Section 26 provided that "no slave or slaves shall be imported into

this state as merchandise, and any person offending herein, shall

forfeit 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."[309]

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.[310] 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."[311]

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.[312]

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 80,561 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.[313]

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 1792. 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."[314]

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. 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.[315] 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."[316] 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 such 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. We 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.[317]

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.[318] 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

_Anti-slavery 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.[319]

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.[320]

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.[321] 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."[322] 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 cases of fugitives were to be reached by a mere system of

capture and reward. Barely 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. If

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.[323] 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, was 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.[324]

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.[325]

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 January 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.[326]

The most interesting legal case based on this law was 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.[327]

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.[328] 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.[329]

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.[330] This time 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 Bramlette 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 H. 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."[331]

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 case 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.[332]

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 checked 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-like 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.[333]

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

anti-slavery 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.[334]

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.[335] 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.[336] The Senate referred the petition to the Committee on

Judiciary and they later reported a new fugitive slave bill which 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 1793 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 Van 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 William H. Seward in

addition to Chase while Jones was represented by Senator Morehead, 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.[337]

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. He 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 all 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. He 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.[338]

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 was 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."[339]

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 case 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.[340]

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, or 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.[341] 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.[342] 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.[343]

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.[344] 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.[345]

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; but 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.[346] 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.[347] 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.[348] 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.[349] 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.[350] 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.[351]

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 or 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.[352]

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 1860 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 1860 there were 170 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.[353] 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.[354] In January, 1860,

William McGinnis, of Bourbon County, appeared with fourteen slaves

before the same probate court and set them all free.[355]

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.

FOOTNOTES:

[285] _Littell's Laws_, 1: 32.

[286] Brown, John Mason, _The Political Beginnings of Kentucky_, p.

229.

[287] _Littell's Laws_, 1: 44.

[288] _Ibid._, 1: 161.

[289] _Littell's Laws_, 2: 113.

[290] _Littell's Laws_, 2: 114.

[291] _Littell's Laws_, 2: 116-117.

[292] _Littell's Laws_, 2: 117-118.

[293] _Littell's Laws_, 3: 403.

[294] _Ibid._, 2: 117-118.

[295] _Niles' Register_, February 2, 1830.

[296] _Littell's Laws_, 4: 223-224.

[297] Stroud, _Laws relating to Slavery_, p. 86. Littell & Swigert, 2:

1066-9; 1060-4.

[298] 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. _Littell's Laws_, 2:

120.

[299] _T. B. Monroe's Report I._, 23.

[300] Beatty _vs._ Judy, 1 Dana, 101. Plumpton _vs._ Cook, 2 A. K.

Marshall, 450.

[301] Rothert, _History of Muhlenburg County_, p. 343.

[302] Young, B. H., _History of Jessamine County_, p. 89.

[303] Session Laws, 1834, p. 726.

[304] _Ibid._, 1850, p. 51.

[305] _Ibid._, 1856, Vol. 1, pp. 42-44.

[306] _Ibid._, 1858, Vol. 1, pp. 47-48.

[307] Starling, p. 290.

[308] _Littell's Laws_, 1: 32.

[309] _Littell's Laws_, 2: 119.

[310] _Ibid._, 5: 293.

[311] _Ibid._, 5: 435-437.

[312] Barre, W. L., _Speeches and Writings of Thomas F. Marshall_, p.

115.

[313] Section 1 of the law 1833 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. 258-261.

[314] Barre, W. L., p. 116.

[315] _Niles' Register_, January 23, 1841.

[316] Collins, Vol. 1, p. 83.

[317] Session Laws, 1860, Vol. 1, p. 104.

[318] _Ibid._, 1864, pp. 70-72.

[319] _Littell's Laws_, 2: 5-6.

[320] _Ibid._, 2: 5-6.

[321] Session Laws, 1835, pp. 82-83.

[322] _Ibid._, 1838, p. 158.

[323] Session Laws, 1823, p. 178.

[324] _Ibid._, 1831-2, pp. 54-55.

[325] Session Laws, 1838, p. 155.

[326] _Ibid._, 1830, pp. 173-175.

[327] _Western Law Journal_, 2: 232-235 (best report of the trial).

_Niles' Register_, December 21, 1844. Webster; Delia A., _Kentucky

Jurisprudence_, pp. 1-84.

[328] Fairbank, _How the Way was Prepared_, pp. 53, 57.

[329] _Ibid._, p. 85.

[330] _Ibid._, p. 103.

[331] Fairbank, pp. 144, 149.

[332] _American Anti-slavery Society Report_, 1839, p. 90.

[333] _American Anti-slavery Society Report_, 1839, pp. 93-94.

[334] Chaddock, F. E., _Ohio before 1850_, p. 86.

[335] McMaster, _History of the United States_, Vol. 7: 262-263.

[336] Senate Document No. 19, 30th Congress, 1st Session.

[337] 5 Howard's Reports, 215-232.

[338] Colton, Reed and McKinley, _Works of Henry Clay_, Vol. 3: 329.

[339] 24 Howard's Reports, 109-110.

[340] _Littell's Laws_, 2: 246-247.

[341] Session Laws, 1823, p. 563.

[342] Black _vs._ Meaux, 4 Dana, 189.

[343] Susan _vs._ Ladd, 6 Dana, 30

[344] Hopkins _vs._ Morgan's executor, 3 Dana, 17.

[345] Isaac et al. _vs._ Graves' executor, 16 Ben Monroe, 365.

[346] Rankin _vs._ Lydia, 2 A. K. Marshall, 467.

[347] 15 Ben Monroe, 328.

[348] 14 _Ibid._, 355.

[349] 12 _Ibid._, 542.

[350] 4 Metcalfe, 231.

[351] 11 Ben Monroe, 210.

[352] 4 Dana, 589, 7 Dana, 360.

[353] _American Anti-Slavery Society Report_, 1859, p. 79.

[354] _Weekly Free South_ (Newport), March 4, 1859.

[355] _American Anti-Slavery Society Report_, 1860, p. 44.

CHAPTER IV

THE SOCIAL STATUS OF THE SLAVE

As many of the slave regulations were enacted to deal with extreme

cases and some of them were not generally enforced, it is necessary to

consider also the social status of the blacks to determine exactly

what the institution was in Kentucky. In this commonwealth slavery was

decidedly patriarchal. The slave was not such an unfortunate creature

as some have pictured him. He usually had set apart for himself and

his family a house which was located near the master's mansion. While

this home may have been a rude cabin made of small logs, with a roof

covered with splits and an earthen floor, likely as not the master's

son was attending school a few weeks in the year in a neighboring log

cabin which boasted of no more luxuries than the humble slave

dwelling. The servant and his family were well fed and had plenty of

domestic cloth for all necessary wearing apparel.

