Kentucky Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

An English legal system, received through Virginia

Kentucky's law is English common law, and it arrived by way of Virginia. The country west of the mountains was Virginia's Kentucky County from 1776, and settlers there lived under Virginia statutes.

Separation kept that law in place. Virginia's act of separation preserved private rights and interests in land derived from Virginia law, to be determined by Virginia's existing law¹, and the constitution carried the general body of Virginia law forward: everything in force in Virginia on 1 June 1792 that was general in nature remained law in Kentucky until the General Assembly changed it².

For research this means three things. Anything before 1 June 1792 is Virginia law. Between 1792 and 1852 the governing rule on any point is either a Kentucky act of those years or, where the General Assembly had not acted, the Virginia law received in 1792; this guide cites the Revised Statutes of 1852 for the settled form of most rules, and the earlier form of each should be read in Littell's compilation and in the digests that preceded the Revised Statutes. And where no Kentucky statute had been passed on a point, the common law governed to the end of this period³ — sometimes for a very long time. As late as 1918 the Court of Appeals held that whether a person was a "mulatto" was still governed by the Virginia act of 1785, under which someone with less than one-fourth Negro ancestry was not one⁴.

A common law rewritten by statute

Four constitutions frame the period: 1792, 1799, 1850, and 1891⁵. A handful of statutory dates matter more, because each one changes what you will find:

• 1846 — a wife's land and slaves put beyond her husband's creditors.
• 1852 — the Revised Statutes take effect, the essential antebellum text.
• 1866 — the Reconstruction session: marriages of formerly enslaved couples recorded, enslaved people off the tax books, Black men onto a separate one.
• 1872 — the bar on Black testimony against white parties repealed, and parties themselves allowed to testify.
• 1893–94 — married women given their own property, and the privy examination abolished.
• 1906–10 — juvenile courts created, moving children's cases into closed files.

Probate, guardianship, marriage licensing, apprenticeship, and the tax lists were all county business, so a Kentucky search begins with the county court and the county clerk.

Legal Age of Adulthood

Majority at twenty-one

Full legal age was 21, for women and men alike, throughout this period. The rule came from the common law received from Virginia, and no Kentucky statute altered it before 1950⁶. A person under 21 was an "infant" in legal language, whatever their apparent maturity.

A minor's legal capacity

A minor could own property outright. What the law restrained was the power to give it away.

A deed or land contract made by a minor was voidable — it stood unless the former infant acted to undo it within a reasonable time after turning 21. Accepting the purchase money after coming of age ratified the sale, and the ratification related back to the original date⁷.

The consequence for research is that a minor's land was ordinarily sold through a court proceeding rather than by the child's own deed, which leaves a petition, an order, and a bond in the county records where a single instrument would otherwise sit in the deed book.

Marriage

What a valid marriage required

A valid Kentucky marriage required a license and a ceremony before an authorized officiant. A marriage not solemnized in the presence of an authorized person or society was void⁸. A couple who lived together as husband and wife without that ceremony remained single in law, and left no marriage record behind.

The license issued from the clerk of the county where the woman usually resided — a rule laid down in 1798 and kept thereafter⁹ — unless she was of full age or a widow, in which case it could issue on her own application¹⁰. Look for the license in the bride's county. Before it issued, the clerk took a marriage bond, in which a surety — a second person who pledged money that no legal impediment stood in the way — joined the groom; the surety is commonly the bride's father, brother, or uncle.

The officiant then returned his certificate to the county clerk, who entered it in a book kept for the purpose¹¹. From 1852 the return had to be made within three months and to name the persons present, never fewer than two¹², so a return of that date carries witness names as well as the couple's.

Three routes led to an authorized ceremony. An ordained minister qualified before the county court, produced his credentials of ordination, took the oath, and gave bond before he could officiate¹³. From 1799 the county court could license a county judge or a justice of the peace to solemnize marriages in counties short of ministers¹⁴, so a magistrate marriage is regular rather than irregular. A religious society having no officiating minister could marry its members at its usual place of worship, the route provided for Quakers and Mennonites from 1798¹⁵, and that marriage is entered in the meeting's own record rather than the county book.

One further rule matters for couples who married elsewhere. A Kentucky resident who went to another state to escape the provisions declaring marriages void, and came home, was treated as married in Kentucky — except as to the mode of solemnization¹⁶. So a Kentucky couple who contracted a common-law marriage in a state that allowed it came home married, and the courts said so repeatedly¹⁷.

Who was old enough to marry

Two age lines ran at once, and they did different work.

So a fifteen-year-old boy's marriage was good unless someone petitioned a chancery court — a court of equity, which handled matters the ordinary courts could not undo — and it became unassailable once the couple lived together after he turned 16. In practice an ancestor's underage marriage stood. By the 1930s the void line had risen to 16 for a male and 14 for a female²⁰.

Parental consent to twenty-one

Consent was required whenever either party was under 21 and had never before been married. The rule dates from the marriage act of 1798, which required the consent of the father or guardian, certified under hand and seal and attested by two witnesses²¹; an amending act of 1799 broadened it to the parent or guardian — the word that lets a mother consent — and required proof on the oath of a credible witness²². By 1852 the statute had settled into the form it kept, adding the mother expressly where there was no father or he was out of the state²³.

The consent paper is the record. It names a parent or guardian, states the relationship, brackets the young person's age below 21, and carries two more witness names. A widow or widower under 21 needed no consent, so its absence is itself informative.

The marriage itself stood. An infant's marriage was not invalid for want of consent alone²⁴, and no action lay for a parent whose child married without it²⁵. A runaway teenage marriage is a real marriage and its children are legitimate.

Marriages the law forbade

Marriage was prohibited and void with an idiot or lunatic, where an undivorced husband or wife was living, and between a white person and a negro or mulatto, bond or free²⁶. Marriage within the prohibited degrees was incestuous and void, and the prohibition survived the death or divorce that created the relationship²⁷.

The children were usually protected even when the marriage was not. The issue of an illegal or void marriage were nevertheless legitimate — except the issue of an incestuous marriage found such by a court in the parties' lifetime, and except the issue of a marriage between a white person and a negro or mulatto²⁸. Where a couple married in good faith believing a former spouse dead, children born before they learned otherwise were legitimate²⁹.

Enslaved people and people of color

Enslaved people had no capacity to make the civil contract of marriage, so no license or return exists for a marriage formed in slavery, however long and publicly the couple lived as husband and wife.

An act approved 14 February 1866 produced the single most important marriage record for African American research in Kentucky. Black Kentuckians could marry under the same regulations as white persons, with the county clerk keeping separate records, and any minister of a recognized church of colored persons could officiate³⁰.

The second section reached backward. Black couples already living together as husband and wife were held lawfully married and their children legitimate, provided they appeared before the clerk of the county court where they lived and declared that they had been and wished to continue living together. The clerk recorded the declaration for fifty cents and issued a certificate for twenty-five more, and the record or certificate was evidence of the marriage and of the children's legitimacy³¹.

Two details govern the search. The act set no deadline, so declarations continued to be filed for decades — the last in Scott County as late as 1907. And a closing proviso legitimated the children of customary marriages among enslaved people outright³², so the children of a couple who never reached the clerk's office were legitimate all the same.

The resulting series is variously titled Declaration of Marriage, Colored Marriages, or Declarations of Freedmen, and sits apart from the white marriage books. The declaration commonly states how long the couple had been together, which carries a relationship back years or decades before the Civil War.

The bar on marriage across the color line was older than the penalty attached to it: the marriage was already void under the Revised Statutes, and its children denied legitimacy³³. The 1866 act added the felony, punishable by not less than five years, and defined those within it as people of pure Negro blood and those descended from a Negro to the third generation³⁴. The legitimating rule outlived the act and runs through the codes as the slave-marriage section of the descent chapter, which stood until 1966³⁵.

Property Ownership

Which men could own land

The right to acquire, hold, and convey land belonged to every free man, and a man could own land at any age. The age that mattered was 21, when he could deal in it himself. Enslaved men owned nothing in law.

Alienage was no bar: in making title by descent it was no obstacle that an ancestor was or had been an alien³⁶.

