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Slavery in its more economic
form naturally spread to the Kentucky district as the western frontier of
Virginia became settled. Of the 293,427 slaves which were held in the State
of Virginia in the year 1790, however, only 11,830 were in the district of
Kentucky, which at that time had a total population of 73,077. Few thought,
however, of disputing the rights of the institution in the newly created
State. The final convention which met to form a constitution was held at
Danville, beginning on April 2, 1792, and in the course of its proceedings
it was apparent that there was no fundamental division among the delegates
regarding any of the proposed provisions with the exception of the one
dealing with slavery. Virginia had stipulated in giving permission for the
formation of the new State that slavery as an established institution should
not be disturbed, and this policy had the support of a majority of the
members of the constitutional convention. George Nichols, a native of the
Old Dominion, was the leader of the assembly and had charge of most of the
work which was done and naturally was most interested in carrying out the
wishes of his native State in the formation of the new document. The only
serious opponent was David Rice, a noted Presbyterian minister, but, having
resigned on April 11, he was not present at the time when the slavery issue
came up for final settlement.
A separate vote was taken on
Article IX, the.slavery section, which passed 26 to 19. It was finally
provided that to prevent immigrants to this state, from bringing with them
such persons as are deemed slaves by the laws of any one of the United
States, so long as any person of the same age or description shall be
continued in slavery by the laws of this state: that they shall pass laws to
permit the owners of slaves to emancipate them, saving the rights of
creditors, and preventing them from becoming a charge to the county in which
they reside; they shall have full power to prevent slaves from being brought
into this state as merchandise; they shall have full power to prevent any
slave being brought into this state from a foreign country, and to prevent
those from being brought into this state, who have been since the first of
January, 1789, or may hereafter be imported into any of the United States
from a foreign country. And they shall have full power to pass such laws as
may be necessary to oblige the owners of slaves to treat them with humanity,
to provide for them necessary clothes and provisions, to abstain from all
injuries to them extending to life or limb, and in ease of their neglect or
refusal to comply with the directions of such laws, to have such slave or
slaves sold fur the benefit of their owner or owners.
In any discussion of the
slavery question in Kentucky in its historical aspects this article of the
first constitution is fundamental. It is evident that even at that early day
the difficulty of the slavery problem was already in the minds of the people
in spite of many other apparently more pressing issues. The article itself
remained practically intact throughout the existence of slavery in the
State. Were there ever in later years gathered within the confines of the
State anybody of men who had a better grasp of the future? The single
instance of the recommendation that the legislature should pass laws
permitting the emancipation of slaves only under the provision that they
should be guaranteed from becoming a public charge to the county shows the
comprehension of a difficulty that could not at such an early date have
developed to any great degree, but which in later decades was a formidable
problem. We may well say with John Mason Brown, however, that “the system of
slavery thus contemplated was designed to be as mild, as human, and as much
protected from traffic evils as possible, but it was to be emphatically
perpetual, for no emancipation could be had without the assent of each
particular owner of each individual slave.”
The session of the State
assembly which met in November, 1792, only attempted to carry out the
constitutional provision prohibiting commercial transactions with slaves. No
person was permitted to buy of, or sell to, any slave, any manner of thing
whatsoever without a written permit descriptive of the article under the
penalty of four times the value of the thing bought or sold. The
jurisdiction of such cases was given to the county court, if they concerned
values of more than five pounds. The slave was to receive ten lashes, which
by the standards of those days was a meager punishment for any offense.
Whenever possible the slave was not brought into consideration as an
offender. The theory seems to have been that the slave was better off when
left alone. It was only when some unscrupulous outsider came in to use the
slave either as a victim or as an object of profit that it was necessary to
draw the strings tighter on the Negro, not because of any inherent tendency
to crime so much as to keep the slave from becoming unruly when in the power
of a superior influence.
It was not until the session
of 1798 that the legislature drew up the fundamental slave code which was to
carry out all the recommendations of the constitutional convention and which
remained the basis of all legal action throughout the entire period of
slavery. Among the early acts of the State had been the temporary adoption
of the statutes of Virginia on the treatment of slaves and slavery problems,
which were then in force. These remained as a slave code for Kentucky until
the enactment in 1798 of these new laws, which contained forty-three
articles and involved almost every question that could come up for legal
consideration in connection with the institution. The experience of six
years as a separate State had served to show that many existing provisions
of the Virginia code were not readily adapted to the rapidly growing State,
and then too there was a decided tendency to ameliorate the condition of the
slave as much as possible. In Kentucky they were not then, at least,
confronted with such a large mass of slaves that they could not meet
problems in a much easier manner than in the Old Dominion.
In the beginning, it was
naturally found necessary to place some restrictions on the slave and his
movements. He was not allowed to leave his master’s plantation without
written permission and if he did go away, any person could apprehend the
offender and take him before a justice of the peace, who was empowered to
order the infliction of stripes at his discretion. Furthermore, he was not
to wander off to any other plantation without the written permission of his
owner, with the provision in this instance that he was not to be taken
before a justice of the peace, but before his owner, who was entitled to
inflict ten lashes upon the offender. Should the slave be found carrying any
powder, shot, a gun, club, or any weapon he could be apprehended by any free
person and taken before a justice and a much severer penalty exacted in the
form of thirty-nine lashes, “well laid on, on the bare back.” It is clear
that this law was drawn up to keep the slave from becoming a public menace
and not as a sign of absolute restriction on the servant, for it was further
provided in Section G that in case the slave lived in a frontier community
he could go to the local justice of the peace and secure a permit to keep
and use guns, powder, shot and other weapons for either offensive or
defensive purposes. This permission was to be indorsed by any free Negro,
mulatto or Indian and did not necessarily involve the approval of the owner
of the slave.
It was declared unlawful for
slaves to engage in riots, unlawful assemblies, in trespasses or in
seditious speech and, if so accused, they were to be taken before the local
justice who was to punish them at his discretion. But the Negroes themselves
were not to be considered as the only guilty ones. In order to prevent any
such disorderly meetings no owner of slaves was to be allowed to permit any
slave not belonging to him to remain on his plantation for more than four
hours at any one time under a nominal penalty to such owner of $2; but, if
he allowed more than five such slaves to assemble on his property, he was to
be fined more severely. If such a group were brought together by the written
permission of the owner and for business reasons, however, there was
involved no offense whatever.0 It was realized that oftentimes the chief
leaders in the unlawful meetings of slaves were free Negroes and sympathetic
whites. "Were any such to be found present they were to be arrested and if
found guilty when tried before a justice of the peace, should be fined 15
shillings, to be paid, not to the court, but to the informer and if the
money was not forthcoming the court was to have twenty lashes inflicted—no
matter whether the convicted be white or black. Inasmuch as the degree of
punishment of the slaves for being present at such a meeting was not
specified it would seem that the legislature meant that the free persons
involved should be treated more severely than slaves by the court.
The law of 1792 regarding
trading with slaves had not proved to be effective, for in many cases the
owner for a stipulated wage paid by the slave had permitted him to go at
large and engage in trade as if he were a free man. The legislature found
that this encouraged the slaves to commit thefts and engage in various evil
practices and naturally censured the owner. A fine of $50 was to be paid by
the master for each offending slave and no punishment whatever was to be
given the latter. But should the servant go so far as to hire himself out,
he would be imprisoned by order of the court and, at the next session of the
county court, he would be sold. One fourth of the money thus received was to
be applied to the county funds and 5 per cent was to be given to the sheriff
and the owner was to receive the remaining 70 per cent. Here too the slave
was not punished and his condition of servitude was not changed. It was
merely a change of owners. Again the offending owner was the victim and for
his carelessness he was deprived of 30 per cent of the money value of his
slave.
The leading Kentucky case
bearing on slaves engaged in trade is that of Bryant vs. Sheely (5 Dana,
530). Five of the main points are worth mentioning here:
1. To buy or receive anj’
article from a slave, without the consent of his master, in writing,
specifying the article, is a highly penal offense.
2. A sale made by a slave,
without such written consent, is void, and does not divest the master of his
property; he may sue for, and recover it; or he may waive his right to the
specific thing, affirm the sale, and recover the price or value, if it was
not paid to the slave.
