Report of a committee of the Senate of Kentucky, 1824

Report of a committee of the Senate of Kentucky to which was referred that part of the governor's message relating to the decisions and jurisdiction of the federal court.

Library Collection, Filson Historical Society

bbf0062

Rare Pamphlet 328.2 K37 1824

Pellaeskes

REPORTT

Of a Committee of the Senate of Kentucky, to which was referred that
part of the Governor's Message relating to the decisions and jurisdic-
tion of the Federal Courts.

December 6, 1824 Read, and ordered to be printed.

The committee to whom was referred so much of the Governor's
message as relates to the decision of the Supreme Court against
the validity of the Occupying Claimant Laws of this State, and to
the jurisdiction of the Federal Courts, have had the same under
consideration, and herewith report the following preambles and
resolutions, which they recommend to be adopted, viz.
The General assemby, at its last session, remonstrated to the
Congress of the United States, against the principles attempted to
be established by a minority of the Supreme Court, in the case of
Green and Biddle, vacating our Occupant Lawa, decided at their
preceding term. The Senators and Representative from this
State promptly presented the remonstrance and documents to that
body, and as early as practicable, pressed the subject on their
consideration. Congress was crowded with important national
subjects of immediate concern, and the session was drawing to a
close ; yet the complaint of Kentucky was taken up in both houses,
and strong indications were given, that her cause was considered
the cause of every other State, and that every underviating repub-
lican and inflexible defender of the true principlesof our Federal
Union, would not only be found in the support of the propositions
contained in the Remonstrance, but also of such other changes
and reforms in the Judicial Department of the National Govern-
ment, as may be necessary to defend the States from the further
encroachments of that powerful tribunal.
It is unnecessary for the present General Assembly to add any
thing to the unanswered, and, it is believed, unanswerable argu-
ments against the opinion of the Court, contained in the petition
of Messars. Rowan and Clay, accompanying the remonstrance, if,
indeed, aught could be added, to make the error of the Court
more palpable; and whether they consult their own judgment,
the sentiments of the people of Kentucky, or the indications in

Congress of the United States, it would seem equally superfluous
to add any thing to the remonstrance itself, for the purpose of
vidicating the justices, the policy, and the necessity of the course
which the General Assembly has pursued, to vindicate the insulted
rights of their State and their constituents. Kentucky could not
make more evident, the wrongs she hasendured, and the claim
she has upon the Congress of the Union, for ample security against
future sufferings and degradation.
But it cannot be disguised, that great efforts have been made
and extensive means employed, by those who substantially main-
tain the supremacy of the Federal Judiciary, and whose interests
have been advanced by the decrees of the Court, to impress upon
the national government and our sister States, that the people of
Kentucky have and feel but an inconsiderable interest in the occu-
pant laws thus attempted to be repealed, and are ready to surrender
them, as unjust in principle, and repugnant to the compact with
our parent State ; that they are not opposed to the general princi-
ples attempted to be established by that tribunal, and entertain no
apprehensions from the application and extension of the de-
grading doctrines in that and other opinions asserted ; that they
are ready to yield whatever the Judges may demand ; that the
measures of the last session were but the effect of a temporary agi-
tation in the public mind, and a rebellious spirit in the General
Assembly, which had spent themselves in the effervescence of the
moment, and left the State in a disposition to abandon the ques-
tion, and quietly to submit to the unconstitutional mandates of
judicial authority. Hence, it is deemed not only politic, but ne-
cessary, for the present General Assembly emphatically to de-
clare, that on this subject they fully accord with the sentiments
expressed in the remonstrance of last session, and by the Gover-
nor in his enlightened communication at the commencement of
the present session, and that, in their opinion, the same sentiments
are entertained by the great body of the people of Kentucky.
They have always believed, and do now believe, that the occu-
pant laws attempted to be vacated by the Court, violated no prin-
ciple either of constitutional or moral law, and are entirely consis-
tent with the compact with the parent State, and were, at the
time of their enaction, imperiously required by the condition of
the country, and are still essential toits repose. They view the
decision of the Court as not only unconstitutional and erroneous,
but as asserting principles whcih are dangerous to the political lib-
erty of the State, and to the civil liberty of its citizens ; and taken in
connexion with the general tenor of the decisions of that tribunal on
constitutional law, and the spirit which has been displayed by their
adherents, as threatening an annihilation and consolidation of the
States. But the General Assembly and the people of Kentucky
view the reports sent abroad, of their readiness to asquiesce in

