USA > Kentucky > History of Kentucky, Volume II > Part 15
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The Supreme Court's decision on the land laws created much uneasi-
87 Kentucky Gazette, March 28, 1822.
38 Ibid.
39 "Remonstrance to Congress," House Document, No. 69, 18 Cong. 1 Sess.
40 Green v. Biddle, 8 Wheaton 1-18.
41 Ibid., 18; Niles' Register, Vol. 20, p. 36.
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ness coupled with resentment, especially so since it came when the cup of woe of the average Kentuckian was full to running over. Having just secured replevin laws to protect himself from the ravages of the creditor, the Kentuckian was now being beset from another quarter in another vulnerable spot. Surely he of all people was the most un- fortunate. In his message to the Legislature in October, 1821, Governor Adair called attention to this new danger. He said, "Whatever diversity of opinion may have existed, as to the expediency of some of the pro- visions in the latter acts [occupying claimant], the legislature never doubted its authority to pass all of them; and this authority has been affirmed to exist by our highest judicial tribunal in every instance where the question has been made. To estimate the great benefits flowing from the security and confidence inspired by this system, we have only to imagine what appearance, without it, the face of the country would now exhibit, and compare it with the state of improvement actually existing. The validity of some of those acts has been called in question before the Supreme Court, upon the ground of their reputed repugnancy to the compact between Kentucky and Virginia. It is remarkable, if the repug- nancy really exists, that Virginia herself has never complained of it; and that she has never asked for the constitution of that tribunal which the compact itself, contemplating possible infractions of its stipulations, provides for ; but that, on the contrary, she has, for such a length of time, acquiesced in that course of legislation which the policy of this state im- periously demanded, and which has so essentially promoted its prosperity. That the state of Kentucky had intended strictly to observe the compact, cannot be doubted; for, besides the good faith which has ever character- ized it, the compact has been incorporated in both our constitutions- one of which was adopted subsequently to the act of 1797; and thus has given to it the most solemn and fundamental obligation. The character of the state, and the public interest, would alike seem to require that no measure should be omitted, which may tend to vindicate both." He, therefore, recommended to the Legislature that it retain counsel to support the validity of the state laws and consider the "expediency of opening a communication with Virginia, for the purpose of those mutual amicable explanations which may be called for by the occasion." 42
The Legislature, following the advice of the governor, passed a set of resolutions in October (1821) accompanied by a temperate report, de- claring that it considered the decision of the Supreme Court "incompatible with the constitutional powers of this state, and highly injurious to the best interests of the people; and therefore do, in the name of the common- wealth of Kentucky, and the good people thereof, solemnly remonstrate and protest against any such adjudication." It also resolved that two commissioners should be elected by the joint vote of both houses who should go to Richmond to treat "concerning the meaning and execution of the compact between this and that state; to obtain, if practicable, from Virginia, a declaration of her satisfaction with the construction and performance of said compact on the part of this commonwealth; and, if such declaration cannot be obtained, to invite a discussion of her objections; and, with a view to a final adjustment, to co-operate with Virginia in constituting a board of commissioners, as provided for in the 12th article of the compact." It was also provided that the com- missioners should attend the rehearing of Green v. Biddle in the Supreme Court, and oppose any decision that might be attempted to be procured declaring the occupying claimant laws void, "in such a manner as they may deem most respectful to the court, and most consistent with the dignity of this state." 43
42 Niles' Register, Vol. 21, pp. 190, 191.
43 Niles' Register, Vol. 21, pp. 404-405; Acts of Kentucky 1821, 456-469.
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Kentucky felt that a serious situation had arisen. The right to deal with what she considered her own affairs was about to be challenged and perhaps seriously affected. The source of all the trouble was the compact with Virginia, entered into with no thought that it would be- come a weapon destructive of the rights of the state. As Governor Adair had said, Virginia was not concerned in the present trouble; she was not contending that any rights secured under the compact were being violated. It was, therefore, the logical move for Kentucky to forestall the Supreme Court if possible by securing the positive and perfect agreement of Vir- ginia as to the meaning of the compact.
Henry Clay and George M. Bibb were selected to go to Richmond to carry on the negotiations.44 In February, 1822, they appeared before the House of Delegates. Both had been born in Virginia but were now Kentuckians of great prominence. Their visit attracted much attention. The House was crowded with ladies and high dignitaries of the state to hear and do honor to these Virginia-born statesmen. They first presented a memorandum consisting of two propositions, either one of which they hoped to have accepted. Their first desire was to have Virginia to agree and state specifically that the occupying claimant laws of 1797 and of 1812 were not contrary to the intent of the compact ; but if she were not willing to do this, then she should appoint commissioners to confer with Kentucky commissioners for the purpose of arriving at an agreement. Clay spoke first. On his way to Richmond he had visited his birthplace, the "slashes" in Hanover County, where he had seen again his father's grave and had gone over in his mind the days of his youth, and had re- called vividly his journey across the Alleghanies into the regions of Ken- tucky. With his mind revelling in such an atmosphere, he spoke for three hours, carrying his audience with him as he recounted the hardships of the early pioneers, who had risked their lives and everything to hew out for themselves homes in the wilderness. To be deprived of those homes by others who occupied places of security while the pioneers were facing the dangers was not just and should not be expected. He struck home the sentiment of love for home and fireside by quoting the lines from Scott:
"Lives there a man, with soul so dead, Who never to himself hath said, This is my own, my native land?" 1
The next day Bibb spoke to the same crowded chamber. Although both had attracted much favorable notice and expressions of friendship for themselves and the state they represented, they failed in securing the acceptance of their first proposition.45
The Virginia government, however, appointed a commissioner to go to Frankfort to continue the negotiations. Benjamin W. Leigh was selected and appeared in the Kentucky capital in the following May. He addressed the Legislature at great length, setting forth the complicated claims of Virginia, which had to do mostly with certain military lands "below the Tennessee," and which had not been entered before the sep- aration of Kentucky. He was treated with becoming hospitality and friendliness by the Kentuckians, going the rounds of banquets and re- ceptions.46 Treating directly with Clay, as the commissioner of Ken- tucky, Leigh came to an agreement on June 5. The whole land ques- tion was to be submitted to a board of commissioners, none of whom
44 Kentucky Gazette, Feb. 21, 1822.
45 Kentucky Gazette, Feb. 28, 1822; Colton, Life and Times of Henry Clay, I, 70, 71.
46 Kentucky Gazette, May 23, 1822.
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were to be citizens of Kentucky or Virginia, who should meet in Wash- ington, hear arguments from both sides, and make their award "on or before" April 1, 1823. A supplementary agreement was also entered into on the same day concerning various details, the most important of which were that the board's decision should not affect the sale of lands west of the Tennessee as provided for in the act of December 21, 1821, and that 109,449 acres represent the maximum amount of land that yet re- mained unlocated through warrants granted by Virginia prior to May I, 1792, to "her State line" troops.47 Kentucky immediately entered into the spirit of the agreement by appointing Hugh L. White of Tennessee and Jacob Burnett of Ohio as her commissioners, and retaining Clay and John Rowan as state's counsel to appear before the board.48 Vir- ginia, however, contrary to expectations proved obdurate. Her Senate definitely defeated the Clay-Leigh agreement and thus left the matter as complicated as ever.49 This unexpected outcome left a feeling in Ken- tucky that Virginia, who had considered no rights of hers involved until the trouble had come up through another channel, was taking advantage of the situation to reap unearned and undeserved advantages.50 Thus, was the state thrown back on the mercies of the Supreme Court.