Which women could own land

Everything turned on whether she was married. A single or widowed woman — a feme sole, "woman alone" — could acquire, hold, sell, and mortgage land on the same footing as a man. A married woman was a feme covert, "covered woman," under coverture, the common-law rule that merged a wife's legal identity into her husband's. She could own land, but her power to manage and convey it was limited during the marriage and broadened in stages.

The stages ran as follows:

Single women and widows

A single woman or widow could buy, own, sell, mortgage, sue, and be sued exactly as a man could. A woman transacting freely in the deed books is almost always unmarried or widowed.

Married women, and the act of 1846

Kentucky cut coverture back early. From 1846, marriage gave the husband no estate in his wife's real estate, her chattels real (leases and other interests in land held for a term of years), or slaves — only the use of them, with power to rent for not more than three years at a time — and her land and its rents were not liable for his debts³⁷.

That insulation is visible in the records: where a husband's estate is sold up for debt and one tract is untouched, look for the deed or will that brought that tract to the wife.

The Weissinger Act of 1894

The married women's property act approved 15 March 1894 gave a wife her own estate, held to her separate and exclusive use, free of her husband's debts and control³⁸. She could sue and be sued as a single woman³⁹.

One requirement survived: her husband still had to join in the deed⁴⁰, and a deed of a married woman in which he did not join passed no title⁴¹.

The act's date divides the records rather than switching them. For marriages contracted before it, the older law continued to fix the spouses' rights in property acquired before the act⁴². The couple's marriage date decides which rules govern an estate, so a widow dying in the 1920s who married in 1880 is still under the old law.

The feme sole decree

Long before 1894 a wife could be released from coverture one case at a time, by court order, and the file is one of the most informative records a married woman leaves.

On the joint petition of husband and wife in a chancery court in their county, the judge could empower her to sell and convey her property free of her husband's debts, to contract and sue as a feme sole, to trade in her own name, or to dispose of her property by will or deed⁴³. Notice had to be published ten days and any creditor of the husband could contest it⁴⁴.

Look among the equity files, not the deed books. A wife conveying land in her own name before 1894 usually has such a decree behind her, and the petition states why — very often a husband's debts, absence, or incapacity.

How a married woman's land was conveyed

A married woman could convey any estate she owned⁴⁵, by joint deed with her husband or by separate instrument after he had conveyed⁴⁶.

What made it effectual was the acknowledgment. Before taking it, the officer had to explain the deed to her separately and apart from her husband, and his certificate was itself evidence that he had done so⁴⁷. That is the privy examination.

The separate examination ended with the revision of 1893⁴⁸. A Kentucky deed carrying a wife's privy examination is therefore evidence of a date before 1894, and its disappearance from a county's deed books marks the changeover.

When a wife had to sign her husband's deed

This is the most useful dating tool in Kentucky land research, and the answer is steady rather than shifting: a Kentucky wife had to join in her husband's deed.

The reason is the reach of dower — the widow's life estate. She held for her lifetime one-third of the real estate of which her husband was seized in fee — that is, held as owner — at any time during the marriage⁴⁹. Because the right reached land held at any time during the marriage, not merely what he owned at death, a buyer could not get clear title from the husband alone.

Two records come out of this. Between his death and the setting off of her dower she held the dwelling house and the yard and outbuildings around it without charge⁵⁰ — a widow still living in the homeplace years after her husband's death is usually exercising that right, not owning the house. And where a husband settled a jointure on his wife in place of dower — an estate secured to her by agreement, to support her after his death — she could refuse it within twelve months of his death by a written relinquishment left with the county clerk⁵¹, which is a dated, findable document.

The mirror-image right in the wife's land was curtesy: where issue of the marriage was born alive, the husband took a life estate in all the real estate she owned at her death⁵².

Which children could own land

A child could own land at any age, taking it by inheritance, by gift, or by devise — a gift of land made in a will. Conveying it was the constraint, and a minor's land was sold through a court proceeding rather than by the child's own deed. Own at any age; convey freely at 21.

Witnessing a deed

A witness of any age could serve. Competency, not age, was the test, and the statute set no figure — provided the witness understood an oath and could relate what he had seen.

A deed reached the record book on the grantor's own acknowledgment before the clerk, or on the proof of two subscribing witnesses, or of one who also proved the other's attestation⁵³. Because a witness might have to appear years later to prove the deed, witnesses in practice were adults, and usually kin or neighbors of the grantor.

Enslaved people and free people of color

Enslaved people had no capacity to own property; anything in their possession belonged in law to the enslaver. Kentucky's law on slavery, emancipation, and free people of color is gathered in the Revised Statutes of 1852 at chapter 93, rewritten wholesale in 1866⁵⁴.

Free people of color could hold and convey property before the Civil War and appear in the deed books; the restrictions fell on the freedoms around ownership rather than on the right itself. An act of 14 February 1866 then settled it by statute: all Black Kentuckians could sue and be sued in every court, and could acquire and dispose of property to the same extent as white persons⁵⁵. From 1866 forward, deeds, mortgages, and estate records for Black families exist on the same footing as anyone else's.

Inheritance

Land: the order of descent

Land descended to all of an intestate's children together rather than to the eldest son alone, and it did so from the beginning: the act of 1796 laid down the order that the Revised Statutes later restated almost word for word. Someone who died intestate died without a valid will. The children took as parceners, meaning they held the land jointly until it was divided among them, and daughters shared with sons⁵⁶. The order of descent ran as follows:

Note where the spouse sits. A widow took the land outright only when the whole ladder of blood kindred had failed; while any blood relative survived, however remote, her interest in her husband's land was dower rather than inheritance.

Descendants of an heir who had died first took per stirpes, by representation — that is, they divided among them the share their parent would have taken⁵⁷. Collaterals of the half-blood inherited only half as much as those of the whole blood⁵⁸ — a distinction that changes the arithmetic of any estate division involving a second marriage.

Personal property: the widow's and husband's shares

The surplus of the personal estate — what remained after funeral expenses, administration, and debts — passed as the land did, with two exceptions⁵⁹ that govern most estates:

A widower took the whole; a widow took a third.

On top of that share, and exclusive of her dower, the appraisers set apart to the widow a fixed list of household and farm goods for herself and the infant children living in the family — a work beast, a plough, two cows and calves, beds and bedding, a loom, the family's cloth, cooking vessels, a table, the family bible, a saddle, six chairs, the poultry, five head of sheep, wearing apparel, and a year's provisions⁶⁰. That appraisers' list is a room-by-room inventory of a household, and it names the widow and the children living with her.

By the twentieth century the list had become a cash figure — $1,500 to the widow and minor children free of the estate's debts⁶¹ — and the widow's personalty share had become one-half absolutely⁶².

Minors, guardians, and the age of fourteen

The county court appointed guardians, took their bonds, and settled their accounts; where a father had appointed a guardian by will, jurisdiction lay in the court where the will was proved⁶³. No guardian could act until appointed and bonded⁶⁴.

Any father could appoint a guardian by will — and could give the guardianship of the child's estate to one person and the custody and education of the child to another⁶⁵, so look for two records rather than one. In appointing, the court followed a fixed order: the father or his testamentary appointee; then the mother, if unmarried; then the next of kin, preferring males⁶⁶. A mother who had remarried was passed over, which is why a stepfather so rarely appears as guardian.

At fourteen a minor could nominate his own guardian, in the court's presence or in writing before a judge, after a private examination⁶⁷. A guardianship record in which the child chooses is therefore evidence the child had reached 14, which brackets a birth year.

Guardianship ended at 21 — with one exception that matters constantly: the marriage of a female ward discharged the guardianship at once, and entitled her to demand a settlement⁶⁸. A guardian's final settlement for a female ward may therefore date her marriage rather than her twenty-first birthday, and it often gives her married surname.

A guardian was appointed chiefly because a child owned property, so where a child inherited nothing there is often no guardianship record. And a guardian for a child whose father is living means the child inherited from elsewhere — a grandparent, an uncle, the mother's family. The guardianship is a signpost to another estate.

Apprenticeship and the binding out of children

The county court bound out poor orphans and other children whose parents it judged would not raise them in moral courses, and could bind out the children of a man sent to the penitentiary⁶⁹. An orphan could also be bound by his guardian, or by his mother where there was none, with the court's consent entered of record⁷⁰.

The term ran until 21 for a boy and 18 for a girl⁷¹.

