USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 35
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Bessemer steel is known the world over; who knows aught of Murray steel? Robert Fulton is acclaimed as the father of steam navigation while John Fitch sleeps unhonored in a humble grave. The world is sometimes very unkind to those to whom it owes great debts.
At the disastrous battle with the English and Indians at Frenchtown, the details of which have been given. one of the gallant commanding officers of the Kentucky troops was Major George Madison who. with Major Graves, refused to surrender until the supply of ammunition was exhausted. and only then when the British General Proctor promised honorable terms and the protection of their men from Indian atrocities. Major Madison, by his gallant conduct on this and other occa- sions, had so endeared himself to the people of Kentucky that in 1816 they elected him governor of the state; Gabriel Slaughter, at the same time, being chosen as lieutenant gov- ernor. The gallant old soldier-governor did not long survive his civil triumph. After his dleath there was exciting discussion as to whether the lieutenant governor should suc- ceed him, or a new election should be ordered by the legislature. This was finally decided in favor of the lieutenant governor and Slaughter became governor.
During the administration of the latter the most important question arising was the ex- tinguishment of the Indian titles to that part of Kentucky lying west of the Tennessee river. steps to which end must be taken in connection with the United States government. The Chickasaw Indians had a valid claim to about seven million acres of land lying in Ken- tucky and Tennessee and between the Missis- sippi and the Tennessee rivers. This fertile body of land had never been included in any transfers covered by treaties with these In- dians, and it was important that some definite
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action be had by which the title could be taken over either the government or by the states of Kentucky and Tennessee. The United States in October, 1818, purchased this Indian land for $300,000, to be paid to the Indians at the rate of $20,000 each year for fifteen years. Kentucky's share of the land thus bought in- cludes the counties of Graves, Calloway, Mc- Cracken, Marshall, Hickman, Ballard and Ful- ton, which have ever since been designated as "The Purchase." This is the only land in Kentucky for which any Indian tribe ever re- ceived compensation.
In 1822, Henry Clay, as a commissioner for Kentucky met Benjamin W. Leigh, a commis- sioner for Virginia, to decide certain points of difference that had remained open since the erection of the district of Kentucky into a state. Virginia claimed the right to locate on the Purchase lands bounty warrants for the officers and men of her state troops. All the questions remaining open between the two states were satisfactorily settled by Messrs. Leigh and Clay, the legislatures of the two states ratifying the settlement thus made at their succeeding sessions.
During the session of the legislature, 1817- 18 forty banks were incorporated with a cap- ital stock, on paper, of ten million dollars. These banks instead of redeeming their notes of issue in gold and silver, were, by the terms of their charters, permitted to redeem them in the notes of the Bank of Kentucky which, of all the banks in the state, was now on a specie basis. The new banks started the printing presses to running ; immense numbers of their paper promises to pay were issued; every- body had money; therefore everybody was wealthy. These new banks were run in haphazard fashion. Some of them may have been controlled by men who knew at least the alphabet of finance, but most of them were not. Most of the officers meant well in the density of the ignorance of the basic prin- ciples of banking ; some of, them did not mean
well except to the advantage of their own pockets which they managed to comfortably fill. Speculation was the order of the day. Money makes money ; everybody had money, such as it was; why not make that money make more money? The shoddy banks made large loans to irresponsible borrowers who prompt- ly lost them in speculation. When pay-day came, as it inexorably does come, they had no means by which to meet their obligations to the banks. There could be but one result- the banks went to pieces, few of them surviv- ing more than a year; the others not beyond two years.
So great was the financial pressure brought about by this ill-advised adventure into the difficult field of finance by those who knew nothing of its intricacies, that the legislature at its session of 1819-20, extended the right to replevy judgments from three months to a term of one year. This appears to have been an absolute necessity. Everyone was in debt ; no one had money with which to pay his debts. Ruin could be, at least, temporarily averted, by legislative action. But this was only tem- porary for in 1820, the demand for further relief was so great that a majority of the members of the state senate and house pledged themselves to measures which would bring re- lief to the great body of debtors whose bur- dens were too great to be borne. It would seem to reasonable persons that such lessons as this would have a lasting value. These new banks had flooded the state with their notes and within two years, not only the banks which issued them but the unfortunates who held them were bankrupt.
