Alabama’s 1819 Constitution empowered the legislature "to pass laws to permit the owners of slaves to emancipate them." Under this provision, masters routinely petitioned the legislature to liberate individual slaves, normally for long, faithful, and meritorious service. By 1834 the demand had become so great that the legislature delegated this authority to the county courts, further providing that slaves so emancipated leave the state within one year, their freedom to take effect upon departure. Up to this point, the legislature had not addressed the master’s right to emancipate a slaves by last will and other legal instruments, a question which fell to the Alabama Supreme Court.1

Courts in other southern jurisdictions had addressed this matter long before Alabama became a state. Generally, it was an issue of public interest versus private property. Southern states regulated their black populations in various ways, but in doing so curtailed the master’s absolute dominion over the slave. Jurists also raised the question of whether or not manumission by last will was a bequest or a trust, a gift to one who was himself property as opposed to a responsibility delegated to the executor of an estate. If the former, did slaves have a legal right to accept such gifts? If the latter, what could be done if the executor refused to execute the will? Manumission by last will raised so many legal problems that some states eventually prohibited the practice.2

The Alabama Supreme Court spoke to these issues in 1838, when Chief Justice Henry W. Collier ruled on William Butler’s will. Under this instrument, Butler freed all his slaves and provided funds for their transportation outside Alabama if they could not remain in the state as free persons. Following Butler's death, Richard Trotter, administrator of the estate, sought to execute the will, but the next-of-kin resisted. In the spring of 1837, Trotter sued the next-of-kin in Lawrence County Circuit Court, which directed him to apply to the County Court under the 1834 statute for a decree emancipating the slaves. Both parties appealed this decision to the Alabama Supreme Court. The next-of-kin contended that the Circuit Court erred in directing Trotter to apply for a decree of emancipation and Trotter argued that the slaves should have been liberated under the will.

In his argument before the Alabama Supreme Court, Trotter contended that, in the absence of statutory provisions, the analogies and principles of Roman law governed American slaves. Under that ancient system, masters possessed absolute control over their slaves, including the unlimited power of emancipation. That also had been the case in colonial Virginia until 1696, after which time the law required that freed slaves leave the colony within six months. With that restriction, Virginia masters could free slaves themselves until 1723, when the state further stipulated that slaves could be liberated only for meritorious service as determined by the governor and council. In addition, Trotter argued that limitations on a master's right to dispose of slave property should be explicit, not implied.

In his opinion, Chief Justice Collier also employed the analogy of Roman slaves, but with different results. He reasoned that American slaves resembled Roman slaves, not feudal villeins, in their capacity to own property. Feudal villeins had limited property rights, but Roman slaves had none. Consequently, American slaves lacked the legal capacity to accept a gift of their own freedom. Furthermore, the imposition of this restraint upon a slave owner's power was wise policy. Emancipation by "the mere volition of the master" could have consequences "disastrous to the quiet of the country" as slaves too old or too young to support themselves became wards of the state.

According to Collier, the framers of the 1819 Constitution understood the necessity of imposing restraints upon emancipation when they gave the legislature this power. That act restrained the master’s common law rights as surely as if it had contained an explicit prohibition. If that had not been the framers’ intention, why would they have delegated this power to the legislature? Furthermore, prior to 1834 masters had petitioned the legislature to free slaves without any instances of manumission by last will. Even if an owner could create a trust for the emancipation of slaves, the power to execute a will did not convey ownership of property. Furthermore, an executor might emancipate slaves with less regard for the consequences than the owner.3

The Alabama Supreme Court followed the precedent of Trotter for fourteen years, most notably in Carroll v. Brumby (1848). In this instance, the will of John F. Wallis had given several slaves the option of freedom in Africa or servitude under his daughter. The estate lacked resources enough to pay the Wallis legatees in full, so some argued that the slaves should be hired out to earn the balance. The Alabama Supreme Court ruled that the slaves could not be hired out because Wallis had provided only two options: freedom or servitude. The former was illegal under Trotter, so the latter automatically took effect. It would have been the same had the first option been legal, but rejected by the slaves.4

