Wilson v. Melvin II: "They Must Have Been Very Incredulous Indeed"

Justice George Tompkins, whom we have encountered before, wrote the decision for the unanimous Supreme Court of Missouri. After describing the facts, Justice Tompkins discussed the court's earlier decisions, focusing particularly on Julia v. McKinney. I have reviewed Julia at length in earlier posts. Based on his review, Justice Tomkins reaffirmed the general rule that a slave did not become free merely by "traveling" through a free state or territory with his master. However, he gave traveling a restrictive definition. It required continual movement with only "necessary" stops:

"[Traveling] should last so long as might be necessary according to the common modes of traveling, to accomplish [the slaveholder's] journey through the State. If accident should happen to the emigrant, which, in ordinary cases, would make it reasonable and prudent to suspend his journey a short time, we think he might do so without incurring a forfeiture [i.e., loss of his slave], if he resumes his journey as soon as he safely could. Something more than mere convenience, or ease of the emigrant, ought to intervene to save him from a forfeiture. Something of the nature of necessity should exist before he would, or ought, to be exempted from the forfeiture."

So measured, Justice Tompkins held, the jury instructions were "wrong." In effect, Justice Tompkins held that it was irrelevant whether Melvin had used Wilson as a slave in Illinois. It was also irrelevant that Melvin had kept his wagon loaded. The sole question was whether Melvin "made any unnecessary delay in Illinois."

Justice Tompkins's observations about the case make clear that his decision was based on no mere technicality. He was angry that the trial judge had given "misleading" instructions, and he did not believe that any reasonable jury could rule against Wilson. He came close to saying in so many words that he believed that Melvin's defense -- that he had not intended to reside in Illinois -- was a lie that no one could believe:

"[B]ut it being proved that he [Melvin] stayed there [in Illinois] for three or four weeks before he went to St. Louis, and that, in a very short time, he returned and made a crop of corn, and remained in the State to gather and sell it. If they [the jury] believed that the defendant did this, without any intention of domiciliating himself therein, they must have been very incredulous indeed. So that even admitting that it was in evidence, that the defendant had, when he left home, meditated a journey through Illinois to Missouri, it appears that the jury ought, in conformity with this instruction, to have found for the plaintiff. Because, then, all the instructions given by the court appear to me to be calculated to mislead a jury."

The court therefore reversed the judgment against Wilson and remanded for a new trial "to be proceeded in conformably [sic] to this opinion."

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 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.”

Julia v. McKinney IV: The Dissent

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.”

* * *

“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.

Julia v. McKinney III: "Yet slavery is introduced"

Justice McGirk then focused more particularly on the jury instruction to which Julia had objected. As I explained in my first post on the case, the trial court instructed “that if the jury believe . . . that . . . Julia . . . was taken into the State of Illinois by her owner without any intention on the part of such owner to make that State the residence of Julia, that the plaintiff is not entitled to recover.” (Emphasis added)

Justice McGirk might have found the instruction acceptable without too much strain. His explanation of the term residence, described in the last post, contained a strong element of intent (going into a place “with an avowed view to make that State her home”). If Mrs. Carrington’s intent established her residence in Illinois, arguably her intent could likewise establish Julia’s non-residence there. He rejected this reasoning, however.

He began by identifying the issue. “[T]he instruction assumes that if the owner did not intend to make Illinois the residence of the slave, then there is no violation of the Constitution.” But, rather than agreeing that intention alone determined residence, he noted that residence consisted of a combination of intention and act – and act was the more important element. To explain himself, he asked a rhetorical question: “Is it true that if a person says he does not intend to do an act and yet does it, that the act is not done?”

Mrs. Carrington’s actions, he held, established Julia’s residence in Illinois. Furthermore, it was irrelevant that the residence was only for one month; even temporary residence was sufficient to violate the Illinois constitution:

“[I]n this case the evidence is, that the owner did intend and in fact did introduce slavery in Illinois, but declared that she did not intend to continue it for any length of time; but that she would take the slave to Missouri and there hire her out. But suppose the owner did not intend to make Illinois the place of the slave’s residence permanently, but only for one month; yet slavery is introduced and continued for the mere convenience of the owner without any circumstances which raise a just or even a reasonable exception in her favor.”

Similarly, Justice McGirk found no de minimis exception in the fact that Mrs. Carrington had hired Julia out in Illinois for only one or two days. “What difference can it make if the hiring had been for one hundred days? We can see none, except in the degree or quantity of time.”

The jury instructions were defective, and a new trial was required:

“The reason assigned for the new trial are, that the verdict is against law and evidence. The evidence is sufficient to bring the case within the operation of the Constitution. The judgment is reversed, the cause is remanded for a new trial.”

Julia v. McKinney II: The Right to Travel

Once again, Chief Justice Matthias McGirk wrote the decision for the majority (the court divided 2-1, with Justice Wash dissenting). Justice McGirk began his analysis by examining the Illinois constitutional provision upon which Julia relied. As I explained in my first post on the case, that provision declared that slavery would not be introduced into the state and concluded “by saying any violation of this article shall effect the emancipation of such person.” McKinney’s attorney apparently advanced species of reductio ad absurdum argument: if the Illinois constitution were literally construed, “no one can travel through that State with his slaves without emancipating them.”

Justice Matthias McGirk agreed “that a literal construction would lead directly to this result.” He denied, however, that the Illinois constitution should be read so mechanically. He advanced two reasons. First, looking to “the end and object” of the provision, he concluded that its purpose was not to prevent slaveowners “from passing through Illinois with their slave property,” but rather “to prevent the relation of master and slave from existing in that State by an inhabitant and resident thereof.”

Second, the conclusion about the section’s purpose and intent was buttressed by the fact that a literal reading would violate what we would call today the right to travel, which Justice McGirk derived from the Privileges and Immunities Clause:

“[A]ll persons who are citizens of any of the States have a right by the constitution of the United States to pass through Illinois with any sort of property that they may own in the State where they migrate from. The 2d section of the 4th article of the Constitution of the United States says that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. We are of opinion that it is the undoubted right of every citizen of the United States to pass freely through every other State with his property of every description, including negro slaves, without being in any way subject to forfeit his property for having done so, provided he does not subject his property by a residence to the action of the laws of the State in which he may so reside.”

Justice McGirk thus drew a sharp line between “emigrants or mere travelers” and residents. The difference between the two was fact-sensitive but ultimately clear. A traveler was on a journey. Mrs. Carrington was no traveler:

“In the case before us the owner of the slave was not an emigrant, but went into Illinois with an avowed view to make that State her home. She took up her residence there, with her slave in her possession, and kept the slave there for upwards of one month, and treated the slave in all respects as slaves are treated in States where slavery is allowed. These acts of the owner surely amounted to the introduction of slavery in Illinois.”

Julia v. McKinney I: An Owner's Plan to Thwart Freedom

In Julia v. McKinney, 3 Mo. 270, 1833 WL 3254 (1833), the Supreme Court of Missouri once again confronted the issue whether it should declare a slave free based upon the laws of a free territory or state. The court reaffirmed its holdings in Winny v. Whitesides (1824), Merry v. Tiffin (1827) and Milly v. Smith (1829), in which it held that a slave who resided in a free territory or state should be declared free based upon foreign law. Julia is particularly noteworthy because the court pointedly rejected an opportunity to limit its earlier decisions in a way that would have been legally plausible and highly advantageous to slaveholders.

Lucinda Carrington, the owner of a slave named Julia, lived in Kentucky. When Mrs. Carrington announced in 1829 that she intended to move to Illinois with Julia, a neighbor warned her “that if she took [Julia] there she would be free.” The Illinois Constitution contained a provision “which declares that neither slavery nor involuntary servitude shall hereafter be introduced into this State otherwise than for the punishment of crimes . . . and concludes by saying any violation of this article shall effect the emancipation of such person for his obligation to service.”

Determined nonetheless to move to Illinois, Mrs. Carrington then established a plan to evade the constitutional provision. She arrived in Pike County, Illinois on October 27 or 28, 1829 with Julia and settled herself there. But she asserted that she did not intend to keep Julia in Illinois, but instead to hire her out in Missouri. For a little over a month, until December 1, 1829, Julia stayed with Mrs. Carrington. During that month, Mrs. Carrington “exercise[ed] the ordinary acts of ownership and dominion over [Julia] which are usually exercised by masters over their slaves.” Mrs. Carrington also hired Julia out in Illinois for “about two days.”

On about December 1, 1829, Mrs. Carrington “sent Julia to Louisiana, Missouri, a distance of about thirty miles, and hired her out” there. Julia became sick, and Mrs. Carrington had her return to Pike County, Illinois. When Julia recovered, Mrs. Carrington sent her to St. Louis, where she was sold to S. McKinney.

Julia sued for her freedom in the Circuit Court of St. Louis County, naming Mr. McKinney, her new owner, as the defendant. She contended that Mrs. Carrington and she had resided in Illinois between October 27 or 28 and December 1, 1829. At trial, however, the Circuit Court gave the jury an instruction, unfavorable to Julia, that focused on Mrs. Carrington’s intent, rather than her actions. The trial court instructed the jury that, if it believed that Julia “was taken into the State of Illinois by her owner without any intention on the part of such owner to make that State the residence of Julia, that the plaintiff is not entitled to recover in this action.”

The jury returned a verdict against Julia, and the Circuit Court entered judgment against her. Julia then appealed to the Supreme Court of Missouri.

In the next post, we shall examine how the court analyzed and resolved the issues.