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The Legal Status of the Slave 

Bailey v. Poindexter’s Executor

(1858) 14 Gratt. 132


This was a bill filed in April 1854 in the Circuit Court of New Kent County, by Richmond Lacy, executor of the estate of John Poindexter, to obtain a construction of the will of Poindexter, and directions for the guidance of the executor. The heirs of Poindexter were the defendants.

The will was made in November 1835 and admitted to probate in December 1835. By the first clause of the will the testator gives to his nephew Jack Poindexter the testator’s interest in the tract of land on which Jack then lived, and a tract called Cedar Lane at the death of the testator’s wife.

By the second clause testator lent his wife during her natural life of widowhood, his plantation at Cedar Lane, and all the remainder of his property after debts and legacies are paid.

By the third clause the testator gave to his slaves the option of being emancipated by his executor, upon the death of his wife, or remaining as slaves in which case they were to be sold at public auction. The clause reads:

The negroes loaned my wife, at her death I wish to have their choice of being emancipated or sold publicly. If they prefer being emancipated, it is my wish that they be hired out until a sufficient sum is raised to defray their expenses to a land where they can enjoy their freedom. If they prefer being sold and remaining here in slavery, it is my wish they be sold publicly, and the money arising be equally divided among my heirs.


If any of the servants loaned my wife should be refractory or hard to manage, I wish my executor to dispose of such at public sale, and the money arising therefrom to be used for the benefit of my wife.”


The bill stated that the wife was now dead and that the executor had possession of the slaves.

The cause was heard by the court in 1855 and argued at great length. The court held that that negroes were by the terms of the will absolutely free at the death of the wife, and that it was not necessary to put to said slaves to their election. And that the issue of the females born after the testator’s death were likewise free. From this decree the defendant heirs appealed to the Virginia Supreme Court which decided the case against the negroes in 1858, by a three to two spilt decision.

Judge Daniel wrote the majority opinion:

“There is no doubt that the testator wished his slaves to be emancipated at the death of his wife, at their option. It is true we may conjecture that it was probably the expectation of the testator that many, perhaps most of the slaves, would elect to be emancipated; yet when we see that no provision is made in the will for the support of any of them in the strange land to which, in case of their emancipation, they were to be transported, we may as fairly supposed that it was in the contemplation of the testator that there would be some of them, especially of the aged and inform, who would prefer to remain in their present condition.”

Note: Here we see the reality of antebellum Virginia law that held the owner of slaves responsible for their health and welfare when old or infirm. The owner could not simply use up the youth of the slaves and then dump by the roadside to die in the ditch. Nor did the law of adjacent slave states allow an owner to sell off his slaves in their states. The problem of funding their support when emancipated is seen in the contrast between Washington’s will and his adopted son’s, G.W.P. Custis.


“In this aspect of the case, what warrant have we for declaring that an election by the slaves to be emancipated is not at all essential to their receiving their freedom under the will of the testator? It is conceded that the effect of such a decision would be to work an absolute emancipation of all the slaves, in spite of a choice to the contrary by any of all of them. We cannot adopt this course, without running counter to the plain and express directions of the testator. It is not competent for us, supposing the condition (of an option in the slave) to be illegal or impossible, to pronounce, as the will of the testator, what we may conjecture he would have directed in respect to his slaves, had he foreseen the difficulties which now present themselves.”

Note: “the difficulties” is that there lies at the core of the abstract concept of “chattel slavery” the legal presumption that Africans, as slaves, have no legal capacity to consent, no capacity to contract, to own property, to make any conscious decision which invokes the power of the law to enforce it. As the heirs’ lawyer put it in argument, “The slave has no civil rights and no legal capacity whatsoever. If the slave has recognized civil rights, the state is bound to protect those rights and the duty to do this is owed to the slave. If the slave has civil rights, he must have civil remedies, which attach to him as a slave.”


By Article IV, sections 22-23, the slave is expressly recognized as property and not at all as persons having civil rights in any respect whatsoever. Looking to the statutes of Virginia, so far as the slaves’ “civil rights” are concerned, slaves are always spoken as and treated as mere property. Looking to these statutes, the slave is absolutely without civil capacity, he is absolute a civil non-entity. The point being, here, that the slaves of the testator do not possess the legal capacity to determine, by their own decision, whether they shall be free or remain slave.


We are thus led necessarily to the inquiry, whether the condition precedent in this case (the slave to exercise the option) is legal and possible, or otherwise.

Is the condition one which the slaves have the legal capacity to perform?

To answer the question, it is necessary to consider the true condition of the class of persons to which they belong.

“In the case of Emerson v. Howland, which was a suit brought by a master to recover wages for a mariner slave who by his own consent had been discharged from service, Judge Story, in sustaining the owner’s action, said: `The slave could not consent to be discharged. The contract was entered into by the owner, in Virginia. In Virginia, the owner has the most complete and perfect property in the slave. The slave may be sold or devised in the same manner as other inheritable estate. He has no civil rights. He is incapable of making or discharging a contract.’”

