The Progressive Judicial System
The judicial system of Kentucky functions continuously, at modest and grand levels, and sets the course of Kentucky life and governance as profoundly as any other institution.1 On the face of it, the judiciary is established for apparently mundane purposes--to determine the outcomes of disputes between individuals and companies, to establish the innocence or guilt of persons accused of crimes, and to direct the administration of trusts and guardianships. Adjudications in these three areas (civil, criminal, and probate) are based on the Kentucky Constitution and statutes, and on the common law. The latter is a set of judicial precedents (beginning as far back as pre-Revolutionary England) developed by courts to help organize society where legislatures and constitution writers had not acted. As this chapter demonstrates, Kentucky courts have often settled (and have sometimes been the focus of) Kentucky's grandest conflicts, and they have often allowed (and have sometimes been the cause of) some of Kentucky's deepest changes. They have been central to Kentucky's political process from the beginning.
In prestatehood Kentucky, although the Kentucky County of Virginia had a system of "lower" courts, all major matters--capital crimes on the criminal side and land titles on the civil side--could be determined only in Virginia proper. Most lower-level judgments could also be appealed to the Virginia tribunals.2
Upon statehood, Kentucky began its long history of developing its own judicial system. It initially faced all the problems of structure and policy that it still faces today. How much control should other politicians and the voters