Page:The Green Bag (1889–1914), Volume 16.pdf/575

 522

they admit the power of the court to declare any law unconstitutional and void which is obviously and palpably so, feel themselves re luctantly constrained by the most solemn obligation of duty to themselves, to their constituents and posterity, and to the princi ples of rational liberty throughout the civi lized world, to make their deliberate protest against the erroneous and usurping doctrines of these Decisions." On December 24, 1824, the newly elected Legislature passed an act re-organizing the Court of Appeals. Its avowed purpose was to get rid of the judges who rendered the obnoxious opinions. The protests of the minority against these illegal measures were refused a place on the journals of both Houses. That minority, however, was great enough to save the judges of the Old Court from removal by impeachment, as would surely have been done, could their impeach ment have mustered a two-thirds vote. The oath required of the judges of the new court, stipulated they "will not bend to men in power." Among the ablest opponents of the re organization scheme in the Legislature, was Ben Hardin, uncle of Hon. Watt Hardin. whom Governor Bradley, Republican, de feated for governor. His argument against it, while eloquent and unanswerable, had it been addressed to impartial minds, also partook of extreme bitterness in its at tack on the opposite side. So intensified was the resentment he engendered, that at the close of the sitting as he emerged from the hall, he was stricken insensible by a blow on his head, from unknown hands, and was so carried to his room, and only re covered by a narrow margin. Governor Desha, elected as the new court candidate, promptly appointed the judges provided for in the re-organization ac*. These met and organized into a court. But the members of the Old Court were not of the stuff to yield their places without a

struggle. They repudiated the legislative enactment as unconstitutional. They held their own court as usual. Their mandates were in most cases obeyed. Then the new court solemnly recorded the old court to be in contempt and a nullity. It imprisoned the clerk of the Old Court for refusal to deliver up Records to their appointee. Then the Old Court declared the new appointee in contempt. The clerk of the Old Court went before the people in a stirring personal attack upon the new judges. Others took up the war fare in the prints, over such inspiring signa ture as the "Spirit of '76." The cry of assas sination was in the air, and one of the judges constantly wore his pistols, when he went to prayer meeting. The newspapers were full of the arguments of the opposing factions. Again the whole question went to the peo ple in the next popular election of 1825, and when the succeeding Legislature met, a re peal of the re-organization act passed the lower house by a good majority, but the hold-over members of the Senate defeated it. with the help of the casting vote of the Lieu tenant Governor. Public excitement there after climaxed into fever heat. Froth the old and the new court held regular sessions. A military force actually guarded the /ecords of the new court. Bloodshed seemed immi nent, but was prevented by the moderation and wisdom of the Old Court judges, in a new appeal they inaugurated to the people. The lawyers generally began to show dis trust of the new court; the election of 1826 gave a decided majority in both branches of the Legislature in favor of the Old Court, and at its first session, the re-organization act was speedily repealed, and the new court, with all its possibilities of danger to the pub lic welfare, stepped down. It lives today in tradition, and not by its records. Every actor in those stirring scenes has gone to his reward. The Repealing Act, passed in 1826, is found in full, in Monroe's