It is evident from all contemporary discussions of the question of importation that it was the firm conviction that in order to do justice to the slave and the institution as a whole within the State it was necessary to prevent the infusion of any foreign slave element. Once such a policy had been carried out to a successful conclusion, they would have been confronted only with a purely domestic type of slavery and its increase. With such an ideal condition, for those times, the institution eventually would have been easily handled. But these early lawmakers, while no doubt honest in their intentions, did not have the wisdom that was tempered with experience, and the unscrupulous slave traders found further defects in the law and took advantage of them. A careful examination of the law of 1794, the codification of 1798, and the amendments of 1814 and 1815 will show that the whole theory of non-importation is summed up in the word intent. It was the intent with which the slaves were introduced, and to this alone the penalty attached. They were not to be imported as merchandise but every citizen could import slaves for his own use. Once these slaves were within the State there was no penalty provided if they were sold. There was nothing to prevent a man from selling what slaves he had imported and later going without the confines of the State and bringing in more. If he were brought before the court, he would claim that he had not intended to sell them when they were brought in, and no one could place a penalty on his intentions. It seems that there were other violators of the spirit of the law, who never sold any of the slaves but brought them into the State in large numbers and then hired them out for such long terms as 99 years.305 The fundamental idea of the law had been to place a curb on the increase of the slave population by importation and these acts were in direct opposition to the intention of the enactments.
An index of the inefficiency of the existing provisions regarding importation can be found in the figures on the growth of the slave population during this period when it is borne in mind that legally slaves could not be imported, except for personal use, after the year 1794. The slave population in 1790 had been 11,830 and by 1800 had increased to 40,343 or at the rate of 241.02 per cent; in 1810 there were 80,561 slaves or an increase of 99.69 per cent; in 1820 there were 126,732, a gain of 57.31 per cent; and by 1830 they had increased 30.36 per cent to a total of 165,213. During the same period there was a great increase in the white population but it was always from 20 per cent to 40 per cent below that of the slaves. It appears that the law prohibiting importation was not as effective as it should have been. While none of the statesmen appear to have figured from the statistical viewpoint there was no end of discussion regarding the necessity of extending the law to include more than the question of intent at the time of importation.
The avowed resolution of Kentucky to deal with the slavery question in the most humane manner and to stop any unscrupulous dealing in slaves for the mere sake of profit is nowhere more clearly shown than in the firm action which was taken not only in the court room but in the legislative halls when it was found that advantage had been taken of the letter of the law at the expense of its spirit. On February 2, 1833, the legislature passed a law prohibiting all importation of slaves even for personal use. The only exception provided in this case was that emigrants were allowed to bring in slaves, if they took the oath that had been provided in the law of 1815. The evil mentioned above brought about by hiring slaves for excessively long terms was prohibited by declaring illegal any contract which extended beyond one year and exacting a penalty of $600 for each offense. This law of 1833 was destined to be the crux of many a heated argument for the remainder of the slavery period. Many a candidate for office during the next thirty years rose to victory or fell in defeat because of his position with regard to this one statute of the State. It was the briefest of all the enactments on the slavery question but it was by far the most important and far-reaching provision that the legislature ever enacted in connection with the institution.306
It is noticeable that this measure was not brought about in any sense by the activities of the abolitionists, for they had not at that time made their appearance in the State. It was an honest endeavor on the part of the native population, slaveholding as well as non-slaveholding, to carry out the spirit of their State constitution which had been adopted back in 1792. Thomas F. Marshall, who later was the leader of the Lexington group which removed Cassius M. Clay's True American to Cincinnati, has borne testimony to the fact that the slaveholding element voted for the law of 1833. "At the time of the passage of this law," said he, "the sect known by the title of 'abolitionists' had not made their appearance. And, as I was sworn then upon the constitution of my country, by all the obligations of that oath, I affirm now that I do not believe that the principles and designs ascribed to that party were in the contemplation of any human being who voted for the law. I was myself not only never an abolitionist, but never an emancipationist upon any plan which I ever heard proposed."307
But the question was not settled for all time, for with the coming of the abolitionist element there was a general tendency throughout the State to enact stricter laws governing slaves. Many who had voted for the enactment began to cry for a repeal of the law, but it was not until the session of 1841 that it was seriously debated in the general assembly. Then after a long and ardent discussion in the House of Representatives a vote was taken on the ninth of January—with 34 in favor of the repeal and 53 against it. Never within the previous decade had a bill before the House produced such popular interest.308 It came up in the Senate at the session of 1843 but after another warm debate it failed by a vote of 14 to 21. Sentiment for the repeal continued to grow and in 1849 the law was amended so as "no longer to prohibit persons from purchasing and bringing into the State slaves for their own use."309 This changed the situation back to what it was before 1833, for it will be recalled that the main feature of the law of 1833 compared with that of 1815 was the prohibition of importation even for personal use. It could easily have been predicted that such an amendment would pass, for the legislature of 1847 had passed 27 distinct resolutions granting to as many individuals the right to import slaves for personal use. The session of 1848 made 24 similar provisions.
