USA > Kentucky > History of Kentucky, Volume II > Part 9
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/ This period of hard times and relief remedies agitated the state to its very center. Questions arose which called not for mere theoretical dis- cussion ; they concerned vitally every person in the state who was either creditor or debtor. Private property was at stake, the accumulations of a lifetime. There was no wonder then that two parties should arise, in- tensely hostile and aggressive. Relief meant the salvation of the debtor, but the ruination of the creditor. It was only natural that the more con- servative people, who had steered away from the orgy of speculation and consequent debts, and the more fortunate who had emerged as creditors through chance or sharp practices, should band together in solid opposition to measures which meant ruin to themselves. The debtors for like rea- sons-and they were a majority of the people-would use every agency in their power to secure relief from their improvidence and misfortune. The state thus found itself arrayed in two new divisions based on new principles and conditions, commonly known as the Relief and Anti-Relief parties. The former was led by such men as Rowan, Barry, Bibb, Kendall, Sharp, Desha, and Adair, men of great ability who were yet to win many honors in state and nation,-the first three of whom were characterized by a critic of the times as "men of Talent" and by repute "irredeemably Insolent." The leaders of the Anti-Relief party were such men as George Wickliffe, Ben Hardin, George Robinson, John J. Critten- den, Flournoy, Green, John Pope, and John J. Marshall, also men of renown present and future and according to the same critics, "men of in- tegrity, talent and patriotism." 66 With two parties led by two groups of men equally talented and aggressive, and with the clevage based on principles so fundamental and vital as those embraced in the relief sys- tem, the state was destined to go through with a contest which at times approached Civil war and threatened the very organization of society itself.
64 Liberty Saved (A contemporary pamphlet, propaganda for relief), 8.
65 Message of November 7, 1825 in Niles' Register, Vol. 29, p. 221.
60 Letters on the Conditions of Kentucky in 1825 (Reprinted from the Richmond Enquirer; author unknown; edited by E. G. Swem, 1916), 10, 11. See also Doolan, "Old Court-New Court Controversy" in Green Bag, XI, 184; Lafayette to the People, 9, 10.
CHAPTER L THE STRUGGLE AGAINST THE JUDICIARY-OLD COURT AND NEW COURT
Doubt had been felt by some from the time when the replevin laws were first introduced in the Legislature that they were unconstitutional. Their direct intention was to make the remedy more difficult for carry- ing out the obligations of a contract, and their practical result was to satisfy and cancel debts with actually a less value than was stipulated in the contract. And it was not infrequent that through the mutations of time and fortune the contract was never carried out at all. The whole relief system was indeed questioned and challenged, but the Bank of the Commonwealth, as before noted, was able to finally win out on the point of constitutionality in the United States Supreme Court; however not without many people disagreeing.1 A case involving the replevin laws soon arose in the state courts. One Williams brought suit against one Blair in the Bourbon County Circuit Court to force the payment of $219.671/2 immediately, instead of waiting the two years allowed by the replevin law. The plaintiff claimed that the two years' stay of execution was in violation of the Constitution of the United States as well as of the State of Kentucky, and was, therefore, null and void. Judge James Clark who occupied the bench at this time, delivered the opinion. He pro- ceeded with much hesitancy and diffidence mindful of the "heavy re- sponsibility he must incur"; but it was clearly his duty to dispose of the points involved, even to the extent of judging of the constitutionality of acts of the Legislature. He cited the clause in the Federal Constitution which declared that no state should have the right of making a law "impairing the obligation of contracts," and said that the states in accept- ing the Constitution had agreed to that provision. Not only had Ken- tucky accepted this principle by her entry into the Union, but she had specifically incorporated it in her own constitution by stating that "no ex post facto law, nor any law impairing contracts, shall be made." 2 He then stated the principle of law, which has since become well-estab- lished, "that a law to release one party without the consent of the other, in whole or in part, from the payment of a sum of money which he has stipulated to pay, or a law to change the day of payment to a shorter, or a more distant day, would impair the obligation of the contract. It is equally clear that if one party, without the consent of the other, is per- mitted to do the thing in a different manner, or at a different time from that agreed upon, and thereby mitigate at his own will and pleasure the terms of the contract, the obligation is not preserved." With equally con- vincing argument Judge Clark dealt with other points involved. He stated, in closing his decision. "The opinion I have expressed on this
1 George Robertson, for many years chief justice of the Court of Appeals of Kentucky, said, "There is much reason for doubting the correctness of these de- cisions by the national judiciary-and, if they be maintained, there is good cause for apprehending that the beneficent policy of the interdiction of State bills of credit may be entirely frustrated, and the constitutional prohibition altogether para- lysed or eluded." "Sketch of the Court of Appeals" in Collins, History of Kentucky, I, 495.
