Tuesday, February 06, 2007

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.”

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