Will of Captain Isaac Ross

[Legislation on Will]

Letter from Mr. John Ker to the Mississippi State Legislature regarding the wills of Captain Isaac Ross and his daughter Mrs. M. A. Reed - December 15, 1841
 
During the last Session of our Legislature, measures were introduced into the House of Representatives and passed by that body, which were evidently intended to annul the provisions of the last wills and testaments of the late Captain Isaac Ross, and of his daughter, Mrs. M. A. Reed, both of Jefferson county. These measures were defeated in the Senate, but, I regret to say, not without difficulty, arising, as I believe, from misrepresentations by interested or prejudiced persons; and I have reason to believe that the purpose is not yet abandoned, but will be renewed. As I conceive this attempt to legislate away one of the rights most dear to men, and hitherto held sacred, the right to dispose of property by will or otherwise at pleasure, I must ask your patient attention to a brief history of the wills which it was the object of these measures to destroy, after their legality and validity had been sustained, at the end of a severely contested lawsuit, by the highest judicial tribunal of the State.

With the late Captain Isaac Ross, as well as his daughter, Mrs. Reed, I had the honor of a personal acquaintance for more than 20 years, before the death of the former. To those who enjoyed his acquaintance it would be superfluous for me to say that no man could sustain a higher character for unsullied probity and honor, or for vigor, energy and independence. His character was formed in the battle-fields of his country during her war for liberty and independence. By his subsequent industry and energy, he acquired a large fortune, much of which, during his life, he dispensed in the liberal settlement of his children. In August, 1834, he made his will after long deliberation, and in unquestioned sanity and vigor of mind--providing that most of his slaves should have the privilege of being sent to Liberia, in Africa, and that the remainder of his estate should be sold, and after paying some legacies (one of which was $10,000 to a Grand-daughter) the proceeds to be applied to the use and benefit of said slaves in Africa. In October of the same year, in February, March and June, 1835, and in January, 1836, he made as many different codicils, modifying slightly, but all sustaining the main provisions of the will. These circumstances are stated to corroborate what I allege upon my own responsibility, that he had long intended to make the disposition of his property for which the will provided. This is the more proper, inasmuch as great pains have been taken to make the impression, that the will was made in the immediate prospect of death, and under the influence of "priests and fanatics." The truth is, he counseled with no priest or clergyman, and no man was ever more free from the influence of that class of men, or of any description of fanaticism. His slaves (at least most of them) had long labored with and for him, and they felt, in a high degree, the mutual attachment which is not uncommon in the South between master and slave, and which ought to put to shame the slanders of ignorant or wicked Northern fanatics. He ardently desired to provide for their welfare and happiness after his death. It is not for others to determine whether the plan he adopted was wise or unwise. He believed he had an unquestionable right to make such disposition as he pleased of his property, not inconsistent with the rights of others and the laws of his country. He was rather hostile than otherwise to religion, or at least to the creeds taught by any of the prevailing Christian denominations, and although kind and hospitable to clergymen (and all others) who visited his house, he was far from being influenced by any one. Even the Rev. Mr. Butler, who from having been a class-mate in College with a son of Capt. Ross, had visited and become intimate in the family, had never been in any way consulted by him relative to his will.

