USA > Kentucky > History of Kentucky, Volume II > Part 12
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74 Message to the legislature, November 7, 1825, in Niles' Register, Vol. 29, p. 221. 75 Collins, History of Kentucky, I, 497.
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tions in the country, or to disturb the public peace and harmony." After much debate, during which a substitute resolution of less severity was offered and voted down, the original was adopted, 64 to 25.76
During this period of heated animosities, when no one knew what the next day would bring forth, Col. Solomon P. Sharp was murdered in a most dastardly manner by a person who, in the darkness of night, stabbed him as he was in the act of welcoming him into his home. As Sharp was active in the cause of the new court party councils, it was immediately charged that his political enemies had done it. Regardless of the truth of the matter, it made a perilous situation still worse. The Legislature now controlled by the old court party showed its utter con- demnation of the crime by passing a resolution "That they will wear crepe on their left arms during the present session" and offering a reward of $3,000 for the apprehension of the murderer.77
Immediately on the meeting of the Legislature in the early part of November, the question of the judiciary was referred to the Committee on Courts of Justice, and a resolution was passed, 60 to 36, "that it is the deliberate and solemn opinion of this house, and of a large majority of the good people of this commonwealth, herein represented, that the act entitled 'An act to repeal the law organizing the Court of Appeals, and reorganizing a court of appeals,' is unconstitutional and void, so far as it purports to repeal or abolish the Court of Appeals and erect and establish another court in its stead; and that the Court of Appeals, so attempted to be repealed and abolished, having been created by the constitution, is (the said act notwithstanding) the Supreme Court of this state, and the judges thereof, having neither resigned nor removed from office by either of the modes recognized and provided by the constitu- tion, are still in office and should be so considered and respected by all the functionaries of the government." 78 A bill to repeal the new court act was soon brought in, and on November 14 the House passed it by a majority of twenty-one votes.79 The situation was quite different in the Senate. There only one-fourth of the membership had passed through the ordeal of the recent election, and as a result the old court party had failed to capture a majority of the members. During the campaign it had been agreed in a number of cases that the senator who was not before the people for election should be governed in his vote on the court question by the majority opinion in his district as expressed in the election of representatives. Thus would the will of the people be regis- tered without the delay interposed by the constitution, in the Senate. After the election the old court supporters became very active in their demands that the Senate should be governed by the known will of the people, so clearly expressed in the recent election of the House. Meet- ings were held and resolutions voted calling on the senators to vote for the repeal of the new court act. A meeting was held in the senatorial district composed of Todd. Christian and Trigg counties, which passed the following resolutions : "That the majority so ascertained at the polls is considered by us as tantamount to the most deliberate and positive instruction to our Senate to vote for the repeal of said law." Young Ewing, the senator from this district, very properly refused to be bound by any such arrangement. He declared that the position and functions of the Senate as deliberately provided for by the constitution would be set at naught, if any such agreement should be entered into.80 For
76 Niles' Register, Vol. 29, p. 276.
77 Jeroboam O. Beauchamp was arrested and convicted of the crime and spent a miserable and melancholy period in the Penitentiary before he was finally hanged. Collins, History of Kentucky, I, 32; Niles' Register, Vol. 29, pp. 29, 197; Vol. 30, pp. 267, 366, 382, 443; Acts of Kentucky, 1825, 149. 78 Niles' Register, Vol. 29, 196.
79 The vote was 58 to 37. Robertson, Scrap Book, 95-97. 80 Argus, Sept. 14, 1825.
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what was the Senate, if not to act as a steadying influence in just such a crisis? True enough, senators might change their minds on the court question, but it should be the logical reasoning from the merits of the question that should produce the change, and not the hasty expressions of people not voting for the senators. So, when the bill came before the Senate it was defeated by the deciding vote of the lieutenant-gov- ernor, Robert B. McAfee, who had gone into office with Desha on the first wave of resentment and exasperation against the old judges.