2 Art. 10, sec. 18.
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subject, I am aware, is different from that entertained by some of the most intelligent and patriotic citizens of this state," but he felt it was his duty to interpret the laws and the constitution as he understood them.3
This decision had an electrical effect on the relief supporters. They were chagrined and alarmed-chagrined because a mere circuit court judge had interposed his supposed authority against the will of the people expressed in their legislature, alarmed because it pointed to a branch of the government which was beyond their reach in elections and which might seek to completely undo the relief laws. Judge Clark would be made to answer at the first opportunity for his bold course which smacked almost of impertinence. As it happened a special session of the Legislature was called for May, 1822, for the purpose of re-arranging the congressional districts of the state preparatory to the addition of two additional representatives in Congress, and action could, thus, be taken six months earlier than ordinarily. Soon after the Legislature met a resolution was introduced, stating that as Judge Clark had "given a de- cision in contravention of the laws of this commonwealth, called the endorsement and replevin laws, and therein has grossly transcended his judicial authority and disregarded the constitutional powers of the legislature of this commonwealth: Therefore,
"Resolved, That a committee be appointed to inquire into the decision of the said judge, and report thereon to this house." + Three days later the committee reported that "The principles and doctrines assumed in this opinion are, in the opinion of your committee, incompatible with the constitutional powers of the legislative department of this govern- ment, subversive of the best interests of the people, and calculated in their consequences to disturb the tranquillity of the country, and to shake public confidence in their institutions and measures of the government, called for by the condition and the necessities of the people." Sensing the danger of a rising judicial tyranny, it stated that it was not prepared to admit "That the judicial department has a power, beyond control, to defeat the general policy of the state, deliberately adopted by the repre- sentatives of the people." As a remedy it recommended the following resolution : "Resolved by the general assembly of the commonwealth of Kentucky, (two-thirds of each branch thereof concurring), that the Hon. James Clark, one of the circuit judges of this commonwealth, ought to be removed from office. *
* By a vote of sixty-three to thirty- two an order was issued citing Judge Clark to appear before the bar of the House and show cause why he should not be dismissed. Shortly thereafter, instead of appearing in person, Clark sent an extended letter justifying his course.5
Clark's defense was scholarly and convincing. He boldly, at the out- set, took a strong position, absolutely eschewing any truckling excuses or mitigating circumstances. He said his decision had been given "after the most mature deliberation which I was able to bestow, and from a firm conviction of the correctness of the principles there mentioned ; and I must have been not only faithless to my own conscience, but to the Constitution of the United States and the dignity due to the judicial office, had I expressed any other opinion, under the conviction I had upon the subject." He then entered into a long discussion of the right of a judge to declare a law unconstitutional, reasoning not only from logic, but also quoting the more direct statement from the Kentucky
3 This was the case of Williams v. Blair, which is given in full in Niles' Register, Vol. 23, Supplement, pp. 153-155.
4 Niles' Register, Vol. 23, Supplement, p. 155.
5 "Response of Judge James Clark, to the charges exhibited against him in the house of representatives, at their extra session in May, 1822" in Niles' Register, Vol. 23, Supplement, pp. 156-160.
