fourth Monday in April, 1846 ; and, although I left and returned at different
times during the spring and summer, did I not, at each time I returned,
claim the office and do the business myself? When I returned the last time,
about the 24th of July, and stayed until the 7th of August, 1846, did I not,
during that time, claim the office and do the business of it in the same room
with the governor? I did ; and with his consent and approbation; which
proves, up to that time, I had not abandoned the office, but was in office,
and so admitted by the governor.
" I was gone the last time from the 7th of August to the ist of Septem-
ber, 1846, hunting a runaway negro, who had, according to the opinions of
the doctors who attended the negro he had stabbed, committed, in all prob-
ability, murder ; and during all that time I had a deputy in the office doing
the business in my name, with the consent of the governor, and, besides his
salary, getting the fees of the office as extra pay from me. Was that absence
of three weeks and four days an abandonment ? Because the other times of
absence can not be added to that; for, at the end of each previous
absence I had returned, claimed the office — my claim was admitted by the
governor — and I did the business of the office.
"I ask you, Mr. Chairman, and the honorable committee, to respond to
this question — and I demand of the governor an answer — was not my claim
and right to that office admitted ? And did I not, by my deputy, do the
THE OWSLEY SPEECH. 403
business of the office on the ist of September, 1846, when my name, on
that day, was, by the deputy, signed, in the presence of Mr. Kinkead and
the governor, to sixty patents ? Does not the order appointing Mr. Mitchell
the assistant of Mr. Kinkead admit he was my deputy up to that moment,
by using the words 'appointed and continued?' Continued how? Why,
as my deputy, if Mr. Kinkead's appointment was not legal. Mr. Mitchell
swears to that fact; that it was so worded at his instance, and with that
intention. The governor read the order, thus worded, and approved of it,
as by law he was bound to do ; and so it is stated in the face of the order ;
to meet the contingency that if the Senate should decide that the governor
had no right to remove me, then I had no right to remove him, although
at that time I had made no attempt to remove him, nor did he or the gov-
ernor know I would make any such attempt. Their object was to continue
him in office, at all events ; because the ' duke' must have his salary, as part
of his means to support his new dignity. That puts me in mind of an anec-
dote that occurred some few years ago at Bardstown : Mr. Turner Wilson,
a neighbor of mine — one that gambled sometimes, and had caught a {ew
of the cant phrases of the craft — a man of fine sense and wealthy — was
taken very sick, and about to die. Rowan Hardin, who was extremely fond
of him, started from Bardstown one day to go to Mr. Wilson's residence, to
see him. On the road he met a Methodist preacher. He asked him where
he had been. He said he had been to see Turner Wilson ; that Mr. Wilson
was about to die, and had sent for him. Then they parted ; the Methodist
preacher came on to town ; Rowan Hardin continued on to the house of
Mr. Wilson. When he got there he found him just at the point of death, and
a Catholic priest with him. When the priest left. Rowan remarked to Mr.
Wilson, ' What does this mean, Turner ? I met a Methodist preacher on
my way here, and he said you had sent for him ; and when I came here, I
found a Catholic priest.' Mr. Wilson replied: 'Oh, Lord! Rowan, I am
almost dead — I want to take all the chances ! ' So with Mr. Mitchell and
the governor — their case is so very bad that they want to take all the
chances !
"Mr. Mitchell drew his quarter salary from the ist of July to the ist
of October. Two months of that time was before the appointment of Mr.
Kinkead. Then, that two months was his salary as my deputy. These
facts were all known to the governor when he sent in his nomination of Mr.
Kinkead, accompanied with his message and declaration of war against me,
also his manifesto setting out his reasons for the war.
" Mr. Mitchell says the governor advised him not to put my name to the
patents. That advice was only colorable to save appearances. Like a jus-
tice of the peace who loves to see a fist fight between two men, he will in a
loud voice command the peace, and in an undertone, at the same time, say,
stand back, boys, fair play !
404
BEX HARDIN.
