ments to rigorous and sanguinary Laws, having ceased to exist in America, they flatter themselves that the representatives of the freemen of Kentucky will not hesitate to adopt a system more correspondent to the genius and spirit of a free Government. These are a few of an indefinite variety of reasons that might be adduced to demonstrate the propriety of a reform. "But your petitioners would but suggest the importance of an immediate attention to this subject, and submit it to the wisdom of that body in whose hand is placed the happiness of their Constituents." 18 As the years went on, the movement became so persistent for reform that action soon resulted. By 1796 Breckinridge was actively working on a new code. In January of 1797 he was urged by Thomas Bodly of Lexington to "Go on, & prosper in your alterations and amendments in the Criminal Code it fully meets with the approbation of the people of this place, & every proper exertion will be used by them to accomplish it." "' 19 It was not strong opposition that had prevented action before this time; but rather inertia and the lack of proper interest in the LegislaFinal success to a six-year agitation came in the session of 1797 1798. According to the preamble of the new criminal code, "the reformation of the offenders, an object highly meriting the attention of the laws, is not affected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens." It also inferred that each citizen had an economic worth to the state, and that the destruction of life weakened the state and society to that extent, and forever cut off the possibility of reform. The pendulum swung far in the other direction in this new law. Now only one crime was to be punished with death. This was murder in the first degree, which shall include "all murder which shall be perpetrated by means of poison, or by laying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary.” 20 All persons guilty of taking human life, not adjudged first degree murder were subject to punishment by imprisonment from five to eighteen years. Since the policy of annihilation had now given way to a more humane system of reformation, the first necessity for a penitentiary was felt. The state, therefore, established at this time at Frankfort its first "jail and penitentiary house," as it was termed. This law was in reality a code in which all offences against peace and dignity of the state were listed and punishments designated. The rough and inhuman manner of fighting, heretofore mentioned, was thus dealt with by the new code: "Whosoever on purpose and of malice aforethought, by laying in wait, shall unlawfully cut out, or disable the tongue, put out an eye, slit the nose, ear or lip, or cut off or disable any limb or member, with intention in so doing to maim or disfigure such person, or shall voluntarily, maliciously, and of purpose, pull or put out an eye, while fighting or otherwise, every such offender, his or her aiders, abettors and counsellors" shall be on conviction confined in the "Jail and penitentiary house" from two to ten years and pay a fine not exceeding $1000.21 Slaves were specifically excluded from the benefits of this act. 18 Breckinridge MSS. [1793]. This was evidently a draft of a petition first submitted to Breckinridge for his opinion. This statement is written on the back: "It will not do; draw one." Objection was doubtless due to the strong language used in referring to the Government. 19 Breckinridge MSS. [1797]. Letter dated January 15, 1797. 20 The text of the law is given in the Mirror, March 17, 1798. Also see Butler, History of Kentucky, 281. 21 Mirror, March 17, 1798. This exception brought on much criticism. It was maintained that slaves were human beings and as such should not be treated differently in cases of life and death from freemen.22 Thus, again did the vigorous democracy of the frontier forge far ahead of the older communities in the East. But later on, many came to believe that the reaction had carried the law-makers too far in their zeal for reform. One capital crime alone they believed was insufficient protection both to life and the social welfare. Popular agitation was not to be confined to the judiciary and the penal code; the Legislature also came in for a disturbance which for a time affected a people zealous of their political institutions but more especially of their treasury. The starvation salaries fixed for the state officials by the First Legislature never ceased to remain the object of concern and subject of criticism by those who noted their evil effects. The dignity and efficiency of the Government suffered from this penurious policy which had been forced on the First Legislature by the pressure of popular opinion. The courts were most seriously affected; for the training required for a good judge, whom the state would pay from $100 to $666 2/3 a year, would also qualify a man to earn as a lawyer ten times that amount and more. Governor Shelby in his message to the Legislature in 1793 had called attention to the inadequate salaries of the judges, and especially the judges of the Court of Oyer and Terminer, who received only $100 a year.23 In 1796 the Legislature finally decided to brave popular wrath and increase the salaries of the state officials. The governor was given an increase of one-third, and the officers of the executive departments were raised from $333 1/3 to $600. The Legislature timidly increased its own members' pay from $1.00 a day to $1.50. * *" 24 The people were ill pleased with this expenditure of their money. The ones easiest