The indenture is the record, and it is a dated document with an age in it. Signed by the master and by the clerk of the county court, it had to specify the age of the minor and the trade to be taught⁷².

The 1866 session added two things. The master owed a payment at the end of the term — $50 to a girl, $100 to a boy — unless he had taught the child to read and write⁷³, a rule that became general regardless of race and stood in the code to the end of this period⁷⁴. And, most significant for African American research, in apprenticing a Black child the court was to give preference to the child's former owner⁷⁵. An indenture from the later 1860s therefore often names the family that had enslaved the child — a documentary link across emancipation that exists almost nowhere else.

Children born outside marriage

Such a child could inherit from and transmit an inheritance to the mother, and children of the same mother could inherit from one another as if born in lawful wedlock⁷⁶.

Legitimation ran through the parents' marriage. Where a man who had a child by a woman afterwards married her, the child was legitimate — if recognized by him before or after the marriage⁷⁷. Recognition by the father was required as well as the marriage, so evidence of his acknowledgment may be what a claim turned on.

Where paternity was contested it went forward as a bastardy proceeding against the reputed father, in which the mother was a competent witness⁷⁸. The examination, the bond, and the order name both parents, which makes the bastardy file one of the few records that puts an unmarried father's name on paper.

Wills, executors, and witnesses

Two ages governed, and which one applied depended on what was being given away. Land could be devised by a person of 21 or over. Chattels — personal property, meaning everything that was not land — could be disposed of by will at 18. That split came in with the wills act of 1796 and held until the Revised Statutes of 1852 raised the age for personal property to 21 as well, so a will of goods made by a nineteen-year-old is regular before 1852 and irregular after it⁷⁹. Two further exceptions ran alongside both ages. A person under 21 could make a will in exercise of a power specially given for that purpose, and a parent under 21 — mother or father — could appoint a guardian for their child by will⁸⁰.

Until the acts of the 1890s, a married woman could will only her separate estate — property secured to her separate use by deed or devise⁸¹. A married woman's will in a Kentucky order book before then should send you looking for the settlement that created her separate estate.

A will was revoked by the testator's marriage, man or woman alike⁸² — so a will made before a late-life marriage is void and the estate goes by descent.

A will witness qualified on credibility, not age. A will not wholly written by the testator had to be acknowledged before at least two credible witnesses who subscribed it in his presence⁸³. A will written out entirely in the testator's own hand — a holographic will — stood on its own without witnesses, and holographic wills are common in the Kentucky record.

The age to serve as executor was 21. Where all the named executors were under 21 when the will was recorded, administration with the will annexed was granted during the minority — unless the will directed otherwise, in which case the infant executor could qualify and give bond⁸⁴. A change of personal representative some years after probate often marks the moment a named executor came of age.

Taxation

What was taxed

Kentucky's annual county lists are the richest routine source the state produced. They were taken every year, they name people who owned almost nothing, and they survive from the beginning of settlement, functioning as a census substitute between the federal censuses.

Two levies fell on individuals: the poll — a flat charge on a person rather than on property, called a capitation tax under its Latin name, the taxable person being the "poll" or "tithable" — and the property tax on land and, before 1865, on enslaved people. For genealogy the poll is the prize, because it reaches people who owned nothing at all.

The tithable list

The first Kentucky statute on the subject, passed in 1797, made every male person of sixteen years and upwards tithable, along with every female slave of sixteen and upwards, and chargeable for defraying the county levies⁸⁵. A free boy therefore entered the county levy list at 16, five years before he came of age, and his first appearance brackets his sixteenth birthday.

By the time of the Revised Statutes the age for free males had risen to 21, while enslaved people remained tithable from 16⁸⁵. The year of that change has not been traced for this guide; it falls somewhere in the revenue and county levy acts between 1797 and 1852, and a list that shows sixteen-year-olds is evidence you are working before it.

The mechanics produced the document. The assessor demanded from each tithable person a written list of the tithables in his family, including the slaves he owned, as they stood on 10 January preceding, and returned it to the county court with his assessment⁸⁶. So the household list is a dated snapshot, and the reference date is 10 January.

The county court could exempt a person from the levy on account of age, infirmity, or other charitable reasons⁸⁷. That is the ordinary explanation for a man vanishing from the list while still alive and resident — read the county court order book before concluding he died or moved.

1866: the lists change shape

The Reconstruction session redrew the tax lists along the color line, and the change is abrupt enough to date a document.

The provisions that made enslaved people taxable were repealed outright⁸⁸. After the 1866 session, enslaved people vanish from the tax books as property.

What replaced it is a finding aid in its own right. An additional poll tax of two dollars was levied on every Black male over the age of eighteen, over and above the tax the general law already imposed, and all taxes collected from Black Kentuckians were set apart as a separate fund, half to the support of their paupers and the remainder to the education of their children; the commissioner of taxes in each county kept a separate book, or a separate column in his book, in which the names of all Black males over eighteen were recorded⁸⁹. From 1866, then, Black men appear by name in a distinct, age-bounded list — and a man's first appearance brackets his eighteenth birthday, three years earlier than the white list would.

Taxable ages at a glance

Courts

Jury service

A juror had to be a free white male citizen, at least 21, and a housekeeper of the county — and, the statute added, sober, temperate, discreet, and of good demeanor⁹⁰. A grand juror had to meet the same age and housekeeping test⁹¹.

The point to fix is that Kentucky's test was housekeeping, not freehold. A juror needed a household of his own in the county but did not need to own land. Jury service is therefore evidence of residence and independent householding rather than of landholding — and because the commissioners drew names from the last returned assessor's book⁹², a juror should also appear on that year's tax list.

Criminal responsibility

Before the juvenile court the common-law ages governed: under 7 a child was incapable of crime; from 7 to 14 incapacity was presumed and the Commonwealth had to rebut it; from 14 the child bore full responsibility.

Punishments were not equal across the color line until Reconstruction. An act of 15 February 1866 made all persons subject to the same penalties for felonies and misdemeanors regardless of color⁹³. Before that act a Black defendant was tried under the separate provisions of the slave and free-negro chapter, and those cases sit in a different part of the county record.

Kentucky created a juvenile jurisdiction in 1906 and rebuilt it twice in four years, the version of 1910 being the one compiled in the code for the rest of this period⁹⁴. The act reached male children of seventeen or under and female children of eighteen or under⁹⁵. So a sixteen-year-old boy's offense after 1908 belongs in the juvenile record, not the criminal docket — and those files are typically closed.

Two other provisions relocate children in the records. The infant children of a convict were, during his confinement, regarded as orphans, and could have guardians appointed and be bound apprentices⁹⁶ — so an "orphan" guardianship does not always mean the father was dead. And a child committed to Louisville's House of Refuge was held there to 21 if a boy and to 18 if a girl⁹⁷.

Witnesses

A witness of any age could testify, if he or she understood the obligation of an oath and could relate what happened. The trial judge examined a child before allowing testimony; the question was weight rather than competency.

What governed instead was interest. A person with a financial stake in the outcome — including the parties themselves — was barred at common law, which is why an early Kentucky lawsuit file is full of depositions from neighbors and silent from the two people actually arguing. The act of 30 January 1872 ended that: interest went to credibility instead of barring the testimony⁹⁸. From 1872 the parties themselves speak in the record.

Women as witnesses and jurors

Women were competent witnesses throughout the period. What reached a married woman's testimony was not her sex but the rules on interest and on spouses: the 1872 act kept husband and wife incompetent for or against each other, and as to communications made during the marriage, with a proviso that in an action where the wife would be a party if she were a feme sole, either she or her husband might testify, but not both⁹⁹.

Women became eligible for jury service in 1920. The qualification ran through citizenship and the vote rather than through sex, so Kentucky's ratification of the Nineteenth Amendment on 6 January 1920 carried jury service with it, and the Attorney General advised that women were qualified and entitled to serve. Kentucky was one of a small group of states where eligibility followed from the vote itself rather than from a later enactment. Women were in the jury wheel and on petit juries by 1921, and the Court of Appeals twice let the question pass without deciding it, holding that a trial court's ruling on the panel is final and beyond review¹⁰⁰. For a researcher the practical point is that a woman may appear on a jury list from 1920 onward.

The statute had changed shape to match: by 1930 the commissioners selected from the intelligent, sober, discreet and impartial citizens, resident housekeepers of the county, over twenty-one — a formula naming neither sex nor race⁹².

