The facts of Milly v. Smith, 2 Mo. 171, 1829 WL 1771 (1829), are a bit messy. David Shipman and the defendant, Smith (his first name is not stated in the opinion), were white men residing in Shelby County, Kentucky. Shipman owed money to a bank and other third parties, and Smith had guaranteed those obligations. Shipman owned a slave named Milly.
In October 1826, the two men entered into a transaction, in Shelby County, Kentucky, by which Shipman gave security to Smith in case Smith was obligated to pay Shipman’s debts. That security was Milly. There was a dispute as to whether Shipman had sold Milly to Smith, subject to (in effect) a right to redeem her if Shipman was able to pay off his debts; or whether Shipman had merely mortgaged Millie to Smith, giving Smith the right to take possession of her if he was forced to pay Shipman’s debts. In an earlier case, a court had resolved that dispute in Shipman’s favor: Shipman, not Smith, remained Milly’s owner.
Having mortgaged Milly to Smith, Shipman secretly fled with Milly and several other slaves to Jefferson County, Indiana “with intent to withdraw himself and property from Smith and other creditors.” While in Jefferson County, Shipman then proceeded to defraud Smith and his other creditors by “execut[ing] a deed of emancipation in due form of law to the said Milly” and another mortgaged slave.
Shipman then took Milly to Peoria County, Illinois, where he “hired a farm” and established residence. He resided there from November 1826 until May 1827.
Meanwhile, after Shipman had emancipated Milly in Indiana, Smith was forced to pay several of Shipman’s debts, amounting to $1,634. Smith then tracked the fleeing Shipman down. In May 1827, Smith “came there [to Shipman’s farm in Peoria County, Illinois] and took Milly secretly and against her consent, and the consent of Shipman, and brought her to St. Louis, claiming her as his slave, and holding her as his slave.”
Milly then commenced this suit for freedom in Missouri state court. In the suit, Milly seems not to have relied upon the emancipation deed that Shipman executed. Perhaps Milly’s lawyer was concerned that the court would not give effect to the emancipation deed because it was clearly a fraud on Shipman’s creditors. For that reason or some other, Milly argued instead that she should be declared free “under the ordinance of Congress of 1787, for the government of the Northwestern Territory.
The trial court ruled against Milly, who then appealed to the Supreme Court of Missouri. In his majority opinion (the court divided 2-1), Justice McGirk framed the issue as follows:
“Upon this state of facts and law, the question submitted to us is, whether Milly is by law entitled to her freedom? When we only look to the facts in this case, we see on one side a man largely indebted, hiding his property, and in fact destroying it, to prevent his creditors from reaping any benefit there from, and in this case, Shipman has been base enough to emancipate the slave to injure and ruin his security. We feel disposed to view him in a light but little below that of a felon. But there are two sides to every question; here is also the case of a person claiming the benefit of the ordinance of Congress of 1787, for the government of the Northwestern Territory, which declares, that in that country there shall be neither slavery nor involuntary servitude.”
In October 1826, the two men entered into a transaction, in Shelby County, Kentucky, by which Shipman gave security to Smith in case Smith was obligated to pay Shipman’s debts. That security was Milly. There was a dispute as to whether Shipman had sold Milly to Smith, subject to (in effect) a right to redeem her if Shipman was able to pay off his debts; or whether Shipman had merely mortgaged Millie to Smith, giving Smith the right to take possession of her if he was forced to pay Shipman’s debts. In an earlier case, a court had resolved that dispute in Shipman’s favor: Shipman, not Smith, remained Milly’s owner.
Having mortgaged Milly to Smith, Shipman secretly fled with Milly and several other slaves to Jefferson County, Indiana “with intent to withdraw himself and property from Smith and other creditors.” While in Jefferson County, Shipman then proceeded to defraud Smith and his other creditors by “execut[ing] a deed of emancipation in due form of law to the said Milly” and another mortgaged slave.
Shipman then took Milly to Peoria County, Illinois, where he “hired a farm” and established residence. He resided there from November 1826 until May 1827.
Meanwhile, after Shipman had emancipated Milly in Indiana, Smith was forced to pay several of Shipman’s debts, amounting to $1,634. Smith then tracked the fleeing Shipman down. In May 1827, Smith “came there [to Shipman’s farm in Peoria County, Illinois] and took Milly secretly and against her consent, and the consent of Shipman, and brought her to St. Louis, claiming her as his slave, and holding her as his slave.”
Milly then commenced this suit for freedom in Missouri state court. In the suit, Milly seems not to have relied upon the emancipation deed that Shipman executed. Perhaps Milly’s lawyer was concerned that the court would not give effect to the emancipation deed because it was clearly a fraud on Shipman’s creditors. For that reason or some other, Milly argued instead that she should be declared free “under the ordinance of Congress of 1787, for the government of the Northwestern Territory.
The trial court ruled against Milly, who then appealed to the Supreme Court of Missouri. In his majority opinion (the court divided 2-1), Justice McGirk framed the issue as follows:
“Upon this state of facts and law, the question submitted to us is, whether Milly is by law entitled to her freedom? When we only look to the facts in this case, we see on one side a man largely indebted, hiding his property, and in fact destroying it, to prevent his creditors from reaping any benefit there from, and in this case, Shipman has been base enough to emancipate the slave to injure and ruin his security. We feel disposed to view him in a light but little below that of a felon. But there are two sides to every question; here is also the case of a person claiming the benefit of the ordinance of Congress of 1787, for the government of the Northwestern Territory, which declares, that in that country there shall be neither slavery nor involuntary servitude.”
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