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 Const.i.tution. "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 ent.i.tled 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 a.s.serted 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 recognised 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 Ma.s.sachusetts, 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 ent.i.tled 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, emanc.i.p.ates him as effectually as by a deed of emanc.i.p.ation, 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 a.s.sent 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 inst.i.tutions 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 Const.i.tution. 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 const.i.tute 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 emanc.i.p.ated. And effect has been given to this provision of the Const.i.tution 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 Const.i.tution, I can perceive no reason why the inst.i.tutions 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 pa.s.sive, 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 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 [Transcriber"s Note: Fulcher], (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 Const.i.tution 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 Const.i.tution 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,) [Transcriber"s Note: correct citation is Louise v. Marot, 9 La. 473]
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 emanc.i.p.ation; 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 emanc.i.p.ated, 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 a.s.sert their claim to freedom in the courts of Mississippi." (Griffith _v._ f.a.n.n.y, 1 Virginia Rep., 143.) It was decided that a negro held in servitude in Ohio, under a deed executed in Virginia, is ent.i.tled to freedom by the Const.i.tution 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 say:
"That the ordinance was paramount to the Territorial laws, and restrained the legislative power there as effectually as a Const.i.tution 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 Const.i.tution of Illinois, under which Dred Scott, his wife and children, claimed that they are ent.i.tled 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 Const.i.tution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect.