USA > Kentucky > Historical sketches of Kentucky : embracing its history, antiquities, and natural curiosities, geographical, statistical, and geological descriptions with anecdotes of pioneer life, and more than one hundred biographical sketches of distinguished pioneers, soldiers, statesmen, jurists, lawyers, divines, etc. > Part 13
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The first constitution of Kentucky, which commenced its operation on the Ist of June, 1732, also prohibited the legislature from reducing a judge's salary in- ring his continuance in office. But the present constitution. adopted in 1999. runtting no such prohibition. It is not difient to perceive which of these con- stitutions is most consistent with the avowed theory of both as to judicial inde- pendence ; for, certainly, there can be no sufficient assurance of judicial indepen
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dence, when the salary of every judge depends on the will of a legislative majority of the law-making department.
But to secure a permanent tribunal for adjudieating 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 ul- timate jurisdiction. Section one and two of the 4th article reads as follows :
"SEc. 1. The judicial power of this commonwealth, 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 may. from time to time, erect and e- tablish.
"SEc. 2. The Court of Appeals, except in cases otherwise provided for in this constitution shall have appellate jurisdiction only, which shall be co-extensive with the state, under such restrictions and regulations, not repugnant 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 appellate jurisdiction "co-extensive with the State." and co-ordinate with the legislative and executive departments. And this tribunal being established by the constitution, the legislature can neither abolish it nor divest it of appellate jurisdiction. The theoretic co-ordinacy of the organic representatives of the three functions of all political sovereignty, requires that the judicial organ, of the last resort, shall be as permanent and inviolable as the constitution itself. The great end of the constitution of Kentucky, and of every good constitution, is to prescrite salutary limits to the inherent power of nu- merical majorities. Were the political omnipotence of every such majority either reasonable or safe, no constitutional limitations on legislative will would be ne- cessary or proper. But the whole tesor of the Kentucky constitution implies that liberty. justice and security. (the ends of all just government.) require many such fundamental restrictions : And not only to preseribe such as were deemed proper, but more especially to secure their efficacy, was the ultimate object of the people in adopting a constitution : And, to assure 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 which should be entitled to hold their offices as long as the tribunal itself should exist and they should behave well and continue competent. in the judgment 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 appellate tribunal, nor the office itself, shall be subject to legislative abolition.
There is a radical difference in the stability of the supreme and inferior courts. The first is constitutional-the last is only statutory. As the constitution itself establishes the Court of Appeals, this tribunal can be abolished by a change of the constitution alone: But as the circuit courts are established by statute. the su- preme power. that is, a legislative majority, may repeal it. and thereby abolish these conrts ; and, of course, the office of judge ceases with the abolition of his court. It would 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 art. And, as the organization of inferior courts is deferred. by the constitution, to legislative experience and discretion; and as. moreover, a new system of such courts may often be usefully substituted for one found to be inel- igible, the legislature ought not to be restrained from certain melioration, by a fear of shaking the stability of the judiciary. The constitutional inviolability of the Court of Appeals, which may reenty the errors of the inferior tribunal, may sufficiently assure judicial independence and rectitude.
The fundamental mumutability of the Court of Appeals, and the value of the du-> rable tenure by which the judges hold their offices, have been impressively illus- trated 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 pregunt and memorable in the annals of the State. That system of legislative "relief," as it was miscalled, was initiated in 1817-18, by retrospective prolonga-
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tions of replevins, of judgments and decrees-and it was matured, in 1820, by the establishment of the Bank of the Commonwealth, 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 consent to take, at its nominal value, local bank paper greatly depreciated. The object of the legislature, in establishing such a bank, and in enacting such co-op- erative statutes as those just alluded to, was to enable debtors to pay their debts in much less than their value, by virtually compelling creditors to accept much less, or incur the hazards of indefinite and vexatious delays.
The constitutionality of the Bank of the Commonwealth, though generally doubt- ed, was sustained by many judicial recognitions by the Court of Appeals of Kentucky, and finally by an express decision in which the then judges (Robert- son, chief justice, and Underwood and Nicholas, judges) without expressing their own opinions, deferred to those incidental recognitions by their predecessors, and also to the opinion of the Supreme Court of the United States, in the case of Craig vs. Missouri, in which that court defined a " bill of credit," prohibited by the national constitution, to be a bill issued. as currency, by a State and on the credit of the State. The notes of the Bank of the Commonwealth, though issued by and in the name 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 known fact produced the rapid depreciation of those notes ; and, consequently, the same Supreme Court of the United States, affirmed the said decision of the Appellate Court of Kentucky, as it was compelled to do by its own authority, in Craig vs. Missouri, unless it had overruled so much of that decision as declared that it was an indispensable characteristic of a prohib- ited " bill of credit," that it should be issued on the credit of the State. There is much reason for doubting the correctness of these decisions by the national judiciary-and, if they be maintained, there is good cause for apprehending that the beneficent policy of the interdiction of State bills of credit may be entirely frustrated, and the constitutional prohibition altogether paralysed or eluded.
