Two hostile parties sprang into being, the one powerful and threatening extreme measures, the other weaker, but firm and undaunted. The judges of the Court of Appeals were the special objects of denunciation and attack by the dominant party. To their defense rallied the minority. For awhile its efforts were unavailing to stay the popular tide. But it heroically bided its time amid repeated defeats in full faith of the final triumph of the eternal principles of justice and right.

The Appellate bench at the time was occupied by John Boyle, chief-justice, and Benjamin Mills and William Owsley, associate justices. As the ordeal on which they were about to enter was the most critical through which judges were ever called to pass, something more than a word about them will be of interest.

William Owsley was born in Virginia, in 1782. The next year his father emigrated to Kentucky and settled on the waters of Drake's creek, near Crab Orchard. His early life was uneventful and obscure. By some means he obtained a fair education, taught school, acted as deputy surveyor, and, also, deputy for his father-then sheriff. Encouraged by Chief-Justice Boyle, then practicing law at Lancaster, he entered the office of the latter as a student, and, in due time, received license and was admitted to the Garrard bar. He was early successful, both in obtaining practice and reputation—Boyle proving a helpful and faithful friend. He practiced in many counties, as was the custom of the profession at that day. Hardin first knew him at Richmond, while he was attending the Madison court, during his early years at the bar. He represented Garrard county in the Kentucky House of Representatives in 1809 and 1811, in the latter year Hardin being his colleague from Nelson. April 8, 1810, he was appointed by Governor Charles Scott, judge of the Court of Appeals, but on account of a reduction of the number of the judges from four to three, he shortly resigned. On the happening of a vacancy, however, he was, in 1813, again appointed by Governor Shelby.

He, like his friend, preceptor, and associate, Boyle, was charged with an adherence to the precedents of the English common law, inconsistent with its proper adaptation to the litigation of a new country and a Republican government. Otherwise, he was an unexceptionable judge.

Benjamin Mills was a native of Worcester county, Maryland, born January 12, 1779. His family emigrated to the neighborhood of Washington, Pennsylvania, where he obtained his education and

studied medicine. He was awhile president of Washington Academy -afterward noted as Washington College. Removing with his father to Bourbon county, Kentucky, he quit medicine for the law, and as early as 1806 was admitted to practice at Paris. His ability and diligence soon brought him a good practice in the surrounding country. He was chosen to the House of Representatives of the State, serving six years-1806, 1809, 1813, 1814, 1815, and 1816. In the latter year, Isham Talbot defeated him, by three votes only, for the United States Senate. In 1817 he was appointed circuit judge, by Governor Slaughter, who, in February, 1820, commissioned him Appellate judge, as successor of John Rowan, resigned. Judge Mills was not personally popular, but his integrity was beyond question, and his attainments extensive and profound.

John Boyle, the chief-justice, although the elder of his associates, was enjoying the prime of superior faculties. He was humbly born. October 28, 1774, at Castle Woods, on Clinch river, Va. In 1779 his father emigrated to Whitley's station, in Kentucky, and a few years afterward, when the protection of the stations was abandoned, settled on a farm in Garrard county, where his life was spent. Judge Boyle's earlier education was good, and, subsequently, he was instructed in Greek and Latin and the useful sciences by Rev. Samuel Finley, a Presbyterian clergyman. He studied law in Mercer county under the direction of Thomas Davis, a distinguished lawyer and politician, and removed to Lancaster and began practice in 1797. In 1800 he represented Garrard county in the Legislature, and in 1802 was a member of Congress. He was twice re-elected without opposition and declined a fourth term. By appointment of President Madison he served as territorial governor of Illinois in 1808-9. Returning to Kentucky he was tendered a circuit judgeship, which he declined, but in April, 1809, accepted the appointment of associate judge of the Appellate Court. The circumstances of his appointment to the Appellate judgeship are interesting. Governor Scott had appointed Ninian Edwards associate justice of the Court of Appeals. Edwards had made large landed investments in Illinois, and for that reason desired to remove thither. Boyle was discontented with the governorship-whereupon Edwards proposed an exchange of offices-that is, that each should resign and be appointed to the office held by the other. Edwards succeeded in effecting this arrangement. He removed to Illinois, but owing to adverse legislation by Congress, lost a large part of his fortune.

