USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 36
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On the Anti-Relief side, there stood high among his associates George M. Bibb, a great lawyer, who had been the chief justice of the court of appeals and a United States senator. By his side, as able lieutenants, were W. T. Barry, Amos Kendall and Francis P. Blair, the former being lieutenant governor with the high qualities of a popular orator. Ken- dall and Blair, in later years, were to assume prominence as national characters. With
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these, there stood, also Crittenden, Robert- son. Green, Wickliffe and Hardin, the latter that distinguished Kentuckian who was later to be known in national, as in state affairs, as Ben Hardin, to whom John Randolph the ec- centric Virginia statesman, applied the soubri- quet of "Kitchen Knife," in recognition of his sometimes rude but always forceful attacks. It is claimed that Mr. Clay was in sympathy with the Anti-Relief party, but had in a pri- vate letter expressed the determination to take no part in Kentucky politics, his great mental powers being, at that time attracted toward national affairs.
The Relief party was prepared for action, but hesitated in deciding what that action should be. The appellate court had given its decision against the constitutionality of the relief laws already enacted by the legislature, and had refused to grant a rehearing. The legislature had attempted to "address" Judge Clark out of office and had failed. The peo- ple were in admitted distress, yet were con- servative, and the masses had high respect for the courts. They desired relief; indeed, they were entitled to relief, but in what shape should it be offered thiem? A mistake upon the part of the majority in the legislature would be fatal, yet something had to be of- fered the people. What should it be, in what shape should it come? That was the great question confronting the Relief leaders. They had a majority but not a two-thirds majority, and hesitated at an attempt to "address from office" the judges of the court of appeals who had rendered the obnoxious opinion. Sup- pose they could procure the necessary major- ity and force these judges from office, whom would Governor Adair appoint in their places? He was a man who had nobly served his coun- try in war and in peace. Unjustly or not, he had been suspected of sympathy with the projects of Aaron Burr. It is simple justice to say, even at this late date, that there was no more than a suspicion to that effect and
never any proof. He seems entitled to some- thing more than the Scotch verdict, "not proven."
Governor Adair was an old man; he ad- hered to the majority but kept on good terms with the minority. In latter day political phraseology, it is feared that the governor would now be accused of "carrying water on both shoulders."
The majority were afraid to proceed to ex- treme measures, while uncertain as to the ac- tion Governor Adair might take. They de- cided upon a policy of education for the peo- ple, showing them the errors of the appellate court and teaching them that all power rested in their hands and flowed from them at the polls to the men whom they selected to rep- resent them, and that any executive or judi- cial interpretation contrary to the will of the legislative body "uprooted free government."
Mr. Rowan, probably the author of this theory and certainly its exponent, introduced in the house a preamble and resolutions, the latter covering less than one page, while the preamble required twenty-six for its com- plete setting forth. This was certainly a fair illustration of thundering in the index.
The concluding sentence of this volumin- ous protest which was probably not under- stood by one-half of those members who gave it their support was as follows: "The mem- bers of the legislature, while they admit the power of the court to declare any law uncon- stitutional and void which is obviously and palpably so, feel themselves reluctantly con- strained by the most solemn obligations of duty-obligations of duty to themselves, to their constituents, to posterity and to the prin- ciples of rational liberty throughout the civil- ized world-to make their deliberate protest against the erroneous and usurping doctrines of that decision."
In other words, the legislature was called upon to usurp judicial authority and declare for itself what was or was not constitutional,
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when a decision of the courts ran counter to its own opinions, though the constitution makes equal the Executive, Judicial and Leg- islative departments.
The resolutions, happily less extensive in form, were in keeping with the preamble, and denunciatory of the decision as "subversive of the dearest and most invaluable political rights," declaring if it were not reversed by the court, the legislature should withhold fa- cilities for its enforcement and should also deny the agency of ministerial officers in prop- agating its eroneous doctrines. "The legisla- ture," it said, "should repeal laws believed to be constitutional, when not expedient, not the courts." There followed the introduction of this revolutionary preamble and resolutions, a spirited and able discussion, but the oppo- sition was of no avail, as they were adopted by the large majority which the Relief party now had in the house.
