FOOTNOTES:

Griffin45 years of age$ 640Mary14 years of age1,060Ellen12 years of age800Elizabeth11 years of age406(one-eyed)Sanford9 years of age700Arabel10 years of age690Adam41 years of age700Bettie3 years of age260Aaron28 years of age1,191Sam25 years of age1,350

The auction of the slaves of the estate of Spencer C. Graves at Lexington in April, 1859, brought these prices:[280]

John18 years of age$1,500Dick21 years of age1,400Jerry38 years of age700Major50 years of age480Charles31 years of age1,155John Jr18 years of age1,140Billy31 years of age1,100Isabella40 years, with 3 children,ages 11, 5 and 21,610Rebecca30 years, with 3 children,ages 11, 6 and 42,410Lucy18 years of age, with infant1,280Davidella31 years of age1,220Mary Ann31 years of age835Patience18 years of age1,350Catharine15 years of age1,130

Such a series of prices would show beyond a reasonabledoubt that the value of slaves was determined entirely by the increasing demand for slaves in the lower South and was in no way an indication of the value of slave labor within Kentucky. As was pointed out earlier in this chapter, the labor value of an agricultural slave in the State steadily decreased after about the year 1830.

Was slavery profitable to the Kentucky planters? In the many debates on the slavery question which took place after 1830 no one ever stood out in the affirmative. The only ones to discuss the economic side of the issue were those in opposition to slavery. As has often been said of the Kentucky situation, "the program was to use negroes to raise corn to feed hogs to feed negroes, who raised more corn to feed more hogs." Tobacco was the largest crop raised in the State and corn came next. Neither proved to be peculiarly adapted to slave labor. There were few large plantations in the State where it could be made advantageous. What Negro work there was to be done was never confined to any particular kind of cultivation but was used in the manner of farm labor today in the State. Squire Turner, of Madison County, in the Constitutional Convention of 1849 made a careful summary of the existing economic problems of slavery. "There are," said he, "about $61,000,000 worth of slave property in the state which produces less than three per cent profit on the capital invested, or about half as much as the moneyed capital would yield. There are about 200,000 slaves in Kentucky. Of these about seventy-five per cent are superannuated, sick, women in unfit condition for labor, and infants unable to work, who yield no profit. Show me a man that has forty or fifty slaves on his estate, and if there are ten out of that number who are available and valuable, it is as much as you can expect. But my calculation allows you to have seventy-five per cent who are barely able to maintain themselves, to pay for their own clothing, fuel, house room and doctor's bills. Is there any gentleman who has a large number of slaves, who will say that they are any more profitable than that?"[281]

No one in the convention answered the last question put by Squire Turner. But regardless of such an economic condition, not a single piece of remedial legislation was passed and the members of the Constitutional Convention added a provision to the Bill of Rights which rooted the slavery system firmer than ever. That most admirable of all southern characters, and at the same time the most difficult to understand, the Kentucky master, took little heed of a question of dollars and cents when it interfered with his moral and humanitarian sentiments. He had inherited, in most cases, the slaves that were his. He knew well enough that the system did not pay but supposing that he should turn his slaves loose, what would become of them? What could they do for a living? The experience of later years proved that his apparently obstinate temperament was mixed with a good deal of wisdom, for once the slaves were set free their status was not to any great extent ameliorated if they went abroad from the plantation where they had lived from childhood.

