Harriet Scott vs. Irene Emerson
Gamble , J., dissenting opinion.

As I am constrained to depart from the opinion given by a majority of the court, the questions involved in the case and the present condition of feeling in the country, seem to require that I should state the grounds of the dissent.

In all ages, and in all countries in which slavery has existed, the slave has been regarded not merely as property, but also as a being capable of acquiring and holding certain rights by the act of the master. He could acquire and enforce his right to freedom in modes recognized by the law of the country in which he dwelt.

In the early English law, where there existed a species of slavery, known as villanage, the villain might be emancipated by his lord, either directly by deed, or by implication of law, from some act of the master recognizing him as a freeman, as by making to him an obligation for a sum of money, or conveying lands to him, or by impleading him in an action. This appears, as well by the text of as by the commentary of ,
1 Just. 137 A. & B. By the Spanish law,
1 Partidas 587, the mode in which a master may emancipate his slave is prescribed; and at
page 589 certain meritorious actions are mentioned, which, when performed by a slave, authorize his emancipation, even against the will of his master. In
Justinian's Institutes, Liber. 1 Lit. 5, sec. 1, it is declared that "manumission is effected in various ways, either in the face of the church, according to the imperial constitutions,

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or in the presence of friends, or by letter, or by testament, or by any other last will. Liberty may also be conferred upon a slave by divers other methods, some of which were introduced by former laws, and others by our own."

In every slaveholding State in the Union the subject of emancipation is regulated by statute, and the forms are prescribed in which it shall be effected. Whenever the forms required by the laws of the State in which the master and slave are resident, are complied with, the emancipation is complete and the slave is free. If the right of the person thus emancipated is subsequently drawn in question in another State, it will be ascertained and determined by the law of the State in which he and his former master resided; and when it appears that such law has been complied with, the right to freedom will be fully sustained in the courts of all the slaveholding States, although the act of emancipation may not be in the form required by the laws of the State in which the court is sitting. Take, for example, an emancipation by will. If a master, residing and holding slaves in , should emancipate them by will, executed and proved, according to our laws, and the slaves thus emancipated should, in the exercise of their freedom acknowledged and enjoyed here, emigrate to another slave State, where emancipation by will was not permitted, there is no person so ignorant as to suppose that they would lose their right to freedom by such change of residence. Decisions of courts might be cited on this point, but it is not necessary to appeal to the tribunals for the maintenance of a principle so perfectly plain.

In all such cases, courts continually administer the law of the country where the right was acquired; and when that law becomes known to the court it is just as much a matter of course to decide the rights of the parties according to its requirements as it is to settle the title of real estate, situate in our State, according to our own laws.

We, here, are the citizens of one nation, composed of many different States, which are all equal and are each and all entitled to manage their own domestic institutions by their own municipal law, except so far as the constitution of the interferes with that power. The perfect equality of the different States lies at the foundation of the Union. As the institution of slavery in the States is one over which the constitution of the gives no power to the general government; it is left to be adopted or rejected by the several States, as they think best. Nor can any one State, nor any number of States, claim the right to interfere with any other State, upon the question of admitting or excluding this institution. It must be borne

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in mind, that this freedom and equality of the different States, supposes that each can, of its own will, according to its own judgment, exclude slavery, with as little cause of offense to any of the other States, as if its decision was in favor of admitting it. As citizens of a slaveholding State, we have no right to complain of our neighbors of IllinoisIllinois, because they introduce into their State constitution a prohibition of slavery; nor has any citizen of , who removes with his slave to IllinoisIllinois, a right to complain 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. It 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, has voluntarily subjected himself and his property to a law, the operation of which he was 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 that State, would be sufficient to discharge the slave from servitude, although it might not be a valid emancipation under the laws of another State.

While I merely glance at the reasons which might be urged in support of the present plaintiff's claim to freedom, if it were an original question, I do not propose to rest my dissent from the opinion given in this case, upon the original reasoning in support of the position.

I regard the question as conclusively settled, by repeated adjudications of this court, and if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them than I would any other series of decisions, by which the law upon any other question was settled. There is with me, nothing in the law relating to slavery, which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary public excitements which are gathered around it. It is, undoubtedly, a matter to be deeply regretted, that men who have no concern with the institution of slavery, should have claimed the right to interfere with the domestic relations of their neighbors, and have insisted that their ideas of philanthropy and morality should be adopted by people who are certainly capable of

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deciding upon their own duties and obligations. That the present owners of slaves, when denounced in terms that would be appropriate, if they had actually kidnapped the slaves from the coast of , or had inherited the fortunes accumulated by such iniquitous traffic, should feel exasperated by such wanton and unfounded attacks, is but natural. That alienation of feeling and, finally, settled hostility will be produced by this course of conduct, is greatly to be apprehended. But, in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend.