This apparently radical swing towards the side of the slave owner in 1849 was more than likely brought about by the very intense campaign which was carried on by the emancipationists. Such a movement served to unite the slave forces against any attack upon the institution. This tendency was shown not only in the halls of the State legislature but in the constitutional convention which met later in the same year. Although the abolitionists had looked forward to some advanced constitutional provisions on emancipation and the inclusion of the law of 1833 in the organic law of the State they were astounded to be met with the virtual repeal of that statute by the legislature. On the other hand the constitutional convention not only rejected bodily all the reform measures but added to the Bill of Rights this extraordinary amendment: "The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatsoever."
The slave trader once more had the courage to appear in the State. Richard Henry Collins in an editorial in the Maysville Eagle, November 6, 1849, gives us some vivid evidence of the effect which the repeal of the law of 1833 had had in a few weeks' time. "A remarkably forcible and practical argument in favor of incorporating the negro law of 1833 into the new constitution reached this city in bodily shape on Sunday, per the steamer Herman from Charleston, Virginia. Forty-four negroes—men, women and children—of whom seventeen men had handcuffs on one hand and were chained together, two and two, passed through this city for the interior of the State, under charge of two regular traders. We opine that few who saw the spectacle would hereafter say aught against the readoption of the anti-importation act of 1833." Such scenes as this were the result of the passage of an innocent-looking measure which allowed citizens to import slaves for their own use, but which could really be made to include almost any influx of slaves.
No further change in the importation laws was made until the crisis immediately preceding the Civil War, when practically all opposition was removed and the law of 1833 was abolished in its entirety.310 Explanations of the sudden turn of mind are not hard to find for the enactment was passed amid the turmoil and chaos brought on by an impending war and the radical slaveholders found it easy to get votes for their side in a last vain endeavor to save the institution, not so much from an economic standpoint as from a matter of principle. The last chapter in the legal history of the importation problem in Kentucky, however, had not yet been written. After three years of the armed conflict between the North and the South, Kentucky, which had remained loyal to the Union and fought against the slave power of the South, reenacted on February 2, 1864, the old law of 1798 on the prohibition of the importation of slaves.311 The wording was somewhat different, but the essential provisions were the same. Coming at such a time, it never had any significance in the slavery problem in the State, but it is interesting as one of the last vain efforts of the institution before it was mustered out of the State by an amendment to the federal constitution, which was passed without the assent of the State legislature of Kentucky.
No less serious than the question of importation was the problem of the fugitive slave. This has been treated many times and every discussion of it has involved much of what transpired in Kentucky or on its borders. It is not the purpose here to repeat any of that story because it belongs rather to the anti-slavery field, and, furthermore, has been recently very well treated by A. E. Martin in his Anti-slavery Movement in Kentucky. We are here concerned with the legal phase of the fugitive problem as it existed in Kentucky throughout this period, as an internal question; in the relation between the State and other States; and between the State and the federal authorities. In so far as it relates to the law within the State such a discussion naturally divides itself into two phases—those measures which affected the fugitive slave himself, and those which were directed towards conspirators who might have brought about the escape of slaves. The former group of laws were enacted, for the most part, in the early days of statehood, for a runaway slave was a natural evil in any condition of servitude. The latter group of measures were passed in the later days of the institution when the anti-slavery propagandists came in from the North, for until then there were no cases of enticement. A large majority of those who were placed on trial for conspiracy in the history of slavery in Kentucky proved to be outsiders who had come into the State after 1835. The citizens of the commonwealth who were opposed to the institution were satisfied to confine themselves to mere words advocating the emancipation of slaves.
