4 Mo. 350 | Mo. | 1836
Opinion delivered by
Rachael the plaintiff in error, brought an action according to the statute for freedom, the defendant Walker pleaded not guilty and a verdict and judgment were given for the defendant. It appears by the record, that in the fall of the year 1830, E. T. Langham, then residing in the Missouri territory, at or near the mouth of the St. Peters, came to St. Louis; and that one J. B. W. Stockton then sent by witness to Major Brant of St. Louis to purchase a slave; that the plain tiff was purchased for said Stockton, and was by the witness taken up to him to Fort
To sustain this judgment, Mr. Gamble contends that all the cases heretofore decided, proceed on the ground that a residence in the N. W. territory, was contrary to the ordinance of 1787, and amounted to a forfeiture of the property of the owner of a slave, for a violation of the ordinance, and that by all the decisions made by this court exceptions are allowed to exist, which exceptions to the positive words of the ordinance, 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 he necessarily staid with his slave, shall not be considered as a residence, so as to work a loss
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 take this person there as a slave nor as a servant.
Having stated the substance of the arguments on both sides, we will proceed to lay down the law as we understand it. It may not be unprofitable to state again, the principles on which this court has heretofore rested in the many decisions heretofore made in regard ■ to this ordinance. It seems that the ingenuity of counsel and the interest of those disposed to deal in slave property, will never admit any thing to be settled m regard to this question. The ordinance of 1787, for the government of the north western territory, declares that neither slavery nor involuntary servitude shall exist in the same. The first case decided by this court was that of Winney v. White-side; the facts of that case were, that after the making the ordinance, Weiteside, the owner of Winney, removed from N. Carolina to Illinois, and brought with him Win-ney, and resided there three or four years, and left there and removed to Missouri, and took with him the slave; in that case the court declared that such residence, by force of the ordinance, manumitted the slave. In that case, the court say that the person who takes his slave into-said territory, and by length of residence there, indicates an intention of making that place his residence, and the residence of his slave also, and thereby induces a jury to believe that fact also, by such residence declares his slave free.
And the court say in the case of Lagrang v. Menard that the court will raise other exceptions than those expressed in the ordinance; the case of Lagrang was one where the owner lived in Illinois and had his slave employed in Missouri, and the slave made occasional visits to his master’s house in Illinois, the court declared this did not work an emancipation.
The case of Julia v. McKinney, decided by this court in 1833, goes further in detail, as to the exception which necessity may create, than any other. — 3 vol. M. R. 270.
In the case of Julia, many cases are put to show that an owner of a slave might remain in the country for a considerable length of time, without working a forfeiture of his right to the slave. The-court say in that case, 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 resume his journey as soon as may be. Something more than the mere convenience or ease of the emigrant ought to intervene to save him from the forfeiture; something of the nature of necessity, should or ought to exist, before he ought to be exempt; if swollen streams of water, which could not be crossed without danger; serious sickness of the family; broken waggons and the like — these things, if they exist, would be good causes of delay, if the journey be resumed as soon as they are removed.
It may be that the language contained in this case, has induced the defendant, claiming under Stockton, to expect and hope his case would come within the words of the opinion, if not within its reason.
In that case, 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 insist on a necessity as regards the owner to st ay and abide in the Missouri territory and Michigan for
It is said the officer was under orders from the govern-men t to remain where he did, and therefore a necessity existed which brings him within the reason of the decis-
This plea of necessity, is well answered by Mr. Spal-ding for plaintiff, which answer is, that though it be 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. This answer is complete as we think; shall 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 or con-I_venience? 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 slave holding States. But it is said in this case 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 the 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, authorise such officers to hold slaves in lieu of such servants, and in places forbidden by the ordinance. In this case the officer lived in the. Missouri territory at the time he bought the slave,, he sent to a slave holding country and procured her, this was his voluntary act, done without,any other.reason than that of convenience, and he and those claiming under him must be hol-den to abide the consequence 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 anew trial.