The situation was no nearer a solution than. before the election.81 Thus thwarted, the old court majority in the House passed the afore- mentioned resolution warning the people of the state to refrain from aiding Francis P. Blair in maintaining possession of the court records. It was not only through the forbearance of the old court authorities in not attempting to forcibly seize the records that averted civil strife. Regardless of the constitutionality of the new court act, it would have been making confusion more confounded had the new court abdicated its powers before the law setting it up had been repealed, especially after the old court majority in the House had recognized its potency and standing as law by attempting to repeal it. Now to disregard it, since they could not repeal it, would have been more disruptive of law and order than the unconstitutional act first passed. Blair steadily refused to give over the records until he was requested by law to do so.82
But it was painfully evident to the new court party that their power was waning and that most likely one more election would decide the issue definitely against them. They had, therefore, early expressed a wil- lingness to tack to the approaching storm and compromise with the greatest advantage possible. Governor Desha had admitted in his message to the Legislature that, "Instead of quieting the country, as was ardently desired, the act of the last session reorganizing the Court of Appeals, to- gether with other causes made to operate, has filled it with new agitations." That the people were dissatisfied and wanted a change was evident, but exactly what change they wanted was not so clear in the opinion of the governor. He therefore suggested a line of procedure which had the broad principles of a compromise and which would lead the new court party out of their troubles with as little humiliation as possible. "It is an undoubted fact," he said, "that neither the former judges nor the present incumbents can unite upon themselves the confidence and respect of both the contending parties into which our population is divided. Nor can either proceed to exercise judicial power without doubts in the minds of many as to the validity of their acts. The new court is deemed by many to be unconstitutional and its acts void; and, were the reorgan- izing act repealed, the same doubts would extensively hang around all the acts of the former judges. unless they should receive new appoint- ments and commissions from the Governor and Senate. It is of great importance to the state that the judges of the appellate court should not only have the entire confidence of the whole people, but that their author- ity should be deemed by all parties unquestionable. To accomplish these desirable ends, the way is believed to be open to the present General Assembly. I have the fullest confidence that the present incumbents in the Court of Appeals will present no obstacle to any specific arrangement which the Legislature may adopt, and, although it may not be usual for the executive to give assurances beforehand of the course he will pursue upon a probable or a possible event, yet the extraordinary circumstances
81 After the vote had been taken in the Senate, Niles reported that "The hope of adjusting the political differences which disturb the repose of the good people of this state, and so materially injure them, in every respect, is a very faint one." Niles' Register, Vol. 29, p. 248.
82 Argus, Dec. 14, 1825.
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of the times and the peculiar attitude in which I am placed seem to require of me the frank declaration that, should any measure be adopted by the General Assembly with the view of quieting the troubles of the country, by the appointment of an entirely new set of appellate judges, I shall feel myself bound to select them equally from the two contending parties. However this recommendation and assurance may be received by violent partisans, I have, in making them, discharged what appeared to me to be a sacred duty, and I leave the result to God and the people. If our agitation shall be thus ended, it will be happy for us all; if they are to be continued, I shall endeavor to perform, through scenes yet untried, with fidelity and zeal, the arduous duty entrusted to me by the people, of seeing the laws executed in good faith and preserving the peace of the country." 83
This invitation to compromise a question which the old court party considered had been definitely settled in the recent election was naturally not accepted-they would at least not consider it until they had made their attempt to repeal the new court law. Now that they had made the attempt and failed, they were willing to investigate the possibility of other settlements. In December a committee was appointed for this purpose. Numerous propositions were made along the lines set down by Desha, always preserving the principle of the equality of the two parties. One plan would reconstitute the court and give two of the judge- ships to the old court judges, with the other two places filled by new court judges. This arrangement was rejected. The new court leaders next offered the proposition that the membership of the court should be increased to six and thereby include all three of the old court judges .. This was also refused, as the old court party believed they should not compromise away the principle for which the people had stood in the past election.84 The question was now remanded to the people again for the decision in the next August election.85
The scenes of the former campaign were reenacted. The same argu- ments and criminations were bandied back and forth; the same intensified passions prevailed. Crittenden wrote Clay that the state was fast ap- proaching anarchy.86 But the new court party knew that if the election went against them this time, their doom was sealed. They therefore sug- gested anew their compromises and assumed a conciliatory attitude, and the Argus, near the end of the campaign, suggested that if the old court party won, the new court judges should resign and let the power pass back into the hands of the former court.87 However, this position did not deprive them of the opportunity to pour forth their bitter denuncia- tions of their opponents. They set up a campaign organ called "The Patriot," in which they vigorously carried on the fight. The old court party felt assured of a complete triumph, for they considered control of the House certain, and the Senate they had good reason to believe would be captured, since half of its membership would have been sub- jected to the popular will on the court question with the conclusion of this election. A popular manifesto was issued, signed by the minority of the Senate and the majority in the House, to be used as a campaign document. It was asked: "Is the agony of the pody politic never to be over? Is there any inherent defect in our social or political organ- ization? Or whence this sad fate? Why does your governor in sub-
