USA > Kentucky > A history of the commonwealth of Kentucky > Part 28
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of virtues, below the money which he may, or may not have procured. The hue and cry of aristocracy against the re- wards of industrious enterprise, or its descendants, ought to be suspected and frowned upon by an orderly and an intelli- gent people, who wish to preserve the foundations of the social fabric uninjured; and to maintain that decent and temperate love of property, without which, liberty would have little to struggle for, and less to enjoy. Yet the badge of aristocrat, which so easily fastens to a prosperous man, not too courteous in his manners, or remarkable for his conciliatory demeanor, soon consigns him to perpetual obscurity; it is the ostracism of Kentucky, perhaps of the United States, without any removal from the soil.
Difficulties now began to be felt in the want of a circulating medium, and the inadequacy of the exports of the State, to pay for its imports. Frequent as those complaints used to be in Kentucky, owing to her interior situation so remote from the mar- ket of her consumer, as well as from the supplies of her own consumption ; they now ascended from the circles of private con- versation into the grave communications of the executive magis- trate to the legislature of the State. In the speech of the Gov- ernor, at the opening of the session of 1500, after complaining of the deficiencies in the public revenue, the governor attributes them and the public condition "almost destitute of specie," "to our local situation, but more especially to the nature and system of our trade." The remedies which he suggests for these evils will appear strange in this day of more enlightened political economy. "Nor can I." says the Governor, "discern any probable prospect of a change for the better, until our dependence on other countries is lessened, and until we supply those wants, which are indispensable, through channels, which will admit of an exchange of' commodities, mutually advan- tageous to the parties." In another passage he says, "Policy and interest therefore invite us to turn our commercial views to this channel," meaning that of the Ohio, Mississippi, and their tributary streams. For this purpose, the Governor sug- gests the importance of "giving premiums on importations by
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the way of the Mississippi, as would at least call their atten- tion," that is, the attention of the merchants, "to that essential channel of our foreign intercourse." The object was patriotic, the means of effecting it, any thing but wise or effectual. The main source of domestic embarrassment, was excessive con- sumption of foreign goods beyond the effectual demand; that is, the means to pay for them. Whether this merchandise had come by the way of New Orleans, or of Philadelphia, the domestic means of payment in Kentucky, must have been the same. A mere change in the channel of trade, without an increase of its profits, would have added no greater ability to the consumer of foreign goods to pay for them. A million of dollars invested in the produce of Kentucky, which might be exchanged in the ports of Louisiana, would have given no more additional resources to Kentucky, than if the same pro- duce had been sold in New Orleans, and its proceeds converted into the merchandise of New York or Philadelphia. Could the investment have been more profitably made under the imperfect navigation of the time, at New Orleans, than in Philadelphia, the western merchant would have had a higher inducement, and a more powerful motive to effect it, than any legislative premiums which Kentucky could offer him. Eagle- eyed interest may be much more securely relied upon to keep awake, and to watch over its own welfare, than the most be- nevolent sages, that ever attempted the mischievous and im- practicable task of aiding or superseding its vigilant offices.
Connected with these mistaken visions about our trade, was another error, which long haunted the public mind, and was, indeed, at the bottom of the former dissatisfaction. It was the drain of specie by our eastern trade. This was a topic of ani- mated and frequent denunciation. In the troublesome and dangerous exportation of gold and silver, which the merchant always so gladly avoided whenever he could, the economists of Kentucky, like too many in older communities, saw the most pernicious subtraction of the public wealth. It has, indeed, taken long to convince the cabinets and legislatures of the world, nor is the work yet fully completed, that gold and silver,
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however truly valuable in themselves, are only so, for commer- cial purposes,-to effect the exchanges of society by measuring their value, and by intrinsic value to avoid the clumsy processes of circuitous barter. They come and go with all the valuables in the markets of the commercial world, which they so conve- niently represent; and they are to be procured whenever and wherever a fair equivalent in market can be offered for them. No community need concern itself more with the supply of its gold and silver, than with its iron ware, (to use the illustration of the great master of political economy,*) or any other of its demands.
