with Notes of Reference (1803)
St. George Tucker
Of Slaves, Considered as Property, in Virginia
IN considering the various acts which relate to slaves as property, it may be of use to premise some few observations, on the nature, properties, qualities, and incidents, appertaining to the objects of real and personal estates, respectively, and as distinguishing the one from the other.
The primary object of real property is land; whatever is permanently annexed to, or connected with it, or arises out of it, or issues from it, are considered as secondary objects of the same nature; because whilst they remain in such a state of connection with it, they are regarded as apart of the land itself; but when severed from it, they cease to be considered as the objects of real property.
The primary, and almost universal objects of personal property are all things of a moveable and transitory nature; which may attend the person of the owner wherever he goes.
Hence there is in the nature of these primary objects, a permanent and irreconcilable difference, depending upon their several properties and qualities. This difference consists in the immoveable and permanent, nature of land; and in the moveable and perishable properties and qualities, of such things as are neither annexed to, nor connected with it, or inseparable from it.
This difference being founded in the nature of the objects themselves, the one fixed, immoveable and perpetual, the other moveable and perishable, must ever remain unchanged, as the properties and qualities upon which the difference is founded. But the incidents to real and personal property, respectively, being merely creatures of the juris positivi, or civil institutions of different countries, there is no such irreconcilable difference between them, but that the same positive rules of law may be applied indifferently, to both, according to the will of the legislature, as good policy may require.
Thus an estate in lands, if limited for any number of years, even a thousand, is regarded as a chattel; whilst an estate in the precarious life of a villein might be an inheritance in fee simple, and as such, considered as a real estate. Co. Litt. 307. These instances demonstrate that the incidents to real and personal property, respectively, are merely creatures of the juris positivi, or ordinary rules of law concerning them; and may be altered and changed to suit the circumstances, convenience, interest and advantages of society…. Thus in England it might be for the benefit of commerce to consider a lease for a thousand years, in lands, as a mere chattel; and in Virginia it might have been equally for the advantage of agriculture to consider the slave who cultivated the land as real estate. And probably the rule of law might be applied with as little difficulty in the one case, as in the other.
This rule of positive law, whereby a slave whose breath is in his nostrils, or who may run away, and escape from his master forever, might “be regarded as real estate, was not unknown to the ancient common law of England. For a man might have an estate in fee, or in tail, or for life, or for years in a villein. Co. Litt. 307. And of an estate of inheritance in a villein, a woman might have been endowed, and a man tenant by the curtesy, Ibid. 307 and 124. And in this latter case the property in the villein should descend to the heir and not go to the executor. Ibid. 183. But if he had only an estate for years, and not an inheritance in the villein, the executor and not the heir should have him. Ibid. 117, 124. A villein also might have been annexed to lands, so as to descend and pass with them, by deed or devise, in which case he was called a villein regardant. Litt. s.181. Of these rules of the ancient law the legislature cannot be presumed to have been uninformed.
Having promised these few observations, I shall now proceed to consider the several acts which, relate to slaves, step by step; and thereby endeavor to discover their operation and effect from time to time.
1. First, as affecting the slaves themselves as objects of property generally.
2. Secondly, as affecting the rights of the heir at common law.
3. Thirdly, as affecting the right of widows.
4. Fourthly, as affecting the rights of husbands.
5. Fifthly, as affecting the rights of executors and administrators.
6. Sixthly, as affecting the rights of creditors.
1. The first act which relates to this subject is that of 1705, c. 3, declaring slaves in Virginia to be real estate. The first and second sections of which are as follows:
“For the better settling and preservation of estates within this dominion.” Be it enacted, etc. that from and after the passing of this act all negro, mulatto and Indian slaves in all courts of judicature, and other places, within this dominion shall be held, taken, and adjudged to be real estate, and not chattels, and shall descend unto the heirs and widows of persons departing this life according to the manner and custom of lands of inheritance held in fee simple.
The effect of this declaration, if there had been no other clause in the act, I apprehend must have been as follows.
1. That so far as might respect the slaves themselves, as objects of property, a man might have the same estate in them, as he might have had in a villein by the common law, viz. an estate of inheritance, or for life, or for years.
2. That the slaves would have vested, immediately, in the heir at common law, in the same manner as lands in fee simple; that is to say, subject to the dower of the wife, or the curtesy of the husband; and to the debt of the creditor by bond wherein the heir was bound,1 I presume: and consequently that the sole right of action to recover such as might be out of possession at the death of the ancestor vested exclusively in the heir.
3. That the wife would have been entitled to dower in all such slaves, wherein the husband had such an estate of inheritance, as that she might have been endowed thereof, if the same had been lands.
4. That the husband might have been tenant by the curtesy, of such of the slaves of the wife, wherein she had an estate of inheritance, as were reduced into possession, at any time during the coverture.
5. That the executor or administrator had neither any interest in, or power over the slaves of his testator or intestate, unless the same were given by the express directions of his will.
6. That the slaves were not liable to the debt of a simple contract creditor; but that the heir might have been sued upon the bond of his ancestor, wherein the heir was bound, and that the slaves which descended to him should be deemed real assets, in his hands, for the payment of the debts of his ancestor.
Such is the construction which I apprehend must have been unavoidably adopted, had there been no other clause in this act. Let us now consider those clauses which follow, and see how far they necessarily control, or change this construction.
sect. 3. Expressly, except slaves imported for sale, and remaining unsold in the hands of any merchant or factor, his executors, Sec. on these the act had no operation, and therefore this clause cannot affect the construction of it.
sect. 4. 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.”
sect. 5. No slave shall be liable to be escheated for want of lawful heirs, but all slaves shall, in that case, be accounted and go as chattels, and other personal estate.
sect. 6. That no sale or alienation of a slave is obliged to be recorded, as is by law required to be done upon other real estate; but the same may be made in the same manner as might have been done before the passing of that act.
sect. 7. Possession of a slave shall not give the owner a vote in elections. This clause cannot influence the construction.
sect. 8 and 9. Slaves may be recovered by action personal, or where the nature of the case shall require it, by writ de flartitianc facienda, or of dower, which are in their nature real actions: these two clauses therefore may be considered as balancing each other, and furnishing no rule to control the former construction made upon the act.
sect. 10. The slaves of a person dying intestate, leaving several children, shall in that case, (except the widow’s dower which is to be first set apart) be inventoried and appraised, and the value thereof equally divided among all the children, and be paid by the heir to whom they shall descend, by virtue of that act,
sect. 11. A widow seized of slaves in right of dower, and transporting them, or any of them out of the colony without consent of the heir, forfeits all her dower in her husband’s estate, to him.
