USA > Kentucky > History of Kentucky, Volume II > Part 11
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If laws were unconstitutional or unwise, it was no business of the judges to say so; let them confine themselves to their own duty of ad- judicating law suits. The people in their chosen representatives were to judge of these other things. If a law was not desired by the people, they would elect a Legislature, which at the next session would repeal it -thus the people ruled and not the judges.49 This doctrine was thus expressed on place cards at a banquet given to Governor Desha shortly after his election: "The Constitution of Kentucky : Its interpretation is known to the people of this Commonwealth, and is not to be found in the breasts of the judicial tyrants." 50 It was preposterous, they said, that a few judges beyond the reach of the people in their appointment and continuance in office, should declare the will of the people to be null and void and of no avail; it was, indeed, repugnant to all ideas of a republican form of government. "And where is the dictionary," it was asked. "where is the language in which there is such a change, in which the word servant signifies master, and the word judging signifies overlegislat- ing, or even only making laws?" 51 To show how absurd was the whole
46 Speed, Danville Political Club, 130.
47 Dec. 5, 1821.
48 May 16, 1822.
49 See Liberty Saved, or the Warnings of an Old Kentuckian to his Fellow Citizens on the Danger of Electing Partisans of the Old Court of Appeals (Louis- ville, 1825) Pamphlet, iv.
50 S. M. Wilson, "Old Court and New Court Controversy in Kentucky" in Proceedings of Kentucky State Bar Associations, 1915, 49. 51 Liberty Saved, 16.
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position of the judges, it was further suggested, "Had the judges the power of judging the laws, nothing could be law but their will; they would be more than kings; they would be dictators, despots, and the people would be their slaves.
"The sole judges of constitutions are the people, by their delegates or representatives, assembled in conventions.
"The sole judges of the laws are the people, by their delegates or representatives in the legislative assemblies.
"Any opinion, contrary to these truths, is monarchism." 52 It was even maintained by some that the power and will of the people (which was interpreted to mean only a majority) was so important and powerful that it should transcend even the constitution, for what is the welfare of a whole state compared to a musty piece of writing called a constitution? -"when gentlemen talk of the constitution, and point to that little book, as containing it. they talk nonsense-the will of the people is the constitu- tion-the Legislature expresses the people's will." 53 Old Isaac Shelby, whose mind had not been misled or clouded by the heresies of the times gave the warning: "The Constitution must be a shadow if it be made to yield to the will of each impassionate majority and those essential prin- ciples of a free government for which we have fought and bled must cease to be our pride and boast." 54
The new judges were appointed on January 15, 1825, and immediately set about preparing to open court. As the new court party controlled the machinery of the government the new judges proceeded regularly to organize using the Senate Chamber as a court room. Francis P. Blair was appointed clerk of the court and instructed to secure the records of the old court in order that business might begin. An order was issued demanding Achilles Sneed, the clerk of the old court, to deliver over all the court's property and records. Sneed refused to recognize the authority of this court, whereupon officers went to his office, and finding it locked, forced open the door and procured what they thought to be all the records and papers. Sneed was then summoned before the court and charged with contempt, was declared guilty and fined ten pounds. But it was soon discovered that the records of all pending suits had been hidden before the officers had raided the office of Sneed. This developed a rather serious situation for the new court feeling that it was backed by the people was in no mood to dally. The missing records mysteriously wandered back to Sneed's office, where they were forcibly seized by the officers sent to get them.55 In the meantime the old Court of Appeals had met in a church on the capitol square, and having been rudely deprived of its records, found it difficult to do business. It issued on February 5, a long address to the people, attacking the Legisla- ture and defending its own course.56 By the force of circumstances being unable to do likewise, it decided to do no business until after the August election, when it was hoped that the atmosphere would be clari- fied.57
An anomalous situation, fraught with great danger, now existed. Instead of one court, an evil that might not even be altogether necessary. the state was now saddled with two. The new court started out with the business where the old had left off-but first requiring a new oath from all lawyers that practiced before it. Here was the spectacle of
52 "Maxims" on the cover page of Liberty Saved.
