USA > Kentucky > History of Kentucky, Volume II > Part 10
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Defeated in their efforts to call a convention and balked in their attempts to address judges out of office, the relief party determined upon capturing the state government so far as it could be accomplished through the ballot. Besides a legislature, a governor was also to be elected during the following summer. The relief question had not played a conspicu-
14 Oct. 5, 1820.
15 Kentucky Gazette, Nov. 21, 1822.
16 Kentucky Gazette, Nov. 20, 1823; Niles' Register, Vol. 25, p. 230.
17 Nov. 20, 1823.
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ous part in any gubernatorial election heretofore. The last previous election for governor (1820) had true to Kentucky customs in politics and political campaigns, ranged around the most remote escapades and happenings in which candidates figured, embracing prominently military blunders and successes. Principles of immediate concern were almost forgotten in the efforts put forth to discredit or elevate some candidate. In the election of 1820 an unusually large number of candidates were spoken of or actually entered the field. Besides many local celebrities, Henry Clay for a time was mentioned as a possible contestant.18 By the time the election was near at hand, the numbers had simmered down to four, all of whom were voted on. These were Adair, Logan, Butler, and Desha. The campaign early developed into a process of re-enacting the past lives of the candidates, with the military side assigned the leading role. Men without a military career stood little chance, and men with such a career were hard put to it at times to defend themselves from the verbal onslaughts of their opponents. Battles were fought over again, and campaigns picked to pieces in these attempts to discredit candidates -not so much how they stood on vital questions of the day, but why did they carry out certain maneuvers in a battle fought six, twenty-five, or forty years ago.19 Adair was less susceptible to such attacks for he had won the applause of his fellow-citizens in his bold defense against Jackson's aspersions against the Kentucky troops at the battle of New Orleans; but his political enemies had not forgotten the Burr episode and the mysterious part that Adair played in it. His minutest moments were sought to be linked up with Burr, even to long-drawn-out accounts of his holding frequent midnight councils with Burr while he was in Frankfort. One Kentuckian, who had not yet ceased to despise Burr, gave this opinion on what constituted the fitness of a candidate: "The veneration you have for the memories of your illustrious fathers requires that if you should believe Adair was the associate of Burr in his wicked schemes, you should select some other man to perform the executive duties of your state." 20 To establish his connection with the Burr affair in its true light and to show his own innocence of disloyalty to the nation, all of which he hoped would set at rest the chimerical stories that might be manufactured to defeat him for governor, Adair brought suit against James Wilkinson for false imprisonment (Adair having been arrested by him in New Orleans when the Burr conspiracy was being broken up), and received $2,500 damages in the Natchez court.21 Adair was able to win the election only by slightly more than 500 votes over his nearest competitor, Logan.22
But between 1820 and 1824, politics was undergoing a complete change in the state. After all, why fiddle when Rome was burning? Was it not more profitable to judge the fitness of a candidate by his views on the vital questions of the day than to resurrect hazy stories of certain mistakes he may have made a quarter of a century past? The accumu- lations of a lifetime should not be put in jeopardy in order to discuss the strategy of a battle. The election of 1824 gave proof of the change. The events of the past few years, as already noted, had set the people to thinking of their immediate concerns and had given rise to parties based on these concerns. John Quincy Adams had said in 1822, that the people in Kentucky were "in a flame of internal combustion, with stop
18 Niles' Register, Vol. 17, P. 351.
19 See Kentucky Gazette, June, July, etc., 1820.
20 Kentucky Gazette, June 20, 1820. Article by "Ligarius."
21 Niles' Register, Vol. 15, p. 416. Wilkinson had the brazen effrontery to ask of Congress recompense for these damages. This case was decided in the latter part of 1818.
22 The vote stood, Adair, 20,493; Logan, 19,947; Desha, 12,419; and Butler, 9,567. Kentucky Gazette, Aug. 31, 1820; Niles' Register, Vol. 19, pp. 16, 48.
