tary of War, the impressment plan of the Secretary of the Navy, and the bill to enlist minors without the consent of their parents or guardians. Connecticut thereupon bade her Governor, if the bills passed, summon the General Court, that steps might be taken to preserve the rights and liberties of the people and the freedom and sovereignty of the State. The passage of the Conscript Bill by the House of Representatives roused Maryland, and her House of Delegates ordered a committee to report what measures should be taken "for maintaining the sovereign rights of this State, and protecting the liberties of its citizens against the operations of arbitrary and unconstitutional acts of the Government." Massachusetts in despair called the Hartford Convention. When the war passed away and peace returned, the struggle for State rights took on the form of a contest with the Supreme Court. Dominated by the master mind of John Marshall, the court no longer approached constitutional questions with the old-time caution, and in a long series of decisions asserted its own jurisdiction,* upheld the powers of Congress, and set aside laws of the States which in its opinion conflicted with the Federal Constitution. Between 1809, when Marshall handed down his decision in the Olmsted case, and 1824, when that of the Bank of the United States vs. the Planters' Bank of Georgia was decided, fourteen acts of eleven States were set aside wholly or in part. Most of the * Asserting jurisdiction of the court: 1816. Martin vs. Hunter's Lessees. + Upholding the powers of Congress : 1819. McCullough vs. Maryland. 1824. Osborn et al. vs. Bank of the United States. 1809. Pennsylvania-United States vs. Peters, Cranch, 115. 1810. Georgia-Fetcher vs. Peck. An act of 1796 impaired the obligations of contracts; 6 Cranch, 87. 1812. New Jersey vs. Wilson. An act of 1804, imposing the obligations of con tracts; 7 Cranch, 164. 1815. Virginia-Terrett vs. Taylor. Acts of 1798 and 1801 void. 1819. New Hampshire-Dartmouth College vs. Woodward; impairing the obliga tions of contracts; 4 Wheaton, 518. 1819. New York-Sturges vs. Crowninshield. Insolvent act of 1811; impaired the obligations of contracts; 4 Wheaton, 122. 1820. STATE RIGHTS IN OHIO. 413 States submitted, but a few struck back. In 1820 Ohio, then engaged in her struggle with the Bank of the United States,* declared that in respect to the powers of the governments of the several States which compose the Union and the powers of the Federal Government, she "recognized and approved the doctrines asserted by the Legislatures of Virginia and Kentucky in their resolutions of November and December, 1798, and January, 1800." New Hampshire replied to Ohio, asserted that Congress did have power to charter a national bank with branches in the several States; that the Constitution and the laws of Congress, made in pursuance thereof, were the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding; and that any law of Ohio which, if carried into effect, would injure the bank was an exercise of power vested in Congress, and would be void. Massachusetts was of the same opinion. A manifesto introduced into the Senate of Georgia declared she would take no part in the unseemly quarrel. Yet she believed the establishment of the bank was not warranted by the Constitution; she believed the presence of a bank on her soil without her authority was a usurpation of her sovereign power; and she would ask of what use were written constitutions if, by latitude of construction, they were made to embrace every power convenient for the 1819. Maryland-McCullough vs. Maryland, 4 Wheaton, 316. 1819. Louisiana-McMillan vs. McNeill. Insolvent act of 1808; impaired the obligations of contracts. 1821. Pennsylvania-Farmers and Mechanics' Banks vs. Smith. Insolvent act of 1812. 1823. Kentucky-Green vs. Biddle. Acts of 1797,1812; impairment of a contract. 1823. Vermont-Society for the Propagation of the Gospel vs. New Haven. of 1794; impairment of contract. Act 1824. New York-Gibbons vs. Ogden. Acts of 1798, 1803, 1808, 1811; regula tions of commerce. 1824. Bank of United States vs. Osborn, 9 Wheaton, 788. In the lower courts: 1819. Ohio Bank Tax case. 1823. South Carolina Negro Seaman Act. 1819. Kentucky Bank Tax case. 1820. Kentucky Occupying Claimant Law cases. * History of the People of the United States, vol. iv, pp. 498–50. party in control. Virginia, in 1810, had assured Pennsylvania that an impartial tribunal to try cases to which a State was a party was not needed, because one already existed in the Supreme Court. Now, alarmed by the action of that court in the case of McCullough vs. Maryland, her legislators joined in the cry for a tribunal before which might be tried all cases involving a conflict of State and Federal authority. The proposed amendment to the Federal Constitution was not offered; but the need of it became imperative when, a few months later, the famous case of Cohens vs. Virginia reached the supreme Court, and Marshall summoned the Commonwealth to appear on the first day of February, 1821, and ordered the papers to be served on her Governor. Then, again, Virginia went back to her position in 1793, reaffirmed the resolutions of that year, declared that the Supreme Court of the United States had no authority under the Constitution to examine and correct the judgment for which she had been cited to appear, and entered a solemn protest against the jurisdiction of that court over the matter. Kentucky by this time found another cause for alarm in the decisions of the inferior courts in cases arising under what were known as the occupying