On these several clauses we may observe,
1. That the analogy between slaves and villeins, is somewhat diminished by the fourth section, which makes them liable to the payment of debts, and to be taken in execution for them; which villeins do not appear to be subject to, as mentioned in the preceding note.
2. The heir though entitled to have the slaves, is accountable under the tenth section, to the younger children for their proportions of the appraised value; hence as well as under the fourth section, it becomes a doubt whether he is liable to an action as heir, in virtue of the descent of slaves, only.
3. The widow’s right of dower remains unimpeached by any of these clauses, though a forfeiture thereof, both in slaves and lands,, might be incurred under the eleventh section, by sending, or permitting them to be sent, out of the colony.
4. That the right of the husband to the slaves of his wife is not affected by any thing contained in either of these clauses.
5. That the right of executors over the slaves of their testator, where there is no specific devise in the will relating thereto, is rendered doubtful, where there may be an heir, by the fourth section; which doubt, both in respect to executors and administrators, is still further increased by the act of the same session, for distribution of intestate’s estates, c. 7, and by a subsequent act of 1711, c. 2, (Edi. 1733.) directing the manner of granting probate and administrations, and other subsequent acts, which will be noticed in the sequel.
6. That slaves are liable for the simple contract debts of persons deceased, as well as for their bond debts; and might be taken in execution for the same “as other chattels, or personal estate may be.”
Here we may inquire, against whom must a creditor have brought a suit for a simple contract debt, so as to entitle him to levy an execution upon the slaves of his debtor deceased?
The answer seems to be, the heir not being responsible for the simple contract debt of his ancestor, by the common law, even though lands might have descended to him, and this act not having given any action against him as heir, on account of slaves descending to him from his ancestor, and he being moreover chargeable to the younger children, whenever there were such, for their respective proportions of the appraised value, there seems to be no ground to conclude that the action could be maintained against him. On the other hand, the executor being the representative of his testator so far as relates to debts and contracts (except such wherein the heir is named, and bound by the obligation of his ancestor) and the right of action either for, or against executors in any case where they might have sued or been sued before this act, not being taken away, it might be presumed that the creditor (unless he meant to charge lands, in the hands of the heir) must still bring his action against the executor, as before the passing of this act.
But inasmuch as the law gives the slaves to the heir, by descent, (that is to say, immediately upon the death of his ancestor: for that seems to be the construction of the words, according to the manner and custom of lands of inheritance, held in fee simple,) and yet the common law gives an action against the executor, only, for the simple contract debt of his testator, this construction, if maintained, would probably introduce some irreconcilable contradictions between the second and fourth sections of the act; or, should the attempt to reconcile them be made, it might be productive of infinite inconvenience and perplexity.
1. For, first; if it be supposed that the creditor must pursue his action against the heir to whom slaves had descended, the nonage of the heir, by causing the parol to demur until he was of age, might, in addition to the inconvenience before stated, interpose a temporary bar against the creditor’s claim, in three cases out of four that should happen; and on the other hand this circumstance, viz. the frequent nonage, (and even infancy of the heir, in its strictest sense) would, in all such cases, render the heir the most unfit person that could be found to contest the justice of any claim which might be offered against his ancestor’s estate; and for this reason probably, among others, the common law would not subject the heir to a suit for any unliquidated claim or demand against his ancestor, nor even for his solemn contracts under seal, unless they respected the. lands descended to him; or he was therein particularly named, and real assets actually descended to him. And even then, the law allowed him to attain his full age, that he might be able to defend himself without the aid of a guardian.
2. Secondly, if it were supposed that the creditor must first establish his debt by a judgment against the executor, and that upon that judgment, in case nulla bow were returned upon an execution, issued against the chattels of the testator in the hands of the executor, a scire facias might issue against the heir, to show cause why the creditor might not have his execution levied upon the slaves descended to the heir, this would produce an inconvenient circuity of proceeding, and might also open a door for fraud upon the heir by collusion between the creditor and the executor; the latter of whom, not being responsible for the debt, might either make no defense, or only a colorable defense against any claim, however unrighteous.
3. Thirdly; if it were supposed that the creditor upon any judgment obtained against any executor might, without any scire facias or other warning to the heir, levy his execution upon the slaves in his possession, this might not only be productive of the same inconveniences, last mentioned, but even greater, of the same nature, for the heir having no warning, nor any means of showing cause why the executor alone should be charged, either on account of assets in his hands, or other ground of liability, might be exposed to still greater injury, and hardship: besides, that the levying an execution upon the property of him who was no party to the suit, might occasion frequent breaches of the peace.
4. Fourthly; if it were supposed that the executor might possess himself of the slaves of his testator, and keep them in his possession until he had paid all his debts, and then deliver them over to the heir, this construction would admit of several answers, and objections, as,
1. First; slaves, being altogether unknown to the common law, could riot be deemed personal assets under that law, any more than lands or villeins, in which the testator had an estate of inheritance; both which were known to that law, and yet the executor had no right to either, nor could be made liable by reason of either: and the reason seems to be much stronger in the case of slaves, which are altogether unknown to that law, as objects of property. Consequently, executors could be no more chargeable by the common law for the value of their testator’s slaves, than they could for the value of dogs, or other animals, of no value at the common law: and not being chargeable by reason thereof, they could have no right, by the common law, to possess themselves thereof; for there being no liability, nor any trust; (in respect to slaves) reposed in them by the common law, so neither could they have any interest in, or authority over them, by that law.