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constitution : "To guard against the transgression of these high powers, which we have delegated, we declare that every thing in this article [bill of rights in Article ten] is excepted out of the powers of the general government, and shall ever remain inviolate; and that all laws contrary thereto, or contrary to this constitution, shall be void." Not only had the Federal judges declared laws of Congress unconstitutional in numer- ous instances, but the judges of the Kentucky courts had judged like- wise laws of the Legislature. "I may here ask why it is," he continued, "if, since the organization of our government few years have elapsed without some of the laws passed by the Legislature being declared un- constitutional, no instance is to be found in which the general assembly have been asked by any member to exercise this power of removing a judge from office, for their judicial encroachment, as it is now termed? Have our statesmen, heretofore, been less vigilant, less wise, and less devoted to the interests of our country, than those of the present day? Shall those men who assisted in forming our constitutions, those whom we have heretofore boasted of as the pride of our state, and patterns for emulation, be cast in the shade by the doctrines advanced by this occa- sion?" It had not only, then, been a common practice among the judges of the Court of Appeals of the state to declare acts of the Legislature unconstitutional and, therefore, null and void, but it had been equally common among the judges of the inferior courts. And even more than that, the very replevin laws, themselves, had been held unconstitutional, so that if the Legislature wished to "make an example of the first judge who dared to differ from them in opinion," it might take cognizance of a decision of Judge Booker in the Hardin County Circuit Court in 1821, or of Judge Oldham in the Jefferson County Circuit Court of the same year, or even of Judge Broadnax in the Union County Circuit Court. "Those decisions have not only been given on a branch of the same system of laws," he declared, "but upon a different section of the same law brought before me in the case I decided. These decisions were publicly given, have been generally known, and the records containing them, seen by many. I cannot, therefore, persuade myself that I am to be made the first victim, for pursuing doctrines so long in use, so matured by experience, and so entirely incorporated in our constitutions and in the political and judicial histories of our country." There was no hinting at corruption or arraigning of motives, and if it was to be a case of running a race of opinions, Judge Clark gave a timely and prophetic warning that "If for a difference of opinions between the general assembly and the judges, where there motives cannot be im- peached, they are to be removed from office, is it not to be apprehended that they will, in future times, become the subservient creatures of the predominant party in the general assembly, and their decisions upon con- stitutional law become as fluctuating and changeable as the verying temper of the times?"
A lively debate arose after the reading of Clark's defense, which occupied the whole day. The Judge's defenders not only reiterated and amplified the doctrines and arguments he had expounded but also used with strong effect the point that the opinion of the judge of a Circuit Court could not be final, and that in the present instance the case had already been appealed to the Court of Appeals where the final disposition would have to rest. The resolution to present an address to the governor for his removal was then voted upon. It resulted in fifty-nine being in favor of removing Clark with thirty-five opposed. As the required two- thirds was lacking the resolution failed. It was said that a majority in the senate were against his removal. The removal of a judge by address (requiring a two-thirds majority of both houses) was a constitutional method of getting rid of a judge "for any reasonable cause which shall
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not be sufficient cause for impeachment," and had won the hearty praise and support of the Virginia statesman, John Taylor of Carolina. It was not a settled principle as to what a "reasonable cause" insufficient for impeachment should be; but it would not be a far-fetched interpreta- tion to assume that it was designed for such cases as the present one. However impolitic or dangerous such a procedure might be, it at least could not be called clearly unconstitutional; and had the required two- thirds majority vote been forth-coming, no other course could have been left to Judge Clark but to bow to the inevitable. But as argued by the Judge, the judicial independence of the courts would have been destroyed. The defense of Clark was excluded from the Journals of the Legislature, either through the fear of its effect on the relief cause, or through petty spite. When chided for this action, the legislative leaders declared it would receive all necessary publicity in the newspapers.6
In their first attempt to control the courts, the Legislature thus failed. One of the arguments that had caused some members who were in favor of the relief laws to vote against addressing Clark out of office was that the highest court of the state had not yet acted on the question, and that no permanent damage could be done to the cause until that happened. But this argument soon vanished, for in the early part of October of the next year (1823) the Court of Appeals re-affirmed the decision in the main of Clark. Two of the judges held that the relief laws were constitutional as to the transactions made subsequent to the passage of the laws, but void in all prior cases, while the third maintained that the laws were unconstitutional in every respect, in transactions be- fore the passage of the laws as well as afterwards. The three judges, who composed the court, Boyle, Owsley and Mills, handed down separate opinions; but the substance of their argument, dispensing with much theoretical reasoning and logic was: that the obligations of contracts consisted of the law and usage of the place and time where and when they were made, and that any subsequent legislation that impaired the legal remedy for maintaining or enforcing the contract, impaired its obli- gations just to that extent, that if the retroactive extension of replevin to two years did not impair the obligations of a contract, then its exten- sion to 100 years would not, and that if this did not, then the denial of all legal remedy for all tinie could not.7