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principles so monstrous, as groundless calumies upon the State
character, and upon the patriotism and firmness of the people,
and calculated to aid in the prostration of State sovereignty, the
main pillar of the Federal Union and American liberty.
It might seem to be incompatible with that confidence with
which Kentucky looks to Congress for redress of the wrongs un-
der which she suffers, to press directly upon that bady a renewal
od her complaints, at so early a period; but viewing the subject of
the remonstrance as not only important to the people of Kentucky,
but involving the very principles of that government under which
the American States are so happily united, the General Assembly
deem it proper, through the immediate representatives of the
State, to urge it on the early attention of the national Legislature,
and to declare, that they consider if does as far transcend, in im-
portance, any other subject which may probably command their at-
tention, as the fundamental principles of the government rise
above the details of its administration : Therefore,
Resolved by the General Assembly of the Commonwealth of Kentucky,
That our Senators in Congress be instructed, and our Representa-
tives requested, to urge upon the early attention of Congress, the
subject of the remonstrance of Kentucky against the decision of
the Supreme Court of the United States annulling the occupying
claimant laws of this State, and employ their best efforts to obtain
the passage of acts of Congress in conformity to the propositions in
the remonstrance contained.
The provisions of the Constitution of the United States in rela-
tion to the Federal Judiciary, and the jurisdiction exercised by
those tribunals, have also been mentioned by the Governor in his
communication. The Constitution provides, "that the judicial
power shall extend to controversies between citizens of different
States, between citizens of the same State claiming lands under
grants from different States, and between the citizens of a State
and the citizens or subjects of a foreign State." It is difficult to
perceive the principle on which it was deemed necessary or poli-
tic, on the mere circumstance of one of the litigants being a citi-
zen or subject of a foreigh State, or of a different State from his ad-
versary, or on the diversity of the sovereignty by whom the land
in contest was granted, to vest the jurisdiction of the cause in the
federal tribunals, unless we presume that it was apprehended the
state courts. at some future day, might become so corrupt or imbe-
cile, as to be incapable of rendering justice according to law, in
any cause in which a citizen of a foreign or sister state might have
an interest adverse to a citizen of the state to which the tribunal
belonged, and become so far lost to a sense of rights, as to deny
justice to even one of their own citizens, on the ground that his
grant emanated from another state. But surely it ought not to
have been believed, that this government, which is founded excla-

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sively on the virtue and intelligence of the people could long endure
after the people had become so corrupt, as to will, or even tolerate
such abuses of the judiciary, which, like every other department of
their government, must, on the principles of the supermacy of the
people, ever be a correct representation of themselves. But it
cannot be disguised, that there did prevail in the convention, not
only an undue distrust of the states, but a strong disposition to
place them under the control of the federal judiciary. Hence the
provision in the orginal article from which we have quoted, that
subjected a state, contrary to its will, to be arraigned at the bar
of the federal judges at the suit of a citizen, or even that of an
alien. this provision, it is true, was believed to have been ab-
rogated by an amendment proposed by our parent state, and adopt-
ed by the requisite number of the members of the Union. But it
is equally true, that the Supreme Court have determined, by their
constructions, that a vestige of it still remained, and have, upon
its authority, solemnly adjudged, that distinguished state to pass-
ed under their yoke. [Cohens us. State of Virginia, 6 Wheat. 264.]
The General Assembly do, therefore, fully accord with the Ex-
ecutive, in his opinion that this jurisdiction is unnecessarily and
improperly vested; and believing with him, that our state tribunals
may be made competent to the determination of all such contro-
versies, would willingly unite with our sister states in ratifying
amendments to the constitution, to divest the fereral courts of all
such jurisdiction. The Supreme Court have, however, determin-
ed, that they cannot exercise jurisdiction in any case,merely on
the authority of the constitution; but that the jurisdiction must
be given by statute also; [M' Intire and Wood, 7 Cranch 505] and
Congress has, by statute, conferred on them jurisdiction in causes
of the above character. The repeal of the acts of Congress
would, therefore, for the present, remedy the evil. In a proposi-
tion to repeal these acts, it is believed, Kentucky would display
an unanimity seldom witnessed on any question. It was by virtue
of thede acts, that the Circuit Court for the Kentucky district ob-
tained jurisdiction in the case of Green and Biddle, from which it
was adjourned to the Supreme Court, where the occupant laws,
designed to secure the bona fide occupant a fair compensation for
his labor, honestly bestowed on lands granted to him by the Com-
monwealth, and believed to be his own, are attempted to be an-
nulled. If, therefore, those acts of Congress had not been in force,
the decision could never have been given, and if repealed, our
laws may be restored.
These are not, however, the only laws designed to secure jus-
tice to the people of Kentucky, which have been disregarded by
the federal tribunals, in exercising jurisdiction under the act in
question. The Circuit Court for the Kentucky district, have held
for naught, the statute of this state limiting actions for the recov-