There was a certain amount of profit in the labor of able-bodied slaves but they only represented a fraction of the Negroes whom the master was called upon to support. The law compelled the owner to maintain his old and helpless slaves and this represented the spirit of the large majority of the slaveholders. Those were rare cases indeed when an owner was hailed into court for failing to provide for an infirm member of his slave household. The true Kentuckian never begrudged the expense that such support incurred. One of the ablest lawyers of the State, Benjamin Hardin, made the statement that "if it were not for supporting my slaves, I would never go near a courthouse."[282]

Rev. Stuart Robinson, speaking before the Kentucky Colonization Society in 1849, gave another viewpoint of the economic value of the slave. "The increase of slaves in Kentucky," said he, "has hardly reached three thousand annually for eighteen years past. The increase since 1840 has been 27,653—the increase for the year just closed 2,921.In twenty-six counties, embracing one fourth of the slave population—some of them the largest slave-holding counties—there has been an actual decrease in the last year of 881 slaves. In twelve other counties the increase has been only twenty-three. There are ten counties in the State, which contain one third of all the slave population of Kentucky; in these ten counties, the increase of slaves for five years past has been 2,728—an increase of less than one per cent per annum. Nor is this slow increase of slavery to be attributed to any stagnation or decline of public prosperity, for in the meantime the state has been growing in population and wealth as heretofore. During these five years the taxable property of the Commonwealth has increased in value more than seventy-six millions. Now this decrease of slaves while the other property of the commonwealth is increasing must arise from one of three causes—and in either case the inference is the same as to the fate of slavery in Kentucky. (1) Is it because the climate is unhealthy to the African? If so then African labor cannot continue. (2) Is it owing to emigration? Then something is wrong in the system of labor, that causes the emigration of our people—for no finer soil—no more desirable residence can be found in the world. (3) Or is it owing to the domestic slave trade? Then for some reason slave labor is less profitable here than elsewhere, and must soon be given up."[283]

These figures quoted by the speaker on the slave population for year by year are available in the auditor's tax books for the years 1840 to 1859:[284]

1840164,8171841168,8531842171,0351843176,1071844178,8371845182,7421846185,5821847189,5491848192,4701849195,1101850196,8471851196,3361852200,8671853200,0151854200,1811855202,7901856201,1601857201,5901858207,5591859208,625

The very small growth shown here would barely account for the natural increase among the slaves by virtue of the high birth rate. The mortality rates were about the same for slaves as for whites. The relative decline was undoubtedly due to the rising prices for slaves which were sent to the South and the consequent decreasing value of a slave's labor to the Kentuckian. He knew beyond a doubt that the time would eventually come when he would have to part with his slave and that portion of the holders who were not averse to selling their chattels did so during this period.

FOOTNOTES:[234]Hening's Statutes, Vol. X, p. 50.[235]Hening's Statutes, Vol. XI, p. 309; Treat, P. J.,National Land System, p. 235.[236]Ibid., Vol. X, pp. 35-45.[237]Winterbotham,An Historical Geographical Commercial and Topographical View of the United States, Vol. 3, pp. 156-157.[238]Kentucky Land Grants, Book 13, p. 59.[239]Ibid., Book 8, p. 228.[240]Shaler'sAutobiography, p. 33.[241]Michaux (Thwaite's Reprint),Travels to the West of the Allegheny Mountains, Vol. 3, p. 237.[242]Shaler, N. S.,Kentucky, p. 196.[243]Includes 182 Indians.[244]Includes 33 Indians.[245]Greeley, Horace,Writings, Speeches and Addresses of Cassius M. Clay, p. 177.[246]Collected Documents, 1847, p. 581.[247]De Bow'sStatistical Review, p. 95.[248]Adapted from De Bow'sStatistical Review, pp. 67, 85, 99.[249]Stowe,Key to Uncle Tom's Cabin, p. 143.[250]Louisville Weekly Journal, October 17, 1849.[251]Shaler'sAutobiography, p. 36.[252]Louisville Public Advertiser, December 24, 1829.[253]Lexington Observer and Kentucky Reporter, February 27, 1834.[254]Louisville Weekly Journal, March 4, 1846.[255]Louisville Weekly Journal, September 3, 1845.[256]Lexington ObserverandKentucky Reporter, Jan. 28, 1835.[257]Ibid., July 9, 1834.[258]Lexington ObserverandKentucky Reporter, Jan. 7, 1835.[259]Louisville Weekly Journal, August 6, 1845.[260]Bairdstown Candid Review, June 20, 1809.[261]Louisville Weekly Journal, May 2, 1849.[262]Louisville Weekly Journal, September 26, 1849.[263]Lexington Western Luminary, June 5, 1833.[264]Blanchard and Rice,Debates on Slavery, p. 133.[265]Louisville Weekly Journal, July 30, 1845.[266]Ibid., July 19, 1848.[267]Ibid., August 14, 1850.[268]Ibid., August 2, 1848.[269]St. Louis Daily Times, October 14, 1852.[270]Louisville Daily Journal, November 23, 1848.[271]Louisville Public Advertiser, November 2, 1825.[272]Ibid., September 13, 1826.[273]Louisville Daily Times, March 1, 1854.[274]Slavery and Internal Slave Trade in the U. S., p. 12.[275]Martin, Asa E.,Anti-Slavery Movement in Kentucky, p. 89.[276]Collins,History of Kentucky, Vol. 1, p. 74.[277]Cynthiana News, January 10, 1858.[278]Henderson Weekly Commercial, January 29, 1858.[279]Georgetown Gazette, December 23, 1858.[280]Weekly Free South(Newport), April 29, 1859.[281]Debates of the Convention of 1849, p. 73.[282]Little, L. P.,Ben Hardin, his Times and Contemporaries, p. 544.[283]Presbyterian Herald, April 12, 1849.[284]Collected Documents, 1847, pp. 581-583; 1853, pp. 401-403; 1860, pp. 241-246.

