Old Court-New Court controversy
Encyclopedia
The Old Court – New Court controversy was a 19th century political controversy in the U.S.
state of Kentucky
in which the Kentucky General Assembly
abolished the Kentucky Court of Appeals
and replaced it with a new court. The old court refused to recognize the action as valid, and for a time, two separate courts acted as the court of last resort
for the state.
The controversy began when the financial Panic of 1819
left many Kentuckians in debt and unable to meet their financial obligations. A debt relief movement began in the state, and pro-relief candidates won majorities in the General Assembly in 1820. The Assembly passed a law of replevin
that was extremely favorable to debtors. Disgruntled creditors challenged the constitutionality of the law, appealing their case to the Court of Appeals. The court opined in favor of the creditors. Attempts to remove the anti-relief justices failed, so the pro-relief legislature passed a measure abolishing the Court of Appeals and replacing it with a new court, which pro-relief governor
Joseph Desha
stocked with pro-relief justices who upheld the replevin law.
As the economic situation in the state improved in the second half of the 1820s, the Old Court supporters regained control of both houses of the General Assembly. They abolished the New Court and restored the Old Court to power. Later court cases nullified decisions rendered by the New Court and struck them from Kentucky common law
.
. In Kentucky, rapid population growth and strong demand for the state's goods led to land speculation
becoming a popular enterprise. The charter of the Kentucky Insurance Company in 1802 and the Bank of Kentucky in 1806 made currency for loans plentiful. The establishment of branches of the Second Bank of the United States
in Louisville
and Lexington
further augmented the availability of credit. In 1818, the General Assembly chartered 40 more state banks, and later added six more.
In late 1818, however, demand for U.S. goods fell sharply in Europe. Land values also began to fall, touching off the Panic of 1819. Many Kentuckians found themselves unable to repay their loans. A struggle began between creditors seeking to collect money owed to them and debtors seeking relief from obligations they could not meet. A Debt Relief Party sprang up in a state that had long been a single-party bastion.
In 1819, Governor Gabriel Slaughter
agreed to repeal the charters of the 46 banks—now known as "The Forty Thieves" —established by the General Assembly. He concurred when the General Assembly abolished damages on disputed bills of exchange
.
On November 29, 1820, the Assembly chartered the Bank of the Commonwealth, another source from which debtors could obtain money. Creditors did not want to accept payment from either the Bank of Kentucky or the Bank of the Commonwealth; the notes of the former were depreciated
due to a lack of capital
and the latter had no capital and no guarantee of state credit. In December 1820, the Assembly modified the replevin law to state that creditors who would accept payment in notes from the Bank of the Commonwealth but not the Bank of Kentucky would be forced to wait three months to collect on a debt. The wait was one year if the creditor accepted only notes from the Bank of Kentucky, and it remained two years for creditors who would not accept notes from either.
By 1821, the Relief Party had successfully ended the practice of debt imprisonment in Kentucky. In December 1822, the party became so dissatisfied with the sound money practices of the Bank of Kentucky that they revoked its charter.
circuit court
judge James Clark
ruled in the case of Williams v. Blair that the replevin law violated the state
and federal constitutions
. This ruling was so unpopular with the Relief Party that they attempted to remove him from office, but the 59–35 vote fell just short of the needed two-thirds majority. Fayette County
circuit court judge Francis P. Blair issued a similar ruling in the case of Lapsley v. Brashear.
Both cases were appealed to the Kentucky Court of Appeals—then the highest court in Kentucky—in 1823. In the case of Blair, the debt relief position was argued by George M. Bibb
, while the anti-relief position was represented by Robert Wickliffe. In Lapsley, Wickliffe joined George Robertson
and Ben Hardin to represent the anti-relief position, while the relief position was argued by John Rowan and William T. Barry
. Chief Justice John Boyle
wrote the majority opinion in Blair on October 8, 1823, and Associate Justice William Owsley
issued the court's opinion in Lapsley three days later. In both cases, the anti-relief position was upheld.
, a Relief Party supporter, urged the resistance, framing the issue as the court impeding the right of the people to self-govern. His efforts drew a resolution against him from the anti-relief minority on November 8, 1823.
Frustrated by their defeats in the judiciary, the Relief Party turned its attention to the gubernatorial election of 1824, where they backed General
Joseph Desha
. Desha's election by the overwhelming vote of 38,378–22,499 was seen by the party as a mandate to pursue the relief agenda. An early proposal to reduce the salaries of the Court of Appeals justices to 25 cents per year was discarded without a vote, but the House of Representatives
did muster the votes to remove the offending justices. The justices were spared removal when the Senate
failed to pass the measure with a two-thirds majority. The vote was 23–12.
