Chapter XV: Section 22: of the law of 1798 provided that the master or owner of any

slave might appear in court at a trial of his servant and "make what just defense he can for such slave." The only restriction was that such defense should not interfere with the form of the trial. Naturally the liberally disposed slaveholders interpreted this to mean that they could employ counsel to defend their Negroes and it remained a disputed question down to 1806, when the legislature made the provisions more specific. By this new law it was provided that it was not only the privilege but the duty of the owner of a slave who was being prosecuted to employ an attorney to defend him. The owner neglecting to do so the court must assign counsel to defend the slave and the costs thereby incurred were to be charged to the owner. The fee for defense was not to exceed $200 and if not forthcoming the court was empowered to recover the amount in the manner of any other debt of similar amount. It was plainly the intention of the legislature to provide a just trial for any slave, for they even went so far as to enact that the lawyer appointed by the court for the prisoner should "defend such slave as in cases of free persons prosecuted for felony by the laws of this state."[293]

When the slave was convicted of an offense which was punishable by death but which was within the benefit of clergy the capital penalty was not pronounced, but the offender was burnt in the hand or inflicted with any other corporal penalty at the discretion of the court. Should the criminal be sentenced to suffer death, thirty days were to elapse before the execution, except where it was a case of conspiracy, insurrection or rebellion. When the court had decided to sentence the slave to the death penalty a valuation of the Negro was made. This statement was to be turned over to the State auditor of public accounts who was required to issue a warrant on the treasury for the amount in favor of the owner of the convicted party. The owner on his part was to turn over to the treasurer the certificate of the clerk of the court showing that the slave had been condemned and the statement of the sheriff that the offender had been executed or had died before execution.[294]

This matter of the payment to the owner of the value of the executed slave appears never to have been questioned to any extent even by the abolitionists in the legislature until the session of 1830 when a bill was introduced for the repeal of the law. The bill was lost but in the course of the debate it was stated that while Kentucky contained over 160,000 slaves only about one fifth of the tax-paying whites were slaveholders and that $68,000 had already been paid out of the State treasury as indemnity for slaves executed. After the defeat of this bill there was offered a substitute which proposed that a tax of one fourth of one per cent should be levied upon the value of all slaves in the State for the creation of a fund out of which to make such disbursements, but this was likewise lost.[295]

Until 1811 there were no special enactments on slave crimes and their punishments. The court had, therefore, more or less range in the exactment of penalties but the legislature of 1811 passed during the first fortnight of its session a specific law governing slave crimes. Only four offenses were to be regarded as punishable by death: (1) conspiracy and rebellion, (2) administering poison with intent to kill, (3) voluntary manslaughter and (4) rape of a white woman. If any slaves were to be found guilty of consulting or advising the murder of any one, every such consultation was to constitute an offense and be punishable by any number of stripes not exceeding one hundred.[296]

As time went on the list of capital crimes was increased as a natural result of the growth of the slave population and their growing state of unrest after the incoming of the anti-slavery propaganda. By the close of the slavery era in Kentucky there were eleven offenses for which slaves should suffer death: (1) murder, (2) arson, (3) rape of a white woman, (4) robbery, (5) burglary, (6) conspiracy, (7) administering poison with intent to kill, (8) manslaughter, (9) attempting to commit rape on a white woman, (10) shooting at a white person with intent to kill, and (11) wounding a white person with intent to kill. It will readily be seen that from a practical standpoint these eleven offenses can be narrowed down to eight. The severity of the slave code can be shown by comparison of the capital crimes for white persons at the same time. These were four in number, (1) murder, (2) carnal abuse of a female under ten years of age, (3) wilful burning of the penitentiary and (4) being an accessory to the fact.[297]

Virginia had early enacted that slaves should be considered as real estate in the settlement of inheritances. But the growing tendency to look upon the slaves in all things else as personal chattels led to such legal and popular confusion that the Virginia assembly often observed that they were "real estate in some respects, personal in others, and both in others." Regardless of such legal complexity it was not until 1793 that it was enacted that "all negro and mulatto slaves in all courts of judicature shall be held and adjudged to be personal estate."

In drawing up the slave code of 1798 Kentucky disregarded the legal experience of Virginia and her more recent remedial legislation and enacted that "all negro, mulatto or Indian slaves, in all courts of judicature and other places within this commonwealth, shall be held, taken and adjudged to be real estate, and shall descend to the heirs and widows of persons departing this life, as lands are directed to descend." It was further provided, however, that "all such slaves shall be liable to the payment of debts, and may be taken by execution for that end, as other chattels, or personal estate may be."[298]

Such a law coupled with the legal precedents of Virginia served to intensify the mixed property conception of the slave. The confusion, however, was purely legal, for slaves were held in all other respects as personalty; but in cases of inheritance and the probation of wills the Kentucky Court of Appeals was often called upon to define clearly the legal status of the Negro in bondage. The first important decision was handed down in 1824 in the case of Chinn and wife _vs._ Respass, in which it was pointed out that while slaves were by law made real estate for the purpose of descent and dower, yet they had in law many of the attributes of personal estate. They would pass by a nuncupative will, and lands would not; they could be limited, in a grant or devise no otherwise than personal chattels; and personal actions might be brought to recover the possession of them. Furthermore "they were in their nature personal estate, being moveable property, and as such might attend the person of the proprietor wherever he went; and in practice they were so considered by the people in general."[299]

Conversely, the court was often called upon to interpret the phrase "personal estate" in wills and contracts, where it appeared without any other restrictive expression or provision, and it consistently held that the term should be construed as embracing slaves.[300] Gradually the personal property conception began to secure even legal precedence over that of real estate when the two interpretations came into close conflict. This was accomplished by placing more stress on the proviso in the original slave code, which placed slaves in the hands of the administrator as assets for the payment of debts. This led to increasing power for the executor who could even defeat the title of the heirs, though the property may have been specifically devised. Hence it was not surprising that in the Revised Statutes of 1852 it was provided that slaves should thereafter be deemed and held as personal estate. Coming after all doubt of the personalty of slaves had been removed by the decisions of the highest tribunal in the State, this law meant little more than the repeal of the old statute making slaves real estate.

