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.

Milly v. Smith II: A Pyrrhic Victory?

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.”

Milly v. Smith I: A Mortgaged Slave Sues for Freedom

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.”