83 Niles' Register, Vol. 29, pp. 221, 222.
84 Robertson, Scrap Book, 102, 103.
85 Niles said, "The legislature of this state has adjourned without doing any thing to still the 'throes and convulsions' of public opinion, which have so long agitated the people, and grievously retarded the growth of population and wealth in this state." Niles' Register, Vol. 29, p. 310.
86 Crittenden MSS., Vol. 3, Nos. 528, 529. Letter dated December 26, 1825. 87 Quoted in Kentucky Reporter, Aug. 21, 1826. Also see ibid., passim.
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stance declare again, at the opening and close of your session, that he will preserve peace by making war? Your guardians wrong you. It is time to escape from minority and assert the right of manhood." 88 Robertson in this manifesto pointed out the tyranny of the majority in the Senate and the executive department, declaring that they were clearly blocking the expressed will of the people. "You have deliberately decided by more than sixty-hundredths that it [the new court law] is in conflict with the constitution; and to what power on earth shall an appeal be taken from your judgment? To the governor or lieutenant-gov- ernor? To senators who disregard your most formal, written instruc- tions? God forbid. But it is for you to determine whether you belong to them, or they to you! Whether your government was instituted for your happiness, or their exclusive enjoyment ?" 89
The old court party also had its campaign publication, "The Spirit of '76," which kept up a constant bombardment. The argument that had been so often used by the new court party of the right of the people to instruct their representatives was now used against them with strong effect.
Again the old court party carried the election, securing control this time of the Senate.90 With both branches of the Legislature now in their possession, the old court party soon set to work to clear up the judicial tangle. In the legislative parryings and maneuvers that pre- ceded the final vote on the abolition of the new court there were de- veloped over again the different efforts at compromise to avert the com- plete abdication of the new court judges without some concessions from the old court party. One of the most interesting and most important moves was made by Martin P. Marshall in the House of Representatives in a set of resolutions declaring that the governor, lieutenant-governor, judges of both the old court and of the new court, together with all the senators and representatives, should resign, in order that the people might in a new election, to be held the first day of the following May, decide the whole question so that there might be not the slightest doubt in anyone's mind as to what was wanted. This plan appealed to a great majority of the representatives, irrespective of parties, being voted through 75 to 16. But when it reached the Senate it was promptly killed by a strict party vote of 21 to 16. It was in fact a new court scheme which had successfully captured the representatives.91
Having disposed of all dilatory obstructions of the opposition, the old court party finally, on December 30, 1826, pushed through their bill repealing the new court out of existence. Governor Desha used his last constitutional power in an effort to defeat it by vetoing it; but, as the Legislature might pass a bill over the governor's veto by a simple ma- jority, he was doomed to defeat. The bill finally went through the House, 56 to 43, and the Senate, 22 to 13. The act declared that the new court was in fact illegal, as judges could be removed from office only by impeachment or address; that the people in two successive elections had upheld this view; and that, therefore, the judges of the old court of appeals had been and were still the only constitutional judges of that court. It was also declared that all laws changed, repealed or affected in any way by the new court act were and always had been in full force- that everything always had been and still was as if the new court law had never been enacted.92 On the happy outcome of the trouble, Heze- kiah Niles said: "Without going into the merits of the old court or of
88 Robertson, Scrap Book, 103.
89 /bid., 100.
90 There were 56 Old Court representatives and 46 New Court, and 21 Old Court senators and 17 New Court. Collins, History of Kentucky, I, 33.
