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.”
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“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.
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.”
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“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.
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