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conveniencies to litigants, by a multiplication of the districts of the
federal court, and thus to carry home the justice of the federal
Judges to the doors of the people. But for this remedy we are
not prepared. We still glory in the part which the representa-
tives of Kentucky took, in the repeal of the wide-spread system
of the federal judiciary, which was established for the abolition of
the rights of the states, and the humiliation of the people. We
are, therefore, for a curtailment of the jurisdiction of the courts;
not for a multiplication of the courts and judges, and an extension
of their patronage and influence: Therefore,
2. Resolved by the authority aforesaid, That our Senators in Con-
gress be instructed, and our Representatives requested, to use
their best efforts to cause and act to pass that body repealing all
statutes now in force, which give the federal courts jurisdiction,
where land is the subject-matter of controversy, merely on account
of the citizenship of the parties, or the states from which the grant
to the land in contest issued.
There is another provision in the judiciary act of Congress, by
which the Supreme Court exercises a jurisdiction to annul and set
aside not only the statutes of the states, but also the decisions of
their courts of justice, which is peculiarly objectionable in its
character. The 25th section of the judiciary act provides, among
other things, "that a final judgment or decree in any suit, in the
highest court of law or equity of a state, in which a decision of the
suit could be had, where is drawn in question the validity of a stat-
ute of, or authority exercised under any state, on the ground of
their being repugnant to the constitution, treaties or laws of the
United States, and the decision is in favor of such, their validity
may be re-examined, and reversed or affirmed, in the Supreme
Court of the United States, upon a writ of error."
That a writ of error is allowed to one party and nto to the oth-
er; that it is given for the purpose of annulting the statute of a state,
after its highest judicial tribunal has declared it constitutional and
valid, and yet denied when the state court has vacated the stat-
ute, is certainly an unequal provision. The case of the decision
of the Court of Appeals on the replevin laws, illustrates this objec-
tion. Had the parties who contended for the validity of these
laws prevailed, their adversaries, who allege that they were re-
pugnant to the constitution of the United States, might have pros-
ecuted their writ of error, and had the decision re-examined and
reversed. But the Court of Appeals having attempted to annual the
laws; the parties who contended for their validity, have no appeal
and, consequently, the decision is fixed upon the state as a prece-
dent for all future time, unless the Judges be driven from office in some
mode. It is not, however, this singular provision in the statute,
which constitutes the main objection. It is by no means conceded,
that Congress had power to provide, that after the highes court

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of law or equity of a state, in which the case could be heard, had
pronounced its final decision between the parties, the judgment or
decree might be re-examined and reversed in the federal courts.
But it is not necessary to urge the constitutional ogjection. Con-
gress has power to repeal the enactment; [Durousseau us. United
States, 6 Cranch 314] it will, therefore, be suddicient for Kentucky
to unite with the other states in urging upon that body, the other
intrinsci objections and dangerous tendencies of this singular
clause. It might be sufficient to say, that by this short paragraph
the prerogative of understanding and applying the principles of
the federal constitution, is wholly wrested from the states and peo-
ple, by whom it was made, and consigned to a tribunal installed for
life, equally irresponsible to the people and their representatives; that
by vesting this jurisdiction in the Supreme Court, seven men, placed
above all control by the only rightful sovereigns, are made the final
arbiters of the extent of the legislative power of the states, and have
it thereby in their power to degrade them to any character " of
corporation," which may be dictated by their ambitious designs or
capricious fancies.
If it be asked, how could uniformity of construction upon those
articels of the constitution which are prohibitory to the states, be
maintained, if this mode of preserving it be abandoned, it is an-
swered, that this secting does not secure the object. It is only
calculated for a reduction of the power of the states by the Su-
preme Court, where the state judiciaries are not bold enough for
the undertaking, whilst it leaves those states without appeal, who
are willing to become the victims of such decisions by their own
tribunals, as may sink them even below the grade to which the
federal judiciary would consign them; so that the enactment only
affords a double means of reducing the states, without the advan-
tage of uniformity in either the process or result. It would, there-
fore, be surely preferable to leave the state judiciaries controlla-
ble only by the people and their representatives. This would, at
least, avoid the diversity of constitutional law in the same state ;
and to remedy the evils of a contrariety of construction which might
prevail in the different states, it would surely be safer to resort to
explanatory amendments of the constitution, than to leave it whol-
ly in the power of those whom the public will, which is the very
soul of the instrument itself, can never reach. This means of ob-
taining the end, it is belived, would itself have a most advanta-
geous effects. It would produce a continual recurrence to first prin-
ciples, and awaken a vigilance in the public mind, which would
constitute the strongest barries against usurpations from whatever
quarter they might come. These means would produce a perfect
understanding of the restraints which the states have imposed up-
on themselves, which is essential to their obligation, and, it is be-
lieved, would sufficiently secure theirobservance: Wherefore,

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3. Resolved by the authority aforesaid, That our Senators in Con-
gress be instructed,, and our Representatives requested, to use their
best exertions to procure the repeal of so much of any act of Con-
gress as provides that any judgment or decree of the highest court
of law or equity in any state, in any case in which is drawn in ques-
tion, the validity of any statute of a state, on the ground that it is
repugnant to the constitution of the United States, may be re-
versed in the Supreme Coourt of the United States, by writ of er-
ror or otherwise.
4. Resolved by the authority aforesaid, That the Governor be re-
quested to transmit a copy of the foregoing Preambles and Resolu-
tions to each of our Senators and Representatives in Congress.

ANDREW S. HUGHES, Chairman.

WILLIAM B. O'BANNON,

J. DUDLEY,

WILLIAM WORTHINGTON.

RODES SMITH,

r.BALLINGER.