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CHAPTER XI.

JUDGE BREAKING.

HE relief law had been declared unconstitutional by the Court of Appeals, October 8, 1823. An elaborate petition for rehearing by Bibb kept the question uncertain for some time longer. But the rehearing was finally denied.

The relief movement had been rather a popular sentiment than an organized political factor until after the assembling of the Legislature of 1823. There had been discussion, but the friends and the opponents of the mooted measures had looked with equal hope to the Appellate Court for a decision favorable to their respective views. The vote in the matter of Judge Clark the previous year showed twenty-four majority favorable to the relief measures. A vote at the present session, when the Relief party had clearly defined itself, developed sixteen majority in the House. As illustrating the state of public feeling, it is noteworthy that Judge George Robertson, intense anti-relief, was chosen speaker at its organization. A month later such a thing would have been morally impossible. In that interval the loose-lying elements favorable to relief had suddenly developed as a compact and intensely partisan organization.

John Rowan, then a member from the county of Jefferson, was the Relief leader. He was of Scotch descent. Born near York, Pennsylvania, in 1773, his father, William Rowan, removed a year later to Louisville, then a small village. The following year he settled at Fort Vienna, on Green river. In youth he was disabled by disease, and was awhile a sickly boy, and on this account his father and brothers made unusual efforts to afford him a superior education, so that he might make his way in the world. With a view to the education of his children, William Rowan removed to Bardstown. There John, at seventeen, entered the school of Dr. Priestly, and soon became an accurate and classical scholar, noted for bright parts. He studie at Lexington with George Nicholas, a master of the law, and came to the bar at Bardstown in 1795. He soon attained high rank professionally. As an advocate in criminal cases he had few equals. As delegate to the State Constitutional Convention of 1799 from Nelson

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county he had performed his first public service.

After that he

removed to Frankfort, and became secretary of State under Governor Greenup in 1804.

He had been member of Congress one term (1807-9) from the Bardstown district, to which he had returned. Seven times was he elected to the Kentucky Legislature-five times from Nelson and twice from Jefferson. He had been appointed Judge of the Court of Appeals in 1819. By his services there he had maintained his character for learning. He resigned the judgeship in 1820. "His magnificent presence, his rotund and mellow voice," says a discriminating writer, referring to his course in the Relief Legislatures, "ready and apt flow of speech, and a manner that was at once noble and aggressive, gave him complete domination over the majority."* It does not appear that he had any legislative lieutenant equal to such a chief. He was of great learning and resources. Metaphysical yet forcible, imperious yet persuasive and earnest at all times, his equal could not be found in making 'the worse appear the better cause."

Ranking high in the Relief party was George M. Bibb, a profound lawyer, an ex-chief-justice of the Court of Appeals, and former United States Senator. Efficient co-workers were Barry, Kendall, and Blair. Barry, lieutenant-governor, had rare powers as a popular orator. His portrait strikingly resembles that of the eloquent Patrick Henry. Amos Kendall and Francis P. Blair, yet strangers to national fame, demonstrated the power of the press and the mightiness of the pen. The Relief party was in the majority, but the minority was respectable in numbers and formidable in talent and resources. Crittenden, Robertson, Green, Wickliffe, and Hardin were among the Anti-Relief leaders the last ranking with the foremost. Mr. Clay was understood to be in sympathy with them, but took no active part. He was absorbed by national affairs and ambitions. In a letter at this period expressed his purpose to "abjure Kentucky politics."

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After the obnoxious Appellate decision, the course to be pursued was a question of difficulty with the Relief leaders. Naturally, the people of the State were conservative. Aside from the respect due to its dignity and power, an able bench had given the Court of Appeals a strong hold on popular esteem. But so great was the prevailing excitement that the majority was ready to sanction any measure that would uphold the Relief laws. The juncture was critical. Something had to be done by the Relief leaders in deference to popular clamor-but what? A mistake could not be hazarded.

John Mason Brown.

A line of action was,

A vigilant minority was ready to profit by it. however, soon matured. The proceeding by address had failed in Clark's case. The Relief party, though in the majority, fell short of the necessary two-thirds, then and now. If "address" had been feasible, the question of its effect on the public mind was uncertain. There was danger of a shock. If the judges were removed, it was not certain how Governor Adair might fill their places. Adair had been long in public life, and had served his country in war and in peace. But he had been suspected by many of complicity with Burr, and thus public confidence in him had been weakened. He was now old. He adhered to the majority, but kept terms with the minority so well as to be regarded as an uncertain political quantity. So the majority argued that, before resorting to stones, some admonitory turf should be used. It was also necessary to educate the public mind in regard to some very difficult questions of law. It was not only necessary to show the error of the court, but also indispensable to let the people understand that, from the predicate, "the people rule," flowed certain deductions; that is, that the Legislature represented the people, that that body spoke through its majority, and that any executive or judicial obstruction of the will of that majority. uprooted free government. Pursuing this line of reasoning, Rowan, on December 10th, introduced some resolutions with a remarkable preamble. The resolutions covered less than a page, the preamble twenty-six.

