Scott v. Emerson IX: "Principles Do Not Change"

In his dissent, Justice Hamilton Rowan Gamble then turned to the principle that lawyers now call stare decisis -- that is, the doctrine that courts should ordinarily adhere to earlier decisions. Justice Gamble "regard[ed] the question as conclusively settled, by repeated adjudications of this court." Even if he doubted the propriety of those decisions, which he did not, "I would not feel myself any more at liberty to overturn them than I would any other series of decision, by which the law upon any other question was settled."

Justice Gamble saw stare decisis as a bulwark against "the temporary public excitements which are gathered around" the subject of slavery. He then described a process by which slaveholders, unfairly criticized, had understandably become angry at their attackers:

[I]t is, undoubtedly, a matter to be deeply regretted, that men who have no concern with the institution of slavery, should have claimed the right to interfere with the domestic relations of their neighbors, and have insisted that their ideas of philanthropy and morality should be adopted by people who are certainly capable of deciding upon their own duties and obligations. That the present owners of slaves, when denounced, in terms that would be appropriate, if they had actually kidnapped the slaves from the coast of Africa, or had inherited the fortunes accumulated by such iniquitous traffic, should feel exasperated by such wanton and unfounded attacks, is but natural.

But it was precisely in this heated atmosphere that calm resort to stare decisis was necessary:

That alienation of feeling and, finally, settled hostility will be produced by this course of conduct, is greatly to be apprehended. But, in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal question upon which the rights of parties depend.

Justice Gamble then reviewed the many cases in which the Supreme Court of Missouri had "recognized, from the beginning of the government, as a correct position in law, that a master who takes his slave to reside in a State or territory where slavery is prohibited, thereby emancipates the slave." His review included many of the cases discussed in previous entries here, including Winny v. Whitesides, Julia v. McKinney, Nat v. Ruddle and Rachael v. Walker. (For discussion of these cases, click on the tags to the right.)

Nor was the Supreme Court of Missouri alone in reaching this conclusion. The courts of other slave States, "including those in which it may be supposed there was the least disposition to favor emancipation," were in agreement. Justice Gamble then discussed decisions by the Supreme Court of Louisiana, the Supreme Court of Mississippi, the Court of Appeals of Virginia and the Court of Appeals of Kentucky. All of the decisions, Justice Gamble asserted, stood for the proposition

that where a right to freedom has been acquired, under the law of another State or community, it may be enforced by action, in the courts of a slaveholding State; for, in every one of these cases, the party claiming fredom had not procured any adjudication upon his right in the country where it accrued.

These decisions of other States, and the earlier decisions of the Supreme Court of Missouri, were entitled to particular deference precisely because they were issued before the topic of slavery had become superheated:

The cases here referred to, are cases decided when the public mind was tranquil, and when the tribunals maintained in their decisions the principles which had always received the approbation of an enlightened public opinion. Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decisions, but in those principles, which are immutable.

Scott v. Emerson VIII: "His Own Voluntary Act"

You will recall that Justice Scott of the Supreme Court of Missouri denied that, in earlier cases granting freedom, the "result was brought about by a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist."

In his dissent, Justice Gamble took issue with this assertion. "The perfect equality of the States, lies at the foundation of the Union." Because each State is free to adopt or reject the institution of slavery, as it sees fit, "[a]s citizens of a slaveholding State, we have no right to complain of our neighbors of Illinois, because they introduce into their State Constitution a prohibition of slavery." From this, it follows that a citizen of Missouri "who removes with his slave to Illinois" has done so knowing "that the fundamental law of the State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave." The act of removal to a free State

is as much his own voluntary act, as if he had executed a deed of emancipation. Nor can any man pretend ignorance, that such is the design and effect of the constitutional provision. The decisions which have heretofore been made in this State, and in many other slaveholding States, give effect to this and other similar provisions, on the ground, that the master, by making the free State the residence of his slave, have voluntarily subjected himself and his property to a law, the operation of which he bound to know. It would seem difficult to make any sound distinction between the effect of an emancipation produced by the act of the master, in thus voluntarily placing his slave under the operation of such a law, and that of an emancipation produced by the act of the master, by the execution of an instrument of writing in any State where the slave resided, which, according to the law of the State, would be sufficient to discharge the slave from servitude, although it might not be a valid emancipation under the laws of another State.

Scott v. Emerson VII: Hamilton Rowan Gamble

Justice Hamilton Rowan Gamble dissented. The opening sentence of his opinion suggested that he believed that more was at stake than one man's freedom: "As I am constrained to depart from the opinion given by a majority of the court, the questions involved in the case and the present condition of feeling in the country, seem to require that I should state the grounds of the dissent."

