Slave Freedom Suits in Missouri: A Review

I have now discussed six cases decided by the Supreme Court of Missouri between 1824 and 1836: Winny v. Whitesides (1824); Merry v. Tiffin (1827); Milly v. Smith (1829); Julia v. McKinnney (1833); Nat v. Ruddle (1834); and Rachael v. Walker (1836). In each, the issue was whether Missouri courts should award a slave his or freedom because that slave had, at some point in the past, resided in a free state or territory.

The cases are remarkable. In each, the Supreme Court held that Missouri courts should apply the law of the free state or territory if the slave had resided there. Although the court drew the line at truly transitory presence, the court interpreted “residence” broadly. Although it characterized a master’s loss of his slave as a “forfeiture,” it repeatedly rejected attempts by slaveholders to narrow the definition of residence in lawyerly ways that would probably not have raised many eyebrows. To the contrary, the court expressed its frustration with slaveholders continued to contest what the court regarded as well-settled legal precedent.

The cases also suggest that the slaveholder litigants were not the only people unhappy with the court’s rulings. In rendering its decisions, the court was repeatedly forced to reverse jury instructions given by the state Circuit Court in St. Louis. Trial judges seem to have been sympathetic to slaveholder concerns and were interpreting the Supreme Court’s precedents to avoid or at least reduce their impact on slaveholders.

Finally, and perhaps most worthy of note, is what the cases do not say. There is no indication that even slaveholders were arguing that Missouri courts should not give some effect to the laws of the free states and territories. There is no suggestion that even slaveholders were contending that Missouri should simply apply its own law and ignore the law of other states and territories. Such contentions were apparently too outlandish for even determined slaveholders to make in the 1820s and 1830s.

I’m sure that you know where I am going by now. In the early 1850s, all this will change. In installments to follow, I will discuss the Supreme Court of Missouri’s decision in Scott v. Emerson, 15 Mo. 576, 1852 WL 4171 (1852). The United States Supreme Court’s later decision in Scott v. Sandford, 60 U.S. 393 (1857), is far more famous (or infamous); but it is the decision of the Supreme Court of Missouri – reversing almost thirty years of state law – that made the later decision necessary – and possible.

Julia v. McKinney I: An Owner's Plan to Thwart Freedom

In Julia v. McKinney, 3 Mo. 270, 1833 WL 3254 (1833), the Supreme Court of Missouri once again confronted the issue whether it should declare a slave free based upon the laws of a free territory or state. The court reaffirmed its holdings in Winny v. Whitesides (1824), Merry v. Tiffin (1827) and Milly v. Smith (1829), in which it held that a slave who resided in a free territory or state should be declared free based upon foreign law. Julia is particularly noteworthy because the court pointedly rejected an opportunity to limit its earlier decisions in a way that would have been legally plausible and highly advantageous to slaveholders.

Lucinda Carrington, the owner of a slave named Julia, lived in Kentucky. When Mrs. Carrington announced in 1829 that she intended to move to Illinois with Julia, a neighbor warned her “that if she took [Julia] there she would be free.” The Illinois Constitution contained a provision “which declares that neither slavery nor involuntary servitude shall hereafter be introduced into this State otherwise than for the punishment of crimes . . . and concludes by saying any violation of this article shall effect the emancipation of such person for his obligation to service.”

Determined nonetheless to move to Illinois, Mrs. Carrington then established a plan to evade the constitutional provision. She arrived in Pike County, Illinois on October 27 or 28, 1829 with Julia and settled herself there. But she asserted that she did not intend to keep Julia in Illinois, but instead to hire her out in Missouri. For a little over a month, until December 1, 1829, Julia stayed with Mrs. Carrington. During that month, Mrs. Carrington “exercise[ed] the ordinary acts of ownership and dominion over [Julia] which are usually exercised by masters over their slaves.” Mrs. Carrington also hired Julia out in Illinois for “about two days.”

On about December 1, 1829, Mrs. Carrington “sent Julia to Louisiana, Missouri, a distance of about thirty miles, and hired her out” there. Julia became sick, and Mrs. Carrington had her return to Pike County, Illinois. When Julia recovered, Mrs. Carrington sent her to St. Louis, where she was sold to S. McKinney.

