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]