On December 9, 1824, the Senate voted to repeal the law that had established the Court of Appeals and to establish a new Court of Appeals with four justices. The measure came to the House floor on December 23. During the debate, Governor Desha personally lobbied legislators to support the measure, a blatant violation of the rules of the House. Nevertheless, the next day the measure passed in the House by a vote of 54–43. Governor Desha appointed pro-relief stalwart William T. Barry
as Chief Justice. The three associate justices were also Relief Party supporters.
The existing court and the anti-relief party refused to recognize the new court as valid. Achilles Sneed, clerk of the Old Court, refused a legislative mandate to turn over his records to the New Court by January 1825. Francis Blair, the New Court clerk, assembled a group that broke into Sneed's office and took what records they could find there. Sneed was charged with contempt of court
and fined for refusing to turn over the records. The Old Court continued to meet in a church in Frankfort; Kentucky had two supreme courts and the possibility of civil war loomed.
Robert B. McAfee
. In December, the committee returned a report declaring that the Old Court justices were "constitutional judges" and consequently, the legislature did not have power to abolish their positions. The best the Old Court supporters were able to do in 1825 was to pass a non-binding resolution condemning the reorganization act.
By 1826, economic prosperity was beginning to return to the state. The Old Court party augmented their majority in the House and gained a majority in the Senate. One legislator's proposition to resolve the controversy was to call for the resignation of the governor and lieutenant governor, the entire General Assembly, as well as the justices from both the Old and New Courts, essentially allowing the state to reset its entire government. This extreme measure was rejected. Instead, on December 29, 1826, the General Assembly repealed the reorganization act, and overrode Governor Desha's veto
of the measure. They also repealed the replevin law that touched off the controversy to begin with. On January 1, 1827, Francis Blair returned the court records in his possession to the Old Court.
Old Court chief justice John Boyle resigned to accept a federal judgeship, and the General Assembly decided to speed the reconciliation of the two sides of the controversy by naming New Court partisan George Bibb as Boyle's replacement. Old Court justices Mills
and Owsley resigned, hoping to clarify the situation further. They were immediately reappointed, but the Senate refused to confirm their appointments. Instead, George Robertson and Joseph R. Underwood
were appointed and confirmed.
In all, the New Court heard 77 cases during the Old Court - New Court controversy. In the April 1829 case of Hildreth's Heirs v. McIntire's Devisees, the reconstituted Court of Appeals declared all of these decisions void. In 1935, in Smith v. Overstreet’s Adm’r,
the court formally ruled that the decisions were not part of the common law of Kentucky.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
state of Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
in which the Kentucky General Assembly
Kentucky General Assembly
The Kentucky General Assembly, also called the Kentucky Legislature, is the state legislature of the U.S. state of Kentucky.The General Assembly meets annually in the state capitol building in Frankfort, Kentucky, convening on the first Tuesday after the first Monday in January...
abolished the Kentucky Court of Appeals
Kentucky Court of Appeals
The Kentucky Court of Appeals is the lower of Kentucky's two appellate courts, under the Kentucky Supreme Court. Prior to a 1975 amendment to the Kentucky Constitution the Kentucky Court of Appeals was the only appellate court in Kentucky....
and replaced it with a new court. The old court refused to recognize the action as valid, and for a time, two separate courts acted as the court of last resort
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
for the state.
The controversy began when the financial Panic of 1819
Panic of 1819
The Panic of 1819 was the first major financial crisis in the United States, and had occurred during the political calm of the Era of Good Feelings. The new nation previously had faced a depression following the war of independence in the late 1780s and led directly to the establishment of the...
left many Kentuckians in debt and unable to meet their financial obligations. A debt relief movement began in the state, and pro-relief candidates won majorities in the General Assembly in 1820. The Assembly passed a law of replevin
Replevin
In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the...
that was extremely favorable to debtors. Disgruntled creditors challenged the constitutionality of the law, appealing their case to the Court of Appeals. The court opined in favor of the creditors. Attempts to remove the anti-relief justices failed, so the pro-relief legislature passed a measure abolishing the Court of Appeals and replacing it with a new court, which pro-relief governor
Governor of Kentucky
The Governor of the Commonwealth of Kentucky is the head of the executive branch of government in the U.S. state of Kentucky. Fifty-six men and one woman have served as Governor of Kentucky. The governor's term is four years in length; since 1992, incumbents have been able to seek re-election once...