The kind of clothing which the Kentucky slave had can be seen best by

a study of the runaway slave advertisements where a description of

apparel was often essential to the apprehension of the Negro. "Billy"

in 1803 ran away from his owner in Lexington and took such a variety

of clothing with him that the master was unable to give a description

of them.[356] "Jack," running away from his owner in Mercer County,

had on when he left and took with him "one pale blue jeans coat, one

gray jeans coat, and an old linsey coat; one pair of cloth pantaloons,

one pair of jeans, and one of linen."[357] "Thenton," when leaving his

master in Warren County, took with him "a new black smooth fur hat, a

yellow woollen jeans frock coat, more than half worn; three shirts,

two of coarse cotton and one entirely new, the third a bleached

domestic and new; one blanket; one pair of pantaloons, of cotton and

flax."[358] "Jarret," from Leitchfield, wore when he left "a smooth

black Russia hat" and took with him "a pair of buckskin saddle bags

... and a great deal of clothing, to wit: one brown jeans frock coat,

and pantaloons of the same; also, a brown jeans overcoat, with large

pockets in the side; a new dark colored overcoat, two pair blue cloth

pantaloons, and an old silver watch."[359] The clothing of "Esau,"

from Meade County, was described as "brown jeans pants, black cassinet

pants, blue cloth pants, three fine shirts, one black silk vest and

one green vest, one brown jeans frock coat, one pale blue coat, velvet

collar; coarse shoes and black hat."[360] "Stewart" left his master in

Bullitt County dressed in typical Negro attire--"a black luster coat,

made sack fashion, and a pair of snuff colored cassinet pantaloons;

also, a black fur hat with low crown and broad brim, and vest with

purple dots on it."[361] "George," living in Marion County, had an

outfit of "Brown jeans frock coat (skirt lined with home-made flannel

dyed with madder), a pair of new black and yellow twilled negro jeans

pantaloons, white socks, factory shirt with linen bosom, and black

wool hat."[362] An owner advertising in 1852 stated that his slave

"Andy" had three suits of clothes with him when he ran away.[363] It

is perfectly evident from the reading of these slave advertisements

that the male Negroes were as substantially clothed as any members of

their race could expect to be at that time even in a state of freedom.

The surplus clothing as described above was all a part of the slave's

own property and not taken from the master's wardrobe. There were many

cases of theft but they need not be considered in this discussion. A

large majority of all runaway slaves were men and even when

advertisements dealt with female fugitives it was only on rare

occasions that the owner attempted to give a description of the

clothing which was worn. Will Morton in 1806 gave a list of "Letty's"

clothing as "two or three white muslin dresses, one of fancy chintz,

salmon colored linsey petticoat, white yarn stockings, and good shoes,

with sundry other clothing of good quality."[364] At such an early

date in the history of Kentucky slavery the apparel of this young

slave woman compares very favorably with that which was worn by the

white people.

In sickness the slaves were cared for by the same physician who looked

after the master and his family and should occasion demand assistance

any member of the owner's household might be found nursing a sick

Negro. There was no limit to the supply of fuel for the winter, for

the slaves had the right to cut timber for their own use anywhere in

the woods of the estate.[365]

As in Virginia, the slave was permitted to have a little "truck-patch"

of half an acre or more, where he could raise any crop that he

desired. In Kentucky these small plots of ground were nearly always

filled with sweet potatoes, tobacco and watermelons. The soil was not

only conducive to their cultivation but they were the three favorite

agricultural products for personal consumption. These particular crops

needed little cultivation once they were planted and such as was

necessary could easily be done on Saturday afternoons, when the slave

was at leisure.

Historians have reminded us that in most of the Southern States there

was a tendency for the more energetic of the slaves to work for pay

during their idle hours and thus eventually secure a sufficient

surplus to buy their own freedom. In Kentucky such cases were very

rare. Most Negroes seem to have been content with their condition in

such bondage as existed in the State. There were many cases in which a

Negro refused to purchase his freedom although he had the necessary

amount of money. George Brown, the famous Negro author of

_Recollections of an Ex-slave_, published in the _Winchester

Democrat_, has given us some experiences which testify to the feeling

existing between master and slave. In 1857 his mistress was offered

$2,100 for George, but when talking the matter over with him she found

that he had serious objections to the prospective purchaser. She

showed an interest in Brown's welfare by refusing to sell him. In

later years when freedom was within his grasp for the asking, Brown

"bought himself" for $1,000 because, as he says in his own words, it

was not honorable for him to "swindle his young mistress out of her

slave." Such was the example of a Kentucky slave who purchased his own

freedom, not for his own benefit, but for that of his mistress.

Another factor entered into this question. In the later years, once a

slave secured his liberty, he was immediately required to leave the

State and if such a one had lived all his life in Kentucky, he would

naturally hesitate to depart into an unknown region. Many of the

slaves did earn considerable money by cobbling shoes, cutting wood,

and making brooms, but most of them showed little tendency to save

their earnings for any future deliverance from bondage. They were more

concerned then--as they often are even yet--with the pleasures of the

day. More often they were to be found wasting their spare change on

whisky, a problem which grew greater for the master with passing

years.

In addition to the regular Saturday afternoon and Sunday off every

week the slaves were given several other holidays throughout the year,

the most extensive being at Christmas time. At Easter they were

allowed two or three days rest and when an election was being held

there was no work done outside of the regular chores. The general

election day in those times was the first Monday in August and it was

the custom for most of the slaves throughout the "penny-royal" and

"bluegrass" to journey to the county seat, where they would all

congregate and have a general frolic in accordance with Negro

standards of a good time. In the later years of slavery the towns had

established sufficient control of the Negroes gathering in their

jurisdiction so that the drink evil was more or less mitigated. The

fear of the law was a great incentive to their proper conduct on those

rare occasions when they had a whole day in town to themselves without

any tasks to perform for their master. As Rothert has well observed,

however, the slave sometimes did have to care for his drunken owner

and take him home. To the student acquainted with Kentucky history and

social conditions such a brief statement suggests a wealth of material

on the local type of slavery.

