USA > Kentucky > The history of Kentucky, from its earliest discovery and settlement, to the present date, V. 2 > Part 38
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Tenth-Two branches of the United States Bank entered the State in 1817. They were followed by an act of legislation imposing a State tax of sixty thousand dollars upon each of the branches. The validity of this tax became a question of fierce litigation. The tax was at first sustained by the Appellate Court of Kentucky. The same tribunal decided that the law in- corporating the United States Bank was unconstitutional. The Supreme Court of the United States ruled differently on both points. These decisions entered largely into the bitter political contests of the times. They were followed in the United States Supreme Court by the great case of Green versus Biddle, in which the occupying-claimant law in Kentucky was de- cided to be unconstitutional. The opinion in Green versus Biddle gave great alarm throughout the Commonwealth, and led to a strong remonstrance to Congress from the Kentucky Legislature. Henry Clay and George Bibb ., were sent to Virginia to effect some compromise of the matter, but they
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7.3.8
HISTORY OF KENTUCKY.
failed in their efforts because of the hostile action of the Virginia Senate. The case of Green versus Lifter went a step further, and held that it was not " necessary for a plaintiff, in a writ of right, to have actual possession in order to maintain his suit. This was exactly contrary to the ruling of the Appel- late Court of Kentucky, in the case of Speed versus Buford. A feeling of general insecurity as to the land titles of the State was the result of these conflicting opinions.
Eleventh-In 1820, the Commonwealth's Bank was chartered, with a capital of two million dollars and a two-years' replevin law to support it. This was followed, in 1822, in a decision by Judge James Clark, of the Bourbon Circuit Court, in the case of Blair versus Williams, holding the re- plevin law of 1820 to be unconstitutional. The judge was strongly censured by the Legislature for his opinion. About one year after, the Appellate Court sustained this decision of Judge Clark. The Legislature again pro- tested. This opened up a contest between the Legislature and the judicial departments of the government. The result was the attempted abolition of the old court and the creation of a new one by the reorganizing act of 1824. Two years afterward, in 1826, this act was repealed and the old court re- placed upon its former footing. The act of repeal is styled "an act to re- move the unconstitutional obstacles thrown in the way of the Court of Appeals." Its historical preamble states that the Appellate Court was cre- ated by the Constitution; that the judges thereof hold their offices during good behavior, and could only be removed by impeachment or address; that the Legislature had attempted to obstruct the constitutional court and erect another upon its ruins by the acts of 1824 and 1825. The preamble shows that the latter acts had been decided by the people at two successive elec- tions to be dangerous violations of the Constitution, and subversive of the long-tried principles upon which experience had demonstrated that the se- curity of life, liberty, and property depends. Accordingly, the laws of 1824-25 were repealed, and the former laws were revived, re-enacted, and declared to be in full force.
Twelfth-Whatever may be thought of the policy of some of the acts of legislation passed during this exciting time of our history, it must be ad- mitted that Amos Kendall was right when he said. " The impartial historian will date from this period the origin of the noblest institutions which do honor to our State. A university regulated, a lunatic asylum established. a hospital for the sick and penniless erected, an asylum for the deaf and dumb called into existence, learning patronized, a foundation laid for a system of common schools, these, and many generous and noble acts of legislation are the fruitage of this era."
Thirteenth-During this period, most of the noted land suits of the State were settled. The celebrated land-lawyers then reached the zenith of their fame-such as Hughes, Allen, Wickliffe, Rowan, Barry, Bibb. Blair, and others, who were the leading spirits in these suits. Judge Bibb, in the intro-
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LAW REGULATING TIPPLING-HOUSES.
duction to his reports, speaking of the land law of the State and the decisions thereunder, has said : "In the history of this branch of our jurisprudence, if some oscillations in judicial decisions be remarked, they will be compara- tively few. Considering the complexity of the claims authorized by the act. of 1779, the novelty of the scheme, and the ocean created for the judges to explore, a pleasing admiration is excited that a system of jurisprudence cre- ated by successive judicial decisions should have been brought to its present state of equity and justice without much greater clashing of decisions. The court has endeavored to place the landed property of the country upon as sure a foundation, and as nearly approaching to record evidence of title, as the nature of the claims would permit, avoiding as far as could be, to place points of controversy within the power of a solitary witness, paying a just regard to the importance of having the rules of property steady and uni- form, but yet not yielding passive obedience to precedent."