To be able to buy, or, in other words, to give an equivalent in market, is alone sufficient to obtain a supply under ordinary circumstances of trade. Let the laws compel the payment of all debts by honest and fair equivalents in gold and silver; and private interest will relieve the legislator from all his superflu- ous apprehensions about the supply of money, which he can only gratify by disregarding the natural laws of trade and of social intercourse.
No other event occurs, particularly interesting, until the year 1800; when the election for the fourth presidency came on. The principal antagonists were, the then incumbent, the elder Adams, and Thomas Jefferson, the respective favor- ites of the two great opposing parties of federalists and republi- cans, in the temporary and party sense of those exalted names. These denominations were synonymous with the advocates, and opponents, of the administration of President Adams. In Ken- tucky the latter were the great mass of the people with singular unanimity ; they supported Mr. Jefferson with enthusiasm. The times were those of high wrought excitement; and the respec- tive merits of France and of England were. on every occasion, interfering with the affections and the duties of Americans to their own country. Long since, these foreign partialities have, most happily for our countrymen. become absorbed in their own national attachments: never, it is most fervently hoped, will they be revived, to disgrace and to injure this republic. The
. Smith's Wealth of Nations.
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plurality of the electoral votes was in favor of Messrs. Jefferson and Burr; and after a convulsive struggle of parties, which threa- tened to suspend the constitution, or involve the country in civil war, a majority was given to Mr. Jefferson for President, to the most lively delight of his friends. American feelings were, on this occasion, transported to an extravagance of sensibility, which is generally deemed more characteristic of the south of Europe, than of the stock of grave and staid old England. No part of the United States partook of these feelings of animated joy more deeply than Kentucky. Her character has ever been impetuous and ardent; and when her favorite statesman was at length elevated to the chief magistracy of the republic, her sensibilities gushed over with a fervor more allied to religious devotion, than to political joy.
Some peculiar circumstances contributed to this excessive triumph. Mr. Jefferson was a Virginian; and the Kentuckians had generally been Virginians. The new President had been the Governor of Virginia when it included Kentucky; he had ever been viewed as the decided friend of the western country; and he possessed the more mystical fame of a philosopher.
The first measures of President Jefferson's administration, which bore immediately on Kentucky, were, the repeal of the Circuit court system of the United States, and of the internal taxes.
No measure of the presidency was canvassed with greater ability and zeal, than this judiciary repeal; none trenched, in the opinion of able constitutional expositors, so palpably on the tenure of judicial office. Instead of this being during good behavior, as provided by the constitution, it became dependent upon the legislative existence of the office, whatever the official behavior might be. This construction sanctions the inconsis- tency, that a bare majority may remove a judge from office by repealing his office, although a majority of two thirds is required to remove him from that office for misbehavior. The country at large, and particularly Kentucky, have settled on the con- stitutional construction, which places the courts, with their judges, which are inferior to the Supreme court, at the discre-
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tion of the legislature; but reserves the Supreme court, with its judges, as independent of ordinary authority.
The law establishing a United States' Circuit court for Ken- tucky was repealed; and Judge M'Clung was also repealed out of office, in company with his judicial brethren.
Although distinct Circuit courts may have been premature at the time of their creation; yet, as a system, it has since been urgently called for, particularly in the western country. It was, however, a most unhappy and illiberal course of policy, to pass so radical a change in the fundamental organization of the government; at the close of an administration, which had incurred the national displeasure. This was aggravated by filling all the vacancies with members of the defeated party. If, then, the judiciary repeal were a violation of the constitution of the United States, the federal party may well be said to have provoked it, by their most unwarrantable and ill judged conduct.
It ought to be mentioned in this connection, that the opinion of one of the greatest jurists* in the United States, though not expressly announced, carries every implication, and supports every argument, against the legislatire power over the offices of the judiciary when once established.
The repeal of the internal taxes relieved our interior agri- cultural country, ill able to command specie, from much irri- tating interference of excise officers; whose salaries in an extensive country like this Union, form a great drawback from the product of such taxes to the national treasury, and con- tributed much, to augment the patronage and influence of the Federal Executive. In thus relinquishing the favorite spoils of most popular favorites, Mr. Jefferson showed a magnanimity, and a disinterestedness, worthy of the highest commendation. Executive power requires to be sleeplessly watched.
