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.[290] 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.[291]
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 any 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 oyer 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."[292]