DISSENT: Mr. Justice McLEAN dissenting.

 

     This case is before us on a writ of error from the Circuit

Court for the district of Missouri.

 

     An action of trespass was brought, which charges the

defendant with an assault and imprisonment of the plaintiff, and

also of Harriet Scott, his wife, Eliza and Lizzie, his two

children, on the ground that they were his slaves, which was

without right on his part, and against law.

 

     The defendant filed a plea in abatement, "that said causes

of action, and each and every of them, if any such accrued to the

said Dred Scott, accrued out of the jurisdiction of this court,

and exclusively within the jurisdiction of the courts of the

State of Missouri, for that to wit, said plaintiff, Dred Scott,

is not a citizen of the State of Missouri, as alleged in his

declaration, because he is a negro of African descent, his

ancestors were of pure African blood, and were brought into this

country and sold as negro slaves; and this the said Sandford is

ready to verify; wherefore he prays judgment whether the court

can or will take further cognizance of the action aforesaid."

 

     To this a demurrer was filed, which, on argument, was

sustained by the court, the plea in abatement being held

insufficient; the defendant was ruled to plead over. Under this

rule he pleaded: 1. Not guilty; 2. That Dred Scott was a negro

slave, the property of the defendant; and 3. That Harriet, the

wife, and Eliza and Lizzie, the daughters of the plaintiff, were

the lawful slaves of the defendant.

 

     Issue was joined on the first plea, and replications of de

injuria were filed to the other pleas.

 

     The parties agreed to the following facts: In the year 1834,

the plaintiff was a negro slave belonging to Dr. Emerson, who was

a surgeon in the army of the United States. In that year, Dr.

Emerson took the plaintiff from the State of Missouri to the post

of Rock Island, in the State of Illinois, and held him there as a

slave until the month of April or May, 1836. At the time last

mentioned, Dr. Emerson removed the plaintiff from Rock Island to

the military post at Fort Snelling, situate on the west bank of

the Mississippi river, in the territory known as Upper Louisiana,

acquired by the United States of France, and situate north of

latitude thirty-six degrees thirty minutes north, and north of

the State of Missouri. Dr. Emerson held the plaintiff in slavery,

at Fort Snelling, from the last-mentioned date until year 1838.

 

     In the year 1835, Harriet, who is named in the second count

of the plaintiff's declaration, was the negro slave of Major

Taliaferro, who belonged to the army of the United States. In

that year, Major Taliaferro took Harriet to Fort Snelling, a

military post situated as hereinbefore stated, and kept her there

as a slave until the year 1836, and then sold and delivered her

as a slave, at Fort Snelling, unto Dr. Emerson, who held her in

slavery, at that place, until the year 1838.

 

     In the year 1836, the plaintiff and Harriet were married at

Fort Snelling, with the consent of Dr. Emerson, who claimed to be

their master and owner. Eliza and Lizzie, named in the third

count of the plaintiff's declaration, are the fruit of that

marriage. Eliza is about fourteen years old, and was born on

board the steamboat Gipsey, north of the north line of the State

of Missouri, and upon the river Mississippi. Lizzie is about

seven years old, and was born in the State of Missouri, at the

military post called Jefferson Barracks.

 

     In the year 1838, Dr. Emerson removed the plaintiff and said

Harriet and their daughter Eliza from Fort Snelling to the State

of Missouri, where they have ever since resided.

 

     Bofore the commencement of the suit, Dr. Emerson sold and

conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the

defendant, as slaves, and he has ever since claimed to hold them

as slaves.

 

     At the times mentioned in the plaintiff's declaration, the

defendant, claiming to be the owner, laid his hands upon said

plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them; doing

in this respect, however, no more than he might lawfully do, if

they were of right his slaves at such times.

 

     In the first place, the plea to the jurisdiction is not

before us, on this writ of error. A demurrer to the plea was

sustained, which ruled the plea bad, and the defendant, on leave,

pleaded over.

 

     The decision on the demurrer was in favor of the plaintiff;

and as the plaintiff prosecutes this writ of error, he does not

complain of the decision on the demurrer. The defendant might

have complained of this decision, as against him, and have

prosecuted a writ of error, to reverse it. But as the case, under

the instruction of the court to the jury, was decided in his

favor, of course he had no ground of complaint.

 

     But it is said, if the court, on looking at the record,

shall clearly perceive that the Circuit Court had no

jurisdiction, it is a ground for the dismissal of the case. This

may be characterized as rather a sharp practice, and one which

seldom, if ever, occurs. No case was cited in the argument as

authority, and not a single case precisely in point is

recollected in our reports. The pleadings do not show a want of

jurisdiction. This want of jurisdiction can only be ascertained

by a judgment on the demurrer to the special plea. No such case,

it is believed, can be cited. But if this rule of practice is to

be applied in this case, and the plaintiff in error is required

to answer and maintain as well the points ruled in his favor, as

to show the error of those ruled against him, he has more than an

ordinary duty to perform. Under such circumstances, the want of

jurisdiction in the Circuit Court must be so clear as not to

admit of doubt. Now, the plea which raises the question of

jurisdiction, in my judgment, is radically defective. The

gravamen of the plea is this: "That the plaintiff is a negro of

African descent, his ancestors being of pure African blood, and

were brought into this country, and sold as negro slaves."

 

     There is no averment in this plea which shows or conduces to

show an inability in the plaintiff to sue in the Circuit Court.

It does not allege that the plaintiff had his domicil in any

other State, nor that he is not a free man in Missouri. He is

averred to have had a negro ancestry, but this does not show that

he is not a citizen of Missouri, within the meaning of the act of

Congress authorizing him to sue in the Circuit Court. It has

never been held necessary, to constitute a citizen within the

act, that he should have the qualifications of an elector.

Females and minors may sue in the Federal courts, and so may any

individual who has a permanent domicil in the State under whose

laws his rights are protected, and to which he owes allegiance.

 

     Being born under our Constitution and laws, no

naturalization is required, as one of foreign birth, to make him

a citizen. The most general and appropriate definition of the

term citizen is "a freeman." Being a freeman, and having his

domicil in a State different from that of the defendant, he is a

citizen within the act of Congress, and the courts of the Union

are open to him.

 

     It has often been held, that the jurisdiction, as regards

parties, can only be exercised between citizens of different

States, and that a mere residence is not sufficient; but this has

been said to distinguish a temporary from a permanent residence.

 

     To constitute a good plea to the jurisdiction, it must

negative those qualities and rights which enable an individual to

sue in the Federal courts. This has not been done; and on this

ground the plea was defective, and the demurrer was properly

sustained. No implication can aid a plea in abatement or in bar;

it must be complete in itself; the facts stated, if true, must

abate or bar the right of the plaintiff to sue. This is not the

character of the above plea. The facts stated, if admitted, are

not inconsistent with other facts, which may be presumed, and

which bring the plaintiff within the act of Congress.

 

     The pleader has not the boldness to allege that the

plaintiff is a slave, as that would assume against him the matter

in controversy, and embrace the entire merits of the case in a

plea to the jurisdiction. But beyond the facts set out in the

plea, the court, to sustain it, must assume the plaintiff to be a

slave, which is decisive on the merits. This is a short and an

effectual mode of deciding the cause; but I am yet to learn that

it is sanctioned by any known rule of pleading.

 

     The defendant's counsel complain, that if the court take

jurisdiction on the ground that the plaintiff is free, the

assumption is against the right of the master. This argument is

easily answered. In the first place, the plea does not show him

to be a slave; it does not follow that a man is not free whose

ancestors were slaves. The reports of the Supreme Court of

Missouri show that this assumption has many exceptions; and there

is no averment in the plea that the plaintiff is not within them.

 

     By all the rules of pleading, this is a fatal defect in the

plea. If there be doubt, what rule of construction has been

established in the slave States? In Jacob v. Sharp, (Meigs's

Rep., Tennessee, 114,) the court held, when there was doubt as to

the construction of a will which emancipated a slave, "it must be

construed to be subordinate to the higher and more important

right of freedom."

 

     No injustice can result to the master, from an exercise of

jurisdiction in this cause. Such a decision does not in any

degree affect the merits of the case; it only enables the

plaintiff to assert his claims to freedom before this tribunal.

If the jurisdiction be ruled against him, on the ground that he

is a slave, it is decisive of his fate.

 

     It has been argued that, if a colored person be made a

citizen of a State, he cannot sue in the Federal court. The

Constitution declares that Federal jurisdiction "may be exercised

between citizens of different States," and the same is provided

in the act of 1789. The above argument is properly met by saying

that the Constitution was intended to be a practical instrument;

and where its language is too plain to be misunderstood, the

argument ends."

 

     In Chirae v. Chirae, (I Wheat., 261; 4 Curtis, 99,) this

court says: "That the power of naturalization is exclusively in

Congress does not seem to be, and certainly ought not to be,

controverted." No person can legally be made a citizen of a

State, and consequently a citizen of the United States, of

foreign birth, unless he be naturalized under the acts of

Congress. Congress has power "to establish a uniform rule of

naturalization."

 

     It is a power which belongs exclusively to Congress, as

intimately connected with our Federal relations. A State may

authorize foreigners to hold real estate within its jurisdiction,

but it has no power to naturalize foreigners, and give them the

rights of citizens. Such a right is opposed to the acts of

Congress on the subject of naturalization, and subversive of the

Federal powers. I regret that any countenance should be given

from this bench to a practice like this in some of the States,

which has no warrant in the Constitution.

