CHAP. VI. Legislative proceedings-Penitentiary established-Reflections on it-Other acts of a public nature--State of affairs with France, and return of Pinkney and Marshall-effect in the United States-Opinions in Kentucky-The general election--Expression of public sentiment for and against Convention-Acts of congress called, the alien and sedition laws--Governor's specch--Breckenridge's resolu tions, and other proceedings, &c. &c. [1798.] THE January session of 1798, will be memorable in the history of amelioration and reform in the legislation of Kentucky. The sentiment upon which that reform is predicated, had manifested itself and been spreading by insensible degrees among the people of the country, for some years. It was a sentiment of humanity, combined with liberality, which induced different philosophers, half a century before, to turn their eyes on the penal code of Europe and America; induced so to do by observations on its effects, which were but too sanguinary; and much the same in all parts of Christendom: having for its object, the annihilation, rather than the reformation, of the offender. Being by various writers taxed with impolicy, as well as with cruelty; it was proposed to be mitigated, by a system of reform, founded upon the principle, of proportioning punishments to their relative crimes. Of all those who took up the pen on this interesting subject, none handled it with a more truly philisophic spirit, than the Marquis of Bacaria; whose book on crimes and punishments, not only enlightened his own country, but extending its benign rays throughout the civilized world, became the first, it is believed, to make converts in the United States; where its principles have in a manner become predominant. It was at this session that Kentucky adopted them, in an act entitled "An act to amend the penal laws of this commonwealth." Out of which grew the penitentiary system. The penal code of every country, is doubtless, of the greatest importance to the peace, good order, and security, of the community; and also to the safety of individual life, liberty, and property. The danger of relaxing old laws, and established customs, is, of going into the opposite extremes. This was obviously the case in Kentucky. It was not deemed sufficient, to substitute the penitentiary for the gallows; but it seemed as if it was intended to diminish the horror of committing some of the most atrocious crimes, such as, rape, and house burning, by reducing their punishment to confinement and labour-while nothing but murder in the first degree, was to be punished with death. This was not all; the punishments prescribed were so moderate, as at once to render them tolerable in the mind of every man who had not higher motives than the fear of punishment, to guard him against the perpetration of crime. Even high treason, might be expiated by six years confinement-nor could its punishment be extended, to more than twelve years. Murder in the first degree, was defined and limited, to a few particular species of that crime; and all other kinds of homicide were reduced to offences punishable in the penitentiary, for not less than five, nor more than eighteen years. Rape, could be atoned for by four years confinement; which might at the discretion of the jury, be extended to twentyone years. Horse stealing, was punishable by confinement from two, to five years. Grand larceny, the theft of any sum over four dollars was punished by confinement from one, to three years. Petit larceny, might seclude the culprit, from six months to a year. These are specimens. It is believed, that the system, although, erected upon correct principles, has mistaken, as to the higher crimes especially, both the justice, and the policy of punishment; and that the effect has been of a highly demoralizing tendency. The misfortune is, that in popular government, when publie sentiment is once corrupted, there is nothing to recover it, or bring it back to a just standard; for every energy of the go verning power becomes involved, and are moved, in the same vortex. While one species of relaxation contributes to another, as the lesser, run into the larger, streams. The penitentiary was established, and has been built at the seat of government; where it is employed in the experiment of reclaiming adult culprits; who live in the society of each other; work moderately; are very decently clothed; abundantly fed upon wholesome coarse diet; and lodged on straw, with cover ing. Upon the whole, there is no doubt, that these penitentiary convicts, are better accommodated, than the army of the revolution very frequently were, for months at a time. And during the administration of the present governor, it was formally proposed, in one of his communications, that they should be educated, and further accommodated, at the public expense. Thus merging the detestation of crime, and the dread of punishment, in the sentiment of commisseration; not less fallacious in theory, than pernicious in its effects, upon the moral feelings and habits of the people. This act, however, like most others of a continuing