Slavery may have been recognized by the common law at one time.
Even if it had not been, the common law traditionally adopted itself to the needs of society.
A master had the right to manumit slaves, barring statutory limitations.
Alabama prohibited in-state manumission.
The Alabama Constitution and relevant statutes did not prevent a master or his representative from taking slaves to a free state.
Facts of the Case
Henry S. Atwood executed his will on August 3, 1843, in Wilcox County, Alabama. When he died in September 1851, Atwood left an estate valued at $300,000 to $400,000. The will was admitted to probate on October 14, 1851, the executors he named failed to qualify, and the court appointed Calvin C. Sellers (who later died) and Franklin R. Beck as administrators. The administrators obtained an order from Wilcox County Probate Court for sale of the 800-bale cotton crop on hand, perishable property, and 175 slaves. This was done, Atwood’s debts were paid, and $100,000 or more remained on hand, not including land warrants of great value.
Atwood’s will contained provisions to benefit seven mulatto children. These included Alexander, age fifteen, and his sister, Ann, age twelve, who lived in Adams County, Ohio, near Aberdeen, in the care of Lemuel Brown. Alexander and Ann both received $8000. They were the children of a slave woman named Candis, who had three mulatto children living on Atwood’s plantation, "Chilachi," near Prairie Bluff: Cebille, age nine, Julius, age eight, and John, age five. Each of these would also receive $8000, as well as being placed in trust with his executor for transportation to a free state. Likewise, the mulatto children of a slave named Mary, who lived at "Chilachi," would receive $8000 and be transported to a free state. They were William, age six, and Daniel, age less than one year.
He made similar provisions for Candis, age thirty-six, the mother of five of the mulatto children previously mentioned, and her two black children, Jesse eighteen and Lucy fifteen. Atwood also freed Seaborn, age twenty-seven, and four small children he had fathered with a woman named Milly: Lucy, Betsy, Nancy, and Wyatt. Candis, Seaborn, and Mary would each receive $2000 and the three, along with Seaborn’s children, would be transported to a free state through the agency of Atwood’s executor.
Atwood’s heirs, who included his sister, Sally Northrop, a resident of New York, wanted the slaves to remain in bondage and be distributed among them, along with the money left in the slaves’ behalf. If the court declared the will valid, the heirs requested that they be made guardians of the slaves. As residents of a free state, Sally Northrop and her husband believed they were in a better position to carry out Atwood’s wishes than was Beck. Further, they had ties of kinship with the deceased which made them better-qualified to implement his intentions. Interestingly enough, Atwood’s will left only $5000 to Sally and stipulated that the money be outside her husband’s control. She was also to receive the residue of his estate, if any remained.
The Chancery Court of Wilcox County, under Judge J.W. Lesesne, voided the trusts created for the slaves who remained in Alabama; declared that they could not be emancipated in the manner provided by Atwood’s will; and validated the legacies to the two mulatto children who resided in a free state. Both parties appealed, the Northrops because the court upheld the freedom and the bequests to the two children in Ohio, and Beck because the court declared the trustes for the slaves who remained in Alabama void and ruled against their emancipation as provided by Atwood.
The Heirs’ Argument
Elmore and Yancy and A.P. Bagby presented the heirs’ argument to the Alabama Supreme Court. They contended that all trusts were subject to social norms. An owner "may burn up his property," or "sell it and case the proceeds into the sea," but a will directing his executor to do these things would not be held valid. Atwood might have sold his estate, taken the money to a free state, and "there established a press for the printing and distribution…of incendiary publications to incite [slaves] to insurrection," but the court would not have upheld a will directing his executor to do so.
Masters had no common law right to emancipate slaves because the common law had not recognized slavery. Feudal villeins were "free to all the world but their lord," who had a right to their services but did not own them. American slaves bore no resemblance to feudal villeins. They more resembled Roman slaves, who could own no property.
If the trusts in behalf of the slaves were valid, they derived their validity from a will executed in Alabama, by a person who lived in the state, and concerned property located in the state and subject to its laws. If slaves could not be freed directly by the master under Alabama law, why should the law allow them to be freed by a trust such as the one created by Atwood’s will? To sustain such a trust, the court would have to conclude that the state’s policy favored manumission, or that the state had no policy on that issue, provided freed slaves did not remain in Alabama. This matter had been settled in the Trotter case.
The Mississippi decision in Ross v. Vertner (5 Howard 305) was not in conflict with Trotter because Mississippi policy favored emancipation, provided the freed slaves left the state. Likewise, the South Carolina case of Frazier v. Frazier could not be interpreted as undermining Trotter because Judge Harper had not sat for the decision and did not appear to condone it. Judge O’Neal, who delivered the opinion, was known "to entertain peculiar opinions on this subject." Besides, both Mississippi and South Carolina had subsequently passed laws in conformity with the Alabama principle established in Trotter.
The two children in Ohio had no more legal capacity to accept the terms of the will than did those who remained in Alabama. They had never been emancipated and their residence in a free state did not make them free. They would have been Trotter’s slaves if returned to Alabama prior to his death. Furthermore, he never abandoned his control over them, but retained Brown as an agent.
Finally, the case at hand was not substantially different from Trotter. The only difference was that Trotter attempted to free his slaves directly and Atwood created a trust for that purpose.
Beck made his own argument before the court. He contended that owners had absolute control over their property. Because of this, slave owners could take slaves to free states, even if emancipation was their avowed purpose. Furthermore, this power could be transmitted to an executor. The question was not emancipation, but removal. The slaves removed would be emancipated "by the silent operation" of the laws in a free state. The state of Alabama did not prohibit emancipation, but qualified it to prevent the growth of a free black population. Besides, the intent of the deceased, as expressed through his will, had been to emancipate the slaves. Finally, the two children in Ohio were already free because slavery existed only by virtue of the laws of the state where it was sanctioned. Slaves who escaped to free states were free and masters who took slaves to free states could neither restrain them while there nor force them to return to a slave state.