 

     In the argument, it was said that a colored citizen would

not be an agreeable member of society. This is more a matter of

taste than of law. Several of the States have admitted persons of

color to the right of suffrage, and in this view have recognized

them as citizens; and this has been done in the slave as well as

the free States. On the question of citizenship, it must be

admitted that we have not been very fastidious. Under the late

treaty with Mexico, we have made citizens of all grades,

combinations, and colors. The same was done in the admission of

Louisiana and Florida. No one ever doubted, and no court ever

held, that the people of these Territories did not become

citizens under the treaty. They have exercised all the rights of

citizens, without being naturalized under the acts of Congress.

 

     There are several important principles involved in this

case, which have been argued, and which may be considered under

the following heads:

 

     1.   The locality of slavery, as settled by this court

          and the courts of the States.

 

     2.   The relation which the Federal Government bears to

          slavery in the States.

 

     3.   The power of Congress to establish Territorial

          Governments, and to prohibit the introduction of

          slavery therein.

 

     4.   The effect of taking slaves into a new State or

          Territory, and so holding them, where slavery is

          prohibited.

 

     5.   Whether the return of a slave under the control of

          his master, after being entitled to his freedom,

          reduces him to his former condition.

 

     6.   Are the decisions of the Supreme Court of

          Missouri, on the questions before us, binding on

          this court, within the rule adopted.

 

 

     In the course of my judicial duties, I have had occasion to

consider and decide several of the above points.

 

     1.   As to the locality of slavery. The civil law throughout

the Continent of Europe, it is believed, without an exception,

is, that slavery can exist only within the territory where it is

established; and that, if a slave escapes, or is carried beyond

such territory, his master cannot reclaim him, unless by virtue

of some express stipulation. (Grotius, lib. 2, chap. 15, 5, 1;

lib. 10, chap. 10, 2, 1; Wicqueposts Ambassador, lib. 1, p. 418;

4 Martin, 385; Case of the Creole in the House of Lords, 1842; 1

Phillimore on International Law, 316, 335.)

 

     There is no nation in Europe which considers itself bound to

return to his master a fugitive slave, under the civil law or the

law of nations. On the contrary, the slave is held to be free

where there is no treaty obligation, or compact in some other

form, to return him to his master. The Roman law did not allow

freedom to be sold. An ambassador or any other public functionary

could not take a slave to France, Spain, or any other country of

Europe, without emancipating him. A number of slaves escaped from

a Florida plantation, and were received on board of ship by

Admiral Cochrane; by the King's Bench, they were held to be free.

(2 Barn. and Cres., 440.)

 

     In the great and leading case of Prigg v. The State of

Pennsylvania, (16 Peters, 594; 14 Curtis, 421,) this court say

that, by the general law of nations, no nation is bound to

recognize the state of slavery, as found within its territorial

dominions, where it is in opposition to its own policy and

institutions, in favor of the subjects of other nations where

slavery is organized. If it does it, it is as a matter of comity,

and not as a matter of international right. The state of slavery

is deemed to be a mere municipal regulation, founded upon and

limited to the range of the territorial laws. This was fully

recognized in Somersett's case, (Lafft's Rep., 1; 20 Howell's

State Trials, 79,) which was decided before the American

Revolution.

 

     There was some contrariety of opinion among the judges on

certain points ruled in Prigg's case, but there was none in

regard to the great principle, that slavery is limited to the

range of the laws under which it is sanctioned.

 

     No case in England appears to have been more thoroughly

examined than that of Somersett. The judgment pronounced by Lord

Mansfield was the judgment of the Court of King's Bench. The

cause was argued at great length, and with great ability, by

Hargrave and others, who stood among the most eminent counsel in

England. It was held under advisement from term to term, and a

due sense of its importance was felt and expressed by the Bench.

 

     In giving the opinion of the court, Lord Mansfield said:

 

     "The state of slavery is of such a nature that it is

incapable of being introduced on any reasons, moral or political,

but only by positive law, which preserves its force long after

the reasons, occasion, and time itself, from whence it was

created, is erased from the memory; it is of a nature that

nothing can be suffered to support it but positive law."

 

     He referred to the contrary opinion of Lord Hardwicke, in

October, 1749, as Chancellor: "That he and Lord Talbot, when

Attorney and Solicitor General, were of opinion that no such

claim, as here presented, for freedom, was valid."

 

     The weight of this decision is sought to be impaired, from

the terms in which it was described by the exuberant imagination

of Curran. The words of Lord Mansfield, in giving the opinion of

the court, were such as were fit to be used by a great judge, in

a most important case. It is a sufficient answer to all

objections to that judgment, that it was pronounced before the

Revolution, and that it was considered by this court as the

highest authority. For near a century, the decision in

Somersett's case has remained the law of England. The case of the

slave Grace, decided by Lord Stowell in 1827, does not, as has

been supposed, overrule the judgment of Lord Mansfield. Lord

Stowell held that, during the residence of the slave in England,

"No dominion, authority, or coercion, can be exercised over him."

Under another head, I shall have occasion to examine the opinion

in the case of Grace.

 

     To the position, that slavery can only exist except under

the authority of law, it is objected, that in few if in any

instances has it been established by statutory enactment. This is

no answer to the doctrine laid down by the court. Almost all the

principles of the common law had their foundation in usage.

Slavery was introduced into the colonies of this country by Great

Britain at an early period of their history, and it was protected

and cherished, until it became incorporated into the colonial

policy. It is immaterial whether a system of slavery was

introduced by express law, or otherwise, if it have the authority

of law. There is no slave State where the institution is not

recognized and protected by statutory enactments and judicial

decisions. Slaves are made property by the laws of the slave

States, and as such are liable to the claims of creditors; they

descend to heirs, are taxed, and in the South they are a subject

of commerce.

 

     In the case of Rankin v. Lydia, (2 A.K. Marshall's Rep.,)

Judge Mills, speaking for the Court of Appeals of Kentucky, says:

"In deciding the question, (of slavery,) we disclaim the

influence of the general principles of liberty, which we all

admire, and conceive it ought to be decided by the law as it is,

and not as it ought to be. Slavery is sanctioned by the laws of

this State, and the right to hold slaves under our municipal

regulations is unquestionable. But we view this as a right

existing by positive law of a municipal character, without

foundation in the law of nature, or the unwritten and common

law."

 

     I will now consider the relation which the Federal

Government bears to slavery in the States:

 

     Slavery is emphatically a State institution. In the ninth

section of the first article of the Constitution, it is provided

"that the migration or importation of such persons as any of the

States now existing shall think proper to admit, shall not be

prohibited by the Congress prior to the year 1808, but a tax or

duty may be imposed on such importation, not exceeding ten

dollars for each person."

 

     In the Convention, it was proposed by a committee of eleven

to limit the importation of slaves to the year 1800, when Mr.

Pinckney moved to extend the time to the year 1808. This motion

was carried -- New Hampshire, Massachusetts, Connecticut,

Maryland, North Carolina, South Carolina, and Georgia, voting in

the affirmative; and New Jersey, Pennsylvania, and Virginia, in

the negative. In opposition to the motion, Mr. Madison said:

"Twenty years will produce all the mischief that can be

apprehended from the liberty to import slaves; so long a term

will be more dishonorable to the American character than to say

nothing about it in the Constitution." (Madison Papers.)

 

     The provision in regard to the slave trade shows clearly

that Congress considered slavery a State institution, to be

continued and regulated by its individual sovereignty; and to

conciliate that interest, the slave trade was continued twenty

years, not as a general measure, but for the "benefit of such

States as shall think proper to encourage it."

 

     In the case of Groves v. Slaughter, (15 Peters, 449; 14

Curtis, 137,) Messrs. Clay and Webster contended that, under the

commercial power, Congress had a right to regulate the slave

trade among the several States; but the court held that Congress

had no power to interfere with slavery as it exists in the

States, or to regulate what is called the slave trade among them.

If this trade were subject to the commercial power, it would

follow that Congress could abolish or establish slavery in every

State of the Union.

 

     The only connection which the Federal Government holds with

slaves in a State, arises from that provision f the Constitution

which declares that "No person held to service or labor in one

State, under the laws thereof, escaping into another, shall, in

consequence of any law or regulation therein, be discharged from

such service or labor, but shall be delivered up, on claim of the

party to whom such service or labor may be due."

 

     This being a fundamental law of the Federal Government, it

rests mainly for its execution, as has been held, on the judicial

power of the Union; and so far as the rendition of fugitives from

labor has become a subject of judicial action, the Federal

obligation has been faithfully discharged.

 

     In the formation of the Federal Constitution, care was taken

to confer no power on the Federal Government to interfere with

this institution in the States. In the provision respecting the

slave trade, in fixing the ratio of representation, and providing

for the reclamation of fugitives from labor, slaves were referred

to as persons, and in no other respect are they considered in the

Constitution.

 

     We need not refer to the mercenary spirit which introduced

the infamous traffic in slaves, to show the degradation of negro

slavery in our country. This system was imposed upon our colonial

settlements by the mother country, and it is due to truth to say

that the commercial colonies and States were chiefly engaged in

the traffic. But we know as a historical fact, that James

Madison, that great and good man, a leading member in the Federal

Convention, was solicitous to guard the language of that

instrument so as not to convey the idea that there could be

property in man.

 

     I prefer the lights of Madison, Hamilton, and Jay, as a

means of construing the Constitution in all its bearings, rather

than to look behind that period, into a traffic which is now

declared to be piracy, and punished with death by Christian

nations. I do not like to draw the sources of our domestic

relations from so dark a ground. Our independence was a great

epoch in the history of freedom; and while I admit the Government

was not made especially for the colored race, yet many of them

were citizens of the New England States, and exercised the rights

of suffrage when the Constitution was adopted, and it was not

doubted by any intelligent person that its tendencies would

greatly ameliorate their condition.