That ardent abolitionist from across the sea, James Silk Buckingham,

has recorded a characteristic picture of the Kentucky slave at rest

and in gala attire:

"We remained at Henderson the greater part of the day, it being a

holiday with the negro slaves on the estate, so that it was

difficult to get the requisite number of hands to complete the

landing in a short time. Some of the female slaves were very

gaily dressed, and many of them in good taste, with white muslin

gowns, blue and pink waists, ribbons, silk handkerchiefs or

scarfs, straw bonnets, and a reticule for the pocket handkerchief

held on the arm. In talking with them, and inquiring the reason

of the holiday, one said she believed it was Easter, another said

it was Whitsuntide, and a third thought it was midsummer. They

were chiefly the household slaves, who are always better treated,

better dressed, and more indulgent than the field laborers. The

men who were employed in landing the cargo appeared to be more

cheerful in their general aspect and behavior than the field

slaves I have seen at the South: and there is no doubt that in

Kentucky their condition is very much better than in most other

states, their work lighter, their food and clothing better, and

their treatment more kind and humane."[366]

Legally, there were no marriages among the slaves. They were not

citizens, but property. The men were urged to take their "wives" from

among the women of the home estate, if a suitable companion could be

found. But if not they eventually secured one in the neighborhood and

the master usually allowed the slave a pass to see his wife every

night in the week. While such a cohabitation was not exactly a legal

affair most of them were held as sacred as those more legalized unions

among the master class. Many masters paid an unconscious tribute to

these unions. When there ran away a slave who had a wife living in the

neighborhood or even at a great distance the owner would make mention

of the exact locality of the wife in order that people in that region

would be on the lookout for the fugitive. J. C. Bucklin in 1824 did

not give much of a description of David, who had left his master, but

he very carefully stated that he had a "wife and children at William

Shirley's, about 16 miles from this place, on the Westport Road."[367]

An owner in Fayette county after giving a detailed picture of "Arthur"

added that "Capt. Peter Poindexter, eight miles from Lexington owns

his wife, and I expect that he will be in that neighborhood."[368] A

more extreme example was that of "Dick," a Lexington slave who ran

away to New Orleans, the owner thought, because "he has a wife living

in that city, and he has been heard to say frequently that he was

determined to go to New Orleans."[369] Such cases as this were the

logical consequence of the slavery system. They existed in Kentucky

just as in any other slave State, but they were few compared with

those slaves unions that were never broken.

It was to the economic as well as humanitarian interest of the master

to have sympathy with the peace and contentment of his servant. Thus

most of them took care that the family relationships of the slaves

should not be disturbed. Oftentimes when the owner of either a husband

or a wife was on the point of moving out of the county the masters

would get together and make a trade which would obviate any disruption

of the slave family. Under such conditions a man would part with a

servant who otherwise could not have been bought at any price. Such a

situation was possible only in a State where the personal interest in

a slave and his welfare took precedence over merely his economic value

to the owner.[370]

Charles Stewart in _My Life as a Slave_ has given us his own

experiences of home life and marriage among slaves in Kentucky. He

lived in Paris and was engaged in handling race horses. Soon after

coming from Virginia to Kentucky he fell in love with a young mulatto

girl, who was the property of a Mr. Robertson, who gave his consent to

their marriage, promising never to part them by his own free will. In

his own dialect Stewart dictated his story. "So I married her, an' tuk

her to a little house I had fixed up near de stables, an' she

clear-starched an' sewed an' broidered an' wukked wid de hand-loom,

an' made more pretty things dan I could count. She paid her marster,

en course, reg'lar, so much a month fur her hire, but, lor', she neber

touched her airnin's fur dat. I had plenty of money to hire as many

wives as I wanted, but dis one was de onliest one I eber did want, an'

so it was easy enough." After two years his wife became very sick and

died and the grief of the Negro man was touching in the extreme. "She

was jes' as fond o' me as I was of her, an' it did 'pear hard luck to

lose her jes' as I was makin' up my mind to buy her out and out, only

en course, it was a fortunate thing I hadn't bought her, as long as

she had to die, kase den I would ha' lost her an' de money too. Arter

she was in de ground it jes' 'peared to me like eberything was

different; I tuk a dislikement to Paris, an' I didn't feel like goin'

home to Virginny." His master agreed to let him go wherever he liked

if he could find an owner to suit him and finally Stewart went to

Louisiana after an interview with Senator Porter of that State. He was

to stay six months to see how he liked it and then if agreeable he was

to stay there. He must have been a rather unusual Negro, for his

selling price was finally fixed at $3,500.[371]

But life among the slaves of Kentucky was not by any means a path of

roses. Many anti-slavery leaders attested to this fact. The most

trustworthy statement that was ever made on this general subject was

that embodied in the pamphlet of the Presbyterian Synod of Kentucky in

1835 advocating gradual emancipation. The following brief extracts are

most significant:

"The system produces general licentiousness among the slaves.

Marriage, as a civil ordinance, they cannot enjoy. Until slavery

waxeth old, and tendeth to decay, there cannot be any legal

recognition of the marriage rite, or the enforcement of its

consequent duties. For, all the regulations on this subject would

limit the master's absolute right of property in the slaves. In

his disposal of them he could no longer be at liberty to consult

merely his own interest ... their present quasi-marriages are

continually voided (at the master's pleasure).... They are in

this way brought to consider their matrimonial alliances as

things not binding, and act accordingly. We are then assured by

the most unquestionable testimony that licentiousness is the

necessary result of our system."

One would infer from this observation of apparently fair-minded men

that slave unions were not very sacred affairs and that any disruption

of them would amount to little, but in the same document these

Presbyterian preachers give a back-handed compliment to the stability,

at least in temperament, of the average slave marriage.

"Brothers and sisters, parents and children, husbands and wives,

are torn asunder and permitted to see each other no more. These

acts are daily occurring in the midst of us. The shrieks and

agony often witnessed on such occasions proclaim with a trumpet

tongue, the iniquity of our system. There is not a neighborhood

where these heartrending scenes are not displayed; there is not a

village or road that does not behold the sad procession of

manacled outcasts, whose mournful countenances tell that they are

exiled by force, from all that their hearts hold dear."

It is strange that these two opposing views should appear in the same

pamphlet, but nevertheless they are both undoubtedly true pictures of

slavery in Kentucky. It is merely a question as to which of the two

represented the majority of cases. Licentiousness there was, but it

was certainly very much less among the slaves of Kentucky than in the

far South. Slave unions were treated with more respect by the masters

of Kentucky than in most slave States. As has been pointed out in a

previous chapter, the very fact that the few instances of inhuman

separation of slave families produced such a storm of public

disapproval shows that it was not a very general practice in the

State.

From the legal standpoint the slave had no rights or privileges in the

attainment of even a meager education. On the other hand Kentucky was

the only slave State, with the exception of Maryland and Tennessee,

which never passed any laws forbidding the instruction of slaves. Thus

no penalty was attached to Negro education, neither was any

encouragement given. Those slaves who learned to read were the

servants of masters who because of conscientious scruples taught them

how to read the Bible. Few slaves ever learned to write, for they

might then be tempted to serve as unofficial dispensers of passes in

the owner's name. The general objection to any reasonable amount of

education was the tendency towards dissatisfaction with the servile

status thereby aroused. If the slave could learn to read well, it was

feared that he would become a victim of the "filthy" abolitionist

literature, which through the resultant effect upon the Negroes would

have produced no end of trouble to the slavery system. Hence, for the

most part, the Kentucky slave remained in blissful ignorance, and well

for him as such and the institution he represented that his learning

was no greater.[372]

Out of a collection of some three hundred and fifty runaway slave

advertisements concerning Kentucky slaves the author has found 71

cases in which mention was made that the Negro could read and 37

instances in which he could write. The latter cases are all included

in the former classification also. On that basis a little over ten

per cent of the slaves could read and write and about twenty per cent

could read but were unable to write. There are, however, two strong

reasons against any such general conclusion. In the first place, the

more a slave learned the more liable he was to become dissatisfied and

run away; and secondly, the careful mention which was made in

advertisements of the Negro's ability to read or write would tend to

show that it was more or less an unusual accomplishment.

Taking up the question of the education of slaves in the State, the

Presbyterian Synod of Kentucky said in 1834 that "Slavery dooms

thousands of human beings to hopeless ignorance ... if slaves are

educated it must involve some outlay upon the part of the master....

It is inconsistent with our knowledge of human nature to suppose that

he will do this for them. The present state of instruction among this

race remains exactly what we might ... naturally anticipate.

Throughout the whole land (State), so far as we can learn, there is

but one school in which, during the week, slaves can be taught. The

light of three or four Sabbath schools is seen glimmering through the

darkness that covers the black population of the whole State. Here and

there a family is found where humanity and religion impel the

master, mistress or children to the laborious task of private

instruction."[373]

It should be added in this connection that the same statement would

hold true of the free Negro population of Kentucky at the same period.

Until long after the Civil War there was no provision made for their

education other than that of individual enterprise. The public

education of the whites was not on a plane comparable to that of any

of the Northern States until after the reconstruction period, and even

then Kentucky lagged behind for years.

The church and its influence for the betterment of society under the

slavery system was more effective than the school. The chief religious

paper of the State was the _Presbyterian Herald_ and one of its most

persistent pleas was that the proper religious instruction of the

Negro servant class would answer most of the objections to the

institution. "The most formidable weapon in the hands of the

abolitionist," said the editor, "is the indifference which he charges

to the Christian slaveholder toward the spiritual welfare of the slave

under his control. Disarm him of this weapon, and you have done much

to render him powerless."[374]

Religious instruction in families of Christian habits of life,

however, was not so sadly neglected. The household servants were

usually brought to the house during the family worship and the

scriptures were not merely read to them but explained. No restrictions

were ever placed on church attendance either by law or by custom. Many

slaves united with the white churches and throughout the State today

one may find any number of old churches whose records still show

several of these Negroes on the church rolls. Most of them are very

kindly remembered for their good moral character and abiding faith.

Such a condition was not so prevalent among the agricultural slaves,

except where they were few in numbers. Even here, however, the

religious instinct was not suppressed in any manner. Their religion at

the most was a very crude imitation of the worship of their masters.

They were not confined to the rear seats of the white churches for

their attendance at Sunday services. They could hold their own

meetings in schoolhouses and vacant church edifices.

It was these distinctively slave gatherings that gave rise to one of

the most interesting of all Negro characters--the preacher. Tradition

and story have related many a charming picture of this quaint

representative of Negro faith, but unfortunately few life stories of

any of them have ever been preserved. In nearly all the county

histories we find mention of several of these Negro exhorters who

seemingly were men of some degree of intelligence. The majority of

them were apparently themselves slaves, subject to the will of their

masters, and while the restrictions on their movements were very lax,

they seldom if ever spoke beyond the borders of their home

county.[375]

One of the famous Negro preachers of the early nineteenth-century

South was Josiah Henson. From 1825 to 1828 he was a slave in Daviess

County, Kentucky, and in his autobiography he has given us a picture

of the circumstances under which he became a slave preacher. "In

Kentucky," said he, "the opportunities of attending on the preaching

of whites, as well as of blacks, were more numerous; and partly

attended by them, and the campmeetings which occurred from time to

time, and partly from studying carefully my own heart, and observing

the developments of character around me, in all the stations of life

which I could watch, I became better acquainted with those religious

feelings which are deeply implanted in the breast of every human

being, and learnt by practice how best to arouse them, and keep them

excited, and in general to produce some good religious impressions on

the ignorant and thoughtless community by which I was surrounded.... I

cannot but derive some satisfaction, too, from the proofs I have had

that my services have been acceptable to those to whom they have been

rendered. In the course of the three years from 1825 to 1828 I availed

myself of all the opportunities of improvement which occurred and was

admitted as a preacher by a conference of the Methodist Episcopal

Church."[376]

In Ballard County there was another interesting exhorter. Advertising

for his Negro Jack who had run away in 1850, C. B. Young pointed out

that although he was a slave and the property of the "subscriber" he

was a well-educated Baptist preacher and in the pursuit of his

vocation he was well known by "many of the citizens of Paducah,

McCracken County, and also by citizens of Hickman and Fulton Counties,

and is thought by many to be a free man."[377]

The only credentials which the Negro preacher carried, according to

his own testimony, came directly from the Lord. His education was only

of a sufficient character to enable him to read the Bible and line out

the words of the hymns. His creed was never the creation of any school

of theology. It was usually an original interpretation of supernatural

phenomena varying widely even in one individual from time to time.

Convinced of his supernatural calling, he felt inferior to no one in

the power of exegesis. As long as he held his balance and remained on

terra firma his followers believed in him as he believed in himself.

But as Lucius Little has well said: "Once in a while a colored

preacher lost his influence with his congregation by drinking too

deeply of the Pierian spring. Too much learning raised him out of

their orbit. They fell on stony ground." Strange, yet how true, that

the more ignorant a slave minister was, the more power of influence

for good he had among his fellow human beings.[378]

James Lane Allen has given us a splendid little sketch of three of

these native characters whom he evidently knew in his younger days:

"One of these negro preachers was allowed by his master to fill a

distant appointment. Belated once, and returning home after the

hour forbidden for slaves to be abroad, he was caught by the

patrol and cruelly whipped. As the blows fell, his words were,

'Jesus Christ suffered for righteousness' sake; so kin I."

Another was recommended for deacon's orders and actually

ordained. When liberty came, he refused to be free, and continued

to work in his master's family until his death. With considerable

knowledge of the Bible and a fluent tongue, he would nevertheless

sometimes grow confused while preaching and lose his train of

thought. At these embarrassing junctures it was his wont suddenly

to call out at the top of his voice, "Saul, Saul. Why persecutest

thou me?" The effect upon his hearers was electrifying:--as none

but a very highly favored being could be thought worthy of

enjoying this persecution. He thus converted his loss of mind

into spiritual reputation.

