The Journal of Negro History, Volume 3, 1918

291

It would perhaps be well to point out here the general common-law difference between the treatment of real and personal estate in a will. The title of the personal property of the deceased is vested in the executor and he holds it for the payment of debts and distribution according to the will of the testator. On the other hand the real estate vests in the devisees or heirs and does not go to the administrator, unless by statute enactment, which was in part true in Kentucky, in the case above, where the slaves, although real estate, were held liable for the debts of their master. Littell's Laws, 2: 120.

292

T. B. Monroe's Report I., 23.

293

Beatty vs. Judy, 1 Dana, 101. Plumpton vs. Cook, 2 A. K. Marshall, 450.

294

Rothert, History of Muhlenburg County, p. 343.

295

Young, B. H., History of Jessamine County, p. 89.

296

Session Laws, 1834, p. 726.

297

Ibid., 1850, p. 51.

298

Ibid., 1856, Vol. 1, pp. 42-44.

299

Ibid., 1858, Vol. 1, pp. 47-48.

300

Starling, p. 290.

301

Littell's Laws, 1: 32.

302

Littell's Laws, 2: 119.

303

Ibid., 5: 293.

304

Ibid., 5: 435-437.

305

Barre, W. L., Speeches and Writings of Thomas F. Marshall, p. 115.

306

Section 1 of the law 1833 read: "Each and every person or persons who shall hereafter import into this state any slave or slaves, or who shall sell or buy, or contract for the sale or purchase, for a longer term than one year, of the service of any such slave or slaves, knowing the same to have been imported, shall forfeit and pay $600 for each slave so imported, sold, or bought, or whose service has been so contracted for; recoverable by indictment of a grand jury or any action of debt, in the name of the Commonwealth in any circuit court, where the offenders may be found." Session Laws, 1833, pp. 258-261.

307

Barre, W. L., p. 116.

308

Niles' Register, January 23, 1841.

309

Collins, Vol. 1, p. 83.

310

Session Laws, 1860, Vol. 1, p. 104.

311

Ibid., 1864, pp. 70-72.

312

Littell's Laws, 2: 5-6.

313

Ibid., 2: 5-6.

314

Session Laws, 1835, pp. 82-83.

315

Ibid., 1838, p. 158.

316

Session Laws, 1823, p. 178.

317

Ibid., 1831-2, pp. 54-55.

318

Session Laws, 1838, p. 155.

319

Ibid., 1830, pp. 173-175.

320

Western Law Journal, 2: 232-235 (best report of the trial). Niles' Register, December 21, 1844. Webster; Delia A., Kentucky Jurisprudence, pp. 1-84.

321

Fairbank, How the Way was Prepared, pp. 53, 57.

322

Ibid., p. 85.

323

Ibid., p. 103.

324

Fairbank, pp. 144, 149.

325

American Anti-slavery Society Report, 1839, p. 90.

326

American Anti-slavery Society Report, 1839, pp. 93-94.

327

Chaddock, F. E., Ohio before 1850, p. 86.

328

McMaster, History of the United States, Vol. 7: 262-263.

329

Senate Document No. 19, 30th Congress, 1st Session.

330

5 Howard's Reports, 215-232.

331

Colton, Reed and McKinley, Works of Henry Clay, Vol. 3: 329.

332

24 Howard's Reports, 109-110.

333

Littell's Laws, 2: 246-247.

334

Session Laws, 1823, p. 563.

335

Black vs. Meaux, 4 Dana, 189.

336

Susan vs. Ladd, 6 Dana, 30

337

Hopkins vs. Morgan's executor, 3 Dana, 17.

338

Isaac et al. vs. Graves' executor, 16 Ben Monroe, 365.

339

Rankin vs. Lydia, 2 A. K. Marshall, 467.

340

15 Ben Monroe, 328.

341

14 Ibid., 355.

342

12 Ibid., 542.

343

4 Metcalfe, 231.

344

11 Ben Monroe, 210.

345

4 Dana, 589, 7 Dana, 360.

346

American Anti-Slavery Society Report, 1859, p. 79.

347

Weekly Free South (Newport), March 4, 1859.

348

American Anti-Slavery Society Report, 1860, p. 44.

349

Lexington Gazette, August 23, 1803.

350

Louisville Public Advertiser, July 10, 1824.

351

Louisville Weekly Journal, October 15, 1845.

352

Ibid., October 22, 1845.

353

Ibid., September 27, 1848.

354

Ibid., May 16, 1849.

355

Ibid., December 10, 1851.

356

Ibid., December 22, 1852.

357

Lexington Gazette, April 12, 1806.

