ed apprehension that the said George Muter, and Benjamin Sebastian are altogether destitute of that judgment, integrity, and firmness, which are essential in every judge; but more especially in judges of the Supreme court; and that there is no security for property so long as the said George Muter and Benjamin Sebastian continue as judges of the court of Appeals." The House, then, in consequence of these recitals, and their power to address the Governor to remove any judge for any reasonable cause, which should not be sufficient ground for impeachment, determined, by a majority of three votes, that this address ought to be made. The subject, however, was resumed in the Senate, and a resolution, censuring the judges for a decision, which the resolution asserted, "from what appears at this time, proceeded from a want of a proper knowledge of law, or some impure motives, that appear to discover a want of integrity," passed by a majority of one vote. This was most unconstitutionally transmitted to the other House for its action, when the question had fallen from a want of the constitutional majority of two-thirds. It passed by the same majority, as the first resolution introduced on this subject into the House.

This is, it is believed, the earliest dispute between the Legislative and Judicial departments of the state government; which at a more recent period appeared to threaten the commonwealth, with anarchy and confusion. Nor ought the occasion to pass without remarking, that, however correct the legal principles contended for by the Legislature may be, and indeed they appear to be very manifest; still there is a system of official intimidation, and overawing, evidenced by the legislative proceedings, after constitutional majorities could not be obtained, which is utterly inconsistent with the constitutional rights of the Judiciary, and which, in a popular excitable government like ours, is calculated to overthrow all the barriers against tyranny and unlawful violence, at the feet of the legislature. The hold which the members of this body so justly possess, on the affections of their neighbors and friends, with whose bosoms

they are in such constant and familiar intercourse; should at the same time subject its steps to the vigilant scrutiny of the community; that they do not pervert the public confidence to the purposes of individual passions, at the expense of the public liberties on interests. The judges are said to have published "a clamorous appeal to the people in a pamphlet of thirty pages," which the author has not been able to procure. The remark proceeds from a writer, who, with his acknowledged abilities, bears his resentments too keenly, to always see the injustice he commits against his enemies. The overweening influence, which Colonel George Nicholas is alledged to have possessed over the court, excited great jealousy in the public mind; nor was this suspicion lessened, by his being counsel for McConnel, in this agitated case.

At the subsequent term, judge Muter joined judge Wallace, in an opinion favorable to Kenton; and a decree directly the reverse of the former one, was made by the court; Sebastian adhering to his former sentiments. Thus terminated the first controversy between the court of Appeals and the legislature of Kentucky, in the triumph of the latter, though it is firmly believed, in a righteous cause. Not that any doubt exists as to the constitutional power of the legislature to address the executive for the removal of a judge for gross misconception of his duties, in the misunderstanding, or misapplication of the laws; for this incapacity is one of those very "reasonable causes," which is presupposed by the constitution in giving a legislative control in addition to the power of impeachment. This latter check is presumed to be intended to meet the moral delinquency of its objects, and not the involuntary, though mischievous exertions of their powers.

At this session an act was passed disqualifying sheriffs and their deputies from sitting in either branch of the legislature, until one year after they shall have made their collections of the public revenue, paid them into the public treasury, and obtained a quietus from the auditor. The

constitutionality of this law creating qualifications for members of the legislature, in addition to those enacted by the constitution, may well be doubted; the same objection cannot be made to the disqualification of Quarter Session Justices, which likewise took place at the same session. This was effected by vacating the seats of twelve persons, who had been elected to the House of Representatives. At this session was communicated by the Governor, the correspondence which he had held with Colonel James Innes, the special messenger employed by the President of the United States, on the interesting subject of the negotiations with Spain respecting the navigation of the Mississippi. "This corespondence had taken place during the preceding January, soon after the adjournment of the body for which it was intended." It is to be regreted that Governor Shelby should not have felt himself at liberty, to have laid these communications before the public, in order to tranquilize their apprehensions and suspicions. The movements of Colonel Innes upon a mission of so much importance to the public peace, and which involved the anxious feelings of the western country to so intense a degree, seem utterly inexplicable at this day. *The Senate of the United States, after resolving that "on the negotiation now carrying on at Madrid, between the United States and Spain, the right of the former to the free navigation of the Mississippi is well asserted and demonstrated, and their claim to its enjoyment is pursued with all the assiduity and firmness, which the nature of the subject demands," had requested "that the President of the United States, would communicate to the Excutive of Kentucky, such part of the existing negotiation between the United States and Spain, relative to this subject as he may deem advisable, and consistent with the course of the negotiation." A similar vote of approbation passed the House of Representatives. General Washington had, however, two months before the request of the Senate communicated the course

When such

of the government on this exciting matter. abundant evidence is found in the proceedings of the government, to shew the anxiety and exertions of the Washington administration, to promote and secure the western interests; it is painful to reflect on the little credit it received in the public mind of Kentucky, for this enlarged and parental policy. It is to be apprehended, that there had been too much familiarity with the idea of righting themselves without the aid, if not in defiance of their own government; to have allowed a fair construction to be placed upon the measures of the general government. Indeed it is not to be concealed, that Kentucky was a violent antifederal State from the first proposition of the glorious system of government, which has advanced this country to such heights of happiness and renown. She had in the excess of her democratic prejudices, refused her sanction to the new frame of government, and she was identified with the opposition to all the leading measures of the Washington administration. The election of Humphrey Marshall, and his votes were, it is believed, the only exceptions to this temper; and now instructions were brought forward, to direct him distinctly from his colleague, in his vote upon the British treaty, which had received the advice and consent of the Senate, to a conditional notification during the preceding summer. Subsequently, however, the individual instructions to Senator Marshall, were amended by inserting the words Senators, in conformity to all propriety and official decorum. The treaty, however, did not again come before the Senate of the United States, owing to the ready acceptance of the exception proposed by the American government.

Y 2

CHAPTER XV.

Land Laws of Kentucky-Dissatisfaction with the Constitution of 1792-Gov. GarrardJohn Adams, President of the United States-Occupying claimant law and controversy -Seven years' limitation law.

Another branch of perplexing legislation presented itself this session in the vacant lands of the commonwealth southwest of Green river, that were ordered to be sold on a credit which created a debt from her citizens, embarrassing to the government of Kentucky as long as it existed. The first act secured to each housekeeper a pre-emptive right to purchase his land at thirty dollars per hundred acres; the fee simple to be withheld until the money was paid. These easy and tempting terms rapidly attracted a numerous population from other parts of the state to this section of it, where lands were to be had at thirty cents per acre. These are declared to have been worth from two to four dollars for that quantity. Such tampering with public property, contrary to all mercantile principles of supply and demand, and laying aside all the wholesome control of commercial competition, necessarily gave rise to great land speculations, and the arts and impositions which invariably follow in the train of all such excitements to the cupidity of the community. Still, as if these terms were not favorable enough, in the year 1797, another act passed, allowing from one to two hundred acres to all who should settle in this section of the state before the 1st of July, 1798, reside one year and tend two acres of corn within a fence. The prices were raised from thirty dollars to sixty per hundred acres of first rate land, and forty dollars per hundred acres of second rate land. But now no first rate lands were to be found for the benefit of the commonwealth, however abundantly they might reward private settlers. The land was to be forfeited, if it was not paid for within a year from-the date of the commissioners' certificate; but how could this forfeiture be exacted by the commonwealth against a large and valuable body of her citizens? The very idea is absurd under