It was now important to educate the people into a belief that the preamble and resolutions were not only law but gospel. A state elec- tion was imminent and it was apparent that the political division would be upon the ques- tion of Relief.
The older political parties, at that day, had not adopted the now familiar practice of presenting political platforms. Political prej- udice had hitherto been "a good enough plat- form until after election." Now, however, the Relief party had a platform in the pream- ble and resolutions drawn by Mr. Rowan and adopted by the legislature.
At the approaching election in 1824, a gov- ernor and other state officers were to be cho- sen. As has been stated, there were, for the time being, no such parties as the Whig and Democratic parties. In their stead, for the coming election at least, the parties were Re- lief and Anti-Relief. A distinguished gentle- man of that day, writing of the situation, said: "I fear our state will undergo a degree
of excitement and division of parties that may disturb it for years to come."
The Relief party named for governor, Joseph Desha, and Robert McAfee, for lieu- tenant governor ; the Anti-Relief party nom- inated for governor Christopher Tompkins, and for lieutenant governor, W. B. Black- burn. The counties, contrary to the practice now prevailing, put forward their strongest men for the general assembly. The contest was a memorable one, and at the election, then held in August, the Relief party won. As is now the case, only half of the senate was chosen. the remaining half holding over from the previous session. That body stood twen- ty-two Relief and sixteen Anti-Relief. In the house, numbering one hundred members, sixty-one members were of the Relief party ; thirty-nine, Anti-Relief. The popular vote for governor was as follows: Desha, 38,378; Tompkins, 22,499.
There were changes in the house member- ship, but it remained a very strong body. Mr. Rowan came back as a matter of course. The Anti-Relief party lost in numbers, but made some strong intellectual gains. James Simp- son, who came from Clark county, was after- wards an able member of the court of ap- peals, as was Daniel Breck, who with Squire Turner, an able lawyer, represented Madison county. Henry Crittenden, afterwards a member of congress, came from Shelby ; Rob- ert Wickliffe from Fayette, and Ben Hardin and Ben Chapeze, from Nelson. Judge Lit- tle, who has known many legislatures, says : "Rarely has a legislative body averaged so well in talent."
When the legislature assembled Novem- ber Ist. it was organized, of course, by the Relief majority, Robert J. Ward, of Scott, a new member, being chosen speaker.
This legislature, like its predecessor, seemed to believe in the value of preambles and reso- lutions, especially where they were of great
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length and filled with high sounding phrases. The recalcitrant judges having failed to re- verse their decision, or to resign, on the 20th of December a long preamble and resolution were offered in the house "addressing" the judges out of office, but this failed to receive the required two-thirds affirmative vote. The senate, foreseeing this result, had approached the subject from another angle, and on De- cember 9th had passed a bill repealing all acts establishing the court of appeals and providing for its reorganization. The court of appeals was established by the constitution, but its or- ganization was left to the discretion of the general assembly in establishing the number of judges which had long since been done. The appointment of the judges was by the governor, "by and with the advice of the sen- ate." The house consumed three days in the discussion of the senate measure. The debate was able and spirited, the great Ben Hardin consuming a great part of the time in an able legal argument against the senate measure. There was great tumult and disorder in the house. The governor, contrary to precedent, was on the floor in the interest of the senate bill. It would be impolite to accuse so ex- alted a human being as a governor of lobby- ing. The late Chief Justice George Robertson said that "the scene resembled a camp meet- ing in confusion and clamor but lacked its holy impulses." The bill passed without dif- ficulty and was approved by the governor. Whether or not it thus became a law was to be determined later.
