessary to enable a statesman to foresea
that all such Congressional action will awaken
jealousies and excite alarm, which will contrib
ute to the unnatural prolongation of the legal ex
istence of slavery in Amercca, rivet chains for
slaves, and, in its ultimate issue, might proba
bly even dissolve the Union.
According to the principles of the Declara
tion of Independence, principles consecrated
in the affections, and imbedded in the institu
tions of the countrymen of "Washington, every
separate community of freemen ought to regu
late their own social organization. Under the
protection of these principles, the citizens who
shall cast their lots in Arkansas ought to de
cide for themselves whether slavery shall exist
there or not, just as they would control all their
other domestic institutions and social relations
at home. Against their will. Congress ought
not to force the establishment of slavery or any
other domestic relation among them — against
their will Congress ought not to prohibit slave
ry there. As long as it shall exist in any of
the states of the Union, every territory of the
United States, as well as each state, should be
allowed to participate in it or not, as each, for
itself, may choose. Let them all alone, and
especially let it alone. This is the true and
only safe policy. If, in climate, soil, and pro
ducts, Arkansas be so adapted to slave labor
as to induce a majority of the immigrants to it
to carry slaves with them from slave states, or
to incline a majority of its freemen to prefer
the institution of slavery, why not let the felt
interests and inclinations of those who elect to
make that Southern country their home, de
cide its destiny as to the relation of slavery?
A transportation of slaves from states to terri
tories does not increase the number of slaves in
the United States, nor establish a slavery that
did not already exist; and if left to the prompt
ings of their own interests and feelings, the
people of Arkansas should choose to maintain
the institution of slavery. Congress will not
be responsible. "What is it to Congress, or to
the cause of universal liberty, whether I shall
continue with my slaves in Kentucky or re
move them to Arkansas? And why should
Congress say to me, "you shall not live in
Arkansas unless you first sell or manumit
your slaves?" Was the power to legislate
over that territory given for any such purpose?
Or could the application of it to such a pur
pose promote the harmony of the Union, or the
cause of emancipation, or the mitigation of
slavery, or the aggregate prosperity and gen
eral welfare of the people of the United States?
Slavery is GEOGRArniOAL. Arkansas is in the
slave latitude. Citizens in slave states will
be more inclined than those in free states to
settle there, as the people in the latter states
will be more dispixed than those of the for
mer, to settle in territories north of about 37
degrees, north latitude. Then, if Congress
will legislate on slavery in the territories,
sound policy and distributive justice and
equality would recommend that it draw a lat
itudinal line, (sny r.bout 37 degrees north lati-

SPEECH OF MR. B0BERT90M".

S7

tude) south of which slavery may exist, but
north of which it shall not. I would have no
insuperable objection to this, although I would
prefer total abstinence from all interference on
that subject. No congressional act is necessa
ry north of that line, beyond which slavery
lit left to its natural cun-ent, will never run or
long continue, and any unnecessary act of in
terference by Congress will excite jealous feel
ings, incompatible with the moral cement of
the Union.
And now, Mr Chairman, allow me to say,
that if the proposed restriction be pertinacious
ly insisted on and maintained by the majority
of Congress, that majority will heedlessly
sow wind, and may, in time to come, woefully
reap the whirlwind. They may, and I fear
will, recklessly raise a storm that will scatter
the seeds of discord over this favored land —
Dragons' teeth, whose rank and pestilential
crop, upas-]ike, may poison the vital elements

of this young, robust, and promising Union,
and finally, in the progress of desolation, may
CESTROY ITS HEART FOREVER.
Let US pause and soberly reflect before we
take this rash and perilous step. Let us take
counsel of our patriarchs of '88. Let us con
sider our memorable past, and look, with pa
triot's heai'ts and statesmen's eyes, to our
eventful future. Let us do as "Washington, and
Franklin, and Jefferson did, and would cer
tainly do again were they now here. And if
we shall all take this prudent course, I feel
quite sure that the provision, now, for the first
time, unfortunately agitated, will be rejected
by such a vote as will rebuke all Congressional
legislation on American slavery, and assure,
as far as the national councils can assure,
peace to our country, and to our Union
strength, and health, and hopeful influence
over the destinies of our race, here and else
where — ^nQV7 and evermore.

PRELECTION

On the 17th day of December, 1819, Mr. Robertson, of Kentucky, sub
mitted to the House of Representatives of tlie United States the follow
ing resolution, which was adopted:
"Iksolved, That the committee on the Public Lands be instructed to in
quire into the expediency of so altering the laws regulating the sales of
the vacant lands of the United States, that from and after the day of
, no credit shall be given thereon, and a less quantity may be pur
chased, and at a less price than is authorized by the existing laws."
After consultation, it was deemed prudent to introduce the same sub
ject into the Senate, whereby time might be saved in the discussion and
progress of a bill.
And for that purpose, Mr. Leake of Mississippi, on the 20th of Decem
ber, 1819, brought the subject before the Senate by a resolution, similar,
in substance, to that previously adopted by the other House, on the reso-
tion offered by Mr. Robertson.
Before the subject had been further acted on in the House of Repre
sentatives, a bill passed the Senate changing the mode of selhng the
public lands. That bill was reported by the land committee of the
House, with amendments striking out the provisions for cash sales, at a
minimum of §1,25 an acre, and for a sale of as small a quantity as 80
acres. Upon full argument, in committee of the whole, chiefly by Mr.
Clay on one side and Mr. Robertson on the other, those amendments
were rejected; and, on the question whether the House vvould concur in
the rejection, for which Mr. Robertson contended, the vote was^yeas,
135; nays, 19; and on the next day, 20th of April, 1820, the bill passed
by a vote of 133 to 23, of which 23 a majority were from the West. The
yeas and nays were as follows:
Yeas- — Messrs. Abbott, Alexander, Allen, of Mass., Anderson, of Ky.,
Archer, of Md., Baker, Baldwin, Barbour, Bateman, Bayley, Beecher,
Boden, Brush, Buffum, Campbell, Case, Claggett, Clark, Cobb, Crafts,
Crawford, Culbreth, Cushman, Cuthbert, Darlington, Davidson, Denni-
son, Dewitt, Dickinson, Dowse, Earl, Eddy, Edwards, of Conn., Ed
wards, of Pa., Edwards, ofN. C.,Fay, Fisher, Floyd, Folger, Foot, For
rest, Fuller, Fullerton, Garnett, Gross, of N. Y., Gross, of Pa., Hall, of
N. Y., Hall, of Pa., Hall, of Del., Hall., ofN. C, Hardin, of Ky., Haz
ard, Hemphill, Herrick, Hibshman, Hiester, Hill, Holmes, Hooks, Hos
tetter, Kendall, Kinsey, Little, Linn, Livermore, Lyman, McCoy, Mc
Lane, of Del., Mallary, Marchand, Mason, Meech, Meigs, Mercer, R.
Moore, S. Moore, Monell, Morton, Moseley, Murray, Neale, .Nelson, of
Mass., Newton, Overstreet, Parker, of Mass., Parker, of Va., Patterson,
Phelps, Philson, Pickney, Pindall, Pitcher, Plumer, Rankin, Reed, Rhea,
¦Rich, Richards, Richmond, Robertson, Rogers, Ross, Russ, Sampson,
Sawyer, Sergeant, Settle, Shaw, Silsbee, Simkins, Sloan, Slo6umb,
Smith, ofN. J., Smith, of Md., B. Smith, of Va., Smith, of N. C,
Southard, Storrs, Strong, of N. Y., Swearingen, Tarr, Taylor Tomlin-

30 PRELECTION.
son, Tompkins, Tracy, Tucker, of S. C, Tyler, Van Redssealaer, Wal
lace, Wendover, WiUiams, of Va., Wilhams, ofN. C— 133.
Nays — Messrs. AUen, of Tenn., BaU, Bloomfield, Brown, of Ky.,
Bryan, Burwell, Butler, of Lou., Cannon, Cook, Crowel, Culpepper,
Ford, Hackley, Hendricks, Johnson, Jones, of Tenn., McCreary, Mc
Lean, of Ky., Stevens, Trimble, of Ky., Tucker, of Va., Walker— 23.
Mr. R. C. Anderson, Mr. B. Hardin, and Mr. Robertson, were the only
members from Kentucky who voted for the bill.
This law was opposed as anti-Western, and when it passed, was be
lieved to be exceedingly unpopular in the West ; but with even that pros
pect of being proscribed, Mr. Robertson, for reasons suggested in the fol
lowing speech, staked himself on the law, as its author, and predicted that
time would prove it to be a blessing. And time has, long since, afExed
its approving seal to that prediction. No law ever enacted by Con
gress has been more generally approved, or has operated more benefi
cently on the Union, and especially on the population and destiny of the great
Valley of the Mississippi.
This law established the system under which the public lands hare
been sold ever since the year. 1820.

SPEECH OF MR. ROBERTSON, OFKENTUCKY,
On the Change of the System of Land Sales.
[Congressional Debate, 1820.]

Mr. Robertson said, 'that it was with reluc
tance and unfeigned diffidence he had taken
the floor, to offer to the qommittee anything
which he would be able to say on the interest
ing subject under consideration. He was not
friendly to apologetical speeches, nor in the
habit of making them, but he owed to the
committee an apology for his inability to make
them any adequate return for their kind indul
gence in rising, on his motion, to give him a
full opportunity to deliver his sentiments.
Laboring under severe indisposition, he was
totally incapacitated to do justice to the com
mittee, or to the subject which he was about
to discuss. Under this embarrassment, well
aware of the magnitude of the subject, and of
the delicate and inteiesting considerations in
volved in its discussion, and the great interests
to be affected by its decision, he would not, if
permitted to consult his feelings, obtrude him
self on the committee, but would suiTender the
floor most cheerfully to some other member
who could entertain them more profitably and
more acceptably than he could hope to do, un
der the most favorable circumstances. But
the peculiar situation in which he happened
to stand left him no such discretion. He felt
himself constrained, by a sense of duty to his
state and himself, to give some of the reasons
which would influence his vote.
Having introduced, early in the session, a
resolution, instructing the committie on pub
lic lands to inquire into the expediency of the
measure now under consideration, it was ne
cessary, lest he might be suspected of a dere
liction of duty, to defend the policy of the sys
tem he had recommended.
And having the misfortune not to be sup
ported by the co-operation of some of his col
leagues, who opposed the bill from the avowed
apprehension that it would iijjure the Western
country, and aimed a blow at its prosperity
and influence, he felt imperiously called upon,
by considerations which he could not resist, and
obligations from which he should not shrink, to
vindicate the policy of his course, and endeav
or to maintain the rectitude of his opinions ajid

Uninteresting as the desultory observations
he should make must necessarily be, he hoped
the committee would hear him patiently. No
one could be insensible to the importance of the
subject, or to the necessity of serious and so
ber consideration in deciding on it. It is a
question in which not only the government,
but the people— not only the East, but tho
West— not only the present generation, but
posterity must, in some degree, be interested.
He feared that its importance is not sufficiently
felt, nor its character and its tendencies fully
understood ^ He wo^ild not attempt to give to it any facti
tious importance. It is intrinsically as inter
esting to the people as any subject tliat can en
gage the attention of Congress during the pres
ent session. Whether regarded in its effects on
the fiscal concerns of the government, or tho
strength, prosperity, and independence of tho
West, or its inevitable moral and political ten
dencies, it had strong claims to the most dis
passionate consideration.
Having bestowed on the subject, said Mr.
Robertson, all the reflection that its impor
tance and a due respect for the opinions of
others required and his limited means per
mitted, and having oometo the conclusion that
the passage of the bill is demanded by consid
erations of policy which he thought a states
man could not safely resist, he could not hesi
tate to give it his vote, disregarding the conse-
qunnces that hadbeen threatened. He felt
bound to discharge his duty impartially, and
he should do it fearlessly.
He said he regretted that he could not co-op
erate with his colleague, (the Speaker, Mr.
Clay,) whose feelings on this subject he ad
mired, but with whose opinions he could not
concur. But he must be permitted on this, as well as
on all other occasions of public duty, to pur
sue the dictates of his own conscience and
judgment. Acting on his own responsibility,
if he was wrong, it was sufficient for him that
he believed he was right. And on this sub
ject, others might think as they pleased, but
he felt a strong conviction that the adoption of

the integrity of his motives.
He said that he was not so vain as to sup- 1 the cash system would promote, not only the
pose that he would be able to offer to the com- interest of the general government and of the
inittee any considerations in favor of the bill people of the United States, but the substantial
that had not occurred to them, but ho did hope and permanent interests of the Western coun-
and believe that he should be able .successful- try.
ly to'defendhia Djiinions with the nation, and! Mr. Robertson said, that the question is
eventjis Western etwntry. I not whether the plan for selling the public

32

SPEECH OF MB. ROBEflTbON.

lands now proposed as a substitute for the one
in operation is unexceptionable or would ef
fectually prevent the recuiTcnce of all the
abuses and diificulties which it was acknowl
edged had resulted from defects in the latter,
but only whether it be more perfect, and better
suited to the purposes for which the old system
was established.
He said that the Senate's bill, like ^ all other
human productions, however perfect in theory,
would, no doubt, in its execution, be found
liable to some objections. But these, he felt
sure, would be comparatively insignificant;
and he thought that the proposed law is not
only better than the existing one, but as per
fect as the experience of twenty years, and the
circumstances of the times and the country
would enable Congress to make one.
He said, that in opposition to the bill, it had
been urged that the present system is a vener
able one, and not to be changed unless practi
cal men should pronounce the change neces
sary. He did not profess to be a very "practi
cal man," or to know more on this subject than
others; but he thought that^ no one should be
denounced as a rash or an unskillful innovator,
who should, after an experiment of twenty
years, endeavor to correct abuses and prevent
difficulties which it had disclosed, and which
might produce consequences, which, if not
averted by timely interposition, might embar
rass tihe government and disturb society. He
thought that if the system which had been in
operation for twenty years were known to be
defective, it should be amended, and that if
the argument of innovation were applicable
now, it never would be inapplicable. As to
"practical men," he said he did not precisely
comprehend its import. But he supposed that
those who, had observed and felt the operation
of the present system, from its adoption until
now, might be considered sufficiently "practi
cal" for all the purposes of the bill; and, al
though he was unwilling to adopt the opin
ions of others, merely because he might con
sider them "practical men," he would tell the
gentleman from Tennessee, (Mr. Jones) that
he believed the most practical men in the
United States, on land subjects, are in favor
of the change proposed in the bill under con
sideration. He would ask, who is more
"practical" on all subjects that concerned the
public 'lands than a late Senator from Ohio;
(Mr. Morrow) and whose opinions have and
deserve more universal influence? He had
been called, by a Senator from Kentucky, (Mr.
Crittenden) the Palinurus of the Senate. And
is it so soon forgotten, that ho wished to make
the adoption of the system now proposed the
last act of his long political life? That he felt
and avowed the necessity of reforming the
present system? And, said Mr. Robertson,
the voice of the people will applaud him for
his patriotic purpose.
By the law now in operation, said Mr. Rob
ertson, the public lands are sold in quantities
not less than one hundred am,! sixty acres, and
at a price not less than two dollars per acre,
one-fourth (obe paid at Ihe'tim" of sale, and

the remainder iu four years, with interest,. if
not punctually paid, and the land forfeited, if
the whole consideration be not paid in five
years. The bill before the committee pro
poses to sell the public lands for cash, at a
price not less than one dollar and twenty -five
cents per acre, and in tracts containing not
less than eighty acres.
The first system, he said, having been tried
twenty years, is ascertained to be defective.
The last is intended to remedy the defects of
the first, which, it is believed, might be ef
fectually and safely done. The fiirst, it is true,
had been prepared with great care, and was
considerecf, when adopted, better adapted than
any other that could then be devised, to the
ends for which it was instituted. These ends
were, 1st. Revenue, and 2nd. The promotion
of the general ,and substantial interests of so
ciety, by extending population and encourag
ing industry, and the domestic, Social, and
civic virtues. But, said he, consistently with
these purposes, it is ascertained that it cannot
be fully executed. The experience of 20 years
had demonstrated its inefficiency and its ten
dency, from abuse and accident, to conse
quences unforseen and mischievous. Instead
of proving a sure resource of revenue, he be
lieved that, 'ere long, the ti'easury could not
rely no it. Instead of meliorating the condi
tion of the poor, it had often been an instru
ment in the hands of the rich, by which they
were enabled to opp less that class and enrich
themselves. Instead of strengthening the
Union and em-iching the country, he feared
that, if persisted in, it would tend to weaken
the one and embarrass the other; instead of in
creasing the resources of the fl^est, he believed
that it tends to their subduction; in short, he
believed that it could not be continued in op
eration, without creating the most unpleasant
embarrassments iu the government and among
the people. That it was defective, he said, he
believed all acknowledged. But, in regard to
the nature and extent of its defects, their opera
tion and ultimate tendency, and their reme
dies, there was a diversity of opinion. How
ever, for all his purposes, it would' only bo
necessaiy to show one radical defect, and that
the proposed substitute would remedy it,
without producing any bad effects that legis
lation could prevent.
This radical defect, he said, he found in the
credit given to the purchaser, and he believed
that the most serious .diificulties that had oc
curred, or would occur, under the operation of
the credit system, might be ascribed to the
credit. Mr. Rebert son said that ho should not ven
ture to state that the revenue had been dimin
ished l)y the sale of the public lands on credit.
Itwas nnpov.ible to ascertain, with certainty,
whether there had been any diminution in its
aruoiuit, as the cash sy.-,le'ra had never been
tried. But ho would venture to predict'lhat
there wiiuld, in a few years, be a lo5s ineviia-
bly, unless the bill before the committee should
become a law. It was well known, he said.
that app1ic!tion had been made, by the' pur-

ON THE LAND BILL.

»3

phnsers of public lands, for many years succes
sively, for indulgence, and that laws had been
repeatedly^ passed, exempting from forfeiture
lauds which had been purchased on credit,
and for which the purchasers bad failed punc
tually to pay. This kind of indulgence had
almost become a. matter of course. It had
been extended, with a few exceptions, annu
ally, for more th.an ten years. He believed it
had never been refused, and he doubted wheth
er it ever would be. A bill had been engrossed
this morning, extending thfs indulgence one
year longer, and it is obviqus that a similar
law must pass at the next session, and for
many consecutive years, or the debtors for t'h'e
public lands must be subjected to great dis
tress, and many of them to ruin. Mr. Robert
son said that he did not wish to be under
stood as intimating that the indulgencies here
tofore given were unnecessary or improper; on
the contraiy, he was sure that they had been
proper, and that it would be necessary to re-
hew them. But he thought that that pqlicy

remaining three-fourths of the consideration.
Under the most auspicious circumstances,
some of the purchasers must unavoidably
become delinquent. But if misfortune or ca
lamity should fall on the publip (tebtor, or tho-
currency should become deranged, or tie sea
sons unpropitious, or the market for agricultu
ral products dull or unprofitable, how would
the debt be punctually discharged? But, said
he, add to these considerations the exorbitant
prices which the advantages of credit tempt
the spepulatqr to promise, (which is the most
fruitful source of accumulation) and which it
is impossible that he can ever pay, and how in
evitable is the growth of the land debt? It
must continue to increase as long as credit shall
be given.
Such a system, said ho, liable to so many
contingencies, must be intrinsically defective.
It could not long be continued in operation,
without defeating the ends of its institution.
It could not be executed. He would not say,
if persisted in, it would eventually create a
must be unwise which subjected the national I debt so large that it never couldbe paid. But.

legislature and the people to such vexatious
embarrassments, and that any system which
required such temporary and mitigating expe
dients in its operation, must be radically de
fective. Tho necessity of continued indul
gence indicated very clearly the necessity of
changing the system which produced it. In
deed, said he, every argument that has been
or could be urged in favor of indulgence, tpnds
strongly to show the propriety of refusing, in
future, that credit which has rendered such ar
guments proper and necessary.
He said that he had frequently heard it
stated, and his friend from Tennessee, (Mr.
Jones) had reiterated, that the accumulation of
the debt for the public lands, and the inability
of the debtors lo discharge it. resulted from
-temporary and accidental causes, and that it is
not probable that the indulgence thereby ren
dered necessary would lung be required.
He would uot, he .said, enter into an exami
nation of those circumstances alluded toby tho
gentleman in support of that opinion, because
their character rendered a minute investigation
of lh(.m unnecessiuy. He thought it oasily
demonstrable, tljat the e.ausc.s of the accumu
lation of the debt were neither accidental nor
temporary; they existed in the nature of the
system, and would continue to produce their
results, as long as it should be kept in opera
tion. The circumstances mentioned by the
gentlemen may have had some influence on tho
extent of the increase, but, if they had never
occuiTed, the debt would have grown, and in
dulgence ha\e been necessary. The cjebt had
been gradu.ally aceumnlated for many years —
in goiid times, and in bad times, and under all
circumstances. It could not reasonably bo expected that a
man, who slniuld be able to pay only the first
installment fur a tract of l;ind, could transplant
/ himself and fainilyin the Western wilds, o|ieu
a farm, Viulld his houses, support his family,
and be able in Umr years, to save, by l,he cubi-
valion of the soil, an much as wmih] yiuy tho

he would say, and was bound to believe, that
the debt would become so much augmented,
that its entire collection would be difficult, re
mote, doubtful and perilous. And he should.
not attempt to disguise his apprehension that
it never would be entirely collected; or, if col
lected, that it would be under circumstances
which would prove that it would have been
better that it had never been either contracted
or coerced. Ho felt compelled to believe, ^hat
if the credit system be continued much longer,
the govprnment would necessarily lose a great
partoftjie prpceede of sales, or would have to
secure tliem q.t'the expense of the best interests
of the Union.
He was unable to perceive how such a di
lemma could be avoided. The people could
not pay the debt now due; that debt must in
crease; the causes are permanent, and the effects
inevitable. When, and how, he asked, would
it be collected? If it will be diflicultor impos
sible to collect twenty-two million, how niuch
more difficult will it be to collect, with safety,
one hundred million? Will you refuse further
indulgence, and thereby subject the land to for
feiture? Then, passing by oiher consequences,
you distress and ruin many of the purchasers;
and, in that event, it will have been unfortu
nate for them that you gave them credit. If
y(]a refuse indulgence, confusion, disaffection,
and oppression will follow; if you grant it, the
government loses revenue. Gentlemen might
cIkkhc their alternative. But it is certainly thp
province of an enlighted policy to prevent this
dilemma, when it might be possible, by oppor
tune interposition. This, he thought, is now
practicable; but no one could say how long it
would be so. And if, by such interposition,
tho government should sell its lands for 34
cenfa per acre less, (the diiference between
cash jKiyments under the two systems) it will
be more than compensated, by cert.ainly iu
getting the whole amount of sales.
Mr. Robertson said, that it was useless to
talk to him of the security the government pos-

34

SPEECH OF MR. ROBERTSON.

sessed, by holding the title to the land. This
security is only nominal; for while, by holding
It, with a heavy and ruinous debt impeuding
over your land debtors, you keep them com
paratively in a state of dependence and tenan
cy, you will, at the same time, bo unable or
unwilling to evict them, and sell their houses
to hungry speculators and strangers. But, if
you should so sell, it would be an event that
might bo deeply felt, and long deplored.
The home of a freeman, said he, is dear to
his heart. It is sacred; it is the centre ,of his
affections and of his happiness; it is the sanc
tuary of his wife and children. It is conse
crated by being his home, and often endeared
to him by being the birth-place of his little
ones. Will you venture, for a paltry consider
ation, to tear this from him, and thereby strike
into wild and discordant commotion, all those
tender strings? He felt, he said, that he was
touching a delicate subject, on which it would
be painful to dilate. He would, therefore, not
pursue it, but content himself by having hint
ed at it, with barely opening the door to the
view of some of the consequences that would
attend the credit system.
Mr. Robertson said, that all his observation
and experience taught him to believe that any
permanent system of credit, national or indi
vidual, is pernicious. It is unnatural and se
ductive, and had generally brought on those
concerned in its operations, distress, and not
unfrequently ruin. It is nationally a Pandora's
box. What else, he asked, was more fruitful of
the distress with which the people of the
United States are now so much afiiicted?
And what else is the cause of the magnitude of
the land debt, and its concomitant embarrass
ments? Would not the people now be inabet-
ter coudition, if it had never been incurred?
And would not the Western country, particu
larly, be more prosperous and independent, if
credit had never been given on the public
lands? Would it not be, in relation to the gen
eral government, out of debt?
But, in addition to the objections he had
mentioned, he said there were many others to
the land credit. It deceived and embarrassed
the purchaser. It compelled him frequently
to promise too high a price for his land; it
tempted him to go beyond his means; it
placed the occupant in the power of the non
resident speculator, and subjected the pur
chasers, of every descripiton, to the control of
circumstances which they could not foresee or
avert, to the caprice of fortune, and to the
mercy of government.
The purchaser, said he, if there were no
credit, would not have to complain of the vi
tiated paper currency, nor to reproach the gov
ernment with refusing to receive of hiin such
depreciated paper as he had been compelled,
ill his transactions, to receive; nor would the
capitalist be able to unhouse the poor man,
with family, who had enhanced the value of
the soil by improvements, and who, without
his fault, had become unable to pay the whole
price for it punctually; nor would the ears of
Conu'ress lie assailerl with reports of nefarious

speculations, in fraud of the government, and'
to the injury of the poor. Look, said he, to
Alabama. What, but credit, was the cause of
the exorbitant prices bid there for land, or of
the great speculations that had been made
there or attempted? Would not many, who
purchased there, be unable to pay? "Was not
tlie magnitude of that debt alarming? Ho
did not, lie said, wish to pursue this part of the
subject; ho had no doubt he was sufficiently
understood. Mr. Robertson here observed, that the ob
jections to the credit system, which had most
influence with him, were of a character differ
ent from those which were merely financial or
personal, and of infinitely more consequenco
in view of wise policy and enlightened patri
otism. They grew out of the moral and polit
ical tendencies of credit between the people
and their government. This was, he said, an
embarrassing topic; hut his duty would not
excuse its pretermission. He could not avoid
it. It lay across his way. He should, there
fore, give his opinion in regard to it without
disguise. History, and a knowledge of the nature of
republican government, proved, that the rela
tion of creditor and debtor, ought not to exist
between the government and the people. It
begets obligations, and interests, and feelings,
incompatible with the genius of free institu
tions. If the citizen must stand in that rela
tion to his government, it is best that he should
be the creditor. If he stand in the attitude of
debtor, his interest may not be the interest of
the government, and his feelings may not al
ways be in accordance with his duty. But,
the objections to such a relation are multiplied
and strengthened when it is permitted to exist
between the government and an entire commu
nity, or a large portion of the whole popula
tion. It is then that the government may be
compelled to feel its own impotency, and tho
supremacy of those passions which it was in
stituted to control; and it is then that it may
be in danger of degenerating into a govern
ment of men, and notof laws; of passions, ,and
not of principles; of arbitrary force, and not of
enlightened public opinion.
He said, that it had been very seldom the
policy of governments to encourage or permit
this odious and dangerous relation permanent^
ly; and most of those that ever did, had left
striking memorials of its impolicy. In Great
Britain it exists to a great extent; and there, ii
is true, it is not deprecated by those who ad
minister the government, but is considered by
them the bulwark of the constitution. It for
tifies that g(n-ernnieiit, by making it the inter
est of the opulent and iuiiuential to maintain
it. In this mercenary way, public sentiment
is stifled, and instead of being endangered,
the government is almost impregnably en
trenched behind wealth and aristocracy.
Therefore, in England, the public debt is con
sidered by many a public blessing.
But, for the same reasons, he ticlieved that,
in free governments, it would be considered the
greatest curse. What would be the condition

ON THE L.VN-D BILL.

36

yf England, if, instead of being the debtor, she
was the creditor of her subjects? Who would
then be the ministerial champion? Who would.
then preserve the government from revolution?
Mr. Robertson said, that he did not mean to
argue that the creation of a large land doht
would eventuate in the disruption of our hap
py confederacy; but its tendencies would lie
towards disunion. If, said he, in England, it
is necessary to the existence of the govern-
-tnent, that it should be deeply indebted to its
subjects, he would submit it to serious consid
eration, whether, in the United States, the
Union would be strengthened or cemented by
permitting the citizens to be largely indebted
to the goverilment?
If, ill England, the indebtedness of the peo
ple to the government would endanger its sta
bility, would it be wise or safe toinaiutaiu the
converse of the proposition here?
He thought no argument could be derived
from the peculiar character of the Ameri
can institutions or people, sufficiently strong
to render it prudent policy here, to encourage
or permit a large body of the community to be
come largely indebted to the government. On
the contrary, he believed that a practical or
philosophical view of the peculiar contexture
of the American institutions, would show that
such an experiment would be as dangerous
here as elsewhere. In this free country, said
Mr. R., public opinion is the substratum of the
political fabric, and the attachment and confi
dence of the people constitute the cement
which increases its strength and preserves its
symmetry. Without the support of the first, the whole
superstructure is prostrate; forfeit the last, and
the fairest and most sacred temple of liberty
on earth is in dilapidation. It is not inde-
structable, and depends more on moral than
political principles.
The peculiar conformation of the federal
government — being "imperium in imperio"- —
enhances the value of public sentiment, and
renders it more necessary to the stability of
constitutional authority that popular confi
dence should be preserved, and the whole mor
al strength of the body.politic kept undivided
on tho side of the Union. The union of the
states, he said, was tha first object of the con
stitution. Nothing should be encouraged that
could weaken its ties. They are few aud weak
enough. 'Local feelings and sectional jeal
ousies are already sufficiently strong and nu
merous. He feared it might be unsafe to in
crease them; it might do mischief; it could not
possibly do good. He repeated, that he did
not mean to insinuate that the Western debt, if
augmented to even one hundred million, would
destroy the Union. He could not utter such a
sentiment. But he did mean to say that such
a debt would inevitably tend to inspire feel
ings and generate interests, at [war with the
fundamental principles of the Union. He
hoped that there would always be too much
American virtue and good sense to permit any
circumstances to produce such an awful catas.
trcfihe as dissolution.

But he was an unsafe guardian of tho consti
tution, who would do or permit to bo done,
while he could prevent it, anything that might
provoke any attempt,, or even inclination, to
wards its destruction. Mr. Robertson said he
felt devoted to Western interests, and had
great confidence in Western virtues, moral and
political; but, on a national question, which
should be decided on national principles, ho
would be guilty of iucivism if he were to act
under the influence of local or sectional feel
ings. He was not so Godwinian in his opinion
of human nature, nor so Utopian in his politi
cal principles, as to legislate on the supposed
perfectability of the one,^ or practical .infalli
bility of the others. Legislation should be
adapted to men and things as they are, and
every legislator should regard the passions, as
well as the virtue of human nature. Why is
it, said he, thiit manners govern laws? "Why
was it that Solon, when asked whether his
laws were as perfect as he could make them,
replied, that they were as good as the people
would bear?
Mr. Robertson said, that the people of the
West are attached to the general government;
he did not wish to see that attachment alien
ated. They are patriotic, and he did not wish
to have that patriotism chilled by any system
of public policy, which, he feared, if persisted
in, might have that effect. Their feelings,
said he, are with the Union. Do not provoke
indifference; do not excite their jealousies or
their fears, but encourage their confidence by
deservinj' it. Then, indeed, they would al
ways be found among the first in your .councils
and in your fields. Then do not weaken, but
strengthen the ligaments that bind the body
politic, and you will diffuse health and vigor
through the system.
But, said he, how different m.ay be its con
dition, if, by continuing the credit system.
Congress should compel the West, in self-de
fence, to oppose in a body the passage, or re
sist the execution of laws which it may be the
interest and wish of the East to enact and to
enforce, or should give the East an engine with
which it might annoy and oppress the West,
or should distract and pervert the public coun
cils, and array the East and the "West against
each other. Should this state of things ever
occur, (and that it must sooner or later, under
the present system, if continued, seemed to
him as inevitable as the decrees of fate) no
man should shut his eyes to the consequences
that must follow. He would not portray them,
but the effect that would be produced on tho
feelings and policy of the West, anflon.fhe
legislation of Congress, not to look at ulterior
results, must be seen by all who are ac
quainted with human nature, or the history of
the world. Y/ould not the "West be interested
deeply in indulgence, while the of;her members
of the Union might be inclined, or even ne
cessitated, to coerce payment? Might not a
Western party be created, (and w-ould it not be
formidable?) with anti-national interests and
feelings? Would not the people of the West
expect and require indulgence? Might>4hey

36

SPfeEck OF MR. ROBERTSON,

not be willing or compelled to make sacrifices
to obtain it? If opposed, might they not be
exasperated? If defeated, might they not feel
it their duty to resist? Might not indulgence
become a prominent feature in Western policy?
Might not members of Congress be elected
solely with a view to the indulgente? Might
they not be willing to make legislative com
promises to attain the only end of their elec
tion? Would not the East thus have an ascen
dency; almost irresistible, over the West?
From such a humiliating and perilous pre
dicament, Mr. Robertson said he would, while
it was yet possible, rescue the Western coun
try. The mammoth land debt, if permitted to
grow, would bo sufficiently caldmitous if it
should only lead to some of the consequences
at which he had hinted. Such consequences
it was the duty of every citizen to avert. He
knew, he saicl, that he would be told, that tho
people of the United States are too virtuous
and enlightened to permit a sectional debt,
however large, to influence their political feel
ings or conduct; but he was ndt yet prepared
to believe that human nature is so far sublim
ated ih the United States as to be exempt from
the influence of interest, passion, or ambition.
He said, that if any illustration were necessa
ry to show the effect of a land debt on legisla-
tiofi and local parties, an experiment had been
made in Kentucky, which furnished a very ap
posite eScmplification
In that state there was a large body of the
people indebted to the government for lands
purchased south of Green River, on credit.
The debt had been due many years, but at
every session of the legislature, indulgence had
been granted since the debt became due.
Members had been elected to the legislature,
with instructions to obtain a further indulg
ence. A promise to procure it, or the belief
that they "would make all necessary efforts,
was generally a "sine qua non" to their election,
The Green River country had become very
strong, and its indulgence had become a sort of
party question — a .political hobby. It is be
lieved thStithas frequently been the subject of
"legislative compromises" — the consideration
for other laws, and other laws the consideration
for that. He believed that it is now consider
ed almost a matter of course and of right. He
had no :doubt that it had frequently been
.granted against the free consent of the legisla
ture, and nad been the means of Joassing latvs
that otherwise would not have been enacted.
That state had not yet gotten the debt in; he
¦had douTsts whether it ever would — the pros
pect bding noTjetter now than it was many
years dgo.
He said, that he believed that tho Green
River indulgence had been sometimes necessa
ry, and :he did not know that it is not, even
yet, proper; but he had alluded to it to show
the effect of a land debt on revenue, on party
elections and on legislation. If, said he, such
have been the fate and effects of a Green Riv
er land debt in Kentucky, what must bo the
consequences in tlieUnitcd States of a Western
vlebt? Are the citizens south and north of

Green River loss united in interest and feijlmg
than the people west and east of the Alleghany
mountains? Are the citizens of Kentucky
less attached to their State constitution than
the western people are to the general govern
ment? He said, that the nature of the confed
eration would prove that a federal land debt
must be infinitely more mischievous than any
state debt, under any circumstances, on ac
count of the magnitude of the debt, and the
conflifction Of political interests, and feelings,
and obligatichs, not merely in the West, but
in the East, and the North, and the South.
He said, that if he should be compelled to
select any portion of the population of the
United States to defend the Union, in any
emergency, he should look to the West.
He cbncurreJ fully with his colleague, (Mr.
Brown) that the people o*' the West are as much
devoted to the general interests of the Union,
an4 would make as many sacrifices to maintain
them as any other portion of the American
population; and if it would not be deemed in
vidious, he would say more. They have giv
en many and signal proofs of it. But this, he
said, is no argument in favor of the credit sys
tem — a system that would, in its ultimate ten
dencies, conflict with those national feelings
that now animate them — but on the contraiy, it
is a persuasive one against it. Having now
the warm and cordial support of the "West, it
would not be wise to persist in a course of
measures that must inevitably tend to stifle
those moral impulses which prompted to it.
He would invigorate the arm, and distend the
heart of Western patriotism, and not paralyze
the one and contract the other, nor nerve the
one and steel the other against the common in
terests. He would repeat, that he did not be
lieve that, if the land debt should increase to
any amount, the Western people would resist,
by force, its collection, or desire the subversion
of the government to avoid its payment. But
he asked, if it could bo prudent, in a govern
ment depending for its existeuee and sujjport
on public opinion, to make it I he interest of the
people to embarrass its regular operations, or to
resist its laws? And, said he, might not a
large debt, hanging oviT one moity of the
nation, create, throughout the whole, interests,
and feelings, and conduct, not calcuhated to ad
vance the happiness of the people, or strength
en constitutional authority?
Every government that ever had to encoun
ter a large popular debt, had felt it to be a pa
tent adversary. W"hy did Lycugus and So
lon abolish all debt in the organization of their
systems of government? \\'hy did the Romaii
Plebians, after being oppressed by their Patri
cian creditors, raise the standard of revolt, and
retreat to tnons sacer ? And why did the Patri
cians ultimately submit? And what were the
progress and effects of the long struggle? If,
said he, the land debt be permitted to accumu
late, and its enforcement be attempted, tho West
may not resist; it may not murmur; it may not
evince sensation, even; but the debt might not
be collected, and ho did not wish to see the
oxperiiiient tried. There is ro necessity to

ON THE LAND BILL.

37

make any experiment on tho temper of the
West. Western freemen would never willing
ly "give up the ship." They would nevt'r se
cede, unless disfranchised by those who ought
to be their friends; and, if they ever should
retreat to the sacred mountain, he hoped there
Vould be one Menenius and one Valerius
-a-'nong them, who would be able to rally them
4gain under the standard of the Union.
But it could not be the interest of the United
States to persist in the system which could
produce any consequences which it is the duty
of every enlightened and patriotic statesman to
prevent — a system that would engender dis
cord and party feuds, and excite jealousies and
discontent, and perhaps insubordination.
Every consideration which could operate on
his mind, he said, strengthened his conviction
that the credit system could not be executed,
or, if executed, that it would do much mis
chief. In its execution, it would defeat some
of the ends for which it was established; and
he thought it required no argument to show
that a system, whose operations are incompat
ible with its 'designs, and subversive of the
first purposes for which a government was in
stituted, and which counteracts the policy of
wise legislation, ought to be abolished. That
the credit system is such an one, he had en
deavored to show. It ought, therefore, he
thought, to be repealed, if one less exception
able could be substituted. He thought the
bill under consideration furnished such an
one. It remained, therefore, for him to offer
some reasons to show that the mode proposed
is better than that in operation.
Mr. Robertson said, if he had been success
ful in his attempt to prove that the credit sys
tem is defective, because it is a credit system,
it would be unnecessaiy to consume time by an
effort to show that the cash system will be
preferable, so far, because it will be a cash
system. As the strongest general considera
tions which, in his opinion, conduced to show
the superiority of the cash over the credit sys
tem had already been anticipated in his en
deavor to exhibit some objections to credit in
the foregoing part of his argument, he would
not reiterate them. If he had shown the de
fectiveness of credit, it would necessarily fol
low that the proposed system is, quo ad hoc,
preferable. Upon that ground he was willing to rest the
comparative merits of the two systems, so far
as it might depend on the two leading and
characteristic features of credit ond cash.
These are so important and controlling, that a
comparison of the more minute traits would be
unnecessary; because, whatever might belts
results, they could have no influence in the
\lecision. But, if such a comparison could be
at all material, he was sure it would result in
showing the superiority of the proposed over
the existing system, in every feature in which
they differ.
The principal of these, in additidn to credit
and cash, is the minimum quantity of land
and of price. The reduction of each in the
bill unckr consideration is intended to remove

the objections that had been urged to tho sub
stitution of cash for credit. And in this it is
singularly .and completely successful.
He thought that it would be fair to conclude
that the bill ought to pass. That it ought,
there could be no doubt, unless objections
could be urged to it more formidable than those
to which the existing law is liable, or argu
ments against it stronger than those which
were pressed against the latter.
He said he had heard only two objections to
the proposed system. 1st. That it would op
press the poor man, by giving the capitalist
and speculator an unreasonable and unjust ad
vantage over him. 2nd. That it would retard
tho population and diminish the influence of tho
Western country. He believed that no other
objections that are even plausible had been or
could be made, and these he considered by no
means formidable. He thought that a very
slight examination would be sufficient to show
that they are both evanescent. He expected
results from the cash system, in its operations
on the poor, the rich; and the Western coun
try, the opposite of those apprehended by its
opposers, and which he should endeavor brief
ly to exhibit, in the coursp of the notice ho
should take of the objections.
But it should not, said Mr. Robertson, es
cape notice, that if the objections are in them- •
selves true, they constitute no sufficient argu
ment to prevent the passage of the bill; for, if
the interests of the government and of the body
of the people require its passage, it would be
unreasonable to demand or permit its rejec
tion, merely because a particular .class of tho
community or district of country might be in
jured by it. Otherwise, all legislation would
not only be nugatory, but unjust; because
every general law, however mucli it may pro
mote the interests of the majority, must be in
compatible with some individual rights or in
terests in society. Therefore, the political
axiom. — that private interests should be sacri
ficed on the altar of tho public good — would
be a sufficient answer to the objections, if they
were founded upon correct hypotheses.
But, hesaid, if it were material to take more
particular notice of the objections, he thought
it was as nearly demonstrable as any moral or
political proposition, from its nature, could
be, that the cash system would not only dimin
ish and embarrass speculation, but promote
the interests of the poor, and the permanent
and substantial welfare of the Western coun
try. He believed that no other system would tend
more to those results, unless it should be one
by which the public lands should be gratui
tously distributed; and, for such an one, he was
unwilling to believe that there would be any
serious advocates. If there were any such, he
would recommend to them the immediate abro
gation of the credit system, and the substitu
tion of an Agrarian law.
But, said he, the public land being a com
mon fund, and Congress being its depository,
it is their duty to dispose of it in such a man-
ineras to promote the common interest. They

38

SPEECH OF .MR. ROBERtBON.

are bound by their trust to sell it, and to those
who can pay for it. And he thought it could
not be matter of complaint that Congress, and
not any particular class of private individuals,
should prescribe the terms of sale, and that
such terms should be offered as would pro
duce the most general good. Neither the poor
nor the rich have any right to complain, if
credit should be refused. If they are unwilling
to purchase the public lauds on the terms pro
posed, they will retain their money, and the
public its" lands, and no injury is done to
either. By the poor, he said, he understood, as re
gards the argument, not that class of society
who are in a state of pauperism, but those who
are, comparatively, iu a state of mediocrity, and
are unable to purchase land for any other pur
pose than to occupy it. Under the credit sys
tem, a man who has no money cannot pur
chase; to be able to buy public lands he must
have funds, and as much as will be required
by the cash system. Gentlemen, he said, had
argued against the bill as if they believed that,
under the credit system, a poor man, without
money, could purchase a home; and that, there
fore, he will be excluded by the bill from all
participation in the purchases of public lands-.
But he is already excluded. Who can pur
chase now, that may not buy, and as easily,
under the cash system? Who will be excludeii?
Not the maij without money; he cannot pur
chase now. Not the man who is now barely
able to pay the first instalment for one hun
dred and sixty acres, at the minimum price,
for he would proceed to show that the same in
dividual might purchase, with more -certainty
and more to his advantage, under the pro
posed system.
Under the existing law, a man cannot. pur
chase for himself a home, even if there were
no competition, unless he be able to advance
eighty dollars; and if he be a prudent man, he
will not purchase at all, if that eighty dollars
be the whole amount of his pecuniary re
sources; for, before he can procure a title, he
must pay two hundred and forty dollars mora,
in three installments, or forfeit his laud, with
his 80 dollars advanced, should he be unable
to make punctual payment of the whole price.
If the credit should tempt him to make the
purchase, under the expectation of making
the money to discharge the debt he incurs, or
of indulgence if he should fail, he subjects
himself to all loss and emban-assment that may
result from accident or from tho fluctuation and
depreciation of the currency, and places him
self in the power of the usurer, the speculator,
and the government. The land would not be
his, and he could not be considered an inde
pendent citizen in the sterling import of those
words. The little pittance he may, by indus
try and economy, be able to save, he cannot
consider his own until he sh.all have paid for
his land ; the land is not his uu til he can get a
patent He may bo dependent on the capit.al-
ist for money to procure tho title and save his
home from forfeiture, or must supplicate the
indulgence of Congress; and, at last, after

having removed his family many hundred
miles, and improved land which he considered
his own, eitlier the hungry speculator may
take it from him, or the humanity of the gov-
ernmentmust interpose. And if he should die
before he shall have made complete payment,
h.- leaves his helpless family in a strange and
foreign land, without a home.
But the credit system induces the specula
tors, >as well as others, to bid a higher price at
the sales than would be given in cash, and
frequently more than the value of the land.
Hence the poor man, with his eighty dollars,
is almost entirely excluded from the sales. Ho
is afraid or unable to compete with the rich
man, or with the speculator. The consequence
is, that the rich and adventurous monopolize
the best land, and leave only the refuse to th«
other class.
The speculator buys as much land as he
can make the first payment for, under Jtho
expectation of being able, before the expira
tion of five years, to sell it for a higher price.
He has, by law, five years within which to
make this experiment, and as much longer as
he can prevail upon Congress to indulge him;
henice, it so often happens that the first is the
last payment, and that indulgence becomes so
necessary and so frequent, and that the laud
revenue fails. If the purchaser for specula
tion can, while the government will indulge
him, sell the land to a man who wants a home,
butWiis not able to bid against him at the pub
lic S'cile, he will sell on a long credit, at a
higher price than he promised — a much high
er price — and by transferring his certificate,
will interpose the poor man between himself
and the government, with a liability to pay
the remaining installments, with all the accu
mulation of interest, and With all other liabil-
ties incident to the credit. If he cannot sell for
more than he promised to give, he repeats his
application to Congress for indulgence, and
they continue to grant it. But, if it should be
refused, and the land forfeited, the adventurer
will only h.ave lost the amount of the first pay
ment which he had advanced.
What better terms can the speculator, said
he, desire? What can more encourage specu
lation, or oppress the poor and honest man,
than the credit system? It increases the facil
ities and inducements to speculation; it in
creases the means and number of speculators.
This is observed every day. Alabama speaks
a_^language that cannot be misunderstood —
$70 au acre promised, never to be jjaid!
But, said Mr. Robertson, the cash system
now offered is better for the honest purchaser,
not only because it would enable him to get
land Avith more certainty and security, and
bettor land, but because it would put it in his
power to get it cheaper, for two reasons: 1st.
The minimum is less; and 2nd, land will sell
on a credit for a price higher than the cash
value, by more than the interest of that valua
Under the proposed system, a man can pur^
chase eighty acres of land, if he can pav one
hundred dollars; he gets his patent, ancl has
tt home. He is nn Independent citizen, not is

ON THE LAND BILL.

30

the powar of capitalists or the govermncnt, in
regard to his title. Even if credit would not
enhance the price, it is, nevertheless, a fact
worthy of notice, that under tho cash system,
a purchaser can buy a home for only oiie-fifth
more than the fourth of the credit price, which
fourth must be advanced. It is true, he will
only get half the quantitv, but he does not
give half the price, ani tho sniallnoss of
the tract is no objection, but a strong argu
ment in favor of the proposed system, as it re
gards the poor — for thereby a man Avill be en
abled to procure a home, who could not, or
ought not to attempt it now, and those who
can purchase more than the minimum quanti
fy will have the liberty to do so.
But the best land is sold at the public sales
to the highest bidder, and the credit would
cause it tosell forahigher price than it would
for cash, by at least one-fifth. This is the dif
ference between the price of eighty acres pur
chased under the cash system, and the fourth
of the price of one hundred and sixty on cred
it. The consequence is, that a man will be
able, under the proposed system, to buy eighty
acres at public sale, for the amount of only
one-fourth of the price of one hundred and
sixty on credit. In the one case, the pur
chaser has parted with a certain sum of money,
and obtained in exchange a title to eighty
acres of land; in the other, he has -disbursed
the same sum, as one-fourth of the price of
one hundred and sixty acres, to which he has
no title, and for whicli he cannot obtain a pat
ent until he shall have paid the remaining
three-fourths. Which would the poor, the hon
est, the free man prefer? Could there be any
hesitancy in the option? Would he not choose
the cash system? And would not the specula
tor, for the same reasons, prefer the credit sys
tem? But, said Mr. Robertson, it had been urged
by the gentleman from Tennessee, (Mr. Jones)
that, by requiring cash, too much power is
given to money; that the capitalist will buy
all the good land, because the poor man will
be unable to bid against him beyond the small
sum he may have. This argument, he said,
was more plausible than sound, and had been
already anticipated and answered. But the
imposing manner in which it had been exhib-
cd entitled it to a direct reply.
Money, said he, will have power as long as
it is money. It is that which gives it value.
Its power cannot be destroyed without destroy
ing its value. But he felt sure that its influ
ence in relation to the public land and its pur
chasers, will not be augmented, but greatly
diminished, by the passage of tie bill under
consideration, in the reduction which it would
effect in the number of speculators and in the
extent of their purchases, in a ratio of at least
three to one, and iu the reduction, in a corres
pondent ratio of the number of other purchasers
and the extent of their purchases. Under the
credit system , a speculator, with fifty thousand
dollars, will, at the minimum price, purchase
one hundred thousand acres of land, the
amount of his money being sufficient to com

plete the first insallmeiit on that quantity.
Under the cash system he will bo able to pur
chase only forty thousand acres. The sanio
quantity of money, then, will purchase almost
three times as much land under the credit, as
it Avill under the cash system. The ad
vantages of credit to the purposes of specula.
ti(Hi will give the same sum the power to pur
chase the full triple quantity. To purchase
one hundred thousand acres under the cash
system, there will be required five men with
$25,000 each. Under the credit system, it will
be purchased by two men with the same sum.
If credit did not increase the price, then two
speculators can monopolize as much land un
der the credit system as five men under tho
cash system; and the same quantity of money
in circulation would, therefore, increase the
number of speculators, and thp extent of their
purchases, in the proportion of five to two, by
allowing credit; .and, as before stated, the ef
fect of credit would swell the number to the
proportion ofthreetoone. Can any one, said
he, fail to perceive the effect which credit has
in increasing the number and power of specu
lators, and thereby the power of their money?
Will not the poor man have a greater number
of competitors? Will there not be less land
left for him to purchase? Aud will not his
chances of buying good land be diminished?
And would not the number of purchasers for
use be greatly diminished, and thereby the
population of the West be retarded? Under
the credit system, the capitalists can monopo
lize, with the same sum, more land than they
could for cash, in the proportion of a hundred
to forty. The capital, then, which would pur
chase 100,000 acres on credit, would, on the
cash payment, leave 60,000 acres unappropri
ated, which the settlers could purchase, with
out competition with the non-resident monied
men. As to that part of the argument which
assumes that, in a contest for a particular tract
of land, an advantage is given to the rich over
the poor man, by requiring cash, he said that
the same objections would apply with equal
force to credit. For if the poor man could not
compete with the rich man, after he had gone
in his bid to the extent of his funds, when tho
whole amount is to be advanced, he must be in
tho same predicament if only one-fourth of the
amount be required. In the latter case, after
he had been forced up by the capitalist to as
much as he could pay the first installrnent of,
he could bid no higher. But the objection, he
said, would have much more force in it, if
urged against the credit system; because, by
requiring cash, the number of speculators is
reduced, and most of their schemes and con
trivances will be baffled.
If any further illustration on this subject
were necessaiy, he said that ths gentleman
who made the objection had himself furnished
a very striking one. That gentleman had
said, that if the cash system should be adopt
ed, the United States would never collect the
money due for land which had been sold, be
cause that system would depreciate the value
of the land for which the debt wM contracted.

40

BPEEBH OF ME. ROBERTSON,

This argument, said he, is a "felo de se" —
it cuts its own throat. For why will the cash
system tend to depreciate the land sold under
the credit system? It is because it gives more
advantages to the purchaser — because it is a
better system for the purchaser. This is the
reason, and the only one. It does give more
advantages to the purchaser; not the specula
tor, but the man who may desire to purchase
for his own use; it gives him more good land
to make his choice in at a less price, with less
competition, with more certainty, and less
embarrassment. Mr. Robertson said, that every view of the
subject he could take helped to show that the
objection to the cash system, which is founded
on the assertion that it will not be advan
tageous to the poor man, is indefensible, and
that this system is strongly recommended by
the advantages it will secure to all classes of
purchasers, except the speculators. These
could not be entirely put down; to frustrate
them is only a secondary object. But, if it
were a primary one, a more effective method
than the cash system cauld not well be devised .
The only remaining topic, he said, is the ef
fect that the cash system would produce in the
Western country. He repeated, that its ef
fect on the 'substantial interests of the West
would be beneficent; but if it should be detri
mental, by checking population, he could not,
for that cause alone, vote against it. This ef
fect could not change his opinion of duty, but
would only tend to diminish his solicitude for
the passage of the bill. He did not come here
to legislate for any particular section of coun
try, or portion of the people of the Union, but
for the whole. The laws which his vote might
contribute to pass would operate on all; and,
therefore, it would be but right that the
interests of all should be consulted. As a citi
zen, he might delight to obey the dictates of his
local feelings or personal wishes, but, as a leg
islator, he felt bound to submit his conduct to
the guidance of other and highei- considera
tions. But, if he were at liberty to act on selfish
principles to promote local interests, it would
be his first and paramount duty to look to his
own state, and to confine his views within her
periphery; for, if he represented, exclusively,
any local interest, it was that of Kentucky.
And if such, he said, were his condition, and
such his duty, and it were true that the cash
law would check population, he would not
hesitate to support the bill; he would hail its
passage with acclamations of joy. For, what
would more promote the prosperity of Ken
tucky, than a system which would prevent
that efflux of money and of population which
had already so much exhausted her, and which
was, to a, great extent, the effect of the system
in operation? So far as the cash system would
diminish emigration and sales, it would tend
to diminish tho drain of people and money from
Kentucky. But, ho saitl, ho was sure that the
law would not have any deleterious operation
.on Western interests, by cheeking any popula
tion or preventing any sales that would re

dound to the advantage of the West. If hiS;
only object were the aggrandisement of tha
West, he would vote for it. ^ He believed that
nothing which Congress could do by legisla
tion would more certainly promote the pros
perity and independence of the West.
The member from Tennessee, (Mr. Jones,)
had expressed astonishment that the Westerly
members should differ in their opinion on this
subject. He felt as much sui-prise at it as tho
gentleman could feel. He could not perceive
how the apprehension could be entertained by
a Western man, that the cash system would
injure the Western country. He was as much
devoted to. Western interests as any of its rep
resentatives. He claimed it as his duty to be
so. He had been charged, obliquely, since it
was known that he was in favor of the cash
system, with anti-Western feelings and policy.
He was as sensitive on that subject as on any
other; but while he would not say he was im
perturbable, he would say that such charges or
insinuations, fulminated from the press or the
stump, could not. alter his opinion or his vote.
He was not to be driven from his purpose, or
deterred from doing his duty by denunciation,^
or threats of defection of friends.
He said he rSspected, as much as any rep
resentative should do, the deliberate and tem-
pera;te voice of public sentiment. But he be
lieved that public sentiment, in Kentucky,
would be decidedly in favor of the cash .sys
tem, whenever understood and tried. Howev
er, he must say, that the only way to change
his vote would be to change his opinion.
Did his colleagues, he asked, suppose' that
they gave evidence of more attachment to the
West by their votes than he felt? He hoped
they would dq him the justice to believe that
he was as much devoted to the West as any of
its citizens. Why should he not be? He had
as great a stake beyond the mountains as any
other man, and he was bound to the West by
as many and as tender ties. Was it not the
country of his birth — the home of "wife, chil
dren, and friends?" Did it not embosom all
that he hold most dear? And did it not con
tain the sacred spot ill which the relics of his
father reposed? He could yield to none in de
votion to its soil and its interests. He loved it
not only instinctively, because it was his
birth-place and home, but rationally, because
it was the fairest portion of the globe. Its soil
is luxuriant, its climate salubrious, its popula
tion virtuous and hospitable — its men are brave,
and its women chaste. Bound to him by such
ties, and tljus deserving his aft'ection, he would
never desert its cause. As long as he should
continue in its service, he would be faithful to
its interests. He would advocate aud pro
mote them, as far as might be consistent with
the general welfare, and ho believed he was
doing it by supporting the cash bill; for he be
lieved, that the West never would attain the
high destinies before it'if tho system of credit,
which had already so much cmb.arrafisefl and
enfepblcd it, should be continued.. Why is it,
said he, that that country is now so much iu
debt? Why is the balance of tr.adc so much

ON THE LAND BILL,

41

jigainst it? Why is its currency so much de
ranged and depreciated? Why is such a lan
guor pervading that rich and resourceful
CQunti'y? '
He knew that these "were effects of more
causes than one; the general system of credit
was one; but he had no doubt that one of the
most prolific sources of the calamities with
which the West is afflicted, is the credit on the
public lands. This had terhpted them to go
beyond their means, and contract debts which
they could not pay; it h'ad depreciated the
5V"est^m paper currency, and had tended to
.augment ahd- vitiate that currency. Could any
one fail to see its operation in producing these
effects? He would ask his colleagues whether
the Western country wojild not now be in a
better condition, if there never had been any'
credit given in the sale of public lands? Would
it.not be more independent, and have more and
better money? Would it not owe $22,000,000
less? He said, that that country he'ver could
be restored to its naturally healthy and pros
perous state, as long as such an immense debt
is suspended over it, like, an incubus, which
-paralyses , its best fiscal and moral energies.
Is it not desirable to extricate it from this
condition? Is it not the dilty of its friends to
make an effort? He said that he did not know
anything which Congress could do, that would
tend more to this result, than the adoption of
the cash .system. . That will prevent the accu
mulation of the debt, and tend to correct and
restore the Western currency. Should it be
adoptod, those who migrate from the East and
transplant themselves in the "West, would buy
only as much land as they could pay for; the
purchase money they would carry with them
from the East, and all they could make on the
land ifor four years, would adcjto the resources,
and swell the' currency of the WeStj by being
distributed among its peqple. But if this sys
tem be rejected, then the- Eastern immigrants
will only make the first payment with their
Eastern funds; they will generally purchase as
much land as they can make the first payment
for; the remaining three-fourths, for which they
get credit, must be made in the West, and,
when paid, abstracted from its resources. Is
there not a great difference between adding the
three-fourths to the capital of the West, and
¦abstracting them from it? Will not the credit,
then, always oppress the West, render good
money scarce, and increase the amount of bad
money? Under the credit system, not only
is an immense sum annually withdrawn from
the West, which, under the cash system, would
be retained, but that sum consists of specie, or
the best paper of the West. The withdrawal
of this rnakes a vacuum, which must be filled
by an augmentation of a vacillating paper me
dium. This augmentation depreciates and vi
tiates the cijrrency; this currency the public
.• debtor must take, but the government; will not,
receive it frpm him In addition to. those con
siderations, he said, it should be recqllected,
that the same quaiitity of land Tvhich would
draw fronj the "west $800,000, mider the credit,
would only take $500,0(10 under the cash sys-
6

tem. ^ Was he not justified in saying that the
substitution of the cash system would nielio-
rate the condition of the West? It would en
able it to o-*e less, have fewer and better
banks, more money and better money, and
more and better population.
He said, there was another aspect of tho
subject entitled to the serious consideration of
^the real friends of the West. It is the influ
ence which the credit system w'ould give the
East over the West. Some of the , causes of
this influence had beeii sufficiently alluded to
in coiisiclering the topics of discussion. He
hoped gentlemen would .recollect them, aud
make the proper application of them.
He would, only add, that a large Western
debt would give the Eastern politicians, in a
struggle for power, a powerful weapon. It
would render it impossible that the West
could have afair andequalcontest. It would
be the talisman, whose spell, in the hands of
dexterous men, might be subjugation or dis
solution. Such men would not only have the
advantage derived from the debility, languor,
and ''distrpss which a large debt would pro
duce m the. West, but they could hold the ap
palling , sum in terrorem over the devoted
West, and say — pay, or submit. Then, said
he, might you see enforced the maximum,
"parcerejubjectis, debellare superbos." He said,
he hoped that these consequences would never
be realized; but, as a "Western man, he was
anxious to render an occurrence of them im
possible, and to rescue the West from danger
before it might be too late. He said; if he
were an Eastern man, and desired supremacy
over tho West, and labored under such a desti
tution of principle as to resort to legislative
power to effect it, he knew nothing which he
would so strongly advocate as the continuance
of the credit system. He" would make the
debt as large as possible. To counteract such
policy, he desired the cash system to pass; and,
in advocating it, he felt sure he was advo
cating the best interests of the West. He
said, let the Western people get out of debt,
and leave their posterity free, and then they
would have power, and wealth, and indepen
dence. Nature b^d decreed it. They will
then preserve their influence, their rank, and
their public spirit; they will then move and
act in the majesty of their native and charac
teristic independence; they will be a great, a
powerful, and a happy people.
Gentlemen need not fear that the march of
Western power or population would be retard
ed by the cash system. If the view he had
taken of the whole subject be correct, the ef
fects of the system would be very different.
He could not see how the system could im
pair the pqwer, or diminish the population of
the West., Would it impair the strength of
the West to get out of debt, and add to its re
sources? Or 'Would it diminish or obstruct
the current of immigration to the West, to of
fer to the immigrants terms of purchase more
advantageous to them and to the country to
which they wish to go, than' those now offered?
Or would it check population to prevent tho

42

SPEECH OF ME. ROBERTSON.

monopoly of large tracts of good land by spec
ulators, who would not settle on them? He
said, that if the cash system would prevent
the immigration of any class of citizens to
the West, it would be a class that would not
be a very valuable accession to the strength,
the morals, or the wealth of the West, but who
would only increase the "Western debt, and
diminish the real and substantial resources of
the Western countiy.
He said, that the Western country would
populate soon enough; men would go to it
whenever it should be their interest to go. It
is not good policy ' to invite or decoy them
thither any sooner. Let the principle of pop
ulation, and the rule that regulates and con
trols it, have their natural operation. Do not
endeavor to increase its fecundity, or accel
erate its results, by artificial expedients. It
cannot be desirable to have a mushroom pop
ulation; let it grow gradually and naturally,
and it will be homogeneous, and happy, and
strong. Let the body politic work its own
cure, if diseased. There is a recuperative
spirit in it — a vis medicatrix natures, that will
preserve its health and vigor. He did not
profess to know much of political pathology,
but he thought there could be no doubt that
the resources and ultimate power of the West
are certain, if its friends would forbear their
nostrums, and let things regulate themselves
according to the natural laws of health.
Let the population of the West grow on its
own natural resources, without the artificial
aid of a delusory credit. The surest way to
increase an efficient population, which alone
will strengthen the resources and power of
the West, is to expel bloating luxury and
speculation, by stiiiing their pander, morbid
credit, and encourage industry, virtue, and
ecnomy. The first step towards this policy
isto extricate the West frojn debt, with all its

paraphernalia; to confine its expenditures
within its actual means, and make its citizens
independent cultivators of the soil, and not
the tenants of the speculator or the govern
ment. The cash system, so far as it could
operate, would tend to these wholesome re
sults, by distributing the lands, in small
tracts, among the people, for their own use,
and by frustrating speculation, and prevent
ing monopolies. He expected much good
from it. He hoped, therefore, that it woulii
be adopted. '
He had, in an inimethodical manner, he
said, offered some of the considerations which
would influence his vote. He had endeavor
ed to show that the cash system is required
by the fiscal and political interests of the
general government — by the advantages it
would afford to the bona fide purchaser — and
by the substantial and permanent welfare of
the Western country. Whether he had been
successful, would appear from the decision of
the committee. Whatever that decision
should be, he would be content. He had dis
charged his duty to himself and his country.
If he had erred, he should be supported by
the approbation of his conscience, and the
clearest convictions of duty; and he believed
he would, at last, be sustained by the opin
ions of his fellow-citizens, and the verdiet of
posterity. If the bill should pass, he hoped that his
friends, who differed with him on this inter
esting subject, and especially the Speaker,
(Mr. Clay,) who would follow him in the de
bate, might live long enough to witness and
to enjoy, the benefits which, he believed,
would result from it, not only to the Union,
and to the poor and actual settler, but to the
great interests of the West — to its strength,
prosperity, and power, aud to the indepen
dence and happiness of its people.

PRELECTION.

In 1821 the Legislature of Kentucky directed a committee, appointed
for that purpose, to obtain information and report concerning tl^e best
and most practicable mode of organizing some system for popular edu
cation. That committee reported to the Legislature of 1822-3, facts
communicated from gentlemen in other States where Common Schools
had been tried. The report was referred to the committee on Education,
of which Mr. Robertson was chairman, having been elected from the
county of Garrard for that session, after having resigned his seat in Con
gress for an entire term.
Mr. Robertson made the following report, which was adopted. The
circulation of that report awakened public attention to the subject,
which finally resulted in the adoption of a system of Common Schools in
Kentucky. And in these proceedings we may see the initial steps taken
¦ty this State oa this interesting subject.

REPORT OF THE COMMITTEE ON EDUCATION
IK THE
HOUSE OF REPRESENTATIVES,

[Session of 1823.]

The select committee on so much of the
Governor's message as relates to Education, to
whom was referred the report of the Commis
sioners on Common Schools, have considered
the subject submitted to them, with as much
attention as the short time allowed them for de
liberation would permit, and now beg leave to
make the following report:
It can scarcely be necessary, in this en
lightened age, to present to a free people any
arguments in favor of a general diffusion of
Knowledge, farther than what have already
been advanced by the commissioners; and
were there even any peculiar circumstances
a'ttending the situation of Kentucky, which
might render it expedient to take an extensive
survey of the value and utility of common
schbbls, with a notice of their history and ef
fects, moral, social, and political, your com
mittee would deem it olily necessary to call
the attention of the community to the ample
and judicious remarks upon this subject, con
tained in the report of the commissioners.
Availing themselves, therefore, of that .Valua
ble document, which presents so satisfactory
and imposing a view of the subject, thejy will
confine themselves, in this report, to a few
hasty and prominSnt considerations, supple-
ihentary to the suggestions made by the com
missioners. Ever since the period wheh'the intellectual
and moral dfwkness, which hung over man
kind during the middle ages, was dispelled
by the light of science, and of civil and reli
gious liberty, which dawned in the fifteenth
century, the march of liberal ideas and true
philosophy, although slow, has been steady
and constantly progressive, until the time has
arrived when the rights of man are generally
understood, and he is restored, in some por
tions at least of the civilized world, to the dig
nity of his nature, andelevated to his just rank
in the scale of being. This happy consum
mation has not been the result of blind chance;
but of the natural and powerful influence of
reason, in its gradual developments. Igno
rance and superstition are the talismanic
agents, by the aid of which the ambitious
demagogue has ever been enabled to deceive
and control, and by which alone tyrants have
subjugated the great body of tho people. Ko
people were ever long free, unless they were
uot only virtuous, but enlightened. We need
not recur to the ancient histories of Greece and

Rome, for an exemplification of this truth. It
is abundantly attested by the records of more
modern times. Wherever ignorance and its
concomitants predominate, no matter what
may be the name or the form of the govern
ment, the destinies of the many are controlled
by the artifices of the favored few ; the voice of
reason is hushed, and she is made the puppet
of passion, and prostituted at the shine of am
bition. M"o free institutions, however J3erfect
in theory, ever were, or ever can be, durable or
efl'ective, unless the public mind be generally
enlightened. Ignorance, if predominant, will
inevitably convert a free and happy govern
ment into the most oppressing and galling
despotism. Under a form of government like ours,
whose very basis is the equality of the citizens
— whose soul is public opinion — it is more pe
culiarly essential that knowledge should bo
accessible to all. If the great mass of the peo
ple be ignorant, liberty will soon be stifled;
her votaries will be amused with her shadow,
while her substance is gradua,lly drawn
away, and her vitality extinguished. Tho
great objects and tendencies of education are,
not only to enlighten, but to liberalize and
expand the mind, to, improve the heart, and
thereby to meliorate and dignify the condition
of society. The muses are the natural asso
ciates and guardians of liberty. Their resi
dence is her favorite abode. To enjoy our
rights, we must understand them well; to se
cure and protect them, we must not only feel
their value, but be acquainted with their ex
tent and appropriate limitation.
That theory which pronounces all men
equal, is in practice a delusion, unless all have
the capacity to kno#, and thus to preserve in
violate, their civil and political rights. No
species of inequality is so much to be dreaded
in anopular government, or deserves so high
ly to be deprecated by the patriot and philan
thropist, as the inequality of mind and of
mental attainments. Fortune ever has been,
and ever will be, unequal in the distribution
of her gifts; but this inequality should, as
much as possible, be counteracted, audits an
ti-republican tendency checked aud restrained
by the guardianship and benevolence of a
providentgovernment. The intellect of every
citizen, especially in a republic, is the prop
erty of the commonwealth. Indeed, the cul-_
tivatcd minds of the people constitute the chief

46

REPORT OF THE SELECT COMMITTEE.

treasure of a free state. There is an infinite
expansibility in the mind of man; and it is
among the first and most important duties of
the government, to improve the elasticity and
cultivate the intellectual energy of the whole
commmunity. Thus, the common property of
society, which constitutes the basis of its
power and happiness, will be indefinitely
augmented. Thus, and thus only, will liberty
'and equality, social peace and permanent
prosperity, be preserved
"Knowledge is power;'' and the only way
to preserve an equality of the latter, is to pro
mote a general diffusion of the former. But a
wholesome development of the moral, physi
cal, and intellectual faculties of all the people
of both sexes, will make our institutions more
stable and our la,Ws more efficacious — will
elevate the character of our State, and promote
both personal and social peace and happiness,
and will afford the best of all safeguai'ds of
public order and individual security. The
only trifly efl'ectual law is that inscribed on
the Heart; and by enlightening the popular
Head, and rectifying the popular Heart, pub
lic peace and private right will be made more
secure than they could possibly be made by
the wisest code of human laws, backed by the
best of human sanctions; and consequently
much more will be saved to the public and to
individuals, by popular education, of the right
sort, than will be expended in the universal
diffusion of it, even at the cost of the common
wealth. It is, therefore, at oirce the interest
and duty of government to afford facilities
for education; so that, as far as possible, every
intellectual seed may be made to expand and
fructify. The general diffusion of scholastic
instruction cannot be expected from the spon
taneous and unassisted efforts of the people.
The rich, it is true, can educate themselves;
but the poor, and those in moderate circum
stances, must depend, in a great measure, for
the means of information, upon the care and
assistance of a parental government. Hence,
the propriety of legislative interposition and
patronage. By the tutelar assistance of the
state, many a brilliant mind, otherwise des
tined to languish in obscurity, may be brought
forth and expanded; many an humble indi^
vidual, otherwise without the means of culti
vation and improvement, may be rendered an
ornament and benefactor of mankind, aud
enabled to "pluck from the lofty cliff its death
less laurel."
Wherever common schools have been tried,
their results have been eminently beneficial.
In Kentucky, the experiment has never yet
been made, only because the population lias
not heretoi^ore been deemed sulnciently dense
and homogeneous, nor the condition of the
people so much diversified by the inequalities
of fortune, as to render its adoptiou expedient
or necessary. Literary institutions for the at
tainment of the higher branches of knowledge,
and for the education of those whose funds arc
suflicient to pay for their own tuitiou, have,
we are proud and happy to say, been suffi
ciently multiplied and liberally patronized iu

Kentucky; and we may confidently indulge
the hope, that our University is destined to
reflect honor on the State, and lustre on the
Union. Butwhilewe are thus wise and generous in
tho patronage of the higher seminaries of
learning, shall we neglect those of a mores
humble, but not less essential or valuable
character? While we are thus benefitting the
state, by the facilities we afford to one class of
our citizens, is it judicious, is it republican, to
withhold the aid it is in our power to afford to
those who need it most, the great mass of the
community? While other states are wisely
laboring lo improve the system, and extend
the advantages of common schools, shall Ken
tucky be careless or indifferent oh the sub
ject? Shall she not be anxious to maintain
her rank, in this important particular, as she
has hitherto done in other respects, among
her sisters of the federal family? Kentucky
abounds in resources, natural, moral, and in
tellectual. Let it then be our effort to call
them forth, and render them useful. Let us
be careful to husband them well, and rouse
into action all the dormant energies of our
citizens. This course, in the opinion of the
committee, is due, not only to our own inter
ests as a state, but to the great cause of free
dom and humanity. The American States
are the depositories of the liberties of man
kind. They are, by tlieir political experi
ment, fighting the great moral battle of suc
ceeding generations. By the diffusion of
knowledge, and the promotion of virtue, our
free institutions may be rendered indestructi
ble, and the blessings of self-government ex
tended and perpetuated.
Common schools have ever been considered
the best agents for circulating the rudiments
of knowledge. In most of the old states, they
are, and long have been, in successful opera
tion. Kentucky, being th» first offspring of
the "original thirteen," and being the nucleus
of all the young states iu tlie great valley of
the Mississippi, owesitto herself and tothem,
to seta goocf example, by instituting, as eaily
as possible, a system of educatiofl, that prom
ises to be the source of such extensive and
durable usefulness.
The only doubt with the committee, is as to
the practicability of maturing aud adopting
an appropriate system at the present time.
They are inclined to believe, that an attempt
to put any plan into immediate operation,
might, for the want of maturity and systemat
ic arrangement, be unsuccessful and inauspi
cious. The Literary Fund, they fear, is at
present insufliciont to accomplish the object.
It should, in the opinion of the committee, be
so far enlarged, as, by its interest, to support
the whole system. How and when this can
be effected, they think should be left to the
decision of succeeding legislatures. That it
may be effected, and that speedily, they are
well convinced; and although the time do6s
uot appear to have arrived, when it would be
prudent or practicable to commence the actu
al operations of the system, the committee arc

REPORT OF THE SELECT COMMITTEE.

47

extremely anxious that the legislature should
begin, even now, by its preparatory meas
ures, to give an impulse to public opinion,
and to lay the foundation of the ultimate edi
fice. The committee are neither prepared nor in
clined to submit any plan for adoption, at this
late period of the session. None has occurred
to them more eligible than that suggested by
the commissioners. Its general principles,
your committee most sincerely and confident
ly recommend. By uniting voluntary indi
vidual contributions with the public appro
priations, the rich will certainly educate, their
children, because they have paid for their ed
ucation, and can procure it at a moderate ex
pense; and the poor will avail themselves of
the opportunity, because it will cost them
nothing. In this way, all classes of society
maybe sufficiently informed, with'an expen
diture of money comparatively inconsiderable.
It is all-important, that the experiment of
common schools, whenever made, should be
successful.-" A failure, iu the first instance,
might discourage future attempts, and be fatal
to the ultimate result. The system should be
well matured, and adapted to the peculiar
condition and genius of our population; and
the people must approve it, or it will inevita
bly fail. That the people are favorable to the

object, and will unite in any judicious and ap
propriate plan for attaining it, there can be
no doubt. Tho committee, therefore, deem it
expedient to diffuse information on the sub
ject, and call public attention to its considera
tion, which can be done, perhaps, in no other
way more effectually, than by the publication
and distribution of the report of the commis
sioners. Time enough will be afforded, be
tween this and the next session of the legisla
ture, for examination and deliberation; and
then, it may be hoped, the representatives of
the people will come together prepared to act
on this interesting subject, safely and deci
sively. The committee, therefore, respectful
ly recommend the adoption of the following
resolution: Resolved by the General Assembly of the Com
monwealth of Kentucky, That five thousand
copies of the report of the commissioners on
Common Schools, and of the report of the house
of representatives on Education, be printed in
a pamphlet, for the use of the people of Ken
tucky; and that it be the duty of the secretary
of state to transmit to the clerk's office of each
county court in the state, for distribution, as
many of said pamphlets as each county shall
be entitled to, at the rate of fifty for each repre
sentative. G. ROBERTSON", Chairman.

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 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 debt? 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 de
preciated; and in a short time, the depreciation fell to two dollars in pa
per of said Bank for one dollar in gold or silver. To effectuate the re
lief 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 satis
faction 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 fov 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 con
tracts 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 na
tional constitution which prohibits any State enactment "impairing the obli
gation of contracts," and also Vvith 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 up
hold the whole relief system, while a firm and scrupulous minority de
nounced it as unconstitutional and void- That collision produced uni
versal 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 deliv
ered 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 retro
active, 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
7

50 PRELECTION".
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 ra^ed, 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, pre
faced by a long, bombastic, denunciatory, and ad captandum preamble,
were adopted by the following vote in the House of Representatives — -
Yeas— 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, Mos-
ley, Mullens, Munford, J. M'Connell, M'Dowell, M'Elroy, Napier, Nut-
tall, Oldham, O'Bannon, Porter, Prince, Railey, Riddle, Rodes, Rowan^
Secrest, Selby, Stapp, Stephens, Stith, Thomas, Ward, Webber, Wool-
ford and Younger — 56.
Nays — Mr. Speaker, Messrs. Alexander, Berry, Caldwell, Cox, Cun>-
ningham, 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,
Wickliff'e, 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 resolution*.

SPEECH OF MR. ROBERTSON,
Delivered in Oommiilee of the Whole in the Legislature of Kentucky, on ihe iUt
day of December, 1823, on a long preamble, concluding with the following reso-
tions in relation to the Court of Appeals, for tlitir late decision against thi two
years replevin and endorsrment acts of tfiis Slate.

Hesolved by the General Assembly of the Com
monwealth of Kentucky, That they do most
solemnly protest against the doctrines pro
mulgated in that decision, as ruinous in their
practical effects to the good people of this Com
monwealth, and subversive of their dearest and
most invaluable political rights.
And it is hereby further resolved by the au -
Ihority 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 contraiy, that it is the bounden duty of
the legislature, in vindication of the rights of
the people, and the great piinciples upon
"svhich those rights depend, to withhold the
.agency ef the ministerial officers of the govern ¦
ment 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 obliga
tion, 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 doctiine of that decision, ought not
to interfere with, or obstruct the administra
tion of justice according to the existing laws
which, whether they were or were not expedi
ent, are believed to be constitutional and valid;
and which should, when it shall be thought
expedient to do so, be repealed by the Legisla
ture, and not by the Appellate Court.
Mr. Robertson (Speaker) arose and said he
had not expected that the friends of the reso
lution would have precipitated their opponents
into a discussion of them before time had
been given to examine carefully, and endeav
or to compi'ehend the elaborate printed speech
whicfli proceeded them as a preamble, and
which hadbeen 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 faith
fully. 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 com
mittee could cleaHy and satisfactorily ex
plain. However, ho hoped, unprepared as he
was, if he could havs tha patient and close at

tention of the membeis, that he should be ablii
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 de-
cisiou. And he hoped that if this argument
should be protracted to a length which might
be inconvenient to some gentlemen, the ac
knowledged 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 constitu
tion, a check on the othei departments, or
whether the legislature should be uncon
trolled, and uncontrollable by anything but
its own sense of propriety.
That time could uot be said to be wasted or
employed improperly, which might be neces
sary for a full development, to the people, of
the character and tendency of such a measure,
and for an impartial examination and refuta
tion of the arguments which had been pub
lished 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 uot 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 re
store the people to peace, to confidence, to re
pose 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.
llowan) has forced the subject on the consid
eration of the legislature and of the people, and
has thought proper to urge it with all the pow
ers of his intellect, in a long "ad captandum"
manifesto, which ha* been published, it is im
portant that the public mind should be en
lightened by a full and free discussion. The
people must now underHtand and decide for
them.selvos the great and fundamental princi
ples involved in these resolutions. Whenever

SPEECH OF MR. ROBERTbOiV,

they shall be permitted to investigate them
dispassionately and impartially, they will de
cide them correctly, and it is hoped, irrevoca
bly. This is an eventful crisis in the affairs
of Kentucky — a great era in her history and
the development of her constitution. Let the
people 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 long
er. They are illusoiy: 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 ";)oiiticaZ sovereignty," this leg
islature may felicitate itself for haying done
more good and prevented more mischief than it
it could have done by any legislation.
Whatever shall be thought of these resolu
tions here or elsewhere — whatever feelings
they may generate, he hoped, (he said) that
the discussion would be grave and decorous,
and the decision dispassionate and impartial.
He would most respectfully and earnestly en
treat the members of the committee to en
deavor to feel a just ^enseof iheirrcsponsibili-
ty, and their public duty — to stifle all passion,
and to look only to the public good. Thus
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.
The subject of debate naturally divides it
self, said Mr. Robertson, into two primary po
sitions. 1st. Is the decision of the Court of
Appeals correct? 2nd. Even if it should be
believed to be wrong, are the resolutions prop
er and in consonance with the theory and fun
damental principles of the government?
He would invert the natural order and con
sider the last proposition first; and after hav
ing endeavored to show that, even if the court
had erred, there were still insurmountable ob-
jectioDS to the resolutions, he should try to
prove that the decision was sustainable on the
plainest principles of reason, and of justice,
and by tlie obvious and undeniable import of
the federal and state constitutions; and strange
as it might appear, he expected to derive no in
considerable 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 au
thor to doubt the legitimacy of his conclusion.
Having on a former occasion given his opin
ion 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 onlv notice the two first resolutions in

relation to the Court of Appeals, as what toV
lowed was only a consequence from them. _
Among manystroug and striking objections
to those resolutions, he would only mention a
few. First, when taken in conn ection with the
preamble which assigns the reasons for adopt'
in"- them, they import what is not true — that
is,''thatthecourt has been guilty of usurpation.
Secondly, they practically deny that the court
has a right to decide on the constitutionalitjf
of the acts of the legislature. Thirdly, they
strike at the constitutional power and inde
pendence of the judiciary, effect no good or
practicable end, are derogatory to the char
acter of the state, and contain assertions which
are not justortrue.
And 1st, is it true, said he, that the court
have been guilty of usurpation? If they have,
what apology has the gentleman, who intro
duced these resolutions, for not moving to re
move the judges from office? Why content
himself with decrying them? He knows, and
this committee knows, that there has been no
usurpation. Usurpation is the assumption of
power not delegated. Have the court arroga
ted to themselves any power that does not
constitutionally belong to their station? ^ It is
not to be believed that any member will be
"blunt and bold" enough to utter such an
opinion, except the mover of the resolutions;
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 pream
ble, 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 deci
ded, on their oath of office, that ihe Constitu
tion of the United States is param,ountto anact
of the Kentucky Legislature. In doing this
what unusual or dangerous power have they
exerted? In pronouncing an act of assembly
to be unconstitutional, they have done only
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 mem
ber who has exhibited the charge has partici
pated in that usurpation more than once,
whilst he was associated with a majority of
them. ISTo proposition, (said he,) is more universal
ly 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 re
pugnance to the constitution; a power and a
duty which result from the nature of the ju
dicial functions, the objects of the judicial
trust, and constitute a palladium of security
for the dearest individual rights. The consti
tution is the paramount law; the Judges, Leg
islature, and every citizen, are bound by it. —
The powers of legislation are limited by it; the
rights of the citizen are guaranteed and pro
tected by it; and the courts are bound by their
oathi to enforce it. It establishes certain great

ON THE COURT OF APPEALS.

53

fundamental principles which are held sacred,
tod lays down landmarks which the legisla
ture cannot transcend; which even the people
themselves are not allowed to overleap. It is to
the legislature the charter of their privikges
and duties. It is not a chart blanche; it is well
filled up. It distributes the powcrs.of govern
ment among thrtee bodies of magistracy;
makes each the depository of a distinct por
tion, and to a certain extent, independent of

might be, still it was necessary that they should
be governed, and that majorities might ba
wrong, it was thought necessary, in order to
secure inviolate the great principles of civil
and religious liberty, that there should be es
tablished certain great boundaries of power,
which, until changed in the mode prescribed,
the people themselves could not prostrate.
Hence, to secure the ends of association , it was
deemed right that the legislature should not be

the others. The whole people being too mul- permitted to enforce any law which they were

titudinous to .perform the functions of govern
ment, without the intermediation of agents or
trustees, have, by the constitution, confided to
the legislature uie power to make laws for
them; to the judiciary the power to expound
laws /or them; and to the executive the power
to execute laws for them. When tho legisla
ture enact laws, they do it in the name and with
the sovereign power of the people; when the
courts expound the laws and decide private
conti'oversies, they also do it in the name and
with the sovereign power of the people. If the
legislature are the people, because they repre
sent them in one attribute of their power, the
judges are as much the people, when they repre
sent them in another attribute of sovereignty?
Hence, there is nothing unreasonable in "three
men as judges controlling one hundred and
thirty-eight men as legislators" — it is the peo
ple who control the one hundred and thirty-
eight, through their agents; the judges, whom
they have created for that purpose. Each de
partment of agency is responsible to the peo
ple for delinquency, but only in the modes pre
scribed in the constitution; that is the power of
attorney from the people to each of the depart
ments, and must be enforced until revoked;
neither has a right to transcend the authority
delegated in this power of attorney. It de
clares that the legislature shall not pass cer
tain laws. — their not having the right to pass
such is the political liberty of the citizen.
But this boasted liberty would be only nominal ;
it would be only a mockery, unless the indi
vidual whose rights would be assailed by un
constitutional acts could appeal to some inde
pendent judicial tribunal for redress.
A constitution is a compact with all society
.and each individual composing it, which is in
tended for the protection of each, however
humble or iVeak, from the oppression of the
whole. The will of the majority should con
trol when it is expressed in accordance with
this fundamental compact. But a majority,
however large or powerful, or virtuous, have no
¦right to coerce a minority, however small or ob
noxious, contrary to the fundamental princi
ples thus adopted by all for the security of
each; for if a majority can have the political
power to act in contravention of the guarantees
of the constitution, there is no necessity for a
constitution: the will of the majority will then
be that constitution, or must supercede it. But
as it was known that man was fallible and un
der the dominion of passion, interest, and
even honest delusion, and as the framers of
the constitution knew from experience, that
however virtuous and enlightened the people

not permitted to enact by their letter of attor
ney — that they should not adjudicate on, or
execute their own laws. Montesquieu, Jef
ferson, and all modern writers on political
law agree, that that government is a despot
ism, whatever may be its name or its form, in
which legislative and judicial powers are con
solidated. The great improvement in the sys
tems of modern republics, and that which tlis-
tinguishes them most above those of antiquity,
renders them most stable, and endears them
most to our affections, is the interpositim of
checks and ballances. There can be no politi
cal security in any government in which all
power is consolidated in one department, even
if that should bo the legislature.
An elective despotism," says Mr. Jefferson,
in his notes on "\"irginia, "is not the govern
ment which we fought for." The American
constitutions are all modelled conformably to
this principle. In all we find three separate
departments, with ])owers mutually to check
each other. The C(mstitution of Kentucky is
replete with this pervading principle.
The House of Representatives cannot pass a
law without the concurrence of the Senate, nor
can both concurring, unless there be a majori
ty of all elected, make a valid enaction with
out the sanction of the governor, however much
their constituents may desire or need it; and
so of many other provisions of the constitution.
Those who made it. Were unwilling to trust
the varying and uncertain opinions of a domi
nant majority. They thought that public rec
titude of motive was not a sufficient security for
the rights of individuals. If it would be,
therewould be no necessity for a constitution —
and government itself, in its mildest form,
would be tyranny. The only object of a limit
ed constitution, is to secure the few against the
encroachments of the many. How can this
great purpose be effected unless there is some
constitutional check on the legislature? What
should be that check? Tho.-^e who made the
constitution thoughtthat the best which could
be devised would be au enlighted Judiciary;
they thought wisely — abetter could not havo
been imagined. Judges are selected for their su
perior knowledge of the laws and constitution,
and for their probity; they have no motive to
decide wrong; they have no power except that
of the preventive character— they hold neither
the purse nor the sword. Their only ambition
is to adorn the bench by their wisdom and pu
rity — they do not mingle in party or election
eering contests. As it was known that con
tests would arise between portions of the com
munity as to the construction of the compact

54

SPEECH OF MR. ROBERTSON,

to which all the members have become parties,
»nd as there would be great danger and palpa
ble incongruity in permitting either party inter
ested to decide irrevocably against the other,
it was agreed that some umpire should be se
lected, to whom the people shoyld confide the
power of deliberating and deciding between
them. An infallible tribunal could not be cre
ated out of fallible materials — but there must
be some arbiter, and none less liable or dis
posed to err could have been selected, than an
independent judiciary. But the primary end
of their creation will be defeated if they be not
allowed to declare an act which shall be incon
sistent with the constitution, void. If they
have not this power, then there is no constitu
tion except the arbitrary will of a majority of
the legislature. The limitations in the consti
tution would be nugatory. Therefore, an hon-
estjudiciaiy is the anchor of the republic.
Our constitution has a conservative princi
ple; that principle is that the legislature are
prohibited to pass certain laws, and if they
should disregard the prohibition, their act shall
be a nullity. When a court declares an act of
.assenlbly void, for repugnancy to the funda-
, mental law, it only says that the will of the
jieople expressed in their constitution, is para-
moiint to that indicated by their legislature.
The court does not repeal the law; it is repealed
.already by the people. in their constitution — it
never was law. If the legislature act contrary
to the authority given by the people iu the
.constitution, they act without authority, and
their act is void. The constitution is superi-
, or to them— -they derive their power from it —
and even the people, who are the ultimate de
positories of all power, cannot control, resist or
suspend it, except by controlling it in the mdde
prescribed by themselves.
Ally individual, therefore, has a right to the
protection of its guarantees, not only against
the opposition of a majority of the Legislature,
but of the people themselves. For the constitii-
tion governs majorities as well as minorities. —
If the Legislature caii enact and enforce any
statute which they may think fit to enact, then
they are above the coustitution. When a court
decides in favor of an individual, every other
member of the community cannot reverse that
decision, except by abolishing the constitu
tion. In this consists the value of the consti
tution; in this consists the political liberty of
the people. Civil liberty is exemption from op
pression; political liberty is the security from
oppression which is afforded by the form of
government. But if the legislature have the
right to violate the coustitution, and then ad
judicate on their own act, the citizen may en
joy civil liberty, )3ut he has no political libert3^
The constitution then would be no better than
an act of assembly.
When a judge is called on to decide what tho
'law is, where two statutes are iu conflict ho
must pronounce what is ill force — v. fortiori,
when a mere statute and the constitution are
in conflict, he; must declare which is (holaw —
it is inherent in tho nature of his office. If the
majority ^-iolatothe constitution and asfail the

liberty of tho minority, who is to decide be
tween them? If the legislatura destroy the
liberty of speech or of conscience, who shaU
decide between them and the disfranchised
individuals? An impartial and enlightened
court, sworn to support the constitution.
If the court had the power, said he, they cer
tainly were not usurpers for having done their
duty. Being compelled judicially to decide
the case presented to them, they had the right
to render judgment for that party on whose side
they believed the constitution to incline. If
this was usurpation, why was the case forced
upon them? For if it were settled already by
the legislature, it was not a judicial question,
there being nothing more to decide. The court
manifested as much reluctance to give the de
cision as was compatible with their duty; they
desired to avoid giving any opinion which
would invalidate the replevin act; but when
they could not with propriety longer avoid a
direct decision on it, what did they do? Why
they — decidfed it! And for this they are de
nounced, by at least one gentleman, as "usurp
ers." Monsti'ous and perilous denunciation!!
Suppose they had contumaciously refused to
decide the case, or had prostituted their con
sciences and judgment at the shrine of popu
larity, or had assumed legislative omnipo
tence; would they not then justly have sub
jected themselves to the imputation of "usur
pation," or of official corruption, and have de
served removal from office? Certainly. In
what a predicament then are they placed? If
they will not adjudicate, they must be re
moved; if they decide honestly and correctly,
they are "usurpers!" A doctiine which in
volves such consequences must be false. Let
us beware, said he, that we shall not exemplify
the fable of the wolf and the lamb; let us take
care that, whilst we are crying out murderers,
we are not insidoiusly assassinating the court;
and not only violating the constitution, but
sapping the principles of civil liberty and
blighting the honor of • our state. The court
did tkeir duty honestly; let us follow their
example. They usurped no power; let us not
go out of our sphere lest we be guilty of "usur
pation." He argued next in support of the second ob
jection, which was, that whilst the preamble
conceded to the court the right to declare a
legislative act unconstitutional, it in effect
practically denied the right, by requiring as a
"siNEQU.i non" to its exercise, that the uncon
stitutionality of the act must be "obvious and
PALP.\BLE." This qualification, (said he,) is
"obviously and palpably" unauthorized; else
it destroys the concession of right in any case
and leaves the legislature uncontrolled, ex
cept by its own reason, discretion or passions.
AVhat, he inquired, was meant by "obvious
and palpable," when used in the preamble?
Was it intended that the repugnance to the con
stitution should be obvious to all men of all
grades of intellect, or only to the most enlight
ened? Most it be palpable to those who are
torturing their minds to seize some pretext for
not sci'ing it? Tn those who are doterininod.

ON THE COURT OF APPEALS.

55

from pride, interest or ambition, to shut their
eyes against it? Must it be obvious to the leg
islature who passed the act, or it must be obvi
ous to the court who are called on to determine
it? Certainly to the court. No prudent aud
intelligent tribunal of justice will ever refuse
to enforce the legislative will, unless that will
be to that tiibuual plainly interdicted by tho
constitution. The court of appeals has not
done, nor ever will do it., A Judge has no
personal motive to do it; he may lose, he can
not gain by it. There is no danger of his ever
doing it unless he feel imperiously bound by
an honest and clear conviction of duty.
Judges do, no doubt, frequently lend their
agency to the enforcement of the legislative
will, when they are inclined tohelieYe that the
paramount will of the people has been disre
garded; and this is perhaps proper. There is
no danger tobe apprehencied from the Judicia
ry, except that, through fear of offending the
legislature, aud of thereby subjecting them
selves to a perilous responsibility, they may
tamely connive at legislative encroachments,
and fail to enforce constitutional rights. This
is exemplified by the history of all jurispru
dence, especially by that of those governments
in which the judges were dependent on the
legislative or executive department. Hence
the wisdom of the convention in endeavoring
to render the judiciary as independent of the
legislature as would enable it to decide all
eases according to its honest convictions of
right aud duty, without consulting or fearing
the popular branch of the government. The
right to judge involves the right to the faculty
of judgment; it pre-supposes the existence of
that faculty, and necessarily implies its free
dom from control or fear.
A decision given contrary to the opinion of
the judge, is certainly not his judgment. It is
his duty, in defiance of all consequences, to
pronounce his own opinion; and in doing so,
who can say that it was not obvious and pal
pable to him? If it be not obvious to him on a
constitutional question, he will not give it; if
obvious to him, although imperceptible to
all others, he is bound to give it. But it
is contended that the court have no right to
decide an act of assembly unconstitutional, un
less the repugnance be "obviocs and paupa-
bib" to the legislature! How would the court
aver ascertain this fact? It would not fairly
be presumable that the legislature would pass
an act which should be to them "obviously
and palpably" unconstitutional. If they ever
should be corrupt enough to do so, they would
be proud enough not to acknowledge it. And
if the judge shall have the right to pronounce
their acts unconstitutional only when they are
"palpably and obviously" so to themselves,
then it results inevitably, that he has no right
to give his own opinion unless it be in accord
ance with their's; and hence would this con
sequence result, that he would have the right
in no case, however obvious to him, to declare
a legislative act unconstitutional, but would
be compelled tc violate his oath, and assist
tha legislature to prostitute the con»ti*ution

at the shrine of ambition or wanton power.
Can such a doctrine as that, which leads to
such absurdities, be orthodox? No; itiswor.se
than Utopian. But .again, if a proposition ba
"obviously and palpably" repugnant to the
constitution, it is not only not to Ido presumed
that the legislature will, even in the wanton
ness of arrogated power, adopt it; but if they
unexpectedly should, there could be no doubt'
that the next legislature Would repeal it.
Therefore there would be no necessity for
courts to possess the power of resisting the
constitutional encroachments of the legisla
ture on the rights of individuals, unless it
could be exercised in cases which the legisla
ture would uot acknowledge to be "obviou^
and palpable" violations of the constitution,
because it is not probable that it ever wouldbe-
come necessary to exercise it; and if it should
be, it could not be exercised.
From this brief view it irresistibly re
sults, that if a Judge have no right to decido
that a legislative act is unconstitutional, when
ever obviously so to him, unless it be "obvi
ously and palpably" so to the legislature, ho
has no right to do it in any case. But it is ad
mitted in the printed argument that he has that
right; therefore he has it, like all other judicial
rights, to be exercised according to the best
dictates of his own conscience and judgment.
It is his privilege and his official duty to fol
low the light of his own reason. It is the duty
of the legislature to act conformably to its own
judgment in enacting statutes. It is equally
incumbent on the judge to follow the convic
tions of his mind in expounding them. Thera
are no degrees in the repugnance of legislation
to the constitution. An act is either constitu
tional or unconstitutional. If an act be uncon
stitutional, it cannot be material whether it is
"obviously" so or not^ It is void — and it is
because it is void that the courts ought not to ¦
enforce it. A judge has no right to enforce an
unconstitutional statute; it is not law, and he
is appointed to administer law. It does not
belong to the legislature to decide what th»
law is, but to the judge. He cannot, therefore,
without usurpation, without an abuse and per
version of his office, enforce against a citizen^
an act of the legislature which is a nullity.
He said he would be glaJto be informed of tha
difference between a violation of the constitu
tion, which is "obvious," and one which is not
"palpable" to every understanding. Each is
void, and one as much so as the other, for
there are no degrees m nonentitt.
But itis contended, said Mr. Robertson, that
a judge has no right to determine by construc
tion that a legislative act is unconstitutional.
This is an unfortunate subterfuge. Must rea
son be proscribed? Must it be banished from.
the judicial mind? Must a Judge have no.
judgment? What is the province of reason but
to construe? What is the object of construo-
tion but to find truth? The right to construo
is of the essence of the judicial character. A
judge, without the faculty to construe law,
common, statute, or constitutional, would be a
.phenomenon. All his decisions are the re-

56

SPEECH OF MR. ROBTRTSON,

»ult of construction. His principal function is
to construe, interpret, expound law, and the
constitution is not only law, but above all other
law. It is impossible, even in the common affairs
oflife, to detect error or discover truth, with
out "construction," without reasoning from
some self-evident principle to some more oc
cult truth, and so on by a regular gradation to
the final conclusion, which, when itis educed,
is as certain as the primary proj^osition, from
which it was, by a regular process, drawn.
How' are the most important truths in the mor
al, intellectual, and physical world ascetained,
except by the faculty of reason and some pro
cess of construction? The most recondite
principles are, by these agents, developed with
all the certainty of intuition. The truth of
even a mathematical theorem is at first dis
guised. But by a regular chain of reasoning,
from one proposition to another, the demonstra
tion is complete and the conclusion irresistible.
And must not a judge, who is the arbiter of
life and death, be permitted to trace out right
and detect wrong by a process which is so
successful, and unerring, and universal?
Must he not see truth, unless she be present
ed naked to him? If so, the only qualifica
tion of a judge would be, not mind, not integ
rity, not experience, but instinct!
But, said he, we have an apposite illustra
tion of what the gentleman from Jefferson (Mr.
Rowan) means, when he says that a court has
no right to fconstrue an act of assembly to be
contrary to the constitution, in the celebrated
and very elaborate opinion written by him
self when on the bench, in the case of the
United States' Bank against Morrison. In
that case he reasons, and metaphysically, too,
through about thirty pages in an octavo vol-
nme, to prove that the charter of tho United
States' Bank is unconstitutional. He here
"construed." He not only decided that the
charter was unconstitutional, but declared that
he would not, even as a judge, swoen to sup
port THE constitution AND LAWS OF THE UnITED
States, submit to the decision of the Supreme
Court. And did he think that tho law cre
ating the bank was "obviously and palpably
unconstitutional?" If he did, why did he
reason, and construe, and define so much and
so unmercifully as he did? If he did not, ac
cording to his new light, he was guilty of
usui-pation. But he did not think that the unconstitution
ality of the law was "obvious and palpable,"
or he would nothave "construed" so much, to
enable others destitute of his happy perspi
cacity, to see that which was "palpable" to his
mind without "construction. Besides, he
could not have believed that that was "obvi
ous and palpable," which the wisest men in
America had never been able to see.
Thoj Bank law had been decided to be con
stitutional by the Congress of 1791, and by
President WASHINGTON, by whom it was
passed. It had been considered con.stitntion-
al by the Congress of 1815-16, and by Presi
dent Madison, who re-enacted it. It had been

decided to be constitutional by the Supreme
Court of the United States; and all those de
cisions had been ratified and acquiesced in for
many years, by the intelligence of the Union.
Yet to judge Rowan's mind the charter wai
"obviously and palpably" uncoiistitutionall
otherwise, he now says, that he would have
been guilty of "usurpation" in presuming to
decide against the validity of the law. Hb
WAS THEN A JUDGE— -HE IS NOW A LEGISLATOB.
He had aright to do as he did, but he denies '
that right to other judges; that which was duty
in him was "usurpation" in them. The law
establishing the Bank was not "palpably" un
constitutional, to the Congresses and Presi
dents who enacted it — nor to the Supreme
Court; nor to any one individual in the Uni-
ted States; yet the Judge decided that it was
void, and whether the opinion was right or
wrong he had the right to decide as he did, if
he THOUGHT as he decided. He had a right to
his own opinion; why shall not others have the
same right? Others have the same right, oth
ers have always exercised it and always wiU,
as long as they are honest and independent —
as long as they are, in the genuine import.
Judges. He thought it was difficult to escape the
conclusion, (he said,) that, if the statute be
unconstitutional, whether it be "obviously and
palpably" so or not, the court had a right to
refuse tp carry it into effect. They were bound
to do so, by their oaths, their consciences, and
their duty to the constitution and the people.
.What would the people do with a Judge,
who, when a majority of the Legislature
assail their dearest rights, guaranteed by the
constitution, should, through fear of that ma
jority, against his solemn oath, assist in the
usurpation? Thev would hurl him down, as a
traitor to them and to his own conscience.
The humble citizen cannot be disfranchised
or oppressed, or divested of any of his consti
tutional rights, although a dominant majority
in the Legislature may decree it. It is the boast
of the free man that, however poor, obscure or
obnoxious he may be, he is protected and up
held by a constitution which knows no dis
tinction of rank or condition, and which is
above the highest and sti'ongest, even the uni
ted Legislature itself— and it is his consola
tion, that, if a majority should trample on his
rights, the constitution has provided for him an
independent and enlightened court, to whom
he can appeal and demand justice. But it
would be a mockery of justice to tell him,
though his most sacred rights had been inva
ded and destroyed, yet if his deprivation were
not "obvious and palpable" to the next legis
lature, there was no redress; for the injury to
him would bo as afflicting, and to the constitu
tion as extensive, as if it were ever so "obvi
ous;" and therefore the court would be bound
to protect him. Any other doctrine would
strike at the root of civil liberty, and would
subject the humble and the weak to the mercy
of the wealthy and the strong.
The constitution is the sanctuary for the
injured and oppressed, and the judiciary are

ON THE COURT OP APPEALa

17

ordained to minister at its holy altar. To min
ister faithfully they must havo pure hearts and
sound heads, and act in obedience to their un
biassed dictates, "palpable or impalpable,''
popular or unpopular. This is tho doctrine
of reason, of justice and of the constitution.
This, he said, led him to his third and
strongest objection to the 1st resolution, which
is, that it strikes at the independence of the
judiciary and at the equilibrium of the cousti
tution. He considered this a declaration of
war against the judges, and against tho fun
damental principles of the constitution — a
proclamation for resistance and anarchy — a
beating up for volunteers in a crusade against
the judiciary.
In vain may it be acknowledged that tho
constitution of Kentucky limits the powers of
the legislature — in vain may it be conceded
that it distributes all delegated sovereignty in
to three separate, distinct, and independent
departments; 4hat which is leglslative to the
legislature, that which is judicial to the judi
ciary, aud that which is executive to the execu
tive department. In vain may it be yielded, that
these move in different spheres — are erected
for mutual checks to maintain the balance of
power. In vain may it be admitted, that tho
legislature have no right to pass an unconsti
tutional act, aud if they do, the courts may
declare it void, as it must be. In vain may it
be boasted that Kentucky has constitutional
liberty, if the legislature, consistently with
propriety and fundamental principles, can an
noy or control the judiciary in any other mode
than that designated in the constitution ; or if
they can usurp judicial power, violate the con
stitution, overule the decisions of the courts,
and enforce their own invalid, unconstitution
al acts of usurpation.
This difficulty was foreseen by the author
of the resolutions, and in his printed argument
he endeavors to remove it. He says that "the
legislature are responsible to the people, and
the courts to the legislature." Therefore, the
legislature have a right to do as their judg
ments or passions may dictate in arraigning
and controlling that department. A perfect
nonsequitur — The legislature are responsible
to the people, but how? the courts are "also
responsible, and how? In the same way, and
to the same extent? Is that the argument? If
it be, it is false; if it be not, the conclusion is
illegitimate, 'fhe members of the convention
knowing the necessity of such a principle, de
termined that the three departments should, as
nearly as possible, be equijioised, and to se
cure^ this end, also determined that each should
be independent of the other, except so far as
they have, in the constitution, declared oth
erwise. The independence of the judiciary is consti
tutional, not merely legal. It cannot be
reached by the legislature in any other modes
than those by the constitution prescribed.
These arc, impeachment and address. 'I he
judiciary is established by the constitution,
and can only be controlled by it, or according
to its principles. 8

If a judge be guilty of corruption, impeach
him; for the judicial ermine is not to be stained
with even the suspicion of such delinquency.
If, for any other cause contemplated by the
constitution, it be proper to remove a judge
from office, remove him by address'. Rut do
not effect the object of indirection. Why did
the constitution prescribe two modes which
have been designated, unless it was intended
that the judiciary should be exempt from any
other proceedings by the legislature? Those
two modes of operating on the judges were de
vised, because, without any delegation of pow
er on the subject to the legislature by the con
stitution, the judges could not be reached at
all, as they are declared by the constitution to
boa co-ordinate department, in office for life,
unless removed in some mode provided. If it
were intended that the legislature should have
any other control over the judges and their de
cisions, why was it not mentioned, and why
weicthose modes specified?
It may be argued, that there may be no im
propriety in the legislature expressing its
opinion. To this it may be replied unanswer
ably, that it is always a sufficient objection to
sjich a course, that it is abstract; that it is, iu
fact, not legislation; for, in thus acting, the
members do not act in their representative, but
individual capacities, and their opinion can
be entitled to no greater effect, than that of a
collection of the same number of their con
stituents. If such a proceeding be preparato
ry to an address, or impeachment, it might bo
permissible. But this is disavowed. Then
what is the object? Is it to compel the court
to change their opinion? If they regard their
oaths or sense of duty, this will not be effect
ed, and if it could, what would be the conse
quence? Nothing more nor less than this;
that the legislature, after passing an unconsti
tutional act, may instruct and compel the ju
diciary to carry it into effect; the practical ten
dency of which would be to deprive them of
the power of deciding on the constitutionality
of the acts of assembly, although it is ac
knowledged that they have it. For, it is plain,
that such conduct of the legislature would
have this effect or none. Then the legislature
would be above the constitution, and not that
above them. All power would be absorbed
by the legislature, and the constitution would
be no more sacred, or inviolable, or stable, than
acts of the legislature.
If a bare majority can eventually effect the
downfall of the judiciary, by censuring their
conduct and degrading them in the estimation
of the people, or by reversing or suspending
their decisions, the coUstitutional equilibrium
is gone, and that beautiful theory which sup
poses that there are three departments of pow
er, each moving in its appropriate orbit, free
from any dependence on or responsibility to
the others, except as provided Dy the cousti
tution, is au ILLUSION.
Mr. Madison, in the47t.h number of the let
ters of "Publius," speaking of the necessity
of three departments of government indepeii.-
dent of each other, says, "That no political

53

SPEECH OF MR. ROBERTSON.

truth is certainly of greater intrinsic value, or
is stamped with the authority of more en
lightened patrons of liberty. The accumula
tion of all power, legislative, executive and
judicial in the same hands, whether of one, or
a few, or many, and whether hereditary, self-
appointed or elective, may bo pronounced the
very definition of tyranny."
Every constitution in the United Ftates has
been so modeled as to prevent this accumula
tion of power in the hands of the legislative
department. That of Kentucky is careful to
defeat it. But all its wise precautions will be
unavailing, if it be proper or permissible by
the constitution to adopt the resolutions under
consideration. All the apprehensions of the convention
¦were directed to the legislature, because there
could be no danger of usurpation to an oppres
sive degree by the judiciary. They well
knew that the legislative 'would be the most
powerful branch of the government, and that
there would be danger of its encroachments on
the other two; they knew that it was the most
popular branch, would have the most influence
over the public mind, and would be most apt
to overleap the barriers of the constitution.
They knew that tho judiciary, from the na
ture of its functions, and from its very eousli-
tution, would bo the weakest departmeni ; hav
ing less power, less ainbition, less passion,
less influence over the springs of public opin
ion, than the legislature: and therefore they
provided thatjudges should be irresponsible to
the legislature, except for corruption or some
other delinquency for which they might be re
moved by two-thirds of all the votes of each
house on charges to be spread at length on the
journals. They further declared, that
"The powers of the government of the state
of Kentucky shall be divided into three dis
tinct departments, and each of them be confided
to a separate body of magistracy, to-wit;
Those which are legislative to one; those which
are executive to another; and those which are
judiciary to another." "No person or collec
tion of persons, being of one of those depart
ments, shall exercise any power properly be
longing to either of the others, except in the in
stances herein after expressly directed or per
mitted. — Con. of Ky., Art. I.
But this legislature is now called on to erect
itself into a body of censors, into a judicial
tribunal, a grand inquisitorial body, to revise,
and, in effect, to reverse the decision of the
court of the last resort known to the constitu
tion. Who gave us, said he, this high power?
Whomade usacourt ofappeals? Who vested
us with judicial power? Not the constitution.
It declares that all our power shall be exclu
sively legislative. Not the people; they elect
ed us to legislate for them according to the au-
tliority given by them in the constitution,
They did not scud us here to subvert, but to
execute the priuciples of tho goveninient; not
to arrogate to ourselves judicial powers, not to
abuse and degrade the judges, but to euslain
them, or remove them from oflice, if two-thirds

should believe that they had forfeited their of
fice. As well might the legislature endeavor to
control the governor, or the judiciary the
legislature; and if it be proper to endeavor to
reverse the decision of a court, it would bo
much better, before it is given, to instruct
the court by resolution what decision to
render. All the power which the legislature has
over the courts is defined carefully and with
precision, in the constitution. If it has any
other power, whence derived, how limited?
It has no legitimate origin, and would be il
limitable. If the legislature c;>n reverse the decisions
of the courts, or resist them successfully, ei
ther directly or indirectly, where is judicial
independence? All prostrate at the feet of an
irritated majority — all overwhelmed in the
uncontrolled and appalling power usurped by
the legislature. Sir, said he, we are treading
on dangerous ground — we are about to estab
lish a perilous precedent. Jf we can para
lyze tho courts aud refuse to execute their de
crees, the constitution is a shadow, the power
of the courts an illusion, political and civil
liberty a chimera, all within the gigantic
grasp of the power of the legislature, all de
pendent on legislative will. And is there no
necessity for the barriers and checks of the
constitution? Should the legislature be above
them? If not jealously watched and guard
ed, is there not danger that it will prostrate
them and assume to itself unbridled domin
ion? Listen to the voice of history and expe
rience; look into the volume of nature, and
what wUl you find? You will find that there
is great danger of encroachments by the leg
islative department, and great necessity to
restrain and muzzle it. Let us hear what Mr.
Madison says on this subject. In the 48th
number of "Publius," after showing that pa
per barriers between the three departments
are insufficient, he says that "experience has
shown that some mure adequate defence is in
dispensably necessary, for the more feeble
against the more powerful members of the
government. The legislative department is
everywhere extending the sphere of its activi
ty, and dra'n'ing all power into its "impetu
ous VORTEX." In the same number he says,
that "in arepreseutative republic, where the
executive magistracy is carefully limited, aud
where the loejislative power is exercised by an
assembly, which is inspired by a supposed in
fluence over the people, with an intrepid con-
fidenceinits own strength; whichis sufficient
ly numerous to feel all tho passions which ac
tuate a multitude; yet not so numerous as
to be incapable of pursuing the objects of
its jiassions by means which reason pre
scribes; it is against the enterprising ambi
tion of this department, that the people ought
to indulge all their jealousy, and exhaust all
their precaution."
Mr. Jefferson, too, in his notes on Virginia, in
spcaJting of the necessity ef three departments,

ON THE COURT OF .\PrEALS.

s!)

and of tho defect in the old Virginia coustitu
tion, in not making the courts sufficiently in
dependent of the legislature, says: "Thoy,
(the legislature) have accordingly in many
instances decided rights which ought to have
been left to judicial controversy." The board
of censors selected in Pennsylvania, in 1783,
to enquire into violalions of the constitu
tion, reported many by the legislature, and
among others mention this, "that cases be
longing to the judiciary 'were frequently
drawn within legislative cognizance aud de
termination." Mr. Madison further says, in No. 51 of "Pu
blius," that, "In order to lay a due foundation
for that separate and distinct exercise of the
differeut powers of government, which, to a
certain extent, is admitted on all hands to be
essential to the preservation of liberty, it was
evident that each department should have a
WILL of its own." Further on ho says, "But
the great security against a gradual concentra
tion of the several powers in the same depart
ment, consists in giving to those who adminis
ter each the necessary constitutional means,
and personal motives to resist the encroach
ments of the others." Again he says, "In a
society in which the stronger faction can read
ily unite and oppress the weaker, anarchy
may as truly be said to reign, as in a state of
nature, "where the weaker individual is not
secured against the violence of the stronger."
And in the same number he says, that "in
framing a government -n'hich is to be adminis
tered by men, over men, the great difficulty
¦lies in this: you must first enable the goveru-
menl to control tho governed, and in the next
place, OBLIGE it to control itself. A depeu-
I deuce on the people is, no doubt, tltc primary
control of the government; but experience has
taught mankind the necessity of auxiliary
jirecautions." These, said Mr. Robertson, are admonitory
lessons. Our forefathers profited bj them,
and endeavored to secure their benefits to us,
but we are unwilling to enjoy them, "i ou see
in them the danger of legislative usurpation,
and the wisdom of the convention in endeav
oring to check it, by an honest judiciary; and
their solicitude that th^t judiciary should have
the means aud the motives to check it — should
have a will of its own, and be so far indepen
dent of the legislature as not to be afraid to
exert it. But we are endeavoring to disre
gard the wisdom of the world and to prostrate
the judiciary, not by removal, but by abuse,
60 that in future they shall never dare to de
cide against the legislature. Peotect the
CHAKACTErt OF YOUR JUDGES AS LONG AS YOU PER
MIT THEM TO HOLD THEIR SEATS; yOU OWO it tO
your country and to yourselves.
It is necessary that the court should pos
sess the confidence of the people. What good
can be effected by destroying it? Po not de
grade your judges and leave them in office — it
will degrade yourselves and your constituents.
If you cannot remove them, you cannot touch
them. You have no right to control their de
cision — the parties litigant havo a vci.ted right

to it. Nothing which you can do can divest
it. But if yuu havo the right to degrade them
for giving au honest opinion, you may deter
them from ever deciding that any act you pass
is unconstitutional. This woidd suit the am
bitious and designing. Such is the design of
the resolutions — they have no other object or
tendency. There is no danger, continued Mr. Robert
son, that the judges will ever overrun the lib
erties of the people. Who ever hoard of a
judge, who was not made the instrument of
either the executive or legif-lative department,
oppressing a whole community. He may be
au oppressor indeed, but it is only when he is
nuade the engine of the legislature or the min
ion of the executive; it is a dependent, not an
independent judge who is to be feared. Who
ever heard of a judge mounting to dominion
over the liberties of any people? Ko one ever
did or ever will.
The ambitious man, who meditates supreme
sway overhis country's destinies, never mounts
the Bench. He mounts the "stump," and
winds himself into public favor, by flattering
tho prejudices and passions of the m.ajority, a.-*
the serjient decoyed Eve. The man destitute
of principle, who stifles his con-eieiicc, alway.i
rides the current, delights in raising a storm
that he may mount it and direct the whirl
wind; whoso ostensible oliject is his country's
glory, while the delight of his soul is su
preme power; in Vv-hose iips is liberty, but in
whose heart is monarchy! This is ihe man
whom his countrymen may fear. !-ucli was
Julius Cajsar, Oliver Cromwell, and all others
who have stolen from the people their liberty.
To such men the most appalling object is an
independent, virtuous judiciaiy. That checks
their career. They never can seize the crown
until the judiciary is undermined. Hence it
will always be found that they denounce in
dependent judges, and endeavor to persuade
th ¦ ¦ "

he people that thej^ are oppre.^
.'heir only resource is the omnii

d by them.
ly resource is the omnipotence of tho
legislature, where, if they can get a scat, and
can, by counterfeiting their politics and dis
guising their designs, get at the head of tho
majority, they stand the uncontrolled arbiters
of their country's destinies.
But, said Mr. Robertson, there is a peculiar
objection to the resolution which proposes re
sistance. This portion lie thought "iVtis too
strongly concocted. It is only necessary to
present it to the lips lo have it rejected. ^ hall
Kentucky set the first example of rebellion?
Such he would call it, for such il; w.as, against
the constitution and against the settled prin
ciples of constitutioualliberty. lie would not
liko to see an act pa-;sed conformably to the
resolution; it would bring the state into con
fusion and anarchy; the constituted authori
ties would be put down, or there would be an
interregnum of poliiieal principle, and civil
commotion would ensue.
The clerk who would obey your mandate
.and disregard the decision of the judge ivould
bo removed from office by the court of appeals
for a dereliction of duty. If ho should obey

f»

3PEBCS OP MR. IiOBEBT90N,

h

the court and not the legislature, the clerk
would be sued by tho debtor, and the legisla
ture would be bound in honor to indemnify
him. One part of the community would be
thrown into active opposition against another,
and there would be no law but that of force, if
any attempt should be made to enforce the
act. But, continued he, the two years replevin
act is decided to be prohibited by the federal
constitution. An appeal has gone to tho su
preme court; suppose that court shall affirm the
decision. What then? Resist the general
GOVERNMENT? Whcucver such a crisis shall
occur, we shall see a practical illustration of
the benefits of the federal constitution — the ad
vantages of the union of the states. We may
see another Shay's insurrection, but there the
catastrophe will end. Let it not be forgotten
that it is the federal constitution that has been
violated, and that even a removal of your
judges will not effect tho decision, Kentucky
has no right to prevent its enforcement; it be
longs to all the states and must be as uniform
in its application as it is immutable in its
principles. The resolutions in any aspect can do ho
possible good, they may do much mischief, —
They may establish a precedent, which, if
sanctioned by the people, would, in time, tear
down one pillar of the political temple, and
the whole fabric will tumble into ruins. But
they can administer no relief. They will on
ly excite hopes which can never be gratified.
'There is only one remedy. Let the affairs of
the country go on in their usual and natural
channel; let the constitution prevail; give up
party strife and party pride and ainbition, and
act only for the permanent welfare and honor
of the people. Then confidence will be in
spired, industry will be stimulated, morality
Will resume her empire, and virtue and pros
perity triumph, 'i he people will look then to
the only sources of real relief — their own con
duct, a rich soil and a benificeut Heaven.—
But persist in legislative encroachments, and
relief itself is hopeless. Every legislative in
terference will render another more necessary
Keep up the credit of your p.aper, as well as
you can by prudent means. Do not relax the
sysiom in relation to it which has been adopt
ed; wind iuip slowly but certainly. The bank
is a sensitive plant, touch it and it dies. Let it
alone and the people will have confidence in
it, and that alone will make it good: and as
its paper is withdrawn, a better currency will
inevitably supply its place. You will never
have a specie currency w-hile you have depre
ciated paper.
The opinion of the court is not ruinous; it
will inflict little or no injury. It is the b' si
opinion for the people A\hlch could have been
;iven; and if it should happen to be severely
elt by some, it is not the fault of the court or
of th'e constittition Nor is the opinion "sub
versive of tho principles of civil liberty," un-
less'itbo inconsistent with those principles for
men to pay their ilrbts accoiding to contract,

I

or for the Legislature t» be restrained by thS
constitution. If such be the principle of civil
liberty, he did not desire or claim to be one of
her votaries. She was a licentious courtezan,
not the chaste vestal virgin exhibited in the
constitution. He thought that civil liberty
consisted in equal and exact justice, and
should still cling to that opinion.
Any other liberty than that enjoyed in the
inviolability of private rights, and integrity
of the constitution, is licentiousness. No com
munity was ever legislated out of debt, nor
ever will be. If Kentucky would profit by an
afflictive experience, she might yet be wise and
prosperous. This was a consummation (he said) which
he most fervently prayed for. His only in
terest was the glory and happiness of his
State. He was bound to it by many and strong
ties. It was his birth place. It embosomed
all that was most dear and endearing to him,
and he enjoyed a melancholy pleasure in the
hope that it would be the repository of his ash'
es. This State once occupied a proud emi
nence in the Union; "Kentuckian" was a cer
tain passport, for all who bore it, to the esteem
and affection of all who loved the brave and
tho noble. It is not so now; but he did not
even yet despair of an eventual restoration, if
the people are permitted to think and act for
themselves. They possess even yet all the el
ements of moral, of physical and of intellect
ual greatness. Do not stifle or relax them;
but incite them to development and activity.
This can only be done by a stable fixed policy:
an inflexible adherence to the principles of
sound political economy and of undisturbed
justice. Do not endeavor to excite the people
longer. They are nowquiescent; they will do
right; they will understand their constitution
al rights and at last sustain their constitution.
Having disposed of the first topic of discus
sion by suggesting some of the most promi
nent objectious to the resolutions in the ab
stract, he would (continued Mr. R.) proceed to
give some reasons in support of his opinion
that the decisions of the Court of Appeals
was correct. He would endeavor to show that
any two years replevin law which is retroactive
in its operation on contracts, is unconstitutional
and void. He would confine himself to the prin
ciple decided by the court, and although other
objections might be urged against the validity
of the replevin act on which they adjudicated,
ho should only argue that itwasinterdictedby
that clause in the federal constitution, which
declares, that "no State shall jiassany ex post
facto law or law impairing the obligation of con
tracts." In analysing this subject, (said he) it is
only necessary to ascertain with satisfactory
precision what is the constitutional import of
the expression, "the obligation of contracts,"
and what is "impairing" that obligation. Al
though there seemed to be a great diversity of
opinion in rclaliouto what is the obligation of
aeontraei,one

eontraei, yi-t he thought it strange that no
lie of those who denied the definition given

ON THE COURT OP APPEAIS.

01

\)j the tJourt, had eVer been able to state in wh.at
the obligation of a contract consists. Even the
¦long preamble to the resolution (incredible as
it may appear to one who never read it) does
not attempt to define it. The author of that
¦argument denounces the court for imputed er
ror; yet the an-xions reader looks in vain
through 'the twenty-six pages of swelling
sentences, and "metaphysical" subtilty,
for the source of that error. He is dumb
on the all important question, what is the
legal obligation of a contract. He would
be glad to know (said he) what right any gen
tleman has to assert so dogmatically that the
definition given by the court is incorrect until
he can shew, or at least attempts to shew, that
some other definition is the right one. Tho
obligation of a contract is some one thing, cer
tainly. It is necessary to ascertain what it
is, and that it is radically different from what
the court say itis, before their decision should
be arraigned. The author of the printed ar
gument might certainly, in his long discu.ssion,
have shown of what he thought the obligation
of a contract consists, if he really believes
that it does not consist of what the court has
decided that it does; for before he can know
that the court erred, he must know that the
obligation is different from what the court says
it is, and to know that, he must know what it
He ought, therefore, not only in jilstice to

the court, but to himself and his own charac-
terfor understanding to have condescended to
disclose the great secret — for secret it is if the
court has not found it, and secret will, it is
feared, always remain. At the threshold, there
fore, it is fair to infer that the judges are right
until their oppenents can tell what they believe
the legal obligation is, and from their silence
itis equally fair to conclflde that they are un
able to give any definition which is even plaus
ible; and that therefore the court have "hit the
nail on the head."
It is remarkable that in the printed speech,
if he had even a glimmering of light on the
subject, the author seems, in three different
.places, to have given, no doubt inadvertently,
different views of the obligation of a contract,
each irreconcilable with the other, two palpa
bly wrong, and one in exact accordance with
that given by the court. He expected to de
rive some assistance from the argument of the
gentleman, and thought he could shew that he
ad (without intending it) fortified the decis
ion of the courj; impregnabl}'. It has been said
that this argument "is a conclusive and tri-,
umphant refutation of the reasoning of the
court;" he thought that it would require micro
scopic vision to find where the refutation lurks.
He thought that it was a most "triumphant"
tindication of the court's opinion, because it is
supposed to embody all that can be urged
against it, and when that is examined and ana-
lized, it is found to contain no argument
'against the principle decided by the court, but
(wilhout intending to do it) sustains it: for
"wherever there is anything tangible in it, it is
in unison with tho doctrine of the court.
"Obligation," in tho Constitution of the

United States, means what it does elsewhere,
and what it imported in common use at tho
time it was inserted. 'I'o oblige is to bind,
force, coerce, &e. The derivative, "obliga
tion, " is the binding, forcing power or quality
of the thing. It is defined by Justinian to be
the ligament which binds, and by Pothier to be
'^vinculum juris" or bond, or tie, or chain of
right: a moral obligation or ligament is defined
to be that which binds the conscience, which is
the law of nature; and a legal obligation, of
course, that 'Vhich binds in or by civil law. —
The obligation of 'a contract is that which in
duces, compels, or ensures its enforcement. It
is not the instrument or agent by wfdch it is co
erced, but the right which the obligee has to use
coercion, that is the essence of the obligation. —
This is either moral or legal, and generally
both. When there is no municipal law, which
will compel the performance of an engagement,
that which induces the performance, is the nat
ural law, and is called the moral obligation,
which is either internal or external, imperfect
or perfect. It is internal when conscience is
the only persuasive or coercive power. Such
is the obligation of benevolence, gratitude, and
a long train of moral virtues. 'I'he obligation
of benevolence and gratitude, is the will of
deity, tho law of our nature. We are impelled
or induced to acts of benevolence, &c., by a
sense of respect for that will, and by the dic
tates of that law written on the heart; but tho
obligation is internal, it exists only in the bo
som, and is imperfect, because no external or
physical force can be exerted, to compel. In
a state of nature, where there is no law but
that of Heaven, man is responsible only to his
God for breaches of the imperfect, internal ob
ligations; tho obligation consists in a sense of
his responsibility to his maker and his own
conscience; "impair" this accountability, or
stifle conscience, and you "impair the obligation."
But when a man is responsible to his fellow-
man, who has a right to use force, the obliga
tion is external and perfect; and as this perfect
moral obligation consists in the right to apply
force, it can only be impaired by affecting the
force, or the right to use it. If the right to use
force be withdrawn, the obligation is therefore
destroyed; if the right be rendered less certain
or efficient, the obligation must be impaired, —
These are moral obligations. But in a state of
society there are legal obligations. Man hav
ing surrendered to society his natural right to
e.\ert force ou his fellow man, society alone has
the right to apply it. As the perfect moral ob»
ligation, ill a state of nature, consisted solely
in the force of the individual, or rather in his
right to use it, so in society, when transformed
into a legal obligation, it consists exclusively
in the force of the .community, or with more
precision, in the individual's right to use it;
and as each individual composing the body
politic, has surrendered his natural right to
force, the aggregate community is bound to ex
ert it for tho protection of his rights; and if
tho laws of society direct the application of
the united force in particular cases, the legal
obligation of those oases is the right to have the

03

SPEECH OF MR ROBERT&ON,

forte exerted. Thelegtl "obligation," then, of
a contract, is essentially and exclusively, the
right of the obligee to compel the obligor by law.
If this be not the legal obligation, there is none;
and there would be no difference between a
legal and moral obligation, or between a right
in a state of nature and a right in a s-ocial
state. If the civil law will not enforce a par
ticular species of contract, such contract has
no legal obligation: its obligation is purely
moral, binding only on the conscience; as in
the case of contracts prohibited by law, such
as usurious contracts and others. Can any one
believe that an usurious contract, if prohibited
by law, or a contract proscribed by the statute
of frauds and perjuries, has any legal obliga
tion? They certainly have none, because the
law will not enforce them. Is it not absurd to
say that that has a legal obligation, which is
contrary to law? When there is no law to
compel, there can be no legal obligation. A
contract contrary to law, is not in law obligatory;
acontract withoutlaw, is not in law binding;
a contract permitted by law but which the law
will not enforce, is not obligatory by law, but
binds only the conscience of the parties; the
obligation of such a contract, then, is moral,
notleg.al. Some contracts have both amoral
and a legal obligation; some have one and not
the other; and some have neither. A contract
which is not contrary to the laws of deity or of
society, and which the latter will enforce, has
both a moral and legal obligation; the moral is
not destroyed by the legal; the latter is only
superadded to the former. The obligation is
moral, because it is binding in conscience; it
is legal because it is binding iu law; as it
would not be moral if not binding in con
science, it could not be legal if not binding in
law. If then acontract have a legal obligation
only when the law will enforce it, it is the right
to use the power of the law to enforce it, which
alone constitutes the essence of the legal obli
gation, and consequently anything which di- ^
minishes this force or impairs the right to have I right to enforce a contract is barred by the stat
it exorcised, inevitably impairs the obligation, j ute of limitations, the legal obligation of tho
If the law of society declare that an usurious | contract is gone, but the moral remains— and
contract shall not be enforced, it has no legal] while the conscience of the obligor is not re-
obligation, but its moral obligation is not di- leased, his property and his legal liabilities
The law is withdrawn from the contract,

consideration, promise to pay B. |100 on a
particular day, and fail to pay on the day,
B. will have the right to coerce an indemnity
for non-payment, by appealing to the law. If,
when the contract was made, the law gave the
right to H. to coerce A., that legal right can
not be taken away by future legislation, with
out destroying the legal obligation of the con
tract; for whenever the laV refuses to oblige,
there can be no legal obligation. And by a par
ity of reasoning the right which A. had bylaw
to coerce B. cannot be suspended, postponed,
or rendered less efficient or certain, without
"impairing" that obligation. If, when a con
tract is made, the law of the place is pledged
to enforce it, would it be constitutional for the
legislature afterwards to repeal all laws giving
remedy and thereby leave the obligee in the
contract in a worse condition than he would
have been in, in a state of nature? In a natu •
ral state he would have the right to coerce the
obligor by using individual force, but this
right having been surrendered to society, and
that society having abrogated all law allowing
a resort to social force, there would be nothing
left, but the naked contract, without either a
perfect moral, or a legal obligation; the casket
would remain, but the jewel would be despoil
ed ; the body would be left, but the vital spark,
the very soul which animated it, would be de
stroyed, ^nch a law would destroy the legal
obligation of the contract. No man can or will
deny this: it must be, and certainly is, conce
ded by every member of the committee, if a
law denying remedy woulddestroy, would not
a law, suspending or protracting remedy, "im-
pait" the ie^oZ obligation? Tho conclusion is
not only fair, but inevitable. In the one case,
the obligation would, be destroyed, because
there would be no law to oblige;" in the other,
it would be impaired, because the right to
oblige by law, (which alone is the legal obli
gation) would be rendered less valuable, less
certain, loss efficient, less coercive. When the

minished; indeed it is r.ither enhanced, be
cause the integrity of the obligor's conscience
is then the only security which the obligee
has. A contract prohibited both by the laws
of God and of man, has neither a moral nor le
gal obligation. Such would be a contract be
tween iV. and B,, that ifi A. would kill a par
ticular individual, B. would pay him ,^'100. —
Such a contract would have no mor.al obliga
tion because contrary to the moral law. It
would have no legal obligation, because con
trary to tho civil law, and because there is no
law to enforce it. It is the "law," therefore,
th.at is the essence of obligation in each case,<
moral aud legal. Itis the law of nature act
ing on the heartwhich constitutes themoral, it
is the law of man acting on man, that cnales
the legal obligation; and any thing which im
pairs the force or ctlirienry of tho law in either
case, impairs tlie obligation. If A., for a legal

and leaves the parties liable only to the obliga
tions of good faith. Wherever the law with
holds its powers of coercion, there can be no
legal obligation, there is no obliging either par
ty by law. To shew still further, what is an
.obligation purely legal, wh.at, (he asked) is the
the^ obligation by which slaves are bound to
their masters? It cannot be moral, because
slavery is contrary to tho laws of a benignant
heaven. It is, therefore, purely a leg.al obliga
tion; the law of Kentucky tolerates the domin
ion of man overhis fellow man, and authorizes
the upplication of force by tho master, to sub
jugate, chastise, and imprison his slave. This
mere human legislation is the onlv tenure by
which the black man is cloven do-nni. Repeal
the laws permitting a master to chastise or con
trol the slave by force, or to reclaim him by
force or by suit, and where then is the obliga-

ON THE COURT OF APPEALS.

03

tion of slavery? It^'would be destroyed, and
universal emancipation would be the result. —
So when a debt is barred by limitation, the
obligor is absolved from all legal liability or
responsibility ill law, to pay it.
If when a contract bo made, the law allows
the creditor to force the debtor in three months
after judgment, and if, as has been shewn, this
right to force him by law, is the legal obliga
tion of the contract, would not a law very ma-
terhilly "imjiair" that obligation, which should
declare that the execution should not issue for
ten years after judgment, or when is.suod
should not coerce the debtor in less than fifty
years? If it would not, then there can be no
difference between impairing and destroying
an obligation ; for if any thing but total de
struction of the legal obligation by withdraw
ing the law, can impair it, such a law would
impair it. But there is a difference between
destroying and impairing a legal obligation . —
A man's constitution may be very much im
paired, his hold on life may be very much
weakened — still life is not destroyed, still he
clings to it. So the obligation of a contract
may exist in a very impaired state, the legal
hold which the creditor had on the debtor when
he made his contract, may be so much impair
ed that it may be of little or no value, and event
ually be lost.
The legal obligation of every contract is,
therefore, the eight of the contracting par
ties ¦to COERCE EACH OTHER BY LAW, and thereby
obtain indemnity; and any thing which weak
ens, postpones, or impairs that kiqht, necessa
rily impairs TH.AT OBLIGATION.
Mr. Robertson said, that it could hardly
be necessary to observe, that in using the
word obligation, the Federal Convention meant
the legal, and not the moral obligation. They
intended by the prohibition, to prevent some
sort of legislation, and this they could not
have done by denying to the States the power
to impair moral obligation; because no finite
legislature has the power or right to abrogate
or impair moral obligation. It derives its es
sence from Deity, and can'only be affected by
a change in the natural and moral code. Man
cannot repeal the laws of God, in all the plen
itude of his power. No human power can
ever hush the murmurings of conscience, or
exempt man from his moral obligation to do
right. But it is not necessary to dilate further
on this topic, because there is no diversity of
opinion in the Legislature, nor can there be
elsewhere, when there is any reflection, on this
subject. The constitution was applied to man
in society and not in a state of nature. Tho
Legislature has no right to impair a legal obli
gation: this is the intent of the constitution.
¦He had, (hesaid) detained the committee,
and he hoped not unprofitably, with this short
analysis of "obligation," for the purpose of
bringing the mind to some visible and tangible
point, some ultimate principle to which he
might fasten those who oppose the decision of
the court, and who not only fail to give any
.sort of definition of /e</«Z obligation, but seemed

anxious to avoid any scrutiny into the subject.
It was evident that the convention, who were
wise men, meant something by the use of tho
word obligation. They would, not have used
it as a mere expletive; supererogation or taut
ology is not attributable to them. They knew
what it did mean , an d they knew too, that it was
not the esseiice of the contr.act itself; because,
as before stated, there may bo many contracts
without obligation, legal or moral. Obligation
is an adventitious quality attached to the con
tract by law. It is not the mere stipulation or
agreement of the parties: first, because the
parties may make stipulations against the nat
ural as well as civil law, and then there would
be no obligation, either moral or legal, attach
ed to them: they would not possess this vital
principle. Second, Because it is not in the
power of any legislature to alter or impair the
terms or stipulations of the parties; these are
immutable except by the parties. 'The Legis
lature can only change the effect of the con--
tract, not its nature. To illustrate this idea,
suppose A. agrees to deliver to B., on acertaim
day, a horse of a certain value and descrip-
tion, can any Legislature convert this into a
contract to pay money, or tobacco, or to deliver
horses at a different time or of a different value
and description? Certainly not; whatever the
parties have agreed, is the contract, and the
Legislature cannot make any other contract for
theni. But the Legislature could, if not in
terdicted by the constitution, change the ef
fect or the value of the contract, and thereby
change the legal obligation, by providing that
if it were for money, it might be discharged in
tobacco, or if to be performed on one day, the
obligor should not be responsible by suit until
afterwards; but still the terms of the contract
would be the same, and the Legislature, by
legislating as supposed, would only change the
legal obligation of the contract. That obliga
tion being the right by law, to coerce the con
tract, must be impaire"d bylaw, which enforces
on either party anything else but the contract.
The Legislature, by declaring that the obligor
shall have longer time to comply with hiscon-
tract'than that agreed on, do not thereby change
the time stipulated by the parties; that is still
the same; they can only declare that, for non
compliance on the day agreed on, the obligor
shall not be sued until a certain other time, and
this impairs the legal obligation, which con
sists in the riiiht to sue and prosecute the suit.
The time for the performance in the contract is
not the obligation of the contract; for if the ob
ligor comply, the contract cannot be enforced:
if he do uot comply, then, and not till then, can
the obligor demand the interposition and aid
of the law, not to compel performance on tho
day which is impossible, but to obtain repara
tion for non-performance. If the obligation
consists in the time stipulated in the contract
for performance, that obligation never could be
impaired by any Legislature. It would be not
only impaired, but destroyed by the obligor
himself, and how would any Legislature after
wards impair what Avas already destroyed? —
No law can compel a man to perform on the

fi4

SPEECH OP MR. ROBERTSON,

day; it is only for failing to do so, that the law
coerces or obliges.
The convention meant to prevent Legisla
tures from depriving the parties to contracts of
some legal right in relation to them, not to pre
vent them from changing the time or other
terms, which, without the prohibition, it would
be ridiculous to suppose that they could do.^ —
The only mode in which the legal obligation of
a contract can possibly be impaired by legis
lation, is so to change the law for enforcing
the stipulation of the parties, as to render the
enforcement less certain, or efficient, or speedy,
and thereby diminish the value. This may
be done, either by po.stponing the right to re
sort to the aid and coercion of the law, or by
changing the effect of its coercive power, by
depriving the creditor of his ri.ght to compel
the thing for which he contracted or its equiv
alent. If the Legislature deny the creditor any
remedy for twenty years; or qualify it by de
nying him the right to coerce anything from
the obligor but tobacco, when he contracted for
money, the right of using the power of the law
to enforce the contract, is certainly impaired,
and as much so in the one case as the other;
for if the obligation be impaired, by refusing
him the legal means of coercing anything but
property when he is entitled to money, it must
be equally impaired by refusing him the right
to the legal means of forcing the money for
twenty years, unless he will take property,
when the law under which he contracted al
lowed him to coerce the money in three months.
There is no legal right when there is no legal
power to enforce it. This is self-evident. —
Bl ackstone says, that "that there is a legal rem
edy for every legal right;" whenever there is a
right without a remedy, it is not a legal but a
moral right. Hence there is no legal right,
where there is no legal remedy, 'the legal
right, therefore , consists in the law which gives
redress, as has been attempted to be proved, not
in any purtictilar mode of coercion, but in the
riglit to use the power of legal agency to en
force a just claim.
But, (said he,) while thosewho oppose these
doctrines fail to exhibit any other, they object
that they confoundright andremedy, Notso;
they are certainly mistaken. The decision of
the court, when examined fairly, asserts noth
ing new on right and remedy. The court only
decide this principle, that the obligation of a
contract consists in the legal right to enforce
it,notin theparticularform of coercion. There
is an obvious distinction between a right to
coerce, and the mode of exercising it. Where
the right to use force effectually is taken
away, there is no legal obligation. But as
long as the right to force is left unimpaired,
it cannot be essential that it should be exercis
ed in one mode or another, provided either
will effect the end; but no mode can be sub-
stited which will not attain the end. Remedy is
the means prescribed by law, to employ the
force to which an obligee is entitled, and may
at anytime be modified in any manner so as
not to defeat or postpone the ond The obli
gation is the right to enforce the contract; the

remedv is means given to enforce it. In a
state o'f nature the perfect moral obligation is
the right to use individual force: the exertion
of that force is the individual's remedy. When
A, is entitled to $100, by contract with B., the
legal obligation is A.'s right to recover judg.
ment against B., and use the power of society
to enforce the judgment. It does not consist
in the particular mode prescribed for obtain
ing a judgement, nor in any particular mode
of execution; it is not material to him, or to
his legal right or obligation, whether he shall
enforce his contract in the circuit court, or the
county court, or whether he do it by action of
debt, covenant, or petition and summ.ons, ho
that the right and power of coercion are not
destroyed or impaired. It would be destroyed
by refusing a remedy, because then there
would be no right to coerce it; it would be im
paired by so modifying the remedy as to ren
der the end le.ss certain or the right less valu
able, or the exertion of legal force less effectu
al. The obligation and the .remedy are not
precisely the same therefore. There isarad--
ical difference between them, as before stated.
There can be no legal obligation where there is
no legal remedy; but the moral obligation and
moral right remain the same, with or without
the remedy. I' ight is a compound, generally.
Its ingredients are moral and legal. The latr
ler is gone when the remedy is destroyed, but
the former still remains, and therefore it is
said, and correctly, too, that there is a differ-.
ence between the gross right and the remedy;
that although there be no remed.V, there is a
right. The obligee has aright to his debt bar
red by limitation, but it is only a moral right.
There is also a diiference between legal right
and remedy, if the latter be understood to
mean only the mode of proceeding; for a
change of mode will not destroy, although it
may impair the legal right. But if remedy be
understood to be the exertion of legal force to
effect right, and not the particular "modus
AGENDi" of that force, then between this sort
of remedy and legal right there is no possible
difference; because where there is no legal rem
edy, there is no legal, but only a moral right.
The obligation of acontract is, therefore, de
stroyed by taking away all remedy; it is im
paired, by so changing the remedy as toren-
derit less efficient, or speedy, or certain, or
valuable. While the right is conceded to the
Legislature to change the mode of action or
execution, it is insisted on, as a clear proposi
tion, that they cannot do it, so as to "impair
the obligation of contracts." If they can do
it constitutionally, in such a manner as ta
postpone the collection fifteen months Inngej
than the time beyond which it could not have
been delayed by law when the contract was
made, they would have the power to postpone
it fifty years; for if the power to postpone exi
ist at all, it is only limited by discretion and
expediency. And if the Legislature have the
power of postponing it, they would have the
right to deny it altogether. And if they have
these powers, the clause in the constitution
])rohibi' ing States from impairing contracts.

ON THE CCUliT OF APPEALS,

G5

i* nugatory and cnnuot possibly over be viola-
tod. Suppose A. lend B. $10,000 in specie, on the
faith of the act passed last session, declaring
$hat such debts .shall iiot be replevyable more
than three months, and suppose, shortly al'ter
the loan, the' Legislature p.nis a law allowing
B. to replevy ten years unless A. will take hor
ses and cattle — who would say that suc'u a l.i'.v
would be constitutional? Not one inan.
Here nothing is done but to change the rem
edy. But it is so chanf;ed as to impair the le
gal obligation. If the change had only been,
that a petition and summons might be sued
outinstead of debt, &c., the obligation would
uot be impaired; t'ne force which A. had a right
to use to coerce the contract, would not be di
minished or postponed. 'l'lie<lcgal obligation
of the contract would be A.'s right by J;uy to
force the specie out of B. at the e:jfpivation of
three maiiths. Aiiy act whiph would uot allow
a coercion of specie, would certainly' impair
that obligation, and as cerlainly would it be
impaired by not permitting the coercion of the
specie in less than two years
' Suppose,' (said he) Mr, Chairman, you have
the right to go to Lexington to-niorrow,'it could
not materially affect the right, to travel in a
carriage, on horse, or on foot, so that in either
mode you may arrive at your destiiiatiou dur
ing the ()ay. But suppu.~e that you were com
pelled to go in a loaded waggon, which pyuld edy Vi'ould annihilate the legal right
hot arrive until the ne.x:t day, or were compell '^ -  ---' ¦¦'-''¦^  i <i,.,f „

the consent of thc! plaintiff. For tho purpose
of shewing that the court had uot reversed
any of their former opinions in relation to
right and remedy, (he said) he would refer to
the case most relied on in 1st Bibb's reports,
5151-1). The court in that case decide that the
act allowing a petition and, summons to be
brought, on a bond for money executed before
tlio act p;tssctl, is notuiicoustitutional. They
say that "it is the mode of recovery only
wliich is changpd." Apd who but the merest
tyro in Ihe art of reasoning, would ever havo
thought that such a law, only changing tho
mode of action, -without affecting the end,
could bean impairing of the obligation of tho
contract? This is the principle settled inall
the cases. But when did that court, or any
other, ever decide, that if the remedy be taken
away, the legal obligation remains? Or if it
bo .-,0 altered as materially lo postpone the
right of coercion, which is the essence of tho
obligation, that the obligation isnot impairt^d?
No such case can be found in any book of re
ports. It was almost self-evident, (he said) that if
tht^re were no leg.al reniedy there can be no le
gal right. Ho did not know anyone who
would deny it, Itwould beseenthat the pre
amble did not controvert it. He did not know
how those who made this concession could

escape the eouclusion, thatto destroy tlierem-
I nil ,r -T^',-,n 1 ,1 n n Ti ill 1 I'm f /i tl HI I en It I ]-i n-l,t H H d IcaVtJ

ed to goby way of Cincinnati, iu consequence
of -n'Mchyou could not arrive in Lexington in
loss than two weeks. These would all be on
ly different ^modes of conveyance, but would
there not be' a great difference in their efft-cts?
'The first modes would not postpone or iijipair
the right; thc last would. So, it when a con
tract is made, the obligee has the right to. co
erce the obligor within three mouths, and tho
nature of the remed.y be so changed that he
shall not be penuitted to do it in les.s than two
years, the right Would bo affected (
that is, the right to use coercion, which
obligation. Bat if the mode of suit only be
changed, so that the right to enforce the con
tract is not delayed or impaired, tho obligation
is not affected. The difference is in the rnode
aivi the end of the remedy. '1 ho mode is im-
' roaLeria.1 so long as the end is attained. Jt is
not important to A. by what meads the law
shall con)pel B. to pay his luoijey, provided it
forces him tO pay specie and within' the time
withui which itis pledged to do it. And this
has always beert the doctrine of tho court of
appeals, and nothing else can bu made out of
the eases cited iu tho preamble to the resolu
tions. Thev there decided that tlio niuc'e of
refflody coufd bx changed without iniptiiriug
the right. So they say yet.' But they never
decided, nor ever can, that a retrjspective act,
taking away all remedy, or Buspending or post
poning it for the purpose of. delay, is constitu
tional, f;e;nody is given to the plaliqtifffor
his benefit, but an extension of replevin for the
putposu of delay. Is noi giving th'j plruutiff
reme'Jv;1ti^giving;he-J''r.;:el.in; r-^li' f.-i-rain t

it a mere moral right^and that consequently,
to postpone or buspeud the legal remedy,
would impair the lei;al obligation.
^io one who understands the subject con
tends that the obligation of a contract consists
iu tho kind of remedy; but in the right to havo
some remedy, or iu other words, to have some
legal means of enforcement. Those means
can be modified or altered, so long as tho
change does not impair the right to coerce. — •
Now, if to abrogate all remedy would de
stroy, would not a suspension, postponement,
dor impaired; lor d'iminution of its. power or efficiency, ini-
, which is the pair it? Undoubtedly.
The abolition of the ca sa, as it diminished
or circumscribed the legal rightof thecreditor
to coerce the debtor, would have impaired the
oblibation, if no other means had been sub.sti-
tuted which are as efficient. But the legisla
ture have substituted for the right to act on
the person the right of acting on equities,
which is not oidy as -efficacious, but more so.
They did not therefore, by this modification of
the remedy, impair the obligation, any more
than they, did by giving a petition aud siim-
mon-s instead of au action of debt.
It w;id the duty of the convention to insert
such provisionsin the Federal Constitution,
aswDul^ secure the union of thc st.ates, the
great end of tho Constilution. Nothing they
Knew c.uld mo:e certainly effectuate this ob
ject than to prevent collision of interests or of
feeling as far as possible among the citizens of
the different states. They knew from "expe
rience" that if one state would suspend-thc
collection oi debts, utters -n'ould retaliate,
and'hattheany '"-'''-''''''¦' ^¦"'¦'•'-¦¦'''^"¦- «'0'i'4

06

SPEECH OP MR. ROBERTSON,

be produced. They therefore determined to
avert such distracting legislation, by denying
the power to the statcs;and the states, having
surrendered it, cannot complain now that they
cannot exercise it. It was yielded up on the
altar of the general good — the union; and it is
the interest of all the states that none should
have this power. How would Kentucky feel,
if after lier citizens should sell on a credit
their produce, to a great amount, to the people
of New Orleans on the faith of a law in Lou
isiana when the contracts were made,-^enabling
the sellers lo coerce payment within three
months, the legislature of Louisiana should
pass a law, for the avowed purpose of affecting
the Kentucky creditors, that no debt should
be coercedin less than five years. This might,
and probably would ruin the Kentucky credit
ors; and would the people cf Kentucky be sat
isfied? Would they not pronounce such an
act a flagrant violation of the Federal Constitu
tion? Would they not insist that the clause,
which has been the subject of debate, was in-
.serted to prevent such unjust interference? —
They certainly would, and justly; fur if such
legislation be uot interdicted, it can avail noth
ing to prohibit any other interference in pri
vate contracts, because theunjust end can al
ways be effected in this mode. The convention
dicl not intend that their object should be thus
defeated -and their provisions eluded. 'I hoy
did not intend that their provision should be
a blank. They intended it to have some prac
tical effect.
Suppose after a debtor has replevied two
years, you pass an act authorizing another re
plevin of two years longer, would it be consti
tutional? No! But if it were constitutional
to extend the three months to two years, it
must be so to extend two to four, and so on ad
infinitum, so that the creditor would never get
his debt.
Many members of each denominationin this
legislature, seem desirous to pass a law to re
duce the replevin to three months, on all con-
iracts which shall be made after the 1st of May
next, .suppose the law passed, and contracts
made on the faith of it, could the next legisla
ture extend the time of replevin to two years,
so as to operate on such contracts? If you
could, why pledge yourselves by declaring that
on all contracts to be madeafter the 1st ofMay,
there shall be a replevin of only three months?
It would only delude.
Suppose A. trust B. for a large sum, on the
credit of a large estate belonging to B., which
at the time is liable to the payment of the debt
by law; would not a subsequent enactment ex
empting all B.'s property from execution, be
fore A.'s dpbt be paid, very much impair the
obligation of the contract? No one can con
trovert it. But if the obligation consist in the
terms of the contract, or the time stipulated for
the performance, such au act would not impair
it, nor would any other which only deprives
the creditor of the legal means of collecting his
debt! This would bo the inevitable conse
quence of any other doctrine than that contend
ed for in the argument: und hence a legislature

might abolish all remedy, fand leave the ere.d^
itorin a worse condition than he would be in,
in a state ot nature, if the obligation of the
contract do not consist in the right to use ths
agency, of law to enforce the contract, and if
impairing or postponing the action of that agen
cy bo not impairing the obligation. Such a
construction of the. constitution would render
it ridiculous. He thought, -he said, that he had succeeded
in showing that the legal obligation of a con
tract consisted in the right which the oblige»
has by law to force the obligor to make him rep
aration for non-compliance with his engage
ments, and not in the mode of exertingthat
force: that any law destroys this legal right or
obligation which abrogates all means of using
this force, aud that any law which impairs the
force, postpones its exertion, or affects the
right towield it, impairs the obligation. And
he trusted that he had shown that these doc
trines were in perfect consonance wilh all the
decisions, in relation to right and- remedy, and
the power of the legislature to regulate and
modify the remedial system.
The conclusion, he thought, must be felt as
strong, plain aud difficult to escape, that a re
trospective law, suspending or postponing tha
right of legal coercion, is in direct violation o£
that clause in the Federal Constitution which
has been mentioned, and also repugnant to the
clause in the Kentucky constitution on the
same subject. One interdicted any law "im
pairing the oftZsyation of contracts:" th« other.
"any la-w impairing contracts." It would be
difficult to Shew how a law could impair a
contract without impairing the obligation of a,
contract. He would leave it to, those' skilled in
dialects and casuistry tp Shew how it could be
done; he expected never to hear the solution..
But however that may be, it is sufficient that
the Federal Constitution has been violated: and
if it was not violated it never will or can be.
He had demanded of those who denounce the
opinion of the court (and he would now reite
rate that request) to imagine any legislation
which will come within thc scope of the pro
hibition, if the two years replevin in its retro
active operation does not? Such a case had
not been stated, and he did not believe that it
could be.
The constitution certainly means something:
what then does it mean? If, said he, we con
sult cotcinporaneous construction, the opinions
of those who made the constitution, the ac
knowledged object of the provision in relation
to the obligation of contracts, and the decisions
of the Federal Court, and every other court that
ever has adjudicated on it, we shall find all in
harmony aud establishing the very principle
contended for in this argument; and should not
thisbe sufficient to still even a lingering doubt?
Hhat principle can present a stronger mass of
intrinsic argument, or a larger column of au
thority in its support? , This must (he humbly
thought) be unanswerabte. Let him only who
is lost in the mist of Phyrronism doubllonger,
To such an one reason is lost, and to him it
would be unnecessary to exhibit the addition-

ON THE COURT OF APP.'A" S,

»i authority of all writers on natural and po
litical law in confirmation of the definition giv
en of legal obligation.
While the Federal Constitution was in a
state of projjation before the American people,
for their adoption, Mr.Hamilton and Mr. Mad
ison, who were very distinguished members of
the Convention, and Mr. Jay, afterwards Chief
Justice of the United States, published a se
ries of numbers signed "FuBLius," developing
theprinciples and objects of the constitution;
and answering objections to it. These num
bers were then, and are still considered the best
exposition of the constitution that ever was
published, and are now appealed to aS the text
book. In the seventh number, Mr. Hamilton,
in speaking of the causes of coUisiou among
the states under the confederation, say.s: "We
have observed the disposition to retaliation ex
cited in Connecticut, in conseqence of enormi
ties perpetrated by the legislature of Rhode Is
land; and may we not reasonably infgr that in
similar cases, under other circumstances, a
war, notof parchment but of the sword, would
¦chastise such atrocious breaches of moral ob
ligation and social justice?" He here alluded
to a law of Rhode Island, which (the people
being very much indebted to Connecticut) pro
vided that debts should not be collected for two

yearS;

unless the creditors would take a depre

ciated paper money. Tihis provoked a retalia
tory law in Connecticut, which prohibited the
citizens of Rhode Island from suing in the
courts of the former stat<!, which produced a
very angry contest between the two states. —
And this is stated by Hamilton to have been
one reason for that clause in the constitution,
which prohibits laws impairing the obligation
of cohtracts; to prevent the recurrence of sim
ilar legislative interferences between debtor
and creditor, was the principal object. Mr.
Madison, in commenting on the same clause in
the 47th number, after shewing that the object
ofthe convention in adopting the clause, was
the same as stated by Hamilton,, and that ex-
jterience had shown the necessity of interdict-
ingthe legislatures of the states from passing
.laws impairing the obligation of contracts, ob
serves: "The sober people of America are weary
,of the fluctuating policy which has directed
the public councils. They have seen, with re
gret and indignation, that sudden change and
legislative interferences in cases affecting per
sonal rights, become jobs in the hands of the
.more euteiprising and influential speculators,
andsnai'es to the more industrious and less in
formed part of the community. They have
seen, too, that one legislative interference is
but the link of a longchain of repetitions; ev
ery subsequent interference being naturally
produced by the effects of the preceding. They
very righfully infer, therefore, that some thor-
.ough reform is necessary, which will banish
speculation on public measures, inspire prn-
'cfenceand industry, and give a regular course
to the business of society." How completely
do the sentiments here expressed, apply to the
condition of Kentucky and to her legislation for

ison was not prophetic; it w-as the language of
experience, and actual observation. He de
scribes exactly such legislation as that of Ken
tucky, mentions its deleterious effects, and
shews that the object of the people was to be
forever afterwards exempt from its afflictions,
by the insertion of the clause in the Federal
Constitution which has been mentioned. He
says, too, that experience had shewn the neces
sity of preventing the passage of laws impair
ing the obligation of contracts. He here al
ludes to the legislation of the states from 1782 to
1788, when the convention assembled. This
legislation impaired the obligation of contracts;
let this not be forgotten, arid it will settle all
dispute. ¦
'1 he only object, he says, for inserting in the
constitution the clause in relation to the obli
gation of contracts, was to prevent the same
sort of legislation in future. What was this
legislation? It consisted of suspension laws,
retrospective replevin laws, and laws indirect
ly to force the creditor to lake depreciated pa
per, by compelling him to wait a long time for
his debt, if he would not take it. This Mr.
Madiifon characterizes as ruinous legislation,
which impairs the 'obligation of contracts,' and
.theiiefore the words "obligati'ons of contracts"
were inserted in the constitution, as most ap
propriate to the object of preventing its re
currence. The conclusion is irresistible, that
if the legislation of the states before 1788, im
paired the obligation of contracts, the two
years' replevin law of Kentucky must also
impair it. There is no difference. Who can
discriminate any? And what Messrs. Hamilton
and Madison wrote on this subject was never
contradicted. On the faith of it, the different
states ratified the constitution, apd therefore
must have given the same construction to that
clause, and have been satisfied with it. What
better evidence of what was intended by the
clause could be required or given, than tho
opinions of those who inserted it, and of those
who afterwards ratified it? They meant what
the court has decided, and '\vhatever they in
tended to do is done.
But a further and stronger testimony in be
half of the same construelion is furnished by
Luther Martin, a distinguished member of tho ,
convention, who, iu his apology to his constit
uents, for voting against the con.stitution,
stated, as the reason, thafj he was unwilling
that the states should surrender the power of
interfering for the relief of debtors, and said
that all interference is prohibited by the clause
in question. Could he have been deceived'^
Could his constituents have been deceived?
Such was his opinion and theirs', of the effect
and objtct of the clause.
If, said Mr. Robertson, any further evidence
could be necessary to show what Mr. Madison
meant, in what has been quoted from him, and'
what those who adopted the constitution in
tended, it can be abundantlj' furnished by a
recurrence to Ihe history of the United Sta'tes,
immediately preceding the ratification of tho
states; and here will be seen, in striking Col-

several years ! But the language of Mr. Mad- 1 ors, what sort of legi.'lation the convention in-

SPEECH CF MR, ROBERT.S "JX,

tended to prevent. Rams,iy sayp,in the third
volume, 77th pago, of his history of the United
States — "Stale legislatures, in too many in
stances, yielded to the necessities of their con
stituents, ahd passed laws, by which the cred
itors were either compelled to wait for pay
ment, or to take property at a valuation, or pa-
]ier money, &^."
To prevent similar legislation, tliis clause of
the constitution was adopted; and is not the
tWoyears' replevin act a precise parallel of the
legislation mentioned by Ramsay? And still
it is contended that the constitution does not
apply toil! Mnrshall, in his life of Washing
ton, page 85, after stating that two great par
ties grew out of the'efforts for relief, shortly af
ter the revolution, says that the result of their
various and bitter contests, were relief, delay
and suspension laws, which produced great
enibarr.assment.by the instability of the public
counsels, and want of confidence in the gov
ernment and individuals, still further says —
"The hope and fear still lemained, that the
debtor party would obtain tho victory at the
elections; and instead of making the painful
effortto obtain relief by industry and economy,
many rested all their hopes on legislative in
terference. The mass of national labor and
wealth was consequently diminished. In every
quarter were ftiund those who asserted that it
was "impossible for the people to pay their
debts, and in some instances threats were used
for suspending the administration of justice,
<6c." This language is very explicit and ap
posite; nothing can be more true; it is verified
by Kentucky. Those who formed the federal
constitution had experience on this subject,
which the people of Kentucky will ere long
have, and resolved to prevent the evils depict
ed by the historian, from ever being produced
in the United St;ites, after the adoption of the
constitution. Is not the extract just read, a
faithful history of Kentucky, at this time?
And can it be pretended that the constitution,
which intended lo guard against tho evils so
well portrayed, does not apply to them?
But these evidences are well fortified by ju
dicial decisions. Since the late war. North
Carolina passed a retrospective replevin law.
Its courts declaredit to bein violation of that
clause in the federal constitution, which pro
hibits laws impairing the obligation of con
tracts, and the people acquiesced. Missouri
passed a similar law, and the courts there
gave a similar deci.sion, ¦«''hich public senti
ment sustained. In Tennessee was a similar
law, and a similar decision. Chief Justice Jay
presiding in the federal circuit court of Rhode
Island, shortly after the adoption of the con
stitution, decided that a similar law in that
state was unconstintional. This decision was
never reversed. Every court in the United
States, which has decided the question, has
given the same decision, as far as thcie is any
information on thc subject, and it is not proba
ble that any court will evergiveadifl'erent one.
Is it then fair, or just, or prudent, to assert so
dogmatically as some have done, that the court
of Kontuckv ha=i decided wrong? If the court

be wrong, then those who formed the constitc-
tion and thore who ratified it, did not know
what they were doing, and failed to do what
every candid and well informed man will .ac
knowledge, they intended to do. The histo
rians of the times were wrong, and the courts
have all been wrong. This is strong and bold
j ground, especially for those who do not offer
any substitute for the principle settled by the
court. The court is right, and their opinion
will never be reversed.
j Retrospective laws, even when not prohibit
ed by the constitution, are unjust and inipoli-
|tic;andthe most absolute despot in an en-
Jliii-htenod age and civilized community, rarelv,
i if ever, ventures to punish his subjects by "ex
post facto" laws, or to divest them of vested
rights, by retroactive ordinances. If the leg
islature have the power to divest a vested right
to property, they must have the power to pun
ish a citizen by an ex post facto law; a lav
which declares that to be illegal which was le
gal, criminal which was innocent, when it 'was
done. Itis of the essence of constitutional legislu-
tion, that so far as it can affect vested rights,
it-shall be prospective in its operation. Men
enter into society for the purpose of having se
cured to them, invariably and certainly, those
rights to which they become entitled, by con
tract, or otherwise. The only legitimate ob
ject of legislation isto enforce the rights of in
dividuals — not destroy them. What would bo
said of a law, which, on its face, should de
clare that it should be in force from and after
ten years before its passage? Vv'as such a pro
vision ever seen in any law? But the two
years' replevin act is intended in effect, to be
in force, to operate on rights which may have
been vested by law more than twenty years
before its passage. By thc constitution, the
parties to contracts are to be entitled to (Ac ZeyaJ
rights, when their contracts ai-e to be enforced to
which they were entitled when they were made.
He would, said he, conclude this part of his
argument, by propounding three simple ques
tions to ' those who are opposed to the view
which he had taken of the subject: Ist. If tho
legal obligation of the contract is not the right
of the obligee to enforce it by the jmweY of the
law, what is it'/ 2ud. If a retrospective re
plevin of two years '\Vill not impair that legal
obligation, what wilH7tt;)air i(.' 3rd. If the
legislature can constitutionally pass such an
act, what can they not pass wilhout violating
the constilution? It is the duly of every one
to answer these questions explicitly and sat
isfactorily, before he arraigns the decision of
the court. Lethini answer thus, who can.
He would next, and lastly, ho observed,
proceed to answer arguments used against the
decision of the court — and this he would do by
a cursory review of the preamble to the resolu
tions. That contained all .that had ever
been thought of on that side before, and a great
deal more. He should not be able to examine
it ^s niu<li in del ail as he desired, and had in
tended; he found himself too much exhausted,
after havingtpokrn thrc* hours, to occupy tha

OH THE COURT OF APPEALS.

door much longer. He wouldtherefore hasten
to » oonolu.sion of his argument, afler a short
examination of the preamble; and in reviewing
it he had expected to justify 'what he had al
ready said in characterising it.
In page 3rd, as printed in the journal, the
authorsays, "The obligation which is denom
inated legal, results from, and is imposexl by
thc laws of society. But the laws of civil so
ciety are but declaratory of the la'ws of nature;
therefore, the obligation which results from
the laws of nature, results also from the Laws
of civil society. When considered as resulting
from the former, it is binding only in con
science, aud is denominated a mokal obliga
tion; but when considered as resulting from
the latter, it is denominated a legal obligation,
and is externally binding."
After using this language, could it have
been imagined that the- author could resist the
doctrine that the legal obligation, of a contract
consists in the law and its binding efficacy?
He says that legal obligation is that which "re
sults from, and is imposed by the laws of civil
liberty," and is "externally binding." How
does it "result from the laws," when there is
no law recognizing it or enforcing it? The
law must be in operation or it cannot impose
the obligation. How is it "externally bind
ing" if it be not the law which makes it so?
In this extract is given a very specific defini
tion of both moral and legal obligation, in
which it is admitted that moral obligation
consists in the binding force of conscience, and
legal obligation in the coercion of the laws of
society. What else has been contended for in
this argument, or iu the opinion of the court?
And how can the conclusion be avoided, that
if there be no law to coerce,.there is no legal ob
ligation, and that if the coercion of the law, or
the right to use it, be suspended or postponed
'by the legislature, the legal obligation is im
paired? The author no where extricates his
argument from this embarrassing difficulty.
and it is only fair to reiterate, that he ha5 sus
tained the only principle settled by the court.
But there. is' an evident incongruity in the
seatiments embodied in the extract. In another
sentence, moral and legal obligations are con
founded, for it is assertetl that the "obligation
which results from the laws of nature, results
also from the laws of civil society." And is
there no moral obligation, when there is no le
gal obligation, and no legal, when there is no
moral obligation? Where is the legal obliga
tion of a contract which is illegal? It does not
exist, but the moral obligation does. Where
is the moral obligation of a slave to serve his
master. It does not exist: still the law com
pels the slave to be subject lo the dominion of
his master. It was stated in another part of
this argument, that the definition given in the
preamble, in coincidence -with that given by
the court of the legal obligation of a contract,
escaped the author, without design. The rea
son of that statement is now apparent, for while
it is admitted that there are legal as well as mor
al obligations, and that legal obligation is im-

posed by law, there is sa attempt made to con
found them, as has been shown.
In page 5, itis contended that perfect mor»l
obligation results from the moral sense of tho
obligor, and not from the obligees'a rightto use
coercive means. If this be true, what difference
can there be between moral obligations, per
fect and imperfect? An imperfect obligation
results fi'om the dictates of moral propriety.
A perfect moral obligation results from some
thing additional, or it would be as imperfect
as the, other. It is the right to coerce by phys
ical force that creates a moral obligation per
fect. When this right does not exist, the obli
gation is reduced to" imperfect, but is still an
obligation, becausfe the conscience persuades,
obliges. It cannot then be true that the right
to u.e force is no ingredient of a perfect obliga
tion; itis the very essence of it. If the author
could have succeeded in this delusive idea, he
would leave tho reader to infer (for he wa»
not willing to state it himself) that legal obli
gation does not result from the right to use le
gal force, although he admitted that it does in
the extract which has been read; and that it
does, has not only been clearly shown, but
would be evident from this consideration — that
if it does not, then therewould be no differ
ence between legal and moral obligations,
whether perfect or imperfect, both depending,
according to the argument in the preamble, ou
the moral sense.
In the same page it is assijrted, that the right
to use violence results from the obligation,
and is exerted to enforce it. It should have
been recollected, that it is not the obligation
which is enforced, but the contract or duty ;
and that it is the right to enforce it which
creates the obligation — is its very essence; it is
absurd therefore to say that the o6%a(io a en
forces the obligation. But in the next page the
fallacy of the argument is shown by the au
thor himself in a striking and ludicrous man
ner, by so;ne illustrations of the principle con
tended for on which hang all the conclusions
of the whole printed argument. He here asks
whether if B, a hunter, procure furs from C, a
trapper, and promise to return him skins in ex
change, but fail to do it according to contract,
does the right of C to exact reparation by force
constitute the obligation of the contract, or does
the right to use the violence result from tho
breach of the contract? And he answers him
self, that the right to force results from the
breach. This is only an exemplification of the
idea which has just been, attempted to be re
futed. The right of C to exact reparation by
force is the obligation which induces or forces
compliance by B, and the object of force is not
to coerce the obligation or binding, but the
contract or its equivalent. But a better an
swer to this case may be found in the case it
self. The author here states, "the obligation
to pay them (that is the skins) is of a perfect
sort; (" has the right to exact reparation by ,
force." The obligation it is admitted then is
perfect, because C has a right to force; if he
had not a right to force it would consequently
not be perfect; and therefore it i> the right to

10

SPEECH OF MR ROBERTSON,

resort to force, which alone constitutes obliga-
<ion in the opinion of the author. After hav
ing thus admitted that the right to force consti
tuted ihe obligation, could it have been believed
that he would, in the next sentence, endeavor
to prove that the obligation resulted from the
breach of thc contract, and that a violation of
the contract was a violation of the obligation?
But it may possibly be said that he intended
only to say that the right to use force resulted
from the breach of the contract. If he did his
ease proves nothing, except that the right to
force is the essence of the obligation, as by the
court decided; for conceding that the use of
force is consequential to the bi-each, does not
prove that the right to use force is not the ob
ligation. The right to force is the obligation
the exertion of force is only the enforcement of
the right or obligation. But on the same
page the huiiter and trapper figure in another
and equally strange attitude. It is asked
whether 0 could not, if h-e chose, have given
B indulgence, and whether the obligation of
the contract would thereby have been impair
ed? It is difficult to give a grave answer to
this, and it should only be answered by anoth
er question. Could not the creditor have in
dulged the debtor in the case decided by the
court? Could he not have forgiven the debt?
And would that have impaired the obligation?
The constitution did not intend to prohibit a
creditor from being generous to his debtor, but
only to deny to the legislature that privilege
witliout the consentof the creditor. But B and
C, before they retire, are exhibited in a still
more extraordinary attitude. It is asked on
the same page, whether, as C had a right to in
dulge B, society to whom C has yielded the
right to use force, has not the same right to in
dulge him? Can any one believe that this
question is asked seriously? Is not the author
•caricaturing his own argument? The doctrine
which he is endeavoring to illustrate through
Jits dramatis persona3, the trapper and hunter,
is in plain Lnglish this: The gentleman from
Jefferson has a right to give away his whole
¦estate; therefore the legislature can give it,
nolens volens, willing or unwilling. But the
gentleman would not submit to such "usurpa
tion." He would say, that although he had
surrendered to society the right to compel his
creditor by force, he had not yielded to them
the right to elect for him whether it should be
^ised, and that the constitution reserved to him
the exclusive right to his own property, the
rightto give it, or to recover it, when he should
think fit to demand the coercion of the law.
Society has not the power, in these United
States, constitutionally, to take away the vest
ed right of the individual citizen withbut his
consent, or without returning him an equiva
lent. But the trapper and hunter illustrate the
'Whole argument of the preamble, and if the
principles in these exemplifications are un
sound, the whole doctrine is radically wrong.
Does any one believe that, because the hunter
had the right to release the trapper from the
obligation of his contract, the legislature in a

well regulatefl community have the same pow
er? If they have, they are more absolute than
the Autocrat of Russia. If they have not, then
according to the argument in the preamble,
they have only the power of modifying the re
medial laws so as not to destroy or impair le
gal obligation, which is exactly what is urged
by the court. The arguments illustrated by
the trapper and hunter are "obviously and
palpably" fallacious, and consequently tho
great superstructure built on them must fall.
But in page 22, the author hints that the ob
ligation of a contract consists in the time given
by its terms for performance! ' Nothing is more
absurd than this, as has been shown in this ar
gument, and that of the preamble too; and it
is alluded to now to justify the declaration that,
if any definition be given of the legal obliga
tion of a contract in the preamble, there are
three, all different, and two palpably wrong, to-
wit: that it is the moral obligation, and that it
is the time; and one in exact consonance with
that given by the court, to-wit; that it is thele-
gal right to enforce the contract by legal means.
On which of these definitions does the author
rely? Only one will sustain him , and that is
the one given by the court, and therefore he
fortifies the decision of the court, while he is
endeavoring to undermine it. But why did
he not plainly and openly give some single
idea of legal obligation, and show that it was
inconsistent with the opinion of the court?
The only answer is, because it could not be
done. If there was any attempt to show what is the
legal obligation of a contract in the whole
preamble, except those three which he had an
imadverted on, he desired, he said, that the
author, or some other gentleman, would put his
finger on it. It could not be shown. 'Where
then is the long argument? It is vanished, is
intangible, invisible, incomprehensible!
He might, he said, safely here leave the pre
amble, but he felt it to be his duty to notice it
still further.
In page 8, itis stated that Montesquieu lays
it down as political orthodoxy, that laws ought
to be relative to the nature and principle of the
government, and the climate of the country.
This is a self-evident truth, a political axiom,
and it is a strong argument against the doc
trines intended' to be maintained by the use of
it. The principle of the government is jus-
ticp, its nature equality of right, its object iS to
enforce, not to impair contracts. Conform to
this fundamental principle of legislation re
commended by Montesquieu, and there will be
stability in your counsels and confidence in
your acts, and the spirit of legislation will be
wise and constitutional. But never permit the
atmosphere, natural or political, whether torrid,
temperate, or frigid, to dissolve the principles
of your government; adhere to Montesquieu,
and your constitution is safe. If the author of
the preamble expected to prove anything by
his quotation, it was, that when the poltiical
atmosphere is heated, the constitution must
bend to it. If the quotation prove this, it
proves toorauch; if it do not, it proves nothing.

ON THE COURT OF APPEALS.-

71

except that the principles of the government,
or in other words the constitution, must con
trol its legislation, which is good doctrine, aud
decisive of this contest.
But on the next page, and in the same para
graph, we have, said he, a still more extraordi
nary idea. The author here says, "strange that
in a republic the appellate court should have
seleeteu fear, the principle of despotism, as
the motive to duty." What is the principle of
all law, human and divine? , Is it not to com-
ptl, by its sanctions, conformity \o its provis
ions? Does the law persuade, or does it co
erce? Why does the law denounce punish
ment on the criminal? Is it not to deter from
the perpetration of crime? And does the law
in this instance appeal to our fears, or our vir
tue? If the virtue of mankind were our only
security, all government would be unnecessary.
But itis the nature of all government', to com
pel submission to its mandates hj force — a leg
islative act would not be law unless it were
compvdsory. The obligation of a contract
would be nothing unless the law should en
force it, whether the parties have virtue enough
or not to comply. Jt is only when their own
sense of justice will not prompt a compliance,
that the law compels. This is the only object
of the law, its only use.
On the next page, it is asserted that if the
decision of the court be correct, the states "are
in very deed dwarf vassals." If because the
federal constitution .must control the states,
they are vassals, amend tho constitution, dis
solve the union. The states have surrendered
the rightto impair the obligation of contracts,
and cannot now complain that, without it, they
are vassals. Besides, they have, by this sur
render, only denied themselves the power to do
wrong, to do injustice. The people will not
believe that they are vassals, although the gen
tleman from Jefferson (Mr. Rowau) is so
kind as to. tell them so. They have never yet
felt the yoke, nor heard the clanking of the
chain. They know that they are free, and are
determined to continue free. They know too,
that ^heir liberty is constitutional — that it
consists in the integrity and stability of their
constitution, and as long asithey shall revere
that and their God as they should do, they will,
they must be f r ee. They are not vassals, be
cause they have not the power to impair con
tracts; they are only the more secure, the more
ftef. In the next page tho author asks, "can the
armor worm conquer Kentucky?" To this it
is only necessary to respond by retorting an
other question! Can the little spark which,
by consuming thoproperty of a citizen, involves
him in inextricable ruin, conquer the sovei'-
eign power of Kentucky? Can the legislature
restore the unfortunate victim by taking from
his neighbors a portion of their superfluous
property and giving it to him? If they can
not thus relieve him the author of the pream
ble -rfould, according to his argument, infer
that they are not sovereign. They cannot do
it, and are, notwithstanding, as sovtircigii as it
is proper that they should be.

But, said he, on the same page there is a
threat in disguise. The author, in speaking
of what may be the consequences of the de
cision of the court, makes this quotation from
the Holy Bible: "And David therefore depart
ed thence, aud escaped to the cave of AduUam,
and every one that was in distress, and every
one that was in debt, iind every one that was
discontented, gathered themselves unto him,
and he became their captain over them."
If there be a David here who wishes to hoist
the standard of rebellion, round which may
flock the desperate and discontented, let him
be told that he is a traitor and not forget the
traitor's fate. He who thinks that the people
of Kentucky are prepared for sedition and rev
olution, will find himself, after experiment, as
much mistaken as Aaron Burr was. But if
there be a David in this House who wishes to
retire with his followers to the cave, let him
go; it will close on him and hide him from the
light of virtue and patriotism forever. His
name may thus acquire immortality, but it
will be the immortality of infamy, such as that
of jErostratus, who burnt the temple of Ephe-
sus. On the next page, the author complains that,
if the legislature cannot pass retrospective
laws to operate on contracts made before their
passage, they cannot administer relief until af
ter it shall have become unnecessary. And this
is the reason why the convention only pro
hibited laws impairing the obligation of con
tracts already made, because, as there would
be no pressing motive influencing legislatures.
to pass prospective indulgence laws, it was on
ly necessary to prohibit that which they might
have strong temptation to indulge in — retro
spective legislation. The obligation of a con
tract cannot be impaired hy a law in force-
when the contract is made, forit is the law in
force at the time which alone constitutes the
legal obligation.
In page 16, the author complains that the
third judge invokes to his aid, in construing the
contested clause in the constitution,, "the
ephemeral effusions of the revolutionary period
ot the American History." 0 f all the objec
tions which the most fertile imagination, or the '
most fastidious criticism, oi' the most malig
nant envy, could have conjured up against the
reasoning of the court, a man in his sober
senses never could have conjectured that a re-
curi'ence to the history of the events which im*^
mediately preceded the adoption of the federal
constitution, and which alone induced tho-
adoption of the clause in relation to the obliga
tion of contracts, could be deemed by any one
in quest of trUth, to be improper or useless.
When it is important to ascertain the import of
any clause, what is a more sure mode of doing.
it than to recur to the causes which prompted
it, and the objects of those who penned it? But
the author is provoked with one of the judges,
for adverting to these authentic sources for con
firmation of his opinion, because thoy are au
thentic and decisive of the controversy. It
would have been much better for him to ha-ve
examined this history and endeavored to avoid

SPEECH OF MR. K0BF.RTS05.

its illustrfttions. His not having done so is
avidence that he could not, and that, there
fore, the conclusions drawn by the court are
jus((. But a.? he had already spoken in the
proper place on this subject, he 'would not, said
ho, say morenow; he had only referred to itto
show the desperation to which the author of
¦the printed book mu-st be driven, when he at
tempts to make the use of it Vfhich he does.
But a StiU more striking destitution of re
source is displayed by the author on the same
page. He here quotes the 13th and 14th sec-
lions of the 10th article of the Kentucky con
stitution, which declare "that courts shall be
open, and every person for an injury done him
in his lands, goods, ifcc, shall have remedy by
due course of law, aud right and justice admin
istered without sale, denial, or delay," and
"thift no power of suspending laws shall be ex
ercised, except by the legislature or its author
ity," and then says that the "judges have not
only repealed the laws of their state, but they
liATe repealed thc 14tli article last above
quoted, of the constitution of their state."
What process of reasoning has conducted the
author to this conclusion, it would be ditScult
to know. Does he suppose that the legislature
of Kentucky can suspend theoperation of any
law, in defiance of the federal constitution, or
even of the constitution of Kentucky? Does he
suppose that the state constitution repeals the
federal? He says that Kentucky Was received
into the Union with this clause in her constitu
tion. True; but those who adopted her sup
posed, as every honest man in his senses now
believes, that the legislature would only have
power to suspend such laws, as they Were not
prohibited by the federal constitution and that
¦of Kentucky from suspending. If tho legisla
ture pass a law which vests ,private rights,
they cannot suspend or repeal it so as to sus
pend or divest the rights. The only meaning
of the clause is, that there shall be no power
to suspend laws, except by the legislature. It
was not intended that the legislature should
suspend any law, but only that such as could
be constitutionally suspended, cOuld only be
suspended by the legislature. No po-n'er of
repealing laws can be exercised except by the
legislature. But the legislature cannot repeal
laws, so as to divest vested rights. It is only
necessary to look at all the provisions of the con
stitution to ascertain the extent of the suspOnd-
ing power, if indeed any doubt can exist on the
subject. The legislature alone can suspend
Iaws;'butthe federal constitution declares that
they shall not impair the obligation of con
tracts. Place the two provisions in juxtaposi
tion, and the difficulty, if any, exist, vanishes.
The grant of power Vould then read thus: —
"No powerof suspending laws shall be exer
cised, except by thc legislature or its authori
ty." — "But the legi.slature shall not impair tho
Obligation of contracts." Whilst there is a
power to suspend la'>vs, it is with the qualifica
tion that ill its exorcise tho obligation of con-
.tracts .shall noo bo impaired; and if bvsu.spend-
ing a particular law, the obligation be im-
paind— the suspension is unconfiit'.itional.

Whetlier the legislature have powerlo suspend
any particular law, is a question always to<be
determined by examining the entire federal and
state constitutions; and if the suspension be
contrary to any provision in either, it is unau
thorized. Why the suspending .power was'il-
ludedloin the preamble, it remains for some
one of more thkn common .-icnmen to discover.
The court iu their decision, have not repealed
any law, as has beeu already shown, and it is
equally, and if possible more certain, that
they have not repealed or disregarded any con
stitutional provision or principle. If -the leg
islature have the power to suspend all law, it
would be difficult to perceive the efficacy or
object of many wise and important provisions
in the federal and state constitutions.
On the next page the author gravely asks
this question: "How happened it that the, en
lightened state of Virginia has been violating
the obligation of contracts since the year 1748,
and that none of her statesmen or judges had
the acumen to discover it?" Before this ques
tion was propounded, the (author ought not to
have forgotten that the federal coustitution did
not go into effect until the 4th day of March,
1789; and that before that era there was no
constitutional prohibition of the passage of
lawo impairing obligations, and that to pre
vent such legislation in future -n'as the only ob
ject of the clause in the federal constitution
prohibiting it. The practice of Virginia, then,
before 1789, proves nothing; apd no evidence
has been produced of her since passing retro
spective laws extending replevies. If she ev
er did pass such since, they were soon repealed,
and a question was never submitted to her
courts on their constitutionality. If it could
be shown that such a law had been passed,
and decided to be valid by the courts, the
cafee would present some shadow of argument;
but until this be shown, there is nothing even
plausible in the idea suggested and intended
lo be supported by the interrogatory.
In page. 19, tlie author urges an argument
more futile than any which have been noticed.
He here seems to think, that if the two years'
replevin act be void in its operation on con
tracts, made before its passage, there would be
no replevin, because that act repeals all other
replevin acts! Has he forgotten that if tho
two years' replevin act be void, it does not re
peal the former acts? It Would be difficult to
suppose that a nonentity could destroy au en
tity. If tho two years' act be void as to all
contracts made before its passage, it results
that thc 1,1 w which is intended to bo repealed
by it is still in force, so far as those contracts
are concerned.
On the same page the author expresses the
opinion, that if an extension of replevin be
unconstitutional and injurious lo the creditor,
an abridgment of it Would be equally so to the
debtor. It is not iieeessary to discuss this
point. But it may not be improper lo observe,
that if the con.stitutiou had beeu silent on the
subject, thc state legislatures would yet have
the power which they so much abused when
they had it, of impairing the obligatixm of con-

on THE COURT OP APKJALS.

Iracte. The constitution eply withdraws tho
power to ifHpair, it does not deny all other
Sower, to make stronger and more binding,
;c„ and there was no necessity to extend the
prohibition further than the convention did;
for there wa? no danger of a^y other legisla
tion in relation to contracts, tliau that which
is prohibited.
In the next pago it is urged that the legisla
ture may, by a re-(jrganization of the conits,
postpone consequentially the enforcoipent of,
contracts; and thiat therefore they can do it di
rectly. If the legislature make a convenient
and reasonable change in the coprts, for the
-purpose of improving them, the abject l)eing
iegitimate, the act is constitutional, because it
is expressly authorized \)y the constitution.
But a total occlusion of the courts, or postpone
ment of their sessions, for the purpose of delay,
would be an abuse of powerr-a perversion of it
to an end interdicted oy the constitution — and
would therefore be unconstitutional., A per
version of delegated power to a purpose for
which it was not only not intended, but which
is expre.ssly prohibited, is as unconstitutional
and void as if the act were done without au
thority. If the legislature cannot directly
postpone the remedy, or suspend it so far as
previous contracts are affected, they cannot do
it Indirectly. Congress have power to declare
¦war — death may be one of its consequences —
yet Congress would not have the power to or
der tho death of the people by a direct law for
that purposo. So the legislature have the
power to regulate the courts; delay may be one
of the consequences of exercising this power:
tut the legislature have not therefore the right
to legislate for the purpose of delay, or to pro
duce it directly. It would be very absurd to
aappose that because an accidental inconven
ience may result from the honest exrecisjC of a
general power, therefore it would be lawful to
effect the same consequence directly. A has
the rightto clear his own land; if, in the hon
est and faithful exercise of this right, a tree
accidentally fall on B and kill him, A is inno
cent. But if the tree had been wantonly felled
for the purpose of killing B, A would have
been guilty of murder. In the one case he
would be innocent, because the killing of B
¦was an accidental consequence of A's exercis
ing his right to fell his timber; in tho other case
he 'Would be guilty, because he perverted his
general right to cut down trees to an illegal
purpose. These familiar cases are sufficient to
illustrate the argument. It will not endure
scrutiny. The remainder of the book under review con
sisted principally of references to the decision
of the Court of Appeals. He would not again
notice these, he said, because he had before
done it. He would therefore leave tbe book,
after what he had said of it, to its fate. He
had examined it freely, but he thought candid
ly and fairly. It was now public property —
tie state had paid for it — and every citizen
had a right to think and speak without reserve
<jf its demerits as Tvell as merits. He had done
eo; and felt sure that he had been only prorapt-
10

ed by a sense of duty to his country, and to the
cause of truth and the constitution. Ho hoped
therefore that any thing which he had said
would not wound the sensibilities of its author,
or of any one who may co-operate with him!
Each is entitled to his own opinion/ ^nd is re
sponsible only to his conscience and his con
stituents for its exercise; and it is the duty of
all, so to act, as not only to deserve the appro
bation of the people, but to ensure the peace of
sound conscience.
He would, lie said, now, in a very fev
words, answer an argument he had heard in
conversation. It is not to bo found in the
book. It is top fallacious even for a place
there. It is this: If a man make a contract in
Virginia under a three months' replevin law,
and after'wards come to Kentucky where the
replevin is two ye^rs, would ho not have e
right to replevy two years, and would that im-
pairthe obligation of the contract?. He would
certaibly have a right to replevy two years, and
that would as certainly not impair the obliga
tion. And the reason is obvious; the legisla
ture of Kentucky can only legislate over the
citizens and soil of the statie; and, in doing so,
do not invade . the rights of others; and when
a citizen of Virginia comes to Kentucky, he
must submit to the laws of Kentucky. In thc
case put, the contract is not impaired by tho
law of Kentucky. If it be impaired at all, it
is by the obligor, in withdrawing himself from
the operation of the laws of Virginia. The
lex foci, governs tho construction of the con
tracts — the lex fori its enforcement. The legis-
turc of Kentucky can only legislate over con
tracts made in Kentucky, and they cannot im
pair the obligation of those contracts. They
cannot legislate over contracts made in Vir
ginia, and therefore do not, by any legislation,
impair their obligation.
He had endeavored, he said, to sustain the
decision of the court, hy such arguments as
had occurred to him; andhehad taken the lib
erty of fortifying those arguments, by the print
ed preamble to tho resolutions, which he
thought he had done. He had perhaps mani
fested too much zeal. If he had, he hoped to
be excused; it was an honest zeal in the cause
of the constitution, and of the best interests of
the people and their posterity. Jf the resoln-
tions be adopted, a precedent will be estab
lished 'which will unhinge thc constitution,
and render the legislature supreme and above
the constitution by which they are created.
The country maybe thrown into commotion,
and the public mind into great effervescence,
but no relief will be adittinistered. It had
been stated that the principles which he advo
cated are not republican. This had no ter
rors for him. He cared not for party names or
denunciations. His only aim and wish was
to do right, and it would be very difficult to
determine what some men meant by republi
canism. If the constitution is republican — if
justice is republican, the principles 'which he
had endeavored to defend arc republican. If
to pin one's faith on another man s sleeve; if to
act with the majority, right or wrong. Vicar of

SPJEKCTH OF MB. ROBEKTSOK.

Bray like; if to sacrifice conscience and judg
ment at the shrine of popularity;' if to flatter
the people and incite them and array them in
to parties, to nwiunt to power and influence,
whilst their real interests are disregarded; if
to play the mock patriot and proscribe freedom
of opinion, of conscience and of speech; if
these constitute a republican, he disavowed re
publicanism emphatically and indignantly.
But if to pursue Uie unbiassed dictates of con
science and judgment — if to think for one's
self in defiance of the opinions of others — if to
love the constitution and respect the people —
if to do right, however unpopular, and abjure
error, however popular — ^if to express opinion
candidly, independently, and fearlessly — ^if to
revere one's country, and feel solicitude for it«
permanent happiness and honor — if to love
equality and despise demagogueism ; if these
are badges of an orthodox republican, he would,
without egotism, claim the honor of being an
undeviatiug , republican, in the most sterling
import of the appellation. His republicanism
was not in professions', but in practice — not in
words, but in deeds. It recognized thc sov-
«reignty of tho people, but required their su
premacy to be displayed conformably to their
political cxiropact. He believed that in its in

violability consisted not only the sovereignty
of the people, but their peace, security, and
happiness, tet them alone, they will do right
Do not entangle them in an unnatural and un
profitable contest among themselves; _do nat
force them to deny the authority of their con
stitution, and perhaps the power of the general
government Preserve the constituiion and the honor of
Kentucky. This can only be done by rejecting
the resolutions. Let me once more, said h&
beseech you to appeal to your judgments, and
let them cohtrpl your votes. Befrain' from a&
act at which your posterity may blush; trans
mit to them, asyour best legacy, your constitn-
tion unimpaired, and consecrated by your ven
eration; this will ensure its longevity and their
happiness. '
Every other state in the Union is now tran
quil and prosperous. Why is it that Ken
tucky, the Delta of America, should be dis
tracted and harasBcdl It is her legislation, her
partly and petty strifes and struggles. Bury
them all— surrender them at the altar of ^our
country's good. Return to a stable and consti
tutional poli(:y, and Kentucky will be regenir-
ated. and her people once more rallied under lie
standard of Justice and Vu Constitution.

PRELECTION.

On the 20th Decetuber, 1824, another long and fulminating pream
ble and resolutions for the removal of the Appellate Judges by address
were adopted by the House of Representatives by the fpllotving vote:
Yeas— Mr. Speaker, Messrs. Booker. H. O. Brown, Buckner, Buford,
Caldwell, Carter, Chenowith, Clarkson, Coleman, Ccsby, Dallam, A. h!
Davis, S. Daviess, Forreat, Fulton, Galloway, Garth, J. G. Hardin, M.

.  , . Rob
ertson, Itodman, Roundtrec, Rowan, Samuel, Shortridge, Slaek, Spal
ding, Stephens, Stone, Summers, ,J. Taylor, Thomas, Triplett, Wade,
Watkins, Wilcoxen, W. C. WilUaras, W. Wilaon and Wingate— 61.
Nays— Messrs. Bates, Breck, Brents. G. 1. Brown, Chapeze, Cox, Crit
tenden, Cunningham, Evans, Farmer. Ford, GibSon, Goggin, Gordon,
Green.Gresham, B, Hardin, Kennedy, J, M. M'Connell, Miller, Morrii,
New, Oldham, W. Patterson, H. C. Payne, W. C. Payne, G. Robfertson,
Shepherd, Simpson, Sterrett, R. Taylor, Thnlston, True, Turner. Wick
liffe, L. Wifliams, WUlis, T. P. Wilson and Woods— 39.
Two-thirds, as required by the constitution, not concurring, the Judges
were not removed. But the Senate, anticipating that result, had, on the
9th day of December, 1824, passed a bill to abolish the Court of Appeals,
and organize a new court, under pretence of "reorganizing" the court. —
The Senate's vote on that bill was as follows:
Those who voted in the affirmative, are, Messrs. C. H. Allen, J. Alien,
Ballinger, Barrett, Beauchamp^ Daniel, Dawson, Denny, Dudley, Ew
ing, Forsythe, Hughes, Lyon, Maocoun, Mayo, P. N. O'Bannon, W. B.
O'Bannon, Selby, Sniith, T. Ward, Worthingtbn and Yancey.
Those who voted iri the negative, are, Messrs. C. Allen, Beaty, Bow
man, Carneal, Crutcher, Davidson, Faulkner, Flournoy, Hickman, How
ard, Lockett, Muldrow, Stephens, J. Ward, White and Wickliffe.
And th^ House concurred in that bill on the 23d of the same month, at
Midnight, in great tumvlt, by the following vote:
Yeas— Mr. Speaker, Messrs. Booker, H. 0» Brown, Buckner, Buford,
Caldwell, Carter, Chenowith, Clarkson, Coleman, Dallam, A. H. Davis,
S. Daviess, Forrest, Fulton, Garth, J. G. Hardin, Hodge, Holt, Hunter,
Joyes, Litton, Miarksberry, Mason, Maupin, Mayo, M'Brayer, M'Con
nell, Middleton, Morehead, Mosely, Mullens, Napier, Porter, Prince,
Riddle, W. Robertson, Rodman, Roundtree, Rowan, Samuel, Shortridge,
Slack, Spalding, Stephens, Stone, Summers, J. Taylor, Thomas, Wade,
Wilcoxen, W. C. Williams, W. Wilson and Wingate — »4.
Nays — ^Messrs. Bates, Breck, Brents, G. L Brown, Chapeze, Cosby,
Cox, Crittenden, Cunningham, llvans. Farmer, Ford, Gibson, Goggin,
Gordon, Green, Gresham, B. Hardin, M. Hardin, Kennedy, J. M. M'Con
nell, Miller, Morris, New, Oldham, J. Patterson, W. Patterson, H. U.
Payne, W. C. Payne, G. Robertson, Shepherd, Simpson, Sterett, R. Tay
lor, Tbruston, Triplett, True, Turnfer, Watkins, Wickliffe, L. Williams,
Willis, T. P. Wilson and Woods-^S.
The arguments against the bill were elaborate and exceedingly able.
And, in^at debate, Mr. Robertson delivered the subjoined speech.

SPEECH OF MR. ROBERTSON.
On the Bill ta Re-Organize the Court ef Appeals.
[Delivered in tlie House of Uppresontatives of Kentucky, Dec. 23d, 1824.]

Mr. Robertson said, he did not expect to be
able to add many rays to that flood of light
which had already been poured on this mo
mentous subject, by his friends who had pre
ceded him in the argument. ' That light had
not been extinguished; It is inextinguishable;
it is the light of reason, and of truth. The
unconstitutionality of the bill under consider
ation had been portrayed iu the brightness of
sunshine; yet, when he saw the constitution of
his country about to be violated — when he saw
the main pillar in the temple trembling, and
tottering to its fall— when he saw the altar of
justice about to be profaned, silence would be
treason to his own conscience, and to the most
sacred principles of free government. Ho
should speak plainly, and with that freedom
which the magnituae of the subject required,
and which would become a freeman, tho Mag
na Charta of whoso liberty is endangered.
And he only asked that attention to his argu
ment, which the duty of every member to his
oath and his constitution, requires him to give
to all that can be said; and if he should fail to
convince, or even bring to doubt a solitary
mind, he should at least stay for a few mo
ments tho blow tliat is aimed at the constitu
tion. I had thought, said Mr. Robertson, thatflie
thick darkness which had overhung the politi
cal horizon, was beginning to retire before thc
light of truth, and that I could see the dawn
ing of a brighter and happier day for Ken
tucky. But never did she see so dark and por
tentous a day as this: this is her most eventful
crisis. She is about to determine, not wheth
er she will put down her judges, but that con
stitution, which is now under trial. In all tho
ragings of the political storm, although the
flood of party had threatened to deluge much
of the social and moral region, and leave scarce
any monument behind its desolating career,
yet i. had hoped there was one consecrated
spot on which tlio political ark might rest in
safety; that spot is the sanctuary of justice.
But even that is about to be overwhelmed; aud
whenever it shall be, the patriot may despair of
the commonwealth. But I will not, said ho,
yet despond; the restorative is with the peo
ple; they will correct our aberrations, and
prove that they are determined to defend their
constitution, oven against the attacks of those
who assail it in the abused name of liberty.
Whatever may bo the decision pf this: house
Ol this bill, I shall not despair of the ultimate

[ triumph of reason and j ustice over passion and
I violence. I shall have confidence' in the intel-
I ligence and virtue of thepeople. They are the
I safest depository of our rights. They may be
' deceived for a while by the ambitious and de
signing, but after sufficient deliberation ^thft.
delusion will vanish, their fervor will subside
into the calm of that right reason which they
possess, and which seldom, if ever, errs. Be^
, tore that august tribunal this question must
¦ come; and it requires not the spirit of prophecj
I to predict what will be their verdict; they yr'ffi
j pronounce their judgment irreversibly, and ia
¦ tones of thunder, unless I am a total stranger
to their character. They will understand this-
; bill; they will consider it as the desperate ei-
i pedient of pai-ty and individual aggrandize^
I ment. They do not feel the influence of any
I of tho little, personal or sordid motives whicL
j may sometimes animate the aspiring. Thay-
I havo no petty ambition to gratify. They d<>
^not envy their judges, nor covet their officei.
All they desire is good, equal laws, steadily,
^ wisely, and honestly administered. They are-
; a magnanimous people, an intelligent people;
aud although some of them may be somewhat
depraved, by the demoralization of unjust leg-
; islation, and the relaxation of some of the most
consecrated ties, social and politicalj they are-
: yet a virtuous and a just people. They de
spise whatever is stained with dishonor — thay
arc the same people who assisted in achieving^
the civic victory in '98; when some of thos*
,' who are now in the van of the multitude, cru-
1 Bading against the judiciary, were in the ene-
I my's ranks — they are tho same people 'who de- '
! nounced the alien and sedition acts; whilst
some of those who now swell thechorus against
tho judges advocated them— 41iey are the same
people who poured out some of their richest
blood at Raisin, and conquered at Orleans;
whilst many who arc now patent democrate,
were railing at their firesides against the justice
of the war. Such a people will never sanction
legislative stealth. They will toll you, sir, that
if tho Judges deserve to be removed from office,
they (the people) have prescribed to you the
only modes in which they intend that you shall
act; that to attempt to effect the end in any
other mode, is treachery to them, and worse
than treachery to ourselves. . They will tell
Us, that if the judges must be removed, it
should be done openly, fairly and directly, not
insidiously, indirectly or sueakingly; that it
must bo done in such amanner as wiu be com-

BILL TO RE-ORQANIZE COURT OF APPEALS.

77

patible with the character of a brave, frank,
Bnd lofty people; in short, as Kentuckians
•hould do it. If we cannot break the judges,
we are not to break the constitution. They did

forgetthe instability of human power, the vicis
situdes of capricious fortune; let them not for
get that the groatcst men, the Csesars of their
day, have fallan; and that the proudest em-

not send us here to take offices from one set of I pires, and most splendid republics, even

men, only to give them to another, nor to strug
gle for victory over each other, but to endeavor
to harmonize in trying and settling a great
principle, whether the judiciary is a co-ordi
nate branch of the government. They expect
us to try the judges by the constitution, and
either acquit them or condemn them, accord
ing to its pfinaiples.
There will be no peace until this question is
settled fairly. You will only multiply difficul
ties, and increase th« inflammation of the pub
lic mind, by passing this bill. It settles no
Srinoiple. It establishes nothing, except that
le judges cannot be constitutionally removed,
and that therefore they shall be forcibly re
moved, to give place to some hungry expect
ants, wlio are unable to live without some nour
ishment from the treasury paps — the spring of
whose patriotism is money — the object of
whoseoutcry against the judges is to get their'
places. If Kentucky is prepared to sanction
such a prostitution ofher constitution, her pub
lic virtue is gone, and she is ready to receive
the yoke of Some modern Pisistrates, CseSar or
Cromwell. Whenever she shall be so far lost
to a sense of justice and honor, she is prepared
to surrender her altars and her gpds, and is
praetlcally just as free as the Romans under
Augustus, Tiberius or Caligula.
If we reject this bill, we shall once more
meet together as brothers, united in belialf of
the great interests of our state, our civil and
criminal code, internal improvement, and the
difFusii-n of knowledge by education. But if
we pass it, we shall raise a storm that we may
not be able to withstand; like a tornado, it niay
tear up every thing by the roots. You may
force your judges from the bench by violence,
because they are faithful to the constitution,
and will not submit tobe voluntary victims of
its 'violation; but, sir, their cause will not, as
that of the great Dewitt, go down with them;
it is the cause of justice and truth — ^their coun
try's cause — and will prevail; and it is consola-^
tory to know, that iu more sober times, justice
will be done. However much they may be slan
dered, or persecuted, they may well sky to
ea6h other as Latimer did to Ridley, when they
were burning at the stake for the firmness of
their religious faith: "Be of good courage,
Ridley, our persecutors will be disappointed,
for our sufferings will lead men to inquire into
that cause for which we suffer; and the fire
which consumes us will light up such a flame
as I trust in God will never be extinguished."
To the bar of enlightened public opinion they
will appeal, and not in vain. At the same
bar, the actors in this drama must sooner or
later be tried. But we shall have to appear
befdre still higher tribunals— the bar of con
science, and , the bar of heaven— Vfhere eijUal
«nd exact justice will be done to the motives
and conduct of all.

