Collins historical sketches of Kentucky. History of Kentucky: Vol. I, Part 95

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 95

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As soon as a quietus had been given to this agitating controversy, John Boyle, who had adhered to the helm throughout the storm in a forlorn hope of saving the constitution, resigned the chief-justiceship of Kentucky, and George M. Bibb, a distinguished champion of the "relief" and " new court " parties, was, by a relief governor and senate, appointed his successor. Owsley and Mills retained their seats on the appellate bench until the fall of 1828, when they also resigned, and, being re-nominated by Gov. Metcalfe, who had just succeeded Gov. Desha, they were rejected by a relief senate, and George Robertson and Joseph R. Un- derwood (both " anti-relief" and " old court") were appointed to succeed them. Then Bibb forthwith resigned, and there being no chief justice until near the close of 1829, these two judges constituted the court, and, during that year. de- clared null and void all the acts and decisions of the " new court," and disposed of about one thousand cases on the docket of the Court of Appeals. In December, 1829, Robertson was appointed chief justice, and Richard A. Buckner judge of the Court of Appeals. And thus, once more, " the old court" was complete, homogeneous and peaceful, and the most important question that could engage the councils or agitate the passions of a state, was settled finally, and settled right.

This memorable contest between the constitution and the passions of a popular majority-between the judicial and legislative departments-proves the efficacy of Kentucky's constitutional structure, and illustrates the reason and the importance of that system of judicial independence which it guaranties. It demonstrates that, if the appellate judges had been dependent on a bare majority of the people or their representatives, the constitution would have been paralyzed, justice dethroned, and property subjected to rapine, by tumultuary passions and numer- ical power. And its incidents and results not only commend to the gratitude of the living and unborn, the proscribed judges and the efficient compatriots who dedicated their time and talents for years to the rescue of the constitution, but also, impressively illustrate the object and efficacy of the fundamental limitations in the will of the majority-that is, the ultimate prevalence of reason over pas- sion-of truth over error-which, in popular governments, is the sure offspring, only, of time and sober deliberation, which it is the object of constitutional checks to ensure.

As first and now organized, the Court of Appeals consists of three judges, one of whom is commissioned " chief justice of Kentucky." In the year 1801, the number was increased to four, and Thomas Todd (who had been clerk of that court, and in the year 1807 was appointed a judge of the Supreme Court of the United States) was the first who was appointed fourth judge. In the year 1813,

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the number was prospectively reduced to three; and, all the incumbents having immediately resigned, two of them (Boyle and Logan) were instantly re-com- missioned, and Robert Trimble, who was commissioned by Gov. Shelby, having declined to accept, Owsley, who had been one of the four judges who had re- signed, was afterwards also re-commissioned ; and ever since that time, the court has consisted of three judges only.

All the judges have always received equal salaries. At first the salary of each judge was $666.66. In the year 1801, it was increased to $833.33 ; in the year 1806, to $1000 ; in the year 1815, to $1500 ; in the year 1837, to $2000 ; and in the year 1843, it was reduced to $1500. During the prevalence of the paper of the Bank of the Commonwealth, the salaries were paid in that currency, which was so much depreciated as, for some time, to reduce the value of each salary to about $750.

The following is a chronological catalogue of the names of all who have been judges of the Appellate Court of Kentucky :

CHIEF JUSTICES.

Harry Innis,

com. June 28, 1792 |

John Boyle,

com. M'ch 20, 1810

George Muter,

Dec. 7, 1792

George M. Bibb,*

Jan. 5, 1827

Thomas Todd,

Dec. 13, 1806

George Robertson, 66 Dec. 24, 1829

Felix Grundy,

April 11, 1807

E. M. Ewing, 66 April 7, 1843

Ninian Edwards,

66 Jan. 5,1808

Thos. A. Marshall, " June 1, 1847

George M. Bibb,

May 30, 1809

* Resigned Dec. 23, 1828.

JUDGES.

