Collins historical sketches of Kentucky. History of Kentucky: Vol. I, Part 94

Author: Collins, Lewis, 1797-1870. cn; Collins, Richard H., 1824-1889. cn
Publication date: 1874
Publisher: Covington, Ky., Collins & Co.
Number of Pages: 1452

USA > Kentucky > Collins historical sketches of Kentucky. History of Kentucky: Vol. I > Part 94

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

In 1808 the "Bible Society of Philadelphia" was formed-the first in Amer- ica; followed, in 1809, by one in Connecticut and one in Massachusetts; in 1811, by the "Kentucky Bible Society" at Lexington ; in 1813, by one at Hali- fax, Nova Scotia; in 1814, by one in Antigua, one of the West Indies; and in 1816, by the " American Bible Society," at New York-five years after Kentucky had pioneered the idea in the new West-and embracing among its vice-presidents, two Kentucky governors, Isaac Shelby and George Madi- son. The first year's receipts of the American Bible Society were $37,779, and its circulation of Bibles and Testaments reached 6,410 volumes. Forty- two years after, in 1858, its receipts were $386,960, and its issues 712.114 vol- umes. Its total circulation of the Bible, or parts of the Bible, in all cases without note or comment, in 1858 had reached 12,804,083 volumes.

In 1804, when the first Bible society was formed, the Bible was printed and circulated in 50 tongues. In 1858, it was printed and circulated in 166 ver- sions-of which 99 were new versions, including 14 European languages, 15 Asiatic, 11 Polynesian, 11 African, and 7 American. Many of these were first made written languages by the societies.

A great cause for thankfulness is the extreme cheapness of the Bible, under the auspices of the American Bible Society. Good editions of the Bible can now be bought for from 25 to 50 cents per copy, and of the Testament as low as 8 cents.

The formation and success of the Kentucky Bible Society, about the fourth

(491)

492

BIBLE SOCIETIES IN KENTUCKY.

in order, doubtless gave a powerfully directing influence to the organization of the American Bible Society, five years later, and to which it became aux- iliary in 1817. Among its founders and active managers and supporters were Revs. James Blythe, D.D., Robert H. Bishop, D.D., James Fishback, D.D., Nathan H. Hall, D.D., John T. Edgar, D.D., James McChord, John Lyle, and R. M. Cunningham; and of statesmen and public men, Ex-Governors Isaac Shelby, George Madison, Gabriel Slaughter, and John Adair, Hon. Joseph C. Breckinridge, Judge Benjamin Mills, Col. James Morrison, John Tilford, John W. Hunt, David A. Sayre, and others. Under such auspices, a deep interest was awakened all over the State, and cooperative Bible Associations formed- among them the Lexington, Paris, Mason County, Pisgah, New Providence, Chaplin Hills, and Louisville Associations. In September, 1814, the Ken. tucky Bible Society sent to Philadelphia for Bibles and Testaments, to be dis- tributed among the soldiers of the war of 1812. .

So important a field for distribution was opened in the West, and so irreg- ular and expensive was the transportation from the East, that Lexington was selected by the American Bible Society as a central point or depot for pub- lishing and circulating the Scriptures in the West and South; and two sets of stereotype plates of the entire Bible were sent out-from which, by 1823, three editions of 2,000 copies each had been printed, on paper of an "excellent quality," made near Georgetown, Ky., and "equal in workmanship to any." They were sold at $1.50 for large octavo size, 682 cents for common 12 mo., and 182 cents for a Testament for Sunday-schools. These prices were in West- ern currency, which was at a large discount compared with Eastern funds. This was in 1821-fifty years ago !

From 1819 to 1826, New York and Lexington were the publishing depots for the Society, for the whole country. The parent Society adopted the policy of county auxiliary societies, of which there were 112 in Kentucky, in October, 1871, to carry on its work. This system, and the increased publishing and commercial facilities of New York, made the further editions at Lexington not so advantageous; and the Kentucky Bible Society-having faithfully ful- filled its mission, and made a lasting impression for good-was discontinued, or passed into and became a part of the American Bible Society. During its existence, all the governors, lieutenant-governors, and other chief officers of the State, were either presidents, vice-presidents, or managers of the Ken- tucky Bible Society, or selected to deliver addresses at its anniversaries.

