Scott v. Emerson II: A Soldier and A Slave

The facts, as the Supreme Court of Missouri understood them, were simple.

Dr. John Emerson was a surgeon in the U.S. Army. From 1834 until April or May 1936, Emerson "was stationed at Rock Island, a military post in the State of Illinois." After that, Emerson was stationed until 1838 "at Fort Snelling, also a military post in the territory of the United States" "ceded to by France to the United States, under the name of Louisiana, which lies north of 36 degrees 30 minutes, north latitude, not included within the limits of the State of Missouri." Dred Scott was Emerson's slave, and Emerson "held him in servitude" in both locations.

Years later, Scott brought suit for his freedom in the St. Louis Circuit Court. Because Emerson had died, Scott named as defendant Irene Emerson, Dr. Emerson's wife and administratrix.

At trial, the Circuit Court instructed the jury, "in effect, that if such were the facts, they would find for Scott. He accordingly obtained a verdict. The defendant moved for a new trial on the ground of misdirection by the court, which being denied to her, she sued out this writ of error."

It is worth recalling that we have run into a virtually identical scenario before. In Rachael v. Walker (1836), the slaveowner was a soldier posted to Fort Snelling (near Minneapolis). Sixteen years earlier, the Supreme Court of Missouri held that Rachael's servitude there entitled her to be free.

Slave Freedom Suits in Missouri: A Review

I have now discussed six cases decided by the Supreme Court of Missouri between 1824 and 1836: Winny v. Whitesides (1824); Merry v. Tiffin (1827); Milly v. Smith (1829); Julia v. McKinnney (1833); Nat v. Ruddle (1834); and Rachael v. Walker (1836). In each, the issue was whether Missouri courts should award a slave his or freedom because that slave had, at some point in the past, resided in a free state or territory.

The cases are remarkable. In each, the Supreme Court held that Missouri courts should apply the law of the free state or territory if the slave had resided there. Although the court drew the line at truly transitory presence, the court interpreted “residence” broadly. Although it characterized a master’s loss of his slave as a “forfeiture,” it repeatedly rejected attempts by slaveholders to narrow the definition of residence in lawyerly ways that would probably not have raised many eyebrows. To the contrary, the court expressed its frustration with slaveholders continued to contest what the court regarded as well-settled legal precedent.

The cases also suggest that the slaveholder litigants were not the only people unhappy with the court’s rulings. In rendering its decisions, the court was repeatedly forced to reverse jury instructions given by the state Circuit Court in St. Louis. Trial judges seem to have been sympathetic to slaveholder concerns and were interpreting the Supreme Court’s precedents to avoid or at least reduce their impact on slaveholders.

Finally, and perhaps most worthy of note, is what the cases do not say. There is no indication that even slaveholders were arguing that Missouri courts should not give some effect to the laws of the free states and territories. There is no suggestion that even slaveholders were contending that Missouri should simply apply its own law and ignore the law of other states and territories. Such contentions were apparently too outlandish for even determined slaveholders to make in the 1820s and 1830s.

I’m sure that you know where I am going by now. In the early 1850s, all this will change. In installments to follow, I will discuss the Supreme Court of Missouri’s decision in Scott v. Emerson, 15 Mo. 576, 1852 WL 4171 (1852). The United States Supreme Court’s later decision in Scott v. Sandford, 60 U.S. 393 (1857), is far more famous (or infamous); but it is the decision of the Supreme Court of Missouri – reversing almost thirty years of state law – that made the later decision necessary – and possible.

Rachael v. Walker III: Justice McGirk Becomes Annoyed

As you may recall, the attorney for Walker, Rachael’s owner, claimed that Rachael’s stays at Fort Snelling (now in Minnesota) and Prairie du Chien, Michigan, did not make her free due to “necessity” – Stockton, Rachael’s owner at the time, was an officer in the U.S. Army and was posted to those sites.

Justice Matthias McGirk of the Supreme Court of Missouri expressed annoyance verging on disgust with the repeated attempts of slaveowners to avoid what he regarded as well-settled law. “It seems that the ingenuity of counsel and the interest of those disposed to deal in slave property, will never admit anything to be settled in regard to this question.” He therefore found it necessary “to state again the principles on which this court has heretofore rested in the many decisions heretofore made in regard to this ordinance.” He then reviewed some of those cases, including Winny v. Whitesides (1824) and Julia v. McKinney (1833).