3. A general permission to a
slave to go at large and trade for himself as a free man, is contrary to
public policy, and a violation of a penal statute. The owner or master of a
slave could maintain no action for any claim acquired by a slave while
acting under such illegal license.
4. But a slave may be
permitted by his master to buy or sell particular articles, and any form of
consent or permission given by the master, or his assent after the fact,
will give validity to the sale—though the purchaser may be liable to the
penalty, if the consent be not in writing.
5. A slave, being authorized
by his master to sell any particular thing, becomes the agent of his master
for that purpose; and from the authority to sell, an authority to transfer
the property, and to fix and receive the price must be inferred; but the
slave cannot exercise or receive an authority to maintain any action in
relation to it; the right of action for the price belongs to the master, and
if he sues, that fact itself is sufficient evidence that he authorized or
approved and confirmed the sale.
Unlike the more southerly
States, Kentucky did not leave the slave helpless in the courts. If a slave
were charged with a capital crime he was brought before the court of quarter
sessions, which was composed of the various county justices of the peace.
They were to constitute a court of over and terminer. But they alone were
not to decide the fate of the Negro, for the sheriff was required to empanel
a jury of twelve men from among the bystanders, who were to constitute the
trial jury. It was explicitly stated that legal evidence in such a case
would be the confession of the offender, the oath of one or more credible
witnesses, or such testimony of Negroes, mulattoes, or Indians as should
seem convincing to the court. When a slave was called upon to testify in
such a case, the court, the witness “not being a Christian,” found it
necessary to administer the following charge that he might be under the
greater obligation to declare the truth: “You are brought hither as a
witness, and by the direction of the law I am to tell you, before you give
your evidence, that you must tell the truth and nothing but the truth, and
that if it be found hereafter that you tell a lie, and give false testimony
in this matter, you must, for so doing, receive thirty-nine lashes on your
bare back, well laid on, at the common whipping post.”
Section 22 of the law of 1798
provided that the master or owner of any slave might appear in court at a
trial of his servant and “make what just defense he can for such slave.” The
only restriction was that such defense should not interfere with the form of
the trial. Naturally the liberally disposed slaveholders interpreted this to
mean that they could employ counsel to defend their Negroes and it remained
a disputed question down to 1806, when the legislature made the provisions
more specific. By this new law it was provided that it was not only the
privilege but the duty of the owner of a slave who was being prosecuted to
employ an attorney to defend him. The owner neglecting to do so the court
must assign counsel to defend the slave and the costs thereby incurred were
to be charged to the owner. The fee for defense was not to exceed $200 and
if not forthcoming the court was empowered to recover the amount in the
manner of any other debt of similar amount.
It was plainly the intention
of the legislature to provide a just trial for any slave, for they even went
so far as to enact that the lawyer appointed by the court for the prisoner
should “defend such slave as in cases of free persons prosecuted for felony
by the laws of this state.”
"When the slave was convicted
of an offense which was punishable by death but which was within the benefit
of clergy the capital penalty was not pronounced, but the offender was burnt
in the hand or inflicted with any other corporal penalty at the discretion
of the court. Should the criminal be sentenced to suffer death, thirty days
were to elapse before the execution, except where it was a case of
conspiracy, insurrection or rebellion. When the court had decided to
sentence the slave to the death penalty a valuation of the Negro was made.
This statement was to be turned over to the State auditor of public accounts
who was required to issue a warrant on the treasury for the amount in favor
of the owner of the convicted party. The owner on his part was to turn over
to the treasurer the certificate of the clerk of the court showing that the
slave had been condemned and the statement of the sheriff that the offender
had been executed or had died before execution.
This matter of the payment to
the owner of the value of the executed slave appears never to have been
questioned to any extent even by the abolitionists in the legislature until
the session of 1830 when a bill was introduced for the repeal of the law.
The bill was lost but in the course of the debate it was stated that while
Kentucky contained over 160,000 slaves only about one fifth of the
tax-paying whites were slaveholders and that $68,000 had already been paid
out of the State treasury as indemnity for slaves executed. After the defeat
of this bill there was offered a substitute which proposed that a tax of one
fourth of one per cent should be levied upon the value of all slaves in the
State for the creation of a fund out of which to make such disbursements,
but this was likewise lost.
Until 1811 there were no
special enactments on slave crimes and their punishments. The court had,
therefore, more or less range in the exactment of penalties but the
legislature of 1811 passed during the first fortnight of its session a
specific law governing slave crimes. Only four offenses were to be regarded
as punishable by death: (1) conspiracy and rebellion, (2) administering
poison with intent to kill, (3) voluntary manslaughter and (4) rape of a
white woman. If any slaves were to be found guilty of consulting or advising
the murder of any one, every such consultation was to constitute an offense
and be punishable by any number of stripes not exceeding one hundred.
As time went on the list of
capital crimes was increased as a natural result of the growth of the slave
population and their growing state of unrest after the incoming of the
antislavery propaganda. By the close of the slavery era in Kentucky there
were eleven offenses for which slaves should suffer death: (1) murder, (2)
arson, (3) rape of a white woman, (4) robbery, (5) burglary, (6) conspiracy,
(7) administering poison with intent to kill, (8) manslaughter, (9)
attempting to commit rape on a white woman, (10) shooting at a white person
with intent to kill, and (11) wounding a white person with intent to kill.
It will readily be seen that from a practical standpoint these eleven
offenses can be narrowed down to eight. The severity of the slave code can
be shown by comparison of the capital crimes for white persons at the same
time. These were four in number, (1) murder, (2) carnal abuse of a female
under ten years of age, (3) wilful burning of the penitentiary and (4) being
an accessory to the fact,
Virginia had early enacted
that slaves should be considered as real estate in the settlement of
inheritances. But the growing tendency to look upon the slaves in all things
else as personal chattels led to such legal and popular confusion that the
Virginia assembly often observed that they were “real estate in some
respects, personal in others, and both in others. Regardless of such legal
complexity it was not until 1793 that it was enacted that “all negro and
mulatto slaves in all courts of judicature shall be held and adjudged to be
personal estate.”
In drawing up the slave code
of 1798 Kentucky disregarded the legal experience of Virginia and her more
recent remedial legislation and enacted that “all negro, mulatto or Indian
slaves, in all courts of judicature and other places within this
commonwealth, shall be held, taken and adjudged to be real estate, and shall
descend to the heirs and widows of persons departing this life, as lands are
directed to descend.” It was further provided, however, that “all such
slaves shall be liable to the payment of debts, and may be taken by
execution for that end, as other chattels, or personal estate may be.”
Such a law coupled with the
legal precedents of Virginia served to intensify the mixed property
conception of the slave. The confusion, however, was purely legal, for
slaves were held in all other respects as personally; but in cases of
inheritance and the probation of wills the Kentucky Court of Appeals was
often called upon to define clearly the legal status of the Negro in
bondage. The first important decision was handed down in 182-4 in the case
of Chinn and wife vs. Respass, in which it was pointed out that while slaves
were by law made real estate for the purpose of descent and dower, yet they
had in law many of the attributes of personal estate. They would pass by a
nuncupative will, and lands would not; they could be limited n a grant or
devise no otherwise than personal chattels; and personal actions might be
brought to recover the possession of them.
It would perhaps be -well to
point out here the general common-law difference between the treatment of
real and personal estate in a will. The title of the personal property of
the deceased is vested in the executor and he holds it for the payment of
debts and distribution according to the will of the testator. On the other
hand the real estate vests in the devisees or heirs and does not go to the
administrator, unless by statute enactment, which was in part true in
Kentucky, in the case above, where the slaves, although real estate, were
held liable for the debts of their master.
Furthermore “they were in
their nature personal estate, being moveable property, and as such might
attend the person of the proprietor wherever he went; and in practice they
were so considered by the people in general.”