The State early adopted the slave code of Virginia in regard to the treatment of runaway slaves just as it did in regard to the general legal rights of the bonded Negro but provided more drastic regulations in 1798. Any person who suspected a Negro of being a runaway slave could take him before a justice of the peace, and swear to his belief in the guilt of the accused. Being provided with a certificate from the justice where he found the slave, the apprehender could then take the fugitive back to the owner and might collect ten shillings as a reward and an additional shilling for each mile of travel necessary in bringing the slave to the master. If the money should not be paid, the person entitled to it could recover the sum in any court of record in the State upon the production of his certificate of apprehension as legal evidence.312
In many cases the runaway could not be identified as the property of any particular owner, so provision was made for the commitment of the offender to the county jail. The keeper was forthwith to post a bulletin on the courthouse with a complete description of the Negro. If at the end of two months no claimant appeared the sheriff was to publish an advertisement in the Lexington Gazette for three consecutive months so that the news of capture would reach a larger public. In the meantime the sheriff was authorized to hire out the fugitive and the wages thus received were to pay for the reward of the captor and the expenses incurred by the county officials. If the owner appeared during the period and proved his property, he could have the slave at once in spite of any labor contract, providing he would pay any excess of expenses over wages received. But often the master never appeared and if a year had expired since the last advertisement had been published in the Gazette, the sheriff could sell the slave and place the proceeds of the sale plus the wages received over the expenses, in the county treasury. This sum was credited to the unknown owner, for if he should appear at any future time the county would reimburse him for his loss, otherwise the fund reverted to the county.313
This legal code for the apprehension of runaway slaves remained practically unchanged throughout the period of slavery. The only amendments which were ever made were those for the increase of the reward to the captor and it is significant that the first of these changes did not come until more than a generation later in 1835. Then the compensation was divided into three classes: for those captured in their own county, $10; in another county, $20; out of the State, $30.314 Just three years later it was found necessary to increase this by the following interesting law: "The compensation for apprehending fugitive slaves taken without this commonwealth, and in a State where slavery is not tolerated by law, shall be one hundred dollars, on the delivery to the owner at his residence within this commonwealth, and seventy-five dollars if lodged in the jail of any county in this commonwealth, and the owner be notified so as to be able to reclaim the slave."315 There were no more advances until a law of March 3, 1860, increased the reward to one hundred and fifty dollars if the slave were caught outside the State and brought back to the home county; one hundred and twenty-five dollars if caught outside the State and brought back to any county in Kentucky; and twenty dollars if caught anywhere in the home county.
The trend of these laws, from the viewpoint of the rewards alone, shows the increasing importance of the fugitive problem to the slaveholding group. It is noticeable that from the year 1798 until 1835 there was not sufficient pressure upon the State legislature to increase the reward to the captor of a runaway. It is further evident from the scarcity of contemporary advertisements that there were comparatively few Negroes who ventured forth from the neighborhood of their masters. But with the rise of the anti-slavery movement in the North and the growth of abolition sentiment as expressed by the apostles of Negro freedom who had come from across the Ohio, the slaves tended to run away in ever-increasing numbers. This was soon followed by a more rigid policy of apprehension upon the part of the Kentucky legal authorities, apparent in the increasing reward.
Not all cases of fugitives were to be reached by a mere system of capture and reward. Barely did a slave make his escape into a free State without the aid of some one in sympathy with him. Hence the need for legal machinery to punish those who assisted runaways. From a chronological point of view the laws governing such cases divide themselves into two parts; in the early days they refer to those who would help a slave who had already escaped; in the later period they were directed towards those who induced slaves to leave their home plantations.