Fourteenth-A local act of this period chartering the Elkhorn Navigation Company is evidence of the enthusiastic and visionary ideas upon the sub- ject of internal improvements which prevailed at the time. Large subscrip- tions were made by citizens of Fayette, Scott, and Woodford counties to the enterprise. A company was formed to lock and dam Elkhorn creek. The object was to carry off the produce of those counties to the Kentucky river. A large warehouse was erected at Lexington for the storage of produce in- tended for transportation on Elkhorn creek. It is needless to say the pro- ject ended in failure.
Fifteenth-A law of this period, regulating and restraining the establish- ment of tippling-houses, contains a preamble drafted in 1820, which tells a bad story for these houses, as presented by their history up to this time. This preamble, in its recitals, shows that tippling-houses were institutions never contemplated by the laws of Kentucky; that they were then to be found in great plenty in every town, village, and neighborhood, throughout the State; that, in fact, the State was completely inundated with these en- gines of vice ; that their influence was great on some portions of society; that industry was checked, purses were drained, constitutions were destroyed, families were disturbed, and citizens were demoralized. This period is noted for the rise and growth of many charitable institutions and business corporations-iron companies, manufacturing companies, hemp companies, steam mill companies, water companies, and two railroad charters, are among its productions in the way of legislation. It is especially rich in charters for the establishment of collegiate institutions. Centre College, Augusta College, Saint Joseph's College, all belong to this period. Then, too, Transylvania took its rise as a State university. Towns were springing up in all parts of the State, and many new counties were organized in the period under review. This carries us to the end of the period named.
The Third Period of our local history begins at 1830 and ends with 1860.
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HISTORY OF KENTUCKY.
The growth of the State during this time is apparent in its statutes. The appreciation of education, and the sentiment with regard to improvement in our roads and the navigation of our rivers, are manifest in the new laws upon the subject of common schools and internal improvements. The seminary system of education was cast aside. A law embodying some of the best points in the New York and New England common-school systems was adopted, in place of the old Virginia system. Turnpike roads and road companies were chartered in all parts of the State. The people became tired of hauling their produce and merchandise over the rough dirt roads then existing. The scenes of long trains of wagons running on the great highway from Maysville to Lexington, and other points of the State, had been witnessed long enough. The practice of relieving these trains by different wagoners joining their teams together, and then calling on the neigh- bors to assist them out of the mud-holes, invoked the efforts of our statesmen to secure aid in this matter from the General Government. The bill to give government aid to the Maysville and Lexington turnpike was passed by Congress, but vetoed by President Monroe. The agitation on the subject of road and river improvements lasted until it forced the passage of a law by our General Assembly, for establishing a permanent system of internal improvements, and aiding navigation upon the largest streams of the State. The act was a remarkable specimen of log-rolling. It promised improve- ments on the roads in the three great sections of the State, and aid to nearly every river and creek, of considerable size, in the Commonwealth. It ulti- mately carried the State to the verge of bankruptcy, and secured but a small portion of the improvements contemplated. It gave birth to our sinking- fund system in 1836, and led to the introduction of several important clauses in the Constitution of 1849. It led to the future protection of the public credit, by engrafting upon that constitution a prohibition of future State aid to internal improvements, without the assent of the people given at the polls.
From this period we may date a strong growth in the pro-slavery senti- ment of the State. A statute made in 1833, prohibiting the importation of slaves into Kentucky, was at first quietly acquiesced in by the people; but when an effort was made to put its provisions into the Constitution of 1849, it led to a most exciting political discussion, and ended in placing in that instrument a more ultra pro-slavery clause than can perhaps be found in the constitution of any other Southern State.