But while men of large and liberal views were making this noble record for the State and society, Christian women were helping also, by organizing similar societies with the same worthy object. The Female Bible Society of Lexington was organized December 12, 1822, and continues its good work to this day (1871). The contributions since its organization amount to $4,556. One of the managers at its formation, and who soon became its energetic Pres- ident-Mrs. Thomas T. Skillman-at the ripe age of eighty-five, was still (in 1871) directing its operations.

The American Bible Society has managed the work in Kentucky through general agents selected from among the distinguished clergymen of various denominations. Rev. George S. Savage, M. D., was the general agent in 1871. A system of Bible colportage, by which the poor and destitute were supplied, has been a leading feature of its work. In addition to the volumes printed at Lexington, of which a portion was sent to the State of Ohio, and to the ter- ritories of Indiana and Louisiana, the total number sent to Kentucky from New York, from its organization in 1816 to the 1st of October, 1871, was 614,699 volumes-a yearly average of 11,279 volumes. Although in several years before 1836 the number sent was less than 500, yet, since 1844, only three times has there been as few as 10,550 received; while, in 1855, the number was 20,720, it rose to 33,164 in 1862, 31,378 in 1863, 67,269 in 1864, 22,465 in 1868, and 26,938 in 187.1 For the ten years preceding April, 1871, the total sent to Kentucky was 256,278 volumes-a yearly average of 25,627.

ROBERT TROUBLE

WILLIAM ONSLEY /

GEORGE MB SE

GEORGE ROSES- 64

ELIJAH C. PHISTEP

AARON X MODLEY

قصفتـ

Engraved by

١,٠٠

WILLAV H WAte oRTH

KENTUCKY JUDGES.

SKETCH

OF THE

COURT OF APPEALS.

THE Constitution of Kentucky-like that of the United States, and those, also, of all the States of the Anglo-American Union-distributes among three depart- "ents of organic sovereignty, all the political powers which it recognises and es 'lishes. And to effectuate, in practice, the theoretic equilibrium and security contemplated by this fundamental partition of civil authority, it not only declares that the Legislature shall exercise no other power than such as may be legisla tive-the Judiciary no other than that which is judicial-nor the Executive any other than such as shall be executive in its nature; but it also, to a conservative extent, secures the relative independence of each of these depositaries of power. If courts were permitted to legislate, or the legislature were suffered not only to prescribe the rule of right, but to decide on the constitutional validity of its own acts, or adjudicate on private rights, no citizen could enjoy political security against the ignorance, the passions or the tyranny of a dominant party : And if judges were dependent for their offices on the will of a mere legislative majority, their timidity and subservience might often add judicial sanction to unconstitu- tional enactments, and thereby, instead of guarding the constitution as honest and fearless sentinels, they would help the popular majority to become supreme, and to rule capriciously, in defiance of all the fundamental prohibitions and guaranties of the people's organic law. As the legislature derives its being and authority from the constitution, which is necessarily supreme and inviolable, no legislative act prohibited by any of its provisions, can be law ; and, consequently, as it is the province of the judiciary, acting as the organ of the judicial function of popular sovereignty, to declare and administer the law in every judicial case, it must be the duty, as well as privilege, of every court to disregard every legislative viola- tion of the constitution, as a nullity, and thus maintain the practical supremacy and inviolability of the fundamental law. But the will to do so, whenever proper, is as necessary as the power; and, therefore, the constitution of Kentucky pro- vides that the judges of the Court of Appeals, and also of inferior courts, shall be entitled to hold their offices during good behavior ; and, moreover, provides that no judge shall be subject to removal otherwise than by impeachment, on the trial of which there can be no conviction, without the concurrence of two-thirds of the Senate-or by the address of both branches of the legislature, two-thirds of each branch concurring therein.

The first constitution of Kentucky, which commenced its operation on the 1st of June, 1792, also prohibited the legislature from reducing a judge's salary du- ring his continuance in office. But the present constitution, adopted in 1799, contains no such prohibition. It is not difficult to perceive which of these con- stitutions is most consistent with the avowed theory of both as to judicial inde- pendence ; for, certainly, there can be no sufficient assurance of judicial indepen

( 493 )

494

SKETCH OF THE

dence, when the salary of every judge depends on the will of a legislative majority of the law-making department.