In 1852 the Alabama Supreme Court began to issue a series of decisions that undermined Trotter v. Blocker. The first arose out of Henry S. Atwood’s will, executed on August 3, 1843, in Wilcox County. 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. Eventually, Franklin R. Beck, administrator of the estate, obtained an order from Wilcox County Probate Court for sale of the 800-bale cotton crop on hand, perishable property, and one hundred seventy-five slaves. This was done, Atwood’s debts paid in full, 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 two who lived in Adams County, Ohio, each of whom would receive $8,000. The two Ohio residents were the children of Candis, who had three mulatto children living with her on Atwood’s plantation, Chilachi, near Prairie Bluff. Each of these three also would receive $8,000, as well as being placed in trust with his executor for transportation to a free state. Likewise, the mulatto children of Mary, who lived at Chilachi, would receive $8,000 and transportation to a free state. Candis, Mary, and another slave named Seaborn would receive $2,000 each and transportation 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 for distribution among themselves, 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, Northrop and her husband believed they could better implement Atwood’s wishes. Furthermore, they had ties of kinship with the deceased, which made them better qualified to carry out his intentions. Interestingly enough, Atwood’s will left only $5,000 to Sally and stipulated that the money remain outside of her husband’s control.

The Chancery Court of Wilcox County 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 upheld the bequests to the two mulatto children who resided in a free state. Both parties appealed, the Northrops because the court upheld the bequests to the children in Ohio and Beck because the court declared the trusts for the slaves who remained in Alabama void and ruled against their emancipation.

Before the Alabama Supreme Court, Atwood’s heirs contended that all trusts were subject to social norms. An owner might either "burn up his property" or "sell it and cast the proceeds into the sea," but a will directing his executor to do these things would not be valid. Atwood could 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.

The heirs further argued that, if the trusts were legal, 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 under Alabama law, why should the law allow them to be freed indirectly through a trust? To sustain the trust, the court would have to conclude either that the state’s policy favored manumission or was indifferent to the issue, provided freed slaves did not remain in Alabama. This matter had been settled in Trotter v. Blocker. So had the question of whether or not slaves had the legal capacity to accept gifts of freedom.

Finally, the heirs argued that the two children living 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 under Alabama law and their residence in a free state did not make them free. They would have reverted to Atwood’s possession if returned to Alabama prior to his death.

Beck argued that masters had absolute control over slave property. Because of this, they 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 states that sanctioned it. 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.

Chief Justice William P. Chilton delivered the Alabama Supreme Court’s decision in Atwood’s Heirs v. Beck. Contrary to Atwood’s heirs, Chilton believed that there had been a time in England "when Negroes, or heathens and infidels, were regarded as subjects of property." In support of his case, he cited a 1713 treaty 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 noted that slavery and the slave trade had continued to be recognized in England until the late eighteenth century.

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," Chilton wrote, but no one contended that the common law should not be applied to them. On the contrary, the principles of the common law provided a daily guide "in reference to new inventions and improvements." Under it, a feudal lord had the power to liberate a villein from bondage. Under Roman law masters also enjoyed an unqualified right to liberate their slaves.

Trotter v. Blocker had interrupted the 1819 Constitution and the 1834 statute as prohibiting emancipation, except in the manner provided. Chilton conceded that in Trotter the court properly held the emancipation of slaves void because it was to take place inside the state. The difference between Trotter and Atwood was that the latter created a trust, which would not vest in the slaves until they left the state. The ultimate question, then, was whether or not an executor could implement 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 have been unquestionable. The executor was the owner’s legal agent and had no less right to do this than the owner would have had.

Atwood’s heirs argued that the bequests were "opposed to the settled policy" of the state, but Chilton responded that Alabama policy could be ascertained only from the laws passed by the legislature or set forth in the 1819 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 the white population, the number of slaves that contributed to the security of the institution, and the proper size of the free black population. It was reasonable to presume that had the state opposed the exportation of slaves for the purpose of emancipation, laws would have been passed explicitly prohibiting the practice.5

Two years later, Chief Justice Chilton expanded the scope of Atwood in Prater’s Administrator v. Darby, which grew out of two legal agreements executed on January 14, 1826, between Martha Prater and Richard Darby of Lauderdale County. Under the first, Prater sold a slave named Rachel, age twenty-five, and her three children to Darby for $525. In the second, Darby bound himself to pay Prater $1,050 if he did not free Rachel and her children after having received "reasonable compensation" for his investment in them. The same day that Prater executed these agreements, she left for Illinois and remained there until her death in 1834. It had long been her purpose to free the slaves she owned and, apparently, she went to Illinois for that reason. She had not taken the mother and her children because Rachel was married to an Alabama slave who Prater did not own. The transaction with Darby was a sham, designed to allow Rachel to remain in Alabama, close to her husband, but eventually attain her freedom.

