Handwriten Opinion of J. Gamble (dissenting)

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“Handwriten Opinion of J. Gamble (dissenting)”. Second Appeal to the Supreme Court of the State of Missouri, 1850-1852, 1852, St. Louis Circuit Court Historical Records Project, accessed October 3, 2026, https://digitalexhibits.library.washu.edu/s/ccr/item/109365

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Filing Name: Handwriten Opinion of J. Gamble (dissenting)
Date: 1852-03-22
Court Term: March Term 1852
Is Part Of: Second Appeal to the Supreme Court of the State of Missouri, 1850-1852
Identifier: dre1852.0000.153
Case ID: ccr1850.0000.011
Source: Missouri State Archives - Supreme Court of Missouri Historical Records
Rights: Public Domain
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Transcription: **Item Page 1**

> Image file: MSA-B161F17b.27.jpg
> Document: Handwriten Opinion of J. Gamble (dissenting)

Dred Scott, Deft. in Error
vs. ;
Irene Emerson admr. Plff. in Error.

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 ~~present~~ 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 laws of the country in which he
dwelt.

In the early English law, when there existed
a species of slavery known as villenage, 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 free
man, 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 Littleton, as by the commentary
of Lord Coke 1 Inst. 137 a & b. By the Spanish
law 1 Partedas 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, authorise
his emancipation even against the will of his
master. In Justinian's Institutes lib. 1. Tit. 5 Sec 1. it is

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> Document: Handwriten Opinion of J. Gamble (dissenting)

declared that "manumission is effected in various ways,
" either in the face of the church according to the imperial
" constitutions, ~~or by the vindicta~~ 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 slave-holding state in this 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 ~~others of ~~ the
slave-holding 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 Missouri,
should emancipate them by will executed
and proved according to our laws, and the slaves thus e
mancipated, 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

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> Document: Handwriten Opinion of J. Gamble (dissenting)

to freedom by such change of residence. Decisions
of Courts might be cited upon 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 to real
estate ^ situated ^ in our State according to our own law.

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 interests and
institutions by their own municipal laws,
except so far as the constitution of the United
States ~~xxx~~ 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 United States 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 ^ justify ^ excluding
this institution. It must be borne 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 offence to any of the
other States, as if its decision was in favor
of admitting it. As citizens of a slave-holding

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> Document: Handwriten Opinion of J. Gamble (dissenting)

state we have no right to complain if our neighbors
of Illinois, because they introduced into their
state constitution a prohibition of slavery. Nor
has any citizen of Missouri who removes with
his slave to Illinois, a right to complain that
the fundamental laws of the State to which
he removes, and in which he ^ makes his ^ residence, dissolve
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 slave-
holding 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 ~~xxx~~ 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 ~~xxx~~
^ 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

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> Document: Handwriten Opinion of J. Gamble (dissenting)

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 ~~of law~~ 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 ~~servitude~~ 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 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
Africa, 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 ~~should~~ will be produced by this course
of conduct is greatly to be apprehended. But in
the midst of all such excitement it is proper

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> Document: Handwriten Opinion of J. Gamble (dissenting)

that the judicial mind, calm and self balanced,
should adhere to principles established when
there was no ~~xxx~~ 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, ~~that~~ 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, Winny
vs. Whitesides 1 Mo. R. 473. LeGrange vs. Chouteau
2 Mo. R 20 Milley vs. Smith Ibid. 36 Ralph vs.
Duncan 3 Mo R 194 Julia vs. McKinney Ibid 270
Nat vs. Ruddle Ibid 400. Rachael vs. Walker
4 Mo R 350 Wilson vs. 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 Winny vs. Whitesides
the question was made in the argument "Whether
one nation would execute the penal laws of
another" and the Court replied in this language
"Haberus quoted in 4 Dallas 375 says,
" personal rights or disabilities, obtained or
" comunicated by the laws of any particular place,
" are of a nature which accompany the person
" where ver 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. <u>An adjudication on these
" rights in the country where they accrue, may
" be evidence of them, but cannot give them.</u>

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> Document: Handwriten Opinion of J. Gamble (dissenting)

" We are clearly of opinion, that if by a residence
" in Illinois the plaintiff in error lost her right
" to the property in defendant, that right was not
" revived by a removal of the parties to Missouri"

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 Missouri so far from
standing alone on this question, is supported
by the decisions of the other slave states, including
those in which it may be supposed
there was the least disposition to favor emancipation.
In Lunsford vs. Coquillon 2 Martin
N.S. 401 the Supreme Court of Louisiana held
that the removal of a slave by his master from
Kentucky to Ohio with intention to reside there,
ipso facto emancipates the slave. The same
court in Marie Louise vs. Marat and others 9 L.R
475 and in Smith vs. Smith 13 L.R 441 holds
"That the fact of a slave being taken by the owners,
to the Kingdom of France or other country
where slavery is not tolerated, operates upon the
condition of the slave and produces ~~xxx~~
immediate emancipation. See also Thomas
vs. Generis 16 L.R 483 Josephine vs. Poultney 1 Annual
R 329. The current of judicial authority in
330. that State was so uniform that in 1846 an act
331. was passed by the legislature which declared,
332. that residence in a country where slavery is
333. prohibited shall not entitle the slave to freedom.
334. Upon this statute the Supreme Court in Eugenie

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> Document: Handwriten Opinion of J. Gamble (dissenting)

vs. Percival 2 Annual R 180 ~~remark~~ remarks, that
it settles the law upon the subject upon the principles
laid down by Lord Stowell in the case
of the Slave Grace 2 Haggard, Admiralty R 94.

In Harry & others vs. Decker & Hopkins, Walker R
36, the Supreme Court of Mississippi 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 North West
territory became free by the ordinance of 1787,
and may assert their rights in the courts of
Mississippi.

In Griffith vs. Fanny Gilmer R 143 the Court
of Appeals of Virginia ^ held ^ that a negro held in
servitude in Ohio, was entitled to freedom under
the constitution of Ohio.

Judge Mills, in delivering the opinion of the
Court of Appeals of Kentucky in Rankin vs.
Lydia 2 A.K Marsh 468, maintained the
right of a negro to freedom by reason of a
residence in Indiana, 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 Kentucky. The opinion
is one of ability, and maintains the right of the
negro to assert her claim to freedom in the
courts of Kentucky, although there was no
actual enjoyment of freedom in Indiana.
See also Bush's Reps vs. White & 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

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> Document: Handwriten Opinion of J. Gamble (dissenting)

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

It may be observed ~~as a position~~ ^ 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 laws of another State,
or country, it may be enforced by action in the
courts of a slave holding 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 ~~the~~ 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 any ~~the~~ thing peculiar in the manner
in which the slave was held in the free country,
by reason of his master being an officer of the
United States army, it is sufficient to answer
that this Court in Rachael vs. Walker 4 Mo R 350
considered the effect of that circumstance, and
decided that such officers were not authorised
any more than private individuals, to hold

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> Document: Handwriten Opinion of J. Gamble (dissenting)

slaves either in the North West Territory, or in the
Territory ^ west of the Mississippi and ^ north of thirty six degrees, thirty minutes
~~and We~~ north latitude. The act of Congress called
the Missouri Compromise was in that case held
as operative as the ordinance of 1787.

In very many of the cases

H. R. Gamble

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137

Dred Scott
vs
Irene Emerson

Opinion

Gambele, Justice

Item sets: Dred Scott Collection; Second Appeal to the Supreme Court of the State of Missouri, 1850-1852