Benj. Sebastian,

com. June 28, 1792 William Owsley, com. April 8, 1810

Caleb Wallace,

June 28, 1792

John Rowan,

Jan. 14, 1819

Thomas Todd,

66 Dec. 19, 1801

Benjamin Mills,

66 Feb. 16, 1820

Felix Grundy,

66 Dec. 10, 1806

George Robertson,

Dec. 24, 1828

Ninian Edwards,

66 Dec. 13, 1806

Jos. R. Underwood, " Dec. 24, 1828

Robert Trimble,

April 13, 1807

Richard A. Buckner, "

Dec. 21, 1829

William Logan,*

". Jan. 11, 1808

Samuel S. Nicholas, "

Dec. 23, 1831

George M. Bibb,

66 Jan. 31, 1808

Ephraim M. Ewing, "

March 5, 1835

John Boyle,

April 1, 1809

Thos. A. Marshall, 66 M'ch 18, 1835

William Logan,

Jan. 20, 1810

Daniel Breck, April 7, 1843

James Clark,

66 M'ch 29, 1810 | James Simpson, * Resigned January 30, 1808.

66 June 7,1847

Of the chief justices, Muter, Boyle, and Robertson were in commission, collec- tively, about 41 years-Muter for about 11, Boyle 16, and Robertson nearly 14 years ; and of all the justices of the court, Logan, Mills, and Owsley held their stations longest.

In the year 1803, Muter, very poor and rather superannuated, was induced to resign by a promise of an annuity of $300, which, being guarantied by an act of the legislature in good faith, was complained of as an odious and unconstitutional ' provision," and was taken away by a repealing act of the next year.

Under the first constitution of 1792, the appellate judges were required to state in their opinions such facts and authorities as should be necessary to expose the principle of each decision. But no mode of reporting the decisions was provided by legislative enactment until 1815, when the governor was authorized to appoint a reporter. Previously to that time, James Hughes, an eminent "land lawyer." had, at his own expense, published a volume of the decisions of the old District Court of Kentucky whilst an integral portion of Virginia, and of the Court of Appeals of Kentucky, rendered in suits for land-commencing in 1785 and end- ing in 1801 : Achilles Sneed, clerk of the Court of Appeals, had, in 1805, under the authority of that court, published a small volume of miscellaneous opinions, copied from the court's order book; and Martin D. Hardin, a distinguished lawyer, had, in 1810, published a volume of the decisions from 1805 to 1808, at the instance of the court in execution of a legislative injunction of 1807, requiring the judges to select a reporter. George M. Bibb was the first reporter appointed by the Governor. His reports, in four volumes, include opinions from 1803 to

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1809. Alexander K. Marshall, William Littell, Thomas B. Monroe, John J. Marshall, James Dana, and Benjamin Monroe were, successively, appointed, and reported afterwards. The reports of the first, are in three volumes-of the second, in six-of the third, in seven-of the fourth, in seven-of the fifth, in nine-and the last, who is yet the reporter, has published seven volumes. Consequently, there are now forty-six volumes of reported decisions of the Court of Appeals of Kentucky. Of these reports, Hardin's, Bibb's, and Dana's are most accurate- Littell's, Thomas B. Monroe's and Ben. Monroe's next. Those of both the Marshall's are signally incorrect and deficient in execution. Dana's in execution and in the character of the cases, are generally deemed the best. Of the decis- ions in Dana, it has been reported of Judge Story that he said they were the best in the Union-and of Chancellor Kent, that he said he knew no state decisions superior to them. And that eminent jurist, in the last edition of his Commenta- ries, has made frequent reference to opinions of chief justice Robertson, and has commended them in very flattering terms.