Athens, Carthage and Rome, have tumbled
into ruins at her magic touch; above all, let
not a few forget, that Marius in exile sat on the
ruins of Carthage ; and when these things are
recollected, let us be humble in our hopes,
and temperate in our acts. In passing this
bill, gentlemen may triumph over the judges;
but it wiU be a poor triumph; it will be a tri
umph over virtue — over the most consecrated
principles — over the constitution. It will be
the triumph of force over weakness — a tri
umph over the people— over ourselves and our
children; a triumph over the feelings and
rights of old men, grown grey in the honest
service of their country — and over the feelings
of their anxious wives and children. Nero
had such a triumph; he wantoned on the harp
on the housetops, when by his own incendiary
hand Rome was wrapped in flames. The-
cries of the murdered Christians were music
to his ears. Let us never enjoy such a tri
umph as this — such a victory would be our
worst defeat. Let us pause before we cross tho
Rubicon. Let us appeal solemnly to our con
sciences, before we thuS sacrilegiously invade
the temple of our liberties — before we profane
its altar of justice.. Wo have Sampson's
strength: we can shake — ^we can even pull
down the Doric pillar of the political edifice; .
but let us be careful, lest we are crushed in its
ruins. Mr. Robertson said, that in the argument
which he should submit to the house, he should
eiideavor to maintain two propositions — 1st.
That if it is intended by this bill to legislate
the judges from office, the end is unconstitu
tional; and 2nd, that it is unjust and impolitic.
But before he proceeded with the argument,
he would answer some preliminary objections
to the judges, which had been urged against
thera, and which, although they could not be
made to apply justly to the main object, he
deemed it proper to notice and get rid of. It
had been urged as an objection to the judges,
that they had not manifested sufficient respect
to public sentiment, by holding their offices,
when they could not doubt that a majority of
the people had expressed dissatisfaction with
their decision in the case of Blair vs. Wil
liams. He said, that he would deny that
there was any satisfactory evidence tiat a ma
jority of the people were or are dissatisfiea
with that decision. Great exertions had been
made to excite the prejudices of the people
against the judges; and nothing which inge
nuity could contrive, and falsehood utter,
was omitted to be published against the court;
motives and doctrines had been imputed to
them, which those who were most active in
their propagation knew were false; and a very
dexterous and unjust use wasmade of epithets
to rouse popular indigiiation, and to misdirect
the honest zeal of unsuspecting and patri-

I«t*not those who are called judge breakers 'otic men. Those who defended the consU-

n

SPEECH OF MR. K0BERT80K, ON THB

tetion were denounced as "aristocrats — "court
party" — "the rich and well bom" — "Shy-
locks" — and "silver heels." Tliese, and many
other epithets as decent, were very liberally
wplied to them. The judges wore called.
"kings" — "usurpers" — "tyrants" — "the peo
ple's masters," Ac. &e. And the people in
many counties were told that iU the decision
of what is called the "judge question," they
'Would determine whether they were freemen
or slaves.. In some counties, "liberty or slave
ry" was the watchword Of party at the polls.
The people were told, that the judges had
denied to the legislature the right to make
laws, and had attempted to arrogate to them
selves the exclusive prerogative of wielding
the whole sovereign power. They were told
thatthe judges had decided, that there is no
difference between right and remedy, and that
the legislature cannot in any case change, or
in any degree or for any purpose alter, or mod
ify the remedy for the enforcement of antece
dent contracts; and that this decision pros
trated state rights, and struck at the very root
of civil libert } . 'These, and many other fabric
cations, were industriously circulated, to de
ceive and inflame; and many honest men be
lieved all to be true, and consequently were ar
rayed against the court. But, undeceive the
people: tell them honestly what the .judges
nave done; what it was their rightaud duty to,
do; and who they are, aud who are some of
their prosecutors, and there can be no doubt
that a majority of the honest yeomanry, who
are called "judge breakers," will desert tho
cause into which they have been seduced, and
rally round the standard of their constitution,
and sustain and applaud their judges, who are
persecuted, slandered and proBcribed, because
they are honest, firm and virtuous, and have
dared to defend the poor man's rights in defi-
jince of the threats of the powerful. Tell them
tiiat the court had the right to decido on the
constitutionality of the acts of the legislatTire,
and that they are sworn to do so; and then
let them know that all the court has done, was
to decide that men must pay their honest
debts, according to law and to contract, and
that any attempt by the legislature, to prevent
it, is prohibited by the constitution; and you
will then be told, by an honegt and high-mind
ed community, thatthe judges deserve appro
bation; and that those who denounced them
for having done their duty, are the enemies of
the people. He said that he believed that a
m^ority of tho people who are opposed to the
Judges, are opposed tothem, not for tho princi-
Slee which they had decided, but because they
0 not know that they have the right to pro
nounce a legislative act unconstitutional. Let
this legislature tell them, as it ought to do; that
the courts have this right, and that it is their
official duty to exercise it, when properly
called on ; and they will tell you, that you sur
render the contest, and that they havo been
grossly deceived. And although none of those
¦who here denounce tho Court of Appeals can
deny, that in giving tho decision so much com-
{iluned of, there hag been no usurpation of

power, yet artifices were ased to conceal this
important truth from the people. Ho said,
that he moreover did not doubt, that amajori-.
ty of those who are called "judge breakers,"
had never read the opinion of the court; and
that nineteen-twenlioths of them had not
carefully examined it. How Was it possible,
then, for them to know whether it is corrector
not? Is it fair then to argue that a majority
of the people, understanding the subjeqt.are
deliberately of the opinion, that the court has
given an erroneous opinion, ahd that it has
been guilty of usurpation.
ThofaC. that a majority of .the people are
opposed to the court is denied, it is very
doubtful, whether the aggregate majorities of
the two partiies in this house, at tho polls in
their respective counties, at the last etection,
will not show that the "judge breaking" con-
stituentB, are tho minority of the state; and
hence those who contend for the majority
against the court, evade this calculation, and
urge triumphaiitly the election of Gov. Desha,
as a conclusive fact. One circumstance will
show how delusory this calculation is: — Our
present,chief executive has been electioneering
tor the office which he now holds, many years
— he hsis ridden over the whole state, and htt9
become extensively acquainted with the peo
ple; and in some of the most decidedly anti-re
lief counties in the state, he has obtained, de
cided majorities. He was voted for hy the
judge breakers and judge sustainers — ^he wa&
so fortunate as to be claimed by both parties,
in some counties. And sir, said Mr. Robert
son, I do know, and can prove, that in more
counties, than one, he declared publicly, that he
was "not in favor of removing a judge from
office for an honest opinion" — that he had "ever
been opposed 'to the relief system" — and be
lieved "it, or at least some paits of it, to be
unconstitutional!" With these facts, let gen
tlemen still insist, if they will venture to do it,
that the governor's election proves any thing
on this subject.
But if it be established, that the majority is
against the judges, they ought not to have re
signed; they would have been guilty of a pu-i
sillanimous desertion of their posts, and a cul
pable dereliction of their duty to the constitu^
tion, to have retired. The constitution has
wisely required the concurrence of xwo-TEiana,
to remove tho judges from office. If a bare
majority can, by abuse and throats, effect tho
object, the intention of the constitution is frus
trated, and this wise requisition is virtually
and practically abrogated. And the example
once set, two-thirds would never afterwards
become necessary; but the same end would b«
effected by a simple majority, who would con
trol and subjugate the judiciary, in subservi
ence to their pride or ambition. For the pur
pose of sustaining tho constitution, then, it
was tho duty of thc judges to retain their of
fices, until they should be constitutionally re
moved. And if it bad beeu otherwise proper
for them to resign, they havo beep so much
abused and threatened;, that they could not
have resigned honorably; because thoy would

BILL TO BE-OBGAiriZK THE COURT OF APPEAUL

W

nothave had the meritof having done itvoluu-
tarily. Their resignation would have been
' eonddered an acknowledgment of the errone-
ousncss of their decision, and of their want of
that degree of energy which tha judiciary
should possess aud display. These, aud these
only, are the reasons which influenced their
conduct. They donotdesire their offices; they
would gladly give them up, if they were per
mitted to do so honorably, and . consistently
with their duties to the constitutiou, and the
people's rights.
Tney have, therefore, as thoy should havo
done, "naiie<J the flag to the staff," and deter
mined never to "give up the ship:" and for this
they deserve applause; like the old Roman
senators, when their capitol was attacked by
barbarians, it was their duty to forego all per
sonal considerations, and resolve cither to save
the sanctuary from pollution, or perish on its
altar. It is also objected to tho judges, that they
have pertinaciously adhered to their decision,
in contempt of the will of the majority. He
who makes this objection should not claim
much respect for the strength of his miud, or
the EOundnoss of hie heart. WhatI require a
judge to prostitute his judgment, his cou-
seience, and his oath, at the shrine of popular
ity, andbow; to the nod of the -leader of a dom
inant-party? to change his decision, whilst his
opinion is tho same? Such a judge would be a
curse to society — -a. monster on the bench — the
minister of vengeance, and not of justice — the
puppet of party — ihe mighty ejigino of power
 .and not the weak man's stay, or the poor
man's hope — the supporter of innocence — the
terror of vice. It ia acknowledged that the
Judges of the Court of Appeals are not such
compliant, subservient, tools bf faction: they
are virtuous, firm, honest; and enlightened
men. "This is their crime — "tho head and
front of their offending." They do not, liko
somo of us, change with the fluctuations of ma
jorities. Thoy arc not so felicitous, like some
others, as to bo always on the strong side; their
onlif power is the power of judgment; their on
ly support ia tho ability of their decisions.
"They do not, as oziers, bond at every breeze;
but like tho sturdy oaks of tho forest, they
«tand firm and erect, uhshaken by the storms
of party. Such judges do not suit the ambi
tious and the powerful; but such should be the
people's judges — and such, I am proud to say,
said he, are our judges.
In proceeding to speak of the bill, Mr. Rob
ertson said he had some difficulty in deter
mining its real character; it was a sort of non
deseript; its like had never been seen before.
Bomo of its prominent friends, eventhegcntle-
man who presented it, denied that its object is
to remove tho judges from office. They ad
mit, because they are compelled to admit, that
the only legitimate effect of the bill wilL be to
add four new judges to the bench, making the
I total number seven, instead of three; but say
that they will give the present judges no sala-
y, and this they have no doubt will induce
hem to resign. Whilst other advocates of tho

measure, not so well skilled in the artifices of
legislation, really believe that this bill is to
havo the magic effect of repealing the consti
tution, and by the legerdemain of a bare ma
jority, remove the judges. This discrepancy
only shows how illicit is the real desi^, and
how ridiculous are the subterfuges of those
who are the main promoters of this new
judge breaking expedient; and tends to prove
that those master spirits out of this house, who
have been charged with writing this bill, and
making speeches in their caucus, to prove that
it is constitutional, are endeavoring to dupe
others, and induce them to do that, which they
would not dare to do themselves, if they were
here. If the object to be accomplished by thie
bill bo fair and constitutional, why not dis-

&&

close it? ' If it be to add a fourth judge, we dp
not object to it — but then one clause will effect
that purpose as well as this long bill- If it be
to add four new judges to the court, making it
consist of seven, we do object; because it will
be an unnecessary multiplication of judges,
and an oppressive increase of public expendi
ture. But with all its disguises, it is evident
that the sole object of the bill ia to put one set
of judges out of office, and put another set in
office. This is palpably unconttiiutional-^and
will not, cannot be sanctioned by the people.
If the majority desire to prostrate the judiciary,
they must resort to other and stronger meas
ures. Let them come out boldly, and openly
defy the constitution at once, and appeal to
numerical power-^to physical force — which
has been hinted at more than once, and which
is the "ultimo ratio regis," and tho ultimate and
only argument which can enforce the objects
of this bill. They have waged a long and vio
lent war of wortfa against the judges; and by
their conduct, acknowledged that they could
only remove them from office by a majority of
two-thirds. They have tried them according
lo. the constitution — they have failed — and now
to cover their defeat, as they cannot "break"
the judges, they are endeavoring to "break" the
constitution. Desperate must bo that party,
and dangerous to the liberties of the people,
when they can prcstituto their power to such
unhallowed ends. The party has been stnig-
fling to remove the judges from office; but they
ave now discovered a new expedient, by
which they can remove the office from the
judges! Two things are necessary to the ten
ure of office-^lst. The existence of the office.
2nd. The incumbent appointed to fill it If the
legislature intend to act on tho incumbent, for
actual or imputed misconduct, they are re
quired by the constitution, to proceed either
by impeachment or address — ^to succeed in
either of which, two-thirds are necessary.
These are the only modes by which the judges
can be rsmoved. If the office become unneces
sary or inconvenient, and the public good re
quire its abolition, it may be abolished, (if cre
ated bylaw) not for the purpose of displacing
the incumbent, but only to substitute, in good
faith, a better system. And as the latter is to
be effected bylaw, a bare majority is sufficient.
But although tlie o^'^* may have been created

80

SPEECH OF MR. ROBERTSON, ON THE

or established by law, and therefore can be re
pealed bylaw, yet if the object be to remove
the officer, and not to abolish the office, it is
unconstitutional. The object of this bill is not
to abolish the court of appeals — that is not at
tempted, and could not be done; because it is
established, not by law, but by the constitu
tion. The plain and sole object is, to endeav
or to remove the judges by an act of assembly.
This is constitutionally impossible. The con
stitution declares, that "the judicial power of
this commonwealth shall be vested in one su
preme court, to be styled the court of appeals;
and in such inferior courts as the legislature
may, from time to time, erect and establish."
It also declares, that the judges shall hold their
offices during good behavior, and the continu
ance of their courts. If the court of appeals
is established by the constitution, and must ex
ist as long as that shall exist, the conclusion
is inevitable, that the judges of that court can
not be removed by a legislative act. Their
tenure of office depends only on the contingeur
cy of good behavior; and they can be removed
only for misbehavior. The office can only be
abolished by a convention.
That the office is created by the constitu
tion, and ia not repealable by law, is demon
strable by the constitution itself — and may al
so be shewn by au examination of the author
ities and examples quoted by the advocates of
the bill, in its support. And if I do not (said
he) shew even to those gentlemen, to their ut
ter confusion and clear conviction, that their
own cases prove the unconstitutionality of
legislating judges of the supreme court out of
office, I will surrender the argument.
The government is divided into three dis
tinct departments — the legislative, the execu
tive, and judicial — and its powers are distribu
ted among them. If either depaitment be ta
ken away, the constitution loses its equilibri
um and its vitality; each is created by the con
stitution, and one aa much so as either of the
other two.
Is tho executive department established by
the constitution? The advocates of this bill
admit that it is. Then must not the legislative
and judicial be also established by the same in
strument, and the same authority— the people
in their primordial assembly? The constitu
tion declares that "the executive power shall
be vested in a chief magistrate, to be styled,"
&c. The same constitution declares, "thatthe
judicial power shall be vested in a supreme
court, to De styled," Ac. The language is pre
cisely the same: it must therefore, when used
in the latter, mean the same thing as when
used iu the former clause: it establishes tho ex
ecutive in the former; therefore it establishes
the court of appeals in the latter. The office
of the executive is created by the constitution,
although it is vacant until a governor is elect
ed. So the court of appeals is established by
the constitution, although the judges do not
exist until commissioned. Laws are necessary
in the first case, to provide for the election of
a governor: so in the latter toprescribe the ju
risdiction of the court,, and provide for its or

ganization. But if, by a repeal of thelaws am
thorizing and regulating the election, the .gov
ernor cannot be legislated out of office; by a
fiarity of reason, by a repeal of the act regu-
ating the court, the tenure of the judges' of
fice is not affected: the office cannot be abol
ished, in either case, and the reason is obvi-
ous-^it is because the law does not create tho
office, but only provides the means whereby it
may be filled. The heads of the three, great
departments are as fixed as the constitution. —
In the case of the judges, the constitution pro
vides that-they shall hold, their offices (unless
removed by two-thirds) during the continu
ance of their court, and not during the exist
ence of the law or laws providing for filling
the court with judges; consequently it fol
lows logically and irrefragably, that a repeal
of such a law or laws, cannot have the slight
est effect on the judges; they are, notwith-
ing, still in office, because their court still ex
ists, and cannot be abolished by law. ,
But from the words, "from time to time shall
erect and establish," it has beeu argued, with
as much vehemence as if there Were plausi
bility in the idea, thatthe court of appeals, as
well as the inferior courts, is established by
law. A slight attention to juxtaposition, aud
to grammatical coD.struction, will show the fal
lacy of this argument, independently of the
conclusive considerations already suggested. —
The words, "erect and establish," refer evi
dently to the inferior courts: a transposition
will shew it. "The judicial power shall be
vested in o supreme coui-t-^which the legisla
ture may from time to time erect and estab
lish," would be very nonsensical language.—
The meaning of the clause is, that there shall ,
be a court of appeals; and that in addition,
there may be sucn other courts as the legisla
ture may establish. There never can be an in
stant when there is no court of appeals, the
Constitution living. This is too plain to do-
serve argument
The law does not create tho court of appeals-
Itonly provides means to create the judges of.
that court; and whenever they are commission
ed, like the governor and members of the leg
islature, they are in office under the constitu
tion. Can the court of appeals be abolished? Ev
ery member of the house, and of the communi
ty, will answer, no. Why can it not be abol
ished by law, if established by law? If it
were established by law, the same authority
which created, could destroy it. But it can
not be abolished by act of assembly, because
the constitution declares that there shsdl be a
court of appeals: and therefore it is established
by the constitution. Although all the judges
may die or resign, still there is a court of ap
peals; the office still exists; and when new
judges are commissioned, they are judges of
the same court of appeals, although they are
not ths same men. The legislature, therefore,
cannot abolish the court; they cannot take the
office from the judges: ahd as the only consti
tutional modes of removing tiiem frmn office
are hnpeacbment and address, this bill cannot

TO Rl!-0EGAlfl2E Tttfi eoiJIi>r, Of Al'PteALS.

81

have the effect of removing the judges from
office constitutionally.
But if stKinger or more direct authority can
be necessary to place this subject beyond even
the hesitancy of skepticism, the debates on the
judiciary bill in congress, in 1823, which have
been quoted by the advocates of the bill, to
prove its constitutionality, will furnish appo
site and imposing arguments, to shew thatthe
court of appeals is a constitutional court, and
cannot be abolished or discontinued by legis
lation. The question under discussion in con-
gress, was 'jvhether the inferior courts estab-
shed at the close of Mr.' Adams' administra
tion, could be abolished by a repealing act. —
It was contended by those who denied the
power of congress to abolish the inferior courts,
that the supreme court could not be abolished,
because it was ordained or established by the
constitution; and that the inferior courts, by
analoo;y, when once in existence, became con
stitutional courts, arid could not be abolished.
The argument was able and ingenious; and
the advocates of the bill conceded that the su
preme court coidd not be abolished by law;
but th«y denied that the analogy which had
been contended for existed between the origin
of the supreme and inferior courts by law: and
that, as the same power that enacted the crea
tive law could repeal it, the inferior courts
couldbe abolished:and they 'were abolished.
Every member, on each side, admitted that the
supreme court could not be abolished by law:
and the volume of debates which I hold in
my hand, (said he) 'will prove it, if denied. —
The authority of Mr. Jefferson and~the repub
licans of 1802 is not m support of this bill, but
most undeniably and conclusively against it.
For let it not be forgotten, that the clause of the
federal constitution, providing for a supreme
court and such inferior courts as may be es
tablished, is in the same language as that
which has been quoted as.to our courts, from
our state coustitution: and therefore, if the su
preme court could not be abolished, or "leor-
ganized," so as to get rid of the judges, because
that court was established by the constitution,
for the very satne reason, the court'of appeals
cannot be abolished, or so "teorganized," as to
remove the judges. It was not to have been
expected that gentlemen, who advocate this
bin, would be so bold as to call td their aid,
Mr. Jefferson and the republican party of 1802;
when their authority is so explicit and unani
mous against the power tp abolish courts estab
lished hy the constitution, as are the supreme
court and the court of appeals, What would
be thought of a membia: of congress, who, for
the purpose of removing the judges of tbe su
preme court, should introduce a bill iu, con
gress, to reorganixe the supreme court ? The act
would stultify him. The law organizing the
court could be repealed; but the effect would
not be a removal of the judges; the supreme
court would still exist, and the judges would
still be judges.
The Kentucky act of '96, reorganizing or re
establishing the court of appeals, did not turn
the judges out of office: such an effect is not

permitted by the constitution; aiidany attempt
to produce it is therefore unconstitutional;
If you pass your bill, have you not still a
court of appeals? Is it not the sdme court of
appeals as that which has existed ever
since the adoptiou of the constii^tipn? If it
still be the court of appeals— if the court still
continue, the judges are still in, office; , be
cause they hold their offices during the con
tinuance of their court. It is admitted by
Some of those who will .vote for the bill, that
the judges will be in office, if tha bill pass;
but they say that they sh,ali serve' without sal
ary. They intend to have four judges well
paid, and three, who shall have nothing for
their services . The constitution provides that
the judges shall have adequate salaries. Can
any one, on his oath, say that nothing is an
adequate salary? This subterfuge is too glar
ing an abuse of discretion to escape public
reprehension. If the legislature had the power to abolish
the court, the bill does not do it; because a
court is "organized" in the same bill; and the
existence of the court is not suspended for one
moment. An additional consideration to shew that
the bill can have no tendency to abolish the
court would appear by a change of the title,
so as to correspond with such object. Let it
read, "A bill to abolish the court of appeals,"
and who is there so bold, as not to admit that
it would be nugatory? And yet that should
be its title; for such is its true character, and
such its design.
Biit it is contended that the court of appeals
has never been established! This is one of
the arguments used by the caucus orators; and
shows how desperate is the cause, which must
be sustained, by such a ridiculous resource. —
I would be glad (said he) that those speakers
had beeu invited to make their speeches at the
bar of the house, that they might be answered,
and exposed: they would not venture to make
such an argument here, and would not dare to
vote for -this bill, if they were entitled to vote.
The argument has been answered in the en-
dea.vor to shew that the court has been estab^
lished by the coustitutiou; and Tfiaj be far
ther answered by a plain question: Has Ken
tucky never had a court of Appeals?
It has beeu asked emphatically, whether
circuit, and other inferior courts, cannot be
abrogated, by law? The answer is, yes, certain
ly, because they are .established by law. But
the legislature has not the right to abolish and
re-create, simultaneously, the circuit courts. ,If
those courts become inconvenient — ^to improve
the system by substituting other courts, or re
modeling them— the legislature may pass a law
abolishing or modifying them: but if the ob
ject be to get clear of the judges aud not the
courts, it is unauthorized, and is an abuse of
Eower. And here the debates on the judiciary
ill in congress, are direct and formidable au
thority. Mr. Randolph, who was the leader
of the republican party, endeavored to prove
that congress possessed the right to abolish the
[inferior courts, because they were unnecessary;

Bi

SPEECH Of MR. UOBEHTbOK, OH THIS

but admitted that, if the object were, not to get
rid of the courts, but of tbe judges, the attempt
would be a perversion of power, to an uncon
stitutional end; and, in his,^peeoh on that sub
ject, used the following strong ahd explicit
language: "1 am free to declare, that if the
intent of this bill is, to get rid of the judges,
it is the perversion of your po.wer to a base
purpose; it is an unconsthutionalact. If, on the
contrary, it aims not at the displacing of one
set of inen, from whom you differ in political
opinion, with a view to introduce others, but
at the general good, by abolishing useless offi
ces, it is a constitutional act. The quo animo
determines the nature of the act, as it deter
mines the guilt or innocence of other acts."
The object of this biU is not to substitute an
other and better court for the court of appeals;
this cannot be done; but the object is to en
deavor to legislate the judges out of office: and
if the power existed to abolish the court, the
authority of the republicans of 1802 in con
gress, proves that, to exercise it for such a pur
pose, would be a flagrant violation of the con
stitution. The conclusion is fair, and cannot
be resisted, that, in every aspect of this bill, if
the object be to remove the judges, itis uncon
stitutional. If what had been said during the debate
would not convince the friends of the bill
of its inefficacy, or unconstitutionality, I
doubt (said Mr. R.) whether they would be
lieve "if one were to rise from the dead" and
proclaim the truth in the language of inspira
tion. I will close the arguments which were
promised on the provisions of the constitu
tion, by propounding one question: If the
judges can be removed by a bare majorit/y, why
did the convention require the concurrence of
two-thirds? This requisition is unnecessary,
if less than two-thirds can do what it requires
two-thirds to effect. And if a majority of two-
thirds can be dispensed with, why have such
efforts been made for more than a year to ob
tain that majority? The answer is, that two-
thirds are indispensably necessary. And the
advocates of the bill knew it, or they would
have made the effort which they are now
making, at the last session of the legislature.
Congress, although desirous of removing Chase
from office, never attempted it by "a re-organi-
xatiin" of the supreme court; they admitted
that he could not be removed by this misera
ble expedient: they tried him openly by im
peachment, and failing in that, liberated him
trom further prosecution. Tho Virginian ex
ample is as unfortunate for the advocates of
this bill, as that of the republicans in 1802.
In Virginia, an act was passed, the effect of
which, if acquiesced in, would have been to
change the judges of the court of appeals: but
the judges having resisted it, the legislature
submitted, and thereby acknowledged that
they did not possess the power to remove
the judges by act of assembly. Thus not on
ly the constitution, but the authority of the re
publican party in 1802, and of Virginia, is de
cisively opposed to this bill. It IS certainly

without precedent in the annals of any consti
tutional government.
If it be necessary to fortify this argument
by bringing to its aid the principles of , the gov
ernment, it will be quite easy to shew thatthe
right to legislate the judges of the coUrt_ of ap
peals from the bench while the court exists, is
repugnant to the theory, and subversive of the
ends of the constitution.
The government of Kentucky is limited;
fundamental principles are established by the
constitution, which are beyond the power of
legislation; and the powers of government are
distributed among the three great departments,
in such a manner as that each may operate as
a check upon the others, and thereby produce
an equilibrium. The third department, the
judiciary, is necessary in every free govern
ment, to preserve the balance of power, pre
vent a dangerous concentration in either of the
others, andtp enforce the limitations of the con
stitution: this and the representative princi
ple, are the great discoveries of modem times;
they are the vital principles of free govern
ment, and no government can long enjoy free
dom which does not adopt and adhere to them.
Those who adopted the American constitutions
were wise and good men; they had read the
histories of ancient republics, and they had
read the book of human nature; and from these
sources had drawn the principles Which they
have incorporated into our constituiion. They
knew that, whilst it was desirable to leave
men as free as the common good would allow,
it was equally necessary to secure them against
the passions of our nature, and the fluctua
tions bf parties. They felt thc necessity of
establishing an independent judiciary, to pro
tect the weak, and poor, and obnoxious, froip
the injustice and oppression of the rich, the
strong, and the popular — tp save minorities

from the tyranny of majorities.
The right of the majority to control the mi
nority is derived from nature, and is specula
tively just and unexceptionable; but not al
ways practically proper. In regulating the
affairs of society, the majority has an undeni
able right to control the minority, unless
when prohibited by the terms of the social
compact, or the constitution. But, as in astate ,
of nature the weak man has no security against
the violence of the strong, nor the minor
against the unjust dominion of the major par
ty, it becomes necessary that government
should be established, with such organization
as to guarantee tbe equal rights of all. Con
stitutions are made for the weak, not the
strong; for minorities, uot majorities: majori
ties can protect themselves. Hence the ne
cessity of adopting principles which even ma
jorities cannot ¦violate. It is not only thc sole
object, but the essence of a constitution, that
the stronger man, and the stronger party,shall
be interdicted from encroachment on the guar
anteed rights of the weaker man, and thft
weaker party. By what .svstem of govern
ment this great cud could be most certainly
effected, without unnecessarily impairing the
liberty of tho people, has been the subject of

BILL TO RE-ORQANIZE COURT OP APPEALS.

discussion and experiment for ages; and it has
been reserved for modern times to discover the
secret, which is developed in tiie Amoricari
constitutions. In all of them, the same fun
damental principles are consecrated: in all, we
seethe anxiety of our forefathers, to establish
an independent judiciary; this they consider
ed the anchor of the constitution. Xo people
ever were long free without such a tribunal;
none ever slaves with it. Tho factions of
Athens and of Rome, which so much Convul
sed and degraded those, republics, were un
checked, except by theirown sense of justice:
they had no independent judiciary, to which
an exiled Aristides, or persecuted Miltiides,
or a proscribed Marcellus, could appeal for pro
tection and redress; the wiU of the majority was
the supreme law; power was right. Persecu
tion, proscription, revolution, despotism, and
all the catastrophies incident to the unrestrict
ed licentiousness of majorities — always sub
servient to some insidious demagogue, who
Jitofessed, like Marius, Cffisar and Pericles, to
ove the people— were the deplorabte consequen-
.ees; until at last, liberty herself was exiled,
and her institutions demolished „and her cause,
for ages, surrendered by her votaries. And'
such must be the fate in all times and all coun
tries where majorities are uncontrolled. Hu
man virtue is hot a sufficient security for right
against wrong. Man is under the dominion of
bad passions, and must be governed. Major
"th

ities ofteu err. It was

that

be majority
passed the "alien and sedition" laws — It was
"the majority" that elevated Robespierre, and
put down De la Ffiyette in France — It was
"the majority" that lighted up Sraithfield, in
England; and established the Inquisition and
Auto-de-fe, in Spi^in — Ii was "the majority"
that drove Catoto suicide; subjected Socrates
to . the hemlock, and Aristides to ostracism
— In fine, it was "Uie majority" that scourged
and crucified, ihe Savior ef the world. Ahd yet,
we have been told, in a certain preamble, writ
ten by the gentleman from Jefferson, (Mr. Row
an,) that "it is a solecism in politics, to say
that the ,majority can err;" and that "the mi
nority have no rights!" 'This is the doctrine
of tyranny. Jt was the language of Julius
Caesar, and of every demagogue who has, by
flattery, seduced the people and trampled on
their liberties. It was not the langjiage of the
patriots and statesmen of thc revolution: the
language of our Washingtons, Franklins, and
Jeffersons, was, thatliberty without law, was
the most intolerable despotism; and that, to en
sure justice, and secure the stability of free
government, an independent judiciary is in
dispensably necessary. And this, too, is the
language of the venerated De la Fayette, the
fatriot of two hemispheres, the friend of man-
ind. It is not necessary to read Thucydides or Po-
lybius to learn the importance of three coequal,
co-ordinate departments; it is demonstrated by
the history of England, and the development
of its advantages in the United States. The
sentiments of the most enlightened politicians
of our country, shortly after the revolution,

are exhibited in the letters of Publius, written
by Hamilton, Madison and Jay ; 'which are con
sidered the highest authority in tho United
States. In page44, is this language: "The
science of politics, like most other sciences,
has received great improvement. The effica
cy of various principles is now well under
stood, which wore either not known at all, or
ittiperfectly inown, to the ancients. The reg
ular distribution of power into distinct de
partments — the introduction of legislative bal
ances, and checks — the institution of courts
composed of justices holding their offices du
ring good beliavior, <fec., are means, aud pow
erful means, by which the excelleiicies of re
publican government may be retained, audits
iniperfections lessened or avoided." ' In page
49: "Complaints are every where heard from
our most considerate and virtuous citizens,
equally the friends of public and private faith,
and of public and personal liberty, that our
governments arc too unstable; that the public
goocl is disregarded iu tho conflicts of rival
parties; and that measures are too often deci
ded, not according to the rules of justice, and
the rights of the minor party, but by the su
perior force of an interested and overwhelming
majority." Page 50: Speaking of the gener^
distrust of public engagements, and alarm for
private rights, the author says: "These must
be chiefly, if not wHolly, effects of tte unstead
iness and injustice with which a factious spir
it has tainted our public administration- —
Again: "By a faction, I understand a number
of citizens, Whether amounting to a majority
or minority of the whole, who ai-e united, and
actuated, by some common impulse of passion
or interest adverse to the rights of other citi
zens, or to the permanent or aggregate inter
ests of the community." Page 52: "When a
majority is included In a faction, the form of
popular government enables it to sacrifice to its
ruling passion or interest, both the public
good and the rights of other citizens. To se
cure the public good andprivate rights against
such a faction, and at the same time preserve
the spirit and form of popular government, is
the great desideratum by which alone this
form of government can be rescued from tlie
opprobium under which it basso long labored,
and be recommended to the esteem and adop
tion of mankind." In page 53, after speaking
of a democracy where the majority governs
without the check of an intermediate power,
the author says: "There is nothing to check
the inducements to saerifice the weaker party.
Or an obnoxious individual. Hence itis, that
such democracies have ever been spectdcles of
turbulence and contention: have ever been
found incompatible with personal security, or
the rights of property; and have in general,
been as short m their lives, as they have been
violent in their deaths."
These extracts shew, in strong and vivid
colors, the value of a constitution which lim
its the power of the majority over the rights of
the minority. A constitution is a covenant, or
conti'act, between those who make it and for
whom it is made: its limitations and guaran-

S4

^EEOH OP MB. ROBERTSON Olf THE

tees are intended to protect each from the
the aggression of others, or of all united; to se
cure equal right to life, liberty and property to
the weakest, poorest and humblest citizen. —
Our constitution declares that the habeas cor
pus shall not be suspended in time of peace;
that the liberty of speech .and of conscience
shall be held inviolate; that no m.in shall be
punished without a fair trial by his peers: that
trial by jury shall be preserved, Ac, &c. This
is all beautiful in tlieory; but it is in practice,
a delusion, unless some power exist, indepen
dent of tho majority, to defend those sacred
rights from violation by the majority — to whom
alone the prohibitions of the constitution are
addressed. The humble individual would act
veiy unwisely, to give up his natural liberty,
and. enter into a political compact with others
more powerful than himself, unless he could
have some security from the tyranny of a major
ity. The guarantees in his favor would be only
nominal, unless someumpire should be created,
with the capacity to decide between him and a
tyrannical majority, who may encroach on his
rights, disregarding the compact. The histoiy
of the world proves that no ti'ibunsl can accom
plish this object so well as an independent ju-
diciary;it is thebest safeguard against thc op
pression of the tyrant, aud the passions of the
multitude. The authors of Publius, on this sub
ject, page 419, say that, "In a monarchy, it is
an excellent barrier to the despotism of the
prince; in a republic, it is a no less excellent
barrier to the encroachments and oppressions
of the representative body; and it is the best
expedient that can be devised in any govern
ment to secure a steady, upright and impartial
administration of the laws." Again in page
420: "The complete independence of the courts
of justice, is peculiarly essential in a limited
constitution. By a limited constitution, I un
derstand one which contains certain specified
excefitions to the legislative authority; such for
instance, as that it shall pass no bill of attain
der, no ex post facto laws, and the like. Lim
itations can be preserved in practice no other
way than through the medium of the Courts of
justice; whose duty it must be to declare all
acts contrary to the manifest tenor of the con
stitution void. Without this, all the reserva
tions of particular rights or privileges would
amount to nothing." Again, page 421: "It is
far more rational to suppose, that the courts
were designed to be an intermediate body be
tween the legislature aud the people, in order,
among other things, to keep the former within
thelimits assigned to their authority. Thc in
terpretation of thelaws, is the proper and pe
culiar province of the courts. A constitution
is in fact, and must be regarded by the judges
as fundamental law. The constitution ought
to bepreferred to the statute; the intention of
the people, to the intention of their agents."
Again iu page 423: "This indejjendence of
the judges is equally requisite, to guard the
constitution and the rights of individuals from
the effects of those ill humors, which the arts
of designingman, or the influence of particu-
ar conjunctures, sometimes disseminate among

the people themselves; and which, thougli they
speedily give place to better information, and
more deliberate reflection, have a tendency in
the meantime to occasion dangerous innova
tions in the governmeiiL and serious oppres
sions of the minor partin the, community." —
Again in pago 424: "The benefits of the in
tegrity and moderation of the judiciary, have
already been felt in more states than one; and
though they have' clispleased those whose
sinister expectations they may have disap
pointed, they must have commanded the es
teem and applause of all the virtuous and dis
interested. Considerate men of every descrip
tion ought to prize whatever will beget this
temper in the courts; as no man can be sure
that he may not be to-moiTow, the victim of a
spirit of injustice by which he may be a'gainr
er to-day. And every man must now feel that
tho ine'vitable tendency of such a spiiit, is to
sap the foundations Of public and private con
fidence, and to introduce in its stead, univer
sal distrust and distress." And again in page
420, after endeavoring to prove that the juiE-
ciary, from its constitution, is the weakest de
partment, and that there can be no danger of
oppression from an independent judiciary, but
that the only danger is fromldependent, servile
judges, the authors say: ""That as liberty ca!n
have nothing to fear from the judiciary alone;
but would have every thing to fear from its
union with either of the other departments;
that, as all the effects of such an union must
ensue from a dependence of the former on the
latter, notwithstanding a nominal and appa
rent separation; that, s^s from the natural feeble
ness of^ the judiciary, it is in continual jeopaj-
dyof being overpowered, awed or influenewl
by, its CO ordinate braiich,es; that, as nothing
can coiiti'ibute so much to its firmness and in
dependence as permanency in office, this qual
ity may therefore justly be regarded as an in
dispensable ingredient in its constitution, and
in a great measure as the citadel of the public
justice and public security." These extracts
require no commentaiy : nor can it be necessary
to multiply them.
Such are the seiitimeuts of those great and
good men, who achieved our independence,
and established our free institutions. And sim
ilar were the opinions of those who formed the
Kentucky constitution. They intended that
the head Of the judiciary department should
not be dependent on the executive, or on a bare
majority of the legislature, for thc tenure- of
office; that it should be a check pn the usurpa
tions of those tw_p departments, and should,
therefore; have a'will of its own, independent
of a majority of the legislature, or of the leg
islature and executive united; and therefore,
the constitution requires the concurrence of
two-thirds to remove a judge. If the majori
ty can constitutionally turn the judges out of
oflice, by an ordinary act of legislation, all
the precautions of thc constitution ait nugato
ry. It is in this vie^y, that reference hasbeen'
made to the opinions of the virtuous and en
lightened vptariesof liberty, to shew that it is
necessary that a majority should ppver possess

BILL TO RE-ORQANIZE THE COURT OP APPEALS.

the power to remove the judges. The inde
pendence of the judiciary ia not necessary or
proper, for the personal benefit of the judges,
but for the security of the dearest interests of
thepeople; for the defence of those who are
unable to defend themselves.
If the legislature transcend the chartered
barriers of their power; if they pass a bill of at
tainder, or ex post facto law, or a law depriving
the citizen of the trial by jury, or punishing
him for his religious or political opinions, it is
necessary that there should be virtuous and in
dependent judges, willing and able to save
him, and refuse to enforce the unconstitutional
and tyrannical act. Hence the judges are
sworn to support the constitution; hence the
constitution is declared to be the supreme law
of the land; and hence, judges should not be
afraid of the power of those who concun'ed in
violating the constitution, and in usurping from
the people powers expressly prohibited. But
they could not be expected to have the firm-
necs to resist the encroachments of a majority, i
if they are made dependent on that majority.
It is a solecism to admit, that the judges
shall refuse to enforce the unconstitutional
acts of a majority, and that they are, neverthe
less, responsible to the same majority for doing
their duty. If the judge have a right to de
clare a legislative act void, a ma,ioTity of the
legislature cannot possess the right to remove
him from office for exercising that privilege;
thetwo rights cannot co-exist. It is conceded
that the judge possesses the right to decide on
the validity of the acts of the majority. Conse
quently the majority has not the right to re
move him from office for it.
Whenever the doctrine is established, that
thejudges are in the power and underfhe con
trol of a bare majority of the legislature, all
power is virtually absorbed by the legislative
department, which Mr. Jefferson declares to be
tyranny. And then the dominant faction can
trample on th^ constitution, without restraint
or control, and there will be no constitution ex
cept the win of the majority — that majority
will be ever-changing, and consequently there
will be correspondent changes in the judicia
ry, and in their constructions of the constitu
tion — there will be no stability, no safety, no
confidence, no morality, no justice — anarchy,
the worst of all despotism, will reign — ^your
judges must be partizans,_the subservient en
gines of faction — they will be such judges as
those who condemned Sidney and Russell;
such as those of Revolutionary France, the
tame and submissive instruments in the hands
of an accidental majority^ — which majority will
generally be the unconscious instruments, the
blind puppets in the hands of some ambitious
Robespierre, who loves the people for their own
destruction. During the French revolution, the forms of
free government were preserved; but never was
any country cursed with a more sanguinary
despotism than France, under the reign of un
controlled and "unerring" majorities. "The
constitution was a mere "caput mortuum,' as
every constitution wUl be, unless there is some

department so constituted as to possess the
will, and the power to guard and defend it.
The most shocking enormities were perpetrat
ed, in the prostituted name of "liberty ;" reli
gion was banished. Deity was blasphemed,
and the most sacred rights were prostrated at
the shrine of a political Juggemauti The
character of the revolutionary courts is por
trayed by Burl^e, in this emphatic language:
"In them it will be in vain to look for any ap
pearance of justice, towards strangers, towards
the obnoxious rich, towards the minority of a
routed party, towards those who in the elec
tions supported the unsuccessful candidates;
the new tribunals ¦will be governed by the
spirit of faction." Such have been the courts
in all ages and countries, under every form of
government, when subject to the "majority;"
and such will be the Kentucky courts, if this
bill be approved by the people. Your judges,
like Themistocles, will never sit on a bench
where strangers will have an equal chance
with their friends. It is easy to excite preju
dice against men in office, particularly judges;
and it is the interest of those whose object is
their own aggrandizement; to destroy judicial
purity and independence. Pericles, "the peo
ple's friend," could not mount to absolute pow
er until he had prostrated the Areopagus;
and, that being made subservient, in the name
of "the peojie," and of "liberty," he governed
"the people."
There is no danger of judges becoming ty
rants; all history proves it. Tyranny always
springs from another quarter. Whenever de
signing men conspire against the liberties of
the people, they flatter them, and endeavor to
put down the judiciary; and whenever honest
judges are attacked by prominent and aapirinpi;
men, the people are in danger. They should
protect such judges, if they intend to protect
themselves. If the power lo remove the judges by this
bill be acknowledged, there is no longer, in
practice, a constitution; the form may remain,
but the spirit of the living constitution is gone.
It is not for the judges, but for the liberties of
the people, for the constitution under which I
have grown into manhood, that I protest
against the passage of this bill. The stab
which is now meditated, if not averted, may
be mortal — and our rights will then be less
secure than those of Englishmen. What is it
that prompts the English tar, when going into
action, to nail his countiy's flag to the mast,
and shout for England? It is because, al-^
though in many respects he is depressed, his
personal rights are secure from the encroach
ment of the crown, or even an omnipotent
parliament, and he can appeal to independent
courts for justice; aa Wilkes did to Mansfield,
against the outlawry of parliament. Pass this
bill, and sustain it with the people, and you
not only have an omnipotent legislature, but
servile, dependent courts, unwilling;or unable
to support your constitution.
But, said Mr. Robertson, if the legislature
possess the po'wer to remove the judges in the
imode proposed, why exercise it? What bave

SPEECH OP MR. ROBERTSON, ON THE

thejudges done? Have they been guilty of
any misdemeanor in office? ' 'No. Have they
been guilty of any dereliction of duty? No.
Are they unfit? No; all acknowledge their
ability, virtue and fiimness. Do you expect to
•supply their places by better judges? You
will not, you cannot do it. If you remove the
present, you will not have a court in which the
country will, or ought to have confidence: their
acceptance of the office under such circutn-
sfances will prove their unworthiness. Men
combining all the qualities of these judges —
their integrity, their ability, their morality,
their experience, their impartiality— will not
be easily found, or if found, will not accept
the offlcc, humble, dependent!, and degraded,
as it will be rendered
If it were admitted for argument, that the
judges have given an erroneous opinion, would
it be expedient or just to remove them for such
a cause? No judge could then retain his
seat'. Will you remove your governor for im
properly pardoning, or for refusing to sign a
bill which a majority passed? But the de
cision complained of has not had, and will not
have any effect; jvhat end can^theii be effected
by removing the judges? None, except to
give their offices to other men.
But if the decision be erroneous, the error
can be corrected alone by the Supremo Court.
it is the federal constitution which has been
declared to be violated, by the two years' re
plevin act. This isthe constitution of twenty-
ipur states, and must be the same in each. The
Supreme (jourt, which is the court of all, must
therefore control ihe decision of the state
courts on the constitution of the nation. Ken
tucky has no right to dictate to the Union; she
must submit to, and acquiesce in the decision
of the organ of the national will, If the court
of the Union affirm the decision of the state
court, the question is settled beyond the pow
er of the state. If that court should reverse that
decision, the state court must submit, and
conform to the paramount decision in future;
the removal of the judges can then have no le
gitimate object, no practical effect on the ques
tion. If they shall be removed, and theSu-
Court affirm (as they no doubt will do) their
opinion, their successors will be bound to en
force that opinion, thc opinion of the legisla
ture to the contrary notwithstanding. How
can it be evaded? If Kentucky has u, right
to interpret the federal constitution, for every
other state, and to resist the authority of the
Union, every other state has an equal right —
and there is no Union. If the majority must
govern, it is the majority of the people of all
the states, and not of Kentucky, who must de
cide this question. No principle can there
fore be settled, no object, allowable or honora
ble, can be effected by a removal of thejudges;
and the only eftect will be, to destroy Uie pu
rity, the honesty and independence of the
bench. I do not however admit, said Mr. Robertson,
that the decision of the court is ori'oueous; I
have no doubt it is correct, and never will be
reversed.

Having on ' a Nformer occasion argued this
question in extenso, I will not now enter into
all its details. But there are some considera
tions which should not be pretermitted. In
all that has been written and spoken against
thc decision of the court, an intelligent defini
tion of the obligation of a contract could not
lie found. Those who denounce the decision
fail to show its errors; they cannot doit. They
declaim on the subject of state rights, and
charge the court with confounding right and
remedy; this is the burden of the song; yet no
state right has been violated; and the differ
ence between right and remedy is left un
touched by the opinion of the court.
They have decided that a two years' replev
in law cannot constitutionally be appUed to
contracts made before the passage of the act;
that it impairs "the obligation of a contract."
The constitution of the United States declares,
that "no state shall pass any ex post facto law,
or law impairing the obligation of contracts."
An ex post facto law is one which denounces
punishment for an act which was not illegal
when it was done. It is a law which acts re
troactively on the conduct of the citizen. Is it
not fair to suppose that the correlative member
of the sentence has a correspondent meaning?
that a law impairing the obligation of con
tracts, is one operating retroactively on con
tracts? The plain meaning of the clause is,
that no criminal law shall operate retrospect
ively on acts; and that no civil law shall oper
ate retrospectively and essentially on con
tracts. This construction gives a similar im
port to each branch of the prohibition, and
harmonizes with the Objects of the clause. It
was intended that no ex post facto law as to
crimes, nor any oxpost facto law as to con
tracts, should bo valid. Such l,iws arc unjust
and impolitic, and contrai'y to the genius of
the common and civil law. England does
not venture to pass retrospective laws; nor
does any European government of good stand
ing attempt it. They are not restrained by
constitutional inhibitions, but by moral inter
dicts — by the intrinsic injustice of such legis
lation. And shall we, under our federal and
state constitutions, possess the power which
the potentates of Europe do not dare to exert?
The legal obligation of a contract is certain
ly the law which obliges If the law -n'ill not
enforce a contract, it has no legal sanction or
obligation; as the moral obligation is the mor
al sanction, the legal obligation must be the le
gal sanction. The legal obligation of the con
tract is tho legal right to enforce it; the mode
of enforcement may be called the remedy.
This mode or remedy may be changed by the
legishaturo at discretion; provided that, by the
change, the right is not essentially im
paired. If all remedy be taken away, the legal
obligation is destroyed; for that cannot be
binding in law which the law will not enforce.
If destroying the remedy destroy the legal
right, any change in the remedy which im
pairs its efficacy, must necessarily impair the
right or obligation. It it mockery to tell a
man that you do not affect his right, when you

BILL TO RK-0RGAXI2E THE OOTTRT OP APPEALS.

el

deprive him of all the legal means of assert
ing it; he will still have a moral right, but it
is only the shadow — the legal right is the sub
stance. Those who assert that right and remedy are
80 radically distinct, that affecting the one does
not affect the other, ought not to forget, that
legislation can affect legal rights in no possible
mode, except by acting on the remedy. Let
any gentleman state a mode by which the right
can be impaired by law, without acting on the
remedy; it must be admitted that there can be
none. Then the whole argument is Surrender
ed; for the admission is an acknowledgment,
that if, by law the legal right shall be im
paired, it is impaired by postponing, or so
changing the remedy as to affect the value of
the right; and consequently, that if it be un
constitutional to impair or destroy the right, it
is unconstitutional to deny the remedy, or
change it so as to impair or destroy the right;
because it is only by changing or destroying the
remedy that the right is affected. The only
question then is, whether by passing the two
years' replevin act, the remedy is so far post
poned as to affect the value of the right? No
one can deny that it is. Indeed it was not
remedy, but delay; it was not intended to give
remedy to the plaintiff, but relief to the de
fendant. Away then with the known distinc
tion between right and remedy; it proves no
thing; it is a quibble — an evasion— a delusion.
If a contract be made between two persons
cast away, like Alexander Selkirk, on an is
land, without civil rule, it would generaUy be
legally obligatory; for they should be presumed
to'contemplate eitber the law of the govern
ment where they might first meet, or more
probably the law of the countiy to which one
or both of them looked as home; and the law
to which they should be presumed to refer
would regulate the civil obligation of their con
tract. "The lex loci contractus does not fix the
legal obligation, when the contracting parties
contemplate the law of any other place, as they
are presumed to do, when a contract made in
one country is to be performed in another, in
which case the lex loci solutionis, or the law of
the place of performance will govern.
The response of thejudges has discussed this
subject so ably, that it is unneces^ai-y for me,
said Mr. Robertson, to dwell on it. It is clear
that the court have decided correctly; they
hav« given the construction to the constitution
which those who made it gave to it. Luther
Martin, who was a distinguished member of
the federal convention, voted against the con
stitution, and in a letter to his constituents, as
signed as one strong reason, the insertion of
the clause in relation to the bbligation of con
tracts. This is his language: "The same sec
tion also puts it out of the power of the states
to maie anything but gold and silver coin a
tender in the payment of debts, or to pass any

law impairing the obligation of Gonti-a,cts.
_ f 1 _ „ _J«. 4.1. n «- +1-11-1 i-.i i-ini iTlif trtrt 'hmoa nP Dili

consider, sir, that there might be times of such
great calamity and distress, and of such ex
treme scarcity of specie, as should render it
the duty of a government, for the preservation

of even the most valuable part of its citizens,
in sopie measure to interfere in their favor, by
passing la>ws totally or partially stopping the
courts of justice, or authorizing the debtor to
pay by instalments, <fec. The times have been
such as to render regulations of this kind ne
cessary in most or all of the states, to prevent
the wealthy creditor and the monied man from
totally destrbyirig the poor, though honest
debtor. Such times may again arrive. I
therefore voted against depriving the states of
this power," &c. In pages 37 and 243 of the
Letters of Publius, on the authority of which
the states ratified the constitution, ihay be
found in substance the same doctrine. What
can be more irresistible authority? Those
men were all members of the convention, and
knew .what they intended to effect by the
clause. They had felt the evils which were
produced by delay and relief laws, in the
states, before the adoption of the constitution,
and thought it necessary to prevent their re-
cuiTcnce. "Those evils are depicted by the
historians of the times; one or two extracts only
will be necessary to show what they were.
"The effect of these laws interfering between
debtors and creditors, was extensive. They
destroyed public credit and confidence between
man and man, injured the morals of the peo
ple, and aggravated the final niin of the unfor
tunate debtor, for whose temporary relief they
were brought forward."
Speaking of the adoption of the federal con
stitution, and the necessity and intent of the
clause in relation to contracts, the historian
observes: "Their acceptance of a constitution,
which, among other clauses, contained the re
straining one, which hasbeen just recited, was
an act of great self-denial. To tie up the
hands of future legislatures, so as to deprive
them of the power of repeating similar acts on
any emergency, was a display both of wisdom
and magnanimity."
Speaking of the effects of the new constitu
tion, and particularly tbe clause which he had
described, as intended to prevent any interfer
ence between debtor and creditor, the historian
says: "Public credit was reanimated; the own
ers of property and holders of money freely
parted with both, well knowing that no future
law could impair the obligation of contracts.''
Here are disclosed, in irhpressive language,
some of the reasons which induced the adop
tion of that clause in the federal constitution,
which forbids the states to impair the obliga
tions of contracts. Experience had demon
strated, not only the injiistice and inefficiency,
but the demoralizing and distracting effects of
legislating for the relief of the debtor, at the ex
pense of the creditor class of tho community.
It was unjust, because it denied to the creditor
.the enjoyment of what he was entitled to fairly
and honestly; it was inefficacious, because it
produced more mischief than good; it did not
eventually effect the berievolent purposes for
which a "misguided philanthropy intended it.
It was very demoralizing, because it generated
idle habits, destroyed confidence, and un
hinged society. But the great objection to it

SPEECH OP ME. ROBERTSOIT, OH" THS

was that^ if allowed to be practised by the
states, Without restriction, there was danger of
its perversion and abuse, to such a degree, as
to irritate the citizens of different states, and
ultimately dissever Lh„ union, or at least very
much impair the moral ligaments which alone
can preserve it from disruption. It was there
fore deerued better to deprive the states entire
ly of the power, than to jeopard the stability
of justice, and the integrity of the union, by
running the hazard of its abuse. Justice
should be stable, aud of unvaried tenor
throughout the union; it is a national object
One object of the federal union is declared to
be, "to establish justice." The citizens of
each state are protected in the security of equal
rights, in all the states; this crbates a national
spirit— -a fraternal feeling in the whole Ameri
can family. And under this view, no clause
is more essential to the union of the states than
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 Ken
tucky; 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 con
cur with our Court of Appeals in the construc
tion 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 op
posed to it.
Every state -which has acted on the ques
tion, has expressed the same sentiment; Mis
souri, Tennessee, Mississippi, Vermont, North
Carolina, have all decided that such an act as
the two years' replevin act of Kentucky is un
constitutional. The Circuit Court of the
United States, Judge Washington presiding,
has settled the same principle, in the case of
Golden vs. Prince. In Virginia, since the late
war, an attempt was made in the legislature to
pass a similar law, and afl;er an able debate, it
was decided almost unanimously that it would
impair the obligation of contracts, and there
fore would be unconstitutional, and the meas
ure was abandoned. This infOnnation I have
from a gentleman now in the lobby, who was
a distinguished member of that legislature.
The Supreme Court has virtually given the
same decision in several cases; and no superior
court in America has given any other decision.
The opinion of the Supreme Court of North
Carolina on this subject, in the case of Critten
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 Ap
peals. 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

tract, are in the eye of justice equally sacred:
and whether those of the creditor are sacrificed
to those of the debtor, or the subject be reversed,
we are compelled to think that the constitution
is overlooke,d. No unimportant part of the ob
ligation of every contrac arises from the in
ducement the debtor is under to preserve his
faith. In most cases he (the creditor) would
reserve both money and property, in his own
possession, were he not assured that the law
animates the industry, and quickens the punc
tuality of his debtor, and that by its aid he can
obtain payment in six or nine nionths. The
act under review delays this assurance." "The
right to suspend the recovery of a debt for one
period, implies the right to suspend it for an
other." It is difficult to conceive how the law
can otherwise impair an existing right, than by
withholding the remedy, wliich is in effect to
sespend the right."
In the face of such a formidable array of au
thorities — the opinions of those who made the
constitution; of those who lived cotemporane-
ously; of eveiy state in the Union which has
expressed an opinion; the decision of the Uni
ted 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 consti
tution means, urdess 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?
Ought they not at least to doubt, and doubting,
to acquiesce, and recoil from the attack which
they are making against a co-ordinate depart
ment of the government? Even the elaborate
replication to the response of the judges,
when examined, is a virtual concession
of the correctness of the opinion of the
court. In all that long document, there is no
attempt to explain the import and design of
the clause of the constitution in relation to the
obligation of contracts — it is ad captandum,
metaphysical and evasive; it surrenders the
argument. The author confounds the plain
aud acknowledged distinction between the
moral and the legal obligation. He inquires
what was the obligation of the contract or cove
nant entered into between Deity and Abraham!
and answers it himself, by inquiring in what
court Abraham could have arraigned his God
for a breach of the Covenant. "This is irreve-
verent, and is only alluded to, to show the eva
sions and miserable artifices of the book.
Does the author of the book suppose that the
covenant with Abraham had any civil obliga
tion? 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
apy 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
nieans, consequently the obligation of a con-

BILL TO RE-ORGANIZE COURT OP APPEALS.

89

tract between A and B, does not consist in the
right to enforce it by legal means. How falla
cious the idea! But such are all the arguments
in the long book. Let it go to the people with
the response, and it cames its antidote. It is
not comparable to that luminous and unan
swerable vindication of the court. The re
sponse will be read by our children, as a car
men necessarium, when the replication will
have sunk into oblivion — and when the reputa
tion of its author shall have been swallowed
up, like tho Niger, in the great moral desert to
wliich it is hastening, the fame of the judges,
like the Nile, will flow on, full, perennial and
refreshing. An exasperated party may remove the
judges from office, but they cannot disgrace
them — they cannot soil their characters. The
good and the wise will surround them with
their confidence and their plaudits, when
those now engaged in the uiAallowed attempt
to degrade them, are remembered only as were
the blind and envious mob, who exiled Aris
tides, because he was JUST. The act which
deprives them of office will only increase their
claims to higher and better office; it will
transmit their memories to posterity, hallowed
by the recollection that they were martyrs in
the cause of justice, of truth, and of constitu
tional liberty: it will extend the horizon of their
fame, and imprint their merits in proud relief
on their country's monuments.
How much more enviable is the fortune, and
elevated the character of a virtuous man, pun
ished for his incorruptible purity, than of him,
who, to acquire a transient triumph, or an
ephemeral fame, has helped to pull him down?
Virtue will triumph — truth will eventually
prevail. Men pass away and are forgotten,
but principles are immortal. The day may
not be far distant when the proudest of us may
wish that he were a Boyle, an Owsley, or a
Mills, and had been removed from office for his
virtue and fii'mness. From my boyhood I have
known two of these judges intimately, and it
is with pride and confidence that I declare,
that I never knew more virtuous, more amia
ble, more honorable men — purer men or better
citizens, than John Boyle and William Ows
ley. They are ornaments to the bench. Vv'ith
the other judge I am not so well acquainted,
but I know enough of him to believe that he is
an honest and upright man, and able judge.
To defend such men in such a cause cannot be
criminal — to me it is the proudest actof my life.
I consider myself in ttis humble and unpopu
lar effort, as one of a small and proscribed
band, who are the forlorn hope of the constitu
tion. And although I have a foreboding that
this bill will pass, ,1 will not despond ; for I re
collect, that although the darkest day which
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. In this unavailing effort, it is not the cause
of the judges alone that I advocate, said Mr.
Robertson, but the cause of order, of safety, of
justice, of liberty — the stranger's causes— the
13

poor man's cause — the cause of that constitu
tion which is the boast of our country, aud the
panoply of its people.
If the people ratify the passage of this bill,
the constitution is laid low at the feet of any
ambitious man whomay lead a majority; the ju
diciary will be humbled,all power engrossedby
the other departments, and instead of being
governed by the principles of eternal justice,
fixed as landmarks in the constitution, we
shall be under the dominion of the resent
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
with revolutions, distrust and licentiousness.
For if the majority can effect their objects in
passing this bill, there is nothing in the pow
er of men, which they may not do. It will
then be in vain that the constitution says to
them, you shall not pass a bill of attainder;
they will pass it, if they wish to do so. And
to whom can the appeal be made? Not to the
judiciary; they are no longer a co-ordinate de
partment. They bow to the strong party — the
very party that they were created to check.
We may still have a paper constitution, but
the principles which sustain and enforce it
will be prostrated. We may still have the ap
pearance of liberty; so had the Romans under
Augustus. We may still have patriots, but
they will be proscribed; their aspirations will
be treason, and those who govern will be
called the people's friends, and will tyrannize
in their name, — like Clodius, who, after hav
ing caused the exilation of the patriotic Cic
ero, demolished his house, and erected on its
ruins a statue to "Liberty?" If public sen
timent sustain this bill, such may be the con
sequences. This drama is about to close; we are in its
last act. May its last scene be as honorable
and as ennobling to Kentucky, as its preceding
ones have been humiliating and alarming.
May we yet behold the ark of our safety, after
weathering the most frightful storm that ever
threatened our ruin, ride in safety and triumph
into its old harbor, the people's affections, with
"Liberty and Law" inscribed on its floating
banner. Whilst we are figuring on the stage in
this eventful drama, we should know, that it
is not so importaHt what parts we play, as that
we play them well ; we act not only for ourselves,
but for those who shall come after us and for
the people of other states. The whole Union,
as in an amphitheatre, are looking with deep
concern on our deliberations, and are praying
that Kentucky may be saved from degrada
tion. And shall their entreaties, their opin
ions, be disregarded? Will not a justHea-ven
interpose, and prevent the reckless demolition
ofthatpolitical edifice, which was reared un
der the auspices of a divine Providence? Is
there no Manlius, to give the alarm from the
¦Watch-tower? no Camillus, to save the citadel?
no Ulysses, to steer our shattered ship from the
whirlpool of party, and save the crew from
, those siren sounds, "piyil liberty," "the m^-.

*jO

SPEECH OP MR. ROBERTSON OK THE

jesty of the people," which are uttered to se
duce and to destroy?
I have, Mr. Speaker, taken my passpge in
this vessel; my wife and children are on
board. I will cling to her as long as she floats,
and should she sink, I will seize her last
plank, as my best hope!
In the humble part which it has fallen to my
Ibt to bear in this great question, I expect not
victory, I solicit not appliuse. My only Wish
ia, that I may promote the welfare of the coun
try which gave me birth, and entitle myself to
the reputation of an honest man I fear not
responsibility — Heaven made me free, and I
will not make myself a slave. I have not con
sulted men in power. Although not one drop
of patrician blood runs in my veins, I am enti
tled to the humble privilege of obeying the dic
tates of my own conscience, and of fearlessly
uttering my opinions. "And I shall deem it
one of the most fortunate incidents of my life,
that I have had an opportunity of protesting

against this ruinous and violent act, and of
transmitting to my posterity, on the record, a
memorial of my opposition to it.
If, by any exertion which I could make on
this floor, I could avert the fatal blow that is
aimed at the very heart of the constitution, my
highest ambition would be fully gratified.
But, sir, my efforts are lost — the die is cast —
the constitution falls! and the only consolation
is a belief that I have done my duty. Others
may wear their crowns of laurels, foi their vic
tory over the great charter of the people's
rights. As for me, I prefer the approbation of
a sound°conscience, even in obscurity, to the
proudest station purchased at so dear a price;
with this, the^umblest station cannotmakeme
miserable; without it, the most exalted could
not make mehappy.
"One self-approving hour far outweighs
Whole years of stupidstarers, and loud huzzas;
And more true joy, Marcellus°exiled feels.
Than Csesar with a senate at his heels."

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.
Itbeing the purpose of a manifesto to commiit the members of the leg
islative 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 eifort
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 proph
esied 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 condeilsed protest, for
galvanizing his desponding party, and affording to all, who might de
sire honest investigation, a text for argument against the act. And ac
cordingly the following protest was prepared by him, signed by the mi
nority, 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, cour
teously moved a dispensation of the reading of it, audits 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 Beaucliamp, 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 dorCtkick it out of your House, it will blow us all sky-high."
Mr. Rowan immediately moved a reconsideration of the vote just giv
en; 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 IINOEITY,
Against the Act Re-organzing Ihe Court of Appeals.
[December, ISS'l.]

The undersigned, composing the minority
of the legislature, who voted against the act
"reorganizing the Court of Appeals," being
about to separate, perhaps never to meet on
this theatre again, cannot, consistently with a
sense of duty to ourselves, our constituents,
and the constitution of our country, close our
official duties, without uniting together, and
with one voice, respectfully, but firmly and
solemnly, protesting against this unprecedent
ed act, as unconstitutional, unjust and alarm
ing. The constitutiou declares, that "the .ludges
of the supreme and inferior courts shall hold
their offices during their good behavior, and
the continuance of their respective courts."
While the court continues, the judge is entitled
to his office, until removed for misbehavior.
If he be charged with malfeasance in office,
the constitution requires that he shall be im
peached; but if, for any other reasonable
cause, not sufficient for an impeachment, it be
proposed to remove him, it is necessary that
two-thirds of both branches of the legislature
should concur in an address to the Governor to
remove him. The constittition tolerates no
other mode of removing the judge from the of
fice; this is denied by none. If then the court
cannot be abolished or discontinued, the at
tempt to remove the judges by its reorganiza
tion ia "palpably and obviously" unconstitu-
rional. We insist that the Court of Appeals
is created by the constitution, and therefore
can only be abolished by thepeople, in con
vention. No stronger evidence of this is necessary,
than the following extracts from the constitu
tion: "The powers of the government of the
state of Kentucky shall be divided into three
distinct departments, and each of them con
fided 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^egis-
lative power of this commonwealth shall be
vested in two distinct branches," <Stc. "The
judiciary powers of this commonwealth shall
be vested in one supreme court," &c. Each de
partment is created by the constitution, for
wise ends — and must exist as long as the con
stitution endures. There must be a judiciary
department, as well as legislative and execu
tive. The ultimate powers of that depart
ment must be vested in one court of appeals.
There must be an executive department. The

supreme powers of that department -must b^
vested in a chief magistrate. The Governor
can only be removed from his office by two-
thirds, on impeachment — the office cannot be
abolished — it cannot be removed from him by
any act of the legislature. The judges of the
Court of Appeals can only be removed from
their offices by two-thirds, either by impeach
ment or address. The offices cannot oe re
moved from the judges by any act of the leg
islature. The court cannot be abolished; and
the judges, unless removed by impeachment or
address, are en titled to hold their offices during
the continuance of their court. There shall be
a Court of Appeals, and but one Court of Ap
peals. If the legislature can abolish, or dis
continue it for a moment, there is nothing to
prevent its abolition forever. But the con
vention who formed the constitution have not
thought proper to leave to the legislature thc
power of creating, or destroying, or modifying,
or changing the three great departments of the
government; they are fixed oy the constitu
tion, and are as stable and immovable as that
sacred and inviolable charter. Although the
governor may die or resign, there is still an ex
ecutive department, and it is the same depart
ment. And although the judges of the Court
of Appeals may die or resign, thore is still a
Court of Appeals, and it is thc same court.
The officers, m each case, may change, but the
office is the same — the executive still continues
— ^the court stUl continues. This is the doc
trine of the constitution — it is the doctrine of
genuine republicanism— it was thc doctrine of
the republicans of 1802, with Mr. Jefferson at
their head. The republican party in Congress,
iu 1802, acknowledged that the supreme court
could not be abolished, nor thejudges removed
from office by au act of ordinary legislation;
because the court was established by the con
stitution, 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,
whicli are established by law, may be abol
ished by law, whenever they become incon
venient or unnecessary.
Our constitution, like that of the nation, al
lows the legislature, from time to time^ to es
tablish the inferior courts; because, experience
might prove the necessity of changing those
courts, so as to adapt them to the condition of
the country. But each constitution requires
that there shall be one supreme court, and tho

ACT RE-ORGABTIZINQ THE COtIRT OF APPEALS.

93

language of each is substantially the same.
By each, a supreme court is ordained and es
tablished, "rhe constitution of Kentucky
does not require that the inferior courts shall
be circuit or quarter session courts, but it does
declare and require that there should be one
Court of Appeals. Our circuit courts did not
not exist until established by the act of 1802.
But the Court of Appeals has existed from the
date of the constitution. The first were created
by the act of the legislature; the other was es
tablished by the paramount act of the people in
convention. The same authority which ere
ates, may destroy; therefore, the legislature
may abolish the circuit courts — but the people
alone, assembled iu convention, can abrogate
the court of appeals.
But this legislatuie, as if above the constitu
tion, bave arrogated the right to abolish the
Court of Appeals, by its "re-organization," and
to remove the incumbent judges from office, by a
bare majarity, whilst their "court continues!''
We consider this not only an unconstitu
tional and high handed measure, but one.
which, if approved, will prostrate the whole
fabric of constitutional liberty; we do consider
it a REVOLUTION! We consider this un
paralleled act, as an attempt, by the majority
of the legislature, to consolidate their power,
and perpetuate their supremacy, over the
rights of the minority and the canstitution, by
destroying the independence and purity, and
impartiality of the judiciary. And if it be
countenanced by the people, we believe that
our courts will be subservient to the strong
party, or party in power — that we shall be gov
erned by factions — that "liberty and equality"
will be empty sounds — that the ambitious and
the powerful will hold in their hands the des
tinies of our state — ^that the minority will, in
deed, have "no rights," and will be proscribed,
as we believe it has been- resolved that WE
shall be, during tne present administration —
that the freedom of speech and of conscience,
and the rights of life, liberty, and property,
will depend on the caprices of a fluctuating
majority of the legislature; that our courts will
be servile and dependent, like those of revolu
tionary France, under Robespierre, and those of
England, under the Tudors and the Stuarts; and
that the legislature of Kentucky will become
practically, as omnipotent as the British par
liament. These are not the depictions of vivid fancy,
or the spectres of a puerile alarm ; we fear that
they may become sober and solemn realities.
If the people sanction this act of the majority,
where is our seSirity? Their approbation of
such an act would indicate a destitution of that
reverence for their constitution, which is the
soul of every constitution, and without which
no people ever were or ever will be free. Ours
is notjthe language of prophecy, all of whose
predictions are yet to be fulfilled — as passing
scenes will prove. Although we are not ini
tiated into the "arcana imperii," our eyes have
seen and our ears have heard enough to enable
us to understand "the signs of the times." —
When we see new judges appointed to super

sede the old ones, some of whom are known to
have been active and clamorous in endeavors to
prostrate the court; when we see, at the head of
these new judges, the leader of the majority,
who has been charged with exerting his in
fluence in, and out of the legislature, in caucus
aud otherwise, whilst Secretary of State, to
procure the passage of an act, to provide of
fices for himself and friends; when we hear,
day and night, of our chief magistrate inter
meddling, and endeavoring, with all his means
of persuasion, to influence legislation; and
'when we are told that he has proscribed all, or
most of those who voted against him — can we,
as faithful sentinels on the people's watch-
towers, tell them, "all's well?" We cannot,
we will not; we would be faithless to our
selves and treacherous to them; we will tell
'them the truth, and are prepared for the conse- '
quences. We will tell them, that the new judges are
virtually pledged to support the party in pow
er; that we do believe that they are, in every
essential attribute of an enlightened, indepen
dent and incon-uptible bench, inferior to the
old judges; that such a court, organized under
such circumstances, will not, we fear, possess,
or even deserve to possesi, the full and unhesi
tating confidence of the people; that, to pro
vide for particular men, we believe new and
unnecessary offices have been created; and to
consummate the object, when the people are al
most sinking under embarrassment and dis
tress, the salaries of the new judges of the
Court of Appeals have been raised from four
thousand five hundred dollars to eight thou
sand dollars.
All this we have in our places faithfully and
honestly endeavored to avert, but our efforts
were unavailing. The judges had been fully
and constitutionally tried, and acquitted — but
that which shields the felons of the country
could not protect them — they are not liberated
after one trail — they cannot escape. "Power"
is converted into "right" — and the constitution
is under the feet of a triumphant majority, who,
if not checked by the people, may hereafter
exercise all power, legislative, executive, and
judicial; which, Mr. Jefferson and other patri
ots of the revolution have denounced as the
most intolerable despotism. Against this sort
of tyrtany our fathers protested in the Declara
tion of Independence; against this sort of ty
ranny they fought, and bled, and conquered;
and against it, those of their sons who cherish
their principles, will ever PROTEST, whilst
they have tongues to speak, or pens to write.
And wo now declare to this legislature, and to
the people, that if this memorable act of a ma
jority be submitted to, or enforced, liberty is in
danger, justice is in danger, morality is^ in
danger, religion is in danger, and every thing
dear and sacred is in danger. We will have no
living constitution, and against bad times and
bad men there will be no security. This ex
ample will consecrate every . encroachment
that power can make on the rights of the poor
and the humble, the persecuted and the vir-
|tuous.

94

PROTEST OF THE MINORITY.

The only privilege now left' the minority, is
to complain and remonstrate, by appealing to
the people. We had thought when the fatal
act passed, that we would retire from the hall
of legislation, and leave the majority to act
without obstacle or embarrassment; but on
more mature reflection, we have deemed it
most prudent to remain at our post until the
last moment of the session, and to close it on
our part by an united and candid expression
of our unqualified opposition to a measure
which, if supported, we believe, strikes the
constifiution of our country dead, and con
signs our most cherished rights to the vortex
of party strife and ambition.
Appealing, therefore, to our own consciences,
and to the God of the universe, for the recti
tude of our conduct and the purity of our mo
tives, we do now, for ourselves, our constitu
ents and our posterity, in the name of the con
stitution and of justice, enter on the Journal
this, our solemn protest against the late mem
orable act of the majority, as most alarming
and unconstitutional.
Members of the House of Representatives.
G. Robertson, Charles M. Thruston,

John Green,
Robert Taylor,
Archibald Woods,
Dabney C. Cosby,
Daniel Breck,
R. B. New,
Bourne Gogging,
James Ford,
David Gibson,
C. M. Cunningham,
Jas. Simpson,
James True, jr.,
W. C. Payne,
B. Hardin,
H. C. Payne,
L. Williams,
S. Turner,

C. B. Shepherd,
Samuel Brents,
Robert Wickliffe,
Philip Triplett,
John Sterrett,
J. M. McConnell,
James Farmer,
G. I. Brown,
William T. Willis,
Clayton Miller,
Uriah Gresham,
Thomas Kennedy,
W. Gordon,
John ^ Bates,
Silas E-vans,
H. Crittenden,
G. Morris.

Members of the Senate.

John L. Hickman,
Thos. C. Howard,
Chilton Allan,
James Davidson,
Martin Beatty,
Sam. W. White,

John Faulkner,
Robert Stephens,
Granville Bowman,
Martin H. Wickliffe,
James Ward,
M. Flournoy.

PRELECTION.

Although the people, by a large majority, decided against the re-or
ganizing act, in August, 1825 — yet, as only one-third of the Senators
were elected in that year, the Senate stood equally divided between the
antagonist parties, with the advantage, to the Judge-breakers, of hav
ing on their side the casting vote of Lieutenant Governor, Robert B. Mc
Afee. '
On the 14th of November, 1825, which -was the 8th day of the session,
a bill to repeal the re-organizing act passed the House of Representa
tives by the following vote —
Yeas — Mr. Speaker, (Robertson) James Allen, Bainbridge, Blackburn,
Breck, Breckinridge, Brown, Bruce, Bruton, Cowan, Cox, Crittenden,
Cunningham, Davis, Duke, Dunlap, Dyer, Evans, Farmer, Ford, Gaines,
Gibson, Gordon, Green, Grundy, Hansford, Hanson, Hardin, Harvey,
Hutchison, James, Logan, Marshall, Mayes, McConnell, Morris, New,
Owings, Owsley, Reed, Skyles, Slaughter, Sterrett, Street, Sichard Tay
lor, Robert Taylor, Z. Taylor, Timberlake, Thomasson, True, Turner,
Underwood, Waddell, Walker, Wilson, A. White, Woodson and Yan
tis— 8.
Nays — Messrs. J. J. Allin, Barbee, Carter, Clay, Chenowith, Coleman,
Coombs, Daniel, Elliston, Fletcher, Fulton, Hall, Haskin, Lackey, Lee,
Martin, Maupin, M'Clanahan, Miller, M'Millan, Mullens, Napier, Nut-
tall, Perrin, Porter, Prince. Saihuel, Spalding, Stephens, Tarleton,
Thomas, Wade, Ward, E. Watkins, Wilcoxen, Wingate, and S. White
—37. But it was rejected in the Senate by an equal vote, the Lieutenant
Governor voting against it. On an amendment striking out the whole
of the original bill, and substituting an amendment reducing the number
of judges of the new court prospectively to three, and their salary to
$1,200 the vote, of the Senate was as follows:
Yeas — Messrs. C. A. Allen, J. Allen, Barret, Cockrill, Daniel, Daviess,
Dudley, Ewing, Forsyth, Hughes, Mayo, P. N. O'Bannon, W. B. O'Ban
non, Shelby, Smith, T. Ward, Wood, Worthington, and Yancy — 19.
Nays — C. Allan, Beatty, Carneal, Crutcher, Davidson, Denny, Faulk
ner, Garrard, Given, Hickman, Howard, Locket, Muldrow, Pope, Ste
phens,;;. Ward, White, M. H. Wickliffe, and R. Wickliffe— 19.
The House of Representatives having disagreed, of course, to that
amendment, the Senate at once adhered, and thus the bill fell. As both
parties had deferred to the people at the polls, as the last and only um
pire, this unexpected contumacy of the Senate produced unexampled ag
itation. The Judges of the new court — Barry, Haggen, Trimble, and Davidge,
having ceased to do business, and their clerk, F. P. Blair, who had, under
their order, forcibly removed the records from the office of A. Sneed, the
c]erk of the old court, and having closed his office, and refused either to

96 PRELECTION.
surrender the records, or permit any litigant or counsel to have access to
them, the House of Representatives, by a vote of 58 to 34, adopted a
resolution declaring that it was the duty of the old court, through its
sergeant, Richard Taylor, to regain the possession of its records. To pre
vent the restoration, Blair's office was guarded by men and guns, and no
tice was given that, if the sergeant should attempt to retake the re
cords, he would be fired on. He, nevertheless, having been ordered to
take them, had started to execute the order, but was induced to forbear
by the intercession of Mr. Robertson, who met him on his way to Blair's
office. Had he gone on, he would probably have sealed, with his blood,
his fearless devotion to duty, and the consequence would have been much
bloodshed at the capitol, and, not improbably, civil war throughout the
State, then apparently trembling over the crater of a heaving volcano.
In that critical dilemma, the House of Representatives made^the offer
of another olive branch, by resolving that the Governor, Lieutenant Gov
ernor, and the judges of the old and the new court ought all to resign, so
as to relieve the country from the anarchy and perils likely to follow the
astounding recurancy of the Senate and the new court. But this also
failed by the same party vote in the Senate, which body, at the instance
of John Pope, and some others, hitherto of the old court party, passed a
bill for "Compromise," by the appointment of six Appellate Judges, none
of whom were to be entitled to any salary unless commissioned by the
Governor. The mass of the old court party looked on this as a surrender
— at the moment of dawning liberty — oi ihe principle they had so long and
in a manner so self-sacrificing, been struggling to maintain and estab
lish; and, therefore they determined not to tamper with the bill, but to
reject it as soon as offered in the House of Representatives. According
ly, as soon as reported — as it was by Mr. Pope himself, in an unusual
manner, by an introductory speech — ^it was repudiated by the following
vote on the question: "Shall the bill be read a second time?" —
Yeas — Messrs. Barbee, Brown, Cheno'wath, Coombs, Crittenden,
Fletcher, Fulton, Hall, Harvey, Haskin, Lackey, Lee, Logan, Martin,
Maupin, Mayes, McClanahan,M'Cormas, Miller, M'Millan, Napier, Nut-
tall, Perrin, Porter, Prince, Samuel, Sanders, Spalding, Thomas, Thom
asson, Wade, Ward, E. Watkins, Wingate, and S. White — 36.
Nays — Mr. Speaker, (Robertson) Messrs. James Allen, Bainbridge,
Blackburn, Breck, Breckinridge, Bruce, Bruton, Cosby, Cowan, Cox, Cun
ningham, Davis, Duke, Dunlap, Dyer, Elliston, Evans, Farmer, Ford,
Gaines, Green, Grundy, Hansford, Hanson, Hardin, Hutchison, James,
Marshall, M'Connell, Morris, New, Owings, Owsley, Payne, Reed, Skyles,
Slaughter, Sterrett, Street, Robert Taylor, Z. Taylor, Timberlake, Tur
ner, Underwood, Waddle, Walker, B. E. Watkins, Wilson, A. White,
Woodson and Yantis — 52.
No other measure of peace then remained but to appeal once more to
the people, which the majority in the House of Representatives did in the
following manifesto, written at their request by Mr. Robertson.
This last appeal was well sustained, and resulted in the election of
old court majorities in both houses of the legislature, which, early in the
session of 1826, repealed the re-organizing act, removed the obstructions
thrown in the way of the old court, and restored peace and confidence
to a long distracted community.
During the canvass of that year, each party had its newspaper or-

PEBLEOTIOir. 37
gan, established for the occasion; that of the new court was
called "tfie Patnot," and that of the old court "the Spirit of '76.» Among
the arguments published in the latter were those contained in nine
numbers, signed "Plehean," and which succeed the manifesto. These
numbers were dedicated to the Governor, merely as the official organ
and head of the new court party. The address was, through him to
his party, of which the writer considered him as the titular impersona
tion. No personal disrespect to him was intended. He and the author
had been together in Congress on terms of cordial friendship But
such was the temper of the times, that every thing offered to the pub
lic, on that eventful occasion, must, to have much effect, be presented
in a peculiar tone, corresponding with the hostile state of the conflicting
parties, and the morbid condition of popular feeling. "Plebean," though
high-toned and denunciatory, was not more so than the mass of the
publications of that day, and not so much so as many on both sides. It
was then understood, as intended, to be addressed to the new court
party, and not to the Governor individually or personally.

TO THE FREEMEN OF KENTUCKY.

Fellow Citizens; After a session of six weeks
and three days, the most eventful in the an
nals of our state, about to return to our homes,
and surrender the trust which has been con
fided to us, it becomes our painful duty, as
faithful sentinels, to announce to you that "all
is not well." As the immediate representatives
of your interests, and organ,s of your will, con
stituting, as we do, a large majority of the
House of Representatives, it is our melancholy
province to tell you, that those interests have
been disregarded, and that will overruled by
the influence of your Executive, and pertinac
ity of a majority of your Senate. Your prayers
for our success in the great business of pacifi
cation in which we havebeen toiling, have uot
prevailed. Untoward fortune, whom we could
not control, and who was deaf to your voice,
has disappointed our anxious and reasonable
expectations. Such Was her magic spell, that
with all her united exertions, we have been
unable to re-invigorate our debilitated consti
tution, and restore our land to peace. The
circumstances under which we assembled here
were auspicious, and we were exilerated with
the dawnings of a bright and happy era for
Kentuckjr. But this was the vision of an ar
dent patriotism^the illusion of an honest con
fidence. The wild spirit of anarchy and of
domination, which has so long presided over
our dastinies, still lingera in our councils, and
controls their issue. The political horizon,
which we were prepared to behold, ere now,
clear and serene, is yet lowering and porten
tous—that cheering sun, whose light we were
13

ready to hail, as the harbinger of blessings for
our devoted land, is still in eclipse. The
torch of discord, still unextinguished, threat
ens more extensive desolation. Your judicia
ry, which should be the shield of the wegk,
and the panoply of all, is still at the foot of its
victors, disabled by the blows inflicted by a
reckless majority, whose forbearance your re
monstrances could not command — whose up
lifted arm your constitution could not for one
moment suspend. The "Pretenders" to office
in the Court of Appeals, as if driven to desper
ation by some unaccountable influence of chiv
alrous patriotism, or excessive love of money
and power, still hang like au incubus on the
bosom qf your constitution, stifling her voice,
paralizing her judicial arm, and stagnating
her most useful printiples. The "new court,"
the spurious offspring of a caucus, still clings,
as with the grasp of death, to the judicial col
umn of your political fabric, resolved in its ag
ony to tear it down, and either perish in its
crush, or, surviving its fall, mount the ruins,
and stand a monument of its unhallowed tri
umph, and the prop anS. idol of its co-operat
ing party. And recent events indicate that
this fungus excrescence of legislation is to be
nourished not only by your treasury, which it
has alreadyj robbed of" about $6,000 — but, if
necessary, iby the blood of those infidel citi
zens, who shall be so impudent as to deny its
legitimacy, or so daring as to refuse homage to
its usurped authority! This mock tribunal,
defying public opinion, to which it Ijoaslingly
appealed, and which has denounced it as des-

98

TO THE FREEMEN OP KENTUCKY.

titute of all color of authority, manifests a
fixed determination to decide your causes
without your consent, or prevent a decision of
most ' of thein, by the constitutional court.
Your records have been forcibly withheld from
your legal clerk, and for weeks were carried off
and secreted, so that those interested in them
were denied the privilege of having access to,
or inspecting them. Your Executive declares
war against all who shall attempt to enforce
Your will and aid your court in doing your
business; and as you will have seen, by a re
port of a committee of the House of Kepresen-
,tatives,the Governor's son, and other kindred
spirits, with the presumed connivance of his
Excellency, have made military preparations
to carry this horrible threat into fatal execu
tion. After failing in aii appeal to your rea
son, an appeal is now made to your fears — and
if you dare to defend your opinion, you are
menaced wiih brutal force — the ultimate rea
son of despots; and are notified that your de
cision shall be reversed by the royal argument
of the bayonet. If you consider your constitu
tion as worth preserving — if you value it as
you should do, supremely — if you look to it as
the palladium of your liberty — if you intend to
govern yourselves and carry on your govern
ment^ by moral and not by physical power —
look around you and behold your impending
danger — and by a prompt display of your en
ergies, right yourselves. Do not be lulled by
a delusive security. The danger is imminent
and near your doors. Although it has not en
tered your dwellings — although you may uot
have felt its grasj) or seen its footsteps; a gi
gantic power is stalking abroad, which, if not
promptly aud resolutely met, will soon under
mine the foundations bf your constitution, and
impose on you a yoke, which, however gilded
or light, will be to you and your children the
yoke of moral and political bondage.
It is not to reiterate, with all its aggravations,
the story of your ¦wrongs and your sufferings,
that we now appeal to you, but only to vindi
cate ourselves from the awful responsibility of
this solemn crisis, and to call on you as the on
ly supreme power in the commonwealth, to as
sert your rights, and by a proper exertion of
your authority, to avert the calamities with
which it threatens to 'visit and desolate our
country. What you have already endured un
der the administration of politicians, who Were
self-styled republicans, and exclusive friends of
the people, is seen by all and felt by all. You
have observed the progress of the controversy,
which has so long divided and paralized our
once happy and distinguished state, and have
but too deeply- felt its demoralizing and ruin
ous effects — you havo seen the two contending
parties, the one struggling to proseiwe, Ihe
other to destroy our constitution, exasperated
to an extremity, that to many was alarming,
to all humiliating. You have witnessed thc
distraction of neighborhoods and of fami
lies — the destruction of confidence — the de
preciation of the paper, and consequent occa
sional banishment of the metalic medium — the
inconstancy, injustice and unconstitutionality

of party legislation; you have seen with regret,
that this unnatural and inglorious strife had
so engrossed the public attention and enlisted
the popular feeling, that the great interests of
internal improvement and education have been
totally neglected— and that the regulation of
our currency and our revenue, and the amelio
ration of oiir civil and criminal laws have
scarcely been attempted; you have seen men
struggling for power ancl ¦ ofBce, regard
less of the means of attaining them — sanctify
ing all their claims by a seeming devotion to
the libei-ty of the people, and the supremacy
of their will, and verifying, by their conduct,
the Jesuitical maxim, that the end justified,the
means; you have seen them endeavoring to de
grade your most venerable and long tried ser
vants," only to supplant them and fill their
places. You have heard them denounce your
p.atriots as tories, your old soldiers as traitors.
You have beheld them carrying on a fanatical
crusade against your appellate judges, because
they were pure, firm, and enlightened jurists —
because they felt compelled by the obligations
of their oaths, and the clearest convictions of
their official duty, to defend the magna charta
of your rights, and enforce private contracts,
according to the law of the contracts; for de
ciding that if A should lend B $1,000 in gold
or silver, on faith of a law which provided that
all contracts for specie might be enforced in
three months, B could not afterwards consti
tutionally withhold the payment for two years,
without the consent of A — or discharge the li
ability in any thing of less value than $1,000
in specie — a decision which is sustained by
the common sense and common justice of the
whole Union — a decision whicli is enjoined by
your constitution, and one which is fortified
by the concurreht -opinions of every state in
the United States, where the question has oc-
cuiTcd. Yon have heard the venerable judges
of your court of appeals vilified and traduced —
charged with designs on your liberties — called
Kings — tyrants, triumvirs — arraigned for im
puted hostility to the occupant — ^when their
accusers knew well that they had ever been
the occupants* most steadfast friends, and had
sustained, your occupant laws by about fifty
diflerent decisions, many of which have been
rendered since Green and Biddle— and when
some of their accusers were deeply interested
in prostrating the occupant system, and as a
-fit means found it necessary first to bear down
by awe, or expel by threats, those honest men
who, in defiance of all consequences, were de
termined to defend this only rampart, which
defended our homes and firesides, Huinbly
pui-suingthe noiseless tenor of their way, you
have seen these persecuted judges arraigned,
tried, and acquitted, by a political party; and
then, strange to s.iy, you saw the same domi
nant majority, in your last legislature, finding
that the judges would not be subservient to
their party interests, and that they would not
be driven from the liench by abuse; and could
not be removed by impeachment or address,
(the only modes authorized by you in your con
stitution, and which they, by their previous

TO THE. FREEMEN OP KENTUCKY.

99

conduct had admitted to be the only modes)
pass an act to abolish thc "court of appeals,"
ordained and required always to exist by your
written will in convention ; the avowed'objecl
of which sacrilegious act was to remove the
judges, who are entitled to hold their offices as
long as the court of appeals shall exist — and
the inevitable aud ultimate effect of which, if
sanctioned by you, would bo to pull down one
of the three great pillars which uphold your
political temple — and subvert the very founda
tions on which it is reai'ed, and on which all
your security, and all your hopes aud happi
ness are built. Asa necessary consequence of
this mad career, Ave shall have to deplore that
Kentucky is not now, either politically or mor
ally, what she once was — that with all her
cndoivments — with all her pre-eminent re
sources, physical and intellectual, she has
been retrograding, whilst her neighbors, with
inferior natural blessings, have been progres
sing rapidly in their march to wealth and pow
er. That she, emphatically "the land of the
free and the home of the brave," has exhibited
scenes of violence degrading to her honor —
whilst they have been peaceful, prosperous,
and happy. All this we foresaw, and have
endeavored to avert, by warning you of your
danger — by urging a reverence for your consti
tution, by recornmending industiy, economy,
morality, inviolability of contracts, stability
and justice in legislation; we believed that
these were the only sources of your piosperity;
but other men and other principles prevailed,
and obtained a transient triumph over us and
our principles: over the constitution and over
you; which triumph, if not arrested, would
have tended to the dissolution of society aud the
unhingement of all constitutional government.
By the alai'mingaot of last session, attempting
to abolish your court of appeals, you were
roused to a sense of your danger, and of the
objects of those who so long amused you with
professions of their love, and with expedients
for your relief. With all your experience of
the past and forebodings of the future, the
great subjects of controversy, brought at last to
a decisive issue, were by all parties referred to
your final arbitrament. The peculiar charac
ter of the question rendered its decision inef
fectual, by any other tribunal than that of the
great body of the people, which must of neces
sity, from tho structure of our government, bo
the ultimate arbiter of all fundamental politi
cal questions, particularly such as involve the
powers and existence of two co-ordinate de
partments, and perhaps the active existence
of the constitution. You have deliberately
aiid solemnly given your decision at the polls,
ou tho. constitution which you yourselves
made. That decision, whatever jt' might be,
the constitutional party i'elt bound and had
re.iolvedtii submit to; and we had aright to
expect that all who regarded youi- interests, or
their own per.',onal good, would cheerfully ac-
iiuiesco and sacrifice all pride, .all selfishness,
ou the altar of concord, and re-unite cordially,
as brethren of the same language, and religion

principles and consolidate our common happi
ness. We assembled here as your messengers of
peace, to announce your will, tender the Olive
Branch, and proclaim to those (if there were
any such) who Iov.ed their own power more
than your welfare, that there should be an am
nesty for the past, and security for the future.
We felt not as victors; we desired no triumph;
cherishing the most fraternal tcelings, we were
prepared to make an offering ou our country's
altar, of all our resentments for our multiplied
personal injuries, and to remember the scenes
of the past only to profit by their afflictive les
sons. Inspired with these sentiments, and
backed by your will, to which the opposing
party had always appealed as thc supreme
law, we, had a right to expect that the storm of
party would cease longer to rage, and that ere
now our tempest beaten bark, having outlived
the whirlwind, would have swung to her an
chor and reposed on the bosom of the great
deep, the people's enlightened aiid rectified
will. But our expectations have been disappointed
and your will frustrated. At the opening of
our session, our ears, instead of being sa
luted with the mild and mellifluous notes of
peace, were shocked with the shrill clan-
guor of war, blown from the Executive trump;
instead of hearing recommendations of order
and submission to your decrees, we arc left
only to infer froiu the language and temper
of his Excellency, in his late annual message,
that he defied public opinion, the great lever of
the republic, and that, as the guardian of the
people's rights, he was resolved to resist by
force the people's will, and maintain by arms
his triumph over the people's constitution .
We learn from this document, that, although
you had decided against the re-organizing act
of last session, still he determined, by the em
ployment of all the means subservient to his
station, to prevent your judges from doing your
business, and to enforce this unconstitutional,
void, and pestiferous act, until "the Senate"
(not the constitution) should declare it void
by repealing it; and he was even so bold as to
intimate, in terms which cannot be misunder
stood, that if the act should be repealed, he
should still not suffer the judges of the court
of appeals to adjudicate, unless they would
surrender their commissions and accept new
ones from him! Who was prepared for such a
message? Iji what ago and country were a
free and enlighted people addressed m such a
manner, from such a source, and on such an
occasion? We beUevo it is not transcended in
thc annals of Henry the VIII, Charles ,the I, or
Jarues (he II. What! the Governor of the peo
ple, to trample on thc constitution of the peo
ple — menace by pliysical foi'ce, to resist the
wishes of the people, and to denounce a war
again.st ' tho people!! Unawed by . this war
speech, we lost no time in making our decision,
and asserting, in a becoming mannnr, your
rights. On the 3rd day of tho session a reso
lution p.issed the House of Representatives by

and country, in endeavors lo rn-ostablish sound a vote of 60 to 36, declaring that It was tho

100

TO THE FREEMEN OP KENTUCKY.

opinion of that house and a large majority of
you, that so much of the obnoxious act of last
session, as attempted to abolish the court of ap
peals and create another court, was unconsti
tutional and totally void — and that judges
Boyle, Owsley, and Mills, are the only judges
of the court of appeals, and should be so re
spected by the people and all their public
functionaries. This was our response for you,
and in your name, to the proclamation of the
commander in chief. Here we might have
stopped. If the "midnight act" be unconsti
tutional, it is not law — it is a nonentity, audit
is not necessary to repeal it. The constitution
is the supreme law, and all legislative acts con
trary thereto are void. You have deliberately
decided by more than sixty hundredths, that it
is in conflict with the constitution; and to what
power on earth shall an appeal be taken from
your judgment? To the Governor orthe Lieu
tenant Governor? To Senators, wiio disregard
your most formal, written instructions? God
i'orbid. But it is foryou to determine whether
you belong to them, or they to y ou ; whether
your government was instituted for your hap
piness, or their exclusive enjoyment. Suppos
ing that it might be more satisfactory to many
torepeal the reorganizing act, than rely on a
sirajne declaration of its unconstitutionality,
the adoption of the resolution wfis immediately
succeeded by a repealing bill, which passed
the House of Representatives by a large ma
jority, but in the Senate, by the casting vote of
vour Lieutenant Governor, was amended by
substituting another re-organizing principle,
and liable to all the same objections! and when
the House of Representatives disagreed to this
substitute, (as they were bound to do) the
Senate, in the first instance, adhered, and
thereby closed the door on all conciliation and
conference on that bill, leaving the other house
no other alternative than to adhere also, which
they promptly did, and so the bill fell. The
Senate, with nn apparent reverence for your
opinion, and submission to your instructions,
professed a willingness by their conduct to I'e-
peal the act in obedience to your command;
but, when brought to the test, would do so on
ly on the condition that we, faithless to you,
and treacherous to our oaths, would offer up
our constitution iw a propitiatory sacrifice,
and co-operate with them in the unholy scheme
.of eluding your instruction, and enacting the
very identical principle wliich you have pro
scribed as unconstitution,il, and 'wliich yon
have elected us to extiqiate.
The minority asserted (aud it bus been I're-
quently re-echoed) that you havo luit decided
at the polls, that anj' of this meuii.irable act is
repugnant To the constitution. They charge
that you have been deceived and led aw.iy by
improper influpuces. Wo know, .as well as you
do, that this charge is unjust, and we believe
that such a subterfuge will !¦» un,avniling, and
treated by you a^ it deserves. Are you not
capable of free government? Did you not in
vestigate the .subject rcferi'ed? Were not the
elections tested In' it? Can such a destitutmn
cpf principle or of common sagacity be justly

attributable to you, as to excuse the apology
which is offered, by a portion of your public
servants, for refusing to conform to your will,
so emphatically expressed ? If it be excusable
to disobey your instructions now, on tte
ground that you did not understand what you
did, when and how will it be ascertained that
you are right and have not been deluded?
Never, except when your opinions shall be in
accordance with the interests of those who
choose to doubt your capacity always to de
cide irrevocably on subjects fundamentally im
portant to your welfare. You have heard
much about the right of instruction, from the
party who now virtually deny it. What do
"instruction men" now tell you? Nothing less
than this, that when ihey are not suffered to
instruct you how to instruct them, they vriW
not obey your instructions, because you are al
ways wrong when you do not agree with them.
This, when undisguised and nakedly exposed
as it now is, by their late conduct, can be con
sidered nothing less, practically, than an at
tempt tp subvert the elementary principle of
all popular governments.;
W e hold these principles to be fundamental,
and thsso truths to be self-evident — that free
government, being instituted by the people,
and for their benefit, they are the final ju(%es
of a\.\ political questions, the only umpires who
can adjust irreversably, collisions of the de
partments, which endanger the equilibrium of
the constitution; that they alone can decide
who are the constitutional incumbents of their
supreme court, aud their decision on such a
question, whenever and however expressed,
from political necessity, should have uncon-
trolable effect, and cannot be questioned or re
sisted by their functionaries or public agents,
without disturbing the harmony and frustrat
ing the benificeut and republican ends of our
government; that every attempt to elude or
control the people's will on such ultimate
question, by those to whom they have confided
any portion of their power, is usurpation, and
deseiwes their severest and most unqualified
reprehension: That the coiut of appeals is
ordained by the constitution, .and can never
cease for one moment to exist, as long as that
charier possesses one principle of vitality;
that tlicjndges of that court are entitled to hold
their ofticcs during the existence of the court.
or in other words thc constitution, unless re
moved by impeachment or address, with the
votes of two- thirds of both branches of the leg-
islatiu-e; aud, as necessary corollaries, thatthe
court of appeals cannot ho abolished by act of
assembly, nor tho judges thereof roinoved by
less Uian two-thirds of thc legislature; that
the re-(n-^ani2ing act of last session did not
abolish tlie court of appeals nor suspend its
(ixistencc; that it is the indispensable and in
disputable duty of the judiciary to pronounce
acts of tlie legislature to be void, when thc
judges have a clear conviction that they arc
unconstitutional, and to enforce the constitu
tion as the paramount, tho people's law,
against the opposing acts of their servants;
1 that an act of the legislature contraiy to the

TO THE FEEEMEW OP KENTUCKY.

101

constitution is not a LAW, and the citizen who
gives it effect is a trespasser, and the Execu
tive who enforces it by the sword or the bayo
net is guilty of HIGH TREASON! that an un
constitutional act is invalid before as after its
repeal, and that after the people ha.ye decidei
it tobe unconstitutional, all who aid in endeav
ors to execute it should be considered public
enemies ef the people, and their constitution;
that it is not necessary to repeal an unconstitu
tional enactment, but only desirable in order to
tjike, from desperadoes and usurpers, all color
of pretext for their wanton licentiousness under
it; that Messrs. Barry, Haggin, Trimble and
Davidge, have no judicial offices to resign —
and that, if they attempt to adjudicate, since
the people have decided that they are pretend
ers ¦without right, they will be guilty of usur
pation, and if they attempt to execute, by
force, any of their assumed powers, they will
be guilty of levying war against this common
wealth; that the inviolability of our constitu
tion is essential to the life, liberty, and prop
erty of every citizen — and that if you sanction
the invasion of any of its principles, you there
by endanger the whole structure; that each of
the three departments is created by the consti
tution, ana whenever either becomes the
creature of another, the theoi'y of the constitu
tion is subverted, and the government revolu
tionized; that the essence of a constitution
consists in this only, that it is obligatory upon
all the people and all their agents — and that
every act, by whomsoever done, contrary there
to, is void and can have no effect; that no one
feature of the constitution can be changed, ex
cept by the whole people, in convention, and
thatthe constitutional independence of each
department on either of the others, is essential
to the efficiency of the constitution, and indis
pensable to the liberty and security of the citi
zen. The foregoing is the outline of our doc
trines on the great subject before us — it is the
summai'y of our creed. We believe it will
stand the test of time aud the scrutiny of ages.
It has been stamped, with the approbation of
the most enlightened statesmen; and for the
cause of universal liberty , we pray that it may
become universal. It will be defended by the
real patriot to the last extremity, even to the
stake; it contains principles which are the
shield of the poor, the strength of the weak
and weakness of the strong — ^principles which
are the bulwarks of constitutional liberty and
the best hopes of mankind; they constitute the
textbook of the real republican, and whenever
they shall cease to exact your homage, you
will cease to worship at the shrine of the true
Goddess of Liberty, and the altar and the God
dess will sink together at the feet of the mon
ster of anarchy and uproar. Tho most sacred
of these principles are now arraigned by some
as aristocratic, and are rudely and insidiously
.assailed . We call on you to reverence and up
hold tliern. Defend your constitution, and it
will protect you in every trial; to re-establish
it on broad and permanent foundations is our
first and only wish. For this alone we have
struggled — for this we came here; and because

we will not give it up to the winds which
howl around it, they must still rave on, and
you ai'e not allowed to have PEACE.
On the first occasion, when the most vital of
those principles have been brought to a prac
tical and decisive test, some of those very
men, who have declaimed loudest in their fa
vor, and heretofore almost Deified them, shrink
back from them, as the instruments of their de
struction, andnow, being fairly weighed in the
balance, are found wanting. Such are, in our
opinion, those of your servants who have been
solemnly instructed by their constituents, that
the "new court" is unconstitutional, and who,
by defying those instructions, endanger the
peace and safety of the state. They say by
their conduct, that they are the organs of your
will, and as you did not foresee the passage of
the obnoxious act when you elected them, and
instntct them to vote against it, they will not
hear you until they call on you to elect them
again! That an unconstitutional act, although
void, must be enforced on the people, perhaps
to their ruin, until, after successive elections,
they have passed on a majority of the Sena
tors, who aided in enacting it, and command
ed a repeal of that, which in convention they
have declared shall never have existence.
Here you see a bold stroke at the vei'y root of
your liberty. They say farther, that although
you have decided that the "new judges" are no
judges, and although the message admits that
they are odious, yet they shall go on "through
scenes yet untried," and shall not forbear from
further usurpations, unless the "old judges,"
alarmed by their threats or seduced by their
offers, resign and "give up the ship." They
even say that you have not decided that these
worthy men are judges. Have you not decided
that they have not been "legislated" out of of
fice? Who are your judges, if they are not?
If the act which attempted to remove them,
be void, it follows as inevitably as the effect
from the cause, that they are as much in office
since, as before the date of that act. It was not
men, but principles for which you contended;
when you wi.sh to remove judges from office,
you will do it according to the constitution, by
two-thirds; when you come to determine wheth
er men in office, claiming to be judges, are
in office, a majority alone must decide. It is
not a judicial, but a great political question,
which no other power on earth can settle; aud
the very hinge on which the whole govern
ment swings, is broken, if the decision of a ma
jority at the polls be not final aud controlling.
But we have heard that, not'B-ithstanding its
unconstitutionality, the act of last session is
law, and must be considered so until one or
two Senators shall find it their interest, or feel
it their duty to consent to its repeal. This is
neither the doctrine of reason, nor the senti
ment of republicanism. When an inexpedient
constitutional act passes, it becomes the law of
the land, and remains such until the whole leg
islative authority shall repeal it. But an un
constitutional act is never the law of the land.
Thc "constitution is the supreme law of the
land," and all acts "contrary Thereto are

102

TO THE FREEMEN OP liENTUCKY.

VOID." We have been admonished on this
subject, to beware of the fate of the federal
party in 1801. Let tho,s'e who gave the ad
monition take it home to themselves — they
might profit by it, before it be eternally too
late. Let them recollect, that the downfall of
the federal administration was provoked by
the persevering attempts of the then dominant
party, to enforce the alien and sedition acts, in
defiance of the people's will, after they had
been denounced by public sentiment as un
constitutional. The Governor and his friends
should take care, lest by the same career, they
are brought to the same end. And they should
never forget that the strongest charge of the
republican party, against Judge Chase, of the
Supreme Court, was that he refused to declare
the alien and sedition acts unconstitutional.
To decoy us from our allegiance to the con
stitution, many artful stratagems have been
employed by the "new court" party. They
have appealed to oUr fears and our hopes, to
enlist us under their banner, and help to sanc
tify, in effect, their usurpation. It was pro
posed first by his Excellency, and then often
reiterated in each branch of our assembly, that
those who are the judges of the court of ap
peals by the constitution, and those who claim
to be its judges by the void act of the legisla
ture, should all resign; and we were assured
tliat, if we would co-operate in the caucus
business of making judges, and caucus the old
judges out of office, the Governor would nomi
nate four "new judges," two from each party.
This w6 promptly rejected. We considered it
inadn*iissible,for many reasons, wliich it is not
necessary now to detail, but among which, we
will repeat to you the following:
By agi'eeing, wo should have recognized the
validity of the new mode of brealring judges — ¦
t,he very thing which you sent us to explode.
The four judges proposed would have been
judges of the "new court," when you have
said that l:here shall be no such court; they
would have been judges under tho late actof
assembly, and not judges under tho constitu
tion. We had no power to malte judges — the
constitution devolves that duty on tho Gover
nor and Senate — the example would have
lieen deleterious and unconstitutional in its
tendencies; we had no riglit to control the will
of the judges. Tlieir resignation (to bo a re
signation) must be voluntary, not compulsory;
we would notabandon them, because they had
not obandoned the constitution — because they
are virtuous, able, honest men — the friends of
ju.stice, morality, and of law. That to recog
nize a court, by forcing tlie judges to resign, is
liable to all the objections urged against the
new mode of Last winter — thatthe judges could
not, consistent,ly willi their own honor, or their
duty to tlic n'reaf principle, for M'iiicli they
have so long stood on the watchtowcr, now de
sert, their posts— tiiat, before they should re
sign, justice shuuid be done Iu their abused
characiers, and their deparlmentshould bo I'o-
I'siablished firmly on its constitutional foun-
d.alion — th.at, if they resign now, those who
havo so long pprsecutod them, and assailed

their departinent, would thereby achieve the
object for which they have employed so many
unjust and unconstitutional means, and gain a
triumph, when they are signally defeated, and
their conduct condemned — that the unconsti
tutionality bf the re-organizing act must be
settled, and that any compromise would be
inadmissible, which should tacitly recognize
its validity — that a Govenior, who is a devoted
partizan, should not be trusted with the pow
er of filling, at this time, offices so important, to
the welfare of the country; but if a change be
desirable, the people alone should effect it, by'
a re-election of the appointing power, so that
the appointments may be wise and satisfacto-
to them, and so that no principle, moral or
constitutional, may be violated; that, contend
ing for principles, not men, those principles
must be established in such a manner that t]ie'
recurrence of another such attack upon thera,
as that which has long afflicted our country.,
will be discountenanced, before we could treat
for compromise; that we could not compromise
our constitution or oaths; that no lure of office
or threat of force should ever tempt or alarm us
to become recreant from the cause in whichwo
have all so much and so long suffered — and,
trampling down the constitution at the eve of
its triumph, divide the spoils of its subjuga
tion. If we had thus "compromised," then
indeed we might be called ambitious and faith
less. I'he proposition was moreover most un
equal — there was no reciprocity; we were
called on to give up every thing, and were of
fered nothing iu exchange; the "new judges"
have nothing to resign; and should we have
been invited to take on ourselves the responsi*
bility of purchasing, at so high a price, their
submission to your will? Their party had no
right to ask of us any sacrifice; all that was
necessary for peace, was that-they should ac
quiesce in your decision, on their own appeal.
By repealing thc act and submitting to you,
they would have surrendered nothing but ob-
stinac}'. There would have been no sacrifice
of principle. But if we had agreed to their
proposition, we should have given up all that
we had contended for, and all that you had de
cided. If they did not intend to submit to
your award, why make tho appeal? And 'when
will they submit? Nevir. Tlien from our
consciences and our doors be all the conse
quences of their resistance.
Their other propositions of compromise
were, with only slight variations of form, of
tho same cast, and liiible tu all the same ob
jections. That which was pressed most, was
that the Judges should resign, and the bench
in future be filled with six "new judges;"
and -nould you believe it — a part of the pro
posal was that the old judges should be three
of the six; Boyle, Chief Justice! Yes, fellow-
citizens, it is true it was proposed to us, if wo
would only give up the questioii, compromise
the constitution, and induce the judges, who
have grown grey in yo\ir service, to reign at
the bidding of "the Governor — that those three
,old men, whom they have denominated

TO THE FREEMEN OF KENTUCKY.

103

"Kings," might re-ascend tho throne, and by
his Excellency be crowned.
This is susceptible of no commentary; it
speaks volumes which have not until now
been unsealed. You see who are hunters <for
• office, and lovers of the people. Sanction
these things, and your constitution is not
worth preserving; its title may stand, but its
living spirit will be extinguished, and the
right of sufl'rage, freedom of conscience and
security of life, would all tremble on the inter
ested and capricious will of a favored few. To
prevent this catastrophe, the minority appealed
to you last winter; to avert it, you pressed to
the polls last August; and to warn you of its
approach, we now address you iu tones firm,
and in language bold as becomes the momen-
tons occasion.
, Desirous to terminate this unnatural and un
profitable warfare, we have done every thing
which our duty to principle and to you would
allow. We reiterated the proposition which
was made by the minority last winter, to save
the country from the mischiefs of the "midnight
act." It was then spurned; it is received no
better now. Nothing will satisfy the other
party short of a virtual acknowledgment of
t-hjeir right to remove thejudges of the appellate
court by a legislative act; and the admission
of the judges, that they are indebted to their
bounty for their offices. We then proposed,
as our ultimatum, that the Representatives,
Senators, Judges, Lieutenant Governor and
Governor, should^ all resign, as the only
mode of enabling you to settle all controversy
without obstruction or delay. The resolution
offered for this purpose passed the House of
Representatives by a vote of 75 to 16. But
the Governor, Lieutenant Governor, and their
party, who profess so much anxiety to quiet
the country; who are themselves the only ob
stacle, and. who boast of so much regard for
you and your rights, cannot consent that you
shall exercise this salutary and necessary pow
er. They are. apprehensive that you will err
and become distracted by commotion. Thus
you see that the patriots who are so solicitous
that the judges should resign, are unwilling to
set the good example, although requested by
an almost unanimous vote of your immediate
representatives. Yet, these men say that they
do not love office, that they are for the people
and the people's will, while they will neither
submit to that will, nor get out of the way,
that the people may elect those whom they
prefer, and who would do their will. Re
flect on this; hear the response of thejudges
to the Sen^^te's invitation to them to resign,
and then doubt longer, hesitate longer, if you
can. To dismiss the compromise — ^by analyz
ing all the propositions, you will see that the
basis of ours was the recognition, that the "old
judges" are in office; of theirs, that they are
out of office. The precise question you have
decided. Is this agony of the body politic
never to be "over?" Is there any inherent de
fect in our social or political organization?
Or whence this sad fate? Why does your gov
ernor in substance declare and declare again.

at the opening and at the close of our session,
that he will preserve peace by making war ?
Your guardians wrong you. It is time to es
cape from minority and assert the right of
manhood. All that is necessary, is that your
representatives shall tell you by their acts, not
by their speeches. — "Your will and not ours
be done." Then and not till then, we shall
have peace. Then our state may re-ascend
the proud eminence from which she has fallen?
Then we shall be once more brethren — Ken
tuckians; and then^the eye of philanthropy may
soon see, emerging from the flood of party fu
ry, the verdant summit bf that region, which
we hope is even yet destined to be the seat of
science, reason, justice, liberty and la'\v, in-
sepai'able companions.
But if, by acceding to any of the terms of
compromise which have been offered to us, we
had acknowledged (as we must have done)
that your "old judges" are not in office; if, by
thus uniting with the hostile party in forcing
your judges from the bench, in any mode not
permitted by your constitution ; if, by aiding
in imposing on you all the burthen and con
fusion of a "new court" of six judges, and al
so acknowledging, by requiring the old judges
to be reoommissioned, the constitutionality of
the "act" which you have decided to be uncon
stitutional — thereby sanctifying the means
employed so long to degrade your judiciary,
and subvert its constitutional independence,
and render it subservient to faction, and the
plaything of ambition; if, by thus surrender
ing, at the moment of success, all the sacred
principles for which you have been so long
contending, for the petty and unworthy pur
pose of elevating to the honors and the emolu
ments of appellate judges, three of those who
have denied the constitutional creation and in
violability of the Supreme Court, and thus
crown them with victory, and consecrate their
doctrines; if, by these means alone, we can
make peace — there can be NO PEACE. If
we had thus compromised your will and your
constitution, we might proclaim peace, peace,
but there would be no peace. Such a peace
would be the peace of death— the death of your
constitution — of the hopes which it inspires,
and the liberty which it secures. Your gov
ernment will never be guided by re ason, until
the head of your judiciary, placed firmly on the
eminence raised for it by the constitution,
shall be able to hold up JUSTICE to the rich
and the poor, and, as if planted on the isthmus
between conflicting elements, dispense her
impartial awards, unawed by the storms that
rage below, and unshaken by the waves that
break at its base. To secure this great ob
ject has been our only aim — this is our only
hope — and for our endeavors for success in
such a cause, we have been charged by the
organ of the opposing party, with "knavery
and hypocrisy." We shall not degrade our
selves or insult your dignity by retort. We
wish to bo judged by our deeds, and not by
our professions; and if our principles, and our
characters and conduct cannot repel such ac
cusations, give them your credence. One of

104

TO THE FREEMEN OF KENTUCKY.

us, now 80 years old, fought in the revolution
for his country's independence, and assisted
in convention to establish the two constitu
tions of Kentucky, to secure that indepen
dence. Is not this some little pledge of his
sincerity, and of the fidelity of those who are
associated with him in endeavoring to save the
constitution? When, did we ever attempt to violate the
charter of your rights? When did we ever
persecute distinguished and faithful officers,
to supplant them in office? When did we or
ganize plans for turning out of office your cir
cuit court judges, and clerks, <fec., to fill their
places with our friends, to whom we had
promised them? Let those whose consciences
are not reproached with these things, charge us
with ambition. We are ambitious, but our on
ly ambition is to exalt the character of our
state, and give quiet and security to her peo
ple; to inculcate habitual reverence for the
principles of rational liberty; to give security
to right, stability to justice, confidence to vir
tue; and as we hope to be immortal, the
highest aim of our ambition, in relation to our
selves, is to deserve well of our countiy, to
obtain the good opinion of the good and the
wise, and ensure the approbation of our own
consciences. Whatever may be the issue of
this controversy, we shall enjoy the consola
tion of having, throughout, done our duty
faithfully and honestly; and whatever others
may be prepared to do, as for ourselves, we
will defend the constitution, and cling to it as
the plank which, in the wreck of every thing
else, will save us and ours, in WAR as well as
in PEACE.
But this constitution is yours; you made it;
it is in your keeping. Do with it as you deem
best for j our welfare. But recollect, that it is
the best guardian of that liberty which is
your richest inheritance, and which it is your
duty to transmit unimpaired, to those who
shall come after you. Your judges, although
they have received no compensation during this
year, and expect to receive none during the
next, instructed by your votes, and by their
own sense of duty, will continue, without
longer suspension, to do your business, unless

overcome by the governor's army. Protect
them by your countenance, and all is safe.
You can LOOK DOWN all opposition.
Your voice can stay the paricidal arm, and re
deem your constitution from the fiery ordeal,
unhurt. Do your duty; stand to your integri
ty; do not be dra'wra from your ground; the
"new court" will soon expire for virant of
NOURISHMENT, and your constitution Will
resume its sway, and good old times will soon
return. But sufier yourselves to be alarmed
or wearied into inaction; allow your constitu
tion to be bartered away by your public
agents — compromise the sacred principles
which you have already consecrated, or leave
them unsettled — and| then you will have no
safety, no peace, no constitution. On you
hangs the fate of that constitution. Having
done all that we could do, we submit the is
sue to GOD and the PEOPLE.

G. Robertson,
James Allen,
S. H. Woodson,
Robert Taylor,
John Green,
Samuel Hanson,
H. C. Payne, .
S. Turner,
C. M. Cunningham,
James True, jr.,
J. R. Underwood,
R. J. Breckinridge,
M.P.Marshall,
J. W. Waddell,
John P. Gaines,
John Harvey, jr..
Z. Taylor,
James Ford,
Alexander Ried,
A. Dunlap,
T. Hanson,
J. J. Crittenden,
Silas Evans,
James Wilson,
G. Street,
John Logan,
Wm. Hutcheson, jr.,
Henry Timberlake,

John M. McConnell,
Richard Taylor,
James R. bkiles,
Alexander Bruce,
Samuel M. Brown,
John B. Duke,
Thomas C. Owings,
JohnH. Slaughter,
J. W. Bainbridge,
W. B. Blackburn,
R. B.New,
Alexander White,
Samuel Grundy,
John Cowan,
B. E. Watkins,
W. Gordon,
B. Hardin,
James Farmer,
John Yantis,
Daniel Breck,
David Bruton,
Jeremiah Cox,
Joel Owsley,
John Sterrett,
David Gibson,
Thomas James,
Daniel Mayes,
Cyiais Walker,

TO THE GOVERNOR ELECT OF KENTUCKY.

"A subject's faults, a, subject may proclaim,
A monarch's eirorsare forbidden game."
In presuming to address you iu the un-
courtfy style of a freeman, I Shall make no
apology, I shall not attempt to propitiate
your regard by flattering your vanity-, nor
shall 1 be deterred from my 'duty, by any false
notions of reverence for your official title. I
am a plain man, unacquainted with the adu
lation of courts. My speech is blunt, my
course direct.
In regal governments, the dogma, that ''a
king can do no wrong," is consecrated as a po-
'litieal axiom, and even as a tenet of religious
faith. The inviolability of the king''s person,
the infallibility of his judgment, and his legal
impunity, are the'clem'ents of his vast and
gothicpile of prerogative. Homage is the ex
acted iribute of every tongue: none are allow-
edto censure. Heis abdve 'the law. Public
opinion expends its force on the ministry. The
minister is made the scape goat of all the sins
of a bad administration. When the subject
feels the weight of oppression, he denoijnces
the minister, but his mouth is loyal to his king.
The galley slave, whilst he tugs at the-oar,
suffers no murmur against the cro'yn to eicape
hie lips— complaint would be high treason
against majesQf; and even whilst his heart is
bursting with anguish, his tongue mechaiiical-
ly ejaculates, "Gad save ihe King."
But you, sir, are nbt yet a king — nor am I,
thank God, your subject. You are tho respon
sible servant of a free people; I am one of those
people: and although one of the least worthy,
yet, as you will find, not the least i'REB.—
rhe pre-eminence of your station secures to
you no peculiar title to personal impunity.
It gives you no claim to infallibility. It can
neither make your he^rt more pure, nor your
head more wise. It is a high station, and full
of glory when well filled. Its incumbent may
be either a blessing or a curse to his cormtry.
When he is virtuous and intelligent — firm yet
wise — iilfiexible yet decent — When he is such
a man as a Governor ought to be, he is hon
ored — his administration is beniflcent, and his
country flourishes and is happy. But when
he prostitutes his patronage to selfish ends —
when, by abusing his trust, he relaxes the
law, and encourages vice, injnstic'a, and crime-
when, instead of being the ¦venerable and au
gust ' umpire betw ;en conflicting parties,
and the pure minister of executive justice, he
is the dupe and pander of a little, restless
faction—he blasts his country and his own
fame, and all his power, aided by the flattery
of all his expectants add parasites, cannot
14

stifle the voice of truth, nor stop his e^s against
its dread tidings. It is mighty, and will pre
vail. You may bribe the venal by promises
of preferment; you may instigate the vicious,
by the hope .of impunity;" you may alarm
the timid, bytheterrqrs of your authority ; but
a free and ^enlightened people will not always
submit to oppression. c
They are intelligent and wiU -fescape firom
delusion. Th6y are virtuous and will put
down vice. Your corrupt presses may groan '
with the falsehoods and slanders 'which they
publish weekly — through these sewers you
and your adherents may continue to throw off
your feculence on the pure characters of the
old soldiers of the revolution, and the most
virtuous men of th» age, but thc day of retri
bution will cnme. It will come speedily and
with vengeance. A free press 'will arraign you
before the bar of public opinion, and your
doom, which is now sealed, will be thera pro- '
claimed. The law is above you.. It can make a gov
ernor, as well as the mpst humble private cit
izen, feel its lash or its halter. Ypu may talk
of war and bloodshed — ^you may contemn the
people's voice, and deride their opinions, but
the time is not far distant when you will hear
and maj/ TREMBLE. Tou are responsible to
public opinion. You shall feel at least the
censorship of the press.
Do not be alarmed, sir. I am not about to
bocome your biographer, lly purpose js rhore
humble. I propose only to preserve a few
fragments,,as memorials of , your worth. I shall
not draw the minute traits, and give the char
acteristic tints to your portrait. I shall only
attempt to exhibit the "outline. Even this I
could not be induced to do, if ycu stood alone.
But in sketching you, I shall necessarily asso-
ate with you on the canvass, a group not en
tirely uninteresting to the people of K jntuoky.
Your office entitles ypu to peculiar notice.
You have identified your name with "re
lief" and "judge breaker." You are the osteri-
sible leader, though, aslkno*-, only tha "Au-
toinaton" of a desperate faction, whose aim is
despotic power, whose' means are licntious-
ness and anarchy, and the tendencies of whose
principles are a dissolution of the union, and a
destruction of all the ties of morality and jus
tice. In your patronage, this party Bve, move,
an d ha've their bein g. Your office is prostitn -
ted to their ends. You are their organ.—
Through you they speak and act. Therefore
it is p.oper to address you, when my obieet is
to expose the ambition a'«d counteract the de
signs of your party. In your image they will

106

TO The GOVERNOR ELECT OF KENTUCKY.

see their own .| f I address them through you as
their official impersonation.
In a series of, letters which I propose to ad
dress yoti, (not in a spirit of dedication,) I
shall take an occasional notice of your official
conduct: shall endeavor to expose the misrep
resentations and fallacies of your late messa
ges; and incidentally touch, as I go along, oth
er topics — such as the origin of the relief sys
tem — the character and motives of its projec
tors — the means employed to sustain it, &&.,
<tc. ' I shall attempt no method— my only aim
is truth — and that I will tell, whatevOrmay be
the conseqiiences. I shall deal with you plain
ly. I shall "naught extenuate, nor ,aught set
down in malice."
ily feelings. towards you are. not those of a
pri'vate enemy— I cherish such feelings towards
no human beingi Your con,4ucthas been such,
that I consider you a public enemy to the con
stitution, and I shall treat you as one. I shall
not intrude into your private concerns. I have
no private grievance to redress — itis my coun
try's wrongs of which I shall complain. I
have no jpersonal object. I have no hope — no
fears for myself. I desire no office; you have
none that 1 would accept. I am no landhold
er, stock-jobber, or money dealer. I owe no
money: there is very little due to me; I am not
rich; I inherited no fortune — my only legacy
was a sound constitution, and (as I trust) a
good conscience. I never had any agency in
making or borrowing from a bank. I was
born in Kentiicky, and here I wish to die. All
I ask of the gbVernment is security; all I de
sire of my fellow men is justice; I am no aris
tocrat — no patrician; I am the friend of equal
rights and equal laws; of industry, fidelity,
the inviolabilty of contrEtcts;of moral hon
esty and constitutional liberty. I am a repub
lican; poor, but not a bankrupt; the friend of
the honest poor and of the honest' rich; the
friendof religion and of law; ofprder and of
PEACE. I am, sir, (pardon the egotism) what
you ought to be, an honest man; and what
you affectto be, "THE PEOPLE'SFRIEND." A PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY.— No. ii.
"When the vittuoua are in authoriiy the pebple
rejoice; when the wicked bear rule the people
ntourn." The vices or virtues of an administration
are known by its fruits. Whenever distress
pervades any country; whenever vice predom
inates over virtue; whenever licentiousness
and crime wanton with impunity: whenever
the moral and industrious are discontented
with their lot, and alarmed for their security;
it isundoniable, that whoever may be at the
head of affairs, or whatever the form of gov
ernment, there is either some inherent defect
in the constitution, or somo perversion of its
principles by mal administration. Tho con-
atitutivn of Kentucky is acknowledged to be a

good one. It is inferior to that of no state in
the union. The people of Kentucky are intel
ligent; their soil is prolific, their climate pro
pitious: in all these particulars they are emi
nently blessed. Yet these people — so much fa
vored by a benificeut Heaven — so much signal
ized by their peculiar natural capacities — are
oppressed with debt; their currency deprecia
ted; their constitution disregarded; their laws
powerless; their lives and their property inse
cure; themselves driven to the verge of civil
war; industry deprived of its ihcentives and
despoiled of its rewards; fraud sanctified by
law; the improvident living on the provident;
the idle fattening on the sweat of the laboring;
dishonest bankruptcy considered honorable,
solvency cadminal; refusing to pay debts, a
badge of patriotism; attempting to exact pay
ment, called oppression; the punctual, laboring
-citizen, denominated aristocrat, toiy; the lazy
and dissolute, who live by fraud or stealth,
lauded as patriots, whigs, republicans; trav
elers murdered for their money, and no pun
ishment inflicted; citizens murdered weekly,
and no murderer hung; the'fines inflicted on
those who support "the powers that he," remit
ted; the honest alarmed ; the upright misera
ble; the state degraded. This is a faithful,
but very imperfect picture of the condition of
our country. Who so blind as not, to see the
causes of all these effects, in an unjust and un
constitutional administration of the govern
ment? Principles are abstract, politick liber
ty is .speculative; civil libei'ly is practical.
'The best form of government, corruptly and
foolishly administered, will be oppressive.
The English constitution under Charles II,
had attained more theoretic perfection than it
ever before possessed; but it 'lyas never practi
cally less free or more oppressive. This is at
tributable alone to the vices of the king and
his party. The constitution of Kentucky is the
oretically one of the best the.world ever saw;
and during your reign, no people were ever
more cursed with bad laws and obstructions
of justice, than we have been.
Is it not because we have in Kentucky a
Charles the II, and his "CABAL?" Charles
and his party were called "THE COURT
PARTY!" The patriots who opposed their
vices, their luxury and their perversions and
denials of justice, were called "THE COUN
TRY PARTY." The king's party were call
ed "the court party," because they were cour
tiers; because they were the adherents of tho
king. They exercised a corrupt influence
over the judges, and controlled the adminis
tration of justice. "The country party" were
so denominated, because they advocated the
independence of the judges and the purity of
judicial administration, and were opposed to
the king and his court. Your party in Ken
tucky is "the court party" — ^I, sir, belong to
"the country party." Your party advocate the
doctrines of "thc court pat^y" in England —
mine, those of "tho country, party." Your
party are the adherents of the executive, and-
the enemies of a pure and independent judi-
|Ciary; mine arc the advocates of the people,

TO THE GOVERNOR ELECT OF KENTUCKY.

107

their constitution, and their constitutional ju
diciary. Ypu call ypijrselves whigs! Your
principles are those of the old tories of Eng
land. You call us tories. Ours are the true
principles of genuine, old-fashioned whigism.
The whigs of England advocated the su
premacy of the constitutiou aud laws, and in
sisted on the judges being so far independent
as to be able to uphold theprinciples of magna
charta. The tories were the defenders of ' the
supremacy of the king over the judges, and of
the dependence of judges on his will. Such
were_ the whigs and tories, court party and
countiy party in England, and such they are
in Kentucky.
You may steal the title of whigs, you may
arrogate that of country party, and you may
attribute to us what you will, but you cannot
disguise the counterfeit; you cannot alter the
essence of things. Yours are tory principles,
your policy that of the court party of Charles
the II, and you ought not to repudiate the
name. You and your "cabal" have brought
distress aud disgrace on your country. The
'Vice is yours and theirs, and not that of the
greatbody of the people, or of their constitu
tion. Had a more wise and upright man
been at the helm of our affairs, we should now
be blessed with "peace and plenty;" we should
be one people, and g. cheerful, moral, happy
people. But it has been our hard fate to oe
under your sway; and your pestiferous princi
ples have scattered discord and vice over the
land, hike the ti'ee of Java, your official
breath is pestilence, and moral desolation sur-
rouidsyou. Yon have had the power to do in
finite good; you have done irreparable mis
chief. Youmight have been the father pf the
people and been blessed; you have been their
worst enemy, and may be cursed.
Accident made you Governor; your temper
has made you an active and frantic partizan.
You have endeavored to intimidate the judi
ciary, and have persecuted its friends; you
have endeavored to prostitute the judgment
seat to factious interests; you have treated as
enemies those who did not assist to make
you Grovemor. Yon have appointed to office,
men notoriously unfit and incapable. By an
abuse and perversion of your pardoning pre
rogative, you have frustrated the ends of pub
lic justice, and encouraged disorder and
crime. You have menaced war against the
people for not submitting as "faithful subjects"
to your will. You have denied justice, by ob
structing the courts. You have endeavpred to
alienate the affections of the people from the
general government, and disaffect them with
the principles of the Union. You have em
ployed your patronage to influence elections.
You have made frequent and direct attempts
to influence legislation. You have virtually
denied the people the right of self-government,
unless they do as you do, and think as you
think. ' All this, and much more, have you
and your "cabal" done and tried to do. |Your
object is self-aggrandizement. "RELIEF,"
"OFFICE," "MONEY," these are yourwatch-
words.

Those who are unwilling to live by honest
industry must live on the people's money;
they must have offices, or rather pensions. —
Those who have acquired splendid fortunes on
credit, must live on the pr<q)erty and labor of
other men; and the honest man who dares to
think that the property should be enjoyed by
those to whom it justly belongs, is called a
"3hylock," an "aristocrat." Are these things
right? Do you expect by such means to exdt
yourself, or the state over which you rule?
No,, sir, no. You knoyr you cah d.o neiiiier.
Justice is the attribute of God, and shall, be
respected? No government ever long flour
ished, whose policy was not dictated py jus
tice. No community can prosper, which loves
not justice. No man can ever enjoy honeal
fame who does not do justice and revere its
precepts. The government whose maxim is
justice, is loved by its friends and respected by
its foes. The magistrate who- is jnst, like
Aristides or Cato, is revered and canonized.
But the public functionary who sports with
justice, or prostitutes its ministry to the unhal
lowed purpose of his own or his party's advan
tage, is the scourge of society and the enemy of
mankind. A man may be celebrated either for his wis
dom or his I'oUy, his virtues or his faults. It
will be your destiny to be very famous. You
will long be reiaemoered. Your name has al
ready acquired very extensive notoriety.
In other states, and even iere, your name
has been signalized by aasociafipns with such
execrable principles and unfortunate incidents,
as to become synonimous with almost any
thing that is^ 'wrong' or reproachful. You
cannot be ignorant, srr, of this fact.
This has all grown out of the events^ of your
eventful administration. Your party* will be
theburtheaof many a future legend, the theme
of a long-lived and gan'ulous tradition. In
spite of you, it will go down to posterity. You
are denied the consolations of oblivion. The
official eminence to ¦which you have crawled,
denies you the refuge of obscurity. Your
character is impressed indellibly on the face,
and will be imprinted conspicuously on the
history of Kentucky. Erostratus burnt the
temple of Ephesus, and has emblazoned hiu
name in the lightofthe conflagration. Nero's
is written with the blood of the Romans whom
he slaughtered, and is as immortal as the re
cords of his criines. Yours will bemore hum
ble, but not less memorably advertised; it will
be inscribed On the broken columns of Ken
tucky's fame, associated with "relief laws!"
' judge-breakers'" and— ^  -—.If your of
ficial portrait shall never be delineated by tho
pencil of a Titian, or the chisel of a Phidia.s —
nevertheless, in the wasted strength of your
state,, in her violated constitution, in the tri
umphs of vice and injustice which mark your
executive career, abundant materials will be
furnished to give to the page of history the im
press of your likeness. Out of the ruins of
your country's peace and your country's honor
wiU, rise your fame. Like the Pyramids of
Egypt, its base will be broad; its altitude tow-

108

TO THE GOVERNOR ELECT OF KENTUCKY.

enng. In a moral desert, without one green
spot in the cheerless waste around, without one
ray of intellectual light to irradiate tho sur
rounding gloom of midnight darkness, will
standthe monument of your administration.
It will stand isolated and lonely. Your
"WHIGS" may kneel around it and pour out
their benisons, by anticipation ; for such will
be the mausoleum of your "COURT PARTY."
Your administration forms a new era in the
affairs of men. It is replete with incidents —
but whit are they? Where will posterity find
the memorials of the wisdom, or benevoleiice,
or patriotism! of the Governor and his "court
party?'' What good law, what public work,
What vestige of wise policy ¦will illustrate their
memorable reign? Alas! nothing will be visi
ble but the scars which you have inflicted on
the constitution.
What a contrast will your administratioii
present to the proud days of our Scotts and
bhelbys? Oh, Kentucky! how hast thou
fallen! I shell not speak treason. Truth is poignant;
but cut whom it may," it must come. When I
see th' prostrate condition of my state; when I
see her despoiled of her fame and robbed of
her peace, by you and your party, I cannot
repress the tide of my indignation. To state
'was ever in a more deplorable or perilous pre
dicament; none ever so much abused by her
rulers. I should consider longer silence crimi
nal. No good citizen can now be neutral.
Each should act as if his country's fate were
suspended on the issue of his single efforts.
We have suffered much and long.. We can
endure no more. We have given your experi
ments a fair and patient trial. They are em-
pyrical. They will riiin us. They have
brought us to a crisis which is pregnant
with the destiny of our state and the prospects
of pur posterity. There must be no evasion.
There -an be no COMPROMISE. Moral or
physical force, industry or idleness, justice or
licentiousness, the constitution or your will
must triumph; and with the success of the one
or the other, your party or mine must sink to
rise no more. A PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY— No. m.
"Our WISDOM formed a government and
committed it to our VIRTUE to keep; but our
PASSIONS hape engrossed it and armed our
VICES to maintain the USURPATION."
Kentucky, conspious ofher worth, once stood
erect and pre-eminent in the Union; she is now
bowed down. She was proud, because she
was great. She was honored, because she was
brave, wise, and just. Her government was
then the reflected image of her people. Her
rulers were wise, and just, and patriotic men;
they governed according to her constitution,
and the people were free and highly distin
guished. It was the most siga^ honor to be

called "Kentuckian;" but now this title is, by
many, when they are abroad, concealed, as a
reproach. "How lias ihe mighty fallen!"
Kentuckians areyet brave; they are yet in
tellectual; they areyet disposed to be just; and
it rejoices me to believe that, ere long, they
will prove it. The character of a people is
identified with that of their rulers. The rulers
of our state, for a series of years, have not been
men "fearing God and hating covetousness."
They have governed by e?:pedients, and notby
principles. They have addressed the .pas
sions, and not the reason of the people. '
From the reign of a party thus created, and
of which you dre now the titiilar head, our
misfortunes have sprung. This js demonstra
ble; and it will not 'be long when no dbe will
doubt or deny it. You have invented a new
kind of sovereignty — ^the sovereignty of the pas
sions. You have discovered a new kind of
iiherty — the liberty of nature, not of sodfety ; of
the savage, not of the civilized mail. The lib
erty which our fathers fought for, was the, lib
erty of doing right, not of doing wrong; of do
ing what We ought to do, not what we will to
do( the liberty of security, not of anarchy.
They gave us their precepts; they, gave ' us a
constitution, to guide us in difficulty and dis
tress. But you are wiser than they. You
have discovered that men need no government
— BO restraints of constitution or law'. You
have yielded to passion hat supremacywHich
belongs alone to reason. You have ' given
dominion to those tempers and impulses of our
nature which government is instituted alone to
control. You have discarded as tyrannical,
those principles which the experience of ages
has proven to be the ordy sm-e safeguards of
social order and individual securitv. You
have been endeavoring to prove that men are
not bound by any political Compact, and can
be governed best witliout any constitution.
Hence, you have given development and effect
to the worst passions, and have not suffered
the moral energies of the state to display them
selves, and, consequently, the people have suf
fered all the horrors of discord and violence,
and their character has been sunk below its
just rank.
To explore all the meanderings, and expose
all the errors of your party, since they have
had sway, would be an Herculean task, which
I have neither time nor inclination to attempt.
I shall not attempt to cleanse your "AUGEAN
stable;'' but the people will do it. Although
the principles of your faction have been pesti
lent and demoralizing, yet I am sure the people
have intelligence and virtue sufficient for the
-renovation of both themoral and political con
stitutions of Kentucky. If I am in this mis
taken, then I despair of the commonwealth.
To contribute to the rectification of your er
rors, aud to the restoration of the body politic
to its natural and healthful, tone, is my only
object; and if 1 shall iu any degree succeed, 1
shall have fulfilled my expectations.
, I^ know that it is difficult to reason with
prejudice or combat interest, and that inveter
ate error is almost invincible, a

TO THE GOVERNOR ELECT OF KENTUCKY.

109

The long success of your party is a political
phenomenon never before witnessed in any
civilized age of the world. In defiance of all
the lessons of experience; in opposition to all
the maxims of political philosophy; in coii-
tempt of the suggestions of justice and the
forecast of wisdom; you have gone on, step by
step, in your career of experiment, until, em
boldened by astonishing success, you light the
torch of civil war, and open your batteries
against, the constitution of your country. In
the initiative efforts of "relief,"' you were more
timid and temporizing; you then awakened
the hopes of the debtor, and cajoled tho cred
itor; you masked your designs, and promised
that your expedients should cease with the
emergency, to which you appealed for their
justification. None hoped, no one feared that
your system could be pushed to the extremi
ty to which it has been forced. Even those
who were most opposed to its inception^ and
predicted that it would be delusive and mis
chievous, did not foresee that, in its baneful
progress, it wovild blight whatever is most sa
cred among freemen, and at last, after ruaking
you a Governor, dare to crown its triumphs on
the ruins of the constitution.
When the infatuation which has accompanied
and sustained your system, shall subside into
the sobriety of calih' reflection, and reason
shall once more govern the opinions and actions
of men, the long duration of the paper mania,
' and' the 'W.onderful success of the paper faction
in Kentucky, will be looked upon with univer
sal astonishment and regi-st.
- Your party has been buoyed up by extraor
dinary exertions; and unworthy and insidious
OTtifice.' The unholy ambition of its, leaders
has been equalled only by the seiwile devotion
and' inexplicable delusion of their followers.
The design of the leaders was POWER-; and
they have cloaked their selfish ends under the
disguises of charity and patriotism. They
have played on the worst passions of our na
ture, and have not failed to invoke to co-opera
tion or forbearance the best sensibilities of
good men. To the honest debtor they prom
ised indidgence, and better times; to the fraud
ulent and improvident, they tendered the
means of avoiding payment; to the extrava
gant, they offered facilities of enjoyment; to
the lazy, they secured rest; to the cunning,
they surrendered the ignorant as victims; they
encouraged treachei'y by impunity, and fraud
by legalizing'itsspollations on, innocence and
industry; and, thus they raliied around their
standard the unproductive members of society,
and gave up justice to' passion.
By other means, they enlisted the actiye
support of many good men, and secured the
acquiescence of some who were wise and just.
To 'Siiajh as these they, exhibited false colors,
and by artful stratagems, concealed their ob^
jects and the tendencies of their policy. To
the benevolent, they exhibited moving scenes
of misfortune; to the generous, pecuniary dis
tress; to the merciful, the blessings of-charity;
to the chivalrous, fictitious oppression; to all,
delusive hopes and expectations; and thus, '

au unnatural union of the worst and some of
the best elements of society, they havo beeu
abletoigo on and triumph, until they view as
traitors those who oppose them.
Political quacks, like medical quacks, are
apt, for a season, to succeed in passing off igno
rance for wisdom, and vociferation for Ifearn-
ing. With the greatest confidence and self-
complacency, they amuse the fancy and sport
with the credulity of an honest community.
And never did quackery of any kind make
such wonderful achievements as yours and
that of your political doctors, during the
last five years, in learning men to live without
industi^y, to thri-y^e without ''economy, to be
happy without virtue, to discharge debts with
out paying them, to make fortunes without la
bor, to commit crimes without fear, and live
free without law. You have a nostrum for
every disease. "Relief has been your PA
NACEA. This your empirics averred.to be a
sovereign remedy for every complaint'. It
opens the eyps of the blind, unstops the ears of
the deaf, transforins old federalists into new
democrats, and old tories into modern whigs.
It can make fools wise men, knaves hOneSt, rich
men poor, and poor men rich. It can make
great judges without knowledge of law, and
great politicians without any knowledge at all-
With this magical specific, this concoction of
delay laws and depreciated paper money, ypu
haye literally, drenched the people to satiety,
until those who have not the stomachs of dogs,
and the constitutions of mules, are beginning to
natiseate. Sir, you will kill more than you will cure.
The doctor may thrive, .but the patient must
die. She exhibits even now every indication of
decline and speedy dissolution, You have
dosed her until she is lean and exhausted; her
system has lost its healthy tone, and its whole
action is morbid. MERCY alone can save her;
ABSTINENCE and the "CONSTITUTION
AL" Tonic will alone restore her to health and
vigor.
. Your prescriptions have brought Kentucky
to the brink of the grave. The health which
once flushed her cheek is gone. The moral
tone which once g%ve her such expression and
animation, is almost exhausted. The' very
blood of life is ceasing to circulate. , , You must
desist. Her constitution, although much
shaken, is not destroyed. It, is recuperative.
Lot it alone, and tho "vis medicatrix naturce"
will restore it, until Kentucky is herself again.
Let her alone, and she will revive, and her
prospects will revive.
The course of your party has been selfish,
unjust, and disingenious. By the party I
mean only the head men. You made replevin
laws which you intended only for the benefit
of yourselves . You knew they would not ben
efit the poor and, honest debtor. You, knew
that none would enjoy their advantages but the
crafty and dishonest, and rich bankrupts. 1
say rich bankrupts, for such "gentlemen" we
all know we have among us. ,
You made, paper money, which' you knew
by Iwould stok in valuer and answer no just or

110

TO THE GOVBRNOB ELECT OP KENTUCKY.

honest purpose. It was your interest to de
preciate! it, and you did it. To enable a few
of yourselves to live on fortunes purchased on
credit, or on mpney borrowed from banks or
individuals, and thus ruin many families dis
posed only to live honestly, you abolished
' the ca. sa. The effects have been what were
intended. There are many {they are all "whigs")
who, by their credit, had accumulated vast es
tates, and exeihpt from all coercion, have re
fused to pay oiie cent to those to whom their
property justly belongs; but enriched by their
poverty, treat them with scorn and derision. —
Even the wantbn and malevolent are licensed
to commit their' depredations on property, and
persons and character with impunity. A scoun
drel may bum your house, shoot your horses
or slander your daughters, and relief laws al
low you no reparation, unless he chooses to
give it. This is "liberty" with a vengeance.
The entire loss of depreciation in your pa
per, has fallen on honest industry — and thereby
shavers and money jobbers have made for
tunes. The poor have become poorer — the
rich richer. And whilst industry has been re
laxed by insecurity and unproductiveness of
its rewards, keen-eyed speculation has preyed
on the necessities of the unfortunate, and de
spoiled the ignorant and unwary. The com
mon country people have been compelled to
pay their debts: and relief laws, instead of fa
cilitating payments, have only rendered tjiem
more difficult and oppressive. But the "rich
bankrupt" has lived m splendor and security
on the spoliations which your laws encourage
by legalizing. You have made it the interest
of men to violate their most solemn contracts,
and live by fraud. Man has lost confidence
in his fellow man; internal commerce is stag
nant; foreign trade unequal and unproductive,
agriculture despondent, virtue proscribed, pa
triotism in despair. To doubt the skill of re
lief doctors is heresy; to question their recti
tude, aristocratic; to resist their prescriptions,
usurpation; none are republican who do not
think as they think, and act as they act; none
free who are controlled by the obligations of
law or conscience; to compel men to doright is
tyranny — to allow them to do whatever inter
est or passion prompts is "Liberty!"
Here you see some of the fruits of your
blessed system — ^licentiousness and anarchy
reigning, reason dethroned, conscience stifled,
industry and economy laughed out of coun
tenance, old-fashioned republican virtue and
simplicity spumed, the constitution mocked,
and your will substituted in its place. "Passion
has indeed engrossed the government, and
armed our vices to maintain the usurpation."
If it had been agreed about five years past
to pay the debts of a fewmen whom you know,
and allow another large connection whom you
also know, and to whom I shall hereafter al
lude again, to keep about $100,000 which they
owed, we never should have been afflicted
with your relief laws. I thought then, and
now I know, that by paying or wiping off the
debts of those men, and consenting that a few
more lihould have offices, we should have made

a good bargain. If we had done this, you
would have left others (as indeed after el!
your noise, you have done) to shift for them
selves and work out their ownj salvation.
Then we should have gone on as other st&tea
have done. - Like them, we should now be
prosperous, rich, and happy; our character un
sullied, our currency abundant and good, our
liberties secure and our constitutiou unmaitned.
If your relief system had been intended as
you pretended that it was, for those who most
needed and best deserved its aid — ^the unfor
tunate and honest — ^then its enoi'mities would
have found some palliation in the plea of hu
manity. But it was intended for nch "bank-
mpts" and broken down politicians, and they
have indeed been relieved.
You have been relieved, sir. The paper sys
tem has made you a Governor, who have not
one quality, moral or intellectual, to entitle you
to so distinguised a trust. It has made njany
other men great, who, ¦without its influence,
would have enjoyed the blessedness of obscu
rity forever.
It has made many honest men poor, and
many mean men rich. It has robbed labor of
its earnings, and given splendor and wealth to
profligacy. These things we all know, ^d
therefore details will be -omitted.
What other relief has your system adminis'
tered? None, I say; and the people -will all
say so too, before they are relieved of your "re
lief." The aggregate debt of the state is not
diminished. It is only transferred. There
may not be as maiiy large debts, but there are
more small ones, "rhe "big men" have stepped
out, and the common men must now shift for
themselves. How are the debts due your bank to be paid?
How are your debtors to be relieved? You
have seduced most of them to incur the debts
which they now owe! WiU you enable them
to pay them? No, it is too late. Those for
whom relief laws were passed, are relieved;
and all others must get relief as ihey can.
The crisis of difficulty and distress is now
just approaching. You have administered
anodynes; but the disease is not eradicated; it
is aggravated. Relief is more necessary now
than ever it was. The paper system is wind
ing up. It must cease; and con'vulsion must
follow. Then, and not till then, you and your
party will be justly appreciated. Then all
will agree that the relief system was aristocrat
ic, unjust and ruinous. Then will they ascer
tain that honesty is the best policy — ^that the
only remedy for hard times is Dr. Franklin's
remedy — industry and economy; to buy less
and sell more; to avoid credit, and reduce the
expenditure within the income. The people
who live in conformity to these plain maxima
will never want relief. I'hey will prosper.
Thosewho disregard them, and repose on poli
ticians for relief, will, never prosper; and all
the relief laws that all the relief men in the
world could enact will not avail. You may
as well expect to make men happy without
virtue, as rich without industry and frugality.

TO THE GOVERNOR ELBOT OP KEBTTUOKY.

in

You cannot reverse the decrees of Heaven.
Deity had united happiness with virtue, and
wealth with labor. A community is an aggre
gation of individuals, and whatever contrib
utes to the welfare of the individuals, advances
that of the state. We wiU learn wisdom by
experience, and profit by affliction. In the
circumvolution of human affairs, your party
¦win give placfc to wiser and better statesmen;
and flien our state 'will begin to look up, and
the people to smile with peace and plenty.
A PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY— No. IV.
"The laws of a countiy ought 1iO be the
standard of equity, and calculated to impress
on the minds of the people the moral as well
as the legal obligations of reciprocal justice.
But tender laws of any kind operate to destroy
morality, and to dissolve, by the pretence of
law, what ought to be the 'principle of law to
support — reciprocal justice between man and
man; aBd the punishment of a member who
would move.for such a law ought to be death."
Tom Paine.
All attempts to make money out of paper
have been abortive and mischievous. The
German expressed a volume of experience,
when he said, "money is money, and paper is pa
per." Paper may be sometimes a convenient
and useful representative of money, but it can
nev« be more than the effigy; and when it does
not represent a metallic fund into which it may
be instantly and certainly converted, it is a
fraud on inau|try and a nuisance to society.
The paper of Kentucky has not even the sem
blance of money. Itrepr^ents nothing except
the supposed credit of the state. This is too
indeterminate and intangible to give it the
quality of the value of money. If thepeople
of the United States had not been severely af
flicted witji a paper mania, during and suc
ceeding "the revolution," there' might be some
excuse for the paper system of Kentucky. Pa
per money had been proscribed, by the political
economist/, the citizen and the philanthropist.
It will ever be deleterious.
Had you and your party forgpttcn the senti
ments of American statesmen and patriots on
this subject? - Had you forgotten the history of
paper money? Allow me to offer you Some
short extracts from an essay on this spurious
currency, by one who, although he was an infi
del in religion, was one of the revolutionary
oracles in politics; whose pen was supposed to
have done more for American liberty than the
sword of any warrior, and who was supposed
to have written what Franklin assisted in dic
tating. This man is no other than "Tom
Paine." I give you the following: "One of the
evils of the paper cuirency is, that it turns the
whole country into stock-jobbers. Theprefcari-
ousness of its value and certainty of its fate,
continue to operate, night and da^, to produee
this desiructive effect. Having no real value

in itself, it depends for support upon accident,
caprice, and party; and as it is the interest of
some to depreciate, and of others to raise its
value, there is a continual invention going on,
that destroys the morals of the country. It
was horrid to see, and hurtful to recollect, how
loose the principles of justice were let by
means of the paper emissions during the war.
The experience then had, should be a warn
ing to any assembly how they venture to open
such a dangerous door again." "There are a
set of men who go about making purchases
upon credit, and buying estates they have not
wherewithal to pay for; and having done this,
their next step is to fill the newspapers with
paragraphs of the scarcity of money and the
necessity of a paper emission; then to have it
made a legal tender, in pretence of supporting
its credit; and when out, to depreciate it as fast
as they can, get a deal of it for a little price,
and cheat their creditors; and this is the con
cise history of paper money schemes." "As to
the assumed authority of any assembly, in
making paper money a legal tender, or in other
language, a cOMPULsrvE payment, it is a. most
presumptuous attempt at arbitrary power.
There can be no such power in a republican
government; the people have no freedom, and
property no security, where this practice can
be acted; ahd the committee who shall bring
iu a report for this purpose, or the member
who moves for it, merits impeachment, and
may, sooner or later, expect!" "It was the is
suing of base coin and establishing it as a ten
der, that was one ef the principal means^of
fiaally overthrowing the power of the Stuart
family in Ireland."
Such was paper money in , former times —
such will it be m all times. The same causes
must produce the same effects. The wise men
who adopted the federal constitution, intend
ed to put it out of the power of visionary or
bad men, ever to visit the people 'with the de
vastations of a depreciated paper currency.
They had seen and felt what we have seen and
now feel, And you have their sentiments, in
PART, in the foregoing extracts. Then it was
patriotic to hate paper money and its project
ors — now it is treason not to defend the one
and idolize the other.
Your relief system has achieved just what
migit have been expected, and what it was in
tended to effect. It has revolutionized the
state; it has ruined creditors; it has injured
the honest debtors; it has enriched the fraudu
lent, ahd made small men great; it has made
you a Governor, and John Rowan a Senator^
Great and magical must be the engine which
can achieve such wonderful results.
In ypur bold career, the constitution was no
obstacle. "That is only ^laper" the breath of
the people made; "the legislature can destroy
it." But you met with a stumbling block in
the judiciary. The judges of the court of ap
peals had some conscience, and they refused
to co-operate with you in your work of injus
tice, and confusion, and constitution breaking.
They then became tyrants and kings, and
taust be put out of your way, or the people

112

TO THE GOVBRNOR ELECT OP KENTUCKY.

would be enslaved! To consummate your
schemes of LEGISLATIVE SUPREMACY,
you violated the constitution and convulsed
the country. You have said that the "Omnip
otence of parliament" is freedom. Mr. Jeffer
son has said that it is despotism, and the De
claration of Independence proclaims it tvban-
NT. You say, that servile, dependent judges, are
essential to the liberty of the people. Th
whigs of England and the whigs of America
have said, that no people can be free without a
pure and independent judiciary.
You say that honest judges are dangerous.
Mr. Madison, and the wisest American states
men tell you, the legislative department is that
from which the people may apprehend danger,
and against which they should exhaust all
their vigilance and all their precaution.
Thc sovereign power is lodged in Kentucky,
where it ought to be, in the body of the peo
ple. They are all equal in rights, and may. be
so in power. The great paramount law of a
republic is the public good. The law of a des
pot is his WILL. And that government is a
despotism in which the 'will of the sovereign
is the supreme law, whether that sovereign be
a king or a parliament. Will you pardon me
for obtruding upon your attention another ex
tract from Tom Paine? It is as follows:
"The administration of a republic issup-
posed to be directed by certain fundamental
principles of right and justice, from which
there cannot be any deviation." "Tho foun
dation principle of 'public good' is justice
and wherever justice is impartially adminis-
tored, the public good is promoted, for it is to
the good of every man, that no injustice is done
to him, BO likewise it is to his good, that the
principle which secures him should not be vio
lated in tho person of another, because such a
violation weakens his, security, and leaves to
chance what ought to be to him a rock to stand
on"— "the' people renounce not only the des
potic form, but the despotic principle, of be
ing governed by will and pqwer; and substitute
a government of justice" — ^"they renounce, as
detestable, the power of exercising any species
of despotism over each other,, or of doing a
thing not right in itself, because a majority
may ,have strength sufficient to accomplish
it;" "in this lies the foundation of the repub
lic; and the security of the rich and consola
tion of the poor, is that what each man has is
his own; that no despotic sovereign can take it
from him, and that the common cementing
principle which holds all the party of a repub
lic together, secures him likewise from the,
despotism of numbers; for despotism may be
more effectually acted by many over a few,
than by one over all."
This is the language, not of Paine only, but
of Ihe patriots of the, "times that tried men's
souls." Sir, to bo free, nien must.govern, and
be governed, by principles settled liy the mu
tual consent of the people. They must be
governed by a ObMSTlTUTION. Thewrit-
ten constitution is the compact between them,
to which each looks for security. Why do

men enter into such a covenant? It is because ,
without it the ¦freak may be oppressed 'by the
strong — the few overrun by the many. .If the,
many have the right, notwithstanding this
compact, to do as they please, what is effected
by the compact?' Nothing, except delu<-.
sion. It exhibits the shadow of freedom,
whilst the substance is ^one, and although
there is a constitution, the government is- me
worst of all despotisms; se say all ¦Wise and
good men.
The will of the sovereign, you say, is liberty.
I say it is tyranny. You say that the will of
the legislature is the supreme law. I say that
the con.,titution is the supreme law. This
constitution prescribes the landmarks of liber
ty, and whenever these are transcended by the
legislature, or a majority of the people,, the
weak and the poor have' no refuge fTom injiis
tice but in insurrection.
Your relief system has bfiou marked ¦with
many outrages on the principles of republican
government. The doctrines which sustain it
are subversive of every principle of cqnstitu-
tional security; they are the doctrines' of dosr
potism, and a despotism the more to be detest
ed, because it is disguised in the garb,- of re
publicanism. "Hypocrisy is the homage
which vice pays to virtue." Your whole sys
tem has been full of duplicity; it has been re
plete with aristocracy; it has turned Kentucky
politics "wrong-side out. John Rowan and
Joseph Desha are now the leaders of the
"whigs!" and Isaac Shelby and Richard Tay
lor head the column of "tories!" By such
profanation of the sacred principles, of "16,
your system is kept in being. It changes the
names and very essence of things It has
made old federalists excellent republicans, and
the old republicans federalists. It has united
the most discordant elements, and brought to
gether, the most opposite extrehie of former po
litical opinions. Men who have ever been
virulent enemies, and now agree on no other
subject, act in cordial concert, with a. vigor
that could not be exceeded if their eternal sal
vation were at stake.-
Who could have believed, five yeara ago,
that John Rowan, George M. Bibb, William T.
Barry, Sam. Davis and Joseph Desha would
ever be cordial personal friends, and belong to
the same political school? Yet such we know
to be historic fact; and we know, too, that they
call themselves republicans! yes, all of them,
good republicans!
This is most impudent and sacrilegious.
But still, relief men profess to believe it all,
and look to these oracles for precepts of de-
mpcracy ! From such democracy may the , God
of Abraham, and of Isaac, and of Jaoqb, deliver
outraged and deluded Kentucky. John Row
an and Samuel Davis, of "alien and sedition
law" memory, and^ their company of political
managers, greeted as the apostles of republican
ism! as whigs!! And the patriarchs of the po
litical church — its Shelbys, its Taylors, its
Bowlnans, heroes of all our wars, founders of
our liberty — the whigs of '76, the republicans
of '98 — these venerable patriots are ifen'ounced

TO THE GOVERNOR ELECT OF KENTUCKY.

113

as tories, aristocrats, federalists! Such are
some of the achievements of relief, and such the
infatuation which attends its career. Well
might Jefferson have predicted that federalism
would supplant democracy, by stealiiig its
garb. Where ai'o, the principles of '76? Are
they entombed with the ,sages who consecrated
them by their wisdom, and the heroes who
sealed them witli their blood? Have we, their
sous, so far degenerated in virtue as to despise
those principles, or in intelligence, as not to
understand them? If so, liberty is a phan
tom — free government an Utopia. Recent
events in our state are alarming. .Either the
Declaration of Independence is not true, or
these things must be the products of chance or
mystery, and will notlast.
You have amused the people with your new
expedients; you have tempted their cupidity;
you have played on their hopes; you have de
claimed in indefinite terms about liberty,
equality, supremacy of the people, the tyranny
of judges, &c., while your principles are the
opposite of your profession, as your acts and
their fruits will prove. These have been the
means by which all unworthy men have ac
quired power. Pisistrates preached liberty
and equality — was the frieiiu of the poor — de
nounced Solon, and other patriots aud sages
who were in his way, as enemies of the peo
ple — their vanity was flattered, and their cre
dulity yielded — and their countiy was subju
gated to despotism. So acted Julius Ciesar
and Oliver Crumwell, and Robespiere and his
Jacobin club, and so have done the Governor
and his "c.\bal."
Your conduct is not without example. History
famishes many such cases as yours. AU ambi
tious men, whose merit will not sustain their
pretensions, have reached the confidence of the
people by the same avenues, and rewarded it
with the'like treachery. Read the following
extract from an able work on the causes of the
downfall of the ancient republics:
"As the lust of domination can never attain
its end without the assistance of others, the
man who is actuated by that destructive pas
sion, must of necessity stiiveto attach to him
self a set of men of similar priuciples, for the
subordinate instruments. This is the origin
of nil those iniquitous combinations we call
faction. To accomplish this, he must put on
as many shapes as Proteus; he must ever wear
the mask of dissimulation, and live a perpetual
lie. He will court tlie friendsliip of every man
wliois capable of promoting, and endeavor to
crush every man who is capable of defeating',
liis ambitious views."
"The man who aims at being thc head of a
faction, for the ond of domination, will at first
cloak his real design under, an affected zeal
for the service of the government. When he
has established himself in poAver, and formed
his party, all who support his measures will
bo rewarded as his friends, ,ill who oppose
him will be treated as en«mies to the govern
ment. The honest and uncoiTupt citizen will
be hunted down as disaffected; and all hi=> re-
15

monstrances against maladministratioii will
be represented as proceeding from that prin
ciple." "The faction will estimate the worth
of their loader, not by his services to his coun
try, for the good of the public will be looked
upon as obsolete and chimerical; but his abili
ty to gratify and screen his friends, and crush
his opponents. The leader will fix implic-
plicit obedience to his will as the test of merit
to his faction; consequently all the dignities
and lucrative pests will be conferred upon
persons of that stamp only, whilst honesty and
public virtue will be standing marks of politi
cal reprobation. Common justice will be de
nied to the latter, whilst the laws will be
strained or overruled in favor of the foi'mer."
How perfectly descriptive is tho foregoing of
your faction? If it had been prophetic, it
could not fit you better than it does. It was
the language of experience. It is a portrait
drawn by a master, from all the history of the
world, it represented the demagogues who
have, from time immemorial, deceived the peo
ple and ruined them; and it will represent all
such vermino as long as human nature shall be
depraved. All republics have gone the same
broad road to ruin- And whenever the resem
blance of the foregoing picture is seen in any
combination of men, under any mask, it may
be known for a certainty, that that party is
leading their country to the precipice.
When I call your party a faction, 1 wish not
to be misunderstood, and mean not to be mis
represented. That it is a faction, a desperate
faction, its acts prove, when compared with
the following approved definition of faction :
"By a faction I mean a nmnber of citizens,
whether amounting to a majority or minority
of the whole, who are united and actuated by
some common impulse of passion, or of inter
est, adverse to the rights of other citizens, or
to the permanent and aggregate interests of
the community." Publius.
All who belong to your party are not ani
mated by factious motives; many are allowed
to be honest. They are deluded by the wily
artifices of the leaders; but still they ore a fac
tion, "a paper faction." Pardon me for obtrud
ing on your notice, from the pen of another
wise man, a sketch of the delusion and desper
ation of "a paper faction."
"In spite of national beggary, paper money
h.as still its advocates, and probably, of late,
its martyrs. In defiance of demonstration,
knaves -will continue to proselyte fools, and
keep a paper money faction alive. They (the
people) will remain as blind, as credulous, as
irritable as ever; ambitious men, and those
whose characters and fortunes are blasted, will
not be wanting to deceive and inflame them
openly or by intrigue."
This was written of thc continental paper,
and in particular reference lothe debtor faction
headed by Shays. And why should it not ap
ply to vour paper and your faction? It
does exactly. What sliould'be in that Shays?
Why should that name be sounded more than
yours? AYrite them togeflier — yours: is as fair a

114

TO THE GOVERNOR ELECT QF KENTUCKY.

name; sound them, it doth become the mouth as
well; weigh them, it is as heavy; conjure them,
Desha will start a spirit as soon as Bhays"
But the constitution was too strong foi Shays.
It will overcome the Governor. The people
put down him, and they will subdue you. He
led an insurrection against his government to
enforce paper relief. You propose to lead to
insurrection against our constitution, to effect
the same purpose.
I know, sir, that you havo denounced the
paper system, and the relief system, as min-
ous and iniquitous. I know that you have
claimed ment (as you said) for being opposed
to them. You have said that they were un
constitutional! Yes, sir, you have said pub
licly, "the relief system, or at least some of it,
is unconstitutional," and will not dare to deny
it. If you do, I am authorized to say, there is
abundant proof of the fact. I know too, sir,
thai you have said, "I am no judge breaker.
The judges of the court of appeals have a right
to declare legislative acts unconstitutional; and
it is their duty to do so, when they belive so;
and for an honest opinion they should not be
removed from office." This too, I say on au
thority, can be proven. Indeed, you have been
publicly charged with these things, and they
have not yet been denied. Still you do all you
can to enforce this unconstitutional system,
and degrade these honest judges. For this
you were elected; and, whatever you may say,
I am disposed to judge you by your deeds. I
never believed that you were, at heart, friend
ly to relief, or relief men. "You have not the
benevolence or the sensibility for distress which
dignifies the errors of a cordial relief man.
Whose misfortunes did you ever alleviate?
Whose distress did you ever relieve? What
widow's tears did you ever dry up? What or
phan's cries did you ever hush? What poor
man ever blessed your bounty? What occu
pant holds his fireside by your favor? Your
fortune is ample; but to none has it adminis
tered relief. Yet relief elected you, and you
you are pledged to enfoice it "through scenes
yet untried."
If you are opposed to the paper system, what
is your object .' What do you mean? "Why so
much noise — so much violence? 1 will tell
you, sir. Your ambition craved tho office of
Governor. It was impossible for you to suc
ceed, unless you couid be taken up by one
party, or the other. It is said that you offered
yourself to the constitutional party, and that
they (as a. matter of course) rejected you.
This 1 do not know, but have often heard,
and do believe. You then gave in your
adhesion to the other party, who are ever
ready to make, and to receive proselytes,
by any means . You then became the bosom
friend of men whom you had hated, and who
had denounced you publicly. Tho whole par
ty voted for you; and many of the other party
supported you because you told them that you
wereno relief man, no judge-breaker; and thus
you became a governor. To consolidate your
new party, you have spai^ed no pains, lou
have done everything which they could desire,

and even more than they approve. You and
they have slandered thejudges; you have tra
duced the old patriarchs of the age; you have
profaned the Tiame of Jefferson, and Patrick
Henry, by prostituting them to your unholy
purposes, and subscribing them to doctrines
which they have been eminently distinguished
for combatting and decrying. You have kept
up a tornado ever since your election; and, I
repeat it, the government is given- up to the
passions of men. All this has been done, and
IS doing to secure money, office and power, to
those who, by fair and honest means, could
never enjoy either. And yet you call your
selves republicans, and those who will not do
you homage, tories! Do you know what you
are doing? Every state iu the Union is opposed
to your party, and astonished at its success.
And have the people of the whole United
States become tories? Have they all become
traitors to theprinciples of '76? Are they all
enemies to popular government and to liberty?
No, sir; it is you that are the apostates from tne
old school — you that are the enemies of equali
ty and freedom. The people of the Union
look on your course as one tending directly to
anarchy and confusion — ^as subversive of order
and security, and therefore they deprecate
vengeance on your ambitious leaders. They
know the value of liberty, and they know hbw
alone it is tobe preserved, and they know that
you are driving us on the high road to ruin.
Suffer me tp offer you one more extract from
the productions of a wise man, on the delusions
and distractions of a debtor faction in the U.
States, shortly after the revolution:
"To a philosophical obsei'ver, the present
confusion will afford an inexhaustable fund of
astonishment and concern. He will behold
men who have been civUized, returniogtobar-
barianism, and threatening to become fiercer
than the savage children of nature, in propor
tion to the multitude of their wants, and the
cultivated violence of their passions. He will
see them weary of liberty and unworthy of it;
arming their sacrilegious hands against it,
though it was bought with their blood, aud
was once tho darling pride of their hearts;
complaining of oppression, because the law
which has not forbidden, has not also enforced
cheating; endeavoring to oppose society against
morality, and to associate freemen .against
freedom." The party here portrayed were such precise
ly as yours — their objects the same, their argu
ments the same. The liberty which they op
posed was tlie liberty of the constitution; that
which they vindicated was their own arbitrary
will — the liberty of doing whatever they
pleased. Paper relief, legislative relief, was
more necessary then than now, aud would
have been more excusable. But it was de
nounced, and its advocates silenced, by the
virtue and intelligence of those who were wiser
and.better than we — by men who have given
us freedom — and some of whom you now slan
der, by employing your name in support of
your wild doctrines.'
Other states ai'e going on prosperously.

TO THE GOVERNOR ELECT OP KENTUCKY.

115

without a Desha or his republicanism. They
are much happier, and freer too, than Ken
tuckians. But they have not discovered your
new mode of making great men — of living
without work, of happiness without virtue, of
liberty without law.
You may go on careering over the constitu
tion; you may enjoy your ephemeral power,
and not over the rights of the people, and the
character of your state; but I tell you, the pa
triot's and the poet's mzdediction awaits all
those who rise on the ruins of their country's
constitution and peace —
"Oh, is there not some chosen curse.
Some hidden thunder in the store of heaven.
Red with uncommon 'wrath to blast the wretch
Who owes his greatness to his country's ruin!"
PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY— No. V.
'•Innocence shall make false accusation blush,
and tyranny tremble at patience."
Your relief system, conceived in the spirit of
injustice, has been nourished by the sweat of
the laborious, and plunder of the honest.
To consummate its ambitious ends, it be
came necessary to slander and degrade the
judges of the court of appeals; and in the
work of defamation, you and your "cabal"
have proven yourselves worthy of your voca
tion. In calumny and falsehood, Rivington,
Callender and Cobbett, have been outetripped.
You have had the hardihood and impudence
to charge on the judges, sins of which your
selves were guilty, and the pernicious effects
of which they and their friends were endeav
oring to counteract. You hated them because
they were honest, and dreaded them because
they would not be intimidated and could hot
be bought. You saw that they must be crushed,
or you and your leading coadjutors must sink
to that infamy to which you have striven to
reduce them. Your crusade against thejudi-
ciary has no parallel in the civifized world. It
can plead no apology of misdirected zeal for
the public welfare, or of honest infatuation. —
It was barefaced ambition which, prompted
you, and your reward was tobe the delight of
standing on the ruins of your own hands, aud
domineering over the constitution and its
friends. But the drama is winding up; and
you may feel perturbation for your own safety.
The graves which you have been digging for
the judges must be tenanted by yourselves; and
you must swing on that gallows which you
nave erected for the virtuous at^d innocent.
REMEMBER HAMAN and MORDECAI.
Know, that however much you have tyrannized
and strutted, and puffed with a little brief au
thority, there is a power above you, and that
that power WILL RULE; malice -will he dis
appointed of ite victim, envy of its reward.
¦you have subjected the judges to the ordeal
of fire. Because they refused to bow to you
and idolixe you as the true oracles, they have

had to pass through the furnace; bht like Shad"
rack, Meshack and Abednigo, sustained by th"
i' ustice of their cause, they have come out un-
lurt and triumphant. Their motto was, "B*
just and fear not." In them virtue and justice
were persecuted; and in them virtue and jus
tice have triumphed, and will continue still
more to triumph. In the, closing sentence of
your famous message, at the close of the late
legislature, you call them "perverse" judges.
To you they may well seem "perverse." They
have checked you in your desolating career.
Their firmness has resisted your strides to
power, aud their purity has conquered and
baffled all your corrupting expedients. They
have stood at their posts, and warned the peo-
Ele of the savage enemy's approach. They
ave saved the temple from rapine, and have
laughed at your threate, and spurned your of
fers. Caesar called old pato "perverse." Charles
and his minions denounced Hampden, and
Russel, and Sydney, for being "perverse."
The Washingtons, and Franklins, and Jeffer
sons, and Adamses, of '76, were most "J«r-
verse." And so are John Boyle, William Ows
ley , and Benjamin Mills, "peiwerse." They '
defend their own piirity, and the people's con
stitution, fearless of all consequences; and in
this they have indeed been "perverse." They
aie not like your "new judges," suppliant and
subservient. They are such men as should
ever fill the supreme bench. May our liberty
forever have such champions, and our consti
tution forever have such guardians. May the
poor always find such friends, aud the tyrant
and the knave always meet such adversaries.
By your calunmies and cruel and unrelent
ing persecutions, you have given these men a
fame that will endure for ages. They are
even now viewed as living monuments of a
virtue and patriotism worthy of the admiration
of the best men. Posterity will feel for their
memories the gratitude due to benefactors.
'Whilst you and your coUejigues in conspiracy
against the constitution, will be execrated as
the Pisistratedi, the Clodii, aud the Catalines
of Kentucky, those abused judges will be re
vered as the Solons, the Bruti, and the Catos of
the age. They have enemies now; so has had
virtue in all time. They will have enemies
while they live; so had Cato, so had Brutus, so
had Washington — even so had Jesus Christ.
Vice and envy will hate virtue and merit. But
the time will come when all will marvel that
these "old judges" were not respected and ap
plauded by all. Even now, sir, their "INNO
CENCE" 18 beginning to make your "false ac
cusation blush," and your "TYRANNY" is
beginning to "tremble at their patience."
What is your ultimate hope? What is your
real object ih your unprecedented, "perverse,"
and calumnious warfare against the judiciary?
You say that you were never an admirer of the
relief system. Your party say that there is no
relief party now in the state; and the relief
laws having been found to be either uuconsti-
tutionid or unjust, or both, have been revealed.
Why then this interminable and virulent con
troversy about the judges?

11&

TO THE GOVERNOR ELECT OF KENTUCK'?.

That the old judges are honest men, you
dare not deny. You havo offered to rc-com-
mission them! That they ai'c able men, their
decisions prove beyond .cavil or doubt. The
chief justice has been an ornament of the
bench for 17 years. He is a tried patriot — a
republican of the old school. He is mod
est, pure, moral, wise, experienced, firm, just,
aud incorruptible. What more do you want?
What more do yoii expect? If you expect any
judge in Kentucky to possess more or higher
qudifications for his station, you expect more
man is attainable. You will not find the man.
Do not such men as BOyle suit your interests or
your places? They do not; and here is the se
cret. You haye no such men among your par-
tizans. It would be an insultto common sense
and a mockery of virtue, to draw a parallel be
tween your Bibbs.your Barrys, and your flag-
gins, and JOHN BOYLE. They are his
equal in no one quality that is good or great.
He and they are antipodes. What does your
great oracle, John Rowan, now say of John
Boyle? I ¦^ill tell you, sir. He says that
"Boyle is a virtuons man, and a splendid judge,
and that he always thougld so." If you all had
succeeded in your aims, as Bowaii has done,
you would speak the saine language. Bu't he
found his way to the Senate of the United
States by ca,lumniating Boyle, and you and
your ambitious co-operators are following his
example, expecting similar success by lite
means. You will fail. You have presumed
too ihuch on popular ignorance and credulity.
You have calculated too much on the efficiency
of epithets. 'The people are virtuous, and they
are wiser than you suppose. They begin to
understand you, aud your race of popularity is
run — your days are numbered, and Tekel is
inscribed on your front. Your pharisaical hy
pocrisy and pretensions will not longer avail
you. You love the people too much!
John Boyle is above the reach of your cal
umny; your breath can never blasthim. He has
lived too long, too usefully, too nobly, to be the
victim of your detraction, or of your persecution.
Asa man, he is, in all the social and civil rela
tions, irreproachablo;as a politician,he has ever
been^patriotic and undeviating; as a jurist, he is
learned, upright, and eminent, and his fame is
extensive and honorable to him, and creditable
to the state of which he is a distinguished citi
zen. His whole character, sir, is above re
proach. The viper that strikes at him, gnaws
a file. By his own unassisted merits, he has
earned an enviable pre-eminence. He inherit
ed no fortune; no patrician blood ennobled his
veins; no ancient heraldry emblazoned his
name! Self-dependent.and self-taught, he has
carved out his own fame: A "novus homo," he
has, by merit of no common cast, won distinc
tion. His unpretending talents and unosten
tatious virtues, have drawn around him the
confidence .and esteem of wise and good men.
AVhen in Congress, he was the friend of
Jefferson, whilst your Rowan was his reviler;
and Jefferson then was, and now is, Boyle's
friend. He knew his worth, and as a testimo

nial of his high opinion of it, he was desirous
in 1807 to appoint him a judge' of the Supreiiie
Court of the United States. In March 1809,
Mr. Madison, unsolicited, tendered to him the
office of (Governor of Hlinois, one of the most
responsible and most honorable under the
general government. On his return home, he
was invited by Gov. Scott to the Cotirt of Ap.
peals' bench. His attachments to Kentucky
overcame his judgment, his sense of interest
and his ambition, and he gave up his governor
ship, (which the then chief justice of the state
resigned his office to accept,) and consented
tobe adjudge, with a salary inadequate, and
with duties to perfoi'm which were appalling.
Without a competent reward, influenced only
by a ¦wish to serve his state, he has ever since
toiled on the bench, (the most toilsome of all
official stations,) until he has become poor, and
has literally grown grey iu the service of his
counti'y. His virtues have adoriied this bench; Ms tal
ents have thrown a lustre around it. His name
is identified with its history and its fame. If,
as others have done, he had consulted his in
terest or his ease, he might now have been in
comparative affluence, and exempt from the
annoyance of a Governor and a party, who
dread his inflexibility, and some of whom cov
et his office and sicken at his just fame.
And shall such a man be prostrated by the
Governor, and Rowan, and Bibb, and Barry?
Shall HE be blasted by their envy, or supplant
ed by their ambition? Justice says NCI-
Kentucky says NO!
He never sought office, he never shrank from
duty; and shall his country give him up to his
and her enemies? Let such folly never mart
her counsels — let such ingratitude never suUy
her escutcheon. He stands in the breach which
ambition has made in the constitution; and
whenever he falls a vjctim to your rapacity,
his country's cause and his countiy's welfare
will fall with him. 'Whenever he is immola
ted to satiate your vengeance, the incense
¦which ascends from the Star of his sacrifice
will be mingled with the smoke of a consumed
constitution. Around his destiny, in this cri
sis, that of the constitution is indissolubly en
twined. He stands on the last rampart which
protects the constitution from your Vandal as
saults. If you can strike him down and pass
this bai-rier, you at once enter the citadel and
give it up to violence. Your will is then the
constitution. At such a catastrophe, the pa
triot might indeed exclaim, "0 tempera, 0
mores!" And then itwould be but right and
natural for a Boyle, like Scipio Africauus, in
the fervor of a holy resen^ent, to bequeath his
curses to the ungrateful country which he had
so faithfully served and so long illustrated,
and his ashes, to strangers, in the memorable
epitaph, "0, ungrateful country! thou shalt
NOT u.KVE MY BONEs!" But he will never be
driven to this sad extremity. Kentucky will
not be reproached with thc ungrateful neglect
,of a Bellisarius, or the exile of an Aristides.
Royle and the constitutiou will hold out to
the last, and signally triumph over the Gov-

TO THE GOVERNOR ELECT OP KENTUCKY.

117

ernor and his faction. They are placed on a
rock which you cannot shake. Your ai'rows
fall at its base. They will yet recoil on the
heads of those whose parricidal anus aimed
them at the PEOPLE'S PANOPLY.
Of William Owsley, either as a man or as
a judge, no one, without falsehood, can utter
any thing reproachful or derogatory. He is
amiable and moral, prudent, just, exemplary
in all his conduct, private aud public. He is
an enlighted and faithful judge. He would
adorn any bench. This is "multum in parvo;"
it is saying a great deal in a few words ; but ilot
more than those who know him well, will ap
prove. None of your pai-ty deny that Mills is
an able judge, aud very few doubt that he is a
Christian. You know, sir, he is "ortus a quer-
co, non a silice" — a bough from the oak, and
not from the willow.
These are the men against whom you have
been waging war. They' are shielded by vir
tue; they are supported by merit; they protect
aud are protected by the constitution; and
however much you may laugh at these de
fences, you will fihd them too sti'ong for your
cunning or your force.
In aU the fury of your warfare, what has
been the burthen of your war-song? This, and
this only — that these "old" judges, these "per
verse" judges decided, that "no citizen can be
compelled to accept paper money in discharge
of a specie debt;" that "nothing but gold or
silver shall be made a tender;" that "justice
shall be administered without sale, denial or
delay;" that "no ex post facto law, or law im
pairing the obligation of contracts, shall be
passed;" that "the people are above the legis-
ture;" that "the constitution is the supreme
law of the land;" that "all legislative acts con
trary thereto are void;" that "debtors may be
compelled to pay their debts according to con
tract;" and that "the constitution will protect
all freemen in the enjoyment of their rights."
And is not all this just? Is it not all right?
You dare not say that it is ¦wrong. You ad
mit that it was the duty of the judges to decide
on the constitutionality of the acts of the legis
lature. What crime then have they commit
ted? Did they decide wrong? I say no. The
people in every state in the Union say no.
Every Supreme Court in America says no.
Those who formed the constitution say no.
Justice says no. , Reason says no. NO is
echoed from every quarter, except from you and
your party; and if it were not your interest to
say yes, you too would say no. On this topic
I shall touch more, and niore fully, in a sub
sequent number.
But suppose the decision is wrong; are not
the judges honest? Has the decision been en
forced! Has not the relief system, which it af
fected, been repealed? Whether the decision
was right or wrong, would not the opinion of
the Supreme Court confii-m or reverse it? Why
then all your clamor about the judges? Why
has "Ocean been into tempest tost, to waft if
feather or drown a fly?" Sir, this decision has
been only a pretext; power was your end;
fraud and hypocrisy have been your means.

You opened your war by misrepresenting thc
decision of thc court; and without attemptiuo-
to deny the correctness of its principle, you
endeavored, by perverting and distortiug it, to
excite prejudice against the court. You have
been fighting a windmill, Quixote-like. You
made a monster, and then valorously encoun
tered it, with all your artillery and small
arms, You talked about the soverignty of thc
people, that is, the omnipotence of the legisla
ture.. You spoke of usurpation. There was
as much vociferation about right and remedy.
All these abstract notions had no application,
and you knew that they had none. But you
hoped to be able to amuse and delude a major
ity of the people.
Fearing that this artifice would fail, you re
sorted to opprobrious names; you called the
judges "KINGS," and those who defended
them "TORIES."
You expected to overawe your opponents
aud intimidate the judges. Your attempts
were abortive. They have only produced con
fusion, and will end in your own discomfiture
and degradation. The judges have not re
signed. They will not resign, until they can
do so voluntarily, and honorably to themselves
and safely to the constitution. They do not de
sire to continue in office. Why should they?
They receive no salary; and you have degra
ded the court until its honors are threadbare.
But you have not suffered them to resign.
You have been striving to force them from of
fice by abuse, and by unconstitutional legisla
tion. Through them you have done violence to the
constitution; and if they succumb to you, the
principles of that charter are, by them, sur
rendered. They have given a pledge that they will re
sign as soon as the constitutional question is
settled, and a governor is elected by the peo
ple to whom they can confide the appointment
of successors.
But this will not satisfy you. You wish to
enjoy a triumph over them and the principles
which they uphold, before you retire from the
arena. You are impatient to fill the judgment
seats with your creatures and your parasites.
They, too, are impatient. They can wait no
longer. And they fear that when the people
shall have an opportunity to elect another gov
ernor, he will be an upright and enlightened
man, who will not countenance their doctrines,
nor promote their selfish and ambitious ends.
Whenever the "old judges" retire from the
bench, it will be difficult to fill their vacant
seats as they filled them. You will not live
to see it done. We have not the men who
WILL do it, nor who, if they would, CAN do
it. It will be long before we shall see another
Boyle on the bench; another chief justice with
his urbanity, his learning, his purity, his in
flexibility, and his EXPERIENCE. But 1 as
sure you, sir, that WHENEVER THE CON
STITUTION SHALL TRIUMPH, OR THE
PEOPr.E SHALL BE ALLOWED TO ACT,
these venerable judges whom you have so
imuch traduced, will retire from a service iu

118

TO THE GOVERNOR ELECT OF KENTUCKY.

which they have wasted their strength, and
been compelled patiently to endure the vilest
slander. When they retire, the approbation and ap
plause and gratitude of an injured and insult
ed people will follow them; the constitution
will be renovated; and they will enjoy that re
ward which you will never feel, and know not
how to value — the consolation of having done
their duty with purity, constancy and fidelity.
Their's will be a reward which you can never
give nor take away.
"¦Wliat nothing earthly gives or can destroy.
The soul's calm sunshine, the heartfelt joy.
Is VIRTUE'S prize " A PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY.— No. VI.
"Nee luisse pudet sed non incendire ludem."
HOEAOE.
("Once to be wild is not a foul disgrace;
'The blame is, to pursue the fBantio eaob.")
"Datveniam corvis, vexat censura columbos." Juvenal.
(Censure pardons the crows, whilst it har
asses the doves.")
The first censures which your party de
nounced on the judges, might have been for
given and overlooked. They might have been
attributed to the occasional ebullitions of par
tisan resentments; they might have been pro
voked by the coUision of honest opinions, be
lieving, as some no doubt did, that the judges
had erred. Your party, before you were initia
ted, rebuked the judges very freely; they an
imadverted boldly, and even virulently, on
the supposed principles of their memorable
decision. But they did not venture to profane
the constitution. They vented their feelings
in verbosity. Their steam was conducted off
by resolutions and preambles, &o., and evapo
rated without endangering the safety-valve of
the political machine. But you are more dar
ing. As soon as you were placed at the head
of the parW, new scenes open — scenes of vio
lence and licentiousness. You sacrilegiously
invade the constitution; andyours is not a war
of words, but of deeds. You organize your
party; tell them that the Rubicon is passed, and
resolve to be "AUT C^SAR AUT NUL-
LIUS" (either Csesar or nothing.) You en
deavor to prostitute the judges by threats and
by obloquy. You acknowledged by your acts
that the judges cannot be constitutionally re
moved from office, without the concurrence of
"two-thirds." But, disappointed in obtaining
this majority, you then insidiously resolve to de
prive them of salary and jurisdiction; expect
ing that they would be compelled to surrender.
You announced thatthe constitution was made
by the people, and they can violate it if they
think fit; lliat the popular will is the constitu
tion ; that the constitution is nothing but parch

ment; that the legislature are the people, Ac,
<fcc., &c. All this was preparatory to your at
tack on the constitution. You concluded that
if a majority could be prevailed on to pass an
act, whereby they could have a pretext to say,
that the judges were out of office, the same ma
jority would persist; and that this in effect
would be tantamount to a decision of two-
thirds. By this course you hoped that you
would virtually remove the !judgeg; that your
people-loving senators would refuse to repeal
your act, and thus you would harrass the judg
es and alarm the people with anarchy, until it
would be their interest to submit and acqui
esce in your usurpations. And jf unexpected
ly, the majority should decide against you, ahd
refuse to give up the constitution, as a last re.
source, you supposed that by proposing a com
promise, and talking about war, and anarchy
and bloodshed, you must certainly prevail. You
charged the judges with being opposed to the
occupant, and with being under bank influ
ence; all which you knew was false. By such
means as these, you succeeded in producing a
monetary effervescence, and obtained a major
ity in the legislature. You then tried thejudg
es for their "CRIMES." They were acquit
ted; and in despair, lyou then determined to
disregard the constitution and the public
peace, and passed the re-organizing act. This
was the catastrophe. You could conceal your
principles no longer. The people awoke from
their slumber, and denounced your act as un
constitutional and void. Thus detected and
convicted, you ask for " COMPROMISE. "
You ask your adversaries to give you what you
have been contending for, and what you passed
the re-organizing act to achieve! Modesty!
where is thy blush! Hypocrisy! where is thy
mask! When you first conceived the famous act of
1824, did you not believe that it was unconsti
tutional? But you had abused the confidence,
and sported with the credulity of the people
so long, and so miraculously, that you had no
fear of defeat.
You appealed to the people with great con
fidence, declaring that the majority must rule
in all cases whatsoever. Those opposed to your
unconstitutional act — knowing that in this ex
tremity the majority was the last resource, and
the only umpire, and believing that the peo
ple were not so lost to a sense of their obvious
danger, as to sanction your usrapation — joined
in your appeal. The people decided the issue
against you. They said that your act was
V OlD. Do you submit to this unerring major
ity? Do you conform to your own test of po
litical infallibility? Do you acquiesce in the
people's decision? No, no; this you never in
tended to do. The majority is right when it
is subservient to you; but when it is against
you, it is wrong. You say that this majority
who must govern in all cases, was deceived.,
BRIBED; and therefore you will not submit
tothe award. Well, 4f the people were delu
ded or bribed last year, may not the same
things occur this year? And when shall we

TO THE GOVERNOR BLBCT OF KENTUCKY.

119

know that they understand what they do, and
do right? If they ratify their decision next
August, will they \>e bribed again? But sup
pose they should decide in your favor, what ev
idence will you give us, that they are not
bought up, as you charge them with having
been bought? This is a poor, pitiful subter
fuge. It is a slander on the people, and a
disgrace to your parly.
As soon as the result of the last election was
known, you were busily employed in devising
ways and means to avoid the effect of the pub
lic will; to frustrate that will to which you
had appealed as the supreme arbiter. Did you
and your judges not write letters to certain sen
ators urging them to disregard the will of their
constituents, and promising them indemnity
for that resistance? Still you cry, the public
will must govern; all functionaries are respon
sible to the people! It is then resolvect, (I
suppose in caucus,) that your party shall unite
all their forces, and throw out in your mes
sage all the inflammatory matter which they
could jointly produce; and that they should
give up the new judges and call on the people
for "compromise." Accordingly, the message
appears full of slang and gall. You did not
write it, and I am uot sure that you know what
is in it; but being its putative author, you are
responsible for its contents. It is evidently the
prodtiction of some disappointed, broken-down
mau, driven by envy and debt, to desperation.
In this document you are made to use the
following language: "Coming from the bosofn
of the people, you ai^e necessarily better ac
quainted than I can be, with their wants and
Uieir interests." Speaking of the act of 1824
you say: "To end the controversy and rid the
country of these erroneous and dangerous prin
ciples, the majority now deemed it necessary
to resort to their constitutional power of abol
ishing the court," and establishing another
consisting of other men," &c. "1 have applied
the best efforts of my understanding to learn
the public interest and will," Ac. Allu
ding to a suppression of the "old judges" as
disturbers of the peace, you say: "1 need not
inform the legislature how unpleasant will be
the duty, which such a course of conduct on
the part of the former judges will impose.
Nor need I tell them, that, painful as it may
be, the executive will not shrink," (fee, <fec.
"AND WERE THE BE -ORGANIZING
ACT REPEALED, the same doubts would ex
tensively hang around all the acts of the for
mer judges, UNLESS THEY SHOULD RE
CEIVE NEW APPOINTMENTS," .fee, &c.
Patriotic governor! Heroic governor! you
have taken pains to ascertain, that you may do
the people's will! But nevertheless, whatever
it may be, the old judges shall not enforce their
decrees; and if they attempt it, you will call
out the militia! This is your meaning. The
obvious import of your language is, that unless
the re-organizing act be repealed, the old judg
es SHALL NOT ACT; and if it be repealed,
thev shall not act, UNLESS THEY SHALL
BE RE-OOMMISSIONBD BY YOU. Thus

you tell us that [whatever tho people think i,i
immaterial, for you are resolved to consider
this odious act constitutional, and therefore the
old judges as removed from office; and that you
will feel bound to enforce the "law." In oth
er and plainer words, without any circumlocu
tion, you mean to say, governor, that THE
PEOPLE SHALL NOT DECIDE THIS
QUESTION. This is undisguised TYRAN
NY. But you will be disappointed; your
threats andyour artifices will all be unavail
ing. WE, THE PEOPLE, HAVE DECI
DED, AND WILL DECIDE THE QUES
TION AT ALL HAZARD.
Your conduct is like that of all men who
aim at unholy power. It was the conduct of
the pope^ and the kings of priest-ridden, king-
ridden Spain.
In Spain there was a controversy, in the 11th
century, between the Musarabic Liturgy and
the Holy See. The Spaniards contended for
the ritual of their ancestors: the popes urged
theirs. It was proposed to decide the contest
by a single combat. The champions met and
fought, and the Musarabic Liturgy was victo
rious. The queen and the popes were not sat
isfied; they insisted on another trial. The or
deal was selected. A fire was kindled; a copy
of each ritual was thrown into it; the book
which stood this test untouched, was to be thc
established ritual. The Musarabic triumphed
again. But lo! the queen and popes were not
yet satisfied, and refused to submit; and all
were denounced as heretics who would not for
sake the Musarabic and confomi te the papal
ritual! I will not attempt the parallel between this
and your case; nor between the papal party of
Spain, and yourparty in Kentucky. The analo
gy is striking, arid requires no cleliniation .
After you have thrown the country into up
roar and thc government into anarchy, YOU
conplain oi CONFUSION AND STRIFE, and
demand a "compromise!" What, sir, is left
for compromise? Do you suppose that the peo
ple are so weary of the loathsome contest, as to
compromise their constitution? You do their
intelligence and virtue injustice. They will
not compromise with you on your terms. The
old judges are either in office or out cpf office.
The re-organizing act is either constitutional
and valid, requiring repeal; or it is unconsti
tutional and void, without repeal. This is the
question. Can it be compromised? NO, NEV
ER. Much easier would it have been to compro
mise the right to levy ship money, in tho reign
of Charles I. Much easier would it have beeu
for our fathers to have compromised the tea tax
and stamp act in '76. These abstract rights
were not sensibly very important, but the prin
ciple was comprehensive and radical. Itwa*
a question of freedom or vassalage. So here,
ours is a question of constitution or no consti
tution; and it must be settled by the peojjle.
Your party are suddenly very much afraid of
the people. They are very desirous to have a
call of the legislature, to prevent another de
cision by the people. They say thatHhere is

120

TO THE GOVERNOR ELECT OP KENTUCKY.

no court, and anarchy must be the consequence.
WHOSE FAULT IS THIS? Who produced
this anarchy? Those who passed the re-or
ganizing act, you aud your judges, and the sen
ators who, disregarding the will of their con
stituents, refused to repeal it. But there is a
court in existence which will do the people's
business. That court was never abolished.
It is the court of the constitution — of the PEO-
,PLE in CONVENTION— and not the court of
aFACTIONin CAUCUS. Be quiet, sir; tho
people have taken Uie matter into tlieir own
hands, and all will be well.
There is great impudence in your proposi
tion of "compromise." A. takes forcible pos
session of B.'s land, and finding that he cannot
hold it, offers to comjyromise by each claimant
surrendering to the sons of A, This is as mod
est and just as your "compromise."
If you can get clear of the judges, you will
liave attained your ultimate object in relation
lothe court: you will have put down the men,
and establislied the precedent. You desire the
control of the judiciarj'", and the expulsion of
its faithful incumbent.^;; and it will suit you as
well to succeed by "compromise" as in any oth
er '«-ay. You want toreraove all constitutional
chicks' lo your will.
Tliis department of the ^'uvernment, like
each of thc others, is ardaiiicd by the constitu
tion, and is not tlie creature of legislative will.
Thisis all we contend ior, and this must' now
be settled by the people. The questiuu has al
ready cost us too much and is too important,
now to be "compromi,-.ed."
When you announce in the message, that
"the people rje dissatisfied with tlic arrange
ments of last session," you virtually admit
their verdict against your re-organizing act.
When tliey said that it was unconstitutional,
did they uot also say, that the old judges are
in office, and your "new judges" no judges at
all? And what was your plain aud imperious
duty? It was, torecommend submission tothe
]5oop!e's will, and the observn.nco of order.
Having failed to remove tho judges by address,
aud defeated iu ynur attempt to abolish thMr
court, tlie cimrt still exists and thoy are sull
the judges and only judges. But because you
havebeen tluis so sigiially defeated, must the
judj^es rcsit^ii, or must their friends abandon
tliem and unite with ymi in prci-lrating themV
This is Your prc^pn^itiou.
Why did you not resign when invited by scv-
eniy-fiv'.' lumdredtlis of, the people's rcpre-
seiitativi.'S? They held you as a nuisance which
ought (0 be abated.
\V)iy did not your refractory senators rosigii,
and give their constitiunits a riglit to be heard
in llic Senate'.' If you aud tiiey had done this,
\i e should have no difficulty, no moroturmoil.
Theonly diificulty which oxislshiis beonpro-
diid-d by Yourselves, by resisting ihe people's
will. .ViidiuAvyou say, drive the old judges
from oflice and we will be peaceable!
i f you have ;lie right to rcmovo tlicin by ii
IcgislaiiM' act, they .ire out of office; if you
h.ivp not. this right, thoy are in bffico and can

only be removed by two-thirds of both houses.
Suppose your compromise agreed to, how will
you get clear of these "perverse" judsffes?
This will puzzle you. I suppose you willan
swer, "CAUCUS them out."
If the court of appeals stands ou a constitu
tional basis, no compromise can effect it. If
its. base is legislative, there is no necessity for
compromise. Whether it depends on the one
or the other, the people alone can determine.
Many were for compromise with King George
in '76. By that compromise we might now, be
colonists. If your compromise be accepted,
we shall in effect and in practice, have no con
stitution, and no rule of right, except the will
of those who govern. After such a compro
mise, will not others hereafter follow your ex
ample, encouraged by your success?
AND WHAT INTERPRETATION WILL
BE GIVEN TO THE CONSTITUTION?
The questioii is now iagain submitted to the
people. Let them decide it. Let that decis
ion be carried into effect, and peace will be re
stored, the constitution will be re-established,
and the "judge question" settled for ages.
But why does your party require a convoca
tion of the legislature? Is it to prevent a de-
cisiou by the people? If your senators hare
relented, und are now Avilling to vote the will
of their constituuuts, why does not your half
of a "now court" surrender, and be-peaceable
citizens? If they and you will do only this
'much, tliere is no necessity to impose on acom-
munity whose treasury is already exhausted
by your prodigality, ihe expLiite of a called
session of the legislature. For, rhe re-organ-
ietng act having been decided to be void, if
you and your judges will surrender the re
cords and forbear your interference, the court
can proceed without any difficulty or obstruc
tion. If the refractory senators are determined
still' lo be refractoiy, what can be done by a
called session? The people are as competent
to decide as their servants, and thev will once
more decide at the polls," if you 'n'lLL tehmit
Tiffisi TO DO so; and then, if you desiro a res
toration of order, you can call the uew legisla
ture. But we protest against i\ny uiiii.cessa-
ry convention. Ynu ha\'e wasted'too much of
our money already, in unprofitable warfare
'^yith the judiciai'i,'. Thousands havo been
thrown away in this humiliating contest.
Isthe principle of tho controver.-y impor
tant'.' llm; then can you, after expending so
mucli time and money, compromise it? How
can ire coinproinii!o iC' If it bo uot very es
sential, why do you not avert the calamities
whicli you ko<'iu to appreliend, bv acquiescing
in the people's decisimi? By doing this, you
sacrifice no principle; you do not admit the'in-
v.alidity of thc re-orgimizing act, but only ad
mit the people's right to govern. If, last win
ter, tlio senate liad united with thc other house
in repealing thc act, they would not necessa
rily have compromilled principle. If thoy had
the right topuFs tho net, they had the right to
repeal it. 'I'o do so certainly would not have
been unconstitutional. And its repeal would

TO THE GOVERNOR ELECT OF KENTUCKY.

ISl

not have been considered as evidence conclu-
siire of their conviction of its unconstitution
ality, but only of its inexpediency, and the
wish of the people that it should be repealed.
But on the other side, there can be no com
promise, without the surrender of the total
principle — of everything in controversy. "We
insist that the act is unconstitutional. We
can never, even indirectly or tacitly, acknowl
edge its efficacy to any extent or for any pur
pose, as we must do if we agree to the expul
sion of the ddjudges and the construction of
anew court. "We contend thatthe judiciary is
one of the departments of the government or
dained by the constitution, when it declares
that there shall be three departments. We in
sist that this department cannot be abolished
by the legislature; nor the judges of the court
of appeals removed from office in any other
modes than one of those prescribed in the
constitution. These are vital principles, which
we can never compromise. If it was impor
tant to construct the government on three pil
lars, it is equally essential to preserve the whole
three, in their proper places, and with all their
strength. Is the re-organizing act unconstitutional?
Then the old judges are iu office. If they are
in office, it is because they can be ousted only
by a majority of two-thirds of the legislature.
If they can only be removed in this way, how
shall we "CO.VIPROMISE" them out of office?
And if we cah remove them by compromise
now, 'why couid we not have done it before
your great act was passed? If there was any
other mpde of removing the judges than those
defined in the constitution, your party has
been right aud mine wrong. If mine has been
right, and there is no other mode, how can we
"compromise," and thereby create a new mode
unknown to the constitution? , I should con
sider this kind of compromise more unconsti
tutional and dangerous, (if any thing can be
more so) than the re- organizing act. If you
intend this njuch by your compromise, it is ev
ident that we cannot agree to it without giving
up all for which we have 'struggled.
But da you intend only to re-commission the
old judges? Why should this be done? If
they are in office, your commissions will be
void; and any oath administered under ^hem,
or other act done, of no effect as derived from
or attached to them.
They cannot accept your commissions. They
never will accept them. If we agree with you
that they shall receive- no salary until thfey
shall accept and qualify, do we not thereby
surrender every principle in controversy? And
have you not gamed a complete triumph?
The question is at last resolved into one sim
ple proposition. Are there three, or oidy two
depar-tmehts instituted by the c.onstitution? Is
the court of appeals constitutional, or legisla
tive? To compromise such a questioit, or leave
it unsettled, AT this time, would be the great
est calamity that could afflict, Kentucky.
England, in 76, had repealed her stamp act,
and offered to repeal her duty on tea; and thus
16

proposed a compromise with her former colo
nies. They rejected the offer with indigna
tion. It was not the paltry tax of which they
complainedf it was, that England did notpos-
sess the right to tax America whilst unrepre
sented. If they had compromised, England
might, by abusive exercises of the taxing pow- ¦
er, have subj'ected them to abject oppression.
Direful War, with all, its horrors and devasta
tion, stared them in the face. But, holdiiig their
lives in their hands, the patriots of '76 rejected
the compromise, and appealed to the only um
pire — the god of battles.
We care not for men: we contend for sacred
principles, as dear as the consecrated princi
ples of '76. Like England, you propose to
repeal your stamp act, but you will not sur
render the right of your "PARLIAMENT" to
rule the humble judiciary "in all cases what
soever." Like our fathers of '76, we reject your
offer, and appeal to our only arbiter — the peo
ple. But you menace violence. You hold up to
our view all the horrors of gorgon-headed an
archy. If these threats can alarm us into
"compromise," we do not deseiwe the good
constitution with which we are blessed; and
Will never enjoy its benefits. The constitution
is strong enough to resist your violence and
prevent your anarchy, or it isnot a constitution
worth aconflict.
If a robber break into the treasury and rifle
it, will you, because he draws his dirk and re
sists, "compromise' with him, by suffering him
to retain the stolen money and go abroad un
punished? If the culprit sentenced to die for
murder, shall defy the comrponwealth and de
clare war against the community, would soci
ety, to avoid bloodshed or a little civil war,
suiTender to him and remit the sentence? But
such is your compromise! You have violently
attempted to abolish the court of appeals, and,
resisting the people at the polls, you denounce
anarchy and war unless they compromise with
you, by allowing you to enjoy your triumph,
and riot over, the constitution with impunity!
You have gone too far. The Rubicon is in
deed passed. The ground of compromise is
far behind yoii. You must now either con
quer or retreat.
THE TENURE BY WHICH JUDGES
HOtD THEIR OFFICES MUST BE AS
CERTAINED AND PERMANENTLY SET
TLED BY THE PEOPLE. ~
Suffer me to offer yori the sentiments of Vir
ginia, statesmen and patriots, on an analogous
subject. You will find them very forcible and
apposite. ¦The Virginia judges were reduced to the di
lemma of submitting to an unconstitutional
act of their legislature, of resisting, or of re
signing. They could not submit; they [would
not resign; they resisted, as our judges have
done. Their vindication is long and able. I
will only trouble you with the following ex
tract: "The following alternatives presented them
selves to the court, either to decide those qnes

1S2

TO THE GOVEBHOR ELBCT OF KBNTUOKT.

tions, or resign their offices. The latter would
have been their choice, if they could have
considered the questions as affecting their indi
vidual interests only; but viewing them as re
lating to their office, and finding themselves
called by their country to maintain an 'impor
tant pott as one of the three pillars on which the
great fabric of govei nment was erected, they
JITDGED THAT A RESIGNATION WOULD SUBJECT THEM
TO THE REPROACH OF DISEHTING THEIR STATION
AND BKTRAYISG THE SACRED 1NTEEEST8 OF SOCI-
ETV ENTKUSTED TO THEM; and OU that ground,
found themselves compelled to decide, how
ever their delicacy might be wounded, or
whatever temporary inconveniencies inight en
sue, and in that decision to declare, that the
constitution and the act are in opposition and
cannot exist together, aud that the former must
control the operation of the latter." "To ob
viate a possible objection, that the court,
while they are maintaining the independence
of the judiciary, are countenancing encroach
ments of that branch on the departments of
others, and assiiming a right to control the
legislature, it may be observed, that when
they decide between an act of the people and
an act of the legislature, they are within the
line of their duty declaring what the law is,
and not making a new law. And ever dis
posed to maintain harmony with the other
members of the government, so necessary to
promote the happiness of society, the court
most sincerely wish that the present infraction
of the constitution may be remedied by the
legislature themselves, and therefore all fur
ther uneasiness on the occasion be prevented.
But should their wishes be disappointed by
the event, fhey see no other alternative for a
decision between the legislature and judicia
ry, than an appeal to the people, whose ser
vants both are, and for whose sates both were
created, and who may exercise their original
and supreme power whenever they think prop
er. To that tribunal, therefore, the court in that
case commit themselves, conscious of perfect
integrity in theirintentions, however they may
have been mistaken in their judgment." .
To this impressive address, the following
well known and revered names are subscribed,
viz: Bdmund Pendleton, George Wythe, John
Blair, Paul Camngtou, Peter Lyons, Wm
Fleming, Henry Tazewell, Richard Carey,
James Heni^y, John Tyler, {judges.)
No Rksignation here.
Such was the spirit of an American judicia
ry; such were the sentiments of American
statesmen, whose wisdom and whose patriot
ism none dare question. And such, I trust,
will ever be the cherished spirit and applaud-
•ed sentiments of the judges, the' statesmen,
:and the people of all free countries. These are
'.the principles of '76. They are the principles
ifor .aefending which, you have branded the
judges with, usurpation, and their advocates
with federalism. They are the principles of
lOur govorjiisnent — the principles of liberty.
'They are our principles, and we will never
•arrender them toforc^ or to "compromise." A PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY — No. VII.

If au honest, and I may truly affirm, a la
borious zeal for the public service, has given
me any weight in your esteem, let me exhort
and conjure you, never to suffer any invasion
of your political constitution, however minute
the instance may appear, to pass by without a
determined, persevering resistance." Jtunius.
Liberty, without restraint, would be anar
chy. Security, without the guardianship of
fnndimental and inviolable laws, would be
an unexampled anomaly. It would be a prod
igy, which never yet appeared in the world,
and which never will be seen until man is
renovated, a,nd restored to his pristine purity
and primeval innocence. As long as frailty and
vice belong tp our fallen nature, government
will be indispensable to our mutual safety and
welfare. Natural freedom is unqualified ty
ranny. We are bound to surrender a portion
of our original liberw^, to secure the enjoyment
oithe remainder. ,If we wish to participate
in the benefits of society and civUization, we
must, as the only price of the enjoyment, give
as much as we exact. We must surrender our
individual wills to the paramount wiU of the
community of which we are constituent partB.
That united will, to be just, and stable, and
authoritative, must be rightful. It must not
be arbitrary and capricious. It must be regu
lated by elementary principles — ^principles
growing out of the nature of man and the'or-
ganization of society — ^principles approved by
impartial reason, and tested by long experi
ence — principles which are just, because they
are suitable, and eternal, because they are
j ust. These elements of government, ho^wev-
er incorporated, constitute the political stam
ina, which, when established, make what is
caUed the constitution. These organic laws
of the body politic aie either settled by com
pact, or by long usage and general afcquies-
cence. They are either ¦written or traditiona
ry. In whatever forin they exist, they ¦will be
respected and upheld, by all who know the
difi'erence between regulated and unregulated
power, between disciplined and undisciplined
foroe, between reason and passion, between a
cultivated enclosure and a dreary wilderne»3
of power.
In despotic governments, the despot's will
is law; in republics, the people's wiU is law.
In either form of government, the law, with
out constitutional control, would be arbitrary,
and the subject would be wholly insecure in
his life, liberty and property. Under an ab
solute prince, the only safeguard of individual
right, isthe power aud the probable success of
physical resistance, or the benignity of the
prince. No written constitution ' defines his
Sowers, pr guarantees the rights^ of others.
'o organized principles of checks and balances
control his authority or prevent its abuse.
Every one is evei^y moment insecure.
Equally insecure are individual rights, in
I a government in which the will of aa ascend-

TO THS GOVERNOR ELECT OF KENTUCKY.

123

ant party is in all cases the supreme law. No
government can be free or stable, unlew the
principles of justice and morality overrule the
passions or interests of factious bodies. A
truly free goTernment is one in which justice
predominates over power, aiid right over
might. No government is free or equal in
which power is justice, and might is right, al
though that power is the authority of num
bers, and that might istheir physical force.
If the people wish to be secure, and to enjoy
liberty without the alloy of anarchy, they
must establish, by common consent, the prin
ciples of justice and universal right, an d so or
ganize their government as to secure these
principles from violation. How to do this, is
the great desideratum in politics. It never
was. done, and never will be, without a written
constitution, which shall define the rights of
those in autiiority, and pro^vide the means of
keeping all the departments in proper equi
poise. Without three coequal and counteract
ing departments, there can be no stability in
government, and no permanence of right.
Fewer than three cannot preserve the harmony
of justice. And when they are properly bal
anced, with the power and the inclination to
co-operate with, or counteract each other
when the public good requires, faction has no
terrors, and every citizen feels secure. In thia
equilibrium of power lies the value ol a con
stitutiou; and it is the ultimate aim of all po
litical eyperimeut. This secret was never re
vealed until within the last century; and the
promised land of Columbus was the theatre of
its development.
The republics of ancient times were turbu
lent factions, and generally short-lived. "They.
were aristocratic, and freqently intolerably
unjust. This was because there was no third
power, to balance the two great inherent and
rival powers of society. Whan th« two ele
mentary powers are left to combat each other,
the one strives to subjugate the other, and in
their conflict and alternate triumphs, commo
tion is produced, and private right trampled
down. But introduce the third power, and
harmony -pervades the whole constitution.
Limitations on the legLslative power are use
less, unless a judiciary can enforce them.
The American cqnstitutions, tinlike any
which preceded them, are fomial and solemn
written compacts , of the people with each oth
er. They contain the principles of justice and
equality, regulated and adjusted by the delib
erate and enlightened will of all the people —
which can alone be changed by the people,
and which are supreme and uncontrollable
whilst in force. The constitution of Kentucljy
is a monument of liberty. The people alone
have a right to repair its dilapidations, or alter
its proportions. The powp of the department
al agents of the people is not only preventive ; it
is conservative. To secure this beautiful edifice from the vi
olence of faction or the rashness of innovation,
the people have implaiited in it the principles
of its own renovation, and of its o^n conserva
tion or destruction. The people themselves

have not the political or moral right, to alter or
abolish their constitution, otherwise than ac
cording to its own principles. This it is, that
renders the fabric durable and stable, and will
render it venerable.
If the majority could violate or alter the con
stitution how and when they please, it would
be unstable and worthless. It would then not
be a constitution, butonlylegislativewill. If
the legislature can control or violate it, when
ever ignorahoe or interest may prompt them te
do so, it is only a snare for tl^e unwary and the'
honest; it is a cobweb.
The legislature are not the people; they on
ly represent the people in the faculty bf
making laws, as the judiciary does in that of
expounding and , administering laws'. The
constitution is the will of the people; an act of
assembly is the will of the legislature. And
no act can be law, unless it is in consonance
with the constitution. The constitution is the
authority by which all the departments are
governed, and from which they derive all their
authority. This constitution establishes justice and
guarantees civil_ liberty. Its power is alto
gether moral. Its efficiency consists in the
public sentiment of its inviolability. The
soul which animates it is the people's rever
ence. The cement which holds its parts to
gether is the people's virtue and intelligence.
The citizen should hold the constitution as the
Christian does the decalogrie, sacred and invi
olable. It is worthy of his most sincere hom
age, and requires his most resolute and perse
vering support. Every violation will encour
age recurrent violations; and thus its value
will be diminished, and its principles rendered
inoperative. As long as the people and their
functionaries venerate the constitution in all
its parts, justice is secure and liberty is safe;
the poor man may live in peace, and work
with the buoyancy of hope and the confidence
of security. But only sanction or connive at
one violation of the constitution, and it in
spires hope and confidence no longer. While
it exists, its motto is "nolo me tangere. (touch
me not.) Like virgin purity, once sullied, it
loses its chaste odor and its charms, and in
vites its own prostitution, lixtinguish only one
spark of the vestal fire which burns on its al
tar, and the desecrated flame is no longer holy;
it degenerates iii,to the common element, and
isnomoro sacred or enduring. Listen to the
warning of "Junius," , on tho necessity of
guardin'gthe fundamental law from every vio
lation, however minute or transient:
"One precedent creates another. , Thef Soon
accumulate and constitute law— what yester
day was fact, to-day is doctrine. Examples
are supposed to justify the most dangerous
measures; and where they do nptsuit exactly,
the defect is supplied by analogy. Be assured
that the laws which protect us in our eivil
rights, grow out of the constitution, and they
must fall or flourish with it. This is not the
cause pf faction, or of party, or of any individ
ual, but the common interest of every man."
Excellent sentiment! It sl^puld be engraven

13i

TO THE GOVERNOR ELECT OF KENTUCKY.

on the heart of every tntc friend of justice and
right government. The inviolability of our
constitution is the security Pf every citizen.
If any infraction be sanctioned to the preju
dice of one, the example endangers i he right of
all. Let not the strong exult in their imagina
ry security, and feel indifferent tothe violation
of principles, which are necessary to the de
fence of the weak. He. who is strong to-day
may be weak to-morrow. He who is up to
day may be down to-morrow. He who is now
in a dominant majority, may soon feel the ne
cessity of a refuge to the constitution, which
he has impaired so much, that it can afford
him no protection against the injustice of an
other triumphant majonty. No prudent man
will ever be provoked by passion, or stimu
lated by momentary interest, to prostrate the
barriers of his own security. Let no one think
that any violation of his constitution, under
any circumstances, or for any purpofee, is suf-
ferable. If one violation be tolerated, anoth
er is justified by the example; usage ripens in
to law; and thewhole constitution is supersed
ed; it becomes passive and exanimate.
In questions of private right, the judiciary is
the only, and from necessity, the ultimate ar
biter. If the court in the last resort should
err on a constitutional question, the decision
is valid between the parties. ' But public sen
timent may, whilst it cannot reverse the de
cision, reverse the principle. There may be
constitutional questions which can be decided
only by the people; and their only mode of
deciding them is at the polls. Such is the
great subject of coritroversy now pending, in
relation to the court of appeals. No judicial
tribunal can decide such a controversy. Itis
not a judicial matter — it is political. Wheth
er the "court of appeals" is constitutional or
legal, cannot be definitely determined by "the
court of appeals." Whether the old or the
new court is "the court pf appeals," cannot be
effectually settled by the old or the new
judges. 'Who then, rnUst decide these momen
tous and anomalous questions? , The legisla
ture? Certainly not The controversy has
grown out of an act of the legislature. There
is a collision between the legislative aud judi
cial departments. Shall the legislature decide
its own cause — adjudicate On its own acts?
Attempt to prostrate another and equipollent
department, and then gravely sanctify its own
encroachments? Thepeople who made the coustitution, and
for whom it was made, are the only umpires.
And when they act on such a subject, they
act in their original popular character, and
not in a delegated, legislative capacity — they
act as sovereigns, not as legislators; and the
act is popular, not legislative. If their decis-
, ion be not final, their only resource is to sub
mit, or resume the exercise of their inherent
sovereignty. When a constitutional question
is referred tothe electors at the polls, their de
cision can bo announced by those only whom
Ihey there elected. If senatbrs who had been
elected before will not acquiesce iu such a de
cision, their pertinacity can have no legiti

mate effect in frustrating the -public will.—
That will being the last resort, and being as-
certeined by the only means by which it is as
certainable, and communicated by ther imme
diate representatives, in the only mode by
which it may be communicable, must be su
preme in its authority and inevitable in its re
sults. Who are deputed, in such a case to ex
press the people's will? The senators whom
they had not the power then to elect, or the re
presentatives whom they did elect for the sole
purpose of representing, ahd declaring their
will? If an unconstitutional act were valid
until regularly and formally repealed, it
would be conceded, that before it should be
disregarded, the whole legislative department
must concur in repealing it. But we are not
left in this dilemma. Every legislative act re
pugnant to the fundamental law being void,
whenever the people pronounce it repugnant*,
it is considered a nonentity, and its repeal is
not necessary. And after such a decision by
thepeople, bold must be the man, ahd desper
ate the faction, that would dare to enforce the
unconstitutional enactment. The man and
the party that would thus presumptuously and
perversely act, would deserve to be called en
emies to the peace and liberty of their coun
try, and to be considered traitors to its sacred
cause. You say that the people have not decided
the "judge question." Whatrighthaveyouto
say so? How do you know that they have not
decided it? Did not their own representatives
solemnly declare, that their constituents had
decided that the re-organizing act is unconsti
tutional? And who else can know as well as
they should know? How else will you ever be
informed on this subject?
Yes, sir, the j^eople have decided the great
controversy, and you know it. You in sub
stance admit it in your message, and employ
low cunning and despicable artifice to elude
that decision. You certainly presuine too
much on the ignorance and gullibility of the
people. They are intelligent, sir, although in
electing you, they have encouraged you to per-
severein the belief that they are not. Their
right to settle the construction of their consti
tution (in the only way in which they can do
it, by -voting at the polls,) they will not suffer
you to deny or "compromise."
Your political sins cannot be expiated by
artful or deceitful professions; nor can the
wound which you have inflicted on the consti
tution, be healed by the balm of "compromise."
The people have displayed a "determined
and persevering resistance" to your violation
of their constitution, and in that resistance
they will triumph. The rational and patriot
ic temper lately manifested by them, is encour
aging to tho friends of order, and justice, and
morfdity. It is ominous of a long and bright
career yet to open for Kentucky, of prosperity,
happiness, and just renown. It is a satisfac
tory and consoling proof, that the constitution
is strong, because it shows that that popular
sentiment of reverence for its principles, which
alone fortifies them and gives them activity,

TO THE OOVBBKOR ELECT OP KEKTUOKT.

