most obnoxious passage, by moving to strike out the words, "that a nullification by those sovereignties, (meaning the individual States,) of all unauthorized acts done under color of that instrument, (meaning the constitution of the United States,) is the rightful remedy," and inserting the words, "the right of remonstrating and protesting against such laws belonged to the States." With this amendment, the resolution would have read: "That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and the right of remonstrating and protesting against such law, belonged to the States" The amendment was carried in committee, but it was rejected by a majority one, when the committee returned into the house, and the words moved to be stricken out by Mr. Pope, were retained. The resolutions were approved by Gov. Garrard, and the theory of nullification was fixed on Kentucky. But its practical execution was far from being approved; so much so, that when an attempt was made to convert the fire of the resolutions into an act to protect the citizens of this Commonwealth from the operation of the alien and sedition laws, by attaching penalties for any attempt to enforce them; the bill received its death blow in Kentucky, never, we trust, to rise from its polluted tomb, until revolution shall again become the only resource, for preserving the liberty and happiness of the Commonwealth.

of

This sketch would be imperfect, if it did not record the death, as it is most devoutly hoped, of this false, dangerous, and unconstitutional doctrine, and its solemn disavowal by the constituted authorities of Kentucky, in their resolutions approved by the Governor,* February 2d, 1833.

The essence of these resolutions is contained in the following extract: "That so long as the present constitution remains unaltered, the legislative enactments of the constituted authorities of the United States can only be repealed by the authorities that made them; and if not repealed, can in no wise be finally

It is due to the memory of the late amiable and worthy Gov. Breathitt, to mention his particular desire expressed to the author, that he would record the solemn protest of Kentucky, against this doctrine, so fatal in its tendencies to the peace and happiness of this great and glorious republic,

and authoritatively abrogated or annulled, than by the sentence of the Federal Judiciary, declaring their unconstitutionality; that those enactments, subject only to be so repealed or declared null, and treaties made by the United States, are supreme laws of the land; that no State of this Union, has any constitutional right or power to nullify any such enactment or treaty, or to contravene them, or obstruct their execution; that it is the duty of the President of the United States, a bounden, solemn duty to take care that these enactments and treaties be faithfully executed, observed and fulfilled; and we receive with unfeigned and cordial approbation, the pledge which the President has given to the nation in his late proclamation, that he will perform this high and solemn duty."

CHAPTER XVII.

Convention of 1799-Essential alterations of the old Constitution-New ConstitutionSpirit of the Laws from Marshall-State of the Kentucky River-New government of Kentucky-Changes in the state of society-Commercial difficulties-Election of President Jefferson-Joy of Kentucky-Repeal of the Circuit courts of the United States, and of the internal taxes-Insurance Company-Circuit court system.

No measure of importance suggests itself to the author, at this stage of his history, without digressing beyond any necessity, into the narrative of national affairs, too often forced upon the early story of Kentucky; excepting the convention for framing a new constitution, in the 7th year of the old one.

This body assembled on the 22d of July, 1799; it was organized by the same number of representatives, which the counties were entitled to in the election of the House of Representatives, and elected by the ordinary voters; but the duration of the body was limited to four months. It proceeded to business by choosing Alexander S. Bullitt, a member from the county of Jefferson for its president, and Thomas Todd, the veteran clerk of Kentucky, as its clerk.

No report of the debates of this body, is known to exist; although proposals for taking and publishing them, are con

tained in the newspapers of the day. The various points of division can not therefore be stated; but as a substitute for this narration, a brief analysis of the important alterations in the government by the new constitution, will be offered. The first radical change is, the constitution of the Senate and Executive; the former of which instead of being elected by a college of electors, is distributed among a certain number of senatorial districts, not less than twentyfour, and an additional senator to be chosen for every three representatives, which shall be elected above fifty-eight. One fourth of this body is renewed every year, so that after the first three years, the senators hold their offices for four years.