Other important alterations, during the period under review, were the exemption of a considerable amount of property from execution ; restraints put upon the rights of the husband in the real property of his wife: the pre- vention of fraudulent claims against decedents' estates, by requiring such claims to be properly verified; the permission to form limited partnerships; the corporation act: the law requiring payment for property destroyed by mobs; compensation for loss of life occasioned by negligence of railroads;
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ENDING OF THIRD PERIOD.
the extension of the rules of evidence to permit owners of lost baggage to testify in their own behalf; the liberality of sentiment which led to the adop- tion of the New York system of pleading and practice; the reformation of the County Courts; the change in the manner of electing judges, sheriffs, and mag- istrates; the liberality displayed to charitable and reformatory institutions ; prohibition of betting on elections ; the act of 1854, authorizing the geological survey of the State; the disposition to encourage fine arts, as shown in the law authorizing native artists to dispose of their pictures by lottery. These are some of the material alterations of the period considered.
Aside from the foundation and establishment of the common-school sys- tem of the State, this period has been one of great progress in our collegiate and literary institutions. The well-known literary societies, in connection with some of our colleges, were founded then. The Deinologian Society of Center College, in 1837 ; the Tau Theta Kappa Society, of Georgetown Col- lege, in 1839 ; and the Ciceronian Society, of the same institution, in 1840.
The organization and chartering of business corporations of all kinds, banks, railroads, insurance companies, and turnpikes, have been marked char- acteristics of this era.
.The additions to our revenue laws indicate a great step in the wealth and commerce of the State. The new items of taxation embrace gold and silver plate, gold and silver watches, barrels of corn, wheat, and barley, tons of iron ore in its different stages, not to be found on the assessor's books of either period preceding this. The equalization law of 1837 brings to the aid of the State a large residuary property not heretofore given in for taxation. The pervading spirit of equality and justice in this law did much to remove a previous reproach upon our revenue system.
The laws known as the "revised statutes" gathered up the substantial points in all the previous revisions of our laws and put them into a con- nected whole. The work was executed by Squire Turner, S. S. Nicholas, and Charles A. Wickliffe, three of the ablest lawyers of the State. The new matter in this revision is mostly derived from the laws of Virginia, Massa- chusetts, and New York. This revision lasted until superseded by that of 1873. Here ends the third period in our division.
The Fourth Period is now reached in the discussion of our subject. This era carries us through the stirring scenes of the civil war and down to the present date. It leads us through a period of great activity in railroad growth, banking operations, corporate development, intellectual and social progress.
The period opens with the war legislation of the State, a peculiar class of laws, which has already passed away with the emergency which produced them. This legislation breathes a strong spirit of devotion to the Union. It displays also a sentiment of liberality and forbearance to the Confederates when the fortunes of war had gone against them. It is mild, compared with that of some of the States.
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HISTORY OF KENTUCKY.
For the chief laws to suppress the rebellion and aid the Union, we may note the expatriation of all citizens entering the Confederate service, the vacating of the offices of all who went into the Southern army, making it a felony to join the rebels and invade the State, compelling disloyal persons to pay damages for injuries done to property.
For acts of liberality to those in rebellion, we may refer to the laws par- doning all treason against the Commonwealth, granting universal amnesty for acts committed prior to October, 1865, the efforts made in behalf of a complete and early restoration of the States of the South to all their rights in the Union.
The amendment to the Constitution of the United States abolishing slavery was not favored by Kentucky. The mode in which the requisite majority was secured for it was strongly condemned by the people of the State. This single amendment stripped the people of millions of money, without compensation, and swept from the statute-book our entire code of laws pertaining to slavery ; but the consequences of the amendment were accepted by the people in appropriate changes in their law in the matter of permitting negroes to testify and suitable provisions made by the establish- ment of the common-school system among the colored people. The results were cheerfully accepted even by the court of last resort, which decided in the case of the Commonwealth versus Johnson that the portion of our jury laws retaining the word "white" was unconstitutional. The negro is given the fullest protection in his life, liberty, and property. Under this protec- tion the property owned by the colored people in the State would probably reach five million of dollars.
