Report of a committee of the Senate of Kentucky, 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 jurisdiction 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 republican 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 Government, 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 arguments 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 maintain 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 occupant 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 principles attempted to be established by that tribunal, and entertain no apprehensions from the application and extension of the degrading 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 agitation 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 question, and quietly to submit to the unconstitutional mandates of judicial authority. Hence, it is deemed not only politic, but necessary, for the present General Assembly emphatically to declare, that on this subject they fully accord with the sentiments expressed in the remonstrance of last session, and by the Governor 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 occupant laws attempted to be vacated by the Court, violated no principle either of constitutional or moral law, and are entirely consistent 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 liberty 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 under 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 importance, any other subject which may probably command their attention, 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 Representatives 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 relation 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 politic, on the mere circumstance of one of the litigants being a citizen or subject of a foreigh State, or of a different State from his adversary, 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 imbecile, 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 abrogated by an amendment proposed by our parent state, and adopted 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 passed under their yoke. [Cohens us. State of Virginia, 6 Wheat. 264.] The General Assembly do, therefore, fully accord with the Executive, 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 controversies, 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, determined, 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 proposition 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 obtained 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 Commonwealth, and believed to be his own, are attempted to be annulled. 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 justice 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 representatives 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 Congress 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 statute 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 other; 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 statute, is certainly an unequal provision. The case of the decision of the Court of Appeals on the replevin laws, illustrates this objection. Had the parties who contended for the validity of these laws prevailed, their adversaries, who allege that they were repugnant to the constitution of the United States, might have prosecuted 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 precedent 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