Page:The Green Bag (1889–1914), Volume 11.pdf/208

 " The Old Court — New Court Controversy? it still had control of the Senate, which still refused to repeal the law creating the " New Court." A proposition from the Senate for a compromise court, to consist of three old and three new judges, was rejected as also a proposition that all judges of both courts resign and allow an entirely new court, equally divided as to political faith, to be appointed. The " Old Court " judges and their ad herents insisted that they were contending for a principle which involved the independ ence of the. judiciary and the consequent safety of the people. With this issue again before the people in August, 1826, the " Old Court " party was overwhelmingly victorious and at the next session of the legislature, on December 30, 1826, the laws abolishing the " Old Court " and establishing the " New Court" were repealed and order once more brought out of chaos. This repealing act is entitled " An Act to Remove Unconstitutional Obstructions thrown in the way of the Court of Appeals." It is prefixed to volume III. of T. B. Monroe's reports. The decisions of the " New Court " are reported in 2d T. B. Monroe's Reports, and are not regarded as of binding authority. They have never been cited by the Ken tucky Court of Appeals. For more than two years before this con flict ended, the issue joined was on the right of the legislature to eontrol the aetion of the judieiary. The obnoxious acts adjudged to have been void were repealed as to contracts made after June 1st, 1824, before the first at tempt to drive the fudges from offiee had been made. It may not be amiss, before concluding this review, to say something of the men who were prominent on both sides of the struggle just described. On the side of the "Old Court " may be mentioned Judges Boyle, Owsley, Mills and George Robertson, afterward Chief Justice Robertson. These were all men of national renown in their

185

time. They repeatedly declined honors and off1cial positions which were tendered them. Judge Boyle declined appointment as the first governor of Illinois, tendered him by President Madison, and after he resigned as chief justice of the Kentucky Court of Ap peals, he was appointed judge of the United States District Court for Kentucky. He twice declined recommendation for appoint ment on the bench of the United States Supreme Court to succeed Justices Todd and Trimble. Few men in the history of this country have enjoyed greater distinction than Chief Justice Robertson.. He served on the bench of the Court of Appeals in Kentucky for twenty years and was three times elected to Congress. He declined appointment as gov ernor of the territory of Arkansas offered him by President Monroe, and also declined the appointment as minister to the United States of Columbia, tendered by President Monroe, as well as the appointment of min ister to Peru, tendered by President Adams. He four times declined seats in the cabinet of various grades and twice declined a seat on the bench of the United States Supreme Court. On the " New Court " side of this contro versy among the most prominent leaders were George M. Bibb, John Rowan and William T. Barry. Judge Bibb was twice appointed upon the bench of the Kentucky Court of Appeals, was chief justice of that court and twice resigned his seat. He com piled Bibb's Kentucky Reports, covering de cisions during the period from 1808 to 18 17. He was twice elected to the United States Senate and was the first chancellor of the Louisville Chancery Court, in many respects the most important court of the State of Kentucky. He resigned his office as chan cellor to become secretary of the treasury in the cabinet of President Tyler. John Rowan was a member of the con vention that framed the second constitution of Kentucky in 1799. He was elected to