1S5

is unshaken by the political illuminati, who
have lately been endeavoring to undermine
the' republican's faith, by exhibiting to his
passions "a Circean liberty" — and to invert
thfe moralist's creed, by tempting him with the
sensual allurements of an epicurean philoso
phy. To insure the longevity of our excellent con
stitution, popular virtue and popular intelli
gence are indispensable. These are the bases
of the whole political structure of, a free gov
ernment. Sap these broad foundations, and
the superstructure must fall. With the purest
virtue and highest intelligence attainable by
-degenerate man, he cannot live in society se
curely, without the protection of a good con
stitution — and no constitution can oe called
good, or can accomplish its eijds, unless the
people revere and defendit and every part of
it, as the Palladium of their rights — the cita
del of their safety. "When they manifest this
(disposition, they show themselves worthy of
the boon which constitutional liberty holds out
to her votaries-
Our constitution is emphatically the ark of
¦our political salvation. The principles which
it preserves are to us ci-villy, what spiritually
Sinai's law was to the ancient Jews. All our
virtue, all our wisdom can never enable us to
live as freemen without their supreme guardi
anship. The statesman who 'would propose to live
without a constitution, or under one which
should be subject to the control or execlusive
construction of the law making power, would
be obnoxious to the ridicule and derision which
Plotinus incurred, by proposing to Gallienus,
to establish a city of philosophers to be called
Platonopolis, where the citizens might live
free, under the guidance of reason and philos
ophy, without the restraints of govemident.
Sir, to be free, we must have a free constitu
tion, aud that constitution must be supreme.
It is the people's recorded will, and their ser
vants cannot resist or change it. If a legisla
tive act violate it, a legislative act is not neces
sary to restore it. The people can check the
usurpation, and wipe off the pollution without
legislative aid. And they do both, effectual
ly, whenever they decide at the pplls that the
act of their agents is in conflict with the para
mount law.
"A constitution is a thing antecedent to gov-

ture of a constitution. It is not the act of the
government, but of the people constituting thc
government. It is the body of elements to
which you can refer, and quote article by arti
cle, and which contains the principles on
which the governmeht shall be established,
the manner in which it shall be organized, the
power it shall have, <fec. "Rights or Man."
"The constitution of the state ought tobe
fixed; and since that was first established by
the nation, which afterwards trust-d certain
persons with fhelegislative powerij, the funda
mental laws are excepted from ih.s commis
sion. In short, these legislatsrs derive their

power from the constitution. How then can
they change it, without destroying the founda
tion of theiir authority. "Vattel."
"The omnipotence of Parliament" is Euro
pean — it is English. Itis not American; itis
an exotic, which will not take root or flourish
in the soil of liberty. Against this transatlan
tic principle oUr fathers fought, and Conquer
ing, they have extirpated it. The great prin
ciple of America is the appropriate distribu
tion of the functions of government, among
three coequal departments. The reciprocd
checks of each department preserve an equi
librium, which prevents either from encroach
ment or consolidation. For the want of this
principle, the people of Europe have been
subject to unremitted oppression and frequent
revolutions. Fdr want of it, all the republics
of ancient and modem Europe have been fac
tious and turbulent, and have sunk into anar
chy and eventual despotism.
A judicial department, co-ordinate and co
eval with the others, and to a proper extent in
dependent of them, has never been known ex
cept in these United States. It does not even
yet exist in England. There, there is no writ
ten constitution. Prescription, usage, prece
dent, constitute the English constitution. —
It is invisible, and exists only in the memory
and the heart of England. There, an act of
parliament is the supreme law — and hence the
judge scarcely ever ventures to say that any
act of parliament is void.
But here the judiciary is interposed as an
intermediate check on the legislature. The
judges are bound, "ex-officio," to declare "the
law" — and the people in the constitution have
announced, that their will therein expressed is
the supreme law, and that every thing in op
position thereto is null and void. In contro
versies between individuals in courts of jus
tice, the constitution must govern. It was for
this end thatitwas made, andforthis end that
judges were commissioned. The judges are the
agents of the people, not of the legislature, and
therefore must enforce the constitution, which
is the people's law, in opposition to an unau
thorized act of their agents. Your re-organiz
ing act admits that this is the duty of the
judges, when it provides that, in pronouncing
an act unconstitutional, they shall be unani
mous. To pronounce unconstitutional acts
void, has been the practice of the federal and
state judiciaries ever since the organization of
the respective governments. A fearless, im
partial, and upright exercise of this important
function is necessai^y to the liberty of the citi
zen. A constitution limiting the sphereof leg
islative power, cannot be maintained and en
forced without it. And such a texture and
temperament of mind as will enable judges to
act in this respect properly, should be cher
ished and encouraged.
If English judges had possessed and exer
cised this salutary power, Sidney and Bus-
sell would have lived to enjoy that freedom
for disfendiug which they fell as raai-tyrs. If
this conservative engine of free government
|had been employed in Revolutionary France,

126

TO THE SOVERKOE ILBOT OF KBNTffOXY.

her guillotine would have fallen only on the
guilty, and her soil would not have been
washed with the blood of her innocent and
most worthy citizens. Had its value been
known, Aristides would uot have been exiled,
nor the Gracchi murdered. But the politicians
of ancient, as well as modern times, reason
ed as many of your party now do. They
identified the legislature aud the people — they
considered legislative acts as paramount law,
and viewed the interposition of judicial checks
as inconsistent with the genius of government:
They reasoned delusively, as their melancholy
history proves. And their history would in
time be our history, if the same error should
prevail among us. There is no liberty where
there is not an independent judiciary. There
is no security — no living constitution where
that judiciary has not the power to rescue the
humble or persecuted citizen from the oppres
sion of an ambitious :-nd rapacious faction,
whether in the legislature or elsewhere. With
out such a judiciary, vested with such a pow
er, in vain would the constitution declare —
that the habeas coi^pus shall not be suspend
ed — that juistice shall be administered with
out, sale, denial, or delay-^that no ra^n shall
be punished without a fair and impartial trial
by a jury of his peers — that private property
shall not be taken for public uses without just
compensation — fliat the obligation of contracts
shall not be impF.ired — that ex post facto laws
shall not be passed — that there shall be no at-
tainder or coiTuptionof blood — that there shall
be no titles' of nobility — that all men are free
and equal — that there shall be no established
religion — ^that no man shall suffer for his faith
or be bound to support any sect^ — that the lib
erty of the press and of conscience shall be se
cure. These elements of freedom would all
be abstract and speculative, if there were no
judiciary to arrest the legislature in their at
tempts to violate them— and you and your
"cabal" might then goon, "conquering and to
conquer." "It is urged that the power which can de
clare the acts ot another void, must necessari
ly be superior to the one whose acts may be
declared void. Butthereisno, position which
depends on clearer principles, than that every
act of a delegated authority, conti'ary to the
tenor of the commission under which it is ex
ercised, is void. No legislative act, therefore,
contrary to the constitution, can be valid. To
deny this would be to affirm thatthe deputy is
greater than the principal; that the sei'vant is
above his master — that the representatives of
the people are superior to the , people them
selves. It is far more rational to suppose that
the courts were designed to bo an intermedi
ate body, between the people and tho legisla
ture, in order, among other things, to keep tho
latter within the limits, assigned to their au
thority. The interpretation of the laws is the
proper and particular province of the courts.
The constitutiou is in fact, and must beregard-
ed by the judges, as a fundamental law. It
therefore belongs to them to ascertain its moan
ing, as well as that of any act of the legisla

ture. If there be an irreconcilable varia,ijce'
between the two, that which has the superior'
obligation and validity, ought of course tobe;
preferred, or in other words, the constitution
ought to be preferred to the statute; the inten
tion of the people to the intention cf their
agents. Nor does this conclusion, by any means,
suppose a superiority of the judicial to the les
gislative power It only supposes that the
power of the people is superior to both, and
thatwhere the will of the legislatare, declared
in its statutes, stands in opposition to that of
the people declared in the constitution, the
judges ought to be governed by the latter rath
er than the former. They ought to regulate
their decisions by the fundamental law, rather
than those which are not fundamental. It cah
be of no weight to say that the courts, on the
pretence, of a repugnancy, may substitute their
own pleasure for the constitutional intentions
of the legislature. This might as well happen
in the case of two contradictory statutes, cr it
might happen in every adjudication upon any
single statute. The courts must declare the
sense of the law. The observation, if it proved
any thing, would prove that there ought tobe
no courts distinct from the legislative body,"
Ac, PtJBLIlTS.
Such were the sentiments of the Washing
tons, the Hamiltons, the Madisons, the Jefier-
sons, and the Patrick Henrys cf the revolution.
How different they are from the spurious doc
trines of your "Jefferson," and your "Patrick
Henry," who denominate judges "Kings"
for declaring a legislative act void. All are
"Kings" or "Tories" who oppose you or your
relief legislatures.
By an independent judiciary, we mean a ju
diciary independent of the will of less than
two-thirds of the legislature. Without such
an independence, you might torture, and im
prison, and murder with impunity. No
judge dependent on the whim of abare majori
ty, would dare to resist the unconstitutional
acts of that majority.
How would you like to apply the doctripe of
legislative supremacy , to Congress, and of
tame subserviency and absolute dependence,
to the supreme court of the Union? Would
not state rights be in danger? Might they u'pt
soon be engulphed in the vortex of unhallowed
power? And would you apply to the supreme
court your principles,.of unanimity on afiicon-
stitiitional questions? What then might be
come of state rights and the federal constitu
tion? Might not ambitious men pass acts
which would eventuate in dissolution or con
solidation. The qualified independence of tho judiciary is
thi2 most important feature in the constitution.
Without it, the constitution would be an inert
mass, destitute oflife, or form, or comeiiness.
It would be a chaos of power. But with this
feature in it, it lives and reigns — it is beauti
ful and beneficent. It is this which gives it
harmony and solidity, and endears it to, the re
publican statesman, and will endear it to the
poor tenant of the humble cot. It is this which

TO THB QOVBRKOR BLBOT OF KENTUCKY.

la:

will cheer tho innocent and console the perse-
cuted-^which gives confidence to our industiy
and security to our heai-thS.
It is this strong arm of justice which you
and your party have been striving to paralyse.
It is this great anchor of the constitution
that you are now endeavoring to barter by
compromise. The people love their constitution and will
never, I hope, give up, or "compromise," one
word or syllable or letter of it. They will
guard it from all violation, whether the att?ick
be open or insidious; whether it bein the form
of re-organization, or of "compromise."
Although they have pronounced the re-or
ganizing act unconstitutional, and although
you ought to know it, as you have been so aux-
loiis to ascertain their "will," you still resist
the people and spurn their constitution. I
have very little hope of convincing you of your
duty or your interest. If you were not con
vinced last August, yoK- are au incorrigible
sceptic. In my next number, however, 1 shall
attempt a short argument on the re-organizing
act; and I shall expect to shew you, if you are
not blind, that it is "OBVIOUSLY and PAL
PABLY" unconstitutional. PLEBIAN.

TO THE GOVERNOR ELECT OF KEN
TUCKY— No. vni.
"The necessity of reciprocal checks in the
exercise bf political power, by dividing and
distributing it in different depositories, and
constituting each the guardian of the public
weal, against invasions of others, has been
evinced by experience, ancient and rnpdern."
Washington's Fabjswbll Address.
The lessons of experience ind the maxims
of wisdom, have been wantonly disregarded
by your party, in "ihe re-orgdniiing act." —
Plushed with victory and instigated by ambi
tion, they looked only to ^heir own selfish
ends. The act was passed in n whirlwind of
power. The "night'scene" was riotous and
humiliating. You, and Bany and "Patrick
Henry" and other kindred spirits, were
placed in the midst of your party in the
house of representatives, to exhort them to
courage. You were seen plying them most
earnestly. Many of them seerhed to be shaken
tothe centre of their soiJs,. by the appeals
which had been made and were then making
to them, by the friends of the constitution.
They faultered; many hesitated; some, unable
to Stifle conscience, abandoned you. They
had been addressed in caucus by the federal
attorney and your "u)ould-b^' chief justice.
They had there taken the oath of fealty and
given their adhesion. But as tbe fatal moment
approached, when the constitution was either
to^ triumph ¦ over /our "cabal," or to fall by
your scalping-kniveS and tomahawks, the tim
id and conscientious turnedpale, and felt hor
ror at the deed. To strengthen the weak and

console the contrite, you stood by them in the
hour of trial; you and your minions placed
yourselves, like sentinels, on the floor, to watch
the suspected and prevent their desertion.
Yes, sir, incredible and disgraceful as is the
fact, it is believed to be but too true, that the
governor of Kentucky, some of those parasites
who were to be judges of the legislative su
preme court, he who was to be reporter of their
rescripts, and other expectants, were earnestly
employed on _the floor of the representative
hall, among the members, in midnight session,
by your countenance and conduct, consoling
and stimulating those whose judgments had
been convinced, ahd whose consciences were
awakened by the reiterated warnings of the
constitutional advocates.
The scene resembled a camp night-meeting,
in confusion and clamor; but itlaeked its holy
impulse. Heaven approves the one; Satan
himself, it is thought, presided over the orgies
of the other. An honest member, who had
gone with you as far as he could, and who felt
ittobe hisduty to follow the dictates of his
conscience and judgment, was hissed oh the
floor, for declaring, when his name was called,
that he felt bound to support the constitution,
and that his conscience would not allow him to
violate it; as he had become convinced he
should do by voting for your bill. This hon
orable man had made a speech, and the best
(it has been said) which was made in favor of
the act; but afterwards he was convinced of his
error, and had the magnanimity and firmness
to desert you. This he did not; wish to do. He
postponed it until the last moment when it was
possible. He then paused, and told you pub
licly, that he could go with you no , farther;
that there, he aud you must part; he with his
constitution in his hand, you with yours under
your feet. How much more noble was his con
duct than yours! Obedient to instructions,
mOstof the re-organizers were in the , habit of
going out whenever a speaker on the other side
rose to address the house. Col. Morgan, of
Nicholas, whose seat was next to Mr. Robert
son's, was in the act of going out when Mr.
R. was rising to make his speech against the
act — but at.Mr. R.'s request he remained in his
seat, as an act of personal courtesy — observing,
at the time, that argument, to him, was use
less. That was oh the forenoon of the day on
which the final vote was taken. He listened,
and was convinced. This was the man who
was hissed by his party for having a con
science. If others, who felt as he did, had
had possessed the energy and self confidence
necessary for an escape from the fear of your
vengeance and the trammels of party, what
calamities would they have averted from our
devoted state! But the fate of your bill had
been sealed in caucus, and all efforts to defeat
it, or even retard its progress, were unavailing.
It was hastened with a precipitation unbecom
ing so grave an occasion. The previous ques
tion was moved, lest the friends of the consti
tution should be able to break your caucus
spell, by the native force of argument. You
all became disconcerted and alarmed.

You

198

TO THE GO'V^RNOR BLBCT OF KEWTUOKT.

were afraid to hear more. And it has been pub
lished, that you prompted the call for the pre-
¦vious question! What say you — guilty or not
guilty? If you will not answer, I will answer
for you — guilty beyond a doubt.
The member who made the call did not un
derstand its objects or its effects; and as soon
ashe was notified of them, hepromptly with
drew his motion! You encouraged your party
to oppose an adjournment, and to /orcc the bill
through the house, contrary to the usual forms
of legislation. You were afraid that remon
strances from the people would come in on the
next day. They did come, in tones of thun
der. But, lest a reconsideration might be call
ed on the next day, you had signed "the long
bill" before the house was, next morning, or
ganized. How was this done? Was the bill
examined and enrolled before it passed? And
did you approve and sign it without reading
it? Why this haste? 'Why this management?
Why this shuffling and intriguing? You were
about to consign to the tomb, the constitution
of your country. Your triumph was like that
of an Attila, a Ghengiskan, or a Tamerlane.
Your party resembled a conquering army.
The sardonic grins and bacchanalian revels,
which graced your triumph, showed that your
victroy was Vandalic, and yourspoils piratical
The constitution which you supposed you
had laid low, has risen with power. Its resur
rection portends your doom. It is redeemed
and regenerated by the voice of the people.
That same voice will salute your ears in ac
cents of thunder. The mangled constitution
stands up in judgment against you. 1 now
hold it before you. Look at it. View its wounds
— if you are still an infidel, "feel the side which
you have pierced," and then acknowledge that
it was slain, but lives again — was buried, but
has risen, to bless and to save.
The constitution either ordains the existence
and defines the duration of the court of ap
peals, or it is silent and inoperative in relation
to that tribunal. The supreme court either de
pends on the will of the people in convention,
or on the will of their agents in the legisla
ture. If it be of constitutional origin the leg
islature cannot abolish it. If it be the off
spring of legislation, your act of assembly is
valid. The conclusion thus drawn from these
hypothetical premises is logical and inevita
ble. And consequently the judges are either
in or, out of office, as the fact shall be ascer
tained to be, whether the "court" originates
from the constitution, or from an act of assem
bly. For that which is purely legislative, is
under legislative control — ami that which is
generated by the constitution, is above legis
lative power.
The court of appeals is the head of the ju
diciary department. The governor is the head
of the executive department. The constitution
declares that "the powers of the government of
the state of Kentucky sh.ill be divided into
three distinct departments, and each of them
confided to a separate body of magistracy, to-
wit; those which are legislative to one; those

which are executive to another; and those
which ARE JUDICIARY TO ANOTHER." It glso
declares, that "the legislative power of this
commonwealth shall be vested in two distinct
branches"-"the supreme executive power of the
commonwealth shall be vested in a chief mag
istrate" — ^the judicial power of this common
wealth, both as to matters of law and equity,
shall be veste.d in one supreme court, ¦which
shall be styled THE COURT OF APPEALS
— and in such inferior courts as the gkneeaI
assembly may, from time to time erect^and es
tablish." The language which has been quo
ted is plain. It is susceptible of only one ra
tional construction. There can be no diversi
ty — no unintentional misrepresentation.
The functions of government are distributed
among three departments of agency. Each
department is designated by the constitution
— its province defined — its duties devolved.
Each class of agency is ordained, or in other
words, required to exist, by the constitution.
It declares that there shall be three distinct
departments. Then there must be three. It
declares that the legislative power shall be
vested," &c. — "that the executive power shall
be vested," <fec. — "that the judicial power shall
be vested in a supreme court," &c. The lan
guage is similar — ^the import and effect must
be the same. This is undeniable.
Does the constitution ordain or establish the
legislature? Then it ordains or establishes
the executive. If it ordains or establishes the
legislative and executive, by a parity of rea
son, it ordains and establishes the judiciary.
The men who shall fill either of those depart
ments are not designated by the constitution.
They are otherwise appointed. The depart
ments, the offices, exist without the incum
bents; the former are created by the constitu
tion; the latter by election or appointment, un
der and according to the constitution. The
legislative depaiiment existed, before the mem
bers who have filled it were elected — the ex
ecutive existed before a governor was elected —
The supreme court, as rhe head of the judicia
ry, existed before judges were commission"
ed. The departments were all esteblished by
the constitution. They were co-eval with it,
and are allco-etaneousand co-existent This,
too, is indisputable.
The office or station of a legislator, and the
member of the legislature, are two distinct
things — so is that of the executive and the
governor who fills it; and so is that of the ju
diciary and the judge who is appointed to ad
minister the laws. If there are no members
of the legislature, there is still a legislative
department. If the governor dies, me office
lives. If the judges die or resign, or shall he-
removed, tiie court of appeals survives that by
which its bench has beeu vacated. The legis
lature may remove the incumbente of eitiier
department from office, but they cauuot abol
ish either of the departments-^and they have
as much power to aoolish one as another, and
no more. Any attempt to destroy either would
be unconstitutional. The reason, and the on-

TO THE GOVERNOR ELECT OF KENTUCKY.

129

ly reason, why they are all three ordained by
the constitution, is that the people assembled
in convention, were unwilling to confide the
organization of their political machine to their
legislative department; they knew that three
departments, with the power and the toill to
check and countercheck each other, and there
by produce harmony and prevent vielence,
were indispensable to the enjoyment of liber
ty and security. And they therefore construct.
ed and balanced against each other, three
organs of government; and have interdicted
the destruction of either by any power inferior
to that which gave them being-.
The constitution organizes the government,
and hence is called the organic law. It con
structs the entire machinery of government,
and leaves to the people and legislature the
discretion amd power of giving it impulse and
supplying the means for continuing the con
cord of its movemente, and the unison and ef
fectiveness of its, operations. It can never
move until the people give the impetus. Each
department must be put into Operation, by the
act of the people, either at the polls or in the
legislature. Although the executive depart
ment is created by the constitution, there can
be no governor without an election by the peo
ple. 'The legislative department exists iu the
constitution, but until an election by the peo
ple, there can be no legislature. The court of
appeals is created by the constitutiou, but
there can be no judges of that court, until the
people, through their legislature audexecutive,
shall designate the number of judges who
shall fill the court, and shall give them com
missions. But when a governor is elected, he is in
office under the constitution, and his office can
not be abolished by the legislature, nor him-
selfjremoved except by impeachment. So when
a member of the legislature is regularly elect
ed, he holds his seat under the coustitution.
His station or office cannot be abolished, dur
ing his term, by the legislatuie. 'He may be
expelled, but his vacant seat will be again fill
ed — rit was only vacated by the expulsion of
its incumbent, not annihilated. So too, when
ever judges are commissioned for the supreme
court, they are in office according to the con
stitution. The court is ordained by the con
stitution and cannot be abrogated, and the
judges can be removed from the court only by
impeachment or address. Are there any other
modes known in the constitution?
The number of members who shall at any
particular time constitute 'the legislature, is
not fixed by the constitution. The legisla'-
ture,from time to time, may regulate the num
ber of its members, so that it be not less than
the minimum nor more than the maximum
prescribed in the constitution. When the
legislature declares, by an act of their own,
that their body shall consist of a certain num
ber, (for example, 75 in one branch, and 25
in the other,) and when the people have elect
ed that number of represent-atives, the power

Tepeal of tho act regulating the number can
affect the right of those who had been elected
under it, to their sea'cs and their privileges.
When the legislature have designated the
number of judges w;ho shall occupy the su
preme court, and the governor and senate
shall haVe appointed men to fill the offices, the
appointments cannot be revoked by the gov
ernor; nor can the offices be abolished while
they »re filled- The constitution devolves on
the legislature the duty of giving facility and
full effect to the court of appeals — but not the
power of its creation or abolition ; this the peo
ple have wisely reserved to themselves. A
repeal of any act or acts of Assembly regulat
ing the court of appeals, can have no more ef
fect on the existence of the court, or the ten
ure of its offices, than the repeal of an act reg
ulating the election of members, would have
on the existence of the legislature, or on the
seats of the members elected in pursuance of
the act. In each case the legislature would
have the right to repeal its own acte, but in
neither would the repeal operate retroactively,
so as to ajSect private or official rights acquired
under the repealed act or acts; these are vested
aud secured by the constitution.
The constitution requires that there shall be
a legislature; that there shall be a governor;
that there shall be a court of appeals. Must
rhey then not all exist as long as the constitu
tion shall exist? Can either be abolished by
rhe other two? Gan the legislature abolish the
..'xecutive? Can they abolish the court ofap
peals? If they can destroy the one, they
have the same power to abrogate the other.
The legislature or the executive may, by
perverseness, produce an interregnum. By
refusing to pass laws, or to execute them
when enacted, the legislature or governor may
5uspend the operation of the constitution, but
they cannot destroy its existence. They may,
jointly or separately, prevent the ajipoiiitment
of judges for the supreme court; but they can
not abolish the supreme court.
As thejudges, when appointed, areentitied
to their offices during good behavior, "and the
continuance of their court," and as the court
of a.ppeals cannot be abolished by act of as
sembly, it follows irresistibly, that whilst the
constitution shall continue to exist, the offices
cannot be taken from the judges; nor can the
judges be removed from the offices, except for
misbehavior, and then only by impeachment
or address by two-thirds of both branches of
the general assembly. So says the coustitu
tion. Is it the constitution, or is it an act of as
sembly, which requires that there shall be "one
supreme court, to be called the court of ap
peals?" Is it the constitution, or an act of as
sembly, which declares that there shall be a
legislature and an executive? Is it the consti
tution, or an act of assembly, which devolves
on these three depositories of power their re
spective portions and kinds of authority? Even
you, sir, will admit — ^ybu are bound to admit

which was necessary to fill the legislature — ^that these are all fundamental principles,
has been, for the occasion, exhausted, aud no I which constitute the very essence, and life,
17

130

TO THE GOVERNOR ELECT OF KENTUCKY.

and organization of our republican govern
ment. The constitution establishes three distinct
departments. What are they? Is tMe legisla
ture one? Is the executive two? What is the
third? Is it not the judiciaiy? And how can
it be pretended, that one of the three is de
rived less from the constitution than the oth
ers? If there be one which does not depend
for its existence on the constitution alone, and
which may be suspended or destroyed by the
others, then it is a sophism to say that there
are three departments; there would be only
two constitutional departments; the third
would be legislative.
The legislature cannot change the "frame
work" of the government. They derive their
authority and existence from the constitution.
They cannot derange the organization of the
departments. They can neither create nor de
stroy them. These are all three as permanent
as the constitution itself; otherwise, they are
not established by it, aud are not the depart
ments which it ordains and creates.
Can the legislature abolish their own depart
ment? Can they abolish the executive? To
propound such questions seriously to a man of
common sense, would insult him. It would
argue the suspicion that he was either a fool
or a knave. What then must be thought, and
may be said of him who insists that the legis-
tature can abolish the court of appeals, the
very head and soul of the judiciarjr, which is
declared to be the third department? Such a
man could not maintain his title to common
sense, nor to common honesty, until he could
prove that three departments meant two — that
the judiciary is the legislative aud vice versa.
Why does the constitution create three de
partments? Is it that each may be so far in
dependent of the others as to check their ab-
berations, and yet so ananged relatively as to
preserve their mutual rights, and the harmony
of all. The legislature aud governor may con
cur in passing unconstitutional acts; for in
stance, acts establishing a religion; for destroy
ing jury trials; for muzzling the press; for dis
franchising citizens who are not freeholders.
These usurpations will be harmless, if the ju
diciary be honest and faithful. The acts of as
sembly can only be enforced by the courts. It
is therefore necessary that they should be so
far independent of the legislature, as not to
be afraid to resist their encroachments on the
people and the people's constitution. For this,
and this alone, the people established a third
department. rhehistoi^y of the world proved the necessi
ty of this third department. Liberty demand
ed it. And if the people in convention had
not felt the necessity of establishing it, and
rendering it as stable as either of the others, or
as the constitution, they would have left to the
legislature the power to establish a supreme
court or not, as they should deem expedient,
and the power to abolish one when created, as
in the case of inferior courts.
But they have said that "the judicial power
shall he vested in one supreme court, and in

such inferior courts as the legislature may,
from time to time, erect and establish." They
have thus confided to the legislature the cre
ation of whatever inferior courte their wisdom
and experience may point out as proper.
They may erect circuit courts, district courts,
chancery courts, quarter session courts, or any
other subordinate courts. They may substi
tute one system of inferior courts for, another,
without control or limitation. But there shall
be one supreme court called the court of ap
peals, with the power and will to revise, and
correct, and control the legislative and inferior
couri;s. This shall be, whether the legislature
approve it or not.
If the convention had intended that the
court of appeals should be subject to legisla
tive control in every respect, they would have
left the legislature as free in relation to that,
as they have left them in relation to the infe
rior courts. But they intended that there
should be one court not dependent on a major
ity. The legislature established circuit courts;
the constitution established the supreme
court. The constitution requires that there
shall be a court ofappeals — it does not require
circuit courts. The one must^exist; the other
may or may not. The reason why one must,
and the other may exist, is, that the constitu
tion ordains the one, and therefore it cannot
be abolished, and the legislature creates the
other, and therefore can abolish it.
Allow me to present to you the sentiments
of Virginia on this subject. I will do so by
giving you the opinions of Judge Tucker,
which were the opinions of the judges, law
yers, legislators aud people of his proud and
enlightened state. They are as follows:
"These departments, as I have before ob
served, our constitution declares shall be for
ever separate and distinct. To be so, they
mu.st be independent of one another, so
that neither can control or annihilate the oth
er. The independence of the judiciary results
from the tenure of their office, which the con
stitution declares shall be during good beha
vior. The offices which they fill must, there
fore, in their nature, be permanent as the. con
stitution itself, and not liable to be discontin
ued or annihilated by another branch of the
government. Hence, the constitution has pro
vided, that the judiciary depai'tment should be
so arranged, as not to be subject to legislative
control. The court of appeals, court of chan
cery and general court, are tribunals expressly
required by it. These courts can neither be an
nihilated nor discontinued by any legislative
act; nor can the judges of them be removed
from their offices for any cause except a'breach
of their good behavior.
"But if the legislature might at any time
discontinue or annihilate either of these courts,
it is plain that their tenure of office might Tie
changed; siuce a judge without any breach
of good behavior, might in effect be removed
from office, by annihUating or discontinuing
tho office itself.
"The judiciary can never be independent so
long as the existence of the office depends up-

TO THE GOVERNOR ELECT OF KENTUCKY.

131

on the will of the ordinary legislature, and
not upon a constitutional foundation. Hence
arises a most important distinction between
constitutional and legislative courts. Thc
judges of the former hold an office co-existent
with the government itself, and which they
can only forfeit by a breach of good behavior.
The .judges of the latter, although their com
mission* should import upon the face of them,
to be during good behavior, may be at any time
discontinued from their office by abolishing
the courts. In other words, constitutional
judges may be aa independent branch of the
government; legislative judges must ever be
dependent on that body, at whose will their
ofiices exist.
"If the principles of our government have
established the judiciary as a barrier against
the possible usurpation or abuse of power in
the other departments, how easily may that
principle be evaded, by converting our courts
into legislative, instead of constitutional tri
bunals?" Such are the sentiments of the most eulight-
enedjurists and republican statesmen; such are
Virginia doctrines, and such are American
principles. To multiply arguments on this
subject wauld be useless. The principle for
which I contend is almost self-evident. He that
doubts inight as well, with Hume, doubt the
existence of a God; or with Berkley, deny the
existence of matter. Like them, before he can
doubt, he must distrust the elements of all
reasoning, intuitive sentiments of his mind,
the evidence of his five senses. The constitu
tion is so plain, its objects so manifest, that it
would be difficult, if not impossible, to eluci
date this great principle by argument. 1
have only attempted a very crude and hasty
outline. I shall add but little to it, lest by
multiplying words I should darken counsel.
If you had intended only to add four judges
to the court, so much of your act as was neces
sary for that purpose, although inexpedient,
would have been constitutional. But this was
not its object. You designed by it to remove
the "old judges." Your party could not
agree during the pendency of the bill, on any
precise construction of It. Some admitted
that it could not have the effect of removing
the judges; others insisted that it would "re
organize" the court, and thereby expel from it
those who then filled it. The senator who in
troduced it in the senate conceded that it
would not remove the "old judges," but de
clared that by withdrawing their salary aud
placing over them four others to control them,
they would be compelled to retire. After the
legislature adjourned, your party had not
agreed on what construction they should give
the act. Seeing that the court of appeals
could not be abolished, many of them argued
that the court was only "re-organized," and
thatby this magical process, the judges were
reduced to ths stations of private citizens.
Even the act itself does not purport to be an
abolition of the court - On its face it pnly re
peals certain acts of assembly regulating the
courts, and all acts allowing salary. This is

a tacit admission by yourselves, that the
court could not be abolished.
But finding that the constitution provides
that thejudges shall hold their offices during
good behavior, "and the continuance of their
court," ycu were compelled either to admit
that they were still in office, or that their court
had been abolished. And then you were
driven to a dreadful alternative. In this ex
tremity, you chose to contend that the court
was abolished. Yes, sir, 'in your own mes
sage you have taken that bold and alarming
gi'ound. The following jis your language: —
"The majority now deemed it necessary to re
sort to their constitutional power of abolishing
the court, and establishing another composed
of other men. That they had this powerthey
coulcl not doubt, because the constitution had
not brought any such court into existence, but
the first legislature of Kentucky had esteb
lished it, because the power of changing, and
even re-organizing it, had been once before ex
ercised by the legislature. Because the su
preme court of the United States, as avowed
by the judges themselves, was created by
congress, and because the ablest statesman in
the latter body had declared that the supreme
court was as much the creature of legislative
power, as the inferior courts." Thus you ar
gue before the face of the world, and in the
very teeth of irrefragable testimony, to convict
your argument of falsehood, and yourself ,of
wanton misrepresentation. Your main posi
tion is iodefeusible, and you know it. Your
reasons are all perversions of the truth, and
you cannot deny it.
What, sir, did you abolish the court of ap
peals? Did your re-organizing act dare to in
timate such a monstrous import? Suppose it
had said in plain English, "the court of ap
peals is hereby abolighed," would not all
America have been astounded? If you can
abolish the court for one moment, can you not
abolish it forever? And where then will be
the third department? Where, and what
then will be your constitution? Your legis
lature will be omnipotent; your courts willbe
their servile tools and the instruments of their
ambition. You may change your courts and your judges
every year, and give to the judicial office a le
gislative instead of a constitutional tenure.
Then, sir, in the language of Mr. Jefferson,
would "all the powers of government, legisla
tive, executive and judiciai-y, result to the leg
islative body." Aud he warns us that "the
concentrating these in the same hands, is pre
cisely the definition of despotic government."
He tells us also, that "it will be no alleviation,
that these powers shall be exercised by a plu
rality of hand s, and not by a single one. On e
hundred and seventy-three despots would
surely be as oppressive as one. Let those
who doubt it turn their eyes on the republic of
Venice. As little will it avail us that they
are chosen by ourselves. An elective despot
ism is not the government we fougiit for, but
one which should uot only be founded on free
principles, but in which the powers of govern-

132

TO THE GO'VERNOR ELECT OP KENTUCKY.

ment should be so divided and balanced
among several bodies of magistracy, as that
no one could transcend their legal limits ¦w;ith-
out being effectually checked and restrained
by the others."
Mr. Madison admonishes us that "the accu
mulation of all powers, legislative, executive
and judiciary, in the same hands, whether of
one, a few, or many, and whether hereditary,
self-appointed or elective, may justly be pro
nounced the very definition of tyranny." He
notifies us also, that "the legislative depart
ment is every where extending the sphere of
its activity, and drawing all power into its im
petuous vortex."
In the celebrated letters of "Publius," we
find the following political lesson: "The com
plete independence of the courts of justice is
peculiarly essential in a limited constitution.
By a limited constitution, I mean one which
contains specified exceptions to the legislative
authority; such, for instance, as that it shall
pass no bill of attainder, no ex post facto laws,
and the like. Limitations of this kind can be
preserved in practice no other way than
through the medium of the courts of justice,
whose duty it must be to declare all acts con
trary to the manifest tenor of the constitution
void. Without this, all the reservations of
particular rights or privileges would amount
to nothing."
Now you see some of the reasons why the
convention established three departments, and
why they declared that "there should be a
supreme court," <fec. And yet, sir, you boldly
declare that this court has been abolished by
act of assembly ! The simple fact that this
Courtis established as a check on the majority
of the legislature, would, of itself, unanswera
bly prove, that it is not responsible to or de
pendent on that majority. You say, in de
fence of your act, that the legislature have
heretofore set ua precedents. I deny it, and
challenge you for the semblance of proof. You
know that no act of assembly ever turned a
judge of the supreme court out of office.
You say that the supreme court of the Union
has acknowledged its establishmeht by act of
congress. Do you believe this? Do you not
know that in the late case of Osborne v,s. tlie
United States, the supreme court decided that
"the constitution establishes the supreme
court, and establishes its jurisdiction."
You say, that congress has removed from of
fice federal judges, by ordinary act of legisla
tion. True; but what judges? Were they
judges of the supreme court, established by
tha constitution, or were they judges of inferi
or courts, created by act of congress? You
are not so stupid as not to perceive the dis
tinction between the two casus, nor so ignorant
as not to know that it was these inferior courts
¦which congress abolished. Who ever attempt
ed to abolish the supreme court? The man
who should ever propose to do it would be dis
graced. Mr. Jefferson, whose private letter
your party published, and grossly perverted,
expressly declares therein, that judges of the

supreme court can only be removed by im
peachment. You say that the ablest , statesmen in con
gress declared that the supreme court was as
much the creature of legislative power as infe
rior courts. Who were they? Giles was (I
pelieve) the only man who ventured to utter
^uch an absurdity. The federal party resist
ed the right to abolish inferior courts, by a,?-
Buming an analogy between them and the su
preme court. The argument was imposing,
and the republican party combatted it, by ad
mitting that judges of the supreme court
t;ould not be legislated out of office, nor their
pourt abolished, because it, (like ours, and by
the same language) was ordained by the con
stitution ; but at the same time insisting that
there was no analogy between the inferior and
supreme courts. They said that the supreme
court, being established by the constitution,
could not be abolished by congress; but that
the inferior courts, being created by congress.
Could be repealed. All this you know; and
jret you publish to the world in your message,
that congress has exercised the same power
which your party has ¦sttempted to exert, and
that the ablest statesmen have contended that
Congress can abolish the supreme court!
You say that the constitution did not bring
the court of appeals into existence, but that
this was done by the first legislature of the
stale. Does the act of the legislature create the
court? Does it not acknowledge its anterior-
existence? Do not its provisions pre-suppose
its constitutional creation? What legislative
act established the tourt of appeals under the
donstitution of '99? This constitution recog
nizes and confirms in office the former judges
df that court. And by what legislative leger
demain can they be removed, without be
ing convicted by two-thirds, of misbehavior?
The constitutiou did not bring YOU into be
ing as governor, but it brought your office into
being. But lastly, to cap the climax of your blun
ders and mistakes, you assert thatthe majority
abolished the court and established another
composed of other men. Here you admit that
it was not the court, but the men who were
abolished. You confound the court with the
judges of the court. The majority established
another court, composed of other men! that is,
the judges constitute the court, and by re
moving them tho court is abolished, and by
establishing another court they arc removed.
In this precious confession, you either be
tray your inexcusable ignorance, or show tho
cloven foot of "re-organization." You have
surrendered the question, sir. The co^irt is
not abolished, and consequently the judges
.are now in office. And ,so say thepeople.
"The power of king, lords and commons is
not an arbitrary power. They are the trustees,
not the owners of the estutc' The fee simple
IS in us." This is the opinion of Junius; and
ihold it to be orthodox, the opinion of VVil-
Ijs Alston to the contrary notwithstanding.
When the people who know who this Willis
ALtou is, and how you extorted his puerile

TO THE GOVERNOR ELECT OF KENTUCKY.

133

and fulsome letter, they will know how to ap
preciate his statements. And when they
learn that he is almost the only man in the
union, out of Kentucky, who holds those wild
opinions; when they hear of the innumerable
letters from other, and wiser, and better men,
contradicting his assertions, and expressing
the opposite opinion, they will know how to
estimate your folly and your motives for pub
lishing his rodomontade. Mr. Alston's puny
assaults will not shake our constitution, nor
change our opinions. The one is stable; the
others are derived from higher sources than
Alston's ipse dixit. We derive them from
Grod, from Washington, from Madison, from
Jefferson, from our fathers of the revolution,
from our experience and our constitution.
Were I a Lycurgus, I would swear the peo
ple by their religion, their household gods and
the graves of their fathers, never to violate
one Jletter of their constitution. Iwould en
join on them as a sacred duty, to treat as their
enemy every man who would attempt the in
vasion of its principles. Our fathers ven
tured their lives for the privilege of making it,
and we would be degenerate and apostate
sonsif we would not offer up ours in its defence.
If we suffer its degradation , we are unworthy
of its blessings; unworthy of the patriots who
gave it to us as our richest inheritance, and
unworthy ot the millions now living, and the
generations yet unborn, whose prayers are as-
cehding, and will, ages to come, ascend to
heaven, invoking the smiles of Providence on
the cause of constitutional liberty throughout
the world. A PLEBIAN

TO THE GOVERNOR ELECT OF KEN
TUCKY— No. IX.
"In wisdom, steadiness and judgment, the
people have greatly the advantage of PRINCES.
For this reason, the voice of the people is com
pared to the voice of God."
¦Whatever' you may say, or whatever you
may think of tho people's constitution, you
are only one of their servants, and should sub
mit to their superior judgment, and obey their
voice. The governor who shall contumacious
ly defy the .people's deliberate will, and arro
gate the rightto control it, would, if he could,
be a tyrant.
The people who made the constitution, and
for whom alone it was made, ought certainly
tobe presumed the best judges of the ends for
which it was designed. They ought to know,
whether by that constitution, three depart
ments of government were established, or not.
They certainly do know whether each depart
ment was instituted as a check on the others,
or whether two of them were created only to
overrule and subjugate the third. And, sir,
they do know, and itis their interest and duty
to know, whether the third departinent is
theirs, or the creature and property of their
governor and legislature. Yes, sir, they know

better than you, or little Willis Alston, wheth
er their court of appeals is the sturdy off
spring of their will in convention, or the rick
ety bantling of executive and legislative pro
creation. You have endeavored to adopt this court as
your own, and to subject it to your tutelage
and dominion, But the people have detected
you in the stealth. They have caught you
fllagranti delicto, and after a patient and im
partial trial, they have passed sentence of con
demnation on you and your accomplices in the
illicit deed.
They say that the court of appeals is, and
shall continue to be, under their paternal care,
and that you shall have no centrol over the
court, ami no other control over the judges of
the court than what they have given you in
the constitution. If you are not satisfied with
what is thus given, you must wait until the
people revoke their letter of attorney, and by
a new or amended gi^aiit, confer on you more
power. If you have no respect for the patriarchal
counsels of Washington; if you will not yield
to the concurrent opinions of Jefferson, of Mad
ison, of Hamilton, of Henry, of Mason, of Jack
son, of Nicholas, and the host of patriote and
statesmen who achieved our independence,
and consolidated our liberty, and the blended
effulgence of whose names fills up the "milky-
way" of our political hemisphere; if yori re
gard not the sentiments of other states; if you
will not listen to your Shelby, your Bowman,
your Taylor — all of whom were soldiers' of the
revolution, and the last of whom having been
a member of the two conventions of Kentucky,
observed, in an apostolic address, last session
of the legislature: "Mr. Speaker, some gentle
men have said, they believe the re-organizing
act is unconstitutional; sir, I KNOW ITTO
BE SO." If you will not respect the opinions
of the soldier or the statesman, of the living or
the dead, there is a tribunal before whose au
gust bar your stubborn neck must bow, and
your stiff knees must bend; the people of Ken
tucky will be respected; their voice has been
heard, and it will be obeyed. For although
you are high in office, you are but man, weak
man, frail and fallible. Emperors and govern
ors are often very weak men, and are seen to be
so when stripped of the factitious glare of
power: "Unbounded power and height of gre.itness,
give . .
To kings that lustre which we think divmo;
The wise who know them, know they are but
men.
Nay, sometimes weak ones, too."
Motives of ambition may prompt you; the
people feel none such. It may be your interest
to do wrong; it is always theirs to do right.
This is proven by the nature, and very exist
ence of our free institutions, aud is fortified by
our experience. If these evidences of popular
rectitude are not satisfactory to you, allow ms
to add the authority of a great name. In Ga
te's letters, you may find ou this subject the

134

TO THE GO'VEIWOR ELECT OP KENTUOET.

following just and enlightened sentiments:
"It is certain that the people, if left to them
selves, do generally, if not always, judge well.
They have their five senses in as great perfec
tion a-s have those who would treat 'chem as if
they had none. And there is oftener found a
great genius carrying a pitchfork than carrying
a white staff'.
"The people have no bias tobe knaves. No
ambition prompts them; they have no rivals
for place, no competitors to pull down; they
have no darling child, pimp or relation to
raise; they have no occasion for dissimulation
or intrigue; they can serve no end by faction;
they havenointeresfcbut the general interest."
I'his language is forcible, and applies well.
You might even yet profit by it, if you will
consider it seriously and apply it justly. For
not heretofore having done so, you have
blundered and wandered far from the path of
duty, of honor and of patriotism. Come back;
relent; submit to the people, and assist (as it
is your duty to do) in carrying their will into
effect, and you may do something towards les
sening that weighty burtlien of responsibility,
which your boldness, and vanity, and temeri
ty have thrown upon your shoulders. But on
ly yield to your temper; persist in your oppo-
.s'ition to the people; disregard tho warnings of
wisdom and the suggestions of duty — do this
if you choose, but recollect that you are now
told, that if you do, your mad career will sink
you, not perhaps as low as Lucifei^ fell, but as
justly and as hopelessly. And then could you
complain, if the political historian should say
of you, as Isaiah said of the prince of evil —
"How art thou fallen from heaven, O Luci
fer, son of the morning! How art thou cut
down to the ground, which did weaken the na
tions! Foi thou hast said in thy heart, I will
exalt my throne above the stars of God; I will
sit also upon the mount of the congregation, in
thc sides of the north. I will ascend above
the heights of the clouds; I will be like the
Most High. Yet thou shalt be brought down
to the grave, to the sides of the pit. They
that see thee shall narrowly look upon thee,
and consider thee, saying, 'Is this the man
that made the earth to tremble?'"
Such would bo the fate of any governor, who
should ever presume to set himself up above
the people who made him, and exalt himself
and statellites above the constitution, which
was made to guide and govern him and them.
We will have no dictator. We are the mas
ters; you the servant. We have the right to
govern, aud we will govern. You shall not,
¦ with impunity, resist our construction of our
constitution. We, the people, ha\'C declared, that, we, and
not you or your legislature, spoke into being
the court of appeals; that it is constitutional,
not legislative; that its origin is coeval with
the constitution; that its existence was from
that date actual, not potential; that it has de
pended on the f.tability of the constitution,
and not on the vacillations of legislative will.
In fine, sir, we, tho umpires of your own
choice, and the arbiters of the last resort, have

decided that the court of appeals cannot bo
abolished, except by a new convention, and
that necessarily, your act of reorganization has
no eftect on the judges of that court. And if
our opinion were destitute of the auxiliary
support of the plain import of the constitution,
and of the almost unanimous concurrence of
the politicians and people of the whole union
— if it stood alone, unpropped, it is enough
that it is our opinion — the decision of the peo
ple on the meaning of their own form of gov
ernment. This ought to close all conti'oversy.
It is stronger than argument; it is ovel-whelm-
ing authority.
Determined, however, to pursue your career of
self-aggrandizement, and to convince the peo
pie that you, and not they, ought to rule, in
thc extremity of your madness, you import
foreign aid. You invoked and have obtained
the assistance of Willis Alston, of North Car
olina. You hope, with his assistance, to rev
olutionize Kentucky, and overturn her con
stitution. If we are yet to learn our political cate
chism, I pray you, sir, for the honor of Ken
tucky, for your own dignity, give us a tutor in
our own borders. If you cannot do this, I be
seech you, most kind governor! to import one
from 'Virginia or Pennsylvania; from Missouri,
any where, sooner than from "the North
State." Or, if we must have a Xorth Caroli
nian, then, sir, I implore you, to employ any
other preceptor than WiU is Alston. 1 have an
insuperable repugnance to learning politics,
or any thing, from Willis Alston, lu this I
may be too fastidious; but 1 revolt at the idea
by instinct. I do not know that I could ex
plain to your satisfaction, the reasons of my in
vincible hostility to Mr. Alston's tuitiou. —
AYith me it is an aft'air of sentiment, more
than of reason; it is a sort of "je ne sais quoi,"
I feel it strongly , but cannot describe it. Lest,
however, vou may ascribe improper motives
to my remonstrance, I assure you that I am
not influenced by a recollection, that Mr. Al
ston submitted to a horse-whipping by Johu'
Randolph; nor by any suspicion that he may
be t.he son-in-low of Aaron Burr, or a relative
of Aaron Burr's son-in-law. In whatever de
gree of propinquity he may stand to Burr's
son-inlaw, he might still be honest, because it
has been said, that the son-in-law of Burr
was an lionorable and accomplished man.
But 1 will not be instructed on my own consti
tution, nor lectured on my political duties bv
Willis Alston.
Mr. Alston is certainly very pragmatical.
What right has he to obtrude his arguments,
his censures, or his advice, on Kentucky?
Whatright had you to employ him as our dic
tator or instructor? .""ire you not sufficiently
dictatorial? And have you not around you
many idle men, who are tar better qualifiecl to
beyour assistiiiirs, than AVillis Alston? Siri
to be plain with ycni, wo have "set up" for
ourselves, ;uid do not intend to be ruled by
you, jior taught by any foreign or domestic im
postor. We have been under your guardian-

TO THE GOVERNOR ELBCT OF KENTUCKY.

135

ship too long already. "We have paid dear
ly for the whistle?"
In sober seriousness, sir, paidon me for in
quiring how you procured from Willis Alston,
his "set speech" on our goverment, our parties,
and your message? Did you ask him to make
a speech for you? You would gratify the cu
rious hy publishing your letter to Mr. Alston,
which brought forth his long and silly letter.
Did you publish his letter without his author
ity. If you did, he ought not to complain,
because he might have known, that there was
danger of its exposure by you, unless you
could have believed that it contained "cabinet
secrets." I am disposed to believe that the letter was
writtjcn for publication ; it caiTies on its face
evidence of careful preparation for the public
eye. If it were written for publicatien, Mr.
Willis Alston has been guilty of an impudent
intrusion on the people of this state, and de
serves castigation. When he becomes politi
cal knight-errant, he must expect nothing but
derision and contempt. Was Mr. Alstott's
letter the only one which you have been able
tojjprocure in all North America? I suppose
so, for if you had another, you would have lost
no time iu giving it publicity.
Mr. Alston has rendered himself very ridic
ulous, by the letter which he has written; and
you are no less so, for extorting it, and expos
ing it by publication. So far as he has dealt
in assertion, he is evidently and notoriously
incorrect. When he attempts to reason, he is
not more successful. He has shewn that he is
in total ignorance on the entire subject of his
letter. Our judicial controversy is not like that
which was agitated in congress in 1802. The
principles involved in the two cases are entire
ly dissimilar. Congress abolished inferior
courts, which had been created by act of con
gress; Ihey did not attempt tp abolish the su
preme court, which is engrafted in the consti
tution. Why did they not? Because they
knew they could notj They had the will, but
lacked the power. Was not John Marshall
then the chief justice of that court? And was
he not obnoxious to the resentments of the re
publican, and then dominant party? Were
not other judges of the supreme court equally
as obnoxious as the chief justice? Why, then,
were they not expelled, by an abolition or a
reorganization of the supreme court? Why-
did not congress pass an act, declaring that
"the supreme court is hereby abolished," or
that "all laws, in relation tothe supreme court
are hereby repealed, and the same are hereby
re-enacted?" The wise republican statesman of that day,
never had thought of your hocus pocuS mode
of Judge breaking. It was too shallow an ar
tifice, too low for grave statesmen. They
knew that it would be 'perfectly ridiculous.
Such a project was, therefore, not, even hint
ed at. It would have been .scouted as the
offspring of a deranged mind, or a wicked
heart.

Kentucky, declares, that "the judiciary pow
er shall be vested in one supreme court, and
such inferior courts," &c. It gives to congress
the power to establish inferior courts, but none
to create a supreme court; that is ordained im-
peritavely by the constitution. And any and
every court which shall be established by con
gress, or by our state legislature, must clearly
be an inferior court. If, therefore, your famous
act be valid, if it establishes your new court,
that court is an inferior court, and its^decis-
ions, like those of other inferior courts, must
be subject to the revision and correction of the
supreme court or cburt of appeals. The leg-'
islative court is "ex vi termini" inferior and
subordinate to the constitutional court.' The
power of the legislature to erect inferior courts
is unlimited, and is illimitable, except by a
sound discretion. They may, therefore, estab
lish a Desha court, a Barry court, or any other
courthowever anomalous or nondescript; and
they may christen it." the court ofappeals;" or,
"a court of appeals;" or, "the court of the star
chamber;" 'the governor's court;' "the people's
court;' or give it any other name in the re
organizing nomenclature; but it is, after all, an
INFERIOR court. There Can be but one court of
appeals, and that you cannot abolish. The
constitution only gives you power to erect
and establish inferior courts; and, therefore,
all courts erected and established by you,
must be inferior courts.
Circuit courts may be abolished, 1st. Be
cause they were created by an act of assem
bly; 2d. Because they are inferior courts,
which the legislature may "from time to time
erect and establish;" 3d. Because experience
may prove that other systems are more suita
ble. The circuit judge holding his office,
during good behavior and the continuance of
his court, must, although he behave well, go
out of office when hia court ceases to exist —
because, there being no circuit court, there can
be no circuit judge — there cannot be a judge
without a court, although there can be a court
without ajudge. To exemplify this, suppose
a former judge of a distiict court should now
claim to 'be district judge, every man would at
once say that he cannot be judge, because
there is no district court. But there are cir
cuit courts; and suppose that Judge Shannon,
one of the circuit judges, should resign his of
fice, is there not still a circuit court in his cir
cuit? The court exists, whether there is a
judge or not.
But none of these considerations apply to
the court of appeals. It can never be abol
ished by the legislature; nor can any other
be substituted in its stead. And therefore a
judge of this court can only forfeit his office by
misbehavior — pass what law you will, there is
still a court of appeals— its identity is never
lost— its existence can never, for one moment,
be suspended. And consequently he who was
once ajudge of the court of appeals, and who
has not resigned or been removed by impeach
ment or address, continues to be a judge of
;he court of appeals; because the court is still

The constitution of the union, like that ofithecourtof appeals, and because he is entitled

136

TO THE GOVERNOR ELBCT OP KENTUCKY.

to his office while the court of appeals shaP
continue to exist,
He who cannot perceive this plain difference
between the supreme and inferior courts, must
be incapable of discrimination or analysis.
Nothing, to my mind, could be more palpable,
than this radical distinction in the origin and
duration of the two courte, and the tenure of
their offices. In every essential attribute of
existence, the courts differ "-toto celo" — as far as
the heavens from the earth.
But none are so blind as those who will not
see. You are resolved to shut your eyes, that
you may not have even a twilight view of the
subject. And employing as you do all your
resources to find apologies for confounding the
two courts, it is not wonderful that some of
your party have convinced themselves that the
court of appeals is as destructible as the inferi
or courts. For we are informed by Terence,
that" Verum putes haud acgore, quod valde expectas.''
"You believe that eagerly which you hope
for earnestly."
But many of you have had too much light
to plead this apology. You do see. You know
that you are resisting the effulgence of solar
light; but ypur pride and ambition will uot
suffer you to acknowledge your errors. You
have gone so far as to consider retreat perilous
and ignominious. In this, however, you de
ceive yourselves, and if you persist, time will
open your eyes when it will be too late to re
trieve what you will have lost, and forever.
Then Mr. Willis Alston's puff will afford
you no consolation. Sir, it is more magnani
mous to acknowledge, than to persist in an er
ror. It is better to forsake "your way" than
to pursue it to desta"uction. It will be much
more glorious, and eventually more advan
tageous to you, even now to repent, than to die
in your sins. To such as have committed the
"unpardonable sin," there is no hope. These
are few, and "have sinned against light and
knowledge." They have fanned the flame of
discord and prevented its extinction. Wheth
er you are one of these, your own conscience
may decide. Whether you are or not, I am
bound to say to you, as well as to them —
"You have not, as good patriots should do,
studied
The public good, but your particular ends;
Factious among yourselves; preferring such
To offices and honors, as ne'er read
The elements of saving policy;
But deeply skilled in all the principles
That usherto destruction."
To , exalt yourselves, you have endeavored
to bear down every barrier which checks your
ambition, and opposes your absolute. dominion.
You tremble in the presence of a pure and in
dependent court. You want a subservient
court. One, the judges of which will be de
pendent for office and for bread on your boun
ty. And if you could succeed in subjecting
the supreme court to your will, you might cerr
tainly attain your objects. You might thei

have Beotian judges whom Hesiod calls "de-^
vourers of presents," You might then have
the ancient English courts, in which suiters
paid fines tothe king for his favor or fobear-
ance. Such courts as those of Edward III,
where his mistress (Alice Pierse) exerted so
much influence, that it became .necessary to
forbid her interference under pain of banish
ment; such courts as those of Charles II, in <
which a Kentucky Charley may employ hia
purchased influence for the party whose purse
is longest; such courts as those once so much
prostituted by Bishop Laud, as to kindle a
flame which could only be extinguished by
blood; such courts as those of revolutionaiy
France, by whose sentence all were decapi
tated who would not bow to the ruling faction.
Does your ambition require such engines as
these? Such you might have, if you can con
vert the court of appeals from a constitutional
into a legislative court. It would then not be
the court of the pecqile, but the servile instru
ment of faction.
But thanks to ths tutelar genius of our coun
try, we have a constitution, which, while it
lives, can secure us from such anarchy. That
constitution is confided to us, the people, and
we will, I trust, do whatever is proper for vin
dicating its integrity and sustaining its su
premacy. We have the power, and it is our
duty to doit effectually and promptiy.
"In the situatiori in which we stand, I see
no other way for the preservation of a decent
attention to the public interest, iu the repre
sentatives, but the interposition of the body of
the people, whenever it shall appear by some
flagrant and notorious act, by some capital in
novation that the representatives are going to
overleap the fences of the law, and to intro
duce an arbitrary power." Bubke.
"Whenever the legislatvre shall, either by
ambition, fear, folly, or corniption, endeavor
to grasp themselves, or put into the hands of
another an absolute power over the lives, lib
erties, and estates of thepeople; by this breach
of trust, they forfeit the power the people put
into their hands for quite contrary ends.
What I have said here concerning the legisla
tive in general, holds true also concerning tire
supreme executor, WHO ACTS CONTRARY
TO HIS TRUST, WHEN HE EITHER EM
PLOYS THE FORCE, TREASURE OR OF
FICES OP THE SOCIETY TO CORRUPT
THE REPRESENTATIVES, AISTD GAIN
THEM TO HIS PURPOSES." Locke.^
The foregoing sentiments are re-echoed in
our ears by Mr. Madison, in his preamble to
the celebrated Virginia resolutions of '98.
And in that memorable document, he more
over tells us, that WHENEVER THERE IS
A CONTEST BETWEEN THE DEPART
MENTS OF GOVERNMENT.THE PEOPLE
ALONE CAN SETTLE IT, AND THAT
THEIR DECISION, WHATEVER IT BE,
OB HOWEVER GIVEN, MUST BE PINAL
AND IMPERATIVE.
You are mistaken, sir, if you suppose that
you wUl promote your own 'interest or happi-

TO THE GOVERNOR ELECT OP KENTUCKY. 137
uess, by your crusade against justice, order, I Here is a faithful picture of an arrogant,
and the constitution. Look ai-ound you, and self-sufficient, ignorant ruler. Does your
behold your situation. Listen to Fenelon and conscience tell you, that in you may be seen
learn wisdom; this is his language: "Of all its original? If it does, you may yet profit by
men, that king is the most unhappy who be- ' its exhibition. If you will still continue
lieves he shall become happy by rendering , blind to your coudition, and cling to your
others miserable. His wretchedness is idols, I trust that the people next August, in
doubled by his ignorance — he is indeed afraid their majesty, will proclaim to you and them,
to know whence it proceeds, and he sufl'ers a in the language of Cicero:
crowd of sycophants to surround him that I ..^j .^^^ ^^ „^^^ ntentum,
keep truth at a distance. He is a slave to his , . -mnfri m ¦
passions, and an utter stranger to his duty. ¦" > P
He has never tasted the pleasure of doing I "Perish that power which has been ob-
good, nor been warmed to sensibility by the tained by evil means, retained by similar
charms of virtue. He is wretched, but the practises, and which is administerea as badly
wretchedness that he suffers he deserves, and as it was acquired." This shall at least be the
his misery, however great, is perpetually in- ' prayer of A PLEBIAN.
creasing." !
18

PRELECTION,

The friends of "the American System" in the United States having re
solved to hold a National Convention at the Capital of Pennsylvania, in
the year 1827, for consulting as to the most prudent platform of protec
tion by a tariff, a local Convention in Kentucky, in July of the same year,
appointed John Harvey, Thomas C. Howard, James Cowan, Richaed H.
Chinn, and George Robertson, as delegates to represent Kentucky in the
Harrisburgh Convention. All of them, except Mr. Howard, attended that
Convention, and, after its adjournment, made the following report to the
people of Kentucky. The principles therein illustrated — had they not
been superseded by the Compromise of 1852-3 — would, as many states
men believe, have established, before this time, a degree of national
prosperity and independence wliich would have commended, to general
approval, the proper policy of protection prudently applied to Young
America. The report presents an outhne of the principles and policy
of Mr. Robertson, who — though he always advocated the power and ex
pediency of protection, properly discriminating as to subjects, and time,
and degree — never voted for any tariff bill while he was in Congress, on
ly because all of them were, in his judgment, so framed as to operate
unjustly and rather destructively to the proper ends — that is, national
wealth, economy and equality.
Reviewing the past and contemplating the present, many wise men
believe that the compromise with nullification was barren and unfortu
nate to conservatism, and still more think that had any Campromiie been
proper, a paralysis of American protection was too high a price.

TO THE PEOPLE OF KENTUCKY-

Fellow Citizens: —
In undertaking to fulfil the expectations of
those by whom we were appointed to represent
Kentucky in the convention lately held at
Harrisburgh, we were certainly influenced by
no other consideration, than a sincere desire
to contribute, as far as we were able, to the ad
vancement of a cause, which is essentially
identified with the future welfare of our coun
try. To ameliorate the condition of the far
mer and excite domestic industry [generally,
were the only objects of the convention. It
was an able and venerable body of 100 men,
from 13. states of the Union, who had assem
bled on the 30th of July, and adjourned on the
5th of August. One of our colleagues, (Mr.
Howard) did not attend.

We were not insensible of the honor confer
red on us, nor unmindful of the responsi
bility incurred by its acceptance. If longer
time could have been allowed for a more gen
eral expression of your approbation of the ob
jects of the convention, and the choice of your
delegates, we would have been gratified. But'
feeling the necessity of a representation from
our state, and believing that you could not be
otherwise than favorable to the invitation of
Pennsylvania, we did not hesitate, at the haz
ard of personal inconvenience and pecuniary
loss, to repair, without delay, to the scene of
deliberation, and co-operate with distinguish
ed fellow-citizens from other states, in devising
and recommending such measures, as should
be deemed most suitable for the relief of ouj.

TO THE PEOPLE OP KENTUCKY.

139

suffering industiy, and the useful application
of our vast and dormant resources.
The power to protect agriculture, commerce
and manufactures, the three great elements of
national prosperity, has beeu exercised by con
gress and acquiesced in by the people, ever
since the first session of the national legisla
ture in 1789. And the policy of its applica
tion to many of the branches of those three in
terests, had not been questioned. Gen. Wash
ington, Mr. Adams, Mr. Jefferson, Mr. Madi-
ison, Mr. Monroe, Gen, Hamilton, and most of
our distinguished statesmen, have urged the
exercise of this protective power, and the ben
eficial results of its judicious application, are
practically exemplified. To the provident ex
ertion of this benificeut power of protection
by a tariff, the United States are indebted for
the prosperity of many branches of American
entCTprise — naval, agricultural and manufac
turing. Our tonnage has been protected by a dis
criminating duty of 700 per cent. The growth
of cotton and tobacco, and the manufacture of
sugar, have been encouraged by high and (to
the consumer of the latter particularly) sin
gularly heavy duties, with the avowed object
of protecting the domestic article. The man
ufacture of glass and salt has been encour
aged by duties unusually high; aud to the
wholesome protection of a tariff our success, in
many manufactures in which we are now un
rivalled, is justiy ascribable.
Ourcottonmanufactories have attained their
present maturity and surprising success, in a
few years, under the cover of "a judicious tar
iff;" and now supply not only our own con
sumption .with better and cheaper fabrics, by
at least 50 per cent., than we ever bought from
abroad, but export to foreign countries to the
amount of $4,000,000; thereby, to that extent,
enriching our own people, and advancing our
own commerce.
Deplorable indeed would be the condition
of the Union, if after the people of the states
have forbidden their local legislatures to im
pose duties on imports, or to regulate com
merce, either foreign or among the states, and
have delegated those powers to congress, there
should be no lodgment of power anywhere, to
protect their agricultural and manufacturing
ludusliry and capital, by laws regulating the
importation of foreign products, and counter
acting foreign legislation.
The states have only surrendered, they have
not annihilatedthis power. It is inherent in
every government, and has been translated by
the people, in the federal constitution, to con
gress, a safer depository of such power than
the state legislatures, because its legislation
will be more uniform, comprehensive and ef
fective. Congress is expressly vested with the
power to regulate commerce, and to lay and
collect taxes, and to impose duties. "Regu
late commerce" for what purpose? No other
or more circumscribed than the general wel
fare, subject only to the quaUficatiou of uni
formity among the ports of the respective

states. Has not congress all the power on that
subject which each and all of the states
possessed before the adoption of the federal
constitutiou? And did not each of them ever
have the plenary power to regulate commerce,
by duties, in such a mode as to protect their
own industry and capital against foreign mo
nopoly or even competition? The general gov
ernment is now the trustee of all that state
power. And the people have a right to expect
and require that the great trust will be faith
fully fulfilled to the full extent of thair inter
est and proper independence.
The legislature of our parent state (Virginia)
however, at its last session, influenced by sen
timents inexplicable by us, but animated, as
we believe, by a misguided patriotism, denied
to congress this necessary and familiar power,
and denounced its exercise for the last 37 years,
by every congress and under every adminis
tration, as usurpation and tyranny. The cham
ber of commerce of Charleston, as if by con
cert, cotemporaneously, or nearly so, announ
ced similar sentiments in a manner intended
to rouse the opposition of the south to theprin-
ciple of a domestic tariff. And about the same
time a distinguished senator of the south, and
others of hisparty, spoke of the probable suc
cess of the Woollen's bill, as "a calamity more
afflictive than war;" and to defeat the passage
of the bill, or if overpassed, "to RESIST" its
enforoement, they recommended conventions
in the south, to defend what they seemed er
roneously and unfortunately to regard as
"southern interests."
The friends of the woollens and other do
mestic interests in Pennsylvania, (than which
no state is more peaceful or patriotic,)surpris-
edand somewhat alarmed at all this unexpect
ed procedure, considered it proper to endeav
or to adopt some pacific and rational measures
for counteraction and self defence. And for
this purpose, and this only, thepeople of Penn
sylvania recommended and solicited a conven
tion, at their capital, of delegates from such of
the states as were favorable to ¦what, by a new
and appropriate nomenclature, is styled "the
American system." Such portions of Ken
tucky as had time to deli)3erate on this invi
tation, determined to accept it, and chose us
to represent your interests.
We neither solicited nor desired this employ
ment. The only compensation which we nave
received for six week's service, has been the
individual pleasure and improvement which
we derived from the interesting incidents with
which our travel was replete, and the advan
tage of a cordial intercourse with men distin
guished for their intelligence and love of coun
try, from twelve of our sister states. And all
the reward we expect or would receive, is your
approbation, and our own consciousness of
having faithfully endeavored, at the expense
of some toil and money, and much domestic
comfort, to promote your best interests. We
have no fear that we have been guilty of any
iucivism. The objects of the convention were
those only which have been avowed by its

140

TO THE PEOPLE OP KENTUCKY.

friends. And those objects have been fully
accomplished — as far as the moral infltieuce of
the unanimous opinion of such a body of men,
can be expected or should be allowed to op
erate on public- sentiment or national legis
lation. Our time, while in session, was
sedulously and excMsively devoted to the
consideration of the best means of relieving
national distress, and advancing national
industry. Our deliberations were charac
terised oy moderation, liberality and harmo
ny ; and marked, as the result will shew, by
no local interest or predilection. They were
— as they should have been — ^in their manner
temperate and decorous, and in their aims, im
partial and national. Whatever was done, was
done openly; and the best vindication of the
convention would be a publication of all that
was said and done, and attempted to be done,
by the body collectively or its members indi
vidually. We will not commit our own dignity, nor in
sult yours, by noticing (for the purpose of
gravely defending ourselves from their appli
cation) the opprobious epithets which have
been uttered and published in reference to the
convention, by some individuals of morbid
sensibility and of more morbid taste. Nor will
we notice, for any other purpose than to shew,
that they have not escaped our obser'vation, the
reckless prophecies of dire calamity, with
which others, not more enviable for their tem
per or sagacity, have essayed to alarm your
fears and awaken your prejudices. If such
names as Jeremiah Morrow, Hezekiah Niles,
Mathew Carey, Joseph Ritner, the venerable
Judge Huston, the patriarchal Tibbets and
Payne, and others which might be mentioned,
cannot rescue the convention of which they
were members, from unjust reproach, we could
offer nothing to still the tongue of slander.
We shall only add, on this subject, that we
have done nothing but what every citizen of
the United States has the constitutional right
to do, peaceably and without annoyance or re
buke; and we have done what we were called
to do, in a manner becoming the dignity of the
American people, audfree from justexception.
It is not treasonable cr even presumptuous,
to petition congress for a redress of grievances.
And we shall only ask those who have ventur
ed to question our candor or purity of motive,
to be careful lest, by the temper and object of
their <ienunciations, they subject themselves to
a more just and disastrous recrimination.
The convention, as many of you will have
heard, concurred unanimously in a memorial
to congress, soliciting additional protection to
the growth of hemp and flax, and to tiie man
ufactures thereof — ^the manufacture of iron,
and fine cottons, and tha gi'owth and manufac
ture of wool.
The capacity of our country to produce hemp
and flax, is almost infinite: and no statesman
who will carefully examine the statistics bear
ing on this subject, can doubt that, with a very
little additional protection, a domestic market
will be secured, which will enable us to in

crease the growth and manufacture of hemp
knd flax to an extent which will be singular
ly advantageous to the soil and agi'iculture of
pur country, and, as in the case of cottons, far
beyond our own domestic and naval uses.
" During the fiscal year 1826, the following
amounts of hempen and flaxen fabric, were
imported into the United States, viz:.
Articles not subject to the duty
of 25 per cent., - - $2,757,080
Those subject to the duty of 25
' percent., - . - - 929,946
Other hempen articles, excepting
cordage, . - - - 48,900
Total, - - - $3,764,781
Cotton bagging, 3,436,460 sqyds,
valued at - - - _ 1,781,188
Twine, pack-thread, and seine
twine, 326,640 lbs, - 60,827
Cordage, 1,613,604 lbs - - 06,599
Total, - - $1,928,614
In the same year, raw hemp and flax were
imported as follows:
Hemp 9,869,000 lbs, $551,757
Flax, about 600,000 lbs, - 72,O0Q

Total,

$623,757

For the manufacture of hempen and flaxen
articles imported, 21,880,615 lbs. of hemp
and flax would be necessary — ^which would be
worth $1,500,000 — ^requiring for their growth
about 51,500 acres of land, and gi^ving employ
ment, in manufacturing them alone, to at least
¦^00 persons, and indirectly to a great many
more. Within the last six years manufactories haye
been established in the United States, which
already supply one half of our sail cloth; but
it is believed that they cannot be sustained
much longer, against foreign capital and com
petition and legislation. Without some further
support from government. The duty now im
posed on the raw material is 15 per cent, ad
valorem, and is no higher on the manufactur
ed article. Add to this the fact, that England
grants a bounty of 25 per cent, on the expor
tation of linen.
How easy, from these facts, would it be for
us to supply ourselves with the hempen and
flaxen fabrics from our own factories? A small
additional duty on the raw material and on
cordage, canvas and cotton bagging, would se
cure to us our own market; the necessary effect
of which would be, a. greater diversity and
productiveness of labor, some relief to our de
pressed agriculture — and more security, and
independence to our citizens in seasons of
scarcity and of war.
The house of representatives of the United
States in 1824, passed a bill to allow a duty of
4^ cents on cotton bagging, but by the un
lucky secession of a western senator, of high
name and pretensions, it was unfortunately'
reduced to 3^. It is believed that the imme
diate representatives of the people spoks their

TO THE PEOPLE OF KENTUCKY.

141

¦will in passing this bUl, and that it will not
be long, under favorable auspices, before it is
reiterated with more success, and shall become,
as it should have done in 1824, the law of the
land. The prosperity of the grain growing states,
hasbeen declining ever since the peace of 1815.
We are deprived of our accustomed foreign
markets, and have mot substituted others at
home. The consequences, as might have
been foreseen, are languor £(nd distiess in the
fairest aud most prolifac regions of theiniddle
aud western states. The remedy is obvious
and natural. It is two fold . — 1st. Increase the
ratio of the home demand to the supply, by
encouraging home manufactures, which ¦svill
certainly multiply the number of non-prodii-
cing consumers — augment the demand for
breadstuffs at home, the only sure and steady
market — and, in a coiTesponding degree, re
duce the relative number of grain-growers, now
oppressively redundant, and enhance the
value of their productions. 2d. Increase the
duty on imported spirits, so as to make it the
interest of our people, as it should be their in
clination aud pride, to consume less of foreign,
and consequently more of our domestic liquors
distilled from grain.
The foreign demand for our breadstuffs has,
since 1818, not only been very limited, but in
juriously precarious and fluctuating. The en
forcement of "the corn laws," virtually inter
dicts the sale of our corn and flour in England;
and by her recent policy England menaces the
occlusion of her colonial ports against the ad
mission of our vegetable products. Before the
colonial interdict (viz:) iu 1825, the exports of
flour from the United States to all the British
colonies did not exceed 223,000 barrels, —
none could be sold in England! During the
same year, our grain growing population
bought of England manufactured articles to
the amount of $7,500,000! And it should not
be forgotten, that in the same year, the New
England manufacturers bought and consumed
625,000 barrels of American flour, and large
quantities of our corn. Here is a domestic
market already opened to us, 100 per cent, bet
ter than that of England, before her new «o-
lonial system was announced, and this market
is created by the growth of American manu
factories under the genial and vivifying influ
ence of "a judicious tariff." This is an impor
tant fact, when it is recollected that the'graaing
and grain growing states contain about three-
fourtha of the population of the United States.
In 1793 our entire population was about 4,-
500,000; in 1824 it was 12,000,000. Yet in the
former year the value of our animal and veg
etable exports exceeded that of the' latter year
—thus: 1793, 1,074,639 barrels of flour; 1S24,
996,7U2 barrelf of flour, 75,106 barrels of beef,
and 38,563 barrels of pork. In 1824, 66,074
barrels bf beef and 6 7,229 pork. In 1791-2-3,
we exported 373,352 tierces of rice, and in
1832-3-4, only 301,683 tierces. The money
value of the foregoing exports in 1793 exceed
ed that of 1824 as IOU to 50, The value of ex

ports was not given at the treasury before
1803, since which, we aro enabled by the
treasury reports, to exhibit the following tabu
lar contrast: 1803, flour exported $9,3O0,00U;
1824, flour exported $5,759,000; 1803, beef and
pork, $4,125,000; 1824, beef and pork $2,628,-
000. The intermediate years exhibit a ratio
of progressive deterioration in the value of our
exports, while our population has in the mean
time increased 100 per cent.
The foregoing facts are sufficient to show
the consequences of depending on a foreign
market, which we neither control nor regulate;
and they indicate the necessity of a home mar
ket, stable and sure. We should not depend,
as much as we have done, on foreign caprice
and British legislation. We should buy more
from our own citizens, and that will enable
them to buy more of us iu return. This kind
of interchange will be mutually advantage
ous. It will make us feel (what we really are,
or should be,) as onepeople; and will promote
our prosperity and real independence.
The capacity of the United States to supply
theirown market with iron, is indisputable.
Iron ore is abundant in the east, west, north
and south, and immense quantities of it are
useless, for want of ' a demand, ¦svhilst we im
port ' largely from abroad. 'The convention,
therefore, — influenced by the same doctiine
which governed all its determinations, (viz)
that when we can supply the raw material our
selves, we should also supply the manufac
tured the article, in all grades, even to its
highest elaboration, — recommended a slight
additional duty on foreign iron and steel. If
this duty should be imposed, and have its con
templated effect, it will augment our inti'insic
resources in peace and in war, and in a short
time diminish to the consumer the price of ar
ticles which to all classes of society are indis
pensable. ,
The complete and signal success of our
manufactories of coai"se cottons, and the con
viction resulting froin satisfactory information,
that ^he like protection by the government,
will produce the like success to the efforts now
making to manufacture the flner cottons, in
fluenced the convention to ask the attention of,
congress to this branch of domestic enterprise.
We can now buy at a New England or renn-
sylvania factory, cotton cloth for ten cents a
yard,. of finer texture and more durable than
the imported cotton, which, before our facto
ries existed, cost us at least thirty cents. And
we can now buy a very useful article of Amer
ican manufacture, to-wit, good casinetts, for
fifty cents, better and nicer than any coarse
British cloth at $2. Yet we know that, when
the last duty was imposed on the importation
of coarse cottons, many plausible objections
were vehemently and honestly urged against
it, by speculative cosmo-politico-economiats;
such as the following: "Let trade regulate it-
gelf_-w-e are taxing the many for the benefit Of
a favored few— you will enhance the price of
the manufactured article — dijainish the reve
nue—encourage monopoly." But the ezperi-

143

TO THE PEOPLE OF KENTUCKY.

ment refutes all such abstract doctrines.
"The many" have been benefitted as well as
"the few" — the price to the consumer has been
wonderfully diminished — there has been no
smuggling — and the revenue has been augment
ed. These objections were then more impos
ing than now. They were sustained by mu
tilated scraps of authority from Adam Smith,
Say, and Ricardo, who wrote for Europe, and
were unfortunately misapplied, by our theo
retic politicians, to America. But if there
were no other facts to shew the fallacy of these
old-fashioned abstractions of closet econo
mists, (and there are many more) the cotton
experiment is most triumphant. In the suc
cess of that, we find theory overturned by
practice — and speculative opinions refuted by
an an'ay of simple facts which are irresisti
ble in the confirmation of the maxim of our
Washingtons, Hamiltons and Jeffersons, ex
pressed in the following oracular language: —
"When a domestic manufacture has attained
to perfection, and has engaged in the prosecu
tion of it, a competent number of persons, IT
INVARIABLY BECOMES CHEAPER. The
internal competition which takes place, soon
does away everything like monopoly; and by
degrees reduces the price o( the article to the
minimum of a reasonable profit on the capir
tal employed. This accords with the red,son
of the thing and with experience."
The chief object of the convention, andthat
which was, more than any other, the occasion
of its meeting, was ¦ to encourage and protect
the growth and manufacture of wool. And
the result was an unanimous recommendation
to congress of the following rate of duties,
viz: on all foreign wool over the value in a for
eign port of 8 cents per pound, a, duty of 20
cents per pound, with the addition annually of,
2J^ cents, until it shall leach fifty cents.
On the woollA goods (with the exception of
worsteds and bombazetts, flannels and blan
kets,) 40 per cent.,with the addition of 5 per
cent, annually, until it shall reach 50 per cent.
— with this additional qualification, to-wit:
that in estimating the ad valorem, all woollens
(subjected to the above duty) of less value
than 50 cents the square yard, are to be valued
at 50 cents; those between 50 cents and $2 50
at $2 50; those between $2 50 and $4 at $4;
and those betweeii $4 and $5 at $6.
There is no essential difference between the
rate of duties here recommended, and those
proposed in the Woollen's bill of last session
of congress, except in the article of wool. We
inclined to the opinion that it would be better
to invite the attention of congress generally to
thc subject, without any specific recommenda
tions. But a large majority of the convention
being of a different opinion, and insisting that
it would be proper to suggest, respectfully , the
rates which the convention deemed most suit
able, leaving congress, when possessed of the
advantage of such suggestion, to adopt such a
system of protection as its superior wisdom,
on a more extensive survey of facts, might as
certain to bs most fitting, we concurred cheer

fully in uniting in the entire memorial as it
was presented. To such as may say— ''the
rates are too high"— we reply, congress can
make them lower; and' to such as may insist
that the subject should not be touched, we an
swer: we shall acquiesce, very cheerfully, (as
we hope all others will do,) in whatever course
the wisdom andpatriotism of congress shall
finally adopt. We did not expect nor desire
that our opinions should have more than their
just share of influence.
In regard to the propriety of increasmg-the
duties on wool and woollens, however, there
were some prominent considerations influen
cing the convention, which should not, even in
this imperfect outline, be entirely pretermit
ted. , , .
Bythe tariff of 1824, the duty oU foreign
woollens was raised from 25 to 331^ per cent.
This was found necessary to sustain the labor
and capital employed iu the wooUen manufac
ture, and was deemed sufficient. In faith of
the law of 1824, investments were made by
some of our fellow-citizens in other states, in
buildings, machinery and materials for wool
en manufacture to the amount of at least $20,-
000,000. These investments promised to be produc
tive for some time, and no doubt would have
been, if they could have been protected from
the disatsrous effects of two unforseen causes:
1st. 'The distress of the manufactures in Eng
land in 1826, induced them to export large
quautities of their wooUens to the United
States, and sell them at reduced prices, to avert
the ruin which hung over their own heads, and
to crush our rival establishments, so as to keep
open the usual demand in this country for
their fabrics. 2d. To aid in relieving their
own manufacturers, and in prostiating ours.
England reduced the duty on wool to be im
ported for their manufactories, from 6 pence
sterling per pound, to one penny, and on the
coarser wool of less value than one shilling
per pound, to a half penny per pound! and on
other articles to be imported for the manufac
ture of cloths, there were corresponding reduc-
tien; for instance, that ou olive oil was redu
ced from £15 13s the ton (252 gallons) to£T;
on rape seed from £10 to lOs- on logwood from
9s 4d sterling, to Is 6d; and on indigo there
was a reduction of 20 per cent. All which
wei'e estimated to reduce the cost of manufac
turing 16% per cent., (viz:) the reduction on
wool 14-^ — and that on the other articles 2
per cent. The avowed object of these reduc
tions, was to enable the British manufacturer
to undersell the American, iu our own market,
and thereby, in the parliamentary declaration
in favor of the reductions, open to England in
North and South America, "an immense mar
ket for our (English) low priced cloths!" And
shall this announcement be prophetic? It
must be so without some countervailing regu
lations by our own government. Thc British
Parliament has virtually reduced our duty of
33J^ per cent, to 16% — more than one-half less
than it was before the tariff of 16241 Theie

TO THE PEOPLE OP KENTUCKY.

143

facts ipeak plainly. There is nothing specu
lative m them. They are, and have been to
us, most actively practical. Our manufac
tures have been severely stunned by their op
eration, and must sink under the blow, un
less our government interpose, and resist the
assaults of the British Parliament, by secur
ing aU the protection promised by the law of
1824, which Parliament has reduced, and in
effect more than repealed. Shall we submit
to England, as her colonies, or shall we en
force our o'wn legislation, aud protect from for
eign aggression our own capital and our own
industry; and from ruin, our own citizens?
Shall we adhere to the law of 1824 — or shall
we suffer it to be mocked and trifled with by
England? There can be no doubt that we can supply
the wool for all the cloth necessary for our
own use — nor can it be seriously questioned
that we can, with the advantage of security
from government, in a short time, make as
good cloths as any ever imported — and afford
to sell them at home, much cheaper than we
can buy those of foreign countries. The cot
tons wUl prove this, without the trouble of an
analysis of the facts which, to the merely spec
ulative mind, would make so obvious a result
manifest. The parallelism of the wollens and
cottons is obvious, and may be made com
plete. The consumer cannot buy in Kentucky a
yard of London cloth, which cost $6 at the
manufactory, for less than $12. This dupli
cation of price is produced by the profits of in
termediate venders; by insurance, tiansporta-
tion, impost, <feo. And thus a Kentuckian
must pay $12 per yard for the honor of wear- •
ing a British coat; for it is confidently be
lieved that, with adequate protection, Ameri
can manufacturers could be able in a very
short time, to sell cloth of the same quality as
cheap at their own doors, as those of England
can in the mart of London or York. And if,
instead of buying at half price, we should
give even more for an American than an Eng
lish coat, would it not in the end be a saving,
not only to the purchaser, but to our country?
Would it not be better to buy from our own
neighbors, who will buy from us, than of Eng
land who will not purchase our hemp', or whis
ky, or flour, or corn? Would it not be wiser,
to provide a market for those articles at home,
than to have none at all? And would it not
be more profitable and patriotic to keep our
money at home, than to send it abroad to "that
bourne, whence noti'aveler returns?"
The number of sheep in the U. States are
estimated at 18,000,000, of the value, at $2
each, of $36,000,000; and of which the fleeces
estimated at 2)^ lbs each, and at the price of
40 cents per pound, would be worth annually
$18,000,000. It i« supposed that it would re
quire 40,000,0(10 of sheep, to supply wool
to manufacture the wollens necessary for the
consumption of the existing population of the
United Stares, if no foreign woollens were in
troduced among us.
The United States, in climate, soil, and to

pography, are generally well adapted to the
growing of wool— and it is believed that no
portion, of them is more eligible for this pur
pose than parts of Kentucky; portions of which
might, by raising sheep, be made productive,
which ai-e now in wilderness and waste. If
we could get only 40 cents a pound for wool,
our agricultural capital would be rendered
more productive than it otherwise can be, by
a transfer of a portion of it to the raising of
sheep. Wool, which readily brought $2 75
during and shortly after the war, will not now
command more than 50 cents. Such as sold
for 95 cents and 18 cents in 1826, before the im
pulse given by the Tariff of 1824. was checked
by the selfish policy of England', is now dull
at 50 cents and 123^ cents. And for want of
demand, the business of raising sheep is,rap-
idly declining. Without some stimulus to the
domestic manufacture of woUens, there will
not be a demand sufficient for the wool now
grown in the United States — so that even a
prohibitory duty on foreign wool would not
benefit the owners of sheep in our country,
without the creation of a more extensive home
market. The rejection of the Woolen's bill last
winter sunk wool more than 25 per cent. This
fact is well authenticated.
Dujting the last year, there were about 60,-
000 persons, large and small, employed in
woollen manufactories in the United States.
The provisions (to be bought from the agricul
turalists) necessary to subsist these laborers,
would cost at least $2,600,000 — which is about
40 percent, of the total value of the agricul
tural productions exported from the United
States; and if stimulated by a domestic mar
ket for their fabrics, so as to have full employ
ment, they would purchase (also from the ag
riculturalists) wool of the valu'e-of about
$1,000,000 — 83 percent, of our population are
agriculturalists, and the market even now fur
nished to them by our own manufacturers for
provisions and raw materials, is ten times as
great as that of the world besides.
The woollens imported from England annu
ally, may be estimated at $10,000,000; and
from the grain growing and grazing popula
tion of the United States, England will not
buy of their horses, cattle and breadstuffs, to
the value of one cent! The balance of trade
with England is against the U. States at least
$10,000,000, the whole value of the woollen im
portations. Whilst the United States enjoyed
the carrying trade, their commerce flouri,shed.
That great source of prosperity is now closed
against us. During the continental wars, the
population of Europe, absorbed in the con
cerns of armies and batties, necessarily neg
lected, in a considerable degree, the employ-
mente of peaceful life and productive labor —
hence their agriculture declined, and they
looked to us for a suificient supply of such
vegetable articles of consumption as they had
not the leisure or the means to produce. Our
agriculture then flourished, and our farmers
were buoyant with hope, and prospered.
Since the pacification of Europe, its people
have resumed thepuruits of agriculture, with

144

TO THE PEOPLE OP KENTUCKY.

renovated vigor and- alacrity; the consequence
of which is, that they supply their wants by
the cultivation of their own soil, and will not
Eurchase from us. And hence our agriculture
as been gradually declining, and our farm
ers are becoming despondent. In 1818 Eng
land interdicted the importation of our bread-
stuffs — and she determined, at any hazard, to
enforce her corn laws. She begins to talk
about growing tobacco. She invites to her
ports the cotton of Hayti, free of duty, whilst
she enforces a heavy impost burthen on that of
the U. States! Indeed, she will not buy cot
ton from us whenever she can be conveniently
supplied elsewhere.
In the south of Europe — in Germany — in
Poland and in Sweden, tobacco is now grown,
and may be produced to still greater extent.
By these causes and others, which it is un
necessary to enumerate, our vegetable exports
have decreased iu quantity and value, and
our producers and exporters have suffered se
verely, and many even to hopeless bankrupt-
cv; although we are favored with a better soil
and form of government, and with more phys
ical resources than any other nation on the
flobe We want a home market — and a greater
iversification and distribution of labor.
This is the natural, the obvious, and as the
experience of the worl^ undeniably proves, the
only sure remedy within our control. We
must learn to depend on ourselves, and shake
off our colonial habits. We must do as Eng
land, as Russia, as Gfermany, have been forced
by necessity to do; and as France is learning
to do— protect our own industry, and secure
for its products a certain and steady market.
If we cannot, or will not do this, we may, with
out prophecy, read our destiny in the history
of Spain, Portugal and Ireland, who have fol
lowed the popular docti'ine of anti-tariff pol
iticians, blindly and perseveringly.
No nation has ever been long prosperous,
without manufacturing for itself, articles of ne
cessity in peace, and of valuable uses ih time
of war — and all other fabrics of which it might,
by its own labor, supply the chief materials.
All history proves this, and it also shows us
the important fact, that manufactures never
flourish and maintain their ground, without
the aid and protection of government. Infant
manufactories pass through a probationary or
deal, which many cannot survive, without be
ing propped and nourished by the fostering
care of a paternal government. They seldom
attain vigor and maturity, without assurance
of safety from the fluctuations of foreign poli
cy, and the overwhelming attacks of foreign
power and capital. And when they survive
the dangers incident to their infancy — their
improvements iu skill and in machinery, their
augmentation of capital and their rivalry
among themselves, have never failed, and
never will fail, not only to enable them to
maintain themselves, but to reduce their fab-
¦^cs to tho minimum value, which is always
less than the same kind of fabrics, when im
ported, can be sold for. These are not specu
lations. They are the practical lessons of all

times and countries; and the^ accord with the
opinions of ourtuost illustrious statesmen, liv
ing or dead.
It is not expected or desired by the rational
friends of the "American System,'" that man-,
ufactures should ever predominate over agri
culture. The latter is tbe basis of our power
and prosperity, and should ever command our
supreme regard. But, to give it full effect,
manufactures and commerce must also flour
ish. These are three sisters, whose destinies
are indissolubly intertwined. And commerce
and manufactures must be so far encouraged as
to in'vigorate and reward the hands of agricul
tural industry. That manufactures have not
been thus far promoted, it is believed confi
dently a fair induction of recent facts will de
monstrate. Prohibition is not contemplated at this time.
The work of advancing "pari passu," the
three leading interests,mu8t be progi'essi^ve, to
be tolerable or suceessful. Active, and even
tually successful competition in the fabrica
tion of some of our own most valuable raw ma
terials, into such articles as our necessities
require and our habits render comfortable, is
all that it would be prudent now to attempt.
If we should feed, why should we not endeav
or to clothe ourelves? Why should we disre
gard the invitations, and waste the rich boun
ties of Heaven? Why n.ot make a prudent use
of the means of wealth and power which are
strewed over our land? Why not develotoe,
and by the judicious employment of machine
power, and proper distribution of labor and
capital, multiply our resources and increase
their natural productiveness? England, since
the age of Edward the III, has augmented and
sustained her vast power, by manufactures.
Many raw materials, when elaborated by her
manufactories, are increased in value ten,
some an hundred fold. And by this process;
too, she gives employment to thousands of
men, women, and childre'n, who could not oth
erwise exist on her soil; and thus she makes
many good and productive subjects, ¦who
would, ¦without this great resource, be idlers
and vagabonds. Her cotton manufactories
alone, give employment to more than 500,000
families, averaging at least foilr persons each,
and constituting in the whole upwards of 2,*
000,000 of souls. Out of raw cotton, costing
her only $22,500,000— and of which article
she does not raise a pound; she produces $180,-
000,000; whilst the United States, that raise
two-thirds of what is consumed in Europe, and
export five-sixths of their crops, receive there
for only from 20 to$25,000,000. This is only
one, out of many examples.
_ The extension of our home market, by mul
tiplying our manufactories, will not onlV di
rectly promote agriculture, but indirectly it
will produce a more extensive effect on "the
general welfare." It will causfe the improve
ment of our roads and rivers — the construc
tion of canals and railways, which will facili
tate our inter-communication, strengthen our
sympathies as one people, engaged in one
common cause, and Uius tend to eem«nt the

TO ffflfc ftlOPliS or KBNTUOKT.

145

discordjuit and erratic elements of the Union,
into one indissoluble fraternity. For this ob
ject, and to this extent only, we desire to cher
ish manufactures. W» would not blindly fol
low the example of England. We are essen
tially agricultural. And it is our interest
and should ever be our pride to retain so en
viable a pre-eminence. To aid in doing thia,
was the object of the convention, and they
have ventured to suggest humbly, the meas
ures which, in their opinion, are best suited to
accomplish the desirable end. All acknowl

edge that some remedy for the agricultural dis- , «qual the value, fiscally and commercially, of
tress, which is seen, and felt, and heard in all the foreign commerce in the articles to be

every Neighborhood of the middle and west-
em states, is indispensable. The convention
have recommended that which they honestly
hope will be most efficacious and least excep
tionable. And they would venture their re
putations on its signal success, if it is permit
ted to make a fair experiment.
It is not local; all parts of the Union, if not
equally profited by its immediate effects, will
eventually derive a common benefit from
its success, and none more than the west.
And the south wUl soon feel its beneficent
operation, not only in the jeneral prosperity,
but in some peculiar benefits. They will
find a steady and profitable demand in Amer
ica, for their cotton, and rice, and indigo, or
for greater quantities of them than have yet
found so advantageous a market. They will
be able, very soon , to buy their cotton bagging
from Kentucky cheaper to them than from
Scotland, and oetter; — American casinetts and
linaeys will he cheaper, and suit their black
population better than coarse imported cloth.
And this is the opinion of many of the most
enlightened, patriotic, and liberal men of the
south. The following is the language of
one of them: "There is a perfect coincidence
of opinion between us on the subject of protect
ing home manufactures. Bad as the times
are for cotton planters, (of which I am one in
a small way) they wovild be much worse, but
for the demand of our manufactories for the
raw article. I should like to see more effectu
al protection extended to the growth and man-
ufactuie bf wool. These, and such like meas
ures will, in time, make us independent."
The lamented Lowndes entertained the same
rational and liberal sentiments.
The cotton and sugar of the south and south
west have been protected by a duty of 3 cents
per pound, now equal to about 50 per cent.
ad valorem. Thesie articles are indispensable
to the poor as well as rich, especially the ar
ticle of sugar. The poor man or sick woman
must pay three dollars on a hundred pounds
more, in consequence of the protection extend
ed to the home manufacture of sugar. And
this is indirectly a bounty of 16 dollars to eve
ry individual of the entire population of Lou
isiana. The whole quantity consumed in the
United States may be safely estimated at
120,000,000, of which about 76,000,000 are im
ported. The duty on the latter is about $2,-
300,000, which is p»id by the consumers.
Should those who monopouze the benefits of
19

such protection, of such an article, object to a
duty of 30, 40, or even 50 percent on wool and
woollens; whereby the latter article, of indis
pensable necessity, will, in time, be rendered
cheaper to them, and improve the market for
their own peculiar and much favored pro
ducts? The duties proposed by the convention
will not injure commerce, nor essentially di
minish the revenue. The coasting trade, and
th»t in the small articles necessary for our
manufactures, which we cannot produce, and
the export of our manufactures, will more than

protected, even if that protection should
amount to a prohibition. But prohibition is
not intended or expected. The manufactures
exported, in 1826, exclusive of gold and Sil
ver, amounted to 5,595,130 dollars; exceeding
the export of tobacco 1,000,000 dollars, and all
other vegetable and animal exports 800,000
dollars. Nor will the measures proposed materially
affect the foreign market for the cotton of the
south, except so for as it will be improved by
reducing our exports of that article. England
will buy our cotten when she needs it, and
cannot buy a sufficient quantity from the In-
dias, Egypt or Hayti, at the same price; for
necessity IS a law, even to her. If she can be
advantageously supplied elsewhere, she will
not buy our cotton, whether the proposed tar
iff be adopted or not. Greece and her islands
are more suitably adapted, in soil and climatS,
to the culture of cotton, than any portion of
North America. Whenever peace and securi
ty shall be established in those delightful re
gions, the Greeks will grow more, and better,
and cheaper cotton, than we can or will raise.
And there is no doubt that the Mediterranean
can supply all Europe with raw cotton. Late
signs are auspicious of the partial emancipa
tion of Greece. Whenever this shall come,
England will find the means of supplying; her
manufactories with cotton, and will not fail to
doit. Will not the south see these thiugs, and
consent to prepare for the crisis, by subrnit-
tingto the only expedient which, in our opin
ion, can alleviate the distress of the times, and
avert the impending danger! Her ancient pa
triotism, her acknowledged sagacity, her deep
interest at stake, give assurance that she will
forego party pride, and old prejudices, and
seeing her common interest in the common
cause, will acquiesce cheerfully and co-ope
rate in the common endeavor, to re-establish j
the prosperity, and consolidate the happiness
of our common country. Except in gardens,
cotton was not raised in the United States be
fore 1789; since which time the quantity pro
duced has increased to an astonishing degree.
To show the rate of progressive increase m the
production, the twolast years only will be se
lected. In 1825 the estimated qua-ntity was
550,000 bales. In 1826 it was 750,000. 85,-
000,000 pounds exported in 1819 ¦were nearly
as valuable as l^fiOO,m Po-Ji^ds in 1820
And in 1823, 173,000,000 sold for $1,500,000

us

TO THE PEOPLE OF KENTUCKY.

less than 142.000,000 pounds did in 1824.
Thfese facts shew the fluctuations and uncer
tainty of the foreign demand, and that the de
mand may be now, and often is exceeded by
the supply. What will follow when Greece
and the Archipelago engage in the produc
tion of cotton? It is believed that the Amer
ican factories will shortly consume 40,000
bales of American cotton, of which 12,000
bales will be manufactured for foreign mar
kets. Even now, large quantities of Ameri
can coarse cotton goods are exported, and sold
profitably. Stop the American cotton facto
ries, and the price of raw cotton must fall,
nearly, if not quite 20 per cent., and cotton
goods must rise in more than a correspondent
ratio— and 'thus make a double loss to the
American people, and a double gain to for
eigners." To Kentucky, exhausted by incessant
drains of her specie to the East, to buy dry
goods, and tothe West, and North, and South,
to buy land, and cut off from a profitable
foreign market, the proposed measures of re
lief cannot be otherwise than most salutary.
They will have a tendency to revive our
drooping agriculture, and give life and ani
mation to our villages. They will stimulate,
and enable us to improve our roads and our
rivers, aud draw frrom our earth its abundant
resources. On the rocks of the Schuylkill,
five years since uninhabited, manufactures
have reared a flourishing village, (Manayunk)
containing upwards of 1500 manufacturers,
moral, industrious, useful and happy people.
Similar results have been effected by similar
means, at Lowell, in Massachusetts, and at
Weare and Somersworth, and many other
places. Such improvements are always the
necessary cause or effect of canals or turnpike
roads — for cheap, sure and speedy transporta
tion and travel.
The foregoing are a few (and only a few) of
the considerations which prompted the recom
mendation of the Harrisburgh Convention.
We have neither the leisure nor the inclina
tion to enter into elaborate argument in favor
of this recommendation, nor a minute analysis
of the facts which would sustain it. By or
der of the convention, an address to the people
of the United States is in preparation, and will
shortly appear. This will be full, and, we
hope, satisfactory. We will endeavor to lay
it before you as soon as it shall be publishedf.
We had hoped that its earlier appearance
would have rendered this hasty and imperfect
address unnecessary. But as we have been
disappointed in this, we feel it out duty to
submit to ybu this immethodical statement of
some of the statistical facts, which, with oth
ers, influenced our opinions, and which, we
trust, wiU not be Without their effect on yours,
•when you examine them carefully and make
right deductions from them.
The recommendation is liberal and nation
al. We have reason to expect that the East-
em members of ConjCTess will generally favor
the whole system, and if the western and mid

dle states co-operate through their delegations,
the objects recommended will all be effected.
Some of the members from Pennsylvania, and
nodoubtsome of those from Kentucky, voted
against the Woollen's bill last winter, because
it did not embrace some of the other subjects
noticed by the convention. We ishould be
pleased to see all these interests united in one
fate, and-triumph together; but if all cannot
enlist, in their favor, the support of a majori
ty— GIVE US A PA:rt. We are deeply iu-
terested in each branch, although our iaterest
is more direct and immediate in some than in
others. And if we can only sustain one new,
that success will enable us, by its effects, the
sooner and more certainly to gain all the oth
er objects which they have solicited. But if
all fail, we have the consolation to believe that
it will not be our fault. We have endeavored
to do our duty, and in this endeavor we have
been animated by no other motive than an
honest zeal for the welfare of our state and our
nation. There are many honest men who do
not concur with us in opinion on this subject.
If our opponents are in the majority, we shall
quietly yield and patiently wait for the cur
rent of events to operate on the reason of the
people. But if, as we believe, the convention
are engaged inthe cause of the people, we only
ask, from our adversaries, the same temper of
patient resignation. Our cause is the cause of
our country, and must prevail. We only ask
for ourselves the charity which we are willing
to manifest for those who oppose us. We
know that the subject is a delicate onfe, and
well calculated to produce diversity of opin
ion among speculative men. Theory has beeu
long tried. We invite attention to the prac
tical lessons which are pressed on our atten
tion by our own history.
All except the few who deny the power to
protect manufactures by legislation, profess to
be in favor of a "judicious tariff.''^ What is
judicious at one time may be injudicious at
another. What may suit one country may not
be adapted to the circumstances of another.
But the time has, in our opinion, arrived, when
hemp and flax, and their maniifactures—
Grain— Iron, and Wool and Woollens, de
mand further protection in the United States;
ajid we have united with others in urging their
just claims to public consideratien. This is
what we call, at this time, and in this coun
try, a "judicious tariff" — and if there is an or
ganized party, which is determined to oppose
this domestic system aa thus presented, and
internal improvement, its handmaid, we trust
that this party will learn that this is thc
"American System," well approved by the
American people. Respectfully,
G. ROBERTSON,
JOHN HARVIE,
JAMES COWAN,
R. H. CHINN.

PRELECTION.

On the 18th of November, 1822, Mr. Robertson, then a member of the
Kentucky Legislature, after having resigned his seat in Congress, of
fered to the members of the Assembly, convened in the Representative
chamber, at his instance chiefly, resolutions recommending Henry Clay
for President of the United States, and urged their adoption by a speech
which has not been preserved. They were unanimously adopted, and a
committee was appointed to correspond with other states on the sub
ject. His colleagues, of the committee, having imposed on him the duty
of preparing an address tothe members of the Legislattore of Ohio, he
wrote the following letter, which they all signed, and copies of which
were sent to the leading members of that body, and were responded to
by the vote of Ohio for Mr. Clay. This wa« the first time he was sup
ported for the Presidency. He was then in the 46th year of his age;
and the day of his said nomination was the 32d anniversary of Mr. Rob
ertson's birth.
The letter to Mr. Clay, which succeeds that to the citizens of Ohio, is
now published in this volume, because it contains some evidence of per
sonal knowledge on a subject which malice had made unjustly annoying
to Mr, Clay and his friends: and the address bythe people of Garrard
follows for a like reason.
The salutatory and valedictory addresses which follow, are deemed
worthy of a place inthe same volume, as slightly illustrative of the char
acter and fame of Mr. Clay. The first was delivered on the 9th of June,
1842, on the occasion of a magnificent festive assemblage of more than
I0,000ofhis fellow-citizens, male and female, on the ground now used
as the Fair Ground, near Lexington, convened to meet Mr. Clay on his
return home, after resigning his seat in the Senate. And the last was
delivered on the Oth of July, 1852, on the arrival of his dead body in
Lexington, and the delivery of it to the committee of reception, by the
Senate's committee, who attended it from the National Capitol.
And it was thought best to disregard chronological order, and group
all these little addresses together. As connected with the last addresp,
that of the Chairman of the Senatorial Committee, with an extract from
the Observer & Reporter of the 14th of June, are also here re- published.

TO THE LEGISLATURE OF OHIO-

Peankpoet, Ky., November 20, 1822.
At a joint meeting of the members of the
two Houses of the General Assembly of Ken
tucky, informally convened at this place on
the I8th instant, Henry Clay was unanimous
ly recommended to the people of the United
States, as a proper person to succeed James
Monroe as President thereof, by a resolution,
an enclosed copy of which we take the liberty
to submit to you. A committee of correspon
dence was also at the same time appointed,
composed of the undersigned, and we beg
leave now to address you on this occasion, in
discharge of the duty tiius imposed.
It is perhaps a source of deep and general
regret, Uiat there is not any mode, perfectly
unexceptionable, of collecting and proclaim
ing public sentiment on the very important
question of Presidential succession. Congres
sional caucuses, which have been generally
used as the organs of popular opinion, are lia
ble, certainly, to many and serious objections.
The substitution of the state legislatures, al
though not entirely free from all objection, is
not so obnoxious to public reprehension as
any other mode which has been adopted or
devised. Some one or more of the gentlemen in the
executive department at Washington, seem to
be considered ex-officio candidates for the
Presidency. In regard, therefore, to an indi
vidual in the private walks of life, as he does
not challenge public attention by the glare or
patronage of oflace, if it be thought proper to
present him to the Union as a fit person for
the chief magistiacy, there seems to be a pecu
liar propriety in bringing him forward under
the auspices of xespefctable portions of the
community at large. Difference of opinion
may, and probably does exist, as to the most
proper time when this should be done; but the
members of the general assembly of Ken
tucky were impressed with the belief, that if,
on the one hand, it was unadvisable to exhib
it a premature anxiety, on the other, it was im
portant that there should not be a culpable
procrastination, indicating a cai'eless indiffer
ence about the object.
It was believed, moreover, that if they per
mitted the present occasion to pass without
any expression of their Wishes, it would be
too late, hereafter, to have any effect on the
formation of the general sentiment.
Indulging the hope that there may be a con
currence of opinion betW'een Ohio and Ken
tucky ou this subject, it, was the sincere desire
of the members of the general assembly of the
latter, that these of the former ehould hftve

preceded them in the declaration of their
wishes. But as the session of the legislature
here will terminate probably before or about
the commencement of yours, it was not
supposed probable that, if ypu shoijld, ehoose
to malce any expression of your opinions,
it could reach here prior to our adjourn
ment; and therefore it was not deemed proper
longer to delay the adoption of the enclosed
resolution. It will be extremely Ratifying to us, if the
state of Ohio should coincide and co-operajfe
with that of Kentucky on this interesting suh-
ject. The weight and influence to which your
state is justly entitled from her position inthe
Union, W patriotism and her population,
must and should give to any public manifestv
tion of her opinions and wishes on any, sub
ject, but more especially on that ot the no*
Presidential election, a most controlling and
extensive effect.
Whilst we frankly admit the possibility of
a bias on our part, towards a feUow-citizen
¦w;hom we have long and intimately known in
private as well as public relations, unless ire
are very much deceived, the many pledges he
has given his countrymen of a capacity xmd
disposition to promot* the general welfare, are
as notorious, as numerous and as strong, as
any which have been furnished by either of
the distinguished individuals towards whom
public attention is now directed. It is not our
purpose, nor is it necessary to pronounce an
eulogium, nor to dilate upon, or even- enume
rate the many and signal services which he
has rendered to our common countijr. They
speak for themselves in a most emphatic lan
guage, and are identified witi the most im
portant transactions of the Union during the
last fifteen years. We might recall your re
collection to the impartial, dignified, and uni
versally satisfactory manner in which he pre
sided, for aseries of years, in the House of He-
Ereseutatives of the United States, during the
ottest contentions of party; to the efficient
and distinguished part which he bore in the
declaration and prosecution of the late war;
to his agency in the negotiation of peace, and
in the convention of London, the oasis of all
our subsequent foreign connexions. We might
remind you also of the zeal with which he ever
espoused the cause of internal improvement,
and that ¦which he successfully displayed in
the extension and completion of the Cumber
land road. We might point you further to the
deep solicitude he exhibited in the support of
home manufactures, so essential to the pros-
ptrity of the Unitad Stktes; nor ctn thef riends

TO THE LEGISLATURE OT OHIO.

U9

of liberty ever forget the udent and intrepid
perseverance which he evinced in the cause of
Spanish America, so dear to every Western
bosom. Bven on the memorable occasion of
the proposed restriction on Missouri, although
weSnow that you differed from us, we are per
suaded that you 'will be ready to do justice to
the motives "by which (if nustaJcen) he was
animated, of preserving the canstitution frotn
what he believed would be a violation, of
maintaing the general tranquility, and of up
holding qie rights of the several states to
judge separately, and for themselves, on that
dehcate and difficult question'. We appre
hend that no mistake could be greater than
that which would impute to him the wish to
extend the acknowledged evils of slavery; for
we are persuaded that no one entertains a
stronger sense of its mischiefs than he does, or a
more ardent desirls, by all prudent and consti
tutional means, to extirpate it from our land.
We believe that it is his doliberate opinion,
that in any state, in which, from the relative
prq)ortion of the slave to the free population,
the expetimet may be safely made — a gradual
emancipation ought to be encouraged and ef
fected. And some of us happen to know that,
more than twentyyears ago, when the preSent
constitiition of Elentucky was adopted^ con
ceiving that such a comparative proportion then
existed here, he exerted himself in favor ef a
gradual abolition of slavery.
WhUe Mr. Clay has employed, in the nation
al councils, his best exertions to advance the
general weal, he has not been an inefficient or
careless advocate of our peculiar interests in
the West. His exertions to obtain relief to
the purchasers of the public lands, in conse
quence bf the extraordinary and unforseen em
barrassment of the times, are well known
Many years ago, in the Senate, he yielded his
bestsupportto a measure, having for its object
the removal of the obstruction, at the falls, to
the navigation of the Ohio river; and lately, at
his instance, an appropriation of public money
was made to explore, by skUlfiil engineers,
that river and the Mississippi, with the view
to the improvement of their navigation.
When abroad, far distant from us all, we have
much reason to believe that he made every ef
fort in his powerto liberate the Mississippi from
an odious and arrogant pretension, and to pre
vent the exertion of a pernicious foreigii in
fluence on the Indian tribes-, by an interdictof
British traders from among thetn. He has, as
far as we have understood,, tiniformly support
ed every measure in Congress, calculated to
increase among us the expenditure Of public
Boney on legitimate national' objects, and
thereby to dirninish theevil ot an unremitted
drain eastwardly, of the circulating medium.
Is it desirable to have a Western President,
who, while he will not be unmindful of his
duty to the 'W'hole, is well acquainted with
our peculiar interests, and is capable of an ad
vantageous exhibition of them I Is it desira
ble that the West should fairly participate in
the executive government of the' Union— that
ijuMatetf department, without wbou fsyors-

ble countenance nothing can be achieved?
There can, we would hope, bo but one answer
to thelse questions in the West. If there be a
coincidence of opinion between us on this
subject, and also as to the person ¦who should
be selepted, should we not endeavoi, by all
fair and honorable means, to effect the common
object? The western states arc distant from the seat
of the general government, and from the mass
of the population of the. Eastern states. If
they dtsplajr an Indifference on this interest
ing subject — if they fail to manifest their
'w;ishes by .an unequivocal declaration of them,
their sentinients may be unknown or misun
derstood!, arid their ¦weight unfelt. Buii when
our opinions shall be known, if united, we
have every reason, from our attachment, In
variably displayed toward the Union, to^-
ticipate, from the justice and magnanimity of
the other parts of the confederacy, a kind
and favorable hearing and a just decision.
Poirthe purpose of drawing the attention, of
Ohio to this subject immediately, and, of solic
iting her serious examination of the consider
ations ¦which we haye herein ventured to offer,
we have thought proper to address you , not in
your official^ but private character, hoping
and requesting tha^ you will mate such, use of
this letter als your good sense may recommend
as most proper to effect the object, by animat
ing Ohio, if possible, to an immediate co-oper
ation with Kentucky and Missouri, which
has ma,de a similar recommendation. If Ohio
can be induced to act in unison with Ken
tucky, you cannot fail to see the great impor
tance ofher doing it ¦without delay. Hoping
that you will receive this communication in
the apiritin which it is made, and that you will
use it advatntageously, we beg leave to sub
scribe ourselves your " ' '
Priends and Fellow-citizens,
W. T. Baeet,
R. C. AHnKESON,
J. Cabell Beeckim^idoe,
J. J. CjlITTBNDKir,
G. EobeBtson,
John Bq'W'an,
B. W. Patton.

INVTTATIOIir OF MR. CLAY TO A GAR
RARD DllfNEK.
At a Barbecue, near Lancaster, on the 4th of
July, 1827, the following resolutions were
unanimously adopted, by a large company as
sembled from different neighborhoods, in the
county of Garrard:
Resolved, That as' a testimony of the confi
dence of the people of Garrard, in the patriot
ism, talents, and integrity , of their distin-
giiished countryman, Henry Clay, he be in
vited, to a public dinner, to 'be! given him at
Lancaster, at such tnue as may pe most ooh-
renient to hisi.
1 Seuhei, That Geargo BobeirtSQB, Jsltn

150

ISrVITATION OP MB. CLAT

Tantis, Elijah Hyatt, Robert M'Connell, Wm.
B, Farrow, Thomas Kennedy, Thomas Millan,
Simeon H. Anderson,' John Rout, Daniel
O'Bannon, John Faulkner and John B. Jen
nings, be appointed a committee to commu
nicate to Mr, Clay,, the desire of the people of
Garrard to welcome him to their simple hos
pitality, in thier own county.
Lanoastee, 5th July, 1827.
Sie:— I am instructed by the committee, ap
pointed in, the '2d of the enclosed resolutions,
toinviteyou'to a Public Dinner, proposed to
be given you by the county of Garrard, at
whatever time shall be most convenient to
yourself during your sojourn in Kentucky; and
I am also instructed by the committie to as
sure ybu of their individual respect and undi
minished cbrifidtoce, notwithstanding the cal
umnies of factious and disappointed men.
Allow me to add that, iu inaking this com
munication, it is peculiarly gratifying ,to me,
at this eventful conjuncture of our affairs, local
as well as national, to be the organ of the good
wishes for your welfare, an,d for thc success of
your cause, which are felt and have been most
signally manifested by my county — a county
which, if distinguished for nothing else, has
some acknowledged claims to a good name,
for the constancy and disinterestedness, and
(I will say) coiisequ'ently, the general recti
tude of its political opinions; and my gratifi
cation is in no Small degree increased, by the
fitness of the opportunity ¦which this occ3,sion
offers me, to bear' my humble testimony in
your behalf, against the calumnious charges
of Gen. Jack;son, and some of his disappointed
friends. Associated with you for years in a public
service, then full of peril and difiiculty, 1
have ever found, in your political conduct,
unquestioned purity of motive, elevation pf
sentiment, undisguised frankness, and invin
cible intrepidity. But these claims (strong
and undmiable as they are) to the approba
tion and gi-atitiide of your country, are multi
plied aud enhanced by the incidents con
nected with the last three years of your life.
The late Presidential election placed you in
a situation singularly delicate and responsi
ble. Unawed by threats, and unseduced by
promises or hopes, you obeyed the dictates of
a sound mind and a pure conscience, and fear
lessly contributed, by your vote, to the elec
tion of an individual eminently qualified in
every way for the high trust — one who had
served his country at home and abroad, for
forty years, faithfully, and successfully— -one
who enjoyed the confidence and friendship of
Washington, Jefferson, Madison and Monroe
— one who concurs with yOu in the policy
best adapted to promote the prosperity and en
sure the union and harmony of these states—:
who cherishes and advocates, aud will encour
age to the limit of constitutional power, the
American system of roads and canals, of do
mestic industry, and of a diffusive education —
one who h»8 adminjlBtertd th« gorerninent,

thus far, in a manner which could not be dis
paraged by a comparison with any precedi'iig
administraltion — wno is national and liberal Mi
his principles, impartial in his favors, hon
est and patriotic in all his purposes — ^who wag
the choice of a large majority of thepeople of
the United States, as a fair induction of ac
knowledged facts wiU demonstrate — ^the
choice of General Jackson himself (next to
himself) — the choice of your o'wn district:—
and, as I have never doubted, the choice (in
preference to the "Hero") of the people of
Kentucky. Tour knowledge of the disparity
of the rival candidates, in fitness for so high
a station — ^your devotion to the cause of inter
nal improvement and domestic manufactures
— your regard for the welfare and the consti
tution of your country, left you no safe, or con
sistent, or honorable alternative. Even your
enemies cannot deny, that theyhad no right to
expect, from a knowledge of your principles
and your opinions, that you would vote for
Gen. Jackson; and many of them candidly ad
mit that you could not have done so consist
ently. .And if you had suffered yourself to be
tempted' or provoked to such a. suicidal and
parricidal act, it would be quite easy to
show that you could not have made him
President. I have personal reasons, too, for
knowing, if any man living can know, that in
voting for Adams, and accepting the station
you now hold in his Cabinet, your motives
were pure and patriotic, uninfluenced by any
selfish aim or expectation.
I never doubted that you would act asyou
did. I never doubted that the vote of Ken
tucky would not be given to Gen. Jackson,
under any circumstances : or that the votes ofll-
linois and Missouri would not be given to him,
whatever your course might have been. And for
the people of Kentucky, I will say, that I do
not believe they ever were in favor of electing
Gen. Jackson President of the United States—
although, in his famous Harrodsburg letter, he
intimates that you and Mr. Adams are corrupt,
and are engaged in a crusade against the
people, and that He is their great Atias.
Go on a^you have done — "be just and fear
not" — and that Government which is the best,
and that administration which is the cheapest
in the world, will continue to prosper mtore
and more,, until their complete triumph. In
ordinary times, it would not be proper, or con
sistent with my self-respect, to address you
in a style so unusual, and which, by some
might be deemed adulatory. But I felt it due
to truth, and to a just magnanimity, recollect
ing, as I do, that our public intercourse and
personal acquaintance commenced under cir
cumstances not the most propitious to the in
terchange of kind feelings or favorable opin- ;
ions. Believing that the same intimate
knowledge which I have acquired of ;yOur
character, by long and scrutinizing observa
tion, will produce the same effects on others
that I am happy to avow it has had on me, I
cherish the expectation that, ere long, many of
those who, from prejudice or delusion, are
counted your enemies, will be nwnbered

GARRARD ADDRESS OUT PRBSIDEUTIAL ELECTION.

151

among your Mends, and feel regret and sur
prise that ihey ever doubted the integrity of
your conduct.

be preferred for civil office? Whether the prin
ciples consecrated by the approved adminis
trations of Washington, Jefferson, Madison
Accept, sir, for my colleagues of the com- and Monroe, shall be upheld or ti-ampled down

mittee, and for myself, our most respectful sal
utations. G. ROBBRTSOIS".
Hon.H. Clay.

GABRARD ADDRESS OS PRESIDEN--
TIAL E1.ECTI0N.

At a vei'y large and promiscuous assem
blage of the citizens of Garrard county, at the
court house, on the 19th of Wovember, 1837,
county court day for said county. Gen. John
Faulkner being appointed chairman, and Jo
seph Hopper secretary, after suitable explana
tions of the objects for which the meeting was
organized, the following preamble and resolur
tions were adopted with striking unanimity,
only two or 'three voting in the negative:
The "Signs of the Times" aie visibly por
tentous. Upheld by the virtue and intelligence of the
people, our blessed government, essentially
moral in its structure, has passed through
many trials in peace and in war. But it is
not indestructible. Whenever the majority
fail to exercise the reason and stern virtue ne
cessary to the conservation of such a moral
system, the wreck of their liberty will rebuke
their degeneracy, when it may be too late for
repentance to expiate the errors of the past or
repair their ravages. Wise men feel that a
fearful crisis is now before us, which will,
more than any other, try the principles of
the people and fix the destiny of the constitu
tion. The approaching election of chief magis-
tiate of the Union, is pregnant with either
blessings or calamities, which will be exten
sively felt andlong remembered.
Involved in the issue is safety or peril. It
will subject to a test, novel and eventfiil,
the value of free suffrage; and will evince
whether, in the exercise of the elective fran
chise, reason or passion — judgment or feeling,
shall predominate.
In the decision of this important issue, the
people are called on to determine, not merely
what individual shall .fill the Executive chair;
this is personal and comparatively immateri
al. But they must incidentally decide other
and more momentous questions — such as
these — whether the President shall be an able
and experienced, statesman, well-tried — or a
lucky and blazoned warrior, self- wiQed . and
impetuous, and inexperienced in the practice
or duties of the office? Whether the first civ
il station in the world shall be conferred for
the benefit of those whogaveit, or for the grat
ification of him who asks it? Whether, if it
shall be bestowed as the re -a; ard of service, it
shall be a justtribute to the distinguished Ci
vilian, or the pension of the valiant Soldier?
Whether civil or military pretensions should

by perilous innovation? Whether the "Amer
ican System" shall be sustained and prudent
ly extended, or condemned as mischievous and
unconstitutional? And lasti "though not
least," whether, by sanctioning the unjust
means employed to degrade and supersede
those now at the head of affairs, an example
shall be set which will encourage the indul
gence of the worst passions, and reuder the
Presidential election in future the occasion of
incessant crimination and commotion, apt to
result in the triumph of force, falsehood and
vice? or ¦wrhether, by discountenancing the
premature haste and rancorous spirit of the op
position, the people will assert their own dig
nity, and show that the canvass shall be, as it
has heretofore been, an honorable competionin
adecorous appeal to the intelligence oi freemen?
These vital considerations and many others,
minor and consequential, are presented in the
pending controversy between Mr. Adams and
Gen Jackson; and in the infiuenoe which they
shall be found to have, it will remain to be
seen, whether we shall have a new assurance
of the stability of our free institutions, or a
plain indication of their tendency to decay and
dissolution. The political doctrines and the principles of
policy foreign and domestic, which charac
terise the general tenor of the administra
tions which have preceded that of John
Quincy Adams, aud under the operation of
which our government has attained an ele
vated rank in the opinions and affections of
mankind, are hapily exemplified in the unu
sual degree of prosperity which is daily re
sulting from the wisdom and pradence with
which his administration is giving more exten
sive developments of their soundness and ben
eficence. We are at peace with the whole

world. Our treasury is ample. We pay no
taxes. Our country is steadily progressing in
improvement, physical and intelluctual. The
government, so far as the President is respon
sible, is administered as providently and
economically as it ever was in the hey-day of
republican simplicity. No citizen is oppress
ed by federal authority; and we only feel the
general government in the blessings which it
confers. ,
Since his induction, Mr. Adams has done
nothing, in which he is not sustained by the'
example or opinion of all his predecessors and
by the authority of the people who continued
to ratify and approve fOr thirty-six years,
measures which, when attempted by him, are
denounced by Jackson politicians as daring
usurpations. Por desiringthe extension ofthe
Cumberland Road through the western states,
he has been abused for encroachment on state
For favoring the protection, to a pru

dent and necessary extent, of our domestic in
dustry, agricultural and manufacturing, he
has been charged with a wanton violation of
the constitution. For treating our South

152

GARMRD ADDRiSSS ON PRESIDINTIAL BLBOTIGN.

American neighbors respectfully, he has incur
red, the imputation of a design to unite our
destinieSjWith theirs. For being willing, with
the majority Of the Commissioners at Ghent,
to continue in force the article of the treaty of
'83, in relation 'to the Mississippi, the people
have been told that he attempted to sell the
navigiition of that great river. When the op
position frustrated the colonial negotiation by
espousing the side of England, they endeav
ored to make the responsibility of the faijure
recoil on him and his cabinet. All his acts
are misrepresented; his meaning perverted; his
motives questioned; his language distorted,
and himself falsely charged with prodigality
and corruption. Many are madi Uneasy with
visions of chimerical danger — and the Ameri
can people, more highly favored than at any
former period, a^;e divided into two anomalous
parties, in which all aucient badges and feel
ing, are buried in the all absorbing question —
shall Andrew Jackson and his partizans be el
evated to supreme power on the ruins of Mr
Adams and Mr. Clay? So acrimonious are
many of the complainants, that they employ
all the resources of opprobious epithets and
vulgar defamation. Such rudeness and in
justice to such men, are not only inconsistent
with the personal respect due to them as gen
tlemen, but, with the forbearance which their
stations should exact; and are ominous, if ap
proved, of the degradation of exalted worth,
and of official dignity. "If such things are done
in the green tree," what may we not expect "in
the dry?'. The persecutors of either of these
honest men, may be earnestly asked, "what
evil hath he done you?" The answer must be,
like that of Aristides on a similar occasion,
"thou art just." ,
Before Mr. Adams had taken the oath of of
fice, a party , formidable for nunaber'and acci
dental influence, composed of disaffected and
disappointed men of discordant feelings and
principles, was organized for the avowed pur
pose of prostrating him and Mr. Clay, and de
nouncing their conduct, whatever it should
be, "right or wrong." They adopted the ap-
S' ropriate wateh-words— "They must be put
own if they are as pure as the angels at the
right hand of God; and true to their pur
pose, they have left no ineans untried for
effecting their unworthy design. Judged by
their acts, it would seem that their first max
im is, "the end justifies the means." They
had learned from history, sacred and profane,
that, during transient paroxysms of popular
excitement, the multitude, roused to phrenzy
by the arts of the designing, had proscribed
their benefactors and most virtuous men.
And boldly expbrimenting on the credulity
and presumed aptitude of the body of the
people to believe indefinite charges of delin
quency against men high in office, "the Com
bination" have endeavored to excite public
indignation against Mr. Adams, and the Se
cretary of State of the United States, by
charges as false as they are foul. By a dex
terous use of these, many honest men, unac
quainted with the artifice and resource of dis

appointed ambition, have been deluded almost
to fanaticism; an4 seem to suppose that their
liberty is in danger, unless by exaltihu He
idol of military enthusiasm, the administra
tion can be revolutionized. The malcontents
are invited to the standard of a venerated and
laurelled soldier, valiant and glorious, but in
every other respect totally unfit for the cabinet.
— a soldier, the accidents of whose eventful life,
public and private, manifest the unreasonable
ness of his claims to the civil eminence, to
which, unfortunately, for the peace ofthe coun
try and for his own posthumous fame, he now
a^ires. It is not because he is well qualified, that
his leading adherents prefer Gen. Jackson to
Mr. Adams, but because he is the only individ
ual of their party who has any chance to suc
ceed. His civil qualificatilons are not only
greatly inferior to those of Mr Adams, but cer
tainly very unequal to those of inany of his o^wn
party. But it was not the fortune of any of
the latter to command at Orleans; the acciden
tal circumstance of doing which, is the sura
total of the General's recommendations. —
Without this event bo human being would
ever have thought of electing him to the Ex
ecutive Chair of the U. States.
This his partizans know. But they know
too the spell of a military name on thepopular
affections — and that it covers a multitude of
glaring defects: and hence they use the battie
of Orleans alone, as the talisman for effect
ing their contemplated revolution. The 8th
of January, the anniveisary of Kentucky's
disgrace, is therefore vociferated as if it eh-
titled the renowned Hero to everything. If
Andrew Jackson has any other than martial
claims to the office which he anxiously seeks,
let his friends present them. There has been
no attempt to recommend him by an address to
the understanding. Every effort in his favor
has been directed to the passions. This alone
is an admission of the insufficiency ofhisciyil
pretensions, and, with rational men, should be
decisive. He has admitted his own unfitness. Not
only does his civil histoiy show that he never
rose above the grade of mediocrity, but he has
magnanimously acknowledged his want of
qualifications for a seat in Qpngress, or on the
judgment Bench — and is he who is unequal to
the duties of these comparatively humble pla
ces, competent to guide the a&irs of a whole
nation? If it be intended that he shall be on
ly the nominal President, we say the pension
is too high, and the hazard too great.
The most memorable act ofthe General's po
litical life, is the vote which stands against
him on the country's record, in opposition fo
an expression of approbation by Congress,
of the public life of the Father of his Country,
when on the eve of retiring forever froin the
public service. WasKiiigton had enemies, and
his administration too met with opposition
and reproach.
The same spirit is yet alive, and instig»tjB«
the violent outcry againstthe present amnin-
istration. Nothing Cut the name of Washing-

GARRARD ADDRESS ON PRESIDENTIAL ELECTION.

153

ington saved him from overthrow: may his
example save those who, for following his pre
cepts, are subjected to the same persecution
which he outlived.
The claims of the Hero of Orleans to civil
preferment are certainly not increased by this
inexplicable vote; nor by the contemptu
ous terms in which he ridiculed Mr. Madison's
pretensions to the presidency; nor by his threat
to chastise a Senator in the Capitol, for eu-
quiring into his public conduct; nor by the in
jury which he recklessly endeavored to inflict
on the State of Kentucky, by unjustly charg
ing her volunteer soldiers with "inglorious
flight" at Orleans, and by refusing to do justice'
when convicted of injustice; nor by the indeli
cate manner, in which in his Harrodsburgh
letter he meant to speak of Mr. .Asdams as the
enemy of the people, and of himself as their
friend and candidate; nor by his artful efforts
to destroy the reputations of Mr. Adams and
Mr. Clay, by insinuating that he could convict
them of "bargain and management," when his
own boasted ¦witness acquits them, and proves
that, if there was any tampering, it was on the
General's side.
Next tothe 8th of Januai-y, with which some
declaim very handsomely who were opposed to
the war, the friends of the General have prof
ited most by asserting, that he was the Peo
ple's President, and that he and they were
corruptly cheated out of their rights. This
has been so often and confidently reiterated
that many honest men believe it, and for this
reason alone, incline to espouse his cause.
That he was not the object of a majority of
the people's preference, plain facts will indis
putably prove to all who have eyes to see or
ears to hear, and the faculty of addition and
subtraction; and this must have been well un
derstood by those who gave the first impulse to
this wide spread delusion. The Gen. was not
only not chosen by a majority of the people,
but, as is evident, Mr. Adams received a large
plurality of votes given by the people, and
would have gone into the House of Represen
tatives with a correspondent plurality of the
electoral votes, had the majority of the people
of each state controlled the whole electoral
vote of the State, and had not Mr. Adams been
the victim of "intrigue, bargain and manage
ment. Of the free votes represented in the
electoral colleges, Mr. Adams had about 4,000,-
000, and Gen Jackson had only about 2,000,-
000: By the constitution the slave states are
entitied to the electoral weight of 3-5th of their
slaves who do not vote: add these, and still Mr.
Adams has a decided majority over the Gener
al's number, of bond and free, black and white.
But in some States where Mr. Adams had a ma
jority of the whole popular vote, the General
obtained a majority of the electors. This re
sulted from the organization of the districts. —
And in some other states where Mr. Adams
was stronger than any other candidate, the
friends of the others combined ou the General,
supposing there was no danger of his election.
Thus this candidate of the people received,
nominally, 99 electoral votes and Mr. Adorns
20

only 84 — when, if the will of the people had
been consulted Mr. Adam's vote must have
been at least 98, and that of his competitor
not more than 85. It is not denied, that Mr.
Crawford's friends preferred Mr. Adams tothe
General, and there is do doubt, that a majori
ty of Mr Clay's felt the same preference. —
Hence it is evident, that Mr Adams was pre
ferred to Gen. Jackson by an over^^helming
majority of the American people, and was,
therefore, the people's candidate.
Equally fallacious, but far less excusable, is
the plea of "bargain" in the election by the
House of Representatives. This is a second
"Popish Plot" — and its informer, whoever he
may be, a second Titus Gates, and should
meet with execration in common with those
who concocted a plot so diabolical. They
have the hardihood to ask honorable men to
accredit the imputed corruption of distinguish
ed citizens who have been their country's
pride for many years, and to degrade them, not
only without proof, but against the proof of the
accuser. Gen. Jackson well knew that Mr.
Clay could neither be bribed nor awed to vote
for him — and he also kaew that, if he could be
guilty of such a suicidal act as to give in his
adhesion to him, he could not have elected
him. The General with Mr. Clay's assistance
could not have obtained more than nine
states, and Mr. Adams on the final ballot
must have had at least 15. Therefore, there
was nothing to be gained by bargain, and no
motive to enter into it. Mr. Clay did not de
sire the place of Secretary; but neither his
friends nor his enemies allowed him to refuse
it. Unable to induce Mr. Clay to enlist under
the military banner, the disappointed are pro
voked to attempt by calumny to put him out of
their way. They cannot succeed untU they
put him down; and it is plain, that the prime
object of their warfare is to prostrate him. If
he had not become Secretary of State, there
would either have been no combination, or if
any, it would have been of a character very
different from the Jackson party. The Gen
eral was brought out first as a candidate for
the purpose of frustrating Mr. Clay's prospects
and of electing Mr. Adams, who was the Gen
eral's first choice until he had hopes for him
self, and afterwards his second choice. And
now he and Mr. Clay are hunted down, by a
party whose motto is, "Jackson and Reform,"
or proscription aud expulsion of all who will
not enlist in their service.
The westis obviously and peculiarly inter
ested in sustaining this administoation. Do
we desire the continuation of the Cumberland
Road, commenced under the auspices of Jef
ferson, and the opening ofthe Ctfesapeake and
Ohio Canal, projected by the benevolent mind
of Washington? And do we wish to partici
pate in the incalculable blessings, political,
commercial and fiscal, which these great im
provements would produce? Do we feel the
necessity of protection to domestic manufac
tures and to our agriculture? The opposition
denoulice tiie present administration for favour
ing these measures: and General JacKson has

154

GARRARD ADDRESS ON PRESIDENTIAL ELECTION.

not found it convenient to disclose his opin
ion of the "American System." He conceals
it, and suffers hiiuHelf to be declared in fa-
vo' r of the system where it is popular, and
against it where it is not acceptable. Let him
come out upon this subject explicitly, and his
hopes of election will be blasted. If he is
friendl) to the system, nothing can be gained
by preferring him to an abler and surer friend.
But if, as almost certain, he is hostile to it,
what may not its friends, and its enemies too,
lose by his success? It is earnestly to be de
sired, that Ihe people may consider this sub
ject dispassionately, and act wisely and pru
dently, regarding measures, not men. In elect
ing Gen. Jackson there is great peril — but in
re-electing Mr. Adams there is safety. He is
unexceptionably moral; he is a plain and tem
perate republican ; he is fully competent; he is
the man of whom Washington said in 1797,
that he was the most useful functionary in the
foreign service; the man who enjoyed signal
evidences of the confidence of evsiy President
of the United States, and of the admiration of
General Jackson until it became his interest
to crush him.
By approving the conduct of this gifted and
much wronged citizen, the people will do jus
tice to him and to themselves, and will rescue
the country from the consequences of electing
> a General, with the transient apprehension of
whose success Mr. Jefferson, Mr. Madison, and
other patriarchs, trembled for the safety of the
Republic. It is respectfully submitted to the patriotic
and considerate among those who disapprove
the leading measures of Mr. Adams' adminis
tration, whether they reasonably expect any
advantage, by electing General Jackson, equal
to the permanent injury which such an event
may inflict.
Military renswu has been fatal to liberty.
It overran the freedom of Greece — of Rome —
and of every other republic that has ever suf
fered itself to be spell bound by its fascina
tions. Bonaparte aud Caesar won more battles than
General Jackson ever achieved, and were cer
tainly his superiors in general knowledge. —
But what free people would be willing to con
fide their destinies to such rulers?
Washington was "a military chief" — ^But
there has been only one Washington. The
name of our dead Washington is worth more
to us, than all the living Washington s in the
world. He was not only "first in wai-" but
"first iu peace and first in the heai-ts of his
•countrymen." It was not his victories in the
field, but his victory over himself, that lifted
Washington sfoove all other men. He was
honored with the Chief Magistracy not for
being a successful wamor, but for possessing
those pre-eminent moral excellencies, the
known destitution of which is an insuperable
objection to the Hero of New Orleans
We delight to confer appropriate honor on
our distinguished Hero. But we should over
leap the boundaiT of gratitude and prudence,
hj making him fresident. Wedo not believe

that Gen Jackson would wish to destroy the
liberty of bis countiy— nor that, if he shoild
the people are yet prepared for such a catastro
phe, but we would deplore the example, as
well as fear many of the consequences imme
diate and remole, of his election to the Presi
dency; and deem it wise to profit by the bisto-
tory of the world, and avoid the rock on which
the liberty of past generations has, been
wrecked. Wherefore, Resohed,-— ist. That it is the
duty of the Iriends of order and good govern
ment, to employ all practicable and honourable
means to pronlote the re-election of John Q. Ad
ams; that we approve, as preparatory to this
end, the convention proposed to be held at
Frankfort, on the l7th of Dec. next, to select an
electoral ticl^t, favourable to the present ad
ministration, and that Francis P. Hord, Dan
iel Obannon, Tyre Harris, Thomas Kennedy,
Benjamin Mason, Simeon H. Anderson and
Alander Sneed, be appointed Delegates to rep
resent us in that convention.

SPEECH AT CLAY FESTIVAL.
As the organ of the neighbors of our distin
guished countryman and guest, to whom they
have dedicated this Kentucky Festival as a
tribute of their respect for him eis a man and
of their gratitude for the eminent services of
his long and eventful public life, I now pro
pose a crowning sentiment, which, as we be
lieve, wUl be echoed by the united head and
heart of this vast multitude, of both sexes,
and of all ages and denominations.
We have assembled, my countrymen, not
to worship an installed idol, nor to propitiate
patronage by pouring the incense of flatteiy
at the feet of official power, but to greet, with
heart and hand, an old patriot returned to the
walks of privaiie life with a consciousness of
having, through all the vicissitudes of incon
stant fortune, always endeavored to do his
whole duty to his whole country, and with the
memory also of deeds of which the proudest
on earth might weU be proud. [Cheers.]
By the good and wise of aU parties, who
feel as they should ever feel, such an occasion
as this must be approved as the offspring of
emotions which should be cherished by eve
ry, enlightened friend of his country's in
stitutions, and by every disinterested admirer
of the noble of his species. We should honor
those who honor ui. Distinguished services,
by whomsoever rendered, should be gratefuUy
remembered, and exalted talents are entitied
to universal respect. But, when one of our
o^wn countrymen, by the force of his own ge
nius and virtues, has risen from poverty and
obscurity, and not only ennobled his own
name but illusti'ated that of his country, no
personal jealousy or political prejudice should
chill the homage of that country's undivided
heart. And when, as now, we behold him,
a plain citizen, grown grey in the publie ser
vice, and letiiea to his farm to hre and die

SPEECH AT CLAY PESTIVAi.

155

among us, what Republican, what Keniucfcion,
can rebuke the sympathy and respect here this
day manifested towards him, in a manner un
exampled, and far more grateful to his heart
than the offer of the highest official station on
earth? On such a day and at such a place, all,
of every rank and name, inight honorably
unite in this common offering of cordial re
spect for a fellow citizen whom, perhaps, we
shall never again see and hear as we now see
and shall heai- him, and who honors us as
much as he can be honored by us. To the
thousands here present the scene around us
is peculiarly imposing, and suggests reflec
tions both encouraging aud ennobling.
Not more than half & century has elapsed
since the Indian, with hia tomahawk, lurked in
the cane-brakes of our pioneer fathers. With
in rather less than that eventful period, a
beardless stranger was, for the first time, seen
on the streets of the then littie village of Lex
ington. Like Franklin when he first visited
Philadelphia, a poor and friendless orphan
boy had left his native Virginia and come for
lorn to this land of promise, to seek his for
tune and fix his destiny. He leaned alone on
Providence, a widowed mother's prayers, and
the untutored talents with which God had
been pleased to bless him. Those prayers
prevailed — and that Providence and those tal
ents sustained him in all his trials, and soon
pointed him to a high and bright career,
which none but the good and great can ever
run with honor or success. That career he
has, so far, run with a. lustre unsurpassed.
The Forum and the Senate have been adorned
and exalted by the graceful displays of his
rare genius, and the overwhelming power of
his Dcmosthenian eloquence. His name is
identified with the forensic, political, and di
plomatic history of the United States for the
fast thirty-six years; and his mark is legible
on every important act of national legislation
or American policy, which has been either
adopted or discussed in this Union, within
that period. He has always been the friend
of the honest laborer — the champion of domes
tic industry, and a sound currency — the ad
vocate of equal rights — and the defender of
the constitution, which, though excellent as it
is, might, in his judgment, still be improved
by the prudent modifications of experience.
His voice has been heard and his thunders
felt, in the cause of civil and religious liberty,
in evei-y clime. And always and everywhere,
the Kentuckian has been distinguished for
lofty and comprehensive patriotism, republi
can simplicity, practical wisdom, and self-
sacrificing independence. Thewhole reading
world knows and admires him as the Ameri
can statesman and orator, whose moral power
and self-devoting patriotism, more than once,
saved his country from impending ruin. And
when, like Washington, he determined to re
tire forever from the theatre of public action
where he had won so many civic victories for
his country, and plucked so many grden lau
rels for his own head — when he resolved to
exchange the toils and troubles of public life.

for the repose of retirement, the verdant lawns,
the roving herds, and domestic sweets of Ash
land — when, for the last time, he stood before
thc Senate, to make the solemn announcement,
aud take his everlasting leave, — not an eye
was dry — not a heart unmoved; and let his po
litical opponents say what they may, that
parting scene was felt there, and here, and
everywhere, as the separation of the soul from
the body. [Great cheering.]
The measure of his fame is now full — and
ripens for posterity.
Thus, while the infant Kentucky has grown
to a great and renowned State, and the small
viUage of Lexington to a beautiful and clas
sic city, their adopted son has also risen to an
eminence in the judgment and esteem of en
lightened men, which few on earth have yet
attained, or can ever hope to reach; and now,
surviving almost all of those who witnessed
his humble advent, he reposes, in health ot
body and health of mind, on the bloominghon-
ors of a political patriarch. And here we may
all behold a striking and beautiful exemplifi
cation of the hopeful tendencies of our free
and equal institutions, and of the inestimable
value also of talents faithfully employed arid
rightly directe.d.
Resisting the syren voice of vulgar ambi
tion, Kentucky's adopted son faithfully served
his country for that country's sake; and now,
after steering the constitution from the whirl
pool of consolidation on the one side, and
dissolution on the other, the Ulysses of Amer
ica has laid aside his heavy armor, and come
home with an untarnished shield. He wants
no Homer to exaggerate or embalm his deeds —
Already stereotyped, they will tell, iu all
time, for themselves, without the aid of poe
try or of song.
His public life illustrates the difference be
tween the. statesman and the politician — be
tween the enlightened patriot who goes for
the welfare and honor of his country, in defi
ance of all considerations of personal ease or
aggrandizement, and the selfish demagogue,
who, always feeling the people's pulse or look
ing at thc weathercock of the popular breath,
counts, as the chief good on earth, his own
exaltation, by any means, to some office or
trustl which he is not qualified to fill with
honor to himself, or advantage to the public.
Whilst a swarming tribe of selfish placemen,
and vulgar aspirants after ephemeral popular
ity, like common birds, have been skimming
the eai-th and amusing the people with their
versatUity, their colored plumage, and their
mock notes— the orphan boy of Lexington— the
self-made man of America, poised on eagle s
pinions, has soared t» the pure sky, with his
eyes fixed on the sun— untU fatigued at last,
by his airy height, he has rested on the up
lifted arm of that great commonwealth, *hich
is emphatically styled "the land of the free
and the home of the brave." And there, on
that strong right arm, let him rest m peace,
until, if ever, he may choose, once more, toby
his strength in the loftier and less peaceful
iBcenes of political life.

156

SPEECH AT CLAY FESTIVAL.

He has encountered the envy and obloquy
inseparable from exalted living merit. So did
Socrates, and Cicero, and even our own God
like Washington — and so must every honest
patriot, who lives and acts for his country and
for truth. The pathway of such a patriot
will ever be beset with the Cleons and Clodii
of the day. But remember that his^ straight
and narrow course is the only one which could
secure for him honorable renown, or the grate
ful remembrance of an age to come. Such has
been the conduct, such the aim, and such, of
course, the doom of our distinguished neigh
bor and friend. Ambitious, we know, he has
always been. But he has been ambitious —
not of office, nor of fleeting popularity — but of
that sacred fame which foUows and hallows
noble deeds. His ambition, totally unlike
that of the unprincipled egotist, has resem
bled rather that nobler mould of Cato, or of
Curtius. And this, more than triumphal
scene, is only the dawn of that light with
which time and the approving judgment of
mankind will encircle his name. Already,
this day, he enjoys, in retirement, a reward
which no earthly place or title could ever con
fer. Men wUl differ in politics as in other things.
But let them honestly differ, like christians
and republicans, in a spirit of toleration and
charity — and not, as untamed savages, with
the brutal ferocity of hungry tigers. When
we explore his whole public life, the unrelent
ing crusade, so spitefuUy and perseveringly
prosecuted by some leading men against this
venerable and unbending statesman, might re
mind us of the saying of Tacitus — that, by
murdering Helvidius, and Thrasea, and Seneca,
Nero expected to cut up public virtue by the
roots. Could the ostracism or ruin of such a
man advance the glory or promote the happi
ness of that counti'y which he has so much
honored and helped to save? Faultiess, we
admit, he has not always been. Who ou earth
ever was, or will ever^be? But, had he been
even perfect, imperfect men woilld either not
have known, or knowing, not acknowledged
it. Blind allegiance to party is not only th6
canker of liberty, but the murderer of charac
ter also. Those who look through the micro
scope of a party or a faction, instead of seeing
for themselves, in the open sunlight of heaven,
will never behold anything as it is. Many
have only seen our guest through this false
medium: and they cannot, therefore, know or
appreciate his true character. It is not our
purpose, here, or elsewhere, to vouch for the
rectitude of all he ever did, or said, or thought.
But we may be allowed now to say that even
those, whose estimate of him is most unfavora
ble, generally concede that he is high on the
roll of the most distinguished men of the age,
and acknowledge, moreover, that he has,
through a long public life, stood steadfastly by
his principles and maintained them, on all oc
casions, ably, boldly, and manfully. Let
them then judge him by the golden rule.
But whatever maybe thought of him now, or
whatever may be his future destiny on earth.

his posthumous fame, at least, is secure.
When the rival passions, which have assailed
him, shall have 'been buried at his tomb, his
character as a patriot, orator and statesman,
will shine forth, clear and refulgent; and like
the setting sun of a stormy day, it wiU pass
the horizon cloudless, spotless, and full-orbed.
[Great applause.]
Identified with his country's fortune, his
memory will live iu the history of that conn-
try's glory — and with Washington's, aud Ham
ilton's, and Madison's, Marshall's and Patrick
Henry's, it will be embalmed in the heai-ts of
the virtuous and the wise, as long as eminent
talents, signally devoted to the welfare of our
race, shall be revered among men.
And, in some future age, when the young
Kentuckian, -with curious eye and- palpitating
heart, shall explore the Pantheon of Ulustri-
Americans, soon attracted by the most

honored group, he will there at once behold a
graceful and majestic statue of granite, and
casting an anxious glance at the sculptured
pedestal, he wUl read, with unutterable emo
tions of gratitude and pride —
HENRY CLAY, OP KENTUCKY.
Without detaining you longer, I 'wUl an
nounce the sentiment, to which the hearts of
millions, now and for ages, will approvingly
respond. HENRY OLA Y— Farmer 0/ Ashland^Pa-
triot and Philanthropist — the American States
man and Unrivalled Orator of the Age—iRuS;
trious abroad, beloved at home. In a long
career of eminent public service, often, like
Aristides, he breasted the raging stoi-m of pas
sion and delusion, and by offering himself a
sacrifice, saved the Republic; and now, like
Cincinnatus and Washington, having volunta
rily retired to the tranquil walks of private
life, the grateful hearts of his countrymen
will do him ample justice; but, come what
may, Kentucky will stand by him, and still
continue to cherish and defend, as her own,
the fame of a son who has emblazoned her es
cutcheon with immortal renown.

[From the Obsv. & Reporter, 14th July, 1852.]
BURIAL OF HENRY. CLAY.
Saturday last, the 10th of July, was a day
ever to be remembered in our city. It was
the day consecrated to the last solemn funeral
rites to the remains of our illustrious friend
aud neighbor, Henry Clat, and wUl be re
membered by all who had the honor of partic
ipating in the mournful exercises of the occa
sion, not only because of the consignment then
to their final place of repose of the remains of
our great fellow-citizen, but as having been
the occasion of a larger assemblage of people
than was ever before congregated in the limits
of our city, and of having been one general
scene of mourning and sorrow. The pageant
was, probably, never surpassed on any similar
occasion in the United States, and thetestimo-
no of respect aud affection furnished by every

BURIAL OP HENRY CLA,Y.

157

outward indication was such as no man save
Hbnet Clay could have commanded.
We scarce know how to begin a description
of this great aud melancholy occasion. It was
such a display as we are not in the habit of
¦witnessing in the West, and the like of which
we have never before been called on to por-
fa'ay. Were we to write a week, we could
scarcely begin to do justice to the subject, and
must crave the charity of our readers for fall
ing so far short of that which we would have
liked so much to have accomplished.
On Friday evening, the committee of the
Senate, consisting of Messrs. Underwood, Cass,
Houston, Jones, Pish and Stockton; the com
mittee appointed by our citizens to escort the
remains, accompanied by a committee from
the city of New York, a committee from the
citizens of Dayton, Ohio, the 'Clay Guards' of
Cincinnati, and a deputation of seventy-six
young men from Louisville, together with sev
eral military companies from the latter place —
arrived at the railroad depot in this city, in
charge of the remains. The Hon. Joseph R.
Underwood, in behalf of the Senate's commit
tee, there addressed the committee sent from
this place to receive the remains, in a few feel
ing and appropriate remarks, formally sur
rendering their precious charge to the care of
the Lexington committee. His address was
replied toby the Hon. Geoege Robertson, in an
eloquent and touching manner. We are grat
ified to have it in our power to lay before our
readers the remarks of both gentlemen, as fol
lows: JUDGE UNDERWOOD'S ADDRESS.

Mr. Chairman, and Gentlemen of ihe Lexington
Committee: Mr. Olat desired to be buried in the Cem
etery of your city. I made known this wish
to the Senate after he was dead. That body,
in consideration of the respect entertained for
him, and his long and eminent public ser
vices, appointed a committee of six Senators
to attend his remains to this place. My rela
tions to Mr. Clat as his colleague, and as the
mover of the resolution, induced the President
of the Senate to appoint me the Chairman of
the Committee. The other gentlemen com
prising the Committee are distinguished, aU
of them for eminent civil services, each having
been the Executive Head of a State or Territo
ry, and some of them no less distinguished for
briUiant military achievements. I cannot
permit this occasion te pass without an ex
pression of my gratitude to each member of
the Senate's Committee. They have, to testi
fy their personal respect and appreciation of
the character, private and publie, of Mr. Clat,
left their seats in the Senate for a time, and
honored his remains by conducting them to
their last resting place. I am sure that you,
gentlemen of the Lexington Committee, and
the people of Kentucky, will ever bear my as-
,Bociates in grateful remembrance.
Our journey since we left Washington has
been a continued procession . Everywhere, the
people have pressed forward to manifest their

feelings to^wmrd the illustiious dead. Delega
tions from cities, towns and villages have
waited on us. The pure and the lovely, the
mothers and daughters of the land, as we
passed, covered the coffin with garlands of
flowers and bedewed it with tears. It has
been no triumhpal procession in honor of a
living man, stimulated by hopes of reward.
It has been the voluntary tribute of a free
and grateful people to the illustrious dead.
We have brought with us, to witness the
last sad ceremony, a delegation from th*
Clay Association of the city of New York,
and delegations from the cities of Cin
cinnati and Dayton, in Ohio. Much as we
have seen on our way, it is small compared
with the great movement of popular sympathy
and admiration which everywhere bursts forth
in honor ofthe departed Statesman. The riv
ulets we have witnessed are concentrating, aud
iu their union will form the ocean tide that
shall lave the base of the pyramid of Mr.
Clay's fame forever.
Mr. Chairman, and gentlemen of theLei-
ington Committee, I have but one remaining
duty to perform, and that is — to deliver to
you, the neighbors and friends of Mr. Clay,
when living, his dead body for interment.
From my acquaintance with your" characters,
and especially with your Chairman, who was
my schoolmate in boyhood, my associate in
the Legislature in early manhood, and after
wards a co-laborer for many years on the
bench of the Appellate Court, I know that you
will do all that duty and propriety require, in
¦burying him whose last great services to his
country were performed from Christian mo
tives, without hopes of office or earthly re
ward. JUDGE ROBERTSON'S REPLY.

Senator Underwood, Chaiiman, and Associate
Senators of the Committee of Conveyance:
Here, your long and mournful cortege at
last ends — your melancholy mission is now
fulfilled— and, this solemn, moment, yoii dis
solve your connexion with your late distin
guished colleague of Kentucky.
With mingled emotions of sorrow and of
gratitude, we receive from your hands, into
the arms of his devoted State and the bo
som of his beloved city, all that now remains
on earth of HENRY CLAY. Having at
tained, with signal honor, the patriarchal age
of '76, and hsdloweji his setting sun by the
crowning act of his eventful drama, a wise
and benevolent Peovidekce has seen fit to close
his pUgrimage, and to allow him to act — as
we trust he was prepared to acf>— a still nobler
and better part, m a purer world, where hfe is
deathless. This was, doubtiess, best for him,
and, in the inscrutable dispensations of a
benignant Almighty, best for his country.—
StiU it is but natural that his countrymen,
and his neighbors especially, should feel and
exhibit sorrow at the loss of a citizen so use
ful, so eminent, and so loved.
And not as his associates only, but_ as
Kentuckians and Americans, we, of Lexing-

158

BURIAL OP HESEY CLAY.

*on and Payette, feel grateful for the unexam
pled manifestations of respect for his memory
to which you have so eloquently alluded as
having^ evei^ywhere, graced the more than tri
umphal procession of his dead body homeward
from the National Capitol, where, in the pub
lic service, he fell with his armar on and un
tarnished. We feel, Mr. Chairman, especially
grateful to yourself and your colleagues here
present for the honor of your kind accompa-
nyment of your precious deposite to its last
home. Equally di'vided in your party names,
equally the personal friends of the deceased,
equally sympathising with a whole nation in
the Providential bereavement, and all distin
guished for your public services and the con
fidence of constituents, — you were peculiarly
suited to the sacred trust of escorting his re
mains to the spot chosen by himself for their
repose. Having performed that solemn ser-
service in a manner creditable to yourselves
and honorable to his memory, Kentucky thanks
you for your patriotic magnanimity. And al
low me, as her organ, on this valedictory occa
sion, to express forher,as well as formyself and
committee, the hope that your last days may
be far distant, and that, come when they may,
as they certainly must come, sooner or later,
to all of you, the death of each of you may de
serve to be honored by the grateful outpourings
of national respect which signalise the death
of our universally lamented Clat.
Unlike Burke, he "never gave up to party
what was meant for mankind." His intrepid
nationality, his lofty pati^iotism, and his com
prehensive philanthropy, illustrated by his
country's annals for half a century, magnified
him among Statesmen, and endeared him to
all classes, and ages, and sexes of his country
men. And, therefore, his name, like Wash
ington's, will belong to no party, or section, or
time. Your kind allusion, Mr. Chairman, to rem-
niscences of our personal association, is cordi
ally reciprocated — the longer we have known,
the more we have respected each other. Be
assured thatthe duty you have devolved on
our Committee shall be faithfully performed.
The body you commit to us shall be properly
interred in a spot of its mother earth, which,
as "(Ac yrace 0/ Clat," will be more and more
consecrated by time to the affections of man
kind. How different, however, would have been
the feelings of us all, if, instead of the pulse
less, speechless, breathless Clay, now in cold
and'solemn silence before us, you had brought
¦with you to his family and neighbors the liv
ing man, in all the majesty of his transcendant
moral power, as we once knew and often saw
and heard him? But, with becoming resigna
tion, we bow to a dispensation which was
doubtless as wise and benificeut as it was mel
ancholy and inevitable.
To the accompanying committees from New
York, Dayton and Cincinnati, we tender our
profound acknowledgments for their voluntary
sacrifice of time and comfort to honor the ob
sequies of our illustrious countiyman. I

In this sacred and august presence of the
illustrious dead, were an eulogistic speech be
fitting the occasion, it could not be made by
me. I could not thus speak over the dead
body of HEWRY CLAY. Kentucky expects
not me nor any other of her sons to speak his
eulogy now, if ever. She would leave that
grateful task to other States and to other
times. His name needs not ourpanegyric. The
oarver of his own fortune — the founder of his
own name — with his own hands he has built
his own monument, and with his own tongue
and his own pen he has stereotyped his auto
biography. With hopeful trust his maternal
Commonwealth consigns his fame to the jus
tice of history and to the judgment of ages to
come. His ashes he bequeathed Jto her, and
they will rest in her bosom until the judgment
day; his fame will descend — as the common
heritage of his country — to every citizen of
that Union of which he was thrice the trium
phant champion, and whose genius and value
are so beautifully iUustrated by his model life.
But, though we feel assured that his renown
will survive the ruins of the Capitol he sclong
and so admirably graced, yet Kentucky will
rear to his memory a magnificent mausoleum —
a votive monument — ^to mark the spot where
his relics shall sleep, and to testify to succeed
ing generations that our Republic, however
unjust it may too often be to Scirt^ merit, will
ever cherish a grateful remembrance of the
dead Patriot, who dedicated his life to his
country and with rare ability, heroic firmness,
and self-sacrificing constancy, devoted his
talents and his time to the cause of Patriotism,
of Liberty, and of Truth.
The remains were then placed in a hearse,
and followed by the various committees, and
a large concourse of citizens, were taken to
Ashland — the home of the deceased patiiot for
fifty years, and now the spot whither many a
pilgrimage will be made by the admirers of
true genius, public virtue and unselfish pa
triotism. The body wastheieplaced in state,
and a vigil kept over it during the night by a
committee of young gentlemen selected for the
purpose. The morning of Saturday rose clear and
brilliant as the fame of him upon whose eye
its light fell all unheeded; and the stately
pines, planted by his own great hand, looked
less like mourners, than green remembrancers
of his immortal gloiy.
At an early hour the city was astir. Before
sun-rise thousands of vehicles had arrived,
and continuous and unbroken streams of car
nages, equestrians aud pedestrians, poured
through every avenue to the city up to the
hour fixed for the funeral. The streets— the
windows — the house-tops — every place where
the human foot could stand and the human
eye could see, seemed to be taken hold of.
And yet, it was all gloom and sadness. The
mournful music-the muffled drum— the veiled
colors of the soldiery— all conspired to render
more ^olemn the imposing rites.
At 9 o'clock, the Committee of the Senate;

BURIAL OP HENRY CLAY.

159

the various Committees from other States; the
Committee of Aruangements; the Committee of
Escort sent to receive the body; a Committee
fiom the Masonic Fraternity and the 1^ all-
Bearers, repaired to Ashland to receive the
body. On a platform covered with black, in
front of the main entrance to the mansion at
Ashland, the body was placed. Over it were
stiewn flowers of the choicest description.
Upon the centre of the burial case was placed
the wreath, fashioned by the hand of one of
the most gifted and distinguished of our
countrywomen — Mrs. Ann S. Stephens — from
a rare flower — the "Immortelle." The wreath
presented by the Clay Festival Association of
New York ornamented the top of the case; and
in rich profusion around it were placed bou
quets from Washington and Baltimore, and a
laurel ¦wreath from Philadelphia.

The funeral services were then performed
by the Rev. Kdw F. Berkley, Rector of Christ
(Episcopal) Church in this city, of which Mr.
Clay was a member. The solemnity of this
ceremony, so imposing on even the most or
dinary occasions, was infinitely heightened
by the occasion of its present solemnization.
The funeral discourse of Mr. Berkley was el-
oque;itand feeling iu the highest degree. He
spoke of the character of the great deceased —
his talents — his public virtue — his justice —
and his matchless career. That portion of his
address in which he alluded to the sacrifice of
life by Mr. Clat, in his efforts to procure the
passage of the measures of Adjustment,
thrilled every heart; and the effect of the en
tire discourse upon his audience fully attested
the powers of the speaker.

PRELECTION.

Address on behalf of the Deinologian Society, of Centre College, delivered at
Danville on the Ath of July, 1834.
Centre College, July 4, 1854,
Dear Sir: —
Permit us, in our own name, and that of the Society which we re
present, to expresss the high satisfaction that we have enjoyed this day,
in listening to your excellent address, and earnestly to request that you
will comply with the solicitation of the Society, contained in the follow
ing resolution, viz:
Resolved, That the thanks of this Society be presented to the Hon.
George Robertson for his able and interesting address, delivered this day,
and that he be solicited to grant us a copy for publication.
Very respectfully, your friends,
ROBERT M'KEOWN,) Committee of the
WM. M. RIDDLE, } Deinologian So-
WILLIAM W. HILL, ) ciety of C. C.

Danville, July 4, 1834.
Gentlemen: —
Although, as you must know, the address, a copy of which you
have requested for publication, was prepared in very great haste, and,
as I assure you, without any expectation that it would ever have any
other publicity than its delivery this day gave it; yet I cannot refuse a
cheerful compliance with your request. With all its imperfections it is
now yours — do as you please with it.
Respectfully, your friend,
GEORGE ROBERTSON.

ADDRESS.

Another year is gone— and with it have
gone forever many of our countrymen, neigh
bors and friends. A memorable and eventful
year has it beeu — a portentous era in the affairs
of men, and a season of peculiar trial to us
and to our civil institutions. But in the allot
ments of an all-wise Providence, our beloved
country is yet permitted to stand forth united
and free, and we too have been preserved to
hail the light of this hallowed day, and in
health and in peace, once more upon earth, to
make the accustomed offering of our thanks
giving. This is no common day; it brings with it
remembrances, and obligations, and prospects
peculiarly interesting and impressive. The
4th of July, 1776, opened abright and glorious
scene in the great drama of human affairs.
The declaration of North American Independ
ence was the offspring of the purest patriotism
and of the most enlightened reason; and al
ready it has been the parent of events which
must, in all time to come, have a great in
fluence on the destiny of man. The time will
never come when the balmy noon, whose 58th
anniversary we now commemorate, will not be
remembered as one of the purest and brighte.9t
that ever beamed upon the moral world. Then
it was that Franklin and Adams and Jefferson
and their compatriot representatives of the
will and intelligence of the people of these
states, then colonies, proclaimed to the world
these fundamental truths — that all men are by
nature entitled tobe free, and to enjoy equal
rights to life and liberty, to the acquisition
and security of property, and to the pursuit af
ter happiness, now and forever; that the free
and deliberate will of the people is the only
legitimate source of all human'authority; that
all just government is administered for the
greatest good of the whole body politic; that
man is not accountable to man for his con
science or his opinions, and should not be dis
turbed by any human means, in the free exer
cise of either the one or the other, and of course
that no freeman should forfeit any civil'right
or privilege in consequence of his actual enjoy
ment of perfect freedom of judgment, or of
conscience. This was the first formal and
authoritative announcement ever made by any
people of the true elementary principles of
free government or of social organization. It
was the united voice of sound philosophy and
pure religion, assenting, for the first time, the
natural rights of an intelligent, moral and
christian people. But the simple creed thus
announced, God-like and ennobling, as all must
feel it to be when considered as a speculation
21

of philanthropy, would nevertheless be deem
ed but the illusion of a golden age unless its
principles, so just and so beautiful in the ab
stract, can be satisfactorily exemplified in tha
actual condition of society and the practical
operations of government. The value and ap
plication of those principles to any people
must depend altogether on the moral character
and conduct of the majority. Theirtruth and
value have been, so far, happily illustrated in
this land of promise; and the successful pro
gress of the great American experiment is
ascribable to the pervading intelligence and
the predominant habits and virtues which have
hitherto signalised the great body of the peo
ple of these states. Our Declaration of In
dependence was but the reflected image of the
principles and sentiments of those by whom it
was proclaimed, and by whom it was triumph
antly maintained. The moral light, which then
dawned in the hearts of our countrymen, guid
ed them successfully through the perils and
sacrifices of a protracted and bloody struggle
for independence, and having led them to a
still nobler achievement — the establishment of
wisely constructed institutions for preserving
liberty and equality — has already cast its
cheering rays over distant lands, and unless
exting,uished or eclipsed in this new world,
will shine brighter and brighter, until, with
the effulgence of perfect and universal day, it
will enlighten and bless all mankind, of every
color and every clime.
Let us then rejoice that our lots have been
cast in this land of liberty, and this age of
light. And let us all endeavor to feel and to
act as a moral people should feel and act on thi s
our great day of national jubilee — a day ever
to be remembered with piouS' gratitude, and
worthy to be consecrated, through all time, to
the enjoyments and the duties of a reflecting
patriotism and a comprehensive benevolence.
Generation after generation will pass away
and be forgotten, but when, in the lapse of
ages yet to come, the monumental columns and
Pyramids of nations shall have mouldered lo
dust, and the names of tyrants and of dema
gogues shall have sunk into oblivion or con
tempt, the immortal principles of our Decla
ration of Independence and the virtues of the
patriots who, to maintain them, pledged their
lives, their fortunes and their sacred honor, will
still shed a mUd and melow light which wiU
never fade away as long aa liberty has an altar,
or God has a temple upon earth. But whether
in after times, here or elsewhere, those princi
ples and those virtues shall prevail among
men, or shallbe remembered only as the historic

1S3

ADDRESS 0» BEHALF OP TEE

glories of a meteor age, may depend much, very
much, on the conduct of those of this gener
ation, who, under Providence, havebeen made
the recipients for themselves and the depositors
for all mankind of one of the best boons ever
vouchsafed by God to man.
This then is an occasion peculiarly proper
for a dedication of our hearts to our country,
and of our minds to sober contemplations on
our duties to ourselves, to those who have gone
before, and those who shall come after us, and
to that Being who stood by our fathers in the
great day of their fierytrial, and by whom we
wiU be held accountable for the manner in
which we shall discharge the sacred trust
committed to our keeping.
Standing as we do, on an isthmus connecting
the dead and the unborn — the fathers of our
liberty who have gone before us, and the sons
who are to come after us in joy or in sorrow —
it is our duty this day, like the ancient Greeks
during their Isthmian and other national com
memorations — to observe an universal amnesty
and, glancing at the past, the present and the
future, to banish all passion and prejudice,
personal, partizan or national, and, as one
family, unite in the noble resolution, that we
will henceforth, as long as we live, do aU that
we can to cherish the virtues, and to preserve,
improve and hand down the moral and civU
institutions, without which liberty is but licen
tiousness, aud free government but an empty
and delusive name.
In the history of the old world the philo
sophic observer can find but few incidents grat
ifying to the philanthrophic mind, and no
satisfactory evidence of the capacity of the
mass of mankind for the maintainance of a
just and stable democracy. Greece, the cradle
of letters, and the nursery of the arts — the land
of Homer, of Solon, of Herodotus — the theatre
of Thermopylae, of Leuctra, and of Mai-athon
— classic Greece, in the heyday of her glory,
beguiles the scholar with ner minstrelsy, her
eloquence and her arms, and fires his genius
with illustrious examples of devotedpatriotism;
but a calm survey of her history exposes la
mentable scenes of disorder and injustice, the
natural effect of the ignorance of the multitude.
Under the spell of a momentary inspiration,
the superficial inquirer may be deceived with
the semblance of popular freedom, but the il
lusion will vanish when he beholds the army
of demagogues and their triumphs: when he
sees Pisistiates putting down Solon — a deluded
mob subjecting Aristides to ostracism because
he was called " the just " — and the same po
tent, but inconstant engine, taking the life of
Socrates because he ventured to intimate the
immortality ofthe soul, and theexistence of one,
and only one God — when he beholds the inse
curity of virtue, and the instability of justice,
and the final degeneracy and desolation of the
once far famed Greece, he will feel that the
p opulace, like its own fabled Pol'yphemus, was
a blind giant, incapable of self-direction, and
as apt to destroy as to preserve.
Rom^ once mistress of the world, was, in
her best days, ths great arena of oontending

factions. She too had her demagoguea, and
the " Majesty of the Roman People," was their
watchword. And though she had her Pabri-
cius, herRegulus,her Cato, her Cicero— she
had also her Clodius, and her SyUa, and her
C^sars, honored in their day as the friends of
the people; and whether Marius or Sylla,
Caesar or Pompey prevailed, the victory was in
the name of liberty, the Republic; was honored
with a triumph, and a clamor of approbation
echoed from the Forum to the Capitol. Even
Augustus Cajsar, absolute as he was, preserved
the forms of a Republic, whUst, by the per
version of his vast patronage to his own ag
grandisement, he made an obsequious and
prostituted Senate the Registers of his 'will,
and, in the name of liberty, fastened a heavy
yoke forever on an applauding populace.
The fast anchored Isle — ^the natal land of
our fathers and the mother of our common lav
— has done much for mankind. But she too hai
had her scenes of civil strife and of blood —
her Wakefield, her Smithfield and her Boi-
worthfield; she has had her Tudors, and her
Stuarts, her Jeffreys, her Bonner and her
Cromwell, as well as her Sidney, her Cran-
mer, and her Hampden; and, after ages of
reformation in Church and State, her aristoc
racy atUl governs, her Hierarchy stiU prevaUs,
and. the harp of Erin hancfs tuneless and sad
on the leafless bow of her Blasted oak.
The French Revolution had its Dantoms and
ts Robespierres — and after the ibloody idol of
licentious liberty had, like the car of Juger-
naut, crushed its thousands and overturned
the 'Temples of the true God, aPretorianband
of Grenadiers delivered over the ''R^ublie" to
the safekeeping of a Bonaparte.
After contemplating such scenes, well might
the philanthropist doubt the capacity of man
for self-government, and exclaim in the lan
guage of Madam Roland under the guiUotint
— "Oh liberty! what! crimes have notbeen per
petrated in thy abused name!" But when,
from the waste around him, he easts his eye on
this green spot, he feels that there is yet hope
for man upon earth
The discouraging failure of the experiments
which had been made of popular government
among the most enlightened nations of ancient
aud modem Europe must be attributed, not to
any invincable incapacity for such a govern
ment, but to the predominance of ignorance and
its consequential vices. Universal liberty and
universal light are inseperable. AU mankind
have capacities for the one as well as for the
other, and were created for the enjoyment of
both; and as sure as there is a wise and immu
table Providence, man will ultimately be ele
vated to the full and undisturbed fruition on
earth of those great ends of his moral being.
Will that God, who preserved OhristianiW
through the gloom and desolation of the mid
dle ages, suffer liberty, its offspring, to per
ish? Both, we trust, have taken deep root in
American soil. They were planted by our
forefathers, under circumstances peculiarly
propitious. The mariner's eompaw, the printing prau,

DEINOLOGIAN SOCIETY.

16S

th% discovery of America, " the Reformatisn,"
and other subsidiary agencies having opened
light on the black cloud of ignorance and su
perstition which hun{ overEurope for ages
iucceeding tha overthrow of civilization by
the barbarians of the north, man, long sub
jugated and degraded, began to understand
and te assert his imprescriptable rights. But
still borne down and oppressed, many of the
most inteUigent and resolute sought an asylum
in the solitude of this virgin land, and brought
with them all that was most excellent of the
improved habits and institutions — moral, so
cial and civil— of the Transatlantic world
which, with aU its charities of home and of
country, they exchanged forever for the hope
of happiness in the new world. Here was
then, for the first time, exhibited an infant com-
munitr in the maturity of social organization —
a people at once intelligent and virtuous — na-
acent colonies of equals who, though still
dependent on the King, Lords, and Commons
of England, enjoyed the protection of the com
mon law, worshipped their own God in their
own way, and far surpassed the mother coun
try in the actual enjoyment and prevalence of
civil and reUgioua liberty.
When, after the lapse of nearly two centuries,
such a people, wonderfully improved by their
intermediate trial and experience, determined
to setup for themselves, they were able, in full
manhood, to stand alone, and did stand up as
one man, in the dignity and strength of their
united moral energies; and they were not
alone — God stood by them; because, as they
were qualified for freedom, mek cause was His.
Thus panoplied, success was sure; and a
common stiuggle ended in a common blessing.
The American Revolution, unlike any that
preceded it, was altogether a work of intelli
gence and virtue. It was a sober and solemn
appeal by a moral and christian people in be
half of the rights of all. The people began it
— the people carried it on — and the people ended
it, for</iem«J»«» and posterity; and it was be
gun and carried on, and ended as became
rational and just men, struggling, as equals,
for all that was most dear to each.
National independence was not the only ob
ject, and was far from being the only effect of
that great appeal; and, had nothing else or
better been achieved, the revolution would have
been unprofitable — ^perhaps pernicious. But
the ends of the momentous contest were an
nounced in the Declaration of Independence;
and those ends were accomplished. Equal
rights, security — justice — crowned the final
triumph; and for these we are indebted less
to the valor than to the virtue of our an
cestors. The close of the war of independence open
ed new dangers. A government was to be
established, and history, with all its lights, did
not furnish a safe model. Thirteen independ
ent states were either to be confederated or
consolidated; and inthe one form orthe other,
it was yet to be tried whether the many or few
—one man or aU, should rule. But the same
' moral power which presided over the Revolu

tion, still presided, and out of the chaos which
enstied, brought forth anew creation, orderly,
beautiful and harmonious. All desired the
greatest good of all. There was no Cteesar to
seek a crown — no Cromwell to claim a protec
torate. No Plebian envy — no Agrarian pas
sion — no religious fanaticism produced the
Revolution, or armed with power an ambitious
leader— WASHINGTON had led our armies
to victory, and his highest ambition was to be
a free and useful American citizen. The
American people, now liberated from foreign
dominion, were prepared for freedom. Feel
ing this, they were determined to enjoy the
great boon tnemselves, and to establish it for ¦
us on a new and broad foundation of equal
rights, popular intelligence and public virtue.
And have they not done so? The work of
their hands, is it not good? It is as perfect as
the capacities of the age could make it. It
was the fruit of compromise; a compromise of
diversified interests and opinions; and pre
sents an illustrious example of that liberal
enlightened spirit of moderation and conces
sion, without which the Federal Constitution
could never have been established, and can
not be preserved. That constitution was the
first organization of government (excepting
some of our State Constitutions, and the arti
cles of confederation) which any people in
their primary assemblies ever originated and
established. Doubtless it has defects; being
the workmanship of man's hands, it could not
be faultless. But, with such occasional alter
ations and repairs as experience -shall recom
mend, andf patriotism may adopt, it may do
all that a form of government can do, and will
last as long as public virtue shaU prevail. It
establishes the union, of the States as the an
chor of safety — it defines aud distributes po
litical power in such a manner, as to give to
deliberate public opinion its just operation,
and to secure justice against the passions of
functionaries or factions; and it guarantees to
every citizen the liberty of conscience, of opin
ion, and of speech. For nearly half a century
it has been tried, and, so far, has been equal
to the purposes for which it was framed, and
to the expectations of those by whom it was
adopted. Under its benign protection, not a
drop of blood has been shed in civil war. Jus
tice has been administered "witlu>ut tale, de
nial or delay," our population has increased
from four to thirteen millions, and our country
has not only acquired great wealth and
strength, but has established for'itself, among
the nations of the earth, a bright and distin
guished name. No title is more honorable, or,
among sensible men, more honored, than that
of "Citizen of the United States."
And the valley of the Mississippi— this
Hesperian land of ours — is it not, ¦with all its
enchanting wonders, one of the fruits of that
liberty and security which have been_ assured
tons by our institutions? A wild ¦wilderness
when Independence was declared — it already
blooms in aU the beauty and maturity of the
most civilized nation. Its population exceed
ing three millions, and increasing beyond

164

ADDRESS ON BEHALF OF THE

example, m numbers, in wealth, and in moral
power-rits dwellin gs, its farm s and its churches
— its cities, its colleges, its Steam Boats and
its Rail Roads — altogether exhibiting a land
scape, now and in perspective, never surpas
sed, if ever equaled in physical beauty and
moral grandeur.
But this should be a day of candor and of
truth. Our country's, escutcheon surpassing
though it is, cannot appear altogether spotless.
We have owed, and yet owe, with augment
ed and continually increasing obligations, a
sacred debtof justice and magnanimity tothe
aboriginal Red Men, whose homes we occupy,
and whose council fires we have extinguished.
Helpless, hopeless, and forlorn, a miserable
remnant only remains of the once powerful
lords of this continent. And shall the last
melancholy relics of those vast tribes also per
ish? The honor of our counti-y forbids it.
The efforts hitherto, to meliorate their condi
tion, though w'ell intended, have not been al
ways the most congenial, or appropriate, nor
sufficiently earnest and persevering. They
ean be yeJ civilized — ^they can yet be reclaimed',
and made useful and happy. Let it be done.
America should do it — America can do it —
and America, we trust and believe, will do it;
and, if she shall accomplish it, though too
long deferred, the tablet, on which the achieve
ment shall be recorded, will be one of the fair
est in all her bright annals.
The philanthropist has still also to lament,
that a curse imposed on our ancestors when in
colonial subjection, still lingers among us.
Domestic slavery cannot be suddenly abolished
in all the States, consistently with the welfare
of either the black man or the white. A pre
mature effort of inconsiderate humanity, might
be disastrous, and would certainly tend to de
feat or retard the ultimate object of every good
and wise man — universal emancipation. But
we feel that public sentiment, public policy,
and individual interest, are all conspiring to
extirpate the great household evil, and will,
in convenienttime, and in some just and eligi
ble mode, satisfactory to all, banish it forever
from our land.
It must be admitted too, that, in the progress
of our affairs, the effervescence of party has
sometimes disturbed our tranquility, and that
faction has, more than once, dared to raise its
Oerberean head. But these evils will accompa
ny libiarty in its best estate. No unmixed good
belongs to earth. Popular freedom cannot ex
ist without the occasional agitations incident
to the collision of different interests and
opinions. "Faction will freedom, like its shade, pursue,
"Yet, like the shadow, proves the substance
true."
In every free State, there must be conflicting
opinions, and rival interests, which will pro
duce parties facd with emulation, and, not
unfrequently, armed with passion and preju
dice. And whe'^e there are such parties, there
will be demagogues — light and protean news
paper politicians, hollow-hearted and deceitful
—who, floating on the bubbling tide themselves

have raised, excite every prejudice, pursuade
every suspicion, and address every, passion of
the credulous, the ignorant, and the unprinci
pled. These eruptive disorders cannot be
prevented without destroying the vitality
which produces them. But as long as the
heart of the body politic is sound, they will be
but as pimples ontlie skin, and with the ani-
malculoe which live in them and feed on them ,
will be carried off by the healthy circulation
of the pure blood of life. Hitherto we have
been saved by the ultimate rectitude and en
ergy of public opinion — a resource that wUl
never fail whilst soundness abides with the
body of our people. Popular virtue and in
telligence are the only firm foundations of
popular libei-ty; and until these foundations
have been sapped, the superstructure will nev
er fail. Perhaps the most radical defect in
our political organization, is the disproportion
ate power and patronage with which the na
tional Executive is armed. And whenever our
liberties shall fall, they will sink under the
combined action of a perverted Executive aud
a licentious press. But should it ever be our
lot to behold one of the most alarming trials to
which our rights can be doomed — an unworthy
Cliief Magistrate, elevated and sustained by a
selfish and ambitious party, perverting his
great patronage, and abusing his power by re
warding his sycophants, proscribing aU who
dare to think honestly for themselves, and pros
tituting the public press — and a mercenary
band of placemen and expectants, like the de
generate Romans in the days of the Csesars,
only because the supremacy of their master's
will is indispensable tothe attainment of their
personal ends, vindicating those abuses and
acting out the detestable doctrine of Hobbes,
that the king cannot be guilty of perjuiy as
long ns the people can be prevailed on to sanc
tion or can be compelled to endure his usurpa
tions; then, even then, if virtue and intelligence
still abide with the great mass, though we
shall lament the loathsome scenes, we need
not b'emble or dispair; the rightful sovereigns
will, at last, assert their supremacy, and "come
to the rescue" of their violated institutions; —
they may come slowly — but come they will,
and with power.
But these slight blemishes at which we have
just glanced — what are they in the sublime
prospect which this day opens to our view?
They are but the spots on the sun; and
though the microscopic vision of misanthropy
may magnify them, they ai^e lost in the great
panorama which our country presents to the
eye of an instructed and comprehensive pa
triotism. Could Boone and Harrod and Logan
— when, in this once ¦' land of blood, " they
first trod in the tracks of the Indian and the
Buffaloe — have dreamed that what we now
behold in this smiling West, would so soon
have succeeded their adventurous footsteps,
ho^w would such a vision have cheered them
amidst the solitude and perils which they en
countered in aiding to plant civilization in the
wilderness! But oh! the pilgrim band of Ply
mouth Rock ; the offcast germ of the once leafless,

DEINOLOGIAjr SOCIETY.

165

sapless, tiee of light — what holy joy would
theirs have been, had their last lingering
glimpse of the green fields of their childhood
been gilded with a hope, that the then house
less solitude of their refuge would, so soon, or
ever be transformed into a vast cultivated
garden, the abode of that liberty, religion and
law, for which they had abandoned forever the
comforte and endearments of the homes of
their birth?
Here let us pause, and contemplate our ac
tual condition — its peculiar and pre-eminent
blessedness, its h opes, its fears, its dutiei, and
its responsibilities. All that our noble sires
hoped for, aud all that rational man could ex
pect, is now ours. This fair country is ours;
aud that liberty, that religion, and that just
and equal law, for which the hai^dy hunter and
the pious pilgrim longed and suffered, are all
ours — ours to enjoy — ours to uphold — ours to
improve, and exalt and transmit. We are in
deed the heirs to rich blessings — the price too
of virtue, of blood, aud of tears that greatly
enhance their sacredness and their value. To
prove ourselves worthy of these blessings is
a sacred duty we owe to those who secured
them for us — to ourselves who hope to enjoy
them and to our children, who wUl have a
right to claim them, unimpaired, unjeoparded
and improved. Shall this threefold obligation
be fulfilled? Let this solemn question never
be forgotten; and may each of us be faithfully
answering it by our conduct, as we should, as
long as we live.
To enjoy and preserve we must maintain, by
just and proper means, the union and the har
mony of the States; we must guard with all
our vigilance, and defend with all our ener
gies the Federal Constitution, and should nev
er permit, or connive at any infraction of its
provisions or evasion of its principles under
any pretence, or for any purpose whatsoever;
we must never permit a Manlius to escape the
sentence of public justice by pointing to the
Capitol which he onoe saved — nor even a
Scipio Africauus, when properly arraigned,
whether guilty or innocent, to elude a fair
and full trial by appealing to the batties he
had won for his country; the public law must
be inflexibly supported by all, because it isthe
only support or security of all; we should al
ways give our suffrages to those who are most
worthy and capable; we should never trustor
sustain any functionary, high or low, who
adopts any other rule of official conduct than
the public good; we should approve and en
courage aU efforts and institutians which tend
to moral improvement, or to the establishment
of useful principles, or habits; we should ever
remember, and strive to' imitate the virtues of
our Revolutionary worthies — and whenever we
feel doubt respecting 'our civil duty, it would
be well for us to consider what, under the same
circumstances, Washington or Franklin would
have done; and it should ever be a leading
maxim of our lives, that, "aboiie ourselves our
country sliould be dear."
The proposition that man is capable of self-
government presupposes, necessarily, that he

is virtuous and intelUgent. This truth, so
self-evident, is exemplified by the history of
every age.
Much has been written about the most ef
fective social organization, and the best con
servative principle of States. But all the
wisdom of the most learned Philosophers, and
all the ai'tifices of the most experienced pol
iticians, never did nor ever can project any
expedient which can supply the want of a
general diffusion of moral light. As a free
moral agent, man in the social and civil state,
must be regulated by moral principles. It is
the dictate of reason as well as a law of nature
that, among equals, the majority should gov
ern; and, among equals, the majority will
govern. But, unless the majority understand
their rights, and their duties too, and possess
the virtues' essential to the maintenance of
those rights and the proper discharge of those
duties, they will not long govern, and, what-
every may be the form of government, they
will, in fact, be governed, "rhis is equally the
dictate of reasonandthelawofnature. When
the numerical plurality are incapable of just
self-control, those who are virtute mojoris, and
not those who are numero pluris, constitute the
actual and efficient majority, and the only one
that can govern wisely or safely. As "Knowl
edge is power," thosewho do not possess an
equal degree of intelligence and virtue, should
not, and cannot exercise an equal degree of
moral influence. , It is worse than mockery to
declaim about" liberty and equality," when the
great lever of moral power is held by a com
paratively few members of society, who must
govern as long as reason predominates; and
when that does not prevail, passion, like a
volcanic eruption., overruns every opposing
barrier. And either dilemma — the one being
oligarchy, and the other anarchy or moboera-
cy — is inconsistent with liberty and safety.
I'he best organized government nmst he prac
tically the one or the other, unless the great
body of the people possess a pervading and
preponderating moral power. I'he genius of
the government should be adapted to that of
the people; and the practical government will
be the image of those by whom it is adminis
tered and. controled. It is political quackery
to attempt to preserve republican institutions
among a corrupt or ignorant people.
"'What is a free State?
"Men, high minded men.
"Men who their duty know,
"But (also) know their rights.
"And, knowing, dare maintain —
"THESE constitute a State."
The stability of a constitution depends not
so much on its structure, as on public opinion.
The principles of the people, however bad,
will prevail over those of their constitution,
however good. The constitution can afford no
security, unless it be revered as inviolable by
^hose whose will must govern. . Unless the
mass of the people be enlightened, vigilant,
and true, those who may be intrusted with
power, may not be such as are worthy of the
.trust, and may do as they please and still be

lee

ADDRESS 0» BESAI* Of THE

sustained by a misled majority, even in tramp
ling down their constitutional bulwarks, and
forging their own chains. No vasaalage is so
complete as that of the will — ^no servitude so
hopeless, or degrading, as that ofthe mind.
That mind which is under the dominion of any
other mind, is not free; it is a slave, though it
may wear gilded chains. And a mind under
the dominion of passion, ignorance, or vice, is
not, whilst thus enslaved, a free agent, or fit
to be free. A community of such minds can
not enjoy civil liberty.
When the people are truly enlightened, tu
mults and encroachments can do no permanent
mischief — and, without such guardian intelli
gence, the best constitution, and the wisest
laws cannot, in a popular governmeat, secure
either tranquility or justice.
A stable democracy is the natural offspring
of the maturity of society, when the people
are good and wise. In such a community,
neither aristocracy nor monarchy — the neces
sary fruits of the immaturity of society — can
be maintained. A striking illustration of this
self-evident truth, may be seen inthe Lillipu
tian Republic of San Marino; where all the
citizens, being, by a common discipline, as
nearly equal as possible in moral power, main
tain, in practice, as well as in speculation,
equal and ju.st institutions, and laws which
have a moral force far more efficacious than
physical and merely political power combin
ed. There thc law supports all, because it is
supported by all; every infraction of any law
is deemed au attack on the security of every
citizen, because it is, by the integrity and in
violability of their laws, that their rights are
secured, or felt tobe secure. And thus they
happily exemplify the maxim of Solon —
"Force is the lot of some, LAW is the support
of all."
Though the perfectability of man in his pro
bationary state is but the vision of a vain and
benevolent fancy, yet the infinite inprovability
of the human mind, and of the moral charac
ter, is as certain as it is ennobling. Dominion
over the earth was granted to man in the
great charter of his being, which endowed him
with a rational and immortal mind. This ele
mental spark is the puncum saliens of human
power; nourished aad expanded by proper
culture, it can be made as resistless in ite in
fluence as it ¦will be wonderful in its develop
ments. Behold the disparity between the civ
ilized and the savage man — between the Chris
tian and the Pagan world. Remember Athens in
the days of her glory — the conquest of Mexico
by Cortes, and of the kingdom of the Sun by
Pizarro. Look at the mariner's Compass, the
Telescope, the Printing Press, the Cotton
Loom, the Steam Boat — observe the magic
march of improvement in this wonderful age
— the arts, the institutions, the laws of these
our days; and behold a Newton measuring the
sun — a Herschel scanning the star.s, and view
ing the mountains of the Moon— a Franklin
drawing Lightening from Heaven— and then,
even then, we have but a glimpse ef the ca
pacities of the human mind, or of the power

of human knowledge. The power of knowl
edge is not only sure and compreheifsiTs, but
attractive and happifying. It is the power
of being good, and of doing good-— it is the
power of being happy, and of making happy
— it is the power of being all that man should
be, and of doing all that man should do for
his own happiness and the welfare of hit
country. It is the chief source of true hap
piness. It purifies the heart, whilst it ezaUi
the mind. It is incompatible with dissolute
habits, sordid appetites, and vulgar ambition.
As it elevates and expands the intellectud
and moral faculties, it affords resources for en
joyments, both rational and useful, and aids
in preventing licentious habits, and in des
troying the contagion of idleness and vice. An
enlightened mind alone can enjoy "the feast af
reason and the flow of loul;" — it commune*
with itself, and draws aliment from every
thing it sees or hears — it finds
"Tongues in trees, and books in flowing
brooks,
"Sermons in stones, and God in eveiy
thing."
Tho true patnot will strive to enlighten the
popular mind, and will endeavor, by proper
means, to propagate truth, dispel error, and
eradicate vice. By such efforts he wiU help
to meliorate the condition, exalt the character,
and secure the rights of his feUow men. The
citizen who will not thus act, is not the peo
ple's friend, or his country's friend; nor, what
ever he may say or think, can he be, at heart,
in favor of universal liberty and equality.
Does the philanthropist wish to promote the
welfare of his race? Let him aid in the diffu
sion of knowledge. Does the American pa
triot hope that the liberty which he enjoys
may become universal and indistructible? or
do we, who aie fathers, hop* that our children
maybe free and happy, and be able to trans
mit those blessings, unmarred, to their chil
dren? Those hopes are vain and delusive,
unless the light of true knowledge be properly
and effectually diffused. We must initruct
one another — we must educate our children —
educate them in the habits and principlei in
which, as freemen, they should live, and in
which; to bi freemen, they mutt live.
One of the most comprehensive definitions
of education, is that given by Agesilaui —
"Children should be taught that which it will
be proper for them to practice when they reach
mature age." He, whose habits, principles,
and taste are not established when he reaches
manhood, is in great danger of never having
food or fixed habits, or principles, or taste.
'he stamina of intellectual and moral charac
ter are formed in the plastic season of youth.
Nothing is more ductile than the infant mind;
it may be moulded into almost any shape.
The lives of Herodotus, of Demosthenes, of
Alexander, of Hannibal, of Franklin, and of
many other illustrious men, exemplify this
truth. It has been said by a wise man, that
the reason why an old man, while he remem
bers scarcely any thin^ recent, retains a vivid
recollection of the incidents of his boyhood,

DEINOLOGIAN SOCIETY.

167

is.hecause the interesting scenes of his youth
became identyitd with hit soul. Hence the ev
ident importance of early and proper instruc
tion; and especiaUy that which may be given
on the mother's lap, and under the paternal
roof. Lessons and examples then imprinted
and principles thus implanted, wUl grow with
the mind, and forever influence its tone and
character. How responsible then ii the pa
rental charge? and how important is it, iiat
parente should be wise aud prudent and vigi-
lantT A mother's tutelage — how sacred, and
how eventful! She it is, who, more than any
other human being, may create or destroy the
germ of virtue. Remember the "mother of the
Oraeehi," and the mother of Washington.
Parents remember these immortal mothers, and
try to imitate their maternal examples.
That which is taught in primary schools
and eoUeges is called science, which is noth
ing but knowledge reduced to system, so as
to be easily acquired, well retained, and
promptly appliea toils proper use in the busi-
nesi of life. All human science may be
comprehended in a threefold generalization —
Ist. Mathematical, or science of number and
quantify; 2nd. Physical, or the science of ex
temal nature; and 3d, Moral, or the science
which teaches tha moral nature, and obliga
tions of man in the natural, social, and eivil
state. In each of these classification!, many
subordinate departments of knoweledge are
included. We wUl repeat some of the more
elementary and essential only. Pure mathe
matics, comprehands arithmetic or the science
of numeration, and geometry, or the science of
mensuration. Physical science embraces me
chanical philosophy, or the sensible motion
and action of bodies — Chemistry, or the in
herent qualities and laws of matter — ^Anatomy,
or the animal itructure — Physiology, or the
functional economy of animal life — Zoology,
or the nature of irrational animals — Botany, or
the properties of the vegetable kingdom —
Minarology , or the nature of the mineral king.
dom — ana Geology, orthe structure and com
position of the earth. Moral science includes
Ethics, or the duties of man, as a rational and
aecountabls being — Mental Philosophy, or the
phenomena of mind — and Jurisprudence, or
the principles of legislation. This is a very
imperfect outline; but general and incomplete
as it is, it may serve to show the vastness and
beauty, and value of that intellectual domain,
which it isthe destiny of mind to achieve and
enjoy. The higher branches of scholastic ed
ucation are taught in colleges and universities,
And it is the duty of all, who feel an interest
iu the propagation of knowledge, to give their
countenance to such institutions. It is the in
terest of the poor as well as the rich, of the
weak as well aa the strong, that his own coun
try should provide suitiible nurseries for in
v^orating and expanding the faculties of its
owB citizens, so aa to acquire for itself charac
ter and power, and, for the humble and the
obseure, protection and instruction. Such
men as Socrates, aud Demosthenes and Ciee
ro and* Vawton and Bacon and Burka and

Adams and Jefferson and Hamilton and Mad
ison — are, to the moral, what the luminaries of
Heaven are to the natural world. The higher
institutions of learning are almost indispensa
ble to the production of such moral lights.
And it should not be forgotten, that most
ofthe patriarchs of the Revolution — ^men full of
scientific, as well as practical wisdom, had
been students in colleges or universities.
CoUeges not only prepare the more active
minds for usefulness and distinction, but they
are efficient agents for the diffusion of correct
elementary education. Wrong education is
worse than no education. Primary schools have
been woefully deficient in qualified teachers,
and, not unfrequently, have been injuriously
perverted by ignorant pedagogues. The col
leges, if well patronized, might furnish for
common schools, teachers of the proper qual
ifications, who, in the useful employment of
moulding the human mind, might acquire, for
themselves, honor, and for their country, glo
ry. And thus too, might society be relieved
of literary drones, who, by idleness aud in
activity, too often propagate a pestilent con
tagion in the sphere in which they move. No
vocation is more honorable or useful, than that
of the elementary teacher; and no man can be
too exalted for such employment. When such
men as Pythagoras andt Adams and Crawford,
were teachers of youth, who should be asham
ed to be a good school-master? But elemen
tary teaching will never be as general or as
useful as it should be, until well educated
teachers can be easily obtained.
Common schools, properly conducted, are
also useful auxiliaries to colleges, in affording
convenient opportunities for cheap preparatory
education. But were they adapted to no other
purpose than that of educating those classes
of society whose sphere will be that of the
common mass, their utility could not ba over
rated. The value of elementary education
has but seldom been rightly estimated by the
enlightened and benevolent; and never has
been justly appreciated by that portion of man
kind, whose destiny forbids higher scholastic
attainments . Every citizen should be acquaint
ed with the rudiments of science — ^the elemen
tary principles of the arts of civilized man —
the organic laws of the animal, vegetable, and
mineral kingdoms of nature — the fundamental
principles of moral and political law, and hia
own duties and rights as a man and a citizen.
It is the duty as well as the interest of every
citizen to understand the principles of the
Federal and State Constitutions; and, though
the American statesman cannot hope to seethe
municipal laws of his country taught, like
those of Minos once were, as a part of com
mon education, stUl he should desire to see
every citizen instructed in the principles of
his government. These, like the twelve ta
bles of Roman law, should be taught as a
carmen necetsarium in every common school.
The great object of elementary education,
is, to employ the youthful mind in such a
manner as to establish proper habits of thought
and of action— to prepare the pupU for tha ac-

168

ADDRESS ON BEHALF OF THE

tive business of life, and to enable him to un
derstand his true destiny. And the body, as
weU as the mind, requires .attention. "A
sound mind in a sound body" is essential to
happiness, and to the utmost usefulness. Gym
nastic, and other more scientific exercises of
the body, are conductive to grace as well as
to vigor and health; and are therefore useful
if not indispensable. Wa feel that We are in
danger of degenerating; — active, industrious,
and moral habits are too much neglected.
But the best interests of the commonwealth,
no less than our own saci'ed duties, require
that our daughters, as well as our sons, shall
be well educated — instructed practically in all
the domestic duties, and instructed also in the
elements of science. Woman's influence on
the destiny of naan is unsurpassed. She will
ever be his good or his evil genius. The ob
ject of his most tender relations — the first and
most impressive instructress of his children
— his confidant — his counseUor^ — the compan
ion of hisjoys — ^the sharer of his woes — ^WlFE
—MOTHER — surely she should, by proper
culture, be well qualified, in every respect, to
dignify and adorn the important station to
which Providence has exalted her sex.
A well organized system of common schools,
sustained by the public sentiment, is indis
pensable to the gi^eatest ha.ppiness and the
highest glory of the Republic. The poor, as
well as the rich, must be protected. AU should
be carefully instructed. Eveiy child in the
commonwealth is a child of the commonwealth
and should be equally the cherished object
of her guardian care. Here lies her strength
— here her liberty — here her true glory. Let
her rally all her moral energies, and blend all
her scattered rays ; let not her neglect cause
one intellectual flower to "blush unseen, or
waste its sweetness on the desert air" — and then,
and not till then, she will haveequality — then
power — and then an unwritten law in the
hearts of her people, far more salutary and
effectual than all the sanctions of all her writ
ten codes.
In our own blessed America, the importance
of diffusing truth cannot be exaggerated. Is
man capable of self-government? This prob
lem of ages is now, and perhaps for the first
time, subjected to a fair test. Americans may
solve it for themselves, and for the whole hu
man race. All has been done for us that the
mere structure of government could have done
— all that the^ wisdom and example of our pa
triarchs could do. But our institutions are
yet in a state of eventful trial. They are but
the anatomy of liberty — public sentiment is the
SOUL. The vitality as well as the longevity
of the yet living idol, depends on the purity
,ind intelligence of those who worship at her
shrine. The virtue of our fathers imparted
the Promethean spark, aud the breath of their
children must preserve, or extinguish the ves
tal flame which they kindled on our country's
altar. The vital air of liberty is puie intelli
gence, as pervading as the sun. 'Without this

vivifyiugelement,thewholeorganicstructure,i;t;;tionroyrrTv;rSn4ti^^^^^^^^^^

beautiful as it is, must soon become a lifeless
mass, and perish.
But mere philosophy, however sublimated
or prevailing, is not the only, or the surest
safeguard of human liberty. Reason, the
most "unerring, is still fraU and flitting and, un
aided, is but the Eutopia of More, or the Pta-
tonopolis of Plotinus. This important truth is
demonstoated by the history of the- Pagan
world. Social man needs a law immutaUe—
some motive beyond the grave — a, pure and
fixed religious principle. This is his ANCHOR
— sure and steadfast.
In its purity and simplicity — the Christian
Religion is the friend and companion of civil
liberty — its constant companion— its best friend
It taught mau his true dignity, and his true and
equal rights. It elevated woman to her just
rank in the scale of being; and, even amid the
perversions and prostitutions of a wild super
stition, it rescued literature and civilization
from the ruins of a dark and desolating age.
It is not the metaphysical, or polemic theology
of the schools, nor the infallible "orthodoxy"
of sectarian bigotry, nor the false religion of
persecution, nor the bloody religion, of Smith-
field, and of the Inquisition — of which we
speak; but it is that mild and pure, and holy
religion, which rebukes intolerance, and dis
pels ignorance, and subdues vice — ^that heav
enly religion which beams in the pious moth
er's eyes, and hallows the accents of the pious
mother's lips — that religion which proclaims
peace on earth, and good will to men, and in
spires that love to God andto man which pu
rifies the hearts and overcomes the world.
It is the prevalence of this last and brightest
hope of man that will establish his liberty on
the rock of ages. And this it was, pure and
unconstrained as it came from Heaven, that
the father of his country recommended to the
people of these United States, When, in his
valedictory address, he conjured them, by all
they held dear, not only to regard religion as
the firmest prop of their liberty and happi
ness, but to treat, as a public enemy, him who
should ever attempt to undermine, or to
shake it-
Had not Washington, like Fabius, led our
armies, and saved our country, and then, like
Cincinnatus, retired to his farm — had not his
influence — more than that of any other man,
induced the adoption of the Federal Constitu
tion — ^had not his rare virtues, and the weight
of his character preserved that Constitution
in its infancy, aud paralyzed thej Briarian
monster that threatened its destruction — the
closing act of his public life— his fareweU ad
dress to his countrymen, would alone have
entitled him to an imperishable monument.
Let those countrymen always revere his prin
ciples, and follow his advice, and their liber
ties will last as long as their, country shall be
known as "the country of Washington."
Young Gentiemen of Centre College, at
whose request this address is attempted-r-may
I now be permitted, respectfully, to invite your

DEINOLOGIAN SOCIETY.

169

pects? Having engaged in the pursuit of
knowledge in its highest branches, much will
devolve on you, and much will be expected of
you, as conspicuous actors in the opening
scenes of active life. Tour efforts and your
examples, may have a peculiar influence.
ShaU it be salutory, or shall it be pernicious?
wUl you, by honoring science, bring honor on
yourselves, upon this excellent institution,
and upon your country?
He who desires tp be practically wise, should
he a close observer of men; and should be,
not only industrious and persevering, but
systematic and patient. It' was chiefly by a
judicious method, that Bacon achieved won
ders. Although engaged actively in the Ju
risprudence of his day, he wooed the muses
with a success almost miraculous; and, whUst
he was deciding two thousand chancery caus
es in a year, he found time, not only to display
his Botanic taste in beautifying his garden,
but to •write his Novem arganum. Had he,
like Leibnitz, wasted his time in desultory or
misceUaneous studies and vainly attempted
universal conquest, he would, like thai litera
ry epicure, have achieved but comparatively
bttie. He was also patient. He lived for
mankind, and looked to posterity for his re-
'ward; s6 did Solon, and A^e^wton, and Milton,
aud Franklin — whose names possess nlore mor
al influence than those of all the sciolists and
chieftains the world ever saw.
Many a signal abortion has been the conse
quence of impatience, and premature ambi
tion. Let the young student and tho nestling
politician, remember Tiberius and Caius Grac
chus, and let him never forget the Dialogue
between Socrates and Glauco. Let him re
member that it is in the maturi tv of right
knowledge, practical as well as speculative,
that useful service is to be rendered, or unfad
ing laurals to be plucked — that, if he wishes
to t)e distinguished as a Jurist he must do as
Ceke, and Mansfield, and Marshall- -did that, if
he desires political fame, he must follow the
example 01^ Cicero, of Burke, of Chatham, and
of Madison; and that, if he wishes to adorn
tbe sacred desk, he should look to Sanrin, to
Whitfield, and to Alexander.
Learn as Bacon, and Ne^wton, and Franklin
learned — ^by patient and rational induction.
Banish all false idols whi ch lure but to decoy ;
and especially abjure Bacon's idolta Tribus and
idola Theairi. A servile imitation of distin
guished men — a proneness to theories, and an
' eagerness for generalization, have ever been
common stumbling-blocks iu the way of
science. Aristotelian abstractions, and Aca
demic jargon reigned with a mystic and fatal
spell over the intellectual world for two thou
sand years. Cartesian reveries then had their
day of pernicious authority; and even Bacon
the founder of the true system of philosophis
ing by induction from facts well ascertained,
did notlive to be hold the complete triumphs of
his great innovation, and was not himself, in
all respects, an examplar of his own rational
principles. In the succeediug age, the human mind,
22

rendered presumptuous by its achievements'
and still ignorant ofthe true principle of knowl
edge, or inattentive to it, became sceptical, and
not unfrequently. Atheistical. And though the
Atomic philosophy of Leucippus and Democri-
tus hadbeen exploded, and Plat-onism and Sto
icism had been renounced, a new system of
Epicurianism was erected on their ruins.
The physiological hypothesis of Locke, be
ing perverted, or misunderstood, encouraged
Materialism. And the developnients of the
inductive process having inspired a delusive
confidence inhuman reason, the Humes and the
Berkleys of the 17th century, dethroned com
mon sense, unhinged the minds of men, and
left nothing certain but the uncertainty of
knowledge. Atheism aud Theophilanthropy were the
fruits of their metaphysical sophisms of pre
sumptuous reason and perverted ratiocination.
And anarchy, vice and confusion followed.
But knowledge is certain; and true knowl
edge inspires humility, as well as confidence.
It teaches the mind to move in its appropriate
sphere — to forbear enterprise beyond its pow
er — to trust to its own light as a safe guide in
its own domain, and to follow that light where-
ever it leads, aud, when it goes out, to stand
still. Newton is the most perfect model ofthe
true philosophy, and most happily iUustrated
its proper sphere and its great efiicacy.
Knowledge — thorough and right knowedge,
is opposed to bigotry, selfishness, and cynic
ism — it wages an incessant war with idleness
and vice — it is benevolent, and its benevolence
is active — it aspires to positive usefulness, and
is afraid to do nothing but that which is ¦wrong
— it will not follow a multitude to do evil — it
knows that "the feai^ of man bringeth a snare"
— it knows that popularity is not an infallible
evidence of merit, and is as evanescent and
uncertain as the wind: — it knows that to do
good, and not to seem good, is the duty of man
— and well it knows, that honorable fame, is th e
reward only of honorable conduct; that to des
pise such fame isbut to despise the virtues which
alone can earn it, and that the Amaranthyne
¦wi^eath can adorn none but the good and the
wise, who climb the lofty cliff, ¦w^ere it blooms.
The enlightened mind has resources for ad
versity, which no vicissitude of fortuue can
destroy, and the want of which no wealth or
power can supply. When liarrassed by care,
assailed with obloquy, or bereaved of friends,
the man of time philosophy has still a fund on
which he can draw with confidence, and of
which no earthly power can ever deprive him,
as long as his reason is left unimpaired. ¦ The
sanctnai^y of a pure and cultivated mind will
afford him peace and comfort when darkness
ahd desolation are around him. Rememher
Cicero. He had seen his country's glory blast
ed by upstart demagogues — he had been exiled
and his house had been demolished by the
mock patriot Clodius — death had borne from
his arms his lovely TuUia, the only remaining
prop of his declining years — but then, even
then, when, to the mere animal man, nothing
remained but gloom and despair, he enjoyed

170

ADDRESS Oir BEHALF OP TBS

in his retirement, the society of the illustrious
dead, and the consolations of philosophy, and
thus soared above destiny and robbed fate of
its victim. To his friend Sulpicius, he wrote
thusr-"My daughter remained to me — that
was a constant support — one to which I al
ways had recourse — ^the charm of her society
made me almost forget my troubles; but the
frightful wound I have received 'in losing her,
uncloses again all those I had thought healed.
I am driven from my house and the Forum."
But tp'Varrohe wrote thus — "I have recon
ciled myself with my books — they invite me to
a renewal of our ancient intercourse — they
tell me that you have beeu wiser than I in
never having forsaken them — I seek my repose
with true satisfaction in my beloved studies."
Do you desire that fame which shines like
the twinkling star, aud whose temple stands
immovable on the mountain's summit? Knowl
edge — true knowledge, is the beaten and toU-
Bome way, and all other paths bewilder and
mislead. Who would not prefer the fame of
Socrates to that of Cleon — that of Cicero to
that of Clodius, or Anthony, or Lepidus, or
Cffisar? — the fame of virtue to the blazonry of
titles or of arms? — Knowledge is the only pass
port to a virtuous immortality ; and its per
sonal exemplifications shed a happy moral
influence. Sappho, you know, was canon
ized as the 10th muse; and old Cato was call
ed the 13lh table of the Roman law. And
the classical reader remembers that, when al
most all the Greeks, captured with Nicias at
Syracuse, had died in dungeons, a remnant of
the survivors saved themselves by the recita
tion of beautiful extracts from Euripides.
How potent was the shadowed genius of the
immortal Athenian when it alone melted the
icy hearts that nothing else could touch, and
broke the captive's chains which justice, aud
prayers, and tears, had in vain tried to un
loose? And hence "the glory of Euripides
had all Greece for a monument." He too was
elevated by the light of other minds. It is
eaid that he acquired a sublime inspiration
whenever ho read Homer — whose Iliad and
whose Odyssey — the one exhibiting tho fa
tality of strife among leading men^he other
portraying the efficacy of perseverance — have
stamped his name ou the roll of fame in let
ters of sunshine, that will never fade away.
No memorial tells where Troy once stood —
Delphi is now mute — the thunder of Olympus
is hushed, and Apollo's lyre no longer echoes
along the banks of the Peneus — but the fame
of Homer still travels with the stars.
But my young friends, knowledge, to be
useful, must be active. If you wish to be most
useful, do not, like Atticus, shrink from ffie
responsibilities of public life, nor always
agree— right or wrong— with the dominant
party, — but, rather like Cicero, actively and
honestlay devote aU your talents tothe service
of your country, and in vindication of its in
stitutions and its liberties. With Epaminon-
das, neither seek nor decline, on account of
their imputed dignity, places of public trust;
and always rtmsmber his mwam, that, it is

not the station, but the manner in which it is
filled which gives dignity and honor. Always
thus acting, you may be benefactors of ydnr
race— may help to exalt your country and con
solidate its liberties, and at last earn for "your
selves enduring monuments.
Fellow Citizens — aU who hear — of every
age and condition — we all have our allotted
places, and our alloted duties. Shall we fill
those places, and discharge those dutiei as
freemen ought? Whatever may be our station,
our influence wiU be felt. Then, "act well
your part, there all the honor lies."
Like the golden leaves of Autumn, our pa
triarchs are dropping around us; a few only
remain to wateh over the work of their hands,
and close the age of glory. La Fayette — the
last surviving general of the Revolution —
friend of our country, and benefactor of man
kind — has just taken his flight from the troub
led scenes of earth, and is, we hope, once
more and forever, united with Washington and
Adams and Franklin. And soon — too soon
for us— not one of the patriarchal bandwiU be
left behind to guide and to instruct the new
generation that succeeds them. And when —
appointed by Heaven — ^the last survivor shall
close the long line in its march to the skies,
shall he tell that the great work of their lives
was in vain — that their sons have proved re
creant and dishonored their trust? — orshsdl he
bear the glad tidings that all is yet safe? Let
us be true to ourselves and faithful to the mem
ory of our illustrious dead, and all will be safe
— safeto us, and safe to those whom we shaU ,
leave behind us. AU depends on ourselves and
our fellow-countrymen. Shall this Union be
dissolved, and the fame and the ashes of our
father's di'vided? Will we bequeath to our chU-
dren happiness or woe — degradation or glory?
Our work is not hard. Honesty, and vigi
lance, and true public spirit among ourselves,
and proper examples and precepts to our chU-
dren, will finish all that remains for us. Let
us improve our country, and preserve and
strengthen the fabric of liberty reared by our
predecessors; and let us, by the proper means,
prepare our successors for its continued pre
servation and enjoyment. The age of glory is
past or is fast passing away. Let this be the
age of improvement — improvement here as
well as elsewhere— improvement in virtue aud
intelligence— in government and in laws.
And then— after we too shall have joined
oui friends and the friends of our country
above— should our departed spirits be permit
ted to re- visit the scenes of our pUgrimage here
below, a century hence, we may see the Star-
spangled Banner— unsoiled and unrifled—
proudly waiving over an hundred million of
our posterity, free and happy, and grateful to
those who completed the great work our fath
ers began. And then too— with Washington
and Adams and Jefferson and La Fayette—
may we behold, in the temple of concord and
union, the altar of liberty, the altar of justice,
and the altar of God, stiuiding side by side—
nrm, broad, and reaplendant; and consecrated
forever to Earth and to Heaven.

PRELECTION

Introductory Lecture, delivered in the Chapel of Morrison College, on the
fth of Novemer, 1835-
Lexington, November 9th, 1835.
Dear Sir: — We have been deputed by the Law Class of Transyl
vania University, to express to you the high gratification they received
from the delivery of your Introductory Discourse; and, to request, that
you would favor them, with a copy for publication.
We take pleasure in performing the duty assigned us, and are,
With great respect, your obedient servants,
BENJ. TOMPKINS,
0. M. CLAY,
B. E. GRAY,
> W. M. TUNSTAH,,
J. F. BUCKNER,
R. H. COCKE,
J. B. HOUSTON.
Hon. George Robertson, Professor of Law, T. U.

