USA > Kentucky > History of Kentucky, Volume II > Part 16
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The remonstrance was drawn up and adopted on January 7, 1824.61 In the outset, Kentucky declared that although she had not been a party to the suit in the case of Green v. Biddle, and could not have been, still she had the right to interfere and question the decision of the Supreme Court "because that Court has, in that case, most afflictingly interfered with the great and essential rights of the State of Kentucky." The de- cision of the court, it was declared, disfranchised the State of Kentucky and relegated her to an inferior position in the Union of what were designed to be equal members. "That Court has, in that decision, denied to the State of Kentucky the power of legislating, even remedially, in re- lation to the territory she acknowledgely possesses; territory over which neither the Congress nor any state in the Union can legislate, and sub- . jected her to the code of laws, in relation both to right and remedy, which existed in Virginia at the date of the compact." Indeed, the court had defeated the very purpose Kentucky had in separating from Virginia. The court seemed to think that in the compact of separation Kentucky "renounced forever * * * the right of self-government, and the independence at which she arrived."-nay. even worse, to "produce a result which neither of the parties contemplated, and both deprecated ; a result infinitely less desirable to the people of Kentucky, than the posture from which it was their avowed object, in forming the compact to escape. * Yet the court has fastened upon the people of Kentucky, the very code which, on account of its inaptitude to their condition, they had intended by the compact to avoid, and have by their construction of that compact, denied them the very faculty with which it was the purpose of that instrument to invest them; the faculty of from time to time enact- ing laws for themselves, as their varied conditions and wants might indicate the necessity or expedience of doing so." It was contrary to the spirit of the Federal Constitution that a state's power to legislate over its own soil should be taken away. The tenth amendment to that instru- ment clearly stated "that the powers not delegated (therein) to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The actual pecuniary injury inflicted by the decision was the least of the evils apprehended. "It is the principle which that decision establishes at which they shudder, and with which they can never be reconciled. The people of Kentucky, tutored in the school of adversity, can bear, and with patience, too, the frowns of destiny, and all the adverse occurrences to which communities are liable ; they can bear anything but degradation and disfranchisement; they value
60 Acts of Kentucky, 1823, pp. 488-516; Journals of the Senate of Kentucky, 1823, pp. 189-220; Ames, State Documents on Federal Relations, 107, 108. For maneuvers in the legislature and different sets of resolutions offered see also, Niles' Register, Vol. 25, pp. 206, 207, 261, 275.
61 Acts of Kentucky, 1823, PP. 520-527; Journals of the Senate of Kentucky, 1823, pp. 288-297; "Remonstrance to Congress," House Document, No. 69, 18 Cong. I Sess .; Ames, State Documents on Federal Relations, 108-111.
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their freedom above every thing else, and are as little inclined to be reasoned out of it, as they would be to surrender it to a foreign force." It was an established principle of freedom "that the people who compose the society should enact the laws which the society needs. The posses- sion or the destitution of that power constitutes the mighty difference which exists between freedom and slavery."
After all the question of being deprived of liberty was not changed by the identity of the agent which would do it. Should there, ought there to be drawn a distinction between the Federal Government attempting to raid the state of its liberties and a foreign government seeking to do the same thing? "If the same privative effects were attempted to be pro- duced upon the individual and political rights of the people of Kentucky, by a foreign armed force, and they were not to repel it at every hazard. they would be denounced as a degenerate race, unworthy of their patriotic sires, who assisted in achieving the American Independence ; as a people unworthy of enjoying the freedom they possessed. In that case the United States, too, would be bound, at whatever hazard, to vindicate the right of the people of Kentucky to legislate over the territory of their States ; to guarantee to them a republican form of government, which in- cludes the right insisted on. And can it make any difference with the people of Kentucky, whether they are deprived of the right of regulating by law the territory which they inhabit, and the soil which they cultivate, by the Duke de Angouleme at the head of a French army, 62 or by the erroneous construction of three of the Judges of the Supreme Court of the United States? To them the privation of political and individual rights would be the same. In both instances they would have lost the power essential to freedom, to the right of self-government. In the former case their conscious humiliation would be less than in the latter. in proportion to the sturdiness of the resistance they would feel conscious of having made, and in proportion to the hope they might entertain of emancipating themselves by some happy effort of valor, and thereby re- gaining their rights; but in the latter case the tyrant code to which Ken- tucky is subjected by that decision, is inaccessible, perpetual, and in- capable of being changed, beneficially or suitably, to the condition of Kentucky, by any power beneath the sun."
