As appears from an agreed statement of facts, this question has been

before the highest court of the State of Missouri, and a judgment

rendered that this residence in the free State has no such effect;

but, on the contrary, that his original condition continued unchanged.

The court below, the Circuit Court of the United States for Missouri,

in which this suit was afterwards brought, followed the decision of

the State court, and rendered a like judgment against the plaintiff.

The argument against these decisions is, that the laws of Illinois,

forbidding slavery within her territory, had the effect to set the

slave free while residing in that State, and to impress upon him the

condition and status of a freeman; and that, by force of these laws,

this status and condition accompanied him on his return to the slave

State, and of consequence he could not be there held as a slave.

This question has been examined in the courts of several of the

slaveholding States, and different opinions expressed and conclusions

arrived at. We shall hereafter refer to some of them, and to the

principles upon which they are founded. Our opinion is, that the

question is one which belongs to each State to decide for itself,

either by its Legislature or courts of justice; and hence, in respect

to the case before us, to the State of Missouri--a question

exclusively of Missouri law, and which, when determined by that State,

it is the duty of the Federal courts to follow it. In other words,

except in cases where the power is restrained by the Constitution of

the United States, the law of the State is supreme over the subject of

slavery within its jurisdiction.

As a practical illustration of the principle, we may refer to the

legislation of the free States in abolishing slavery, and prohibiting

its introduction into their territories. Confessedly, except as

restrained by the Federal Constitution, they exercised, and

rightfully, complete and absolute power over the subject. Upon what

principle, then, can it be denied to the State of Missouri? The power

flows from the sovereign character of the States of this Union;

sovereign, not merely as respects the Federal Government--except as

they have consented to its limitation--but sovereign as respects each

other. Whether, therefore, the State of Missouri will recognise or

give effect to the laws of Illinois within her territories on the

subject of slavery, is a question for her to determine. Nor is there

any constitutional power in this Government that can rightfully

control her.

Every State or nation possesses an exclusive sovereignty and

jurisdiction within her own territory; and, her laws affect and bind

all property and persons residing within it. It may regulate the

manner and circumstances under which property is held, and the

condition, capacity, and state, of all persons therein; and, also, the

remedy and modes of administering justice. And it is equally true,

that no State or nation can affect or bind property out of its

territory, or persons not residing within it. No State, therefore, can

enact laws to operate beyond its own dominions, and, if it attempts to

do so, it may be lawfully refused obedience. Such laws can have no

inherent authority extra-territorially. This is the necessary result

of the independence of distinct and separate sovereignties.

Now, it follows from these principles, that whatever force or effect

the laws of one State or nation may have in the territories of

another, must depend solely upon the laws and municipal regulations of

the latter, upon its own jurisprudence and polity, and upon its own

express or tacit consent.

Judge Story observes, in his Conflict of Laws, (p. 24,) "that a State

may prohibit the operation of all foreign laws, and the rights growing

out of them, within its territories." "And that when its code speaks

positively on the subject, it must be obeyed by all persons who are

within reach of its sovereignty; when its customary unwritten or

common law speaks directly on the subject, it is equally to be

obeyed."

Nations, from convenience and comity, and from mutual interest, and a

sort of moral necessity to do justice, recognise and administer the

laws of other countries. But, of the nature, extent, and utility, of

them, respecting property, or the state and condition of persons

within her territories, each nation judges for itself; and is never

bound, even upon the ground of comity, to recognise them, if

prejudicial to her own interests. The recognition is purely from

comity, and not from any absolute or paramount obligation.

Judge Story again observes, (398,) "that the true foundation and

extent of the obligation of the laws of one nation within another is

the voluntary consent of the latter, and is inadmissible when they are

contrary to its known interests." And he adds, "in the silence of any

positive rule affirming or denying or restraining the operation of the

foreign laws, courts of justice presume the tacit adoption of them by

their own Government, unless they are repugnant to its policy or

prejudicial to its interests." (See also 2 Kent Com., p. 457; 13

Peters, 519, 589.)

These principles fully establish, that it belongs to the sovereign

State of Missouri to determine by her laws the question of slavery

within her jurisdiction, subject only to such limitations as may be

found in the Federal Constitution; and, further, that the laws of

other States of the Confederacy, whether enacted by their Legislatures

or expounded by their courts, can have no operation within her

territory, or affect rights growing out of her own laws on the

subject. This is the necessary result of the independent and sovereign

character of the State. The principle is not peculiar to the State of

Missouri, but is equally applicable to each State belonging to the

Confederacy. The laws of each have no extra-territorial operation

within the jurisdiction of another, except such as may be voluntarily

conceded by her laws or courts of justice. To the extent of such

concession upon the rule of comity of nations, the foreign law may

operate, as it then becomes a part of the municipal law of the State.

