erable addition was made to the number of inferior Courts and Judges. The Judges were appointed, and entered upon the performance of their duties. At an early day in the following session, a resolution was offered in the Senate for the repeal of the law. After a long and able debate, in which most of the members, many of them eminent jurists, participated, the resolution was carried, and a law passed abolishing the Courts. The repeal of the law was resisted mainly on constitutional grounds.

It will be found, on a reference to the report of the debates, (see Debates on Judiciary, Senate U. S. 1802,) that it was conceded as well by those who advocated the repeal, as by those who opposed it, that Congress had no power to abolish the Supreme Court. The effort on the part of the latter was to shew that the inferior Courts were equally beyond the reach of Congress; whilst those in favour of the repeal, argued that there was a marked difference between the language used in reference to the Supreme Court, and that providing for the establishment of the inferior Courts, from which it was plain that the framers of the Constitution regarded the former as established by the Constitution, whilst the latter were placed wholly within the control of the Legislature. Brief extracts from one of the speeches delivered on each side, will shew the views of the respective contending parties in reference to this point of the debate.

Mr. Tracy "Can you repeal a law establishing an inferior Court under the Constitution? Will it be said, that although you cannot remove the Judge from office, yet you can remove his office from him?"-"That we can, with propriety, modify our judiciary system, so that we always leave the Judges independent, is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence."-"No person will say that the Judges of the Supreme Court can be removed, unless by impeachment

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and conviction of misbehaviour. But the Judges of the inferior Courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the Judges of the Supreme Court. Congress may take their own time to ordain and establish; but the instant that is done, all the rights of independence attach to them." Page 69-70 Debates.

Mr. Mason of Virginia-"When I view the provisions of the Constitution on this subject, I observe a clear distinction between the Supreme Court and other Courts."-"With regard to the institution of the Supreme Court, the words are imperative, while with inferior tribunals they are discretionary. The first shall, the last may be established."-"When the Constitution, using this language, says a Supreme Court shall be established, are we not justified in considering it as of constitutional creation; and on the other hand, from the language applied to inferior Courts, are we not equally justified in considering their establishment as dependent upon the Legislature, who may from time to time ordain them as the public good requires."

The provisions of our Constitution, in relation to the establishment of Courts, and the distribution of judicial power among them, bear a still stronger resemblance to those of the Constitution of the State of Kentucky, relating to the same subject: "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 establish." Art. 4, sec. 1, Kentucky Const. "The Court of Appeals, except in cases otherwise directed by 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." Art. 4, sec. 2. "There shall

be established in each county now, or which may hereafter be erected within this Commonwealth, a County Court." Art. 4, sec. 5.

The great indebtedness of the citizens of Kentucky to the Northern merchants, had, prior to the year 1824, led to the passage of a series of enactments composing what was termed the relief system, and designed to alleviate the distresses of the debtor class of the community, by postponing the collection of debts.

The question as to the validity of these laws being brought, by appeals, before the Supreme Court of Kentucky, that Court decided them to be unconstitutional and void-in conflict with the clause in the Federal Constitution prohibiting the passage of laws impairing the obligation of contracts.

This decision excited much popular discontent, and in the year last mentioned, the opposition to it, increased and strengthened by other causes of dissatisfaction with the Court that made it, led to the passage of an act abolishing the then existing Supreme Court, and establishing a new Court of Appeals in its stead. Four Judges were elected and commissioned to discharge the duties of the new Court, and their officers proceeded to take possession of the records. The Judges of the old Court still, however, continued their sessions. An angry struggle between the two Courts, each claiming the sole and exclusive right to decide upon appeals, as a Court of the last resort, was the result. This controversy between the old and new Court parties was conducted with the most bitter feelings for some two or three years; and after bringing the State to the very verge of civil war, was at last terminated by the passage of a law repealing the act establishing the new Court.

In the case of Hildreth's heirs v. M'Intire's devisee, 1 J. J. Marshall's R. 206, the subject for the decision of the Supreme Court was the constitutionality of the law creating the new Court. The new Court had dismissed

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an appeal which had been taken to the Court of Ap peals, because the record had not been filed with its clerk. A certificate of the dismission having been certified to the Circuit Court from whose judgment the appeal had been taken, the last mentioned Court received and entered it, and issued execution to carry into effect the original decree. An appeal from the last mentioned proceedings of the Circuit Court necessarily brought up for decision the validity of orders and decrees made by the new Court. The Supreme Court unanimously decided that the new Court never had a legal and constitutional existence, and that the Circuit Court erred in respecting and obeying its mandate. The grounds of the decision are set forth in the opinion of one of the Judges, in which all the others concurred.

The following extracts will sufficiently exhibit the grounds of the opinion: "There cannot be more than one Court of Appeals in Kentucky as long as the Constitution shall exist."-"The gentlemen who directed the appeal in this case to be dismissed, and the one who certified the order, did not hold office in the Court of Appeals. The Legislature had attempted to abolish the Court of Appeals, ordained and established by the Constitution, and create in its stead a new Court. This attempt was ineffectual for want of legislative power. The offices attempted to be created never had a constitutional existence; and those who claimed to hold them, had no rightful or legal power. They were not appointed to the Court of Appeals fixed by the Constitution."-"The Court of Appeals had not been and could not be abolished. Its Judges had not been removed from office, and were acting and ready to continue acting as Judges. The act of the Legislature did not intend to superadd four Judges to the number already in office in the Court of Appeals. It cannot receive, and never has received such a construction. The gentlemen who acted as Judges of the legislative tribunal did

not claim to be, and certainly were not, associates of the Judges of the Constitutional Court. They were not their successors."-"Their acts cannot be enforced by law. The Circuit Court proceeded on the assumption that either this new tribunal was the Court of Appeals, or that it was such a de facto Court as could exercise judicial functions ad interim. In this the Court erred. therefore the judgment is reversed."

The terms used in our Constitution, in providing for the establishment of the Courts, being thus shewn to have been previously well defined by popular, legislative and judicial construction, there would, in the absence of any light furnished by a history of the proceedings of the convention, guiding to a different conclusion, arise a fair inference that the framers of the Constitution, in using the terms, intended also to adopt, with them, the construction. If then, we shall find, on looking into the Debates of the Convention, that these terms were frequently the subjects of remark by members of that body, and that the propriety of using them was often discussed; that the construction theretofore given to them was adverted to, and the propriety of using the language in question maintained by some of the most distinguished statesmen of the body, on the very ground that its meaning was authoritatively fixed. and ascertained, are we not justified, (even though it shall also appear that the propriety of the construction, and the authority of the precedents establishing it, was questioned by some,) are we not well justified, in concluding that a majority of the Convention, in employing the terms, designed to connect and adopt with them the construction theretofore thus claimed for and given to them?

The views of the committee on the judiciary, in relation to the subject committed to their charge, as first reported to the Convention, were embodied in a series of resolutions, the first of which was in the following words:

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