on the table the 15th, was called up; and are in the following words:

"Whereas it is represented to the present general assembly, that two of the judges of the court of appeals, to wit: George Muter and Benjamin Sebastian, at the last term of said court, did give an opinion and decree, after solemn argument in the case of Kenton and McConnell, &c. that are contrary to the plain letter, intent and meaning of the act entitled "An act for adjusting and settling the titles of claimers to unpatented lands under the present and former gevernment previous to the establishment of the commonwealth's land office." Which said opinion and decree are subversive of the plainest principles of law and justice, and involve in their consequences, the distress and ruin of many of our innocent and meritorious citizens. And whereas the said George Muter and Benjamin Sebastian, who gave the opinion and decree aforesaid, must have done so either from undue influence or want of judgment; as said opinion and decree expressly contravene the decisions of the court of commissioners, who were authorized to adjust and settle titles under the said recited act; and also contradict a former decision of the late supreme court for the district of Kentucky, on a similar point-whence arises a well-grounded apprehension, that the said George Muter and Benjamin Sebastain are altogether destitute of that judgment, integrity and firmness, which are essential in every judge, but more especially in judges of the supreme court: and that there is no security for property, so long as the said George Muter and Benjamin Sebastian continue as judges of the court of appeals.

"And whereas also, the constitution provides that for any reasonable cause which shall not be sufficient ground for impeachment, the governor may remove any judge of a superior or inferior court, on the address of two-thirds of each branch of the legislature-and the legislature deeming the beforerecited case proper for their interposition and address:Therefore,

"Resolved, That the said George Muter and Benjamin Sebas tian ought respectively to be removed from their office of judge

of the court of appeals; and that a committee from each branch of the legislature be appointed, and join to prepare an address to the governor for that purpose."

Upon this being put to vote, it passed in the negative, by a majority of three votes.

The subject being, nevertheless, resumed in the senate, the following resolution was passed in the affirmative by a majority of one:

"Resolved, That it is the opinion of this house that the judges, Muter and Sebastian, in the case of Kenton vs. McCon nell, have given a decision contrary to the plain meaning and intent of the law; that their decision if established will contravene the purpose of the legislature of Virginia in establishing a board of commissioners to grant settlement rights to certain settlers, in the western country, and that it will do injustice to many of the first settlers in this country; which decision we believe, from what appears at this time, proceeded from a want of a proper knowledge of the law, or some impure motives, that appear to discover a want of integrity."

On this resolution's being sent to the house of representa tives, it was considered; and being put to the vote, it passed in the affirmative, by a majority of three. But the constitution requiring concurring majorities of two-thirds in each house, to carry an address, it failed. While the two judges, left safe in their office, should have borne the recent escape with a dignified silence. They however, made a clamorous appeal to the people, in a pamphlet of about thirty pages, in which they displayed a want of candour, as well as of prudence; censured the legislature in general; and personally abused some few members, who had been active against them.

But to what purpose appeal to the people? unless it was with a view to the next election, and that they should leave out such as had censured them, and elect such as would applaud them, at the next session. Upon the whole, it seems that the conduct of these men demonstrated as many errors, and as much weakness, as could well be crowded into so sort a transaction. The best exculpatory defence which they proba

bly could have made against the charge of want of integrity, would have been the admission of the influence of Colonel Nicholas, who was attorney for McConnell; and which had indeed, become proverbial. However, at the next spring term, Muter joined Wallace, when the former decree was set aside; and one in the direct reverse, substituted in its place: Sebastian, as it was said, "stiffly holding to his iniquity." His error was however thought apparent. It will be set forth, in the following brief narrative.