2. Secondly; there was not at the time of passing this act, any act of the colonial legislature, (nor had there ever been such an act as far as I can discover) by which executors or administrators were authorized to possess themselves of their testator’s slaves, or to dispose thereof, or were made liable for the debts of their testator, for the value thereof. The first act, which I can find, that gives an executor any authority whatsoever over the slaves of his testator, and which will be particularly noticed hereafter, passed in the year 1711, about six years after this act.
3. Thirdly; if it be contended that the usage of the colony gave to the executor such an authority, it may be answered, that such an usage, even were it of greater authority, could not prevail against the express words of an act of assembly, declaring that slaves “shall descend to the heirs and widows of persons departing this life, according to the manner and custom of land of inheritance held in fee simple;” which is altogether incompatible with such an interest and authority in the executor as this supposition seems to require.
4. If it be contended that an act of the same session (c. 7.) entitled an act for the distribution of intestates’ estates, gives such an authority under the construction of the seventh section, which “that a due regard may be had to creditors, provides, that no distribution of the goods of any person dying intestate shall be made until nine months after the intestate’s death,” it may be observed, that slaves are not within the purview of that act: that the distribution of the personal estate therein directed, is not reconcilable to the manner in which slaves must descend; and that the words of the act are, “no such distribution as aforesaid, of the goods of any person dying intestate shall be made, until nine months, etc.” and, therefore, that part of the act which relates to giving security to the administrator to refund, has no relation whatsoever to the heir, who might possess himself of the slaves descended to him, without the assent of the administrator, (executors not being mentioned in that clause) and without giving any security to refund, as those entitled to distribution must do, before they were entitled to receive any part of the personal estate of the deceased.
In what manner the difficulties and inconveniences which may have occurred in the construction of this act were explained, or obviated; or, what was the ordinary practice in cases arising under it, it is impossible, at this distance of time, to say. I shall therefore desist from any attempt of that nature, and proceed to consider two intermediate acts which passed between the year 1705 and the year 1727.
II. Secondly, then; we are to consider the operation and effect of the act of 1711, c. 2. (Edition of 1733) entitled “an act directing the manner of granting probate of wills and administration of intestates estates.”
The tenth and twelfth sections of that act prescribe the oaths to be taken, and the condition of the bonds to be given by executors and administrators, respectively; and these require that they shall respectively make “a true and perfect inventory of all and singular the goods, chattels, and credits of the deceased. And the fifteenth and sixteenth sections, require them, respectively, to exhibit upon oath, at the next court after qualifying,” a true and perfect inventory of all and every part of the estates, whereof the executors or administration has been to them committed; and the court shall cause appraisements of all decedents’ estates to be made in money, as soon as possible.
If the act had concluded here, I think, we might have ventured to pronounce, that it had no relation whatsoever to the act of 1705, declaring slaves to be real estate, and to descend to the heirs and widows of persons departing this life, as lands of inheritance in fee simple, for the reasons already mentioned under the former head. But the seventeenth and eighteenth sections require more particular notice, being in the following words.
sect. 17. “And for preventing all disputes that may arise concerning the right to crops upon the ground, it is hereby enacted and declared, that where any person shall die intestate whilst his crop of Indian corn, wheat or other grain, or tobacco is on the ground, unfinished; or dying testate, shall not have otherwise directed, all and every servant and slave employed in the said crop, at the time of such decease, shall be continued on the plantations, and employed in the crop, or crops, respectively, until the five and twentieth day of December then next ensuing; and that then the said crop shall be deemed and taken to be assets in the hands of the. executors or administrators, to be valued by appraisers, any law, custom, or usage to the contrary notwithstanding. And the slaves employed in the said crop, as aforesaid, shall, after the said five and twentieth day of December be delivered to such person or persons, to whom the same is declared to belong, by an act, entitled an act, declaring slaves to be real estate.”
sect. 18. “Provided always, and it is the true intent and meaning of this act, that no executor or administrator shall be answerable for the price of any negro or other servant, or slave, which shall happen to die before the said twenty-fifth day of December, although such negro, or other servant or slave shall be in the inventory of the deceased person’s estate.”
No other clause in the act has any mention of, or particular relation to slaves. In the construction of it, we may venture to say,
1. That nothing therein contained can be construed to repeal that declaration in the act of 1705, c. 3. that slaves, in all courts of judicature and elsewhere, shall be held, taken, and adjudged to be real estate and not chattels.
2. That the interest of the heir, is so far only affected, as to postpone his possession of slaves actually employed in a crop (but no others) until they may be presumed to have finished it, (viz. at Christmas,) when they shall be delivered up to him.
3. That the right of dower is affected, only in the same manner as the right of the heir.
4. That the possession of the tenant by the curtsey may be prolonged thereby, for the same period as the possession of the heir may be postponed, but his right is no otherwise affected.
5. That the executor (where the testator shall not have otherwise directed) has thereby an authority to possess himself of the slaves employed in the crop, until the crops may be finished, that is, until the ensuing Christmas; without recompense for their labor, and without being answerable for such as may happen to die before that time; but that he has no further authority nor any interest in the slaves themselves, although the law gives him an interest in their labor during that period….
6. That the interest of creditors is no further affected by this act, than as it removes all doubts concerning the crops growing, whether they should go to the executor, or to the heir.
This act probably laid the foundation for the practice which seems to have since prevailed, for the executor to possess himself of all the slaves of his testator; in which his example was probably followed by the administrator; the executor, indeed, might be authorized by the will, in many cases; but the administrator could have no such warrant, and the law does not authorize him, to retain the slaves for any other purpose, or in any other manner, or for any longer period…. We shall therefore proceed to the next act to be found in our code, that any way relates to this subject.
