Before the Supreme Court of Missouri, counsel for Smith made a concession that is worth quoting in full:
“[I]t is insisted that if Shipman was the legal owner of the slave at the time he brought Milly to Illinois, to reside there permanently with her she became free in virtue of the [Northwest] ordinance. This doctrine is conceded by Smith’s counsel, and it has been so decided in repeated instances by this court.”
In other words, Smith’s attorney apparently recognized that the Court had definitively ruled on the issue at least twice in the past five years, in Winny (1824) and Merry (1827). He presumably concluded that there was no reason to think that the court would change its mind and that he would only impair his credibility by arguing otherwise. He therefore conceded the point and focused his argument on whether Shipman was Milly’s “legal owner.”
As I explained in my first post on the case, Justice McGirk concluded that he was bound by a decision in an earlier case, which held that Shipman had “mortgaged” Milly and had not sold her to Smith; therefore Shipman was Milly’s “legal owner” when he established residence in Illinois with her.
But that did not necessarily end the matter. Milly was “free as to Shipman forever.” But did that mean she was free as to Smith? The Court’s answer was, Not entirely. The general rule was “that all incumbrances subsequently created by the mortgagor [Shipman] are to yield to the mortgagees’ [Smith’s] right to foreclosure and have his money.” Therefore, Milly was free as to Smith for the moment, but her freedom was conditional and subject to his lien:
“[A]s to Smith [Milly] has the same indefinite right to liberty that Shipman had to the possession of her, and until the lien is enforced by some mode known to the law, she ought to enjoy her freedom. . . . Upon the whole matter, I am of the opinion that Milly is free sub modo, and that the judgment of the Circuit Court, ought to be, and is reversed with costs, and such judgment given as the court below ought to have given, which is, that Milly is free.”
“[I]t is insisted that if Shipman was the legal owner of the slave at the time he brought Milly to Illinois, to reside there permanently with her she became free in virtue of the [Northwest] ordinance. This doctrine is conceded by Smith’s counsel, and it has been so decided in repeated instances by this court.”
In other words, Smith’s attorney apparently recognized that the Court had definitively ruled on the issue at least twice in the past five years, in Winny (1824) and Merry (1827). He presumably concluded that there was no reason to think that the court would change its mind and that he would only impair his credibility by arguing otherwise. He therefore conceded the point and focused his argument on whether Shipman was Milly’s “legal owner.”
As I explained in my first post on the case, Justice McGirk concluded that he was bound by a decision in an earlier case, which held that Shipman had “mortgaged” Milly and had not sold her to Smith; therefore Shipman was Milly’s “legal owner” when he established residence in Illinois with her.
But that did not necessarily end the matter. Milly was “free as to Shipman forever.” But did that mean she was free as to Smith? The Court’s answer was, Not entirely. The general rule was “that all incumbrances subsequently created by the mortgagor [Shipman] are to yield to the mortgagees’ [Smith’s] right to foreclosure and have his money.” Therefore, Milly was free as to Smith for the moment, but her freedom was conditional and subject to his lien:
“[A]s to Smith [Milly] has the same indefinite right to liberty that Shipman had to the possession of her, and until the lien is enforced by some mode known to the law, she ought to enjoy her freedom. . . . Upon the whole matter, I am of the opinion that Milly is free sub modo, and that the judgment of the Circuit Court, ought to be, and is reversed with costs, and such judgment given as the court below ought to have given, which is, that Milly is free.”
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