[234]Hening's Statutes, Vol. X, p. 50.

[235]Hening's Statutes, Vol. XI, p. 309; Treat, P. J.,National Land System, p. 235.

[236]Ibid., Vol. X, pp. 35-45.

[237]Winterbotham,An Historical Geographical Commercial and Topographical View of the United States, Vol. 3, pp. 156-157.

[238]Kentucky Land Grants, Book 13, p. 59.

[239]Ibid., Book 8, p. 228.

[240]Shaler'sAutobiography, p. 33.

[241]Michaux (Thwaite's Reprint),Travels to the West of the Allegheny Mountains, Vol. 3, p. 237.

[242]Shaler, N. S.,Kentucky, p. 196.

[243]Includes 182 Indians.

[244]Includes 33 Indians.

[245]Greeley, Horace,Writings, Speeches and Addresses of Cassius M. Clay, p. 177.

[246]Collected Documents, 1847, p. 581.

[247]De Bow'sStatistical Review, p. 95.

[248]Adapted from De Bow'sStatistical Review, pp. 67, 85, 99.

[249]Stowe,Key to Uncle Tom's Cabin, p. 143.

[250]Louisville Weekly Journal, October 17, 1849.

[251]Shaler'sAutobiography, p. 36.

[252]Louisville Public Advertiser, December 24, 1829.

[253]Lexington Observer and Kentucky Reporter, February 27, 1834.

[254]Louisville Weekly Journal, March 4, 1846.

[255]Louisville Weekly Journal, September 3, 1845.

[256]Lexington ObserverandKentucky Reporter, Jan. 28, 1835.

[257]Ibid., July 9, 1834.

[258]Lexington ObserverandKentucky Reporter, Jan. 7, 1835.

[259]Louisville Weekly Journal, August 6, 1845.

[260]Bairdstown Candid Review, June 20, 1809.

[261]Louisville Weekly Journal, May 2, 1849.

[262]Louisville Weekly Journal, September 26, 1849.

[263]Lexington Western Luminary, June 5, 1833.

[264]Blanchard and Rice,Debates on Slavery, p. 133.

[265]Louisville Weekly Journal, July 30, 1845.

[266]Ibid., July 19, 1848.

[267]Ibid., August 14, 1850.

[268]Ibid., August 2, 1848.

[269]St. Louis Daily Times, October 14, 1852.

[270]Louisville Daily Journal, November 23, 1848.