The court held the rehearing of the case of Green v. Biddle during the February term of 1823.51 Clay and Bibb at the instance of the state appeared for the defense. As Kentucky's position had not been argued in the first hearing, since the defendants had not been represented by counsel, Clay and Bibb now made a powerful effort to sway the court away from its former decision. Numerous arguments were brought forth, some of doubtful cogency, to show why Kentucky should be left alone in the management of her domestic land questions. It was argued that the compact, which was the source of the difficulties, was in fact illegal and void, and that, therefore, the plaintiff had no case. This was so because the Federal Constitution specifically stated that no state should make a compact or treaty without the consent of Congress. Congress had not consented to this Virginia-Kentucky compact, hence it was void. And not only that, but the compact was void for another reason: for it surrendered part of Kentucky's sovereignty to Virginia. And since sovereignty was "unalienable" the compact could not hold. The court answered that no method had been set down through which Congress should grant its consent to treaties between states, and that Congress by its consent to the admission of Kentucky into the Union had allowed the compact. As to the other objection on granting away sovereignty, one of the fundamental ideas in limited governments (and all the American states and the Nation were such) is that some of their sovereignty has been parted with. "If, then, the principle contended for be a sound one, we can only say that it is one of a most alarming nature, by which, it is believed, cannot be seriously entertained by any American statesman or jurist." The defense then carried the argument that Kentucky might not interfere with the lands within her own borders, to what they believed would be the logical conclusion, viz .: that Kentucky might not take her own land for public use unless the consent of Virginia were obtained. The court held that this reasoning was unsound, for Kentucky might use the well-established right of eminent domain for all such purposes. To the argument that the court could not declare the occupying claimant laws unconstitutional because the only objection to their validity was
47 MS. documents in the Clay MSS., owned by Miss Lucretia Clay of Lexington. 48 Niles' Register, Vol. 23, p. 256; Kentucky Gazette, May 1, 1823.
49 "Report of Commissioners of Kentucky, Henry Clay and John Rowan" in Journal of the Senate of Kentucky, 1823, pp. 31-33; Acts of Virginia, 1822-23, pp. 121, 122.
50 See Kentucky Gazette, May 1, 1823. 51 8 Wheaton 19-108.
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found in the state constitution (the compact was part of the state consti- tution), the court answered that it was sufficient to say that the laws in question were contrary to the Federal Constitution.52 The defense main- tained that the Supreme Court had no right at all to take notice of the case, for the compact declared that commissioners appointed by both states should settle disputes. To this the court replied that no such com- missioners had been provided 53 and that even if they had been, they could decide only such questions that might arise between the two states, and not between individuals as in the present case. This compact was a contract between the two states and must be carried out. "If the article of the compact, applicable to this case, meant anything, the claimant of land under Virginia had a right to appear in a Kentucky court, as he might have done in a Virginia court if the separation had not taken place, and to demand a trial of his right by the same principle of law which would have governed his case in the latter states." 54 These Kentucky laws, which change the rights and remedies of Virginians and all others concerned, were, therefore, clearly unconstitutional and void. The court mindful of its duty could not decide otherwise: "We hold ourselves . answerable to God, our consciences, and our country, to decide this ques- tion according to the dictates of our best judgment, be the consequences of the decision what they may." 55
A dissenting opinion was handed down by Justice Johnson. He could look with much sympathy on Kentucky's position, and he could discover that she was not wholly to blame for it. "It was thought and justly thought," he said, "that as the State of Virginia had pursued a course of legislation in settling the country, which had introduced such a state of confusion into the titles of landed property, as rendered it impossible for her to guarantee any specific tract to the individual, it was but fair and right that some security should be held out to him for the labor and expense bestowed in improving the country; and that where the success- ful claimant recovered his land, enhanced in value by the labors of an- other, it was but right that he should make compensation for the enhanced value." 56 Regardless of laws and their interpretation and fine-spun theories, he believed it to be incompatible with the American system for a state to be rendered helpless in its most vital powers: "I cannot admit that it was ever the intention of the framers of this constitution, or of the parties to this compact, or of the United States in sanctioning that compact, that Kentucky should be forever chained down to a state of helpless imbecility-embarrassed with a thousand minute discriminations drawn from the common law, refinements on mense profits, set-offs, &c., appropriate to a state of society, and a state of property, having no analogy to the actual state of things in Kentucky-and yet, no power on earth existing to repeal or to alter, or to effect those accommodations to the ever-varying state of human things, which the necessities or improve- ments of society may require." 57
A long petition of protest was formulated by Clay and Rowan against the court's decision. They threw away technicalities and presented Ken- tucky's case anew from the standpoint of common sense and equity. If the court's construction of the compact was sound and permanent, it was asked, "most respectfully, if the fact will not turn out to be, that Virginia has smuggled Kentucky into the Union, in the character of an independent state, while, in reality, she retains her as a colony." It was
52 8 Wheaton 85-90.