Conversely, the court was
often called upon to interpret the phrase “personal estate” in wills and
contracts, where it appeared without any other restrictive expression or
provision, and it consistently held that the term should be construed as
embracing slaves. Gradually the personal property conception began to secure
even legal precedence over that of real estate when the two interpretations
came into close conflict. This was accomplished by placing more stress on
the proviso in the original slave code, which placed slaves in the hands of
the administrator as assets for the payment of debts. This led to increasing
power for the executor who could even defeat the title of the heirs, though
the property may have been specifically devised. Hence it was not surprising
that in the Revised Statutes of 1852 it was provided that slaves should
thereafter be deemed and held as personal estate. Coming after all doubt of
the personalty of slaves had been removed by the decisions of the highest
tribunal in the State, this law meant little more than the repeal of the old
statute making slaves real estate.
The wonder is that Kentucky
should have chosen to hold to an antiquated legal conception for fifty years
after Virginia had proved its fallacy by her experience in the eighteenth
century. While it did little harm, it had few advantages. The existence of
the theory was chiefly noticeable in the frequent legal battles over
technicalities in the settlement of estates. In the popular mind slaves were
always considered personal property, and the spirit of the slave code itself
embodied that conception as regarded all things save the question of
inheritance.
With respect to the liberty
of the slaves the code of 1798 clearly shows that the existing type of
slavery was purely rural, for the restrictions on slaves concerned only the
plantation Negroes. Strictly understood, the slave was not to leave the farm
of his owner without a pass from his master, the main purpose being to keep
the Negroes from congregating on any one farm. Later when emissaries from
the North became unusually active the rights and privileges of the slaves
were further restricted. This change was due to the current belief that
these foreign individuals were bent upon stirring up strife among the slaves
and inciting them to insurrection. Once started such a scheme would have
resulted in anarchy especially in the towns. The real curbing provisions
were not started until along in the thirties when these outside forces had
begun to make their appearance in the urban communities.
In some parts of the State
were instituted mounted patrols, who went about at night and watched the
movement of slaves. They were to apprehend any servant who was caught away
from his home plantation without a pass from his master.18 Such an
institution was based on good Negro psychology, for his fear of the spirits
of night was well known. Citizens of that time have told us many tales of
the dread which the slave had of meeting these night raiders whom they
termed “patter-rollers” and how they came to sing of them in true Negro
fashion:
Over the fence and through the paster,
Run, nigger, run, oh, run a little faster,
Run, nigger, run,
The patter-roller keteh you.
Such a system of county
patrols did not prove to be sufficient as the slave population grew and the
towns became larger and more attractive to the country slave. The
legislature of 1834 in drawing up a law concerning tavern keepers had this
problem clearly in mind when they provided that no person should sell, give
or loan any spirituous liquors to slaves, other than his own, under a
penalty of $10 for each offense. Furthermore, if the offender was a licensed
liquor dealer, he should have his license taken away from him for the term
of two years. That even this measure did not prove effective enough to curb
the evil of Negroes congregating in the towns is shown by the further
provision passed March 6, 1850, to increase the fine to $50 for each
offense. A still further extension was that of February 27, 1850, which
provided that free Negroes were to be included in the restriction unless
they presented a certificate from “some white person of respectable
character.” No slaves or free Negroes were to be employed in the selling or
distribution of liquor nor were they to be allowed to visit or even loaf
around any place where intoxicants were kept for sale. The session of 1858
made the force of the law more explicit by defining very clearly the
jurisdiction in such cases.
Not only the State
authorities but the towns as well were active in the measures adopted to
meet the growing problem. The best available sample of the many provisions
which the town councils drew up is this one which was passed by the trustees
of Henderson in 1840:
It shall be and is hereby
made, the duty of the Town Sergeant or either of his assistants, to punish
with any number of lashes not exceeding ten, all or any negro slave or
slaves who may be found in any grog shop, grocery or other place where
spirituous liquors are retailed in said town, or who may be found on the
streets of said town after ten o’clock at night, unless it shall appear to
the said Town Sergeant, or assistant, that said negro slave or slaves, are
acting under the orders of his, her or their master or mistress, and it
shall further be the duty of the Town Sergeant, or either of his assistants,
to enter into any grog shop, grocery or other place where spirituous liquors
are retailed, in said town, whenever he shall be informed that any negro
slave or slaves are collected therein. Provided, said Town Sergeant, or
assistant, can enter the same peaceably and without force.
This town regulation offers
perhaps another proof of the oft-repeated statement regarding the slave laws
of Kentucky that while they appeared severe on the statute books they were
always mild in the enforcement. The regulation of the movement of slaves in
the towns was always subject to the local conditions. Beginning about 1850
there was a growing feeling in some of the more thickly populated sections
of the State that the type of Negro slave who sought to frequent the village
saloons would sooner or later start an insurrection. But no such uprising
ever occurred and the fear of such seems to have been due to the current
animosity towards the activities of the abolitionists, which was prevalent
throughout the State.
In the course of time it was
considered necessary to treat more seriously also the importation of slaves.
The advisability of preventing the importation of bondmen had been foreseen
in Kentucky from the experience of the mother State of Virginia which had
enacted a stringent law in 1778 imposing a penalty of one thousand pounds
and the forfeiture of the slave upon the importer of any into that
commonwealth. The ninth article of the Kentucky Constitution of 1792 had
provided that the legislature “shall have full power to prevent slaves being
brought into this commonwealth as merchandise; they shall have full power to
prevent any slave being brought into this state from a foreign country, and
to prevent those from being brought into this state, who have been since the
first of January, 1789, or may hereafter be imported into any of the United
States from a foreign country.”
The session of the State
assembly in 1794 drew up a law concerning the importation and emancipation
of slaves but it was largely a mere modification of the law of the State of
Virginia. It was not until the adoption of the slave code of 1798 that the
question was firmly settled by a more definite statement. By article 25 of
that act it was provided “that no slave or slaves shall be imported into
this state from any foreign country, nor shall any slave who has been
imported into the United States from any foreign country since the first day
of January, 1789, or may hereafter be imported into the United States from
any foreign country under the penalty of $300.
This was merely carrying out
the provisions of the constitution. Section 20 provided that no slave or
slaves shall be imported into this state as merchandise, and any person
offending herein, shall frofeit and pay the sum of $300 for each slave so
imported, to be recovered by action of debt or information, in any court
having cognizance of the same, one half to the prosecutor, the other half to
the use of the commonwealth.” More significant was the proviso that “this
act shall not extend to prevent any citizen of this state bringing for his
own use, provided, they have not been brought into the United States from
any foreign country since January 1, 1789; nor shall it be construed to
prevent persons emigrating to this state bringing their slaves with them,
but either a citizen of this state or persons emigrating to this state may
bring slaves not prohibited by this act.”
An act of 1814 amended the
above by prohibiting the importation of slaves by any of the emigrants if
they did not intend to settle in Kentucky.26 An attempt was made by a law of
February 8, 1815, to remedy some of the defects which had been found. The
legal penalty for importation was increased to $600 for each slave imported
and a fine of $200 was added for every person buying or selling such slave.
No indictment was to be subject to a shorter limitation than five years and
once so accused no person was to be discharged or acquitted unless he could
produce evidence to show that within sixty days of his arrival in Kentucky
he had deposited the following oath, duly signed, in the county clerk’s
office where he resides: “I,.................., do swear that my removal to
the state of Kentucky was with the intention of becoming a citizen thereof,
and that I have brought no slave or slaves to this state, with the intention
of selling them.”
It is evident from all
contemporary discussions of the question of importation that it was the firm
conviction that in order to do justice to the slave and the institution as a
whole within the State it was necessary to prevent the infusion of any
foreign slave element. Once such a policy had been carried out to a
successful conclusion, they would have been confronted only with a purely
domestic type of slavery and its increase. With such an ideal condition, for
those times, the institution eventually would have been easily handled. But
these early lawmakers, while no doubt honest in their intentions, did not
have the wisdom that was tempered with experience, and the unscrupulous
slave traders found further defects in the law and took advantage of them. A
careful examination of the law of 1794, the codification of 1798, and the
amendments of 1814 and 1815 will show that the whole theory of
non-importation is summed up in the word intent. It was the intent with
which the slaves were introduced, and to this alone the penalty attached.