But to secure a permanent tribunal for adjudicating on the constitutionality of legislative acts, the existing constitution of Kentucky, like its predecessor in this respect, ordained and established "A SUPREME COURT," and vested it with ul- timate jurisdiction. Section one and two of the 4th article reads as follows :

"SEC. 1. The judicial power of this commonwealth, both as to matters of law and equity, shall be vested in one Supreme Court, which shall be styled the Court of Appeals, and in such inferior courts as the General Assembly may, from time to time, erect and es- tablish.

"SEC. 2. The Court of Appeals, except in cases otherwise provided for in this constitution. shall have appellate jurisdiction only, which shall be co-extensive with the state, under such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law."

As long as these fundamental provisions shall continue to be authoritative, there must be in Kentucky a judicial tribunal with appellate jurisdiction "co-extensive with the State," and co-ordinate with the legislative and executive departments. And this tribunal being established by the constitution, the legislature can neither abolish it nor divest it of appellate jurisdiction. The theoretic co-ordinacy of the organic representatives of the three functions of all political sovereignty, requires that the judicial organ, of the last resort, shall be as permanent and inviolable as the constitution itself. The great end of the constitution of Kentucky, and of every good constitution, is to prescribe salutary limits to the inherent power of nu- merical majorities. Were the political omnipotence of every such majority either reasonable or safe, no constitutional limitations on legislative will would be ne- cessary or proper. But the whole tenor of the Kentucky constitution implies that liberty, justice and security, (the ends of all just government,) require many such fundamental restrictions : And not only to prescribe such as were deemed proper, but more especially to secure their efficacy, was the ultimate object of the people in adopting a constitution : And, to assure the integrity and practical supremacy of these restrictions, they determined that, as long as their constitution should last, there should be a tribunal, the judges of which should be entitled to hold their offices as long as the tribunal itself should exist and they should behave well and continue competent, in the judgment of as many as one-third of each branch of the legislature, on an address, or of one-third of the senate, on an impeachment : And, to prevent evasion, they have provided that, whilst an incumbent judge of the Appellate Court may be removed from his office by a concurrent vote of two-thirds, neither the appellate tribunal, nor the office itself, shall be subject to legislative abolition.

There is a radical difference in the stability of the supreme and inferior courts. The first is constitutional-the last is only statutory. As the constitution itself establishes the Court of Appeals, this tribunal can be abolished by a change of the constitution alone. But as the circuit courts are established by statute, the su- preme power, that is, a legislative majority, may repeal it, and thereby abolish these courts ; and, of course, the office of judge ceases with the abolition of his court. It would be certainly incompatible with the genius of the constitution to abolish the circuit courts, merely to get clear of the incumbent judges: Yet, as the power to abolish exists, the motive of the abolition cannot judicially affect the validity of the act. And, as the organization of inferior courts is deferred, by the constitution, to legislative experience and discretion ; and as, moreover, a new system of such courts may often be usefully substituted for one found to be inel- igible, the legislature ought not to be restrained from certain melioration, by a fear of shaking the stability of the judiciary. The constitutional inviolability of the Court of Appeals, which may rectify the errors of the inferior tribunal, may sufficiently assure judicial independence and rectitude.

The fundamental immutability of the Court of Appeals, and the value of the du- rable tenure by which the judges hold their offices, have been impressively illus- trated in the history and results of "the relief system," and resulting "old and new court," which agitated Kentucky almost to convulsion for several years-the most pregnant and memorable in the annals of the State. That system of legislative "relief," as it was miscalled, was initiated in 1817-18, by retrospective prolonga.

495

COURT OF APPEALS.

tions of replevins, of judgments and decrees-and it was matured, in 1820, by the establishment of the Bank of the Commonwealth, without either capital or the guaranty of state credit, and by subsidiary enactments extending replevins to two years in all cases in which the creditor should fail to endorse on his execution his consent to take, at its nominal value, local bank paper greatly depreciated. 'The object of the legislature, in establishing such a bank, and in enacting such co-op- erative statutes as those just alluded to, was to enable debtors to pay their debts in much less than their value, by virtually compelling creditors to accept much less, or incur the hazards of indefinite and vexatious delays.