Lexington, November 10th, 1838.
Gentlemen: — ^In answer to your polite note of yesterday, request
ing a copy of my late Introductory Lecture, for publication, I tender to
yourselves, andto the Law Class whom you represent, my acknowledge
ments for your and their kind consideration, and freely present you with
a copy of the address.
With sentiments of high respect and sincere friendship,
I am, Gentlemen, yours respectfully,
GEORGE ROBERTSON,
Messrs. Tompkins, Clay, Tunstall, Buckner, Cooke and Houston.

ADDRESS.

General expectation, as well as established
usage, demands, at this professional anniver
sary, a public address introductory, to the di
dactic course of legal instruction in which we
are about to engage. The pressure, until now,
of other and more important public duties has
loft us leisure scarcely sufficient for some gen
eral and discursive suggestions respecting the
character and eleihents of Law, as a science —
a subject which, in its most graceful and at
tractive form, would be comparatively dry and
uninteresting to a miscellaneous auditory.
Therefore, in attempting the discharge of this
preliminary duty, we respectfully invoke your
patience and indulgence.
Among human sciences. Jurisprudence is
first in utility, first in variety and extent of
knowledge, and should therefore be first in dig
nity and in public estimation. But neverthe
less, vulgar prejudice, arising from ignorance
of its true nature and extent prevailing among
too many of the select ' class whose lives have
been ostensibly dedicated to it as a branch of
professional learning, has doomed it to an un
just degi'adation in public opinion. T/hen
considered philosophically, it isnot, asit has
been too often deemed to be, a circumscribed art
or trade, altogether practical and arbitrary,
but is a vast department of knowledge, pre
eminent in value, illimitable in extent, and
infinite in detail — embracing, as far as it is
visible, in its luminous outline, the elements
of all human science- — the concentrated wis
dom of ages— and the immutable principles of
natural fitness and enlightened reason.
Jurisprudence is, as we know, generally de
fined to be "the science of Law.' Laws, ac
cording to Montesque, are but the necessary
relations of things. And, thus comprehen
sively uuderstood, law governs every thing in
the physical and moral universe; and is di
visible into two great orders — natural aud pos
itive — or universal aud civil. Natural law is
immutable in its nature, and universal in its
authority and operation ; and is cither physical
or moral. Physical law governs the material world
and all animal existence; aud is sub-divided
into various subordinate departmeut.s — such
as Chemistry, Mechanical Philosophy, Geol
ogy, Anatomy, Phislology, Botanv. cbc, itc.
Moral law is the system of rules prescribed
by God, for the conduct of rational beings in a
state of nature, or independentlv of civil rela
tions aud obligations, and is of two classes —
Theology, or the relations and duties of man
to his Creator — and Ethics, or the natural re
lations aud obligations of man to his kind.

Universal law, thus comprehending so many
interesting departments of knowledge,, each
depending on natural fitness andctemsd prin
ciples of reason and of right, must be admit
ted to be, not only a perfect, but a, beautiful
and voluminous science, which vitally concerns
all things and all men, under all circHmBtan-
ces, and throughout all time. It is, in the ,
only perfect sense, the supreme law, which
cannot be universally obeyed without univer
sal harmony and peace, or violated, in any
possible instance, without consequent disorder
and punishment. It is the immovable founda
tion of all human obligation and of all human
power; and an enlightened contemplation of
it iu its outline or in any of its branches,
however minute, tends to elevate and ennoble
the character of man, and must improve and
exalt the mind.
But of a system so infinite and so sublime,
a more particular analysis would be now inap
propriate. We will only add that univer
sal law is either a fixed and controling princi
ple of being, or an inflexible rule of action
emanating from the Ceeatok of all things, and
binding the universe to the Throne of Heaven.
Positive law is an artificial system of rules
resulting from, and peculiar to the social and
civil state of man, prescribed by human leg
islation for regulating civil conduct, and en
forcing civil obligations. These laws, mutable
various and comparatively imperfect, but in
dispensable to the happiuess and dignity of
our species, constitute the elements of civil
jurisprudence. And it is in this restricted
sense that the term jurisprudence is profes
sionally used and generally understood. Aud,
though universal jurisprudence is, as it has
been defined — "the knowledge of things hu
man and divine, the science of what is just
and unjust" — thc latter branch ofthe definition
alone designates the science which engages
the peculiai' attention of the legislator and
jurist. This may be appropriately termed civ
il jurisprudence, because it regards man in
the cii-il state, and regulates political and civ
il relations. 'This department of jurisprudence
may be sub-divided into general and particu
lar, rational and arbitrary. General law is
that civil code which has been recognized by
all civilized communities of men, and is foundf-
ed on the principles of universal reason and
right. ^ Particular or local law is thc system of pos
itive enactments, which are peculiar to one
place or people. The body of the laws of every
enlightened age or nation, are rational, or de-
ducable from reason and analogy. This is

IHTRODUCTORT LECTURE, DEMVERED IN

173

science; profound and exalted soience, Laws
merdy arbitrzuy and local ara comparatively
rare and unimportant.
Rational law prevails, to some extent, among
all civiUzed men, and is the same every where.
And hence among nations; differing in cli
mate and in language, tiie same general rules
of individual right and relative justice may
generaUy be found to prevail.
A thorough knowledge of civil jurisprudence
pre-supposes a general knowledge of the prin
ciples of justice, and of social and political
organization, as weU as an acquaintance with
tlie history and laws of nations, and the local
laws of our own country; and requires a mind
of peculi^ power, enlightened by general sci
ence, and invigorated by severe and systematic
study; aud consequently, it must be a science
of ahigh order. This may be demonstrated
by a very slight attention to the nature of law.
And our chief purpose in this initiatory ad
dress is, to improve this interesting occasion by
an imperfect analysis of the elements and ob
jects of positive law, and by some incidental
reflections on our own peculiar institutions.
Society is the natural state of man. This is
proved by his history in every age, aud coun
try, and cUme; and may also be demonstiated
by considering, in a rational and philosophical
spirit, his physical and moral adaptations — ^his
capacities — his sympathies— his corporeal im-
becUity and helplessness — his great improva-
biUty and potential pre-eminence — ^his faculty
of speech — ^his destiny. Societies cannot exist
without conventional organization and laws;
nor be happy or prosperous, unless those laws
be just and eflfectual. As all men are by nature
entitled to equal personal rights, and as the
greatest attainable good of the greatest number
is the ultimate object of political association,
the will of a majority possesses an inherent
and natural authority, as a law for all, and
which therefore, each constituent member must
be presumed to have agreed, by the act of be
coming a member, not only to obey, but to aid
in enforcing and upholding, if it be consistent
with the fundamental principles of their civil
organization . As every civil community must
have a common will and a corporate existence
and power, each individual member must have
surrendered, by necessary implication, as much
of his natural liberty as may be necessary for
giving sufficient authority and effect to the ag
gregate wUl, to be expressed and enforced ac
cording to the terms and ends of their associ
ation into one body politic. And consequent
ly, as human society and human government
are indispensable to the personal security and
dignity or every individual of the human race,
all positive laws, authoritively enacted and
consisting with the principles of universal
law, possess a supreme sanction as eflfectual
and as obligatory as the security and welfare
of the aggregate body and of every constituent
member can maie it. It is the interest, and
therefore, the duty of every citizen to acknowl
edge the authority and maintain the efficacy

which alone can preserve order o^tranquUity ,
or ensure justice, peace or security. And here
we may, at onoe, perceive the nature of the
obligation of human laws — the importance of
wise and just legislation — and the beneficence
of a stable, authoritative and enlightened ad
ministration of positive law. Human legisla
tion, always imperfect, must correspond with
the character of the legislature. In legislation,
as well as in physics and in morals, the cause
will produce its kindred eflect; and, as light
cannot spring from darkness or'virtue from
vice, so neither can wise and salutary laws be
the offspring of legislative ignorance, selfish
ness, or passion. Just and rational legislation
is the rare fruit of prevailing virtue and intel
ligence. But, in every civilized community,
the occasional aberrations and capriciousness
of fhelegislative will, almost invariably yield,
in time, to the salutary wisdom of experience,
and to the settled predominance of principle.
The enactment and enforcement of law re
quire the exercise of the three primordial func
tions of sovereignty — the legislative — ^the ju
diciary — and the executive; and the deposito
ry of these' powers possesses inherently, in a
relative sense, incontrolable authority; and
hence all law is, in the same sense, paramount
and obligatory as long as it exists. Just comes
bomjubere, to command: and right is rectum
in Latin, the past participle of regere. Thus,
in a legal sense, one person's right is that
which all other persons are ordered or com
manded by law to let him have and enioy . In
legitimate governments, all human laws are
enacted by the people, or with their tacit or pre
sumed authority and consent, and, operating
as they do, personally, the legislative authority,
wherever it may be deposited, or however it
may be limited, must be superior to the wUl or
authority, or power, ofany memberof the body
politic; and is, therefore, in this sense, su
preme. But it is not necessarily the supreme
power of the State; and is certainly not so in
the ICorth American states, whose written fun
damental laws limit the legislative authority
— distribute tiie functions of government into
three separate and co-ordinate 4epartments,
each independent of the others, arid reserve to
thepeople ultimate supremacy. In England
there is no fundamental law — that which is
called the British Constitution, is nothing but
a set of statutes and principles of unwritten
law, which have the authority of legislative
prescription, and have been, in some degree,
consecrated, in the popular feeling and judg
ment, by age, and national associations, and
ancient reminiscences. Hence, in England,
Parliament is said to be omnipotent, and none
ot its enactments can, in a practical and effec
tual sense, be deemed unconstitutional, are
therefore void. j , , ,
But here our constitution and fundamental
laws are declared tobe supreme: and therefore,
as the judiciary must, inthe administration of
the laws, decide what the law of each case is,
it must necessarily disregard, as a nullity, any

and dienity of the laws of his country; for ft legislative enactment in violation of the con-
- the supramacy and inviolability of law, ^stitution or the supreme law. No such m-

174

mTROI>trOTORT LECTITRE DELI^irBRED IN

terdicted enactUient can here be considered
law. But, in a political sense, the judiciary
of America ia not superior to the legislature
— nor the legislature to the judiciary; each, in
its appropriate sphere, is the sole representa
tive or agentiof the common and only sovereign
— the constituent body, orthe people.
Positive ' law is divisible into a three-fold
classificatiou — national, organic and munici
pal; respecting each of which we will now
proceed to take a general notice — a mere coup
d'ael view of their character and elements, as
uuderstood according to American principles
and doctrines.
Separate and independent communities are
tha natural offsprings of diversities of climate
— of topography — of moral character — of lan
guage^ — and of the vastness of the territoiy
and population of the earth, separated by
physical and moral barriers.
As a nation or state is but an aggregation of
natural persons associated into one body poli
tic for social and civil purposes of mutual im
provement, security and happiness — ^bonnd
together by some fundamental compact, ex-
Eress or implied, and governed and protected
y the same law and the same power; each in
dependent nation or state, though composed of
a multitude of natural person s is politically and
relatively to all other nations or states an unit,
possessed of legal and moral individuality;
and is, though an artificial, yet amoral being.
Having a coj'porate power and will, the differ
ent nations of the earth are, as between each
other, like so many natural persons, living in
dependently in a state of nature; and conse
quently, as' the laws of nature, though modifi
ed by the social state, cannot be altogether
abrogated, aach nation has its peculiar natural
rights and obligations, and must be the subject
of a moral law, possessing an inherent obliga
tion paramount to that of any civil or human
authority; and of course, also, there must be
among nations some code of international law
for regulating their intercourse and their recip
rocal rights and obligations. This is what is
called " tho law of nations" — which is divid
ed into the natural and the positive law of
nations. The natural law of nations is di
vided into two branches — the internal, or that
which is binding in conscience only, andthare-
fore imposes but an imperfect obligation; and
the external, or that which creates a perfect ob
ligation, wliich may be enforced by an appeal
to arms, tha vMima ratio regis. As a natural
law must ba adapted to the subject of its ap
plication, and as a nation is not precisely and
in all respects like a natural person, the natu
ral law of natural persons is only so far the
law of nations as it ia suitable to their
peculiar and essential character and rights.
A nation has a right to do whatever may be
necessary topreserve its independent existence,
and to promote the legitimate ends of that ex
istence; and an independent nation must,
from the necessity of the case, be the sole
judge, in most instances, of tho proper
means of effectuating those ends. A nation,
when it has the right to judge for itself, cannot

be amendable to the judgment and control of
any other nation, and is, of cdurse> undBrno
other obligation than that of conscience, which
requires perfect justice among nations aa well
as among men. And hence the internal law
of nations has arisen. The external law, or
law of perfect obligation, requires no further
explanation or definition than that which the
term itself imports.
Tho natural law of nations is necessarily
immutable and universal, and can be under
stood only by applying the principles of ethi
cal jurisprudence to nations as far as, in the
nature of things, they are reasonably applica
ble. The fundamental priiiciple of ethics is
that human happiness, temporal and. eternal,
is the ultimate end of human existence, and
should be the object of all human action and
pursuit. The same principle is the true test
of the necessary law of nations; and conse
quently, it is the duty, as well as the interest
of nations, to observe justice and to cultivate
peace and friendly intercourse among each
other, and to do to each other all the geod they
can, consistently with their own safety and
welfare. This was understood by the wise and
good even in the age of Xenophon, who, in his
Cyropedia, suggests a sufficient reason for it;
and that is, that no nation can reasonably ex
pect to receive from another that which it will
not reciprocate, ' or, in other words, more jus
tice and beneficence than it practices towards
others. The positive or arbitrary law of nations is
composed — ^Ist. of customs and usages which
have been established by tacitrecognition, and
are denominated "the customary law of na
tions; and 3d. of compacts and treaties, called
"the conventional law of nations." '
The positive law, depending, as it does, on
consent, is liable to change. But it is the most
extensive and practical branch of national law,
and must be learned in the civil and diplomatic
history of civilized nations, who, in modern
times, and especially wherever the christian
religion has shed its meliorating influence,
have reduced international jurisprudence to
something like a regular and harmonious sys
tem, founded on the stable and universal prin
ciples of natural justice and enlightened pol
icy. This code of laws, thus but recently ma
tured and systematically practiced among
christian nations, and to the recognition and
prevalence of which, the maxims and usages
of our Republic have essentially contiibuted,
is divisable into two classes — the one public
—the other private The public law is that
which regulates commercial, social, and di
plomatic intercourse between nations, and
defines their rights and their duties, as be
tween each other, in war and in peace, and the
extent of their powei' and jurisdiction. The
private law is a law of comity, regulating the
extent to which thelaws of one nation may
operate on persons or things within the juris
diction of another nation. The domestic laws
of the various nations of the earth, for regula
ting contracte, and succession and personal
,rignts, and the modes of acquiring, and of

THB CHAPEL OF MOERISOK COLLEGE.

175

holding and of suing for property, differ in
a greater or leas degree from each other.
The laws of one state cannot, propria vigore,
have an extra-territorial operation. Each na
tion has an exclusive right to legislate for
itself, and to enforce its own laws within its
own jurisdiction. But the interests of social
and commercial intercourse require some re
laxation of this fundamental principle of leg
islation and of sovereignty, an inflexible and
universal adherence to which would, to a great
extent, prevent that kind of personal and com
mercial intercommunication, which is most
conducive to the mutual harmony, prosperity
and happinesi ef states. A contract is made
in one state, and its enforcement is sought in
another state. At to the effect of the contract
or the capacity of the parties, the laws of the
two States are in conflict — shall the lex loci
contractus or the lex fori prevail? A right to
property is claimed to have been acquired
within the jurisdiction and according to the
laws of one nation, and the property is within
the jurisdiction of another nation — shall the
lex domicilii or the lex loci rei scitae govern?
Among an almost infinite variety of cases,
in which there may be a vexatious conflict of
laws in regard to persons and to things, these
two alone may be sufficient to illustrate the
importance of that courtesy [among the more
enlightened nations of this age, which permits
the law of one, in certain cases and to a cer
tain extent, to prevail and be enforced within
the jurisdiction and by thecourts of another;
and, as this is a concession partly ex comitate,
the system of rules resulting from it is called
thelaw of comity among nations, or the jas
privatum gentium. The mutual interests of
nations constitute tjie true principle of this
law, and the rule deduced from this principle
is, that it is the duty of each nation to permit
foreign laws to operate within its limits, ex
cept so far as its own essential rights or inter
ests, orthe just rights or proper duties of its
own citizens may be thereby surrendered or
jeoparded. It is not, therefore, altogether ar-
Ditraiy; in its nature it is a law of reason and
of justice; but its recognition and enforcement
being voluntary ahd apparently ex gratia, it is
therefore denominated a law of comity. And,
though the extension of commerce and its
train of enlightening and liberalizing agencies
have given birth and maturity, and nosmall
degree of general prevalence and authority, to
this important branch, of international law,
within the last half centuiy, still it depends
80 essentially on plain and fixed,p{rinciples, as
to be generally understood andT applied by
reason and analogy, without great difficulty or
doubt; and, surely, constituted as these con
federated States are, no branch of jurispru
dence is, to the extent of its appUcation, more
interesting or useful to the statesmen, and ju
rists, and citizens of our complicated Union.
Here it is peculiarly important; and the har
mony and best interests of these States require
that it should be rightly understood and
scrupulously regarded.
But the existenca of an inoependent state or

nation presupposes an organic syatem of laws,
brought into being by the consent, express or
implied, of the whole mass, or by the predom
inant power of the few over the many, and da-
pendent, for their character and efficacy, on
the moral and physical condition of the con
stituent body. The philosophy ©f human na
ture teaches the philosophy of government
and of legislation; and history proves that
the prevailing character of the people has ever
been, and will ever continue to be, everywhere
and in all time, the prototype of their govern
ment and laws. The organic laws of every
nation, not only should be, but will be adapt
ed to the character and condition of the pso-
ple. And from this political axiom, the inef
ficacy and abortiveness of all abstract systems
of political organization, and of all specula
tive codes of law, might have been inferred
without the aid of historic testimony. The
excellence of government or of laws is alto
gether relative; such as may be 'the beat for
one people, may be the worst for another. In
practical politics and legislation, abstract per
fection is unattainable. Men acting upon men
must act imperfectly.- The safely and happi
ness of the people are the ends of ^U1 just hu
man laws. These ends may be approximated
only by the appropriate means, \vhich are as
various as the diversified circumstances aud
character of mankind. Hence there is no po-
Utical panacea; and he who recommends such
a nostrum, is a quack, whose charlatanism is
less excusable, because it may be more perni
cious, than that of Paracelsus cr Sangrado.
There is no such thing as abstract optimism in
government or in law. That only is best
which is most suitable to those for whom it is
intended — and none is good, whatever may be
its speculative excellence, which, is inadapta-
ble to the genius and habitudes of the people.
Plato's Republic, and Harrington's Oceana,
and Moore's Eutopia are but a few of the many
monuments which speculative philosophers
and scholastic legislators have built up, and
common sense has pulled down in attestation
of these simple and practical truths.
In She nature of things, civil laws, beingmor-
al rules for the goyernraent of moral subjects,
muat,^to be durable or efficacious, be modified
according to the characteristic principles of
the majority of the people, for whom they are
enacted. And, as every body politic must
have a single will, which, however expressed,
is the actual government, the nature and the
form of the government will, of coarse, depend
on the intelligence and virtue ofthe individual
members of the corporate body. A people en
lightened and virtuous will always govern
themselves; those who are not so, never can,
but wUl be governed by the superior intelli
gence, craft or force of a few men, or of a sin
gle man.
Whether a democracy, pure or representa
tive, a republic, an aristocracy, monarchy, oil •
garchy, or anarchy, shaU actually prevail, will
depend on the moral character of the people.
But the form of government does net alt

176

INTRODUCTORY LECTURE DELIVERED IN

ways harmonize with the prevailing tone
and character of the public authority.
A constitution is a fundamental law, fixing
the manner in which the public will shall be
expressed, and the national authority shall be
exercised. An unmixed democracy cannot
practically «list. Under such a form of gov
ernment, the sovereign power will be assumed
by demagogues or usurped by force.
Therefore,sfor the purpose of wisely enact
ing and justly administering laws, the power
of the whole people m^j.st be delegated, in
some mode, to a part. And the organic law,
which prescribes tha mode of delegation, and
defines the power, and fixes the responsibility
of the public agents is, whether ¦written or
unwritten, express or implied, the constitution
of the state, which, being the will of the con
stituent, who is the only original aud ultimate
sovereign, must possess an inherent authority
paramount to the conflicting and consequentr
ly unauthorized wUlof the representative; and
must, therefore, be intrinsically the supreme
law, which, as long as it shall retaain unre
voked by the proper authority, is obligatory on
the whole, as well as on each individual mem
ber, and department, and organ of the body
politic; and its stability and efficacy will be
proportionate, not only to the degree of its fit
ness and approvableness, but also to the char
acter and effectiveness of the checks and bal
ances, moral as well as political, which may
guard it from sudden and inconsiderate de
struction or innovation. If it be popular in
its origin and- ends, the intelligence, vigilance,
and public virtues of the majority of the peo
ple are its ultimate safe-guards; but; to fortify
and effectuate these moral means, poUtical
checks are not only useful but indispensable.
These truths,*to us self-evident, have not been
and are not feven now universally admitted, al
though the history of governments, from that
•f the Jewish theocracy to this day, has dem
onstiated them by an unbroken series of mem
orable proofs. The dazzling republics and
democracies of past ages — ^what were they,
and where are they now? Let the turbulence,
and inconstancy, and demagoguery of Athens,
and of Home, and of Florence, and the mourn
ful desolations and dumb ruins of Italy, and
of Greece, and of Carthage, be rightly con
templated, and the question is satisfactorily
answered. They all, with one voice, utter this
great truth of inductive philosophy — '.'that in
republics, the people are not safe unless they
are enlightened, virtuous, and vigilant, and
unless also their fundamental rights are scour
ed by wise and prudent political entrench
ments." The history of England, the mother
of our language and common law, tells the
same truth, though in tones of varied modula
tion. The English constitution, as it now
exists, is the growth of ages. Though it has
had many trying vicissitudes and has under
gone great transformations, its Teutonic stam
ina, containing the seminal principles of civ
il liberty, have never been altogether de
stroyed. The longevity of the English goTernment is

a political phenomenon . But, though accident
has had a preservative influence, yet the phi
losophy of England's history will show that
her constitution is indebted, not only for its
maturity, but for its prolonged existence,
chiefly and essentially to the equipoise of an
tagonist elements, social, moral aud political.
The Norman Conquest, as it is caUed, was a
virtual revolution, which seemed, for a while,
to have extinguished every germ of Saxon
liberty. But these, though dormant,, were not
deadj and, in less than fifty years, began to
shoot through the thick covering of leaden
despotism which had, for a time, concealed
them. The indiscriminating severity and uni
versality of regal tyranny consolidated the
people, of all grades and all conditions, into
one sympathizing and co-operating mass. The
feudel Lords and Yeomen and vassals, thus
united by common suffering, mutually assisted
each other, and every success of a common ef
fort, iu their common cause, produced a com
mon benefit. Had the king been less absolute
and the feudal nobility more independent, as
in contemporaneous France, or, in other words,
had feudality been introduced gradjiaUy, and
not suddenly, in England, as in Prance, the
constitution of England would not have been
much better, in the last century, than that of
France; where, in consequence of their com
parative independence, the feudal Lords, not
needing the co-operation of the common peo
ple, habitually contemned and oppressed them
until they were forced to unite with the king
against their common enemies, and having,
at last overcome them, yielded everything to
the crown.
But the common people of England, thus
strengthened and upheld by the nobUity, soon
began to retrieve some of their lost Saxon
rights; until Magna Charta was wrung from a
reluctant and humbled king. This, being but
statutory iu its character and ¦without effectual
political guaranties, was frequenUy disregard
ed by subsequent sovereigns; but the Baronial
war against Henry III ., having given birth to
the house of Commons, the third estate in the
government, and succeeding continental wai's
having compelled the Crown to soUcit contri-
buti.ons, the Commons soon were taught to
use the great leaver of the British Constitu
tion, the exclusive right to appropriate money
or impose taxes for the support of government,
and the consequent power to withhold sup-
Elies until the grievances of the people had
een redressed. Thus nourished, civil liberty
had taken deep root during the reign of the
Plantagenet dynasty, until the despondence
and exhaustion produced by the intestine
wars between the houses of York aud Lancas
ter paralyzed all effectual opposition to the
absolute will of the two Henry's of the Tudor
race, which succeeded. But Henry the VllI,
whose proclamation was Law, being incensed
against papacy, because it would not allow
him to repudiate his wife Catharine and many
her maid the pretty Anne Boleyan espoused the
reformation, which had then begun to dawn —
,the discovery of America had begun tostimu-

'THE CHAPEL OP MORRISON COLLEGE

177

late a commercial entei'priso tending to enrich
and elevate tie common people- — and the
Press was beginning to shed abroad its vivi
fying beams. The combined influence of these
i^encies — that is, the prevalence of the re
ligion of equality and liberty— the cxteusion
of commerce — and the light of the press — to-
g;ether ¦with other incidental and accompany
ing causes,. gradually improved thc social and
political condition of the people until the te
merity and obstinacy of Charles the first, ¦who
did not understand the spirit of his age, pro
voked his own decapitation, which was suc
ceeded by a nonainal Commonwealth, but an
actual Ci'omwellian Despotism, more rigorous
and less disguised than that of Augustus
Csesai'. The reign of Cromwell was never ap
proved by the mass of tho people,, but was
sustained only by his army aiidby the fanati
cism of a smalt party— and, as soon as the pop
ular voice could prevail, a Convention Par
liament recalled Charles II. and restored the
constitution as it ¦was in the time of Charles I,
with the exception of the abolition of militai'y
tenures and the substitution of Other means
for providing a royal revenue. The indeiUn ity
and reparation acts, and the act for the set
tlement of the church ¦ were only temporary
expedients. But, though the spirit ef the con
stitution was greatly improved and the pre
rogative of the crown considerably reduced by
the abolition of military tenures and their op
pressive incidents, no reign was more absolute
and no court more licentious than that of the
popular Charles, whose restoration, being the
consequence of general alai-m at premature in
novation and partizan fury, was consequently
foUowed by a servile adulation and abject loy
alty bordering on idolatry. The problem pre
sented in this memorable transition is solved
by the fact that the people were not prepared
for a republican government. But neverthe
less, benumbed and besotted as England was
during this profligate reign, the spirit of the
age, excited to action by trivial circumstances,
abolished the Star Chamber, which had been
used as an engine of oppression, and also in
duced the enactment of the habeas corpus and
other salutary statutes. Many have supposed
thatthe most efficient agentinproducing these
results was the popiUar belief that the revenue
¦was wasted by the king and his court in vo
luptuousness and debauchery! aad hence, uot a
few of those who have studied the histoi'y of
the British Constitution have ascribed to El
eanor Gwin, and to Barbara, Duchess of Cleve
land, and to Louisa, Duchess of Portsmouth,
the accidental merit of hastening tho down
fall of the House of Stewart, These causes,
co-operating with thc arrogant pretensions of
.James II. and the common apprehension that
he was exerting his influence against Protest
antism, accelerated, if they did riot altogether
ii-oduce, the civil revolution of 1688, which
._as been looked upon aS' settling the British
constitution and consolidating the liberties of
England. But, if it be entitled to such merit,
it derives that title, not so much from the fact
that it exploded the jure diiiino pretension of
23

I

kings and illustrated the true doctrine, that
princes and ministers and governments are in-
.stitutod bythe people, aud are responsible to
tho people , as from the less conspicuous fact
that the act of settlement secured the independ
ence of the judges, by providing that they
should be entitled to hold their commissions
during good behavior and the life of the king,
and thus furnishing the only certain and ulti
mate guaranty for thc preservation and effica
cy of acknowledged principles, which, as long
as thc judiciary was dependent entirely on the
pleasure of the croivn, could have been nothing
better than delusive ahstractions. It is the
security of person and jiroperty, assured to the
most humble by the independence of an en
lightened judiciai'v and a wholesome common
law, which, more than every thing else, endears
England to the heart of her people, and
prompts her forlorn tars to nail their country's
flag on high, and cheerfully die in its defence.
And, had not this Doric column been reared,
the complicated fabric of British liberty, the
Mosaic work of ages, could never, with all its
other props, have withstood, until now, the
nndenninings of corruption or the stormings
of faction.
But though, since the I'evolutiou, justice has
been more stable and jurisprudence has been
more improved than in all the ages which had
preceded it, still there are radical defects in
the British system; and one of the chief of
these is the supremacy of legislative will. Thn
British constitution lacks the soul of a fun
damental law. It has no other political guar-
.anty or principle of vitality than the pleasure
of King, Lords and Commons, in Parliament
assembled. An act of parliament inconsistent
with the constitution, is nevertheless the su
preme law, and, in the language of Mr. Hal-
lam, the utmostthat can be said'of it isthatit
is — "a novelty of much importance, tending
to endanger the established laws." The con
stitution of England, venerable as it is, can
be found only in the statutes and politicalhis-
tory of that distinguished Isle. Such a gov
ernment could not stand in such a country as
ours, or in any country ¦where there is an ap
proximation towards practical equality in the
rights and the condition of tho people. And,
though in England the inherent imbecility of
which we are speaking has been hitherto, in
some measure, supplied by artificial expedients,
yet, if her institutions shall become much
more popular in their texture, her coustitution
must become the supreme law and its practi
cal supremacy must be secured by other guar
anties than any now provided, or, otherwise,
dissolution must be inevitable. A landed ar
istocracy, tho stock in an irredeemable na
tional debt — the rival interests of the crown,
and nobility, and hierarchy, and commonality,
cannot always preserve a safe and stable
equilibrium. The spirit of this age will, if
it go on, require other and more comprehensive-
expedients. Liberalism and rationalism are-
abroad in the world; and all institutions of
men must, sooner or later, feel and acknowl
edge their plastic influence.

178

INTRODUCTORY LECTURE, DELIVERED) IN

In Ihese confederate states — foi the first time
on earth — the experimeut of written constitu-
lipns, popular in their nature, declared to be
the supreme law, and formally adopted by all
the people in convention, are now m eventful
progress. The issue can be foreseen only by
Him who governs all things and does all things
well, aud who, not only made all men free
moral agents, but endowed them "ivith noble
faculties for attaining an exalted destiny here
and hereafter.
Our systems of government are peculiai^ly
complex in their structure, though perfectly
simple in their elements. All the people of
all the states, with separate state constitutions
of striking similitude in spirit and outiine —
have adopted a federal constitution, constitu
ting them one people for national purposes,
and intended to operate, within its prescribed
sphere, on each individual of every state as
constituent members of the same body politic,
Here arise, complexity; and hence the entire
system has been, not inaptly, denominated
imperium in imperio.
The principles announced in our Declara
tion of Independence constitute the founda
tions of all of our constitutions, state and fed
eral. They were aH made by the people, who alone
can alter or abolish consistently with constitu
tional right. They a distributo the functions o
government into three depai^tmeuts — legisla
tive, judiciary, and exectutive — define and
allot to each departinent sepcrate powers, and
provide for the relative independedce and
counteraction, when proper, of each of the
three distinct bodies of magistracy. These
are modern contrivances, and great confidence
in their efficacy in the preservation of free
and popular institutions, has been felt and ex
pressed in the new cis-atlantic world.
The states are entitled to exclusive sovereigiiT
ty respecting all things of exclusively state
concern. The federal governfnent is entitled
to exclusive sovereignty as to every thing of
federal or national bearing or concern, and, in
the event of a conflict bet'w;een federal and lo
cal authority, the constitution of the United
States, and all laws and treaties made pursuant
thereto, are declared to be supreme, any thing
in any stale enactment, or .state constilution to
the contraiy notwithstanding.
Tho federal constilution, like those of the
states, is popular in its origin, popular in its
character, and populai', or national it its opera-
lion. It is not, like fhc Amphyictionic, Achaicn
Helvetic, or Germanic confederacies, a mere
league or treaty between sovereign and inde
pendent states, which can be enforced only by-
war. But itis a form of national government
— it is a law; and, of course, a supreme law
for all tho states, and for the people of all tho
states. The inefficiency and unsuitablcui'ss of
a mere confederation of the st.ates had been
demonstrated by the experiment which had
just been made ofthe articles of confedera
tion, already in a state of virtual dissolution.
The war of the revolution had scarcely been
closed when collisions and jealousies began to

disturb the harmony of the stateis. The pow
ers which had been delegatedto Congress were
found tobe altogether inadequate; 1st. because
they Avere loo circumscribed; Snd. because the
acts of the federal authorities could not be en
forced by federal power, but depended, ' for
their execution, on the ¦w'ill of each state.
These radical defects evinced tbe necessity of
a general government with some national au
thority, or with plenary and supreme power,
to effectuate national objects or general ends
common to the states, by operatijig directly on
persons instead of states. That this was the '
great purpose of those who recommended aiid
of those who adopted the federal constitution,
no one, acquainted with contemporaiieoiis his,-
tory, can doubt, That which waS recommend
ed and adopted, was not called a treaty, or
league, or compact, or articles of confedera
tion between sovereigns, but was appropriately
characterized as a constitution or form of gov
ernment for the United States. And it exhib
its, on its face, all the qualities which entitle
it to that character, and which will allow no
other to be ascribed to it. Is it not law? Su
preme law? Are not all treaties and acts of
Congress, which are authorized by it, laws —
supreme laws ? Then no ground remains for
doubt or cavil. And whether it be called a
compactor a constitution is immaterial; for,
whatever it may be, it operates on all the peo
ple of all the states, personally and directly,
and with an authority superior to all other
political power.
Could it not thus operate, and had not the
general government power to make it so operate
even against the will of any state, it would
be but little, if at all, better than the articles
of confedei'ation, and would be nothing like
a constitution or fundamental law. "lloreover,
the people, and not the state authorities, adopt
ed it. The states, in their poUtical capacity,
had no power to adopt it. The pebple of each
state, in their prinieval sovereignty, had a
right, and the only right, to modify their local
government; and they, and only they, have
done so. They have taken from "their respec
tive state authorities such powers as were
deemed necessary for effectuating the common
interest of Ihe whole, and have deposited
them in the hands of agents chosen chieflyby
themselves andj'esponsible to no other tribu
nal. The federal constitution is as much the
constitution of all the people of every state in
thc Union, as the local government of each
stale is the peculiar government of every citi
zen of that state; ancl the functionaries of the
general government are, tliereforc, as much
the representatives of tlie people of all the
states, as the officers of any .^tate government
are the organs of the people of the state. Then
the origin, nature and objects of the federal
constitution would be suflicient to prove— had
there been no such e.vprcss declaration by the
people in convention — that it must possess an
authority paramount to that of any state con
stitution, or state leg:islature; and that, being
law, it must have a sanction, and may be en
forced by those whom the people of the United

THE CHAPEL OF MORRISON COLLEGE.

179

States select for administrating their national
affairs. Aud it is but a necessary corollary
from this conclusion that, s,, far us the gener
al governiueut has power, it is sovereign, and
is, until its powers are revoked — the only sov
ereign to the extent of its exclusive authority.
And, to this extent, the individual states can
not be sovereign, bocan^e, so, far, thoy have no
constitutional power. Each state is, however,
in one sense, a sovereign — it is sovereign to
the extent of its local power, and exclusively
local interests. Sovereignty being tho highest
pqwer ill a state, the general government must
be the only sovereign wilhin its prescribed
sphere, and each state in the Union must be
the only sovereign' within the scope of its res-
iduaiy power. We speak of course, of politi
cal sovereignty. God and the people, arc the
only actual sovereigns according to the Amer
ican creed. If thc individual states possess
s,i extensive and uuqualified sove'reignty or
|iolirical power a.^ they did before the adop
tion of tlie federal constitution there is no
general government — for there can li" no gov-
I'rriment without inherent power lo goA-ern;
.¦md CDnseqiioutly, if thc people of the states
are alsn citizens of the United States, and
havi," a general tjoveruinciit. they must lio.ve
made that goveninient by impartin.;j to it pow
ers which must necessarily have beeu sub-
duc'.eJ from tln' original pnwers nf the local
g'overBments. To the Suprem.j Co^.irt of the United Slates
hasbeen delegated the ultimate decision of ju
dicial questions arising under the constitution,
la'ws, and treaties of the United Slntc-;; and
the settled adjudications of that Iribunfil, in
all ca^i's in which it has jurisdiction, must,
therefore, Ido r.iiivers;iUy anthoTit,T.tive and con
clusive. Thciugh no couri, compojed uf m.-jre men,
can be infallible, and though, therefore, the
Supr'erne Court of the I 'nited States may err,
and doubtless has erred more than once, still,
kU thing's fully and .rightly considered, no
more fit or FatV- dcpa~.itnry of thio ultimate
power of judicial decision could liave been se-
lectect. The judges are responsible, like all
otlior official aijents of trie people of the Tni-
ted fta'c'', to their constiuients: and thai re
sponsibility is one of the many i;uarantic'S .>f
their fidelity and rectitude. Hitherto, the
judges of that Court hare been generally dis
tinguished for personal integrity and for judi-

und might justly
th" Rosciu'l

claim jud^'l'

th

of

L'ial learniii
iributo oiTered
England;
¦•Each judge was true and .iteady Id his trust,
As jM.>.:':sFii:Ln wise — as oi.n Fosri::: jw.^/."
All the chief-jvislices of the Supremo Court,
.lay, ;ind Ellsv.'orth, ond Rutledgi-, and Mar^
shall, were men of eminent talent andservifcs.
And the late Chief Justice Marshall did more
to exalt, the character of the American bench,
and to illustrate fhefedcr.il constitution, than
anv oilier American citixen. He was more
than the Lord Coke?, nwl the Lord Bacons,
and the Lord Hardwickes of England— he

was thc "John Marshall of America;" a title
full of honor — another and an immortal name
for vigor of mind, purity of heart, moderation
of temper, simplicity of character, and firm
ness of purpose. May the universal grief
nianifested at his death be the most costly of
fering his country sh.iU ever be called to make
¦athis hallowed shrine. May the remembrance
qf hi=; virtues, like that of Washington's, in
spire a sacred respect for justice and a pious
veneration for the constitution of hismanhdod
and his tomb — and may that constitution live
as long, as pure, and as fresh as the memory
of ils chief founder and builder — Washington
and Marshall.
Thefederal constitution, popular in its or
igin, partly federative and partly national in
its ciiaracter, and altogether national in it's op
eration, has constructed a general government
of delegated powers. Each state government
possesses inhereiit poAver; restrained only by
the Laws of nature and'the inhibitions of its
own and of the federal constitution. But the
gener<il governmenthasno power, except such
as the peoplehavc expressly delegated, or such
as may be necessary and proper for effectua
ting the express powers. Certain great ends
were contemplated by those who adopted this
constitution, and, lo accomplish those ends,
they have expressly delegated to the general
government specfic jiowers, and also have de
clared, through abund.mt caution, that it shall
possess all other powers, that shall be "neces
sary and proper" to carry into full effect the
enimierated po^wers. Without this precaution-
arv declaration, implied or incidental powers
would have necessarily resulted from the grant
of c:;press powsrs — for it is an axiom of rea
son and a principle of universal law, that,
v,-heii a power is expressly granted to do a
thing, or a right, is given, aU subsidiary powers
necessan- for doing the thing or enjoying the
ritflit, and which are not forbidden, are, by
necessary implication, also granted. But
these implied powers must bo both necessary
and proper. When .1 mean is adapted to an
end designated by the constitution or contem
plated by its founders, it if,, in the political
sense, necessary. Many different means may
be, and gcnorally arc, well adapted to the same
end, and cithei of them may be selected; for
no one of them can be said to be indispensa-
sable as long as there is another which is fit
ting, and which might answer the same pur
pose or effect the same end. .Viid, therefore,
jt is evident that "necessary" in the constitu
tion, or when spoken Of in reference to im
plied or subsidiary power, does not mean in
dispensably necessary, or that without which
alone the designated end could not be accom
plished — but imports, a.s has been authorita
tively settled, that whichis eligible and has a
clear relation, or is conducive to the end. But
the mean, however adaptable fo the end, or in
other words, "necyssary," must also be "pro
per" — that is, not merely that which may be
expedient  for that would convict the
convention of redundance ahd tautology, and
would confound expediency ajid power,— but

180

INTRODUCTORY LECTURE, DELIVERED IN

that which is not prohibited by the constitu
tion, or by thelaws of nature. But, as what
means may be "necessary and propei'" for ef
fectuating express powers and what powers
have been reserved to the states or the peo
ple, may be matter of doubt, collisions be
tween federal and state authorities maybe ex
pected to occur^as thoy havehitherto frequent
ly occurred. A mutual temper of forbearance
and respect should be displayed in such deli
cate and irritating contingencies. And the
fact that both governments equally belong to
the same people, one acting for a part and the
other for the whole, should surely inspire a
just confidence and a becoming spirit of liber
ality. But if, in an extreme case, there must
be an umpire, the federal constitution, as long
as it shall remain unrevoked and unmodified
by the' proper authority, and eitheriu the mode
prescribed by itself or by revolution, must fur
nish the only lawful mea,nsof authoritive ad
justment. Whether in this now and complex system
of government, there is greater danger of dis
union or of consolidation is a question con
cerning which wise and honest men have
differed in opinion ever since the federal con
stitution was first proposed for adoption.
General Washington, considering the more in
teresting and domestic character of the mass
of state powers, and the influence of local
pride, and interests, and attachments, enter
tained the opinion that the natu r.al tendency
.of the system would be centrifugal rather than
Centripetal, Aud such would seem to be the
more rational deduction from a sober and en
lightened survey of the whole subject, in aU
its ramifications, unless a prostituted press
aud a perverted executive patronage should
break the moral ligaments that bind the people
tothe states. Without military force, these
are the most efficient means of politicil or
practical consolidation. — They are thc,Lernaen
monster and the lion of Wemca, which Her
culean efforts alone can overcome. — Should
they ever threaten the integrity of the consti
tution or the liberties of the conntry, gener
al intelligence and virtue can alone secure the
rescue of the people. Tolitical barriers pos
sess their efficacy, which is great aud, for oc
casional and ordinary emergencies, may be
sufficient. But their chief value consists in
their tendency to prevent mischief from a
transient delusimi or popular effervescence.
The integrity and intelligence and patriotism
of tho body of the people arc the surest con
servative principles, and the only ones which
can finaUy save the people from their common
enemy— deceitful demagogues— who live and
move and have their being in popular credu
lity, prejudice and ignorance, and who have
ever been thc cankers of every popular Gov
ernment which has failed ou earth. The
agents of the people will b,. but seldom, if
ever, honest or c.apHblc, unless the people
themselves are s.i; nor can Jiistic! and securitv
long survive the loss of public virtue and tjeu-
eral intiUigencc. Political expedients iuav
save tor a season until tlie people have timeto

think and to act soberly; but a people inca
pable of thus thinking- and acting, when suf
ficient time is allowed them, are incapable of
self-government."He is a freeman whom the truth makes free.
And all are slaves besides."
Our institutions are founded on the assump
tion that the mass of our population are honest
and intelligent; and, that hypothesis being
faiip, our governments are wisely constructed
and may last: but if it be false, or should oyer
cease to be true, passion and not principle,
power and not right, will nile, and thepoeple
will, in fact, be slaves. The form of govern
ment, whatever it may be, will then beimma-
terial — and it was in this view that Pope said:
"For forms of government let fools contest.
That which is best administered, is best."
If applied to an ignorant or vicious people,
there is almost as much truth in the sentiment
as poetry in the phrase.
The actual governmentwill correspond with
the character of the people and the spiritof the
times. But when the majority are virtuou,?
and enlightened, wise disti-ibutions of power
and tbe adoption of proper fundamental prin
ciples of free government, such as those which
characterize the Anglo- American constitutions,
are not only useful, but indespensable as safe
guards of liberty and justice in transient sea
sons of popular excitement or delusion; and
therefore, in such it community, the form of
government is important, and such coustitu
tions as ours, seem to be, not only eligible,
but the best. How long they will continue
to bo so, will depend on how long the .peo
ple .are .ible to think rightly and actjiistly
for themselves. Whilst they possess thfs
capacity, our constitution w'ill deserve all
confidence and all praise. But if the people
become ignorant or corrupt, then we may say
in sober truth — "for forms of government let
fools contest" — for whatever the form may be,
the substance will be despotism— either raob-
ocratic, oUgarchie, aristocratic, or soUtary;and
among these. Out too common actual govern*
ments— "that which is best administered is
best." Itwasthe ma.xira of a wise politician and
is doubtless triir, "that when the body of the
people is not corrupted, tumults and disorders
do uo harih; .and where it is corrupted, good
laws do no good."
But it is the natural tendency of free and
equal civil institutions to liberalize and elevate
the human character; and thus it is that such
institution possess inherently a conservative
principle, Avhich, by au indirect and reflex op-
ei'iitiou,may have a progressive influence in
their preservation and improvement.
Municipal law is that which defines and
regulates the civil rights and duties of the in
dividual members of the bodv politic, or na
tion or state; and is divisible "into statute law,
the common laAv, and "thc civil law" or ele-
nient.s ef lloman jurisprudence. In this land
of Avi'itton constitutions and limited govern
ment, there is no such thing as an authorita-

THE CHAPEL OP MORRISON COLLEGE.

181

tiye plebeacite, senatus consuliuvi, imperial re
script, or responsum predentum.
The common law, as modified by our stat
utes and by the ,spirit of the age, and of, our
our institutions — the civil law, as partially in
troduced by judicial recognitions and applica
tions of some of ite more enlightened and con
genial principles — ojeneral statutes of England
which have been adopted hero, and such en-
actmeuts of the national and local legislatures
as are consistent with constitutional princi
pies— constitute the only authoritative muni
cipal code of this country.
The common law is an unwritten code of
mahired reason, of obscure origin in times of
OTeat antiquity, inthe north of Europe and in
England — the offspring chiefly of the feudal
system^— the companion and friend of civil
liberty, stiengthened by age, and improved
and improving with the progress of civiliza
tion and of human knowledge. It is found
only in the reports of adjudged cases, in ele
mentary law books, and in the enlightened
judgment of mankind. It is practical reason,
rectified and recognized by the experience of
ages, and modified by analogies and by chang
ing circumstances.
This general aud imperfect definition may
be sufficient to show why the quality of malia-
bility has been ascribed to the copamon law;
and which is one of the principle constituents
of its great aud peculiar value. To undorr
stand it well as a branch of science, it is ne
cessary te read attentively and thoroughly, not
only numerous law books, but also, the feudal,
politicaland judicial history of England; and,
to know how to apply it in this country, the
lawyer and the judge should understand our
own peculiar institutions and policy. In
England, the common law has been applied
inflexibly t© real estate, or immovable proper
ty. But, in regard to personal or moveable
property, personal contracts and equitable ju
risprudence, the doctrines of the civil law, by
gradual judicial interpolations, has obtained
a considerable influence and prevalence; and,
to this extent, no code of human law was ever
more enUghtened % liberal than that of the
civillaw, as embodRd by Justinian, and since
modified and improved.
The common law is the basis of the civil
polity of all the states of this Union— except
ing only Louisiana, which has adopted the
civil law — and regulates most of the private
righte and domestic relations of those states in
which it prevails. The established rules of
pleading in suits, in courts where the common
law prevails, constitute a rational and beauti
ful science, perfectly simple when well under
stood, though extremely vexatious and embar
rassing to those whose acquaintance with them
is only superficial.
Equitable jurisprudence, transplanted from
the civil law, has been engrafted upon the
common law, and, having grown with its
o-rowth, and strengthened with its strength, has
already produced a blended symmetry and har
mony, which a new and simple ' production of
no age could ever possess. The separate

jurisdiction of the courts of equity, di
vided into three branches — exclusive, concur
rent, and auxiliary — is an interesting anoma
ly, peculiar to the common law, originating
cniefly from the hyper-technicality of the an
cient common law courts, and from the per
tinacity with which they, in defiance of the
increasing liberality and light of the improv
ing worid around them, adhered to tho com
paratively rough and unyielding feudal doc
trines of the more ancient common law. The
history of equity is full of interest; but this
is not a fit occasion for even an outline. Wo
shall barely observe, that, though the chan
cellor of England had originally no equitable
jurisdiction, but acted only as the representa
tive of the king, in the cancellation of letters
patent, in the superintendency of infants, id
iots and lunatics, and in the hearing of petitions
— all of which were common law prerogatives
of the crown, as parens patria; and though, for
sometime after the chancellor had aiTogated
the powers of acourtof equity, and oven since
the day of Woolsey, his decisions were regu
lated by his own arbitrary discretion only;
nevertheless, since the controversy between
Chancellor EUesmere and Lord Chief Justice
Coke, thc Nottingham's and Hardwick's, and
the Thurlow's aud Eldon's of England, and
the Kent's of America, have harmonized the
principles of equity, and made them as cer
tain, as perfect, and as authoritative, as those
of almost any other science. Now, the chief,
and almost the only difference between a court
of equity, and a court of law, is merely modal;
that is, a difference m the mode of suit, iu the
mode of proof, in the mode of trial, and in the
mode of relief. In both courts, the same con
struction is now given to laws, and to con
tracts, and both are equally bound by au
thority, and by fixed rules and principles.
IBut in consequense of the modal differences
which have beeu suggested, a court of equity
may, in many cases, such as those of fraud,
trust, accident, the specific permormance of
contracts, ic, be more able than a court of
law to reach the full measure of justice and
give adequate and perfect relief. And courts
of equity have also, to a greater extent than
courts of law, in some classes of cases, and es
pecially in respect to trusts, and the marital
relation, and its incidental rights and obliga
tions, adopted many of the more approved
principles ef the civil law.
A court of equity here has not all the power
of the Chancellor of England; it possesses
only his equitable jurisdiction, with some
statutory modifications and enlargements. Al
though courts of law might, with propriety,
proceed according to the modes prescribed in
courts of equity, yet, untU they shaU feel au
thorized to do so, equity wiU remain adisfanct
branch of jurisprudence. There is no good
methodical treatise on the principles of equity;
and, therefore, that branch of law is not so
generally, nor so easily understood as other
departments of the positive law; but it is
equaUy simple and scientific, and when weU
understood, equally plain and elementary. Its

182

INTRODUCTORY LECTURE, DELIVERED IN

main foundations are the immutable principles
of universal justice; and its history and' pre-
selvt state, and its benign influence urioii gen
eral juri^jirudeUce. present a most illustrious
example of an adventurous, but beneficial, ju
dicial legislation, sustained by the gradually
increasing Ijght of civil and religious liberty,
and by the various promptings of social and
commercial prosperity.
The civil law Of Rome has, in a grpat* or
less degree, been interAvoven Avith the body of
the legal codes, as the language of Rome has
been mixed AviUi the modern tongues, of most
of the nations of the continent of Europe.
Aud thus tho prostrate city of the Coss,irs still
lives and reigns, and Avill long live and reig-n,
over a moral empire more extensive than the
imperial domain of the deified Augustus.
And, though the civil code is not authoritative.
here, nevertheless, as it has furnished princi
ples A\'hich havebeen embodied into our, equit
able jurisprudence and' our commercial laAV,
and, in some degree, into, our laAVs respecting
legacies and distribu.tions, and other la'ws re
lating to personal property and personal con
tracts — every American, jurist should beac-
quainted with its elements and general spirit.
It is, iu some respects, an admirable system,
not only unsurpassed, but, unequalled.' And
no man altogether unacquainted with its prin
ciples can Ije a scientific laAvyfrr, or enligliteri-
ecl jurist. Thc common law. not only has
been greatly improved by a commixture Avith
the civil law, bu't is yet susceptible of still
more improvement by trie same process. Our
institutions and habtis of trious>rit and of ac
tion designato thc United States as the theatre
(in Avliicri the common laAv is destined to at
tain its greatest ultimate perfection, Avrieu the
gray-headed mother, England, will learn juris
prudence from lier young daughter, STortri
America, as she even now begins to learn some
otherthings wriicli matei^nal pride lias not ac
knowledged. This very imperfect sketch of an equally
imperfect analysis of liiAV maybe sufficient to
give some faint conception ofthcA^ast exloiit
of ils doniaii,, andto prove also, tjiat it is
eminently entilled to a conspicuous place
amongtlio useful sciences.' In its vast and
almost'interminuble periphery,' it embraces all
trie .iflinities of matter and all trie syrapaliios
and aptitudes of mind— it defines and' regu
lates, and guards all tlie relations of man,
social and civil. It protucts trie Aveak nnd
controls trii: strong'; il, ,i_4ives conridence to in
nocence, and alarm Up i.,'uilt; it ix the poor
man's eartrily prop, trii- rich man'-i surest ram
part; thc ATidow's ehiintpion; the orplian's
friend and guidu; ii regards and upiiolda all
trialis ino^l intorest,iii;i; or' t'lideariag ort eartri,
and places mankind in a condition lo aspire lo
trieir higliand noble destiny, and to occupy
their proper plate in Iriecreated universe, ^o
rinman science is so extensive in its range, or
I'lnbraces, Avithin i!s scope, so many und such
iiiteroRtingobjecti; aud relations. Witiiout uni
versal law; the Avorld Avould be a A^ast ruin;
AVitriout rational law, nations would be enemies

land pirates ; without municipal law, men would
jbo beasts of prey, and womta trieir victims;—
junless by trie universal prevalence of true re
ligious princi|des, a trieocraey srijuld super
sede all human institutions, arid govern all
human "conduct. Ppsitivelaw is not aperfect
science, because nothing partaking of human
frailty can be perfect,. All positive laAvhas
some anomalies, and in some particulars fnay
be altogether arbitrary and irrational. But-, as
a whole, it is founded oil eternal principles of
fitness, and is susceptible ef infinite cxtensioii
by analogy arid induotion, Ii is intimately
associated with aU other sciences, and has
some connection Avith every branch of human
knowledge. Wilhout it,no other science'could
exist, or be useful; and no one, whose rnind is
not illumined and' invigorated- by \general
knowledge, can over understand civil juris
prudence thoroughly, or perceive all its har
monies arid beauties, as a comprehensive and
practical .system of truth — of pre-eminent utiri
ity, unsurpassed excellence, and-'indefinite ex
pansibility. Among trie lirany wonderful advances
which have beeu made, during the last fifty
years, in knoAvledge, practical and Specula*
tive, tlie improvements in jurisprudence have
been conspicuous. Europe has already be
gun to exhibit some practical acquaintance
Avitli trie true principles of legislative philoso-
pliy ; and even in England, trie common law,
feeling trie renoA'ating spirit of the'age, is be
coming more and more malliable, and is ex
changing ils old fashioned and unseemlv cos
tume for a more modern and befitting drapery.
Sound priilosopriy is operating on jurispni-
derice tis beneficially .is on any other depart
ment of knoAA'ledgc," and has much yettodo
in the progressive improA-emont of a science so
compreheilsive and complex. But, asldng'as
human laAVs are necessary, and AvhercA'er civ
il liberty prevails, simplicity can never be one
of trie attributes of jtirrisprudence. Much.
good may, and doubtless will, be done by re
daction; but .simple and perfect modification is
hopeless and visionary. Simplified to therit-
inost extent ivhicri prudentfe or safety Avould
alloAv, the science of laA^inust nevertheless
still continue to be, as it tIoav is. thougji in a
less degree, comparatively intricate and ex
tensive; and it can uover'be thoroughly un
derstood, Avithout laborious and protracted
study, and extraordinary A'igor, and perspi
cacity, and cultivation of mind. -
Wiso institutions, and a stable audjusf ad
ministration oftriolaAv, ave some of tliecohtri-
butious Avhicri minds euligrliiened in trie sci
ence of jurisprudence ha've rondo, and which
such minds can alone make, in all time, tothe
Avclfare of mankind. It is tu such minds that
society is indebted for trio confidence, securi
ty, and peace Avitli Avriich it mav be blessed
by good govcrnniput and wriolesome' laAA',s
jus'tly administered. A'irtuous and enlight
ened jurists are the peculiar guardians of the
commouATcaltli, because law is trie panoply of
all that is most crierisried and endearing
^among men. Without good laAt^s, honestlv

THE CHAPEL OP MORRlSoN COLLEGE.

18S

administered, there could bo no securitv for
life, liberty, reputation or property. LAW
and RIGHT are the body and soiil of civil
liberty. Civil jurisprudence is illustrated by a long,
roll of honored names — the names of law-giv
ers and jurists , in different countries and ages,
admired for pre-eminent talents, and ever to
be revered as heuefactors of mankind. And,.
on its broad escutcheon, AVe see, beaming Avith
a chaste and hallowed light, the names of
Cicero, of Solon, of Daggessau, of Pothier, of
Grotius, of "S'attel, of Littleton, of Cote, of
Bacon, of Hale, of Mansfield, of Blackstono', of
Erskine, of Adams, of Jefferson, of Jay, of
Boyle, of Marshall — and a'multitudo of oth
ers, equally, oi- almost as much, distinguished
botii in the old and in the new worlds — all of
them men unsurpassed in intelUgence and
usefulness, by any equal number, in any oth-'
er department of knowledge, or sphere of ac
tion. And our own brief history is embla
zoned with the names of distinguished ju
rists, without whose eiUightened counsel our
liberties cpuld never have been established,
nor our free institutions consb'ucted or main
tained. A chaste and m'elloAf light shines
around the names of John Adams, Thomas
Jefferson, John Jay, Roger Shei-man, Patrick
Henry, Alexandei' Hamilton, and a host of
other eminent and patriotic laAvyers— -the
light Of whose intelligence, the fire of whose
patriotism, and the burning eloquence of
whose pens and whose tongues cheered and,
guided their (desponding countrymen, in their
darlj and perilous pathway, to constitutional
liberty and law." Then may we not conclude
that jurisprudence is a noble soience, and that
a virtuousjand enlightened jurist is an orna
ment and an honor to his race?
Our's being emphatically governments of
laws, and our liberties and ' rights depending,
as they xlb; on the wisdom and efficacy of con
stitutional and legal guaraatees, there is no
country on earth where a thorough, extensive,
and general knowledge of the elements of en
lightened jurisprudence may be so useful, or
can be so indispensable to the welfare of men,
and the stability and authority of just and
equal institutions., The supremacy of good
laws will ever save us; the predominancy of
passion, or of rank, or of ambition, aviU de
stroy the only shield of our rights:
It is strange that a science of such extent
and'importance — so intimately associated With
all that is interesting to social man on earth, '
so exalted in dignity, so purifying and enno
bling in tendency, arid so Universal in its in
fluence on all civilized men, in every relation,
and under eA'ery circumstance, should riot
have generally been made a brAnch of acade
mical education, and been taught. Avhere other
sciences are usually learned. Every free man,
in a free state, should be acquainted with the
elements of general jurisprudence, and with
the spirit and character of the peculiar insti
tutions of his own country. Such elemeutary
knowledge may be acquired in the course of
ordinary scholastic education; and, in these

states, a knoAvledgc of at least our own funda
mental laAvs, sliould bo deemed indispensable
to every citizen, and should, of cou'i'sc, be
taught in every ooninioii scho(ol.
'But it is p'eculiarly in^portant that those
who are destined for the bar, tho bench, or the
hall of legislation, should be thoroughly im
bued with that kind of knowledge which is
founded on the elements of a virtuous and en
lightened philosophy, aad to the proper acqui
sition of which, toil, and system, and talents,
and probity, are indispensable. No class of
men eSercise more influence on Society, than
thc professional lawyers. Their predominant
influence is felt in all tho business and
walks I of life, as Well as in the forum, the
leo'islative hall, and the arena of popular pol
itics. How all important then, is it, to the
vital interests of the commonAvealth, that our
lawyers should be irien of enlarged, and lib
eral, and virtuous minds; purified and en
lightened by the moral light of thorough,
general, and, as far as possible, universal sci
ence. Until our western lawyers shall be
thus enlightened, we shall not have among us
many Mansfields, Erskines, Marsh alls, Web-
sters or Clays.
Ignorant or unprincipled laAvyers are among
the- most mischievous nuisances which cau
annoy the peace and disturb the Well-being
of the boiiy politic. But virtuous and en
lightened jurists are a blessing to any people.
Even in the administration of law in courts of
justice, the value of houest and able profes
sional counsel, is almost incalculable; and the
direct and indirect influence of such moral
agency, on public and private rights, and ou
the spirit of litigation, is much greater than is
generally supposed.
A laAvyer is a pettifogger, as a doctor is a
quack, unless he uiiderstands the science of
his profession. Such Scientific knowledge is
not as common among the professional men of
this great valley of the west, as the best inter
ests of the people and of science require that
it should be. Thorough and systematic ele
mentary education is important, and will be
soon seen to be indispensable. Such an edu
cation can but seldom, if ever, be expected iu
the common course of reading in a lawyer's
office. This has bi3on felt and acknowleijged,
even in England, Avhere the training of young
men for trie bar is more seA'ere and systematic,
in the offices and inns of court, than it has
generally been in this country. We find the
following language in theinti-oductoij lecture
of Mr. Park, professor of English law and ju
risprudence in trie King's college, London:
"Few things will bear less looking into than
the system of ""legal education hitherto pre
vailing — and if the public at large could see
it in its real nakedness, common sense and
safety would alike dictate that such culpable
neglect should no longer be permitted to in
sult society, and set at naught the deep inter
ests that are at stakb in the proficiency of
those who offer themselves to the public as le
gal practitioners. A great number of young
imen are annually let loose upon the public,

184

INTRODUCTORY LECTURE, DELIVERED IN

calling themselves solicitors, and barristers,
and conveyancers, and having personal claims
upon many to be intrusted with their busi
ness, who have given no other security to the
public, for their having qualified themselves
tor a most important aud arduous profession,
than that of having paid a certain sum of
money for articles of clerkship, or having pur
chased the name of pupil in the chambers of
some practitioner. Upon the jiresent system,
scarcely one in every five, has a single chance
of attaining that proficiency that would enable
him to keep practice, even should he be so for
tunate as to obtain it." But even more may
be said of the common defects in the usual
course of legal education in this country.
Here, where there are, much to our discredit
and disadvantage, but few scientific lawyers,
young men of ordinary capacities, without the
advantage of preparatory education, read a
few books, selected either by themselves or by
the advice of some. practising attorney, and, in
a few months or weeks, without any system
atic instmction or general examinations, and
before it is possible they can have learned the
A B C of jurisprudence as a science, obtain
licenses and offer themselves as learned coun
sellors, in one of the highest, most important,
and most difficult of the learned professions.
What can be the consequence of such a course,
but great mischief to society, and the Unjust
degradation of the law, and of jurisconsults,
as a professional class? And hence, the juris
prudence of the west has not obtained that
exalted rank which the general character and
prospective influence ofthe Mississippi valley
would seem to indicate.
The law must be considered as a science of
infinite amplitude aud importance, and must
be taught; and studied, like other sciences,
with a system, an interest, and a patience,
corresponding with its magnitude, utility, and
destiny. This cannot be done in any other
mode. So certainly and effectually, as iu regu
larly organized schools, where system and
science prevail.
Prior to the institution of the Viiierian pro
fessorship at Oxford in England, law was con
sidered but! a rude art, to be acquired — in the
language of Thomas Wood, who wrote his In
stitutes, about the year 1725 — "by a long at
tendance on the highest courts of justice, and
by a tedious Avandering about" — and contain
ing "a heap of good learning, which he hoped
it would uot be impossible to assort, and put
into some order." But under the auspices of
an university, where science was taught,
Blackstono, who AA'as the first Vineriau pro
fessor, reduced the laAvs of England to the
system and order of a beautiful science. And
since the publication of his lectures, under the
title of commentaries, even positive law has
been justly deemed a science, and has been
AvonderfuUy simplified and improved. Those
commentaries have themselves been pro
nounced by Sir Wm. Jones, in his admirable
Treatise on Bailment, to be "the most correct
and beautiful outline that was ever exhibited
of any human science." But they exhibited

only the outline of a vast and cultivated terri
tory of judicial science. Aud it was under
the like auspices and circumstances, that the
simUar work of Chancellor Kent of America
was produced — a work that will be an useful
cynosure to the American student.
Moreover, it is kno^wn, that the civil law
was introduced and taught, in the universities
of England, by the clerical professors; arid
Hume, in the 23d chapter of his history of
England, has said truly, that it was by this
means, thatthe common law was "raised from
its original state of rudeness and imperfec
tion." And why should not jurisprudence he
taught as other sciences are taught? "To dis
incorporate any particular science from gen
eral knowledge, is one great impediment to
its advancement; for there is -a supply of light
and information, which the particulars and in
stances of one science yield and present for
the framing and correcting the axioms of an
other science in their very truth and notion; for
each particular science has a dependence upon
universal knowledge, to be augimented and
rectified by the superior light thereof." This
was, the opinion andlanguage of Lord Bacon,
who did as much for .science as any man ¦^vho
ever lived. And his opinion has been eon-
firmed by experience; for wherever law has
been taught as a branch of scholastic educa
tion , it has been more scientifically and per
fectly learned, and has been "augmented and
rectified by the superior light of universal
knowledge." The pupil derives many and obvious advjin-
tages from studying' law systematically in a
public inatitution of learning. In such an in
stitution, judiciously and faithfully conducted,
he wastes no time or toil in unprofitable read
ing. The best text books are selected for him;
he is led on, day by day and step by step, from
the more simple elements to the abstruse and
subtle doctrines of law; his path is illumina
ted and progress facilitated, oy frequent pro
fessional examinations, illustrations and lec
tures; by Avhich, obscurities are cleared away,
absurdities and incongruities satisfectorily ex
plained, and all the doctrines and authorities
gleaned by the professor, from all his legal
reading and research, are brought, at once, in
telligibly to the understanding; and this last
alone must be felt to be a circumstance of
great utility, Avhen it is recoUccted, that all
this professional knowledge is to be obtained
from hundreds of volumes of books, and can
be acquired only by the study and practice of
years. In addition to these, and otherpeculiar
advantages which we shall not enumerate, an
other, .and not flie least, is the industry and
emulation that will be excited by an associa
tion of young men of talents in the same class,
pursuing the same studies togetlier, and all
candidates for the honors of the same institu
tion of learning. And, although the knowl
edge thus to be imparted, is only elementary
and initiatory, yet Ave believe that, such
kuoAvledge, thus acquired, will lay the only
,broad and. sure foundation for successful pro-

¦ THB CHAPEL OP MORRISON COLLEGE.

185

gress in the science of jurisprudence, Or for
ultimate usefulness, or honorable distinction.
And we trust that the law department of
Transylvania, will never be degraded by its
professors, or its pupils; and may we not be
permitted to hope, that this, our own cherished
AJma Mater may, in all her departments, soon
be resuscitated and, once more, become the
pride of the west? Her fate depends, in no
inconsiderable degree, on the conduct of her
sons. They may reflect honor, and raise her,
or bring shame and sink her, in the opinion of
a scrutinizing public; and none of those who
will be nourished at her breast, will have
more influence on her destinies than the pupils
of her law department. Remember then;
young gentlemen, that, in these academic
halls, you will only be initiated into a bound
less science, and that true professional emi
nence can be attained only by extensive learn
ing, virtuous habits and pure principles. Re
member your obligations to this institution, lo
yourselves, to your friends, to your profession,
and to your country. The habits and princi
ples which may be here acquired, may fix
your characters forever. If it should be your
fortunes to be lawyers, judges or legislators,
remember that knowledge, and much and vari
ous knowledge, will be necessary for the hon
orable discharge of your duties; and may none
of you — whatever or wherever you may be —
ever forget that: "An honest man's the noblest
work of God."
The moral and political influence of the
west is even now sensibly felt, and will soon
become preponderant. This valley of Hope
exhibiting, in its infancy, so much of moral
interest and native moral power, is, we think,
destined, in its maturity, tobe the best theater
ever presented on earth, for the development of
intellectual resource, and for the establishment
of moral and political tkuth. Those who are
shortiy to act upon it, as lawyers, and judges,
24

and legislators, will occupy stations peculiarly
conspicuous and responsible. We believe that,
here the pure vestal light of truth is to shine,
if it is ever to live among men — that here, if
any where, civil liberty is to be established aud
preserved — that here, the decisive moral battle,
noAT evidently commenced, is tobe lost or won,
forages; aud that, in this new world, jurispru
dence is to be brought to its utmost perfection,
and elevated to its true dignity.
The law is the accustomed pathway to po
litical influence and distinction. May those
of you, Avhoae fortune it may be thus to rise,
deserve public confidence. Always vindicato
the 1 aw's just supremacy, and especially defend
the rightful supremacy of the federal constitu
tion and the union and harmony of the states.
Any one, at all acquainted with the history of
that constitution, and with the history and
character of men, must see that, if the existing
Union should ever be.destroyed by dissolution
or consolidation, it will never be re-established.
Even now the safety of the constitution aud
the integrity of the "Union are, in the opinions
of many wise and good men, menaced by the
licentieus spirit of disorganization, and the
factious influence of selfish politicians. Moral
light, and that alone, can surely save — and we
trust that it will be speedily diffused, so gener
ally and effectually, as to rescue and preserve,
in this distinguished land, the principles of
sound morality, pure religion, and enlightened
law. May it be your lot, gentiemen, to be efficient
and useful actors in the eventful scenes that
are coming. May it be your fortune to share
the honors and the blessings of a glorious
triumph for our country and mankind; and
may you so act, here and hereafter, as to reflect
honor on this institution, exhalt the character
1 of the west, and shed lustre on American juris
prudence.

PRELECTION.

Lexington, Nov. 13th, 1836.
To THE Hon. George Robertson,
Sir, — We have the honor of expressing the thanks of the Law
Claas, for the veiy able and appropriate Introductory Lecture delivered by
you in the Chapel of the University, on the 12th inst., and of requesting
a copy of the same for publication.
Having shared the high gratification of hearing your Lecture, we take
great pleasure, in pursuance of their desire, inmakingthis application.
We have the honor to be. with the highest consideration,
Yours, (fee, THOS. A. MARSHALL, Jr.
JOHN TITUS,
A. J. LAFON,
CALEB M. MATHEWS.

Lexington, Nov. 13th, 1836.
GENTLEitfEN, — ^As my late Introductory Lecture was intended for the
benefit of the Law Class of Transylvania, it is at their disposal; and I
am pleased to learn from your polite note of the 13th inst., that it was
deemed satisfactory.
Accept for yourselves and for the class my acknowledgments, for such
a testimony of approbation, and an assurance ofthe perfect good will of
Your and their friend,
G. ROBERTSON.
Messrs. Marshall, Titus, Lafon, and Mathews.

ADDRESS.

Having, in our last Introductory Lecture,
given a A'ery general analysis of the nature of
LAW, and comprehensive classification of its
elements, we shall, iu this address, attempt a
more particular consideration of the most in
teresting branch of American Jurisprudence
— the political organization of the North
American Union. This, also, being limited
by the occasion, Avill necessarilj' be summary
and imperfect, and Avill, therefore, only em
brace an outline of acircmnstribedvieAv ofthe
origin and nature of the Federal Constitution,
and of the only means of preserA'ing unim
paired, and of rendering most effectual, the
peculiar fundamental institutions of our com- '•
mon and much distinguished country.
The lapse of the last eighteen hundred and
thirty-six years, has not been marked by an
event more interesting to mankind, than the
adoption of their national constitution by the
people of the North American States. The
affairs of men, like the phenomena of the
physical Avorld, being controlled by instru
mentalities progressiA'ely developed in the on-
Avard course of an immutable Providence, en
lightened philanthropy looks back ou the
Lutheran Refoi-mation — the invention of the
Printing Press — the discovery of the Magnet's
polarity-— the transatlantic voyage of Colum
bus — the discovery of America — its coloniza
tion — the persecutions Avhich contributed to its
civilization — and the cIa'U Revolution of "76,"
which liberated its northei-n half from the do
minion of European priests and monarchists —
not only as among the causes, pre-ordained
by a Avise and benignant God, for the regener
ation of man, but as pioneers appointed by
Heaven for leading the Avayto flie Ark of civ
il and religious liberty, constructed by the
people of these States, in 1788, forthemselves,
and, as Ave hope, for all posterity. If this
last and best experiment for thc consolidation
of human rights, aud the exaltation of human
destiny, made and still progressing in an age
and in a land most propitious to success, shall,
like all that have gone before it at last fail,
the cause of Democracy must be discredited
and degraded in the opinion of mankind. But
the simple fact that such an experiment has
been tried in such a country and at such a
time, and has so far succeeded, stands before
the admiring AA'orld n pyramid of strength to
the friends of equal rights; and the spangled
banner of our Union, though Avaving yet alone
on its peerless top, encourages all men, of
every country and clime, to aspire, at a pro

per time and iu a becoming maimer, to a re
storation and firm establishment of their long
lost privileges. As long as this tower shall
stand and this flag shall still wave — civil and
and reUgious liberty, Avith all their countiess
blessings, are sure and safe. But let the
American buhvark sink and the American
emblem fall— and Avith them must perish for
a time, if not forever, the dearest rights and
most cherished temporal hopes of christian or
civilized man. Civil and religious liberty are
indissolubly associated. Cue connot exist se
curely, if at all, Avithout the guardian com
panionship of the other.
Until both shall universally prevail, man
can never attain his proper rank in the scale
of being, or his ultimate destiny upon earth.
And looking, Avith either a christian or philo
sophic eye, on the progress of events for ages
past, Ave have some reason for cherishing the
hope that our favored land is the preparatory
theatre, and our civil institutions the initial
means intended by an overruling Providence
for establishing, in all time to come, and for
extending throughout the world, human liber
ty, human happiness, and human glory. The
union and harmony of these confederate States,
and the consequent prevalence of the federal
constitution, are indespensable to the enjoy-
ment and security of our liberty and peace.
Por both reason and history proclaim, as an
axiomatic truth, the political aphorism of our
whole country:— "UNITED Ave stand— DI
VIDED we fall!"
It is under the influence of such sentiments
and such prospects, that Ave feel, in all its
magnitude, the peculiar great comparative im
portance to mankind of the rare and signal
event of adopting the Constitution of tho IJni-
ted States.
The discovery of America Avas among the
most memorable of human events, not be
cause it opened a new theatre for commercial
euterprise and for thc exquisition of fortune
and of fame, biit chiefly because it has led to
other and consequential events already most
interesting, . Avonderful and ennobling: and, of
these, tho federal constitution of '88 is not the
least important. Without this our Declara
tion of Independehce, and the glorious Rev
olution Avhich succeeded it, inight, like similar
agents in fanatical France, have been delu
sive, and have prepared our beloA'ed country,
first for the Avild fury of anarchy and A'^ice,
aud next for a domestic croAvn and tyrant
chains forged by the ambition of some vene-

188

INTBODDCTORY LECT?URE,

rated Chieftain or loving demagogue, and
rivetted by the perverted passions of his de
luded victims. Our colonial fathers of the
revolution, — not contemplating ablolute inde
pendence, but intending only to maintain their,
right, according to the British coustitution, to
exemption from parliamentary taxation Avith
out parliamentary representation, and to re
sist the pretension of Great Britain to supre
macy over them in all cases AA-hatsoever at
tempted to be enforced by the stamp act and
tea duty, — instituted a Congress of representa
tives from tAvelve of the then thirteen colon
ies, for consulting about the common Avelfare.
That Council, called "the Delegates appoint
ed by the good people," and emanating of
course, virtually, though not in every instance,
directly and in form, from the popular Avill,
met, for the first time, in the city of Philadel
phia, on the 4tli of September, 1774, and ex
ercised supreme authority, in the name, and
for the benefit, of all the people of all those
colonies, and not in the name, nor in the be
half, of the colonial governments. Pursuant
to the recommendation of that assembly, a
Congress of delegates chosen by the people of
the tiiirteen United States, as thc former col
onies Avere then for the first time called, and
entrusted by their constituents Avith more def
inite powers of sovereignty, convened at the
same place, in "Carpenter's Hall," in May,
1775; and proceeded to prepare for a defen
sive Avar; and, on the 4th of July, 1776,
adopted the Declaration of Independence in
the name, and by the authority, of "the peo
ple of the United States," and not in the name
nor by the authority of the colonial govei-n-
ments. ' It Avas to put doAA'n those gOA'ernments
and to substitute others according to their oavu
will, that the people of all the thirteen colo
nies united and announced, as their joint act,
the equa rights of man and their deteraiina-
tion to maintain for themselves, to the utter
most, all tho privileges of independence and
self-government. They, alone had a right to
make that announcement — it Avas made by
them and for them alone, and for all equally
and in common, — and Avas nobly maintained
by them, under the panoply of approving
Heaven and the standard of their oAvn union,
in the same cause and for the same end. Thc
Declaration of Independence Avas, therefore,
not only a popular, but a national act — the
Revolutionary Avar Avas equally national — it
Avas carried on under the auspices of the con
tinental Congress until 1781, Avhen the arti
cles of confederation Avere adopted by the 13th
State, Maryland — and the Treaty of 1783 Avas
made Avith the United States, as one nation,
and acknowledged their independence, as one
United Republic. In the mean time each
State had, for itself, established a distinct
government for pui-poses altogether local. But
the general Congress regulated all affairs
common to all as one struggling and' united
community. Thia national council exercised

supreme national sovereignty even to the ex
tremity of delegating, at one time, to General
Washington, dictatorial poAver — and the peo
ple of all the States, ha-ving confided plenary
poAver, not only acquiesced, but never, in any
instance, claimed a right to control the author
ity of the common head, nor ever arrogated a
right to secede or to make a separate peace.
But jealous, as aa'bU of central as of foreign
poAver, and sensible of the importance of de
fining and limiting federal authority, the peo
ple finally adopted the Articles of Confedera
tion Avhich had been prepared, principally by
B. Franklin, as early as 1775, but were not
unanimously ratified until the year 1781. That
foi-m of association Avas also the offspring of
the popular Avill — for, although it AA'as approv
ed, in form, by the respective State Legisla
tures, it derived all its authority from the
sanction of the people — because their repre
sentatives only acted out their Avill and hadno
power to bind them Avithout their consent.
But the Articles of Confederation Avere, in
effect, as Avell as in terms, nothing more than
a treaty betAveen States, each claiming to be
free and altogether independent. Though it
stipulated that each State and the people of
each State should be bomid by the authorized
acts of the federal Congress, iu Avhicli each
State, large or small, had one and but one
A'ote, — 3'et it not only conceded poAver totally
inadequate to the purpose of a superintending,
and coptrolling public authority, and declared
that thc Congress should jjossess no other or
greater pOAvcr than that Avhich Avas expressly
granted — but it neither created nor delegated
any one of the essential faculties of govern
ment — Congress might, to a very circumscrib
ed extent advise, recommend, declare, urge
and entreat — but it could, by its OAvn means
or its OAvn poAvcr, enforce nothing. All its
acts were addressed to the Confederate States,
as independent and absolute sovereigns — they
were not addressed to nor could they directly
operate upon tho individual people or any one
citizen of any oue of the States. And thc
federal functionaries had neither judicial nor
executiA-e authority — each of Avhich is indes
pensable to the existence aud the idea of sov
ereignty or govermncnt.
Government is the body of constituted pub
lic authority possessing the right and the poAV-
er to govern. To govern necessarily includes
not only tho right to prescribe the rule, but
the authority and poAver also to enforce it.
Without both attributes, there is, in fact, uo
regular or established government. To an
nounce the public avUI aud compel the obser
vance of it are the functions of gOA'crumcnt.
The public A\ill cannot be LAW unless the
body politic, AA'hose Avill it is, has a right to
enforce it, against the resisting Avill, of any
citizen, or of any constituent part of the ag
gregate community, ihid, consequently, as
thc articles of' Confederation delegated none
of the cllicient faculties of government, thc

DELIVERED BEFORE THE LAW CLASS.

18>)

Union Avhich they contemplated Avas altogether
federal, depending on tiie aa'IU of each State
for its duration and harmony, and destitute of
any cement or inherent conservative principle
or pOAver Avhatsoevor. Such a union — if union
it could bo called — could not long exist — and
could not exist at all in peace aud concord.
The emphatic history of the short-Uvod con
federacy of the States fui'nishes abundant and
melancholy proof of this truth, in itself al
most self-evident.
As man, hoAvever pure aud Avise, is very
fallible, and as "the heart of man is deceitful
above all things and desperately Avicked," it
is necessary to his own Avelfare, no less than
to the peace and security of his fellow men,
that he should be subject to civil rale and co
ercion. And the unconti^ollable self-AA-ill of
sovereign States is as incompatible AAith the
effectiveness and durability of a federal union
institiited for the common welfare of the
whole, as the natm-al independence of individual
man is, to the prosperity, security, or even
existence of a society of men organized for
the benefit of each and all. In each case
and as much in one as in thc other, the com
mon AvUl and the common interest must pre
vail, and the Avhole must possess sufficient pOAV-
er to control every part — and consequently,
thc law of the AA'hole must be the paramount
laAV for each constituent member. Were not
this self-evident, Ave might find apposite and
unansAverable illustrations of its trath in the
lustory of all mere confederations among sov
ereigns — and especially in that of the Amphyc-
tionic Council — thc Achaean League, Avhioh
approximated more nearly the character of
practical government — the Helvetic, the Ger
manic, and the Belgic Confederacies, also ex
hibiting the semblance of political poAver —
and more especially also, our OAvn Articles of
Confederation, which only delineated the shad-
OAV of a helpless body, without poAver, sub
stance or life.
No dispassionate- and enlightened man, can
contemplate the annals of our confederation
from 1783 to 1788, Avithout feeling a thorough
conviction that, had not a more vital and effi
cient system been substituted for the Articles
of Confederation, consolidation or dissolution,
and consequent despotism, in some of its hydra
forms, would have speedily and certainly fol-
loAved the imbecility, anarchy, jealousy, colU-
sions, and distrusts, which characterized that
short, but most awful and eventful period
Avhich intervened the Treaty of Independence
and the adoption of the Federal Constitution.
And our own warning his tory portrays, in no
false colors, the necessary effects of a natural
cause  the lifelessness of the confederation,
Avithout an inherent spark of vitaUty or prin
ciple of cohesion.
And here we have another and sinking ex
emplification of the aphorism that, iu the in
scrutable dispensations of Providence, the
greatest good not unfrequently arises from that,

which, Avlien it occurred, Avas, in itself, a
grievous evil. For had not the confederation
been altogether nerveless, our present cousti
tution may never havo been adopted; and the
ultimate and probably not remote consequen
ces Avould have been disastrous. But the pal
pable and total inadequacy of an ideal gov
ernment enabled the enlightened and disinter
ested patriots of that day of gloom and des
pair to urge, just before it Avas too late,
successful appeals to the understandings of a
majority of their countrymen of the thirteen
confederate States, in favor of the absolute
necessity of adopting a common Govei-nment,
armed with authority sufficient for preserving
union and domestic order, and for maintaining
the external rights of all the States and of
all the people, as one undivided nation. And
hence that, Avhich Avas cause of mortification
and alarm to our predecessors, may be ground
of joy and gratitude to us.
The confederate Congress had poAver to de
clare Avar, but none to carry it on — poAver to
make treaties, but none to secure the observ
ance of them — poAver to appoint ambassadors
and other diplomatic agents, but none to pay
them one farthing; and to borroAv money, but
none to ensm^e payment. In fine, power to
say, but none to act — a right to declare much,
but no authority to do any thing. And, there
fore, even the treaty acknoAvledging their in
dependence was not executed by 'al} the
States; and Congress, tiiough it made the
treaty, had no poAver to compel the fulfilment
of its stipulations — because nothing that fed
eral authority recommended could be enforced
without the intervention and sanction of ev
ery sovereign State; and whenever any such
recommendation Avas effectuated, it Avas done
by state and not by federal power. If this be
goA'erament it is that kind only Avliich may be
imagined to exist when every citizen of every
State shall, in every instance, think rightly
and act rightly, Avithout the fear or coercion
of civil LaAv; and then no government will be
necessary, or can exist otherAvise than the
oretically and passively.
The necessity Of essential renovation and
even radical re-edification Avas seen and felt
by WASHINGTON and his compatriots—
and the foUoAving sentiments from his halloAV-
ed and oracular pen Avere also theirs:-— "It _ is
indispensable to the happiness of the individ
ual States that there should be lodged some
where, a supreme poAver to regulate and
govern the general concerns of the confederate
republic, without which tho union cannot be
of long duration." "Wliatever measures have
a tendency to dissolve the Union, or contribute
to violate, or lessen the sovereign authority,
ought to be considered hostUe to the liberty
and independence of America, and the authors
of them treated accordingly." And for the
purpose of preserving the liberty of the States,
he recommended, as indispensable,— "An m-

190

INTEODUCTOET LECTtlEB,

dissoluble union of the States under one fed
eral HEAD.
As early as 1781, Pelatiah Webster, in an
able pamphlet, demonstrated the insufficiency
of the articles of confederation, and suggested
a Continental Convention for improving the
ipstrument of , Union. In 1782 Alexander
Hamilton urged the same thing, Avith objects
rather.more explicit. In 1784, Noah Web
ster, in one of his miscellaneous publications,
proposed the adoption of "a new system of
government, Avhich should act, not on the
States, but directly on individuals, and vest in
Congress full poAver to carry its laws into ef
fect." So far as we knoAV this Avas the first
proposition for a sepreme national government
^a constitution of national sovereignty in
stead of a league among sovereigns. But
often afterwards many illustrious citizens urg
ed the same thing. In April 1787, James
Madison, in a letter to Edmond Randolph
said: — "I hold it for a fundamental point that
an individual independence of the States is
utterly irreconcilable Avith the idea of an ag
gregate sovereignty. I tliink, at the same
time, that a consolidation of the States into
one simple republic is not less imattainable
than it would be inexpedient. Let it be tried
then Avhether any middle ground can be taken
¦svhich Avill at once support a due supremacy of
the national authority, and leave iu force the
local authorities, so far as they can be subor-
dinately useful. Let the National Government
be armed Avith positive and complete authority
in all cases where uniform measures are nec
essary, as in trade, &c., &c." This Avas,
probably, the first recorded proposal of a
Constitution of a General Government, na
tional and supreme as to all national interests
and federal also Avitli local supremacy in the
States to the extent of concerns exclusively
affecting each State seperately and alone.
As soon as the Federal Convention Avas
organized, Edmund Randolph, as the selected
organ of the Virginia delegation, submitted
the foUoAving as tlie foundation on AA'hich the
Convention should build:
"1. That a union of the States merely Fed-
oral will not accomplish the objects proposed
by the Articles of Confederation, — namely,
common defence, security of liberty, and gen
eral Avelfare.
"2. That uo treaty or treaties among the
Avhole or part of the States, as individual sov
ereignties, AVould be sufficient.
"3. That a National Government ought
to be established, consisting of a supreme
Legislative, Executive, and judiciary."
For himself, his colleagues, and liis State,
he made an able speech explaining their pur
poses, and vindicating the necessity of a
Government, iu lieu of a League — a National
Government operating supremely on every
citizen of thc United States, instead of a con
federation of State sovereignties, Avithout any
common sovereignty over them — a Government

armed with power in the highest political sense,
and co-extensive Avith the objects and inter
ests of the Union. And, in answer to au en
quiry by one member, and an objection by
another, he and several other members made
concurrent explanations, such as the following:
Governeur Morris explained the distinction
between a Federal Union and a National Su
preme Government — "the former being a mere
compact, resting on the good faith of the par
ties—the latter having a complete and com
pulsive operation. He contended that, iu all
commmuties there must be one supreme poAver,
and one only."
And George Mason, of Virginia, observed,
not only that the confederation Avas deficient
in not providing for coercion and punishment
against delinquent States, but argued very co
gently "that punishment could not, in the na
ture of things, be executed on the States col
lectively; and that therefore such a Govern
ment was necessai^y as could directly operate
on individuals."
Upon such explanations and arguments this
Virginia programme was adopted by an al
most unanimous vote — Connecticut alone vot
ing against it! And the Constitution, as
adopted, is but a proper amplification and wise
organization of the principle thus planted as
the vital germ.
The confederate Congress having, Avithout
success, urged the States to delegate to it
some poAver over the regulation of external
commerce — without some unity and uniform
ity in which tliere could be no union long — the
Legislature of Virginia, in January 1786, at
the instance of James Madison, appointed
commissioners to meet similar representatiA-es
to be appointed in other States, in compUance
Avitli a request previously made by that an
cient CommouAvealth — Avith authority to con
fer respecting the propriety of adopting some
uniform system of commercial regulation.
And accordingly commissioners from NeAv
York, NeAv Jersey, Pennsylvania, Delawai'e,
and Virginia, met at Annapolis in September,
1786 — and recommended a couA'ention of re-
presentatiA'es of all the States ui Philadelphia,
in May, 1787 — "to deA'ise such further provis
ions as shall appear to them necessary to ren
der the Constitutiou of the federal govern
ment adequate to the exigencies of tiie Union."
At tho time thus designated, the representa
tives of tAvelve States— Rhode Island declin
ing—assembled in Philadelphia, and, after
much difiiculty and mutual concession, agreed,
ou the 17tli of September 1787, to recommend
the adoption of the present constitutiou, to
"be laid before the United States in Congress
assembled" and afterAvards to be .submitted to
a convention of Delegates chosen in each
State by the people thereof, under a recom
mendation of their Legislature for their assent
and ratification." And the People in Conven
tion, as the only true sovereigns, Avho had a
right thus to act, did ratify it, aud thereby im-

DELIVERED BEFORE THE LAW CLASS.

191

parted to it all its authority and all its life.
The federal convention, at the close of its
patriotic and eventful deliberations, addressed
to tho people of thc several States, a memor
able communication signed by its president,
George Wushington, containmg among other
sentiments, the following: "It is obviously im
practicable in the federal government of these
States to secure all right of independent sov
ereignty to"each, ivndyet proA-ide for thc inter
est and safety to all. Individuals, entering
into society, must give up a share of liberty
to presen-o the rest. The magnitude of tho
sacrifice must depend, as Avell on situation and
circiunstances, as on the object to be obtain
ed. It is at all times difficult to draAv, with
precision, the line between those rights \vhich
must be surrendered and those wliicii may be
preserved; and, on the present occasion, this
difficult)' Avas increased by a difference among
the several States a*; to their situation, extent,
habits, and particular interests. In all our
deliberations on this subject, A\-e have kept
steadily in our vieAv, that Avhich appears to us
the greatest interest of cverv true American,
the CONSOLIDATION OF OUR UNION,
in Avhich is involved our prosperity, felicity,
safety — perhaps oiir National existence. This
important consideration, seriously and deeply
impressed on- our minds, led each. State in the
Convention to be less rigid on points of infe
rior magnitude than might have been other
wise expected. And thus thc CONSTITU
TION, Avhich Ave noAv present, is the result of
a spirit of amity and of that mutual deference
and concession Avhich the peculiarity of our
poUtical situation rendered indispensable."
After considering tiie report of the convention
Congress resolved unanimously — "that tho
said report, Avith the resolutions and letter
accompanying the same, be transmitted to the
several Legislatures in order to be submitted
to a Conventiou of Delegates chosen in each
State by the PEOPLE thereof, in conformity
to the resolves of the Convention made and
provided in that case." It Avas so submitted
to the people of each State in their original
sovereignty in Convention, and Avas thus rati
fied and adopted, by the constituent body of
each State, as a form of government binding
each State and every citizen of every
State. As each state possessed a separate
local sovereignty, it Avas, of course necessary,
before any portion of that sovereignty could
be transferred to a common repository so as
to establish a general government, that the
people, in their political character as the con
stituents of their several States, should delib
erate and decide, each man for himself, and
the majority of the people of each State for
their OAvn distinct community. And just so
the constitution Avas considered and adopted;
and, therefore, the ratification, though n'eces-
arily federal, Avas also us necessarily popular
and national. Addressed to the people of
each State, aud adopted by the people of each

State — it AVas, Avhen completely ratified, like
tho Declaration of Independence, the joint
and several act of the people of "the United
States," jointly and severally obligatory upon
all the citizens of every State and each citi-
izcu of the United States. In tiieir natural
personal rights thc people made it, and no
other human authority could have made it.
Its authoritative voice is "avc the people of
the United States" — "ordain and establish
thjs Constitution," &c.
Independence Avas declared, not by the sev
eral States, and each for itself, nor by thc
people of each State separately for themselves,
but bj- the people of the United States, coa
lesced spontaneously into one national body.
The revolutionaiy Avar Avas carried on by tho
people of all the States in one united band —
Independence Avas acknOAvledged, not to the
States scA'erallr, but to the United States as
one nation — and the federal constitution avhb
adopted for thc same jVmerican Republic,
styled "the UhirED S'r.vTES." Since the
day on Avhich Independence Avas declared, no
one of the confederate States Avas ever, for
any external purpose, or in thc true and full
sense of national existence, recognized as a
nation. In foreign intercourse and all foreign
relations, they, altogether, constituted but one
nation. And, although, for all the purposes
of local governments, each Stale has ever
been a seperate and independent body politic,
even as to its Co- States, yet, to the extent of
all domestic interests common to them as
confederates, they have never, in true theory,
beeu independent sovereigns — but each has
been only an introgal part of thc common
sovereign — the Avliole united into one consis
tent mass of aggregate authority, AA'ith but one
name, one head, one Avill, and one single body
of co-operating poAvers.
In Chisholm's Exrs. vs. The State of Georgia,
{Ist Pet. Con. Rep. 635.) Chief Justice Jay,
a Statesman and .Jurist of the Revolution,
said: — "Thc rCA'olution, or rathertho Declara
tion of Independence, found thc people al
ready united for general purposes, and, at the
same time, providing for their more domestic
concerns, by State Conventions and other
temporary arrangements. From the crown of
Great Britain, the sovereignty of their country
passed to tho Jjoople of it, — and thirteen sov
ereignties Avore considered as emerging from
the principles of thc revolution, combined by
local convenience and considerations. The
people, nevertheless, continued to consider
themselves, in a national point of view, as one
people; and thoy continued, Avithout interrup
tion, to manage their national concerns ac
cordingly. In Penhallow, vs. Doane, (1st Pet. Con. Rep.
21.) Justice Patterson, an eminent cotempo-
rary pubUcist, used the folloAving language:-
" The danger being iminent and common, it
became necessary for the people or colonies
to coalesce end act in concert, in order to di-.

193

INTRODUCTORT ADDRESS,

vert the gathering storm. They accordingly
grew into union, and formed one great politi
cal body, of Avhich Congress Avas the directing
principle and soul," "The truth is, th.it the
States, individually, Avere not knoivn nor rec
ognized as sovereign by foreign nations, nor
are they uoav."
And, in Ware, vs. Hyllon, {\st Pet. Con..
Rep. 99.) Justice Chase, also a distinguished
judge and a co-laborer inthe formation of the
P"ederal Constitution, speaking of the period
from September, 1774, to March, 1781, said
— "It appears to me, that the powers of Con
gress during that Avhole period, were derived
from the people thoy represented, expressly
given through the medium of tiicir State Con
ventions or State Legislature; or that, after
they Avere exercised, they Avore implicitly rat
ified by tlic acquiescence and obedience ofthe
people." The doctrines contained in the foregoing
quotations, seem too obA'ious to require the
aid or argument, or of any other authority
than that of their on-ii intrinsic jiropriety and
necessary truth. Thc birth of tlio Union and
that of the several States Avere simultaneous.
And there never lias since been an instant,
Avhen tiie States collectively have not, for na
tional objects, acted as one single State, and
been known and characterized as "the United
States." The people Avho made the several States,
also made the United States — the first for lo
cal, the last for national purposes. And the
same people avIio established, .^nd Avho alone
could havo established tlieir State goycrnmcnts,
adopted the Federal Constitution and con-
stnicted a National Government; and they
alone could have done ttiis work. Any otiier
doctrine or deduction, Avould be inconsistent,
not only with reason, and right, and history,
hut also Avith the principles of the Declara
tion of Independence and of, thc Revolution.
Independence Avas claimed by riie people of
the United States as one entire mass, entitled
to the same rights— cijual liberty to all at
oucc Avas achieved by their united councils
and common ctrorts; and tlieir Federal Con
stitution, for tlie government ,ind secnrlt\' of
each, Avas the eoni'iirreut act of the Avliole.
Thus the Liberty and the Union of the
people of the States, have ever been co-ex
istent and indissolulily as.sociated, as the body
and soul of one vital, substantial, comprehcn-
flive political being, (.1' the same j.opular pa
rentage, concciyeil at the same time, cast in
thc sumo matrix, nurtured hy the same com
mon blood, passing thronyl," the same fiery
travail, brought forth and hrritiniated by the
.«»mc process .nml at tiie .snme time, subjected
to the same pupila,<!'c, in'otccted liv the' same
guardianship, and tinally, at the same memor-
oble epoch of 1788, nnitured into manhood,
established m robust vigor, aud, like Jacob's
sons, blessed by the same hand and the samel

parental voice, of "WE THE PEOPLE OP
THE UNITED STATES."
The union of tho States and of the people,
though, in theory, ahvays partly Federal and
partly National, Avas, nevertheless, prior to
the adoption of the present Constitution, al
together Federal in its practical operation.
Wanting, until then, a controlling national
poAver, it did not possess the inherent faculty
of self-preservation, until it Avas imparted by
the people in that great Charter of Americaii
liberty and security. Although, prior to that
signal event, a Promethean spark had given
it thc delusive semblance of an artificial A-i-
taUty, yet, it Avas helpless and exanimate, un
til then thc sovereign people of .nil the States
breathed into it the pure breath of Hfe, Avhich
alone enables, or could enable it to live, and
move, and enjoy .i self-sustained tmd health
ful existence.
Foreign force and oppression hayiiijr pro
duced Independence, internal Aveakness and
discord iniluccd the adoption of the Federal
Constitution. Thirteen soA-ereign States, nom-
inall)- united hy a fragile Confederation,- Avith-
out national po^\•er, presented but thc shadOAv
of govemment, merely Utopean, anil altogether
inadequate to any one purpose for Avhich it
Avas established. "To form it more perfect
union, establish justice, ensure domestic ti-an-
quility, and secure tiie blessings of liberty,"
it Avas necessary to convert the shadoAv into
the substance of an actual .ind efficient na
tional GOVERNMENT. This could alone
have been done by the plastic poAvcr of the
entire people, and required the consentaneous
efforts of all their intelligence, and patriotism
and self-denial. But great .lUd difficult as
Avas this Avork, it has, as they believed, .ludas
we stUI hope, been accomplished, in the onlv
practicable and most effectual mode, by the
adoption of the Federal Constitutiou; Avhich,
as a A-ery general analysis of its nature Avill
show, has constructed a national government,
possessing Avithiu itself all tho faculties neces
sary for preserA'ing thc Union and existence
of the States, securing tho liberties of thc
people, and maintaining peace at homo anil
independence abroad.
According to its literal and popular import,
and the most approved definition of Lexicog
raphers and Publicists, -., political Constitu
tion IS ^ a form of goycrnment instituted for
orgaiuzuig a, civil eoinmunitv, and defining
the manner in AvIiich its pnbUc avUI shall.be
expressed or its pnldio authority enforced.
Government is cither speculative ir practical.
and generally both: the first is the bodv of
organized jmblic autiiority, tlic latter is' the
actual operation of the higliest political pow
er— the one being the form, the other thc ac
tion^ of supreme civil authority.
Then the great American Charter of 1788,
must bo deemed, in form and in power, a
structure of government, national, independ
ent, and suprcme,-an organic Lrav for all the

DELIVERED BEFORE THE LAW CLASfe.

19$

people of all tiio States, imposing a. personal I a,- long as it exists, supremo and independent
aud paramount civil obligation ou every citizen, ! authoriiy over those upon AA'hom it operates, it
and possessing an iuhoront and adequate poAv- is not, in any intelligible and practical sense,
or of self-prcscrvatinn and cannot, ooiisisti.'iU- ' a tioycrnmciit. That Avliich goverus must, as
ly withits style, its provisions, its ori-in, or its loiin' as it has a right to govern, luiA-e author-
objects, be cou^idore() a'niere treaty, or lc;'.,^'iic, ity.to coerce those Avhom it may govern; and
or compact, between sovcreinn States, and de- [must, therefore, be the highest "political poAv-
pcnding on the faith and interpretation olcacli jer, aud con^i^quently, must bo politically irre-

contracting party.
On its face it is aunouiiccd to bo a ¦¦(.'( IN
STITUTION," and it delegates and organ
izes all the pOAvers necessary for a supreme
popular goverilment of the United States.

sistiblc. The Constitution of the United
States, as to the national concerns embraced
by it, is just as supreme as any Coustitution
of any of thc States can bo as to local affairs
c-'vclusiA'cly Avithiu its scope. Tho one is as

The language of the compact of Confedera- much a fundamental LAW as the other, — both

tion Avas— "ARTICLES of CONFEDERA
TION between thc STATES of New Hamp
shire, Massachusetts," &c. — ¦•Each STATE
retains its OAvn sovereignty," &e. — "Tho- Lui-
ted States hereb}- enter into a firm league of
friendship," &c. But the style, and origin, aud
ends of the Federal Constitution are thus an
nounced— "We, thc PEOPLE (not the States)
of the United States, in order to fonn a more
perfect union, ESTABLISH justice, EN
SURE domestic tranquility, proA'ide for the
common defence, promote the general Avelfare,
and SECURE the blessings of liberty to our
selves and, our posteritA', do ORDAIN and
ESTABLISH tiiis CONSTITUTION for the
UNITED States of America."
The first was CA'idently only a Confedera
tion betAveen sovereign States, Avithout any
common poAver or arbiter. Tho last is as ca'-
ideUtly a union of the more sovereign people
of all the States, under the standard of one
National Government, to Avhich they transfer
red, from their local sovereignties, all the
poAvers necessary for governing themselves
with supreme authority, to the full extent of
all the purposes of the Constitution, independ
ently of the local poAver or sanction of the
several States.
Such is tiie essential and necessary difference
bctAveen a Confederation of States and a Fed
eral Constitution for thc people of the United
States. The one is a treaty betAveen sovereigns
— the other is a National government, above
the local sovereignties, and, pei-A-ading the
united Avhole of thc people for all tbe ends of
their union, isthe only soA-ereign Avithin the
prescribed sphere of national authority.
Is there not a constitution of the United
5tate.s1 Is not that Constitution a form of
goA'ei-nment for the United States? And can
it then be a lifeles-, foiin without poAver to
gOA'cm, or is it not, in ' action as Avell as in
idea, as it must be to bo a govemment, anned
AvitJi sufficient poAver to coerce thc citizen with
out thc consent and in defiance of the opposi
tion pf his State, and thu,s to^ maintain all the
jnst rights of a National Govemment; It is
not a government at all, unless, througliofit
the United States, it is the highest,' and, to
the extent of its exclusiA'e authority, thc only
political power. For, unless, to the extent of
the objects for Avhich it was inetituted, it has,
26

emanating from the only ultimate sovereign-
the constituent people; tiiat of the union being
established as the supreme laAv for all the'
people of all the States, as one nation for all
international purposes, and that of each sepa
rate State being made for regulating rights
exclusively conccriiiug one State alone or the
people of such State. An organic or funda
mental UiAv being thc immediate offspring of
thc people, in their natural right, brought into
being for controlling all delegated poAvcr, and
even the poAver and Avill of the people them
selves as long as it remains uiicliauged by
them, must be above all legislative .luthority,
and e(|ually above even the popular voice,
Avlicn inconsistent Avitli it. Neitlierthe Legis
lature, nor any portion of tho people, nor
evou all tlie people of a State, can, authori
tatively or rightfully, overrule, or suspend, or
resist, the fundamental laAv, as long as its ex
istence is acknoAA'lcdged. Thc people may
abolish or reform it peaceably, and in the mode
permitted by its nature or its terms, or may
overturn or abolish it by force, or, in other
words, by revolution. I5ut, Avhilst it exists,
its authority must be supreme and irresistible,
or it is not Avhat it purports aud was intended
to be — a fundamental laAv. The Federal
Constitutiou, to the extent of its provisions, is
thus fundamental and supreme. ItAvas made
by the people, not by the States; is subject to
Tuodification or abolition by the people alone;
operates on the people directly and individually
and not on tho States or through thc agency of
State authority; and belongs to thc people of
all tbe States, as one common and entire mass,
and not to the several States as separate and
corporate bodies. It cannot, then, be subject
to State poAver or State Avill, or even to the pow
er or A\-ill of a majority of the people of all
tiie States, except for amendment, or by revo
lution. All this is undeniable, if there is a
Constitution of thc United States, and that
Constitution be a fundamental and supreme
laAv of all the people of all tiie States.'
But lest there might, in this respect, be
ground for doubt or controversy, the people
have expressly declared, in the Federal Con
stitution itself^ that it, as Avell as all laAvs and
treaties made under its sanction, shall be "the
supreme law of the land"— any provision in
\anv State Constitution or Rf-*" ^'^ "tn the

State laAV "to the

194

INTRODUCTORY ADDRESS

contrary uotAvitlistandiug." Thcii, it c\en
a proA'ision ill a Constitution of a St:i.te, re
pugnant to the Federal Constitution, is yoid,
hoA\', or by Avhat peaceful and authorized nieans
can a State, or the people (jf a Stiitc, control
or resist that liiAV Avliieh is fbns .-eprewe n\(r
.iin Moreover, thc people, avIio :iloiic had the
poAver, have not only organized a Xii tional
Gpvernment, but have endow ed it A\ith all the
faculties, andhaAC delegated tu it and taken
from the several States, all thc poAversiieees-
sary and proper tor maintaining supreme and
irresistible national iiuthoric}. All the attri
butes of the highest political sovereignty arc
reducible to three functions of poAvcr — the
Legislative, the Judiciary, and the Exeeutivc.
And the depository of these three is undoubt
edly a political soyereign. Noav thc Consti
tution of the United States, not only delegates
tothe General GoA'crniuQutall national poA'> ers,
but organizes those poAveis, and distributes
them among three separate and co-ordinate
classes of functionaries, ami declares thatthe
Judiciary poAver of thc United State? shall be
co-extensiye Ai'ith the Constitution, /rreatics,
and LaAA's of the ' United States, so that the
General Government sliall not hare to depend
on the uncertain and diverse, or partizan inter
pretations of its Constitution, Treaties, and
Laws, by State tribunals; but has thc ri.ght,
AHthoiit Avhich it could not bo a GOVEliN-
MENT, of upholding and enforcing its OA\'n
livAvs, through tiie agency and according to thc
judgment of its own independent Judiciary.
It is the nature of Judicial pOAvCr, that AA'lien a
court of the last resort finally decides a, ease
over Avhich it had jurisiliction, tho dcci-iou is
conclusive and irreversible. Thc only appeal
from it is to anns. This conclusiveness is
necessary for peace, certaintA- and eonfidcnec,
aud for the uniformity and .stability of laAv
and of justice. If, Avhilc tiic Constitution
lasts, the aa'UI of a majority of all the constit
uent people bo the supreme Uiav, then the Con
stitution itself is a delusive sliadoi.', altogeth
er unnecessary and unayailiiig.
Thc only object of all our Constitutions
was, to secure the minority against the poAver
of thc majority, the Aveak iigainst the strong,
thc humble against thc exalted, the . poor
against tiic ricii; in fine, CA'ery isolated citizen,
againstthe combined Avill and poAver of cvcry
other citizen, And tiiat end can be attained
only through the iiistrumentalitA of an en
lightened, firm, audimpartial .liulieiiiry, Avhose
peaceful and noiseless aAvard shall still all
commotion, and aAve, into submission, all op
posing poAver. Some single and ultimate ex
positor of the Constitntioii and LaA\'3 of the
United StalesAvas indispensable to tlieir proper
efficacy and prevalence. For A\aiil of such
an umpire, the old Confederation A\'aR a rope
of sand. And, therefore, thc people, anxious
to make auy sacrifice nocossary for ]irescr\'ing
their common Uborties, adopted a Constitution

ill lieu ol' a League. J'.iid imparted to it thc
poAver of sell-presei'y:!tioii, Avithout depending
on State authorilv, and ill deiiancc of State
oppo.-ition. -\s ihe Constitntioii and LaAvs of
tile Union -iire llic Constitution n,ud LaAvsof
all thepeople ('1' ilic 1,'niou, that cannot be
constitutional or laAvIul in one State, Avliichis
uiiconstitutionul or xmlaAvful iu any or eycry
other State. Bat this Avould be llie case fre
quently ami inevitably, if encJi State, through
its Judieiary or othci'Avise, liad the ultimate
right to c.^^ifiound for itscli', or Avithin its OAvn
borders, the Constitution ami la-Avs of .ill the
people of ail tiie State-.
.Ncilher tlie union of thc States nor tiie.iu-
tbority of the (.'oiistitutiou and laws of that
union could be maintained Avitiiout ^ a federal
Judiciary Avitli jurisdiction oAcr that Constitu
tion aud tiiose laAvs, nor unle,?s the authorized
and ultimate deeir-ions of the National Su
preme Court should be tuial and conclu.siyi'
everA' where idthin- thc limit? of the United
States. 'I'he constitution constmeis a limited
goyernniciit. If the LegislatiAc department
transcend the pre-crilied limitations, its act?,
so far, are not laAVf — but arc Avithout any au
thority and utterly void. Who is to declare
them void and prcAciit their enfbrcemeut? —
The Judieiar}-; because that is the appointed
organ of the aboriginal judicial poAvcr of the
pcojilc, as tire LegislatiAC Department is thc
dcpofcitoi'y of their Legislative function. Anil,
as the judieiary is bound to decide Avhat flio
laAV is — and 11. s a legislative enactment unau"
thorized or prohibited by the constitution can
not be laAv, it is tiic right, and thc duty too, of
a judge to disregard, as a nullity, any enact
ment eontiieting Avitli the fundamental will of
the constituent people, Aviiicli is, in such case
tlic only liiAv. For this purpose it Vas adopted
— and to this end it must operate.
The federal constitution also limits, in many
i important particulars, the local poAvcr of tiic
j States. No State for example, is alloAved to
icoin money — emit bills of eredit — pass any ex
\post facto laAvs or any liiAV, abridging the lib
erty of conscience, of speech, or of the press.
lIoA\- are such limitations on State sovereignty
to he enforced! J5y the State Avliieh has itself
overleaped them: Sneb au asMimption is sui
cidal and' preposterous. Tlio people of thc
Avliolc United States, by their fundamental laAV
say to each State and to all the people of cadi
State — "You shall pass no ej; poet facto law —
and, if you do, it shall be void." One State
nevertheless, under »lic infiucneo of a faction,
or for the puriiosc of experimenting Avith au'
urrogatod solf-indcpeiulencc, enacts and ut-
tcmjits, through its oAni )u'i\judieed or iutiini-
dated Judieiary, to enforce, against a pcrsc-
eutcrl iniliyidual of an obno.-tious ilenoinina-
tioii or subjug.ited party,, a statute pimisbiug
capitally an act or an opinion, Avhieh, Avhcu
done or iitieied, Avas pcrfectlA' laAvful and in
nocent; he appeals to the Constitution of the
United States as the ark of hiefalyation — that

DELIVERED BEFORE THE LAW CLASS.

195

is his only hope, his last refuge — it is closed
against him by his oAvn State — enuuor the peo
ple of all tho Snites, through their constituted
organ, appointed as its controlling sentinel and
presiding minister, open its portols and save
iiim! If not — then any State may juiss and
enforce a,n ex post facto or any other statute,
•'tbe supreme livw of the laud" to the contrary
uotAvithstrtiiiliiig. But the federal Judieiary
has this salutary, necessary poAver, aud lias ex
ercised it ever since the organization of thc
general government.
A State constitution also limits the Legis-
latiAcpoAver of the State. If its Legislature
overleap oue of these bulAvarks and strike at
the guarantied rights of a single citizen or
minor part}- of the State, cau the major party,
or "THE STATE," Avho prompted tho usur
pation, eoustitutioually maintain it in defiance
of the judgment of the ultimate guardian and
umpire of the fuudaiiiental laAA- — the State
Judiciary! Certainly nut: for again avc say,
that, if the Avill of a majority is ahvays the
Supreme l.a.AA' — a coiistitutimi Avas, not only
umicees>aiy, but idle and delusiye. T'hc fed
eral con.stitutiou is as inviolable and as eft'cc-
tiial throughout the United States as any local
constitution can be Avithin the limits of a
Stp.tc.' They are both, in tbe same sense, fiin-
daiucntal Ur>vs as for astlieyare respectively
applicable, excepting only A\-lieii they are in
confiiet; and then tiic minor yields to the ma
jor; and the federal .Tudieiary has as much
right and as much poA\'er tu uphold and to eii-
fbrcc the luttioiial constitution and national

can have to main-
of a State Coiisti-
But tbe Supreme
^ may err in its judg-
bc unconstitutional

laws a?, a State Judieiary
tain the proper ^¦J.premnl¦y
tutiou and State laA\^s.
Court of the United State
ment, and ileeide that to
Avhii-h is, iu fact, constitutional; or that to be
constitutional Avhich is, in fact, unconstitutional.
And issu''Uan error irremediable'; Not at
all. There arc two remedies, the one consti
tutional — the other unconstitutional. The re
sponsibility of the Judiciary — the right to re
peal Legislative arts and to amend the organic
laAV. are the only constitutional remedies — pop
ular rosi.-^t.iiiee by forec, is the only other ac
tual remedy, and tlui t i- revolutionary — beexuse
it is inconsistent with thc frame of thcgoyeru-
nient and ,-ubyersive of its greit ends — tbe
supremaey and stability of hiAV, and coiise-
ifiient legal security .•against popular imssious
anrl tumultuous or lieeiitioiis po\\'ov. or, iu
one comprehensive Avord', .M< )F)(>C]1.\CV. If
all the-o fail, avc haie a mvc and solitary cuse
liresentiiig a iieees,-,iiry evil ineidcnt to all hu
man institution-: an immedicabile vulnus oi' thc
bodA- politie, tu whieli every AVork id' man,
however good, is ii'.'eessnrily liable. .V simi
lar r:i!^r may oi-our in a State, and niiiy be more
a])t to oeeur their. . vud then AA-inild there bo
any otlioi- remedii ¦ tliim those just described?
tk'Vtainly not. Would not tho latter remedy
Iv force be unooiistitutioupR Cerfaiuly. And

is there more danger that the federal constitu
tiou Avill he perverted or abused by the nation
al court, than there is that a State constitu
tion may be perverted or abused by a State
eourtf Arc uot both, the people's courts — ^the
one, fur .ill thc people — the other, for only a
piirl — tho one, thc guardian of the supreme
laAV of the Union — the other, the guardian of
the subordinate laAv of an intrcgal portion of
that Union?
Every political sovereignty must not only
haye a,U the faculties necessary for governing,
but mu^t, of course, be the judge of its oavu
poNNers. And therefore, each State, as alto
gether isolated, is the sole arbiter of itsoAA'ii
cxeliisi\c po« er, according to the plan of its
OAvn i-irganization — aud tho guyeniment of the
United St ites is ueeesrfftrily thc judge, inthe
last resort, of its jiuiver; and, if there be col
lision between a State and the General Gov
ernment, the latter must prevail, because tho
Cunstitutiun and the coustitutional acts ofthe
United States are "the Supreme law" of all
the people of all thc States; and the Supreme
Court of the I'uion has delegated to it, by, tho
people and for their protection, the ultimate
power to decide on the Coustitution and laws
of the Union. ^Ye say, confidently, it has the
ultimate power, because the jurisdiction is con
ferred on it Avithout iiualification or reserva
tion, and therefore its final and .autiiorizcd de
cisions must be conclusive and unquestionable;
and, because also, any other doctrine AS'Ould
lead to confusion, uncertainty, anarchy and
disunion, and Avould be altogetlier inconsistent
Avith. the ju'oyisions and objects of the federal
Constitution, and irreconcilable Avith the prac
tical existence of a general goyernment.
The States uf the Union haye not all the
poAvers of independent sovereigns. A State
lias no poAverto declare Avar, make treaties,
coin money, regulate commerce cither exter
nal or among the States, control tho mail, na
turalize foreigners, or make any invidious dis
crimination lietAvecn the eivil rights and
privilegea of itsoAvn citizens and those of cit
izens of any of its co-States. The people
have, for Avise jnirposes, t.nken all these and
many other iiuwers, from their separate State
guvernnients. And arc not those just euumer-
ntcd tiic )iighe.--i attributes of .ooyercignty? If
a State, ncyertbeless, declare Avar, or make a
treaty, ov coin money, or interfere Avith thc
transportation of tho mail, or Avith the regula
tion ol' foreign eummeiTe, may not the general
L'oyerniueiit control it? Ua? it not authority
aiid])0Aver to do sri? It has not, if a State
hiis a right to judge and act for itself in dcfi-
Hiiec of thc judgement ofthe federal authorities
 ;i]iil tiicn'the federal eonstitutioiihas uo con
servative power, and is ainere bruium fulmen.
nothing.like a constitution or fiiudamciital and
supreme hiAV.
If ai'ilizcii believe tiiaf the Legislature of
his State bus cinii'led, ro bis prejudice, an im-
nrnsfitutioual statute, he has the natui'iil right,

196

INTRODUCTORY ADDRESS,

of deciding for himself, in the first instance,
Avhether he AA'ill submit to it or Avhether he avUI
incur all tho peril and responsibility of per
sonal resistance. If he resist, and tho Judi
ciary sliould sustain him tiy deciding that the
statute was A'oid, all Avould be well; but if the
decision should be agaiust him, he must .sub
mit to the legal consequences, even if they
should bo those of treason; unless he is stronger
than his government; and if he be, his gov-
oi-nment is put doAvn, aud so far revolution
ized. The right, and the process, and the
issue Avould be precisely the same if a .statute
of tho general government Avcro called in
question; whether by one person or by all ,tho
constituent persons of ouo State or of a major
ity of all tho States. No set of men can be
the final judges in their oaa^u case, unless they
resolve themselvea into their original elements,
disorganize their government, and shake off
tho political obligations Avhich it imposes. In
surrection and revolution are natural and
inalienable rights; but tiiey are still insurrec
tion and revolution, aud nothing else. They
are not political rights; because they are in
consistent Avith political obligation and sub
vert all poUtical authority.
Tho majority of the people of one of the
States have no more political right to overrule
or resist an authorized decision ofthe Supreme
Court of tbe United Slates respecting thc fed
eral constitution than the same majority avouIu
havo a political right lo oyerrulc or resist a
liko decision by the Supreme Court of their
State respecting their local constitution. In
deed they have not as much scniblauco of au
thority, because, in tho Jatter ca.se, they arc
the majority — but, in the former, they arc in
a very small minority.
The general goyernment is armed Avith i)Ov\-
or to protect and control a State, evoii iu some
conflicts of local concerns. The federal con
stitution makes it the duty of the general goA'-
ernmenl to guarantee to each of the States a
republican form of government, and, on the
application of the Legislature or the Execu
tive Avlieuthc Legislature cannot be convened,
to protect any State "agaiust domestic A'io-
lence." It was deemed csseutial to union that, as to
their fundamental principles and forms of goy
ernment, thc States should all bo homogen-
oous, — and that republicanism should pervade
and characterize the Avhole; ;md, therefore, the
people of the Avholc, in the iilentitude of their
sovereignty, denied to themselA'cs, as the eoii-
stituonts of the several States, the right to es
tablish any other than a Rcpublieaii State
Government, and delegated to Congress au
thority tu preycut the pestilent euntagiou of
auy other form in any of tbe States. The his
tory of political fraternities, and especially
that of tbe Cprmanie Coiil'ederaey, the Hel
vetic League, and the Aniphyetioiiie Council
after Philip of Maredon Avas initiated, pro
claimed, in one warning voice fiyom the tombs

of nations, the danger of a heterogeneous
union of dissimilar political bodies AA'ithout a
peryadiiig and common .sympathy. And
hence a dominant faction in a State cannot es
tablish any form of State gurernmeiit it may
ehouse, but may be .so far controlled by the
government of the United States, as to be
eompellcd tu retain a republican form, .ind
if the same, or any other party or combina
tion in a State threaten domescie A'ioleuco, or
attempt to resist the regularly constituted
State authorities — the general gOA'erument
may, on proper application, protect tho State
from insurrection and A'iolence.
The same necess.ary doctrine applies equally
to every poAver delegated to the general gov
ernment. Thc Constitution is one consistent
and entire .syst&m. If, . as to one of its poAv-
ers, it is a Constitution or fundamental and
supreme la'w, it is just the same — neither more
nor less, — as to ail the other poivers delegated
by it and denied to thc States. Its fundamen-
tality can arise only from its inherent poAver,
according to its sfruetiire, to preserve itself;
and its ouiy supremacy arises, , or could arise,
from its'oAvn puAver ro enforce its oavu principles,
and maintain, A^•ithout extraneous aid, its oavu
just authoi-ity. ItAvas made by the people to
preserve their dearest rights, and to secure the
Union, and to uphold the liberties of thc sev
eral State,-,. Anil thepeople so organized it
aud transi'erreil to it sui'li pOAvers as. iu their
Judgmeui,-, ivuuld enable it to eft'ectuate all
i tiiose great cuds. Why else Avas it aduptcd at
[ all! Why callcii a Constitution? Why the
Supreme LA'W of tb.e United States! Why
I Avere so many and suck high poAvers so care
fully and spoeifieaily delegated by it? Why were
, the national deiiositories of those pOAvers so
wisely separated and arranged as to make them
; mutual eliccks on each, otlier! Why A\-a3 the
exorcise of many important poAvers by the
, States expressly prohibited! Why has thc
I general goyernment, ever since its organiza
tion, acted and been permitted to operate just
' as a supreme goyernment to the extent of thc
poAvei's conferred on it by thc Constitution .ind
above the control ofthe States! And AA'hy
did the people, by thc federal Constitution, in
stitute a Supreme National Court, and confer
on it jurisdiction in all cases in AA'hich that Con
stitution or A treaty Hr laAv of the Uuited
States should cA-er be called in question!
The nature, and term,-, and knoAvn ends of
the Constitution itself aiisA\er these questions
Avithout doubt or difficulty; the practice ofthe
general goAernment aud the derisions of the
Supieiiie Court of tiic United States CA'er
since its organization, and the eomnion uuder-
stiiiuling .and aci|uiesrenre of the people au-
sNvcr them also and in the same Avav. The
senlimcuts of General Washinu-ton already
ijuoted. and the language of the Federal Coii-
ventiou iu its address" to tiio people, and tiic
doehired opinions of those Avho ojiposed, as
well as of those AA'ho advocated the adoption of

DELIVERED BEFORE THB LAW CLASS.

197

the Coustitutiou, all concur in tho same plain
aud emphatic ansAver — that precisely which avo
have been endeavoring to deduce from tho Con
stitution itself and from the history of its
adoption. Had not the object of the people
been to eouyert a confederation of independ
ent sovereigns into a popular Government for
all purposes common tu all the United States,
aud endoAv it Avitb the means, of course, of
self-preservation and tiie po«'er ol'self-euforec-
meiit — thev Avould not have substituted the
present Constitution, — as it is, — for the Arti
cles of Confederation-
It is historically true and undeniable that
the most radical objection urged against thc
adoption of the Coustitution, by AA'horasoevcr
and Avherever it AA'as opposed, Avas — that it
was not a confederation of States, but a na-
tioual government Avliich avoiiUI, by its owu
poAver, operate personally aud directly on ev
ery citizen of the Uuited States AA'ithout re
gard to tho interveiitiou or saiietiou of the
State goyernments — and that, therefore, State
sovereignty, to a great and dangerous extent,
was surrendered, aud the general goyemmont,
might, cousequcutly absorb all thc residuary-
powers of the States and produce one central
consolidated government. 'The advocates of
the Constitution met that objection, not by de
nying or qualifying the premises, but by she^^--
ing tiiat the liberties of tho people and the
security of die States imperiously required that
such a national government should be estab
lished, and should possess the supreme poAvcr
of doing all that thc Constitution authorised
and contemplated.
"There ought ahvays to be a eonstitutional
method of giving efficacy to the ronstitutional
provisions. What, for instanee, Avould avail
the resfrictious on the authority of thc State
Legislatures without some constitutiomvl mode
of enforcing the observance of them! No man
of sense will believe that such prohibitions
Avould be scrupulously regarded Avithout some
effectual poAver in thc Goyernment to restrain
or correct tho infraction of them. This puAver
must either bo a direct negative on the .State
laAvs, or au authority hi thc federal courts to
overrule such as might be a manifest contra
vention of thc articles of Union." "There is
no third course that I can imagine. Tlic lat
ter appears to have been thought by the Con
vention preferable to the former." "If there
are such things as political axioms, thc pro
priety of thc judicial power of a government
being eo-cxtensive Avith its legislative may be
ranked among its number. Tho mere neces
sity of uniformity in the interpretation of the
national laws decides thc question. Thirteen
independent courts of final jurisdietiun over
tho same causes is a hydra in government from
'.vhicli nothing but eontradictiun and confusion
ean proceed." "Controversies between tlie
nation and its members or citizens cau only be
properly referred fo the national Iribunals.
Any other plan Avould bo contrary to reason,

to precedent, and to decorum." "The peace
of tho Avholo ought not to bo loft to tho dispo
sal of a part. The Union avouUI undoubtedly
be ausAverable tu foreign poAvers for the coii-
duct of its members: And the responsibility
for an iujm-y ought ever to be accompanied
; Avith tbe faculty of preventing it." And the
1 letters of Publius, by Hamilton, Madison,
j and Jay, explaining the Constitution, vindi-
i eating its provisions, and urging its adoption,
' arc replete Avith such arguments. Neverthc-.
less the Constitutiou, thus understood by all
parties, was adopted.
This consideration, sustained by indi.sput-
able facts, should alone be conclusive.
"The moans ought to be proportioned to
the end. , The persons from AA'hose agency thc
attainment of any end is expected, ought to
possess the means by Avhich it is to be attain
ed." "Whether there ought to be a Federal
Government, entrusted Avith the care of the
common defence, is a question, in the first in
stanee, open to discussion; but the moment' it
is decided in thc affirmative, it Avill follow,
that that Government ought to be clothed
Avith all thc poAvers requisite to the complete
execution of its trust." "There is an abso
lute necessity for au entire change in the first
principles of the system (confederation).'' "If
A\-e arc iu earnest about giA'ing the union en
ergy and duration, avc must abandon tho vain
project of legislating upon tho States in their
collective capacities; ive must extend the laAvs
of the Federal Government to tho individual
citizens of America. Every vIcav Ave may
take of the subject, as candid inquirers after
truth, Avill serve to couA'ince us that it is both
uuAN'ise and dangerous, to deny tbe Federal
Goyernment an unconlined authority, in re
spect to all those objects Avhich are entruated
to its management. A government, the con
stitution of Avhich renders it unfit to he en
trusted Aiitli all the poAvcrs Avhicli a free peo
ple ought to delegate to any government,
Avould be an unsafe and improper depository
of tho national interests."
Sucli are only a fcAV of the many arguments
Avhieh, prior to the final ratification of the
Constitution by thc people, Avere addressed to
them in the letters of Publius and clseAvherc.
And it Avas just because tho Constitution Ava,*
understood to possess tbe national, efficient,
and supreme authority thus ascribed to it, tha t
one party opposed and another adA'ocated tbr
adoption of it. Then, Avei'e there no other con
sideration leading to the saincoonolusioii, does
it not possess that character! Plainly and un
deniably, as Ave unhesitatingly believe, itdoes,
it must. That the Supreme (Jourt of the Union has
final jurisdiction over a judicial ease, in AA'hicb
a State is a party as plaintiff, is not, and can
not be denied or doubted. And that court
in Cohens vs. Virginia, and in other cases.
has decided, and correctly too. that it has ju
risdiction Avhenovcr the Conetitution ora treaty

193

INTRODUCTORY LECTURE,

or law of the United States, is implicated by
a decision, by a State court against it, even
though a State he defendant in the suit. —
Those decisions, having beeu so long acqui
esced in and so generally appruved, must be
deemed to be correct. Then Avill it, can it be
denied, or seriously doubted, by an intelUgent
and dispassionate mind, that, the Supreme Na
tional Court having jurisdiction to decide
against a State, the General Govcrnuiont has
the poAver to enforce the decision? If it can
not, tho deci.sion cannot, as thc decisions of
tho same court in other eases, be final and
conclusive, and if it be not, that court has
not, in that class of cases, appellate jurisdic
tion. But it hassuch jurisdictiou; and, there
fore, a State, like any other suitor, is bound
to submit. This is only another exemplifica
tion of the supremacy of the Constitution,
Treaties and Laws of the Uuited States, and
of tho pOAver of the General Goyernment to
enforce tliem, against any opposing body of
citizens, even though they may happen to eou-
stitute a majority of a State This kind of
security of a citizen, or a minor jnxny against
a dominant majority, is one of the most valu-
oblo and necessary of all political rights. —
And certainly tho order of nature Avould be
inverted, and all precedent outraged, if a
court of a State, from AA-hie.li an ajipeal may
bo taken to the Supreme Court of the nation,
may laAvfuUy refuse tu ubey the mandate of
the revising tribunal, and thus, in effect, abol
ish the coustitutional right of appeal, assume
supreme independence, and virtually reverse
the decisions of the higher court, j'oid if a
court of a State eannut do this, surely tlie
State itself eannut do it, by laAV or other\viso,
in any of its political functions or capacities.
We have two systems of government, caeli
supreme in its sphere — tbe several Staie gov
ernments for local purposes concerning each
State separately and alone, and tho National
govemment, for all national objects of exter
nal concern, or of dinnestic interest among
tho citizens of diftorent States, or important
to tho harmony aud union uf the States. In
the first aspect, the Union is Federal, in thc
letter it is altogether Natiunal: and thr Avbole
action of tho (ieneral liovernment is Nation
al; tiiat is, upon ail thc citizens .of tho United
States equally and alike, undiiot on the States
in their corporate eharaeter. The Coiislitution
of the United State's Avas made to hind the
States together. Tlii.-i it cannot do, if any
one State ean control tho (Tuvrriimmt of the
United Slates, or ilissolAC the Union liy cither
resistance or seeessiun. The jicople of the
States liad a right lo iibi'ogate theii- loeiil gu\ -
ernnients, .mil form one eonsolidateil .Vatioual
Goveninient. !tA\asnot deemed prudent lo
du su altogeiber. or to a grcatc' extent than
ivas proper i'ln- pre,-:r'i'ying tho 'i.'nioii of tbe
Statcc, and pro'.eeling their eomnion interests
abroad: And, to that extent, but that only,
tho people did surrender all .sejiariito State

pOAver, just as fully and effectually as if they
had utterly aboli'shed their State govern
ments and 6ub.stituted one entire, exclusive,
central government. "Tho Constitution of
the United States being ratified by tho people
of the several States, became, of necessity,
to the extent of its powers, the paramomnt
authority of tlie Union. (^Iii sound jn^inciples,
it cannot be vie\ved in any other light. , Iu
the institution of the government of the Unit
ed States, by the citizens .of every State, .1
coin]mct was formed by the Avhole American
people. Avliicli lias tlie same force, and par
takes ol' all the qualities, to the extent of its
pOAvers, as a compact between the citizens of
a State in the formation of their own (State)
Constitution. It cannot be altered, except bv
those Avho formed it, or inthe mode prescribed
by thc parties to the compact itself. If it
could, it would uot be a Constitution. "The
great office uf the (Fe.deral) Con.stitutiou, by
incorporating thc people of the several States,
to the extent of its poAvers, into one coramu-
nit)', and enabling it to aet directly on thc
people, (the only parties to it)A\as tu annul
thc p0A\ers of the State guvcrnments to that
extent. The government uf the United States
relies on its OA\'n means, for the execution of
(all) its poAvers, as the State governments do
for the exeentioii of theirs: both goycrnmcnl.s
having a eommon origin or su\'ereign, the
people; the State governments, the people of
each State, the National Gcvermnciit, thc)ico-
plc cf every State; and being amenable lo
the power that created it. It is by executing
its function" as a governmout, thus originating
and thus acting,, that the Constitution of the
United States holds the States together, and
performs tiie office of a league. It is OAving
to thc nature of its poAver-. that it performs
that office better than the Confederation, or
any league which eA'er existed, beiim' a com
pact Avhich tho State goyernments did not fonn
to Avliich tiiey are not parties, and Avhieh exe
cutes its oAvii poAvers independently of them."
Thus thought, and thus said, James Mon
roe, Avlio Avas among the most distinguished of
those opposed thc adoption of tiie Federal
Constitution, mid avIioso chief o'ojcetion fo it
Avas, that it was understood then, as noAv, to
be just Avhat he has so plainly and forcibly
deseribrd it as being, in one of his message's
as rrcsidrntof the United Statei,.
Lutiier Martin, a leading member of tiic
.Maryland ('onventioii, and avIio voted against
riie ratiiieatiuii oi' the Federal Constitutiou,
assigned, among others, tiir folloAviiig reason:
¦¦Hy the ;iril article, the judicial jioAver is vest
ed ill one Supreme Court, and in such inferior
eoiirts. -S'.r. Tlie-e eouits, and these only, Avill
have a right to decide upon tiie laws of tiie
I nitod States, and all questions arising upon
their eoiistruetloii. &e., by Avhose determina
tion every State is liound."
Charles Pinekney, among the niu,.t proini-
ncnl iind active, oi'the mcmbciV ofthe federal con-

DELIVERED BEFORE THE LAW CLASS.

199

vcution, said tiiat i*ivonUl bo tiie duty of thc
Supreme Court of tho United States, '"not on
ly to decide all uaiioual questions Avhich should
arise in t'ur Union, hut to control and keep tho
State judiciaries Avitiiin their p.oper limit.«."
ilr. Madison, Avho Avas an emin r.t mem
ber of tile I'ederal Convention, and also oi'
that of his State, Virginia, said, in thc htttcr,
— in answer to an avgumcnt by tbe lelcbrated
Patrick Henry against tiic routrolling pov.er
A'ested iu the General Government through its
Supreme Court — "It may be a misfortune,
that, in organizing any government, the ex
plication of its authority should bo left to liiiv
of its co-ordinate branches. THERE IS NO
EX.^V.in'LE IN ANY Ci-iUNTilY V/HERE
IT IS OTHERWISE. There is no new pol
icy hi submitting it to the Judiciary ul' thc
United Stare-.''
It is thought by many, th,i,t Mr. .Madi,-un,
in his famous Preamble and Resolutions of
1799, advocated the right of a State to set up
its own jndgmcut in opposition] to that of the
constitutional organs of the General (.Govern
ment, and tu resist, by force, an aet of Con
gress wluch it should deem unconstitutional.
We presume. liOAvever, that this Avas not AA'hat
he or those Avho concurred Avith him intended,
but that they meant only to maintain the un
questionable and unquestioned doctrine, that
a State or State court, like an individual,
might, in tlio first instance, judge for itself as
to the constitutional validity of an act of
Congress, and might cndoayor, peacefully, by
argument, remonstrance or rc-olution, to pro
cure the repeal and prcA'cnt the enforcement
of it. But if, as is possible, more Avas intend
ed, the later aud more enlightened, and ma
tured, and disinterested opinion of l\lr. iLadi-
son, should alone be a sufficient antidote to
any such cancerous doctrine as that of the
political independence and supremacy of any
oue State, in a collision A'-itli thc Govei-n-
ment of all flie States. In his admirable let
ter to Edward Everett, dated October 1830,
after establislung, in a lucid and unansAver-
able argument, the popular origin and action
of the General Govei-nment and tho suprema
cy of its authority, he said: — "Those Avho have
denied or doubted the supremacy of the judi
cial poAvcr of the United States, and denounce
at the same time a nullifying poAver in a State,
seem not to have sufficiently adverted to the
utter inefficiency of a supremacy in a laAA' of
the land, without a supremacy in the exposi
tion and execution of the laAv, nor to the
destruction of all equipoise botAveeii tho Fed
eral Govei-nmcut and the State governments,
if, Avhile the functionaries of the former are
directly .or indirectly elected by. and respon
sible to the States, and the functionaries of
the States are, in tlieir appointment and re
sponsibility, AvhoUy independent of the United
States, no constitutional control of any sort
belonged to the United States over the States.
Under such au organization, it i.« e'rident, that

jit AvuuUl be in tiic poAvcr of the States, indi-
[vidually, to pass iinautiiorized lf,A',-s, andto
; ean-y them, into eumplotc eft'ert, any thing in
I'he Constitution .and laAvsof tho 1. nited States
'to the contrary iiutwithstandiiig. This Avoulrt
be a nullifying jiOAvcr in its plenary character;
ai:d A,-|irtl:ri- it had its rinal effect through the
Icgisiaiivc, executive, or judiciary organ of
thc State, would be equally fatal "to the con-
jstituted relation between tho two governments.
' Should the provisions of the Constitution, as
:hcre received, he found'not to secure the gov-
jeruuient and rights of thc States, againstlalsc
usurpation and .abuses on the part of tiie
United States, the final resort, Avithin the
province of the Constitution, lies in an amend
ment of thc Constitution, according to a pro
cess. a,pplirable to the States.''
; Peaee and justice betAvccn the States them-
; selves 'and tho just and necessary authority of
I thc government ofthe XTnion, "could not be
1 preserved, unless the latter had powers para
mount to those of thc Several States. As it,
as well as each of them, was made by thc
people, and ns it AA-as made by thc Avhole peo
ple of all tbe States and i.s responsible tothem
.and only them, and each of the State govern
ments Avas established by only a fraction of
the people of the Union, it is, as intrinsically
j fitting, as it is absolutely necessary, that, in 'a,
I collision between it and any of them, the
[Federal Governraent should control. Iri a
contest bctAveon thc Avhole and any of its parts,
thc former must govern.
I But, if any State should ever fed itself so
oppressed by Federal usurpation or injustice,
as to consider it bettcrtodissolA'etlieconnexion
than passively to endure Avhat it deems wrong,
its remedy is undoubted and natural— it may,
as our fathers did, and as all men- have a
right to do, try the hazards of revolt. But
such a remedy is extra-constitutional; and,
AvhcUever, inany instance, it shall be resorted
to siiecessfully, theFederal Constitution will
be impaired or destroyed, and the Union it
self maimed or dissolved. The trial Avill be
one of moral, not of political power, and will
present a rare and momentous crisis, in which
all political systems must either fail, or must
triumph only by tiie ultimate reason of nations
— physical furce. And in the language of
Chief Justice EllsAvorth, after urging in con
vention, thc necessary supremacy of thc Gen
eral Government — -'Still, hoAvever, if the
United States mid the individual States will
quarrel — if they Avaut to fight — tiiey may do
it, and no frame nf Government cm possibly
prevent it."
But to prevent or render difficult such a
catastrophe, the Federal Constitution was
adopted, the Union Avas established, and
the General Govemment was, as far as au
thority has been delegated to it, vested with
ample and supreme national poAvers. And as
long as its just .authority, as established by
the people in conyention, »haU bu properly

200

iNTRObliCTOflY LfiCl'liRte,

respected or maintained, that Union and Lib
erty Avhich it AA'as designed to Avatch over and
secure, will exist and be enjoyed as far and
as perfectly as they could exist or bo enjoyed
under any political organization Avliich the
Avisdom and patriotism of our predecessors
could, Avith their lights, have completed. It
was thus only, that they could "ESTABLISH
justice" or "SECURE domestic tranquility."
If tho people of a State, by ordinary leg
islation, or by the intervention of their State
.hidiciary, cannot nullify an act of Congress,
or a treaty or provision of the Federal Con
stitution, against the avUI of the people of the
Uuited States, as expressed, fipally and au
thoritatively, through tiieir proper organs, they
surely cannot do so, laAvfuUy or aA'ailably, in
conventiou, or othei'Avise in any political ca
pacity Avhich thoy can assume as a constituent
member of the Union. The Federal Consti
tution being made by and for the people of the
States, aud addressed to and operating upon
them, is, of course, obligatory on them as
citizens of the United States, and may be en
forced upon tiicm as long as they shall remain
in the Union.
If, for example, no state Legislature can
pass an expost facto laAA', or laAV impairing the
legal obligation of a contract, or any laAv es
tablishing a religion or prescribing a religious
test oath, the people of a State certainly can
not, iu conyention or in any other mode, con
stitutionally enact and enforce any such inter
dicted laAV or ordinance, or any thing else for
bidden by the supreme laAv of all the people
of all the States. A State Constitution is a
law — fundamental it is true — but nevertheless
law, and nothing more than laAV. And the
Constitution pf the United States being the
supreme laAV — any thing in any State laAV or
"State CONSTITUTION to the contrary
notAvithstanding"— must retain its supremacy
over a State convention and even thc people of
each State as long as thoy continue to be also
people of the United States; othcrAvise, it
ivould not be, Avhat jt is both declared and ad
mitted to be, the supreme laAV of the people
of the United States; but might, at any mo
ment, be paralyzed in all its functions and
parts, by a factions and dominant party, in
any one State, tinder thc pretence of renova
ting their State Constitution. A ,vStato cannot
remain in the Union and claim tlie protection
of the Federal Constitution, Avithout being, at
all times, aud under all eircumstanees, sub
ject, in all respects, to the paramount author
ity of that Constitution. No portion of the
people ran, in any mode, be exonerated from
the obligations and sanctions of the Federal
(^'onstitution, and still be entitled to all its
blessings. They cannot be, in any particular,
above the supreme laAV of the Union, and still
be in the Union, and under the protection of
its striped banner. And should any person be
deemed both candid and sane, who, admittiug
the supremacy of the Federal Constitution and

the absurdity of indiscriimnating nullification
by a State, yet pretends to belicA-e , that the
people of a State, in State convention, may
disband themselves from all national authority
and rightfullj' trample uuder their feet any
principle of thc National Constitution? Such
a suicidal nostrum as that recently concocted
by a, fcAV reckless political steam doctors of
the Keystone State, for destroying thc legal
obligation of its own contracts, is ultra-nulli
fication, and Avould, if sanctioned, lay the Con
stitution of the United States at tho feet of any
discontented or unprincipled faction,to wdiicb,
in any State, accident, orfrand, or force, inight
give predominance.
The people of a State have no more right,
in any mode, than the same aggregate number
in all tho States Avould have inthe same mode, .
to control the action of the General Govem
ment; and, the only modes in which the peo
ple of the Union can constitutionally and ef
fectually operate, are just the same as those
in Avhich the people of a State may operate on
their State Constitution and laAvs — not by pop
ular or legislative resistance, but by acting on
the public functionaries, or by constitutional
abolition or amendment, as prescribed in the
fundamental Charter. And, in order thus to
control the General Government or the ,Con-
stitutien of the United States, a constitutional
majority of the States or the people of the
United States must, of course, concur. Upon
any other hypothesis, there can be no Union
or national supremacy, and a majority ih any
one State might arrogate supremacy, as to it
self, and, at any moment, dissolve the Union.
Such is not the character, such was not the
object — such cannot be the effect of the Fed
eral Constitution. It Avas popular in its ori
gin , is national in its operation, and must be
practically, as Avell as theoretically, the su
preme laAV of the land, any thing in any State
laAV or State Constitution to the contrary not
Avithstanding. And no State can judge for
itself, in the last resort, in any other sense,
than every individual citizen may judge for
himself upon all his personal and political re
sponsibilities — for a State is but the persous
Avho constitute it. In each case, and in every
case that can arise of a judicial character, tho
National Judiciary has ultimate jurisdiction,
and its judgment must be authoritative and
conclnsive This is the Constitution the peo
ple adopted — it Avas tiius universally under
stood, has ahvays thus, and only thus, opera
ted, and can not prevail or long exist unless it
has authority and power so to maintain itself.
It may appear strange that Ave have said so
much, and yet so little of what might be said,
in support of a proposition, which seems al
most, if not altogether, self-CA'ident. But au
opjiosiug doctrine having, in a certain quarter
recently sprung up under the sanction of somo
distinguished names, Ave deem it our duty to
you, Avho may bo destined to be among, that
class Avhich is fo give tone to tho coming gen-

DELIVERED BEEORE THE LAW CLASS.

301

eration, — to endeavor, by fair aud candid ar
gument, to fortify your minds against, Avhat
Ave consider, a most dangerous and indefensi
ble heresy iu American politics; and Avhicli,
if permitted to take root aiitl groAv, Avould, as
Ave believe, be almost certain, in the hands of
misguided patriotism or selfish ambition, to
destroy the fairest political fabric ever yet
constructed. Having consumed so much time in estab
lishing the vital principle of thc government
of the United Stntcs, Ave can but barely touch
its organization and the general features which
characterize it.
1st. It is .1. represenfative democracy; or
more appropriately, a Republic — Avhich is a
government mediately of tiie people or a por
tion of thc people in their natural and equal
right. It is founded on tb.e doctrine that an
enlightened and A'irtuoiis people may, under a
iuitable organization, govern themselves.
2ud. It is not only moved and sustained by
public opinion, but is so constructed as to be
able lo maintain au equable motion by coun
teracting occasional erratic tendencies of pop
ular excitements and delusions in a virtuous
and enlightened nation. For securing intelli
gence and proper dcUberation in the euaet-
mcut of laA\ s, the people are represented by
a complex legislative body, sufficiently large
to know and to speak the interest of all, and
not too large for proper deliberatiun and a due
,-ense of responsibility: eomponndcd of tliree
distinct and mutually independent elements —
a popular branch elected immediately by the
people, — a .Senate chosen fur a longer term
by the State Legi-latures, — .and a I're-idont
elected A'irtually by the people — each o]JCra.-
ting as a cheek on tiie other-: and thus af
fording some seturity against igiiovaiiee, jias-
iiioii, precipitancy and eorruptiou. Lest the
popular branch might not feel a iiroper degree
of responsibility it is clceted every two years
— lest tiiat braueh; tiius popular, should act
hastily and uiiAviselv, a Senate, ronsisting of
two nicnibcvs from each State anil appointed
by State autiiority for six years, is placed as a
leiitiiiel and rhcck — and Inst hotii of those
braiiehe- might soinetliiies be impelled bypas-
sioii, tbe President is vested Avitii tiie qualified
Veto. .¦3rd. liiit a still greater sreurity is aftbrded
by distributing- the three great functions of
political jioAvcr among three eo-ordiiiate and
distinct departments, and confiding caeh func
tion separately to an independent body of
ma"i-trary^so that neither thc Legisla
ture, .Judiciary, nor Exeeutivc ran easily do
¦.vroiig Avithout being elieekcd by oue or both
of the others. An enlightened, honest, and
self-willed .hiiliciary is the Doric Column of
ihis Teiiiplc of Human .Ju.stice. It is an iu-
disjiensable consenator of tlie Constitution.
.No limitation un .LegislatiAC poAVcr eould be
enforced Avitiiout a separate judicial depart
ment. And to secure fidelity and impartiality
?6

in the discharge of its high functions, it must
be independent, to a great extent, of the other
departments, and even of popular opinion. It
could not otherAvisc be a safe and sufficient an
chor of the Constitution. And hence the Judges
ofthe U. S. are iiotelccted by Congress, nor by
the people — but are apjiointed by the President
and Senate — are entitled to salaries AA'hich can
not be diminished during their continuance in
office — have a right to hold their offices during
good behavior — and can be removed only by
impeachment by the House of Representatives
to be tried and coneurred iu by two-thirds of
thc sitting senators. And tho Supreme Court
of the United States, being established by tho
Constitution, and its jurisdiction thereby also
fixed, cannot be abolished nor deprived of
its poAver Avithout amending the Constitutiou.
The elective principle, the distribution of all
sovereign poAver among co-ordinate and inde
pendent departments, and the firm and durable
tenure of Judicial office — are political expe
dients of modern contrivance, in the efficacy
of Avhich, for preserving a just balance of
poAver and >i Avliolesonic stability and equili
brium, great confidence is felt wherever they
have been tried. Without them republican j
goyernment cannot be maintained — a» thc an
nals of all time clearly prove
4th. The powers delegated to the national
gOA ernmeut are altogetiier such, and such only,
as concern the foreign intercourse and exter
nal rights of all the States as one aggregate
and united nation, and as are necessary also
for preserving harmony and union among the
States. And botii the general and thc indi-
\idual State govermnents arc expressly pro
hibited from doing anything AA'hich they could
not do Avithoiit transcending their respective
spheres and frustrating the ends ofthe Union.
But, for all purposes in Avliicli the citizens of a
siimle State are alone concerned, each State
retains its original andiinimpaired soA'creignty
— excepting only tliat, in a coUision bctAvcen a
state and thc I'nitod States as to their respective
poAvers, the latter must neecssarily decide in
tiie last resort. Then, of course, for all the
pur])Osc- exclusively local, tiic several States
coiistitifte a union nearly federal — and for all
ends eumnion to all, they constitute but one
single, consolidated, national govcraracnt.
And it is e^'idellt also that thc Constitution of
the United States is also popular in its origin
-partly federal tind partly national in its
structure, and pericctly national in its opera
tion. One branch of Congress represents the
whole people of the United States— and the
laAvs of Congress are addressed to thc people
of thc United States.
The several States derive security aud
strength from their union, and from the action
of the general govermncUt; and that also is aid
ed and secured by the existence and co-opera
tion of thc several State Goveraiuente. In a
territory so extensive and diversified, neither
could es;i6t in purity, hannony or safety, with-.

201

INTBODtrCTORT ADDRESS

out mutual co-operation in their respective
spheres. Together, they are the solar System of
politics — the centripetal attraction tends to
consolidation — the centrifugal, to dissolution
— but as long as their equilibrium, as arranged
by the fiat of the people, shall be preserved,
order, harmony and reciprocal blessings Avill
be their joint offspring. It is obviously the
interest of the people, therefore, to preserve
the proper and necessary relation and poAvers
of the one as well as of the others. And con
sequently thc federal constitutiou should be
construed, not as a penal statute, or even a
deed, butas a beneficent system of government
instituted by the people for cementing the
Union and preserving their liberties. And
such an interpretaton and effect should be
given to itjis to. enable it to effectuate all the
great ends of its institution and adoption.
.5th. The Constitution of the United States
cannot be regularly altered, revoked or abol
ished Avithout the concurrence of a majority of
the people in three-fourths of the States of
the Union. This anchorage gives it stability
and elevates it far above ordinary legislation.
And Avithout such a provision or some similar
one, it could not have the proper effect of a
fundamental and paramount laAv. If it could,
^at any moment, be ch.anged, or destroyed, or
controlled by any one State, or by a majority
of the people of the United States, it could not
possess sufficient stability or authority. Its
peculiar value arises from its inviolability and
the great difiiculty of altering, or destroying,
or evading it.
These arc the only general feitures of the
Constitution which we have time uoav to notice,
in even the most summary manner.
This Constitution asi it is, has, so far, not
onlyfftlsifiedthe predictions ofits foes, butgen-
erally fulfilled the expectations of ils friends.
It has hitherto shewn, and as long as it shall
work well, Avill eontinue to shoAV — Avliat A^'as
never before discovered — the true limits AA'ithin
Avhich popular governineut may be both prac
ticable and safe — and tho kind and degree of
democracy vyhieh may be compatible Avith the
proper authority of govemment, thc order of
society, and the security of' personal rights.
It is our sacred duty to ourselves, and lo
jiosterity, and all mankind, lo preserve this
Great Charter, in its original jiurity and har
mony, and tu transmit it to our successors unim
paired, and, as far as possible, improved in its
form, and strengthened in its authority.
The proper means for securing this great
end arc both political and moral, and arc so
various that the proprieties of tho jiresent oc
casion Avill not alloAv us to do more than bare
ly to allude to sueli of them as are most prom
inent. 1st. The more essential of the political
means .are — first, inherent in the struetnre of
the federal and State governments — all framed
and intertAvined in such a manner aa to make
it the interest of each fo support and aid the

other in the proper exercise of its proper
authority, and to render it diflicult for either
to encroach on the exclusive sphere of the
other and maintain the usurpation — and sec
ondly, and chiefly, in an honest, enUghtened,
and pnident adminisiration of the poAvers of
each, WITH THE SINGLE VIEW OF
PROMOTING THE PUBLIC GOOD; and
the poAver to correct, in the proper mode and
in due season, any incongruities or innate vices
which a matured and rational experience may,
from time to time, develope in the fabric of the
federal Constitution; and the faculty also, of
ahvays upholding its principles and supremo
authority by enforcing prudently, fearlessly
and undeviatingly, its oAvn necessary and in
dependent poAvers.
2nd. But, for this end, moral means also
are indispensable. Our Goyernments being
thc offspring and creatures of public opinion,
arc essentially moral institutions — and, there
fore, cannot exist in purity or with proper
practical effect without the controlling influ
ence of a pervading public virtue and intelli
gence. To govern themselves rightly or se
curely, the people must not only know
hoAV to govern, but must also be determined to
govern and to do it justly and for the peima-
nent and greatest good of the AA'hole United
States. Without these cardinal qualifications
for self-government the many will necessarily
he the deluded instruments and victims of the
ambitious, selfish and deceitful feiv, Avho Avill
govern thera by fraud or by force. Union and
.Justice are the conservative principles of the
Republic as Avell as the ultimate objects of its
complex political organization. And these arc
the fruits only of common sympathies, common
intelligence, and common public virtue. The
same language — the same religion — the same
color — kindred origin — common interests, com
mon glory, and common destiny — are strong
and peculiar ligaments of Union, never all
concurring elscAvhere upon earth; and these
arc not only srrengtheued in this NeAv World,
by thc physical adaptations of our common
country, obviously designed hy Providence for
such a civil Union — but may be greatly and
almost indefinitely increased by an enlightened
and national system of internal improvement,
for facilitating social and commercial inter
course, and vitalizing Avith the same spirit the
East and the West, the North and the South,
each a necessary part of a happy and essen
tially Avholc body politic.
But all these moral bonds, strong and nu
merous as they are, may be dissolved by the
blind ignorance or perverted passions of a do-
generate people, as casUy and almost as speed
ily as tiie attenuated Aveb may be broken by
the Avantouncss nf tiie capricious ipider that
Avove it.
The moral improvement of our rountrynien,
and especially of uur ehildren, is far more im
portant than the physical improvement of our
country, and not only will insure thc latter.

DBLIVBRBD BBPORJB THB LAW CLASS.

303

will be honored, and charlatanism and vice I and gaming, and tippling and swearing, and
but is the only means of ensuring it, as well other fashionable vices, is only a partial illus-.

other aud more desirable ends of human
power and true human glory.
Our fundamental institutions arc excellent
— but they are not perfect — they have most of
the elements of prolonged existence — but they
are not indistructible. They will totter with
the decay, and must perish with the extinction
of the public virtues which gave them birth,
aud have, iu a manner, hitherto upheld them;
and they will be entombed in the same mau
soleum of departed glory and buried liberty.
It is right and rational to love our country
and revere her institutions. But let not idol
atry usurp the throne of reason, nor a Narcis-
siau fondness for form, tempt to blind delusion
or self-destruction. Such unreflecting enthu-

tration of the ancient maxim — leges moribut
servient — "the laws give way to manners."
Fundamental, as well as other laws, yield to
the more supreme laAv of public taste and pub
lic sentiment. And, AA-hilst the organic and
municipal laAvs exist iu name, they are dead in
practical power, Avhen public virtue fails.
The laAvs have but little efficacy, unless they
are honestly and effectually administered.
And even in our oavu much favored country,
uuder the guardianship of our excellent Con
stitutions, Ave knoAV that, sometimes the ambi
tion of selfish demagogues, and the blind en
thusiasm of misguided party spirit, and an
idolatrous devotion to distinguished names,
have prevailed over the principles of supreme

siasm is finely satyrized by Lucian, when he laAv, and furnished cause for much distrust,
represents Plato as a A'oluntary exile from apprehension and despondence. And we

Elysium for the ideal purpose of living in his
Utopian Republic — and such visionary abstrac
tions as those of Plato have built up and pulled
down all the popular governments of the old
and monumental world. Our Republic is
more rational and solid — because, unlike all
that had preceded its establishment, it is the
fruit of experience in the affairs of men,
and is, therefore, adapted to the character and
condition of the people and the nascent spirit
of the age. But, depending for its ultimate
destiny, on the popular breath, it must sink
with the decay of public virtue, as certainly as
manners have always gOA'Ci-ned, and avUI ever
govern laws. The history of all nations and ages
of the Avorld echoes the sentiment of Horace,
Quid leges sine moribus vana proficient! — and
proves beyond question that, without proper
education and moral principles and habits, all
the pomp and circumstance of tbe most mag
nificent civil and ecclesiastical establishments,
and all the laAVs, hoAvever numerouis and good,
which legislative wisdom could enact, will be
insufficient for preserving order and maintaining
justice among meu. Montesquieu announced
a self-evident truth when he said that — "the
laws of education are the first we receive, and
should have respect to the principle and spirit
of the government we IIac under." And Ave
need not look to China or Confucius, or to
Sparta, or to Lycurgus for an exemplification
— we may find it in every age of the civilized
¦world. Plautus and others complained that,
at Rome, manners prevailed over the laws
long before the destruction of the common
wealth, Avhich fell in the struggle betAveen
Csesar and Pompey for the prize of empire; —
and it was not Caisar, but the degeneracy of
a self-confident, luxurious, and flattered pop
ulace that brought the Roman Republic to its
fatal end. We read in Tacitus that — "good
manners did more with the Germans than good
laws in other countries;" aud in Lord Bacon,
that "it is an old complaint that Governments
have been too "attentive to laws while they
havo neglected the business of education."

ought to knoAV, also, that here, as elscAvhere,
and ill our OAvn day, as in ancient times, there
is not ahvays more than one Bi-utus in a AvhoIe
tribe of "liberty men," who destroy a Cffisar
for his ambition; and that the A'aunted patriot
ism of contending parties, struggling as for the
palladium of the citadel, is sometimes nothing
loftier or better than the aggrandizement of a
foAV aspiring men, Avhose great solicitude is,
not as to "lioAv the government shall be admin
istered, but (only as to) who shall administer
it." And Ave cannot have forgotten, that
Walpole has not been the only minister Avho
Avas over put doAvn by a selfish coalition, in
the abused name of disinterested patriotism;
and that Pultney, and Cartaret, and NeAvcastle,
have not been the only leaders of parties, who,
Avhen tiiey triumphed over the antagonietparty
— out-Walpoled Walpole himself.
The causes of these things may be fqund
in the credulity, ignorance and passions of
a deluded and degraded people. And
wherever these popular elements exist, de
magogues, and not honest patriots, avUI rule;
and selfishness, and passion, and party,
and not justice or the Constitution, Avill
prevail in thc administration of the Govern
ment. This is bad enough, even if the forms
of governments shall be preserved; and it is
as certain as it is bad. But it cannot long
continue without a Nero, Avho, throwing aside
the mask of a more dissembling Augustus,
wUl trample under his idolized feet, even thc
long insulted forms of free institutions.
The only ultimate security against such
mal-administration or final destruction of our
own National Governipent, is tiie prevaUing
virtue and intelligence of the body of our
freemen. Let them possess pure patriotism,
and public virtue, and sufficient intelligence to
enable them to think rightiy for themselves,
and they Avill be sure to act for themselvc!,
as it is their interest that they should act.
And then the Federal Constitution will be
strong enough to protect the humble, the poor.

and the persecuted; then talents and virtue

!K>4

INTRODUCTORY ADDRESS,

The impotency of the laws agaiust chivalry,
¦will be rebuked and degraded; then innocence
can sleep in safety, conscience can feel secure,
the tongue may utter what it has to say, and
all honest and virtuous men may look to the
Constitution of the land as the supreme law
indeed, and feel assured that all their rights
may be left with confidence to the protection
of its broad panoply. But, without proper and
general moral culture, this Constitution, per
fect as it is, aud asmuch as it cost, must fail,
and the best hope ofChristiau man must thus
be lost.
Liberty and security can be assured only by
the integrity and supremacy of the Consti
tution and of constitutional laAvs. Rousseau
never uttered a more obvious and important
truth than Avhen he said — "A Republic is a
Govemment of LaAvs, not of demagogues or
monsters." And] the following admirable de-
fintion of a virtuous democracy, by Thucydides,
though theoretically true, has never been long
exemplified ou earth, and ncA'cr will be, until
the mass of the people shall be, Avhat they
ought to be, honest, patriotic, and enlightened
— "it (a democracy) is a government that hath
no respect to the fcAv, but to the many —
Avherein, though there be an equality amongst
all men with respect to their private contro
versies, yet, in conferring dignities, one man
is preferred to another, not according to the
reputation of his poAver, but of liis virtue; and
ia not put back through the poverty or obscu
rity of his person, as long as he cau do serAuce
to CommouAA'calth; — in which all are obedient
to the laAvSj and living not only free iu the ad
ministration of them, but alsoAvitli one anotiier
— void of jealousyiu their ordinary intercourse
— not offended at any man ¦ for foUoAving his
own humor, nor casting on auy, censure or
sour looks — they converse freely Avitii one an
other Avithout fear of pffence, fearing only to
transgress against the public."
Such a society and such a govei'ument, pre
suppose the prevalence of true knoAvledge,
and of private and public virtue approximating
auc qualization of intellectual and moral poAver.
As long as public opinion controls tiie laAvs,
and whenever the moral condition of the mass
of our ii-cc population is such as to enable a
favored aud selfish fcAv to create or give tone
to that opinion, tiierc can be no constitutional
or legal security; public functionaries will not
be selected for their merit, hut for their obse
quiousness and destitution of principle; vulgar
partyism, altogether personal, , will prevail;
public trust.f will be prostituted to iicrsoual
aggrandizement; public agents instead of hciug
controlled by, will control public opinion; and j
the offices and public property of the people
Avill be considered as spoils by tiic dominant
party; and yet all Avill be done in tiie abused
name and under the easy pretence of mock
patriotism and democracy.
Kings, and Priests, and Demagogues, aud
all men of selfish and sinister ambition liave

ever been, and will ahvays be secretly op
posed to tho dissemination, among the common
people, of the ennobling light of true knowl
edge and personal independence. Houest and
disinterested patriots and philanthropists alone,,
are sincerely desirous of the diffusion of uni
versal moral light, and practical equality and
independence. Protestantism and popular instruction Avers
coeval; and, as tAvin-sisters, they have gone
together, and co-operated iu the cause of hu
man liberty and happiness. And all history
proves, that no people can be free or happy,
unless the great body be enlightened and im
proved by proper education and discipline —
moral, physical, RELIGIOUS and POXITI-
CAL. This will be the only effectual anti
dote against the pestilent aristocracy of sinis
ter patronage; which, official and unofficial, is
the great canker of our institutions.
Let no true loA'er of his country's glory or
the happiness of his race doubt that their only
true safeguard is the virtue and intelligence
of the mass of thc people. It is the first duty,
as it is the highest interest, of the common
Avealth, to provide all necessary and proper
means for educating, or for compelling parents
to educate, in a suitable manner, every child
of the commoiiAvcalth, so far as to estabUsh
right habits and principles, and impart compe
tent knoAvledge^ of wliatever — ciA-il, moral, or
physical — freemen ought to kuoAV, in order to
enjoy as they ought and might, the comforts
and blessings of rational iiatm'e, and to pre
serve, as they should and may, their civil
liberties and political rights; and, more essen
tially, a proper opportimity should be afforded
to every citizen, howeve, poor or friendless, for
acquiring an accurate knowledge of his politi
cal rights and obligations. Such moral dis
cipline is possible, and might be made univer
sal and successful, by a iiroA'ident, enlightened
and dotenniiied public authority and patronage.
And the first civil duty of every free State'is,
to effect such an object, as far as it may be
possible, by the liberal, fearicss, and per
severing application of the proper and requisite
moans. And then it AA'ould be free indeed—
tiien its institutions and laws Avould be eft'cetual;
and then its citizens might, Avitii some truth,
be called freemen, and not, as many must be,
Avithout efficient legislation ou the "subject of
popular instruction, slaves to passion and ig
norance, and blind puppets iu the hands ofthe
more Avealthy and enlightened few, Avho must
govern them absolutely — and then tiie people
Avould become more rational, and less sensual,
more moral, more industrious, more happy,
and much more honored aud poAverful, as avcU
as more intelligent and virtuous.
Without the aid of public authority and mu
nificence an effcetual system for diffusing, in n
ju^oper iiianuor and to a proper extent, the use
ful clomciits of apopul.ar instruction, can never
exist; and, wifliout such a system practically
and universally enforced, these States will

Delivered before the law class.

20S

never do justice to the people or their institu
tions. Everything else is comparatively worth
less; this, alone, AA'IU be everything; and, Avith
out it, nothing else will avail or be secure.
Let the States of this Union but folloAv, at
once, the example of Prussia [in this respect,
and ere long, the Union itself will <be harmon
ized, Uke the fabled Memnon, when tuned and
inspired by the rays of the Sun. Aud then
Ave, of this generation who have mourned over
the symptoms of a retrograde movement in
morals, and have felt alarm at the rapacity of
the spirit of commercial and political adven
ture which, of late, has but too much, charac-
thrized our country, may hope for better pros
pects and brighter days for the Republic, and

may at last be solaced Avith an assurance that
when we shall have gone to our fathers, our
ashes and our children may repose in safety
under the unmarred flag of the Union, and the
sure protection of Avise and just laws, wisely
and justiy administered. And then, too, Ave
might Avell hope, that the Star Spangled Ban
ner may long wave, o'er this laud of the free
and home of the brave; and that, though our
Washington, and Franklin, and Madison, and
Marshall are gone, our country's hallowedflag,
at no distant day, rising higher and higher,
will float aloft Avith the blood-stained ensign
of the cross, to cheer and to guide, SjUd to bless
a regenerated WORLD.

INTRODUCTORY ADDRESS
ON THE HISTORY AND NATURE OF EQUITY-
[Belivered before the Lavr Class of Transylvania, Kovember 1837.]

WiEB 'W«, in either tha subject or the manner
of this initial address, to consult your taste in
stead of your reason, it would not be, as we
have determined that it shall be, an appropri
ate precursor to the didatic course ofthe com
ing winter.
You have come here to learn, and it is my
busiaess to try to teach — from the beginning
to the end of the session — the rudiments of the
most indispensable and comprehensive of all
the departments of human science. Law,
natural and civil, elementary and practical, is
not only multiform, but illimitable — embracing
and upholding all that is most interesting to
individual and to social man, upon earth.
And therefore, as our aim is utility rather
than show — naked truth rather than fantas
tic drapery — it is my present purpose to make
a few very plain and general suggestions con
cerning one of the branches of civil jurispru
dence; a topic which cannot be made both use
ful to the student aud alluring to miscellaneous
auditors. Oursubject, being one of dry, deep,
and complicated law, appeals to the sober and
discerning intelligenoe of the understanding,
scorns all the embellishments of poetry, and
needs none of the graces of rhetoric.
That code of unwritten reason called "the
eomnion law" established in England and
adopted, with various modifications, by all ex
cept one of our North American States, is di
vided into two primordial departments distin
guished by the incongruous titles "LAW" and
'•EQUIT'Y'." To exhibit an intelligible out
line of the nature, origin, and history of the
latter is thc purpose of this preliminary dis
course. Though its peculiar title is inappiopriate
aud delusive, and many persons, therefore,
yet erroneously look upon it either as arbitrary
and indeterminate, or as synonomous with
moral justice, nevertheless. Equity is as ccnsis-
tcnt, as well defined, and as scientific as any
other portion, of tha common law. It was, in
its rude and remote origin, as arbitrary and
capricious as the unregulated discretion of a
king or of his arrogant chancellor. But,
though, for some succeeding ages and even as
late aa the daya of Lord Chancellor Bacon, it
wai itiU immature aud altogether incontittant

¦with the certainty and stability of a knoirn
and established code of law, it has, at last,
been matured by the enlightened reason of
many consecutive generations into a beautiful
system of jurisiprudence, regulated by princi
ples of rational law, corresponding with th»
genius of our civil institutions. And now no
branch of American jurisprudence is more
elementary, and, excepting our organic laws,
none is more useful in practice, than that de
nominated equity. Still, lawyers and judges
are generally less acquainted with it than with
any other branch of elemeutary, or practical
law; and even some of these seem yet to con-
uider it as an indefinable something, above
positive law, and as uncertain as popular or
personal conscience.
Although law and equity are generally con
tradistinguished, tha one from the other, yet,
when considered with proper precision , they
are esseutially identical in principle. Equity
is law — otherwise it would be inconsistent
with that certainty and security in the admin
istration of civil aft'airs which the supremacy
of laws can alone ensure. Equity is j'usiice too;
but it is justice in a peculiar aud technical
sense; not variable, like the changing senti
ments of thc chancellor or the multitude, but
as constant as the fixed and rational principles
of civil right and civil law. In a judicial
sense that cannot be equitable which is incon
sistent with the law of the land. In the proper
sense, a court of equity can neither make nor
abrogate any rule of law; nor enforce what the
law forbids; nor relieve from that which the
laAV enjoius; nur decide otherwise than accor
ding to the principle and spirit of established
law; nor interpret a contract or a statute so as
to give to either an import different from that
which should be ascribed to it by any other
judicial tribunal — the intention of the con
tracting parties is their contract, and the in
tention of the Legislature is the law in every
forum, and should, in all, be sought and deter
mined according lo the same principles and
tests. In all these particulars, and in every
essential respect, equity is law, and law is
equity; aud each, therefore, is justice according
to the principles of civil right aud obligation.
[Equity ia but the philosophy of la^tr—th*

HISTORY AND NATURE 0F EQUITY.

807

spirit and end of the law; and it may there
fore be, not inaptly, defined to be rectified law
administered in England by the lord chancel
lor, one of the king's ministers, aud by subor
dinate courts of chancery, and in the most of
the states of the .N'. American Union by courts
of equity, in peculiar modes better adapted
to the ends of perfect justice than the technical
and imperfect remedies but tou strictly adhered
to in those ordinary tribunals called "common
law courts."
With the exception of a very few anomalies,
Uie onlv diffei'Snce between law and equity is;
not in the principlo^or rule or right, but in the
remedy merely — and is, therefore, chiefly modal
— and this remedial difference is threefold —
that is: 1st. In the mode of suit, 2d. In the
mode of proof and oftrisd; and, 3d. and prin
cipally, in the mode of relief. 1. Au action in
"a common law court" is broughtby a writ and
declaration of a prescribed form; the actor is
called plaintiff, and a perilous and vexatious
technicality is observed. A suit in equity is
instituted by a summons and a bill inthe style
of a petition adapted to the facts of the case
and uninfluenced by form or technicality, and
the complaining party is called the complain
ant. 2d. In an action in a "court of law," the
proof is generally oral by witnesses in court,
and the defendant cannot be compelled to
make any disclosure against himself; in a suit
ia equity, the proof is documentary; consist
ing 1st, "of the ansAver of thc defendant, who
may always, excepting in a few peculiar cases,
be compelled to respond upon oath to all the
material allegation of the bill; an efficient pro
cedure adopted from the modern or Justinane-
an civil law, and also from tlie ecclesiastical
cour'ii, which appeal to the conscience of the
parties litigant; and 2d, by depositions in Aviit-
ing, which may be taken by a commission or
dedimus potestatum, beyond the jurisdictionof
the court where a common law tribunal would
have no authority lo summons a witness; and
the trial in courts of equity, in imitation of
trials before the Roman Prietor and the courts
Christian, is generally by tbe court Vi/itliout
the intervention of a jury; and ,3rd, the relief
in equity, unlike that given by a judgment of a
common law court in a prescribed or an unva
rying form, whatever may be the character of
the case, is I'jy a decretal order called a decree,
either interlocutory or final, giving a full ancl
appropriate measure of justice according to
the circumstances of the case, and eft'ectuafing
the purpose for which all judicial remedy is
given; aud which, not unfrequently, could not
be done by a court which is restricted to one
simple mode of relief prescribed for and pecu
liar to each form of common law suit. A court
of equity, moreover,, may enforce its decrees
and orders, in its own way, and according to
its oAvn discretion, by attachment or otherwise;
but a court of law can enforce its judgments
by execution only. And, as to- parties and
subjects of controversy, there is also an impor
tant difference between suits in courts of equity
and actions in courts of common la^w. In a
common la^w action, none but those who have

the legal right, or against whom there is a legal
demand, can be made parties; and generaUy,
but one cause of action can be litigated in one
suit; but a court of equity, anxious to prevent
multiplicity and to make its decrees conclusive
as to all matters, in any degree connected, and
between all persons equitably interested there
in, either immediately or consequentially, and
Avlio may be anywise affected, will not only
permit, liut will require all subjects of contro
versy thus connected to be united in one suit,
and all persons thus interested or who may be
thus affected by its decree to be made co-par
ties, or antagonists parties; audit is not mate
rial, if there be opposing parties, compl'aining
and defending, whether those interested on the
same side be co-complainants and others of
them be made defendants, excepting that all
who have a joint Interest would generally bo
more appropriately associated as co-parties.
1 11 all those distinctive particulars, court-s of
equity possess an eminent advantage over
those of strict common law jurisdiction; for
example; 1st. One suit in equity may effect
the same end, Avhich several actions at la-w
might not, as certainly and cheaply, attain.
2nd. As there is no technicality in the plead
ing in equity, justice is not liable to be vexed,
retarded, or frustrated by cobweb forms in
suits in chancery, as is but too often the case
in common law actions. .3rd. The parties
having a right' in equity to mutual discoveries
upon oath, may thus establish important facts
Avhich conld not always be shown in legal ac
tions. 4tli. Tho depositions of witnesses may
bo taken in suits in equity, when in conse
quence of their remote residence, their perso
nal attendance in other courts could not be
procured. 6th. The modes of proceeding in
equity may secure an economy, aud a certainty
and security, Avhich might be, elsewhere, unat
tainable, tith. An enlightened and impartial
judge is more apt to make proper deductions
from facts than an ordinary jury, and if a
judge, sitting in equity, desire an inquisition
he can liave it for the purpose of informing
and aiding him in doubtful questions of fact;
but once having jurisdiction, he will notremit
a case tu a common laAV tribunal for trial, and
is never required to impannel a jury except in a
feAy cases, in Avhich some statute directs .t; as,
for example, where there is an is,sue of devisa-
vit vel non. And certainly there is, at this day,
and in thi-i country, no peculiar value in the
trial by jury except in criminal cases, and in
those, perhaps, of tort; in none of which, has
a court of equity,' jurisdiction. 7th. But the
most obvious and eminent advantage resulting
from proceeding in a court of equity arises
from the power to adapt the relief to the exi
gencies ofthe case. Thus, for example, whilst
for a breach of contract, a court of common
law can only .idjudge damages often inade
quate, a court of equity may compel a specific
execution; and Avhilst for fraud, damages only
can be adjudged in a common lavr actiou, a
rescission of the coiifnict, and a restoration of
property, and a reinstatement of tiie partie*
,171 statu quo, may be decreed by a court of

808

uttroduotoby address on the

equity; and thus the true spirit and end of the
law may be efi'octuated in equity, when the ac
customed technicalities in other courts m ight
not only emban'ass, but altogether defeat
them. The distinction between equity and law, as
separate departments cf jurisprudence, and
the existence of different tribunal's called
"courts of equity," in which equity only is ad
ministered, and of others called Vcourts of law,"
in which technical law alone is applied, is an
anomaly pecuUar to England and to some of
the states of our Uniou, which, aa well as the
trae nature of equity itself, can be satisfacto
rily explained and understood only by the his
tory of the common law of England, from the
origin of equitable jurisdiction; which was
first chietiy assumed by the chancellor of Eng
land, and which, after violent .and protracted
conflicts between that officer and the common
law judges, has at last attained its present ma
turity and firm establishment.
The chancellor of England noAV possesses
both legal and equitable jurisdiction; and is,
therefore, a judicial as well as a ministerial offi
cer. Anciently he had no other authority than
that which was delegated to him by the crown,
and was, therefore, ministerial or executive.
As the fountain of justice, the king had the
prerogative right of issuing original writs and
caucelling letters patent, itc, and as pafens
patriai, he had the like right to the custody of
idiots and lunatics, the guardianship of in
fants, &c.; and these being onerous to majes
ty, were delegated to his chancellor as his of
ficial organ appointed by only delivering to
him the great seal of which he is the legal de
pository. As tho powers thus delegated were
altogether prerogative, the chancellor, in re
spect to them, possessed what is denominated
an ordinary jurisdiction, coeval Avith the
authentic " history of the common law itself.
And therefore, to the extent of those delegated
powers, the British chancery was as ancient
lis any of the common law courts of England.
But at first the chancellor had no equitable ju
risdiction; this he afterwards mainly assumed,
as will presently appear: and when assumed
and established, it was called his "extraordi
nary jurisdiction," in contradistinction to his
delegated legal authority, denominated his
"ordinary jurisdiction." And lliough the
same officer acts now in both spheres, his pow
ers in each are as distinct and independent as
tiie jurisdiction of a court of law and that of a
court of equity are understood to be here.
Consequeutly, a mere court of equity here has
none of the prerogative poAvers of the chancel
lor of England, except so far as they may
have been expressly delegated by statute, —
Such courts have no inherent authority to is
sue judicial Avrits, nor to cancel letters patent,
nor to appoint guardians for infante, except
ing Avhere, an infant being a party to a suit in
equily, the judge, having jurisdiction over
the case, has the incidental poAver to appoint
a guardian ad litum,'. or a curator, to take
care of property involved in the suit; nor to
take custody of lunatics and idiots; nor to hold

inquisition as to lunacy or idiocy. The cog
nizance of .all such cases belongs to the chan
cellor of England, not as a judge in equity,
but as, the ministerial organ of the king; and
when there is an issue of fact in any such case
he cannot ti-y it, but must remit it to another
tribunal to be tried by jury. Lord Redesdale
said that "the jurisdictiou in the three case,?
of infants, idiots or lunatics and charities,
does not belong to the court of chancery as a
court of equity, but as administering the pre
rogative and duties ofthe crown;" and this ia
doubtless true with this qualification, that
when a charity is connected with an available
trust, a court of equity may, as in other cases
of trusts, take cognizance of it, but not be
cause it is a charity; for as a mere charity, the
chancellor, acting as the agent of the king,
and not as a judge in equity, had a delegated
power over it to the extent of the pre-existent
prerogative authority of the crown .
The term chancellor isboiTOwed from impe
rial Rome, where the emperor had a confiden
tial minister who acted as his register and se
cretary, and was called cancellarius, from the
circumstance, as many antiquaries believe,
that the place where he usually did his official
business AA''as enclosed by cross bars called
cancelli. In England there was a similar officer with
the like ministerial functions, long prior to tho
Norman conquest, and even from time imme
morial — to whom were confided the powers
just described, and some other prerogatives of
the crown.
But as late as the reign of Henry II, the
chancellor had no equitable jurisdiction; for
neither Glanville nor Bracion has alluded to a
court of equity as existing in his day. And
though many believe that the chancellor had,
to some small extent, assumed equitable juris
diction sometime prior to the reign of Edward
III, yet there is no satisfactory memorial of
the recognition, or even assumption of such au
thority, until the twenty-second year of that
King's reign; when the .sheriffs of London
were ordered to give notice that "all such busi
ness as', by special grace, was cognizable by
the King, should thenceforth be prosecuted be
fore the chancellor;" which was afterwards,
in the 37th year of the same King's reign,
ratified by an act of Parliament. The power
thus delegated was the arbitrary and unregu
lated prerogalive, which had been immemo-
rially exercised by the King, of redressing
grievances, and even controlling suits and
judgments, upon the petitions of his complain
ing subjects, and Avhich had, doubtless, been
occasionally delegated to the chancellor prior
to the general delegation sanctioned by the act
of Parliament. And here we have the prin
cipal reason Avhy bills in chancery ai^e yet in
the style of petitions.
But a jurisdiction, more like that now con
sidered equitable, was, about the same time,
probably afterwards, assumed by the chancel
lor. The Roman Praetor, who decided according
to rules prescribed by himself, and called jus

HISTORY AlTD NATURE OP EQUITY.

309

lumorarium, exercised au arbitrary discretion
in overruling that which ho deemed harsh or
unjust, and supplying whatever he considered
defective in the positive law. The emperor
¦Augustus, by one of his imperial edicts, or
dered the Prjetor to enforce the secret trusts
which, under the name of uses, had been fre
quently contrived for the purpose of evading
the law restricting testamentary dispositions
of property to certain persons, for whose use
the dying owner, in order to effectuate his own
wishes, ieviaed it, with a secret trust to an
other. But, as there was no power to compel
a discovery — the remedy thus prescribed by
Augustus was frequently unavailing — and
therefore an edict of Justinian, following the
example of the ecclesiastical courts, empow
ered the Prmtor to compel the respondent to
answer the complainant on oath.
Sometime in the reign of Edward III, for
the purpose of evading the mortmain acts, the
ecclesiastical party in England resorted tothe
Koman device of uses, which afterwards, du
ring the desolating civil wars between the
houses of York and Lancaster, were adopted
by both parties as a common mode cf convey
ance, to secure the beneficial interest in lands
from forfeiture to the successful party; and
those trusts, though not recognized by the an
cient common law, which protected the legal
title only, were sustained and enforced in
England by the chancellor, who, being in
those days, an ecclesiastic and instructed in
the civil law, adopted many of its principles
even though they confiictied with those of
the common law. The chancellor of Eng
land framed and issued writs in all actions
in the common law courts; and when, by
the extension of business, the expansion of
commerce, and the progress of social devel
opment, the anciently prescribed forms became
unsuitable for new cases, he refused to pre
scribe a new and appropriate form of legal
process, and chose rather to administer relief
in his oAvn court on petition to hiiUself as
chancellor. And this was, doubtless, one of
the Sources of his jurisdiction in equity. The
first case in equity of which the British ar
chives, as far as hitherto explored, furnish any
authentic history, occuiTed iu the reign of Rich
ard II, and was a case of trespass, in which the
chancellor interfered aud controlled a common
laAV court, and relieved the petitionei', on the
alleged ground of the partiality and sinister in
fluence ofthe sheriff. This, though not allo^wa-
ble now, was at that day, only what the king
had been iu the habit of doing upou petition to
himself antecedently to the delegation to the
chancellor of the once unlimited royal pyerog'
ative of redi'essing grievances.
But such cases, and even those of trust,
which may have been acted on by the chan
cellor prior to the fifth of Richard II, must
have been, not only rare, but exparte, and
therefore, according to the notions of more mod
ern times, extrajudicial; because, until that
year, there was no mode of compelling the
appearance of the party complained against.
But during that year John 'Waltham, bishop
27

of Salisbury, who was keeper of the rolls,
adopted, for the first time in the chancery
court, a summons for, compelUng — under a
prescribed penalty, and therefore called a
subpoena — an appearance and answer upon
oath. And from that time the equitable juris
diction of the chanceUor was rapidly extended,
until, tho' it was not only unregulated, but had
to a groat extent been usurped, and, therefore,
had awakened the jealousy of the common law
yers, it was legalized by the statute of seven
teenth, Richard II, to the extent to which it
had been previously either delegated by the
King or usurped by the chancellor. After
wards, the chancellor, encroaching more and
more, on the courts of common law, and de
ciding according to' his own caprice^ without
regard to any fixed rule or uniform practice,
a statute of 4, Henry I'V", declared that judg
ments should be irrevocable in any other mode
than by writ of error or attaint. But contin
ued extensions and encroachments by subse
quent chancellors having occasioned the cele
brated controversy between Lord Coke, then
chief justice of the King's bench, and chan
cellor EUesmere, King James and his coun
sellors determined that, though the chancellor
should have no power to reverse or overrule a
judgment of a common law court on the
ground of error, he might, by acting on the
person of the creditor, enjoin the enforcement
of his judgment if there should be any equita
ble ground, not available in the common law
court, for enjoining it.
Cardinal Wolsey, who was, for some time,
in the reign of Henry III, chancellor of Eng
land, greatiy extended the equitable jurisdic
tion of that court; but his decisions, though
generally approved, were as arbitrary and ca
pricious as his own will.
And though Sir Thomas Moore, who suc
ceeded Wolsey, and was the first chanceUor
who had studied the common law, and Bacon,
an enlightened lawyer and philosopher, who
was afterwards chancellor, endeavored to reg
ulate equity by principle, and thus to give it
something like system and certainty, it was
not matured into anything like a science, but
was considered as, in a great degree, arbitra
ry and unlimited, until Lord Nottingham,
(Sir Hineage Finch,) who was, for nine years,
chancellor in the reign of Charles II, brought
it from chaos into comparative order and con
sistency. And from his day the chancellor's
decrees in equity, which had neverbefore
been reported or admitted to be binding as
precedents, Avere regarded as authoritative —
and thus Lord Hardwicke, and Lord Somers,
and other distinguished chancellors — all em
inently learned in the principles of both the
common and the civil law, foUo^wing, as far
as they should have done, former precedents,
and always deciding according to their judi
cial notions of principle and analogy— -finally
established^ upon the combined principles of
the civil and the cdmmon law, an harmonious
and authoritative system of equitable juris
prudence, deemed far superior to either of the
elements of which it is compounded.

310

INTRODUCTORY ADDRESS ON THS

And now, as already suggested, the chief
difference between a court of law and a court
of equity is, that the former is restricted in its
proceedings to prescribed forms, which are not
unfrequently insufficient for fulfilling the end
of the law and securing a full measure of jusj
tice according to the spirit of rational jurispru
dence, and the other, looking to the aim of the
law, adapts its remedies, and its modes, and
its measure of relief to the exigencies of each
case, and administers that justice which it
Tvas the object of the law to secure. The hi-
per-technicality of the ancient common law
courts of England, and their punctillious ad
herence to forms and remedies often inappro
priate and inadequate, induced the Chancellor
to assume a jurisdiction which the public
opinion finally approved and sustained, and
which, when regulated, as now, by the princi
ples of law, subserved the purposes of justice,
and remedied a defective and often perverted
judicial administration, without either sub
verting the policy or frustrating the spirit of
the common laAV, or shaking that stability
which can be secured only by the supremacy
of an established and known judicial system.
ITo despotism could be more intolerable or vex
atious than that of arbitrary and erratic dis
cretion ; and therefore equity would be a mon
ster, if, as in its infancy, it ,were now either
lawless, capricious, or uncertain. But
enough has been already said to prove that
equity is not now, in England or America,
what it was prior to the time of Lord Notting
ham, and in the days of Grotius and of Poffen-
dorf, nor the laximenium legis of Cicero — and
to show that distingiiished jurists in modern
times, feeling the necessity of uniformity and
stability inthe judicial administration of jus
tice, and co-operating with the spiiit of the
age in which they lived, have finally succeed
ed in circumscribing equitable jurisdiction and
power, within rational and well-defined
bounds, prescribed by principle and analogv;
and have thus blended the harmonies of the
common and the civil law — each the offspring
of a prolonged existence and rectified reason,
that belong to no single age ofthe world.
Even at Rome, the various rules adopted by
different Praetors, and especially the prece
dents of successive judges of that class, to
whom trusts or cases Jidei commissa were con
fided, were, in the progress of time, collated
and made authoritative and binding by "the
perpetual edict."
But no system of equity ever equalled that
matured by the wisdom of the Anglo-Saxon
race, and which we are now eonaidering.
Equitable jurisdiction, as now here and in
England established, is limited to civil cases
arising from contract express or implied, and
is well defined by plain and inviolable rules.
1st. The jurisdiction of a court of equity is
either preventative or remedial. As prevention
is better than cure, and preventive justice
therefore not only is better than that which is
punitory or retributive, but is the ultimate ob
ject of all human law; and as courts of mere
law, — though anciently they used, to a very

limited extent, some imperfect legal remedies
called brevia anticipantia, for staying impeud
ing wrongs — would not, to any general or very
useful extent, interpose for preventing injury
or loss — .courts of equity have assumed juris
diction for that purpose in cases in which
there is danger of a loss that cannot be fully
and certainly repaired by an ordinary legal
remedy, and which are therefore all fit sub
jects of an anticipating equitable cognizance
upon bills quia timet, so called because the
complainant fears some irremedial damage,
which therefore ought to be prevented. T.hus
a court of equity will compel the suiTender and
cancellation of a forged or satisfied obligation
— because otherwise an unjust use might be
made of it after the death of the apparent
obligor, or a loss of his proof; and, for the like
reason, a court of equity wUl enjoin a tres
pass whenever the damage would be irrepara
ble, or the remedy in a court of law inadequate
— and will, ' on the same ground, enjoin waste,
or the sale of a copy right, or the abduction or
destruction of property of a peculiar Aralue to
the owner; in which cases a jury could not ful
ly estimate the damage sustained by ,the in
jured party, if the apprehended wrong should
be done — and in which, there is no adequate
remedy in a court of technical law: and thus al
so a person who owes a debt, demanded by sev
eral independent aud antagonist claimants,
strangers in law to each other, may, by bill in
equity, compel the claimants to interplead
so as to secure himself against the danger of
being forced to pay the same debt more than
once, which, without the aid of a, court of •
equity, might be the case, as judgment in favo
of one stranger could not be pleaded in bar of
a suit by another for the same demand.
These few illustrations are sufficient to show
the nature and value of the preventive juris
diction of courts of equity.
The remedial power of equity is either ex
clusive, concurrent, or auxiliary.
1st. "The jurisdiction of a court of equity is
exclusive, when inforo conscicntuE, or accord
ing to universal law, there is a right which
(except in a few peculiar cases) is not incon
sistent with either the prohibitions or poUcy
of the local positive law which, being sUent
respecting such a right, or not clearly recog
nizing it, affords no remedy for enforcing it.
This branch of jurisdiction may be iUustrated
by express teusts, which, being the creatures
of equity, and neither recognized nor prohib
ited by the strict common laAv, will 'be en
forced by a court of equity only. Id such
oases of trust, and in many other cases de
pending on the same principle, it is said that
there is an equitable, but no legal right; yet
this distinction is not essential, but mod^ on
ly; for, in the substantial and ultimate sense,
equity is law, and that which is equitable ia,
and of course must be, sanctioned by tha com
mon law, as now understood, though, in its or
igin, equity was an arbitrary interpolation by
the ecclesiastical chancellors of England at
first and for a long time resisted, and finally
acquiesced in by those organs of public opin-

HISTORY ANB NATURE OP EQUITY.

SU

ion and authority by whom the common law
was created, improved, and expounded. Like
every other element of the common law, equity
has graduaUy and imperceptibly grown and
expanded into a broad, deep, and refreshing
stream, whose sources, being small, various
and distant, are almost as obscure and legen
dary as those of the NUe. And the characteris
tic distinction now recognized between equity
Mid other law is, that the one is common law,
fiirst introduced and adopted by chanceUors,
and administered by tribunals called courts of
equity, and according to the liberal priuciples
and flexible modes of civil law, and the other,
modified and improved also by judicial legis
lation, is administered by other courts denom
inated courts of law, and according to the
inflexible forms of the more technical common
la^w. Thus, though once there was no such
available right as the equity of redemption,
which was first established by courts of equi
ty, and though also that right, however un
doubted now, is called equitable and not le
gal, neverihelesa it is recognized and upheld
by the modern common law; othenvise it could
not be enforced by any judicial authority.
But the remedy being still, as at first, in a
court of equity only, the right itself, though
sustained by law, is called equitable, in contra
distinction to that class of rights which, being
enforcible according to the modes peculiar to
the common law, are therefore distinguished
as legal. And thus also the modern right to a
specific execution of a contract — having been
first recognized by courts of equity and being
enforced only .by bill in chancei^y — is called
equitable merely — but certainly, in the com
prehensive and more effectual sense, it is a le
gal right — that is — a right sanctioned and up
held by the common law, as now existing and
understood. In all such cases of right recognized by the
common law, but not enforced or protected ac
cording to its peculiar forms of proceeding in
courts of strict and technical law, a court of
equity has yet, as at first, exclusive jurisdic
tion. .
Sad. In some classes of cases in whicn a
right was first recognized by courts of equity,
and ¦was enforcible in no other forum, the com
mon law courts, becoming more liberal and
enlightened than they once were, and follow
ing the example of courts of equity, have
adapted their remedies to the cases, and now
exercise a concun^ent cognizance over them.
Thus, though anciently a court of law would
not sustain an action ou a lost bond, because
the forms of pleading required profert which
could not be made, and therefore, courts of
equity assumed and once exercised an exclu
sive jurisdiction to give relief to the obligee,
now an action of law may be also maintained
 and, therefore, as the assumption of juris
diction by a court of law will not oust the pre-
existent jurisdiction of a court of equity, the
case of a lost bond is now one of concurrent
cognizance by courts of law and courts of
equity in either of which the obligee may
efect to sue— but, having had a final decision

in one of them, he cannot sue again in the oth
er for the same cause.
But there is another class of cases in which,
though the common law never withheld its
peculiar remedies, yet, as they were not always
adequate or effectual, courts of equity assumed
a concurrent juysdiction for the purpose of ef
fectuating the true object and spirit of the law,
which the common law forms could not always
do. Thus, as fraud, from its very character,
may escape detection unless the injured party
can have the benefit of a discovery from the
fradulent party upon oath, and as moreover a
rescission of a fraudulent contract, and a con
sequential restitution may be important to
justice, and the common law formS'' are not
adapted to such an end — therefore courts of
equity assumed and now possess, concurrently
with courts of laAV, jurisdiction in most cases
of fraud.- So, too, in a case of mutual ac
counts, difficult to prove without a discovery
on oath by the parties themselves, and in
which also there is an implied confidence or
trust, courts ofequity have assumed and now
exercise a concurrent jurisdiction, because the
legal remedy is not perfectly adequate.
3rd. Sometimes a court of law, resteicted by
its forms, eannot effect fully or certainly the
end of its o'wn exclusive cognizance of an ac
tion pending before it— and to supply siich a
defect in the administration of justice by such
a tribunal, a court of equity may, so far as may
be necessary and consistent with the prindplei
of law, interpose iu aid of the law court* and,
hy exerting its peculiar and extraordinary
powers in effectual modes, give efficacy to the
law. Thus, when property involved in litigation,
in a common law action, ia in danger qf de
struction or abduction beyond the jurisdiction
o( the court,, a couit of equity may, en a bill
containing appropriate allegations, etijoin tho
removal or destruction of it — and thus also a
court of equity may compel a party to an ac
tion at law to make discovei-y of facts material
to the issue, aud to be used as evidence on the
trial of it — and, after a judgment, may compel
a discovery of property subject to execution, or
remove incumbrances and extinguish fraudu
lent liens, in subservience tothe common law
remedy by execution; but a court of equity
wUl not interfere in these latter cases, unless
the complaining party will show that he had
tried ineffectually a/«H facias, aud thus shoAv,
prima facie, that the ordinary legal remedy is
insufiicient^-nor, as no couft can subject that
to executian which the law has exempted, can
a court of equity, iu aiding a common law
court in enforcing its judgment, compel a dis
covery, or decree the subjection to, execution
of property not liable to levy and sale, accord
ing to common or statute law; a right to dis
covery alone gives jurisdiction; and upon dis
covery a court of equity can only compel the
production of the property so as tobeleAjied
on; and can thus only aid the common law
Judge to do that which he would have a nght
to do if his officer could, without the aw Of a

iS12

INTRODUCTORY ADDRESS ON THK

court of equity, find and seize property liable
to execution.
As the iurisdiction of a court of equity, as
now established and defined, arises chiefly
from the defectiveness or unsuitableness ofthe
prescribed remedies in a court of law — is lim
ited to the end of seffectuating the true spirit
and design of the law — and cannot be extend
ed beyond what may be comprehended within
the genius, policy, and aim of the law — it may
be tested by three general facts. 1st. If, ac
cording to universal law, npt inconsistent with
the positive local law, there is a right but no
remedy in a court of law, a court of equity may
take cognizance of the case, and has, of course,
exclusive jurisdiction. 2nd. If there be both a
right and a legal remedy, or, in other words,
a legal right in a particular class of cases, but
the remedy in a court of law be doubtful, or
difficult, or inadequate, a court of equity has
concurrent jurisdiction. 3rd. When, in a par
ticular class of cases, the legal remedy perverts
the end of remedial justice^ — as, for example,
when judgments were rendered and enforced
for the penalty, instead of the sum really due
according to the spiiit of a penal bond^ — a
court of equity may interpose, and by granting
appropriate relief, fulfill the object and inten
tion of the law, and prevent aa abuse of a per
verted legal procedure.
The only objects of a court of equity are re-
ducable to this three-fold classification.
Thus the modal difference' between equity
andlaV, aud the character of equitable juris
diction, and the objects or tests of that juris
diction, being each distributable into three
classes, we have, not only the mystic multiple
3, but the classic number 9 — and by adding
the subjects of jurisdiction, equity presents, on
its front, the sacred number 12; for the sub
jects of equitable jurisdiction may also be cola-
prehended in three classes — that is. Fraud,
Accident and Trust — each understood accord
ing to a liberal and comprehensive import pe
culiar to equity, Avhich considers fraud as actu
al or constructive — accident as any circum
stance (excepting fraud or trust) Avhich disa
bles a party, in a class of cases, from obtaining
justice by the ordinary legal remedies — and
Trust aa expiess or implied, and as, therefore,
embracing cases in which one party holds a
right for another, or to which another has an
equitable claim derived from contract, result
ing from some voluntary act, or implied by
law. The foregoing outline exhibits a very gener
al and comprehensive map of the history and
elements of that branch of jurisprudence de
nominated equity — aUd the very fact that it is
jurisprudentialshows that itis an estabjished
and defined system of principles as authorita
tive and inviolable as the law of tho land.
Being engrafted on the common law, there
may be no good reason why, like other depart
ments of jurisprudence, equity should not now
be administered by all coUrtsoflaw. "A court
of Equfty," proceeding without form, and de
ciding according to one set of common law
principles, and "a court of Lavi" restricted to

prescribed forms, and deciding according to
other principles ofthe same code, in the same
country, and with an essentially different ef
fect, exhibit a singular and rather vexatious
anomaly. In Louisiana, where the civil, and
not the common "law, prevails, there is, of
course, no such distittction as that between law
and equity — and in Pennsylvania, where
there are no courts of equity, justice is admin
istered by the sanie court, according to both
equity and law. And were this the case 'uni
versally, the almost incomprehensible distinc
tion between Law and Ejaify would not exist,
but American jurisprudence would be under
stood to be a homogeneous system, operating
equally and alike in every forum.
However arbitrary and unauthorized may
have been the first encroachments on the com
mon law courts, and the modifications of the
commen law itself by the clerical chanceUors
of England, there can be no doubt that the ul
timate result of the innovation is a very great
improvement of our complex civil code, miti
gated and liberalized, as it now is, by princi
ples transplanted into it from the civil law by
ecclesiastical authority, and which would nev
er perhaps have taken root in its uncongenial
soil, had not the first seeds been planted and
watered, and sheltered by the hand of ai-bitia-
ry and lawless power — and thus, by clerical
usurpation, the rough and simple genius of the
ancient common law has been greatiy refined,
invigorated and expanded.
But, as already suggested, there are even yet
some anemalies in equity; and it is therefore
not universally true, that a court of equity has
no power to decree relief contrary to the doc
trines of the common laAV. There are some
few cases in Avhich, though the civil and com
mon law conflict, the one is administered in a
court of equity, and the other alone prevails in
a court of law. Thus, though according to the
common law, as inflexibly enforced in a court
of mere law, a married Avoman can neither
make a valid contract with her husband, nor
own separate property in her own independent
right, yet in a court of equity, (the doctrines
of the civil law there prevailing in such cases)
such contracts and such rights may be recog
nized and enforced, — thus also, a bona fide
sale of a chose in action, though void accord
ing to tho common law, is valid and available
in a court of equity — and thus also, certain
trusts, denominated executory, are construed
and enforced according to the intention ofthe
parties, though in a court of laAv the arbitrary
applicaton of technical rules may give them an
essentially different eft'ect,
With these and some fcAv other similar ex
ceptions, equity and law are consistent and
identical in principle and object, and differ on
ly in remedial power and effect.
But though the discretion of a chanceUor is,
in no degree, personal or arbitrary, but is es
sentially judicial, it is nevertheless regulated
by some rules and principles peculiar to equi
ty—the chief of which are -the following: 1st.
That he who seeks equitv must first himself
do equity. Snd. That a complainant must

HISTORY AND NATURE OP EQUITY.

213

come into court with clean hands — that is, he
must have been fair, just and punctual. 3rd.
The vigilant only, and not the supine or neg
ligent, are entitled to the consideration of a
court of equity. 4th. A court of equity will
not enforce a penalty, or forfeiture, or an op
pressive contract. Sth. A court of equity will
not compel a bona fide purchaser to make dis
covery, nor permit an infant to be prejudiced
by the negligence of the procihien amy or guar
dian ad libem, nor take a bill for confessed
against infancy. 6th. Por many practical ends,
equity considers that as done which oUght to
be done.
7th. As already suggested, whenever, ac
cording to rational law, there is a right neither
recognized nor interdicted by the Saxo-Nor-
fiian common law, a court of equity wUl up
hold it, and the judicial discretion ofthe chan
ceUor is governed by the code of universal rea
son and natural right, as understood and de
fined by elementary ¦writers and eminent ju
rists. 8th. Reciprocity and conscience limit the
discretion of a chancellor in affording or with
holding remedy in cases^ — especially of concur
rent jurisdiction — and the rescission and spe
cific execution of contracts wiU present appo
site illustrations of this kind of equitable dis
cretion. Thus a court of equity cannot rescind
a contract on fie single ground of inadequacy,
unless it be so gross as^er se to indicate
fraud — ^but if the party, who is most to be
benefitted by an unequal executory agree
ment, sue for a specific execution of it, the
court may, on the ground of hardship alone,
refuse to give relief, and remit the complain
ant to his ordinary legal remedy, which, in
such a case, may be deemed all sufficient for
the purposes of justice contemplated by the
spirit of the laAV. In such a case the chancel
lor has no discretion to relieve a party from
the legal obUgatiou of a contract which was
voluQtary and uninfected by fraud — and yet
he should not use his extraordinary power for
enforcing it, when the legal remedy is deemed
sufficient for all the ends of full and perfect
justice. 9th. 'When parties are in equali jure, the de
fendant must prevail — and when equities are
equal in quality, the oldest is preferred accord
ing to the maxim — qui prior est tempore potior
est jure.
10th. Equity not only follows the law, that
is, the principles and analogies of the law,
but it has also adopted rules partly analogical
and partly peculiar respecting the limitation
of suits bjr time.
No statute of limitation, being, in terms, ap
plicable to suits in equity, no statutory limita
tion can apply propria vigore to courts of
equity. But those courts have, upon a prin
ciple of analogy, voluntarily adopted the stat
ute of limitations in all cases of concurrent ju
risdiction, and apply it in such cases, except
ing in those of fraud and mistake, precisely as
it applies to the concurrent remedy in courts
of law. But as, in such cases, it was adopted
voluntarUy, it was but reasonable that it

should be so qualified as to operate justly au d
consistently with the spirit and end.of all stat
utory bars — and, therefore, in cases of fraud
and mistake, in which there may be either au
action at law or a suit in equity, time in equity
will be computed only from the discoveiy, and
not, as in a common law action, from the per
petration of the fraud.
Cases of exclusive jurisdiction in equity are,
in respect to the application of the statute,
of two classes — the first class embracing those
cases in which, if there couM be any legal rem
edy, it might be barred by tha statute; as, for
example, a superior equitable right to land,
of which the holder of the legal title had been
adversely possessed for 20 years after the
equity accrued — and the second class consists
of all those cases in which, had thera been a
legal remedy, it would not have been subject
to the operation of the statute; as, for example,
an express trust or a mortgage, unaffected by
either proof or presumption of an adverse pos
session in fact. In the first class, the statute
applies just as it would against a legal reme
dy; but in the second class, it may operate
and can only operate presumptively.
When the only dift'erence is in the form of
remedy, the modern law will apply the statute
of limitations as a presumptory bar to a suit
in equity, whenever, ou the same facts, it
would be so applied to an action in a different
forum, if such were the remedy for the same
cause. This is what is called the adoption of
the statute by analogy.
But when the statute would not have ap
plied effectually as a bar to a legal, it can nev
er bar an equitable remedy for the same cause
of suit. This, too, is analogy; and the class of
cases most fitly illustrative of this branch of
the modern doctrine, is that of mortgages aud
express technical trusts. Let us, for example,
take the case of a suit to foreclose a mortgage
20 years after the debt became due, the mort
gagor having, all the time, retained the posses
sion of the mortgaged land. If an action of
ejectment, to place the mortgagee in posses
sion, had been brought, the lapse of 21) years
would not have operated per se as a statutory
bar — and therefore the same fact cannot so op
erate in the suit of equity to foreclose. But in
both cases — and in each equally and alike —
time would operate as a presumptive bar. The
reason why time would not, in either case, op
erate as a statutory bar, is because the posaea-
sion, in its origin, was under the mortgage, and
therefore amicable, and not adverse, unless
proved to have become so in /"c* — and such
proof may result from an ostensible possession
m fact, in the character of owner, and not as
mortgagor, or from a presumption of law aris
ing from the lapse of 20 years unexplained.
But such a presumption does nat operate in
flexibly, like the statute, which can be eluded
only by proving some exception provided for in
its saving clause— but may, be repeUedand
defeated by proof of any fact inconsistent with
the legal presumption. , » ,
The lapse of 20 years is now the fixed peri
led oiprima facie legal preBumption, in all com-

214

INTRODUCTORY ADDRESS ON THE

mon law remedies, whatever may be the form
of remedy or mode of reUef. Aud, therefore,
in an action on a bond which had been due
more than 20 years, though the defendant,
could not here availably plead any statute of
limitations — nevertheless, if he plead pay
ment, the court will instruct the jury that the
lapse of 20 years unexplained is presumptive
proof of payment, and that, in the absence of
any countervailing fact, thejr should find for the
defendant. But proof of a partial payment, or of ac
knowledgment of the debt, or of inability of
defendant to have paid, within the 20 years,
may be sufficient to repel the legal presump
tion, and entitle the plaintiff to recover.
So, in a suit to foreclose a mortgage, if the
mortgagor plead payment or release, a con
tinued possession by him for 20 years after
the debt became due, would, unexplained, be
presumptive proof of the payment or release,
and the law would then also presume that his
possession had, from the time payment Avas
due, been in his own right, and not as mort
gagor. But, as in the suit on a bond, proof
by the mortgagee of any fact inconsistent wi th
these legal presumptions, might be sufficient to
repel them, and entitle him to a decree.
The same principle applies to every suit in
equity, by a beneficiary against his trustee,
who had been in possession more than twenty
years. Butiu all such cases, proof of adverse pos
session in fact, openly and ostensibly held
for SO years, would make the time operate aaa
statutory, and not merely as a presumptive
bar, however tortious such conversion and
usurpation or breach of trust may have been ;
for in every such case, the party wronged
had a known cause of suit, and from the mo
ment of its accrual the statute commenced
running; and the possession being adverse, and
the only difference being in the form of suit,
analogy applies the limitation in equity just
as it would/ have appUed as a bar to a legal
remedy, had any such been appropriate.
We may now see how material the dif
ference is between a statutory and a presump
tive bar, and how indiscriminating and delu
sive are those dicta which suggest that, as be
tween mortgagor and mortgagee, the posses
sion by cither of these for 20 years operates as
a statutery bar against the other.
But still, as policy and uniformity require
that even in such cases there should be some
fixed rule of prescriptive limitation, courts of
equity have, in imitation ofthe statutory limi
tation to the right of entry, adopted 2p years as
the period of legal presumpiton against a dor
mant equity; but ¦which period, unlike the
period adopted in cases of concurrent remedy,
does not, in such acase, operate inflexibly as
a statutory bar, but only presumptively; and
therefore any fact that will rebut ihe arbitrary
presumption thus arising from the lapse of 20
years, in a case of the second class, exclusively
cognizable by a court of equity, will be suffi
cient to defeat the prima facie bar to tha suit.
The foregoing ia a very imperfwt aud gen

eral sketch of the history and principles of
equity in England. It exists and is practised
in most of the States of our Union substan
tially as in England, whence, at different
times, and with various modifications, it has
been adopted here. No court had chancery
powers iu Virginia prior to 1700 — nor in New
York prior to 1701 . And equity, administered
in some of the states by distinct courts, and in
others by courts, like that of the Exchequer in
England, combining both legal and equitable
powers — was not matured into a weU defined
system in any of the United States sooner than
about the close of the last century. But being
now estabUshed on principles of universal
reason and justice, which are infinite aud eter
nal, aud as expansive as the destiny of man,^
itwillp^ogi^essively improve and be improved,'"
and assimilate and be assimilated, until there
shall be but one law, in name, in substance
aud in practice — and especially in this oar
land of intellectual independence, where the
science of jurisprudence, as well as every
branch of practical knowledge, may find its
most congenial soil and vivifying snn, and
where the coming generation may achieve and
enjoy the noblest of the many moral tri
umphs of our race.
,. The vexatious delays and uncertainty to
which litigants are generally subjected in
courts of chancery, are not ascribable to any
defectiveness in the principles or pecuUarity
in thejdoctrines of equity, but result altogether
from the unsuitable organization of most of
those courts, and the loose practice which gen
eraUy characterizes them. And whatever may
be the excellence of theoretic equity, practical
equity must ever be liable to just criticism
Avithout some essential improvement in organi
zation; A^ long as our Circuit Courts in Ken
tucky shall continue to exercise, by distinct
remedies, the powers of Judges both of equity
and strict common law, suits in chancery will
be protracted, neglected, defectively prepared,
and of course, often and almost always errone
ously decided. Nevertheless, with all our prac
tical defects, which could be easUy remedied —
equity is, in many respects, even here emi
nently useful; and we cannot doubt the day is
not far distant when, by proper reform in its
administration, it will be made in practice
what it is in principle — the most just, efficient
and rational branch of the common law.
It will appear from the foregoing sketch of a
mere outline of equity, that it is law and jus
tice in a peculiar and rational sense — law in its
spirit, and justice in its essence — ^not the sum-
mum jus of the letter of the law, which, like
that of the gospel, killetii, and which there
fore is often summa injuria, but that regulated
and enlightened justice which is the basis of
all happiness, and which, therefore Cicero in
his offices, declared to the "omnium dominaiet
regina virtuium," "the mistress and queen of
all the virtues. And it will be seen also that
equity is not new what it once was in the days
of Aristotle, qf Papinian, of Grotius, or even
of Bacon — the personal, "diseretion of a good
iman" or the correctrix of that in ¦which the

HISTORY AND NATURE OP EQUITY.