Late alterations in our laws of evidence tend to do away with the old rules upon the subject of competency, and to reduce all questions of the kind to issues of credibility. Persons interested in the result and parties to the record can testify in civil suits. The rule was not quite so liberal in criminal cases as to allow the defendant to testify in his own behalf, but the popular sentiment flowed strongly in that direction, and it has very recently become the law of the State.
The statutory ameliorations of our criminal law are very great. The particulars will be found in the chapter upon crimes, in the revision of 1873. Some features of our criminal jurisprudence, as developed by the courts, merit a passing notice. The judge is not allowed to instruct the jury at large by a running comment on the evidence, as is usual in the English courts. This practice is viewed by our law as dangerous to the rights and liberties of the citizen.
The law of self-defense, in cases of homicide, has been pushed to the utmost limit, in some few of the rulings of the Appellate Court. This was especially true in the cases of Phillips versus the Commonwealth, decided in 1865; Carrico versus same, decided in 1870, and Bohannon versus same, decided in 1871.
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AMENDMENTS TO OUR LAWS.
In Paris versus the Commonwealth, rendered in 1878, the Appellate Court overturned the usually accepted doctrine of implied malice, as a part of the law of the State. That case has been followed in a number of subsequent rulings.
In 1864, in the case of Smith versus the Commonwealth, it was held by Judge Robertson that drunkenness, brought on by sensual or social grati- fication, with no criminal intent, may reduce an unprovoked homicide from murder to manslaughter; and if transient insanity ensue, although it may not altogether excuse, it may mitigate the crime. This decision was subse- quently overruled by the Appellate Court in 1870.
The defense of moral insanity has been pushed by the courts to an in- dulgent extent not sanctioned by many eminent common-law authorities. The plea of an irresistible impulse is accepted as an excuse for a criminal act.
The growing temperance sentiment has made itself felt in the legislation of the times. A stringent local-option law has been passed, and the sale of liquor to inebriates forbidden universally. The divorce law has been so enlarged as to give the husband a divorce for drunkenness on the part of the wife.
The evils incident to the growing power of railroads, in their extortions and discriminations in the matter of freight charges, have been met by strong legislative prohibitions, forbidding such preferences. A railroad commission has been established, and steps have been taken to secure the taxation of railroad property somewhat commensurate with its real value.
The moral sentiments of the people have been consulted in the passage of laws prohibiting the circulation of obscene literature, and providing for liberty of conscience by permitting inmates of our reformatory institutions to select a minister or priest of their own religious persuasion.
Increasing attention to the protection of the public against the effects of empiricism is manifested, by requiring physicians entering upon the prac- tice of medicine to bring some guarantee of suitable qualifications for the discharge of their responsible duties, either by the diploma obtained by graduation in some reputable school of medicine, or by a certificate obtained upon examination before a State board appointed for the purpose. Pharma- cists and dentists are subjected to regulations somewhat similar in their character and object.
The revenue laws of the State have always been defective ; but not less so in their modes of execution than in their substance. These laws have been made the subject of almost uniform complaint by our governors in their messages. For the last few years, they have not raised money suf- ficient to meet the current expenses of the State. The sinking fund has repeatedly been drawn upon to supply the deficiencies in this respect. The revenue law, as shown by the statutes of 1873. gives ample evidence of the growth of Kentucky for the last thirty years under review in mineral and agricultural products.
744
HISTORY OF KENTUCKY.
The condition of married women under the statutes of Kentucky is much ameliorated, as compared with their status at the common law. Able reports upon the injustice of some portions of the common law to this class of our citizens have produced these changes. The femme sole act, recently become a part of our law, enables a married woman, under proper restrictions, to become a femme sole, and vests her with all rights of making wills, deeds, and contracts incidental to the unmarried condition of life. At the same time, an act of justice has been done to the husband by relieving him of all responsibility for the ante-nuptial contracts of the wife where he gets nothing from the marriage.
