Courts and Bar of Todd County, Kentucky

Under the Constitution of 1799, there were three inferior courts, the Circuit Court, the County Court and the single Magistrate. The first was the same as at present, though in the scarcity of lawyers, the fashion was to travel the circuit, the Judge leading and the bar following as escort. Hopkinsville, Elkton, Russellville and Greenville were the principal points to which the practice of the time led the leading lawyers of the Todd County bar. The County Court was the great local arbiter of county interests, and was composed of a "competent number" of justices appointed from the county at large, and commissioned by the Governor of the State for good behavior. It was provided by law, however, that the Justice of the Peace longest in commission became ex ipso facto the Sheriff at the first vacancy. The official term of this officer was two years, so that at the expiration of this period the Justice of the Peace was once more relegated to the position of a sovereign." The membership of the court was maintained by further appointments, which, while it was not actually for the term of good behavior, would in the natural order of things continue, after the first appointees were exhausted, some twenty-five years. As a matter of fact very few of the magistrates served as Sheriff; preferring to " farm out the office," as the phrase went. There were always those who were willing to pay from $800 to $1,000 for the position of deputy and the business and emoluments of the office, and this arrangement was almost invariably effected. Under the Constitution of 1850, all offices of the court and county were made elective, and the office of County Judge established. The single magistrate has jurisdiction of civil cases up to the value of $100, from whom an appeal can be taken either to the County Judge's Court or to the Circuit Court, where the value involved is $25 or more. The County Court now consists of a Judge who possesses the powers and jurisdiction of the old County Court, save in the matter of laying the county levy and passing upon claims against it. These matters come before the Court of Claims, composed of the two magistrates in each district, who assemble once a year to dispatch the business. The court of the County Judge is practically in session on every day save Sundays, though certain kinds of business must be done on regularly appointed court days. This officer holds two' courts, one monthly for the discharge of business where the county is a party interested in the issue; the other, the Court of Quarterly Sessions, where the trial of all causes between citizens are had. This court has jurisdiction in matters of probate, in civil actions not exceeding $200, and has when the Circuit Court is not in session jurisdiction in cases of misdemeanors.

Todd County was first placed in the Seventh Judicial District, the first Circuit Court being held in 1820. Judge Ben Shackelford presided, and R. P. Henry attended as Commonwealth's Attorney. At this court Willis L. Reeves produced his commission, and was sworn in Clerk of the Circuit Court. He was a man noted no less for his ability than for his piety, was a Ruling Elder in the Cumberland Presbyterian Church, and remained in office until succeeded by Ben T. Perkins, Sr., under the present Constitution. The first term of court was held in what is now the " Nick and Will House," and the following grand jury, composed of some of the leading men of the community, was impaneled: William C. Davis, foreman; Archibald Bristow, William B. Scott, Samuel Alley, John Kirk, John Fletcher, William Harlan, Wiley B. Jones, John Craften, George Clay, Thomas Allender, Thomas G. Greenfield, William Geartin, Thomas Hadden, William Parham, Green Rayburn, Alexander Gilmore, Bernard Edwards, William Crutchfield and James Kendall. But three presentments were the result of their deliberations, one for " suffering unlawful gaming and keeping a disorderly house," and three for " tippling," against three persons, two of whom were " surveyors of the roads." Judge Shackelford presided until April, 1822, when Henry P. Broadnax came to the bench, and a Mr. Macey was Commonwealth's Attorney. Broadnax continued until 1831, when the Hon. Asher W. Graham succeeded him. The latter was a man of marked uprightness, of no great intellect, but delighted in justice, kindness and mercy. Of the first two judges, Shackelford was a man of great firmness, and was moved from an opinion once formed with great difficulty. Broadnax was of rather skeptical notions, a self-important and somewhat aristocratic man, and quite eccentric. He was a wealthy old bachelor, a great advocate of temperance, and never suffered a drunken man to get out of the court house without paying a penalty or going to jail. He was also an out-spoken Whig of the old line, and violently opposed to the Democracy of Gen. Jackson.

Urban Kennedy relates a story of him to the effect that at a very advanced age he concluded to seek the consolations of religion. " He had two friends, Uncles Billy Harris and Alexander Chapman, Cumberland Presbyterian ministers, who were his religious oracles. Under their ad-vice he attended a camp-meeting a few miles southeast of Russellville. He set about the work in hand in good earnest, and when the anxious mourners were called up he walked into the altar and knelt at a seat in the straw, engaging in prayer. After the exercises had progressed awhile quite a young lad came into the light and was loud with happy shouting. The boy's attention was attracted to Judge Broadnax, and throwing him-self down by the Judge began, with a tender hug, to instruct him in a noisy tirade. This was too much for the dignity of the man, and partially raising himself up he seized the boy by the arm with a shake and asked him if he had got religion. Yes, thank God, I know I have,' replied the boy. ` Then just get away from me and let me get it too,' said the Judge, as he released him with another shake. Immediately an Elder came who knelt down by the aged penitent and sought to instruct him. The Judge knew him, and raising up again asked the Elder if he did not carry on a distillery. The Elder replied that he did, whereupon the Judge gave him a shove, saying, that no man who manufactures that damnable stuff which is killing thousands, both in soul and body, should talk to him on a religious subject of so much moment as the present crisis. The Elder left, and the Judge called his two friends, Chapman and Harris, and asked them to go with him to the grove, saying that he could not get religion in such a state of confusion. So away they went by them-selves. Kneeling down the ministers instructed their friend and prayed for him in alternation Finally, in the closing supplication Chapman prayed for converting power, that the poor old sinner who had spent all his life in sin might be converted, and added: ' Oh Lord, convert him now, and take him home from this sinful, distracting world to heaven! ' To which the Judge responded, 'Amen; do, my good Lord, and that quickly, before Gen. Jackson is crowned King of the United States!' The story does not relate the final result of all this effort.

The early bar of Todd County numbered among its members some of the most prominent members. of the profession in this section of the State. Of the lawyers from Hopkinsville Were Messrs. Sharp, Patton, Mayes and others; from Russellville were Hise, Macy and others; from Warren, J. R. Underwood, Henry Grider, and of later years W. V. Loring and W. L. Underwood. Of the Elkton bar some of the earlier members were J. M. Davidson, Thomas Johnson, W. W. Fry, Thomas M. Smith, Thomas W. Taylor, Charles S. Morehead, Cyrus Edwards, J. M. Strode, Burrus E. Pitman, Finis E. McLean, Francis M. Bristow, John Umblevany, Treadwell S. Ayres, Joseph A. Russell, Ninian E. Gray, William Landsdale, Benjamin T. Perkins, Sr., H. G. Petrie, H. G. Bibb, Samuel Kennedy, J. H. Lowry, G. Terry, etc. Of the earlier lawyers many left for a larger field after giving promise of some ability. Fry stayed here but a few years, when he left the State; Smith went to St. Louis, and subsequently published a volume of reminiscences, which was once found in many of the libraries here; Ayres went to Memphis and became prominent in legal circles. Finis McLean was one of the early bar who remained and gained both wealth and renown. He was a man of versatile talent, a fine debater and the great champion of the Whigs in this section. He was repeatedly pitted against the renowned Democratic speakers of the day, and never failed to bear off the laurels of the occasion. Before the court and jury he gained his cause with the same address, and for years was the leading member of the bar. He was elected to the lower house of the State Legislature in 1837, and would have been returned a second time had he pressed his claim, but he seemed to have satisfied his ambition in the single term. He was an earnest member of the church and a strict moralist in all his deportment, with a fatal exception. In later life he re-tired from the practice of his profession and turned his attention to farming, at which he seemed as prosperous as in his profession. He subsequently left the State, and a few years afterward died.

