Slaves lacked the legal capacity to select freedom over servitude.


Facts of the Case

John T. Creswell executed his will on October 4, 1856, in Greene County. He died a few days later. In his will, Creswell created a trust for the liberation of Tom, Dublin, Ann, and Maria, who could choose between going either to Liberia or a non-slave state. Should they reject this option, they could remain in bondage under his sister, Zernula Walker. The executor, Samuel P. Creswell, liquidated the estate according to the provisions of the will and sought to liberate the slaves, as was their desire, but Walker and the heirs-in-law contested the latter. Judge James B. Clark of Green County Chancery Court cited Carroll v. Brumby in declaring void the trust created for the slaves’ benefit.


Creswell’s Argument

William P. Webb argued the case of Creswell’s administrator before the Alabama Supreme Court. He contended that Creswell had created a valid trust, just as in Atwood’s Heirs v. Beck. Carroll v. Brumby was "a mere dictum…not sustained by the authority cited from 6 Porter 269." Furthermore, the Carroll case was "opposed to the entire current of authority in other southern states." In support of this claim, he cited 5 How. Miss. 305, 6 Sm & Mar. 93, 10 Monroe 70, 2 Hill’s Ch. 305, and 6 Randolph 654. Even if the court accepted Carroll, it did not pertain because Creswell first created a trust to liberate and slaves and then gave them the option to defeat it by remaining in bondage.


Walker’s Argument

James D. Webb argued Walker’s case before the Alabama Supreme Court. He cited only Carroll v. Brumby.


The Court’s Decision

Judge R.W. Walker wrote the decision for the Alabama Supreme Court. He noted that the court had rendered a decision in a comparable case, Carroll v. Brumby. Creswell now asked the court to reconsider the issue in the light of recent decisions by other southern courts.

Walker admitted that courts in North Carolina, South Carolina, Georgia, Mississippi, Kentucky, and Tennessee had all silently recognized that an otherwise valid bequest of freedom was not rendered void because it took effect only upon the slave’s decision to select freedom over servitude. He cited Washington v. Blunt, 43 NC 253, Jordan v. Bradley’s Heirs, Dud. (Ga.) 170, Frazier v. Frazier, 2 Hill’s Eq. 305, Cleland v. Waters, 19 Ga. 35, Ross v. Vertner, 5 How. (Miss.) 305, Leech v. Cooley, 6 Smedes & M. 93, Graham’s Executor v. Sam, 7 Monroe 403, John v. Moreman, 8 Monroe 100, Adams v. Adams, 10 Monroe 69, Isaac v. McGill, 9 Humph. 616, Wade v. American Colonization Society, 8 Smedes & M. 694. Cobb’s recent work on slavery (p. 363) had further criticized Carroll v. Brumby as "a complete annihilation of the will of the slave," which was "utterly inconsistent with all recognition of him as a person, especially as responsible criminally for his acts." Nevertheless, Walker still considered the Alabama Supreme Court’s earlier decision sound, if only because none of the recent decisions, with the exception of Cleland v. Waters, had specifically addressed a slave’s legal capacity to make this choice.

As far as their civil status was concerned, slaves were "mere property." They could not make contracts, sue or be sued, or enforce promises made to them. As slave’s decision to accept a bequest of freedom was necessarily a civil act which slaves were not capable of performing. Such a bequest was "an effort…to impart to slaves" rights which belonged exclusively to free men. There was no middle status between slavery and freedom.

Slaves, of course, 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. Cobb overlooked this obvious distinction in his criticism of Carroll v. Brumby. This did not mean that the law failed to protect slaves against oppression or injury. They were protected against assault, cruel punishment, and other forms of mistreatment. Furthermore, the fact that slaves could act as agents of their masters did not demonstrate their legal ability to make choices, but rather their absolute subordination. Walker cited Bailey v. Poindexter, 14 Grat. 132, as the chief authority for upholding Carroll, in spite of the recent decisions running against it. In Bailey the question received for the first time "the deliberate consideration" which it demanded.

Finally, Walker rejected the argument that the Carroll decision did not pertain because Creswell created a trust to liberate the slaves and only afterwards gave them the choice between freedom and bondage. The execution Creswell’s will involved a civil choice on the part of the slaves. Slaves lacked the legal capacity to make this choice. Hence the will was invalid.