Justice Gamble began his analysis by noting that slaves were not merely property. Because slaves were human beings, slavery was also a status, which the law had always treated differently:

In all ages, and in all countries in which slavery has existed, the slave has been regarded not merely as property, but also a being capable of acquiring and holding certain rights, by the act of the master. He could acquire and enforce his right to freedom in modes recognized by the law of the country in which he dwelt.

After surveying authorities from Coke to Justinian, Justice Gamble turned to the laws of emancipation in the slaveholding states. He noted that, if a master emancipated his slave in one slaveholding state in compliance with that state's laws, "the right to freedom will be fully sustained in the courts of all the slaveholding States, although the act of emancipation may not be in the form required by the laws of the State in which the court is sitting."

In lawyerly fashion, Justice Gamble employed a hypothetical -- and some rather angry language that betrayed his bitterness at Justice Scott's reasoning and result. Suppose a Missouri master freed his slaves in his will in accordance with Missouri law, and the former slaves emigrated to another slave state, where emancipation by will was not permitted. "[N]o person is so ignorant as to suppose that they would lose their right to freedom by such a change of residence." The principle was "perfectly plain."

In short, Justice Gamble seemed to say, no true conflicts of laws question existed. Just as real estate questions are decided in accordance with the law of the state in which the real estate is located, the question as to a slave's status is decided in accordance with the law of the State where the status was acquired:

In all such cases, courts continually administer the law of the country where the right was acquired; and when the law becomes known to the court, it is just as much a matter of course, to decide the rights of the parties according to its requirements, as it is to settle title of real-estate, situate in our State, according to our own laws.

Scott v. Emerson VI: "The Providence of God"

Justice Scott closed with a paean to black slavery as a civilizing and humane institution:

As to the consequences of slavery, they are much more hurtful to the master than the slave. There is no comparison between the slave in the United States and the cruel, uncivilized negro in Africa. When the condition of our slaves is contrasted with the state of their miserable race in Africa; when their civilization, intelligence and instruction in religious truths are considered, and the means now employed to restore them to the country from which they have been torn, bearing with them the blessings of civilized life, we are almost persuaded, that the introduction of slavery amongst us was, in the providence of God, who makes the evil passions of men subservient to His own glory, a means of placing that unhappy race within the pale of civilized nations.

Having justified the institution, Justice Scott imposed it on Dred Scott: "[T]he judgment is reversed, and the cause remanded."

Scott v. Emerson V: "Times Are Not Now As They Were"

Now Justice Scott comes to the heart of the matter. "[T]he comity shown to the laws of other States, is a matter of discretion, to be determined by the courts of that State in which the laws are proposed to be enforced" -- that is, in this instance, by the courts of the State of Missouri.

Even so, why should Missouri, after thirty years, decline to enforce the laws of other States concerning slave freedom? Justice Scott's answer says volumes for the increasing anger and distrust between the sections in the early 1850s:

If it is a matter of discretion, that discretion must be controlled by circumstances. Times are not now as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequences must be the overthrow and destruction of our government. Under such circumstances, it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others.

Scott v. Emerson IV: "It Is Humiliating"

When we left him, Justice Scott had set the stage: laws are generally and presumptively local; if a state chooses to apply foreign law, it does so voluntarily and as a matter of comity.

Having set the stage, Justice Scott moves in closer. Two considerations suggest that Missouri should decline to apply foreign law here. First, "[i]t is a humiliating spectacle, to see the courts of a State confiscating the property of her own citizens by the command of a foreign law." States that free slaves are enforcing their own laws; should not Missouri do the same?

The geography of Missouri makes it especially vulnerable. "On almost three sides the State of Missouri is surrounded by free soil." "[N]umberless" slaves might be freed when "those living along an extreme frontier" sent them even briefly across the border.

Scott v. Emerson III: "The Act is the Thing"

The majority decision was written by Justice William Scott. After describing the facts, Justice Scott began by identifying the basis for the court's decisions "to exact the forfeiture of emancipation." It was not "a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist." Rather, the decisions presumed "it is the duty of the courts of this State to carry into effect the Constitution and laws of other States and territories, regardless of the rights, the policy or the institutions of the people of this State." "The old cases say, the intent is nothing, the act is the thing."

Justice Scott immediately questioned whether this duty existed. Although the States were "associated for some purposes of government," they "have always been regarded as foreign to each other" "in relation to their municipal concerns." In "all . . . matters of internal police," such as the laws of estates, States generally follow their own laws and not those of other States or federal laws "enacted for the mere purpose of governing a territory."

In short, there was no obligation to observe or enforce the laws of other States:

Every State has the right of determining how far, in a spirit of comity, it will respect the laws of other States. Those laws have no intrinsic right to be enforced beyond the limits of the State for which they were enacted. The respect allowed them will depend altogether on their conformity to the policy of our institutions. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.