When determined that the foreign law shall have effect, the municipal

law of the State retires, and gives place to the foreign law.

In view of these principles, let us examine a little more closely the

doctrine of those who maintain that the law of Missouri is not to

govern the status and condition of the plaintiff. They insist that the

removal and temporary residence with his master in Illinois, where

slavery is inhibited, had the effect to set him free, and that the

same effect is to be given to the law of Illinois, within the State of

Missouri, after his return. Why was he set free in Illinois? Because

the law of Missouri, under which he was held as a slave, had no

operation by its own force extra-territorially; and the State of

Illinois refused to recognise its effect within her limits, upon

principles of comity, as a state of slavery was inconsistent with her

laws, and contrary to her policy. But, how is the case different on

the return of the plaintiff to the State of Missouri? Is she bound to

recognise and enforce the law of Illinois? For, unless she is, the

status and condition of the slave upon his return remains the same as

originally existed. Has the law of Illinois any greater force within

the jurisdiction of Missouri, than the laws of the latter within that

of the former? Certainly not. They stand upon an equal footing.

Neither has any force extra-territorially, except what may be

voluntarily conceded to them.

It has been supposed, by the counsel for the plaintiff, that a rule

laid down by Huberus had some bearing upon this question. Huberus

observes that "personal qualities, impressed by the laws of any place,

surround and accompany the person wherever he goes, with this effect:

that in every place he enjoys and is subject to the same law which

other persons of his class elsewhere enjoy or are subject to." (De

Confl. Leg., lib. 1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con.

Laws, pp. 59, 60.)

The application sought to be given to the rule was this: that as Dred

Scott was free while residing in the State of Illinois, by the laws of

that State, on his return to the State of Missouri he carried with him

the personal qualities of freedom, and that the same effect must be

given to his status there as in the former State. But the difficulty

in the case is in the total misapplication of the rule.

These personal qualities, to which Huberus refers, are those impressed

upon the individual by the law of the domicil; it is this that the

author claims should be permitted to accompany the person into

whatever country he might go, and should supersede the law of the

place where he had taken up a temporary residence.

Now, as the domicil of Scott was in the State of Missouri, where he

was a slave, and from whence he was taken by his master into Illinois

for a temporary residence, according to the doctrine of Huberus, the

law of his domicil would have accompanied him, and during his

residence there he would remain in the same condition as in the State

of Missouri. In order to have given effect to the rule, as claimed in

the argument, it should have been first shown that a domicil had been

acquired in the free State, which cannot be pretended upon the agreed

facts in the case. But the true answer to the doctrine of Huberus is,

that the rule, in any aspect in which it may be viewed, has no bearing

upon either side of the question before us, even if conceded to the

extent laid down by the author; for he admits that foreign Governments

give effect to these laws of the domicil no further than they are

consistent with their own laws, and not prejudicial to their own

subjects; in other words, their force and effect depend upon the law

of comity of the foreign Government. We should add, also, that this

general rule of Huberus, referred to, has not been admitted in the

practice of nations, nor is it sanctioned by the most approved jurists

of international law. (Story Con., sec. 91, 96, 103, 104; 2 Kent.

Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.)

We come now to the decision of this court in the case of Strader et

al. _v._ Graham, (10 How., p. 2.) The case came up from the Court of

Appeals, in the State of Kentucky. The question in the case was,

whether certain slaves of Graham, a resident of Kentucky, who had been

employed temporarily at several places in the State of Ohio, with

their master's consent, and had returned to Kentucky into his service,

had thereby become entitled to their freedom. The Court of Appeals

held that they had not. The case was brought to this court under the

twenty-fifth section of the judiciary act. This court held that it had

no jurisdiction, for the reason, the question was one that belonged

exclusively to the State of Kentucky. The Chief Justice, in delivering

the opinion of the court, observed that "every State has an undoubted

right to determine the status or domestic and social condition of the

persons domiciled within its territory, except in so far as the powers

of the States in this respect are restrained, or duties and

obligations imposed upon them, by the Constitution of the United

States. There is nothing in the Constitution of the United States, he

observes, that can in any degree control the law of Kentucky upon this

subject. And the condition of the negroes, therefore, as to freedom or

slavery, after their return, depended altogether upon the laws of that

State, and could not be influenced by the laws of Ohio. It was

exclusively in the power of Kentucky to determine, for herself,

whether their employment in another State should or should not make

them free on their return."