Capt. Ross died in January, 1836. By the provisions of one of the codicils, he had left to his daughter, Mrs. Reed, the possession and use of his residence and other property, during her life, or as long as she might choose; and provided for the postponement of the principal provisions of the will until her death, or such time as she might previously determine. Before her death, she had ample proofs of the determination of some of the heirs at law of her late venerated Father, to dispute the validity of the will, and to defeat the main objects of the testator. Her filial piety was deeply wounded, and her indignation strongly excited by this intention; and fearing that they might possibly succeed, she determined to make her own will in such manner as would, if possible, avoid the danger of litigation. She accordingly devised her whole estate (with the exception of some small legacies) to Rev. Zebulon Butler and Dr. Stephen Duncan. Before making her will, she consulted with neither of these gentlemen, whom she also appointed her Executors. Nor is there reason to believe that she consulted with any one, except the legal gentleman (the late Mr. Chaplain) whom she sent for to draw up her will. It was not until some time afterwards that Mr. Butler was apprized that he was to be one of the Executors; nor even then did he know the purport of the will. He then regretted, as he has done ever since, that his dying friend would not release him from the duty of serving her in that capacity. He could not resist the solemn and affecting appeals that she made to him when in a dying state. She had intended at a former period, to make a Nephew one of the Executors of a will similar to her fathers', but the course taken with regard to his will had changed that determination, and embittered her feelings towards her relations. She was still farther exasperated by declarations made to her, that a learned lawyer had given his opinion that she could not make a will (to effect her known wishes) that he could not break. To secure, as far as possible, the principal object of her father's will, in case of its being declared invalid, in which event one-third of his estate would be hers by legal inheritance, she made a codicil to her will, devising to Dr. Duncan and Mr. Butler her portion of her father's estate. She doubtless believed that in that case these gentlemen would have power to dispose, without controversy, of this property as they pleased, and that they would at least carry into effect the known wishes of her father, with regard to such of his slaves as should fall into their hands, by virtue of her will. It is also probable, that she expected from them a similar disposition of her own slaves, as she left, at her decease, a letter addressed to them, stating that she had intended to make a will similar to her father's, but that having been informed that such a will might be declared invalid by the Courts, she had made another will and left them her Executors. Soon after the decease of Mrs. Reed, a suit was brought in the Chancery Court to defeat both her will and that of her father. The Chancellor's decree sustained both wills. An appeal was taken to the "High Court of Errors and Appeals," and there, after elaborate arguments, the Chancellor's decree was affirmed. The ground on which the wills were contested was, (assuming that the devise to Dr. Duncan and Mr. Butler was a trust, for the real purpose of emancipating the slaves) their alleged "contravention of the laws and policy of the State," in regard to the manumission of slaves. The Courts decided that the laws and policy of the State, as opposed to manumission except by Legislative consent, had no application to a will providing for the removal of slaves beyond the limits of the State for the purpose of manumitting them--the object of the law referred to having been only to prevent an increase of free negroes within the limits of the State. By the law no citizen could manumit his slave or slaves within the State, except in specified cases, and by Legislative action. But no shadow of doubt could exist, that any citizen possesses the right (which cannot be taken from him even by law) to remove his slaves from the State for the purpose of setting them free, or any other, at his pleasure. Nor until recently was it ever doubted that the right exists in every one to provide by will for the removal of his slaves from the State after his death, without question of his motive or object. Several wills of this nature have been made and executed in this county without even a question of the right, without allegation of their contravening the laws and policy of the State, and without even a suspicion that they were calculated to disturb, or that they had disturbed the peace or safety of society in the relation of master and slave. And in reference to the charge of religious or fanatical influence in dictating the many wills which have provided for the transportation of slaves to Africa, it is a remarkable fact, that, so far as I know, in every case of such testamentary provisions, the testator has not been a professor of religion, but on the contrary some of them have been decidedly hostile to every known Christian sect.

Having, as briefly as possible, stated the facts in relation to these wills, I am now prepared to give you the history of the most extraordinary attempt at Legislation which has ever occurred within my knowledge.

On the 10th day of January, during the last adjourned Session of our Legislature, the following Resolution was passed by the House of Representatives and sent to the Senate for concurrence:
"Whereas, it is provided by the laws of this State, that no citizen thereof "shall, by his or her last will or testament, manumit or set free his or her "slaves, except by the Legislature of this State, evidenced by a special act "for that purpose passed; and whereas Isaac Ross and Margaret A. Reed, "late citizens of the County of Jefferson in this State, did by their last "wills and testaments, attempt directly and indirectly, to manumit upwards "of 300 slaves belonging to them at the time of their decease, for "the purpose of colonizing them in Africa or elsewhere; and whereas it is "contrary to the settled policy of this State, and of dangerous example to "the slaves thereof, to encourage or permit their manumission under the "circumstances aforesaid,
"Therefore be it Resolved by the Legislature of the State of Mississippi, "That they will not consent to the manumission either directly or indirectly "of the slaves mentioned in the last wills and testaments of the said "Isaac Ross and M. A. Reed, nor will they consent to the transportation "of said slaves to Africa or elsewhere, for the purpose of being there "manumitted."
On the 3rd day of February this resolution was finally laid on the table of the Senate by a majority of one vote.

On the 22d of January the following Bill was introduced into the House of Representatives, and, the rules having been dispensed with, was passed, (without a call of the ayes and nays) and sent to the Senate:
"An Act declaratory of the laws and policy of this State on the subject of domestic slavery."