Scott v. Emerson II: A Soldier and A Slave

The facts, as the Supreme Court of Missouri understood them, were simple.

Dr. John Emerson was a surgeon in the U.S. Army. From 1834 until April or May 1936, Emerson "was stationed at Rock Island, a military post in the State of Illinois." After that, Emerson was stationed until 1838 "at Fort Snelling, also a military post in the territory of the United States" "ceded to by France to the United States, under the name of Louisiana, which lies north of 36 degrees 30 minutes, north latitude, not included within the limits of the State of Missouri." Dred Scott was Emerson's slave, and Emerson "held him in servitude" in both locations.

Years later, Scott brought suit for his freedom in the St. Louis Circuit Court. Because Emerson had died, Scott named as defendant Irene Emerson, Dr. Emerson's wife and administratrix.

At trial, the Circuit Court instructed the jury, "in effect, that if such were the facts, they would find for Scott. He accordingly obtained a verdict. The defendant moved for a new trial on the ground of misdirection by the court, which being denied to her, she sued out this writ of error."

It is worth recalling that we have run into a virtually identical scenario before. In Rachael v. Walker (1836), the slaveowner was a soldier posted to Fort Snelling (near Minneapolis). Sixteen years earlier, the Supreme Court of Missouri held that Rachael's servitude there entitled her to be free.

Scott v. Emerson I: Background and Approach

Unlike the cases I have discussed to date, there is copious information available, both online and in books (you know, the kind made out of paper), about Dred Scott. Although this includes a fair amount of information about the background, most of the discussion centers, of course, on Justice Taney's infamous 1857 Supreme Court decision.

I am going to focus elsewhere -- on the decision of the Supreme Court of Missouri in Scott v. Emerson, 15 Mo. 576, 1852 WL 4171 (1852), Scott's first case, filed in Missouri state court. As I pointed out in an earlier post, the Missouri Supreme Court's decision made Scott's later, federal court suit, and the United States Supreme Court's decision in that second suit, necessary -- and possible. In other words, if the Supreme Court of Missouri had simply adhered to its earlier opinions, Scott would have won on state-law grounds. The United States Court could not have intervened.

In his magnificent -- and I do mean magnificent -- book, The Dred Scott Case: Its Significance in American Law and Politics, Don E. Fehrenbacher explores (among many other things) the many uncertainties and ambiguities about the facts underlying and surrounding Dred Scott and his cases. I will take a different approach. For my purposes, the important facts are those that the Supreme Court of Missouri understood to exist. It was based on those perceived facts that the court issued its decision.

In posts to follow, I will review the facts as the Supreme Court of Missouri understood them. I will then review the court's decision and analysis. As I have with other cases, I intend to quote liberally from the decision to give you a taste of the passion -- red-hot anger is a better term -- that underlay it. Dred Scott the man became, unfortunately, collateral damage in the seething bitterness and hatred roiling the country in the years immediately preceding the Civil War.

Slave Freedom Law in Missouri in the 1840s: "This Anomalous Character"

We have seen that, between 1824 and 1837, the Supreme Court of Missouri decided at least seven slave freedom suits. After 1837, a lull ensued; the court did not decide its next slave freedom suit until 1845.

The reason for the lull is unknown. Sometimes, these things just happen. It is possible to speculate, however, that law as laid down by the Supreme Court was at last understood. The fact that the law was settled meant that fewer cases went to trial, and in those that did the Circuit Court in St. Louis delivered proper instructions. The parties therefore understood that there was no point to an appeal.

By the mid-1840's, a harsher wind was beginning to blow. In 1845 and 1847, the Supreme Court of Missouri decided two cases, Chouteau v. Pierre, 9 Mo. 3, 1845 WL 3817 (1845) and Charlotte v. Chouteau, 11 Mo. 193, 1847 WL 3811 (1847). Although the decisions did not change the existing law, they clearly reflected a more crabbed approach to slave freedom suits.

The cases were factually related: the two plaintiffs, Pierre and Charlotte, were brother and sister (or at least half-brother and half-sister). Their mother, Rose, "was a negress, and was born in Montreal, in Lower Canada, about the year 1768." In about 1791, she was taken to Prairie du Chien, in the Northwest Territory. She remained there until about 1794. In 1795 she was taken to St. Louis. Pierre was born in Missouri, probably in the late 1790s, and lived there in slavery for over forty years. It is not clear whether Charlotte was born before or after her brother. By the 1840s, Rose was presumably dead, having lived in slavery her entire life.

In both suits, the siblings claimed that they were free due to their mother's residences. First, they asserted that slavery had been forbidden in Canada while their mother was there. Second, they asserted that her residence in the Northwest Territory in the 1790s made her free.

