heirs, (that is, to all the land which should Monroe? The difference between the amount not be necessary to pay the decreed debt,) of the decree and that given by the private could not, by any agreement with such of them contract was greater in the latter than in our as were present, extinguish the equity of those case. But that circumstance has no effect on who were absent merely on the ground that the principle which equally applies to both they were co-heirs, and much less on the cases. And in some other respects, as already ground that they were infants. He could not asserted, our case is stronger against the purfairly extinguish their equity except by pur-chaser than the case reported: 1. In ours a chasing it from them or their agent, and he stranger made the private and attended the could not repell it except by some fair claim public sale as a volunteer friend of unconscious against the land, or at least against them per- infancy; in the other, an adult brother and sonally. If he intended to acquire the interest joint owner made the private sale and atof the absent heirs by the arrangement with Jo-tended the public. 2. In the reported case seph Wilson, (their brother,) he did not ac- the purchaser was informed and probably be. quire it any further than the acts of Joseph lieved that the whole amount given by him were authorised or ratified by the others." was to be applied to the payment of debts for Again, on the next page, the court says: "Un-which the land was bound, and which, at least, der these circumstances we cannot doubt that, equalled its value, and may, therefore, have if Hicks had retained the land, the complainants would have been entitled to reclaim their respective interests in it subject only to the proportioned burthen of $41." And finally, on page 380, in disposing of the lapse of time, (15 years,) the court said: "And, as upon the pleadings, it is to be assumed as against him (Hicks,) that complainants had discovered the fact and their rights but a few months before the filing of their bill, and, as in cases remediable in equity alone on the ground of fraud or trust, time does not run as a bar until the facts for constituting the fraud or trust are known or should have been known to the party injured; and, as in this case, it does not appear that there was any circumstance known to the complainants which would have led them to such inquiry as would have put them in possession of the facts which occurred during the infancy of at least six of them we are of the opinion that neither the statute of limitations nor the lapse of time can operate as a bar to their claim." believed a sale of the whole tract would be necessary, and that, consequently, the infant owners would be benefited by his private purchase at once of the whole; but in our case Jacob had no such equitable excuse-he knew that a sale of more than half of the lot would not be required, aud that nearly half the sum he gave for the whole of it would be paid to the widow, to be used and spent as she might choose. And if, in one case the private contract bound Joseph Wilson and prevented him, as probably others, from bidding at the public sale, in the other case the private sale bound up Bainbridge, and certainly prevented him, and almost as certainly others, from bidding against Jacob at the decretal sale. In the case cited from 9 B. Monroe, the court also decided that it was incumbent on the purchaser, as in every case of constructive fraud, to prove satisfactorily some sufficient ground for barring the resulting equity. Then, to show such repellant ground, the burthen of proof devolved on Jacob. He has furnished no such proof. Then how can it be said that the principle of the decision in B. Monroe is inapplicable to our case? We have no doubt that the reported decision is right; and if it be, we cannot possibly see how the opposite decision in our case can be right. It is evident that the leading and decisive principle by which this court was led to adjudge Hicks, as purchaser for the amount of the decree at the commissioner's sale, liable to the infant owners, was that—as he, in fact, by an unauthorized private contract, gave a larger price estimated as the value of the entire tract, and which showed that more was sold by the com- And as to the lapse of time also, our case is. missioner than he was authorized to sell or much stronger than the other against its opwould probably have sold had there been no eration. In the latter there was nothing but such private sale, and that, therefore, the in- infancy, and the constructive admission, by fant owners, who were not bound by that pri- the answer, of the alleged non-discovery. In vate contract, still retained their equitable ours the same reasons are conclusively fortiright-consequently the purchaser thus, acqui-fied by the nature of the case and by several ring the legal title held it by an implied trust, additional facts indisputably proved. to their use. In applying that principle to Wherefore, as counsel for Simrall's heirs, the facts of that case, the court only recognized the undersigned feel constrained to ask the a long and well established doctrine of our court for a re-argument and thorough reconequitable jurisprudence. That was undoubt-sideration of this case; and, while they most edly the ground of the decision against Hicks earnestly desire, they cannot but confidently and adjudged, as itself alone, a sufficient ground hope, that their petition will be granted, for even if actual fraud had been an additional the following principal reasons: ground. Then, so far as Simrall's heirs claim relief in this case, in what essential feature does it materially differ from the case in 9 B. 1. Because they desire, and the case eminently deserves, a careful investigation and deliberate decision by a full court-only three of its members participating in the opinion as rendered. 