 

     Many of the States, on the adoption of the Constitution, or

shortly afterward, took measures to abolish slavery within their

respective jurisdictions; and it is a well-known fact that a

belief was cherished by the leading men, South as well as North,

that the institution of slavery would gradually decline, until it

would become extinct. The increased value of slave labor, in the

culture of cotton and sugar, prevented the realization of this

expectation. Like all other communities and States, the South

were influenced by what they considered to be their own

interests.

 

     But if we are to turn our attention to the dark ages of the

world, why confine our view to colored slavery? On the same

principles, white men were made slaves. All slavery has its

origin in power, and is against right.

 

     The power of Congress to establish Territorial Governments,

and to prohibit the introduction of slavery therein, is the next

point to be considered.

 

     After the cession of western territory by Virginia and other

States, to the United States, the public attention was directed

to the best mode of disposing of it for the general benefit.

While in attendance on the Federal Convention, Mr. Madison, in a

letter to Edmund Randolph, dated the 22d April, 1787, says:

"Congress are deliberating on the plan most eligible for

disposing of the western territory not yet surveyed. Some

alteration will probably be made in the ordinance on that

subject." And in the same letter he says: "The inhabitants of the

Illinois complain of the land jobbers, &c., who are purchasing

titles among them. Those of St. Vincent's complain of the

defective criminal and civil justice among them, as well as of

military protection." And on the next day he writes to Mr.

Jefferson: "The government of the settlements on the Illinois and

Wabash is a subject very perplexing in itself, and rendered more

so by our ignorance of the many circumstances on which a right

judgment depends. The inhabitants at those places claim

protection against the savages, and some provision for both civil

and criminal justice."

 

     In May, 1787, Mr. Demund Randolph submitted to the Federal

Convention certain propositions, as the basis of a Federal

Government, among which was the following:

 

     "Resolved, That provision ought to be made for the admission

of States lawfully arising within the limits of the United

States, whether from a voluntary junction of government and

territory or otherwise, with the consent of a number of voices in

the National Legislature less than the whole."

 

     Afterward, Mr. Madison submitted to the Convention, in order

to be referred to the committee of detail, the following powers,

as proper to be added to those of general legislation:

 

     "To dispose of the unappropriated lands of the United

States. To institute temporary Governments for new States arising

therein. To regulate affairs with the Indians, as well within as

without the limits of the United States."

 

     Other propositions were made in reference to the same

subjects, which it would be tedious to enumerate. Mr. Gouverneur

Morris proposed the following:

 

     "The Legislature shall have power to dispose of and make all

needful rules and regulations respecting the territory or other

property belonging to the United States; and nothing in this

Constitution contained shall be so construed as to prejudice any

claims either of the United States or of any particular State."

 

     This was adopted as a part of the Constitution, with two

verbal alterations -- Congress was substituted for Legislature,

and the word either was stricken out.

 

     In the organization of the new Government, but little

revenue for a series of years was expected from commerce. The

public lands were considered as the principal resource of the

country for the payment of the Revolutionary debt. Direct

taxation was the means relied on to pay the current expenses of

the Government. The short period that occurred between the

cession of western lands to the Federal Government by Virginia

and other States, and the adoption of the Constitution, was

sufficient to show the necessity of a proper land system and a

temporary Government. This was clearly seen by propositions and

remarks in the Federal Convention, some of which are above cited,

by the passage of the Ordinance of 1787, and the adoption of that

instrument by Congress, under the Constitution, which gave to it

validity.

 

     It will be recollected that the deed of cession of western

territory was made to the United States by Virginia in 1784, and

that it required the territory ceded to be laid out into States,

that the land should be disposed of for the common benefit of the

States, and that all right, title, and claim, as well of soil as

of jurisdiction, were ceded; and this was the form of cession

from other States.

 

     On the 13th of July, the Ordinance of 1787 was passed, "for

the government of the United States territory northwest of the

river Ohio," with but one dissenting vote. This instrument

provided there should be organized in the territory not less than

three nor more than five States, designating their boundaries. It

was passed while the Federal Convention was in session, about two

months before the Constitution was adopted by the Convention. The

members of the Convention must therefore have been well

acquainted with the provisions of the Ordinance. It provided for

a temporary Government, as initiatory to the formation of State

Governments. Slavery was prohibited in the territory.

 

     Can any one suppose that the eminent men of the Federal

Convention could have overlooked or neglected a matter so vitally

important to the country, in the organization of temporary

Governments for the vast territory northwest of the river Ohio?

In the 3d section of the 4th article of the Constitution, they

did make provision for the admission of new States, the sale of

the public lands, and the temporary Government of the territory.

Without a temporary Government, new States could not have been

formed, nor could the public lands have been sold.

 

     If the third section were before us now for consideration

for the first time, under the facts stated, I could not hesitate

to say there was adequate legislative power given in it. The

power to make all needful rules and regulations is a power to

legislate. This no one will controvert, as Congress cannot make

"rules and regulations," except by legislation. But it is argued

that the word territory is used as synonymous with the word land;

and that the rules and regulations of Congress are limited to the

disposition of lands and other property belonging to the United

States. That this is not the true construction of the section

appears from the fact that in the first line of the section "the

power to dispose of the public lands" is given expressly, and, in

addition, to make all needful rules and regulations. The power to

dispose of is complete in itself, and requires nothing more. It

authorizes Congress to use the proper means within its

discretion, and any further provision for this purpose would be a

useless verbiage. As a composition, the Constitution is

remarkable free from such a charge.

 

     In the discussion of the power of Congress to govern a

Territory, in the case of the Atlantic Insurance Company v.

Canter, (1 Peters, 511; 7 Curtis, 685,) Chief Justice Marshall,

speaking for the court, said, in regard to the people of Florida,

"they do not, however, participate in political power; they do

not share in the Government till Florida shall become a State; in

the mean time, Florida continues to be a Territory of the United

States, governed by virtue of that clause in the Constitution

which empowers Congress to make all needful rules and regulations

respecting the territory or other property belonging to the

United States.'"

 

     And he adds, "perhaps the power of governing a Territory

belonging to the United States, which has not, by becoming a

State, acquired the means of self-government, may result

necessarily from the fact that it is not within the jurisdiction

of any particular State, and is within the power and jurisdiction

of the United States. The right to govern may be the inevitable

consequence of the right to acquire territory; whichever may be

the source whence the power is derived, the possession of it is

unquestioned." And in the close of the opinion, the court say,

"in legislating for them [the Territories,] Congress exercises

the combined powers of the General and State Governments."

 

     Some consider the opinion to be loose and inconclusive;

others, that it is obiter dicta; and the last sentence is

objected to as recognizing absolute power in Congress over

Territories. The learned and eloquent Wirt, who, in the argument

of a cause before the court, had occasion to cite a few sentences

from an opinion of the Chief Justice, observed, "no one can

mistake the style, the words so completely match the thought."

 

     I can see no want of precision in the language of the Chief

Justice; his meaning cannot be mistaken. He states, first, the

third section as giving power to Congress to govern the

Territories, and two other grounds from which the power may also

be implied. The objection seems to be, that the Chief Justice did

not say which of the grounds stated he considered the source of

the power. He did not specifically state this, but he did say,

"whichever may be the source whence the power is derived, the

possession of it is unquestioned." No opinion of the court could

have been expressed with a stronger emphasis; the power in

Congress is unquestioned. But those who have undertaken to

criticize the opinion, consider it without authority, because the

Chief Justice did not designate specially the power. This is a

singular objection. If the power be unquestioned, it can be a

matter of no importance on which ground it is exercised.

 

     The opinion clearly was not obiter dicta. The turning point

in the case was, whether Congress had power to authorize the

Territorial Legislature of Florida to pass the law under which

the Territorial court was established, whose decreed was brought

before this court for revision. The power of Congress, therefore,

was the point in issue.

 

     The word "territory, according to Worcester, "means land,

country, a district of country under a temporary Government." The

words "territory or other property," as used, do imply, from the

use of the pronoun other, that territory was used as descriptive

of land; but does it follow that it was not used also as

descriptive of a district of country? In both of these senses it

belonged to the United States -- as land, for the purpose of

sale; as territory, for the purpose of government.

 

     But, if it be admitted that the word territory as used means

land, and nothing but land, the power of Congress to organize a

temporary Government is clear. It has power to make all needful

regulations respecting the public lands, and the extent of those

"needful regulations" depends upon the direction of Congress,

where the means are appropriate to the end, and do not conflict

with any of the prohibitions of the Constitution. If a temporary

Government be deemed needful, necessary, requisite, or is wanted,

Congress has power to establish it. This court says, in McCulloch

v. The State of Maryland, (4 Wheat., 316,) "If a certain means to

carry into effect any of the powers expressly given by the

Constitution to the Government of the Union be an appropriate

measure, not prohibited by the Constitution, the degree of its

necessity is a question of legislative discretion, not of

judicial cognizance."

 

     The power to establish post offices and post roads gives

power to Congress to make contracts for the transportation of the

mail, and to punish all who commit depredations upon it in its

transit, or at its places of distribution. Congress has power to

regulate commerce, and, in the exercise of its discretion, to lay

an embargo, which suspends commerce; so, under the same power,

harbors, lighthouses, breakwaters, &c., and constructed.

