xt7dz02z3k9w https://exploreuk.uky.edu/dips/xt7dz02z3k9w/data/mets.xml Clay, Cassius Marcellus, 1895-1959. 19  books b92-128-29178437 English s.n., : [S.l. : Contact the Special Collections Research Center for information regarding rights and use of this collection. Kentucky Banks and banking History. Kentucky Politics and government 1792-1865. Kentucky's new deal of the 1820's  / Cassius M. Clay. text Kentucky's new deal of the 1820's  / Cassius M. Clay. 19 2002 true xt7dz02z3k9w section xt7dz02z3k9w 



Kentucky's New Deal

        of the 1820's



        Reprinted from December, 1939
          Kentucky Stdte Bar Journal









                 By
     CASSIUS M. CLAY
Assistant Genera Counsel Reconstruction Finance Corporation

 
This page in the original text is blank.
 















KENTUCKY'S NEW DEAL

            OF THE 1820's



  Those who attacked the New Deal
and President Roosevelt's Supreme
Court proposal of February, 1937, as
un-American, need to re-examine
American history. Over a hundred
years ago, the State of Kentucky was
convulsed by a contest over the courts,
which arose out of circumstances odd-
ly analogous. Let us turn back the
pages of history.
  As with the President's Court plan,
the Kentucky "reorganizing" Act of
1824 was the answer of a dominant
group which controlled the executive
and legislative branches, to decisions
of the judiciary which threatened to
obliterate comprehensive systems of
legislation, originated in periods of
distress.  Curiously  enough,  the
situation of the farmers and the
debtor class in general, in Ken-
tucky and other states west of
the Alleghenies, in the early 1820's,
was similar, in many ways, to the sit-
uation of those groups throughout the
nation at the time President Roose-
velt first took office. From 1812 to
1816 was a period of inflation on the



Eastern seaboard. Though the states
west of the Alleghenies had some sil-
ver and were free from serious finan-
cial disturbances, they, no more than
the rest of the country, had b.een able
to withstand the itch which seized peo-
ple generally, to get rich quickly both
during and after the War of 1812,
and the Napoleonic Wars abroad.' 
The panic of 1819, which followed an
epidemic of unsound banking and land-
speculation throughout the country
generally, found the situation in Ken-
tucky peculiarly desperate for a vari-
ety of reasons. According to one au-
thority: "Droughts, hot spring weath-
er, insects and cold summers in the
years from 1816 to 1819 kept farmers
from buying new goods or paying for
what they had purchased."' Ken-
tucky's only real bank-the Bank of
Kentucky-had suspended specie pay-
ments some years before. In response
to a demand for more banks, the leg-
islature in 1818 had chartered forty-
six new banks, which, to meet the
pressure for paper money, were given
 See end of article for notes.

 


the privilege of issuing notes to an
"amount equal to three times the
amount of their capital stock, less in-
debtedness."' These notes, which
were not redeemable in specie, but in
notes of the Bank of Kentucky, which
had meanwhile managed to resume
specie payments, or in notes of the
second United States Bank, had flood-
ed the State. Incidentally, when in
1820 the legislature repealed the char-
ters of these independent banks,
which by this time had become hope-
lessly involved, the banks became pop-
ularly known as the "Forty Thieves"
-evidential of a popular resentment
towards banks and bankers not unlike
that which swept the nation after the
bank holiday of 1933.
  In relating the trouble which arose
in Kentucky to the main currents of
American history, it is necessary to
remember that the deflation which
follows a wartime boom, marked as it
invariably is by falling prices, bears
hardest on rich speculators who are
caught in an over-extended position,
and on the farming and laboring class-
es, who as a rule are least capable of
withstanding financial strain. In the
1820's the United States was a young
country and various parts of the
country recovered rapidly after the
crisis of 1819. Hard times, however,
persisted in some sections and among
some groups as late as 1825. Thus,
even in 1826, we find Thomas Jeffer-
son, faced in the last year of his life
with the threat of having to sell
Monticello to pay his debts, writing to
a friend that "Agricultural property
is, at this time without a market" in
Virginia.4
  The sittuation in Kentucky, a state
of greater soil and other natural ad-
vantages than Virginia, was aggra-
vated after 1820 not only by the cir-
cumstances already mentioned, but
also by factors which, coupled with
a strongly individualistic trait, which



