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The next act is entitled "An act to increase the jurisdiction; of magistrates." The first section gives the jurisdiction respectively of debts and accounts not exceeding fifty dollars.
The third section increases their fees, as follows: ''in addition to the fees now allowed by law, the justices of the peace shall be entitled, for the trial of all sums over five pounds, viz: For issuing a warrant, . . ; . . $0 12 5 For giving a judgment, : -. . -. . 0 12 5 for issuing an execution, , . . .0125 For recording his judgment, . .• ; 0 1? 5 An appeal was allowed from this judgment to the circuit court of the county, where it was to be docketed as an original^ and like proceedings had on it.
The trial by jury was not provided for in this act, which; exposed it to be declared unconstitutional by the court of appeals; whence it was afterwards amended so that either party might have a jury if they desired it—and hence the law has been constitutional, say the courts
There is no reason why the law should not be constitutional^ only, as it has been shewn, a justice of the peace is not a court; nor can the legislature erect a court, and fill it with one, or more judges; nor can they make a court of any man, by giving, or attempting to give him jurisdiction by law.
When the legislature have in due course of law, Established' a court, they may prescribe its jurisdiction within the constitution; but the governor, by and with the advice and consent of the senate, is to appoint the judge, or judges: so says the constitution.
At this session, the occupying claimant law passed 1797, was amended. Rents were not tp, be allowed, prior td the rendition of a judgment, or decree, as the case might be, at law, or in chancery, in favour of the better claimant: hence it was made the interest of the party in possession under a bad claim, to postpone and put off a final decision, as long as possible; which the rents of the land enabled him to do. There was no saving of the rents to those who had commenced suits under the former lawf which entitled Vol. u;0 M**
them to rents, if successful, from the time the suit was instituted* ted, as an offset to improvements made on the land. The amendatory act, left the party suing, under the necessity of paying for all improvements, however useless, which the occupant should have put on the land at any time, or of surrendering his title to it, at the woodland price. Other changes were made, of but little importance, only as they contributed further to evince the progressive encroachments on the rights of real estate.
All seminary lands were by act of this session, permitted to be sold, through the instrumentality of the county courts.
"An act more effectually to suppress the practice of dueling," was passed at this period. The method proposed, and enjoined, was, to require of all legislators, governors, and judges, in short, of all civil and military officers, an oath "that he, or they (as the case might be) have neither directly nor indidirectly, given, accepted, or knowingly carried a challenge to any person or persons, to fight in single combat, or otherwise, with any deadly weapon, either in or out of this state, since the Jst of April, 1812; and that he or they will neither directly nor indirectly, give, accept, or knowingly carry a challenge to any person or persons, to fight in single combat, or otherwise, with any deadly weapon, either in or out of this state, during their continuance in office." And upon their refusing to take the oath aforesaid, their office was to become vacant, and to be filled in the same manner as if the party refusing had resigned.
Thus was the foundation laid for a new system of legislation—by way of amendment, and indulgence, from time to time, as application might be made. While, and it will be mentioned now, as not worthy of notice hereafter, that in the session of eighteen hundred and twenty-three, two of the members of the house of representatives refused to take the oath, and were permitted to take and retain their seats throughout the session. They were members of a majority, hereafter to be better known in the transactions of that year, by the name of the relief party; and afterwards, as Judge Breakers.
"An act to provide for the ascertainment of the boundary line between this state and the state of Tennessee," is abuudantly indicative of the object. The means proposed for its attainment, were "the appointment of two commissioners on the part of the state, who, with the commissioners to be appointed on the part of Tennessee, were to run and mark the line between the two states agreeably to the charter of king Charles II. and acknowledged by the twenty-fifth section of the declaration of rights, in the constitution of the state of North Carolina; and also acknowledged by the twenty-second section of the declaration of rights in the constitution of Tennessee: beginning on the top of Cumberland mountain, at thirty-six degrees thirty minutes north latitude, when accurately taken; and from thence to run west a right line, in thirty-six degrees, thirty minutes north latitude, so far as not to run into the lands claimed by the Indians."