The court of appeals having, for the time being, been supposedly legislated out of ex- istence, Governor Desha on January 10, 1825, appointed as chief justice of the New Court William T. Barry, and as associate justices, James Haggin, Jolın Trimble and Benjamin W. Patton. On the death of Patton which occurred soon afterward, Rezin H. Davidge was appointed to succeed him. Barry was distinguished as a criminal lawyer, but is re-
ported to have been under disadvantages as a judge. Haggin was a prominent member of the bar of Lexington, where he had an extensive practice. Violent assaults were made upon his private character to an extent which caused him to profess fear of assassina- tion. Trimble was the brother of Robert Trimble, who died as a justice of the supreme court of the United States. Jolin Trimble had been secretary for Robert Evans, when the latter was governor of Indiana territory, and had studied law in the office of George Nicholas, of Lexington. He practiced law at Paris from 1807 to 1816, when he was ap- pointed circuit judge, and removed to Cynthi- ana. In the heat of the contest between the Old and New Court adherents, his ability was questioned, but that is nothing new in parti- san politics. Of Davidge nothing is known beyond the fact that he was apponted to the New Court to fill a vacancy caused by the death of Patton.
It is the consensus of opinion among un- prejudiced lawyers, that the New Court in no wise measured up to the ability of the mem- bers of the Old Court, whom the legislature had voted out of office. The governor might have gone further and appointed a far abler court, as political acumen would have prompted him to do. The ablest man in the Relief party was John Rowan, who not only was a leader of his party in the legislature but a great power before the people. He was re- moved from the position of leader by the en- thusiasmn of the members of his party in the legislature who elected him to the United States senate. At once the Anti-Relief, or Old Court party, claimed that his entire ac- tion had been prompted by personal ambition, and that instead of being the tribune of the people as he had professed, his ambitious gaze had all along been fixed upon a seat in the senate. This was an injustice to Rowan. Kentuckians are an impressionable people. They had seen Rowan making a brave fight
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in the legislature for what they deemed their' best interests, and it is probable that the elec- tion of no other man in the state would have given the majority greater pleasure than did that of Rowan. Then, too, he was a man of ability, equal to any demands that might be made upon him in the high forum he was about to enter. But his advancement was a severe blow to his adherents, who speedily felt the loss of their spirited and accomplished leader.
When the New Court assembled, Achilles Sneed, clerk of the Old Court, refused to sur- render the records of the office. Francis P. Blair, afterwards to be of wide national prom- inence, was appointed clerk of the New Court and took forcible possession of the records, bloodshed being only averted by the council of cool heads. The grand jury of Franklin county indicted the judges and officers of the New Court for this offense, but nothing ever came of the indictment. The high feeling of the moment found vent through the grand ju- ries of several counties, which indicted the members of the legislature for passing the act of reorganization. If half the energy brought into play on the two sides of this con- troversy had been devoted by the excited peo- ple to the advancement of their own personal interests many of them would have been ena- bled to discharge their indebtedness and have no need of relief.
Everywhere there was discord. Madison C. Johnson, later an eminent lawyer and financier, was for some time denied admission to the bar of Woodford county, because his license to practice law was signed by Judges Owsley and Boyle of the Old Court. Judge Bledsoe, of the Woodford circuit court, finally admitted him to practice, waiving the alleged irregularity of his license. Throughout the state meetings were held, some approving, others disapproving the action of the legisla- ture. The members of the Old Court issued an address to the people; Sneed, the clerk of
the court, and the minority of the legislature followed suit. Pamphlets for the one side or the other were issued in accordance with the custom of that day, and the newspaper col- umns bore more of discussion than of news. Charges and counter-charges were the order of the day. Barry and Haggin had to endure assaults upon their personal integrity. Mills was charged with acting as appellate judge in a cause in which he had appeared as council before his advancement to the bench. Barry, after his appointment but before taking the oath of office, had defended the son of Gover- nor Desha, who was charged with highway robbery and murder. All these charges and scores of others were repeated, enlarged upon and discussed with bitterness from one end of the state to the other and almost a state of anarchy existed. It is doubted if the days of 1861-5, when the War Between the States was raging, were more filled with bitterness than were the days of this Old and New Court con- test.
