Friday, February 02, 2007

Winny v. Whitesides II: The Northwest Ordinance

To recap, Winny was a slave owned by the Whitesides, who took her from Carolina to Illinois, Northwest Territory in about 1795. They resided there until about 1798 or 1799 and then moved to Missouri. Winney sued for her freedom in 1818. Her argument was that her residence in the Northwest Territory made her free.

If you’re bothering to read this, I’m sure you know the relevant background about the Northwest Territory, but I’ll summarize it briefly. In 1787, the United States Continental Congress passed the Northwest Ordinance organizing the Northwest Territory. The Ordinance included a provision, Article 6, barring slavery in the Territory:

“Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”

In 1789, the First Congress passed
an act designed to insure that the Ordinance would “continue to have full effect.

On appeal, Mrs. Whitesides argued, first, “That by the articles of confederation, the [Continental] Congress had no power, either to purchase the said Territory, or to forbid, by law, that slaves should be held in that Territory.”

The Supreme Court of Missouri was then composed of three justices. Justice George Tompkins, a member of the court for only two years (1824-25), wrote the unanimous decision. Justice Tomkins squarely rejected Mrs. Whitesides' first contention. He conceded that the Continental Congress might not have had the power, under the Articles of Confederation, to create the Northwest Territory. But that issue was moot. The states had never objected, and the Constitution of 1789 thereafter “has expressly placed this power of regulating the Territory where alone it could be exercised, in the Congress.”

Justice Tompkins also ruled that Congress clearly had the power to make rules regulating the Territory, including rules concerning slavery:

“To acquire property is incident to sovereignty; so it is to make rules for the disposition and regulation thereof. To us it appears most manifest that Congress had both power to acquire the Territory, and to forbid the introduction of slaves.”

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