In this State, it has been recognized, from the beginning of the government, as a correct position in law, that a master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emancipates his slave: WinneyWinney v. WhitesidesWhitesides , 1 Mo. 472; Le Grange v. ChouteauChouteau , 2 Mo. 20; MilleyMilley v. SmithSmith , ibid. 36; RalphRalph v. DuncanDuncan , 3 Mo. 194; JuliaJulia v. McKinneyMcKinney , ibid. 270; Natt v. Ruddle , ibid. 400; RachaelRachael v. WalkerWalker , 4 Mo. 350; WilsonWilson v. Melvin , ibid. 592. These decisions, which come down to the year 1837 seem to have so fully settled the question, that since that time there has been no case bringing it before the court for any reconsideration until the present. In the case of WinneyWinney v. WhitesidesWhitesides , the question was made in the argument "whether one nation would execute the penal laws of another," and the court replied in this language: , quoted in 4 Dallas 375, says, 'personal rights or disabilities, obtained or communicated by the laws of any particular place, are of a nature which accompany the person wherever he goes. If this be the case in countries altogether independent of each other, how much more in the case of a person removing from this common territory of all the States to one of the States. An adjudication on those rights, in the country where they accrue, may be evidence of them, but cannot give them. We are clearly of opinion, that if by a residence in , the plaintiff in error lost her right to the property in defendant, that right was not revived by a removal of the parties to ."

The principle thus settled, runs through all the cases subsequently decided, for they were all cases in which the right to freedom was claimed in our courts, under a residence in a free State or territory, and where there had been no adjudication upon the right to freedom in such State or territory.

But the supreme court of MissouriMissouri, so far from standing alone on this question, is supported by the decisions of the other slave States, including

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those in which it may be supposed there was the least disposition to favor emancipation. In Lunsford v. Coquillon , 2 Martin N. S. 401, the supreme court of LouisianaLouisiana held, that the removal of a slave by his master from to , with intention to reside there, ipso facto emancipates the slave. The same court, in Marie LouiseMarie Louise v. Marot and others, 9 L. R. 475, and in SmithSmith v. SmithSmith , 13 L. R. 441, holds "that the fact of a slave being taken by the owners to the kingdom of or other country, where slavery is not tolerated, operates upon the condition of the slave and produces immediate emancipation." See, also, ThomasThomas v. Generis , L. R. 483; JosephineJosephine v. Poultney , 1 Annual R. 329. The current of judicial authority in that State was so uniform, that in 1846 an act was passed by the legislature which declared that residence in a country where slavery is prohibited shall not entitle the slave to freedom. Upon this statute, the supreme court, in Eugene v. Percival , 2 Annual R. 180, remarks that it settles the law upon the subject, upon the principles laid down by Lord StowellStowell , in the case of the slave, Grace , 2 Haggard's Admiralty R. 94.

In HarryHarry and others v. DeckerDecker and Hopkins , Walker 36, the supreme court of MississippiMississippi held, that any State may, by its constitution, prohibit slavery within its limits, and so may the legislature, when not restrained by the constitution; and that slaves within the limits of the northwest territory became free by the ordinance of 1787, and may assert their rights in the courts of .

In Griffith v. Fanny , Gilmer's R. 143, the court of appeals of VirginiaVirginia held, that a negro held in servitude in was entitled to freedom under the constitution of OhioOhio.

Judge Mills , in delivering the opinion of the court of appeals of KentuckyKentucky, in Rankin v. LydiaLydia , 2 A.K. Marsh. 467, maintained the right of a negro to freedom by reason of a residence in , and considers the question, whether the plaintiff's claim to freedom was of a penal character, because it accrued by the laws of another government, that would not be enforced in . The opinion is one of ability, and maintains the right of the negro to assert her claim to freedom in the courts of , although there was no actual enjoyment of freedom in IndianaIndiana. See, also, Bush's Reps . v. WhiteWhite and wife , 3 Monroe 104.

The cases here referred to are cases decided when the public mind was tranquil, and when the tribunals maintained in their decisions the principles which had always received the approbation of an enlightened public opinion. Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my

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judgment, there can be no safe basis for judicial decisions but in those principles which are immutable.

It may be observed, that the principle is either expressly declared or tacitly admitted in all these cases, that where a right to freedom has been acquired, under the law of another State or community, it may be enforced by action in the courts of a slaveholding State; for, in every one of these cases, the party claiming freedom had not procured any adjudication upon his right in the country where it accrued.

This very brief examination of the questions involved in this case, will show the grounds upon which I hold it to be my duty to declare, that the voluntary removal of a slave, by his master, to a State, territory or country in which slavery is prohibited, with a view to a residence there, entitles the slave to his freedom, and that that right may be asserted by action in our courts under our laws.

So far as it may be claimed in this case, that there is anything peculiar in the manner in which the slave was held in the free country, by reason of his master being an officer of the army, it is sufficient to answer that this court, in RachaelRachael v. WalkerWalker , 4 Mo. 350, considered the effect of that circumstance, and decided that such officers were not authorized, any more than private individuals, to hold slaves, either in the northwest territory or in . The act of CongressCongress , called the MissouriMissouri Compromise, was, in that case, held as operative as the ordinance of 1787. a

[appauthNote: a Affirmed, v. , 17 Mo. 434.]