Rachael v. Walker

• Decision Date: 30 June 1836
• Citation: Rachael v. Walker, 4 Mo. 350 (Mo. 1836)
• Parties: RACHAEL, A WOMAN OF COLOR, v. WALKER.
• Court: Missouri Supreme Court

4 Mo. 350

RACHAEL, A WOMAN OF COLOR,

v.WALKER.

Supreme Court of Missouri.

June Term, 1836.

J. SPALDING, for Appellant. Rachael is free. See act of Congress of March 6th, 1820; Story's U. S. Laws, p. 1762, § 3, which forbids slavery north of 36 degrees, 30 minutes; also the ordinance of 1787, for government of territory northwest of Ohio--1 vol. L. U. S. 475. Winny v. Whitesides, 1 Mo. Rep. 472; Nat v. Ruddle 3 Mo. R. 400 and Julia v. McKinney, 3 Mo. R. 270; as to the child; Merry v. Tiffin and Menard, 1 Mo. R. 725.

H. R. GAMBLE, for Defendant. It is admitted that the residence was such that in ordinary cases, would under the decisions of this court, entitle the plaintiff to her freedom--but in this case, she was taken to that territory, as the servant of an officer of the United States' army, and was never otherwise employed there, than as the servant of that officer. The question then is, whether an officer of the army, who can never acquire a domicil, in any other than the State of which he was an inhabitant, when appointed, can take with him, wheresover he may be ordered, such property as he may possess. The fact that the officer here bought the negro after he has been ordered to the Northwest territory, does not make the case stronger, for the slave then if she had been his when he was first ordered there since the law that emancipates applies to the residence of the slave and the character of that residence.

MCGIRK, J.

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 plaintiff was purchased for said Stockton, and was by the witness taken up to him to Fort Snelling at St. Peters, in the same fall. That there said Stockton held her as a slave till the fall of the year 1831, when he removed to Prairie du Chien, taking the said Rachael with him as his slave, at which place he held her in slavery, till about the spring of the year 1834, when he took her to St. Louis and sold her. That Fort Snelling is on the west side of the Mississippi river, and north of the State of Missouri, and in the territory of the United States. That said Stockton before he bought said Rachael, had resided at Fort Snelling about two years, and was still residing there when he bought the plaintiff, having just married. That Stockton while he resided at Fort Snelling was an officer of the United States army attached to the troops there; that while Stockton was at Prairie du Chien, he was also an officer in the service of the United States army; that Prairie du Chien is in the Michigan territory and east of the Mississippi. That Rachael was only employed in attendance on Stockton and his family. It appeared also, that Rachael was never employed otherwise than as a private servant in immediate attendance on Stockton and family, and all the time Stockton held her as aforesaid, he was in the service as an officer of the army. It also appeared that Walker, the defendant, held her under Stockton. Upon this state of evidence the Circuit Court instructed the jury that the law was, that if said Stockton was an officer of the army while he held the plaintiff in slavery, stationed at Fort Snelling and Fort Crawford by the proper authority, and if he employed the plaintiff during that time only in personal attendance on himself and family, that such residence of the plaintiff as has been proved, does not entitle her to freedom; this opinion was excepted to; motions were made for a new trial for misinstruction, which were overruled.

To sustain this judgment, Mr. Gamble contends that all the cases heretofore decided, proceed on the ground that a residence in the northwest 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 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 necessarily staid with his slave, shall not be considered as a residence, so as to work a loss of the slave. 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 take this to have his servant there also.

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...