The most important part of this appeal, the part that looked toward tangible results, concerned the reorganization of the Supreme Court. As it actually happened, there had been only four out of the seven judges of the court in attendance when the decision in Green v. Biddle was handed down and only three agreed with the decision. It was, therefore, true, as Kentucky had so bitterly complained, that it had not been a majority of the court that had declared the occupying claimant laws unconstitutional. It was said in the remonstrance, "The decision was given by three, a minority of the judges who composed that tribunal. There was a fourth judge on the bench; he dissented. Had the third agreed with the fourth, Kentucky had not been disfranchised; so that, in that particular case, the political destiny of a state was decided by a solitary judge. Can this ap- peal to the Congress, by the State of Kentucky, upon a subject in which she is so vitally interested, be unavailing? And has not the State a right to expect that her co-equal sovereignty with the other States of the Union be guaranteed to her by that body? Has she not a right to expect that the Congress will, either by passing a law requiring, when any question shall come before that tribunal involving the validity of a law of any of the States, that a concurrence of at least two-thirds of all the judges shall be necessary to its vacation ; or increasing the number of the judges, and thereby multiplying the chances of the States to escape the like
62 The Duke de Angouleme was the general who had commanded the French army that invaded Spain in 1823, at the behest of the Holy Alliance.
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calamities, and of this state to escape from its present thraldom, by ex- citing the exercise of more deliberation and an increased volume of in- tellect upon all such questions."
Congress gave some passing notice to this appeal and remonstrance. The senate committee on the judiciary was instructed to inquire into the expediency of making the change in the court demanded by Kentucky, and due largely to the support of Van Buren a bill was reported out. The question was now debated at considerable length in both the Senate and the House. However, the bill was not passed.63
The failure to gain redress in Congress, did not prevent the Court of Appeals from disregarding the Supreme Court's decision. In the case of Bodley v. Gaither, it held that occupying claimant laws were con- stitutional notwithstanding the Supreme Court's decision to the contrary, because that decision was given by less than a majority composing the court. This led the National Intelligencer to remark: "If this decision be law, we shall have a goodly number of the decisions of the supreme court overturned. Up to this time, a majority of the judges has been supposed to constitute a quorum of the supreme court, and a majority of those present have been considered competent to pronounce a judgment on any question argued before them." 64 On the meeting of the Legisla- ture in 1824, the question of reorganizing the Supreme Court was taken up again and debated with much heat. A set of resolutions was adopted on January 12, 1825, in which the court was severely condemned again, and Congress was reminded that she had not acted on the demands of the state made the preceding year. Congress might also realize that this was not "a temporary agitation in the public mind, and a rebellious spirit in the General Assembly. * * * " It would also have the country in general understand that Kentuckians "view the reports sent abroad, of their readiness to acquiesce in principles so monstrous, as groundless calumnies upon the state character, and upon the patriotism and firmness of the people, and calculated to aid in the prostration of state sovereignty the main pillar of the Federal Union and American liberty." 65 Another effort was made in Congress to pass the measure, but nothing was ac- complished.66
Numerous Kentuckians were now fast losing patience with the dila- tory course of the Federal Government in redressing their grievances. Besides their various troubles with that authority over banks, execution laws, and courts, they were now in the very midst of their heated internal struggle over their own judiciary. In every direction they saw their authority set at naught. Governor Desha headed this discontent. In his message to the Legislature in November, (1825), he precipitated a crisis not only in internal affairs but also in federal relations. He boldly declared that "Since the last session of the general assembly there have arisen new causes of alarm and agitation which demand your immediate and serious attention." The bank was again assailed as a foreign des- potism, in collusion with and supported by the Federal courts, running roughshod over Kentucky's rights. In this the governor was only voicing the sentiments of many of his fellow-citizens. A pamphlet of the day said : "By what right in this free country, has the court undertaken to give immunities to a corporation of stockholders, which are prerogatives allowed only in Europe, enslaved as she is, to her potentates and nobility ? By the same right by which it has robbed us of the power of legislating for our own soil, the dearest and most essential attribute of sovereignty
63 Annals of Congress, 1823-4, I, Part I, pp. 290, 1428, 2514, 2618; Senate Journal, 1823, PP. 30, 31 ; Ibid., 1824, pp. 229, 232; Butler, History of Kentucky, 266-279.
