Saturday, February 03, 2007

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.”

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