( (
Mr. Chairman, you recollect the account Mr. Macurdy gave of the
sixty patents ; that the governor had been absent at his farm in Boyle county
for about ten days during the latter part of August; that owing to that
fact, the unsigned patents in the register's office had accumulated to sixty ;
he had dated them according to the days the grantees were entitled to them,
and that they had all been recorded ; that all of them bore date before the
I St of September, 1846; that when he heard that the governor had removed me
and appointed Mr. Kinkead secretary of State, he took the patents into the
governor's room to be signed ; that the governor looked at them, and asked
him if he could not alter the dates ; he replied he could not, because they
were due at the time they bore date, and because they had been recorded ;
that the governor, Kinkead, and Mitchell were all in the room ; it was then
concluded that Mr. Kinkead could not attest them, as the patents bore date
before his appointment; that when he left the room, the governor, Mr. Kin-
kead, and Mr. Mitchell were consulting about putting my name to them as
secretary, by Abram S. Mitchell, my assistant. It was determined, before
Macurdy left the room, that Kinkead should not attest them. They all
three knew that they must be attested either by Mr. Kinkead or myself.
They had decided, before Macurdy left the room, that Kinkead could not
do it. What then must be done ? Nothing but this. That I was to do it.
Did not the governor know that Mr. Mitchell was putting my name? Did
they (to-wit : the governor and Mitchell) not sit within three feet of each
other, and when the governor put his name to a patent, it was laid before
Mr. Mitchell, and he instantly put my name? The governor knew the
attestation was then being done. He saw Mr. Kinkead was not doing it.
The conclusion is inevitable, that he knew my deputy was doing it in my
name. The governor's advice to Mitchell was only colorable, a sham and
trick, to save appearances. If the advice had been given in good faith,
Mitchell never would have put my name. The governor had, the same day,
just before, entered on the executive journal, that I had abandoned the office.
He had appointed and commissioned George B. Kinkead. The putting my
name afterward to the patents was placing him in an awkward position.
The advice, not to put my name, was a trick and artifice, not intended to be
obeyed, to give color to the transaction, that he might escape the position,
that he should first proclaim me out of office, and so cause it to be entered
on the executive journal, and appoint 'my successor, and then, an hour or
two afterward, cause my name to be signed to sixty patents. It was a dis-
ingenuous contrivance to save appearances, entirely beneath the dignity of a
governor of Kentucky.
"Mr. Chairman, the governor seems to confound the technical terms,
as given by Lord Coke, to be found in Bacon's Abridgement, tide Office and
Officers, letter M. 'There are,' says my Lord Coke, 'three causes of for-
feiture, first, by abuser ; secondly, non-user; thirdly, refuser.' Non-user
THE OWSLEY SPEECH.
405
means a neglect of duty as an officer. There is no such term as abandon^
ment. It is non-user, or neglect of duty. There is refusal to accept.
None is alleged, because the fact is the reverse. But, after acceptance,
the legal terms are non-user and abuser. One means non-feasance, the
other mis-feasance. There is no pretense of mis-feasance on my part.
"After an acceptance of an office, if the officer neglects his duty, or does
it wrong, he is guilty of misdemeanor in office. How is he to be punished for
that, besides the actions against him by each individual who may be
injured, either because he won't do his duty as an officer or does it wrong?
In Great Britain, his office is to be taken from him by scire facias , provided
he holds his office by letters patent, which is a commission under seal. (See
5th volume of Bacon, page 212.) The words of the law are these: 'When-
ever an officer, who holds his office by patent, commits a forfeiture, he can
not regularly be turned out without a scire facias, nor can he be completely
ousted or discharged without a writ of discharge ; for his right appearing of
record the same must be defeated by matter of as high a nature.' Jacob's
Law Dictionary, volume IV, page 440, has the same law.
" The patent in Great Britain is only repealed by a scire facias, as the law
says in so many words. In a court of chancery, where the parties are noti-
fied, and have a full and fair trial, and if the officer's commission is taken
from him, it is done by a judgment of the court, after every opportunity is
afforded him to be heard in his defense.
" In this country, how is non-user and abuser to be tried ? By an impeach-
ment before the Senate. Sections 2 and 3, article 5, of the Constitution,
reads in these words :
" ' Section 2. All impeachments shall be tried by the Senate; when sit-
ting for that purpose, the senators shall be upon oath or affirmation No
person shall be convicted without the concurrence of two-thirds of the mem-
bers present.