915

la'w, in consequence of its universality, is de
fective" — ^but that it is mere neaily what
Blackstono defined it to be, "the soul and spir
it of all law," and by which "positive law is
construed, and rational law is made." And,
moreover, it will become manifest that equity,
as now practised in England and in these
states, has never been exactly defined by any
publicist or jurist, and is not, even now, easi
ly defined, though it may be well understood."
It may be here also perceived how — through
the principles of her civil code, blended with
the common law by courts of equity — fallen
iiome ¦wUl continue to maintain by her reason,
an extensive and indestructible empire for
countless ages after the destruction of all the
other and more pretending monuments of her
republican glory, or imperial power and mag
nificence. Nor cau it escape observation that — with
the exception only of the christian religion-
equity is the best friend that woman has, or
ever had. It does not, like the gothic common
law, destroy the separate legal existence of the
¦wife by merging it in that of her husband —
nor make coverture a state of vassalage — ^nor,
even like the civil law , give to wives incon
sistent rights and injurious authority — ^but it
wiu, to a just and rational extent, protectmar-
ried women in their personal identity, and in

the enjoyment of property and of mental inde
pendence. But we must not forget that equity — vast
and useful as it must be admitted to be — ii
only one of the many streamlets that contri
bute to the shoreless reservoir of universal
law. Even equity, and the more technical and
ancient common law combined are, to the great
ocean of all law, but like our nqhle rivers,
Mississippi and Missouri, whose commingled
volumes — limpid and turbid — though leng
distinguishable, are destined to a more perfect
union and identity in the continued no^w of
one majestic stream bearing its beneficent con
tributions to the bosom of the great deep.
And thus it is evident that, whereter the
Anglo-Saxon tongue is spoken, modern Eng
lish equity is among the most useful of the ele
ments of that copious system of civil jurispru
dence, which is the rule of civic right and du
ty — the mother of aU other arts and sciences —
the upholder of order and liberty — the conser
vator of peace — the creator and preserver of all
the social relations — the guardian angel of the
most endearing charities of domestic life — the
tutelar divinity that guards infancy, weak
ness, and innocence — and without the protec
tion of whose strong panoply this earth would
be a wilderness, our whole race savages, and
our moral world itself a cheerless, trackless,
hopeless waste.

PRELECTION.

Lexington, Nov. 27th, 1838.
' Sir — We, the undersigned, having been appointed by the Law Class
of Transylvania University, a committee to vvait upon your honor, re
spectfully request a copy of your Introductory Lecture for publicatioif,
believing it to be a just and able eulogy on the life and public services
of the late Hon. John Boyle.
Respectfully, your ob't servants,
WILLIAM T. BARBOUR,
WM. R. CARRADINE,
WM. H. ROBARDS,
M. R. SINGLETON,
Hon. George Robertson, Committee.

Lexington, Nov. 28th, 1838.
Gentlemen— Thanking you and the Law Class for your kind senti
ments, I commit to your discretion and disposal the Introductory Lec
ture, a copy of which you have requested for publication.
Yours, respectfully,
G. ROBERTSON.
Messrs. Barbour, Carradine, Robards, Singleton.

ADDRESS.

It IB the sacred duty of every generation to
preserve faithful memorials of the character
and conduct of its distinguished men. The
memory of the iUustrious dead should never
be lost in the oblivion of time. Biography is
the soul of hiatoi^y. The maxims and motives
and destinies of prominent men, as exemplified,
from age to age, in the moral drama of our
race, constitute the elements of historic phUos-
ophy, and impart to the annals of mankind
their only practical utility. When, and only
when, Ulustrated by the life of an eminent man,
virtue or vice, knowledge or ignorance, thus
personified, is seen and felt as the efficient
lever of the moral world. The lives of con
spicuous men help to characterise their day
and country, and, like sign boards on the
high- ways and the bye- ways through the wil
derness of human affairs, tell the bewildered
pUgrim where he is going, what way he should
go, and the weal or the woe of his journey's
end. Here, with trembling hand, the gifted Burns
points to the ruin and despair which lie in
ambush on the broad and voluptuous turnpike
ou which his noble genius was driven to des
truction — ^here sits the cold bust of the captive
Napoleon, scowling on the iron railway, where
the steam-car of unrighteous ambition, explo
ding with a tremendous crash, shivered alibis
gigantic hopes and projects of power — and
here, too, stands the god-like statue of our
Washington, consecrating the straight and
narrow pathway of virtue, which leads the
hones't man to everlasting happiness, and the
pure patriot to immortal renown — and here,
every where, we see exemplifications of the
vanity of worldly riches, the wretchedness of
selfish ambition, the usefulness of industry,
and charity, and self-denial, and blissfullness
of cultivated faculties, and of moderation in
all our desires and enjoyments.
The lessons, thus only to be usefully taught,
are practical truths echoed from the tombs of
buried generations in the mother tongue of all
mankind. Greece, and Rome, andPrance, andEngland,
have honored their dead and contributed to
the stock of useful knowledge among men by
graphic mernoirs of their conspicuous Philoso
phers, Heroes, Statesmen, and Bards. And
Plutarch's parallel Biographies of Greeks and
Romans, and Johnson's Lives of the British
Poets — scholastic as the one, and garrulous as
the other must be admitted .to be — are among
the most valuable of the repositories of practi
cal ¦wisdom. „ ^.- J J
But it is in our age of rectified reason and
28

enlightened liberty that the lives of the virtu
ous great who havo lived and are buried in our
own America, would exhibit the most attrac
tive models of the virtues which made them
and our country great, and which alone wiU
ever ennoble and bless the nations and coun
tries of the earth.
The Anglo-American Heroes and Statesmen,
from the Pilgrim Band of Plymoth Rock to
that more illustiious group signalized in our
memorable revolution, stand cut in bold relief
on the column of history; and the humbler,
but not less noble pioneers and hunters of Ken
tucky, and the pnmitive founders of the great
social fabric of this blooming valley of the
West, have left behind them monuments more
enduring than storied urns or animated busts.
But the personal history of most of these no
bles of their race is yet told only by the tongue
of tradition. And the story of the deeds of
many of them ia, even now among ouraelves,
listened to as romance.
Our own favored Commonwealth, though
young iu years, is venerable in deeds. Ken
tucky has been the theater of marvelous
events and of distinguished talents.
Though not more than 68 years have run
since the first track of civilization was made
in her dark and bloody wilderness, yet she
has already had her age of chivalry, her age of
reason and religion, liberty and law. She has
her battle-fields as memorable, and almost as
eventful as those of Marathon or Waterloo —
and she has had heroes, orators, jurists and
lawgivers who would have been conspicuous
in any age or country. But neither biography
nor general history has done justice to their
memories. Most of that class of them, whose
lives were peaceful and whose triumphs were
merely civic, have beeu permitted to slumber
under our feet without either recorded eulogy
or biographic memorial.
The memory of the Nicholases, the Breckin-
ridgea, the Browns, and the Murrays, the Al
lans and the Hugheses, the Talbotts and the
Bledsoes, the Daviesses and the Hardins, the
McKees and the Andersons, the Todds, the
Trimbles and the Boyles, of whom, in their
day, Kentucky was ju.stly proud, should not
longer remain thus unhonored and unsung.
Influenced by a strong sense of personal and
pubUc obligation, we wUl now attempt to
sketch a brief outline of one of these our depar
ted great. . tt ,. ¦•
Among the honored names of Kentucky,
John Boyle, once Chief Justice of the State, ie
deservedly conspicuous. Modest and unpre
tending, his sterling merit alone elevated him

S18

A BIOGRAPmOAL SKETCH

from humble obscurity to high places of public
trust which he filled without reproach, and to
a stiU more enviable place in public confidence
and esteem which but few men ever attained,
and none ever more deserved.' Though his
whole career was peaceful and unaspiring, his
life, "take it all in all," domestic and public,
exhibits a beautiful model of an honest man,
a just citizen, a patiiotic statesman, and an en
lightened jurist. The example of such a man
ia ¦worthy of imitation by all men living or to
come— and the memorials of such a life must
be interesting to all good men, and peculiarly
profitable to the young who desire to be useful
and honored.
John Boyle's genealogy cannot be traced
through a long line of ancestry. He inherited
no ancestral honors, nor fortune, nor memorial.
Like most of the first race of iUustrious Ken
tuckians, descended from a sound but humble
stock, he was tha carver of his own fortune,
and ths ennobler of his own name. His only
patrimony was a vigorous constitution, a sound
head, a pure heart, and a simple, but virtuous
education. He was born October 28th, 1774, in Virginia,
at a place called "Castio Woods," on Clinch
River, in the (then) county of Bottetourt, now
Russell or TazeweU; and iu the year 1779 was
brought to Whitley's Station in Kentucky, by
his father, who immigrated in that year to try
his fortune in the wild woods of the west-—
and who, like the mass of early adventurers,
reared in the old school'of provincial simplici
ty and backwoods equality, was a plain, blunt
man of independent spirit. The father first
"settled" in Madison county, but afterwards
moved to the county of Garrard, where he
lived on a small estate until his death.
Of the early history of the son, we have
heard nothing signal or peculiar. In his days
of pupilage, a collegiate education was not at
tainable in Kentucky. And those who, like
him, were poor, were compelled to be content
¦<vith such scholastic instruction as might be
derived from private tutors and voluntary
country schools.
Emulous of such usefulness and fame as can
be secured only by moral and intellectual ex-
ceUence, he eagerly availed himself of all the
means within his reach for improving his mind
and cultivating proper principles and habits.
After acquiring an elementary English educa
tion, he learned the rudiments of the Greek
and Latin languages and of the most useful of
the sciences, in Madison county, under the tu
telage of the Rev. Samuel Finley, a Presbyte
rian clergyman of exemplary piety and patri
archal simplicity. With this humble prepa
ration, having chosen the Law for his profes
sional pursuit, he read Blackstone's Commen
taries and a few other elementary and practical
books under the direction of Thomas T. Davis,
then a member of Congress, whom he succee
ded, and who resided in the county of Mercer,
in the neighborhood of Jeremiah Tilford, a
plain, pious and frugal farmer, -with whom the
pupU boarded, and one of whose daughters,
(Elizabeth,) a beautiful and excellent woman.

he married in 1797, about the commencement
of his professional career. His wife's estate
did not equal iu value $1,000, and his own pat
rimony was himself alone, just as he was.
With these humble means he bought an out-
lot iu Lancaster, Garrard county, on which, in
1798, he built a small log house, with only two
rooms, in which, not only himself, but three
other gentlemen, who successively followed
him as a national representative, and one of
whom also succeeded him in the Chief- Justice
ship of Kentucky, began the sober business of
conjugal life. "There he lived happily and
practiced law successfully until 1802, when,
being unanimously called to the House of
Repre.sentatives of the United States, he settled
on a farm of 125 acres, near Lancaster, where
he continued to reside untU 1811, when he
moved to a tract of land in the same coun^, a
Eart of which had been recently given to him
y his father, and whore he lived, in cabins,
until 1814, when he bought and removed to
the tract in Mercer on which his wife had
been reared, and where he continued to reside
until his death.
Here let us pause a moment, and, from the
eminence to which the people spontaneously
elevated the isolated and unambitious Boyle, let
us look back on the humble pathway which led
him so soon to the enviable place he occupied
in the affections of those who knew him first,
and best, and not one of whom ever faltered in
hia confidence and esteem.
Without the adventitious influence of wealth,
or family, or accident, and without any of the
artifices of vulgar ambition or selfish preten
sion, he was, as soon as known, honored with
the universal homage of that kind of cordial
respect which nothing but intrinsic and unob
trusive merit can ever command, and which
alone can be either gratifying or honorable to
a man of good taste and elevated mind. It
was his general inteUigence, his undoubted
probity, his child-like candor, his scrupulous
honor and undeviating rectitude, which alone
extorted — ^what neither money, nor office, nor
flattei'y, nor duplicity, can ever secure — ^the
sincere esteem of all who knew him. And so
conspicuous and attractive was his unostenta
tious worth, that, though he rather shunned
than courted official discinction, it sought him
and called him from his native obscurity and
the cherished privacy of domestic enjoyment.
His education was unsophisticated and. prac
tical. He learned things instead of names,
principles of moral truth and inductive philos-
phy instead of theoretic systems and scholas
tic dogmatisms. His country education pre
served and fortified all his useful faculties,
physical and moral — his taste was never per
verted by false fashion — his purity was'*never
contaminated by the examples or seduced by
the temptations of demoralizing associations.
Blessed with a robust coustitution, his habitu
al industry and "temperanca in all things"
preserved his organic soundness and promoted
the health and vigor of his body and his mind.
What he knew to be right he always practised
^— and that which he felt to be wrong he inva-

OP THE HON. JOHN BOYLE.

Slit

riably avoided. In his pursuit after kowledge
his sole objects were truth and utility. In his
social intercourse he was chaste, modest and
kind — and all his conduct, public and private,
was characterised by scrupulous fidelity, im
partial justice, and an enlightened and liberal
spirit of philanthropy and beneficence. Self-
poised he resolutely determined that his des
tiny should depend on his own conduct. Ob
servant, studious, and discriminating, what
ever he acquired from books, or from men, he
made his own by appropriate cogitation or
manipulation. And thus, as fai- as he went in
the cai'eer of knowledge, he reached, as if per
saltern, the end of all learning — practical truth
and utility. '
Panoplied iu such principles and habitudes,
his merit could not be concealed . In a just
and discerning community, such a man is as
sure of honorable fame as substance is of shad
ow in the sun-light of day. And have we not
here a striking illustration of the importance
of right education and self-dependence? Prop
er education is that kind of instruction and
discipline, moral, mental and physical, which
will teach the boy what he should do and
what he should shun, when he becomes a man,
and prepare him to do well whatever an intel
ligent and upright man should do in all the
rdations of soci^ and civil life; and any sys
tem of education which accomplishes either
more or less than this, is so far imperfect, or
preposterous and pernicious. But, after all, the
best schoolmasters are a mediocrity of fortune,
and a country society, virtuous but not puritan
ical, reUgious but notfanatical,indpendentbut
not rich, frugal but not penurious, free but not
licentious — a society which exemplifies thc
harmony and value of industry and morality,
republican simplicity and practical equality.
Reared in such a school, and practically in
structed in the elements of useful knowledge,
a man of good capacity, who enters on the
business of life with no other fortune than his
own faculties, and no other hope than his own
houest efforts, can scarcely fail to become both
useful and great. But he who embarks desti
tute of such tutilage or freighted with heredi
tary honor or wealth, is in imminent danger of
being wrecked in his voyage. Portune aud
illustrious lineage are, but too often, curses
rather than blessings. The industry and self-
denial, which are indispensable to true moral
and intellectual greatness, have been but rare
ly practised without the lash of poverty or the
incentive of total self-independence. And the
son who cannot make fortune and fame for him
self, will not be apt to increase or even to keep
inherited wealth andreputalion, however boun
teously they may have been sho^wered on his
early manhood. Parents should, therefore, be
solicitous to educate their children in such a
manner as to make them healthful in body
and mind, and to enable them tobe useful and
VvoBorable, without extraneous wealth, which
is but too apt to paralyze or ensnare the victims
of perverted bounty, and indiscriminating af.
f ection. John Boyle, rightly reared and unincum

bared by patrimonial trash, started tha journey
of life alone and on foot-— his own mind his
only guide, his own conduct his only hope;
and though there ¦was nothing strikingly im
posing in the character of his mind or in his
manners, but few men on earth ever reached
his earthly goal of honor by a straighter or
smoother path. During his short professional
career, he was eminently just and faithful to
his clients; and though his elocution ¦was
neither copioua nor graceful, he was extensively
patronized. Por this success he ¦was indebted
altogether to his inteUigence, integrity and
fidelity. But with much business — ^his fees
being low, and not weU coUected — he made
but little moUey. He acquired, however, that
which was fai' more valuable — the reputation
of an enlightened and "an honest laivyer."_
Translated from the forensic to the political
theater, he declined altogether the practice of
the law. In the national legislature he acted
with the Jeffersonian and then dominant party.
And though not a speaking member, he was
vigilant, active and useful, and his disinter
ested patriotism, amiable modesty, unclouded
intelligence and habitual candor, soon exalted
him to an enviable reputation. If thera be any
valid objection to his political course, it ia this
only — that, agreeing, as he generally did, with
a party armed with power and flushed with a
recent and great victory in the downfall of an
opposing and previously governing party, he
was more of a partizan than perfect justice or
abstract truth would altogether have approved.
But this aberration, which could not have been
easily avoided, was, in his case, as venial and
slight as it ever was in the case of any other
man who ever lived. He did not "give up to
party what was meant for mankind" — ^nor Tvas
he intolerant, prescriptive or factious, or ever
influencedU by any selfiah or sinister motive.
And if, when he co-operated with his political
friends, he ever erred, the ardor of his patriot
ism and the unsuspecting confidence of his
own honest mind induced him to beUeve, at
the time, that his party was right. But he
was never charged with iniincerity or obliquity
of motive. And his character was al^ways
blameless in the view even of those ¦who did
not concur with him in opinion.
If as much could be as truly said of more
modern partizans, our country would be blessed
with more honor and tranquiUty than can be
admitted to prevail in this our day of compa
rative intolerance and intellectiial prostitu
tion. Having no taste for pelitical life, and finding
moreover, that the duties of a representative in
Congress were incompatible with his domestic
obligations, he had soon resolved to retire from
the theater of public affairs and devote himself
to his family and his legal profession. But
such a man as John Boyle cannot always dis
pose of himself according to his own personal
wishes. His constituents re-elected hun twice
without competition. And we have heard that
Mr. Jefferson, who j ustly appreciated his worth,
offered him more than one federal appointment,
which either his diffidence or his romantic at-

220

A BIOaRAPHICAL SKBTOH

tachment to his family aud home induced him
to decline. But in March, 1809, Mr. Madison,
among his first official acts as President, ap
pointed him, without his solicitation, the first
Governor of Illinois. This being, as it cer
tainly was, prospectively one of the most im
portant and lucrative of all federal appoint
ments, and hia domeatic duties having become
still more and more importunate, he was in
clined to accept the provincial Governorship —
and did accept it provisionally. But, on his re
turn to his family, he was invited to elect be
tween the territorial office and that of a Circuit
Judge, and also of an Appellate Judge of
Kentucky, both of which latter appointments
had been tendered him in anticipation of hia
retirement from Congress. And though the
salary of Appellate Judge was then only
$1000, and the duties of the office were pecu
liarly onerous, yet, his' local and personal at-
tatchments and associations prevailing over
his ambition and pecuniary interest, he took
his seat on the Appellate bench of his own
State on the 4th of April, 1809 — and Ninian
Edwards, the then Chief Justice of Kentucky,
solicited and obtained the abdicated procon-
Bulship of Illinois.
The election thus made by Boyle affords an im-
Eressive illustration ofthe castof his mind and
is affections. Illinois was obviously the bet
ter theater for an ambitious or avaricious man.
But he was neither ambitious nor avaricious.
His own domestic happiness and social sympa
thies prevailed over every other considsration.
And at last, perhaps his decision was as pru
dent, as it was patriotic. His judicial career,
for which he was peculiarly fitted, forms an
interesting epoch in the jurisprudence of the
west — and he could not have left to his chil
dren a better legacy than the fame he acquired
as Chief Justice of his own beloved Commou-
¦wealth — to which high and responsible office
he was promoted on the 3d of April, 1810,
and which he coiitinued to hold until the 8th
of November, 1826.
When first called to the bench of justice his
legal learning could not have been either ex
tensive, ready, or very exact. But he pos
sessed all the elements of a first rate judge, as
time and trial demonstrated. He soon became
a distinguished jurist. His legal knowledge,
though never remarkably copious, was clear
and scientific. Many men had read more books,
but none understood better what they read.
Hia law librai-y contained only the most com-
Erehensivc and approved volumes — aud those
e studied carefully, could use readily, and un
derstood thoroughly. With the elements ofthe
common law and the philosophy nf pleading,
he appeared to be perfectly acquainted.
His miscellaneous reading was extensive—
^nd in mental and moral philosophy and po
lite litrature, his attainments were eininent.
His colloquial style was plain and unpodantic,
but fluent chaste and perspicuous; and his style
of writing was pure, graceful and luminous.
Though his perceptions were clear and quick,
yet he was habitually cautious in forming his
judicial opinions. It was hia maxim that a

Judge should never give an opinion until he
had explored all the consequences, direct and
collateral, and had a well considered opinion
to give. His associates on the bench, and the
members of his bar always felt for him perfect
respect, and manifested towards him a becom
ing deference. His reported opinions are
equal, in most, if not in all respects, with
those of any other Judge, ancient or modern,
and will associate his name, in after times,
with those of the Hales and the Eldons of
England, aud the Kents and Marshalls of
America. In politics, also, he was enlightened and
orthodox. In his more matured and tranquil
season of life, he repudiated some of the theo
ries of his earlier and more impassioned days
— and in American politics, he was, long be
fore his death, neither a centralist, nor a cou-
federationist — a democrat nor au aristocrat —
but was an honest and liberel repubUean, na
tional as far as the common interests of the
people of the Unite d States were concerned,
and local, so far as the municipal concerns of
each State were separately and exclusively in
volved. He was a friend to that kind of liber
ty and equality which are regulated by intelli
gence and controlled and preserved by law —
and was a foe to demagoguery, ignorance, li
centiousness, and jacobinism.
But it was as a jurist that he was most dis
tinguished. And as an illustration of his iu-
fluenoe, as well as rare modesty and public
spirit on -the bench, we may notice the signal
fact that, iu his whole judicial cai^eer, during
a portion of which, about 600 causes were
annually decided, he never, but once, dissen
ted from the opinion of the court, and then he
magnanimously abstained from intimating
any reason , against the judgment of the ma
jority, lest he might impair the authority of
the decision which, until changed by Ihe court,
should, as he thought, be deemed the law of
the land.
The only objection to him as a Judge, which
we ever heard suggested, was that, in the opin
ion of some jurists, he adhered rather more
rigdly to the ancient precedents and technical
ities of the common law than was perfectly
consistent with its progressive improvements
and its inadaptableness, in some respects, to
the genius of Ainerican institutions. But this
criticiam, though it may, in aome slight degree,
have been juat, ahould not detract much from
his superior merit as an Appellate Judge.
So far aa he miaapplied any doctrine of tiie
British common law to cases in this country
to which the reason for it in England does
not apply here, he certainly erred. But auch
a misapplication was rarely, if ever, made by
him .And for not extending or improving the
American common law, he was not justly ob
noxious to censure. It is safer and more pni
dent to err sometimes in the recognition of an
established doctrine of the law, tiian to make
innovation by deciding upon principle against
the authority of judicial precedents. And
though one of the most valuable qualities of
ithe common law is its peculiar maUiableness,

OP THE HON. JOHN BOYLE,

221

in consequence of which, it has been greatly
improved from age to age by judicial modifi
cations corresponding with its reason and the
spirit of the times, yet the Judge who leaves it
as he finds it is at least a safe depository.
Such a judge was John Boyle. He was
neither a Mansfield nor a Hardwicke — he was
more like Hale and Kenyon. If he did not
improve, he did not mar or unhinge the law.
But, not long before he commenced his judi
cial career, the Legislature of Kentucky, as if
to seal up the common law as it was under
stood on the 4th of July, 1776, and to hide it
from the light of more modern reason and im
provement shed on it in the land of its birth
— interdicted the use — in any court in this
State — of any post revolutionary decision by a
British court. And that proacriptive enact
ment was scrupulously observed by Judge
Boyle. So far as it was observed — however
injuriously — the fault was not so much his as
that of the legislative department. But it is
impossible, altogether, to proscribe enlight
ened reason, whether foreign or domestic, an
cient or modern, British or American. And
now, Judges more bold, but perhaps less
prudent, virtuaUy disregard the legislative in
terdict, by consulting British decisions since
'76 — not exactly as authorities, but as argu
ments to prove what the common law now is,
and ever should have been held to be, here as
well as in England.
No man, however, of his day, contributed
more than Judge Boyle contributed to estab
lish the proper authoritativeness of judicial
decisions, to elevate the true dignity, and to
inspire confidence in the purity of the judicia
ry department of the Government, and to set
tle, on the stable basis of judicial authority,
the legal code of Kentucky. Truly he was —
to his own State — what Edmund Pendleton
was to Virginia, and John Marshall to the
United States — the Palinurus of our lawyers
and our judges. And a more honest and faith
ful pilot never stood at the helm of jurispru
dence. A careful review of his many judicial
acts, as published in our State Reports from
1st Bibb to 3d Munroe, including fifteen vol
umes, will result in the conviction that he was
equalled by but few Judges and surpassed by
still fewer of any age or country. Such an
analysis cannot be here attempted.
But, for the purpose of illustrating his official
firmness and) prudence, we will cursorily no
tice a few only of his decisions:
1st. In the year 1813, the question whether
a mgrely legal or constructive seizin was suf
ficient for maintaining a "Writ of Right" came
up, for the first time, for decision by the Court
of Appeals of Kentucky. Pew questions
could have been more interesting or eventful
— especially as some of the best lauds in our
State, which had been improved and occupied
for many years by our own citizens under titles
deemed good by them, were claimed under dor
mant, though superior titles held by non-resi
dents, and the ultimate assertion of which dis
turbed the tranquility of our society and im
paired the security of meritorious occupants of

our soil. If an actual seizin, or personal
entiy, or pedis possessio, were indispensable to
the maintenance of a writ of right, many bf
the claims of non-residents could not have
been successfully asserted against an adversary
occupant ¦Who had been possessed of the land
more than twenty years. But if a constructive
seizin, resulting from a perfect title, were
alone sufficient to support a "writ of right,"
many non-resident claimants, who would oth
erwise be remediless, might evict the occu
pants in that species of action, which could be
maintained on the demandent's own seizin
within thirty years, and on that of hia ances
tor within fifty years, even though he had nev
er been on the land. In an opinion written by
Chief Justice Boyle, and reported in 3d Bibb,
(Speed vs. Buford,) our Court of Appeals
decided that, according to the common law,
actual seizin was indispensable to the mainte
nance of a "writ of right." A petition for a
rehearing having been granted by the Court,
the Supreme Court of the United States, be
tween the granting of the rehearing and the
final decision upon it, unanimously decided,
in the case of Green vs. Liter, that mere legal
seizin, resulting from aperfect title, was suffi
cient to maintain a "writ of right." But, as
that decision, though conclusive in the case iu
which it was rendered, was not controlling
authority for the State Court on a question de
pending on the State law, and as to which tho
National Court could not reverse or revise the
judgment of the highest Court of Kentucky,
Chief Justice Boyle, as much aa he respected
the tribunal which rendered it, and anxious as
he undoubtly was for harmony and uniformity,
still clearly adhering to his first opinion, firm
ly, but temperately and respectfully reasserted
and maintained it by affirming the coincident
judgment of the inferior court, even though
Judge Logan, his only colleague ou the bench,
in thaf case, receded and yielded to the opin
ion of the Supreme Court of the Union. And
the decision, thus given by Boyle alone, has
never since been overruled.
2d. Though Chief Justice Boyle had been
inclined to the opinion that the Bank of the
United States was unconstitutional, yet, after
the Supreme Court of the United States had
decided unanimously that it was constitution
al, he acquiesced and recognized the authori
tativeness of the opinion of the National Court
on a national qustion.
3d. Neveitheless, although a majority of
the Judges of the Supreme Court of the Union
had decided, in a solitai-y case, fliat the Ken
tucky statute ef 1812, for securing to bona fide
occupants a prescribed rate of compensation
for improvements before they could be evicted
by suit, was inconsistent with the compact
between Virginia and Kentucky, and there
fore unconstitutional — Chief Justice Boyle,
with the concun^ence of his associates, main
tained the validity of thai protective enact
ment. And the doctrine thus settled by our
State Court has never since been disturbed.
In this inatance — ^being clearly of the opin
ion that the compact guaranteed only the titles

222

A BIOGRAPHICAL SKETCH

to land according to the laws of Virginia un
der which they had been acquired, and did
not restrict, in any manner, the authority of
Kentucky over the remedies for asserting them ,
and that the occupant law did not impair the
obligation ofany contract our diatinguiahed Ch.
Justice did not feel bound or even permitted to
surrender hia own judgment to the conflicting
judgment of a mere majority of the Judgea of
the Supreme National Court in a single case
and never reasserted by all the Judges, or
even a majority. And, in thus acting, he ex
hibited, in a becoming manner, his own firm
ness and purity, whilst he did not manifest
any unjustifiable obstinacy or want of due res
pect for the opinions of a majority of the fede
ral Judges on a national question. Had Boyle's
opinion been indefensible, the fair presump
tion is that it would have been overruled; and
the fact that it has never been disturbed is ev
idence, almost conclusive, that it was right.
And thus he and his colleagues, by their firm
ness and intelligence, maintained the sover
eign rights of their own State, without any
dereliction of official authority.
4th. The only other case to which we shall
here allude, ^ tho memorable one arising out
of a series orlegislative enactments, designed
for the relief of debtors, and therefore charac
terized as the "relief system.'' Having char
tered a bank denominated "the Bank of the
Commonwealth," the notes of which — as the
natural consequence of deficient capital — were
constantly fluctuating in value, and once sunk
to less than 50 per cent, of their denominated
worth — the Legislature, among other suhsidary
enactments, passed an act for prolonging,
fi^om three months to two years, the right of
replevying judgments and decrees on con
tracts, unless the creditor would agree to ac
cept, at its nominal value, the depreciated
paper of that Bank.
'That act, as well as the general system of
legislation which it consummated, was popu
lar. And the minority, opposed to the whole
system as inexpedient, unjust and unconsti
tutional, was, of course, denounced as aristo
crats, federalists, Shylocks. When the antag
onist parties, denominated "relief " and "an
ti-relief," had become greatly excited, and the
subject of their division had silenced eveiy
other common topic of party discussion, and
preduced extreme discord — Chief Justice
Boyle, and his associates of the Court of Ap
peals, at the fall term, 1823, decided unani
mously, in the cases of Blair et al. vs. Williams,
and of Lapsley vs. Brashears et al. reported iu
4i7t Littell, that the two years' replevin statute,
in its retroactive operation on contracts made
prior to the enactment of it, was repugnant to
that clause of tho federal constitution which
declales that no State shall pass any act "im
pairing the obligation of contracts." That
decision was., as might have been e.-npected,
very offensive to the dominant party in the
State — and the appellate Judges were de
nounced as "tyrants, usurpers, kings." Cor
rupt motives were imputed to them by many
partizans — their authority thus to annul or

disregard a legislative act was derided by
some, and the correctness of their decision
was confidently assailed by all er nearly all
of the "relief party." During the first ses
sion (1823-4,) after the date of the decision,
a majority of the Legislature, but not two-
thirds, adopted resolutions condemnatory of
the Chief Justice and his colleagues, and call
ing on the Governor to remove them from of
fice; which were prefaced by a long "^ream-
ble," assailing their decision as unauthorized,
ruinous and ab.surd. That attempt te intimi
date and degrade the court having failed, the
same party, still greatly ascendant, deter
mined, at the next session, to remove the
Judges from office by abolishing the Court of
Appeals; established by the constitution, and
substituting a "new court," by a statute enti
tled the "re-organizing act." Under that act
other persons were commissioned as the appel
late J udges, opened court, and attempted to do
business. But the act being resisted by "the
old Judges" and the party which sustained
them, a judicial anarchy ensued, and both par
ties appealed to the only ultimate arbiters of
such a conflict — the people at the polls. Hero
a great civil battle wasto be fought; a battie in
which the constitution of Kentucky was the
stake, and on the issue of which that funda
mental law ¦*as either to triumph or to fall,
perhaps forever. It triumphed. The people
unfurled its Trhite banner and inscribed on it,
with their own hands, in new and indellible
colors, "supreme law" — saered and inviolable"
— "and far above the transient passions of par
tizan strife."
The radical and decisive objection to the
constitutionality of "the re-organizing act"
was, that, as the constitution expressly ordain
ed and established the Court of Appeals, no
legislative statute could abolish it; and that,
therefore, as the same tribunal instituted by
the constitution still existed, 'the old Judges,'
who, by an express provision of the same con
stitution, were entitled to hold their offices
during good behavior and the continuance of
their eeurt^eould not be legislated out of of
fice by a less majority than thatof two-thirds
of both branches of the legislature, that being
the requisite constitutional majority for re
moval by address.
When the final appeal was made to the bal
lot box, all the talents aud moral energies of
Kentucky were brought out into most active
and efficient exertion, and the whole Union
looked oB with intense anxiety; for the issue
involved the integrity and efficacy of funda
mental law — the stability and efficiency of an
enlightened judiciaiy as the only sure anchor
of that law — and the momentous question
whether the people will, m every emergency,
maintain the rightful supremacy of their own
organic will over the subordinate and con
flicting will of their legislative agents. The
people of Kentucky determined that issue and
answered that question with a most decisive
emphasis in the never-to-be-forgotten year of
1825. Nevertheless, after all, the Senate of
Kentucky uothavingbeen fully subjected to the

OP THE HON. JOHS BOYLE.

223

popular ordeal at the polls, stUl retained a
small majority in favor of the proscribed act,
and that majority, iu defiance of the people's
award, resisted tlie repeal of the act. But fie
"New Court" vanished, and the "Old Court"
re-appeared and resumed its suspended func
tions without further obstruction; and John
Boyle was stiU the honored Chief Justice of
that signally persecuted, but more signally
triumphant, "Old Court." Had he consulted
his own personal wishes and repose, he would
have submitted with alacrity to the legislative
mandate. He was tired of his office — had
worn out his constitution in a laborious dis
charge of its irksome and incessant duties —
had become no richer by his small salary; and
no man on earth was less belligerent, or had
leas taste for notoriety or for strife and obloquy.
Most anxious was he, we well knew, to escape
the impending storm. But he felt that it was
his dufyto his country, his character, and the
constitution, to stand firm ou the judicial ram
part, even liiough he should sink with it, a
martyr in the great cause of constitutional se
curity. Had he and his colleagues bowed to the un
authoritative wiU of the legislature, they
would have beeu treacherous to the constitu
tion and faithless to a proscribed minority, for
whose security that supreme law was adopt
ed by the people and placed under the guar
dianship of a judiciary so organized as to be
able, if firm and faithful, to uphold its right
ful supremacy against the passions and the
wUl of any majority less than that of two-
thirds of the legislature.
The great object of the constitution was to
secure certain fundamental rights from inva
sion by a bare majority of the people or their
legislative agents. That end could not be ef
fectuated -without an enlightened Judiciary,
armed with power to prevent the enforcement
of unconstitutional legislation. Such a Ju
diciary, invested ¦with such authority, was or
dained by the constitution itself; and, to ena
ble it to execute its high trust, honestly and
fearlessly, it was made, in a great degree,
independent of apopular caprice and legisla
tive authority. Here we find the constitu
tion's inherent power of self-preservation--
this, at last, is its chief conservative princi
ple—without which a numerical majority
would be politicaUy omnipotent, the few
would be subjugated by the many, reason
would bow to passion — and the simplest
problem in arithmetic might solve the whole
mystery and power of our democratic institu
tions, by the mighty magic of "the majority
of numbers."
But had Boyle and his colleagues, consult
ing either their own ease or their personal
fears, yielded to popular- clamor or to legisla
tive denunciation, they would have surren
dered the constitution to the keeping of the
legislative department which it was framed
to control— and such an example might have
given practical supremacy to unlicenced num
bers — to physical over moral power — ^to matter
over mind— and thuB eyentually have con

verted our beautiful system of organized lib
erty into unalloyed and uncontroUed anarchy.
But our Judges did not thus ingloriously
fly. Liko Leonidas, with his Spartan band,
Boyle aud his associates stood firmly, a for
lorn hope, iu the last Thermopylce of the consti
tution — ^but more fortunate than the| Grecian
martyrs, they achieved a glorious triumph for
mankind, and lived to enjoy the homage of
their country's gratitude.
A civic victory more eventful or glorious
has seldom been won — its spoUs are the fi-uits
of a rescued and reanimated constitution, the
practical vigor and supremacy of which con
stitute the only svaepalladium of the rights of
men — social, civU and religious. And the ex
ample has been most salutary — and wiU, as
we trust, be useful in all time to come.
Had Boyle been suppliant, he might have
been, for the moment, the idol of a dominant
party; but such popularity, being meretricious,
would have been as evanescent as the fleeting
breath ou which it would have floated. Solid
fame can be acquired only by solid worth —
lasting renown is the matured fruit of noble,
virtuous, honest deeds. Boyle deserved such
renown for his self-devotion on the altar of his
countiy's constitution; and, had he beeu even
sacrificed ou that altar, his fame should have
been associated with that of Socrates, who
Was doomed to the hemlock only because he
would not make a mean compromise of eternal
fa-uths with the vulgar prejudices and vices of
his day.
As the constitution is the supreme law, no
legislative enactment which conflicts with it
can be law; all such unauthorized or prohibit
ed acts must be void. And, therefore, as it ia
the province of the Judiciary to administer the
law, it is the duty of a Judge to disregard, aa
a nuUity, any act of assembly which is incon
sistent with the fundamental law of the sov
ereign people, and thus to uphold their organ
ic will against the opposing and forbidden
wUls of their legislative agents. And, conse
quently, as the constitution forbids every legis
lative enactment impairing the obligation of
conb-acts, it was the obvious duty of the
Court of Appeals to declare, as it did, that
the two years' replevin act was void, if they
were, as doubtless they were, clearly of the
opinion that it impaired the obligation of con
tracts made prior to the enactment of it.
And was it not clearly unconstitutional?
It was only the civil or legal obligation of con
tracts which the constitution contemplated —
for no legislation could impair a moral obliga
tion. Then what is a legal obligation? Is
it not the binding or coercing efficacy of
the law? Can a contract, which the law-
will not sanction or enforce, have any legal ob
ligation. Can the law be said to bind a party
whom it will not coerce? And how alone
does the law enforce contracts? Is it not by
the legal remedies by suit and execution?
Then, will not the abolition of all such reme
dial agency of the law [destroy the merely le
gal obligation of contracts? And if it will,
must not any statute, -which impairs th« rem-

224

A BIOGRAPmCAIi SKETCH

edy, also impair, in the same degree, the ob
ligation of pre-existing contracts? And if the
legislature, by acting on the remedy, could not
impairthe legal obligation of antecedent con
tracts, how wUl it be possible to impair the ob
ligation of contracts by any species of legisla
tion? The legislature cannot change the terms
or alter the form of a contract — it can only mod
ify its legal effect — and this it can only do by
giving, withholding or modifying the reme
dies necessary for enforcing the contract.
Right and Remedy, or the civil obligation of a
contract and the civil remedy fdr enforcing it,
are essentially different. But, though the le
gislature may therefore change the remedy
without impairing the right, yet it cannot de
stroy the legal obligation of a contract without
abolishing all legal remedy, nor impair it
without making the remedy less efficient or
available — and therefore it cannot abolish all
remedy for existing contracts, nor so change
the remedy aa to essentially impair them. And
if thereteospective extension of indulgence un
der execution for two years did not impair the
legal obligation of contracts, an unlimited ex
tension, or even an abrogation of all means of
coercion would not have been an impairment
of the obligation of auy contract. But the one,
as certainly as either of the others, would, in
our view, be an impairment of the legal obli
gation of contracts existing and unperformed
at the date of the enactment. So every court
in the Union, which has adjudicated ou the
question, has decided. So thought Boyle; and
tiierefore so he decided, at all hazards. And, in
thus deciding, he faithfully discharged his
duty to the parties litigant, to his own con
science, and to his country — revived a pros
trate constitution, and inspired the commer
cial community with confidence.
It was for that decision alone that he was
denounced and persecuted, and his state was
convulsed by a most perilous conflict. As
long as the storm raged ne would not "give up
the ship of state." But aa soon as the troubled
elements were stilled by the people's voice,
and he saw the Constitution safely moored,
withita broad banner still proudly floating, he
determined to retire from the toils and cares of
an office which he had so long and so nobly
filled aud illustrated. It had been his settied
purpose, from the beginning of the judicial
contest, to resign his office aa soon as he could
do so consistentlv with fidelity to the Consti
tution and to his own honor. And nuw, the
people having, at the August elections of 1826,
settled the controversy finally and conclusive
ly, he accordingly, on the 8th of November of
that year, resigned the Chief Justiceship of
Kentucky — thus saying to his countrymen:
"Persecuted and abused for honestly main
taining the best interests of yourselves and
your children, and for helping to save your
Constitution, I now voluntarily resign, and
with alacrity, the most important office in
your gift — an office full of labor and responsi
bility, and to the duties of which 1 have dedi
cated the prime of my life— an office which I
never sought, and the profits of which have

been barely sufficient to feed my -wife and
chUdren— au office in which I have grown
gray, and from which I retire at last much the
poorer, in consequence of having so long held
it — now fill it better, if you can."
But the Federal Government, anticipating
his resignation, had offered him the office of
District Judge of Kentucky, -which he accept
ed as soon as he retired from that of Chief
Justice. This new office he filled admirably
— ^but it never pleased him. Its duties were
not sufficient to give him active employment,
and he felt some scruples of conscience in re
ceiving the salary (only $1,500 per annum,)
without performing more public service. But
he was induced to hold it Until his death.
Upon the death of Judge Todd, he refused
to be recommended to the President as his
successor on the Bench of the Supreme Court
of the United States — and subsequently upon
the demise of Judge Trimble, he was unwil
ling to accept the same office — because he pre
ferred retirement, and distrusted his qualifica
tions for a place so high! Rare and excellent
mani He now devoted most of his. time to the
teaching of law, to misceUaneous reading, and
to agriculture. He was, for one year, sole
professor of law in Transylvania — ^but was
generally engaged at home in giving instruc
tion to such young men as sought it — and
they were not a few. He became much pleased
with rural employments, and talked eon
amqre of ploughs and ploughing, cattle and
grazing. Buthe was hastening tothe end of his jour
ney of life. His constitution had been im
paired by hard public service. During the
prevalence of the cholera in 1833 his wife
died, and he himself had a violent attack of
that fatal malady, which he survived. But all
his hopes of domestic happiness being buried
in the grave of his beloved wife, he continued
lonely and desolate, and never recovered his
former tone of health or spirits. He talked of
his own death as very near and not undesira
ble. And though he had, iu his early life,
been an infidel, and had always beeu a skep
tic, he now studied theology, talked reverently
of the christian religion, and finallv, not a
month before his death, expressed to us his
firm and thorough conviction of the divinity of
that system, and hia determination to become a
member of some christian church. But this
last and best boon he was not permitted to en
joy. He died rather unexpectedly, but not
suddenly, on the 28tb',day oi^ January, 1835, in
his own house, like a christian philosopher,
firm, placid, and rational — surrounded by his
physicians, his younger children, and his de
voted servants. And in the agonies of death,
turninglhimself on his couch, he said, "Doctor,
I am dying!" — and with his expiring breath
ejaculated, firmly and audibly — "/ have lived
for my country!!" These were his last words
on earth, and they were true.
What is it to live for one's country? It is not
to get rich, nor to hold office, nor tobe gazed
ftt ¦yyith vulgar admiration, nor to win a hattl»j

OP THE HON. JOHN BOYLE.

225

nor to make a noise in the world, Many who
have accomplished all these havo been a curse
rather than a blessing to mankind. But he,
and he, alone, who houestiy dedicates his .tal
ents and his example to the happiness and im
provement of his race, lives for his country,
whatever may be his sphere. He who seeks
his own aggrandizement at the expense of
truth, or principle, or candor; does not live for
his country — nor cau he live for his countiy,
in the full sense, whose example is demorali
zing, or, in any way pernicioHS. But he truly
lives for his country, who, in all the walks of
life and relations of society, does aa much
good and as little harm as possible, and al
ways acts according to the disinterested sug
gestions of a pure conscience and a sound
head. Whatever may be his condition — high
or low, conspicuous or obscure — he, whose life
exemplifies and commends the negative and
positive virtues, personal, social and civil —
lyho lives in the habit of pure morality, en
larged patiiotism and disinterested philan
thropy — and whose conduct and example are,
as far as known and felt, useful to mankind — ^ho
and he alone lives for his country. Andhence
it is perfectly true that a virtuous peasant in a
thatched hut may live more for his country
than many idolized orators, triumphant poli
ticians, or laureled chieftains.
The life of John Boyle exhibits a practical
illustration of all the nobler and more useful
virtues of our race. No man was ever more
chaste and upright in the whole tenor of his
conduct; he had no selfish pride or sinister
ambition; he was punctiliously just and truth
ful; he was as frank and guileless as an artless
child untutored in the arts and ways of social
life — ^his humility was most amiable and hia
benevolence unsurpassed. He always spoke
as he thought and acted as he felt — and his
sentiments were pure, and honorable, and al
most always right. He devoted his life to the
cultivation of his moral and intellectual facul-
•ties, and all chose faculties were dedicated to
the honest and useful service of his fellow-men
his family, and his country. He was a patriot
and benefactor in a pure and cemprehensive
sense. His heart was his country's — his head
was his country's — ^his hand was hia country's
— his whole life was full of philanthropy and
lofty patriotism — and his example, altogether
blameless and benificeut, presents a full-orbed
and spotless model, worthy of all imitation.
In contemplating his character we see noth
ing to condemn — much to admire.
As a lawyer, he was candid, conscientious
and faithful — as a statesman, honest disinter
ested, and patriotic — as a Judge, pure, impar
tial, and enlightened — as a citizen, upright,
just and faultless — as a neighbor, kind, affa
ble and condescending — as a man, chaste,
modest and benignant— as a husband, most
constant, affectionate and devoted.
We have heard his amiable and excellent
wife declare in his presence, not longer than a
year before her death, that, notwithstanding
all the cares and crosses of domestic life, there
had never been a sour look, a harsh word or a
29

hard thought between them, from the event
ful moment when their deatiniea were linked
together on the altar! And knowing' them
both as we did, we doubt not that she told the
truth. Here, in thig man, we present a fit exemplar
for all men, in every condition of social and
civil life.
The noiseless life.-we have thus imperfectly
sketched, illustrates most impressively the old
fashioned truth, that "honesty is the best poli
cy" — shows what may be achieved by indus
try,, probity, and undissembled humility —
proves how much better and more honorable it
is to deserve than to seek preferment, and how
certain modest merit will ever be of ultimate
notice and reward—and may we not add, that it
affords strong evidence of the important fact.
that an enlightened miud. when once ab
stracted from the cares of earth or mellowed
by affiiction, will be apt to see the light and
feel the value of the christian's hope, and to
embrace, as the best of all books, the Chris
tian's Bible?
Surely this was a good and a great man —
and most truly did he asseverate, on his exit
from earth, "I HAVE LIVED FOR MT
COUNTRY."
Such is a brief 'outline ofthe life aud charac
ter of one of thebest and greatest of men, has
tily and imperfectly sketched, by one who
knew him long and well, and who feels too
much respect for his virtues and reverence for
his memory to exaggerate or disguise the
truth of faithful biography with any embel
lishment of empty panegyric. The best eulo
gy of Boyle would be a naked exhibition of
him, as he was, without any drapery from ei
ther fancy or friendship. Posterity would be
greatly benefitted, and his own fame, much ex
alted by such a portraiture.
The death of such a man, in the prime of his
life, was a great public calamity. His inti
mate friends felt it most deeply, and regretted
that an inscrutable Providence had not spared
him to delight and instruct the countrymen
whom he left behind him. Had he lived to a
mellow old age, he would have enjoyed the
ripe fruits of his earlier habits and toils, and
have rendered inestimable service to his coun
try in the example of a venerable, virtuous and
enlightened Patriarch.
But doubtless it was better for him to die
when he did. He had lost his dearest earthly
treasure — ^his house had become, to him, deso
late— and, by his early death, he escaped all
the infirmities of extreme age. He died full of
honor and of hope, when his setting sun had
"all its beams entire-4ts fierceness lost."
The worth of such a man is never fully
known until long after his death. Posthu
mous fame is of sloir growth, and never at
tains its fuU elevation until it has survived all
personal prejudice and envy. Though Boyle
died in peace with all mankind, aud left not
an enemy behind, yet his death was foUowed
by no sepulchral honors or postmortuary tes
timonial. No funeral eulogy, no public meet
ing, no Bar resolution, nor even obituary no-

936

A BIOGRAPHICAL SKETCH. ,

tie* announced that he was dead, and that
Kentucky mourned. Nor has either marble
or canvass, chisel or pencil, preserved any
trace of his person. But this is just what he
would have preferred. He desired none of flic
empty pageantry cf mock sorrow — ¦his memory
needed no perishable memorial. Like old
Cato, he built his own monument — and oue
far more honorable and enduring than any
marble cenotaph or granite column.
Personal reminescencos of the most revered
of our race moulder with their dead bodies,
aud are soon buried forever with tho dying
generation that knew and loved them- Their
deeds and their virtues aloue may be embalmed

for ages. Beyle's illustrious deeds aud rare
virtues, if faithfully recorded and transmit
ted, will be long aud gratefully remembered
by approving posterity. And should a Taci
tus ever become his biographer, his name will
be as immortal and at least as much honored
as thatof Jg'*"'""'"-
And now and henceforth, in all time to
come, may every American youth emulate tha
virtues and imitate the bright example of Join
Boyle-~and then, like him, he may be able
houestiy to declaie, with the expiring breath
that wafte him to eternity, "I HAVE LIVED
FOR MY COUNTRY."

PRELECTION.

Lexington, Nov. 14th, 1842.
Dear Sir: — We, the undersigned, a Committee appointed on the part
ofthe Law Class, are instructed to request a copy of your very eloquent
and appropriate address, delivered before the Class on Thursday last.
By acquiescing, you will confer a favor upon us individually, and upon
the Class.
D. HOWARD SMITH,
JAMES L. ALLEN,
JOHN 1. JACOB, JR.,
W. B. HENDERSON,
JOSEPH P. FOREE,
Hox. Georoe Robertson. Committee.

Lexington, Nov. Hth, 1842.
Gere^fewieTi.— The little Introductory Address, for which you haye been
pleased to express such favorable consideration, was intended chiefly for
yourselves and those whom you represent, and therefore it is yours to
dispose of as you may desire. Yours, respectfully,
G. ROBERTSON.
iMessrs. D. H. Smith, J. L. Allen, and others,

ADDRESS.

Harmony is nature's law, and wonderful
simplicity the order of Providence. Gravita
tion is not more universal or effective in the
material than love is in the moral world. The
moral, as well as the physical economy of the
earth, is upheld and harmonized by an admira
ble chemistry, as uuiversal'and resistless as the
voice of God. We are not gregarious merely,
but instinctively, necessarily, , and eminently
social. Society is the natural state of man,
and love is the attractive element of cohesion
which binds us together, and the gravitating
principle wliiSh holds us fast, as with chains
of gold, to the almighty centre and source of
aU being.
Reverence to God and sympathy for one an
other, are natural emotions bf mankind; and
consequently, religion and benevolence emi
nently distinguish our race, aud point intelli
gibly to its duties and its ultimate destiny.
But there is a more vital principle — a sexual
sympathy, that pervades aud vivifies the living
universe — a more than Promethean fire, that
burns iu the human heart, even when not oue
spark of vestal light may glow on the altar of
God. This is the punctum saliens of being, of
society, and of human jurisprudence; and its
first hallowed fruit is marriage. The conjugal
is the natural condition of the sexes. The
bridal couch is prepared, and the nuptial knot
is tied by the hand of Omnipotence. Marriage is
not only a sacred union; it is also a rudimental
relation, coeval with the first pair on earth —
the nucleus of society — thc parent of social
order and civilization — the guardian of house
hold purity — and the source of domestic chari
ties and joys, without which man would be a
wandering savage and woman abeast of burden.
The beautiful and most eventful apologue
revealed to u.s concerning our first progenitors,
illustrates the true object and nature of the
virtuous love and pure conjugal union of mau
and womnn. It prescribes, too, the appropri
ate sphere of husband ami wife — and, whilst it
.shews that she is "bono of 'his bone, and flesh
of his flesh," aud therefore subordinate, it ex
emplifies the fact f>f her potential .supremacy
over his will.
As marriage, holy though it be, is ,ilso and
chiefly a social and civil relation, it is subject
of course to human as well aa divine law; and
few branches of our jurisprudence are more in
teresting or important than that which regulates
the matrimonial st.ate anil its consequential
rights and obligations.
Presuming that the subject would interest
and amuse young men just entering the thresh

old of manhood aud the illimitable territory
of law, and that it might not be altogether un
acceptable to a miscellaneous auditory, whether
under the yoke or in a state of single blessed
ness, I propose; in this introductory address,
unexpectodly and very hastily prepared, to
present to you a syllabus of our law respecting
marriage and divorce. ,
We have said, and truly, . that marriage is
both a natural and civil Union, the parent and
the offspring of primitive society, and there
fore, a fundamental relation, natural, social
and civil. As defined b}- Rutherforth, it "is a
contractbetween aman aud a woman, in which,
by their mutual consent, each acquires a right
in the person of the other for the purposes of
their mutual happiness, and of the protection
and education of children."
As it is a spontaneous unioiij for weal or for
woe, it cannot be valid between the parties,
without the unconstrained consent of both, and
ivhen each was legally competent to make
such an alliance. But, though necessarily
consensual, .ind partaldng of the character of
a civil contract, it is anomalous, and in many
respects, sui generis. The legal age reqtured
for irrevocable consent to most commercial
contracts is not necessary to the validity of
marriage, which may be binding, if actually
consummated, between parties deemed habiles
ad matrimonium, and that is, according to the
common la-iv, when the male i.s 14 and the fe
male 12 years old. Marriage, at or after those
ages, is neither void nor voidjable on the ground
of infancy or juvenile indiscretion.
According to the same ancient code, a mar
riage de facto, without any fonnal solemnization
orpropf of consummation than cohabitation and
recognition, may be binding ou the parties,
and for most purposes as effectual as a marriage
dejnre. But amere agreement to mai-ryin;^-
turo, is not ipsvm matrimonium; and though a
legal obligatiou may result from such a pros
pective stipulation, for a breach of which dam
ages might be recovered, uovertheless a Court
of Equity ivould never compel a specific execu
tion, because coercion would frustrate the de
sirable ends of matrimony. ^
Contempl.iting the cquaUtv of the sexes sur
viving "the accidents of flood .lud field," the
importance of having well defined legal heirs,
and the inappreciable value of concentrated
affections, conjugal, filial, and parental— the
gomus of our common law, like that of Chris
tianity, unites with the voice of nature and the
suggestions of enlightened policy, in denounc
ing, as meritricious, any other matrimonial

LHCTURK ON MARRIAGE AND DHVORCl.

32»

(onuexion than that of monogamy; and conse
quently as long as the legal relation of husband
and wife ehall continue to subsist, neither of
the parties to it can laivfuUy marry any other
person, and any auch prohibited marriage will
be nullified by such subsisting pre-contract.
And the same code of law only echoes the
voice of nature, when it declares that duress,
fraud, mental imbecilitj-, and a prohibited de
gree of propinquity by blood or affinity, may
avoid a marriage ab initio.
The legitimate eflfects of marriage, and the
importance ofthe various relative interests in
volved iu it and depending on it, constitute it
au union for life, indissoluble, according to
natural law, by either party without the con
sent of the other, or %Tithout a substantial
breach by oue, orthe concurrence pf both, aud
perhaps not even then, if they have any child
to rear; and the divine law, as now revealed,
seems to ;|>rohibit a divorce even for a breach
of the contract of marriage; for, though the
Jewish Legislator, (Moses,) permitted divor
ces, yet his more perfect successor, contem
plating the* Christian economy in lieu of Ju
daism, said, "Whom God hath joined together,
let no man put asunder."
Man-iage is moreover, juris gentium; and,
according to a modem code of intemational
comity recognized among most Christian na
tions, the lex loci contractus generally deter
mines the validity of this, as well as of other
contracts. The degrading and injurious con
sequences that might obviously and frequently
result from any other doctrine, have at last
compelled . proud England reluctantly to ac-
knoTvledge the validity of even the stealthy
marriages of her own subjects, at famous
Gretna Green, in open violation of her local
laws. But the recognition of all foreign mar
riages, vaUd where consumated, would neither
be required by the fundamental principle of
comity, nor be consistent with its reason.
That principle, being the offspring of the mu
tual interests of commercial nations, extends
no further than may be useful for subserving
those interests; aud is consequently this — that
foreign laws, though not (Entitled, ^roprjo vigore,
to extra-territorial operation, shall neverthe
less be deemed as ubiquitous as the rights af
fected by them, unless by giving them such
effect in a particular nation, its institution.s, or'
its local policy, or the just and preferred rights
of its ov/-n citizens inight he undermined or
jeoparded. Consequently, incestuous marria
ges, incompatible with domestic purity; polig-
amy, or more wives than one; and polyandry,
or a plurality of husbands, even though re
cognized by the law of a foreign country,
where these unnatural unions may have been
first consummated, would not be tolerated in
this country where they are deemed pestilent
and extensively mischievous. And, consistent
ly with the same conservative principle of
comity, a foreign marriage unreasonably de
clared void bythe loCal law of the place ofthe

contract, might stUl be recognized as valid by
our courts, if such a marriage here would b"«
lBgal;--for example, the actual marriage of a
monk in Spain, which is prohibited by that
Catholic sovereignty.
Such is the international rule in Protestant
Christendom, as to the status of marriage, or
the marital condition of the contracting par
ties. But, as to the legal consequences of marriage,
a different rule of comity prevails. The laiv
of the contemplated or actual domicil regulate,?
marital rights to moveable property; the law
of tho situs governs the same rights to immov
able estate; and the law of the habitation
controls the personal relations and obligations
of the parties. No other sovereignty than
that of the domicilium habitationis can authorize
such a divorce as will be deemed valid iu any
foriuu of that domicil; for it might be as subver
sive of the independence and conservative sov
ereignty of a nation to suflier a foreign sov
ereign to control its domestic institution and
relation of marriage, as it would be to permit
such foreign legislation over its terra firma,
which has never been allowed or claimed.
Consequeutly, a divorce of the citizens of one
nation, granted by the authority of any other
nation, may not be admitted as valid in any
of the domestic tribunals.
The positive la-vvs regulating marriage and
defining the relative ¦ rights aud obUgations
resulting from it, differ eSsentiaUyin different
countries;? and in these respects, the common
law of England, which is substantially our
law, is materially variant from the civil code
of Rome, which is the substratum of the laws
of a great portion of modem Europe, and also of
those of Louisiana.
The common la'w is less tolerant of djvorccs,
and far less liberal to wives than the code of
.lustineau. Our Teutonic code merges the legal exis
tence of the wife in that of her husband; in
capacitates her to make any contract or testa
mentary disposition otherwise than in execu
tion of a power, express or implied; gives to
the husband a harsh dominion over her person,
the full exercise of which would not be tolera
ted by the less authoritative but yet more
supreme law of public sentiment, in a Chris
tian society of this enlightened age. And, as
to property, the same law is also unequal and
apparently liarsh. It vests absolutely iu the
husband all the moveable property possessed
by his wife at the time of her intermarriage,
and the usufruct of her immovable estate du
ring their joint lives, and even after her death
and as long as he may live, in the event of his
survivorship, the birth of an heir, .ind the re
duction of the estate to his actual possession
during the coverture. It gives to him also all
the chattels that come to her during the mar
riage; a right to recover and appropriate to
his own exclusive use all choses in action
accruing after the marriage; and at adminis-

230

LBCTtJEE ON MAERlAGB AND BIVORCB.

trator, without, , liability to distribution, all
shose also which accrued to her before covert
ure, and had not been reduced to possession
at her death.
But the same law allows to the wife nothing
diu-ing coverture; and, in the event ofher sur
viving her husband, gives her, only for life,
one-third of his real-estate, aud a distributive
share of his personalty absolutely after the
payment of his debts.
But this very general and imperfect outline
would leave our legal code subject to unjust
imputation, unless we should add , to it the
, memorable fact, creditable to English jurispru
dence, that modern Equity, with a rational and
. liberal spirit, has gallantly interposed aud cov
ered the helple.53uess of coverture with its pro
tecting shield. By interweaving into the iron
web of the ancient common la-w' some, of the
softer and finer fibres of the civil code, courts
of equity have greatly improved the texture of
the entire fabric, in many respects, and in none
more csBcntially than in the melioration of the
condition of married v^omen. Equity recog
nizes the distinct existence, and to a limited
extent, the separate rights of wives; it permits
them to sue their husbands for good cause, and
ivill protect them against tyranical and cruel
abuse; it will also enforce post-nuptial con
tracts; allows wives to enjoy and dispose of
separate property; and will neither al-Ways
permit nor ever aid a husband fo obtain the
possession of his wife's property, unless he will
first secure a competent maintenance to her,
and her children also, if she havo any.
And thus, next to thc Christian religion.
Equity may justly claim the most grateful
tribute of wives, for the comparative elevation
ou which they stand in thi.s land of law and age
of light.
This skeleton of our law on tho subject of
marriage and its incidents brings us to the in
teresting inquiry — how is tho Gordian knot
to be relaxed or cut? And the answer is, only
by death or divorce.
Divorces are of two cln-sct — lir.it, divorces
A MEXSA i'.-r TiiOEO — und, second, divorces
A viKUlJi.0 MAjtuiiioNii. The first is oidy a
temporarj' separation from bed and hoard, still
leaviug the parties in the legal relation of hus
band and wife; thc second dis.solves the matri
monial tie, and places the pnrtjes or one of
them in statu quo.
By our law, the tirMt class of div(irecs are
allowable for inexcusable abandonment, or
8.EVITIA or that kind of cruelty which endan
gers life or health. Any less degree of mis
conduct or neglect, however tormenthig, will
not autiiorize such a divorce, which is deemed
porilou.s to morals hy liberating the particsand
StiU leaving "husbands ivitiiout wives, and
wives without husbands," Por. relief from
incompatihility of taste, asperity of maiiuera,
acerbity of temper, offensive habits, or oppro
brious words, the suffering party must draw on
the consolations of religion or the fortiude of I

practical philosophy. This species of divorce ii
granted here by a court of equity only; and th«
divorce is accompanied by a monition to the par
ties to live chastely, and also leaves the door to
reconciUation and restitution wide open. If a
wife be thus separated, she is entitled to Atimo-
Nv or a reasonable annuityforher maintenance.
And, presuming conformity with the decretal
injunction, the law, will, peima faccs, deem
illegitimate all children born during the sepa
ration. Notwithstanding the value of the social in
tercourse depending on the stability of thij
most important of all the domestic relations, »
dissolution ofthe matrimonial ohain is author
ized, for some cause or other, in all Christen
dom, excepting only in such portions of it as have
established Catholicism, which looks on mar
riage as aij inviolable sacrament, and there
fore Indissoluble and intactable by human
authority. According to o-ur common law, the canoni
cal disabilities of consanguinity, affinit)-, and
anti-nuptual infirmitj, render a marriage void
able only; and it is nevertheless good for all
civil purposes until after a sentence of nullity,
which cannot be pronounced after the death "of
either ofthe parties. But the civil disabilities
of pre-existing marriage, want of age . and
want of mind, prevent a vaUd matrimonial
contract, and therefore make it absolutely
void. Iu neither class of cases, however, can
a nullification ofthe marriage be appropriately
denominated a divorce, wluch, in its strict
sense, is a dissolution of marriage vaUd and
binding between the jiartics at the time of
consummation. The laws of difterent nations and ages have
also differed essentially as to the prescribed
causes for a divorce a vinculo.
In the early history of Rome, divorces were
unkno-\ra; yet, in the most refined ages of the
Republic, either party might renounce the
matrimonial uniou -n-ithout any other cause
than a wish to do so; and even ¦n-hen,in a later
age, the same latitude of license was not in
dulged, u, husband might repudiate his wife for
trifling and frivolous causes, whichmight ofteu
occur in the happiest wedlocks. Such laxity
tended to tiie frustration of tiio most cherished
ends of marrLige and to the unhingement of
society. Antcoedcnti}-; to the i'rcnch Revolution,
marriage was indissoluble in Prance; but the
volcanic eruption, that inundated the institu
tions and -ivork.s of ages, desecrated the legal
union of tho sexes; and in 27 nionths, there
were six thousand divorces in the single city
of Paris. And even the Code of Napoleon
allowed divorces for many causes, among
which -was mutual and persevering consent.
Thc Dutch law allows divorce for inconti
nence and maUcious desertion only. And, iu
England, a divorce, a vinculo, is granted for
oue cause aud by Parliament alone. In South
Carolina no divorce has ever been granted.

LBCTURE ON MARRIAGE AND DIVORCE.

S3t

In New York, Massachusetts, North Carolina.
aud Illinois, divorces may be decreed by thc
Judiciary for one cause, and that is the same
for which marriage may bo dissolved iu Eng
land. In Kentucky, a statute of 1809 authorizes
judicial divorces a ¦vinculo for several pre
scribed causes. But nevertheless, the Legis-
latture has adopted a practice of divorcing for
those and many other causes, by simple enact
ment. Both tho poUcy and constitutional au
thority of this accustomed procedure have been,
and still are arraigned by many of our most
prudent countrymen and wisest juriscou-
solts. Can thc policy be either wise, just, or benifi-
centi Can such a miscellaneous multitude as
the Legislature of Kentucky be a suitable tri
bunal for the final dacision of such important
individual rights as those generally involved in
the amplication for divorce? Can it be expec
ted that each of the members who acts and
votes will either feel a proper degree of res
ponsibility, or deUberately investigate or un
derstand all the facts of every one of the mul
titude of cases presentedfor legislative decision,
at every session? And moreover, may there
Botha reason for apprehending that the person
al soUcitude of individual members to succeed
in particular cases confided to their manage
ment, might operate unjustly on other cases,
and inischievously on general legislation? It
is a fact that important measures of general
concern have been defeated or adopted by the
influence of those sympathies and combinations.
And it is a fact also that divorces have often
been enacted without the knowledge of one of
the parties, and sometimes without that of
either of them.
It must be admitted, however, that our leg
islature have lately become more judicial by
adopting tbe practice of notifying ¦ the parly-
complained of, and summoning witnesses."
But whether this usage is adhered to in every
case, or how long it may be continued, we
cannot tell. We know, however, that this extra
neous business impedes general legislation, pro
tracts the sessions, and greatly augments the
public expenditures, even to an amount almost
equal, every year, to the united salaries ofthe
whole judicial Corps, who could, much more
fitly, perform the same service without any ad
ditional compensation.
Is it not surprising that the constituent body,
hahitually sp astute audjealous in reference to
the treasury and th« conduct oftheir functiona
ries, seem not to have been yet awakened on a
subject so important to them, in both a, pru
dential and economical point of view, as that
of legislative divorcing?
Would they not-^if they would consider
this matter — deem it much better for the Leg
islature, hy a comprehensive general enact
ment, to prescribe all the proper causes for
Divorce and leave the decision pf each of those
causes to the judiciary, and at th« cost of the

parties, as in other individual controversies!
But the hazard of injustice, and the uncertainty
of the matrimonial tenure incident to tho prac
tice of arbitrary and unlimited legislation on
the subject of Divorces, present the strongest
objection to its policy. Should such vital in
terests and inestimable rights depend on the
.VKBiTKiUM of a legislative body which cannot
determine a private right to a horse, a cow, or
even a pig?
But the question of power is even more im
portant than that of policy. Does the power,
as assiimed and generally exercised, exist?
This is a grave question never yet judicially
settled. Those, who deny the power, do so generaUy
on one or both of two grounds. 1st. The con
stitutional prohibition against the enactment
of any Statute "impairing the obligation of
contracts" — and, 2nd. The organic distribu
tion of all the sovereignty of our State among
three co-ordinate departments, Legislative,
Judiciary and Executive, and the fundamental
interdiction to the Legislature of any judicial
authority over private rights.
The first ground is, in our apprehension,
neither so comprehensive nor so, strong as the
last. That marriage is an obligatory contract, ie
not now doubted. Nor, consequently, can
there be any doubt that it possesses obUgationi
that might be impaired by legislation. But it
is more than a contract — it is an organic rela
tion, on which the prosperity and even the ex
istence of organized society essentially depend;
and therefore, the sovereign authority of every
State, having the inherent apd inalienable
right of self-preservation, must necessarily
possess, to a conservative extent, the power to
control that relation, for the pubUe welfare.
Hence, as the voluntary disruption of this do
mestic relation is deemed inconsistent with
the interest of well-regulated society, it is not
allowed by our system of jurisprudence; and
consequently, contracts of marriage cannot,
like agreements merely commercial, be dis
solved by the mutual consent of the parties.
On this general ground, we, were once inclined
to the opinion that marriage is not such a
contract as was contemplated -when the cousti
tutiou prohibited legislative impairment of
contracts. But subsequent reflection has
shaken, if not changed that opinion. The
power, which certainly exists consistently
with the constitution, of dissolving marriage
for a breach of any ofits obligations by cither
party, may be enough for all the necessary or
useful piurposes of the govemment; and if any
divorces have ever been granted by our Legis
lature or Courts, without an actual or supposed
breach of obUgation, expressed or implied,
such cases have escaped our observation and
must be rare; and although marriage is indis
soluble without the consent of the sovereign
authority, yet, when that consent is given, a
dissolution for a breach of tlie contract cannot

3S2

LECTURE ON MARRIAGE AND DIVORCE.

impair, but only, so far, enforces the obligation
ofthe contract. Unless, therefore, the Legis
lature should attempt to divorce man and "wife
against the consent of both, dr without any
delinquency or fault inconsistent with the ob
ject or implied obligation of the marriage con
tract, the inquiry, whether such a contract is
protected by the constitution, would be irrele
vant;' aud, in the language of Chief-Justice
Marshall, (in the case of Dartmouth College
vs. Woodward,) we may say that "when any
State Legislature shall pass an act annulling
all marriage contracts, or allowing either party
to annul them without the consent of the other, it
will be time enough to in,quire v/hether such an
act be constitutional."
But the second objection is more applicable,
and may not be so easily -resisted or evaded.
The boundary line between the legislative and
the judicial field is not defined -With a precision
either distinct or susceptible of absolute cer
tainty; and the practice of special legislation
for particular cases and persons has increased
the difiiculty of defining the legislative func
tion in this country. But any act, in any
form, which decides private rights from facts
proved or assumed, must be judicial, and in
uo sense legislative; and therefore, if a legis
lature divorce a wife on the ground of alleged
misconduct of the husband, they not only de
termine his rights, but decide the alleged fact,
and seem to exercise the judicial fnnctioii.
Such an act might be an usurpation; and there
fore void, unless the legislature have power to
divorce a wife without either the consent or
the fault ofher husband. And does this power
exist? Does that constitution, which guards
private property and commercial contracts
against legislative interference, leave the
most important bf all social rights and all its
incidental and consequential interests exposed,
naked and helpless, to the tide of legislative
passion or caprice? This is a question we are
not disposed now to discuss.
The stability and security of democracy
have been assured by two modern expedifents:
Ist, representation judiciously organized and
guarded; aud, 2nd, the distribution of the three
great functions of political sovereignty among
as many separate bodies of magistracy, and
the delegation of the judicial function to the
judiciary. department exclusively.
If the will of the numerical majority could
be always deliberate, calm and rational, it
ought always to prevail as the ruling power of
a State; and, on this hypothesis, no fundamen
tal restrictions on that will would be, politi
cally, either necessary or proper. But this
theory can never be safely exemplified iu the
imperfect state of fallen mau; and no rational
and prudent being would be wilUng to confide
all his rights to the unchecked will of a major
ity of his fellow citizens. The great object,
therefore, of all constitutions was to provide
thocks on the majority. And representation,
as hero organized, waf intended as one security

against popular passions and delusions, .by as
suring intelligence, deliberation, responsibUity,
and exemption from passion in the enactment
of laws. This theory is as beautiful as it is
philosophical. It is — that, in a popular gpv-
erninent, the aggregate reason of the dominant
mass must be made to prevail over its passions,
and reflecting judgment over hasty impressions,
occasional prejudices, and teinporary excite
ments — that the will of the majority -would be ,
fluctuating, uncertain, and unsafe until it shall
have been secreted through the constitutional
organs' — .ind that, when thus elaborated -and
rectified, it should be permitted to prevail, if
mankind be acknowledged capable of self-gov
ernment. Aud, if all the constitutional organs
would always perform their proper fuflctions,
as originally contemplated, the practical gov
ernment would be as benificeut as the theoret
ical iS pro-vident and wise. But there is a
class of timid or deluded representatives who
will not maintain their conBtitutional positions
— but surrender their own deliberate and in
structed opinions and echo the passions, preju
dices, or inconsiderate wishes of the constifa-
ent multitude. Such a course tends to under
mine the constitution and frustrate its power
and ends — and if it should become prevalent,
there will be an eventful transition from a reg
ulated knd ballaneed republic to an unregula^
ted and uncontrollable democracy — a transi
tion from a govemment of intelligence to one
of passion, from a constitutional govemment
to the tyranny of faction and, anarchy. And
how awful is the responsibility of those func
tionaries who, by such examples of recreance
and servility, are helping passion and igno
rance to usurp the reigns of government from
reason and light in -whose hands our Pathers
placed thern!
But there is still another and more hopeful
safeguard in the constitutional separation of ju
dicial from legislative power, and the institution
of a chosen judiciary selected for its learning
and probity, and made sufficiently independent
to feel unmoved by cupidity or ambition. This
is the great Bulwark of «tabUity and justice —
aud without such a fundamental organization
there could be no security. The concentra
tion of legislative and judicial power iu the
same hands would, as the, history of man
proves, be despotism in embuyo.
Aud, therefore, our partition wall between
making the law and applying it conclusively
to the facts of individual cases is the most im
portant and inviolable structure of our polit
ical fabric. It is the great Breakwater con
structed and embedded by the wisdom of ages
to stay the surges of the agitated ocean. And,
as long as it shall remain untouched by the
popular or laiv-giviug hand, the humblest citi
zen may look unmoved On the foaming tide
and feel secure. But let this embankment
also be undermined or give way, and then the
flood, unchecked, may soon inundate tho lani}

LECTURE ON MARRIAGE AND DIVORCE.

3S(

and desolate the land we hold most dear — life,
liberty, property, religion — and all.
The friends of constitutional liberty and
justice cannot, therefore be too jealous of the
assumption by the legislature of any portion of
judicial power. Let that department, within
its allotted sphere, prescribe the rule of con
duct and of right; but never suffer it to take
from any freeman his chartered right to be
tried and judged by the constitutional tribunal
of impartail and enlighted judgment.
And if it be the legislative will that a wife
may be divorced from her husband for any
prescribed cause, ought or not the decisive
question whether the cause .exists be deter
mined in the same manner as all other questions
of fact involving public right? This is an im
portant enquiry.
Even the Parliament of England, wliose will
is law, never, in the plentitude of omnivorous
power, grants a divorce until the only fact
upon which it will dissolve marriage has been
estabUshed by a regular trial and sentence in
an ordinary court of justice. And not only
was this the invariable practice also of Virgi
nia prior to our separation from her, but Ken
tucky never departed from it imtil the year
1805 — when, for the first time, her legislature
passed au act peremptorily divorcing a husband
from Ms wife.
But our pm-pose here is neither decision nor
discussion — but only general suggestion for
inciting reflection and research. And, there
fore, our allotted time being about to expire,
we will now close the subject, by only repeat
ing, that God himself instituted man-iage and
declared, in the very act of his creation, that
"it is not good for man to be alone."
PupUs — academic, medical, jurisprudential
— all — We welcome you to the classic halls of
Transylvania. .Partially dismantled for years,
she is now, at last, completely rigged ancl
manned; and, with all her sails hoisted and
her tri-colored banner floating in the light
of an auspicious re-dawning, she launches on
a broad sea, with flattering hopes of sur-yiving
every adverse gale and triumphantly surmount
ing every opposing billow. Though patched
and renovated from hull to mast, she is the
same old Akgo tiiat, in the infancy of the
West and Kentucky's heroic age,' gallantly
bore aloftthe "golden fleece" of science. Em
barked on this long-tried, good old ship, you
need no insurance. She will neither sink nor
fail. May your voyage be prosperous, and
land you well equipped for the rich harvest
that ripensbeforeyouin this valley of hope. A
better theater was never prepared for the use
ful employment of honest talents, or the hon
orable development of a noble patriotism.
The age, in which you live to act, is evidently
most portentous. The country on whose
bosom providence has been pleased to cast
your lots, is full of promise; and on the event
ful drama in -which it may be your fortune to
30

play conspicuous parts, may possibly hang that
country's destiny.
Our Anglo- American union has organized a
great moral revolution, and is now, with the
world's gaze upon it, testing a mighty problem
for all mankind. The Mississippi valley may
soon hold a preponderating authority iu the
councils of that union. In tiiis hopeful vaUey
the educated and professional classes, aud es
pecially the euUghteued in jurisprudence, will
possess a controlling power; and among these,
Transylvania's sons must exercise" a pervading
and perhaps decisive influence.
It is on this ground that we feel especially
the peculiar importance and momentous re
sponsibility of this law Department. Who
knows that it may not bless, save or destroy
the hopes, not of this generation only, but of
unborn millions? Will you, its pupjls, all
strive to illustrate its beneficence? Knowledge,
fidelity, pure love of country, and honorable
ambition -will be your best armor in the conflict
for which you are preparing. AVith these aloue
you may hope to be useful in your day, and
expect to achieve -virtuous renown. Any other
panoply would be a dead ¦weight which might
crush you to the level of the vulgar herd of
useless drones or ephemeral bustiers.
Resolve to be useful, and the end is almost
attained. Correggio, when a boy, resolved to
be a distiUguished artist — and that instant, his
fate was sealed, and posthumous fame was se
cured. And it is credibly reported of an emi
nent American, that, when taking final leave
of college, with nothing but "poverty and
parts" and a fixed resolution to become what
lie has already been, he said to the President
of the institution, "You shall, one day, hear
from D-\niel Webster." And now Dart-
montii, like the mother of Washington, is can-
nonized by the association of her name with
that of her illustrious son. Will all or any of
you, in the votive spiritof the New Hampshire
boy, resolve, as he once resolved, to illustrate
the name of this your alma mater? Shall
Transylvania ever hear from you? And what
shall she hear? The long line of her distin
guished sons has already hallowed her fame
.ind shed a lustre ou this western world.
Magna m.iteii vikuji, Coraelia-like, she is
justiy proud of her jewels. Will you add to
their number, or will you cast a shade on her
bright escutcheon?
May you all contribute to swell the volmne
of her fiime — may you, ennoble your own
names, aud earn a grateful remembrance that
shall never fade away. And, when you come
to take your last leave of these scholastic walls,
may you, each and all, make a sacramental
resolve that Transylvania shall hear from you?
and when she docs, may the intelligence he
such as to swell her venerable heart with a
mother's joy.
Thus, on a subject full of harmony and full
joy, we have commenced with "haumont,"
and close with "jot."

I>RELECTI0I.

Lexington, Feb.. 24th, 1847.
Dear Sir: At a meeting of the Senior Class of the Transylvania Law
School, the undersigned were appointed a Comoiittee representative of
the wishes of the whole Class, who, through us, solicit for publication a
copy of the able and eloquent Valedictory Address delivered to our
Class last evening. Hoping to receive a favorable response, we have
the honor to be Your friends and obedient servants,
DAVID KERR,
JOHN KERR,
J. WATSON BARR,
WM. ATWOOD,
WALTER C. WHITAKER,
Committee.

Lexington, February 26th, 1847. ,
Gentlemen: The Valedictory, of which you sb courteously request a
copy for publication, is the substance of one prepared by me for a simi
lar occasion ten year^ ago. It is — ^as it is — youfs.
And may you, and those you represent, each and all, carefully follow ¦
its counsels, exemplify its principles, and attain the destinies to which
they point, and, if properly regarded, will surely conduct you.
Truly your friend,
GEORGE ROBERTSON.
Messrs. Kerr, &c., &c.

ADDRESS.

Gentlemen ofthe Senior Class of ihe
Law Department of Transylvania ;
Our didatic course is now finished. We as
perceptors, and you as pupils, are here together
for the last time; and the memories of the past,
aud the prospects of the future, now all at once
clustering around om- hearts, impress this
closing scene with an unusual pathos and so
lemnity. Your voyage of discovery, though toilsome,
has, we trust, been correspondingly profitable
And now, in sight of teera fiema, it is natural
that each of you should feel some of the emo
tions of Virgil's voyager, when — cheered -with
the first glimpse , of recognized land, long
soughs and desired as his home — he cried out
Italitim! Italium! But, unlike his joy, yours
is mixed with sorrow — and, unlike his hope,
yours is clouded with the unknown shadows of
uncertain destinies.
After long and interesting associations, pecu
liarly endearing we shall all soon part —
where or when to meet, or whether ever again
on earth, no one knows; and where you are
to land, and what is to be your doom, the un
written page of time to come alone cau tell.
Having now finished your soholastic course,
you will- soon take leave of this institution, of
your preceptors, and of each other, and enter
as men, each for himself and in his own strength,
on the sober and important business of active
Ufe, in which your own conduct may fix your
destinies forgood or forill, for -weal or for woe,
for time and for eternity.
Although our professional relations are now
dissolved, we feel it our duty before we sepa
rate, to tender to you the offering of our fare
well blessing and parting counsel; and this last
duty, resulting from our receut relations, is not
the least difficult fo us or important to you.
In attempting to discharge it we feel its pecu
liar delicacy and responsibility; and therefore,
¦with becoming sensibility aud solicitude, we
invoke your candid consideration of the vale
dictory suggestions which we ¦will proceed to
offer with all the sincerity and plainness of a
parting friend.
Ha^ving been under our tutilage, and bearing
with you our credentials our precepts and our
hopes, we feel a solicitude, almost paternal, for
your future welfare and usefulness. We have
faithfully endeavored by proper tuitiou, to en
lighten your minds with the elements of juris
prudence and to prepare you for becoming, in
proper time, useful citizens, sound jurists and en
Ughtened etatesmen. In all these relations yon

may be usefully and Jionorably distinguished.
Your recent opportunities and yourprefessional
pretensions, impose on you peculiar obUga
tion to your Alma Mater, to yourselves, your
friends and your country. Much will be ex
pected, much required of you — aud be assured
that all you have and can acquire aud do, -will
be necessary for the proper fulfillment of your
various duties, or the realization of high and
honorable anticipations.
We may presume that most, perhaps all of
you, are destined first for the Bar. The sphere
of the popular and enlightened Lawyer is very
comprehensive and elevated. It embraces the
personal, social, and civil rights of his fellow
men, and all the various and important interests
and relations that depend on human laws. To
act usefully and honorably in such a sphere,
requires careful discipline, great knowledge
and rare endowments, moral and intellectual.
Ministering at the alter of -Justice, lawyers
should have clean hands, wise heads, and
pure hearts, lest they profane the temple of
jurisprudence, and sacrifice the lives, the lib
erty, the property, and the reputation of those
who repose on their oounsel and trust in thair
protection. The welfare of society depends,
to a great extent, on the character and conduct
of legal men. And, notwithstanding the prev
alence of a vulgar prejudice against them as a
class, they have an acknowledged and com
manding influence, and therefore must nec
essarily do much good or much harm. In an
intoductory discourse we made some general
suggestions once, respecting the eniinent digni
ty of jurisprudence and the high rink and in
fluence of the gentlemen of the bar; and those
suggestions have been since coroborated on an
interesting occasion, illustrated with much lear
ning by an eminent citizen attached to a rival
profession, who, in estimating the relative in
fluence of the various classes of society, conce
ded the second place to the lawyers — the first
being, of course, allotted by him to the fair.
Such a juxtaposition, if deserved, should be as
inspiring as it must be grateful and honorable.
But to merit and maintain it, requires a
purity of purpose, a propriety of conduct,
and a degree of intelligence which have not
always characterized professional men of eve
ry denomination; and this is an age of renova
tion and light; all branches of knowledge, and
all orders of society, are in a rapid progress of
improvement. To maintain its high rank and
ensure a benificeut influence, the western Bar
must be quickened hy the regenerating spirit of

236

VALEDICTOEY ADDRESS, DELIVERED

the times, and must elevate the professional
standard and advance in that knowledge and
in those virtues which will become more and
more befitting their American character. To
be useful or suceessful on tho forensic arena,
you must, gentlemen, be panoplied with the
armor of legal learning, literai-y taste, gener
al science, habitual prudence, moral principle,
and practical wisdom. A thorough knowledge
of scientific and practical law, should be the
leading object of your professional ambition
and pursuit.
Public expectation, the dignity of your pro
fession, the interests of justice, and your own
duty aud fame, -will demand the attainment of
what you will profess to have — au accurate
knowledge of the laws of your country in all
their departments and relations. The want of
such knowledge cannot be supplied by fidelity,
however undeviating; integrity, however scru
pulous; miscellaneous learning, however ex
tensive; or talents, however solid or brilliant.
Do not repose iu confidence, or ;»resunie too
much on the elementary knowledge you have
acquired whilst here. Though you have learned
much, you are only initiated into the first prin
ciples, and prepared for the successful study of
legal science, the most of ¦which is to you, yet
a TERRA INCOGNITA, far beyond the range of
your circumscribed horizon. You may learn
all your lives, and the more you learn the
more you will find to be learned: To attain
the utmost that can be accomplished, it is im
portant to make a judicious selection of books,
to read them properly, and to make a system
atic appropriation of all your time. It is not
the number, but the kind of books, and thc
manner of reading them, that will be most
useful. The most scientific and approved edi
tions of elementary books should be studied,
carefully compared with thc cases to which
they refer, and tested, when doubtful or anom
alous, by principle and analogy — and such text
books as Blackstono, Cruise, and Kent should
be periodically reviewed as well as occasionally
read. The more important of the adjudged
eases should be read carefully and compared
and collated; and a commonplace manuscript,
arranged by titles, alphabetically, would be
both eminently useful by imprinting new doc
trines on the mind, and always of great value
for occasional application. An adjudged
point, unreasonable or inconsistent with anal
ogy or principle, should not be regarded as
conclusive evidence of the law, unless it shall
have beeu long acquiesced in, or more than
once affirmed — and unless, on a survey of all
material considerations, you feel that it is bet
ter to adhere to it, than, by Overturning it, to
produce uncertainty and surprise. Stare
DBOisBS should be thus and only thus under
stood and appUed. StabiUty and uniformity
require that authority, even when conflicting
with principle, should sometimes decide what
the law is. But, in all questionable cases.

follow the safer guides — reason and the har
mony of the law iu all its parts.
Whenever consistent with otiier aud more
important engagements, make it a rule to de-
yote some portion of every secular day to the
reading of law; and whenever you can, con
verse on legal subjects — this will tend to gi-i^e
clear and practical conceptions of legal princi
ples, an habitual directness and facility
in communicating what^ you kno-\v, and a
taste for legal investigations which could not
otherwise be acquired.
But the habit of intensely thinking and care
fully writing on the more abstruse doctrines of
the law Avill be still more useful. Unless we
meditate on what we read, and see, and hear,
until we rightly understand it, we can never
make it our o-wn, or use it properly or effectu
ally. Reading and observation only supply
materials for meditation; aud intellectiial ru
mination is to the mind what mastication and
deglutition are to the body. But it is intense
thinking alone that can digest and assimilate,
into a tongonial and vitaUzing essence, the aU-
ment of the mind. Intensity of thought is as
indispensable to the nutriment o'f the mind, as
the gastric solvent and vascular labaratory are
to animal digestion and life. No man was ever
truly great or ufeful who did not think much
and well; and many have been practically wise
without reading books. Patrick Hem-y's chief
book was the volume of nature — but he thougjit
witha peculiar interest and intensity — and thus,
the carver of his own fortuue; he became one
of nature's tallest noblemen. But he did not
know much law. To have acquired that sci
ence it was indispensable that he should have
read as well as thoughtmuch. Proper reading
furnishes food; right thinking digests it; and
careful writing and speaking rectify it, and cir
culate the vital product. Bacon has said —
"Much reading makes the full man; much think
ing makes the correct man, and much -svriting
makes the perfect man."
Let your miscellaneous reading- harmonize
with your professional duties. Be careful
never to indulge it to such au extent, or in
such a manner as to seduce from a proper al
legiance to the law, or generate ascetic habits
or epicm-ean appetites, incompatible with th«
robust health aud masculine vigor of the legal
mind. But general knowledge is as useful to
tire lawyer as to any other mau. Whatever
will furnish the miud -with light, or impart to
it vigor, health or discipline, must be peculiarly
useful to one whose professional avocations re
quire, in au emhient degree, analysis, illustra
tion, and persuasiveness. All branches of
virtuous kUowledge mutually aid each other.
The sciences are united by a common sympathy,
called by Cicero commune ¦vinculum.
"All are but parts of one stupendous whole,
Whose body nature is, and God the whole."
All eminent jurists have beeu enUghtened
by general learning. The example of Cicero,
of Bacon, of Hale, should never be forgotten-

BEFORE THE SENIOR CLASS OE TRANSYLVANIA.

287

Cicero was one of the most profound philoso
phers and polished scholars of erudite Rome;
Bacon's great miud was enlarged and liberal
ized by universal science; aud Hale, among the
most learned of his day, and a christian too,
was, according to Ruunington, of tho opinion
that "uo man could be master of any profession,
without ha-^diig some skill iri all the sciences."
This infallible truth has not been universally
felt. But we have some reason for hpping that
a more propitious era has come, or is coming,
when all, who feel true professional pride or
have a just sense of professional dignity and
obUgation, will know that general science can
not be neglected ivithout great danger of abor
tion and degradation. Civil history, mathe
matics, philology, geography, moral, political,
and physical philosophy, and medical jurispru
dence; may be deemed essential; and polite
Uterature aud some acquaintance with the
fine arts -will be highly ornamental and useful.
Without some acquaintance with these various
branches of knowledge, the la^vyer must enter
the arena unarmed, or armed only with the
rough aud unwrought club of dry, hard, tech
nical law. Medical jurisprudence has been too
generally neglected. Every lawyer should ac
quire some general and correct knowledge of
anatomy, human and comparative; of physiolo
gy; of chemistry; of materia medica; and pa
thology. An accurate and practical acquaint
ance -with the purity and power of your ver
nacular tongue should be deemed a sine qua
NON. And such an attainment implies no small
degree of literary taste and study, as well as
much attention and habit. In fine, it is impor
tant that a lawyer should learn all that it is
useful for mau to know. And the more he
learns, the more he will be able aud inclined
to learn, and the more humble aud less dog
matic and pedantic will he be, and seem to be.
There is no danger that you can know too
much. Whilst the moral and physical universe
is around you, your minds cau never be inac-
active, full, or satisfied. The higher you as
cend the topless motmtain of knowledge, the
clearer -will be your horizon; but, should you
climb to where no mortal footstep has ever
been, you will then be but the more sensible to
the evidence of your own inferiority and igno
rance, when, from yottr peerless eminence, for
the first time, the interminable wildei-ness of
unexplored knowledge, indistinctly opened to
your enlarged vision, will appear as a world,
contrasted with the little spot which, in a life
time of toil, you had belted and enclosed as
your intellectual domain, and which, so insig
nificant in your more comprehensive eye, seems
to the microscopic vision of those below you
to be the NE PLUS ultra of human attainment.
A judicious distribution of your employments,
and a systematic allotment of your time will
afford you leisure for every reasonable purpose
and enable you to acquire a mass and a kind of
knoT^ledge which can be attained by no other
means.

Be carofurnover to pause in your pursuit after ,
useful information. Tho mind cannot remain
stationary — if it make no advance, it must ret
rograde; nor can morals st^nd still — and as
nothjng can contribute so much to your dignity,
influence and happiness, as tiie activity and
improvement of your own moral faculties,
therefore, if you wish to be happy or useful —
if you hope to be gratefully remembered
among men, and to be ranked with the good
and great of your species, be ever mindful that
God has identified your peace and your honor,
your duty aud your usefulness, with intellectual
activity and moral piu'ity and light. Never
neglect the map of nature always unrolled be
fore you — nor tho sacred volume of revealed
truth, in -which, when properly studied,' trtie
and practical wisdom, elsewhere unattainable,
¦will certainly be found; aud remember that
whenever true "Science builds a monument to
herself, she erects an altar to God."
But do not read more ;than you can under
stand, nor oppress the mind or impair the health
and vigor of the body by excessive or indiscreet
study. The studious mind reqiures occasional
relaxation aud relief. Let these be judiciously
afforded by physical exercise and interludes of
innocent and improving amusements. But
never suffer the mind to become rusty from in
dolence, to be seduced by the allurements of
vice, corrupted by sensuality, or unhinged by
vacuity. Dr. Johnson's expedient forprevent-
ing Hypocondria was-^never tobe alone when
idle, nor idle when alone; and it is worth being
remembered and tried. Physical exercise, lit
erary companionship, and moral conversation
will be sure antidotes to gloom and cynicism;
and music, Luther's intellectual Catholicon —
next to the Bible in his judgment, as an adver
sary of the devil — should not be derided or uu-
dervalued. It exhilerates and tranquilizes the
mind, elevates and purifies the heart, and thus
contributes much of what scarcely any other
amusement can, as innocently, contribute to
improvement and happiness. Nor are gymnas
tic and other athletic exercises, for health or
amusement, either useless, or incompatible
with personal dignity or intellectual eminence.
They not only tend to impart vigor and health
to the body, elasticity and tone to the mind, and
simpUcity to tho moral character, but, when
properly regulated, they render us more amia
ble and useful. Behold Professor Playfair,
when a septegenaire, ¦with the spring and mus
cle, of manhood, leaping with the young ath
letes of Edingburg— Alexander Hamilton,
playing marbles with his Uttle children — Pat
rick Henry tumbling wiUi his household Gods,
:and playing the fiddle for thBm to dance — and
a Chief Justice Marshall, throwing aside the
TOGA pretbxta, and as a youth, con amore,
pitching quoits with the young men of Rich
mond. These and many others of the distin
guished great men were exemplars of the sim
ple dignity, amiable condescension, and prac
tical utility of true wisdom. Knowlsdge, to

238

VALBDICTOR Y ADDRESS, DELIVERED

be most useful, must be communicative, unaf
fected aud benevolent. Such knowledge illus
trates the social and civic virtues, and is equally
opposed to haughtiness, to artificial dignity, to
iucivism, and to misanthropy. The honest
face of virtuous nature, always attractive — if
distorted or disguised by ignorance or false
pride, is metamorphosed into corsitted, cadav
erous, repulsive art. A virtuous and enlight
ened mind, necessarily unaffected, hupible and
cheerful, will, like the sun, shed its vi^rifying
light around the young and the old, the rich
and the poor, the lowly and the exalted; and,
by acting in harmony with chaste natm-e's
laws, will refresh and edify, wherever there is
any ¦ sympathy with its cheering influence.
This is nature unmocked— dignity uuecUpsed.
Appollo should sometimes play on his lyre, and
Hercules with his distaff. That is a false and
pernicious dignity which chills the warm emo
tions ofthe heart or hushes the soft accents of
nature's voice. Achilles was never so attract
ively interesting as when agonizing in the dust
for the death of Patrocles; nor did the aged
Priam ever appear so amiablej as when, with
trerubling frame and streaming eyes,- he begged
the lifeless body of his son Hector. , These
were nature's doings, and among her proudest
achievements; exhibiting, in the one case, the
most impetuous of heroes tamed and subdued
by the tenderness of a holy friendship; aud, in
the othpr, the majesty of a King mildly mingled
with the tenderness of a kind father. You re
member the stem and towering Pyrrhus — being
rebuked for the uustoical weakness of shedding
tears for the death of his wife, and urged to
assume the aspect of a Philosopher unmoved,
he exclaimed — "Oh, Philosophy! yesterday
thou commandest me to love my wife — to-da}'
thou forbiddest me to lament for her!" And
being told that tears could not restore her, he
repUed^"Alas! that reflection only makes
them flow faster."
The reasonable indulgence of the aflectoins
and emotions of the heart is not only happying
but meliorating, and is one of nature's expedi
ents for civilizing mankind aud saving them
from selfishness and vice. The most wise and
honored -should always act as rational men,
and never rebel against Heaven, or commit
treason against nature, by attempting to des
troy or to conceal those emotions which belong
to the wisest and best of men for the wiset
and best of ends. Let them then be en
joyed and acted out in a becoming manner
by the most exaUed of our race, as long as
they wish to be considered as men. Such a
course secures the intellectual Sun from eclipse,
disrobes knowledge of the cold and mystic
cloud of pride and hypocrisy, and presents it in
all the simplicity and radiance of its native
grace and intrinsic loveliness. He who never
seems to feel, either never feels at all, or as
man ought to feel; and others -will never feel
much affection or respect for hita. But in the

t«nd«r •yinpftthies of pure heart*, there i* "ft ^becoming modesty, active benevolence, ha-

joy unspeakable and full of glory" — and re
member; "The path of sorrow and that path alone;^
Leads to the land where sorrow is unkno-wn."
In discharging the various duties incident
to your profession', you will find use for all
human knowledge and moral power. Sailust
doubted whether a higher order of talents and
attainments was not necessary to make a good
historian than an able General. But can there
be any doubt that tha beau ideal of an eminent
lawyer requires 'more knowledge and moral
power, than what might bs sufficient to make
an able General? PrudeUce, sagacity, decis
ion, courage — are the chief attributes of able
fieneralship. ¦ The able and honest - la^wyer
must have these and more. Hemust have a
profound knowledge of law, an acquaintance
with general science and polite literature — in
tegrity of principle and of character, and a pe-
culiar^fapulty of speech., Nothing is more dif
ficult or interesting, or requires more varietj-
of attainments, or greatfer compass or power
of mind than a forensic argument, in a great
and difficult cause, addressed to the reason,
the hearts, and the passiops of men in behalf
of truth obscured by sophistry, justice op
pressed by power, or innocence persecuted by
malice and falsehood. In such a cause, all
that is most good and great in moral power
may be necessary and will ever be most useful.
A man of the ordinary grade i/f intellect
may, by assiduity, perseverance and fidelity, '
become a respectable lawyer, and "get along"
in his profession. But talents the- most ex
alted — knowledge, mostprofound and various;
industry, most regular; honor, most chival
rous, and integrity, most pure and inflexible,
must all be combined in him who is eminent
ly distinguished for forensic ability.
Talents, however bright^knowledge, how
ever great^ — will be unavailing or pernicious,
without habitual industry, systematic pru
dence, and perfect, honor. What Johnson
said of Savage, and Butler of Sheridan, is
universally true — "Thosewho, in confidence
of superior capacities, disregard the common
maxims of life, wiU be reminded that nothing
will supply the want of prudence, and that
negligence and irregularity long continued,
will make knowledge useless, wit ridiculous,
and genius contemptible.'' No lawyer, who
neglects that maxim, can be true to his clients,
to his own fame, or to the dignity of his pro
fession. And here we deem it not inappropri
ate to invite your attention to the importance
of a peculiar propriety in personal and pro-
fessionkl deportment; and also, to the necessi
ty of, what may be termed, forensic ethics.
1st. A lawyer should be a gentleman in his
priuciples, his habits, and his deportment; in
fine, a gentleman in the sterliug import of the
terra — else he brlBgs degradation on himself,
and helps to reflect discredit on the profes
sion. And to be a gentleman in the true and
perfect sense, is to be — ¦what is too rai^e — a
man of sound principles, scrupulous honor,

BEFORE THE SENIOR CLA:SS OE TRANSYLVANIA.

339

bitual morality, and rational, just, and polite | or sujierior knowledge, his success iacredita-
deportment. ble; but if . he beat him in cunning, fraud or
2d. In his intercourse with his clients, he ' ' ' ^' '' " ^ '' " 

should be candid, respectful, patient, liberal
aud just. He should never advise a suit un
less it is the interest of his client to "go to
law." If the case be frivolous, orthe right
doubtful, he should advise forbearance or com
promise. He should never encourage litiga
tion. When a suit becomes necessary, or is
pending, his_| fee .should be regulated by the
value of his services aud the client's ability
conveniently to pay. Au honest man will
never barter his conscience, nor will, an hon
est la^wyer ever speculate on the ignorance,
the fears, or the passions of his confiding cli
ents. A faithful lawyer wUl. never decei-ve
his cUent nor neglect his business. It js his
duty, and his interest too, to deal in perfect
candor, and to do, in the preparation of %is
cUeut's cause, all that he ought to do; and
that is, all that he can do consistently with per
sonal honor or professional propriety. If, in
consequence of his negligence, misdirection,
or unskillf ulness, his client's claim unjustly or
improperly fail, he should indemnify hjrti,
fully, promptly, and .cheerfuUy. He should
never attempt success by any other than fair,
honorable, and legal means; nor should he ad
vise or connive at the employment of any other
means by his client. He is not bound by any
obUgation to the dignity of- his profession to
abandon hiS client's cause, merely because he
may discover that he is on the wrong side;
for he might Be mistaken in his opinion,, and
might do great injustice by turning against
his client. And also, it is his duty, whether
in a good or bad cause, on the wrong side or
the right, to present, in as imposing a manner
as fair argument can exhibit, the stronger or
more plausible points in his client's behalf,
without expressing an' uncandid opinion. In
no case should ha ever express, as his opin
ion, any thing but his opinion. To do so
would not only be inconsistent with the j)ro-
priety of his profession, but would surely im
pair his influence, subtract from his reputa
tion, and render it altogether uncertain wheu
he thinks what he says.
3d. Towards the court he'should be respect
ful and modest, but firm and candid; and he
should never endeavor to elude his own respon
sibility, by attempting to throw itunj.ustiy on
the court. This artifice is but too common.-
It is, however, not only disingenious, but dis
creditable and disadvantageous; because it
is dishonorable, and tends to disparage the
the courts of justice, in which public confi
dence is indispensable to a satisfactory ad
ministration of the laws.
4th. In his intercourse with his profession
al brethreii, he should be courteous.'just, and
honorable. He should repudiate all dissimu
lation and low cunning, and all those common
place and humiliating artifices.of Uttle minds,
which constitute chicanery. He should de
sire only an honorable victory; such as piay
be won by fair means and fair arguments. II
he beat his antagonist by superior arguments

trickery, he degrades himself, proetitutes his
privUeges, and outrages forensic dignity and
propriety. Such vulgar game is beneath the
pride, and revolting to the honor of lofty intel
lect. It is the offspring of moral infirmity,
and is, almost always, proof of a diminutive
mind.

5th. A lawyer can hardly be both merce
nary and, just. An inordinate appetite for
gain, is apt to seek gratification in spoliation,
fraud and oppression, and is generally the
companion of a cold and calculating selfish-
nesSj irreconcilable -with the most attractive
and useful of the personal, social and civic vir
tues. Avarice is also undignified and unrea
sonable. He, who is not content with a com
petence for independence aud rational enjoy
ment, has a morbid appetite which this world
can never satiate — because it. craves to hoard
aikd not to enjoy. More than a competency is
not necessary for happiness, and is but sel
dom consistent with it.
"Reason's whole pleasure, all the joys of
sense.
Lie in threi- words — health, peace an,d compe
tence."
And the book of books tells us, that it is al
most impossible for a very rich man to reach,
or, if he could reach, to enjoy heaven; because
he is almost sure to be sordid, and to look on
ephemeral, earthly possessiens, as his suwi-
mum bonum, or supreme good. It is almost as,
difficult for a rich man ever to become a great
lawyer. There are but few who cau be stimu
lated by ambition or taste alone, to encounter
the toil and vexation, the sleepless nights and
anxious days, which must be the price of fo
rensic eminence. And he who desires that
his last moments on earth shall be gilded
with a firm assurance that his children,
whom he has pledged as hostages to posteri
ty, shall be useful and honorable in their
day, should not be solicitous to lay up for
them, more of this world's goods, than- barely
enough to enable them to give to their moral
and physical powers proper means of employ
ment and development. Why then should
we court an empty and delusive shadow?
Worse — au ignis fdtuus, that too often lures
from the straight and open path of virtue and
happiness? for we know how few there are,
or ever have been, who dedicate their surplus
wealth to its only useful and proper end — be
neficence. 6th. But it is the duty of every tnan to en
deavor ¦ honestly to acquire and retain the
means of a proper independence. Industry
and economy are therefore social virtues — and
the lawyer, as well as any other person, should
be paid adequately for his useful services.
But this should be with him a secondary ob
ject. A proper administration of the laws,
usefulness to his countrymen, and his own
fame, should be the prime and controUing
motives of his professional labors and ambi
tion.

240

VALEDICTORY ADDRESS, DELIVERED

Concurring altogether in its truth, and
deeming it here appropriate, we cpmmend to
your approving consideration and abiding re
membrance, a sentiment of the qpen-hearted
arid gifted .Burns:
"Tb catch dame fortune's golden smile,
Assiduoijs -wait upon her,
And gather gear by every wile
That's justified by honor.
But not to hide it in a hedge.
Nor for a train attendant,
But for the glorious privilege
Of being iNDSpesdent."
"th. It is also very important that you
should be able fo communicate effectually
what you know and feel. And tb possess
this eminent faculty, it is necessary that you
should understand and feel your subject, and
have an articulate and well-modulated voice,
appropriate action and a pure and felicitous
ntyle. No speaker can be understood, who
does not himself understand his subject, nor
make others feel what he does not himself
feel. Others "will never be enlightened by the
mind of him who has no light, or moved by
the tongue of him whose own heart is un
moved. Eloquence is the voice of •truth and
of nature. It springs from the head and the
heart — a clear head and a benevolent heart,
are the living fountains, without which, no
limpid stream of eloquence will ever flow.
Nothing can supjjly the want of good thoughts
rightly felt. Tho stammer of Demosthenes
and the wart of Cicero can never help a tur
bid brain or a callous heart — nor can, all the
"coniortionsof ihe sybil" enlighten the head or
move the heart without her "inspiration.".
But a good manner and appropriate style im
part to good thoughts tlieir true grace and full
effect, and are therefore important.
Every speaker's manner should be his ov^n.
A natural manneris the only good oue. The
attitudes, expression^ and intonations of na
ture may be improved by judicious art, but
never by servile imitation. The veice, espe
cially, may be wonderfully improved in dis
tinctness, melody and power' — but with all the
improvement of which it may be susceptible,
it should still be natural. Mimicry is un
seemly and ridiculous, and many a puTjlic
speaker has been spoiled by attempting to
follow some popular model.
Language, being the dress of thought, should
be chasto and appropriate. The principal de
fects in Weslern elocution, and especially at
the bar, are verbosity and vociferation — too
many wordit, and too much noise. Our foren
sic style is goncraUj' too copieus — and of most
of our best speakers, the remark applied to
tiibbou inigh'i, wilh more proprie! y be niad^ —
"the thread of his verbosity is (sometimes)
dra^wn out too fine, for the staple of his argu
ment." The style should bo adapted to the
subject aud the occasion, and should always be
pure and clear. This is the only safe or uner
ring rule. A speaker should never bawl or
scream. His intonation should be regulated
bythe subject and the natural volume of his
voice, but in such manner as not to be disa.T

greeable or unintelligible; and it is airways
very important that it should be distinct
and audible. More words than are necessary
to express the idea or emotion, just as it is in
the head or heart of the speaker, should not be
employed —
"Words are like leaves, and where they much
abound,
Sound fruit or solid sense is seldom found."
fhe true orator is never arrogant, presum^-.
tuous, pedantic or theatrical. Eloquence is
well personified by Homer in his delineation
ofthe style and manner of Ulysses:
When Atreus' son harangued the listening
train.
Just was his sense, and his expression plain;
His words succinct, yet full without a fault —
Ho spoke no more than just the thing he
thought.
But when Ulysses rose in thought profound.
His modest eves he fixed upon the ground
As one unskilled, or dumb, he seemed to stand.
Nor raised his head, nor stretched his Scepter-
ed hand.
But when he speaks, what elocution flows.
Soft as thefieeces of descending snows.
The copious accents fall with easy ait.
Melting, they fall, and sink into the heart.
Wondering, we hear, and fixed in deep sur
prise,
Our ears refute the censure of our eyes."
Here was no foaming or thundering — no re
dundance—no affectation— no visible artifice —
no unnatuial drapery; but all was naked
thought and feeling, presented in chaste na
ture's simple dress. Such is eloquence, and
such, in a great degree, was that of the great
popular orator of America — Patrick Hem-y —
who, had ho possessed the literai-y advantages
aLd habits of reading with which some men
have been blessed, would, doubtless, have
been the most perfect model of human- elo-'
quence. Written or committed speeches are danger
ous things to lawyers. Understand your sub
ject thoroughly, and trust to the inspiration of
the moment — nature will then do more for you,
as to manner, than all the elaborate prepara
tion of the closet.
8th. But the nature of forensic controversy
requires that lawyers shoukl possess a pecu
liar kind and eniinent degree, not only of
knowledge and persuasive elocution, but of
dialectical skill. We do not mean, the verbal
sophistry of the schools, nor that vulgar habit
of weak and skeptical minds, of arguing as
plausibly on the wrong as ou the right side;
but wo allude lo that faculty possessed only
by a gifted few, of jnesenting the strongest
idea'^ iu their utmost foi-ce — of exhibiting the
whole truth iu its fullest effulgence— or of
throwing over il, ¦when expedient, the great
est obscuration.
Thucydides said of Pericles, as proof of his
almost superhuman power and. deiftfirity of
argumentation — "when I have got him down,
he cries out he is not vanquisheii and persuades
'¦every bodg to believe him." This, wonderful de.

BEFORE. THE SENIOR CLASS OP TRANSYLVANIA.

241

bater did not resort to the shallow artifices of
the pedantic quibbler described by Hudribas:
Who could "on either side dispute.
Refute, chauge sides, and still refute — "
but his resources were those of a mind that
could perceive moat clearly — a heart that
could feel most keenly — and a tougue that
could speak most seductively all that he saw,
and thought, and felt. Common sense Avas
his ndagic wand. It was also Patrick Henry's
great lever. This — the soul and end of all
knowledge — cannot be acquired in the closet,
norfound in books. It is Instinctiye and prac
tical — the offspring of native sagacity, and of
an intelligent observation of things as they
actually exist. Without it, all other knowledge
will be comparatively useless, and may be easi
ly misapplied and perverted. It is the visual
organ of the body of hsmaii knowledge, with
out which, the mind is a labrynth without a
clue, or, when fullest of speculative wisdom, is
like the blind giant striking in the dark.
Be careful, therefore, gentlemen, to learn all
that can be gleaned by rational induction from
all things that come within the range of a reas
oning and discriminating observation. The
rare knowledge that can bo only thus acquired,
will be necessary to enable you to apply all
that you have and know, most honorably to
yourselves and usefully to mankind. "
9th. A nuzzling pettifogger — sctob ne ultra
CEEPiDAii — is one of the most contemptible and
pestUent of human beings. A dishonest law
yer, of ingenious talents, is one of the most
dangerous and terrible of the whole animal
kingdom; but an enlightened and virtuous
jurist is a sentinel of liberty, a minister of jus
tice, a guardian of peace, on a lofty eminence,
waving over the admiring multitude below and
around him a piire white flag, bearing as its on
ly motio. Law and Light, Protection and Eight.
Such a lawyer is the friend of the honest poor
— the counsellor of the ignorant — the champi
on of the weak- -the avenger of the wrong, and
the advocate of right, public and private.
10th. But, gentlemen, to become eminent and
useful lawj'ers, you must resolutely guard
yourselves against two of the besetting sins of
your profession — premature distinction, and
political ambition.
You must be patient, constant and persever
ing. Professional ability and fame are ripe
fruits of toil and of time— the lucubrationes
viginiti annorum are not more than sufficient
for their full maturity and grateful flavor.
Itis neither prudent nor jnst to solicit more
business than you can manage well; and a
junior apprentice cannot well manage much.
Too much will occasion abortions which may.
fix upon you a character which it will be dif
ficult to change. It will be much more pro
pitious to your future fortune apd fame, that,
in your initiative practice, you attend satis
factorily to a few cases, than negligently or
unskillfuUy to many. Tou must not yield to
despondency— whatever may be your difficul
ties or prospects, industry, perseverance and
fidelity will ensure ultimate success. The
best and most enduriUg products are of slow
31

growth, and many of the greatest la-wyers
who ever adorned the profession, have en
countered and finally overcome years of ob
scurity, poverty and discouragement. But
mark! Their season of trial was improved by
unremitted study and observation. And here
allo-n' us to admonish you never to ask for em
ployment, or hunt for clients, or underbid
your competitors. No practice is more hu
miliating, or can be a more certain index of a
destitution of merit; and, in the end, if not at
the beginning, it must operate injuriously.
"The cheap lawyer," like "the cheap mer
chant" and "the cheap doctor," is generally,
when the whole truth is known, the least-use
ful and the most costly. Instead of obtruding
yourselves into business, or degrading your
selves by becoming the lowest bidders, prove
yourselves worthy of public patronage, and
clients will hunt you, and honorable and just
employment will be certain.
11th. Beware of the seductions of political
life. Whenever the tumult of the comitia be
comes music, to your ears, the grove of Egeria
will be deserted or too much neglected. It is
difficult for practical law and politics — though
twin-sisters- — to live and labor together pros
perously in one household, and under the same
guardianship. A young lawyer, attending
properly to his profession, cannot be a very
useful or distinguished statesman; nor can
such a statesman easily or conveniently be a
first rate practising lawyer. To become either
useful or eminent as politicians, your time and
talents should' be chiefly dedicated to politi
cal study and duty — so as to render a proper
devotion to the law impossible — for to be qual
ified to earn political renown or do much pub
lic good, impUes an extent of statistical, politi
cal and practical knowledge, which are the
rare fruits of intense study, great talents, long
service and matured experience. How insig
nificant is the upstart and shallow quid nunc
who knows nothing of politics but what he
reads in partizan newspapers, or hears in the
street, on the stump or iu the legislative hall.
And how ineffably contemptible is the vulgar
miscreant who, not desiring to know anything
higher than party discipline, nor to feel any
thing, better than party devotion, stifles con
science, prostitutes reason, and degrades his
own nature to an approximation to that of the
tiger or the wolf, in sacrificing, with a blind
.servility and fanatical alacrity, justice, princi
ple, judgment, patriotism, and himself, ^as a
mercenary offering to the rapacity of apolitical
Juggernaut? To render valuable service or acquire hon
orable falne as statesmen, you must think for
yourselves, and act as you think, and all
alone for the true welfare and glory of your
common country. And all this will require
probity, firmness, and intelligence of no com
mon cast. The subterranean path ofthe selfish
politician is dark and devious, and full of per
il — the sword of Damocles hanging over every
turnof its meandering course. And the more
open and elevated way of the honest states
man, though radiant and straight, is beset

342

VALEDICTORY ADDRESS, DELIVERED

with corroding anxiety, envious obloquy and i servility and vice. Truth and probity, and
mortifying disappointments. But few, very talents rightfuUy employed, must finally tri-

few political men have enjoyed the triumph of
unvaried success, or have acquired honorable
and enduring fame — fewer ever reached the
goal of their hightest hopes— and fewer still
have been satisfied or content. Neither office
nor civic honors can confer solid happiness
and lasting renown; and therefore, neither
possesses anything for which, iu itself or on
its own account, it will ever be sought or de
sired by a wise and honorable man. When
not bestowed as the just reward of merit, but
obtained by stealth or solicitation as the price
of prostitution, they are but gilded ornaments
which will glitter but for a short time in the
eyes even of the ignorant or -unprincipled,
and can never serve as passports among hon
est and enlightened men. No active politi
cian was ever a man of tranquil mind — no
seeker of office was ever long contented — no
lover of office, who delighted in reflected hon
or, was ever both wise and virtuous. Beside.'*,
political aggrandizement is so fascinating, and
political ^mbition so all-absorbing as general
ly to produce tastes and habits unsuitable to
professional employments, and, but too often,
uncongenial with the pure feelings of disin
terested friendship, and the still holier sympa
thies and lovelier charities of private and do-
m.estic life. And like him "whose Empire has
been lost in the ambition of universal con
quest," the mau who attempts to become, at
the same time, a great lawyer aud statesman,
is almost sure to lose both objects of his enter
prise. It is as unreasonable as unjust to seek
political or official preferment until we are
qualified to be useful, and to earn honorable
distinction. Do not then, young friends, enter
the political arena, if ever, until you are prop
erly matured, or have determined to derlicate
all, or the chief of your time, to Ihe public
service. 12th. But the talents of every citizen be
long, in some measure, to his- country; and it
is the duty of every one to contribute to the
welfare of the commonwealth. If, therefore,
at any time, you should think that you may be
able to render valuable service in public life,
and should be prepared to surrender your pro
fession, or to make it only a secondary object
and occasional pursuit, wc would not dissuade
you from yielding to a spontaneous call by
your country into her public employment.
And should it be the fortune of any of you to
be thus engaged, never forget your sacred ob
ligations to truth, to patriotism, to honor, and
to justice. Remember that your own fame
will, at last, depend on your own integrity,
rectitude and talents: and that no man ever
acquired honorable and lasting influence
without intrinsic and superior merit. If yon
wish to be truly useful — if you desire the sin
cere esteem of virtuous and intelligent men —
if you hope for posthumous remembrance and
gratitude — be sure never to court or seek a
vulgar and ephemeral popularity, which is the
idol of unreflecting and unprincipled ambi
tion, and is caressed and won by duplicity.

umph over every combination of hypocrisy,
meanness and ignorance. The -straight path
of;light, and that alone, leads totrue honor
and renown. Never sacrifice judgment to pas
sion, light lo darkness, principle to interest,
or your own dignity or conscience to the blind
and ferocious idol of partisan faith and alle
giance. The sOul of most organized political
parties is selfishness — the end, power and
emolument in the hands of a few — the means,
mock purity, counterfeit principles, popular
excitability, passion and ignorance.
Look at democratic Greece, mobocratic Rome,
or republican Florence, or France, or Eng-
lanp, or America — consider ancient timas and
modern times — examine political parties of all
times — and the truth j«st uttered will not be
denied or doubted. The history of party un
der the Brunswick Dynasty in England isbut
au epitome of faction or selfish party every
where. Tou recollect that after Pultney,
Wyndham and Shippen, leaders of the mal
content whigs, the tories and the Jacobites,
crushed the Walpoleon party, they quaiTekd
for the spoils, and Pultney himself, thepopu
lar oracle, like all selfish men in power, apos
tatised and out-Walpoled Wiilpole himself, as
soon as he reached the premiership — the ulti
mate prize of his long crusade against de
nounced aristocracy and corruption. Such is
noisy vaunting patriotism — such is poor mortal
ity when puffed -with vanity, pampered with
flattery, or stultified by premature or unright
eous , ambition. We are even indebted for
Paradise Lost to Milton's blindness, occasion -
ed by the prostitution of his great mind to the
partizan drudgej"y of scribbling with intense
devotion in favor of the sanctimonious and Jiy-
pocritical Cromwell. And had he not -written
himself blind in the filthy cause of personal
politic?, he inight, have been long since for
gotten or remembered wilh regret for talents
perverted, and patriotism misguided. Gentle
men, always be independent, and give your
own reason full scope and fair play. Never
pin your faith on a politician's sleeve. "Gum
Platone errare quam cum aliis recte sentire" 
is yet the practical maxim of too many men
who are entitled to be free. The authority of
a gre.<it or popular name too often consecrates
error and vice bv coufoundiu!; them with
truth and virtue. Never flatter or deceive the
people. Honestly seek for truth and' justice —
and never either do or utter that which your
impartial and enlightened mind may condemn.
Such a course of conduct will secure for you
public confidence and esteem, whatever may
be your condition; .ind it will be almost sure
to obtain for you, sooner or later, a just share
ofthe public patronage — but, iu any event, it,
and it alone, will console you with an approv
ing conscience. And is it not better to live
liko Aristides or to die like -Socrates, than lo
be au Alcibiadcs or a Cleon, hoisted on the
shoulders of an insulted or deluded populace?
Nothing but virtuous motives and useful deeds
will embalm your names in the grateful re-

BEFORE THE SENIOR CLASS OP TRANSYLVANIA.

243

membrance of honest men; and an honest man
¦would be ashamed of any other fame than
honest fame. This alone is creditable — this
alone useful — this alone will be pure and
lasting. Xot what, for the moment, may be
popular, but what is right should be your
purpose. Have the courage tihyays tu do
right, and be afraid only of doiut;' wroii'j,'.
Honorable ends by honorable means — be this
your motto — and then, if you fall, you fall a
"martyr to truth, and will be blessed. But it
vou should ever rise by unworthy or di.-;honest
"means, you will, at last, surely fall, and be
cursed both in this world and inthat which is
to come.
"Oh! is there uot some chosen curse.
Some hidden thunder in the stores of Heaven,
Red with the uncommon wrath ,
To blast the wretch who ow^s
His greatness to his country's ruin."
Iu political, as well as iu civil and social
life, be justly tolerant. Every freeman has an
equal right to liberty of opinion aud of con
science. There is no real freedom when an
honest mau is denounced or disfranchised for
an honest opinion. In describing a perfect
democracy, Thucydides put into the mouth of
Pericles, "the following among other admir.a-
ble suggestions — "Not offended at any man for
foUowing his own humor, nor casting on any
censure or sour looks — we converse freely with
ene another without fear of offence, fearing
only to trans,5ress against the public."
Bui whatever you may be, you will be citi
zens of a country the most interesting, at a
time the most eventful, and under institutions
the most popular the world ever knoAV. The
pil|;rim fathers who planted the seeds of civil
and religious liberty — the revolutionary wor
thies who conquered tyranny, consolidated the
rights of man, and embalmed them in the af
fections of mankind — are all gone, aud wc, too,
of this generation, who have succeeded them,
will soon pass away and leave to you, who are
coming after us, and are about to take our
places, a land aud a government blessed, as
we trust, by a benignant Almighty, as the
abiding place of liberty and light for all gen
erations of meu in all times to come. We
have anxiously endeavored to assist you in
making some useful preparation for the enjoy
ments and the duties that'lie before you . The
field is unlimited- the harvest is ripe— the
precepts of Washington and the memory of the
iUustrious dead arc fresh and full before you—
the happiness of the living, your own desti
nies, aud the hopes of the unborn, rest upon
vou as among the laborers of the dawning
'day, and urge you to be in all things, and at
aU times, zealous, and active, and true. In
aU the relations oflife, important duties ¦ntiU
devolve upon you — and in all, however hum
ble or circumscribed, you may be eminently
and lastingly useful. Enlightened reason,
perfect justice, and comprehensive patriotism
and benevolence, should be your cardinal
guides . Cultivate, to the utmost, all your mor
al faculties— this you owe to yourselves, to

your fellow men, and to him who gave you, as
a sacred trust, all you have. Do all the good
you can to others by a scrupulous attention to
all positive and negative obligations, person
al, social, and civil; and never forget that you
should always "do unto others as you would,
— 3'our places being changed — wish that they
shuuld do unto you" — this is the golden rule
of philosophy as well as of religion. Cherish
a rational love of your country, uot only be
cause it is your country, but because it deserves
your love and support. But let your patriot
ism be not selfish or contracted, but; benevo
lent aud comprehensive — embracing your
whole country in all its parts, and interests,
and institutions, and with an intensity pro
portionate to the benefits it confers, and the
moral ties which bind you to it. Encourage
tho diffusion of moral, I'eligious and politifal
truth, and countenance organized efforts tend
ing to promote the common welfare. Never
encourage falsehood or vice, nor infect the
morals, pervert the taste, nor unhinge the
principles of any rational being by conversa
tion or example either demoralizing or licen
tious. The ruin of one immortal mind could
never be expiated by all the beneficence of a
long and active lifetime. But, as the surest
means of preserving every thing else most val
uable, strive, by all proper efforts, to maintain
unpolluted the principles of constitutional lib
erty and equality, to 'Uphold the authority of
law, and to strengthen thc ligaments and in
crease the harmony of the North American
Union. Thus you may be useful and honored
in your day, and inscribe your names on the
roll of virtuous and enduring Fame. And
thus, truly, you will have lived to the honor of
your race, and the glory of your age and coun
try. The good a man does dies not with him;
his example and his labors live aiid act long
after he is dead. Remember Socrates, Cato,
Newton, Sydney, Franklin, Washington, and
Marshall — ^their deeds live after them, and
will longliveto enlighten and bless mankind.
We must here conclude. The suggestions
now offered, though cursorily presented raptim
ei carptim, we beg you to consider seriously and
long remember.
You will no-w go forth as thc winds, to scat
ter over this great valley of the west seeds of
knowledge which have been gathered under
our auspices. May these take deep roots, and be
watered and nourished until they shall grow,
and fructify, and cover the land with a richer
moral foliage and a fragrance of more perfect
liberty and truth. Whatever may be your
destiny, may you ever cherish fraternal sym
pathies for each other, and a filial remem
brance of vour Alma-Mater. She will never
cease to fe'el a deep interest in all that con
cerns you, and in whatsoever you may do, or
may be; aud it will rejoice her to hear of your
prosperity and honest fame. May she, like
Berecinthia, be now and always—
Felix prole virura

Proud of her sous, she lifts her head on high.

344

VALEDICTORY BDDRESS.

Proud as the mighty mother of the sky —
And may we too be allowed to hope that
you will not forget irs, nor neglect our pre
cepts. If we have contributed to your im
provement, we shall be happy to hail you as
sons, and to be long- aud kindly remenabered;
and when our earthly course is finished, may
YOU, our cherished pupils and friends, still live
to adorn, to save, and to bless our beloved
country.'

Though — after our approaching separation —
we may not meet again on earth, yet, as we are
taught to believe, it will not be long until we
shall be re-assembled at the bar of Almighty
God, to be severally judged for the deeds of
our probationai'y pilgrimage. May the light
of that day, like a bright fixed star, guide us
from the snares through which we pass to thc
tomb, and cheer our liearts with a hope be
yond theii-rnve.

PRELECTION.

Lexington, Nov. 8, 1852.
Dear Sir: — The .uudevsigncd ha\-e been appointed a, Committee on
behalf of the members of the Law Class of Transylvania University, to
request of you a copy of your Introductory Lecture, delivered on the 4th
inst., for publicatioii.
We h-ope you may tindit convenient to comply with this request; as we
believe that the lucid and masterly exposition of the principles ,bf the
-Nme'rican Constitution, to be found ia that address, will have the tenden
cy to check the monstrous doctrines of nullification and .secession, which
threaten, ere long, unless firmly reisisted by the patriotic intelligence of
the people, to undermine the fabric of. our Government, and "to enfeeble
the sacred ties which now link together the various parts" of our beloved
country. We have thc honor to be, sir, ^vith very high regard, your
obedient servants, .T. M. HARLAA',
G. G. VEST,
V. H. LYNN,
Hox. Georgi; Robertson, Goinmillcc.

Lexington, Nov. r2th, 1842.
Gcntlciiirn: — .\bsence fro.Ti home has delayed an answer to your kind
note, requesting a copy of my Introductory Lecture for publication.
If the deliberate perusal of it in print, shall help to impress you with right
conceptions ofthe radical principle of the Constitution ofthe United
States, and ofthe extent of the powers ofthe Government it established,
the Lecture will have eifected as much good as I Could expect. It was in
tended for you alone., and, if its publicity shall extend its influence beyond
the Lecture Room, and tend, in any degree, to arrest the progress. of per
nicious errors, and to prevent the unhingement of the Government of our
model Union, I shall be more than compensated for my effort, through
you,* to contribute to save and exalt the o^reat work of the Washingtons,
and Madisons, and Hamiltons, and Marshalls of America.
In compliance with your request, therefore, I commit the Address to
your discretion, to be disposed bf as you deem best.
Yours, respectfully,
G. ROBERTSON.

ADDRESS.

WiiE.N the I'ederal Couyentiou of 1737 de
termined to substitute a constitution for a
league, a National Government operating- su
premely on the people of all the States, instead
of a confederation among thc States as polit
ical sovereigns — the character and scope of the
powers which the sovereignty of tho Union
should possess, presented a question of the
gravest consideration. The object of the con
templated Government was the union of the
people and the, States; and the ond of 'such
union was undivided nationality abroad, and
peace, justice, and security, as to all interna
tional interests and rights at home. Conse
quently, as experience had demonstrated the,
necessity of a supreme popular Government,
constructed by and responsible lo the people
of all the States, for effecting the desired ends,
wisdom and patriotism concurred in making
the authority of that Government co-extensive
with all international concerns. History, Phi
losophy, and the representative principle em
balmed in the Declaration of Independence,
all uuited in defining this as the true conserv
ative boundary between the Governments of
the several States, and thc comprehensive
Government of the United States. Common
interests should be protected by common coun
sels. No one of the States should possess any
arbitrary control over aft'airs involving the lib
erty, peace, or property of the people of all
the States. Whatever aft'ects the rights of the
people of all the States, or of more States than
one, ought to be under tho guardian care of
their common Government. As to all interna
tional concerns abroad, we have, and should
have, but one Government, and but one Na
tion — that of "the United States." And as to
all domestic concerns, in which the people of
the Union have a common interest, there
should be, and is, but one Goyernment — that
of the Union. Such powers as were essential
to that Government, were taken bythe people,
from their State Governments, and delegated
to the Ifational Goyernment, Avhich, being thus
derivative, possesses no power except what
has been given to it by Ihe provisions of the
constitution. And to avoid, as far as possible,
collisions bet-ween the States aud General Gov
ernment, as to their respective jurisdictions,
thc national constitution classifies and enu
merates the general powers deemed essential to
enable the latter to fulfil the ;;rea,t trust of
maintaining harmony, peace, and justice,
throughout the limits of the Union. But the
most eligible means of effecting the ends of
the enumerated powers being varipus, and of
ten changeful in their adaptations, they neither
were, nor could have been specified. It is an
undeniable principle of both jurisprudence

and philosophy thai , when jiuwer is granted
to an agent to do a designated thing, or a trust
is confided to perform a defined duty, all the
accustomed or fitting ineans of doing the thing,
or ei^ecuting the purpose of the trust, and
which the constituent, before delegating the
power or imposing the trust, might have em
ployed for the same object, are also- delegated
to the representative orgau, excepting only so
far as the character of authority shall have
qualified or restricted them. But lest this ax
iomatic truth might be sometimes questioned,
in its application to the constitution of the Uni
ted States — ^which recites the self-evident fact,
that the Govei'ment constructed by it, shall
exercise no power uot delegated in il — the
principle of implied or resulting powers just
suggested, was expressly recognized by the de
claration that, in addition to the enumerated
powers. Congress should possess all other pow
ers, "necessaiy and proper," for carrying them
into full and complete effect. Without that
prudent recognition, the existence of consti"uc-
ti^e powers would have been unquestionable,
aud their scope -would have been as compre
hensive, and the lest for defining it as clear,
as now. Implied poiver is only the right to
employ appropriate aud uuprohibited means
for fulfilling the ends of the express powers.
Is the thing- done or proposed under the claim
of constructive authority, a mean to an end of
any express ps-wer^is it expressly forbidden
by the constitution, or is it inconsistent with
its genius or any of its principles?
This is the true and only constitutional
touchstone of implied power. It is sufficiently
obvious, and can but seldom be of difficult o"r
doubtful application, bythe candid and intel
ligent mind, enquiring only for the truth.
If there be no express grant of power to
Congress to enact a statute for a specific pur
pose, the question of its constitutionality will
depend, 1st, ou whether there be any express
power, the end of which may be accomplished
or facilitated .by such legislative provision —
and 2d, on whetlier the prescribed measure be
interdicted by the constitution. The constitu
tional declaration that Congress shall possess
all power "necessary and proper" for carrying
inlo effect the express powers specifically del
egated, is notrestrictiye of thc universal prin
ciple, that a grant of express power to do a
thiug carries with il authority to employ any
unprohibited mean for executing the grant in
a manner consistent wUh the object for which
the power was delegated. "Necessary," with
out qualification, does not mean that which is
indispensable. As it is not a technical term,
it must be construed according to the popular
use and import of it. Its ordinary adjeetive

DELIVERED BEFORE THE LAW CLASS.

247

acceptation is synonimous with a mean effect
uating or tendingto effectuate an end. When
a certain end is to be accomplished by means,
oome effectual or appropriate mean to the end
is, of course, necessary. Por effecting most
ends of the express powers in the constitution,
the efficient means are various and multiform;
no one of which, more than another, can be
deemed indispensable. Which should be pre
ferred, as best adapted to the end, is a ques
tion concerning whicb equally enlightened
minds may differ; and, consequently, sound
discretion will make the selection. Thosewho
do not concur in that choice, have no right to
say thatthe act is unconstitutional, merely
because, in their opinion, or according to their
taste, some other mean would have been more
appropriate or expedient. The degree of rela
tive adaptation is a matter of policy, not of
power. Any mean that relates to the end of
any one of the enumerated powers, is as con
stitutional as auy other mean to the same end,
if it be not prohibited. Of all. such means no
one can be deemed more nepessary than an
other. The constitutionality or unconstitu
tionality of any one of them, cannot depend
upon the uncertain and controverted opinion
of its optimism, which involves the question of
expediency, not of power. But, among all.
the various unprohibited means which relate to
the end of an express power, the majority have
a right .to choose that which it deiSms best
adapted to the fulfilment of the purpose of
delegating that power. The power to do a
thing, does not depend on the policy or expe
diency of the thing. A particular species of
legislation by Cong^-ess, might operate very
beneficently on the general welfare. Yet, un
less there is either an express power to. do it
or it has relation to some such power and will
tend to effectuate the end bf it, the constitu
tion would not sanction it. Por example, it
might be useful to have one uniform national-
law regulating the obligation of contracts,- or
the transfer of title toland by inheritance, con
veyance or devise. But all these matters are
local: and, as none of them, as means, relate to
the end of any of the enumerated powers giv
en to Congress, every such act would be uncon
stitutional and void. So, on the other hand,
the impolicy of an act does not prove that itis
uncoustitutional. A subtreasury may not be
the most suitable or politic mode of executing
the express power of taking eare of and trans
mitting the national treasure; it may, thef efore,
be inexpedient or impoUtic. Nevertheless, it
may be clearly constitutional, because, as a
mean having an obvious relation to the end of
an express power, it may execute tiie trust, tho'
uot perhaps in the best possible manner. This
is equally true, even as to the express powers.
Congi-ess might happen to declare an unjust
or impolitic war. The' express power to de
claie war is limited only by the discretion of
Congress. War is one mode of effecting na
tional security and justice, — other modes may
happen to be more expedient for attaining the
same object, — in such a case war would be in
expedient. But still it would be undoubtedly

constitutional. So, for fulfilling the end of the
express power, "to establish post offices and
post roads," it might be more expedient and
economical to have the mails carried at the e.v-
penseof the General Government, by its offi
cial agents, for compensation fixed by law. —
But this would notsho-n- thatthe more expen
sive and irregular mode of having it trans
ported by contract, as a jdb,, is unconstitu-
tion.al. The same distinction between e-xpodiency
and power applies, with equal clearness and
force, tu the class of resulting, or. implied
powers. The express power to regulate for
eign commerce, carries witii it the incidental
power to improve our bays and harbors, and
erect light-houses, to give facility and securi
ty to commercial navigation and intercourse.
No such improvement is indispensably neces
saiy; but every one that has ever been made
may be useful, has relation to an express pow
er, and tend.- to subserve its great objects.
There are various modes which might all tend
to the same result, — each of them is within the
constitutional discretion of Congress, and
each, therefore, though it may not be the bestj
is constitutional. A breakwater, costing mil-.
lions of dollars, may turn out to be compara
tively useless for the protective purpose for
which it shall have been constructed — and
might not be expedient therefore — but, as it
relates to the power to regulate commerce, and
was made to promote it, the implied power to
make itis nnqnestionablc, even though it was
neither indispensably necessary, nor even ex
pedient. If there be no implied power to do anything
in the execution of an express power, without
doing which the object of the express power
could not be fulfilled, (hen there can be no such
thing as implied power; for if any of the vari
ous means for effecting the same end be not
constitutional, because the end could be accom-:
plished in some other mode, no one of the
adaptable means cari be constitutional, be
cause no one of thera can be indispensable,
while there is another which can serve the
same purpose. The expedients for executing
the trust of an express power, maybe as vari
ous as the letters of the alphabet. If the plan
of A be not constitutional, merely because B's
-will effect the same object, and therefore A's is
not indispensable; then, for the same reason,
neither B's nor that of any oUier, can be con
stitutional. And, consequeutly, there could
be no incidental power in any case except the
non-existent and unimaginable one, in which
.there is but; one piean for effecting the end of
an express grant of power. Adaptation of un
prohibited means to ends of express powers,
is the true and only test for determining wheth
er an act not expressly authorized is necessary
for effectuating one oi'the enumerated powers.
The comparative degree of adaptation affects
the policy only. And this is not only
self-evident, but has been illustrated by
the history of Congressional legislation ever
since the inauguration of the Pederal Consti-

246

INTROPUCTGRY LECTURE,

tution; and confirmed by universal acquies
cence and authority.
Before there can be implied "power to do a
thing, it must not only be in the constitution
al sense "necessarj/," but also'^proper;" which
means, not that it shall be expedient, but ap
propriate merely, or in other words, suitable to
the end, and not repugnant to the principles of
the constitution; for that which is prohibited
by the letter, or is incompatible with the spirit
of the constitution, cannot be "proper." And
this, too, is well settled by history and author
ity, popular, legislative, and judicial.
The test thus defined for determining the ex
istence and limits of implied Jiower, cannot be
objected to as either too vague or too latitudi-
nai-y. One more certain or properly restricted
could not be substituted. He who discards it',
is at sea without compass or rudder. He can
have no criterion of construction, but an arbi
trary and varying discretion^ governed only by
his passions, or his changing opinions of ex
pediency; and will sometimes assume powers
that do not exist, and at other times repudiate
thosethat do. In his hands the constitution
will be a Protean puppet oi yiarty or of titnes;
andthat which, until authoritatively changed,
must be, under all circumstances, one and the
same, will lose its uniformity and identity,
and change with policy, interest, or the ther
mometer of popular feeling. The history of
the Bank of the United States affords an appo
site illustration. Men and parties have often
changed concerning the constitutionality of
such a Fiscal Institution. Even Mr. Madison
and Mr. Clay denounced it as unconstitutional
in 1811, and advocated it as constitutional in
181C. Each of them had applied to it the va
rying and delusive test of expediency. They
thought it impolitic in 1811, politic iu 1816.
It would have been perfectly consistent, there
fore, for each of them to have opposed the char
ter at the first of these periods, and to have
been for it at the last. But, if it had been un
constitutional at any time,'it could never have
become constitutional without a change of the
coustitution. Until some such change of it, all
its powers, express and implied, must be pre
cisely the same at all times and under all cir
cumstances. Time and circumstance may,
and often do, change the policy of exercising
certain powers, or of doing it in the same
mode; but they can never give power not
granted by the constitution, nor either abro
gate or change that which was once conferred
by it. The test we have defined as the true
one will preserve the consistency and uniform
ity ofthe constitution — any other will make it
clay iu the hands ofthe Potter.
The stability and efficacy of the Constitutiou
require that it should be uniform in its char
acter and operation; and, consequently, it
should be always construed by a fixed test as
certain as the magnet. For want of such a
test, or because it ¦was neither carefully nor
uniformly applied, the constitution has been
made to assume difterent and inconsistent
characters at different times, and uuder the
controlling iufluence. not only of different men

aud parties, but of the same men and the '
same parties, at different, times and on differ
ent occasions. This is a deplorable truth; and
persistence in a procedure so fluctuating and
liable to abuse,.will afford an iiugury of disso
lution and anarchy, or of despotism and cen
tralism, at no very distant day. It would,
sooner or later, inevitably unhinge the consti
tution, and make it the sport of ambition, lo
cal or national. The true test, honestly and
faithfully applied, would restore the constitu
tion to its oiTginal purity, simplicity, harm-
lessuess, and benificence, And then we should
have no more nullifying, States, or mis-styled
"States- rights" parties, — ^ino more "strict con
struction," or "latitudinary construction," — no
more vibrations from centralization to dissolu
tion, from a National Government of the peo
ple, to a confederation of State sovereignties
claiming constitutional supremacy. But har
mony and security ¦would pervade a union ho-
mogenious and steadfast in fundamental poli
tics. The self-styled "strict constitutiouist,"
and the falsely styled "States-rights" politi
cians, rnould the constitution to suit the occa
sion and their immediate purpose. Sometimes
excessive power is conceded to a patronizing
party President, and, at other times, almost all
power is denied to an incumbent of a different
cast^-and sometimes is (denied to Congress
any implied power which is jiot indispensa
bly necessary, and at other times, power is
claimed to do whatever is desired, or deemed
beneficial or expedient. "Strict construction''
is itself yex.itiously indeterminate and flexible.
It has no settled land mark; nor is it govej-ned
by any fixed priuciple of uniform and certain
application. If its principle be, that no po'w
er belongs to the General Government, except
what has been cxpresslygranted, it is radical
ly absurd, and is falsified by the express de
claration of the constitution itself, and by un
varied legislative action and judicial sanction,
ever since the adoption of it. If its principle
be, that there is no implied power which is not
indispensably necessary for fulfilling tho ob
ject of some express power, it is equaUy ab
surd, has been exploded by the same authori
ties, aud, if let alone, would result in suicide.
And, if its principle be, that there is no im
plied power, except that which operates as a
mean lo the end of some express power, then
the strictconstructionist concurs in theory with
the most orthodox class of American jurists and
statesmen. But "plain," "clear," "obvious" —
all have degrees; and what may he quite obvi
ous to one mind, may be altogether invisible to
another. This, therefore, is too vag-ue and va
riable for constitutional cert-iinty — and needs
tho polarity of some principle more fixed and
infallible, — aud that is the one we have al
ready defined as tho only true and safe guide;
and which has hitherto been recognized by all
the public authorities of the Union.
There is, therefore, nothing consistent, or
maintainable, in , tho distinctive appellative,
"strict constructionist." And there is just as
little in that of "States-Rights" party or doc
trine which, not only urges the same vagary

DELIVERED BEFORE THE LA'W CLASS.

249

of ''strict construction," but goes to the dcs-
tructiye extremity of claimijii;' for each State
of the Union political suprcmiicy, and of de
nying to the authorities aud laws of tiiat Union
ultimate and practical sovereignty. This funda
mental heresy, which had been considered as
long dead or banished, was revived under the
auspices of John C. Calhoun, during the ad
ministration of President Jackson, whose iiji-
mortal proclamatiou in 183:1, denoimcod it as
treason. Its. only basis is the monstrous as
sumption that the Federal Constitutioii -was
made by the States lu their political capacities,
and not by the people iu the same capacities in
which they made their respective State Con
stitutions — that, though it declares itself to be
the supremo law of the land, and although the
people, who made it, established by it a tribu
nal for deciding, in the last resort, on its con
struction and appUcation, yet, nevertheless, it
is a mere league, like the superceded .irticles
of Confedcratiou,' bet^yeen sovereign States,
each of ¦which has a constitutional right to dis
sent from the national (authorities, to decide
for itself, and to "nullify" -srithin its borders,
any act which it may choose to consider un
constitutional. The pivot of, this nullifying
platform is the radical error that each of the
States in the Union still retains, in the ulti
mate sense, under the Federal .Constitution,
uncontrollable sovereignty — or, in other words,
that, the coustitution is amere confederation,
aud is not an organic law intended to operate,
and ivith power, to enforce its operation on
every citizen of every State, as a national and
supreme law of all and for all — "any provision
inany State law, or State Constitution to the
contrary, notwithstanding." If this be the
true theory of the Constitution, each State
being, on that hypothesis, an independent soy.
ereiguty, each must,- as an essential element of
all such sovereignty ^possess the acknowledged
right to decide for itself as to its oavu power,
and, consequently, as to the valicyty of all
acts passed by Congress, and abo as to the
correctness and efi'ects of all thc decisions
rendered by the j.udicial organ of tho Union,
the Supreme Court of the United States; and,
as a necessary consequence, each State vfould
also possess the constitutional right to secede,
whenever it ¦, might choose to abandon the
Union. But, if the people of each Slate, in
their own ' original right, arc parties to the
Constitution of the 'United States, and by it
organized' a National Goyeiiiment, supreme
over all for all national purposes, then it is
equally true and undeniable |tha,t the compre
hensive' General Government thus constituted,
must be the highest sovereign, aud possess, as
an obvious and iuevita'ble consequence, 'the
authority to decide as to its oavu sovereignty,
and the political powe'r to uphqld that sov
ereignty, and enforce its own acts and its own
decisions; and, ci3nsequen|ly, no citizen, nor
any class or number of citizens, whether of one
State or of different States,'can constitutionally
82

exorcise a right to overrule, or resist, by force,
tiie acts of the General Government, ratified
and confirmed by the people of the United
States through their judiciary. The rightto
decide as to its own constitutional power is an
inherent and indispensable attribute of all
national sovereignty.
The provisions of the Constitution of the
United States — and its style^and 11,=! declara
tions — and its ol;)jects — and its history, and
invariable exposition, and operation, ever
since the adoption of it prOve, beyond contro
versy' or doubt, that it' derived its existence
and authority from the people who made or
became parties to' it, just as they made or be-
carAe parties to their several State constitu
tions — that, iu purpose and effect, it constitu
ted a supreme National Government for all the
people, and above all tho States — that it is a
fundamental law, and like all organic law',
cannot be rightfully resisted or overruled by
any party to it as long as it shall continue to
exist; and that, consequeutly, it has, and must
have, the political right and power to maintain
its own existence and enforce its own authority.
A single State cannot be practically a sover
eign for local purposes, if any portion of its
citizens have the consitiiSonal right to overrule
or resist its organized power or judicial au
thority. Nor, for the same reason, and ' fully
in the same sense, can the United States be
practically sovereign for national purposes,
unless the General Government has th^ right
to determine all cjuestions involving its own
sovereignty, and the power to -uphold it.
"When the constitution war, under considera
tion for adoption, a minority advocated a
league or confederation — the majority, with
WASHING-TON at their head, feeling the
absolute necessity of a supreme National Goy
ernment with po^v^ers co-extensive with the in
terests and purposes of Union, prevailed and
established such a Government. Mr. Jeffer
son w-as one of that minority, and, for years
after the ratification of the constitution by the
people ofthe States, 'endeavored to construe it
as a comjpact of confederation among sov
ereigns. Being looked to as their leader, by
the ¦ party opposed to President John Adams,
and denouncing, as unconstitutional the alien
and sedition law's just then enacted by Con
gress, Mr. Jefferson wrote and sent to John
Breckinridge the resolutions of "98," ¦ivhich
were adopted by the Kentucky Legislature.
The first of these' reiiolutions, after characteri
zing our charter of Union as a "compact under
the style and titie of a Constitution of thc
United States," proceeds tb declare "'that, to
this compact each State, acceded as a State,
and as an integral party; its co- States forming,
as to itself, the other pai-ty; that the Govern
ment created by this compact was not made
the exclusive or final judge of the extent of
the jiowers delegated to itself; since that
would have made its discretion, and not the
cOnstitiition, the measure of its powers; but

250

mTRODUCTORT LBOTURB,

that, as in all other cases of compact between
parties having no common' judge, caeh partj'
have an equal right to judge for itself, as well
of infractions as of the mode ahd measures of
redress." And by the second of these resolutions it
\vas resolved — "That the constitution of the
United States having delegated to Congress a
power to punish treason, counterfeiting the se
curities andVurrent coin of thc United States,
piracies and felonies committed on the high
seas, and offences against thc laws of nations,
and no other criines whatever, iind it being true,
as a general principle, and oue of the amend
ments to the constitution having also declared
"that the powers uot delegated tothe U. States
by the constitution, nor proliibited by it to the
States, are reserved to the States respectively,
or the people;" therefore, also, the same act of
Congress passed on the 14th of July, 1798,
and entitled "an act in addition to the act en
titled an act for the punishment of certain
crimes against thc United States;" as also the
act passed by them on thc 27th of June, 1798,
entitled "an act to punish frauds committed on
the Bank of the United States;'' and ' all other
of tiieii^ acts which assiune to create, define, or
punish crimes other than those enumerated in
tho Constitution, are altogether void, and of
no force, and, that the power to create, define,
and punish other crimes, is reserved, and of
right appertains, solely and exclusively, to thc
respective States, each lyithin its Own terri-
torj'." These resolutions of '98 iverc transmitted to
other States for their concurrence; but most of
those State repudiated them as radically wrong.
Mr. Jefferson, in that dilemna, wrote the reso
lutions of '99, endorsing those of '98, and pre
scribing a specific mode of enforcing, by a mal
content State, its imputed sovereignty, in these
words: "The principle and construction con
tended for by sundry of the State Legislatures,
that the General Government is the exclusive
Judge of the extent of the powers delegated
to it, stop nothing short of despotism, since
the discretion of those who administer the goy
ernment, and not the constitution, woulii be
the measure of their powers — that the several
States who formed that i-nstrument, being sov
ereign and independent, have the unquestion
able right to judge of its infraction, and that a
NULLIFICATION, by those sovereignties, of
all unauthorized acts done under color of that
instrument, is the rightful remedy."
The principle of the first of thc resolutions
of '98 is, that the States of the Union retain
all their original sovereignty^that the consti
tution of the United States is only a compact
or league betweeii them as sovereigns — that
there is no common judge over them — and
that, consequently, each State has a constitu
tional right to judge for itself, iu the last re
sort, of the validity of all the acts of the Gen
eral Government. This must now be admitted

to be a palpable error — a total misconception
ofthe provisions, tiie objects, and the suprem
acy of that constitutiou. But the same false
principle is the pivot and only support of the
exploded doctrine of nullification; .ind Mr.
Calhoun so understood; his platform was that
of the resolutions of '98, and he relied ori them
as his authority. The resolutions of '99 re-
aflSi-m those of '98, and the author of both
points out in thc latter the remedy, for tiie
right as.?erted in the first, of a single State to
judge for itself, and prevent, within its Umits,
thc enforcement of an act of Congress which a
majority of its citizens should deem authorized
by the constitution. And in announcing that
remedy, "ndllific.vtion" is, for the first time,
¦ased. From this source, Mr. Calhoun borrowed
thc principle and the term. There can be no
other rational construction of the resolutions of
'98, than that given to them by Mr. Calhoun
and hy their author. If their principle be true,
a right to nullify, as asserted in the resolutions
of '99, must bo admitted to be undeniable —
aud tliat it is a eonstitutional right, according
to that principle, could not be doubted. If
that principle be true, there is no General
Government or national institution -with au
thority to govern — there is no national consti
tution; for a constitution is a supreme law, and
a. law cannot be supreme, -ivhich the enacting
authority has neither right norpower to enforce
against all popular opposition. The sugges
tion in the first of the resolutions of ^'98, that
thc exclusive or final right in the General
Goyernment to judge of its own powers and
the constitutionality of its own acts, would
make its discretion, and not the constitution,
the measure of its authority, is, with all proper
respect, -lyorse than puerile — it is suicidal.
There can be no supremacy of law or goyern
ment Avithout sucli a right. In a contest be
tween a State aud any portion of its o-wii citi
zens as to the constitutionality of any of its
legislative acts, has not the State, through its
judiciary, the undoubted, exclusive, and final
political right to decide? No govei-nnient
conld exist Avithout that right — it "is the ulti
mate object of all constitutional government.
The coustitution declares tiiat it shall he the
supremo laAv over all thc States and all the
people; and it organizes a national court for all
the States and all the people, as the final ar
biter of all contests eoucerning that constitu
tion, and vests it Avith final and conclusive
jurisdictiou of all such questions. In adopting
thc constitution, the people of all the States
agreed that their oAvn national supreme court
— .ippointed by their agents, acting in their
n.ime and for them, and responsible to them—
should, in all cases invoh-ing the poAvers of
the General Govemment, constitute tiie final
arbiter of the constitution and the laAv. With
out some such fundamental provision for ad
justing all collisions of poAvcr or questions of
constitutional right, national unifbrraity, and

DELIVERED BBFORE THE LAW CLASS.

251

union, could not be maintained. And if men
-wjll call the coustitutiou "a compact," still this
provision is a cardinal part of it, and Avas adopt
ed to prevent nulUficatiou-
The great object of the Pederal Convention
of 1787, Avas, ns already intimated, to trans
form the confederation into n National Gov
ernment vested Avitli supreme national poAvcrs,
co-extensive Avitli national interests, and so
organized as to be able to enforce its authority,
and maintain the supremacy and uuiformity of
its constitution throughout the l.Tnion.
Mr. Madison, one of thc chief architects of
that temple of liberty, after alluding to the
fact that, Avhile local poAver Avas left Avitli the
States, all national pOAver had been transferred
to the General Goyernment, said: "Nor is the
Government of the United States created by
the constitution, less a Goyernment in thc strict
sense of the term, Ayitliin tiie sphere of its poAV-
ers, than thc goyernments created by the con
stitution of thc States are Avithin their scAcral
spheres. It is, like them, organized into Leg
islative, ExecutiAc and Judiciary departments.
It operates, like them, directly on persons and
things. And, like them, it has al command, a
physical force for executing- the poAVcrs com
mitted to it."
"Between these dift'erent constitutional gov-
eminents, the one operating in all (he Slates,
the others operating separately in each, Avith
the aggregate poAvcrs of government divided
between them, it could not escape attention
that controversies Avould arise concerning tiie
boundaries of jurisdiction, and that some pro
vision ought to be made for such occurrences.
A political system that does lUJt provide for a
peaceable aud autiioritative termination of oc
curring controversies, Avoiild not be more than
the shadoAv of a government — the object and
end of real government being the substitution
of law and order, for uncertainty, confusion,
and violence. That to have left a final decis
ion, in such cases, to each of the States, could
not fViil to m.ikc the constitution and Uvavs of
the United States different in different States,
was obvious; and not less obvious that this
diversity of independent decisions must alto-
^rether distract the go-v-ernment of the Union,
and speedily put an cud to the Union itself.
A uniform authority of the laAvs is itself a ai-
T.vi. principle. Some of the most important
laAvs could not be partially executed. They
must be executed in all the States, or they
could be duly executed in- none. An impost
or an excise, for example, if not in force in
some States, AVOuld be defeated in others. It
is Avell knoAvii that this Avas among the lessons
of experience Avhich had a primai-j' iiifliieuce
in bringing about tiie existing constitution."
"The constitution, for its safe and succcks-
ful operation, lias expressly declared, on tiie
one hand,
Ist. "That thc constitution and the laAVS
made in pursuance tiicrcof, and all treaties

made under the authority of the United States,
shall he the 'supreme laAV of the land."
2nd. "That the Judges of every State shall
be bound thereby, any thing in the constitution
or laws of any State, to the contrary, not
Avithstanding." 3d. That the judicial poAver of the United
States shall extend to ,all cases in laA\' and
equity arising under the constitution, the laAvs
of thc Uuited States, and treaties made under
tlieir authority, &c."
"On the other hand, as a security of the
rights and poAvers of the States in their indi
vidual ciipacitios, against an undue preponder
ance of tlie poAvers granted to the govemment
over them in their united capacity, the consti
tution has relied, on
1st. "The responsibility ofthe Senators and
Representatives in the Legislature of the
United States to the Legislatures and people
ofthe United States."
2nd. "The responsibiUty ofthe President to
tiie people of the United States."
;jrd. "The liability of the Executive and
Judicial functionaries of thc United States, to
impeachment bv- the Representatives of thc
people of the States, in one branch of the
Legislature ofthe States, and trial by the Re- >
prcsontatives of the States in the other branch
— the State functionaries. Legislative, Execu-
ti,ye, and .Judicial, being, at the same time, iu
their appointment and responsibility, altogeth
er independent of the agency or authority of
thc United States."
"Those Avho have deuied or doubted the .su
premacy of tiie Judicial poAver of the United
States, "and denounce at thc same time, a nul-
lifyiuj,' poAver in a State, seem not to have suf
ficiently adverted to the utter inefficiency of a
supremacy iu a laAv of the land, without a su
premacy in the exposition and execution of thc
law — uiir to the destruction of all equipoise
betAveeu the Federal Government and the
State Goverements, if, Avhilst the functionaries
of tiic Federal Government arc, directly or in
directly, elected by, and responsible to the
States,' and the functionapes ofthe States are,
in their appointment and responsibility, wholly
independent of the United States, no coustitu
tional control of any sort belonged to the
United States over the States. Under such
an organization, it is evident that it Avould he
in the poAvcr of the States individually, to pass
unautliori-;!ed laAvs, and to carry them into
complete eft'ect, anything in the constitutiou
and laAvs of the Unftert States, to the contra
ry, iiotwitiLStaiiding. This avouUI be a n,ulli-
fyiug poA\-cr iu its plenary character; aud
Avhetiiei- it had its final effect through the
Legislative, Executive, or Judiciary organ of
a State, AVOUlil be equally fatal to the consti
tuted relations between thetwo governments.'
In tiie 39th iiiimherof "Publius," ou the au
thority of Avhosc expositions the constitution
of the United States was ratified by the poo-
¦ple of several States, may be seen thc following

252

INTRODUCTORY LECTURE,

stereotyped confii-mation of the foregoing vieAvs
of Mr. Madison: "It istrue that, in controver
sies relating to the boundary between the tAvo
jurisdictions, the tribunal Avhich is ultimately
to decide, is to be estabUshed under the general
govemment. But this does not change the
principle of the case. Tho decision is to be
impartially made according to the rules of
the coustitution; and all the usual and most
effectual precautions are taken to secure this
impartiality. Some such tribunal is clearly
essential to prevent an appeal to the sAVord and
a dissolution of tlie compact; and that it ought
to be estabUshed uuder the general rather than
under the local governments — or, to speak more
properly, that it could be safely established
under the first alone, is a position not likely to
be combatted."
That any act of Congress unauthorized by
the constitution of the United States is void', no
sound jurist can deny or doubt. But Avho is to
decide Avhether the act bo unconstitutional or
not? Each citizen for himself? Then Ave
have no govemment, or he is above it. The
same ansAver, on precisely the same principle,
is equally true and effectual, aa'Iicu any number
of citizens, in either their indiAndnal, social, or
political capacities, claim the right of final and
authoritatiA'e decision for themselves.
Then it is not ti-ue, that the States, in their
sovereign political capacity alone, made the
constitution of the United States, and arc thc
only parties to it — it is not' true that, under
that constitution, they retain independent and
plenary sovereignty — it is not true that, for de
ciding bctAvcen them and the general gOA'crn-
ment, or any portion of the people and thc goy
ernment, there is "no common judge" prOA-ided
by themselA'cs iu their charter of Uniun — it is
indisputably not true, therefore, that "each
party has a right to judge for itself as to infrac
tions, as Avell a,s the mode of redress." And,
conscquentiy, tho first of thc resolutions of '98,
the only foothold of nullification, or of seces
sion, evaporates into detonating and pestilent
gas. Thc radical error of that resolution —
Avhichis the only vital principle of nullification
— Avas exposed 'and denounced h}- the famous
proclamation of President Jackson, in 1832, in
AA'hich, after arguing against itAvith irresistahle
force, he 6oncludcd as foUoAvs; "I consider
then the poAver to annul a law of thc United
States assumed by one State, incompatible
Avith the existence of thc union, contradicted
expressly by the letter of the constitution,
unauthorized by its spirit, inconsistent Aiith
every principle on Avhicli it AAas founded, ami
destructive of the great object for Avhich it Avas
made.'* And all tips is manifestly true.
The second of the resolutions of '98 is,
even more palpably, indefcn,sible than Ihe
first. It proceeds on the, njonstrous assump
tion that Congress possesses no more or other
power lliau that which is expressly d'jlegated ;.
for it asserts, in effect, that Congress cannot
creatis an offence, or prescribe punisliment for

auy crime not specified in 'the powers enu
merated in the constitution— and it concludes,
therefore, that, as the counterfeiting of tlje
notes or securities of the Bank of the United
States, is an offence created only by act of
Congress, Avithout express and specific pow
er, that act- was unco'nstitutional and void;
and on that assumption,, the resolution asserts
that each of the States had the reserved and
exclusive power to make such counterfeiting a
crime or not, and to prevent it or not. This
ultra doctrine has been, for more than half a
century, universally abandoned as absurd^ in
consistent and destructive, until within the
present year, when the resolutions of '98 were
incorporated in a party platform, as an article
of the creed of "pr'ogressive democracy."
If punishment be necessary for thc fulfilment
of any trust devolved on Congress, has not
that department constitutional power to de
fine the offence, and to provide for the infiic-
tiopofthe punishment, except so far only as
that rssulting power may have been denied
or limited by the express provisions of the
constitution? One illustration may be suffi
cient for all the cases. Congress has express
"poAver to establish post offices and post
roads," which Avas intended to mean plenary
and exclusive poAver over the transportation of
the mail. Por effectuating that power, and
fulfilling that trust. Congress has made the
obstruction aud robbing of the mail criminal
offences, and denounced punishment for each
offence. Is that unconstitutional? It cer
tainly would bo, if the second of the resolu
tions of '98 contains sound constitutional
doctrine. But that legislation, though not
expressly authorized, has ever been held aud
considered undoubtedly constitutional and
binding. '^Virhout the right thus to protect
and facilitate the transmission of intelligence
and of money by the mails, Congress might not '
b.e able effectually to execute the high trust de
volved on it by the constitution ; and it would
be inconsistent Ayifh the purpose of that trust,
to leave the mails dependent on State power or
discretion. Such legislation only employs
usual, appropriate, and unprohibited means
for effecting the ends of the n.i'.ional and ex
press poAvcr over the mails — that is, celerity,
security, punctuality, and uniformity. Those
two resolutions of '!)S are Avholly inconsistent
with the throrelic nationality and practical
supremacy of the constitution — and essential
ly irreconcilable Avith the admitted existence
and necessary power of a govermncnt ofthe
Union, in the only true and efl'ectual sense,
either national or federal. Tho practical ap
plication of the principle of the first, would
resolve the Unileil States inlo the anarchy of a
mere confederation of absolute and indepen
dent state soA'ercignties, each acting, in all
c.isps, according to its arbilraiy Avill; and thc
principle of the second Avould AA'ithhold from
the general government (if conceded to be
such theoretically) all implied powers, or all
right to employ means for executing the ex
press and I'lUimerated powers. It is evident,
therefore, that, if any party in power should

DELIVERED BEFORE THE LAW CLASS.

S53

uphold those destructive principles, and car
ry them out in practice, the late compromise
laAvs must fail, the fugitive slave law nuistte-
coiiie a mockery, the hydra of nullificati.on
and secession AviU bo installed as a political
divinity, and the Union itself must inevitably'
.\nd speedily fall inlo imbecility, distraction,'
and hopeless ruiu.
But each of those heresies is, avi^ trust, as
unacceptable fo the intelligence und patri
otism ofthe freemen of the United States, as
thev are absurd and licentious,
I'he, powers of the government of the Uuited
States are altogetiier national — embracing exr
elusive control over all the concerns of peace
and war, intercouse, right, and obligation, as
between our L'nioiiasa nation aud fqreign na
tions, and iucluding also all domestic inter
ests in which the people of the States, or of
more States than one, ape coucerned-^the
States retaining all powers exclusively local,
or affecting the internal .economy of each
State "separately and aloue. No such local
power has been delegated to the government
ofthe United States, nor is any such national
power retained by the States as separate gov
ernments. This theory is as philosophical aS'
it is pimple and beautiful — and it is the only
one consistent willi the preservation of the
Union, in peace and harmony, or with the
Declaration of Independence, or the Ameri
can notion of the representative principle. So
far as the interests of the people of different
States may be affected by legislation, tlie le
gislative power ought to belong to the com
mon counsels of all concerned. No on» State
ought to possess, or desire to exercise con
trol over the affairs or the rights of the people
of other States — and neither equal justice, nor
political union could be secured, unless the
aggregate wiU of the people of the United
States, .should be the regulator and guardian
of their, common rights, as- one nation for all
common purposes, And in harmony, with
this theory, an analysis of the national con
stitution will shoAV that all poAvers.necessary.
for tAie union and nationality of tlie people of
tho United States it delegates to the general
government, .and reserves to each Slate all
power exclusively local — each being a sover
eign within its prescribed sphere, the gov
ernment of the Union possessing, in all cases
of conflicting claims to power, tho ultimate
supremacy as declared by the copsiitution of
the United States; and without Avhich authori
ty it' could not be a sovereign, armed Avith
po-wer to effectuate the great object of its insti
tution. And, though it possesses no power
except what is delegated by its constitution,
yet, as it has the inherent, as Avell as declared,
rightto employ all the nieans "necessary and
proper," for fulfilling the ends of its express
poAvers, incidental or impliedpoAv ers, co-exten
sive with those means, are <is much delegated
as the enumerated and specific powers them
selves. Some of the constitutional powers of the
general goyernment ai c exclusive — others con
current. All its foreign powers are exclusive.

Among the domestic powers those are exclu
sive — 1st. Avhich are given in exclusive terms —
as the express poAver to exercise, "exclusive
legislation" over the District of Columbia, and
over , territory purchased for forts, arsenalb;,
<tc. 2ud. Which, though given in goncrai
terms, are expressly prohibited to the States —
as the-unqualified poAverto regulate commerce,
a^nd the express interdiction against the laying
ofany duty on exports or imporls by a, State,
except for inspection purposes. 3rd. "Which,
though neither gi^en in e;xclusiyc terms, nor
expressly prohibited to the States, eould not
be concurrentiy exercised by a State AvithouL
impairing or frustrating the object of delega
ting itto the generfil government — as the power
",to establish a uniform rule of naturalization,"
the citizens nf each State being entitled, by an
express provision of the. Constitution, lo the
privileges and iminunities of citizens in the
several States, aud the great object of confer
ring on Congress a, poAver so caseiitially na
tional being allogether imconipatible v.'ith the
power of local legislation over it. All domes
tic powers Avhich are delegated to Congress, un
affected by either of those three tests, are con
structively reserved to the States concurrently
•with the general government.
But, as a law constitutionally enacted by
Congress is, by the Constitution itself, declared
tobe "the supremo law of the land," conse
quently, whenever Congress shall have passed
a law odi a subject of concurrent legislative
authority, any incoiiti.stent law of a State
then existing on the same subject, Avill be
constructively abrogated, and no State can
enact any law on that subject, as long as that
of Congress shall remain iu force This may
be illustrated by the power expressly given
to Congress til establish "uniform laws on the
subject of bankruptcies throughout Ihe United
States" — which has beeu construijd to be a, con
current power, given lo Congress for no other
purpose than that of the advantage of having,
on that subject, one uniform national law
whenever Congress shall deem it prudent and
beneficial. In refereuco to that poAver, the ju
dicial and practical construction has been,
that, until Congress has passed a general
bankrupt law, each State, has a right to enact
special laAvs for itself on the kubject of insol
vency and bankruptcy;, that a general laAv
enacted by Congress, abolished all existing
State laws on the Same siibjrct — and that,
when such Congressional fiiaclment expired,
or Avas repealed, the right of each Slate loleg-
,iiilateon the subject Avas revived. And this is
true of all poAver concurrently possessed by
the States and bythe general fjovernnvjnt. ,
Tiie modes of iiilcrpretingthe pnwersof the
general governmeuU're vaiiuus and contrarient
—different processes leading lo essentially
differeut results. And on that subject, poli
ticians, as aclass, differ Avidely from jurists as
a cla«.s. The Coijstitulion ofthe United States
should, like that' uf a Stale, be copstrued in
such a manner asAviU be most likely id fulfill
the intentions of those Avho made it. And the
proper mode of attaining that end, is to cou-

254

INTRODUCTORY LECTURE,

aider, in a liberal temper of candor and patri
otism, the letter, the spirit, the context; and, if
any difficulty or doubt shall still exist, to ex^
plore the objects, and history of its adoption,
and the analogies of judicial and practical
expositions of it. Ic should never be strin
gently con'5trued like a penal statute, but al-.
ways more liberally, as the charter of a great
p^ublic trust for the welfare of thepeople, and
for the maintenance of the harmony and jus
tice of the Union; iind afe the best safeguard,
therefore, of liberty, peace, and security.
And, as for those objects, certain great powers
-Avere wisely surrendered by the several States,
and, for the better and more unifdriU fulfill
ment of their ends, confided tothe more pater
nal government of the Union, representing all,
and accountable to aU concerned in the faith
ful administration of its high trusts — and, as
the people of the States are altogether depend
ent on their common government, for the exer
cise of those powers, and the beneficial ful-|
fiUment of those trusts, such a construction
should be given to the Constitution as to make
all such powers as plenary, efficient, and be
niflcent as the public good may seem to re
quire. Such has been the habitual and more
authoritative construction. The power "to
establish post offices and post roads," might
be litferally interjDreted to mean nothing more
than to designate the places for those offices
aud the routes of travel for the mails;, but it
has been invariably construed as authorizing
Congress exclusively and imposing on it the
sole duty, to regulate and control the entire
postal transmission of intelligencethroughout
the Union — and the powers for securing that
great national object, havebeen conceded to be
as comprehensive as the object itself, and as
J^lenary as each State might have possessed
them for itself, within its own limits before it
surrendered and transferred them to the gov
ernment of the United States.
The power "to regulate commerce with for-
eigU nations," lUight be interpreted, by a strict
constructionist, as meaning, according to its
precise literal import, only a power to pre
scribe the rules of commercial intercourse — for
to regulate literally means to prescribe rules.
But the object of delegating that power Was to
deprive the States of all authority over foreign
commerce, and vest in the general govern
ment, as their only international organ, all.
sovereignty over it, excepting only so far as
the delegated poAver may be expressly limited
by the provisions of the Constitution. The
United States, as our only nation, has as much
power over our commerce with foreign na
tions, as any other independent nation on earth
can have over its oavU commerce, with the ex
ception only of the restrictious expressed iu
the Constitutiou as to equality and uniformi
ty among the Stales. England, like other ab
solute sovereignties, has unquestioned power
to close her ports against the world, or to ad
mit importations on her owoi tertas — and the
power consequently to protect and encourage
her own industry and productions, against
foreign rivalry, by the imposition of discrimi

nating, or even prohibitory duties on the im
portation of foreign fabrics, or commodities.
Have not the United States the same po^wer?
In their commercial'intercourse with England
have they not equal rights? May' they not
retaliate legislation against legislation? And
is there a rational doubt that they may impose,
to auy extent, duties on English products, or
manufactures, for the purfSose of developing
their own latent resources, promoting domes
tic, industry, and securing wealth and inde
pendence at home? The people of the States
have no such power. Was itnuUified or crip
pled by the adoption of the Constitution of
the United States? Certainly not; but it was
all only transferi'ed to the general gpvernment.
This is not only self-evident, but illustrated
by non-intercourse and embargo laws, and
laAvs for the avowed purpose of promoting our
own manufactures, by the imposition of du
ties on foreign articles of the same kind, and
laws also for protecting our own agriculture
and commercial marine^^all of which, except
the embargo and non-intercourse, were com
menced the first year of Washington's admin
istration, and continued down through every
succeding administration.
The general power to regulate foreign com
merce has been also always construed as in
cluding power to give facility and security to
that commerce, by erecting light-houses,
making brakewaters, and improving bays,
harbors, Ac, On our maratime frontier. And
the same principle and process extend the cor
relative power, to regulate commerce between
the States, to the improvement of interior lakes
aud rivers. This is just as indisputable as the
other, and nearly as well illustrated by legis
lative history.
These liberal interpretations of express pow
ers, Deyond their literal imports, are justified
by the objects of those powers, and required
by the interests for the protection and ad
vancement of which they were surrendered by
the States and delegated to the nutional gov
ernment; and a more restrictive interpretation
would tend'to the frustation of tiie purposes
for which the pebple of theLTnion established,
and acceded to the Constitution of the Union.
If the powers granted tothe general govem
ment by its organic law were essential — as
they certainly were and ever must be — to the
maintenance of the Union, and the security
and promotion of its objects, it is thehig'hest
political interest, as well as duty, of us all, to
sustain ¦them ia good faith, and never to attempt
to curtail or paralyze any one of them ou any
occasion, or for any temporary, p.artial, or lo
cal purpose.
If, as will not be denied, undivided nation
ality, as between us and foreign nations, be de
sirable, no rational patriot can hesitate to ad
mit that, to that end, a national government,
vested with supreme aud exclusive authority
over all our international interests and rela
tions, must be indispensably necessary. Por
the purpose of consolidating such an union of
the people and the States, the Constitution of
the United States was adopted, and cstab-

DELIVERED BEFORE THE LAW CLASS.

255

lished such a government, delegated to it all
iuch poAvers, and organized it in such aman
ner as to give assui-anco of stability, unity,
and responsibility. And, therefore, all poAV-
er over the international concerns of com
merce, tieaties, peace, and Avar, are delegated
by the Coustitution to the general government
thus constructed. To that extent, or for any
such purpose, the States, as such, possess no
conflicting or antagonistic power; nor could
they, so far, have retained their sovereignty
consistently with the objects of the Constitu
tion. And consequeutly, not only dp aU those
great national powers and trusts belong to the
general government, but, Avith them, are del
egated all the unforbidden means of com
pletely fulfilling the benificent ends forAvhich
they were confided.
Aud, to maintain internal peace, concord,
and justice — each indispensable as an element
of union— it was clearly, not useful merely,
but necessary to delegate to the- government
of that Union, powers over and co-extehsive
with those ends, and protective ofthe common
interests ofthe whole people as one united na
tion. Hence, among the expressly, delegat
ed powers, we find the following: 1st. To
lay and collect taxes, imposts, &c., for th« pur
pose of paying the debts, and providing "for
the common defence and general welfare." 2d.
To regulate commerce not only with foreign
nations, but "among the several States, and
with the Indian tribes." 3d. "To establish
an uniform rule of naturalization, and uni
form laws on the subject of bankmptcies
throughout the United States." 4th, "To
coin money, regulate the value thereof and of
foreign coin, and fix the staudard of weights
and measure" — an uniform national currency,
and a national standard of Aveights and meas
ures, being useful to the internal commerce
and harmony of all portions ofthe Union. 5th.
"To establish post offices and post roads" —
the transmission of intelligence by the mail
being a national affair of common concern to
the people of all the States. 6th. "To pro
vide for calling forth the militia to execute the
laws ofthe Union, suppress insurrections, and
repel invasions" — and to provide for organiz
ing, arming, and "disciplining the militia."
And, to illustratethe same object of depriving
the States of any power, the exercise of which
might frustrate the contemplated purposes of
the Union, and of vesting the government of
the Union with all power necessary to the
preservation of it, we ^nd that the national
constitution guaranties to every citizen of
every State, equal civil "privileges and immu
nities" in each State, and security against
anycJ^iosJ/aciDact, or act impairing the obliga
tion of contracts; and also prohibits each
Srate from laying any duty on exports or im
ports, and from coining money, making treat
ies, emitting bills of credit, or making any
thing but gold and silver a tender in the pay
ment of debts — or keeping any troops or ships
of war in time of peace.
We thus see that, in adopting the Constitu
tion of the United States, the people of each

State su»cndcrcd the essential attributes of
sovereignty, and, by delegating tliom to tiicir
common and only national goyernment, depos
ited them oil the altar of union. And Ave iiiaV
rest assured, that no less a sacrifice of local
poAver and pride could have assured the great
objects of every patriot — national independence,
liberty arid peace-
Wc cannot fail, also, to sec that the asserted
sovereignty of the individual States is altogeth
er irreconcilcablc Avitli the provisions of the
Constitution of all the people of all the States,
and Avould, if acknoAvledged, or usurped, lead
to anarchy, confusion, and civil ivar; to pre
vent all of which calamities, thc Avisdom of our
fathers adopted thc Constitution, and estab
lished the govemment of the United States.
And, as an inevitable consequence, Ave must
all see that secession and nullification are
revolutionary, and not constitutional, remedies
for any local or personal grievance, AA'hether
imaginary or actu.al.
If, in adopting the resolutions of '98, the
Kentucky Legislature ihtendod to assert either
of those ultra-Unconstitutional remedies, our
respect for the memory of that band of patri
otic pioneers, ivould incline us to ascribe the
political error to thc then crude and unsettled
theories as to the fundamental principles of
the Constitution — to veneration approaching
idolatry, AVhich the leading men of our coiU-
monwealth then felt for the opinions of Mr.
Jefferson — to an unlucky sentiment of jealousy
and disaffection towards the general govern
ment, resulting from its imputed neglect in
respect to the navigation of the Mississippi,
and the Indian depradations in the West, and
Avhich, before they had heen entirely healed,
had been greatly inflamed by thc alien and
sedition laAvs — and lastly, to their impatient
anxiety to put down those obnoxious enact
ments. But, it is not improbable, that a ma
jority of the members, Avho A'oted for those res
olutions, did Uot foresee all thc consequences
which might floAv from the assertion that the
States, as such,Avere the parties to the national
constitution — that there AVas no common judge
— and that each party had a right to judge for
itself, as in every other case of compact be
tAveen equals and sovereigns. Nevertheless,
hoAvever all this may be, there can be no
doubt that both secession and nullification, as
constitutional remedies, necessarily result
from the foregoing principles announced in
the first ofthe resolutions of '98.
Nor can there be a rational or consistent
doubt that it was not the natural right of revo
lution, but a political right to nullify, for
Avhichthat resolution insisted. No citizen de
nies or doubts that the people have au inhe
rent and inalienable right to upset their consti
tution, or revolutionize their government —
and therefore, Mr. Jefferson cannot be pre
sumed to have intended to announoo and argue
to prove that uncontroverted privilege. Be
sides, the resolution asserts that each State, as

256

INTRODUCTORY LECTURE,

a co-equal party to tho Constitution, has the
right to decide on the Constitution for itself,
and that t}ie general government bas no such
ultimate right. And, conscquentiy, ho must
have intended to say, as he did undoubtedly say
in effect, that each State had, under the Consti
tution, apd according to the Constitution, tho
asserted rights; and Avhich is nothing more or
less than the absurdity that a State can, at the
same tune, be a party to the Constitution, and
above the Constitutiou — iu the Union aiid out
of the Union: a suicidal solicism that Kentucky
Avouldnow be the last to admit and tho first to
oppose. ,
Considering, in the spirit either of poUtical
philosophy, or of- Avise statesmanship, the
structure of our national .and local govern
ments — the history of their progress — the de
pendence of the former on the latter-y-tho in
fluence of local sympathies and attachments^ —
the responsibility of the national functionaries
to the people of thc States, and the irrespon
sibility of the State functionaries to the au
thorities of the Union — there can be but little
doiibt that the father of his country Avas right
Avhen he declared that there Avas more danger
of disunion than of consolidation— that there
is more of centrifugal tendency in the States
than of ceutripital attraction in tho General
Government. And does npt our political his-,
tory, and especially thc recent portion of it,
almost demonstrate the prophetic Avisdom of
that opiuion?
To prevent the catastrophe of a dissolution,
by secession, or nullification, it is necessary
that all the powers of the general government
should be recognized, and faiflifuUy and fully
maintained. Such a national and patriotic
course, characterized, by a becoming spirit of
mutual moderation and forbearance in the ex
ercise of conflicting poAvers claimed by the
States and the General Government, and a
prudent abstinence, by each, from the exercise
of such poAver as may be seriously doubted,
may long preserve our union and liberty, and
peacefully advance our beloved country in its
career of substantial prosperity and true
2,-lory. Our organic institutions haye suriived many
trials of tiicir purity and strength. They
have been payed by the heroic patriotism of
such men as Waslungton, and Clay, and
Webster, and Cass, and Eoote. But the sipis
of the times portend an approachin,s; crisis
more decisiA-e, of tlieir fate, than any
through which tha}- yetliayfe passed. Foreign

influence and foreign politics are taking root
in the A'irgin soil of American Republics.
Tlie old Avorld, oppressed Avith the incubus of
a restless and starving population, is strii'lng
to empty itself ou the nOAv — and many of oUr
politicians invito thc disgorgement and claim,
for tho parvenues of all grades, the privilege
of ruling the children of the American stock
of patriots and statesmen, Avho achieved our
independence, founded our institutions, and
consolidated, our liberties: The federal, agaiust
the national priuciple is rcA-ived aild boldly
challenges popular favor-^and reckless prop-
agandism, abolitionism, freesoilism, nullifica
tion, and secession, seem to have grounded
their arms only, as many fear, to ' embrace
each other and prepare for a fratei'ual cmsade
against the peace and integrity of the Union.
If there ever was a time Avhich called, in tones
of thmuler, for the proclamation of tma Amer
ican principles, invoking, by the memory of
the past, aud the perils of the present; and the
hopes of the. future, the manly patriotism of
every true-hearted Ameriean citizen, that time
is NOW. On you, and such as you promise
to be, mainly rest the destinies Of our heaven-
blessed land. Search for the truth — learn
your duties to country and posterity, and act
liko men knowing. their rights and determined
to maintain them — conscious of their dutA,
and resolved to perform it to the uttermost. "
In a former introductory, I ende.ayored to
establish the fundamental principle and object
of the Constitution of the United States, and
to"'expose, as palpably inconsistent with both,
the doctrines of' nnilificatitm and secession.
In this inaugural address, it has been my pur
pose to'presentto you, a comprenhensivc out
line of the poAvers of the government of the
IjTnion, and, incidentally, to add further illustra-
tious. Of the principles yiudicated in that
other address. For your more perfect
satisfaction and assurance, on these vital top
ics, I recommend to yom- . careful considera
tion, tiie far more authoritatiA-o facts aud ar
guments to bo found in the "Madison .Papers"
—the "Letters uf Publius"— the judicial ex
positions of the Constitution bv the Supreme
Court of the United States, Avhilst John Mar
shall Avas Chief .lusticc; and, above all,
the history ofthe model administi-ation of the
first and model I'ri-sident of the United States
—the true exemplar of a Avise and faithful
President of a- Constitutional Republic— "the
Father of his Country"— GEORGE WASH
INGTON.

PRELECTION.

Lexington, Ky., November 20, 1854.
Judge Robertson — Dear Sir: The Law Class of Transylvania Univer
sity respectfully solicit a copy of your Introductory Address, of the 9th
inst., for pubUcation. WELLLINGTON HARLAN,
ROBERT C. FLOURNOY, Committee.

Lexington, Ky., November 21, 1854.
Gentlemen: Our last Introductory Lecture was not prepared for any
other publication than that of its delivery in your presence, But, in
deference to your expressed wishes in behalf of the Law Class, I surren
der itto you to be disposed of as you may think best.
Yours, respectfully, G. ROBERTSON.
Messrs. Harlan and Flournoy, Committee.
33

INTROBUCTORI LECTURE,

Inaugural addresses in the Lsav Department
of Transylvania aie intended to be introducto
ry to the didatic course of the succeeding ses-
Bion. Oursubject on the present occasion is
therefore jurisprudential, or political rather;
and we fear that it will not be attractive to
many, and especially to the fair of our audit
ors. No branch of American Jurisprudence is so
important, or is, therefore, so interesting to
every citizen of the -United States as our or
ganic institutions — all, whether social or civil,
founded on equal rights and moved and sus
tained by the settled opinion of the majority
of citizens. How that motive poAver is polit
ically organized and how it should govern ac
cording to the principle and spiritof tha con-
stitutiun of the United States, is a vital ques
tion of Union and Liberty, the practical solu
tion of Avhich will test the durability and fix
the value of American Democracy.
And this is our theme.
The first instinct of our race is selfish — the
next social: society — indispensable to civiliza
tion — cannot exist without the guardianship
of government, which, tobe either rational or
hopeful, must be adapted to the moral condi
tion and genius of the people. If they are
sufliciently equal in moral power and eufii-
cicntly virtuous and enlightened to maintain
justice and stability, organized Democracy is
the legitimate, and best form, but, for a peo
ple of an opposite character, it would be the
worst. As the best and wisest men often err in feel
ing and in judgment, no form of Democracy
would be sound or safe, among any people, un
less, by some fundamental organization, it se
cures individuals and minorities against the
occasional passions and delusions of a domi
nant majority, however it may be constituted
or however high may be its moral grade. That
democratic form which recognises the political
equality of all the citizens, must, to secure the
ends of all good government — peace, justice
andliberty — be s« organized as to prevent the
transient errors of the numerical majority from
doing mischief before the sober reason of the
commonwealth can be brought wholesomely
to operate. This is proved by tho imperfec
tions of our race in its best temporal state,
as well as by tho history of all popular gov
ernments on earth. He who denies it virtually
denies the necessity of any civil government,
and he who doubts itis no statesman, and
should never be a la-w-giver.
The founders of our religious snd political
liberty felt that grwt truth a« self-evident;

and, guided by its light, an their pole-star,
they framed the constitution of the American
¦[Tnion on principles of practical -wisdom as
well as the dictates of universal benevolence.
This, an analysis of their great work wUl
abundantly prove.
Our declaration of Independence recognises
and proclaims the great phenominal truth that
all American citizens are entitled to equal po
litical privileges, and that any just govern
ment among them must be instituted by them
selves, as co-equals, and solely for the benefit
and security of each and all of them. Instruct
ed in the principles of civil and religious lib
erty, trained in habits of social and political
equality, and practiced in local self-govern
ment, as they had been in their colonial pupil
age for more than three generations; the ma
jority felt that they were prepared, if men on
earth could be qualified, for such popular in
stitutions; and, .consequently, in their State
and National constitutions, they determined
to try the experiment of such self-govern
ments on the basis of the representative prin
ciple qualified and guarded by organic checks
and balances. Taught by enlightened reason
and their own experience, as well as by tha
histoi'y of past ages, that a pure Democracy is
both impracticable and unsafe and could nev
er accomplish the ends of any just govern
ment, they had discovered that, to combine
stability aud security with universal liberty
and equality, fundamental limitations on the
legislative ".viU of thc majority are indispen
sable. While they kueAv that, when m a state of
natural freedom, the numerical majority neces
sarily have the right to establish the organic
law, .ind that .". dissentient minority must.
therefore, either acquiesce in the form thus
adopted or become expatriated, they also saw
that practical government would often deviate
from the track prescribed by any theoretic form
which should leave to the majority legislative
omnipotence. No prudent man would prefer
such a delusive form, nor could any just man
live under it long in either peace or safety.
The great desideratum therefore was such an
organism as would, as far as human contri
vance could, leave to each citizen all the natu
ral right and to the majority all the political
poAvcr consistent with the security of the mi
nority, hoAvevcr small or unpopular. This is
the most difficult problem in Republican gov
ernment , and has never yet been solved unless
its solution may be found in our Anglo-Amer
ican constitution.
The first object of the conititutiou of th*

013 POPITLAE INSTETJCTIONS.

SSf

Cnited States -ivas to conaoUdate the people of
theie states into one nation, and only one na
tion, for all foreign and international purposes,
and also for all domestic purposes involving
tha harmony, justice, and integrity of the
Union, or in which no one state should be ex
clusively concerned. To effect that aim the
next object was to establish a national gov
ernment with powers co-extensive with the
end, and so organized as to secure their prac
tical, to the full extent of their theoretic, su
premacy, and, consequentiy, divest the State
governments of all antagonistic sovereignty.
And the next object was to secure the peo
ple of the Union and States against any abuse
or usurpation of power by the General Gov
ernment, or by its organs or functionaries. Ts
effectuate these objects the organic structure is
skillful and elaborate: 1st, the government of
the Union is endowed, to the extent of its na
tionality, with aU the functions of the most
absolute sovereignty. Legislative, Judicial,
and Executive — 2d, to prevent concentration
and preserve a safe equilibrium, each ef these
functions is confided to a separate department
of magistracy, each, te a eonservative extent,
made independent of the others, and intended,
to the Uke extent, tobe above popular passion
and t« act in defiance cf it, so as to assure the
prevalence of reason, the reign of wisdom, and
thc maintenance of justice and order. Each
of these three organs represents, and one in
equal degree with another, the popular sover
eignty; fhelegislative, when acting within its
prescribed sphera, exercises the legislative
function of the people of the Uuited States ,-
the Judiciary, when it decides on and applies
the law in a case within its jurisdiction, ex
ercises the judicial function of the same peo
ple; and the Executive magistracy, under the
like circumstances, exercises the executive
function. Consequently, every constitutional
act of either of these organs of the people of
the United States is, for the occasion, deemed
to be the echo of the rectified popular voice,
and is, politically, the act of the constituent
body. Wherefore, the act of each, within its
prescribed sphere, is as supreme as the power
of tiie original and ultimate sovereign, the
people, could make it; and, the constitution be
ing fundamental and inviolable, sveiy such
authoritative act is a suprenie law to all the
functionaries of the general and the local gov
ernments and to evei-y citizen of every State
and of the United States — When the Judiciary
pronounces a judgment,. it is as much the sen
tence of the people of the United States as
any executive orlegislative act could be deem
ed to be their act. The Judiciai'y, like Con
gress and. the President, is the people's ap-'
pointed organ of one of the three elementary
functions of all sovereignty. And in a consti
tutional sense and for e-rerjr legal purpose, the
people speak as authoritatively through their
courts as they do through their Congress or
their President. The Legislative, therefore,
' is^not ihe supreme power; butait is o^supreme
po-wer. It is the constitutional exponent of the
sovereign will of the constituent maes in the

enactment of law. But tha Judiciary is equal"
ly a supreme power, and equally utters th*
constitutional and sovereign judgment of th*
same constituency in tha exposition and ad
ministration of all the laws of the Union in
every judicial case. One of these departments
is as supreme as the other; the one representing
the organic sovereignty of the people in their
legislative function, and the other represent
ing their organic sovereignty in their judicial
function; and bo political organization can b<
theoretically wise or practicdly safe, unless it
confides each of those distinct functions to
separate organs of thepeople and, to a con
servative extent, makes them independent of
each other, and so far independent also of ths
passions of any ascendant party as not to be
afraid to do their duty as contemplated by the
founders of tho government. The constitu
tion of the United States is, organically, a
beautiful illustration of this great principle
of political liberty.
Fundamental guarantees of cardinal rights,
and limitations on legislative power, are de
signed to restrain the governing majority. If
that majority, through its legislature, should
vielate any of these guarantees or overleap any
of those limitations, the constitution would
only mock the outraged citizens unless it had
provided, for their security, a tribunal vested
with power and armed Vf ith the will to pro
nounce the unconstitutional enactment void,
and to prevent the enforcement of it. An en
lightened, conscientious, and intrepid judici
ary is the only safe depository Bf that power.
Any legislative act inconsistent Tvith tha con
stitution is necessarily void, and therefore,
cannot ba law; because the legislature, deriv
ing all its authority from the constitution, can
not make that a law which is prohibited by
the charter of its power, the organic ¦wUl of
the people, which is supreme over all and in
violable by all.
And the Judiciary, appointed to utter and
uphold tho law, must necessarily decide that a
legislative act conflicting with the constitution
is not law, but that the constitution inviolate
ia the supreme and, to the extent of the con
flict, the only law. All men being frail and
fallible, and the best of them being, in some
degree, under the influence of interest and
ambition, no Judge, who is dependent on a
bare popular mEyority for his office and its
emoluments, can be expected, always or very
often, to enforce law or sustain the constitution
against the interest or the will of that same
dominant, and, often, prescriptive majority.
And therefore Judges of the United States are
appointed by the President and Senate, to
hold their offices during good behavior, and
cannot be removed except on impeachment sus
tained by two-thirds of the Senate. _ The Ju
diciaiy is thus placed by the constitution above
the power of the majoritjr. Some such funda
mental anchorage is indispensable to security
and stability'j,against the passions and occa
sional errors of tho majority of any free peo
ple entitled to universal suifrage. The legis-
ilative majority cannot safely possess the judi-

360

INTRODUCTOKT lECTUKE, BEllVEEED

eial power or the right to control it. Such an
nUchecked authority might soon paralyze all
the guarantees and limitations ofthe constitu
tion. The same conservative' principle, though
not so manifestly, is yet as essentially, em
bedded in the organization of the legislative
department. The constitutiou of Congress —
the mode of electing the two separate branch
es—the terms for which the members of each
branch are elected — and the coficurrent sanc
tions required for any legislative act, were,
each and all, designed for assuring more in
telligence, deliberation and care, than could be
expected in the constituent masses, under the
most auspicious circumstances; and the pur
pose of all this elaboration of checks on igno
rance, passion, and precipitancy, was to save
legislation'from the instability, imperfections,
and errors, incident to all popular masses of
all grades of intelligence and degrees of vir
tue — but few individuals of them, feeling
proper responsibility, and still fewer possess
ing the qualities of wise or competent law
givers — and, altogether, therefore, if each were
a Plato, an unsafe legislative body. Even a
single representative assembly, especially
when multitudinous, is an unsafe depository
of legislative power. This has been demon
strated, as in revolutionary France, by all such
bodies in every country and in every age
which has tried the hopeless experiment. And,
consequently, the constituent body itself, more
numerous and excitable, feeling less responsi
bility, more subject to commotion, and alloy
ed with much larger infusions of ignorance
and passion than any chosen assembly of se
lect representatives, must always be incompe
tent for wise and just legislation. The repre
sentative is, therefore, a vital principle of a
Republic: aud a division of the Legislature
into two independent branches, so constituted
as that each may operate as a check on the
other, is not much less necessary and useful.
This theory is exemplified and commended by
all the constitutions of the States, as well as
by that of the Union. Tho constitution of the
United States, much more impressively than
thatof any one of the States, stereotypes the
conviction of its architects and approvers, that
the safety of the people and the integrity of
th6 Union require a Senate so elected and so
constituted as to feel, in a much less degree
than the popular branch, the contagious sen
timents aad passions of the constituent mass
es. That such was the chief purpose of the
peculiar organization of the Senate of the
United States is not only obvious on the face
of the coustitution itself, but is proved by the
following extracts from the debates on that
subject in the Federal Convention. On a pro
position to elect Senators for nine years, Mr.
Madison said: — "In order to judge o'f the forni
to be given to this institution, it will be proper
to take a view of Uie ends to be served by it.
These were, first, to protect thepeople against
their rulers — secondly, to protect the people
against the transient impressions into which
they Uiemselves might be led. A people de

liberating in a temperate moment and with the
experience of other nations before them, ou
the plan of government most likely to secure
their happiness, would first be aware that
those charged with the public happiness might
betray their trust. An obvious precaution
against this danger would be to diyide tha
trust between different bodies of men who
might watch aud check each other.
"It would next occur to such a people that
they themselves were liable to temporary er
rors through want of information as to their
true interest; and that men chosen for a short
time and employed but a small portion of that
in public affairs, might err from the same
cause. This reflection would naturally, sug
gest that the government be so constituted as
that one of its branches might have an op
portunity of acquiring a competent knowl
edge of the public interests. Another [reflec
tion equally becoming a people on such occa
sion would be rhat they themselves, as weU
as a numerous body of representatives, were
liable to err from fickleness and passion. A
necessary fence against this danger would be
to select a portion of enlightened citizens,
whose limited number and firmness might
seasonably interpose against impetuous coun
sels. It ought, finally, to occur to a people de
liberating on a government for themselves, that,
as different interests necessarily result from
the liberty meant to be secured, the major in
terest might, under sudden impulses, be
itemptod to commit injustice on the minority.
How is this danger to be guarded against on
tho republican principles? How is the dan
ger, in all cases of interested coalitions to op
press the minority, to be guarded against?
Among other means, by the establishment of
a body in the government sufficiently respect
able for its Avisdoni and virtue to aid on such
emergencies the preponderance of justice by
throwing its weight into that scale. Such be
ing the objects of the second branch in the
proposed government, he thought a considera
ble duration ought to be given to it. He did
not conceive that the term of nine years could
threaten any real danger — that, as it was more
than probable that we were now digesting a
plan which, in its'operation, would decide the
fate of republican government, we ought not
only to provide every guard to liberty Uiat its
preservation could require, but be equally
careful to supply the defects which our own
experience had particularly pointed out."
Govc-rneuer Morris, speaking ofthe object of
the Senate said:— "'What is this object? To
check the precipitation, changeableness, and
excesses of tho first branch. Every man
f observation had seen, in the democratic
branches of the State Legislature, precipita
tion — in Congress (then consistiug of only
one body) changeableness— in every depart
ment excesses against po«^sonal liberty, private
property, and personal safety." " J
1 he convention having fixed tiii yeaiC as
the Senatorial term, and Mr. Ellsworth having I
proposed that the Senators should be paid by
their respective States, Mr. Madisou said, on

ON POPtTLAE INSTRtrCTIONS

S61

that proposition, that he ¦' considered this as a
departure from a fundamental principle, and
BuWerUng the end intended by allowing the
Senate a duration of six years. They would,
if this motion should be agreed to, hold their
places during pleasure ; during the pleasure
of the Stale Legislatures. One great end of
the institution was that, being a firm, wise,
and impartial body, it might not only give
stability to the general government in its ope
rations on individuals, but hold an even
balance among different states. The motion
would make the Senate, like Congress (the
continental,) the mere agents and advocates of
State interests and vieAvs, instead of being the
impartial umpires and guardians of justice
and general good."
These were tho sentiments and objects of
those who mad^, and of those Avho ratified thc
constitution. In the letters of Publius, expo
sitory of the principles of tiie constitution, and
of the objects of its various provisions, — and
on the authority of Avhich exposition the peo
ple ratified Avhat the federal convention had
done, — the following, among other corrobora
tive views, were presented :
In the 63d number, the authors, after urg
ing, on various grounds, tbe utility of a stable
body constituted like the Senate, add the fol
lowing consideration : " For a people as little
blinded by prejudice or corrupted by flattery
as those whom (we) address, (we) shall not
scruple to say, that such an institution may be
sometimes necessary as a defence to the peo
ple against their own temporary en ors and
delusions. As the cool and deliberate sense of
the community ought, in all governments, and
actually will in free governments, ultimately
prevail over the views of its rulers, so there
are particular moments when the people, stim
ulated by some irregular passion or some
illicit advantage, or misled by the artful mis-
represeniatjons of interested men, may call
for measures Avhich they themselves w'ill after
wards be the most ready to lament and con
demn. In these critical moments, how salutary
will be the interference of a temperate and re
spectable body of citizens in order to check
the misguided career, and suspend the blow
meditated by the people, ^gainst themselves,
until reason, justice and truth can regain their
authority over the public mind V
The more popular branch is also organised
wilh a purpose of its sometimes operating aS
a salutary safeguard against sudden impulses
and delusions of a majority of its constituents.
The biennial term of service was fixed with
the vie'n' of enabling the members of the House
of Representatives to acquire useful experi
ence in the forms' of legislation, and to exhibit,
to each ofher, their true characters, aud also to
relieve them from unreasonable apprehension
of being proscribed for doing right — time be
ing allowed for passion to subside and error to
be corrected, if any such passion or error should
influence the electors to desire a course of con
duct inconsistent with the general welfare —
and a service of tvro years being often long
enbagh to satisfy the taste or ambition, of the

representative. Even as to this branch, it waa
contemplated by the framers lof the coustitu
tion that the most competent men would be
chosen, and would, on alt their responsibUities,
do whatever^ in their honest and considerate
judgments, Avould be best for their whole
country, which, when elected, each of them
represents, and to which, therefore, each of
them must be, and should feel himself to be,
responsible. The theory of the constitution
is that, through this organ, as well as through
others, the crude mass of popular feeling and
opinion, when not well digested, should be
secreted and rectified, so as to make the sober
reason of the Commonwealth the ruler and
guardian of the Commonwealth. And, ac
cording to that theory, neither the passion,
nor opinion, nor wish of the popular majority
ought, in the first instance, always to prevail
in their own House of Representatives. But
the practical check through this branch is not
equal to the theoretic purpose. Still, however,
it has been sometimes felt and sometimes
blessed. But, anxious to entrench the consti
tution, with ail its guarantees of right and all
its promises of justice and peace, behind bar
riers as sure as possible consistently with tha
ultimate and wholesome power of the majority,
and fearful that both Congress and the Judi
ciary, as respectively organized, might not
always be sufficient for that purpose, the fe
deral convention and the concurring .people
gave, to the President, the authority to, pre
vent acts concurred in by less than two-thirds
of each House of the National Legislature. —
Alexander Hamilton, Rufus King, Uoverneur
lUorris, James Wilson, and others of the con
vention, supposed to aim at aristocratic tend
encies, advo:a'ed an absolute veto. While Dr.
Franklin, Roger Sherman, George Mason, and
others more imbued with the spirit of Demo
cracy, were opposed to any veto by the Presi
dent. For compromising these conflicting
views, James Madison and Elbridge Gerry re
commended the qualified veto, as afterwards
adopted. But. the avoAved object of all who
voted to vest th.at power in the President Avas
to arm him with the means of defending the
Executive against encroachments by either of
the other Departments, and also of aiding the
Judiciary in preventing the enforcement of
unconstitutional acts of Congress ; and most
of the members seemed to think that the veto
Avould not be perverted to any other object, and
would be exercised only on extraordinary oc
casions ; to prove which it Avas stated tliat no
act of the Parliament of England had been
vetoed by the crown since the year 1C94. But
the prophecy has not been fttlfilled. ' And
there may now be somo reason to doubt whe
ther the danger of perverting this higli prero
gative and of thereby frustrating important
public policy and settled public opinion, will
be compensated by all the good thatitwa.i
ever hoped to achieve. Although the crown
of England has forborne to employ the veto
for nearly 200 years, yet Republican Presidents
and Governors in America have made .1 quite
frequent and familiar use of it for the last 25

S6^

1 NTRODUOTORY LECTTOB BBMVIRID

years. The disuse of it in England has re
suited from two principal causes; 1st, The
patronage of the crown, which enables it, by
influence, to control the votes of many members
of Parliament so as, in most instances, to pre
vent measures not acceptable to Royalty ; Snd,
The prescriptive power of the Commons to
withhold supplies ; which^has been success
fully used for ages as a lever for sustaining
and elevating the rights of the people, and
for making public opinion effectual, ''rhis is
more than Tribunitial power. It is a power to
stop the wheels of Government, and starve the
Royal Household ;— it is the club of Hercules
uplifted over the head of a pigmy ; — the sword
of Damocles pointed at the heart of ambition:
It is a veto over a veto. When the Commons
pass a popular measure and ask the concur
rence of the crown, they tacitly, but quite sig
nificantly, say to majesty, " approve or die, —
give your royal assent or we will withhold all
your supplies aud subject you, not only to hu
miliation, but to dependence and destitution."
And this is the chief cause of tho veto's long
^lumber in England. But, under our consti
tution, the President's salary cannot be Avith-
lield ; and it is the iropei ative duty of Congress
to grant all other necessary supplies. The
British wand is, therefore, not ill American
hands. But the patronage of our President is
as potent as that of an English King or Queen.
By a dexterous and unscrupulous use of it he
nu^y mould Congress to his Avill and even
bring a majority of tha people to an apparent
.ipproval of an arbitrary veto hoAvever selfish,
iiBgracious, or hurtful. And consequently, as
inodern history proves, public opinion has not
,-.s nuich influence on elective American
President as it has on the hereditary British
monarch. The qualified veto here ij practically an ab
solute veto. No President has yet b;en over
ruled by the constitutional two-thirds — and
no President, who knows how to exercise poifer
for the sinister purpose ol increasing his iuflu-
••nce, ever will be. Had our fathers of 'S8
foreseen or seriously apprehended such a result,
they never would have permitted the veto or
left it unmuzzled and omniverous as it mar be
likely to become. They intended to bridle it
?n as to keep it in theconstitutional track, aud
iheir journal and debates show that they in-
1 ended to preserve Congress from the vortex
tjf Executive patronage, by declaring itsmsra-
bers ineligible to any other place of public
iiust which could b? conferred by the Presi
dent during their legislative term. Had they
•persisted in that determination, i.nd especiaUy
had they extended the ineligibility to the Pre-
r-idential t«rm, thc-y would have made repre-
r-eutalives in Congress much more true and
faithful to their constituents than many of
I'nem have been, or will ever be, aa long as a
I'resident can seduce them from iLcir duty to
their country by the bait of ofSce more profita
ble or attractive than their seats in legislative
chairs of uncertain tenure. But, just before
ihe close of the Federal Convention, tho salu
tary interdict, which seemed to have been

unanimously favored in the preceding stages,
was stricken out by a majority of one on a
silent vote. And that inadvertent act left th»
veto almost unchecked, and has armed the
President with the means of corrupting Con
gress, and of either moulding public opinion
to his will or resisting it when it ought to
prevail. And thus a selfish and ambitious
President may pervert that, which was in
tended as a wholesome check on popular haste
and passion, to ends incotnpatible with the
genius of our institutions. But this organic
check, as provided by the constitutioB, shows
that its fi/unders were anxious to erect a strong
breakwater against the tides of passion which,
but too often flow from unchecked, excited,
and unreflecting majorities.
We thus ses hoAv the people of the United
States, though unequal in moral power, yet
made co-equal in political rights, organized
the numerical majority and provided fun
damental checks on its inherent authority, for
the purpose of preventing hurtful precipitancy
in public opinion and of securing the ultimate
prevalence of intelligence and reason.
Knowing that large portions of the aggre
gate population would, if let alone, be incom
petent for safe self-government, and that even
those classes be.st qualified for it would be oc
casionally liable to passion aud delusion, our
fathers hoped that, in this virgin land of pro
mise, universal suii'rage might be tolerated if
so_ organized and bridled as to secure to
mind its just iiiiiuency over matter, by a pro-
cass cf iiitration which might afford time
enough for sober deliberation and for cleans-
iug public sentiment of the elimental impurities
ofits first indigested stale. They believed that,
if man in his best estate be capable of self-
!.;overnmer.t, the opiuion ,j' the constituent
majority, rectified by distillation through the
organs previded by the constitution,
ought to, rule. By thus securing time for de
liberate and thoicug'u inyestigation, and for
the prevalence of intelligence over ignorance
and of reason over passion, thoy hoped that
the opinion of those numero pluris would be
sufficienUy modified by that of those virtute et
honore majori:-,. TLey intended that the crude
aliment of public opinion should be elaborated
and assimilated iutu vital inteUigence bv the
digestive organs they provided in their' con
stitution. And thoy expected, of course, that
£ll thor:e organs would be functionally sound,
and that t:^ch of them would always perform
its allotted function I'r.ithfuUy and whole
somely. Those or"-.ins are admirably adapted
to promote the vilallcy and maintain the sta-
bdity of political liberty. But any essential
derangement i:; their natural functions wUl
result in unhealthy secretions tending to dis
ease and death. If Congress wiU tiunk for
Its country, as it ought, and -yiU firralv act as
It thinks will be best for that country,' if the
judges shall be wise ,ind honest functionaries
and, looking>nly to Ihuir duties, shall uphold '
Justice aud the supremacy of the constitution-
and if the President,yika Washington, shaU
in all his official acts, ba guided by au en-

02Sr POPULAR INSTEUOTIONS.

£63

li|;htened sense of the public interest, and a
scrupulous regard to his constitutional duties ;
then each department will fulfil the purposes
for which they were organized. And then,
especially in a season of popular effervescence,
when the public mind is not sufficiently in
structed or too much ac;itated for safe delibera
tion, the impetuous tide will be stayed by some
one or all of the organic barriers provided for
all such occasions by the constitution, until the
people shall have had ample time tobccoins dis
passionate and well informed, when, if wrong
in the first instance, they will escape from the
consequences of their error, but if right at
first, they will finally, and in due time, effec
tuate their deliberate, persevering, and well
considered will. This is the theory of the
constitution as beautiful and wise as it is ne
cessary and conservative ; this is its vital
principle ; and this is its first object and its
last hope. Without it Democracy, even of
the representative typs, must soon become an
archy, oligarchy, or autocracy ; but, with it,
in all its theoretical purity and full exempli
fication, the greatest degree of popular liberty
and equality, compatible with any form of
human fgovernment, may be secured and en
joyed. This is proved, not by our own expe
rience only, hut by the history of our race in
every age. Without firm and effectual restraints
ou the sudden impulses of the majority, no
popular government can either long stand or
secure the rights of individuals or of minori
ties. This is as certain as that man ic only
man. But a pestilent exotic has already taken
deep root in the heart of the constitution; and,
if it live and grow, it will paralyze the organic
life of that unequalled political structure. Its
germ, planted by ambition, has been Avatercd
by charlatanism, aud nourished by egotism.
The Demagogue feeds on it; and, like the ser
pent's charm, it fascinates and decoys but too
many of multitudes Avho do not understand
the spirit and object of the constitution, and
have only an imperfect knowledge of the phi
losophy of organized liberty. It is called,
"the right of instruction" — a popular name
which imports that it is the political duty of
the members of each branch of Congress to
echo, by their votes, the knoAvn will of their
electors. The sole argument in support of
this seductive heresy, though to the superficial
thinker quite specious, will not stand the test
of severe scrutiny. Its postulate is the as
sumption that the representative is only the
substitute of his electoral constituents; and the
conclusion is,, that he should, therefore, as
their agent, represent tlieir Avill.
It will be our purpose to suggest, on this
inaugural occasion, some general considera
tions to' show,that the position just stated is
not tenable, and that, if mainfained, it would
frustrate the aims and sap the foundations of
the constitution.
The House of Representatives will be first
coogider«d. A member of that branch of Con

gress is not tho mere agent of his electors; 1st.
because they were appointed to elect only for
the purposo of convenience and policy. All
the people of the U. States could not conveni
ently elect all the members; and to secure tha
election of competent members, it is proper that
those, who can knOAv the candidates, should be
trusted Avith the choice, and that the person cho
sen should be acquainted Avith their local Avants
andinterests. But every member, wheresoever
and by AA'homsoevcr chosen, is, Avhen elected, a
representative of all the people of the United
States; ho should consult the Avolfare of all;
his votes affect the interests of all; and the
laAVs, Avhich those votes help to enact, operate
on ail; he, therefore, is a representative ofthe
whole; and consequently, so far as popular
interest and opinion should influence his public
conduct, ho should consult the interest and the
opinion of the Avhole. His responsibility is
co-cxtensive witli the operations of his acta;
and there is, therefore, no coustitutional
reason Avhy he should obey the ^ voice of his
electors, rather than that of the Avholo constit
uent body of the Union, for Ai'hom they elected
him. And the only reason why he Avould do
so, is merely personal and selfish; that is,
only because he desires to be re-elected.
'But, if the member could be deemed tho
substitute and agent of his electors, he Avould
be under no political obligation to vote their
sentiments; ,1st. because his votes operate on
his own interests, as Avell as on theirs; and it
is indisputable that, Avhen an agent has a per
sonal interest in his OAvn acts, the only instruc
tions which it is his duty to obey, arc those
given in the charter of his authority. The
Constitution is the member's charter, and he
is bound by no mandate from any other and
subordinate source. 2nd. Oue of the chief
objects and advantages of representation is
the benefit flOAving from argument, delibera
tion, and the inter-communication of infoi-ma'
tion among the members of the representative
body. These objects will be frustrated and
these advantages Avill be thrown aAvay by sub
servience to the voice of the electoral body;
and the only true theory of such instructions,
therefore, Avould be, that the member should
vote, not as those constituents desiro, but as
he believes they lA'ould vote had they beeu in
his plaee and heard all that he had heard.
And consequently, if he even acknoAvledged
any such right of instruction, he might, after
voting against the avUI of his electors, Avell
aud truly say, "I might have thought as you
thought, and voted as you desired, had I been
only where you were, and heard only Avhat
you heard; but I have been convinced by ar
guments unheard by you, and facts unknown
by you; and I have no doubt that, had you
beeu in my place, you too, would have voted,
as I felt it my duty to you, to my country, and
to my OAVU conscience, to vote; wherefore, I
have voted as your representative ought to
have voted." If this would not be » true and

264

INTRODUCTORY LECTURE, DELIVERED

sufficient answer to the strictest sect of in-
structionists, the constitutional organization
of the representative principle would be a
Avorthless humbug.
2nd. It is admitted, by all instructionists,
that a member is not bound, by auy form of
instructions, to vote against his OAvn construc
tion of the constitution, because he is sworn to
support the constitution, and he must be the
keeper of his own conscience. This is a sur
render of the Avhole principle of the doctrine
of instructions. Every member is also pledged
by an oath to be true aud faithful to the Uni
ted States. And Avho is to be the keeper of
his conscience as to what is such fidelity?' If
he vote against his own conviction of the in
terest of the Union, is he, iu his oavu opiuion,
faithful to this United States'? Does he not, in
his own conscience, violate his oatM Does
he, in his own judgement, promote the gene
ral welfare; and is it not his unquestionable
duty to endeavor, in his whole course, to do
that, on all his responsibilities to his electors,
to his conscience, and to his whole country?
If he be bound to act as the mere agent of his
OAvn little district on questions of vital poUcy,
is he not equally its agent in every vote he
may be called to give'? And if, consecpiently,
his vote should be the echo of that district on
any one question, should it not be so, just as
much, on every question on Avhich he votes as its
representative'? If he vote only as its substi
tute, its Avill should equally control all his
votes. And the concession that ho» should
vote his own opinion on one question necessa
rily implies that he should do it ou every
question. 3. Popular instructions are scarcely ever
practicable, and will ahvays be liable to great
abuse. The principle is that the will of the
constituent body should be that of the repre
sentative. If the constituent's will be knoAvn
or inferred, the manner of communicating it is
immaterial. Formal instructions are not ne
cessary, and, if ever attempted,' hoAv is the
member to knOAv that they are endorsed by a
majority of his electors, or Avhat influence or
management procured them, or howAvell those,
who might have concurred in them, understood
the subject, or Avhat would be their opinion On
full discussion and grave consideration? And,
when there is no express instruction, he may
bo misinformed or otherAvise mistaken as to
the opinion of his constituents; and, in every
such case, such mistake might be a good plea
for a bad and unpopular vote. The doctrine
of instructions impairs proper responsibility
aud induces temporizing members not only to
feel the popular pulse, instead of their OAvn
minds, but often to help to excite pulsations
iu unison Avith their oavu selfish interest or
ambition. It relieves lazy and timid members
from the superfluous labor and responsibility
of thinking for themselves, arid encourages them
to become servile and to engage iu the vulgar

agogues, instead of being, as they were de
signed to be, vigUant sentinels on their coun
try's watch-tower, and faithful guardians of
their country's justice, honor and peace.
Moreover it would not only be incongruous,
but humiliating and unjust to require a mem
ber, and especially after long and able debate
not heard by his constituents, to record, for
all time, as his opinioU, that which was not
his opinion, and at the absurdity of which his
conscience and judgement revolted when, as a
poor cuckoo, he mechanically uttered it ou a
call for the yeas and nays. Can such be the
imperative political du^ of an enlightened,
honorable, patriotic, and conscientious mem
ber of the august Congress of the United
States? 4. The articles of Confederation made the
delegates to Congress dependent ou their res
pective States for their compensation, aud ex
pressly reserved to each State the right to
recall any of its delegates whenever it might
choose to do so. This made each delegate
dependent on the will and pleasure of his
State. But the constitution of the United
States secures to every member of Congress a
reasonable compensation out of the National
Treasury; neither his State nor his district is
bound or permitted to pay him; and he is also
entitled to hold his seat for a prescribed term,
even against the Aviil of his district or State.
All this shoAvs that, in adopting the constitu
tion, the people intended that their members
in Congress should not, as under the Confed
eration, be dependent on them or subject to
their control otherwise than as moral influence
and responsibility might reasonably operate.
Besides, the constitution guarantees to the
people the right to assemble peaceably and
petition Congress for a redress of Grievances.
This implies a conviction that the people had,
and should have, no right, by instructions, to
compel their representatives do that which the
constitution Avas so careful to secure to them a
right to merely to petition for.
5. The assumed mandatory authority of in
structions makes the member a mere automa
ton, often a puppet in the hands of artful wire-
Avorkers, and may defeat the object and effect
of elaborate discussion aud consideration of
subjects in Congress. The member may feel
that it Avould be idle to think for himself if he
be bound to act as others may chopse to dic
tate; and all argument addressed to him will
be useless if it shall be his duty to vote against
.the light shed and the conviction produced by it.
6. If a member of Congress be bound by in
structions, why is not a judge equally bound?
The Judge is as much the people's organ as
the Legislator can be. Each is a representative
of the peoples sovereignty, and the only differ
ence is, that one represents the judicial, while
the other represents the legislative function
of the same sovereign over both. But Avhoev-
er presumed to think that a judge is bound to

trickery of prostituted and unprincipled dem- 1 decide as public sentiment mftv suggest? It i»

ON POPULAR INSTRUCTIONS.

265

his duty to utter the liny, and administer jus
tice to the poor, the humble, and tho obno.x-
ious, as well as to the rich, the exalted, and
the popular, in defiance of public opinion. A
Judge Avlio Avill not do this is uuAVorthy of his
trust, aud perA-erts the groat object of it; a legis
lator is equally unworthy Avho fails to tliink
independently, and refuses to act according to
his oAvn clear opinion. His department was
organized as it Avas, aud he Avas elected as he
was for tAVO years, to thus think and thus aet,
whenever he is convinced that his country's
Avelfare Avill be promoted by it.
7. But the most comprehensive and conclu
sive argument against the political obligation
of popular instructions arises from the organi
zation and limitation of all the functions of
sovereignty by the Constitution.
If, as is undeniably implied by the character
of the constitution and proved by history and
the leadingobject of representation, the people,
however intelligent and virtuous, cannot di
rectly legislate Avisely or safely in primary
assemblies, do not the causes oftheir incapac
ity apply, Avith even gi eater certainty and
force, to their less considered and less respon
sible instructions? If they should not legis
late, should they control those Avho, for that
very reason, Avere chosen to make laAVS
for them? If they could not be trusted to
make laAv, could they be trusted with authori
ty to compel Congress to pass a laAV Avhich
they, themselA-es, are too multitudinous, incon
siderate, and irresponsible, in primary meet-
ngs, to enact wisely? Moreover libertyAvill be
insecure, aud justice unsafe, unless the popu
lar majority are subject to organic checks
which Avill compel them to pause and soberly
reflect. And the objects of all the checks
provided by the constitution may be defeated
if the doctrine of instructions shall ever be
generally recognized and carried out iu prac
tice. With such barriers around them, Theseus
would never have been banished from his coun
try by an Athenian mob excited to fury by thc
primate of demagogues — Jleiiestheus; nor
Socrates doomed, by the same sort of a ma
jority of numbers, to the hemlock; nor Aris
tides to ostracism; nor Cicero to exilement by
the profligate Clodius, Avho stooped from a
.1 patrician to a plebian rank, to deceive and
lead an envious and ignorant multitude. On
all those memorable occasions of reckless
popular movement, the deluded actors, ou
sober reflection, repented. They built a mon
ument to the memory of their great benefactor
Theseus — they consecrated the ashes of their
deified Socrate.s — they recalled their just Aris
tides to save, from foreign foes and domestic
demagogues, that country A\'liicu his invincible
virtues so impressively illustrated — and Cicero
was restored to his country and its confidence,
and once more, saluted as the p.vtek patki^
who had adorned his age bv his eloquence and
34

phUosophy and had, by his patriotism, rescued
his countrymen from a Cataliniau vortex.
But, had right aud justice been guarded,
against tho impulses of passion and the delu
sions of ignorance at Athens and at Rome, by
such organic securities as those provided by
our admirable constitution, undisturbed by
popular instructions, the dominant party Avould
have beeu held back until they had become
cool and abjured their momentary errors, as
they soon did; and organized and limited De
mocracy would then have escaped thc suspi
cion cast upon it by those democratic out
breaks of liberty unorganized and unchecked.
If Congress must speak as the majority feels,
all the AvonderfuI machinery of our national
government, organized for the purpose of reg
ulating the motive poAver of public sentiment,
often as explosive as steam, would, in time,
be rendered powerless, and the transient pas
sions and delusions of the majority, instead of
their deliberate reason and final judgment,
AVOuld reign unchecked and soon drive to an
archy, revolution, and ruin. To avert such a
catastrophe Avas the object, and is yet the hope,
of our fundamental distribution aud organiza
tion of the power of ruling majorities. But
the popular doctrine of instructions is a cor
morant in the tree of life, aud if long permit
ted to live and feed, aa'IU surely make it fruit
less, sapless — dead. ,.
The only constitutional poAver the electoral
constituency can have, or ought to have, over
a member, is that moral influence arising from
sympathy, and his responsibility to censorship.
¦They can neither remove nor otherwise control
him during his term.
But public opinion, however formed, is
entitled to respect, aud, Avhen deliberately
made up, is entitled to, and Avill ahvays com
mand a great degree of deference. 'There is
no danger that it Avill uot, in any of its multi
form phases, be sufficiently respected by every
functionary. The only fear is, that it Avill
have on all, and especially those of the legis
lative department, too much influence — more,
much more, th.an Avill be consistent with the
spirit and ends of the constitution. The great
danger is, not that representatives will Avan-
tonly contemn deliberate public sentiment, but
that they Avill be too much influenced by evan
escent popular impulses, and Avill be governed
more by the clamor of the noisy and designing,
than by "the still small \-oice of reason," ofteu
modestly whispered by the honest and indus
trious, but too often droAvned by the vocifera
tions of demagogues and their Prietorian
bands. A demagogue is a sycophantic parisite
— a serA'ile tool — a slave at the feet of power.
And, though the object of bis idolatry is not a
titled king, yet he faAvns at the feet of a Bria-
riean monarch, au excitable multitude, on
Ayhose credulity, vanity and passions, he plays
with all the dexterity of an artful courtier.
A member of the American Congress should
be an American statesman — not, Uke Bnrk*

266

INTRODUCTORY LECTtRfi, DELlVERBfi

or Cato, too tenacious of abstract truth to do
Avhatever may be practically best; but — en
lightened by proper knowledge, and animated
, by a true American heart, throbbing for his
whole country — always doing that Avhich he
believes to be best for that country in all time.
Such a public servant is a public blessing and
will always be honored, even in exile. The
opposite character Avill be a curse to any peo
ple, and his posthumous doom Avill be- — in
famy. The Constitution of the United States con
templates a Congress of Statesmen: the con
tagious doctrine of instructions will make
them sycophants — slaves — demagogues. We
must speedily choose betAveen the blessing and
the curse. Blind subseryience to the apparent
will or feeling of the numerical majority has
already impaired the efficacy of our organic
institutions, and has even brought them to a
state of fearful transition. It tends, more and
more, to the Utopian folly of unregulated and
uncontrolled democracy — representative in
form, but simple and unmixed in practice. It
tends to exclude from the national councils,
our best and Avisest men; and to fill them Avith
a loAver race, unfit and untnistAyorthy — too
many of them ignorant and noisy, and too
many selfish, unscrupulous and profligate;
and, by its entire process, it tends to degrade
office, to shake the confidence of good and
Avise men in the value aud long life of the
Union, and to bring the general government
itself to the lOAvest ebb.
In addition to the foregoing considerations,
there is another peculiarly applicable to the
Senate, and that is, that it Avas created and
organized for the sole purpose of staying the
occasional tides of popular sentiment until
they may flow back or become harmless.
This will not be denied; and if it should be,
no other proofs can be required titan the ex
tracts already quoted. Hoav absurd, then,
must it be to assume that a Senator shall be
bound to submit to a thing Avhich he Avas ap
pointed to resist, and, if needful, overcome?
And Avliat form of instruction to him could be
generally more authentic thau tliat implied by
the conduct of thc more immediate represen
tatives of the people? The act of thia branch
may, prima i-.voie, be presumed to be thc off
spring of thc popular Avill. Eosolutions by
State Legislatures would certainlj' not he bet
ter evidence of it. Then, if a Senator ought
to vote as the Legislature qf his State may
tell him to vote, ho ought to vote a.5 the
House of Representatives, or that portion
of it from his OAvn State, had voted. —
But the office of the Senate is to check
thc other branch, and to prevent its acts from
becoming laws, Avhenever the Senate deems
them inexpedient. And to afford au as
surance that Senators would do this, tho con
stitution makes them comparatively independ
ent of popular sentiment, by extending their
terms to six years, and providing for their elec

tion by a select body of public men, instead of
the people themselves. The danger appre
hended Avas tiiat the members of the House of ,
Representatives would sometimes be sp
much under the influence of symathy AA'ith
excited masses of their constituents, or so
much afraid of their resentment, as to be un
safe legislators. And to guard against mis
chief from that source, a Senate Avas instituted,
and its members Avore required to be of a graA'c
and ripe age, and Avere placed by the consti
tution so remote from the contagion or fear of
popular ebuUtions as to be presumed free, to
a conserA-ative extent, from their influence.
But this object AA'ould be frustrated, and this
theory totally subverted by inculcating the
suicidal doctrine that Senators are bound, at
all times and under all circumstances, to ex
press, by their votes, the Avill of the Legisla
tures or of a majority of the people of their
respectiA-e States. And the Senator Avho will
ever do it, against his own clear convictions of
his duty to his country, will be a cowardly
recreant from his post, and a traitor to the
constitution. Nor cduld he, for his ease or
comfort, at such a crisis, resign liis seat with
out being a deserter from the very serA-ice
Avhich the SenatejAvas created to perform. To
execute the great pui^pose of his commission,
and exemplify the value of Senatorial fii-mness
and experience, it is, on such an occasion,
PEE-EAHNEKTLY his duty to stand at his post,
and, in defiance of allpersonal considerations,
fulfil his trust according to his OAvn judgement.
Aud he, Avho cannot, or Avill not do this, in
times of trial, is uiiAvorthy of a seat in the A-en-
erable body of consceipt fathers, and
Avould disgrace the Senatorial mantle.
But Avell settled public opinion should al-
Avays so far influence Senators as to induce
them to forbear the enactment of a laAV Ayhicli
the majority of the citizens of the LTnited
St.ates Avould deliberately and perseveriugly
disapprove. Public policy forbids all such
impracticable legislation. LaAA- — to be prac
tical and useful — must be ultimately accepta
ble to the people for Avhoin it is made.
lu opposing a measure also, a Senator, a.«
lAyell ns a Eprcsentative, should respectfully
I regard apparent public sentiment as an impor-
! tant fact entitled to more or less influence as
; an argument although to none as a command.
jBut, on all natioual questions, he should inan-
I ifest a natioual tone of thought, of principle,
[and of action. Elevating himself above the
clouds of vulgar ignorance and thc lightnings
.of local factions, he should, AA^itli national
eyes and comprehensive patriotism, survey tiie
j great aud magnificent panorama of tho Union,
1 and feel that it is all his country, and his cou-
stitueucy. And, Avhatevor he .sees to bo the
interest of the Avhole, he should resolutely en-
I deavor to accomplish, even at the expense of
: threatened political martyrdom at home. Ev-
jery such Statesman aa-IU, under all vicissitudes,
I enjoy his oavu approbation and be sustained by

ON POPULAR INSTRUCTIONS.

267

the respect of all good and Avise men. And,
if his heroic patriotism should doom him to a
temporary ostracism, time will exalt his name
to a proud eminence above the infectious at
mosphere in Avhicli temporising politicians,
Uke other ephemera of a day, flutter and die.
According to the true theory and animating
spirit of our American Constitution, such is a
model of an American Senator. SiiCh was
Daniel Webster — and such Avas Henry
Clay. But our modern Senates have been dignified
with only u foAv of that noble class. Too
many of them, intoxicated ivith the popular
breath, seem to have beeu uninspired by the
genius of their place. The progress of de
generacy has been so rapid, that, already, the
Senate — almost as much vulgarized as the
other Branch of Congress — has lost its dis
tinguished caste, and has nearly abandoned
the high position of guardian umpirage for
Avhich it Avas created. This decline to the
level of the popular body — as ominous as it is
humiliating — is the effect chiefly of an abuse
of the poAver of local majorities through the
direct and indirect agency of popular instruc
tions. And, without n speedy aud general
retrogade movement, the theory of the Consti
tution AA'ill be changed, and undigested De
mocracy, Avithout check, avUI rule and ruin.
The crisis is pregnant. We have been too
much ruled by politicians, Avhose idol is ephe
meral popularity of the most vulgar stamp —
foreign influence, iu both religion and politics,
is paralyzing all pure American influence —
and foreign policy is overrunning American
policy — -premature dogmas of free trade, invi
ting excessive importations of foreign products
to the discouragement of domestic capital and
enterprise, have already greatly curtailed our
circulation, crippled our resources, and involved
our country in a heavy debt — places of trust at
home and abroad, are filled Avith second and

third rate meu to the injury of our people and
the degradation of their national character —
the elective franchise is prostituted — the ballot
box is defiled and corrupted — political demoral
ization is consequently progressive in an alarm
ing degree. Factions, local and personal, re
ligious and political, distract our councils aud
disturb our peace — Nullification and Se
cession shake theii; Gordon heads in the face
of the Union — and names, and party pride,
andfiigitive non-essentials, if not soon rem
edied, may subjugate the band of true Ameri
can patriots, avIio, even yet, have the power
to save all that is in danger, and restore all
that is lost. Let them, forgetting the past,
and looking only at the present and the future,
magnanimously unite on a platform of vital
principles in Avhich all true-hearted Ameri
cans agree, and then, and not until then, the
work of rescue and reform avIU be hopefully
begun. The call for such an uniou, for the sake of
Liberty aud Union, is loud and imperative.
And, if it shall — before it Avill be too late —
rally, as one man, the friends of a common
cause, that cause AA'ill yet gloriously triumph
and long prevail. And whenever victory
shall croAvn its banners and emblazon their
folds Avith the "CROSS and the EAGLE"
on one side amd the "CONSTITUTION,
UNION and LIBERTY," on the other,
American independence Avill be redeemed, and
American institutions regenerated. And then
the Captain of the triumphant Christian Host,
that shall restore religion to its native purity,
simplicity and fraternal love, Avill be canon
ized as a better missionary aud greater re
former than Luther. And the leader of the
great Army of the Constitution, which shall
save and restore what the "Father of his
Country" fought for and established, will de
serve tho title and receive the rcAvard of a
second Washington.

PRELECTION.

A large body of the elite of the organized melitia of Kentucky having
encamped in Franklin county near the capital, for the purpose of disci-
pUne and in commemoration of our National Anniversary — Mr. Robert
son, nine days before the 4th of July, was invited to address the as
semblage of at least 20,000 persons, male and female, old and yourg,
citizens and soldiers — and the following address was accordingly de
livered : —

Camp Madison, Franklin County, Ky., .luly 5, 1843.
To the Hon. George Robertson:
Sir — By, a resolution adopted at a meeting of the officers and
troops assembled at Camp Madison, the undersigned were appointed a
committee to expiess to you their warm thanks for the able and eloquent
address delivered to them by you on our National Anniversary, and at
the same time respectfully to request from you a copy for publication.
Wc have the honor to be resnectfully, your obedient servants,
.TOHN MILLER. Col.
LUCIUS DESHA, Lt. Col.
C. M. CLAY, Col. Fayette Legion.
.1. T. PRATT, Adj't. General.
T. L. CALDWELL, Surgeon Gen.

Camp Maiuson, .5th July, 1843.
Gentlemen : — In answer to your polite and flattering communication
requesting for publication a copy of the address delivered yesterday, at
the instance and in behalf of yourselves and those you represent, I
cheerfully consent to the proposed publication, and will, in a day or two,
furnish you the desired copy. Yours respectfully,
G. ROBERTSON.

ADDRESS.

Once more, my countrymen, we aru permit
ted gratefully to behold the anniversary sun
of American Independence ; once more we
salute the star-spangled banner, and rejoice
that the cherished emblem of our union and
liberty, spotless and peerless as ever, still
waves over a nation now, as in time past, sig
nally blessed by a benignant Providence ;
once more, on earth, the old and the youii^', of
all classes, forgetting the distinctions of name,
of fortune, and of faith, have assembled, un
der the canopy of a bright sky. to embalm
the memoi-y of '¦ '76," to remember the tribu
lations and triumphs of our pilgrim fathers
aud mothers, and to thank God that Ave are
yet a free and united people.
At the call of those trumpets and those
drums — with short notice, and rather as a "mi
nute-man" — the orgau of that beautiful and
gallant band of citizen soldiers — I appear be
fore you on the forlorn hope of suggesting, for
your contemplations, something befitfing such
an assemblage, ou such a day. Aud, although
the accustomed and more comprehensive to
pics, however trite, can never be unacceptable
to those ¦who delight to commemorate " the
4th of July," yet we have thought tljat a sub
ject which, whilst it may be less directly ap
plicable, is more local and novel, might be
equally appropriate and more generally inter
esting. The birth,, progress, and condition of
our own Commonwealth, as an offspring of
our glorious Revolution and a member of our
blessed Union, are intimately associated Avith
all that belongs to the becoming celebration of
this day, and beautifully illustrate the bene
ficence of the principles of human right and
civil government which have consecrated it as
a national jubilee. Our theme, is KEN
TUCKY.
We haA-e not come here to recite the annals
of our State. All this beauty, and chivalry,
and intelligence, and piety, Avith religious
rites and martial music and display, announce
a purpose far more comprehensive and im
portant. Feeling, as we this day must, that
we are standing on a narroAV isthmus between
the great oceans of the eventful past and of
the still more eventful future, we instinctively
glance backward on the oue and forward on
the other, and embrace, in the transient vi
sion, a panorama of th6 pregnant present.
Such contemplations are peculiarly appropri
ate and affecting ; and, when intelligent,
must be profitable. Mixed with joy and sor
row — hope and fear — gratitude and regret —
complacency and humiliation — they must
help to exalt our minds and purify our hearts,
awaken us to a proper sense of our duties and
responsibilities, and, by inspiring more virtu

ous emotions and resolutions, make us wiser
as individuals, and as citizens more useful.
A bird's eye glance at Kentucky — physical,
moral, and political — past, present, and pro
spective — may, and ought to, produce all those
valuable results, as fruits of this day's com
memoration. And if, in any degree, such
should be the consequence, our assembling
-will have been neither barren nor vain ; and' ,
it will be good for us all that we were here.
Time builds on the ruins itself has made. It
destroys to renew and desolates to improve.
A TTise and benevolent Providence has thus
marked its progress in the moral, as well
as in the physical world. The tide which
has borne past generations to the ocean of
eternity, is hastening to the same doom the
living mass now gliding do-wnward to that
shoi-elesK and unfathomed reservoir. But
whilst the current, in its onward flow, sweeps
away all rfiat should perish, like the Nile, it
refreshes every desert and fructifies every wild
through Avhich il rolls ; and, fertilizing one
land with the spoils of another, it deposits in
a succeeding age the best seeds matured by
the toil'of ages gone before. Asia has thu.^
been made tributary to Africa and to the
younger Europe, ancient lo modern times,
and the middle ages to ihe nioi'e hallowed
days in which Ave ourselves live. One gene
ration dies that another may live to take its
place. The desolation of one country has
been thc renovation of another — the downfall
of one system has been the ultimate establish
ment of a better — and the ruin of nations has
been the birth or regeneration of others both
wiser and happier. The stream of moral
light, with a western destination from tha be
ginning, has, in all its meanderings, increased
its volume, until, swollen by the contributions
and enriched by the gleamings of ages, it has
poured its flood on the cis-atlantic world.
America is a living monument of these con
soling truths. When, within mau's memoryi
it Avas blessed with the first footsteps of mo
dern civilization, the germs of inductive phi
losophy, true liberty, and pure religion, sifted
from the chaft' and rectified by the e.xperionco
of ages, were imported by our pilgrim ancest
ors to a land which seems to have been pre
pared by Providence for their successful de
velopment in the proper season for as.suring to
mankind an exalted destiny, at lant, on earth.
In less than 95Q years from tho nr-^t settle
ments at Jamestown and Plymouth, the tem
perate zone of North America already exhibits
many signs that it is the promised land of
civil liberty, and that the Anglo-Americans
are the chosen depositories of principles and

970

ANJSnVERSARY ADDRESS

institutions destined to liberate and exalt the
human race.
But our owii Kentucky is, itself alone, a
colossal tower of God's benevolence and time's
beneficence to man. Within three score years
and ten — ^tlie short period allotted for all the
¦works and enjoyments of a human being here
below — this fair CommonAvealth, now so bles
sed and distinguished, was a gloomy wilder
ness, the abode of wild beasts, and the hunt
ing ground and battle field of the still more
ferocious red men of the west. Its fertile soil
was unfurrowed by the plow, its gigantic for
est untouched by the axe of civilized man.
Within all its limits wild nature's solitude
was unblessed by the voice of reason, religion
or laAV — uncheered by one spire to Heaven —
by one hearth of domestic charity, or by the
curling smoke of a solitary cottage. But, in
the fullness of time, the red man was to be
supplanted by the white — the scalping knife
by the sword of Justice — the savage war ciy
by the church bells of christian temples — the
panther and the buffaloe by domestic herds —
and the wilderness was soon to bloom with all
the beauty and fragrance of " the rose of Sha
ron and lily of the valley."
In 1774, the tide of civilization, moving
westAvard from thc Atlantic, approached the
AUeghanies — the Anglo-Saxon race, destined
to conquer and enlighten the earth, crossed the
mountain barrier — and Finley, and Boone, and
Harrod, and Logan, and Knox, and Whitley,
and Kenton, hunters of Kentucky — came, and
conquered. They brought with them the rifle,
the axe, the plough, ancl THE BIBLE. And,
thus armed, this vanguard of their race led
the forlorn hope of western civilization to vic
tory and to fortune. The Indians fell by their
rifles, the forest by their axes, and savage idols
tumbled before God's holy Book — until the
current of population, rolling on, wave by
wave in rapid succession, soon made Ken
tucky a rich and powerful State — the first
born of the Union of 1788, and now, even
now, unsurpassed by physical blessings and
moral power— already the mother of younger
Commonwealths in the great Valley of the
Mississippi, and, in many respects, a fit ex
emplar to the nations of the Avhole earth.
The birth aud legal maturity of such a Com;
mon-wealth are surely worthy of public com
memoration. As Kentuckians, we should
make periodical offerings of thanksgivings to
God and of gratitude to our pioneer fathers
and mothers for our enviable allotments in this
age of light and in this land of liberty, plenty,
and hope. Every .nation leaves, on its patli-
Avay behind, some lasting memorial Avliich it
should never forget or neglect — some green
spots in the waste of the past, around which
memory lingers Avith ennobling emotions.
And to commemorate, with grateful hearts,
great national events either glorious or bene
ficent, is a double offering ou the altar of pa
triotism and the altar of God. FeAV incidents
in the history of nations liav^ been more use
ful or can be more memorable than that of the
first settlement of Kentucky by our own race ;

few have been more eventful — and not one ex
hibits more of romance or of those qualities
and deeds deemed chivalrous and noble among
men. And the adoptiou of Kentucky's or
ganic law and her admission into the federo-
national union ot Anglo-American States, con
stitute an appropriate episode to the thrilling
epic of her Herculean infancy. Our own in
terests, duty to the generations that shall suc
ceed us, and respect for the memory of our
illustrious predecessors — call Kentuckians,
one and all, to the consecration of an occa
sional day or days to the becoming celebration
of those two most interesting events in our
local history. And let these Kentuckiads —
like the saturnalia of the Romans, the Pass
over of the Jews, and the Olympiads of the
Greeks — be sacred seasons, when all of every
rank and denomination, animated by the same
pervading sentiments and communing as one
family, may refresh their patriotism, revive
their civic virtues, and improve their social
graces .
This, ray countrymen, is a monumental
land. Modern, as it is, in authentic history,
it is covered with monuments ef a remote an
tiquity — memorials, not only of successive
generations of long extinct vegetables and an
imals whose transformed relics fill aud fertil
ize the earth benea!th us, but also of a race or
races of men as far advanced perhaps in
knowledge and thc arts of social life as their
contemporaries of Europe, Asia, or Africa ;
but of whose origiu, history, or doom, no tra
dition remains. It contains monuments also
of more recent races less civilized, and by
whom the more ancient and enlightened in-
habitanls may have been exterminated or ab
sorbed, as Southern Europe once was, and
perhaps about the same time, by wander
ing tribes of Northern barbarians. By its
central position as the heart of North Amer
ica — its stupendous cliffs and labyrinths — its
genial climate — its unsurpassed fertUity — its
physical beauty and magnificence — its insti
tutions, its population, and its deeds — God
has made it an everlasting monument as en
during as its own mountains and far more in
teresting than the Towers and Pyramids of
the old world. And may we, of this genera
tion, leave behind us memorials worthy of our
country and our age.
Sites of large cities of the Cyclopean style ;
ruins of gigantic fortifications, temples, and
cemeteries — perfect petrifactions of human be
ings of the Caucasian form, ivith the accus
tomed habiliments of the civilized dead — all
disinterred after a sleep of many centuries —
prove, beyond dispute, that our continent was
once tho theatre of a crowded population re
sembling, and probably equalling, the most
civilized of their cotemporaries of the trans
atlantic Avorld. When and whence those
buried and forgotten nations came to America
Ave have no clue for determining -with historic
certainty. If, as may be probable, any of
them -si'ere superior to !,he Itzacans — who emi
grating probably from the Caspian sea, built
Mexico and Cusco — they may have been Gar-

Olf I'HE SETTtEMENT Oif liEifTUCKt.

271

thagenians, Phcenicians, Phocians, or Etrus"
cans — all of the Pelasgian race — or probably
Danes ; all of which nations navigated the
the Atlantic Ocean, and the last of whom
had planted settlements in the New England
States at least twelve centuries ago. Modern
geology, which discloses the history of ihe
earth and vegetation and irrational animals
for thoussnds of years, is dumb as to our race,
of whom there is no fossil fragment in any of
the stratifications of the globe. Nor, ¦whilst
it proves,, beyond question, that this whole
continent was once covered by an ocean of
water, does it intimate the origin, character,
or destiny of the more enlightened people who
lived on it after its emergence and long before
the discovery of it by Cabot.
Their tale is untold. Were it known, it
would doubtless be interesting and eventful.
Ages ago, Kentucky may have been the busy
theatie of incidents and catastrophes in the
drama of civil and social life, of which a He
siod, a Homer, and a Virgil might have sung
with immortal melody It is said that, -when
Alexander saw the hillocks supposed to eon-
tain the bones of Achillis and Patroclus, he
'sighed because he too had not, like them, a
Homer to canonise his name.
May not Kentucky, centuries back, have
had its AchiUes and Patroclus, and Hector,
and Helen, and Troy — its Marathon, its
Athens, its Delghi, and its Parnassus — its
Theseus, its Solon, its Socrates, its Epami-
nondas, its Themistocles, its Demosthenes — its
wars, its friendships, its loves, and its human
woes ? But of these no Homer sang, and all
is now desolation aud oblivion. Whilst we
ti-ead on the ruins of generations unknown,
all that historj; tells of Kentucky's past may
be embraced in the narro-w span of one cen
tury. Long prior to the immigration of our an
cestors, Kentucky had been depopulated, and,
— covered with majestic fotests and luxuriant
cane, — had become the hunting ground of va
rious tribes of savages and the theatre of
bloody conflicts between them. And, from
those circumstances, it derived its name —
Kantuckee, in Indian dialect being, " the
dark and bloody ground." Though embraced
constructively -within the chartered limits of
Virginia under James's grant of 1606, yet it
was also, claimed by France — both England
and France claiming a great portion of North
America by alleged prior discovei-y, AVhich,
according to the conventional layv of Chris
tendom, gave to a Christian nation dominion
over any unchristian country which it first dis
covered. These conflicting claims of Eng
land and France not being adjusted until the
treaty of 1763, the uncertainty of title, the re
moteness of the territory, and the perils and
privations incident to a colonization of it re
tarded its exploration and settlement until
after that peace had been concluded. Some
wandering Frenchmen, as Avell as Virginians,
had eccasionally had earlier glimpses of it,
and made glowing reports of its fertility and
beauty. But it remained unappropriated by

the hand of civilization until the year 1767,
when GEORGE WASHINGTON, afterwards
commander-in chief and President of the
United States, visited the Eastern portion of
it, and under the pioclamation of '63, made
t^wo surveys, chietiy Avithin its limits, on
Sandy, in the name of John Fry, the Colonel
of the regiment, of Avhich, in the war of '53,
he himself Avas Lieut. Colonel. Tliese sur
veys, like everything else attempted by Wash
ington, were perfectly made and reported, so
that every line and corner have been easily
identified. They were the first surveys ever
made ¦within the limits of our present state- —
and thus Washington Avas oue of the first
" hunters of Kentucky." Finley and others,
of North Carolina, having in the same year of
1767, explored the best northern portions of
the territory, and returned with alluring ac
counts, Daniel Bone of the same state, the
Nimrod of the day, was induced to come and
look at it for himself iu 1769. He was so
charmed with the beauty and sublimity of its
landscape, the melody and fragrance of its
forests, and the variety and abundance of its
wild game, as to linger in its solitudes, gen
erally alone, for two years. In 1770, in es
caping from Indians who killed one of his
brothers by his side on Boone's creek in the
E resent eounty of Clarke, he lost his hunting
nife, Avhich Avas found in 1822, and is now in
the historic cabinet at Washington city. In
1773-4, several surveys were made near " the
falls," and on Elkhorn aud the Kentucky
river under the proclamation of '63. And, in
the fall of the year 1774, James Harrod of
MonoMgehala, with about 60 others who were
in " the battle point," built some cabins
where Harrodsburgh now stands, and returned
home with the intention of removing to them,
which sorpe of them did in the fall of 1775.
Boone had come with his family as far as
Holstein, was at Wataga in March 1775, and
having there assisted in negotiating the con
tract whereby the Cherokees, who claimed all
the tenitory south of the Kentucky river, sold
to Colonel Henderson of North Carolina, their
title thereto, he Avas employed by the pur
chaser to open the first Kentucky road — (from
Cumberland gap to that river,) which being
soon completed by blazing trees and calling
the designated route a trace, he commenced,
about the middle of April, 1775, the erection
of a log fortification on the southern bank of
tho river, at a place since called Boonsbo-
rough, and yvhich was finished in June of the
same year. Thus it is almost certain that,
whilst the first revolutionary guns were thun
dering on the 19th of April at Lexington,
Massachusetts, in the cause of National In
dependence, the pioneer axe was resounding
among |the cliffs oi' Kentucky in the Avork of
rearing' the first modern fortress for founding
and guarding civilization in this Hesperian
wilderness. The fortress being completed,
Boone removed to it with his Avife and daught
ers early in September, 1775, — These were the
first civilized females who ventured to settle
'in Kentucky. Without the co-operation of the

272

AlTNlVEilSARY ADDRESS

"entler sex, the settlement Avould never have
been made. Woman was the guardian angel
of the wild and perilous forest. And never,
on earth, was the poet's conception of her
value rpore perfectly exemplified — for it was
here truly seen and felt that —
" The world was sad, the garden was a wild,
"And man the Hermit sighed, till woman
smiled."
The anniversary of the first advent to Ken"
tucky of Christian woman, by Avhom our
State has since been so signally adorned and
blessed, should itself he commemorated -with
grateful hearts. She Avas the tutelar genius
of our settlements — she has been the foster
mother of the domestic virtues Avhich have
hallowed our hearths and graced our society
— and she it was that fired the heart of Ken
tucky patriotism and nerved the arm of Ken
tucky chivalry.
In 1776 many improvements were made
preparatory to ultimate residence, and of such
a character as merely to identify the selected
spots as those intended for occupancy and
cultivation. — Until the year 1777 all this cis-
montanian territory of Virginia was embraced
in the county of Fincastle, and was virtually
in a state of nature, without any local juris
prudence or organized administration of jus
tice. But the county of Kentucky, cotermin
ous with our state, havinf: been established
about the close of the year 1'777 , the new county
was organized and a court of Quarter Sessions
was opened in March, at Harrodsburgh. And
of that Kentucky court of justice, Levi Todd
was the first clerk.
As the Kevolutiouary war ¦was raging, and
no law had been passed for the appropriation
of land on this side of the mountains, the set
tlement of this country did not increase very
rapidly before the year 1779, when " the land
law" was enacted. Havi,ng ahvays asserted
full dominion over all the territory Avithin her
chartered limits, conceding to the savage oc
cupants the usufruct merely, Virginia declared
illegal and void the purchase made by Col.
Henderson, and another also by Col. Donald
son from the Six Nations, of the territory
north of the Kentucky river, all of which was
claimed by those tribes. But. considering
those purchases valid for the purpose of di
vesting the aboriginal title, our parent state
claimed the absolute right to the entire terri
tory as a trust resulting to her from the ille
gal contracts, which were deemed A-oid so far
only as they purported to vest beneficial in
terests in .the individual purchasers who had
made contracts with Indians in violation of a
statute prohibiting all such purchases. Thus
claiming the use of the land, as well as juris
diction over it, the Legislature, in 1779, enact
ed a statute, commonly called " the land law,"
authorizing, in prescribed modes, individual
appropriations of land in Kentucky, This
beneficent enactment brought to the country,
during the fall and winter of that year, an
unexampled tide of imigiants, who, exchan
ging all the comforts of their native society

and homes for settlements for themselves and
children here, came like pilgrims to a wilder
ness to be made secure by their arms and habi
table by the, toil of their lives. 1'hrough pri
vations incredible and perils thick, thousands
of men, -women, and children, came in succes
sive caravans forming con-tinuous streams of
human beings, horses, cattle, and other domes
tic animals, all moving onward along a lonely
and houseless path to a wild and cheerless
land. Cast your eyes back on that long pro
cession of missionaries in the cause of civili
zation. Behold the men on foot, -with their
trusty guns on their shoulder, driving stock
and leading packhorses — and the women,
some walkingwith pails on their heads, others
riding with children in their laps and other
children swung in baskets on horses fastened
to the tails of others going before. See them
encamped at night expecting to be massacred
by Indians — behold them in the month of
December, in that ever memorable season of un
precedented cold called "the hard winter,"
travelling two or three miles a day, frequently
in danger of being frozen or killed by the
falling of horses on the icy and almost 'im
passible trace, and subsisting only on stinted
allowances of stale bread and meat; but now,
lastly, look at them at the destined fort, per
haps on the eve ofmeny Christmas — when met
by the hearty welcome of friends who had come
before and cheered with fresh buffalo meat
and parched corn — they rejoice at their deliv
erance, and resolve to be contented with their
lots. This is no vision of the imagination. It is
but an imperfect description of the pilgrimage
of my own father and mother, and of many
others, who settled in Kentucky in December,
1779. When, resting from their journey, they
looked at the cheerless home of their choice,
and remembered, Avith sighs, the kiudred and
comforts left behind in the sunny land of their
youth — they were yet consoled by trust inthe
martyr's Gpd, and animated by the rainbow of
hope which gilded the dark firmament lower
ing over the unchincked cabins Avhich scarcely
sheltered their heads. Blest be the memory o'f
the patriarchal band; blest forever be the
land ennobled by their virtues and consecrated
by their blood; and blest be their children and
their chUdren's children, both in this life and
in that to come.
Tho land law provided — that all persons
who had settled themselves or others in the
country in good faith antecedenUy to the 1st
of January, 1778, should be entitled to 400
acres includins- each settlement, at the price of
|2.50 for each hundred acres; that all who, in
like manner, had settled in viUages should be
entitled, collectively, to640 acresfortheirlown,
and individuaUy to 400 acres each, at the
same price of $2.50 for each hundred -icres;
that such as had settied since the 1st of Janu
ary, 1778, should be entitled to a pre-emption
of 400 acres, including each settlement on
paying for each hundred acres £4'.) in paper
money, then equal to about $40; that such- as
had, before the let of January, 1778, chosen

ON THB SETTLEMEMT OF KENTUCKY.

373

any vacant lamjApai'kad it or built a house or
made any other linproveiuent on it, should be
entitled, for tho same price £40 per hundred,
to a pre-emptiofi of i;000 acres for each im
provement ; that, to every settiement right a
pre-emptive right to an additional 1,000 acres,'
at the govci'nment price of £40 in paper money
for each hundred acres, should be attached so
as to adjoin the settlement survey ; and that,
independently of any pre-emption claim, any
person might procure a treasury Avarrant for
any quantity at the said State price, to be lo
cated by his oAvn direction.
Settlement and village claims were to be ad
justed by commissioners appointed by Virginia,
whoso first session AVas on the 13th of October,
1779, at Logan's Station, near the present vil
lage of Stanford, and whose first certificate of
title, dated the next day, ¦was granted to Isaac
Shelby, (the first Governsr of Kentucky) for a
settlement and pre-emption of 1,400 acres, "for
raising corn in 1776" iieartheKnob Lick, about
five miles south of Danville, where he after
wards resided and died.
— The settlement of Kentucky was not the only
aim of the land law of l779. Unfortunately
for the repese of the first settlers. Revenue was
Virginia's ¦ principal obj^ect. She issued war-'.
rants for more land than she had, aud the best
lands AVere covered by successive appropria
tions. This was the fault of the law, -which
not only permitted each claimant to make his
own entry, but required- each location to be
made Avith so much precision as to enable sub
sequent locators to apprepriate, without colli
sion, the adjacent residuum. This last provi
sion was judicially construed as requiring no
toriety, actual or potential, in the locative calls,
an identity between tho entry, survey, and pa
tent. Unluckily, the courts decided also that
an older grantee might be compelled, by a court
of equity, to relinquish his legal title to a ju
nior claimant under the better enti-y ; and that
a subsequent locator, Avhose entry was con
structively certain and good, should be prefer
red to a prior locator whose entry did not pos
sess, at its date, the prescribed notoriety or
requisite identity, eveu though the subsequent
appropriator knew, or might by reasonable en
quiry, havo known, when he made his entry,
fliat he was encroaching on a prior appropri
ation. These anomalous rules and doctrines ope
rated uriju-stly to individuals and injuriously
lo the prosperity and peace of Kentucky.
They produced vexatious and protracted, liti
gation involving, for many years, most of the
original tities— arid' that litigation generally re
sulted to the loss, and often the ruin of the
earlier appropriators, who had neither craft nor
the foresight necessary for eludinattiie;""--'^ "-*
woven by the avaricious orunjj-
cunning lawyers, and metai
Many, perhaps most, of the
AA'hd rescued the counti-y, wsi
voracious speculators. _,..^
Boone was one of the most, conspicuous ol
these victims- Of *^ many tiacts of rich land
for whieh he had obtained tides, it is not cer-
35

al net
^ators,
'courts. guard
ated by

tainly known that he was permitted to hold one
foot. Like Moses he lecl the pilgrim army —
and, liko him, he saw but never enjoyed the
promised land.
The Indian tribes, who had claimed the
territory as their own, denying the validity of
the contracts purijorting to cede their titles to
Henderson and Donaldson, and many other
tribes — of which thef Shawanees wera the
most ferocious — claiming it as common hunt
ing ground— these combined savages deter
mined to prevent the occupation of it by " the
long knife," as they characterized the white
men ; and by persevering massacres of the
early immigrants on their way to the country
and after others had reached it, they endea
vored to nip the settlement in its bud. This
savage crusade against civilization Avas prose
cuted in the settlements of Kentucky until
after Clark's campaign in 1782, 'and on the
borders of the Ohio, until Wayne's treaty at
Greenville, in 1795. Prior to the treaty of In
dependence in 1783,_ neither the confederation
nor any of the States contiibuted any efficient
aid to the Spartan band of issolated pioneers
who encountered alone all the horrors of ex
terminating war with numerous tribes of sa
vages. In that bloody straggle even the
children were soldiers and the women all he
roines. Tie husband, with his rifle, had to
guard his wife whilst she milked their cow ;
and the lonely mother Avith her children often
defended their cabin against unsparing as
saults at night. Day after day, and night after
night, families were surprised and slaughtered
— companies of immigrants massacred — sta
tions attacked — and bloody battles fought—
and captives taken and either rescued, or
butchered, or burned at the stake.
Tho horrid massacres at Martin's and Ken-
cheloe's Station.s — 'the defeated camps,' where
alarge company of men, women, and children,
were nearly all slaughtered in their tents on the
wilderness trace, in 1781, and Avhere, inthe
darkness and chilling rain to Avhich a fugi
tive mother had escaped undressed, a child
was born whom many of us knew in man
hood's prime : — the assault on the cabin of
Mrs. Woods, near the Crab Orchard, in 1782
— the bloody rencounter between an Indian
who had forced an entrance, and her negro
man — the attempts of other Indiana to cut
down her door — their repulse by her pointing
through a crack a gun barrel used as a poker,
and her finally cutting off the Indian's head
with a broadax, whilst he and her slave Avere
lying together side by side fighting on the
floor : — the capture of Miss Calloway and
Miss Boone, at Boonsborough, 1776— -the pur
suit by their parents, one of whom (Boone)
subscribed an oath that he would rescue the
children,, if alive, or die in the effort— the in
slinctiye sagacity of the captives in leaving
shreds of their handkerchiefs and dresses as
signals of their course and of the encouraging
fact that they still lived — the anxiety of
the pursuing fathers when, surveying- the
camp of the sleeping captors, they beheld
their daughters lying arm in arm — the solici-

274

ANNIVERSARY ADDRESS

tude of those children when, shortly afterwards
they saw their fathers themselves hopeless
prisoners, tied to trees, facing tomahawks up
lifted to slay them — and the mutual joy of pa
rents , and children when, at that awful mo
ment, a fire from friends who had followed in
the pursuit disp'ersed the savages and rescued
the captives who Avere soon in each other's
arms weeping with pious joy for their provi
dential .deliverance : — The capture of -Simon
Kenton, and his rescue from' the fire' of the
sake by the renegade, Simon Girty, Avho, hat
ing his race, had become a leader of Indians,
and though more cruel than any of them, yet,
in this instance, illustrated the triumphant
strength of schoolboy associations ; for he and
Kenton had played together Avhen they were
boys, and, recognizing the familiar face just
as the incendiary was igniting the funeral pile
of faggots, he instinctively cried stop ! — and
the bloody hand was stayed : — ^The attack by
more than one hundred Indians, ^ on Capt.
Hubbal's boat as it descended tho Ohio with
his family — his chivalrous defence until the
blood gushed over the tops of his boots, and
his successful resistance CA-eii then, and final
victory by repelling the assailants with billets
of wood until, coming in sight of Lime
stone, they ceased their efforts to board with
their canoes and paddled off, leaving the no
ble immigrant and his blood-stained boat to
float alone, a monument of valor never Sur
passed : — The many captures of women and
children; the burning of infants or thc crushing
of their heads against trees in thc presence of
their mothers — the detention in savage bond
age of men, women, and children for years—
and the burning of many at the stake, orna
mented with the scalps of their friends : —
These Avere some of the scenes of peril and
blood which characterized the first settlement
of Kentucky by our race.
Battles too Avere fought as gloriously as
those of Thermopylae and the Grampian Hills.
Who does not remember, with honest pride,
the traditions of the heroic defence Of Boons-
borough, and Harrodsburgh, and of Logan's
andBryan's Station ? And where is theheait
that does not glow Avith admiration at the re
cital of the romantic incidents which signal
ized these and many others as memorable oc
casions in our short but eventful history ?
One only may illustrate the spirit of all of
them. Nearly 400 Indians, lying concealed
around Logan's Station, surprised aad shot
down one of its few defenders who, at the
dawn of day, had passed the puncheon stock
ade in quest of the caws- — and then, Avith sa
vage yells, they attacked the fort ; while
pouring their rifle balls Uke hail upon the
humble fortress, the wounded man, between
two fires, raised himself on his hands and
knees, but, unable to stand, he could not es
cape. Col. Benjamin Logan, observing this
imploring scene, exclaimed " who will go and
help our wounded friend ?" Several made
the attempt, but were driven back by the ene
my's balls ; at last Logan himself nobly ran
to his relief and, lifting him on his shoulders,

carried him safely in untouched by one of the
hundreds of bullets aimed at their, heids.
, '¦ Estill's defeat," near Mountsterling, on
the 20th of March, 178?, was as glorious as
disastrous. More skill. and courage were ne
ver displayed on a battle field than Capt. Es
till and his associates that day exhibited and
sealed with the blood of all and the lives of
the leader and many of his men. At the time
of that ever memorable battle, " Estill's. Sta
tion" was occupied anij to be defended only
by women and children, and by my own father,
who was then lying there disabled, by several
wounds received from Indians a few days be
fore. And in "the Blue Lick defeat," August the
20th, 1782, the cormorant of death fed greedily
on the flower of the first settlement. On that
darkest of their gloomy days every .settler lost
afriend, and nearly e/eryfamilyaprop. And,
on that; bloody field, the noble Cols. Todd
and Trigg, the chivalrous Capt. Harlani and
the gallant son of Boone, lay undistinguished
among the promiscuous slain, all soon man
gled by devouring wolves and vultures so as
not to be recognized by their friends, who three
days after the battle, buried the fragments. A
feAV of their crrfmbling bones, since coUected
by their counti-ymen, now lie exposed t» the
elements, in a confused pile, on the summit of
the bleak and roeky plain where the heroes
fell. We cannot now imagine the grief and
despondence Avith which the mournful intel
ligence of that day's catastrophe covered the
land. But the survivors, though wofuUy be
reaved, Ayere not to be. discouraged or dismay
ed. They were resolved never to look back or
faulter in their first and last resolve to con
quer the wilderness or die in tha attempt.
Israel's God stood by and sustained the noble
but forlorn band — for their cause was his. On
the long roll of that day's reported slain were
the names of a few who had, in fact, been cap
tured and, after surviving the ordeal of the
gauntlet, had been permitted to live as cap
tives. Among, these was an excellent husband
and father, who with eleven other captives,
had been takeii by a tribe painted black as
the signal of torture and death te all. The
night after the battie, these twelve prisoners
wele stripped and placed in a line on a log —
he to whom we have specially alluded being
at one extreraitv of the devoted row. The
cruel captors, then beginning at the other
end, slaughtered eleven,'_one by one; but when
they» came to the only survivor, though they
raised him up also and drew their bloody
knives to strike under each uplifted arm, they
paused, and after a long pow--wow, spared his
life — w^hy. he never knew. For about a year
none of hisjifriends, excepting his faithful
wife, doubte^li^s death. She, hoping against
i-easonafj stiJJ§iii6isted that he lived and
would^faetaim tpher. Wboed by another,
she, froMfciSto time, postponed the nuptials,
declariijpiHat she could not divest herself of
the belief that her husband still lived. Her
expotsulating friends finally succeeding in
Uheir efforts to stifle her affectionate instinct.

ON THE SETTLEMENT OF KENTUCKY

275

she reluctantly yielded, and the nuptial day
was fixed. But, just ' before it dawned, the
crack of a rifle was. heard uear her lonely
cabin — at the familiar sound, she leaped out,
like a liberated fawn, ejaculating as she
sprang — " that's John's gun 1" ¦ It was John's
gun sure enough ; and, in an instant, she Avas
once more, in her lost husband's arms. But,
nine years afterwards, that same husband fell
in " St. Clair's defeat" — 'and the same disap
pointed, but persevering, lover renewed his
suit — and at last the widow became his wife.
The sceUe of those romantic incidents Avas
within gunshot of my natal homestead ; and
with that noble wife and matroU, I was my
self AveU acquainted.
Almost every spot of earth within the lim
its of our State has been consecrated by some
romantic adventure Or personal tragedy ; and
were I to speak of these remarkable incidents
of our early history until this day's setting
sun, I could scai'cely have begun the moving
tale of Kentucky's' first settlement by those
whose blood still flows through our own heaits.
The few facts we have briefly recited are but
samples of countless events equally interesting
and, far above the power of adequate descrip-
t tion by the pen or tongue of man.
But peril, privation and death, could neither
extirpate the settlement nor prevent its pro
gressive increase. ,And, in 1783, two auspi
cious events occurred — the treaty of peace with
England, and the subdivisiori of Kentucky
county into the counties of Lincoln, Fayette,
and Jfefferson, and, the organization of a Dis
trict courts with criminal as well a civil juris
diction. Of that first local court of general
jurisdiction, Ji/hn Floyd and Samuel McDow
ell were the first. Judges, John May the first
Clerk, and Walker Daniel the first prosecut
ing attorney. Its first session was at Harrods
burgh, March 3rd, 17^3 ; but it was perma
nently fixed at Danville by a contract with the
Clerk and Attorney General, the proprietors
of the land, who agreed lo erect, of logs, the
public buildings.
As early as 1784, tho population had become
so confident of its capacity to govern and de
fend itself, as to desire a separation from Vir
ginia ; and in that year , a Convention was
held at Danville preparatory to the establish
ment of an independent government. But a
disagreement with the parent State as to the
terms of separation, frustrated the object of
that and other successive conventions, and
Virginia having, in 1789, assented on pre
scribed terms ratified by a Convention at Dan-
viUe in 1790, Congress passed an act, Febru
ary the 4th, 1791, admitting- Kentucky into
Union prospectively, on the first of June,
1792. And, on the 19th of AprU, 1792— tiie
anniversary of the battle of Lexington — the
first Constitution of Kentucky was adopted.
Isaac Shelby, the first Governor, arrived in
Lexington (the teinporary seat of govemment)
June the 4th, 1 792, and a quorum of the Legis
lature, there convened on tho 5th, having
elected Alexander S. Bull|it President of the
Senate, and Robert BrCCkrinridge Speaker of

the House of Representatives, received the
first Executive communication, read to them
iu joint meeting by the Governor in person, in
imitation of the practice of Washington, as
President of the United States.
It Avas porhaps lucky that Kentucky was
kept in a state of pupilage and dependepce
until after the adoption of the Federal Con
stitution. Her OAVU constitution probably was
much better than it would have been had she
adopted one before 1788. ', Her detached posi
tion — the non-surrender of the Northwestern
posts, as stipuluted by the treaty of 1783, in
consequence of which the Indians were insti
gated to persevering hostilities — the occlu
sion by Spain of the Mississippi river below
the 31st degree of noth latitude — and a general,
but unjust suspicion, that the federal govern
ment was inattentive, perhaps indifferent to
Westei n interests — had generated a spirit of
distrust and disaffection which might possibly
havebeen exasperated to the extremityof final
alienation had Kentucky, as an independent
state, possessed the power to act as she might
have willed, before she was.-covered with the
panoply of the National Union of 1/88. But
rescued, either by Virginia or her own good
sense, from the vortex of self-independence or
foreign alliance, she now stands a Doric col
umn in the American temple of Union. Al
though, in fact, an integral member of the
Union not quite as soon as Vermont.yet, as the
act of Congress prospectively admitted her,
Avithout qualification or restriction except ?s
to time, AVas the first of the kind enacted by
Congress, we claim for our own native Com
monwealth the honor of primogeniture. And
may she long continue to'enjoy and deserve
her birthright, and be the last to soil or
surrender the blessed national motto of her
own flag— "UNITED, WE STAND— DI
VIDED, WE FALL."
The adoption of a political constitution, and
such a constitution in the wilds of Kentucky
by the free will of a majority of its free inhab
itants, was a novel and interesting spectacle.
The first constitution — the production princi
pally of George Nicholas — was a very good
one — certainly equal, if not superior, to any
other state Constitution then existing. As it
provided for another convention at the end of
seven years, a new constitution was adopted
in 1799. Both constitutions were alike— in
outline the same. T^he ,last is more popular
in its'provision for the election of Governor,
and less so in the naodc of selecting sheriffs
and clerks ; and the first secured more StabU-
ityto the judiciary by prohibiting, like the
federal constitution, any reduction of salary
during th'e tenure of judicial ofSce. There, may
be reason to doubt whether, altogether the last
is better than the first. But the fundamental
law of Kentucky, as it is, recognizes the car
dinal principles ofthe declaration of indepeujl-
ence of 1776— distributes all political power
among tliiee co-ordinate departments of re
presentative magistracy — divides the legisla
tive council;, in tending one branch to operate,
I when proper, as a check on the passion or in.

S'?B

ANNIVERSARY ADDRESS

considerateUess of the other — secures the elec
tive franchise to all free, white, male citizens
twenty-one years old — aud provides a strong
anchorage of stability in prescribing, as the
only lawful mode of revocation or alteration,
such an one as secures the dispassionate exer
cise of reason by a greater number of, citizens
than that which will ever vote on the grave
question of a new convention. Kentucky
pioneers seem to have well understood — what
the wise men of antiquity and even of mo
dern Europe neVer kiicAv^ — the conservative
principles of safe, just, and practicable de
mocracy. Our State Constitutioii is an organ
ized model of those principles. The ultimate
object of the entire structure was to secure
fundamental i ights, not to the numerical ma
jority who, but seldom, if ever, ean need such
extraneous support, but to the minority and
each individual against the passions or in
justice of the major party — to assure the pre
dominance of reason over passion, knowledge
over Iguorance, and moral , over brute force ;
to prevent a mischievous prevalence of
factious designs and of hasty and inconsiderate
public opinion ; in fine, to secure the bless
ings of democracy, unalloyed with its curses,
by organizing political sovereignty in such a
manner as to deprive each citizen of so much
natural liberty as would be inconsistent with
the practieal supremacy of just and equal
laAVS, and, at the same time, secure to each,
againstthe governing party, as much.of natural
right as it can be the end of the best State
govemment to guarantee. In every breath it
repudiates the suicidal doctrine that the Avill
of the actual majority — unsanctioned by.'tjje
constilution or expressed otherwise than that
requires — is law, or should be respected as a
rule of, conduct, or of right. And, in organi
zing the representative principle, it was tho
great aim of our fathers to secure to legisla
tion a degree of responsibility, deliberation,
and knowledge, which the constituent mass.
under the most favorable circumstances, could
never be e.Tpected to embody. And in this
way they intended to make legislation the safe
work of reason and deliberation, and, not the
monstrous offspring of the passions oi', incon
siderate emotions of an impatient or irrespon
sible multitude. Thus only can "vox populi"
be " vox del."
Though complex in structure, yet, in its
practical operation, according to its true theory,
this constitution exhibits an admirable simpli
city and rare Avisdom. And its Avonderful phi
losophy and beauty appear in this pervading
characteristic — that, Avhilstit recognizes the ul
timate authority of the popular aa-uI, it intends
that tho representative functionaries in each
department of sovereign power, and especially
in two of them, shall, by faithfully acting ac
cording to their oaa-u honest and enlightened
judgments, arrest the tide of passion or ignor
ance until the constituent b^ody shall havo had
sufScieut time for thorough investigatipn and
dispassionate conclusions, but that, after the
pubUc miud shaU havo been thus distiUed

through the, constitutional ordeal,, and not be
fore, its final judgment' should be deemed fee
highest attainable evidence of right, and should,
of course, then be supreme. This is the prin
ciple and the end of the entire framS and of all
its checks. j
This theory, if observed in practice, wUl ex
alt representative democracy; any other must
ahvays, as hitherto, prostitute and degrade it.
A constitution less guarded or more demo
cratic than that of Kentucky would authorize
licentiousness and tend to anarchy, the" most
oppressive despotism, and the ,ultimate des
truction of democracy itself. Let our public
functionaries all feel the true spirit of our cou
stitution aud of their stations, and ahvays . act
upou a comprehensive and elevated considera
tion of their responsibility to the whole con
stituency on Avhom their acts Avill operate, and
to their deliberate judgments, and to God —
and, as long as they shall thus fill their places
and discharge their duties, and no longer, our
ark of liberty may save us all from every storm
andevery flood. One bf its best features is
that Avhich secures its oavu stability. Without
this, it Avould not effectually operate as a su
preme law; for, if the majority could abolish*
or change it at pleasure, it Avould bo no more
inviolable or fundamental than an act of ordi--
nary legislation. Our fathers, Avise and pru
dent, were not AvilUng to trust all their or our
rights to theAvillof amajority withoutimposing
on . that majority itself such restrictions as
Avould afford a satisfactory guaranty against a
capricious or unjust abuse pf power. Such is
tiie organic law made for themselves and their
posterity. Honest, men made it, and it may
lust and bless as long as men equally honest,
minister at its altars, in its oavu pure spirit.
But it is a chart of one only of a constellation
of republics, each revolving iu its oavu orbit
round a common centre, and altogether con
stituting, for all purposes common to all, one
pervading, comprolierisive, supreme Common
Avealth. A confederation of independent sov- .
ereigns is not tho union into Avhioh Kentucky
was admitted as a member. Her uniou Jls
national to the extent of all national interests,
and federal only so far as her OAvn local inte
rests are exclusively iuA'olved. She arrogates
no authority, as lu State, to control rights or
interests common to her co-states, nor docs
she admit thc authority of any of them to de
cide for her ou any right or interest of hers.
As to all national concerns, Avhether foreign
or domestic— all things essential to the main
tenance of the harmony, justice and integrity
of the Union, to its nationality and ultunate
national supremacy— she had, by the act' of
becoming a party to the Constitution of tjie
United States, Avisely surrendered all her sov
ereignty to the common gevernment, instituted
for the sole purpose of preserving that sacred
Uniou by regulating and controlling all those
great interests Avhich no one State could regu
late Or control consistently -with the rights of

ON THB SETTLEMENT OE KENTUCKY.

277

others. It ivas in the cause of that union that
Kentucky has oftcnraised her arm and shed her
blood — and to preserve it in its purity and
original design aa-UI she not, if ever necessary,
spill the last drop tha4 animates her patriotic
hearth - ^Yes^' is the response of those nodding
plumes. Such is tho constitutioii and such are the
principles handed doAvn to us by the generation
that Is gone or fast-going aAvay. 'The spirits
of the dead and the prayers of the ypt Uving
conjure us to defend them.
The poAver and value of our local constitu
tion have beeu severely tried; and never more
signally than iu the violent controversies about
a "new election" of Governor in 1816-17 —
and "relief " and "new court" from 1822 to
1827^each of Avhich agitated our State aUnost
to civil couAculsion, and in both of which the
sober intelligence of the people finally pre-
Viviled over tiie earlier impulses of passion and
the promptings of partizan leaders, which, had
they not been checked in the first case by a
firm and honest Senate, and in the last by a
pure and enlightened judiciary', Avould, as
almost all now admit, have trampled under the
feet of an excited majority some of the most
'. iinpo^nt provisions of fiie organic law. t Our
4. Senators and Supreme Judges then fii-m% a-ftd
nobly perfordfed »;the talk allotto J to them by
the constitution, 1^ faithfully doing Avhat tteir
departments Avere prganized to c^ect. They
did noifoUoA^! thertoQ contagiousy example of
illustrious demagogues by stifiin| their own
cousciences, prostituting their oavU judgments,
and committing treason to the constitution and
their sta,tidns, iu subservience to the passions
and submission to the clamor of tho unreflectr
ing multitude. They saved the coustitution
and commended the cause of constitutional
democracy. Any other course by such func
tionaries must- always tend to unhinge the
constitution — to destroy its stability — to per
vert its spirit — and finally, to subvert democ
racy itself.?
Our legislation has 'generally beep consistent
with our constitutiou and promotive of the
public welfare. -JBut the besetting sin of par
tial enactments, ',and., of hasty, crude, and ex
cessive legislation, h& sometimes. stained ^ur
legislative., history; and in no clafis of cases
more frequently than that of Divoi^ces '^ hus
band and Avife, in which, since 1805, but never
before, our legislatures have, in many cases,
seemed to assume the judicialfunction granted
exclusively to the judiciary by tho most impor
tant pro-vision of the constitution.
But, under her State Constitution, esseu-'
tially as it is, Kentucky has already groAvn to
a matured and distingtushed Republic — ma
tured in Knowledge, in social organization,
and in physical improvement — and distin
guished for lofty patriotism aud eminent talents
in peace and in war. Her arm never hesitated
— her voice never faltered iu the cause of con
stitutional liberty and umon. She has often

sealed her patriotism with her richest blood.
By the victory of Orleans, Kentuckians glori
ously oontributed to immortalize Kentucky
valor and their federal leader's name — and b-y
their gallant support of the lamented Harrison
iu the North-Avestern campaigns of the last
Avar, they made him, too, President of the
United States. Hoav many more Presidents
she may give to the nation, from her own
bosom, time alone can disclose. Already two
of her sons are enrolled among the distin
guished fcAv from whom the approaching choice
is to be made; and she has many more Avho
are qualified for the same distiuptiou. By her
principles, her conduct^ and her high moral
power, Kentucky, though only fifty-one years
old, has acquired an exalted and priceless
character, and, having contributed to the pop
ulation and strength of other and younger
Commonwealths, is noAV honored , by thtj sig
nificant title, of "OLD KAINTUCK." Her
blood is good. The richest of this noble
blood flowed in the vjens of our untitled pio
neers,, than *Svhom a 'iiaore heroicj hardy, aud
honest racSkof men "fud Avomen uever gave
birth and fortune to adgr nation ou earth. As
to this world's trash they Avere poo* enough;
they had no blazoned hbraldy, and but little of
scholastic liire. But they were blessed Avith
robust health, sound heads, and pure hearts —
practical sensfe, simple and industrious habits,
dauntless courage, social equality, virtuous
education, and habitual reverence for human
aud divine laAV. These were the elements of
our first social organization and civil state.
Better never existed. What a generation fVas
Kentucky's first! Who could be so falsely
proud as to be ashamed of such an ancestry?
Who among ui Atould prefer to trace his pedi
gree to a nobler stock'! To that primitive race
— to that "root-out of dry ground" — are we in
debted, not only for our present comforts, but
ifor all those qualities which have most honor-
dbly distinguished the name of "Kentuckian."
Let us never prove ourselves imAvorthy of our
origin. Most of the pilgrim band, Avho made the
first footsteps of eivilization on our virgjn soil,
have consecrated by their boue^ the land of
their choice. Many , of them lived long
enough to enjoy the first fruits of their toils —
a few — but very few — survivors yet linger
here and there among us as monuments of the
memorable age that, is past, aud of the npble
race that is almost gone. This venerable
group deserves a passing tribute.
SURVIVING FATHERS AND MOTH
ERS OF KENTUCKY'S DAWN!— We sa
lute, you as. the honored relics of eventful
days to our country and to us, which we, your
posterity, never saAV. - Yet spared by -Provi
dence to commemorate the adventurers of
the hey-day of your youth, may you still be
permitted to gleam forth, yet a Uttle while
longer, the light of the generation now gone

276

ANNIVERSARY ADDRESS

before you, and also to bless the children who
may live a-fter you.
You feel this day what none but you can
feel: Ypu saAV Kentucky in her native wildness.
You well remember the manifold difficulties
you met and overcame. You remember the
friends you have lost and the children you
have buriedi You now review the scenes of
your dark and bloody days^Iook around for
the companions of your sufferings aud triumphs
and sigh that they are gone and you alone
here. Put you live to reap the rich harvest
soAved by your sweat aud your blood. You be
hold Kentucky as she is now before the middle
of the nineteenth century,' and contrast her with
Avhat she Avas in the last quarter of the eigh
teenth. Full of years and full of honor, you
bless God for what you have been and all you
have suffered and seen. May you still be per
mitted to live until you cau knoAV that the
fi-uits of your lives Avill long bless the country
aud the children you will soon leave behind.
And then, iu the light of that bright assurance,
may each of you, as your last earthly moment
approaches, be able to say from your heart —
"Noav Lord lettest thou thy sen'ant depart in
peace — for mine eyes have seen thy salva
tion." But among you here is one — the lonely
trunk of four generations — to Avhom the heart
of filial gratitude' and love must speak out one
emotion to-day. Venerable anibelovedM-OTll-
BB! Hoav often have avo heard from your ma
ternal lips the stoi-y of Kentucky's romantic
birth — of "the hard ivinter of '79" — of all the
achievements and horrors of those soul-rending
days? You have knOAvn this., land in all its
phases. You have suffered Avith those that
suffered most, .and sympathised Avith those
Avho have rejoiced in well-doing and the pros
pect before them. You have long surA'ived
the husband, who came Avith you and stood
by you in your gloomiest, as well as your
brightest days, and has long slept Avith buried
children of your love. And noAV, the sole sur
vivor of a large circle of cotemporaneous kin
dred and juvenile friends — a solitary stock of
thr^e iPundred shoots — with a mind scarcely im
paired, you yet linger Avith us on earth only
to thank Providence for his bounties and pray
for the prosperity of your flock and tho AVelfare
of the land j^oii helped to save and to bless.
And Avhon it shall, at last, be your lot to
exchange this Canaan beloAV for the hotter
Canaan above, may you, on the great day of
days, at the head of your long lino of posterity
and in presence of the assembled universe, bo
able, Ayith holy joy, to announce the glad ti
dings — "Hero Lord arc avo and all the children
thou hast ever given us."
But-tho ashes of many ofthe first Settlers of
Kentucky are scattered, my countrymen, in
foreign lands. And those of the first Hunter,
who named many of her rivers and creeks, lie
undistinguished on the banks of the turbid

Missouri whither he had removed as soon as
Kentucky could stand alone, and where he
died in 1820, with his rifle by his side. '
Yet though our favored land is not honored
as the repository of the earthly remajns' of
Daniel Boone, it was loved by him to the
last.* After exploring the richest portions
of the great west in the same virgin
state, he declared that,'aH in all, there was but
one Kentucky. That Kentucky, far more ad- ,
vaneed in improvement than even Boone
could have anticipated, is Uoav ours. It Avas
given to us by our fathers to be enjoyeil, and
improved, and transmitted to our children as
an abode of plenty and peace, liberty and light.
This is indeed a rich inheritauce. A child
of the Revolution — bom in the gloom of a then
distant and bloody wilderness — our beloved
CommonAvealth is even uoav an illustrious
monument of the Avonderful progress of Amer
ican civilization and of the beneficence of the
American principles of human government, the
67th anniversary of whose public announce
ment to the Avorld we this day commemorate.
Look at her! — bright as the sun — beautiful as
the morning — and hopeful as the seasons.
Her lap is full — her arm strong — her head
sound — eloquent her lips, and true her heart.
Though young in years, she is old in wisdom
and matured in all tiiat dignifies and adorns a
great State. Her policy, her ai-ms and her
eloquence, have swelled the volume of Amer
ican renoAvh; her soldiers, and her orators are
admired in foreign landsj and- she has a son,
AA'hose eloquence, diplomacy and statesman
ship are known throughout the civilized Avorld,
and Avho has been pre-eminently distinguished
among the conscript fathers of our own union.
Her faith, too, is as untarnished as her prOAvess
is undoubted; and uoav, Avhen ostensible bank
ruptcy and virtual repudiation of solemn obli
gations are but too fashionable among individ
uals and States, Kentucky has, as she ought,
stood firm on her integrity, and, Kentuckian-
like, her credit is full up to high-Avater mark.
Yet, with all our blessings, there are some
among us AA'liP complain of hard times, and ap
pear to bo dissatisfied with our self-denying
policy and thc present posture of our local
affairs. Let them remember that the unsulUed
character of their State is every thing; and
that, Avithout this, there can be nothing earthly
Avliich honorable men could enjoy as they
AvOuld Avish. Aud let them also contrast their
condition, Avhatever it may be, with that of our
first settlors, and, Avhen they remember that
these repined not in their peculiar destitution
^even in the Avintcr of " '79" — they Avill sure
ly feel rebuked for their- unreflecting ingrati
tude to their noble predecessors and a kind
Providence for their OAvn comparatively envia
ble allotments.
*In 1845, the remains of Boone ancl his Aviffe
were brought by Kentucky, to the cemetery in
sight ofher Capitol, and ther* interred.

ON THE SETTLEMENT OF KENTUCKY.

279

But gr-atitude to our adventurous fathers aud
niPthcrs, as Avell as duty to ourselves and pos
terity, demands that avc should maintain and
improve the blossiugs, physical, social, and
civil AAdiich avc have inherited. The physical
improvement of our State, great as it has been,
is but just begun. We must persevere iu pru
dent improA'cments for dcvclojiing our latent
resources, facilitating our intercourse, increas
ing our population, augmenting pur Avcaltii,
and thus still adding to our local coipforts and
attractions. It is our sacred dut) to all the friends of
liberty aud equality, dead', liViug, or yet to be
born, to maintain inviolate the supremacy of
laAV, and especially fundamental laAv — ajid, as
indispensable to this" end, Aye must uphold
that political and social organization AVhich
Avill afford the greatest security against the ,
popular vices and passions AA-hicli aa'UI .iffllct
the CommonAvealth even in its best estate.
And must we not, as hitherto, resolutely ihainr
tain the union of the States, and, as indispen
sable to that end, tho supi-cmacy of natiqnal
authority over natioual affairs? Will Ken
tucky ever be guilty of the suicidal act of
rupturing tiie A-ital Siamese artery Avhich unites
our 2G States, as one, in blood and destiny?
One and all Kentuckians ansAA'cr no — NEVER
— Ohio echoes "never;" — .ind "never" is re
verberated from the Allcghaiiy to the Rocky
Mountains. Our characters and institutians can be ruain-
taincd only by thc virtues that produced tiicm.
It is moral pOAver that makes a State free
and truly great. Itis this to which Ave are in
debted for the glory £md prosperity of Kentucky .
Do Ave intend to preserve and increase those
national treasures? Then Ave must prescryc
and increase the stock of moral poAver left us
by the generation Ave arc succeeding. Indus
try, public spirit, intelligence^ simplicitij of man
ners, charity^ self-denial, und social equality, are
the elements of this ponsci-vative and enno
bling pOAver. And, instead of improvement, is
there not danger of deterioration in all these
particulars? We. have more rcfmcment, and
luxury, and Uterature, but are we equal to
our fathers svnd mothers in the sound and
sturdy quaUties that made Kentucky Avhat she
has been? Arc there not general symptons of
physical ¦degeneracy? May not the rising gen
eration be the victims of a false 'pride and per
nicious education, already too prevalent? We
must correct the procedure. If we desire the
honor, happiness, "or health of our children,
the reputation of our State, or the preservation
of its civil liberty, Ave must change our systems
of physical and moral edueation. Sound con
stitution, vigorous health, industrious habits,
pure aud fixed moral -principles, and that sort
of practical sagacity and rectitude Avluch these
produce, constitute thc best of all human lega
cies Without these blessings ancestral
wealth or honor wiU generally curse rather
thau bless its unquallified recipient With the

Avise aud virtuous, the moral virtues that dig
nify and tho rational graces that most adorn
our nature are tho tests of merit and tho only
passports to favor. Lot us then bo careful to
imprint on the- hearts of our children the cheer
ing republican truth —
"The rank is but the Guina's stamp.
The man's the Gou'd for all that."
Every child ,in the CommonAvealth should
be educated in such a manner as to enable
them all to be good and iisefuV citizens. This
is not benevolence merely, but obvious policy.
In a free State, where the majority govern,
Avliat social organization or code of huinan
laivs can secure the rights of all or any un
less tho governing mass be intelligent and
.moral? And Avonld -not the rich lose more by
the ignorance and A'ices of the undisciplined
poor than thO post of any prudent system of
universal enlightenment and amelioration? It
is the interest of , each and of all that every
one should, be acquainted Avitli the elements of
the useful arts and of natural, moral, and po
litical science.
But of all laws, that of the hem-t is the most
supreme among men; and the finger of God
can alone effectually inscribe that laAv on the
tablet of the mind. This is the only unfailing
prop of just .and secure demoeracyi But it is
not the metaphysics of schools, nor the polem
ics of dogmatists, nor the belligerent theolo
gies of sects, Avhidi exalt or save a State. It
is the religion of the heart — pure, simple, and
god-like — that Christian religion, Ayhich sub
dues bad passions, eradicates vicious propcU-
sitics, and infuses humUity, self-denial, and
universal benevolence. This it is Avhich equal
izes and renovates social man and effectu
ally guards all his. rights, person and po
Utical. Wlierever it prey.ails, liberty and
peace abound; yvhenever it is absent or is
mocked by scepticism or hypocrisy, anarchy
and despotism 'must, sooner or , later, be the
people's doom.
Could the Avholo pioneer band, living and
dead, uoav bless their oaa'u Kentucky hy one
valedictory counsel, they Avould, all Avith one
voice, say to her— "Eijucate your children — all
— all — and be sure to teach them right. On this
hangs the destiny of Kentucky, and, perhaps,
that also of tho American Union."
This last remnant Of our sacred band of pi
oneers and that also of our revolutionary sol
diers and Statesmen is uoav, Avith trembling
steps, descending the final slope of their earthly
pil"-rimage to sleep Avith the compatriot friends
who have gone before them; and soon, very
soon, Uot one AviU be left behind to tell the
story of their eventful lives, or behold on
earth the beautiful country blessed by their
noble virtues and commended to Heaven by
their dying prayers. But shall they ever die
in the heart of Kentucky? When the last of
the Patriarchs shall have returned to the dust,
we may rear to their memory a tOAvering pyra-

280

ANNIVERSARY ADDRESS

mid of earth, on Avhose lofty summit the Bald
Eagle may build it.5, nest and hatch birds of
liberty for ages — and that majestic mausoleum,
pointing to tho skies, may, centuries hence,
sublimely stand alone tho historic monument
of our heroic age and heroic race. But is it
not due to the memory of the past, as Avell as
to the enjoyment of the present and the hopes
of the future^ to signalize our own Avondorful
age by other and' more useful memorials wliich
may attest, to succeeding generations, our oavu
title to the gratitude bf our posterity and our
kind? Is it not our duty to our fathers, and
to ourselves, and to our, children, and to all
mankind, to preserve iuA'iolate and improve
tho rich deposit of moral and political truth
and of moral and political organization left
Avith us in trust for ourselves and - our fellow
men of every clime and of every succfeeding
age? , And can this sacred duty be performed
Avithout maint]ainiiig the principlps aud' practi
cing tho self-denying virtues of our glorious
age? And can Aye Safely transmit the blessings
of civil and religious liberty to out children or
commend organized democracy to mankind
unless, by faithful discipline and rational
teaching, physical, moral and political, Ave
train up those children iu habits of truth, in
dustry, and morality? .If such wholesome dis
cipline bo neglected, or parental authority be
perverted by false pride or mistaken indulgence
Avill not the legacy of self-governnieut pi-ovo a
curse rather than a blessing to thc uriworthy
recipients to Avliom avc are so anxious to bc-
(pieath it? Should avc not, therefore, exalt
our OAVU age and prove ourselves Avorthy of
the manifold iJlessinj^s Ave enjoy by cultivating
and oxemplifyiiig all tho social and civic vir
tues of truth, temperance, industry, justice,
public spirit, parental fidelity, and submission
to the laws of our country and of God? And,
Avhilst Ave should ever maintain the integrity
and stability of our institutions, should avc not
prudently ropaii-|, rectify .T,nd improve them so
far as a Aviso experience may shoAV that their
great end requires modification and improve
ment? Without such occasional infusions of
new elements of conservative vitality they
might, in time, cither explode or expire- frpm
decay. But if, Argo-li\e, they ever require
renovation or repair, let tiiom, Argo-like, still
retain their original identity; for tho eificacy of
our ownfnndamcntal laws depends on sentiment,
at last. We all knoAv hoAv avc love the ancient
oalc that sheltered our infancy^ or the old armed
chair that rocked our mother. Nor can aa'o be
unmindful of tire fact that avc feel more vener
ation for the Avork of our fathers than for that
of our OAvn hands; for we seo daily exemplifi
cations of the latin aphorism — "ritera extolli-
mus, recentium incuriosi." And Avhat is it, so
much as antiquity and historic glory, that has,
so long and so AvonderfuUy, secured the sta-.
biUty and supremacy ofthe old statutes of Eng
land Avhich constitute all that is called the
British Constitution?

But the most glorious aud enduring monu
ment HyJiich can distinguisli Our agC' of e"njoy-
ment and peace is that Avhich should testify
that WC have' been faithful lo our children and
inade, tiicm fit, in bodj', in habitude, 'and in
mind, for the enjoyments and the AA'orks of
civil liberty that await their entrance on the
great theater Avhich avo must soon leave.
Thug, and only, thus, may avc,' of this gener
ation, evince our gratitude to tHosp of our
countrymen Avho have gone before us, and se
cure tho grateful remembrance of those ivho
fehall come after us. Thus Kentucky may dis
charge tho duties of her seniority and local
position in this great v^alley, and show, to her
younger sisters bf the Avest, tho only pathway
to safe liberty or renoAvn. Aud thus, too, iri
the ultimate and moral ascendency of this
valley of hope that may be destined to teach
the AVorld, she may be instrumental in the re
demption aud regeneration of mankind. All
this AVO miight, perhaps, accomplish;- — all this,
therefore, Ave sho^ald attempt. "Wlio knows
that Ave might nbt make Kentucky, morally
and politicaUy, (as well as physically,) the
heart of our Union, and thereby also, in time,
tho heart of the whole earth. Let us try. If
Ave fail, yet thc honest effort Avill he honorable.
But if we succeed, everlasting glory is oUrs.
And even if Ave or our children should be
doomed to see thc genius of constitutiphal de
mocracy exiled from this land of its birth, we
may be consoled by the hope that it will take
refuge in some more congenial soil and propi
tious age; for Avhat we liavc already felt and
seen under the sIiadoAV of its Avings assures us
that its cause is the cause of Heaven and must
finally prevail.
¦Wliothor Ave look to prophecy, tho intima
tions of natural theology, or the Avonderful
CA'cnts ofthe last half ceutui-y, Ave h.ave reason
to hope that our race is destined to attain on
earth a moral rectitude aud clev.ation far more
general and ennobling than any human excel
lence hitherto exhibited. Even noAv the pro
gress of general .ameUpration is rapid and per
vading. Tho average carper of mankind is
upward, as Avell as onAvard. Christianity,
rational philosophy, and constitutional liberty,
like an ocean of light, are rolling their united
and resistless tide over the earth and may, ere
long, cover it as tiie waters do tiio great deep.
Doubtless there may yet be partial revulsions.
But the general mo'yement Avill, as Ave trust,
be progressive until the miUouial sun shall
rise in all the effulgence of universal day.
Por that momentous day Avliat shall avc have
done? And, Avhen it comes, Avill that star-
spangled banner still Avave, Avith all its stars
and stripes undimmcd by time, and "E PLU-
RIBUS UNUM" still emblazoned on its blue
Heavens? And will that halloAved light beam
on Kentucky's fiag— and will that flag then, as
noAv, bear on its folds the national motto—
"United we stand, divided tve fall?"

ON THE SETTLEMENT OP KENTUCKY.

3Bt

And all this may possibly depend on the
conduct of this generation. Then let us all,
here uuder this metropolitan sky, make, for
ourselves and our children, a sacramental
pledge that Ave Avill try to promote the final
triumph of Light over iJarkness, aud of Ixight
over Might; aud that, so far as, under Provi
dence, the event may depend ou our conduct,
Kentucky's tAvinned ensign, Avith its motto un
changed, shall, ba|he in the rays of millennial
sunshine. But the fiisliion of this Avorld, like the shad
ow of a cloud, flitteth away. ^lutability and
decay are inscribed on all things earthly.
Thebes, aud Tyre, and Palmyra, and Babylon,'
the doAvufall of empires, mid the ruins of the
old Avorld, are not the only-memorials of this
solemn truth. In sepulchral tones, it is echoed
from Avastes of time scattered over our own
continent. Successive generations AA'ho, ages
ago, inhabited this fair land, have passetl aAvay
and left not a tr.ace of their destiny behind.
Here aud there a mound of earth attests that
they oiice AV-pre; — but all else concerning them
is buried in oblivion. Tradition tells not their
tale. The signers of our Declaratiou uf Inde
pendence, and the signers of .the Constitution,
of thi United' States, arc all gone to another
36

Avorld. Even thc graves of our departed pio
neers are generally undistinguished and un-
knoAvu. We tread, daily, on their ashes un
conscious and unmoved. Already avc have
ciiibalmed thch" memories in our nursery tales
and begin to look on them as the legend he-
rocs of a romantic age obscured by time. We
ourselves must soon sleep Avitli our fathers,
and be to earth as if Ave had never been; — and
our children and their children Avill soon follow,
H.s- and repose Avith the nations of forgotten
dead. Our institutions, too, and even this be
loved country of ours, and all it contains, must
perish forCA-er.
Yet Ave have hopes that ar eimmortal — inter
ests that are imperishable — principles that arc
indestructible. Encouraged by those hopes,
stimulated by those interests, and sustained by
and sustaining those principles, let us, come
Avhat may, bo true to God, true to ourselves,
and faithful to our children, our country, and
mankind. And then, AA'henever or wherever it
may be our doom to look, for the last time, on
earth, avc may die justly pround of the title of
"Kentuckian," aud, AA'ith our expiring breath,
may cordially exclaim^ — Kentucky, as she was;
— Kentucky, as she is; — Kentucky, as she will
be;-TK;ENTUCKY FORE VER.

PRELECTION.

In the Spring of the year, 1844, Dr. Abner Baker— a graduate of the
Louisville Medical College, and born in' Clay county, Ky.; 26tli March,
1813 — was married to a daughter of James White, of said county, and
who was a brother of Jolm White, once speaker ofthe House of Repre*
sentatives of the United States. Baker and his wife lived with Daniel
Bates, whose wife was Baker's sister. Shortly after the marriage, he
charged Bates, and her own father, and others, with illicit intercourse
with her, (Baker's wife) and sometimes in his own presence. And, appre
hending also that Bates was seeking his life, he killed him by a pistol
shot, and went immediately to James White's, and proclaimed and ex
ulted in the act! He was tried by an examining court, and acquitted on
the ground of insanity. He then was taken to Cuba for health, under
the advice of medical and other friends. Bates, not dying immediately
after the shot, published a will, by which he bequeathed $10,000, to be
expended in the conviction of Baker. The executors procured from
Gov. Owsley a proclamation offering a high reward for the apprehension
of Baker during his absence in the South. On being advised of the
proclamation, Betker's family brought him back to Clay county, and sur
rendered him to the custody of the law, to answer an indictment for mm--
der. Though the pi-osecuting party, composed of influential and wealthy
men, had a decided sway in that small and frontier county. Baker's
counsel and friends, feeling confident that he could not be convicted, de
clined to move for a change of venue, and went into tbe trial in July,
1845. The executors employed W. H. Caperton, Silas Woodson, and
 Caldwell, to aid the oflicial attorney for the commonwealth^ W. B.
Moore. The jury (under duress, as many believed) returned a verdict
of guilty, and Judge Quarles overruled a motion for a new trial. The
following appeals to the Governor were then made for a pardon. In ad
dition to which, petitions signed by numerous multitudes of citizens of
several counties, and by lawyers, among the most eminent of Ken
tucky, were also laid before the Governor, backed by strong and thrilling
addresses to him by Baker's father, and brothers, and sister, (Mrs. Cozier)
none of which will be herein republished.
To prevent escape the Governor had the jail, in which Baker was
confined, guarded by about 200 men, under the command of Gen. Peter
Dudley, of Frankfort. On the 18th of September, 1845— the 3rd of Oc
tober being the day fixed for execution — Baker's father and his brother,
H. Baker, believing that the Governor, who had not then intimated to
them any decision on the petitions for. a pardon, had the power to direct
an inquisition, and that Gen. Dudley's troops would not obey a writ of
habeas corpus from a Circuit Judge, submitted to him a petition for an in
quest as to the then state of Baker's mind, on the ground, verified by affi
davits, that he was then a maniac, and could not therefore, in that con
dition, be lawfully executed. The Governor requested Mr. Crittenden,
Secretary of State, to request from Mr. Robertson, as counsel for Baker,
a statement of the reasons why he thought that the power to do what

PRELECTION. J83
was asked was in the Executive. Mr. R. instantly communicated his
reasons, but received no response from the Governor. Believing after
wards that orders had been despatched to Gen. Dudley for the execution
af Baker, Judge Buckner was applied to for a writ of habeas corpus, for
the purpose of having the inquisition. He granted it; but, satisfied that
it would not be obeyed without the Governor's sanction, wrote to him ac
cordingly — ^but the Governor declined doing any thing, and it was then
(only a day before that of the execution) too late to do anything more
for the rescue of the unfortunate Baker, who fell a victim to ignorance,
prejudice, and his own unquestionable insanity of mind.
The following extracts are republished from a book, entitled, "Baker's
Trial." The object of the republication of them here ia to show that
Mr. Robertson's speech, which succeeds them, was sustained in its facts
and its principles, and that his doomed client ought to have been sent
to a Lunatic Asylum, as a maniac, instead of being hung as a mur
derer.

TRIAL OF DR. ABNER BAKER.

To Governor Owsley;
The undersigned- asks leave to make the
following representations to your Excellency,
respecting the ease of Dr. A. Baker, lately
tried for the killing of D. Bates; Having at
tended the trial, examined the accused, and
heard the evidence, he trusts that the follow
ing facts and deductions will be accredited
Ou examination, he found said Baker in a
high state of nieutal and physical excitement —
his pulse quicker than natural, his extremities
cool — his countenance wild and unnatural —
the muscles of his face flaccid and of a pecu-
liarhang; and his eyes, when a particular sub
ject was alluded to, becoming singularly wild
and red, as if radiating red rays, and his con
versation incoherent, erratic and irrational.
From his appearance, his condition and his
conversation alone, I would not doubt that he
-was insane.
But the facts proved on the trial, indepen
dently of the foregoing circumstances, would
leave no room for doubt, that Dr. Baker was
insane as to his ivife and Daniel Bates, when
and before he killed the latter. Among other
facts, it was proved that, before the marriage
of the Doctor, his father and other members of
the family apprehended that he was insane;
and after the marriage, and before the killing
of Bates, his father comm.uuicated coniiden-
tially to others, and in a letter to his sans at
Knoxville, Tennessee, that he was insane. He
(the Doctor) believed that Bates aud others
had combined to prevent his marriage, andto
destroy his reputation and his life. He be
lieved that Bates maltreated his sister, (the
Avife of Bates,) and was endeavoring to take
her life; andthat it was necessary for him to
remain in the family to protect her. He be
lieved that Bates was attempting his own life,
and had also employed his slaves to assassin
ate him. A few days after his marriage, he
published the conviction that his wife, when
not more than nine years of age, had been
pro&tituted by the gentleman who Avas her
teacher, and ¦whom he charged also with pros
tituting, in like manner, his whole school, or
neariy the whole— and all the circumstances
of manner, time, place, and signs, he imagined
and stated most minutely. He also charged
many other persons with illicit intercourse
with his wife, some time before, and some
time after marriage — and among them Avas an
uncle, an ugly negro, his brother-in-law,
Bates, and her own father. He imagined and
asseverated that Bates and her father came to
the bed in -which he and his wife were sleep
ing, at Bate's house, and tad intercourse -with

her, there in his presence. He 'alleged that
Bates had gotten his (Baker'13) young silter—
with child. He asserted thai, at Lancaster,
about a month after the marriage; his wife
had an abortion, which Avas shown by otiier
testimony to hav^ been impossible. He said,
and persisted in declaring that, at Lancaster,
his mother, eveiy night, after he and his wife
were asleep, opened their chamber door, up
stairs, and let another man into his wife,
whom one night he made jump through a win
dow, by drawing his pistol on him. He also
charged his mother with keeping a licentious
house. Hs stated to two of his brothers "that
he tried the teacher's sign ou a married lady
in Knoxville, whom the teacher had educatedf,
and that she understood the signs perfectly.
He denies insanity, and says he would rather
be shot than acquitted ou that ground — in
sisted that he was able to prove every fact he
had ever stated, and ¦was offended with his
counsel because they ¦would not defend him in
that way alone. Many other facts of a similar
character were proved; and, from all the facts,
I did not doubt that he labored under an in
sane delusion as to his wife and Bates; and
under the influence of a morbid derangement
of the brain, imagined facts that did not ex
ist; for the supposed existence of which there
was no evidence whatever, and of the false
hood of which no argument or proof could
convince him; because a diseased brain com
municated false images and distorted objects,
which made all the impression on the mind
that the evidence of sound sense could make
as to what is true.
I have no doubt that the killing of Bates
was the offspring of that insane delusion — was
the act of a deranged mind, and would never
have occurred if Baker's mind had not been
deranged. It was also proved that, after Baker had
left Kentucky, he returned to settle his affairs,
and that before he got to Bate's furnace, which
he had to pass, heAvas informed by several
persons that Bates had said he would
kill him on sight if h« ever returned, andthat
Bates and his negroes were armed for that
purpose; and he was advised topostpone pass
ing the furnace until after night. 1 believe
that he was convinced that Bates would kill
him unless he should kill Bates first. It also
appeared that he expressed the conviction
that he had violated no law of Heaven or
earth. He made no attempt to escape, but en
deavored to go to his ¦wife's father's, and
miesing the way, staid dl night at Hugh

TRIAL OP DB. ABNEH BAICBR.

28.'i

White's, and se,em»d unconscious of having
done any Avrong in killing Sates.
^ There" -was no testimony showing any mo
tive for hostility to Bates, ahd a disposition to'
kill him, except his convictions as to his treat
ment of his wife, and of which supposed mis-
ti'eatment, there ¦was no other evidence than
his own statements, in either case.
That Baker believed, and yet believes firn^-
ly, all the facts he repeatedly statfed respect
ing Bates and his ¦wife, there can be no doubt.
He urfeed his counsel to suffer him to prove
them,m of ¦which he insisted he could prove
beyoud question!. If he had been sane, and
So unaccountably diabolical as to wish to
destroy Bates and the character and happinesi
of his ¦wife without any imaginable motive, he
would have told tales more plauBible — some
thing that might have been believed; and sure
ly he would not have charged Bates ¦with im
pregnating his (Baker's) o^^vn youB§ sister, or
,Ms mother with prostituting her house.
Ever since th« case of Hadfield, in- 1794,
persons in Baker's condition, have been in-
¦variably acquitted or pardoned — and astrong-
cr case thau Baker's does not appear in either
Uiedical or criminal jurisprudence. If you
haA'e auy doubt as to the case of Baker, I would
be obliged to you to eXainine carefully Ray's
.Medical Jurispi;ud6nce on Insanity, and Bs-
quirol and the case of Hadfield — that also of
Lord Oi'fordi and of the man who shot at
President Jackson ; in all of Avhich cases, there
were acquittals on the ground of insane delu
sion on one subject or more, whilst there was
apparent rationality oU others; and in none of
Avhich was there any inquiry as to whethej-
the accused had a general knowledge of right
or wrong; but in all of ¦fc'hich, it Avas taken for
granted thatthe act being tho offspring of in-
'sanity, the accused, as to that act, should be
treated as he should have been, had he been
totally insane on all subjects. There is, in no
asylum, one case in twenty in which the lu
natic does not reason well and is not ration
al on some subjects. Intellectual insanity is,
¦ in fact, nothing else than the morbid imagina
tion of false facts. The , reasoning of luna
tics is generally correct — their premises only
are false, Ijeing merely imaginary.
The jury, as you will seefrom tlieir petition,
were satisfied of Baker's insanity — but found
him guilty because he was rational on s.opie
subjects! It is almost impossible to make a
jui-y understand suoh acase correctly; and, in
this case, it was impossible to procure a jury
¦ that had not been excited against the prig'pn-
er, and formed an opinion of his guilt. Even
the' judge, and all, the four prosecuting attor
neys, at firstj denied the existence of particu
lar insanity or unsoundness of mind ou par
ticular subjects. Biit .they all, I believe, (and
the Commonwealth's Attorney, I know,) be
came convinced df 'it during the trial. Audi
have no doubt thai a jury of • enlightened med
ical men or jurists,. could not 'hdve been se
lected who would have hesitated five minutes
to find a verdict of not guilty.

This is a novel and interesting case. It
will be reported and become a leading case;
and allow me to say that, in my nndoubting
judgment, no Case eA'er occurred which was
more entitled to the interposition of the exec
utive, whose power to pardon was given for no
class' of cases more clearly than for such as
this. '
I anj well satisfied that no informed man
could have heard the trial and seen Baker,
witliout being convinced, beyond a- doubt,
that he is noAv insane, and was even more so
when he killed his brother-in-law. And it
does seem to me that he Avho, upon a full
k;noAvIedge of all the facts, doubts Baker's in
sanity, -Avould, by such incredulity, exhibit
himself strong evidence of monomania — and I
honestly think that the execution of Baker
would be a judicial murder.
. I never asked for the pardon of a convict,
because the cases, in my judgipent, are rare,
in which the innocent are, through ignorance
or passion, convicted. But I feel sure, beyond
any doubt, that such has been the doom of Dr.
Baker, and. that he ought not to be punished,
but pla'ced, (as he will he, in the event of a
pardon,) in our Lunatic Asylum,
Respectfully, B, ROBERTSON".
Lexington, July 25, 1845.
Postscript.
V. S. Tlic foregoing Avas Avrittcin, Avheu 1
did not kiiOAV that a transcript of the evidence
on the trial, Avould be laid before you. ' But
haA'ing beeu since furnished with a certiiied
copy of that cA-'idence, I present. to you that as
more satisfactory than my synopsis of it. But,
as Dr. Cross' opinion Avas formed on this gen
eral statement of mine, I inust, for the benefit
of the opinion of that eminent gentleman, ask
your attention to this statement, for the .pur
pose of seeing that Dr. C.'s opinion on those
.faetSj would certainly be his opinion on the
certified evidence., And I think thatl hazard
iiothiug in the opinion that no intelligent jurist
or medical man could be found, who would
entertain any other opinion Avhcn possessed of
full information on the subject.
G. R.
Opinion of Dr. Jask C. Cross, on the Synopsis of
evidence prepared by Geo. Robertson, Esq,
' From the statement Avithin made of the
facts, and -which Judge Robenson assures me
Avei-e proved on the trial of Dr. Abner Baker,
for the murder of Daniel Bate's, I have no hes
itation in saying that said Baker is, and
A^'as at the time ofthe murder, laboriug under
monomania, if, indeed, thore has not been a
complete subversion of .the faculty of judging
between Avhat is right and Wrong. This being
the case, Baker canuM be regarded as respon
sible for his conduct, and therefore, should not
be subjected to the penalty which has been
decreed by- the jury.
JAMES C. CROSS,
Late Prof, in the Med. School of Transylvania.

385

TRliL OP DE, ABNER BAKER.

To Sis Ex,cei,lencv, William Owslbt,
' ' GovEKifOK OP Kektuckt:
The undersigned, composing the jury that
found a verdict of guilty,, in the proseeution of
Abner Baker, for the alledged murder of
Daniel Bates, feel it their duty to recommend
him to your Excellency as a fit dbject of Ex
ecutive mercy, "yv^hilst Ave felt constrained, by
our opinion of the law and the evidence, to
pronounce a verdict of guilty, Ave ai-e satisfied
' that the said Baker, Avhen he killed said Bates,
and before, and since, Avas in a state of mental
excitement and delusion respecting his Avife
and said Bates, Avhich may be considered in
sanity. And although we were of the opinion
that he Avas, at the time of the killing, able to
discriminate right from Avrong, yet we believed
that his said state of mipd was such as to en
title him to a pardon. And Ave further state
that tie prisoner is, from his appearance, and
from the evidence, in ^ worse coUdition of
miud at this time, thau at the time of the
killing, JULIUS X ROBINSON,
ABRAHAM CARTER,
WM. BISHOP,
WM. B. ALLEN, i
BRYSON ><\ BISHOP,
THOS., COOK.
We say, from his present appearance, in our
OAVU judgment, aa'c haye Uo doubt the prisoner
is insane. t. HOLCOMB, i
HENRY HENSLEY.
This is to certify that the undersigned was
one of the jury- who tried Abner Baker on.a
charge qf murder, in killing Daniel Bates; and
do further certify, that it Avas proved by sev-,
eral witnesses that Dr. Abner Baker had. Some
three or four months previous, and at different
times, told them that Daniel Bates, he believed,
intended to kill him — that Daniel Bates had
formed schemes and conspired with his ne
groes, and to carry those schemes into effect, he
had sent his negroes out in ambush ai-med
Avith guns— and that they believed that Baker
thought at the time he told them, that such
Avere facts. It was also proved by several wit
nesses, 'that Dr. Baker had told them, at differ
ent times, that Daniel Bates treated his wife,
who is Baker's sister, badly; and that Bates
had, at different times, in the night, Avhen his
wife was in her bed, Avielded his Bowie knife
over her head aud throat and threatened her
with instant death; and that he believed that
Bates intended to lull her, and that he -was
staying at Bates' to protect his sister, and they
believed that Dr.,,Baker thought that the same
was true. It was also ju-oydd by several w'it-
nesses, that Dr* Baker, told them that his Avife
Avas a whore, aud that Daniel Bates had se
duced his wife and had intercourse with her
while he Avas boarding, with his Avife, at Bates';
and that her teacher had kept her since she
was nine years of age, which statements they

believed Dr. Bafcer thought were true at the
time he told them. And from the evidence
they believed that Dr. Baker Avas deranged
updn those subjects and not a fit subject for
example; but from our understanding of the
laAV applied.to the evidence, we had to fifld a
verdict of guilty. I do further certify, that if
the delusions Avhich were proved upon Baker
had been facts, it would have been a full and
good excuse for killing him. And do futher
certify, that we did not, in the jury rodm, con
sider the AVOrks read on the part of the de
fence to be good authority, which works were
Beck's Medical Jurisprudence, Bay's Medical
Jurisprudence, and other works, which, if we
had taken them to be good authority, we should
have been obliged to acquit, pr found a verdict
of not guilty, from the CA^idence. And it was
considered that the Commonwealth's Attorney
was a sworn officer, and was bound to give
the Whole law governing us in the finding^ of
our verdict. And some of the Jury called
upon the Court for some instruction, and from
the general instructions given, we construed it
to go so far as to make the prisoner guilty, if
he knew that there was such a being as a God,
or such laAvs in existence as would punish the
idlling of a mau; or knew, generally, right
from wrong. But if we had understood that
the instruction would have excused him if he
sincerely believed that he was called upon to
kill Bates, in self-defence, or was called upon
by some superior power to kill Bates for his
fancied injuries, we should have beeii obliged
to have found a verdict of hot guilty.
ABRAHA.M C-ARTE'R.
Clay Countt, set;
This day, Abraham Carter personally ap
peared before the undersigned, one of the
Commonwealth's Justices of the Peace, and
made oath that the facts stated inthe foregoing
certificate are true.
Given under my hand this 5thof Agust, 1845.
J. H. GARRAD, J. P.
This is to certify, that the undersigned are
a part of the Jury who set upon the case of
the Commonwealth vs. Abner Baker upou a
charge of murder, iu killing Daniel Bates.
And do further certify, that it was proved by
several AA'itness that Baker had told them
some three months or more previous to the
killing of B.ates, that Bates had formed secret
schemes to kill Baker at different times, and
that at different times he had sent his negroes
out iu ambush, armed with guns, to kill Baker
which they believe was believed by Baker to
be true. It AA'as also proved by Several wit
nesses that Baker had told them at different
times, that Bates treated his (Bates') -wife
badly, who Avas aud is Baker's sister, and that
Bates had threatened her life, and he was
staying at Bates' to protect his sister, aud
that Bates had, during different times in thc
night, wieldcfd his BoAvie knife over her liead,
threatening her Avith instant death; which

TBIAL OP DE. ABNER BAKER.

287

statement the witnesses believed that Baker
thought Avas true. And also, it was proved
by several Avitnessos that Baker had told them
Bates iad, at different times, had intercourse
with his wife at his (Bates') own house,
where he boarded at the time Avith his wife;
and that her uncles aud her old teacher had
likewise had intercouse AA-ith her, aud that her
teacher had kept her siuce she was about nine
years old, aud they believed that Baker thought,
at the time he told them, that the same Avas
true, and from the evidence, they believed that
Baker Avas deranged upon the above subjects;
Avhich evidence will be, or is already laid be
fore you, as Ave are told. And from the evi-
deuoe they do not believe that he is a proper
subject for example; but from what we con
sidered the law AVC had to find a verdict of
guilty. We do futher certify, that if the de
lusions which Avero proved upou Baker had
uot been delusions, but facts, that Baker would
have been justified or excused iu the killing of
Bates. We do fiirther certify, that we do not
look upon the authorities which were read ou
the part of the defence as laAv, which authori
ties, or some of th^em, Avere Beck's Medical
Jurisiirudence, Ray's Medical Jurisprudence,
aud other works; but they considered that the
Attorney for the Commonwealth Avas sworn
and bound to give the laAv which governed us
in the finding of om- verdict, and upou that
impression, together Avith the general instruc
tion given by the Court at thcrequest of the
Jury, we found our verdict. ,
H. HENSLEY,
JULIUS M ROBINSON,
L. HOLCOMB,
ZADOCK PONDER.
Clay County, set:
This day, Henry Hensley personally ap
peared before the undersigned, one of the
Commonwealth's Justices ofthe Peace for the
country of Clay, and made oath that the facts
stated in the foregoing certificate w^re true.
Given under my hand this -r- day of Au
gust, 1845-.' THO. McWHORTBR, J. P.
Mt. Vehnon, July, 1845.
Dear Governor : — I am informed that there
wiU be an application to your Excellency for
the pardon of Abner Baker, who was con
demned by a Jury of Cla^ county for the
murder of Daniel Bates. From the evidence
in the case, 1 am inclined very strongly to the
belief that he now is, and has been for ?ome
two years at least, laboriUg uuder monomania.
The evidence will all be laid before you, from
which you can form your own opinion ; and
I should 'be very much gratified to see him
pardoned. "VV. B. MOORE, Att'y for Com'th.
Lexington July Slst, 1845.
To His Excellency, William Owsley :
Dear Sir : — I beg leave to make the follow
ing representation to your Excellency respect
ing the case bf Dr. Abner Baker, lately tried
in Clay county, Ky., for shooting his brother-
in-law, D. Bates. I was induced to attend

the trial, and whilst there examined Dr. Baker
in jail before the ti'ial came on. I found him
in a high state of mental excitement, with
manifestations of bodily derangement ¦ such
as quick pulse, oool extremities,- countenance
wild and unnatural, the muscles of his face
flaccid arid of a petuliar hang, Avith a fierce,
wild, and ferocieus expression of his eyes~
this latter symptom was greatly aggravated
when he d-W-elt ou those subjects, or delusions,
that lead to the unfortunate and unnatural
murder. Ilearned his appetite and digestion were ir
regular, and his sleep imperfect and irregular.
When in conversation, his manner, and tones
of voice, all indicated mental alienation. I
heard the material circumstantial evidence on
both sides, detailing as well the manner and
circumstances attending ths murder, as his
previous and subsequent conduct, the motives
that seemed to impel him to commit the act,
the prabable provocation, &c. &c. From all
the facts and circumstances of the ca-^e, I be
came thoroughly satisfied he labored under
mental derangement caused by a njorbid state
of the brain, and so expressed myself under
oath to the Jui-y sworn and empanneled to
try the case.
I could embody. copious extracts from the
testimony given by the witnesses on trial, as
evidence of the correctness of the professional
opinion given. It would be, however, on -my
part, uncalled for and irrelevant, especially as
your Excellency will, in all probability, bo
furnished with it in an authentic and accurate
form. From a thorough conviction of the in
sanity of Dr. Baker, before and at the time of
his shooting his brother-in-law, D. Bates, I
beg leave most respectifully and earnestly, to
commend him to your Excellency as a proper
subject for Executive clemency and mercy.
With assurances of great respect,
I am your obedient servant.
W. H. RICHARDSON, M. D.
To William Owsley, Governor of Kentucky :
The undersigned, members of the Medical
Faculty of Transylvania University, having
heard from Dr. Richardson a i-ecital of the
material facts proved, as well bythe Common
wealth as by the accused, in the late prosecu
tion of Dr. A. Baker, for killing his brother-
in-law Daniel Bates, in Clay county, in this
State, feel it to be their duty, as well as their
privilege, to declare to your Excellency their
conviction that before, aud at the time of said
homicide, the said Baker was of unsound
mind, in fact and in law ; that he labored,
without doubt, under an insane delusion, es
pecially respecting- his wife and Said Bates,
which is sornetimes characterized as monoma
nia, and which, in various forms and degrees,
is the most prevalent kind of insanity, intel
lectual and moral : and they cannot hesitate
to express the confident opinion that the kill
ing of Bates "was the direct offspring of the
said insanity : and that, while it may be that
iBaker was conscious of right and wrong gen
erally, or in the abstract, he was, from the

2S3

TRIAL OP DR. ABNER RAKER.

proofs, so far insane, ou thia particular sub
ject and occasion, as to have beeu impelled to
the homicide by au irresistible motive of de
lusion, without a consciousness of a violation
of the law of God or of man in that particu
lar act.
Wherefore, they have uo difficulty in com
ing to the conclusion, that said Baker is a
proper object of Executive mercy ; that nei
ther the letter nor the policy of our criminal
code would require , nor justice and humanity
permit his conviction and execution for the
blind and insane act of killing his said bro
ther-in-law. They, therefore. Without hesita
tion, but with great respect for your Excel
lency, and solicitude for the result, beg leave
to unite ther petition with that of others for
the pardon of said Baker.
THOS. D. M1TCHELL,M. p.
Prof. Materia Medica and Therap. Tran. Univ.
L.G.WATSON,
Prof Theory and Practice, Tran. Uuiversity.
Lkxixgton, July ,25th, 1846.
Subsequently to signing the ioregoing pa
per, the undersigned has heard the testimony
given in the case, and has no hesitation to say
that his opinion in the premises is confirmed.
THOS. MITCHELL, M. D.
Prof. Materia Medica and Therap, Trkn.Univ.
The undersigned has heard the evidence
in the case of Dr Baker, and conceives it a case
of monomania as conclusively made out as
can be found upon record. B. W. DUDLEY, M. D.
July 25th, 1845.
Lexin9tT0n, July 2.5th, 1845.
Got. Owsley : — From the fact that I have
been officially conhected, with the Lunatic
Asylum, at this place, I have had more ex
tended opportunities of becoming acquainted,
both practically and theoretically, with the
diseases of the humaU mind, (in all their
endless variety) thau ordinary members of the
profession. 'Therefore, I haVe presumed, at
the solicitation of Dr Baker's friends, to give
you a most unqualified opinion, after a critical
examination of the evidence in the case, that
before, and at the time of, the commission of
the act, for which he has been convicted, he,
was of unsound mind, and should not be held'
responsible, either in laAV or in morals, for an
act committed under such a state of mind.
Respectfully, &c.
S. M. LETCHER.
P. S. — I have not conversed wilh a Physi
cian Avho don't concur in the above opinioU.S.M. L. ,
IvEXTicicr LuN-ATio AsvLDJi, July 24,1845.
I have examined fully the testimony, both
on the part of the Comraonwealth, and the de
fendant, in the case of Dr. Abner Baker for
the murder of Daniel Bates. After having
seed a, greati number of insane persons, and
after an uninterrupted intercourse with more
than two hundred of them for twelve nionths,

I feel no hesitancy, in, giving it as.my opinion,
that Dr. Baker had be.en before, and was at the
time of the murder,,affected with monomania,
upon the subject of his wife's chastity, and
ideas naturally connected with it ; with symp
toms indicating a strong tendency to degen'e-
raie into general derangement. ' '
I would' further state^ as my opinion, that
there can be no doubt that there are many
cases, iu which the most acute observation
fails to detect disorder of the understandiijg
upon more than a single idea or train of ideas.
Exainples of such are reported by all the best
authors upon the subject, and I have had un
der my charge a number of them. And I can
from my experience, join heartily in the state
ment advanced by one versed- in this subject
" That all cases of crimes of violence, in-
which previous mental disease is- proved,.
should have the whole benefit of the presump
tion that such disease may, in a moment^ run
into irresponsible mania, and the unhappy
patient be judged fit for confinement apd nbt
for punishment."
With the facts of the case before me, I
should feel that I, was omitting a duty to jus
tice and humanity, to Avithhold my earnest re
commendation of Dr. Baker, as an object de
serving-, if not demanding. Executive cle-
mencV. JNO. K. ALLAN.
Superintendent Ky., Lunatic Asylum.
His Excellency, William Cwsley.
Louisville, 'August lst,1845.
To His Excellency, William Owsley,
Governor of Kentucky :
Sir : — We, the undersigned, would respect
fully represent to your Excellency, that after
a careful examination of the testimony taken
in the case of Dr. Abner Baker, charged with
the murder of Daniel Bates, we are of opinion
that said Balcer is of unsound miud, and con
sequently a fitter subject for a lunatic asylum
han for tlie gibbet.
We havo the honor to remain
Your Excellency's ob't servants.
CH. CALDWELL, M. D.
L. P. TANDELL, M. D.
H. MILLER, M. D.
S. D. GROSS, M. D.
Lano.istkk, July 24fli, 1845.
To His Excellency, William Owsley :
Sir — Having been called upon to examine
the testimony adduced ou the trial of Dr. A.
Baker, (who is now uuder sentence of death,)
we proceeded fo do so in as thorough aman
ner as tlie cicrunistauces -would allow, and
have unanimously come to the conclusion,
from the extraordinary character of the testi
mony of the case, that the said Baker, at the
time of committing the crime for which he
now stands convicted, must have been labor
ing rindcr that foriuof mental alienation called
monomania. That there is such a disease is
not questioned by any scientific man of the
present day. We would, therefore, I'espect;
fully direct the especial attention of the ,Ex-

TLIAL OP DE. ABNER BAKBE.

289

^cutive to the facts of the case, and implore
the interposition of his po'wer.
Respectfully, your friends, &c.
O.P. HILL,M. D.
WM.H. PETTUS, M,D.
JENNINGS PRICE, M. D.
L. M. BUFO-RD, M. D.
The undersigned Rhysicians of Danville,
having, been called to examine the evidence
submitted to them, as given before the Circuit
Co'urt of Clay County, Kentucky , in the case
of the Commonwealth against Dr. Abner Ba
ker, tried for the murdei'Jof Daniel Bates-which
evidence was written out by Alexander R.
McKee, Esq., clerk of Garrard county, present
at tha trial — are, on due consideration, unani
mously of opinion that the said Abner Baker
was, at the time of the killing of Bates, and
for some time before aud subsequently, labor
ing under monomania, in a very marked and
severe form, and as such we recommend him
tothe clemency of the Executive'.
D. J. AYRES, M.D. -"'
JOHN TODBrM..D.
JOS. WEISIGER, M.D.
WM. PAULING, M,D.
JOSEPH SMITH, M.D.
J. HOLLINGSWORTH, M.D.
R. W. DUNLAP, M.D.
FRAXEFOai;, Aug. 11, 1845.
, We, the undersigned; Physician^ Of Frank
fort, after a careful examination of the testi
mony ir. the .case of tli!e Commonwealth against
Dr. Abner Baker, on liie charge of the murdef
of Daniel Bates — ^of w^ich the said Baker noAV
stands couAricted in the county of Clay — are
unanimously of th6 opinion, that said Baker,
previous to and at t'ne time of the committal
of said act, was laboring under mental de
rangement. J.;S'G. ROBERTS, M.D.
CHAS. G.PHYTHIAN, M.D.
LUKE P. BLACKBURN, M.D.
LEWIS SNEED, M.D.
A. F. MAGURDY, M.D.
i;. H. WATSON, M.D. , 1845.

NicnoLASviLLE, July 25
lion. William Owsley : . , ,
Dear Sir : — At the request of a friend of
Mr Abner Baker Sr, I have examined the
testimony in the case of Mr. Abner Baker.
The record was submitted to me that I might
give my opinion as to the sanity of Dr. Baker.
it is due to myself and the parties to ?tate
that from the rumors which I had heard of thc
circumstances attending the death of Mr.
Bates, my opinion was that it was mur
der most foul ; and I believed that the acquit
tal of Baker was the result of effort and the
influence of wealth.
I, howiiver, had not gone through the testi-
mo'ny introduced by the prosecution, before I
became perfectiy satisfied .that; Dr. Baker was-
a madman. . :,,,,,.
I am confident that it is impossible that any
man can examine the evidence of Mr. James
37

White, without being ^satisfied that no mau
could speak to a father, of his child as he
spoke, and give utterance to such absurd
chai'ges against his own wife, who was sane.
The statements of all the witnesses, especially
Dr. H. Baker, go most conclusively to prove
this fact, that Dr. A. Baker was, and is the
subject of monomania — a disease as well
known and clearly defined (though strange
and unaccountable) as fever or any thing
known to exist. In my practice, I have met
with cases as singular, but not more perfect
than Baker's, and I would as soon have thought
of passing sentence against an infant or an
idiot as against Dr. Baker, with evidence as
set forth in the record.
I am. Sir, with great respect,
A. K. MARSHALL, M.D.
I have also examined the testimony in the
case of the Commonwealth against Dr. A.
Bakej,J-BTrc5niiection with Dr, A. K. Marshall,
of our towiij and fully concur in his opinion
as stated to you in the foregoing.
W. J. BALLARD, M.D.
To His ExcelleUcy William Owsley,
Governor of the Commonwealth of Kentucky:
The undersigned, Attorneys at law, were
present (but not employed by either party) at
the trial of Abner Baker for killing Daniel
Bates, and heard all, or much the greater part
of the testimony introduced, both on the part
of the Commonwealth and the Defendant, and
from the testimony so introduced, we were
fully convinced of his derangement, at the
time he killed Bates, aud also that he had been
deranged for some time pjior to that act ; that
he has been ever siuce, and is now, in a state
of mental derangement, both upon the subject
of his wife's inconstancy to him, and of Dan
iel Bates having been too intimate with her,
and of his (Bates) contriving plans to have
the said Baker killed.
We further state, that every witness who
testified to anything bearing upon the case,
disclosed some fact conducing to show that he
(Baker) was laboring under a state of mental
derangemeiit, and -we were utterly surprised
and astonished at hearing thejury had brought
in a verdict of " guilty," contrary to the law
and evidence in the case. In fact, we did
not think that the jury would hesitate ten
minutes in agreeing to a verdict, of "not
guilty." We therefore petition your Excellency to in
terfere in his behalf, to extend the Executive
clemency to him and release him from the ver
dict of the jury, and the judgment of the
Court. LEWIS LANDRAM,
J. BURDETT,
L. F. DUNLAP,
B.H. DENTON,
Lancaster, Ky., July 19, 1845.

Lexingtos, August 8th, 1845.
Gov. William Owsley ;
Dear Sir : — I have been requested to give
my views as to the effect of monomania upon

290

TRIAL OP DE. ABNEE BAKER.

the criminality of acts committed under its
influence. The principle laid down in , all
the books is, that insanity must proceed to
such an extent as to disable the person from
distinguishing right from wrong, and the de
fence must we well made out. There is cer
tainly no disputing either of the propositions
above stated. And 1 believe juries should al
ways convict where the defence fails in either
point, leaving to the Executive the discretion
given him by the Constitution of distinguish
ing and giving pardon, where the reason is
only partially wrecked, and guilt palliated,
but not entirely taken away.
In the application of the above principles,
I entertain no doubt that if a monomaniac,
under the influence of an insane delusion kills
or does any other act, is not criminal, though
on other subjects he could scarcely distinguish
between right and wrong. I admit the case
of Billingham would seem to be, in some mea
sure, opposed to this ; but in that, case the
law was correctly laid down, the en-of Avas in
its application, for Billingham killed Percival
under au insane delusion, and believed in that
act he was doing right, and the chief .error
was by the jury. His conviction and execu
tion must b': regarded rather *as a political
than a judicial action b,>' the Courts of Eng
land. It has received tlie reprobation of emi
nent jurists, and I have read an able and clear
vieAV given of it by Lord Brougham, (I think)
but am not able to lay my hands on it at pre
sent. Practically the case of Billingham has
been oveiTuled in the strongest manner in the
trial aud acquittal of the monomaniac that'at-
tcmpted the life of the Queen.
It seems to me that it follows as a mathe-.
matical truth, that the only inquiry is, whe
ther the act done was an act of insanity. If
it was, it cannot be with a " felonious intent."
And this renders it wholly immaterial Avhe
ther the reason was wrecked generally, or only
on the particular subject Avhich produced the
.let. I knoAV nothing of tho case for which it is
desired that these Views should apply. But 1
Avould add that I consider that there are many
cases in which I believe it would be right that
the jury should convict, but in which pardon
should bo extende'd by the Executive. Where
a real and well founded doubt exists in a com
munity, on the subject of insanity, the execu
tion of such person can produce uo beneficial
effect. His death is apt to change doubts into
certainties, and it is highly prejudicial to .all
future trials that a general belief should ex
ist that a man, innocent in law had suffered.
Respectfully, yours, &c.
M. C. JOHN?ON.
I had occasion lately to examine the subject
upon Avhich the above opinion is expressed,
and concur with the views therein expressed.
A. K. WOOLLEY.
I concur in the above views.
¦¦• C. S. MOREHEAD.

I think the above views of M. C. Johnson
so clear and correct that no two men would
differ in regard to them. ,„ , ^
' GEO. B. KINKEAD.
To His Excellency, William Owsley,
Governor of Kentucky :
Y'our petitioners state they have been ac
quainted with Dr. Abner Baker, who is con
victed for killing Daniel Bates, and Avho we
present to your Excellency as an object 'of
mercy, and one wlio wo believe is not subject
to the penalty of the law. We state that Dr.
Baker is by nature a high and lofty minded
man, as incapable of stooping to a low and
mean act as any manliving — ^his capacity and
qualification fine — ^he promised to be use
ful to himself and society— his prospects
were fair and promising. Among tho
people, he was popular^ beloved and respected,
both as a man and a physician.
But the Lord laid on him his afflicting haUd
— his mind was impaired and exhibited signs
of derangement which increased and was de
veloped in the destruction of D. Bates. We
stated that previous to this unfortunate event,
and at the, time, he was under such a state of
derangement, that he had no control over his
mind — he did not imagine, just as the notion
would flit across his deluded mind, and which
was palpably wrong was perfectly right, as
the killing of Mr. Bates ; and that individual
contemplated his death, and that combinations
were formed against him for evil — and that
his father and mother and |his best and near
est friends Avere his greatest enemies. No
reason or argument could change his mind.
He has no reasoning mind on certain subjects,
-rt^hich is fully presented in the documents be
fore you — we mean the subject of his wife and
Bates, (Sec. Here it is plain he believed
that which was evidently wrong in the sight
of God and man, he firmly, under his delusion,
believed to be right. It is then clear to every
rational mind that said Baker did not knoAV
right from wroug, as to the object of his at
tack, and then not responsible for the act, and
so innocent of the murder of Bates, it having
been the effect of insane delusion. He was
evidently excited by Bates' threats, as proved
by more than one witness, and was beyond
doubt, irresistibly compelled under his de
rangement, and he had no rational control
over himself to prevent the deed at a moment
when, from the threats of Bates, or the infor
mation of Cobb and Morris, two witnesses, he
was excited in a high degree aiid believed
that Bates would kill him if he did not pre
vent him by killing Bates first. We believe
that deranged persons aie capable of excite
ment, anger, and revenge, Several of the
subscribers have seen Dr. Abner Baker from
time to time since his conviction, .and we be
lieve he is still a deranged man, and that lately
he has attempted his life. And We further
believe it would be murder to inflict the sen
tence of laAV upon him. We further state that,
said Baker's deluded mind may be clearly
seen iu this : He believed that Judge Rob-

TRIAL OP DB. ABNER BAKER.

Wl

ertson and John Moore, two lawyers that ap
peared for him, came to Court and designed
to have him convicted. He regards them, uu
der his delusion as his euemies"
We therefore beseech your excellency to re
consider the case of said Baker and grant him
a pardon, which, we have no doubt, will meet
the public approbation,
THOS. T. GARRARD,
WILLIAM GARRARD,
DANIEL GARRARD,
J. H. GARRARD,
S. M. WILLIAMS,
W. H. YOUNG,
' From observation and testimony, we be
lieve every fact stated in the above petition,
to be true.
S. C. PEARL,
HUMPHREY T. JACKSOjT.
ABRAHAM BAUGH,
THOS. POPE.

LEXDtGTOif, 20th September, 1845.
My Dear Sir : — I have just received yours
of this morning, informing me that the Go
vernor had authori'.ied you to say, " upon con
sideration of the petition presented to him the
day before yesterday by Capt. Baker and his
son Hervey, he is of the opinion that he has
no ofliicial authority to institute, or direct any
inquisition or legal inquiry as to the sanity or
insanity of Dr. Abner Baker, or to order his
removal from his present place of confinement
for the purpose of any such inquisition. These
matters, he thinks, belongs to the judiciary,
and to them must be left the duty of applying
whatsoever proceeding or remedy the law al
lows. The Governor further says, he toould he
glad to hear the grounds upon, which you sup
posed him autltorised to institute such an inqui
sition, or to remove Dr. Baker."
Availing myself of this invitation by the
Governor, I wiU, through you, as his selected
organ of communication on this occasion, sug
gest the general considerations which induced
me to suppose that he has legal authority to
do all the petition alluded to requests him
to do.
1st. If a m.in, sentenced to death, be in
sane after judgment, the law requires that he
should be respited until he shall become com
pos mentis — and his execution, when insane,
would be wrong and inconsistent with the
policy and justice of the law.
Snd. In England, the Judge has power to
respite on the ground of insanity whenever
that disability can be pleaded against enter
ing judgment, because thc case is still open
and under the power of the court. But here
in Kentucky the judgment fixes the time and
place of execution, and gives the only war
rant for execution : — and consequently, after
such judgment and the' final adjournment of
the court, the judge who rendered the judg
ment, is, as to that case, functus officii, and
has no more jurisdiction over it than any other
circuit judge of the State. And it is worthy
of grave consideration whether, after the judi

ciary has thus exercised its judgment and
consigned the convict to the executive depart
ment, it can exert any other power in the case.
In some of the States of our Union, and in
NeAV York especially, there is statutory provi
sion for trying the questioii of insanity in
just such a state of case. But there is none
such in Kentucky. Aud 1 apprehend that
here the only object of an inquisition would
be to subserve the power of respiting or par
doning by the Governor. The only reason
why insanity, after sentence, should suspend
execution is because the insensate is not in a
proper condition for prosecuting his claims to
a pardon. 3rd. In Kentucky, has not the Governor
alone power to suspend execution after judg
ment and the adjournment of the convicting
court ? The prisoner is then iu his exclusive
custody — for he is the head of the executive
department, and the jailor is but his subaltern
agent or minister, and is subject to his super
vision and control. And who but himself can
change that imprisonment, or rescue from
the judgment as rendered ?
4lh. As the Governor has the sole power to
pardon and liberate the prisoner, either abso
lutely or conditionally, he surely must possess
all subordinate or subservient power compre
hended in, or subsidiary to the exercise of this
plenary power./ If he Can liberate him un
conditionally, h^ can certainly do so on condi
tion that he be found a lunatic and be placed
in the Asylum; and consequently, as the pri
soner cannot be placed in the Asylum with
out an inquisition, the Governor can authorise
the inquisition and the prisoner's removal so
far as it may be proper — and if the inquisition
find the lunacy, the Governor can alone remit
the imprisonment and punishment adjudged
by the court, and authorise aud conipel the
jailor to surrender the custody of him, and
deliver him to a different custody. And this
he can do under his exclusive power to respite
aud pardon.
5tth. Why, without the authorisation of
the Governor, would a judge hold an inquisi
tion, when, eveu if the prisoner be found a lu
natic, the judge cannot remit the judgment of
conviction, nor substitute any other custody
than the legal imprisonment adjudged against
him ? The judiciary, in the case of Dr. Baker,
has no power now to suspend or remit the
punishment .adjudged against him. The only
constitutional power is inthe Governor. It
seems to me, tirierefore, that the Governor un
doubtedly possesses and ought to exercise the
authority tb direct the inquisition which has
been called for by the petition, as he alone
can give the full and proper legal benefit of
a finding of lunacy, andno oae;but himself can
know what he will do in the event of sueh a
finding, which can havu uo beneficial effect
unless he shall choose to grant a respite or
pardon, and which finding may also bade-
sired by him to enable hun to decide wheUier
he ought to grant a respite or pardon.
6th 1 apprehend that a habeas corpus from
a judge would not be obeyed without the Go-

292

TRIAL OE DR. ABlfER BAKER

vernor's endorsement — and if he have power
thus to effectuate it, he must have power to
direct the removal for the same purpese with
out the judicial writ, which, without his oon-
currencey, would be ineffectual. And if a
formal Avrit shall be required, (though I can
not imagine why,) may not the Governor Say
to the jailor that, in the event of its being pre
sented to him, he shall obey it ? And why,
and for Avhat end, or with what hopes, should
an application be made to a judge without the
Governor's official sanction and co-operation ?
No judge now can have jurisdiction to hold an
inquisition for any other purpose than to en
able the Governor to grant a respite or a con
ditional pardon and change of custody. Ought
not the Governor then to institute this inquiry
— and can it be either legally or availably
had without his direction for the purpose of
subserving his official action?
7th. Having said that there is no statute of
Kentucky providing for a judicial interven
tion in a case of insanity after judgment of
conviction, may I not now, add that our habeas
corpus statutes constructively deny the power
of a judge to issue a habeas corpus in favor of
a convict imprisoned under a final judgment
for felony, and murder especially ? See act
of 1797.
In such a case there is no revisory power
nor any authority to 'prevent execution else
where lodged by our law than in the Execu
tive. And should a Judge strain a point and
issue such a writ, arid hold an inquisition
finding lunacy, what will he then do with the
prisoner ? He cannot avert the sentence of the
law by depositing the prisoner in an Asy
lum — for, by putting him there, the judgment
is suspended or nullified — and the constitu
tion concedes this power to the Governor only.
For what purpose then will he hold the inqui
sition ? Certainly there can be no other than
to furnish to the Governor a new fact entitling-
the prisoner to a suspension of the judgment
and a change of custody, which the Go
vernor alone can order. And how does the
Judge know that the Governor desires this, or
will recognise, or act on it ? And after the
inquisition, what is he to do with the prison
er t And whence did he derive authority to
take him out of jail ? And suppose the pri
soner shall escape. Who will be responsible 1
He took him from Executive custody without
authority, and had no such power of .safe
keeping as the Executive magistracy had.
But if the Governor order him to be brought
out for inquisition and he escape, there can
be no complaint, because he was still, as be
fore, in the Governor's custody, and might
have been constitutionally liberated by him
altogether. It seems to me, therefore, that the Governor
now has exclusive power in the case, and I
cannot doubt that it is sufficient for every pur
pose of respite or pardon, absolute or condi
tional. Having the exclusive power of respite
and of pardon, he must have the power to
employ all non-prohibited means which may ..  „^^ »ur outu uiuei
be necessary and proper for enabling him to I ever came from the Governor.'

exercise this unqualified power under-
standingly, justly, and effectually. But, if the
Governor persist in a different conclusion, we
must try the Judiciary. And 'in that event, may
ice expect an Executive' order tothe jailor io
obey the mandate of the Judge ? *
¦These, sir, are, very hastily, ray general
views — and which I desire you to submit to
the Governor in his official capacity. I have
no other authorities than the reasons I have
suggested and the probable and almost
certain and very singular circumstance
also that, Avhile the Judiciary cannot act with
out executive authority or sanction in advance,
if the Governor, doubting his own power,
shall refuse to act, a man known to be insane
may be unjustly hung to the discredit of the
Commonwealth, to the mortification of its just
citizens, and to the disparagement either of its
functionaries or its jurisprudence.
We care not about the form of the inquisi
tion — whether it be by the Governor's own in
spection, or by proof, or trial. But an inqui^
sition we ask, and to one, in some form, we
are, as we humbly thipk, undoubtedly entitled.
And we are sure that we cannot procure one
without- Executive sanction, and co-operation
nor for any other end than Executive informa
tion and action. Yours, &c.,
G. ROBERTSON.
To Hon. John J. Crittenden.
[A true copy.] Sept. 29th, ,1845.
Dear Gov-ernor : — If you intend to permit
my son to die, fer God's sake intimate it to
me, and relieve me from this suspense.
A. BAKER.
As soon as it was ascertained that the Go
vernor had declined extending his^constitu-
tional power to pardon Dr. Baker, and that he
had further declined issuing the writ of in
quiry — alleging that this power was vested in
the Judiciary only — ^application was made to
Judge Buckner for that inquisition. The fol
lowing letter will explain the purport of this
petition and the response of Judge Buckner.
Lexington, Oct. 1st, 1845.
Dear Sir : — Application has this day been
made to me on the petition of a Mi . Baker, sr.,
for a writ of habeas corpus in favor of A. Baier,
jr., noAV under sentence of death by the judg
ment of the Chay Circuit Court. The object
of the petition is to have an inquest of lunacy.
The effect of lunacy at the commission bf the
trime has already been tried, but the petition
charges that he then labored under monoma
nia, but that it is now total mania.
I am of tho opinion that I have the power
to hold such inquest, and would grant the
writ, if it would not interfere with the execu
tion of the sentence of another Court, If he
were now of unsound mind, it could be of no
avail, unless you should thereafter think proper
to interfere. But if you shall think proper to
Neither any such order, nor any answer

TRIAL OP DR. ABNER BAKER.

993

respite ihe execution of the sentence, I will
grant the writ and direct the inquest as a means
of ascertaining a fact to satisfy your mind.
The object of the suspension, at this time, is
only to give time to hold an inquisition.
Yours, &c.
R. A BUCKNER, Jr.
G«v. Owsley, Frankfort, Ky.
When the above letter was presented to the
Governor, he observed that he would consider
of it by morning, (Thursday one day preced
ing the execution.) It was represented to
him that it Would be impossible to reach

the prisoner in time to suspend the executiouj
if he delayed granting the respire until the
next day. He then remarked ho had decided
the case and would not take it up again — and
when he was informed that the friends of Dr.
Baker had been induced to believe that he in
tended to grant a pardon or further respite,
from the impressions made by him on Dr. Ba
ker's friends and his own relatives — and that
he was awaiting the arrival of General Dud
ley before he could decide upon the case — the
Governor replied that he had " never intended
pardoning Dr. Baker," that he had " no idea of
turning him loose upon the community,"

MR. ROBERTSON'S SPEECH.

The wreck of God's image now before you, I
under trial for murder, entered the threshold
of manhood with hopeful prospects of a long,
useful and honorable life. Richly blessed
Avith personal graces and mental 'gifts, he cast
his lot among you, and commenced his pro
fessional career, as you all knoAv, under a clear
sky, beaming with gilded promises. But how
deceitful often are the brightest hopes of men.
Already he, whose young horrizou Avas so re
cently bright and promising, trembles on the
precipice of a yaAvning gulf, uuder a black
cloud that hangs portentous over his destiny.
Doomed to the greatest of earthly calamities
— au eclipse of miud — and, as a consequence
of that tremendous misfortune, doomed to be
the blind instrument of a brother's death — he
is nOAV also doomed to an ordeal rare, if not
unexampled, in a land of justice, liberty, and
law. The man he killed, influenced on his death
bed by a strange spirit of revenge, bequeathed
§10,000 to insure his conviction aud execution,
promised freedom to a slave on condition that
he would slay him, and, as a legacy to his own
infant son, charged him to see that his victim
should certainly fall by the hand of vengeance.
Although , he was tried and acquitted by an
examining Court on the ground of insanity,
and was then sent by his friends to a southern
climate for the improA'ement of his health, yet
the Governor of Kentucky, at the instance of
some of the kindred of the deceased, issued a
proclamation advertising him as a fugitive from
justice, and the prosecutors offered a high re-
Avard out of this legacy of ¦'^10,000 for his ap
prehension. As soon as his honorable father
saw that proclamation, he brought, his unfor
tunate son to the jail of your county, in Avhich
he has ever since beeu most uncomfortably im
prisoned at the peril of his life. But here he
^s, voluntarily surrendered for trial in the
midst of a high aud pervading excitement
against him, produced, we know not hoAv, in
the county of his numerous, Avealthy, and in
fluential prosecutors — relatives of the deceased,
and one of them the husband of a sister of the
accused. And to such au extent have this ex
citement and prejudice run that it is not possi
ble to be sure of a sober aud impartial trial;
for you know that even each of you avoAvcd on
oxaminatiou, that you had formed au opinion
as to his guilt, and avc all behold .armed men
wherever we turn our eyes.
Yet, confident that the law and thc facts
ought to insure his acquittal, his friends dater-
mined to hazard a trial even hero and now —

believing that no honest and enlightened jury
can, afte'r a' full hearing, ffeel authorized to
find him guilty of murder, as charged.
But the legacy of blood must do its full
work — and as one of its fruits, we behold the
appalling spectacle of four able counsel all
zealously seeking, in the name of the Com
monwealth, the life of the accused. Appre
hensive that the official organ — though known
to be faithful and competent — mightmot exert
a moral influence sufficient to insure the object
of the legacy, the prosecutors have employed
the celebrated gentleman of Madison — not still
sure of their victim, they also employed the
eloquent gentleman of Knox — and, "to make
assurance doubly sure," they have added to
this formidable array the shrewd and dexter
ous gentleman of Laurel. Haying already
the prepossessions of the county of trial, they
have thus secured, as far as they could, the
combined influence also of Madison, Knox, and
Laurel. And you have seen this four-horse
team pulling, as for their OAvn lives, the heavy
load of this prosecution, and, at every up hill
step of the hired three, you might have heard
the Avhip of thi. $10,000 crack over their
heads. We do uot complain thatthe CommonAvealth
is represented by extra counsel — nor do we
object to the unusual number. But we do
rightfully complain that the hired supernume
raries have argued this case — not soberly and
solemnly on the law and the testimony — ^but,
by leaving the field of legitimate argument,
and, by assumption and declaration, stmggling
to inflame your passions aud deceive your
judgment. It is a melancholy truth that, in
some respects, they have all argued as if they
Avore speaking to earn contingent fees and
please their clients, instead of faithfully and
candidly representing thc commonAvealth. —
And, thus seeing money in oue scilc and blood
in the other, Ave have cause to fear that the
money Avill outiveigh the blood, and that our
cause may sink under tho Aveight of a com
bination unsurpassed iu actlAnty and Avcalth.
'The gentleman from Madisou, Avho opened
the argument, devoted at least one hour to
the irreloA-ant purpose of proving-the alarming
proA'alcuce of crime and immunity, and the
importance of convicting and hanging "one of
ihe ruffle-shirt gentry," aud especially "a Doc
tor or a Lau-i/er." "Was he then representing
the CommonAvealth'? Docs she desire unjust
conviction by such appeals? And when tho
law aud tho facts require conviction, is it ever
necessary and proper ^or her to make the

THE TRIAL OP DR. ABNER BAKBE.

S95

demagogue's harangue? The guilty should i
be punished, and I know that too many have
escaped. Butit is the art of lawyers, chiefly,
and not so much the ignorance and eoinpas-
sion of juries, that has paralyzed the criminal
law. And my friend from Madison must al
low me to remind liim that no criminal advo
cate within his range of practice has been more
instrumental than himself iu preventing the
condign punishment of the guilty. And I am
not sure that his resort, iu this instance, to
his accustomed arts iu defence of criminals,
may not do for the Commonwealth Ai'hat he
has so often done against her — produce an un
just verdict. I am for upholding and enfor
cing the laAV. ¦ But does not this gentleman
know that the laAv is made for the protection of
the innocent even more than for the punish
ment of the guilty? We too,invoke the Iuav —
and in its name, and uuder its panoply, Ave ask
for an acquittal; for Ave feel that nothing but
God or the law can save the accused from the
powers of destruction that are combined agaiust
him. It is not mercy so much as money that
has effected the escape of criminals, and tiiorc-
by encouraged crime. And thc only danger
npw is, that money may produce the opposite
result — the condemnation of a guiltless man.
And does the gentleman, suddenly changing
from the advocate to the prosecutor, expect
to restore the laAV he has so much helped to
paralyze, by hanging an insane man? And
why does he so Avish? Why now shall insani
ty be hung? Aud why has guilty sanity so
often escaped the gallOAvs through the gentle
man's influence? "The love of money is the root
of all evil!" It is- this, more than anything
else', that saves the guilty — and it is this, too,
that tho accused iu this case has most to fear.
Tho same counsel, not being able to meet
fairly the conclusive testimony of Dr. Richard
son, assumed that he is himself rather insane
on the subjects of phrenology and mesmerism
— and told you that these "Lexington Doctors,"
oue of Avhom Avas brought here "to enlighten
and astonish ignorant mountaineers," could look
at you and through you, and feel your pulse
aud your head, and "then tell. you all you are,
and all you think andferl." Is this a grave
argument of our just mother, the Common
wealth? Was there any testimony which
could give even a color to these improper as
sertions? / knoAV that Dr. Richardson has
no faith in mesmerism, and but little in phre
nology. -And, though he is a Lexington Doc
tor, I presume that truth from his lips Avill be
as true in the mountains as in his own city.
But he is "an enemy to free government," said
the gentleman. And what if he be? Does
this impair the force of his evidence or tend to
prove the guilt of the accused? I Avill tell the
accuser that Dr. Richardson is as devoted to
thc free institutions of his country as he him
self, and was risking his life in the North
western army, in the year 1£13, when wewcTe
both at home learning or practising law, But

such a course of argument as this should be
an.5AVeredin a manner mqro light and ludicrous;
and I Avill, iu that Avay, give it and much else
like it, the finishing blow by an appropriate
aneadote. When the steam locomotive fir.it
began to run from Lexington to Frankfort, a
little curly-headed and horned animal Avith a
bobbed tail, Avhile grazing on the poor lands
near the latter place, seeing a car approaching
him with its accustomed force and A^olocity,
aud thinking that this great "Lexington" ma
chine was no better than himself — though only
a scrub of the Franklin hills — fixed himself in
the track and, draAviug himself up for battle,
gave it a triumphant butt as it approached him;
and, as might have been expected, he Avas
thrown several rods and effectually "used up;"
at, the, sight of which ,i ycuerablo gentleman
exclaimed, that he admired the animal's cour
age, but thought very badly of his discretion.
NoAV, Avhoever lias thc temerity to butt against
the Lexiufjtun Doctor and ridicule thc facts
and the law on which Ave rely, should rcmom-
,ber the doom of the short-tailed bull. On
this subject let thc coun.ijel take this conp de
grace. But the gentleman from Knu.r, after pouring
on you floods of elonuence, endeavored to
alarm you by telling ynu that, like Hannibal,
young Bates had made to his deceased father,
a solemn pledge to avenge his Avrongs — and
that, as Hannibal had 'sworn that lie Avoiild
destroy Rome, this youth had .isncrA-ated
that he Avould kill the prisoner .it the bar —
thereby intimating tliat ytm ought to hang him,
to prevent his being shot! And does this, too,
come from tho mouth of the Commonwealth?
It is not only extraneous but signallj^ unlucky.
Let it be remembered that, after the battle of
Canno'. Hannibal was compelled to desert Italy
— Scipio ccirrieilthe var Into Africa,vanq}x\she&
him at Zama, drove liiin to inglorious exile
and death, and destroyed Cartilage — and that,
years afterAvards, Caius j\[arius of Rome, sat
a hopeless exile, on its melancholy ruins. Wc
desire peace. Wc" appeal to the laiv. There
have been war and bloodshed enough. But
if the menaced crusade against the life of thc
accused shall be laAvlessly-Avaged, then, too,
the Avar may be carried into Africa, and a
proud Carthage, instcadofdcA-oted Rome, may
fall never to rise.
The gentleman from Laurel also has gone
out of the AVay to excite and deceiA-e. He has
read to you the Mosaic laAV on homicide, and
shown you that, by that laAV, the manslaycr
could legally escape tbe nvenger of blood
only by fleeing s.ifcly to "» city of refuge."
And does he Avisli you to understand that sucli
is laAV here? If it i>c, the accused has reached
a city of refuge. His country is that city, and
you are that couutry and tiiat refuge? And if
you will determine his doom from tiie laAv,
and I the testimony alone, avc feel that he
is wfe, and fear not the avenger of blood,

396

MR. EOBERTSON'S SPEECH ON

Instead of arguing the question of insanity,
the same counsel has also endeayored to ridi
cule the insane expression ofthe prisoner's coun
tenance, and said that it showed only the mark
of CaiVi. This idle assertion is contradicted
by the unansAyerable facts— and therefore these
have been ansAvered ohly in this unauthorized
manner. And in reference to all these unusual
efforts made by the three hired counsel, I must
be pcrmitled tOAA-arnthem that, in my opinion,
if the prisoner shall be hung, their hands Avill
be dyed Ayith his blood.
But, gentlemen, I am sorry that I felt it my
duty thus to notice fragments of tlic great mass
of extraneous matter that has been throAVn
into the argument of this case by the triumA'i-
rate counsel of the prosecutors. I knoAV that
all such irrelevant arguments indicate the Av.int
of those that are better; and therefore ought to
operate for us rather than against us. But
lest you might he improperly affected by tlicin,
duty to my client required that I should take
some preliminary notice of them. They shew
the spirit of the prosecution. I Ayill iiOAA^ pro
ceed to those facts and to that laAV, acco'rding
to Avhich you are sworn to decide this case;
and I Avill not again depart from them.
Our chief defence is insanity — though we
Avoiild not despair of his acquittal ofthe charge
of murder on the ground of aggraA-ated provo-
cation and, strong necessity of self-defence.
The CommonAvealth herself has proved that
the accused, antecedently to his niarriaqe, often
declared that Daniel Bates had maltreated his
OAVU Avifo (the sister of thc accused) by lying,
every iiight, for nearly a year, on the floor in
lier bedroom Avitli a negro Aveiich, and fre
quently going to his Avife's bed and drawing a
a boAvie knife across her throat and threatning
to kill her — that she invoked liis (her said
'brother's) protection, and entreated him to
remain at her house to save her life — that
Bates, understanding this, became, therefore,
very hostile to him, had conspired , Avitli, his
slaves to take his life, and had, in fact, attempt
ed his as.sassination. Aud it appears that, on
one occasion, the accused Avhen in the Ioaa'u of
Manchester, received a note from said sister
Avarning him not to return to their house that
evening, because, as she wrote, her liusband
Avas prepared Avitli guns to shoot him from an
upper room as he approached the house. The
Commonwealth having introduced these facts,
they are legitimate evidence, Avhich you have-
both a legal and moral right to believe. If
they be false, tho prisoner's belief in them is
evidence of his insanity; and if they be true,
they must operate poAverfully iu his favor.
'The fact that ho Avas ufldoubtedly insane, af
terwards, as to his OAvn Avifc and the imputed
connexion of Bates and others witii her, can
not destroy the credibility of these facts as to
Bates' conduct to his oAvn wife and his deter
mination to assassinate the accused; for a per
son Insane on one subject may know the truth
on another. Besides, there is intrinsic evidence

of the truth of all that the accused said and
seemed to believe respecting Bates' treatment
to his wife and himself — or he Avas undoubted
ly insane on that subject also; for, if fhe^^e
was no ground for his belief of them; Mere w
no adequate 'or even rational motive for his great
hosiil'itij to I}ates, and his suspicions of his de
signs on his life, before his marriage. Then,
not only have you a right to accredit them,
but in charity and justice, you ought to be
lieve them, as there is no proof of their im
possibility or even great incredibility. There
is no dispiTonf of any one of them.
Moreover, on the day of the catastrophe and
before the accused had reached tho fatal spot,
he Avas told by several persons whom he met
on the road, that, since he left Kentucky,
Bates had declared that, if he should ever re
turn, he Avould shoot him on first sight — that
he and his slaves carried guns for that purpose
— aud that he AvaS then at his furnace ori tlie
only road the accused could travel to Man-
thester, the place of his destination — and some
of those imformants urged him not to p^ss the
furnace until night. Being resolved, hoA«eyer,
not to leave the highway or hide hiinsejf and
steal along in the dark, he endeavored to|pro-
curc a gun, so as to hare some chance of de
fence againstthe guns of Bates and his sl.lA-es;
but failing in this defensive object, he went
on Avitii no other Aveapon than one of the
smallest pocket-pistols. Noav these simple
.and undenhable facts, forbid the presumption
tiiat the accused, before he heard them, inten
ded (if he then were sane) to shoot Bates Aylien
and A\-herc ho did — for, as a rational man, he
could not have hoped that he could be able,
alone, as he Avas, to succeed iu killing him at
the furnace Avith a small pistol and iit a dis
tance of eighteen yards. But as a sane man,
hearing Ai-hat he had, he must haVe apprehen
ded that, iu passing thc furnace. Bates must
see him before he could escape thc rann-e of
his' gun, and, so seeing, Avould shoot him'^mi-
less lie could, on a forlorn hope, accidentally
shoot Bates first Avith his pistol, and thus po.i-
.^-;^)((/ save his oavu life. If he Avere rational,
had ho not abundant cause for such apprehen
sion?— and did he not thus reason; think, aud
act to. save himself from destruction? If so,
the laAV, read on the other side, acquits him.
Was he guilty of cold-blooded murder? Who
could hang him on such facts?
But the fact that the accused incurred so much
unnecessary peril, and acted irith so much temer
ity is strong cvidcnre nf his insanity. And it is
not only probable, but almost certain, that, had
he been perfectly rational and self-poised, he
Avould not have passed the furnace as and
AVhcn he did, or 'that he Avould not liavc
shot Bates then, if ever— although wk' main
tain that he had a ight to pass the highA\-ay in
daylight, and to defend himself. Upon the
facts as proved, is not this case one of justifi
cation or of very strong mitigation, even if
the pnsoner had been as sane as you? But

THE TEIAL OE DR. ABNER BAKER.

$97

he was insane, aud this we Avill now endeavor
to prove.
Both the mmd aud body of man are, in the
ultimate sense, iucpmprehensible. Wo know
also that the physical element of our nature is
material and mortal, and Ave believe that that
Avhich is rational and moral is immaterial and
immortal. And consequently, man is the sub
ject of two distinct sciences — physiology^ or
the phenomena of animal life — and psycholo
gy, or the phenomena of the spirit or soul.
Vitality, Avhether vegetable or animal, we ean
not understand. The material organization,
wliich produces aUd sustains physical life, or is
produced and sustained by it, we may well
comprehend. But being so constituted as not
to be able to understand any ultimate ti-uth,
element, or principle, but only their phenomi
nal developments or results, Ave can know no
more of the principle of life than of that of
gravitation or electricity. W^e do, ho-weyer,
know that animal life depends on phA'sical
health — aud that derangement of the body,
whether organic or functional, is unsound
ness or disease. So also avc all know that
Ufe, even of the lowest gi-ade in the scale
cff animal existence, feels, perceives, remem
bers, and is self-conscious; and consequently,
it is not easy to discriminate the essential dif
ference, except in degree, between the mind of
a man and that which we may denominate the
mind of a horse. The distinctive difference,
as generally recogni'-sed, is that betAveen reason
aud instinct. The beaver, the bee, and even
the caterpillar, and every li-ving creature, pos
sesses the faculty, of adapting the means of ex
istence and enjoyment to the ends of that ex
istence andenjoyment. Tho silk-AVorm knoAvs,
and finds, and feeds on, the mulberry leaf, and
the calf aud 1!he child .ilikc knoAV, and find,
aud suck, as soon as bom, their mother's pap.
' This ' adaptive and conservative power, com
mon to meu and brutes, may be called the un
derstanding; and the healtii and perfection of
this depend necessarily ou the soundness and
perfection of the ph)^sical organism. But
man possesses a higher faculty— a poAver botlj
moral and intellectual— a capacity to know all
his. moral relations and obHgations, andto as
certain, bv analysis or induction, . abstract
tnith, mathematical truth, ultimate truth. It
is this that ennobles his nature and elevates
him above all other animated beings. I his
ennobling attribute wo maj;, for the purpose
of contradistinction, call reason. Many en
lightened minds believe that-the understanding
or mstinct of sound animal life is the offspring
Of oreanic matter, and is, therefore, material
and^erishable; and that the reason, pecubar
to man, is alone immaterial, and is, of course,
indivisible and immortal.
But it is not necessary here either to detam
or confuse you by speculative reasonings on
metaphysics, or by elaborated theories either
phrenological, physiological, or psychological;
every person knows that the mmd of man-
38

understanding, reason, aud all — as long as
that mind co-exists with the body, is affected
by the condition of the body; the theory of
dreams, and tiie infiuence of sickness, of infancy
and of old ago, on the miud, are alone sufficient
to prove that reason itself, hoAvever ethereal
and pure, is dependent on the perfection aud
soundness of the phy-sical organs, through the
instrumentality of which it acts and is acted
on in the entire drama of earthly existence.
All that is external is communicated to the
mind by the material organs of sense. These
are the heralds of the miud; and we are lo
constituted as not to be able to discredit the
testimony of our senses. Consequently, sen
sible facts are, and must be, as much accredi
ted as intuitive or self-evident truths; — and,
when the mind reasons or acts from these
premises, its deductions or its acts are inevita
bly Avrong whenever the premises are -wrong.
The brain, Avhich is the centre of the nervous
system, is the seat and throne of the mind.
If the reason be immaterial and immortal, it
cannot be unsound; but still, as it acts through
the miuisti-y of the brain, it must be either ob
scured, eclipsed, or dethroned by any un
soundness or disorgamzation of the brain. —
Whenever the brain is Unsound it will, to soma
extent, present to tho mind, false and delusive
images, which the reason necessarily believes
to be true, aud of tlie falsehood of which no
proof or argument cau convince it — because it
must believe that Avhich the senses communi
cate. When any organ fails to perform its
proper function, it is said to be unsound; and,
consequently, Avhen physical unsoundness is
the cause of false sensations, imagejs, or im
pressions, Avhich delude the reason or pervert
its action, the mind, dependant as it is, on the
body, is, to the extent of the delusion, said to
be — and certainly, for all practical purposes,
must be admitted to be — unsound. And this
is intellectual insanity. It proceeds necessa
rily from physical disease or derangement —
and is, therefore, nothing more or less thau the
morbid imagination of a fact which does uot
exist — for the supposed existence of which
there is no evidence that could possibly oper
ate on a sound mind — and of the non-exis
tence of Avhich no proof cau convince the
reason. If, for example, the brain or organ of
vision be so diseased as to present to the mind
an object as red, Avhich, in truth, is green, or
imprint on thc retina images of objects which
do not exist, the mind is inevitably deceived,
and, reasoning correctly from the facts and
premises, impels erroneous belief and wrong
actiou. And thus, Avhile the reason is sound
and thc reasoning correct, the conclusion is
false, because the foundation is deceptive— the
very source of thought impure — the prendses
imaginary and not real. And not only ia the
source of the delusion physical, but as long
as the morbid cause exists, it will be im
possible to undeceive the mind because what we
feel, or see, or hear, no extriniic argument or

^8

MR. EOBERTSON'S SPEECH ON

proof can convince us that we do not feel, nor
see, nor hear. And we must, reason and act'
as if what thus only seems to, us,, be, as it ap
pears to us to be, undoubtedly true. If, when
your ¦wife stands before you, a morbid condi
tion of thebrain, superinduced by some moral
or physical cause, imprint on your mind th6
vivid impression of a tigress, a flend, or a de-'
mon, no argument could convince you that it
is your wife you behold, nor prevent you from
acting as you would if indeed the object were
what jt seems to you to be. Your reason,
however clear and true, drives, you neverthe
less to false conclusions and erroneous conduct,
because, assuming false premises to be true, it
makes correct deductions from them; and the
delusion is uot in the faculty or process of
reasoning, but in the imaginatio.n of a false
fact, the necessary offspring of an unsound
condition of the seusorium. These delusive
.images, all produced by some physical de
rangement, are either illusions of the senses as
to external objects, or halluciuatioUs which
arise from the internal feelings or emotions of
a distempered body. . Thus from our own ob
servation, as well as authentic books, avo know
that, while the subject of delirium tremens im
agines that he sees furies, hobgoblins, ghosts;
aud demons— another victim of delusion feels
that his legs are glass, or, though a male, that
he is in a family way^another that he sees a
robber escape from his room through a key
hole— another ,'that he saAv a stranger to his
bed defile it in the illicit embraces of his faith
ful and affectionate wife — and another imag
ines conspiracies to ruin him, and plots to as
sassinate him by his nearest and best friends^
another believes that he is the savior of the
world — another, like Hadfleldj that his oavu
destruction is a hecessory offering to the
peace and happiness of mankind — another,
like the great reformer, Luther, imagining
that he is beset by the devil mcai-nate, there
fore throws his inkstand at his black majesty
aud thus drives him from his presence — and
another yet, feels like the great Paschal, the
author of the famous provincial letters, Avho,
while elaborating a beautiful solution of the
cycloid curve, had himself tied in his arm
chair, lest he might fall into a deep abyss,
whicli he imagined he sayv yawning beneath
his feet. Such illusions ofthe senses and hal
lucinations of the internal feelings are almost
infinite iu kind, as well as iu degree. And,
whenever they exist, their delusive influence
on the reason and the conduct of their victim,
within the sphere of their operation, is as ir
resistible as it is certain. In each of these
instances the delusion results from partial ex
citement or derangement of the brain, and in
each there is, at least, particular insanity -of
mind, or monomama, which is insanity cm
sonie one subject only, and which, as to that
subject and every thing connected with iit,
may be as entire and incapacitating as umve.r-
aal insanity or a total eclipse of the mijid

Avould be as to all subjects. Insanity of .mind,
like that, of the body,' may be partial eitlier in
the extent of jts prevalence orip its degree Of
intensity; And although the Court has inti
mated and the counsel engaged for the Com-
mjsnwealth has said that there is no such thing
as monolriiania, I am prepared to prove it by
argument and an appeal to observation, andjto
show also, that there is, not, a treatise extant
on insanity, or on medical jurisprudenpe, Ayhich
does uot recognize and define it. , I know that
the vulgar notion of' ipsanity supposes fury
and total' deprivation of^ reason, and I know,
too, that it is not easy to convince the popular
mind that a person is insane who can reason
well on most subjects. But both scjence aud
law recognize particular, insamty while the
victim of it may be apparently sane and ra
tional on all other subjects than that in re
spect to which there is insane deluslQU. And
this mental derangement which is partial in
the extent of its sphere is, iu its various kinds,
the most prevalent form of insanity, intellectu
al or moral. It fills the lunatic, asylums^-
and there is not one. of them in which a ma
jority of the patients do not belong to that
class, in one form or another. It is no. new
thing, therefore, and I am surprised, to hear
any Avho profess a knowledge of jurisprudence
speak of it in a spiiit of iticredulity and ridi
cule. ^
A few quotations will impregnably estabhsh
all, Ave have said or shall ask you to believe on
this, interesting subject, Esquirol was super-
intendant, for 40 years, of the lunatic asylum,
at Charinton in France. He was an eminent
medical philosopher — devoted extraordinary
attention to mental unsoundness in all its va
rious forms — and his elaborate and learned
treatise on insanity is, therefore, not only en
titled intrinsically to unusual respect, but is
referred to as a standard authority by medical
andlegalmen. Ray's "Medical Jurisprudence?'
is also entitled to great respect — because it is
an American production of ' extraordinary
ability, and is devoted altogether to the single
subject of the medico-legal character and ef
fects of insanity. On these two books, there
fore, I shall chiefly draAA'.
And here let me premise that modern Avri-
ters on insanity, and even many jurists, recog
nize a morbid derangement of the moral fac
ulties as distinct from that of the intellectual.
How far any such merely moral insanity may
exist without some intellectual derangement
also, I do not pretend to know. But I
do not doubt that, as our moral and in
tellectual natures are indissolubly associated
and intertwined, moral derangement is the
necessary consequence of intellectual iusanify,
and is co-extensive vrith it. For example,
when thc mind of Hadfield, in consequence of
some morbid derangement of his brain, labored
under the insane delusion that , he must offer
himself a sacrifice to the welfare of his race,
and, being opposed to suicide, he therefore de-

THB TRIAL OF DR. ABNER BAKER.

S99

termined to assassinate his sovereign, George '
III. as the certain precursor of his oavu execution
for murder and treason, I doubt not that his
moral nature was also so far deranged as to in-
dueehimto believe that, though murder was a
crime, yet, iu that particulaj case, ho Avould be
guilty of no violation ofthe law of God or of man,
orthe delusioumusthavebeenso overwhelming-
as te have destroyed all moral resistance. And
such -was the argument of his counsel and must
have been the opinion of the jury who acquit
ted him. How far moral insanity, if there be
such a thing alone — such as — pyramania, or an
irresistible passion for incendiarism — or eroto
mania, or an insane propensity for sexual in
tercourse — or kleptomania, or an overwhelming
temptation to steal^ — should exculpate its ¦yic-'
tim, I am not prepared to say: That it should
excuse a criminal act in any case, without any
proof or presumption of intellectual delusion
also, I cannot venture to assert. But I do
Tuamtain that, whenever there is any such
moral insanity, it is either the pai-ent or the
offspring of an associate intellectual insanity
also. Mental unsoundness is, in my judgment,
a two-headed monster — feeding at the same
time on the intellectual and moral man.
Esquirol, (p. 21,) defines mental insanity to
be — "a cerebral affection, ordinarily chronic,
and AvithoUt fev^er — characterized by disorders
of sensibility, understanding, intelligence, and
will. , On the same page h,e makes the following
quotations from C'ono%:^"Insauity is the un-
pairment of one or more of the faculties of the
urind, accompanied with or inducing a defect
of the comparing faculties" — and from Prich-
ard the following: "Insanity is a chronic dis,-
case manifested by deviations from the healthy
andnatUral state of the miud, such deviations
consisting either in a moral perversion or a
disorder of the feelings, affections, and habits
of the individual, or iu intellectual derange
ment,, which last is sornetimes partial, namely,
in monomania, affecting the understanding

only in particular modes of thought; or gen
eral and accompanied with excitement, viz; in
mania or raving madness" — and then Esquirol
himself concludes as follows: "In general it is
regarded as a disorder ofthe system by which
the sound aud healthy exercise of the mental
faculties is impeded or disturbed. That every
case of mental derangement, from the fl,pst
moment of its existence, can be perceived, and
referred with accuracy and precision to
one or another of these definitions, just as in
science every fact may be referred back to its
principle, is not, by those at all conversant
Avith the subject,'supposed to be in all, or per
haps in any case, possible. Who can tell
when health ends and disease befgms? When
disease is found to have shed its bhghting m-
fliience over the system, is it ' possible, affer
establishing, this fact, to decide -what amount

developed? WTien developed, does it, at once,
manifest its baleful iufluence upon the brain,
by producing insanity, or does it rather brood
over the delicate organ of the mind aud grad
ually fulfil its dread commission? When again
the mind begins to totter and reason to sit in
securely upon her throne, -do the friends and
acquaintariceli of the unhappy sufferer recog
nize these first monitions? Qr do they not
rather behold — if indeed they observe any
thing — a simple change of habit, slightly per
verted moral feelings, or trifling eccentrieities
of character.
"Now it is eoncBited to be quite possible,
not to say prol^able, that eveu during this early
stage of insanity, before the friends or imme
diate associates of the patient are aware of
its existence, or before it becomes developed
to a degree that brings it clearly within the
limits of any of the above definitions,, that a
source of excitement, fear, apprehension, or
mental disturbance of some sort, shall so op-
,erate upou the mind, through the medium of
its deceased organ, the brain, as to lead the
person so afflicted, now to the commission of
suicide, now to homicide, or other acts of a
grossly immoral aud highly criminal character.
Experience also justifies the belief that these
results may follow in the train of excitement
occurring from ordinary intercourse with soci
ety, and equally from the perverted thoughts
and emotions of the individual — thoughts aud
emotions, too, which he may never have ex
pressed, or merely hinted at iu conversation
Avith his friends."
Hay (p 139) says:— "Insanity observes the
same pathological laws as other diseases" — "it
arises from a morbid affection of orgamc matter,
aud is just as much, and no more, an event of
special Providence as oth«r diseases"— "it
follows the same course of incubation, devel
opment, and termination in cure or death, as
other diseases— sometimes lying dormant for
months and eveu years, obscure to others, and
perhaps unexpected by the patient . himself—
at others suddenly breaking out Avith no pre-
momtion of its approach" — "just as consump
tion, fbr instance, sometimes begms its ravages
so slowly and insiduously as to be perceptible
ojily to the most practical observer for years
together, while, in another class of patients,
it proceeds from the begiuning with a progress
as rapid as it is painfully manifest. But its
presence no one thinks of denying in the former
case, merely because its victim enjoys a certain
degree of health and activity, though it would
be no greater error than to deny the existence
of insanity Avhile the operations, of the inind
are not so deeply disturbed as to be perceptible
to the casual observer,"
Ou page 142 fhe same author says: "Mad
ness is uot radicated so much by any particu
lar extravagance of thought or feeling as by a
well marked change of charapter or departure

or kind is necessary to occasion aberration from the ordinary habits of thinking, feeHng,
of Sand when to amount an4 quality isj and acting, Avithout any adequate external

300

ME. EOBEETSON'S SPEECH ON

cause." And on p. (?) "It is the prolonged
departure, without any adequate external
cause, from the state of feeling and modes of
thinking usual to the individual when in health,
that is the true feature of disorder in mind."
Speaking of some of the characteristics
of insanity, Esquirol says: — "The insane often
entertain an aversioii to'Avards persons who
were previously dear to them. They insult,
misuse, and fly from them, It is a result,
however, of their distrust, jealousy, and fear,"
(p 26.) "The insane majr becomes timid and
suspicious. He fears every oiie that he ap
proaches, and his suspicions extend to those
who were most dear to him. The conviction
that every oue is endeavering to to,rment and
slander him, to render him miserable, and to
rum him, iu body and estate, puts the finishing
stroke to his moral perversion, (p 74.) "We
would remark that the insane conceive a dis
like aud avei'sion to certain individuals, with
out any motive, and nothing induces them to
change their views. The object of this hatred
is usually the person who, before -their illness,
enjoyed their love." (p 75.) "Thus a mother
belicA'es she is abandoned by her husband, and
desires to slay her children to save them from
a like misfortune. A vine dresser slays his
children in order to send them to Heaven.
A lady gets the idea that her husband wishes
to shoot her, escapes from her chateau, and
throws herself into a Avell," (p 208.) "Mrs. A. '
entertains the belief that men enter her chamber
during the night; on being shoAvn that this is
impossible, she replies they pass thro-ugh the
lock." (p 23.) On page 214, he says: "Dis
appointed ¦ affection, jealousy, fear, &c.,
are the passions which produce the greatest
number of lypemaniacs, (that is, melanclioly
monomaniacs,) particularly in youth."
Jealousy, as we mi'gljt, from its force apd
character, presume, is lugre freqnentiy, than
other passions, the cause or consequence of
partial insanity. For ilhisiration, lye Ayill
quote from Esquirol some cases of that kind in
the asylum at Charinton: M. P., avIio Ayas an
officer under Napoleon and an affectionate
husband, became a monomaniac in consequence
chiefly of the downfall of his leader; and, after
the last abdication, "takes up a frightful aver
sion to his wife and her family, Avho Avere pre
viously the objects of his strongest regard.
Nothing removes his dislike. He deserts his
adopted family." "I have often spoke to him
of his wife and family, in order to recall his
forraer affection. They Avish, says he, to deny
the faith; and they are enemies of God and I
renotmce thera, (p 96.) M. D., 40 years old
aud after he had been sometime in the asylum
"believes ho sees apatieut ofthe house violate
his -wife. In a furioiis passion he throws Iiini-
self upon the object of his wrath, and injures
him most seriously," (p 103.)
M., at the age of 27, was married to a beau
tiful woman, both amiable and Wealthy. "He

is jealous"- "achange in his character is per
ceptible. He is quarrelsome, too exacting,
overbearing, upeasy, restless, and unjust to
wards his relatives." "He conceived an opin
ion that the food at the.eating-house^at whicli
he Avas accustomed to dine had beeu poisoned.
He indulged in violent fits of passion agaiiist
his father-in-law, who 'lavished upou hini
every attention — he quarrelled with his wife,
notwithstanding the affection she eutertaiued
for him. He visits .the houses pf his acquaint
ances, complaining that he is poisoned in, the
family of his father-in-law, and accuses his
wife of exercising an undue influence over
him." "His physiognomy is changeful, his
eyes red and projecting, and his step haughty.
He is polite toward all, familiar with none."
"I cannot close this account without reraarking
that, from being a hypochondriac at first, then.
a lypemaniac fearing poison, he became a
monoraaniac," (p 324-'25.)
Esquirol makes the following classification
of tho .various kinds of insanity:
" 1. Lypemania. — Delirium with respect to
one or a sinall number, of objects, with pre
dominance of a sorrowful and depressing
passion. "2. 2Ionoma)iia, in which the delirium is
limited to one or a small number of objects,
with excitement and predominance of a gay
and expansive passion
"3. Mania, in .which the delirium extends
to all kinds of objects, aud is accompanied
by e.xcitement.
"4 Dementia, in which the insensate utter
folly, because the organs of thought have lost
their energy and tiie, strength requisite to
fulfil their functions. ' '
"5. Imbecility or /rfioc^, in which the con
formation of the' organs has never been such
that those who are thus afflicted could reason
correctly." Perhaps a different and more comprehensive
nomenclature, leaving out lypemania, and in
cluding both tj'pes of particular insanity un
der the title of monomania, would be more
scientific, as well as simple and intelligible .
And we shall so treat the 'subject.
' Monomania and lypemania are chronic cer
ebral affections unattended by fever and char
acterised by a partial ;iesion of the intelli
gence, affectious, or Avill, At one time the
intjfellectual disorder is confined to a single
object, or a limited number of objects. The
patients seize upon a false principle which
they pursue without deviating from logical
reasonings, smd fi-om which they deduce legi
timate consequences which modify their affec
tions and the acts of their wiU. Aside from
this partial delirium they think, reason and
act like other men. Illusions, hallucinations,
VICIOUS ^associations of ideas, false and sti-ange
=°J^.^«!taons, are the basis of this delirium,
which I would deuominate intellectual mono
mania. At another, monomaniacs are not de
prived of the use of their reason, but their
affections and dispositions to perverted." "It

THE TRIAL OE DE. ABNEE BAKER.

301

is this which authors have called reasoning
mania, but which I would name affective mo
nomania- In a third class of cases a lesion
of the will exists. The patient is drawn away
from his accustomed course to the. Commission
of acts to which neither reason nor sentiment
determines, which conscience rebukes, and
which ivill has no longer the power to re
strain." (Esquirol, 320.)
On page 200 the same author says : '1 Mo-
nomaniLt is, of all maladies, that which pre
sents to the observer phenomena the most
strange and varied, and which offers for our
consideration, subjects the most numerous and
¦ profound. It embra.ce3 all the mysterious an
omalies of sensibility, all .the phenomena of
the human undrstanAtng, all the consequences
of the perversion of our natural inclinations,
aud allthe errors of qurpassions."
.," The more the understanding is developed
and the mpre active the brain becomes * the
more is- monomania to' be feared." " Mono
mania is essentially a disease of the sensibility.
It reposes altogether on the affections," " This
malady presents all the signs which charac
terize the passions.. The delirium of mono
maniacs is exclusive, fixed, and permanent,
like the ideas of a passionate man,"
In illusfa-ation of the delusions and passions
accompanying raonomania, the same author,
ou pages 3.64-'65, says' : '' A father immolates
his sou on ,a funej-al pile in qbedience to the
voice of an angel, who commanded him to
imitate the sacrifice of Abraham." "Another
slays an infant iu order to make an angel."
Prohaska slays his wife and two children 6e-,
cau.ie he believes that 'ah officer pays his addres
ses to ihe former." " A mother is compelled to
decapitate that one of her children whom she
loves with the greatest tend.erness." Can we
reconcile reason with the murder of that be
ing mpst dear." Ve can understand thephe-'
nomeoon only by admitting , the suspension,
temporarily, of all understandings all moral
sensibtiity and Volition "
On page 162, Ray says : " The most sirnple
form bf mis disorder (monomania) is that^ iu
which the patient has imbibed some single
notion contradictory, to common sense ajud to
his own experience, and which seems, and
sometimes no doubt really is, dependent on
errors pf sensation. ThUs thcmsands have be
lieved fieir' legs were made of, glass — or that
snakes, fish, or eels had taken up their abode
in their stomach or bowels. In many such
cases the hallucination is excited and main
tained by impressions propagated from dis
eased parts the presence of which haslicen
revealed by dissection after death." And, on
page 167, tlie.,same author, says : " In the sim
plest form of monomania, the understanding
appears to be, and probably is, perfectly-
sound On all subjects, hut those corineited with
the hallucination." "If we would follow these
people to the privacy of their own dwellings,
narrowly observe their intercourse with their
friends and neighbors, and converse with
them on subjects nearest to their thoughts, we
should generally detect some perversity of

feeling or action altogether foreign to their or
diuary character." "It is a fact thai must ne
ver be forgotten, that the phenomena of in
sanity do not, lie on the surface, any more than
those of other diseases, but can be discovered
only by means of close and patient examina
tion." -
The foregoing views of insanity, and mono
mania especially, are corroborated by the con
current testiinony of every respectable writer <
on either medical jurisprudeqce or insanity —
and most fully and emphatically by I^lUoisoji,
by Pricliard, \>y Beck, Dy Taylor, and by Guy,
all standard authors on those interesting su'b-
jects — and more particular references to
whose writings, although I haye, ope of them
before me, would be an useless consumption of
our time. And let me here guard you against
any delusion from oblique intimations, already
made and probably, to be repeated in the con
cluding arguments for the Commonwealth, that
these are all " doctor's books" and not there
fore to be regarded as authority m a criminal
trial. How does, the Lawyer, the Juror, or the
Judge, become well acquaintejl A^^ith the true
dochines of insanity unless he shall be in
structed by the learning and experience of
eminent medical philosophers who have de
voted their lives to the observation and study
of it? And from what source do we and must
we derive our knoAvledge ofthe law on subjects
peculiarly medical ? Necessarily and con
fessedly from works on medical jurisprudence,
which are,' in fact, law books — being the best
and most approved treatises on so much of
civil and criminal jurisprudence as is connect;
ed Avith and depends on medical science.
And I aver, without fear of • contradiction
from any candid and intelligent source, that
the books, from which I have read to you co
pious quotations, are the very best and most
authentic on the subjects on which they are
written. Had . they not been both admisible
and credible on this trial, the Judge Avould
not have allowed me to , read them to, you.
There is no higher or better authority on the
subject' we are considering. - I shall therefore
yet draw on them, or on one of them, copiously
i'n another portion of the argument. And 1
am quite sure' that the Commonwealth will
not attempt to evade the force of these booksj
otherwise than by repeating that they are
" doctor's books." Bu|; not, only are they in
trinsically authoritative, but they are, for all
the purposes of this case, conclusively forti
fied by judicial recognitions in both civil and
criminal trials. In 1794, James Hadfield was
acquitted by, a British Jury, in England's
Eoyal Court, on the ground of monomania
alone. Although he was indicted .for treason
in shooting at his sovereign, and was admit
ted to be perfectly rational pn most subjects,
the Jury found a vel-dict of not guilty, only
because they believed that he labored u'hder
insane delusion on one subject which led him
to attempt to kill his king ;, and that verdict
has, so far as I know or believe^ been approv
ed by all enlightened juripts, and has been
^licognized as a leading authority ever since.

302

MR. ROBERTSON'S SPEECH ON

Subseqiijently Lord Orford Was acquitted
on an indictment for murder on the gTound of
monomania alone, there being no doubt that
he was rational and, sane on all subjects un
connected -with the homicide. In 1835, Law
rence was acquitted by an American jury for
shooting at President Jackson; and his ac
quittal was on the sole ground of monomania
as to the President ; and on that tiial, the
court recognized Hadfield' scasi as establish
ing the triie legal doctrine. In Kentucky the
Court 6f Appeals set aside Moor's will on
the ground that the testator, though rational
on all other subjects, 'was believed to have
been insane in the conviction, without cause,
that a brother, whom he pretermitted, had at
tempted to poison him. Ahd, more recently,
one of the ablest judges on England's Bench,
in the celebrated case of Dew v. Clark^ se^
aside a will ot the single ground that the tes
tator, who was a physician, was a monoma
niac as th his only child, (an amiable and
beautiful daughter,) whom, from her birth, he
charged with being possessed of the Devil,
and being born as a judicial curse, to degrade
his name and destroy his happiness ; and
whom, therefore, he not only neglected in his
will but had invariably persecuted and abused
with a cruelty more than savage. And the
cases of a similar kind, in England and Amer
ica, and in Avhich, whether civil or criminal,
the doctrine of Hadfield's case has beeu judi
cially recognized, are too numerous to justify
even a reference to their titles on this occasion.
We may therefore, conclude, without, hazard,
that the legal as well as actual existence of
monomania, and itS' disabling exculpatory in
fluences, are recognized and established by
that very law by'which you are bound to try
this case. '
There is then, beyond doubt, such a thing
iu law and in'fact, as insanity on one, or a few
subjects, while, in all other respects, the same
mind is apparently sound aud rational. And
this is technically called monomania, which is
indeed the most prevalent form of insanity, as
all lunatic asylums will prove. Go into any
one of these receptacles of the insane and you
will, as already suggested, see a large majority
of the unhappy tenants who reason well and
manifest intelligence and self possession on
many, perhaps most subjects, and some you
will be. Sure to see, whose infirmity yoU wiQ
not be able to detect without a clue from the
keeper or some acquaintance who had ascer
tained the particular subject of insane delu
sion. But comparatively few among the in
sane are totally so : few are so far deranged as
to appear to tie casual observer mad men, or
what is -vulgarly considered crazy men. But
still, insanity even' on one' subject only, may,
to the whole extent of its sphere Of operations,
be as complete and stultifying as total de
rangement on all subjects.
You may now also perceive that; intellectual
insanity proceeds from some morbid excite
ment or derangement of the brain, or from
some disturbance of the physical jtiealth, or of
some one or more of the five senses operating

on the brain, in consequence of which false
and' delusive images or ideas are Communi
cated to the mind, which are riecessarily ac
credited as true, and from which, reasoning
correctly from false premises or imaginaiy
facts, it deduces erroneoii? conclusions. With
intuitive certainty of their tmth. Tou may
understand also that partial insanity, whether
limited in degree or in the extent of its range,
is, like other chronic diseases, latent and; in
sidious in its incipient stages, frequently slow
in its progi-ess, always discoverable first by
the nearest friends and associates of the
afflicted subject, and rarely suspected or ad
mitted by strangers or others ¦whose intercourse '
with the victim is only occasional or b-ansi-
ent. You may presume too, as' is undoubt
edly true, that all insanity of mind is accom~
panied and iUdicated by certain physical
signs — ill the countenance, the temperature,
the pulse, the hang of the muscles, and the
general expression — which none bUt those iu-
tiraately acquainted with its phenomena can
rightly interpret; but "which are, to the skillful
and experienced few, as infallible as the ex
ternal symptoms of any other internal malady.
And hence you must feel the great and Con
trolling force of the opinions of enlightened
medical men on all questions of insanity :
and, ybu should not be ignorant of the fact,
that the law gives to such opinions peculiar
credit aud decisive effect, just as it does-to the
opinions of juristis on questions of laiiv, or to
those of artists oU questions of art.
And, gentlemen, you cannot, I trust, now
fail to perceive that intellectual insanity is not
any unsoundness of the reasoning faculty or
derangement of the mind itself, psychologi
cally or spiritually considered, nor eiToneous
reasoning only, nor violent passion merely as
such; but ,is a morbid delusion of the senses,
the feelings, or the imagination, which fur
nish the material on which the reason acts.
As the serene and unchanged sun of heaven
reflects, from a deranged atmosphere, unreal
and often distorted images, and even such as
the beautiful fata morgana in the Bay of Na
ples, so the mind of man, operating through 3.
diseased brain or the false suggestions of un
sound senses, presents delusive objects or im
aginary facts which have no existence else
where than in a diseased brain or morbid
imagination. The cause is physical, the effect
mental. It is delusion — delusion of a diseased
brain or unsound senses. Man is so consti
tuted as to be fitly adapted to the material and
moral world around him. He is so organiised
physically, when his organs are all perfect ahd
sound, astoperceiveexternarobjects as they
are, and so constituted morally, as to be able,
by his reason, to deduce true and right con
clusions from existing facts, and to conform
his acts to the will of God and thela^ws ef his
counti'y. And, When in this perfect condition
of Constitutional harmony and adaptatioU.'he
is, in the legal -sense, san^, and is responsible
for his conduct ; because being possessed of all
faculties necessary for perceiving the truth Or
idping his duty,— for the proper exercise of

THE TRIAL OB DE. ABNEE BAKBE.

303

those powers he Should, as a moral and ac
countable being, be responsible to God aindhis
country ; and whatever the degree of his intel*
ligence may be, he is legally sane.
But let this harmony be disturbed, and this
organic adaptation be dislocated, and then,
the mind bemg perverted and the reason de
luded by causes which can neither be eluded
nor controlled, erroneous judgment and moral
deviation are as unavoidable as the laws of
natiire — the man is so far out of his element —
not as he was made, and to that extent unsound
or insane ; amd consequently responsibility
ceases as far as the reason of it ceases. If a
man's vision is so tax deranged as to present
objects which do not exist, or to exhibit in a
distorted or false aspect, sueh as do exist, he
is, in that respect, insane : and, as by a fun
damental law of his constitution, he must be
lieve what he sees, and will act according to
that belief, he cannot be reasonably respon
sible for the effects of the optical illusion. Nor,
for the same reason, cau he be responsible for
the natural consequences of a delusiom which
is the necessary offtepring of false images or
imaginations produced by a disorganized or
diseased brain.T^And this, therefore, is an il
lustration of legal insanity, which is defined
by Erskine, iu Hadfield's case-, to be delusion.
But this is too comprehensive. All delusion
is not insanity ; for errors of judgment or of
conduct arising only from a bias ©f interest,
sympathy or education, or from a mere want
of proper consideration, or from enthusiasm,
or from ¦violent passion, are the coraraon fruit
of sound, as well as of unsound minds, and
are not, therefore, proofs of insanity. When
a man is actuated by a rational motive arising
from facts actually existing, then, however
excessive or exceptionable his conduct may
be, or however burning the enthusiasm or vio
lent the passion that impels him, he may not
be, in the legal or scientific sense, insane. He
is not deceived by false images — ^there is no
I delusion of the sens-es or the brain ; the facts
on which he reasons and acts, do actually ex
ist, however insufficient they may be for in
fluencing a sober and. rational mind; and there
fore having the power to make right deductions
from Ihem and to control passions by reason,
he may not be insane, and might fie responsi
ble. But when his motive arises from a mere
chimera of a disordered brain, or tha morbid
imagination of a fact, or evidence of a fact,
when there is neither such fact nor any evi
dence of it, — 'then his reason canno*'undeceive
him, his judgment must be Tvrong, and he is,
consequently, insane and. So far, iiresponsi-
ble. The sacrifice of Desdemona, by her de
voted husband Othello, was the; effect df pas
sion, and not of disease. His reason acted on
facts which existed and were communicated
to him by lago ; and, in both ethics and law,
he was responsible for drawing wrong infer
ences from those facts, and for pennittiUg his
passions to subjugate his reason. He was not
therefore insane, in the technical sense, and
was a murderer. But, had there been no such
facts, nor any evidence of them, and had he

only imagined them, or had he, for example,
mly imagined, that he saw a paramour of Des
demona, night after night, enter his room and
defile his bed in his own presence, and escape
through the window or the keyhole lo avoid his
own drawn sword, — then he was undoubtedly
insane, and his homicide would have been ex-
cuseable as the naturcd offspring of a disorder
ed mind. This is the kind of delusion which
is meant when insanity is said to be delusion:
it is, I repeat, a delusion resulting, not merely
from false reasoning, butfrom imaginary /ctcte,
the images of which are so vividly imprmted
on the mind by some distempered organ as to
force the belief of their truth and baffle all
external proof of their falsehood. And this
too is the conception of intellectual insanity
recognized in the cases of Hadfield and Lord
'Orford, and Dew v. Clark, in England, and
Moor's will, and Lawrence in our oavu coun
try, and in many other leading cases both in
England and America.
From the foregoing coUsiderations and au
thorities, we feel authorized to conclude, that
intellectual insanity is delusion unavoidably
resulting [from some unhealthy or deranged
condition of the physical man, which neces
sarily produces false impressions, and emo
tions, and consequently pei-verts the reason
frora a mentor of truth into an inexorable
guide to strange and perilous error.
And tried by this definition, the facts proved
in this case, as we confidently believe, shew,
beyond a rational doubt, that, Avhen he shot
his brother-in-law, Dr. Baker was of unsound
mind — laboring, especially under insane de
lusion as to him and his own wife, and, to
that extent, totally insane.
But here I feel it to be my duty to admonish
you to be careful to discriminate between le
gal insanity, and the ordinary delusions of a
sound mind arising only from passion or false
'and imperfect reasocdng, and also to under
stand .clearly that, in such a case as this,
public justice and security require that thc
plea of Insanity should be maintained, not
only by satisfactory proof of delusiun, but by
affirmative and intrinsic proof tliat the source
of the delusion Was a disordered or excited
brain producing the honest conviction of the
existence of facts which do not exist, and for
the assumed existence of which there was no
evidence that could have operated on the be
lief of rational mind. In the case of Moor's
will, had there been no other evidence of tho
testator's insanity than the simple fact that he
said his brother attempted to poison him, the
will ought to have been established — because
that fact alone was neither sufficient proof of
the sincerity of the testator's declarations, nor
of the non-existence of any rational ground
for believing what he declared — and, in the ab
sence of other evidence, the fact that there
had been an attempt to poison him would
have been intrinsically less improbable than
that of his insanity. Butit was proved affir
matively, not only that he had no rational
ground for his charge, but that it sprang from
an insane conception when he had been inthe

304

ME. EOBERTSON'S SPEECH ON

delirium of a severe and protracted fever. So,
too, had the only evidence.of Dr. Baker's in
sanity' been the- fact 'that he had said that
Daniel Bates tVas a ferocious husband-and se
cretly meditated his ruiii because he Avas p'ror
' tecting his sister, and ^^Iso that he (Ba-tes)
had illioit intei'coUrse'With his (Baker's) wife,
I would Candidly admit that the plea, of in
sanity ia not sustained. But if, as we. contend,
we have indisputably proved that Dr.'Baker
believed what we have shown that .there ,was
no evidence to support, and .moreover, that
which was intrinsically improbable and even,
to some extent, impossible, then, without the
testimony as to his physical appeai^rtce and
condition, but more conclusively, in connexion
with it, we'Shall; with undoubting confidence,
insist, not only that our plea is incontrovert-
ibly maintained, butthatj a stronger and clearer
case of partial insanity than this is not re
corded ill any adjudged case on earth.
With suoh qualifications and cautious, there
can be no danger of an unjust -acquittal on a
false plea of Jusanity-rwith-out them, the
guilty will often be acquitted on the ground of
irimnlated insanity or of a misconception of its
true character, and the in. tdcent insane may,
as often, be Unjustly convicted. Bat we feel
.¦iure that proper application of the true doc
trines of science andpf law to the fact.s prov
ed on- this trial, will insure the acquittal of
the accused. If there be any, Avisdom iu ex
perience, truth ill science, or certainty in
knowledge, there are tAvo classes of facts in
this case, either of which must be sufficient
to prove Dr. iSaker's insanity now and when
he sho,t Bales, and both-.of which united,, pre
sent as conclusive a defence as ever Avas es
tablished in aicase of acquittal on the ground
of insane delusion.
Pirst. His.physical appearance aud'Coudi-
tion w.ere,. at the time of the shooting, and yet
are just such as, according to all instructiye
experience; derived ftora observation, from ti;a'-
dition, or from, books — indicate viouomunia—
quick and excited pulse, a peculiar tempera
ture, a wild expression, a restless and jealous
temper, a singular flaccidity and hang of the
muscles of the face, and, Avhcn particular
topics are touched, an indescribable staro of
thc eyes and enlargement and apparent, elec
trification of pupils, and incohereuce of speech,
vehemence of temper, and total absorploiu of
.feeling; -Tho'se and.othfr nameless ¦ badges
of partial insanity are riot, ahvays marked nor
generally understood or rightly interpreted by
unskilCu'l and. casual obs«rvei-s — but ihey are
soon noticed Avitli, concern by intinjate asso
ciates, and are deemed infallible symptoms of
mental derangement by all avcU acquainted
with the true character and signs of such ii^-
sanity. Dr. Richardson testified that an ex-
. amiuation of the aoQi^sed in the. prison con-
A-inced him that he is an insane man, and' not
only did he detail to you all the evidences
just enumerated, but others haye proved that
Dr. Baker's condition, bodily and mental, is
now rather better than it was Avhen Bates was-
shot. And who, I ask each and all of you in

full confidence, has closely' observed the pr'"
soner during this whole trial without feeEn^
that he is npW the victim of insane excitemen
and delusion ? Not even one, I am sure.
The first class of, facts alone ought there
fore to be deemed satisfactory proof of Dr, Bak-
or's insanity when he killed-his-brother-iu-lasv.
.Sec,Ond. But the other class, of proofs , is
even more iiTijfutable and conclusive. If Dr.
Baker believed the charges he made against
his wife and his mother and si.sters, and others
— all of whose characters are spotless aiid ex
alted — he was certainly insane ; because there
was no evidence to excite, in a sound mind,
even a Suspicion of the truth of any sine of
tbe facts charged, and most of them were so
exceedingly incredible and even morally im
possible as to make it infinitely more difficult
to believe their truth than his derangement.
Not one fact has been proved which could
tend, in the slightest degree, to au-thorize a
rational man, however jealous, f o believe any
one of those charges. This is admitted by all
the counsel for the cbmmonwealth-
., Nor can there be a rational doubt that Dr.
Baker houestiy believed that every charge was
true. This is demonstrated .bythe frequent
and almost coiistarit reiteration of those charg
es, the circumstantiality and identity • of
all his statements, his peculiarly earnest and
excited manner, whenever he made them, and
especially also by the conclusive fact that if
he labored underno insane delusion, there was
no imaginable motive for his unaccoimtable
conduct in making such outrageous, charges,
or , for his unparalelled cruelty^ to his wife.
The imputation of a desire to get a portion- of
Bates' estate, or of revenge for Bates' delicate
evasion, or suspension^ of Bakers' proposal
to unite with him iu a certain small adventure,
is, perfectly gratuitous and absurd. Possess
ing, in an eminent. degree, the cocifidence and
friendship of his brother-in-laAV, and enjoying
without stint, his hospitality and bounty, Dr.
Baker had every motive that could influence a
rational,, prudent, orgrateful man, for contin- ¦
uing to cultivate tiieir friendly and confiden
tial relations, and had c\'ery reason to expect,
as a consequence, the increased munificence of
Bates. But, by hostility to Bates, and especial-
lyjby effecting his deatii, Dr. Baker ostracised
himself, cut oil' all possibility uf ev^r enjoyino-
his bounty, his aid, or any portion of hislarge
estate.. This itself would proA--e insanity, if
his charges against Bates w-cre all false. It
would be equally ridiculous lo suppose that,
as a ;i:atioual man, Dr. Baker married hisAvife
for the putpose of sacrificing her, or tlAt he
meditated her sacrifice as a clumsy device for
extorting money from her wealthy and hon
orable father. His communication to that
father, aud his proposition to remove to Mis
souri on the condition of an advance of a com
parative small sum, are only , Goi-roborative
evidences of his insanity. And certainly ,no
rational man, desiring to enjoy the libei-ality
of a father-in-laAv, would have acted as he did
,S,uch a course was sure to defeat such' au
end. If he ever suggested to Davis,

THE TEIAL OP DE. ABNER BAKBE.

3d(

before marriage, that he did not expect
to live long with his wife, (aud of this there
may be much doubt,) he meant only that, as,
in his opinion, Bates was conspiring with
others to prevent the union, and was malici
ously plotting his assassination, he would in
the event of a maniage eft'ect a separation
either by his death or by intrigue and calumny.
This is evident from all the circumstances.
It cannot be believed that auy respectable
man perfectly sane could have conducted him
self as Dr. Baker did. Such a monster — such
a devil incarnate does not exist amsng men.
If he knew that all he published was false,
no other than a purely diabolical motive could
have impelled liim. It cannot be believed
that any man of his character, education, fam
ily, hopes, prospects, and associations, could
have, all at once, become such a demon. And
what could a rational man have expected from
such a monstrous course, but the most destouc-
tive consequences to himself and to all whom,
as a human being, he most loved ? He
could then have had no rational motive for
simulation of insanity ; and if he had, he
could not, as a man of sound mind, have act
ed, and talked, and looked as, for a long time
he did, and even yet does habitually. More
over had even this been possible, and could it
be believed that he was so mysteriously bent
on mischief and ruin as to determine on
the destruction of his wife and his brother-in-
law, and to feign insanity for screening him
self from punishment, there can be no doubt
that he neither could norwould have done as
he did. By making others believe that he was
insane he would have defeated the imputed
purpose of blasting his. wife and Bates ; for
not only was the incredibility of his charges
against them the proof of his insanity, but
the convictionof insanity would rescue them
from injury. And, besides, had he intended
to counterfeit the appearance and conduct of
an insane man, he would have attempted those
of a maniac or madman, which all who saw
him would have understood as insanity, and
he would not have conversed and acted ration
ally on general subjects and occasions — nor
would he have charged Bates with impregnating
his (Baker's) own young sister , nor his mother
and sisters with keeping a house of prostitution.
Nor, if his object had been to induce a belief
of his wife's guilt and Bates' alleged miscon
duct, would Tie have implicated so many and
such other persons, or have told so many tales
that no rational being would or could believe.
For instance, he would have made a general
charge of illicit intercourse between Bates
and his wife, which might have been accred
ited, or at least have created such suspicion
as to effect his mischievous end,— but he surely
would not have said, as he often did, that this
intercourse was on hisjown bed and in his oavu
presence— nor that his young wife had prosti
tuted herself to the embraces of her uncle,
an ugly negro, and her own reputable and de
voted father— nor that her preceptor, who was
and is a minister of the gospel of as pure a
character as any that lives, had seduced her
39

when she was only nine years old, and had
also seduced a majority of his female pupils
and kept a harem — nor wouldhe have publicly
tried the signals (ascribed by him to that
teacher), on a respectable lady who had been
educated by him, nor have declared, as he
foolishly did, that she understood them per
fectly and responded to them favourably.
No, no! Such could not have been the con
duct of a sane devil, (if such a monster can
exist in human form,) who wished to impress
the conviction that his wife was foul and faith
less. Had such been his purpose, such de
vices would have insured its frustration.
But he still insists that he cau prove every
charge, and would rather be shot than ac
quitted on the plea of insanity, which he in
dignantly denies. Then I feel authorized to
conclude that Dr. Baker believed all he said
concerning his wife and Bates. And could
any rational man have so believed? Is it pos
sible for a sane man to doubt either that Dr.
Baker believed all he charged, or that such
belief is conclusive proof of au insane delu
sion? In addition to the absurd and mon
strous charges just alluded to, he repeatedly
said that, when on a visit to his father's, his
mother, after he and his wife had retired to
bed in au upper room, was in the habit of
opening the door of their chamber to let in to
his wife another man, and whom he compelled,
one night, to escape through the window, by
drawing his pistol on him; and also that, du
ring that same visit to his father's, a negro
man had lamed his (the Doctor's) horse, for
the purpose of compelling him to prolong his
stay, so that this black man might continue to
enjoy the embraces of his (the Doctor's) wife.
I might remind you of many other facts conduc
ing stTongly to the same conclusion of insan
ity; but the raore prominent, which have just
been grouped together, stand out in such bold
relief as to leave no ground for a doubt of the
truth and necessify of that conclusion.
If the accused was or is sane, who on earth
was ever a lunatic ! In him we have found,
not a, few equivocal signs of insanity, but
every badge known or described by those con
versant with the subject. Thisis, therefore, a
perfect case. In every point and lineament of
the monomaniac it is well defined and com
plete. This I affirm on the clear and indis
putable facts, on the authority of the books,
and on the undoubting and concurrent opin
ions of all the medical men who have testified
in this case.
The opinions of common men, of common
observation, on a question of insanity, are en
titled to but little, if any influence. Such is
the doctrine of reason and of the highest judi
cial authority in Kentucky and elsewhere.
But both the same sources of authority unite
in giving great, and generally decisive effect
tothe opinions of enlightened medical men
on that subject. And do you not perceive
the reason of this distinction? On a question
of partial insanity of mind, ordinary men, in
an ordinary condition, are not competent
judges, any more than they are campetent to

SOS

ME. BOBEETEON'S SPEECH ON

decide tha most difficult questions of abstruse
law. So far as such witnesses may be con
cerned, in such cases, the facts proved, and
not their opinions, must form the basis of the
jury's decision. But, on a question of sanity
or insanity of body or mind, the opinions of
eminent physicians and of medical philoso
phers must be regarded as persuasive, if not
controlling. On this point we will read, from
Bmj, the following forcible remarks: "As the
conclusions of the jury relative to the existence
of insanity, must necessarily be based on the
testimony offered by the parties, it is a sub
ject of the utmost importance, by whom and
in what manner this testimony shall be given.
If the decision of this point were purely a
matter of fact, the only duty of the jury
would be to see that they were sufficient for
the purpose and produced from authentic
sources. But on the contrary, it is a matter of
inference to be drawn from certain data, and
this is a duty for which our juries, as at present
constituted, are manifestly unfit." — "Such
however is made their business, and, in the
performance of it, there is but one alternative
fer them to follow — either to receive, with the
utmost deference, the opinions of those who
have a professional acquaintance with the
subject, or to slight them altogether, and rely
solely on their own judgment of the facts."
"It is perhaps of little consequence who testi
fies to a simple fact which it requires only
eyes to see or ears to hear; but it is all very
different with the delivery of opinions that are
to shape the final decision. As this requires
the exercise of judgment, as well as observa
tion, there ought tobe some kind of qualifica
tion, on the part of those who render such
opinions, not required of those who testify to
mere facts," (p 57.) And again from page'
59 as follows: "An enlightened and conscien
tious jury, when required to decide in a case
of doubtful insanity, which is to determine the
weal or woe of a felloAV-being, fully alive to
the delicacy and responsibility of their situa
tion and of their own incompetency, unaided
by the counsels of others, will be satisfied Avith
nothmg less than the opinions of those who
have possessed unusual opportunities for study
ing the character and conduct of thc insane,
and have the qualities of mind necessary to
enable them to profit by their observations.
If they are obliged to decide on professional
subjects, it would seem but just, and the dic
tate of common sense, that they should have
the benefit of the best professional advice."
The suggestions, therefore, of a fcAv common
men on the side, of the CommonAvealth, that,
in an occasional vicAv transiently taken of
Dr. Baker, they did not perceive that he Avas
insane, areentitied to no effect whatever — 1st.,
because they Avere incompetent judges; 2nd.,
because their opportunities were insufficient;
and, 3rd., because the accused is admitted to
have been apparently rational on the common
subjects on which they happened to hear him
speak.

But the opinions of many of our unprofes
sional Avituesses are entitled to influence — 1st.,
because they were intimate associates, and
father, and mother, and sisters, 'who had ex-
traordiuai-y opportunities of finding out the
truth; and, 2ndly, because they also, testified
to facts Avhich sustain their oavu opinions.
And, so far as opinions can operate, we have,
Avhat is yet more satisfactory, the concurrent
and unhesitating opinions of the three medical
gentlemen who have testified before you, two
of them at the instance of the accused and the
other at that of the Commonwealth. Dr.
Hervey Baker has told you that he had no
doubt of his brother's insanity when he shot
Bates; and he has also told you facts which
prove, beyond a doubt, that this opimon. is
right. It is true he said that, for sometime,
he Avas perplexed between the deduction of
his brother's insanity and the presumption that
his wife might have been afflicted Avith nym
phomania — but that, as soon as he had read
au approved treatise on insanity, and learned
the facts correctly, Ayhich he had never previ
ously done, he came to the clear and fixed
conclusion that his brother was a monomaniac.^
Dr. Richardsonis eminently qualified to judge.
His long experience, his pecUlair position for
more than 25 years, and his extensive obser
vation of insanity in all its forms during that
time, entitle his opinions in this case to A-ery
great respect. He has testified that his exam
ination of the accused Avould alone have con
vinced him of his present insanity; and for this
Opinion, ho has given you all the reasons you
will find in the most approved books as signs of
insanity. He also heard the testimony given
by other Avitnesses, and said peremptorily that,'
ou the facts proved by these Avitnesses, he could
feel no doubt that Dr. Baker, Avhen he killed
Bates, Avas insane as to him and his own Avife,
at least; and that ftic killing was the offspring
of that insane delusion. He moreover, gave
you many strong reasons for his conclusions,
aud emphatically affirmed that he had never
seen or read of a clearer or better defined cjjse
of particular insanity than that of the prisoner
Avhen, before, and since he shot Bates. Thc
other professional Avitness, your OAvn physician.
Dr. Eeid, Avho Avas introduced by the Com
raonwealth, had uot heard the other AA'ituesses;
but, on a hypothetical statement of tho promi-
uinent flicts as proved, (and AA'hich was admit
ted to be true,) he said that the prisoner was
"undoubtedly insane" Avhen he killed Bates,
and Avas, iu his opinion, "undoubtedly" irre
sponsible for that insane act.
And, gentlemen, Avhy has uo physician been
brought to testify that the facts do not prove
insanity? Have not the numerous, Avealthy,
and vigilant prosecutors long knoAvn that the
accused ATould be defended on the plea of in
sanity? The only reason is, that they could
not find a respectable physician in Kentucky
who would uot have concurred, as their witness.
Dr. Eeid, did, with Dr. Eichardson. And I

THE TRIAL OF DE. ABNEE BAKBE.

807

am confident that no honest aud enlightened
physician in America would venture to ex
press any other opinion on the facts thau that
so firmly, clearly, and imposingly given by
Dr. Eichardson.
But we have been asked why the prisoner
was not placed, by his • friends, in a lunatic
asylum? The question is irrelevant; because
the omission to confine him in au asylum can
not impair the force of the facts conducing to
prove his insanity. Nevertheless, the ansAver
is: — 1st., because his friends did not apprehend
any mischief — 2nd., because they Avere advised
that a Avinter's residence in Cuba, far from the
disturbing scenes and associations, might re
store his physical strength, and, with it, his
mental sanity — and 3rd., they apprehended
that, Avere they, before a final trial, to attempt
to send binn to the asylum, the act would be
ascribed to a disposition to elude a trial by
false means. But there can be no doubt that
his father, mother, and sisters, and others' at
Lancaster, discovered, and conversed with
each other about his derangement before he
killed Bates — and the letter -written, before
that event, by his father to his sons at Knox
ville, proves that he was of opinion that his son
Abner was then insane.
You should not here forget that no fact is
proved by the prosecution inconsistent vrith the
evidences of insanity established by the defence.
The fact that the accused manifested some
skill and self possession when he shot Bates is
uot at all inconsistent with the existence of
msane delusion as proved. All lunatics and
all suicides manifest similar sagacity and dex
terity on similar occasions; and, if this should
disprove insanity at the moment of killing, no
man would ever have beeu acquitted on the
ground of derangement, nor should ever plead
insanity on an indictment for murder; and
then, too, Hadfield, and Lord Orford, and
Lawrence, and a host of others were acquitted
illegally; for, in all these cases, the homicide
was skillfully executed or attempted.
Now, gentlemen, considering the true nature
and signs of intellectual insanity, general or
particular, as established by experience aud
improved science— considering the physical
appearance and condition of the accused— con
sidering the facts proved as to his conduct and
l^s conversations— and considering the medi
cal opimons of all the professional Avitnesses
and the great respect to which these alone
would be entitied— can any one of you,
all sworn to decide this case according to the
law and the testimony, alloAV yourself to doubt
that the accused, when he killed his brother-
in-law, (which act itself, without auy rational
motive, is strong evidence of insanity,) labored
under an insane delusion as to said Bates aud
his o-wn wife? May we not reiterate that a
clearer, stronger case of monomania cannot
be found on record? Can there be a doubt
that the prisoner imagined strange facts that
did not exist, for tho supposed existtocs of

which there Avas no evidence whatever, and of
the falsehood of which no arguments or proofs
could have convinced him? Did uot a morbid
brain impress all these false and delusive ima
ges on his mind; and did he not, therefore,
believe them all to be true, as firmly as a man
of sound miud would be bound to believe tho
testimony of his OAvn senses? Then, in fact,
ahd in law, he was insane and this branch of
his defence is satisfactorily sustained.
The three employed counsel, Avho have ar
gued this case, have not discussed the facts, as
proved, nor attempted to reconcile them with
the assumption of the prisoner's perffect sanity
— nor has any one of then ventured to deny
that he was aud yet is partially insane, other
Avise thau by msinuatmg that there is no other
insanity thau that which is general; and thus
virtually conceding that, if there be suchinsan-
ity a^ raonomania^ the accused was a mono
maniac on the subject of his wife and Bates.
But nevertheless, they all have argued that,
admitting thig insane delusion, the accused,
being apparently rational on other subjects,
should be presumed to have kno^wn right
from wrong, and to have been conscious,
therefore, that he Avas violating the law
in killing Bates. And, if he should be
found guilty, I feel confident that the verdict
will be the consequence of error on this pomt.
It is important now, therefore, to endea-yor
to understand the doctrine of the law which
should govern this case.
The first of the hired counsel for the prose
cution, who opened the argument, did nottouch
the law. He dealt chiefly in appeals to your
passions and prejudices, and drew largely on
his OAvn convenient iraagination for facts, aa
vvell as arguments; the second, though he
glanced at some laAV, was equally fanciful and
pathetic. Butthe third, whom I succeed, read
copiously from Blackstone the common law of
homicide, which no lawyer controverts, and
from the Bible also several chapters on the
same subject, aud not one Avord of which, as
he finally admitted, had any legitimate appli
cation to your present duty.
Why you were detained Avith so much su
perfluous reading from Blackstone cannot be
imagined, unless the object was to make you
believe that it is all pertinent and against the
prisoner. But the purpose of introducing the
Bible cannot be mistaken; and it is matter
of regret that this holy book should be perver
ted and prostituted to any such unholy end as
that of hanging a man who is entitled to an
acquittal by the local law of the land— tho
only law by which you can try him. Does
the counsel suppose that he cau delude you
into the belief that jou can administer the
Mosaic law of God? I trust that you will
undeceive him, and let him know that the ac
cused can be sacrificed by your verdict on no
other altar than that of human law. Re
sponsibility to God matt bo enforcod by Gel.

SOS

MR. ROBBETSON^S SPEECH ON

The only portions of the extensive readings
in behalf of the dolnmonwealth, Avhich is ap
plicable' to this case, is so much of the defini
tion of murder as requires, as indispensable to
temporal punishment, that the raanslayer shall
be of sound mind, and declares that, if he
had discretion enough to know that he Avas
doing wrdug, and a sufficient degree of moral
power to avoid it, he should be criraiually re
sponsible. Our criminal code, whose end is, not 'retri
bution or revenge, but prevention and security
only, intends that the example of punishment
shall effect this end; and consequently, as ex
ample could not deter those who haye not the
capacity of knowing their duty or the power
to perfoi-m it, the law will not punish for an
act spriugmg from an insane delusion, and
which the actor had not the power to avoid.
A voluntary abuse of free Avill, by a rational
creature, is the foundation of all guilt, moral
or legal. When the will is either perverted,
or overwhelmed by unavoidable delusion, the
blind agent is not responsible to any forum,
human or divine. To perish for an act which
was the offspring of sueh a deluded will, Avould
be inconsistent with humanity, justice, aud
public policy. No punishment, however certain
and sanguinary, coUld prevent the recurrence
of similar acts under similar circumstances.
Gonaequently, judicial, punishment, in such a
case, would be judicial murder — and therefore
the punitoiy sanctions of ourlaAv are addressed
to those who have the intellectual power to per
ceive right and the moral power to abstain from
vrrong. Hence, an idiot is, not pumshable for
any act; and, for the same reason, a lunatic,
when deranged on all subjects, should not be
liable to any punishment for any act done du
ring the prevalence of the general iiisamty.
A very large majprity of lunatics, however,
are only partially insanej and to thjs compre
hensive class, belongs the monomaniac.
But, within the sphere of the derangement,
whether general or only partial in its extent,
is not the unfortunate victim of delusion as
insane in the one class of cases as in the other
— in other words, if a man be insane on one
subject only, is not his insanity, ¦within the
whole circumscribed range of that subject, as
total as it would have beeu had he been
equally insane on all subjects? And, if then,
a monomaniac, acting under the influence of
his Insane delusion, kill a fellow-being, as to
whom he is deranged, is he more guilty thau
he would have been had his insanity been
general? As to every thing within the insane
zone, may not the mind be ¦unhinged, and, for
all rational purposes, powerless? And should
it be predicated of a man in this position, that,
because, beyond the circle of eclipse, he en
joys, in some degree, the light of reason and
the blessing of moral power, therefore he shall
bo preiumed to have the benefit of a reflected
light, or of some dim twilight to guide his
sttpi thiongh ths delusi-ra labyrinth of intel

lectual darkness also? We insist that this pre -
sumption is authorized by neither reason nor
justice, philosophy nor Iuav.
Ever since the acquittal of Hadfield iu 1794,
the jurists of England and America have re
cognized the- doctrine that a person, doing aU
act under the influence of insane delusion and
who Was, in" consequence of derangeraent, un
conscious of doing wrong or AVas impelled by
an irresistible raotive, is uot subject to
legal punishment for such inevitable conduct.
But, whether an act done Avithin tbe range of
partial insanity and under its influence should
be presumed to have been impelled by irresisti
ble impulse or been committed Avithout a full
consciousness of its being Avrong, is a question
which may not have been authoritatively set-
tied in England Avith satisfactory precision or
undoubted certainty. We are satisfled, how
ever, that a careful analysis of the adjudged
cases and of the elementary discussions on
this subject should result in a conviction that
such is the presumption of reason, and ought
to be, and is that also ofthe law.
The scientific and eininent jurist Evans, in
his Annotations to Potheir on obligations, re
cognizes what we consider the true rule iu the
folloAving perspicuous and precise terms— "I
cannot but think that a mental disorder opera
ting on partial subjects, sho-ald, with regard to
these subjects, be attended with the sarae ef
fects as a total deprivation of reason, and that,
on the other haud, such a partial disorder,
operating only on particular subjects, should
not, iu its legal effects, have an influence more
extensive than the subjects to which it applies;
and that ev^ry question shduld be reduced to
the point, whether, the act under consideration
proceeded from a, mind fitily capable, in' re
spect to that act, of exercising free, sound, and
discriminating judgment; but, iu case the in
firmity is established to exist, the tendency of
it to direct or fetter the operations of the mind
should be, in general, regarded as sufficient
presumptive evidence, without requiring a di
rect and positive proof of its actual existence."
The only doubt Ave feel concerning this view
is, whether it may not be too vague and even
not altogether accurate in the concession that
an act on one subject cannot be presumed to
have beeu influenced by insanity on any other
subject; for, there may be doubt whether a
mind insane on some subjects cau be perfectly
sane on any other subject, and still more doubt
whether insane delusion ou one point only
may not exercise a controlling influence over
all the operations of the mind and emotions
of the heart. Wo adimt, howeA'er, that this
general qualification suggested by Mr. Evans
has been judicially recognized and established
as being true both in civil aud criminal juris
prudence. But Avhat reasonable objection
cau be made to his rule in any other respect?
If the law — assuming that a person admitted
to be insane on one subject only is perfectly ra-
,tional «nd freo to act as ho ought on all other

THE TRIAL OP DR. ABNER BAKBE.

