The recipient of a gift must have the legal capacity to accept it.
A slave does not possess the legal capacity to accept a gift of freedom.
American slaves are not analogous to feudal villeins, but to Greek and Roman slaves.
The 1819 Constitution delegated the power to emancipate slaves to the state legislature, which amounted to a positive prohibition upon the masterís common law right to dispose of property.
In the 1834 statute, the legislature delegated its power to emancipate slaves to the county level, but did not restore the masterís common law right to emancipate slaves.
Cited in Harrison v. Harrison, 9 Alabama 481, Bentley v. Cleveland, 22 Alabama 821, and Devaughn v. Heath, 37 Alabama 597.
Facts of the Case
William Butlerís will, dated August 29, 1832, freed all of his slaves, as well as giving them his plantation utensils, kitchen furniture, one yearís clothing, and one yearís provisions. The will further provided funds for their transportation outside the state, if they could not remain in Alabama as free persons. Butlerís will appointed his brother and brother-in-law as executors.
Butler died on March 13, 1836. Following his death, Richard Burress, who was well-acquainted with Butler and familiar with the terms of his will, obtained letters of administration for the estate from Lawrence County Orphanís Court. He further obtained from the Orphanís Court an order to sell the estate, with the exception of the slaves, which he executed in April 1836. Finally, Burress hired the slaves pending their freedom. The group consisted of Dick, age forty-two; French, age thirty-five; Chalotte, age twenty-four, and her children, Arrenna, five, and Emily, two; Hannah, age eleven; Juliet, age thirty-two, and her children, Ann, seven, and Moses, two; James, age eleven; and Wesley, age nine.
Butlerís next-of-kin were, Mary D. Blocker of Mobile, wife of William Blocker, and three children who resided in Lawrence County with their mother, Mary Butler. They possessed some of the slaves and refused to turn them over to Burress. Meanwhile, one of the executors had died and the other renounced
his appointment. The court appointed Richard Trotter executor and revoked the power of Burress.
The slaves were eager to leave Alabama for a free state and Trotter wanted to facilitate this wish, as well as aid in their recovery of the wages earned while they had been hired, but Butlerís next-of-kin contested the will.
In the spring of 1837, Trotter sued the next-of-kin in Lawrence County Circuit Court. The defendants conceded the facts of the case, but argued against the willís legality. The Circuit Court directed Trotter to apply to Lawrence County Court, under the statute of 1834, for a decree emancipating the slaves, and voided Butlerís bequest of property to the slaves, as well as their claim to the wages for their labor. Both parties appealed this decision to the Alabama Supreme Court. The next-of-kin contended that the court erred in directing Trotter to apply to the Lawrence County Court and Trotter complained that the court erred in not decreeing the slavesí freedom.
Before the Alabama Supreme Court, D.A. Smith argued in Trotterís behalf that, in the absence of statutory provisions, American slaves were governed by the analogies and principles that could be deduced from Roman law. Under the latter, the master had absolute control over the life of a slave, including the power of emancipation.
That, too, was the case in Virginia until the 1690s, when the state provided that freed slaves had to leave the country within six months. Then, in 1723, Virginia further stipulated that slaves could be freed only for meritorious services as determined by the governor and council. The evolution of these powers in Virginia had been reviewed in Pleasants v. Pleasants (2 Call 331), which noted that Virginia masters had had unlimited powers of emancipation prior to 1696.
Prior to 1777 North Carolina masters apparently had the power to emancipate slaves themselves, but in that year the state limited emancipation to meritorious service to be determined by the county court. Tennessee adopted this stringent regulation upon the justification for emancipation, but kept the power of determination with the legislature until 1801. By that time, the legislature was overwhelmed with petitions to emancipate slaves and delegated the power to the county courts. The same act loosened the justification provision to say that the master should set forth his intentions and motives for emancipation.
In the chapter on "Negroes and Mulattoes," Toumlinís Laws of Alabama reported that acts were passed authorizing the emancipation of slaves, apparently without conditions until December 1821, when removal from the state began to be stipulated. This was the case in 1821-22 as indicated in chapters 16-20. Smith presumed that prior to 1821 masters provided security that freed slaves would not become public charges. That was certainly the case following 1822, as indicated in the Acts of the legislature for 1825, pp. 122-4, 1830, pp. 36-39 and 77, and 1832, p. 98.
Alabamaís act of 1834, probably for the same reasons as the Tennessee act of 1801, transferred the power of emancipation from the legislature to the county courts. If, in the judgeís opinion, the slave had performed "long, faithful, and meritorious service, or for other good and sufficient cause," the court could emancipate the slaves, provided they left the state within one year, the emancipation not to take effect until after their departure.