[271]Louisville Public Advertiser, November 2, 1825.

[272]Ibid., September 13, 1826.

[273]Louisville Daily Times, March 1, 1854.

[274]Slavery and Internal Slave Trade in the U. S., p. 12.

[275]Martin, Asa E.,Anti-Slavery Movement in Kentucky, p. 89.

[276]Collins,History of Kentucky, Vol. 1, p. 74.

[277]Cynthiana News, January 10, 1858.

[278]Henderson Weekly Commercial, January 29, 1858.

[279]Georgetown Gazette, December 23, 1858.

[280]Weekly Free South(Newport), April 29, 1859.

[281]Debates of the Convention of 1849, p. 73.

[282]Little, L. P.,Ben Hardin, his Times and Contemporaries, p. 544.

[283]Presbyterian Herald, April 12, 1849.

[284]Collected Documents, 1847, pp. 581-583; 1853, pp. 401-403; 1860, pp. 241-246.

Slavery in its more economic form naturally spread to the Kentucky district as the western frontier of Virginia became settled. Of the 293,427 slaves which were held in the State of Virginia in the year 1790, however, only 11,830 were in the district of Kentucky, which at that time had a total population of 73,077. Few thought, however, of disputing the rights of the institution in the newly created State. The final convention which met to form a constitution was held at Danville, beginning on April 2, 1792, and in the course of its proceedings it was apparent that there was no fundamental division among the delegates regarding any of the proposed provisions with the exception of the one dealing with slavery. Virginia had stipulated in giving permission for the formation of the new State that slavery as an established institution should not be disturbed, and this policy had the support of a majority of the members of the constitutional convention. George Nichols, a native of the Old Dominion, was the leader of the assembly and had charge of most of the work which was done and naturally was most interested in carrying out the wishes of his native State in the formation of the new document. The only serious opponent was David Rice, a noted Presbyterian minister, but, having resigned on April 11, he was not present at the time when the slavery issue came up for final settlement.

A separate vote was taken on Article IX, the slavery section, which passed 26 to 19. It was finally provided that

The legislature shall have no power to pass laws for the emancipation of slaves without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money, for the slaves emancipated; they shall have no powerto prevent immigrants to this state, from bringing with them such persons as are deemed slaves by the laws of any one of the United States, so long as any person of the same age or description shall be continued in slavery by the laws of this state: that they shall pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a charge to the county in which they reside; they shall have full power to prevent slaves from being brought into this state as merchandise; they shall have full power to prevent any slave being brought into this state from a foreign country, and to prevent those from being brought into this state, who have been since the first of January, 1789, or may hereafter be imported into any of the United States from a foreign country. And they shall have full power to pass such laws as may be necessary to oblige the owners of slaves to treat them with humanity, to provide for them necessary clothes and provisions, to abstain from all injuries to them extending to life or limb, and in case of their neglect or refusal to comply with the directions of such laws, to have such slave or slaves sold for the benefit of their owner or owners.[285]

In any discussion of the slavery question in Kentucky in its historical aspects this article of the first constitution is fundamental. It is evident that even at that early day the difficulty of the slavery problem was already in the minds of the people in spite of many other apparently more pressing issues. The article itself remained practically intact throughout the existence of slavery in the State. Were there ever in later years gathered within the confines of the State any body of men who had a better grasp of the future? The single instance of the recommendation that the legislature should pass laws permitting the emancipation of slaves only under the provision that they should be guaranteed from becoming a public charge to the county shows the comprehension of a difficulty that could not at such an early date have developed to any great degree, but which in later decades was a formidable problem. We may well say with John Mason Brown, however, that "the system of slavery thus contemplated was designed to be asmild, as human, and as much protected from traffic evils as possible, but it was to be emphatically perpetual, for no emancipation could be had without the assent of each particular owner of each individual slave."[286]

