Saturday, February 03, 2007

Merry v. Tiffin II: "This man was not property"

Before the Supreme Court of Missouri, John’s owners, Tiffin and Menard (they are not otherwise identified), asserted that the court should not follow Winny. First, they suggested that the case was factually distinguishable: John was born in the Northwest Territory of a slave mother who had been brought there before the passage of the Northwest Ordinance in 1787; Winny, in contrast, had been brought to the Northwest Territory after passage of the Ordinance.

This was significant, they argued, because both the act of cession of Virginia, which ceded the Territory to the Confederation, and the Ordinance itself, provided that the inhabitants of the Territory would be protected in the enjoyment of their rights, liberties and property. The court should, therefore, read Article 6 of the Ordinance to exclude slaves brought into the Territory before 1787, and their descendants -- basically, they argued that preexisting slaves and their issue should be "grandfathered," as we would say today. The court phrased their argument as follows:

“[C]ounsel . . . [contend] that although the words [of Article 6] are clear enough in themselves, yet, that when we look to the cession act of Virginia, and the whole of the ordinance, that there is much room to doubt if these general, positive words, ought not to be understood as to admit those who were slaves in that country, at the adoption of the ordinance, and their descendants, to continue so; because the ordinance says, in another place, that the inhabitants shall be protected in the just preservation of their rights and property, and that by the act of cession of Virginia, it is stipulated, that the inhabitants shall be protected in the enjoyment of their rights and liberties . . ..”

Justice McGirk was having none of it. He tersely rejected the argument, reaffirmed the decision in Winny, and reversed the judgment of the Circuit Court in a single paragraph:

“The whole of these instruments [the Ordinance and Virginia cession], taken together, are unable to create any doubt in our minds, as to the meaning of the 6th article of the ordinance. The express words in the cession act of Virginia, that the inhabitants shall be protected in the enjoyment of their rights and liberties, are completely satisfied, by securing to them the enjoyment of such rights as they then happen to be. Property should be so throughout all future time. This man was not then born, and when he was born into existence, the law forbid slavery to exist; and at the time of the making the cession act, this man, John, was not property; and at the time of his birth, he could not be property. There is nothing in the cession act, forbidding Congress to fix and point out things which might afterwards be the subject of property. According to this view of the subject, John is free. [Here the court cited Winny.] The judgment is reversed with costs, and sent back to the Circuit Court for a new trial.”

Thus twice within three years, the Supreme Court of Missouri applied the law of the Northwest Territory to hold that a slave who had resided there, but who now resided in Missouri, was free.

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