They were not to be imported as merchandise but every citizen could import
slaves for his own use. Once these slaves were within the State there was no
penalty provided if they were sold. There was nothing to prevent a man from
selling what slaves he had imported and later going without the confines of
the State and bringing in more. If he were brought before the court, he
would claim that he had not intended to sell them when they were brought in,
and no one could place a penalty on his intentions. It seems that there were
other violators of the spirit of the law, who never sold any of the slaves
but brought them into the State in large numbers and then hired them out for
such long terms as 99 years. The fundamental idea of the law had been to
place a curb on the increase of the slave population by importation and
these acts were in direct opposition to the intention of the enactments
An index of the inefficiency
of the existing provisions regarding importation can be found in the figures
on the growth of the slave population during this period when it is borne in
mind that legally slaves could not be imported, except for personal use,
after the year 1794. The slave population in 1790 had been 11,830 and by
1800 had increased to 40,343 or at the rate of 241.02 per cent; in 1810
there were 80,551 slaves or an increase of 99.69 per cent , in 1820 there
were 126,732, a gain of 57.31 per cent; and by 1830 they had increased 30.36
per cent to a total of 165,213. During the same period there was a great
increase in the white population but it was always from 20 per cent to 40
per cent below that of the slaves. It appears that the law prohibiting
importation was not as effective as it should have been. While none of the
statesmen appear to have figured from the statistical viewpoint there was no
end of discussion regarding the necessity of extending the law to include
more than the question of intent at the time of importation.
The avowed resolution of
Kentucky to deal with the slavery question in the most humane manner and to
stop any unscrupulous dealing in slaves for the mere sake of profit is
nowhere more clearly shown than in the firm action which was taken not only
in the court room but in the legislative halls when it was found that
advantage had been taken of the letter of the law at the expense of its
spirit. On February 2, 1833, the legislature passed a law prohibiting all
importation of slaves even for personal use. The only exception provided in
this case was that emigrants were allowed to bring in slaves, if they took
the oath that had been provided in the law of 1815. The evil mentioned above
brought about by hiring slaves for excessively long terms was prohibited by
declaring illegal any contract which extended beyond one year and exacting a
penalty of $600 for each offense. This law of 1833 was destined to be the
crux of many a heated argument for the remainder of the slavery period. Many
a candidate for office during the next thirty years rose to victory or fell
in defeat because of his position with regard to this one statute of the
State. It was the briefest of all the enactments on the slavery question but
it was by far the most important and far-reaching provision that the
legislature ever enacted in connection with the institution.
It is noticeable that this
measure was not brought about in any sense by the activities of the
abolitionists, for they had not at that time made their appearance in the
State. It was an honest endeavor on the part of the native population,
slaveholding as well as non-slaveholding, to carry out the spirit of their
State constitution which had been adopted back in 1702. Thomas F. Marshall,
who later was the leader of the Lexington group which removed Cassius M.
Clay’s True American to Cincinnati, has borne testimony to the fact that the
slaveholding element voted for the law of 1833. “At the time of the passage
of this law,” said he, “the sect known by the title of ‘ abolitionists *had
not made their appearance. And, as I was sworn then upon the constitution of
my country, by all the obligations of that oath, I affirm now that I do not
believe that the principles and designs ascribed to that party were in the
contemplation of any human being who voted for the law. I was myself not
only never an abolitionist, but never an emancipationist upon any plan which
I ever heard proposed.”
But the question was not
settled for all time, for with the coming of the abolitionist element there
was a general tendency throughout the State to enact stricter laws governing
slaves. Many who had voted for the enactment began to cry for a repeal of
the law, but it was not until the session of 1841 that it was seriously
debated in the general assembly.
29 Section 1 of the law 1S33
read: “Each and every person or persons who shall hereafter import into this
state any slave or slaves, or who shall sell or buy, or contract for the
sale or purchase, for a longer term than one year, of the service of any
such slave or slaves, knowing the same to have been imported, shall forfeit
and pay $600 for each slave so imported, sold, or bought, or whose service
has been so contracted for; recoverable by indictment of a grand jury or any
action of debt, in the name of the Commonwealth in any circuit court, where
the offenders may be found.” Session Laws, 1833, pp. 25S-261.
Then after a long and ardent
discussion in the House of Representatives a vote was taken on the ninth of
January— with 34 in favor of the repeal and 53 against it. Never within the
previous decade had a bill before the House produced such popular interest.
It came up in the Senate at the session of 1843 but after another warm
debate it failed by a vote of 14 to 21. Sentiment for the repeal continued
to grow and in 1849 the law was amended so as “no longer to prohibit persons
from purchasing and bringing into the State slaves for their own use.” This
changed the situation back to what it was before 1833, for it will be
recalled that the main feature of the law of 1833 compared with that of 1815
was the prohibition of importation even for personal use. It could easily
have been predicted that sueli an amendment would pass, for the legislature
of 1847 had passed 27 distinct resolutions granting to as many individuals
the right to import slaves for personal use. The session of 1848 made 24
similar provisions.
This apparently radical swing
towards the side of the slave owner in 1849 was more than likely brought
about by the very intense campaign which was carried on by the
emancipationists. Such a movement served to unite the slave forces against
any attack upon the institution. This tendency was shown not only in the
halls of the State legislature but in the constitutional convention which
met later in the same year. Although the abolitionists had looked forward to
some advanced constitutional provisions on emancipation and the inclusion of
the law of 1833 in the organic law of the State they were astounded to be
met with the virtual repeal of that statute by the legislature. On the other
hand the constitutional convention not only rejected bodily all the reform
measures but added to the Bill of Rights this extraordinary amendment: “The
right of property is before and higher than any constitutional sanction, and
the right of the owner of a slave to such slave and its increase is the same
and as inviolable as the right of the owner of any property whatsoever.”
The slave trader once more
had the courage to appear in the State. Richard Henry Collins in an
editorial in the Maysville Eagle, November 6, 1849, gives us some vivid
evidence of the effect which the repeal of the law of 1833 had had in a few
weeks’ time. “A remarkably forcible and practical argument in favor of
incorporating the negro law of 1833 into the new constitution reached this
city in bodily shape on Sunday, per the steamer Herman from Charleston,
Virginia. Forty-four negroes—men, women and children —of whom seventeen men
had handcuffs on one hand and were chained together, two and two, passed
through this city for the interior of the State, under charge of two regular
traders. W e opine that few who saw the spectacle would hereafter say aught
against the readoption of the anti-importation act of 1833.” Such scenes as
this were the result of the passage of an innocent looking measure which
allowed citizens to import slaves for their own use, but which could really
be made to include almost any influx of slaves,
No further change in the
importation laws was made until the crisis immediately preceding the Civil
War, when practically all opposition was removed and the law of 1833 was
abolished in its entirety.33 Explanations of the sudden turn of mind are not
hard to find for the enactment was passed amid the turmoil and chaos brought
on by an impending war and the radical slaveholders found it easy to get
votes for their side in a last vain endeavor to save the institution, not so
much from an economic standpoint as from a matter of principle. The last
chapter in the legal history of the importation problem in Kentucky,
however, had not yet been written. After three years of the armed conflict
between the North and the South, Kentucky, which had remained loyal to the
Union and fought against the slave power of the South, reenacted on February
2, 1864, the old law of 1798 on the prohibition of the importation of
slaves.34 The wording was somewhat different, but the essential provisions
were the same. Coming at such a time, it never had any significance in the
slavery problem in the State, but it is interesting as one of the last vain
efforts of the institution before it was mustered out of the State by an
amendment to the federal constitution, which was passed without the assent
of the State legislature of Kentucky.