The introduction of banking into this agricultural State, next calls for attention; a system of legislation, which, as it has been pursued, has been productive of the most fearful mis- chiefs; and no where more deplorably, than in this State.
+ Judge Story, in his moet dignified and able Commentary on the Constitution of the United States, actions 231, 802.
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Yet it was at first smuggled into Kentucky, and by a fraud upon her legislative understanding, it was foisted into the Commonwealth. An application was made to the legislature to incorporate an insurance company, for the purpose of in- suring the produce of the State, on its passage to market, through the long and perilous channels of the western rivers, the petition was readily granted. But in the charter of incor- poration, the company was authorized "to take and give bills, bonds, and obligations, in the course of their business; also to receive and pass them by assignment; and such of the notes as are payable to bearer, shall be negotiable and assign- able by delivery." Under this pregnant clause, the bills issued by the company were made payable to bearer; and they be- came tantamount to bank bills. Thus indirectly was a bank forced upon our legislators, who, at that day, partook of the dread and antipathy to such monied instruments, which then particularly characterized the statesmen of Virginia. Too soon indeed for the solid and durable prosperity of both Kentucky and Virginia, they forgot these prepossessions.
This surreptitious bank was chartered until 1818, during which time it enjoyed the monstrous monopoly of insurance under the authority of Kentucky, without any equivalent to the State for the surrender of its legislative discretion. The fate of this institution, which may as well be recorded at once, was worthy of its birth; it began in fraud and ended in bank- ruptcy.
At this session took place the third radical change in the ordinary courts of the State. The District courts and the General court were abolished; and Circuit courts for cach county were established in their place. The judges of the former, like the Quarter Session justices, and the judges of the court of Over and Terminer, of a former period, acquiesced in following the fate of their courts. To each of the Circuit judges were added two assistants, not learned in the law. The convenience of bringing the administration of justice home to every man's county, reconciled the people to this alteration; but the retention of the assistants unlearned in the law, was
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found, in so many instances, to impede the progress of business by producing conflictis with the presiding judge, in overruling or re-arguing his decisions, that the judicial assistants were, at length, most usefully abolished.
On no subject of legislation have the people of Kentucky suffered more egregiously, than in the organization of their courts. The inadequacy of judicial salary has kept the judges not only below the professional compensation of the bar; but in all the wealthy counties, below the compensation of their own clerks. For the purposes of emolument, the clerkships of the courts are greatly more valuable than the salaries of the judges; and are more anxiously sought after, as objects of am- bition. When shall the community feel as it ought to feel on this vital subject of government, that the administration of the law must depend upon the character of its administrators? The sublimest conceptions of the wisest and most benevolent legislators will be misapplied, in fully and injustice; when igno- rance and incapacity are called to put them in force. If the people of Kentucky desire to have justice administered in all the light of learning and wisdom, amid their too abundant mat- ter of litigation, they must pay the price for these high and rare endowments, which society has placed upon them in other situ- ations; the same price which is put upon these qualities, when exercised for the public service at the bar, or in any other arduous walk of life, must be given by the government. When, as in England, and in many of the elder States, the Bench shall have been made an ol ject of honorable ambition, and a full equivalent for high and lucrative practice ; then the judges will be where they ought to stand, at the head of the profession; and the masters, and not as they too often have been, the puppets of influential lawyers. Then the liberties and the property of society will, with legislative respect for the independence of the courts, be placed on a footing worthy of a free and en- lightened Commonwealth.
In confirmation of these remarks, the author will subjoin the following expressive picture of judicial administration under 2 C
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the first organization of the circuit courts, now however, most essentially amended.