53 Virginia had refused to adopt the Clay-Leigh Agreement, which would have set up such a board of commissioners. 54 8 Wheaton 84. See also Kentucky Gazette, May 9, 1822.
55 Ibid., 93. See also Niles' Register, Vol. 24, p. 3.
56 8 Wheaton 102. 57 Ibid., 104.
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not reasonable to expect a state to allow its land system to be dominated by another state. "No state that possessed the power of legislation over its soil, could or ought to submit long, to tenures of it, unassociated with cultivation. The desolating effects of the numerous times of that sort in Kentucky have greatly retarded its agricultural advancement, and would, but for the benign effect of its occupying claimant laws, have thrown it behind its just destinies at least twenty years. The state could not have got along without them." 58
Governor Adair took a strong and aggressive position in his message to the Legislature (November 4. 1823), against the Supreme Court. That body, he said, had declared the occupying claimant laws unconstitutional, "on which so much, both in principle and property, depended, and in which we very properly took so great an interest, and, notwithstanding the provision in the compact with Virginia, that, in the event of a dispute concerning the meaning or execution of the instrument, that the same should be referred to a tribunal therein provided for, and, notwithstand- ing Virginia had long acquiesced in our interpretation and execution of its stipulations, she refused to constitute the tribunal and make the reference, yet that court took cognizance of the compact between the states, as they would have done of a contract between private persons, and, by misunder- standing its meaning (which had been fully proved by our distinguished and patriotic counsel, and also further illustrated in the same view by an eminent citizen), and by disregarding what has been esteemed the well settled distinction between right and remedy, declared the whole of our claimant laws contrary to the compact and void." He then used menacing language that could be interpreted in no other way than as counselling armed opposition to the Federal Government, if it wished to carry the argument so far. He said: "I need not be told that the general govern- ment is authorized to use physical force to put down insurrection and enforce the execution of its laws; I know it, but I know too, with equal certainty, that the day, when the government shall be compelled to re- sort to the bayonet to compel a state to submit to its laws, will not long precede an event of all others to be deprecated." The results of the court's decision in producing litigation and distress among the people, he would leave to the Legislature to imagine; but this was not the worst effect that might come nor the one most to be apprehended. The prin- ciples set up must produce results which "sink much deeper and would produce infinitely more permanent evils." "They strike at the sovereignty of the state, and the right of the people to govern themselves. It is in this view that they have been contemplated and justly excited the appre- hensions of the most intelligent and sober minded members of the com- munity, and in this view the subject is committed to your most solemn consideration. In your wisdom the remedy is expected to be devised.
* * I may fairly hope then, that, on this highly important subject, as well as all others that may come before you, you will act with the cool, dispassionate, manly deliberation which will always be found the surest. as well as the shortest, road to a correct decision." 59
The governor's message immediately became the subject of attack and applause. He had transgressed in his suggested opposition to the Federal Government the limits beyond which many Kentuckians would
58 "Remonstrance to Congress," Hause Document, No. 69, 18 Cong. 1 Sess., 42, 44. The anomalous situation of Kentucky not being master of her own land affairs, is seen in two petitions, one in 1824 and the other in 1830, calling on Virginia for lands to satisfy certain old claims-the lands to be located in Ken- tucky. Robertson, Early Petitians, 180-188. The same difficulty is brought out in a petition in 1834. See American State Papers, Public Lands, VII, 319. 59 Niles' Register, Vol. 25, pp. 204, 205; States Documents on Federal Rela- tions: The States and the United States (Philadelphia, 1906), Edited by Herman V. Ames, 106; Journal of the Senate of Kentucky 1823, 10-12.
