Julia v. Samuel M. Kinney
View original image: Page  079
[missing figure]

I think the Circuit CourtCircuit Court erred in giving the 3rd instruction - assuming to decide the facts
as well as the law of the case; & therefore concur in reversing the Judgment - The 1st & 2nd
instructions were in my opinion properly given. The claim to freedom under the provisions
of the IllinoisIllinois Constitution must be founded either upon a residence of the Slave, or a hiring
of the slave to labor what shall amount to a residence or a hiring against the provisions
of the constitution must depend upon the facts & circumstances of each particular case.
A bare removal into the State can form no ground on which to set up the claim: Es-
pecially when it is [ shewn ] 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 IllinoisIllinois
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 & character to almost every transaction, the emigrant who
journeying to MissouriMissouri unfortunately gets his leg broken, or being detained by serious
sickness keeps his slaves with him in IllinoisIllinois for weeks or months until he recovers
sufficiently to resume his Journey will not thereby forfeit his property in his slaves, and
why ? because his residence for a week a month or a winter was unintentional and
accidental & the slaves were detained there without any intention of his part of making
it the place of their residence so the owner of a slave who in passing through IllinoisIllinois
permits the slave at night to brush his landlord's boots, or make his fire, or shuck his corn
for such reward as the landlord may think proper to give would not surely be adjudged
to forfeit his slave under the provisions of the 2nd sec of the 10th Article of the Constitution
and why ? because the owner did not intend in taking his slave to IllinoisIllinois or in Jour
-neying through, or sojourning in the State to hire him to labor - for it will not be contended
that the master did not intend that the slave should perform the particular service &
receive therefor the Stipulated reward; that is brush the boots or make the fire &