Thus Smith stated the legal background of his case, but the question before the court was whether or not a master could free his slaves by will and have them removed from Alabama if they could not remain in the state as free persons. He contended that to hold this proposition false in itself was "too monstrous" for the spirit of the age and Americaís free institutions. According to the principles of "heathen Rome," such emancipations were allowed. It would disparage the influence that Christianity had had upon the world for the past eighteen centuries "to establish a contrary doctrine."
The United States Supreme Court ruled in McCutchen v. Marshall (8 Pet 220) that the prohibition of a masterís common law right to emancipate slaves must be explicit, but Alabama had no explicit prohibition. Trotterís opponents contended that the 1819 Constitution nevertheless prohibited the right and drew an analogy from the United States Constitution, Article I, Section 8, as expounded by the Supreme Court in Gibbons v. Ogden (9 Wheat 1), which had to do with conflicts between federal and state law. The next-of-kin contended that the stateís prohibition of the masterís common law right was like unto federal lawís sovereignty over state law, but Smith considered the analogy strained.
Trotterís opponents further contended that slaves in Alabama had not been emancipated without legislative consent prior to the statuate of 1834. Smith replied that an 1805 act (Toulmin, Laws of Alabama, p. 632) had necessitated that. Under this law, no slave could be emancipated, except for meritorious service to the territory or the owner as proven to the legislature. This was a positive prohibition, but the new act was not explicit. It was unlike the North Carolina statute, which allowed emancipation only for meritorious service and made no provision to prevent the freed slaves from becoming public charges. Consequently, the slaveís character became the indispensable ingredient in emancipation decisions in that state. Not surprisingly, North Carolina produced the decision in Haywood v. Cravens (2 NC 557), which had no bearing upon the present case.
Did the 1834 act confer upon masters the power of emancipation by will? If it was not conferred within the letter of the statute, it was "surely within the equity," for it resembled more the statute of Tennessee than that of North Carolina. The Tennessee statute had been ruled on by that stateís Court of Appeals in Hope v. Johnson (2 Yerg 123), which had been cited by the United States Supreme Court in McCutchen v. Marshall. In the former case, the Court of Appeals said that "the mind and desire of the owner" could be made know by a will and his executor had a duty to complete its purpose.
Smith further argued that the Alabama Supreme Court should not look with favor upon the next-of-kinís claim because it was "founded on an unnatural disregard of the wishes of an ancestor." If the wishes of deceased had been followed sooner, the slaves would have had the benefit of their labor. Hence they should receive the hire earned since Butlerís death.
The Courtís Decision
Chief Justice Henry W. Collier wrote the courtís decision. He noted that in Brandons v. Huntsville Bank (1 Stewart 320), the Alabama Supreme Court ruled that, in their capacity to own property, American slaves were analogous to Roman slaves, not feudal villeins. The latter had limited property rights, but the former had none. Hence slaves lacked the legal capacity to accept a gift of their own freedom. Furthermore, the imposition of this restraint upon the masterís common law property rights was wise policy. Emancipation by "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.
The framers of the 1819 Constitution well understood the necessity of imposing restraints upon emancipation when they gave the legislature "power to pass laws to permit the owners of slaves to emancipate them." This delegation of power to the legislature restrained the masterís common law right as surely as if it had inhibited the same through a negative declaration. If it had not been the framersí intention to restrict the masterís common law right, why would they have delegated this power to the legislature? Furthermore, prior to 1834 masters had routinely petitioned the legislature to emancipate slaves and there had been no instances of emancipation outside of this avenue. Finally, in the January term of 1830, the court had decided that slaves could not be emancipated without statutory authority. Unfortunately, the decision (Isbell v. Stampp) was not published.
Trotter also argued that, "by an equitable construction," the 1834 statute allowed owners to create a trust for the emancipation of slaves. True, the statute allowed owners to apply for the manumission of slaves, but who was the owner in this instance? The executor of the estate certainly was not because the power to execute a will did not convey ownership of the property. Following death, ownership vested in the heirs of the deceased. Furthermore, an executor might emancipate slaves without the same regard for the consequences that an owner would have. Some states had prohibited emancipation by will for this reason.
Collier argued that the North Carolina decision in Haywood went directly to his point. In that case, the deceased bequeathed thirty slaves to his sister for use during her lifetime. Following her death, twenty-nine of the slaves went to his executors for emancipation "in such time and in such a manner as they might think proper." The sister bequeathed the slaves to someone other than the executors, who sued to recover them. The court ruled that the slaves lacked the legal capacity to accept a gift of their own freedom. Furthermore, the decision was based upon a statute which declared the stateís policy opposed to emancipation and Alabamaís 1819 Constitution implied the same without expressly declaring it.
According to Collier, the United States Supreme Courtís decision in McCutchin did not support Trotterís case.
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