the secretary of State, and that the governor had no power to turn me out. The four first-named gentlemen concurred in the resolution. Two or three weeks afterward the Senate, which was composed of thirty-eight members, concurred in the report of the committee by a vote of thirty in favor of it to eight opposed to it. Within two or three days, I resigned the office of secretary, and sent my resignation to the governor, and notified the Senate of the fact that I had resigned, and enclosed in my note to the Senate, a copy of the resignation I sent to the governor. A few days after that, the governor renominated George B. Kinkead, in the place of George B. Kinkead, resigned.

"What was the motive of the governor in doing so ridiculous an act, I can not tell, when the journals of the Senate showed he had been rejected, and, of course, had no office to resign. It was like the arrow of a Parthian, shot, in full retreat, at the Senate; but the arm was too feeble to bend the bow, and it fell far short of the mark.

"The reader will perceive in this appendix, the letter of Austin P. Cox, and the affidavit of Henry C. Thomas. They are alluded to in the speech. Also the accounts of Governor Owsley, for money expended for his own convenience, and which he made the public pay. Among the items there is one of fifteen dollars, paid the trustees of Frankfort, for water furnished his family. He might as well have charged for the coal the family used, or the meat they eat. Two thousand four hundred and thirty-one dollars went through the Second Auditor's office; there are fifty dollars more on the books of the penitentiary-making two thousand four hundred and eightyone dollars. These sums were drawn out of the public treasury without an appropriation made by law, so far as I can find, and right in the teeth of the Constitution-which says no money shall be drawn out of the public treasury without an appropriation made by law. I find an appropriation of one hundred and fifty-one dollars and forty cents, in favor of Moffett & Co., merchants of Frankfort, for a carpet for the palace. Put the whole money expended by the governor together, and it will stand thus:

Money drawn by warrant from the Second Auditor

An account against the State at the penitentiary, for a dozen fine chairs for the governor

Paid Moffett & Co., for a carpet for the palace.

.

$2,431 00

50 00 151 40

Total. .

$2,632 40

"The accounts are so voluminous that I have thought it advisable to omit the publication of them, as it would delay too long the publication of the speech.

"What an economical governor we have, especially when the money goes to his use!

"BEN HARDIN."

"This day Henry C. Thomas made oath before me, a justice of the peace for Franklin county, that he is thirty-eight years old, that he was raised in the county of Bullitt, and he has known Ben Hardin ever since he can recollect. During all that time he has practiced law in the Bullitt Circuit Court; that for the last four years this affiant has ridden deputy sheriff; that since Ben Hardin has been secretary of State, up to last September, he does believe that he has not been at the circuit court of Bullitt more than one-half of the time the court has been in session. That said Hardin sent for him yester day, to attend the committee, but he was sick and could not attend. This statement is asked by Mr. Hardin, because he does not know that he can remain in Frankfort until Tuesday next.

"HENRY C. THOMAS."

"Subscribed and sworn to by Henry C. Thomas, before the undersigned, a justice of the peace for Franklin county, this 9th day of January, 1847. "H. WINGATE, J. P.”

"Hon. B. Hardin:

"FRANKFORT, February 8, 1847.

"In reply to your note of to-day, I beg leave to state, that I have acted as assistant-secretary for several secretaries of State, viz: Thos. T. Crittenden, John J. Crittenden, and William Owsley, Esq., perhaps others whose names I do not now recollect. I was in the habit, with their knowledge, of signing their names to official papers, in their absence, when attending to law business, and in their presence,' when in the office. I did all the clerical business while I acted in the capacity of assistant-secretary, and know not that my principals ever signed their names to any official paper.

"Very respectfully,

"AUSTIN P. COX."

CHAPTER XXVII.

TH

THE CIRCUIT BENCH FOR HALF A CENTURY.

HE Constitution of Kentucky of 1799 was peculiar in that it established a Court of Appeals; also, county courts, but left the Legislature to its discretion as to the creation of intermediate tribunals. This peculiarity did not result from accident. Prior to 1799, general common law and chancery, as well as criminal, jurisdiction, was vested in district courts. These courts were held at certain designated points in the State, and had local jurisdiction over an extensive territory, usually embracing several counties. In view of the scattered population, it was a very proper arrangement in 1792, but as the counties grew more populous and the business of the courts increased, district courts, in the opinion of some, became inadequate, as they certainly were inconvenient, for the administration of justice. Among those having this view was Felix Grundy, who favored the substitution of a circuit system, whereby a court should be held in each county, with similar functions to those of district courts. As a member of the constitutional convention of 1799, he advocated the establishment of circuit courts, but a majority of the delegates opposed the proposition. He, nevertheless, succeeded in having the Legislature vested with power and authority to establish circuit courts wherever it deemed proper. As a member of the Legislature, in 1802, Mr. Grundy introduced, and by his efforts succeeded in obtaining the passage through both Houses, of a bill establishing the system of circuit courts. The bill having been vetoed by Governor Garrard was passed over his objections, and became a law.

Thus circuit courts were established in the State, substantially as they have ever since existed.* These tribunals had general, original, criminal, common law, and chancery jurisdiction, substantially combining the functions of the Common Pleas, Queen's Bench, and Chancery courts of England. At first two associate judges in each county sat with the presiding judge, when he went thither, at each term, but after a dozen years these were dispensed with. During the * Democratic Review, Vol. III., page 164.

period the office of associate justice existed, it was usually filled by non-professional men, who added little else than numbers to the bench. Judge Broadnax, an old-time circuit judge, had great contempt for what he regarded as judicial excrescences. While he pre

sided, when a question was presented for decision, he would turn to his associate on one hand, inquiring in anything but a courteous tone and manner: "What do you guess?" Then, turning to the other: "What do you guess?"

Prior to 1850, circuit judges were appointed by the governor, by and with the advice and consent of the State Senate. As at that period governor and Senate were usually of the same political party, it rarely happened that objection was made to confirmation of those nominated. The favor of the executive once obtained, no further obstacle was apprehended. That official, in exercising the appointing power, was actuated by a variety of motives, if contemporary critics may be believed, some of them not altogether meritorious. There may be noted for example, first, partiality for individuals; second, the success of the party; third, the good of the country.

An influential politician undoubtedly had advantages in the contest for the office proportionate to his political value. Numerous and potential families were always favorites of fortune. George D. Prentice, in 1833, in the Journal and Focus newspaper, of Louisville, published a list of members of the Pope family in office. It was a numerous array, and yet it is but just to add, distinguished for talent. It was a common complaint that the appointing power was selfishly and injudiciously exercised. Examples were not wanting to give color, at least, if not support, to the predicate.

As a rule, those appointed to judgeships were of respectable, if not first-rate, ability. "I have no fault to find," said Mr. Hardin, in 1849, "with the present judges, that I am aware of, either of the Court of Appeals or circuit courts. They are about as able men as we can get." It has ever been true that it is not every skillful lawyer that will make a competent or successful judge. Qualities that shine

at the bar often lose their luster on the bench. The advocate and jurist are characters not always combined. Barry, chief-justice of the New Court of Appeals, is an instance—a bright and eloquent lawyer, but who fell short as a judge.

The occupants of the bench were men of high character for integrity, and, as a rule, of ability and learning. Now and then, new judges wore their honors stiffly, but generally the excessive judicial

dignity, exhibited in older States, was relaxed in Kentucky. In the court-room the judge was orderly, dignified, and sometimes rigid. Stories are told of old judges who were the civil service reformers of their day, who anticipated the age of steam and electricity in their dispatch of business. Off the bench, the judge was not to be distinguished in bearing from the average dignified and successful practitioner. Travel and association on the circuit usually broke down any barrier dividing bench and bar. Tradition has it that on occasion when lawyers were overtaken in "wine and wassail," "his honor" did not always escape. The latter sometimes shared such foibles as card-playing, and wagering on the result-the latter not, however, for profit (we may well believe), but for the sole and bona fide purpose of adding interest to the game.

While the bar has always criticised the judge for any excess of dignity, on the other hand, it has equally resented any marked deviation from the proprieties of his position. Such departure was instinctively felt to be disrespectful to its own body. The judge who, with

a laudable curiosity touching the elephant, adjourned court to witness that animal swim the river, has ever since been the object of ridicule. Another, who while presiding in court leisurely proceeded to comb his head, narrowly escaped impeachment.†

For the first fifty years of the century the labors of the circuit bench were not by any means onerous. The time annually occupied holding courts varied in different circuits, averaging, in 1849, according to Mr. Hardin's estimate, eighty days. No inconsiderable time was expended in horse-back travel from court to court. Each district embraced from four or five to double that number of counties, of much larger territory than now, and the distance between county towns was made seemingly greater by indifferent roads.

If the labors of the bench were light, its compensation was meager. Salaries varied from eight to sixteen hundred dollars per annum. This stipend was usually supplemented by other income, perhaps that derived from farming operations, most frequently. But neither in the period spoken of, nor later, have Kentucky judges accumulated fortunes, or laid the foundations thereof, out of their salaries.

The appointed judges enjoyed, in a marked degree, the respect and confidence of the public at large. It is true that, in 1824, the distinguished Judge Clark had incurred popular displeasure in holding the relief law unconstitutional, but this decision (finally held correct), did

Judge Nuttall, of Newcastle. † Judge Hewitt, of Louisville.