Eligibility was not the same as service. By the law in force in 1948 women were eligible on the same terms as men but were declared exempt as a group, so a woman served only if she waived the exemption¹⁰¹. That is why women appear so sparsely on Kentucky jury lists for decades after 1920.

People of color as witnesses and jurors

Until 1872 a Black Kentuckian could testify only in the proceedings the statutes opened to them, and the dates decide whether to expect Black voices in a case file at all.

The 1866 session opened the door only partway. An act of 14 February 1866 made Black Kentuckians competent witnesses in civil proceedings where Black people were the only parties interested, and in criminal proceedings where a Black person was the defendant¹⁰². The same act let a Black Kentuckian charge a criminal offense by affidavit¹⁰³.

Testimony where a white person was a party in a civil case, or the defendant in a criminal one, remained closed. That produced the leading case. The Foster family of Lewis County was murdered in August 1868 by two white men; the victims were Black and the defendants white, so the witnesses were incompetent in the state court. The prosecution went to federal court, and in April 1872 the Supreme Court held that the federal courts could not take a state murder prosecution merely because Black witnesses had been excluded¹⁰⁴.

By then the legislature had already acted. The evidence act of 30 January 1872 closed the question in one sentence: no one was to be incompetent as a witness because of his or her race or color¹⁰⁵. Blyew and Kennard were re-indicted in the state court, where the witnesses could at last be heard.

For research the three phases are what matter:

Before 1872, look for Black names in the bonds, recognizances, and county court order book rather than in the testimony.

(Guide compiled by Jeniann Nielsen with AI assistance from Claude Opus 4.8 and Gemini Pro 3.1. Check primary sources as needed.)

Sources & Where to Verify

Every rule above is tagged with the law it rests on. The lists below show where to read those laws in full, and the reference works consulted, so anything here can be checked against the original sources.

Constitutions

• Compact with Virginia (Virginia act of separation, 18 December 1789), § 7. Printed in the front matter of The Revised Statutes of Kentucky, 1852, pp. 23–26. Digital image. Kentucky Secretary of State. https://www.sos.ky.gov/land/resources/legislation/Documents/Compact%20with%20Virginia.pdf
• Kentucky Constitution of 1799, art. VI, § 8, and Constitution of 1792, art. VIII, § 6 (reception of the general laws of Virginia in force 1 June 1792). The 1799 text is printed in The Revised Statutes of Kentucky, 1852, p. 38.
• Kentucky constitutions of 1792, 1799, 1850, and 1891. Scans of all four. Chase College of Law Library, Northern Kentucky University. https://chaselaw-nku.libguides.com/c.php?g=762220&p=5465611

Codes and Compilations

• Carroll, John D., comp. Carroll's Kentucky Statutes Annotated: Containing All Laws of a General Nature in Force to January 1, 1930, and the Constitution Annotated. Official ed. Louisville: The Baldwin Law Book Co., 1930. The code in force in the last decades covered here; each section carries a derivation note in parentheses, which is how the session-law chapters cited above were fixed. Sections used: § 506, § 2097, § 2106, § 2127, § 2129, § 2241, §§ 2591–2596, §§ 331e-1 and following.
• Civil and Criminal Codes of Practice of Kentucky. Prepared by Richard A. Buckner and Joshua F. Bullitt, commissioners, and Alvin Duvall, umpire; revised and adopted by the General Assembly. Frankfort, Ky.: Printed at the Kentucky Yeoman Office, Major, Johnston & Barrett, 1876. Civil Code § 34 (coverture) and § 605 (competency of witnesses). Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=mdp.35112105479846
• The General Statutes of the Commonwealth of Kentucky. Frankfort, Ky.: S.I.M. Major, Public Printers, 1873. Digital images. Internet Archive. https://archive.org/details/generalstatutes00johngoog
• Hening, William Waller, comp. The Statutes at Large; Being a Collection of All the Laws of Virginia. Vol. 12. Richmond: Printed by and for Samuel Pleasants, junior, printer to the commonwealth. Digital images. Internet Archive. https://archive.org/details/statutesatlargeb12virg
• Kentucky Revised Statutes. Adopted 1942. Each section printed with its derivation line. Kentucky General Assembly. https://apps.legislature.ky.gov/law/statutes/
• Littell, William, comp. The Statute Law of Kentucky; with Notes, Prælections, and Observations on the Public Acts. 5 vols. Frankfort, Ken.: Printed by and for William Hunter, 1809–1819. The imprint varies: vol. 1, printed by and for William Hunter, 1809; vols. 2–3, printed for William Hunter by Johnston & Pleasants, 1810–1811; vol. 4, printed for William Hunter by Robert Johnston, 1814; vol. 5, printed for Butler & Wood, 1819. Vol. 1 carries the descent act of 1796, ch. 275, the wills act of 1796, ch. 293, and the acts of 1797 on guardians (ch. 311) and tithables (ch. 313); vol. 2 carries the marriage act of 1798, ch. 41, and its amendment of 1799, ch. 186. Digital images. Internet Archive. Vol. 1, https://archive.org/details/LittellsStatutesVol1; vol. 2, https://archive.org/details/LittellsStatutesVol2. Catalog record for the set. HathiTrust. https://catalog.hathitrust.org/Record/008602767
• Myers, Harvey. A Digest of the General Laws of Kentucky, Enacted by the Legislature, Between the Fourth Day of December, 1859, and the Fourth Day of June, 1865 … With an Appendix Containing the Laws of the Winter Session, 1865–'66. Cincinnati: Robert Clarke & Co., 1866. Cited by the Court of Appeals as Myers' Supplement; the appendix is where the acts of the 1865–66 session are most easily read. Digital images. HathiTrust. https://hdl.handle.net/2027/mdp.35112105058111
• The Revised Statutes of Kentucky. Frankfort, Ky.: A.G. Hodges, state printer, 1852. In force from 1 July 1852; the essential antebellum volume and the source of most of the citations above. Chapters used: ch. 6 (Bastardy, p. 141); ch. 24 (Conveyances, p. 196); ch. 26 (County Levy, p. 208); ch. 30 (Descent and Distribution, p. 279); ch. 37 (Executors and Administrators, p. 331); ch. 43 (Guardian and Ward, p. 372); ch. 47 (Husband and Wife, p. 383); ch. 55 (Juries, Grand and Petit, p. 426); ch. 64 (Master and Apprentice, p. 466); ch. 74 (Penitentiary, p. 523); ch. 83 (Revenue and Taxation, p. 549); ch. 93 (Slaves, Runaways, Free Negroes, and Emancipation); ch. 106 (Wills, p. 693). Digital images. Internet Archive. https://archive.org/details/revisedstatuteso00kent
• Stanton, Richard H., ed. The Revised Statutes of Kentucky, Approved and Adopted by the General Assembly, 1851 and 1852, and in Force from July 1, 1852; with All Amendments Subsequently Enacted, and Notes of the Decisions of the Court of Appeals of Kentucky. And an Appendix, Containing All the Enactments of the Legislature Passed During the Session of 1859 and 1860. 2 vols. Cincinnati: R. Clarke & Co., 1860. The text the 1866 session laws amend. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=mdp.35112105058160

