ask the gentlemen who support the bill, ought they to push it through the House? I ask them further, are their minds free from doubt? Have they been so well drilled that their drilling with so many men in and out of this House, in opinion upon its constitutionality, has, as yet, produced no hesitancy?

"What have the Legislatures of our sister States done when their courts have decided laws unconstitutional? Did they remove the judges or abolish the courts? I answer, neither.

"The Yazoo purchase of Georgia was effected by bribery and corruption. The next session the sale was, by the Georgia Legislature, declared void. Georgia, after that, sold and transferred the land to the United States. The purchasers proposed a compromise. Congress refused upon the ground that the original purchase was void, and that the Legislature had so declared it by a subsequent act. After all this had been done the Supreme Court, in the case of Peck and Fletcher, decided that the last act of the Georgia Legislature was void because it impaired the obligation of the contract in the first purchase. When this decision was given what did Congress do? Did it remove the judges or abolish the court. Neither; but acquiesced in the decision, and paid the company five millions of dollars for a compromise.

"If we turn the present judges out, who can we get that will better fill their places? What kind of men are we to have? Who will submit to the humiliation of giving in their confession of faith before they are appointed? For it is certainly intended to appoint none who will not swear allegiance to the doctrine of the new school. They certainly can have no pride of character-no conscious self-worth.

"Can we get men of more law-learning and better morals? I doubt it very much. Can we get men whose judicial opinions will be more favorable to the settlers and occupants of lands? Certainly not; and, in all probability, not so much so. The present judges in opposition to the Supreme Court of the United States have sustained our occupying claimant laws, our limitation laws, and the doctrine in relation to writs of right. In the selection of new judges we have some risk to run. I have heard men spoken of as judges who I know have heretofore been against our limitation laws.

"We have been told that the judges have insulted the people by calling them fools, idiots, and liars. There is not one word of truth in that assertion. The judges have been called 'three kings,' and it has been said that they wished to usurp the Government and tyrannize over the people. Who ever heard of judges destroying a republic? They are but few in number. A faithful discharge of their official duties makes no friends, it gives no influence. They have no patronage; the purse and sword of the State are wielded by the other departments.

"All republics have gone the same way; men of daring courage and unbounded ambition have played the demagogue by abusing the honest

officers of government, sounding alarms and crying out to the people, we are oppressed by those who administer the Government, pretending a glowing love and ardent devotion to the people. This course of conduct breaks the harmony of the Government, produces discord, confusion, riots, and tumults; still advancing, step by step, the climax is capped by pushing the people into blind anarchy and wild uproar. In this state of things the Government is a prize to the first bold and daring adventurer. The history of all republics proves this assertion. Athens had her Pisistratus; Rome, her Cæsar; England, her Cromwell; and France, her Bonaparte.

"There has been one answer given to all we can say on the subject; that is, the people have expounded the laws and returned their verdict against the judges. This I deny. But suppose it was a fact; I never want a judge on the bench who, before he decides, will inquire either as to the power and influence of the litigant parties, or as to the popularity of the cause, or of the law relied on. I want no man on the bench who wishes to know before he gives his opinion, what is the state of the weather; whether it is serene and uncloudy, or stormy and tempestuous. In fact, deliver me from the judge who, before he decides on my property, liberty, or life, asks what the people have got prepared for his dinner?

"The people have given their verdict, and it is in favor of the judges. The only question submitted to the people was, to remove the judges by address. The people have decided. There are not two-thirds for their removal; therefore, the Constitution pronounces the judgment of acquittal.

"My friends in their remarks have complained about midnight caucuses; I have neither blame nor censure to bestow on that account. Jefferson, Madison, and Monroe were brought into office by a caucus; and I think if Mr. Clay and his friends, last winter,,had gone into caucus with Crawford and his friends, those gentlemen, who have been persecuted and hunted down by the administration, would not have been where they are now.

"In the British Parliament, the opposition is marshaled by concert. The administration arrays its forces. There we see the prime minister, as we have in part done here, leading on his placemen, his pensioners, the household troops, the mercenaries, the Swiss guards, and, on the wings of this formidable phalanx, we see our little courtiers who bask in the sunshine of executive favor and patronage.

"I will, Mr. Speaker, solicit the attention of the House, a moment longer, until I notice the amendment of the gentleman from Hardin. I will vote for that amendment out of a spirit of compromise and conciliation. In all great political questions we ought to yield something, and meet members upon half-way ground.

"If it be only to produce a change of decision in the Court of Appeals, this amendment effectuates that object, because it requires the whole court to concur before a law shall be decided unconstitutional. The same mode

of selecting the one judge, that must be adopted in selecting the four, is all

that is requisite.

"Permit me, Mr. Speaker, to beg, beseech, and conjure the members of this House to use their best effort to settle this question without pushing matters to extremities. Our common country is distracted with this ques

Party spirit rages with great violence. The State is nearly divided as to numbers and talents. A victory ought not to be desired by either party. The pride of victory on the one side, and the mortification of defeat on the other, widens the breach between them; and, instead of restoring peace, harmony, and concord to the country, increases that bad state of feeling which already too much exists. We are all members of the same political family; let us bury the hatchet and brighten the chain of peace; embrace as brothers, and then, in a state of good feeling, turn our attention to internal improvements and the amelioration of our common country."