358

The best contemporary treatment of this subject in general is by Dr. R. J. Spurr—the sole printed text being in Perrin's History of Bourbon County, pp. 59-60.

359

Buckingham, Eastern and Western States, Vol. 3: 41.

360

Louisville Public Advertiser, August 11, 1824.

361

Lexington Gazette, June 14, 1803.

362

Lexington Intelligencer, July 7, 1838.

363

Perrin (Bourbon County), p. 60.

364

Harper's Magazine, October, 1884, pp. 730-738.

365

Clarke, Sufferings of Lewis and Milton Clarke, p. 104. Rothert, History of Muhlenburg County, p. 104. Perrin (Bourbon County), p. 60.

366

Address to the People of Kentucky, p. 8.

367

Presbyterian Herald, April 16, 1846. See especially the editorial and articles in the issue of October 4, 1849.

368

Rothert, History of Muhlenburg County, p. 340.

369

Henson, Life of Josiah Henson, pp. 26-27.

370

Louisville Weekly Journal, March 27, 1850.

371

Little, L. P., Ben Hardin, his Times and Contemporaries, pp. 544-545.

372

Allen, James Lane, Blue Grass Region of Kentucky, pp. 77-78.

373

Robertson's Autobiography, pp. 124-125.

374

Shaler's Autobiography, pp. 57-58.

375

Collins, History of Kentucky, Vol. 2, pp. 634-636.

376

Cotterill, History of Pioneer Kentucky, p. 245. Little, L. P., Ben Hardin, his Times and Contemporaries, p. 543.

377

Buckingham, Eastern and Western States, Vol. 3: 7-8.

378

Op. cit., Vol. 3: 8.

379

Little, L. P., Ben Hardin, his Times and Contemporaries, pp. 541-2.

380

A typical example of this has been related by one of Kentucky's distinguished sons:

"In the households where I was intimate the slaves were about on the same footing as the other members of the family; they were subjected to sudden explosions of the master's temper much as were his children. I well remember a frequent scene in my grandfather's house, where it was the custom that I should go every Sunday afternoon for counsel and instruction. They were at first somewhat fearsome occasions for a little lad thus to be alone with an aged and stately grandfather. I soon won his interest, in some measure by my fears, and came greatly to enjoy the intercourse, for he knew how to talk to a boy, and we became, in a way, boys together, in our sense of the funny side of things. It was the custom, too, for him to divide the session of three or four hours with a brief nap taken in his chair....

"As his rooms were near the negro quarter he would make ready for his siesta by sending forth the servantman who waited on him, bidding him tell the people that they were to keep quiet during the performance. I can see him now with his pig-tail hanging down behind the back of the easy chair and a handkerchief over his face as he courted slumber. For a minute or two it would be still, then the hidden varlets would be as noisy as before. Then the pig-tail would begin to twitch, and he would mutter: 'Jim, tell those people they must be still.' Again a minute of quiet, and once more the jabbering and shouting. Now with a leap he would clutch his long walking-stick and charge the crowd in the quarter, laying about him with amazing nimbleness, until all the offenders were run to their holes. Back he would come from his excursion and settle himself to sleep. I could see that his rage was merely on the surface and that he had used it for a corrective, for he evidently took care not to hurt anyone." Shaler's Autobiography, p. 37.

381

Little, L. P., Ben Hardin, his Times and Contemporaries, p. 543.

382

Shaler's Autobiography, pp. 36-37.

383

Littell's Laws, Vol. 5: 578-579.

384

Fearon, Sketches in America, p. 241.

385

Session Laws, 1830, p. 174.

386

Blanchard and Rice, Debate on Slavery, p. 135.

387

American Slavery As It Is, p. 87.

388

Lexington Reporter, January 15, 1809.

389

Allen, James Lane, Blue Grass Region of Kentucky, pp. 67-68.

390

Davidson, History of the Presbyterian Church in Kentucky, p. 336.

391

Minutes of Transylvania Presbytery, Vol. 1, p. 147.

392

Minutes of Transylvania Presbytery, Vol. 2, pp. 102-3.

393

Ibid., Vol. 2, pp. 163, 224.

394

Minutes W. Lexington Presbytery, Vol. 1, p. 38.

395

Ibid., p. 81.

396

Minutes of Kentucky Synod, Vol. 5, pp. 28, 31.

397

Minutes of Kentucky Synod, Vol. 5, pp. 50-52.

398

Address to Presbyterians of Kentucky, pp. 33-34.

399

Ibid., p. 34.

400

Davidson, History of the Presbyterian Church in Kentucky, p. 340.

401

Op. cit., p. 340.

402

Blanchard and Rice, Debate on Slavery, p. 88.

403

Spencer, History of the Baptists in Kentucky, Vol. 1, p. 186.