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laws, paper money, and hunting down Judges, in which Clay is on the unpopular side, which at this time is the side of justice." 23 There were now fewer candidates for there could be but two great principles involved -instead of the personality and life history of as many as chose to enter the lists. The relief party put forward Desha because he stood for the continuation of the relief system and for the destruction of all opposition, including the judges if they chose to stand in the way. Tompkins was the candidate of the Anti-Relief Party. The campaign was hard fought, with scarcely a Kentuckian so mean as not to take a lively interest. It was fought out not only with words, but, indeed, with material weapons close at hand. So bitter was the feeling between the two parties in Lex- ington, that a small riot broke out, which resulted not only in many bruises, but in the destruction of some of the city's paved streets; for the cobble stone pavements afforded a handy supply of missiles, which were supplied in great quantities by a "labor battalion" armed with picks and crow bars. The fight was fast developing toward a battle of fire- arms, when the two opposing candidates for the Legislature arm-in-arm walked down the street between their battling partisans, and thereby broke up the fight.24 Desha carried on a vigorous campaign. It had long been his ambition to become governor, and he had in the meanwhile been laying his plans and building up his support. He found the dis- temper of the times much in his favor, and so made all the possible use of it. Much misinformation on the actual contest with the judges was spread over the state, and those people who depended only on their political leaders to inform them were grossly misled in places. Desha was willing to ride both horses, if by so doing he could gain the election. In some parts of the state the people had been informed that the judges had actually denied the Legislature the right to make laws and had as- sumed, themselves, the sovereign power. Here the watchword became "Liberty or slavery," and Desha was hailed as the only salvation for the state. In other parts of the state where the sentiment was against relief laws and favorable to the position the judges had taken, Desha assumed a very conciliatory attitude, declaring that he was "not in favor of re- moving a judge from office for an honest opinion." 25 In the election which took place in August, 1824, Desha was elected by a majority of more than 10,000 votes.26 Due to Desha's campaign methods, however, this vote could not be considered as meaning an overwhelming victory for the relief party principles.27
But the relief party held that the election of Desha was a mandate to them to proceed against the offending judges. Soon after the Legisla- ture met a committee of four from the Senate and eight from the House was appointed to investigate the judges "and report thereupon by address for their removal." 28 On December 20, a set of resolutions and an address against the judges was voted on by the House, and passed sixty- one to thirty-nine, and by the Senate twenty-three to twelve. Again did they fail, for the two-thirds majority was lacking.29 Again were they cheated out of a victory not because a majority was not in favor of the proceeding, but because a two-thirds majority could not be had; their cup of exasperation was full to running over. All sorts of methods had been attempted in their campaign in the interests of the people against
23 Memoirs of John Quincy Adams, VI, 57.
24 Ranck, History of Lexington, 301.
25 Robertson, Scrap Book, 78.
26 Kentucky Gazette, Aug. 26, 1820.
27 For instance a banquet was given Desha soon after the election at which hearty felicitations were offered by leaders of both parties. Henry Clay was among the guests. Kentucky Gazette, Aug. 26, 1820.
28 Acts of Kentucky, 1824, p. 214.
29 Doolan, "Old Court-New Controversy" in Green Bag, XI, 181.
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the judicial tyrants. Constitutional convention had failed, so had removal by address. By some it had been suggested that if the judges could not be removed in their persons, then their salaries might be cut off so that the people would not at least be charged with paying for being tyrannized over. It was actually strongly argued that the salaries of the judges be reduced to 25 cents a year.30 As the constitution was silent on salary reductions, this move would presumably have been valid. However, this was only a half way measure at best; it would not remove the judges from their power. But the Senate had much earlier decided on a more radical course of action. On December 9, it had passed a bill to abolish outright the Court of Appeals, and thereby be rid forever of the evil judges.31 The House, now that all methods short of abolition of the court had failed, voted on December 24 "an act to reorganize the Court of Appeals." As this was a simple act of the Legislature, it required only a majority vote, which was had in the final result of fifty-four to forty-three. The debate had raged fiercely throughout the whole day of the twenty-third and continued on into the night, for it was feared if ac- tion were postponed that something might arise on the morrow when the proceedings would become known that might balk the final passage of the bill. The debate and parliamentary maneuvers went on, with Gover- nor Desha on the floor rallying the relief forces at every point. Finally at midnight or slightly beyond the vote was taken "amid scenes of the wildest excitement, in which personal encounters were narrowly averted, while the governor and lieutenant governor were mingling in the tumult on the floor of the House." After the bill had been passed the governor hurriedly signed it. This midnight session was described by one person as resembling "a camp night-meeting, in confusion and clamor; but it lacked its holy impulse. Heaven approves the one; Satan himself, it is thought, presided over the orgies of the other." 32 One of the staunch anti-relief men declared in the course of the debate: "There will be no peace until this question is settled fairly. You will only multiply difficulties, and increase the inflammation of the public mind, by passing this bill. It settles no principle. It establishes nothing, except that the judges cannot be constitutionally removed, to give place to some hungry expectants, who are unable to live without some nourishment from the treasury paps- the springs of whose patriotism is money-the object of whose outcry against the judges is to get their places." 33
