Page:The Green Bag (1889–1914), Volume 11.pdf/204

 "The Old Court — New Court Controversy? turnable one hundred and twenty days after coming to the sheriff's hands. The effect of all this legislation was simply to compel a creditor to take his debt in de preciated paper currency worth only half its face value, or to wait two years before get ting any of it, taking the chances of both principal debtor and his surety in the re plevin bond being utterly insolvent at the ex piration of that time. Indeed, the policy of the laws allowed a replevin upon a replevin, amounting in all to a delay of four years. Of course, the creditors protested vigorously against the enactment and enforcement of any such laws and the matter was speedily carried into the courts. Many of the credit ors resided in Philadelphia. The United States Bank was also located there and all the Philadelphia creditors combined to secure the defeat of these laws, so seriously affecting their rights. They were represented in the United States courts by Messrs. John Ser geant of Philadelphia and Langdon Cheves of South Carolina, two of the most eminent lawyers in America. Before long the question came up before the State courts. In 1822 Judge Clark of the Bourbon Circuit Court, in the case of Wil liams v. Blair, promptly declared the endorse ment and replevin laws unconstitutional and void as to contracts made before their pass age. The legislature was then in session, and an attempt was made to remove him from office, which failed because some of the leaders thought best to wait until the highest court of the State had reviewed his judg ment. About the same time the General Court, in the case of Lapsley v. Brashear, had up held the constitutionality of these laws and both cases came before the Court of Appeals at the same time. Threats of legislative ven geance and popular revolution were freely indulged in for the purpose of influencing that tribunal — but all in vain. On October 8th, 1823, the Court of Ap peals affirmed the case of Blair v. Williams

181

and reversed Lapsley v. Brashear and held the obnoxious laws unconstitutional, the judges all concurring and each delivering an opinion. This precipitated open war by the legislature upon the judiciary. It is curious to note that in the two cases which brought on these difficulties, the debtors were represented by ex-Chief Jus tice Bibb, Haggin, Barry and Rowan, while the creditors were represented by Wickliffe, Harrison and Breckinridge. In the troubles that ensued, Bibb, Haggin, Barry and Rowan took the most active part against the " Old Court," while Wickliffe was its most promi nent defender. Can it be that their views on this question were influenced by their zeal in behalf of their clients? When the legislature met about the first of December, 1823, it protested against the decision of the Court of Appeals; but the people in the August election previous had not anticipated that the court would dis regard their threats, and so it happened that a majority against the court was wanting and nothing could be done in that session. At the elections in August, 1824, the questions came before the people again, and Gen. Joseph Desha, by a large popular ma jority, was elected governor on a platform which called for the removal of the judges from office. The same ticket had a large majority in the legislature, and at the session of 1824 an attempt was made to remove the judges by address. One of the most excit ing struggles ever known in a parliamentary body then ensued. For days the contest was protracted, but at last the attempt failed for lack of a two-thirds majority, the vote standing sixty-one to thirty-eight in the House, and twenty-three to twelve in the Senate. The opponents of the judges charged treachery on the part of four or five members in the House and one in the Senate, and claimed that if the voice of the people had been obeyed, the vote would have stood sixty-eight to thirty-two in the House and