404

Niles' Register, May 24, 1845.

405

Ibid., June 28, 1845.

406

Ibid., June 8, 1844.

407

Ibid., May 17, 24, 31, 1845.

408

Niles' Register, September 27, 1845.

409

Collins, History of Kentucky, Vol. 1, p. 81.

410

Ibid., Vol. 1, p. 83.

411

Schurz, Carl, Henry Clay, Vol. 1, p. 31.

412

Colton, Works of Clay, Vol. 6, p. 153.

413

His attitude was perhaps best shown when, on a visit to Richmond, Indiana, in the fall of 1846, he was presented with a petition by a Quaker by the name of Mendenhall asking him to liberate all the slaves he owned. Clay made a rather lengthy speech to the gentleman on the general principles of the question and then, came down to the practical side of the problem:

"Without any knowledge of the relation in which I stand to my slaves, or their individual condition, you, Mr. Mendenhall, and your associates, who have been active in getting up this petition, call upon me forthwith to liberate the whole of them. Now let me tell you, that some half a dozen of them, from age, decrepitude, or infirmity, are wholly unable to gain a livelihood for themselves, and are a heavy charge upon me. Do you think that I should conform to the dictates of humanity by ridding myself of that charge, and sending them forth into the world with the boon of liberty, to end a wretched existence in starvation? Another class is composed of helpless infants, with or without improvident mothers. Do you believe as a Christian, that I should perform my duty toward them by abandoning them to their fate? Then there is another class who would not accept their freedom if I would give it to them. I have for many years owned a slave that I wished would leave me, but he would not. What shall I do with that class?"

"What my treatment of my slaves is you can learn from Charles, who accompanies me on this journey, and who has traveled with me over the greater part of the United States, and in both the Canadas, and has had a thousand opportunities, if he had chosen to embrace them, to leave me. Excuse me, Mr. Mendenhall, for saying that my slaves are as well fed and clad, look as sleek and hearty, and are quite as civil and respectful in their demeanor, and as little disposed to wound the feelings of any one, as you are."

"I shall, Mr. Mendenhall, take your petition into respectful and deliberate consideration; but before I come to a final decision, I should like to know what you and your associates are willing to do for the slaves in my possession, if I should think proper to liberate them. I own about fifty, who are probably worth about fifteen thousand dollars. To turn them loose upon society without any means of subsistence or support would be an act of cruelty. Are you willing to raise and secure the payment of fifteen thousand dollars for their benefit, if I should be induced to free them? The security of the payment of that sum would materially lessen the obstacle in the way of their emancipation."—Colton, Reed & McKinley, Works of Henry Clay, Vol. 6, pp. 388-390.

This sums up in Clay's own words his treatment of the slaves that were under his control. It is not to be presumed in any case that general conditions in the State were like this. There were obvious reasons why Clay couldn't get one or two of his slaves to accept freedom when he offered it, for they realized that they were far better off under his own particular care than they could ever hope to be under an absolutely free status in society.

414

So consistent was Clay in deed as well as words in spite of all that the opposing forces had accomplished in the "State of Kentucky that when he died he left a will which did for his own slaves just what he would have had others do in his lifetime. As long as he lived he refused to emancipate his slaves but when he passed away he left a written document, the following portion of which forms the eminent climax to a career of continuous labors for the eventual good of the Kentucky slave owners as well as the slaves themselves.

"In the sale of any of my slaves, I direct that members of families shall not be separated without their consent.

"My will is, and I accordingly direct, that the issue of all my female slaves, which shall be born after the first day of January, 1850, shall be free at the respective ages, of the males at twenty-eight, and of the females at twenty-five; and that the three years next preceding their arrival at the age of freedom, they shall be entitled to their hire or wages for those years, or of the fair value of their services, to defray the expense of transporting them to one of the African colonies and of furnishing them with an outfit on their arrival there.

"And I further direct, that they be taught to read, to write, and to cipher, and that they be sent to Africa. I further will and direct, that the issue of any of the females, who are so to be entitled to their freedom, at the age of twenty-five, shall be free at their birth, and that they be bound out as apprentices to learn farming, or some useful trade, upon the condition also, of being taught to read, to write, and to cipher. And I direct also, that the age of twenty-one having been attained, they shall be sent to one of the African colonies, to raise the necessary funds for which purpose, if they shall not have previously earned them, they must be hired out for a sufficient length of time.

"I require and enjoin my executors and descendants to pay particular attention to the execution of this provision of my will. And if they should sell any of the females who or whose issue are to be free, I especially desire them to guard carefully the rights of such issue by all suitable stipulations and sanctions in the contract of sale. But I hope that it may not be necessary to sell any such persons who are to be entitled to their freedom, but that they may be retained in the possession of some of my descendants."—Colton, Reed & McKinley, Vol. 3, p. 153.