Succeeding him at the head of the profession here was IF. M. Bristow. He came to the bar in 1826, after receiving a thorough education in the classics as well as English. He was well read in the law and rapidly acquired a large and lucrative practice. His great claim upon the respect and confidence of the people was the sterling uprightness of his character . This fact made him also a great power with a jury. Without eloquence or any attempt at rhetoric or meretricious accomplishment he became known as a great advocate. Before a jury he was always plausible and fair, and his earnestness did the rest. He was a lawyer of large resource, and while at first sight he was sometimes undervalued, he never failed to maintain the control of his case and rise equal to any emergency that presented itself. He " never failed," in the language of one who often met with him at the bar. Mr. Bristow was a great admirer of Burns, and it is said in a case where he was prosecuting certain patrollers for the unwarranted punishment of a Negro, that he quoted " The Cotter's Saturday Night " in full to the jury, and with such effect that in spite of natural prejudices they gave his client a verdict. In the celebrated Lycurgus Leavell case, when some of the strongest legal talent of this part of the State was arrayed against him, and after several eloquent speeches the opposing counsel were confident they " had the jury," one of that counsel relates: " Bristow hung the jury with a quotation from St. Paul," and it may be added eventually won the case. Mr. Bristow was elected to the lower House of the Legislature in 1831; to the State Senate in 1846; as member of the Constitutional Convention in 1849; in 1853 was elected to Congress for the unexpired term of Presley Ewing; and in 1859 was elected to. the Thirty-sixth Congress. Few lawyers in southern Kentucky had more followers in his profession, several of the present bar having received their early legal instructions in his office. He died in 1864 at Elkton.

An early student in the office of Mr. Bristow was James A. Russell. He was admitted to the bar in 1837, and for two years was in partner-ship with his preceptor. He was a ready speaker and found ample opportunity to develop his natural gift of oratory. He was the stock speaker of this region, was repeatedly called upon to fill the appointment of some absent speaker, and no matter what the occasion, left no room for regret that the regular appointee had not been present. He represented the county in the Legislature during 1855-57, and is now serving his second term as Clerk of the Circuit Court. H. G. Bibb was a great little man; a, man of small stature, but large natural ability. He came to Elkton without money or friends, his spare clothing in a handkerchief, and went at once into a tailor shop and learned the trade. In the meantime he borrowed law books and studied his profession, and was afterward admitted to the bar. With little culture, save what he found in his law books, he became a power in the county. He was elected in 1848 to the lower house of the State Legislature, and in 1851-55 to the State Senate. In 1854, John B. Thompson having resigned the office of Lieutenant-Governor, Bibb was on the ninth ballot elected Speaker of the Senate. His short but brilliant career was untimely closed by dissipation. Samuel Kennedy was another lawyer of this date; a man of strong will, great energy and power, and successful in his profession. He lacked the faculty of accumulating wealth, however, and died in 1880, with an inconsiderable portion of the property he earned in his practice. H. G. Petrie is the only one of the old bar in the active practice of his profession now. Deprived of liberal opportunities to study his profession, he borrowed legal text-books from Mr. Bristow's library and read them at night. In 1844 he came to Elkton from the country and entered the office of Mr. Bristow on salary, and in 1847 formed a partnership with his employer, which continued until the death of Mr. Bristow in 1864. The senior partner's political duties, and widely extended practice in other courts, gave Mr. Petrie an excellent opportunity to develop his ability in the practice of his profession, and on the death of his partner gave him the leading position at the Elkton bar, which he has since maintained. The members of the present bar are: H. G. Petrie, W. L. Reeves, G. Terry, B. T. Perkins, Jr., F. H. Bristow, W. B. Reeves, W. B. Harrison, H. F. Willoughby, and G. B. McClellan.