Upon inquiring into the facts, it was ascertained, that the conflicting claims to the land as adjudged to the parties, by the commissioners, did not at all interfere-that the conflict had been produced by McConnell's surveying his claim, out of his own location, upon that of Kenton-and that having the elder patent for the land, he would hold it, unless Kenton could establish his prior equity: and which depended on the legality of his grant of right, by the commissioners. If the court would open it for reinvestigation, as well as on the goodness of his location, he incurred a double risk. But his location was good; and that reduced his adversary to the other point. The commissioners' grant was therefore attacked; and the court, (Wallace excepted,) permitted it to be opened, for readjudication, contrary to a former decision of the old supreme court, in a similar case. This point being gained for McCon nell, it was contended, that the judgment of the commissioners was erroneous; for that Kenton, upon the face of his certifi cate, from that court, was not by law, entitled to a settlement, and pre-emption: and hence, that his claim was illegal, in its foundation. This was also conceded by the court; and made the basis of their decree: with what propriety, will appear after seeing the law, and the certificate of the court of commissioners. It will be recollected, that under the law as already stated, there were two species of settlement rights-one called an actual settlement, the other a village settlement: as to both without distinction, the law declared "that no family shall be entitled to the allowance granted to settlers by this act, unless they have made a crop of corn in that country, or resided

there at least one year, since the time of their settlement.? In the case before the court, both the claims were "village rights"-McConnell's had been granted, "for raising a crop of corn in the country;" Kenton's "for at least one year's residence in the country; being from 1775 to 1779." As applicable to these premises, the following quotation is made from the opinion of the court: "That the court of commissioners, was a court of a special and limited jurisdiction; that they have exceeded their power, in granting settlements, and pre-emptions, for residence; and that such certificates may be set aside at any subsequent time; and therefore a certificate, which on the face of it appears to have been given for services, for which the law did not authorize a certificate to be granted, must be void; because the commissioners, from their own shewing, have exceeded their jurisdiction; and as far as they have done so, their judgment can never be opposed to a legal right." Hence affirming, by their decree, that McConnell's was a legal right, as it was for raising a crop of corn in the country: while Kenton's was illegal, because it had been granted for residence: although, as already seen, the law had placed the two kinds of claim, on the most perfect footing of equality. Not forgetting, that the meritorious cause of both, was a settlement in the country; about which there was no controversy; the certificate to Kenton, was prior to that to McConnell; and each expressed "that the land claimed and granted, had been improved."

So much for the merits of the conflicting claims-which could but make a part of the inquiry by the house of represen tatives, who took up the case on the record, in order to be informed whether an error, or no error, had been committed by the accused judges; and by which they were to be governed in their vote on the resolution.

And now, after the lapse of nearly thirty years, and the most dispassionate review, there is no material error perceived in the procedure of the house; unless it was in taking up the resolution of the senate, which it was known had not passed by the competent majority for an address, and could only amount to a censure at most, without affecting the office of the judges.

But certainly, it violated no constitutional right; and was a matter of expediency only, whether the house would reprehend or not, the judges, who were left in office. The effect of the censure is believed, to have been salutary. For it is quite probable, that but for this, the settlements, and appendant preemptions, to a great extent, would have been destroyed by subsequent entries on treasury warrants. The doctrine how ever, subsequently established in the court was "that to the extent of the commissioners' certificate, their judgment was final; and not to be opened." A point of the utmost impor

tance.

That the house of representatives, possessed the constitutional right to institute the inquiry, and call on the accused judges, to appear, and answer, if they chose, there can be no doubt. That their contumacy could not arrest the proceeding, seems quite as clear: and also that the contempt might have been punished.

That the resolution on which the house acted, the 19th of December, presented in due form the grounds of the proposed removal, by an address, cannot be denied-that it was intended to have moved for a summons on it, is probable, had not the letter of the accused judges, put the house at defiance-and shewn that they did not mean to appear to defend their decrees, or judicial opinions; which clearly exempted the house from exposing itself to a repetition of the recent insult, or else laid it under the necessity, of punishing it. They preferred the first and proceeded. But if they could not proceed without the presence of the accused, then they should have been attached, and brought up in custody: otherwise their honours could defeat an inquiry into their conduct-produce a failure of jurisdiction, founded on clear constitutional provision; and justice itself, not be administered, though urgently demanded.

To bring this case to a close, it will be remarked, that corruption is by no means a necessary ingredient in the charge against a judge, in order to his removal from office. There are many ways, of committing a "breach of good behaviour." But was corruption a necessary part of the charge, it might