Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1825-03-11
.dddress ets .tte Court IF appeals TO the people
of kcnfurby


act 10 repeal the law establishing the Court of
Appeals, md to rcorgarize a Court of Appeals
THIS ittc may perhaps convey TO you AN idea
that twas only intended by those concerned i'm
ITS passage, 10 remodel The pre- existing court.
i'ut II such he The idea conveyed y the ,tlc OF
the act, 1t IS certainly very erronneous and in
adequate idea OF The intention nf those WHO pass
edtha; ac!. Their intention was not to- remodel,
but TO abolish HE prc- existing Court of Appe,s
and to establish ne,r one, and such is the plain
import OF the provisions of the act. Its first
section IN sr bstance, repeats all previous acts Of
the Legislature concerning the Court of Ap-
peals, or giving ar allowing any salary or com
pensation to IN, Of It's ndges. The second de.
ciares that supreme Court shall de and IS
hereby e'ecfcd md estabi;Shca, Which shall he
styled the Court of appeals.n The third pro-
videS for the appointment OF Chief Justice OF
me STATE OF Kentucky, and three associate ius-
uccs, by the nomination AID appointment of the
Governor, with the advice and consent of the
Senate, who shall by viruc of their oict and
commissions, be the Judges and Justices of the
SAID Supreme Court: and the said Court OF Ap-
peals shall he constituted and held by and con
sist oil the SAID Chief Justice, and associate Jus
ticesi and 10 the Court thus stablishrd and CON
stiinted, the act in its subsequent provisions,
gives appellate jurisdiction. co-extensiVe with
the state, over the decisions of all the CoHrts of
tue ComtnonwC Jlth. 1t therefore expressly cs-
diction co-cNtensive with the state, and the pre-
existing coutt was supreme appellate court
with jurisdiction co extensive with the stale
But tic Judges o! the prc-eXstiig court, are not
made JUICES ofte court established bv This act
nor arc the Judges created by the act made
Judges ofihe pre- existing court. Fhe prc-eXisting
court, & he crctt.. b. the act must 4 ereiore
bedifcrcD courts, and both ftlcm must ex;s: If
one and the sam ti,ac, or one oftbem only. But
both cannot exist Tosupposc that there could he
two supreme appellate courts, with jurisdiction
cn-extcn>ive with the state, at the same lime
would be as absurd in politics, as itwuuld be in
physics 10 suppose that two distinct pieces of
matter might occupy the same space at the same
n0ment of time, ihc co existence o. the two
courts is therefore impossible, and If the act,
which thus on lis face purports TO erect and cs-
tabiisi supreme appellate court bc Vaii4l, Tie
pre-eXjstipg conrt must bv necessary Implication
be thereby abolished. Bnt the Intention of those
who passed Z e act TO abolish the pre- existing
court is not left be Inpied merely from t,e es-
adjustment Of another supreme appellate court,
necessary and inevitable rs such an implication
may be. For in TIE subsequent provisions of
the act they have in several instances, spoken
of the prc-eXisting court, a, the former court
of appeals, thereby admitting, that il once ey.
listed, but had ceased to exist; subsequently,
growing more bold they advanced, ana de-
terrnining TO leave no doubt upon the point, af-
they add '',ohich is herehy repeoied." They
also provide for the app jniment ola Dew clerk,
and empower fi.e court tn take from the
custody Of thcpre-exsting clerk all the records,
papers and public property in his possession
showing determination that the pre- existing.
court and cIcrii should act more
There can bc therefore no doubt ofthe inten-
ton Of the trainers Of this act to abolish the pre-
existing court, and all its Offices and TO erect n
new conrt in is stead. BIZ, in doing 50 we hold
ii TO be perfectly clear, that they have trans
ccnded The limits of the authority cQnf,lcd 10
them by the constitution, and usurpcd powers
not granted TO them by the people. To prove
t'is II is only necessary to show that Tie people
themselves, have, By their Own sovereign act os-
tablis''cd the pre-cxisting court of appeais-
The power of the people to create a Supreme
appellate court cannot he dispuicj and to do so
ii was only necessary for them TO declare tier
will that t9cre should be such court This
they have done IN the most explicit Terms in Tie
fourth article of the constitution. In the FIRST
section It's declared, thai 'tlIe judicial power OF
this CoGmonw Calih, both rs to matters of law
anA equity. shuttle ucsfcd in onc Supreme Courf
'Ciict siHV be SfVied The C0urj IF .fppeuis ana
IN such other inferior courts as the General As
seInhIy NAV from time 10 time, erect and cstab-
iish." IN The second section il is declared,
"TI,at The court Of appeals except in cases 9th
crwse directed bv this constitution, shall have
appellate jurisdiction only. winch si'ali ne eX
tensive with the state under such restrictions
and regulations, not rePugnant To this consti:u-
ton as NAV from firnc fo time he prescribed bv
law" The import OF these clauses cannot be
mistaken or misunderstood. Power is given to
thc Legislature, IT their discretion, To- erect and
establish inferior courts; but no such power is
given them, to erect and establish the supreme
appellate court. The language with respect to
It, is creative and imperative Its unity, its STU
premacy-its style name, and its appellate iu-
risdiction co-extensve with the state, arc fixed
by these sections, and must, by every candid
mind be conceded to be unaltcrable, BY any le-
gislativc act; and as we have already seen, te o
supreme appellate courts cannot exist at the same
time; so it IS no less clear that they cannot con-
sistenuy Will, the unity thus established by the
constitution, existIn Succession. The court which
prrccJes and ilit which succeeds cannot be one.
when the legislature has power To create n court,
they have doubt power to abosi, it, and when
they abolish one, they NAV create another, with
The same sttIa an juredlctiou, and they may
again abolish tie lauer and establish third in
its place and so ON in endless succession. But
the court which is abolished, and the court es-
tablishei in its stead arc not ono, bot two aud
as the abolition Of ono aud tIc establishment; oil
another IN It's place might progress the number
Of courts in succession would increase. The