The constitutionality of the Bank of the Commonwealth, though generally doubt- ed, was sustained by many judicial recognitions by the Court of Appeals of Kentucky, and finally by an express decision in which the then judges (Robert- son, chief justice, and Underwood and Nicholas, judges) without expressing their own opinions, deferred to those incidental recognitions by their predecessors, and also to the opinion of the Supreme Court of the United States, in the case of Craig vs. Missouri, in which that court defined a " bill of credit," prohibited by the national constitution, to be a bill issued, as currency, by a State and on the credit of the State. The notes of the Bank of the Commonwealth, though issued by and in the name of the State of Kentucky, were not issued on the credit of · the State, but expressly on the exclusive credit of a nominal capital dedicated by the charter-and this known fact produced the rapid depreciation of those notes ; and, consequently, the same Supreme Court of the United States, affirmed the said decision of the Appellate Court of Kentucky, as it was compelled to do by its own authority, in Craig vs. Missouri, unless it had overruled so much of that decision as declared that it was an indispensable characteristic of a prohib- ited " bill of credit," that it should be issued on the credit of the State. There is much reason for doubting the correctness of these decisions by the national judiciary-and, if they be maintained, there is good cause for apprehending that the beneficent policy of the interdiction of State bills of credit may be entirely frustrated, and the constitutional prohibition altogether paralysed or eluded.

When the validity of the statutes retrospectively extending replevins, was brought before the Court of Appeals, the three judges then constituting that court, (Messrs. Boyle, chief justice, and Owsley and Mills, judges,) delivered separate opinions, all concurring in the conclusion that those statutes, so far as they retro- acted on contracts depending for their effect on the law of Kentucky, were incon- sistent with that clause in the federal constitution, which prohibits the legisla- tures of the several states in the union from passing any act "impairing the obligation of contracts," and also, of course, with the similar provision in the constitution of Kentucky, inhibiting any such enactment by the legislature of this State. A more grave and eventful question could not have been presented to the court for its umpirage. It subjected to a severe, but decisive ordeal, the personal integrity, firmness and intelligence of the judges, and the value of that degree of judicial independence and stability contemplated by the constitution. The question involved was new and vexed ; and a majority of the people of the State had approved, and were, as they seemed to think, vitally interested in maintaining their constituent power to enact such remedial statutes.

Under this accumulated burthen of responsibility, however, the court being of the opinion that the acts impaired the obligation of contracts made in Kentucky antecedently to their date, honestly and firmly so decided, without hesitation or dissent. The court argued, Ist. That every valid contract had two kinds of obli- gation-the one moral, the other legal or civil; that the fundamental interdicts applied to the legal obligation only, because, as moral obligations are as immuta- ble as the laws of God, and depend on the consciences of men, and therefore cannot be impaired by human legislation or power-consequently, it would be ridiculously absurd to suppose that the constitution intended to interdict that which, without any interdiction, could not be done. 2d. That, as moral obliga- tion results from the sanctions of natural law, so civil obligation arises from the sanctions of human law ; that, whenever the laws of society will not uphold nor enforce a contract, that contract possesses no civil obligation, but may be alone morally obligatory ; that the obligation, whether moral or civil, is the chain, tie, or ligature, which binds, coerces, persuades, or obliges the obligor ; that all civil obligation, therefore, springs from and is regulated by the punitory or remedial

496

SKETCH OF THE

power of human law; that the destruction or withdrawal of all such power, must annihilate all merely civil obligation ; that, consequently, that which im- pairs such power must, to the same extent, impair such obligation; and, that, whatever renders the remedial agency of the law less certain, effectual or valua- ble, impairs it ; and, also, necessarily impairs, therefore, the obligation which it creates. 3d. That the civil obligation of a contract depends on the law of the place when and where it is made; and that any subsequent legislation that essentially impairs the legal remedy for maintaining or enforcing that contract, must, consequently, so far, impair its legal obligation. 4th. That, if a retro- active extension of replevin from three months to two years, would not impair the obligation of a contract made under the shorter replevin law, the like prolon- gation to one hundred years would not impair the obligation ; and, if this would not, the abrogation of all legal remedy could not. 5th. That it is impossible that legislation can destroy or impair the legal obligation of contracts, otherwise than by operating on the legal remedies for enforcing them ; and, that, consequently, any legislation retro-actively and essentially deteriorating legal remedy, as certainly and essentially impairs the legal obligation of all contracts on which it so retro- acts: And, finally, therefore, that the retrospective extension of replevin in Kentucky, was unconstitutional and void.