The court then laced into Walker’s defense, denying that “necessity” required Stockton to bring a slave into free territory:

“In that case [Julia v. McKinney], the court say there should be something like necessity existing, to justify the owner of a slave to keep such slave in the country, so as to save a forfeiture. The counsel [for Walker] insist on a necessity as regards the owner to stay and abide in the Missouri territory and Michigan for more than two years, and during all that time to keep the plaintiff there as a slave. It is said the officer was under orders from the government to remain there where he did, and therefore a necessity existed which brings him within the reason of the decision in Julia’s case. This plea of necessity, is well answered by Mr. Spalding for the plaintiff, which answer is, that though it be true that the officer was bound to remain where he did, during all the time he was there, yet no authority of law or the government compelled him to keep the plaintiff there as a slave.”

Justice McGirk then provided a hypothetical that amounted to a reductio ad absurdum:

“[S]hall it be said, that because an officer of the army owns slaves in Virginia, that when as officer and soldier, he is required to take command of a post in the non-slave holding States or territories, he thereby has a right to take with him as many slaves, as will suit his interests and convenience? It surely cannot be the law; if this be true, then it is also true that the convenience or supposed convenience of the officer repeals as to him and others who have the same character, the ordinance and the act of 1821 admitting Missouri into the Union, and also the prohibitions of the several laws and constitutions of the non-slaveholding states.”

He also dismissed the argument that there should be no forfeiture because Stockton’s slaveownership (if that’s a word!) was de minimis:

“But it is said . . . that the plaintiff was only employed as a body servant, to induce the belief of the fact that the service she performed was necessary, or perhaps to establish the fact that he officer has a right to a family servant. We are yet to learn that the law, which gives to officers servants of a certain sort, authorize such officers to hold slaves in lieu of such servants, and in places forbidden by the ordinance.”

The bottom line, according to Justice McGirk, was that Stockton held Rachael as a slave in free territory as “his voluntary act, done without any other reason than that of convenience,” not necessity. As a result, both Stockton “and those claiming under him must be holden to abide the consquences of introducing slavery both in Missouri territory and Michigan, contrary to law. The judgment of the Circuit Court is reversed – the cause is remanded for a new trial.”

Rachael v. Walker II: The Arguments

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.”

Rachael v. Walker: An Officer and A Slave

Rachael (not a misspelling), the plaintiff in Rachael v. Walker, 4 Mo. 350, 1836 WL 2300 (1836), was a slave in Missouri. In 1830, an agent purchased Rachael for J.B.W. Stockton and in the fall of that year took her to Fort Snelling, “on the west side of the Mississippi river, and north of the State of Missouri, and in the territory of the United States,” in what is now the State of Minnesota. Stockton “was an officer of the United States army attached to the troops” at Fort Snelling. He had been posted there for about two years (i.e., since about 1828). He apparently purchased Rachael because he had just married.

Stockton “held [Rachael] as a slave [there] until the fall of the year 1831” – about a year. At that point, he was transferred to Prairie du Chien, “in the Michigan territory and east of the Mississippi." Stockton took “Rachael with him as his slave, at which place he held her in slavery, till about the spring of the year 1834, when he took her to St. Louis and sold her.”

At both Fort Snelling and Prairie du Chien, “Rachael was only employed in attendance on Stockton and his family.” Although Stockton was an officer in the army, “Rachael was never employed otherwise than as a private servant in immediate attendance on Stockton and family.”

Rachael filed a suit to obtain her freedom in Missouri state circuit court. The defendant, Walker, argued that Stockton’s presence at Fort Snelling and Prairie du Chien should not be counted as residence there because he had been in the army. The Circuit Court judge agreed and

“instructed the jury that the law was, that if said Stockton was an officer of the army while he held the plaintiff in slavery, stationed at Fort Snelling and Fort Crawford by the property authority, and if he employed the plaintiff during that time only in personal attendance on himself and family, that such residence of the plaintiff as has been proved, does not entitle her to freedom.”

The jury returned a verdict in favor of Walker and against Rachael. Rachael appealed to the Supreme Court of Missouri.