A strong desire to provide for insolvent debtors and their families, under proper restrictions and conditions, is manifested by the law of 1866, giving the debtor a homestead exemption, in real estate, to the amount of one thousand dollars. This landed exemption, supported as it is by laws pro- viding exemptions of personal property, with late amendatory additions of a liberal kind, gives about all that could be asked for this class of our citizens.
The body of law as developed by the decisions of our Appellate and Su- perior Courts during the period now under treatment will compare favorably with that of our sister States. Many of these rulings have been of general interest to the country at large. They have been reported in all the standard legal journals of the country.
These laws of the different periods, as thus passed under review, have been developed under three different State constitutions. Two of these have long outlived the average of the American State constitution. The first con- stitution of 1792 was largely pervaded by a spirit of distrust of the people. imbibed from the English law. The election of the governor and Senate was taken from the people and transferred to electors chosen by them. The right of suffrage as given by this Constitution was not made to depend on the possession of a freehold estate in land. This feature was a great step in ad- vance of the Constitution of the parent State of Virginia.
Popular dissatisfaction with the provisions of the first constitution in re- gard to the mode of electing the governor and the Senate led to the forma- tion of the second constitution in 1799. This instrument went into operation in 1800 and remained in force fifty years, until 1850. It is said to be mainly the work of John Breckinridge.
The debates upon this second constitution have, unfortunately, not been preserved. It is known that a fiery discussion arose in the convention on the question of making the Appellate Court independent of the Legislature. Some of the delegates were in favor of that court being under the control of the legislative body, as were the other courts of the Commonwealth. It was mainly through the instrumentality of Judge Caleb Wallace that it was made independent of legislative control. This constitution puts no property qual- ification upon the right of suffrage. The judges were appointed by the gov- ernor and held office during good behavior. This policy of appointment
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SKETCH OF GEORGE D. PRENTICE.
during good behavior may seem plausible, to be the better mode of securing purity and stability in the judiciary arm of our government, to the minds of many ; yet there have been, and are. very able men who have as plausibly asserted and argued the advantages of an elective judiciary as provided in the succeeding constitution of 1850. The ablest presentation of the facts and arguments in favor of the latter resort may be found in a memorable speech of Ben Hardin on an occasion of historic interest.
The third constitution, which took effect in 1850, removed all barriers on the direct exercise of popular sovereignty, and makes even the judges all elective by the people. Some of its distinctive features are the prohibi- tion of legislative aid to internal improvements. The public credit is sustained by rendering inviolable the revenues of the sinking fund, and re- quiring the faithful application of the fund to the payment of the public debt. The promotion and diffusion of knowledge is secured by the dedica- tion of the school fund to a system of public instruction in elementary schools. The personal, civil, and political rights of the citizen are declared and secured by an appropriate bill of rights, and by guarded limitations upon power. The instrument is the product of concession and compromise, and has secured for Kentucky the objects of a good constitution-the safety of life, liberty, and property.
Editors of Kentucky .- George Denison Prentice, Kentucky's most famous journalist, wit, and poet, was born at Preston, Connecticut, December 18, 1802; received a good classical education, and showed in early years that precocity which presaged his brilliant career as a writer. He studied law ; but entered journalism in Connecticut in 1825, and was associated with the poet Whittier, in 1828-30, in publishing the New England Weekly Review. He came to Kentucky in 1828, to write a campaign life of Henry Clay, and soon after located in Louisville and established the Journal, which he edited thirty-eight years. He made this paper one of the most renowned in the land. It made and unmade poets, poetesses, essayists, journal- ists, and politicians, who appeared in the West, for over the third of a century. At the breaking out of the civil war. Mr. Prentice threw the whole weight of his powerful organ against the cause of secession, and for the preservation of the Union. In 1835, he was married to Miss Henrietta Benham, by whom he had two sons, William Courtland, who was killed in battle at Augusta, Ken-
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