Session Laws

• Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Session of the General Assembly Which Was Begun and Held in the City of Frankfort, on Monday, the Fourth Day of December, 1865. Frankfort, Ky.: Printed at the State Printing Office, George D. Prentice, State Printer, 1866. The Reconstruction session. Chapters used: ch. 247 (House of Refuge, approved 27 January 1866); ch. 555 (wife empowered as a feme sole, 14 February 1866); ch. 556 (marriage of negroes and mulattoes, 14 February 1866); ch. 563 (civil rights, including competency as witnesses, 14 February 1866); ch. 595 (equal punishment, 15 February 1866); ch. 603 (repeal of the slave code, including the tithable and tax-listing provisions); ch. 621 (master and apprentice, 16 February 1866); ch. 636 (taxation and the separate tax book, 16 February 1866).
• Acts of the Commonwealth of Kentucky, Passed by the General Assembly at the Adjourned Session (January 3, 1867) Which Was Begun and Held in the City of Frankfort, on Monday, the 4th Day of December, 1865. Vol. 1. Frankfort, Ky.: Printed at the Kentucky Yeoman Office, John H. Harney, Public Printer, 1867. Chapter used: ch. 1913, pp. 94–96 (taxation of negroes and mulattoes, approved 9 March 1867).
• Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session … Begun and Held on Wednesday, the Thirtieth Day of December, Eighteen Hundred and Ninety-one; and of the Called Session … and of the Adjourned Regular Session. Frankfort, Ky.: Capital Office, E. Polk Johnson, Public Printer and Binder, 1893. Chapters used: ch. 186, p. 829 (conveyances, approved 22 April 1893), and ch. 205, p. 925 (husband and wife, approved 16 May 1893).
• Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session of the General Assembly, Which Was Begun and Held in the City of Frankfort on Monday, the Fourth Day of December, 1871. Frankfort, Ky.: Printed at the Kentucky Yeoman Office, S.I.M. Major, Public Printer, 1872. Chapter used: ch. 139 (laws of evidence, approved 30 January 1872). Digital images. Internet Archive. https://archive.org/details/bub_gb_2lcyAAAAIAAJ
• Kentucky session laws of 1793 to 1851. Not traced act by act for this guide; the tithable, descent, wills, and guardianship rules in force before the Revised Statutes should be read here and in Littell.
• Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session of the General Assembly, Which Was Begun and Held on Tuesday, the Second Day of January, One Thousand Eight Hundred and Ninety-four. Frankfort, Ky.: Capital Printing Co., 1894. Chapter used: ch. 76, p. 176 (the Weissinger Act, husband and wife). Digital images. Internet Archive. https://archive.org/details/actsgeneralasse17kentgoog
• Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session of the General Assembly Which Was Begun and Held in the City of Frankfort, Kentucky, on Tuesday, January the Second, 1906. Louisville: Geo. G. Fetter Company, 1906. Chapters used: ch. 54, p. 302 (contributing to dependency, neglect, or delinquency), and ch. 64, pp. 322–32 (county courts over delinquent, neglected, and dependent children). Digital images. Internet Archive. https://archive.org/details/actsgeneralasse02kentgoog
• Acts of the Commonwealth of Kentucky, Passed by the General Assembly at the Adjourned Session (January 3, 1867) Which Was Begun and Held in the City of Frankfort, on Monday, the 4th Day of December, 1865. Vol. 2. Frankfort, Ky.: Printed at the Kentucky Yeoman Office, John H. Harney, Public Printer, 1867. The local and private acts of the 1865–67 General Assembly, chs. 1435–2123; chapter numbers ran in one sequence across the whole assembly, so the public acts of the 1865–66 regular session carry the lower numbers cited above.
• Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session … Begun and Held in the City of Frankfort, Kentucky, on Tuesday, January the Fourth, 1910, and Ended on Tuesday, March the Fifteenth, 1910. Louisville: The Continental Printing Company, 1910. Chapters used: ch. 76, p. 226 (contributing to dependency, neglect, or delinquency), and ch. 82, p. 249 (conveyances). Both approved 23 March 1910.
• Kentucky session laws of 1908. Chapters and pages cited above were taken from the derivation notes in Carroll's and have not been checked against the session volume: the juvenile acts at ch. 60, p. 152, and ch. 67, p. 181. Read each act in the session laws for 1908.

Court Cases

• Blyew v. United States. 80 U.S. (13 Wall.) 581 (1872). Digital image. University of Minnesota Law Library. https://librarycollections.law.umn.edu/racial-justice/blyewvus005.html
• Brown's Adm'r v. Brown. 308 Ky. 796, 215 S.W.2d 971 (1948).
• Boyd & Jones v. Commonwealth. 194 Ky. 73 (1922). Digital images. Caselaw Access Project. https://static.case.law/ky/194/html/0073-01.html
• Damron v. Ratliff. 123 Ky. 758, 97 S.W. 401, 30 Ky. L. Rptr. 67 (1906).
• Farmers Bank of Hardinsburg v. Richardson. 171 Ky. 340, 188 S.W. 406 (1916).
• Featherston v. Thompson. 10 Bush 140, 73 Ky. 140 (1873). Recites the chain of acts behind the two-dollar tax and the pauper fund. Digital images. Caselaw Access Project. https://static.case.law/ky/73/html/0140-01.html
• Gannon v. Alsbury. 1 A.K. Marsh. 76 (1817). Digital images. Caselaw Access Project. https://static.case.law/ky/8/html/0076-01.html
• Howard v. Asher. 219 Ky. 158, 292 S.W. 1089 (1927).
• Jones v. Tevis. 4 Litt. 25 (1823). Digital images. Caselaw Access Project. https://static.case.law/ky/14/html/0025-01.html
• Klenke v. Noonan. 118 Ky. 436, 81 S.W. 241 (1904).
• McLaughlin v. Commonwealth. 192 Ky. 206 (1921). Digital images. Caselaw Access Project. https://static.case.law/ky/192/html/0206-01.html
• Mason v. Williams. 165 Ky. 331, 176 S.W. 1171 (1915).
• McGoodwin v. Shelby. 182 Ky. 377, 206 S.W. 625 (1918).
• Mitchell v. Violett. 104 Ky. 77, 47 S.W. 195 (1898).
• Rose v. Rose. 104 Ky. 48, 46 S.W. 524, 20 Ky. L. Rptr. 417 (1898).
• Smith v. Rose. 224 Ky. 154 (1928). Digital images. Caselaw Access Project. https://static.case.law/ky/224/html/0154-01.html
• Simpson v. Smith. 142 Ky. 608, 134 S.W. 1166 (1911).

Secondary and Reference Works

• FamilySearch. "Kentucky Taxation." Which tax lists survive and how to read them. https://www.familysearch.org/en/wiki/Kentucky_Taxation
• Kentucky Genealogical Society. "Finding Marriages for Formerly Enslaved Persons." How the 1866 declarations were made and where the county series survive. https://kygs.org/marriage-enslaved-african-american-scott-county/
• Kentucky Historical Society. "Tax Lists (1792–1840): An Overlooked Resource for Kentucky History and Land Titles." https://history.ky.gov/kentucky-ancestors/tax-lists-1792-1840-an-overlooked-resource-for-kentucky-history-and-land-titles
• Kentucky Historical Society. "Tax Lists (1841–1860): An Overlooked Resource for Kentucky History and Land Titles." Kentucky Ancestors. https://kentuckyancestors.org/tax-lists-1841-1860-an-overlooked-resource-for-kentucky-history-and-land-titles/
• Lucas, Marion B. A History of Blacks in Kentucky: From Slavery to Segregation, 1760–1891. Kentucky Historical Society, 1992.
• Matthews, Burnita Shelton. "The Woman Juror." Women Lawyers' Journal 15, no. 2 (January 1927). Distinguishes the states where women became jury-eligible on gaining the vote, Kentucky among them, from those that required a specific enactment. Digital images. Women's Legal History, Stanford Law School. http://wlh.law.stanford.edu/wp-content/uploads/2011/01/the-woman-juror-15wlj151927.pdf
• Muyskens, Elizabeth S. "Married in Kentucky: A Surviving Spouse's Dower Right in Personalty." Kentucky Law Journal 96 (2007). https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1278&context=klj
• Post, Edward M. "Kentucky Law Concerning Emancipation or Freedom of Slaves." Filson Club History Quarterly. https://filsonhistorical.org/wp-content/uploads/publicationpdfs/59-3-4_Kentucky-Law-Concerning-Emancipation-or-Freedom-of-Slaves_Post-Edward-M.pdf
• U.S. Department of Labor, Women's Bureau. The Legal Status of Women in the United States of America: January 1, 1948, Report for Kentucky. Bulletin no. 157-16, rev. Washington: U.S. Government Printing Office, 1949. A digest of Kentucky law on majority, married women's property, dower, curtesy, wills, intestacy, guardianship, marriage, and jury service; law stated as of 1 January 1948. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-16-rev_dolwb_1949.pdf