53 Quoted in The Port Folio, Vol. XIX (1825), 168.
54 Quoted in Doolan, "Old Court-New Court Controversy" in Green Bag, XI, 183, 184.
65 Argus, Feb. 9, 19, 1825.
66 For text see Argus, Feb. 9, et seq., 1825. It was published in four install-
ments. Collins, History of Kentucky, I, 31, 32.
57 Argus, April 6, 1825.
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two authorities which touched the people closest, holding the final decision in matters of property and life, contesting for supremacy. This, of all disputes in the different departments of government, was most dangerous. The difficulties grew and ramified in all directions. What of the rest of the judicial machinery of the state? which court should be recognized, in appeals as well as processes from the highest court to the lower ones? Out of the fifteen circuit judges, about ten cast their lot with the old court, therefore refusing to have any dealings with the new judges. Some tried to avoid making a choice at all, one refusing to enter the decisions of either court on the ground that it was not the province for a circuit judge to decide, but for the people.58 Judge Jesse Bledsoe of the Fayette County Circuit Court overruled a motion and refused to hear argument in an instance where Robert J. Breckinridge moved to admit to practice a person who had been granted a license by Boyle and Owsley of the old court.59 The lawyers of the state naturally divided in their allegiance. Some, like Robert Wickliffe, refused to practice before the new court, while others, as J. J. Crittenden, George M. Bibb and Benjamin Hardin did practice before it.60 Out of the 580 lawyers in the state, 530 stood for the old court, in March, 1825, with others going over.61
The new court was in fact alone the active court; it decided cases and its opinions were published in the regular way. Most of the old court supporters were willing to let it have its short day of authority; they were looking to the coming August election when they hoped to banish forever this revolutionary set of judges. In fact all eyes were early turned toward this referendum, for it was known that the people would then pass judgment on the extraordinary course of events since the last election. Both parties entered the campaign early, knowing they either lost or won in the results. The old court party made a particularly hard fight, using every device in their campaign to educate the people and win votes. Many so-called "missionaries" were scattered over the state to enlighten the people on the serious situation and to proselyte among the supporters of the "Heathen judge breakers." The new court party accused them of having "stationed Missionaries, travelling Missionaries, and Tract Societies." 62 A potent weapon to stir up sentiment was the grand juries, which "presented" the Legislature, the judges, and even each other. Among the grand juries that presented the new court judges for their unlawful acts were those for Franklin, Garrard and Mont- gomery counties. The Union County grand jury presented the Legisla- ture for its unconstitutional proceedings, and declared that it deserved "the most indignant censure of all the good people of the commonwealth ; and as part of that people, we do hereby express our abhorrence of such conduct." 63 The new court party was not without its supporting grand juries. The Mercer County jury severely criticized the old court juries for mixing in politics, naming those of Montgomery, Franklin, and Garrard counties. They stated that "They view such attempts as a per- fect prostitution of the dignified functions of a grand jury to base electioneering purposes. *
* They view with the deepest reproba- tion the corrupt and unprincipled prostitution of the powers of Grand Juries in the Counties aforesaid." 64