claimant laws. In 1789, when about to sever her connection with Virginia and apply for admission into the Union as a State, Kentucky entered into articles of agreement with her parent, and promised that all private rights and interests in land within her bounds, derived from laws made by Virginia prior to the day of separation, should remain secure and be determined by those laws. But Virginia had been at once both too liberal and too careless. She had disposed of more acres than Kentucky contained, and had allowed each holder of a warrant to locate his claim. wherever he pleased. It came about as a consequence that the same piece of land would be contended for by two persons, each holding warrants of equal dignity but of different date: the one an absentee, the other an actual occupant who had made a clearing, built his cabin, and cultivated the soil perhaps for a term of years. In the interest of these occupying claimants Kentucky, in 1797, placed a law on her statute-book which provided that when an occupying claimant was evicted 1824. STATE RIGHTS IN KENTUCKY. 415 by a better title he should be exempt from the payment of rents and profits accruing before notice of adverse title, and that the evicting claimant should be liable to a judgment against him for all valuable and lasting improvements, less the waste and deterioration of the soil by cultivation. Liberal as this was, it fell short of popular demand, and in 1812 Kentucky went further still, and decreed that the occupying claimant should be paid for all improvements made up to the day when judgment was given against him, whether the improvements were or were not valuable and lasting; and that no deduction should be made for waste and deterioration of the soil by cultivation before the day when suit was brought, but merely for the time between notice of adverse title and judgment. In the course of a suit under these laws before the Circuit Court for the district of Kentucky the question of constitutionality was raised. The judges were unable to agree, and the question was certified to the Supreme Court, where decision was rendered that the law of 1797 had been repealed by the law of 1812, and that each was a violation of the compact of 1789, an impairment of a contract, and unconstitutional, the one until it was repealed and the other since. it was enacted. By the compact of 1789, Kentucky had bound herself to decide conflicting land claims for all time to come by the laws of Virginia in force when the compact was formed. The excitement throughout Kentucky was intense. Our occupying claimant laws, said the Governor in his message to the Legislature in 1824, measures in which the State of Kentucky and many individuals have the deepest interest, call for your attention. The decision of the Supreme Court of the United States so materially affects the sovereignty of the State, degrades us so far below the level of our sisters, and works such manifest injustice to the real occupants of our soil under titles honestly derived, that we cannot be said to be a free people. Attention was immediately given by the Legislature, a memorial of great length was drawn up and presented to Congress,* and an earnest effort was made *Executive Papers, No. 69, Eighteenth Congress, first session, vol. iv. Presented February 9, 1824. by the Kentucky senators and representatives to secure an amendment to the judiciary act of 1789. The Senate committee on the judiciary were instructed to inquire into the expediency of so changing the act as to require that no State law should be declared unconstitutional by the Supreme Court unless seven judges assented,* and Van Buren from the committee reported a bill. But the sentiment in both House and Senate was strong against a change, and it was not considered. During the session of 1825 the effort was renewed,* and again nothing was accomplished. Kentucky now had a third grievance. Her Legislature had forbidden the State courts to issue the capias ad satisfaciendum against citizens of the Commonwealth. The Legislature had decreed that where a contract had not been recently made a replevin of two years should be allowed, unless the notes of the Bank of Kentucky or the Commonwealth Bank were taken by the plaintiff in payment. Both had been overruled. The District Court of the United States ordered that every judgment it issued should be discharged with gold or silver, with a replevin of but three months, and adopted a Rule of Court regulating its process and directing what should be the subjects of execution as to persons or property, and when, where, and how they should be levied on and sold. This was more than the people could stand. Blow after blow, it was said, has been aimed by the Federal courts at the powers of our Legislature, the only organ through which the people mould their laws to suit their interests and their policy. Unless these tribunals are effectually checked, nothing will soon be left to distinguish us from the subjects of Eastern monarchies. At a great popular meeting held in July, it was resolved that the Constitution did not authorize Congress to delegate to the Supreme Court nor to the inferior courts power of enacting or altering the execution laws of the States; that Congress had never even attempted to delegate such authority, that the system of execution laws lately enacted by the Fed *For the motion of Senator Johnson, of Kentucky, see Senate Journal, December 10, 1823, pp. 30, 41. Ibid., March 11, 1824, pp. 229, 232. Annals of Congress, 1823-'24, pp. 915, 916, 1291. # Annals of Congress, 1824-25, January 26, pp. 365, 370. |