even today continues a characteristic
of the better type of Kentuckian, were
calculated to heighten a distrust of
fancied encroachments of the Feder-
al government, and particularly of the
Federal judiciary. Since the "re-
organizing" Act of 1824, which pur-
ported to abolish the existing Court
of Appeals and set up a new court in
its place, grew out of the supposed
subservience of the old court judges
to the decisions of the United States
Supreme Court, under Chief Justice
Marshall, there was a states' rights
angle to the controversy which can-
not be overemphasized if we are to
explain the reasons for the wave of
radicalism in the State. When, in
1824, the judge-breaking law was
passed, there were still active many
of those who had voted for the famous
Kentucky Resolutions of 1798, enun-
ciating the doctrine of nullification.
In this number were included Desha,
who had been elected Governor by the
Relief party. When, therefore, in
his annual message to the legislature
in 1825, Governor Desha in defend-
ing the Court "reorganizing" bill and
in attacking the United States Bank,
appealed to the spirit of the 1798 Res-
olutions, he well knew that he was
striking a popular chord. Throughout
the long controversy, both sides quot-
ed to their own ends the utterances of
Patrick Henry, James Madison,
Thomas Jefferson, and others of the
Revolutionary fathers.
  Students of the period have long
realized that some of the decisions of
John Marshall and his associates
were major factors in the rise of
Jacksonian Democracy. The struggle
in Kentucky in the years under dis-
cussion afford convincing proof of
this insufficiently appreciated fact.
  The distrust of a strong central
government by the farming interest
dates from the early days of the Re-



[4  

 

public. After the close of the War
of 1812, the general government, in
1816, aided business men and manu-
facturers by passing a protective tariff
act and establishing the second United
States bank. Mismanagement coupled
with downright dishonesty in the
Pennsylvania, Maryland, and Virginia
branches brought the latter, within
four or five years, to the verge of in-
solvency. To it, in various parts of
the country, was attributed the re-
sponsibility for the business distress
and financial stringency in 1819, and
the succeeding years. That this feel-
ing was not without justification
would appear from Channing's state-
ment that "undoubtedly the attempt
to bring about deflation in so short a
time and by means of a national fi-
nancial institution was most unwise
   ; and also did something at
least to bring about the hard times of
the next few years."' Nowhere did
feeling against the United States
Bank become more intense than in
Kentucky, and, it would appear, with
good reason. An excellent monograph
on the court struggle concludes:
"Viewed from any standpoint, the
United States Bank was an important
factor in precipitating the problems
with which Kentucky was strug-
gling."' According to the author of
this work:
  "There is little doubt that these
branch banks (in Lexington and
Louisville) in their early history in
Kentucky did help to hasten rather
than to retard the impending ruin,
and that they themselves were in a
large measure to blame for the hatred
heaped upon them during and after
the financial and political crisis which
soon struck the State. United States
Bank notes were redeemable in specie,
and Kentuckians exchanged large
quantities of state bank paper for
them at a great discount. This helped
to reduce the value of the state bank



notes and at the same time put the
banks more heavily in debt to the Fed-
eral banks. As hard times began to
appear in the East in the latter part
of 1818, the Federal branch banks in
Kentucky began to demand specie and
to bring pressure to bear on the state
banks, which in turn passed it to their
debtors."
  In 1819 there was due to the Ken-
tucky branch banks, 2,690,760, and
to save themselves from disaster,
calls began to come from them for
payment in specie.' Doubt was ex-
pressed in the press whether all the
specie and Federal and state paper
money in the State would be sufficient
to pay this debt and large sums due
the Federal land office. In addition,
there were large sums owing in specie
to the Bank of Kentucky, the inde-
pendent banks and from the mer-
chants to eastern business.
  When the Bank of Kentucky, with
its thirteen branches, which as already
mentioned had resumed specie pay-
ments, was for a second time forced
to cease such payments, accompanied
at about the same time by similar sus-
pensions on the part of the "Forty
Thieves," the control of the whole
banking business of the State fell to
the two branches of the United States
Bank.
  This, then, was the financial situ-
ation of the State when the full effect
of the decision of the Supreme Court
in McCulloch v. Maryland,"1 uphold-
ing the constitutionality of the United
States Bank and placing it beyond the
reach of State taxation, came to be
fully realized. Hostility in Kentucky
to this decision was heightened when
the State Court of Appeals, later to
be attacked for yielding to the Su-
preme Court, refused to accept its
reasoning.  Though  Chief justice
Marshall handed down his opinion on
March 6, 1819, the State Court of Ap-