Unanswerable and conclusive as this mere skeleton of the court's argument may be, yet the decision excited a great outcry against the judges. Their authority to disregard a legislative act as unconstitutional was, by many, denied, and they were denounced as "usurpers,-tyrants,-kings." At the succeeding session of the legislature, in the fall of 1823, a long, verbose, and empty pre- amble and resolutions, for addressing them out of office, were reported by John Rowan, to which the judges responded fully and most effectually. But after an able and boisterous debate, the preamble and resolutions were adopted by a majority less than two-thirds. The judges-determined to stand or fall by the constitution-refused to abdicate. At the next session of the legislature, in 1824, there then being a still larger majority against the judges and their de- cision,-but not quite two-thirds,-the dominant party now became furious and reckless, passed an act, mis-entitled " an act to reorganize the Court of Appeals ;" the object and effect of which, if sustained, were to abolish the " old" constitu- tional "court," and substitute a " new" legislative " court." The minority in that legislature united in a powerful protest against the "reorganizing act," which, on the presentation of it to the house of representatives by George Rob- ertson, by whom it was written, was, unceremoniously, ordered to be entered on the journal of that house, without being read. A copy, however, which was read in the senate, was refused a place on the journal of that body,-and a "new court" senator, coming into the other house immediately afterwards, and there learning that the protest had, unheard, been admitted to the journal of that house, told Mr. Rowan that it was "the devil," and if embalmed in the record, would blow " the new court party sky high." Whereupon, a reconsideration was mo- ved, and the memorable document was kicked out of that house also." But it could not be strangled. It lived and triumphed. It was published as an unan- swerable text, and rallied and electrified the friends of the constitution, order. and justice.

The "new court " (consisting of William T. Barry, chief justice, and James Haggin, John Trimble, and Rezin H. Davidge, judges,) took unauthorized pos- session of the papers and records in the office of the Court of Appeals, appointed Francis P. Blair, clerk, and attempted to do business and decide some causes, their opinions on which, were published by Thomas B. Monroe, in a small duo- decimo volume, which has never been regarded or read as authority. The judges of the constitutional Court of Appeals were thus deprived, without their consent, of the means of discharging official duties properly ; and, the people not know- ing whether the " old " or the " new court" was the constitutional tribunal of revision, some appealed to the one, and some to the other. In this perplexing cri- sis of judicial anarchy, the only authoritative arbiter was the ultimate sovereign- the freemen of the State at the polls. To that final and only tribunal, therefore, both parties appealed ; and no period, in the history of Kentucky, was ever more pregnant, or marked with more excitement, or able and pervading discussion, than that which immediately preceded the annual elections in the year 1-25.

497

COURT OF APPEALS.

The portemous agony resulted in the election, to the house of representatives, of a decisive majority in favor of the " old court," and against the constitutionality of the "new court." But only one-third of the senators having passed the ordeal of that election, a small " new court" majority still remained in the senate ; and, disregarding the submission of the question to the votes of the people, that little majority refused to repeal the "reorganizing act," or acknowledge the existence of the " old court." 'I'his unexpected and perilous contumacy, brought the antag- onist parties to the brink of a bloody revolution. For months the commonwealth was trembling on the crater of a heaving volcano. But the considerate prudence of the " old court party" prevented an eruption, by forbearing to resort to force to restore to the " old court" its papers and records, which the minority guarded, in Blair's custody, by military means-and, also, by appealing, once more, to the constituent body, in a printed manifesto prepared by George Robertson, signed by the members constituting the majority of the popular branch of the legisla- ture, and exposing the incidents of the controversy and the conduct of the defeated party. The result of this last appeal was a majority in the senate, and an augmented majority in the house of representatives in favor of repealing as unconstitutional, the "act to reorganize the Court of Appeals." That act was . accordingly repealed in the session of 1826-7, by " an act to remove the uncon- stitutional obstructions which have been thrown in the way of the Court of Appeals," passed by both houses the 30th December, 1826-the governor's objec- tions notwithstanding. The " new court" vanished, and the " old court," redeemed and reinstated, proceeded, without further question or obstruction, in the discharge of its accustomed duties.

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

Collins historical sketches of Kentucky. History of Kentucky: Vol. I, Part 94

Author: Collins, Lewis, 1797-1870. cn; Collins, Richard H., 1824-1889. cn Publication date: 1874 Publisher: Covington, Ky., Collins & Co. Number of Pages: 1452

Author: Collins, Lewis, 1797-1870. cn; Collins, Richard H., 1824-1889. cn
Publication date: 1874
Publisher: Covington, Ky., Collins & Co.
Number of Pages: 1452