THE LEGAL STATUS OF SLAVERY
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
The legislature shall 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 emancipated; they shall
have no power 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 case of their neglect or refusal to comply
with the directions of such laws, to have such slave or slaves
sold for the benefit of their owner or owners.[285]
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 any body 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."[286]
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.[287]
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.[288] 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."[289] 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