No less serious than the
question of importation was the problem of the fugitive slave. This has been
treated many times and every discussion of it has involved much of what
transpired in Kentucky or on its borders. It is not the purpose here to
repeat any of that story because it belongs rather to the anti-slavery
field, and, furthermore, has been recently very well treated by A. E, Martin
in his Antislavery Movement in Kentucky. We are here concerned with the
legal phase of the fugitive problem as it existed in Kentucky throughout
this period, as an internal question; in the relation between the State and
other States; and between the State and the federal authorities. In so far
as it relates to the law within the State such a discussion naturally
divides itself into two phases—those measures which affected the fugitive
slave himself, and those which were directed towards conspirators who might
have brought about the escape of slaves. The former group of laws were
enacted, for the most part, in the early days of statehood, for a runaway
slave was a natural evil in any condition of servitude. The latter group of
measures were passed in the later days of the institution when the
anti-slavery propagandists came in from the North, for until then there were
no cases of enticement. 'A large majority of those who were placed on trial
for conspiracy in the history of slavery in Kentucky proved to be outsiders
who had come into the State after 1835. The citizens of the commonwealth who
were opposed to the institution were satisfied to confine themselves to mere
words advocating the emancipation of slaves.
The State early adopted the
slave code of Virginia in regard to the treatment of runaway slaves just as
it did in regard to the general legal rights of the bonded Negro but
provided more drastic regulations in 1798. Any person who suspected a Negro
of being a runaway slave could take him before a justice of the peace, and
swear to his belief in the guilt of the accused. Being provided with a
certificate from the justice where he found the slave, the apprehender could
then take the fugitive back to the owner and might collect ten shillings as
a reward and an additional shilling for each mile of travel necessary in
bringing the slave to the master. If the money should not be paid, the
person entitled to it could recover the sum in any court of record in the
State upon the production of his certificate of apprehension as legal
evidence.
In many cases the runaway
could not be identified as the property of any particular owner, so
provision was made for the commitment of the offender to the county jail.
The keeper was forthwith to post a bulletin on the courthouse with a
complete description of the Negro. If at the end of two months no claimant
appeared the sheriff was to publish an advertisement in the Lexington
Gazette for three consecutive months so that the news of capture would reach
a larger public. In the meantime the sheriff was authorized to hire out the
fugitive and the wages thus received were to pay for the reward of the
captor and the expenses incurred by the county officials. If the owner
appeared during the period and proved his property, he could have the slave
at once in spite of any labor contract, providing he would pay any excess of
expenses over wages received. But often the master never appeared and if a
year had expired since the last advertisement had been published in the
Gazette, the sheriff could sell the slave and place the proceeds of the sale
plus the wages received over the expenses, in the county treasury. This sum
was credited to the unknown owner, for if he should appear at any future
time the county would reimburse him for his loss, otherwise the fund
reverted to the county.
This legal code for the
apprehension of runaway slaves remained practically unchanged throughout the
period of slavery. The only amendments which were ever made were those for
the increase of the reward to the captor and it is significant that the
first of these changes did not come until more than a generation later in
1835. Then the compensation was divided into three classes: for those
captured in their own county, $10; in another county, $20; out of the State,
$30.37 Just three years later it was found necessary to increase this by the
following interesting law: “The compensation for apprehending fugitive
slaves taken without this commonwealth, and in a State where slavery is not
tolerated by law, shall be one hundred dollars, on the delivery to the owner
at his residence within this commonwealth, and seventy-five dollars if
lodged in the jail of any county in this commonwealth, and the owner be
notified so as to be able to reclaim the slave.” There were no more advances
until a law of March 3, 1860, increased the reward to one hundred and fifty
dollars if the slave were caught outside the State and brought back to the
home county; one hundred and twenty-five dollars if caught outside the State
and brought back to any county in Kentucky; and twenty dollars if caught
anywhere in the home county.
The trend of these laws, from
the viewpoint of the rewards alone, shows the increasing importance of the
fugitive problem to the slaveholding group. It is noticeable that from the
year 1798 until 1835 there was not sufficient pressure upon the State
legislature to increase the reward to the captor of a runaway. It is further
evident from the scarcity of contemporary advertisements that there were
comparatively few Negroes who ventured forth from the neighborhood of their
masters. But with the rise of the anti-slavery movement in the North and the
growth of abolition sentiment as expressed by the apostles of Negro freedom
who had come from across the Ohio, the slaves tended to run away in
ever-increasing numbers. This was soon followed by a more rigid policy of
apprehension upon the part of the Kentucky legal authorities, apparent in
the increasing reward.
Not all eases of fugitives w
ere to be reached by a mere system of capture and reward. Rarely did a slave
make his escape into a free State without the aid of some one in sympathy
with him. Hence the need for legal machinery to punish those who assisted
runaways. From a chronological point of view the laws governing such cases
divide themselves into two parts; in the early days they refer to those who
would help a slave who had already escaped; in the later period they were
directed towards those who induced slaves to leave their home plantations.
Whichever of the free States
he tried to reach it was necessary for the Negro to cross the Ohio River to
get to his haven of refuge. Tf the Kentucky authorities could prevent him
from crossing the stream on the northern and western boundary, they could
prevent any slave from making a successful escape. Consequently the
legislature as early as 1823 attempted to solve the problem by passing a law
forbidding masters of vessels and others from employing and removing Negroes
out of the State. This act prevented runaways from securing work on a
steamboat with the specific purpose of leaving once they were on free soil.
But as usual this enactment was not effective, because there was a loop-hole
in it. The State assembly in 1831, therefore, provided that no ferryman on
the Ohio River should transport slaves across from Kentucky. No other
person, not owning or keeping a ferry, wras to be permitted to set slaves
over, or to loan them boats or watercraft. Slaves could only cross the river
when they had the written consent of their masters. Each and every owner of
a ferry was required to give bond in the sum of $3,000 to carry out the
spirit of the law; and for every violation he was subject to a fine of $200.
Not content with their
previous efforts the general assembly of 1838 went still further and
prohibited slaves from going as passengers on mail stages or coaches
anywhere within the State, except upon the written request of their owners,
or in the master’s company. The liability for the enforcement of the law
rested upon the stage proprietors, who were to be fined $100 for each slave
illegally transported.
No stringent laws were made
against the enticement of slaves to run away until 1830 when the
abolitionists first began to appear. Until that time there seems to have
been no need for any legal enactment regarding the question. The only
trouble previously had been with the whites and free Negroes who aided a
slave already on his way to the North. It was in response to the popular
demand that on Jaunary 28, 1830, the State legislature provided severe
penalties for any person found guilty of (1) enticing a slave to leave his
owner, (2) furnishing a forged paper of freedom, (3) assisting a slave to
escape out of the State, (4) enticing a slave to run away, or (5) concealing
a runaway slave. Should a person be suspected of any one of these offenses
and not be found guilty, he was to give security for his good behavior to
avoid all accusation in the future.
The most interesting legal
case based on this law \^as that of Delia Webster, a young lady from
Vermont, who was tried in the Fayette Circuit Court in December, 1844, for
the enticement of a Negro slave boy from Lexington. The details of the trial
show that the court was just and fair in spite of the fact that both Miss
Webster and her copartner, Calvin Fairbank, were not citizens of the State
and had furthermore used all kinds of deceit to accomplish their purpose.
For the sake of aiding one Negro slave boy to reach freedom they went to the
expense and trouble to feign an elopement to Ohio via Maysville, but the
Lexington authorities caught them as they were coming back on the Lexington
Pike near Paris. At the trial it was shown that Fairbank was in Kentucky for
no other reason than to induce slaves to escape to the North and that Miss
Webster had come to Lexington as a school teacher merely as a cloak for her
abolitionist work. The evidence offered by the prosecution was damaging in
the extreme. The defense put forth no data for her side at all, evidently
preferring to be hailed as a martyr to the cause for which she stood. The
jury brought in a verdict of guilty and she was sentenced to serve two years
in the State penitentiary.
