right to such process as they required; which was to be execu ted by the sheriff, as in other cases. The arbitrators named, were to be notified, and when assembled, were to take an oath of impartiality-and then have power to hear and determine the whole matter before them; upon which they were to make their award, under their hands and seals-and return it to court--and there it was to be entered, as final-unless it was made to appear to the court, that it was procured by corruption, or other undue means--or was evidently partial. An appeal, however lay; if taken within three months.

The same fees, are allowed, as in other cases--except for the record--which the clerk is to make, for two shillings--and if the arbitrators ask it, they are to be paid nine shillings each, per day.

It is believed, that but little use has been made, even to this day, of this extraneous jurisdiction: it has been, however, occasionally resorted to; and the awards, rigidly supported by the courts, both inferior, and superior.

In the next year, 1796--the legislature again innovated on the laws of jurisprudence, under the title of "An act to reduce into one the several acts establishing county courts, regulating the proceedings therein, those concerning justices of the peace, and their jurisdiction"; with two others, hereafter to be noticed.

The act, of which the title has been recited, is substantially, a repetition of former acts, as to justices of the peace, and county courts. It declares, a competent number of justices shall be appointed in each county-directs their taking the oath--requires them to hold a monthly court, which is to be called "county court"; and prescribes its jurisdiction. Each county court is enjoined to build, where they are not already built, a good court house, and jail; and to keep them in repair. For the purpose of such buildings, the courts may severally purchase and hold two acres of land---to be paid for out of the county levy; which they were authorized to assess on free white males, and on all slaves, both male and female, over sixteen years of age.

This is a relict, of the Virginia mode, to which there is much adherence throughout the county court, and quarter session, system.

To return to the act-it also regulates appeals from single justices, to the county court--but says nothing of appeals from the court, to any superior tribunal. It is evidently exceedingly defective; but it has the benefit of all former laws-for it repeals none.

The next act to be scanned, according to the order proposed, is one of the same session, entitled, "An act to reduce into one, the several acts, establishing courts of quarter sessions, and directing the proceedings therein."

This act may be said to bear the same relation to the quarter sessions, as the last act did to the county courts. It establishes one in each county, to be constituted of three justices, to be appointed for that purpose; any two of whom to make a court. Their terms are fixed, to four times in the year; and the length of them determined: their rights, powers, and jurisdictions, prescribed as before; and to an equal extent without any that can be called quite new--clerks to docket causes, and apportion 'them for trial. The members of the court were to receive two dollars a day, while attending court, payable half yearly. In fine, a new court was constituted, in each county.

This act, like the other, had no repealing clause. And like the other, in another respect, it overturned the courts of quarter sessions, previously established, as that did, the county courts; requiring, new appointments, and commissions, to organize them. Thus affording examples of the perfect impotence of judicial systems, when opposed to a legislature, determined to see no obstacles in present institutions, to the unrestrained exercise of its will. That of the day, saw no obvious, and palpable violation of the constitution; and were but little disposed to seek, or admit, inferences, from collateral provisions, however direct, or forcible.

It was in vain to remark, that by the constitution, courts were to be ordained, and established--that the judges, were

commissioned "during good behaviour"--that they could not be removed by impeachment, without crime; nor on address, but for reasons to be entered on the journal; nor without the concurrence of two-thirds of each branch of the general assembly, in either case.

It was replied, that it belonged to the legislature to establish courts--that they could do it from time, to time--that these courts were filled with "justices," not "judges"--and that it would be a violation of good behaviour, for those whose courts were prostrated, to make any noise about it; or to pretend to claim the office, when it no more existed. If it was remarked that, the late court of oyer and terminer, had not been filled with "justices," but "judges"; and that it had also been abolished. Then, a very short answer would meet the case--"The power, was with the legislature, and there was none to hinder its exercise: they possessed the right of repealing the lawsthey enacted."