Whichever of the free States he tried to reach it was necessary for the Negro to cross the Ohio River to get to his haven of refuge. If the Kentucky authorities could prevent him from crossing the stream on the northern and western boundary, they could prevent any slave from making a successful escape. Consequently the legislature as early as 1823 attempted to solve the problem by passing a law forbidding masters of vessels and others from employing and removing Negroes out of the State.316 This act prevented runaways from securing work on a steamboat with the specific purpose of leaving once they were on free soil. But as usual this enactment was not effective, because there was a loop-hole in it. The State assembly in 1831, therefore, provided that no ferryman on the Ohio River should transport slaves across from Kentucky. No other person, not owning or keeping a ferry, was to be permitted to set slaves over, or to loan them boats or watercraft. Slaves could only cross the river when they had the written consent of their masters. Each and every owner of a ferry was required to give bond in the sum of $3,000 to carry out the spirit of the law; and for every violation he was subject to a fine of $200.317
Not content with their previous efforts the general assembly of 1838 went still further and prohibited slaves from going as passengers on mail stages or coaches anywhere within the State, except upon the written request of their owners, or in the master's company. The liability for the enforcement of the law rested upon the stage proprietors, who were to be fined $100 for each slave illegally transported.318
No stringent laws were made against the enticement of slaves to run away until 1830 when the abolitionists first began to appear. Until that time there seems to have been no need for any legal enactment regarding the question. The only trouble previously had been with the whites and free Negroes who aided a slave already on his way to the North. It was in response to the popular demand that on January 28, 1830, the State legislature provided severe penalties for any person found guilty of (1) enticing a slave to leave his owner, (2) furnishing a forged paper of freedom, (3) assisting a slave to escape out of the State, (4) enticing a slave to run away, or (5) concealing a runaway slave. Should a person be suspected of any one of these offenses and not be found guilty, he was to give security for his good behavior to avoid all accusation in the future.319
The most interesting legal case based on this law was that of Delia Webster, a young lady from Vermont, who was tried in the Fayette Circuit Court in December, 1844, for the enticement of a Negro slave boy from Lexington. The details of the trial show that the court was just and fair in spite of the fact that both Miss Webster and her copartner, Calvin Fairbank, were not citizens of the State and had furthermore used all kinds of deceit to accomplish their purpose. For the sake of aiding one Negro slave boy to reach freedom they went to the expense and trouble to feign an elopement to Ohio via Maysville, but the Lexington authorities caught them as they were coming back on the Lexington Pike near Paris. At the trial it was shown that Fairbank was in Kentucky for no other reason than to induce slaves to escape to the North and that Miss Webster had come to Lexington as a school teacher merely as a cloak for her abolitionist work. The evidence offered by the prosecution was damaging in the extreme. The defense put forth no data for her side at all, evidently preferring to be hailed as a martyr to the cause for which she stood. The jury brought in a verdict of guilty and she was sentenced to serve two years in the State penitentiary.320
The young accomplice, Calvin Fairbank, proved to be the most persistent abolitionist the Kentucky authorities ever encountered. He pleaded guilty to the indictment as charged and was sentenced to serve 15 years in the penitentiary, to which he was taken February 18, 1845. Evidently convinced that he had been punished sufficiently Governor John J. Crittenden pardoned him August 23, 1849, on condition that he leave the State at once.321 But such an ardent young enthusiast for the cause of Negro freedom soon found that there were other slaves who were in need of his aid and on November 3, 1851, he came across from Jeffersonville to Louisville under the cover of night and "kidnapped" a young mulatto woman who had been doomed to be sold at auction.322 Presumably in the hope of rescuing other slaves he remained in the vicinity for several days until on the morning of November 9 he was arrested by the Kentucky authorities. Fairbank was placed in jail pending his trial, which took place in the following March, when he was again sentenced to serve 15 years at hard labor in the State penitentiary. He began his term March 9, 1852.323 This time he was not so fortunate in an early release. The chief executives of the State from time to time refused to pardon him. In April, 1864, Governor Bramlette was called to Washington by President Lincoln for a conference and Richard T. Jacobs, the Lieutenant-Governor, became the acting Governor. This son-in-law of Thomas H. Benton had taken more or less pity on Fairbank, for he had stated to the prisoner that if he ever became the chief executive he would release him. The opportunity thus being presented for the first time, Jacob pardoned Fairbank on April 15, 1864, after a continuous imprisonment of twelve years. Such was the experience in Kentucky of an ardent northern abolitionist who boasted that he had "liberated forty-seven slaves from hell."324
