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.”
“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.”
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