to attack were the very ones who were guilty. The discussion started on the eligibility of members of the body who had voted the salary increase to sit in the next Legislature. The constitution. provided that "No Senator or Representative shall, during the time for which he shall have been elected, or for one year afterwards, be appointed to any civil office under this State, which shall have been created or the emoluments of which shall have been increased during the time such Senator or Representative was in office. * The discussion centered around the question of whether a legislator was an officer in the meaning of the constitution.25 The agitators passed over the direct implication in the word "appointed," which undoubtedly carried the meaning of the appointees of the governor, and, therefore, had no reference to the legislators, who were "elected." They also failed to note that the question they were trying to stir up was answered by inference in the provision of the constitution dealing directly with the legislators. This clause stated that no increase in the pay of the Legislature should take effect during the existence of the body making the alteration.26 This disturbance, however, never got far beyond the limits of academic discussion. The chief importance of this episode was to show the possibility of raising doubts as to the real meaning of the constitution by those who could find no other grounds so inviting for leveling their attacks against something they did not like. The third and last department of the Government to come in for a jarring was the executive. In the election of a governor to succeed Isaac Shelby in 1796, the electoral college failed to give a majority to any of the four men voted for. Benjamin Logan received twenty-one 22 Mirror, March 24, 1798. 23 Kentucky Gazette, November 23, 1793. Collins, History of Kentucky, I, 509. 24 Article I, section 4. 25 Kentucky Gazette, July 9, 1796. 20 Article I, section 23. votes, which was plurality; James Garrard was given seventeen, Thomas Todd, fourteen, and John Brown, one.27 The question immediately arose as to whether there had been a legal choice made. The constitution failed to say whether a majority was necessary, or simply a plurality. The electors decided that a majority was necessary; so they voted on the highest two, Logan and Garrard. The latter was chosen despite the fact that Logan had received five more votes on the first ballot. This apparent injustice to Logan aroused a wide-spread agitation. His supporters believed he had been robbed of an office which he had been elected to fill. They declared that a second ballot was not necessary as the constitution did not require a majority. Logan, himself, felt keenly the sting of defeat. He did not intend to tamely submit without a struggle. He addressed a communication to John Breckinridge, the attorney-general, asking an opinion from his department. Breckinridge wisely refused to add to the dangers of the present situation, by committing the Government on the question. However, he was not loath to give his views in the capacity of a private citizen. Disclaiming at the outset that he was writing an official opinion, he declared that Logan had been elected. The constitution made no provision for a second ballot, except in case of a tie. He declared that this was proof sufficient that no second ballot could be argued even by implication. The fact, urged by some, that the states on the seaboard chose the highest two to vote on where a majority was not obtained on the first ballot, could have no weight in Kentucky, for Kentuckians were not beholden to the East for their constitutional principles or the interpretation of their framework of government. Moreover the electors were merely a representation of the popular vote, where the highest vote always elected regardless of whether it was a majority or merely a plurality. Sound logic would apply the same rule to the electors. He summed up his opinion by stoutly maintaining "That gen. Logan was constitutionally elected Governor upon the first ballot, and ought to have been declared and returned ast such by the electors." 28 With this pronunciamento by Breckinridge and his strong arguments therefor, Logan's case was greatly strengthened; and if pressed the outcome would have been difficult to foresee. The Senate, which had been invested by statute with the power to decide disputed gubernatorial elections, was now appealed to by Logan. But it, following a unique line of reasoning, refused to interfere; for it declared any law that does not promote the peace and welfare of the state is unconstitutional and this law comes under that classification.29 With no further legal recourse, Logan, disdaining the use of violence, let the controversy drop. The good sense of the leaders as well as of the masses, reinforced by an inborn respect for law and order, prevented a dangerous situation from developing into something worse. "A Citizen" writing in the Kentucky Gazette saw ambition and selfishness at the root of the trouble. "How long shall we be the sport of an ambitious few?" he inquired, "and when shall we see the period arrive, that a sincere affection for the peace and dignity of our country shall lead us to suppress with indignation the interested and designing." 30 This trouble was the direct outcome of an honest difference of opinion on the interpretation of the constitution. Within four years after the constitution had been put into operation three controversies had arisen involving the three departments of government carrying with them a dispute over or a disregard of that instru 27 Kentucky Gazette, May 28, 1796; Proceedings of the American Historical Association, V, 363. The vote given in the former is not complete. 