[ 5 1

 


peals, in a decision not rendered until
December of that year, unanimously
decided that the United States Bank
was unconstitutional, although two of
the three judges advocated yielding
out of respect to the Supreme
Court."
  Less than three weeks before the
decision in the McCulloch case, the
decision rendered by Marshall in
Sturges v. Crowninshield," holding
that a state bankrupt law was invalid
as impairing the obligation of contract,
in so far as it attempted to discharge
a contract or debt entered into prior
to the passage of the law, created
great uneasiness in Kentucky and in
other states among debtors who, due
to the times, had taken advantage in
large numbers of state insolvency
laws to obtain discharge of their
debts. It should be remembered that
years were to pass before Congress
was to enact a National Bankruptcy
Act. The alarm caused by this de-
cision was in part due to the fact that,
generally, throughout the Union, deb-
tors could still be thrown into prison
for failure to pay their debts.
  Still another grievance of Kentucky
against the Federal judiciary was in
relation to its land laws. Uncertainty
of land titles had, from the earliest
days, been the peculiar curse of the
State. Much of the trouble was due
to the lack of system in the legislation
with reference thereto, while Ken-
tucky was still a part of Virginia.
Unfortunately for Kentucky, it had
been settled at a time when the Vir-
ginia government, due to Revolution-
ary War conditions, was unable to
enact orderly land laws. Unlike the
states north of the Ohio, where a dif-
ferent principle of surveying and reg-
istration was adopted, these early acts
had made possible a multiplicity of
overlapping and conflicting claims.
The influx of settlers to Kentucky in



the early days, is accounted for in
part by the fact that the laws permit-
ted the location of large tracts. Ac-
cording to one writer, in some cases
the holders of patents in Virginia,
"sent their slaves and overseers ahead
to clear the fields and build the home-
steads.""  Though the utter lack of
system in the land laws stimulated
early settlement, it had other effects
upon the development of the State. At
a time when property was mostly in
land, there was no state in the Union
where landed property was more in-
secure than in Kentucky, due to the
truly extraordinary state of Kentucky
land titles in the early years of the
eighteenth century. While "Kentucky
became a lawyers' paradise, attracting
many men of talent, who might other-
wise have remained east of the moun-
tains,"' many of the pioneers, along
with Daniel Boone and Simon Ken-
ton, either found themselves actually
dispossessed, or else moved to other
states for fear of losing their posses-
sions. For the latter reason, for exam-
ple, rather than for any dislike of
slavery (for of that institution they
saw little in Hardin County) did the
parents of Abraham Lincoln move
over to Indiana, as did the parents of
Jefferson Davis to Mississippi.' To
mitigate the situation, the Kentucky
legislature, as early as 1797, had
passed a so-called "occupying-claim-
ant" law, designed to protect actual
settlers on the land from claims of
non-resident owners. Again in 1812,
the clamor of the occupants had been
quieted by a further enactment, so as
to restrict the award of possession to
the actual holder of the legal rights,
unless and until he should compensate
the occupier for all improvements. It
was further provided that, in default
thereof, the title should rest in the oc-
cupier upon paying the value of the
land without improvements. Though
doubt had been long expressed