Cause Celebre

The early practice in Todd County as elsewhere in Kentucky was largely confined to land litigation, and complications growing out of the institution of slavery. This practice involved a great deal of technical research, property of large value, and a long, determined contest, for which the fees were in proportion. The system of survey or lack of system was provocative of litigation. Patents for adjoining lands almost invariably showed a portion of the contiguous territory granted to both parties. The older patent established its owner's claim, but there arose an endless number of fine discriminations as to the settlement of the " lap," etc., etc. Much of the land in the county was originally patented by wealthy men, who fought opposing claims with great pertinacity, and some cases were continued for years, until the death of all the heirs closed the case. An account of the various litigations between Azariah Davis and Maj. John Gray would alone make a respectable volume, and these have been finally laid to rest only within a few years past. The statute of limitations, however, has long since taken this class of litigation entirely out of the courts. Slavery also contributed a class of. cases similar to the land question in the character of the contests involved. A child was often given a slave which would be placed in trust. On coming to his or her majority, the natural increase or ac-cumulation of wages would amount to a large sum, which the trustee was often unwilling to surrender. A case occurred in Todd County where a girl was given by her grandfather a female slave, who was placed with the grantee's father. The gift was lost sight of or unknown, and no claim was made for her property until some time after her marriage, when the fact of gift was established. Suit was brought for the recovery of some thirty slaves, the natural increase of the original gift, involving a large value. The complications of such a suit together with the large value at stake, entitled the successful attorney to a large fee, which was demanded and received. But the "logic of events " has closed all these cases. Criminal practice has never been large nor profitable in Todd County, but even this class of practice has felt the reducing influence of later political changes. The class of criminals are not now such as can pay large fees, and are generally defended at State expense. Perhaps no lawyer at the Todd County bar to-day finds the income from his practice sufficient for his ordinary expenses; all have business of quite as profitable a character in addition to their profession. The situation is strongly suggestive of that warning of the latter day, mentioned by Holmes: "When lawyers take (of necessity) what they would give." There have been but few cases, if any, in the county that have been even a "nine days' wonder." The contest over the will of Lycurgus Leavell, in which certain slaves were freed, and his property, amounting to some $150,000 bequeathed-to his children by slave women, is perhaps the most celebrated. His relatives contested the will upon the remarkable ground that the testator was too morally depraved to make a proper and legal will. If such a plea is good in law, the evidence went very far to show the incompetency of the deceased, but after being tossed about in the courts for some twenty years, the will was sustained. A' large part of the property was dissipated, however, by the administrator, and in the final settlement his securities suffered heavily. The Graves estate of some $75,000 was another case that involved considerable controversy and expense. There have been but three judicial hangings in Todd County, and these were of Negroes. One of these was for attempt to rape a white woman. He was hanged solely on the woman's identification, which was of such a character as to lead all candid minds to believe that she was mistaken. However, in the excited state of the public, the jury thought it was sufficient, and declared him guilty. The others were for murder, the one of a fellow slave, and the other of his master. It is not to be inferred that this includes the whole list of murders in the county. A complete list of these would be a longer and sadder list. Violent altercations have been frequent, and have too often been attended with fatal results. The changed relations of the white and black races have been provocative of some fatal encounters. About 1876 there was a short reign of the KuKlux spirit. The Negroes taking advantage of their new found liberty, began to find homes in quarters that were distasteful to certain of the whites. A secret organization of night marauders was formed, numerous Negroes were cruelly whipped, from the effects of which some died, and others were shot. This sort of thing could not be tolerated by the law-and-order portion of the community, and a posse of some thirty or forty armed citizens, headed by the Sheriff, arrested certain parties engaged in this crime, and under the "KuKlux Act " of the Legislature, sent some five or six to the penitentiary. This summary action put a sudden and complete stop to the nefarious business.