The comprehensive jurisdiction of the court imposes upon it duties peculiarly onerous. An act of Assembly of 1796, confers on this Appellate Court jurisdic- tion of appeal or writ of error, "in cases in which the inferior courts have juris- diction." A writ of error may be issued to reverse a judgment or decree for one cent; but, by an act of 1796, no appeal can be prosecuted to reverse a judgment or decree, unless it relate to a franchise or freehold, or (if it do not) unless the amount of it, "exclusive of costs," be at least $100. But in cases of decretal divorces, and in fines for riots and routs, the legislature has denied to the court any revising jurisdiction. Still, although it has no original jurisdiction excepting only in the trial of clerks, and although it has no criminal jurisdiction in any case of felony, the average number of its annual decisions has, for many years. been about five hundred. The court is required to hold two terms in each year- one commencing the first Monday in May, the other the first Monday in Septem- ber: and no term is allowed to be less than forty-eight juridical days. By a rule of court, any party may appear either by himself or his counsel, and in person or by brief. And a majority of the cases have been decided without oral argument.

A statute of 1816 enacted, that " all reports of cases decided in England since the 4th of July, 1776, should not be read in court or cited by the court." The object of this strange enactment was to interdict the use of any British decision since the declaration of American independence. The statute, however, literally imports, not that no such decision shall be read, but that " all" shall not be. And this self-destructive phraseology harmonises with the purpose of the act-that is, to smother the light of science and stop the growth of jurisprudence. But for many years, the Court of Appeals inflexibly enforced the statute-not in its let- ter, but in its aim. In the reports, however, of J. J. Marshall, and Dana, and Ben. Monroe, copious references are made (without regard to this interdict) to post-revolutionary cases and treatises in England, and now that statute may be considered dead.

The Appellate Court of Kentucky has generally been able, and always firm, pure, and faithful. It has been illustrated by some names that would adorn any bench of justice or age of jurisprudence. And it might have been oftener filled by such jurists, had not a suicidal parsimony withheld from the judges an ade- quate compensation for the talents, learning, labor, and responsibility which the best interests of the commonwealth demand for the judicial service, in a court appointed to guard the rights and the liberties of the people, and to settle con- clusively the laws of the commonwealth.

The foregoing Sketch of the Court of Appeals of Kentucky was prepared for the original edition of this work, in 1847, by ex-chief justice GEORGE ROBERTSON. He was selected for the purpose, by Judge Collins, and invited to write the sketch, as of all men living probably the best qualified to prepare it. He was then in his prime, 57 years old; had been upon that bench more than fourteen years, its chief justice for more than thirteen years ; had been -not a silent and interested observer merely-but an actor and leader in the thrilling scenes and trying times when that court stood up as a breakwater,

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COURT OF APPEALS.

in the wildest of civil storms, against the most tempestuous waves that ever threatened the public safety, the law and order, and tranquillity of the State. He felt a delicacy about writing it, for he must needs speak of himself; but he consented, upon Judge Collins' assurance that the author's name should not be published with it. The proper acknowledgment was given, in the Preface, by saying it was contributed by "a distinguished citizen of the State."

The author of the present work appealed to Judge Robertson, in 1871, while an invalid in body but his mind still " clear as a bell," to take up the thread of the sketch, where he had dropped it in 1846, and weave it complete -that it might be entirely his handiwork. He was gratified at the compli- ment, but thought most prudent to decline.

From the date of the foregoing sketch, in 1847, until the important change in the construction of the court in 1851, under the new Constitution of 1850, only one change upon the bench occurred; Judge Ewing resigned, and was succeeded by Asher W. Graham, who was commissioned May, 1849.

The following is a chronological catalogue of all who have been judges of the Court of Appeals of Kentucky since June, 1847-(continued, from the list on page 498). The dates in August are all the first Monday, and those in May, 1851, the second Monday :

CHIEF JUSTICES.