By the so-called reorganization act the old Court of Appeals, consist- ing of the three judges, Boyle, Owsley and Mills, was declared abolished and its judges with it; and there was set up in its place a "new supreme court, styled the court of appeals," with four judges to administer it. Their salaries were to be $2,000 annually, in Commonwealth paper, mak- ing the court cost the state $8,000 as compared with $4,500 for the old Court of Appeals.34 The new Court of Appeals was speedily filled with relief party men, the first appointees being William T. Barry, chief justice, and James Haggin, John Trimble, and B. W. Patton (afterwards succeeded by R. H. Davidge), associates. A war of words now ensued between the old court judges and the Legislature. Again the Legislature in a lengthy document argued against the judicial doctrines set forth in the cases of Blair v. Williams and Lapsley v. Brasher, declaring that they "do most deliberately and solemnly, again, in the name of the good people of the Commonwealth, protest against the obnoxious principles of those
80 S. M. Wilson, "The Old Court and New Court Controversy in Kentucky" in Proceedings of Kentucky State Bar Association, 1915, P. 51.
31 Robertson, Scrap Book, 75.
32 Doolan, "Old Court-New Court Controversy" in Green Bag, XI, 182; Robert- son, Scrap Book, 127.
33 Robertson, Scrap Book, 76-90.
84 Collins, History of Kentucky, I, 31 ; Niles' Register, Vol. 27, P. 354.
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decisions, as encroachments upon the fundamental principles of free- dom and the inherent rights of the people." 35 The judges were little disposed to bow to the Legislature; they boldly attacked the Legislature with telling argument showing in the first place why they had the right to declare an Act of the Legislature unconstitutional, and in the next place why the Legislature had not the slightest power to abolish the old Court of Appeals. On January II, the Legislature replied in a long preamble and resolution "vindicating the constitutionality of Replevin Laws, and the right of the Legislature to remove Judges for error of opinion. * * * " It stated that the Legislature by a two-thirds ma- jority had the right to remove judges "for any miere error of judicial opinion, which does not amount to misdemeanor in office, notwithstanding that error shall have been committed in the course of judicial decision, if it shall inflict upon the community such injury as in their belief shall
* * *" 36 amount to a reasonable cause for his removal from office.
With the triumph of the relief party, it seemed for a time that the anti-relief forces were hopelessly scattered and disorganized. But under the undaunted leadership of George Robertson, a member of the Legis- lature at this time, the shattered remnants were soon being knit back to- gether. Immediately on the passage of the reorganization act, he wrote out a masterful protest of the minority, which on being presented to the House, was unceremoniously ordered to be entered on the journals with- out being read. A copy which was read in the Senate was refused a place on the journals of that body. Soon afterwards a relief senator ap- peared in the House and told Rowan that such a document circulated through the House journals "will blow us sky-high * * if you don't kick it out of your House." A reconsideration was immediately moved and the document was excluded.37
This action only served to heighten the importance of the protest ; it was eagerly devoured by the people and led to the formation of the opposition against the New Court and its supporters. Party names now registered a change. The relief party came to be popularly termed the new court party or with some referred to as the judge breakers, or coun- try party. The anti-relief party took on the name of old court party. These parties continued practically the same clevage in the population of the state as prevailed in relief days. The new court party were attacked often and vehemently as being composed largely of certain rich debtors and broken-down politicians whose main purpose was to obtain office and feed at the public treasury. They led the uneducated rank and file of the party, making dupes of them for their own aggrandizement. They promised them impossible things, raising hopes only to later disappoint them. A letter addressed "To the Governor Elect of Kentucky" said : "To the honest debtor they promised indulgence, and better times; to the fraudulent and improvident, they tendered the means of avoiding pay- ment, to the extravagant they offered facilities of enjoyment; to the lazy they secured rest ; to the cunning they surrendered the ignorant as victims ; they encouraged treachery by impunity, and fraud by legalizing its spoliation on innocence and industry ; and thus they rallied around their standard the unproductive members of society, and gave up justice to passion." 38
The old court party, consisting of the more conservative people of the state, included a majority of the lawyers, business men, and large land owners. They were roundly assailed as soulless Shylocks who