But there had been a line run by Doctor Walker, as heretofore stated, upon different ground, which had been ascertained to be in favour of Tennessee; and which may be assigned as the reason why the commission failed of its purpose. The line of Walker was claimed by Tennessee, as having already delineated the charter of boundary to the Tennessee river; which limited the lands claimed by the Indians, and over which it was not proposed to extend the line: therefore, there remained nothing to be done.
Interest was allowed to be computed on judgments for damages rendered for all contracts in writing, for money, or tobacco, where execution should be delayed by dilatory proceedings on the part of the defendant, with a view to further litigation, if in the end the judgment was sustained. An important change in that part of the remedial system favourable to justice, and hence the more to be noticed; for it will afford a striking contrast with other acts touching the administration of that subject; which, it would seem, could only at intervals make successful efforts to reclaim her rights.
"An act to suppress private associations for the purpose of banking." The practice hereby attempted to be suppressed, was, no doubt, the commencement of great evils. The means proposed, were by assigning penalties on those concerned in
banking: and had the law been executed, would no doubt have put a stop to that species of fraudulent speculation. In future the subject will merit further attention.
"An act fixing the ratio and apportioning the representation for the ensuing four years," gives the following result, viz: seven hundred qualified voters for each representative; eighty representatives, and thirty-one senators. At this time there were fifty-six counties, among which the representatives were distributed as follows:
"From the county of Adair, one; from the county of Barren, two; from the county of Boone, one; from the county of Bracken, one; from the county of Bourbon, three; from the county of Breckenridge, one; from the county of Bullitt, one; from tbe county of Bath, one; from the counties of Butler and Grayson, one; from the county of Caldwell, one; from the County of Clarke, two; from the county of Campbell, one; from the county of Christian, two; from the county of Cumberland, one; from the county of Clay, one; from the county of Casey, one; from the county of Fayette, three; from the county of Floyd, one; from the county of Fleming, two; from the county of Franklin, one; from the counties of Greenup and Lewis, one; from the county of Garrard, two; from the county of Gallatin, one; from the county of Green, two; from the counties of Hopkins and Union, one; from the county of Hardin, two; from the county of Harrison, two; from the county of Henry, one; from the county of Henderson, one; from- the county of Jefferson, two; from the county of Jessamine, one; from the county of Knox, one; from the counties of Lincoln and Rockcastle, two; from the county of Logan, two; from the county of Livingston, one; from the county of Mercer, two; from the county of Madison, three; from the county of Muhlenberg, one; from the counties of Montgomery and Estill, two; from the county of Mason, two; from the county of Nelson, three; from the county of Nicholas, one; from the county of Ohio, one; from the county of Pulaski, one; from the county of Pendleton, one; from the county of Scott, two; from the county of Shelby, three; from the county of Woodford, two; from
the county of Warren, two; from the county of Wayne, one; from the county of Washington, three."
"An act to amend the act entitled 'An act to amend the law respecting cut money.'" The fourth section of the amended act was repealed. That enacted, that cut money should not .be received into the treasury after the 1st of April, 1812. The present act authorized its reception by weight, for three years from its passage.
The law for taking in lists of taxable property, was again amended. The amendatory act has only six sections; which principally relate to the duty of the commissioners, requiring them, among other things, to call on widows and infirm persons, for their lists—while the rest of the people, are to meet, or call upon them; subject to a fine upon his report to the county court, in case of failure. *
The revenue of the year, still on the increase, found the consumption equal to its product: expenditures may be set down at something less than ninety thousand dollars.
After the lapse of fifteen years of peace with the Indians, the fruits of General Wayne's victory and of Jay's treaty, the war was roused again, in October and November, 1811, by General Harrison. This gentleman, a native of Virginia, and the son of one of her former governors, became when young an ensign in the army, and a member of General Wayne's family. Possessing a versatile genius, he passed with much facility into the confidence of General Wilkinson, who served with and succeeded Wayne; although the two were in the relatioh of enemies in fact, and opposites in character. Harrison, in the sequel, holding various military situations from time to time in the frontier territories, was made governor of Indiana, superintendent of Indian affairs, and commissioner of the United States for the purpose of buying Indian lands. Offices which, it is believed, should never be united; because they are but too subject to minister to each others abuse. The governor holds the military power; the superintendent pays pensions, or annuities; the commissioner, by treaty, creates them, and stipulates payment in money, clothes, ammunition, &C.: creating thus, a circle,