The same old arguments, constitutional and otherwise, were reiterated
58 The Spirit of '76 (A small journal published at Frankfort during part of the year 1826, in support of the Old Court).
59 Collins, History of Kentucky, I, 32.
60 Argus, April 13, 1825.
61 Ibid., March 16, 1825.
62 Ibid., Feb. 2, 1825. 63 Argus, May 4, 1825.
64 Argus, April 27, 1825.
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by both sides. Each tried to scare the state into supporting their re- spective positions, by portraying the awful condition sure to follow if the other were sustained. George Robertson thus depicted his once happy state: "The condition of Kentucky is acknowledged to be a good one. It is inferior to that of no state in the Union. The people of Kentucky are intelligent. Their soil is prolific. Their climate propitious. In these particulars they are eminently blessed ; yet these people, so much favored by a beneficent Heaven, so much signalized by their peculiar natural capacities are oppressed with debt; their currency depreciated; their Constitution disregarded; their laws powerless; their lives and their property insecure; themselves driven to the verge of civil war; industry deprived of its incentives and despoiled of its rewards; fraud sanctified by law; the improvident living on the provident; the idle fattening on the sweat of the laboring ; the dishonest bankruptcy considered honorable; solvency, criminal; refusing to pay debts, a badge of patriotism; attempt- ing to exact payment, called oppression; the punctual laboring citizen de nominated aristocrat, 'tory'; the lazy and dissolute, who live by fraud and stealth, lauded as patriots, whigs, republican; travelers murdered for their money and no punishment inflicted; citizens murdered weekly and no murderers hung; the fines inflicted on those who support 'the powers that be' remitted; the honest alarmed; the upright miserable; the State degraded. This is a faithful but, very imperfect condition of our coun- try. Who so blind as not to see the causes of all these effects, in an unjust and unconstitutional administration of the government? The best form of government corruptly or foolishly administered will be oppressive." 65
The new court party poured forth their wrath against the tyrannical judges and their aristocratic supporters in numerous pamphlets and hand bills, one of the former being entitled, "Liberty Saved, or the Warnings of an Old Kentuckian to his Fellow Citizens on the Danger of Electing Partisans of the Old Court of Appeals." The "Old Kentuckian" bitterly assailed his political opponents and the old court judges: "Triumvirs. would be kings, emperors, dictators, despots, holy allies, all vociferate, as loud as bull dogs, that judges have the right of breaking your laws whenever they think them to be unconstitutional, and that the majority of your late general assembly, your delegates, yourselves, by representa- tion, established expressly and exclusively, in virtue of your constitution, to make your laws, had no right to stop their usurpations, and to throw down their thrones, those of the old court of appeals, not only by the law entitled 'an act to repeal the law organizing the court of appeals, and to reorganize a court of appeals', but by address ; and moreover, to close their plan of war, and of destruction, to prey afterwards on your rotten carcasses, and on your fatherless widows and orphans, not only they dare to throw you the gauntlet, but they menace you with forty thousand bayonets." 66 Not only would the old court party thwart the will of the people orderly expressed through their Legislature, but they would through their heartless course of pushing every debtor to the wall, destroy the backbone of the state's prosperity and drive away the real producers of its wealth. "The land and its products and its laborious population," it was declared, "are the permanent capital of an agricultural country. Gold and silver coin are not permanent settlers; they are nothing but running strangers, visiting you when you have products-running from you when you have none. It is not on them that the wealth of the land depends ; it is on its tillers ; why then not attach population to it by prop-