Julia sued for her freedom in the Circuit Court of St. Louis County, naming Mr. McKinney, her new owner, as the defendant. She contended that Mrs. Carrington and she had resided in Illinois between October 27 or 28 and December 1, 1829. At trial, however, the Circuit Court gave the jury an instruction, unfavorable to Julia, that focused on Mrs. Carrington’s intent, rather than her actions. The trial court instructed the jury that, if it believed that Julia “was taken into the State of Illinois by her owner without any intention on the part of such owner to make that State the residence of Julia, that the plaintiff is not entitled to recover in this action.”

The jury returned a verdict against Julia, and the Circuit Court entered judgment against her. Julia then appealed to the Supreme Court of Missouri.

In the next post, we shall examine how the court analyzed and resolved the issues.

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.

Merry v. Tiffin I: Missouri Expands Winny

The Supreme Court of Missouri decided Winny v. Whitesides, discussed in earlier posts, in 1824. Three years later, in Merry v. Tiffin, 1 Mo. 725, 1827 WL 2008 (1827), the court reaffirmed and expanded the holding of Winny.

The facts of Merry were poignant. Before 1787, when the Northwest Ordinance was passed, the plaintiff's mother, unnamed in the opinion, "was holden as a slave" in that part of the Northwest Territory "now called Illinois." She remained a slave after the Ordinance was enacted and, in about 1791 gave birth to the plaintiff, "John." John "was holden there [in the Northwest Territory and Illinois] as a slave, till lately." Apparently, his master then moved with John to Missouri.

Using the same procedure that Winny had used, John brought an action for assault and battery in an attempt to be declared free. At trial in St. Louis Circuit Court, John's counsel "asked the court to instruct the jury, that by virtue of said [Northwest] ordinance, under these circumstances, John was entitled to his freedom."

Unlike the trial judge in Merry, the judge presiding at John's trial refused to so instruct the jury. Judgment was entered against John, and he appealed to the Missouri Supreme Court.

Justice Matthias McGirk (spelled "M'Girk" in the Westlaw opinion) wrote the decision for the unanimous court. Justice McGirk, was born in 1783. A native of Tennessee, he came to Missouri in about 1810 and served as a territorial representative in 1813. When the Supreme Court of Missouri was established in 1820, he was named as one of its three justices. He served for twenty years (1821-41) and died the following year, 1842.

Justice McGirk, for a unanimous court, reversed the judgment against John and remanded the case for a new trial. In the next post, I will review the court's brief opinion (less than a page of Westlaw text), in which it rejected an attempt to distinguish Winny.

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."

Winny v. Whitesides III: Recognition of Status Conveyed By Foreign Law

Mrs. Whitesides’ second argument was that, even if Winny had been free in the Northwest Territory, she had not sued for her freedom or been declared free there. For the past twenty years, Winny had been, and was now, a resident of Missouri, a slave territory and State. As Mrs. Whitesides’ counsel put it, “the right of [Mrs. Whitesides as owner] revived so soon as the slave was found in Missouri, unless the slave had, while residing there [in the Northwest Territory], asserted and obtained his freedom by the process of law.”

Counsel also expressed the argument in terms of the willingness of the court of one jurisdiction to recognize and apply the law of another jurisdiction. A Missouri court, adjudicating the rights of Missouri residents, need not and should not apply the law of the Northwest Territory or Illinois. The court’s opinion indicates that counsel analogized a slave to a lost horse:

“[I]t was said [by counsel] that the States, being sovereign and independent, were, in this respect, in relation to each other, as foreign nations, and that one nation would not execute the penal laws of another, and that if a citizen of one country traveling to another, should there lose his horse by means of a law there, contrary to our laws, that he would have a right to take his horse again, should he ever find it in his own country.

Justice Tompkins rejected this reasoning in no uncertain terms. “To the latter part of this doctrine we do not agree, and if we did, we do not perceive its application to the present case.” He based his conclusion on several considerations. First, he rejected the assumption that a federal territory was akin to a separate nation. The Northwest Territory was the property of the states, which should respect the laws established there:

“The territory is, and was then, the property of the States, and governed by a law enacted by the agents of those States, which law the policy of those States, as well as their duty, requires them to cause to be respected and executed.”

Second, even in situations involving different countries, “personal rights and disabilities, obtained or communicated by the laws of any particular place, are of a nature which accompany the person wherever he goes.” If Winny became free in the Northwest Territory, that right attached, and it was irrelevant that Winny had not sought or obtained a court decree confirming her status. “An adjudication of those rights, in the country where they accrue may be evidence of them, but cannot give them.”

