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, recognises 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 on 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 [Transcriber's Note: La Grange] _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 slave 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 or 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 base
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 manumission 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; nor 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 recognised 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 the 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 recognised.
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 recognised; 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.