Citations

1. Compact with Virginia (Virginia act of separation, 18 December 1789), § 7, printed in The Revised Statutes of Kentucky (Frankfort, Ky.: A.G. Hodges, state printer, 1852), pp. 23–26; digital images, Internet Archive (https://archive.org/details/revisedstatuteso00kent : accessed 26 July 2026). ↩
2. Ky. Const. of 1799, art. VI, § 8, printed in Revised Statutes of 1852, p. 38. The Constitution of 1792 carried the same reception at art. VIII, § 6. ↩
3. U.S. Department of Labor, Women's Bureau, The Legal Status of Women in the United States of America: January 1, 1948, Report for Kentucky, Bulletin no. 157-16, rev. (Washington: U.S. Government Printing Office, 1949), Introduction; digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/files/docs/publications/women/b0157-16-rev_dolwb_1949.pdf : accessed 26 July 2026). ↩
4. McGoodwin v. Shelby, 182 Ky. 377, 206 S.W. 625 (1918), applying the Virginia act of 1785; the act is printed at William Waller Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia, vol. 12 (Richmond: Printed by and for Samuel Pleasants, junior, printer to the commonwealth), p. 184; digital images, Internet Archive (https://archive.org/details/statutesatlargeb12virg : accessed 26 July 2026). ↩
5. Kentucky constitutions of 1792, 1799, 1850, and 1891; the texts of all four are collected in the Chase College of Law research guide cited in the Source List. ↩
6. Legal Status of Women in Kentucky, No. 1, giving twenty-one as the age of majority for both sexes; the rule rested on the common law, no Kentucky statute having fixed an age of majority within this period. ↩
7. Damron v. Ratliff, 123 Ky. 758, 97 S.W. 401, 30 Ky. L. Rptr. 67 (1906). ↩
8. Revised Statutes of 1852, ch. 47, art. 1, § 2, cl. 4, p. 384; the rule was carried into Kentucky Statutes § 2097 and stands as KRS 402.020(1)(c). ↩
9. Acts of 1798, ch. 41, § 8, "An act for regulating the Solemnization of Marriages," approved 3 February 1798, requiring the license to issue from the clerk of the county wherein the feme usually resides; printed in William Littell, The Statute Law of Kentucky, vol. 2 (Frankfort, Ken.: Printed for William Hunter, by Johnston & Pleasants, 1810), p. 67; digital images, Internet Archive (https://archive.org/details/LittellsStatutesVol2 : accessed 26 July 2026). ↩
10. Revised Statutes of 1852, ch. 47, art. 1, § 10, p. 385. ↩
11. Acts of 1798, ch. 41, §§ 6, 7, in Statute Law of Kentucky, vol. 2, pp. 66–67. ↩
12. Revised Statutes of 1852, ch. 47, art. 1, § 12, p. 386. ↩
13. Acts of 1798, ch. 41, § 2, in Statute Law of Kentucky, vol. 2, requiring credentials of ordination, the oath of allegiance, and bond with two or more sureties in five hundred pounds; carried forward at Revised Statutes of 1852, ch. 47, art. 1, § 9, p. 385. ↩
14. Acts of 1799, ch. 186, § 2, "An act to amend an act for regulating the solemnization of Marriages," approved 12 December 1799 and in force from the first day of 1800, in Statute Law of Kentucky, vol. 2, p. 275; carried forward at Revised Statutes of 1852, ch. 47, art. 1, § 8, cl. 2, p. 385. ↩
15. Acts of 1798, ch. 41, § 3, in Statute Law of Kentucky, vol. 2, providing for the people called Quakers, and Menonists, or any other Christian society that had adopted similar regulations; carried forward at Revised Statutes of 1852, ch. 47, art. 1, § 8, cl. 3, p. 385. ↩
16. Revised Statutes of 1852, ch. 47, art. 1, § 6, p. 385. ↩
17. Klenke v. Noonan, 118 Ky. 436, 81 S.W. 241 (1904); Howard v. Asher, 219 Ky. 158, 292 S.W. 1089 (1927); Brown's Adm'r v. Brown, 308 Ky. 796, 215 S.W.2d 971 (1948). ↩
18. Revised Statutes of 1852, ch. 47, art. 1, § 2, cl. 5, p. 384. ↩
19. Revised Statutes of 1852, ch. 47, art. 1, § 5, p. 384. ↩
20. Legal Status of Women in Kentucky, Nos. 18, 22; and KRS 402.020(5). ↩
21. Acts of 1798, ch. 41, § 8, in Statute Law of Kentucky, vol. 2. ↩
22. Acts of 1799, ch. 186, § 1, in Statute Law of Kentucky, vol. 2. ↩
23. Revised Statutes of 1852, ch. 47, art. 1, § 11, p. 385; re-enacted by Acts of 1891–93, ch. 205, p. 925, § 11, under which no license issued where either party was under twenty-one and not before married without the consent of the father or guardian, or of the mother where there was none or he was absent from the State, given in person or certified in writing over her signature before two subscribing witnesses; compiled as Kentucky Statutes § 2106 and now KRS 402.210. ↩
24. Gannon v. Alsbury, 1 A.K. Marsh. 76 (Ky. 1817), decided 29 November 1817 on a writ of error from the Christian Circuit Court, holding that the consent provisions of the marriage act govern the issue of the license and do not annul a marriage otherwise duly celebrated; digital images of the reporter page, Caselaw Access Project (https://static.case.law/ky/8/html/0076-01.html : accessed 27 July 2026). ↩
25. Jones v. Tevis, 4 Litt. 25 (Ky. 1823), decided 8 October 1823 on appeal from the Madison Circuit Court; digital images of the reporter page, Caselaw Access Project (https://static.case.law/ky/14/html/0025-01.html : accessed 27 July 2026). ↩
26. Revised Statutes of 1852, ch. 47, art. 1, § 2, p. 384, cls. 1–3; compiled as Kentucky Statutes § 2097 and now KRS 402.020. ↩
27. Revised Statutes of 1852, ch. 47, art. 1, § 1, p. 383; compiled as Kentucky Statutes § 2096 and now KRS 402.010. ↩
28. Revised Statutes of 1852, ch. 47, art. 1, § 3, p. 384. ↩
29. Revised Statutes of 1852, ch. 47, art. 1, § 4, p. 384; re-enacted by the revision of 1893, ch. 205, p. 925, § 4, and compiled as Kentucky Statutes § 2099. ↩
30. 1866 Ky. Acts ch. 556, § 1, "An act in relation to the marriage of negroes and mulattoes," approved 14 February 1866, in Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Session of the General Assembly Which Was Begun and Held in the City of Frankfort, on Monday, the Fourth Day of December, 1865 (Frankfort, Ky.: Printed at the State Printing Office, George D. Prentice, State Printer, 1866). ↩
31. Acts of 1866, ch. 556, § 2. ↩
32. Acts of 1866, ch. 556, § 2, closing proviso; the section fixes no time limit for making the declaration. ↩
33. Revised Statutes of 1852, ch. 47, art. 1, § 2, cl. 2, p. 384, and § 3. ↩
34. Acts of 1866, ch. 556, § 3. ↩
35. Acts of 1866, ch. 556, § 2, compiled as Kentucky Statutes §§ 1399a, 1399b-1, and 1399b-2, and carried as KRS 391.110 until its repeal by 1966 Ky. Acts ch. 184, § 8. ↩
36. Revised Statutes of 1852, ch. 30, § 4, p. 280, and § 11, cl. 2, allowing an alien to take as a distributee; and see KRS 391.060. ↩
37. Revised Statutes of 1852, ch. 47, art. 2, § 1, p. 387, with its marginal derivation to the act of 1846, ch. 42. ↩
38. The Weissinger Act, Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session of the General Assembly, Which Was Begun and Held on Tuesday, the Second Day of January, One Thousand Eight Hundred and Ninety-four (Frankfort, Ky.: Capital Printing Co., 1894), ch. 76, p. 176, amending and re-enacting article three of Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session … Begun and Held on Wednesday, the Thirtieth Day of December, Eighteen Hundred and Ninety-one; and of the Called Session … and of the Adjourned Regular Session (Frankfort, Ky.: Capital Office, E. Polk Johnson, Public Printer and Binder, 1893), ch. 205, p. 925, "An act relating to husband and wife, and entitled ‘Husband and Wife,’" approved 16 May 1893, § 32; digital images, Internet Archive (https://archive.org/details/actsgeneralasse17kentgoog : accessed 27 July 2026); compiled as Kentucky Statutes § 2127 and carried as KRS 404.010. ↩