35 Acts of Kentucky, 1824, pp. 221-239. These resolutions were passed on January 6, 1825.
36 Acts of Kentucky, 1824, pp. 242-273.
37 Robertson, Scrap Book, 91; Collins, History of Kentucky, I, 496.
38 Robertson, Scrap Book, 109.
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thought more of their own property than for the welfare of their com- monwealth. A new court man said, "The Banks (with the exception of that in the hands of the people) devote their stockholders, their officers, and such of their debtors as they can intimidate to the support of a power, which has conferred such peculiar privileges on incorporated wealth, and all the patrician influence from whatever source it springs, whether from new made wealth and upstart arrogance, old family pride, or the young hopes of new ambitious aspirants, all is exerted in favor of a political combination, which in conspiring to destroy the force of the public will, gives to the rich, the great, the landed and monied gentry, their parasites, sycophants from the plebeian insolence, that power in the vulgar as they call it, which rebukes their pride and restrains their domineering spirit." 39
This raid on the highest court of the state was not far afield of the habits of mind and thought that had been engendered in the average Kentuckian. He had seen the constitution violated before with im- punity. The courts of the state had been changed and abolished hereto- fore, and judges had been thrown out of office because their jobs were destroyed, and they were not asked to fill new ones. True it was that the Court of Appeals had never been outright abolished before, but that was because the occasion had never arisen-and moreover the Court of Appeals even now had not been abolished but only reorganized. Not only had the Kentucky fathers abolished courts heretofore, but also had not the very maker of the nation itself done likewise? Thomas Jefferson from whom all good Kentuckians got their inspiration, and who was yet a sage among the living had brought about the repeal of the Judiciary Act passed by the federalists in the last days of their power by which they had set up a system of courts and filled them with federalists. Here the courts had been destroyed, so were the judges. Jefferson in the serenity of his old age at Monticello was appealed to by both factions in an effort to gain his support. Achilles Sneed wrote him telling how the Judge Breakers had twisted some of his writings and made use of them to their advantage. He wished the venerable statesman to write a word to the Kentucky people "to silence the discord and confusion which * prevail among us. * * Yes, Sir, it may not only do this, but may put to rest a principle, unless nipped in its bud, the whole Union may feel its baleful influence." 40 In answer to a similar request from another Kentuckian, Jefferson said, "You wish me to give an opinion on the question which at present agonizes Kentucky, no, my dear Sir, at the age of 82 I have no inclination to volunteer myself into a question which convulses a nation. Quiet is my wish, with the peace and good will of the world. With its contentions I have nothing to do." 41 Although Jefferson refused to be drawn into the bitterness of Kentucky politics, his silence was construed by many as indicating his sympathy with the new court party. The so-called Jeffersonian precedent was being used constantly by the arguing Judge Breakers. One of them in a bitter tirade against the old court judges declared that "it appears that we are required by the proclamation issued by the Judge in Bank to reverse, not only the decision of our late General Assembly, but to condemn the precedent established by the illustrious Congress, which under the auspices of Mr. Jefferson, retrieved the Government from the dangerous doctrines of the Adams administration." 42 Governor Desha summed up the arguments of the new court party thus: "To end the controversy and rid the country