The Court’s Decision
Chief Justice William P. Chilton wrote the Alabama Supreme Court’s decision in this case. At the outset he noted that the primary question at issue was the validity of the trust created by Atwood’s will in behalf of the slaves who remained in Alabama and the mulatto children living in Ohio. The objections to the trust were four: (1) The bequests violated the laws of Alabama; (2) they were opposed to the "settled policy" of the state; (3) they were void because the legacies did not vest upon Atwood’s death or at any fixed time; and (4) the court could not execute the trust and executors holding a trust which could not be executed were considered to be holding it for the next-of-kin.
It had been argued that the common law had not recognized slavery and hence did not provide a vehicle for the emancipation of slaves. Chilton was inclined "to think there was a time in England, when negroes, or heathens and infidels, were regarding as subjects of property." In support of his case he cited the Treaty of Assiento (1713) between England and Spain, which gave the South Sea Company the privilege of furnishing slaves to Spanish colonies in America. Statutes passed during the reign of George II had recognized slavery in the American colonies, as well as the African slave trade. Chilton also cited English case law. Finally, he claimed that slavery and the slave trade had continued to be recognized until the case of James Somersett in 1771-72.
Even if slavery had not been recognized by the common law, the latter’s "genius and expansive nature" customarily adopted itself to social change. Steam navigation and transportation "were unknown to our common law ancestors," but no one contended that the common law should not be adopted to them. On the contrary, the principles of the common law provided a daily "in reference to new inventions and improvements." Under the common law, a lord had to power to liberate a villein from bondage. Chilton also noted, for the benefit of those who said American slaves were governed by Roman law, that masters enjoyed an unqualified right to liberate slaves under that system.
Chilton also cited the United States Supreme Court’s decision in McCutchin v. Marshall (8 Pet 220), which said that any limitation on a master’s right to renounce ownership in slave property should be stated in "the most explicit prohibition." Thus, he concluded, that the right of emancipation existed and could be deduced from the master’s unqualified ownership, "from analogous rules applicable to slavery as it has obtained in every civilized society," and numerous court decisions in the United States.
What about the laws of Alabama? In 1805 the Legislative Council of the Mississippi Territory passed an act requiring approval of the General Assembly and meritorious service to the master or territory for the liberation of slaves. The act said nothing regarding their removal from the territory, but required a bond for security against their becoming public charges. The legislature received many petitions under this act, which were granted without inserting a requirement that the slaves leave the territory. Following the adoption of the 1819 Constitution, however, this provision generally was added. The Constitution gave the legislature the power to pass law permitting owners to emancipate slaves, which in 1834 was delegated to the county courts. The 1834 statute required removal from the state.
Trotter v. Blocker (1838) interpreted the Constitution and the 1834 statute as prohibiting emancipation, except in the manner provided. In that case, the court properly held the emancipation of slaves void because it was to take place inside the state. The difference between that case and the current one was that Atwood created a trust which would not vest in the slaves until after they left Alabama. The ultimate question, then, was whether or not an executor could execute such a request. If Atwood’s purpose had been to circumvent the law, he would have taken the slaves to a free state prior to his death, for his right to do so would not have been questioned. The executor was the owner’s legal agent and had no less right to do this than the owner would have had.
In Alston v. Coleman (7 Alabama 795) the Alabama Supreme Court had very nearly followed the precedent of the Virginia decision in Pleasants v. Pleasants, which allowed for the emancipation of slaves at a future date when the laws of the state allowed it. But in Alston the will did not defer the bequest of freedom to a future time. In the absence of a statement to that effect, the court decided that the will had to be interpreted with respect to the existing laws. Carroll v. Brumby (13 Alabama 102) merely decided that slaves lacked the capacity to choose between freedom and bondage. None of the Alabama Supreme Court’s previous decisions matched the situation in the current case and neither the Constitution nor the statutes said anything to prevent an executor from doing what Atwood had directed.
Atwood’s heirs argued that the bequests were "opposed to the settled policy" of the state, but Alabama policy could only be ascertained from the laws passed by the legislature or set forth in the Constitution. If the court looked to "the conflicting views of politicians" for state policy, they would usurp the power of the legislature. It was the legislature’s role to determine the best ratio between the slave and white population, the number of slaves that contributed to the security of the institution and the development of the state’s agricultural resources, or the proper size of the free black population. It was reasonable to presume that, had the state opposed the transportation of slaves to free states for purposes of emancipation, laws would have been passed explicitly prohibiting it.
Chilton next reviewed the relevant case law. He believed that the 1799 decision of the Virginia Court of Appeals in Pleasants v. Pleasants (2 Call 319) supported his argument. So did the Tennessee decision in Fisher’s Negroes v. Dabbs (6 Yerg 119); the South Carolina decision in Frazier v. Frazier (2 Hill 304); the Mississippi decisions Ross v. Vertner (5 How 305), Wade v. American Colonization Society (7 Smedes 663), and Leech v. Cooley (6 Smedes 93); and the Georgia decision in Vance v. Crawford (4 Georgia 445). If any point had been settled by opinions in neighboring states, it was the proposition that a master could vest title in slaves to a trustee for purposes of removing them from Alabama for purposes of emancipation, unless prevented by a positive statute. The question of whether or not the court could compell the execution of such a trust if the executor refused to do so was irrelevant in Atwood’s case.
Finally, it followed from the above reasoning that the bequests to Alexandar and Ann, the two mulatto children living in Ohio, were valid.