The wonder is that Kentucky should have chosen to hold to an antiquated legal conception for fifty years after Virginia had proved its fallacy by her experience in the eighteenth century. While it did little harm, it had few advantages. The existence of the theory was chiefly noticeable in the frequent legal battles over technicalities in the settlement of estates. In the popular mind slaves were always considered personal property, and the spirit of the slave code itself embodied that conception as regarded all things save the question of inheritance.

With respect to the liberty of the slaves the code of 1798 clearly shows that the existing type of slavery was purely rural, for the restrictions on slaves concerned only the plantation Negroes. Strictly understood, the slave was not to leave the farm of his owner without a pass from his master, the main purpose being to keep the Negroes from congregating on any one farm. Later when emissaries from the North became unusually active the rights and privileges of the slaves were further restricted. This change was due to the current belief that these foreign individuals were bent upon stirring up strife among the slaves and inciting them to insurrection. Once started such a scheme would have resulted in anarchy especially in the towns. The real curbing provisions were not started until along in the thirties when these outside forces had begun to make their appearance in the urban communities.[301]

In some parts of the State were instituted mounted patrols, who went about at night and watched the movement of slaves. They were to apprehend any servant who was caught away from his home plantation without a pass from his master.[302] Such an institution was based on good Negro psychology, for his fear of the spirits of night was well known. Citizens of that time have told us many tales of the dread which the slave had of meeting these night raiders whom they termed "patter-rollers" and how they came to sing of them in true Negro fashion:

Over the fence and through the paster,
Run, nigger, run, oh, run a little faster,
Run, nigger, run,
The patter-roller ketch you.

Such a system of county patrols did not prove to be sufficient as the slave population grew and the towns became larger and more attractive to the country slave. The legislature of 1834 in drawing up a law concerning tavern keepers had this problem clearly in mind when they provided that no person should sell, give or loan any spirituous liquors to slaves, other than his own, under a penalty of $10 for each offense. Furthermore, if the offender was a licensed liquor dealer, he should have his license taken away from him for the term of two years.[303] That even this measure did not prove effective enough to curb the evil of Negroes congregating in the towns is shown by the further provision passed March 6, 1850, to increase the fine to $50 for each offense.[304] A still further extension was that of February 27, 1856, which provided that free Negroes were to be included in the restriction unless they presented a certificate from "some white person of respectable character." No slaves or free Negroes were to be employed in the selling or distribution of liquor nor were they to be allowed to visit or even loaf around any place where intoxicants were kept for sale.[305] The session of 1858 made the force of the law more explicit by defining very clearly the jurisdiction in such cases.[306]

Not only the State authorities but the towns as well were active in the measures adopted to meet the growing problem. The best available sample of the many provisions which the town councils drew up is this one which was passed by the trustees of Henderson in 1840:

It shall be and is hereby made, the duty of the Town Sergeant or
either of his assistants, to punish with any number of lashes not
exceeding ten, all or any negro slave or slaves who may be found
in any grog shop, grocery or other place where spirituous liquors
are retailed in said town, or who may be found on the streets of
said town after ten o'clock at night, unless it shall appear to
the said Town Sergeant, or assistant, that said negro slave or
slaves, are acting under the orders of his, her or their master
or mistress, and it shall further be the duty of the Town
Sergeant, or either of his assistants, to enter into any grog
shop, grocery or other place where spirituous liquors are
retailed, in said town, whenever he shall be informed that any
negro slave or slaves are collected therein. Provided, said Town
Sergeant, or assistant, can enter the same peaceably and without
force.[307]

This town regulation offers perhaps another proof of the oft-repeated statement regarding the slave laws of Kentucky that while they appeared severe on the statute books they were always mild in the enforcement. The regulation of the movement of slaves in the towns was always subject to the local conditions. Beginning about 1850 there was a growing feeling in some of the more thickly populated sections of the State that the type of Negro slave who sought to frequent the village saloons would sooner or later start an insurrection. But no such uprising ever occurred and the fear of such seems to have been due to the current animosity towards the activities of the abolitionists, which was prevalent throughout the State.

In the course of time it was considered necessary to treat more seriously also the importation of slaves. The advisability of preventing the importation of bondmen had been foreseen in Kentucky from the experience of the mother State of Virginia which had enacted a stringent law in 1778 imposing a penalty of one thousand pounds and the forfeiture of the slave upon the importer of any into that commonwealth. The ninth article of the Kentucky Constitution of 1792 had provided that the legislature "shall have full power to prevent slaves being brought into this commonwealth 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."[308]

The session of the State assembly in 1794 drew up a law concerning the importation and emancipation of slaves but it was largely a mere modification of the law of the State of Virginia. It was not until the adoption of the slave code of 1798 that the question was firmly settled by a more definite statement. By article 25 of that act it was provided "that no slave or slaves shall be imported into this state from any foreign country, nor shall any slave who has been imported into the United States from any foreign country since the first day of January, 1789, or may hereafter be imported into the United States from any foreign country under the penalty of $300."

This was merely carrying out the provisions of the constitution.