5. Because as the most illlustrious old Judges of England commended their decisions 2. Because, for reasons herein suggested and harmonized the law by their prudent habit and others which would be urged in a re-argu- of disregarding the false pride of prompt and gument, they believe, and, with becoming re-infallible judgment and considering only their spect, declare that the decision sought to be judicial duty and reputation, and therefore reviewed is radically wrong, is inconsistent with the principle of a former decision approved by the country, and is founded on deductions not only unsustained by the facts stated in it, but effectually repelled by other facts not stated and probably not noticed by the court; and they, therefore, respectfully suggest that, should the court even adhere to the same judgment, it is due to the parties, to the court, and to the Kentucky bar that the judgment should be accompanied by a statement of all material facts as appearing in the record, and should be made to rest on some other, and more tenable and consistent ground than that on which the late opinion seems to place it. 3. Because, with equal confidence and respect, they believe and declare that these two decisions, so antagonistic in effect, are based upon a perfect parallelism of principle and essential facts, and cannot, therefore, both stand; and that, consequently, the dignity of our jurisprudence and the authority of our adjudged cases would be promoted by such changes of the one now within the power of the court as to make them appear to harmonize on the facts as they really are. 4. A reconsideration and decision by all the Judges will make its final opinion, whatever it shall be, more authoritative, more satisfactory to the unsuccessful party and to the profession, and doubtless far more satisfactory to the court itself. patiently, and even anxiously, re-hearing new and important causes until they were perfectly satisfied-so this court, by following that safe and wise example in such cases as this, would relieve itself of all unquieting apprehension of judicial error and injustice, and would greatly commend its own decisions, exalt its own character, and ensure that general confidence and respect which the public interests require that a court of the last resort should command and possess. Moreover a reconsideration can do no harm, and may do much good; for, if it shall only confirm the opinion delivered, the result will be more satisfactory and the decision more authoritative; and, if it should lead to any essential change in the opinion, the court would be rescued from the possible imputation of hasty error, and would probably rescue suffering litigants from injustice. 6. Because the decrce of the court may be consistently reversed in such manner as to leave Jacob a handsome speculation on his little investment, and, at the same time, secure to Simrall's heirs a very comfortable portion of that patrimony of which, by an illegal act, he has so long deprived them. And surely, in such a case, if the court should be perplexed with doubt, it ought to incline to a decision so harmless to the one party and so beneficent to the other. ROBERTSON & MOREHEAD. PRELECTION, Having been elected three times successively to the House of Representatives of the United States from "the Garrard District," Mr. Robertson resigned the whole of his third term, and made the following Valedictory Address to his constituents through "The LUMINARY," of the 11th May, 1821. VALEDICTORY ADDRESS. To the Electors of the Seventh Congressional District of Kentucky: FELLOW-CITIZENS-I have this day resigned my seat in the Congress of the United States. This I considered proper, after the most grave and deliberate reflections on my duties to you, and to those to whom I am bound by other and more sacred ties; and I hope you will believe that I have not taken this course from motives of interest or convenience, nor without the most respectful attention to your claims on my services, and a becoming sense of gratitude for your kindness and indulgence. If my circumstances and private duties would have permitted me to consult freely my own inclination, I would have remained in your service as long as my conduct should obtain your approbation and your suffrage. No situation under the Federal Constitution could present as many attractions to my taste, my patriotism, or my ambition, as the one which I have now abandoned; and no ordinary consideration could have induced me to relinquish it; but the health and condition of my family-their increasing claims on my care and attention-and circumstances of business and fortune, left me no prudent alternative. I determined, therefore, after some hesitancy, and the most anxious endeavors to ascertain my duty, to retire from a station in which I believed that I could not much longer continue without a violation of the most sacred and paramount duties. And having formed this resolutiou, I considered it my duty to execute it without longer delay, for the purpose of giving you sufficient time to select with full discretion a successor, and without unnecessary inconvenience, at the next annual election of State Representatives. I hope that the time which I have given you will be amply sufficient. I would have given you even more, if I had not felt it my duty to give a respectful consideration to the opinions and solicitations of friends. When you duly appreciate the motives which, (and which alone) influenced me on this occasion, I have the fullest confidence, from the liberality and indulgence with which you have always considered my conduct, that you will approve my resolution, and acquiesce without censure, in my decision. It is under this hope, and for this purpose that I now, for the last time address you. It is, I assure you, with reluctance and regret, that I leave your service; reluctance produced by a recollection of the strong obligations to serve you, which your repeated acts of favor have imposed on me; and deep regret resulting from the nature of the circumstances constituting the necessity which has controlled my decision. But, among the many embarrassments with which, in coming to this decision, I have been perplexed, I have derived gratification and encouragement from the conviction that, if my services could, at any time, be considered of any value, there is nothing in the present condition of the country that could oppose my retirement now; and that all the circumstances of the time I have selected, are as favorable to it, as any that might ever occur. I am happy on this occasion in being able to congratulate you on the enviable condition of our country in all its great interests and relations. Never did more tranquility, peace and concord pervade the Union than at this moment; and never was there, in any country in my opinion, less necessity for national legislation. I believe that the less we legislate, under existing circumstances, the more we shall consult the substantial and permanent good of the community. If we rely, as becomes us, on our physical and moral capacities for the principal means of happiness and competence-if we encourage industry, economy and public spirit, and by a liberal and diffusive system of education, literary and moral, bring into useful operation the latent energies of the rising generation-if we will adopt and inculcate enlightened, liberal and elevated notions of government, and of the social, religious and political rights and dutiessuch is the benign genius of our institutions, and such is the happy