The closing scenes of the debate were marked with tumult and disorder. It was complained that the governor and others (not members) were on the floor of the House exerting their personal influence for the passage of the bill. "The scene," said an eye-witness, "resembled a camp-meeting in confusion and clamor, but lacked its holy impulses. "* The bill passed like a whirlwind. The result, however, showed that in debate the advantage had been with the Anti-Relief leaders. Galloway, Cosby, Martin Hardin, Triplett, and Watkins had voted for the address. On the bill to reorganize, Galloway did not vote, and the others named voted against it. An intelligent writer has observed very truly that in these debates the Relief party received its death stab. The bill was promptly approved by the governor, and (as its friends supposed) became a law. Thus, for the first time in this State, was witnessed an attempt by one department of government to overthrow a co-ordinate department. The real purpose of the majority of the Legislature, it need hardly be remarked, was to reorganize the court, not because its existing organization was defective, but solely to remove judges who differed with the Legislature as to the just limit of the law-making power.

During this period partisan feeling grew exceedingly bitter. Mr. Hardin spared neither sarcasm, wit, nor ridicule. So exasperated did one Haskins become that on one occasion, armed with a hickory bludgeon, he attacked Mr. Hardin, as he emerged from the capitol, inflicting personal injury. This was regarded as an amusing episode by "Relief" partisans, and celebrated in cotemporary doggerel:

"A hickory stick and a Haskins lad,

They make the old tom-cat so mad."

*

The late Chief Justice George Robertson.

Θ

CHAPTER XII.

A CASE AFFIRMED.

N January 10, 1825, Governor Desha appointed for chief-justice of the new Court of Appeals William Taylor Barry, and for associate justices James Haggin, John Trimble, and Benjamin W. Patton. Shortly afterward, Patton died, and Rezin H. Davidge was appointed in his place.

Of Barry mention has already been made. His talents were those of an advocate, rather than a jurist. He shone at the bar, and was notably skillful as a criminal

was at a disadvantage. Haggin was a prominent member of the Lexington bar, and enjoyed an extensive practice. He, more than any of his associates, suffered from the partisan heat of the period by assaults on his private character. So violent were these that he professed to fear assassination. John Trimble was born December 4, 1783. He was a brother of Robert Trimble, who died while a justice of the Supreme Court of the United States, and of whom Judge Story said: "Men might differ with respect to the rank of other lawyers, but all admitted that no one was superior to Robert Trimble in talents, in learning, in acuteness, in sagacity." But the relationship existing between these brothers was of blood only, not of genius. The educational advantages of John, in early life, were inferior to those enjoyed by his distinguished brother. When nineteen, he was secretary of Robert Evans, governor of Indiana Territory. After this, he studied law with that renowned preceptor, George Nicholas, of Lexington. He practiced law at Paris from 1807 to 1816. He was then appointed Circuit

WILLIAM TAYLOR BARRY.

66

judge, upon which he removed to Cynthiana. His ability was questioned by some while he was acting as Appellate judge. This may have resulted from partisan rancor, or because (as Collins says) only those who knew him intimately suspected the general variety of his knowledge and his severely-critical judgment." Davidge's sole claim to distinction seems to have been his appointment to the vacancy caused by Patton's death. These men did not measure in ability with the bench of the "old" court. The danger of such a comparison seems to have been overlooked by the Relief governor. Legislature also committed another serious mistake to the party detriment. The majority chose their leader, John Rowan, United States Senator. They thus not only lost the benefit of his personal leadership, a loss that was irreparable, but his influence was diminished by the charge that ambition had been his spring of action.

The

The success of the Relief party (henceforth known as the New Court party) did not bring tranquillity to the State. The new court fell into an undignified struggle with Achilles Sneed, clerk of the old court, for possession of his records. Bloodshed was narrowly avoided. The records were only obtained by violence. For this, the grand jury of Franklin county indicted the new court, its judges, and officers. The grand juries of several counties found indictments against the majority in the Legislature for passing the reorganization act. A motion to admit Madison C. Johnson to the Woodford bar, on faith of license granted by Boyle and Owsley, judges of the old court, after the new court was established, caused a heated debate. of a day or so in duration. The circuit judge, Jesse Bledsoe, evaded the question, and admitted Johnson as a matter of courtesy.

Meetings were held throughout the State, some to approve and others to condemn. Addresses were published by the minority in the Legislature, by the old court judges, and by Sneed, its clerk. Pamphlets, discussing the merits of the controversy, were published, and the newspapers were burdened with the theme. Barry and Haggin were charged with various irregularities affecting their integrity. Mills was denounced because, while Appellate judge, he had rendered some service as counsel in a case in which he had been attorney before his appointment. Barry, after he was commissioned, but before he was sworn in, defended a son of Governor Desha for highway robbery and murder. Mills went armed to prayer-meeting to defend himself, as he claimed, from apprehended violence. All these topics were extensively discussed. The old court kept open