The Kansas herald of freedom. [volume] (Wakarusa, Kan. Territory) 1854-1860, 1859-07-02
49, = va ~ 1.lsH &c..
For tie Herald Of Frssdo,
Kansas Legislation.
LAwREEcE, june % ,,


1853, have been taking a glance a, n.
contents of the book, and find that tb.,,
is now no Probate Court in Kansas, RIM,
the LIST day of June. 1859. See statp,.,
of 1859, page b44. Section first reDe,l,
al laws passed prior to the LIST of Janp,
~, 1857. The Act establishing the Pm.
bate Courts, and defining its Jurisdiction
was passed in September, 1855, and the,s
has been no law passed on that subi.s
since that time, and since the first day NJ
this month there has been none in e,;,
tence, SO that we are where we were nrs
vious to any legislation on the subject
Bnt, says one, the Organic Act provide,
for Probate Courts, and the Legislatu,,
having adopted the common law of Euy.
land, also authorizes it. The common
lar defines its jurisdiction, and the
judges can proceed under the common
law, in the transactions Of probate bu,i.
ness. Now it happens that probate br.
ness proper, was not transacted by
common law court; but by the Court
Christian, or Ecclesiastical Courts, and
they were not governed by the rules Of
the common law, but the canon or civil
law Of Rome. See Blsckstones com.
mentaries, vol. 2, page 4S0, chapter
xxi, for the history of the rise and
progress of Probate Courts, and the laws
that governed them. Probate Courts
exercise the same functions in this coup.
try that the ordinary does in England, so
that our Legislature, not having adopted
the Canon or eicI lac of Rome, We
have no Probate Courts in Kansas.
Another change l notice in the erimi.
nal code, sect. III, page 2oS. Whether
it will promote the ends of justice or no,
| am unable to determine; but it is at
least an infringement on the old rules Of
the common law. That barbarous code,
gave prisoner on trial for a felony, thr.
ty-five peremptory challenges, while the
king had none at common law; the preser;
English law gives the prisoner twenty four
peremptory challenges ip case of murder,
and nearly every State in the Union gives
prisoner from twenty to twenty-four
challenges in all capital cases, and con.
fines the State to three or four challenges;
in all civilized countries, the prisoner has
FIVE challenges to the prosecutors one
In progressive Kansas, the ratio is two to
one, or the prisoner FIVE in all cases, and
the Territory six, so that hereafter 4 poor
devil will have hard chance for his life
that is charged with felony.
Third. Our statute is pretty severe on
certain class of young men that have a
weakness for marrying their first cousins,
and keeping the money in the family ;
the punishment is .Jiae aud imprisonment
from 500 to $1,000, and from three
months to FIVE years, imprisonment.
Another matter would call the atten.
ton of the legal profession to, is the Omis.
sion of the legislature or Codifying Com,
mittee, to put in a saving clause in the
repeal of the chapters on crimes and pun
ishment and practice in criminal cases
Although my friend Lowman, one of thu
commissioners, has labored in lat'
number of the HERALD to convince tht
people of Kansas, that there was no mis-
take about it, and that the chapter in th,
laws of 1859, adopting the common Law
of England covered the case yet be-
leave TO differ with my friend Lowman
in the proper construction of that law
Blackstone says tina. there are three point
to be considered in the construction 0
all remedial statutes the old law, tn
mischief aud the remedy that is, how
the common law stood at the making o
the Act, what was the mischief, AM
what remedy the Legislature intend t
effect.
The old rule as laid down by Black
stone, was that when law repeating
former law was itself repealed, the oil
law was revived. 1t was TO prever
this construction, that the law of lS5
was passed, Of which the Act of 1859
an exact copy. The Act of 1859 wa
approved Feb. 11th, 1859, but no tim
mentioned when it would take effect
But admitting that the next session h'
any force or validity, it could only tax
affect from the end of the session or III
day of its approval. This could no
effect the criminal laws of 1865, for the
were not then repealed at its passage, nc
! for three months after. Their repeal too
effect the lst OF June. When the ne'
law took effect, it is clear to mind, thn
the effect Of the omission 10 pass say
ing clause, will operate as general ia
delivery throughout the Territory.
| / am satisfied there is no precedent t
be found Of the singular phepomena Of
body of men pretending to have commo
sense and sitting as legislative body
going through the childish farce Of re
pealing body of laws, and the same da
enacting the same identical laws withou
the dotting Of an or crossing OF a t, o
like the Bible sent to the heather "with
out note or comment" If find time,
may point out in future number of tn
HERALD. some more Of the beauties
Kansas legislation. CHRISTIAN.
Forfts Herald Of Freedom.