Writing the Legal Record

Law Reporters in Nineteenth-Century Kentucky

Kurt X. Metzmeier

• Publisher: The University Press of Kentucky
• Year: 2016
• ISBN:
  9780813168616
• Topic: Law
• Subtopic: Legal History
• Index: Law

Any student of American history knows of Washington, Jefferson, and the other statesmen who penned the documents that form the legal foundations of our nation, but many other great minds contributed to the development of the young republic's judicial system—figures such as William Littell, Ben Monroe, and John J. Marshall. These men, some of Kentucky's earliest law reporters, are the forgotten trailblazers who helped establish the foundation of the state's court system.

In Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky, Kurt X. Metzmeier provides portraits of the men whose important yet understudied contributions helped create a new common law inspired by English legal traditions but fully grounded in the decisions of American judges. He profiles individuals such as James Hughes, a Revolutionary War veteran who worked as a legislator to reform confusing property laws inherited from Virginia. Also featured is George M. Bibb, a prominent U.S. senator and the secretary of the treasury under President John Tyler.

To shed light on the pioneering individuals responsible for collecting and publishing the early opinions of Kentucky's highest court, Metzmeier reviews nearly a century of debate over politics, institutional change, human rights, and war. Embodied in the stories of these early reporters are the rich history of the Commonwealth, the essence of its legal system, and the origins of a legal print culture in America.

1

THE BARRISTER

James Hughes (d. 1818)

James Hughes, A Report of the Causes Determined by the Late Supreme Court for the District of Kentucky, and by the Court of Appeals, in Which the Titles to Land Were in Dispute [1785–1801] (Lexington: Printed by John Bradford, 1803).

The legal system of the new state of Kentucky was born in 1792 amid a thicket of thorny disputes over confused land claims, uncertain boundaries, and unsettled law. Into this wilderness stepped James Hughes. As a legislator, he drafted laws to reform the muddled property laws inherited from Virginia; as an attorney, he litigated the myriad land cases that clogged the new commonwealth’s courts. While waiting to have his own cases heard in the Kentucky Court of Appeals, he took detailed notes on the other cases before him. To these accounts, he added notes for his own arguments and similar notes from his friend George Nicholas. From these scraps of foolscap, Hughes fashioned the first case reporter for the state of Kentucky, known as Hughes’s Reports.

The finished quarto volume was beautiful, filled with detailed engravings by the artful silversmith who would later design the seal of the commonwealth of Kentucky. Alas, the splendid tome was a spectacular financial bust. Like many similar projects financed by subscription, it fell prey to the state’s volatile population; pledged buyers either moved west, chasing the expanding frontier, or experienced the cruel change of fortune so frequent in those days. Nonetheless, Hughes’s volume struck a path that would be followed by others.

The career of Kentucky’s first law reporter spanned the state’s transition from a frontier territory of Virginia to a thriving new commonwealth. Little is known about James Hughes’s early life. Some of his contemporaries reported that he had been born in England and immigrated to the Kentucky Territory in his youth, but that story is unproved and appears unlikely. His date of birth is also unknown, but at his death in 1818, he was counted among the generation of George Nicholas (1754–1799) and John Breckinridge (1760–1806).¹ Referred to as a “barrister” by his contemporaries, there is the faintest possibility that he received his legal training in one of London’s Inns of Court. However, he is not listed among the Americans at the Inns of Court meticulously documented in 1924 by E. Alfred Jones, and that fact would have been noted in Hughes’s obituaries, which provide the most solid account of his life.²

What is somewhat clearer is that he was likely a soldier in the Revolutionary War, serving as a private on the Virginia Line. For this service he was awarded land warrants to be perfected in Kentucky. His move to Kentucky, presumably from Virginia, is suggested by his admission to the Lincoln County bar in 1788.³ At the time, Lincoln County was huge, representing more than one-third of Kentucky, and it contained the thriving town of Stanford. Hughes appears as a lawyer in early records throughout Kentucky’s Bluegrass region, and he is likely the same James Hughes who signed a petition from Kentucky landowners to the Virginia legislature, dated September 9, 1791, asking for more time to return land surveys to the register’s office in Richmond.⁴