" ' Sec. 3. The governor and all civil officers shall be liable to impeach-
ment for misdemeanor in office; but judgment, in such cases, shall not
extend further than removal from office, and disqualification to hold an office
of honor, trust, or profit under this Commonwealth; but the party convicted
shall nevertheless be liable and subject to indictment, trial, and punishment
according to law.'
" Also see the case of Bartlett against the Franklin County Court, Sneed's
Reports, pages 215, 216, and 217. The case reads in these words :
" ' October 27, 1802.
" ' Harry Bartlett, â– )
" 'v^- \ Upon a Mandamus.
" ' The Justices of the County Court of Franklin, j
" ' In January, 1796, Bartlett was commissioned and qualified as a mag-
istrate of the county of Franklin ; but failed (and, it was alleged, from an
unsound or deranged mind) to sit as a magistrate for several years, during
which time, the Constitution being changed so as to require the two eldest
magistrates of the county to be recommended by the county court to the
4o6
BEN HARDIN.
governor, for him to appoint one of them sheriff. Bartlett being the eldest
magistrate, and wishing to fill the office of sheriff, in May, 1802, offered to
take his seat as magistrate, but was refused that privilege by the county
court, who caused an order to be entered up, saying that he " shall not be
admitted to a seat as one of that body." An application was then made to
the Court of Appeals, at their April term, 1802, for a mandamus ni si,
against the said county court, which was granted, and on which the county
court made the following return :
'â– 'â– 'â– Franklin County, Set., County Court, September term, 1802.
" ' This court, having seen and considered a writ of mandamus awarded
by the Court of Appeals, and to this court directed, to show cause why
Harry Bartlett, who was formerly appointed a justice of the peace for the
county aforesaid, shall not be permitted to take a seat as justice of the court
for the said county, in obedience to the writ aforesaid, hereby return for
cause :
'' -First: That it appears to this court, of record, bearing date June term,
1797, duly entered in the said county court, and remaining unrevoked,
that the said Harry Bartlett was then taken, deemed, and held to be a man
of unsound mind, and trustees were appointed to take upon themselves the
care and management of the estate of the said Bartlett.
" 'Second: That from the said June term, 1797, until the May term, 1802,
of this court, the said Harry Bartlett had absented himself from this court,
and had not, during the period aforesaid, either by himself or any other,
attempted to take a seat in this court — and
" 'Third : This court thinks it both illegal and reproachful, that the said
Harry Bartlett, who appears to them to be incapable of doing any legal
act in his own business, should participate in the judicial administration of
the law of the land.
"'Ordered, that the foregoing return to the mandamus aforesaid, be
certified to the Court of Appeals. ;
" M Copy— Teste, DANIEL WEISIGER, C. F. c'
"At the October term of the Court of Appeals ensuing, the parties were
heard by their counsel, and the court took time to consider thereon; and
on the 27th of October, 1802, delivered in their opinion as follows :
" 'The causes assigned by the justices in their return, for not admitting
Harry Bartlett, the applicant, to a seat on the bench of the county court,
as a member of the said court, appear to be insufficient and unsatisfactory,
for the following reasons:
" 'First: It does not appear that the legal steps were pursued in 1797,
when the applicant was declared to be of unsound mind, and his estate com-
mitted to the care and management of trustees. But, if the legal steps had
been pursued, and the applicant regularly pronounced a lunatic by a compe-
tent jurisdiction, yet, as lunacy is often a malady of short duration, the
sufferers under it frequently restored to the full enjoyment of their mental fac-
ulties, it should have appeared (to justify the rejection of the applicant from
his seat altogether) that he not only was in the year 1797, but still continues
to be of unsound mind, and incapacitated to discharge the duties of the
offxe.
'"Second: In answer to the second cause assigned, it will be sufficient
to say, that the law has not limited, in the case of county court justices,
THE OWSLEY SPEECH.
407
I
what length of absence from duty shall produce a forfeiture of the office;
arid, therefore, if the applicant has been guilty of such neglect of duty as
will subject him to removal from office by any of the modes pointed out in
the Constitution, such mode as may be conceived applicable to the case
should only be resorted to.
" 'The third cause assigned contains nothing but the opinion of the jus-
tices, and, therefore, requires no answer.