[61

 

whether these acts did not violate the
compact with Virginia, entered into at
the time of the separation of Ken-
tucky from the mother state, wherein
it was agreed "that all private rights
and interests of land within the said
district, derived from the laws of Vir-
ginia, prior to such separation, shall
remain valid and secure under the
laws of the proposed state, and shall
be determined by the laws now exist-
ing in this state," the acts had been
part of the settled law of Kentucky
for nearly a generation. They had
never been attacked by the other party
to the compact, the State of Virginia.
When, therefore, in a suit brought in
the Federal courts involving the title
to some 6,000 acres of land in Bourbcrn
and Fayette counties, the constitu-
tionality of the occupying-claimants
laws was challenged on the ground
that they constituted a violation of the
obligation of the compact with Vir-
ginia, the hard-pressed Kentuckians
again saw themselves thrown upon
the mercy of the United States Su-
preme Court. Though the first deci-
sion in the case, Green v. Biddle,"
holding the Kentucky laws invalid,
was not handed down until March,
1821, after the Relief party had swept
the State, the issue served to fan the
flames of resentment against the Fed-
eral judiciary and became a factor in
the subsequent effort to overturn the
State Court of Appeals, particularly
when, in 1823, upon rehearing, the
Supreme Court reaffirmed its decision
with a single dissent by Justice John-
son, who argued that it was incom-
patible 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 the compact, that Kentucky
should be forever chained down to a
state of helpless imbecility-embar-



rassed with a thousand minute dis-
criminations drawn from the common
law, refinements on mesne profits, set-
offs, etc., appropriate to a state of so-
ciety and a state of property, having
no analogy to the actual state of
things in Kentucky-and yet, no pow-
er on earth existing to repeal or to
alter, or to effect those accommoda-
tions to the ever-varying state of hu-
man things, which the necessities or
improvements of society may re-
quire."' The antagonism excited by
the prevailing opinion was intensified
lby the manner in which it was under-
stood to have been decided. Marshall
had disqualified himself from partici-
pating by the interest of near relatives
in the result. Twvo other justices were
absent because of illness, so that the
court's decision, upsetting the Ken-
tucky laws, was handed down by a
minority of the court, three justices
out of a total of seven which then
comprised the whole court." It was
on this ground that the Kentucky
Court of Appeals, in subsequent
cases," refused to follow the decision,
so that it was enforceable only in the
Federal courts. It was on this ground,
also, that the Kentucky legislature
protested against "the erroneous, in-
jurious, and degrading doctrines of
the opinion," and in a remonstrance
to Congress, adopted in 1824, asked
for a reorganization of the Supreme
Court. If the Court's construction of
the compact with Virginia was sound,
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 in-
dependent state, while, in reality, she
retains her as a colony." It was not
reasonable that one state should al-
low its land system to be dominated
by another state. "No state that pos-
sessed the power of legislation over its
soil could or ought to submit long to
tenures of it, unassociated with culti-



[ 7 ]

 


vation. The desolating effects of the
numerous titles of that sort in Ken-
tucky have greatly retarded its agri-
cultural advancement, and would, but
for the benign effect of its occupying
claimant laws, have thrown behind its
just destinies at least twenty years.
The state could not have got along
without them." The point of the re-
monstrance was the suggestion that
Congress should either pass a law re-
quiring the concurrence of at least
two-thirds of all the members of the
Supreme Court in any case involving
the validity of a state law, or else in-
crease the number of the judges so as
to multiply the chances "of this state
to escape from its present thraldom,
by exciting the exercise of more de-
liberation and an increased volume of
intellect upon all such questions." A
bill to require concurrence of five of
the seven Judges in any opinion in-
volving the validity of state statutes
or Acts of Congress was actually re-
ported from the Senate Committee on
Judiciary by Martin Van Buren,'
then a Senator from New York-one
of a series of not less than seven dif-
ferent proposals which were made in
Congress during the 1820's for a re-
quirement of more than a majority of
the Supreme Court to hold a State
statute  unconstitutional; none  of
which, however, succeeded in com-
manding sufficient support for pass-
age by either House, except a pro-
posal of this kind which in 1826
passed the Senate.'
   Money and banking, the plight of
debtors, security in the possession of
homes they had builded and fields
they had cleared from the wilderness
with their own hands-on these issues
-characteristic of a new country-
the common man in Kentucky in the
early 1820's was demanding a new
deal. The response to that demand
was no less emphatic than in the 1930's
when the issues, though essentially