Hughes spent a large part of his productive life in Lexington. In 1788 he helped organize the Lexington Light Infantry, and in 1789 Lieutenant Hughes was promoted to captain and given command.⁵ By the mid-nineteenth century, the unit was mostly known for its smart uniforms and crisp parade drills (both of which soon wilted in the gun smoke and gore of the Civil War), but back in the 1780s, the still potent threat of Shawnee raiders gave the Light Infantry a real purpose.

In 1793 Hughes was elected trustee of the city for the first time; he would be returned to office four more times and in 1795 served as chairman.⁶ He was also active in the city’s social and cultural affairs, supporting the building of a public library and encouraging the growth of educational institutions as Lexington transitioned from a frontier outpost to the “Athens of the West.”⁷ Under Hughes’s eye, and often with his active assistance, Lexingtonians opened theaters and bookstores and founded literary and political societies. The state seminary grew into Transylvania College, the most prestigious educational institution west of the Allegheny Mountains.

Hughes also represented Fayette County in the Kentucky House of Representatives from 1793 to 1797 and from 1801 to 1803.⁸ His legal acumen and drafting skills were well recognized, and in 1796 he was asked to help “amend and reduce into one the several acts dealing with the law of descents.”⁹ Later that year, he oversaw the organization of all the laws of Virginia regarding land titles into one comprehensive act.¹⁰ In 1801, when confusion arose over which other laws of Britain and Virginia were still in force in Kentucky, Hughes headed a committee to make that determination.¹¹

Politically, James Hughes embraced the democratic ideals of his friends George Nicholas, John Breckinridge, and John Bradford, publisher of the Kentucky Gazette.¹² Hughes, Breckinridge, and Bradford joined with brothers Robert and Thomas Todd to found the Democratic Society of Kentucky, which advocated the end of slavery, fought for free navigation of the Mississippi River, and supported the presidential campaign of Thomas Jefferson.¹³

Despite his political and civic activities, Hughes was best known to his contemporaries as one of the state’s foremost lawyers and legal scholars. He was counted among the leading appellate lawyers of his day.¹⁴ In 1811 Hughes moved to Frankfort, where he continued to apply his considerable forensic skills in the state capital.¹⁵ He was a widely recognized expert in property law and was especially adept at navigating the tangle of land titles that Kentucky inherited from its time as a territory of Virginia. The Old Dominion’s colonial and republican governors had dispensed land patents willy-nilly to veterans of the French and Indian War and the Revolutionary War. The patents did not convey the land itself but only the right to enter, survey, and record claims to unclaimed land. If any of these steps were faulty, the title would not be perfected. This, along with questionable surveying practices, the rare use of permanent boundary markers, and chicanery by some land speculators, resulted in a mess of overlapping claims that filled the new state’s courts with litigants.¹⁶

As a legislator, Hughes had helped rewrite Kentucky’s land laws to alleviate some of the problems. However, much of the damage had already been done, and title cases from the state’s founding years clogged the court dockets.¹⁷ Hughes would spend many hours arguing the land claims of his clients before the Court of Appeals, Kentucky’s first court of last resort. He was not blind to the advantages his vast knowledge gave him in the “great game” of land speculation and soon acquired significant landholdings around the state.¹⁸

Respected in his time, James Hughes would be unknown in ours if not for his single volume of law reports, which inaugurated case law reporting in the commonwealth of Kentucky. Covering the years 1785 to 1801, the reports recount judicial decisions in the numerous land cases that clogged Kentucky courts before and after statehood. In many of the cases, Hughes was also an advocate; in others, he made good use of the time he spent listening to colleagues argue their cases while waiting for his own matters to come before the court.

