THE OLD AND THE NEW COURT. A Kentucky Judicial Episode. BY PHILIP LINDSLEY, Of the Dallas, Texas, Bar.
OVER three-quarters of a century ago, a civic storm raged with unprecedented violence over the State of Kentucky, fraught with dangers and consequences of the grav est character. As the writer found, in a win ter's sojourn in Kentucky in 1897-8, even after so long a lapse of time, the exciting scenes and events of this judicial episode, happily unparalleled either before or since in this country, were still a topic of conver sation. In defiance of the Constitution an attempt was made by the Legislature, a coordinate department, to supplant the old Court of Ap peals by a new court. The grand juries of several counties found indictments against the majority of the Legislature for passing a "re-organization" act. Judges of the Court of Appeals armed themselves when they at tended prayer meeting; a member of the Legislature was stricken down by the hand of violence as he left the hall, for words ut tered in debate; three State elections, con ducted with intense bitterness, widespread financial ruin, public discontent and distrust, bordering on warfare, were some of the fea tures of this civic storm. The moving cause of this controversy was an Act of the Kentucky Legislature of 1820. It provided that a plaintiff, on issuing an execution on his judgment, could endorse thereon that he will take paper of the Bank of the Commonwealth of Kentucky, in dis charge of it; and in case he failed to do so, that the defendant may replevy the debt for two years. This Act was declared unconsti tutional by the trial court of Clarke County, and Judge Clarke, who presided, was sum moned to appear before the Legislature, in special session, that he might be removed.
But this summary proceeding happily failed. In Blair v. Williams, Vol. 4, Littell's Ky. Reports (1824), p. 34, it was urged this Act of the Kentucky Legislature was violative ot the clause in the Federal Constitution : "That no State shall pass any law impairing the obligation of contracts." The learned court holds the contract between the parties in that case to be indisputably within the true meaning of this clause, and says: "There are but two questions which arise on this branch of the subject; first, what is the obligation of the contract between the parties in this case, and, secondly, does the Act of the Leg islature in question impair that obligation?" The court knew its decision would run counter to a wild clamor of then highlyexcited public opinion, in which the debtor class were largely in the majority. And so the decision is supported by the ablest rea soning, ft goes into the distinction of per fect and imperfect obligations, and notes the difference between moral and legal duty. It shows the connection between legal remedy and constitutional right. It suffers nothing by comparison with Chief Justice Taney's opinion, on the same subject, in Bronson v. Kinzie, i How. 311. An able and distin guished Kentucky lawyer, now dead, John Mason Brown, said, "It is fairly entitled to the praise of being a handsome and polished metaphysical essay." The decision in Blair v. Williams and Lapsley r. Brashears, both decided the same term by the same court, was to the effect that this Act was unconstitutional. The political excitement which these decisions caused, is better understood by referring to the financial condition of Kentucky at that time.