The systematic stealing of slaves from Kentucky had begun about 1841 and at the time of the Webster and Fairbank trial was at its height. This movement was one of the results growing out of the animosity created by another legal case which occurred in 1838—that of the Rev. John B. Mahan of Brown County, Ohio. This Methodist minister, although living in the State of Ohio, was indicted by the grand jury of Mason County, Kentucky, for having aided in the escape of certain slaves. Governor Clark, of Kentucky, then issued a requisition on the Governor of Ohio for Mahan as a "fugitive from justice." Upon receipt of the demand, the chief executive of Ohio immediately issued a warrant for the arrest of the minister. A short time later he became convinced that this step had been too hasty, because Mahan had never been in Kentucky. His offense had merely consisted in helping runaways along the "underground railroad," once they were on free soil.
Hence, Governor Vance sent a special messenger to the chief executive of Kentucky redemanding the alleged fugitive from justice. Governor Clark made this very cordial and diplomatic reply:
The position assumed by you in relation to the fact of Mahan having never been within the limits of Kentucky is clearly correct, and if upon the legal investigation of the case it be found true, he will doubtless be acquitted. I feel great solicitude that this citizen of your state, who has been arrested and brought to Kentucky, upon my requisition, shall receive ample and full justice, and that, if upon legal investigation he be found innocent of the crime alleged against him, he shall be released and set at liberty. I will, therefore, address a letter to the judge and commonwealth attorney of the Mason Circuit, communicating to them the substance of your letter, and the evidence which you have transmitted to me.325
The efforts of the Governor of Ohio were eventually successful, for in spite of his slaveholding sympathies Governor Clark wrote to the judge of the Mason Circuit and the latter charged the jury in no uncertain terms regarding the jurisdiction in the case. After a trial of six days Mahan was acquitted.
The importance of this case does not rest in the trial and its events but rather in the reactions which it had upon the Kentucky populace. No one doubted that Mahan was guilty of aiding slaves; but it was seen that he had been shrewd enough to confine his activities to the State of Ohio, where the Kentucky authorities had no jurisdiction. In his opening message to the State legislature, which met the next month after the acquittal of Mahan, Governor Clark voiced the sentiment of a large majority of Kentuckians. Bear in mind that these words came from the same man who a month before had advised the Circuit judge of the illegality of the Mahan indictment.
Some of the abolitionists of an adjoining state, not contented with the mere promulgation of opinions and views calculated to excite a feeling of disaffection among our slave population, and to render this description of property insecure in the hands of its proprietors, have extended their operations so far as to mingle personally with our slaves, to enter into arrangements with them, and to afford them the means and facilities to escape from their owners. This flagitious conduct is not to be tolerated—it must be checked in its origin by the adoption of efficient and energetic measures, or it will, in all human probability, lead to results greatly to be deprecated by every friend to law and order. This demon-like spirit that rages uncontrolled by law, or sense of moral right, must be overcome—it must be subdued; its action in the state should be prohibited under such penalties as will effectually curb its lawlessness and disarm its power.326
In pursuance of this and similar recommendations the State legislature early in 1839 despatched a delegation of members to the general assembly of Ohio then meeting at Columbus. These men were charged to secure a law in Ohio for the better security of Kentucky fugitive slave property. The Kentucky officials had always been confronted with the problem of recovering runaways captured in Ohio, even when they personally knew the captive. The old law of 1807 in Ohio was never lax in the enforcement, but the plea of habeas corpus was habitually used for the defendant and, furthermore, it often happened that the necessary proofs of ownership were not in evidence. These facts coupled with the publicity of the Mahan trial brought about the peculiar legislative commission from Kentucky.
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