In 1868, and for several succeeding ye.irs, there was a great body of otherwise intelligent men in the United States who demanded that the United States should put its printing presses to work turning out "greenbacks" until every one had all the money he needed. This in larger form, was what had been done in Kentucky fifty years before, and had the sug-
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gestion been adopted the United States and its people would have been bankrupted, as were most of the Kentucky people during their excursion into the realms of high finance.
In 1896, it was not the press which printed greenbacks that was appealed to, but the coin- age press which stamped the half dollar's worth of silver and made it a dollar. That this should be done by the government, free of charge to any one and without asking the con- sent of any foreign government, was declared to be a panacea for all the financial woes of the people, especially, it may be added, for those who owned and operated silver mines. This plan, like that of the greenback theorists, failed of adoption, very happily for all con- cerned as it now appears. It has been said that every man is capable of managing a hotel or editing a newspaper. Remembering the wild theories of finance that have been ad- vanced and advocated during the past forty- five years, one would be safe in adding to the would-be hotel keeper and the editor, the able financier who may be found on every street of the country's cities and at every cross-roads of the country's rural districts.
Returning to the situation in Kentucky, it may be stated that General Adair, the gallant old soldier, was elected governor in 1820. He approved of the acts of the legislature tending to the relief of the people. The independent bank charters were repealed in February, 1820: the Bank of Kentucky had suspended specie payments. Everybody wanted money ; nobody had any.
The legislature of that day seemed as inca- pable as the legislatures of today. To the cry for relief, it responded by chartering the Bank of the Commonwealth at Frankfort, which should have a branch in every judicial district of the state. This bank was authorized to issue irredeemable notes to the amount of three million dollars. The capital of the bank was nominal, not real. It is scarcely necessary to note what happened. In a little while it
took two dollars of its notes to buy one real dollar.
Judge Little in his "Life of Ben Hardin," says: "Almost everybody was in debt and a large proportion hopelessly so." Little fur- ther says: "Let it not be supposed that the legislative arm was idle in this emergency. It acted with as serene indifference to all con- stitutional, as of all financial principles. De- cember, 1819, an act was passed by the legis- lature to suspend for sixty days all judicial and execution sales. February, 1820, the right of replevin was extended from three to twelve months. In cases of imprisonment for debt (then an existing remedy in a creditor's favor) prison bounds were extended to the limits of each county town. In December, 1821, imprisonment for debt was entirely abol- ished. The right of replevin was then ex- tended from three months to two years, unless the execution creditor endorsed on the writ that notes of the Bank of the Commonwealth might be taken in payment. How this course of legislation would have culminated, if unin- terrupted. can only be conjectured . When it had reached this point, it was suddenly ar- rested by the adverse decision of a circuit judge.
In a case arising in the Bourbon circuit court in 1822, Judge Clark decided the two years' replevin law unconstitutional on the ground that so far as it was retroactive, it impaired the obligation of contracts and thus violated the constitution of the United States. Wide and profound was the sensation produced by this decision, and the unlucky judge was regarded as little less than a public enemy. The legis- lature having been convened in special session for another purpose, rushed to the rescue. May 18, 1822, Mr. Slaughter, member for Warren, offered a resolution in the house of representatives stating in the preamble that Judge James Clark had rendered a decision "in contravention of the laws of the common- wealth," had grossly transcended his judicial
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authority and disregarded the powers of the legislature. A committee was appointed to inquire into the decision of the judge and re- port.' On the 21st, the committee reported after having read Judge Clark's decision in a newspaper. "The principles and doctrines as- sumed in this opinion," says the committee, "are incompatible with the constitutional powers of the legislative department of the government, subversive of the best interests of the people, and calculated, in their conse- quences, to disturb the tranquility of the coun- try and to shake public confidence in the in- stitutions and measures of the government called for by the condition and the necessities of the people."