A third named Peter Cotton, united the vocations of exhorter and

wood-chopper. He united them literally, for one moment Peter

might be seen standing on his log chopping away, and the next

kneeling down beside it praying. He got his mistress to make him

a long jeans coat and on the ample tails of it to embroider, by

his direction, sundry texts of scripture, such as "Come unto Me,

all ye that are heavy laden." Thus literally clothed with

righteousness, Peter went from cabin to cabin, preaching the

Word. Well for him if that other Peter could have seen him."[379]

One of the dominant features of such a type of religion among the

Negroes was the resulting prevalence of superstition. It almost seems

that in their ignorance they adopted every form of supernatural fear

that was ever known among our ancestors. But if it had ended there the

matter would not have been so important socially. In their constant

association with white children they brought their fears of

"ghost-hauntings" and other fantastic ideas into the minds of the very

young. The peculiarity of the Negro slave as compared with the other

superstitious races was his own sinister imaginative productions. They

related none of the valuable tales of ancient mythology, but rather

did they fill the earth with goblins, witches and ghosts--the result

of their own dreams and fancies.[380]

The many stories of this sort which a "mammy" related to a child a

half century ago can be reproduced by the old man of the twentieth

century and the effect of the old ideas of magic is still with him.

The prevalence of superstitious ideas in Kentucky today might easily

be traced back to the associations of slavery times. But such a

weakness may not always have done harm; not every child was so

influenced. The natural play of the Negro instinct was worth much to

his peace and contentment. Here again Shaler has given us a rather

unique observation from his own experience:

"The only movements of the spirit in the religious field that I

can remember came from two sources: my mother's singing.... The

other spiritual influence came from the negroes. A number of them

used to meet at night to talk religion beneath a shed which lay

open to the northern sky. One of them, well named "Old Daniel,"

had a fervid imagination and excellent descriptive powers. He

would picture the coming of the great angel as if it were before

his eyes; the path of light shooting down from about the North

star,--the majesty of his train. Then the rolling of the heavens

"like a scroll"--I did not know what this process was like, but

it seemed vaguely fine--and then the burning up of the world. I

was always greatly moved when hearing these exhortations which

must indeed have been rather wonderful things, but they made no

permanent impression upon me. In fact I regarded them as 'nigger

talk.'"[381]

The patriarchal character of slavery as it existed in Kentucky is best

shown in the relationship which generally existed between the master

and his slave. The pioneers who brought their slaves with them from

Virginia encountered many dangers not only in crossing the mountains

but after they had settled in the new State. Many were the times when

the slave proved himself a hero and even encountered death in order to

protect the master and his family. Tradition and history have handed

down many of these stories to us, but the most famous of all, as well

as the best authenticated, was the experience of Monk Estill, who was

the slave of Colonel James Estill, of Madison County. In a struggle

with the Indians in 1782 in the region where Mount Sterling is now

located Monk cried out to his master in the thick of the fray: "Don't

give way, Marse Jim; there's only twenty-five of the Injuns and you

can whip them." Colonel Estill was killed and Monk was taken prisoner

but he soon managed to escape, and after joining his comrades carried

one of the wounded men twenty-five miles. The young master was so

grateful to Monk that he gave him his freedom and kept him in the best

of comfort the rest of his life. This was the experience of what is

supposed to have been the first slave in the district of

Kentucky.[382]

Not only was the slave on a par with his master when it came to facing

dangers but even in the field of sports he had as pleasant an outing

as his overlord. While the one may have spent the day in fox hunting

or deer driving, when nightfall came the Negro was apt to emerge from

his quarters followed by his faithful dog in search of possum or coon.

While the master may have enjoyed a feast of venison at his table the

Negro was just as well satisfied with the less valuable but savory

game that graced his own meal.

With the exception of the house servants most of the slaves of the

State were employed in agricultural pursuits, but, as we have seen

elsewhere, even here they were not to be found in large droves as in

the States of the South. There were only a few big landed estates

which were cultivated by the owners under their own supervision and in

the large majority of cases the field slaves worked side by side with

the whites. Often an owner's circumstances compelled him to labor in

the fields with his slaves and when doing so he rarely demanded more

of them than he did himself. Such a condition was not only true in the

early days when there were few slaves but it extended throughout the

slavery era.[383] The stories of the mildness of the institution in

Kentucky which reached the North were little accredited by the radical

element, which could never see any virtue in servile labor. Perhaps

the most zealous abolitionist who visited the State was J. W.

Buckingham, who wrote in 1840 that the "condition of the Negroes, as

to food, clothing, and light labor struck me as being better in

Kentucky than in any other State."[384] While traveling in the heart

of the slave section of the State between Frankfort and Louisville he

saw many instances of black and white laborers, slave and free,

working side by side in the same field.[385]

The relation between the owner and the household type of slave was of

a more intimate nature and the master was careful to pick only the

best of the Negroes. In such an environment we see the picture of the

Kentucky gentleman of song and story, and the Negro in all the best

that tradition has related of him. The latter became identified with

the family of the master in sentiment and feeling. Under ordinary

circumstances he had nothing to worry about, and with no cares

pressing upon him, he became as happy as any Negro ever was. If the

crops failed, or the owner became bankrupt he had none of the anxiety

of his master, although he may have displayed the greatest sympathy

with the existing condition. It was his duty to give only his labor to

his master and in return he was sheltered, clothed and supported when

sick or too old to labor; and at last when his earthly toils were

over, he was given a Christian burial. The humble affection which the

slave had for his master in conjunction with the extreme confidence

which he held for the outcome of all pecuniary troubles is shown by

instances in the life history of every slaveholding family. No matter

what might be the circumstances and conditions of the estate the slave

could go on in his daily work without any fears or cares, except for

the one great cloud that in the event of a disruption of the estate

through a legal process he might be sold to satisfy his master's

creditors.

From our present viewpoint the treatment may have been at times rather

harsh but we must be careful to judge it from the general standard of

those times. It has been pointed out that it would bear "favorable

comparison with the treatment of the white sailors in the British and

American navies of the same period."[386] The slave code allowed a

much severer policy than was generally carried out, for it must be

considered that the law was made to fit the worst cases, where such

action was justifiable. Often the attitude of the master appeared

harsher than it was really meant to be. It may have been merely a

display of authority on his part when he reprimanded a servant who

had really committed only a minor indiscretion.[387]

There were naturally other scenes in which the treatment of slaves

would not appear in such a favorable light. The chronically bad

master, however, was at all times and under all circumstances under

the ban of a just public sentiment. Should, by chance, a slave under

such a one secure vengeance on his heartless overlord, the general

feeling of the community was on the side of the slave. Strange to say,

it was very often true that persons who had known little concerning

slavery until they came to Kentucky, as soon as they had accumulated a

sufficient surplus, became the owners of slaves and proved to be the

hardest taskmasters.[388] Much light is thrown on this situation by

Shaler. "There is a common opinion," said he, "that the slaves of the

Southern households were subjected in various ways to brutal

treatment. Such, in my experience, was not the case. Though the custom

of using the whip on white children was common enough, I never saw a

negro deliberately punished in that way until 1862, when, in military

service, I stayed at night at the house of a friend. This old man,

long a widower, had recently married a woman from the state of Maine,

who had been the governess of his children. In the early morning I

heard a tumult in the back yard, and on looking out saw a negro man,

his arms tied up to a limb of a tree, while the vigorous matron was

administering on his back with a cowhide whip. At breakfast I learned

that the man had well deserved the flogging, but it struck me as

curious that in the only instance of the kind that I had known the

punishment was from the hands of a Northern woman."[389] Shaler lived

in Campbell County in the extreme northern section of the State, where

there were only a few slaves and the treatment was milder perhaps than

in any other part of Kentucky.

