« PreviousContinue »
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. It being the purpose of a manifesto to commiit the members of the legislative 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 effort 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 prophesied 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 condensed protest, for galvanizing his desponding party, and affording to all, who might desire honest investigation, a text for argument against the act. And accordingly the following protest was prepared by him, signed by the minority, and presented to the House of Representatives before 3 o'clock of that same and last day of the session.
On the presentation ofit, Mr. Rowan, as leader of the majority, courteously moved a dispensation of the reading of it, and its 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 Beauchamp, 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 don't kick it out of your House, it will blow us all sky-high."
Mr. Rowan immediately moved a reconsideration of the vote just given; 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 MINORITY,
The undersigned, composing the minority supreme powers of that department must be of the legislature, who voted against the act vested in a chief magistrate. The Governor "reorganizing the Court of Appeals," being can only be removed from his office by twoabout to separate, perhaps never to meet on thirds, on impeachment--the office cannot be this theatre again, cannot, consistently with a abolished-it cannot be removed from him by sense of duty to ourselves, our constituents, any act of the legislature. The judges of the and the constitution of our country, close our Court of Appeals can only be removed from official duties, without uniting together, and their offices by two-thirds, either by impeachwith one voice, respectfully, but firmly and ment or address. The offices cannot be resolemnly, protesting against this unprecedent-moved from the judges by any act of the leged act, as unconstitutional, unjust and alarm-islature. The court cannot be abolished; and ing.
the judges, unless removed by impeachment or address, are entitled to hold their offices during the continuance of their court. There shall be a Court of Appeals, and but one Court of Appeals. If the legislature can abolish, or discontinue it for a moment, there is nothing to prevent its abolition forever. But the convention who formed the constitution have not
The constitution declares, that "the Judges 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-thought proper to leave to the legislature the 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 constitution tolerates no other mode of removing the judge from the office; this is denied by none. If then the court cannot be abolished or discontinued, the attempt to remove the judges by its reorganization is "palpably and obviously" unconstiturional. We insist that the Court of Appeals is created by the constitution, and therefore can only be abolished by the people, in convention.
power of creating, or destroying, or modifying, or changing the three great departments of the government; they are fixed by the constitution, and are as stable and immovable as that sacred and inviolable charter. Although the governor may die or resign, there is still an executive department, and it is the same department. And although the judges of the Court of Appeals may die or resign, there is still a Court of Appeals, and it is the same court. The officers, in each case, may change, but the office is the same-the executive still continues
the court still continues. This is the doctrine of the constitution-it is the doctrine of genuine republicanism-it was the doctrine of the republicans of 1802, with Mr. Jefferson at their head. The republican party in Congress, in 1802, acknowledged that the supreme court could not be abolished, nor the judges removed from office by an act of ordinary legislation; because the court was established by the constitution, 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, which are established by law, may be abolished by law, whenever they become inconvenient or unnecessary.
No stronger evidence of this is necessary, than the following extracts from the constitution: "The powers of the government of the state of Kentucky shall be divided into three distinct departments, and each of them confided 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 legislative power of this commonwealth shall be vested in two distinct branches," &c. "The judiciary powers of this commonwealth shall be vested in one supreme court," &c. Each department is created by the constitution, for Our constitution, like that of the nation, alwise ends-and must exist as long as the con-lows the legislature, from time to time, to esstitution endures. There must be a judiciary tablish the inferior courts; because, experience department, as well as legislative and execu- might prove the necessity of changing those tive. The ultimate powers of that depart-courts, so as to adapt them to the condition of ment must be vested in one court of appeals. the country. But each constitution requires There must be an executive department. The that there shall be one supreme court, and the
language of each is substantially the same. By each, a supreme court is ordained and established. The 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 established by the paramount act of the people in convention. The same authority which creates, may destroy; therefore, the legislature may abolish the circuit courts-but the people alone, assembled in convention, can abrogate the court of appeals.
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 influence in, and out of the legislature, in caucus and otherwise, whilst Secretary of State, to procure the passage of an act, to provide offices for himself and friends; when we hear, day and night, of our chief magistrate intermeddling, 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 watchtowers, tell them, "all's well?" We cannot, we will not; we would be faithless to ourselves and treacherous to them; we will tell them the truth, and are prepared for the consequences.
tating confidence of the people; that, to provide for particular men, we believe new and unnecessary offices have been created; and to consummate the object, when the people are almost sinking under embarrassment and distress, the salaries of the new judges of the Court of Appeals have been raised from four thousand five hundred dollars to eight thousand dollars.