I. The act of 1727, c. 4. declares that the act declaring slaves to be real estate had been found by experience very beneficial to the colony, yet, that mischiefs had arisen from the various constructions, and contrary judgments and opinions given upon it, whereby many people had been involved in lawsuits and controversies, which were still like to increase; for remedy whereof, and that the said act may be fully and clearly explained, and amended.
sect. 2. Declares that the same shall thereafter be construed, and the true intent and meaning thereof is thereby declared to be, in the several cases therein after mentioned, as the same is therein after expressed, and declared, and not otherwise; that is to say,
sect. 3. Whenever any person shall, by bargain and sale, or gift, either with, or without deed, or by his last will and testament in writing or by any nuncupative will, bargain, sell, give, dispose or bequeath any slave, the same shall transfer the absolute property of such slave to the person to whom the same shall be sold, given or bequeathed in the same manner as if such slave were a chattel; and no remainder of any slave shall or may be limited by any deed, or the last will and testament in writing of any person whatsoever, otherwise than the remainder of a chattel personal by the rules of the common law can or may be limited, except in the manner therein after mentioned…. The ninth section confirms all former judgments of the general court, or any county court. And the tenth section further provides,
That where any person had theretofore by deed executed in his lifetime; or by his last will and testament in writing, disposed of any slave for the life or lives of any person or persons whatsoever, and had thereupon limited any remainder, the same shall be good and effectual in law, to transfer the absolute property of such slave to the person or persons to whom such remainder had been limited, and no otherwise. The three following sections providing for the manner in which slaves might be annexed to, and descend, pass and go with lands, as a part of the freehold, will be noticed below.
sect. 4. And where any slave has been, or shall be conveyed, given, or bequeathed, or has, or shall descend to any feme covert, the absolute right, property and interest of such slave is thereby vested, and shall accrue to, and be vested in, the husband of such feme-covert; and where any feme sole, is or shall be possessed of any slave, as of her own property, the same shall accrue to, and be absolutely vested in the husband of such feme, when she shall marry.
sect. 5. Infants above the age of eighteen years may bequeath any slave whereof they may be possessed, by will in writing.
sect. 6. Declares that slaves shall not be liable to forfeiture except in such cases, where lands would be liable thereto.
sect. 7. And that no executor or administrator has, or shall have, any powder to sell or dispose of any slave or slaves, of his testator, or intestate, except for the payment of his just debts; and then only, where there is not sufficient of the personal estate to satisfy and pay such debts; and, in that case, it shall and may be lawful for the executor or administrator to sell and dispose of such slave or slaves, as shall be sufficient to raise so much money as the personal estate falls short of the payment of the debts.
sect. 8. A mother dying intestate and leaving slaves other than of her dower, the heir shall be accountable to the younger children for their proportion of the value.
sect. 9 and 10. Have been noticed above. sect. 11. And whereas the true design of the said act, and the policy thereof was, and is to preserve slaves for the use and benefit of such persons to whom lands and tenements shall descend, be given, or devised for the better improvement of the same, which cannot be done according to the custom of the colony, without slaves, and therefore it may be very advantageous to estates to establish a method for settling slaves and their increase, so as they may go and descend with lands and tenements: to which end,
sect. 12. It is further enacted that any person may by deed or will annex slaves and their increase to lands and tenements in fee tail, or for life or lives; and thereupon, the slaves so annexed shall descend, pass and go, as a part of the freehold and inheritance, in possession, reversion, and remainder, with such lands and tenements; And any slaves settled, conveyed or devised with the same limitations, and in the same deed or will with lands, shall be considered as annexed to, and shall descend, pass and go therewith, from time to time, as before mentioned.
sect. 13. Authorizes any tenant in tail of lands to annex slaves to his estate therein, which shall descend under the like limitations, as if such settlement had been made when the estate was first created.
sect. 14 and 15. Provide that any slaves so annexed as aforesaid, and their increase shall, notwithstanding, “be liable to be taken in execution, and sold, for the satisfying and paying the just debts of the tenant in tail for the time being; and such sale shall be good and effectual against him, or her, and his other issue, and all other persons whatsoever, claiming under such settlement.”
sect. 16. “Provided, nevertheless; that if any person shall hereafter be possessed of any slave or slaves in right of his wife, which shall be so annexed to lands as aforesaid, such slave or slaves shall not be liable to be taken in execution, for the satisfying any debt of such husband so as to bar the wife of any right which she may claim under any settlement made in pursuance of this act, after his death.
sect. 17, 18, and 19. Give to widows and younger children a remedy, by bill in equity, for their dower, or proportionable part of the value of slaves, against the heir, notwithstanding his nonage.
sect. 20 and 21. After reciting, that doubts had arisen whether slaves were comprehended under the provisions contained in the act of 1705, c. 7. for distribution of intestates’ estates, provide, that any widow not satisfied with the provision made for her by her husband’s will, may within nine months after his death renounce the same: And after such declaration, may demand and recover her dower of all the slaves whereof her husband died possessed, which she shall enjoy during her natural life; and after her death, or other determination of her estate, they shall go to the person in whom the property thereof would have vested, in case the dower had not been demanded: And moreover, such widow shall have such share of the personal estate of her husband, as by the said act is directed; but if such declaration be not made within the time limited, she shall be forever barred to claim any other part of her husband’s estate, than shall be given or bequeathed by such last will. In considering this act, I shall proceed, as before, to examine,
1. It’s operation and effect as it relates to slaves themselves, as the objects of property. And here we may observe that an important distinction seems to have been established between such as are not annexed to lands and tenements, held in fee, tail, or for life, and such as are so annexed, and held: of these in their respective order.
1. Slaves not annexed to lands and tenements in fee, tail, or for life, after the commencement of that act, seem to have been put upon the same footing with chattels, by the third, fourth and fifth clauses of the act, in the several cases therein mentioned.
2. By the seventh clause, they are rendered a kind of special unsete, which may not be touched until all personal assets are completely exhausted; on this subject more will be said hereafter under the head of executors; observing by the way, that the strong negative expressions in the beginning of this clause, and the restrictive terms used in the latter part of it, amount to a legislative confirmation of the construction made of the acts of 1705, and 1711, that the executor had no interest in the slaves of his testator, although the latter of these acts gave him a special authority over them, for a limited time, to wit, until the next Christmas.