91 Collins, History of Kentucky, I, 33.
92 Ibid. A different numerical vote is given in Niles' Register, Vol. 31, p. 324.
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the new court, we congratulate our fellow citizens of Kentucky that they again have only one Court of Appeals." 93
The passions of the people were now fast subsiding, and a tendency was to forget as fast as possible the times that harbored the dark specters of civil strife and bloodshed. At a public dinner at Cynthiana, in Har- rison County, the sentiment was expressed in this toast: "New and old court distinctions-a speedy oblivion to the political jarrings of liberal and honest men." 94 The old Court of Appeals which had been sitting at the regular sessions during the past year and which had by the early part of June disposed of ninety-six cases and fifty-nine motions, now came into complete possession of all its records and rights. During this period the new court almost ceased to exist. The election of 1825 had greatly discredited it, but the victory for the old court party in 1826 was too much. In December, John Trimble and Razin Davidge resigned. The governor appointed Frederick W. S. Grayson and Robert P. Henry to fill the vacancies, but the positions had no attractions now-the former refused the offer and the latter, a member of Congress, feeling no desire to resign a sure position for a make-believe judgeship, either was not notified of his appointment or neglected making a decision to the time of his death nine months later. James D. Breckinridge, of Louisville, was then offered the position, but he also declined. John T. Johnson was then appointed and finally took his seat. On January 1, 1827, Francis P. Blair, the clerk of the erstwhile new court, in response to an order of the regular Court of Appeals, delivered over all the records, papers and books in his possession. Now for two or three years the personnel of the court was in constant change, reflecting the interplay of politics and personal political dealings. John Boyle, who had been chief justice through the stormy days when the new court had held sway, resigned in November, 1826, to accept the appointment to the Federal District Court of Kentucky. As a measure of conciliation, as well as a recogni- tion of his ability, the Governor and Senate nominated and confirmed as chief justice George M. Bibb, who had formerly been judge as well as chief justice of the Court of Appeals and who had recently played a prominent part in state affairs as a relief and new court leader.95
This Legislature, before adjourning, made an attempt at a parting / blow at the men who had served as new court judges. There was intro- duced in the House, but defeated, a bill requiring the "pretending judges" to refund to the state the money they had drawn as salaries.96 The influence of the new court was not yet dead throughout the state nor on the bench, for Bibb was now chief justice. In the election of 1827 the court question played little or no part outwardly, but apparently Owsley and Mills, the remaining old court judges, had secretly promised in the reorganization to resign, after the new governor and Legislature should be elected, for this was the year to elect a new governor. The idea seems to have been that they would resign only to be reappointed by the new administration, for it was confidently expected that it would remain in the hands of the old court party; but by so doing, it could be said that the court had now been completely reconstituted since the difficulty had arisen and that the people had had an opportunity to fill all three places. The procedure was carried out in a very unusual way, and covertly. Mills wrote out his resignation partially and sent it to a friend to later complete and send to the governor. This friend prevailed upon him to reconsider, and so he did-the resignation was never completed and sent
93 Ibid.
94 Kentucky Reporter, Dec. 11, 1826.
95 Argus, Jan. 17, 1827; Collins, History of Kentucky, I, 34.
96 The amounts drawn by them follow: Barry, Haggin, and Trimble, each $1,312; Davidge, $1,175; Richard Taylor, sergeant, $161; and Thomas B. Monroe, reporter, $373. Collins, History of Kentucky, I, 34.