The session of the State assembly which met in November, 1792, only attempted to carry out the constitutional provision prohibiting commercial transactions with slaves. No person was permitted to buy of, or sell to, any slave, any manner of thing whatsoever without a written permit descriptive of the article under the penalty of four times the value of the thing bought or sold. The jurisdiction of such cases was given to the county court, if they concerned values of more than five pounds. The slave was to receive ten lashes, which by the standards of those days was a meager punishment for any offense.[287]Whenever possible the slave was not brought into consideration as an offender. The theory seems to have been that the slave was better off when left alone. It was only when some unscrupulous outsider came in to use the slave either as a victim or as an object of profit that it was necessary to draw the strings tighter on the Negro, not because of any inherent tendency to crime so much as to keep the slave from becoming unruly when in the power of a superior influence.

It was not until the session of 1798 that the legislature drew up the fundamental slave code which was to carry out all the recommendations of the constitutional convention and which remained the basis of all legal action throughout the entire period of slavery. Among the early acts of the State had been the temporary adoption of the statutes of Virginia on the treatment of slaves and slavery problems, which were then in force.[288]These remained as a slave code for Kentucky until the enactment in 1798 of these new laws, which contained forty-three articles and involved almost every question that could come up for legal consideration in connection with the institution. The experience of sixyears as a separate State had served to show that many existing provisions of the Virginia code were not readily adapted to the rapidly growing State, and then too there was a decided tendency to ameliorate the condition of the slave as much as possible. In Kentucky they were not then, at least, confronted with such a large mass of slaves that they could not meet problems in a much easier manner than in the Old Dominion.

In the beginning, it was naturally found necessary to place some restrictions on the slave and his movements. He was not allowed to leave his master's plantation without written permission and if he did go away, any person could apprehend the offender and take him before a justice of the peace, who was empowered to order the infliction of stripes at his discretion. Furthermore, he was not to wander off to any other plantation without the written permission of his owner, with the provision in this instance that he was not to be taken before a justice of the peace, but before his owner, who was entitled to inflict ten lashes upon the offender. Should the slave be found carrying any powder, shot, a gun, club, or any weapon he could be apprehended by any free person and taken before a justice and a much severer penalty exacted in the form of thirty-nine lashes, "well laid on, on the bare back."[289]It is clear that this law was drawn up to keep the slave from becoming a public menace and not as a sign of absolute restriction on the servant, for it was further provided in Section 6 that in case the slave lived in a frontier community he could go to the local justice of the peace and secure a permit to keep and use guns, powder, shot and other weapons for either offensive or defensive purposes. This permission was to be indorsed by any free Negro, mulatto or Indian and did not necessarily involve the approval of the owner of the slave.

It was declared unlawful for slaves to engage in riots, unlawful assemblies, in trespasses or in seditious speech and, if so accused, they were to be taken before the local justicewho was to punish them at his discretion. But the Negroes themselves were not to be considered as the only guilty ones. In order to prevent any such disorderly meetings no owner of slaves was to be allowed to permit any slave not belonging to him to remain on his plantation for more than four hours at any one time under a nominal penalty to such owner of $2; but, if he allowed more than five such slaves to assemble on his property, he was to be fined more severely. If such a group were brought together by the written permission of the owner and for business reasons, however, there was involved no offense whatever.[290]It was realized that oftentimes the chief leaders in the unlawful meetings of slaves were free Negroes and sympathetic whites. Were any such to be found present they were to be arrested and if found guilty when tried before a justice of the peace, should be fined 15 shillings, to be paid, not to the court, but to the informer and if the money was not forthcoming the court was to have twenty lashes inflicted—no matter whether the convicted be white or black. Inasmuch as the degree of punishment of the slaves for being present at such a meeting was not specified it would seem that the legislature meant that the free persons involved should be treated more severely than slaves by the court.