When the validity of the statutes retrospectively extending replevins, was brought before the Court of Appeals, the three judges then constituting that court, (Messrs. Boyle, chief justice, and Owsley and Mills, judges,) delivered separate opinions, all concurring in the conclusion that those statutes, so far as they retro- acted on contracts depending for their effect on the law of Kentucky, were incon- sistent with that clause in the federal constitution, which prohibits the legisla- tures of the several states in the union from passing any act "impairing the obligation of contracts," and also, of course, with the similar 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 for its umpiraye. It subjected to a severe, but decisive ordeal, the personal integrity, firmness and intelligence of the judges, and the value of that degree of judicial independence and stability contemplated by the constitution. The question involved was new and vexed ; and a majority of the people of the State had approved, and were, as they seemed to think, vitally interested in maintaining their constituent power to enact such remedial statutes.
Under this accumulated burthen of responsibility, however, the court being of the opinion that the acts impaired the obligation of contracts made in Kentucky antecedently to their date. honestly and firmly so decided, without hesitation or dissent. The court argued, Ist. 'That every valid contract had two kinds of obli- gation-the one moral. the other legal or civil ; that the fundamental interdicts applied to the legal obligation only, because, as moral obligations are as immuta- ble 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 he ridiculously absurd to suppose that the constitution intended to interdict that which, without any interdiction, could not be done. 2d. That, as moral obliga- tion results from the sanctions of natural law, so civil obligation arises from the sanctions of human law ; that, whenever the laws of society will not uphold nor enforce a contract, that contract possesses no civil obligation, but may be alone morally obligatory ; that the obligation, whether moral or civil, is the chain, tie. or ligature, which binds, coerces, persuades, or obliges the obligor ; that all civil obligation, therefore, springs from and is regulated by the punitory or remedial
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power of human law ; that the destruction or withdrawal of all such power. must annihilate all merely civil obligation ; that, consequently, that which in- pairs such power must, to the same extent, impair such obligation; and, that, whatever renders the remedial agency of the law less certain, effectual or valua- ble, 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 maintaining or enforcing that contract. must, consequently, so far, impair its legal obligation. 4th. That, if a retro- active extension of replevin from three months to two years, would not impair the obligation of a contract made under the shorter replevin law, the-like prolon- gation to one hundred years would not impair the obligation ; and, if this would not, the abrogation of all legal remedy could not. 5th. That it is impossible that legislation can destroy or impair the legal obligation of contracts, otherwise than by operating on the legul remedies for enforcing them ; and, that, consequently, any legislation retro-actively and essentially deteriorating legal remedy, as certainly and essentially impairs the legal obligation of all contracts on which it so retro- acts: And, finally, therefore, that the retrospective extension of replevin in Kentucky, was unconstitutional and void.
Unanswerable and conclusive as this mere skeleton of the court's argument may be, yet the decision excited a great outcry against the judges. Their authority to disregard a legislative act as unconstitutional was, by many, denied, and they were denounced as "usurpers,-tyrants .-- kings." At the succeeding session of the legislature, in the fall of 1-23, a long, verbose, and empty pre- amble and resolutions, for addressing them out of office, were reported by John Rowan, to which the judges responded fully and most effectually. But after an able and boisterous debate. the preamble and resolutions were adopted by a majority less than two-thirds. The judges-determined to stand or fall by the constitution-refused to abdicate. At the next session of the legislature, in 1824, there then being a still larger majority against the judges and their de- cision,-but not quite two-thirds .- the dominant party now became furious and reckless, passed an act, mis-t utitled " an act to reorganize the Court of Appeals ;" the object and effect of which, if sustained, were to abolish the " old" constitu- tional "court," and substitute a "www" legislative " court." The minority in that legislature united in a powerful protest against the "reorganizing act," which, on the presentation of it ro the house of representatives by George Rob- ertson, by whom it was written, was, unceremoniously, ordered to be entered on the journal of that house. without being read. A copy, however, which was read in the senate, was refused a place on the journal of that body,-and a " new court" senator. coming into the other house innnediately afterwards, and there learning that the protest had. unheard, been admitted to the journal of that house, told Mr. Rowan that it was " the deril," and if embalmed in the record, would blow " the new court party sky high." Whereupon, a reconsideration was mo- ved, and the memorable document was kicked out of that house also. But it could not be strangled. It lived and triumphed. It was published as an unan- swerable text, and rallied aud electrified the friends of the constitution, order, and justice.