posture of the affairs that concern our welfare as a nation, that we may reach the proudest destiny with which hope has ever flattered us, without the constant multiplication of laws, or an habitual depenpence on the supposed magic of legislation. All things duly considered, we have very little cause of despondence or complaint, and much of exhiliration and mutual felicitation. Never, (I believe,) could the people of the United States say with more sincerity and truth to the national legislature, “LET US ALONE." The most prominent circumstances, international and domestic, which have for some time agitated our counsels, and menanced the harmony and integrity of the Union, having been satisfactorily arranged during the last session of Congress, the prospect before us for years to come, in the most comprehensive survey, presents, in the great outline of national prosperity an encouraging view, and anthorizes the most animating hopes of the longevity of our institutions, and of the independence and happiness of our people. I am happy, therefore, in believing, that if, under any circumstances, my feeble talents and the little experience which I may have ruins without emotions of sorrow, surprise or acquired in national legislation, could be con- resentment, looking in triumph to its day of sidered by my warmest friends of any advan-resurrection. All who engage in political tage to your rights, your interests, or your warfare should be thus shielded, if they wish honor, the auspicious circumstances under to avoid ultimate discomfiture and disgrace. which I retire, diminish their utility so much, A firm and honest man should always be conthat whether I remain longer in your service tented under the consciousness, if he fall, of or not, becomes of very little concern, except having done his duty. He has also for his to myself, especially as you will have no diffi- encouragement an assurance from the testimoculty in finding others willing and able to serve you, who have stronger claims on your confidence and favor than I can have any hope of possessing or deserving to enjoy. py of all experience, that if, in the storms of shall be, for awhile, overwhelmed, and lighter bodies should be permitted, for a moment, to faction or momentary popular commotion he In taking leave of you, I have the satisfac- reason and the calm of sober judgment will soon mount the bursting wave, the sunshine of tion of a strong assurance that, whilst in your return and find him on a proud eminence high service, I have done my duty. I know I above those ephemeral favorites who could honestly endeavored to do it, by an undeviating vegetate and flourish only in the beams of popadherence to those maxims of public policy ular favor, and Cameleon-like, live by snuffing and public duty which my own judgment and air-the breath of popular applause. "Popuconscience recommended to me as best adapted lar applause" is gratifying to all good men, but to promote the honor of the government and there is danger, if pursued too eagerly, of its the good of the people; disregarding as far as becoming an ignis futuus to decoy us into error. possible, personal and local considerations. No wise man will be insensible to the approMany could have served you more ably, but bation of his fellow-men, or indifferent about none more faithfully. That I have frequently obtaining it; but no honest man will ever aterred is probable, but I flatter myself that my tempt to obtain it in any other way than by errors were venial; and I am proud in being endeavoring to deserve it. able to say that I have no recollection of having which is gratifying to an honorable and eleva been reproached either by you, or a disappro- ted mind, is not that evanescent capricious The popularity ving conscience, with any aberration from thing that must be conciliated by caresses, the principles of political rectitude, or any de- and purchased by dishonest compliances, but reliction of public duty. My public life has that high and constant sentiment of esteem been short and humble; it furnishes no which follows virtuous actions, and is their incidents to flatter pride or gratify ambition. best reward, next to the approbation of a sound If in the stormy and difficult times in which it conscience, which it will, sooner or later, gratwas spent, it has been disinterested, firm and ify and prosper. straight-forward, I shall have fulfilled in its results, all my expectations, and have de-bation, but more so to secure that of my own 1 have been anxious to obtain your approserved as much commendation as I have ever consciencc. The last I know I enjoy the desired. If, in reviewing it, I see nothing to first I have endeavored to deserve. And I enbe vain of, or to extort the applause or admi-joy a sentiment the most gratifying to my feelration of others, I see, what is more grateful to ings, in having good reason to believe that my my feelings, that it exhibits nothing of which feeble efforts to do my duty, in your service, I am ashamed, or of which on mature reflection while they excite no sensation of remorse in I repent. But while I recollect no act of my my own bosom, have been crowned with your public life which I would alter, I confess, approbation which is the consummation of my that I have, more than once, done that which hopes, and the highest achievement which my I regretted, and still regret, being compelled ambition ever sought or my vanity expected. to do by convictions of public duty. In other words, my votes have not always been in ac- between us as constituents and representative The connexion which has hitherto subsisted accord with my feelings. Political life, how-being now dissolved, I avail myself of this first ever humble or uuambitious, is beset with many moment after becoming a private citizen, to difficulties, trials and perplexities; it is the cru- tender you, in the plenitude of unmixed gratcible of merit, the ordeal of virtue and energy. He who expects to pass through unhurt and self-satisfied, and wishes to be able, when at his journeys' end, to look back, without shame or remorse, on the various meanderings and multiform incidents of the mazy path which he has followed, must be prepared to do many things incompatible with his individual interests, and repugnant to his personal and local predilections. He must expect to be instructed by the suggestions of an unbiased judgment, frequently to do that which, while his head approves, his heart abjures. He must be prepared too, to smile with unmixed contempt at causeless abuse, and to see his popularity in itude, my warmest acknowledgments for the welfare, individually and collectively, and Your friend, and your humble servant, LANCASTER, 1st May, 1821. |