And so, it seems to have been, and still is. For if in any instance, the abolished court should make it a judicial question, and the court in the last resort, should consider the law abolishing the inferior court, to be unconstitutional, and void: if there was a majority in the legislature sufficient to pass a law, they might put down the court of appeals, in the same way; leaving it without defence, or support; except the judges should find it, from the people, by address, petition, or remonstrance or in the last struggle, an election; by which men of different modes of thinking, and acting, should be chosen to form the next majority, of law makers. Such a state of case cannot be contemplated without awful forebodings, that upon the mere constitutional question, the court would be left to sink under legislative preponderance. What other questions of interest, or party, might be mingled in the conflict, to produce a different result, is not to be foreseen; and would be unusefully conjectured.

This discussion, crude as it is, sufficiently shews the real weakness of the judiciary, when it may ever be opposed by a determined majority, in the general assembly. It is a defect

in the constitution; because it leaves the courts, and, even that, in the last resort-constituting, an entire department of the government, in a state of dependence for existence on the legis lature: while their independence, free of crime, and as judicial tribunals, is necessary, to individual safety, and the preservation of the social compact. It is believed that the constitution cannot be maintained, while the existence of the courts from the highest, to the lowest, inclusive, may be annihilated, by an act of the legislature.

For, it seems to be admitted, that the abolition of the office, dismisses the officer. To repeal the law establishing the court, is by consequence, to deprive the judge of his office; and that without any regard to his behaviour, good, or bad. In vain, then, did the constitution give the judge a commission "during good behaviour"-in vain, it required the concurrence of "twothirds" of his triers, to pronounce a sentence of removal, in one mode of proceeding; if the same men, by a "majority," can effect his expulsion from office, in another mode, of their own instituting.

To give stability to the constitution, and to secure a reasonable independence to the judiciary, the court of appeals should be permanently excluded from legislative abolition. And this would be the fair construction of the constitution. But those

who may choose to violate it, are not those who will construe it fairly. The prohibition should, therefore, be positive and explicit.

And now, to descend to other particulars. "An act giving further time to the owners of lands to survey the same, and for returning plats and certificates to the register's office;" being the first, which it has been supposed, interferes, with the third article of the compact of separation made with Virginia; it will engage, as it is believed to warrant, a measure of discussion here, and again at a more advanced stage of the history. The article of the compact, to which reference has been made, is in the following terms, viz:

"That all private rights and interests of lands within the said district, derived from the laws of Virginia, prior to such

separation, shall remain valid, and secure, under the laws of the proposed state, and shall be determined by the laws now existing in this state.”—Virginia.

The law of Kentucky in question, recites, that

"It appears, that an act passed by the Virginia assembly in 1785, entitled "An act to repeal an act entitled 'An act concerning entries and surveys on the western waters, and for other purposes;" which had been continued by subsequent acts; would expire before the same could be complied with: therefore,

"Be it enacted, That the above recited act be continued from the passage hereof; and the further time of one year, from the first day of January, 1794, be allowed the owners of entries to comply with the requisitions of the same: during which time no such entry shall be forfeited."

There were other provisions in the act of the same character as this; which it is unnecessary to recite, as all are either constitutional and valid, or otherwise.

Let it be next remarked, that the Virginia act, continued as above, provided: "That immediately after the first day of January, 1787, the surveyor of each county should notify the owners of entries for land within their county, or their agents, of the time at which they would respectively proceed to survey the several tracts entered in their books; and to enable the surveyor to give the requisite notice, the owners of entries then existing, unsurveyed, were required to appoint some person within the county where the land lay, as their agent or attorney, before the aforesaid first day of January; and who was further to give to the surveyor notice of such appointment, within one month thereafter-or on failure thereof his entry should become void:" with a saving in the case of infants, and prisoners in captivity. This Virginia act had been continued from time to time, by the legislature of that state; and once after the 18th of December, 1789, the date of the compact: which brought it down to the time alluded to in the act of Kentucky. The effect of all which was, if the two last acts were valid, to give the owners of entries, who had not appointed