Darby also died in 1834, leaving Rachel and her children to his wife, Drucilla. Prater’s administrator sued Drucilla Darby in Lauderdale County Circuit Court to recover the slaves. Judge Thomas A. Walker charged the jury that Prater’s administrator could not recover if they believed Martha Prater, in sound mind, had sold the slaves to Richard Darby. Prater’s administrator attempted to amend the charge in various ways that would have made the entire transaction, both the sale and the bond, illegal, which would have cancelled the sale and allowed him to recover the slaves. Darby argued that the sale was legal, but not the bond, which would have allowed her to keep the slaves.

In his decision, Chief Justice Chilton disagreed with both. The true question was the validity of the bond to free the slaves. If it was legal, so was the sale. Nothing in Darby’s bond required him to free the slaves in Alabama, which would have violated the 1834 statute. Prater knew when she executed the bond that the slaves could not be liberated within the state. She could have taken them with her when she left Alabama, but if so why could her agent not do the same? That question had been settled in Atwood’s Heirs v. Beck.

Chilton went on to write that Trotter v. Blocker had ruled "every conceivable mode of emancipation, other than statutory," illegal in Alabama, but he could not perceive "any just rule" that warranted such a conclusion. Why would the people, "the true source of power in a Republican government," yield such a common law right and make themselves dependent upon the legislature to exercise it? Furthermore, the power of the legislature to limit certain rights did not abolish them. If this were true, then the United States Constitution denied to states "the right of self-preservation and protection" because the federal government guaranteed to each state "protection against invasion and domestic violence." At this point, Collier’s opinion in Trotter v. Blocker had been overruled in its entirety.6

In 1855 Judge George Goldthwaite expanded Chilton’s decisions in Atwood and Prater when he wrote for the court in the case of Albert G. Abercrombie’s will, which was signed and dated on December 15, 1848, and admitted to probate in Montgomery County on February 20 of the following year. Through this instrument, Abercrombie sold slave Nancy and her six children to Robert J. Ware for $1.00. He directed Ware to treat the slaves "with humanity according to the position they [occupied] in society" and not allow others to impose upon them. He further directed Ware to free the six children when they arrived at the proper age, by the laws of Alabama, if possible, so they could remain in the state. If not, he directed that they be sent to a free state or nation. Abercrombie also ordered Ware to liquidate his entire estate for the benefit of Nancy and her children. The county court declared the will valid as it pertained to the children, but not for the mother, as Abercrombie had failed to mention her specifically. Ware countered that omission of the mother had been an oversight and the heirs objected to the liberation of the children and the liquidation of the estate for their benefit. Goldthwaite upheld the lower court's decision and went on to say that the Chancery Court had the power to enforce the will even if the executor had refused to do so.7

Three years later, Chief Justice Samuel F. Rice ruled in a similar case concerning the will of John Hooper, who died in 1848 in Dallas County. Hooper directed that his executor take "a yellow woman" named Harriet and her six children to Ohio and liberate them. The will further provided that the executor "settle them comfortably in the country" and "place in some solvent bank…the sum of $10,000," the interest on which would be Harriet's. Hooper’s heirs, who included his brother and executor, agreed to the liberation of Harriet and her children, but offered, instead of the $10,000 bequest, to give her $300 apiece from their shares of the estate. Harriet accepted, but once in Ohio sued to recover the full amount. The Dallas County Chancery Court ruled in her behalf, but on appeal the Alabama Supreme Court, contrary to the decision in Abercrombie, held that the court could not enforce the trust.8

The next year, Judge George Washington Stone, Chilton’s former law partner, wrote the court’s decision in the case of W.P. Kittrell, who sold a slave blacksmith named Carney to Stith Evans for $1,250. Evans agreed that Carney’s representative could purchase his freedom for the amount paid, plus 10 percent annual interest. Kittrell subsequently sued the purchaser in Greene County Chancery Court, saying that Evans had been repaid and demanding that he liberate Carney. Evans contended that he had not been reimbursed and further argued that the agreement to emancipate Carney was invalid. The lower court ruled that Carney be removed to a free state and liberated, but the Supreme Court overturned the decision. Stone contended that the contract to liberate the slave should specify that this act take place outside Alabama because of the statutory prohibition on in-state emancipation, whereas in Prater’s Administrator v. Darby, Chilton had upheld such a contract, provided it did not specifically call for in-state emancipation. Later that year, Stone upheld the principle that slaves could be emancipated by last will if that instrument called for their removal from the state.9