 

     Did Chief Justice Marshall, in saying that Congress governed

a Territory, by exercising the combined powers of the Federal and

State Governments, refer to unlimited discretion? A Government

which can make white men slaves? Surely, such a remark in the

argument must have been inadvertently uttered. On the contrary,

there is no power in the Constitution by which Congress can make

either white or black men slaves. In organizing the Government of

a Territory, Congress is limited to means appropriate to the

attainment of the constitutional object. No powers can be

exercised which are prohibited by the Constitution, or which are

contrary to its spirit; so that, whether the object may be the

protection of the persons and property of purchasers of the

public lands, or of communities who have been annexed to the

Union by conquest or purchase, they are initiatory to the

establishment of State Governments, and no more power can be

claimed or exercised than is necessary to the attainment of the

end. This is the limitation of all the Federal powers.

 

     But Congress has no power to regulate the internal concerns

of a State, as of a Territory; consequently, in providing for the

Government of a Territory, to some extent, the combined powers of

the Federal and State Governments are necessarily exercised.

 

     If Congress should deem slaves or free colored persons

injurious to the population of a free Territory, as conducing to

lessen the value of the public lands, or on any other ground

connected with the public interest, they have the power to

prohibit them from becoming settlers in it. This can be sustained

on the ground of a sound national policy, which is so clearly

shown in our history by practical results, that it would seem no

considerate individual can question it. And, as regards any

unfairness of such a policy to our Southern brethren, as urged in

the argument, it is only necessary to say that, with one-fourth

of the Federal population of the Union, they have in the slave

States a larger extent of fertile territory than is included in

the free States; and it is submitted, if masters of slaves be

restricted from bringing them into free territory, that the

restriction on the free citizens of non-slaveholding States, by

bringing slaves into free territory, is four times greater than

that complained of by the South. But, not only so; some three or

four hundred thousand holders of slaves, by bringing them into

free territory, impose a restriction on twenty millions of the

free States. The repugnancy to slavery would probably prevent

fifty or a hundred freemen from settling in a slave Territory,

where one slaveholder would be prevented from settling in a free

Territory.

 

     This remark is made in answer to the argument urged, that a

prohibition of slavery in the free Territories is inconsistent

with the continuance of the Union. Where a Territorial Government

is established in a slave Territory, it has uniformly remained in

that condition until the people form a State Constitution; the

same course where the Territory is free, both parties acting in

good faith, would be attended with satisfactory results.

 

     The sovereignty of the Federal Government extends to the

entire limits of our territory. Should any foreign power invade

our jurisdiction, it would be repelled. There is a law of

Congress to punish our citizens for crimes committed in districts

of country where there is no organized Government. Criminals are

brought to certain Territories or States, designated in the law,

for punishment. Death has been inflicted in Arkansas and in

Missouri, on individuals, for murders committed beyond the limit

of any organized Territory or State; and no one doubts that such

a jurisdiction was rightfully exercised. If there be a right to

acquire territory, there necessarily must be an implied power to

govern it. When the military force of the Union shall conquer a

country, may not Congrees provide for the government of such

country? This would be an implied power essential to the

acquisition of new territory. This power has been exercised,

without doubt of its constitutionality, over territory acquired

by conquest and purchase.

 

     And when there is a large district of country within the

United States, and not within any State Government, if it be

necessary to establish a temporary Government to carry out a

power expressly vested in Congress -- as the disposition of the

public lands -- may not such Government be instituted by

Congress? How do we read the Constitution? Is it not a practical

instrument?

 

     In such cases, no implication of a power can arise which is

inhibited by the Constitution, or which may be against the theory

of its construction. As my opinion rests on the third section,

these remarks are made as an intimation that the power to

establish a temporary Government may arise, also, on the other

two grounds stated in the opinion of the court in the insurance

case, without weakening the third section.

 

     I would here simply remark, that the Constitution was formed

for our whole country. An expansion or contraction of our

territory required no change in the fundamental law. When we

consider the men who laid the foundation of our Government and

carried it into operation, the men who occupied the bench, who

filled the halls of legislation and the Chief Magistracy, it

would seem, if any question could be settled clear of all doubt,

it was the power of Congress to establish Territorial

Governments. Slavery was prohibited in the entire Northwestern

Territory, with the approbation of leading men, South and North;

but this prohibition was not retained when this ordinance was

adopted for the government os Southern Territories, where slavery

existed. In a late republication of a letter of Mr. Madison,

dated November 27, 1819, speaking of this power of Congress to

prohibit slavery in a Territory, he infers there is no such

power, from the fact that it has not been exercised. This is not

a very satisfactory argument against any power, as there are but

few, if any, subjects on which the constitutional powers of

Congress are exhausted. It is true, as Mr. Madison states, that

Congress, in the act to establish a Government in the Mississippi

Territory, prohibited the importation of slaves into it from

foreign parts; but it is equally true, that in the act erecting

Louisiana into two Territories, Congress declared, "it shall not

be lawful for any person to bring into Orleans Territory, from

any port or place within the limits of the United States, any

slave which shall have been imported since 1798, or which may

hereafter be imported, except by a citizen of the United States

who settles in the Territory, under the penalty of the freedom of

such slave." The inference of Mr. Madison, therefore, against the

power of Congress, is of no force, as it was founded on a fact

supposed, which did not exist.

 

     It is refreshing to turn to the early incidents of our

history, and learn wisdom from the acts of the great men who have

gone to their account. I refer to a report in the House of

Representatives, by John Randolph, of Roanoke, as chairman of a

committee, in March, 1803 -- fifty-four years ago. From the

Convention held at Vincennes, in Indiana, by their President, and

from the people of the Territory, a petition was presented to

Congress, praying the suspension of the provision which

prohibited slavery in that Territory. The report stated "that the

rapid population of the State of Ohio sufficiently evinces, in

the opinion of your committee, that the labor of slaves is not

necessary to promote the growth and settlement of colonies in

that region. That this labor, demonstrably the dearest of any,

can only be employed to advantage in the cultivation of products

more valuable than any known to that quarter of the United

States; that the committee deem it highly dangerous and

inexpedient to impair a provision wisely calculated to promote

the happiness and prosperity of the Northwestern country, and to

give strength and security to that extensive frontier. In the

salutary operation of this sagacious and benevolent restraint, it

is believed that the inhabitants will, at no very distant day,

find ample remuneration for a temporary privation of labor and of

emigration." (1 vol. State Papers, Public Lands, 160.)

 

     The judicial mind of this country, State and Federal, has

agreed on no subject, within its legitimate action, with equal

unanimity, as on the power of Congress to establish Territorial

Governments. No court, State of Federal, no judge or statesman,

is known to have had any doubts on this question for nearly sixty

years after the power was exercised. Such Governments have been

established from the sources of the Ohio to the Gulf of Mexico,

extending to the Lakes on the north and the Pacific Ocean on the

west, and from the lines of Georgia to Texas.

 

     Great interests have grown up under the Territorial laws

over a country more than five times greater in extent than the

original thirteen States; and these interests, corporate or

otherwise, have been cherished and consolidated by a benign

policy, without any one supposing the law-making power had united

with the Judiciary, under the universal sanction of the whole

country, to usurp a jurisdiction which did not belong to them.

Such a discovery at this late date is more extraordinary than

anything which has occurred in the judicial history of this or

any other country. Texas, under a previous organization, was

admitted as a State; but no State can be admitted into the Union

which has not been organized under some form of government.

Without temporary Governments, our public lands could not have

been sold, nor our wildernesses reduced to cultivation, and the

population protected; nor could our flourishing States, West and

South, have been formed.

 

     What do the lessons of wisdom and experience teach, under

such circumstances, if the new light, which has so suddenly and

unexpectedly burst upon us, be true? Acquiescence; acquiescence

under a settled construction of the Constitution for sixty years,

though it may be erroneous; which has secured to the country an

advancement and prosperity beyond the powe of computation.

 

     An act of James Madison, when President, forcibly

illustrates this policy. He had made up his opinion that Congress

had no power under the Constitution to establish a National Bank.

In 1815, Congress passed a bill to establish a bank. He vetoed

the bill, on objections other than constitutional. In his

message, he speaks as a wise statesman and Chief Magistrate, as

follows:

 

          "Waiving the question of the constitutional

     authority of the Legislature to establish an

     incorporated bank, as being precluded, in my judgment,

     by the repeated recognitions under varied circumstances

     of the validity of such an institution, in acts of the

     Legislative, Executive, and Judicial branches of the

     Government, accompanied by indications, in different

     modes, of a concurrence of the general will of the

     nation."

 

 

     Has this impressive lesson of practical wisdom become lost

to the present generation?

 

     If the great and fundamental principles of our Government

are never to be settled, there can be no lasting prosperity. The

Constitution will become a floating waif on the billows of

popular excitement.

 

     The prohibition of slavery north of thirty-six degrees

thirty minutes, and of the State of Missouri, contained in the

act admitting that State into the Union, was passed by a vote of

134, in the House of Representatives, to 42. Before Mr. Monroe

signed the act, it was submitted by him to his Cabinet, and they

held the restriction of slavery in a Territory to be within the

constitutional powers of Congress. It would be singular, if in

1804 Congress had power to prohibit the introduction of slaves in

Orleans Territory from any other part of the Union, under the

penalty of freedom to the slave, if the same power, embodied in

the Missouri compromise, could not be exercised in 1820.