The Old Court remained open for the per- formance of its official duties and to it some brought their appeals, while others went to the New Court. No one knew what the final outcome would be; no one knew to which court appeals for an adjustment of real or imagined wrongs should be made. Men who had no business before the courts, and who probably never would have, were wrought up to the same high state of feeling as the men whose interests amounting to many thous- ands of dollars were involved. Those in charge of estates involved in litigation were in sore straits, knowing not whether to turn to the New or to the Old Court. Such a condition of affairs could not safely be endured for a long time. Some wise man has said that when affairs become very bad they right themselves. Certainly they were in a very bad state now in Kentucky and that they should be speedily righted was the great demand of the hour.
The end was rapidly approaching. At the
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legislative election held in August, 1825, six- 'passed in the house repealing the reorganiza- ty-five Old Court and thirty-five New Court representatives were chosen. The senate was evenly divided, as only one-half of its mem- bers were chosen at the biennial elections. The majority party had sent its strong men to the general assembly.
The body convened November 7th, in the midst of the greatest excitement Frankfort had ever known to that date. Solomon P. Sharp, attorney general of the state, had been elected to the house from Franklin county after a spirited and exciting contest. He was an able and successful lawyer, personally very popular. and it was hoped by his friends that he would be chosen speaker. On the night of November 6th. Colonel Sharp was called to the door of his residence in Frankfort and stabbed to death by the hand of an assassin.
The house met, oppressed with gloom. The pitiful animosities of political life were for- gotten for the time. George Robertson was chosen speaker without opposition, and the house immediately adopted resolutions re- questing the governor to offer a reward of $3,000 for the arrest of the assassin. Other resolutions were also adopted to the effect that "the legislature and the state of Kentucky were called on to mourn the loss of one of their ablest and most distinguished citizens."
Jeroboam Beauchamp, a young lawyer of Warren county, was arrested and charged with the murder ; was indicted, convicted and sentenced to death. Beauchamp charged that Sharp had maintained improper relations with his wife. After his conviction and but a short time before the date set for his execution, Beauchamp and his unfortunate wife at- tempted suicide. The wife was successful, but Beauchamp's attempt failed and soon afterwards. while still in a half conscious state. he was executed.
After the excitement of these tragic events had partially subsided. a bill was offered and
tion measure. In the senate there was an equal division of the vote, whereupon Lieu- tenant Governor McAfee voted in the nega- tive and the bill was lost. Subsequently, un- der a joint resolution of the two houses a com- mittee of six was appointed "for the purpose of conferring and devising such practical measures as to them shall seem most expe- dient, in order to settle the difficulties in rela- tion to the Appellate Court." This committee and others appointed for a like purpose, played politics rather than patriotism with the result that nothing came of their delibera- tions. The legislature completing its term, ad- journed leaving the legal business of the peo- ple in the same chaotic state in which they found it on assembling.
The New Court sat during the spring and a part of the fall term of 1825, discontinuing the decision of causes in October, though it continued its sittings for some time afterward. After the legislature convened in November, Mr. Blair, clerk of the New Court, closed his office and refused to surrender the records or to permit litigants or their lawyers to have access to them. The house adopted a resolu- tion declaring it to be the sense of that body that the sergeant of the Old Court should re- cover the records and deliver them to the lat- ter body. Blair, upon learning of the adop- tion of this resolution. placed an armed force in his office. The sergeant of the Old Court did not call upon Clerk Blair. The legislature after considering the situation for six weeks, adjourned and went home. But before doing this the majority in the house issued a flam- boyant address to "The People of Kentucky" in which they threshed over the old straw of the Old and the New Court controversy, con- cluding as follows: "On you hangs the fate of the constitution. Having done all that we could. we submit the issue to God and the people." This address is believed to have
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been written by the speaker, George Robert- son.
At the election of a new legislature in Au- gust, 1826, the final blow was struck against the New Court, a decided majority of mem- bers of each house being chosen favorable to the Old Court. During the following legisla- tive session an act was passed declaring in full force and effect all acts pretended to be re- pealed by the reorganization acts. Governor Desha vetoed this bill, but it was passed over the veto by the necessary majority and became a law, the governor's objections to the con- trary notwithstanding, December 20, 1826.