Early in the next decade, the Alabama Supreme Court heard a final attempt to validate a slave’s ability to choose between freedom and servitude, a principle which had been declared illegal in Carroll v. Brumby. The new case involved the will of John T. Creswell, which had been executed in Greene County on October 4, 1856. Creswell created a trust for the liberation of several slaves, who could choose between life in either Liberia or a free state. Should they reject freedom, they would remain in bondage under Creswell’s sister, Zernula Walker. The executor, Samuel P. Creswell, liquidated the estate and sought to liberate the slaves, but Walker and the heirs-in-law contested the matter. The Greene County Chancery Court cited Carroll v. Brumby in declaring void the trust created for the slaves’ benefit.

Judge R.W. Walker, who wrote the Supreme Court’s decision, admitted that courts in several southern states had recognized bequests of freedom that included the option of continued servitude, but these decisions had not addressed a slave’s legal capacity to make such a choice to his satisfaction. According to Walker, that capacity did not exist. Slaves could not make contracts, sue or be sued, or enforce promises made to them. Likewise, they had no legal capacity to choose between freedom and servitude. A bequest that provided this option imparted to slaves rights which belonged exclusively to free men.

Walker acknowledged that slaves were "human beings…endowed with intellect, conscience, and will." Their moral and intellectual qualities determined, to a large extent, their value as property. Being endowed with intelligence and volition, they were deemed capable of committing crimes. The law also treated slaves as persons when they were victims of crimes, such as assault, cruel punishment, and other forms of mistreatment, but as far as their civil status was concerned, they were "mere" property.10

On January 25, 1860, the Alabama legislature amended the state’s laws regarding the emancipation of slaves. This act declared void all portions of wills and other legal instruments made for the purpose of emancipation, including provisions that called for the removal of slaves from the state. The act also repealed all laws and portions of laws authorizing the emancipation of slaves before any court in the state. It did not pertain to wills admitted to probate prior to its passage, but it settled a question that had been debated before the Alabama Supreme Court for more than two decades.11

The jurists who sat on the Alabama Supreme Court agreed that the state had a legitimate interest in regulating the slave population, but disagreed regarding the extent to which that interest should impinge upon private property rights. This threatened the power that slaveholders held over their property, but did it represent any greater threat than the public interest ever poses to individual rights? Perhaps it did, but it did not indicate a fundamental inconsistency in slave law, as some have argued, but rather the particular manifestation of a larger, longstanding dilemma in American jurisprudence. While the terms "public interest" and "individual rights" may clash with the late-twentieth century view of a slave society, these were the concepts that the Alabama Supreme Court sought to balance, and did balance with some success, when considering manumission by last will. 12


1C.C. Clay, Digest of the Laws of the State of Alabama (Tuscaloosa, 1843), pp. 539, 545. (Back)

2Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill, 1996), pp. 373-80.  (Back)

3Trotter v. Blocker, 6 Porter 269 (1838).  (Back)

4Carroll v. Brumby, 13 Alabama 102 (1848).  (Back)

5Atwood’s Heirs v. Beck, 21 Alabama 590 (1852).  (Back)

6Prater’s Administrator v. Darby, 24 Alabama 496 (1854).  (Back)

7Abercrombie’s Executor v. Abercrombie’s Heirs, 27 Alabama 489 (1855).  (Back)

8Hooper v. Hooper, 32 Alabama 669 (1858).  (Back)

9Evans v. Kittrell, 33 Alabama 449 (1859); Pool’s Heirs v. Pool’s Executor, 36 Alabama 12 (1859); Thomas M. Owen, History of Alabama (Chicago, 1921), III: 380. (Back)

10Creswell’s Executor v. Walker, 37 Alabama 229 (1861).  (Back)

11Acts, January 25, 1860, p. 28.  (Back)

12Mark V. Tushnet, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (Princeton, 1981), pp. 191 ff.  (Back)

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