64 Quoted in Niles' Register, Vol. 29, p. 245.
65 Acts of Kentucky, 1824, pp. 281, 282.
66 Annals of Congress, 1824-5, PP. 365-370.
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-the right which it has assumed of giving constitutions according to its views of political expediency, or rather its own political purposes. To this power Kentucky has yet to bow her neck." 67 Governor Desha de- clared these two institutions "for a series of years, have carried on a systematic attack upon the legislative power of the state, for the double purpose of curtailing the sphere of its exercise, and rendering them- selves wholly independent of its authority."
The wrongs done the state by the Supreme Court's decision had not been redressed despite the numerous efforts of the Legislature. In the meantime the state was reaping the baneful effects of that decision. "At every term of the Federal Court, held in this town," he said, "numerous judgments and decrees are obtained against our peaceful citizens, for the lands and houses which they have honestly purchased, built and in- proved ; and orders given for their execution contrary to our laws. Our limitation acts are also wholly disregarded, and the non-resident land holder or domestic speculator, who has, perhaps, never paid the first shill- ing of his just taxes, for the support of our government, is permitted to progress with his action against the honest citizen for lands which he has purchased with his money, improved by his labor, defended with his arms, and paid taxes upon to his government. This is not all. The faith- ful citizen who has thus performed every moral, social and civil duty, is, upon eviction, charged with rents upon improvements himself has made, and if he cannot pay them, is subject to imprisonment, under the rules of court. And thus does this commonwealth suffer those who have im- proved, supported and defended her, to be stripped of the proceeds of their life's labor, and made the unpitied victims of heartless- speculation and assumed power. It is my firm belief, that the insecurity now felt by numberless cultivators of our soil, may be found the chief cause of that extensive emigration which is now thinning the population of some of the finest sections of our state. The delay in obtaining redress for our wrongs, and the portentous indications of the times, sickens hope, and drive our industrious citizens, unwillingly, to seek peaceful homes in other states, where they may set under their own vine and fig tree, exempt from the evils which fill the mind of the Kentucky farmer with anxiety and apprehension."
It was preposterous that the oppressor should be sole judge of the limits of the oppressions he might inflict. His authority should be re- sisted. "When the general government encroaches upon the rights of the state, it is safe principle to admit that a portion of the encroaching power shall have the right to determine finally whether an encroachment has been made or not? In fact, most of the encroachments made by the general government, flow through the Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the states when the usurpers of their rights are made their judges? Just as much as individuals as judged by their oppressors. It is, therefore, believed to be the right, as it may hereafter become the duty of the state governments, to protect themselves from encroachments, and their citizens from oppression, by refusing obedience to the unconstitutional mandates of the Federal judges." He would not be understood as expressing a want of confidence in the general govern- ment ; the complaint did not rest in the system but springs "solely from the erroneously constructions of the public functionaries who are selected to carry it into effect. * * * Reformation is all that Kentucky asks, and without it she cannot be satisfied. In the meantime, no respect for the general government ought to induce the state to become the silent instrument of her own degradation. While, therefore, our grievances are laid before congress, and considered by that body, I would recommend