"Section 1. Be it enacted, &c., That from and after the passage of this "act, no Executor or Executors, or any other person or persons, shall remove, "or cause to be removed, the slave or slaves of any deceased person "or persons, from this State, for the purpose of transporting such slave or "slaves to Africa or elsewhere, for the purpose of colonization, emancipation "or freeing such slave or slaves, under or by virtue of any will or "codicil for that purpose. "Sec. 2. Be it enacted, &c., That in all such cases when the slave or "slaves of any deceased person or persons shall have been devised in trust, "or left to the Executors or other persons, for the purposes prohibited by "the 1st section of this Act, that such slave or slaves shall descend to, and "be distributed among the heirs of such deceased person or persons, in the "same manner as if such deceased person or persons had died intestate." "Sec. 3. Be it enacted, &c., That this Act shall take effect from and "after its passage."This Bill having been committed to a Committee of the whole Senate the following amendments offered by Senator Tucker (now Governor elect) were, on the 3d of February, adopted by the Senate--ayes 16; noes 14; viz:
"Amend, Section 1. By inserting after the word 'Executors' in the 3d line (of the Bill) the words following, viz: 'of any last will and testament or 'or codicil, hereafter made and published,' and by inserting after the word 'persons,' same line, 'by authority created or conferred after the passage of this act."

The Bill with these amendments (which it is obvious were necessary to prevent the law from having a retrospective and therefore unconstitutional operation) was passed and sent back to the House of Representatives for their concurrence in the amendments. The printed journals of the House of Representatives show no trace of the Bill there, except the message from the Senate asking concurrence in the amendments. But on the 4th of February it was sent back to the Senate with a message refusing to concur.

On the 5th of February the message of the House of Representatives was called up, and a strenuous effort made to recede from the amendments. But on my motion the Bill was laid upon the table until the Monday following, which was a day after the close of the Session. This was equivalent to rejection. By joint resolution of the two Houses, the Session was to close on Saturday evening, the 6th of February, at 7 o'clock.

Long after 7 o'clock, perhaps 9 or 10, on the evening of the 6th, whilst I was for a moment absent from the Senate Chamber, an attempt was made to call up the Bill. On my return I stated to the Chair, that having been "laid upon the table until Monday next" (a day beyond the Session) "the Bill could not be called up, except by a motion to reconsider," which could be made only by one of the majority who had voted to lay it on the table. It was alleged by some Senators that this was not so, and the Senator in the Chair (not the President, but the same who occupied it the day preceding when the Bill had been disposed of) declared he did not recollect. I insisted, and expressed my surprise that the Chair did not remember, as immediately after the vote I had emphatically called his attention and that of the Senate to the fact, that the motion which had just been carried was to lay on the table to a day beyond the Session. I appealed to the Senate. The President (pro tem.) appealed to the journal. This had not been made up and read as usual in the morning. The Secretary, after looking at his notes, at first alleged that it was the ordinary motion simply "to lay upon the table." But when I still persisted and moved a call of the Senate, he at length discovered that I was right. Thus ended for that session this extraordinary attempt to legislate away the solemn decisions of the highest judicial tribunals of the State.*

[Note : * I cannot but here state a fact, (without attempting to attach blame to any individual, for I know not who is culpable) that the printed Journals of the Sessions in which I served as a Senator, are exceedingly erroneous. To specify an instance or two: in the Journal of the House of Representatives there is no note of any proceedings on the 20th January, and yet the House transacted business on that day. Again in the Journal of the Senate on the 5th of February, there is no record of proceedings of the Senate on the above mentioned Bill, and yet it was, as above stated, taken up and on my motion after debate, "laid on the table until Monday next." And the minutes of Saturday, the 6th, in relation to the action of the Senate on that Bill, does not state the truth. It was NOT taken up (although an attempt was made to take it up contrary to all rules) nor was it on that day LAID UPON THE TABLE, as stated by the Journal. It is no light matter that the Journals of the Legislature should be falsified.]