But this legislature, as if above the constitu tion, have arrogated the right to abolish the Court of Appeals, by its "re-organization," and to remove the incumbent judges from office, by a We will tell them, that the new judges are bare majarity, whilst their court continues!" virtually pledged to support the party in powWe consider this not only an unconstitu-er; that we do believe that they are, in every tional and high handed measure, but one, essential attribute of an enlightened, indepenwhich, if approved, will prostrate the whole dent and incorruptible bench, inferior to the fabric of constitutional liberty; we do consider old judges; that such a court, organized under it a REVOLUTION! We consider this un-such circumstances, will not, we fear, possess, paralleled act, as an attempt, by the majority or even deserve to possess, the full and unhesiof 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 governed by factions-that "liberty and equality" will be empty sounds-that the ambitious and All this we have in our places faithfully and the powerful will hold in their hands the des- honestly endeavored to avert, but our efforts tinies of our state-that the minority will, in- were unavailing. The judges had been fully deed, have "no rights," and will be proscribed, and constitutionally tried, and acquitted-but as we believe it has been resolved that WE that which shields the felons of the country shall be, during the present administration-could not protect them-they are not liberated that the freedom of speech and of conscience, after one trail-they cannot escape. "Power" and the rights of life, liberty, and property, is converted into "right"—and the constitution will depend on the caprices of a fluctuating majority of the legislature; that our courts will be servile and dependent, like those of revolutionary Frauce, 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 parliament.
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 patrilots of the revolution have denounced as the most intolerable despotism. Against this sort of tyrrany our fathers protested in the Declaration of Independence; against this sort of tyThese are not the depictions of vivid fancy, ranny they fought, and bled, and conquered; or the spectres of a puerile alarm; we fear that and against it, those of their sons who cherish they may become sober and solemn realities. their principles, will ever PROTEST, whilst If the people sanction this act of the majority, they have tongues to speak, or pens to write. where is our security? Their approbation of And we now declare to this legislature, and to such an act would indicate a destitution of that the people, that if this memorable act of a mareverence for their constitution, which is the jority be submitted to, or enforced, liberty is in soul of every constitution, and without which danger, justice is in danger, morality is in no people ever were or ever will be free. Ours danger, religion is in danger, and every thing is not the language of prophecy, all of whose dear and sacred is in danger. We will have no predictions are yet to be fulfilled-as passing living constitution, and against bad times and scenes will prove. Although we are not ini- bad men there will be no security. This extiated into the "arcana imperii," our eyes have ample will consecrate every encroachment seen and our ears have heard enough to enable that power can make on the rights of the poor us to understand "the signs of the times."- and the humble, the persecuted and the virWhen we see new judges appointed to super-tuous.
The only privilege now left the minority, is | John Green, 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 constitution of our country dead, and consigns 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 rectitude of our conduct and the purity of our motives, we do now, for ourselves, our constituents and our posterity, in the name of the constitution and of justice, enter on the Journal this, our solemn protest against the late memorable act of the majority, as most alarming
Members of the House of Representatives.
John L. Hickman,
C. B. Shepherd,
of the Senate.
Although the people, by a large majority, decided against the re-organizing 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 having on their side the casting vote of Lieutenant Governor, Robert B. McAfee.
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 Representatives 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 Taylor, Robert Taylor, Z. Taylor, Timberlake, Thomasson, True, Turner, Underwood, Waddell, Walker, Wilson, A. White, Woodson and Yan
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, Nuttall, Perrin, Porter, Prince, Samuel, 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'Bannon, Shelby, Smith, T. Ward, Wood, Worthington, and Yancy-19. Nays--C. Allan, Beatty, Carneal, Crutcher, Davidson, Denny, Faulkner, Garrard, Given, Hickman, Howard, Locket, Muldrow, Pope, Stephens, J. 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 umpire, this unexpected contumacy of the Senate produced unexampled agitation.
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 clerk of the old court, and having closed his office, and refused either to