67 Lafayette to the People, 8.
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to your consideration whether the rights and honor of the state do not require that she shall prohibit the use of her jails for the purpose of im- prisoning debtors under an authority unknown to her laws and constitu- tion." 68
This message seemed to take the Legislature somewhat by surprise. They had not considered conditions so serious and were apparently still unconvinced. A set of resolutions passed by the House by a considerable majority stated that no new causes of alarm and agitation, known to the House, had arisen since the last session of the Legislature. Detailed and varied specifications of the charges by the governor were then called for. Information was especially desired upon the activities of the United States branch banks, as to their dealing in real estate, influencing elec- tions, escaping taxation, and other subjects of similar import. The governor was also requested to inform the House "of the mode deemed most advisable in the opinion of the executive, to refuse obedience to the decisions and mandates of the supreme court of the United States, considered erroneous and unconstitutional, and whether, in the opinion of the executive, it may be advisable to call forth the physical power of the state, to resist the execution of the decisions of the court, or in what manner the mandates of said court should be met by disobedience." 69 When it came to a test in actually opposing the Federal Government by other means than verbal weapons, the governor was loath to act. He advised a further appeal to Congress.70
With the gradual approach of better times, Kentucky began to forget much of her hostility to the United States Bank. In 1825, an Eastern critic of Desha's message to the Legislature observed, "Governor Desha, in his late Message to the Legislature of this state, has denounced the bank of the United States, and recommended the adoption of measures to drive away its branches 'located in Kentucky'. The Governor, prob- ably, has never heard of the decisions of the Supreme Court on this sub- ject. It is not be presumed that he would advise resistance to the judg- ment of that tribunal within its acknowledged jurisdiction. Prejudice against the National Bank has disappeared on this side of the Allegheny; it is time that alarms so idle as those sounded by Governor Desha, should no longer be heard on the other." 71 In 1833, there were more stock- holders in the United States Bank in Kentucky than from any other Western state.72
This bold flare-up in federal relations was destined to subside as quickly as it had arisen. A decision of the Supreme Court handed down in 1831, greatly eased the situation and soothed Kentucky's feelings. In the case of John Hawkins and William May v. Joshua Barney's Lessees, the court decided that a seven years' limitation law of Kentucky was not against the compact with Virginia. This was a law passed twenty years after Kentucky had entered the Union, declaring that no claims for land could be instituted against an occupant in the courts after he had been in peaceable possession of it for seven years. Occasion was taken in this
68 Text of message in Niles' Register, Vol. 29, pp. 219-224; Journal of the House of Representatives of Kentucky, 1825, p. 7 et seq.
69 Niles' Register, Vol. 29, pp. 228, 229.
70 Niles' Register, Vol. 29, p. 292; Journals of the House of Representatives of Kentucky, 1825, p. 318. 71 Port Folio, Vol. 18, p. 505.
72 The holdings in the Western states were as follows:
Kentucky 22 stockholders, 252 shares
Louisiana 17 stockholders, 119 shares
Tennessee 5 stockholders, 258 shares Ohio .14 stockholders, 556 shares Indiana 2 stockholders, 50 shares
Illinois 2 stockholders, 167 shares
American Almanac, 1833, P. 141.
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decision to say many things that were calculated to sound good to the Kentuckians, who had felt so aggrieved at the former decisions of the court. Justice Johnson, who had dissented in the case of Green v. Biddle, delivered the unanimous opinion of the court.73 Kentucky's right to pass the limitation acts was strongly asserted : "What right has anyone to com- plain, when a reasonable time has been given him, if he has not been vigilant in asserting his rights? All the reasonable purposes of justice are subserved, if the courts of a state have been left open to the prosecu- tion of suits for such a time as may reasonably raise a presumption in the occupier of the soil that the fruits of his labor are effectually secured beyond the chance of litigation." He declared that it was "impossible to take any reasonable exception to the course of legislation pursued by Kentucky on this subject." In fact the very limitation law of Virginia, itself, was adopted by Kentucky, and that not until twenty years had elapsed, during which time there was no hindrance at all upon claimants. Kentuckians read with pleasure this part of the decision: "It can scarce- ly be supposed that Kentucky would have consented to accept a limited and crippled sovereignty ; nor is it doing justice to Virginia to believe that she would have wished to reduce Kentucky to a state of vassalage. Yet it would be difficult, if the literal and rigid construction necessary to ex- clude her from passing this law were to be adopted; it would be difficult. I say, to assign her a position higher than that of a dependent on Vir- ginia. Let the language of the compact be literally applied, and we have the anomaly presented of a sovereign State governed by the laws of another sovereign; of one-half the territory of a sovereign State hope- lessly and forever subjected to the laws of another State. Or a motley multiform administration of laws, under which A would be subject to one class of laws, because holding under a Virginia grant, while B, his nextdoor neighbor, claiming from Kentucky, would hardly be conscious of living under the same government." 74