 

     But this law of Congress, which prohibits slavery north of

Missouri and of thirty-six degrees thirty minutes, is declared to

have been null and void by my brethren. And this opinion is

founded mainly, as I understand, on the distinction drawn between

the ordinance of 1787 and the Missouri compromise line. In what

does the distinction consist? The ordinance, it is said, was a

compact entered into by the confederated States before the

adoption of the Constitution; and that in the cession of

territory authority was given to establish a Territorial

Government.

 

     It is clear that the ordinance did not go into operation by

virtue of the authority of the Confederation, but by reason of

its modification and adoption by Congress under the Constitution.

It seems to be supposed, in the opinion of the court, that the

articles of cession placed it on a different footing from

territories subsequently acquired. I am unable to perceive the

force of this distinction. That the ordinance was intended for

the government of the Northwestern Territory, and was limited to

such Territory, is admitted. It was extended to Southern

Territories, with modifications, by acts of Congress, and to some

Northern Territories. But the ordinance was made valid by the act

of Congress, and without such act could have been of no force. It

rested for its validity on the act of Congress, the same, in my

opinion, as the Missouri compromise line.

 

     If Congress may establish a Territorial Government in the

exercise of its discretion, it is a clear principle that a court

cannot control that discretion. This being the case, I do not see

on what ground the act is held to be void. It did not purport to

forfeit property, or take it for public purposes. It only

prohibited slavery; in doing which, it followed the ordinance of

1787.

 

     I will now consider the fourth head, which is: "The effect

of taking slaves into a State or Territory, and so holding them,

where slavery is prohibited."

 

     If the principle laid down in the case of Prigg v. The State

of Pennsylvania is to be maintained, and it is certainly to be

maintained until overruled, as the law of this court, there can

be no difficulty on this point. In that case, the court says:

"The state of slavery is deemed to be a mere municipal

regulation, founded upon and limited to the range of the

territorial laws." If this be so, slavery can exist nowhere

except under the authority of law, founded on usage having the

force of law, or by statutory recognition. And the court further

says: "It is manifest, from this consideration, that if the

Constitution had not contained the clause requiring the rendition

of fugitives from labor, every non-slaveholding State in the

Union would have been at liberty to have declared free all

runaway slaves coming within its limits, and to have given them

entire immunity and protection against the claims of their

masters."

 

     Now, if a slave abscond, he may be reclaimed; but if he

accompany his master into a State or Territory where slavery is

prohibited, such slave cannot be said to have left the service of

his master where his services were legalized. And if slavery be

limited to the range of the territorial laws, how can the slave

be coerced to serve in a State or Territory, not only without the

authority of law, but against its express provisions? What gives

the master the right to control the will of his slave? The local

law, which exists in some form. But where there is no such law,

can the master control the will of the slave by force? Where no

slavery exists, the presumption, without regard to color, is in

favor of freedom. Under such a jurisdiction, may the colored man

be levied on as the property of his master by a creditor? On the

decease of the master, does the slave descend to his heirs as

property? Can the master sell him? Any one or all of these acts

may be done to the slave, where he is legally held to service.

But where the law does not confer this power, it cannot be

exercised.

 

     Lord Mansfield held that a slave brought into England was

free. Lord Stowell agreed with Lord Mansfield in this respect,

and that the slave could not be coerced in England; but on her

voluntary return to Antigua, the place of her slave domicil, her

former status attached. The law of England did not prohibit

slavery, but did not authorize it. The jurisdiction which

prohibits slavery is much stronger in behalf of the slave within

it, than where it only does not authorize it.

 

     By virtue of what law is it, that a master may take his

slave into free territory, and exact from him the duties of a

slave? The law of the Territory does not sanction it. No

authority can be claimed under the Constitution of the United

States, or any law of Congress. Will it be said that the slave is

taken as property, the same as other property which the master

may own? To this I answer, that colored persons are made property

by the law of the State, and no such power has been given to

Congress. Does the master carry with him the law of the State

from which he removes into the Territory? and does that enable

him to coerce his slave in the Territory? Let us test this

theory. If this may be done by a master from one slave State, it

may be done by a master from every other slave State. This right

is supposed to be connected with the person of the master, by

virtue of the local law. Is it transferable? May it be

negotiated, as a promissory note or bill of exchange? If it be

assigned to a man from a free State, may he coerce the slave by

virtue of it? What shall this thing be denominated? Is it

personal or real property? Or is it an indefinable fragment of

sovereignty, which every person carries with him from his late

domicil? One thing is certain, that its origin has been very

recent, and it is unknown to the laws of any civilized country.

 

     A slave is brought to England from one of its islands, where

slavery was introduced and maintained by the mother country.

Although there is no law prohibiting slavery in England, yet

there is no law authorizing it; and, for near a century, its

courts have declared that the slave there is free from the

coercion of the master. Lords Mansfield and Stowell agree upon

this point, and there is no dissenting authority.

 

     There is no other description of property which was not

protected in England, brought from one of its slave islands. Does

not this show that property in a human being does not arise from

nature or from the common law, but, in the language of this

court, "it is a mere municipal regulation, founded upon and

limited to the range of the territorial laws?" This decision is

not a mere argument, but it is the end of the law, in regard to

the extent of slavery. Until it shall be overturned, it is not a

point for argument; it is obligatory on myself and my brethren,

and on all judicial tribunals over which this court exercises an

appellate power.

 

     It is said the Territories are common property of the

States, and that every man has a right to go there with his

property. This is not controverted. But the court say a slave is

not property beyond the operation of the local law which makes

him such. Never was a truth more authoritatively and justly

uttered by man. Suppose a master of a slave in a British island

owned a million of property in England; would that authorize him

to take his slaves with him to England? The Constitution, in

express terms, recognizes the status of slavery as founded on the

municipal law: "No person held to service or labor in one State,

under the laws thereof, escaping into another, shall," &c. Now,

unless the fugitive escape from a place where, by the municipal

law, he is held to labor, this provision affords no remedy to the

master. What can be more conclusive than this? Suppose a slave

escape from a Territory where slavery is not authorized by law,

can he be reclaimed?

 

     In this case, a majority of the court have said that a slave

may be taken by his master into a Territory of the United States,

the same as a horse, or any other kind of property. It is true,

this was said by the court, as also many other things, which are

of no authority. Nothing that has been said by them, which has

not a direct bearing on the jurisdiction of the court, against

which they decided, can be considered as authority. I shall

certainly not regard it as such. The question of jurisdiction,

being before the court, was decided by them authoritatively, but

nothing beyond that question. A slave is not a mere chattel. He

bears the impress of his Maker, and is amenable to the laws of

God and man; and he is destined to an endless existence.

 

     Under this head I shall chiefly rely on the decisions of the

Supreme Courts of the Southern States, and especially of the

State of Missouri.

 

     In the first and second sections of the sixth article of the

Constitution of Illinois, it is declared that neither slavery nor

involuntary servitude shall hereafter be introduced into this

State, otherwise than for the punishment of crimes whereof the

party shall have been duly convicted; and in the second section

it is declared that any violation of this article shall effect

the emancipation of such person from his obligation to service.

In Illinois, a right of transit through the State is given the

master with his slaves. This is a matter which, as I suppose,

belongs exclusively to the State.

 

     The Supreme Court of Illinois, in the case of Jarrot v.

Jarrot, (2 Gilmer, 7,) said:

 

          "After the conquest of this Territory by Virginia,

     she ceded it to the United States, and stipulated that

     the titles and possessions, rights and liberties, of

     the French settlers, should be guarantied to them.

     This, it has been contended, secured them in the

     possession of those negroes as slaves which they held

     before that time, and that neither Congress nor the

     Convention had power to deprive them of it; or, in

     other words, that the ordinance and Constitution should

     not be so interpreted and understood as applying to

     such slaves, when it is therein declared that there

     shall be neither slavery nor involuntary servitude in

     the Northwest Territory, nor in the State of Illinois,

     otherwise than in the punishment of crimes. But it was

     held that those rights could not be thus protected, but

     must yield to the ordinance and Constitution."

 

 

     The first slave case decided by the Supreme Court of

Missouri, contained in the reports, was Winny v. Whitesides, (1

Missouri Rep., 473,) at October term, 1824. It appeared that,

more than twenty-five years before, the defendant, with her

husband, had removed from Carolina to Illinois, and brought with

them the plaintiff; that they continued to reside in Illinois

three or four years, retaining the plaintiff as a slave; after

which, they removed to Missouri, taking her with them.

 

     The court held, that if a slave be detained in Illinois

until he be entitled to freedom, the right of the owner does not

revive when he finds the negro in a slave State.

 

     That when a slave is taken to Illinois by his owner, who

takes up his residence there, the slave is entitled to freedom.

 

     In the case of Lagrange v. Chouteau, (2 Missouri Rep., 20,

at May term, 1828,) it was decided that the ordinance of 1787 was

intended as a fundamental law for those who may choose to live

under it, rather than as a penal statute.

 

     That any sort of residence contrived or permitted by the

legal owner of the slave, upon the faith of secret trusts or

contracts, in order to defeat or evade the ordinance, and thereby

introduce slavery de facto, would entitle such salve to freedom.

 

     In Julia v. McKinney, (3 Missouri Rep., 279,) it was held,

where a slave was settled in the State of Illinois, but with an

intention on the part of the owner to be removed at some future

day, that hiring said slave to a person to labor for one or two

days, and receiving the pay for the hire, the slave is entitled

to her freedom, under the second section of the sixth article of

the Constitution of Illinois.