James Simpson ... June, 1851 to Aug., 1852 Elijah Hise ......... Aug., 1852 to Aug., 1854 Thos. A. Marshall. Aug., 1854 to Aug., 1856 B. Mills Crenshaw#.Aug., 1856toMay 5,1857 Zachariah Wheat.June15, 1857toAug., 1858 James Simpson ... Aug., 1858 to Aug., 1860 Henry J. Stites ... Aug., 1860 to Aug., 1862 Alvin Duvall ...... Aug., 1862 to Aug., 1864 Joshua F. Bullittt ... Aug., 1864toJune., 1865 WilliamSampson .June5, 1865to Feb.5,1866 Thos. A. Marshall .. Feb.12, 1866 toAug., 1866 BelvardJ.Peters ... Aug., 1866 to Aug., 1868 RufusK. Williams.Aug., 1868 to Aug., 1870 GeorgeRobertson ?.. Aug., 1870toSept.5,1871 William S. Pryor .... Sept.6,1871to Aug., 1872 MordecaiR. Hardin ... Aug., 1872toAug., 1874 Belvard J. Peters ..... Aug., 1874toAug., 1876

* Died May 5, 1857. t Died Feb. 11, 1861. # Removed by address, June 5, 1865. See pp. 160, 161, ante. I Died Feb. 5, 1866.

¿ Resigned, from protracted indisposition, Sept. 5, 1371.

JUDGES.

Asher W. Graham ....... com'd May 1, 1849 James Simpson ... May, 1851 to Aug., 1852 Elijah Hise .. .. May, 1851 to Aug., 1854 Thos. A. Marshall. May, 1851 to Aug., 1856 B. Mills Crenshaw# ... May, 1851toMay5, 1857 James Simpson .... Aug., 1852 to Aug., 1860 HenryJ.Stites ..... Aug., 1854 to Aug., IS62 Alvin Duvall ...... Aug., 1856 to Aug., 1664 Zachariah Wheat.June15, 1857toAug., 1858 Henry C. Woodt .. Aug., 1858 to Feb. 11, 1861 Belvard J. Peters.Aug., 1860 to Aug., 1868 JoshuaF. Bullittt.M'ch20,1861toJune, 1865 RufusK. Williams. Aug., 1862 to Aug., 1870 George Robertson ?. Aug., 1864toSept.5,1871 William Sampson ... June5, 1865toAug., 1865 William Sampson ... Aug., 1865 to Feb.5,1866 Thos. A. Marshall .. Feb. 12, 1866to Aug., 1866 MordecaiR. Hardin .. Aug., 1866to Aug., 1874 Be/vardJ. Peters ...... Aug., 1868to Aug., 1876 William Lindsay .... Aug., 1870to Aug., 1878 William S. Pryor ... Sept.6,1871toAug., 1872 William S. Pryor .... Aug., 1872 to Aug., 1880 Martin H. Cofer .. Aug., 1874 to Aug., 1882

Under the new Constitution, the court of appeals-which has appellate jurisdiction only, co-extensive with the State-consists of four judges, elected by the people, one each second year, for a term of eight years ; the last two years of which the incumbent shall be chief justice; compensation is not to be diminished during their term of office ; each of four appellate districts elects one judge, alternately ; vacancies are to be filled by election, but if the unexpired term be less than one year the governor appoints the judge ; the qualifications are-citizenship, two years' residence, at least 30 years of age, and eight years' practice (inclusive of service, if any, upon the bench of a court of record); its sessions to be held at the seat of government, but the legislature may change the location. Appeals lie whenever the amount in controversy is $100, in all but a few excepted cases. Of these, one was felony ; but since the criminal code of July 1, 1854, repealing this exception, many cases have been appealed, and some most important decisions rendered upon intricate points of criminal law.

If the court is equally divided in the decision of a cause, the judgment of the inferior court stands affirmed. Two terms were held annually, begin- ning on the first Mondays in June and December, until the new General Statutes went into effect, Dec. 1, 1873; since when, the court fixes the terms, and is to sit, if necessary, every juridical day except in July and August. The

501

COURT OF APPEALS.

court directs which of its decisions shall be published, and elects the Re- porter biennially-to whom the State formerly paid $1, but now pays $1.50 for every 100 pages of, formerly 200, but now 300 copies of his bound reports, for State use. His further compensation comes from the private sales of his reports.

The following is a chronological catalogue of the Reports and Reporters of the Court of Appeals :

REPORTS AND REPORTERS OF KENTUCKY.