"The practice which ensued under this system, had the effect to retard business, and in other respects proved pernicious. If the knowing judge happened to desire to rule his right and left hand man, and they were willing to be ruled, they sanc- tioned his opinions, and matters went on smoothly, tardy as might be their pace-it was rather, however, the cause of despatch. But when the assistants conceited they knew as much, or more, than their president, they were commonly re- fractory, and kept him in check: he being in general a resi- dent in town, or an itinerant on his circuit, or a lodger in town, where the court was held, could attend early, or late; while his brother judges, residing in most cases in the coun- try, remained at home for breakfast; then came to town, put up their horses at the tavern, took a round of smoking or chat- ting; then to court; and if any thing had been done, were ready to rehear, and confirm, or reverse it. For it is to be remem- bered, that the presiding, or "circuit judge," could hold court in the absence of his assistants; subject, nevertheless, to have every thing he did undone by them: and which soon taught him to do nothing when they were away, unless he had pre- viously obtained the control over one of them at least.
"And they, sure of their two dollars a day, if their names were entered on the minute book, took special care to have each, his own, entered at some time in the day. In the long days they did more-but again and again, has the court ad- journed to dinner, before a single jury cause was opened; and probably, a common case, occupied the day. In the populous counties, such was the accumulation of business, and the tardi- ness of proceedings, that causes were years on the docket, which, in a correct course of adjudication should have been tried at the term next after the process was returned executed. Thus suitors were compelled to attend from term to term, and from day to day, during cach term for years, before they could obtain a trial at law: while the complainant in chancery was still more unfortunate, although in general, the suits being
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about land titles, were the most important: and demanding the first attention, were put off to the last. A single statement of a common fact, will illustrate this narrative. In these large counties the courts, for years did not clear their dockets; while it often happened, that the causes set for the first day, were not finished for two or three days; and one set for the third, might be taken up the sixth day, &c. &c .: the parties and wit- nesses bound the while to attendance.
"Thus have the people of Kentucky been compelled to sue for, seek after justice; and wait upon courts, often changed, inadequately filled, and frequently unnecessarily dilatory, at an expense and loss of time, which few other people could have afforded; and fewer still, it is probable, would have borne without ascertaining the canse and correcting it, in this legislation; the ostensible source of the evil."
CHAPTER XVIII.
Suspension of Denosite at New Orleans-Cession of Louisiana to France-Louisiana Negotiation-Cession to the United States- Newspaper Reports of Adjudications in the Court of Appeals-Second Election of President Jefferson-Colonel Burr-Spanish Difficulties on the Sabine -- Return of Burr to the West - Trials -- Apprehension --- Sebas tian's Spanish Pension-Judge Iones President Madison-Governor Scott-Foreign Depredations -- Embargo --- Replevy --- Battle of Tippecanoe --- Death of Daviess.
In the course of 1802, the tranquillity of the whole western country was greatly disturbed by the suspension of the right of deposite for American trade at New Orleans, which had been stipulated by Spain. in the treaty of 1795, for three years. At the same time, she bound herself to furnish some "equiva- lent establishment on another part of the banks of the Missis- sippi," should that at New Orleans, on the expiration of the three years, be withheld. This act of the Spanish Intendant, Morales. at New Orleans, and violation of treaty on so sensitive a subject, as the navigation of the Mississippi, produced the highest indignation throughout the United States; but in the western country, the public mind, in the language of Mr. Jefferson's letter to Mr. Monroe, was thrown into a fever
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"The excitement was redoubled" when the public heard of the cession of Louisiana to France. These measures were inevi- tably coupled in the public apprehension. On the meeting of Congress in 1802, a vigorous effort was made in the Senate of the United States to authorize the President to take immedi- ate possession of the island of New Orleans and the adjacent territories. This was however lost, and the Executive instant- ly took measures to procure a cession of New Orleans, and of West and East Florida. To promote this negotiation Congress, at the recommendation of the Executive, appropriated two millions of dollars. Such were the expectations in the United States, when Mr. Monroe was appointed Minister to France, to enter on this delicate and important negotiation.
President Jefferson, with a happy regard for the public feel- ings, apprized Governor Garrard of all his measures in an affair* so profoundly interesting to Kentucky. Of this sentiment the legislature most promptly informed the authorities of the United States, on the earliest news of the occlusion, as Mr. Jefferson termed it, of New Orleans.
