" The Old Court — New Court Controversy?
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"THE OLD COURT — NEW COURT CONTROVERSY." By John C. Doolan, of the Lou1sv1lle, Ky., Bar. WHAT is known in Kentucky as the controversy between the " Old Court" and the " New Court," ended in the triumph of the "Old Court," the supremacy of the constitution and the establishment of prin ciples, which make possible the success of popular government. Had the first voice of the people been mistaken for the voice of God — had three men been less patriotic and more subservient to popular clamor, the re sult would have been different, and Ken tucky's experiment in self-government might have served as a warning to her sister States and to the world at large. This remarkable contest occupied the at tention of the people of Kentucky and, in deed, of the whole country for nearly five years — from 182 1 to 1826. Its importance was magnified by the fact that it was almost the first and was certainly the fiercest con flict in the history of our government be tween the two coordinate departments, the legislature and the judiciary. Owing to conditions unnecessary to men tion at this time, the people of Kentucky had during the first administration of Presi dent Monroe, plunged into a career of spec ulation that in a few years resulted in almost universal bankruptcy. In obedience to the clamors of the popu lace, the legislature had passed a law for the benefit of debtors, giving them a right of replevin for two years upon debts (though reduced to judgment and execution), unless the creditor would consent to receive in pay ment a depreciated currency. Manifestly we would say this worked a material change in the effect of the contract between the parties and was an impairment of the obligation of that contract and, therefore, a violation of natural justice as well as of the Constitution of the United States which forbade the pas
sage of such a law by the States. The situa tion, however, was deplorable; the people were desperate. They found the legislature and the executive such willing servants that they hardly expected anything else from the judiciary. Of course such a law soon came before the courts, and it was speedily declared un constitutional by the Court of Appeals and, bad as the policy of such a law may have been, all questions about it were soon lost to view in the assaults now made upon the court that had dared to thwart the popular will. The judges of the " Old Court " were John Boyle, William Owsley and Benjamin Mills. They held their offices by appointment for life, or during good behavior, and could be removed only by impeachment or by address — in either case upon a two-thirds vote, and, • while their opponents had a large popular majority, they did not have the two-thirds vote in the legislature required by the Constitution. The legislature finding itself unable to remove the judges, made a bolder attempt to abolish the eourt and claimed the right to pass that measure by a bare major ity. With calm dignity the judges held that the attack on the court was an attack upon the Constitution and, through it, upon the liberties of the people, and this act too they declared to be null and void. Nevertheless the governor sanctioned it and appointed, as the four judges provided for in the act establishing a new court, William T. Barry, Chief Justice (afterwards Postmaster General under President Jackson), James Haggin, John Trimble and Rezin H. Davidge as as sociate judges. The "New Court" organized and for nearly two years assumed authority as the Court of Appeals of the State. Francis P