The young accomplice, Calvin
Fairbank, proved to be the most persistent abolitionist the Kentucky
authorities ever encountered. He pleaded guilty to the indictment as charged
and was sentenced to serve 15 years in the penitentiary, to which he was
taken February 18, 1845. Evidently convinced that he had been punished
sufficiently Governor John J. Crittenden pardoned him August 23, 1849, on
condition that he leave the State at once. But such an ardent young
enthusiast for the cause of Negro freedom soon found that there were other
slaves who were in need of his aid and on November 3, 1851, he came across
from Jeffersonville to Louisville under the cover of night and “kidnapped” a
young mulatto woman who had been doomed to be sold at auction. Presumably in
the hope of rescuing other slaves he remained in the vicinity for several
days until on the morning of November 9 he was arrested by the Kentucky
authorities. Fairbank was placed in jail pending his trial, which took place
in the following March, when he was again sentenced to serve 15 years at
hard labor in the State penitentiary. He began his term March 9, 1852.40
This tune he was not so fortunate in an early release. The chief executives
of the State from time to time refused to pardon him. In April, 1864,
Governor Bram-lette was called to Washington by President Lincoln for a
conference and Richard T. Jacobs, the Lieutenant-Governor, became the acting
Governor. This son-in-law of Thomas II. Benton had taken more or less pity
on Fairbank, for he had stated to the prisoner that if he ever became the
chief executive he would release him. The opportunity thus being presented
for the first time, Jacob pardoned Fairbank on April 15, 1864, after a
continuous imprisonment of twelve years. Such was the experience in Kentucky
of an ardent northern abolitionist who boasted that he had “liberated
forty-seven slaves from hell.”
The systematic stealing of
slaves from Kentucky had begun about 1841 and at the time of the Webster and
Fairbank trial was at its height. This movement was one of the results
growing out of the animosity created by another legal ease which occurred in
1838—that of the Rev. John B. Mahan of Brown County, Ohio. This Methodist
minister, although living in the State of Ohio, was indicted by the grand
jury of Mason County, Kentucky, for having aided in the escape of certain
slaves. Governor Clark, of Kentucky, then issued a requisition on the
Governor of Ohio for Mahan as a “fugitive from justice.” Upon receipt of the
demand, the chief executive of Ohio immediately issued a warrant for the
arrest of the minister. A short time later he became convinced that this
step had been too hasty, because Mahan had never been in Kentucky. His
offense had merely consisted in helping runaways along the “underground
railroad,” once they were on free soil.
Hence, Governor Vance sent a
special messenger to the chief executive of Kentucky redemanding the alleged
fugitive from justice. Governor Clark made this very cordial and diplomatic
reply:
The position assumed by you
in relation to the fact of Mahan having never been within the limits of
Kentucky is clearly correct, and if upon the legal investigation of the case
it be found true, he will doubtless be acquitted. I feel great solicitude
that this citizen of your state, who has been arrested and brought to
Kentucky, upon my requisition, shall receive ample and full justice, and
that, if upon legal investigation he be found innocent of the crime alleged
against him, he shall be released and set at liberty. I will, therefore,
address a letter to the judge and commonwealth attorney of the Mason
Circuit, communicating to them the substance of your letter, and the
evidence which you have transmitted to me.
The efforts of the Governor
of Ohio were eventually successful, for in spite of his slaveholding
sympathies Governor Clark wrote to the judge of the Mason Circuit and the
latter charged the jury in no uncertain terms regarding the jurisdiction in
the case. After a trial of six days Mahan was acquitted.
The importance of this case
does not rest in the trial and its events but rather in the reactions which
it had upon the Kentucky populace. No one doubted that Mahan was guilty of
aiding slaves; but it was seen that he had been shrewd enough to confine his
activities to the State of Ohio, where the Kentucky authorities had no
jurisdiction. In his opening message to the State legislature, which met the
next month after the acquittal of Mahan, Governor Clark voiced the sentiment
of a large majority of Kentuckians. Bear in mind that these words came from
the same man who a month before had advised the Circuit judge of the
illegality of the Mahan indictment.
Some of the abolitionists of
an adjoining state, not contented with the mere promulgation of opinions and
views calculated to excite a feeling of disaffection among our slave
population, and to render this description of property insecure in the hands
of its proprietors, have extended their operations so far as to mingle
personally with our slaves, to enter into arrangements with them, and to
afford them the means and facilities to escape from their owners. This
flagitious conduct is not to be tolerated—it must be cheeked in its origin
by the adoption of efficient and energetic measures, or it will, in all
human probability, lead to results greatly to be deprecated by every friend
to law and order. This demon-h&e spirit that rages uncontrolled by law, or
sense of moral right, must be overcome—it must be subdued; its action in the
state should be prohibited under such penalties as will effectually curb its
lawlessness and disarm its power.
In pursuance of this and
similar recommendations the State legislature early in 1839 despatched a
delegation of members to the general assembly of Ohio then meeting at
Columbus. These men were charged to secure a law in Ohio for the better
security of Kentucky fugitive slave property. The Kentucky officials had
always been confronted with the problem of recovering runaways captured in
Ohio, even when they personally knew the captive. The old law of 1807 in
Ohio was never lax in the enforcement, but the plea of habeas corpus was
habitually used for the defendant and, furthermore, it often happened that
the necessary proofs of ownership were not in evidence. These facts coupled
with the publicity of the Mahan trial brought about the peculiar legislative
commission from Kentucky.
Here was a delegation from a
slave commonwealth sent to a free State to demand a rigorous fugitive slave
law for their own benefit. The Kentucky committee went even further and
suggested the provisions of the proposed enactment—and the remarkable thing
was that they actually succeeded. Although Ohio was known to be the home of
antislavery interests the law passed without any difficulty. By its
provisions a slave owner or his agent could appear before any judge, justice
or mayor, who was authorized to issue a warrant to any sheriff in Ohio
calling upon him to arrest the fugitive and bring him before any judge in
the county where caught. Upon proof of his ownership to the court the owner
was entitled to a certificate for removal. A heavy fine and imprisonment
were the penalty for any interference with the execution of either the
warrant or the removal of the slave. The vote on this measure in the House
of Representatives was 53 to 15. There has been made an analysis of this
roll call, which shows that the opposition all came from northern
Ohio—whereas those in the southern part of the State voted for it because
they were not inclined to allow any disturbance of the friendly commercial
relationship which they had with their neighbor State to the south.
Moreover, they objected to their locality being used as a place of refuge
for unfortunate Negroes.
Henceforth Ohio became a
veritable hunting ground for fugitive slaves, but the wiser of the Negroes
and the abolitionists diverted their efforts to other fields of escape,
especially through Indiana and Illinois. The legal authorities at this time
began to realize that their hope lay in the enactment of a federal law but
no definite steps were taken until after the affair of Francis Troutman at
Marshall, Michigan, in January, 1847. Troutman came from Kentucky to
Michigan to bring back six runaways that had been located at Marshall. When
he had found them and was about to take them before a magistrate for
identification, a crowd of citizens of the town put in their appearance and
threatened injury to Troutman and his three Kentucky companions. Although
the latter were acting in accordance with the law the mob would not let them
proceed in any manner—not even to appear before the magistrate—but demanded
that they leave town within two hours. In the meantime they were all four
arrested, tried and found guilty of trespass. When these events were
reported back to Kentucky mass meetings were held throughout the State in
protest against the Michigan action. The State legislature drew up a
resolution calling upon Congress to enact a new fugitive slave law. The
Senate referred the petition to the Committee on Judiciary and they later
reported a new fugitive slave bill winch was read twice and then
pigeonholed. The same action was repeated at the next session in 1849.
The general feeling in
Kentucky was intensified ;just at this time by a decision of the United
States Supreme Court in the case of Jones vs. Van Zandt, which had been
pending in various courts for five years. In April, 1842, John Van Zandt, a
former Kentuckian, then living in Springdale just north of Cincinnati, was
caught in the act of aiding nine fugitive slaves to escape, and one of them
got away even from the slave catchers. Consequently Wharton Jones, the
Kentucky owner, brought suit against Van Zandt in the U. S. Circuit Court
under the federal fugitive slave act of 3.793 for $500 for concealing and
harboring a fugitive slave. The jury returned a verdict for the plaintiff in
the sum of $1,200 as damages on two other counts in addition to the penalty
of $500 for concealing and harboring. Salmon P. Chase was the lawyer for an
Zandt and in a violent attack on the law 1793 he appealed to the U. S.
