Winny v. Phebe Whitesides alias Prewitt

To the Honorable the Judges of the Superior Court in the Northern Circuit now sitting in the County of St Louis, for said Circuit. The petition of Winney a black woman who petitions for herself and for the following named persons who are her children under the age of twenty one years, humbly sheweth.

That about the year seventeen hundred and ninety five she was carried from Kentucky & held as a slave in the Territory of Indiana by one John Whitesides and Phebe his wife, that she lived there with them several years, when the said Whitesides removed to the Territory, bringing with him your Petitioner, where she has been held as a slave ever since. That since she has been living in this Territory she has had the following children to wit; Jerry, Daniel, Jenny, Nancy, Lydia, Sarah, Hannah, Lewis and Malinda. And your Petitioner is informed that by reason of having been held in Indiana, she and her children born since are free. And your Petitioner further sheweth that she and her children Hanna, Lewis, and Malinda are now claimed as slaves by Phebe Pruitt, that Jerry is claimed as a slave by the representatives 
of Thomas Whitesides deceased, Daniel by John Whitesides, Jenny by Robert Musick, Nancy by Isaac Votean, Lydia by John Butler and Sarah by Michael Hutton.

Wherefore your Petitioner prays that such order as the law directs may be made to enable to her to sue for her freedom and as next friend to each of her said children to sue for their freedom 
and &c.

(Signed) Winni
her X mark

Witness Present
Peter Ellis

State of Missouri
County of St Louis ss

I Archibald Gamble clerk of the Circuit Court do hereby certify that the within is a  
true copy of the Original Petition filed by Winny for Permission to sue for her freedom, now remaining on file in my office.

Given under my hand and seal of office at St. Louis is 2d day of November AD 1824
Archibald Gamble clerk

State of Missouri
County of St Louis ss

Be it remembered that at the April Term of the Circuit Court held at the Town of St Louis within and for the County of St Louis on the first Monday in April in the 
year of our Lord one thousand eight hundred and twenty one the case wherein Winny a free girl was plaintiff and Phebe Whiteside alias Pruitt was defendant was docketed and set for trial the Declaration in the case aforesaid is in the words following to wit

In the Superior Court Northern Circuit
March Term 1819

County of St Louis to wit: Winny a free woman held in slavery and who is permitted by the Court to sue as a poor person by J Barton and Henry S Geyer her attornies assigned as counsel by the said Court complains of Phebe Whitesides alias Pruitt of a plea of trespass. For that the said Phebe heretofore, to wit on the first day of January in the year of our Lord one thousand eight hundred and fifteen, with 
force and arms at the county aforesaid unlawfully an assault did make in and upon her the said Winny, and then and there beat bruised and ill treated her the said Winny, and then and there imprisoned her the said Winny, and kept and detained 
her in prison, without any lawful cause whatsoever. And hath ever since kept and detained and still doth keep and detain her in prison, against the will of the said Winny and contrary to the laws of the Territory. And other wrongs to her then and there did against the peace of the United States of America and to the damage of the said Winny five hundred dollars, and therefore she sues &c 

J Barton & Geyer Att[ornies] . . . 

The plea and replication filed in this case are as follows.

Superior Court. Northern Circuit April Term 1819

Phebe Whitesides alias Pruitt
ads
Winny

And the said Defendant by R Pettibone her attorney comes and defends the wrong and injury when &c. And as to the assaulting, beating, bruising, ill treating, and imprisoning, and keeping in prison the said plaintiff, as in her said Declaration mentioned, the said defendant says that the said plaintiff ought not to have and 
maintain her aforesaid action thereof against her the said defendant because she says, that before and at the time when &c in the said declaration mentioned, to wit at the place & within the jurisdiction aforesaid, the said plaintiff was and still is the slave of her the said Phebe. Wherefore the said defendant at the time when &c. did beat, imprison & detain in prison the said plaintiff so being the slave of 
her the said defendant, as she lawfully might do, which one the several supposed trespasses whereof the said Plaintiff hath above thereof complained against her, and this she is ready to verify, wherefore she prays Judgement &c

R Pettibone Atty

And the said Winny saith she ought not to be barred or precluded from maintaining her action aforesaid by reason of any thing by the said Phebe above in her said plea alledged because she says that at the time when &c in the said plea mentioned she was not and is not the slave of the said Phebe in manner and form as the said Phebe has in her said plea alledged. And this the said Winny prays may be enquired of by the Country. And the defendant likewise. 

J Barton for Pltf

And the said cause was continued in our said Circuit Court from Term to Term untill the February term in the year eighteen hundred and twenty two at which said Term come the parties aforesaid by their respective attornies aforesaid whereupon come a jury to wit Daniel Hough, George W Leatherburg, James Noble, Francis Creely, Elexis Edwards, Samuel Willi, Baptiste Borris, John L Sutton, John Moore, James Ramsey, John Semonds Sr., and Pascal Ceme twelve good and lawful men, who being duly elected tried and sworn well and truly to try the issues within joined between the parties aforesaid upon their oaths aforesaid do say that at the time when &c in the declaration mentioned, the said plaintiff was not the slave of the said Phebe as she has above in her said plea alledged and they assess of the damage of the said plaintiff by her sustained by season of the trespass in the declaration mentioned to the sum of one hundred and sixty seven dollars and fifty cents. Therefore it is considered that the said Winny recover against the said Phebe Whitesides alias Pruitt her damages aforesaid in form aforesaid by the Jury assessed and also her costs and charges by her about her suit in this behalf expended and that she have thereof execution. And it is further considered that the said Winny be liberated from the said Phebe Whitesides alias Pruitt and all persons claiming by from or under her, whereupon the said defendant prays an appeal to the Supreme Court. And the said plaintiff dispences with and releases the said defendant from entering into any recognizance or giving any security in the said appeal upon which the appeal is granted and the record and proceedings ordered to be certified up accordingly. And the said defendant by her attorney files her bill of exceptions which is signed by the Court and ordered to be made part of the record and is in the words following to wit. 

"St Louis Circuit Court. Winne vs Phebe Whitesides alias Pruit. February Term 1822. On the trial of this suit it was proved on the part of the plaintiff that she said defendant with her then husband resided in the present State of Illinois between twenty and thirty years since during the space of three or four years; and that during the said three or four years they held the said Winne in servitude as their slave, having brought her the said Winne with them from Carolina that at the end of the tie last above mentioned the said Phebe with her said husband removed to the now State of Missouri; and that the said Winne was then and for years afterwards there held as their slave.

The counsel from the defendant then required the court to instruct the Jury that a residence in Illinois as above mentioned did not render the said Winne free under and in virtue of the ordinance of Congress of the year one thousand seven hundred and eighty seven for the government of the Territory of the United States Northwest of the river Ohio; and also that the law did not authorize the recovery of more than nominal damages in this action by the plaintiff: Which instructions the court refused, but charged the Jury that said Ordinance did in law set the said Winne free if it should appear to the satisfaction of the Jury that the said defendant & her then husband resided there with intent to make that Territory the home of themselves and of the said Winne, and that said Winne was entitled to damages in this form of action, on the same principles that any other plaintiff might recover in an action of false imprisonment. To these opinions of the Court delivered to the Jury the Counsel for the defendant excepted & prayed the Court to sign and seal a bill of exceptions taken thereto, which is done accordingly in open court this 15th day of February in the year one thousand eight hundred and twenty two.

N. B. Tucker (seal) . . ."

Winny a free woman held in slavery
vs
Phebe Whitesides alias Prewitt

This is an action of assault and battery and false imprisonment commenced in conformity to the Statute in the Superior court of the territory and afterwards transferred by law to the Circuit court of St Louis county

The declaration is in the common form, the plea is special and justifies by stating that the plaintiff was the defendant's slave, the replication denies the plea and tenders an issue which is joined. Judgment for the plaintiff at the February term of the year 1822.

Exceptions to the opinion of the court were filed & from them it appeared that about twenty five years before the defendant with her husband had removed from Carolina to Illinois and brought from Carolina with them the plaintiff to Illinois where they resided about three or four years retaining the plaintiff during the term of their residence in Illinois in slavery in Illinois. From Illinois the defendant & her then husband removed to Missouri bringing with them the plaintiff in this action & still holding her as a slave

The counsel for the defendant prayed the Court to instruct the Jury that such a residence as was above mentioned did not render the said Winny free under & by virtue of the Ordinance of Congress of the year 1787 for the Government of the territory of the United States North West of the River Ohio, and also that the law did not give the plaintiff more than nominal damages in this action. These instructions the court refused to give, but charged the Jury, that if they believed the defendant and her then husband resided in Illinois with an intention to make that place the home of themselves and of the said Winny they should find the issue for the plaintiff and assess damages to her in the form of action on the same principles as any other plaintiff might recover in an action of false imprisonment.