 

     Rachel v. Walker (4 Missouri Rep., 350, June term, 1836) is

a case involving, in every particular, the principles of the case

before us. Rachel sued for her freedom; and it appeared that she

had been bought as a slave in Missouri, by Stockton, an officer

of the army, taken to Fort Snelling, where he was stationed, and

she was retained there as a slave a year; and then Stockton

removed to Prairie du Chien, taking Rachel with him as a slave,

where he continued to hold her three years, and then he took her

to the State of Missouri, and sold her as a slave.

 

     "Fort Snelling was admitted to be on the west side of

     the Mississippi river, and north of the State of

     Missouri, in the territory of the United States. That

     Prairie du Chien was in the Michigan Territory, on the

     east side of the Mississippi river. Walker, the

     defendant, held Rachel under Stockton."

 

     The court said, in this case:

 

     "The officer lived in Missouri Territory, at the time

     he bought the slave; he sent to a slaveholding country

     and procured her; this was his voluntary act, done

     without any other reason than that of his convenience;

     and he and those claiming under him must be holden to

     abide the consequences of introducing slavery both in

     Missouri Territory and Michigan, contrary to law; and

     on that ground Rachel was declared to be entitled to

     freedom."

 

 

     In answer to the argument that, as an officer of the army,

the master had a right to take his slave into free territory, the

court said no authority of law or the Government compelled him to

keep the plaintiff there as a slave.

 

     "Shall it be said, that because an officer of the army

     owns slaves in Virginia, that when, as officer and

     soldier, he is required to take the command of a fort

     in the non-slaveholding States of Territories, he

     thereby has a right to take with him as many slaves as

     will suit his interests or convenience? It surely

     cannot be law. If this be true, the court say, then it

     is also true that the convenience or supposed

     convenience of the officer repeals, as to him and

     others who have the same character, the ordinance and

     the act of 1821, admitting Missouri into the Union, and

     also the prohibition of the several laws and

     Constitutions of the non-slaveholding States."

 

 

     In Wilson v. Melvin, (4 Missouri R., 592,) it appeared the

defendant left Tennessee with an intention of residing in

Illinois, taking his negroes with him. After a month's stay in

Illinois, he took his negroes to St. Louis, and hired them, then

returned to Illinois. On these facts, the inferior court

instructed the jury that the defendant was a sojourner in

Illinois. This the Supreme Court held was error, and the judgment

was reversed.

 

     The case of Dred Scott v. Emerson (15 Missouri R., 682,

March term, 1852) will now be stated. This case involved the

identical question before us, Emerson having, since the hearing,

sold the plaintiff to Sandford, the defendant.

 

     Two of the judges ruled the case, the Chief Justice

dissenting. It cannot be improper to state the grounds of the

opinion of the court, and of the dissent.

 

     The court say: "Cases of this kind are not strangers in our

court. Persons have been frequently here adjudged to be entitled

to their freedom, on the ground that their masters held them in

slavery in Territories or States in which that institution is

prohibited. From the first case decided in our court, it might be

inferred that this result was brought about by a presumed assent

of the master, from the fact of having voluntarily taken his

slave to a place where the relation of master and slave did not

exist. But subsequent cases bases the right to 'exact the

forfeiture of emancipation,' as they term it, on the ground, it

would seem, that it was the duty of the courts of this State to

carry into effect the Constitution and laws of other States and

Territories, regardless of the rights, the policy, or the

institutions, of the people of this State."

 

     And the court say that the States of the Union, in their

municipal concerns, are regarded as foreign to each other; that

the courts of one State do not take notice of the laws of other

States, unless proved as facts, and that every State has the

right to determine how far its comity to other States shall

extend; and it is laid down, that when there is no act of

manumiss on decreed to the free State, the courts of the slave

States cannot be called to give effect to the law of the free

State. Comity, it alleges, between States, depends upon the

discretion of both, which may be varied by circumstances. And it

is declared by the court, "that times are not as they were when

the former decisions on this subject were made." Since then, not

only individuals but States have been possessed with a dark and

fell spirit in relation to slavery, whose gratification is sought

in the pursuit of measures whose inevitable consequence must be

the overthrow and destruction of our Government. Under such

circumstances, it does not behoove the State of Missouri to show

the least countenance to any measure which might gratify this

spirit. She is willing to assume her full responsibility for the

existence of slavery within her limits, nor does she seek to

share or divide it with others.

 

     Chief Justice Gamble dissented from the other two judges. He

says:

 

          "In every slaveholding State in the Union, the

     subject of emancipation is regulated by statute; and

     the forms are prescribed in which it shall be effected.

     Whenever the forms required by the laws of the State in

     which the master and slave are resident are complied

     with, the emancipation is complete, and the slave is

     free. If the right of the person thus emancipated is

     subsequently drawn in question in another State, it

     will be ascertained and determined by the law of the

     State in which the slave and his former master resided;

     and when it appears that such law has been complied

     with, the right to freedom will be fully sustained in

     the courts of all the slaveholding States, although the

     act of emancipation may not be in the form required by

     law in which the court sits.

 

          "In all such cases, courts continually administer

     the law of the country where the right was acquired;

     and when that law becomes known to the court, it is

     just as much a matter of course to decide the rights of

     the parties according to its requirements, as it is to

     settle the title of real estate situated in our State

     by its own laws."

 

 

     This appears to me a most satisfactory answer to the

argument of the court. Chief Justice continues:

 

          "The perfect equality of the different States lies

     at the foundation of the Union.As the institution of

     slavery in the States is one over which the

     Constitution of the United States gives no power to the

     General Government, it is left to be adopted or

     rejected by the several States, as they think best; not

     can any one State, or number of States, claim the right

     to interfere with any other State upon the question of

     admitting or excluding this institution.

 

          "A citizen of Missouri, who removes with his slave

     to Illinois, has no right to complain that the

     fundamental law of that State to which he removes, and

     in which he makes his residence, dissolves the relation

     between him and his slave. It is as much his own

     voluntary act, as if he had executed a deed of

     emancipation. No one can pretend ignorance of this

     constitutional provision, and," he says, "the decisions

     which have heretofore been made in this State, and in

     many other slaveholding States, give effect to this and

     other similar provisions, on the ground that the

     master, by making the free State the residence of his

     slave, has submitted his right to the operation of the

     law of such State; and this," he says, "is the same in

     law as a regular deed of emancipation."

 

 

     He adds:

 

          "I regard the question as conclusively settled by

     repeated adjudications of this court, and, if I doubted

     or denied the propriety of those decisions, I would not

     feel myself any more at liberty to overturn them, than

     I would any other series of decisions by which the law

     of any other question was settled. There is with me,"

     he says, "nothing in the law relating to slavery which

     distinguishes it from the law on any other subject, or

     allows any more accommodation to the temporary public

     excitements which are gathered around it."

 

 

     "In this State," he says, "it has been recognized from the

beginning of the Government as a correct position in law, that a

master who takes his slave to reside in a State or Territory

where slavery is prohibited, thereby emancipates his slave."

These decisions, which come down to the year 1837, seemed to have

so fully settled the question, that since that time there has

been no case bringing it before the court for any

reconsideration, until the present. In the case of Winny v.

Whitesides, the question was made in the argument, "whether one

nation would execute the penal laws of another," and the court

replied in this language, (Huberus, quoted in 4 Dallas,) which

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;" and the Chief Justice

observed, in the case of Rachel v. Walker, the act of Congress

called the Missouri compromise was held as operative as the

ordinance of 1787.

 

     When Dred Scott, his wife and children, were removed from

Fort Snelling to Missouri, in 1838, they were free, as the law

was then settled, and continued for fourteen years afterwards, up

to 1852, when the above decision was made. Prior to this, for

nearly thirty years, as Chief Justice Gamble declares, the

residence of a master with his slave in the State of Illinois, or

in the Territory north of Missouri, where slavery was prohibited

by the act called the Missouri compromise, would manumit the

slave as effectually as if he had executed a deed of

emancipation; and that an officer of the army who takes his slave

into that State or Territory, and holds him there as a slave,

liberates him the same as any other citizen -- and down to the

above time it was settled by numerous and uniform decisions and

that on the return of the slave to Missouri, his former condition

of slavery did not attach. Such was the settled law of Missouri

until the decision of Scott and Emerson.

 

     In the case of Sylvia v. Kirby, (17 Misso. Rep., 434,) the

court followed the above decision, observing it was similar in

all respects to the case of Scott and Emerson.

 

     This court follows the established construction of the

statutes of a State by its Supreme Court. Such a construction is

considered as a part of the statute, and we follow it to avoid

two rules of property in the same State. But we do not follow the

decisions of the Supreme Court of a State beyond a statutory

construction as a rule of decision for this court. State

decisions are always viewed with respect and treated as

authority; but we follow the settled construction of the

statutes, not because it is of binding authority, but in

pursuance of a rule of judicial policy.

 

     But there is no pretence that the case of Dred Scott v.

Emerson turned upon the construction of a Missouri statute; nor

was there any established rule of property which could have

rightfully influenced the decision. On the contrary, the decision

overruled the settled law for near thirty years.

 

     This is said by my brethren to be a Missouri question; but

there is nothing which gives it this character, except that it

involves the right to persons claimed as slaves who reside in

Missouri, and the decision was made by Supreme Court of that

State.It involves a right claimed under an act of Congress and

the Constitution of Illinois, and which cannot be decided without

the consideration and construction of those laws. But the Supreme

Court of Missouri held, in this case, that it will not regard

either of those laws, without which there was no case before it;

and Dred Scott, having been a slave, remains a slave. In this

respect it is admitted this is a Missouri question -- a case

which has but one side, if the act of Congress and the

Constitution of Illinois are not recognized.