309

subjects — therefore, presumes that there is
equal consciousness of right aud Avrong and
ability to pursue the right aud avoid the
wrong in all the monomaniac's conduct within
the scope aud influence of the particular
insanity — then the plea of insanity could
be no available defence to any but idiots
or those lunatics who are totally insane on
all subjects. It could be no defence to
those whose insamty is partial either iu de
gree or extent; none to a vast majority of
the occupants of om- mad-houses; none what
ever, to any, except such as Avill never need
it; for it is not probable that au idiot will ever
be indicted for murder, and we should not
presume that a lunatic, totally deranged ou all
subjects, and, while in that state committing a
homicide or other breach of the penal laAV,
Avill ever be prosecuted as a criminal. But
we know that particular insanity is a legal de
fence in a criminal prosecution, and that it has
been successfully pleaded inmany cases. And
it can have been thus successful on one hypoth
esis only — aud that is, that, Avhen it has been
proved that the act charged as a crime was done
within the range and under the influence of
monomama, the law presumes, prima facie,
that it was done involuntarily or without a-
consciousness of criminality — for, if the exis-
- tence and potential exercise of reason gen
erally, should legally imply the . capacity to
exert it conservatively on the subject of par
ticular derangement, then, certainly there
could no proof of facts sufficient to shew that
it could not, and therefore ought not, to have
been preventively exerted in every case and
ou all occasions unaccompanied by actual du
ress. To shew that reason on some subjects
doesnot imply effectual reason on the particu
lar subject of insanity, Eay says — "No one
will be bold enough to affirm that a certain
idea cannot possibly be connected Avith a
certain other idea in a. healthy state of
mind, least of all when it is disordered by
disease, so that the existence of partial in
sanity once established, it is for no human
tribunal to arbitrarily circumscribe the circle
of its diseased operations." (p 253.) If
there be such insane delusion on a particular
subject as to imagine the existence of things
which have no semblance of real existence,
is not the mind totally insane on that sub
ject! And if so, would it not be unphilosoph-
ical to presume an unfettered will on that sub
ject, or a perfect consciousness of the moral
and legal character or consequence of any act
excited by that insanity? Such a presumption
Avould be, moreover, absurd; because it would
presuppose the non-existence, (partially at
least,) of insamty. Besides, when an act of
violence— homicide, for instance— results sole
ly and directiy from an insane delusion re
specting the person killed, would, it not be
unreasonable to presume that there was no
moral delusion also, or that, in the act of
kilUng, the agent enjoyed moral freedom and

well kuoAV that he was doing Avrong and ought
to be punished? Would it not rather be more
reasonable to presume that, under the influ
ence ofthe derangement and iu the tumult of
passions kindled by it, he Avas impelled by
overwhelming delusion, or conscientiously and
firmly believed that he was the rightful aven
ger of his OAvn Avrongs, and that the mode re
sorted to was a proper and legal right? Ou
this question, 'Eay, p 260, says — "Each delu
sion alike was the offspring of the same de
rangement, and it is unjust and unphilosophi-
cal to regard one with indifference as the hal
lucination of a madman, and be moved with
horror at the other and visit it with the utmost
terrors of the law, as the act of a bi-utal mur
derer." Again, on p 259, he says— r"Now,
though such a person may not be governed by
any blind irresistible impulse, yet to judge his
acts by the standard of sanity, and. attribute the
same legal consequences as to those of sane
men AVOuld be clearly unjust, because their real
tendency is not and caimotbe perceived by him.
Not that his abstract notions of the natm'c of
crime are at all altered, for they are not, but
the real character of his acts being miscon
ceived, he does not associate them with their
ordinary moral relations. No fear of punish
ment restrains him from committing criminal
acts, for he is totally unconscious of violating
any ipeual law, and therefore the great end of
punishment, the prevention of crime, is -whoUy
lost in his case." Aud again, on p 255-6,
speaking of homicide produced by monomania,
he says — "It must uot be overlooked that, in
cases like the latter, the insanity manifests
itself, not only in the fancied injury, but in the
disproportionate pumshment whieh he inflicts
upon the offender, and it is absm'd to consider
one manifestation as a delusion and the other
a crime." This appears to be sound logic
and good law. And, in this case, the act of
killing Bates — if there Avas no rational raotive
or actual provocation-^was, alone, strong evi
dence of insane delusion, as much as to the
moral and legal character of the act, as it
could be as to the imaginary Cause and end of
it. The fact that the accused appeared to be
rational ou some subjects, raay be sufficient
to shoAV that he knew right from wrong, and
had moral ability to abstam frora wrong,
within the scope, of those subjects; but it ought
not, therefore, to be deeraed sufficient proof of
his possessing such reason and moral sense
and power as to objects or acts within the
range of his insanity. He doubtiess knew that
murder Avas criminal — but should not be pre
sumed to have knoAvn- that the killing of
Bates, as to whom he was insane, would be
murder, or, in any sense, a criminal, act.
Considering this palpable distinction be
tween a consciousness of right and' wrong gen
erally and in the special case as to which there
is insanity, Eay, p .33-4, says— "The purest
minds cannot express greater horror and loath-
ling of various crimes than madmen often do.

310

MR. ROBERTSON'S SPEECH ON

and from precisely the same causes. Their
abstract conception of crime, not being per
verted by the influence of disease, presents its
hideous outlines as strongly defined as they
ever were iu the- healthiest condition; and
the disapprobation they express at the sight
arises from sincere and houest convictions.
The particular criminal act, hoAvever, becomes
divorced in their minds from its relations to
crime in the abstract, and being regarded only
in connexion Avith some favorite object, Avhich
it may help to obtain, and whieh they see no
reason to refrain from pursuing, is evinced, in
fact, as of a highly laudable and meritorious
nature. Herein, then, consists their insanity —
not iu preferring vice to -virtue, in applauding
crime and ridiculing virtue^but in being una
ble to discern the identity of natm-e betAveen a
particular crime and all other crimes, whereby
they are led to approve what, in general
terms, they have already condemned." Again,
on p 41, he says — "The existence of the illu
sion is obvious aud cannot be mistaken, but
what may be the views of the maniac respect
ing the moral character of the criminal acts
which he commits under its influence can never
be exactly knoAA'u, and, therefore, they ought
not to be made the criterion of responsibility.
But it is known that one of the moststriking
and .characteristic effects of insamty iu the
mental operations, is to destroy the relation
between ends and means — between the object
in view, and the course necessary to pursue,
iu order to obtain it. It was in accordance
Avith these vieAvs that Lord Erskine pro
nounced delusion to be the true test' of such
insanity as exempts from punishment, aud 'that
the correctness of the principle was recognized
by the Court."
Providence has wisely harmonized our in
tellectual and moral faculties so that when
ever we are able to perceive the truth, we
generally have the moral power to act in con
formity to it'; aud, therefore, , we are culpable
if we do not so act ; and, for the same reason,
when, in consequence of intellectual derange
raent, we are unable to perceive the truth, or,
instead of it, imagine that which is false or
has no real existence or foundation, our moral
power is, or should be presumed to be, to the
same extent perverted or paralyzed ; and,
therefore, not being, in that respect, free and
rational moral agents, we are in-esponsible for
the acts of our diseased minds.
But if it be not universally or even generally
true that moral derangement or inability ac
companies intellectual insanity, still there can
be no doubtthat the moral power of the mo
nomaniac is not ahvays, if ei^er, able to con
trol the volcanic eruptionsfrequently produced
by the insane delusions of a disordered intel
lect. On this subject we will again read from
Eay, p. 251, the folloAving appropriate sugges
tions : — " Amid the rapid and tumultuous
succession of feelings that rush into the mind,
the reflective powers are paralyzed, and his
movements ara solely the result of a blind,

automatic impulse with which the reason has
as 'little to do as with the movements of a
ne-jv-born infant. That the notions of right
and wrong (raay) continue unimpaired under
these circurastances proves only the partial
operation of the disease ; but in the internal
struggle that takes place between, the affective
(moral) and intellectual powers, .the former
have the advantage of being raised to their
raaximum of energy by the excitement of dis
ease, which, on the other hand, rather tends
to diminish the activity of the latter. We have
seen that generally after the fatal act had been
accomplished and the violence of the parox
ism subsided, the monomaniac has goneand
delivered himself into the hands of justice."
Again, on p. 262 : — " the real point at issue
is, whether the fear of punishment or even
the consciousness of wrong doing,., destroys
the supposition of insanity — and this is set
tled by the well known fact that the inmates
of lunatic asylums, after having committed
some reprehensible acts, will often persist in
denying their agency in them in order to avoid
the reprimand or punishment which they
know would follow their conviction." And
again, p. 263 : — " We have an immense mass
of cases related by men of unquestionable
competency and veracity, where people are ir
resistibly impelled to the commission of crim
inal acts while fully conscious of their natUre
and consequences: and the force of these facts
must be overcome by something more than
angry declamation against visionaiy theories
and ill-judged humanity. T}iey are not >fic-
tions invented by medical men (as was rather
broadly charged upon them in some of the
late trials iu France) for the purpose of puz
zling juries and defeating the ends of justice,
but plain and unvarnished facts as they oc
curred in nature ; and to set them aside with
out thorough investigation, as unworthy of in
fluencing our decisions, indicates any thing
rather than that spirit of sober and indefa
tigable inquiry which should characterise
the science of jurisprudence. We need have
no fear that the truth on this subject will not
finally prevail, but the interests of humanity-
require that this event should takeplace speed
ily." And lastly, on p. 265 : — " 'The criminal
act for which its subject is called to account,
is the result of strong and sudden impulse,
opposed to his natural habits, and -generally
preceded or followed by some derangeraent of
the healthy action of the brain or other organ.
Where is the sirailarity between this man who,
with a character for probity, and in a fit of
melancholy, is irresistibly hurried to the com
mission of a'horrid deed, and those wretches
who, hardened by a life of crime, commit their
enormities with perfect deliberation and con
sciousness of their nature 1"
I will read no more on the subject from ele
mentary books, but, for confirmation of all I
have read to you from Ray, I refer to every
modern work on insanity and medical juris
prudence, and particularly to Prichard, Es
quirol, Beck, and Guy — ^between all of whom
Und Ray there is a substantial coincidenca.

THE TEIAL Off DR. ABNEE BAKER.

311

And adjudged cases are still more authori
tatively confirmatory of the same just and con
sistent doctrines. In Hadfield's case the only
enquiry was, whether he was lead by intellect
ual delusion to shoot athis sovereign; and, en
this ground alone, he was acquitted by the
jury with the approval of the presiding judge,
without enquiring whether the alleged insan
ity being established, the prisoner should be
presumed, nevertheless, to have known right
from wrong generally, or even in that particu
lar instance. And will any one of the pro
secuting counsel deny that this is a leading
case which has been approved by the most
learned jurists ?
On an indictment for murder, as already
suggested. Lord Orford was acquitted on proof
of monomania or insane delusion as to acts of
hostility supposed to have been committed
against him by the person whom he killed.
In that case Lord Lyndhurst told the jury
they ought to acquit the prisoner if satisfied
" that he did not know, when he committed
the act, what the effect of it, if fatal, would be
Avith Reference to the crime of murder" — 5th
Carrington and Payne 168. There was no
other circumstance, tending to show a con
sciousness of wrong in the particular act (to
which the instruction restricted the enquiry)
thau the simple fact of the insane delusion
just mentioned. Yet a British jury very wisely
presumed, from ^that insanity alone, an un
consciousness of wrong or the want of a ra
tional free will ; and their verdict has been
approved without question, so far as I know
and believe. Nor, as I believe, has any per
son, since the trial of Hadfield, been hung in
England for murder,' by an impartial tribunal,
when there was satisfactory proof that the
homicide was committed under the infiuence
of monomania. In all such cases (and they
have been various and 'numerous) there were
either verdicts of not guilty or royal -pardons.
The doctrine recognized in Hadfield's case
has never been overruled or disregarded in
England ; and the principle of that case is,
" that a person is not criminally responsible
for an act done under the influence of insane
delusion." The last of the prosecuting counsel who
addressed you, read, from Notes to Starkie on
Evidence, some loose dicta of one or two njsi-
prius judges, which he seems to intei-pret as
importing that a general knowledge of good
and evil might be sufficient to impart legal
criminality to a homicide committed under
the influence of insane delusions. A full and
perfect consciousness of wrong m the parti
cular act is what was intended, as the History
of this matter and the instruction m the case
of Orford will clearly prove. The same ju
ridical histoiy will prove also that the prac
tical doctrine, without deviation since 1794,
has been that homicide committed under the
influence of particular insanity, la not crimi
nal and that such insanity alone authorises
the presumption, prima fade at least, that the
act was done without a consciousness of its,
illegality, or without meral power to abstain

from it. And we haVa aright to presumiothat
both' the theory and practice are the same in
our own Union.
In 1835, Lawrence was iudicted and tried
in the District of Columbia, for maliciously
shooting at President Jackson. His plea was
insane delusion as to the President only ; and,
on proof of facts conducing to sustain that plea,
the Court instructed the jury to regulate their
verdict by the principles of the case of Had
field, and the jury returned a verdict of not
guilty, which has been approved as right.
Iu 1836, Theodore Wilson, who was tried
for killing his wife when in a paroxysm of
particular insanity, was acquitted in New
York — the Court having instructed the Jury
to acquit if they believed that the prisoner,
when he comraitted the fatal act, " Avas not of
sound memory and discretion."
And the Legislature of New York, for the
purpose, as we presume, of recognising and
conclusively settling the principle that an act
done under the influence of insanity shall not
be deemed criminal, has enacted that "no act
done by a person in a state of insanity can be
punished as an offence." This might be liter
ally too comprehensive. But, as just intimat
ed, we should understand it as meaning that
an act influenced by insanity should not be
punished. And, thus understood, does this
statute do more than echo the announcement
of the common law — ^that a homicide resulting
from unsoundness of mind is not murder; or,
more literallv in the language of that law,
that the murderer is a person of " sound mind"
who slays his fellow creature without legal
authority or excuse. When insane delusion
prompts the person so afflicted to take the life
of the object of delusion, is not thehomicidal.
act that of an insane being ? Is the man-
slayer, as . to that act, " a person of sound
mind." And, consequently, being, as he must
be admitted to be, of unsound mind, can he
be deemed guilty of murder, if tried by this
acknowledged common law ¦itself? Surely,
on that particulate subject, he should not 'be
presumed to have had such discretion and self
control as an infant 7 years old.
But the counsel, who last addressed you on '
behalf of the CommonAvealth, seemed to thirii^' .
that, by " a person of sound mind," the laAV
intends one whose mind is not unsound in
all respects ? After Avhat I have already said,
a further answer tq this would be superfluous-
He appears to think also, however, that the
doctrine of Hadfield's case is overruled by
other cases, or so much shaken as not to be
entitled to much respect ; and he has alluded
to the cases of Earl Ferrers and of Bellingham
in support of that allegation. But this, too,
is altogether a mistake. The case of Ferrers
was decided before that of Hadfield ; and
cannot, therefore, have overruled or shaken it.
Besides, Earl Fen-ers was not insane, accord
ing lo my conception of insanity ; because all
the facts which incited him lo the killing for
which he was indicted, actually existed ashe
understood them to exist, and were not the
I mere figments of a diseased imagination — and.

312

MR. ROBERTSON'S SPEECH ON

consequently, it. -was vindictive passion, aud
not insane d,elus,ion, that instigated him. So
Lord Erskine hiraself argued in Hadfield's
case ; and by that argument he illustrated the
difference between furious passion and intel
lectual delusion or insanity ; and therefore,
insisted, as I reiterate, that Earl Ferrers Avas
guilty of murder. But, in the same arguinent
he distinctly admitted and successfully urged,
in behalf of Hadfield that, had the facts been
imaginaiy, and not real, then the Earl was so
far insane — and that, the homicide being J;he
offspring of that insane delusion, he was not
legally guilty. Nor is there reason to infer
that file jury considered Earl Ferrers as in
sane. The case, then, when fully and rightly
considered, tends to strengthen, rather than to
weaken, the leading principle recognized and
defined in the case of Hadfield.
The case of Bellingham, who Avas'hung for
the assassination of the British Premier, Per
cival, is entitled to no respect or influence for
any purpose-; because the prisoner was tried,
condemned, and executed within one wee}s.
after he shot Mr. Percival, and was refused
time to send across the British Channel for
witnesses to prove that he was insane. ,He
was hurried to sacrifice in a whirlwind of ex
citement and political alarm — and the report
of the trial furnishes no reason for presuming
that he was insane — indeed the facts, as
proved, Avhen tested by our definition of legal
sanity, might conduce to the. conclusion that
his delusion [was in his deductions from ex
isting facts ra'ther than in the morbid imagin
ation of non-existing facts — in the process
rather than in the source of his reasoning.
And if this had been his actual coudition, he
was not, in the technical sense, an insane man.
There is certainly nothing in the report of the
case indicating that he Avas convicted as a
monomaniac on the ground, nevertheles.'s, that
he had a general knowledge of right and wrong,
or because the law should /jresume a conscious
ness of wrong in the .particular act done un
less the contrary had been clearly proved —
and Avhioh, however true it may have been,
would have been impossible in any other way
than by proof of his particular insanity and
of the fact that it led to the homicide.
Besides, after this conviction, the monoma
niac, Ayho attempted to assassinate the Queen,
was acquitted without any extrinsic evidence of
his unconsciouiness of doing wrong. ¦
In March, 1843, a British jury, under the
instructions of Cli. Jus. Tindal, acquitted
McNaghten on an indictment for murder in
killing Drummond under the influence of an
insane delusion while he was rational on other
subjects. And, in June succeeding, the twelve
•Judges of England, gave a written opinion on
the following abstract question propounded
by the House of Lords : — " What is the law
respecting alleged crimes committed by per-;
sons affected with insane delusion in respect
to one or more particular subjects or persons ;;
as, for instance, Avhere, at the time of the com-;
mission of the alledged crime, the accused'

hnew he was acting contrary to law, but did tha
act complained of with a view, under the in
fluence of insane, delusion, of redressing or
revenging some supposed grievance or injury
or of producing some supposed public bene
fit?" The "Judges hesitated to express an
opinion.-bec'ause, as they very prudentiysaid,
every case should be decided on its own pecu
liar facts, and because also— in assuming that
the person, though laboring under an insane
delusion, knew that he was doing wrong— ihe
question virtually answered itself, andghewed
that the act was not an insane act. But they
answered the question ; and their answer, of
course, was, on the facts propounded, if they
could exist consistently with physiological
truth, that the accused Would not be legally ex
cusable. But they did not intimate that in
sane delusion on a particular subject should
be presumed tobe accompanied with a perfect
freedom of will or consciousness of wrong in
submitting to the influence of the delusion :
but, as I fhink, they clearly intimate the con
trai'y. They say that, if the accUsed labored
under no other unsoundness or defect of mind,
or will, or reason, than an insane delusion as
to a particular fact — an imagined injuiy, for
example — then he should be tried just as a
rational man should be, conceding the ima
gined fact to be true. 'This is all very clear,
and as reasonable as it is clear. But does il
imply that monomania is to be presumed, un
til the contrary be proved, to be thus restricted
in the range of its influence ? Certainly not.
It only mean.s that if, as assumed in the pro
pounded case, the accused did, in fact, know
that he was doing wrong, and (as should have
been added) had the moral power to avoid it,
he should be tried on the concession of the
truth of the fact his morbid imagiuation had
assumed to exist and his peculiar illusion
should entitle him to no greater indulgence.
And, on that point, the Chief Justice, speak
ing for himself and ten of his associates,- said
" he is nevertheless punishable according to
the nature of the crime committed, if he knew
at the time of comraitting such crirae, that he
was acting contrary to law." Now, if a gen
eral knowledge of right and wrong imply a
consciousness of Avrong in the particular in
stance of insane dolusion also, why did the
Judges say " if he knew that he was acting
contrary to law ?" They moreover say that
the consciousness of wrong must be '' iu re
spect to the A'ei'-v act with which he was
charged," In this case, therefore, we find nothing
against the position we are endeavouring to
maintain, nor, in any degree, inconsistent
with the judicial practice ever since Hadfield's
trial; but much m confirmation of it. And
the sustained verdict and judgment of ac
quittal^ in the ease of Mcyaghten, as late as
1843 — is itself a powerful confirmation.
I now feel authorised to repeat that there is
no precedent in the criminal jurisprudence of
England since 1794 which unsettles the prin
ciple then settled in the memorable case of

THB TLIAL OP DR. ABNER BAKER.

SIS

Hatfield, and that, on the contrary, that case
has been made authoritative there and in the
United States sdso by repeated practical and
judicial recognitions. Nor can there be any
doubt that the principle of that case is as we
have explained it to be — that is that homicide
which is the offspring of au insane delusion
on a particular subject is prima facie, not mur
der, because the law presumes that it was done
without legal malice. The verdict in that case
was doubtless the result of the argument,
which insisted on the priuciple just stated;
aud to prove this to you, I will read only a
fragment of that arguraent, by Lord Erskine.
It IS that portion of it iu which he animad
verted on the acquittal of the unfortunate wo
man who killed Mr. Errington for deserting
her after cohabiting with her for years in a
blessed concubinage. After arguing that de
lusion as to facts, for the supposed existence of
which there was no evjdence, was insanity —
he illustrated this conception by insisting that,
as this discarded woman acted ou existing
facts and not ou such as were the phantasms
of a morbid brain, she was, not insane — and
also by then urging the following considera
tions — " But let me suppose (which would liken
it to the case before you,,) — that she had never
cohabited with Mr. Errington, that she never
had children by him, ;and, consequently, that
he neither had nor could possibly have deserted
or injured her. Let me suppose, iu short, that
she had never seen him in her life, but that
her resentment had been founded on the mor
bid delusion that Mr. Errington, who had ne
ver seen her, had been the author of all her
wrongs aud sorrows, and that, under the dis
eased impression, she had shot him. If that
had been the case, gentiemen, she would have
been acquitted ' upon the opening, and uo
Judge would have sat to try such a cause;
the act itself would have been excessively
characteristic of madness, because, being
founded on nothing existing, it could not have
proceeded from malice, which the law requires
to be charged and proved, in eveiy case of
murder, as the foundation of the conviction
Baron Hume, in his commentaries on the
criminal laws of Scotiand— vol. 1, p. 36— af
ter vindicating, with great power and on con
clusive precedents and reasons, the doctrine
weare maintaining, concludes m tiie follow
ing words:-" and, though the person may
have that vestige of reason Avhich may enable
him to answer in general that murder is a
crime, yet if he cannot distinguish a friend
frora ^n enemy, or a benefit from an injury,
but conceives Everything about him to be the
reverse of what it really is, and mistakes the
ideas of his fancy in that respect, for realities
—tiiose remains of intellect are of no sort of
service to him, in the government of his ac
tions, in enabling him to form a judgment as
to what is right or wrong on any particular
"°In all such cases acts done 'within the
sphere and under the influence of insane de
lusion are not to be assumed to be voluntary,
in the rational and responsible sense. Ther*
40

is certainly a volition, and a demonstration cf
it; but it may be, and generally is, an animal
will, impelled by the storms of passion with
out the, guidance of right reason's compass,
or the helm of moral sense. So far as the de
lusion extends, he is the mere automaton of
it. And this was forcibly illustrated by a
criminal trial in France described by Georget>-
in which, under a jargon of incongruous in
structions, such as the Commonwealth's coun
sel now vindicate, the jury found specially
that the accused acted voluntarily and with
premeditation, but that he was insane at the
time of thus acting? And, on that finding,
he was discharged. And what does this
prove ? Why, that the Judge, who, notwith
standing his silly instructions, was corapelled
to discharge hira, was of opinion that the ac
cused had acted voluntarily and premeditat-
edly just as the tiger does when he devours
the innocent and unoffending babe — ^from
mere brute passion or appetite, and, without
reason or sound moral sentiment. The tiger
knows what he does, is actuated by motive,
and his act is voluntary, and, if you please
premeditated— but still the knowledge, tha
volition, the motive, and the forethought are
those only of an irrational, and, therefore, ir
responsible beast of theforest. So, precisely,
the lunatic, when acting under the dominion
of his insanity, knows what he does, is influ
enced by some motive, may act as freely as
any mere aniraal ever can act, and may also
have predetermined to act — but stUl, as to all
these matters— being deprived of the preserv
ing light of reason or of the restraining influ
ence of moral power, he is not, iu these re
spects, what God made him, a rational and
accountable being. So the French Judge de
cided ; so every honest and intelligent Judge
would' decide on the same special verdict, and
such are the premeditation and voluntary
action of mental insanity.
And of all the causes or effects of monoma
nia, jealousy is the most certain, the most
common, and the most infuriating and ungov
ernable. It is a lawless monster — deaf to the
voice of reason, led astray by delusion, and
tortured with sleepless, hopeless, reckless,
agony. Thompson's description of it is aa
true as it is beautiful, when, after portraying
the anxious bliss of virtuous and confiding
love, he says : —
" These are the charming agonies of love —
But should jealousy its venom once diffuse,
It is then delightful misery no more ;
But agony unmixed, incessant gall, corroding
Every thought, and blasting all love's para
dise —
Ye fairy prospects, then, ye beds of roses,
and ye
Bowers of joy, farewell. Ye gleamings of
Departed peace, shine out your last."
If such be the effects of jealousy on the
heart of a sound man, what law can prescribe
rational bounds to its destructive power when
lit is the monstrous oflfspring of a mini in

314

MR. EOBERTSON'S SPEECH OIT

ruing 1 Who shall then say that it has a
morsil sense or ray of reason — or can imagine
that it can be guided by the one or made to
crouch before the power of the other ? No —
like the Blind Giant, it strikes in the dark, is
as dangerous to friends as to foes — and no law,
nor fear, can stay its Briarian hands.
When the infuriate jealousy of an insane
man impels him to the destruction of the vic
tim of his delusion, without any rational rao
tive or actual 'wrOng, should not our reason,
as well as charity, ascribe the deed, altogether
to insanity, and believe that, had the destroy
er been perfectly sound and rational, he would
have revolted at the thought of such a mo
tiveless and horrid act, or never would have
had even a dreaming thought of it ? Was it
not an act of insanity ? And can any act of
insanity be punished by the criminal code of
this or any other just and enlightened land ?
Now, gentlemen, I think that I have a right
to conclude that reason, and policy, and jus
tice, and elementary books, and adjudged
cases all concur in establishing the legal posi
tion for which I am contending — that is, if
you are satisfied that the accused in this case
was, when he killed Bates, insane as to him,
and that the killing was the offspring of that
insanity, the law must acquit him ou this in
dictment. And can one of you doubtthat the killing of
Bates was either justifiable or was the insane
act of a deranged mind ? The act itself prov
ed it; because, if his charges were false,
there was no rational motive for his hostility
to Bates — no other probable or imaginable
reason than his insane conviction that Bates
had, before and immediately after his (Baker's)
marriage, plotted his assassination, outrage
ously maltreated his sister, (the wife of Bates)
and basely defiled his nuptial bed, and ruined
his eonjugal peace, happiness, and honor. It
is demonstrated also oy the simple fact that
he was thus insane as to his wife, and Bates'
connexion with her, and that, whilst so de
ranged, he shot hira. Would it be possible
for you to believe that, had he never been thus
irrational or deluded, he would have been,
without cause, so violently irumical to his
brother-in-law, or would, in the first instance,
if ever, have thought of taking his life, and
thus bringing on hiraself infaray and ruin —
on his sister widowhood — her children or
phanage — and all his kindred such multiforra
and hopeless sorrow ?
That he was insane when he shot Bates
there can be no rational doubt. 'While at
Knoxville, whither he had gone — while on his
return — and on the road during the day ofthe
homicide, and eveu just before it occurred —
all the insane delusions which had previously
agitated him seemed to haunt his mind with
as much force aud vividness as ever. This is
abundantly proved by various witnesses ; and
moreover there is inteinsic proof of it — ^for the
physical condition, which produced those de-
luioBi, StUl continued without any essential
amelioration ; and had he been perfectiy sane,
-"-tTrhat he had heard of Bates' threats to

shoot him on sight and of his praparatipn to do
so, he would not have attempted to pass his fur
nace by daylight and especially without any
other defensive armor then a small pocket
pistol, with a ball but little larger than a com
mon buck-shot — ^nor would he nave intimated
to Mrs. White on the way his determination to
take Bates' life for his conduct to himself and
wife. The reckless and almost hopeless act
of passing, as he did, and of shooting, as he
did, at the distance of 18 feet, when he must
have known that, if he failed to kill, he would
certainly have been killed with a gun shot
from Bates or some of his slaves, was the off
spring of insanity. Had he been self-pos
sessed, he would either have avoided that per
ilous dilemma or been prepared to meet it
raore pi-udently and on more equal terms. No
rational being would have acted as he did ;
nor ought thereto be any doubt that, had ther«
been no insane delusion, he would not, that
day, have shot at Bates, as he did, witih his
little pistol. The facts which he believed re
specting Bates' Cruel conduct to his own wife
(Baker's sister,) and his attempts to assassin
ate hira, whether true or only the iraaginings
of a diseased mind, had not prorapted any
effort to take the life of Bates when he had
various opportunities of effecting such a pur
pose wifliout much, if any immediate peril.
But iu a paroxism of insane jealousy, he had
attempted to shoot Bates in his own house and
in the presence of theirwives. It was, then,
insane delusion as to his wife, and Bates' im
puted connexion with her, that prorapted him
to seek his life. And if he were insane also
as to Bates' supposed maltreatment of his sis
ter and designs on his own life, this only
aggravated his imagined wrongs. Having re
pudiated his wife and left Kentucky, he had
abandoned his paroxismal designs to kill
Bates. But returning to settle his affairs, he
was excited, by his delusions and by the ap
prehension that Bates meditated his destruc
tion, to pass heedlessly within the range of
his gun, and being, on the first sight of him,
b-ansported with ungovernable fury, he in
sanely dismounted and fired at the side of
Bates as he sat under a shelter where he could
not rationally have expected to kill him, aud
where, whether he hit or missed. Bates must
have instantly seen hira and been able to have
killed him before he could have escaped. Who
can doubt that, had he not labored under in
sane delusions aud been impelled by ungov
ernable emotions arising from them, he would
not then have thus passed and dismounted, or
then, if ever, have shot at Bates ? And who
can doubt, therefore, that, whatever cause of
complaint or apprehension of danger he may
have had, the killing, as it occurred, was the
offspring of insanity— the insane act of an in
sane man ?
And, under all these circumstances, will
the law assume — or can you presume — that
the accused knew that he was doing wrong,
and also had the moral power to avoid it t
Never, never, if the law 'be just and you ra-
Hional. Does it appear here (as in the moot

THB TRIAL OF DR. ABNER BAKER.

91K

ease on ¦which the 19 Judges of England ex
pressed an opinion) that the accused knew
that he was violating the law, was actuated by
rev«ng«, and acted with a moral free will and
full disoretion? Revenge for what? For
Bates' imputed conduct ;to his wife, and de
signs on the life of the accused ? Then why
had he not attempted to kill him for this cause
when he had multiplied opportunities of at
tempting it without personal hazard ? No, it
was not the voluntary vengeance of a sane
mind, butthe unavoidable act of a mind dis
eased and dethroned, impelled by an insane
ccnviction that the act was one of lawful and
righteous self-defence and retribution. Such,
in my judgraent, is the deduction of enlight
ened reason, and the presumption of rational
and well established law.
But not only will the law presurae that such
an act, prompted by such insane delusion,
was committed without a consciousness that,
under all its imagined as well as actual cir
cumstances, it was wrong, or ¦without the moral
power, at the tiraa, to avoid it — ^but, in this
case, there is affirmative proof of unconsci
ousness of wropg, and also of moral inability.
The accused neither atterapted to escape, nor
manifested any contrition or alarm. On the
contraiy, he seemed unusually tranquil, and
self-satisfied— endeavoured to go on foot to the
house of his wife's father, whom he had so
much outraged, but, missing the way, went
to her Uncle's ; slept there all night peace
fully, narrated all the facts and causes in a
spirit of triumph and self-coraplacancy, asse
verated that ha had done a necessary and glo
rious deed — and voluntarily surrendered hira
self to examining Justices, who, upon full
examination, discharged him on the ground of
insanity. Then, were it possible for you to
believe that an insane man, when actuated by
insanity, might be conscious that he is, in that
particular, act, doing wrong, and might have
the moral power to refrain — still you have, in
this case, as strong e'vidence as could exist in
any case to satisfy you that the accused hon
estly believed that, when he shot Bates, he did
right and discharged a sacred duty to himself,
his family and his country.
But, as previously shown, the plea of insan
ity is fortified by an accidental consideration
which has seldom, if ever, before marked a
case of homicide by an insane man. The ac
cused had ample cause (had he been perfectly
rational) to apprehend, as he doubtless did,
that, if he should attempt to pass the furnace,
when Bates was there, he would b^ in immi
nent danger of being shot. He might have
avoided the furnace, or passed iu the night.
Had he been rational and self-possessed he
would have done so, though it was not cer
tainly his duty to leave the highway or skulk
along it under the cover of night. When, on
passing <th» chimney of the furnace, he first
saw Bates sitting vrith his side towards him,
he had good reason to believe that Bates would
soon see him, and would, as soon as he should
see, shoot him with a gun. Then, impelled,

thus far, by au insane mind, he was, at thi*
pregnant crisis, excited by resentment at the
threats of Bates, and by strong apprehension
that his OAvn life was in imminent peril. And,
if these facts would amount almost, if not al
together, to a legal justification in the case of
a man of sound miud, Avhat irresistahle fore*
must they have exerted oA'er a shattered mind,
lacerated with imagined wrongs of the most
aggravated kind, and tortured with the strong'
est and most aggravating passions that conld
ever spring from insane delusion? And who
can tell how completely his mind may have been
dethroned on such an occasion? Was there
any sueh proximate cause of excitement in
the case of Hadfield, or Orford, or "Wilson, or
McNaghten? Or could a clearer or more con
clusive case for unhesitating acquittal on the
ground of monomania ever occur or be imasr-
ined? There could not possibly be a stronger cass
than this for tha prima facie presumption of
law, as well as the satisfactory deduction of
reason, that the killing was the offspring, di
rectly or remotely, of insane delusion, and
was without a consciousness of illegality or
moral poAvor, at the time, to act otherwise
than the accused did act. It does seem to me
that, if this be not satisfactorily manifested in
this case, it never can be inany case of partic
ular insamty. And, therefore, I feel, gentle
men, that it would be trifling with your pa
tience and intelligence to argue this matter
Avith more rainuteness or elaboration. Con
sequently, I will now leave it, as it is, in full
confidence that, as to this, youmust be perfect
ly satisfied.
But now let it he supposed that there is
neither justification nor strong mitigation in
the case of a sane man, and, moreover that
the law does not presume, prima facie, that a
a homicide, under the influence of insane de--
lusion, was without full consciousness of wrong
or moral power to avoid it — still, even on thi»
hypothesis, applying the rule of law recog
nized by the twelve judges of England — that
is, thatthe accused shall be tried as if the facts,
he insanely imagined, were true as he believed
them to be — would you, could you, dare yon
convict him of murder? Let us put the case.
Then it is to be admitted that Bates treated
his own Avife as Dr. Baker believed he did;
that he had conspired with his ovm slaves to
assassinate the Doctor, and had made attempts
on his Bfc; that he had often had criminal
connection with the Doctor's wife, in his oiivn
(Bates') house, and in his (the Doctor's) bed
— and then add the undoubted fact that Bates
had declared that he would shoot the Doctor,
on sight, if he should ever return to Kentucky;
and that the Doctor had good cause to appre
hend that this would be attempted aa he
passed the furnace, and, that, to shoot Bate«,
if possible, with his pistol before Batei conld
draw his gun on him, was hia only defeniir*
expedient for avoiding hia o^wn destm«tion

(IS

MR. ROBERTSON'S SPEECH ON

while in the act of passing the furnace. Upon
these facts, was he guilty of murder? To de
cide, that he was; would outrage reason, justice
and law.
Thien, gentlemen, we have, as we think,
sufficiently shown, 1st. That the accused, if
he had not been, in any degree, insane, had
strong grounds of justification, and that, at
leasti his case is reduced below the grade of
murder; Snd, That he was insane as to Bates
and his own wife; 3d, That this insane delu
sion-influenced him to pass the furnace as he
did, and was either the predisposing or actua
ting cause of the homicide: 4th, That the law
presumes that ho was either not conscious of
doing wrong when he fii-ed his pistol at Bates,
or had not the moral self-control necessary to
enable himtoforbear; .'5th, That there is strong
affirmative proof, in this case, of the absence
of such consciousness and moral ability; and
6th, and lastly, that evenjif you could, neverthe
less, believe that the accused had uo ground of
justification, and had both a consciousness that
he ¦was doing wrong, and the moral poAver to
forbear, still, admitting, as you then would be
bound to do, that all he imagined and believed
was true — you could not justly or legally
bring in a verdict of guilty of the charge of
murder — but ought to acquit tho prisoner.
It seems to us, therefore, that you cannot
doubt that he is not legally guilty of murder.
But the law, iu its wisdom and benignity, de
clares that if, on any essential point, you have
a strong rational doubt of his guilt, you must
return a verdict of "not guilty." While con
ceding this in general terms, the counsel for
the prosecution attempted to evade it, by in
sisting that insanity being urged. as an excul
patory fact, the accused cannot escape, unless
he shall have proved it beyond a rational
doubt. But, gentlemen, this is a hyper-tech
nical perversion that Avould nullify the admit
ted rule of law. If you ha've a serious and
rational doubt of the prisoner's guilt, you are
bound to acquit him. This is not deuied.
Then if you have such doubt as to any one
essential element of his guilt, can it be true
that you have no doubt that he is guilty and
ought to be hung? And if you had perplexing
doubt whether the killing was the act of an
insane mind, raust you not, to the same extent,
and in the sarae degree, doubt his legal guilt?
I affirm, therefore, that if you have a legal
doubt, as to any point of fact essential to guilt,
your oaths require you to acquit. Looking
impartially at the facts and intelligently at
the law, can any one'bf you, on the solemn
oaths you have taken, say that you have no
rational doubt ofthe prisoner's guilt on any ma
terial fact or constituent element of guilt in
law? We hope not — we presume uot. TheU
"not guilty" is the verdict.
. I must now close the argument in defence
of the accused. Your verdict may seal his
doom forever. Tour decision may consign
him to the gallows as a criminal, or will send

him to the Lunatic Asylum' as an unfortunate
victim of insanity. In the event of an acquit
tal his friends are determined, for his own
welfare and the security of themselves and the
public, to place hira iu the Asylum in Lexing
ton, where he can do no harm, and may be
finally restored to health, and to reason — to
himself, and to them. If, in these last hopes,
they should be disappointed, and his case
should prove to be imraedicable, still it would
afford them consolation to know that "murder
er" had not beeu stamped on his forehead hy
his country's verdict! And, if he should be
restored, he might yet live to bless them and
that country by his virtues and his talents.
They look, with intense anxiety, but With
flattering hope, to your decision. They feel
that there has already been desolation enoiigli
in his once happy and united, but now mourn
ing and disraerabered faraily. His own afflict
ive visitations and bereaveraents, and the
raclancholy death that they produced, have
filled, to the brim, his grey-headed and pious
father's cup, of earthly sorrow. Must this poor
son's ignorainious sacrifice be added to make
that cup overflow with tears and with blood?
Can the public security be proraoted, or the
public welfare advanced by hanging a crazy
man — who, as "a man, is already dead? 'Does
justice demand — does the law pei-mit it? So,
we say — and a just and enlightened country
will echo, no. Then at "the tomb of the Cap-
nlets," let the progress of premature death be
noAA"- stayed. Let us dig no more graves —
but rather invite all parties to meet over the
grave of Bates, and once more, become friends.
Gentleraen, I came here to heal, not to wound
— to defend a guiltless man, and restore peace
— not to rescue the guilty and inflame unfreind-
ly feelings that have already been too much
exasperated. And if I should be an humble
instrument in effecting these desirable ends, I
shall be grateful for the blessing of being
prompted to the benevolent mission. But
these objects can be eft-ectsd only by the ac
quittal of the accused. His conviction can
add nothing to the happiness of his widowed
sister. His death would not restore to her
the husband Avhom his fatal phrenzy bore from
her bosom. Nor could it heal the wound his
insanity has made on his innocent wife and her
excellent family. His conviction might falsi
fy his plea of insanity, and thus tempt a cen
sorious world to suspect that, being rational
when he charged her with infidelity and de
serted her, he had some cause for the charges
and desertion. And, in this way, her charac
ter aud the meraory of Bates might unjustly
suffer. But your acquittal of him on the
ground of insanity, would put the seal of de
lusion a,nd falsehood on all his suspicions and
accusations, and thus rescue his innocent and
injm'ed wife, surround her with universal sym
pathy and confidence, and relieve the character
of Bates from obloquy and suspicion. And
^then, too, there ¦would no longer be any cause

THE TRIAL OP DR. ABNER BAKER.

317

for the distrust and non-intercourse of the
members of these alienated and distracted
households. Of all his sisters, Mi-s. Bates
should be the most anxious for his acquittal.
Aud the venerable father, who watched over
his infancy, and now mourns over his fallen
condition, should not pray more fervently for
his aequittal than the indignant father of his
outraged wife. The only thing that can re
instate her perfectly and restore her to her un
fortunate husband, is a verdict of not guilty
ou the ground that his conduct to her was so
destitute of any cause to excuse it as to prove
that he an'Us a madman.
You have, gentlemen, a singularly solemn
and important duty to perform. This is tho
most interesting and eventful case I have
knoAvn in Kentucky. It will be a leading
case in tho criminal jurisprudence of the
West. It involves principles as important as
its facts are novel. And not only the safe
ty of the accused, but public justice and secu
rity also, may depend, iu no slight degree, on
your proper understanding of those principles
and right application-of those facts.
The case is, in my judgment, altogether
full and perfect in all its features; and there
is none on record that cau afford a more com
plete and useful precedent on the law and the
facts of insanity in their criminal bearmg.
I have defended the accused fairly, candidly,
and I trust fully. I have made no appeal to
your fears or your hopes — your passions or
your prejudices. I have uttered nothing that
I do not believe; have descended to no petti
fogging artifice — ^but have, throughout, en
deavored to maintain truth, the law's integrity,
aud my OAvn professional honor. If you err, I
shall feel guiltiess. If uij client fall, I shall
still feel that, though others might have defen
ded hrai more ably, none could have done it
more faithfully. And, whatever may result
from your verdict, to him or to others, now or
hereafter, I shall enjoy the comfort of the per

suasion that I have honestly vindicated hi
rights, the wisdom of the law, and the inter
ests of my country.
Upon you, then, gentlemen, rests the re
sponsibility of a just administration of the
law in this great cause. And, whatever shall
be your decision, let it be impartial, conscien
tious, aud fearless. I am sure that none of
you can thirst for this man's blood, or could
derive any pleasure from his condemnation.
And allow mo to add that, in ray opinion,
neither your oavu consciences, nor enlightened
public opinion, nor even the feelings and raore
dispassionate judgraents of the now excited
and persevering prosecutors can, in after
times, approve the conderanation and sacrifice
of' this unfortunate prisoner. To hang him —
the mournful catastrophe being produced as, if
it ensue, I believe it will have been chiefly
produced, by the local influence, and extraor
dinary exertions of that opulent and multitu
dinous baud of prosecutors — avIH, in my hum
ble judgment, excite future remorse in their
bosoms and reflect reproach on the proud and
spotless State of Kentucky.
I must do you the justice to avow, in perfect
candor, that your prudent deportment, so far
as I have heard or observed, during this trial,
absolves you from any iraputation of conscious
ly yielding to auy such influences. But you
know that unusual nieans of conviction have
been employed, and that general excitement
and delusion have been produced; and I knoAv
that they are contagious and difficult to escape
or subdue. I trust that your verdict will be
an honest oue — and I hope that it will be im
partial aud just. If it shall acquit the accused,
I believe that it will tranquilize your bosoms,
hush the tongue of complaint, and extract
from the tooth of calumny all its poison. And
I cannot doubt that a verdict of "Not Guilty"
will be sustained by the law — approved on
earth — and ratified in Heaven.

PRELECTION.

During the winter of 1849, the Legislature of Kentucky so far modi
fied the law of 1833 interdicting the importation of Slaves as to allow
citizens of the State to import them for their own use. Against that
modification, operating as a virtual repeal of the law of 1833, Mr.
Robertson, then a member from Fayette, made the following speech.
On his return home, solicited by fiersons of all parties and persuasions
in his county, to become a candidate for the Convention called to re
model the State Constitution^ he finally allowed himself to be announced
as a candidate, with every prospect of being elected by genral consent.
But shortly afterwards, the agitation of the question of emancipation,
became so all-absorbing as to induce most of the electors in Fayette to
organize themselves into two belligerent parties — "emancipation" and
ULTRA "fRO-SLAVERY"  EACH NOMINATING AND PLEDGING ITS MEMBERS TO SUPPORT
A GOAIJTION TICKET, COMPOSED OF ONE WhIG AND ONE DeMOCEAT  the COUnty
being entitled to two members in ..the Convention. Mr. R. could have
been on either of the Tickets. But, unwilling either to countenance a
premature and suicidal movement for emancipation, or to surrender his
non-importation principles and co-operate with extreme and unreasona
ble PRo-sLAVERYiSM, he Tcfused to sanction either coalition, and denounced
both of them as unnecessary, unwise, and tending to licentious and de
structive results.
A majority of the people ofthe county, thus committed, became exci
ted by the canvass to an extraordinary and almost stultifying degree.
Mr. R. was, coNSEauENTLV, not elected, but was beaten by a Democrat in
THE CITADEL OF Whiogery — cvcn though there can be scarcely a doubt
that a large majority of the voters concurred with him in his Constitu
tional aims and" principles. In addition to the following speech,
other addresses made by him are also herein republished, to show the
general character of those aims and principles, and his prediction of the
consequences which would result to conservatism from such agitations
AND coalitions. And did not these consequences follow?
During that stormy canvass so morbid were the feelings of some pro-
slavery men, as to lead a few into the delusion that Mr. R. was inclined
to abolitionism. And even ever since that election, the vague suspicion
thus uttered, fortified by the unexplained fact of his defeat by the Ticket
that triumphed, has induced some few blockheads to insinuate that Mr. R.
is tainted with some sort of anti-slavery disease. Let all he ever said, or
wrote, or did, on the subject of slavery, test his principles — whether right
or wrong.

MR. ROBERTSON'S SPEECH-

Speech of Mr. George Robertson, of Fayette, 1
in ihe House of Representatives of the
Kentucky Ledislature, on the bill to modify the
law of 1833, prohibiting the importation of
Slaves.Mr. R. observed, that his present condition
of deranged health and oppressed lungs would
not allow him to hope that he should be able, by
anything he could now say, to compensate the
committee for its courtesy in adjourning over
to hear him on this interesting occasion; but
his position on the Judiciary committee, which
reported against the bill under consideration,
and his, perhaps peculiar, and certainly very
anxious feeling respecting its destiny, would
not leave him the choice of entire silence
whilst its fate remains uncertain.
We are, this day, said he, legislating, not
for ourselves only, but for our children — not
for this generation merely, but for posterity —
not for Kentucky alone, but possibly for our
glorious Union. Hence, he must be allowed
to say, that he was surprised and concerned to
hear, as he had heard, from more than two
members already, that, whatever might be
their own opinions — even though, as might be
inferred, they believed the passage of the bill
would operate disastrously to ourselves, and
to those who shall come after us for genera
tions to come — yet they feel bound to vote for
it, because they think that a majority of their
more immediate constituents are in favor of
some such legislation. Sir, said he, I could
neither thus feel nor thus act. The opinions
of the voters of Payette, I neither know nor
have sought to learn — I know my OAvn convic
tions of duty to my oath, to my country,
and to my children — and that is enough for
me. He felt, he said, responsible, not alone
to the freeraen of his county on this subject,
but responsible to his OAvn conscience, to all
Kentucky now and hereafter, and to the God
of the Universe. The opinions of a majority
of those who elected him could not absolve
him from that mora sacred and comprehensive
responsibility. He hoped, and was disposed
to believe, that those opinions harmonized
Avith his own. But, however that might be,
he could not, on such an occasion as this, re
cord, for the inspection of his countrymen and
his posterity, as his opinion, that which Avas
the direct opposite of his clear conviction of
truth and of duty. The philosophy of the
great American principle of representative
democracy seems to be often misunderstood
and perverted. The mass of the people, how
ever virtuons and enlightened, wonld be, when

assembled in campus martius, or elsewhere
unsafe legislators. Such assemblages would
be so liable to the contagion of tumultuary
passions, and so inconsiderate, irresponsible
and head-long iu legislation, as to allow no ra
tional hope of consistency, moderation or con
servatism in their legislative acts. To insure
the prevalence of reason over passion, in the
enactment of laws, our constitutions have all
wisely organized representative departments
for legislation. By our own State Constitu
tion, the people entitled to suffrage have the
right to select' the most enlightened, firm and
patriotic representatives to make laws for the
Commonwealth. Those representatives, not
too multitudinous for a proper sense of indi
vidual responsibility aud grave and dispassion
ate deliberation, assemble iu the Capitol for
consulting together, obtaining correct inform
ation, reasoning with one another, and finally
agreeing, after such intercommunication, coun
sel, and mutual enlightenment, ou suoh meas
ures as Avill, in their honest judgments, pro
mote the general welfare. There is no dan
ger that the popular sentiment, and even pas
sion, right or wrong, will not have suflicient
influence; the only danger is, that it will have
too ranch. If the local feeling, hoAvever
ephemeral or unreasonable, should control the
enlightened and dispassionate convictions of
the representative, then the very same elements
that incapacitate the mass of constituency for
wholesorae legislation, do virtually legislate
in defiance of the judgments of the represen
tative body, and notAvithstanding all the pre
cautions of our Constitution for preventing
any other enactment than such as may be the
oft'spring of reason aud deliberation.
'When any portion of the people send a proxy
to consult and to reason, and to be reasoned
with, concerning the coraraon good, if that
proxy be convinced, by facts and arguraents
elicited in legislative council, that his country's
interest requires him to vote for or against any
proposed measure, those who deputed him
ought to acquiesce, because they sent him under
the Constitution for that very purpose. In or-
gauzing the priuciple of representation, the chief
object of the Constitutiou was to secrete,
through the constituted organs, the popular
sentiments, and thus rectify, and, as far as
possible, crystalize the indigested and too often
turbid eleraents of uucotmselled popular de
cision. "Why communicate to a memberin this
hall new facts — why address to his judgment
or his patriotism arguments to convince
him? Only hecaasa we all expect that, if he he

320

MR. ROBERTSON'S SPBBCH ON

convinced by these facts and arguments, he
will vote according to that conviction. But,
if he must not do this, all those facts and ar
guments are thrOAvn away, and should have
been addressed, uot to him, a petrified statue,
but to those who sent hira. We should do
here as we think they would or ought to do,
if they were here and heard all we have
heard. Mr. Chairraau, said Mr. R., on this fioor,
Kentucky is my constituency — and myiustruc-
tors here, on such a subject as that now before
us, are the opinions and interests of my whole
State, the suggestions of ray own conscience,
andthe convictions of my oavu judgment. Under
these guides, I have always acted in my legis
lative career; and though, while thus acting
under all these sanctions, I have often given
votes which I apprehended would, for a sea
son, be unpopular, my course has, in every in
stance, been finally approved, and, so far as I
know, has never beeu rebuked. And, sir,
when we are right, and have firmness proper
ly to maintain it, Ave need not fear that our
constituents will long condemn us. We un
derrate them Avhen we suppose that they will
not, sooner or later, be right also. And if, '
on the eventful subject now before us, we act
as our own matured judgraents of our duty to
our whole country shall dictate, we Avill secure,
uot only the public approbation, but that
Avhich is even more grateful to the patriotic
statesman, the approval of our own consciences,
now and forever.
Hoping that every member would, uuder
a proper sense of all his responsibilities, ex
press by his vote the conclusion of his own
reason, he would, said Mr. R., proceed in as
summary a form as he could, to address, to
the understandings of the merabers present,
some reasons to show why this bill ought not
to pass; and, in attempting this task, he in
voked the careful attention and candid con
sideration of all present.
The programme of his argument, said Mi;.
R., would be to offer, in a condensed form,
some reasons to shoAv: 1st, That this bill, if
enacted, would operate as a virtual, practical,
total repeal of the non-iraportation law of 1833.
2nd, That the act of 1833 was Aviso in its pur
pose, aud has been beneficent iu its results.
3rd, That the present crisis is unpropitious for
a repeal of the act of 1 833, or any essential
modification of it; and raoreover, any such
movement now is pregnant Avitli unprofitable
commotion, and with other consequences which
must greatly impair, perhaps utterly destroy,
the conservative influence now possessed by
Kentucky in the Union — aud the preservation
of which influence, unimpaired, may by ne
cessary to save the peace and integrity of that
Union; and 4th, That instead of relaxing the
policy of the act of 1833, the interest of the
Commonwealth and its prospective glory, re
quire that non-importation of slaves should
he made faadamental and inviolable, by

being imbedded in the Constitution with a
sanction which would secure it from evasion.
Negro slavery was introduced into South
America for the benevolent purpose of rescu
ing, from oppressive servitude and final exter-
raination, the more effeminate Indian abor
igines. Foreign cupidity and regal power
first imported it into the Anglo-American
Colonies, and fastened it on Virginia against
her will. In her declaration of Independence,
iu 1776, she charged the King of England
with cruel injustice in nullifying, by Royal
vetoes, her colonial enactments interdictmg
the importation of negroes; and, in 1778, she
enacted a statute prohibiting further importa
tion "by sea or by land," except by immigrants
frora other confederate States, and made the
interdict effectual, not by denouncing high
pecuniary penalties merely, but by also pro
viding that any slave, illegally imported,
should be ipso facto free. Under the auspices
of that conservative law, Kentucky was bom
and grew to manhood; and, until after the
adoption of her first Constitution, not even a
citizen could lawfully bring within her borders
a slave bought beyond thera. By a legislative
act of 1794, the 'Virgima act of 1778 was re
laxed so as to legalize importations of slaves
from other States, by citizens of Kentucky for
their oavu use; and, with some slight modifi
cations, the act of 1794 was re-enacted in
1815, and continued in operation until it was
supplanted by the raore comprehensive enactr
ment of 1833, which revived the prohibitions of
the act of 1778, but unfortnnately left them
without any other than a pecuniary sanction,
which is not easily enforced, and therefore has
had but little influence ou the mercenary and
unscrupulous. Thus it may be clearly perceived, that the
characteristic diiference between the act of
1815, and that of 1833, is just this, and only
this — that the former permitted citizens of
Kentucky to buy and import slaves for their
own use, and the latter forbids all such pur
chase aud importation; and it will be seen,
also, that these acts are as difiorent in purpose
and effect, as they are iu the extent of their
application; for whilst the act of 1815 contem
plated an increase of slaves by accession from
abroad — aud the effect of it was a great aug
mentation from that source — the act of 1833
intended to prevent any such accession, and,
as far as it has operated, has had that salutary
effect. Then, as these enactraents are thiis
radically contradistinguished, all who approve
the act of 1533, must approve it for those
features Avhich distinguish it from the act of
1815, and which constitute and identify it as
"the act of 1833." For this reason the act of
1838 repealed that of 1815; and, for the same
reason, the restoration of the act of 1815 will
repeal that of 1833. For all characteristic
purposes of identity, the bill uuder consider
ation, and the act of 1815, are the same.
The hill, if it shall become a law, will, there-

THB BILL TO MODlffY THE LAW OF 183S.

SII

fore, restore the act of 1 81 5; and of course
¦«riU operate as a total repeal of the act of
1833, by repudiating its peculiar policy, and
restoring that of 1794 and 1815.
But had the act of 1833 been the only law
ever enacted for prohibiting the importation of
slaves, the bill would operate as a virtual and
practical repeal of it. An unrestricted right
in all persons to bring to, andsellin Kentucky,
foreign slaves, would not increase tho number
of slaves here beyond the domestic demand —
the supply woilld rarely, if ever, exceed the
demand. Slaves Avould not be irajJorted for
sale in Kentucky, unless persons here would
buy them for use. And it ia not material
whether the citizen buy here- from a trader,
or whethtr he go, or employs another to go to
tome other State and buy and import for his
own use; as long as he wants an additional
slave, has the means conveniently to buy, and
can purchase out of Kentucky, for a less price
than in it, he will import directly Or indirectly.
It is equally evident that, when citizens
either Avaut no more slaves, or have not the
means to purchase more, or cau buy cheaper
here than elsewhere, slaves will not be import
ed for sale in Kentucky. Besides a practical
acquaintance Avith the ways of mercenary
men, and with the history of importations of
slaves, ¦will leave but little, if any, doubt that,
by various devices, the prohibition of importa
tion for commerce ^0 nomine will be evaded and
that Slaves, some how or other, will be imported
as long as profit cau be made by the importa
tion; and no mere penal sanction, as history
proves, will check the tide.
This, said he, is not only probable a priori,
but il demonstrated by the practical nullity of
the acts qf 1794 and 1815. These enactments
did not curtail importations of slaves. This is
proved by the ratio of increase during the ex
istence of these statutes. Aud^this unerring
experience of the past prompted the enactment
of,1833. Then, as the aet of 1815 did not
curtail importatioia for merchandise, can
we go' back to that act, and, with a grave
countenance, say we have not repealed the
act of 1833, virtually, practically, totallyl No,
must be the answer of every candid and ra
tional mau. Then let no member, repeat that
he is for this bill for the purpose of upiiolding
the law Of 1833 — let none such saf that he is
a friend of that act: By the bill he supports
he knocks it in the head. One thing, at least,
cannot be disguised, and that, is, thai every
pro-slavery member, and every one Avhp de
sires an , increase of slaves in Kentucky, is an
advocate of this bill; and that every member
whodoes uot desira the perpetuation of slavery,
or who is opposed to the augmentation of the
number of slaves aud a deterioration of their
quality is in favor of the acf of 1833, and
against the bill.
The act of 1815, as well as that of 1794^
was lubttantiAlly the same aa the bill now
41

under consideration. Each of those statutee
interdicted th« importation of slaves as mer
chandise, but permitted it for the use of citi
zens of this State. But under each of them,
slaves continued to be imported for all purpo
ses, without. aUy practical restraint — and, be
fore 1833, this Commonwealth had become a
slave market, and seemed to be in danger, not
of contamination merely, but of inundation
by superfluous and vicious slaves. Wages
were reduced — mechanics were discoiiraged
and many ejtpatriated — agriculture was decUn^
ing in quality and productiveness — commerce
was becoming less and less profitablei in conse
quence of the reduced net value of domestic
products, and disadvantageous exchanges of
exports for the refuse slaves of the South in
stead of money — and the gloomy prospect
ahead ivas that of progressive, deterioration
and the hopeless prolongation' and aggravation
of Kentucky slavery, without a rational hope
of rescue or amelioration otherwise than by a
radical change in the non-importation law of
1815. This change was effected by the act of
1833, which extended the prohibition ¦ to im
portations by our own citizens for their otra
use. ' This Avas the only characteristic feature
of that act. It was this, and this, alone j,;tha|
identified and distingwshed it as "THB.ACT
OF 1833." All who advocated or approved
that cuactraent were, of course, opposed to
that of 1815, which it repealed. And mJw,
therefore, no person caiv,be friendly tO the act
of 1833, who desires to supplant it by that of
1815, or (Avhichis, in effect, the same thuig,)
to abrogate its conservative interdict against
the importation of slaves "for, use" — and it is
consequently indisputable, that a substitution
of tJie policy of 1815, for that of 1833, is are-
peal of "the act of 1833."
Moreover, said Mr. B., the statistics of
slavery, in Kentucky from 1820 to 1840, would
alone be sufficient for maintaining theforegoipg
conclusion. They show that, from 182Q to
1830, the , slave population of the State had
increased about 40,009 — and that, from 1830
to 1840, the increase was only about 1,400 —
aud as this last period includes two years be
fore the enactment of 1833, during which time
the increase may be fairly assumed, according
to the ratio before 1833, to have been at least
8,000,. consequently the number of slaves in
Kentucky must have been reduced more than
8,000 from .1833 to 1840. These historic
facts prove that the tendency of the- policy of
1815, now sought to be revived, is to great
progressive. augmentation, and that of the act
of 1833 (when upheld) to a gradual diminu
tion. Hence, again, this bill, if passed, will
operate as a virtual repeal of the act of 1833 —
because it will destroy its effect aud invert its
policy. A direct .repeal would be more mag
nanimous. Then, let not any one, rrho pror
fesses to be in fdvor of the act of 1833, einlk
behind such an ambuscade as an ostensibte
modification, vfhich is a rennnciation of the

3ia

MB. ROBERTSON'S SPBBOH OIT

whole purpose of snhitituting that act for that
of 181S.
A considera,tion of the act of 1833 involves
two questions — ^its constitutionality and its
policy. He was surprised that the constitu
tional authority to enact and enforce it had
been deuied iu this debate. The Supreme
Court ofthe State had given a yuie^us to further
agitation of that objection, and both public
sentiment and the concurrent opinions of the
enlightened jurists had ratified and "confirmed
the unanimous opinions of the Judiciary. He
would not, therefore, he said, elaborate an ar-
gtiment on the question of power; but it might
not be improper to make sorae passing sugges
tions upon it. The Legislature has all legis
lative power which is not prohibited either by
the National or the State Constitution. The
only provision of the Constitution of the
Umted States ¦which could affect the authori
ty of the State to inderdiCt the importation of
slaves within her limits is that which delegates
to Congress the power to regulate commerce
among the States. But slavery is, by that
very Constitution, made a basis of representa
tion aud taxation; and is, therefore a funda
mental element of State power. Can such a
State right be the subject of control by Con-
gressl Is it an affair of commerce? Does it
come within the scope of comraercial regula
tion by the Greneral Government? An affirm
ative answer would concede to. Congress pow
er to change the relative political strength of
the States — a power which cannot exist con-
sistently ¦with the constitutional co-equality
and proper independence of the States of the
Umon. Moreover, slavery, iu the States in
which it is legalized by the local law and
therefore recognized and protected- by the
Federal Constitution, is a domestic institution
— and, which is as much under tbe ex;clusive
control of State sovereignty as marriage or the,
legal rights and obligations of paternity. The
relations of master and slave are as purely local
here as those of master and. servant, husband
and wife, parent aud child, or guardian and
ward. If Congress, under the power to regu'
late commerce among the States, could prevent
Kentucky from stopping, the importation or
imnugration of slaves, it might, by the exer
cise of that .power over slaves as mere proper
ty, fasten slavery ou the people of the State
perpetually and even against their will. This
would be monstrous enough. But the power
to do this involves the power , to prevent the
non-slaveholdiug States from continuing so, by,
denying to them the right to prohibit the in
troduction and enjoymentof slaves Avithin their
limits as articles of property subject to cora-
mercial power. No patriot, regardful of jus
tice, or liberty — of social order, or of State
rights, could hesitate to denounce such au as
sumption as absurd and ridiculous. Moreover,
if the act of 1833 be unconstitutional so far as
it forbids importation for use, it must be even
¦lore clearly void for conflict with the com-.

mercial power of Congress so far also as it
prohibits, importation for salel And the con
sequence would be, that the bill now urged
does not go half far enough, and that the acts
of 1794 and 1815 were nullities;
•Nor is the aet of 1833 a violation of the
Constitution of-' the State. The Legisla
ture of Kentucky, as already stated, has
all legislative power that is not prohibited by ,
the Constitution of Kentucky or by that of the
Uuited States. To inhibit the importation of
slaves is a legislative act; and the authority
therefore tp pass such an act needs not to, he
delegated by the Constitution; — it exists imless
it is prohibited by that supreme organic law,
There is no such prohibition nor any rational
pretence for presuraing its existeiice. Then
the power exists.
The vindication of the policy of the act of
1833 did not seem to Mr. R. to be more diffi
cult than that of its constitutionality-. The
objects of the enactment were twofold — Ist,
Some improVeraent ih the quality and some
amelioration in the condition of our slaves — ,
2hd, The salvation of ourselves and our pos
terity from the_curse of inevitable and perpet
ual slavery, by drawing a sanatory ¦ cordon
around the Commonwealth Avhile iu a salvable
state, and thereby preventing such an augmen
tation, as aVcII as deterioration, of slaves as
might not oUly aggravate but injuriously pro
long the slavery of the black race against the
interest and even the wishes ofthe white. In
other words— ^the second, and chief object of
tbe -a.ct of 1833, Avas to secure the poAver to
abolish slavery if public sentiment should
ever be preparedfor proclaiming liberty to the
captive. On the subject of African slavery in the
North American States, Mr. R. had, he said',
always endeavored to look Avith the eye of con
siderate philanthropy aud practical statesmaur
ship! He would rejoice to see all men, of
every color and clime, equal in privileges and
endowmentSj and well qualified for the peace
ful enjoyment of civil, social, and religious
liberty aud light. But a vrise aud inscrutable
Providence had otherAvise ordamdfld; and no
art or policy of raan can change the -pui-pose of
Sod. Whenever the black and white races of
our species are throAvu together iu the same
community it had long beeu his opinion that
it is better for both' that the inferior should be
iu astate of subordination to that AA'hich, u'hder
all circumstances, is the superior. The two races
are immiscible. Amalgamation would be de
teriorating to the white race, ahd, in his judg
raent, inconsistent with the laws of social wel
fare and the dignity aud progress of the more
improved portion of mankind. The tWo in
congruous races cannot live together on terms
of social or civil equality. And freedom,
without power or privilege, is the worst form
of' slavery in disguise. No population can he
more wretched or pestilent than a degrided,
disfranchised cast. A well regulated slavery

OIT THE BILL TO MODIFY THE LA'W OF 1833.

S93

is far bette/for the security of the white race
and the happiness and safety ofthe black.
His conscience, continued Mr. R., had never,
therefore, been disturbed by any morbid senti-
mentalism on the subject of slavery as it exists
in Kentucky. And he could not feel that it is
either impious or irrational to presume that the
enslavement in America of the superstitious
and ferocious Africans Avas approved by Omni
science for the ultimate redemption, regenera
tion, and exaltation of that degraded and once
hopeless race. He believed that it would, at
no distant day, eventuate in the aggregate
wellare of mankind, and especially in the Civ
ilization, liberty and restoration to their native
land of the'captive Africans. In the dispen
sations of Providence, immediate evil is often
the instrument of ultimate good. , The Egyp
tian bondage and self-sacrificing pilgrimage of
the devoted Jews were designed for the whole
some reformation of that distinguished people;
the bloody overthrow of the Canaanites was
the precursor of the enjoyment of the promised
land by the depositories of the oracles of the
true and only Godj the terrible ha'voc and final
subjugation of the Gauls and Britons by the
Roman Eagle, infused into the Celtic race,
then in a state of semi-bar'barism, the elements
of civilization and the priqciples of Christian
ity; the subjugation of tbe imperial Romans
andthe desolation of their fair and voluptuous
country by tiie Vandalism of the North, en
grafted on a declining stock the vital germ of
that enduring liberty so gloriously illustrated
by the Anglo-Saxon race; the sanguinary
persecutions of the Puritaps, and their conse
quent exile to the wilds of America, planted
ia • this congenial land the seeds of civil and
religious liberty; and these seminal principles,
dropped, as from the clouds, in a country re
served until the fullness of time for the hope
ful development and glorious illustration of
moral truth and power among men, even now
have gro^wn to maturity and promise to fructify
tjiie world; and, to prepare this theatre for the
accomplishment of tjie greatest ultimate good,
the uncivilized aborigines were driven from
their council fires and the graves of their
fathers, and now, almost exterminate, wander
inthe far West, homeless, hopeless, and forlorn.
These, said he, are but a few of the infimte
multitude of historic -events, illustrating the
mysterious truth that instrumentalities, wrong
and grievous to human vision, are often em
ployed for consummatmg- 'the most benificent
ends— all things working together for the ul
timate good of mankind and glory of the Ruler
ofthe Universe.
There is a striking analogy, in this respect,
between the phenomena of the moral and those
of the physical universe. The fire from Heav
en in the lightning's flash strikes down the
young and tiie old, the beautiful and the strong,
the patriot' and the sage; and the people
mourn: the relentless tempest of the skies
leaves desolation in it* mournful trackj and

the elements are charged with reckless ruin.
But the lightning and the whirlwind purify a
morbid atmosphere and drive away pestilence.
In like manner moral agents, grievous in their
immediate operation on special objects, may
finally result in aggregate bleSsings. And
who can venture to presume that negro slavery
in America may not have been sanctioned by
Heaven as the most fitting means for effecting
the providential end of saving and ennobling
the doomed African race? The average con
dition of the wretched barbarians captured in
Africa either by their oavu countrymen or by
the kidnappmg whites and brought in chains
to America as slaves, may not have been made
more miserable by any forin of slavery to
which they have been subjected as a collective
class; and that of their descendats has been
improved by their progressive assimilation to
the free and christianized whites with whom
it has been- their fortune to be associated.
Already hosts of the sons and daughters of
African cannibals, redeemed and regenerated
by the genius of Ainerica, are, through the
benevolent process of colonization in their
fatherland, hopefully contiibuting, by their ex
ample, to rescue their color from degradation,
and, by their influence and instruction," to en
lighten and civilize long lost Africa.
As early as the year 1620, only about twelve
years after the advent of the white man to
Jamestown, in Virginia, a British ship im
ported, into that infant colony of forlorn bach
elors, a cargo of unmarried white women, and
a Dutch vessel landed at the same place a few
negroes, i'he women became wives and mo
thers ; and thus though poor and obscure in
the country of their birth, they became the
founders of this renowned Coraraonwealth of
freemen, which herself has been blessed as
the mother of Republics, and has wpn the
honored title of "magna mater iiirum." But the
negroes were doomed to abject and hopeless
slavery in a foreign climate and strange land-
Yet it may be that each of these differently
freighted ships was the upknown harbinger
of future blessings — one to the white race, oy
giving anchorage to the drifting colony and
proraoting its free population — and the other
to the black race by their ultimate improve
ment and final regeneration. Cruel and'unjust
as slavery may be admitted to be in itself,
and mercenary and selfish as may have been
the motives of its introduction and prolonged
existence among us, said Mr. B., nevertheless,
in its colateral and ulterior results, it may, as
one element in the combined agencies in the
world's onward affairs, be finally productive
of more of aggregate good than evil inhuman
destiny. And although, in itself, considered
either abstractly or in its immediate and
personal consequences, it is an enormous evil,
yet he had never doubted that it is more hurt
ful to the master than to the slave— tothe
white than to the black race. He was not of
ths pro-slavery party— far, very far from it.
He had never coneidered elaTeiy in tttwlf a

9S4

MB. ROBERTSON'S SPBICH ON

blessing. He had always felt it as a curse to
the white race. But, as it exists in Kentucky,
it is not now within the compass of human
wisdom, philanthrophy, and power all com
bined, to adopt any systera of corapulsive
liberation which will ba practicable, just, safe,
and sure. Immediate emancipation would be
madness ; and, in his opinion, any organized
effort to initiate now a prospective scherae,
would be premature, unwise, and self-destruc
tive. For hiraself, he could never ' consider
any system wise, however practicable, unless
it is accompanied by seme effectual and bene
volent plan of deportation. He would never
consent that the incubus of a laa'ge mass of
free and degraded blacks should be thrown
on the bosom of his' posterity. Such an evil
would be more intolerable than perpetual
slavery, bad as that might be. And, there
being now about 200,000 slavesn in Kentucky,
he could conceive no proper and effectual pro
vision for deporting all the persons who would
hecorae free uuder the operation of dny sys
tem of gradual eraancipation Avhich he had
ever heard or seen suggested. But if, as many
believe, the physical adaptations and products
of Kentucky would not, of ^themselves, pro
long the existence of slavery while it shadl ex
ist elsewhere, ultimate rescue, in some just
and peaceful mode aad iu the proper time, is
neither hopeless nor iraprobable. Preparatoi'y
to the consuraraation of any such purpose,
non-importation of slaves would be indispens
able. To wear out slavery its natural course
must not be obstructed by successive increase
from extraneous causes. If let alone the pro
blem of Kentucky slavery will soon be solved,
and the period is near when the dawn of uni
versal freedom will cheer the heart, or the
cloud of inevitable slavery will blast the hope
of philanthrophy.' Undisturbed by acces
sions from abroad, slavery here, .if not in its
congenial element, will soon decline to a con
dition in which its extinction may be accom
plished without hazard. But if Kentucky be
as congenial as her Southern sisters to slavery,
it will exist here as long as it shall continue
there, and no legislative policy for hastening
its natural death would be wise or effectual.
In this view the pro-slavery and the emanci
pation parties should unite with the great
conservative party iu closing the door to the
further importation of slaves, and all try the
experiment of inherent and natural causes
on its existence and value. If the pro-slavery
party be right, the experiment will secure a
sufficient number of slaves aud certainly im
prove their quality and value. If the eman
cipation party be right, this policy will effect
their oibject as soon as any they contemplate,
and much more certainly and beneficially.
Consequently, added Mr. R., the conservative
party, of which he was one, must be on the
most eligible platform; and, therefore, all
parties ought to co-operate in making the
policy of the act of 1833 fundamental, self-
sustaining, and inviolate.
Sueh was the view and, such was the chief
STtrpow of those who enacted the BtAtut« of I

1833, and of all those also who so persever
ingly sustained it ever since the enactment of
it. And, sir, said he, this was no new policy.
It was but the echo of the sentipaents of
our beloved fathers frora the first col
onization of Virginia to the year 1794, and
was but a revival of the conservative pqlicy
of Washington, Jefferson, and Madison, in
1778, but with a less effectual sanction for up
holding it. Had the law of 1778 been per
mitted to remain unniodified until l799, when
the present Constitution of Kentucky ¦was
adopted, he thought it not iraprobable that, on
this day, Kentucky would have been blessed
with more than a million of " the. free" arid
" the brave," without one solitary slave.
Whether a similar result would soon or ev«r
be produced by now making the prohibition
and'the sanction ofthe act of 1 779, funda
mental, is a problem which time alone can
solve. But without further illustration, he
submitted these considerations, as sufficient
to prove the wisdom of the act 1833. And,
continued he, so far as that act has been per
mitted to operate, the heneficence of its epfe-
ratiqn should not be doubted. During tho
first seven years of its existence, though it
was often evaded, not only was the num
ber considerably reduced and value improved,
but home production was more profitable, do
mestic commerce more productive, slave pro
perty -more secure and less vexatious, and the
aggregate wealth of the Commonwealth was
augmented from $126,601,004 to neaily double
that amount. This wonderful augmentation
is proved by the Auditor's books, which show
that, in 1S33, the total value of taxable pro
perty was ,1126,601,004, and that in 1840, it
was $272,250,027, which, deducting the in
crease under the equalization law of 1837,
Would leave about, $240,000,090 as the value
of taxable property in 1840, instead of $126-
601,004, the entire value of it in 1833. Al
though the act of 1833 was doubtless not the
only cause that had agency in the production
of this sudden affluence of wealth, y-et un
doubtedly it was the chief aud most efficient
agent. It inspired a new confidence and hope
•—it stimulated and improved agriculture--it
increased the net value of products^t raised
the price of wages, encouraging manufactur
ing and mechanical production, and greatly
augmented the income from our domestic com
merce by returning money instead of negroes
for our exports. Moreover it enhanced the
value qf our slaves to an aggregate prohably
exceeding that of a greater number increased
by inferior and superfluous accessions from tha
South, and added to the capital of the State
hundreds of thousands of dollars annually by
the more profitable sales of slaves for export
ation—several counties having obtained, ia
this way, at least 850,000 each every year,
which was much more than they would have
received had the number of slaves been in
creased instead of being diminished and the
quality made worse instead of better.
. But, since the year 1840, the number of
elaves has been gradually increaaing at the

THE BILL TO MODIFY THE LAW OF 1333.

385

ra,te of from one to four per cent, annually ; I jeopard our peace and that of the Unipn? Ken-

and now the totality is about 193,000. This
progression itself, and more especially the
osculation in the ratio of it, demonstrate that
it has resulted from importations, sometimes
to a less and sometimes to a greater extent, in
violation of the act of 1833. And the Audit-
oj'e report shows also, that, during that pe
riod of eigjht years, the wealth of the State
has been increased only $597,689 — although
during the period of only seven years imme
diately succeeding the act '33, aud when its
prayisions were but slightly violated, the in
crease was about $115,000,000. That report
also shows that, within the last eight years,
the slaves in Christian, a border county re
presented by the author of the bill under con
sideration, had increased from about 6,000 to
about 7;000 ; an increase which must have re
sulted chi^y from illegal importations . These
brief, but undeniable, statistics prove the ben
eficial operation of the act of '33 when it was
reasonably observed, and equally prove the
injurious effects of any material evasion or re
laxation of its sanctions.
But (said Mr. R.,) thu policy of '33 has had
also a salutary influence on the political posi
tion of Kentucky. Since that enactment and
by her contiuued adherence to it, she has ab
stained from any indication of party sympa
thy with either the abolitionism or 'Wilmot
provisoism of tiie North, or the ultra pro-
slaveryism of the South. She has prudently
maintained an independent ground of patri
otic neutrality between these antipodal parties
of sectional.antagonism, threatening, by their
hot temper and reckless collision, the peace
and integrity of the Union. While manifest
ing a determination to maintain her existing
institutions against all foreign i nfluence, she
has, at the same time, evinced a repugnance to
any act that might tend to increase the erabar-
rassments of her slavery condition, or prolong
its endurance beyond the period of its natuyal
life, depending alone on the operation of in
ternal and natural causes. To this neither
the North nor the South ever excepted, or
«ould reasonably except ; and therefore each
section has cordially embraced Kentucky as
an impartial member of a discordant sister
hood. Hence she alone may exercise a suc
cessful umpirage — she alone may still the
fearful agitation of tha free-soil question; and,
tiius embedded as an Itshmus between two
boisterous and turbid oceans, she can , if she
stand firm, save the Union as she has hitherto
saved it, and as her present position will en
able her still to save it. But let her, at this
critical juncture of our National Union, make
a direct movement either for decided emanci
pation or for the perpetuation of slavery, and
then her " occupation's gone" — then she will
be no longer a presidinig arbitress, but a com
mon partizan.
And npw, Mr. Chairman, (continued Mr.
R.) why this new-born and burning zeal to
repeal a wise and benificent enactment that
has survived the ordeal of 16 years' severe
aamtiny aud txial? Why thus heedlessly

tucky needs no more slaves — she has more now
than she wants; and is, every day, exporting.
If 50,000 mare should be imported, the aggre
gate value of all the klaves m the State would
not exceed that of the present number, and
the quality of the entire mass would be cer
tainly degraded. Would not this impolitic
reduction in price and quality be gratuitously
unjust to the present owners of slaves in Ken
tucky? Not even individual purchasers of
foreign slaves would be benefitted. As negro
buyers purchase here extensively for export to
the Salith, the presumption is that they can
not buy slaves of equal quality cheaper elso
where. But, if they could, a repeal of the
act of '33 would, in less than one year, equal
ise the prices. Even now a citizen of Ken
tucky may buy here for his own use better
slaves, at the same price, and with less hazard
and trouble than in Virginia or the South. In
his'county of Fayette, (said Mr. R.) with only
about 2,500 voters, there ara nearly 11,000
slaves — considerably more than are useful or
desired. Only three States in the Union have
more slaves than Kentucky. And not only
has Congress prohibited foreign importation
of slaves and denounced the slave trade aa
piracy, but Virginia, Maryland, South Car
olina, and Mississippi, as well as Kentucky,
have long since formdden the iraportation of
slaves from any other State. It is evident
therefore that the interests of Kentucky do
not require the iraportation; of more slaves,
but forbid it. The passage of this bill would
reduce the value of the slaves now here — di
minish the value of slave labor — reduce
wages — injure the useful class of free me
chanics — agitate the people arid perhaps con
vulse the State — and, by suddenly changing
her commanding position qf nisutrality, at the
most critical and unpropitious crisis in both
doraestic and national affairs, might irapair ,
the just influence of the Commonwealth, and
jeopard her own peace, the security Of the
South, and the integrity of the Union. ' The
passage of this bill is therefore forbidden also
by respect for the wisdom of our predecegsors,
respect for a venerable policy, and prudent re
gard for harmony, peace and security, here
and elsewhere, now and hearafter.
It has been said here (said Mr R.,) that the
act of 1833 was an emancipation movement !
If this be true, a majority of the freemen of
Kentucky and of their representatives were
then and have ever since been emancipation
ists. Yet one of the chief authors of the act
of 1833 by his vote and otherwise, is the
owner of 300 slaves, and pro-slavery almost
to fanaticism. He supported that law doubt
less for the purpose of increasing the value of
his slaves and improving their quality. There
are, Mr. Chairman, continued Mr. R., three
parties in Kentucky in reference to slavery-
one consisting of persons who consider slavery
a blessing to the white race, and perfectly con
sistent with morality and religion— another
composed of persons who look on slavery aa
amoral, eociat and politicalcurset and desire

326

SIR. ROBERTSON'S SPEECH ON

the adoption, at once, of some system of
emancipation, instantaneous or prospective —
and a third composed of persons who, occu
pying intermediate ground, deprecate negro
slavery as an evil especially to the white pop
ulation, but, believing that, in the existing
condition of it in Kentucky, any provision
now foreraaUcipation would be preraature, im
practicable and ultimately Suicidal, are yet
opposed to any act that will increase the diffi
culties obstructing the work or retarding "the
time of eradication, and prefer to await tirae's
developments without disturbance by foreign
importation. Of these three classes, he thought
the first the smallest.in number, aud the last
much the largest. Of this major class were
a large majority of those who adopted and
have continued to sustain the act of 1833.
The wise and patriotic men who enacted that
law looked backward on the history of slavery
and forward to the probable consequences with
which, -without legislative guardianship, it
was pregnant — to the waste of lands, reduc
tion of profits, insecurity of property, and to
demoralization, degeneracy, and possible in-
suiTection-^they knew that the acts of 1794
and 1815, repealing that of 1778, had not, at
all, repressed the importations of slaves for
use or for sale — considering the latitude, soil,
and products of Kentucky^ they hoped that
perpetual slavery was not her inevitable des
tiny — and, desiring not to leave their posterity
overwhelmed by such a state of slavery as to
be unable to do in respect to it jwhat they,
might prefer — they resolved to soothe and
bandage the morbid tumor of negro slavery
in Kentucky before it should become an im
medicabile vulnus — an incurable ulcer.
If men who thus thought aud thus acted
were emancipationists, he, Mr. R., must re
peat that a majority of Kentuckians are, and
long hUve been in the same category. The
Legislature has rejected, "every session since
1833, billB similar to that now under consider
ation. In one sense, it may be true, that the act of
1833 itself, might prove to be a raoveraent to
wards eraancipation; for, if Kentucky be not
adapted to long continued slavery, that act,
vigorousljr enforced, would, in time, place the
country in sucha condition of interest and of
sentiment, as to secure ultimate and easy ex
trication. But no patriotic and sensible pro-
slavery man would be opposed to such a con-
suramation in such a raode. Had slavery ne
ver existed in Kentucky, how raany of her
citizens would vote for inti-oducing it now for
the first time? Certainly not raany, if any.
He who would not do that, could not consist
ently vote for importing a fresh supply of
slaves — for if it would be unwise to initiate,
it must be wrong to do anything to perpetuate
or increase it.
But the chief and only remaining reason
urged for the repeal of the actof 1833, is, said
Mr. R., the fact that the act is not enforced,
and that even the Legislatura itself encourages
evasion of it by special acts legalizing indi
vidual violation of its prohibitions. It is but

too true that such personal legislation does, to
a great and mischievous extent, paralyze the
act of 1833. But this is clearly wrong. The
act ought to be repealed or enforced; and, un
less repealed, it is the duty pf the Legislature
to make it effectual by giving it' a sanction
that will secure it from evasion, instead of
offering, as it does, almost every day, encour
agements to the violation of it. It is alsp true,
that the penalties denounced by the act are So
rarely enforced, that the prohibition operates
on the conscientious only, and thus, to a de
plorable extent,the.aet has become a dead letter.
But the remedy for all this is plain. Instead
of a fine, which scarcely any person will at
tempt to enforce, let the Legislature or the
Convention substitute the emancipation of
every slave who shall be imported in violation
of the act ; and then the law will live and
reign supremely aud effectually ;- for, as every
such slave would assert his rights, the sanc
tion would enforce itself, and slaves would no
longer be illegally imported. ' This argumeht
for a repeal, therefore, is a felo de se — it cuts
its own throat, and is disparaging to Legisla
tive candor and wisdom.
But, said Mr. R., were it even consistent
with sound policy to abrogate the law of '33,
this is not the proper time far such a decisive
movement. And even the agitation of the
subject at this unpropitious session will do
rauch harm. Kentucky, now in a crysalis
state, of eventful transition, looks with min
gled hope and fear to the coming Convention
for organic renovation. All her ¦wisdom and
unimpassioned thought arenecessary to a safe
result.. The subject of slavery will engage
the consideration of the Convention,' and will
be adjusted by the new Constitution, as far as
fundamental law can, settle it. Would it not
be prudent, as well as respectful, to defer this
Avhole matter to -the Convention, unaffected by
legislative instmction or presumptuous anti
cipation? This body has already on more Occasions
thau one gone beyond its legal sphere and ex
pressed abstract; opinions altogether motive
less, unless they Were intended to iristi'uct the
people or influence their delegates in Conven
tion. This, sir, is au inversion of the prOper
and accustoraed course ; instead of reflecting,
it is attempting to manufacture public opin
ion . On the subject of slavery especially, the
people will think and act for themselves. If
they approve the purpose of the act of '33, they
will see that it shall be made permanent and
effectual by a provision in their constitution.
And if a majority be against it, that constitu
tion will be sure to coutain^such provisions as
will paralyse legislative will, so as to keep the
door wide open for the influx of foreign slaves.
The anticipating movement made by this bill
is, therefore, premature and unnecessaiy at
least. It is much more; it is pregnant with
danger. There are thousands of the best and
most inteHigent of Kentuckians who are will
ing to make a fair trial of the issue of slavery,
so circumscribed as to escape all foreign or
^extraneous influence. But if this bill be pasa-

THE BILL TO MODIFY THE LAW OF 1833

31T

ed they wiU construe it aa a pro-slavery move,
designed to perpetuate slavery by iramediately
augmenting tho number of slaAres to auch an
extent, as to place the convention in vinculis
and render the initiation of prospective eman
cipation hopeless to this (generation. They
will feel that a new issue is proposed to them;
and, convinced then that the only or best time
to strike for ultimate relief will be before the
approaching convention, they will rally on
that question. And, on such an issue, so
forced, there will be all-absorbing agitation,
almost to convulsion ; one consequence of
which will be that, throughout the State, the
controling question in the selection of dele
gates to the convention, will be that of initia
tive emancipation now, or perpetual slavery.
The delegates will be elected without regard
to their fitness or their opinions on other fun
damental subjects ; and consequently, there
would be danger that a bad constitution would
be proposed, which ought not to be adopted. *
Sir, said he, let us not rouse the slumbering
lion. Look to the posture of slavery here and
the popular feeling respecting it, Kentucky
now quivers at the base of a heaving vulcano.
Uncover not the crater. Desolation may be
the consequence of an eruption provoked
by the temerity of pacing or even agitating
this reckless and portentous bill. — If the
people are permitted to be sober and tranquil,
untti after the election of delegates, the con
stitution will be safe and good. But heedlessly
agitate them on the stultifying topic of slave-
ty, and there will be neither peace nor safety
— here nor throughout this entire Union.
Many aspiring politicians, of selfish ambition,
and a still larger number of fanatics, on one
side of " Mason's^ and Dixon's line," are
striving to consolidate the non-slaveholding
States on free-soilism as the paramount teat of
National pai-ty — and there are but too many
Hotspur's and. ultra pro-slavery men on the
other and numerically weaker side of the line,
who rashly play into the hands of these "North
Men," and encourage an .issue which, if ever
fully made up, must result in the political
subjugation of the South, or a disruption of
the ifnion. It is the interest of Kentucky to
prevent that fearful issue ; and she can avert
it only by abstaining frora slave agitation
and remaining self-poised, firm and moderate.
He regretted to hear, as he had heard, a ho-pe
expressed on this floor, that Kentucky would
throw herself into the arras of the So'-th and
denounce defiance to the North. It would, he
thought, be much more consistent with her re-
sjiousible position and her lofty patriotism, as
hitherto illustrated, to throw One arm around
the South, and the other around the North,
and with a sister's embrace, hold them fast, as
au affectionate sisterhood of the same blood,
the same name, and same the destiny. A gallant
ship in the perilous strait between Scilla and
Ohdrybdis is not unlike Kentucky now. And ,
carrying out the simile, he hoped'that the self-

*Thia prophecy was literally and woefully
fulfilled. , '

denying crew, like old Ulysses, rwould tie
themselves to tho mast, and, looking neither
to the right nor to the left, but straigkt ahead
to the port of safety — ^wpuld escape the whirl
pool of perpetual slaveiy on the one side, and
the rocks of political abolition on fhe-other.
He repeated that free-soilism, as exemplified
by the " fVilmOt-proviso," is the offspring of
fanaticism and political arabition. That phi
lanthrophy must be affected or insane, which
would coop up slavery so as either to perpetu
ate it in the States where it now exists or drive
it to the bloody crisis of St- Domingo. With
out some outlet for exportation, the present
impracticable numbers in Kentucky could not
be diminished. Forced on us without our con
sent, what, said he, are we to do with them ?
Emancipate them and leave them here ? That
is impossible. Will the States in which abol
itionism is urged as a paramount duty, receive
them and elevate thera to a social and civil
equality Avith their white population ? They
wbuld scorn the proposition. Would they
agree to set apart New Mexico as a sacred fund
foi: paying for such slaves as the owners
might consent to liberate on receiving indem
nity ? At such a proposal they , would
laugh. Then the only ultimate remedy is ex
pansion. But fanaticism insists that it i.s both
a civic and christian duty to dam slavery up
till it shall becorae putrid, or rising to a resist
less torrent, overwhelm all the social founda
tions of order, security and peace. This is in
sanity, or moral treason. But there are those
who, knowing all this, will urge the "Wilmot
proviso," in reference to New Mexico and Cal
ifornia, where without any Congressional re
striction, slavery can never exist. Their ob'
ject, therefore, cannot be to prevent the dese
cration of the soil of those countries
by the footsteps of slavery: But the non-
slaveholding states, if consolidated on such a
national question as that of " free-soil," Avould
hold the rod of erapire, and rule not only the
elections of I'resident, but the destinies of the
Union. Here may lie the lurking clue to the
persevering agitation of free-soilism by North-
em politicians. If the territory recently
acquired by the coramon blood aud common
treasure of the states in which slavery exists
and in which it does not, were congenial to its
existence, could any just and ^patriotic man,
considering'the compromise and recognition of
slavery in the Pederal Constitution, believe
that any act of Congress prohibiting slave
holders in any of the states from emigrating
thither with all their property would be either
politic or just 1 . 'Why deprive the inhabitaulg
of that territory of the rightto decide for themS
selves ? To permit perfect liberty on that
subject, would neither increase the evils nor
prolong the duration of American Slavery,
nor even recognise its legality otherwise than
it is sanctioned by the supreme law of the
Union. But, though he could never vote for
the " Wilmot-proviso," he would not resist it
by war, secession, or nullification. The South
ought not to suffer itself to be .uselessly excited
I by it so as to jeopard its own just share of

SM

MB. BOBERTSOIT'S SPEECH OST

power, or the peace and integrity of the Union.
But whatever the South may do, let Kentucky
stand^aloof, and exhibit another illustration
of tha emblematic motto inscribed in sunshine
on her escutcheon— "UNITED WE STAND,
Divided we ^all."
Had this lot been cast in a land of universal
freedom, he never would consent that its vir
gin bosom should be soiled by the treadof
slaveiy, or its tranquility disturbed by the
cry of a slave- Of course, were he a resident
•f California, he would oppose the introduc
tion of slavery there. But the people of that
country, like the people here, should be left
free to regulate their own domestic relations in
their own way ; and, if they should desire to
have slaves. Congress — though in his opinion
possessing the power to prevent them while
m a territorial state of dependence on the un
limited legislation ofthe General Government-
would act unwisely, as well as unjustiy, to ex
ercise it, and more especially as, in that case,
the act, being altogether unnecessary, Would
seem to be wantonly intended for the political
aggrandisement of one section of the
Union, and therefore would be the more un
gracious and offensive to another section,
which, though not quite so populous, is at
least as intSligent and patriotic.
Slavery in Kentucky, continued Mr. R., is a
moral and political evil. The children of
slaveholders are injured, and many of them
ruined by it ; aud it has greatly reduced Ken
tucky's ratio of political power; for whilst she,,
the first bom of the old " 13," has only ten re
presentatives in Congress, Ohio, younger in
origin and inferior in physical adaptations, has
already twenty-one representatives in the same
body. But the slaves here are so numerous,
and slavery itself is so interwined with the
social or personal habits of the free popula
tion as, in liis judgment, to forbid the adoption
now of any system of emancipation with a
rational hope of a consummation either sa
tisfactory or beneficial. Before this can be
done, the number of slaves must be consider
ably diminished and the people more and
more assimilated to the non-slaveholding
habits and condition. The experiment of non
importation will soon decide whether Ken
tucky is destined long to continue a slave
state, and will in proper time we hope devel
ope public sentiment on that subject. Jt is
the interest of all — the duty of all— ^to try
hatexperiraent. Whatever may be its final re-
aults, its operation will be beneficial to all par
ties — masters and slaves, the pro-slavery par
ty, the emancipation party, and the conserva
tive party. This he had already endeavoured
to show, and he would add nothing more ou
that subject. The only mode of effectuating
the non-importation policy of 1778. and of
1833, would be to make the prohibition and
the Sanction of the former act fundamental,
byimbedding them in the constitution. Then,
the sanction upholding the prohibition, both
would be placed above legislative caprice,
and stand without violation or evasion. "The
constitution ought also to prohibit auy legisla

tive act emancipating any slave existing at the
date of the enactment, without the owner^s
consent, or full compensation. And ha would
prefer that it should also prohibit any legis
lative act for emancipating the post nati with
out a concurrence of three-fifths of each branch
of the Legislature, and also ¦without some
effectual provision for the benevolent and Cer
tain deportation and settlement of all the per
sons emancipated. He would desire a con
currence of more than a bare majority, because
he would doubt the policy and stability of
any systera to which about one half of the
freeraen of the State are oppcsed. But no
reasonable man could object to the initiation
of a prospective system when three-fifths of
the voters, after a satisfactory experiment,
should concur in the adoption of it. But on
this point he would not be tenacious. He
would be satisfied, if a majority prefer it, with
a constitutional power to amend the State,
j ust as the Federal Constitution , in any one
provision without a revision of the whole.
He would be willing also to make illegal im
portation a Penitentiary offence.
In reference to slavery, saidMr. B., thetruo
and only proper or available contest in the se
lection of delegates to the convention, would
be on the question whether the policy of the
act of '33, with the sanction of the act of '78,
should be incorporated in the coristitution.
That issue willbe easily understood by all ;
and if the conservative party prevail, the tri
umph will be permanent, and its fruits will
be satisfactory to eveiy considerate patriotic
and practical citizen . If Kentucky ought not to
be a slave State, this policy will liberate her
as soon as any other, and raore certainly and
satisfactorily. If she be destined to perpetual
slavery, the fact will be soon ascertained, and
the country will acquiesce, without agitation,
in a destiny which -will then be found to be
natural and inevitable. And, sir, said he,
when the issue is made between those who are
in favor of perpetuating slavery and those
who are for standing stiU and doing nothing
which will tend to its perpetuation, the vote
will be apt to prove that the pro-slavery par
ty are in a small minority — and then the over
whelming party of conservatism will, for sU
just ulterior purposes, have the power in their
own hands to use at the proper time and in
the best mode.
For advocating the foregoing plan, and for
uttering the foregoing sentiments he had (he
said) been charged with encouraging aboli
tionism. If this be abolitionism, God bless
and prosper it. He had also been rebuked on
this floor as recreant frora fidelity to Kentucky,
and ungraciously warned that his cheeks
would be mantled with the blush of shame.
He feared no such consequence as likely to
follow his opposition to a bill for the benefit
of " negro traders," at the expense of the pros
perity and happiness of his native and be
loved Commonwealth. But who made this
charge, and against whom was it made ? The
accuser is comparatively a young man who
has no peculiar stake in the welfare of the

the BILL FOR MODIFYING THB LAW OP I8SS.

329

State, nor has done anything extraordinary for
promoting it — a batohelor, unmoved by any of
the sympathies which bind the heart of man
niost strongly to his country — an isolated be
ing — wifeless — childless — homeless — " a root
out of dry ground." And of whom does this
young man thus hazardously speak ? One
whose parents immigrated to Kentucky in the
" hard winter of '79," encountered all the per
ils and privations of the early settlement, and,
after having helped, by their virtues and their
example, to make her what she is, now sleep
beneath her sod in honor and peace — one who
was born in Kentucky and married in, Ken
tucky — ^whose children dead are buried here,
and whose children living' are all around him
with a large posterity identified with the
honour of their native 'Sta.te— one who, now
grown old in the service of Kentucky, never
did anything of which she complained, but
has always endeavoured to contiibute his
humble mite to the establishment of her re
nown—one who is indebted for all he has or
hopes for on earth, to the kindness of Ken
tucky, and expects ere long, to repose, with
his kindred, in the bosom of the mother clay
which gave him birth — one, in fine, who,
without egotism, may be permitted to say that
he is, as he could not but be and ever has been,
every inch, a true Kentuckian in the sterling
import of that honored title. Audit is because
he IS what he is and feels therefore for Ken
tucky's welfare as he does feel, that he is so
much opposed to this " negro tiaders bill.
Believing, as he does, thatthe agitation and
passage of it now will be pregna,rit with dis
honor and irreparable mischief, he feels that,
thoueh he claims no more stoical patriotism
than any other free and filial Kentuckian
oneht to possess in regard to sacrifices for the
benefit ofhis State, rather than be instrumental
in passing this bill, he would, JlfofeHS like suf
fer his right hand to be burnt to the stump
But he feared that, in endeavoring to defeat
this pestilent law, he was on a foriorn hope.
He had heard that the party in favor of it had
42

been organised and enrolled, aud counted a
majority of 22. Still he had some hope that
80 great a misfortune as the passage of the
bill may, some how or other, be averted from
the country. But, having endeavored faith
fully to do his duty, he would be guiltless of
the consequences, whatever they may be. Ou
the subject of slavery, his posterity should ne
ver shake " their gory locks" at him. And if it
shallever be his posthumous fortune to have
a monument to commemorate his poor name,
he would desire no better epitaph than this —
" Born in a slave State, he never disturbed his
country's peace on the subject of Slavery nor
uttered a sentiment or did an act tending to ag
gravate its evils or prolong its existence." Ven
eration for the precedents stereotyped in tha
past history of Virginia and Kentucky — re
spect for the memory of the patriots and
statesmen who established and upheld them,
aad regard for the welfare of posterity, all re
quire the rejection of this bill. And, tohelp,
if anything earthly can help to defeat it, he
would call on the memories of the past, ap
peal to the interest of posterity, and invoke,
.(pointing to the portraits of Washington and
Lafayette,) the Spirit of the Father of his
country and that also of his friend and coad
jutor by his side, both benefactors and liberat
ors of mankind — te hover over this House, and
inspire its members with practical wisdom
and becoming moderation. The welfare of
Kentucky, for generations to come, may be in
volved in this bill. If it fall, Kentucky
ought to clap her hands with joy ; and if the
coming Convention shall also incorporate in
the new Constitution, the policy of '33 with a
sufficient sanction, the page recording these
glorious events, will be one of the brightest in
the annals of our noble Commonwealth, and
the names of the statesmen who shall have
contributed to the luster of that enduring re
cord, will be embalmed iu the memory, and
consecrated by the gratitude of a long line
of blessed posterity.

ADDRESS
To the People of Fayette ¦ when a Candidate for the ConveiiH.on.

The position which I occupy as a candidate
for the Conyention, being misunderstood or
misrepresented — especially on the subject of
slavery — I feel it my duty to you, as well as
to myself and to my principles, to define that
position in a mode which will be accessible to
all and leave no pretext for misconeeptidu
hereafter. The present Constitution of Kentucky is, in
my judgment, the best in the Union. It is not
perfect, because no work of man ever vi»as or
ever will be. Nor is there, probably, one intel
ligent citizen of the Commonwealth, who
would ndt make some alteration in it, if he
could. But no constitution was ever adopted,
which auy one, even of those who concurred
in the adoption of it, preferred in every re
spect. Being a common work, it must be the
offspring of a compromise of conflicting in
terests and opinions, whereby each party to it
surrenders more or less of what he would in
dividually prefer. Although I have but little
hope that we are now prepared to make a better
Constitution than that under whose banner
many of us were born aud our State has
prospered and been eminently honored, yet it
IS ray interest arid my desire that Ave shall
adopt one as good as our collective reason and
experience will enable us to make, all acting
soberly for ourselves and for tiio«;oAyho shall
come after us.
There is great danger that a headlong agita
tion of questions concerning slavery will de-
thrsne reason and instal passion as the arbi
tress in the approaching Convention, and
place in it many members who are neither
soundly conservative on other more radical
subjects, nor in any proper respect qualified
for framing an organic law for the great Com--
monwealth of Kentucky. This agitation I
have long apprehended and anxiously en
deavored, as far as I could, to prevent; and con
sequently, come as it may, I shall feel guiltless
of any of its injurious consequences. It is un
reasonable and could and should be avoided.
I am not one of those Avho believe that do
mestic slavery is a blessing, moral or physical,
to the white race. I cannot believe tliat it
mates us richer, more moral, more religious,
mora peaceful, more secure, or more happy —
nor can I admit that, under its various influ
ences, our children become more industrious,
more practical, or mpre useful; and I ara sure
that free labor is degraded, and laboring free
men greatly injured by slavery. If, in the dis
pensation of an all-wise Providence, it could
be obliterated from the face of the earth, I
shouid consider the achievement as most

glorious and beneficent to mankind ; and
trusting in the benevolent purposes of that
overruling guardianship, I cannot doubt that
the day will come, when all mankind will
be prepared to enjoy, and will therefore
enjoy, civil, religious, and personal liberty
and light. But I apprehend that day is not
our day. I have no hope of living to see even
Kentucky a free State. To cease peacefully
or advantageously here, slavery must run its
n atural course and wear out. And, if let alone
— if neither increased by importations, nor
tampered with by fanaticism — it will run its
race in Kentucky arid find its appropri
ate grave, in its appointed time, as certainly
as Avisdom, benevolence, and power preside
over the destinies of men. Its natural life
may be longer or shorter; but, sooner or later,
its doomed death is certain. I am not for trying,
by empirical patent medicines, to prolong its
artificial life, or hasten a premature and con
vulsive death. But I would administer such
remedies as may make it as sound and 'health
ful as it is capable of being, as long as it is
destined to exist. For reasons which I will
explain on more proper occasions, I am op
posed to all attempts to provide in the new
Constitution, for a prospective system of Eman
cipation. At Ihe same time, I am opposed to
doing or suffering to be done, any thing that
will increase the evils or jeopard the soundness
of slavery as it now exits among us. I am,
therefore, in favor of preventing the importa
tion of more slaves from abroad by some fund
amental provision, which will be supreme and
inviolate. And, for this policy, I will briefly
suggest the following principal reasons, here
after to be elucidated and enforced on more
eligible occasions'.
1st. The non-importation policy has been
adhered to bv our mother, Virginia, ever since
1778; with iLe approbation, of course, of her
statesmen and people, headed, too, by such
patriots .i.< Washington, Jefferson, Madison,
Patrick Henry, Marshall, and Monroe. This
is strong proof of its wisdom.
2nd. It has, in somo degree, and with vari
ous sanctions, been persisted in by Kentucky
ever since she became a State— and Avas made
more comprehensive and stringent than be
fore by the act of 1833, which stood the test of
scrutiny and trial for fifteen years, and was
never shaken until last winter— when it was
virtually repealed under the influence, as I
think, of erroneous conceptions and misguided
feelings, aud against the earnest opposition of
all your representatives.

MR. ROBERTSON'S ADDRESS TO THEPEOPLE OP PAYETTE.

331

3rd. There are now as many slaves in our
State as the best interests of slave-holders
themselves would allow; the importation of
more would only reduce the value of the servi
ces of those we now have, and tend to make
slaves worse and their tenure less secure and
comfortable; and, hence, northern abolitionists
would be pleased Avith that result, and there
fore they favor the policy of increasing the
number and circumscribing the theater of
slaves in all the slave-holding States.
4th. As the law now stands, persons who
wish to buy slaves for their own use will not
generally, if at all, import them, because the
kind they would buy cannot be obtained in
any other State cheaper thap in Kentucky —
the experiment has lately been tried by a com
pany,' whose agent has just returned from
Vnginia without one slave. But exporters of
horses, mules, &c., may exchange their stock
for likely slaves of bad and mischeivous qual
ities, because these they may buy for a re
duced price, which atIU afford them a profit
here — selling, as they might, the slaves ac
cording to appearance, without communica
ting, and perhaps without knowing their vi
cious propensities or other bad qualities. And
thus our slave population would be injuri
ously corrupted, and our peace and security en
dangered. And thus also oul" export trade
would be comparatively unproductive in
consequence of the importation of slaves in
stead of money, and slaves too that would not
increase^the aggregate wealth of the State, but
probably reduce it by a resulting reduction in
the value Ofjslave labor. The history' of our
domestic trade lefore and since 1833, proves ihis
deduction undeniably.
As long as that law Avas reasonably observed,
the prosperity of the State increased in an
unexampled ratio. In seven years imraedi-
ately succeeding the enactment of it, the ag
gregate wealth of Kentucky rose from one
hundred and t^sventy-six millions to about two
hundred and forty raillions of dollars!
It is idle to argue that slaves will not be
imported by negro' traders and exporters of
stock. They were the chief importers under
the laws of 1794 and 1815, both of which, like
the existing law, authorized importations for
use and not for sale; and they will yet be the
almost exclusive importers— and by their op
erations, the currency, as all experience testi
fies, will be emban^assed and reduced by
large investments in negroes, and by extensive
exchanges of stock and- produce for slaves,
instead of money, imported.
5th. As labor is the ultimate test of the price
of products, a reduction in the price of slave
labor, resulting from increasing the number of
' slaves, will produce a corresponding reduc
tion in the exchangeable value of the proceeds
of that labor: and though a buyer or hirer of a
slave may have something less to pay; yet he
will not be, relativaly, a gainer— for the value
of the slave and of his service will be reduced
correspondingly with the diminished cost ot
purchase or of hire, and even in a greater ratio

— the value of augmented production. Not
only also does slave labor tend to the dispar
agement of free labor, and thereby make it
compai'atively rare, but a considerable reduc
tion in the pVice of servile labor must result
in the starvation or expatriation of mechanics
and other freemen, Avhose honorable destiny
it raay be to live and feed their dependent
Avives and children by the sweat of their brow.
And as these useful and productive citizens
leave us, tlieir places Avill be filled by worthless
and coraparatively unproductive slaves, and
this garden of the great West raay finally be
monopolized by a bloated aristocracy, Avhose
staple business Avill consist of breediug, feed
ing, and selling negroes. Besides, as this gen
eration is not responsible for the existence of
slavery, it ought not, by tho voluntary impor
tation of more slaves from abroad, to make
itself responsible for tliroAving on posterity
an accumulated and perhaps unmanageable
and destructive burden.
G th. Not only Virginia, but Maryland, both
Carolinas, Georgia, Alabama, aud Mississippi
have, long siuce, adopted the importation poli
cy — and Mississippi has inserted it in her Cou
stitution. This ought to prove, eveu to the
most ultra of the pro-slavery men, that the
policy is Avise and must be beneficial to them,
as Avail as all to others. And if any of them
Avill still denounce it as an "emancipation
move," they must also consider the Father of
his Country, and other illustrious Virginians,
emancipationists, and Virginia, South Caroli
na, Mississippi, &c., emancipation States! —
This is all humbug — Avhich ought not to de
ceive or mislead honest and patriotic citizens;
and of this you ought to be satisfied when you
see such counties as Bourbon, Mason, Shelby,
Jefferson, Boyle, Garrard, Madison, and a host
of others, uniting, some of them almost unani
mously, in the purpose of prohibiting, in the
new Constitution, the further importation of
slaves. For these, as Avell as other reasons, the
owners of slaves, and those who neith6r OAvn
nor Avish to oaati any, ought to favor non-im
portation. If it be the interest of Kentucky
that slavery shoidd be perpetuated, tliispolicy,
hoAVcver fundamental, would not frustrate, but
AVOuld prudently, tranquilly, and progressively
promote that destiny by rendering slave prop
erty more' desirable and productive.
The emancipationist, as avcH as thc perpetu-
alist, should advocate the same policy of non
importation of more slaves for thc foUoAving
reasons: Ist. If, in climate and products, Kentucky
be as much adapted as tho planting and more
Soutiiern States to slave labor, slavery Avill
exist here as long as it shall continue there,
and no legisiative expedient can prevent it;
and, on this hypothesis, surely the philanthro
pist Avould desire to see slaves as good and as
comfortable as possible, and as little subject
as possible to be torn from those they love.

332

MR. ROBERTSON'S ADDRESS TO THB PEOPLE OF PAYETTE.

2nd. Emancipation now is utterly hopeless
— public sentiment is not prepared for it — and
even if it Avere othenvise, no permanent, just
and practicable scheme could be devised until
the number of slaves shall bo considerably
diminished — and this can be effected only by
non-importation aud voluntary exportation.
If this generation, or its successor, be destined
to see the day of universal freedom in Ken
tucky, the daAvn of that day will have been
preceded by non-importation.
3rd. If it be the interest and destiny of Ken
tucky to get rid of slavery, that result Avill be
accomplished by non-importation more certain
ly, more satisfactorily, and more speedily than
in auy other mode. On the hypothesis sugges
ted, public sentiment, backed by interest, Avonld
soon begin to converge to that point, and the
ultimate result would be accelerated by antici
pation. This, I think, might be made evident
by various considerations, if it be assumed as
true that slavery is incompatible Avith 'the in
terest and high destiny of our State. If, then,
emancipation be prudent and practicable at any
future period, non-importation Avill not only
be indispensable, but will certainly lead to it.
Aud if it be not prudent or practicable at some
future day, non-importation aa-UI improve the
quality and value of slave property, and pio-
mote the peace, security aud wealth of the
State. I, therefore, am not of any extreme party.
I am for a Constitution whicli AVill guaranty
the inviolability of slave property — and also
prohibit future importations of slaves, with a
sanction that will uphold the prohibition. I
am also in favor of a provision authorizing,
like the Federal Constitution, partial araend-
ments ¦without involving, as our present Con
stitution does, the whole organic fabrick.
And in this I am sustained by the Convention
party, Avho, in their published programme,
recommend such a provision. I would not
object to the legislative power to provide for
prospective emancipation Avhenever three-fifths
of the people decide in favor of it; Avhich ma
jority, or something near it, I would require
for any other amendment — believing that no
Constitution could have proper stability if a
bare majority could, afr<any time, change it.
I have, much to my surprise, hoAvever, heard
of some persons, Avho, whilst they aver that they
approve the non-importation policy, are, never
theless, somehow or other, so much opposed to
its being made fundamental, as to have re
solved to vote for no person as a delegate to
the Convention, who, though coincident with
theni in every other matter, Avill.vote to embed
non-importation in the Constitution so as to
make it operate effectually! This feeling is,
to me, inscrutable. Thc act of 1833 Avas,
for years, almost a dead letter — the acts of
1815 and of 1794 Avere mere mockeries, and
had no operation. Besides, if the legislature
havo the power, it will, as ahvays hitherto,
legalise jftdividual importations, at the cost of

the public treasury, and thus paralyze and
render unequal and contemptible any mere
legislative enactment prohibiting importations.
If non-importation be right — it must be right
to secure the enforcement of it; and it must
be as right and proper to secure this by the
Constitution as any thmg else that should be
secured inviolate. And, as history abundantly
proves, he cannot be practically in favqr of
the act of 1833, who would even disapprove a
constitutional provision to the same effect.
If it should be found inconvenient, the people,
under the clause authorizing special amend
ments, could, and soon Avpuld strike it out.
The only object of inserting it in the Consti
tution is to place it aboA'e legislative caprice,
arid make it stable and uniform as long as
public sentiment shall approve it.
Noav, why cannot all good and Avise men; —
all Avho wish to preserve the peace, the reason,
and the safety of the CommonAvealth — all
who, prudent aud firm, of Avhatever party, de
sire to accomplish the best of practical ends,
and to uot lose eveu these, as well as more,
by recklessly attempting what is either unat
tainable or unreasonable — why cannot — why
Avill not all such men unite on the foregoing
platform? Eraancipation, prospective or immediate, in
ray judgraent, is not the true or proper issue;
and I do seriously apprehend that the agita
tion of it by pro-slavery men or emancipation
men Avould result in the defeat of the non-im
portation policy and in the production of per
nicious passions and disorganizations which
the forlorn wisdom of an age may not cui-e.
The late Convention at Frankfort, as I un
derstand, proposed to Avaive that issue and in
sist only on non-importation and the right to
adopt special araendments of the Constitution.
I believe that, in their sober senses, a large
raajority of the people Avould co-operate in
preserving the peace aud guarding the security
of the State, by uniting ou the only safe or
practicable point of concurrence, whereby all
Avould be finally benefited and none would
surrender anything of principle or of attaina
ble interest. It seeras plain to me, indeed
self-evident, that all, whose paramount ob
ject is their country's welfare, should unite on
the non-importation policy, and thereby give
repose to society, stability to our policy,
and security to our institutions. And then
also the people, looking dispassionately at
other aud more fundamental issues, may pru
dently select, throughout the State, their best
and most ti-ustAvorthy citizens to the Conven
tion — without doing Avhich they cannot expect
a good or safe Constitution.
Will it be pradent or safe for those who
may be opposed to emancipation in any form
or at any time, to oppose the non-impprtation
policy merely because others, avIio have been
characterized as emancipationists, have re
solved to support it and are willing to com
promise upon that basis? I could not approve

MR. ROBERTSON'S ADDRESS TO THB PfeOPLB OF PAYETTE.

333

such a course. I would prefer to go for my
country and its peace, eVen at the expense of
some individual preference as to a matter of
controverted policy. But surely no patriot
ought to oppose a wholesome measure only
because persons, of whom he may feel jealous,
woidd concm- AA-ith him in adopting it.
Many others, and some of them more radi
cal matters, ¦will be considered and settled by
the coming Convention. As I cannot, in this
mode of communication, fully notice any of
these important subjects, I shall not noAV at
tempt it; but Avill cheei-fuUy and candidly ex
press my opinions as to any or all of them ou
more appropriate occasions.
But there may yet be some danger that the
stultifying topic of negroes, bond and free, may
be suffered to overrule every other subject,
however important; and, in that event, not
concurring ivith the ultras of either of the ex
treme and uncompromising wings of an un
necessarily belligerent line, I raight be placed
between two consuraing fires; but, I Avould
still Avish to be an humble mediator; and,
whether heeded or not, should enjoy the con
solations assured to the "peace maker." If
some impracticable persons Avill still strive to
produce an unreasonable excitement and an
unblessed organization on Avhat uoav seems to

be a barren and gratuitous issue, it will be
seen how far the real people of Fayette will
approve or disapprove tho effort. But I do
earnestly hope that extremists of all sorts will
prudently cool down into a considerate moder
ation and forbearance, and that finally, all, or
a large majority of the so"vereign people, Avill
unite, as patriots and brothers, in the solemn
Avork of reconstructing our organic system.
I have hitherto stood quietly by, reposing on
my own fixod principles; aud, with a pure con
science and an upright purpose, there I expect
to stand or fall. I should be pleased to re
ceive the support of all of every party and de
nomination Avho concur in those priciples and
are willing to stand on the platform laid doAvn
in my speech in the last Legislature, and
herein again exhibited. And I am yet to
learn why Iniightnot only receive but reason
ably expect the aid (in every form in Avhich it
may lawfully be given,) of all parties and of
all individuals who concur with me in policy.
Standing under the unpatronized flag of my
oym principles I Avould gratefully accept the
nomination and support of all those Avho are
willing to stand by me on these principles,
and uphold the same or a kindred banner.
GEORGE ROBERTSON.

VALEDICTORY ADDRESS,

Extracts from the Valedictory 4-ddress of Mr. ¦
Roberismi, as Speaker of fhe House of Rep
resentatives of the Kentucky Legislature, at
the close ofthe session 0/ 1851-2.
Gentlemen ofthe House of llepresentatires:
The end has come. We are about to part,
probably never to meet again — certainly not in
our present associations.
For your recorded aud unanimous approval
of my conduct in the position to yyliich your
suffrages called me at the beginning of this
session, I tender you, collectively r.nd individ
ually, my cordial acknowledgements. I had
neither Avisli nor motive to fill this arduous
and responsible station — and, in occupying it
in obedience to your call, I made a sacrifice of
my own judgment and personal interest. I
prefered the floor, because there I might have |
been able to do raore for my constituents and
more in my OAvn behalf than I could hope to
do in the confinement of this chair. Here,
hoAvever, I have faithfully endeavored to do
my whole duty as your presiding ofBcer. The
only reward I desired Or could have expected,
Avas the approbation of my own conscience
and of your judgments. These I enjoy — thefirst
I knoAv — the last I hope. And uoav, in this
closing scene of an eventful drama, before I
pronounce mj last duty of disSlving this body
and all our relations on this floor, I invoke
your attention to some valedictory suggestions
Avhich I think the occasion alloAvs, and justice
to myself, as well as to you and my country,
demands. In attempting this delicate task, I desire to
say nothing unbefitting the dignity of this
chair, the decorum of this House, or my OAvn
proper relations to principles or to men, hith
erto, noAV, or hereafter. My chief purpose is to
place myself rectus in curia — -right before you,
and right before the world, concerning certain
events which occurred during our present ses
sion. This I would have been pleased to do
on some more appropriate occasion — but this
having been prevented by my position in this
chair, I trust that a brief allusion to a feiv
personal topics at this parting moment, Avill
not be deemed unreasonable or indelicate.
1. If my election to this chair has been felt
as a Avouud to others Avho desired to fill it
themselves or wonld have preferred some
younger raan, I am sorry for it. I had no
voluntary agency in it. I Avas placed here Avith
out ray solicitation and against my Avill, as I
now declare, and as I thought you all knew. I
regret this more than, perhaps, I ought. —
But I felt that I could not honorably or con

sistently avoid it. As many of you know,
I did all I could to prevent it. If, by a re
luctant acceptance of the place, I have pro
voked the jealousy of amy human being, the
fault is not mine, and the wrong lies not at the
door of my conscience.
2. In the organization of the standing com
mittees, I may not, as no other Speaker ever
did or could, have given universal satisfation.
I could not be expected to knoAv the exact
aptitudes of all the raerabers — and ¦ if I had
possessed that rare knoAvledge, it could not be
presumed that I should agree AA'ith every mem
ber in his self-estimation. I employed unusual
care in ascertaining the peculiar qualifications
of the members, aud with all the information
I was able to obtain, I made those arrange
ments Avhicli I considered best for the House,
and best for the country. And though I raay
not, in every instance, have made precisely
the most fortunate location, I am hoav, after
the experience of tAvo months, as well satisfied
with that, as Avith any other public act of my
life. A fcAv persons objected that I gave the
Democrats an unjust share of influence. To
this I UOAV reply, that I felt it to be ray duty
to be impartial in the execution of the trust
confided to me — to endeavor to be the organ
of the House, and not of one portion of it to the
exclusion or degradation of another — and, iu
the exercise of the patronage of the chair I
did no more than distributive justice — mdeed
I did not give to the Democratic party a share
of power fully equal to its ratio of numbers.
In the organization of the comraittee on
Federal Relations, my motives and purposes
seem to have been misunderstood by some.
At this I was much surprised. To discharge,
in a proper manner, the duties of that position,
and those also of a raember of the committee
on thc Code, to both of Avhich I allotted the
the same gentleman, Avas as much as any one
raan could be expected to do — aud I consid
ered those tAA'O as araong the most important
committees of the House. Had I been on the
floor, I Avould rather have beeu chairman of
the committee on Federal Relations than to
haA-e occupied the same position on any other
committee. A full, pmdent aud orthodox
report — a report which might have been unan
imously endorsed — on the character, the value,
and the destiny of the Union — on the heresy
of nullification — on the monstrous absurdity
of secession as a constitutional pretension, or
any thing else than a revolutionary act — on
the history and constitutional priuciples of the
tariff and slavery agitations—and on the

TO THB HOUSE OF REPRESENTATIVES.

335

Avisdom of the "Compromise," as a final and
equal adjustment of those sectional controver
sies — such a report would have become Ken
tucky, and, if well done, would have told for
its author, his State, and the Union, noAV and
in all time to come. It Avas expected of Ken
tucky, and Avould have placed her Avhere she
ought to stand — as the chief pacificator aud
conservator of our common country. The
member I selected for that great work Avas, in
my opiuion, as well suited to it as any other
I could have chosen, and I supposed that he
Avould delight to perform it. But he seems to
have considered' such a report as I have indi
cated, or any report, unnecessary.
3. The political atmosphere— too often in-,
fected by the pestilent breath of selfish and
unscrupulous demagogues — has been lately
disturbed at the capitol, by rumors AA'hich,
though artfully vague and intangible, Avere
designed to misrepresent my poor opinions
and conduct concerning domestic slavery. To
rectify honest error, if auy such exist, and to
leave no honorable excuse for delusion in fu
ture, I consider it proper now to take notice of
a subject m wluch I had hitherto presumed
that the public would feel no interest. Duty to
you, as well as to myself, requires it.
On no institution, domestic or 'political,
have I, ever since I Avas a man, thought Avith
a more intense and constant anxiety than on
that of African slavery in our country; and ou
no subject of social organization or economy
have I written or spoken more frequently,
more explicitly, or Avith a consistency more
uniform aud undeviating. My sentiments in
relation to it iu all its bearings, have, for the
last 30 years, undergone no material change;
and I have never concealed or dissembled any
opinion or principle I held on any subjetit of
public concern.
I have never believed that tho enslavement
of the black can be a blessing to tiie lyhite
race; I do not esteem slavery, in itself, an in
dividual or a social good. But, AA'hatevcr may
ho said of its morality, national or personal, I
have a strong hope that American slavery Avill
eventuate in the Ultimate civilization of
doomed Africa — and in the aggregate welfare
of mankind. I am not sure that it has not
been sanctioned by Omniscience as a proA'iden-
tial mean of promoting human progress and
amelioration. And I havo never doubted that
Avhen the Avhite and the black races live to
gether, as they now co-exist in Kentucky, the
Avelfare of the inferior and tho security of the
superior race Avould both be promoted by the
subordination of the former to the tutelage
and dorainion of tho latter. Having gradually
"grown with our growth, and strengthened
with our strength," slavery cannot, be speedi
ly eradicated Avithout convulsion. Whenever
all mankind shall becorae civilized, then all
may be free. Until sorae such approxiraation
to equality and ultimate destiny, slavery, in

isome form raay bo expected to exist; its total
extirpation, to bo desirable, must be the spon
taneous result of a moral, peaceful, and pro
gressive causation. If it be the Avill of Prov
idence that it shall ever cease iu Kentucky, it
Avill decline {gradually into a natural death 'or
to such a state of decay as to induce general
acquiescence in a laAV of the land anticipating
that mode of extinction. Emancipation by
laAV, in any just, satisfactory, or even practical
mode, has hitherto been, and yet is altogether
hopeless in Kentucky for years to come. This,
in my judgment, is the vicAv of enlarged be
nevolence, comprehensive patriotism, and eij-
lightened statesmanship. It has ahvays seemed
to me that our true policy is to let the problem
of slavery work out its oavu solution Avithout
intestine commotion. If thus alloAved to run
its naliural eom^se under thc guidance only of
interest, reason, and thc moral sense, time
would, iu thc only congenial season, mark its
destiny — and, Avhatever that might be, all
would be peaceful and right. If, as many phi
lanthropists esteem it, slavery iu Kentucky be
a curse, premature and compulsive emancipa
tion Avould, as I think, be, to both races, u,
greater curse. Consequently, holding these
^opinions, I have, on all occasions, opposed
any agitation of thc question of emancipation,
instant or prospective — and have probably
suffered as much, by that course, ns any other
citizen. To give as much stability .ind security to
slavery here as possible, as long as it shall con
tinue among ii,5, and to 'promote the Avealth
and true political economy of the State, I Avas
in favor of the non-importation policy of 183.3,
which has been sustained, for many years, by
a majority of the slayehokling Stales of the
Union, and Avas initiated and long continued
in Kentucky by a majority of Avise and good
mon of all classes and denominations. Aud
to prevent the discussion of slavery in any
form on the stump and iu the halls of legisla
tion, I Avould have been pleased to seo that
principle imbedded in the Constitution. To
prevent convulsion and assure progressive im
provement in the fund.imentaliaAv, I also ad
vocated a provision authoriziug specific amend
ments by a conservative majority, Ayithout the
delays, expense, and, hazards of a convention
Avith power to change, at once, the Avhole
fabric of the Constitution. This theory has
been illustrated by thc Constitution of thc
United States, and those also of nearly every
State in the Union except Kentucky. It has
been tried in nearly all the slaveholding States,
and, instead of inviting, it has repressed o.gi-
tation on the subject of sl.iA-ery, because, AA'hen
there is a knoAyn mnjority against emancipa
tion, there Avill be uo danger of thc agitation
of a specific amciiilmcnt for th.it hopeless pur
pose only.
I have often, and on all proper occasions,
denounced abolitionism in all its forms. And
|I have also denounced all interference, by

336

VALEDICTORY ADDRESS DELIVBRBD

Congress, Avith the domestic relations of the
States, or even of the Territories over which
it exorcises legislative poAver. In 1819, on a
bill introduced by myself to organize tho Ter
ritorial Govemment of Arkansas, an attempt
was made by the north to interdict slavery in
that Territory. A protracted and exciting
discussion ensued; and, on that occasion, I ar
gued against the principle, justice and policy
of such an interdict, and predicted thp conse
quences which have followed the persevering
efforts to adopt thc "Wilraot Proviso." In
1820 I opposed in Congress the atterapted re
striction on Missouri. In 1848-9, I again de
nounced all such efforts as the offspring of
blind fanaticism aud of ambition of political
power and aggrandisement — as inconsistent
Avith philanthropy — as unjust to slaveholders
— as perilous to the Union — and as in open
conflict with tiie American doctrine that every
free people ought to regulate their own policy,
au.d especially their oatu domestic relations.
in all I ever yyrote or uttered on the subject
of slavery, the foregoing sentiments were em
bodied; aud nothing I ever said or did can be
shown to conflict with them in the slightest
degree. On this subject I challenge scrutiny,
in this presence and olscAvhere. .
i. A more delicate subject remains to be
touched. It happened to be my fortune to be
among those from whom a choice of tAvo Sen
ators in Congress Avas made. And in those
contests I was made to suffer — most unjustly,
as I must be allOAved to think — not only on
the ground already alluded to, hut still more
severely for presuming to vote for one distin
guished Whig against anotiier!
I trust that I A-yill be pardoned for here
making personal allusions Avhich, under other
circurastances, might savor of egotism, and of
indelicacy to others.
When a small boy — a native boru of Ken
tucky — I Avas doomed to orphanage. At the
age of 19 I was raarried and commenced the
business of life, Avithout a dollar on earth. At
tho age of 25 I was elected to Congress, and was
twice successively re-elected. I Avas pleased
Avith political life, and was cheered Avith en
couraging prospects of success. But para
mount duties to a young and growing family
required me to stifle all political ambitiou and
to resign my seat for my entire third term. I
had but just reinstated myself iu the practice
of my profession Avhen, in 1822, my fellow
citizens of Garrard, required mc to corae to
thc State Legislature on the occasion of the
relief agitation. Having thus embarked ou a
tempestuous sea, I felt it ray duty to ride out
the storm of "Relief" and "Old and Noav
Court," which never ceased until 1827. For
five years 1 devoted myself, at great pecuniary
sacrifice, on the stump, through the press, and
in the legislative halls, to the discussion of the
great questions Avhich then agitated Kentucky
to convulsion and almost to revolution.

In 1828 I accepted the appointment of
Secretary of State under Gov. Metcalfe, in
tending to remove to Frankfort, where I ex
pected to make a comfortable independence in
a few years by a practice in the superior courts,
which then promised to be unusually produc
tive. But, iu December of that year, I was
prevailed on against my own judgment, and at
the hazard of much saerifice of interest and
liberty, to accept a seat on the appellate bench,
Avith a salary of not more than .$1,000 in legal
currency. Iq that uuAvelcorae office I labored
nearly fourteen years, with scarcely ever the
leisure of a "Cotter's Saturday night." I
never sought an office in ray life, though I had
been offered some of the best ofiices under the
federal govemmeut; but acceptance being in
consistent with domestic comfort and obliga
tion, I had declined thera. In tho memorable
"New Election" contest in 1816-17, I had
staked myself as one of a forlorn hope against
a powerful raajority, led by some distinguished
raeu Avho have since been good Whigs. In
1843 I resigned the Chief- Justiceship of Ken
tucky; add resuraed the pl-actice of laAV, by
which I have since raade the chief portion of a
small estate, suflicient for all purposes of
rational comfort and independence. Thus
having subjected myself to self-denial and
self-sacriScing drudgery for thirty years, and
finding myself at last in a condition in which I
could afford to occupy a seat in the Senate of
the Union, I presumed to say, for the first time,
that if the Legislature should think fit to elect
me, I would feel it an honor, and endeavor to
deserve it by faithful service not unworthy of
myself or ray distinguished State. This was
ray position AA'hen I came here. I asked no
raeraber for his support — I resorted to none of
the accustomed raodes of conciliating favor. I
stood perfectly still, aAvaiting the spontaneous
decision of the people's representatives. —
Looking at the history of the State and the
fortune and destiny of its public men, I did
really feel that the time had come Avhen
/ might be a National Senator.
I soon found that friends of tAvo others Avere
resolved on running each of them. I did not
feel it my duty longer to give back. And my
friends deterrained to norainate rae. One of
those others was not nominated at the start —
but most of his friends voted agaiust me; aud
when one of tho three Whig nominees Avas
withdraAvn, they nominated another Whig.
Foreseeing the unpropitious results of such a
contest, I determined not to be responsible for
thera, aud directed the AvithdraAval of ray name
in defiance of the opposing wishes and counsels
of many of my friends. My vote aftciwards
subjected me to proscription by raany old aud
constant friends, some of Avhom had, in the
first instance, been for rae against any person
conteraplated as a candidate. Not to com
plain, but only to illustrate the force of that
fbeling I here state — what you all know — that,
^after the vote alluded to, some of my oldest

TO THE HOUSE OF RBPRBSENTAVIVES.

33.»

friends — my own senator among others — un
der their obligations to conscience, to constit
uents, and to their couutry, voted against me
on all occasions and for every body who Avas
put up against me. How far this proscription
for the same liberty of opinion aa-IucIi they
themselves exercised, may promote tho har
mony or increase the strength of the uoav dom
inant party, time may tell. According to my
creed, it is hardly consistent Avith justice,
policy, or the Spirit of our free institutions;
and I fervently hope that, though it may have
victimized me, it may here pause and not be
come contagious.
In casting the pregnant vote, I ivas influ
enced by no other consideration than a regard
to distributive justice, the harmony of the
Whig party, and my sense of duty to my im
mediate constituents. Had I subraitted myself
to personal or to selfish motives, my vote
might have been very different. I did only
Avhat I felt to be my duty, as well .is iirivilege
— and, so believing, no fear of ostracism
could have changed my course.
In the election of Mr. Clay's successor, my
friends Avere conscquentiy placed betAveen two
Avaves. Nevertheless, they failed, as they
and I'believe, by au accident Avliich might not
occur again in a thousand trials.
Had not this accident occurred, tho result
Avould have been altogether different from
Avhat it was — as many of both parties of this
House confidently believe. ButnotAvithstand-
ing all the combinations and accidents Avhich led
to the actual result, I acquiesce cheerfully in it.
Perhaps it is best — best for me — and best
for the country. . The people's representatives
arc presumed to knoAV Avho are the best quali
fied to sustain, in the National Senate, the
honor of Kentucky and the integrity of the
Union. And I boAV to their decision, hoAvov-
cr brought about. I have thought proper to
say what I have just said to shoAV that ray
name was uot, at my instance or for any fac
tious or hopeless purpose, obtruded on the
Legislature iu the late memorable contests
for seats in the Senate of the United States.
43

Our session, gentlemen, has been unusually
eventful. It has produced more in the same
time thau"^any which ever preceded it. —
'Wliether our constituents will be greatly
blessed by its labors, the fruits of them will
soon show. It is but an act ofjustice, however,
to declare that patriotism, industry and intel
ligence have generally signalized your delib
erations. And noAv about to separate, I fer
vently hope that Ave may all part in peace and
friendship. Should it be the fate of any of us
never to meet again on earth, may w« cherish
no unkind memories of the past. For myself,
I can sincerely declare that, whatever may
be the future destiny of any or all of you, I
shall ever sympathize in your good fortune.
May you all return in good health to your
homes, and meet the srailes of your families,
constituents, andfrieuds. And mayourbeloved
country groAV and prosper under our legislation.
This is a momentous age — an age not of
transition only, but of Avonderful progress and
deA'elopment. And the position of Kentucky
is peculiarly interesting and responsible. This
land of promise — this Avestem world, may
soon wield the destinies of America, and,
through its poAver and exaraple, those of all
mankind. Kentucky — the first bom of the
Ci's-Allegheuian States, and tho mother of
some of thera — may, by right principles and
conduct, save or destroy institutions most glo
rious in tho past and most hopeful for the fu
ture. Let her cling to her motto — let her
prcserye untarnished her escutcheon — let
her maintain her national position — and
all Ayill be well. But, whatever may betide
us, may none of us live to seo the broad flag
of thc Union bow to faction, or the hull of the
constitution of Washington split into fragments.
May it bo our better destiny to live long
enough to behold that noble ship survive, un
hurt, the storm Avhich besets it, and that bright
banner float higher and liigher, until it shall
be the guardian emblem of the civilized earth.
I shall never again occupy this chair, or a
seat ou this floor. I now take my leave of
both forever. Farewell. ^ t
This House is now adjourned sine die.

PRELECTION,

Pursuant to public notice, a large portion of
the citizens of the city of Lexington and county
of Fayette who are opposed to the adoption of
the new Constitution, met at the City Hall on
Saturday morning, the 2d inst., at 11 o'clock.
James O. Harrison, Esq., was called to the
Chair. The object of the meeting being ex
plained, as being for the thorough organiza
tion of the friends of Constitutional Liberty
in this city and county, and the formation of
an association opposed to the adoption of the
new Constitution ; on motion a committee of
four was appointed, consisting of the Hon.
George Robertson, Wm. 0- Smith, Geo. B.
Kinkead, and Dr. John C. Darby, to present a
suitable plan of organization. I'he committee
retired, and in a few minutes returned and
presented the following resolutions.
Resolved, "That we will earnestly and firmly
oppose, by all such means as may become ne
cessary and proper, the adoption of the new
Constitution; and that ,as a mean of effecting
eflicient co-operation, we hereby organize our-.
selves into an association, to be called " The
friends of Constitutional Liberty in Fayette
County." Resolved, That, our friends in all parts of
the county be requested to organize themselves
as soon as possible for the work before them ;
and employ all proper means for disseminat
ing trath on the great subject to be decided at
the polls in May.
Resolved, That the following persons be ap
pointed oflicers of this Association.
President — James 0. Harrison,
Vice Presidents — -Jacob Hughes, Joseph
Bryan, Benj. F. Graves, McCann, R. J. Spurr,
John Cooper, 0. D. Winn, Coleman Graves,
John Lyle, John Q. Innes, James Morrow,
Geo. W. 0. Graves, John 0. Hull, Wm. Cooper,
W. M. Atchison, C. 0. Moore, Robert Nutter,
M. C. Johnson, Elisha Warfield, sr., Thomas

Hughes, Thomas Hemingway, Richard Chiles
John Chisham, Ab'm. Bowman, James Sulli
van, J. B. Cooper, Garrett Watts, Hiram Shaw,
P. E. 'Reiser, 'Wm. Vaiipelt, Geu. Wm. Bryan
S. S. Grimes, Dr. G. B. Harrison, James Mc
Neill, Daniel Brink, i:\N. Yarnall, H. Lamme,
Geu. G. W. Barnaby, Roger Qparles, Edward
Hart, Jacob Hostetter, J. Glass Marshall, Col
J. H. Ohrisman, H. Elgin, John Caldwell, R
Courtney, Talbott, John L. Elbert.
Vigilance Committee — Dr. B. W. Dudley
E., S. Broaddus; A. B. Carroll, J. R. Sloan, E.
W. Hunt, Geo. B. Trotter, Dr. John C. Datby,
Jacob Ashton, Geo! B. Kinkead, Elisha, N
Warfield, Levi 0. Todd, Dr. S. M. Letcher.
Secretaries— Wm. H. Brand, S. P. Scott
Geo. W. Abernethy.
The resolutions were unanimously adopt
ed, after which, the meeting adjourned to meet
at the Court House, at half-past two o'clock
to hear an address from the Committee.
JAS. 0. HARRISON, President.
W. H. Brand, Secretary.
Pursuant to adjournment, the Association
met at the Court House at half-past two o'clock,
when the Hon. Geo.. Robei'tson'arose, -and af
ter a few prelirainary remarks, in which he
briefly but forcibly recapitiilated the objec
tions to the new Constitution, closed by read
ing the following address which was unani
mously adopted.
Upon motion of Geo. B. Kinead, 5,000 co
pies were ordered to be printed in pamphlet
form for circulation.
W. M. 0. Smith was then called upon, and
in a short speech gave his reasons for opposi
tion to the new Constitution. His brief rc-
m'arks Avere impressive aud effective
After Avhich the Association adjourned.
JAS. 0 . HARRISON, Pres't.
\V. H. Brand, Secretary.

TO THE CITIZENS UF FAYETTE.

Fellow Citizens : — A portion of the citizens ¦
of Kentucky lately assembled, from various
quarters of the State at the capitol, for the
purpose of organizing "'^he friends of Consti
tutional Liberty" in opposition to the adoptiou
of the new scheme ot Government proposed
by the Convention elected to revise our exist
ing Constitution. The day of their assem
bling was auspicious to a happy result. On
the birth-day of Washington, freemen of Ken
tucky met together in council to assert aud
maintain the principles of Washington ; on
the anniversary of the commencement of the
glorious battie of Buena Vista, they commen
ced a civil contest far more eventful — a battle
of civjl liberty — the battle of the Constitution
— the battle of Kentucky; on the final issue of
which may depend the destiny of our distin
guished Commonwealth.
In conformity to a suggestion by that as
sembly we, citizens of Fayptte, have convened
at Lexington to pledge our zealous co-opera
tion iu the patiiotic work it has proposed, and
briefly, but candidly, to address our fellow
citizens of the county on a subject most inter
esting to us all, and to our children and child
ren's children, for generations to come.
To be free is the natural right, as well as the
instinctive desire, of all civil ized men. If all
men had the absolute liberty to do whatever
they might will to do, no man could be secure
in the enjoyment of any right. Therefore
some common government over all, and with
power to protect each in the enjoyment of the
cardinal rights of life, liberty, property and
civil equality against a dominant party, is in
dispensable to the practical freedom and se
curity of the citizens of every Democracy, of
whatever form. Liberty without security is a
delusive mockery — it is anarchy, which is the
worst form of despotism. To secure to every
citizen as rauch of natural liberty as may be
compatible with the stability of public au
thority and the security of the fundamental
rights of all, is the great problem of Republi
can Govemmeut, which, if evertobe effectually
solved on earth, has been already exemplified
oUly by the Anglo-Saxon race in the present
age, and in our blessed America. The Amer
ican mode of effecting this great end— the de
sire of all just, men— is by the adoption of
written Constitutions, recognizing the civil
equality of every citizen, imposing limitations
on the power of numbers, and distributing all
opular sovereignty among three co-ordinate
„odies of magistracy, each the organ of the
people within its separate sphere, and so con-

^;

stituted as to operate as a wholesome check on
the others ; and, by thus preserving a con
servative equilibrium of power, to uphold all
guarantied rights against unconstitutional
encroachment by even a ruling party of the
people themselves No limitation on legisla
tive poAver would be effectual, nor any guaran
tee of life, property, or liberty of speech or of
conscience availing, Avithout a Judiciary armed
with authority to expound and administer
all law, and so organized as to be able and
willing to do justice between the high andthe
low, and maintain the supremacy of the Con-
stitutioD iu defiance of the seductions of pop
ularity orthe terrors of power in arsascendant
party, however large or domineering. This, at
last, is the anchor of a free State — the pallad
ium of true liberty and security. For want of
such anchorage, every Republican Ship of
State which the Avisdom of antiquity or the
patriotism of the middle ages ever lauuched
on the ocean of popular will, has sunk under
the Avaves of party passion.
Instructed by the experience of ag es, Wash
ington, Franklin, Madison, and their compeers
in the Federal Convention of 1787, construct
ed a national government on the true and only
available plan : and their mighty work is just
ly considered the model Constitution of every
free, virtuous, and enlightened people. Ken
tucky—the first born of the "old 13," fashion
ed her Constitution by that finished model.
And hence our Constitution, under which We
have lived and prospered for more than half a
century, may be justly said to be the offspring
of the matured and rectified wisdom of the
Father of his Country, and his enlightened
CO- laborers in the cause of American liberty.
It is a shoot from the stock planted by their
hands — the anatomy is the same — every thing
organic, every thing vital, is essentiallv the
same. And therefore, if one be radically defec
tive, the other must be equally so— and, if the
frame-work of the one be right, that of the
other cannot be wrong. We are satisfied that
in the stamina of a Republican Constitution
each of them is as perfect an human wisdOm
will ever be able to make. But, like all the
works of faUible man, both of them are, iu
some portions of their superstructure, imper
fect, .and might, in that respect, be improved.
None of these, however, are esential to vitality
or stability. No prefect Constitution will ever
be made by the bands of man; nor, if such au
one should be given to us by Omniscience,
would we all be satisfied with it. Human
wisdom will never make a Constitution which

340

TO THE CITIZENS OF FAYETTE COUNTY.

¦"^ill be, in all refepects, precisely what any one
of even those who madeit would prefer: all will
have some objection to it. And, consequently,
every citizen of Kentucky, who thinks for
himself, has felt some objections to our Consti
tution, comparatively excellent as enlightened
candor raust adrait it to be. Each of us would
be pleased to see it amended if such partial
araendraents as, incur judgraents, would ira-
prove it, could be adopted. — But none of us
would touch a fibre of its roots : none of us
would essentially change one of the three
great organs of its being. Nor have we any
hope that a Convention, constituted as the
late one was, and determined lo tear up the
Constitutiou and plant a new one iu its place,
will ever establish one as good, or Avhich will
live as long, or bear as good or as rauch fruit.
Under that old Constitution every citizen,
however humble, has enjoyed all the guaran
tied rights, and the Commonwealth has been
distinguished by a prosperity and a name
which should satisfy the reasonable ambition
of any republic on earth.
Although every citizMi of Kentucky has
looked on its Constitution as imperfect, and
would therefore have desired to alter it in such
a manner as would, in his opinion, improve it,
yet, apprehending that it might be made worse
instead of better under the radical process of
a total renovation by a Convention armed
with power over the whole of it, an over
whelming majority persisted in overruling a
call for such a Convention until the eventful
year of 1847 when, as a consequence more of
the timidity of rival parties struggling for
the predominance than of the deliberate
choice of the people, an act was passed for
taking their vote ; and, chiefly as the effect of
the sarae paralysing circumstance, the call
was made rather by default. To enable
the people to vote with their eyes open
to the consequences, the advocates of the call
published a "platform" of the reforms, for
effecting which they desired a Convention. On
that platform, believing it to be made in good
faith, the people concurred in the solicited
call. None of the proposed reforms would
have raade any radical change in the organic
structure of the Governraent. The most es
sential and conspicuous of them were, 1st. A
change in the raode of altering the Constitu
tion, so as to allow partial amendments by
votes at tho polls without the expense, agita
tions aud hazards of ConA'entions with full
power to change the whole — and 2d. A change
m the tenuro of judicial office from life to a
prescribed number of years — but disclaiming
any purpose otherwise to impair the necessary
independence of the Judiciary.
But, notwithstanding that implied pledge,
the Convention has offered for adoption a new
scheme radically different from that proposed
to the people for their consideration, when
they voted to try the experiment of reform.
The new form not only does not permit the
people to improve their Constitution by par
tial amendments, in modes similar to those by
Tj'hiQh the Constitution of these United States,

and the Constitutions of a large majority of
the States, aud of all the slave States in the
Union except Kentucky, raay be amended—
but withholds the right to make any change
¦avhatever, however much or unaniipously it
may be desired, in any other mode thau bv a
Convention, and after a persevering and agi
tating struggle for at least seven years. And
instead of changing merely the tenure of office
as proposed, it makes all Judges, as well as'
almost all other officers, high and low, elec
tive, reduces judicial tenure to unreasonably
short periods, and allows the Judges to be re-
eligible. These changes are not only radical
but essentially irreconcilable with those pro
posed by the platform . Moreover, instead of
such a re-organization of the County Courts
as was contemplated, the Convention provides
for more than 300 new Judges, who, if they
should be abler lawyers than the ordinary
Justices, must cost the state at least $150,000
annually — or, if they should 'not be jurists,
will probably iucrease the drafts on the trea
sury as rauch as $50,000 a year — all for noth
ing ; the present County Courts costing noth
ing and doing their business as well.
In chaining down the Constitution to pre
vent alteration, the Convention, instead of
progressing with the spirit of the age, has, by
one gigantic leap, gone backward, to the
gloomy days of feudal lords and vassals — has
turned its back on modern light and on every
Araerican precedent — has tied a Gordian knot
which can scarcely ever be unloosed unless it
be cut — and would thus fasten on this gener
ation and its posterity a Govci'nment which,
however oppressive or odious it raay becorae,
but few men will ever hope to change other
wise than by revolution. This surely is not
"progressive Democracy." We should sus
pect rather it was a device of 'Whig lawyers
in the Convention, to damn the whole scheme
of tho little Democratic majority in that
body. Had the "platform" proposed such a Con
stitution Ave are satisfied that the call of a
Oonvention Avould have been overruled by a
majority as large as that which, relying on
the published basis, voted for it.
And can it be beleived that the Judiciary,
as constituted in the new plan, will be such
as all experience demands and the theory of
every American or modern Constitution (eveu
this new one) requires for maintaining in
violate the guaranties of the fundamental law,
and securing impartial justice between man
and man ? In the whole annals of jurispru
dence no such judiciary ever proved adequate
to either of these indispensable ends of every
good Government. To declare that certain in
dividual rights shall be sacred, or to declare
that the Legislature shall not invade any one
of them, is a humbug, unless the Constitu
tion containing the declaration shall also pro
vide proper and effectual means of maintain
ing Its supremacy over the repugnant will of
a dominant party, however strong. When
this, is not done, the practical power is not
where it ought to be, in the Constitution, but,

TO THE CITIZENS OP FAYETTE OOUNTY.

341

where it ought uot to be, in a Legislative ma
jority, which it is the chief object of every
constitutional limitation to control, in the only
effectual niode, by a firm, honest, and enlight
ened Judiciary.
'With a pliant Judiciary, subservient to the
will of a ruling party, the Constitution will
fail to protect whenever its protection shall be
most needed — to save the poor, the weak, and
the unpopular from unconstitutional oppres
sion. Should a triumphant party pass an act
impairing the obligation of contracts, or an ex
post facto act, or au act punishing a freeman
for his conscience, or robbing him of his pro
perty, the doomed citizen could, with but little
hope of rescue, appeal to a Judge elected by
the same party, for a short period, and anx
iously hoping for re-election .Had such been
our Judges during the memorable "old and
new Court" controversy which agitated Ken
tucky fer many years, they would sooner or
later, have bowed to the persevering aud tre
mendous majority interested in unconstitu
tional "relief acts," andthe Constitution, in
stead of triumphing, as it did most gloriously
through a firm Judiciary, would finally have
gone down and become the play thing of fac
tion. Popular election may not be the best
mode of selecting good Judges. Admitting
the competency of the people to appoint
Judges, as well as the incumbents of the other
departments, when they have proper opportu
nities of doing so, yet the great reason why
they should elect the latter does not apply to
the forraer. In legislation the constitutional
will of the people ought to prevail — and,
therefore they should elect their legislative re
presentatives. The same principle applies
also to most of the duties of the Executive :
but a very different one applies to the Judi
ciary, whose province is, not to echo the public
sentiment, but to decide the law and uphold
justice and the Constitution against an oppos
ing torrent of popular feeling. To make
Judges of the law representatives of public
opinion, like the makers of the law, is incon
sistent and suicidal. And consequently,
whatever will tend to subject the Judiciary to
the fluctuating tide of passion or of party is,
so far, subversive of the American theory of
Constitutional liberty and security. Had the
Convention only provided for the election of
Judges for a period of ten or twelve years, and
declared against a re-election, we would not
have opposed the adoption of the new Consti
tution on that ground alone. But, by reducing
the term ef office to so short a period as six
years, and allowing re-eligibility, that new
scheme of Government holds out a bait which
must subject the Judiciary to a capricious
power, whose will the objects of its creation
and of the Constitution itself require it often
to resist aud control.
Who could expect such a Judiciary, by a
self-sacrifice, to maintain the integrity of the
Constitution against an exceedingly popular
act of Assembly? Who would hope, that before
such Judges the poor and rich, the weak and
the powerful, the popular and the friendless,

the minority and the majority, would have an
equal chance of stern and impartial justice ?
And for what, but to protect those who have
not the power to protect themselves, is a Re
publican Constitution ever m ado ? History
tells a warnin g tale on this momentous sub
ject, and yet tells not — because the historian
cannot know — the one hundreth part of the
corruptions, the prostitutions, and the oppres
sions springing from the organization of such
a Judiciary as that proposed by the late Con
vention. Bat it does record, in burning char
acters, the humiliating fact' that, even in our
gallant sister State, Mississippi, Judges have
closed their courts to avoid giving judgments
— Sheriffs have resigned to prevent execution
— and that, more than once, " Lynch" law has
reigned supreme and unrebuked.
With a prophetic forecast, as Avell as historic
truth, Thoraas Jefferson, in his notes on Vir
ginia, denounced such a servile Judiciary an
the supple instrument of faction and of anar
chy, and said, in reference to it — " An elective
Despotism is not the Government we fought for."
And echo should reverberate through the whale
valley of the Mississippi, " Such an elective
Despotism is not the Government we fought for."
Ou this subject James Madison and his col
leagues in the work of consolidating our na
tional liberties, have recorded, for our safety,
the folloAving in,5tructions:
" In a Monarchy it (an independent Judi
ciary) is an excellent baiiier to the despotism
ofthe prince ; in a Republic it is a no less ex
cellent barrier to the encroachments and op
pressions of the Representative body ; and il
is the best expedient that can be devised, in
any Government, to secure a steady, upright
and impartial administration of the laws."
" The complete independence of the Courts
of Justice is peculiarly essential in a limited
Constitution. By a limited Constitution, we
mean one Avhich contains specified exceptions
to the Legislative authority. Such, for in
stance, as that it shall pass no bill of attainder
or ex post facto laws, or the like ; limitations
can be preserved in practice in uo other way
than through the medium of Courts of Jus
tice, whose duty it must be to declare all acts,
contrary to the manifest tenor of the Consti
tution, void. Without this all the reservations
of particular rights or privileges would amount
to nothing." " The independence of the Ju
diciary is equally requisite to guard the Con
stitution and the rights of individuals from
the effects of those ill humors which the arts
of designing raeu, or the influence of ¦particu
lar conjunctures sometimes disseminate among
the people themselves." " The benefits of the
moderation of integrity of the Judiciary have
already been felt in more States than one."
" Considerate men, of every description, ought
to prize whatever will beget this temper in
the Courts; as no man can be sure that he
may not be to-morrnw the victim of a spiritof
injustice by which he may be a gainer to-day
— and every man must now feel that the in
evitable tendency of such a spirit is to sap the
foundations of public and privata confidence

.342

TO THE CITIZENS OF PAYETTE COUNTY.

and to introduce, in its stead, universal dis
trust." Those are the wise lessons of our fathers,
and their truth is stamped by the experience
of all ages.
And, is it uot as important to confidence,
security, and justice, in a Republic, that
Judges should not be subservient to a domi
nant party, as it can ever be that, in a mon
archy, they should not be the tools of an, ar^
bitrary king'? Is it not even raore iraportant ?
Are not the influence and poAver of an over
whelming raajority of the people in a democ
racy more difficult to withstand than those of
one raan uuder any form of , Goyernment ?
The one, if a monster, is one-armed — the
other might be a Briserian giant with a hun
dred strong arms.
The absolute supremacy of an unchecked
majority of the people of any State is the
most insecure and intolerable of all Govern
ments. The grand object, therefore, of every
American Constitution has been to secure the
Aveak against the strong, the poor against the
rich, minorities against unjust majorities, each
citizen against oppression by all, and the
State itself against factious combinations to
undermine its foundations. A Government
of reason, and not of passion — of truth and
not 01 en'or — of virtue and not of vice — of
just laws and not of unjust men — is the first
hope of every Republican, and the ultimate
aim of every AVell organized Republic. And
all history, as well as right reason, proves that
there can be no security to any individual
right without [organic limitations on the Ayill
of an epheraeral majority. Hence au unlim
ited Democracy is an obsolete form of Govern
ment; and hence also every American .Consti
tution professes, as its leading object, to guard
Liberty, Property aud Equality, against the
arbitrary power of shiftLug majorities, or ra
ther of the Legislature, which is the creature
of the ruling popular majority. And this
they all propose to effect, in the only efficient
raodes, by imposing fundamental limitations
ou Legislative power, and by providing a dis
tinct department for upholding those salutary
restrictions. Without such a body of Magis
tracy all constitutional limitations on tbe in
herent power of majorities would be but cob
webs, and the Constitution itself, which
should be above all,[Ayould not, Avhen its pro
tection would be raost needed, operate at all,
as " the supreme laAV." Without such a tri
bunal a dominant majority raight enforce every
unconstitutional act which ignorance or pas
sion raight induce the Legislature to pass; and
then, for all the great ends of its creation, the
Constitution would be powerless — dead. It
would be a useless body without a soul — a
mere mechanism without inherent motive
power, or capacity of self-preservation. It
would be all theory, and no practice. It would
still apeak ; but its speech would be raeohan-
ical — the cuckoo note of the dominant party
— and when its protection should be invoked,
it would be as dumb and as nerveless ns a
statue. That Constitution which doss not

provide effectual means for maintaining invio
late its theoretic limitations on the will of the
majority, is not, in any true or available sense,
a fundamental and supreme law. It is not,
therefore, in the American sense, a. Constitu
tion. This our Fathers have told us, and, as
their best legacy, Washington, Madison, Jef
ferson, and the most enlightened of their pat
riotic contemporaries have warned us never to
forget that great political truth established by
universal history and consecrated by the im-
raortal work of their illustrious and eventful
day. The new scheme proposed by the Conven
tion, in contempt of all the lessons of expe
rience and ofthe solemn warning of our Patri
archs of the purest and brightest age of
Liberty, would organize a Judiciary in such a
manner as to make it subservient to the very
power which the security of all our guarantied
rights requires that it should ofteu resist and
control. Instead of making the Constitution
supreme over all parties, as every organic sys
tera, to be a good one, must do, it instals the
transient majority as practically the supreme
power over all that concerns the Common
wealth and every citizen of it. In the act of
ils creation therefore, it commits suicide by
the infusion, into its viens, of an insidious
and slow, but sure poison.
Wherever a similar system has been tried,
the laws have been unstable, justice capri
cious, judicial decisions but little respected,
the weak oppressed, and the Constitution
aralyzed. Even in Ohio, where the State
udges are dependent, as they would be here
under the new form, on the breath of a ruling
majority, no Kentuckian can feel auy assur
ance of justice in regard to his fugitive slaves
unless he appeals to a judge ofthe general gov
ernment who may have a judgment of his own
and firmness enough to utter and maintain it
in defiance of the clamor of the multitude.
And though many there may say thatthe eleC-.
tive, periodical, re-eligible judiciary works
Avell, you may find that they are holders or ex
pectants of office or belong to the majority and
Avould therefore, good or bad, praise the ma
chine that works to their own hands. But in
quire of a disinterested, quiet citizen, and he
Avill tell you it is a curse — that it often ' does
crying injustice to obnoxious or uninfluential
persons which the world knows not ef — and
that it uevei stayfs the popular arm of power,
when uplifted to strike down the Constitution.
If such a Judiciary be, on principle, right
iu Kentucky, it would be equally right in
every other State ; aud if right in all the
States of the Union, it must be right also in
tho United States. Then let Kentucky once
adopt the new Constitution, and, by her ex
ample, invite her sister States and the General
Government to adopt a similar judicial system,
and soon, the national majority being opposed
to slavery, abolitionists and free-soilers may
reign supreme through the instrumentality of
a dependent servile judiciary — the last cousti-
Itutional arbiter of the supreme law of the
Union. And then there wul be neither union

TO THE CITIZENS CF FAYETTE COUNTY.

343

nor peace, nor security to slaye property.
Against auch a judiciary the minority of slave
States would protest. For the like reason the
wise and the just ought to protest against such
a judiciary in any State, and, above all, in
Kentucky. A late number of the National
Intelligencer solemnly warns the people of
Maryland (who are about to amend their'Con-
stitution) against the curse of an elective, pe
riodical, re-eligible judiciary.
This is but an illustration of a fundamental
principle of the American Whig party. And
it is equally a principle qf all organized, lim
ited, conservative Democracy. Let either a
Whig or a Democrat, honest and enlightened,
deny it, if, iu his conscience, he can.
In the proposed re-organization of the Ex
ecutive too, the Convention disrobes the Gov
ernor of almost all authority, except that of
drawing a sinecure salary, aud issuing par
dons and remissions of fines. And, as this
\yill be his chief patronage, he may find it his
interest to make a freer use than ever hereto-
I'ore of the pestUent prerogative of remission.
He will still be held responsible for the exe
cution of the law, and yet his subalterns are
not, in auy way, responsible to him. The
keeper of the public money, the Attorney
General, the subordinate Attorneys for the
Commonwealth, the Sheriffs and the Consta
bles, are all to be elected; — and Sheriffs, though
agents of the Treasury, are to be elected, not
by any organ ofthe Stat6,butby small fractions
of it. This mode of appointing Sheriffs was
fully tried in Kentucky from 1799 to 1799; and
Iradition testifies that it proved an intolerable
nuisance to the treasury, as Avell as to private
justice; and thefirst Constitution was, in that
respect, therefore, amended by that which
many desire now to change back to it. But
this is coraparatively a matter of slight con
cern, and is certainly not " progressive."^
The advocates of the Convention claimed
for the people some enlargement of their priv-
ileg-es, and the Convention, in its pubtished
address, professes to have made a great exten
sion of them. But this is not so. The new
Constitution gives the people -only one new
privilega — that of universal election- which
willbe of no practical utility; and it takes
frora them many valuable rights and privi
leges they now enjoy. Whilst it amnsss the
unreflecting with the semblance of a greatly
augmented electoral poAvej-, it provides for so
many and such frequent elections, and of so
many officers, high and low, at the same time,
as,to prevent the pure, careful, and prudent
exerc^e of the franchise, throw all nomina
tions and elections virtually into the hands of
a few busy and selfish managers— degrade the
practical govemment into a trafficking and
corrupting oligarchy— and, finally, produce
among the industrious and working classes, a
paralyzing indifference about voting, and thus
operate so as to concentra^te the elective pow
er on a class that will make a trade of elec
tions. Is this privilege a boon to be struggled
for by wise men? But, as a compensation for
this bubble, the Convention would deprive the

people of valuable rights they have hitherto
enjoyed. Although it is a cherished and time
honored maxim of republicanism, that fre
quent elections of legislative agents is essen
tial to liberty, by securing proper responsibil
ity, aud a faithful representation of the con
stituent will; yet the new Constitution with
holds from the electors the right to vote for
members of the House of Kepresentativos of
the State oftener than once in two years; and
thus, instead of repressing excessive legisla
tion by circumscribing the legislative sphere,
and limiting the duration of the Legisla
ture, it takes from the people the privilege'
pf making laws every year, and leaves the
officers of governmeht themselves unguarded
by the Grand Inquest of the State for a period
of two years. It also requires the counties,
and such a city as Louisville, to be subdivided
into several election precincts, Avhich will
greatly increase the public burthen; and it ar
bitrarily denies to every citizen the right to
vote out of his own precinct, qr even in it, un
less he shall have resided there 60 days imme
diately preceding the day when he offers to
vote. This restriction will frequently dis
franchise some of our best citizens, and al
ways a portion of the poor and laboring clas's,
who have not the means of providing abiding
homes, or do not feel it their interest to do so.
Will any such free white men vote thus to tie
theirown hands and lock theirown mouths'?
The new Constitution nlso apportions re
presentation in such a manner as to deprive
raany counties of their equal share of represen
tative power, and to give to other portions,
and especially the coniincrcial and r.ipidly
growing cities, an unjust preponderance
over the populous .n,g'ricull,ural districts of
the country. This l',ict is indisputable. It
also perpetuates the existing high taxation.
and even requires an increase; and yet it locks
the door of the {reasury against the people
themselves, and forbid? .he extension or com
pletion of AVorks of internal improvenienl,
hoAvever necessary lo the public welfare any
such improvements may become. Can not tho
people be trusted wilh their OAvn >noneyV
Shall they have no poAver to regulate their
own taxes, or lo direct any .ipproprialion of
the proceeds? The new Constitution says
not. Such fetters on the popular right of tax
ation and disbursement, led to the Amerioau
Revolution; and they will neA-er be long en
dured by any people Avho know hoAV to be free.
In providing- for electing four Appellate
Judges by districts, the Convention curtails
and perverts the clectivo privilege; for, ac
cording lo this mode of election, no citizen
will have a right to yole for or against more
than one of the four judges, Avho are to decide
finally on his constitution and his dearest
rights. And the most important office under
the Constitution- -that of "Chief Justice of
Kentucky" — which should be conferred on the
most distinguished jurist as the prize of merit,
is to be gambled for, aud won by the lucky ad
venturer who happens to draw the shortest
[Straw!

344

TO THE CITIZENS OF FAYETTE COUNTY.

But, to cap the inverted climax of popular
privileges, the Convention, as already suggest
ed, has sealed up its Constitution and marked
it "immirfaWe," except by revolution or a con
vulsive agitation for many years. This re
nounces the Declaration of Independence,
which proclaims that all just Government be
ing raade by and for the people, "they have at
all times au inalienable and indefeasible right
to alter, reform, or abolish their Government,
in such manner as they think proper." And,
though fundamental stability requires some
prudent limitation on the time and manner of
reform, still it should not be more than enough
to insure calm, rational and thorough consid
eration by the constituent body. The existing
constitution is much the strongest in the union
againstthe power of chauge, but its cords are
doubled and twisted by the new. Under the
new Constitution, but few Avould have the pa
tience or thc courage to attempt reform in the
mode prescribed; and, if it should eA'er be at
terapted, there must be an all-absorbing agi
tation for a long period, beyond Avhicli many
could not hope to live.
Such are some of the samples of the eularge-
mont of popular pritileges bythe Convention,
and also of its professed concessions, to the
people of more immediate control over their
Government and ils administration! Do any
or all of the provisions, which have been thus
noticed, increase the rights or the real powers
of thepeople? Do they not, as far as theymay
operate, put handcuffs on the people, and stifle
their free and independent voice? And, with
all this privation, the Convention offers a Con
stitution which must fail lo secure tlie ostensi
ble objects of it — stability — security — -Justice — a
Constitution under which, except as to amend
ment, the ship of State will float, rudderless
and anchorless, on the tide of popular senti
ment, to the imminent hazard of all the pow
erless on board. It contains a few new pro
visions which wc approve. But they are
slight, and most of them might have been ef
fected by legislation. The County Courts
might have been sufficiently re-organized by
act of assembly, and in a manner much better
and cheaper than that fixed by the Conven
tion. Legislative Divorces are constructively
prohibited by the existing Constitution; and
an express inhibition is not, therefore, of any
great advantage. The tenure of office by the
Judges of tha Circuit Courts might be reduced
by legislation, because these are legislative
courts, and therefore may be limited period
ically by legislative acts. And thc provisions
as to duelliBgJ[are|pnconsistent,'and some of
them impracticable; for, while one provision
authorizes the Governor to remit the penalty,
another, nevertheless, requires that the dueU
list, when he takes an official oath, shall
SAvear that he had been guiltless ever since tho
adoption of thc Constitution ! , And this is on
ly one\of theJmany vexatious incongruities
which] characterize the ci'ude heterogeneous
form proposed for our adoption. The truth is
said to be that, althou^ the Convention sat

eighty-three days, it signed its Constitution
in crude scraps without engrossment.
We have no disposition to speak disrespect
fully of the Convention. We regret that, It
chose to re-assemble in June, for a nominal
purpose — we regret that, by its own mandate,
it took from the treasui-y $2,300 for its pay
beyond that fixed by the law under which it as
sembled, or by any other law — we regi'et that it
did not allow more time for sober revision by
the people, and a more suitable occasion for a
full ancl satisfactory decision at the polls by a
majority of the freemen of Kentucky, instead
of a minority that may now happen to decide
the future destiny of us all. And we regret,
more than all, that, after so much agitation,
and so much expenditure of public money, it
did not offer us- a better Constitution — one that
Ave could safely and conscientiously adopt. It
might.-had it been so disposed, have amended
the old Constitution in two weeks, in such a
manner as to have given satisfaction to nine-
teen-twentieths of the freemen of Kentucky.
But many of the merabers of the Convention
were elected under the influence of passions '
unpropitious to the formation of such a Con
stitution as wisdom would approve or patriot
ism would adopt. By their works, however,
they should be ti^ied. Let the tree be judged by
its fruit.
The Constitution proposed is in many of its
features, essentially undemocratic — more so,
altogether than any yet adopted in the United
States. It speaks for the people, but will act
against them; and is, in many important re
spects, very far from such as they desired and
had a right to expect. — Then it may be hoped
that the Democratic party will not vote for it
on any such paltry ground as the fact that a
sinall majority of the Convention claimed to
be of that party. The sacrifice would be loo
great for the empty bubble of a doubtful party
triumph. We hope therefore that allegi
ance to country and duty to posterity will pre
vent the immolation. And, as the new Con
stitution is not at all like that proposed in the
call of a Convention , a decent i espect for com
mon sense and consistency would authorise
the expectiition that most of those even who
united in that call, will vote against the rati
fication of that which may be felt as a fraud
on them as well as on others. We ai'e well
satisfied that many of the original movers
of a Convention and voters for it, will vote
against its Constitution — and araong these is
John L. Helm, the writer of the platform aud
the prime mover aud leading champion of
"reform." And how an old-court Whig can
vote for - that Constitution is a vexatious pro
blem, of which we can neither auticipate nor
attempt a satisfactory solution. We believe
that, if it be adopted, the A^orst constitution
in the Union will be planted on the ruins of
one of the best. And we do apprehend also that
it will not be a Constitution for the unaspiring
quiet people, but a machine for hungry law
yers, office-seekers, and demagogues to play
upon. We feel sure that it would not work as
its disinterested advocates desire and expect.

TO THE eiTKBKS OF FAYETTE COTOTTT.

mi

Kor do we doubt, if adopted, that a majority
of the people will soon became tired of it and
desire a change that will then be almost
hopeless. Let no man vote for it under the delusion
that it closes the door on emancipation. The
Convention, not only left that door as open as
it found it, but has pointed out a way to enter
it if there should ever be a majoritj anxious
to do so. Although all the members of the
Convention seemed to concur ou the subject
of slavery, stiU they discussed that topic
nearly every day during their long session. —
They elaborately discussed also a proposition,
which they ought to have adopted, to pro
hibit gpeciiic taxation, and in full view of the
consequences, and especiaUy as to slavery,
they rejected it. Now, therefore, under their
constitution and without any violation of it,
a bare majority of the voters of Kentucky, de
siring emancipation, may, indirectiy and fi
naUy effect it by accumulating taxes on slave
property — or may consumraate their object of
graduaUy emancipating all post nati on the
condition of paying the assessed value of them;
and by another law for raising, by a tax on
slaves, the amount required to pay that value.
All this would be authorized by the proposed
constitution. Nor should any considerate mau'vote for the
new COnstitiition for any vain purpose of re
pose. He need not fear that a worse will ever
be adopted; and he ought to see that the old
one may be improved much more easily than
the new — and that moreover, as there wUl
now be bo difficulty in understanding what
amendments the people want, there can be no
injurious agitation in the future consideration
a'nd adoption of them, as there certainly will
be, immediately and unceasingly, as to the
new if that be now, adopted as it is.
For the foregoing reasons, and many others
which the occasion will not allow us even to
suggest, Ave are decidedly opposed to the
adoption of the new constitution, and have re
solved to try faithfully to defeat it. But,
whatever it may be, we feel that there is dan
ger of its adoption. As presented by the
convention for trial, it may be adopted by a
minority vote. And thus less than hal^of the
voters of Kentucky raay impose on all of them,
against the will of raost of them, a headlong,
sweeping experiment of Government, which,
all of them united could not change in rea
sonable time without revolution. But there is
danger that even a majority raay vote for it;
because at least 30,000 cherish hopes of get
ting some office under it-— because raany may
erroneously feel that, as they voted- for the
convention, a vote against its constitution,
however bad or unexpected , would be incon-
44

sistent— because a large number of those op
posed to it, apprehending that it wUl prevaU,
may fail to vote— and, because, a still larger
number, anxious to float with the poptdar
current, and thinking, from the great vote
given for a convention, that its work wiU be
approved, wUl, therefore, for self-security or
aggrandizement, enlist under its banner and
shout for its triumph.
But we believe that a decided majority of
the people are, in heart and in head, opposed
to it — and that, by united, firm, and faithful
efforts, it may be rejected. We are resolved,
as far as we can, to make those efforts. If the
new constitution be imposed ou our country,
the reproaches of posterity shall not bum our
skirts. We have done well under the old
constitution. No people have ever done bet
ter. No constitution ever maintained its au
thority more uniformly or supremely. Yet it
might be improved, and we would be pleased
to improve it. But the new constitution wiU be
no iraprovement. It is liable to objections im-
raeasurably greater than any which have been
or can be made to the old one. The issue is,
noti whether we shall take the old or the new:
The question is whether we shall now exchange
the old for the new — whether we will adopt
the new form as our constitution which we
may never be able to alter peacefully, or, by
rejecting it, stand by the old constitution
which, so far as experience may have proved
it defective, may be rauch more easily and
satisfactorily amended, especially after its
long and severe trial which wUl have clearly
developed tho deliberate public judgment as
to all the reforms desired. Shall we now, be
cause we raay see some bleraishes in it, des
pise the legacy of our Fathers ? Shall we,
recklessly and ungratefully throw away the
old constitution, under which we have so long
been happy, prosperous, and secure, and em
bark our property, liberty and religion on an
"experiment" which has failed wherever it
has been tried ? Shall we thus, Esau-like, sell
our birth-right for a mess of potage ? Would
this be wise ? Would it be Kentucky-like ?
Wisdom would hold fast to the good we have
until we are sure of something better. If we
take the new coustitution we raay go so far
doAvn the hill as never to be able to remount
the erainence we now stand on. But if westand
still until the cloud now hovering over us
shall have passed by, we shall, at least, be as
free and safe as always hitherto. And then
we can, calmly and prudently, reform our
constitution whenever Ave desire reform, with
out destroying (as the new form would,) its
power to afford effectual security to all, with
out which there never was, nor ever can be,
such a blessing, araong men, as " Constitu
tional Liberty."

SKETCH OF THE COURT OF APPEALS.
From Collins' History of Kentucky, io which it was contributed ly Mr. Hobertson.

The Constitution of Kentucky — like that of
tho United States, and those, also of all the
States of the Anglo-American Union — dis
tributes, among three departments of organic
sovereignty, all the political powers which it
recognizes and establishes. And to effectuate,
in practice, the theoretic equilibrium and se
curity contemplated by this fundamental par
tition of civil authority, it not only declares
thatthe legislature shall exercise no other pow
er thau that which is legislative — the Judiciary
no other than that which is judicial — ^nor the
Executive any other than such as shall be exec
utive in its nature; but it also, to a conservative
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
rightbut to decide on the constitutional validity
of its OATU acts, or adjudicate on private rights,
no citizen could enjoy political secUrity agamst
the ignorance, the passions or the tyranny of
a dominant party: And if judges were depen
dent for their offices on the Avill of a mere
legislative raajority, their timidity and subser
vience might often add judicial sanction to
unconstitutional enactments, and thereby, in
stead of guarding the constitution as honest
and fearless sentinels, they wonld help the
popular majority to become supreme, and to
rule capriciously, iu defiance of all the funda
mental prohibitions and guaranties of the
people's organic law. As the legislature de
rives its being and authority from the consti
tution, Avhich is necessarily suprerae and in
violable, no legislative act prohibited by any
of its provisions, can be law; and, consequent
ly, as it is the province of the Judiciary to de
clare and administer the laAv in every case, it
must be the duty, as Avell as privilege, of every
court to disregard every legislative violation of
the constitution, as a nullity, and thus maintain
the practical supremacy and inviolabilty of the
fundamental law. But the Avill to do so,
whenever proper, is as necessary as the poAver;
and, therefore, the constitution of Kentucky
provides that the judges of the Court of Ap
peals, and also of inferior courts, shall be en
titled to hold their offices during good be
havior; and, raoreover, provides that no judge
shall be subject to removal otherAvise than by
impeachment, on the trial of which there can
be no conviction without the concurrence of
two-thirds of the Senate — or by the address
of both branches ofthe legislature, two-thirds
of each branch concurring therein.

The first constitution of Kentucky, which
coiuraenced its operation on the 1st of June,
1792, also prohibited the legislature from re
ducing a judge's salary during his continuance
in office. Butthe present constitution, adopt
ed in 1799, contains uo such prohibition. It
is not difficult to perceive which of these
constitutions is most consistent with the avowed
theory of both as to judicial independence;
for, certainly, there can be no sufficient assu
rance of judicial independence, when the sala
ry of every judge depends on the ¦will of a
legislative raajority of the law-making de-
partraent. But to secure a permanent tribunal for ad
judication 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 j'urisdiction. Section
one and two of the 4th article reads as fol
lows: "Sec. 1. The judicial poAver of this com
monAvealth, both as to matters of law and
equity, shall be vested in one Supreme Court,
which shall be styled the Court of Appeals,
and in such inferior courts as the General
Assembly raa,j', from tirae to time, erect and
establish. "Sec. 2. The Court of Appeals, except in
cases OtherAvise proA'ided for in this constitu-
tution, shall have afipellate jurisdiction only,
which shallbe co-extensiye with the state, under
such restrictions and regulations, not repug
nant to this constitution, as may, from time to
time, be prescribed by law."
As* long as these fundamental provisions
shall continue to be authoritative, there must
be in Kentucky a judicial tribunal with appel
late jurisdiction "co-extensive Aviththe State,"
and co-ordinate Avith the legislative and exec
utive departments. And this tribunal being
established by the coustitution, tho legislature
can neither abolish it nor divest it of appellate
jurisdiction. The theoretic co-ordinacy of
the organic representatives of the three func
tions of all political sovereignty, requires that
the judicial org.in, of the last resort, shall be
as permanent and inviolable as the constitu
tiou itself. The great end of the coustitution
of Kentucky, and of every good constitution,
is to prescribe salutary limits to the inherent
poAver of numerical majorities. Were the po
litical omnipotence of every such majority
either reasonable or safe, no constitutional

COURT OF APPBLS.

847

limitations on legislative Avill would be neces
sary or proper. But the whole tenor of the Ken
tucky constitution implies that liberty, justice
and security, (the ends of all just government,)
require many such fundamental restrictions:
And not only to prescribe such as wore
deemed proper, but more especially to secure
their efficacy, was the ultimate object of tho
people in adopting a constitution: And, to as
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 Avhich should be
entitled to hold their offices as long as the tri
bunal itself should exist and they should be
have well and continue competent, iu the judg
ment 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 ap
pellate tribunal, nor the office itself, shall be
subject to legislative abolition.
"There is a radical difference in the stability
of the suprerae and inferior courts. The first
is constitutional — the last are only statutory.
As the constitution itself establishes the Court
of Appeals, this tribunal can be abolished by
a change of the constitution alone. It Avould
be certainly incompatible with the genius of
the constitution to abolish the circuit courts,
merely to get clear of the incumbent judges:
Yet, as the power to abolish exists, the motive
of the abolition cannot judicially affect the
validity of the act. And, as the organization
of inferior courts is deferred, by the constitu
tion, 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 judi
cial independence and rectitude.
The fundamental immutability of the Court
of Appeals, and the value of the durable ten
ure by which the judges hold their offices, have
been impressively illustrated in the history and
results of "the relief system," and resulting
"old and new court," which agitated Kentucky
almost to convulsion for several years — the
most pregnant and memorable in the annals
of the State. That system of legislati've
"relief," as it was miscalled, Avas initiated in
1817-18, by retrospective prolongations of re
plevins of judgments and decrees — and it was
matured, in 1820, by the establishment of the
Bank of the Coraraonwealth, 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

sent to take, at its nominal value, local bank
paper greatiy depreciated. The objecttif the
legislature, in establishing such a bank, and
in enacting such co-operative statutes as those
just alluded to, AVas to enable debtors to pay
their debts in much less than their value, by
virtually compelling creditors to accept much
less, or incur hazards of indefinite and vexa
tious delays.
The constitutionality of the Bank of the
Commonwealth, though generally doubted,
was sustained by raany judicial recognitions by
the Court of Appeals of Kentucky, and finally
by an express decisionin which the then judges
(Robertson, Chief-Justice, and Underwood
and Nicholas, Judges) without expressing their
own opinions, deferred to those incidental re
cognitions by their predecessors, and also to
the opinion of the Suprerae Court of the Uni
ted States, in the case of Craig vs. Missouri,
in which that court defined a "bill of credit,"
prohibited by the national constitution, tobe a
bill issued, as currency, by a State and ou the
credit of the State, the notes of the Bank
ofthe Commonwealth, though issued by and m
the narae of the State of Kentucky, were not
issued on the, credit of the State, but expressly
on the exclusive credit of a nominal capital
dedicated by the charter — and this knoiyn fact
produced the rapid depreciation of those notes;
and, consequently, the sarae Supreme Court
ofthe United States, affirmed the said decision
of the Appellate Court of Kentucky, as it was
compelled to do by its oavu authority, in Craig
vs. Missouri, unless it had overruled sO much
of that decision as declared that it was an in
dispensable characteristic of a prohibited "bill
of credit," that it should be issued on the
credit of the State. There is much reason for
dorubting the correctness of these decisions
by the nationaljudiciary— and, if they be main
tained, there is good cause for apprehendmg
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 retrospect-
lA'cly extending replevins was brought before
the Court of Appeals, the three judges then
constituting that court, (Messrs. Boyle, chief
justice, and Owsley aud Mills, judges,) de
livered separate opinions, all concurring in the
conclusion that those statutes, so far as they
retro-acted on contracts depending for their ef
fect on the law of Kentucky, were inconsistent
with that clause in the federal constitution,
which prohibits the legislatures of the several
states in the union from passing any act "im-,
pairing the obligatiou of contracts," and also,
of course, Avith the simUar 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,
I the personal integrity, firmness and intelligenca

348

SKETCH QP THE

of the judges, and the value of that degree of
judicial independence and stability conterapla
ted by the constitutiou. The question involved
was new and vexed; and a majority of the
people of the State had approved, and Avere,
as they seemed to thmk, vitally interested in
maintaining their coustitutional poAver to enact
such remedial statutes.
Under this accumulated burthen of responsi
bility, however, the court, being ofthe opinion
that the acts impaired the obligation of con
tracts made in Kentucky antedecedently to
their date,, honestly and firmly so decided,
without hesitation or dissent. The court ar
gued, 1st. That every valid contract had two
kinds of obligation — the one moral, the other
legal or civil; -that the fundamental interdicts
applied to the legal obligation only, because,
as moralobUgations are as immutable as the
laws of God, and depend on the consciences
of men, and therefore cannot be impaired by
human legislation or power, consequently, it
would be ridiculously absurd to suppose that
the coustitution intended to interdict that
which, without auy interdiction, could not be
done. 2nd. That as moral obligation results
from the sanctions of natural law, so civil ob
ligation arises from the sanctions of human law;
that, wherever the laws of society Avill not up
hold nor enforce a contract, that contract pos
sesses no civil obligation, which, whether moral
or civil, is the chain, tie , or ligature Avhich binds,
coerces, persuades, or obliges the obligor; that
all civil obligation, therefore, springs from and
is regulated by the pumtory or remedial poAver
of huraau law; that the destruction or Avith-
drawal of all such poAver, must annihilate all
merely civil obligation; that, consequently,
that which irapairs such power raust, to the
sarae extent, impair such obligatiou; and, that,
Avhatever renders the remedial agency of the
law less certam, effectual, or valuable, impairs
it; and, also, necessarily impairs, therefore,
the obligation which it creates. 3d. That
the civil obligation of a contract depends on
the law of the place when and where it is
made; and that any subsequent legislation that
essentially impairs the legal remedy for main
taining or enforcing that contract, raust con
sequently, so far, impair its legal obligation.
4th. That, if a retro-active extension of re
plevin from three months to tyvo years would
not impair the obligation of a contract made
under the shorter replevin law, the like pro
longation to one hundred years Avould not im
pair the obligation; and, if this would not, the
abrogation of all legal remedy could not. 5th.
That it is impossible that legislation can de-
sti'oy or impair the legal obligation of contracts,
otherwise than by operating on thO legal rem
edies for enforcing them; and, that consequent
ly, any legislation retro-actively and essen
tially deterioraimg legal remedy, as certainly
and esseutially impairs the legal obligation of
all contracts on which it so retro-acts: And,
finally, therefore, that th« retrospectiva ex

tension of replevin in Kentucky, was uncon
stitutional and void.
Unanswerable and conclusive as this mere
skeleton of the court's argument may be, yet
the decision excited a great outcry agaiust the
judges. Their authority to disregard a legis
lative act as tmconstitutional was, by many,
denied, and they Avere denounced as "usurpers
— tyrants — kings." At the succeeding session
of the legislature, in the fall of ] 823, a long,
verbose, and erapty preamble and resolutions,
for addressing them out of office, Avere repor
ted by John RoAvan, to which the judges re
sponded fully and most effectually. But after
an able and boisterous debate, the preamble
and resolutions were adopted by a majority of
less than tAvo-thirds. The judges — deter-
ramed to stand or fall by the constitution — re
fused to abdicate. At the next session of the
legislature, iu 1 824, there then being a still
larger majority against the judges and their
decision — but not quite two-thirds — the domi
nant party, now become furious and reckless,
passed an act, mis- entitied "an act to reorgamze
the Court of Appeals;" the object and effect
of which, if sustained, yyere to abolish the "old"
constitutional "court," and substitute a "new"
legislative "court."
The "ueAv court" (consisting of William T.
Barry, chief-justice, and' James Haggin, John
Trimble, aud RezinH. Davidge, judges,) took
unauthorzied possession of the papers aud re
cords in the. office of the Court of Appeals,
appointed Francis P. Blair clerk, and attempt
ed to do busuiess and decide some causes,
their opinions on which, were published by
Thomas B. Monroe, in a small duo-decimo
volume, which has never been regarded or
read as authority. Thejudges of the constitu
tional Court of Appeals were thus deprived,
without their consent, of the means of dis
charging official duties properly; and, the peo
ple not knowing whether the "old" or the
"new court" Avas the constitutional tribunal
of revision, some appealed to one, and some
to the other. In this perplexing crisis of ju
dicial anarchy, the only authoritative arbiter
was the ultimate sovereign — the freeraen of
the State at the polls. To that final and only
tribunal, therefore, both parties appealed;
and no period, in the history of Kentucky, was
ever more pregnant, or marked with more ex
citement or able and pervading discussion,
than that which immediately preceded the an
nual elections in the year 1825. The porten
tous agony resulted in the election, to the
House of Representatives, of a decisive ma
jority in faA'or of the "old court," and against
the constitutionality of the "new court." Bnt
only one-third of the senators having passed
the ordeal of that election, a small "new court"
niajority still remained in the Senate; and,
disregarding the submission of the question to
the votes of the people, that little majority
refused to repeal the "reorganizing act," or
ttcknowledg* the exist«nc« ofthe "old court."

COURT OF APPEALS.

849

This unexpected and perilous contumacy,
brought the antagonistic parties to the brink
of a bloody revolution. For months tho Oora-
mouAvealth was trembling On the crater of a
heaving volcano. Butthe considerate prudence
of the "old court party" prevented an erup
tion, by forbearing to resort to force to restore
to the "old court," its papers and records,
which the minority guarded, in Blair's custody,
by military means — and, also, by appealing,
once more, to the constituent body, in a printed
manifesto prepared by George Robertson,
signed by the members constituting the ma
jority of the popular branch of the legislature,
and, exposing the incidents of the controversy
and .the conduct of the defeated party. Thc
result of this last appeal was a majority in the
Senate, and an augmented majority in the
House of Represetativi • iu favor of repealing
as unconstitutional, the "act to reorganize the
Court of Appeals." That act was according
ly repealed in the session of 1826-7, by "an
act to remove the unconstitutional obstructions
which have been throAvn in the way of the
Court of Appeals," passed by both houses the
30th December, 1826 — the Governor's objec
tions notwithstanding. The "new court" van
ished, and the "old court," redeemed and re
instated, proceeded, without further question
or obstruction, in the discharge of its accus
tomed duties.
As soon as a quietus had been given to this
agitating controversy, John Boyle, Avho 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 ofthe "relief"
and "new court" parties was, by a relief gov
ernor, 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. Under
wood (both "anti-relief" and "old court")
were appointed to succeed them. Then Bibb
forthwith resigned, and there being no chief-
justice until near the close Of 1829, these two
judges constituted the court, and, during that
year, declared null aud void all the acts and
" decisions of the "new court," and disposed of
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 im
portant question that could engage the coun
cils or agitate the passions of a state, was set-
tied finally, and settled right.
Thia memorable contest between the con
stitution and the passions of a popular ma
jority—between the judicial and the legislative
dspartmenti— proves the efficacy of Kentucky's
eonstitutional structure, and illustrates the
t«a«on and tha importano* of that system of

judicial indepondeucc which it guaranties. It
demonstrates that, if the appellate judges had
been dependent on a bare majority of tho
people or their reprcsoutatives, the constitution
would have been. paralyzed, justice dethroned,
aud property subjected to rapine, by tumultu
ous passions aud numerical poAver. And its
incidents and results not only commend to the
gratitude of the living and unborn, the pro
scribed judges and the efficient compatriots
who dedicated their tirae and talents for years
to the rescue of the constitution, but also, ira-
pressively illustrate the object aud efficacy of
the fuudanieutal limitations on the will of tho
majority — that is, the ultimate prevalence of
reason over passion — of truth over error —
which, in popular governments, is the sure
offspring only of time and sober deliberation,
which it is the object of constitutional checks
to ensure.
As first and uoav organized, the Court of
Appeals consisted of three judges, one Of
whom is coraraissioned the "Chief Justice of
Kentucky." In the year 1801, the number was
increased to four, and Thoraas Todd (Avho had
been clerk of that court, and in the year 1807
was appointed a judge of the Supreme Court
of the United States) Avas the first who was
fourth judge. In the year 1813, the number
was prospectively reduced to three; and, all
the incurabents 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, Avas after
Avards also re-commissioned; aud ever since
that time, the court has consisted of three
judges only.
All the judges have received equal salaries.
At first the salary of each judge was $666,66.
In the year 1806, itwas raised to $1000; inthe
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 ofthe Bank
of the Commonwealth, the salaries were paid
in that currency. Which Avas so much depre
ciated, as, for sorae time, to reduce the value of
each salary to, about 750.
Tho foUoAving is a chronological catalogue
of the names of all who have been judges of
the Appellate Court of Kentucky:
CHIEP JUTICCES.
commissioned Juno 18, 1792.

Harry Innis,
George Muter,
Thoraas Todd,
Felix Grundy,
Ninian Edwards.
Geo. M. Bibb,
John Boyle,
Geo. M. Bibb,*
Geo. Robertson,
E. M. Ewmg,
Thos. A. Marshall, '

Dec. 7, 1792.
Dec. 13, 1806.
April 11, 1807.
Jan. 5, 1808.
May 30, 1809.
M'chSO, 1810.
Jan. 5, 1837.
Dec. 16, 1829.
April 7, 1843.
June 1, 1847.

"Besignvd Dee. S8, 182S.

350

SKETCH OF THB

JUDGES.
Benj. Sebastian, commissioned June 28, 1792.
Caleb Wallace, " June 28, 1792.
Thomas Todd, " Dec. 19, 1801.
Felix Grundy, ' " Dec. 10,1806.
Ninian Edwards, " Deo. 18, 1806.
Robert Trimble, " April 13, 1807.
William Logan,' " Jan. 11,1808.
Geo. M. Bibb, " Jan. 31, 1808.
John Boyle, " April 1, 1809.
WiUiam Logan, ' " Jan. 20, 1810.
James Clark, " March 29, 1810.
William Owsley, " April 8,1810.
John Rowan, " Jan. 14,1819.
Benjamin Mills, " Peb. 16, 1820.
Geo. Robertson, " Dec. 24, 1828.
Jos. R. Underwood, " Dec. 24, 1828.
Richard A Buckner, " Dec. • 21, 1829.
Samuel S. Nicholas, " Dec. 23, 1831.
Ephriam M. Ewing, " March 5,1835.'
Thos. A. Marshall, " March 18, 1835.
Daniel Breck, " April 7, 1843.
James Simpson, " June 7, 1847.
*Resigned January SO, 1808.
Of the chief-justices. Muter, Boyle, and
Robertson were iu 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
ley held their stations longest.
In the year 1803, Muter, very poor and
rather superannuated, was induced to resign by
the promise of an annuity of $300, which,
being guarantied by au act of the legislature iu
good faith, was, complained of as an odious
aud uncoustitutional "provision," aud AA'as
taken away by a repealing act of the next
year. Under the first constitution of 1792, the ap
pellate judges were required to state in their
opinions such facts and authorities aj should
be necessary to expose the principle of each
decision. But no mode of reporting the de
cision was provided by legislative cuactraent
until 1815, Avhen the governor was authorized
to appoint a reporter. Previously to thattime,
James Hughes, an eminent "land lawyer,"
had, at his own expense, published a volume
ofthe decisions ofthe old District Court of Ken
tucky, rendered in suits for land — commencing
iu 1785 and ending in 1801; Achilles Sneed,
clerk ofthe Court of Appeals, had, in 1805, un
der the authority of that court, published a small
volume of miscellaneous opinions, copied from
the court's order book; and Martin D. Hardin,
a distinguished laAvyer, had, in 1810, published
a volume of the decisions from 1805 to 1808,
at the instance of the court in execution of a leg
islative iUjunctionof 1807, requiring the judges
to select a reporter. Geo. M. Bibb Avas the first
reporter appointed by the Governor. His re
ports, in four volumes, include opinions from
1808 to 1817. Alexander K. Marshall, Wm.
Littell, Thomas B. Monroe, John J. Marshall,
James G. Dana, and Benj. Monroe were, suc
cessively, appointed, and reported afterwards.

The reports of the first, are in three volumes
—of the second, in six— of the third, in seven
— of the fourth, in seven — of the fifth, in nine
— and the last, who is yet-the reporter, has
published seven volumes. Consequently,
there are now forty-six volumes of the repor
ted decisions of thc COurt of Appeals of Ken
tucky. Of these reports, Hardin's, Bibb's,
and Dana's are most accurate — Littell's
Thomas B. Monroe's and Ben. Monroe's next.
Those of both the Marshall's are signally in
correct and deficient in execution. Dana's
in execution and in the character of the cases,
are generally deemed the best. Of the de
cisions in Dana, it has been reported of Judge
Story that he said they were the best in the
Union — and of Chancellor Kent, that he knew
no state decisions superior to them. And that
eminent jurist, in the last edition of his Com
mentaries, has made frequent reference to
opinions of chief-justice Robertson, and has
commended them in flattering terms. .
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 ofappeals or Avrits
of error, "in cases iu which the inferior courts
have jurisdiction." A ¦writ of error may be
issued to reverse a judgment or decree for
one cent; but, by an act of 1796, no appeal
can be prosecuted to reverse a judgment or
decree, unless it relate to a franchise or free
hold, or (if it do not) unless the araonnt of it,
"exclusive of costs," be at leat $100. But in
cases of decretal divorces, and m fines for riots
and routs, the legislature has denied to the
court auy revising jurisdiction. Still, although
it has no original jurisdiction excepting only
in the trial of Clerks, and although it has no
criminal jurisdiction in any case of felony, the
average nuraber of its annual decisions has, for
many years, been about five hundred. The
court is required to hold two terras in each
year — one coramencing the first Monday in
May, the other the first Monday in September;
and no terra is allowed to be less than forty-
eight juridical days. By a rule of court, any
party raay appear either by himself or his
counsel, and in person or by brief And a
majority of the cases are decided Avithout oral
argument. A statute of 1816 enacted, that "all reports
of cases decided in England since tbe 4th of
July, 1776, should not be read in court or cited
by the court." The object of this strange en
actment Avas to interdict the use ofany British
decision since the declaration of American In
dependence. The statute, however, literally
imports, not that no such decision shall be
read, but that "all" shall not be. And this
self-destructive phraseology harmonises with
the purpose of the act — that is, to smother thfe
light of science and stop the growth of juris
prudence. But for many years, flie Court of
Appeals inflexibly enforced the statute — not in
its lettor, but in its aim. In the reports, how-

COtrnt 0¥ APPSAiS.

351

ever, of J. J. Marshall, and Dana, and Ben.
Monroe, copious references are made (without
regard to this interdict) to post-revolutionary
cases and treatises in England, and now that
statute may be considered dead.
The Appellate court of Kentucky has gen
erally been able, and always firm, ptire, and
faithful. It has been illustrated by some
names that would adorn any bench ofjustice or
age of jurisprudence. And it mighthave been

oftener filled by such jurists, had not a suicidal
parsimony withheld from the judges an ade
quate compensation for the talents, learning,
labor and responiibility which the best in
terests of the commonwealth demand for the
judicial service, in a court appointed to guard
1 the rights and the liberties of the people, and
to settle conclusively the laws of the common
wealth.

ADDRESS

Address delivered by Mr. Robertson in the Chapel
of Morrison College, on the 22nd of February,
I852,aJ the request of the pupils of the Law
Department of Transylvania University.
Kentucky could not, this day, perform a
service more grateful or raoro useful than to
comraeraorate, in a becoming raanner, the
double anmversary of the birth of the noblest
of illustrious Araericans, and of a battle which
shed a bright halo of glory around the colurau
of her own fame. The advent on earth of that
wonderful mau raay be as eventful to the
teraporal, as that of the crucified Messiah will
be to the eternal welfare of raankind. And,
m the magic fight of Buenna "Vista, Kentuck
ians stood, Kentuckian-like, side by side Avith
gallant sons of other States, and, as a forlorn
hope, against mighty odds, gloriously tri
umphed ou that bloody and hard-fought field.
We should honor the survivors of that devo
ted band and never cease to cherish the raem-
ories of those who, sealing with their blood
their oavu and their country's glory, fell, to
rise no raore until the judgment day.
But the times make it more appropriate to
this occasion to consider the life of the bene
factor born than the history of that great Aictory
won. A good man lives, not for the present chiefly,
but for the future — not for hiraself only, but
also for his couutry aud his race. Such a
man, pre-eminently, Avas Geoege Washing-
TON. His Avas a model, life. Pull-orbed and
spotless, its light may be as beniflcent to the
moral, as that of a cloudless sun is to the
physical world. It was his lot to be born, to
live, aud to die in a country and at a time
signally interesting and eventful to mankind
— -a country which seems to have been re
served by Proirideuce 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 ucat. 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 huraan-
heart as long as it shall beat Ayith a Airtuous
or grateful emotion. Washington dead is, to
the present aud the future, Avorth even more
than Washington living. Though one hun
dred and tAventy years have elapsed from his
birth and more than half a century from his
death, his virtues are more fragrant and his
name more halloived now, than when ho left

the troubled scenes of earth. Such, always, is
the slow-ripening fruit of rare merit — the pos
thumous destiny of God-like deeds.
Unheeded while he lived, Socrates, was
doomed to the hemlock for teaching the enno
bling doctrmes of God's unity, and man's im
mortality, in defiance of the polytheism and
camality of au idolatrous generation. Galli-
leo was a raartyr to his premature intimation of
the fact, then deemed by the Hierarchy contra
ry to the Bible, that theearth revolves around
the sun. Copernicus was dead long before his
theory of the solar system was acknowledged.
Bacon tasted none of the fruits of his novum
organum, and died in disgrace before his in
ductive philosophy obtained useful circulation.
ColumbuS'fell a victira of persecution without
even the consolation of a prophetic glirapse of
the glorious destiny of the Araerican world or of
his own deathless renown as its discoverer and
the first Pioneer ofits civilization. And Wash-
ngton, too — though raore fortunate in his life,
and more honored at his death — had, while he
lived, to encounter, like all human benefactors,
envy, calumny, and blind party spirit; and took
leaA'c of his country, unconscious that, iu less
than half a century, it ATOuld be the most happy
and hopeful under the sky, or that his own
statue, would be the central figure in the pan
theon of men. But, though the declining sun
of his earthly pilgrimage was partially ob
scured by envious clouds, the serener star
of his fame, rising higher and higher,
and groAving in its accent larger aud more
effulgent, has uoav reached its meridian
and bearas with a matchless ray in the centre
of a constellation that will never fade aAvay.
The light that pours from that refulgent orb
— unlike the lurid glare of Mars, or the meteor
blaze of the victorious chieftain, or the decep
tive phosphorescence of the demagogue — is
chaste and parental like that of vestal fire
gleaming on the -altar of virgin purity; and
Avill ever safely guide the virtuous citizen and
statesman in the pathway of private, as Avell
as of public life. This distinguished destiny
Avas the offspring — not of furtime, nor of war,
nor of Avhat raeu call genius, but of right prin
ciples 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 Avas modest, self-
denying and upright — as a citizen, he was
just, prudent, and patriotic — as a commander of
armies, he was cautious, skilful, and firm — as

ADDRESS ON THB 22nd FEBRUARY, 1852.

353

a civil magistrate, he was wise, conscientious
and self-sacrificing- exhibiting in all his life,
public aud private, in peace aud in war, in
Church and in State, virtues and graces rarely,
if ever, combined in any other human charac
ter, and worthy of imitation by all men in all
conditions and in alltiraes. He seeras to have
been bom for his country, and his age; and the
country and the age seem to have been pre
pared by Provid ence for just such a mau. With
out his aid our cotmtry's independence might
not have been achieved or blessed — Avithout his
counsels the- Constitution ofthe United States
might hot, and probably would not, have been
adopted — and without his gurdiau care and
the magic influence of his narae that hopeful
offspring of "the times that tried men's souls,"
might and almost certainly would, have been
strangled in the cradle of its existence.
His administration of the Executive Depart,
ment during the first eight years after the in
auguration of the General Government was an
admirable illustration of the beau-ideal of a
constitutional President. He caref uUy studied
his duty and sincei ely endeavored to discharge
it for the public good alone. No personal or
party consideration controlled his official con
duct. In appointing to important office he
consulted superior fitness only — detur digniori,
was his maxim ; and disregarding the importu
nities of vulgar suppliants for place, and giv
ing but little heed to subscription papers or
other procured documents of recommendation,
he always selected those he deemed best qual
ified for the stations to which he called them.
He considered his patronage as a sacred trust
confided to him, and to be exercised by him,
not for his oavu gratification, but for his coun-
tty's welfare; and he never presumed to per
vert it frora its constitutional design or stooped
to prostitute it to any selfish purpose or am
bitions aim. By his stoical firmness and cora-
prehensive patriotisra he illustrated the true
principles of the National Constitutiou, nour
ished and saved it in its perilous youth, raised
it to robust, manhood, and, by his non-inter
vention heroism in 1793, rescued his country
from the vortex of the French Revolution, and
set his seal to the only safe intei-national
policy of Republics.
But, though, in his moral aud intellectual
character, he combined the cardinal elements
of a good and great raan — though his life hap
pily exemplified the personal and civic virtues
crowned with the graces of a pure religion —
though, as coraraander-in-chief of our Revolu
tionary Army, his Fabian prudence and extraor
dinary self devotion earned for him a diadem of
honor eclipsing any that ever sparkled on the
head of an Alexander or aNapoleon, and though
the unanimous voice of his countrymen spon
taneously called him to the first of civil sta
tions — yet all these titles to grateful remera-
brance, rare and distinguished as they were.

would not consecrate, as it is consecrated, his
birth-day to religious observance and patriotic Iraon council was merely advisory.
45

commemoration. It was his presiding influence
in laying the foundations of our Union; his agen
cy in consohdating its peeriess superstructure
--aud, above all, tho wisdom aud benevolence
of his Farewell Address, which have contrib
uted most to chrystalize his fame and to en
twine around it an amaranthine wreath of
chaste and sun-light glory.
To contemplate such a character and review
the life of such a man must be cheering and
eminently useful. For that patriotic purpose
chiefly, Ave have all come here to-day. We
have not come to indulge in idle praises ofthe
Father of his Country; his memory needs not
our eulogy. Our purpose is nobler and more
substantial far; it is to leam his principles and
pledge our allegiance to thera — to recite his
counsels and resolve to follow thera. And if ev
ery citizen of the United States would do this
iu the proper spirit aud faithfully profit by it
as he ought, this Union would be impregnable
— Justice would be sure — Liberty Avould be
safe — Virtue would be encouraged — Talents
would be rewarded — our Country would be
peaceful, happy, and truly great — and our in
stitutions Avould soon be rightly understood
and coraraended to all civilized nations.
At a crisis so pregnant and novel as the
present, the occasion of our assembling could
uotbe more appropriately or usefully improved
than by considering our organic institutions,
aud the precepts of him who was their chief
architect. But time Avill circumscribe our
present contemplations to a very general no
tice of the Constitution of the United States
as it came frora the hands, and was illustrated
by the admininistration and the fareAvell ad
dress of Washington.
Thepeople of the thirteen North Araerican
Colonies, long trained to actual freedora aud
social equality, felt it to be their duty to resist
the pretension of England to govern them "in
all cases whatsoever," Avithout allowing them
the benefit of representation in the British
Parliaraent; and, for concerting united oppo
sition, they constituted the first "Continental
Congress," ivhich met in Philadelphia, Sept.
5th, 1774, Avith unlimited discretion to take
care of "tho coraraon Avelfare;" and the con
stituent political bodies then, for the first time,
assuraed thc title of "the United States."
Thatiuitial union, Avithout any formal compact,
Avas not only voluntary as to its power aud du
ration, but purely federal. During the revo
lutionary Avar, which soon succeeded, "articles
of confederation" Avere adopted by the States,
each for itself, in its political capacity, aud
each, by express stipulation, retaining absolute
sovereignty. That league of independent
sovereigns, with no common umpire and with
out any other Government thau the separate
Governments of the States, each acting for
itself alone, left the Union dependent on the
Avill of each local sovereignty Avithout any in
herent poAver or principle of life. The com-
Its sphere

354

ADDRESS ON THE 22nd FEBRUARY, 1858.

of authority was quite cirumscribed, and con
fined to what was "expressly delegated." It
had no power to uphold eveu that. Its acts
were addressed to States, and in no sense to
persons; and Avere, of course, not laws, but
recommendations merely, Avliich might be ob
served or disregarded at the pleasure of all or
any of the confederate States. That con
federation had not one element or faculty
of a common Government — to the existence
of which the right to enact laws foi the whole
people and the self-sustaining power to en
force thera against every citizen, are indispen
sable. Wise and conservative raen soon saw that
the raaintenance of Union and of the liberties
which could not be assured without , it would
require a radical re-organization — substituting
a union of the people for that of States — a
Governraent for a league — a National Govern
ment for a confederate corapact between inde
pendent sovereignties uncontrollable by any
political power above thera. 'Washington
urged the absolute necessity of sorae such
change m the principle of the Union, and
many of his corapatriots concurred with hira.
As early as 1781, Pelatiah Webster, in an
able pamphlet, demonstrated the insufficiency
of the articles of confederation, and suggested
a Continental Convention for improving the
instrument of Union. In 1782, Alexander
Hamilton urged the same tfhing, with objects
ratherraore explicit. In 1784, Noah Webster,
in one of his miscellaneous publications, pro
posed the adoption of "a new systera of, gov-
enraent, which should act, not on the States,
but directly on individuals, and vest in Con
gress full power to carry its laws into effect."
So far as we know, this was the first proposi
tion for a supreme national governraent — a
constitution of national sovereignty instead of
a league among sovereigns. But often after
wards raany illustrious citizens urged the same
thing. In April 1787, James Madison, in a
letter to Edmond Randolph said: "I hold it for
a fundamental point that au individual inde
pendence ofthe States is utterly irreconcilable
with the idea of an aggregate sovereignty. I
think, at the same tirae, that a consolidation
ofthe States into one siraple republic is not
less attainable than it wonld be inexpedient.
Let it be tried then whether any middle ground
cau be taken which will at once support a due
supreraacy of the national authority, and leave
in force the local authorities, so far as they can
be subordinately useful. Let the National Gov
ernraent be arraed with positive and coraplete
authority in all cases where uuiforra racasures
are necessary, as in trade, &c., &c." This
was, probably, the first recorded proposal of a
Constitution of a General Govemment, na
tional and supreme as to all national interests,
and federal also with local supremacy in the
States to the extent of concerns exclusively
affecting each iState seperately aiid alone.

That the constitution, as'adopted, establish
ed a General Government, supreme in its au
thority and national in its operation on the
people of the United States, may be demon
strated by a consideration of the avowed ob
jects of its adoption, of the history of its
ratification in each State, of its provisions,
and of its practical operation ever since it
was announced as "the supreme law of the
land." Such a Government could not be
established without delegating to it portions
of the independent sovereignty of the States
as previously confederated. The people of
the States alone had the authority to make
that transfer, and thus modify and subordinate
their State sovereignty. And they did it —
those of each State for theraselves— just as
they established their local Govemment. The
people of every State in the Union are indi
vidually parties to the constitution. It binds
each and all— is addressed to each and all—
and is a law over each and all of them. The
proraiiient objection urged iu each State Con
vention against the adoption of it was'that it
constructed a National Government which
would operate supreraely over every person
within the limits of the Union, " any thing
in any State Constitution to the contrary not
withstanding." And that objection was met,
not by a denial of the aUegation, but by ar-
gunients to prove that such a Government was
indispensably necessary for the Union of the
States, the security of the people, and the
maintenance of national honor abroad and of
peace and justice at home.
A political constitution is organic law. The
chief difference between a huraan and poli
tical constitution is, that the first 'organizes
and_ constitutes animal life, and the last or
ganizes and constitutes political sovereignty.
Each therefore, is for the sarae reason caUed
a constitution, and is necessaiily supreme
fundamental and inviolable. Such conse
quently must be the true character of the "con
stitution" of the United States— so labelled
on Its front. It .also constructs a complete
machinery of National Government and elab
orately organizes National power. It was in
tended, therefore, to be law, fundamental and
paramount: and to remove all doubt, the peo
ple, when they adopted it, stereotyped on its
face that it "shall be the supreme law of flie
land. As such a law it has always operated
since the first inauguration of Washington;
aud as such a law it will continue to operate
as long as the Union shaU last or flie princi
ples of Washington shall be generallv re
spected. ¦'
The people, in adopting it, expressly sur
rendered many of the highest attributes of
»i,ate sovereignty— such as the power to coin
money, declare war, regulate commerce, estab
lish post offices, impair the obligation of con
tracts, pass ex post facto acts, emit bills of
credit, &e. ; and delegated the most useful of
these and other powers to the general Govern
ment. The Union could not be preserved with-
outa national government vested with supreme

ADDRESS ON THE 22nd FEBRUARY, 1853.