3. The twenty-first section seems to prove that the legislature did not consider slaves as comprehended under the act of 1705, c. 7. for distribution of intestates’ estates.
4. In all other cases, slaves not annexed to lands seem to have been left upon the same footing as before the making of that act.
5. Slaves annexed to lands seem to have been perfectly assimilated, (as property,) to villeins regardant; with one material distinction from them, that they were still liable to be taken in execution for the owner’s debt, as before the making of that act: of this more will be said hereafter.
2. The interest of the heir, in slaves not annexed to lands, seems to be rendered somewhat doubtful, by the authority which the law gives to the executor or administrator, to sell such as may be sufficient to raise so much money as the personal estate falls short of the payment of just debts. It seems to be questionable, also, whether the slaves annexed to the lands of a tenant in tail, although clearly liable to be taken in execution for his debts, during his lifetime, would be liable, after his decease, to be sold by his executors or administrators, by virtue of the fifteenth section; which declares, “that they shall be liable to be taken in execution and sold for the satisfying and paying the just debts of the tenant in tail for the time being:” which latter words seem to restrain such liability to executions issued, and levied, during the life of such tenant in tail.
3. A distinction is clearly established by the twenty-first section, between the widow’s right of dower in slaves, and her right to a distributive share of the personal estate: The law being express, that she shall be endowed of all the slaves whereof her husband died possessed; but she may be entitled to a greater or less proportion of his personal estate, according to his circumstances; for the whole may go, perhaps, to pay debts; or, according to the number of children, that he may leave. Whereas the law seems to be clear and express, that she shall be endowed of the whole of his slaves whereof he died possessed.
And this I apprehend upon very good reason, for dower being both a legal and an equitable right, founded upon a valuable consideration in law, namely, the marriage, and often upon a further valuable consideration, in fact, namely, the portion of the wife, it seems impossible to assign any good reason, why the claim of a woman, whose whole property has probably vested in her husband, and which may constitute the whole of the property which he leaves, should be postponed to the claims of other creditors, founded upon considerations neither more strictly legal, nor equitable. This construction which I have given to the law, has, I believe, been generally rejected; though I cannot but think that it has been rejected without reason. For, in addition to what I have just advanced, it may be urged, that the construction which I give to the act may be reconciled to the justice due to legal creditors, as well as with justice to the widow, who is in a moral light, a creditor of an higher grade, and certainly may be regarded as a creditor for a valuable consideration, both at law, and in equity. For, as the right of dower does not extend beyond the life of the widow, the slaves which survive her might, after her death, and after satisfying her just claims, be applied to the payment of ordinary creditors, for their just debts; whereas if the ordinary creditor’s claim be preferred to that of the widow, the latter will be forever barred, and precluded from any satisfaction for her claims, however just and equitable.
4. The seventh section, by a kind of negative, pregnant, or side wind, gives to executors and administrators an authority (in case of a deficiency of assets) over the slaves of their testator, beyond what was either given, or could be implied, under any former act, for reasons already mentioned: whether this authority should have been exercised within the executor’s year, as we may call it, is left to conjecture. And how far this authority was coupled with an interest in the executor or administrator, may merit further inquiry.
It may be also worthy of inquiry, whether the executor or administrator had power to retain the slaves in his hands, beyond the following Christmas: or must then deliver them up; yet retaining a power over them, so far as to sell and dispose of such as might be necessary to supply any deficiency of the personal estate, for payment of debts.
5. The right of the husband to the slaves of his wife, not annexed to lands, is made absolute, if he reduces them into possession during the coverture: and if he survives her, he may recover them as her administrator: but if they be not reduced into his possession, during the coverture, and the wife survives him, they shall belong to her, or her representatives, as other choses in action.
But if slaves annexed to lands in tail, held by his wife, he could only be tenant by the curtesy, although reduced into possession during the coverture: for the twelfth and thirteenth sections are express, that they shall pass and go in possession, reversion, and remainder, with the lands, as part of the freehold; and the seventeenth section will not permit them to be taken in execution for hit debts, even during the marriage.
6. The rights of ordinary creditors, as was before observed, seem to be postponed to the widow’s right of dower, by the twenty-first section; and perhaps they may be narrowed, in the case of slaves annexed to lands, after the death of the tenant for life, for the time being, on the other hand, the authority given to executors and administrators to sell slaves, in case of a deficiency of the personal estate, may be regarded as an important provision in favor of creditors.
IV. About three years after the making of the preceding act, another act (1730, c. 8. Edition of 1733) entitled, an act to prevent losses to executors and administrators by the sale of negroes, goods, and chattels, etc. passed, reciting, that it frequently happens, either through the ignorance or partiality of appraisers, that estates of persons deceased have been valued at much less than the true worth; and yet by construction of the act of 1711, c. 3, directing the manner of granting probate and administrations, it is held that executors and administrators are only answerable and accountable for such appraised value, to the great injury of creditors and orphans; yet, on the other hand, it had sometimes happened that slaves, goods, and Chattels, being taken in execution, to satisfy the debts of a dead person, had been sold for less than the appraisement; and the executor or administrator must, in that Case, abide the loss: for prevention whereof, it is enacted, that the estates of deceased persons shall be appraised by order of the court, upon oath; and such appraisement may be given in evidence, in any action or suit, which may be brought against such executor or administrator, to prove the value of the estate; but shall not be binding, either upon the executor, administrator, creditor, or other person whatsoever, where it shall appear by any other legal proof, that the goods and chattels were really worth, or were bona fide sold far more, or less, than the appraisement. It is observable that although slaves are mentioned in the preamble, they are not mentioned in the enacting clause of this act, here recited.