The general attitude is best shown by the two laws passed in 1816 and

1830. It had always been considered that the slave, being the property

of his owner, it remained for him and for him alone to serve as the

disciplinarian of the Negro. The increasing abuse of this right by

outsiders led to a law in 1815 giving the owners a power of action

against persons abusing their slaves, and in February, 1816, the

provisions were made more specific. If any person should "whip, strike

or otherwise abuse the slave of another" without the owner's consent,

the latter could recover damages in any circuit court in the

commonwealth--regardless of whether or not the punishment so inflicted

injured the ability of the slave to render service to his master.[390]

Some of the contemporary comment would seem to imply that the theory

of the law was based on the property conception of the slave and not

upon humanitarian motives. In other words, it was perfectly proper to

punish any slave as one saw fit as long as one did not interfere with

the property value of the _servant_. Fearon, while visiting the State

in 1818, came across an example of this kind and after telling the

story of the punishment makes this comment: "It appears that this boy

(the one who had been whipped) was the property of a regular

slave-dealer, who was then absent at Natchez with a cargo. Mr. Lawe's

humanity fell lamentably in my estimation when he stated, that

'whipping niggers, if they were his own, was perfectly right, and they

perhaps deserved it; but what made him mad was, that the boy was left

under his care by a friend, and he did not like to have a friend's

property injured.'"[391] The conduct observed by Fearon was clearly in

violation of the law of 1816, unless the absent master had given over

his rights in full to the man Lawe, who administered the punishment.

It may have been the spirit of the laws of Kentucky that Lawe had in

mind when he spoke to Fearon. On the other hand, it could easily be

given the interpretation which Fearon made. The trend of public

opinion was more and more in the interest of justice for the slave as

the law of 1830 shows:

If any owner of a slave shall treat such slave cruelly, so as in

the opinion of the jury, to endanger the life or limb of such

slave, or shall not supply his slave with sufficient food or

raiment, it shall and may be lawful for any person acquainted

with the fact or facts, to state and set forth in a petition to

the Circuit Court, the facts, or any of them aforesaid, of which

the defendant hath been guilty, and pray that such slave or

slaves may be taken from the possession of the owner, and sold

for the benefit of such owner, agreeably to the 7th article of

the Constitution.[392]

In accordance with this law, if a jury of twelve men were convinced

that a master treated his slave cruelly, or failed to provide him the

proper food and clothing, the slave would be sold into better hands

and the master would have to pay the costs of the suit. Most assuredly

there was no place in the eyes of the law for an inhuman slaveholder.

Not only was such a one a criminal in the eyes of the courts but he

was socially ostracized in the ordinary circles of the community.[393]

Two instances of this kind in Lexington will show the public feeling.

In 1837 Mrs. Turner, the wife of a wealthy Lexington judge, was

accused of inhuman cruelty. Her own husband was the chief complainant,

stating that "that woman has been the cause of the death of six of my

servants by her severities." The trial caused intense excitement among

the people of Lexington, more so perhaps for the reason that the

defendant was a member of a prominent Boston family and her husband

was a former judge of the criminal court in New Orleans. The court

proceedings were brought to an end when the woman was pronounced

insane and placed in the asylum.[394]

Early in 1839 a Mr. and Mrs. Maxwell were tried in Lexington for the

inhuman treatment of a female slave servant. The indignation of the

citizens of Lexington is apparent from the publicity that was given to

the proceedings in the local papers. A Dr. Constant testified that he

saw Mrs. Maxwell whipping the Negro severely, without being particular

whether she struck her in the face or not. The lacerations had brought

blood in considerable quantities for he had found some on the steps.

He had noticed previously that the slave had been thinly clad and was

barefooted even in cold weather. During the previous months he had

noticed several scars on her and at one time she had had one eye tied

up for a week. A Mr. Winters was once passing along the street and saw

one of the boys whipping the slave girl with a cowhide. Whenever she

turned her face to him he would hit her across the face either with

the butt end or small end of the whip to make her turn around square

to the lash, in order that he might get a fair blow at her. A Mr. Say

had noticed several wounds on her person, chiefly bruises. Capt.

Porter, the keeper of the workhouse, thought the injuries on Milly's

person were very bad, some of them appeared to be burns, and some were

bruises or stripes from a cowhide whip. The trial was held amidst a

turmoil of resentment against the defendants and there was apparently

no one in sympathy with them whatever.[395]

Any discussion of the relationships in slavery times would be

incomplete without adding the characterisation of the Kentucky master

as drawn by a celebrated author who was born in the heart of the

bluegrass and was thoroughly familiar with the type:

"The good in nature is irrepressible. Slavery, evil as it was,

when looked at from the remoteness of human history as it is to

be, will be judged an institution that gave development to a

certain noble type of character.

"Along with other social forces peculiar to the age, it produced

in Kentucky a kind of farmer the like of which will never appear

again. He had the aristocratic virtues: highest notions of

personal liberty and personal honor, a fine especial scorn of

anything that was little, mean, cowardly. As an agriculturist he

was not driving or merciless or grasping; the rapid amassing of

wealth was not among his passions, the contention of splendid

living not among his thorns. To a certain carelessness of riches

he added a certain profuseness of expenditure; and indulgent

towards his own pleasures, towards others, his equals or

dependents, he bore himself with a spirit of kindness and

magnanimity. Intolerant of tyranny, he was no tyrant. To say of

such a man, as Jefferson said of every slave-holder, that he

lived in the perpetual exercise of the most boisterous passions

and unremitting despotism, and in the exaction of the most

degrading submission, was to pronounce judgment hasty and unfair.

"Rather did Mrs. Stowe, while not blind to his faults, discern

his virtues when she made him, embarrassed by death, exclaim: "If

anybody had said to me that I should sell Tom down south to one

of those rascally traders, I should have said, 'Is thy servant a

dog that he should do this thing?'"[396]

FOOTNOTES:

[356] _Lexington Gazette_, August 23, 1803.

[357] _Louisville Public Advertiser_, July 10, 1824.

[358] _Louisville Weekly Journal_, October 15, 1845.

[359] _Ibid._, October 22, 1845.

[360] _Ibid._, September 27, 1848.

[361] _Ibid._, May 16, 1849.

[362] _Ibid._, December 10, 1851.