65 Quoted in Doolan, "Old Court-New Court Controversy" in Green Bag, XI, 184.
66 Liberty Saved, 11.
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erty laws securing the laborious husbandman against unforseen calami- ties ? But you sleep, Brutus, and Rome is in the hands of Tyrants." G7
The old court party held meetings in many of the counties to rally their forces within the state, and sent letters and other communications to men beyond the state whom they thought might aid. As already men- tioned, Jefferson was appealed to, to set at rest the heresies that were being circulated in his name. Letters were sent to the President and to other high officials of the Federal Government, giving distressing accounts of the evils that had overtaken the once happy state. By so doing, the old court party hoped that if no direct aid should be given, that at least there might grow up an indirect influence operating to their benefit-at any rate, the rest of the country should know that not all Kentuckians had suddenly run mad. A letter addressed to the President read, "Sir, Our Judges of the Court of Appeals repealed out of office; the constitu- tion of our state trodden under foot; our treasury robbed and empty, capitol burned down, convicts in the Penitentiary naked and starving, governor's son a murderer and cut throat, a deficiency of $40,000 in our revenues, a denial of justice by our execution laws, a relief Legislature- think ye will it not take forty thousand bayonets to right us in politics !" 68 The new court men soon learned the contents of this letter and of other ones sent out of the state, and immediately raised the cry of alarm, that the old court party was suggesting the settlement of the question by bayonets and was hinting at Federal aid. A sensation was created for a time over these letters. Andrew Jackson, who had recently visited the state, was drawn into the controversy slightly and not more so because of his great desire to steer away from the factional trouble. He was re- ported to have said in Lexington that "forty thousand muskets would be required to rectify the politics of Kentucky." When charged with this statement, he indignantly repelled it as beyond his broadest imagination. He said he had "no recollection of speaking at all about the local affairs of your state. It is a subject about which I should not feel myself at liberty to interfere. * * * It is scarcely possible that, sharing, as I did, the politeness and hospitality of the citizens of Lexington, I should venture to insult them by so unkind a remark. I did not; it has no re- semblance of me; for, if so, then indeed might I be considered 'a military chieftan,' as has been charged." 69
There is little question that a dangerous condition prevailed which might at any time develop into armed strife. Niles said, "If what is told to me of the state of the public mind in Kentucky is true, there is a greater shew of feeling in that commonwealth than has caused the revolution of an empire. Indeed, it would seem that so much excitement could not exist in any other than a free state, surrounded by other equally independent but less agitated communities." 70 In this surcharged at- mosphere the election was held without serious disorder. The result was a complete victory for the old court party as far as the election could make it. Since only one-fourth of the Senate was up for election, the victory could not be complete here. As it was later determined, this body divided equally on the questions of the day-nineteen to nineteen. Di- rectly after the election it was estimated that the House stood sixty-two for the old court, and thirty-eight for the new court. The people had now spoken; it was taken as a mandate to turn out the interloping new judges. This was the account given by Niles: "After one of the most arduous political struggles that ever existed in a state-judging by what we have seen in the newspapers, the 'old court' or 'anti-relief' party, has
67 Liberty Saved, 7.
68 Argus of Western America, Jan. 19, 1825. The name of this paper was soon changed to simply, Argus.
69 Correspondence in Niles' Register, Vol. 28, p. 51.
70 Niles' Register, Vol. 28, p. 82.
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succeeded by an overwhelming majority. In the last Legislature, fifty- four members were favorable to the 'new court,' and forty-four opposed to it. In the next Legislature, there will be a majority of about two to one in favor of the 'old court,' and against the relief system. So it is put down as absolutely certain, that the 'new court' will be abolished and the 'old' one restored to all its former powers. As the people have brought this about, there cannot be, with the 'new court' party, any dis- pute as to the right of the matter. The whole of the 'relief system' will be abolished, as rapidly as the state of things will admit of-and Ken- tucky presently resume her former prosperous march in population, wealth and power. It is most earnestly to be wished that the ascendant party will use its means with great moderation-for, in the other, are cer- tainly included some of the noblest and the best citizens of the state; and, though we have believed and said, from the first, that the whole of the 'relief system' was wrong, and vitally at war with the interests of the people of Kentucky, we would not abuse those who thought differently- and though the further progress of 'the system' should be absolutely checked at once, the evils which have been inflicted must be gradually healed, as with paternal care. If so, the removal of them is certain-for the people will be recalled to the old-fashioned way of tilling the earth, or by some other profitable employment, to get money to pay their debts, instead of running to and fro, and wasting their time at court houses and lawyers' offices, to postpone the honest settlement of them.