Without overruling previous cases, both decisions signaled a less generous view of slave freedom law. For example, the court held that Rose's residence in Northwest Territory did not free her children. Although the Northwest Ordinance was passed in 1787, the court conducted historical research and concluded that the British did not physically evacuate Prairie du Chien (where Rose resided) until mid-1796. Therefore, the Northwest Ordinance did not have "any force or validity" at Prairie du Chien in 1791-94, and Rose "never could have acquired any rights under" it.

More important, however, is the tone. Charlotte v. Choueau, the 1847 case, concludes with the following rhetoric, not encountered in earlier cases, that bodes ill for the future, for it suggests that the court is beginning to question the extent to which Missouri should observe the laws of free states and territories:

The instructions asked by the plaintiff [slave] need no particular comment. Their general spirit is not in conformity to the policy of our laws or the principles heretofore adjudicated by our courts. Whatever may be the policy of other governments, it has not been the policy of this State, to favor the liberation of negroes from that condition in which the laws and usages have placed the mass of their species. On the contrary, our statute expressly throws the burden of establishing a right to freedom upon the petitioner, and the provision is both wise and humane. Neither sound policy nor enlightened philanthropy should encourage, in a slaveholding State, the multiplication of a race whose condition could be neither that of freemen nor of slaves, and whose existence and increase, in this anomalous character, without promoting their individual comforts or happiness, tend only to dissatisfy and corrupt those of their own race and color remaining in a state of servitude. Different principles and other presumptions may be very safely and perhaps very wisely indulged in where the institution of slavery has never existed or has been entirely abolished.

Wilson v. Melvin II: "They Must Have Been Very Incredulous Indeed"

Justice George Tompkins, whom we have encountered before, wrote the decision for the unanimous Supreme Court of Missouri. After describing the facts, Justice Tompkins discussed the court's earlier decisions, focusing particularly on Julia v. McKinney. I have reviewed Julia at length in earlier posts. Based on his review, Justice Tomkins reaffirmed the general rule that a slave did not become free merely by "traveling" through a free state or territory with his master. However, he gave traveling a restrictive definition. It required continual movement with only "necessary" stops:

"[Traveling] should last so long as might be necessary according to the common modes of traveling, to accomplish [the slaveholder's] journey through the State. If accident should happen to the emigrant, which, in ordinary cases, would make it reasonable and prudent to suspend his journey a short time, we think he might do so without incurring a forfeiture [i.e., loss of his slave], if he resumes his journey as soon as he safely could. Something more than mere convenience, or ease of the emigrant, ought to intervene to save him from a forfeiture. Something of the nature of necessity should exist before he would, or ought, to be exempted from the forfeiture."

So measured, Justice Tompkins held, the jury instructions were "wrong." In effect, Justice Tompkins held that it was irrelevant whether Melvin had used Wilson as a slave in Illinois. It was also irrelevant that Melvin had kept his wagon loaded. The sole question was whether Melvin "made any unnecessary delay in Illinois."

Justice Tompkins's observations about the case make clear that his decision was based on no mere technicality. He was angry that the trial judge had given "misleading" instructions, and he did not believe that any reasonable jury could rule against Wilson. He came close to saying in so many words that he believed that Melvin's defense -- that he had not intended to reside in Illinois -- was a lie that no one could believe:

"[B]ut it being proved that he [Melvin] stayed there [in Illinois] for three or four weeks before he went to St. Louis, and that, in a very short time, he returned and made a crop of corn, and remained in the State to gather and sell it. If they [the jury] believed that the defendant did this, without any intention of domiciliating himself therein, they must have been very incredulous indeed. So that even admitting that it was in evidence, that the defendant had, when he left home, meditated a journey through Illinois to Missouri, it appears that the jury ought, in conformity with this instruction, to have found for the plaintiff. Because, then, all the instructions given by the court appear to me to be calculated to mislead a jury."

The court therefore reversed the judgment against Wilson and remanded for a new trial "to be proceeded in conformably [sic] to this opinion."

Wilson v. Melvin I: A Careful Slaveowner

Before I get to Scott v. Emerson (1852), however, there are a few more cases I want to look at briefly.

Wilson v. Melvin, 4 Mo. 592, 1837 WL 2327 (1837), is probably the high-water mark for slave freedom suits in Missouri. As usual, let's start with the facts.

In March 1834, the defendant, Daniel Melvin, moved from Tennessee to St. Clair County, Illinois, where his son already lived. Melvin brought with him two slaves, one of whom was the plaintiff, Daniel Wilson. (Interestingly, this is the first slave freedom case I have discussed in which the caption identifies the slave by his last name rather than his first.)

Melvin moved with the apparent intention of residing in Illinois: he came with a wagon and team. However, before he left or when he arrived, he was warned that, if his slaves established residence in Illinois, the slaves would obtain their freedom. He therefore parked the wagon on his son's property and did not unload it. "He appears to have been impressed with the belief that unloading his wagon would have been evidence that he had a fixed place of abode." He rented land nearby "and made a crop of corn on rented ground."

