Bench & Bar

JAN 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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7 BENCH & BAR | In 1808, in a case litigated by Henry Clay, the Kentucky Court of Appeals construed a statute that barred the Court from applying English common law decided after July 4, 1776. e Court held the statute invalid. Kentucky retained the common law of Virginia, the parent from which it had broken away. 1 e methods of reporting Court of Appeals decisions by the early reporters were highly individualistic. Some recited little more than the decision itself. Others ventured into illustrated editions, syn- opsized the litigants' arguments, offered commentaries. Some opinions were withheld from publication on the ground of feeling some perceived doubt as to the correctness of the result, according to Louisvillian Lewis Dembitz, whose nephew Louis Brandeis served on the U.S. Supreme Court in the twentieth century. 2 e post of reporter was important but not very remunerative, and the reporters felt free to practice law, to serve as legislators and judges. Some became members of the federal House, two became U.S. senators, and one became U.S. Secretary of the Treasury. e act of reporting appellate cases may not have appealed to the author as the material for a good narrative, and so he may have felt free to report a more interesting story: what the reporters did oth- erwise. He thus brings into view the great political and economic questions of the Commonwealth's early epoch. THE OLD COURT-NEW COURT DISCORD. Following a bitterly contested election for governor, Kentucky in 1900 had two state governments. In its early decades, Kentucky briefly had two courts of appeals. 3 e Commonwealth was hard-pressed by the economic crisis known as the Panic of 1819. e General Assembly passed sev- eral debt-relief laws the Court of Appeals held invalid under the contract clauses of both the Kentucky and U.S. constitutions. e pro-relief forces achieved the election of a sympathetic governor and a working legislative majority, which in 1824 abolished the sitting Court of Appeals, and established a new one, as the Old Court sat in a Frankfort church. 4 A reporter with the Dickensian name of Achilles Sneed (1772- 1825) who also served for almost 24 years as Clerk of the Court of Appeals, was ensnared in this constitutional crisis. Aiming to supplant him, Sneed's New Court counterpart led a group who broke into Sneed's home office at Clinton and Ann streets in downtown Frankfort to commandeer the Old Court's records. But some eluded the raiders, and Sneed was made the subject of court process to surrender them, and fined $50 for not doing so. Much legal and political wrangling ensued among the competing courts' adherents, but by 1826, the Old Court partisans won control of the legislature and the court controversy concluded peacefully. e stress of the Court wars was thought to have contributed to Sneed's death in 1825. JOHN JAMES MARSHALL (1785-1846), reporter from 1831 to 1834, was an Old Court supporter and thus opposed to most debt-relief measures. But Marshall was also that rarity in the political sphere: one who espoused a cause that cut against his personal interest. Mr. Marshall co-signed for the debts of others, as many public men did in those days, and found himself under a pile of debt. A legislator, judge, and lawyer, Mr. Marshall worked quite capably but unsuccessfully until the end of his life to pay his creditors. THE PECULIAR INSTITUTION AND THE AFTERMATH. The first of the reporters James Hughes (d. 1818) produced "the beautiful squarish volume that started caselaw reporting in Kentucky." He also was a founder of the Democratic Society of Kentucky, which advocated for an end to slavery. WILLIAM LITTELL (1768-1824), dubbed "e Poet" by Prof. Metzmeier, was among the best of the reporters. Littell "almost singlehandedly created the infrastructure of legal research in Kentucky." 5 From his perch as editor of a Frankfort newspaper, he also advo- cated for liberalized divorce law and was a searing critic of slavery; positing that female slaves were little more than concubines for their white masters. e life of THOMAS BELL MONROE (1791-1865) coincided with when Kentucky joined the Union until the conclusion of the Civil THOMAS BELL MONROE Joseph Hunt Bush's portrait of omas B. Monroe. Photo Credit: Frick Art Reference Library

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