89 Lafayette to the People, 12.
40 Thomas Jefferson Correspondence, W. C. Ford, editor (Boston, 1916), 293. Letter dated April 20, 1825.
41 Ibid., 295. Letter to George Thompson, June 22, 1825.
42 Lafayette to the People, 41.
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of these erroneous and dangerous principles, the majority now deemed it necessary to resort to their constitutional power of abolishing the court and establishing another, composed of other men, and restricted in its power over the constitutionality of legislative acts. That they had this power they could not doubt; because the constitution had not brought any such court into existence, but the first Legislature of Ken- tucky had established it; because the power of changing and even of re- organizing it, had been once before exercised by the Legislature; because the Supreme Court of the United States, as avowed by the judges them- selves, was created by Congress, because the power of reorganizing courts, and thus expelling their incumbents from office, had, repeatedly, been exercised by our own Legislature and by Congress; and because the ablest statesmen, in the latter body, had declared that the Supreme Court was as much the creature of the legislative power, as the inferior courts. Nor was this construction of our constitution thought to be dangerous to liberty, because it accords with the acknowledged principles of most, if not all of the constitutions formed during the Revolution, and most of them which have been formed since." 43 The logic was perfectly plain to the new court supporter that in the reorganization of the Court of Appeals the old judges were left without jobs. What could be more simple? The court was not made for the private benefit of three judges. "As the private benefit of a hired miller is not your object when you build a mill, and you do not want the miller when the mill is destroyed, so it is not for the private benefit of the hired judges, that you establish the courts, and as soon as the courts are undone, the judges which had been hired for them, are out of employment. You build another mill ; but that does not oblige you to employ in it the miller of the former one ; it may be, that the management of the new establishment is over his capacity." 44
The new court leaders reiterated the arguments that the courts had the right to declare an act of the Legislature unconstitutional and that no right existed anywhere to destroy them for such a decision. They utterly denied that the Legislature had the right to interfere in the least with the establishment of the Court of Appeals, the question now before the people, for it was set up by the constitution and not by law despite the governor's quibbling arguments to the contrary. It was also pointed out that the courts that had been destroyed by Jefferson were set up by an Act of Congress and not by the Federal Constitution, and therefore had not the slightest force as a precedent for Kentucky to destroy her Court of Appeals.
The fight had in fact developed into a struggle between the legislative power and the judiciary. A person styling himself "A Cosmopolite Republican, or a Friend of Mankind" saw the question in its broadest aspects as one for the nation itself to sooner or later settle: "Though occasionally brought up by the relief system, it is now a national one, coming to the following dilemma : will the republic of the United States be overset or annihilated by the judiciary or the judges, elevating them- selves over the law; or will the compound will of the people, ascertained by their majorities, continue to be the ruling power agreeable to the constitutions founded on the rights of man, and the judges restrained to judging suits, according to law, as it was intended in the beginning, and as it must be, if the republic is to continue standing ? because wherever there is any controlling power over the laws, but the people assembled by delegates in legislative assemblies, assembled in conventions, there is not any more [a] republic." 45
43 Message to the legislature, November 7, 1825, in Niles' Register, Vol. 29, p. 221.
44 Liberty Saved, 26.
45 Niles' Register, Vol. 28, p. 308.
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The question of the supremacy of the constitution as interpreted by judges over the power of the Legislature in the enactment of laws had engaged the attention of Kentuckians since the days when the region was a district of Virginia. The Danville Political Club had in 1787 de- bated the query: "If an Act of Assembly should be contrary to the Constitution, which ought to govern a judge in his decision?" and had decided in favor of the constitution.46 Throughout the subsequent course of constitutional and legal development, the Legislature as a power most directly controlled by the people grew in the favorable estimation of the people at the expense of the judiciary. Indeed, as heretofore pointed out, the judges had early developed into the disfavor and suspicions of the people. The latter came to look upon this branch of the Government as their sure shield of protection against the tyranny of all others. "The legislative branch of our government," and the Kentucky Gazette, "is the foundation on which the people build their hopes : should this depart- ment fail in doing all we had a right to expect, still there is the consola- tion that it stands in the way of other departments, which might com- mit the greatest errors. If we support such a body sixty days in 365, to protect us from evil, it is not a bad bargain ;" and alluding to the par- ticular session of 1821, "but it would be very agreeable to hear that some few salutary measures were adopted by this body." 47 But in the days of the passage of replevin measures and bank laws, a disposition on the part of the more conservative citizens grew up to criticize this popular branch of the Government-especially as it was responsible for the unwise legis- lation that had helped to run the state further into hard times. But legislature champions were never lacking. The people's law-makers were as capable and honest as any other governmental department. The Ken- tucky Gazette declared, "Although it is not to be expected at this wicked period of a crazy old world that many honest governors or legislators re- main, yet we do believe those chosen by the people at the present moment are as honest and as wise as the other branch of the government or equal to some of the precious few who can never perceive merit any where but in themselves." 48
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