Melvin also apparently took steps to avoid using his slaves as slaves while in Illinois. During this period, "the slaves did little except to feed the horses." It also seems that Wilson, the slave, hired himself out on odd jobs and probably gave most of his pay to Melvin, but there was no evidence that Melvin had arranged this work or even encouraged it.

After a month or so, Melvin took his two slaves to St. Louis, where he sold them. Wilson then brought this suit in the state Circuit Court of St. Louis County.

At trial, the Circuit Court gave the jury quite liberal instructions. Among other things, the court instructed that "[i]f they shall be of the opinion that the defendant [Melvin], being a domiciliated resident of the State of Illinois, used the plaintiff as his slave therein, they shall find for the plaintiff [Wilson]." The court gave a similar instruction concerning hiring out. Presumably because there was no clear evidence that Melvin had actually used or hired out Wilson as a slave in Illinois, the jury nonetheless returned a verdict in favor Melvin and against Wilson.

Wilson then appealed to the Supreme Court of Missouri. In the next post, we shall see the Supreme Court stretching to reverse.

Slave Freedom Suits in Missouri: A Review

I have now discussed six cases decided by the Supreme Court of Missouri between 1824 and 1836: Winny v. Whitesides (1824); Merry v. Tiffin (1827); Milly v. Smith (1829); Julia v. McKinnney (1833); Nat v. Ruddle (1834); and Rachael v. Walker (1836). In each, the issue was whether Missouri courts should award a slave his or freedom because that slave had, at some point in the past, resided in a free state or territory.

The cases are remarkable. In each, the Supreme Court held that Missouri courts should apply the law of the free state or territory if the slave had resided there. Although the court drew the line at truly transitory presence, the court interpreted “residence” broadly. Although it characterized a master’s loss of his slave as a “forfeiture,” it repeatedly rejected attempts by slaveholders to narrow the definition of residence in lawyerly ways that would probably not have raised many eyebrows. To the contrary, the court expressed its frustration with slaveholders continued to contest what the court regarded as well-settled legal precedent.

The cases also suggest that the slaveholder litigants were not the only people unhappy with the court’s rulings. In rendering its decisions, the court was repeatedly forced to reverse jury instructions given by the state Circuit Court in St. Louis. Trial judges seem to have been sympathetic to slaveholder concerns and were interpreting the Supreme Court’s precedents to avoid or at least reduce their impact on slaveholders.

Finally, and perhaps most worthy of note, is what the cases do not say. There is no indication that even slaveholders were arguing that Missouri courts should not give some effect to the laws of the free states and territories. There is no suggestion that even slaveholders were contending that Missouri should simply apply its own law and ignore the law of other states and territories. Such contentions were apparently too outlandish for even determined slaveholders to make in the 1820s and 1830s.

I’m sure that you know where I am going by now. In the early 1850s, all this will change. In installments to follow, I will discuss the Supreme Court of Missouri’s decision in Scott v. Emerson, 15 Mo. 576, 1852 WL 4171 (1852). The United States Supreme Court’s later decision in Scott v. Sandford, 60 U.S. 393 (1857), is far more famous (or infamous); but it is the decision of the Supreme Court of Missouri – reversing almost thirty years of state law – that made the later decision necessary – and possible.

Rachael v. Walker III: Justice McGirk Becomes Annoyed

As you may recall, the attorney for Walker, Rachael’s owner, claimed that Rachael’s stays at Fort Snelling (now in Minnesota) and Prairie du Chien, Michigan, did not make her free due to “necessity” – Stockton, Rachael’s owner at the time, was an officer in the U.S. Army and was posted to those sites.

Justice Matthias McGirk of the Supreme Court of Missouri expressed annoyance verging on disgust with the repeated attempts of slaveowners to avoid what he regarded as well-settled law. “It seems that the ingenuity of counsel and the interest of those disposed to deal in slave property, will never admit anything to be settled in regard to this question.” He therefore found it necessary “to state again the principles on which this court has heretofore rested in the many decisions heretofore made in regard to this ordinance.” He then reviewed some of those cases, including Winny v. Whitesides (1824) and Julia v. McKinney (1833).

The court then laced into Walker’s defense, denying that “necessity” required Stockton to bring a slave into free territory:

“In that case [Julia v. McKinney], the court say there should be something like necessity existing, to justify the owner of a slave to keep such slave in the country, so as to save a forfeiture. The counsel [for Walker] insist on a necessity as regards the owner to stay and abide in the Missouri territory and Michigan for more than two years, and during all that time to keep the plaintiff there as a slave. It is said the officer was under orders from the government to remain there where he did, and therefore a necessity existed which brings him within the reason of the decision in Julia’s case. This plea of necessity, is well answered by Mr. Spalding for the plaintiff, which answer is, that though it be true that the officer was bound to remain where he did, during all the time he was there, yet no authority of law or the government compelled him to keep the plaintiff there as a slave.”