Sections 10, and 11. To remove doubts concerning the act respecting slaves finishing the crops growing at the time of the owner’s death, declare, that where any person shall die between the first day of March and the twenty-fifth of December, the servants and slaves of which he died possessed, shall be continued and employed upon the several plantations held and occupied by the deceased person, until Christmas following; and the crops made shall be deemed assets after the charge of clothing and feeding the servants and slaves so employed therein being deducted.
This act is but of little importance, except as it shows the usage and practice which had been ordinarily observed by executors and administrators, and the frequent doubts and difficulties which occurred in the construction of the former acts.
The act of 1744, c. 6. (Sessions acts) directs the appointment of appraisers to value the slaves, and personal estate, by the court admitting any will to record.
V. We come now to the period of the general revisal of the laws made in the year 1748, at which session three very important acts, all connected with this subject, and in some measure framed upon similar principles, were passed by the general assembly; but, two of them were disallowed by the crown, though the third received the sanction of the royal assent. To this circumstance may be ascribed the difficulties which have existed since that period in the construction of the several acts concerning slaves.
The act of 1748, c. 3, (edition of 1752) after reciting that the before mentioned acts of 1705, c. 3, and 1727, c. 4, declaring slaves to be real estate, and the act of 1705, c. 7, for distribution of intestates’ estates, had been found inconvenient, repeals the two former entirely, and declares, that for the future, all slaves whatsoever, shall be held, deemed, and taken to be chattels personal.
The succeeding chapter, 1748, c. 3, for the distribution of intestates’ estates, enacts, “that after debts, funeral and other just expenses, first paid and allowed, the surplus of all and singular the goods, chattels, and personal estate, other than slaves of every person dying intestate shall be distributed, as therein after directed.”
Sect. 5, declares, that when any person dies intestate, his widow shall have one full and equal third part of all his slaves, and that she shall hold them and their increase during her natural life, and after her death, the said slaves and their increase, which shall be then living, shall be appraised, and shall descend to, and be vested in, the heir at law of the intestate, but he shall be answerable to the other children, or their legal representatives, for their proportionable value thereof: and the other remaining slaves of the intestate shall be immediately vested in his heir, but he shall be answerable in the same manner to the younger children for their proportions.
Sec. 11, gives to any widow, dissatisfied with the provision made for her by the will of her husband, the same right of renunciation, and the same right to demand and recover the third part of all the slaves whereof her husband died in possession, to hold for her natural life, as was given by the act of 1727, c. 4. Sec. 21, before-mentioned.
Sec. 13, enacts, that no distribution of the goods of any intestate shall be made till nine months after his death; and every person claiming any share or part therein, shall give bond with sufficient sureties, in the court where such distribution shall be made, that if any just debt owing by the intestate shall thereafter appear, be sued for, or recovered, he will refund to the administrator his proportionable part thereof, and of all costs and charges occasioned thereby, to enable the administrator to pay the same.
These two acts were refused the royal assent; but they may afford some clue to the exposition of the third (1748, c. 5. Edi, 1752, but numbered c. 3, in the edition of 1769) directing the manner of granting probate of wills, and administration of intestates’ estates. As this act may be considered as inseparably connected, in the opinion of the legislature, with that which declared slaves to be no longer real estate, but chattels personal, the general rules which it contains relative to chattels were probably intended to extend to slaves, in which the executors (by virtue of the declaration contained in the former act) would have acquired an interest, instead, perhaps, of a bare authority under the act of 1727, c. 4. Sec. 7, yet it is remarkable, that Sect. 29, of the act of 1748, is in the same words with that of 1727, Sec. 7, except, that it requires that the sale of a slave, made by an executor, or administrator, in case the personal estate should fall short, shall be made at public auction. So that slaves, even by that act, are regarded as special assets, not to be resorted to, until the other personal assets are exhausted, nor to be sold or disposed of by the executor or administrator, in any other manner, than at public auction. And upon this ground it has been held (though perhaps erroneously) that an executor under the act of 1727, had a bare authority only, and not an interest, in the slaves of the testator, and, as that authority was not absolute, but conditional, only, in case of a deficiency of personal assets, it must be strictly pursued; and, therefore, that the sale of a slave by an executor, by private contract, was voidable by the heir, according to the rule, caveat emptor.
For the act of 1727, having authorized the sale by the executor, without directing the mode of settling, left him at liberty to sell in any manner that he chose; but, when the act of 1748, added, that the sale should be made at public auction, we must presume the legislature meant to prevent in future the frauds and mischiefs, which probably had ensued upon private sales. And this directory part of the law must be regarded as a general notice to all purchasers, not to purchase by private contract.
As the decision in this case was acquiesced in, without an appeal, I have ventured to mention it in this place.
And here I will venture to mention another point, which arose collaterally in the same case, though no decision was made upon it. That is, whether an executor, even in case of a deficiency of the personal assets of his testator to pay his debts, was authorized to sell any of his slaves “to raise so much money as the personal estate fell short of the payment of his just debts,” without first making up the accounts of his executorship, and settling the same with the court. For, if the construction be just, that the executor had a bare authority only, and not any interest in the slaves under these acts, it would seem reasonable that the heir should have had legal notice of the necessity of resorting to the slaves to make up the deficiency of personal assets; and this legal notice, perhaps, could be given in no other mode, equally satisfactory, and reconcilable to the principles of law.
The refusal of the royal assent to the two former acts, imposes some restraint upon the construction of this act, to which it would not have been liable, if the act declaring slaves to be personal estate had passed. For the legislative will being one and entire, can only be collected from those acts which are perfect; the imperfect will of a part of the legislature, consequently, cannot be admitted to control the former perfect will of the whole. The act of 1727, therefore, remaining unrepealed, all cases within the purview of it, which are not provided for by this last act, but which would have been provided for if the act declaring slaves to be personal estate had received the royal assent, (without which it was no law, but merely the imperfect will of a part of the legislature,) must remain and receive the same construction, I apprehend, as if the general assembly had never passed the act.
The thirtieth and thirty-first sections, are nearly a repetition of the act of 1730, c. 8. s. 10 and 11, authorizing the slaves of any person deceased to be continued and employed upon the plantation, and declaring the crops made, after feeding and clothing all above ten years of age, assets in the hands of the executor, or administrator, and that the slaves shall then be delivered up to the party or parties having a legal right to demand them.