[363] _Ibid._, December 22, 1852.

[364] _Lexington Gazette_, April 12, 1806.

[365] The best contemporary treatment of this subject in general is by

Dr. R. J. Spurr--the sole printed text being in Perrin's _History of

Bourbon County_, pp. 59-60.

[366] Buckingham, _Eastern and Western States_, Vol. 3: 41.

[367] _Louisville Public Advertiser_, August 11, 1824.

[368] _Lexington Gazette_, June 14, 1803.

[369] _Lexington Intelligencer_, July 7, 1838.

[370] Perrin (Bourbon County), p. 60.

[371] _Harper's Magazine_, October, 1884, pp. 730-738.

[372] Clarke, _Sufferings of Lewis and Milton Clarke_, p. 104.

Rothert, _History of Muhlenburg County_, p. 104. Perrin (Bourbon

County), p. 60.

[373] _Address to the People of Kentucky_, p. 8.

[374] _Presbyterian Herald_, April 16, 1846. See especially the

editorial and articles in the issue of October 4, 1849.

[375] Rothert, _History of Muhlenburg County_, p. 340.

[376] Henson, _Life of Josiah Henson_, pp. 26-27.

[377] _Louisville Weekly Journal_, March 27, 1850.

[378] Little, L. P., _Ben Hardin, his Times and Contemporaries_, pp.

544-545.

[379] Allen, James Lane, _Blue Grass Region of Kentucky_, pp. 77-78.

[380] Robertson's _Autobiography_, pp. 124-125.

[381] Shaler's _Autobiography_, pp. 57-58.

[382] Collins, _History of Kentucky_, Vol. 2, pp. 634-636.

[383] Cotterill, _History of Pioneer Kentucky_, p. 245. Little, L. P.,

_Ben Hardin, his Times and Contemporaries_, p. 543.

[384] Buckingham, _Eastern and Western States_, Vol. 3: 7-8.

[385] _Op. cit._, Vol. 3: 8.

[386] Little, L. P., _Ben Hardin, his Times and Contemporaries_, pp.

541-2.

[387] A typical example of this has been related by one of Kentucky's

distinguished sons:

"In the households where I was intimate the slaves were about on the

same footing as the other members of the family; they were subjected

to sudden explosions of the master's temper much as were his children.

I well remember a frequent scene in my grandfather's house, where it

was the custom that I should go every Sunday afternoon for counsel and

instruction. They were at first somewhat fearsome occasions for a

little lad thus to be alone with an aged and stately grandfather. I

soon won his interest, in some measure by my fears, and came greatly

to enjoy the intercourse, for he knew how to talk to a boy, and we

became, in a way, boys together, in our sense of the funny side of

things. It was the custom, too, for him to divide the session of three

or four hours with a brief nap taken in his chair....

"As his rooms were near the negro quarter he would make ready for his

siesta by sending forth the servantman who waited on him, bidding him

tell the people that they were to keep quiet during the performance. I

can see him now with his pig-tail hanging down behind the back of the

easy chair and a handkerchief over his face as he courted slumber. For

a minute or two it would be still, then the hidden varlets would be as

noisy as before. Then the pig-tail would begin to twitch, and he would

mutter: 'Jim, tell those people they _must_ be still.' Again a minute

of quiet, and once more the jabbering and shouting. Now with a leap he

would clutch his long walking-stick and charge the crowd in the

quarter, laying about him with amazing nimbleness, until all the

offenders were run to their holes. Back he would come from his

excursion and settle himself to sleep. I could see that his rage was

merely on the surface and that he had used it for a corrective, for he

evidently took care not to hurt anyone." Shaler's _Autobiography_, p.

37.

[388] Little, L. P., _Ben Hardin, his Times and Contemporaries_, p.

543.

[389] Shaler's _Autobiography_, pp. 36-37.

[390] _Littell's Laws_, Vol. 5: 578-579.

[391] Fearon, _Sketches in America_, p. 241.

[392] Session Laws, 1830, p. 174.

[393] Blanchard and Rice, _Debate on Slavery_, p. 135.

[394] _American Slavery As It Is_, p. 87.

[395] _Lexington Reporter_, January 15, 1809.

[396] Allen, James Lane, _Blue Grass Region of Kentucky_, pp. 67-68.

CHAPTER V

PUBLIC OPINION REGARDING EMANCIPATION AND COLONIZATION

Although the facts herein set forth indicate that slavery in Kentucky

was a comparatively mild form of servitude it is not the aim here to

leave the impression that the anti-slavery element found no grounds

for attacking the institution. On the contrary, there were various

elements that devised schemes for exterminating the institution. This

was especially true of the churches, which represented more than any

other one force the sentiment of the State on the subject of

emancipation. The three prominent Protestant denominations of the

State were the Presbyterians, the Baptists, and the Methodists. The

only one of the three which maintained a general continuous policy

throughout the early nineteenth century on the question of slavery was

the Presbyterian.

It was on the eve of the first Constitutional Convention of 1792 that

David Rice, at that time the leader of the Presbyterians in Kentucky,

published a pamphlet under the nom-de-plume of PHILANTHROPOS entitled

_Slavery Inconsistent with Justice and Good Policy_. While the author

went into the general evils of slavery, such as the lack of protection

to female chastity, lack of religious and moral instruction, and the

comparative unproductiveness of slave labor, he was not one of those

violent opponents of the institution, who would abolish the whole

system without any constructive measures. A large part of his treatise

was devoted to the supposed sanction of the scriptures and his own

evidence that the same source was against rather than in favor of the

system then in vogue. It was but natural that Rice should recommend

that the convention should put an end to slavery in Kentucky in view

of his firm opinions in the matter, but he had a clear vision of the

future and he expressed his conviction that "a gradual emancipation

only can be advisable." He summed up his ideas in this sentence: "The

legislature, if they judged it expedient, would prevent the

importation of any more slaves; they would enact that all born after

such a date should be free; be qualified by proper education to make

useful citizens, and be actually freed at a proper age."[397] He put

these ideas forth as a citizen of Kentucky who was interested in its

welfare and as a prospective member of the constitutional convention.

When that body assembled at Danville he did not hesitate to voice his

views again but the forces of slavery were dominant and the majority

enacted the famous article IX, which determined the slave code of the

State until the institution was abolished by the 13th amendment to the

federal constitution. The significance of the attitude of David Rice

lies in the fact that as early as the year 1792 he put forth the idea

of gradual emancipation, a policy far in advance of his age but which

in the course of time was held by a large number of the fair-minded

statesmen of Kentucky.