similar were those of an industrialized
civilization, dominated by finance-cap-
italism.
  In Kentucky, the relief of debtors
was an initial concern of the so-called
"Relief Party." Since the admission
of Kentucky to the Union, and before
that, the Virginia legislature had,
from time to time, enacted various
"stay" laws, under which debtors,
who gave bond with security to their
creditors, were protected from levy
by the sheriff upon execution of
judgment. After the first suspension
of specie payments by the Bank of
Kentucky in 1814, this legislation had
been supplemented by a further law
providing for a "stay" of twelve
months, if the creditor did not en-
dorse on his execution his willingness
to accept in payment of his judgment
note, notes on the Bank of Kentucky
or its branches, or the notes of any
other incorporated bank of the State,
or notes on the Treasury of the
United States.' The principle was
pushed still further by an Act of 1820
which extended the power of replevy-
ing judgments from 3 to 12 months;
if the plaintiff should refuse notes of
the Bank of Kentucky in discharge of
the debt, the defendant could replevy
for two years.' Being promptly chal-
lenged in the Federal Circuit Court,
then composed of Justice Todd of the
United States Supreme Court, and
Judge Trimble, who was later to suc-
ceed him on that tribunal, the lower
Federal Court upheld the constitu-
tionality of the act in question, not,
however, without misgivings and the
following warning:
   "If the act required the plaintiff to
endorse that he would receive notes on
the Bank of Kentucky or its branches,
we would not hesitate to consider it
an inhibited tender law, and pro-
nounce is so far void. But the provi-
sion in relation to the endorsement is



[ 8 ]

 


not mandatory, but permissive; he
may take it as his election;    If
the plaintiff does not elect to make
endorsement, the law substantially
gives the defendant a right to replevy
for two years. Whatever might have
been our impressions as to the consti-
tutionality of replevin laws, if it were
a matter of first impression, it is too
late, after the states have been in the
practice of passing them ever since
the adoption of the Constitution, with-
out objection, now to pronounce them
void upon constitutional grounds, un-
less it were a very clear case.""
  It was in the same year that the
legislature repealed the charters of
the independent banks, previously re-
ferred to as the "Forty Thieves,"
leaving under the control of the State
only the suspended Bank of Ken-
tucky.
  In the election of 1820, which fol-
lowed these events, the Relief party
for the first time gained control, by
substantial majorities, of both the ex-
ecutive and legislative departments of
the State government. Thereupon a
more comprehensive program of re-
lief was enacted. 'One act abolished
all imprisonment for debt (Kentucky
thus being the first" state in the Union
to do away with the old and barbar-
ous method of imprisoning insolvent
debtors). A second act authorized the
county courts to purchase lands and
to erect poor-houses for destitute old
persons. A third act incorporated the
Bank of the Commonwealth, with
branches in each judicial district, to
be wholly owned by the State, and
with a president and directors chosen
by the legislature. The charter of this
institution, anticipating the R. F. C.,
provided that its loans were to be
made only to those who needed them
"for the purpose of paying his, her,
or their just debts, or to purchase the
products of the country for exporta-