It has been supposed, in the argument on the part of the plaintiff,

that the eighth section of the act of Congress passed March 6, 1820,

(3 St. at Large, p. 544,) which prohibited slavery north of thirty-six

degrees thirty minutes, within which the plaintiff and his wife

temporarily resided at Fort Snelling, possessed some superior virtue

and effect, extra-territorially, and within the State of Missouri,

beyond that of the laws of Illinois, or those of Ohio in the case of

Strader et al. _v._ Graham. A similar ground was taken and urged upon

the court in the case just mentioned, under the ordinance of 1787,

which was enacted during the time of the Confederation, and re-enacted

by Congress after the adoption of the Constitution, with some

amendments adapting it to the new Government. (1 St. at Large, p. 50.)

In answer to this ground, the Chief Justice, in delivering the opinion

of the court, observed: "The argument assumes that the six articles

which that ordinance declares to be perpetual, are still in force in

the States since formed within the territory, and admitted into the

Union. If this proposition could be maintained, it would not alter the

question; for the regulations of Congress, under the old Confederation

or the present Constitution, for the government of a particular

Territory, could have no force beyond its limits. It certainly could

not restrict the power of the States, within their respective

territories, nor in any manner interfere with their laws and

institutions, nor give this court control over them.

"The ordinance in question, he observes, if still in force, could have

no more operation than the laws of Ohio in the State of Kentucky, and

could not influence the decision upon the rights of the master or the

slaves in that State."

This view, thus authoritatively declared, furnishes a conclusive

answer to the distinction attempted to be set up between the

extra-territorial effect of a State law and the act of Congress in

question.

It must be admitted that Congress possesses no power to regulate or

abolish slavery within the States; and that, if this act had attempted

any such legislation, it would have been a nullity. And yet the

argument here, if there be any force in it, leads to the result, that

effect may be given to such legislation; for it is only by giving the

act of Congress operation within the State of Missouri, that it can

have any effect upon the question between the parties. Having no such

effect directly, it will be difficult to maintain, upon any consistent

reasoning, that it can be made to operate indirectly upon the subject.

The argument, we think, in any aspect in which it may be viewed, is

utterly destitute of support upon any principles of constitutional

law, as, according to that, Congress has no power whatever over the

subject of slavery within the State; and is also subversive of the

established doctrine of international jurisprudence, as, according to

that, it is an axiom that the laws of one Government have no force

within the limits of another, or extra-territorially, except from the

consent of the latter.

It is perhaps not unfit to notice, in this connection, that many of

the most eminent statesmen and jurists of the country entertain the

opinion that this provision of the act of Congress, even within the

territory to which it relates, was not authorized by any power under

the Constitution. The doctrine here contended for, not only upholds

its validity in the territory, but claims for it effect beyond and

within the limits of a sovereign State--an effect, as insisted, that

displaces the laws of the State, and substitutes its own provisions in

their place.

The consequences of any such construction are apparent. If Congress

possesses the power, under the Constitution, to abolish slavery in a

Territory, it must necessarily possess the like power to establish it.

It cannot be a one-sided power, as may suit the convenience or

particular views of the advocates. It is a power, if it exists at all,

over the whole subject; and then, upon the process of reasoning which

seeks to extend its influence beyond the Territory, and within the

limits of a State, if Congress should establish, instead of abolish,

slavery, we do not see but that, if a slave should be removed from

the Territory into a free State, his status would accompany him, and

continue, notwithstanding its laws against slavery. The laws of the

free State, according to the argument, would be displaced, and the act

of Congress, in its effect, be substituted in their place. We do not

see how this conclusion could be avoided, if the construction against

which we are contending should prevail. We are satisfied, however, it

is unsound, and that the true answer to it is, that even conceding,

for the purposes of the argument, that this provision of the act of

Congress is valid within the Territory for which it was enacted, it

can have no operation or effect beyond its limits, or within the

jurisdiction of a State. It can neither displace its laws, nor change

the status or condition of its inhabitants.

Our conclusion, therefore, is, upon this branch of the case, that the

question involved is one depending solely upon the law of Missouri,

and that the Federal court sitting in the State, and trying the case

before us, was bound to follow it.

The remaining question for consideration is, What is the law of the

State of Missouri on this subject? And it would be a sufficient answer

to refer to the judgment of the highest court of the State in the very

case, were it not due to that tribunal to state somewhat at large the

course of decision and the principles involved, on account of some

diversity of opinion in the cases. As we have already stated, this

case was originally brought in the Circuit Court of the State, which

resulted in a judgment for the plaintiff. The case was carried up to

the Supreme Court for revision. That court reversed the judgment

below, and remanded the cause to the circuit, for a new trial. In that

state of the proceeding, a new suit was brought by the plaintiff in

the Circuit Court of the United States, and tried upon the issues and

agreed case before us, and a verdict and judgment for the defendant,

that court following the decision of the Supreme Court of the State.

The judgment of the Supreme Court is reported in the 15 Misso. R., p.