Judge Clark was ordered to appear before the house and answer the charge made against him in the committee's report. He did not obey the summons in person, but sent the fol- lowing answer in writing: "In pronouncing void a law that is incompatible with the con- stitution, the judiciary does not assume a su- periority over the legislature. It merely af- firms the paramount obligation of the funda- mental rule. It announces only that the will of the people, as expressed in their constitu- tion, is above the will of any of the servants of the people. The decision was given after the most mature deliberation which I was able to bestow and from a firm conviction of the principles there mentioned, and I must have been not only faithless to my conscience, but to the constitution of the United States and the dignity due the judicial office had I expressed any other opinion.",
This seems a manly response; such a re- sponse as any upright and fearless judge might be expected to make, but it fell on thorny legislative soil and brought forth wrath rather than conciliation such as might be expected in a reasoning body of men. In the house an "address to the governor" was prepared and offered, directing that official to at once re- move Judge Clark from office. A two-thirds
vote of the house was necessary to the adop- tion of this address. Fifty-nine representa- tives voted for, and thirty-five against the ad- dress, whereupon it failed of adoption not having received the necessary two-thirds vote; but had three others joined with the fifty-nine affirmative votes, it would have been the duty of the governor to declare vacant the office of a judge who had made a just decision in accordance with the law and his conscience.
The only proper remedy against the de- cision of Judge Clark was an appeal to the court of appeals and this was taken. At the same time there was pending in that court an appeal from a decision of the general court which was composed of two circuit judges. In this case, the lower court had sustained the constitutionality of the stay law. The ablest lawyers of that day argued the pending ques- tions before the higher court. It was not until October, 1823, when Judges Boyle and Mills in elaborate opinions, declared the re- lief law unconstitutional. It is not on record that the legislature attempted to "address" these judges from office. Judge Clark's de- cision had created consternation, but this was allayed in some degree by the opinion of the highest court in the state sustaining him. The ablest lawyers in the state, and there were many able men at the bar in those days, dif- fered as widely as the poles on the question of constitutionality. The older lawyers of to- day are not a unit in support of the decision, and it still affords opportunity for discussion. "Political party lines were abandoned in the storm that swept over the state when the de- cision was announced. Two new parties came into being almost momentarily. One of these, and apparently the stronger of the two, was unsparing in its denunciation of the court of appeals, the severest measures against that body and its individual members being threat- ened. The minority party, which sustained the court, was determined and yielded not an inch of ground on which it stood. The minor-
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ity, strong in its sense of the correctness of the position it had taken, calmly bided its time, confident that when the fierce storm had run its course and calmer judgment had come to the people, right and justice would prevail and be accepted by the masses.
The appellate court at this time consisted of a chief justice and two associate justices. John Boyle was chief justice ; Benjamin Mills and William Owsley were his associates; the three being very able lawyers and fearless judges."
Chief Justice Boyle, the elder of his asso- ciates, was in the prime of his intellectual fac- ulties. He was a native of Virginia, born October 28, 1774, and when but five years of age was brought by his parents to Kentucky. He had received a classical education under the tutelage of the Rev. Samuel Finley, a Pres- byterian minister. He studied law in Mercer county, under the direction of Thomas Da- vis, a man distinguished alike in law and pol- itics, and in 1797 returned to Garrard county where his father had finally settled, and began the practice of his profession at Lancaster. In 1800 he was a member of the legislature, and two years later, a member of congress, to which he was twice re-elected, declining a fourth term. He served as governor of the territory of Illinois by appointment from President Madison in 1808-9. On his return to Kentucky, he was tendered and declined an appointment as circuit judge, and in April, 1809, was appointed an associate justice of the court of appeals. There was an interesting circumstance connected with this appointment. Governor Scott had appointed Ninian Ed- wards, associate justice of the court of ap- peals; the latter had made large investments in Illinois lands and desired to remove to that territory. Boyle did not enjoy the governor- ship and desired to relinquish it. Edwards saw a way out of the dilemma. He resigned the position of associate justice and Boyle re- signed the governorship of the territory of
Illinois. Thereupon, Boyle was appointed associate justice and Edwards, governor of Illinois territory, an unfortunate transfer of official duties for the latter, as he lost a large portion of his fortune through certain con- gressional legislation. In this day of hunger for office, it is doubtful if such a transfer of official duties could be made as readily as in this instance. Few politicians of today relin- quish an office until there is more than an as- surance that they will secure a better one.