There was much jubilation over the state at Kentucky's final victory. Charles A. Wickliffe, who appeared before the court, was given much credit for the outcome. The Globe (Washington, D. C.) was led to re- mark by the decision, "The old settlers of the country watched out their day, in guarding against the Indians. Those who immediately followed them, had a much more hopeless business, in contending with the land- jobbing lawyers." 75 There can be no question that Kentucky was sorely beset during this trying period of her existence. Her domestic difficulties were sufficiently plentiful to keep the people in a state of passionate agita- tion. The activities and interferences of the Federal Government, thus came at an unfortunate time. The occupying claimant laws concerned the very life and prosperity of the state. There was much reason for the people to feel that their very existence as a social unit was in jeopardy. The Supreme Court sternly declared the law untempered with sympathy and equity. In its later decision it departed from a "literal and rigid construction" of the compact and took into consideration the actual con- ditions in the state and how they would be affected by such a construc- tion. Kentucky, jealous of her right to the mastery of her own house- hold, declared her purpose of doing things which she had no intentions of doing when the test came. She wished only equality with the other members of the Union, and when it seemed this was assured her, she was quick to forget her threats and forgive. Her fundamental attachment to the Federal Government and the Union was never shaken, and when a few years later the crisis of nullification threatened the stability of the Union, there was no stauncher supporter of the Federal Government than Kentucky.
78 5 Peters 457-469.
74 5 Peters 466, 467.
75 Quoted in Argus, March 2, 1831.
CHAPTER LII THE RISE OF NATIONAL PARTIES IN STATE POLITICS: CLAY AND JACKSON
On national issues Kentuckians had always stood well together. Their democracy, a democracy of fact rather than of theory, had welded them into a unit in favor of Jeffersonian principles, and they had always loyally supported the party which had adopted those principles. The federalist party had never had a respectable following here for any con- siderable length of time. In fact, the charge of federalism, if successfully supported, against a person was likely to terminate his political career. But in state affairs such opposition leaders as Humphrey Marshall, more federalist than democrat, by taking advantage of the various mistakes of the dominant democrats and profiting from the distempers of the times, were often able to hold power for short intervals. And although they sometimes succeeded in being elected to Congress, the State always cast its electoral vote for the Jeffersonian democrats.
After the War of 1812, federalism throughout the nation declined rapidly. The party had made an unenviable record in the war, and with such burdens to carry as the stigma of the Hartford Convention, it soon ceased to be of any consequence. In the election of 1816, its candi- date, Rufus King, received only thirty-four votes to Monroe's 183. There then ensued what was erroneously termed the "Era of Good Feel- ing," which Monroe consciously aided by his so-called "amalgamation policy" of appointing federalists as well as his own supporters to office. But as one party, even then as now, could never be large enough to in- clude permanently all shades of political opinion, the "Era of Good Feel- ing" soon expressed itself more clearly as an era of bitter personal ani- mosities and factional strife. Many lines of cleavage soon arose, with Henry Clay early taking positions on the questions of the day antagonistic to the President. The struggle for liberty that was being waged by the Spanish colonies in South and Central America strongly appealed to Clay, and freed from the responsibilities in the situation, he boldly argued for a repeal of the neutrality act, recently enacted, and for 'a recognition of the independence of the various revolutionary governments. The ad- ministration was slow to move in recognition or in giving too liberal an interpretation to the duties of neutrality, for it could not afford to antagonize Spain, as negotiations were in progress for the purchase of Florida and for clearing up other long-standing problems with that nation. Another point on which Clay opposed the administration and thereby produced consequences of far-reaching importance was Jackson's invasions of Florida in 1818. Jackson had been ordered to punish the Seminoles, but apparently without permission to cross the line into Florida.1 With his characteristic impetuosity, he not only crossed into Florida and thereby endangered Spanish relations, but also by hanging Arbuthnot and shooting Ambrister, two British subjects whom he cap- tured and tried as spys, might have embroiled the United States with
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