In 1794 the Transylvania Presbytery, which was the governing body of

that sect at that time for the whole State, passed a resolution asking

that slaves should be instructed to read the Bible, having in view the

sole idea that when freedom did come to them they would be prepared

for it.[398] The same body in 1796 expressed the following fair-minded

attitude in the form of a resolution:

Although the Presbytery are fully convinced of the great evil of

slavery, yet they view the final remedy as alone belonging to the

civil powers; and also do not think that they have sufficient

authority from the word of God to make it a term of Christian

communion. They, therefore, leave it to the consciences of the

brethren to act as they may think proper; earnestly recommending

to the people under their care to emancipate such of their slaves

as they may think fit subjects of liberty; and that they also

take every possible measure, by teaching their young slaves to

read and give them such other instruction as may be in their

power, to prepare them for the enjoyment of liberty, an event

which they contemplate with the greatest pleasure, and which,

they hope, will be accomplished as soon as the nature of things

will admit.[399]

In the year 1797 the same organization decided that slavery was a

moral evil but on the question of whether those persons holding slaves

were guilty of a moral evil they decided in the negative. As to what

persons were guilty they were unable to decide and the matter was

postponed for future action.[400]

As early as 1800 the West Lexington Presbytery pointed to the trouble

and division which slavery was likely to cause among the churches, but

they were unable to come to any decision upon the exclusion of

slaveholding members from church privileges and in a letter to the

Synod of Virginia they asked for the judgment of higher ecclesiastical

authorities.[401] In 1802 the same body decided on a policy of

non-interference with the rights of the slaveholding members of the

church.[402]

Beginning in 1823 the Synod of Kentucky advocated the cause of the

American Colonization Society. Their general attitude on the slavery

question was an open one as late as the year 1833 when they adopted a

resolution to the effect that "inasmuch as in the judgment of the

Synod it is inexpedient to come to any decision on the very difficult

and delicate question of slavery as it is within our bounds;

therefore, resolved, that the whole matter be indefinitely

postponed."[403] The vote on this resolution stood 41 to 36.

The enactment of the law of 1833 forbidding the importation of slaves

into Kentucky seems to have induced the Synod to take a step in

advance, for when they next met in 1834 at Danville they adopted by

the decisive vote of 56 to 7 a resolution calling for the appointment

of a committee of ten to draw up a plan for the instruction and future

emancipation of slaves in the State.[404] The following year this

committee published a 64-page pamphlet entitled "An Address to the

Presbyterians of Kentucky proposing a plan for the instruction and

emancipation of their slaves." Many editions of this work were

published throughout the country even as late as 1862 when it was

issued by the United Presbyterian Board of Publication in Pittsburgh.

It was heralded throughout the northern section of the United States

as a very able document and was regarded all the more valuable because

it was published in a slaveholding State. The major portion of the

pamphlet was taken up with the general arguments setting forth the

evils of the slavery system but in the last few pages they set down

their plan for the gradual emancipation of the slaves in Kentucky--the

most able contribution towards a reconstruction of the existing social

system in the State which had been made up to that time.

"The plan, then, which we propose is, for the master to retain during

a limited period, and with regard to the welfare of the slave, that

authority which he before held, in perpetuity, and solely for his own

interest. Let the full liberty of the slave be secured against all

contingencies, by a recorded deed of emancipation, to take effect at a

specified time. In the meanwhile, let the servant be treated with

kindness--let all those things which degrade him be removed--let him

enjoy means of instruction, let his moral and religious improvement be

sought--let his prospects be presented before him, to stimulate him to

acquire those habits of foresight, economy, industry, activity, skill

and integrity, which will fit him for using well the liberty he is

soon to enjoy." The actual plan of potential freedom was stated

briefly in these words: "(1) We would recommend that all slaves now

under 20 years of age, and all those yet to be born in our possession,

be emancipated as they severally reach their 25th year. (2) We

recommend that deeds of emancipation be drawn up, and recorded in our

respective county courts, specifying the slaves whom we are about to

emancipate, and the age at which each is to be free. (3) We recommend

that our slaves be instructed in the common elementary branches of

education. (4) We recommend that strenuous and persevering efforts be

made to induce them to attend upon the ordinary services of religion,

both domestic and public. (5) We recommend that great pains be taken

to teach them the Holy Scriptures; and that, to effect this the

instrumentality of Sabbath Schools, wherever they can be enjoyed, be

united with that of domestic instruction."[405]

This appeal was not to the officials of the State but to the members

of a particular religious body by its governing organization. The

success or failure of the plan depended entirely upon the individual

slaveholder's attitude in the matter. The committee added this

sentence by way of explanation: "These are measures which all ought to

adopt; and we know of no peculiarity of circumstances in the case of

any individual which can free him from culpability if he neglects

them."[406]

The sentiments embodied in this appeal were not, however, any

indication of the feeling among the slaveholding Presbyterians of the

State nor were they expressive of the Synod itself, for that body

never took any action upon the address, it being the work of the

committee of ten entirely.[407] Davidson, writing in 1847, made the

following comment on the sentiment of the church people in Kentucky at

that time. "In the morbid and feverish state of the public mind, it is

not to be concealed, that by some they (the Committee) were considered

as going to an unwarrantable and imprudent length. The northern

abolitionists were waging a hot crusade against slavery, sending out

itinerant lecturers, and loading the mails with inflammatory

publications. Their measures were marked with a fanatical virulence

rarely exhibited, and the people were exasperated beyond forbearance

... the effects were truly disastrous. The prospect of emancipation

was retarded for years. The laws bearing on the slave population were

made more stringent than ever, and their privileges were curtailed.

In Kentucky, the religious meetings of the blacks were broken up or

interrupted and their Sabbath schools dispersed."[408]

When the subject of emancipation was under discussion in the Kentucky

Synod one of the elders arose and stated that he owned one hundred

slaves, nearly all of whom he had inherited. Many of them were so old

that they could not provide for themselves, others were women and

children whom no one was willing to feed and clothe for their labor.

He stated emphatically that he had no desire to hold them in bondage,

but that he was willing to do whatever was best for the slaves

themselves. If he should free them, what would become of the aged and

the women and children? Furthermore, it was a serious matter to give

bond and security for the support of so many slaves of different ages

and character. He could not send them out of the State, for they were

intermarried with the slaves of others; and as to giving them wages,

he could not, for they were eating him up as it was. With a feeling of

intense interest in the slave and anxiety on his own behalf to do the

right, he asked his brethren of the Synod, what he ought to do.[409]

The position of this kind-hearted Kentucky slaveholder shows more

clearly than any other picture we could draw the difficulties of

emancipation in Kentucky even when one was convinced of the evils of

the slavery system.

The final word of the Presbyterian Church on the whole subject of

slavery was sounded at its General Assembly in Cincinnati in 1845,

when a resolution was adopted, as submitted by Nathan L. Rice, of

Kentucky, stating that it was not competent for the church to

legislate where Christ and his apostles had not legislated. This, at

least for the time being, proved acceptable to the churches south of

the Ohio and avoided a breach in the Presbyterians such as had just

taken place among the Methodists and Baptists.