The administration of Lynch law has found general denouncement among the older and solid citizens of this county, but there have been timeswhen the ordinary course of justice has seemed inadequate to mete out the merited punishment to vicious criminals. In the early history of the county a band of horse-thieves infested the hilly country of this, Christian and Muhlenburg Counties, the operations of which became so bold and annoying that a general vigilance committee was formed of citizens in the three counties, and an end put to the gang. Several of them were killed in Todd County, but the chief scenes of this tragedy were in Christian and Muhlenburg Counties, an account of which will be found in them chapters on Christian County in this volume. A second vigilance committee sprang into temporary existence in 1882. A Negro killed and out-raged a white woman of the county. The crime was fixed upon the perpetrator, who was arrested, but while in the hands of the officers was taken by a crowd of infuriated neighbors and summarily dealt with. Led aside, his body was riddled with bullets, his head severed from it, and the trunk burned to ashes. The head was then placed upon a pole, and shot to pieces. The punishment, scarcely less barbarous than the crime, was somewhat palliated by the nature of the outrage; but such proceedings cannot be tolerated in any community with impunity. Within the past month (April, 1884), a third mob visited the jail in the county seat to execute illegal vengeance upon a Negro who had made a nearly successful attempt to murder a white man who had ended a controversy by knocking the Negro down. He had just been apprehended when word came to the authorities that it was intended to mete out summary justice at the hands of a mob. The County Judge at once issued an order for the removal to Russellville of the prisoner, who had been out of town but a few hours when the mob arrived. Finding their purpose foiled by the promptness of the officials, the mob quietly returned, and the county was saved a further addition to this unfortunate record. The demoralizing tendency of the free use of fire-arms is felt in Todd County as elsewhere in the State of Kentucky. Up to about 1840, while every man was trained to the use of the rifle and the hunting-knife, their use in personal encounters was forbidden by the unwritten law of the community. Since that time the knife and pistol have gradually grown into general use, until now scarcely one of that class to whom the possession is peculiarly dangerous is without them. This change in public sentiment, united with a degenerate spirit of chivalry which counts it more honorable to redress certain personal injuries by violence rather than law, gilds the ruffian with the romance of the knight, and makes ruffianism respectable. The responsibility for this state of things is with public sentiment, and not with the law. Stringent enactments against the carrying of concealed weapons, and for the punishment of crime, are found in the law of the land, and the courts give force to the penalties prescribed with commendable impartiality, but the people fail in their part. A long list of murders, shocking to every sentiment of justice, degrading to every feeling of true chivalry, and wholly demoralizing in their effect, could be compiled from the annals of Todd County. And yet, not one has been adequately punished by law, and few have received any attempted punishment. It would be unjust to the solid, law-abiding portion of the community to leave the impression that this state of facts existed without any protest on their part, or even that the lawless element counted a majority of the citizens of Todd County in its ranks. But this statement of the problem, which is undoubtedly correct, adds to the difficulty of its solution. Candid men everywhere ac-knowledge the existence, deplore the obvious tendency, and invoke the rigid enforcement of the law against this order of things, but it all ends in this and nothing more. These very men are unconsciously the great sup-porters of the evil they honestly deplore. Society throughout the State is imbued with an abnormal distaste for physical cowardice, which over-shadows all moral or material considerations. To this barbarous sentiment there is a growing protest, which in time will effect a correction in this moral perspective, but not before the blood of its martyrs shall have sprung into full fruition. The recent tragedy at Mt. Sterling has brought the moral forces of society face to face with its responsibilities. A moral hero, the peer of any knight who gathered about King Arthur's table, or crossed a lance on the fields of Cressy or of the " Cloth of Gold,'' died for the emancipation of his fellow-citizens from the bonds of this latter-day chivalry. Every citizen who subscribes to the unwritten law of personal redress, shares in his " damnable taking off." Enlightened conscience repelled the demands of this social sentiment, but reason tottering from its throne, madly paid homage to the barbarous instinct, and sought to escape moral turpitude and social disgrace through the portals of his own life. In his, like great Caesar's death-" Then I, and you, and all of us, fell down." But in the hour of a tragedy like this, the broad shadow of which covered the whole Commonwealth, how strong was the sentiment that slew him. His cause had no avowed champion. Apologists were numerous, whose best attempt was but to "damn with faint praise, assent with civil leer." But Judge Reid did not die in vain. His protest has already been taken up by the living, and the sentiment will grow, spreading from Christian homes to Legislative halls, until the moral shall overtop the physical characteristics of the Knight of the nineteenth century.

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