 

     And does such a case constitute a rule of decision for this

court -- a case to be followed by this court? The course of

decision so long and so uniformly maintained established a comity

or law between Missouri and the free States and Territories where

slavery was prohibited, which must be somewhat regarded in this

case. Rights sanctioned for twenty-eight years ought not and

cannot be repudiated, with any semblance of justice, by one or

two decisions, influenced, as declared, by a determination to

counteract the excitement against slavery in the free States.

 

     The courts of Louisiana having held, for a series of years,

that where a master took his slave to France, or any free State,

he was entitled to freedom, and that on bringing him back the

status of slavery did not attach, the Legislature of Louisiana

declared by an act that the slave should not be made free under

such circumstances. This regulated the rights of the master from

the time the act took effect. But the decision of the Missouri

court, reversing a former decision, affects all previous

decisions, technically, made on the same principles, unless such

decisions are protected by the lapse of time or the statute of

limitations. Dred Scott and his family, beyond all controversy,

were free under the decisions made for twenty-eight years, before

the case of Scott v. Emerson. This was the undoubted law of

Missouri for fourteen years after Scott and his family were

brought back to that State. And the grave question arises,

whether this law may be so disregarded as to enslave free

persons. I am strongly inclined to think that a rule of decision

so well settled as not to be questioned, cannot be annulled by a

single decision of the court. Such rights may be inoperative

under the decision in future; but I cannot well perceive how it

can have the same effect in prior cases.

 

     It is admitted, that when a former decision is reversed, the

technical effect of the judgment is to make all previous

adjudications on the same question erroneous. But the case before

us was not that the law had been erroneously construed, but that,

under the circumstances which then existed, that law would not be

recognized; and the reason for this is declared to be the

excitement against the institution of slavery in the free States.

While I lament this excitement as much as any one, I cannot

assent that it shall be made a basis of judicial action.

 

     In 1816, the common law, by statute, was made a part of the

law of Missouri; and that includes the great principles of

international law. These principles cannot be abrogated by

judicial decisions. It will require the same exercise of power to

abolish the common law, as to introduce it. International law is

founded in the opinions generally received and acted on by

civilized nations, and enforced by moral sanctions. It becomes a

more authoritative system when it results from special compacts,

founded on modified rules, adapted to the exigencies of human

society; it is in fact an international morality, adapted to the

best interests of nations. And in regard to the States of this

Union, on the subject of slavery, it is eminently fitted for a

rule of action, subject to the Federal Constitution. "The laws of

nations are but the natural rights of man applied to nations."

(Vattel.)

 

     If the common law have the force of a statutory enactment in

Missouri, it is clear, as it seems to me, that a slave who, by a

residence in Illinois in the service of his master, becomes

entitled to his freedom, cannot again be reduced to slavery by

returning to his former domicil in a slave State. It is

unnecessary to say what legislative power might do by a general

act in such a case, but it would be singular if a freeman could

be made a slave by the exercise of a judicial discretion. And it

would be still more extraordinary if this could be done, not only

in the absence of special legislation, but in a State where the

common law is in force.

 

     It is supposed by some, that the third article in the treaty

of cession of Louisiana to this country, by France, in 1803, may

have some bearing on this question. The article referred to

provides, "that the inhabitants of the ceded territory shall be

incorporated into the Union, and enjoy all the advantages of

citizens of the United States, and in the mean time they shall be

maintained and protected in the free enjoyment of their liberty,

property, and the religion they profess.

 

     As slavery existed in Louisiana at the time of the cession,

it is supposed this is a guaranty that there should be no change

in its condition.

 

     The answer to this is, in the first place, that such a

subject does not belong to the treaty-making power; and any such

arrangement would have been nugatory. And, in the second place,

by no admissible construction can the guaranty be carried further

than the protection of property in slaves at that time in the

ceded territory. And this has been complied with. The

organization of the slave States of Louisiana, Missouri, and

Arkansas, embraced every slave in Louisiana at the time of the

cession. This removes every ground of objection under the treaty.

There is therefore no pretence, growing out of the treaty, that

any part of the territory of Louisiana, as ceded, beyond the

organized States, is slave territory.

 

     Under the fifth head, we were to consider whether the status

of slavery attached to the plaintiff and wife, on their return to

Missouri.

 

     This doctrine is not asserted in the late opinion of the

Supreme Court of Missouri, and up to 1852 the contrary doctrine

was uniformly maintained by that court.

 

     In its late decision, the court say that it will not give

effect in Missouri to the laws of Illinois, or the law of

Congress called the Missouri compromise. This was the effect of

the decision, though its terms were, that the court would not

take notice, judicially, of those laws.

 

     In 1851, the Court of Appeals of South Carolina recognized

the principle, that a slave, being taken to a free State, became

free. (Commonwealth v. Pleasants, 10 Leigh Rep., 697.) In Betty

v. Horton, the Court of Appeals held that the freedom of the

slave was acquired by the action of the laws of Massachusetts, by

the said slave being taken there. (5 Leigh Rep., 615.)

 

     The slave States have generally adopted the rule, that where

the master, by a residence with his slave in a State or Territory

where slavery is prohibited, the slave was entitled to his

freedom everywhere. This was the settled doctrine of the Supreme

Court of Missouri. It has been so held in Mississippi, in

Virginia, in Louisiana, formerly in Kentucky, Maryland, and in

other States.

 

     The law, where a contract is made and is to be executed,

governs it. This does not depend upon comity, but upon the law of

the contract. And if, in the language of the Supreme Court of

Missouri, the master, by taking his slave to Illinois, and

employing him there as a slave, emancipates him as effectually as

by a deed of emancipation, is it possible that such an act is not

matter for adjudication in any slave State where the master may

take him? Does not the master assent to the law, when he places

himself under it in a free State?

 

     The States of Missouri and Illinois are bounded by a common

line. The one prohibits slavery, the other admits it. This has

been done by the exercise of that sovereign power which

appertains to each. We are bound to respect the institutions of

each, as emanating from the voluntary action of the people. Have

the people of either any right to disturb the relations of the

other? Each State rests upon the basis of its own sovereignty,

protected by the Constitution. Our Union has been the foundation

of our prosperity and national glory. Shall we not cherish and

maintain it? This can only be done by respecting the legal rights

of each State.

 

     If a citizen of a free State shall entice or enable a slave

to escape from the service of his master, the law holds him

responsible, not only for the loss of the slave, but he is liable

to be indicted and fined for the misdemeanor. And I am bound here

to say, that I have never found a jury in the four States which

constitute my circuit, which have not sustained this law, where

the evidence required them to sustain it. And it is proper that I

should also say, that more cases have arisen in my circuit, by

reason of its extent and locality, than in all other parts of the

Union. This has been done to vindicate the sovereign rights of

the Southern States, and protect the legal interests of our

brethren of the South.

 

     Let these facts be contrasted with the case now before the

court. Illinois has declared in the most solemn and impressive

form that there shall be neither slavery nor involuntary

servitude in that State, and that any slave brought into it, with

a view of becoming a resident, shall be emancipated. And effect

has been given to this provision of the Constitution by the

decision of the Supreme Court of that State. With a full

knowledge of these facts, a slave is brought from Missouri to

Rock Island, in the State of Illinois, and is retained there as a

slave for two years, and then taken to Fort Snelling, where

slavery is prohibited by the Missouri compromise act, and there

he is detained two years longer in a state of slavery. Harriet,

his wife, was also kept at the same place four years as a slave,

having been purchased in Missouri. They were then removed to the

State of Missouri, and sold as slaves, and in the action before

us they are not only claimed as slaves, but a majority of my

brethren have held that on their being returned to Missouri the

status of slavery attached to them.

 

     I am not able to reconcile this result with the respect due

to the State of Illinois. Having the same rights of sovereignty

as the State of Missouri in adopting a Constitution, I can

perceive no reason why the institutions of Illinois should not

receive the same consideration as those of Missouri. Allowing to

my brethren the same right of judgment that I exercise myself, I

must be permitted to say that it seems to me the principle laid

down will enable the people of a slave State to introduce slavery

into a free State, for a longer or shorter time, as may suit

their convenience; and by returning the slave to the State whence

he was brought, by force or otherwise, the status of slavery

attaches, and protects the rights of the master, and defies the

sovereignty of the free State. There is no evidence before us

that Dred Scott and his family returned to Missouri voluntarily.

The contrary is inferable from the agreed case: "In the year

1838, Dr. Emerson removed the plaintiff and said Harriet, and

their daughter Eliza, from Fort Snelling to the State of

Missouri, where they have ever since resided." This is the agreed

case; and can it be inferred from this that Scott and family

returned to Missouri voluntarily? He was removed; which shows

that he was passive, as a slave, having exercised no volition on

the subject. He did not resist the master by absconding or force.

But that was not sufficient to bring him within Lord Stowell's

decision; he must have acted voluntarily. It would be a mockery

of law and an outrage on his rights to coerce his return, and

then claim that it was voluntary, and on that ground that his

former status of slavery attached.

 

     If the decision be placed on this ground, it is a fact for a

jury to decide, whether the return was voluntary, or else the

fact should be distinctly admitted. A presumption against the

plaintiff in this respect, I say with confidence, is not

authorized from the facts admitted.

 

     In coming to the conclusion that a voluntary return by Grace

to her former domicil, slavery attached, Lord Stowell took great

pains to show that England forced slavery upon her colonies, and

that it was maintained by numerous acts of Parliament and public

policy, and, in short, that the system of slavery was not only

established by Great Britain in her West Indian colonies, but

that it was popular and profitable to many of the wealthy and

influential people of England, who were engaged in trade, or

owned and cultivated plantations in the colonies. No one can read

his elaborate views, and not be struck with the great difference

between England and her colonies, and the free and slave States

of this Union. While slavery in the colonies of England is

subject to the power of the mother country, our States,

especially in regard to slavery, are independent, resting upon

their own sovereignties, and subject only to international laws,

which apply to independent States.