28 Kentucky Gazette, May 28, 1796. Breckinridge's letter was dated May 24 29 Proceedings of the American Historical Association, V, 363. 80 Kentucky Gazette, June 11, 1796. ment. In the legislative and executive troubles a dispute over the meaning of the constitution was the direct cause; while in the case of the judiciary a peaceable revolution was brought about when the Legislature deprived the Court of Appeals by statute of powers conferred on it by the constitution, and the dangerous practice had grown up of depriving judges of their seats by court reorganizations. Humphrey Marshall characterized the legislative history of the times as follows: "Whoever attends to the subject, will be struck with the frequent changes in the courts, and in the execution laws; which if it were possible, should be fixed and immutable. The observer of the legislative course under the constitution, can but be equally effected, by the frequent occurrence of acts that violate private rights to real property, as well by their retro-active effects, as by vesting power in one or another, to sell lands belonging to infants, as well as those of adults, without their consent. Relief, also, of one kind or another, either to private individuals who should have been left to seek it in a court of law, or equity; or to public functionaries who had violated the laws, and ran to the legislature to cover their ignorance or design from the consequences, by legalizing what was illegally done, makes a figure in the code; besides those acts of direct interference between creditor and debtor, by means of replevy, and otherwise; which taken together as a body of evidence, goes to prove great defects in the political morality of the law-makers, and separately, furnishes precedents for every species of irregular and incorrect legislation. Not that there are no good laws; there are certainly many; for at different times, different moral and political feelings have prevailed: but so predominant has been the disposition to change, but few acts have escaped its ignorance, its love, its rage, or its malice." 31 31 Quoted in Butler, History of Kentucky, 292. CHAPTER XXVIII DEMOCRATIC CLUBS AND THE FRENCH SCHEME When Kentucky entered the Union in 1792, she had thereby solved one of her most trying problems. The center around which she had grouped all of her other complaints was the quest for statehood. Many had for the time professed to believe that when she once became master of her own destinies as an equal state in the American Union, all of her other besetting difficulties would vanish immediately or be easily solved. So on becoming a state, there was a brief period of relief and rejoicing. But she was soon to see that the cause of statehood, which she had so long held up as a rallying cry and which it was so easy to group the people around, was after all not her fundamental problem. The leaders in politics and the toilers in fields soon came to see with compelling force that the holding of an office or the voting for a state official was in fact a less fundamental part of their existence than the receiving of a just reward for their labors in agriculture and manufacturing. The Mississippi was just as tightly held by Spain now as when Kentucky had been a district of Virginia. Her entry into the Union had not increased the price of her tobacco, her corn, and her bacon. Stagnation was intensified, if statehood had produced a change at all. A bitter hatred of Spain could not but continue to develop under such conditions. Another old complaint, which it was argued statehood would remedy, was the unsettled conditions in Indian relations. The Indians had noted with little anxiety Kentucky's entry into the Union. True it was that Kentuckians were held as being far from contemptible by the tribes throughout the whole Northwest; but statehood had not increased their prowess in the eye of the Indians. The American government had been pursuing a policy of treaty-making that always ended in war; and Kentuckians were inevitably the sufferers from such hostilities. The Federal government was in Kentucky's belief deserving of much blame for the situation. It had never adequately protected the frontier; and the selfishness and narrow prejudice of the East had prevented larger forces from being sent to the West and had begrudged the few troops actually there. But all the condemnation should not rest on the United States alone. Great Britain was still in defiance of the treaty of American independence holding the Northwest military posts, for the purpose, among others, of inciting the Indians against the northern frontiers of Kentucky, and was thus adding warfare to the economic ruin Spain was so successfully carrying out, in the opinion of Kentuckians. Was not the United States powerful enough to defy Great Britain, force her to retreat across the Great Lakes into Canada, and remind Spain that the navigation of the Mississippi to its mouth was the right of the American republic, by nature and by compact? Kentucky believed the reason why such things were not done was to be found nowhere else than in the jealousy of the East toward the rapidly increasing West. The West was paying taxes to the Federal government on the same basis as was the rest of the nation; but the benefits derived from the expenditure of the national funds were not being felt in Kentucky. More |