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.