Joseph Desha
Joseph Desha
Joseph Desha was a U.S. Representative and the ninth Governor of Kentucky. Desha was the first Kentucky governor not to have served in the Revolutionary War. He did, however, serve under William Henry Harrison and "Mad" Anthony Wayne in the Northwest Indian War, and lost two brothers in battle...
stocked with pro-relief justices who upheld the replevin law.
As the economic situation in the state improved in the second half of the 1820s, the Old Court supporters regained control of both houses of the General Assembly. They abolished the New Court and restored the Old Court to power. Later court cases nullified decisions rendered by the New Court and struck them from Kentucky common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Background
A period of national prosperity followed the end of the War of 1812War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...
. In Kentucky, rapid population growth and strong demand for the state's goods led to land speculation
Speculation
In finance, speculation is a financial action that does not promise safety of the initial investment along with the return on the principal sum...
becoming a popular enterprise. The charter of the Kentucky Insurance Company in 1802 and the Bank of Kentucky in 1806 made currency for loans plentiful. The establishment of branches of the Second Bank of the United States
Second Bank of the United States
The Second Bank of the United States was chartered in 1816, five years after the First Bank of the United States lost its own charter. The Second Bank of the United States was initially headquartered in Carpenters' Hall, Philadelphia, the same as the First Bank, and had branches throughout the...
in Louisville
Louisville, Kentucky
Louisville is the largest city in the U.S. state of Kentucky, and the county seat of Jefferson County. Since 2003, the city's borders have been coterminous with those of the county because of a city-county merger. The city's population at the 2010 census was 741,096...
and Lexington
Lexington, Kentucky
Lexington is the second-largest city in Kentucky and the 63rd largest in the US. Known as the "Thoroughbred City" and the "Horse Capital of the World", it is located in the heart of Kentucky's Bluegrass region...
further augmented the availability of credit. In 1818, the General Assembly chartered 40 more state banks, and later added six more.
In late 1818, however, demand for U.S. goods fell sharply in Europe. Land values also began to fall, touching off the Panic of 1819. Many Kentuckians found themselves unable to repay their loans. A struggle began between creditors seeking to collect money owed to them and debtors seeking relief from obligations they could not meet. A Debt Relief Party sprang up in a state that had long been a single-party bastion.
In 1819, Governor Gabriel Slaughter
Gabriel Slaughter
Gabriel Slaughter was the seventh Governor of Kentucky and was the first person to ascend to that office upon the death of the sitting governor. His family moved to Kentucky from Virginia when he was very young. He became a member of the Kentucky militia, serving throughout his political career...
agreed to repeal the charters of the 46 banks—now known as "The Forty Thieves" —established by the General Assembly. He concurred when the General Assembly abolished damages on disputed bills of exchange
Negotiable instrument
A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time. According to the Section 13 of the Negotiable Instruments Act, 1881 in India, a negotiable instrument means a promissory note, bill of exchange or cheque payable either...
.
Beginning of the controversy
The Debt Relief Party gained majorities in both houses of the General Assembly in 1820. On February 11, 1820, the Assembly passed a law of replevin, or "stay law," that prevented creditors from seeking court order for payment of a debt for a period of one year. They hoped that this would provide time for an economic recovery which would allow debtors to save their investments. If the creditor would not accept bank notes issued by the Bank of Kentucky, he was forced to wait an additional year to collect the debt.On November 29, 1820, the Assembly chartered the Bank of the Commonwealth, another source from which debtors could obtain money. Creditors did not want to accept payment from either the Bank of Kentucky or the Bank of the Commonwealth; the notes of the former were depreciated
Depreciation
Depreciation refers to two very different but related concepts:# the decrease in value of assets , and# the allocation of the cost of assets to periods in which the assets are used ....
due to a lack of capital
Capital (economics)
In economics, capital, capital goods, or real capital refers to already-produced durable goods used in production of goods or services. The capital goods are not significantly consumed, though they may depreciate in the production process...
and the latter had no capital and no guarantee of state credit. In December 1820, the Assembly modified the replevin law to state that creditors who would accept payment in notes from the Bank of the Commonwealth but not the Bank of Kentucky would be forced to wait three months to collect on a debt. The wait was one year if the creditor accepted only notes from the Bank of Kentucky, and it remained two years for creditors who would not accept notes from either.
By 1821, the Relief Party had successfully ended the practice of debt imprisonment in Kentucky. In December 1822, the party became so dissatisfied with the sound money practices of the Bank of Kentucky that they revoked its charter.
