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.