Hughes' Reports, 1 vol. By James Hughes, 1785-1801, 7 years.

Printed Decisions (Sneed's Reports), 1 vol ... By Achilles Sneed, 1801-05, 4 years.

Hardin's Reports, 1 vol. .By Martin D. Hardin, 1805-08, 3 years."

Bibb's Reports, 4 vols. .By George M. Bibb, 1808-17, 9 years.

Marshall's Reports, 3 vols. .By Alex. K. Marshall, 1817-21, 4 years.

. Littell's Reports, 5 vols. . By William Littell, 1822-24, 3 years.

Littell's Select Cases, 1 vol

. By William Littell, 1795-1821.

J. J. Marshall's Reports, 7 vols.

By Thomas B. Monroe, 1824-28, 5 years.

Monroe's Reports, 7 vols. .By John J. Marshall, 1829-32, 4 years.

Dana's Reports, 9 vols .By James Dana, 1833 -- 40, 7 years.

Ben. Monroe's Reports, 18 vols. By Ben. Monroe, 1840-58, 18 years.

Metcalfe's Reports, 4 vols By James P. Metcalfe, 1859-63, 4 years.

Duvall's Reports, 2 vols. By Alvin Duvall, 1863-66, 3 years.

Bush's Reports, 8 vols .. By Wm. P. D. Bush, 1866-72, 6 years.

Bush's 9th volume was passing through the press, in July, 1874.

The salary of the judges was reduced to $1,500, in 1843; was raised March 9, 1854 to $2,000; Jan. 1, 1866 to $2,700; Jan. 1, 1867 to $4,000, and the terms increased to 100 juridical days ; Jan. 30, 1871 to $5,000, and the terms abolished-the court to sit every juridical day, if the business requires, ex- cept the months of July and August, and from Dec. 23 to Jan. 2. The salary of circuit judges was $1,400 in 1851; raised on March 9, 1854, to $1,800; Feb., 1865, to $2,000; Jan. 1, 1866, to $2,200; again raised; and on Feb. 11, 1871, raised to $3,000.

On Nov. 21, 1865, the office, at Frankfort, of the clerk of the court of ap- peals and several other offices were destroyed by fire : consuming all the books and records of the court then in the office. [See ante, p. 165.]

In the case of Griswold vs. Hepburn, 2 Duvall, 20, decided June 17, 1865 Judge Robertson delivered the opinion of the majority of the court (3 out of 4); Judge Williams dissenting. The court decided that so much of the act of congress of Feb. 25, 1862, as enacted that "United States treasury notes (authorized by that act) shall also be lawful money, and a legal tender in payment of all debts, public and private, in the United States," on private contract, was clearly unconstitutional. Congress and the States are alike prohibited from making anything but coined money a legal tender; no State shall coin money ; Congress alone has that power. To make treasury notes a legal tender in satisfaction of a contract for money, deriving its obligation from State laws, unconstitutionally impairs the obligation of the contract. Congress has no power to pass laws impairing the obligation of contracts, beyond the expressly granted power over bankruptcy.

On Sept. 29, 1866, in Hall vs. Hiles, 2 Bush, 532, the court decided that inasmuch as-since the legal tender enactment of Feb. 25, 1862-gold, silver, &c., and legal tender notes of the United States, have different marketable values, contracts to pay in gold or silver, &c., should be specifically enforced . by the courts.

The court has decided many other questions entirely new in American jurisprudence, and not a few never passed upon in any court in the world- most of them growing out of the civil war, or out of the actions and practice introduced by the civil and criminal codes. Its contributions to the juris- prudence of the country have continued since 1847, as before, fresh, discrimi- nating, and important; and have maintained the high character of a court theretofore renowned all over the United States, and favorably known in England, for the eminence of its jurists, and for its sound and able expositions of the law and the Constitution. Kentucky has had good reason to be proud of her supreme court, the Court of Appeals.

HISTORICAL SKETCH

PUBLIC EDUCATION IN KENTUCKY.