'"Wherefore, it is considered by the Court that a peremptory mandamus
be awarded the plaintiff.'
"What is the doctrine now contended for by Governor Owsley and his
friends? That instead of a scire facias^ as in Great Britain, or impeach-
ment, as directed in our Constitution, for a misdemeanor in office, the gov-
ernor and Mr. Mitchell will give the neglect of duty (to-wit: non-user), a
strange and unheard-of name — call it abandonment. That name has such
a magical influence in it as to authorize them to dispense with notice or trial
—have a star chamber inquest, not of justice, but injustice, over me — break
me before I ever heard of it. Then, to bolster up such an enormous act of
injustice and oppression, to basely take my private papers out of a table
drawer, where I had put them, to draw up a kind of accusation or indict-
ment against me, to be laid before the Senate.
"According to the mythology of the ancient Grecians, Jupiter put over
the dead a judge in hell, called Radamanthus. He was so cruel, and
delighted so much in the torments of the souls of the dead, that he pun-
ished first, with great severity, and heard the cause afterward. Jupiter said
that was not his way to do business and administer justice, became dis-
pleased with his conduct, took his commission from him, on account of his
injustice, cruelty, and barbarity. I have never heard of but two cases on
this earth that had any resemblance to the manner of Radamanthus' admin-
istering justice. One was a country school-master, who taught in Nelson
county, and to whom Albert G. Botts, now a worthy representative from
that county, went to school when a boy. The school-master, according to
Mr. Botts' account, whipped first and heard the cause afterward ; and if, on
the trial, he acquitted the poor scholar, he entered, in a memorandum book
kept for that purpose, a credit for a whipping hastily and unjusdy inflicted.
On the next offense given by the scholar, he gave him a credit for the balance
on his book in his favor; squared his books, and so the matter ended. The
other case that I had reference to on this earth, was that of Governor Ows-
ley. He imagines I have, as secretary, been guilty of an offense ; calls it
by a new name, 'abandonment; ' punishes me first, without notice or trial,
and, after the punishment is inflicted, hears my cause.
"Mr. Chairman, no man is safe if this new doctrine of the governor's,
called abandonment, is recognized and established. Is there any time fixed
as the duration of absence ? None. Is there any kind of excuse for the
absence defined ? None. It is all to be at his discretion. For a friend
408 BEN HARDIN.
like the attorney-general, may be gone to the city of Washington, for two
months, pleading causes in the Supreme Court. The governor will construe
it no abandonment. A commonwealth's attorney may be in the army twelve
months, with a commission in his pocket, signed by the governor. That is
no abandonment, because his father is a man of great wealth, an eminent
lawyer, and the governor's friend. But if he wants to reclaim my office,
and bestow it on a friend, he will construe three weeks and four days absence
an abandonment, and take the office away, although the absence may be
and was on the most urgent business. The governor's prejudices can always
construe the absence of an officer he does not like into an abandonment.
Or, if there is an office that a pet wants, he can shorten the time from three
weeks and four days to two weeks — nay, one week; and, according to his
doctrine and that advocated by his friends, the Senate nor any other per-
son can dispute or question the legality of his acts.
"The governor savs abandonment creates a vacancy, and he is the sole
judge of that. I will ask, Mr. Chairman, what judge, what ministerial offi-
cer, is safe to adopt that doctrine? The judges of courts will so adopt the
same rule of proceeding, when they want to vacate a clerkship, to put one
of their brothers or sons into office; because, what was usurpation to-day, is
precedent to-morrow — an established doctrine the next day. This doctrme
of abandonment is new, extraordinary, and startling. Establish it, and all
power concentrates, ultimately, in the governor ; and then the governor and
his Grace, the ' duke,' can well say, as Alexander Selkirk said when on the
island of Juan Fernandez, ' We are monarchs of all we survey.'
"The people must resist usurpation and oppression at their first appear-
ance. It will not do to become familiar with them. They first make their
appearance in a disguised dress, and like a man attempting to break a horse,
he speaks kindly at first — strokes the horse's neck — pats him on the back ;
but let him once get the bridle in his mouth and the saddle on his back, and
he in that, then the poor horse is a slave for life, and doomed to a life of
hard labor, great drudgery, and cruel treatment. So with the people and a
tyrant, as the melancholy history of the world, from Nimrod to the present
day, proves. There is no way to live and die free, but to be watchful and
jealous of our liberties.