39. Civil and Criminal Codes of Practice of Kentucky, prepared by Richard A. Buckner and Joshua F. Bullitt, commissioners, and Alvin Duvall, umpire, and revised and adopted by the General Assembly (Frankfort, Ky.: Printed at the Kentucky Yeoman Office, Major, Johnston & Barrett, 1876); digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=mdp.35112105479846 : accessed 27 July 2026), Civil Code § 34 [49 to 52], in ch. 3, art. 1, "Coverture," under which a wife sued or was sued alone in actions between husband and wife, in actions about her separate property, and in actions about her general property where he refused to join, and husband and wife joined in all others; carried as KRS 404.060; and Kentucky Statutes § 2128, carried as KRS 404.020. ↩
40. John D. Carroll, comp., Carroll's Kentucky Statutes Annotated: Containing All Laws of a General Nature in Force to January 1, 1930, official ed. (Louisville: The Baldwin Law Book Co., 1930), § 2129, deriving from 1894 Ky. Acts ch. 76, p. 176, amending the revision of 1893, ch. 205, p. 925, § 34. ↩
41. Simpson v. Smith, 142 Ky. 608, 134 S.W. 1166 (1911); and see Farmers Bank of Hardinsburg v. Richardson, 171 Ky. 340, 188 S.W. 406 (1916). ↩
42. Rose v. Rose, 104 Ky. 48, 46 S.W. 524, 20 Ky. L. Rptr. 417 (1898); and see Mitchell v. Violett, 104 Ky. 77, 47 S.W. 195 (1898). ↩
43. 1866 Ky. Acts ch. 555, § 1, approved 14 February 1866, amending Revised Statutes ch. 47, § 16 as printed at Richard H. Stanton, The Revised Statutes of Kentucky, 2 vols. (Cincinnati: R. Clarke & Co., 1860), 2:17; digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=mdp.35112105058160 : accessed 26 July 2026). ↩
44. Acts of 1866, ch. 555, § 2. ↩
45. Revised Statutes of 1852, ch. 24, § 20, p. 199; re-enacted by the revision of 1893, ch. 186, p. 829, § 16, and compiled as Kentucky Statutes § 505. ↩
46. Revised Statutes of 1852, ch. 24, § 21, p. 199. ↩
47. Revised Statutes of 1852, ch. 24, § 22, p. 199. ↩
48. Kentucky Statutes (Carroll's, 1930), § 506, deriving from Revised Statutes of 1852, ch. 24, § 22, p. 199, through Acts of 1891–93, ch. 186, p. 829, "An act concerning conveyances," approved 22 April 1893, § 17, as amended by 1910 Ky. Acts ch. 82, p. 249, § 4, approved 23 March 1910, in Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session … Begun and Held in the City of Frankfort, Kentucky, on Tuesday, January the Fourth, 1910 (Louisville: The Continental Printing Company, 1910). The 1910 act amends §§ 12, 13, 14, 17, 18, 19, 20, and 26 of the act concerning conveyances approved 22 April 1893. The separate examination does not appear in the section as revised. ↩
49. Revised Statutes of 1852, ch. 47, art. 4, § 3; compiled as Kentucky Statutes § 2132 and carried as KRS 392.020, restructured by 1956 Ky. Acts ch. 117, § 2. ↩
50. Revised Statutes of 1852, ch. 47, art. 4, § 9, p. 394; compiled as Kentucky Statutes § 2138 and carried as KRS 392.050. ↩
51. Revised Statutes of 1852, ch. 47, art. 4, § 7. ↩
52. Revised Statutes of 1852, ch. 47, art. 4, § 1, p. 393. ↩
53. Revised Statutes of 1852, ch. 24, § 16. ↩
54. Revised Statutes of 1852, ch. 93, "Slaves, Runaways, Free Negroes, and Emancipation"; articles repealed and amended by Acts of 1866, ch. 603. ↩
55. Acts of 1866, ch. 563, § 1, "An act conferring certain civil rights upon negroes and mulattoes," approved 14 February 1866. ↩
56. Acts of 1796, ch. 275, §§ 1–2, "An act to reduce into one the several acts directing the course of Descents," approved 19 December 1796, in William Littell, The Statute Law of Kentucky, vol. 1 (Frankfort, Ken.: Printed by and for William Hunter, 1809); digital images, Internet Archive (https://archive.org/details/LittellsStatutesVol1 : accessed 26 July 2026); the marginal note records that the act was copied from Virginia acts of 1785 and 1790. Restated at Revised Statutes of 1852, ch. 30, § 1; carried through The General Statutes of the Commonwealth of Kentucky (Frankfort, Ky.: S.I.M. Major, Public Printers, 1873), digital images, Internet Archive (https://archive.org/details/generalstatutes00johngoog : accessed 26 July 2026), into Kentucky Statutes § 1393 and now KRS 391.010. ↩
57. Revised Statutes of 1852, ch. 30, § 2, p. 279; compiled as Kentucky Statutes § 1394 and now KRS 391.040. ↩
58. Revised Statutes of 1852, ch. 30, § 3, p. 279; compiled as Kentucky Statutes § 1395 and now KRS 391.050. ↩
59. Revised Statutes of 1852, ch. 30, § 11, p. 280, cls. 3–4. ↩
60. Revised Statutes of 1852, ch. 30, § 11, cl. 5, p. 280, with its marginal derivation to the act of 1845, ch. 34. ↩
61. Legal Status of Women in Kentucky, Nos. 15–16; the rule was compiled as Kentucky Statutes § 1403 and carried as KRS 391.030. ↩
62. Legal Status of Women in Kentucky, No. 15. ↩
63. Acts of 1797, ch. 311, "An act concerning Guardians, Infants, Masters and Apprentices," approved 1 March 1797, in Littell, Statute Law of Kentucky, vol. 1, governed guardianship and apprenticeship for the first half-century; the arrangement described here is that of Revised Statutes of 1852, ch. 43, art. 1, § 1, p. 372; compiled as Kentucky Statutes § 2015 and carried as KRS 387.020. ↩
64. Revised Statutes of 1852, ch. 43, art. 1, § 3; and see KRS 387.070. ↩
65. Revised Statutes of 1852, ch. 43, art. 1, § 2; compiled as Kentucky Statutes § 2016 and carried as KRS 387.040; and see Mason v. Williams, 165 Ky. 331, 176 S.W. 1171 (1915). ↩
66. Revised Statutes of 1852, ch. 43, art. 1, § 6, p. 374; compiled as Kentucky Statutes § 2021 and carried as KRS 387.030 until its repeal in 1990. ↩
67. Revised Statutes of 1852, ch. 43, art. 1, § 7; the rule was carried forward at KRS 387.050. ↩
68. Revised Statutes of 1852, ch. 43, art. 1, § 12. ↩
69. Revised Statutes of 1852, ch. 64, art. 1, § 1, p. 466. ↩
70. Revised Statutes of 1852, ch. 64, art. 1, § 3, p. 466. ↩
71. Revised Statutes of 1852, ch. 64, art. 1, § 4, p. 466. ↩
72. Revised Statutes of 1852, ch. 64, art. 1, § 5, p. 466. ↩
73. Acts of 1866, ch. 621, § 2, approved 16 February 1866, amending Revised Statutes ch. 64, art. 1, as printed at Stanton, Revised Statutes of Kentucky, vol. 2, p. 137. The title and approval date are corroborated by the 1867 session volume, whose ch. 447 amends "An act to amend article 1, chapter 64, Revised Statutes, title 'Master and Apprentice,'" approved 16 February 1866. ↩
74. Kentucky Statutes (Carroll's, 1930), §§ 2594, 2596, deriving from General Statutes of 1873, ch. 74, art. 1, §§ 4, 6. ↩
75. Acts of 1866, ch. 621, § 4. ↩
76. Revised Statutes of 1852, ch. 30, § 5, p. 280; compiled as Kentucky Statutes §§ 1397 and 1398 and carried as KRS 391.090 until its repeal in 1986. ↩
77. Revised Statutes of 1852, ch. 30, § 6. ↩
78. Revised Statutes of 1852, ch. 6 (Bastardy), p. 141; compiled as Kentucky Statutes § 166 and carried as KRS 406.010 until its repeal in 1964. ↩
79. Acts of 1796, ch. 293, § 1, "An act to reduce into one, the several acts concerning Wills, the distribution of Intestates' Estates, and the duty of Executors and Administrators," in Littell, Statute Law of Kentucky, vol. 1, giving the power to devise to every person aged twenty-one years or upwards, of sound mind and not a married woman; and § 4, providing that no person under the age of eighteen years shall be capable of disposing of his chattels by will. The marginal note records that the act was copied from a Virginia act of 1785 and amended in 1800. Then Revised Statutes of 1852, ch. 106, § 2, p. 693; compiled as Kentucky Statutes §§ 2147, 4825, and 4827, and carried as KRS 394.020. ↩