Supreme Court on the grounds that this statute was repugnant to the
Constitution of the United States and to the sixth article of the Ordinance
of 1787. Van Zandt in the appeal had the advantage of the services of WiDiam
H. Seward in addition to Chase while Jones was represented by Senator
More-head, of Kentucky. Justice Levi Woodbury in rendering the decision of
the court sustained all the judgments against Van Zandt and denied that the
law of 1793 was opposed to either the Constitution or the Ordinance of 1787.
At last the people of
Kentucky had secured a firm ruling from the highest judicial authority on
the force of the existing laws. Cold reason in the light of that day, apart
from all anti-slavery propaganda, justified them in making these demands.
Henceforth, there was no doubt about the legality of their position—it was a
question merely of the illegal opposition to the return of fugitives from
the States to the North. The Troutman case and many others, however, had
served as an index of northern sentiment in the matter, for the troubles of
the Kentucky slaveholder were just beginning. A year later, in 1848, a
requisition was issued on the Governor of Ohio for the return of fifteen
persons charged with aiding in the escape of slaves. Imagine the feeling in
Kentucky when Governor Bell of Ohio positively refused to give these persons
up, stating that the laws of Ohio did not recognize man as property. It was
apparently a political move on his part, for there was no question of the
property conception of slavery involved whatsoever, lie acted in direct
opposition to the laws of his State enacted in 1839 and to the federal
fugitive slave law of 1793.
After two decades of struggle
the abolitionists had come into their own and it was almost impossible to
recover slaves who had run away in spite of the legal machinery that had
been set up. Furthermore, the more extreme abolitionists had disregarded ail
law, orders and rights of private property and had even gone so far as to
proclaim that there was a “higher law than the Constitution.” Against such a
powerful foe the forces of all parties in Kentucky united in a firm stand,
demanding more stringent measures. The Supreme Court had decided that the
existing law was sufficient to recover fugitives and to demand and secure
damages for the interference with that right. With the coming of new
conditions, however, it was realized on all sides that new and most extreme
measures were necessary.
The existing circumstances
are well shown by the attitude of Henry Clay, senator from Kentucky as well
as author of the Compromise of 1850. Noted for his leanings towards the
North, throughout his public career of more than half a century, and as far
back as 1798 the advocate of gradual emancipation in Kentucky, he felt
called upon in this crisis to express the irritation of his own people:
I have very little doubt,
indeed, that the extent of loss to the state of Kentucky, in consequence of
the escape of her slaves is greater, at least in proportion to the total
number of slaves that are held within that commonwealth, even than in
Virginia. I know full well, and so does the honorable senator from Ohio
know, that it is at the utmost hazard and insecurity to life itself, that a
Kentuckian can cross the river and go into the interior to take back his
fugitive slave from whence he fled. Recently an example occurred even in the
city of Cincinnati in respect to one of our most respectable citizens. Not
having visited Ohio at all, but Covington, on the opposite side of the
river, a little slave of his escaped over to Cincinnati. lie pursued it; he
found it in the house in which it was concealed; he took it out, and it was
rescued by the violence and force of a negro mob from his possession—the
police of the city standing by, and either unwilling or unable to afford the
assistance which was requisite to enable him to recover his property.
Upon this subject I do think
that we have just and serious cause of complaint against the free states. I
think they fail in fulfilling a great obligation, and the failure is
precisely upon one of those subjects which in its nature is the most
irritating and inflaming to those who live in the slave states.
The Fugitive Slave Law of
1793 was superseded by that of 1850 by a sort of political bargaining on the
other measures of the Compromise. The letter of the new law was not much
different from the one of 1793—the chief changes being in the exaction of
severer penalties and the transfer of jurisdiction to the federal courts.
But even if members from the North did vote for the new provision there was
no public sentiment in the North back of its enforcement. Everyone in
Kentucky was heartily in favor of it, but that mattered little. The
effectiveness of any fugitive slave law depended upon the spirit in which it
was met in the North, for it was there that the law was to be applied. It
remained for a more or less forgotten decision of the Supreme Court in 1861
to show the greatest weakness of all laws for the recovery of runaway slaves
in the North.
In October, 1859, the
"Woodford County (Kentucky) grand jury returned an indictment against Willis
Lago, a free Negro, charging him with the seduction and enticement of
Charlotte, a Negro slave, from her owner, C. W. Nickols. A copy of this
indictment certified and authenticated according to the federal law was
presented to the Governor of Ohio by the authorized agent of the Governor of
Kentucky and the arrest and delivery of the fugitive from justice demanded.
The Governor of Ohio referred the matter to the Attorney-General of the
State and upon his advice the chief executive refused to deliver up the
Negro. The Supreme Court having original jurisdiction in suits between two
States, the demand for a mandamus to compel the Governor of Ohio to deliver
Lago to the Kentucky authorities was heard by that body in a suit under the
title of Kentucky vs. Dennison (the Governor of Ohio). The decision of the
court was rendered by Chief Justice Taney and it contained five important
statements: (1) “It was the duty of the executive authority of Ohio upon the
demand made by the Governor of Kentucky, and the production of the
indictment, duly certified to cause Lago to be delivered up to the agent of
the Governor of Kentucky, who was appointed to demand and receive him.” (2)
“The duty of the Governor of Ohio fas merely ministerial, and he had no
right to exercise any discretionary power as to the nature or character of
the crime charged in the indictment.” (3) “The word ‘duty’ in the act of
1793 means the moral obligation of the state to perform the compact, in the
Constitution, when Congress had, by that act, regulated the mode in which
the duty should be performed.’ (4) “But Congress cannot coerce a state
officer, as such, to perform any duty by act of Congress. The state officer
may perform if he thinks proper, and it may be a moral duty to perform it.
But if he refuses, no law of Congress can compel him.” (5) “The Governor of
Ohio cannot, through the judiciary or any other department of the general
government, be compelled to deliver up Lago; and upon that ground only this
motion for a mandamus is overruled.”
This decision came as a
fitting climax to the legal history of the fugitive slave problem as it
concerned Kentucky. Such an interpretation placed by the highest judicial
authority upon an act of Congress which had stood throughout the slavery era
in Kentucky showed beyond any doubt whatever that the legal battle over
slavery questions was at an end. If any solution was to be found in the
future it would not be in the legislative halls nor in the court room.
Emancipation was an important
question closely connected with that of the fugitive. This was one of the
problems to be discussed in the Constitutional Convention of 1792. There
were some few members who were in favor of immediate liberation and others
inclined towards a scheme of gradual release of the Negro from bondage. But,
as has been shown in the early part of this chapter, the group in favor of
the existing institution easily dominated the convention and drew up the
famous article IX, which remained without change throughout the slavery era
as a part of the fundamental constitutional law. It is significant that it
was provided that the legislature should have no power to pass laws for the
emancipation of slaves without the consent of their owners, or without
paying their owners, previous to such emancipation, a full equivalent in
money, for the slaves so emancipated: that the legislature should not pass
laws to permit the owners of slaves to emancipate them, saving the rights of
creditors, and preventing them from becoming a charge to the counties in
which they resided.
From a purely objective
viewpoint it is doubtful if a fairer legal guide for the institution of
slavery in relation to the rights of emancipation could have been drawn up.
On one side, it prevented the State authorities from depriving a slaveholder
of his property without due compensation. On the other hand, no unscrupulous
master was to free his old and invalid slaves and thereby inflict the burden
of their support upon the community as a whole. But this constitutional
provision had no legal force in itself. It was to serve as a guide for the
enactment of statute laws later.
The State assembly on
December 17, 1794, proceeded to the enactment of the first emancipation law
of the State. The contents of Article IX of the Constitution were carefully
followed and the detailed legal code of emancipation laid down in these
words:
It shall be lawful for any
person by his or her last will and testament, or by any other instrument in
writing, under his or her hand and seal, attested and proved in the county
court by two witnesses, or acknowledged by the party in the court of the
county where he or she resides, to emancipate or set free his or her slave
or slaves: who shall thereupon be entirely and fully discharged from the
performance of any contract entered into during servitude, and enjoy as full
freedom as if they had been born free. And the said court shall have full
power to demand bond and sufficient security of the emancipator, his or her
executors or administrators, as the ease may be, for the maintenance of any
slave or slaves that may be aged or infirm, either of body or mind, to
prevent their becoming chargeable to the county. And every slave so
emancipated shall have a certificate of freedom from the clerk of such court
on parchment with the county seal affixed thereto, for which the clerk shall
charge the emancipator five shillings; saving, however, the rights of
creditors and every person or persons, bodies politic and corporate, except
the heirs or legal representatives of the person so emancipating their
slaves.