576. The court placed the decision upon the temporary residence of the

master with the slaves in the State and Territory to which they

removed, and their return to the slave State; and upon the principles

of international law, that foreign laws have no extra-territorial

force, except such as the State within which they are sought to be

enforced may see fit to extend to them, upon the doctrine of comity of

nations.

This is the substance of the grounds of the decision.

The same question has been twice before that court since, and the same

judgment given, (15 Misso. R., 595; 17 Ib., 434.) It must be admitted,

therefore, as the settled law of the State, and, according to the

decision in the case of Strader et al. _v._ Graham, is conclusive of

the case in this court.

It is said, however, that the previous cases and course of decision in

the State of Missouri on this subject were different, and that the

courts had held the slave to be free on his return from a temporary

residence in the free State. We do not see, were this to be admitted,

that the circumstance would show that the settled course of decision,

at the time this case was tried in the court below, was not to be

considered the law of the State. Certainly, it must be, unless the

first decision of a principle of law by a State court is to be

permanent and irrevocable. The idea seems to be, that the courts of a

State are not to change their opinions, or, if they do, the first

decision is to be regarded by this court as the law of the State. It

is certain, if this be so, in the case before us, it is an exception

to the rule governing this court in all other cases. But what court

has not changed its opinions? What judge has not changed his?

Waiving, however, this view, and turning to the decisions of the

courts of Missouri, it will be found that there is no discrepancy

between the earlier and the present cases upon this subject. There are

some eight of them reported previous to the decision in the case

before us, which was decided in 1852. The last of the earlier cases

was decided in 1836. In each one of these, with two exceptions, the

master or mistress removed into the free State with the slave, with a

view to a permanent residence--in other words, to make that his or her

domicil. And in several of the cases, this removal and permanent

residence were relied on, as the ground of the decision in favor of

the plaintiff. All these cases, therefore, are not necessarily in

conflict with the decision in the case before us, but consistent with

it. In one of the two excepted cases, the master had hired the slave

in the State of Illinois from 1817 to 1825. In the other, the master

was an officer in the army, and removed with his slave to the military

post of Fort Snelling, and at Prairie du Chien, in Michigan,

temporarily, while acting under the orders of his Government. It is

conceded the decision in this case was departed from in the case

before us, and in those that have followed it. But it is to be

observed that these subsequent cases are in conformity with those in

all the slave States bordering on the free--in Kentucky, (2 Marsh.,

476; 5 B. Munroe, 176; 9 Ib., 565)--in Virginia, (1 Rand., 15; 1

Leigh, 172; 10 Grattan, 495)--in Maryland, (4 Harris and McHenry, 295,

322, 325.) In conformity, also, with the law of England on this

subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and with the opinions

of the most eminent jurists of the country. (Story's Confl., 396 a; 2

Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See Corresp.

between Lord Stowell and Judge Story, 1 vol. Life of Story, p. 552,

558.)

Lord Stowell, in communicating his opinion in the case of the slave

Grace to Judge Story, states, in his letter, what the question was

before him, namely: "Whether the emancipation of a slave brought to

England insured a complete emancipation to him on his return to his

own country, or whether it only operated as a suspension of slavery in

England, and his original character devolved on him again upon his

return." He observed, "the question had never been examined since an

end was put to slavery fifty years ago," having reference to the

decision of Lord Mansfield in the case of Somersett; but the practice,

he observed, "has regularly been, that on his return to his own

country, the slave resumed his original character of slave." And so

Lord Stowell held in the case.

Judge Story, in his letter in reply, observes: "I have read with great

attention your judgment in the slave case, &c. Upon the fullest

consideration which I have been able to give the subject, I entirely

concur in your views. If I had been called upon to pronounce a

judgment in a like case, I should have certainly arrived at the same

result." Again he observes: "In my native State, (Massachusetts,) the

state of slavery is not recognised as legal; and yet, if a slave

should come hither, and afterwards return to his own home, we should

certainly think that the local law attached upon him, and that his

servile character would be redintegrated."

We may remark, in this connection, that the case before the Maryland

court, already referred to, and which was decided in 1799, presented

the same question as that before Lord Stowell, and received a similar

decision. This was nearly thirty years before the decision in that

case, which was in 1828. The Court of Appeals observed, in deciding

the Maryland case, that "however the laws of Great Britain in such

instances, operating upon such persons there, might interfere so as to

prevent the exercise of certain acts by the masters, not permitted, as

in the case of Somersett, yet, upon the bringing Ann Joice into this

State, (then the province of Maryland,) the relation of master and

slave continued in its extent, as authorized by the laws of this

State." And Luther Martin, one of the counsel in that case, stated, on

the argument, that the question had been previously decided the same

way in the case of slaves returning from a residence in Pennsylvania,

where they had become free under her laws.

Report of the Decision of the Supreme Court of the United States, and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F. A. Sandford December Term, 1856. · 第 7 / 26 段