In sum, for these reasons, Justice Tompkins was “clearly of the opinion that if, by a residence in Illinois, [Mrs. Whitesides] lost her right to the property in the defendant, that right was not revived by a removal of the parties to Missouri.”

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.”

Winny v. Whitesides I: A Suit for Freedom

Winny v. Whitesides, 1 Mo. 472, 1824 WL 1839 (1824), decided by the Supreme Court of Missouri in 1824, is a wonderful case to use as a primer on pre-Dred Scott slave emancipation law. My discussion is aided by the St. Louis Circuit Court Historical Records Project, which has made available online a wonderful collection of photographic images of some of the original pleadings in the trial court.

Let’s look first at the facts.

As of about 1794 or 1795, Phebe Whitesides and her husband resided in “Carolina” with a slave, Winny. In about 1794 or 1795, the Whitesides moved from Carolina to “Illinois” (then part of the Northwest Territory), bringing Winny with them. The Whitesides resided in Illinois about three of four years, “retaining [Winny], during the term of their residence in Illinois, in slavery, in Illinois.” A witness described Winny during this period as a “negro girl.” Assuming she was twelve years of age in 1795, she would have been born about 1783.

Thereafter (about 1798 or 1799), the Whitesides moved to Missouri, bringing Winny with them “and still holding her as a slave.” They apparently resided in the St. Louis area.

The jury found, and the Missouri Supreme Court assumed for purposes of its decision, that the Whitesides continually claimed and held Winny as a slave in Missouri for the next twenty years, until Winny filed suit in 1818. (Mr. Whitesides died some time after 1814, and upon his death, Mrs. Whitesides became Winny’s owner.) One witness, however, submitted an affidavit in which he asserted that, in about 1814, the Whitesides executed an instrument conveying Winny to Mrs. Whitesides’ children. Whether the witness failed to testify at trial, or he did testify and the jury did not credit his testimony, I do not know.

Winny filed suit to obtain her freedom against Mrs. Whitesides in the Superior Court of Missouri Territory in 1818. After Missouri achieved statehood, the case was transferred to the state Circuit Court of St. Louis County.

The decision and court records do not explain why Winny waited twenty years to sue, or what prompted her to sue when she did. I do have a theory, though. In 1818, Winnie was about thirty-five years of age. The court records reveal that she then had nine children. My guess is that Winny hoped that her suit would also mean freedom for her children, some of whom were in their teens and approaching legal age. Again, just a guess.

The decision explains how such suits typically worked. There was not a separate cause of action to be declared free. Instead, using “the common form,” Winny sued Mrs. Whitesides for “assault and battery.” This did not mean that Mrs. Whitesides had physically hit or assaulted Winny. Rather, it was, in effect, an assertion that Mrs. Whitesides was restraining Winny in a way that would not be lawful if Winny were free. You should think of it as a suit for “unlawful imprisonment.”

In accordance with usual procedures, Mrs. Whitesides denied liability on the ground that Winny was her slave. In other words, Mrs. Whitesides did not deny that she had “imprisoned” Winny, but she did deny that she had “unlawfully” imprisoned her. She asserted, in effect, that she was justified and entitled to “imprison” Winny because Winny was a slave and not free. Winny, in turn, challenged Mrs. Whitesides’ defense of justification. By this roundabout procedure, the parties effectively placed before the trial court the issue of Winny’s status as slave or free.

After delays, a jury trial was held in February 1822. The thrust of Winny’s case, of course, was that her residence in the Northwest Territory had made her free. Mrs. Whitesides’ counsel asked the trial judge to instruct the jury that Winny’s residence in Illinois “did not render the said Winny free, under and by virtue of the ordinance of Congress of 1787.” The trial judge refused to give this instruction. Instead, he instructed the jury (as paraphrased by the Supreme Court):

“that if they [the jury] believed the defendant and her then husband [the Whitesides], resided in Illinois, with an intention to make that place their home of themselves and of the said Winny, they should find the issue for the plaintiff [Winny], and assess damages to her in this form of action, on the same principles as any other plaintiff might recover in an action of false imprisonment.”

The jury returned a verdict in favor of Winny and awarded her damages of $167.50. Mrs. Whitesides appealed from the resulting judgment against her to the Supreme Court of Missouri, which heard the appeal in late 1824.