To the reverse the Judgment of the Circuit Court the defendant below brings her writ of error in this court.

For the plaintiff in error it was contended

1st That by the articles of confederation the Congress had no power either to purchase the said territory or to forbid by law that slaves should be held in that territory.

2nd That, admitting congress had this right and the slave taken into Illinois became free, the masters right revived so soon as he found the slave in Missouri unless the slave had while residing there asserted & obtained his freedom by the process of law.

3rd That the ordinance itself does not declare the slave of a person settling in that territory becomes thereby free. & 4th That only nominal damages could be recovered in this action.

As to the first point We conceive that the states alone had a right to dispute the power of Congress either to purchase the territory or to prohibit slavery within the territory. The articles of Confederation were intended to limit the powers of Congress over the states & not those of the Congress over any territory that might in future be acquired for as was observed in argument those articles of confederation do not seem to contemplate the acquisition of any territory. It is most evident that the states have by acquiescing in the act by which the Congress acquired this territory given it their sanction, and if we reflect that, after the adoption of the present federal Constitution and the consequent dissolution of the former government the states proceeded by their representatives in Congress to cause the lands within the limits of such territory to be surveyed & sold for their own use and that they still derive from the sales of those lands a revenue to pay the debt of the nation we must call it a very solemn sanction. To dispute then the power of Congress to purchase is to dispute the power of the states to receive. The territory then being purchased the states alone had the power to pronounce illegal the ordinance made by the Congress for the government of that territory. And the constitution as we now have it made since the acquisition of this territory had expressly placed this power of regulating the territory, where alone it could be exercised, in the Congress. It is too late now to raise a doubt on that subject. It is a rule of the National as well as of the common law that the acts of a government de facto are binding on all future governments. How then shall an individual, who by settling there recognised the power of the Congress and asserted to the Articles of the Compact, pretend to dispute the authority of the agent with whom he treated? To acquire property is incident to sovereignty; so is it to make rules for the disposition & regulation thereof. To us it appears most manifest that Congress had both powers, to acquire the territory & to forbid the introduction of slaves.

It was urged secondly that though Congress had this right and the slave taken into Illinois became free yet the right of the plaintiff in error revived so soon as the slave was found in Missouri unless the slave had while residing there asserted and revived obtained his freedom by the process of law.

In support of this point it was said that the states being sovereign & 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 travelling into 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. 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. The territory is & 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 & executed. Huberus quoted 3 Dallas 375 says personal rights or disabilities obtained or communicated by the laws of any particular place are of a nature which accompany the person wherever he goes. If this be the case in countries altogether independent of each other, how much more in the case of a person removing from this common territory of all the states to one of those states. An adjudication of those rights in the country where they accrue may be evidence of them but can not give them. We are clearly of opinion that, if by a residence in Illinois the plaintiff in error lost her right to the property in the defendant, that right was not revived by a removal of the parties to Missouri.

It was urged thirdly that the slave of [a] person settling in that territory does not thereby become free. The words of the ordinance are "that there shall be neither slavery nor involuntary servitude in the said Territory." We did not suppose that any person could mistake the policy of Congress in making this provision. 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 exist within these limits, and by their acts for nearly half a century they have approved & sanctioned this declaration. what then shall be the consequence? The common law Judges of England without any positive declaration of the will of the legislative body availed themselves of every indirect admission of the Master or Lord in favor of the Liberty of his slave or villein & The lord having once answered the villein by plea in the courts of common law was never after permitted to claim the benefit of his services as a slave.

The sovereign power of the United States has declared that "neither slavery nor involuntary servitude shall exist there,["] & 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 & 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 travelling 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.

Lastly it was urged that the damages ought to be nominal. We think the circuit court decided correctly. In our opinion the measure of damages is the worth of the defendant's labor; and any ill treatment during the time of the defendant being held in slavery might have been given in evidence in aggravation of damages. The Judgment of the Circuit Court is affirmed.

Mathias McGirk, George Tompkins Judges

Winny a free woman &c
vs
Phebe Whitesides alias Prewitt

Opinion

filed 8th Novr 1824
Th. Douglass Clk

Tompkins