Justice McGirk then provided a hypothetical that amounted to a reductio ad absurdum:

“[S]hall it be said, that because an officer of the army owns slaves in Virginia, that when as officer and soldier, he is required to take command of a post in the non-slave holding States or territories, he thereby has a right to take with him as many slaves, as will suit his interests and convenience? It surely cannot be the law; if this be true, then it is also true that the convenience or supposed convenience of the officer repeals as to him and others who have the same character, the ordinance and the act of 1821 admitting Missouri into the Union, and also the prohibitions of the several laws and constitutions of the non-slaveholding states.”

He also dismissed the argument that there should be no forfeiture because Stockton’s slaveownership (if that’s a word!) was de minimis:

“But it is said . . . that the plaintiff was only employed as a body servant, to induce the belief of the fact that the service she performed was necessary, or perhaps to establish the fact that he officer has a right to a family servant. We are yet to learn that the law, which gives to officers servants of a certain sort, authorize such officers to hold slaves in lieu of such servants, and in places forbidden by the ordinance.”

The bottom line, according to Justice McGirk, was that Stockton held Rachael as a slave in free territory as “his voluntary act, done without any other reason than that of convenience,” not necessity. As a result, both Stockton “and those claiming under him must be holden to abide the consquences of introducing slavery both in Missouri territory and Michigan, contrary to law. The judgment of the Circuit Court is reversed – the cause is remanded for a new trial.”

Rachael v. Walker II: The Arguments

As you may remember, in Julia v. McKinney, 3 Mo. 270, 1833 WL 3254 (1833), the Supreme Court of Missouri had drawn a distinction between traveling through and residence in a territory or state. Although I did go over the point in detail, the court did note that traveling through did not require continual movement, but rather conduct consistent with traveling as generally understood. This might vary with circumstances, weather and the like. In winter or during floods, a traveler might well halt for periods of time, for example. The court in that case stated:

“How long the character of emigrant or traveler through the State may last, cannot by any general rule be determined; but it seems that reason does require it should last so long as might be necessary, according to the common modes of traveling, to accomplish a transit through the State. If any accident should happen to the emigrant which in ordinary cases would make it reasonable and prudent for him to suspend his journey for a short time, we think he might do so without incurring a forfeiture, if he resumed his journey as soon as he safely could. Something more than the mere convenience or ease of the emigrant ought to entervene to save him from a forfeiture. Something of the nature of necessity should exist before he would or ought to be exempt from the forfeiture.”

(Emphasis added)

Walker’s counsel drew from Julia and other cases an exception to residence based on “necessity.” He argued that the court had recognized that residence did not attach when a slaveowner was required to remain in one place for a time due to necessity or compulsion. He then asserted that Stockton’s presence in free territory was compelled because of his service in the United States Army. Justice Matthias McGirk, speaking for the unanimous court, paraphrased Walker’s argument as follows:

“[Counsel for Walker] contends . . . that by all the decisions made by this court exceptions are allowed to exist, which exceptions to the positive words of the [Northwest] ordinance [by which slaves would otherwise be freed], must be raised of necessity. One case allowed by the court is this, that if a person be passing through the country with slave property, which he has a right to do, if high waters detain him with his slave, and he resumes his journey as soon as may be the time necessarily staid with his slave, shall not be considered as a residence, so as to work a loss of his slave.”

Counsel then applied the principle to the present case:

“He then contends that in this case, Stockton was a soldier of the American army, and as such, was bound to be and remain whersoever his superior officer should command him to be; that the slave was only with him as a servant, and not as a slave, and being obliged by law to be and remain in a country where slavery is forbidden, he had a right to take this to have his servant there also.”

Rachael’s response was short and sweet:

“Mr. Spalding answers this argument, by saying although this officer was bound by law and authority, to be and remain in a country where slavery is not allowed, yet no law nor public authority required nor compelled him to [bring a] person there as a slave nor as a servant.”

Rachael v. Walker: An Officer and A Slave

Rachael (not a misspelling), the plaintiff in Rachael v. Walker, 4 Mo. 350, 1836 WL 2300 (1836), was a slave in Missouri. In 1830, an agent purchased Rachael for J.B.W. Stockton and in the fall of that year took her to Fort Snelling, “on the west side of the Mississippi river, and north of the State of Missouri, and in the territory of the United States,” in what is now the State of Minnesota. Stockton “was an officer of the United States army attached to the troops” at Fort Snelling. He had been posted there for about two years (i.e., since about 1828). He apparently purchased Rachael because he had just married.