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not follow him. The debate was precipitated by a eulogy of the gover- nor's message and a resolution of thanks to him. Some of the staunchest supporters of the administration believed that precipitate haste was being made to force through the eulogistic resolution. Rowan said that he would have preferred that the resolution had not been introduced; but, nevertheless, on a test he could not desert the governor. He recalled the Revolutionary services of Adair, and believed that he deserved thanks for warning his fellow-citizens of judicial encroachments. He certainly could not have admired the governor had he in this message "humbly recommended a second petition to the supreme court, like a degraded province of Rome, for a rehearing before a tribunal from which we had been repelled." Pope, while agreeing in general with the Governor's stand, would not press the matter immediately. The opposition strongly depre- cated the unfortunate and menacing stand the governor had taken. The Supreme Court was an enlightened and able tribunal elevated above local feeling, and although all Kentuckians regretted its decision on the occupy- ing claimant laws, still people should not wish to unhinge the Federal Government in unreasoning opposition to it. The governor's allusion to the possible dissolution of the Union should not have been made. Ex-Govern- or Slaughter declared he would oppose any resolution of thanks to Gov- ernor Adair; and Robert Wickliffe said that he would never be found guilty of thanking a public officer for doing his duty. He wanted to know whether there was any danger of an insurrection in Kentucky. If the Supreme Court had made a mistake, it was no business of the governor's to tell the Legislature. John Rowan replied that the court's decision was the essence of slavery, for what was slavery but the compulsion to labor for others. He did not look to physical force as a remedy, but such pre- cedents were not unknown in history. A resolution was then laid on the table declaring that the general assembly, "considering that the final opinion of the court, no less exceptionable, is even more irreconcilable and alarming than the first, since the court, having retreated from the constitution of Kentucky, have fortified themselves with that of the United States, whence all hope of self-relief is placed beyond our reach, were we even disposed to change our own constitution, considering that, by this succession of untoward occurrences, Kentucky has been thrown into a situation of serious embarrassment; and that now, reduced to the alternative of submission or resistance, she will only consider the options which the latter present to her choice, in its various modes of redress ; and considering that the mildest course, which combines with the prob- ability of success, is the most eligible;" should appoint a committee to draw up a protest to Congress. These same sentiments clothed in concise words were later adopted in a set of resolutions on December 29, (1823).
Very direct language was used in the preamble, summing up the situa- tion : "But why, it may be asked, were not the States, upon the formation of the Constitution of the United States, melted down and their existence abolished, if the doctrine be correct, that they cannot suit their remedial system, by varying it, to the varied condition of society. If one unaltered and unalterable system of laws was destined to regulate in perpetuity, the concerns of the people of the republics of America, *
* * why the afflicting expenses of sustaining twenty-four States, with the legis- lative, judiciary and executive machineries of sovereignty? Why, under this hypothesis, are they taunted with the mock-lineaments, contexture and aspects of sovereignty, when in very deed, they are dwarf vassals? Are the principles of Montesque vapid and illusory, and were the patriots who achieved the independence of the American States, and formed their respective constitutions and that of the United States, de- luded into the erroneous belief that those principles were correct and had been verified by the experience of ages?" The Legislature "most
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solemnly" protested against "the erroneous, injurious, and degrading doctrines of the opinion of the Supreme Court of the United States," pronounced in the case of Green v. Biddle. And in order to escape "the oppression and degradation inflicted by the opinion upon the State of Kentucky," it was resolved to present to Congress "a temperate but firm remonstrance" against these doctrines and "to call upon the nation to guarantee to the State its co-equal sovereignty with the States which compose the Union" and to request Congress to so organize the Supreme Court "that no constitutional question growing out of the Constitution of the United States, or the constitution of either of the States, involving the validity of State laws, shall [not] be decided by said Court unless two-thirds of all the members belonging to said Court shall concur in said decision." 60
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