The " new court" (consisting of William T. Barry, chief justice, and James Haggin, John Trimble, and Reain H. Davidge, judges,) took unauthorized pos- session of the papers and records in the office of the Court of Appeals, appointed Francis P. Blair, clerk, and attempted to do business and decide some cases, their opinions on which, were published by Thomas B. Mouroe, in a sinall duo- decimo volume, which has never been regarded or read as authority. The judges of the constitutional Court of Appeals were thus deprived, without their consent, of the meaus of discharging official duties properly ; and, the people not know- ing whether the " old " or the " new court" was the constitutional tribunal of revision. some appealed to the one, and some to the other. In this perplexing eri- sis of judicial anarchy. the only authoritative arbiter was the ultimate sovereign- the freemen of the Sun al the polis. 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 excitement, or able and pervading discussion, than that which ummun diately preceded the annual elections in the year 1825.
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The portentous agony resulted in the election, to the house of representatives. of a decisive majority in favor of the " old court," and against the constitutionalty of the " new court." But only one-third of the senators having passed the viral of that elecriou, a small " new court" majority still remained in the senate ; ami, disregarding the submission of the question to the votes of the people, that little majority refused to repeal the " reorganizing act," or acknowledge the existence of the " old court." This unexpected and perilous contumacy, brought the antair- onist parties to the brink of a bloody revolution. For months the commonwealth was trembling on the crater of a heaving volcano. But the considerate prudence of the " old court party" prevented an eruption, 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 majority of the popular branch of the legisla- ture, and exposing the incidents of the controversy and the conduct of the defeated party. . The result of this last appeal was a majority in the senate. and au augmented majority in the house of representatives in favor of repealing as unconstitutional, the "act to reorganize the Court of Appeals." That act was accordingly repealed in the session of 1826-7, by " an act to remove the uncon- stitutional obstructions which have been thrown in the way of the Court of Appeals," passed by both houses the 30th December, 1826-the governor's ohjer- tions notwithstanding. The " new court" vanished, and the " old court," redeemed and reinstated, proceeded, without further question or obstruction, in the discharge of its accustomed duties.
As soon as a quietus had been given to this agitating controversy, John Boyle, who had adhered to the helm throughout the storm in a forlorn hope of saving the constitution, resigned the chief-justiceship of Kentucky, and George M. Bibb, a distinguished champion of the " relief" and " new court" parties, was, by a relief governor 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. De cha, they were rejected by a relief senate, and George Robertson and Joseph R. Un- derwood (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 1929, these two judges constituted the court, and. during that year. de- clared bull and 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. 1-29, Robertson was appointed chief justice, and Richard A. Buckner judge of the Court of Appeals. And thus, once more, " the old court" was complete. homogeneous and peaceful, and the most important question that could engage the councils or agitate the passions of a state, was settled finally, and settled right.
This memorable contest between the constitution and the passions of a popular majority-between the judicial and legislative departments-proves the ethicacy of Kentucky's constitutional structure, and illustrates the reason and the importance of that system of judicial independence which it guaranties. It demonstrates that, if the appellate judges had been dependent on a bare majority of the people or their representatives, the constitution would have been paralyzed, juste dethroned, and property subjected to rapine, by tumultuary passions and nonter- ical power. And its incidents and results not only commend to the granito. the living and unborn, the proscribed judges and the efficient compatriots wh) dedicated their time and talents for years to the rescue of the constitution, bit also, limpressively illustrate the object and efficacy of the fundamental liuntatinas in the will of the majority-that is, the ultimate prevalence of reason over p :s- sion-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 now organized, the Court of Appeals consists of three judges, one of whom is commissioned "chief justice of Kentucky." In the year istil, the number was increased to four, and Thomas Todd (who had been clerk of that court, and in the year 1807 was appointed a judge of the Supreme Court of the United States) was the first who was appointed fourth judge. In the year 1813,
*
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the number was prospectively reduced to three; and, all the incumbents having immediately resigned, two of them ( Boyle and Logan) were instantly re-com- missioned, and Robert Trimble, who was commissioned by Gov. Shelby, having declined to accept. Owsley, who had been one of the four judges who had re- signed, was afterwards also re-commissioned ; and ever since that time, the court has consisted of three judges only.