Mr. Blair capitulated ; his army laid down its arms, the records of the office were sur- rendered to the constituted authorities of the Old Court, and the New Court passed out of existence after a stormy and by no means beautiful life. During its brief and tempest- uous existence the New Court rendered sev- enty-two decisions. These are preserved in second Ben Monroe's Reports. These decis- ions are not relied upon by lawyers in their practice. The Old Court was sitting after December, 1825, though the repealing act was not passed for a year afterwards.
It is interesting to note that in August, 1826, when the death-knell of the New Court was sounded by the people at the polls, Judge James Clark, whose decision declaring the re- lief laws unconstitutional, had caused the long and bitter conflict, was elected to congress, thus adding a bitter note to the blow which ended the existence of the New Court.
Of the judges connected with this unexam- pled condition, Judge Boyle resigned as chief justice, November 8, 1826, to become federal judge of the district of Kentucky, which po- sition he filled with great honor until his death January 25. 1835. Judge Robertson, one of the greatest judges the state has ever known, said of him: "As a lawyer he was candid, conscientious and faithful; as a statesman,
honest, disinterested and patriotic ; as a judge, pure, impartial and enlightened ; as a citizen, upright, just and faultless; as a neighbor, kind. affable and condescending; as a man, chaste, modest and benignant ; as a husband, most constant, affectionate and devoted." The extravagant style of expression at that day was exhausted in this eulogium of Boyle.
Judge Mills remained in office until 1828, when he resigned to resume the practice at Paris, where he was sucessful. He died De- cember 6, 1828, from a stroke of apoplexy, thus depriving the state of one of its ablest sons who ever sought the good of the majority.
Judge Owsley retired at the same time with Judge Mills.
Though the New Court had passed out of existence, its influence yet remained. Na- tional politics had been injected into state af- fairs. Judge Little, in his "Life of Ben Har- din," says Duff Green, in a letter dated Louis- ville, September 6, 1826, and addressed to Governor Ninian Edwards of Illinois, says : "The Old and New Court question is already lost in this state. The New Court mnen, with scarcely an exception, are for Jackson, and the strong men of the Old Court party are more than divided in his favor. Why the New Court men took refuge as a body, under the banner of the 'Old Hero,' is one of those political problems for which many reasons can be given. yet none with entire assurance." A quarter of a century later, during the dis- cussion attending the propositions for the con- stitutional convention of 1849, it was observed by an intelligent writer that "the political par- ties in the state took the form and organiza- tion which they have retained with little va- riation ever since, in the fierce and bitter struggle growing out of the attempts of the legislature to interfere with the contracts of individuals and the firm resistance of the courts to this interference. Whatever names parties may have worn since then, whatever
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questions may have agitated or excited them, the lines then drawn have never been obliter- ated and never will be. They are the eternal lines which distinguish the great antagonistic
principles in society, which divide the consti- tutional conservative on the one side from the Jacobin and the Radical on the other."
CHAPTER XLI.
CLAY OR JACKSON-CLAY'S POLITICAL BLUNDER-THE MAKING OF JACKSON-"THE MAN ON HORSEBACK"-PATHETIC DEATH OF WHIG PARTY-WILD BANKING IN KENTUCKY-BASE- LESS PAPER MONEY : BOUNDLESS SPECULATION-CRY FOR RELIEF ANSWERED.
A presidential election was now impending and it was expected that President Adams would succeed himself. If Adams were not his own successor, it was expected that Henry Clay would be chosen in his stead.
Clay had represented his country with great honor at Ghent when the treaty of peace with England had been arranged. He had a bril- liant career in congress, unequalled by that of any other man; as speaker of the house he had acquitted himself with credit. His tal- ents and his patriotic devotion to his country, were everywhere acknowledged. He had held the position of secretary of state which, for years, had pointed to the presidency. Yet across his path to that high honor there stalked the grim figure of Andrew Jackson.
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