The Governor instead of being elected by the same college of electors as the Senate, is chosen every four years by the voters directly; but instead of possessing the effectual negative of the old constitution, he is overruled on disapproving a law by a simple majority of all the members elected. Thus is the executive responsibility swallowed up by the legislature, and the representative of the whole commonwealth, is scarcely capable of exercising any effectual check in behalf of the people, over the errors or the mistakes incident to all popular bodies; and which are so usefully subjected to the re-examination of the community, as well as to that of their representatives, by an efficient veto. At present the executive veto is calculated to bring that department of the government into contempt, by its imperfect powers of withstanding the moral force and the esprit du corps, so characteristic of popular bodies. The patronage, which the Governor possesses in so simple and economical a community, furnishes a very confined and indirect influence. Most of the offices within his gift are irremovable at his pleasure. With these two essential alterations, the latter most indubitably for the worse, the new constitution was reported after the labors of twenty-seven days, on the 17th of August. It declared the former frame of government to be in force until the 1st of June, 1800; when the new fundamental law of the State was to go into operation.

It is, the author thinks, a matter of regret, that alterations of our constitution, should not be authorized to be submitted by the ordinary legislature whenever two-thirds, or other number beyond a bare majority, should think them necessary; without prohibiting the assemblage of a convention, whenever substantially and unequivocally required by the people. A provision like the above, such as is introduced into the constitution of the United States, is so well designed to save the community, from the hazard of submitting the whole frame of its fundamental law, to the ordeal, often so dangerous, of an unlimited convention. Indeed no sound and discreet community, should suffer itself to be cajoled or terrified into so perilous a political lottery, until the defects and mischiefs of the existing government; as well as their remedies are clearly, precisely, and generally stated and discussed.

This session closed the legislature functions under the old constitution; after having added six hundred and fifty laws to the statute book in eight years, rather more than eighty per annum. "Occasional observations having been made, with a view to convey an idea to the reader, of the character of the session acts, nothing more of the kind will be added here. Whovever attends to the subject, will be struck with the frequent changes in the courts, and in the execution laws; which, if it were possible, should be fixed and immutable. The observer of the legislative course under the constitution, can but be equally affected, by the frequent ocurrence of acts which violate private rights to real property, as well by their retro-active effects, as by vesting power in one or another, to sell lands belonging to infants, as well as those of adults, without their consent. Relief, also, of one kind or other, either to private individuals who should have been left to seek it in a court of law, or equity; or to public functionaries, who had violated the laws, and ran to the legislature to cover their ignorance or design from the consequences, by legalizing what was illegally done, makes a figure in the code; besides

those acts of direct interference between creditor and debtor, by means of replevy, and otherwise: which taken together as a body of evidence, goes to prove great defects in the political morality of the law makers, and separately, furnishes precedents for every species of irregular and incorrect legislation. Not that there are no good laws; there are certainly many; for at different times, different moral and political feeling have prevailed: but so predominant has been the disposition to change, that but few acts have escaped its ignorance, its love, its rage, or its malice."

Such are the free criticisms of a scrutinizing observer of our laws.* The author does not pretend to sit in judgment upon a body of legislation, which neither his learning nor his experience qualifies him to perform: yet he has seen much within his own circumscribed sphere of remark, to justify this reproof of an experienced statesman. It is republished and commended to the attention of our future legislators, in the fond hope, that where the reproach upon our government is merited, they will exert themselves, until it is utterly removed from the proud escutcheon of Kentucky.

During the session just recounted,† a survey of the Kentucky river, from Frankfort to its mouth, by Martin Hawkins, was communicated to the legislature. It exhibited a fall of forty-nine feet and four inches, in an extent of four thousand five hundred and fifty yards; broken into eighteen different falls of unequal length. An estimate of the expense necessary to make each of them navigable, amounted to nine hundred and twenty dollars. At the same time it was suggested that ten thousand dollars would remove all obstructions to the navigation of the river, throughout its whole extent: and that there were persons ready to undertake the work, at a thousand dollars a year, and receive their pay in land, at fifty dollars a hundred acres. These proposals, tempting as they appear at this day, and particularly when the public lands of the State have been sold from forty to twenty dollars per hundred acres, were rejected.

On the first day of June, 1800, the new constitution went

* Humphrey Marshall, Esq.

†Marshall 2, 317.