In 1810. Boyle was made chief justice of Kentucky, a position to which his learning entitled him. A distinguished jurist of Ken- tucky, Judge Little, has declared him to be "in all respects the leader of his associates and a model judge of the old regime." And that is the highest praise that could be accorded any man. In the days of the old regime, men were judges and not politicians. There was not a judge upon the bench, high or low, in Kentucky in those days, who would have stepped down from his high estate, to dabble his hands in the dirty pool of politics, or to direct the movements of a party in a political campaign. Alas for Kentucky! Her people have lived to see a circuit judge leave the bench to assume the direction of his party in a political campaign, and a judge of the court of appeals, a lobbyist before a legislative com- mittee. Verily, the times do change, and men change with them.
William Owsley, an associate justice, was born in Virginia in 1782. When he was but a year old, his father came to Kentucky and set- tled near Crab Orchard, in Lincoln county. He made the most of his meager opportuni- ties for obtaining an education and seems to have been reasonably successful. He taught school, acted as deputy surveyor, and as deputy for his father who was the sheriff of the county. John Boyle, who was afterwards to sit with him on the bench, encouraged him to study law and entering the latter's office, he was in due time, admitted to the practice of
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his profession in the courts of Garrard county, his successful opponent being Isham Talbott where he was immediately successful, Boyle of the same county as himself. In 1817, Gov- ernor Slaughter appointed him a circuit judge and in February, 1820, the same governor commissioned him a judge of the court of ap- peals to succeed John Rowan, resigned. being always his friend and faithful helper. He represented Garrard county in the legis- lature, in 1809 and 1811. In the meantime, he had been appointed by Gov. Scott, an as- sociate justice of the court of appeals, but the Judge Lucius Little, writing of this momen- tous period in the history of the state says : "Fortunately for the honor of the bench and the state, and the safety of the fundamental law, three men of more firmness, of greater intellectual and moral courage, or better fitted in all respects, to meet the issue forced upon them, never at one time adorned the bench of that Court." legislature having reduced the number of judges of this court from four to three, he soon afterwards resigned. A vacancy occur- ring in 1813, he was again appointed by Gov- ernor Shelby. Those who opposed the de- cision of the court on the stay laws, charged Judge Owsley, as they had charged Chief Jus- tice Boyle, with an adherence to the precedents of the English common law, inconsistent with its adaptation to litigation of a new coun- try and a Republican form of government. Those not familiar with the administration of the laws, will understand that in the absence of a statutory provision, the common law still obtains in this country. But at the period in question the sentiment against England was so intense that not even its admirable system of common law procedure was acceptable to the masses. To them nothing good could come out of the English Nazareth.
Benjamin Mills, the third member of the court, was a native of Maryland, born Janu- ary 12, 1779. He obtained his education at Washington, Pennsylvania, whither his fam- ily had removed, and afterwards studied med- icine. He was for a time president of Wash- ington Academy, afterwards known as Washington College and later and now bearing the high distinction of Washington and Lee University of Virginia. On the removal of his family to Bourbon county, Kentucky, he abandoned medicine and collegiate work, tak- ing up the study of law, to the practice of which he was admitted at Paris in 1806. He soon established an excellent practice and for six years represented Bourbon county in the legislature. In 1816 he was defeated for a seat in the United States senate by three votes,
"The judges," said the late Chief Justice Robertson, "were charged with arrogating by their decision supremacy over the popular will. Their authority to declare void any act of the legislature was denied. They were de- nounced by the organs and the stump orators of the Relief party as usurpers and self-made kings."
