The Journal of Negro History, Volume 3, 1918

by Various

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]