The law of 1792 regarding trading with slaves had not proved to be effective, for in many cases the owner for a stipulated wage paid by the slave had permitted him to go at large and engage in trade as if he were a free man. The legislature found that this encouraged the slaves to commit thefts and engage in various evil practices and naturally censured the owner. A fine of $50 was to be paid by the master for each offending slave and no punishment whatever was to be given the latter. But should the servant go so far as to hire himself out, he would be imprisoned by order of the court and, at the next session of the county court, he would be sold. One fourth of the money thus received was to be applied to the county funds and 5 per cent was to be given to the sheriff and the owner was toreceive the remaining 70 per cent. Here too the slave was not punished and his condition of servitude was not changed. It was merely a change of owners. Again the offending owner was the victim and for his carelessness he was deprived of 30 per cent of the money value of his slave.[291]

The leading Kentucky case bearing on slaves engaged in trade is that of Bryantvs.Sheely (5 Dana, 530). Five of the main points are worth mentioning here:

1. To buy or receive any article from a slave, without the consent of his master, in writing, specifying the article, is a highly penal offense.2. A sale made by a slave, without such written consent, is void, and does not divest the master of his property; he may sue for, and recover it; or he may waive his right to the specific thing, affirm the sale, and recover the price or value, if it was not paid to the slave.3. A general permission to a slave to go at large and trade for himself as a free man, is contrary to public policy, and a violation of a penal statute. The owner or master of a slave could maintain no action for any claim acquired by a slave while acting under such illegal license.4. But a slave may be permitted by his master to buy or sell particular articles, and any form of consent or permission given by the master, or his assent after the fact, will give validity to the sale—though the purchaser may be liable to the penalty, if the consent be not in writing.5. A slave, being authorized by his master to sell any particular thing, becomes the agent of his master for that purpose; and from the authority to sell, an authority to transfer the property, and to fix and receive the price must be inferred; but the slave cannot exercise or receive an authority to maintain any action in relation to it; the right of action for the price belongs to the master, and if he sues, that fact itself is sufficient evidence that he authorized or approved and confirmed the sale.

1. To buy or receive any article from a slave, without the consent of his master, in writing, specifying the article, is a highly penal offense.

2. A sale made by a slave, without such written consent, is void, and does not divest the master of his property; he may sue for, and recover it; or he may waive his right to the specific thing, affirm the sale, and recover the price or value, if it was not paid to the slave.

3. A general permission to a slave to go at large and trade for himself as a free man, is contrary to public policy, and a violation of a penal statute. The owner or master of a slave could maintain no action for any claim acquired by a slave while acting under such illegal license.

4. But a slave may be permitted by his master to buy or sell particular articles, and any form of consent or permission given by the master, or his assent after the fact, will give validity to the sale—though the purchaser may be liable to the penalty, if the consent be not in writing.

5. A slave, being authorized by his master to sell any particular thing, becomes the agent of his master for that purpose; and from the authority to sell, an authority to transfer the property, and to fix and receive the price must be inferred; but the slave cannot exercise or receive an authority to maintain any action in relation to it; the right of action for the price belongs to the master, and if he sues, that fact itself is sufficient evidence that he authorized or approved and confirmed the sale.

Unlike the more southerly States, Kentucky did not leave the slave helpless in the courts. If a slave were charged with a capital crime he was brought before the court of quarter sessions, which was composed of the various countyjustices of the peace. They were to constitute a court of oyer and terminer. But they alone were not to decide the fate of the Negro, for the sheriff was required to empanel a jury of twelve men from among the bystanders, who were to constitute the trial jury. It was explicitly stated that legal evidence in such a case would be the confession of the offender, the oath of one or more credible witnesses, or such testimony of Negroes, mulattoes, or Indians as should seem convincing to the court. When a slave was called upon to testify in such a case, the court, the witness "not being a Christian," found it necessary to administer the following charge that he might be under the greater obligation to declare the truth: "You are brought hither as a witness, and by the direction of the law I am to tell you, before you give your evidence, that you must tell the truth and nothing but the truth, and that if it be found hereafter that you tell a lie, and give false testimony in this matter, you must, for so doing, receive thirty-nine lashes on your bare back, well laid on, at the common whipping post."[292]