80. Revised Statutes of 1852, ch. 106, § 3; compiled as Kentucky Statutes § 4826 and carried as KRS 394.030, which preserves both exceptions in the same words with the age reduced to eighteen; digital images, Justia (https://law.justia.com/codes/kentucky/chapter-394/section-394-030/ : accessed 26 July 2026). ↩
81. Revised Statutes of 1852, ch. 106, § 4, p. 694. ↩
82. Revised Statutes of 1852, ch. 106, § 9, p. 694. ↩
83. Revised Statutes of 1852, ch. 106, § 5, p. 694; compiled as Kentucky Statutes § 4828 and carried as KRS 394.040. ↩
84. Revised Statutes of 1852, ch. 37, § 14, p. 333. ↩
85. Acts of 1797, ch. 313, § 1, "An act concerning Tithables, and directing the mode of laying and collecting the County Levy," approved 1 March 1797, in Littell, Statute Law of Kentucky, vol. 1. Section 2 required the commissioners of the tax to demand from each tithable person a written list of the tithables in his or her family. The age for free males stands at twenty-one in Revised Statutes of 1852, ch. 26, art. 1, § 1, p. 208, which keeps enslaved people tithable from sixteen. ↩ ↩
86. Revised Statutes of 1852, ch. 26, art. 1, §§ 2–3. ↩
87. Revised Statutes of 1852, ch. 26, art. 1, § 1, p. 208, second sentence. ↩
88. Acts of 1866, ch. 603, ¶ 2, repealing Revised Statutes ch. 83, art. 3, § 1, and so much of art. 6, § 11 as required the listing of slaves (Stanton, vol. 2, pp. 244, 253); and ¶ 11, repealing so much of Revised Statutes ch. 26, art. 1, §§ 1, 3, 5 as made slaves tithable (Stanton, vol. 1, pp. 295–96). ↩
89. Acts of 1865–66, ch. 636, §§ 1–3, "An act for the benefit of the negroes and mulattoes in this Commonwealth," approved 16 February 1866: § 1 setting all taxes collected from negroes and mulattoes apart as a separate fund, half to their paupers and the remainder to the education of their children; § 2 levying, in addition to the tax already laid by law, two dollars on every male negro and mulatto over eighteen; and § 3 requiring the commissioner of taxes in each county to keep a separate book, or a separate column in his book, in which the names of all male negroes and mulattoes over eighteen were recorded. Re-enacted in the same terms and the 1866 act repealed by Acts of the Commonwealth of Kentucky, Passed by the General Assembly at the Adjourned Session (January 3, 1867), vol. 1 (Frankfort, Ky.: Printed at the Kentucky Yeoman Office, John H. Harney, Public Printer, 1867), ch. 1913, pp. 94–96, §§ 2–4, 9, approved 9 March 1867, which confined the proceeds to the county of collection; amended 9 January 1868 and repealed 9 February 1871, the chain recited in Featherston v. Thompson, 10 Bush 140, 141–42 (Ky. 1873); digital images of the reporter pages, Caselaw Access Project (https://static.case.law/ky/73/html/0140-01.html : accessed 27 July 2026). ↩
90. Revised Statutes of 1852, ch. 55, art. 3, § 2. ↩
91. Revised Statutes of 1852, ch. 55, art. 1, § 1, p. 426. ↩
92. Kentucky Statutes (Carroll's, 1930), § 2241. ↩ ↩
93. Acts of 1866, ch. 595, § 1, approved 15 February 1866. ↩
94. Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session of the General Assembly Which Was Begun and Held in the City of Frankfort, Kentucky, on Tuesday, January the Second, 1906 (Louisville: Geo. G. Fetter Company, 1906), ch. 54, p. 302, approved 17 March 1906, and ch. 64, pp. 322–32, approved 21 March 1906; digital images, Internet Archive (https://archive.org/details/actsgeneralasse02kentgoog : accessed 27 July 2026). Repealed respectively by 1908 Ky. Acts ch. 60, p. 152, and ch. 67, p. 181, § 22; the 1908 legislation was repealed in turn by Acts of 1910, ch. 76, p. 226, approved 23 March 1910, punishing any parent, guardian, or other person who encouraged or contributed to the conditions rendering a child dependent, neglected, or delinquent, compiled as Kentucky Statutes §§ 331g-1 and following. The 1908 chapters and pages come from the derivation notes in Carroll's; read the acts in the session laws for 1908. ↩
95. Kentucky Statutes § 331e-1, deriving from 1908 Ky. Acts ch. 67, p. 181, § 1. ↩
96. Revised Statutes of 1852, ch. 74 (Penitentiary), § 10. ↩
97. Acts of 1866, ch. 247, § 3, amending the charter of the House of Refuge. ↩
98. 1872 Ky. Acts ch. 139, § 1, "An act to amend the Laws of Evidence in this Commonwealth," approved 30 January 1872, in Acts of the General Assembly of the Commonwealth of Kentucky, Passed at the Regular Session of the General Assembly, Which Was Begun and Held in the City of Frankfort on Monday, the Fourth Day of December, 1871 (Frankfort, Ky.: Printed at the Kentucky Yeoman Office, S.I.M. Major, Public Printer, 1872); digital images, Internet Archive (https://archive.org/details/bub_gb_2lcyAAAAIAAJ : accessed 26 July 2026); carried through the Civil Code of Practice (1876), § 605 [669], making every person competent to testify unless the court found them incapable of understanding the facts their testimony concerned, to KRS 421.200. ↩
99. Acts of 1871–72, ch. 139, § 3. ↩
100. Burnita Shelton Matthews, "The Woman Juror," Women Lawyers' Journal 15, no. 2 (January 1927); digital images, Women's Legal History, Stanford Law School (http://wlh.law.stanford.edu/wp-content/uploads/2011/01/the-woman-juror-15wlj151927.pdf : accessed 26 July 2026), describing the construction adopted in Delaware, Indiana, Iowa, Kentucky, and Ohio after 1920 by which suffrage carried the right and obligation to serve as a juror. The Attorney General's opinion holding women qualified and entitled to serve on grand juries is cited by counsel in Boyd & Jones v. Commonwealth, 194 Ky. 73, 74 (1922); digital images of the reporter page, Caselaw Access Project (https://static.case.law/ky/194/html/0073-01.html : accessed 27 July 2026). A jury of eleven men and one woman was challenged in McLaughlin v. Commonwealth, 192 Ky. 206 (1921), where the court called the point "a question of interest at the present" but held it unreviewable under Criminal Code § 281; https://static.case.law/ky/192/html/0206-01.html. The Attorney General's opinion is the authority that governed in practice: the Court of Appeals left the question open on both occasions it was raised, and the jury lists were made up on the Attorney General's construction throughout the period. ↩
101. Legal Status of Women in Kentucky, stating that women are eligible on the same terms as men but are declared exempt as a group, citing KRS 29.010, 29.020, and 29.030. The exemption comes from an act approved 20 March 1928, quoted in full in Smith v. Rose, 224 Ky. 154 (1928), which also shows a woman drawn from the Knox County jury wheel and qualified to serve on the petit jury that April; digital images of the reporter page, Caselaw Access Project (https://static.case.law/ky/224/html/0154-01.html : accessed 27 July 2026). ↩
102. Acts of 1866, ch. 563, § 3. ↩
103. Acts of 1866, ch. 563, § 2. ↩
104. Blyew v. United States, 80 U.S. (13 Wall.) 581 (1872); digital images, University of Minnesota Law Library (https://librarycollections.law.umn.edu/racial-justice/blyewvus005.html : accessed 26 July 2026). ↩
105. Acts of 1871–72, ch. 139, § 7, providing that no one shall be incompetent as a witness because of his or her race or color; § 8 put the act in force from its passage, and it was approved 30 January 1872. ↩