The two former of these acts being frustrated, and the latter containing little more than what had been before enacted, it seems not to have made any considerable change in slaves, as a distinct species of property, though such change was evidently intended by the colonial assembly.
VI. We are now arrived at the period of the revolution when the act of October, 1776, c. 26, declaring tenants of lands or slaves, in tail, to hold the same in fee simple, may be considered as repealing, in effect, those clauses in the act of 1727, c. 4, which authorized the annexing slaves to lands in fee tail, though, perhaps, it had no effect to prevent such annexation to lands, granted or bequeathed for life only, with remainder over in fee, or without any remainder over.
The principal effect of this act may be considered to relate to the husbands of tenants in tail, of lands to which slaves were annexed, who would immediately have an absolute estate in such slaves, independent of the former right of the wife, by virtue of the settlement thereof in her favor, instead of the possibility of being tenant by the curtesy only, of such slaves as a part of the freehold. And this seems to have been further confirmed by the act of May 1783, c. 27. Edi. 1785.
VII. The last period that remains to be noticed, is that of the revisal in the year 1792, when all slaves were once more declared by the legislature to be personal estate. Edi. 1794, c. 103. Sec. 43, yet they are still considered as a kind of special assets, it being provided by an act of the succeeding session, (Edi. 1794, c. 170,) that executors and administrators shall not sell the slaves of their testators or intestates, unless the other part of the personal estate; regard being had to the privilege of specific legacies, shall not be sufficient for paying the debts and expenses; and in that case, such part only of the slaves shall be sold, as shall be sufficient to satisfy the debts and expenses, and the residue of the slaves shall be reserved in kind for the legatees or distributees of their testators or intestates respectively.
The act concerning wills, etc. (Edi. 1794, c. 92. Sec. 29,) whilst it considers slaves as personal estates in other respects, gives to the widows of persons dying intestate, a life estate only in the third part of the surplus of the slaves of their husbands, after funeral debts and just expenses paid. And c. 103 s. 44 and 45, still imposes the forfeiture of all her dower in her husband’s estate, if any widow removes, or permits their removal, out of the commonwealth. It may be worthy of remark, however, that the twenty-fifth section of the act concerning wills, makes a distinction between the portion of the husband’s slaves, which are to be allotted to the widow of any person dying testate, who renounces all benefit under his will, and that which the succeeding section allows to the widows of persons dying intestate. For the words of the twenty-fifth section are, that upon such renunciation the widow shall be entitled to one third part of the slaves whereof her husband died possessed, which she shall hold during her life; and, moreover, shall be entitled to such share of his personal property, as if he had died intestate, to hold as her absolute property. Whereas the widows of persons, dying intestate, are only entitled to the same portion of the slaves for life, after payment of debts, as of the personal estate in absolute property. No judicial interpretation of these clauses has yet been made, as far as I have been informed.
And, by the act concerning executions, (Ibid. c. 157. s. 17 and 18,) no slave can be taken in execution for a debt under ten pounds, or two thousand pounds of tobacco, if other sufficient goods be shown. And the names of slaves taken in execution and sold, must be certified on the back of the execution. And the law is the same in regard to distresses made for any public tax, fine, or forfeiture, etc. Ibid. c. 80. J. 20.
The act of 1758, c. 1, declares, that all gifts of slaves must be made by will or deed, duly proved by two witnesses, or acknowledged by the donor and recorded: but the act of 1787, c. 22, confirmed by that of 1792, (Edi. 1794, c. 103, s. 48,) declares that this shall not extend to such gifts of slaves, as have at any time come into the donee’s possession, and remained with him, or some person claiming under him; but this shall not affect any bona fide purchaser for a valuable consideration, or creditor of the donor, until after three years’ possession under such gift.
Slaves may be emancipated by will or deed, but may nevertheless be taken in execution, to satisfy any debt contracted by the person emancipating them, before such emancipation is made. L. V. 1782, c. 21. Widows renouncing all benefit under their husbands’ wills, shall also be endowed of any slaves which he may have emancipated by his will. L. V. 1795, c. ll … Edi. 1794, c. 103, s. 36 and 37.
Having given this abstract of the several acts relating to slaves, which have been passed in Virginia, during a period of near a century, and having endeavored to interpret the same, from time to time, according to the best light which I have possessed on the subject, formerly, I shall now proceed to mention some decisions, which may serve to convict me of numberless errors in the interpretation which I had ventured to make.
1. And, first, as to the right of executors. In the case of Walden’s executors against Payne, 2 Wash. 7. Judge Lyons delivered the opinion of the court of appeals, as follows:
The principal point, made in this cause, on the part of the appellants is, that slaves are real estate, and can only be considered as assets, in the hands of the executors, sub modo.
Slaves from their nature are chattels. They were originally so, and the law made them real estate only in particular cases, such as descents, etc. But in most other instances, and especially in the payment of debts, they were declared to be personal estate. It is true the law has protected slaves from distress, or sale, where there is a sufficiency of other personal assets to pay debts or levies, and in this respect they differ from other chattels; but this qualified exemption does not change their nature,,or give to them the qualities of real property. Slaves, therefore, being clearly assets, in tho hands of an executor, and liable to the payment of debts, the executor had a right to demand security of the legatees before he delivered them up, and a court of equity would not have compelled him to part with the possession, without such security had been given, upon the principle of making him do equity who would have it…. An executor who does not oppose an order of court for a division, or disclose to the court the fact that there are debts subsisting against the estate, is considered as consenting to such order; which should be construed according to the reason and justice of the case, and that it was intended only to compel a division of the estate, which should remain, after satisfying all legal demands against it. If an executor having knowledge of such a demand chooses to deliver the slaves to the legatees without taking security to refund, it is at his peril; for being a trustee for creditors, he ought to take care to keep enough in his hands to satisfy them, and it is no answer to their demand against him to say that they may pursue the legatees. They are under no obligation to follow the estate, though they may do so, if they please.