355

powers co-extensive with all the interests and
objects common to the people of the United
States as one presiding nation, for all interna
tional purposes abroad, and for such at horae
as concern domestic peace, harmony and jus
tice: — as to all those ends, allthe people of all
the States are but one and the same family —
all should be represented, and the voice of a
majority, consistent with the charter of asso
ciation, should prevail over that of a minority
— the interest of the whole must be preferred
to that of a fraction — the whole must govern
each and every part.
. No other theory can be consistent with the
Declaration of Independence, the representa
tive principle, or the self-preserving power of
the Union. No State, which does not desire to
destroy the Union, should arrogate or wish to
exercise exclusive power over the rights or in
terests of the people of other States^ — common
interests should oe regulated and controlled
by common councils — and all such interests
as belong to tha people of a single State
should be regulated by that State alone.
Such was the purpose and such is the true
theory of the constitution. It delegates all
national power to the General Government,
and leaves all local power with the individ
ual States — which, for natiopal ends, consti
tute but one nation, and, for local purposes;
a confedration of States. The powers grant
ed to the common government are necessarily
supreme and plenary, except so far as express
ly limited by the constitution. This may be
illustrated by the power to regulate foreign
commerce. The States transferred to the
General Govemment all their pre-existent
power over that entire subject: and auy at
tempt made by a State to interfere with it, in
any way, would be an act of usurpation and
consequently ¦void. Congress raust therefore
have as much power over extern al commerce
as each of the States had when politically in
dependent, except so far the constitution re
quires uniformity of regulation. Each Inde
pendent State, before the adoptiou of the con
stitution, had as much authority over its for
eign comraerce as any sovereign nation on
earth could possess. Every independent sov
ereignty may regulate its comraerce according
to its own will, and so as to protect its oavu
capital, encourage its own products, foster its
own industry, and promote its own manufac
tures. This universal, conservative, and neces
sary power must, beyond doubt or question,
have been delegated to the General Govern
ment by the people of the States, who severally
possessed it until they surrendered it by adopt
ing the National Constitution, and retained to
themselves no portion of it. This, too, is
Washingtonian doctrine. One of the first
acts of Congress to which he affixed his approA^-
ing signature / recognised, on its face, this
principle of protection. And if this be not
constitutional, then, bv adopting the constitu
tion of the Union, the people annihilated the
power to protect themselves against the selfish
poUcy and legislation of foreign goyernments.
But no sane man can read the constitution dis.

passionately aud deny that this vital power
still exists among us as elsewhere, and that it
belongs to our General Government, to which
it has been confided by the people as a great
trust for their own common welfare.
The powers expressly granted by the con
stitution carry with them all appropriate
means for effecting their ends — excepting only
so far as the constitution prescribes limitations
on the means which might be employed.
When not so limited any mean is constitu
tional which relates to the end of au express
power, and will tend to effectuate it. When
the people granted to the General Govemment
an express power, they, by necessary implica
tion, granted the right to eraploy any raeans
for fulfilling the end of that power which the
charter itself does not withhold, aud which
they themselves raight have eraployed for the
same purpose had they not entrusted the
power to other hands. Every raean adapted to
the end of an express power is therefore con
stitutional, unless it be prohibited by the con
stitution, or be inconsistent with its genius or
design. Any one of raany various means
raay tend to the effectuation of an express
power — which of thera shall be applied is a
question of policy, not of power. Policy
changes with the times, but, as long as the
constitution shall continue unaltered, every
power which ever existed under it must con
tinue to exist. And, of the varioUs means re
lating to the end of an express power, no one
can be unconstitutiodal merely because an
other may be considered more expedient — for
then power would depend on policy, and would
be equally fluctuating and always questionable,
instead of being, as it must be, fixed a.id uni
form — and then, too, there Avould be no implied
power to do auy thing except that which is most
expedient; and moreover, that might be cousti-
tutional one day which was uucon stitutional '
the day before, or might be so the day after. If
the charter of the first National Bank approv
ed by Washington, was constitutional, the se
cond signed by Madison, was not unconstitu
tional — nor, if the first was unconstitutional,
could the last be eonstitutional, even though
the times might have made it more useful aud
expedient than the first. The only test of the
validity of either of them was whether, as a
fiscal agent, it operated as a raeans for effecting
the ends of the express powers over the cur
rency, or over the safe keeping and transmis
sion of the public monies. If it did so.ope-
rate, it was constitutional, even though some
more popular raeans to the same ends might
have been selected — and if it did not so ope
rate, it was unconstitutional, however accept
able or beneficial it may have been. Whether
it was, altogether, the best mean, might have
been doubted— but whether it was a mean
adapted lo any of the ends of express powers,
none could consistentiy deny; and, therefore,
if there was no implied power to organise and
establish it, the same process of construction
which would lead to that conclusion, must in
evitably result in the denial of all implied
, powers. So Washington thoughtr-and so'

356

ADDRESS ON THE 22nd FEBRUARY, 1852.

thought also the most of those who made the
constitution of the United States.
Whatever the General Government has the
right to do, it raust have the power to do; and
whatever it has the power to ordain, it must
have the raeans of raaking effectual. And
unless it have the ultimate authority to decide
on its OAVU power, it is not a Government, but
a mere confederation. Without that power,
there is no sovereign power. That power does
exist somewhere in this Union. It cannot be
long to the separate States consistently with
the ends or the provisions of the constitu
tion. In a contest between the whole and any
of its parts, the latter raust yield to the form
er, which ceases, to be a government when
ever it surrenders its power to govern in the
last resort. WhUe, therefore, the States have
reserved all local sovereignty, the General
Government must have the right to decide as
to its own powers in every collision between
it and any State of the Union. Apprehend
ing collisions between the general and local
governments as to their respective powers, and
wisely foreseeing that that ofthe Union should
in all such cases, control, the people virtually
so declared, and carefully provided a tribunal
— representing all and responsible to all for
final and peaceful decision, and explicitly gave
to that august national forum appellate ju
risdiction over every judicial controversy in
in which the Federal Constitution shall ever
be involved. The greSt object of that wise
precaution was to uphold the Union, maintain
the uniformity and supreraacy of its charter,
and rebuke and prevent nuUification by State
Courts, State Legislatures, or State Canven-
tions. The charter of our Union also proscribes, as
unconstitutiDual and revolutionaiy, the ueAv-
born heresy of "secession." The Union can
be constitutionally dissolved, altered, or
maimed only in the mode prescribed in its
charter. The citizens of the States, being all
parties to it, and having declared in it that it
shall be the supreme laAv for each aud all —
every citizen owes to it, and to all its constitu
ted authorities, a paramount allegiance — and
no one citizen, nor any association of citizens
of one or of more States, can remain Avithin
the chartered limits of the Union without
being subject, at all times aud under all circiim-
stances, to its suprerae authority as long as
the charter shall remain unchanged. If nulli
fication or secession shall ever succeed, the
General Government aa'IU, so far, if not alto
gether, be upset — an act of revolution destruct
ive of the vitality of the Uniou, which is not
merely a mechanical comhiuation of independ
ent parts, but is rather a chemical and vital
cohesion of homogeneous elements of one en
tire political body, with different organs and
distinct members, all co-operating for the
preservation of the whole — which is equally
necessary for the health of each constituent
part.

This fundamental tmth i« beautifully sym
bolised by the motto home aloft by the
American Eagle on the star-spangled banner
of the Union— ".B Pluribus Unum" — one gov
ernment out of many, one head over all. And
the importance of maintaining the Union and
all its essential rights and powers is forcibly
expressed by the national motto of Kentucky's
escutcheon — "United Ave stand — divided Ave
faU." This was the organic principle of the Con
stitution framed by the Federal Convention of
1787, over which 'Washington presided.
No rational mau can, consistently, deny that
the Constitution of the United States is a fun
damental and supreme ?ai« organizing allthe
people who are parties to it into one independ
ent nation, possessing but one national mind,
and vested with paramount authority over all
concerns involving the integrity, of the Union
established by it, or in which the citizens of
more Slates than one may have a common in
terest. Nor cau there be a rational doubt
that the Govemment constituted by it, like
every other independent sovereignty, has
the political power to uphold and enforce it
according to the national will expressed by its
organs as constituted for that purpose.
But this, as well as any other Government,
raay sometimes err and go beyond the sphere
prescribed by its charter — and then its uncon
stitutional acts are void. But the guaranties
against any such aberration are even stronger
and more assuring than those of any State in
the Uniou against usurpation by any of its
local authorities; and the constitutional reme
dies for relief are precisely the sarae as those
provided as the only legal ones in every well
organized Governraent.
Whenever the constitutionality of a legisla
tive act of a State is questioned, every citi
zen has a political right to oppose it on his
civil responsibilities to the official judgraent of
the constitutional majority expressed as pro
vided by all the people of the State in their
organic law; but, whenever that judgment
shall have been authoritatively pronounced,
resistance is uo longer legal, but raay be trea
son, and, if successful, Avould be revolutionary.
This will not be denied by any American
Statesman. "Why is it not equally triie in
reference to the Govemment of the Umon?
It must be, or thore is no such Governraent;
fbr it is an axiomatic truth that no nation can
be sovereign or exercise the powers of Gov
emment unless it have the political right to
decide ultimately on its OAvn sovereignty.
That right is given by the people to the Gov
emment they established by the Constitution
of the United States — and without it there
could be no practical Govemment of the
Uniou — and the national Constitution would
possess no inherent vitality or power as a su
preme law, for all aud over all.
That the constitution is not a league, but a
.LA'W— that it established a Government and

ADDRESS ON THE 22nd FEBRUARY, 1852,

357

not a confederation — and that the Government
it instituted is suprerae within its sphere —
was aU conceded by the oracle of a raodem
party called nuUifiers. But this concession
Avas, itself, nullified or neutralized by the sui
cidal assumption that each State Government
is, as to the General Government, a "co-ordi
nate" sovereign; aud has, therefore, a constitu
tional right to maintain, by force, its own de
cision against ' that of the United States on
the Constitutionality of every act of the Gov
ernment of all the people of all the States.
This assumption is a virtual denial of the
supremacy of thc Constitutiou of the United
States — for surely that cannot be a supreme
laAV which those, who raade it and for whom
it was made, have not the exclusive right,
finally, to interpret and enforce. And, conse
quently, if the Constihition of the United
States be law, and if the Union can be main-
tamed by a common Govemment, the people
of that Union, as the constituents of that Gov
emment, must necessarily have the right to
uphold and enforce their own political author
ity, accordmg to their oavu organic judgment,
agamst the conflicting opinion of any rainor
portion of them — whoever and wherever they
may be.
'When it is admitted^ as it is and raust be,
that the Constitution established a Governraent
whi«hhas a right, ¦within its prescribed sphere,
to operate supremely — tiiat is, above all other
power, popular or political — over every citi
zen of every State — it is a palpaple sophism
to say that any citizen or a raajority of the
citizens of a State have, nevertheless, a consti
tutional right, in the last resort, to decide that
the General Govemment had transcended its
sphere — and thus to overrule au opposing de
cision by that Government itself, or by all the
other citizens of the United States. Such a
Constitutiou cannot be a supreme law — and
would not establish n Governraent over all
the people of the Union — but would, in effect,
be only a league between sovereign States.
It would be absurd to say that the Constitu
tion is suprerae over all the people of all the
States, and that yet a majority of the people
of any one State, even the smallest, have a
right to exercise, whenever they may choose to
do so, supremacy over that supreme law. But
this is the ludicrous position assumed by those
who contend that each State possesses sover
eignty co-ordinate with that of all the States
umted under one Suprerae Governraent,
adopted by the citizens of all for the protec
tion and control of every citizen of each and
all. If the sovereignty of one. State iu the
Union, and that of the Governraent of all the
people of the Union are co-equal, then the
conclusion is plain and inevitable that no pro
vision inthe Constitution ofthe United States,
nor any one law enacted by Congress, can be
"the Supreme Law of the Land" — any pro
vision in any State Constitution or State Law
to ths contrary notwithstanding.

The stumbling block of the party who
claim co-ordinate supremacy for the individual
States is the assumption that the General
Government has, in a given case, gone beyond
its sphere and usurped State power.
Admit that it has done so, and that, there
fore, its act is void. Still it is not a Govern
ment, and its Constitutiou cannot be the Su
prerae Law if, instead of itself or its entire
constituency, the people of any one of the
States have the right to decide for themselves,
flnally and authoritatively, thatthe act is un
constitutional. But suppose that the act is,
in fact. Constitutional — then it is entitled to
be the Suprerae LaAV in every State in the
Union. Yet it could not so operate, if any
one of the States should, erroneously, decide
otherwise and thereby nullify the constitutional
act — even though that decision might conflict
with that of the whole Union besides. The
Constitution has notleft the Union in any such
helpless or hopeless coudition. It has not
only proclaimed its own supreraacy, but has
provided means for upholding it against all
local opposition. And these alone raake, or
could raake it the Supreme Law. As such,
Washington signed it — and as such his admin
istration raade it effectual and illustrious.
And all the people should reraember this
whenever they assemble to commemorate the
birth of the greatest of the founders of their
National Temple of Civil and Religious Lib
erty. These essential principles of the American
"Imperium in imperio," in the normal state of
our complex system, are conclusively settled
by authority, consecrated by our history, and
illustrated by the acts and the counsels of hira
whose memoi-y we this day celebrate.
Tirae will not allow us, on the present oc
casion, to indulge in further contemplations
on this copious aud interesting theme. We
have only looked at the vital principle of our
political organization.
Such, then, in outline, is the political fabric
reared under the auspices of Washington. —
Preserve it as he left it, and all will be safe —
safe to us, safe to our posterity, aud as
hopeful, as safe to all raankind for ages to
come. How to preserve and transmit it unim
paired, he has taught us in his patriarchal ad
dress to his countryraen. Without this last
and crOAvning act, his Avork on earth would
have been unfinished. But, true to his trust,
aware of the proneness of all popular govern
raent to degeneracy and ruin, and anxious that
ours, the best ever established, should have a
fair trial, he fulfilled his raission by bequeath
ing to his country his oracular counsels — and
then, committing all that he had done to the
virtue of the people, he left it and them to
live or perish under the prptection of Provi
dence, the guidance of his own name, and the
light of his principles and example. That pa
ternal legacy is, to American politics, what
,the Decalogue is to nnirersal morals. It is as

358

ADDRESS ON THE 22nd FEBRUARY, 1852.

true as Revelation, though it may lack its in
spiration. May it ever be familiar to our
thoughts aud hallowed iu our affections. It
declares the national origiu and operation of
the General Govemment, the supremacy of its
authority, and the cocrciveness of its power —
urges the countless value of the Union it was
intended to cement — Avams against the wick
edness of prescriptive party spirit — the danger
of local prejudices, and the suicidal folly of
sectionalism — denounces, as treason, every
factious effort to dissolve the Union, or resist,
by force, the will of the nation endorsed by
the authority of the tribunal appointed by all
as the final arbiter of the constitutional rights
of each and all — recommends the faithfulob-
servance of neutrality in the local concerns of
other nations — ,the cultivation of peace and
friendly intercourse with all as equals, the
protection of our own industry, the physical
iraproveraent of our own country, and the
moral iraprovement of our own people — incul
cates the indispensable necessity of the prev
alence of the Christian priuciple and spirit — of
tolerance for difference of opinion or of faith
in politics and religion — of a pure and mag
nanimous patriotism, aud an habitual venera
tion for the fundamenlal law as the palla'diura
of our Union and liberty — and finally rebukes
a spirit of conquest or of propagandisra as in
consistent with the genius and proper destiny
of a model republic — which should never, like
Mahomet, propagate its principles by the sAVord,
but should rather, like the great prototype of
Christian Republicans, commend them to man
kind by peacefully illustrating their wisdom
and benificence at home.
The Washington doctrines of the Constitu
tion and precepts of the Valedictory Address
constitute the true orthodox creed of Araeri
can politics. Every citizen, who approves and
will uphold thera, is of the only party which
can ever stand among us ou principles conser
vative and immutable — and that is — the 'Wash
ington party.
Personal parties — factious parties — all poli
tical parties — organized for the aggrandize
ment of men, or animated by any other desire
than that of promoting the welfare and secur
ing the liberty and peaceful glory of our
country, will be spurious and must be ephe
meral. And if it be the destiny of America
to be a permanent theatre of human amelio
ration, or the fate of her free institutions long
to survive and prosper, the statesmen of the
Washington school will overcome and keep
down all selfish associations and unprincipled
politicians If the glooray day shall come when, that
Earty shall go down, and its principles shall
e discarded and neglected, then let the de
generate race of recreant paricides tear from'
our national calender the name of Washing
ton and desecrate his birth-day to the servile
worship of some raeretricious idol, or consign
its glorious memory to oblivion. But, if raan
deserve democratic freedom and be capable of

upholding it, that disastrous day will never
come — or, like a pestUential cloud, will soon
pass away, and, by its transient gloom and
desolation, will prove, for ages to follow, the
wanton folly of renouncing the principles or
disregarding the precepts of him who was
" first in war, first in peace, and first in the
hearts of^his countrymen." As long as his con
stitutional principles prevail, and his patern
al precepts are observed, occasional eruptions
on the skin of the robust body of our A.merican
Liberty wiU be as harmless to our institutions
as the volcanic belchings of smoke from Mtaa
or 'Vesuvius are to the stability of the earth.
The former, like the latter, may indeed be
useful in throwing out and wasting fiery ele
ments which, without these safety valves,
might produce ultimate convulsion.
Only let Washington's principles and pre
cepts be properly regarded, and then it will
be as impossible for attempts at nullification
and secession, or any other factious and un
constitutional raovement-to dissolve this Union,
as it ¦would be for puny man to disturb the
harmony of the solar system.
In our brief history we have had examples
of local agitations threatening the peace and
integrity of the Union The "whiskey insurrec
tion" in 1794 defied and strove to sub^vert the
authority of the General Governraent to levy
excise duties for sustaining its own credit.
But Washington was at the helin, and by
firmly displaying the physical power of the
COnstitiition, he rescued it from degradation,
and put down the treason.
During the wai' with England, in December,
1814, a convention of delegates from some of
the New England States assembled at Hart
ford, Conn., and published a manifesto, pro
nouncing unconstitutional aud unjust, some
of the acts of the General Government, and
asserting the right of the States, in a case "of
a deliberate, dangerous and palpable infrac
tion of the constitution affecting the sovereign
ty of the States, and the liberties of the peo
ple, beyond the reach of the judicial tribunals
or too pressing to admit of the delay incident
to their forms, to be theii- own judges and ex
ecute their own decisions." — Reprehensible
as that organized and apparently factious
movement was, it did not go to the length of
modern nullification. It virtually acknowl
edged the duty of submission to file judicial
authority of the United States as to all con
stitutional questions, over which the Nation,al
constitution gives to the Suprerae Court of the
Union final jurisdiction. Even that proceed
ing, however, subjected to odium and political
ostracisra, the prominent actors in that memor
able convention ; and no portion of the people
were more generally and more perseveringly
prescriptive of them than those of the South
Yet in November, 1832, South Carolina—
the land of the Pinkneys, the Rutledges, and
the_ Marions of the Revolution— went to the
perilous extreraity, in a time of profound peace
and general prosperity, of denouncing, by a
State ordinance, the Tariff fOr protection, as
unconstitutional and oppressive, and of de-

ADDRESS ON THE S3nd FEBRUARY 1852.

359

claring that she had a right to resist, and
would resist it by force. Andrew Jackson,
then in the seat of Washington, issued an ad-
rairable proclaraation denouncing "nullifica
tion" and "secession" as unconstitutional and
revolutionary, and warning the recreant State
that, if necessary for maintaining the Union
and the supremacy of its laws, he would re
sort to the national sword, and, at all hazards.
quell the seditious rebellion. That bold step
led to capitulation and virtual subraissiou —
the Government adhering to the principle of
protection, and South Carolina retreating from
her rash and indefensible position.
Unchastened by that eventful precedent, a
a large portion of the politicians of that restless
State, have been, more recently, agitating the
Union on the subject of domestic sla^very — and
malcontents in the South have been lately
concerting measures ostensibly for secession
from the Union, which they recklessly assert
to be a constitutional right. Many of these
men think that it is the duty of Congress to
force slavery into certain Territories whether
the freemen thereof wiU it or not. 'While their
antipodes — fanatical abolitionists and free-
soilers — have been urging Congress to forbid
slavery in those territories, even though the
citizens, who ought to decide all such ques
tions for themselves, raay desire its introduc
tion among them. Thus we have had the
humiliating spectacle of secession denounced
South unless Congress will do a violent thing,
and of secession apprehended North unless
Congress will do an opposite thing equally
violent and inconsistent with Araerican Inde
pendence, the spirit pf the constitution.and the
comproraises which brought it into being and
have hitherto preserved its healthful existence.
How much raore reasonable, prudent, and
just, is the intermediate doctrine that every
separate community of freemen should be per
mitted to regulate their own domestic relations?
This, untU lately, was the favorite doctrine of
the whole South. It ought also to be the doc
trine of the North. It concedes to the citizens
of territories only what those of every State,
North as well as South, may lawfully do for
themselves. The translation of slaves from a
State to a territory will not, any more than
their migration frora State to State, increase
the aggregate nuraber otherwise than by ira-
proving their condition, which true philan
thropy would desire; preventing their disper
sion, only aggravates the evils of slavery and
increases the wretchedness of slaves, which
benevolence and policy both forbid. And
surely the voluntary admission or interdiction
of slavery by a territory would not be a na
tional act for which Congress or any State
could feel responsible. The only prudent
mode of treating the delicate subject of slavery
in the United states is for Congress and the
people of the States where it does not exist to
let it alone. It must run its own course to its
natural destiny. Foreign intermeddling with
it will only prolong its existence, aggravate
its evils, and disturb the harmony of the
Union.

The late Compromise act of Congress ad
justs this distracting warfare of sections on
the proper basis of non-interference with the
doraestic institutions of States or Territories,
and of a prompt and faithful observance of the
constitutional injunction to surrender fugitive
slaves just as fugitive freemen are required to
be surrendered.
If that healing act shall fail to restore har
mony, and if abolitionism, secession, or nulli
fication should again disturb the peace, pru
dence might recommend a resort, in a proper
case, to the expedient of Washington, for test
ing the strength of the constitution and trying
whether Union is stronger than faction. Should
this experiment prove ineffectual, the result
would show that the work of our Fathers is a
failure. But should it. as we believe itwould,
succeed, the practical illustration of the
power of the constitution to preserve itself
would be useful for ages.
In the exuberance of our national blessings
let us not forget that we oWe not only grati
tude to Providence for bestowing and to our
fathers for transmitting the sources of them,
but the duty also of preserving and handing
them down to our children improved and aug
mented, and extending them, by our sympa
thy and the light of our example, to all peo
ple who may be prepared to obtain of and to
enjoy thera. But it is not fit that a Republic
should cherish or encourage a crusading spirit.
Let us never presurae to judge between parties
in any foreign country, or to make the cause
of either our cause. Other nations have as
rnuch right to decide betAveen our Government
and any opposing portion of our people —
black or white, bond or free — and to espouse
the cause of the weaker or insurgent party.
Though the balance of power and hereditary
absolutism are the dynastic principles of Eu
ropean policy, and non-intervention and the
right of every nation to regulate its own affairs
are leading Araerican doctrines, yet, even if
these cisatlantic principles of international
law should be violated by Kings in the old
world, it would be neither our duty nor our in
terest to oppose, by force, improper interven
tion on another continent. Nor would the
cause of liberty be promoted by any such
course. When the people of Europe shall
be prepared for popular institutions autocrat
ic interference will be powerless, and the dy
nasties will all fall: before thai propitious
season, revolution, as in France, might be
Eremature and barren of permanent good.
let us hold up, a good example as a beacon-
light; and, if we please, we might signi fy to
crowned heads that interference by any of
them in the doraestic affairs of other people
will be disapproved by our Government, and
that its disapprobation will be manifested by
all-peaceful mea,sures that may be pnident and
befitting. But let us be careful to go no fur
ther unless in self-defence or for legitimate re
taliation for wrongs done to us.
Kossuth may be an unalloyed patriot. We
hope he is. He has, by some of our fellow
citizens, been styled " the great advocate and

360

ADDRESS .ON THE S2nd FEBRUARY, 1852

defender of Liberal principles.'' This we
could not adrait, however well we might think
of his talents or his aims. What his ultimate
principles are or how conservative, time and
chance alone can decide. Nor do we know
what he or his country would do or be if lib
erated from a. foreign yoke. We would be glad
to see all raen, everywhere, as free and as bles
sed as ourselves. But vve ought to know that
few are qualified for the achieveraent or enjoy-
raent of those great and peculiar privileges of
jiopular liberty and equality. Governraent is
relative — and that is the best for any people
which is the most suitable to their grade in the
scale of intelligence and virtue. And we know
not that Hungary is better prepared for dem
ocratic self-government, than France, Ireland,
England, Scotland, Poland, Germany or Italy.
But we may confidently assert that a people,
property prepared, for free institutions, will, in
the congenial season, have thera either in form
or in substance. Let all who feel it, prudent
ly manifest syrapathy for the Magyar race, and
let our social hospitality be extended to their
exiled leader — our Government may, if it
please, offer him an asylum uuder the flag of
our Union; but let us not offer assistance to
their cause uuder the bloody banner of inter
meddling war. The best we could now do for
him and his doomed country would be to con
vince them by our own conduct and condition
at home, that peace, liberty, justice, and pro
gress are the fruits of such institutions as ours
administered on the platform of Washington's
principles, precepts, and example.
Fellow-countrymen — are those principles
ours ? will we observe those precepts ? do we
admire that example ?
Ladies — though you have no political,
you exercise much moral poAvei-i If you do
not utter, you help to form public opinion.
As citizens you have, in your sphere, rights
to preserve and duties to perform: and mothers
in a republic arc missionaries of crder aud
truth. ¦ The characters of their children,
moulded under their plastic tutelage, will
make them either a blessing or a curse to their
country. Theu, mothers of America, hold up before
your nurseling sons the life of Washington :
teach them his principles — impress on their
infant hearts the excellence of his parting ad
dress to his countrymen — and point them to
the light of his beautiful exaraple. This may
be the best you can do for them, next to teach
ing them the word of God.
Young gentlemen of Transylvania Law De
partment — at whose request this faddress is
delivered — having come here to study juris
prudence, it is peculiarly your duty to become
thoroughly imbued with the principles of youi
country's organic institutions. Do you now
understand them as Washington did ? — Do
consider the National Constitution as he did
when he signed it as President of the Federal
Convention, and as it was illustrated by him
while he was President of the United States ?
If you do, you are prepared with the best
armour for defending, tothe uttermost, the in

tegrity and supremacy of the Union he lived
to consolidate. Though you may not expect
to be Washingtons, each of you should strive
to be, and might hope to be, like him, an hon
est raan, and a good citizen. Tou may adopt
his golden motto, "that above, ourselves, our
country should be dear." And if it shaU be
your fortune to act important parts in coming
scenes, reraeraber that popularity is not re
nown, and that notoriety is notfarae. Impress
en your hearts the universal truth that the es-
teera of wise and honorable men is the con
stant, shadow of sound principles and honest
acts. And never forget that the raagnet al-
Avays pointing to the pole star of duty is
that —
" One self-approving hour far outweighs
Whole years of stupid starers and loud
huzzas."
This conscientious sentiraent was the
mentor of Washington.
All that was mortal of that rare man has
crumbled into dust, and reposes in solemn si
lence pn the banks of the majestic Potomac
almost in sight of the Metropolitan city of his
own name.
But if, as the wisest men believe, his spirit
is still conscious of the affairs of earth, he feels
anxious concern for the Avelfare ofthe countiy
of his cradle and his grave, and for the suc
cess of the free institutions he helped to found.
It would not therefore, be either impious or
irrational to imagine that, this day, he looks
down with emotion on the millions of freemen
whose grateful hearts are pouring out offer
ings to his memory — and would address thera
in something like the following manner :
"Children of tbe Pilgrim Fathers, and cit
izens of the promised land — Listen, once
more, to the counsels of a departed friend 'who
devoted his earthly life to the cause of civil
and religious liberty, and whose meraOry,
therefore, you this day honor. It Avas his for
tune to be born in America, Avhan a compara
tive wilderness under the dominion of Eng
land. He lived to see his countrymen free
and independent, and uuited in a political
brotherhood, as one and the same people.
That independence he helped to achieve — that
Union he helped to establish. They are in
dissoluble companions — neither can peacefully
or prosperously exist Avithout the other. This
historic truth is inscribed ou the tombs of all
buried republics and confederations of sover
eigns. To maintain Liberty and Union, it
was indispensable to establish a National Gov
ernment, vested by the people of the United
States Avith exclusive power over all common
concerns abroad, and Avith supreme authority
over all such interests at home as are uot con
fined to the people of a State. Convinced by
fearful experience of the necessity of such a
Government, the people of the States, then
federal, voluntarily surrendered the requisite
portions of their independent sovereignty, aud
transferred all that raass of poAver to a com
prehensive National Government, constnicted

ADDRESS ON THE 22nd FEBRUARY, 1852.

361

by the Constitution of the United States,
which they alone could have authoritatively
established. With less poAvor than what Avas
thus granted, aud Avithout inherent and
paramount authority to uphold aud en
force Jt, the harmony, justice, or eveu exis
tence of the Union could uot have beeu long
maintained. No power was delegated to the
General Government except what the guardian
of the Union should possess for preserving
peace and promoting "the common Avelfare"
of the people and of the States. To reclaim
aiiy essential portion of that national poAver,
or to object to the full exercise of it, might
frustrate the desirable ends for which it Avas
entrusted to the constituted organs of all the
citizens of the United States. And to deny
the ultimate right of the rcpresamtatives of
the whole Union to decide authoritatively on
the delegated powers of the whole, would in
volve the absurdity of claiming its inferiority
and subj'ection to each of its integral parts, the
practical subordination of which Vas the pur
pose of the Constitutiou, and is required by its
declared aud necessary supremacy. Without
such right the General Government wonld uot
be spvereign- — for authority to decide on its
poAvers is the distinguishing eleraent of all
true aud legitimate sovereignty. The deposi
tory of the natioual powers expressly granted
has the implied, as well as the declared, right
to employ the requisite means for fulfilling the
great trust. And the charter should be so con
strued, and its powers so exercised as to fulfil,
as far as raay be, the beneficent objects of the
grant. Submission to tho acts and decisions
of the General Government, or relief from
them only iu a- raode prescribed by the com
pact of the Union, is the civic obligation of
every, citizen, and of all associations of citi
zens. This is the. object of all Constitutional
Government; and none could long exist under'any
other theory or practice.
It was ray fortune to • be an actor in fra
ming and-adopting the Federal Constitution —
caUed a Coustitution, because it was made
by the freeraen of the United States as their
fuudaraental law, for "consolidating" their
Union,, aud overri,iliug all opposition, from in
dividuals or States, to their aggregate ,power
and Avill — and called also Federal, because the
people, in their federal capacity made it, and
because, in the same -capacity they were still
perinitted to act as subordinate sovereignties
over their own local concerns. Thc great ob
ject was to substitute a presiding Government
over the people of all the States in lieu of a
confederation of sovereign States, and to endoiv
that Govemment with all power necessary for
maintaining, against all opposition, its OAvn
authority. Thus universally understood,' I
approved and signed it as President of the
Federal Convention, and, with the same under
standing, it was ratified by the people of the
States. Such au absurdity as a concurrent
sovereignty in the States was not then thought
46

of as being consistent with the spirit, the object,
the provisions, or the supremacy of your great
National theater.
Like the Mosaic Econoray — according to
Avhich, each of the Twelve Tribes exercised
local Governraent under the supervision and
ultiraate control, as to all natioual interests, of
the National Government, just as families, and
hundreds and thous£lnds, exercised subordinate
sovereignty in each tribe — each State iu your
Union possesses a local sovereignty for regu
lating its own separate interests, and each
county and incorporated city of every State
exercises, subordinately, a more circumscribed
sovereignty — the Governraent of the Uniou
being the ultimate sovereign, as to every na
tional interest or concern, if in every conffict
betAveen the Government of au integral por
tion of the Union,, and the. Government of
the whole Union, as to their respective spheres
of cpnstitutional authority — the former should
have concurrent and co-equal sovereign power,
any one State might stop the Avheels of the
General Govarnment, and annul or paralyse
any of its delegated powers. This we never
intended— and avc all thought 'vve had made a
Constitution aud established a Governraent
Avhich would forevej prevent a State from
again overruling the United States inany of
their acts held to be Constitutional by the
Authorities provided by their Constitution for
that purpose. This is the vital principle of '
the Pederal Constitution — without it your
Union would have no poAVor to preserve its
own existence — ¦with it, that Union — the wisest,
best ceraeuted, and raost hopeful the world
ever ?aw — may last as long as the memory of
the Patriots who achieved your Independence,
aud of the Statesmen Avho, by adopting its
magna cAarta, did their b est to establish your lib
erties on the Bock of Ages. My valedictory ad
dress contains my opinions as to the nature aud
value of your political Union. / re-endorse ii.
Representing the people and responsible to
thera, like the State Governraents, there is
not as much danger of usurpation by the Gen
eral as by a State Government — because the
former is not so near the affections and felt in
terests of its constituency, aud is subject to
more checks. The tendency of your political
system is centrifugal, rather than centripetal.
There is no danger of too much centralization,
unless it should arise frora a corrupt abuse of
Executive patronage-^it Avill never result from
Legislative or Judicial encroachment on State
rights. But should it ever approach, resort to
no other than peaceful and constitutional rem
edies, unless you shall be well satisfied that
revolution will be better for you and the
cause of liberty, than submission. You have
never hitherto had cause for that last resort of
oppressed man— and there is but littie ground
for apprehending that you ever will have suffi
cient cause for breaking up a Union which yon
could never again re-establish on as good
foundations. Its destruction would be an

362

ADDRESS ON THE 22nd FEBRUARY, 1852.

act of madpess. The map of North America
— with its rivers, its lakes, its mountains, its
seas, its climates, and its soils— points to
Union. Its population — of coraraon origin,
common language, common faith, coraraon
history, eommon narae, and common glory —
invites to Union; the blessings it has conferred,
and the history of all confederations demon
strate the value of the principle of your Union;
and the memories of the past, the enjoyments
of the present, and the hopes of the future,
consecrate that Uniou as cemented with the
blood and constructed by the wisdom of your
revolutionary fathers. Under its auspices you
have grown and prospered beyond example —
your will rules from the Northern Lakes to the
Gulf of Mexico, and from the Atlantic to the
Pacific Ocean — every citizen is a sovereign in
his sphere, and every freeraan is as free and
secure as he could be under any good govern
ment — your progress and iraprovement are the
wonder of the age, aud you are already the
light of the civilized world. Be grateful for
those unequalled blessings, and. cling to your
Union as the ark of their and your safety.
Let him who is not content Avith it remember
the illustrative fable of thc members of the
human body, complaining of the stomach as
monopolizing and rapacious, and on that de-
lusiye egotism, proposing to destroy the
source of their nourishment and health.
Forcible resistance to the authorities of the
Coustitution is not a political right^successful
resistance by force would therefore be revolu
tion — and unless the result should beau ag
gregate blessing, it would be treason to your
Constitution — treason to the genius of liberty
— treason to the meraory of your predecessors
— treason to the hopes of your posterity, and
treason to all raankind.
'\j7hoever shall attempt such manifold and sac-
riligious treason, would deserve eternal infamy.
But go on as hitherto, and there will bo no
danger. Cherish your OAvn boundless resour
ces of matter and mind. Improve your
country — encourage fraternity and intelli
gence by arteries of circulation throughout
your land — educate all your children — cul
tivate their bodies, their minds, aud their
morals'— ^indoctrinate them in the benign prin
ciples of a rational and charitable Christianity
— acquaint thera early with the true principles
and history of your institutions — attend to
your own concerns — abstain frora officious in
terference with those of other nations — elect
your best and ablest men to all places of
public trust — never become parasites or place
men, or sycophants of rich men — countenance
virtue, and frown on vice, in whatever habili
ments they may be clad — uphold the law as
the shield of the weak and the sanctuary of

the innocent — lOve your country and your
kind— and steadfastly maintain yoiir blessed
Uiiion and all its Vital, powers and functions-^
and then the close of this century will exhibit
to the admiration of good men and angels,
aud to the terror of bad men and demons, one
hundred raillions of freemen, of the Caucasian
race, on the continent of North Araerica, far
ahead of all other people in privileges and
cnjoyraents,,and blessed with institutions more
rational, laws raore just, and a country more
beautiful than any ou which the sun Avill then
shine — then "American" will be the most
honored of national naraes — Liberty the most
cherished of earthly possessions — and all things
may be ready for the dawn of millennial light
and peace; aud then, too— though last, not
least — Araerican principles aud the English
, language Americanised will be understood
! and admired, if not adopted, wherever Chris
tianity has a temple, science a raonuinent,
or Liberty an altar on the footstool of
God." Fellow-citizens of the United States, if we
of this generation will follow these counsels,
this patriotic visiOn will become historic tmth.
But, if we discard the principles or neglect
the precepts of the tutelar genius of our coun
try, we must expect that the doom of all fallen
republics will, at no distant day, become our
unhappy destiny. Shall this doleful tale ever
be told of the countrymen of Washington, of
Franklin, of Hamilton, of Jefferson, of Madi
son, of John Marshall, of Webster, of Clay?
Shall they, by their apostacy from the faith
of their fathers, verify the predictions of
the foes of self-government, and, by their de
generacy aud recreance, blast the best, and
perhaps the last, hope of the friends of equal
righti Shall they, unmindful of their oavu
dignity and of the history of ages past, yield
theraselves up to selfish deraagogues — surren
der the glorious name of Araerican — cast lots
for the vestments of Washington — crucify his
name, and scatter his ashes to the senseless
winds? Forbid it reason — forbid it liberty —
forbid it ourhousehold gods — forbid it heaven.
No — this must not, cannot be our ignoble fate.
The age, with its cheering tokens, points to a
far nobler future. Under a benignant Provi
dence, Ave have cause to hope, that our course
AA'ill continue ouAvard and upward until man
shall reach his ultimate state of sublunary
dignity. Then let us live iu the trust that the all-wise
Creator of our race — who guided the pilgrim
band from the old to the new world, and has,
thus far, signalized their adopted country with
peculiar blessings — -will still guide us in
the pathway of duty and bless the great mission
of liberty and light to this Land of Promise

PRELECTION,

The following judicial opinion on important Constitutional questions ;
and the following Briefs in the Supreme Court of the United States, and
petition for a re-hearing in the Appellate Court of Kentucky, contain
matter deemed useful and rather peculiar ; and are therefore herein
re-published for more general circulation.

M. W. DICEEY, against The Maysville, Washington, Paris and Lexington
Turnpike Eoad Company.
[Messrs. Robinson and Johnson for appellant: Mr. Owsley for appellee.]
FROM THE CIRCUIT COURT OF MASON COUNTY.
Chief- justice Robertson Delivered the Opinion of the Court,

The only question presented for considera
tion iu this case, is whether Milus W. Dickey,
as the contractor for carrying the United States'
Mail from Maysville to Lexington, in this
State, has the right, in execution of his en
gagement, to transport the raail in stage
coaches on the turnpike road between those
ttrmini, without paying, to the use of the
Tumpike Corapany, the rate of toUage exac
ted by it, under the authority of its charter,
from other persons for thc transit oftheir hor
ses and carriages.
All national power should belong exclusive
ly to the general or national governraent..
And, as nothing can be more national than
the regular and certain diffusion of intelligence
among the people of the United States through
the raedium of the public mail, therefore, the
power "to establish post offices and post
roads" is expressly delegated by the federal
constitution to the Congress of the United
States; and that poAver being necessarily ex
clusive, plenary, aud supreme, no State can
constitutionally do, or authorise to be done,
any act which may frustrate, counteract, or
impair, the proper and effectual exercise of it
by national authority. From these axiomatic
truths it follows, as a plain corollary, that the
general government has the unquestionable
right to transport the national mail whenever
and wherever the National Congress, in the
constitutional exercise ofits delegated powers
shall have prescribed. But full,, and exclu
sive, aud sovereign, as this poAver must be
admitted to be, it is not unlimited. It cannot
appropriate private property to public use
without either the consent of the owner,
or Irhe payment of a just compensation for
the property or for the use of it. If the
general government may constitutionally use
a private way, or establish a post road through
the lands, or a post office in the house of a
private person, any person whose property
shall be thus taken or used for public benefit,
may lawfully demand a just compensation for
the property, or for the use of it; the federal
• constitution expressly secures it to him by in
terdicting the appropriation of private property
to public use, without the owner's consent, or
just compensation.

. Having been , constructed by an association
of individuals incorporated into a private body
politic by an act of the Kentucky Legislature,
which gave, the corporation the right to charge
tolls according to a prescribed scale, iu con
sideration of the appropriation of its oavu funds
to the construction of the road for the public
benefit — the tumpike road from Maysville to
Lexington should be deemed private property,
so far as the value of the franchise and the
right to preseve it, aa conferred by the charter
in the nature of a contract, may be conceru^d.
And therefore, the public — whether it be Ken
tucky or tho United States^cau have no con
stitutional right to use the road without con
tributing, to its reparation and preservation,
either a just compensation for the use, or the
rate of tollage prescribed by the corporation
under the sanction of its charter. By author
izing the company to exact a fixed corapensa-
for the use of the road, the charter interfered
with or impaired the power to carry the mail
wherever Congress should elect to carry it, no
more nor othervrise than it obstructed or im
paired the right of every freeman to travel on
any public Avay he might choose thus to use.
Had Congress designated this road as the
mail route from Maysville to Lexington, the
right to use it as such Avould have beeu subject
to the condition of paying either a just com
pensation, or the toll which every citizen is
required to pay; for the road Avould still have
been the property of the corporation, and the
burthen of repairing it, Avhen dilapidated by
the horses and coaches ofthe mail contractor,
Avould have dcA-olved on the stockholders.
There is no restriction, as to locality, on the
the federal power to establish post offices aud
post roads. But the right to use private prop-
erey for a raail route, as for any other national
purpose, being qualified by the constitutional
coudition that a just corapensatiou be made
for the use unless the OAvner shall voluntarily
waive it, the power to establish post offices
and post roads wherever Congress deem it ex
pedient to establish them, though exclusive
and supreme, does not, therefore, imply an
authority to take or to use, for that purpose,
tho land or the house of a citizen, or the raU
road or McAdamised road] of associated citi-

DICKEY va. TURNPIKE COMPANY.

365

isens, without paying Jo the OAvner or owners
a just compensation.
The turnpike road between Maysville and
Lexington is the property of the stockholders,
in the same sense in which the railroad be
tween Lexington aud Frankfort is the property
orthe Company whose money constructed i't.
The only difference is, that the railroad com
pany-is not required by its charter to pennit
any person to use its road otherwise thau for
transportation in its oivn vehicles, and the
charter of the tumpike company requires it to
permit all persons, who may desire to use its
road for transportation or travel, to do so, in
their own way — on foot, on their oavu horses, or
¦with their own carriages — by paying a pre
scribed toll. And can it be doubted that the
United States would have no constitutional
right to use, as a mail route, the railroad be
tween Lexington aUd Frankfort, without the
consent of its OAvners, or without paying thera
for the use a reasonable compensation? He
who doubts on that subject, would be. chargea
ble with palpable inconsistency, unless he
should also doubt whether his own house might
not be taken and used as a post office without
his consent and -without any compensation; for
the power to establish post offices and the poAver
to establish post roads are commensurable,
and the one ' is as sovereign and unUmited as
the other, and not in any sense or in-any
degree, more so.
Can the carrier of the United States mail
have a right, eithe^ legal qr moral,, to use the
bridge of a private person, or of an incorpora
ted corapany without paying pontage, or the
ferty of a grantee of suoh franchise without
paying ferriage? That he would have no such
right is, in our judgment, indisputable. - And
the denial of such an unjust and anomalous
pretension is not at all inconsistent Avith the
proper supremacy of the general government,
iU^tiie exercise of its necessary pOAver to trans
port the mail as cheaply, speedily and certainly
as possible, and when and where Congress
shaU have prescribed and had authority to
prescribe. Thepower delegated to the gen
eral govemment over the raail cannot he
greater -than that which each State onde pos
sessed' within its own borders; and had the
people of the States never delegated any suoh
power to Congress, the State of Kentucky, in
all the plenitude of her power, upon that hy
pothesis, would surely have no right to use
the Lexington and Maysville turnpike as a
post road without paying a just equivalent to
the company; for the constitiitipn of Kentucky,
like that- of the United States, provides that
private property shall not be taken for public
use without "just compensation" to the oAvner,
or without his consent; and raoreover, no
State can, consistently with the federal con
stitution, pass any legislative act impairing
the obligation of a contract; and not only is
tumpike stock private property, but the charter
of the company is a contract, entitling "'' -

stockholders, for a valuable consideration, to
prescribed toUs,of which the legislature coiild
not deprive them without impairing the obli
gation of a solemn contract, and violating the
plighted faith , of Kentucky. There can, we
think, be no doubt that the State had a perfect
right, to make such' a contract, -and,' having
made it, is certainly under a clear moral aud
political ,obligation to observe it Scrupulously
and in good faith. , i '
' But, if the Lexington and Maysville turn
pike should be deenied in all respects a State
road, aud if the power to establish post roads
should be ' understood as giving to Congress
authority to designate and use, as a post.road,
any highway in, a State, Avithout the consent of
the State,, nevertheless, such' a power could
not be understood as implying a right to use
State roads upon any terras, or in any manner
the general government may choose to pre
scribe, or on better terras thau those on Avhich
the people of the States themselves are permit
ted to use them in a sirailar raanner. It cer
tainly does not impose on any State the duty
eitheir moral or political, of making or of re
pairing roads fOr post roads', but leaves them
in the full possession of all the discretion they
AVOuld OtherAvise, have liad to make such
State roads, and to keep them in siich repajr
as their own convenience and judgment alone
may suggest. The people of the several
States are under no eonstitutional obligation
to make Or repair roads for the use of the gen
eral govei'ument; nor can they be required to
apply their oAvn money or labor even to fhe
keeping open of auy one of their roads which
shall. have been, designated as a post route;
for, though a State highway once legally de
signated or established as a post route may
continue dejure a post road as Ipng as, the act
of Congress by Avhicli it Avas so designated or
established shall remain unrepealed, yet cer
tainly the State'Ayill not, therefore, be bound
to continue it, but may discontinue it as a State
road; and consequently, if,,after any such dis
continuance of ally such State road, the gen
eral government choose still to use it as a
post road, Congress must keep it open and in
suitable condition, by the .application of na
tional means. The people of a single State
are not exclusively interested iu the transpor
tation ofthe national mails Avithin and through
their own CommonAvealth; thc pebple of all
the States are benefitted by thc proper and ef
fectual transportation of intelligence through
each State. And hence the interest being thus
common, and tho poAyer therefore n.itional, the
burthen, and the responsibility also, should be,
and undoubtedly arc, equally national, in
each and every State. The right to judge,
and the responsibility of judging, as to Avliat
roads aud kind of roads the United States shall
havo for post rpads, having been devolved on
Congress, a State can neither exercise any
controlling authority in that respect, nor be
theiheld responsible for any deficiency in any of

866

DICKEY M. TURNPIKE COMPANY.

the facilities necessary or proper for the most
effectual transportation of the mails.
A rightof way, upon terms equal and common
to all, is, in our opinion, the utmost privilege'
that can be implied- by an authority to desig
nate State roads as post routes.
..., If , one. State should, at a-great expense, con
struct and preserve excellent roads, for the
use of which it should exact a prescribed and
reasonable toll sufficient for reparation, or
even for inderauity for the cost, the people of
other States, not choosing to provide such
roads for themselves, would have ho right to
require dr expect that the public mails, in
Avliich they are all interested as a national
concern, should be transported, in carriages or
OtherAvise, upon those costly and superior
roads, without any contribution from the na-,
tional purse for such national use, aud for the
wear ahd deterioration necessarily resulting
from it.
If Congress, representing the interests and
Avills of the people of all the States, shall fail
or-refuse to raake any appropriation for con
structing or repairing, or for aiding the con
struction or reparation,' of good roads in a
State, the general government would, as 'it
seems to us, have no pretence for claiming, for
the fedtral public, any exclusive privileges in
using such roads as post routes, or any ex
emption from the burthen common to every
individual of the local public, whose labor
and money alone made and must preserve
them. It appears to us, tliat permission to the
general government to use State roads as the
State aud its OAvn citizens use them, and on
the same terms, should be considered a boon
rather than a burthen — a valuable privilege
rather thau an unjust or unauthorized exaction-
A State road is, we think, private property,
as contra-distinguished from federal property,
by the federal constitution. It belongs to the
people of the State, was made by thera, raust
be repaired and preserved by their labor and
moUey, and is sulyect exclusively to their ju
risdictiou and control. Then, according to
the, constitutiou of the United States, can the
general goyernraent possess a paramount-
authority to use and dilapidate such a road,,
and thus impose on the people of the State aU
accumulated burthen without their consent,
aud without making any compensation for the
appropriation of their local property to inter
national use? We can perceive no plausible
ground for an affirmative answer.
But the learned counsel for Dickey has ar
gued that, if the power be conceded to a State'
to tax the general government for transporting
the raail on a State road, the right to designate
and use State roads as pOst roads might be
altogether frustrated by a perverse and cap
tious Slate. Could the poAver to exact com
pensation or toll from the general government
for using State roads for post roads, imply au
illimitable right of exaction AVhioh might be
so abused as to amount to a prohibition of the

use, and had the pow^ oyer post road? been
given to Congress for the purpose of designa
ting the mail routes, and for no Other purpose
than that of designation ahd use, we would
acknowledge that the argument would be •not
less conclusive than it may, on a superficial
view of it, seem to be plausible.
Bnt wc do not admit, either that, a federal
power to designate and use State roads for post
roads and a State power to exact a just com
pensation or toll for the use are necessarily
conflicting powers; or that the Lexington and
Maysville turnpike has ever beeu designated
as a post road; or that the power to establish
post roads Was given luerely for enabling
Congress to designate and use State roads as
raail routes; or that a denial of the right to use
State roads without the consent of the State,
or without jtist compensation, would destroy
or essentially irapair the national compre
hensive and suprerae power "to establish post
roSads.-" The national power to use the land of a
citizen or a State for an armory or fortifieation,
is undoubted and irrestible. The constitution
al obligation to pay the owner a jUst equiva
lent, if it be demanded, is equally undoubted
and inevitable. Yet; nevertheless, there is
no conflict of power or of right, and the su
premacy of the general govemment is unques
tioned and unimpaired. And the acknowledg
ment of a right iii a State or a private corpora
tion or a citizen to exact a toll from the gen
eral govemment, for the use of a road as a
post road, does not imply that the right is un
limited. , If the general governineut have no
right to use a State road or private road with
out thc consent of the' State or OAvner, then the
power to exact toll for using it would'undoubt-
edly be illimitable; and nevertheless, if exer
cised so as to prevent the use, the general
government would surely have no just cause
to complain that auy ofits powers or rights had
been denied. But, if the general government
have a right, without the consent of a State,
to use a State road as a post road, the fact
that such a right exists, prescribes a clear aud
indispstable boundary to the power of taxing
for the use; and that is "a just compensation"
^the right to exact Avhich cannot be inconsii-
teut with the proper exorcise of auy poAV^r, or
enjoyment of any right, which can 'be consti
tutionally clairaed by the national govem
ment. If, as iu this case, the tax or toll bo uniform
and universal, tho very fact that it is so, is the
most satisfactory proof, that it doesnot exceed
a just compensation: first — because it has heen
fixed by a public and geperal law operating on
all alike; and, secondly — because it would be
unreasonable to presume that a State, when
fixing a general rate of tollage for the use of a
road constructed and preserved only for public
use, would ever attempt to exact a rate so ex
orbitant as to defeat the obj ect of prescribing it:
,that is profit, or indemnity, to the people of

DICKEY vs. TURNPIKE COMPANY.

867

the State, to be scoured only b.y the general
use of it. And there is no complaint that the
toll exacted in this case exceeds a just com
pensation. Moreover, as before suggested, we under
stand the power to use State roads as post
roads, to be only a right of coramon way; that
is, an authority to use siich roads as the people
themselves use them, and on the same terms —
neither better nqr worse. Ahd, on this construc
tion, there can be no semblance of plausibility
in an argument founded on possible abuse of
State power.
But, unless live are altogether mistaken, the
MaysAdlle and Lexington tumpike has never
been even designated by Congress as a post
road. The act of , Congress , directing the
mail to be carried betAveen Lexington and
MaysA-ille, designated no particular road or
route; and it Avas,moreover, passed Jirior to
the construction of the turnpike, which is far
from being identical iu locality Ayith the old
road which it supplanted. ^ If, then, any road
from Maysville had ever been desigiiated as a
post road, it ¦was the old and soraetiraes im
passable road wliich had been discontinued
since the corapletion of the new and far better
road of the tumpike company. But in' this,
as in most other instances since the adoption
of, the federal.constitution. Congress has, not
exercised its power "to establish post roads;"
but.has chosen to depend on tlie self-interest
and comity of the government and people of
Kentucky, and the discretion of the raail con
tractor, who may carry the raail on the turn
pike, .oi: not, just as he may prefer and be -per
mitted. If, then, Mr. Dickey be uuAviUing to pay
for using the turnpike road, he may, Avithout
any violation of the law, or breach of his con
tract, adopt some other and cheaper road,
proA'ided he >hall carry the mail in the time
required, and vrith safety. But if hte will use
a road never established as a post road, he
certainly can have no right to claim , any ex
clusive privileges, or to refuse to comply with
the condition ou which alone every other per
son is permitted to use the sarae road; and
surely the general governraent — having neither
contributed to the constriiction or reparation
of the turnpike road, nor established it as a
post road, nor claimed the right to use it with
out paying the prescribed toll, nor even stipu
lated for securing such use of it to the, mail
contractor — could have no pretence for com
plaining that the exaction of toll from the con
tractor, is a defiance of its supremacy, or an
impairment of its rights. But that government
has not complained, nor will it, as, we are
bound to presume- The Postraaster General,
as we presurae, made the contract with Dickey,
with the understanding by both parties, that
if, as was doubtless expected, he should carry
the mail on the turnpike, he would havo to
pay the customary toll, for which he expected
to be indemnified by the facilities afforded by

such a road, and by the price allowed to him
by tho , contract; and there is, therefore; no
pretence for insisting that the exaction of tolls
conflicts with any power of the general gov
ernment, or for withholding from the owners
of the road that compensation for which thc
contractor has been indemnified, either by his
contract, qr by the road itself.
But the simple power "to establish post
offices," necessarily including (aft it does and
has always been understood as doing) plenary
authority to superintend the transportation of
the national mails, would, itself and alone,
give an implied right of way over State roads
as they shall be found to exist, aud cum onere.
The power to estabUsh post offices was given
by' the articles of confederation to tho confed
erate Congress. And, though that body was
expressly interdicted frora exercising any other
power than such as had been expressly delega
ted, nevertheless it had, invariably and without
question or complaiiUt anywhere, superintend
ed and regulated the transportation of the
entire mails of the States, and used, for that
purpose, the roads of the State? as the people
used thera, and no other roads, nOr on other
or better terras.
Bufthe confederate Congress had no power
to raake or repair post roads, or to use any
other road than such as the States choose to
keep open and to use.
The want of such comprehensiAre and elective
power AT;as, as we presume, felt to be injurious
aud sometimes subversive- of the great end of
giving to the organ of the natioual .will exclu
sive control over the national mail: not be
cause mail contractors had to use State roads
just as other persons used thera, but because
some State roads Avere not.'altogethcr siiitable
ways for the transportation of the mail with
proper celerity and certainty, , and because
soraetiraes there might be no road where the
natioual interest might require one for, the
most, effectual diffusion of intelligence through
the mails, and because, also, a State might
obstruct or derange the mails by the discon'-
tinuance of a rOad which had beeu used as a
mail route; and, therefore, Avhen the federal
constitution was adopted — and which was in
tended to g^e to a common goyernraent all
national powers necessary for all national ob
jects — the people gave to the national Con
gress the suppleraental and important power
to establish post roads, as well as post, offices'.
As this new specific poiver Avas not necessary
for giving autiiority to use State roads, it
should not be liuderstood as conferriiig any
other right iu thedesighation and use of such
roads as post roads, than that which existed
before, and would still have, continued to ex
ist, without doubt under the constitution, had
it given no other poAver as to post roads than
the pre-existent power "to establish post of
fices," which included necessarily the right
to designate and use State roads as postroa'd'Jw,
As to mere designation- and use, the only dif-

368

DICKEY vs. TURNPIKE COMPANY.

ference is, that, as the power to establish a
pdst road imports authority to fix permanently
and retain, Congress may haye power to keep
open and use, a road once desiguated as a post
road, even though it shall be obstructed or dis
continued by the State. If the po^tver to es-
tabli^li post roads includes the power to desig
nate and Use State roads, the right of use,
which it raay iraply, cannot — with the excep
tion just stated — ;be essentially different from
that implied by the power to establish post
o^Ces and carry the mails. Aud so far the
two powers over post offices and post roads are
identical; but the latter is, in other important
respects, more comprehensive and efficient
than the former; forwe are clearly of the opiur
ion that bpth the objects contemplated by the
grant of the new power to establish post roads
and the plain constructive import of the grant
itself, as inade in the constitution,) show that
this comprehensive and express power "ivas
given, not for authorizing the raere,aesignation
and use of State roads as post roads, but for
enabling the general gpvernment toiuake, re
pair and keep open such roads iu every Stati^,
as might, under .any circumstances, be ne6es-
saryior the raost effectual and satisfactory ful-
fiUraent of the great national trust of transport
ing the national mails safely, certainly, speed
ily and punctually, without any necessary de
pendence on the policy, or will, or purse of any
one ofthe States; and theSe were, iu our opin
ion, the only ends for AVhich that express p ower
was given. And therefore, if Dickey should
be considered as having from the general gov
ernment a charte blanche, entitling him to all
the privileges in the use of anyroad he may
prefer between Lexington and Maysville,
which Congress could have conferred on him,
by designating such road as the post route,
and if we are mistaken in the opinion that the
turnpike is not, in all respect's, a State road-
still, nevertheless, we would be of thebpfnion
that the exaction of toll i'n this case is neither-
unauthorized nor in any degree subversive of
the suprerae power of Congress ""to , establish
post offices and post roads.",
There are those who doubt whether, in giv
ing fo Congress the power to establish post
roads, the people of the States intended tp
surrender to the general government, as amat-
of right, Ihe use , of any and every State road
upou any other terms than each State, for it
self, might think fit to prescribe! The prin
ciple ground of this opinion is a belief thatthe
only motive for giving to Congress the power
to establish post roads, as well as post offices;
was an apprehension that, without some such
independent national poWer, a failu're by any
one SlatO to provide roads in every respect
suitable for post roads; or a refusal at any time,
to permit the mail carriers to use any one of
the roads of any one State on reasonable terms,
might injuriously obstruct the transpprtation
of the national mail, and tend to frustrate the
only end for securing which the entire control
of post offices and post roads was surrendered
by the States to the .general government.

And hence it is argued jthat one-chief object
of giving the/ power tp establish ppst'^oads,
implied an admissipu of an antecedent power
in a State te prescribe its OAi'n term's for the use
by the general government, of a State road,
and that, therefore, the power to establish post
roads does not' indlude the right to designate
and use State road's without the consent ofthe
State but is an ultiraate an d more ttanscenden-'
talauthority tomakeand repair national roads
for post 'roads whenever the unfitness or unrea
sonableness of State policy may render such a
course expedient.
But we shall not discuss that question; for,
conceding, as we do, that the powei' to -estab
lish post roads includes tlie right to' use State
rpads upon comraoU and reasonable terms, we
are also sa|;isfied that it is rauch raore effipient
and coraprehensive, and, was given only fpf
purposes very different from any such end as
that of authorizing. Congress to use State roads
on its^owh terms.
We will,, therefore, subrait some, general
suggestions as to the chafacter and extent oif
this high power. ,
Whether we consider the popular use of the
word "establish," or the definition of it by the
most approved lexicographers, or the admitted
import of it inthe preamble and in the fourth
clause of the eighth section of the federal con
stitution, it must , be undeistood to mean, not
merely to designate, but to create, erect, build,
prepare, fix permanently. Thus, to establish
a character, to establish oneself in business,
to establish a: school, or manufactOi'y, or gov
ernment — all common and appropriate phiases
-^is not to assume or adopt some pre-existing
character,' or business, or school, or manufac
tory, or government. To establish in each of
thbse uses, of the.plirase, clearly expresses the
idea of creating, preparing, founding, or build
ing up. lu^the same sense, too, it is used, and
understood in the Bible; thus it is said,,"The
Lord by wisdom hath founded the eai-th; by
understanding hath he established (prepared)
thfe heavens." Proverbs, iii., 19.
Jiist so, also, is it used and understpod in
thefederal ccustitution. Thus we find in the
preamble these words, "¦establish justice;" "es
tablish this constitution;" and in the fourth
claiis'e of the eight article, power given to
Congress, "to establish an uniform rule of nat
uralization, and uniform laws on the subject
of bankruptcies, throughout the United
States." Thus we might present almost endless il
lustrations of the fact, thai the popular a:nd
phUdlogical, sacred and profane, oracular and
political import of "establish," is not to de
signate, but, to found, prepare, make, institute
aud confirm.
It appears to us, therefore, that "to establish
post offices and post roads" raeans ex vi termini,
not only the designation and adoption of an
existing house and road for a post office and
post roadi but also,mOre comprehensively, the
renting or building of a house, and the con-
structiou and the reparation of a road, and the
appropriation of money for any of those na-

DICKEY vs. TURNPIKE COMPANY.

369

tional purposes, whenevei' any of them shall
be deemed useful. And the unquestionable
fact that "to establish" imports to make or
create in every other place -where it is used in
the constitution and especially in the fourth
clause of the eighth section, tends persuasive
ly, if not conclusively, to prove that the same
words, used, without auy qualification, di
rectly afterwards in another clause ofthe same
constitution, were understood iu the same
sense in which they were emplpyed in the
antecedent clause, as well as in the preamble.
We can perceive no ground for discrimination.
The subject matter of two clauses is not of a
nature so essentiaUy different as to authprize
a more comprehensive interpretation of the
power in the one clause, and a more restrictive
construction of it in the other; and the object
was the same in both: that is, to place the Uni
ted States above dependence on any one of the
States, so far as naturalization, and bankrupt
cy, and post offices, and post roads, might be
concerned, as national objects.
A post office cannot be established without
a house, and a postmaster, andthe adoption of
rules for regulating the office and the trans
mission of themaU; and therefore, all of these
are necessarily constituent elements of the
comprehensive power "to establish post offi
ces." And consequently, if Congress deem
the buying or building of a house for a post
office, expedient, it may and should buy or
buUd one; and the power to do so could not be
questioned; because having supreme authority
"to establish post offices," Congress must, of
course, possess aU subsidiary power "necessa
ry and proper" for effectuating that authority;
and therefore — a house being indispensable
to the existence of a post office^ — whether a
house shall be rented, or bought, or built, is a
question altogether of expediency, and not,
iu any degree, or in any case, a question of
power. So, too, as roads, and good roads, are indis
pensable to the effectual establishment of post
roads, the supreme power "to establish post
roads" necessarily includes the power to make,
repair and preserve such roads as raay be
suitable for the most speedy, certain and effect
ual transportations of the mails, in coaches or
otherwise, as may be best for fulfilling the
ends of the very important national power
"to establish post offices and post roads."
And consequentiy, whether Congress shall, in
a special instance, constmct a post road, or
appropriate money for constructing one, or
whether it shall adopt a road already made
under the State authority, and use it as it is,
and as the people of the State use it; or wheth
er, after making a road or adopting an existing
road. Congress shall repair and improve it, or
contribute to those objects when the national
interests require the reparation and improve
ment of it, or shall depend entirely on the will
and judgment, purse and labor of the State, or
of any portion of the people of the' State — are
all questions of expediency merely, and, in
our judgment, neither of them can ever be a
question of constitutional right.
47

If It be the interest of the United States to
cany the mail m stage coaches, directiy from
one point to another, between which there is
an interjacent wilderness, without auy road or
a sufficient road, cannot Congi-ess open a road?
If it cannot, theu it has not power "to estabUsh
post pffices and ppst roads'' wherever the
public interest requires, or in the manner most
advantageous. If, after a State road shall have been adopted
as a post road for the transportation of the
mail in coaches, it shall have been rendered
unfit for such use, in consequence chiefly of
dilapidations effected by transporting the mail
upon it, cannpt Congress repair the damage it
had dene? Or, if the State fail pr refuse to
keep the road in a suitable condition for such
public use, may not, ought not, must not, the
general government preserve it, so as to be
able to use it advantageously as a post road?
Or if, on an important post route, where the
mail is caiTied in coaches, a bridge should be
necessai'y to the safety and proper celerity and
certainty of transportation, and the State fail
or refuse to make any bridge, may not, should ,
not, Congress have one made, and appropriate
the money required for constmcting and pre
serving it? A negative answer to either of
these questions would necessarily imply that
Congress cannot "establish post roads" in the
only true and effectual sense; for, "to establish
a post road," in the most restricted sense, isto
designate, keep and preserve such roads for
post roads as the public good shall require.
If, after a State road shaU have been adopted
or established as a post road, the State discon
tinue it as a State road, wiU it not still be a
post road as long as the law establishing it as
such shall reraain unrepealed? If not, then a
State can control the general govemment in
the establishment of post roads, and by the
occlusion of a road constitutionally established
as a post road, may destroy it, and in effect,
repeal the law by which it was established.
This cannot be; for if Congress had power to
establish the road as a post road, it must have
the power to keep it open and use it; because
the law by which it was established, must be
the supreme law of the land, and should
operate as such until it shall have been re
voked by Congress. Then, in the event of a
discontinuance of the road by the State, may
not the United States still continue it as a post
road? And, in the event of an actual occlu
sion by the State, has Congress no power to
re-open it, and keep it open and fit for use as
a post road?
These questions are, we think, too plain for
grave debate or serious doubt.
But, if Congress can thus reconstruct or re
pair a road for a post road, its power to make
one de novo cannot be consistently doubted.
Then it must, as we think, be admitted that
there may be cases in which Congress has the
constitutional authority to repair, reconstruct,
and even make, roads for post roads.
But if the power exist many case, it must
exist in every case in which a post road, is
necessary or is established.

370

DICKEY vs. TURNPIKE COMPANY.

Power and the expediency of exercising it,
are obviously distinct and essentially inde
pendent things. The inexpediency of an act
of Congress does not prove that it is uncon
stitutional; nor can its expediency prove its
constitutionality. A declaration of war
against England raight, at this time, or possi
bly at any tirae, be unjust and irapolitic; but
the constitutional authority of Congress to de
clare war, now or at any one time, against
England or any other nation, whether with or
wiwiout sufficient cause, is express and un
doubted. It might, and doubtless would, be
essentially inexpedient for Congress to abolish
slavery in the District of Columbia; but,
having full and exclusive legislative authority
over that distiict, it may nevertheless be true
that Congress has power to enact that there
shall be no slavery there.
It raight eveu uoav, in the opiuion of many
persons, and possibly raay, at some future day,
m the judgraent of a raajority of the people of
the United States and of Congress, be expe
dient to abolish slavery in all the States.
But, nevertheless, no rational mind could doubt
that Congress has nopower to legislate on that
subject. It may be inexpedient to establish a post office
at a particular place, but the powerto establish
one at any place in the United -States, is un
questionable. So, top, where there is a good
State road, sufficient for every proper purpose
as a post road, Congress Ayould doubtles con
sider it mere expedient to adopt such a road
thau to make a neAV one; and, if the State
should choose to keep the road in good and
suitable condition, without claiming any con
tribution from the United States, or exacting
any compensation for thc use of it as a post
road, an appropriation of money by the gen
eral govemment, for aiding the preservation of
the road, lioAvever just it Avonld be, raight be
deemed by Congress unnecssary and inexpe
dient. But the power to raake or repair thc
road should not, therefore, be denied or
questioned.

All the powers over post, offices and post
roads which the States ever possessed, have
been wisely transferred, as one indivisible na
tional power, to the general government,
which now possesses, of course, all the author
ity, in that respect, which all the people of all
the States, either aggregately or in seperate
State sovereignties, could possess and delegate.
And under the plenary power to establish ppst
roads. Congress must, therefore, have as much
right to make aud repair roads as the States
ever had, for the purposo of having suitable
post roads. The consent of a State is not in
dispensable; for, if the cpnstitutipn give tho
pewer, it exists Avithput the cpucurrenco pf
any State; and if the cpustitution did not del
egate the power to Congress, the consent of a
State, er of all the States, could not give it
AMithout an amendment of that national charter,
from which alone Congress derives or can de
rive legislative authority.

And, if the power to make or repair post
joads, be not express, but be only implied, the
question Avhcthcr it exist in a given case, docs
not depend on that of the expediency or inexr
pediency of exercising it. An implied power,
in the proper political sense, is a right to use'
a suitable^mcanfor effectuating the end of some
express power. And consequently, the ques
tion Avhether a power, not expressly given, is
iraplied, dees not depend, either ou the expe
diency of exercising it, orthe usefulness of the
end te be accpmplished by exercising it; but
depends altpgether pn whether the thmg dene
pr tobe done be necessary and proper asaraean
for effecting the end of any power expressly
given to thc general govemment. Thus, if a
National Bank be a suitable agent for carrying
into complete effect any one power expressly
delegated to the general goverment, aud if, as a
mean for that purpose, it ivould have an ob
vious relation to the end of any such power,
and be adapted to the fulfillment of that end,
Congress undoubtedly has the iraplied or in
cidental poAvcr to establish such an institution.
But if, AA-hen established, it would have no re
lation, as a raean to such an end. Congress
could have iipppAvcr to establish it — however
expedient or salutary it raight be adraitted to
be in its influence on the enterprizc and busi
ness of the people of the United States.
Wherefore, avc conclude that, as it must be
admitted that, in some cases Avhich raight oc
cur, Congress has express power to make and
repair post roads, the question Avhether it
should make or repair any or every post road,
is one pf policy and uot of pPAver; and that,
therefpre, it has express ppAver te make and
repair ppst rpads, Avhenever it shall deem such
a course useful and proper.
If the power to establish post roads should
even be restricted to the designation and con
tinuance of roads, thc poAver to remove obstruc
tions, re-open the roads Avhen closed, and re
pair thera when repairs are necessary, so as to
secure a proper and advantageous use of them

as ppst roads, as long as Congress shall choose
to continue them as such, cannot, as avc think,
and have before suggested, be doubted by any
considerate and dispassionate mind. And the
power to keep, as a post road, any road once
established as such, and re-open and repair it,
is but the poAver to make a ppst rpad.
But if the ppAvers we have been censidering,
be not such as should bo deemed express, avo are
clearly ofthe opinipu that thoy are all implied.
No person, se far as Ave knpAv or believe,
npw denies thc existence of implied poAvers in
the general government. The federal cpnsti
tutipn itself shPAVs that such ppwers Avere cpu-
teraplated by those Avhp adopted it; for it ex
pressly declares that Congress ShaU have
poAver "to make all laws which shall be ne
cessary and proper for carrying into execution"
the ppAvei's expressly delegated to the govern
ment of the United States; and the first
amendment adopted by the people necessarily

DICKEY vs. TURNPIKE COMPANY.

371

concedes the existence of iraplied poAvers; be
cause it interdicts acts of congressional legis
lation for Avhich there Avas no express grant of
poAver, and AA'hich, therefore, must haA'e been
considered as having been autiiorized by inci
dental or resulting poAvers.
But, without either of these coneessipus pf
implied ppwers, such pcAvers Avould have ex
isted to as great an extent precisely as thoy do
now exist; for it is a self-eAident truth, that
an express and uuqualified power to do a thing,
necessarily implies the power to use all the ne
cessary and proper ineans for doing it effcctu-
aUy; that is, such means as Avill effect the end of
the exjiress grant, aud are neither incpnsistent
with the objectef the grant, nor have been pro
hibited. The cpnstitutipn only designates cer
tain general ends, and expressly confers only
certain cpmprehensive ppwers. Subsidiary ppw
ers are implied and could nothave been enume
rated. All ppwers necessary and preper fer
executing the enuraerated pPAA'ers, erfpr fulfil-
Img the duties imppsed by the cpustitution,
are implied, aud exist as certainly as if they
had been expressly given — excepting so far
pnly as they shall have been prohibited.
Between the strict constructionist and the
latitudinariau, there is uo dispute as to the
general fact that implied powers exist. The
only difference of opinion among rational raen,
is that wliich exists respecting the true test for
ascertaining Ayhen a poAver is implied, andthat
also, which must ever exist concerning the
extent pf implied poAvcrs. All admit tliat
there is implied poAver to adopt any mean that
is "necessary and proper" for effecting the
end of any express poAvcr. But enlightened
men disagree as to Avhat is "neiiessary and
proper," and also as to the kind or degree of
necessity which must exist before poAver avIU
be implied.
But if poAver to adopt a particular mean for
attaining the end of sorae express poAvcr,
should not be implied unless that mean he in
dispensable — that is, unless tiie express poAver
cannct otherwise be executed; — theu it is de
monstrable that there can be no implied poAver;
for it is evident that suitable or effectual
means for executing every express grant of
power, arc various, and of almost infinite mod
ifications; and, therefpre, np single mean can
be deemed indispensable, because thc ppAver
may be executed by spmc Pther mean. But,
altiipugh UP one mean alene can ho deenied
indispensable, yet, as no end can be uccora-
pUshed without some means, nil the means
which are adapted to an end, and Avill effec-
tiiato it, are necessary, and each is equally.
and iu thesame sense, necessary. And there
fore, if any one of thera be constitutional, any
other of them must be equally so, unless it be
prphibitedby the cpustitution, or be subversive
of some fundamental principle, and therefore
Avould not be "proper" as Avell as necessary.
And, pf course, in choosing between "proper"
means, thus equally necessary in the political

sense, the question is oue of expediency only,
and uot of poAver. This is illustrated by prac
tical proofs abundantly furnished in the history
of national legislation, every year since the
commencement of the federal government.
Then, as a road can neither be made nor pre
served fit for use, without labor or money, and
generally both — cau it be doubted that, in
fully and effectually executing thc express
trust of establishing post roads. Congress may
have the iraplied power tp apprppriate mpney
to construct, or help to construct, and tP repair,
pr aid in repairing, a ppst rpad? or to pay a
just compensation for using and impairing a
road made and repaired by State authority and
State raeans alone? This should certainly
net be dpubted by auy, except such perspns as
could deny that the power "to establish post
offices and post roads" embraces the power to
superintend and regulate the raail, and to do,
also, whatever may be "necessary and proper"
for securing the transportation of it, as dis-
tribiitively, cheaply, speedily, and safely, as
the public interest may require. It cannot,
surely, be seriously doubted by any person
who admits that, under the power "to estab
lish post offices and post roads," the general
government may appoint postmasters, make
contracts for carrying the mail, on horses, or
in coaches, or iu steamboats, require the citi
zen to pay postage, and punish hira, "even
unto death," for obstructing or robbing the mail.
By the comprehensive poAver "to establish
post offices and post rpads," the pepple who
adopted the federal cpnstitutipn intended to
give to the natioual Congress all the power
necessary for cpntrplliujj^ the entire mail es
tablishment pf thc Unipii, in siicli a maimer as
most certainly to effectuate the end for which
the general poAver Avas delegated; and , that
Avas, the prompt, punctual, and certain distri
bution of intelligence, Avithout any of the in
conveniences, obstructions or delays, that might
be apprehended from discordant and inefficient
State regulations, or frora any dependence on
State authority or State Avill. Aud therefore,
as the general, and not any State govemraeut, is
responsible for the faithful and satisfactcry
exccutipii of this iraportant trust, and must, of
course, possess, not only the exclusive right
to decide as to the best modes pf fulfilling it,
Init supreme poAver to provide aud enforce the
roipiisite means for attaining the general end,
it must havo tiie authority to judge whether
the road.'i in any ,State are suitable or sufficient
for proper post roads; and if, in its judgment,
there be, anyAvhere, any deficiency of road facil
ity, it must have the impUedpoAver to supply
the deficiency, either by constraction, re-con
struction, or reparation, as it shall consider
most expedient.
A State cannot claim the right to decide
Avhether she has all the reads Avhich the gen
eral gpvernment needs for transporting the
mails; nor Avhether all her roads are in a suit- .
I able conditieu for post roads; nor can the

S72

DICKEY TS. TURNPIKE COMPANY.

general govemment be required to depend
altogether on any State for the reparation or
preservation of post roads; for, in those re
spects, the States, having retained no power,
can claim the right to exercise none.
The prevailing practice of the general gov
emmeut has been to adopt State roads as it
finds them; to use them as the people of the
State use them; and to leave to them, uot only
the whole burthen of making and repairing all
roads, but the discretion to decide hoAV and when
such as have been established as post roads
shall be repaired, improved, altered, and
changed. This , may he expedient iu many,
perhaps most, instances. But it is ofteu un
just to the several States, and may be essen
tially prejudicial to the interests pf the United
States. When a read is dilapidated by the
use made pf it by the general gpvernment,
it would be right fpr that gpvernment tp
repair the injury it had dene; ppwer tp dp such
justice cannpt surely be denied; and when a
ppst road is not kept, by State authority and
State means, in such a condition as the inter
est of the United States requires that it should
be kept, for the most effectual transportatipn
pf the mail, the general gpvernment should,
with its own means, improve and preserve it
as it should be iraproved and preserved.
Every post road is a national road. So far
as it is a post road, it is as national as the
Chesapeake Bay, or the Mississippi river; be
cause, so far as it is such a road, the people of
all the States have an interest in it; and there
fpre, tp that extent, it is undoubtedly a United
States road, and may, of course, be repaired
and improved by the United States.
By the articles of confederation, as before
suggested, the Confederate Congress had ex
press and exclusive power "to establish post
offices;" but, as it possessed no implied poAve'r,
it had no autiiority to "establish post roads."
Ncvertheleis the confederation appointed post
masters, established post offices, superintended
and directed the entire mail of all the States,
and used, without queston or complaint, the
State roads, just as they have beeu generally
used since the adoption of the federal consti
tution. But, notwithstanding this practical
interpretation of the power "to establish post
offices," the Federal Convention, and the
people who ratffied the constitution proposed
hy it, felt that the power "to establish post
offices" was not sufficiently araple; and there
fore, they added the auxiliary poAver, also,
"to establish post roads." This histpric fact
alone tends directly and persuasively to show
that the power "to establish ppst rpads" was
intended te include mere than au autherity
merely to designate post routes; fer PtherAvise
— as that autherity had been possessed and
exercised under the iselated power "to estab
lish post offices" — there was up motive for
superadding the express poAver to establish
"post roads."

We cannot, therefore, resist the conclusion
that the power to establish post roads-is some-t
thing more than the power "to establish pos
offices;" that the former is, as to post roads,
as plenary and supreme as the latter cau be as
to post offices; that both tpgether were under-
stppd and intended tP embrace everything ne
cessary and prpper for regulating and trans
porting the mails of the United States in such
a manner as the national Congress should
deem best, and choose to provide fpr and pre
scribe; that consequently, Ccngress must have
at least implied ppwer tp make, improve, and
repair post rpads, whenever and wherever it
shall cpnsider such a course necessary and
proper; and, u fortiori, the implied or rather
the resulting power to appropriate mpney tp
any pf thpse natiunal purppses.
Cpugress has net, fpr obvipus reasens, es
tablished the habit pf either making or repair
ing, or pf apprppriating money to make or re
pair, post roads; neither has it established the
habit of even designating the roads ou which
the mail .shall be carried. But the general
practice is no proof as to the constitutional
power of Congress in the one case more than
in the other. Notwithstanding the habitual
failure to designate post roads, the power to
do so is unquestioned; and notwithstanding
the habitual forbearance to make or repair, or
appropriate money to raake or repair, post
roads, the power to do each and all of these
things is, as we with equal confidence believe,
clearly implied, if not expressed. And we
have no doubt that many losses, disappoint
ments and vexations have occurred iu the mail
departraent and to the people in consequence
of the failure by congress to pro^ride such post
roads, and iraprove and repair them in such a
manner as the nature and object of the trust
confided to it by the constitution authorized
and required; and Ave have as little doubt that
the making of a good post road in a State, or
appropriation of raouey to make or improve, or
aid iu raaking or improving, a post road, by
the general government could never be inju
rious to the State.
Congress has not adopted the practice of
buUding and keeping federal prisons aud
court houses in the several States, because the
liberal comity of the States has sufficiently
supplied the general goverment with the use
of those necessary appendages to the national
judiciary. But who can doubt the poAver of
Congress to build and to keep a federal court
house aud jail in every State in the Union?
The power to appropriate the money of the
United States to the purpose pf meeting any
pf the demands pf the general government,
or of executing fully and most effectually, any
trust confided tp it, oanupt be dPubted. In
deed, it raight be admitted that every gevern
ment, as an artificial perspn, may, like a natu
ral perspn, have an inherent orresulting pewer
to dispose of its oavu money in any way not
I prohibited by the organic law ofits bejng,nor

MCKBY TS. TURNPIKE COMPANY.

37S

inconsistent with the end of its creation.
And surely there is no such limitation, ex
press or implied, upon the power to appropri
ate the money of the United States, as could
prevent the application of it judiciously to the
purpose of facilitating the proper and expe
ditious transporsations of the national mails.
Can any rational and consistent man, who
clairas for the general governraent the harsh
and ultra poAver to use ad libitum the roads pf
a State, Avithput either cpmpensatipu tp, pr
cpnsent by, the State, deny or doubt that
Congress has poAver to appropriate money
to make, or to repair, or to pay for the use of,
public roads in a State, used or to be used as
post roads? We cannot believe that any such
suicidal inconsistency will ever be exhibited
by many national statesmen or jurists.
But the poAver to pay for the use of a State
road necessarily implies power to appropriate
money to repair, or even make, post roads.
Had either of the States been alone interest
ed in the mails within their respective borders,
the power to establish post offices and post
roads would never have been given to the Con
gress of the United States. But, the mail
being international, all ppwer ever it and ever
all means necessary aud proper for raaking it
most effectual, Avas therefore transferred to the
councils of all the States united into one cora
mon govemment for purposes coraraon to all.
And, all power over the mail, and over post
roads, has been thus surrendered to the gene
ral govemment, and as all the pepple pf all
the States have an interest in the executipu of
that ppwer in each State, there can, iu cur
opinion, be no semblance of eitheir justice or
authority for a pretension by the national gov
emraeut to a constitutional right, either to re
quire a State to raake or repair post roads
with its own labor or money, without any as
sistance or retribution from the other States;
or, in every instance, to defer to the several
States the discretion of having good or bad
post roads, as their parsimony or liberality,
poverty or caprice, raay happen to prevail, and
thus virtually to surrender tP them individually
this impprtant natipual trust.
It may be generally best fpr the general
gpvemraent to avail itself of the use of State
roads in such condition as thc State raay be
pleased to keep them, and upon such terras as
they shall choose to prescribe. So, too, and
more obviously and generally, it may be best
for the general government to use, in the like
manner, the jails and court houses of the sev
eral States. Bnt the power, in each class of
cases, to execute the national trusts, independ-
entiy'of State provision or State consent, is
equally unquestionable; and, in case of post
roads, the occasional exercise of that poAver
Avould doubtiess be, not only just, but greatly
advantageous. Where there shall not be, in
every respect, a suitable post road, it is, in
our opinion, the duty of the general goyern
ment to employ all the means which shall be

necessary and proper for securing such a road
as the public interest demands. But if it AviU
not do sO, or when it chooses fo repOSe en
State authority, and rely on State expenditure,
it must use roads as it finds them, and cannot
claim privileges to Avhich the people of the
States are not themselves entitled; and if a
uniform and general toll be exacted. Congress
cannot complain that its authority had been
resisted, or in any degree, impaired.
We therefore conclude,^)'s( — that the power
to establish post roads Avas given for the pur
pose of enabling the general government to
make, and repair, aud keep open, and iraprove,
post roads, whenever the exercise of any such
independent, national power shall be deemed
proper for effectuating the satisfactory trans
portations of the mails; second — that it was
not given for the purpose of authorizing Con
gress to adopt and use State roads as post
roads, withoutany compensation, if any should
be just, and should be deraanded; third — that,
so far as the designation and use of any State
road as a ppst rpute, may be concerned, the
power to establish post roads cannot import
more than the precedent poAver to establish
post offices, and transport the mails — except
ing only, that the one implies only a right of
use, upon just and coraraon terms, as long
only as a State shall choose to continne a road
as a State road, and the other may imply a
right in Congress, not only to enjoy a like use,
but to continue, as a post route, a road once
adopted or designated or established as a post
road, even after it shall have been discontin
ued as a State road; fourth — that, unless
Congress shall elect to exert its right of emi
nent domain, and buy a State road, or raake
one, or help to make or repair it, the coustitu
tion gives no authority to use it as a post road,
without the consent of the State or OAvner, or
without making a just compensation for the
use; and, fifth — that therefore, even if the
Lexington and Maysville turnpike should be
deemed a public State road in all respects,
and if Dickey, as mail contractor, has a right
to transport the raail on any public road he
may prefer or choose to adopt between Lex
ington and Maysville, he cannot do so, npr
had Cpugress ppAver to authorize him to do so,
without paying for the use, if demanded, a
just cpmpensatipu, and that is — prima facie at
least — Avhat Pther persons are required to pay
fpr a similar use of it.
After refusing, as it did, by the President's
veto, to contribute any thing to the cpnstruc-
tion of the Maysville and Lexington turnpike,
the general governraent could not, Avith any
semblance of cpnsistency, justice, pr grace,
claim the right tP use and impair it, by carry
ing the mail upon it, in coaches, Avithout paying
to those who did make it Avith thier OAvn
private means, as much for the use and dilapi
dation of it as they have a legal right to ex
act and do receive, Avithout objectien, frpm

374

DICKEY vs. TURNPIKE COMPANY.

all others who enjoy the use of it, by travel
ling upon it in carriages.
Wherefore, as, in every view avc have taken
of this case, no poiver of the general govern
raent has been either exercised, or resisted, or
defied^t ,is clearly our ppinipu that Dickey,
as mail cpntractor, can, as a raatter of right,
use the Lexington and Maysville turnpike

road only as others have a right to use it; and
that, therefore, he raay be, justly and consti
tutionally, compelled to pay the prescribed
toll for such use as he shall elect to make of
it for his OAvn advantage and convenience.
It is therefore considered, that the judgment
of the Circuit Court against the appellant be
affirmed.

SUPREME COURT, U.S.

RUSSELL 1
vs. > Appellants's Brief.
SOUTHARD )

GUbert C. Russell, once a Colonel in the
army of the United States, bought from Dr.
John Floyd, of Virginia, a tract of land near
the city of Louisville, Kentucky for the con
sideration of $12,960 ; and on the 22nd of
May, 1826, Floyd and his wife conveyed to
Russell the legal title to the land described as
containing 216 acres — See bill, p. .5, of printed
Record ; Floyd's deed, p. 12, and deposition
of R.Smith, p. 24S.
As it was not then conveuient for Russell to
reside on the land thus bought, he placed on
it J. W. Wing, as his agent and manager. On
revisiting Louisville in September, 1827, from
his residence in Alabama, Russell ascertained
that Wing had incurred debts Which could
not then be paid otherwise than by borrowing
money or selling the farm : — and his desire to
raise, in one mode or the other, a fund suffi- !
cient for paying those debts, beingmade known
he was offered $10,000 for his laud in real es-
state in HuntsviUe, Alabaraa — See the deposi
tion of C. Talbot, p. 186. But, unwilling to
accede to that offer for a purchase, Russell,
thus unexpectly pressed for money far from,
home, made an arrangement with James
Southard, of Louisville, Avhereby he obtained
from Southard an advance of $2,000, (the sum
he needed,) and also took an equitable assign
ment of two clairas of doubtful value then in
litigation — one on Dr. Johnson for $1,270 94,
and the other on S. M. Brown for $1,558 87}^;
each of which Southard carefully assigned to
hira without recourse, and exacted from hira
an acknowledgment of the receipt of $4,929
81, in "coin" of the United States. Russell's
interpretation of this arrangeraent was, that
it was a loan to be secured by a mortgage on
the land he had purchased from Floyd; which
he considered as effectuated by a conveyance
signed by him ou the 24th of September, 1827,
purporting to be absolute on its face — See p.
14-15, and by a separate defeasance signed
both by RusseU aud Southard, of the same
date— See p. 172.

By a writing simultaneously executed by
Russell, he covenanted to procure his wife's
relinquishment of dower within four months
from that date; and covenanted that, inthe
event of a failure to do so, he would pay to
Southard $,3,000, "as liquidated damages for
that failure"— See p. 14.

On a subsequent visit to LouisvUle, in Oct.,
1830, Russell having discovered that the ag
gregate sum, to-wit: $4,829 82)^, acknowl'
edged to have been received frora Southard,
was $100 more than the amount actually or
or nominallv advanced; and, finding hiraself
disabled by misfortune from then repaying the
raoney he had;received,dcmanded ofSouthard
$100 so as to niake the sum nominally received
equal to that for which he conveyed the land.
Southard, after rauch diplomacy, finally paid
hira $100, and took frora him on the 6th of
October, 1830, a writing acknowledging the
payraent, for the purpose avowed by Russell,
and, "in full for all deraands."
James Southard took possession of the land
iramediately after the date of the written me-
raorials of the contract, and retained the pos-
' session untU his death in the year 1840, when,
by his will, his interest passed to his brother,
Daniel R. Southard, who was present at the
execution of the conveyance by Russell to his
testator, had owned one of the clairas assigned
to RusseU, and drew Ihe defeasance, as he
avers in his answer; Wordau Pope, a lawyer,
having, at the instance of Jaraes Southard,
drawn the absolute deed, and probably the
defeasance also, which was copied by D. R.
Southard. ,„,„ .„ „
On the 23d of September, 1847, Russell, as
a citizen of the State of Alabama, filed a bill
in chancery against D. R. Southard and others,
as citizens of Kentucky, iu the circuit court of
the United States for Kentucky, alledging,
among other things, that the contract between
J. Southard and himself was not a sale, but
only a raortgage for securing the repayment
of a loan; that the advance of the considera
tion recited in the Avritten memorials was a
loan; that the defeasance showedby its terms,
that the absolute conveyance was intended to
operate only as a raortgage; that D, R. South
ard had fraudulentiy procured aud still with
held from him the docuraent of defeasance;
that his (Russell's) erabarrassments had pre
vented a redemption; that both J. & D. R.
Southard had, ever since they had fraudu
lently obtained the receipt and tho possession
of the defeasance, persisted in the false and
fraudulent pretence that the contract was a
conditional sale and net a mortgage, <fec. <tc.,
and, after propounding to the defendant.
Southard, various interrogatories, concluding

376

sopRSMjB (sbma, e. s.

with a prayer for a decree for redemption on
equitable terms. ,
On the 7th of February, 1848, Southard filed
a long aud elaborate answer, in which he de
nied that the contract was, as alleged, a mort
gage to secure a loan, insisting that it was an
absolute sale, and averred that the defeasance
was not "contempleted" by the original con
tract, was not executed until some days after
the date of the conveyance, and was altogeth
er gratuitous ! and that his testator had, on
the 6th of October, 1830, for the consideration
of the sura of $100 then paid to Russell, fi
nally concluded all controversy concerning
the original contract; and lastly, pleaded the
lapse of tirae.
On the final hearing, the circuit court dis-
raissed the bill; and Russell has appealed to
this court for a revision and reversal of the de
cree. For reversing the decree, the counsel for the
appellant will endeavor to raaintain the fol
lowing propositions :
1st. 'fhat the contract, as made and ex
hibited. Was a mortgage ;
2d. That Russell has not, by any a ct he
has done, parted with his equity of redemp
tion ; and
3d. That his title to relief is not barred by
time. And, for establishing these positions in their
numerical order, the appellant's counsel re
spectfully submit, to the consideration of the
court, the following programrae of arguraent
as their Brief :
1. The considerations conducing to show
a mortgage are of two distinct classes : — 1 st.
Intrinsic. 2d. Extrinsic.
1 St. Intrinsic Evidence.
Thc defeasance was not, as pretended by
D. R. Southard, purely volunfary ; 1st. Be
cause, if, as its date and recitals iraport, it
was executed siraultaneously with the con
veyance', they are integral and essential consti
tuents of one entire contract; 2d. If the de
feasance was not forraally executed until a
day or days after the execution of the convey
ance, it was, nevertheless, prepared and sign
ed in fulfilment of the understanding of the
parties in making their original contract, and
a refusal to execute it would have been a reck
less fraud, against the meditated effect of
Avhich there raight have been relief; Maxwell
vs.Montacute, Prec'hy 526— Walker vs. Walk
er, 2. AtKins 99.
This' appears clearly frOm the deposition of
Dr. Johnson, (see his answer p. 210 question
3rd) which ' is fortified by the bungling and
incredible anSAver of D. R. Southard — aud is
made indisput%ble bythe strong and almost
conclusive irapr&bability that such a man as
J. Southard would voluntarily have given such
a defeasance, after au absolute purchase in
good faith, of such a tract of land, for a price
so glaringly inadequate.
Then starting, as wo think we have a right
to do, with the postulate, that the conveyance
and the defeasance are parts of one indivisi
ble conti'act, just as if the defeasance hadbeen

inserted in the conveyance, we insist that, en
the face pf these decuments alone, the law
construes them as constituting a memorial of
a contract of a loan by Southard, and of mort
gage by Russell.
1. 'When an absolute conveyance is coupled
with a defeasance, the law inclines to con
strue the contract as a mortgage, rather than a
con^tional sale or a defeasable purchase- -
this is the dictum of every treatise on the
equitable doctrine of mortgages — Sparsim —
see also Bloodgood vs. Zigly 2 Caine's cases
— 124 Longuet vs. Scaven 1. viz sr. 406 — New-
comb vs. Bonhara 1st. Vernon 7 — Manlove,
vs. Bale & Bruton 2nd. lb. 83. Chapman's
ad'r vs. Turne 1 call 244. Robertson vs.
Carapbell 2ud. lb. S53. Ross vs. Norvell 1 .
Washington 14 — King vs. Newraan 3. Munf'd
40. Thorapson vs. Davenport 1. Washington
125. Robert's ad'r vs. Cox 1. Rand— 121.
Pennington vs. Hanby et al 4 Munf'd 140.
Wilson vs. Carven 4. Haywood 93. — Haltier
Vs.Elinaud2 Dess— 571. 'Wharf vs. HoweU
5. Binney 499. Dey vs. Duncomb 2. John
son's chy R. 189. Blaney vs. Bearce vs. Grant
R. 132. Harrisen vs. Trustees of Philip's
Acaderay 12 Mass. R. 457. Erskine vs. Towns-
end 2 Io 475. Taylor vs. Weld 5 lb 100.
Carey vs. Rawson 8 lb 159 Brown vs. Bement
8th. Johnson R. 150. Patterson Vs. Clark 15.
lb. 205. Skinner vs. MiUer 5. Litt R. 86—
Heytie vs. Logan 1. A. K. Marshall p. 629. Ed-
rington vs. Harper 3. 1 I. M. 354 — Morris vs.
Nixon 1. Howard — Livingston vs. Story 9th
and 11 Peters.
Some of these cases expressly, and most of
them virtuaUy decide that a writing or wri
tings, importing an absolute sale with a power
of defeasance — nothing else appearing — imply
a raortgage — whatever may be the form or
terms of the contract ; and that, in all such
cases, the burthen of proof aliunde devolves
on the party claiming a conditional or defeas
able purchase. Coote, in this treatise on mort
gages, 16th Vol. Law Lib. p. 13, considering
the authorities as to the recognition and validi-
lyof defeasable purchases confused and doubt
ful, notices the case of Floyer vs. Livingston
1. Pr. Wme. 268— aud that of MiUervs. Lees
2. Atkins 494, soraetiraes cited in support of
such contracts, and not only Shows that Ld.
Hardwicke confined such constructive sale to
a rent charge, and repudiated it as to the fee
in the land itself, but intiraated that these two
cases were decided on lapse of tirae and other
peculiar circumstances, and not on the simple
fact of an absolute conveyance and an accora-
panying defeasance.
If the general principle of construction, for
establishing which raost of the foregoing cases
are cited, should be overruled or disregarded
— as Deeds cannot be contradicted or explained
by oral testiraony, without proof of fraud,
mistake, or illegality, — rapacious moneylend
ers might, and often would, impose on neces
sitous borrowers defeasable purchases frora
which they could uever extricate their proper
ty by proof or by a precise compliance with
the prescribed terms. The principle, for which

SUPREME COURT, U. S'

377

We contend, seems-to us therefore tobe as just
and reasonable, as it is authoritative.
Thfe fact that there is in this case no express
promise by Russell to pay the $4,929 813.< to
Southard, is not sufficient per se to overrule
the prima facie iroplicatiou of a mortgage. A
contract, we admit, cannot be a mortgage, as
to one of fhe pairties aud not as to the, otiier.
There must be mutuality in the right of one
to redeem, and of the other to foreclose and
make his debt.
But it is not necessary to the existence of a
mortgage that the reciprocal rights of the par
ties shall be coextensive — or that they should
run quatuor pedibus. It is sufficient that eaCh
party raay enforce the contract as a mortgage.
This the mortgagee may dp, although there is
neither an express, nor a collateral undertak
ing by the mortgagor to pay the debt to se
cure which the mortgage was raade.
This is shewn by many of the cases already
cited— see also WUcpx's heirs vs. Morris 1 .
Murphy 117— Conway's'Ex's vs. Alexander 7.
Cranch 218— Hart vs. Burton 7. J. J.Marshall
322— also Howell vs. Bice 1 Pr. Wira's 29U—
King vs. King 3, lb. 361— Powell on raoit-
gages p. 16— where in a note Mr._ Coventry,
says—" a Bond and Covenant are said to be of
no use if the estate be araple."
Considering, as the court will, the convey
ance and defeasance as one entire document,
tiie contract should be interpreted precisely
as it would have been had both documents
been incorporated in the usual style, begin
ning with- an absolute conveyance and con
cluding with a cpnditipn which might entitle -
the cenveyor to a re-cpnveyance. And, thufe
con'sidered, the entire memprial pf the centract
imports that Southard had advanced to Rus
seU a consideration estimated at $4,929 Slj4
—for which the latter had conveyed, to the
forraer a certain tract of land— the parties in
tending thereby that the one might use the
money, and the other enjoy the land for four
months, and that, on payment of the, money
with interest, within that time, the- fand should
be re-conveyed. J,s not this, in its constructive
effect, a mortgage? Notwithstanding the elab
orate effort of the Southards, and their Law,
yersto give'it the semblance of an absolute
sale, and a conditional repurchase, does it not,
in its substance import that the land Avas
conveyed to secure the payment of the consid
eration advanced ? , , . .
Does it not amount, after aU the ingenious
elaboration of disguises, to a loan on one side
and a collateral security on, the other ?
It is settled by many of the foregoing au
thorities that, whatever may be the form or
the words of a conveyance, it wiUbe constiued
a mortgage if designed or given as a security,
or for the purpose of coercing or securing a
payment. The form is not essential-the
intent is the vital spirit which fixes the cha
racter of the thing. CaUing a contract
a conditional sale does not raake it so.
Extraordinarv efforts to give it that complex
ion are even evidence tending, and soraetiines
stirongly, to shew that it was intended, by the
48

other party, as a mortgage. In this case such
efforts appear on the face of the papers. Look
at the superfluous repetitions, aud redundant
adjectives — such as "absolutely conveyed" —
"this agreement shall be at an end and null and
void" — " this agreement of resale, is condi
tional and Avithout a valuable consideration !"
— "and entirely dependent Ac," — " and this
agreement, is to be valid and obligatory only,
upon the said Jaraes Southard, upon the punc
tual payment, (fee."
What raptive prprapted all this superfluity
and ta'utplpgy ? It Avas neither necessary npr
useful, forany other purpose thau to disguise
or distort the real contract, as intended and
understpod by Russell. It is like inserting
in a contract the declaration — " this is bona
fide, no fraud, is intended;" .and Avhich is, itself
a significant badge of fraud, indicating that
the party was thinking of fraud, and trying tb
conceal it; and, in this case, Southard's were
thinking of a mprtgage- and trying to elude it.
The provision, in thedefeasance, for the re
linquishment of Dower, should not have any
effect on the construction of the contract.
Such relinquishment was as proper in the case
of mortgage; as in that of a sale — and had been
amply secured by the covenant already noticed
with its liquidated damages.
Then stripped of all artifice and studied
drapery, what is the contract, properly con
sidered in its own nakedness ? Is it not an
entire agreement lo convey land, on the ad
vance of a certain sum, and to re-convey the
same land on the return of that sum with ac
cruing interest within a prescribed time ?
And, according to reason, as Avell as the cita
tions already made, is not such an agreement
prima facie to be deemed a raortgage for secur
ing the repayment of the raoney advanced ?
If the land, as is the fact, was worth raore
than the money, there was no motive for tak
ing a bond or express promise to pay it^and
such an undertaking, was doubtiess, not ex
acted' by Southard, because it was unneces
sary, and if made, would have been a strong
badge of a mortgage. The omission of it raay
be evidence of a fraudulent design, but cannot
operate as decisive proof of a bona fide sale,
instead of a mortgage. This is proved by
many of the cases herein before cited.
It is difficult to make such an entire con
tract for a conveyance and a conditional re
conveyance, as will or ought to be construed
a sale, and not a security, (see especially
Longuet vs. Scaven, Supra.) And, when
there is nothing else bnt an absolute convey
ance in form, on the advance of mon,ey, and a
covenant to reconvey on no other coudition
than the payraent of the same sum with in
terest we doubt whether there is any adjudg
ed case, now entitied to respectful considera
tion in which it has been decided that the
contract was not intended as a security. Such
we consider the modern and more rational
doctrine— as most of the foregoing authprities
cnnHiicp to shew — and as Coote intimates,
when he says:-(20fli L. Lib'y p. 17)-" the
circumstance of an agreement to reconvey.

378

SUPREME COURT, U. S.

although entered into at the time of the con
veyance, is not sufficient to convert the trans
action into a mprtgage, if there be evidence
to rebut the presumption," — which imports
that the fact, that the conveyance and the'
agreement to reconvey on the sole condition of
restitution of the consideration were made at
the same time, and were therefore constituent
elements of one entire contract, will create the
presumption, prima facie, that the transaction
was intended as mere security, or a mortgage
— and that consequently a court should decide
that the contract was a raortgage, unless the
party opposing that construction should rebut
thatj presumption. An additional reason for
that presumption, having already suggested
one, is thafa conveyance, for a certain sura,
and a defeasance on condition of paying it
back, import a loan — and if the consideration
be a loan, no mere form of contract cau make
the conveyance a conditional sale. The "evi
dence," to rebut the presumption of a raort
gage, raust therefore 'be such as to shew that
the consideration of the conveyance was not a
loan; nothing else will be sufficient. Thus,
in the case of Barrell vs. Sabine 1. Vernon
269 — the grounds on which the court decided
that the contract was not a mortgage, were
first that there was proof that the- original
agreement, which was some time afterwards
consumniated by a conveyance, was for a sale,
for a stipulated price; and that thferefore the
consideration was not advanced as a loan—
and secondly that the price, on the payment
of which Barrell covenanted to reconvey, con
siderably exceeded the Sura he had paid and
the interest thereon.
That case therefore, even if still recognized
as right, is no authority against our position.
And thus also it was decided by the court of
Appeals of Kentucky, that a covenant by a
purchaser under execution to convey the pro
perty so bought to the original owner, on the
payment of the purchase money and interest,
is not a raortgage — because these facts, alone,
show that there was no loan. But in Yoder
vs. Strandford 7, Monroe 480 — the same court
decided that " a fair purchaser at Sheriff's
Sale, under a contract with the deferidan t that
he raay redeem, holds as in mortgage'' — and
the reason is that the money was advanced on
a contract which contained a stipulation for
a reconveyance on the payment of the same
sum with interest. Nor can we doubt that in
Conway's Ex'r vs. Alexander, Supra, the court
would have construed the transaction between
the parties a raortgage, had not the party re
sisting that construction shown that the con
sideration was not a loan, but was paid on an
executory sale of land covenanted to be con
veyed to hira, and also proved other facts cor
roborating that deduction and shewing that a
redemption would be inevitable. In the case
of Heytel vs . Logan — supra — it appeared that
Logan refused to loan raoney to Heytel — but
consented for 3000 cash to be then paid to
iPurchase from him Town Lots, worth in
like payment something less thau $4000, pro
bably about $3800~thal, thereupon, Heytel

raade an absolute conveyance to Logan, who,
at the same time paid him $3000 in money,
and gave him a written privilege to repur
chase the property AVithin eleven months,' by
paying ,$3000.' There was no extraneous
proof Nevertheless the court of Appeals of
Xentucky, on the face of these papers alone,
decided that the contract was a constructive
loan and mortgage, in the absence of any ex
trinsic evidence to the contrary. The reason
of that decision seems to have been—that, as
the proi3erty conveyed -was worth more than
the amount advanced by Logan, and was
therefore an indubitable security for it as a
loan, and as the reconveyance was to be made
on the payment of that sum and about 15
per cent interest thereon, it 'was altogether
probable that the form of a sale and condi
tional repurchase was givien to the contract, as
a contrivance to evade the law against usury
— andthat, on such factSj public policy, the
integrity of fhe laAv, and the safety of neces
sitous borrowers of money, required that the
contract should be construed a mortgage to se
cure a loan.
Whereupon we conclude that, as the land
was conveyed by Russell on an agreement
which bound Southard to reconvey it on the
payment, Within four months, of the amount
he had advanced, with legal interest, thereon,
the prima facie presumption is that the con
tract was a, raortgage — res ipsa loquitur. And
we think we are also authorised to, conclude
that Southard, bu whom the proof devolved,
has, failed to shew that his advance was not a
loan. On the contrary there are considerations
derived from ' the Writings, which fortify the
first ground just considered. The few cases
in which the courts pf Kentucky have recog
nised conditional sales, were decided on pecu
liar grounds, perfectly consistent with the
principles for which we are contending.
2. " Defeasance'' is inscribed on the head
of the collateral document, as the narae the
parties theraselves gave it. And does not this
import that the parties intended to defeat or
hold void the conveyance in the event of the
prescribed restitution of the amount advanced
and its interest ? And if they intended this, is
not their contract a mortgage ? Did not Rus
sell so understand it ?
3. The fact that Russell took more than
half of the consideration in debts of reraote and
uncertain availability, and agreed, as a con
dition of reconveyance to pay the nominal
amount and interest on it, before he could
hope to collect, if he ever could collect these
debts or either of them, shews that he was un
willing to sell absolutely his land for anything
like what he received from Southard, and
tends also, strongly to shew that Southard's
object was to convert those debts into money
without the trouble, risk, or expense of the
pending suits. All this implies a purpose in
directiy to borrow and lend at exorbitant in
terest, and which purpose it was important to
the usurer to conceal. By making his doubt
ful claims and his $2000 produce him, within
four months, their nominal amount in cash and

SUPREME COURT TJ. S.

S79

interest and the rent ef such a tract of land,
he speculated largely on tho necessities of
Russell. This sacrifice, Russell's condition
may have compelled him to encounter, and his
conduct, as exhibited on the face of the con
tract, indicates that hp intended nothing else,
or more than to loose the usury, to secure
which may be presumed to have been South
ard's chief aud controlling object.
4. Russell's covenant to procure his wife's
relinquishment, being an integral portion of
the contract of couAreyance, may be properly
considered in connexion with it, and as a pro
vision in it. It was allowable, and might
have been prudent for a mortgagee to require
a relinquishment of dower by the mortgagor's
wife. But why did Southard exact a covenant
to pay, ;as liquidated damages, which could
not be resisted or reduced, and prescribe an
amount, $3,000, nearly equal to the value of
aU he had advanced or was ever to advance
on the land ? Had he been an absolute pur
chaser in good faith, and had it been his only
object, as in that case it would probably have
been, to secure his title against the contingent
incumbrance of dower, he would net have re
quired, nor would Russell have given, any
such raonstrous covenant. But, if Russell's
understanding was, that he Avas only borrow
ing and giving a mortgage as security, he had
no strong motive of interest to induce him to
refuse to execute such a covenant, because he
knew that he could avoid it by redemption,
whenever he might redeem. And theonly con
sistent motive imputable to Southard is, that
hewishedtoadd another disguise to the trans
action, forge another chain for binding down
Russell, and, by holding up the $3,000 in ter-
roram, to increase his chances of keeping the
land for whathe had advanced, or possibly foi
less than half^of it, by recovering the $3,000.
For the reasons suggested in the foregoing
outiine, we submit to the court whether the
contract should not be deemed a mortgage
without the aid of the extraneous facts. Can
the artful effcrt of the Southards and their
lawyer, to give the "defeasance" tho name of a
"conditional sale," change the essential qual
ity and legal effect of the thing ? Every mort
gage literally purports to be a conditional sale.
Cap the false and fraudulent allegation in the
"defeasance," that it was voluntary and with
out consideration transmute the conveyance
into an absolute sale in good faith ? On the
contrary, does not this false and bungling ar
tifice rather expose a fraudulent design to
hide the truth by clothing the transaction with
a delusive dress ?
We consider the principle controlling the
cases in 2d Vernon, l5th Johnson, and 1 A.
K. M., and in many others, supra; as decisive
of the question involved in our first position.
The extraordinary character of the written
memorials tends to fortify, rather than repel,
the presumption of a security arising from the
fact that the conveyance was defeasable on
the return of the money advanced.
II. Should the court not concur in the fm'e-
gping cpuclusicn, we suggest the foUewing

ccnsiderations to show that a mortgage is es
tablished by Extrinsic facts.
Whatever may be the opinion of this court
as to the general admissibility of oral to explain
or contradict written evidence, all the mem
bers of it will concur in the competency of
^uch testimony whenever there is proof of mis
take or fraud in the execution of a writing, or
of illegality in the consideration or object of
the contract of which it purports to be a me
morial. To cite authorities to prove this po
sition, Avould be as superfluous as citations
for certifying the doctrine that^a purchaser,
with notice of a trust, must take the legal
title under a trust implied, in invitum.
In this case, not only usury, but both mis
take and fraud also raay be inferred from the
facts in the record. If the parties, by their
oral agreement, intended a loan, as we expect
to show, there was usui-y, because not only
were the two claims taken at par not worth so
much, but Southard reserved six per cent.
the legal rate of interest, on the whole nomi
nal amount of the advance, and the rent of
the farm also. There must, also, have been
both fraud and mistake in the execution of
the documents: Russell avers that the defeas
ance, by its terras, shewed a mortgage; which
is a virtual allegation that if its terras mani
fest a conditional sale, he did not understand it
and signed the writings under a mistake; and
such should be presumed to be the fact if he
thought he was borrowing; and the other par
ty, on that hypothesis, was guilty of fraud.
If, as we think they do, the allegations of the
bill amount to a charge of usury, fraud, or
mistake, a raore formal and direct imputation
of all or either of thera is not necessary.
Then, if the court should constme the con
tract, on the face of the documents, to be a
conditional sale, and not a mortgage, we sub
mit the following extraneous considerations
for shewing that the advance was made as a
loan; that the loan was illegal; that the me
morials were procured by fraud or mistake, or
both, though either usury, fraud or mistake
willbe enough; and consequently, that the
real contractiwas a raortgage, and no sale.
1. Russell had. only about sixteen months
before the date of his conveyance, bought the
farm for the purpose, as raay be presuraed, of
making it his ultimate residence, and had paid
for it in cash nearly three times as rauch as
the nominal sum advanced to him by South
ard. It is not probable, therefore, that he de
sired, so soon, to sell on any other condition,
or for any otijer purpose than to pay the debt
incurred by Wing in managing the farm one
year; nor even then, for that purpose, if he
could conveniently procure the money by a
loan. James Southard was a citizen and mer
chant of Louisville ; and was, probably, a
lender of money at usurious interest— See
HeinshaAv's dep'n,233; Farquar's, 244. And
men of that cast prefer loaning their money
at high interest to buying and cultivating
farms. Besides, Russell got only $2,000 in
money, or in means either entirely or immedi-
,ately available, and which could have served

380

SUPREME COURT, U. S.

scarcely any other purpose than that of paying
the farm debts — certainly not that of an ad
vantageous investment. This comparatively
small sum he could have borroAved without
doubt or difficulty, almost any where, by
mortgaging his land as a security.
2. D; R. Southard's answer is discredited
by reckless averments and studied evasions.
1. Suoh averments, p. 16^; defeasance 'never
"contemplated or intended before or at the
time of the sale and conveyance!'' Page 158
"After this transaction (the conveyance) was
fully completed, and an the following day, or
the day after that, the complainant expressed
to said James that he thought that he had sold
the farm for a smallprice, and urgently solicit
ed leave to repurchase il!" P. 161. "'Tjie price
given by him (J. S.) Avas about the fair value
of the property!" (although the same respond
ent afterwards insured the dwelling alone at
$7,000!) P. 158, "Theinstrument (defeasance)
was dated the day the deed and bond Avere in
order that the bond might not he forfeited
whilst the complainant should have the faculty
of repurchasing the land!" Page 160, (refer
ring to the $100 paid in 1830) he says, his
brother "was under no moral or equitable ob
ligation to pay it! " P. 163, alluding to the
two claims assigned to Russell, D. E. South
ard says, "Nor Avas either df them regarded
as desperate or doubtful!" (Then why was J.
Southard so careful in providing expressly
that Russell took both cladrns "without re
course, in any evunt Avhatever, to the said J.
Southard or his assignee D. R. Southard, and
(was) to take all risk of collection on himself,
andmake the best ofsaid claims he can (could!)'
3. Evasions. — Cpmpare answer 2, p. 162,
with questioii 2, p. IO4 in question 4, p. 10,
respondent is required to state Avhether tho
conveyance was not in a form the complainant
did not expect: his only ansAver to that is, that
"complainant did not intimate any objection
or'disappoiutment." Nevertheless, there is no
denial that respondent knew or had reason to
believe that the form Ayas not sueh as com
plainant had "expected." In question 5, p.
10, being asked if he doubted, at the date of
the contract, the repayment within the time
prescribed, he says, in effect, that, if rumor
had been true, and if he had believed that ru
mor, he Avould not have doubted! Is not this
strangely evasive, aud is it net a tacit admission
thathe did not dpubt thfe payment? And, then,
can the, court believe that such men yypuld,
without consideration, as a mere "gratutity,"
as D. E. Southard avers, have given the de
feasance after having, in good faith, acquired
the absolute title to land' AVorth three times
thc amount to. be repaid? In question 6, p.
11, the respondent is asked Avhat he had told
others he AVould have taken for the claims as -
signed to cpmplainant had he npt "made the
lucky hit of finding me (complainant) pressed
for money;" 'answer 6, p. 262, "non mi recor-
do" as to part, silence as to "the lucky hit" — ¦
thus virtually admitting that the claims were

considered doubtful as to value or availability.
In answer to the 8th interrpgatpry, p. II, he
says, p 1 63, he has ne recollection as to the law
yers, and is silent again as to others, thus,admit-
ting that h'e had been advised by 'other acquaint
ances" that, if he could get .the "defeasance,
Ayhich had not been recorded, his title wpuld
be complete." , WhyjAvas he so advised, aud
Avliy Avas he anxious to get it in, if there was
no mortgage'^
The answer is discredited, moreover, by
the character of D. R. Sputhard. See the
deppsitipus pf Kellar,p 224; pf Chambers, 225;
of Turner, 226; of Ferguson, ib.; pf Meri-
Avether, 227; of Harrison, ib.; of Stilwell, 228;
of Shaw, ib.; of Pope, 233; of SteAvartj 238.
And such an answer by such a man affords
strong intrinsic evidence that the contract
was, in fact, intended as a mere security for
tho amount advanced.
,4. There is as ranch proof as such a fact is
susceptible of, that Russell has ever under
stood his contract with Southard to be a mort
gage. 1st. His Bill: 2d. His claiming a right
to redeem, in tho year 1830, when he could
have had no pretence to such a right had he
understood tire contract as a conditional sale;
And 3d. Col. Woolley's deposition, p. 247.
, And there is evidenco, also, that Southard
Avas conscious that it Ayas Russell's intention
only to borroAv and secure the debt. 1. His
repeated and almost incessant, and rather tri
umphant, conversations Avitli liPyering pn the
the nice distinction betAveen a conditional sale
and a mortgage, the difficulty of Avriting a
contract of a conditional sale in suoh tei-ms as
to escape the construction of a mortgage, and
the skill of Worden Pope in that art, p. 205.
He seoms to haA'e enjoyed an omnipresent sort
of self-gratulation at the escape he then thought
he had made, from a mortgage through the
ambidexterity of the eulogized lawyer^ —
Whence this peculiar self-complacency and
loquacity, on that particular hobby, unless he
thought he had defrauded Russell out of his
land by palming on his necessities, confidence
and credulity, a sale in lieu of a loan? 2. The
I equivokes, falsehoods and evasions already
noticed in the answer of D. R. Southard. 3.
The facts proved by Dr. Wood; that Soiith-
"ard told him that he had "advanced betAA'een
$4,OG0and §5,000 upon that place, but in case
he OAvned, the pl.ice, it Avould cost him ,$lf),-
000;" and that he also told him, or, said in his
presence, that if a bill pending in the legisla
ture lor extending the city limits should be
come a laAV, "he AA'Ould make SlO,OUObyit,
for the farm he got from RuSsel cost him $10,-
000, and the passage of the bill would raise its
value to $20,000, and, if he had it disincura-
bared, he Avould nottake $20,000 for it.". The
abortive effort to discredit Dr. Wood's testi
mony should not effect its credibility, Avhich is
jAvell established by the concurrent testimony
ofthe folloAving persons who have knpwn hira
Ipug and intimately: Keasy, p. 239; HaU 241;

SUPREME COURT, TJ. S.

381

Gregory, 241; EUiot, 242; Farquer, 244.—
The fact that some persons say he was ence
intemperate, aud sometimes, in conversatipn,
talked recklessly and extravagantly, is insuf
ficient tp destrpy or materially afl'ect his cred
ibility on oath, Avhen testifying disinterestedly
to facts intrinsically probable aud AVhich are
not only not contradicted by any other Avitness,
but are corroborated by other circumstances
and proofs in the case. When all tli£ facts
are analyzed he is entitled to credence. He
told the truth.
5. Dr. Johnson, who attested the defeasance
and heard the conversation of the . parties at
that time cpncerning its ebjects, testifies (p.
210) that "My (his) understanding ef the
contract AA'as both from Southard and Russell;
and my distinct impression is, that Russell Avas
to pay the money in four months and take
back his farm." This cannot, by auy allow
able interpretation ef the language, be recpu-
ciled with the idea pf an absolute sale ou the
condition merely of a priAilege to repurchase;
considering the question he Avas answering, the
object of the querist, and the ppsition of the
Avitness, his response imports a mprtgage
clearly and inevitably. And, as he was se
lected by the parties as a witness of -their con
tract, his evidence alone ought to be conclu
sive. If the defeasance does not, 'as Avritten,
authprize the cpnstraction pf a security ins'tead
of a sale, then there could scarcely be a doubt
that Russell's signature was induced by mis
take, and also by fraud if Southard intended
that it should operate as CA-idence of a condi
tional sale. This testimony is fortified by the
fact that it harmonises with the understanding
of acquaintances of Southard and of some of
his family, as shewn by the depositions of
Doup, Longest and HaAves. . Doup says,
"About the year-1828. Bob Turner, a friend
and crony, as I considered him, pf James
Sputhard, told me that Southard had loaned
RusseU $5,000, for Avhich he tppk a qiprtgage
on the land."— p, 262. Longest proves that
Burks was desircus to buy the farm, but was
deterred by the belief that Russell had a right
to redeem it.— p. 203-4. And HaAves says
that, about the year 1839, "he heard seme one
say, that Southard held said farm in mortgage;
that RusseU Avas in difficulty, and Avhcn he
got through with his difficulties, he would sue
for it and recover it. AfterAvards, I asked
Southard's son abput it, and he tpld me sp tPP.'
NpAv,,thpugh the fact that a perscn who Avished
to purchase the land from Southard, another
Avho Avas a crpny of J. Southard, and another
who was his spn, pr the son of the defandant
Daniel, understood the contract to be a mort
gage, would be incompetent per se to prove a
mortgage^it is nevertheless A tact proved,
and, as such, is admissible and significant as
a circumstance corroborating other and more
direct facts. It would be rather strange that
those perspns alludpd tp in thpse three depe-
sitions, and dpubtiess other "persons: =>>""1A

should

have understpod the contract to have been in
tended as a mortgage, unless it had been so
designed or understood by the parties, or Puo
ef them.
C. If, as D. R. Sputhard avers, (and as raay
be true frera a fact stated iu Thruston's depo
sition and the fact that Dr. Johnson, who at
tested the defeasance, was not present at the
execution of the conveyance,) thc defeasance
was not executed until a day or days after the
conveyance — this circumstance alone is preg
nant Avith evidence of a mortgage. .It is
abundantly proved, that J. Southard Avas a
sharp trader, and signally tenacious of any
advantage he had obtained by a bargain. —
See Harrispn, p. 227; Turner, p. 225; Kellar,
p. 224; Baker, p." 222; Marders, p. 320, &c.,
&c. If then, fpr the paltry consideration he
had advanced, he had fairly bought the farm,
and had obtained an indefeasable conveyance
of the title Avithout any understanding that he
was to hold it in trust as a security, could it
be believed that he Avould, afterwards, vplun-
tarily, and withput any cpusideratipu, give to his
vender au pbligatipn tp.re-ccnvey on np Pther
condition than the restitUticn of Avhat he had
paid him? And, if Russell had negotiated and
understood that he had, by his conveyance, con
summated an irrevocable sale, why did he so
suddenly change and request anew contract giv
ing him the privilege of repurchasing? Why did
he not think of this and provide, for it before he
had delivered the deed? The> only rational
answers to these questions imply, with a cer-
tianty almest indisputable, that Sputhard pb-
tained the conveyance on trust, and Avas con
triving to evade any written evidence ef it;
that therefpre, Russell, apprehending fraud,
demanded a memorial of defeasance, and that,
when thus freshly and importunately pursued.
Southard Avas bound to surrender a sm^repti-
tious advantage; and that, stiU contemplating
the same frauditient purpose, he had such a
Avriting prepared as, in the judgraent of his
lawyer, would import a resale only, and on
terras Avhich he thought Russell could never
fulfill. And this deduction is fortified by
D. B. Southard's .reckless efforts to .shoAv
that there Avas no consideration for the
defeasance; for why, we ¦ reiterate, Avas it
deemed by him so material to falsify as to
the consideratipn unless he knew that
Russell desired the defeasance as evidence
of a mortgage, .n,nd so expected it to operate?
For, if the parties iuteuded it only as reserving
a cpuditional right of repurchase, a, valuable
consideration or no consideration for it was
not material after thc prescribed time for pay
ment had elapsed, and Southard's title had
become indefeasable. Whatever Russell
might have thought ofthe terms ofthe defeas
ance as it was all he could then get he was
bound to take it. Southard, by obtaining a
coiiveyance absolute on it-s face, "had placed
-RusseU in vinculis, Avhioh left him no alterna-
. tive but ,tptake the memerial pf defeasance

SSS

SUPREME COURT, U. S.

as offered to hira or have none at all. All
this D. R. Sputhard knew, aud therefpre he
has subjected himself to the iraputation of per
jury or stultification in his elaborate and suici
dal effort to make the defeasance 'gratuitous!'
7. The last extraneous fact we shall here
notice is the glaring inadequacy of the consid
eratipn, which we consider, in itself alone,
conclusive. That the farm was, at the date of Russell's
conveyance, worth at least three tiraeS as
much as the A'alue of what he received from
Southard is, Ave think, sufficiently established.
All that he received could not have been
worth more than $4229.81 — and was probably
of rauch less value, perhaps not equal to $4000
— the clairas assigned, ampunting nominally
to $3829.81, were not of that value; if they
had been, they Avould not have been assigned
in the manner they Avere — as a mere "chance,"
without recourse ou either of the Southards.
We have no ineans of knoAving either, whether
they Avere founded on legal and binding cpu-
sideratipns, or Avhether the securities were
then deeraed sufficient and availing — and Ave
do know that Russell incurred the trouble, ex
pense, and- hazards of protracted litigations for
enforcing them, and did not finally succeed, to
the Avhole extent, until the fall ofthe year 1 830.
And that the farra Avas Avorth more than
$12,000, pj-obably at least $15,000, in Sep
tember iS27 — is inferrible 1st., from the Dep
ositions of Talbot, page ,199 — of Doup, page
201 — of Wood, p. 214 — of Berkinmyci', page
235 — of Richardson, page 23C^Howard, page
237 — Marders p. 220 — whose estimates vi
brate between about $9,000 and $31,000— 2d.
From the price Offered by Talbot p. 199 — he
considered a purchas9 a speculation at $10,-
000 iu cash. — 3d. From its quality, proxim
ity to Louisville, and the cost aUd condition
of the iraproveraents — the house alone costing
$12,000 and being insured at $7,000— see
Stuart's deposition p, 239 — 4th. From the
fact that J. Southard said (to make a case)
thatthe farm had cost him $10,000, and, at
another tirae, that if he ever owned it, the
cost AvouId bo $10,000— andfrora thefact that,
only about 1 6 raonths before Russell's convey
ance, he paid nearly $14,000 for the farm, and
land Avas improving in price in September,
1827, when he conveyed the land to Southard
— see deposition of HoAvardp. 238. On these
facts we may safely assume the minimum val
ue ofthe 'adA'ance' by Southard.
Would Russell have sold for such a price?
"Inadequacy of price" — "the conduct of the
parties" — "the necessities of the party con
veying" — are admissible and impcrtant, on
the question of a mortgage or conditional sale.
But gross inadequacy is the most decisive.
Oldham vs. Hally 2. J. J. Marshall 115—
Erdrington vs. Harper supra — 'Wilcoxc's
Heirs vs. Morris 1. Miirph. 117 — 2. Call su
pra — 1. Pow. on mprtgagos— 5-6-&C. Cen-
ways's Ex'r vs — Alexander — supra; — in the

last case the Supreme Court said that gress
inadequacy was very cogent evidence pf a
mprtgage; and 3 of the then 7 members of
this "court, said it would, per se, be irresista
hle." How can it be resisted when, as iu the
case nOAV before this court, it is aided by eth
er cpnsideratipus sp varipus aud persuasive as
these noticed in tho foregoing view, which
we here close as to the 1st. ppsitipu — that the
cputract was fpr security and not sale?
. II. The only act whieh could be tortured
into a relinquishraent pfthe equity pfredemp-
tipn is the receipt prpcured frpm Russell on
the 6th. of October, 1830. But that is entitled
to no such effect, for three reasons:
1st. It was neither intended nor should be
construed as a release ofthe equity of redemp
tion. The nominal araount of the claims as
signed to Russell, was $2829. 8U; which ad
ded to $2000 advanced by Southard, made the
entire aggregate of the consideration $4829.-
SHonly. Butthrough inadvertauce,~the par
ties had erroneously estimated the assigned
claims at $2929.81^, aud therefore the con
veyance recited the latter amount as the con
sideration — RusseU believed that he was get
ting, and Southard (if guilty of no fraud)
supposed that he Avas advancing $4929. 81j;
and consequently the defeasance required the
repayment by Russell of $4929.8l| cents as
indispensable to his rightto a reoonvejance.
Then, as Russell had not, even nominally, re
ceived more than $4828.81^ cents, he had an
indisputable right either te demand the pay
ment of $100 Avith interest,'pr the privilege ef
redeeming on the repayment of $4829. 8l| in
stead pf $4929.81^ as erreneously stipulated.
Southard — most recklessly aud fraudulently —
denied both his right to the $100 and his equity
of redemption. Moreover, he Avas not then
able to redeera, and Avas distressed for raoney
— see Southard's an'r page. 164 — and the
dep'u of Johnson p. 212, aud of Woolly, page
246 — and of Thruston.
Uuder these circumstances the utmost he
could expect at the tirae, Avas the payraent of
the SlOO — and which sum alone, and without
any interest, after rauch impudent and evasive
trifling by the Southards, was finally paid to
him. It Avas this transaction, and this only,
which the receipt of October 6th, 1830, Avas
intended to acknowledge and certify; and,
though fraudulently designed by the South
ards, it expressly recites that the sum re
ceived ($100) made "thc tAvo debts of BroAvn,
and Johnson, Avith the $2000, amount to the
sum of $4929.81^"— the precise considera
tion acknoAvledged in Russell's conveyance
and required by the defeasance to bo repaid
by him. It is undeniable that thc $100 A\'ere
paid and received for no other purpose than
that thus sheAvn, and justquoted. And there
fore, the cunning conclusipn of the receipt,
that "this is in fuU of all demands upon J.
Southard," should be interpreted by tho court
as intended and understood by Russell, only

SUPREME COURT, U. S.

383

to acquit Southard of all pecuniary demands,
or rather of all such demands on account pf
•the cpusideratien agreed to be advanced, or as
advanced by Southard. It Avas manifestly npt
intended pr understood by him, as releasing
his equity of redemption — nor can it, as Ave
respectfullyinsist, be cpnsistently sp cpustrued
by the court.
, 2. Had the receipt beeu intended as a re
lease pfthe equity of redomptipn, it is ineffec
tual for Avant of any consideratipn. It is per
fectly ridiculpus to pretend, as D. R. South
ard does in his ansAver, that the raistake in
the coraputation was that of Wordou Pope,
aud that the parties themselves did not esti
mate the claims on Brown and Johnson at any
precise amotmt. Russell raust, as a matter of
course, be presumed to have understood that
he Avas receiving, and Southard must be pre
sumed to have understopd that he was advan
cing a certain and ascertained sum. Both of
them raust have estimated, at some fixed
amount, the aggregate of the assigned de
mands; and must alse have ccncurred in the
same ampunt. And the cpuveyance and the
defeasance shpw what that cpnventioual
ampunt Avas. Besides, as the defeasance
required Russell tp pay $4929. 81j ceUts be
fore he could redeera, and as the sum he had
received could not exceed $4829. 81j, Sputh
ard still pwed hira $100. The cpuclusipu is,
therefpre, inevitable that the payment pf $l0O
in Octpber, 1840, was received in satisfaction
of a debt, and was no cpnsideratipu for a re
lease of the equity pf rederaptipn. And
there is no pretence that there was any other
consideration. 3. But had the $lOO been a new and an
actual consideration, and had Russell, on the
receipt of it, agreed to relinquish his equity of
redemption, not pnly was the censideratipn
insufficient, but the agreeraent was exterted
by duress and fraud. . Although a raortgagee
may purchase the equity of redemption, he
can never do so availably and irrevocably,
unless he can show that he did it fairly and
for a full aud commensurable consideration.
A contract by a mortgagee for purchasing
frora the raortgagor his equity of redemption —
like similar purchases by others, raaiutaining
a relation of trust or dorainion as to the ven
dor — is constructively fraudulent; that is-^as
the best means of preventing fraud, for the
perpetration of which there may be peculiar
temptatipns and facilities iu all such cases —
the law will assume fraud until the cpntrary
shall be raade manifest by the purchaser.
And it is well settled that, befpre a mortga
gee will be permitted to bar the equity of re
demption by an alleged purchase of it frpra
the mertgagpr, he must prpve that-the centract
was unquestionably fair, and uppn au ade
quate consideratipn. "The mprtgagee may be-
cpme the purchaser pf the equity of rederap
tipn if he dpes .net raake use pf his incum
branoe to influence the mortgagor to part with

the estate fer less than its real value. If,
hpwever, the mprtgagee dpes purchase the
equity of redemption, he shpuld always pay
a valuable, indeed an adequate cpnsideratipu
fpr it."— Powell pn Mprt. 122, u. N. This is
the true dectrino, recognized by a raultitude
pf cpncurrent and unopposed authorities. Its'
application to the facts of this case is unan-
sAverably decisive. Besides, the relinquish
ment, if' intended to be made by Russell, Avas
void for duress and fraud. Was he not pe
culiarly in the power of Southard? Was not
that poAver fraudulently exerted? Did not
Southard "make use of his incumbrance (and
a most foul use) to influence the mortgagor to
part with his estate for less than its value,"
even for nothing? But, althpugh a surrender
of the document of defeasance was fraudu
lently coerced, tho foregoing facts conduce to,
show that Russell did not understand that he
thereby released his equity of redemption.
And this deduction is fortified by the fact that,
within one or twp years after the date pf the
receipt, he came tP LpuisviUe to look "after
his rights there" — and then undpubtedly
clairaed a right tP redeera — WcpUey's deposi
tion, 247.
The conclusion seems to be irresistahle that,
by the arrangeraent of October, 1830, Russell
made ne intentipnal or binding relinquishment
of his equity of redemption. But the cpuduct
pf -the Southards in procuring the possession
of the dpcuraent pf defeasance and writing
the receipt pf Octpber 6th, 1830, and the ex-
traprdiuary character and sinister purpese ef
D. R. Sputhard's answer tP thpse raatters, re
flect a flppd pf new light en the priginal ecu-
tract, and affprd cpnclusive prppf pf the usury
and fraud imputed to J. Southard and his
brother and coadjutor, D. R. Southard, the
appellee. Aud here too, Ave'find a retro-ac
tive auxiliary to the extraneous considera
tions urged in another place to shoAv that the
Original contract was, a raortgage. ,
III. Np statute pf liiaitations, propria vigore,
applies tp suits iu equity. But as "equity
fellows the laAv" — in its spirit and reason —
and as it is proper that there should be some
fixed and uniform peried fpr limiting bills in
chancery as Well as cpmraon law actipus, cpurfs
pf equity have vpluutarily adppted the statute
pf limitations iu aU cases of concurrent juris-
tion tP operate as a statutory bar, excepting
only that, in cases of fraud and mistake, time
is computed from the discpvery pnly or from
the tirae when, by reasonable diligence, it
ought tp have been raade. Cases ef exclusive
jurisdictien in eqiuty are pf two classes — the
first class embracing all cases in Avhich, if rem
ediable by an action, the statute of liraitatious
would operate as a bar; and the second class,
coraprehending all those cases in which the
reraedy at law, if there had been any, would
not cprae Avithin the pperatipu pf any statutpry
liniitation. The first class may ba illustrated
by an equitable right to land by an entry or

3S4

SUPREME COURT tf. S.

Avarrant only, without a grant, or consummated
only by a junior patent, tha legal title to the
same land having been previously granted to
an adversary claimant. In that case, the rem
edy against the elder and the more perfect
title will be exclusively in a court of equity.
But wilh that exception, the case would be
altogether analogous to an action of ejectment
for the same land between the same parties;
and, consequently, if the defendant had been
in continued possession twenty years, the
statute of limitation might bar the bill in
chancery precisely as it might have barred an
ejectment, had that beeu the proper remedy
instead of the suit in equity. In such a case
the statute would operate by analogy. But in
the second class of cases of exclusive juris
diction in equity, which may be illustrated by
trusts, there may be no such analogy. The
possession of the Trustee will not be presumed
to have been adverse to the rightof the -bene
ficial owner; and until it had been tortious or
adverse in fact, and had so continued for
twenty years, a legal remedy, if any such had
been maintainable, would not have been
barred by the lapse of time. Of course, un.-
der the same circumstances, time would not
bar the suit in equity. But, even in that case,
lapse of time, though not a peremptory statu
tory bar, might be prima facie a presumptive
bar. Feeling that, for stability and uniformi
ty, legal presumptions arising from mere lapse
of time should depend on some fixed period,
and deeming twenty years most fitting, be
cause the legislative department had selected
that period as proper for barring rights of en
try, and also because, within about that time,
loss of documents and death pf witnesses
might be reasonably presumed — Judges and
Jurists, wherever the coramon law prevails,
have finally adopted the lapse of , twenty years
(nothing else appearing to counteract it) as the
period of legal presumption from mere time.
And this presumption applies equally to every
judicial forum and to all forms of suit. Thus,
after a bo.nd ha_d been due 20 years, the law
will presume payment, unless some other
fact inconsistent with that presumption shall
be proved; and consequently thus also, if a
mortgagor had continued in possession twenty
years after the day of forfeiture, thelaw would
presume that he had paid the debt punctually,
and that his possession had been in his OAvn
right as absolute owner, and therefore adverse
to the claim of the mortgagee — and, for the
like reason, if the mortgagee had beeu in posses
sion, twenty years a^ter the debt became due,
there would be a resulting presumption of law,
that the equity of redemption had been re-,
leased. But, in such cases, as the bar Avould
be merely presumptive, itmightbe defeated by
proof of a recognition of the stibsistence of the
debt or of the mortgage, express or implied, at
any time within the twenty years; for not one
day short of full twenty pears, uncprrpbprated
by any ether and fortifying circumstance, will
be sufficient to raise the legal presuraptioa
frora raere lapse Of tirae. These doctrines we
consider too well settled by reason and modern

authorites to require either elaboration or ci
tation of adjudged cases for ensuring the re
cognition of their soundness by this court.
This case belongs- to the last class of Cases
excliisively cognizable in a court of equity;
and therefore is not affected by any statutory
bar. We insist also, that it is not concluded
by anypresuraptive bar. Southard's posses
sion could not be presuraed adverse or , of any
other than the amicable character of that
of a faithful mortgagee, before the 6th of Oc
tober, 1830, from which time we raight per
haps infer that his possession was in fact
wrongfully in his own usurped claim of abso
lute owner. Only about 1 7 years-had elapsed
bet-ween that time aud the commencement of
this suit. And, even from the end of four
months succeeding the date of thedefeasance,
until the institution of the suit, 20 years had
not elapsed.
Then it is manife'st that the equity of re
demption is not lost or defeated bf mere lapse
of time.
Nor is there any auxiliary fact which, when
combined with the running, of tirae, would be
sufficient to create a rational presuraption, or
presumplion, in fact that the equity of re
demption had been either abandoned, re
linquished, or overruled by supervening and
preponderating equities in Sputhard.
There is enough in the record to shew, as
already suggested, that the fraudulent and
oppressive, transaction of October, 1830, was
not intended by Russell at that time, nor un
derstood by him since as a relinquishment of
his right to redeem. And Southard dpes not
pretend that it was ever released by any sub
sequent act. He even denies that it ever exis
ted- And moreover, sorae facts before allu
ded to, indicate a recognition of a subsisting
raortgage, sinciB the year 1830, and oral' asser
tions of a right to redeem by Russell siuce that
memorable year. We can perceive no fact co
operating with lapse of time to establish a
presumptive Bar. And the mere lapse of 17
years, or even ]9years and 8 raonths, is unques
tionably insufficient. Besides, so far as it might
operate per se, (though, in that way ineffect
ual) as one fact tending to the inference of
release, it is rebutted by the destitute and
helpless condition of the mortgagor. A victim
of the avarice and fraud of the Southards, he
has been unable to redeem by payment — and
has beeu lulled by the hope that, when they
should become gorged with the profits of the
farm, they would finally yield it up to him on
equitable terms, without a suit, which he, a
destitute stranger, had' neither the courage,
nor means to prosecute against such fearful
odds, until 1847, when; all hope of voluntary
justice expired and he began to apprehend
that longer delay might arm his adversary
with alegal weapon of successful resistance.
Nor are there any countervailing equities.
D. R. Southard is a volunteer; He had also
full notice of the facts, and counselled and co
operated, througheut, with J. Southard. He
participated in every act of fraud and is re-
jsponsible as one of the guilty afttOTS. There

SUPREME COURT, U. S.

38S

is no danger that a redemption now will result
in any injustice to him. He has made no val
uable imprevements iu faith pf pAvnership.
He could cpmplain of no loss by any Avrongful
act or deceptive omission by Russell. And,
if any unreasonable disappeintraent er loss
should result to him frpm a decretal redemp
tion, his long occupancy of the farm and en
joyment of the prpfits, wpuld alone afford ara
ple means for his indemnity, if he shpuld be
entitld to retributipn. Such enerrapus fraud
and pppressipu, as he and his testator inflicted
pn an unfortunate and distressed fellpw citizen,
should not be consecrated by the lapse of
seventeen years. They cannot be thus
legalized by Kentucky Justice or Araerican
Jurisprudence. The right tP redeem has net
been reUnquished, ferfeited er Ipst. This we
thmk, we have a right te cpuclnde with cpnfi-
dence. The extent of the relief which would be
proper, in the event of a reversal of the decree
of the circuit court, may be worthy pf sorae
supplemental notice.
1. Southard shpuld be charged Avith the
reasonable profits of the farm, subject tp a
credit fer amelipration, if any. He may be
entitled to $4,829.81^, Avith six per cent, in
terest thereon, frpm the date ef the centract.
And we presume to suggest that he may be
Uable for $7,000, for which he insured the
house, if he received that sum under his poli
cy; or for whatever he did receive, if he re
ceived any thing. But, as the facts necessary
for a final adjustment of this raatter have not
been effectually Utigated, we wonld suggest
the propriety of submitting it to ulterior in
vestigation on the return of the case, if it shall
be remanded for a final decree for relief.
i. The lein clairaed by the heirs of Burks
ought to be disregarded. It is but the renew
al of a raortgage taken by himself as an addi
tional security for the price of lots sold by
him, and on which also he reserved a lien.
That Uen on lots should be presumed to be
sufficient; and moreover, Burks had notice,
49

actual or constractive, of Russell's pre-exist
ing equity— see deposition of Longest, 204.
3. Nor can Tompkins be entitled to the
protection clairaed by him as a bona fide pur
chaser Avithout uptice. Sputhard himself says,
as tp that matter, pnly that he had conveyed
to Tpmpkins. He dees net intimate that he
spld to him for a valuable consideration.
Tompkins says that he bought 31 acres for
$3,500, and had paid $l,500of that price. If
all that be true, the actual price was about
$ 11 2 an acre for land proved to be worth $250.
Tompkins is the son-in-law of D. R. Southard.
It is quite likely that the conveyance was an
advancement. But were it a sale, Tompkins'
position aud relationship towards Southard
might iraply notice of Russell's equity. Bnt,
however all this may be, Tompkins, having
paid only a pprtipu pf the consideration, is not
iu the legal sense, a "purchaser," without
notice. Both the conveyance of the legal title
and the payment of the consideration are ne
cessary to cpustitute such a purchaser. —
Hardinghara vs. Nichols, 3 Atk., 304; Sug-
dpn pu Venders, 302; Frest vs. Beckham, 1
Jehnspu's Ch'y. n. 288; Lewis vs. Palmer, 7,
ib. 65; 2d vpl. Mad. Ch'y. 255; 2d vpl. Sto
ry's Equity, Sec. 1502. So far as Tompkins
had not paid before the commencement of this
suit, (being a bona fide buyer in fact,) he would
hold the legal title under an iraplied tmst for
Russell. And should he, so far as he had pre-
¦?¦iously paid, be entitled to protection pro ianto,
there would be no difficulty in securing to him
a just raeasure of indemnity. We desire
nothing but justice cither as to the redemption
or the extent and manner of it.
We hope for the rescue of our long suf
fering client at last, though late, by the decree
of this court. And reppsing pu this tmst, we
here cpnclude, withcut further amplification,
adding pnly that, whatever raay be the ulti
raate decisipu, we have a right tp expect that
it Avill, in all respects, harraenise with the
Lex loei contractus — which is the modern code
of Eequitable Jurisprudence as recognised
and estabUshed in Kentucky.

SUPREME COURT U. S.

SOUTHARD
vs.
RUSSELL

Appellee's Brief.

This Court having, at its last terra, in the
case of Russell vs. Southard and others, de
cided that a conveyance of land near Louii-
vUls, Ky., by Russell to Sputhard, was a
mortgage, and that the raortgagor might re
deem on terms prescribed in the opinion.
Southard petitioned for a re-hearing — and his
petition being overruled, the Circuit Court, in
obedience to the mandate, entered a decree for
redemption, and continued the case for further
Reparation as to some of the defendants.
Whereupon Southard filed in that Court a bUl
of Review, praying for a review, or a chaiige
of the decree for redemption, on the alle£;ation
that, since the date of the original decree
by the Circuit Court, he had made the fol
lowing discqveries : ,
1. That the attorney (Stewart) who brought
Russell's suit " illegally, fraudulentiy, and
corraptly obtained, 'by direct bribery, the tes
tiraony and deposition of Peter Wood, a ma
terial witness in the case, and upon faith in
whose statements the Supreme Court was in
duced to render its decision."
2. That the contract under Avhich Stewart
brought the suit was champartous, entitling
Stewart to one-half of the land in the event
of success.
3. That "just before the sale of the farm
to James Southard, it was offered by Russell
to George Hancock and the late Mrs. Caroline
Preston for the price of $5,000, and he was
urgent with each of thera to buy at that
price." 4. That shortly previous to the sale to J.
Southard, the farm was advertised and offered
for sale by RusseU at auction, and not sold for
want of bidders — though your orator has "some
imperfect recollection of such having been the
fact." 5. That Talbot had sold, for only about
$4,000, property in HuntsviUe, which, at the
estimate of $10,000, he testified, in the ori
ginal suit, he had offered Russell for the land
afterwards conveyed to Sputhard.
6. That James C. Jphnspn, a witness in the
original case, " will prove that the Supreme
Court has entirely misconceived or miscon
strued what he intended to say in his deposi
tion, as will appear bv his affidavit filed here-
with." 7. That "he has found among the papers
of J. Southard what purports to be a written

extract from a letter from G. C. Russell to J.
W. Wing, dated Alexandria, 19th December,
1827, which is filed herewith. Thia extract
is entirely in the hand writing of W. 0. Payne,
who died long before the institution of this
suit, and certified over his signature to be
truly executed, on tbe 16th January, 1828."
8. That he " has seen Avhat purports to be
'an official extract from the schedule of estate
surrendered by Russell, under oath, when he
took the benefit of the insolvent act of Alaba
ma, one item of which is a debt against John
Floyd for $8,000. This together with the ex
tract of the letter from Russell to Winn, in
duces the belief that the sale from Floyd to
Russell was coupled with some sort of con
tract between them, which authorized Russell
tp look to Floyd for whatever difference there
might be between the price obtained on a re
sale of the farm, 'and that which he paid Floyd
therefor." Such is the anatomy of the BiU of Review,
which, A\'ith the lea^ve of the Circuit Court,
Southard filed, Russell, in his answer to that
bill, denies that the allegations are Sufficient
for maintaining a Bill of ReA'iew — denies
champarty, and shows that, by his contract
with Stewart tho latter was to have a contin
gent fee of one-half of the value of the land
redeemed — alleges that there was no specific
agreement as to the araount of the fee until
after the suit Avas brought — that there was no
understanding or purpose that Stewai-t should
have any interest in the land until after this
Court decided the case, when, at the instanee
of Henry Clay, one of his counsel here, hi
conveyed to Stewart half the landfor securing
his own fee, and the fees also of Mr. Clay and
of several others of his counsel in this Court
and in the Court beloAv — denies, that anycor-
rupt influence was exercised in procuring Dr.
Peter Wood's testimony — avers that his testi
mony was strictly and whoUy true — states
that, when he visited Kentucky in the Fall of
1827, his raanager. Wing, presented to hira a
list of debts to a large araount, incurred by
his (R.'s) agent, araong which was a debt to
Wood and another to Dr. Smith — that when
he brought his suit, he gave Stewart a memo-
randura of witnesses, of whom '^ood was one,
and, being informed by Stewart that Wood
and Smith claimed payment of their said
debts, and that he had presented to him by

SUPREME CO'URT U. S.

887

Wood a bill for medical services and borrowed
money, authenticated by Wing!s endorsement,
he authorized Stewart to give a note for it,
which he afterwards understood Stewart had
done, for $280 — and denies that there Avas any
other motive or cpnsideration for that note
than a desire to satisfy an honest debt — denies
that the decree of the Court would have been
otherwise than itwas without Wood's testimo
ny — insists that, as Southard had, in the ori
ginal case, endeavored to impeach Wood, aud
had, in his petition for a re-hearing in this
Court, said that he had always suspected that
he had been suborned, he had been negligent
in not showing sooner the fact of the existence
of the note to him for $280 — and avers that
this matter is no cause for a BiU of Review —
denies that he ever offered the land to Han
cock or to Mrs. Preston for §5,000 — denies
that he saw Haucock during the year 1 827 —
says that, instead of offering to buy his land,
Mrs. Preston proposed to borrow from him
$5,000 — denies that there was any such un
derstanding with Floyd as charged in the bill
— avers that he could, any day, have sold the
land for much mere than $5,000 — that J. D.
Breckinridge informed him that he could get
|9,000 for it, but he was unwUling to take
that sum for an absolute conveyance — denies
that any specific property in HuntsviUe was
offered by Talbot, and avers that the offer was
$10,000 in property of that value — denies the
materiality of Johnson's explanatiop of his
deposition, or his right to construe it for this
Court, or Southard's right now to bring that
explanation in — denies the genuineness of
the extract from a letter to Wing, argues
to prove that it is false, and avers that the
spurious paper has been lately aud fraudu
lently altered, by erasing 'redeem,' and insert
ing 're-purchase' — denies that any of the va
rious grounds specified in the bill are suffi
cient to justify a review — insists that all of
them were involved in the issues previously
litigated — avers that, in, not presenting them
in proper time, Southard was guilty of gross
negligence — and concludes by averring that,
from the beginning' of this litigation, Soutb-
ard had been guilty of the most unscrupulous
frauds and foul play, and appeals to the re
cord to prove it — and finally denies all fraud
and every allegation not directly answered,
and prays a dismission of the bill and an en
forcement of his decree.
The Circuit Court dismissed the bill' — and
Southard has appealed.
In arguing the case, we will first briefly
consider the law which must govern the de
cision of it. As Southard's Bill of Review
does not question the correctness of the opin
ion of this Court on the original record, but
relies sdtogether ou an alleged discovery of
evidence since the date of the first decree in
the Circuit Court — an inquiry into the cor
rectness of the decision sought to be reviewed
would be superfluous and impertinent.
Though a decree may be set aside for
fraud in obtaining it, the proper proceeding
in such a case is, not by a Bill of Re'new,but

by an original bill in the nature of a Bill of
Review. A Bill of Review and a bill for a new trial
of an action depend on the same principles,
and are governed by analagous rules of prac-^
tice; and neither of them, as Ave insist, can be
raaintained on the extraneous ground of a
discovery of new testimony, unless the com
plaining party had been vigilant in the pre
paration of the original suit, and could not, by
proper diligence, have made the discovery in
time to make it available on the trial — nor un
less the discovered testimony will prove a fact
which, had it been proved, before or on the
hearing of the original case, would have pro
duced au essentially different judgment or
decree — nor unless the new evidence be either
documentary or, if oral, shall establish a fact
not before in issue for want of knowledge of
the existence of the fact or of the proof of
it. This is the long and well settled doctrine
in Kentucky, (See Respass, <fec., vs. McClan-
ahan, Hardin, 347 ; Forbes vs. Shackleford,
1 LitteU, 35; Taney vs. Downer, 5th, Ib. lOj
Findley vs. Nancy, 3 Mon. 403; Hendrii's
heirs vs. Clay, 2 A. K. Marshall, 465; Respass
(fee, vs. McClauahan, lb. 379; Daniel vs. Dan
iel, 2 J. J. Marshall, 52; Hunt vs. Boyer, 1 lb.,
487; Brewer vs. Bowman, 3 lb., 493; Ewing
vs. Price, lb. 522.) This doctrine is as rational
every where as itis autiioritative in Kentucky;
and we think that it is generally recognised
and maintained wherever the equitable juris
prudence of England prevails. It is co-ex
istent with the ordinances of ChanceUor Ba
con, of which that one applying to Bills of
Review on extraneous ground has been, from
the year of its promulgation, interpreted as re
quiring either new raatter not before litigated,
or recorded or written evidence decisive of a
fac^ involved in the former issue, and of the
existence of which raeraorial the coraplaining
party was, without his own faultor negligence,
ignorant, until it was too late to use it to pre
vent the decree sought to be reviewed. (See
Hinds' Practice, 58; Gilbert's For Rom. 186;
Story's Equity Pleading, 433-4, N. 3 Taylor
vs. Sharp, P. Wra's 371; Norris vs. LeNeve,
Atk., 33-4, 2 Maddox, Ch'y, 537; Partridge vs.
Usborae, 4th Russell, 195; Wiser vs. Blackly,
2 Johnson's Ch'y Rep's, 491; Livingston vs.
Hubs, 3 lb., 126.)
Discovery of additional witnesses, or of cu-
raulative or explanatory evidence "by the
swearing of witnesses," has never been ad
judged a sufficient ground for a Bill of
Review, or for a new trial of an action. The
rule applied by most of the foregoing author
ities, and virtually recognised in all of them,
is dictated by obvious considerations of poli
cy, security, and justice. A relaxation of it
so as to allow » new trial or review, on the al
leged discovery of corroborative or explana
tory testimony, of witnesses, would open the
door to frau^, subornation, and perjury, and
would not only encourage negligence, but
would lead to vexatious uncertainty and delay
in litigation.
I As to the discovery of new "matter," or of

388

SUPREME COURT U. S.

written evidence, the law is also prudently,
stringent in requiring that such matter or evi
dence shaU clearly make the case conclusive
in favor of the party seeking to use it; and,
moreover, that the Court shall be well satis
fied that the non-discovery of it epportunely
was not the result of a neglect of proper in
quiry or reasonable diligence. Toung vs.
Keighly, 16th Ve. p. 352; 2 & 3 Johnson, Su
pra; Findly vs. Nancy, Supra, and some of
the other cases cited.
Nor will a review or new trial be granted
for the purpose of impeaching a witness.
Barret vs. Belshe, 4 Bibb, 349; Bun vs. Hoyt,
3 Johnson, 255; Duryee vs. Dennison, 5th, lb.,
!250; Huish vs. Sheldon, Sayre, 27; Ford vs.
TiUy, 2 Salk. 653; Turner vs. Peart, 1 Term B.
717; White vs. Fussel, 1 Vessey & Beame, 151 .
We respectfully submit the question, whe
ther the principles recognised and the rules
established by the foregoing citations, and
many other concurrent authorities, do not
clearly and conclusively sustain the decree
dismissing Southard's Bill of Review, and
which he now seeks to reverse ? We suggest
in limine that the bill sliould not be construed
as intending to irapeach the original decree as
having been obtained by fraud. The only
distinct allegation in it on that subject is, that
Stewart (oue of Russell's attornies) fraudu
lently bribed Dr. Wood to give his deposition.
There is no allegation that Wood's testiraony
was false, or that, without his testimony, Rus
sell would not have succeeded in this Court.
Nor does the Bill anywhere intimate what por
tion of Wood's evidence was false, or in what
respect. And, could the bill be understood as
sufficientiy impeaching the decree for fraud in
obtaining it, an original bill, and not a Bill of
Review, was the proper reraedy. If, there
fore, it be Southard's purpose both to impeach
the decree for fraud, and also, on the discovery
of new testimony, to open it for review, Ave
submit the question whether those incongru
ous objects can be united availably in a BUl
of Review.
Bat we cannot admit that either the allega-'
tion of false swearing or of the perjury of a
witness is ground for a bill impeaching a judg
ment or decree for fraud: nor have we seen a
case in which it was ever adjudged that the
subornation of false testimony by the suc
cessful party was such fraud in the judgment
or decree as would lay the foundation for an
original biU for setting it aside. Although it
might be gravely questioned on principle, yet
it it has been said that, while a Bill of Review
or for a new trial will not be maintained on an
allegation that tha decree or judgment was ob
tained by false swearing of a material witness,
yet a subsequent conviction of the witness for
the imputed perjury may be ground for a re
view or new trial. But whenever alleged
peijury is the ground for relief, legal con
viction and conclusive proof of it by the
record are, at the same time required as in
dispensable. And this is dietated by the same
policy which forbids new trials or reviews for
Impeaching ¦witnesses by other ¦witnesseB—

Respass vs. McClauahan, and Brewer vs. Bow •
man, Supra. Whilst, therefore, we doubt Avhe
ther, on well established principle or policy,
even a conviction of purjury is, per se suffi
cient cause for a new trial or review, we cannot
doubt that imputed perjury without conviction
is not sufficient, in any case.
Simply obtaining a decree on a groundless
claim and on false allegations, and even false
proof by a party knowing that his claim is
unjust and that his allegation and proof are
untrue, has never been adjudged tobe a fraud
on the other party, for which he could be re
lieved from the decree by a Bill of Review, or
an original bill impeaching it for fraud. Bell
vs. Tucker, 4B. Mon., 652; Brunk vs, Means,
nth lb., 219.
If procuring a decree by false allegatians,
known by the party raaking them to be untrue,
and also availing himself of false testiraony,
knowing that it Avas not true, be not, in judg
raent of law, such a fraud on the other party
as to subject the decree to nullification or even
review, why should the fact thatthe same par
ty, who knowingly alleged the falsehood, in
duced the false witness to prove it, make a case
of remediable fraud ?
But, if, in aU this, we are mistaken, we in
sist, as already suggested, that there is, in this
case, neither proof nor allegation that Dr.
Wood's testimony was either totally or parti
ally false; although Southard, as proved by
the depositions of Jos. C. Baird, (p. 168,) and
of B. F. Baird, (p. 156-7,) and of E. Clark (p.
145-6,) and of Deering, (p 155-6,) and of W.
J. Clarke, (p. 259-60-61,) made elaborate and
sinister efforts to seduce Wood.and fraudulently
extract from him something inconsistent with
the truth of his deposition, his failure was so
signal as to reflect corroborative credit on
Wood's testimony. In the original case.
Southard made a desperate effort to impeach
Wood's testimony. In that he failed. This
Court, in its opinion, said that he should be
deemed credible, and raoreover said that his
statements were intrinsically probable, and
were also corroborated by other facts in the re
cord. The assault now made upon him, and
on the attorney of Russell, is but a renewed
effort to impeach tes'timony that was accred
ited and considered by this Court in its origi
nal decision.
Could this forlorn hope succeed, the only
effect of the success would be to deprive Rus
sell of Wood's testimony. The setting aside
of the decree would not foUow as a necessary
or even a probable consequence. If thei-e be
enough stiU remaining to sustain that decree,
it will stand. And that there will be enough,
we feel perfectly satisfied. The gross inade
quacy of consideration — the defeasance and
its accompanying circumstances — the peculiar
and extraordinary means employed to disguise
the true character of the contract — the condi
tion and objects of Russell — the character,
business and conduct of the Southards — the
allegatiouB, evasions, inconsistencies, and
falsehoods of the answer of D. R. Southard—
Jonhson's testimony, proving, as this Court

SUPREME COURT U. S.

389

said, a mortgage — these and pther considera
tions, independently of Wood's testimony, are
amply sufficient to sustain the former opinion
of this Court, as shown by that opinion itself,
aud by abundant citations of recognised prin
ciples and adjudged cases in our former brief
Then the allegations as to Wood and Stew
art, had they been sufficiently explicit to ira-
pute subornation and perjury, and had they
been also proved, would not have amounted to
vitiating and avaUable fraud in obtaining the
priginal , decree, which could not be annulled
or changed on that ground by an original bill
impeaching it for fraud. This matter conse
quentiy is, in effect, only an irapeachment of
the credibility of a witness; ancl which, had
it been possible, would have been ostensibly
effected oy the swearing, and perhaps 'perjury,
of other witnesses, and by corruption and
foul combination. But though means extraor
dinary and discreditable have been eraployed
to destroy Wood's credibility, the only circura-
stance Avhich could, in any degree, tend to
throw the slightest shade on the truth of his
testimony is the fact that, about the tirae he
gave his deposition, Mr. Stewart executed his
note to him for $280. Is it proved, or can this
Court judicially presume that the considera
tion was corrupt ? or can the Court presume
that Wood was bribed by that note to fabri
cate false testimony ? Would not this be not
only Uncharitable, but unreasonable and un
just, in the absence eyen of any explanatory
circumstance ? But Russell, in answering the
charge of bribery, peremptorily denies its truth,
and affirms that his manager (Winn) had,
among other liabilities incurred by him in
managing the farm, presented him with an
account due Dr Wood for medical serviceSj
and also for a small sum loaned to him by
Wood: that, never having been able. to pay
that debt, he directed Stewart to adjust it by
note before he should require Weed to testify
to the facts ¦which he had 'learned thathe
could prove by him; and also to adjust a de
mand which. Dr. Smith held against him for a
large amount; and that Stewart accordingly
executed the note for $280 to Wood, but did
not settle Smith's debt because that was in li
tigation. Now Southard having made Rus
sell a witness, and there being no inconsist
ency or iraprobability in his response, it should
not be gratuitously assuraed to be false. It
is moreover not only uncontradicted, but in
trinsically probable. The medical account
for $120, with legal interest for about 21 years,
would, together with less than $10 loaned,
amount, at [the date of the note, lo $280. Dr.
Smith proves that Stewart did speak to hira
about settling his debt. This is corroborative
of the answer. And though Sraith did' not
know that Wood had rendered professional
services to Russell's numerous slaves while
under 'Winn's charge, he himself having been
generally their regular physician, yet it is
quite probable nevertheless that he did, as
Winn informed Russell, and as the latter
seems to have believed and acknowledged.
But, as before suggested, if Russell o'ved

Wood nothing, Stewart's note to him, even if
given to induce him to testify, would not
prove that he testified falsely or in what re
spect. It has been not very unusual, as in
the Gardiner case, to pay witnesses a bonus
for subjecting themselves to the inconvenience
and responsibility of proving the truth. In
its worst aspect, the utmost effect of this mat
ter would be to irapair Wood's credibility,
which cannot be done by a Bill of Review.
Our view of this matter, therefore, is: 1.
That an original bill could not set aside
the decree for the alleged subornation of a
witness. 2. That the sarae cause would be
insufficient to maintain a Bill pf Review, un
less the witness had been convicted of perjury,
and that it may be doubted whether oven con
viction would make a sufficient cause. 3.
That the bill in this case does not allege that
Dr. Wood's testimony Avas false, nor intiraate
in what respect; and that, therefore, on this
point it is radically defective and wholly in
sufficient. 4. That there is no proof that his
testimony was uiitrue in any particular, but
that, on the contrary, its perfect purity and
truth, in every essential matter, are strongly
fortified by the constancy and emphasis with
which, drunk or sober, in defiance of corrupt
combinations and strong teraptations to seduce
hira into renunciation of some portion of it, or
into some purchased or inadvertent declara
tion or admission inconsistent with it, he has
adhered to and reiterated the truth of it at all
times and under all circumstances. 6. That,
without Wood's testimony, the decree was
proper, and would have been just what it is.
6. That the object of the Bill of Review is to
irapeach Wood's credibility, which cannot
now be allowed, aud if allowable, has been
entirely frustrated, and would be unavailing
to bouthard had he succeeded in his purpose.
" The credit of witnesses is not to be im
peached after hearing and decree. Such ap
plications for an examination to the credit of a
witness are always regarded with great' jeal
ousy, and they are tobe made before the hear
ing." (White vs. FusseU, 1 V. & B., 151.)
There would be no end of suits if the indul
gence asked for in this case were permitted."
Livingston vs. Hubbs, 3 Johnson's Cham-
party Rep's, 127.
The other grounds relied on for opening the
decree are not entitled to, and therefore shall
not receive, as much, consideration as that of
the alleged bribery of Wood. But each of them
will be briefly noticed.
1. Champarty. This will, we presume, be
abandoned. It is clearly unavailable for three
reasons: 1. According to common law a cham
partous contract between Russell and his at
torney (Stewart) could not be pleaded by
Southard in bar of Russell's equity of re
demption. A Kentucky statute of 1824 pro
vides that any contract for carrying on a suit,
for land, in the adverse possession of another.
in consideration of "part or profit thereof,"
shall be unlawful, and shall subject to forfeit
ure, for the benefit of such occupant, the
claims of tha contracting parties to the laad.

390

SUPREME COURT IT. S.

Under this enactment, had the contract be
tween RusseU and Stewart been prohibited
by it, Southard might have pleaded the cham
party in bar of Russell's bill. But the con
tract was not prohibited by that statute. It
was not a contract for "part or profit" of the
land. Stewart had no lien on, nor any inter
est in, the land. His fee was to be paid in
money, and for enforcing it, he must have
proceeded in personam against Russell. Half
the value of the land was referred to only as a
measure of the contingent fee. Besides, as
the statute is severely penal, its operation
should not, by construotion, be extended be
yond the plain import of its words. And the
Appellate Court of Kentucky has invariably
constiued it as nof embracing or infecting with
illegality such acontract as that between Rus
sell and Stewart. See Wilhite vs. Roberts, 4,
Dana, 173; Blackerby vs. Helton, et al, 5 lb.,
523. 2. The statute does not apply because South
ard's possession, a^ adjudged by this Court,
was that of mortgagee, aud was therefore not
adverse. Castleman vs. Combs, et al T. Mon.
376; Bailey vs. Dickens, 5 B. Mon.,179; Gre
gory's heirs vs. Ford, et al. Ib., 472.
3. Had the contract been champertous, still
equity wouldnot, on Russell's application, dis
turb it after it had been executed — in pari de
licto potier est conditio defendentis. Nor, ou well
established principles, will a Bill of RevieAV
be permitted for the purpose of enforcing a
forfeiture in favor of Southard.
II. Thealleged discovery of Hancock's testi
mony, and of Oldham's as to Talbot's Alaba
ma property, and of a raistake, either by this
Court or by the witness himself, as to Dr.
Johnson's testiraony, are all plainly insuffi
cient. These three distinct allegations are all
in the same category. Each alike depends on
the question whether a discovery, after decree,
of new witnesses concerning matters previous
ly litigated and adjudged betAveen the same
parties is good ground for a BUT of Review;
for what was the value of the land conveyed
by Russell to Southard, and whether this con
veyance was a conditional sale or mortgage,
were the principal questions involved in the
original suit, and the testimony of Hancock
and Oldham applies only to the first, andthat
of Johnson is merely explanatory of his for
mer deposition as to the last of these litigate d
raatters. The foregoing citations conclusively
show that no such cumulative evidence by
witnesses is sufficient for upholding a Bill of
Review. " No witnesses which were or might
have been examined tp any matter on the Bill
of Review, unless it be to some matter happen
ing subsequent, which was not before in re
cord or writing, not known before. Where
matter of fact was particularly in issue before
the former hearing, though you have no propf
of that matter, upon that you shall never have
a Bill of Review." Hindes' Pra., 50; 2 Free
man, 31; 1 Harrison's Ch'y, 141. "This
Court, after the most careful research, cannot
find one case reported in which a Bill of Re
view has been allowed on the discovery of new

witnesses to prove a fact which had before
been in issue; although there are many where
Bills of Review have been sustained on the
discovery of records and other writing relating
to the title which was generally put iu issue.
The distinction is very material. Written evi
dence cannot be easily corrupted — and if it
had been discoy^ered before the formjr hearing,
the presuraption is strong that it would-have
been produced to prevent further litigation and
expense. New witnesses, it is. granted, raay
also be discovered without subornation, but
they may easily be procured by it, and the
danger of admitting them renders it highly
impolitic." " If, then, whenever a new witness
or witnesses can, honestly or by subornation,
be found whose testimony may probably
change a decree in chancery or an award, a
Bill of Review is received, when will there
be an end of litigation ! And particularly
will it not render our contests for land alraost
literally endless ? 'What stability or certainty
can there be in the tenure of property? The
dangers and mischief to society are too great
to be endured." Respass vs. McClauahan,
(fee, Hardin, Supra. " The rule is well settled
that, to sustain a bill for a review or new trial
at law, the evidence, if it applies to points
formerly in issue, must be of such a perma
nent nature and unerring character as to pre
ponderate greatly or have a decisive influence
upon the evidence which is to be overturned
by if." Finley vs. Nancy, Supra. " The^na-
ture of newly discovered evidence must be
different from that of the mere accumulation
of witnesses to a litigated "fact." Livingston
vs. Hubbs, Supra. Such is the familiar doc
trine to be found in the books sparsim, and
without authoritative deviation or question
since the days of ChanceUor Bacon. It con
cludes the case as to the discoveries we are
now considering. Besides they, when scruti
nised, amount to nothing which, if admitted,
could effect the decree.
Hancock's memory is indistinct and uncer
tain — see his affidavit and his two depositions
— all vague and materially varying as to facts
and dates. Moreover, he Ai^as not in Kentucky
between the first of July, 1827, aUd the date of
the conveyance from Russell to Southard. See
the deposition of WooUey, p. 194, and of Gen.
Jessup, p. 191. The same depositions prove
that Russell was not in Kentucky during that
year, until after the 8th of July. Consequent
ly, if Russell made au off'er to sell to Hancock,
it was since, and probably more than a year
since he conA'^eyed to Southard; and, there
fore, if he ever proposed such a sale, it was of
the equity of redemption, which was in fact
worth more than $5,000. The fact that there
is no proof of the same offer to Mrs. Preston,
as alleged, is confirmatory of this view.
HI. The fact proved by Oldham, that Talbot
sold his HuntsviUe property for $4,000, would
have been entitled to no influence had it been
proved before the decree. Talbot proved that
he considered Russell's land cheap at $10,000
— that, if he had had tha money, he would have
given that much in cash for it, and that he

SUPREME COURT, U, S.

391

offered him "$10,000 in Himtsville property
houses and lots." How much HuntsviUe pro
perty Talbot owned when, in 1827, he made
the offer, or how much it was then worth does
?°* f?S^?f' 'io^<ioes it appear when he sold
for $4,000, nor how much he then owned, nor
how much he had sold intermediately. Nor
is aU this very material; for his offer beine
$10,000 m HuntsvUle property, Russell, had
he acceded to the proposition, would have been
entitied to property worth $10,000.
Johnson's explanatory deposition is alto
gether immaterial. Having said, in his form
er deposition, that "Russell was to pay the
money in four months and take back his farm,"
he now says, that "if this expression implies
that Russell was compelled to pay the money,
it implies more than /intended;" and says that
his personal recoUection is, that Russell had
the jwwer or the right to repay the money in
four raonths and take back his farra." And
this impression, he now says, he derives chiefly
from the defeasance itself, as his memory "might
be treacherous."
Now does all this amount to any thing sub
stantial? According to all the authorities on
the subject, would not the words used in his
last deposition, as well as those in his first, be
constructed as prima facie importing a mort
gage? And can his own erroneous construc
tion of them change their legal effect? Did he
npt write his original deposition, was he not
closely exarained, and did he not carefuUy

insertingpurchase,soas to make it read re
purchase, instead of redeem. This is conclu-
sively proved by Clark, p. 1 4^2; by Sraith, p.
143; W Pope, p. 144; and, raoreoviwhy 4rfs
not the whole letter copied?
This lame and desperate effort, instead of
weakening, strengthens the grounds of the de
cree. If such, a letter was ever received bv
Wing, the fact that the word redeem was in
it shows that the parties understood that the
contract was a raortgage; and if the whole ex
tract was originally a forgery, the same fact
proves that Southard, when he had it pre
pared, used the proper word, redeem, without
knowing that there would be any equity of
redemption after forfeiture, and after Russel
had agreed to waive it- -and to show falsely
that he had waived it was doubtiess the ob
ject ofthe forgery— but finding, after the de
cree of this Court, that he was mistaken in
that, the word re-purchase Avas fraudulentiv
subsisted for redeera.
V. The Alabama schedule was known
and relied ou in the original suit, and could
not be useful for the purpose for which it is
charged in the BUl of RevieAv.
VI. "The failure to sell the land when offered
at auctipn could have uo influence — and if it
ever could, it coraes tpo late, as it ought to
have been, known by Southard during the
pendency of the suit to redeem.
Having thus presented an outiine of the

 J „.  ,  „.^ „^ ..„„ w„..„„^j facts of this case and of the principles which
prepare his answers? And does he not tacitiy should govern the decision of it, we will not
admit that he used and intended to use thej amplify by argument to make it ruore'manifest
than we presurae it already apnears to the
Court, that there is no plausible ground for
reversing tile decree dismissing the Bill of
Review. There is no complaint that, in the opinion
of this Court sought to be reviewed on alleged
discoveries of new proofs, there was any error
of law apparent on the face of the decree or of
the record. Nor is it pretended by Southard,
in his bill, that this Court erred in ils con
struction and application of the facts embodied
iu the priginal reccrd. He would not havo
been allowed to file a Bill of Review on any
such allegation had he chosen to make it 
Webb vs. PeU, 3d Paige's Ch'y Rep's, 368;
Dougherty and wife vs. Morgan's Ex's, 6 Mon.,
153. It would be unforensic and impertinent,
therefore to attempt by argument to vindicate
that ppinipn. Were it necessary pr prpper to
de so, we should expect to sustain it, beyond
aU question, on the grounds on which the
Court was pleased to place it, and on others
also which the Court viewed as superfluous in
a case so plain. The opinion as rendered is
even beyond the power of the Cpurt itself, ex
cept on some new and extianeous matter or
dpcuraentary proof, brought before it by the
Bill of Review, and of such a raaterial and
decisive character as to satisfy the Court that,
had it appeared in the original record, the
priginal decree ef the Circuit Cpurt wuuld

Avprds cpntained in his first deposition? His
only explanation now is, not that he did not
use or intend to use these precise words, but
only that he did not intend that they should
be construed as importing what this Court says
they legally raean — in other words, though
the Court says that they impprt a mprtgage, he
says that he dees not think they imply that
RusseU was bound to repay the money?
Surely this discovery can be no ground for
a Bill of Review: 1st. because there was no
mistake in the original deposition ; 2d. because
the discrepancy between that and the last one
is not raaterial; 3d. because the Court, and not
the witness, must decide on the legal effeci of
the facts proved, and the legal construction of
the words used; and 4th, because a Bill of Re
view is never allowed for the purpose of ex
plaining the testimony of a witness. Were it
permitted thc consequfences would be mon
strous. IV. Of the aUeged extract of a letter frora
Russell to Wing, dated December 19th, 1827,
there is no proof. It is believed to be spurious
and false. Thc purpose for which it has been
fabricated was to show that Russell's convey
ance to Southard was not a mortgage. The
latter, as exhibited, commences with this sen
tence: "You raay say to Southard that I shall
not RE-PURCHASE the estate." If any such
letter had ever been received by Wing, redeem,
and not re-purchase, was the radical word. —

The extract itself, since it was first written, have been affirmed, instead of being, asit was,
has been altered by obliterating deem, and reversed.

392

SUPREME COURT. U. 8.

No such matter or proof, as we insist, is pre
sented. On the contrary, the record of the
Bill of Review only strengthens the grounds
on which this Court decreed a reversal.
1. Wppd's veracity has been placed beyond
question by the triumphant manner in which
it passedj'uot only unscathed, but emblazoned,
through the furnace to which Southard ven
tured to subject it.
2. Chambers, (page 183-4-5,) a new wit
ness, proves that D. R. Southard is a man of
bad character, not to be believed on oath —
that James Southard was exacting and over
reaching in his contracts, and a usurer — that
he traded chiefly on D. R. Southard's capital
— that said James boasted of his bargain
with Russell — said that the claims he had as
signed to Russell without resource were on
men of doubtful solvency — that though he
said he had bought the land, yet at the same
time he said also that RusseU had a right,
within four months, to "redeern" — and that he
was disabled from doing so by the loss of his
cotton crop and gin.

3. BuUit, (p. 101,) Speed, (p. 102-3,) Bal
lard, (108,) — all men of high character, testify
that D, R. Southard's character for veracity is
bad. These, too, are all new Avitnesses.
4. Southard's conspiracy to seduce WOod
by a combination with Deering aud others, his
offer of bribes, and, after usisg Deering, }iis
suicidal attempt to destroy his own tool's
character, afford a sample of his false conduct
towards Russell, and of the fraudulent manner
in which he prepared this and the priginal
case. And in this cpnduct of this bold, reck
less, and persevering litigant, the Court finds
an apposite and persuasive illustration of the
wisdom of the rules established, as we Ihink,
by the authorities we have cited, for regula
ting Bills of Review.*
GEO. ROBERTSON,
0. S. MOREHEAD,
*The Court affirmed the decree, df dismis
sion.

PRELECTION.

A lot of 20 acres of land, in the city of Louisville, having been di
rected to be sold, by a decretal order, for paying a debt of about $400,
which had devolved on the owners, who were all infants — Bainbridge, as
thier volunteer friend, made a private contract with John I, Jacob,by wliich
he was to have the whole lot &r $800 — but, as a sale of more of the
ground than would pay the debt would be illegal and void, they agreed
also that Jacob should, ostensibly, buy the whole for the debt — which waa
accordingly done — and the Commissioner having reported that no per
son would pay the debt for a less quantity, the Court, ijgnorant of
the facts, confirmed the sale. A Bill filed by the Heirs to set aside the
sale was dismissed by the Circuit Judge, and the CoUrt of Appeals having
affirmed the decree, the following petition was filed for a re-hearing.
But it was overruled bub silentio.
SO

COURT OF APPEALS.

> Petitia

SIMRALL'S heirs, '
vs. > Petition for re-hearing.
JACOB'S heirs.

The opinion delivered by Judge Hise in this
case, as the judgment of this court, professes
to recite all the material facts "precisely" as
the record exhibits them. Instead of doing
so it has omitted essential facts on which we
relied with more confidence than on everything
else. The omitted facts were, we presume,
overlooked, and not considered by the court.
The facts to which we allude are: 1st. Those
cpnducing to show that, had the land been
sold withput the interventipu of Jacob, one
half of it, at the utmost, would have satisfied
the decree. 2d. Those conducing to show
that Bainbridge would never have permitted
more than about half of the land to be sold
uuder the decree; and 3d. Those shoAving that
money enough to satisfy th&decree would have
been obtained by loan or by the sale of slaves
or other property before Bainbridge would
have permitted a greater sacrifice than was
raade by his agreement with Jacob.
The opinion assumes that, if Jacob had not,
by his private agreement with Bainbridge,
agreed to pay $800 for the whole lot, it could
not have been sold for raore than the amount
of the decree ($457,) aud Avould have been
thus sold. The only reason assigned, or which
could be imagined for that conclusion, is the
fact, that, at the mock sale made by the com
missioner, Jacob bid the amount of the decree
for the entire lot, and no person bid that much
for less than the whole! With due respect
we may say that this fact, when analyzed,
leads to no such conclusion, and that other
facts, not stated and probably not considered
by the court, make it altogether improbable
and unreasonable. If the fact that no person
bid against Jacob could authorize the deduc-
tipn that, had ho made up private purchase,
still he wpuld have bought the whole lot for
the amount of the decree ¦mthout any compe
tition, this court raust have erred exceedingly
in not tolerating a like inference from the same
facts in Wilson's v. Wilspn, &c., 9 B. Monroe.
Bainbriuge proves that itwas with hesitancy
aud reluctance that he finally consented to let
•Tacob have the lot for $800 — he certainly
would not have taken less. He aud Alexan
der Pope, both Avealthy men, had offered to
borrow, on their O'wn credit, money to satisfy
the decree; and, scarce as money may have
been, there could be no doubt that their en
dorsement could have procured the loan of

enough for the exigency. Moreover, Bain
bridge proves that Simrall's heirs and admin
istrator had several valuable slaves and other
personal estate. The inference frpm these in
disputable facts, all of which seem to have
been overlopked by the cpurt, is, that either
Pther prpperty weuld have been spld tP pay
the decree, or, that Bainbridge and Pope
would have procured the amount of it by loan;
or that, if a decretal sale had been fairly
tried, Bainbridge weuld not have permitted
the whole lot to be sacrificed for $457.' That
the whole would not have been sold is not
only rendered almost certain by sorae ef the
fpregoing ccnsideratiOns, but is made quite
sure by the fact that Jacpb gave $800 fpr the
whole, and consequently would certainly have
given $457 fpr something less thau the whole
of a lot which sold for $6,000 in 1818, and
Avpuld npw sell fpr $150,000. But Jacpb
having agreed Avith Bainbridge tp give $800
fpr the whple, prpvided it shpuld be formally
knocked off to him by the commissioner for
the amount of the decree, Bainbridge would,
therefpre, neither borrpw the mpney, ner raise
it by the sale of other property, nor bid against
Jacob, nor, if he cculd prevent it, permit any
other perspn tP bid against him. He testifies
that, after he had made the final arrangement
with Jacob, he considered the land as seld and
could not have made or sanctioned any other
dispositibn or sale of it. Aud he also testifies
that, at the commissioner's ostensible sale.
Dr. Wilson, with whom he had tried to ne
gotiate a private sale, inquired of him whether
he had effected any such sale, and he repUed
that it was all arranged with Jacob, and that,
thereupon, Wilson left the ground. This fact
probably prevented others, as well as Wilson,
from bidding, as it should be presumed to
have beeu kno^wn to others, especially all who
were present at the sale and whom Bainbridge
would, of course, not allow to bid, because
competition would frustrate the arrangement
with Jacob. This seems to be all morally
certam, but it is neither noticed in the opinion
nor could, we apprehend, have been consid
ered by the court. Hence, we feel authorized
to say that, without facts and against conclu
sive facts, the opinion assumes that, had not
tha arrangement been made with Jacob, the
whole of the lot would "probably" have been
jsold to satisfy the decree. And had none of

SIMRALL'S HEIRS va. JACOB'S HEIRS.

395

the foregoing considerations appeared, not
only would there be no sufficient ground
for the assumption, but it would be crushed
hy the tacit admission, by Jacob, of the alle
gation that, without his interference, half of
the lot or less would have satisfied the decree.
Under our Code of Practice that ailegatipn
should be taken fpr cpufessed; and the sarae
censequence would result from the application
of the coraraon laAV principles of equity. An
answer must respond to every raaterial allega
tion explicitly and without evasion. Story's
Equity Prac, sec. 852. If the fact charged
be within the respondent's personal knowledge,
he must answer positively, unless the fact be
so ancient as to authorize the presumption that
the respondent's raemory of it has beccrae dira.
Lord Clarendon fixed seven years as a peried
beyond -v^hich the meraory should not be re
quired or presumed to go. But beyend that
time the answer to an allegation once within
the respondent's perspnal knowledge, though
it need not be positive, raust state expUcitly
and fully his "heUef." Ib. sec. 854-5, and
notes. The. same authority shpws that, when the
fact alledged had never been within the resppn-
dent's knowledge, he must respond fully and
directly as to his belief concerning it; and that
in any of those aspects of the case, silence is
taken to be an admission of the fact charged,
See 5 Dana, 80; 7 Ih. 295; 3 B. Monrpe, 13;
R. 185; 4 Ib. 488.
In- this case it shpuld be presumed that Ja
cpb knew whether, at a fair public sale, unaf
fected by any private arrangement, less than
the entire lot would have satisfied the decree,
because he certainly knew whether he himself,
would have bid the amount of the decree for a
portion of the lot. But, as to that allegatien he
is dumb — ^he deesnet evenintimate any opinion
or belief A general denial "of all other alle
gations," not responded to, wpuld be up re-
spense. Story, sec. 852, supra. But Jacob
did not make even suoh denial, he pnly said
thathe required prppf pf the allegations he
had noticed, "as he does of all the aUegatipns
upt herein admitted." The fact that half pr
less of the lot would have seld fpr the ampunt
pf the decree shpuld cpusequently be taken as
admitted by the answer of Jacob. But the
court does not appear to have noticed even
this important, and as we think, deoisiA'o mat
ter! On a full and careful cpnsideration of the
fpregoing facts, we cannct think that this
court would have said or could now say that
itwas probable that, if Jacob had not made
the arrangement he did, the whole lot wpuld
have been seld for npt mpre, and perhaps less,
than the ameunt of the decree— ncr can we
believe that the cpurt could faU to ccuclude
that either nc part of the let would haye been
sold, or that half or less of it would haye sat
isfied the decree, had not Jacob intervened

with his secret, and hard, and unlawful ar
rangement. But the indefensible assumption we have
been combatting seems to be the pivpt pu which
the judgment of affirmance turns; consequeutly
we have reason to hope that a reconsideration
of the case will plant a very different fulcrum
on which up Pther than an essentially different
judgraent can rest.
The cpurt virtually concedes, as every en
lightened tribunal must ccncede, that ths cpm-
raissioner's sale was void, and that, conse
quently, Jacob acquired and held the lot in
trust for the original OAvners, who were infants,
and never did anything tP estpp them tP assert
their equity or omitted to do anything neces
sary for maintaining it*.
'Then unless, as assumed iu the opinion, the
purchase by Jacob was, in fact, beneficial
rather thap injurious to the infants, on what
possible or imaginable ground shall they be
denied the privilege of asserting their bene
ficial right and of obtainihg, at .last, the en
joyment of it.
It cannot be on the ground that the proof ii
insufficient to show that Jacob gave more thau
the araount of the decree for the lot; because
Bainbridge's testiraony to that effect is not
only unirapeached and uncontradicted, but is
intrinsically credible, is fortified by the cotem
poraneous letters aud accounts found among
the papers of Mrs. Simrall, and is made
cpnclusive by the character of Jacob's answer
not denying the ailegatipn, butprpfessing npu-
recoUection of a fact which he could not forget,
and had recited to another witness just before
this suit was instituted.
Nor on the grpund that the sale, as made,
was ever ratified by Sirarall's heirs; because
they knew ncthing abput the cputract, were
incpmpetent tP bind themselves, and neither
did npr pmittedtP do any' act whereby ratifi
cation or estoppel, express or implied, could
be tortured by the court. Nor on the ground
that the heirs received and enjoyed the excess
of price over the araount of the decree; because
it was not appropriated, as Bainbridge desired
and advised, to the improvement and preser
vation of their estate, but was paid to and
consumed by their mpther in fractiens during
twp years after the date pf the sale; and net
pnly is there np prpof that the expenditure
was to their use, but there is no reason for
presuraing that it was, and especiallyas there
is not eveu an allegation or intimation in the
record that it was. Besides, the fact, if reUed
on, ought to have been Utigated and might
have been estabUshed, and even then should
not deprive them of their land spld without
their knowledge or cpnsent; because if, during
infancy, they had censumed the prpceeds, they
did not' know it, and a Uen on their land for
the araount would be the utmost equitable cen-_ ,
sequence as against them, unless, since the
period of their infancy, there had been some
act of implied ratification, for presuming

iW

SIMRALL'S HEIRS vs. JACOB'S HEIRS.

which there is no pretence, as the facts show,
as far as such a negative is susceptible of being
demonstrated, that they did not know, until
jnst before the bringingbf this suit, either that
Jacob had bought the lot for $800, or even
that it had been their property, or sold as such.
Jacob's answer would alone be sufficient for
their purpose: by not responding to the
allegation of ignorance and non-discovery he
admits it, as decided in the analagous case of
Wilson V. Wilson, &c., 9 B. Momroe. But,
in addition to the admission in the pleadings,
the facts proved aud the intrinsic probabilities
resulting ought to be alone conclusive on this
point. Nor, consequently, on the ground of tirae.
There never was a case in which the facts
proved more clearly ignorance and non-discov
ery, and more satisfactory reasons why the
discovery, flnally made from an accidental
clue, was not aud'could not have been raade
sooner than it was. Moreover, Jacob will be
a gainer, rather than a loser, by the lapse of
time, especially if he shpuld be required tP
surrender only half the spoil, the other half
alone making a stupendous speculation. —
There can be no possible doubt, as this court's
opinion seems to admit, that Jacob illegally
bought the whole lot for $800, without the
authority of the infant owners, and without
their consent or knowledge; consequently they,
and not he, might complain of time and its
consequences. Nor on the ground that the commissioner
was not apprised of the private arrangement
between Jacob and Bainbridge as the volunteer
friend of the infants. It is altogetner proba
ble that the commissioner knew that such an
arrangement had been made, and that Jacob,
who could not attain his object unless the com
missioner should sell the whole lot for the
amount of the decree, comraunicated to hira
the fact that he had agreed, in that event, to
pay $800. But it is perfectly immaterial
whether the commissioner had knowledge of
the agreement or not, the sale was equally
Ulegal and void in either aspect of that fact,
and can derive no actual vaUdity either from
the commissioner's report of his official acts or
'from the approval of the court, which was a
matter of course without any knowledge of
the hidden fact which made an apparently legal
sale Ulegal and void.
Nor on the grotmd that actual fraud is not
estabUshed. Many circumstances conduce to
ghow such fraud on the part of Jacob; but, not
needing any such resource, we will not dwell
on that matter. The undoubted facts show
that the sale, as reported, Was not the true
sale, and was made illegal and void by the
private arrangement which controlled and
produced it. This was certainly, at least, a
constructive fraud on the infants, on the law,
and on the court; and had there been no con-
ttmctiTe fraud, a trust resulted front the ille-

gality of the whole arrangement, if all had
been done with the most pure good faith. A
sale of more land than was necessary to satisfy
the decree was unauthorized and void; the
actual sale was of the whole lot, andfor exactly
the amount of the decree; had net the private
and unauthorized sale of the whole lot fpr up
more than the decree required been raade, either
ncne of it, or nPt mpre than abput half pf it,
wpuld have been seld. Bainbridge had no
autherity tp bind the infants. Jaccb knew
this, and, while he was mere than willing to
get the whple let fpr $800, he knew aisp that
the pnly way tp effect the pbject was tP agree
secretly tP give that sum fpr the whple, refuse
tP buy less, and secure a surreptitipns title by
a formal sale by the coraraissipuer tP him for
the araount of the decree without corapetition.
His illegal arrangement with Bainbridge se
cured and effected this — there was no rival
bid because itwould have been unavailing, for,
had ahy person ventured to bid the amount of
the decree for less than the whole lot, Bain
bridge, considering hiraself bound to Jacob,
would not have permitted a sale of part; and
consequently there must either have been no
Sale or Jacob raust have been the purchaser of
the whole lot for the amount of the decree as
agreed and effectually pre-arranged. It can
not, we think, be possible for the court, en a
review ef all the facts, te adhere tp the sugges-
tipu in the epiuipn that the arrangement be
tween Bainbridge and Jaceb was raerely hy
pothetical, and should not be presumed to
have influenced the official sale , under the de
cree. Had this been so, why was the private
contract made? If, without some such arrange
ment, Jacpb cpuld have bpught the whole of
the lot fpr the amount of the decree, why did
he agree to pay nearly double that sum? Tha
ansAver is obvious and inevitable: the private
contract was the sale, and secured, as was in
tended and arranged, the raere foi-m of official
sale of the whole lot to Jacob for the araount of
the decree. How then could it ever be re
peated by the court that it is not probable that
the contract for the whole lot at $800 had any
influence on the sale, and that, if that arrange
raent had never been made, it is probable that
Jacob would have bought the whole for $457,
or less. The court did not thus assume or
reason in Wilson's heirs v. Wilson, &c., 9 B.
Monroe. Not only was the private sale intended to
prevent a public sale of a fraction, but it pre
vented Bainbridge from borrowing the money
or selling other property, and corapelled, him
to sell the \A-hole lot and nominally for pnly
the arapunt pf the decree, without the privilege
of bidding against Jacob. The case is, there
fore, just such in principle as it would have
been, had Jacob bid $800 at the commission
er's sale, and induced a repprt that he was the
highest and only bidder, and became the pur
chaser of the entire lot for the amount of the
decree.

SIMRALL'S HEIRS v«. JACOB'S HEIRS.

S»7

But the court, in its opinion, seems very
properly tP repudiate every pther ground fpr
the affirmance than the assumptipu that Jacpb
was fairly the highest and only bidder, and
would have bought the entire lot for the amount
of the decree or less, had he made no contract
with Bainbridge. And if this be untenable,
a> it appears clearly to us to be, we cannot see
how a change of the opinipu and a reversal
of the decree of the circuit court cau be rea
sonably or consistently avoided. That ground
being removed, the case, in its best attitude for
Jacob, is one of implied trust resulting to in
fant heirs from an Ulegal and void purchase of
their land without their knowledge or sanction,
and which trust the court, on their application,
must enforce unless they had done something
which renders it inequitable. It is not alleged
by Jacob, or intimated by his counsel, that
those heirs have done any such thing them
selves, or that any other person, who had
authority to act for and bind them, has ever
done any such thing. Then the case is a plain
one on general and well established principles
of equity, and which have been recognized by
this court in Wilson's heirs v. Wilson, supra.
The opinion delivered in that case settles
this; and in our judgment both ppinipus cannct
stand as exponents of the law of the land.
One of them must be wrong. Though the
facts of the two cases may be, in sorae slight
degree, circurastantially (Ufferent, yet, in prin
ciple and everything else essential, they run
ou all fours together, and are substantially
identical excepting only in tAvo particulars,
which make this a stronger case for relief
than that in 9 B. Monroe. In the case pub
lished there may have been actual fraud. But
this difference, if existing, would be immate
rial, for trust resulting from illegality would
he as effectual for relief without, as it would
be with the incident of actual fraud; and this
is virtually decided in the reported case, which
recognizes the doctrine that the trust resulting
from an unauthorized private sale of an entire
tract of land for a much larger sum than that
for which a sale of as ranch only as should be
necessary to pay an adjudged debt was decreed,
and a pubUc sale, pro forma, ofthe whole tract
for the araount decreed, for the purpose of
confirming the private sale, was a sufficient
ground for setting aside the sale and restoring
the land on equitable terms to the outraged
infant owners. See p. 276-8 and 280. In
that case, although the commissioner may
have kno-mi that Hicks, the only bidder at his
sale, had made a contract with two of the
adult owners of the land for paying a rauch
larger sum than the amount of the decree, and
by which contract it was understood and in
tended that he should buy the whole tract
under the decree and for the decretal debt, yet
itwas neither alledged nor should be presumed
thatthe commissioner did not allow reasonable
time for other bids, or in any way, acted un

full aud fair competition. And therefore, and
because also the comraissiouer had no interest
in the sale, and both he and Hicks (the pur
chaser) may have understood (as they averred
that they did) that the residue of price given by
the private contract was, after satisfying the
decree, to be applied to the payment of other
debts exceeding in amount the real value of .
the land, and for which it was liable, ths court
exonerated the commissioner frora liability
and decreed relief in favor of the infant heirs
agaiust Hicks, and on the ground of trust, as
the opinion will undeniably show. After de
ciding that a bona fide purchaser from Hicks
was not responsible, the court, in that opinion
says: "Hicks — whether he be regarded as a
fraudulent purchaser or as vender who violated
his tmst by selling the land, is, in either case,
personally liable for the injury which he has
done to the complainants. Having received
and enjoyed, and sold the very property to
which the complainants were entitled, and in
violation of their rights, he cannotprotect him
self against the consequent liability on the
ground, however true, that he supposed the
land was liable for the debts which he agreed
to pay, aud that the arrangement by which it
was subject to them, though irregular, was not
unjust or injurious. It was his duty, as the
person acquiring the property, to know that
the facts existed to relieve his conduct from the
charge of flagrant injustice and injury, aud
to take care that the price paid by him was so
applied as to effect the equity Of complainants"
— that is to the payment of other debts for
which the same land was liable. This proves
that tmst alone arising from an illegal con
tract, however honorable, was sufficient.
To show that, without actual fraud, the case
was oue of resulting trust, the court had pre
viously said in the opinion, "as it is entirely
certain that the land was not purchased for the
sum of $42, reported by the commissioner,
but for a rauch larger sum admitted by Hicks
to have been paid by agreement with Joseph
Wilson and others, it is obvious that, while the
coraraissioner's sale for $41 was used as the
raeans of passing, the legal title in apparent
corapliance with the equity of the complainants
aud their co-heirs, and apparently in extin-
guishraent of it, the real purchase was for a
much larger sum, and by private or indi
vidual arrangement. The real subject of
the private;' as well as the pubUc sale, was
the equity of all the heirs which was perfect,
except for the charge of $41"— page 276.
The opinion theu puts the illustrative question,
whether, if, instead of the private agreement
which was made. Hicks had agreed with an
opposing bidder to give him the same sum not
to bid agaiust him, "he ¦would not hold the
land in trust for the owner, except to the ex
tent of the ostensible sum for which it was
sold under the decree?" And then adds:

fairly at the sale, or did anything to preTent\«Hicks hemg apprised of the equity ofthe

SSS

SIMRALL'S HEIRS W. JACOB'S HEIRS.

heirs, (that is, to all the land which should
not be necessary to pay the decreed debt,)
could not, by any agreement with such of them
as were present, extinguish the equity of those
who were absent merely on the ground that
they were co-heirs, and much less ou the
ground that they were infants. He could not
fairly extinguish their equity except by pur
chasing it from them or their agent, and he
could not repell it except by some fair claim
against the land, or at least against them per
sonally. If he intended to acquire the interest
ofthe absent heirs by the arrangement with Jo
seph Wilson, (their brother,) he did not ac
quire it any further than the acts of Joseph
were authorised or ratified by the ethers."
Again, on the next page, the court says: "Un
der these circumstances we cannot doubt that,
if Hicks had retained the land, the complain
ants would have been entitled to reclaim their
respective interests in it subject only to the
proportioned burthen of $41."
And finally, on page 380, in disposing of
the lapse of time, (15 years,) the court said:
"And, as upon the pleadings, it is to be as
sumed as against him (Hicks,) that complain
ants had discovered the fact and their rights
but a few mouths before the filing of their bill,
and, as iu cases remediable iu equity alone on
the ground of fraud or tmst, tirae dees net ran
as a bar until the facts for constituting the
fraud or trust are known or should have been
kuo-wn to the party injured; aiid, as in' this
case, it does not appear that there was any
circumstance kno^wn to the complainants which
would have led thera to such inquiry as would
have put them in possession of the facts which
oceurred during the infancy of at least six of
them — we are of the opinion that neither the
statute of limitations nor the lapse of time can
operate as a bar to their claim."
It is evident that the leading aud decisive
principle by which this court was led to adjudge
Hicks, as purchaser for the araount of the de
cree at the coraraissioner's sale, liable to the
infant OAvners, was that — as he, in fact, by an un
authorized private contract, gave a larger price
estimated as the value of the entire tract, and
which shoAved that more was sold by the cora-
missioUer than he was authorized to sell or
would probably have sold had there been no
such private sale, and that, therefore, the in
fant OAvners, who were not bound by that pri
vate contract, still retained their equitable
right — consequently the purchaser thus, acqui
ring' the legal title held it by an implied tmst,
to their use. In applying that principle to
the facts of that case, the court only reccgnized
a leng and well established dectrine of our
equitable jurisprudence. That was undpubt
edly the grpund pf the decisicn against Hicks
and adjudged, as itself alpne, a sufficient ground
even if actual fraud had been art additional
ground. Then, so far as Simrall's heirs claim
relief in this case, in what essential feature
does it materially differ from the case in 9 B.

Monroe? The difference between the amount
of the decree and that given by the private
contract was greater in the latter than in our
case. But that circumstance has no effect on
the principle which equally applies to both
cases. And in some other respects, as already
asserted, our case is stronger against the pur
chaser than the case reported: 1. In oijrs'a
stranger made the private and attended the
public sale as a volunteer friend of unconscious
infancy; in the other, an adult brother and
joint owner made the private sale and at
tended the public. 2. In the reported case
the purchaser was informed and probably be
lieved that the whole amount given by him
was to be applied to the payment of debts for
which the land was bound, and which, at least,
equalled its value, and mays therefore, have
believed a sale of the whole tract would be
necessary, and that, consequently, the infant
owners would be benefited by his private pur
chase at once pf the whple; but in our case
Jacpb had np such equitable excuse — he knew
that a sale pf rapre than half of the lot would
not be required, aud that nearly half the sum
he gave for the whole of it would be paid to
the widow, to be used aud spent as she might
choose. And if, in one case the private con
tract bound Joseph Wilson and prevented
hira, as probably others, from bidding at the
public sale, in the other case the private sale
bound up Bainbridge, and certainly prevented
him, and alraost as certainly others, from
bidding against Jacob at the decretal sale. In
the case cited from 9 B. MOnroe, the court also
decided that it was incumbent on the purchaser,
as in every case of constructive fraud, to prove
satisfactorily some sufficient ground for barring
the resulting equity. Then, to shpw such re-
pellant grpund, the burthen of proof de
volved on Jacob. He has furnished no such
proof. Then how can it be said that the principle
of the decisipu in B. Mpurpc is inapplicable to
our case? We have uo doubt that the reported
decision is right; aud if it be, we cannot pos
sibly see how the ppposite decision in our case
can be right.
And as to the lapse of time also, our case is
much stronger than the other against its op
eration. In the latter there was nothing but
infancy, and the constractive admission, by
the answer, of the alleged non-discovery. In
ours the same reasons are conclusively forti
fied by the nature of the case and by several
additional facts indisputably proved.
Wherefore, as counsel for Simrall's heirs,
the undersigned feel constrained to ask the
court for a re-argument and thorpugh recon
sideration of this case; and, while they most
earnestiy desire, they cannot but confidently
hope, that their petition ¦will be granted, for
the foUoAving principal reasons:
1. Because they desire, and the case emi
nently deserves, a carefUl investigation and
deliberate decision by a full court— only three

SIMRALL'S HSIBS va. JA COB'S HEIRS.

399

of its members participating in the opinion as
rendered. 2. Because, for reasons herein suggested
and others which would be urged in a re-argu-
gument, they believe, and, ¦with becoming re
spect, declare that the decision sought to be
re^viewed is radically wrong, is inconsistent
¦with the principle of a former decision ap,
proved by the country, and is founded on

5. Because — as the most ilUustrious old
Judges of England commended their decisions
and harmonized the law by their prudent habit
of disregarding the false pride of prompt and
infallible judgment aud considering only their
judicial duty and reputation, and therefore
patiently, and even anxiously, re-hearing new
and important causes until they were perfectly
satisfied — so this court, by following that safe

deductions not only unsustained by the facts I and wise example in such cases as this, would
stated in it, but effectually repelled by other relieve itself of all unquieting apprehension of

facts not stated and probably not noticed by
the court; and they, therefore, respectfully
suggest that, should the court even adhere to
the same judgment, it is due to the parties, to
the court, and to the Kentucky bar that the
judgment should be accompanied by a state
ment of aU material facts as appearing in the
record, aud should be made to rest on some
other, and more tenable and consistent ground
than that on which the late opinion seems to
place it.
3. Because, with equal confidence and re
spect, they believe and declare that these two
decisions, so antagonistic in effect, are based
upon a perfect parallelism of principle and
essential facts, and cannot, therefpre, beth
stand; and that, consequently, the dignity of
our jurisprudence and the authority of our ad
judged cases wpuld be prpmpted by such
changes pf the one now within the power of
the court as to make them appear to harmon
ize on the facts as they really are.
4. A reconsideration and decision by all
the Judges will make its final opinion; what,
ever it shall be, more authoritative, more sat

isfactory to the nnsuccessfiU party and to the I'l^^ o*^'';
profession, and doubtless far mere satisfactory |
to the court itself. I

judicial error and injustice, and would greatly
commend its OAvn decisions, exalt its own
character, and ensure that general confidence
and respect which the public interests require
that a court of the last resort should comraand
and possess. Moreover a reOonsideration can
do no harm, aiid may do much gppd; for, if
it shall only confirm the opinion delivered, the
result will be more satisfactory aud the decision
more authoritative; and, if it should lead to
any essential change in the opinion, the court
wonld be rescued from the possible imputation
of hasty, error, and would probably rescue
suffering litigants frora injustice.
6. Because the decree of the court raay be
consistently reversed in such raaUner as to
leave Jacob ahandsome speculation on his little
.investment, and, at the same time, secure to
Simrall's heirs a very comfortable portion of
that patrimony of which, by an illegal act, he
has BO long deprived thera. And surely, iu
such a case, if the court should be perplexed
with doubt, it ought to incline to a decision so
harmless to the one party and so beneficent to

ROBERTSON & MOREHEAD.

PRELECTION,

Having been elected three times successively to the House of Represen
tatives of the United States from "the Garrard District," Mr. Robertson
resigned the whole of his third term, and made the following Valedictory
Address to hig constituents through "The LUMINARY," of the 11th
May, 1821.

VALEDICTORY ADDRESS.

To iht Electors of the Seceiith
Congressional District of Kentucky;
Felloav- Citizens — I have this day re
signed ray seat in tho Congress of the United
States. This I cpnsidered proper, after the
most grave and deliberate reflections ou ray
duties to you, and to those to Avhom I ara bound
by other and raoro sacred ties; and I hope you
will believe that I have not taken this course
from motives pf interest or convenience, nor
withput the raost respectful attention to your
claims on ray services, and a becoraing
sense of gratitude for your kindness and in
dulgence. If my circumstances and private
duties would have permitted me to consultfree-
ly my oavu inclination, I would have remained
in your service as long as my conduct sliould
obtain your approbation and your suffrage.
No situation under the Federal Constitution
could present as many attractipns to ray taste,
my patriotisra, or ray ambition, as thc one
which IliaA-e uoav abandpned; and np ordina
ry cpusideratiou could have induced me to re
linquish it; but the health and condition pf
my family — their increasing claims On my care
and attentipn — and circumstances of business
and fortune, left me no prudent alternative.
I determined, therefore, after jsome hesitancy,
and the mpst anxipus endeavprs to ascertain
my duty, to retire from a statipn in which
I belieyed that I cpuld npt much longer con
tinue Avithout a violation of the most sacred
and parampunt duties. And haA'ing formed
this resolution, I considered it my duty to ex
ecute it without longer delay, for the purpose
of giving you sufficient tirae to select Avith fuU
discretion a successpr, and Avithput unnecessa
ry inconvenience, at the next annual election
of State Representatives. Iliope thatthe tirae
which I have given you Avill be araply sufficient.
I wpuld have given ypu even raore, if I had
not felt it my duty tP give a respectful cpn
sideration to tlie ppinions and solicitations of
friends. When you duly appreciate the motives
which, (and which alone) influenced rae on
this occasion, I have thc fullest confidence,
from the liberality and indulgence with Avhich
you have ahvays considered my conduct, that
you Avill approve my resolution, and acquiesce
Avithout censure, in my decision. It is under
this hope, and for this purpose that I now, for
the last tirae address you. It is, I assure
you, Avith reluctance and regret, that I leave
your service; reluctance produced by a recol
lection of the strong obligations to serve you,
which your repeated acts of favor have iraposed
on me; and deep regret resulting frora the
nature of the circurastances constituting tho
51

necessity which has controlled my decision.
But, araong the raany erabarrassments Avith
Avhich, in coming to this decision, I have
been perplexed, I have derived gratification
and encouragement from the conviction that,
if my services could, at auy time, be con
sidered of any value, thore is nothing in the
present cpnditipn pf the , ccuntry th.it cpuld
ppppse my retirement new; and that all the
circumstances cf the time 1 have selected, are
as favprable te it, as any that raight ever
occur. I am happy on this occasion in being
able. to congratulate you ou the enviable con
dition of our country in all its great interests
and relations. Never did more tranquility,
peace and concord pervade the Union than at
this moment; and never Avas there, in any
cpuntry in my opinion, less necessity for na
tional legislatien. I believe that the less avc
legislate, under existing circumstances, the
more avc shall consult the substantial and per
manent good of the community. If avc rely,
as becomes us, on our physical and moral ca
pacities for the principal means of happiness
and cprapetence — if avc encpurage industry,
economy and public spirit, and by a liberal
.and diffilsive system of educatipn, literary and
mpral, bring intp useful pperatipn the latent
energies pf thc rising generaticn — if we will
adppt and inculcate enlightened, liberal and
elevated netions of goyernraent, and of tho so
cial, religious and pplitical rights and duties —
such is tho benign genius pf our institutions,
and such is the happy posture of the affairs
that concern our welfare as a nation, that Ave
may reach the proudest destiny Avith Avhich
hope has ever flattered us, Avitliput the cpn-
staut multiplication of laAvs, or an habitual
dopenpence on thc supposed magic of legisla
tion. All things duly considered, we have
very little cause of despondence or complaint,
and much of exhiliration and mutual felici
tation. Never, (I believe,) could the people
of thc United States say Avitli more sincerity
and truth to the national legislature, "LET
US ALONE." The most prominent circum
stances, international and domestic, Avhich
have for some time agitated our counsels, and
menanced the harmony and integrity of the
Union, having been satisfactorily arranged
during the last session of Congress, the pros
pect before us for years tP corae, in the most
comprehensive survey, presents, iu the great
outline of national prosperity an encouraging
view, and antherizes the mpst animating
hppes pf the Ipugevity of our iustitutions, and
of the independence and happiness pf pur peo
ple. I am happy, therefore, in believing, that
if, under any. circumstances, my feeble talents

402

TALEDICTORY ADDRESS TO THE CITIZENS OE THE

and the little experience which I may have'
acquired in national legislation, could be con
sidered by my warmest friends of any advan
tage tp ypur rights, ypur interests, or your
hpupr, the auspicicus circurastances under
which I retire, diminish their utility so much,
that whether I reraain longer in ypur service
pr npt. becqraes pf very little cencern, except
to myself, especially as you Avill have no diffi
culty iu finding others willing and able to
serve you, who have stronger claims on your
confidence and favor than I can have any
hope of possessing or deserving to enjoy.
In taking leave of you, I have the satisfac
tion of a strong assurance tiiat, whilst in your
service, I have done my duty. I know I
honestly endeavored to do it, by an undeviating
adherence to those maxims of public policy
and public duty which my OAvn judgment and
conscience recomraended to rae as best adapted
to promote the honor of the government aud
the good ofthe people; disregarding as far as
possible, personal and local considerations.
Many could have served you more ably, but
none more faithfully. That I have frequently
erred is probable, but I flatter myself that my
errors were venial; and I am proud in being
able to say thatl have no recollection of having
been reproached either by you, or a disappro
ving conscience, with any aberration from
the principles of political rectitude, or any de
reliction of public duty. My public life has
been snort and hurable; it furnishes no
incidents to flatter pride or gratify ambition.
If in the stormy and difficult times m which it
was spent, it has been disinterested, firm and
straight-forward, I shall have fulfilled in its
results, all my expectations, and have de
served as much commendation as I have ever
desired. If, in reviewing it, I see nothing to
be vain of, or to extort the applause or admi
ration of others, I see, what is more grateful to
my feelings, that it exhibits nothing of which
1 am ashamed, or of which on mature reflection
I repent. But while I recollect no act of my
public life which I would alt^r, I confe.ss,
that 1 have, more thau once, done that which
I regretted, and still regret, being compelled
to do by convictions of public duty. In other
words, ray votes have 'not always been in ac-
accord Avith my feelings. Political life, how
ever humble or uuambilious, is beset wilh many
difficulties, trials and perplexities; it is iLe cru
cible of merit, the ordeal of virtue and energy.
He who expects to pass through unhurt and
self-satisfied, and Avishes to be able, Avhen at
his journeys' end, to look back," without shame
or remorse, on the various meanderings and
multiform incidents of the mazy path Avhich
he has followed, must be prepared to do many
things incompatible with his individual inter
ests, and repugnant to his personal and local
predilections. He must expect to be instructed
by the suggestions of an unbiased judgineut,
frequently to do that which, while his head
approves, his heart abjures. He must be pre
pared too, to smile with unmixed contempt at
causeless abuse, and to see his popularity in

ruins without emotions of sorrow, surprise or
resentment, looking in triumph to its day of
resurrection. All wlio engage in political
warfareshould be thus shielded, if they wish
to avoid ultimate discomf.ture and disgrace.
A firm and honest raan should always be con
tented under the consciousness, if he 'fall, of
having done his duty. He has also for his
encouragement an assurance frora the testimo
ny of all experience, that if, in the storras of
faction or moraentary popular commotion he
shallbe, for awhile, overwhelmed, and lighter
bodies should be permitted, for a moment, to
mount the bursting wave, the sunshine of
reason andthe calm of sober judgment will soon
return and find him on a proud eminence high
above those ephemeral favorites who could
vegetate and flourish only in the beams of pop
ular favor, and Camelepn-like, live by snuffing
air — the breath of popular applause. "Popu
lar applause" is gratifying to all good men, but
there is danger, if pursued too eagerly, of its
becoming an ignis fatuus to decoy us inlo error.
No wise man will be insensible tothe appro
bation of his fellow-men, or indifferent about
obtaining it; but no honest man will ever at
tempt to obtain it in any other way than by
endeavoring to deserve it. The popularity
which is gratifying to an honorable and eleva
ted mind, is not that evanescent capricious
thing that must be conciliated by caresses,
and purohatsed by dishonest compliances, but
that high and constant sentiment of esteem
Achich follows virtuous actions, arid is their
best reward, next to the approbation ofasound
conscience, Achich it will, sooner or later, grat
ify and prosper.
1 have been anxious to obtain your appro
bation, but more so to secure that of my own
conscience. The last I know I enjoy — the
first I have endeavored to deserve. And I en
joy a sentiment the mo^t gratify ing to rny feel
ings, in having good reason to believe that my
feeble efforts to do ray duty, in your service,
AvLile they excite no sensation ofieraorse in
my OAvn bosom, have been crowned with your
approbation A^h'ch is the coi summation of my
hopes, and thehighest achievement which ray
ambition ever sought or my vanity expected.
The connexion Aihich has hitherto subsisted
bi'tween us as constituents and representative
being now dissolved, I avail myself of this first
moment after becoming a private citizen, to
tender you, in the plenitude of unmixed grat
itude, my warmest acknowledgments for the
friendship and good opinion which you have
so frequently and so signally manifested to
wards me. I shall long cherish a grateful re
collection of those flatteriug testimonials. Ser
vices which my capacity and situation will
permit me to perform, you may at any time
command. Accept my most earnest wishes for your
welfare, individually and collectively, and
believe me to be, with sentiments of the most
profound respect.
Your friend, and your humble servant,
Q ROBERTSON.
LAjfOAwiai, 1st May, 1821.

9110

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