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.