All the judges have always received equal salaries. At first the salary of each judge was 8666.66. In the year 1801. it was increased to $833.33 ; in the year 1806, to $1000; in the year 1815, to $1500; in the year 1837. to $2000 ; and in the year 1843. it was reduced to 81500. During the prevalence of the paper of the Bank of the Commonwealth, the salaries were paid in that currency, which was so much depreciated as, for some time, to reduce the value of each salary to about 8750.
The following is a chronological catalogue of the names of all who have been judges of the Appellate Court of Kentucky :
CHIEF JUSTICES.
Harry Innis, com. June 28, 1792 | John Boyle,
com. M'ch 20, 1810
George Muter,
.. Dec. 7, 1792
George M. Bibb,*
Jan. 5, 1827
Thomas Todd,
Dec. 13, 1800 George Robertson, 66 Dec. 24, 1829
Felix Grundy,
April 11, 1607 E. M. Ewing, 66 April 7, 1943
Ninian Edwards,
.. Jan. 5, 1808 Thos. A. Marshall, " June 1, 1847
George M. Bibb,
May 30, 1809 * Resigned Dec. 23, 1828.
JUDGES.
Benj. Sebastian,
com. June 28, 1792 ! William Owsley, com. April 8, 1810
Caleb Wallace,
.. June 28, 1992
John Rowan. 66 Jan. 14, 1519
Thomas Todd,
.. Dec. 19, 1801 Benjamin Mills,
Feb. 16. 1820
Felix Grundy, ". Dec. 10. 1806
George Robertson, Dec. 24, 1898
.. Dec. 13, 1-06
Jos. R. Underwood, Richard A. Buckner, " Dec. 21, 1829 Dec. 23, 1831
Ninian Edwards, Robert Trimble, .6 April 13, 1807 William Logan,* Jan. 11, 1808 Jan. 31, 1868
Samuel S. Nicholas, " Ephraim M. Ewing, "
March 5. 1835
John Boyle, 66 April 1, 1809 : Thes. A. Marshall, " Mich 18, 1-35
William Logan,
Jan. 20, 1-10
Daniel Breck. 66 April 2, 1843
James Clark, 66
James Simpson, 66 June 7, 1847
M'ch 29, 1810! * Res.gued January 30, 1:09.
Of the chief justices. Muter. Boyle, and Robertson were in commission, collec- tively, about 11 years-Muter for about 11. Boyle 16, and Robertson nearly 14 years ; and of all the justices of the court, Logan, Mills, and Owsley held their stations longest.
In the year 1803. Mutor. very poor and rather superannuated, was induced to resim by a promise of an annuity of $360, which. being guarantied by an art of the legislature in good faith, was complained of as an odious and unconstitutional " provision," and was taken away by a repealing act of the next year.
Under the first constitution of 1790. the appellate judges were required to state in their opinions such fiets and authorities as should be necessary to expose the principle of each decision. But no made of reporting the decisions was provide i by legislative enactment until 1815, when the governor was anthorized to appoint a reporter. Previously to that time. James Hughes, an eminent " land lawyer." had, at his own expense. published a volume of the decisions of the old District Court of Kentucky whilst an integral portion of Virginia, and of the Court of Appeals of Kentucky, rendered tu suits for land-commencing in 1785 and end- ing in 1201 : Achilles Sneed, clerk of the Court of Appeals, bad. in 1905. under the authority of that court, published a souill volume of miscellaneous opinions. copied from the court's onder book ; and Martin D. Hardin, a distinguished lawyer. had, in 1810, published a volume of the decisions from Pod to Ires. at the instance of the court in execution of a legislative injunction of 1902. require the judges to select a reporter. George M. Bibb was the first reporter appointed by the Governor. His reports, in four volumes, inchide opinions from 18- to
Dec. 24. 1.28
George M. Bibb,
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i4 -. Alexander K. Marshall, William Littell, Thomas B. Monroe, John J. Marshall, James Dana, and Benjamin Monroe were, successively, appointed. ::: 4 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 reported decisions of the Court of Appeals of kentucky. 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 incorrect and deficient in execution. Dana's in execution and in the character of the cases, are generally deemed the best. Of the decis- ions in Dana, it has been reported of Judge Story that he said they were the best iu the Union-and of Chancellor Kent. that he said he knew no state decisions superior to them. And that eminent jurist, in the last edition of his Commenta- ries, has made frequent reference to opinions of chief justice Robertson, and has commended them in very flattering terms.
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