There sprang into existence in a single night, a full-fledged party, a mushroom growth, known at first as the Relief party and later as the New Court party, which was. destined to a brief but tempestuous existence, though, for a time, by its sophistry and the demands of self-interest, it dominated all the affairs of the State. It is not difficult to understand why this should be so. The people were deep- ly in debt ; they were honest people and wanted to pay their debts. They believed that the stay laws enacted by the legislature gave them an opportunity to do this and they viewed with little or no patience the decisions of the courts which interfered with their honest intent.
Years afterwards, when the panic of 1893 had deranged financial affairs and the masses were in debt beyond their power to pay, false prophets came preaching the free coinage of silver as a panacea for all woes of indebted- ness and the people heard them gladly. These
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were honest people, recognizing their obliga- tions and desiring to discharge them to the last cent. When in 1896, a prophet appeared among them offering a silver dollar as the solution of their troubles they flocked to his standard and six millions of them declared pathetically at the polls, their desire to have the government set its mints to work, coining, without money and without price, the silver which should set them free.
It is a callous spirit, indeed, which can con- template the helpless debtors of 1823 and of 1896, without a sympathetic feeling, however much he may differ from them as to the means to be adopted for their relief. Time
has shown them to have been in error in each instance, but it will never show them to have been otherwise than anxious for some means which would enable them to discharge their indebtedness to the last penny. That in each of these eras, demagogues took advantage of the situation to advance their own political in- terests in no wise reflects upon the honest citizenship which they misled. There are more honest than dishonest people in the world and the final outcome of all questions of policy, is that the right will prevail at the final issue and that the demagogue will lose his hold upon the people whom he misled.
CHAPTER XL.
RELIEF PARTY AND LEADERS-ANTI-RELIEF PARTY LEADERS-PROBLEMS OF RELIEF PARTY-A POLICY OF "EDUCATION"-RELIEF PARTY WINS ELECTION-LEGISLATED OUT OF OFFICE- NEW COURT OF APPEALS -- OLD COURT REFUSES TO DIE-REIGN OF JUDICIAL CHAOS-OLD COURT PARTY WINS-SHARP-BEAUCHAMP TRAGEDY-FALL OF NEW COURT-JUDGES BOYLE, MILLS AND OWSLEY.
In 1823, the Democratic and Whig parties vere temporarily retired from the political stage in Kentucky, to be succeeded by the Relief and Anti-Relief parties, in which Whig ind Democrat, erstwhile political foes, touched elbows in the ranks of one or the other of the iew parties, forgetful of past differences and fire with the enthusiasm of the new align- nent. A rehearing of the adverse decision of he court of appeals delivered October 8, 1823, had been asked for and denied.
After this denial, the ranks of the Relief party were closed up and the great struggle was on. When the legislature assembled in 1823, the discussion had been largely aca- demic. Judge George Robertson, an Anti-Re- lief man, had been elected speaker of the house notwithstanding that the Relief party had an apparent majority of sixteen. A high authority has stated that "a month later such a thing would have been morally impossible." The scattering vote, the element in every legis- lature which does not quite know what it be- lieves until it learns in which direction the majority wind blows, was consolidated into a compact mass and the Relief party was ready for active warfare, with a following more intensely partisan than the state had ever before known.
The greatest advocate of the Relief party was John Rowan, then a member of the house from Jefferson county. Rowan was a native
of Pennsylvania, a great lawyer and advocate. He had been a delegate to the constitutional convention in 1799 from Nelson county ; sec- retary of state under Governor Greenup; a member of congress for one term; five times a member of the legislature from Nelson county, and twice from Jefferson ; and by ap- pointment, a judge of the court of appeals in 1819, which position he had resigned in 1820. Col. John Mason Brown, a distin- guished lawyer at the Louisville bar, at the time of his death, wrote of Rowan: "His magnificent presence, his rotund and mellow voice, ready and apt flow of speech and a manner that was at once noble and aggressive, gave him complete domination over the ma- jority." He had no associate that was his equal in either learning or resource. Imperi- ous and forceful, he stood towering above all his associates, ready, willing and equal to meeting every attack upon the cause which he espoused.
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