"The ardor of the contest may be judged by what is stated in the 'Re- porter'-that the governor, personally, headed his party at Frankfort, and that the chief justice of the 'new court' harangued the voters of Fayette County for three hours: yet Mr. Wickliffe was re-elected to the state senate. It is added, that, after the election, when Mr. W's friends were collected to regale themselves and congratulate one another on the result, a large quantity of Emetic Tartar was introduced into the barrels of liquor, by which several hundred men were made sick, and the lives or many seriously endangered." 71
The new court party received the results of the election with some- think akin to consternation. They had not expected the people to so readily vote themselves out of the easy method of paying their debts. They claimed that a lavish use of money and of all kinds of chicanery and unfair means had been resorted to to delnde the people. "The Coun- try Party," said the editor of the Argus, "are too poor to sustain them- selves against the means which have been put in requisition this year to defeat them." He expected to see the new court repealed; the people had been hoodwinked, but he would put his hopes in the next election. "We consider the present majority as having been obtained by any other means than such as are honorable and honest." 72 And in Franklin County, "There never was a more ardently contested election than ours. The county contains about 1400 votes, and near 1600 persons voted." 73
Holding that the election had definitely settled the question, the old court judges immediately took on new life, and began active preparations for holding court. The governor declared this to be an open contempt of law and order, and some counselled him that it was his duty to inter- pose his authority and suppress them. He had refrained to do this here- tofore, as they had made no efforts "to give or execute judgments or decrees, and as the meetings were not attended by any breach of the public peace, it was not thought the duty of the executive to molest them, or in any manner to obstruct their proceedings." But their inclination recently exhibited "to proceed in the exercise of judicial power and force
71 Niles' Register, Vol. 28, p. 405; see also Vol. 29, p. 3.
72 Aug. 10, 1825.
78 Ibid.
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the execution of their orders, judgments and decrees throughout the state, in direct hostility to the existing court and an act of the General As- sembly, which the executive is bound by the Constitution and his oath to see duly executed," would not be tolerated. Desha then significantly remarked: "I need not inform the Legislature how unpleasant will be the duty which such a course of conduct on the part of the former judges will impose, nor need I tell them that, painful as it may be, the executive will not shrink from the performance of that which he conceives him- self bound to do by his oath of office and the Constitution of his country." 74
The situation now became more alarming than it had been at any previous time. The new court and its supporters resolutely refused to give way until the law erecting the present court had been repealed, and they were determined to prevent that repeal if possible. The people had been deluded; their will had not been honestly expressed in the election. George Robertson said: "This unexpected and perilous contumacy brought the antagonist parties to the brink of a bloody revolution. For months the commonwealth was trembling on the brink of a heaving volcano." 75 The old court now attempted to recover its records from the office of Francis P. Blair, the clerk of the new court, but was resisted with such a show of force that they were forced to desist to avert civil strife. Arms and ammunition had been collected not only to protect the new court, but also in a possible contingency to chase out of the legis- lative halls the House of Representatives. Men high in authority were accused of being parties to these preparations. A committee of the House of Representatives was appointed to inquire whether any, and, if any, "what military preparations have been made to prevent the House of Representatives or any of its committees or any of the courts of justice from the discharge of their legitimate functions." A long re- port was made in which it was declared that the situation "cannot but make on the minds of your committee the strongest impression of the awful crisis at which the judicial controversy which agitates the coun- try has arrived." The committee concluded its report as follows : "Heretofore party spirit and unwise legislation have sufficiently blighted the prosperity of the once most prosperous part of creation. Yet in all our struggles and divisions, reason, and not brutal force, was alone appealed to.
"Judging from the declarations of his excellency in the canvass for his present station, whatever the people desired was to be the supreme law of his administration. The threat in his message to resist the popular will, as evinced at the late election, was on that account heard with the greater surprise. Still, that his excellency would openly or indirectly attempt to execute his threat, or that he would connive at the fact that others were preparing to shed the blood of his fellow citizens and that he would use no efforts to prevent it, was not believed.
"Nay, your committee must say that they had fondly cherished a belief that there was no officer, or pretended officer, of this government that was ready to light up the torch of civil war and imbrue his hands in the blood of a brother; yet, unwilling as they were to believe the fact, they are constrained to report to you that bold arrangements have been made to you for these very purposes."
They, therefore, moved the resolution "that each and every citizen of this commonwealth be advised and admonished to abstain from aiding and abetting F. P. Blair and his associates in resisting or attempting to resist the sergeant of the Court of Appeals in the execution of the order of process of said court and all other attempts to excite commo-
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