be obtained under those laws, should be absolutely void, so far as it should interfere with a survey made in virtue of a right derived from Virginia."

The mischievous operation of this decision of the land titles of Kentucky, has been arrested by two causes; neither of which, was anticipated at the time it was given by the Supreme court. The first has been the refusal of the Appellate court of Kentucky* to be bound by an opinion of the Supreme court of the United States, not concurred in by a majority of the whole court. The second has been the subsequent determination of the Supreme court, unanimously affirming the constitutionality of the act of Kentucky, limiting the commencement of actions against actual settlers, within seven years from its passage; and its consistency with the compact between Virginia and Kentucky. This additional quieting measure was passed in the 9th of February, 1809, and its constitutionality was affirmed in 1831, in the case of Hawkins et. al. vs. Barneys' lessees. Thus has the poison and the cure proceeded from the same source, though the forfeiture of the land itself, would seem, to one uninitiated in the mysteries of the law, a much more fearful violation of the obligation of the contract, contained in a patent for land; than the subjection of that same land to a salvage, or per centage for actual improvements, made upon it, in as good faith, as that which gave the elder patent. Less than this, could not well be said on a subject connecting itself with the sacred freehold, the Dii Penates of the State.

CHAPTER XVI.

Convention-Emancipation of Slaves-Henry Clay-Penitentiary Code--Alien and Sedition Laws-Nullification Resolutions of Kentucky in 1798-1799-Abjuration of this doctrine in 1833-Constitution of 1800-State of Legislation-Trade-Election of Mr. Jefferson as President of the United States-Judiciary Repeal-Repeal of the Internal Taxes-Insurance Company.

During the year 1797, a partial and irregular vote was taken on the question of calling a convention to revise the Constitution. By this, the whole number of voters was represented as "nine thousand eight hundred and fourteen, and that of this number, five thousand four hundred and forty-six were for a convention. Of the twenty-one counties, then existing in the State, at the time of the general election in May, 1797, there were five which made no return of those who voted at the election." A bill for taking the sense of the people on the assembling of a convention, fell, in the Senate, by a small majority. This measure, like most political topics, is said to have gathered strength by agitation.

The aristocratic constitution of the Senate, formerly hinted at, became a free topic of public animadversion-its remote ness from the choice of the people; though not more so than that of the President and Vice President of the United States is, at this moment, under the federal constitution; yet it was highly odious to the people.

The emancipation of slaves, presented another matter of ferment and uneasiness. On this delicate point, Mr. Clay, who had only come to the State in 1797, took the fearless part of advocating a gradual emancipation of slaves, which his noble spirit has ever dictated. It was the precursor of that illustrious career which he has so honorably run, in supporting the wise and pure charities of the "Colonization Society." Such are said to have been the principal points of agitation among the people; still no decisive popular vote could be obtained on the question, at the August election in 1798. The result, as before, left several counties unrepresented on the matter; seven out of twenty-four of them, did not vote on

the question at all, and the total presented, eleven thousand eight hundred and fifty three in favor of the convention, and eight thousand eight hundred and four against it. A law, however, passed this session, for calling a convention on the 22d July, 1799.

A memorable change in our criminal code was effected during the session of 1797-98; it was the abolition of the punishment of death, for any offence but that of murder in the first degree. This species of crime was defined to consist in "murder, which shall be perpetrated by means of poison, or by lying-in-wait, or by any other kind of wilful, deliberate and premeditated killing; or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary." Other kinds of homicide were to be punished with confinement in the penitentiary, for not less than five, nor more than eighteen years. Other offences were made punishable by similar alleviations.

But while there can be no doubt, that the spirit, in which this great revolution in our criminal code originated, was one of the purest benevolence; one that has engaged the minds and hearts of some of the warmest friends of social order, and moral improvement, the Beccarias and the Howards of society; yet there are considerations for the security of the innocent and injured, who become the victims of lawless passions, which have been too much lost sight of in some of our penitentiary systems. Punishment for crime may be made so tolerable under the influence of a false and perverted humanity, as to neglect the violated rights of society. Feeling for the effects brought upon criminals by their inordinate passions, may be carried so far as to lose sight of the just claims of the innocent. In another point of view, penitentiaries, according to their management, have in many instances, been schools of vice, and sources of augmented corruption, instead of institutions of reform; either by their physical or moral influences. Tested by any of the principles, which have received the sanction of the wisest friends of ameliorated legislation on criminal punishments, the author fears the

penitentiary of Kentucky will be found to be far short of practicable perfection.

On these points of interesting law, the friends of humanity have been not a little divided. One portion attaching the importance of this species of punishment to solitary confinement exclusively, with or without work; the other to a system of rigid, silent labor, but without solitary confinement. The models of these respective systems are to be found in the Eastern Penitentiary of Philadelphia, for the first system, and the Sing-Sing establishment in the State of New-York, for the other.*

In the year 1798, an agitation took place, which has scarcely ever been equalled in Kentucky, produced by the passage of two acts of Congress, familiarly known as the alien and sedition laws. The sentiments of Kentucky were never more unanimous than in the condemnation of these measures. The Governor, in his first communication to the legislature, after their passage, called the attention to these measures of that body, by "telling them that they had vested the President with high and dangerous powers, and intrenched on the prerogatives of the individual States, have created an uncommon agitation of mind in different parts of the Union, and particularly among the citizens of this commonwealth.' The alien law authorized the President of the United States "to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect are concerned in treasonable or secret machinations against the government thereof, to depart out of the territory of the United States." By another section the President was authorized to "grant license to any alien to remain within the United States for such time as he shall judge proper, and at such place as he may designate." In addition to these high and arbitrary powers over aliens,

*The reader, who feels a curiosity to investigate these great moral problems, will find them most ably and impartially discussed in the "Report of Messrs. G. De Beaumont and A. De Toqueville, on the Penitentiary system of the United States, to the govern ment of France." It is translated by the learned and sagacious Leiber, the editor of the Encyclopedia Americana; accompanied by notes in the usual full and philosophical manner of this learned German, who has honored our country by adopting it. Phil adelphia, 1833.

whose nations were at peace with the United States; powers so calculated to arouse the jealousies of a people attached to their liberties, it was likewise enacted, that should any alien return, who had been ordered out of the United States, by the President, "unless by his permission, he shall be imprisoned so long as in the opinion of the President, the public safety may require."

The sedition law was still more odious than this measure; it attempted to protect the official conduct of the different branches of the government of the United States, from that free and unrestrained discussion, alone worthy of a people canvassing the public conduct of their agents. This object it effected by holding any person answerable, by fine and imprisonment, "who should print, utter, or publish any false, scandalous and malicious writing against the government of the United States, the President of the United States, or either House of Congress, with intent to defame" "either of them," or "excite against either of them the hatred of the good people of the United States." The great objection to this measure is, not its subjecting malicious falsities to punishment; but its subjection of opinion, however honestly entertained, to fine and imprisonment.

It is not meant by the author to shield, or apologize for the licentiousness of the press, for its wanton impugning the motives of public men, and the imputation of its own scandalous inventions, much less its unprincipled dissemination of known falsehoods. All such offences, independent of their heinous immorality, their violation of all honorable decorum and liberal discussion in lacerating private feelings, are essentially destructive of the sound and valuable influence of the press. It has already impaired the weight which this great instrument of intellectual and moral circulation ought to have on the community. The frequency of falsehood perplexes the discrimination of truth; and the press ceases to be a credible witness at the bar of the public.

But are penal laws the proper instructors for the community in liberality and decorum of political discussion? Can they