Saturday, February 03, 2007

Winny v. Whitesides IV: Residence vs. Transit

Third, Mrs. Whitesides argued that the Northwest Ordinance simply provided that there would not be slavery in the Northwest Territory. It did not state "that the slaves of persons settling in that country . . . thereby become free."

Justice Tompkins was incredulous. "We did not suppose that any person could mistake the policy of Congress in making this provision." He continued, in a remarkable passage, as follows:

"When the States assumed the right of self-government they found their citizens claiming a right of property in a miserable portion of the human race. Sound national policy required that the evil should be restricted as much as possible. What they could, they did. They said, by their representatives, it shall not vest within these limits, and by their acts for nearly half a century they have approved and sanctioned this declaration."

Justice Tompkins did draw one distinction. Freedom attached if the master brought the slave into free territory with the intention of residing there (as the Whitesides admittedly had). But the same result would not obtain if master and slave merely traveled through the territory:

"The sovereign power of the United States has declared that 'neither slavery nor involuntary servitude shall exist' there; and this court thinks that the person who takes his slave into said territory, and by the length of his residence there indicates an intention of making that place his residence and that of his slave, and thereby induces a jury to believe that fact, does, by such residence, declare his slave to have become a free man. But it has been urged that by such a construction of the ordinance every person traveling through the territory, and taking along with him his slave, might thereby lose his property in his slave. We do not think the instructions of the Circuit Court can be, by any fair construction, strained so far; nor do we believe that any advocate for this portion of the species ever seriously calculated on the possibility of such a decision."

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