The year following Boyle was made chief-justice of Kentucky. He was in all respects the leader among his associates, and was a model judge of the old regime. Fortunately for the honor of the bench and the State, and the safety of the fundamental law, three men of more firmness, of greater intellectual and moral courage, or better fitted in all respects to meet the issue forced upon them, never at one time adorned the bench of that Court. "The judges," said the late Chief Justice Robertson, "were charged with arrogating by their decision supremacy over the popular will. Their authority to declare void any act of the Legislature was denied. They were denounced by the organs and the stump orators of the Relief party as usurpers and selfmade kings."*

Thus originated the Relief party-afterward called the New Court party. Founded on the most delusive sophistry, the sheer product of self-interest and passion, it nevertheless swept the State like a lava wave. Party feeling divided the people as they were never before divided in times of peace. Relief and Anti-Relief-Old Court and New Court-were the successive battle cries. The original issues between them survived but a few years. Yet the hostile organizations effected thereon were so fused by the heat that marked their origin that under different names their influence was felt in Kentucky a quarter of a century afterward. Mr. Hardin's talents peculiarly fitted him for leadership in this contest. He entered it with all his soul and strength, and, as will be seen later, contributed no little to that triumph of constitutional principles that then were, as they must ever be, the only safeguard of free government from the untold perils of communism and anarchy.

In "Men and Times."

T

CHAPTER XI.

JUDGE BREAKING.

HE relief law had been declared unconstitutional by the Court of Appeals, October 8, 1823. An elaborate petition for rehearing by Bibb kept the question uncertain for some time longer. But the rehearing was finally denied.

The relief movement had been rather a popular sentiment than an organized political factor until after the assembling of the Legislature of 1823. There had been discussion, but the friends and the opponents of the mooted measures had looked with equal hope to the Appellate ̧ Court for a decision favorable to their respective views. The vote in the matter of Judge Clark the previous year showed twenty-four majority favorable to the relief measures. A vote at the present session, when the Relief party had clearly defined itself, developed sixteen majority in the House. As illustrating the state of public feeling, it is noteworthy that Judge George Robertson, intense anti-relief, was chosen speaker at its organization. A month later such a thing would have been morally impossible. In that interval the loose-lying elements favorable to relief had suddenly developed as a compact and intensely partisan organization.

John Rowan, then a member from the county of Jefferson, was the Relief leader. He was of Scotch descent. Born near York, Pennsylvania, in 1773, his father, William Rowan, removed a year later to Louisville, then a small village. The following year he settled at Fort Vienna, on Green river. In youth he was disabled by disease, and was awhile a sickly boy, and on this account his father and brothers made unusual efforts to afford him a superior education, so that he might make his way in the world. With a view to the education of his children, William Rowan removed to Bardstown. There John, at seventeen, entered the school of Dr. Priestly, and soon became an accurate and classical scholar, noted for bright parts. He studied aw at Lexington with George Nicholas, a master of the law, and came to the bar at Bardstown in 1795. He soon attained high rank professionally. As an advocate in criminal cases he had few equals. As delegate to the State Constitutional Convention of 1799 from Nelson

county he had performed his first public service. After that he removed to Frankfort, and became secretary of State under Governor Greenup in 1804.

He had been member of Congress one term (1807-9) from the Bardstown district, to which he had returned. Seven times was he elected to the Kentucky Legislature-five times from Nelson and twice from Jefferson. He had been appointed Judge of the Court of Appeals in 1819. By his services there he had maintained his character for learning. He resigned the judgeship in 1820. His magnificent presence, his rotund and mellow voice," says a discriminating writer, referring to his course in the Relief Legislatures, "ready and apt flow of speech, and a manner that was at once noble and aggressive, gave him complete domination over the majority."* It does not appear that he had any legislative lieutenant equal to such a chief. He was of great learning and resources. Metaphysical yet forcible, imperious yet persuasive and earnest at all times, his equal could not be found in making "the worse appear the better cause."

Ranking high in the Relief party was George M. Bibb, a profound lawyer, an ex-chief-justice of the Court of Appeals, and former United States Senator. Efficient co-workers were Barry, Kendall, and Blair. Barry, lieutenant-governor, had rare powers as a popular orator. His portrait strikingly resembles that of the eloquent Patrick Henry. Amos Kendall and Francis P. Blair, yet strangers to national fame, demonstrated the power of the press and the mightiness of the pen. The Relief party was in the majority, but the minority was respectable in numbers and formidable in talent and resources. Crittenden, Robertson, Green, Wickliffe, and Hardin were among the Anti-Relief leaders—the last ranking with the foremost. Mr. Clay was understood to be in sympathy with them, but took no active part. He was absorbed by national affairs and ambitions. In a letter at this period he expressed his purpose to "abjure Kentucky politics."

After the obnoxious Appellate decision, the course to be pursued was a question of difficulty with the Relief leaders. Naturally, the people of the State were conservative. Aside from the respect due to its dignity and power, an able bench had given the Court of Appeals a strong hold on popular esteem. But so great was the prevailing excitement that the majority was ready to sanction any measure that would uphold the Relief laws. The juncture was critical. Something had to be done by the Relief leaders in deference to popular clamor-but what? A mistake could not be hazarded. John Mason Brown.