In the preface, Hughes notes that the work “was undertaken by Thomas Todd and the author jointly.” Knowing that the project was going to be expensive, the two men agreed to “join in the expense and risk,” partially funding the book by subscriptions. A “different arrangement” was later made, and with Todd’s assent, Hughes published the work at his own risk.¹⁹ It seems that Todd and Hughes remained friends, so it is possible that Todd’s elevation in 1801 to the Court of Appeals caused him to withdraw. Todd was later named chief justice of that court in 1806, and in 1807 President Thomas Jefferson appointed him to the US Supreme Court.²⁰ Or it is possible that Todd was just a shrewder investor; in the preface to his own law reports, Martin D. Hardin says that Hughes lost a lot of money on the book, which discouraged the publication of law reports for nearly a decade.²¹

The large, crown quarto volume published by Hughes was 236 pages, exclusive of front matter, and contained 41 plats masterfully engraved by prominent Lexington silversmith and artist David Humphreys.²² In 1792 the state legislature had paid Humphreys twelve pounds sterling to create Kentucky’s first state seal. He was given the vague instructions that it should show “two friends embracing, with the name of the state over their heads and around about the following motto: United we stand, divided we fall.”²³ Humphreys’s version depicted two men in formal dress; only later did one of them acquire the frontier garb and coonskin cap now found on the state seal and flag.²⁴ Humphreys was also responsible for engraving the maps in his friend Robert B. McAfee’s memoir of the War of 1812.²⁵ Today, Humphreys’s silver work is much more highly regarded than his book engraving.²⁶ However, his plats for Hughes’s Reports are beautiful and include whimsical details such as the depiction of an American bison. The cost of the engravings themselves, as well as the cost they added to binding, may well have contributed to the volume’s lack of financial success.

The reports were printed by Hughes’s friend John Bradford, the state’s pioneer printer and a leading publisher and patron of the cultural arts. In the late stages of Kentucky’s push for independence from Virginia, the intrepid entrepreneur anticipated the need for a state printer, so he bought a press in Pittsburgh and transported it by raft down the Ohio River and then overland from Maysville to Lexington via the buffalo trace that would later become the Maysville Turnpike.²⁷ Bradford thus received the contract to print the acts and journals of the new state legislature when it began work in 1792. He was soon publishing the state’s leading newspaper, the Kentucky Gazette, as well as many early law books, including the first collection of statutes.²⁸

Sadly, few people have the opportunity to see the elegance of Hughes’s original work, which is among the rarest of Kentucky law books. Most law libraries carrying Kentucky Reports have the 1869 “century edition” by Cincinnati publisher Robert Clarke & Company. Hughes’s work, numbered as 1 Kentucky Reports, was reset by Clarke in a more uniform typeface, and the illustrations were reengraved to fit a smaller but more standard page size (22 by 14 cm, compared with the 20 by 25 cm original). The reconfiguration dramatically changed the pagination, and the Clarke volume ballooned to 458 pages.²⁹ The plats were crudely simplified, and sadl...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Introduction
• 1. The Barrister: James Hughes (d. 1818)
• 2. The Reporter Who Was Not: Achilles Sneed (1772–1825)
• 3. The Soldier: Martin D. Hardin (1780–1823)
• 4. The Jurist: George M. Bibb (1776–1859)
• 5. The Brother: Alexander K. Marshall (1770–1825)
• 6. The Poet: William Littell (1768–1824)
• 7. The Rebel: Thomas Bell Monroe (1791–1865)
• 8. The Scion: John James Marshall (1785–1846)
• 9. The Editor: James G. Dana (1785–1840)
• 10. The Professional: Ben Monroe (1790–1860)
• 11. The Banker: James P. Metcalfe (1822–1889)
• 12. The Copperhead: Alvin Duvall (1813–1891)
• 13. The Last: W. P. D. Bush (1823–1904)
• Conclusion
• Acknowledgments
• Notes
• Index