Soon after these measures had passed the House of Representatives and whilst their fate was pending in the Senate, I addressed myself to a member of that House whom I happened to see in the lobby, and with whom I had always enjoyed respectful and friendly intercourse, and expressed my astonishment to him that the House of Representatives could pass measures of such a character--striking (as I conceived) at the roots--the very vitals--of a government of laws and equal rights. I scarcely know which surprised me most. the fact of his advocating them, or the grounds upon which he did so. He said (in substance) that if the wills should not be defeated by the Legislature, they would be by violence--that every man in Jefferson (County was opposed to the wills, and that 200 men were ready to oppose their execution by force of arms, and that he wished to save that County from the odium or disgrace or such a proceedure. He admitted that he did not believe that the Legislature could reverse a decision of the Courts; but he wished their action upon this subject to exert a "moral influence," &c. I confess that I was then, as I am now, incapable of understanding how a Legislative act, the plain and obvious import and object of which was to make null and void, and to reverse the decrees of the High Court of Errors and Appeals, could exert any moral influence. Nothing that I can conceive of could be more fatally demoralizing in its effects.

Another highly respected member of the House of Representatives denied to me that the will was intended to have any retrospective operation, or to affect the decisions of the Courts. But how can these gentlemen reconcile these declarations with the fact, that when the Senate made the amendments which rendered the Bill prospective only, and deprived it of its obviously intended retrospective character, they refused to concur in the amendments. If, as the innocent title of the Bill purported, the intention was bona fide to declare the laws and policy of the State for the future government of its citizens, why did they not agree to the amendments! But no! this would not reach the real object and therefore the friends of the Bill would not have it. The prime movers of this measure were interested lobby members, and especially one who had labored hard but ineffectually in the Courts for a large contingent fee, and who was now to be seen, day after day and week after week, in the lobbies of the Legislature diligently and ardently promoting the passage of these measures by such arguments as he deemed most potent, and which had well nigh affected their adoption.

But what were the strong arguments used on the floor at the Senate to sustain these measures? In addition to those already alluded to, I think the most prominent were the following:
1. It was alleged that insubordination existed among the slaves of these two estates to such an extent as to produce great and general alarm in the neighborhood, and even lively apprehensions of an insurrection, &c. I cannot do justice to the eloquence which was called into exercise in the description of the dangers and horrors which impended over this ill-fated neighborhood. But like many other splendid passages of poets and orators. this eloquent description had much more of fiction than fact for its foundation. Subsequent investigation has enabled me to say, that on the estate or Capt. Ross there never had been the slightest insubordination, and on that of Mrs. Reed, none more formidable than frequently occurs from the change of overseer--and none that was not promptly quelled by the energy and resolution of a single citizen. But for the sake of argument, suppose it had been true, that the negroes were a vicious, insubordinate and dangerous set. What would have been the danger to the neighborhood, or to the State, of sending them off to Africa? But one of the complaints actually made against the Executors of one or both of the wills, was that the negroes had not been promptly removed. This complaint comes certainly with a bad grace in behalf of those who, by bringing a law-suit to defeat these wills, coerced the Executors to incur the heavy expenses incident to litigation when so large an amount was involved--expenses amounting to more than thirty thousand dollars, and thereby created the necessity of detaining the slaves even after the termination of the suit, to defray them. They first prevented the possibility of removing the negroes by bringing a suit to break the will, and then charge the Executors with unnecessary delay because they have to be detained to make the money to pay the expenses of the suit. 2. It was insinuated, if not alleged, that the wills were made under the influence of the terrors of death and judgment, inspired by "priests and fanatics," operating upon minds enfeebled by disease and suffering. Much also was said of a similar character. These allegations, if true, and if they had been proved before the Courts upon the trial, might have had some just weight, but unfortunately there is not a shadow of truth to support them, and I believe not even an attempt was made to prove them. And in the case of Capt. Ross, the will itself bears internal and irrefutable evidence of the contrary. The privilege intended to be secured to most of his slaves, was distinctly excepted and withheld by the testator, from a portion of them whom he directed to be sold. This proves that it was no death-bed alarm of conscience from the Abolitionists sin of slave-holding. It is evident that if this had been the feeling which prompted the will, it would have been made to embrace all the slaves in the provisions for emigration to Africa. 3. It was alleged of the Executors of Mrs. Reed, that one (Mr. Butler) was a Clergyman, and that the other (Dr. Duncan) is a very rich man, and President of the Colonization Society. An artful attempt was made to identify Colonization with Abolitionism, and to attach the odium which very properly falls upon the latter, to all who would be concerned in executing the intentions or supposed wishes of the testators in regard to the removal of the slaves to Africa. Much was said about fanaticism and "Abolitionism in disguise." I have said that an artful attempt was made, because I can scarcely suppose a Senator, and especially the principal champion on this occasion, so badly informed on the subject as not to know that the most deadly hostility exists, on the part of the Abolitionists, to the Colonization Society, and to the object to which (in the language of its constitution) "its attention is to be exclusively directed," viz: "to "promote and execute a plan for colonizing (with their own consent) the "free people of color residing in our country, in Africa or such other place "as Congress shall deem most expedient." The chief difficulty in the way of the Society is want of adequate funds. Emigrants are offering themselves in greater numbers than they have means for transporting and providing for. This fact proves that the Society could have no motive to persuade masters to emancipate their slaves.The characters of the gentlemen who, without their knowledge, had been appointed the Executors of Mrs. Reed's will, require no defence at the bands of so humble an individual as myself. They are emphatically men without reproach. One of them it is true is a Clergyman; but this, I trust, can only be a subject of reproach, even among those who make no profession of religion, when the life and conduct is inconsistent with the profession. It is in vain that dligent efforts have been made to attach odium to him in consequence of his unfortunate connexion with one of these wills, whilst it is impossible to deny to him the most absolute disinterestedness. Even his accusers unintentionally praise him. Of what is he accused? Of intending or desiring to remove to Liberia, in Africa, his own slaves. A will has been made by virture of which, so long as there is any law in the land, the property (slaves and all) of the late Mrs. Reed, have, incontestibly become the property of Sir. Butler and Dr. Duncan. Their title to the property cannot be questioned, and if there was an Execution in the hands of the Sheriff of that County against either of these gentlemen, it would be subject to seizure and sale to satisfy the Execution--nor could any legal power prevent it. Who will deny That Mrs. Reed had the right to make these gentlemen her heirs? Well, if they had applied the estate to their own use, they might unquestionably have done so. But because they desire to make a disposition of the property by which they cannot be benefitted, they are abused and vilified and even threatened with the interposition of force, to prevent the execution of their intentions. It has been publicly boasted that 500 men are pledged and ready to prevent them from removing their slaves.