THE Statutes of Kentucky show that the first experiments to extend the fostering aid and care of State patronage to the interests of general education were made nearly three-quarters of a century ago. An act of the Legislature, approved February 10, 1798, donated and set apart, of the public lands of the Commonwealth, 6000 acres each, for the benefit and support of Franklin, Salem, and Kentucky Academies, and for Lexington and Jefferson Seminaries. Similar acts were approved December 21, 1805, and January 27, 1808, embrac- ing like provisions, and extending them to all the existing counties of the State. Within twenty years from the passage of the first act above, the following ad- ditional academies and seminaries were endowed with the grant of 6000 acres each: Shelby, Logan, Ohio, Madison, New Athens, Bethel, Bourbon, Bracken, Bullitt, Fleming, Hardin, Harrison, Harrodsburg, Lancaster, Montgomery, New- port, Newton, Rittenhouse, Stanford, Washington, Winchester, Woodford, Som- erset, Transylvania, Glasgow, Greenville, Liberty, Rockcastle, Lebanon, Knox, Boone, Clay, Estill, Henry, Greenup, Grayson, Warren, Breckinridge, Caldwell, Gallatin, Henderson, Union, Adair, Allen, Daviess, and Pendleton.

A law provided "that all the lands lying within the bounds of this Com- monwealth on the south side of Cumberland river, and below Obed's river, now vacant, etc., shall be reserved for the endowment and use of seminaries of learning throughout the Commonwealth." The county courts of the several counties were authorized to have surveyed, located, and patented within their respective counties, or within the above reserve, or elsewhere in the State, 6000 acres each for Seminary purposes, and all such lands were exempted from taxation. These grants were noble in purpose and liberal in plan. But by subsequent ill-considered and unwise acts, the lands were allowed to be sold by county authorities; and the proceeds of sales, in the hands of self-existing and self-perpetuating trusteeships, were prodigally expended and squandered in every conceivable way. In some counties these proceeds are altogether lost to view; in others, the remains are lodged in the hands of the trustees ap- pointed, and forgotten or neglected by the interested public; while in others, again, these remains of funds or lands are yet held for their original uses by the trustees. But, for the want of wise laws and more competent and guarded management, a great plan, and its means of success, for the establishment and support of a system of public seminaries of a high order in each county, was rendered an abortive failure. It has been affirmed that in a single county, these lands, if they had been held and rented or leased out, could now be sold for near $500,000. This is an extreme instance, but we may safely assume that the lands might have been made to realize a permanent and producing average school fund of $60,000 in each county, under proper direction and control.

An act of December 18, 1821, provided that one-half the net profits of the Bank of the Commonwealth should be set apart as the "Literary Fund," to be distributed in just proportions to the counties of the State for the support of a general system of education, under legislative direction; and that one- half of the net profits of the branch banks at Lexington, Danville, and Bowl- ing Green, should be donated to Transylvania University, Center College, and the Southern College of Kentucky, respectively. Until the failure of the old Commonwealth's Bank of Kentucky, a few years later, this last appropriation yielded about $60,000 per annum.

Hong. Win. T. Barry, J. R. Witherspoon, D. R. Murray, and John Pope, from a committee appointed at the same time to confer with eminent educators, collect information, and prepare a plan of common schools, to be supported

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PUBLIC EDUCATION IN KENTUCKY.

by these revenues, made an able and elaborate report to the next General As- sembly in 1822, with an accompanying report from Hon. Geo. Robertson. In the report of the Committee they publish most able and instructive letters in advocacy of public education, as an essential element of good statesmanship, and as incidental to the successful maintenance of republican institutions, from Ex-Presidents John Adams, Thomas Jefferson, James Madison, and from Hon. Robert G. Payne. Though the report of the Committee was sent in to the Legislature with an approving message by Gov. Adair, that honorable body failed to improve the occasion and to pass suitable laws in behalf of the great interests involved.

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Collins historical sketches of Kentucky. History of Kentucky: Vol. I, Part 95

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