“Judge Tucker says that in all civilized nations all free persons, whether citizens or aliens, males or females, infants or adults, white or black, of sound mind, or idiots and lunatics, have their respective social rights according to the customs, laws and usages of the country. `Slaves only,’ he continues, ‘where slavery is tolerated by the laws, are excluded from social rights. Society deprives them of personal liberty, and abolishes their right to property; and in some countries even annihilates all their natural rights.’”

Note: “Natural rights” being such things as life, liberty and the right of self-defense.


The general principles declared by these authorities have been fully recognized by this court. But, it is argued that in the case of Elder v. Elder the precise question at issue here has been decided. In Elder, it is true, the features of the will disclosed that the testator intended to leave the manumission of his slaves to their election. But the issue of whether the testator could legally do this was not raised by the parties to the appeal. It was an issue not decided by the court and therefore is not res judicata.

When we assent to the general proposition, as I think we must, that our slaves have no civil or social rights; that they have no legal capacity to make, discharge or assent to contracts; that though a master enter into the form of an agreement with his slave to manumit him, and the slave proceed fully to perform all required of him in the agreement, he is without remedy in case the master should refuse to comply with his part of the agreement; and that a slave cannot take anything under a will or decree except his freedom; we are led necessarily to the conclusion that nothing short of the exhibition of a positive enactment of the legislature, or of legal decisions having equal force, can demonstrate the capacity of the slave to exercise an election in respect to his manumission.”

“Any testamentary effort of a master to clothe his slave with such a power, is an effort to accomplish a legal impossibility.”

“No man can create a new species of property unknown to the law. No man is allowed to introduce anomalies into the ranks under which the population of the state is ranged and classified by its constitution and laws. The Circuit Court decree is reversed.

Judges Allen and Lee joined Judge Daniel

Judge Moncure, joined by Judge Samuel, dissented

“I think the bequest contained in the will of John Poindexter is a valid bequest and operated to emancipate the slaves upon a condition precedent.


Whether a master should have power to emancipate his slaves was answered by the legislature by the act of 1782, giving the right to emancipate by will or by deed. That act has ever since remained essentially unchanged, modified only by the act of 1806, requiring slaves thereafter emancipated to leave the state.

That a master can emancipate his slaves upon a condition precedent, if there be nothing unlawful in the condition, is a proposition that will not be denied; as, for instance, if his wife die without issue living at her death then the slaves are free. A master may emancipate his slaves against their consent. Why, then, may he not make such consent the condition of emancipation? There seems to be nothing in the policy of the law that forbids it.

It may be said that the act of emancipation is not executed, but is executor, but both are, in fact, executed acts. Both of them, so to speak, convey an estate or interest─a right to freedom; the one is absolute, the other a conditional right.

If the slaves were wholly incapable of making a discreet choice, and could merely guess what was best for them, there would be nothing in that incapacity which would make the condition unlawful. But slaves have some capacity to choose, though it may be very week and imperfect. They are responsible for their own criminal acts. The moment they become free they are legally capable, without any increase of intelligence, of making contracts, buying and selling property, and doing other acts which require the exercise of mental facilities. And as the law now is, they may choose to return to slavery. Slaves have certainly feelings and wishes which the master may be willing to consult in regard to their emancipation. To do so, is not to create that middle state between slavery and freedom, which is unlawful.

It is argued that slaves have no civil rights or legal capacity, and cannot therefore elect between freedom and slavery, though authorized to do so by their master. The premises of this argument are certainly true, at least as a general rule, but the conclusion is, I think, unsound. The fallacy of the argument consists in supposing that to make such an election would be to exercise a civil right or capacity.

The only question is, whether such condition may be the willingness of the slave to receive his freedom. Why may it not? Slaves emancipated absolutely, still have an election between freedom and slavery. They may become slaves again under the provisions in the Code (p 466 & 746) and the act of February 18, 1856.

It is said that a slave emancipated by an election given him by his master, would become free by his own act, and not by the act of the master. But this is not so. A slave can become free only by the act of his master; and the act must be done in a certain prescribed mode. When the act has been done by that mode, it may be made to depend on a willingness of the slave be as well as upon any other condition. Either way, the agency by which the condition is performed, is constituted by the master; and such performance is thus, in effect, his own act.There is nothing in the relation of master and slave, nor in the condition of slavery, which can prevent the master from adopting the agency of his slave for such a purpose.

But I regard the question as res adjudicata. Elder v. Elder decided it. But it is claimed the question was not decided. The argument of the case in this court is not reported, and we can only infer what it was from the opinion of the judges. It is reasonable to infer that this question was among the points argued, as it was decided among other things that such of the slaves as preferred to go to Liberia were effectually emancipated and that it was unnecessary to perfect their title by election.

If public opinion has undergone any change as to the policy of authorizing master to emancipate their slaves, such change must develop itself in the action of the legislature, and not of the courts whose business is to expound the law as it is written and settled.

Joe Ryan