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 power to 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 as mild, 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 six years 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 justice who 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 to receive 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 Bryant vs. 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.
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 county justices 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]