"What was the conduct of the people of Great Britain when Charles I.
attempted to collect ship-money, without an act of Parliament ? They resisted
and made war upon him— finally dethroned him, and beheaded him. Mr.
Chairman, we ought, as free men, never forget what John Hampden said on
that occasion. When one of the ministers of the king said : ' Mr. Hamp-
den, why do you resist your king for twenty shillings ? ' — that was the amount
of his tax — he replied : ' I care nothing about the twenty shillings ; it is not
for that I oppose myself to the power of the Crown. I fight for my liberty.
To tax me even twenty shillings, without my consent, makes me a slave.'
THE OWSLEY SPEECH. 4O9
" The same people made the same kind of resistance to James II., when
he attempted to interfere with the Protestant rehgion of the people. The
consequence was, that James had to abdicate his throne and fly from his
kingdom. Louis XVI., of France, paid the forfeit of his head for invading
the rights of the people ; and his brother, Charles X., had to leave his king-
dom for the same conduct toward his people.
"Our fathers resisted, and maintained with their lives, their fortunes
and their sacred honors, that resistance to the claim of Great Britain to tax
them without their consent, as they had no representation in the Parliament
of Great Britain. They would not submit to a small duty on tea. The
ministers of Great Britain had sugared the pill by giving a drawback, or
bounty, to the exporting merchants, which enabled them to sell to the colonists
the tea cheaper than before. The disguise was seen through. It was not
for the amount of the duty they took up arms, but their liberty. For a man
is a slave if he submits to be taxed without his consent.
"It is my case, gentlemen, to-day, it may be yours to-morrow, and it
may be the judges of our courts the next day. Their independence may
be sapped, and they may be rendered the mere tools and creatures of the
governor, like they were in Great Britain the instruments of oppression to
the people, instead of their guardians and protectors, before they were ren-
dered independent of the king. For, when they hold their offices during
the good pleasure of the governor, under this new device of abandonment,
their offices depend upon his will and pleasure, as he can construe what he
pleases into an abandonment, and then his word is not to be disputed.
When they are thus dependent on him for the tenure of their office, they
are dependent on him for the bread they and their families eat. Instead of
being free and independent men, they will become slaves. All tyrants find
new names for old things, and under those names oppress the people and
rule them with a rod of iron.
" Mr. Chairman, before I finally leave this subject of neglect of duty in
an officer, I will refer to a part of the Constitution. It is section fourteen,
under the head of General Provisions, and which expressly provides for an
occasional absence of an officer by authorizing a deduction from his salary.
That goes to disprove this whole doctrine of abandonment of office. It
goes upon the supposition that the officer still continues in office until
removed by impeachment. The part of the Constitution I have reference
to reads in these words.
" ' Section 14. It shall be the duty of the General Assembly to regulate
by law, in what cases, and what deduction from the salaries of public officers
shall be made, for neglect of duty in their official capacity.'
"Mr. Chairman, the governor seems to forget a universal rule in all wars
between man and man, and nation and nation. After a treaty between
nations, they never go behind the treaty to look out for a new cause of quar-
4IO
BEN HARDIN.
rel; so with individuals, if they fall out and make it up, become reconciled,
and afterward, one chooses to fall out with the other, he has no right to go
back behind the time they settled their disputes, difficulties, and quarrels.
The governor, in his message, did not even regard this rule, for nearly all
his causes of complaint existed, if they existed at all (which I deny), before
our compromise and reconciliation, the 3d of January, 1846. That is a
further confirmation of what I have said — that he is a hard man to please ;
like a child, you can not keep him in a good humor.
"The governor, in his message, says: 'Suppose that after Mr. Hardin
had accepted the office he had refused to qualify to it.' As the case sup-
posed by the governor did not occur, I am under no obligation to answer
his supposed or imaginary cases, because I did qualify and acted under the
commission. The governor seems to confound terms again, like he did in
using the word ' abandonment' for non-user. It is the qualification that com-
pletes the acceptance; and without the qualification, the appointee is not
fully invested with the office by the commission. He has a right to it, pro-