Williams v. Blair and Lapsley v. Brashear
Forced to choose between accepting depreciated money in payment for outstanding debts or waiting long times to collect debts, creditors turned to the courts for relief. In 1822, Bourbon CountyBourbon County, Kentucky
Bourbon County is a county located in the U.S. state of Kentucky. It is the remnant of what was previously a much larger Bourbon County, established as part of Virginia in 1785, and comprising what are now thirty-four modern Kentucky counties...
circuit court
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...
judge James Clark
James Clark (Kentucky)
James Clark was a 19th-century American politician who served in all three branches of Kentucky's government and in the U.S. House of Representatives. His political career began in the Kentucky House of Representatives in 1807...
ruled in the case of Williams v. Blair that the replevin law violated the state
Kentucky Constitution
The Constitution of the Commonwealth of Kentucky is the document that governs the Commonwealth of Kentucky. It was first adopted in 1792 and has since been rewritten three times and amended many more...
and federal constitutions
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. This ruling was so unpopular with the Relief Party that they attempted to remove him from office, but the 59–35 vote fell just short of the needed two-thirds majority. Fayette County
Fayette County, Kentucky
Fayette County is a county located in the U.S. state of Kentucky. The population was 295,083 in the 2010 Census. Its territory, population and government are coextensive with the city of Lexington, which also serves as county seat....
circuit court judge Francis P. Blair issued a similar ruling in the case of Lapsley v. Brashear.
Both cases were appealed to the Kentucky Court of Appeals—then the highest court in Kentucky—in 1823. In the case of Blair, the debt relief position was argued by George M. Bibb
George M. Bibb
George Mortimer Bibb was an American politician.Bibb was born in Prince Edward County, Virginia, attended Hampden-Sydney College and graduated from the College of William & Mary, then studied law. He was admitted to the bar and practiced law in Virginia and Lexington, Kentucky...
, while the anti-relief position was represented by Robert Wickliffe. In Lapsley, Wickliffe joined George Robertson
George Robertson (congressman)
George Robertson was a U.S. Representative from Kentucky.-Early life:Born near Harrodsburg, Kentucky, Robertson pursued preparatory studies and attended Transylvania University, Lexington, Kentucky, until 1806...
and Ben Hardin to represent the anti-relief position, while the relief position was argued by John Rowan and William T. Barry
William T. Barry
William Taylor Barry was an American statesman and jurist.-History:Born near Lunenburg, Virginia, he moved to Fayette County, Kentucky, in 1796 with his parents John Barry, an American Revolutionary War veteran, and Susannah Barry...
. Chief Justice John Boyle
John Boyle (congressman)
John Boyle was a United States federal judge and a member of the U.S. House of Representatives....
wrote the majority opinion in Blair on October 8, 1823, and Associate Justice William Owsley
William Owsley
William Owsley was an associate justice on the Kentucky Court of Appeals and the 16th Governor of Kentucky. He also served in both houses of the Kentucky General Assembly and was Kentucky Secretary of State under Governor James Turner Morehead.Owsley studied law under John Boyle...
issued the court's opinion in Lapsley three days later. In both cases, the anti-relief position was upheld.
Formation of the New Court
The Assembly passed resolutions against all three justices on the Court of Appeals, but did not possess the two-thirds majority to remove them. Governor John AdairJohn Adair
John Adair was an American pioneer, soldier and statesman. He was the eighth Governor of Kentucky and represented the state in both the U.S. House and Senate. Adair enlisted in the state militia and served in the Revolutionary War, where he was held captive by the British for a period of time...
, a Relief Party supporter, urged the resistance, framing the issue as the court impeding the right of the people to self-govern. His efforts drew a resolution against him from the anti-relief minority on November 8, 1823.
General
A general officer is an officer of high military rank, usually in the army, and in some nations, the air force. The term is widely used by many nations of the world, and when a country uses a different term, there is an equivalent title given....
Joseph Desha
Joseph Desha
Joseph Desha was a U.S. Representative and the ninth Governor of Kentucky. Desha was the first Kentucky governor not to have served in the Revolutionary War. He did, however, serve under William Henry Harrison and "Mad" Anthony Wayne in the Northwest Indian War, and lost two brothers in battle...
