4.1.2 Mountain South (1770-1831): Court Wars and Indian Wars

Debtor Relief and Kentucky’s Warring Courts

Blair v. Williams – - Kentucky, 1823 (14 Ky. 34); Hildreth’s Heirs v. McIntire’s Devisee – Kentucky, 1829 (1 J.J. Marsh. 206)

  • During the 1819 depression, a new party favoring debt relief laws came to power in Kentucky and dominated the state’s politics for the next decade.  In addition to giving debtors more time to pay their bills, the legislature blamed banks for the depression and revoked many bank charters.  In Blair, Kentucky’s supreme court overturned several of these laws, holding that they interfered with creditors’ right to enjoy legal remedies available at the time the debtor incurred his obligation.   
  • The legislature responded by threatening removal of the court’s judges from office; when that failed, it abolished the Old Court and created a New Court whose judges were known to be more sympathetic to debtors.  The Old Court  refused to recognize the New Court or to retire, and for two years the state had competing supreme courts.
  • That proved to be too much for many Kentuckians.  Old Court supporters regained control of the legislature in 1825 and promptly abolished the New Court.  Pro-debtor sentiment was still strong, however, and a compromise was finally reached.  __ Boyle, the Old Court’s chief justice, accepted a federal judgeship and two of his colleagues retired; they were replaced by judges more sympathetic to debtor relief, including a young George Robertson (see § __).  In Hildreth, the Old Court held that the New Court’s decisions were not good law in Kentucky, but the court’s change of personnel was a not inconsiderable victory for those who had supported the New Court.

“It is impossible to conceive how far such [debt relief] measures in a state of irritation, might be carried, and how speedily the Union might be marred or dissolved by the exercise of such a power. … Allow these states to shut their banks, suspend law process, and restrain the fulfillment of contracts, on which the greatest portion of the revenue of the Union depends, it would vitally cut the sinews of government, and mar the peace of the whole.  These were the portending evils of the day, anterior to the Constitution.” – Justice Benjamin Mills, in Blair

The Tennessee Courts and the Trail of Tears

Cornet v. Winton’s Lessee – Tennessee, 1826 (10 Tenn. 143) ; State v. Foreman – Tennessee, 1835 (16 Tenn. 256)

  • In the 1790s the Cherokee nation occupied large parts of north Georgia and southeast Tennessee.  The federal government persuaded them to cede parts of their land in both states for settlement, in return for payments and guarantees that they would not be disturbed on their remaining holdings.  This did not sit well with Georgians, particularly after gold was discovered in Cherokee country in the 1820s.  The Georgia legislature took matters into its own hands, asserting power to punish Indian crimes and opening up reserved Cherokee lands for white settlement.  In Worcester v. Georgia (1834) the U.S. Supreme Court held that federal treaty rights took priority, but Georgia officials successfully defied the court, President Andrew Jackson sided with the Georgians, and in the late 1830s most Cherokees were forced to take the “Trail of Tears” to new lands in Oklahoma.  (See § __)
  • A smaller version of the Georgia crisis took place in Tennessee.  At first the state’s supreme court vigorously upheld Cherokee treaty rights as a matter of justice and national honor, as exemplified in Cornet where the court decided that a land grant pursuant to federal treaties took precedence over a grant of the same land under state law. 
  • But as white sentiment for removal mounted, the court abruptly changed course.  In Foreman Justice John Catron formerly the leading defender of Indian rights, held that the U.S. had acquired title to all Cherokee lands in Tennessee by right of conquest and that title passed to the state when Tennessee joined the Union.  Catron (a close political associate of Jackson, who likely acted out of loyalty to Jackson and shortly after was rewarded with an appointment to the U.S. Supreme Court) and Justice Nathan Green acknowledged that their decision land rights were motivated largely by the fact that the tide of white settlement was unstoppable.  Justice Jacob Peck issued a bitter dissent lamenting that reality and warning that this new outbreak of resistance to federal law would damage the national union.   

I hold that the early notions of the Spaniards and others, ‘that the Indians were mere savage beasts without rights of any kind,’ have long since been exploded …; and that those who acted upon them are at this day deemed by the people of the US more savage and cruel than those they despoiled.” – Justice John Catron, in Cornet

Our claim is based on the right to coerce obedience.  The claim may be denounced by the moralist.  We answer, it is the law of the land.  Without its assertion and vigorous execution this continent never could have been inhabited by our ancestors.”  - Catron, in Foreman

File:Trail of tears map NPS.jpg

"Trail of Tears" - routes of Cherokee migration from the South to Oklahoma (1835-38)

Courtesy National Park Service and Wikimedia Commons

 File:Francis Preston Blair in 1845.jpg

Francis P. Blair, whose lawsuit triggered Kentucky's court wars (artist:  Thomas Sully) - courtesy Wikimedia Commons

“Without a total revolution, there can be no such political solecism in Kentucky as a ‘de facto’ court of appeals.  There can be no such court, whilst the constitution has life and power. … [The New Court] claimed to derive its origin from the fiat of the legislature … This attempt was ineffectual from want of legislative power.”
– Justice George Robertson, in Hildreth 


John Ross, a Cherokee leader during the removal era - courtesy Wikimedia Commons

“It has been said that the right of this state to extend its jurisdiction over the Cherokees within our limits being dependent upon the state of things produced by the Georgia legislation, in extending that jurisdiction we take advantage of our own wrong. … In truth, we are only to look at the actual state of things, and … we ought not to be deterred by abstract theories, but, like practical men, act upon the necessities of the case as they exist.” – Justice Nathan Green, in Foreman


“Did [the Cherokee] nation … anticipate, when signing such treaties, one object of which was protection against encroachment … that they were to surrender up at the pleasure of these communities’ that all their rights of government were to depart …?  It is impossible … In those days there existed no spirit abroad to stir up conflict between single states and the general government.  Then the bonds of union were more strong, love of country prevailed, and men were willing to sacrifice much of opinion for the sake of that harmony among sister communities which ought to be our pride and boast so long as we wish to exist as a nation acknowledging one general head.”  

– Justice Jacob Peck, in Foreman