To the Relief Party, the overt act had been committed. The highest court of the state had confirmed their worst fears; the whole system of relief was to be torn down by three men who had never been elected by the people, in contravention of a program set going by the people's representatives. Governor Desha said later: "The legislature and the country were startled at this decision. It declared void a course of legislation which had been practiced, as of unquestioned authority, from the origin of our government. It wrested from the representatives of the people the power to suspend the operation of the laws in any case of contract, even in time of insurrection, war, pestilence or famine. It denied to this government a power which, it is believed, has been exer- cised by every government of every civilized nation, as well as by every state in the union, and which is sometimes essential to nation existence. If our humble and industrious population is called out in martial array to suppress an insurrection, which is desolating the country, is it not necessary that the coercive hand of the law shall be suspended while they are engaged in the service? If they volunteer or are drafted and sent to repel an invading enemy, is there no power in the government which com-
6 Kentucky Gazette, June 6, 1822.
7 Doolan, "Old Court-New Court Controversy" in Green Bag, XI, 181 ; Niles' Register, Vol. 25, p. 147; Collins, History of Kentucky, I, 495, 496. There were two cases in point, viz. : Blair v. Williams and Lapsley v. Brasher.
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pels them to march, to suspend the operation of the laws and prevent the sacrifice of their property in their absence? By the decision of our courts, these benign and just powers are denied to the state legislature, and the rigid enforcement of contracts is deemed of more importance than justice to the absent debtor or the safety of the republic." 8
The handing down of these decisions stirred up and lashed to a fury the passions of the people, and according to George Robertson, "No popular controversy, waged without bloodshed, was ever more absorbing and acrimonious than that which raged, like a hurricane, over Kentucky for about three years succeeding the promulgation of those judicial decisions." 9 When the Legislature met, feeling waxed high against the court. A set of resolutions supported by a long drawn out argument was passed in December denouncing the court as an intolerable tyranny and bitterly arraigning it for thwarting the will of the people so clearly ex- pressed through the Legislature. It made bold to inform the judges that "the legislature cannot, ought not, and will not furnish any facilities for its enforcement, and as for the relief laws, "whether they were or were not expedient, are believed to be constitutional and valid; and which should, when it shall be thought to be expedient to do so, be repealed by the Legislature, and not by the Appellate Court." These resolutions were adopted by the House fifty-six to forty.10 An address to the governor was contained in the document, calling upon him to remove the obnoxious judges from office. But again due to the lack of a two-thirds majority the effort failed.11 The judges replied in a long and logical defense of their actions. Again they declared that the replevin laws violated the obligations of contracts and that the court had the right to declare a law uncostitutional. They also warned the Legislature and the people of the serious consequences that would follow if the court's de- cisions were resisted. The state would soon find itself in a condition of anarchy, and another Shay's rebellion would be enacted. The Federal courts, it was declared, would uphold the Kentucky courts in carrying out the remedy protecting the obligations of a contract, for such remedy was protected as much by the Federal Constitution as by the State Con- stitution. And as for being a judicial tyranny, the courts were so con- stituted in the framework of government that they could never become such through themselves alone, but only by being manipulated as a tool for the Legislature or the executive. "The ambitious man, who meditates supreme sway over his country's destinies," they said, "never mounts the Bench. He mounts the 'stump' and winds himself into public favor, by flattering the prejudicies and passions of the majority, as the serpent decoyed Eve. * * * No country was ever legislated out of debt, nor ever will be."12
A general feeling had been growing up against the state judiciary from the first days of the relief program. It was charged that the judges formed a class apart from the rest of the Government, that they were not amenable to the people, being appointed and holding office for life or through good behavior. A Kentuckian styling himself, "Gracchus" said, "If a body thus constituted and organized, possessing all these powers, advantages, and emoluments, and an identity of interests, be not a most rank and flourishing aristocracy, it is difficult to say what an aristocracy is." 13 The judges in certain instances had made themselves obnoxious by taking too prominent a part in the political campaigns. It