tion." ' In addition, the bank was
empowered to issue its notes, which
were not required to be redeemable in
specie. A fourth act provided that
real estate of a debtor should not be
sold on execution for less than three-
fourths of its appraised value. Still
another act allowed judgments to be
stayed for two years, if the creditor
did not endorse on his execution his
willingness to accept notes of the
Bank of Kentucky, or of the new
Bank of the Commonwealth. If hewas
willing to accept notes of the Bank of
Kentucky only, then he was forced to
wait twelve months for his payment;
but if he should endorse his willing-
ness to accept the notes of the new
Bank of the Commonwealth, he
should have to wait only three
months. One Kentucky historian ex-
plains this discrimination between the
two banks as "a bold effort to force
the notes of the latter in preference to
the former. The Bank of Kentucky
had long been under the ban of the
radical Relief party. trJo them it was a
monster which sought Cto kill the ef-
fects of the relief measures at every
step. It was in fact managed by con-
servative men who sought to confine
its activities to sound banking princi-
ples. It had been bitterly attacked in
the campaign before the establishment
of the Bank of the Commonwealth.
The Relief men claimed that it would
execute loans only to certain privi-
leged persons and that it was a dan-
gerous influence in politics."  A de-
mocracy, when aroused, can hit hard,
and not always wisely. In 1822, the
legislature repealed the charter of the
Bank of Kentucky, giving it seven
years to wind up its affairs. At the
time, it was the only sound bank with-
in the control of the State, but the
people, with the recent record in mind
of the so-called "Forty Thieves," had
lost confidence in the integrity and



[91

 

ability of banks run by private indi-
viduals."
  The act last mentioned was de-
signed indirectly to support the value
of paper money of the wholly Gov-
ernment-owned Bank of the Common-
wealth, but no legislation could effect
this purpose. The paper notes got a
bad start, selling for only 70 cents on
the dollar in specie in the very be-
ginning. A year later they had
dropped to 50 cents.' Even the Re-
lief party, through its more responsi-
ble leaders, now took alarm. In his
message to the legislature in October,
1822, the Governor of the State ad-
vocated the gradual retirement of the
notes. This policy was made effective
and Frankfort, the State capital, was
lighted by a succession of bonfires of
the "rag" money. More than half of
the notes of the Bank of the Com-
monwealth were thus retired, so that
in time they approached par.' The
stay and replevin laws, like the de-
preciated currency, also proved of
short duration. In January, 1824,
these laws were replaced by a more
innocuous enactment.
  Not, however, before the Relief
party had become involved in a head-
on collision with the courts. Even a
frontier community, through sad ex-
perience, could learn the principles of
sound finance; but it was to prove
harder for it to learn the constraints
imposed by the American Constitu-
tion upon the working of the demo-
cratic will. As already explained, the
primary concern of the Relief party,
when it came into control of the
State government, was the relief of
the debtor interest. The legislative
session of 1820-1821 had hardly com-
pleted its work, when an attack
thereon by creditor interests was be-
gun in both the Federal and State
courts. In the Federal court, in the
case of Bank of the United States v.



Halstead, the constitutionality of the
valuation law was assailed; in Bank
of the United States v. Southard,
that of the stay and replevin laws; and
in Bank of the United States v. Jan-
uary, an attack was made upon the
law abolishing imprisonment for
debt. In all three cases, the Federal
Circuit Court divided, Justice Todd
of the United States Supreme Court
holding the State laws were valid, but
Judge Trimble, who had joined in the
opinion of the year before already
quoted, now dissented from his as-
sociate.'4  It was not until March,
1825, that a decision in the three
cases was handed down by the
United States Supreme Court." That
court sidestepped the whole issue by
holding that the Federal courts had
power to regulate their own process-
es by their own Rules of Court; that,
as no state had power to regulate the
processes of the Federal courts, the
State laws relative to executions, re-
plevy of property sold to satisfy
judgment, imprisonment for debt,
etc., were not binding upon such
courts; and, therefore, "if the laws
do not apply to the Federal Courts,
no question concerning their constitu-
tionality can arise in those Courts".
At the time, Kentucky was in turmoil
over its own courts. While thus
cleverly the United States Supreme
Court avoided passing on the consti-
tutionality of the obnoxious laws, its
decision sanctioned the anomaly that
a Federal corporation, such as the
Bank of the United States, and non-
resident creditors in other states
could escape the restrictions of the
State laws by suing in the Federal
court, and thus the State laws, which
had been largely aimed at the bank
and at non-resident creditors, were
rendered of no avail. No such side-
stepping of the issue wvas open to the
State courts, and in a suit between
two citizens of Kentucky, arising in



[ 10 ]