kind, has undergone various amendments, hereafter to be noticed. An act to speed poor persons in their suits, seems not unworthy of observation, for its benevolence. It provided, in effect, that if any person having cause of suit or action, should present himself, or herself, before a court, having jurisdiction over the subject, and satisfy such court. that he, or she, was not able, from poverty, to institute and prosecute such suit, or cause of action, that it hence became the duty of the court to assign counsel to such poor person; and also the duty of the officers of the court, to issue process, and to execute it, each in his department, free of costs. It appearing that persons going into the northwestern ter ritory, or into the state of Tennessee, to practice law, were required to become residents for a year previous to commencing business--the legislature acting upon the principle of reciprocity, required of persons coming from either of those places, before they could be admitted to practice as an attor ney, in any court, that he should first become a citizen, reside twelve months in the state, and then procure a license in due form of law; subject to a penalty of fifty pounds for each of fence, by breach of the law. The several acts relative to the annual salaries of the civil officers of government, were reduced into one; and (payable quarterly) arranged in the following manner, viz: To the governor, or chief magistrate, 4001. To the judges of the court of appeals, each 2001. To the treasurer, 2501. To the auditor, 2501. To the attorney general, 1001. To the attornies of districts, each, 301. The justices of quarter session courts, were each to receive twelve shillings for every day they attended court. The constitutionality of the act of this session, giving a representation of one member to the county of Garrard, and two to the county of Madison, is not perceived. The reverse seems obvious, when it is compared with the sixth section of the first article of the constitution; which determines the apportionment, and consequently the number of representatives, among the several counties, shall take place by law, at quar tennial periods: which of necessity, excludes all such partial acts of legislation, as that alluded to above. Three acts were passed, authorizing as many wives, to sue their husbands for divorces, and on the alleged fact, of desertion, being found by a jury, the court was authorized to pronounce them respectively, divorced. The Bethel academy, was established by an act of this session: it was placed under the direction of trustees, who were incorporated with ample powers, for its government; with the additional faculty of receiving by donation, purchase, or otherwise, lands, goods, or money, to any amount whatever. Mason county was divided; whence proceeded the county of Fleming, to have effect from and after the 1st day of March, G* VOL. U. 1798; to be designated, and bounded in the following manner, to wit: "Run a line south from the court house of Mason county, to the north fork of Licking, thence up the north fork nine miles when reduced to a straight line; at this point make the beginning; thence a straight line to the mouth of the Flat fork of Johnson; thence to the mouth of Fleming a straight line, unless it strikes Fleming, in that case down Fleming to the mouth, and up Licking to the head thereof, and with the line of Montgomery county to the Virginia line; thence with said line to that branch of Sandy, which divides this state from the state of Virginia; thence down the said branch until it intersects a line drawn from the beginning as follows, to wit: from the beginning up the north fork to the head of the south fork thereof; thence with the dividing ridge between the waters of Licking and Ohio until it strikes the waters of Sandy, thence down such branch east to Sandy." An act to amend and revise the act entitled "An act for encouraging and granting relief to settlers," passed, to bring into one view, the provisions of an act of the last year which had been mistaken, or abused; or fell short of its object. It was therefore enacted, that any widow or any free male person above the age of eighteen years, and every free person having a family, who shall have settled, or who may settle himself or herself on any vacant land, on the south side of Green river, on or before the first day of July next, clear and fence two acres of land, and tend the same in corn, shall be entitled to two, and not less than one hundred acres of land, to include the settlement in any part of the survey, as expressed in the entry. Commissioners to be appointed to adjust the claims. The price of first rate land was set at sixty dollars per hundred and inferior lands, at forty dollars, for the like quantity; to be paid within one year, subject to a forfeiture of the land, in case of failure. Many provisions and details relative to this and the former act, were introduced; and which have furnished subjects for a whole system of legislation, from that time to this, nor can any man tell when it will end; as already men tioned. acres; |