The Journal of Negro History, Volume 3, 1918

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.327

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.328 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.329 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 1787.330

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.331

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."332

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.333

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.334 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.335 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.336

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.337 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.338

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.339 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.340 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.341 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.342 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.343 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.344

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.345

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.346 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 $50,000.347 In January, 1860, William McGinnis, of Bourbon County, appeared with fourteen slaves before the same probate court and set them all free.348

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.

CHAPTER IV

The Social Status of the Slave