8 Message to the legislature, November 7, 1825 in Niles' Register, Vol. 29, p. 221.
9 Robertson, Scrap Book, 49.
10 Ibid., 49, 50; Acts of Kentucky, 1823, pp. 488-516.
11 Collins, History of Kentucky, I, 496.
12 Robertson, Scrap Book, 51-74.
18 Kentucky Gazette, Jan. 24, 1822. He also included the sheriffs in this state- ment.
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seems some members of the judiciary made themselves very conspicuous in the gubernatorial election of 1820, a condition which provoked "Mar-
cellus" in the Kentucky Gazette to say, "With astonishment,
*
* * I have seen our judges the most active partisans in our last gubernatorial election ; some as letter writers ; some as certificate men ; some as caucus men; and some as hand-bill circulators." 14 Schemes were soon forming to bring the judiciary under a closer control of the people. It was suggested by one reformer that the Court of Appeals should be divided into three branches to meet in three separate places over the state, and in that way break up its concentrated power at Frankfort. This was advo- cated especially by the representatives of the Relief Party. The Anti- Relief Party opposed such a move as amounting to the virtual setting up of three separate courts which would bring about confusion and the final extinction of any court of final appeal.15
The most important effort indirectly to control the courts or to at least bring them closer to the people was the rather widely agitated movement for the calling of a constitutional convention. These efforts became especially marked after Judge Clark had delivered his opinion in Williams v. Blair. The relief party believed that if a constitutional convention could be had, the constitution could be changed to make the judges elective and a fixed term of office be given. This was a much less radical way of proceeding than to stand out for the annulling of the authority of the court by refusing aid to it in carrying out its decisions, and even less dangerous in arousing popular passions than the constitu- tional method of address. This method would, therefore, command much more support from a much larger number than could be hoped for in a more violent course. The supporters of a call for a conven- tion needed not even to be relief men, but might come from all classes that hoped to profit from a convention in various ways. The directive force was, however, being applied by the relief party, and for the specific purpose of changing the judiciary. The session of the Legislature in 1823 took up the question, with the result that a bill calling for a con- vention was passed in the House by the substantial majority of fifty-six to thirty-three, but was defeated in the Senate by a close vote.16 The opposition, composed of the Anti-Relief Party for the most part and of every other species of conservative, used devious argument, specious and otherwise, in their efforts to defeat the bill. They conjured up the most unusual evils with which to scare the people. The slaves might be freed by a convention, the very order of the state might be subverted-the same line of argument used in 1798. Remarking on such a puerile course, the Kentucky Gazette said, "We have no rabble in Kentucky to lead, but have a number of ardent minded citizens too much disposed to listen to strange tales of ghosts and hobgoblins, such as are now preparing to de- feat a convention bill. The first light touch at demagoguing is the story of the removal of the seat of government from Frankfort. The second touch is, that the University will be removed from Lexington. These events are mentioned for the latitude of Franklin and Fayette, as if the citizens of those counties had ceased to reflect, or never possessed com- mon intellect." 17
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