Section 22 of the law of 1798 provided that the master or owner of any slave might appear in court at a trial of his servant and "make what just defense he can for such slave." The only restriction was that such defense should not interfere with the form of the trial. Naturally the liberally disposed slaveholders interpreted this to mean that they could employ counsel to defend their Negroes and it remained a disputed question down to 1806, when the legislature made the provisions more specific. By this new law it was provided that it was not only the privilege but the duty of the owner of a slave who was being prosecuted to employ an attorney to defend him. The owner neglecting to do so the court must assign counsel to defend the slave and the costs thereby incurred were to be charged to the owner. The fee for defense was not to exceed $200 and if not forthcoming the court was empowered to recover the amount in the manner of any other debt of similar amount.It was plainly the intention of the legislature to provide a just trial for any slave, for they even went so far as to enact that the lawyer appointed by the court for the prisoner should "defend such slave as in cases of free persons prosecuted for felony by the laws of this state."[293]

When the slave was convicted of an offense which was punishable by death but which was within the benefit of clergy the capital penalty was not pronounced, but the offender was burnt in the hand or inflicted with any other corporal penalty at the discretion of the court. Should the criminal be sentenced to suffer death, thirty days were to elapse before the execution, except where it was a case of conspiracy, insurrection or rebellion. When the court had decided to sentence the slave to the death penalty a valuation of the Negro was made. This statement was to be turned over to the State auditor of public accounts who was required to issue a warrant on the treasury for the amount in favor of the owner of the convicted party. The owner on his part was to turn over to the treasurer the certificate of the clerk of the court showing that the slave had been condemned and the statement of the sheriff that the offender had been executed or had died before execution.[294]

This matter of the payment to the owner of the value of the executed slave appears never to have been questioned to any extent even by the abolitionists in the legislature until the session of 1830 when a bill was introduced for the repeal of the law. The bill was lost but in the course of the debate it was stated that while Kentucky contained over 160,000 slaves only about one fifth of the tax-paying whites were slaveholders and that $68,000 had already been paid out of the State treasury as indemnity for slaves executed. After the defeat of this bill there was offered a substitute which proposed that a tax of one fourth of one per cent should be levied upon the value of all slaves in the State for the creation of a fund out of which to make such disbursements, but this was likewise lost.[295]

Until 1811 there were no special enactments on slave crimes and their punishments. The court had, therefore, more or less range in the exactment of penalties but the legislature of 1811 passed during the first fortnight of its session a specific law governing slave crimes. Only four offenses were to be regarded as punishable by death: (1) conspiracy and rebellion, (2) administering poison with intent to kill, (3) voluntary manslaughter and (4) rape of a white woman. If any slaves were to be found guilty of consulting or advising the murder of any one, every such consultation was to constitute an offense and be punishable by any number of stripes not exceeding one hundred.[296]

As time went on the list of capital crimes was increased as a natural result of the growth of the slave population and their growing state of unrest after the incoming of the anti-slavery propaganda. By the close of the slavery era in Kentucky there were eleven offenses for which slaves should suffer death: (1) murder, (2) arson, (3) rape of a white woman, (4) robbery, (5) burglary, (6) conspiracy, (7) administering poison with intent to kill, (8) manslaughter, (9) attempting to commit rape on a white woman, (10) shooting at a white person with intent to kill, and (11) wounding a white person with intent to kill. It will readily be seen that from a practical standpoint these eleven offenses can be narrowed down to eight. The severity of the slave code can be shown by comparison of the capital crimes for white persons at the same time. These were four in number, (1) murder, (2) carnal abuse of a female under ten years of age, (3) wilful burning of the penitentiary and (4) being an accessory to the fact.[297]

Virginia had early enacted that slaves should be considered as real estate in the settlement of inheritances. But the growing tendency to look upon the slaves in all things else as personal chattels led to such legal and popular confusion that the Virginia assembly often observed that they were "real estate in some respects, personal in others, andboth in others." Regardless of such legal complexity it was not until 1793 that it was enacted that "all negro and mulatto slaves in all courts of judicature shall be held and adjudged to be personal estate."