Stockton “held [Rachael] as a slave [there] until the fall of the year 1831” – about a year. At that point, he was transferred to Prairie du Chien, “in the Michigan territory and east of the Mississippi." Stockton took “Rachael with him as his slave, at which place he held her in slavery, till about the spring of the year 1834, when he took her to St. Louis and sold her.”

At both Fort Snelling and Prairie du Chien, “Rachael was only employed in attendance on Stockton and his family.” Although Stockton was an officer in the army, “Rachael was never employed otherwise than as a private servant in immediate attendance on Stockton and family.”

Rachael filed a suit to obtain her freedom in Missouri state circuit court. The defendant, Walker, argued that Stockton’s presence at Fort Snelling and Prairie du Chien should not be counted as residence there because he had been in the army. The Circuit Court judge agreed and

“instructed the jury that the law was, that if said Stockton was an officer of the army while he held the plaintiff in slavery, stationed at Fort Snelling and Fort Crawford by the property authority, and if he employed the plaintiff during that time only in personal attendance on himself and family, that such residence of the plaintiff as has been proved, does not entitle her to freedom.”

The jury returned a verdict in favor of Walker and against Rachael. Rachael appealed to the Supreme Court of Missouri.

Nat v. Ruddle II: The Instruction Was Reasonable

As I explained in my first post on this case, the trial judge had instructed the jury that, “if the defendant [Ruddle] took the plaintiff [Nat] into Illinois and used him there as a slave or permitted him to be used as such, then they should find for the plaintiff.” Justice George Tompkins, writing for a unanimous court, found this instruction sufficient. He began by explaining the general rule established by the court’s earlier cases:

“It has often been decided in this court, that to entitle a slave to recover in an action of this kind, the slave must abide in the State of Illinois, by and with the consent, express or implied, of his owner, long enough to induce the jury to believe that the owner intended to make that country the place of the slave’s residence.”

Justice Tompkins believed that the trial court’s instruction was “even broader and more favorable to the plaintiff than the rule established by this Court” because “according to this instruction, the jury were unlimited as to time or the intention of the defendant.” In other words, the instruction downplayed the residence requirement and potentially allowed the jury to rule in Nat’s favor even if he were brought to Illinois only on a temporary basis.

The Supreme Court seemed to think that the failure of the trial court to give the instruction requested by Nat’s counsel was harmless error:

“If the visits of the defendant [sic, should be “plaintiff”] had been so frequent and his stay so long as to induce a belief that his owner intended them as a pretext for keeping the plaintiff in Illinois in violation of the constitution, the jury were authorized by the instruction given by the Circuit Court, to consider both the visits, and the labor performed, as well as the hiring proved, to go to establish the fact that the slave was taken to Illinois by his master, and there used as a slave.”

In short, the instruction as a whole was reasonable, and Nat had a fair trial:

“The jury had before them the whole evidence, with a correct and liberal direction from the court, and the state of the evidence is not such as to induce this court to disturb the judgment of the Circuit Court.”

Nat lost. A court struggling to avoid this result might have seen unfairness in the trial court’s refusal to give the additional instruction, because the instruction given suggested that Nat had to show that his owner had taken him to Illinois. On the other hand, nothing in the decision suggests that the Supreme Court of Illinois was backing away from its commitment to apply Illinois law, and to do so in relatively generous fashion, if not literally. One suspects that the judges thought that there was a reasonable likelihood that Nat had gone to Illinois without permission, in which case heroic efforts to grant him a new trial were inappropriate.

Nat v. Ruddle I: The Facts

The crucial facts in Nat v. Ruddle, 3 Mo. 400, 1834 WL 2555 (1834), were hotly contested. The parties apparently agreed that Nat was originally Ruddle’s slave in Missouri until 1829; and that in 1829 Ruddle moved from Missouri to Illinois and “left the plaintiff Nat hired out in Missouri.” But there, the stories diverged.

Ruddle claimed that Nat “ran away from Missouri and went to Illinois, and was frequently at his master’s house on visits to the family. By both plaintiff and defendant, evidence was given that plaintiff hired himself out in Illinois; but there was no evidence that Ruddle received the hire.”

Nat, in contrast, contended that “he was employed on the farm of the defendant in the State of Illinois, to which place he was brought from Missouri, and after staying some time in Illinois he was sent back to Missouri.” In the alternative, Nat seems to have suggested a more subtle scenario. In this version, Nat left Missouri without permission and went to Ruddle’s farm in Illinois “on a visit.” When Ruddle discovered him there, Ruddle did not object and instead put him to work and hired him out.