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to the governor. Owsley expressed his intention of resigning to the gov- ernor, but actually sent the written document to a friend to forward. The friend naturally prevailed upon him not to resign, and so the gover- nor also did not receive this resignation. Chief Justice Bibb, learning of this procedure, claimed that they did actually resign, and that two vacancies existed and should be filled. Bibb called upon Governor Met- calfe, who had just been elected as an old court man, to accept their resignations and appoint two new judges. The governor declared that no vacancies existed, as he had never received any resignations. A heated correspondence developed between the chief justice and the governor, with the former flatly refusing to hold court until new judges were appointed. Finally, Mills and Owsley, in order to straighten out the tangle, handed in their resignations to the governor, who accepted them, only to straightway reappoint them. But the Senate, which had swayed toward the new court party in the past election, now refused to confirm the nominations. Metcalfe then nominated Joseph R. Underwood and George Robertson, the latter having been a tower of strength to the old court party during the recent troubles, and the Senate promptly confirmed them. George M. Bibb, the chief justice, who had been elected by this Legislature to the United States Senate, now resigned, leaving the chief justiceship vacant. Judge Robertson was nominated for this position, but was rejected. The governor then successively nominated Richard A. Buckner, John J. Marshall and Joseph R. Underwood, all of whom the Senate refused to accept. At the meeting of the Legislature after the election of 1829, Judge Robertson was again nominated and this time accepted by the Senate, and Richard A. Buckner named for the place made vacant by Robertson, and accepted.97 On April 15, 1829, the Court of Appeals declared all the acts and decisions of the new court null and void in the case Hildreth's Heirs v. McIntire's Devises.98 Thus was the court question finally settled.
During the decade following the War of 1812, Kentucky had sig- nally failed to keep pace with the progress she had made during the pre- ceding decade. The buoyancy and expectancy that predominated then was now sadly lacking. Like a child playing with fire, she began playing with the banks and replevin laws, involving financial and economic prin- ciples which she did not understand. Banks looked beautiful in their operation, turning out crisp notes beautifully engraved, and stay laws were no less inviting. But when, through bitter experience, it was dis- covered that these things were not what they seemed, the state was so divided and such antagonisms had grown up that for almost two years she hovered on the brink of civil war. Such conditions set her back far in her development along all lines. Her manufactures were fast going, and her commerce withered; her population fled to happier regions and her land left untended. There can be little doubt that Kentucky was politically, financially and industrially the most sorely beset state in the Union-so dark a contrast with her former self.99
George Robertson in withering terms indicted those who were respon- sible for the woeful conditions: "You have made it the interest of men to violate their most solemn contracts and live by fraud. Man has lost confidence in his fellow man; internal commerce is stagnant; foreign trade unequal and unproductive ; agriculture despondent; virtue pro- scribed ; patriotism in despair." 100
This advice, indicative of the situation, was offered by "Many Ken- tuckians": "There may be in America too many importers and shop-
97 Argus, Oct. 15, 29, Dec. 10, 1828.
98 J. J. Marshall, 206.
99 See McMaster's opinion, in History of the People of the United States, V, 162-166.
100 Robertson, Scrap Book, 110.
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keepers, but there will never be too many mechanics, manufacturers nor farmers; and there is, unfortunately, another thing to say on the imports of foreign useless articles-that thing is, that, in spite of the best wishes of renouncing them, there will be in our American family always too many fools to not consume always too much of them. *
* * Re- nounce as much as you can foreign luxuries ; manufacture at home as many as you can of the articles you want; let your lands produce as much as possible; you shall be happy. Till then you will be poor." 101
People were leaving the state in hundreds and thousands. The emi- grants were more than those coming in. In 1825 a news item said: "It is supposed that more than a hundred wagons, with families, have passed through Frankfort within the last ten days." 102 Bad conditions were driving the people away, but what elements in the situation were doing it and who were responsible for the bad conditions were matters of dispute. The anti-relief and old court parties naturally held that vicious legislation characterizing the period was responsible. One observer said : "Kentucky has probably lost as much as she has gained by migra- tions since the fatal year 1818, when the forty-three 'independent banks' were littered, though her longest-cultivated fields have not yet lost any portion of their original productiveness, and her population is still very sparse." 103 The relief and new court parties saw people leaving for the opposite reasons. An aristocracy and tyranny of wealth had grown up which thought more of money than of lives, who would grind out the uttermost farthing owed them or ruin the country. This warning was given: "Lords of Kentucky! you are slumbering on your interests and meanwhile the most industrious part of your population deserts your soil, and the newcomers, instead of stopping on it, are going to settle in other states, where they do expect better protection. Continue op- pressing the industrious ; you will have deprived them of their properties ; you will have all the land to yourselves; but, without hands to till them, what will they be worth to you? Return spoliations, or you shall be gone." 104
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