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."[293]
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.[294]
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.[295]
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.[296]
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 anti-slavery 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.[297]
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."[298]
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 personalty; 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 1824 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, in a grant or devise
no otherwise than personal chattels; and personal actions might be
brought to recover the possession of them. 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."[299]
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.[300]
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.[301]
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.[302] 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 ketch 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.[303] 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.[304] A still further extension was that of February
27, 1856, 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.[305] The session of 1858 made the force of the law more
explicit by defining very clearly the jurisdiction in such cases.[306]
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.[307]
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."[308]
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.