 


the Bourbon County Circuit Court, to
force the payment of 219.672 im-
mediately instead of waiting the two
years allowed by the stay and re-
plevin law, Judge James Clark
held the stay and replevin law
invalid.' This and a similar de-
cision from the Fayette County
Circuit Court came before the Ken-
tucky Court of Appeals in October,
1823. This latter Court's decisions,;
sustaining the two lower courts, and
holding that the two-year replevin
law, in so far as it purported to op-
erate retroactively on contracts made
before its enactment, offended against
both the Federal and State constitu-
tions, wvere in reliance upon the law
as laid down by the United States
Supreme Court, through Chief Jus-
tice Marshall, four years before in
Sturges v. Crowninshield. It was the
same year in which, previously, the
latter Court had handed down its
second decision in Green v. Biddle, fi-
nally concluding the invalidity of
Kentucky land laws which had been
passed years before to protect oc-
cupying claimants.
  "No popular controversy, wvaged
without bloodshed," said years after-
wvard George Robertson, one of Ken-
tucky's great lawyers, "was ever
more absorbing or acrimonious than
that which raged like a hurricane,
over Kentucky for about three
years," succeeding the promulga-
tion of these decisions with regard to
the validity of the stay and occupy-
ing-claimant laws. The people had
sincerely believed both sets of laws
constitutional. It was charged by the
News Court party that many of the
Old Court leaders, including some of
the State's most distinguished law-
yers, had at one time or the other
voted for the principle of one or other
of the sets of laws, without challeng-
ing its constitutionality.  It would
even appear that two of the three



judges of the old Court of Appeals,
Mills and Owsley, had voted, while
members of the legislature, for re-
plevin laws.' The truth would seem
to be that, after the issue was nar-
rowed to the question of the inde-
pendence of the courts, there was a
considerable shifting of sides on the
part of both the Relief and anti-Re-
lief forces.
  From an examination of contem-
porary documents it is difficult to say
whether, after the decisions in ques-
tion, the Federal courts or the State
Court of Appeals, was in greater
popular disfavor. The former, at any
rate, were beyond the reach of an
angry and alarmed mass movement.
It was not so with the latter.
  It was believed that if a state con-
stitutional convention could be had,
the  state  constitution  could  be
changed to make the judges of the
Court of Appeals elective instead of
appointive for life. A proposal for
the call of such a convention passed
the House at the next session of the
legislature, but failed by a close vote
in the Senate. [n the election of 1824,
the Relief party, besides electing
Desha, its candidate for Governor
(who, however, in his canvass, ap-
pears to have taken an obscure posi-
tion on the constitutional issue') in-
creased its representation in both
houses of the legislature. An attempt
was then made to address the judges
of the Court of Appeals out of office,
but this move failed for lack of a
constitutional two-thirds vote in both
Houses. But the Governor and the
Relief party leaders, considering that
they had a mandate from the people
to get the judges out of office, were
not to be balked. In this exigency,
all other methods having failed, they
turned to a more drastic, and more
questionable, measure. At a "mid-
night" session on December 24. 1824,
the legislature passed by simple ma-



f 111

 


jorities in both houses, and the Gov-
ernor hurriedly signed, an act legis-
lating the judges of the Court of Ap-
peals out of office. This enactment,
styled an act to reorganize the Court
of Appeals, provided for the repeal
of all legislation relating to organiza-
tion of the Court of Appeals, and then
for the setting up in place of the
existing court of a "new supreme
court, styled the court of appeals,"
with four judges to administer it.
The Act is believed to have been the
work of George M. Bibb, not a mem-
ber of the legislature at the time,
though a former Chief Justice of the
State and a distinguished lawyer.
While we cannot here discuss the va-
rious ingenious, if unconvincing, ar-
guments used by the Relief party
leaders in support of the constitu-
tionality of this Act, it will suffice to
say that, in the checkered history of
the relations of the Kentucky legisla-
ture with the State courts since state-
hood, there was not lacking a sem-
blance of precedent for the judge-
breaking move. Four years after the
Court of Appeals was first estab-
lished in 1792, the legislature of the
State in amending its jurisdiction,
had carelessly sty