In the case of Burnley vs. Lambert, 1 Wash, 308. The plaintiff who had married one of the legatees of John Jones, had received from the executors upon a division of the estate, certain slaves devised to her, which were afterwards taken in execution upon a judgment against the executors of Jones, and purchased by the defendant, at a coroner’s sale, made by virtue thereof. And from a judgment for the plaintiff in that case, the defendant appealed, and in that case Pendleton, president of the court of appeals, delivered the opinion of the court: that after the assent of the executor, the legal property is completely vested in the legatee, and cannot at law be divested by the creditors. The creditors, however, have a double remedy, first, against the executors at law; in which case the executors have their remedy, in equity, against the legatees to compel them to refund; or, secondly, the creditors may in equity pursue the estate in the hands of the legatees and in either case, all the legatees must be made parties, that the charge may not fall upon one, but may be equally borne by the whole. And the seizure by the coroner was accordingly adjudged to be unlawful, and the judgment of the district court was affirmed.
2. As to the rights of the husband to the slaves of his wife.
In the case of Sneed against Drummond, in the court of appeals, November, 1786, the presiding judge2 delivered the opinion of the court to be, that slaves, in all cases where the right of the husband to the slaves of his wife was concerned, since the passing of the act of 1727, were to be considered as personal estate. That case has been lately reported in the second, volume of Mr. Call’s Reports, 491.
The case of Dade, vs. Alexander, is the next in order of time; and in that case it was decided, that if a feme sole be entitled to slaves in remainder or reversion, and afterwards marries, and dies before the determination of the particular estate, the right vests in the husband. 1 Wash. 30.
In the case of Wallace against Talliaferro, 2 Call, 490. The court decided, that where a man devised slaves to his daughter, then married, and made the husband one of his executors, who, qualified as such, and died before any distribution was made, and without doing any act, testifying his election to hold the slaves, in right of his wife, and not as executor, the right of the slaves survived to the wife (they not having been reduced into his possession as husband, in the same manner as if they had been chattels.
These cases, I presume, relate to slaves not annexed to lands, and entailed therewith.
3. Thirdly: as to devises of slaves.
In the case of Dade against Alexander, beforementioned. 1. Wash. 30. The court of appeals decided, that money directed by will to be laid out in the purchase of slaves, and to be annexed to lands, devised in tail by the same will, was to be considered as slaves: and the slaves purchased therewith will pass with the land in tail.
Query: If in this case the husband would not have been tenant by the curtesy, only, before the act declaring tenants in tail of lands, and slaves to hold the same in fee simple, instead of having the absolute right thereto, as at present?
In the case of Shelton against Shelton, 1 Wash. 60, the court said that slaves purchased after the making of a will, would pass by a devise of all his slaves, in the same manner as chattels.
And in the case of Cole against Claiborne, it was decided, that the reversion in the dower slaves of the widow, will pass under the words of a general devise of all the rest and residue of the testator’s negroes and personal estate. 1 Wash. 262.
In the case of Dunn and wife, against Bray, 1 Call. 343, the court held that a devise of a slave to the testator’s son, and his heirs forever, but if he die without issue, then to another son; that this limitation was good, and the contingency not too remote.
And in Pleasants against Pleasants, where the testator in the year 1771, devised that his slaves should be free when they arrive at the age of thirty years, and the laws of the land will admit them to be free, the court held that those who were living when the act of 1782, authorizing emancipations of slaves passed, and were of the age of thirty years, or had since attained that age, were entitled to the benefit of the devise, if still held by the testator’s legatees, or in their families, without change, through the intervention of creditors, or purchasers, the contingency having actually happened.
4. As to gifts of slaves.
In the case of Turner against Turner, 1 Wash. 139, it was decided that a parol gift of slaves (though accompanied by actual delivery of possession, as I understand the case to have been) made antecedent to the act of 1787, c. 22, was void, under the act of 1758, c. 1, to prevent fraudulent gifts of slaves; and that the act of 1787, was prospective, only, and not retrospective.
From the preceding abstract of the various laws relating to slaves as property, it is difficult to assign to them any determinate place, either under the head of real, or personal property. The exceptions contained in the acts declaring them to be real estate, sufficiently demonstrate that the legislature were aware of the difficulty of imparting to them all the properties of real estate: and the provisions still retained in the act which declares them to be, now, personal estate, equally show the aversion of the legislature to restore to them, completely, all the properties and incidents of personal chattels. Thus we see, that when declared to be real estate, they were subject to be taken in execution for debt, even when annexed to lands, and entailed; that they were not liable to escheat; might be transferred without deed, and be recovered by action personal; that the heir at law was made accountable to the younger children, for their proportions of the value; that the estate of a feme covert therein vested, absolutely, in the husband: that an infant of eighteen years might dispose of them by his will; and that no remainder thereof could be created, other than of a chattel personal, by the rules of the common law.
Now, when they are declared to be personal estate; the widow’s right thereto is limited for her life, only, instead of being absolute, as in the case of chattels; to remove them out of the state amounts to a forfeiture of her whole dower in lands, as well as slaves; the executor cannot sell them, even now, until there is an actual deficiency of the personal estate; and a gift of them without deed unless accompanied with the possession, is void; and they cannot be taken in execution or distrained if other sufficient property can be had. Some of these provisions do not seem to be founded in reciprocal justice. A man marries a woman possessed of slaves in her own right; they become his, absolutely, immediately upon the marriage, and the next moment may be taken in execution to satisfy his debts, previously contracted: if he dies in the lifetime of his wife, she shall have the use, only for her life, of one third part of her own slaves, if he die not indebted, but she may be deprived of the whole by a creditor, whose debt was perhaps desperate, until her marriage with the debtor. Nor must she presume to remove them out of the state, under penalty of forfeiting them, and her dower, if she have any. It seems difficult to reconcile these provisions to the principles of mutual and reciprocal justice.