In drawing up the slave code of 1798 Kentucky disregarded the legal experience of Virginia and her more recent remedial legislation and enacted that "all negro, mulatto or Indian slaves, in all courts of judicature and other places within this commonwealth, shall be held, taken and adjudged to be real estate, and shall descend to the heirs and widows of persons departing this life, as lands are directed to descend." It was further provided, however, that "all such slaves shall be liable to the payment of debts, and may be taken by execution for that end, as other chattels, or personal estate may be."[298]

Such a law coupled with the legal precedents of Virginia served to intensify the mixed property conception of the slave. The confusion, however, was purely legal, for slaves were held in all other respects as personalty; but in cases of inheritance and the probation of wills the Kentucky Court of Appeals was often called upon to define clearly the legal status of the Negro in bondage. The first important decision was handed down in 1824 in the case of Chinn and wifevs.Respass, in which it was pointed out that while slaves were by law made real estate for the purpose of descent and dower, yet they had in law many of the attributes of personal estate. They would pass by a nuncupative will, and lands would not; they could be limited, in a grant or devise no otherwise than personal chattels; and personal actions might be brought to recover the possession of them.Furthermore "they were in their nature personal estate, being moveable property, and as such might attend the person of the proprietor wherever he went; and in practice they were so considered by the people in general."[299]

Conversely, the court was often called upon to interpret the phrase "personal estate" in wills and contracts, where it appeared without any other restrictive expression or provision, and it consistently held that the term should be construed as embracing slaves.[300]Gradually the personal property conception began to secure even legal precedence over that of real estate when the two interpretations came into close conflict. This was accomplished by placing more stress on the proviso in the original slave code, which placed slaves in the hands of the administrator as assets for the payment of debts. This led to increasing power for the executor who could even defeat the title of the heirs, though the property may have been specifically devised. Hence it was not surprising that in the Revised Statutes of 1852 it was provided that slaves should thereafter be deemed and held as personal estate. Coming after all doubt of the personalty of slaves had been removed by the decisions of the highest tribunal in the State, this law meant little more than the repeal of the old statute making slaves real estate.

The wonder is that Kentucky should have chosen to hold to an antiquated legal conception for fifty years after Virginia had proved its fallacy by her experience in the eighteenth century. While it did little harm, it had few advantages. The existence of the theory was chiefly noticeable in the frequent legal battles over technicalities in the settlement of estates. In the popular mind slaves were always considered personal property, and the spirit of the slave code itself embodied that conception as regarded all things save the question of inheritance.

With respect to the liberty of the slaves the code of1798 clearly shows that the existing type of slavery was purely rural, for the restrictions on slaves concerned only the plantation Negroes. Strictly understood, the slave was not to leave the farm of his owner without a pass from his master, the main purpose being to keep the Negroes from congregating on any one farm. Later when emissaries from the North became unusually active the rights and privileges of the slaves were further restricted. This change was due to the current belief that these foreign individuals were bent upon stirring up strife among the slaves and inciting them to insurrection. Once started such a scheme would have resulted in anarchy especially in the towns. The real curbing provisions were not started until along in the thirties when these outside forces had begun to make their appearance in the urban communities.[301]

In some parts of the State were instituted mounted patrols, who went about at night and watched the movement of slaves. They were to apprehend any servant who was caught away from his home plantation without a pass from his master.[302]Such an institution was based on good Negro psychology, for his fear of the spirits of night was well known. Citizens of that time have told us many tales of the dread which the slave had of meeting these night raiders whom they termed "patter-rollers" and how they came to sing of them in true Negro fashion:

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