Winny v. Whitesides

Article 6 of the ordinance declares, "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.

"[3] The Laws of the Territory of Louisiana included "an act to enable persons held in slavery, to sue for their freedom" and a process for achieving that end.

If the court, or any judge thereof in vacation shall have reason to believe that the above order has been or is about to be violated, in such case the said court, or any judge thereof in vacation, may require that the person of the petitioner be brought before him or them, by writ of habeas corpus, and shall cause the defendant or defendants, his, her, or their agent to enter into recognizance with sufficient security, conditioned as recited in the above order, or in case of refusal to direct the sheriff of the district to take possession of the petitioner, and hire him or her to the best advantage, which hire shall be appropriated either to the petitioner, or to the defendant or defendants, as the event of the suit may justify...[4] "4.

"[4] In 1794 or 1795, Phebe Whitesides and her husband lived in the Carolinas with a slave about 12 years of age called Winny.

When Missouri entered statehood, the case was transferred to the Circuit Court of St. Louis County.

The court assumed the Whitesides had held Winny as a slave in Missouri for about 20 years, at which time she petitioned for her liberty.

Instead, he told the jury that if they believed the Whitesides resided in Illinois, with the intention of making the place their home, they should find for Winny and award damages to her as they would to any plaintiff in an action of false imprisonment.

[5] Phebe Whitesides appealed the judgment to the Supreme Court of Missouri, which heard the case in late 1824.

[5] Her argument consisted of three parts: First, through 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.”[6] Second, even if Winny had been free in the Northwest Territory, she had not sued for her freedom or been declared free there.

According to Whitesides’ counsel, her right of ownership "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 argued concerning the willingness of the court of one jurisdiction to recognize and apply the law of another.

As to the first argument, Tompkins conceded the Continental Congress might not have had the power, under the Articles of Confederation, to create the Northwest Territory, but declared that issue moot.

To us it appears most manifest that Congress had both power to acquire the Territory, and to forbid the introduction of slaves.”[9] Addressing Whitesides' second point, Tompkins rejected the assumption that the Northwest Territory was akin to a separate nation, asserting it was the property of the states and subject to the laws enacted by those states.

Even in situations involving different countries, he opined, “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.” Assuming Winny had gained her freedom in the Northwest Territory, she retained that right, regardless of whether or not she sought or obtained a court decree confirming her status.

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.