This law remained throughout
the slavery period in Kentucky and the only changes which were ever made in
it were in the minor details to untangle some legal ambiguities. The law of
1823, however, is important in showing the discrepancies of the original
provisions. By this amendment it was enacted that when the county courts
received proof or acknowledgment of a deed of emancipation, of a will
emancipating slaves, they were to note on their record a description of any
such slaves. The certificate of freedom which was given to the Negro was
also to contain this description and no other certificate was to be issued
except on the presentation of proof that the first one had been lost or when
such was required for use as evidence in some suit. If any slave thus
liberated was found to have presented his certificate to another still held
in bondage with a design of freeing him, the emancipated slave was to suffer
severe penalties. These added provisions apparently came to fill all the
gaps in the previous law and no further amendments of importance were needed
to make the laws of emancipation run smoothly.
Of all the many slavery cases
which were brought before the Court of Appeals in the next thirty years it
is interesting to note that nearly all of them concerned themselves more or
less with the question of freedom. The very fact that they reached the
highest court is also conclusive evidence that the law was not quite as
clear as one would at first suppose. Close study of the findings of the
court will show that the judiciary was always consistent in its
interpretation of the law and that most of the cases were carried up from
the lower courts because of disputes between the heirs of an estate and the
administrator as to their precedence in the matter of slaves. This part of
the controversy concerned itself with the property conception of the slave,
whether he was real or personal estate, which was discussed earlier in this
chapter. The purely emancipation cases before the Court of Appeals divide
themselves into three parts: (1) those which concerned the interpretation of
the statute law, (2) those suits for freedom which were based on the
question of residence and (3) those which involved persons detained as
slaves.
Most of the first class of
cases concerned themselves with the emancipation of slaves by will. The
number of slaveholders who freed their Negroes during their own lifetime
seems to have been very small. On the other hand, from a study of the slave
cases in court it appears to have been a very common thing for an owner to
provide for the freedom of his slaves in his will. The right of a master to
dispose of his own property was beyond dispute, but, as is often the case,
the heirs were seldom satisfied and they brought the will into court on one
or more technical grounds in an attempt to break the document which freed so
much valuable property. The court in every case held that the right of the
owner was absolute and that if by the letter of his will his slaves were
freed, that right was subject to no dispute. Furthermore, when the Negroes
were thus emancipated they did not pass to the personal representatives of
the deceased, as assets. They passed by will just as land, and the devise
took effect at the death of the testator, whether it be a devise to the
slave, of his freedom, or of the slave, to another. The servant, thus
affected, had only to appear before the county court and establish his
emancipation. This accomplished, it was the duty of the court to give him a
certificate of freedom without the consent of the representatives of the
emancipator. The right of disposal rested with the owner, who could
emancipate by act, or by will, and he who denied the right or placed any
claim against it was compelled to show the prohibition.
While the owner had absolute
powers of disposal of his own slaves he could not draw up a will of
prospective freedom which would hold in spite of the rights of his heirs. If
a master desired to be very lenient with his servants, he had to make their
freedom absolute and in writing. This was well brought out in the case of an
apparently kind-hearted Kentucky slaveholder who provided in his will that
his slaves were to select their own master without regard to price. They
chose as their future owner a man who did not need them, but who offered to
take them at about half their real value. The court held that in such a case
the executor was not bound to accept the offer, since the interests of those
entitled to the proceeds of the sale, as well as the desire and comfort of
the slaves, were to be regarded. Another owner had the right idea, but
defeated his own intentions by willing all his forty slaves to the Kentucky
Colonization Society. The court held that such an act by no means freed the
slaves and that by the laws of the State until they were free they could be
hired out and the proceeds considered as a part of the estate.
As in all border States there
were many legal battles for freedom, which involved the question of
residence on free soil. These cases were largely concerned with the question
of the right of a citizen of Kentucky to pass through a free State on
business or pleasure attended by his slaves or servants without losing his
right of ownership over such slaves. The principle involved was early
considered in the Kentucky Court of Appeals and faithfully carried out in
succeeding generations, viz.: that a “fixed residence” or being domiciled in
a non-slaveholding State would operate to release the slave from the power
of the master; hut that the transient passing or sojourning therein had no
such effect. In an early case in 1820 involving a suit for freedom the court
held that a person of color from Kentucky who was permitted to reside in a
free State could prosecute his right to freedom in any other State. It was
held to be a vested right to freedom, which existed wherever he went. In
another instance an owner permitted his slave to go at large for twenty
years, but the court held that that alone did not give him freedom. Still
under this liberty of movement the slave went off into a free State to
reside and the court held that the Negro was then free because his right
grew out of the law of the free State and not out of that in which the owner
resided.63 An owner permitted his slave to go to Pennsylvania and remain
there for a longer period than six months, with a knowledge of the law
passed in that State in 1780, and the Kentucky Court of Appeals held that
the slave was entitled to his freedom and that even if the slave had
returned to Kentucky his right could be asserted there just as well as in
Pennsylvania.64 But should a slave go with his master to a free State and
later return to Kentucky with him, whatever status he had then was to be
determined by the law of Kentucky and not by the rule of any State where the
slave might have been.63 The fact that a slave stayed in New York for three
months before his return to Kentucky, his owner knowing he was there, and
making no effort to bring him away, did not give to such slave a right to
freedom.66 A slaveholder sent one of his servants over into Illinois to cut
some wood for a few weeks and later the latter brought suit for freedom on
the grounds of residence in a free State but the court denied any such
right, since the slave returned to his master in Kentucky voluntarily.
If an emancipated Negro for
any reason was held in slavery and later established his right to freedom in
court, he could not recover compensation for his services or damages for his
detention, unless he could prove that he was held under full knowledge of
his right with good reason to believe him free. If pending his suit for
freedom he should be hired out by order of the court, the net hire was to be
awarded to him if he succeeded.
The actual number of
manumissions which took place in Kentucky will no doubt never be known.
Among the few statistics are those of the federal census for 1850 and I860
and they include only the figures for the one census year. According to this
source in 1850 only 152 slaves were voluntarily set free in the State or one
slave out of every 1,388, a percentage of only .072; and in 18G0 there were
176 Negroes recorded as freed or one out of every 1,281 slaves, a percentage
of only .078. We can easily assume from the accounts which we have from
papers of that time that these numbers were far short of those that were
really set free by their masters. It was the custom of many owners who were
about to free their slaves to take them to Cincinnati and there have them
set free in the Probate Court.
Early in 1859, forty-nine
slaves from Fayette County, mostly women and children, were brought to
Cincinnati and set free and later sent to a colony of emancipated Negroes in
Green County, Ohio. In March of the same year Robert Barnet of Lincoln
County, Kentucky appeared with eighteen slaves—a father, mother, nine
children and three grandchildren and another woman and four boys, who were
all emancipated in the Cincinnati Probate Court. Before crossing the Ohio,
while in Covington, he was offered $20,
000 for all of them but he
stated that he would refuse even $50,000. In January, 1860, William
McGinnis, of Bourbon County, appeared with fourteen slaves before the same
probate court and set them all free.
The law of Kentucky plainly
provided that no slave was to be emancipated unless bond were given that he
would immediately leave the State. Hence it was but natural that a master
who intended setting his slaves free should take them as slaves to a free
State and there give them their freedom, thus satisfying his own conscience
and at the same time removing any future legal trouble that might ensue on
account of his former slaves being found in the State of Kentucky. For this
reason it would seem that a large number of the kind-hearted slaveholders
who freed their slaves did so outside the bounds of Kentucky and thus that
State was deprived of the credit for many emancipations which took place
voluntarily at the hands of her own slaveholders. |