Nat filed his suit for freedom in the Circuit Court of St. Louis County. The trial court charged the jury that they should find in Nat’s favor if “they believe that the defendant took the plaintiff into the State of Illinois and used him as a slave there or permitted him to be used as such.” On the other hand, if they believed Ruddle’s story, they should find for him. “[I]f the plaintiff went into that State [Illinois] on a mere voluntary visit, or ran away from Missouri to that State, he would not thereby be entitled to his freedom.”

Neither of the instructions precisely addressed the alternate factual scenario advance by Nat. Nat’s lawyer asked the judge to instruct the jury that, if they believed this account, they should rule for Nat:

“The counsel of the plaintiff then asked the court instruct the jury that if they found that the plaintiff went on a visit to the master’s house and the master made no objection to such visit to Illinois, but employed him in planting corn and harvesting in Illinois and permitted the plaintiff to hire himself to labor in that State, they ought to find for the plaintiff.”

The trial judge declined to give this instruction. The jury returned a verdict in favor of Ruddle. Nat appealed to the Supreme Court of Missouri.

Julia v. McKinney IV: The Dissent

The opinion of the dissenter, Justice Robert Wash, illustrates just how easy it would have been for Justice McGirk to write a decision affirming the verdict and judgment against Julia. Justice Wash made no radical arguments; he did not argue that the court’s earlier cases should be overruled.

In a nutshell, Justice Wash simply asserted that intent was an essential element of residence. Particularly since the determination of residence was a fact-intensive one, the jury did not act unreasonably in concluding that Mrs. Carrington had not intended Julia to establish residence in Illinois and that Julia did not establish residence there. Here is a taste:

“A bare removal into the State can form no ground on which to set up the claim; especially when it is shown that the removal is not made with a view to residence. The intention of the owner as previously declared, is the only evidence that can exist in such a case. To hold, then, that it matters not whether the owner intends to make Illinois the residence of his slave or not, is to exclude (as it appears to me) the only evidence that can exist where the claim is founded on a bare removal to the State. The intention with which a thing is done gives color and character to almost every trans[ac]tion.”

* * *

“Thus it seems to me that the facts and circumstances in every case are to be weighed with the intention of the parties acting therein and to be charged therefore. The introduction of slavery, or the attempt to introduce it, is regarded in some sort as a criminal act, and is punished by a forfeiture of the property introduced. We must then look to the intention of the party introducing the slave, to determine the guilt and see if the spirit of the Constitution has been violated, since it is clear its letter cannot be enforced.”

This is not to say that the dissent is entirely honest. Indeed, I believe it unfairly distorts and mischaracterizes the majority. Justice McGirk did not say, for example, that an expression of intent was irrelevant. He said only that an expression of intent did not control when it was belied by the facts, which showed that Julia had resided in Illinois for that crucial month.

Julia v. McKinney III: "Yet slavery is introduced"

Justice McGirk then focused more particularly on the jury instruction to which Julia had objected. As I explained in my first post on the case, the trial court instructed “that if the jury believe . . . that . . . Julia . . . was taken into the State of Illinois by her owner without any intention on the part of such owner to make that State the residence of Julia, that the plaintiff is not entitled to recover.” (Emphasis added)

Justice McGirk might have found the instruction acceptable without too much strain. His explanation of the term residence, described in the last post, contained a strong element of intent (going into a place “with an avowed view to make that State her home”). If Mrs. Carrington’s intent established her residence in Illinois, arguably her intent could likewise establish Julia’s non-residence there. He rejected this reasoning, however.

He began by identifying the issue. “[T]he instruction assumes that if the owner did not intend to make Illinois the residence of the slave, then there is no violation of the Constitution.” But, rather than agreeing that intention alone determined residence, he noted that residence consisted of a combination of intention and act – and act was the more important element. To explain himself, he asked a rhetorical question: “Is it true that if a person says he does not intend to do an act and yet does it, that the act is not done?”

Mrs. Carrington’s actions, he held, established Julia’s residence in Illinois. Furthermore, it was irrelevant that the residence was only for one month; even temporary residence was sufficient to violate the Illinois constitution:

“[I]n this case the evidence is, that the owner did intend and in fact did introduce slavery in Illinois, but declared that she did not intend to continue it for any length of time; but that she would take the slave to Missouri and there hire her out. But suppose the owner did not intend to make Illinois the place of the slave’s residence permanently, but only for one month; yet slavery is introduced and continued for the mere convenience of the owner without any circumstances which raise a just or even a reasonable exception in her favor.”

Similarly, Justice McGirk found no de minimis exception in the fact that Mrs. Carrington had hired Julia out in Illinois for only one or two days. “What difference can it make if the hiring had been for one hundred days? We can see none, except in the degree or quantity of time.”

The jury instructions were defective, and a new trial was required:

“The reason assigned for the new trial are, that the verdict is against law and evidence. The evidence is sufficient to bring the case within the operation of the Constitution. The judgment is reversed, the cause is remanded for a new trial.”