I appeal to you, if this is a mere private contest for property, in which we have no concern? So long as it was confined to the judicial tribunals, this would have been the case, and public discussion of the subject would have been improper. But on the part of those who contested the wills, this becoming silence was not observed even pending the litigation in the Courts. Publication was made in the newspapers of the briefs of the lawyers and other ex-parte views of the case, for no other obvious purpose then that of operating through popular prejudices upon the Courts. There was nothing in this case to justify or even to apologize for Such attempts to create popular excitement. It demanded only the calm and unblessed judgment of the Courts--the only tribunals which could legally take cognizance of the questions at issue. But after the most full and labored arguments of the most able and learned counsel on both sides, the High Court of Errors and Appeals, the highest tribunal in the State, affirmed the judgment of the Chancellor sustaining the wills. But, as you have seen, the contest was not given up. The people have been called upon to rise up and put the laws at defiance--calls have been made upon the Legislature to usurp power not granted to them by the people in the Constitution, to annul the solemn decrees of the Courts--to wrest from the hands of citizens property which has been devised to them under the laws of the State. And shall it be said that you and I have no concern with these extraordinary movements? If we quietly fold our arms and passively acquiesce in such proceedings, what security, I ask, have any of us for the protection of law to our property, our lives or our liberty? To what purpose have we yielded a portion of our natural liberty, in the constitution of civil government, if, on the one hand, we are compelled to submit to the decisions of the established tribunals of the country; whilst on the other, in the protection of our rights and property and perchance of our lives, the same authority is to be trampled upon and set at naught? Has it indeed come to this, that the laws of the land are to be annulled by one man or by even 500 men, because certain testators did not happen to make their wills in accordance with their views or with public sentiment. Let us not deceive ourselves. Passive acquiescence in such doctrines or in such measures is criminal. "The poisoned chalice may soon be returned to our own lips." We may be the next victim to the ruthless hand of lawless usurpation and violence.
I am, gentlemen,
Your friend and fellow-citizen,
JOHN KER.
Linden, December 15th, 1841.
(NOTE.)
The above letter was written some time ago, and would then have been published but that the writer was informed, that some legal steps had been renewed in relation to one of the wills. The publication was then suspended. The writer has, however, just seen a copy of the 7th section of a bill now before the House of Representatives, entitled "an act to amend the several acts of this State relative to free negroes and mulattoes." This section is so palpably adapted, and intended to bear upon these wills, that he cannot feel at liberty longer to withhold the publication.
Feb. 1st, 1842.