 

     In the case of Williams, who was a slave in Granada, having

run away, came to England, Lord Stowell said: "The four judges

all concur in this -- that he was a slave in Granada, though a

free man in England, and he would have continued a free man in

all other parts of the world except Granada."

 

     Strader v. Graham (10 Howard, 82, and 18 Curtis, 305) has

been cited as having a direct bearing in the case before us. In

that case the court say: "It was exclusively in the power of

Kentucky to determine, for itself, whether the employment of

slaves in another State should or should not make them free on

their return." No question was before the court in that case,

except that of jurisdiction. And any opinion given on any other

point is obiter dictum, and of no authority. In the conclusion of

his opinion, the Chief Justice said: "In every view of the

subject, therefore, this court has no jurisdiction of the case,

and the writ of error must on that ground be dismissed."

 

     In the case of Spencer v. Negro Dennis, (8 Gill's Rep.,

321,) the court say: "Once free, and always free, is the maxim of

Maryland law upon the subject. Freedom having once vested, by no

compact between the master and the the liberated slave, nor by

any condition subsequent, attached by the master to the gift of

freedom, can a state of slavery be reproduced."

 

     In Hunter v. Bulcher, (1 Leigh, 172:)

 

          "By a statute of Maryland of 1796, all slaves

     brought into that State to reside are declared free; a

     Virginian-born slave is carried by his master to

     Maryland; the master settled there, and keeps the slave

     there in bondage for twelve years, the statute in force

     all the time; then he brings him as a slave to

     Virginia, and sells him there. Adjudged, in an action

     brought by the man against the purchaser, that he is

     free."

     Judge Kerr, in the case, says:

 

          "Agreeing, as I do, with the general view taken in

     this case by my brother Green, I would not add a word,

     but to mark the exact extent to which I mean to go. The

     law of Maryland having enacted that slaves carried into

     that State for sale or to reside shall be free, and the

     owner of the slave here having carried him to Maryland,

     and voluntarily submitting himself and the slave to

     that law, it governs the case."

 

 

     In every decision of a slave case prior to that of Dred

Scott v. Emerson, the Supreme Court of Missouri considered it as

turning upon the Constitution of Illinois, the ordinance of 1787,

or the Missouri compromise act of 1820. The court treated these

acts as in force, and held itself bound to execute them, by

declaring the slave to be free who had acquired a domicil under

them with the consent of his master.

 

     The late decision reversed this whole line of adjudication,

and held that neither the Constitution and laws of the States,

nor acts of Congress in relation to Territories, could be

judicially noticed by the Supreme Court of Missouri. This is

believed to be in conflict with the decisions of all the courts

in the Southern States, with some exceptions of recent cases.

 

     In Marie Louise v. Morat et al., (9 Louisiana Rep., 475,) it

was held, where a slave having been taken to the kingdom of

France or other country by the owner, where slavery is not

tolerated, operates on the condition of the slave, and produces

immediate emancipation; and that, where a slave thus becomes

free, the master cannot reduce him again to slavery.

 

     Josephine v. Poultney, (Louisiana Annual Rep., 329,) "where

the owner removes with a slave into a State in which slavery is

prohibited, with the intention of residing there, the slave will

be thereby emancipated, and their subsequent return to the State

of Louisiana cannot restore the relation of master and slave." To

the same import are the cases of Smith v. Smith, (13 Louisiana

Rep., 441; Thomas v. Generis, Louisiana Rep., 483; Harry et al.

v. Decker and Hopkins, Walker's Mississippi Rep., 36.) It was

held that, "slaves within the jurisdiction of the Northwestern

Territory became freemen by virtue of the ordinance of 1787, and

can assert their claim to freedom in the courts of Mississippi."

(Griffith v. Fanny, 1 Virginia Rep., 143.) It was decided that a

negro held in servitude in Ohio, under a deed executed in

Virginia, is entitled to freedom by the Constitution of Ohio.

 

     The case of Rhodes v. Bell (2 Howard, 307; 15 Curtis, 152)

involved the main principle in the case before us. A person

residing in Washington city purchased a slave in Alexandria, and

brought him to Washington. Washington continued under the law of

Maryland, Alexandria under the law of Virginia. The act of

Maryland of November, 1796, (2 Maxcy's Laws, 351,) declared any

one who shall bring any negro, mulatto, or other slave, into

Maryland, such slave should be free. The above slave, by reason

of his being brought into Washington city, was declared by this

court to be free. This, it appears to me, is a much stronger case

against the slave than the facts in the case of Scott.

 

     In Bush v. White, (3 Monroe, 104,) the court said:

 

          "That the ordinance was paramount to the

     Territorial laws, and restrained the legislative power

     there as effectually as a Constitution in an organized

     State.It was a public act of the Legislature of the

     Union, and a part of the supreme law of the land; and,

     as such, this court is as much bound to take notice of

     it as it can be of any other law."

 

 

     In the case of Rankin v. Lydia, before cited, Judge Mills,

speaking for the Court of Appeals of Kentucky, says:

 

          "If, by the positive provision in our code, we can

     and must hold our slaves in the one case, and statutory

     provisions equally positive decide against that right

     in the other, and liberate the slave, he must, by an

     authority equally imperious, be declared free. Every

     argument which supports the right of the master on one

     side, based upon the force of written law, must be

     equally conclusive in favor of the slave, when he can

     point out in the statute the clause which secures his

     freedom."

 

 

And he further said:

 

          "Free people of color in all the States are, it is

     believed, quasi citizens, or, at least, denizens.

     Although none of the States may allow them the

     privilege of office and suffrage, yet all other civil

     and conventional rights are secured to them; at least,

     such rights were evidently secured to them by the

     ordinance in question for the government of Indiana. If

     these rights are vested in that or any other portion of

     the United States, can it be compatible with the spirit

     of our confederated Government to deny their existence

     in any other part? Is there less comity existing

     between State and State, or State and Territory, than

     exists between the despotic Governments of Europe?"

 

 

     These are the words of a learned and great judge, born and

educated in a slave State.

 

     I now come to inquire, under the sixth and last head,

"whether the decisions of the Supreme Court of Missouri, on the

question before us, are binding on this court."

 

     While we respect the learning and high intelligence of the

State courts, and consider their decisions, with others, as

authority, we follow them only where they give a construction to

the State statutes. On this head, I consider myself fortunate in

being able to turn to the decision of this court, given by Mr.

Justice Grier, in Pease v. Peck, a case from the State of

Michigan, (18 Howard, 589,) decided in December term, 1855.

Speaking for the court, Judge Grier said:

 

          "We entertain the highest respect for that learned

     court, (the Supreme Court of Michigan,) and in any

     question affecting the construction of their own laws,

     where we entertain any doubt, would be glad to be

     relieved from doubt and responsibility by reposing on

     their decision. There are, it is true, many dicta to be

     found in our decisions, averring that the courts of the

     United States are bound to follow the decisions of the

     State courts on the construction of their own laws. But

     although this may be correct, yet a rather strong

     expression of a general rule, it cannot be received as

     the annunciation of a maxim of universal application.

     Accordingly, our reports furnish many cases of

     exceptions to it. In all cases where there is a settled

     construction of the laws of a State, by its highest

     judicature established by admitted precedent, it is the

     practice of the courts of the United States to receive

     and adopt it, without criticism or further inquiry.

     When the decisions of the State court are not

     consistent, we do not feel bound to follow the last, if

     it is contrary to our own convictions; and much more is

     this the case where, after a long course of consistent

     decisions, some new light suddenly springs up, or an

     excited public opinion has elicited new doctrines

     subversive of former safe precedent."

 

 

     These words, it appears to me, have a stronger application

to the case before us than they had to the cause in which they

were spoken as the opinion of this court; and I regret that they

do not seem to be as fresh in the recollection of some of my

brethren as in my own. For twenty-eight years, the decisions of

the Supreme Court of Missouri were consistent on all the points

made in this case. But this consistent course was suddenly

terminated, whether by some new light suddenly springing up, or

an excited public opinion, or both, it is not necessary to say.

In the case of Scott v. Emerson, in 1852, they were overturned

and repudiated.

 

     This, then, is the very case in which seven of my brethren

declared they would not follow the last decision. On this

authority I may well repose. I can desire no other or better

basis.

 

     But there is another ground which I deem conclusive, and

which I will re-state.

 

     The Supreme Court of Missouri refused to notice the act of

Congress or the Constitution of Illinois, under which Dred Scott,

his wife and children, claimed that they are entitled to freedom.

 

     This being rejected by the Missouri court, there was no case

before it, or least it was a case with only one side. And this is

the case which, in the opinion of this court, we are bound to

follow. The Missouri court disregards the express provisions of

an act of Congress and the Constitution of a sovereign State,

both of which laws for twenty-eight years it had not only

regarded, but carried into effect.

 

     If a State court may do this, on a question involving the

liberty of a human being, what protection do the laws afford? So

far from this being a Missouri question, it is a question, as it

would seem, within the twenty-fifth section of the judiciary act,

where a right to freedom being set up under the act of Congress,

and the decision being against such right, it may be brought for

revision before this court, from the Supreme Court of Missouri.

 

     I think the judgment of the court below should be reversed.

 

 

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