Monday, March 05, 2007

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.

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