The decision of the court was reviewed and combated with great ingenuity, and in a style of reasoning more fitted to mislead the ignorant than to convince the intelligent. In short, that preamble furnished the platform on which the new-court advocates planted themselves, and the reasons by which they defended their position. Its great length precludes its insertion here, but its historic value and its importance in showing the views of Rowan and his followers are sufficient apology for including it in Appendix.*

The resolutions denounced the decision as subversive of the dearest and most invaluable political rights, and stated that if it were not reversed, the Legislature ought not furnish any facilities for its. enforcement, but should withhold the agency of the ministerial officers in propagating its erroneous doctrines. "The Legislature," it was said, "should repeal laws believed to be constitutional, when not expedient, not the courts." The resolutions underwent a spirited discussion, after which they were adopted by a decided majority.

See Appendix, Note B.

The purpose of these resolutions was manifest. There was some hope that the court would reconsider and reverse its decision. Failing in this, aggressive steps were to be taken, if the people so decided. Formal platforms for political parties had theretofore been unknown. The "preamble" served such a purpose for the Relief party. To retain it in power was to endorse its platform.

In the election of 1824, a governor, lieutenant-governor, and members of the Legislature were to be chosen. Solomon P. Sharpe, writing from Shelbyville, in February, 1824, to a friend at Washington, said: "We are likely to have a warm contest for governor. The State will divide into two parties, Relief and Anti-Relief. The contest will be between Desha and Tompkins. I fear our State will undergo a degree of excitement and division of parties that may disturb it for years to come."

This letter was prophetic in more than one respect. The Relief party, as predicted, put forth Joseph Desha for governor, and Robert B. McAfee for lieutenant-governor. Christopher Tompkins and W. B. Blackburn represented Anti-Relief. In each county, the strongest men were brought out by each party for the Legislature. The contest was waged vigorously and ably throughout the State, and at the election, in August, the Relief party won. Only part of the senators were chosen. That body stood twenty-two Relief to sixteen AntiRelief.

In the House, sixty-one of the one hundred members belonged to the Relief party. The following vote in the gubernatorial contest illustrates the drift of popular feeling: Joseph Desha, 38, 378; Christopher Tompkins, 22,499; R. B. McAfee, 33,482; W. B. Blackburn, 25,382. Rowan was again chosen to the Legislature. The wellknown Robert J. Ward, from Scott, and Philip Triplett, from Daviess, were also members. The Anti-Relief party had lost in numbers but gained in ability. James Simpson, afterward judge of the Court of Appeals, represented Clark. Daniel Breck, also, subsequently, an Appellate judge, with Squire Turner, an eminent lawyer, was chosen from Madison. Henry Crittenden, afterward a congressman, was member from Shelby, Robert Wickliffe, from Fayette, and Ben Hardin and Ben Chapeze were elected for Nelson. George Robertson was again a member. Rarely has a legislative body averaged so well in talent.

The Legislature reassembled and organized November 1st. Robert J. Ward (Relief) was elected speaker.

The preamble and resolutions of the preceding session had in effect been approved by the people at the polls. The obnoxious decision, however, was still unreversed. The three judges, or the three "Kings" (as Relief partisans called them), stood out against the majority of the people. "Turf" had been tried without effect. It seemed that nothing but "stones" would dislodge them. December 20th, a long and fulminating preamble and resolutions, for the removal of the Appellate judges by address, were offered in the House. They did not, however, receive the requisite two-thirds majority, and so were lost. This result had been anticipated by the Senate. December 9th, that body had passed a bill to abolish all acts organizing the Court of Appeals, and provided for its reorganizing by a vote of twenty-two to sixteen. On the 20th, the House began the consideration of the Senate bill for reorganization. It was discussed with great spirit and ability for three days. The Constitution had established the Court of Appeals, but left the Legislature to organize it, by fixing the number of judges. The Legislature had, long ago, passed acts for this purpose. These, it was contended, it might repeal. It had reduced the number of judges from four to three, in 1812. The voluntary resignation of the fourth judge had, at that time, prevented controversy. The Constitution provided that the judges should be appointed by the governor, by advice of the Senate, and hold office during good behavior. So it was argued that a judge could not be "repealed" out of office.

Mr. Hardin closed the debate on the Anti-Relief side. He began speaking at nine o'clock, the evening that the bill passed. The final vote occurred at midnight. The following is Mr. Hardin's speech:

"MR. SPEAKER: The late hour of the night, the protracted period of the discussion, the impatience of the House to get the question-all unite and combine to embarrass me. That embarrassment is heightened by my belief and opinion that a majority in this House is pre-determined to pass this bill, and that any and everything I can say will be of no avail; but, in the language of the man of God who ministers at the sacred altar, if I can, in this good and great cause, make one convert, nay, even bring one man to reflect seriously, I shall be amply paid and compensated for all my labor. But, alas! my efforts, I fear, will be as vain as those of the boy who attempts to find where the bow that spans the arch of heaven reaches the ground.

"In this contest, we have been denominated judge supporters and the Court party. As for myself, I, in the presence of this crowded and august assembly, with uplifted hands, deny the charge. No ties of ancient hospi