When Mr. Monroe arrived at Paris, he found that the first Consul of France, clearly foreseeing the loss of Louisiana, in the impending hostilities with Great Britain, had determined to sell this magnificent province to the United States. He is said to have expressed himself in these words: "I renounce it with the greatest regret. To attempt obstinately to retain it would be folly." Thus decisive were the resolutions of this pre-eminent military chief. The French negotiator was directed to ask fifty millions of francs, as his ultimatum, or something less than ten millions of dollars; he asked eighty, and Mr. Livingston, before the arrival of Mr. Monroe, would not go beyond thirty millions, or nearly six millions of dollars. But when sober deliberation enjoyed a few moments' respite, from the astonishment with which the American mission was overwhelmed, at the extraordinary offer of an empire, when they had doubted whether they could obtain one of its towns, the negotiation no longer faltered about terms. Neither obscure
* Marbois' History of Louisiana, p. 213.
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boundaries,* which no historical documents could explain, nor fifty additional millions of francs, formed any obstacle. On the 30th of April, 1803, the treaties were all signed, which, reali- zing the boundaries of the ancient charters, granted by the British monarchs to their American colonies, extended the United States "from sea to sea." By a brilliant negotiation, and a coinci- dence of fortunate circumstances in the affairs of nations, that only occur in a series of centuries, Louisiana was purchased for fifteen millions of dollars, or 80,000,000 of francs; and the United States enlarged to 2,000,000 of square miles.
At this time, it is curious to look back at the alarm with which the re-occupation of Louisiana by its ancient owners, excited throughout the United States. Yet it would seem, that a power so little naval, need not have produced such apprehen- sion. True, the French would have made a more formidable neighbor than the indolent and unenterprising Spaniards; but they would by the same reasoning, have made more valuable customers, and a more profitable trade might have been carried on with Louisiana. These speculations are, most happily for the fortunes of America, superseded by the acquisition of the country, which the sagacity of Bonaparte, and the policy of Jefferson threw into each others' hands. But had not this un- exampled concurrence of views appeared, in parties which might with every calculation of ordinary probability, have been expected to conflict with one another; President Jefferson was prepared to go to war for the great and solid interests of his country. Pacific and attached to France, as he was supposed to be, he was ready to unite our arms with those of Great Britain for this paramount object. Had the disposition of the French government appeared hostile, in the opinion of our ministers, they were instructed to hold t "such communications with the British government as will sound its dispositions, and invite its concurrence in the war."
Int confirmation of the same views, the President wrote to Mr. Livingston, "the day that France takes possession of New
. M. Marbois relatre, that Bonaparte remarked on this point. "if an obscurity did not already exist, it would, perhaps, be good policy to put one there."-p. 2co.
t Idem. p. 416. ; Idem. p. : A).
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Orleans, fixes the sentence which is to restrain her for ever within her low water mark. It seals the union of two nations who, in conjunction, can maintain the possession of the ocean. From that moment we must marry ourselves to the British fleet and nation. We must turn all our attention to a maritime force, for which our resources place us on very high ground; and having formed and connected together a power, which may render re-inforcements of her settlements here impossible to France, make the first cannon, which shall be fired in Europe, the signal for tearing up any settlement she may have made, and for holding the two continents of America in sequestration for the common purposes of the united British and Ameri- can nations." These far-sighted and sagacious anticipations, which Mr. Jefferson, with his characteristic foresight, was so competent to indulge, were happily rendered unnecessary, as has been mentioned by this most propitious treaty. So "noble a bargain," in the language of Talleyrand, almost defies belief if it had not with all its splendor of event, have become sober history. Congress, with unimportant opposition, ratified their treaties, and thus sealed higher destinies for their country, than had ever flashed across the most sanguine fancy of American patriots. Nor does the experience of the confederacy so far justify the apprehension, that the capacity of our most admirable federation, is not adapted to the great expansion provided by the acquisition of Louisiana. Had Mr. Jefferson effected nothing more for his country, in his exalted career of public duty, it is sufficient to place him and all the companions of such high counsels, in the proudest niche in the American Pantheon, dedicated to civil honors and patriot statesmen.
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