415

Birney, William, James G. Birney and his Times, p. 132.

416

Birney, William, James G. Birney and his Times, p. 133.

417

Ibid., p. 182. The interesting story of Birney and his troubles with his fellow townsmen does not come within the scope of this investigation and will be found treated at length in William Birney's James G. Birney and His Times.

418

Birney, William, James G. Birney and his Times, p. 185.

419

Ibid., p. 155.

420

Birney, William, James G. Birney and his Times, p. 156.

421

Quick to recognize this tendency, Clay referred to it in his Senate speech of February 7, 1839:

"The proposition in Kentucky for gradual emancipation did not prevail, but it was sustained by a large and respectable minority. That minority had increased, and was increasing, until the abolitionists commenced their operations. The effect has been to dissipate all prospects whatever, for the present, of any scheme of gradual or other emancipation. The people of that state have been shocked and alarmed by these abolition movements, and the number who would now favor a system even of gradual emancipation is probably less than it was in the years 1798-9. At the session of the legislature held in 1837-8 the question of calling a convention was submitted to a consideration of the people by a law passed in conformity with the Constitution of that state. Many motives existed for the passage of the law, and among them that of emancipation had its influence. When the question was passed upon by the people at their last annual election, only about one fourth of the whole voters of the state supported a call of a convention. The apprehension of the danger of abolition was the leading consideration among the people for opposing the call. But for that, but for the agitation of the question of abolition in states whose population had no right, in the opinion of the people of Kentucky, to interfere in the matter, the vote for a convention would have been much larger, if it had not been carried.... Prior to the agitation of this subject of abolition, there was a progressive melioration in the condition of the slaves—schools of instruction were opened by humane and religious persons. These are now all checked, and a spirit of insubordination having shown itself in some localities, traceable, it is believed, to abolition movements and exertions, the legislative authority has found it expedient to infuse fresh vigor into the police and the laws which regulate the conduct of the slaves."—Colton, Reed & McKinley, Works of Henry Clay, Vol. 6, pp. 153-154.

422

Niles' Register, July 4, 1835.

423

Shaler, N. S., Kentucky, p. 197.

424

Louisville Weekly Journal, September 26, 1849.

425

Niles' Register, May 9, 1849. Clay, Cassius, Memoirs, pp. 175-178. Collins, History of Kentucky, Vol. 1, p. 59.

426

Clay endeavored in his plan to be fair to all parties concerned, not only the Negro but the slave owner as well, as is well evident in the following paragraph, in which he sought to show the justice of his scheme to the holders of Negroes in the State:

"That the system, will be attended with some sacrifices on the part of the slaveholders, which are to be regretted, need not be denied. What great and beneficent enterprise was ever accomplished without risk and sacrifice! But these sacrifices are distant, contingent, and inconsiderable. Assuming the year 1860 for the commencement of the system, all slaves born prior to that time would remain such during their lives, and the present loss of the slaveholder would be only the difference in value of the female slave whose offspring, if she had any, born after the first day of January, 1860, should be free at the age of twenty-five or should be slaves for life. In the meantime, if the right to remove or sell the slave out of the State should be exercised, that trifling loss would not be incurred. The slaveholder, after the commencement of the system, would lose the difference between the value of the slaves for life and slaves until the age of twenty-five years. He might also incur some inconsiderable expense in rearing from their birth the issue of those who were to be free at twenty-five, until they were old enough to be apprenticed out; but as it is probable that they would be most generally bound to him, he would receive some indemnity from their services until they attained their majority."

427

Collins, History of Kentucky, Vol. 1, p. 58.

428

Niles' Register, February 21, 1849.

429

We know how Clay felt about this matter, for he referred to it at length in his speech in the Senate on February 20, 3850, in the debate on the Compromise resolutions. Speaking particularly of his letter of emancipation he declared: "I knew at the moment that I wrote that letter in New Orleans, as well as I know at this moment, that a majority of the people of Kentucky would not adopt my scheme, or probably any project whatever of gradual emancipation. Perfectly well did I know it; but I was anxious that, if any of my posterity, or any human being who comes after me, should have occasion to look into my sentiments, and ascertain what they were on this great institution of slavery; to put them on record then; and ineffectual as I saw the project would be, I felt it was a duty which I owed to myself, to truth, to my country, and to my God, to record my sentiments. The State of Kentucky has decided as I anticipated she would do. I regret it; but I acquiesce in her decision." —Colton, Reed & McKinley, Works of Henry Clay, Vol. 3, p. 353