The Journal of Negro History, Volume 3, 1918Various
History
The Journal of Negro History, Volume 3, 1918
Various
African Americans -- Periodicals
Such a law coupled with the legal precedents of Virginia served to
intensify the mixed property conception of the slave. The confusion,
however, was purely legal, for slaves were held in all other respects
as personalty; but in cases of inheritance and the probation of wills
the Kentucky Court of Appeals was often called upon to define clearly
the legal status of the Negro in bondage. The first important decision
was handed down in 1824 in the case of Chinn and wife _vs._ Respass,
in which it was pointed out that while slaves were by law made real
estate for the purpose of descent and dower, yet they had in law many
of the attributes of personal estate. They would pass by a nuncupative
will, and lands would not; they could be limited, in a grant or devise
no otherwise than personal chattels; and personal actions might be
brought to recover the possession of them. Furthermore "they were in
their nature personal estate, being moveable property, and as such
might attend the person of the proprietor wherever he went; and in
practice they were so considered by the people in general."[299]
Conversely, the court was often called upon to interpret the phrase
"personal estate" in wills and contracts, where it appeared without
any other restrictive expression or provision, and it consistently
held that the term should be construed as embracing slaves.[300]
Gradually the personal property conception began to secure even legal
precedence over that of real estate when the two interpretations came
into close conflict. This was accomplished by placing more stress on
the proviso in the original slave code, which placed slaves in the
hands of the administrator as assets for the payment of debts. This
led to increasing power for the executor who could even defeat the
title of the heirs, though the property may have been specifically
devised. Hence it was not surprising that in the Revised Statutes of
1852 it was provided that slaves should thereafter be deemed and held
as personal estate. Coming after all doubt of the personalty of slaves
had been removed by the decisions of the highest tribunal in the
State, this law meant little more than the repeal of the old statute
making slaves real estate.
The wonder is that Kentucky should have chosen to hold to an
antiquated legal conception for fifty years after Virginia had proved
its fallacy by her experience in the eighteenth century. While it did
little harm, it had few advantages. The existence of the theory was
chiefly noticeable in the frequent legal battles over technicalities
in the settlement of estates. In the popular mind slaves were always
considered personal property, and the spirit of the slave code itself
embodied that conception as regarded all things save the question of
inheritance.
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