. Desha's election by the overwhelming vote of 38,378–22,499 was seen by the party as a mandate to pursue the relief agenda. An early proposal to reduce the salaries of the Court of Appeals justices to 25 cents per year was discarded without a vote, but the House of Representatives
Kentucky House of Representatives
The Kentucky House of Representatives is the lower house of the Kentucky General Assembly. It is composed of 100 Representatives elected from single-member districts throughout the Commonwealth. Not more than two counties can be joined to form a House district, except when necessary to preserve...
did muster the votes to remove the offending justices. The justices were spared removal when the Senate
Kentucky Senate
The Kentucky Senate is the upper house of the Kentucky General Assembly. The Kentucky Senate is composed of 38 members elected from single-member districts throughout the Commonwealth. There are no term limits for Kentucky Senators...
failed to pass the measure with a two-thirds majority. The vote was 23–12.
On December 9, 1824, the Senate voted to repeal the law that had established the Court of Appeals and to establish a new Court of Appeals with four justices. The measure came to the House floor on December 23. During the debate, Governor Desha personally lobbied legislators to support the measure, a blatant violation of the rules of the House. Nevertheless, the next day the measure passed in the House by a vote of 54–43. Governor Desha appointed pro-relief stalwart William T. Barry
William T. Barry
William Taylor Barry was an American statesman and jurist.-History:Born near Lunenburg, Virginia, he moved to Fayette County, Kentucky, in 1796 with his parents John Barry, an American Revolutionary War veteran, and Susannah Barry...
as Chief Justice. The three associate justices were also Relief Party supporters.
The existing court and the anti-relief party refused to recognize the new court as valid. Achilles Sneed, clerk of the Old Court, refused a legislative mandate to turn over his records to the New Court by January 1825. Francis Blair, the New Court clerk, assembled a group that broke into Sneed's office and took what records they could find there. Sneed was charged with contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
and fined for refusing to turn over the records. The Old Court continued to meet in a church in Frankfort; Kentucky had two supreme courts and the possibility of civil war loomed.
Resolution of the controversy
The Old Court supporters won control of the Kentucky House of Representatives in the elections of 1825. When the General Assembly's session opened in November 1825, Old Court partisans immediately formed a committee to make recommendations regarding the future of the court of appeals. On November 23, Old Court supporters introduced a bill to repeal the reorganization act. The measure passed the House, but failed in the Senate, where Old Court and New Court supporters were equal in number and the deciding vote was cast by Lieutenant GovernorLieutenant Governor of Kentucky
The office of lieutenant governor of Kentucky has existed under the last three of Kentucky's four constitutions, beginning in 1797. The lieutenant governor serves as governor of Kentucky under circumstances similar to the Vice President of the United States assuming the powers of the presidency...
Robert B. McAfee
Robert B. McAfee
Robert Breckinridge McAfee was a Kentucky politician, and was the eighth Lieutenant Governor of Kentucky serving from 1824 to 1828....
. In December, the committee returned a report declaring that the Old Court justices were "constitutional judges" and consequently, the legislature did not have power to abolish their positions. The best the Old Court supporters were able to do in 1825 was to pass a non-binding resolution condemning the reorganization act.
By 1826, economic prosperity was beginning to return to the state. The Old Court party augmented their majority in the House and gained a majority in the Senate. One legislator's proposition to resolve the controversy was to call for the resignation of the governor and lieutenant governor, the entire General Assembly, as well as the justices from both the Old and New Courts, essentially allowing the state to reset its entire government. This extreme measure was rejected. Instead, on December 29, 1826, the General Assembly repealed the reorganization act, and overrode Governor Desha's veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
of the measure. They also repealed the replevin law that touched off the controversy to begin with. On January 1, 1827, Francis Blair returned the court records in his possession to the Old Court.
Old Court chief justice John Boyle resigned to accept a federal judgeship, and the General Assembly decided to speed the reconciliation of the two sides of the controversy by naming New Court partisan George Bibb as Boyle's replacement. Old Court justices Mills
Benjamin Mills
Benjamin Mills was a lawyer and judge who served in the Kentucky Circuit Courts and the Kentucky Court of Appeals. He also represented Bourbon County, Kentucky, in the Kentucky House of Representatives. Mills issued a significant ruling in the 1820 case of Rankin v. Lydia which dealt with the...
and Owsley resigned, hoping to clarify the situation further. They were immediately reappointed, but the Senate refused to confirm their appointments. Instead, George Robertson and Joseph R. Underwood
Joseph R. Underwood
Joseph Rogers Underwood was a lawyer, judge, United States Representative and Senator from Kentucky....
were appointed and confirmed.
In all, the New Court heard 77 cases during the Old Court - New Court controversy. In the April 1829 case of Hildreth's Heirs v. McIntire's Devisees, the reconstituted Court of Appeals declared all of these decisions void. In 1935, in Smith v. Overstreet’s Adm’r,
the court formally ruled that the decisions were not part of the common law of Kentucky.